Aharon - this question was dealt with previously in our Insights to Daf 30a. It has been copied below.

Best wishes,

Mordecai Kornfeld

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2) THEFT FROM A NOCHRI

QUESTIONS: The Gemara relates that Rav Huna instructed the Jewish retail agents ("Avankeri"), who buy Hadas branches from Nochri wholesalers in order to sell them to other Jews for the Mitzvah of Arba'as ha'Minim, that they should not pick the branches themselves but should have the Nochri wholesalers pick them.

RASHI (DH v'Karka) explains that the reason why the Jewish agent should not cut the Hadas himself is because Nochrim frequently steal land from Jews, and it is possible that the field from which this Hadas came was stolen from a Jew. Therefore, in case the field belonged to a Jew, the Jewish agent should not cut (and inadvertently steal) the Hadas branch, but he should let the Nochri do the act of stealing the Hadas.

Why does Rashi say that the land might have belonged to a Jew? Even if it was stolen from a Nochri, a Jew is forbidden to steal from him, and the Hadas will not meet the criterion of "Lachem." In fact, it is Rav Huna himself who teaches that a Jew is forbidden to steal from Nochrim (Bava Kama 113b). (PNEI YEHOSHUA, CHASAM SOFER, and others)

ANSWERS:

(a) The NESIVOS HA'MISHPAT (CM 348:1) posits that according to the REMA (EH 28:1), even though there is an Isur d'Oraisa against stealing from a Nochri, there is no obligation mid'Oraisa to return the stolen object (Chiyuv Hashavah). The obligation to return the object is mid'Rabanan. The Rabanan enacted that the object be returned in order to prevent Chilul Hash-m.

(The Gemara in Bava Kama (113b) explains that even if the Torah forbids a Jew from stealing from a Nochri, that prohibition forbids only actively stealing from a Nochri. It does not forbid a passive form of theft, such as defaulting on a loan that one owes to the Nochri, or not returning a lost object of a Nochri that one finds. In those cases, one is required to return the Nochri's property due to a decree of the Rabanan that was instituted to prevent Chilul Hash-m. Similarly, RASHI in Sanhedrin (57a, DH Yisrael b'Kuti) writes that the prohibition against withholding the wages of a worker is only mid'Rabanan, due to the concern of Chilul Hash-m. The Nesivos takes this a step further when he suggests that the Torah does not obligate one to return an object to a Nochri, even if it is still intact.)

The OR SAME'ACH (Hilchos Sukah 5:25) suggests that, according to this view, since there is no Chiyuv Hashavah (even if the object is still intact), the thief acquires it as soon as the Nochri despairs ("Ye'ush") of ever recovering it. After this point, even if the Nochri would reclaim the object on his own, he would have to return it to the thief. A physical change in the object (Shinuy) is not necessary, just as a change in the object is not necessary in order for one to acquire a lost object of a Jew through the original owner's despair of recovering his object. The obligation to return a stolen object is what prevents the thief from acquiring it through Ye'ush alone.

After one acquires a stolen object, he may use it for a Mitzvah, and it is no longer subject to the principle of "Mitzvah ha'Ba'ah b'Aveirah." Since the Gemara (30b) says that it is necessary to have a Shinuy, in addition to Ye'ush, in order to acquire the Hadas, the Gemara must be referring to a Hadas stolen from a Jew, because an object stolen from a Nochri needs only Ye'ush in order for one to acquire it. (The Or Same'ach writes this in accordance with the opinion of Tosfos, cited above in Insights to 30:1:c. It is not clear how this explains the view of Rashi, who maintains that the principle of "Mitzvah ha'Ba'ah b'Aveirah" applies to a stolen object even after the thief has acquired it; see following Insight. Perhaps Rashi agrees with Tosfos in a case such as this one, in which the theft and the acquisition of the object occur simultaneously, since Ye'ush preceded the act of Gezeilah.)

(The VILNA GA'ON (CM 348:2) argues with the Nesivos' assertion that there is no obligation, mid'Oraisa, to return an object stolen from a Nochri. He cites a Tosefta (Bava Kama 10:8) that clearly states that one who steals from a Nochri must return the stolen property. The Tosefta implies that the obligation is mid'Oraisa, like the obligation to return an object stolen from a Jew.)

(b) The RAMBAN (in Milchamos) assumes that the Gemara refers to a Hadas stolen from a Jew. He writes that a Mitzvah performed with a Hadas stolen from a Nochri is not a "Mitzvah ha'Ba'ah b'Aveirah." Apparently, the Ramban understands that the Gemara here follows the opinion (in Bava Kama 113a) that "Gezel Akum" is permitted.

The Ramban's approach is difficult to understand. The ruling of the Gemara here was made by Rav Huna, but in Bava Kama it was Rav Huna himself who said that "Gezel Akum" is prohibited (as we mentioned in the question)! Apparently, the Ramban had a variant Girsa in the Gemara here. According to his Girsa, it was not Rav Huna but another Amora who made this statement. Indeed, in some texts of the Gemara it is Rava, and not Rav Huna, who made this statement. (See, for example, the Gemara as quoted by the TESHUVOS HA'RASHBA 1:968 and RITVA in Gitin 55a. This emendation must be made in the words of the Milchamos here as well.)

Perhaps Rashi's text of the Gemara also read "Rava" and not "Rav Huna," and that is why Rashi explains that the Gemara is not discussing a field stolen from a Nochri. Rashi wants to avoid having Rava maintain that "Gezel Akum" is prohibited. For that reason, Rashi says that the Gemara is not discussing a field stolen from a Nochri, because if it was stolen from a Nochri, there would be no reason to prevent the Avankeri from picking the Hadas and using it for the Mitzvah. (Indeed, the DIKDUKEI SOFRIM here (footnote 90) cites old manuscripts in which the text of Rashi (DH v'Karka) reads that Rava said this statement.)