1) HOW TO STEAL A SUKAH
QUESTION: The Gemara says that according to the Rabanan, one who steals a Sukah (by pushing its owner out) or builds a Sukah in Reshus ha'Rabim is permitted to use that Sukah. The Rabanan maintain that land cannot be stolen ("Karka Einah Nigzeles"), and thus the Sukah is not considered a stolen Sukah. In addition, if one steals wood and builds it into his Sukah, he may also use that Sukah even though it is built of stolen materials. Since he effected a change in the object that he stole ("Shinuy Ma'aseh" or "Shinuy ha'Shem"), he acquired the wood that he stole and fulfills the Mitzvah with this Sukah. Alternatively, the enactment of "Takanas ha'Shavim" puts the wood into his possession (the Rabanan made this enactment in order to exempt a person from the obligation to return the actual object that he stole and built into his house, in order to make it easier for him to repent).
The Rabanan (27b) derive from the verse that a stolen Sukah is invalid. RASHI here asks what case the Rabanan refer to when they teach that a stolen Sukah is invalid. In every case of a stolen Sukah, the Sukah either becomes the property of the thief or it cannot be stolen in the first place, and the thief therefore fulfills the Mitzvah in that Sukah.
Rashi answers that the only case of a stolen Sukah which is invalid is a Sukah that is built upon a boat or an animal (a portable Sukah). Such a Sukah can be stolen as one whole unit from the ground on which it stands. There is no Shinuy Ma'aseh or Shinuy ha'Shem in such a case (because nothing in the stolen object has changed), and "Takanas ha'Shavim" does not apply (because the thief did not exert considerable effort into constructing a Sukah, as it was a Sukah already at the time he stole it). Since it is not land, it can be stolen.
Rashi's case includes the theft of any fully-built Sukah that is not attached to the ground. For example, if Reuven builds a Sukah in Shimon's courtyard and the Sukah is not attached to the ground, and Shimon throws him out of his Sukah, Shimon has committed a theft. As a result, the Sukah is considered stolen and Shimon cannot fulfill the Mitzvah with it. (The reason why Rashi mentions only a Sukah on a wagon is because that is the most common case of a stolen Sukah.)
TOSFOS (DH Aval) suggests that there is a case of a stolen Sukah in which the Sukah is attached to the ground. If Reuven builds a Sukah on Shimon's land and attaches it to the ground, and then Shimon throws Reuven out of the Sukah, the Sukah is considered stolen and Shimon cannot fulfill the Mitzvah with it. Why, though, is this Sukah, which is attached to the land, not considered like land itself which cannot be stolen?
Tosfos answers that the reason land cannot be stolen is because it is "b'Chezkas Ba'aleha" -- land cannot be removed from the owner's property (because it is his property), and thus the act of stealing land does not effect a Kinyan. In the case of a stolen Sukah, the land beneath the Sukah is Shimon's land; if Shimon throws Reuven out, he successfully "steals" the Sukah, because it is outside of Reuven's property (the land on which the Sukah is built is not Reuven's).
Why does Rashi not give this case of a Sukah Gezulah, a stolen Sukah?
ANSWER: REBBI AKIVA EIGER asks a strong question on Tosfos' case of a stolen Sukah. According to Tosfos, there seems to be no source in the Torah for the principle that "land cannot be stolen" ("Karka Einah Nigzeles"). Rather, it is merely the physical impossibility that precludes theft of land. Land cannot be picked up and placed in somebody else's domain.
According to Tosfos, what does the Gemara in Bava Kama (117b) mean when it says that there is no theft of Avadim (slaves), because a verse compares Avadim to land? There is, in theory, theft of land; it is just that practically there is no way to steal it (if a way to steal land -- such as in the case of Tosfos -- would be found, then indeed land could be stolen). Since, in practice, there is a way to steal Avadim, the law of theft should apply to Avadim!
Moreover, we may ask that the Gemara there in Bava Kama quotes the Chachamim who derive from a verse that the law of Gezeilah does not apply to land ("land cannot be stolen"). From the same verse, they derive that there is no Gezeilah of contracts (Shtaros). Although Shtaros certainly can be stolen in practice, the Gezeiras ha'Kasuv excludes them from the law of Gezeilah. Why, then, does Tosfos say that land is different, and that the reason why it cannot be stolen is because it is not practically possible to steal land? It is clear from the Gemara there that the reason why land cannot be stolen is not because of the practical impossibility, but because of a Gezeiras ha'Kasuv. (Consequently, in Tosfos' case, the Sukah should not be considered stolen, because land cannot be stolen.)
Also, if the reason why the law of Gezeilah does not apply to land is because, practically, it is impossible to steal it, then what does Rebbi Eliezer in Bava Kama mean when he says that land can be stolen? If land cannot be stolen because of the practical impossibility, then how can there be an opinion that land can be stolen ("Karka Nigzeles")?
Tosfos expresses his view about the impossibility of stealing land in many places. In each place, Rebbi Akiva Eiger asks similar questions (see, for example, Bava Metzia 61a, Tosfos DH Ela). The PNEI YEHOSHUA (Bava Metzia ibid.) answers these questions. He explains that Tosfos means that there are two parts to the prohibition of Gezeilah. The first part is the prohibition (the Lav) of "Lo Tigzol" -- "Do not steal." The second part of Gezeilah is the Kinyan created by the act of Gezeilah. When a person steals an item, a certain type of Kinyan takes effect which obligates him to return the stolen object, or to pay for it if it becomes lost or damaged. The Kinyan may also cause the thief to acquire it through Ye'ush, through making a Shinuy in the object, or by giving it to another person.
Tosfos maintains that the Gezeiras ha'Kasuv (mentioned in Bava Kama) refers only to the Kinyanim effected by Gezeilah. That is, if a person steals land, those Kinyanim do not apply. Consequently, if a river overflows and washes away the soil of the stolen field, the thief does not have to pay the owner for the loss (according to the Chachamim there who maintain "Karka Einah Nigzeles"). No Kinyan can be made on a stolen field which would obligate the thief to pay. Even if the thief performs an act of Chazakah (such as digging) on the field, that does not effect a Kinyan; the field is not considered stolen and the thief has no responsibilities towards that land. (The verse from which the Chachamim in Bava Kama derive that land cannot be stolen refers to the obligations created by the Kinyan of Gezeilah.)
However, with regard to the Lav of "Lo Tigzol," if a person finds a practical way to steal land, he will transgress the prohibition against stealing. (The physical act of stealing is defined as the removal of an object from the property of its owner.) However, as mentioned above, the thief will not be obligated to compensate the owner if the land is destroyed, because the Gezeiras ha'Kasuv teaches that he makes no Kinyan Gezeilah on land. That is why Tosfos says that there is Gezeilah for land with regard to whether or not it is considered a "Sukah Gezulah" (such as in the case of the Sukah that Reuven built on Shimon's land). The Gezeiras ha'Kasuv does not address the applicability of the Lav of "Lo Tigzol" to land. Similarly, if one steals Avadim, he also transgresses the Lav of "Lo Tigzol" but he does not become obligated by the responsibilities created by the Kinyanim of Gezeilah.
Rebbi Eliezer (in Bava Kama), who says that land can be stolen ("Karka Nigzeles"), maintains that if one makes a Kinyan by performing an act of Chazakah on someone else's land, such a Kinyan is also able to effect Gezeilah. It will obligate the thief to return the land if it is damaged by a flood, and it will cause the property to become the thief's through Ye'ush and Shinuy. A Chazakah works to create the Kinyanim of Gezeilah, and thus it also works to make the thief liable for "Lo Tigzol." (The Chazakah removes the land from the property of its owner by causing it to be the thief's property through Ye'ush and Shinuy.)
The CHAZON YECHEZKEL (Sukah 1:2) points out that the Pnei Yehoshua's explanation for Tosfos in Bava Kama also answers the question of Rebbi Akiva Eiger on Tosfos here. Tosfos does not mean that one can make Kinyanei Gezeilah on someone else's Sukah that is built on his land. Rather, Tosfos means only that he transgresses the Lav of "Lo Tigzol" and thus the Sukah is considered a stolen Sukah. The thief will not be able to use the Sukah for a Mitzvah, both because it is not his ("Lachem"), and because it is a "Mitzvah ha'Ba'ah b'Aveirah" (see Tosfos 9a, DH ha'Hu).
This explains why Rashi does not mention Tosfos' case of a stolen Sukah. Perhaps Rashi maintains that the Gezeiras ha'Kasuv that teaches that land cannot be stolen applies not only to the Kinyanim of Gezeilah, but also to the Lav of Gezeilah. Therefore, if Shimon throws Reuven out of the Sukah that Reuven built on Shimon's land, Shimon does not transgress "Lo Tigzol," and the Sukah is not considered a stolen Sukah (just as stolen land is not considered stolen). This is why Rashi does not mention this case as an example of a stolen Sukah.
2) A LULAV OF AVODAH ZARAH
Rava rules that one should not use a Lulav of Avodah Zarah for the Mitzvah of Arba'as ha'Minim, but b'Di'eved he fulfills his obligation with it. The Gemara challenges Rava's ruling from the Mishnah (29b) that states that one may not use a Lulav of an Asheirah tree, even b'Di'eved. The Gemara answers that the Mishnah refers specifically to "Asheirah d'Moshe" (see Background to the Daf
RASHI explains that when Rava says that one may not use a Lulav of Avodah Zarah l'Chatchilah, he refers to a Lulav "which was used to serve the Avodah Zarah" ("Meshamshei Avodah Zarah"), such as to sweep and clean the ground in front of it, or to a Lulav which is thrown at the Avodah Zarah as part of the sacramental ritual (presumably Rashi refers to a Lulav of "Tikroves Avodah Zarah"). The Mishnah, though, refers to an "Asheirah d'Moshe," which, Rashi explains, refers to the Asheiros in Eretz Yisrael at the time the Jewish people entered the land. Those Asheiros had to be burned even though they belonged to Nochrim. The Gemara in Avodah Zarah says that even though the Avodah Zarah of a Nochri can become Batel (that is, if the Nochri does a denigrating act with it, such as breaking it or abusing it, the Avodah Zarah becomes permitted for use and is no longer Asur b'Hana'ah), the Avodah Zarah of the Nochrim in Eretz Yisrael at the time the Jews entered the land could not be become Batel. Therefore, a Lulav from such an Asheirah tree may not be used, even b'Di'eved.
There are several difficulties with Rashi's explanation here.
(a) Why does Rashi explain that the type of Lulav of Avodah Zarah to which Rava refers (when he says that one should not use it l'Chatchilah, but b'Di'eved one may use it) is a Lulav of "Meshamshei" or "Tikroves" of Avodah Zarah? Perhaps Rava refers to any type of Lulav of Avodah Zarah, even a Lulav which was actually worshipped as an idol (which became Asur b'Hana'ah just like the Asheirah mentioned in the Mishnah).
It is clear why Rashi does not explain that Rava refers to a Lulav which a Jew worshipped. Such a Lulav certainly is not valid for the Mitzvah, because it must be burned, and the principle of "Katusei Mikatas Shi'urei" teaches that any object that must be burned is considered already burned and reduced to ashes, and consequently it does not have the minimum size necessary for the Mitzvah. Why, though, does Rashi not explain simply that Rava refers to a Lulav which a Nochri worshipped? Since it is not an "Asheirah d'Moshe," the rule of "Katusei Mikatas Shi'urei" should not apply, because it is possible that the Nochri will be Mevatel the object's status as Avodah Zarah and make it permitted. Why does Rashi choose to explain that Rava refers specifically to "Meshamshei" or "Tikroves" of Avodah Zarah?
(b) Rashi explains that "Katusei Mikatas Shi'urei" does not apply to "Meshamshei" and "Tikroves" of Avodah Zarah, because those items do not have to be burned. The simple understanding of this is that the Gemara in Avodah Zarah (51b) says that "Meshamshei Avodah Zarah" do not have to be burned, but rather they may be buried. "Katusei Mikatas Shi'urei" applies only to an object which must be burned, but not to an object which may be buried. Moreover, since the actual object of Avodah Zarah of a Nochri can be annulled and become permitted, certainly the "Meshamshei Avodah Zarah" can be annulled and need not be burned.
However, "Tikroves Avodah Zarah" do need to be burned and cannot become Batel, and the rule of "Katusei Mikatas Shi'urei" certainly applies to it (Yevamos 103b). Why, then, does Rashi say that, b'Di'eved, one fulfills the Mitzvah of Lulav with "Tikroves Avodah Zarah"? The Lulav is "Katusei Mikatas Shi'urei" and should be invalid.
(c) The Acharonim question Rashi's explanation from the Gemara in Avodah Zarah (50b). The Gemara there says that when a stick is thrown in front of an idol, it does not become "Tikroves Avodah Zarah." The act of throwing a stick in front of an idol is not comparable to the act of pouring wine in front of an idol, which does make the wine "Tikroves," because an object becomes "Tikroves" only when it is offered for Avodah Zarah in the same way that Korbanos or Nesachim are offered or sprinkled on the Mizbe'ach in the Beis ha'Mikdash. The acts of Shechitah, Nisuch, and Zerikah involve breaking an object into smaller pieces (in Shechitah, the neck of the animal is cut; in Nisuch and Zerikah, individual drops are separated from the collection of liquid). The Gemara refers to this type of act as "Zerikah ha'Mishtaberes," tossing an object which becomes broken as a result. A solid object that is thrown whole before an idol does not become "Tikroves Avodah Zarah."
The act of throwing a stick in front of Avodah Zarah does not resemble any offering in the Beis ha'Mikdash (it is not a "Zerikah ha'Mishtaberes") and therefore the stick does not become "Tikroves." Why, then, does Rashi say that the stick becomes "Tikroves Avodah Zarah" when one throws it in front of an idol? It should not become prohibited at all! (KAPOS TEMARIM, RASHASH. The RASHBA in Yevamos 103b asks a similar question on Rashi.)
(d) Why does the Gemara answer that the Mishnah refers to "Asheirah d'Moshe" -- an Asheirah that existed at the time that Eretz Yisrael was conquered, which cannot be annulled? The Gemara merely needs to say that the Mishnah refers to an Asheirah of a Jew. An Asheirah of a Jew cannot be annulled, and thus it may not be used for the Mitzvah because it is "Katusei Mikatas Shi'urei." (This indeed is the way TOSFOS and others explain the answer of the Gemara: "Asheirah d'Moshe" means simply an Avodah Zarah of a Jew.)
(e) The Gemara's question on Rava is based on the assumption that the Asheirah which the Mishnah discusses belonged to a Nochri. The Avodah Zarah of a Nochri, however, can be annulled through Bitul. Accordingly, the Gemara asks why there should be a difference between the Asheirah of a Nochri and a Lulav of Avodah Zarah.
According to Rashi, who says that a Lulav of Avodah Zarah is one that is "Meshamshei" or "Tikroves" of Avodah Zarah, what is the Gemara's question on Rava from the Mishnah? Both the Mishnah and Rava may refer to an Asheirah or other Avodah Zarah of a Nochri which can become Batel. Nevertheless, before Bitul the rule of "Katusei Mikatas Shi'urei" applies, because the Avodah Zarah of a Nochri indeed must be burned as long as Bitul has not been done. The difference between the Mishnah and Rava is that the Asheirah mentioned in the Mishnah, which was actually worshipped, must be burned and is "Katusei Mikatas Shi'urei." Rava, though, refers to a Lulav that merely was used in the service of an Avodah Zarah, and since it does not need to be burned (but only buried) it is not "Katusei Mikatas Shi'urei."
(a) Why does Rashi not explain that the Lulav of Avodah Zarah which Rava discusses is simply a Lulav that was worshipped as Avodah Zarah?
TOSFOS (DH ba'Asheirah) and other Rishonim question Rava's statement from the Gemara in Avodah Zarah (42a). The Gemara there states that when a Jew picks up a Nochri's Avodah Zarah, the Nochri can no longer annul it. The moment the Jew picks it up, he acquires the object and it becomes the Avodah Zarah of a Jew, and the Avodah Zarah of a Jew cannot be annulled. Why, then, does Rava say that a person fulfills the Mitzvah (b'Di'eved) with a Lulav of Avodah Zarah? If it is a Jew's Avodah Zarah, then it is "Katusei Mikatas Shi'urei." If, on the other hand, it is a Nochri's Avodah Zarah (to which "Katusei Mikatas Shi'urei" does not apply), the Jew still cannot fulfill the Mitzvah with it (even b'Di'eved), because in order to fulfill the Mitzvah he must pick it up, but when he picks it up it thereby becomes his and "Katusei Mikatas Shi'urei" applies.
Tosfos and the Rishonim answer that Rava allows one to use such a Lulav only if the one who takes it has in mind not to acquire it for himself. However, this does not suffice to explain why one may use such a Lulav on the first day of Sukos. On that day, there is a requirement that the Lulav belong to the Jew who uses it ("Lachem"; this requirement applies mid'Oraisa on the first day of Sukos). One should not be able to fulfill the Mitzvah of Lulav on the first day of Sukos with a Lulav of Avodah Zarah, because if it belongs to him, then it is "Katusei Mikatas Shi'urei" since it no longer belongs to the Nochri.
This question bothered Rashi as well. In order to answer this question, Rashi explains that Rava refers specifically to "Meshamshei Avodah Zarah." Rashi proposes that "Meshamshei Avodah Zarah" differ from an object actually worshipped as Avodah Zarah, in that even after a Jew acquires "Meshamshei Avodah Zarah" of a Nochri, they can still be annulled. (The reason why "Katusei Mikatas Shi'urei" does not apply to "Meshamshei" is not because they are buried and not burned (as suggested above in question (b)). Rather, the reason is because "Meshamshei" can be annulled and do not remain eternally prohibited. Support for this approach is cited later in (e).)
Why, though, are "Meshamshei" different from Avodah Zarah itself? Why should they be subject to Bitul even after a Jew acquires them? The RA'AVAD (in Avodah Zarah 52a, and in Sefer Lulav ha'Gadol, as explained by the RAMBAN and ME'IRI) explains that while the Avodah Zarah itself is in the hands of the Nochri, the Nochri can still annul the Avodah Zarah. When the Nochri annuls the Avodah Zarah, all of the "Meshamshei" become annulled as well, because they are only secondary to the Avodah Zarah itself, even if they are in the hands of a Jew. In this manner, even "Meshamshei" that presently belong to a Jew can be annulled.
For this reason, Rashi explains that Rava refers to "Meshamshei Avodah Zarah."
(b) Since a Lulav of "Tikroves Avodah Zarah" remains forbidden forever and cannot be annulled, it is "Katusei Mikatas Shi'urei" and one should not be able to fulfill the Mitzvah with it (even b'Di'eved). Why does Rashi say that one fulfills the Mitzvah with such a Lulav?
The third question answers the second one. The act of throwing a stick in front of Avodah Zarah does not resemble any form of service performed in the Beis ha'Mikdash, and therefore a Lulav that was thrown in front of Avodah Zarah is not considered "Tikroves Avodah Zarah." The person who throws the stick is Chayav Misah for worshipping Avodah Zarah if the idol is normally served by throwing sticks at it. However, the stick itself does not become prohibited. Since it does not become forbidden as "Tikroves," it does not need to be burned, and thus it is not "Katusei Mikatas Shi'urei" and it may be used (b'Di'eved).
(c) However, if the Lulav does not become forbidden by being thrown at the idol, then why does Rava say that it may not be used for the Mitzvah l'Chatchilah?
The CHASAM SOFER cites the RITVA in Avodah Zarah (50a) who says in the name of the RA'AVAD that even if a stick thrown at Avodah Zarah does not become "Tikroves Avodah Zarah," it is not better than "Meshamshei Avodah Zarah" (such as an item used to sweep and clean in front of the idol) which served some menial purpose on behalf of the Avodah Zarah. It therefore is Asur b'Hana'ah because it has a status of "Meshamshei Avodah Zarah," but it can still be annulled like any other "Meshamshei Avodah Zarah" of a Nochri.
(The SHA'AR HA'MELECH (Hilchos Sukah 8:1, DH v'Hineh) cites the TALMIDEI RABEINU YONAH (in Avodah Zarah 2b) who also write that an object offered to Avodah Zarah becomes Asur b'Hana'ah even if it was offered to the Avodah Zarah in a way that is not used in the Beis ha'Mikdash. Presumably their statement is based on the Ra'avad's logic. This opinion is also mentioned by the ME'IRI in Avodah Zarah 51b, DH Mah she'Amarnu, and the RAMBAN there.)
This is what Rashi means when he says that a Lulav that one threw or waved before an idol is forbidden. Since it was used to serve the idol, it became "Meshamshei Avodah Zarah."
(d) Why does the Gemara not answer that the Mishnah refers to the Asheirah of a Jew (which cannot be annulled)?
The Gemara understands that since the Mishnah does not specify what type of Asheirah is invalid as a Lulav, presumably it refers to the standard type of Asheirah, that of a Nochri. This is why the Gemara does not say simply that the Mishnah refers to the Asheirah of a Jew.
The Gemara asks that an Asheirah of a Nochri can be annulled and thus it should be valid (b'Di'eved) for the Mitzvah from the second day and onward, as long as the Jew who uses it for the Mitzvah does not intend to acquire it.
The Gemara answers that there is a type of Asheirah of a Nochri which does not have Bitul and which indeed is forbidden forever, to which "Katusei Mikatas Shi'urei" applies: the Asheirah of the Nochrim at the time the Jews entered Eretz Yisrael.
(e) Why does the Gemara not answer simply that the Mishnah refers to a Lulav of a Nochri which was worshipped itself as Avodah Zarah (and which must be burned as long as Bitul has not been done), and that Rava refers to "Meshamshei Avodah Zarah" (which do not need to be burned)? Why does the Gemara say that the Mishnah specifically refers to a type of Avodah Zarah for which Bitul is ineffective?
Many Rishonim (including TOSFOS in Yevamos (104a) and RABEINU AVRAHAM MIN HA'HAR here) prove that any object that is Asur b'Hana'ah forever, even though it does not need to be burned, is considered "Katusei Mikatas Shi'urei" (since there is nothing to do with it but burn it). This apparently is Rashi's opinion here as well. (See also Rashi, end of Yevamos 103b.) Therefore, if "Katusei Mikatas Shi'urei" applies to Avodah Zarah before Bitul, then it must apply to "Meshamshei Avodah Zarah" before Bitul as well. There is no choice but to explain that it applies to neither, because both can be annulled. "Katusei Mikatas Shi'urei" applies only to objects that remain forbidden forever and cannot be annulled (as explained in (d) above). Therefore, when the Mishnah states that one cannot fulfill the Mitzvah with a Lulav from an Asheirah tree (because of "Katusei Mikatas Shi'urei"), it must refer to the type of Asheirah which cannot be salvaged by Bitul.