1) "MITZVAH HA'BA'AH B'AVEIRAH"
OPINIONS: Rebbi Yochanan teaches that a stolen Lulav may not be used during Sukos because of the principle, "Mitzvah ha'Ba'ah b'Aveirah." However, the Gemara elsewhere derives from a different source that a stolen object may not be used for a Mitzvah. The Gemara earlier (9a) derives from the word "Lach" (Devarim 22:12) that one may not fulfill the Mitzvah of Tzitzis with a stolen garment. Similarly, the Gemara earlier (27b) derives from "Lecha" (Devarim 16:13) that one may not sit in a stolen Sukah.
When is the principle of "Mitzvah ha'Ba'ah b'Aveirah" enough to teach that a stolen object may not be used for a Mitzvah, and when is a verse (such as "Lecha") necessary? (TOSFOS 9a, DH ha'Hu)
To answer this question, it is necessary to review what exactly constitutes a "Mitzvah ha'Ba'ah b'Aveirah." There are a number of opinions in the Rishonim.
(a) The BA'ALEI HA'TOSFOS cited by the RAMBAN and RITVA (31a), and TOSFOS RABEINU PERETZ and TOSFOS SHANTZ (in Pesachim 35b) explain that the principle of "Mitzvah ha'Ba'ah b'Aveirah" applies only to an object which serves to be "Meratzeh Hash-m" (to arouse the goodwill of Hash-m to forgive a person for his misdeeds) or to praise Hash-m. This is evident from the fact that the Gemara applies the principle of "Mitzvah ha'Ba'ah b'Aveirah" in only three cases:
1. A stolen animal that is brought as a Korban is invalid. A Korban is brought to be Meratzeh Hash-m.
2. A stolen Lulav is invalid, because a Lulav is used to be Meratzeh and praise Hash-m. (See Rashi to Sukah 36b, DH Ela l'Rav.)
3. A Shofar that is Asur b'Hana'ah may not be used, because of "Mitzvah ha'Ba'ah b'Aveirah" (Rosh Hashanah 28a, according to some Rishonim). The Gemara (Rosh Hashanah 26a) says that the sounding of the Shofar is Meratzeh Hash-m.
Only when the objective of the Mitzvah is to be Meratzeh Hash-m does the principle of "Mitzvah ha'Ba'ah b'Aveirah" apply, but not for any other Mitzvah. Since the Mitzvos of Tzitzis and Sukah were not given for the purpose of being Meratzeh Hash-m, a separate verse is required to teach that stolen Tzitzis and stolen Sechach are invalid.
(b) The RITVA here (and in Pesachim 35b and Rosh Hashanah 28a) proves from the Yerushalmi that the principle of "Mitzvah ha'Ba'ah b'Aveirah" applies only when the fulfillment of the Mitzvah itself causes one to transgress an Aveirah.
For example, when one consecrates someone else's animal as a Korban, or he designates someone else's branch as a Lulav, he acquires the object through a "Shinuy ha'Shem," a change in the name of the object (from "animal" to "Korban," or from "branch" to "Lulav"), and he thereby transgresses the Isur of stealing. The very act of making the object into one of a Mitzvah was what "stole" the object. Had no Mitzvah been done, the Aveirah would not have been committed. In such a case, the Torah teaches that one does not fulfill the Mitzvah, in order that he not transgress the Aveirah. This is what the Gemara refers to as a "Mitzvah ha'Ba'ah b'Aveirah."
In contrast, when one happens to transgress an Aveirah simultaneously with the fulfillment of a Mitzvah, it is not considered a "Mitzvah ha'Ba'ah b'Aveirah." For example, when one eats Matzah of Tevel, the Aveirah that he commits is unrelated to the Mitzvah. Even if he would not fulfill the Mitzvah when he eats the Matzah of Tevel, he would still transgress the Isur of eating Tevel. Since the Mitzvah does not play a role in the transgression of the Aveirah (which he would transgress by eating the Tevel regardless of whether he fulfills a Mitzvah), the rule of "Mitzvah ha'Ba'ah b'Aveirah" does not apply.
concludes that the principle of "Mitzvah ha'Ba'ah b'Aveirah" does not
have the status of a Torah principle, because it is derived not from a verse in the Torah but from a verse in Malachi, as the Gemara here teaches. It is considered a principle derived from "Divrei Kabalah." The Rabanan have the authority to decree that if one fulfills a Mitzvah as a result of an Aveirah that he committed, he must perform the Mitzvah again. The Mitzvah mid'Oraisa, though, has been performed properly. When a specific verse teaches that a stolen object may not be used for that particular Mitzvah, it teaches that even mid'Oraisa one does not fulfill the Mitzvah with the stolen object. (The Ramban's disciple, RABEINU DAVID
, also gives this explanation.) This is also the conclusion of Tosfos (9a, DH ha'Hu), and this may be the opinion of RASHI
in Pesachim as well (see Insights to Pesachim 35:2:d
Accordingly, the verse is necessary to teach that a stolen Sukah or stolen Tzitzis is not valid mid'Oraisa.
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)
(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.)
3) BUYING A HADAS BRANCH 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.
However, if the Hadas is a stolen one, then what difference does it make if the Jew did not actually steal it? When he uses the Hadas for the Mitzvah, he performs the Mitzvah with a stolen object. Why is it not a "Mitzvah ha'Ba'ah b'Aveirah"?
TOSFOS (30a, DH Ha) understands that when a Jew receives the Hadas, two things occur -- "Ye'ush" and "Shinuy Reshus." As a result of these two stages, the impression of Gezeilah is no longer upon the object, and when it is used for a Mitzvah it is not a "Mitzvah ha'Ba'ah b'Aveirah." Once a person acquires the object, "Mitzvah ha'Ba'ah b'Aveirah" does not apply.
RASHI (DH v'Karka), however, seems to take a different approach. Rashi writes that the Gemara's teaching (that the Jewish agent should not cut the Hadas himself) applies even according to the opinion that one acquires a stolen object through Ye'ush. Even though the agent would acquire the Hadas when he cuts it, he should not cut the Hadas because he will be stealing. When he later uses it for the Mitzvah (even after Ye'ush of the original owner, at which point he acquires the stolen object), the act will still be a "Mitzvah ha'Ba'ah b'Aveirah." Rashi clearly disagrees with Tosfos and says that even after one acquires the object and it belongs to him completely, he still may not perform a Mitzvah with it, for "Mitzvah ha'Ba'ah b'Aveirah" still applies.
Rashi's opinion is difficult to understand for a number of reasons.
(a) If it is true that the Jewish agent who cuts the Hadas from the Nochri's field commits Gezeilah if the land really belongs to a Jew, and as a result he may not use that Hadas for a Mitzvah, then why does the Gemara suggest that the agent himself could cut it and acquire it with "Shinuy Ma'aseh" or "Shinuy ha'Shem"? At the moment that he cuts it he commits an Aveirah of Gezeilah; he should be prohibited from cutting the Hadas because of the prohibition against stealing! Similarly, why does the Gemara suggest that the agent should cut it and give it to a customer, who will then acquire the Hadas through "Shinuy Reshus"? While that method enables the customer to use the Hadas, it still does not permit the agent to cut it -- he still steals when he cuts the Hadas! How can the Gemara permit him to do an Aveirah? (PNEI YEHOSHUA)
(b) Even if the Nochri cuts it and then gives it to the Avankeri, the Avankeri should still be considered as though he is stealing the Hadas. Since the Gemara maintains that one does not acquire the stolen object through Ye'ush, the Kinyan (change of possession) of the Hadas occurs only at the time that the Avankeri buys it from the Nochri. When he buys the Hadas, the Avankeri removes the Hadas from the possession of the original owner. Consequently, the Avankeri is still stealing, and he should not be able to use the Hadas for the Mitzvah because it is a "Mitzvah ha'Ba'ah b'Aveirah."
(This question is difficult only according to Rashi's opinion that even after one has acquired the item the problem of "Mitzvah ha'Ba'ah b'Aveirah" still applies. According to the opinion of Tosfos, once the Aveirah has been committed and the person has acquired the object, it is no longer considered a "Mitzvah ha'Ba'ah b'Aveirah.")
(c) If "Mitzvah ha'Ba'ah b'Aveirah" applies even after one acquires the object as Rashi implies, then why does the Gemara say that the agent should be able to do the Mitzvah because he acquires the Hadas through "Shinuy Ma'aseh" or "Shinuy ha'Shem"? Even if there is a Shinuy, he still should not be permitted to use the item for a Mitzvah because it is a "Mitzvah ha'Ba'ah b'Aveirah." (MAHARSHA)
(d) Why does Rashi attempt to explain the Gemara according to the opinion that one acquires a stolen object through Ye'ush alone? The Gemara clearly says that when a Nochri cuts the Hadas, the original owner has Ye'ush when the Hadas is in the Nochri's hands, and a Shinuy Reshus occurs when the Hadas enters the hands of the Jewish agent. The fact that the Gemara says that both are necessary clearly implies that one does not acquire a stolen object through Ye'ush alone, but a Shinuy (change) in the object is also needed. (If Ye'ush alone works, then the Gemara should say simply that the Nochri should cut the Hadas and not the Jewish agent, so that the Jew does not do an Aveirah.) The Gemara clearly follows the opinion that one does not acquire an object through Ye'ush alone. Why, then, does Rashi explain the Gemara according to the opinion that one acquires through Ye'ush?
(a) When the Gemara suggests that the Jewish agent should cut the Hadas and acquire it through a "Shinuy Ma'aseh" or "Shinuy ha'Shem," the Gemara is not bothered by the fact that the Jew might be stealing. Since the Nochri is in possession of the field, his Chazakah enables us to assume that it belongs to him. Even though it is true that many Nochrim steal land from Jews, we do not assume that this land was stolen, because the Nochri is the "Machzik" (and if anyone has a claim against him, the burden of proof is on the claimant -- "ha'Motzi me'Chaveiro Alav ha'Re'ayah").
However, with regard to the fulfillment of the Mitzvah of Arba'as ha'Minim, we do take into account the possibility that the Hadas was cut from stolen land. Since it is a question of the fulfillment of a Mitzvah, the concern that the object was stolen must be taken into account. Hence, even though a doubt with regard to monetary laws (Safek Dinei Mamonos) is governed by the normal rules of such a doubt (we assume that the Machzik is the owner until proven otherwise and we apply "ha'Motzi me'Chaveiro Alav ha'Re'ayah"), with regard to a doubt in the laws of Isur v'Heter (there is a doubt whether one fulfills the Mitzvah or not) we apply the laws of a Safek Isur (and Safek Isur l'Chumra; see Bava Basra 81b).
(The difference between the issue of whether one is considered to have stolen an object and the issue of whether one is considered to have fulfilled a Mitzvah with the object can be expressed in other ways. For example, while a doubt with regard to monetary laws (Gezeilah) is governed by the normal rules of such a doubt (Chazakah, Rov, etc.), the Rabanan did not want to rely on those laws with regard to the fulfillment of the Mitzvah of Arba'as ha'Minim. They wanted the Mitzvah to be fulfilled in the best way possible. Therefore, even though, m'Ikar ha'Din, one may rely on the Chazakah that the land is probably not stolen, if there is some way to avoid the possibility that it is stolen, then one should avoid it in order to fulfill the Mitzvah in the best way possible. The PNEI YEHOSHUA suggests a similar approach.)
Accordingly, the Gemara is not concerned with the possibility that the agent will be stealing from a Jew if he cuts the Hadas branch. With regard to the doubt in monetary law (who owns the field), the Chazakah tells us that the field belongs to the Nochri and not to a Jew. The only concern is the doubt that one will perform a "Mitzvah ha'Ba'ah b'Aveirah" with the branch.
(b) Even if the Gemara's focus is only on the issue of the proper fulfillment of the Mitzvah, why does the Gemara assume that if the Jewish agent acquires the Hadas through Shinuy Reshus, then it is not a "Mitzvah ha'Ba'ah b'Aveirah"? According to Rashi, who says that "Mitzvah ha'Ba'ah b'Aveirah" applies even after one acquires the object, even if one acquires it through Shinuy Reshus he still commits an Aveirah of Gezeilah when he makes a Kinyan on an object that is not his (or the seller's), and thus the Mitzvah he performs with the object is still a "Mitzvah ha'Ba'ah b'Aveirah"!
The answer to this question is that Rashi follows his own opinion as expressed in many places in the Gemara (Bava Metzia 26b, Sanhedrin 2a, Sanhedrin 57a, Yoma 74a, Rosh Hashanah 22a, and elsewhere). Rashi writes that, mid'Oraisa, one transgresses the prohibition of Gezeilah only when he seizes the object directly from the grasp of the owner (or from the owner's property). In contrast, if one takes the object after it has already been removed from the owner's property (for example, the owner lent it to his friend, and his friend decided to keep it, or the owner lost it in Reshus ha'Rabim and the finder decided to keep it), he does not transgress the Isur d'Oraisa of Gezeilah.
In the case of the Gemara here, the object that might have been stolen is presently in the hands of the Nochri and no longer in the possession of the original owner. When the agent takes it from the Nochri, he does not transgress the Isur d'Oraisa of Gezeilah. Although one is prohibited mid'Rabanan from stealing in such a manner, the transgression of an Isur d'Rabanan does not impede the performance of a Mitzvah because of "Mitzvah ha'Ba'ah b'Aveirah." (Why, though, is the Jewish agent permitted to take the object from the Nochri, if there is a chance that he is stealing from another Jew? As we explained earlier, out of doubt we are not concerned that an act of Gezeilah is being done.)
However, in a case in which the Jewish agent picks the Hadas and then sells it to another Jew, why is the Mitzvah not considered a "Mitzvah ha'Ba'ah b'Aveirah" for the second Jew who buys it from the agent? It is possible that the agent committed a serious transgression of Gezeilah d'Oraisa when he picked the Hadas directly from the property of another Jew, and thus any Mitzvah performed with that object should be a "Mitzvah ha'Ba'ah b'Aveirah."
It must be that Rashi maintains that "Mitzvah ha'Ba'ah b'Aveirah" applies only to the person who committed the Aveirah. If one person acquired the object through an Aveirah, and another person used that object to do a Mitzvah, there is no problem of "Mitzvah ha'Ba'ah b'Aveirah." (This is implied by Rashi at the beginning of 30a, where he writes that "Mitzvah ha'Ba'ah b'Aveirah" means that one may not fulfill a Mitzvah that is accomplished by an Aveirah that he commits.) On the other hand, the Jew does need to be concerned about the requirement of "Lachem" (in order to fulfill the Mitzvah of Arba'as ha'Minim, he must own the Hadas); he must make a Kinyan on the object so that it belongs to him. That problem is solved by the Kinyan of Shinuy Reshus, which makes the Hadas belong to him ("Lachem"). (M. KORNFELD)
(c) The MAHARSHA explains that even though Rashi says that "Mitzvah ha'Ba'ah b'Aveirah" applies after Ye'ush according to the opinion that one acquires an object with Ye'ush alone, nevertheless after one acquires the object through Ye'ush and Shinuy Ma'aseh or Shinuy ha'Shem, the principle of "Mitzvah ha'Ba'ah b'Aveirah" no longer applies.
The simplest way to understand this assertion is that when there is a second step of Kinyan done with the object, the object becomes far removed from the original act of Gezeilah, and thus "Mitzvah ha'Ba'ah b'Aveirah" does not apply.
An alternative way to understand the Maharsha's answer is that when there is Shinuy Ma'aseh or Shinuy ha'Shem, the object itself has been altered. In such a case, it is considered like an entirely new object, and it is not the same object that was stolen. It is not that the Shinuy makes the object so far removed from the act of Gezeilah that the Mitzvah that is done with the object is not considered a Mitzvah done as a result of an Aveirah, but rather it makes the object like a new object altogether. (CHASAM SOFER, KEHILOS YAKOV)
This way of understanding does not explain why a Shinuy Reshus solves the problem of "Mitzvah ha'Ba'ah b'Aveirah," because nothing in the object changes in the case of a Shinuy Reshus (rather, only the hands that are holding it have changed). However, as explained earlier, the reason why Shinuy Reshus avoids the problem of "Mitzvah ha'Ba'ah b'Aveirah" is because the principle of "Mitzvah ha'Ba'ah b'Aveirah" applies only to the person who stole the object.
(d) Perhaps Rashi maintains that the Halachah is that one does acquire an object with Ye'ush alone. Accordingly, Rashi prefers that the Gemara here follow the opinion which is the Halachic ruling and not follow the opinion of just a few Amora'im. Thus, Rashi explains that when the Gemara says that the Nochri should pick the Hadas, it follows both opinions -- the opinion that one acquires the object with Ye'ush alone, and the opinion that one acquires the object only with Ye'ush and a Shinuy. Even if Ye'ush alone does not work, after the Nochri picks the Hadas the Jewish agent acquires it because there is a Shinuy Reshus, and thus the agent can fulfill the Mitzvah with the Hadas (because it qualifies as "Lachem"). This explains why the Gemara adds the element of Shinuy Reshus; the Gemara wants to explain why the Jewish agent may use the Hadas according to the opinion that one does not acquire the object with Ye'ush alone. The Gemara also means that even if one does acquire through Ye'ush, the agent must still have the Nochri pick the Hadas so that the agent does not commit a possible transgression of Gezeilah (even though it will be considered "Lachem" even if he picks it, because Ye'ush suffices to be Koneh).