Ask A Question about the Daf

Previous daf

Bava Basra, 136

1) "KINYAN HA'PEROS K'KINYAN HA'GUF"

QUESTION: The Mishnah says that when a man gifts his property to his son, giving him the Guf (the actual land) now and the Peros (produce) after he dies, neither the father nor the son is able to sell the property to a third party in its entirety. Since the father owns only the Peros, he cannot sell the Guf, and since the son owns only the Guf, he cannot sell the Peros. Accordingly, the Mishnah says that if the son sells the property before the father dies, the buyer has no rights to the land (to receive the Peros of the land) until after the father dies.

The Gemara discusses a case in which the son sold the property (the Guf), but then he died before the father died. After the father dies, does the buyer receive the Peros and Guf of the property, even though it never went into the possession of the son (since he died before his father)? Rebbi Yochanan maintains that the buyer does *not* acquire the property at all. Rebbi Yochanan maintains that "Kinyan ha'Peros k'Kinyan ha'Guf Dami" -- whoever owns the rights to the Peros (in this case, the father) also owns the rights to the Guf of the land. Therefore, the son -- who died before every acquiring the Peros -- did not have the property in his possession such that he could sell it to a buyer.

According to Rebbi Yochanan, why is the sale valid when the son does *not* die before his father? The Mishnah says that when the son sells the land, the buyer *does* receive the Guf and the Peros after the father dies! If, as Rebbi Yochanan maintains, the father has the ownership of the Guf by virtue of his ownership of the Peros, then why is the son's sale valid?

ANSWER: The RI MI'GASH answers that when Rebbi Yochanan says that "Kinyan ha'Peros k'Kinyan ha'Guf," he does not mean that the person who owns the rights to the Peros also owns, fully and absolutely, the Guf of the land. Rather, it means that *for all matters concerning the Peros*, the owner of the Peros owns the Guf. As long as the father is alive and he owns the Peros, he also has a Kinyan on the Guf of the land *with regard to the Peros*. This means that he owns the Guf in order to receive its Peros. The actual Guf, though, is in the possession of the son, and that is why he is able to sell it while his father is alive. The sale takes effect after his father's death, when the remaining aspect of the Guf comes into the son's possession retroactively, from the time that the father gifted it to him.

When, however, the son dies before the father, the son's sale of the land is not valid, because at the time that he sold it, he was lacking absolute and exclusive ownership of the Guf -- he did not own the Guf with regard to the Peros, since the father owned the Guf with regard to the Peros. (See RAMBAN, KOVETZ SHI'URIM.) (I. Alsheich)

136b

QUESTION: The Mishnah says that when a man gifts his property to his son, giving him the Guf (the actual land) now and the Peros (produce) after he dies, neither the father nor the son is able to sell the property to a third party in its entirety. Accordingly, the Mishnah says that if the son sells the property before the father dies, the buyer has no rights to the land (to receive the Peros of the land) until after the father dies.

The Gemara discusses a case in which the son sold the property (the Guf), but then he died before the father died. Rebbi Yochanan rules that the buyer does *not* acquire the property at all, because he maintains that "Kinyan ha'Peros k'Kinyan ha'Guf Dami" -- whoever owns the rights to the Peros (in this case, the father) also owns the rights to the Guf of the land (see previous Insight). Therefore, the son -- who died before every acquiring the Peros -- did not have the property in his possession such that he could sell it. Reish Lakish argues and maintains that "Kinyan ha'Peros" is *not* "k'Kinyan ha'Guf," and thus it is the son, and not the father, who owns the Guf, and thus his sale is binding even if he dies before his father.

The Gemara cites another case in which Rebbi Yochanan and Reish Lakish argue whether "Kinyan ha'Peros k'Kinyan ha'Guf Dami" or not (and explains why each one needed to express his opinion in each case). When a person sells to someone else the rights to the Peros of his field, Rebbi Yochanan says that the buyer is obligated to bring the first fruits as Bikurim and to read the Parshah of Bikurim ("Mevi v'Korei"). Reish Lakish argues and says that he must bring the first fruits as Bikurim but he does not read the Parshah of Bikurim ("Mevi v'Eino Korei").

If the buyer is not obligated to read the Parshah of Bikurim, then why is he obligated to bring the fruits as Bikurim altogether?

ANSWERS:

(a) The RAMBAN explains that the reason why the buyer is "Mevi v'Eino Korei" is because, out of doubt, he must conduct himself stringently. Therefore, with regard to bringing Bikurim, the buyer must bring Bikurim out of doubt that perhaps his ownership of the fruit and of the right to take nourishment from the ground qualifies as "Asher Tavi me'Artzecha" (Devarim 26:2), the verse that teaches the obligation to bring Bikurim. He does not read the Parshah of Bikurim, though, because perhaps his ownership of the fruit does *not* qualify as "... ha'Adamah Asher Nasata Li" (Devarim 26:10), the verse which teaches that he must read the Parshah of Bikurim. (See Insights to Bava Basra 81:3.)

(b) TOSFOS explains that the obligation to bring the fruits as Bikurim is only mid'Rabanan; mid'Oraisa, though, the buyer does not have to bring Bikurim, since he does not own the land. The Rabanan did not institute that the buyer must read the Parshah of Bikurim ("from the land that You gave to me") because doing so would appear like saying an untruth, since the buyer does not own the land.

(c) The RASHBAM explains that the reason why, according to Reish Lakish, the buyer does not read the Parshah of Bikurim is because he cannot say the words, "... ha'Adamah Asher Nasata *Li*" -- "from the land that You gave *to me*" (Devarim 26:10), since the land does not belong to him but to the original owner (since "Kinyan ha'Peros" is *not* "k'Kinyan ha'Guf"). However, the buyer *is* obligated to bring the fruits as Bikurim because the buyer *does* own the land with regard to letting his fruits take nourishment from the ground, and thus the verse, "Asher Tavi me'Artzecha" (Devarim 26:2), written with regard to the obligation to bring Bikurim, applies.

TOSFOS questions this explanation. Why does owning the land with regard to letting the fruits take nourishment from it qualify for the requirement of "Asher Tavi me'Artzecha" (Devarim 26:2) with regard to the obligation to bring Bikurim, and not for the requirement of "... ha'Adamah Asher Nasata Li" (Devarim 26:10), with regard to reading the Parshah of Bikurim?

1. The Rashbam might have learned the Gemara the way the TOSFOS RID explains earlier (27a). The Tosfos Rid explains that the requirements for *bringing* Bikurim differ from the requirements for *reading the Parshah* of Bikurim. Although a person cannot read the Parshah of Bikurim unless he actually owns the land beneath the tree, nevertheless he can *bring* Bikurim even though he does not own the land, since he has permission to keep his tree there. The reason for this is because the verses that discuss bringing Bikurim ("Artzecha" (Devarim 26:2) and "Admascha" (Shemos 23:19)) exclude only fruit brought from trees planted on land that he has no permission to use (see Sukah 9a). The verse discussing *reading the Parshah* of Bikurim says "ha'Adamah Asher Nasata Li" (Devarim 26:10), which implies that the land was actually given to him and he owns it. (See Insights to Bava Basra 27:1:b, and 81:2.)

The Tosfos Rid learns this from the words of Reish Lakish here as well as from the reply of Rebbi Elazar in the Gemara earlier (81a). When Rebbi Elazar was asked why does a person bring Bikurim when he owns two trees if he does not read the Parshah, Rebbi Elazar replied that the "early authorities did not tell the reason, and you are asking me to teach it in the Beis Midrash?!" This implies that there *is* a reason to distinguish between bringing Bikurim and reading the Parshah of Bikurim, but Rebbi Elazar did not want to teach it in the Beis Midrash. Rebbi Elazar maintained that we do not compare the obligation to bring Bikurim to the obligation to read the Parshah of Bikurim.

This also seems to be the opinion of the Rashbam here when he writes that one does not need to own the land beneath the tree in order to bring Bikurim, but he does need to own the land in order to read the Parshah of Bikurim.

2. The KETZOS HA'CHOSHEN (257:3) explains the Rashbam based on the words of RABEINU AVIGDOR KOHEN TZEDEK cited by the TESHUVOS HA'ROSH (#35). Rabeinu Avigdor explains the reason for why one fulfills his obligation of Arba'as ha'Minim with an Esrog that was given to him as a gift on condition that he return it ("Matanah Al Menas l'Hachzir;" see Gemara later, 137b). He explains that even though the recipient's right to use the Esrog temporarily is a Kinyan Peros (the "Peros" referring to the usage of the object), and in order to fulfill the Mitzvah of Arba'as ha'Minim one must *own* the Esrog ("v'Lakachtem *Lachem*;" Vayikra 23:40), a temporary ownership suffices to meet this requirement. Even though the recipient is not permitted to eat the Esrog (since he must return it eventually to the giver), his ownership of the Esrog is considered a Kinyan ha'Guf for the moment that he is in possession of it, and the Torah requires only that it be considered his object for the moment that he uses it for the Mitzvah.

Based on this, the Ketzos ha'Choshen explains that the Rashbam is saying that the buyer is obligated to bring the fruits as Bikurim because, at the moment that he brings ("Asher *Tavi*") the fruits, the land is considered to belong to him with a temporary Kinyan ha'Guf, since the seller sold to the buyer the land with regard to reaping the fruits. (It is called a "Kinyan Peros" because the Kinyan ha'Guf is only temporary.) The reason why the buyer does not read the Parshah of Bikurim is because he cannot say, "... ha'Adamah Asher Nasata Li" -- "from the land that You gave to me" (Devarim 26:10), since this implies a permanent ownership (even beyond the moment at which the owner brings the Bikurim), and the buyer's ownership of the land is not permanent.

RAV SHACH zt'l (in AVI EZRI, Hilchos Ishus 8:24, end of #2) explains the intent of the Ketzos ha'Choshen as follows. The verse that teaches the obligation to bring Bikurim, "Asher Tavi me'Artzecha" (Devarim 26:2), implies that the obligation depends on whether the land is in his possession or not. Since the land is in his possession at this moment, he is obligated to bring Bikurim. In contrast, the verse that teaches the obligation to read the Parshah of Bikurim, "ha'Adamah Asher Nasata Li" (Devarim 26:10), implies that in order to read the Parshah of Bikurim, the one bringing the fruits must be the absolute and unconditional owner of the land, with complete sovereignty over it. If he is required to give the land back at some later time (i.e. when the trees die, or when the term of the sale of the fruits is over), then he does not have complete sovereignty over the land and is not the absolute and unconditional owner, and therefore he does not read the Parshah of Bikurim. (I. Alsheich)