29b-30a: Mitzvot That Come From Aveirot

Last week, we began learning the third perek of Masekhet Sukka and discussed some of the disqualifications of a lulav. We pointed out that the four species must be hadar (lit. beautiful), and that a dried-out lulav is therefore unfit for use. We also mentioned that the species must be lakhem, meaning that one must legally own his lulav and etrog. This disqualifies a stolen lulav from being used for the mitzva. We left off with the gemara's statement that whereas a dried-out lulav is pasul for use the entire Sukkot (due to its lack of hadar) it is difficult to understand why a stolen lulav should be unfit for use after the first day (or in chutz la'aretz two days) of Sukkot; the requirement of lakhem only applies on the first day!

Before we get to the gemara's answer, the question that begs to be asked is why the requirement of hadar applies for the entire holiday, while lakhem applies only on the first day. After all, the source of both rules is the same pasuk (Vayikra 23:40): "You shall take for yourselves (lakhem) on the first day fruit of a citron tree (pri etz hadar) etc." Why should we differentiate between the requirements?

Many commentators discuss this issue, and point out that with regard to other requirements of the four species we see a similar phenomenon; some requirements apply the entire time while others are relevant only on the first day. How are we to understand the differences?

Tosafot (s.v. be’inan) explain that it all goes back to an important point that we discussed last week. The Biblical mitzva of lulav applies, as the pasuk indicates, only on the first day of Sukkot. The exception to this rule is the Beit Ha-mikdash, where there is a mitzva de-oraita of lulav all seven days of Sukkot. After the destruction of the Beit Ha-mikdash, the Sages instituted a universal rabbinic mitzva of lulav for the final six days of Sukkot in remembrance of the Beit Ha-mikdash. Normally, when the Sages institute a mitzva, they establish it in a way that mirrors the Torah law (this principle is known as "kol d'tikun rabanan, ke-ein de-oraita tikun," lit. "all that is established by the rabbis is established like the Torah"). However, Tosafot argue that this is not an absolute rule. Therefore, the Sages applied the central aspects of the Torah-law mitzva to their mitzva de-rabanan - for instance, that each person must take all of the four species. Similarly, they maintained the requirement of hadar, because we always try to do mitzvot in the most beautiful and respectable ways possible (this is known as the concept of hiddur mitzva). Since with regard to the four species this general principle gets institutionalized, the Sages kept it in. But, they did not institute in their mitzva de-rabanan all of the technical details of the original mitzva. Therefore, one is not required to legally own his lulav and may borrow a lulav from someone else. As a corollary of this, if one steals a lulav, it is not clear why the lulav should be unfit for use.

With that introduction, let's get to the gemara's answer to the question - why is a stolen lulav pasul after the first day of Sukkot? We resume with the last line of 29b:

The gemara has introduced here an important concept: mitzva ha-ba'ah ba-aveira, which literally translates to "a mitzva that comes through a sin." If one does a mitzva in such a manner, it is disqualified. R. Yochanan quotes R. Shimon ben Yochai as explaining that this is the reason a stolen lulav is unfit for use. To use such a lulav would be a mitzva ha-ba'ah ba-aveira because the mitzva of lulav comes about through the aveira of stealing.

R. Shimon ben Yochai brings a source for this concept from the pasuk in Malakhi (1:13). The prophet (in the name of God) complains that although the nation is careful to bring korbanot, their sacrifices are ineffective. Not only do they fail to attain forgiveness for their sins, but the korbanot themselves reflect the moral corruption and lack of respect for God that has infected the people. As evidence of this, the prophet complains that the animals the people bring as korbanot are stolen, lame and sick. To bring a stolen animal as a sacrifice is utterly disrespectful; in that case, one attempts to please God, as it were, by bringing the result of one's sin as a sacrifice! Similarly, lame and sick animals are unfit as sacrifices, and bringing them is not only a halakhic infraction but a sign of disrespect as well (compare to the story of Kayin in Bereishit ch. 4, with Rashi!).

R. Shimon ben Yochai notes that the verse lumps stolen animals together with animals that have a physical blemish which disqualifies them from being brought as korbanot. This juxtaposition is the source of his derasha; just as a lame animal will never become fit for bringing as a korban, so too a stolen animal cannot become fit as a korban, even after "despair." The concept of despair (yei'ush) is that when the true owner despairs of ever recovering his stolen item, the thief becomes the legal owner of the stolen property (though, of course, he must still compensate his victim). Now, before yei'ush, when the thief did not legally own the animal, it was certainly unfit for use as a korban, because one who brings a sacrifice must own the animal that he is bringing (this is based on the word mikem, "from among you," which is very similar to the requirement of lakhem that applies to a lulav). After yei'ush, though, he already does own the animal! R. Shimon concludes that the animal must be unfit for use because of the concept of mitzva ha-ba'ah ba-aveira.

Let's return to the gemara, which quotes an additional source for mitzva ha-ba'ah ba-aveira. We are on the ninth line of 30a.

This statement of R. Shimon ben Yochai quotes a pasuk from Yeshayahu (61:8) in which the prophet exclaims that Hashem loves justice and hates when people bring sacrifices from stolen animals. By way of explanation, R. Shimon cites a parable in which a king pays a toll despite the fact that this is unnecessary, as the tolls all go to his royal coffers anyway. Nevertheless, in order to set a good example for his subjects, he pays the toll. So too, God does not approve of sacrifices from stolen animals; they are disqualified in order to emphasize to humans that stealing is unacceptable. 

The apparent difficulty the parable comes to address is why it is that a stolen animal should be unfit for a sacrifice. Why should it be impossible to offer any particular animal to God? The whole world and everything in it belong to Him! How can my this-worldly possession of an animal limit its suitability as a sacrifice to God? The parable illustrates that the animal is inherently suitable a sacrifice. Nevertheless, God disallows sacrifices from stolen animals in order to emphasize His disapproval of the act of stealing.

Whenever we have two sources for a halakha, it is instructive to closely analyze the sources and their differences. Often, the source of a halakha can teach something about its essence. When there are multiple sources, they can at times imply different things about the halakha at hand.

In our case, there are two distinct ways that one can view the problem of mitzva ha-ba'ah ba-aveira. One can understand that one simply does not fulfill the mitzva. Since there is an aveira mixed in, this action is not pleasing to God, as it were. Alternatively, one can understand that the focus of the disqualification is not the action (i.e. the performance of the mitzva) but the object (in our case, the lulav). This object is unacceptable for use in a mitzva, due to the fact that it has been obtained via an aveira.

This may sound like a very subtle distinction, but bear with me for a moment - the distinction may very well have practical ramifications, and mentioning them will help sharpen the distinction itself. One ramification may be with regard to the definition of mitzva ha-ba'ah ba-aveira; does it apply whenever someone does an aveira along with a mitzva - or, to say it a bit differently, whenever an aveira facilitates a mitzva? Or, perhaps the concept applies only when the mitzva requires a certain object, and that object is an "aveira-object," i.e. an object obtained via an aveira or used for aveira purposes. One can take it either way with regard to a stolen lulav. It could be that since the aveira of stealing facilitates the mitzva, it is a mitzva ha-ba'ah ba-aveira and one does not fulfill the mitzva. Alternatively, one can argue that it is only because the lulav is "stolen goods" that it is unfit for use.

A test case would be one in which an aveira facilitates a mitzva, but does not relate to the object with which the mitzva is performed. One such case that halakhic authorities discuss is with regard to a person who travels on yom tov in a forbidden manner in order to arrive at a sukka. Some poskim argue that such a person ought not make a beracha on the mitzva of sukka, because he was only able to fulfill the mitzva by violating an aveira. Others claim that the aveira here is unconnected to the mitzvah; they are two completely separate events. Thus, the illegal traveler has violated an aveira, but his mitzva is fully acceptable. It seems as though the two sides of this machloket disagree using the two definitions of mitzva ha-ba'ah ba-aveira that we suggested above. If mitzva ha-ba'ah ba-aveira means that an aveira enabled fulfillment of the mitzva, this case should be a mitzva ha-ba'ah ba-aveira. But if the concept means that a particular object becomes disqualified for use in mitzvot as a result of its being used for aveirot, mitzva ha-ba'ah ba-aveira should not apply to our illegal traveler.

A further ramification of the distinction we mentioned above is whether the object used for the aveira becomes completely unfit for use or not. Thus, there is a discussion among the commentators about how the halakha relates to a stolen sukka. One clearly would not fulfill the mitzva of sukka. In addition to the fulfillment of the mitzva, though, it is forbidden to eat outside of a kosher sukka. If a stolen sukka is viewed as completely invalid, we might say that one who eats in it violates the prohibition of eating outside the sukka. Alternatively, we might admit that the sukka is valid, and one is considered to be in a valid sukka, but that nevertheless it does not count as a fulfillment of the mitzva.

Rav Michael Rosensweig pointed out that the two understandings of mitzva ha-ba'ah ba-aveira that we have been discussing may stem from the two different sources for the principle that are cited in our gemara. The first source argues that a stolen animal is inherently and permanently unfit as a sacrifice. The object (in this case an animal) has become unfit for use. The second source, however, emphasizes that the object is inherently fit for use, but that one nevertheless does not fulfill a mitzva.

This is our last shiur before Pesach. I wish everyone an enjoyable and uplifting holiday experience, and look forward to continuing our learning together after Pesach.

Michael Siev