1) "KINYAN HA'PEROS K'KINYAN HA'GUF"

QUESTION: Rebbi Yochanan rules that a Kinyan Peros (a Kinyan on the output produced by an item, such as the fruit produced by a field) is like a Kinyan ha'Guf (a Kinyan on the field itself). Reish Lakish disagrees and rules that a Kinyan Peros is not like a Kinyan ha'Guf. According to Reish Lakish, if a person has a Kinyan Peros (he buys the rights to the produce of a field), when he brings Bikurim from that produce he may not read the Parshah of Bikurim. Since he does not have a Kinyan ha'Guf on the field itself he cannot say, "This is produce of the land which Hash-m has given to me," since he does not own the land. He has only a Kinyan Peros, which is not considered a Kinyan on the land.

Rav Yosef points out that if Rebbi Yochanan would have ruled that a Kinyan Peros is not like a Kinyan ha'Guf, Rebbi Yochanan would have encountered a serious difficulty. Rebbi Yochanan elsewhere expresses his opinion that "Ein Bereirah." According to that opinion, whenever brothers receive land as an inheritance from their father and divide it between them, it is considered as though they purchased from each other the respective properties that each one took as his portion ("Achin she'Chalku, Lekuchos Hen"). Since they purchased the portions, they must return them to each other when the Yovel year arrives (and re-divide the property among themselves). This is Rebbi Yochanan's view.

However, the Gemara earlier teaches that any property that is returned to its original owner upon the arrival of the Yovel year is considered a Kinyan Peros (since the seller -- knowing that he would get his field back at Yovel -- did not intend to sell the Guf of the field but only the rights to the Peros). Accordingly, if Rebbi Yochanan would have ruled that a Kinyan Peros is not like a Kinyan ha'Guf, according to Rebbi Yochanan one would never be able to read the Parshah of Bikurim upon bringing fruit from any field that was ever divided between two brothers as an inheritance, at any point in history (because the ownership of that field, after it was inherited, remains a Kinyan Peros forever)! Therefore, it was necessary for Rebbi Yochanan to maintain that a Kinyan Peros is like a Kinyan ha'Guf in order to explain how the Parshah of Bikurim is read when fruit is brought as Bikurim.

TOSFOS (DH Iy) asks that in practice, Rav Yosef's point should pose a serious Halachic dilemma. The Halachah follows the view of Reish Lakish that a Kinyan Peros is not like a Kinyan ha'Guf. However, with regard to brothers who divide an inheritance, the Halachah is "Ein Bereirah" -- when brothers divide an inheritance they are considered as though they purchased their portions from each other. Why, then, is the Parshah of Bikurim read when Bikurim fruits are brought from any field that was ever divided among brothers? (See Tosfos there who suggests two answers.)

The RAMBAM (Hilchos Bikurim 4:6) also rules like Reish Lakish, that a Kinyan Peros is not like a Kinyan ha'Guf. He also rules (Hilchos Shemitah v'Yovel 11:20) that brothers are like "Lekuchos" and they return their fields to each other in Yovel. Therefore, Tosfos' question applies to the Rambam's ruling as well. However, neither of Tosfos' answers is applicable according to the Rambam. How does the Rambam answer the question of Tosfos? (See LECHEM MISHNEH, end of Hilchos Zechiyah u'Matanah; BIRKAS HA'ZEVACH, Erchin 26b; PNEI YEHOSHUA, and others.)

ANSWERS:

(a) The SHA'AGAS ARYEH (#90), PNEI YEHOSHUA, and TIFERES YAKOV suggest that the Rambam follows his own view with regard to the definition of "Yovel Rishon" mentioned earlier in the Gemara. The Gemara, in the name of Rav Chisda, says that during "Yovel Rishon," everyone (even Reish Lakish) agrees that a Kinyan Peros is like a Kinyan ha'Guf; since the seller is not yet convinced that the field will be returned during Yovel, he has intent to sell the Guf as well as the Peros. Most Rishonim explain that "Yovel Rishon" refers to the first Yovel after the Jewish people started counting the years for Shemitos and Yovlos, during the times of Yehoshua.

The Rambam (Hilchos Bikurim 4:7), however, explains "Yovel Rishon" differently. He explains that "Yovel Rishon" refers to the first Yovel which the seller experiences in his lifetime.

According to the Rambam, why does Rav Yosef say that if property was ever divided among brothers as an inheritance, one who brings Bikurim from that property does not read Parshas Bikurim? Why should he not read Parshas Bikurim because he (the heir) has not yet experienced his first Yovel? Since each brother is not certain that his property in the hands of the other brother will come back to him at Yovel, they both have genuine intent that the other brother should have a Kinyan ha'Guf on his portion. Accordingly, each one should be required to read Parshas Bikurim.

It must be that Rav Yosef disagrees with Rav Chisda who differentiates between the first and second Yovel. Rav Yosef maintains that even during the first Yovel, each brother has a Kinyan ha'Guf. Since the Rambam rules like Rav Chisda that the first Yovel is different, he also rules that when brothers bring Bikurim from an inherited field (before they experience the first Yovel), they indeed read Parshas Bikurim because they each have a Kinyan ha'Guf on the property.

However, the CHASAM SOFER points out that even according to Rav Chisda, heirs might differ from sellers. An heir certainly relies on the fact that the property will be returned at Yovel, since there is no reason for the other brothers to withhold giving back the land since they all stand to gain and lose equally. (Only someone who sells property before he experiences his first Yovel thinks that the buyer will not return it because the buyer will thereby lose his money.)

(b) The LECHEM MISHNEH answers that the Rambam is bothered by the question of Tosfos, who asks that Rava's rulings seem to contradict each other. Rava here supports the view of Reish Lakish (that a Kinyan Peros is not like a Kinyan ha'Guf), but in Kidushin (42b) Rava rules that brothers who inherit land are considered "Lekuchos," buyers from each other. Rava, therefore, must argue with Rav Yosef who says that these two opinions are mutually exclusive.

What is Rava's logic for explaining why Parshas Bikurim is read? The Lechem Mishneh explains that it is assumed that brothers probably want to give each other a Kinyan ha'Guf and not just a Kinyan Peros, even though they will have to return the portions to each other in Yovel, in order for them to be able to read Parshas Bikurim when they bring the first fruits. The Rambam rules like Rava and not like Rav Yosef, and that is why he does not consider it a contradiction to rule both like Reish Lakish (that a Kinyan Peros is not like a Kinyan ha'Guf) and that brothers who inherit land are considered "Lekuchos," buyers.

(c) The PNEI YEHOSHUA (in his second answer) also suggests that the Rambam does not rule like Rav Yosef (but rather like Rava), but he gives another reason to explain why the two rulings are not contradictory. The Rambam (Hilchos Shemitah v'Yovel 11:20) rules that although the brothers return their portions to each other in Yovel, they re-divide the property in the exact same manner as it was originally divided (see also RASHI, 25a, DH Lekuchos Hen). This is logical, because otherwise the land would have to be re-divided among all of the heirs of the original generation of Yehoshua (the people who entered Eretz Yisrael from the Midbar) every Yovel year.

The reason why a field sold during a time when Yovel is observed is assumed to be a Kinyan Peros and not a Kinyan ha'Guf is that the owner does not intend to sell the Guf, since he does not want the buyer to have the right to damage the Guf (such as by digging ditches) which will be returned to the seller at Yovel. (If he were to sell the Guf, the buyer would be allowed to do whatever he wants to the Guf, including digging ditches, which the seller does not want.)

In contrast, when brothers return their portions to each other in Yovel, they take back the same portion which they had before Yovel. Therefore, they have no reason to limit each other to receiving only a Kinyan Peros and not a Kinyan ha'Guf, since they are not going to receive the field which the other brother took in any case. Therefore, they may read Parshas Bikurim when they bring Bikurim.

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