1) HALACHAH: CONSECRATING A RENTED HOUSE
QUESTION: The Gemara quotes the Tosefta that teaches that when the owner of a rented property is Makdish the property, the tenant must pay the rental fee to Hekdesh. The Gemara explains that this does not mean that the owner was Makdish the actual house; had he made the actual house Hekdesh, the tenant would transgress the prohibition of Me'ilah by living in it, and, as a result of being used for ordinary purposes, the house would lose its Kedushah and become Chulin again. Rather, the Tosefta means that when the owner declares that the rental fee will be Hekdesh whenever the tenant will pay it, his words take effect and the rental fee must be given to Hekdesh.
The Gemara here clearly implies that it is possible for a landlord to be Makdish a property that is leased to a tenant.
The Gemara in Kesuvos (59b), however, implies that a landowner is not able to be Makdish a leased property. The Gemara there discusses the case of a landowner who borrowed money and gave his field as collateral to the lender. If the landowner wants to be Makdish his field, then he must say, "The field that I gave you will be Hekdesh when I redeem it from you." This implies that the owner is able to be Makdish his property only when it returns to his full possession, but not when it is in the temporary possession of someone else. How are these two Gemaras to be reconciled? (TOSFOS DH Hachi Ka'amar)
(a) TOSFOS here and the ROSH in Nedarim (46b) answer that in this case the landlord is able to sanctify only the amount of the property that is worth more than the value of the rent. (For example, if the house is worth $100,000 and the tenant is paying $1,000 per month for five months, then the owner may sanctify up to $95,000 worth of the house.) Similarly, in the case in Kesuvos, the borrower (the landowner) is able to sanctify the amount of the field which is greater than the value of the loan for which it was collateralized. (For example, if the field is worth $10,000 and the loan is $6,000, he may sanctify $4,000 worth of the field.) In the case in Kesuvos, the reason why the owner needs to say that he sanctifies the field "when I redeem it " is that he wants to sanctify the entire value of the field.
(b) Tosfos answers further that there is a difference between a landlord and a borrower. The landlord is able to sanctify the house because the house will be returned to his full possession after a given time period, without any action on his part. In contrast, a borrower cannot sanctify the field that he made as collateral because the field is not going to return to him unless he performs an action to get it back (he must pay back his debt). Therefore, the field is considered less in his domain than the landlord's house.
(c) Tosfos suggests another answer based on the Yerushalmi (Pesachim 4:9). Tosfos explains that the landlord is able to sanctify the house as long as the tenant has not yet paid him the rental fee, because the house is considered to be in the full possession of the owner. If the tenant has already paid the rental fee, then the landlord cannot sanctify the house, because the payment of the rental fee finalizes the transaction and takes the house out of the domain of the owner and puts it into the domain of the tenant. The case of the field that was made collateral is comparable to the case of the tenant who already paid the rental fee. The loan given to the borrower (for which the lender received the field as collateral) is like the rental fee given by the tenant (for which he received the house).
(The BI'UR HA'GRA (CM 312:7) points out that the landlord may sanctify the house before the tenant pays the rent only when no specific term of rental was specified. If a time period was specified for the duration of the lease, then the transaction is considered finalized even before the tenant pays the rental, and the landlord is not able to sanctify the house.)
(d) The RAN in Nedarim (46b, DH Heichi Dami) answers that in the case of the Gemara here, the landlord said that he is leasing to the tenant "any house" of his that the tenant wants to occupy. He did not specify "this house" in particular. Therefore, the landlord is able to sanctify the house and give the tenant another one in its place. If, however, the landlord explicitly said that he would give the tenant this particular house, then he cannot be Makdish it (just as the borrower cannot be Makdish the field that he gave as collateral).
HALACHAH: The TUR (YD 221) cites his father, the ROSH, who rules that the landlord may sanctify only the value of the house (or field) for which the tenant is not paying (like answer (a) above). This is also the Halachah as recorded by the SHULCHAN ARUCH (YD 221:7).
The SHACH (YD 221:45), however, cites numerous proofs to refute the ruling of the Rosh and other Rishonim. He concludes that only when the landlord did not specify a particular house is he able to sanctify it (like answer (d) above).
2) BEING "FORCED" TO "WANT" TO DO A MITZVAH
QUESTION: The Beraisa says that Beis Din may force a man to fulfill his obligation to bring a Korban. Even though the verse, "li'Retzono" (Vayikra 1:3), requires that a person must bring his Korban willingly and not under duress, the Gemara explains that Beis Din may compel him with force until he says that he wants to do the Mitzvah willingly.
How can a person be forced to do a Mitzvah "willingly"?
ANSWER: The RAMBAM (Hilchos Gerushin 2:20) has a unique explanation for this Gemara. His explanation is based on a profound understanding of the nature of the Jew.
The Rambam maintains that every Jew, in essence, has a natural desire to do what is right and what is the will of Hash-m. If a Jew is not acting properly, it is because he is being coerced by external forces (namely, the Yetzer ha'Ra) to act contrary to his natural tendency. When Beis Din involves itself to make sure that a person fulfills Mitzvos in the proper manner, they do not force him to act against his will. Rather, on the contrary, they free him from the influence of the Yetzer ha'Ra which is impelling him to act against what he really would like to do -- to fulfill Hash-m's will. (See also Insights to Kidushin 50:2, Chagigah 27:3, and Bava Basra 48:1.)
3) "OLAH TZERICHAH DA'AS"
QUESTION: Shmuel and Ula argue about what part of the process of offering a Korban requires a person's consent when his friend brings a Korban on his behalf. Shmuel (21a) maintains that the person must show consent when the animal is designated as a Korban. Ula maintains that he must show his consent for the Korban to be brought for him at the moment that it attains Kaparah for him (at the time of the Zerikas ha'Dam, which is long after it has been designated as a Korban). What is the logical basis behind their argument?
ANSWER: TOSFOS (DH Mai) explains the logic of each opinion as follows. Shmuel maintains that the person must consent when the Korban is designated, because without his consent we assume that a person does not want to gain atonement through someone else's animal, but that he wants to use his own.
Ula maintains that the person must consent at the moment that the Korban attains Kaparah, because without his consent we assume that a person wants to perform the Mitzvah of Semichah (leaning one's hands on the Korban and reciting Viduy for his Aveiros), which he cannot perform if another person brings the Korban for him.
4) ASSESSING THE PROPERTY OF ORPHANS FOR THIRTY DAYS
QUESTION: The Mishnah teaches that Beis Din appraises the value of the property of orphans for thirty days. This means that before Beis Din sells the property inherited by orphans to pay a debt owed by their father, they must first estimate the value of the property and then announce for thirty days that they are selling the property of orphans (see Background).
Why does the Mishnah mention specifically the property of orphans? In the case of every person who owes money and has nothing other than his land with which to repay his debt, and who is unable to sell his property himself, Beis Din assesses his property for thirty days in order to ascertain the property's value for the sake of paying back his debt with it (Bava Metzia 35b). Why does the Mishnah mention that this procedure is done only for Yesomim?
ANSWER: TOSFOS (DH Shum) answers that the Mishnah is teaching that even with regard to orphans, the appraisal is done only for thirty days, and not for longer. One might have thought that orphans are granted unique status and the appraisal of their property must last for sixty days. Therefore, the Mishnah specifies orphans when it says that the appraisal is done for only thirty days.