Siman - Succah Daf 30
- The source and a mashal for מצוה הבאה בעבירה
Rebbe Yochanan said in the name of Rebbe Shimon bar Yochai that the reason it is prohibited to use a stolen lulav is because it is a מצוה הבאה בעבירה – a mitzvah that is brought about through doing an aveirah, which is based on a passuk that lists stolen animals and lame animals that are unfit to be offered. מה פסח לית ליה תקנתא אף גזול לית ליה תקנתא – Just as a lame animal cannot be repaired, as the blemish renders it permanently unfit to be offered, so too a stolen one cannot be repaired לא שנא לפני יאוש ולא שנא אחר יאוש – and it makes no difference if it is before the original owner has abandoned hope of retrieving it, or afterwards.
Related to this, Rebbe Yochanan said in the name of Rebbe Shimon bar Yochai, what is the meaning of that which is written, "כי אני ה' אהב משפט שנא גזל בעולה" – For I am Hashem, Who loves justice, Who hates robbery in an olah offering? This may be explained by means of a mashal of a king passing through a toll booth in his own country, who says to his servants to pay the toll. When they asked him what the point was, since all of the revenue goes to him, he replied that all the travelers learn from him by example, that they should not try to avoid the toll. Similarly, Hashem says in regard to not wanting a stolen olah, ממני ילמדו בני ויבריחו עצמן מן הגזל – Let my sons learn from Me, so that they will distance themselves from theft.
- Rebbe Yitzchak bar Nachmani holds one can use a stolen lulav from the second day on
The Gemara brings Rebbe Ami who agrees with Rebbe Yochanan that one is not permitted to use a stolen lulav because it is a מצוה הבאה בעבירה, but then brings a statement from Rebbe Yitzchak bar Nachmani who said in the name of Shmuel, that a stolen lulav is only passul on the first day of Yom Tov אבל ביום טוב שני מתוך שיוצא בשאול יוצא נמי בגזול – but on the second day of the chag and thereafer, the rule is that since a person can be yotzei with a borrowed lulav, he can be yotzei with a stolen one. Rashi explains that Rebbe Yitzchak bar Nachmani holds that the only reason a stolen lulav cannot be used on the first day is the Torah’s requirement that it be his own property. Just as on the second day he may use a borrowed lulav, he may use a stolen one.
- Rav Huna’s guidance to the merchants regarding selling hadasim
Rav Huna said to the merchants who sold the dalet minim, that when you buy myrtle twigs to be used for hadasim, they should not cut them from the trees themselves, but rather let the nochrim cut the twigs and give them to you, the reason being, סתם עובדי כוכבים גזלני ארעתא נינהו – nochrim generally steal the land on which the hadasim trees grow, וקרקע אינה נגזלת – but land cannot be “stolen.” Meaning, that land always remains the original owner’s property, even if he abandons hope of recovering it. If they themselves cut them from the trees, they will be stealing them and will be unable to use them as a mitzvah. Therefore, they should let the nochrim cut the twigs so that there should be יאוש בעלים in the nochri’s hands ושינוי הרשות – and a change of jurisdiction when the twigs are placed in the merchants’ hands. The twigs will then be fit for use for the performance of the mitzvah. The Gemara asks why this procedure was necessary. Even if the merchants cut the twigs from the trees, thenthere would be יאוש בעלים in the merchants’ hands and שינוי הרשות in the buyers’ hands? The Gemara answers that Rav Huna’s ruling is necessary only regard to the twigs that will be used for the merchants’ own hoshana bundles.
