accordion to rebbi yossi, the gemara wants to say that after 3 days the מפקיר can be חוזר but m'drobonon they said he cannot. still, as the ran explains, the חזרה does work to the extent that the זוכה is obliged in giving תרומות ומעשרות מדאורייתא.
in other words, there is no הפקר ב"ד going on here because then the זוכה would not have to give trumos umaasros, still he is allowed to keep the hefker! why? isn't he stealing?
(as an aside, very worth while to look into the תורת זרעים on פאה פ"ה מ"א regarding hefker and our sugya)
3 comments:
First of all, the entire exemption of terumos and ma'asros is difficult within tht shita of r' yossi. R' yossi holds that hefker is like a matana in that it goes directly from the giver to the receiver, or the mafkir to the zoche. There isn't any "reshus of hefker" because if there would be even for a moment, it should be mutar to place the food on a rock and be mafkir it by a mudar hana'ah. So, pashtus the concept of hefker just means that the mafkir is revealing that he is willing to give a gift to whoever takes it. It should be like any other gift and be chayev in ma'aser? The answer must be that even though there is no "reshus hefker", there is a "sheim hefker" that exempts from ma'aser (or perhaps even acc. to R' Yossi there is no da'as acheres makneh, so it is different than matana).
Regarding your question, the rabonon basically said that as far as ownership it belongs to the zocheh, but they maintainted the d'oraysa that it never went through a status of hefke and is chayev in ma'aser. I don't think there is any paradox here, because the rabonon always have the right to use hefker beis din whether on a d'rabonon level or d'oraysa level, without saying that it is actually hefker. This may be connected to the discussion regarding the 2 sources of hefker beis din, whether they have a right to just remove it from the original owner's reshus, or even to place it into the receivers reshus.
regarding your 1st point - absolutely! this is the line of the toras zreaim i alluded too. his main point is that there are 2 dinim in hefker - 1- ownerless property as is when a ger dies and 2- a shem hefker. this is why its possible to have hefker only to poor people acc to bais shamai and even acc to beis hillel its possible to do hefker for a whole city (yerushalmi). he further proves his point from r' yossi - as u did.
re ur answer, i hear. let me ask you what will be the din if he marries a woman with that hefker?
i found your answer in the steipler
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