SALT - Friday, 29 Kislev 5780 - December 27, 2019

  • Rav David Silverberg
            Yesterday, we noted the halakha relating to an “akhsenai” – a guest lodging in somebody’s home during Chanukah.  The Shulchan Arukh (O.C. 677:1), based on the Gemara (Shabbat 23a), rules that if the guest has nobody at home who lights Chanukah candles, then he fulfills the mitzva by giving the host a small amount of money.  As we saw, some understood that the guest is required to purchase a share in the candles, or in the oil and wicks, and this way he is included in the host’s lighting and he thereby fulfills the mitzvaRav Asher Weiss challenged this perspective, however, raising several questions, including the famous rule of “ma’ot einan konot,” which says that paying money for a moveable object does not independently effectuate the transfer of ownership.  The Gemara and Shulchan Arukh require only giving money to the host – despite the fact that, according to the halakhot governing financial transactions, moveable merchandise does not come into the buyer’s possession until he takes it or lifts it, even after paying the money.  This would suggest that the purpose of the requirement to pay a coin to the host is not to acquire part ownership in the materials.
            Rav Weiss cited a refutation of this argument by the Imrei Emet (Rav Avraham Mordechai Alter, the third Rebbe of Ger), printed in Mikhtevei Torah (12).  The Imrei Emet cited his father, the Sefat Emet, as establishing that an exception to the rule of “ma’ot einan konot” is made in the case of partners who make transactions.  As discussed yesterday, according to the accepted view (that of Rabbi Yochanan, in Masekhet Bava Metzia 47a-b), Torah law indeed regards a piece of merchandise as entering the buyer’s possession once he transfers payment to the seller.  However, the Sages enacted a provision suspending the legal transfer of ownership until the buyer takes physical possession of the merchandise, as a means of incentivizing the seller to properly care for the item in the interim.  If the buyer becomes the object’s owner immediately after paying, even though the object is still in the seller’s property, the seller has no interest in protecting the object, which no longer belongs to him and for which he already received payment.  The Sages therefore established that the object legally belongs to the seller even after he received payment, until the buyer takes physical possession, so that he would need to return the money if anything happened to the object.  The Imrei Emet noted that when it comes to partners, there is no such concern, as partners indeed have vested interest in securing their shared assets.  When somebody wishes to purchase a share in somebody else’s possession, the seller quite obviously does not want the item in question to be ruined or lost after receiving the money, as he enjoys part ownership even after the transaction.  In such a case, therefore, according to the Imrei Emet, we revert back to the level of Torah, according to which payment suffices to effectuate the transfer of ownership.  Hence, when a guest pays money to his host, he legally acquires a share in the materials for the candle lighting despite performing no action with the materials.
            The Imrei Emet proposes that for this reason, the Gemara and the Shulchan Arukh formulate the akhsenai’s requirement in this case with the term, “participate” – “le-hishtateif.”  This word emphasizes the state of legal partnership (“shutfut”) that is created through this process, and this status, according to the Imrei Emet, is the reason why the mere payment of money suffices for the akhsenai to acquire a share in the lighting materials.
            Rav Weiss countered by citing several sources that apply here the concept of “lo pelug” – that a Rabbinic enactment remains applicable even in circumstances when its reason is not pertinent.  While it is true that one who sold a share in an object has vested interest in protecting it, nevertheless, once the Sages enacted the need for the buyer to take physical possession for the transaction to be effectuated, this rule applies even in the case of a partnership.  Rav Weiss thus argued that the akhsenai’s payment is not made for the purpose of acquiring a portion in the materials.
            Instead, Rav Weiss contended, Chazal required the guest to pay the host in order to become legally considered part of the household.  The Chanukah candle obligation is one which rests upon the household (“neir ish u-veito” – Shabbat 21b), and so in the case of a guest, the Sages instituted a mechanism whereby the guest becomes halakhically part of his host’s household so that he can fulfill his obligation through the host’s lighting.  By symbolically participating in the household expenses, the guest formally becomes a member of the household, and he is then naturally included in the host’s lighting, just as the host’s family members are.