Friday, January 29, 2010

Kinyan Peiros for Bikkurim

By: Rabbi Avi Lebowitz

The Gemora cites the dispute between Rabbi Yochanan and Rish Lakish whether a kinyan peiros (acquiring the produce) qualifies as a kinyan ha’guf (an acquisition of the land). The Gemora has two applications of this argument. One is that if a father gifts the body of property to his son, retaining for himself the fruits for the duration of his lifetime, and the son would sell what he owns, if the father would outlive the son, then the question becomes whether the father’s retention of peiros would entitle him to take the property back from the buyer. The second application is in the context of bikkurim, whether one is able to read the parshah when they only have a kinyan peiros.

The Rashbam explains that according to Rish Lakish that kinyan peiros wouldn’t entitle someone to read the parshah is because they couldn’t say “the land which was given to me,” but they would be obligated to bring the fruits even biblically, because they are included in “that which is brought from the land.”

Tosfos rejects the Rashbam’s explanation because if they aren’t included in the verse of “the land which was given to me,” they shouldn’t be included in “that which is brought from the land” either? Tosfos concludes that the entire obligation to bring the fruits according to this opinion is only rabbinic.

The Ketzos HaChoshen (257:3) answers a major question and with it explains the Rashbam.

The Gemora in Yevamos says that unless we accept Rabbi Yochanan that kinyan peiros is like kinyan ha’guf, no one would ever be able to read the parshah of bikkurim unless they come from a chain of only sons (because if there are multiple sons, we view their inheritance as purchasing from one another so they only own kinyan peiros). How then can we hold like Rish Lakish?

Tosfos in Yevamos raises this question and says that we only hold like Rish Lakish in the context of the father gifting property to the son because a father will be mochel to the son and leave over a very weak share of kinyan peiros, but in general we follow Rabbi Yochanan that a standard kinyan peiros would be like a kinyan ha’guf.

The Ketzos offers another approach. Kinyan peiros can sometimes refer to a weak ownership, but sometimes can refer to a standard ownership which expires with time. A kinyan l’zman (for a limited time) is a very powerful kinyan peiros because the “owner” can do whatever he wants, even ruin the field; just that his ownership will expire, whereas a true kinyan peiros cannot ruin the field. One who owns a field until Yovel is considered to have a “kinyan peiros,” but it is a very strong kinyan peiros which would enable him to even read the bikkurim because it is like a kinyan ha’guf until it expires. But, when one only has a kinyan peiros, they cannot read the parshah of bikkurim.

The Rosh in a teshuvah quotes Rabbeinu Avigdor who says that one, who has a lulav for kinyan peiros, namely only to fulfill the mitzvah, cannot fulfill the mitzvah since it doesn’t qualify as “lachem” (being his). But if they have a gift which was given on the condition that it should be returned, it is like a kinyan ha’guf that expires and they can fulfill their obligation with it. Therefore, one who has a kinyan ha’guf on a field that will expire, such as a purchased field that will return with Yovel, qualifies as “that which is brought from the land” because for the time being, when he brings the bikkurim, he “owns” the land (similar to the requirement of “lechem,” which is fulfilled by a kinyan ha’guf that will expire). But, the requirement for reading the parshah is “the land which was given to me,” which means it is his forever, which is not the case, so he cannot read the parshah.

It seems based on the Ketzos that the distinction between the two verses is that one can consider a land which he is now an owner but his ownership will expire, to be “your land” since it is not his. But, from the perspective of the giver, it is not a “land that Hashem gave me,” because it was only given temporarily.