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Gitin, 48

GITIN 48 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for Torah and those who study it.


QUESTION: Rebbi Yochanan rules that a Kinyan Peros (a Kinyan on the output produced by an item, such as the fruit produced by a field) is like a Kinyan ha'Guf (a Kinyan on the field itself). Reish Lakish argues and says that a Kinyan Peros is *not* like a Kinyan ha'Guf. According to Reish Lakish, if a person has a Kinyan Peros (he buys the rights to the produce of a field), then when he brings Bikurim from that produce he may *not* read the Parshah of Bikurim, because -- since he does not have a Kinyan ha'Guf on the field itself -- he cannot say, "This is produce of the land which Hashem has given me," since he does not own the land. He only has a Kinyan Peros and it is not considered as though he owns the land.

Rav Yosef points out that if Rebbi Yochanan would have held that a Kinyan Peros is *not* like a Kinyan ha'Guf, Rebbi Yochanan would have encounted a severe difficulty. Rebbi Yochanan elsewhere expresses his opinion that "Ein Bereirah" and, consequently, whenever brothers receive land as an inheritance from their father and divide it between them, it is considered as though they purchased from each other the respective properties that each one took as his portion ("Achin she'Chalku, Lekuchos Hen"). Since they purchased the portions, they must return them to each other when the Yovel year arrives (and re-divide the property among themselves). This is Rebbi Yochanan's view.

However, we have also learned (earlier in the Gemara) that any property that is returned to its original owner upon the arrival of the Yovel year is considered to be a Kinyan Peros (since the seller -- knowing that he would get his field back at Yovel -- did not have in mind to sell the Guf of the field but only the rights to the Peros). Accordingly, if Rebbi Yochanan would have held that a Kinyan Peros is not like a Kinyan ha'Guf, then according to Rebbi Yochanan it would never be possible to read the Parshah of Bikurim when bringing fruit from any field that was ever divided between two brothers as an inheritance, at any point in history (because the ownership of that field, after it was inherited, remains a Kinyan Peros forever)! Therefore, it was necessary for Rebbi Yochanan to maintain that Kinyan Peros *is* k'Kinyan ha'Guf in order to explain how the Parshah of Bikurim is read when fruit is brought as Bikurim.

TOSFOS (DH Iy) asks that in practice, Rav Yosef's point should be a serious Halachic problem! We rule that Kinyan Peros is *not* like a Kinyan ha'Guf, like Reish Lakish. At the same time, though, we rule that when brothers divide an inheritance, it is considered as though they purchased their portions from each other, because we hold "Ein Bereirah." Why, then, is the Parshah of Bikurim read when Bikurim fruits are brought from any field that was ever divided among brothers? Tosfos suggests two answers (see there).

The RAMBAM (Hilchos Bikurim 4:6) also rules like Reish Lakish, that a Kinyan Peros is not like a Kinyan ha'Guf. In addition, he rules (Hilchos Shemitah v'Yovel 11:20) that brothers are like "Lekuchos" and they return their fields to each other in Yovel. Therefore, Tosfos' question applies to the Rambam's ruling as well. However, neither of Tosfos' answers is applicable according to the Rambam. How, then, will the Rambam answer the question of Tosfos? (LECHEM MISHNAH, end of Hilchos Zechiyah u'Matanah; BIRKAS HA'ZEVACH, Erchin 26b; PNEI YEHOSHUA, and others)


(a) The SHA'AGAS ARYEH (#90), PNEI YEHOSHUA and TIFERES YAKOV suggest that the Rambam is following his own view regarding the definition of "Yovel Rishon" mentioned earlier in the Gemara. The Gemara, in the name of Rav Chisda, says that during "Yovel Rishon," everyone (even Reish Lakish) agrees that a Kinyan Peros is like a Kinyan ha'Guf, since the seller is not yet convinced that the field will be returned during Yovel, and thus he has in mind to sell the Guf as well as the Peros. Most Rishonim explain that "Yovel Rishon" refers to the first Yovel after the Jewish people started counting the years for Shemitos and Yovlos, during the times of Yehoshua.

The Rambam (Hilchos Bikurim 4:7), however, explains "Yovel Rishon" differently. He explains that "Yovel Rishon" refers to the first Yovel which the seller experiences in his lifetime.

According to the Rambam, why does Rav Yosef say that if property was ever divided among brothers as an inheritance, we do not read Parshas Bikurim when bringing its fruits as Bikurim? Why should we not read Parshas Bikurim in a case where the owner (the heir) has not yet experienced his first Yovel? Since each brother is not certain that his property in the hands of the other brother will come back to him at Yovel, they all have bonafide intent the other brother to have a Kinyan ha'Guf on his portion!

It must be that Rav Yosef is arguing with Rav Chisda, who differentiates between the first and second Yovel. Rav Yosef maintains that even during the first Yovel, each brother has a Kinyan ha'Guf. Since the Rambam rules like Rav Chisda that the first Yovel is different, he therefore rules that when brothers bring Bikurim from an inherited field (before they experience the first Yovel), they indeed read Parshas Bikurim because they each have a Kinyan ha'Guf on the property.

However, the CHASAM SOFER points out that even according to Rav Chisda, heirs might be different than sellers. An heir certainly trusts in the fact that the property will be returned at Yovel, since there is no reason for the other brothers to withhold giving back the land, since they all stand to gain and lose equally. (Only when someone sells property, before experiencing his first Yovel he thinks that the buyer will not return it because the buyer will thereby be losing all his money).

(b) The LECHEM MISHNAH answers that the Rambam was bothered by the question of Tosfos, who asks that Rava's rulings seem to contradict each other. In our Sugya, Rava supports the view of Reish Lakish (that a Kinyan Peros is not like a Kinyan ha'Guf), while in Kidushin (42b) Rava rules that brothers who inherit land are considered "Lekuchos," buyers from each other! Rava, therefore, must argue with Rav Yosef who says that these two opinions are mutually exclusive.

What is Rava's logic, though, to explain why we read the Parshah of Bikurim? The Lechem Mishnah explains that we assume that brothers probably want to give each other a Kinyan ha'Guf and not just a Kinyan Peros, even though they will have to return the portions to each other in Yovel, in order for them to be able to read Parshas Bikurim when bringing the first fruits. The Rambam is ruling like Rava, and not like Rav Yosef, and that is why he does not consider it to be a contradiction to rule both like Reish Lakish (that a Kinyan Peros is not like a Kinyan ha'Guf) and that brothers who inherit land are considered like "Lekuchos," buyers.

(c) The PNEI YEHOSHUA (in his second answer) also suggests that the Rambam is not ruling like Rav Yosef (but rather like Rava), but he gives another reason to explain why the two rulings are not contradictory. The Rambam (Hilchos Shemitah v'Yovel 11:20) rules that although the brothers return their protions to each other in Yovel, they re-divide it in the *exact same manner* as it was originally divided (see also RASHI, Gitin 25a, DH Lekuchos Hen). This is indeed logical, because otherwise the land would have to be re-divided among all of the heirs of the original generation (that came into Eretz Yisrael from the Midbar) every year of Yovel.

The reason why a field sold during a time when Yovel is practiced is assumed to be a Kinyan Peros and not a Kinyan ha'Guf is because the owner does not *intend* to sell the Guf, since he does not want the buyer to have the right to damage the Guf (such as by digging ditches) which will be returned to the seller at Yovel. (If he were to sell the Guf, then the buyer would be allowed to do whatever he wants to the Guf, including digging ditches, which the seller does not want.)

In contrast, when brothers return their portions to each other in Yovel, they take back the same portion which they had before Yovel. Therefore, they have no reason to limit each other to receiving only a Kinyan Peros and not a Kinyan ha'Guf, since they are not going to get back the field that the other brother took in any case. Therefore, they may read the Parshah of Bikurim when they bring Bikurim.


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