THOUGHTS ON THE DAILY DAF
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Rosh Kollel: Rav Mordecai Kornfeld
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1) "MITZVAH HA'BA'AH B'AVEIRAH"
OPINIONS: Rebbi Yochanan states that a stolen Lulav may not be used during Sukos because it is a "Mitzvah ha'Ba'ah b'Aveirah." Yet elsewhere, the Gemara finds it necessary to learn from the word "Lachem" that a stolen object cannot be used for a Mitzvah (e.g. Sukah 9a with regard to Tzitzis; 27b with regard to Sukah). When do we apply that rule of "Mitzvah ha'Ba'ah b'Aveirah," and when is it not applies an a verse ("Lachem") is necessary to teach that a stolen object disqualifies a Mitzvah?
2) STEALING FROM A "NOCHRI"
To answer this question, we must better understand what 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 SHANZ (in Pesachim 35b) explain that the principle of "Mitzvah ha'Ba'ah b'Aveirah" applies only to an object with which an Aveirah was once done if the Mitzvah now being done serves to be *Meratzeh* Hashem (i.e. to ask Hashem for forgiveness) or to praise Hashem. The Gemara applies the principle of "Mitzvah ha'Ba'ah b'Aveirah" to disqualify a Mitzvah in only three instances. (1) A stolen animal that is brought as a Korban is invalid. A Korban is brought to be Meratzeh Hashem. (2) A stolen Lulav is invalid, because a Lulav is used to be Meratzeh and Mehalel Hashem (see Rashi, Sukah 36b, DH Ela l'Rav). (3) A Shofar that is Asur b'Hana'ah cannot be used because of "Mitzvah ha'Ba'ah b'Aveirah" (Rosh Hashanah 28a, according to some Rishonim), because a Shofar, too, is meant to be Meratzeh Hashem (Rosh Hashanah 26a). Only where the role of the Mitzvah is to be Meratzeh Hashem does the principle of "Mitzvah ha'Ba'ah b'Aveirah" apply, but not for any other Mitzvah.
(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 *performance of the Mitzvah itself causes one to transgress an Aveirah*. For example, by making an animal that belongs to someone else a Korban or by designating someone else's branch as a Lulav, one acquires the object through changing the name of the animal (Shinuy ha'Shem) into a "Korban" or changing the name of the branch into a "Lulav," and thereby transgresses the Isur of stealing. The very act of making the object into one of a Mitzvah was what "stole" the object. In such a case, the Mitzvah is a "Mitzvah ha'Ba'ah b'Aveirah." However, when, for instance, one eats Matzah that is Tevel, the fact that one fulfills a Mitzvah by eating it has nothing to do with the Aveirah. Even if, by eating the Matzah of Tevel, one would not fulfill the Mitzvah, he would still be transgressing the Isur of eating Tevel! The Isur does not play a role in the performance of the Aveirah. Therefore, the laws of "Mitzvah ha'Ba'ah b'Aveirah" do not apply in that case.
(c) TOSFOS (DH Mishum) suggests that the principle of "Mitzvah ha'Ba'ah b'Aveirah" applies whenever an Aveirah was done which enabled a person to later accomplish a Mitzvah (such as stealing a Lulav and using it for Sukos -- see also RASHI 30a, DH she'Ne'emar, and 30b, DH v'Karka). However, Tosfos (DH Ha) adds that it is only a "Mitzvah ha'Ba'ah b'Aveirah" in such cases if the Aveirah *still leaves some impression on the object* up until it is ready to be used for the Mitzvah. (That is, the object is still affected Halachically by the Aveirah that was committed with it earlier.) For example, a stolen object may not be used for a Mitzvah only so long as the thief has not fully acquired possession of the object through Ye'ush and Shinuy Reshus. (Rashi 30 DH Af; 30b DH v'Karka) appears to disagree with this latter limitation; even after the thief acquires the stolen object through Ye'ush he may not use the object to fulfill a Mitzvah. However, it seems from Rashi that only the thief himself may not use the object to fulfill a Mitzvah; others who receive the object from the thief have no such restrictions (see Insights to 30b).
(d) The RAMBAN (in his conclusive suggestion in Pesachim) and his disciple, RABEINU DAVID, explain that "Mitzvah ha'Ba'ah b'Aveirah" is a principle learned from Divrei Kabalah -- it is derived from a verse in Malachi, as our Gemara states. It does not have a status of a Torah principle. The Rabanan have the power to declare that if one fulfills a Mitzvah that was done after doing an Aveirah, one has to do the Mitzvah again; the Mitzvah mid'Oraisa, though, has already been properly performed. When a verse teaches that a stolen object is disqualified for a Mitzvah, it is teaching that even mid'Oraisa one does not fulfill the Mitzvah with the stolen object. (This might also be the opinion of RASHI in Pesachim (see end of Insights to Pesachim 35:2.)
QUESTIONS: Rav Huna told the Jewish retail agents ("Avankeri") who buy Hadas branches from Nochri (Eino Yehudi) wholesalers, in order to sell them to other Jews for the Mitzvah of Arba'as ha'Minim that they should not pick the Hadas themselves but should have the Nochri pick the Hadas.
RASHI (DH v'Karka) says that the reason the Jewish agent should not cut the Hadas himself is because it is common for a Nochri to steal land from Jews, and it is possible that the land from which this Hadas comes was stolen from a Jew. Therefore, in case this land belonged to a Jew, it should be the Nochri who does the act of stealing the Hadas, and not the Jewish agent.
Why does Rashi say the land might have belonged to a Jew? Even if it was stolen from a Nochri, it is forbidden for a Jew to steal from him, and it will not be considered "Lachem!" It is Rav Huna himself who says (Bava Kama 113b) that Gezel Akum is forbidden! (PNEI YEHOSHUA, CHASAM SOFER and others)
(a) The NESIVOS HA'MISHPAT (CM 348:1) explains that according to the REMA, even though Gezel Akum is Asur mid'Oraisa, there is no Chiyuv Hashavah (obligation to return the stolen object) mid'Oraisa. The only Chiyuv to return the object is mid'Rabanan, in order to prevent Chilul Hashem.
The OR SAME'ACH (Hilchos Sukah 5:25) suggests that since there is no Chiyuv Hashavah (even if the object is still intact), one is Koneh it as soon as the Nochri despairs of ever getting it back ("Ye'ush") and Shinuy is not necessary -- just like one is Koneh a *lost* object of a Jew through Ye'ush (because it came into the finder's hands in a permissible manner, "b'Heitera Asa l'Yadei").
After one is Koneh a stolen object, it may be used for a Mitzvah and it is no longer considered "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 be Koneh the Hadas, it must be that the Gemara is talking about an item stolen from a Jew, because an item stolen from a non-Jew needs only Ye'ush in order for one to be Koneh it. (The Or Same'ach writes this in accordance with the opinion of Tosfos cited above 1:c. It is not clear how this explains Rashi, who posits that Mitzvah ha'Ba'ah b'Aveirah applies to a stolen object even after the thief has been Koneh it, as we mentioned above, see also next Insight.)
(The VILNA GA'ON (CM 348:2) argues with the assertion of the Nesivos that there is no Chiyuv Hashavah mid'Oraisa for an item stolen from a Nochri. He cites a Tosefta (Bava Kama 10:8) that states clearly that when one steals from a non-Jew he must return it, and implies that the Chiyuv is mid'Oraisa just like the Chiyuv to return an object stolen from a Jew.)
(b) The Gemara in Bava Kama (113b) explains that even if stealing from a Nochri is Asur mid'Oraisa, that Isur applies only when one actively takes something from a Nochri. There is no Isur d'Oraisa, though, if one does not actively take the item from the Nochri but rather merely defaults on a loan, or finds a lost object and does not return it. There is only, at worst, an Isur d'Rabanan because of Chilul Hashem. We also find this in Sanhedrin (57a) regarding paying a worker for his labor; Rashi there (DH Yisrael b'Kuti) says that the Isur of not paying the wage of the worker who is a Nochri is only an Isur d'Rabanan (because of Chilul Hashem).
Rashi there (Sanhedrin 57a, DH Kovesh) and in numerous other places (see next Insight) writes that one only transgresses the Isur d'Oraisa against stealing when one actually takes the object from within the grasp of its rightful owner. If the item is not in the owner's actual physical possession, a person who keeps the object and does not return it to the owner but keeps it for himself does not transgress the Isur d'Oraisa of stealing.
In the case of our Gemara, if the land belonged to a Nochri, then when another Nochri steals a Hadas from it and then gives it to the Jewish retail agent, even without a Shinuy, the agent is not considered to be holding a stolen item and he may perform the Mitzvah with it. Since he did not actually pick the Hadas, he is not stealing. Of course the object is not his, and should be returned, but such a case can be compared to defaulting on a loan. The only obligation to return such an item to the Nochri is due to Chilul Hashem. Therefore, the Hadas should be considered the property of the Avankeri, and using it for a Mitzvah would not be a Mitzvah ha'Ba'ah b'Aveirah (and thus there would be no need for the Gemara to require a Shinuy). (M. Kornfeld)
(c) The RAMBAN (Milchamos) takes it for granted that the Sugya is talking about a Hadas stolen from a Jew, because, he states, using a Hadas stolen from a Nochri is not considered a "Mitzvah ha'Ba'ah b'Aveirah." Apparently, the Ramban understands this Sugya to be according to the opinion (Bava Kama 113a) that Gezel Akum is Mutar. How can this be, though, if it is Rav Huna who made this statement in our Gemara, and in Bava Kama Rav Huna holds that Gezel Akum is Asur? The Ramban must have had a variant Girsa here in which it was not Rav Huna, but another Amora, who made this statement. Indeed, we find that in some texts, it is Rava, and not Rav Huna, who made this statement (for example, see the Gemara as quoted by TESHUVOS HA'RASHBA 1:968, RITVA Gitin 55a; this emendation must be made in the words of the Milchamos here as well).
If Rashi had that Girsa (that Rava made this statement, and not Rav Huna), it could be that Rashi did not want to have Rava hold that Gezel Akum is Mutar. For that reason he asserted that the Gemara cannot be talking land stolen from a Nochri, because then there is no reason to prevent the Avankeri from picking the Hadas and using it for the Mitzvah! (Indeed, the DIKDUKEI SOFRIM here (fn. 90) cites old manuscripts in which the Girsa in Rashi (DH v'Karka) was that Rava said this statement!)
3) BUYING A HADAS BRANCH FROM A NOCHRI
QUESTIONS: Rav Huna told the Jewish retail agents ("Avankeri") who buy Hadas branches from Nochri wholesalers that they should not pick the Hadas branches themselves, but should have the Nochri pick them and then give them to the Avankeri. The reason for this is that the land that the Nochri owns is often land that he stole from a Jew. However, since "Karka Einah Nigzeles" (land cannot be stolen), whoever cuts the Hadas branch is the one who is stealing. Therefore, the Nochri should cut it and the Jewish agent should take it from him. This way, even the agent himself may use the Hadas for the Mitzvah, and it will not be a "Mitzvah ha'Ba'ah b'Aveirah."
But if the Hadas is a stolen one, what difference does it make if the Jew did not actually steal it? He is doing a Mitzvah with a stolen object! Why is it not a "Mitzvah ha'Ba'ah b'Aveirah?"
The Gemara explains that when the Jew receives the Hadas, two things have taken place -- Ye'ush, and Shinuy Reshus. As a result of those two steps, the impression of Gezeilah no longer remains upon the object, and when it is used for a Mitzvah it is not a "Mitzvah ha'Ba'ah b'Aveirah" That is once a person has been Koneh the object, "Mitzvah ha'Ba'ah b'Aveirah" no longer applies. This is the approach of TOSFOS (30a DH Ha) to our Sugya.
RASHI (DH v'Karka), however, seems to take a different approach. Rashi writes that the Halachah expressed by the Gemara (that the Jewish agent should not cut the Hadas himself) holds true even according to the opinion that one is Koneh a stolen item through Ye'ush. Even though the agent would be Koneh the item, nevertheless he should not cut the Hadas because he will be stealing if he does do, and when he uses it for the Mitzvah (even after Ye'ush, at which point he is Koneh the object), it will *still* be a "Mitzvah ha'Ba'ah b'Aveirah." Rashi clearly disagrees with Tosfos and says that even after one is Koneh the object and it belongs to him completely he still may not do a Mitzvah with it; "Mitzvah ha'Ba'ah b'Aveirah" still applies.
Rashi is very difficult to understand for a number of reasons.
(a) If the Jewish agent who cuts the Hadas from the Nochri's land commits Gezeilah if the land 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 be Koneh with Shinuy Ma'aseh or Shinuy ha'Shem? At the moment that he cuts it he is doing an Aveirah of Gezeilah -- it should be prohibited to cut 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 be Koneh the Hadas through Shinuy Reshus? That works well for the customer, but the agent will still be stealing 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, it should still be considered that the Avankeri is stealing the Hadas. Why is that? Since the Sugya holds that Ye'ush is not Koneh, the Kinyan occurs only at the time that the Avankeri buys it from the Nochri. By buying the Hadas, the Avankeri is removing the Hadas from the original owner's Reshus. If so, 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 is a problem only according to Rashi's opinion that even after one has been Koneh the item there is still a problem of "Mitzvah ha'Ba'ah b'Aveirah." According to Tosfos, once the Aveirah has been committed and the person has been Koneh 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 is Koneh the object, as Rashi implies, then why does the Gemara say that the agent should be able to do the Mitzvah because he was Koneh the object through Shinuy Ma'aseh or Shinuy ha'Shem? Even if there is a Shinuy, he should still not be able to use the item for a Mitzvah because it will be a "Mitzvah ha'Ba'ah b'Aveirah"! (MAHARSHA)
(d) Why does Rashi attempt to explain the Sugya according to the opinion that Ye'ush alone is Koneh an object? The Gemara clearly says that when the Nochri cuts it, there will be Ye'ush when the item is in the Nochri's hands, and then there will be Shinuy Reshus when the item comes to the agent's hands. The fact that the Gemara says that both are necessary clearly implies that Ye'ush alone is not Koneh and that a Shinuy (a change) in the object is needed so that one can be Koneh it. (Otherwise, if Ye'ush alone works, then the Gemara should have said simply that the Nochri should cut the Hadas and not the Jewish agent, so that the Jew is not doing an Aveirah.) The Sugya is clearly following the opinion that Ye'ush alone is not Koneh! Why, then, does Rashi explain the Sugya also according to the opinion that Ye'ush is Koneh?
(a) When the Gemara suggests that the Jewish agent should cut the Hadas and be Koneh it through a Shinuy Ma'aseh or Shinuy ha'Shem, the Gemara is not bothered by the problem of theft. There is no real fear that he is stealing in such a case, because since the Nochri is in possession of the land, he has a Chazakah and we assume that it belongs to him. Even though it is true than 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, then the burden of proof is on the claimant -- "ha'Motzi me'Chaveiro Alav ha'Ra'ayah"). However, regarding the fulfillment of the Mitzvas Aseh of Lulav, we *do* take into account the possibility that the land is stolen land, because it is a question of fulfilling the Mitzvah. Hence, even though with regard to the purely 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 "ha'Motzi me'Chaveiro Alav ha'Ra'ayah"), when it comes to a doubt in the laws of Isur v'Heter (i.e. one might not be fulfilling a Mitzvah), then the laws of Safek Isur apply, and we know that Safek Isur *l'Chumra* (see Bava Basra 81b). (The difference between the question of Gezeilah and the question of the Mitzvah-fulfillment can be expressed in other ways as well, such as follows: while the doubt regarding the monetary laws (Gezeilah) are governed by the normal rules of such a doubt (Chazakah, Rov), the Rabanan did not want to rely on those laws with regard to the Mitzvah of Lulav, because they wanted the Mitzvah to be fulfilled in the best way possible. Therefore, even though m'Ikar ha'Din one could rely on the Chazakah that the land is probably not stolen, if there is some way to also 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 to our Sugya.)
Therefore, the Gemara is not bothered that the agent will be transgressing the Isur of Gezeilah if he cuts it -- regarding the monetary laws, we follow the Chazakah and assume that it does *not* belong to a Jew. The only question is that if, just in case the land does belong to a Jew, then the Mitzvah will be a "Mitzvah ha'Ba'ah b'Aveirah."
(b) Even if the Gemara is only discussing the problem of properly fulfilling the Mitzvah, why does the Gemara assume that if the agent is Koneh 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 is Koneh the object, then even if one is Koneh it through Shinuy Reshus, he is still doing an Aveirah of Gezeilah by making a Kinyan on an object that is not his (or the seller's), and thus it is still a "Mitzvah ha'Ba'ah b'Aveirah" when it comes to fulfilling the Mitzvah with this object!
The answer to this question is that Rashi is following his opinion as expressed in many places in the Gemara (Bava Metzia 26b, Sanhedrin 2a, Sanhedrin 57a, Yoma 74a, Rosh Hashanah 22a, etc.). Rashi writes that the Isur of Gezeilah mid'Oraisa is transgressed only if one takes the object directly from the grasp of the owner (or from within the owner's property). In contrast, if one takes the object after it has already been removed from the owner's property (for example, if the owner lent it to his friend, and his friend decided to keep it for himself, or if the owner lost it in Reshus ha'Rabim and the finder decided to keep it), it is not Gezeilah mid'Oraisa. Thus, in our case, the object that might have been stolen is in the hands of the Nochri and no longer in the possession of the original owner, and when the agent takes it from the Nochri, he is not committing Gezeilah mid'Oraisa! Although it is Asur mid'Rabanan to steal in such a manner, an Isur d'Rabanan will not impede the performance of a Mitzvah because of "Mitzvah ha'Ba'ah b'Aveirah." (And as far as the Aveirah of stealing is concerned -- i.e. even without the Mitzvah, how can we permit the agent to take the item from the Nochri if he might be stealing it from another Jew -- we are not concerned that there is really Gezeilah here, as discussed above (a).)
We might still ask, though, that in a case when the Jewish agent picks the Hadas and then sells it to another Jew, why is it not considered a "Mitzvah ha'Ba'ah b'Aveirah" for the second Jew who buys it from the agent? After the all, the agent might have committed a serious Aveirah of Gezeilah mid'Oraisa (by picking it directly from the property of another Jew)?
It must be that Rashi holds that "Mitzvah ha'Ba'ah b'Aveirah" applies only to the person who did the Aveirah. If one person acquired the object through an Aveirah, and another person uses that object to do a Mitzvah, then there is no problem of "Mitzvah ha'Ba'ah b'Aveirah" (this is implied by Rashi at the top of 30a, when he writes that "Mitzvah ha'Ba'ah b'Aveirah" means that a Mitzvah may not be done that is brought about by one's Aveirah). On the other hand, the Jew *will* have to worry about the problem of "Lachem" (in order to fulfill the Mitzvah of Lulav, he must own it); 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 it "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 Ye'ush alone is Koneh, nevertheless after being Koneh through Ye'ush *and* Shinuy Ma'aseh or Shinuy ha'Shem, "Mitzvah ha'Ba'ah b'Aveirah" will no longer apply. The simplest way of understanding this supposition is that when there is a second step of Kinyan done with the object, it becomes too far removed from the original act of Gezeilah, and "Mitzvah ha'Ba'ah b'Aveirah" will not apply.
An alternative way of understanding the Maharsha's answer is that when there is Shinuy Ma'aseh or Shinuy ha'Shem, the object itself has been changed. In such a case it is considered like a totally new object, and it is not the same object that was stolen -- that is, it is not that the Shinuy makes the object so far removed from the act of Gezeilah, but rather it makes the object like a new object altogether. (CHASAM SOFER, KEHILOS YA'AKOV). This does not work, though, to explain how Shinuy *Reshus* solves the problem of Mitzvah ha'Ba'ah b'Aveirah, since nothing in the object itself has changed (only the hands that are holding it have changed). However, we already explained that Shinuy Reshus avoids the problem of "Mitzvah ha'Ba'ah b'Aveirah" because Mitzvah ha'Ba'ah b'Aveirah only applies to the person who stole it.
(d) It could be that Rashi maintains that, l'Halachah, Ye'ush is Koneh. He does not want this Sugya to be following the opinion which is not l'Halachah, or to be limited to the opinion of just a few Amora'im. Thus, Rashi explains that this Gemara is stating that the Nochri should pick the Hadas according to both opinions -- whether Ye'ush alone is Koneh, and whether Ye'ush alone is not Koneh. Even if Ye'ush is not Koneh, after the Nochri picks the Hadas the agent is Koneh because there is Shinuy Reshus and thus the agent can fulfill the Mitzvah with the Hadas (because it is "Lachem"). That is why the Gemara adds the element of Shinuy Reshus -- to explain why the agent can use the Hadas according to the opinion which holds Ye'ush is not Koneh. The Gemara also means to teach that even if Ye'ush is Koneh, the agent must still have the Nochri pick the Hadas so that the agent will not be stealing (even though, since Ye'ush is Koneh, it will be considered "Lachem" if he picks it).