Disqualifications of the Lulav on the First Day of Sukkot and on all Seven Days of the Festival
Dedicated by Aaron and Tzipora Ross and family in memory of our grandparents
Shmuel Nachamu ben Shlomo Moshe HaKohen, Chaya bat Yitzchak Dovid, and Shimon ben Moshe,
whose yahrzeits are this week.
SHIUR #11: DISQUALIFICATIONS OF THE LULAV ON THE FIRST DAY OF SUKKOT AND ON ALL SEVEN DAYS OF THE FESTIVAL
Rav Shmuel Shimoni
THE POSITION OF RASHI AND TOSAFOT
The Gemara, in the opening passage of our chapter, states:
"A lulav that is stolen or dry is unfit."… It states categorically, making no distinction between the first day of the festival and the second day of the festival. Granted yavesh (dry) – we require "hadar" (beauty) and it is lacking. But gazul (stolen) – granted on the first day, it is written "lakhem" (for yourselves) – belonging to you. But on the second day of the festival, why not? Rabbi Yochanan said in the name of Rabbi Shimon ben Yochai: Because it is a mitzva performed through the commission of a transgression (mitzva ha-ba'a be-aveira).
The Gemara assumes that the disqualification stemming from a lack of hadar applies all seven days of the festival, whereas the law of lakhem, which disqualifies a borrowed lulav, applies only on the first day. It is not clear from the Gemara whether it is dealing with the seven-day Torah mitzva in the Temple, or with Rabban Yochanan ben Zakkai's seven-day enactment in the provinces. Rashi understands as something obvious that any disqualification that applies on the first day applies to every Torah obligation of lulav, and that the leniencies pertain only to the rabbinic enactment:
"Making no distinction between the first day of the festival" – when the obligation is by Torah law, and the second day of the festival – when taking the lulav is only by rabbinic enactment, for the verse states: "On the first day." Granted yavesh – the disqualification applies even to the rabbinic enactment; since it is a mitzva meant to serve as a remembrance of the Temple, we require hiddur mitzva. [But gazul] why not – based on what do you disqualify it?
We shall not review here the relationship between the law of hadar and the law of hiddur mitzva, according to Rashi. For our purposes it is clear that the laws of hiddur mitzva apply even to a rabbinic obligation, whereas the law of lakhem does not apply.
Another important Gemara in this context appears later in the chapter (36b). The Mishna on p. 34b states that an etrog that is chaser, i.e., missing, even the slightest amount is unfit. The Gemara records the following discussion:
An etrog that was perforated by mice – Rav said: It is not hadar. – Is it not? But surely Rabbi Chanina dips [and eats] of it and [then] fulfills his obligation with it! – Surely according to Rabbi Chanina the Mishna is difficult! – Granted the Mishna, according to Rabbi Chanina, is not difficult: here on the first day of the festival, here on the second day of the festival. But according to Rav, [Rabbi Chanina's practice] is difficult! – Rav can say to you: Mice are different, because they are repulsive. There are some who say: [An etrog that was perforated by mice] – Rav said: It is hadar, for surely Rabbi Chanina dips [and eats] of it, and [then] fulfills his obligation with it. - But according to Rabbi Chanina, the Mishna is difficult! – It is not difficult: here on the first day of the festival, here on the second day of the festival.
And Rashi explains:
"Granted the Mishna, according to Rabbi Chanina, is not difficult" - the Mishna deals with the first day of the festival when taking [the etrog] is by Torah law, and we require unblemished taking, for it is written: "And you shall take (u-lekachtem) for yourselves – an unblemished taking (lekicha tama). But on the second day Rabbi Chanina would fulfill his obligation with it, even though it was no longer whole.
"But according to Rav" – who said it is not hadar, Rabbi Chanina's practice is difficult. For even on the second day, according to Rav, he does not fulfill his obligation, for we require an embellished mitzva, since he mentions God's name over it. As it was said at the beginning of the chapter: Yavesh is disqualified, there being no difference between the first day of the festival and the second day of the festival, and we said [there] that we require hadar, and it is lacking.
On the whole, the picture remains the same: A disqualification based on the law of hadar or hiddur applies even to a mitzva that is only by rabbinic decree; whereas a disqualification derived from "u-lekachtem lakhem" applies only to Torah obligations. And Rashi understands that the law of chaser is derived from the word "u-lekachtem" – lekicha tama.
The Tosafot (29b, s.v. be'inan) were troubled by the issue of the classification of the disqualifications:
"We require hadar, and it is lacking." The implication is that is obvious to the Gemara that we require hadar all [seven] days, but "lakhem – belonging to you" applies only on the first day of the festival. And similarly "u-lekachtem," through which we exclude chaser, because we require unblemished taking, disqualifies only on the first day… There is a question: What is the difference between them; surely they are all written together in one verse: "And you shall take for yourselves on the first day the fruit of the hadar tree"! And if because it understands that the words "on the first day" are attached to the previous words, but hadar is written afterwards, there is still a difficulty. For in Ha-Kometz Rabba and later in our chapter, we learn from the word "u-lekachtem" that the four species are hindrances to one another (me'akvin ze et ze), because we require lekicha tama. And at the end of our chapter and at the beginning of Lulav ve-arava, we also learn from the fact that the word "u-lekachtem" is in the plural, that each and every person must take the lulav, since it does not say "ve-lakachta" in the singular… According to this, on the other days, one species should suffice, and so too one person's taking for everybody! It therefore seems that the reason is that on the first day the obligation in the provinces is by Torah law and on the other days it is by rabbinic decree as a remembrance of the Temple, as is stated at the beginning of Lulav ve-arava. Therefore, regarding the fundamental taking, e.g., four species, and that every individual must take them, they fashioned the rabbinic enactment in accordance with the Torah law, and so too regarding hadar, because of hiddur mitzva. But [the disqualifications of] chaser and a borrowed lulav they did not enact.
The Tosafot agree with Rashi that the dividing line passes between the Torah obligation and the rabbinic enactment. They understand that when Rabbi Yochanan ben Zakkai instituted his enactment, he included those laws relating to the basic taking, and so too the laws of hadar and hiddur, but not the other laws. This line, of course, is not so clear.
Rabbi Yosef B. Soloveitchik suggested, though it does not follow clearly from the wording of the Tosafot, that disqualifications relating to the cheftza (object) of the various species apply all seven days of the festival, but as for disqualifications regarding the act of taking on the part of the gavra (person), there is room for leniency. This position assumes the novel idea that the disqualifications of chaser and sha'ul (borrowed) are disqualifications in the act of taking:
1) The law of "lakhem" (yours) – In shiur no. 6, we suggested that one of the conditions for fitness of the cheftza regarding the four species is ownership, as opposed to sukka, according to Rabbi Eliezer, about which it may be argued that the requirement of ownership relates to the act of dwelling. Rabbi Soloveitchik, however, understands that according to the Tosafot, even with respect to lulav, the law of "u-lekachtem lakhem" teaches that the act of taking requires ownership of the article taken.
2) The disqualification of chaser – Rashi and Tosafot both understand that this is derived from the requirement of lekicha tama. According to Rabbi Soloveitchik, this means that while the cheftza itself is fit, the act of taking is not regarded as "unblemished taking."
THE POSITION OF THE RA'AVAD AND THE RAMBAM
Let us now consider the position of the Ra'avad in his Hilkhot Lulav:
Only gazul (stolen), but all the other disqualifications apply on the first day, but on the rest of the days they are fit… As we said regarding an etrog that is chaser, that Rabbi Chanina would dip [and eat] of it and [then] fulfill his obligation with it on the second day of the festival. And we learned in the Yerushalmi (3:6): If most of the etrog is covered with scabs… Rav Yitzchak bar Nachman said in the name of Shemuel: All the disqualifications apply only on the first day… But avot and non-avot are different species, and we require avot on all the days. For that is not derived from hadar, but from the verse itself, which states "etz avot," and a tree that is not avot is a different species. As it is written: "Go out to the mountain, and fetch olive branches, and branches of wild olive, and hadas branches, and palm branches, and branches of etz avot, to make booths" (Nechemya 8:15). But regarding the other disqualifications, which are derived from hadar – it is only on the first day that Scripture is particular, but not on the other days.
The Ra'avad disagrees with Rashi and Tosafot. He understands that the law of hadar does not disqualify all seven days (though in the next passage, cited in the previous shiur, he disqualifies yavesh all seven days, but not because it is not hadar, but rather because it is considered as dead). The only disqualifications that apply all seven days are those related to the very definition of the species, and also its measurement and basic vitality. Besides the disagreement regarding the law of hadar, there is also a significant disagreement here regarding the seven-day Torah obligation in the Temple. Rashi and Tosafot drew the line between Torah and rabbinic obligations, but according to the Ra'avad, most of the disqualifications do not apply even with respect to the Torah obligation in the Temple:
All the other disqualifications apply only on the first day, as we wrote at the beginning of our words. What is the reason? All the other disqualifications are derived from "hadar," and "hadar" is written regarding the first day, but not the other days. For they maintain that the words "first day" are expounded backwards and frontwards, so that they apply to the whole verse. You might say: just as the words "first day" are expounded backwards and frontwards, so too the words "and you shall rejoice before the Lord your God seven days" we should expound backwards, and require hadar all [seven] days. It is possible to answer that "branches of palm trees, and the bough of thick leaved trees, and the willows of the brook; and you shall rejoice" interrupt. But regarding "the first day," there is certainly nothing that interrupts. Therefore we cast it upon "lakhem" that precedes it and upon "hadar" that follows it.
It would seem that this position supports one of the understandings suggested in the previous shiur, that the seven-day obligation in the Temple constitutes a mitzva that is separate from the mitzva applying on the first day, and therefore it may be governed by different laws. The explanation might be that when the lulav is merely an instrument through which we rejoice, there is room for leniency regarding some of the details of its laws.
We proposed there that, according to such a position, it is possible that if on the first day a person who is in the Temple has a lulav or etrog that is fit only on the other days, he should still take it and fulfill at least the obligation of "And you shall rejoice." A similar suggestion may be made out regarding one who is not in the Temple after the enactment of Rabbi Yochanan ben Zakkai. It may be argued that the enactment expanded the obligation of "and you shall rejoice" as an independent fulfillment to the provinces as well, and according to this, this should be the law even today in the provinces. Most of the posekim imply otherwise, but such a ruling does appear in Responsa Chakham Tzevi (no. 9):
Regarding an etrog that is missing its peduncle (uktza) – let our master teach us whether one may recite a blessing over it on the first day in a time of great need when there is no other etrog in the city.
Answer: This is an old dispute among the posekim. The Rosh is included among those who maintain that a blessing may be recited in a time of great need… It is possible to say that even the Ra'avad who disagrees, [limits what he said] to yavesh which, according to him, is unfit all seven days. But regarding an etrog that is chaser, which is fit on the other days, and a blessing may be recited over it, as it says that Rabbi Chanina would dip [and eat] of it and [then] fulfill his obligation with it – he too would agree that a blessing may be recited over it, just as a blessing may be recited over it on the other days, so that the first day should not be more lenient than the other days. The first day is distinguished from the other days when another one is available over which a blessing may be recited. But when there is no other one besides this one that is chaser, which is fit on the other days, he is certainly obligated even on the first day to take it and recite a blessing over it, just as he recites a blessing over all mitzvot enacted by the Rabbis.
Rabbi Soloveitchik understood that according to the Rambam as well the seven-day mitzva in the Temple and the one-day mitzva in the provinces are two separate mitzvot. He infers this from the following halakha:
All those that we said are unfit because of imperfections, or because of robbery or theft – this is only on the first day of the festival. But on the second day of the festival and the other days, they are all fit. (Hilkhot Lulav 8:9)
In the previous shiur, however, we saw that in other places, the Rambam clearly implies that we are dealing with a single mitzva to take the lulav for seven days in the Temple, which on the first day applies even in the provinces. How then are we to understand the distinction regarding the laws that govern the fitness of a lulav between the first day and the other days? Rav Elyakim Krumbein proposed the following answer in his article, "Netilat Lulav ke-Kiyyum Tzibbur":
The Rambam seems to understand the obligation of taking the lulav in the Temple as an obligation to take the lulav as a collective. This understanding allows us to define the taking of the lulav in the provinces as a continuation of the mitzva in the Temple. The collective taking is created in the Temple, for the people found in the Temple are Israel's agents and representatives. At a second stage, the collective taking of the lulav in the Temple connects to it all those who take the lulav even in the provinces, and thus join themselves to the mitzva of the collective, which is centered in Jerusalem. It is for this reason that the Rambam counts the mitzva of the four species as one mitzva, which is the taking in the Temple. On the first day, within the framework of this collective mitzva, there is also an additional element – "And you shall take for yourselves" – individual taking on the part of each and every member of Israel. But even this personal obligation is meant to join to the collective mitzva, to contribute to it and to be a part of it. The disqualifications stemming from imperfections of the four species pertain only to the individual taking, but this does not contradict the added objective that the Halakha assigned to this taking: to fit into the framework of the collective taking of the lulav of all of Israel… You might ask: since the objective of the individual taking of the lulav is to join to the collective, how are individuals obligated in the mitzva of lulav by Torah law in our day? It is possible that even without the Temple, there is still a collective taking in the very fact that all of Israel fulfills the mitzva, though without a doubt this fulfillment is impaired in the absence of the Temple. However, even if we say that the Torah's objective is that all individuals should join themselves to the collective fulfillment in the Temple, there is no difficulty in assuming that even when this objective is unattainable, the personal obligation falling on each individual still exists. It is characteristic of Halakha that it does not give up on frameworks even when they are incapable of realizing their ideal objectives. (Alon Shevut 150, and note 8).
THE POSITION OF RAMBAM
After raising his objections against the position of the Ra'avad, the Ramban presents his own position on the issue:
I shall now go back and reconcile the passages in proper manner. First of all, I understand that the "hadar" mentioned in the Torah regarding an etrog is like the "avot" mentioned regarding the hadas and the "kapot" mentioned regarding the lulav. All of them are written together with the names of the species. Wherever we need a hadas it must be avot, but a plain hadas is considered like a different species, and not one of the four species… And needless to say, one cannot fulfill his obligation on the second day with the branch of an olive tree or a plane tree. Because the Gemara excluded them because of avot… But certainly whatever is written together with the names of the four species applies on all days. And hadar is also written together with the name of the etrog…
Know that this is true, for the Rabbis apply the exclusion of "on the first day" exclusively to "lakhem," and it is applied neither frontwards nor backwards. For surely the "taking" that is mentioned in the verse refers to all the days. As we learn below (41b): "U-lekakhtem - that the taking should be in the hand of each and every person. And in Menachot (27a) we learn from it "lekicha tama," namely, that the four species are hindrances to one another. And surely this is the law on the second day as well. Rather, the second day is excluded only from the law of "lakhem," but no other laws are excluded. For the Torah writes as follows: "And you shall take for yourselves… and you shall rejoice before the Lord your God seven days." That is to say, you shall rejoice with this taking before the Lord for seven days. But if we exclude the other days from "u-lekachtem," and all the more so from "hadar" and these names, in what shall you rejoice, and to what does it refer? For this reason the Rabbis could only distinguish between the first day and the second day with respect to "lakhem," as I have explained.
Thus it is clear that that which they said, "Granted yavesh – we require hadar and it is lacking," was said as a principle, about which all agree. But it is explicitly stated in the Mishna and the Gemara that the lulav is taken all seven days in the Temple and one day in the provinces. And on the first day we require "lakhem," but on the second day a person fulfills his obligation with his fellow's lulav in the Temple. And the Mishna from the beginning of the chapter relates to the lulav required by Torah law until the end where it teaches the enactment of Rabban Yochanan ben Zakkai: At first the lulav was taken seven days in the Temple, and one day in the provinces. When the Temple was destroyed, Rabban Yochanan ben Zakkai enacted, etc. And with respect to the enactment of Rabban Yochanan ben Zakkai, there is no categorical statement about disqualifications, and the Gemara made no inferences about it, for when the Mishna teaches categorically about the disqualifications without distinguishing [between the first day and all seven days), we have not yet even heard about the enactment that the lulav should be taken in the provinces all seven days. It is only about the lulav that is required by Torah law that they said at the beginning of the chapter that no distinction is made between the first day and the second day. For regarding every instance that the lulav is taken by Torah law it states that gazul and yavesh are disqualified. Granted, yavesh, we require hadar, for hadar is mentioned in connection with the name of the etrog, and whenever we need an etrog, we need hadar, as I have explained. But as for gazul, even in the Temple a person fulfills his obligation with his fellow's lulav on the second day. How then does the Mishna teach gazul without distinguishing, similar to yavesh? This is the explanation of the Mishna and the passage that deals with it. Therefore, all the Amoraim agree about the disqualification of yavesh, and disagree only about gazul. But as for the second day in the provinces which is by rabbinic enactment, this passage does not discuss the matter at all.
But there is another disagreement in the passage below (36b) regarding an etrog that was perforated by mice and is now missing something. At first we thought there that Rav requires hadar, namely that the enactment was fashioned in accordance with the Torah law. And according to this all the disqualifications of the four species mentioned in the Mishna and in the Gemara apply to the enactment of Rabban Yochanan ben Zakkai, as they do to the Torah obligation. But the conclusion according to Rabbi Chanina is that chaser and that which was perforated by mice is fit on the second day in the provinces. For he maintains that we are not stringent with respect to the rabbinic commandment about the disqualifications mentioned in the Mishna. But the passage at the beginning of the chapter is not at all dealing with the second day in the provinces. And it does not come to decide between the initial assumption according to which we require hadar for the rabbinic commandment and the conclusion according to which everything is fit…
This is the Torah law regarding the four species of the lulav. But regarding the rabbinic commandment we find in the Gemara that they said that chaser and that which was perforated by mice are fit. And they said that our Mishna does not refer to the lulav required by the rabbinic enactment, but rather to the first day, that is, to the lulav that is taken by Torah law, which is on the first day in the provinces, and similarly all seven days in the Temple. From this we learn that the disqualifications mentioned by the Sages that stem from imperfections of the four species of the lulav are all fit on the second day of the rabbinic enactment. The Geonim agree about this. And it is clear that if they ruled as fit on the second day an etrog that is missing something or perforated by mice which is repulsive, how can we disqualify an etrog with scabs or one whose top-piece (pitom) is removed? Rather they are all fit, and the Rabbis were not stringent about their enactment regarding the beauty of the four species connected to the lulav. However, the disqualifications because of prohibition, e.g., an ashera, or from an ir ha-nidachat, or an etrog of orla or ritually impure teruma, are unfit all seven days even in the provinces, because they are regarded as having no measurement, and they are like mere dust. And needless to say, those that are unfit because they are not the species, e.g., a hadas shote or a tzaftzefa, can never be used for the fulfillment of one's obligation….
Here there is room to entertain doubts concerning disqualifications because of lack of dimensions, e.g., a hadas or arava that is not three tefachim long, or a lulav that is not four tefachim (32b), and likewise a small etrog (34b) – what is the law on the second day? And similarly where most of the leaves have fallen off, which is unfit on the first day, as explained by the Rabbi – if it is fit on the second day, what is the minimum measure – one leaf on one branch, like the law of arava of the custom from the prophets, or is the measurement a tefach… It stands to reason that the measurements on the second day are the same as on the first day. They were only lenient about disqualifications because of beauty, for they did not want to be stringent about their beauty, because they are not found in every place, and they did not want to overburden the public. And likewise regarding chaser and an etrog that was perforated by mice which they ruled was fit, it seem to be that this is only when the majority remains, but if most of it is missing, it is unfit. They said an etrog, and not half an etrog. Just imagine that they cut a lulav into two, whether this would be fit and one could take one leaf from a palm tree and recite a blessing over it and fulfill one's obligation with it. Rather, it is only when the majority remains; then it is regarded as a lulav or etrog…
In the Yerushalmi, they said: Rav Yitzchak bar Nachman said in the name of Shemuel: All the disqualifications apply only on the first day of the festival. This was stated regarding the Mishna dealing with an etrog the majority of which was covered with scabs, and to rule as fit those disqualifications on account of imperfections on the second day in the provinces… We have clarified these issues and attest that they are true. And even though we are disciples and we drink from the waters of the earlier sages, in cases like this one must speak up before one's master, and not remain silent.
The gist of what the Ramban is saying is that with regard to the seven-day Torah obligation in the Temple, almost all the disqualifications that apply on the first day apply also all seven days; and certainly those laws that are related to the very essence of the species, e.g., the law of hadar; and also those laws that are derived from "u-lekachtem." Thus, an etrog that is chaser is unfit all seven days, whether because of hadar (as is implied by the Ra'avad on Alfasi 14b) or because of the law of lekicha tama (in accordance with Rashi 36b). The only requirement that does not apply all seven days in the Temple is that of "lakhem." The question arises whether the fact that any distinction exists forces us to say that we are dealing with two separate mitzvot, or whether it is possible to apply the distinction that we saw earlier in the words of Rav Krumbein, and say that the obligation on the first day is the obligation of the individual to participate in the collective fulfillment, and therefore there is a special requirement that every individual have his own lulav.
Regarding Rabbi Yochanan ben Zakkai's enactment, argues the Ramban, there are additional leniencies, e.g., the law of chaser and other disqualifications. But the laws relating to the very essence of the species certainly apply all seven days, and so too the laws relating to the measurements of the species.
We are left, however, with a difficulty with respect to the disqualifications based on hadar on the other days (by rabbinic law), for the Ramban defined hadar as part of the very essence of the species, at least with respect to an etrog. Indeed, the Ran (13b in Alfasi, s.v. u-mihu) understood that hadar is required all seven days, and therefore yavesh is unfit, but it is possible to be more lenient regarding the definition of hadar. Thus, chaser (which according to him is unfit because of hadar) is fit, "for he fulfills hadar with that which is left, which is not the case regarding yavesh, where all the hadar is removed."
In the next shiur we shall deal with mitzva ha-ba'a be-aveira. Please advance in the Gemara, p. 30a, until "ka mashma lan." The discussion relates in part to concepts from the realm of theft: ye'ush, shinui shem, and shinui reshut. These, however, will not be the focus of the coming shiur, but of a later shiur dealing with the issue of avankeri. Already at this time, however, it is recommended to advance in the Gemara until 31a, "hoshana karu lei." In addition, see the following sources:
1) Yerushalmi, Shabbat 13:3 [Yerushalmi, Sukka 3:1]
2) Tosafot, s.v. mishum, ha [and the parallel Tosafot in Bava Kama 67a, s.v. amar], mitokh.
3) Ritva 29b, "eino nifsal lo mi-din lakhem… mifsil mishum mitzva ha-ba'a be-aveira, ve-ein tzorekh le-ha'arikh yoter."
How does the Yerushalmi in Shabbat understand the concept of mitzva ha-ba'a be-aveira? Can it be understood differently? Analyze, in light of the various understandings, the positions of the Rishonim regarding mitzva ha-ba'a be-aveira after ye'ush.
(Translated by David Strauss)
 Over the course of the shiur, we will relate to the expression, "the second day of the festival," as referring to the rest of the days of the festival after the first day. The Rishonim (Ran, Ritva, and others) conduct a separate discussion regarding Yom Tov Sheni, the second festival day that is celebrated in the Diaspora, but we will not address this issue in the framework of this shiur.
 The Meiri in Magen Avot raises a question: "Our Mishna was certainly written after the destruction of the Temple and after the enactment, for an anonymous Mishna follows Rabbi [Yehuda Ha-Nasi] and an anonymous Baraita follows etc., and they are all according to Rabbi Akiva who was of the third generation, following Rabban Yochanan ben Zakkai."
 The Ritva formulated the distinction as follows: "The mitzva of 'lakhem' is not a stringency in the body of the four species. But rather Scripture was stringent on the first day, just as it was stringent regarding tzitzit and sukka, about which it is stated, 'and they shall make for themselves' – belonging to them, 'you shall make yourself' – belonging to you. Therefore, they didn't extend it to the other days, for the first day is more stringent than the other days, for the mitzva applies there by Torah law in the provinces. Therefore we need not be stringent on the matter of lakhem that was stated regarding the first day, that it should apply also on the other days as on the first day. But anything that is disqualified because it is not hadar, applies by Torah law on all the days that are by Torah law."