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)
ANSWERS:
(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.