Chayei Sarah 5758 - Rabbi Gedalia Hochberg

"And there was placed in front of him [Eliezer] food to eat and he said I will not eat until I have spoken my words..." (Beraishit 24:33). It would seem from this verse that it was Eliezer's own choice not to immediately partake of his host's food. Had he desired otherwise, it would have been permissible for him, a mere guest, to begin eating Betuel's food, although his host had not yet offered any explicit permission to do so. In fact, the Magen Avraham (Orach Chayim 170:18) cites this incident as a source that a guest needs no explicit permission to begin eating. Once the food has been placed before him, he may assume that his host allows him to commence.

Much discussion has centered upon this " implicit consent" of a host with regard to his guest's food. Surely, he does not oppose his guest's ingestion of this food. What about the guest acquiring ownership of his portion? Can we assume that the generous host holds no opposition to such a notion as well? Does a guest, in fact, gain ownership of his assigned meal? Can the "ba'al habayit," after serving his guest, change his mind and demand of his visitor to relinquish his prized choice. Perhaps it is too late and the guest has already acquired it as his.

A more relevant application of this query - does a guest own his assigned food - regards matzah on Pesach. The gemarah (Succah 35) seems to require that the matzos mitzvah of the first night of Pesach belong to the one consuming them. Does a guest at the Seder have to make a special request that his ba'al habayit grant him ownership of his matzos, or can he rely that - somehow - even without an "official business deal," the matzos will become his? (with regard to matzos, see Sfas Emes to Succah 35; regarding the general issue, see Maharit, Responsa 150).

In this vein, many have referred to the ruling of the Rema (Shulchan Aruch, Even Ha'ezer 28:17): If a guest offers his portion to a woman as "kesef kiddushin" (an item of value by which one marries himself off), they are married. Bearing in mind that one of the basic conditions for a valid marriage is that the ring - or piece of chicken, in our case - belongs to the groom, the Rema is clearly assuming that a guest can acquire ownership of his food: i.e., we assume that a host does not oppose such a conquest on the part of his visitor.

(Question: Does mere "lack of opposition: (אינו מקפיד of the owner suffice to transfer ownership without his express or perhaps, even implicit - active involvement? See Noda Byehuda, Responsa 59, Avnei Meluim Even Haezer 28:45.)

However, even if all is clear from the owners perspective, nonetheless by what means does the guest become the new owner? Ownership can be acquired only by performing one of the accepted "Ma'aseh Kinyan" (acts by which one obtains ownership). Thus, even if we were to assume as the Rema - that a host bears no grudge against an acquiring guest, the guest cannot gain ownership by merely staring at the food in his plate! Even according to Rema, the guest is declared as owner only once the food has entered his hand or mouth - "Kinyan Yad," - acceptable forms of maaseh kinyan.

What about intent, on the part of the guest, to obtain ownership? Generally, one cannot acquire an object without intending to do so. Probably, an ordinary guest has no such intentions when taking his food. As such, even with the host's lack of opposition combined with the guest's ma'aseh kinyan, we seem to be missing a required ingredient to deem the guest as owner - intent?

Maharit (ibid), though, claims that "Kinyan Yad" - the object's presence in one's hand or other body part differs from other acts of ownership - obtainment. Kinyan Yad requires no intent; it works on its own. (The explanation for this exception is beyond the scope of this article. As such, the guest is set for a valid business transaction!)

Although, Maharit's principle is disputed and subject of much controversy (see, Tosfos Bava Basra 54a "adaata," Ketzos Hachoshen 268:2 and others), it would seem that in the Rema's situation of a groom and in our case of Matzah, the guest's acquisition is more easily accomplished. It can be claimed that in such instances where the guest is consciously using his portion in fulfillment of a halachic issue which requires his ownership, the guest, in fact, does have the necessary intent to enact the transaction. If not expressly, then surely implicitly, he wants to acquire the portion, for otherwise his act of marriage or Mitzvah of Matzah, will be invalid.

As such, guests on Pesach night surely need not fuss. Their matzos are no worse than the groom's chicken: The host's lack of opposition, combined with the 'kinyad yad' and natural, implicit intent or even lack of intent of the guest, can do the job on their own. And so is the minhag.