CAN CHALIPIN ACQUIRE TOVAS HANA'AH? [Tovas Hana'ah: Chalipin]
(Mishnah): One can be Makdish Kodshei Mizbe'ach for Hekdesh Iluy (his Tovas Hana'ah, i.e. the right to give it to the Kohen of his choice) or be Macharim them.
(Ula): "Kol Cherem" teaches that Chermei Kohanim take effect on all Kodshim.
Contradiction (Ula): If one was Matfis an Olah for Bedek ha'Bayis, Bedek ha'Bayis does not receive anything, just it is not offered until the Gizbar is there.
Answer: Mid'Rabanan, Chermei Kohanim take effect on all Kodshim. (The verse is an Asmachta.)
Erchin 28b (Mishnah): Chachamim learn from "Kol Cherem Kodesh Kodashim Hu la'Shem" that Cherem takes effect on Kodshei Kodoshim and Kodshim Kalim.
29a (Mishnah - R. Yishmael): "Takdish" teaches that you may be Makdish a Bechor Hekdesh Iluy.
Bava Metzi'a 11a (Ula and Rabah bar bar Chanah): A field acquires (what is in it) only when the owner is standing by it.
Question (R. Aba - Mishnah): A case occurred in which R. Gamliel was on a boat with R. Yehoshua and R. Akiva. He said 'the Ma'aser (Rishon) that I will separate is given to R. Yehoshua. The Ma'aser (Oni) that I will separate is given to R. Akiva, who will acquire on behalf of the poor. The area they rest on is rented to them.'
R. Yehoshua and R. Akiva were not by the field, yet they acquired!
Ula: You ask like one who has never learned.
Answer #1 (a Chacham): The land did not acquire for them. Rather, they acquired them Agav (along with) the land!
R. Zeira accepted this answer, but R. Aba (and Rava) did not.
Objection (Rava) Question: Why didn't they acquire them through Chalipin?
Answer #1 (Rava): Since R. Gamliel did not own the tithes themselves, only the Tovas Hana'ah, Chalipin does not work. Similarly, one cannot acquire Agav when the giver owns only Tovas Hana'ah.
Defense (and Answer #2 to Rava's Question): Chalipin cannot be used for gifts to a Kohen because the Torah says to give them. Chalipin is a method of commerce;
Agav is a method of giving, so it can be used.
Answer #2 (to R. Aba's question - Rav Papa): R. Gamliel's case is different, for it was Da'as Acheres Makneh (someone with intelligence transferred ownership). Therefore the land acquires even if the owner is not there.
(Mishnah): If Reuven saw people chasing an Aveidah in his field... (his field acquires).
(R. Yirmeyah): This is only if one could chase and catch it (e.g. a lame deer).
(R. Aba bar Kahana): Regarding a gift, even if one cannot catch it, the field acquires, because there is Da'as Acheres Makneh.
Kidushin 27a - Question: Can one give Metaltelim Agav a sale of land?
Answer (Mishnah): The Ma'aser... is given to R. Yehoshua. The Ma'aser... is given to R. Akiva. The area they rest on is rented to them.' (Rental is like a sale.)
58a (Ula): Tovas Hana'ah is not considered Mamon (one's property).
Question (Rava - Mishnah): If a Yisrael was Mekadesh with Terumah, she is Mekudeshes.
Answer (Ula): The case is, he inherited Tevel (untithed Peros) from his mother's father (a Kohen);
Ula considers Tevel to contain Terumah. It is as if it were separated. (The grandfather owned the Terumah. The Yisrael inherited the Terumah, and not just the Tovas Hana'ah.
Rav Huna brought the Mishnah to prove that Tovas Hana'ah is Mamon. R. Chiya bar Avi rejected the proof like Ula said.
Rav Huna: You hold like Rav Asi of Hutzal.
Nedarim 84b (Mishnah): If one said 'Kohanim may not benefit from me', they may take Terumah against his will...
Inference: Tovas Hana'ah is not Mamon.
Question (Seifa): If one said 'these Kohanim may not benefit from me', others take the gifts.
This shows that Tovas Hana'ah is Mamon!
Answer #1 (R. Hoshaya): The Reisha is R. Yosi b'Rebbi Yehudah, and the Seifa is Rebbi. They argue about whether Tovas Hana'ah is Mamon.
Answer #2 (Rava): The Tana holds that Tovas Hana'ah is Mamon. In the Reisha, Kohanim may take against his will because Terumah must be given to them, and he forfeited his Tovas Hana'ah.
Hagahos Maimoniyos (Hilchos Mechirah 5:7, citing Ba'al ha'Itur, also brought in Beis Yosef CM 195 DH Kasav ha'Itur): Rav Hai Gaon says that a Ga'on said that a document can be acquired through Chalipin. He disagreed. R. Baruch said that since it is not Gufo Mamon (has no intrinsic value), it is not acquired through Chalipin, rather, Agav (along with) land. Presumably, Tovas Hana'ah cannot be acquired through Chalipin or Agav. Do not bring a proof from Bava Metzi'a, which answered that R. Gamliel was Makneh Metaltelim Agav land. R. Aba and Rav Papa rejected this answer, because Tovas Hana'ah is not Mamon, therefore it is not acquired through Chalipin or Agav. The Gemara rejected the rejection, for the Torah says that Matanos Kehunah must be given. This is according to the opinion that accepted the answer, but the Sugya is like Rav Papa, who says that Da'as Acheres Makneh is different. We do not rule like the answer that he acquired Metaltelim Agav land.
Shitah Mekubetzes (11a DH Tovas): Even according to the opinion that Tovas Hana'ah is Mamon, it is not important enough to be acquired through Chalipin or Agav.
Rema (CM 203:1): Tovas Hana'ah is not Mamon, so it is not acquired through Chalipin. See Siman 245.
Shach (1): This is like Hagahos Maimoniyos and Ba'al ha'Itur (Ma'amar Sheni Kinyan). This is astounding. In Kidushin, we hold like the answer (that he was Makneh Agav) regarding a sale of land and a gift of Metaltelim! Rather, Rav Papa agrees that Tovas Hana'ah can be acquired Agav land. He can hold that the even if R. Gamliel was Makneh Metaltelim Agav land, in any case it is not difficult, for Da'as Acheres Makneh is different. Further, it seems that even Tovas Hana'ah is not Mamon, like I wrote in Siman 350, but regarding Chalipin and Agav, they are Mamon. Only regarding Matanos Kehunah, Chalipin does not work, for it says "Nesinah", and Chalipin is a way of business. This is clear to me, unlike Ba'al ha'Itur, Hagahos Maimoniyos and the Rema.
Ba'al ha'Itur (Sechirus 31, cited in Shach): Rental does not acquire without Agav. If it acquired by itself, like a Chatzer, how do we understand the question about a gift of Metaltelim Agav a sale of land? The Gemara learned from the case in which R. Gamliel was Makneh Ma'aser Rishon to R. Yehoshua and rented the land to him. If rental acquired by itself, we cannot learn from here about Agav! Rather, it acquires only with Agav.
Shach (1): He contradicts himself, and explicitly says that the episode with R. Gamliel was Metaltelim Agav land. Here he holds that Agav helps for Tovas Hana'ah; this is correct. However, what he wrote here is difficult, for it seems that all agree that renting the place (of the Metaltelim) works without Agav (198:5). The Gemara brought a proof from R. Gamliel because it holds unlike Rav Papa, who says that Da'as Acheres Makneh is different. Or, it holds like Rav Papa's law, but explains that R. Gamliel was Makneh Metaltelim Agav land. Ba'al ha'Itur wrote that renting the place requires Agav. Bava Basra 84b refutes this. Renting the place helps, even without Agav.
Ketzos ha'Choshen (1): This is astounding. Tovas Hana'ah cannot even be inherited (Maharik 161, Maharam Padova 65, Rema 276:6). The Shach himself (276:4) says so. All the more so one cannot acquire it through Chalipin, for it is easier to bequeath than to be Makneh!
Nesivos ha'Mishpat (Bi'urim 2): The Shach asked from Kidushin 27a. I explained (200:1) that his proof is from the Ma'aser Oni (which R. Akiva would not keep for himself. He merely acquired the Tovas Hana'ah to give it to Aniyim of his choice.) R. Gamliel was Makneh the produce when it was still Tevel, like the Shitah Mekubetzes says (11a DH v'Zeh Lashon Tosfos Shantz). Ma'aser Oni is proper Mamon, since one may benefit from it in a way that consumes it, therefore one may be Makneh it through Agav. Further, even though we hold that like the answer that Metaltelim are acquired Agav land, since we hold that Tovas Hana'ah is not Mamon, it is not acquired through Chalipin. Coins and documents are Mamon regarding Kidushin, but they are not acquired through Chalipin, for they are not Gufo Mamon (Nimukei Yosef 27a). All the more so Tovas Hana'ah, which is not Mamon for any law, is not acquired through Chalipin. The Gemara distinguished between Chalipin and Agav only according to the opinion that Tovas Hana'ah is Mamon.
Maharit (2 YD 5): The Sugya in Kidushin 58a holds like Ula, that Tovas Hana'ah is not Mamon. However, in Nedarim, Rava concludes that it is Mamon, therefore others take. R. Chananel says that we rely on Rava. However, I say that even though it is considered Mamon, a lien and Kinyan do not take effect on it. Rava himself said that R. Gamliel was Makneh Metaltelim Agav land, because Chalipin would not help. Tovas Hana'ah is Mamon regarding vows and Kidushin, which depend on Hana'ah, but not for Chalipin or Agav, for it is intangible. The Gemara rejected Rava's reasoning that Agav is like Chalipin, but his primary reason, that Tovas Hana'ah is not Mamon for Kinyanim, was not rejected. This is good for the Rosh, who holds that Rav Papa's Ukimta (the way he established the Mishnah) is primary, for Da'as Acheres Makneh is different. However, the Rif did not bring Rav Papa. This connotes that he holds that the first Ukimta is primary, that it was Metaltelim Agav land. This connotes Tovas Hana'ah is Mamon even for Kinyan Agav. In Bava Kama (37a), a man said that he gives what is owed to him to the poor, and Rav Yosef acquired on behalf of the poor through Ma'amad Sheloshtam, even though we cannot say that he is like the father of Aniyim (the way R. Gamliel and his Beis Din are the father of orphans). Rav Yosef had only Tovas Hana'ah, just like R. Akiva! I answer that he did not acquire due to Tovas Hana'ah, rather, like a Shali'ach. Ma'amad Sheloshtam works through a Shali'ach (to receive - PF), like the Rosh says in Gitin (1:18). R. Gamliel and his Beis Din are the father of orphans, who is like an overseer. An overseer can tithe the orphans' Peros, even though this requires Shelichus. We find that one can be Macharim Kodshei Kodoshim and Kodshim Kalim, i.e. how much one would pay to be able to give a Bechor to his grandson or nephew (a Kohen). This shows that Hekdesh takes effect on Tovas Hana'ah. We learn this from "Kol Cherem Hu la'Shem" or "Takdish". If not, for the verse, we would say that Hekdesh does not take effect, even though he has Tovas Hana'ah! We do not learn from Hekdesh to Chulin.
Nachal Yitzchak: What was his question from Hekdesh? Ula concluded that it is only mid'Rabanan. The verse is a mere Asmachta! We must say that Ula said so because he holds that Tovas Hana'ah is not Mamon.
Gra: The Rema explained like this also in 276:6 and 201:1. I explained (198:5, 200:1) that we hold like the first answer, and unlike Rava. We must say that R. Gamliel and the Chachamim (with him) hold like the opinion that Tovas Hana'ah is Mamon, and we do not hold like them. See what I wrote above 87:112. This requires investigation.
Shulchan Aruch (87:35): One need not swear Heses due to a claim of Tovas Hana'ah.
Gra (112): We hold that Tovas Hana'ah is not Mamon, like Ula and Rav Asi, against Rav Huna. Rava said that all agree that it is Mamon to establish the Mishnah like one Tana, but in Bava Metzi'a he himself holds that it is not Mamon.