Lev stood patiently at Hakhel on Succos morning, watching everyone fulfill the mitzvah of lulav and esrog. Unable to afford his own set, he planned to borrow someone else’s.

When Mr. Freund finished waving his lulav, Lev asked him, “Can I borrow your lulav for the mitzvah?”

“You can’t really borrow it, since the lulav and esrog must belong to you in the Beis Hamikdash the entire week, according to many authorities,” replied Mr. Freund.  “However, I’m happy to give them to you as a gift with the stipulation that you return them, matanah al menas l’hachzir.”

“Great; I just have to make the brachah and do the mitzvah,” Lev thanked him. “I’ll be happy to return the lulav and esrog to you afterwards.”

Mr. Freund handed his lulav and esrog to Lev, who made the brachos, turned the esrog right-side up, and began waving the lulav.

Suddenly the huge throngs congregating to hear the special Torah reading jostled Lev, knocking the esrog out of his hand! It fell to the ground and a piece broke off.

“I’m sorry about your esrog,” Lev apologized to Mr. Freund. “I’ll pay you whatever the esrog cost.”

“That’s not the point,” Mr. Freund replied. “What am I going to do for the rest of the chag? I don’t know whether I can still find a good esrog to buy.”

“Maybe I can get you another esrog?” suggested Lev.

Meanwhile, Lev began to wonder: “Since the esrog was given to me as a gift with a stipulation that I can no longer honor, did I fulfill the mitzvah?”

Lev approached Rabbi Dayan. “Mr. Freund gave me his lulav and esrog as a matana al menas l’hachzir, but the esrog got damaged,” he related. “Did I fulfill the mitzvah? What if I pay for it or give him another esrog?”

“If the esrog would be intact, you cannot return money instead,” replied Rabbi Dayan. “Even when it is no longer intact, the Rosh (Succah 3:30) cites the Baal HaItur that the owner needs the esrog for the remaining days. Therefore — unlike other items, where replacing a ruined item with money is acceptable — if the recipient did not return the esrog as stipulated, the conditional gift is nullified, and the recipient did not fulfill the mitzvah!” (Rema, Ketzos and Nesivos C.M. 241:7.)

“The Shulchan Aruch (O.C. 658:4) rules in accordance with the Rosh,” continued Rabbi Dayan. “He adds that even if the person cannot return the esrog because of oness (circumstances beyond his control) he did not fulfill the mitzvah.”

“So I have to do the mitzvah again with another lulav and esrog if I can’t return the esrog intact?” asked Lev.

“It seems so, but there are some exceptions,” answered Rabbi Dayan. “The Bi’ur Halachah (s.v. “afilu…”) writes that if the owner has another esrog with which to fulfill the mitzvah, the recipient may return the value of the borrowed esrog when the borrowed esrog itself is no longer intact.”

“Then how about returning a different esrog?” asked Lev. “Would that be good enough?”

“Some authorities do not consider this sufficient,” replied Rabbi Dayan. “However, the Bi’ur Halachah maintains that if you return a kosher esrog of equivalent quality, you fulfill your stipulation. He also takes into consideration the lenient position of some authorities — against the Rosh — that even regarding an esrog one can fulfill the stipulation by returning its value in money when the esrog is not intact. Additionally, if the item was ruined through oness some maintain that the recipient does not have to pay (see C.M. 241:8.) Thus, it is possible that you might fulfill the stipulation when returning a comparable esrog.”

Q: How should a majority ruling of beis din be issued to the litigants?

A: The Torah teaches us that the ruling of beis din follows the majority. The ruling is the product of all three dayanim, even if one dissented from the majority opinion.

Therefore, the ruling is made in the name of all three dayanim. If the ruling is issued in writing, all three are expected to sign it, even if one dayan dissented. It is permitted to indicate, though, that the ruling is based on the majority opinion (C.M. 19:1-2; Pischei Teshuvah 19:3).

A dayan who dissented should not express his personal opinion in contrast to the joint ruling. This is considered lashon hara about the other two dayanim towards the litigants. If the reasons for the ruling are written, and the dissenting dayan also writes his reasons, it is preferable to omit the names of the respective dayanim. However, in certain courts the practice is to indicate the name of each dayan.