Shiur #01: Stolen Shofar
Talmudic Methodology
Yeshivat Har Etzion
Shiur #21: Stolen
Shofar
By Rav Moshe
Taragin
The gemara in the beginning of the third perek of
Sukka disqualifies a stolen set of daled minim for the performance of the
mitzva. As the gemara comments, this scenario represents mitzva haba'a
ba'aveira. The language of this halakha as well as its underlying logic suggests
a broad application of this rule to other mitzvot. In fact the gemara in Rosh
Hashana (28) invalidates the use of a shofar taken from a korban presumably
because its use entails an act of aveira (deriving elicit benefit from hekdesh).
Ultimately, Rava determines that one may use a shofar belonging to a korban
because 'mitzvot lav lehenot nitnu' - the process of performing a mitzva does
not constitute the derivation of pleasure. As no pleasure results, no violation
of hekdesh has occurred and the mitzva is legitimate. Based upon these two
gemarot which disqualify mitzva haba'a b'aveira, presumably, a stolen shofar
would not enable a valid mitzva. It is noteworthy that neither the gemara in
Sukka nor the one in Rosh Hashana directly relate to a stolen shofar.
The Rambam introduces a new opinion regarding a
stolen shofar. In the first perek of Hilkhot Shofar he claims that a stolen
shofar MAY used in the performance of the mitzva. He establishes this leniency
based upon his position that the mitzva is performed by listening to the sound
of the shofar and not by blowing. One might have claimed that the mitzva
consists of blowing and individuals who listen to the ba'al tekiya blowing are
'yotzei' their responsibility to blow through his act. In contrast to this
notion, the Rambam repeatedly claims that the mitzva consists of merely hearing
a sound. Consequently, one may blow with a stolen shofar "since a sound cannot
be stolen" (ein bekol din gezel).
The Rambam appeared to have chosen as his source a
statement of the Yerushalmi in the beginning of the third perek of Sukka. Having
disqualified a stolen lulav (as mentioned above) the Yerushalmi validates a
stolen shofar since "in the instance of lulav he executes that mitzva with the
actual item (which if stolen is unacceptable) whereas regarding shofar he
performs the mitzva with the sound (which cannot be stolen).
It would appear that the Rambam is issuing an
important statement about the principle of mitzva haba'a ba'aveira. One could
claim that the principle disqualifies any mitzva which was FACILITATED by a
prior aveira. By stealing a lulav, an individual assists the mitzva; if not for
the theft the mitzva may have been unattainable. As such there might be little
room to distinguish between a lulav and a shofar - in either case the theft
enables the subsequent mitzva. By distinguishing between the two, the Rambam
claims that this principle disqualifies objects of mitzvot which themselves ARE
ITEMS of aveira. A stolen lulav is an item of an aveira (cheftza d'aveira) and
cannot be employed for the mitzva just as a dry lulav is invalid for the mitzva
performance. In the case of shofar however, the object of the mitzva (the sound)
is not stolen, is not an item of aveira and therefore the mitzva is not
hampered.
This position of the Rambam is reminiscent of an
interesting machloket between two Tosafists in the beginning of the third perek
of Sukka.
Would a stolen lulav be invalid for the mitzva
after the thief transformed it through a shinui and thereby acquired it? Once a
thief effects a physical or chemical change upon a stolen item (shinui) he
acquires the item as his (although he is still obligated to compensate the
theft). Would a lulav whose legal ownership was transformed through shinui be
disqualified for the performance of the mitzva? The debate between the Ri and
the Rabenu Tam surrounding this issue is recorded in two Tosafots in Shas (Bava
Kama 66 and Sukka 30). Conceivably, they might be disputing the structure of
mitzva haba'a ba'aveira. They might agree with the Rambam that the
disqualification is realized when the proscribed item of the mitzva is also an
object of aveira. Once the original stolen item has been altered the original
object of aveira no longer exists and the new lulav may be employed for the
mitzva.
Alternatively, we may differ and claim that any
aveira which facilitates the mitzva disqualifies that mitzva. Undoubtedly, the
original theft continues to enable the performance of the mitzva even after the
original item has been altered resulting in ownership transfer.
After validating a stolen shofar because the
object of the mitzva is a sound which cannot be stolen, the Rambam applies the
same rule to a shofar taken from an animal of a korban. Presumably, the Rambam,
by linking these two scenarios (he employs the term v'chein preceding his
description of shofar of a korban) compares their logic. Ostensibly, in the
instance of korban as well, though the shofar is an aveira ITEM, since the
object of the mitzva is the emitted sound - which is not the actual aveira item
- the mitzva is valid. What is not altogether clear from the Rambam is why a
shofar of korban is considered an aveira item and why it, like a stolen shofar,
is a candidate for the disqualifying principle of mitzva haba'a ba'aveira!! A
stolen item underwent an actual process of aveira and is therefore flawed for
mitzva performance. A korban did not 'undergo' an aveira!! Would the Rambam
maintain that any item which is forbidden to derive pleasure from is considered
an aveira item which is invalid for mitzva!! An interesting gemara in Pesachim
prohibits the use of matzo from tevel wheat. Though this too would seem a likely
candidate for mitzva haba'a ba'aveira, the gemara cites an independent derasha
to disqualify tevel for matzo. The simple reading of this gemara suggests that
tevel matzo is NOT an aveira item and would not be disqualified through the
principle of mitzva haba'ah ba'aveira.
Would the Rambam disagree? Would any prohibited
item - even one which did not undergo a prior act of aveira, be considered an
aveira item and defective for a mitzva. It is not entirely clear from the Rambam
in Hilkhot Chametz U'matza 6:7 how he reads the gemara in
Pesachim.
Certainly, his statement in Hilkhot Shofar would
imply that he disqualifies matzo of tevel based upon mitzva haba'a
ba'aveira.
The Ra'avad, in his comments to Hilkhot Shofar
1:3, validates a stolen shofar for an entirely different reason. Citing the
continuation of the Yerushalmi in Sukka perek 3 he asserts that by coining the
mitzva in indirect terminology, the Torah validates the use of a stolen shofar.
Instead of commanding us to 'blow' or 'sound' the shofar, the Torah merely
instructs 'yom teru'a' which allows the use of stolen shofarot. Does the Ra'avad
view this derasha as one which directly validates a stolen shofar; by coining
the mitzva in this irregular and indirect fashion the Torah is conveying a
validation for a stolen shofar? Or might the Ra'avad claim that a mitzva like
shofar, BY NATURE is impervious to mitzva haba'a ba'aveira concerns. Though the
act of blowing may be tainted, and the object of the mitzva may be blemished,
the DAY itself has been converted into a day of sound.
Typically, the Torah legislates an act to be performed with a particular item. If the act is enabled by aveira or the object is identified as aveira, the mitzva stalls. However, by instructing 'yom teru'a' the Torah may be directing us to create an ENVIRONMENT of shofar sounds - to convert the day into one laced with shofar sound. Blowing a stolen shofar certainly accomplishes this task!!