DOES HEKDESH OR A BEIS HA'KENESES ACQUIRE THROUGH CHATZER? [Chatzer :Kinyan :Hekdesh]
(Beraisa): One may not benefit from Kodshim of Nochrim. One who benefited did not transgress Me'ilah.
One may not benefit from them mid'Rabanan. We learn that Me'ilah does not apply to them from a Gezerah Shavah "Chet-Chet" from Terumah. Regarding Terumah it says "Benei Yisrael."
Bava Basra 79a (Mishnah - R. Yehudah): If one was Makdish an empty pit, wasteheap or dovecote, and it became full of water, manure or doves, Me'ilah applies to it, but not to what came later.
R. Yosi says, if one was Makdish a field or a tree, Me'ilah applies to it and what grows, for what grows is Hekdesh.
Rebbi taught that R. Yosi agrees with R. Yehudah's about a pit and dovecote. R. Yosi argues only about a field and tree.
Shevuos 24b (Mishnah): One can be liable four Korbanos Chatas and an Asham for eating an olive's worth. The case is, a Tamei person ate Chelev that was Nosar from Kodshim, on Yom Kipur.
Question: According to Rava, we can find a fifth Chatas. He swore 'I will not eat figs or Chelev.' Since the oath applies to figs, it applies also to Chelev!
Answer: The Tana only lists prohibitions that cannot be annulled.
Question: One can annul making the animal a Korban!
Answer: We discuss a Bechor (a firstborn. It is a Korban automatically.)
Bava Metzia 21b (Beraisa): If one finds coins in a Beis ha'Keneses, Beis Medrash... he may keep them, because the owner despairs.
Rambam (Hilchos Me'ilah 5:6): Me'ilah applies to things that grow from Hekdesh. If one was Makdish a field and it grew herbage, or a tree and it produced Peros, Me'ilah applies to. However, if one was Makdish an empty pit, wasteheap or dovecote, and it became full of water, manure or doves, since they do not grow from Hekdesh, Me'ilah does not apply to them.
Tosfos (79a DH v'Ein): A Chatzer acquires like a Yad, and Hekdesh has no Yad.
Rashbam (DH Hachi): Reshus of Hekdesh is not strong enough to acquire. Regarding a person, we learn that his Chatzer acquires for him from "v'Im Himatzei Timatzei v'Yado."
Ramban (79a v'Ha): The Rashbam explains that Me'ilah does not apply to what is in them because Hekdesh has no Chatzer, for Chatzer works due to Yad and Hekdesh has no Yad. One could say that it acquires, but Me'ilah does not apply to what it acquires.
Ketzos ha'Choshen (200:1 DH veha'Ramban): The Ramban holds that Me'ilah applies to what a person was Makdish, but not to what Hekdesh acquires by itself. Tana'im (Zevachim 45a) argue about whether Me'ilah applies to Kodshei Nochrim, even though they are surely Hekdesh. All agree that there is no Me'ilah when no one was Makdish the Hekdesh.
Nesivos ha'Mishpat (ibid. DH ul'Inyan Iy): The Ramban learns from "Kodshei Benei Yisrael" that Me'ilah does not apply to to Kodshei Nochrim (Zevachim 45a). Tosfos (45b DH Dumya) holds that Me'ilah applies to Kodshei Bedek ha'Bayis of Nochrim, but all agree that there is no Me'ilah when no person was Makdish. We infer that the Ramban holds that there is a Yad to Hekdesh.
R. Akiva Eiger (Me'ilah ): Tana'im argue about whether Me'ilah applies to what grows from Hekdesh. The Ramban derives that all agree that there is no Me'ilah in what Hekdesh acquires if it does not grow from Hekdesh.
Question (Ketzos ha'Choshen DH Emnam): Shevuos 24b connotes that one can annul making an animal a Korban, unless it was a Bechor. According to the Ramban, we could have said that we discuss any Korban. After slaughter, the Azarah (a Chatzer of Hekdesh) acquires it for Hekdesh, and afterwards one cannot annul the Hekdesh, just like one cannot annul Hekdesh after the Gizbar received it! R. Betzalel Ashkenazi (Teshuvah 14, brought in Shach 255:6) says that one can annul Hekdesh only because speech can annul speech. After it came to the Gizbar's hand, Hekdesh acquired through Meshichah. Hekdesh is no weaker than a person. If a person acquired through Meshichah, the seller cannot retract. There is Me'ilah, for the Hekdesh was through a person! This seems to be a proof for Tosfos and the Rashbam.
Answer (Nesivos ha'Mishpat ibid. DH Gam): Surely, to stop the Makdish from retracting, Hekdesh is like one who acquires for a creditor when this harms others. Zechiyah does not work in such a case (Gitin 11b). We also require Shlichus of the owner, and to say 'acquire for'. When it does not harm others, and Shlichus of the owner does not apply, surely Hekdesh has a Chatzer. The Ketzos should have asked better from the Shach, who says that after Meshichah of the Gizbar, one cannot annul Hekdesh. Likewise, once the Korban was given to Kohanim, who are Hash-m's Shluchim, and they slaughtered it and did Zerikah (threw the blood), why can one annul? However, Tosfos (Krisos 13b DH Arba) says that one cannot annul after Shechitah and Zerikah. Birkas ha'Zevach asked from Shevuos 24b, which connotes that one can still annul. Really, the Gemara means that we do not discuss something that sometimes can be annulled. One can annul Hekdesh before Shechitah. We list only things that ccan never be annulled. In Krisos, it discusses things that can no longer be annulled, and excluded only Shevu'ah, which one can always annul.
Magen Avraham (154:23): The Agudah says that one who finds something in a Beis ha'Keneses acquires it. We do not say that Chatzer Beis ha'Keneses acquires for Hekdesh. This is because a Chatzer acquires like a Yad, and Hekdesh has no Yad.
Ketzos ha'Choshen (200:1): This is like Tosfos. We learn from Bava Basra 79a. The Rashbam (DH Hachi) explains that Reshus of Hekdesh is not strong enough to acquire. Regarding a person, we learn that his Chatzer acquires for him from "v'Im Himatzei Timatzei v'Yado." Similarly, Chatzer Beis ha'Keneses does not acquire for Hekdesh. The Ramban holds that Hekdesh acquires (just there is no Me'ilah). However, in Shekalim (7:2) we say that money found in Har ha'Bayis is Chulin. The Yerushalmi connotes that it is full Chulin. Why doesn't Hekdesh acquire through Chatzer? The Rosh (Bava Metzia 2:9), Nimukei Yosef (14a) and Magid Mishneh say that a Chatzer does not acquire what entered it before despair, for Chatzer is no better than Yad. One does not acquire what came to his hand b'Isur, even if the owner despaired afterwards. Even though people constantly check their wallets, he did not know when it fell. Surely this applies also to money found in a Beis ha'Keneses. However, other Rishonim answer that a Chatzer acquires only what is normal to come, for the owner intends only for this. The Rema (CM 268:3) holds like this. Regarding Hekdesh, without intent is like a person with intent (Bava Kama 20b). The Rishonim who hold that a Chatzer acquires (before despair, but) only what is normal to come there, like the Rambam (Hilchos Gezeilah 16:8) must hold like Tosfos and the Rashbam that Hekdesh has no Chatzer.
Ketzos ha'Choshen: The Agudah's equates Beis ha'Keneses to Hekdesh. I say that it is not Hekdesh, rather, it is like a joint Chatzer. The Rivash (205, brought in Beis Shmuel 30:9) says that one's four Amos acquire for him in a Beis ha'Keneses, for it is a joint Chatzer. A joint Chatzer acquires for the owners (CM 260:4). In Bava Metzia (21b), we say that one keeps coins that he finds in a Beis ha'Keneses or Beis Medrash, and the Hava Amina was that it refers to a Beis ha'Keneses or Beis Medrash of Yisre'elim. Since the owners are people, we can say that the joint Chatzer does not acquire before despair,*or* it acquires only what is expected to come.
Nesivos ha'Mishpat (ibid., DH u'Mah): Even though a Beis ha'Keneses is like a joint Chatzer, the Agudah needed to say that Hekdesh has no Yad, since the congregation made the building Hekdesh for the needs of the Beis ha'Keneses, it is no worse than a Chatzer rented to Hekdesh. A tenant acquires with a rented Chatzer. The Gizbar would like to acquire for Hekdesh, and Hash-m is aware, therefore, the Agudah needed to say that the Beis ha'Keneses does not acquire because Hekdesh has no Yad.