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 Shabbat Succot | 5764P’ninat MishpatMatana al Menat Leaachzir - Gift on Condition to Return
We saw last week that one can give a present on condition that it is later returned and that this system can be used to transfer a lulav back and forth so that a few people can fulfill their mitzva on the first day of Sukkot. This idea fits into the general framework of conditional transactions. Generally, such conditions must be formulated with a specific halachic formula. If not, the transaction takes hold unconditionally (Gittin 75a). However, the Shulchan Aruch (Orach Chayim 658:5) rules that when one gives a lulav to a friend on the first day without saying a word, we make a few assumptions. We assume that he gave it as a present, not a loan. We also assume that the present is conditional on the lulav’s return. This is based on a concept, hinted in a few places in Shas, that when one’s intentions are fully clear without saying a word, the formula to make conditions is unnecessary (see Tosafot, Kiddushin 49b).
Since conditions can be assumed based on a person’s intentions in regard to lulav on Sukkot, the poskim discuss what the unspoken intentions are in a variety of cases. For example, what happens if the lulav is lost or rendered unkosher but the recipient is ready to pay for it? Is that considered returning the object or not? (See discussion in Biur Halacha 568:5). What happens if one gives the lulav to a minor who is incapable of halachically transferring it back? (In other realms, it might only be important to get back the object physically, but here he needs it back halachically). The Ran (on Sukka 46b) employs the rule that a condition which cannot be fulfilled (i.e. the minor cannot return the lulav) is an invalid condition, and so the present goes through unconditionally.
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