Ripening Grapes for the Spies

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When the spies were sent out to Eretz Yisroel, it is written [Bamidbar 13, 20]: It was the season when the first grapes begin to ripen.

The commentators ask: What is the purpose of this information? What is the Torah teaching us?

In the sefer Misbar Kerai, he answers based upon the Rambam (Mechirah 1, 16), who rules that the eating of produce constitutes an acquisition of a field. Accordingly, Moshe instructed the spies to eat from the fruits of the land, for this way, they will be acquiring Eretz Yisroel for the Jewish people.

And, he continues, even according to the Raavad, who disagrees with the Rambam and holds that the eating of produce does not constitute an acquisition of a field, for one must perform an act that is beneficial to the field in order to acquire it, such as locking a door, fencing it or making an opening, even a small amount, nevertheless, here, the eating of the produce would constitute an acquisition. For the Gemora in Bava Basra (119a) states that Eretz Yisroel was regarded as if it was in the possession of the Jewish people (even before the conquest). It therefore follows that a formal act of acquisition was not necessary; they just needed to demonstrate ownership. The Gemora in Pesachim (6b) states: If there are in a man’s field late figs (which will never ripen), and he is guarding his field on account of the grapes (which have not ripened yet); and similarly, if there are late grapes, and he is guarding his field on account of his cucumbers, the halachah is as follows: If the owner is not particular about them, they are not forbidden as theft and are not subject to the halachos of tithing, for ownerless produce is exempt from tithing. Evidently, produce at the end of their season are considered ownerless. If someone would take this produce at that time, he would not be demonstrating ownership at all. This is why the Torah stressed that the spies went at the time when the grapes were beginning to ripen, for then, the eating of the grapes would be demonstrating ownership.

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Whose Money is it?

By: Reb Yechezkel Khayyat

The Gemora (Bava Kamma 76a) discusses the opinion of Rabbi Shimon, that something that can cause someone monetary loss is tantamount to being that person’s money. The Ra’avad rules like Rabbi Shimon, and therefore considers hekdesh for which the makdish is responsible (harei alai) to be the property of the makdish. Therefore, according to the Ra’avad, if someone steals such hekdesh, he must pay full damages (including kefel and dv’h) to the makdish.

The Rambam (Geneivah 2:1), however, rules like the Chachamim, as this is the anonymous Mishna’s position. Therefore, in all cases of hekdesh articles that are stolen, the thief is not liable to pay any damages to the makdish. The Rambam first states that one who steals from hekdesh does not pay kefel, and quotes the verse yeshalem shnaim l’reyeyhu’ – he should pay double to his peer, excluding hekdesh, which is not his peer. Then, the Rambam applies this equally to all hekdesh – irrespective of the makdish’s responsibility – and quotes the verse of v’gunav mibeis ha’ish – and it was stolen from the home of the man, excluding hekdesh, which is not a man.

Tosfos (63a rayayhu) ask why the Gemora on 62b uses reyeyhu to exclude hekdesh, while our Gemora uses the verse of ha’ish to exclude hekdesh. While Tosfos explains that both are actually being learned from reyeyhu, the Lechem Mishnah states that the Rambam was implicitly addressing this question by quoting the different verses. The verse of reyeyhu is the fundamental source for excluding hekdesh from theft payments. However, the extra verse of ha’ish is the source for our ruling that this applies to all hekdesh – whether the makdish is responsible for it or not.

The Rishonim and Achronim discuss the exact formulation and rationale behind Rabbi Shimon’s opinion. Some of the facets discussed are:

1. At what point is it considered money? Does this begin while it’s in the responsible person’s property, simply because it can cause him to lose money, or is it only once it’s been removed from his property?

2. Is the obligation of one who harms such an item simply because he has caused a monetary loss, or because the holder’s responsibility created a status of money in the abstract? Another formulation of this question is – when one pays for damage to such an article, is it because of the damage done (which now includes monetary loss), or because the item is considered the property of the holder?

3. The Gemora in Pesachim (5b-6a) discusses Rabbi Shimon’s opinion in the context of chametz on Pesach. The rule established by the braisa quoted there is that the chametz of a non Jew in a Jew’s possession is considered the Jew’s only if the Jew is responsible for it. The Gemora debates whether this is a function of Rabbi Shimon’s opinion, or an exception to the ruling of the Chachamim. The exact application of this rule in the case of Chametz may depend on this debate. If chametz is a function of Rabbi Shimon’s opinion, it may be subject to the possible limitations and definitions of Rabbi Shimon’s general position on such items. If, however, it is an exception to the ruling of the Chachamim, the Torah is telling us a more sweeping statement about how we determine ownership for chametz on Pesach. One ramification of this may be how responsible for the Chametz a Jew must have in order to be obligated to remove it.

See the Ketzos Hachoshen 386:7 and Afikei Yam 2:10 for more detailed discussion of these topics.

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As if it is in his Possession

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Rabbi Elozar said in the name of Rabbi Yishmael (Bava Kamma 29b) : There are two things which are not legally in one’s possession and the Torah views them as if they are in his possession. One thing is a pit that one digs in a public domain, and even though he does not own the public domain, he is responsible for any liability that occurs regarding the pit. Similarly, one cannot have benefit from chametz after the sixth hour on the fourteenth of Nissan, and the chametz is rendered as ownerless, but one who retains chametz after the sixth hour is considered to have violated the transgression of owning chametz when it is prohibited to own chametz.

Rashi seems to say that the chametz is regarded as his only in the sense that he is held accountable for violating the two commandments of “chametz being seen in his possession” and “leaven being found in his house.” However, he does not actually own the chametz.

Similarly, the Meiri writes with respect to the pit. If there is water in the pit, everyone is allowed to draw water from there. The digger of the pit cannot prevent them from drinking the water by saying that he is the owner, for the Torah considers him the owner only with respect to liability for the damages.

The Chasam Sofer writes that if one would have chametz on Pesach and on Pesach, he would sell it to a gentile, he still would be liable, for the Torah considers it his. And so too, the halachah would be by a pit – if a gentile would acquire the pit, it would still be regarded as the digger’s pit with respect to liability for its damages.

The Noda Beyehudah disagrees and maintains that if without the prohibition of chametz, it would not be in the Jew’s possession, we do not say that the Torah treats it as if it is in his possession.

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