GEMARA SUKKA

Lecture 12: Mitzva ha-Ba'a be-aveira (Part I)

 Rav Shmuel Shimoni

But gazul (stolen) – granted on the first day, it is written "lakhem" (for yourselves) – belonging to you. But on the second day of the festival, why not? Rabbi Yochanan said in the name of Rabbi Shimon ben Yochai: Because it is a mitzva performed through the commission of a transgression (mitzva ha-ba'a be-aveira). As it is stated: "And you have brought that which was stolen, and the lame, and the sick" (Malakhi 1:13). "Stolen" similar to "lame" – just as the lame has no repair, so too the stolen has no repair, there being no difference between before yi'ush and after yi'ush. Granted before yi'ush – The Torah said: "If any man of you bring an offering" (Vayikra 1:2), and it is not his. But after yi'ush, surely he acquired it through yi'ush! Rather, because it is a mitzva ha-ba'a be-aveira.

            Rabbi Yochanan in the name of Rabbi Shimon ben Yochai presents us with the fundamental law of mitzva ha-ba'a be-aveira.[1] In this shiur, we shall not discuss all the various components of this law, but rather we shall focus on the question regarding the relationship between the mitzva and the aveira that defines the case as one of mitzva ha-ba'a be-aveira.

            The Yerushalmi in Shabbat (13:3) states:

They asked Rabbi Ba: That which was stated elsewhere: If someone slaughtered his sin-offering on Shabbat, he achieved atonement, but he must bring another [sin offering]. Here too he should fulfill his obligation to rend his garment… The colleagues asked Rabbi Yose. Did not Rabbi Yochanan say in the name of Rabbi Shimon ben Yotzedek: [With] stolen matza one does not fulfill his obligation on Pesach? He said to them: There, it itself is a transgression; here, however, he committed a transgression. Would we say that if someone took matza from the private domain to the public domain, he does not fulfill his obligation on Pesach?

            Based on this passage in the Yerushalmi, the Shulchan Arukh rules in Hilkhot Keri'a: "If someone rends his garment over a deceased relative on Shabbat, even though he desecrates Shabbat, he fulfills his obligation of rending. [But] if someone rends a stolen garment, he does not fulfill his obligation of rending" (Yore De'a 340:28-29). The Shakh explains: "Because it is not the same as rending on Shabbat, for the garment itself is not a transgression, even though the action that he performed constitutes a transgression. But here the garment itself is a transgression" (end of no. 42).

            This gives rise to an interesting idea of mitzva ha-ba'a be-aveira. It is possible to fulfill one's obligation with a mitzva that was performed through the commission of an aveira. But if it itself is an aveira – the mitzva object is also an aveira object – one cannot fulfill one's obligation with such an article. When we speak of a mitzva being performed through the commission of the aveira of robbery, this means that the label of "stolen property" that adheres to the article makes it unfit for the performance of a mitzva.

            We see then that the Yerushalmi is lenient regarding a case where a person performs a mitzva through the commission of a transgression, but the object is not an aveira-object. And it stands to reason, according to this, that it would be stringent in the reverse case – where the object is indeed an aveira-object, but the person is not committing a transgression. For example, where other people use a stolen object without themselves transgressing the prohibition of robbery. This is the way the posekim understood the position of the Ramban in his Milkhamot regarding the passage dealing with avankari in our Gemara. Rashi, however, writes that the disqualification of mitzva ha-ba'a be-aveira applies only to the thief himself:

From the time that the fruit is picked it is gezel, and he who picks it steals it. Therefore, let them pick it and thus detach it and give it to you, so that they are the thieves, and you acquire it from them, and the owner has already despaired of all the fruit so that there is yi'ush by them, and afterwards it changes from their domain to your domain. And he maintains: yi'ush by itself does not effect a kinyan, but yi'ush and a change of domain does effect a kinyan. Even if [yi'ush alone] effects a kinyan – it is a mitzva ha-ba'a be-aveira; if you detach it from the ground, you will be the thieves. (30b, s.v. ve-karka)

            The Shulchan Arukh issued a similar ruling (Orach Chayyim 649:1) in the name of "there is one who says" (he refers to Orchot Chayyim, Hilkhot Lulav, no. 9), and the Magen Avraham, no. 3, brings a dispute among the Rishonim on the issue:

The case we are dealing with is before yi'ush, but nevertheless for other people it is not a mitzva ha-ba'a be-aveira. This is explicit in Rashi, p. 30, who writes: "Even if [yi'ush alone] effects a kinyan – it is a mitzva ha-ba'a be-aveira; but nevertheless for others it is not a mitzva ha-ba'a be-aveira. But the Milchamot implies that before yi'ush, even for others it is mitzva ha-ba'a be-aveira, since there was no kinyan yet. And thus it is explicit in the Gemara regarding the case of avankari, which says, let there be yi'ush and a change of domain, see there. Therefore, one should not be lenient.[2]

            These two understandings also find expression in a dispute among the Acharonim which we saw four weeks ago in our shiur on a stolen sukka. The Minchat Chinukh, it may be remembered, argued that mitzva ha-ba'a be-aveira does not constitute a disqualification of the mitzva object; it merely prevents fulfillment of the mitzva, since it does not conform with the will of God. From this he concluded that in a case where we do not require the fulfillment of a mitzva, but only that there be no nullification of a positive precept, e.g., regarding sukka after the first night of Sukkot, there is no disqualification of mitzva ha-ba'a be-aveira. This is not the case when the Torah disqualifies a stolen sukka, for then in addition to the law of mitzva ha-ba'a be-aveira, the sukka itself is disqualified. The Sha'arei Yosher disagrees, and argues that mitzva ha-ba'a be-aveira is clearly a disqualification of the mitzva object itself, like all the other disqualifications of sukka and the four species:

It is more reasonable to say that whatever we disqualify because of mitzva ha-ba'a be-aveira is like a disqualification of the thing itself. As the Gemara brings in Lulav ha-Gazul: "'Stolen' similar to 'lame'" – that is, that which is stolen is like the disqualification of an animal with a blemish regarding sacrifice (= and there this is brought as the source of the law of mitzva ha-ba'a be-aveira, and not as a separate law of gazul). And for this reason, it seems to me that that which we say that a stolen sukka is fit, because land cannot be stolen, even though it is forbidden to steal land, and so it should be a mitzva ha-ba'a be-aveira, see Chiddushei ha-Rashba[3] who writes as follows: The correct answer is that here, since he does not acquire it at all, and it remains in the domain of the original owner, and the mitzva does not remove it from the original owner's domain, it is not considered a mitzva ha-ba'a be-aveira. It is as if he had someone else's field in his domain; even though he commits a sin, the sukka is not disqualified thereby. Thus it seems to me. Thus far his words. What he means in my humble opinion is that a stolen sukka, since it does not leave the original owner's domain, there is no disqualification in the sukka itself; it is only that the person commits a sin while he performs the mitzva. But in the sukka itself there is no element of sin that disqualifies it, and it is as if he were committing the sin of robbery in someone else's field. This is not the same as theft of movables, for there the sin is committed in the sekhakh itself which is removed from the original owner's domain. This is similar to the distinction found in the Yerushalmi between one who rends his garment on Shabbat and one who eats stolen matza, for in the case of matza, it itself is a transgression, whereas in the case of rending, he [merely] commits a transgression. (sha'ar 3, chap. 19)

            Logically, however, we can distinguish between two different questions: Regarding the force of the law – is the law of mitzva ha-ba'a be'aveira regarded as a disqualification like all other disqualifications or merely a deficiency in the fulfillment of the mitzva[4]; and regarding the definition – is it a law regarding an aveira-object or an aveira-action. These Acharonim seem to understand that these two questions are interconnected: if it is a law in the action, it is merely a deficiency in the fulfillment of the mitzva, but if it is a law in the object, it is a disqualification like all other disqualifications.

            In light of this discussion, we shall try to examine the various positions found in the Rishonim regarding the question when stolen property is disqualified for a mitzva because of the law of mitzva ha-ba'a be-aveira.

THe position of Rashi and Rabbenu Tam

            As it may be remembered, our Gemara says:

"And you have brought that which was stolen, and the lame, and the sick" (Malakhi 1:13). "Stolen" similar to "lame" – just as the lame has no repair, so too the stolen has no repair, there being no difference between before yi'ush and after yi'ush. Granted before yi'ush – The Torah said: "If any man of you bring an offering" (Vayikra 1:2), and it is not his. But after yi'ush, surely he acquired it through yi'ush! Rather, because it is a mitzva ha-ba'a be-aveira.

            According to the simple understanding of the Gemara, the passage assumes that yi'ush alone effects a kinyan regarding stolen property (a position that was not accepted as law), but nevertheless the disqualification of mitzva ha-ba'a be-aveira applies even after yi'ush. Thus we find in Rashi:

Just as the lame has no repair – after time so that it might be offered as a sacrifice, for it is a permanent blemish. So too the stolen – we learn from it that it has no repair after time, even if there is yi'ush, where we heard its owner despair and say, 'Alas, for the financial loss.' Even though regarding acquisition we say in Bava Kama (68a) that he acquires it through yi'ush, and it is his, nevertheless it cannot be offered on the altar.

            In other words¸ despite the fact that at the time of the performance of the mitzva we are dealing with an object which the thief is under no obligation to return, and there is no problem with his holding on to it, nevertheless it may not be used for the fulfillment of a mitzva.

            Now, if we understand that the law of mitzva ha-ba'a be-aveira applies when the aveira-action allows for the fulfillment of the mitzva¸ as we proposed above according to Rashi, we must say that this applies even if the aveira-action is completed before the fulfillment of the mitzva.

On the other hand, if we wish to reconcile the simple understanding of the Gemara with the approach that we saw in Yerushalmi Shabbat, we must conclude that the label of "stolen property" adheres to the object and defines it as an aveira-object even after the thief acquires it. This seems to be the position of Rabbenu Tam. The Gemara in Bava Kama states: "From where do we know that yi'ush [alone] does not effect a kinyan? As it is stated: 'And you have brought that which was stolen, and the lame, and the sick' (Malakhi 1:13). 'Stolen' similar to 'lame' – just as the lame has no repair, so too the stolen has no repair, there being no difference between before yi'ush and after yi'ush" (67a-67b). According to the simple understanding of Ulla's words, Ulla is saying that yi'ush alone does not effect a kinyan. Rabbenu Tam, however, wishes to reconcile this with what is stated in our passage, and therefore he explains:

Rabbenu Tam says that yi'ush effects a kinyan in all cases, except for sacrifices because it is a mitzva ha-ba'a be-aveira… Rabbenu Tam brings further proof from the beginning of chapter Lulav ha-gazul where we disqualify a stolen lulav even on the second day of the festival, and Rabbi Yochanan explains that this is because of mitzva ha-ba'a be-aveira, as it is stated: "And you have brought that which was stolen, and the lame." "Stolen" similar to "lame" – there being no difference between before yi'ush and after yi'ush. Granted before yi'ush – it is not his. But after yi'ush, surely he acquired it through yi'ush! What is the reason? Is it not because it is a mitzva ha-ba'a be-aveira? This implies that he maintains that in all cases, yi'ush effects a kinyan, except for with respect to a mitzva. (Tosafot, Bava Kama 66a, s.v. amar)

            What does Rabbenu Tam mean when he says that in general yi'ush effects a kinyan, but regarding a mitzva, it does not effect a kinyan? It would appear that he means that the analogy between that which is stolen and that which is lame teaches us that, as opposed to what we might have thought, yi'ush does not wipe out the history of the article. Despite the fact that the thief is no longer under any obligation to return the article, it is still regarded as "stolen property," in a different category than the rest of his property. [According to this understanding of Rabbenu Tam, it is possible to distinguish between yi'ush alone, according to the opinion that yi'ush alone effects a kinyan, and yi'ush and a change of name, where there is a change of identity, and the label of "stolen property" may longer adhere to the article.]

The position of Ri

            A second opinion is brought in our Tosafot (s.v. ha), and also in the Tosafot in Bava Kama in the name of Ri, against Rabbenu Tam. According to this opinion, we are to understand the words of Ulla in Bava Kama in their plain sense, and we are to force this understanding onto Rabbi Yochanan in our passage, and say that they both maintain that yi'ush alone does not effect a kinyan, but only in combination with a change in name or a change in domain. In this shiur we shall not clarify the various positions regarding the kinyanim of gezel (with God's help, we shall deal with them next week in the context of the passage on p. 30b), but Tosafot says something that is very significant for our purposes.

If yi'ush alone effects a kinyan, it is his before he consecrates it, and it is no longer regarded as a mitzva ha-ba'a be-aveira. This is also proven below in the passage regarding avankari: "And let him acquire it with a change of name," this implying that if he acquires it, he can use it to fulfill his obligation, and it is not regarded as a mitzva ha-ba'a be-aveira. But if yi'ush alone does not effect a kinyan, and he acquires it through the consecration, because there is now yi'ush and a change of name, then it is considered mitzva ha-ba'a be-aveira. And in the entire passage where it is not regarded as a mitzva ha-ba'a be-aveira where he acquired it, we can say that he acquired it earlier with the binding, even according to the one who says that binding is not required - surely he acquired it before Yom Tov, when he was not yet obligated in the mitzva. Or even on Yom Tov, for it is not like one who consecrates [an animal] where the kinyan and the consecration come at the same time.

            In other words, not only does Rabbi Yochanan not maintain that yi'ush alone effects a kinyan, he cannot maintain such a position, for if yi'ush alone would effect a kinyan, the law of mitzva ha-ba'a be-aveira would not apply.

            We shall try once again to understand the law according to the two understandings of mitzva ha-ba'a be-aveira:

            If we understand that the law of mitzva ha-ba'a be-aveira states that one cannot fulfill a mitzva through the commission of a transgression, we must say that the fact that the article was obtained by way of theft is a matter of history, but now the person comes to perform the mitzva with an article that belongs to him. In contrast, when a person fulfills a mitzva with an article that he is under obligation to return, his very holding on to the article constitutes a transgression, for he is obligated to return it at every moment, and thus the performance of the mitzva involves a transgression.

            If we understand like the Yerushalmi, that the law of mitzva ha-ba'a be-aveira states that an aveira-object cannot be used for a mitzva, we must say that when the article is acquired by the thief, it no longer bears the label of "stolen property," and though it was obtained by way of a transgression, it is no longer regarded as an aveira-object, but rather it is similar to one who rends his garment on Shabbat.

            According to both explanations, however, we must ask why it is that when the thief consecrates the article after yi'ush, and thus removes the obligation to return the article (through the law of yi'ush coupled with a change of name or a change of domain), the sacrifice is still disqualified by virtue of the law of mitzva ha-ba'a be-aveira, even according to the Ri. Surely, at the time of the offering, the animal is already fit for the mitzva!

            Rabbi Shelomo Fischer, shelita, discusses this point in his book, Beit Yishai (no. 124), and the explanation that he offers draws the Ri to the understanding of the Yerushalmi. The Baraita in Temura 6b states:

"But whatever has a blemish, that shall you not offer" (Vayikra 22:20). What does this teach us? If it means: you shall not slaughter, surely this is stated below. Rather what is taught by "You shall not offer"? You shall not consecrate. From here [the Sages] said: He who consecrates animals with a blemish for the altar violates [a prohibition].

            Rabbi Fischer writes:

This proves that the consecration of an animal contains an element of sacrifice. That is to say, that the setting aside of a sacrifice is not merely an act of creating a cheftza [of a sacrifice], but rather it is an act of service and appeasement regarding the owner, that he presents God with a gift, as it were… See Tosafot, Bava Kama 67, who write that regarding mitzva ha-ba'a be-aveira, wherever the stolen property is acquired by the thief prior to the performance of the mitzva, the law of mitzva ha-ba'a be-aveira does not apply. But nevertheless they write that a stolen sacrifice is unfit because of mitzva ha-ba'a be-aveira, despite the fact that at the time of the offering, the thief has already acquired the stolen property. And this is because at the time of the consecration he had not yet acquired it. This is understandable only according to what we said that the consecration is regarded as the beginning of the fulfillment of the mitzva of offering a sacrifice… And even though it follows from our words that this element of sacrifice in the consecration is not indispensable, so that even a sacrifice that did not have such a consecration is fit, nevertheless the disqualification of mitzva ha-ba'a be-aveira applies because of this consecration. And we do not say: Remove this consecration and let it be fit. For the Sha'arei Yosher (sha'ar 3, chap. 19) has already explained that mitzva ha-ba'a be-aveira is a disqualification of the mitzva-object, as we learned: "Stolen" similar to "lame," that the sacrifice itself is disqualified. Since the label of disqualification of mitzva ha-ba'a be-aveira adheres to this sacrifice in the wake of the consecration, this disqualification cannot be removed, and we cannot say: Remove this consecration.

            Were it true that this principle, that the consecration of an article to the altar is regarded as the first stage of its offering, is a necessary part of the sacrificial process, it would be possible to reconcile it even with the understanding that mitzva ha-ba'a be-aveira is a law in the aveira-act and the mitzva-act. Since, however, this principle is not indispensable, Rav Fischer inclines in the direction of the Yerushalmi. He adds, however, a very novel element, that the disqualification of the article does not stem only from the transgression itself, but from the fact that an attempt is being made to fulfill a mitzva with that article, and therefore it becomes labeled as disqualified for a mitzva even in the future. This point requires further clarification.

            In my humble opinion, the wording of Tosafot in Sukka allows for a slightly different understanding that is not restricted to the world of sacrifices. In the continuation, Tosafot raises an objection from the Gemara in the ninth chapter of Bava Kama. The Gemara there implies that even following a kinyan effected by a change in the stolen object, according to those opinions that such a change effects a kinyan, the law of mitzva ha-ba'a be-aveira still applies:

Abaye said: Rabbi Shimon ben Yehuda, Beit Shammai, Rabbi Eliezer ben Ya'akov, Rabbi Shimon ben Elazar and Rabbi Yishmael all maintain that a change leaves the article in its previous status…  What about Rabbi Eliezer ben Ya'akov? As it was taught:  Rabbi Eliezer ben Ya'akov says: If one stole a se'a of wheat and kneaded it and baked it and set aside a portion of it as challa, how would he be able to recite a blessing? He would surely not be pronouncing a blessing, but rather a blasphemy, and to such a one could be applied the words: "The robber pronounces a blessing [but in fact] blasphemes the Lord"… Raba said: What ground have we for saying that all these Tannaim follow one view? … Perhaps Rabbi Eliezer ben Ya'akov meant his statement there to apply only to a blessing on the ground that it is a mitzva ha-ba'a be-aveira.  (93b-94a)

            And the Tosafot on our passage write:

That which is implied at the beginning of chapter Ha-Gozel regarding one who stole a se'a [of wheat], that even though a change effects a kinyan, it is still regarded as a mitzva ha-ba'a be-aveira, even though he acquired it through the change before he became obligated in the mitzva of challa – there it is merely a refutation. Or else, a blessing is different because it involves a declaration to heaven.

            We shall not expand here upon the answers proposed by the Tosafot,[5] but attention should be paid to the formulation of the question: "he acquired it through the change before he became obligated in the mitzva of challa" – the change occurs already at the time of the grinding of the flour, and the obligation to set aside challa begins only at the time of kneading, after the kinyan was effected. The implication is that were we dealing with a case of a thief who stole flour, and the change occurred at the time of the kneading, there would be no question on Ri, and he would not be forced to say that what the Gemara says is merely a refutation. This requires explanation, for surely the kneading of the dough is not the same thing as consecration to the altar, which can be viewed as the beginning of the sacrificial process!

            So too, it is interesting to note the wording of the Tosafot cited above:  "And in the entire passage where it is not regarded as a mitzva ha-ba'a be-aveira where he acquires it, we can say that he acquired it before with the binding, even according to the one who says that binding is not required - surely he acquired it before Yom Tov, when he was not yet obligated in the mitzva. Or even on Yom Tov, for it is not like one who consecrates [an animal] where the kinyan and the consecration come at the same time." The Tosafot argue that it is easier to understand the fitness of the mitzva if the kinyan was effected before Yom Tov, and even if it was effected on Yom Tov, it may be understood as long as it was effected before the performance of the mitzva.

            In other words, from the Tosafot we see a general rule, that is not limited to sacrifices, that an article's entry into the realm of a mitzva in a state of disqualification, defines it as disqualified for that mitzva. Only if the kinyan is effected prior to the article's entry into the realm of the mitzva – consecration of the sacrifice, kneading of the dough, Yom Tov or the taking of the lulav – only then does the disqualification of mitzva ha-ba'a be-aveira not apply.

THe position of the Ritva

            The Ritva, in several places in our chapter (29b, 31a, and elsewhere) and in other places (Pesachim 35b, Rosh ha-Shana 28a, and elsewhere) develops a different approach regarding the definition of mitzva ha-ba'a be-aveira. According to him, the law of mitzva ha-ba'a be-aveira only applies in the situation where a person commits a transgression through the fulfillment of a mitzva. Regarding stolen property, such a situation only exists according to the position that yi'ush alone does not effect a kinyan, and only after yi'ush, when the fulfillment of the mitzva will complete the thief's kinyan. This is possible in two cases:

1)                           Yi'ush and a change of name – using the article for a mitzva gives it a new name, and thus the thief completes his kinyan (thus, for example, he says in Pesachim: "If he stole baked matza, and there is yi'ush, and by way of the mitzva there is a change of name, for at first it was bread, and now it is matza").

2)                           Yi'ush and a change of domain – the Gemara on p. 9a says that the name of God adheres to articles used for a mitzva (the Gemara is talking there about sukka, but the Ritva understands that the same applies to other mitzvot), and therefore they are forbidden for ordinary mundane use. Clearly, we are not dealing with real consecration with all the laws of trespass, but the Ritva understands that this is serious enough to be regarded as a change of domain that effects a kinyan with regard to stolen property. The Gemara in Bava Kama (76a, 79a) uses an expression regarding the possibility of obligating fourfold or fivefold compensation for consecration, based on the law of sale: "What difference does it make if he sold it to an ordinary person or he sold it to heaven." The Ritva uses this wording to explain the application of the law of yi'ush and change of domain in a case of using an article for a mitzva.

The Ritva writes as follows:

Mitzva ha-ba'a be-aveira only applies where the mitzva assists in the commission of the transgression, where through the sanctity of the mitzva he acquires the article and removes it from the domain of the original owner, for example where there had been mere yi'ush which does not effect a kinyan, and when he consecrated it for its mitzva, it was as if he sold it. For what difference does it make whether he sold it to heaven or he sold it to an ordinary person. Now through the mitzva there is yi'ush and a change of domain which effects a kinyan, and therefore it is not pleasing to God. But wherever the mitzva does not assist in effecting the kinyan, and does not remove the article from the domain of the original owner, it does not become disqualified for sacrificial use or for a mitzva. Even though he committed a transgression by stealing it, it is like other transgressions, or as if he stole another article that does not disqualify this article from this mitzva. Therefore, wherever he acquired the article through yi'ush and a change of domain or a physical change, so that he is only obligated to return money to the original owner, even though he has not yet paid him, and he commits a sin by withholding money owed to the other person - the article itself belongs to him completely, and the rule of mitzva ha-ba'a be-aveira does not apply. (29b)

            The Ritva might understand that the Torah does not want to help the thief acquire the stolen property through one of its mitzvot, and the disqualification of the mitzva prevents the kinyan from taking effect. Alternatively, the Torah is not prepared to recognize an action that involves the commission of a transgression as an act of mitzva. There is a practical difference between these two explanations in the case where a person consecrated a sacrifice after yi'ush. According to the first explanation, there is room to say that the consecration does not take effect, whereas according to the second explanation, it clearly takes effect, though the sacrifice will be disqualified (this issue is discussed in Gittin 55b, and by the Rashba, ad loc.). In any event, the law clearly relates to the mitzva­-act and the aveira-act.

            In next week's shiur, we will relate to three more questions regarding the rule of mitzva ha-ba'a be-aveira: To which mitzvot does this rule apply, to which transgressions does it apply, and what is the reasoning of Shemu'el who says that a stolen lulav is fit for the mitzva after the first day. See Rambam and Ra'avad, Hilkhot Lulav 8:9; Ramban, Pesachim 35a, and in the Milchamot on our passage (p. 15a): "aval ha-gazul… u-me'ira ke-margalit; Rosh, sec. 3: "u-be-gazul…"

Translated by David Strauss