Siman 658

From the Torah – the lulav is taken in the province only on the first day alone, as it is written: "And you shall take for yourselves on the first day the fruit of a majestic tree," etc. And in the Mikdash – seven days, as it is written in the end of the verse: "And you shall rejoice before Hashem your G-d seven days." And it is expounded in the Torat Kohanim: and not in the borders seven days. And this "and you shall rejoice" – refers to the rejoicing of the lulav, for it cannot be said that it refers to the rejoicing of the peace offerings as in "Re'eh," where it is written: "And you shall rejoice in your festival." For if so, why is it not also written regarding Shavuot as in "Re'eh." Furthermore: for there it is written in the singular: "And you shall rejoice," and not "before Hashem your G-d." Rather, it certainly refers to the lulav. (And in the Yerushalmi there is a dispute, see there.)

And since the Beit HaMikdash was destroyed, Rabban Yochanan ben Zakkai, he and his great beit din in Yavne, ordained that the lulav should be taken in the province for seven days, as a remembrance of the Mikdash. For we are obligated to perform a remembrance of the Mikdash, as it is written (Jeremiah 30:17): "It is Zion, no one seeks her out" – implying that it requires seeking out. And we recite the blessing every day, "Who has sanctified us... regarding the taking of the lulav," for we also recite the blessing "Who has sanctified us with His commandments and commanded us" over a rabbinic mitzvah, as with the Chanukah light. And where did He command us? From "You shall not deviate from the matter that they tell you," etc. And the Rambam wrote in the seventh chapter that this enactment, along with all the enactments – when the Beit HaMikdash is rebuilt, they will return to how they were previously; see there. And I do not know his source. On the contrary: from what we learned in the fifth chapter of Maaser Sheni regarding a vineyard in its fourth year: "And it was a condition of the matter, that whenever the Beit HaMikdash is rebuilt – it shall return to how it was." And this is in order to adorn the markets of Jerusalem with fruit; see there. And it implies that regarding other matters – it is not so, and it requires further study. (And know that there is one who wishes to say that that which we say in Sukkah 46a: "From here on, 'over the commandment of the elders,'" meaning: that this is how one must bless, and not like the explanation of Rashi. And this is nothing, for even if we explain it so – behold Rav and Shmuel disagree, and it is like the Chanukah light. Examine it and you will find it simple.)

It is proven in the Gemara at the beginning of the chapter "Lulav VeAravah" that even in the Mikdash, where all seven days are from the Torah, nevertheless, on the other days when they fall on Shabbat—they would not take the lulav, as a decree lest one carry it four amot in the reshut harabbim, just as with the shofar. However, on the first day they take it, even when it falls on Shabbat. And even though in the Mikdash the first day is equal to all other days, nevertheless, since on the first day they are obligated even in the province—the rabbis did not decree in the Mikdash, which is not the case for the other days. The Rambam wrote similarly in the seventh chapter. He wrote further: that during the time of the Mikdash, the lulav was taken even in the province on the first day that fell on Shabbat, for since they did not decree in the Mikdash—they did not decree in the province either. But this was only in a place where the messengers of the beit din reached, for they would know when the Yom Tov was. But those far away who observed two days out of doubt—would not take it even on the first day, for perhaps today is not Yom Tov, see there.

And since the Beit HaMikdash was destroyed – the sages forbade taking the lulav on Shabbat on the first day, even for the people of Eretz Yisrael who sanctified the month, because of the people of the distant borders who do not know the fixing of the month, so that everyone should be equal in this matter, and these should not be taking it on Shabbat while those are not taking it. Since the obligation of one day is everywhere, and there is no Mikdash to depend upon. That is to say: that during the time of the Mikdash, since it was taken in the Mikdash – it was taken everywhere, for the messengers arrived and they knew that today was the Yom Tov. But when there is no Mikdash – the sages made their measures equal in every place (Kessef Mishneh). For the Mikdash is distinct in many matters from the province, and it is not relevant to make them equal. This is not the case when the Beit HaMikdash was destroyed, and in this time when everyone acts according to the calculation – the matter remains as it was, that the lulav should not be taken at all, neither in Eretz Yisrael nor in the Diaspora on Shabbat, even on the first day, and even though everyone knows the fixing of the month. However, our custom regarding Yom Tov is as if we are not experts, for it is for this reason that we observe two days of Yom Tov of the Diaspora.

And even though regarding the performance of the second day of Yom Tov we differ from the inhabitants of Eretz Yisrael, this is because it is impossible in any other way, for we are compelled to perform the second day of Yom Tov so as not to deviate from the custom of our ancestors. And to say to the inhabitants of Eretz Yisrael that they should also perform the second day of Yom Tov for our sake—it is impossible to perform such a great act for this reason. But "sit and do not act" regarding lulav—it is possible to equalize together (see Lechem Mishneh). And why did they not institute regarding lulav as they did regarding shofar, that they should take it in any place where there is a beit din? It can be said that regarding shofar, which is only one day—they instituted thus. But the lulav—behold, they will take it on the other days. Furthermore: that shofar, which is to raise the remembrance of Israel to their Father in Heaven, they did not want to nullify it entirely (Tosafot Megillah 4b). And nowadays everything is equal, for both shofar and lulav—we do not take them on Shabbat in any place, neither in Eretz Yisrael nor outside the Land.

It is forbidden to move the lulav on Shabbat, as it is muktzeh. There is one who says that for the purpose of its use or its place it is permitted, like a shofar in siman 588 (Taz, subsection 3). This is an astounding matter: for the lulav was set aside for its mitzvah for all seven days, and it is not similar to a shofar (and so it is implied by the Magen Avraham at the end of siman 588, and the Pri Megadim also challenged him). However, the etrog is permitted to be moved, as it is fit for smelling, as I wrote in siman 653, for it was not set aside from its scent. And even according to what I wrote there, that because there is a dispute regarding the blessing it is proper not to smell it, he is able to recite a blessing over the scent of another fruit and smell it (ibid.). It is forbidden to place the etrog on a garment even on Yom Tov, because he creates a scent. There is one who permits it, since he does not intend for this. And pesik reisha is not applicable to this, for there is no matter of melakhah here at all. For that which was explained in siman 511, that it is forbidden to create a scent—that is by means of coals, where there is extinguishing and kindling. This is not the case with an etrog (Magen Avraham, subsection 2 in the name of the Yam Shel Shlomo). Nevertheless, one should be stringent, for ultimately he creates a scent. (Magen Avraham ibid. And it is not compelling, for what he wrote that kindling is permitted on Yom Tov—behold, regarding incense there is also extinguishing, as the Rambam wrote there. Examine carefully and you will find it simple.)

It has already been explained that on the first day of Yom Tov, a person does not fulfill his obligation with the lulav of his fellow, as it is said: "And you shall take for yourselves"—from your own. Therefore, one does not fulfill his obligation unless his fellow gives him the etrog and all the species as an absolute gift. And even if he gave it to him as a gift on condition that he return it, it is a gift, for we hold in Choshen Mishpat siman 241 that a gift on condition that he return it is not called an acquisition of the fruit, but rather an acquisition of the body of the object, which he gives to him completely. However, this is a condition that he must return it to him, and it is a condition like all conditions, and he must fulfill the condition to return it. And if he did not return it, he has not fulfilled the obligation, for since he did not fulfill the condition, the gift is voided. And so it is with any other condition, such as if he said to him: "Behold, I am giving you this etrog on condition that you go to such-and-such a place." If he went, the gift is established, and if not, the gift is voided. And so it is with anything similar to this.

And specifically when he said to him in this language: "I am giving you these four minim as a gift on condition that you return them to me." But if he said to him: "Let it be yours until you fulfill your obligation with it, and afterwards return it to me" – he has not fulfilled his obligation, for this is not the language of a gift, but rather the language of a loan. And on the first day – one does not fulfill the obligation with a borrowed object. And it seems to me that even if he said: "Let it be yours as a gift until you fulfill your obligation with it" – it also does not avail, for this is a gift only for a time, and it is then like a loan. And that which we said regarding a gift on condition to return, that he must return it to him, and if he did not return it he has not fulfilled his obligation – this is even when it was lost to him through an accident, and he wants to pay him – he has not fulfilled his obligation. And it is not because he is liable for accidents like a borrower, for even if it died on account of work where even a borrower is exempt. Here he has not fulfilled his obligation because the condition was not fulfilled, and the gift was voided. Therefore, even though in Choshen Mishpat siman 241 section 11 we brought two opinions regarding the matter of the obligation of payment when it was lost through an accident, nevertheless regarding the matter of fulfilling the obligation – he has not fulfilled his obligation. (See Rosh chapter three siman 30.)

In Hoshen Mishpat there it was explained, that when one says "on condition that you return it to me" without specification, and did not specify when he should return it to him—that he may return it to him whenever he wishes. But regarding an etrog it is not so, for the Tur wrote, and this is his wording: And even if he gave it to him without specification, and did not specify "on condition that you return it to me"—presumably his intention is that he should return it to him, since he needs to fulfill his obligation with it. And if he did not return it to him—he has not fulfilled his obligation. Thus far his words. And all the more so when he said: "on condition that you return it to me." However, from the wording of the Tur it implies that this is specifically when the giver has not yet fulfilled his obligation with it. But if he already fulfilled his obligation with it—it is not so. And according to this, even regarding "on condition that you return it to me," if he already fulfilled his obligation with it—he may return it to him whenever he wishes.

Nevertheless, it is impossible to say so, for the source of his ruling is from the Ittur (Beit Yosef), and there too he wrote according to the wording of the Tur. And he brought a proof from Rabban Gamliel and Rabbi Yehoshua and Rabbi Elazar ben Azariah and Rabbi Akiva, who were coming on a ship, and only Rabban Gamliel had an etrog. And he took it and fulfilled his obligation with it, and gave it to Rabbi Yehoshua, and Rabbi Yehoshua to Rabbi Elazar ben Azariah, and Rabbi Elazar ben Azariah to Rabbi Akiva, and Rabbi Akiva returned it to Rabban Gamliel. And behold, Rabban Gamliel had already fulfilled his obligation with it! And the Ran also wrote this ruling in this wording: And there are those who learned from here: that one who gives a lulav to his fellow on the first day of Yom Tov—it is presumably on condition to return, even though he did not specify, for a person does not empty himself of his mitzvah and give to others, etc. Thus far his words. Behold, he wrote that a person does not empty himself of his mitzvah, meaning: that he should not take his mitzvah and give it to others. And this is also the intention of the Tur, who says: since he needs to fulfill his obligation with it, meaning: that he needs to have the mitzvah all day, and not specifically to fulfill his obligation with it. And so it must be said regarding the intention of our teacher, the Beit Yosef, in section 5, who wrote according to the wording of the Tur, see there. (And it requires further study regarding the commentators of the Tur and Shulchan Aruch, who did not remark on this at all.)

And according to this, all the more so when he said: "on condition that you return it to me" – that he must return it to him immediately. And our teacher, the Beit Yosef, who wrote in section 4: If he gave it to him on condition to return it – he has fulfilled his obligation... and he returns it... and if he did not return it, he has not fulfilled his obligation... and likewise if he returned it after the time of its mitzvah – he has not fulfilled his obligation. Thus far his words. This implies that he may delay it many hours, provided that he returns it within the time of its mitzvah – but it is not so. And our teacher, the Beit Yosef, took the final extreme, that if he returned it after the time of its mitzvah – he has not fulfilled his obligation, but within the time of its mitzvah – he has fulfilled it ex post facto. But nevertheless, he has not acted properly, for ab initio he is obligated to return it to him immediately. And so it was explained in Choshen Mishpat there.

And know that there is one who wrote that this is specifically when he said: "on condition that you return it to me." But if he said: "on condition that you return it," and did not say "to me" – even if he returned it after the time of its mitzvah, he has fulfilled the obligation (Magen Avraham, subsection 4). And it is true that our teacher, the Rema, wrote thus in Choshen Mishpat there, and so we explained there in section 13. But nevertheless, it is not understood, for is it any worse when he said "on condition that you return it" than when he said nothing at all, where he is obligated to return it, and if not he has not fulfilled the obligation, as has been explained? And it must be said: that he holds that in truth this is even worse: since he did not say "to me" – he revealed his intention that he is not particular about when he returns it. And nevertheless, it requires further study. (And it is true that the source of the ruling of the Rema is from the Responsa of the Rashba, Part 1, siman 1000, see there. But it is possible that the Rashba does not hold like the ruling of the Tur, that even in an unspecified case one must return it to him. And so it appears to me somewhat from his wording there. But according to the opinion of the Tur, it appears in my humble opinion that even when he said to him "return it" – he is obligated to return it to him today.)

And with that which has been explained, that when he gave it to him without specification he is also obligated to return it to him, for presumably he gave it to him with this intent—our teacher, the Rema, wrote in section 5 that he must go back and give it to the owner as a gift, so that it will belong to the owner and he may fulfill his obligation with it. Thus far his words. And so even if he said explicitly "on condition that you return it to me"—he must go back and give it to the owner as a gift (Magen Avraham subsection 6 in the name of the Rosh). And the reason is simple: for behold, he gave it to him as a complete gift, but he stipulated that he return it to him, like any other condition. And consequently, he must return it to him also as a gift, for if not so—it has not left his possession. And they questioned our teacher, the Rema, regarding that which he concluded "so that it will belong to the owner"—for certainly it is not because of this, for behold, if he does not return it to him as a gift—it automatically belongs to the owner, since the condition was not fulfilled. Rather, on the contrary: this is for the benefit of the recipient, for if it is not so—he has not fulfilled his obligation with it, since the condition was not fulfilled (the Griz). And I say that our teacher, the Rema, wrote this intentionally. For certainly when he said to him, see there, that you return it to me—it is only for the benefit of the recipient. But without specification: although we say that presumably he gave it with the intent that he return it, nevertheless he did not say so explicitly, and perhaps his intent was not such. Therefore, in this case it is for the benefit of the owner (and especially according to what I wrote that the Rashba does not hold of this law).

Regarding this law, when he says "on condition that you return it to me" or without specification—which is as if he made a condition—the Tur and the Shulchan Aruch wrote in section 5, and this is their wording: However, even if he did not return it to his hand but rather to another, and the other to another, and the last one returns it to the owner—he has fulfilled his obligation. Thus far his words, and they learned this from the etrog of Rabban Gamliel, who gave it to Rabbi Yehoshua, and Rabbi Yehoshua to Rabbi Elazar ben Azariah, and Rabbi Elazar ben Azariah to Rabbi Akiva, and Rabbi Akiva returned it to Rabban Gamliel. And in truth, there is no proof from there, for they were on the sea in a ship, and all were together. And the intention of Rabban Gamliel was to grant them merit. And on the contrary: they spared Rabban Gamliel the trouble, for he himself would have needed to give it to each one of them. And it appears in their opinion that if so, at any rate Rabban Gamliel should have said "give it to each one," and since he did not say it—one may infer from this that it is not necessary. But nevertheless, even so—there is no proof except for without specification, but not when he said "on condition that you return it to me," for the incident of Rabban Gamliel was without specification. And it seems to me that the Tur and the Shulchan Aruch—their intention in this law is also only without specification, and not in the case of "on condition that you return it to me." But in the Responsa of the Rashba there, it is explained that even in the case of "on condition that you return it to me"—he is permitted to do so. And it appears that he only spoke post facto, but ab initio—it is not proper to do so.

Our teacher, the Rema, wrote in section 4 that it is permitted to give him an etrog as a gift on the condition that he does not consecrate it, for it is no worse than a gift on the condition that it be returned. Thus far his words. That is to say: for with a gift on the condition that it be returned—behold, it is impossible to consecrate it, for if he consecrates it—behold, he has nothing to return. And despite all this, it is a gift, and here too it is so. And in Choshen Mishpat siman 241 section 9 we explained this matter, see there. And one should not ask: that according to what I wrote there, whenever it is evident that he does not give it to him completely—it is not a gift. And behold, regarding an etrog—it is certainly evident, for behold we said that even without specification his intention is that he should return it to him. For in truth, they did not say this thing there except when it is evident that he gives it to him only so that he may perform a favor for the giver, see there. And not in a case such as this where he grants him merit in a mitzvah, for certainly his intention is that it should be effective in any manner.

There are those who say that even if he said to him: "Lend me your etrog," and he gave it to him without specification—he has fulfilled the obligation, for we say that his intent is that if the language of borrowing is not effective, he transfers it to him as a gift, like that of the tallit above in siman 14, and the betrothal ring in Even HaEzer siman 28 (Magen Avraham subsection 3, and Taz above siman 14). However, we have already written above in siman 649, section 5, that this is not a valid comparison, and he does not fulfill the obligation in such a case; see there. And so too there is one who says that if his wife gave the lulav on the first day, as a gift on condition that it be returned or without specification, and the husband is not in his house—that it is not effective, for the reason that perhaps it is the husband's will to sell it and receive money for it (ibid.). But among us it is known that it is not the way of a homeowner to do so, and she certainly can do so, and he fulfills the obligation. (See Sha'arei Teshuva subsection 1 in the name of Machaneh Ephraim, that one should be careful that the one who buys an etrog should pay before the festival, since acquisition through money is from the Torah, and pulling is rabbinic. And there are those who hold that what is rabbinic is not effective for what is from the Torah; see there. However, we have already explained several times in Choshen Mishpat that there is no doubt in this that it is effective, and that it is explicitly stated so in the Yerushalmi, fifth chapter of Ma'aser Sheni.)

We say in the Gemara (46b): A person should not acquire a lulav for a child on the first day. What is the reason? A child can acquire, but he cannot transfer acquisition. For a minor does not transfer acquisition to others according to the Torah, and it turns out that if he returned it – it is not returned. And if it is difficult: for if so, it is also not acquired by the child, since it was only given to him on the condition that he return it – this is not so. For since it is impossible for him to return it – it is like a condition that is impossible to fulfill, and the condition is void, and the act stands (Ran ibid.). However, some say that this is only when he has not yet reached the age of pe'otot. But when he has reached six years, which is the age of pe'otot as I wrote in Choshen Mishpat siman 235 – he can give it as a gift, as I wrote there (ibid.). But from the wording of the Rambam and the Tur it does not imply so, for they wrote simply "a minor" (see Lechem Mishneh chapter eight, who also hesitated regarding this). And it is good to say to the child: "Go and recite the blessing over the etrog," and he should not use the language of acquisition with him. And all the more so if he holds the etrog and the lulav in his hand along with the child – it is well and good, for it has not left his possession.

We say in Bava Batra (137b): Brothers who purchased an etrog with the common funds of the household; one of them took it and fulfilled his obligation with it. If he is able to eat it – he has fulfilled his obligation, and if not – he has not fulfilled his obligation. And this is its explanation: that they inherited an etrog from their father, or that they bought an etrog with their father's money with the common funds of the household. As long as they have not divided [the estate], and one of the brothers took it without their knowledge and fulfilled his obligation with it – we see if the brothers are not particular with one another, and he is able to eat it without their permission. For example: that there are many etrogim in the common funds of the household; or that many etrogim are found in the city; or that they already fulfilled their obligation and no longer need it (Rashbam) – he has fulfilled his obligation, for we read regarding it "for you," as it is entirely his. And if not – he has not fulfilled his obligation, for we require that it be entirely his, and not that a portion of it is his (ibid.). And he does not fulfill his obligation until they give him their portion as a complete gift. And according to this, it depends only on whether they are particular or not particular. And if they are merely not particular – he has fulfilled his obligation. And so it appears from the words of the Tur, see there.

But the Rambam wrote in the eighth chapter, law 11, and this is his wording: Brothers who bought etrogim from the common estate, and one of them took an etrog and fulfilled his obligation with it. If he is able to eat it, and the brothers are not particular about this—he has fulfilled his obligation. And if not—he has not fulfilled his obligation, until they give him their portion as a gift. And if this one bought an etrog and that one a quince (a type of fruit), or they bought as one an etrog and a pomegranate and a quince from the common estate—he does not fulfill his obligation with the etrog until he is given his portion as a gift, even though if he ate it—they would not be particular about his eating it. Thus far his words. And this is the approach of the Rif according to their version of the Gemara there, for we require two things: that they are not particular, and that they also have etrogim, for without this their implicit waiver is not effective, for perhaps they also specifically want the etrog. But as long as there are other etrogim, even though this one is more beautiful—we are not concerned for it (Maggid Mishneh and Kesef Mishneh on the Ran, third chapter of Sukkah, see there). And in the Shulchan Aruch the first opinion was not cited at all, for they were concerned for the stringency in a Torah matter.

And so too, partners who bought an etrog or a lulav in partnership—neither of them fulfills his obligation on the first day until the second gives him his portion as a gift. For partners are certainly fastidious with one another. And this is specifically if they did not buy it for the purpose of the mitzvah. But if they bought it for the purpose of the mitzvah—they fulfill the obligation with it, for presumably it was with this intent that they bought it, that each one would acquire his portion as a gift at the time he fulfills the obligation with it. And therefore, that which is practiced in a place where an etrog is not common, where the entire community buys an etrog in partnership—the reason is also thus, that since they bought it so that everyone would fulfill their obligation with it—presumably it is as if they explicitly stated that the entire community gives their portion to whoever takes it to fulfill the obligation with it, on the condition that he returns it to them. And the Rashba in a Responsum (Part 1, Siman 62) explained the matter with good reason, and this is his wording: That anything the community purchased—it does not require a gift, nor an explicit condition, and each one fulfills the obligation with it automatically because of bereirah: for since it is not fit to be divided—the matter is clarified when this one takes it that he takes his own, for each one gave his fellow his portion at the time of his taking it, for on this condition they purchased it. And like that of the partners in Nedarim, the fourth chapter (46b) regarding a courtyard that does not have the law of division, see there. For in such a case everyone agrees that there is bereirah. And the details of this law were explained in Yoreh Deah Siman 226. And because not everyone agrees with this, as is explained there, therefore it is good to announce that each one should give his portion to his fellow as a gift (Magen Avraham, subsection 10). But this is not the practice, because among us there are few where one has an etrog for himself, and many are partners in one etrog, and the standard assumption of the matter is that the intention is thus: that each one intends that it should be according to the law.

The collection of funds for an etrog – one should collect according to wealth, for the beautification of a mitzvah falls more upon the wealthy. And there is one who holds that half is according to wealth and half is according to souls (see Sha'arei Teshuva, subsection 11). And in our locales, they buy from communal funds. However, on Hoshana Rabbah they set out a bowl, and each person gives a small amount according to his will. And a woman is exempt from giving money for the etrog, since she is exempt. However, our women who recite the blessing – they must give. And one who has an etrog for himself – he does not need to give. And every person should strive and be diligent in the mitzvot to buy for himself an etrog and lulav alone, in order to fulfill the mitzvah in its beautification. (And the Magen Avraham wrote in subsection 12: One who has an etrog for himself, and in another city there is no etrog at all – it is better that he provide merit to the public and send his there, and he should recite the blessing over the communal one. And in Sha'arei Teshuva, subsection 12, he wrote: That even for the sake of an individual dwelling in a village who has no etrog – he should do so, see there. And we have not heard of anyone who did so, for in our times everyone can obtain an etrog, even though it is expensive. And nevertheless it is available in reality, which was not the case in the generations before us.)