Sukkah, Daf Lamed, Part 2

 

Introduction

The Talmud begins by trying to explain why a stolen or dried up lulav cannot be used on Sukkot.

 

גמרא. קא פסיק ותני, לא שנא ביום טוב ראשון ולא שנא ביום טוב שני. בשלמא יבש – הדר בעינן, וליכא. אלא גזול, בשלמא יום טוב ראשון – דכתיב +ויקרא כג+ לכם – משלכם, אלא ביום טוב שני אמאי לא?

 

 

Gemara. The tanna teaches categorically it doesn’t matter whether [it is to be used] on the first day of the festival or on the second day.

This makes sense with regard to a dried up lulav palm since we must have [a branch that is] "goodly" and this one is not.

But with regard to a stolen one, this makes sense on the first day of the Festival, since it is written, "from yours" [which implies] that it must belong to, but why should it not be allowed on the second day?

 

The mishnah does not distinguish between the first day of the festival and subsequent days (second day and onwards) one cannot use a dried up or stolen lulav on any day. This makes sense with regard to a withered up lulav. Leviticus 23:40 uses the word "goodly (הדר)" in the context of the etrog, but the rabbis apply it to all four species. All must be goodly and not withered or dried up. This rule applies every day of the festival.

With regard to a stolen lulav, there is a midrash which disqualifies the use of a lulav on the first day of the festival. The same verse from above says, "And you shall take for yourselves on the first day." From the words "for yourselves" the rabbis derive the halakhah that on the first day of the festival one may use only one’s own lulav, as if the verse said, "from your own stuff." A stolen lulav or even a borrowed lulav is not allowed. But the verse applies only to the first day of the festival.

But why is a stolen lulav not to be used on the second day (meaning any day but the first day)? The midrash that one must own one’s lulav refers only to the first day. So why not use a stolen lulav on the second day. This is the question that occupies the rest of this talmudic passage.

 

 

אמר רבי יוחנן משום רבי שמעון בן יוחי: משום דהוה ליה מצוה הבאה בעבירה. שנאמר +מלאכי א+ והבאתם גזול ואת הפסח ואת החולה, גזול דומיא דפסח, מה פסח לית ליה תקנתא – אף גזול לית ליה תקנתא,

 

Rabbi Yohanan said in the name of Rabbi Shimon b. Yohai: because it would be a commandment fulfilled through a transgression, as it is said, "And you have brought that which is stolen, and the lame and the sick:" "the stolen" is thus compared with the lame; just as the lame can never be fixed, so too that which is stolen can never be fixed.

 

The answer comes from a statement made by R. Yohanan in the name of R. Shimon b. Yohai. Using a stolen lulav to fulfill a mitzvah would be performing a transgression (stealing) in order to fulfill a mitzvah. Not only is this prohibited, but one cannot even use such a lulav to fulfill one’s commandment. R. Yohanan’s midrash compares a stolen animal to a lame animal even after one takes legal possession of the stolen animal (we shall see how below) the animal cannot be used as a sacrifice. Just as a lame animal cannot be fixed, so too an animal that has been stolen can never be used as a sacrifice.

 

לא שנא לפני יאוש ולא שנא לאחר יאוש. בשלמא לפני יאוש – +ויקרא א+ אדם כי יקריב מכם אמר רחמנא, ולאו דידיה הוא.

אלא לאחר יאוש – הא קנייה ביאוש! אלא לאו – משום דהוה ליה מצוה הבאה בעבירה.

 

It doesn’t matter whether this is before abandonment [of hope of recovery by the owner] or after abandonment.

This makes sense before abandonment, "When a person from you brings an offering of his," the Torah says, and this does not belong to him.

But after abandonment [of hope of recovery by the owner], he [the robber] has acquired it by [virtue of] abandonment?

Rather the reason must then be that it is a commandment fulfilled through a transgression.

 

In Jewish law there is a concept called "despair (יאוש)." When a person loses something or something is stolen from him and he despairs of hope of recovery, the object becomes the property of the robber or the finder. Note that this doesn’t mean that the robber doesn’t need to return the object. It just means that legally while he holds on to it, it belongs to him. So too with the lulav or sacrifice, after the robber has taken legal possession of it because the owner gave up hope of recovery, it belongs to him. So he should be able to use it for the mitzvah (sacrifice or lulav). It is clear that he can’t use it before the owner had despair for it doesn’t belong to him. But why not after?

The answer is that such a lulav/sacrifice is not viable for the performance of a mitzvah because it is a "commandment fulfilled through a transgression." One cannot steal something in order to please God with it. We shall see another midrash explaining this concept in tomorrow’s section.