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Shabbat Parashat Shemot | 5770
Hemdat HaDaf HaYomi: Giving a Present on Condition that it be Returned (137b)Rav Ofer Livnat
This week in the Daf Yomi the Gemara (137b) states that a present given on condition that it be returned is considered a present. The Gemara explains that the ramification of this principle is if someone gives an etrog to someone else on Succot. In order to fulfill the mitzvah of taking an etrog (and lulav, hadas and arava as well) on the first day of Succot, one must own the etrog one takes. Therefore, if one borrows an etrog, he does not fulfill the mitzvah (Succah 30a). How can one give an etrog to a friend, so that he will be able to fulfill the mitzvah, but still ensure that it will be returned to him? The solution is to give the etrog as a present, on condition that it be returned. Since this is considered to be a present, the receiver can fulfill the mitzvah as the etrog is considered his when he takes it, but afterwards he must return the etrog in order to fulfill the condition.
According to the Rosh (Succah 3, 30), a present given on condition that it be returned is a full present and not one given only for a period of time. The condition that it be returned does not limit the ownership of the receiver, but rather only demands that the receiver fulfill the condition. If the condition is not fulfilled, the present is cancelled retroactively. Therefore, when it is returned, an act of kinyan is required. However, a present for a set amount of time is not considered a full present, and one who receives an etrog under such conditions cannot fulfill the mitzvah with it.
The Ketzot Hachoshen (241, 4) disagrees. He claims that a present given on condition that it be returned is a present for only a certain period of time. In the example of the etrog, the etrog is given only until the receiver fulfills the mitzvah. Nevertheless, even ownership limited by time is considered full ownership, and one can fulfill the mitzvah using this etrog. Afterwards, the etrog automatically returns to the possession of the giver. Thus, according to the Ketzot, no kinyan is required when the present is returned. He brings several proofs from Rishonim for his opinion.
There is another ramification to this dispute between the Rosh and the Ketzot regarding an etrog. The Gemara (Succah 46b) warns that one should not give his etrog to a child before he fulfills the mitzvah himself. The reason is that a child can receive something that is given to him, but cannot give something to someone else. Therefore, if one will give his etrog to a child, the giver will no longer be able to fulfill the mitzvah, as the child will not be able to give it back to him. According to the Rosh, the Gemara was not only referring to a regular present, but one should also not give a present to the child on condition that it be returned, as here too a kinyan is required upon the return, and the child will not be able to return it. However, according to the Ketzot, a present on condition that it be returned will work, as the present automatically returns to the possession of the giver after the time elapses, and no kinyan is required.
According to the Rosh, a present given on condition that it be returned, is a present not intrinsically limited by time, rather, if the condition that it be returned is not fulfilled, the present is cancelled retroactively. According to the Ketzot, a present given on condition that it be returned is bound by time, and when the time passes it automatically returns to the possession of the giver. Nevertheless, for that period of time, it is considered a full present.
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