Wednesday, October 15, 2008

May One Buy An Lulav/Esrog From A Minor?

According to Reb Gutman Locks at Mystical Paths, if you do so, you did not own the lulav and esrog, and since there is a requirement of lachem, this is an impediment to fulfilling the mitzvah, at least the first day. And if you buy from a katan, well, he was able to acquire it in the first place and now is in possession of it, but he is not able to be makneh it.

Yet I bought my lulav/etrog set from a kid, and I did not bother to ask if he was 13 years old yet, instead relying on the common Jewish practice. Why did I not refrain from purchasing it from him, or at least ask him if he had attained majority?

I would say, first off, that the question never gets off the ground. As I understand it, these children do not buy the lulavim and etrogim and then go and sell it. Rather, they work for a gadol as salesmen. If I go into Macy's and buy an item, I am not buying it from the cashier. Rather, I am purchasing it from the store. The cashier is there to tally up the price, collect my money and perhaps remove the security tag, and make sure that people are not just walking off with merchandise.

Similarly, I am fairly certain that these children are simply cashiers. When you buy a lulav set, you are taking it into your possession from the gadol's possession. And his mind is made up that when you give the salesperson the predefined price (or however low he allows them to go), that you should be koneh the item from him when you do hagbahah. The children are just there to ensure against theft of lulav sets or the money, and to encourage people to purchase the sets.

So there is no question of kinyan from a katan in the first place.

But let us say there is. If so, they are peutot, and it seems that Rabbinically, children in the class of peutot can buy, sell, and give gifts. And if they can do so Rabbinically, then under the principle of hefker bet din hefker, the item is legally yours even on a Biblical level. (There is what to argue about this, and people do argue, but there is certainly upon what to rely.)

Where does this discussion occur? In the gemara in Gittin, and it is brought lehalacha in the Rif. From my Rif Yomi blog:
הפעוטות מקחן מקח כו'.
ועד כמה מחוי רב יהודה לרב יצחק בריה כבר שית כבר שבע
רב כהנא אמר כבר שבע כבר תמני
במתניתא תנא כבר תשע כבר עשר
ול"פ כל חד וחד לפום חורפיה
And until when {is the youngest age}?
Rav Yehuda pointed out to Rav Yitzchak his son: About six or seven.
Rav Kahana said: About seven or eight.
In a brayta it was taught: About nine or ten.
And they do not argue. Each of them in accordance with his intelligence.

וטעמא מאי א"ר אבא בר יעקב א"ר יוחנן משום כדי חייו
ואמרי' עלה בפ' מציאת האשה
אמר רפרם ל"ש אלא שאין שם אפוטרופוס אבל יש שם אפוטרופוס אין מקחן מקח ואין ממכרן ממכר
And what is the reason {that it is effective}?
R' Abba bar Yaakov cited Rabbi Yochanan: for the provision of his livelihood.
And we say upon it {this Mishna} in perek Metziat HaIsha {Ketubot 70a}:
Rafram said: They only learned this where there is no guardian, but if there is a guardian, their purchase is no purchase and their sale is no sale.
We might think this only applies to an orphan, from the reference to the apitrupis in Ketubot, and from the fact that it is a provision for his livelihood (though lehalacha it seems that this was the reason for the takana but extends even past where it is for his livelihood), but this is not explicit in the gemara, or in Tur, or Beis Yosef, or Shulchan Aruch, in the relevant siman in Choshen Mishpat. Aruch Hashulchan does start out discussing it in terms of a yatom, but later also gives as a reason a child whose father is in a far away place where he did not appoint an apotropus, a guardian.

Yet, in Orach Chaim, in Siman TarNach, Aruch Hashulchan discusses it in the context of matana al menas lehachzir and notes a problem in regard to a katan. He could acquire it, but then could not give it away. But then, the tenai should not work and so it was never his, so it is no problem? True, the condition cannot take effect, but that would have the effect of nullifying the condition but not the gift. In which case the next person, or the first person, could not take it back, and so there is an issue that it is not lachem.

But then Aruch Hashulchan notes that this should only apply to children who have not reached the age of peutot. Which means from 6 and up, if they know enough to conduct business, they are empowered to do so. And he does not restrict to orphans. Thus, even he would say that this is across the board. However, he notes that Tur just says katan and does not make a distinction, such that for some reason Tur might not take peutos out of this class. {Why, who knows? I could come up with some plausible suggestions.} But then a note that it is possible to argue with this diyuk. See inside.

Therefore, even if one is actually acquiring from the katan -- which I doubt -- it should not be a problem according to many opinions. Because they are clearly of age to conduct business. They are actively engaged in it! (And from 10 and up, if we do not hold like Rambam, so long as they are not shoteh they are certainly fine. Earlier than that, it is up to their individual business acumen.) And then, since they can acquire and sell mideRabbanan, under hefker bet din hefker it is in my possession. And so I can fulfill the mitzvah even on a Biblical level.

Please note: Do not pasken or act in accordance with a pesak on a blog. This is true for both this blog and Mystical Paths, or almost any other blog on the internet. It is an interesting question and you should consult your local Orthodox rabbi before taking any action, perhaps first printing out whatever halachic discussions you find online. But in the end, it should be evaluated by someone well versed in the issues and in the method of pesak, and someone willing to take responsibility to issue a definitive ruling to you.


Anonymous said...

I am just going to Share some stories and Torah I heard over Succos:
1) The Griz was Around Chassidim and one of them stole his Mirror from his Tefillin because it says in The Teshuvos Divrie Chaim who ever has one is a Boor(: uneducated person) The GRIZ told the Chassid he wanted his Mirror and he will prove that even the Divrie Chaim would agree with him. He quoted this story: The Divrie Chaim was sitting in the Sukkah and it started to rain and he continued eating in the Sukkah, it came time to sleep and he was going to do that in the Sukkah to so finally one of the Chassidim asks him How is it you are going to sleeping the Sukkah does it not say a person who sleeps in the Sukkah when it rains is a HEDYIT(:a simpleton) so the Divrie Chaim answered let me be a HEDYIT as long as I am sitting in the Shade of the Shechina says the same for me let me be a Boor as long as I know I have Placed my tefillin correctly.
2) The Netziv being the Ohav Eretz Yisroel he was on a Shemittah Year had an Esrog from Eretz Yisroel which he made the Bracha on, he told Reb Chaim Brisker about Reb Chaim said He was unsure if it was the Proper thing to make a Bracha on such an Esrog in A Shemittah Year (like this One) [This was Pre OTZER BEIS DIN I believe] It is said that the Netziv came to his door at 4 AM and told him he could Prove he was correct in making the Bracha on the Shemittah Esrog so the Brisker Rov told wait I have yet to Make Birchas Hatorah Yet to which the Netziv said how Unfortunate it is that you will be the Leader of the Next generation and at 4 AM you have yet to make A Birchas Hatorah
(If anyone knows today what the Brisker's use for Esrogim I would highly appreciate it)
3)And now a Simcha s torah story its funny and sad at the same time but there is something to learn from Sipurie Tzaddikim so I will give it over The Noda B'Yehuda once had a Chassid come to his shul and By CHOSSON TORAH so that the Noda B'Yehuda not get it as he was outspoken against them. After the Noda B'Yehuda said to the crowd don’t worry it is the Minhag by the Chassidim that the Chosson does not know the Kallah (the first two stories are from Tallile Oros the last I heard from a rav in shul)

Anonymous said...

I believe that an easier way to solve the problem would be to say that a kinyan chatzer was made for you when you brought it home.

Jeff ( said...

Interesting to note on the 3rd story you quote "Minhag by the Chassidim that the Chosson does not know the Kallah". So your ignorant Rov must've fabricated this chasidishe maysele since it is well known to all that prior to world war 1 (when people respected their tradition)this was the prominent minhag of all of klal yisroel. just brushing up your history


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