THE LAW OF A STOLEN SUKAH [theft: land: Sukah]
(Beraisa - R. Eliezer): (If Reuven stole Shimon's field and) the river flooded it, he must give to him another field;
Chachamim say, he can say 'your field is in front of you.'
R. Elazar expounds "he will deny his neighbor about a deposit... anything he will swear about" through the method of Ribuy and Mi'ut. He includes everything (one must swear about anything, and return it if he stole it), and excludes only documents. Chachamim expound through Klal u'Frat (general and specific terms), and include everything similar to the Prat, i.e. Metaltelim (things that can be moved) with intrinsic value.
Bava Kama 117a (Rav Papa): R. Elazar holds that land can be stolen. Chachamim disagree.
Sukah 27b (Beraisa - R. Eliezer): One is not Yotzei with another's Sukah - "Chag ha'Sukos Ta'aseh Lecha".
Chachamim say that one is Yotzei with another's Sukah. "Lecha" disqualifies a stolen Sukah.
31a (Beraisa - R. Eliezer): A Sukah that was stolen or made in Reshus ha'Rabim is Pasul;
Chachamim say, it is Kosher.
Rav Nachman: They argue about one who physically expelled Levi from Levi's Sukah. R. Eliezer holds that one is not Yotzei with another's Sukah. If land can be stolen, it is a stolen Sukah. If land cannot be stolen, it is a borrowed Sukah.
Chachamim hold that land cannot be stolen, so it is considered borrowed, and one is Yotzei in it.
We learn from the Beraisa which discusses a Sukah in Reshus ha'Rabim together with Gezulah. One does not own the ground in Reshus ha'Rabim; the same applies to the stolen Sukah.
Rambam (Hilchos Sukah 5:25): A borrowed or stolen Sukah is Kosher. If Shimon expelled Levi from Levi's Sukah and sat in it he is Yotzei, for land cannot be stolen.
Kesef Mishneh, R. Mano'ach and Ran (Sukah 12b): There is a stolen Sukah that is Pasul, i.e. on a boat or wagon. Since it is moveable, it can be stolen.
Hagahos Maimoniyos (8, citing Avi ha'Ezri): One who enters another's Sukah without permission is not Yotzei. This is how the Yerushalmi explains Sukah Gezulah.
Rambam (ibid.): If one made a Sukah in Reshus ha'Rabim it is Kosher.
Rosh (Sukah 2:16): Chachamim use "Lachem" to disqualify a stolen Sukah.
Ran (Sukah 12b): We disqualify a stolen Sukah. This is not when Shimon physically expelled Reuven from Reuven's Sukah and sat in it. Since land cannot be stolen, this is a borrowed Sukah. Shimon does not acquire at all, therefore it is not Mitzvah ha'Ba'ah b'Aveirah.
Shulchan Aruch (OC 637:3): A stolen Sukah is Kosher, e.g. if Shimon expelled Levi from Levi's Sukah and sat in it. This is because land cannot be stolen.
Rema: L'Chatchilah one may not sit in Levi's Sukah without permission, all the more so if he intends to steal it.
Taz (4): This is because Levi does not want others to see his affairs and his food. When Levi is not there one may enter, for a person wants others to do Mitzvos with his property. One may borrow another's Lulav without his knowledge (649:5). All the more so one may borrow his Sukah!
Mishnah Berurah (9): If Levi may come while the visitor is there, he may not sit there, lest Levi come and be ashamed to eat or do other matters in front of him. If Levi's wife gave permission, presumably Levi would not mind.
Kaf ha'Chayim (15): If the Sukah is spread with nice pillows and blankets, surely the owner is particular that others not eat there, lest they get dirty. Therefore, one must get permission to eat or sleep there.
Rema: One may not make a Sukah on another's property or public property. B'Di'eved it is Kosher.
Magen Avraham (3): Some people make a Sukah in Reshus ha'Rabim. This is Sukah Gezulah! Pardon of the city residents does not suffice, for Reshus ha'Rabim belongs to the entire world! Even if all Yisraelim pardon this, Nochrim do not. B'Di'eved it is Kosher. It is not Mitzvah ha'Ba'ah b'Aveirah, for he does not acquire at all. It seems that one should not bless on it.
Eshel Avraham (3): Perhaps it helps to rent the area from the mayor, like it helps for Eruvin. Even though Sukah is mid'Oraisa, Dina d'Malchusa Dina (the law of the land is binding). Perhaps here the concern is only mid'Rabanan, for land cannot be stolen. It is unlike Siman 649 (stolen Arba Minim). There, one may not bless due to Mitzvah ha'Ba'ah b'Aveirah. One who is stringent about this will be blessed.
Mishnah Berurah (10): Eliyahu Rabah and Ma'amar Mordechai say that one may bless. One may rely on them if another Sukah is not available.
Bi'ur Halachah (DH v'Chen): The Beis Meir says that here, one does not intend to steal the area. He only wants to borrow it and return it intact after Sukos. It is not even borrowing without permission, for Nochrim see and do not protest. The Yerushalmi connotes that it is Kosher b'Di'eved. Bikurei Yakov is totally lenient, for the government sees and does not protest; it pardons this. One need not request permission. Many opinions are lenient, so we do not protest against one who makes a Sukah in Reshus ha'Rabim.
Kaf ha'Chayim (16): Shulchan Aruch ha'Rav and Derech ha'Chayim also rule like the Magen Avraham. It is a Safek Berachah, so one should not bless. If one blesses, we do not protest, for he has whom to rely on.
Mekor Chayim: The Tosefta (Bava Kama 6:13) permits making a Sukah outside one's store in Reshus ha'Rabim. The Magen Avraham explained that Beis Din stipulates that this is permitted! Perhaps this is only right outside one's property, for there is little inconvenience to the Rabim.
Kaf ha'Chayim (17): One owns the four Amos in front of his house, so surely he may make a Sukah there, especially since people have permission from the mayor to make Eruvin and Sukos.
Rema: Similarly, if Levi built a Sukah in Shimon's property and Shimon expelled Levi and sat in it, he was not Yotzei. Since Shimon did not toil or spend money to make it, there is no enactment.
Source: Hagahos Ashri 2:16.
Magen Avraham (7): It is not borrowed, for it is not in Levi's Reshus. It is unlike land, which is in its owner's Reshus, therefore it cannot be stolen. Our text of Tosfos says that Levi had permission to build it. The Bach and Maharsha correct the text to say 'no permission', like it says in Hagahos Ashri. The Darchei Moshe had this text. If he gave permission for the week of Sukos, the Sukah is in Levi's Reshus, and Shimon is like a borrower. The Rema did not stipulate that he had no permission. He holds that the same applies even if he had permission, for the land is not in Levi's Reshus.
Bi'ur Halachah (DH Lo Yatza): Machatzis ha'Shekel says that the Magen Avraham equates our Halachah to stolen Arba'ah Minim, to teach that even others who sit in it are not Yotzei. This is not clear. One must own the Minim; one who received from one who does not own them does not acquire them. Here, one is Yotzei through a borrowed Sukah, for he has no intent to steal it. He just wants to be Yotzei in it. Perhaps the owner wants that he be Yotzei! Perhaps the Magen Avraham only meant to say that just like in Siman 649, the thief is not Yotzei before or after despair.
Question (Magen Avraham): According to Hagahos Ashri, why is Shimon Yotzei when he expelled Levi from Levi's Sukah? The wood is stolen! There is no enactment, for he did not toil! We can answer according to the opinion (in CM 95:1) that what is attached to the ground is like land.