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.
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.
Today’s section continues to deal with the concept of “a commandment performed through a transgression.”
In Isaiah 61 God says that he hates stolen sacrifices. But why, the darshan seems to ask. If everything in the whole world belongs to God then it doesn’t seem to matter whether this particular animal belongs to me or to someone else. Why shouldn’t God desire it as a sacrifice and why should this matter to God? The answer is that God shuns stolen sacrifices not because it matters to God but because there is a moral lesson to be learned. God is like the King who pays the tax collector. The tax is going to go right back into his pocket anyway. So why pay? The answer is that paying the taxes teaches the traveler to act morally and not to evade taxes, i.e. not to steal.
We should note that the issue of paying the Temple tax (half shekel per year) was contentious in ancient Judaism. Jesus, who was after all a Jew, seems to have been adamantly opposed to this tax. His position is articulated in Matthew 17:24-26:
After Jesus and his disciples arrived in Capernaum, the collectors of the two-drachma tax came to Peter and asked, “Doesn’t your teacher pay the temple tax?” “Yes, he does,” he replied. When Peter came into the house, Jesus was the first to speak. “What do you think, Simon?” he asked. “From whom do the kings of the earth collect duty and taxes–from their own sons or from others?” “From others,” Peter answered. “Then the sons are exempt,” Jesus said to him. “But so that we may not offend them, go to the lake and throw out your line. Take the first fish you catch; open its mouth and you will find a four-drachma coin. Take it and give it to them for my tax and yours.”
Jesus believes that Jews shouldn’t have to pay this particular tax. In contrast, the rabbis were adamant that paying taxes was a good thing, one which brought the Jew close to God. In this sugya in Sukkah the message is that one should not bring a stolen sacrifice, but the broader picture is that bringing things to God, taxes and sacrifices, is not something that alienates us from God. It brings us closer.
R. Ammi, an amora, agrees with the opinions we saw in the previous sections. He explains that a dried up lulav is invalid for use because it is not “goodly”—הדר. A stolen lulav cannot be used because that constitutes a commandment fulfilled by means of a transgression.
For the first time we hear a rabbi who limits the mishnah to the first day. Only on the first day of the festival is a stolen lulav disqualified. On subsequent days, since one can use a borrowed lulav (everyone agrees with this) one can also use a stolen lulav. To R. Yitzchak and Shmuel the problem with a stolen lulav is that it doesn’t belong to the one using it. But once that requirement is waived (pun intended), meaning from the second day and onwards, even a stolen lulav can be used. They do not believe in the concept of a “commandment performed through a transgression.”
In yesterday’s section we saw that Shmuel held that a stolen lulav is disqualified only on the first day of the festival. Today, another amora challenges this halakhah.
R. Nahman b. Yitzchak analyzes the mishnah that teaches that a stolen lulav is disqualified. First he notes that the mishnah disqualifies only a stolen lulav. This implies that a borrowed lulav is valid. Otherwise the mishnah would have stated that a borrowed lulav is invalid.
Now when is a borrowed lulav valid? It can’t be on the first day of the festival because the Torah says, “And you shall take from yours on the first day…” which to the rabbis means that on the first day one must own one’s lulav. Therefore, the mishnah must refer to the second day and onward. From the second day and onward a borrowed lulav is valid but a stolen one is invalid. This is a difficulty for Shmuel who said that on the second day a stolen lulav is valid.
Rava defends Shmuel, again claiming that the mishnah refers only to the first day. On subsequent days a stolen lulav is valid. The question now becomes why the mishnah mentions a stolen lulav and not a borrowed one. This was the difficulty raised on Shmuel and it must be answered. Rava answers that it is obvious that a borrowed lulav doesn’t belong to the owner. People don’t give up hope of getting back objects they loaned out (at least not immediately) and therefore, clearly the borrowed lulav can’t be used. The mishnah didn’t even need to teach this. However, we might have thought that a stolen lulav belongs to the one who steals it because the owner will immediately have despair of ever getting it back. Therefore, the mishnah has to teach us that this is not true. One cannot use a stolen lulav on the first day of the holiday because its owner does not automatically despair of recovered. However, on the second day and onwards, one can use the stolen lulav because one doesn’t need to own the lulav after the first day.
Today’s section consists of a story related to the prohibition of using a stolen hadas (myrtle) as part of the four species.
R. Huna is offering halakhic instructions to Jewish merchants who are buying myrtles from non-Jews to sell to Jews for Sukkot. He wants to avoid the possibility that these myrtles would halakhically be considered stolen. The problem is that we can assume that the non-Jew has stolen the land, perhaps by government repossession which seems to have been a common Jewish fear during the period. Land cannot be acquired when it is stolen. This means that technically it still belongs to the owners. So, R. Huna instructs the merchants to tell the non-Jews to cut the myrtles down themselves. This will effect immediate assumption of abandonment on the part of the owners. But this is not enough to effect a transaction. However, change of domain aids in allowing the technical transfer of ownership. So the change of domain will occur when the merchant acquires it. When the Jew then uses it, it will be his own. It will no longer be a stolen lulav.