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Sukah 35

1) ESROG OF "ORLAH": NOT "LACHEM," OR LACKING ITS SHI'UR?

QUESTION: The Mishnah (34b) states that an Esrog of Orlah may not be used for the Mitzvah. The Gemara asks why such an Esrog is Pasul, and cites the answer of two Amora'im -- it is either because such an Esrog is not permitted to be eaten ("Ein Bo Heter Achilah") and thus it is not considered "Lachem," or because one has no monetary ownership of an item of Orlah ("Ein Bo Din Mamon"), and thus it is not considered "Lachem." The former Pesul is also cited as the reason one may not use an Esrog of Terumah Teme'ah.

Why is the Gemara looking for the reason why an Esrog of Orlah cannot be used? Fruits of Orlah must be burned, as must fruits of Terumah Teme'ah, and thus they should be considered burned to ashes already and lacking the requisite Shi'ur -- "Ketutei Michtas Shi'urei!"

In fact, it would have been much more appropriate for the Gemara to have cited the Pesul of "Ketutei Michtas Shi'urei" because that makes the Esrog Pasul for all seven days of Sukos. The Pesul of "Lachem" (one cannot eat it, or one has no monetary ownership of the item) applies only on the first day! Why does the Gemara give a secondary reason for the Pesul of an Esrog of Orlah and of Terumah Teme'ah and leave out the primary reason, which has implications for all seven days of Sukos?

ANSWERS: The Rishonim offer a number of different approaches to this question:

(a) TOSFOS (DH l'FI) answers that the Gemara could have said that an Esrog of Orlah is Pasul because of "Ketutei Michtas Shi'urei." The point of "Ein Bo Heter Achilah" or "Ein Bo Din Mamon" does not add anything to our understanding of why an Esrog of Orlah is Pasul. The only reason why the Gemara records this discussion is to explain the case in the end of the Mishnah of an Esrog of Ma'aser Sheni, according to Rebbi Meir who holds that Ma'aser Sheni belongs to Shamayim ("Mamon Gavoha"). According to the opinion that says that an Esrog must have a "Heter Achilah," an Esrog of Ma'aser Sheni is valid because it may be eaten (albeit only in Yerushalayim). According to the opinion that says that an Esrog must have a "Din Mamon," an Esrog of Ma'aser Sheni is Pasul according to Rebbi Meir, because the person does not have full ownership of it.

(b) The RAMBAM (Hilchos Lulav 8:9, and in Perush ha'Mishnayos here) explains that an Esrog that has no "Heter Achilah" is indeed Pasul for all seven days. He learns that the fact that it cannot be eaten not only takes it out of the category of "Lachem," but it also takes the Esrog out of the category of being a fruit. The Esrog must be a "Pri Etz Hadar;" if it is not edible it is not a Pri (fruit) at all, and therefore it is Pasul.

Alternatively, the Rambam (in Mishnah Torah) means that it is not proper to use such an Esrog for the Mitzvah since it is Asur b'Hana'ah. The Gemara earlier (30a) cites a verse (Malachi 1:8) from which we learn that items used for Mitzvos must be respectable, and something which is Asur b'Hana'ah does not fall into that category (REBBI AVRAHAM MIN HA'HAR). Therefore, the reason of "Ein Bo Heter Achilah" makes the Esrog of Orlah Pasul all seven days, and thus it is just as good as the reason of "Ketutei Michtas Shi'urei."

Why, though, does the Gemara mention the opinion which says that an Esrog must have a "Din Mamon" and be legally owned in order to use it for the Mitzvah? That reason only makes the Esrog Pasul for the first day (because it is not "Lachem")! It must be that, as we mentioned above (a), this reason is mentioned only to explain the end of the Mishnah, why an Esrog of Ma'aser Sheni may not be used (according to Rebbi Meir).

(c) The KAPOS TEMARIM suggests an answer which is also found in the PISKEI RID. When the Mishnah says that an Esrog of Orlah is Pasul, it means even an Esrog of Orlah of Chutz la'Aretz. The owner of fruit which is Orlah grown in Chutz la'Aretz may not eat that fruit, but he may feed it to others (Kidushin 39b). Accordingly, the Esrog is not "Ketutei Michtas Shi'urei," since it does not have to be burned and may even be sold. Why, then, may such an Esrog not be used? It must be because it is not considered "Lachem" since it may not be eaten.

Why, though, does the Gemara give that reason for an Esrog of Terumah Teme'ah, when it could have given the reason of "Ketutei Michtas Shi'urei?" The answer, explains the Piskei Rid, is that Terumah Teme'ah is also not "Ketutei Michtas Shi'urei," because one *may* derive benefit from it! Even though Terumah Teme'ah must indeed be burned, it is not similar to other Isurei Hana'ah. One may not derive any benefit from other types of Isurei Hana'ah, even while they burn. One may, however, derive benefit from Terumah Teme'ah as it burns (such as using it to provide light by burning it in an oil lamp). In such a case, where there is a permissible way to derive benefit from the forbidden item, "Ketutei Michtas Shi'urei" does not apply.

However, if the Gemara is discussing an Esrog of Orlah of Chutz la'Aretz, how does the reason that "Ein Bo Mamon" make it Pasul? A fruit of Orlah of Chutz la'Aretz *is* considered to be legally owned, and can even be sold! The Piskei Rid answers, as we learned above (a & b), that the reason of "Ein Bo Mamon" is mentioned here only because it will be used by the Gemara later to explain the case of an Esrog of Ma'aser Sheni.

(d) The BA'AL HA'ME'OR and the RA'AVAD (as cited by the Ritva) rule that an Esrog of Orlah may indeed be used on the remaining days of Sukos. On the first day it may not be used because it is not "Lachem," since it may not be eaten, like the Gemara says.

According to their opinion, though, why is it not "Ketutei Michtas Shi'urei?" Since it must be burned, it should be "Ketutei Michtas Shi'urei" and be Pasul for all seven days of Sukos!

The answer might be that TOSFOS (DH l'Fi) makes a point of saying that the obligation to burn Orlah is not only mid'Rabanan, but it is even mid'Oraisa. The Torah requires that Orlah be burned and not just buried. (The Gemara nowhere tells us explicitly that Orlah must be burned *mid'Oraisa*, but Tosfos suggests that this might be the case.) Why does Tosfos go to such lengths to show that burning Orlah is a Mitzvah d'Oraisa? Perhaps Tosfos maintains that if the Mitzvah to burn it is only mid'Rabanan, then "Ketutei Michtas Shi'urei" will not apply. "Ketutei Michtas Shi'urei" does not mean that anything which is Asur b'Hana'ah is not considered to have a Shi'ur, but rather it means that anything which the *Torah* commands to burn does not have a Shi'ur. If it was only the Rabanan who required that Orlah be burned, then it is still not considered burned and there is no Pesul of "Ketutei Michtas Shi'urei."

Perhaps the Ba'al ha'Me'or agrees with the logic of Tosfos, that "Ketutei Michtas Shi'urei" applies only when there is a Mitzvah d'Oraisa to burn the item. However, he argues with Tosfos and maintains that when it comes to Orlah, there is no Mitzvah d'Oraisa to burn it. Therefore, an Esrog of Orlah is not Pasul because of "Ketutei Michtas Shi'urei," and hence it is Pasul only on the first day.

Similarly, Terumah Teme'ah is only Pasul on the first day. Why does "Ketutei Michtas Shi'urei" not apply? Since Terumah of fruits (other than wine and oil) is only mid'Rabanan, there is no Mitzvah d'Oraisa to burn an Esrog of Terumah Teme'ah, and therefore "Ketutei Michtas Shi'urei" does not apply.

(e) The RAMBAN (in Lulav ha'Gadol) and the RITVA (34b, 35a) explain that when the Gemara says "Ein Bo Heter Achilah," it actually means that it is Asur b'Hana'ah and not just b'Achilah, and thus it is "Ketutei Michtas Shi'urei."

Why does the Gemara give the reason of "Ein Bo Din Mamon?" That certainly does not mean that it is Asur b'Hana'ah! It must be that this reason is mentioned only to explain the case of an Esrog of Ma'aser Sheni (as we explained above), and it was not meant to be an explanation for why an Esrog of Orlah cannot be used. (In fact, the Ritva goes so far as to say that Orlah *does* have a "Din Mamon." Even though Orlah is Asur b'Hana'ah, its owner still has legal ownership over it. This is a subject debated by the Rishonim in many places.)

QUESTION: The Gemara cites an argument between Rebbi Chiya bar Avin and Rebbi Asi regarding whether one must have legal ownership ("Din Mamon") of an Esrog, and not just be permitted to eat it ("Heter Achilah"), in order to fulfill the Mitzvah with it. The Gemara explains that the practical difference will be in a case of an Esrog that has a "Heter Achilah" (it may be eaten) but does not have a "Din Mamon" (it is not legally owned by the person). An Esrog of Ma'aser Sheni, according to Rebbi Meir, is such a case; the Esrog may be eaten (in Yerushalayim), and yet the Esrog does not belong to its owner, but rather to Shamayim, according to Rebbi Meir.

When the Gemara first cites this argument to explain why an Esrog of Orlah may not be used, RASHI explains that an Esrog of Orlah does not have a "Din Mamon" because it is not worth a Perutah ("Ein Bo Shaveh Perutah"), since it is Asur b'Hana'ah. Consequently, it is not considered "Lachem" -- a person cannot be considered to have ownership of such an item which has no worth.

Rashi earlier similarly implies that if an item is worth less than a Perutah it cannot be considered to be legally owned and it is not considered "Lachem." In the Gemara earlier (27b), the Rabanan prove that a borrowed Sukah may be used for the Mitzvah because the verse implies that only a Sukah in which all of Israel are able to sit is valid. In order for all of Israel to sit in one Sukah, it must be that one person owns the Sukah and the others fulfill their obligation by *borrowing* his Sukah. It cannot be that they all own the Sukah collectively, Rashi asserts, because since there are so many people, no on would own a Perutah's worth of the Sukah; it would not be considered "Lachem" and no one could fulfill his Mitzvah with it. We see from there that in order to be considered owned, an item must be worth at least a Perutah.

The SEFAS EMES (30a) asks, according to Rashi, that something which is not worth a Perutah is not considered "Lachem," why does the Gemara say that the practical difference (whether an Esrog must be owned or not) is only in a case of an Esrog of Ma'aser Sheni? The Gemara should say a much simpler difference -- a case of an Esrog which is worth less than a Perutah! Such an Esrog is not "Lachem" according to the opinion which requires an Esrog to have a "Din Mamon!"

In addition, the MINCHAS CHINUCH (325:9) and the SHA'AREI TESHUVAH (OC 482:1) ask that we know that there is a requirement for Matzah to be "Lachem" (Pesachim 38a). But we do not find a requirement that the Matzah must be worth at least a Perutah. Similarly, the Aravos we use for the Arba'ah Minim are often very inexpensive and not worth a Perutah. If so, how is it permitted to use Matzah or Aravos for the Mitzvah when they are not worth a Perutah and not considered "Lachem?"

ANSWER: The SEFAS EMES explains that when Rashi says that something that is not worth a Perutah is not considered owned ("Lachem"), he is referring only to an item of Orlah, and other Isurei Hana'ah. An item which is Asur b'Hana'ah has absolutely no value at all (for example, if one were to take a thousand fruits of Orlah and add them together, they would still have no value). Items which are not Asur b'Hana'ah, but merely have little value and are worth less than a Perutah, are considered to be owned, because if one adds them together they will come to more than a Perutah's worth and be considered legally owned. Since such items add up to more than a Perutah when combined with the rest of one's property, they are certainly considered legally owned and are even considered "Lachem." (The Gemara makes such a differentiation in Gitin 20a. See also TOSFOS RID, Sukah 41b, who permits Aravos worth less than a Perutah.)

Why, then, does Rashi earlier (27b) say that it must be that one may use a borrowed Sukah, because it is impossible for all of Israel to own one Sukah? There, the Sukah is not Asur b'Hana'ah, and thus the small portion of Sukah which each person owns should be considered legally his and "Lachem!"

Rashi cannot mean that one has no legal right over what is worth less than a Perutah. (We find that a Nochri is even killed for stealing less than a Perutah, Sanhedrin 61a.) He also cannot mean that what is worth less than a Perutah lacks "Din Mamon" and is therefore not considered Lachem, for then he would be explaining the Tana only according to the opinion that rules a "Din Mamon" is necessary, and not according to the other Amora'im who do not require Din Mamon. Rashi must mean something else entirely. RAV YISROEL ZEV GUSTMAN, zt'l, explained that when we say that if a person owns something which is worth less than a Perutah it is considered "Lachem," that refers only to something that he owns by himself. Owning an item through a partnership ("Shutfus") is different. In a partnership, if a person does not own a portion equal to a Perutah or more, he does not own enough to make it considered "Lachem." Even when someone owns more than a Perutah in a partnership it is not fully "Lachem" (see, for instance, TOSFOS 27b DH Kol, who argues that one does *not* fulfill a Mitzvah which requires "Lachem" with an object that he owns in a partnership). When each person's portion amounts to less than a Perutah's worth, and even that is only in a partnership, it is not considered "Lachem" at all.

(For further discussion about the ownership of less than a Perutah we will b'Ezras Hashem wait for Gitin 12b, Rashi DH Loveh.)

35b

OPINIONS: The Mishnah (34b) states that if an Esrog has spots of blight covering a majority of it, then it is Pasul. In the Gemara, Rava says that if the spots are on the Chotam, then even the smallest amount will make the Esrog Pasul. What is the Chotam?

(a) RASHI, as explained by the ROSH, says that it the Chotam is a thin circular strip around the surface of the Esrog at the place where it begins to slope sharply towards its point (what we call the Pitam). The Chotam is not comprised of the entire area of the slope, but only the small strip of area around the Esrog at the point that the slope begins.

(b) RABEINU CHANANEL and the RIF (as explained by the Rosh) explain that the sloping area itself, from the point where it begins to slope until the Pitam, is called the Chotam.

(c) The RAMBAM, RITZ GE'AS, and the RAN (quoting the explanation of "others") explain that the Chotam is the peg-like stem that holds the crown (Shoshanta) on top of the Esrog.

HALACHAH: The ROSH rules that we should be Machmir and follow both the opinions of Rashi and Rabeinu Chananel. Therefore, if an Esrog has a minimal amount of spots on it from the point that it begins to slope, including the area itself where the slope begins, until the Pitam, it is Pasul. (See graphic)

OPINIONS: The Mishnah (34b) states that if the Pitam fell off, the Esrog is Pasul. The Gemara quotes a Beraisa in which Rebbi Yitzchak ben Elazar said "if the Buchna fell off." What is the Buchna?

(a) RASHI, the RAMBAM (Hilchos Lulav 8:7), and the RAN (quoting the explanation of "others") say that the Buchna is the little crown at the top of the Lulav ("Shoshanta") and the little peg-like stem that supports it (i.e. what we call the Pitam). Rebbi Yitzchak ben Elazar is not arguing with the Mishnah, but is just explaining, in other terms, what the Mishnah means by "Pitam."

(b) The RIF, RAN, and RABEINU YITZCHAK HA'LEVI cited by Rashi explain that the Buchna is the ball at the root of the Ukatz, the piece of wood at the bottom of the Esrog from which it hangs from the tree. If the Ukatz falls off without the little ball which is inside the Esrog, then it is valid because the Esrog is not Chaser, lacking, nor does it appear to be lacking. However, if the little ball itself comes out too, then the Esrog is lacking and it is Pasul.

HALACHAH: The SHULCHAN ARUCH (OC 648:8) rules like the Rif and Rambam, that if the Ukatz at the bottom of the Esrog falls off, the Esrog is Pasul since it is lacking. If, however, the ball inside the Esrog which is attached to the Ukatz did not come out with the Ukatz (i.e. the missing Ukatz does not leave an indentation in the Esrog), then the Esrog is valid since it is not considered lacking (Rema there, and Mishnah Berurah 648:33-34).