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 Shabbat Sukkot | 5765P’ninat Mishpat This year may present us with a more lenient application of the rules of kinyanim (acts of acquisition) than usually exists in regard to the need to buy a separate set of arba’at haminim (=lulav) for children under bar mitzva.
The gemara (Sukka 46b) says that one shouldn’t give (with a kinyan) his lulav to a minor on the first Yom Tov, because a minor can receive an object but cannot give it to others. On the first Yom Tov, one must fully own the lulav when performing the mitzva (Shulchan Aruch, Orach Chayim 649:2). If a father gives his lulav tohis son, no adult will be able to use it to fulfill the mitzva, because a minor is incapable of fully transferring ownership to another. The Shulchan Aruch (658:6) does bring a dissenting opinion (Ran) that a child at the stage of p’utot (who understands buying and selling- usually at age six) is able to halachically give the lulav back (see Shulchan Aruch, CM 235:1). Many poskim counter that the minor can acquire the lulav on the levelofTorah law (when it is given to him by an adult) but can return it only rabbinically. Therefore, adults will subsequently not have the Torah-level ownership they require. The Ran can argue that a minor can acquire an object only rabbinically, and he can return it on the same level (see Biur Halacha, ad loc.). Others explain that the machloket depends on the classic question whether kinyanim of rabbinic origin work in regard to halachot from the Torah (Melamed L’hoil I,120). The Shulchan Aruch’s first, stringent opinion is considered the more authoritative one.
When Sukkot starts on Shabbat [like this year], we start taking the lulav on the second day. In Eretz Yisrael, we do not need ownership of the lulav on the second day (Shulchan Aruch 658:1). Therefore, a father can lend his set to his children. Even in a regular year, he can give it as a present to his child on the first day after all adults have fulfilled the mitzva. In chutz la’aretz, ownership is needed on the second day, which is treated like the first (Mishna Berura 658:23). Thus, the only agreed upon way to share in chutz la’aretz [even this year] is to give the lulav to the child after the adults are done on the second day.
We wrote that this year might be more lenient than other years. We actually hope and pray that these words will be read in a re-built Yerushalayim in the shadow of the Beit Hamikdash. The pasuk (Vayikra 23: 40) says that at the mikdash we use the lulav (on a Torah level) for seven days. The question then arises whether the law that one needs to own his lulav applies all of the seven days. Tosafot (Sukka 29b) says that all of the requirements of lulav apply whenever the mitzva is from the Torah. Only in regard to the rabbinic applications do we distinguish between different requirements for the lulav. However, the Ritva (ad loc.) points out that the word “lachem” (yours) is written in regard to the first day, and he claims that the requirement of ownership does not apply to lulav on the other days, even in the Beit Hamikdash.
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