1) We see in the Talmud Yerushalmi here; near the beginning of the chapter; that there is an issur in such a Sukah. The Yerushalmi tells us that Gamliel Zuga made a Sukah in the market place. Rabbi Shimon ben Lakish passed by and said to him "Who permitted you to do this?!". The Or Zarua Hilchos Sukah end #302 explains that that R. Shimon ben Lakish was saying to him that he had no permission lecatchilah to build a sukah there. The Rabanan only permitted such a sukah bedieved but lecatchilah it is prohibited to build a sukah on public land.

2) The Rosh end 3:3 writes that the Rif disqualifies a stolen Lulav on the 2nd day Yomtov also. If one makes a beracha on such a Lulav, this is considered as cursing Hash-m, because of the averah of Gezela.

KOL TUV

Dovid Bloom

Follow-up reply:

1) I saw that the Chazon Ish, Orach Chaim 150:22 DH Sukah, asks on the Rabanan who permit a stolen sukah; why is the sitting itself in this sukah not considered as stealing?! If one uses someone else's property and he protests against this, it is considered to be Gezel?! How then can Rabanan say that one is yotzei if one sits in a stolen sukah?!

2) Chazon Ish answers that it seems that the scenario here is where the owners are not makpid with the person sitting in their sukah. However the person sitting in the sukah intends to steal it totally; not just for the days of Yomtov but for the entire future; and now on Yomtov he uses the sukah.

3) Chazon Ish writes that also in the case where he puts his schach in the public area and sits in the sukah, the public object to the schach and the walls which disturb them, but do they not mind whether or not somebody sits in the sukah. As long as the sukah is standing anyone can come inside in the same way that everyone uses Reshus Harabim, so this is not considered as Gezel when one uses the sukah.

4) The Chazon Ish's explanation is certainly very novel, and the other Mefarshim may well disagree with him. However, he does have support from the idea mentioned in Pesachim 4b that an owner is happy that other people do Mitzvos with his property. Therefore the Chazon Ish does not find it to be a remote sceanario that the owners do not object to the person sitting in their Sukah. What they object to is that after Sukos is finished also; when there is no longer any Mitzvah; the trespasser still does not intend to return the Sukah. This is why Rabanan agree that lecatchilah one should not use the sukah in this way, even though concerning Yomtov itself the owners have no complaints.

Behatzlachah Rabah

Dovid Bloom

The explanation of the Pnei Yehoshua:

1) The Pnei Yehoshua 30b DH veHaNLA'D writes that in the sugya of buying the Lulav from the Akum there is no prohibition of gezela involved, because when the Gemara states that the average Akum steals land, this only refers to a Miyuta deMiyuta of Akum. Only a small minority are thieves so one would not really have to be concerned with the possibility that the seller is a thief. Even if one would say that the owner of the land is one of the minority of thieves; there are still other doubts involved because even if he often steals, how do we know that this particular field, or this particuilar tree that he is selling from, is stolen?

2) Therefore Pnei Yehoshua writes that the din of Rav Huna is a chumra beAlma; it is a mere stringency in case someone may come along afterwards and argue that the Lulav that was bought from the Akum represented a Mitzvah Haba b'Aveirah so the beracha made on it was a Beracha leVatola and a curse on Hash-m. This is why Rav Huna said that the Akum should uproot the Hadas; so that afterwards nobody can claim that an aveirah was done; but there really is no gezel involved in buying from the seller since the vast majority are not thieves, and also if there was Shinui Maaseh, this means we have covered all eventualities and no slight trace of gezel is involved.

Good Shabbos

Dovid Bloom

Aruch leNer and Bava Kama 113b:

1) I found, bs'd, that the Aruch leNer 30b DH Sof Sof supports the Pnei Yehoshua. Aruch LeNer also asks the question; why is there no prohibition of gezelah involved when the Uvankuri cut the Hadas from the field? The Aruch leNer answers that the fact that Rav Huna only said his Halacha in connection with the Hadas of Mitzvah; and did not say that no Yisrael can ever cut fruit from the field of a Kuti; suggests that the din of Rav Huna is a chumra said because of the Mitzvah of Hadas; that one should be extra-careful that it is not stolen; but if not for the issue of Mitzvah HaBaah beAveirah, the Avunkari would be allowed to cut the fruit from the Kuti field. Aruch leNer writes that after he wrote the above he saw that the Pnei Yehoshua wrote something similar.

2) I think that I have found support for the Pnei Yehoshua and the Aruch LeNer from the Gemara Bava Kama 113b. We learn there that Rav Ashi was walking along and asked his attendant to cut off grapes frrom a Kuti field with the intention of paying afterwards (see Tosfos DH Hachi). We learn from this Gemara that a Yisrael is allowed to cut fruit from the field of a Kuti and one need not be worried that the fruit is stolen. This seems to be a support for what the Pnei Yehoshua writes that most Akum do not steal land, and that the din of Rav Huna is merely a chumra when a Mitzvah involved, but within the framework of monetary law no gezelah is involved.

Shavua Tov

Dovid Bloom

Earlier sources than Pnei Yehoshua:

1) I found, bs'd, that the Chok Yaakov on Shulchan Aruch Orach Chaim 454:6 gives the same answer to this question as the Pnei Yehoshua. I looked up the dates, and the Chok Yaakov (written by Rav Yaakov Reisher, who also wrote the Shevus Yaakov) was born 19 years before the Pnei Yehoshua, so it is likely that he reached this chidush before the Pnei Yehoshua. He writes that it is only a far off possibility that the land was stolen, and it is merely because of a chumra of the Mitzvah that we are stringent because of Mitzvah HaBaah beAveirah. Chok Yaakov also cites the Gemara Bava Kama 113b that I mentioned in my previous reply. This Gemara is cited by the Taz Orach Chaim 664:6, but the Taz asked that there is a contradiction between Sukah 30 and Bava Kama 113b, whilst Chok Yaakov writes that if one says that the din of Rav Huna is merely a chumra because of the Mitzvah, there is no contradiction between the 2 Gemaras, since Bava Kama 113b refers to where no Mitzvah was involved, so Rav Ashi was able to buy.

2) I also found that one of the Rishonim writes something which is at least in the same direction as the Chok Yaakov, Pnei Yehoshua and Aruch LeNer. This is in Chidushei Ritva Sukah beginning 30b DH uParchinan. He comments on the Gemara top 30b which asks that when the Avankari cut the Hadas, that should be Yiyush of the owners in their hands, and when we buy it from them this should be Shinui Reshus in our hands. The Ritva asks on the Gemara that how can we buy from the Avankeri if they themselves have not acquired the Hadasim in a permitted way?! Ritva answers (in his first answer) that the entire matter is a safek. It is not certain that the land is stolen. Therefore one can be lenient and buy from the Avankeri.

The Ritva does not quite go as far as the Pnei Yehoshua and write that it is a Miyuta deMiyuta that steal the land but he does write that the entire matter is a doubt so this fits in with saying that in terms of monetary law there would not be sufficient grounds for saying that one may not buy, and it is only because of the Mitzvah that one has to be more machmir than usual and not buy directly from the Akum.

Dovid Bloom

The explanation of Rabeinu Tam:

1) We can now show, bs'd, that the Pnei Yehoshua was mekaven to an even earlier Rishon. This is Rabeinu Tam in Sefer Hayashar on Masechet Gitin #120. He is cited in the notes to Chidushei Ritva that I mentioned just before but I am going, bs'd, to cite this in the way that the Chasam Sofer presents it here in Chidushei Chasam Sofer Sukah 30a page 48 DH Ha Kanya b'Yiyush. He writes in the name of Rabeinu Tam that there is no transgression involved in buying the Hadas from the Akum because most fields have not been stolen and anyone is allowed to buy from the Akum. However we are concerned that there is a possibility that later on, we may find out that the field was in fact stolen, and was not "Lachem". Therefore "LeRavacha deMilta"; as an extra precaution; we say that the Akum should cut off the Hadas, but even if he did not, there would never be an aveirah if we found out afterwards that the field is stolen, because the Yisrael was shogeg, since he may rely on the fact that most fields have not been stolen.

2) See also Chidushei Chasam Sofer above end Sukah 29b, top of page 44, who again cites Rabeinu Tam that if one is shogeg there is no Mitzvah HaBaah BeAveirah. However the Chasam Sofer there cites Talmud Yerushalmi Shabbos 13:3 which seems to say that Mitzvah HaBaah BeAveirah also applies beShogeg.

Dovid Bloom