Daf 30a

  • Rav Michael Siev


Introduction to the Study of Talmud
by Rav Michael Siev

Sukka 23 - Daf 30a

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I hope that Pesach was an enjoyable and meaningful experience for all, and that we are ready to begin a new season of learning!

When we last left off, we had begun the third chapter of Masekhet Sukka, which addresses the laws relating to the four species. The mishna taught that a stolen lulav is categorically unfit for the mitzva and the gemara questioned why that should be the case - after all, one needs to be the legal owner of his own lulav only on the first day of the holiday. Why should the stolen lulav be pasul on the remaining days?

The gemara quoted R. Yochanan in the name of R. Shimon ben Yochai, who answered that the reason for such a pesul is that the mitzva fulfilled with such a lulav would be a mitzva ha-ba’ah ba-aveira. A mitzva that comes about only through the violation of an aveira is not considered a mitzva at all. Even if the stolen lulav itself is considered to be a kosher lulav (see the last shiur before Pesach for a discussion of this issue), the mitzva is disqualified. R. Shimon gave two sources for this principle, which (as we discussed last shiur) may give rise to different interpretations of the principle itself.

At this point, the gemara continues to quote a debate regarding the issue of mitzva ha-ba’ah ba-aveira. We resume in the middle of daf 30a, 9 lines from the end of the short lines:  

It was stated also,

R. Ami said: A dry (lulav) is invalid because it is not beautiful, a stolen (lulav) is invalid because it is a mitzva ha-ba’ah ba-aveira.

And he disagrees with R. Yitzchak.

For R. Yitzchak bar Nachmeni said in the name of Shmuel: We did not learn (that a stolen lulav is invalid) except on the first day of yom tov,

but on the second day, since he fulfills (his obligation) with a borrowed (lulav), he fulfills also with a stolen (lulav).

R. Nachman bar Yitzchak challenged: "A lulav that is stolen or dry is invalid." But a borrowed (lulav) is valid.

When? If you say on the first day of yom tov, but it says "lakhem" - from that which is yours - and this is not his.

Is it not (referring to) the second day of yom tov? And it says a stolen (lulav) is invalid!

Rava said: Really it is the first day of yom tov, and it teaches (in the format of) "this is not necessary":

It is not necessary (to teach that a) borrowed (lulav is invalid) - for it is not his. But stolen, say that a standard stealing has "despair" of the owners, and it is like his (=the property of the thief)

It comes to teach us.

אתמר נמי,

אמר רבי אמי: יבש פסול מפני שאין הדר, גזול פסול משום דהוה ליה מצוה הבאה בעבירה.

ופליגא דר' יצחק.

דא"ר (=דאמר רבייצחק בר נחמני אמר שמואל: לא שנו אלא ביום טוב ראשון,

אבל ביום טוב שני, מתוך שיוצא בשאול - יוצא נמי בגזול.

מתיב רב נחמן בר יצחק: לולב הגזול והיבש פסול. הא שאול - כשר.

אימת? אילימא ביום טוב ראשון - הא כתיב לכם - משלכם, והאי לאו דידיה הוא.

אלא לאו - ביום טוב שני, וקתני גזול פסול!

(רבא אמר) +מסורת הש"ס: [אמר רבא]+ לעולם ביום טוב ראשון, ולא מיבעיא קאמר:

לא מיבעיא שאול - דלאו דידיה הוא. אבל גזול, אימא סתם גזילה יאוש בעלים הוא, וכדידיה דמי -

קא משמע לן.   

In this section, the gemara begins by quoting R. Ami, who concurred with R. Yochanan's explanation that a stolen lulav is invalid for the remainder of Sukkot (i.e., the final six days) because of the principle of mitzva ha-ba’ah ba-aveira. R. Yitzchak, however, quotes Shmuel who disagrees. In his view, the only potential problem with a stolen lulav is that the thief does not legally own the lulav. This is a problem on the first day, when one must own the four species that one uses to fulfill the mitzva. However, on the remaining days one may use a lulav that one does not legally own - such as a borrowed lulav. Therefore, one may also fulfill the mitzva with a stolen lulav.

R. Nachman bar Yitzchak challenges Shmuel's claim based on the wording of our mishna (on 29b). The mishna's opening statement teaches that "a lulav that is stolen or dry is invalid." From the fact that the mishna invalidates a stolen lulav but does not address the status of a borrowed lulav, we can infer that a borrowed lulav is valid. After all, it seems more reasonable to disqualify a stolen lulav than a borrowed one, so if they were equally unacceptable, the mishna would teach us the more novel case, namely that of the borrowed lulav. Therefore, the mishna must refer to a situation in which only a stolen lulav is invalid, but a borrowed one is acceptable. 

That having been said, we can ascertain which circumstance the mishna is addressing. It must not be referring to the first day of Sukkot, for on that day even a borrowed lulav is pasul. As we have discussed in previous shiurim, this is derived from the word "lakhem" in the verse that commands us to take the four species on Sukkot. The word lakhem (lit. for yourselves) is understood to imply mi-shelakhem, "from that which is yours," i.e. that one must own his four species. This requirement disqualifies a borrowed lulav. We are forced to conclude that the mishna refers to the second day (and on) of Sukkot, when the requirement of lakhem does not apply. And, the mishna clearly sates that a stolen lulav is invalid. Thus, a stolen lulav must be pasul for the duration of Sukkot, and not just on the first day as Shmuel claimed!

Rava responds to R. Nachman bar Yitzchak's challenge. The proof that our mishna refers even to the latter days of Sukkot, and thus disqualifies a stolen lulav for the entire holiday, was based on the assumption that a stolen lulav is more likely to be invalid that a borrowed one. Therefore, if the mishna disqualifies only a stolen lulav, it must be that a borrowed lulav is acceptable - which is only the case on the latter days of Sukkot. Rava rejects this premise by asserting that a stolen lulav is actually more likely to be acceptable for the mitzva than a borrowed lulav. Thus, when the mishna teaches that a stolen lulav is invalid, we cannot infer that a borrowed lulav is valid. Rather, the mishna comes to teach that even a stolen lulav is invalid - and a borrowed lulav is certainly invalid as well. Since the case of the borrowed lulav is the more obvious case, it was not necessary for the mishna to mention it. The mishna teaches that a stolen lulav is pasul, and we can conclude on our own that a borrowed lulav is pasul as well.

Why should a stolen lulav be more likely to be acceptable than a borrowed lulav? Rava explains that this is based on the concept of "despair" (ye'ush) that we touched upon last week. Once the previous owner despairs of recovering a lost or stolen object, some opinions hold that the object comes under the legal jurisdiction of the person who has possession of the object. Clearly, there is no ye'ush in a case of a borrowed lulav. But, in a case of theft, we can assume that there is always ye'ush.

Why are we so sure that there is ye'ush in a case of theft? Rashi here (s.v. ye'ush be'alim hu) explains that this assertion is based on the technical definition of "gezel." Halakha recognizes two different types of stealing - gezeila and geneiva. Gezeila refers to a case of forcible confiscation of property. If one is mugged, that is a case of gezeila. Geneiva is when the thief sneakily makes off with another person's property, while avoiding detection. Our mishna refers to a "lulav ha-gazul." If we are to take this language literally, it seems that we are dealing with a case of gezeila. In such a case, since the robber was powerful enough to forcibly take the lulav to begin with, we can assume that the victim does not dare to attempt to recover his lost property, and there is ye'ush - even if we do not actually hear the victim make a statement to that effect.

If we assume that there is ye'ush, and that ye'ush is enough to allow the robber to acquire ownership over the object - we can conclude that the robber may use this lulav to fulfill his mitzva, even on the first day, when the requirement of lakhem applies. The mishna must therefore inform us that this is not a correct conclusion. However, since the mishna's ruling refers specifically to the first day, we cannot reject Shmuel's claim that the stolen lulav is acceptable on the remaining days of Sukkot.

Rava explains clearly why one would have thought that a stolen lulav is valid even on the first day, and concludes that the mishna had to teach that this is not correct.

Why is it not correct? What are the different ways this apparently mistaken conclusion can be rejected?

Check Rashi - what is his explanation?

The assertion that a stolen lulav might be acceptable for use was based on a combination of assumptions:

1) We can assume that there has been ye'ush.

2) Therefore, the robber legally owns the lulav.

3) As long as the robber legally owns the lulav, he can use it for the mitzva. There are no other halakhic impediments standing in his way.

If any of these three assumptions are to be rejected, the conclusion will fall. Thus, we have three possibilities for explaining the mishna. Rashi (s.v. קמ"ל) explains that the mishna takes on the first assumption. We cannot assume that original owner of the lulav has despaired of recovering his stolen property. It is not true that "סתם גזילה יאוש בעלים הוא," "a standard stealing has despair of the owners." Even though the victim was powerless to stop the robber from confiscating his lulav, that does not mean that he has given up hope. He may intend to call the police and have this criminal arrested! Since we do not know that the original owner has despaired of recovering the lulav, we must assume that it does not legally belong to the robber - and he is therefore unable to use it for the mitzva. This explanation works well with the language of Rava's presentation. The first assumption is the only one mentioned explicitly in Rava's words, and it may therefore be reasonable to assume that if the conclusion is rejected, it is because this premise does not hold water.

One could alternatively explain that the mishna rejects the second assumption. Even if we are to accept the idea that, in a case of gezeila, we can assume that the victim has despaired of recovering his lost object, that does not necessarily mean that it legally belongs to the robber. This is the subject of dispute in Masekhet Bava Kama, and the gemara will shortly present a discussion that relates to this issue.

A third possibility is that the mishna rejects the final assumption mentioned above. Even if the robber is now the legal owner of this lulav, he may not be able to use it for the mitzva. Why not? Perhaps because of the concept of mitzva ha-ba’ah ba-aveira!

There is a clear difficulty with this explanation. Rava is attempting to explain the mishna according to the view of Shmuel, who holds that a stolen lulav is acceptable on the second day - apparently not taking mitzva ha-ba’ah ba-aveira into account. It seems as though Shmuel does not recognize this concept at all!

However, we may be able to explain Shmuel's view differently. Remember that Shmuel claims that on the second day, since one can fulfill the mitzva with a borrowed lulav, one can also fulfill the mitzva with a stolen lulav. Why did he present his opinion in this fashion, instead of simply saying that the lulav is kosher on day two? What did he intend to add with the comparison to a borrowed lulav? We mentioned one understanding above, but Tosafot (s.v. mitokh) seem to take a different approach:

Since he fulfills (his obligation) with a borrowed (lulav), he fulfills with a stolen (lulav) - here specifically, because it is de-rabanan, he is not concerned with mitzva ha-ba’ah ba-aveira.

We have discussed in earlier shiurim the fact that the Torah only mandates the mitzva of lulav on the first day of Sukkot - after that, it is a mitzva de-rabanan. According to Tosafot, Shmuel does recognize the concept of mitzva ha-ba’ah ba-aveira - but only with regard to Biblically mandated mitzvot. When Shmuel mentions that one can fulfill the obligation on the second day with a borrowed lulav, he intends to demonstrate that the mitzva of lulav on that day is not the Torah-mandated mitzva but rather the rabbinically-mandated one, as reflected by the leniency regarding a borrowed lulav. Therefore, the mitzva is not disqualified due to its status as a mitzva ha-ba’ah ba-aveira. The mishna, though, addresses the case of a stolen lulav on the first day of Sukkot - in such a case, since the mitzva is mi-de’oraita, even Shmuel agrees that it is disqualified due to it status as a mitzva ha-ba’ah ba-aveira.

According to this approach, all the opinions cited in the gemara agree that the reason the mishna invalidates a stolen lulav is because of mitzva ha-ba’ah ba-aveira - the disagreement is only whether our mishna addresses the first day or the entirety of Sukkot