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Buying Chanukah Candles: A Halachic Concern?

 

There are several mitzvos in the Torah in which a person must own the item in order to perform the Mitzvah.

The best known of these is Lulav and Esrog (the Four Species), in which the Torah states that the minim (on the first day of Sukkos) must belong to the person shaking them, a principle referred to (based on the word in Vayikra 23:40) as “lachem.”

Similarly, Tzitzis must belong to the person wearing them (see Shulchan Aruch, Orach Chaim 14:3), and Matzah, according to many opinions, to the person eating it.

A question arises concerning Chanukah candles. Must they – candles or oil – belong to the person kindling the lights, or may one light with somebody else’s candles or oil?

One practical ramification of this question is whether it is permitted to “borrow” oil or candles from a neighbor, in particular where it is taken without permission (when taken with permission, since different oil will be returned, the assumption is that the borrowed oil becomes the property of the borrower).

May one light with borrowed oil which doesn’t belong to the person lighting, or must one acquire the oil?

A further question is whether one who is a guest and needs to join with his host’s lighting must actually acquire the oil or he can just receive verbal permission from the host.

This issue is discussed below.

Your Own Chanukah Lights

The opinion of Rav Zvi Pesach Frank zt”l (Mikraei Kodesh, Chanukah p. 50) is that the oil for the Chanukah lights must be the full property of the person lighting them.

He derives this from the Ran (Pesachim 7b), who discusses the wording of the blessing recited over the candles. The principle which the Ran derives from the conclusion of the Talmudic passage, is that there is a distinction in the wording of berachos, between blessings over mitzvos that can be performed through an agent, and those that must be performed by a person himself: Over mitzvos that can be performed via an agent, one inserts the word “al” at the conclusion of the blessing, whereas for mitzvos that cannot be performed via an agent, the word “al” is omitted.

Based on this principle, the correct blessing for Chanukah candles (which one may perform via an agent) would seem to be Al Ner Chanukah, rather than Lehadlik Ner Chanukah, which is the blessing that the Gemara quotes.

The Ran replies by citing the case of a guest (at a hostel or hotel – an achsanai), who must make a monetary contribution to his host for Chanukah lights (Shabbos 23a’ Shulchan Aruch. Orach Chaim 677:1) in order to fulfill the mitzvah of lighting together with his host. It follows that the mitzvah cannot be [entirely] fulfilled through somebody else. Rather it seems some ownership is required. This principle is also stated by the Ramban (ibid).

It thus appears, writes Rav Zvi Pesach Frank, that one may only light with one’s own Chanukah oil, and not make use of another’s.

Recalling the Menorah

Rav Zvi Pesach Frank proceeds to offer an interesting explanation why the oil or candles must belong to the individual kindling them, based on the Menorah in the Beis Hamikdash that the lighting commemorates.

Since the Chanukah candles commemorate the Menorah of the Mikdash, we can understand that just as each member of Klal Yisrael had a share in the oil of the Menorah (by means of his annual contribution to the Mikdash), so the oil of Chanukah candles must be owned by the person lighting them.

This argument is certainly not conclusive: There are many elements of our Chanukah lighting – both in the form of the Chanukah candelabrum and the oil or candles we use – that differ substantially from the Menorah, and it is therefore hard to derive laws on our own from the lighting of the Menorah. Rav Frank understands this, and presents his argument as justification rather than causation.

Moreover, the reasoning offered by Rav Frank does not apply to Shabbos candles, in spite of the similar halachic principle whereby a guest has to make a financial contribution to the owner of the candles.

However, a number of authorities (see Beis She’arim, Orach Chaim 361; S’dei Chemed, Maareches Chanukah) concur with the ruling, and apply the condition of lachem, as we find concerning an Esrog or Tzitzis, to Chanukah candles.

Prohibited and Stolen Oil

On the other hand, the rulings of several authorities suggest that there is no need for the candles to be owned by the person fulfilling the Mitzvah.

The Pri Megadim (Introduction to Orach Chaim, 1:24) writes that it is permitted to kindle Chanukah lights with oil of Issurei Hanaah (whose benefit is prohibited, such as orla). In this ruling, he expresses no concern for the fact that according to many authorities, Issurei Hanaah are not owned by anyone (see Ketzos HaChoshen 406:1; Nesivos HaMishpat 275:1). These authorities believe that things whose benefit is prohibited cannot be owned, which ought to raise a problem where ownership is necessary.

A similar ruling is implied by Shaarei Teshuvah (673:1), citing Shaar Efraim (38), who rules that one may not light Chanukah candles with Issurei Hannaah, but fails to note any lack of halachic ownership.

Furthermore, we find that the Mishnah Berurah (673:2) expresses doubt as to whether one may kindle the Chanukah lights with stolen oil. The relevant question, as presented by the Sho’el U’Meishiv (cited by the Mishnah Berurah), is whether the principle of a Mitzvah fulfilled by means of a transgression (mitzvah ha-ba be-aveirah) applies even to a rabbinic obligation. The matter of ownership – an obvious concern with stolen oil – is not mentioned.

Buying a Share of the Oil

As noted above, the principle proof of Rav Frank is the case of a guest who must purchase a share in his host’s oil to fulfill the mitzvah with him. Assuming, as it appears from the authorities noted above, that there is no condition of lachem with respect to Chanukah lights, the question of the guest requires attention. If ownership is not required, why is it necessary to purchase a share in the oil?

One resolution is to differentiate between a person’s own lighting, for which the candle or oil need not be personally owned, and participating in somebody else’s lighting (the hostel owner’s), for which one must purchase a share.

The rationale behind this distinction is that for a person’s own lighting, his connection with the mitzvah is guaranteed through his performance. In contrast, when a person is joining with another (his host), he needs to have some personal connection with the performance, which is achieved by means of his purchase of (part of) the oil.

This distinction leads to some interesting rulings: for one’s own lighting, no ownership of oil is required. But for an agent (shaliach) one must ensure actual ownership of the oil or candles.

Paying for Participation in the Mitzvah

An alternative explanation, however, is that the point of purchasing a share in another’s lights is not to achieve ownership of the oil, but it is rather a token of the two parties joining together in fulfilling the mitzvah.

This approach has been suggested by Pnei Meivin (223), who proves his point by asserting that the simple donation of money (as prescribed by the Gemara and Poskim) cannot give the purchaser a halachic share of the oil.

After Chazal annulled the power of kinyan kessef for moveable items (the Sages declared that transfer of money, though a Torah form of acquisition, is insufficient to transfer ownership of movables), to acquire legal ownership the buyer has to make an additional kinyan in addition to paying money (such as raising the item by hand, or bringing it into his private domain) – a condition not mentioned by any halachic authority.

A similar idea is mentioned by Rav Shlomo Zalman Auerbach zt”l (Halichos Shlomo, Mo’adim 13:12), who explains that a guest who pays his host to become a partner in the candles does not actually acquire a portion in the candles, but rather earns a portion in the mitzvah. By donating money towards the oil, he is considered as one of the Bnei Ha-Bayis (members of the household), and is automatically included in the lighting of his host.

According to this, the fact that paying money does not effect a full acquisition of the host’s oil has no bearing on a guest’s fulfillment of his mitzvah. The mitzvah is fulfilled not by owning the candles – ownership is not required – but simply by being part of the household.

The Mishnah Berurah (677:3), however, writes explicitly that paying money to one’s host actually buys him a share in the oil (see also Shaar Ha-Tzion 677:9, who mentions making a kinyan, a formal legal acquisition). This is also implied by the Rambam, who writes that the guest shares in the host’s oil (Chanukah 4:11).

Although the Sages decreed that payment alone does not enact a transfer of ownership, it appears that for mitzvah ownership, the Torah level (whereby payment of money transfers ownership) is sufficient (see Rema, Choshen Mishpat 199:3).

According to this opinion, we again have the distinction mentioned above, between one’s own lighting, for which ownership is not required, and fulfilling the mitzvah with somebody else, for which ownership is required.

Using a Torah Acquisition

Even under the assumption that a person must own Chanukah oil, it stands to reason that there is no need for a Torah method of acquisition. By contrast with Torah mitzvos, for rabbinic mitzvos (such as Chanukah) a rabbinic form of acquisition is sufficient, and there is no need for Torah methods of acquisition.

In summary:

  • Some authorities maintain that the oil or candles for use in Chanukah lights must be the halachic property of the person lighting them. Accordingly, one would have to make a full halachic acquisition of the oil or candles.
  • Many Poskim, however, imply that there is no need to ensure halachic ownership of oil and candles.
  • This is only true of oil and candles with which one fulfills one’s own mitzvah of Chanukah lighting. If the actual Mitzvah is fulfilled by somebody else – for instance, for a guest at a hostel and the like, or when the mitzvah is performed by means of an agent – one should ensure that one has a halachic share in the oil or candles.
  • It is sufficient to pay the owner a small sum of money to ensure halachic ownership.

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