My son lives in Givat Ze'ev. Following the Feinstein shitta regarding a Shemitta esrog, he had to acquire his at the pardes, not from a merchant. After a great deal of effort, he did locate a cooperating pardes, and he found a beautiful esrog.
Another shitta of the Feinsteins is that the Shaas HaBiyur of esrogim is Rosh HaShannah. So he put his esrog into a bag and put it down in the street in front of his house, and in the presence of three adults he said he was mafkir it, that anyone that wanted could take it. So he was mekayeim the requirement of biyur.
His nine year old daughter was watching. She said, Tatti, what do you mean? My son explained what hefker means. Miriam asked, does that really mean that anyone can take it? Yes, my son said. So dear Miriam grabbed it and said "Now it's mine."
Short of the bag being run over by a truck, this is the worst thing that could have happened. Sukka 46b-
א"ר זירא לא ליקני איניש הושענא לינוקא ביומא טבא קמא מ"ט דינוקא מקנא קני אקנויי לא מקני ואשתכח דקא נפיק בלולב שאינו שלו
My father in law presented a bigger problem. The reason מציאת קטן לאביו is because מריצה אצל אביו. But in this case, Miriam took it davka not to give it to her father. She asked her father, what do you mean, he said, "anyone can take it," she said "Good! Now it's mine!" You can't have less of a מריצה אצל אביו than that. It is the opposite of מריצה אצל אביו.
My nephew, Rav Gilan Grant, argued that מריצה אצל אביו is only one tzad in the Gemara, and the alternative is משום איבה, which probably would apply here. In Shulchan Aruch, only the svara of משום איבה is brought down, so the מריצה אצל אביו problem is solved. Although one might argue that even איבה would not apply where the father was mafkir, it is likely that the svara of איבה creates a universal din, applicable even where there is no real issue of creating איבה.
Someone suggested that my son marry her off to a friend, so her property becomes the husband's, and, as the husband is an adult, he could give the esrog back to my son. We're hoping it won't come to that. Anyway, the husband's kinyan on his wife's property is most likely miderabanan, and nobody wants to rely on a kinyan derabanan for a mitzva deoraysa.
R D Eli was bothered by the whole hefker business, since an Esrog is less than מזון ג' סעודות. I answered that from Tosfos in Rosh HaShanna there's a mashma'us that an esrog is called more than מזון ג' סעודות, but the truth is that we were machmir to be mafkir because Reb Moshe in his Teshuva in OC 1:186 says to be mafkir. We figured he says so because the person that took the Esrogim in the first place took more than מזון ג' סעודות. But to tell the truth, he shouldn't have been mafkir. It was a mistake, and some of the local poskim added the issue of hefker ta'us to the mix.
UPDATE: Motza'ei Yom Kippur, we listened to the message Shlomo left us after Yom Kippur was over in Israel. Among other things, he let us know that the infamous esrog turned out to be passul- it is chaseir.
If we're going the derabbanan route, wouldn't the metzia of a k'tana ocheles al shulchan aviha also belong to the father? Still not an answer, though.
ReplyDeleteAbsolutely. But we're worried about the possibility that her kinyan is deoraysa, and her father's rights to her metzia are derabanan. True, most rishonim hold that the only kinyan deoraysa for a katan is where an adult gave it to them, but I think they're worried about the possibility that she owns the metzia midoraysa.
DeleteBut the main thing is to visualize how it happened- I don't know what Miriam was thinking, maybe that she could use the esrog as a bargaining chip, maybe she was just playing, but the result of her unpredictable impulse was, as a southern woman who took care of my child thirty eight years ago in Baltimore, once said to me, "Yassa, I knows Kosher, cause I once put a spoon into tha wrong pot, and there's a-weepin, and a-waliin, and nobody know what to do, and they call the Rabbi, and he don't know what to do....."
"Another shitta of the Feinsteins is that the Shaas HaBiyur of esrogim is Rosh HaShannah."
DeleteR. Eisenberg: Does that include esrogim picked after Rosh ha Shanah? When was this one picked?
I believe that we're machmir on both chanata and lekita on an esrog, and I don't see why picking it after RH would change the zman habiur. I'll try to get a hold of the family experts and check, bl"n.
DeleteWhy is the zman habiur for esrogim RH? There are no more esrogim on the trees after RH?
DeleteI understand why you would say so. But it is pretty clear from Rosh HaShanna 15a that Esrogim do have a zman biyur. Why? Three svaros.
DeleteReb Moshe in OC 1:186- According to the Rambam that the Esrog year is determined by lekitah, so of course, once the year is over all the Esrogim that are left on the trees will never be defined as Shvi'is year Esrogim, because they weren't picked during Shvi'is. Biyur happens when there are no SHVI'IS fruits on the trees.
Reb Shlomo Zalman in 132- Again, since you go by lekitah, those that aren't picked are meshumarim, and meshumarim don't count for being available to animals, because you're guarding them.
Chazon Ish in 11- (proof from bnos shu'ach) that it's not enough that the type is on the trees. It has to be similar in character. Old esrogim are different from the newer ones that begin growing. From my esrog growing experience, I know that's true. The older ones are sweet and pulpy, the newer ones more bitter than sweet.
I didn't know about that Igros Moshe, I need to check that out. Look at Derech Emuna on Shmita V'Yovel פרק ד ס"ק צ"א.
DeleteAlso, it's a funny thing - again I need to look up the Igros Moshe - but it seems he is being machmir for the Rambam, so zman ha'biur is RH. But then - according to Rambam, the biur is to burn it!
DeleteTrue. Reb Moshe deals with that in the teshuva.
DeleteI don't have a Derech Emunah, and I can't find it on the Otzar haChochma. By the way, another svara Rav SZ mentions is that the reality is that all the esrogim get picked before Rosh Hashanna, so there's nothing left out there. But I know that there are those that hold there is no biyur for Esrogim.
In Chashukei Chemed (Sukkah 30b), R' Zilbershtein discusses a case of a socheir esrogim who passes away shortly before sukkos, leaving all of his esrogim to a minor child. After some masa u'matan, he suggests that appointing an apotropos and having him make an additional kinyan d'oraissa will resolve all of the issues, ayein sham. IIRC, we do have precedent for a father appointing an apotropos even when he is alive. Of course, this may only work because such an appointment is clearly for the zechus of the katan, but perhaps if the apotropos were then to sell the esrog to the father for a profit...?
ReplyDeleteVery nice. I think apotropsus was one of the options, but nobody was convinced that it would work misoraysa, as you said, unless it was a zechus gamur. But you're right, for a little girl, there are plenty of things that are more valuable than an esrog.
DeleteI was just thinking about your response, and I realized how perfect your example is, because in that case, there is no question that the child's kinyan is deoraysa, and the sale by the apotropos has to be deoraysa too. I agree, though, that if they would exchange the esrog for a Barbie Doll, it would be a zechus gamur. Maybe not in Givat Zev, but in most places.
Delete