Q&A: Torah-Level Acquisition vs. Customary Acquisition
Torah-Level Acquisition vs. Customary Acquisition
Question
Have a good week, Rabbi,
From the Torah’s law, a minor can acquire but cannot transfer ownership to others. But in today’s reality, it is customary for a minor to be able to transfer ownership to others. For example, sometimes 12-year-old children sell willow branches. Maimonides writes as follows:
A person does not fulfill his obligation on the first festival day of the holiday with his fellow’s lulav if he merely borrowed it from him, unless it was given to him as a gift. If he gave it to him on condition that it be returned, he fulfills his obligation with it and returns it, for a gift given on condition of return is considered a gift. But if he did not return it, he has not fulfilled his obligation, since it turns out to be like stolen property. And one may not give it to a minor, because a minor acquires but does not transfer ownership to others by Torah law, and thus if he returns it to him, it does not revert back. And this applies both to the lulav and to each and every one of the four species in it—if even one of them was borrowed, one does not fulfill the obligation with it on the first festival day.
In today’s reality, is a minor’s acquisition effective with respect to transferring ownership of the four species?
With blessings,
Answer
I didn’t understand why this is connected specifically to our times.
The acquisition from the minor does not seem problematic to me, because the willow branches do not belong to the minor but to the adult who sent him. The buyer performs an act of acquisition on the buyer’s side, and that is effective by Torah law. And if the minor himself acquired the willow branches from ownerless property, then his acquisition is rabbinic, and therefore it is also effective to acquire them from him.
Incidentally, there is a dispute whether a minor’s acquisition when someone else intentionally transfers ownership to him is effective by Torah law.
Discussion on Answer
Commercial custom is effective by Torah law (aside from a few implausible interpretations). But some medieval authorities (Rishonim) wrote that commercial custom is effective only when the act is different, but that commercial custom does not help transfer ownership of something that does not yet exist, for example. According to those views, it is reasonable that a minor’s acquisition would not be effective.
I understand. If, theoretically, there were a situation in which the customary acquisition used nowadays did not conform to the halakhic laws of acquisition, would there be a problem acquiring the four species in that way? Or, as long as it is accepted in society that acquisition method X is effective in monetary law, is it then also effective by Torah law?