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Purchasing Mitzvah Items with Meshichah

 

The Need for Meshichah of the Pesach Offering

Concerning other mitzvos, the Torah does not mention the requirement to buy the required mitzvah item. Although the Four Species need to be in the holder’s possession, the Torah does not mention their purchase – and the same is true of tzitis and other mitzvos. Why then is the purchase mentioned specifically with regard to the Pesach offering?

The Chasam Sofer writes (in his derashos) that we derive from here that it is best to purchase all mitzvah items for payment, and not to receive them for free.

However, a number of commentaries (Panim Yafos; Shut Toras Chesed 22; Merkeves Ha-Mishnah on Mechilta 11:2) write that there was a special and specific need for an acquisition of the Pesach offering. The reason is that the Egyptians worshiped sheep as their idols, which disqualified the animals for sacrifice. Therefore it was necessary to make a formal purchase from the Egyptians, for when a non-Jew sells his idolatry he effectively renounces its status as a deity (a person doesn’t sell his god), and it is therefore no longer prohibited.

The Chasam Sofer (Yoreh De’ah 235) raises the problem that after an animal has already been worshiped, bittul (annulment of the idol by means of a sale) does not allow the animal to be used as an offering, because it remains disgraced. He suggests that since the Pesach offering did not involve sprinkling its blood on an altar, this principle does not apply.

However, according to the other authorities mentioned above, it appears that an animal that has been worshiped can be purified by its sale.

When moveable (non-real property) items are purchased in a conventional situation, the purchaser gives money to the seller and the purchaser takes the object from the seller.  The Mishnah (Kiddushin 26a) states that one acquires ownership of such items by taking the object (meshichah), and not by virtue of his payment.

Rav Yochanan and Reish Lakish (Bava Metzia 46b) disagree over whether this rule is of Biblical or rabbinic origin.  Rav Yochanan argues that according to the Bible, payment establishes ownership, but the Rabbis instituted that one does not acquire the item until meshichah is performed. The reason for this is concern that the seller, having received payment, will be negligent in looking after the item, resulting in a loss for the buyer. Reish Lakish, however, asserts that meshichah is sufficient both on a Biblical and rabbinic level.

The halachah follows the opinion of Rabbi Yochanan (Rambam, Mechirah 3:5; Shulchan Aruch, Choshen Mishpat 198:1).

This raises a problem concerning the acquisition of the Pesach offering, which was acquired by means of meshichah from the Egyptian seller. If meshichah is only a rabbinic form of acquisition, how could it be used for the Biblical Pesach offering?

In addressing this question, the Rosh David (of the Chida, Parashas Bo) writes that the Torah in fact mandated two forms of acquisition. On the one hand, the Israelites were instructed to take the Pesach offering (mishchu), but they were also directed to purchase it (kechu), meaning a monetary acquisition. Payment is a Torah acquisition, yet it is not sufficient (because of the rabbinic decree), and therefore the instruction included both payment and meshichah.

Purchase from a Non-Jew

Interpreting a Torah instruction based on a later rabbinic decree is strained, and an alternative explanation can be suggested based on the difference between the type of acquisition which applies to Jews and that which applies to non-Jews.

The Gemara (Bechoros 13a) points out that whatever acquisition is effective at a Biblical level between two Jews, the opposite form is effective for a transaction between a Jew and a non-Jew. Thus, according to Rav Yochanan, since at the Torah level giving money is the correct form of acquisition between a Jew and another Jew, taking hold of the item is the appropriate form for a sale between a Jew and a non-Jew.

Based on this distinction, we can understand that the Israelites were instructed specifically to take the Pesach offering, because this is the appropriate act of acquisition between a Jew and a non-Jew.

Buying Mitzvah Items with Meshichah

The Chida (loc. cit.) suggests an alternative explanation for the above passage. The Machaneh Efraim (Meshichah 2) rules that when a person wishes to purchase a mitzvah item that must be his to fulfill the mitzvah – such as the Four Species or Matzah for Pesach – he should not rely on meshichah alone, for this is a rabbinic acquisition. Rather, he should ensure that he pays for the item before Yom Tov, so that it should be his by means of a Torah means of acquisition.

This, explains the Chida, is the reason why the Israelites did not rely on meshicah alone, but ensured that the Pesach offering was purchased even with money.

A number of authorities cite the ruling of the Machaneh Efraim, and recommend that mitzvah items should be paid for in advance of Yom Tov (see Mishnah Berurah 658:10).

The Mishnah Berurah adds that an alternative to payment for the Four Species before Yom Tov is that they should be brought into the buyer’s home, for once they are there, the residence also effects a Torah acquisition. However, some authorities dispute this, and argue that bringing an item home is no more effective an acquisition that taking it to oneself (meshichah; see Ketzos Ha-Choshen 198:1).

In order to fulfill all opinions, it is therefore best to pay for the Four Species before Yom Tov.

Payment Without Meshichah

Now let us discuss the opposite scenario: What happens when a person pays for his mitzvah item, but fails to perform an act of taking them in (meshichah)? What is the status of the Esrog that has been purchased with money, where no act of meshichah was performed?

An example of this is where a seller has promised the buyer that he will place the Esrog in a certain place in shul, before the advent of Yom Tov. The seller keeps his promise, and places the Esrog in shul so that the buyer finds it upon arriving in shul on Yom Tov morning. Can the buyer use the Esrog for the mitzvah, or does he still need to perform an act of acquisition by means of meshichah (will will briefly discuss below whether such an act can be performed on Yom Tov).

A partial answer to this question can be based on a deeper understanding of the rabbinic enactment whereby the act of meshichah was required. Does this enactment imply an annulment of the power of money as a purchasing agent – the handover of money no longer effects the purchase – or does it mean that money continues to be effective on a Torah level, yet on a rabbinic level the purchase is incomplete until meshichah is performed?

If we follow the first understanding, it is certain that the Esrog cannot be used until a legally valid form of acquisition is performed. However, if we follow the second understanding, then at least on a Torah level, the Esrog belongs to the buyer, and can indeed be used (though on a rabbinic level meshichah is still required).

The fact that for a number of purposes the purchasing power of money is retained (as ruled by the Shulchan Aruch), indicates that the purchasing power of money was not removed, but only that the Sages enacted that money is not enough and an additional meshichah is needed even after money is paid (though meshichah alone constitutes a valid acquisition). In some instances the Sages did not require meshichah, and left the original form of acquisition – payment of money – in place as a full acquisition.

Shut Vaya’an Yosef (382, sec. 8) has pointed out that this indicates that the Sages never actually voided the power of money to make a purchase, and it follows that on a Torah level, the Esrog indeed belongs to the buyer, so that the Torah mitzvah will be fulfilled. On a rabbinic level, however, meshichah is still required.

Acquisitions for Mitzvah Purposes

Yet, it appears that in the case of the Esrog that was paid for but not taken, payment effects a full acquisition – even on a rabbinic level – and there is no need for meshichah to be performed.

The reason for this is that one of the places where the Sages left the purchasing power of money in place is for the purpose of a mitzvah. The Gemara (Chullin 83a) explains that on four occasions during the year – when there is a pressing need related to a mitzvah feast –  meat can be purchased with money alone, without meshichah.

This halachah is ruled by the Shulchan Aruch (199:3), to which the Rema adds that the same principle applies to the purchase of wine for Kiddush, “for in all such cases the Sages retained Torah law” – and the payment of money is sufficient to complete the purchase. The Ketzos Ha-Choshen (2) adds that the same applies to somebody who pays for his Shabbos challos: Because this is a mitzvah item required for Shabbos, the purchase is completed with money.

It follows that the same idea is in effect with regard to buying an Esrog: Because it is a mitzvah item, and required for Yom Tov, the payment of money is sufficient, and there is no requirement for meshichah. This, indeed, is the ruling given by the Mishnah Berurah (Biur Halachah, 656, citing the Peri Megadim).

Thus, when the buyer finds his Esrog in shul, there is no need  for meshichah, and the original purchase with money is sufficient.

This is also the reason why, in purchasing a share in the Shabbos candles (by a guest), the Shulchan Aruch (263:7) recommends giving a coin to the homeowner. Although for other matters the correct acquisition is meshichah, for the mitzvah of Shabbos candles the optimal form of acquisition is specifically money (see Mishnah Berurah 677:3, and Shemiras Shabbos Kehilchasah 45, note 23).

 

In addition to the above, there is room to debate whether or not it is permitted to actually make the meshichah on Shabbos. The Mishnah Berurah (323:34) rules that it is permitted to make an acquisition for the purpose of a mitzvah on Shabbos, and the same applies to Yom Tov. However, the Magen Avraham (306:15) rules that one must not do so, and only a gift with a condition to give the item back is permitted.

We leave the discussion of this subject for a future opportunity.

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