6b----------------------------------------6b

1)MAY ONE BLESS ON STOLEN MATZAH? [Mitzvah ha'Ba'ah b'Aveirah :Matzah]

(a)Gemara

1.(Beraisa - R. Eliezer ben Yakov): If one stole wheat, ground it, kneaded and baked it and separated Chalah from it, his Berachah only angers Hash-m - "a thief who blesses, blasphemes."

2.(Abaye): He holds that Ein Shinuy Koneh.

3.Rejection (Rava): Perhaps he holds that Shinuy Koneh. However, one may not bless because it is a Mitzvah ha'Ba'ah b'Aveirah!

4.Pesachim 38a (Rav Asi): R. Meir considers Ma'aser Sheni to be like Hekdesh. He exempts a dough of Ma'aser from Chalah, and holds that one is not Yotzei with Matzah of Ma'aser. Chachamim (who hold that Ma'aser is a person's money) obligate taking Chalah, and say that one is Yotzei with Matzah of Ma'aser.

5.Question (Rav Papa): Granted, it says about Chalah "Arisoseichem" - only your dough is obligated. It does not say 'Matzaschem.' Why must you own it?!

6.Answer (Rava or Rav Yemar): We learn from a Gezerah Shavah. It says here "Lechem Oni," and it says about Chalah "v'Hayah ba'Achalchem mi'Lechem ha'Aretz." Just like there it must be yours, also here.

7.Kesuvos 30b: If David put Terumah in Levi's mouth, Levi acquires it once he chews it, but is not Chayav Misah until he swallows it.

(b)Rishonim

1.Rambam (Hilchos Chametz u'Matzah 6:7): One is not Yotzei with stolen Matzah. One is Yotzei only with Matzah on which one blesses Birkas ha'Mazon.

i.Magid Mishneh and R. Mano'ach, citing the Yerushalmi: One may not bless on stolen Matzah. R. Oshaya learns this from "Botze'a Barech." This refers to beforehand. One blesses afterwards, for he owes just money. R. Yonah says, an Aveirah is not a Mitzvah. R. Yosi says, a Mitzvah is not an Aveirah. R. Ila says "these are the Mitzvos" - if you do not do them properly, they are not Mitzvos. Some say that one is Yotzei b'Di'eved, for one owes only money, and it does not say "Matzaschem." This is unlike the end of the Yerushalmi. If one stole flour or wheat and made Matzah, surely he was Yotzei. He acquired, and owes only money.

ii.R. Mano'ach: Even though it does not say "Matzaschem", we learn from Chalah, for which "Arisoseichem" excludes Hekdesh. We disqualify Matzah of Ma'aser according to the opinion that it is Hash-m's property. Surely, also Gezel is excluded. If one's Matzah might have been switched with another's (e.g. during baking), they should stipulate that whatever each takes is his. We do not bless Birkas ha'Mazon on stolen Matzah, for it was an Aveirah (Rambam Hilchos Berachos 1:19).

2.Rosh (Pesachim 2:18): One is not Yotzei with stolen Matzah. Chachamim argue only about Ma'aser Sheni. They also learn the Gezeirah Shavah "Lechem-Lechem" (Menachos 70b). Stolen Matzah is not considered yours. In the Yerushalmi, it seems that R. Oshaya holds that one is Yotzei b'Di'eved, but perhaps the latter Amora'im disagree.

i.Ritva (Sukah 35a DH Ela): One is Yotzei with stolen or borrowed Matzah, for he acquires it through Shinuy while chewing it, like it says in Kesuvos. The Gezeirah Shavah requires your Matzah. This excludes only Ma'aser Sheni, according to R. Meir. He holds that it is Hash-m's food, and one has permission to eat it, so we cannot say that he acquires through Shinuy.

3.Tosfos R. Peretz and Tosfos Rashba (Pesachim 35b DH Aval): Mitzvah ha'Ba'ah b'Aveirah applies only to Mitzvos like Lulav, which we use to praise Hash-m and appease Him, or Korban.

4.Ramban (Pesachim 35b DH Yesh): Mitzvah ha'Ba'ah b'Aveirah does not apply to an Isur like Tevel, which can be fixed. Mitzvah ha'Ba'ah b'Aveirah is only mid'Rabanan; the Gemara brought an Asmachta from Nevi'im. Some disagree.

(c)Poskim

1.Shulchan Aruch (OC 454:4): One is not Yotzei with stolen Matzah.

i.Mishnah Berurah (14 and Bi'ur Halachah DH Ein): This connotes that he must bless again. However, since the Ritva says that he was Yotzei, perhaps he should not bless again. Sha'agas Aryeh (95) says that even on the second night, he was not Yotzei. Some say that one is Yotzei with stolen Maror. Others say that also Maror must be yours. Sha'agas Aryeh (94) says that this is a Mitzvah mid'Rabanan ha'Ba'ah b'Aveirah. The Mechaber (649:5) says that one is Yotzei in such a case, but the Rema says that one is not Yotzei.

ii.Magen Avraham (196:1): Perhaps one blesses Birkas ha'Mazon even if he ate stolen bread, for he acquired it through eating. Also, the Beis Yosef was in doubt in Siman 649 (about blessing after one acquired through Shinuy), so we must be stringent about Birkas ha'Mazon.

iii.Kaf ha'Chayim (29): The Aruch ha'Shulchan is lenient about Maror on the second night, when it is mid'Rabanan for two reasons, since some are lenient even on the first night.

2.Shulchan Aruch (ibid.): This is if he stole Matzah. If he stole flour or wheat and made Matzah, he was Yotzei, for he acquired it, and he owes only money.

i.Taz (4): Even though one is not Yotzei with a borrowed Esrog, for it must be yours, one is Yotzei with borrowed Matzah. The lender knows that the borrower will eat it. He allows him to acquire it and pay for it afterwards.

ii.Kaf ha'Chayim (31): One is Yotzei l'Chatchilah with borrowed Matzah.

iii.Magen Avraham (5): If Ploni stole Matzah and gave to Levi after despair, Levi is Yotzei. If Levi returned it to Ploni, Ploni is Yotzei with it.

iv.Gra (9): We forbid due to Mitzvah ha'Ba'ah b'Aveirah only when he acquires through an Aveirah, e.g. Shinuy Reshus with despair. This is according to the Halachah, that despair does not acquire by itself.

v.Gra (10): Tosfos says that even when he acquired it without the Aveirah and it is not Mitzvah ha'Ba'ah b'Aveirah, he may not bless on it.

vi.Mishnah Berurah (16,17): One is not Yotzei l'Chatchilah, for he may not bless on it. One who bought stolen Matzah after despair may bless on it, for it did not come to him through an Aveirah.

See also:

KINYAN THROUGH SHINUY (Bava Kama 93)

DO WE BLESS ON EATING ISUR (Bava Kama 94)

DOES MITZVAH HA'BA'AH B'AVEIRAH APPLY AFTER SHINUY? (Bava Kama 96)

OTHER D.A.F. RESOURCES ON THIS DAF