The stolen lulav

Introduction

In regards using stolen items to fulfil Mitzvos during Succos, there are two primary sources in the Gemara Talmud Bavli¹, one considers the use of a stolen Lulav while the other concerns the use of a stolen Succah. Everyone agrees that using a stolen Lulav on the first day of Succos, is unacceptable. The Mitzvos of the first day are Torah obligations, as opposed to Rabbinic obligations. There is a disagreement whether a Lulav that has been stolen may be used after the first day of Succos.

On the first² day of Succos, the Torah³ demands that the Lulav be לכם — halachically owned by the person performing the Mitzvah. Taking the Lulav on the other days of Succos⁴ is a Rabbinic requirement. The nature of that Rabbinic requirement is discussed herein. One possibility is that the use of the Lulav on the other days is also forbidden. The Talmud Bavli Succah expresses the view that the Rabbinic Mitzvah of Lulav was established with similar⁵ parameters to the Torah Mitzvah and, therefore, if the Lulav is not לכם⁶ — halachically yours — it may not be used for the Mitzvah after the first day. An alternative approach is that the Rabbinic Mitzvah is fashioned on the Torah requirement but doesn’t precisely ascribe all the same details, such as לכם (for example, one might be able to use a borrowed Lulav on the last days but not on the first day).

Either way, if the performance of a Mitzvah has been achieved through the agency of a sin — stealing — we commonly apply the dictum of מצוה הבאה בעבירה — disqualify the act of taking a Lulav in such circumstances, on that basis.

As we will see, the Talmud Yerushalmi⁷ also expresses the view that using a stolen Lulav is forbidden, though it may be that when the Talmud Yerushalmi expresses the rule of מצוה הבאה בעבירה – a Mitzvah that is achieved via an Aveyra/Sin — it considers the disqualification of the Mitzvah that is enacted through theft as a Torah law. In other words, according to the Yerushalmi it is possible that מצוה הבאה בעבירה is not a Rabbinic enactment/dictum itself; rather the Torah itself prohibits or rejects the enablement of a Mitzvah if it materialises through the agency of a sin (such as stealing).

It is important to note that in any event — whether someone has or has not fulfilled a Mitzvah which involves using stolen goods — there is an independent requirement to return those goods to the rightful owner⁸. Consideration is also given to the person fulfilling a (Rabbinic) Mitzvah but being unable to make a Bracha over the Mitzvah on account of the act of a sin.

Let us consider the sources in some detail.

The stolen Succah

The Bavli in Succah 9a discusses the case of a Succah that has been stolen. The Torah states in Devarim 16:13, חג הסכת תעשה לך — you should make (a festival of) Succos — from which we deduce that if it’s not your Succah, for example if the Succah is stolen, then you have not fulfilled the Mitzvah. Tosfos⁹ ask an incisive question. Since we have a general rule that מצוה הבאה בעבירה, a Mitzvah borne through sin, is disqualified — as is the case with a stolen Lulav — then why does the Gemara seek a specific Pasuk from the Torah in order to disqualify a stolen Succah? Surely, it would (also) be disqualified through the aegis of מצוה הבאה בעבירה. Tosfos answer that the rule of מצוה הבאה בעבירה is one that the Rabbis enacted — מדרבנן — and the Gemara would prefer to invalidate the use of a stolen Sukkah through a Torah verse, rather than invalidating through the Rabbinic rule of מצוה הבאה בעבירה.

What we may conclude based on this Tosfos in 9a, is that the rule of מצוה הבאה בעבירה is a Rabbinic application¹⁰ that can be used to disqualify a Mitzvah.

The Stolen Matza

The Yerushalmi¹¹ describes

מצה גזולה אסור לברך עליה. א”ר הושעיא על שם (תהילים י) ובוצע ברך ניאץ ה’. א”ר יונה הדא דתימא בתחילה אבל בסוף לא דמים הוא חייב לו. רבי יונה אמר אין עבירה מצוה. רבי יוסי אמר אין מצוה עבירה. א”ר הילא אלה המצות אם עשיתן כמצותן הן מצות ואם לאו אינן מצות

the case of someone eating Matza that was stolen. In such a case, we are not permitted to make a Bracha on that Matza. There are four explanations given for not being permitted to make a Bracha. R’ Hoshaya quotes a verse in Tehillim to the effect that a person who steals reviles Hashem and it is anachronistic to bless Hashem while concomitantly reviling Him. R’ Yona states that in the first instance לכתחילה one should not make a Bracha, however, if someone did make a Bracha after the fact בדיעבד, then it is acceptable because that person technically now owes the monetary value of the Matza as they have sequestered that Matza for their own needs. R Yona and R Yoisi¹² both disqualify the Bracha based on the idea of a מצוה being performed via an עבירה. R Hila learns that one needs to do a Mitzvah “properly”. If it’s not done properly, it is invalid.

The Ridbaz (ibid) concludes from this Yerushalmi, that all opinions disqualify that Mitzva of Matza because effectively it is  מצוה הבאה בעבירה. The Aruch Hashulchan¹³ asserts that this Yershalmi would appear to support the claim that מצוה הבאה בעבירה is a פסול מן התורה — disqualified by as a Torah principle — as opposed to the aforementioned Tosfos who contend that מצוה הבאה בעבירה is a Rabbinic enactment.

The Stolen Lulav

We have discussed a stolen Succah. What of a stolen Lulav? The Mishna in Succah 29b states, without qualification, that a stolen Lulav is invalid. The fact that the Mishna didn’t limit itself to the first day of Yom Tov or to a Lulav within the walls of Yerushalaim (where one would have a Torah command to take the Lulav for all seven days of Succos) would suggest that סתם the Mishna disqualifies such a Lulav on all days of Succos. With that premise, the Gemara then asks, why should the Lulav be invalid after the first day. Seemingly, the need for לכם — a Lulav which is owned by the holder — is only a requirement from the Torah on the first day.

If the Torah only required the Lulav to be taken on the first day, why do we take the Lulav on the other days? There was a Rabbinic enactment תקנה from R’ Yochanan Ben Zakai, as a זכר למקדש—a reminder of the process/pageantry in the Beis HaMikdash—to take the Lulav on the other days of Succos. Is the מצוה מדרבנן precisely the same as the דאורייתא on the first day? The Gemara answers in the name of R’ Shimon Bar Yochai that although the notion of לכם is a Torah requirement for the first day, the Rabbis invalidated an act of a זכר למקדש when that is performed through the agency of a sin — the sin of stealing in this case. That is, one is performing the Rabbinic command of זכר למקדש through a מצוה הבאה בעבירה. Shmuel disagrees. Seemingly, as noted by Tosfos¹⁵ and the Rosh¹⁶, Shmuel ddid not learn that מצוה הבאה בעבירה applied to a Rabbinic מצוה and that as a principle it only ever applied for a Torah based Mitzvah.  The Sefas Emes (ibid) goes further. He claims that even R’ Yochanan Ben Zakkai who prohibits the use of a stolen Lulav on the Rabbinic last days, also agrees that the principle of מצוה הבאה בעבירה does not apply to a Mitzva DeRabanan. The reason that a Lulav is prohibited in this case is because R’ Yochanan Ben Zakai enacted a specific זכר למקדש which only permitted a Lulav which was owned by the user. In other words, according to R Yochanan Ben Zakai, the act was not one of a זכר למקדש.

The Noda BiYehuda in his commentary (:צל’’ח כט) asks a great question based on the opinion of Shmuel. Generally speaking whenever the Rabbanan enacted a Mitzvah they sought to mimic the DeOrayso Torah approach to that Mitzvah —כל דתקון רבנן כעין דאורייתא תקון. Since Shmuel held that מדאורייתא one may apply מצוה הבאה בעבירה on the first day and prohibit a tainted מצוה then surely when the Rabbanan enacted their מצוה — Lulav on the other days of Succos — they too would have incorporated the outcome of מצוה הבאה בעבירה and forbidden the use of the tainted Lulav. The צל’’ח explains that according to Shmuel the concept of מצוה הבאה בעבירה is itself not a Torah objection to a tainted Mitzvah but is a Rabbinically enacted objection. As such, since taking Lulav is already one Rabbinic מצוה enacted as a זכר, we have a rule that doubly applying Rabbinic enactments — תרי דרבנן — is not an accepted approach in Halacha, in general. Therefore, to (doubly) qualify a Rabbinic מצוה with another Rabbinic proscription isn’t an acceptable approach. As opposed to Shmuel, R Yochanan doesn’t have the problem of תרי דרבנן — two Rabbinic enactments — because R Yochanan holds that מצוה הבאה בעבירה is a Torah derived imperative.

It is evident then that where there is a Rabbinic Mitzvah which is derived from a Torah Mitzvah (as opposed to an unlinked Rabbinic enactment) there is an argument between Shmuel and R Yochanan Ben Zakai as to whether we apply מצוה הבאה בעבירה. According to Shmuel we do not because it is תרי דרבנן, as above, and according to R Yochanan we do because כל דתקון רבנן כעין דאורייתא תקון. 

What does the Yershulami¹⁷ say about the case of the stolen Lulav? The Yerushalmi also forbids it and quotes the Pasuk of לכם after which R Levi says that the person who utilises a stolen Lulav is “like someone who feeds an overlord with food that already belongs to the overlord”. In such an event, the food, which was meant to be a source of appeasment and a defender of the Jew is transformed into a prosecutor who cries out that the Jew has effectively used stolen food to feed the overlord. 

The Pnei Moshe (ibid), explains that the reason of לכם only applies to the first Torah enacted day, however, the second reason (of the defender appearing as the prosecutor) applies to all the days of Succos and is forbidden on the same basis as מצוה הבאה בעבירה. Furthermore, other commentaries explain that the Yerushalmi presents the same disagreement as the Bavli vis a vis R’ Yochanan and Shmuel. According to the first opinion of the Yerushalmi, we do not say מצוה הבאה בעבירה because the other days are דרבנן and like Shmuel, we don’t apply מצוה הבאה בעבירה to a דרבנן. On the other hand R Levi’s view is that we do apply מצוה הבאה בעבירה to a דרבנן and the enactment already precluded using a tainted Lulav. 

In respect of Halacha, the Ramo in תרמ’’ט:א invalidates the use of a stolen lulav on all days and we invoke the dictum of מצוה הבאה בעבירה in this regard. The words of the Ramo and Shulchan Aruch are streamlined according to the Magen Avraham and confirmed in the Mishna Brura (ibid). To understand the parameters of the Halacha with crystal clarity, as is often the case, the phraseology employed by the שולחן ערוך הרב is highly recommended. 

The case of the stolen lulav has many more twists and turns and has occupied many Acharonim. The above is perhaps a bite sized description of the major issues at play. Another example is that of the stolen Shofar. The Rambam concludes that one does fulfil the Mitzvah of hearing via a stolen Shofar because the sound emanating from the Shofar was never stolen. There is no “alternative morality” that would disqualify any outcome of using a stolen Shofar.

In an article in the Australian Jewish News, Nomi Kaltmann in a perhaps provocatively titled article “There is a moral underpinning to mitzvot” postulates that the so called difference between the Yerushalmi and Bavli regarding the stolen Lulav has something to do with which of these two Talmuds applied a higher form of “morality” underpinning their decisions versus (more) drier technical considerations. Kaltmann claims the Yerushalmi “seems to have a superior moral position” and then attempts to link her thesis with more general statements perceiving this issue as one of “the letter of the law versus the spirit”. In my reading and understanding of the Sugya hereand there is much more ink on this topic than I have presented, and consistent with the Yerushalmi on Challah and Succah, the underlying considerations relate to nuanced halachic categories and their applicability to the cases discussed, including:

• מצוה הבאה בעבירה
• כל דתקון רבנן כעין דאורייתא תקון
• תרי דרבנן לא אמרינן
• יאוש (although I didn’t mention this above)

and how these play out according to all the different opinions in both the Bavli and Yerushalmi. Indeed, after analysis, I’m not sure I can see a fundamental difference between the Bavli and Yerushalmi that could be described in terms of some “higher morality”: the disagreements gravitate along the same boundaries considering the same issues in my view.

Notes

1.  Succa 9a and Succa 29B
2.  Within the walls of Jerusalem this would apply to all seven days
3.  As opposed to the Rabbonon
4.  There is some conjecture about the second day itself. See Noraos HaRav, Volume 9 for a general essay on that topic.
5.  Exactly how similar is the issue we work through here
6.  This would admit for example a Lulav which was borrowed
7.  Chalah 1:5, Shabbos 13:3, Succa 3:1
8.  This is the case in general. There are instances where the monetary value instead is used for payback—for example if the stolen good has been improved in value by the robber then the original monetary value mst be returned, as opposed to the (now modified and improved) stolen goods.
9.  בד’’ה ההוא
10.  It could be argued that this Tosfos differs from the Tosfos בד’’ה משום on Succos 30a regarding a stolen Lulav. Tosfos learns that מצוה הבאה בעבירה is a Torah rule of disqualification of any מצוה act that is enacted through a sin. That being said, it is difficult to understand how to superimpose a Torah disqualification on a Rabbinic Mitzvah (the Lulav is Rabbinic after the first day). 
11.  Chalah 1:5, Shabbos 13:3
12.  They use slightly different words and I’m not sure if there is a practical difference emanating from their phraseology.
13.  או’’ח תנד:יא
14.  Bavli
15.  בד’’ה מתוך, ל.
16.  פרק ג, סי׳ ג
17.  סוכה ג:א
18.  יפה עינים שם וביאור הגר’’א תרמ’’ט א