Q&A: Acquisition in Essence and in Practice
Acquisition in Essence and in Practice
Question
The Machaneh Ephraim asks about Maimonides: on the one hand, regarding the lulav (chapter 8, Jewish law 10), he rules that a rabbinic acquisition is not effective for a Torah-level requirement; yet regarding misuse of consecrated property (Me’ilah 6:4), it is clear from Maimonides that a rabbinic acquisition is effective on the Torah level.
And the Machaneh Ephraim answers that with regard to misuse of consecrated property, once it has been transferred from one domain to another—even through a rabbinic acquisition—it has already left the domain of the Temple treasury.
And in explaining his distinction, I read from Rabbi Ariav Ozer that even if a rabbinic acquisition is not effective on the Torah level, that is only with respect to ownership “in essence”: from the Torah’s perspective the item is not his, and it is not called “yours.” But when the issue concerns the “practical” aspect, then even on the Torah level we consider the object to have passed into another domain. Therefore, regarding misuse of consecrated property, where the determining factor is the practical effect of removing it from consecrated status, even a rabbinic transfer counts as a Torah-level transfer, since in the end the Torah said to heed the Sages, and they said that pulling an item effects acquisition. So for purposes of practical legal conduct, even according to the Torah the object has passed into another domain. But when we are discussing ownership in essence, there we indeed say that according to the Torah the ownership has not changed. Therefore, regarding lulav, we require “yours” in the essential sense.
I didn’t really understand the difference between “in essence” and “in practice.” Usually the distinction is between “potentially” and “actually,” no?
I’d be happy for a clarification.
Answer
I assume he means to distinguish between the reality of ownership—who is registered in Heaven as the owner, or in my terminology: who has the legal status of ownership—as opposed to actual practical control.
Like the discussion regarding the ruling “the burden of proof rests on the one who seeks to extract property from another,” in favor of the current possessor: does he have the legal status of ownership, or only practical ownership (a right of use)?
One can perhaps speak in terms of domain: in whose domain the item is found. As with a robber, where neither he nor the owner can consecrate the item—this one because it is not his, and that one because it is not in his domain. We see from this that regarding misuse of consecrated property, domain alone is enough to determine the status.