We left off discussing how generally, it is assur to sell peiros sheviis. However, the Rambam writes that a private person (one who is not a seller by profession) may sell a small amount of shemittah produce if they happen to receive extra produce. The money received now has kedushas d’mei sheviis. If one wishes to sell an esrog without the money receiving kedushas d’mei sheviis, they would have to arrange with the buyer to buy the esrog on credit and only pay after Sukkos. This raises a question of lachem, that one must own their esrog in order to be yotzei with it. Today, we will explain the concept of lachem and a possible solution to this problem.
We pasken that the proper kinyan mideoraysa for acquiring something is through the transfer of money. The concept of lachem is deoraysa on the first day, and deoraysa on all seven days of Sukkos in the Beis Hamikdash. Since this is a chiyuv deoraysa, one would assume that it would be most proper to perform a kinyan which works on a deorasya level in order to acquire the esrog. (Kinyanim such as meshicha, pulling, or hagbahah, lifting, are derabanan.)
There is a general discussion amongst the poskim whether a kinyan derabanan works on a deoraysa level, and whether it will work to fulfill this requirement of lachem. One possibility is that the kinyan derabanan does not work on a deoraysa level, and the other possibility is that the power of hefker bais din hefker, which is a deoraysa concept, allows Chazal to confer ownership on an individual even on a deoraysa level. Due to this discussion, the Mishnah Berurah suggests that one pay for their esrog before Sukkos to avoid the issue.
Going back to our shemitah esrog bought on credit, if the purchaser does not pay for the esrog until after Sukkos, we see that they may be missing out on fulfilling lachem on a deoraysa level.
One suggestion is to use kinyan chatzer, which works mideoraysa as well. Kinyan chatzer is that if one has daas to be koneh through bringing an object into the confines of their home, they are able to acquire the object on a deoraysa level. Kinyan chatzer works even if one is renting the property. Thus, the purchaser can take the esrog on credit, avoiding the issue of giving the seller money which has kedushas sheviis, and will still own the esrog mideoraysa, so they fulfill lachem.
To be clear, the concern of giving someone money which has kedushas sheviis is that the halacha is that it is assur to give d’mei sheviis to an am haaretz, out of concern that they will not use the money in the correct halachic way. This concern applies even if the seller is a talmid chochom, because he may not be familiar with all of the halachos of shemitah.
It is also important to note that this issue only applies when paying directly for the esrog, because one is then directly purchasing produce which has kedushas sheviis. This is unlikely, as we learned above that it is generally assur to sell peiros sheviis. Thus, it does not apply when purchasing through havla’ah (“swallowing” money within something larger, i.e., including payment from an esrog within a larger purchase; see previous shiur), nor when purchasing from otzar bais din, as one is paying the costs of the bais din and not the esrog itself.
We will discuss hefsed, that one cannot cause damage to peiros sheviis, in the next shiur, be’ezras Hashem.
Summary
Generally, it is assur to sell peiros sheviis. However, a private person may sell a small amount of produce, such as an extra esrog, if they happen to have extra produce. In order to avoid the money of the purchase receiving kedushas sheviis, the buyer should purchase the esrog on credit, and not pay until after Sukkos. In order for the buyer to acquire the esrog on a deoraysa level, and fulfill the chiyuv of lachem, they should acquire the esrog through kinyan chatzer
