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Sukah 31

1) HOW TO STEAL A SUKAH

QUESTION: The Gemara says that according to the Rabanan, if one steals a Sukah (by pushing its owner out of it) or builds a Sukah in Reshus ha'Rabim, he is permitted to use that Sukah. The Rabanan hold that land cannot be stolen ("Karka Einah Nigzeles"), and thus the Sukah is not considered a stolen Sukah. Furthermore, if one steals wood and builds it into his Sukah, he may also use that Sukah, even though it is built of stolen materials. Since he effected a change in the object that he stole (Shinuy Ma'aseh or Shinuy ha'Shem), or because of "Takanas ha'Shavim" (an enactment of the Rabanan which exempts a person from returning objects that he stole and built into his house, in order to make it easier for him to do Teshuvah), he has been Koneh the wood that he stole and fulfills the Mitzvah with this Sukah.

The Rabanan (27b) derive from the verse that a stolen Sukah is Pasul. RASHI in our Sugya asks, to what case were they referring? In every case of a stolen Sukah, it either becomes the property of the thief or it cannot be stolen in the first place, and the thief therefore fulfills the Mitzvah in that Sukah!

Rashi answers that the only case of a stolen Sukah which will actually be Pasul is when one steals a Sukah that is built upon a boat or an animal (any portable Sukah), i.e. a Sukah that is stolen as one whole unit from the ground on which it stood. There is no Shinuy Ma'aseh or Shinuy ha'Shem in such a case (because nothing in the stolen object has changed), nor does "Takanas ha'Shavim" apply (because the thief did not exert considerable effort into making it a Sukah, since it already was a Sukah). Since it is not land, it can be stolen.

Rashi's case includes the theft of any fully built Sukah that is not attached to the ground. For example, if Reuven builds a Sukah in Shimon's courtyard and the Sukah is not attached to the ground, and Shimon throws him out of his Sukah, Shimon has performed a theft. As a result, the Sukah is considered stolen and Shimon cannot fulfill the Mitzvah with it. (The reason why Rashi mentioned only a Sukah on a wagon is because that is the more frequent case of a stolen Sukah.)

TOSFOS (DH Aval) suggests that there is another case of a stolen Sukah, even with a Sukah that is attached to the ground. If Reuven builds a Sukah on Shimon's land and attaches it to the ground (so that it has a status of land, because whatever is attached to land is considered like land), and then Shimon throws Reuven out of the Sukah, such a Sukah will be considered stolen and Shimon will not be able to fulfill the Mitzvah in that Sukah. Why is this Sukah, which is attached to the land, not like the land itself which cannot be stolen?

Tosfos answers that the reason land cannot be stolen is because it is "b'Chezkas Ba'aleha" -- one cannot make a Kinyan on land by stealing it because it cannot be removed from the owner's property (because it *is* his property). Here, the land underneath the Sukah is Shimon's land, and thus if Shimon throws Reuven out, he has successfully "stolen" the Sukah, because it is outside of Reuven's property. (Even the land that the Sukah is on is not Reuven's.)

Why did Rashi not give this case of a Sukah Gezulah, a stolen Sukah?

ANSWER: REBBI AKIVA EIGER asks a very strong question on Tosfos' case of a stolen Sukah. According to Tosfos, the principle that "land cannot be stolen" ("Karka Einah Nigzeles") would not seem to be derived from any verse in the Torah. Rather, it is just the physical impossibility that precludes theft of land theft -- it cannot be picked up and placed in somebody else's Reshus.

According to Tosfos, then, what does the Gemara in Bava Kama (117b) mean when it says that there is no theft of Avadim (slaves), because Avadim are compared in a verse to land? There *is*, in theory, theft of land; it is just that in a practical sense there is no way to steal it. Since, in practice, there is a way to steal Avadim, then there should exist theft of Avadim! Indeed, if we were to find a way to steal land -- such as the case of Tosfos -- then even land could be stolen! If so, then Avadim should also be able to be stolen! Why is there no Gezeilah of Avadim?

We can add to this question and ask that there in Bava Kama, Rebbi Eliezer cites a verse (a "Klal, Prat, u'Klal") from which he learns that there is no Gezeilah of land. From the same verse, he derives that there is no Gezeilah of Shetaros (contracts). When it comes to Shetaros, which certainly can be stolen in practice, it is the Gezeiras ha'Kasuv which prevents them from being stolen (and not the impossibility to steal them). Why, then, does Tosfos say that land is different, and that the reason why it cannot be stolen is because it is not practically possible? It is clear from the Gemara there that the reason why land cannot be stolen is not because of the practical impossibility, but because of a Gezeiras ha'Kasuv. (Therefore, in Tosfos' case, the Sukah should not be considered stolen, because land is not stolen.)

Furthermore, if the reason land is not stolen is because of the practical impossibility to steal it, then how do we explain the opinion of Rebbi Eliezer in Bava Kama who maintains that land *can be* stolen (even in a normal case)? If it cannot be stolen because of the practical impossibility, then how can there be an opinion that "Karka Nigzeles?"

Tosfos makes his opinion about the impossibility of stealing land evident in many places, and in each Rebbi Akiva Eiger asks similar questions (see, for example, Bava Metzia 61a, Tosfos DH Ela). The PNEI YEHOSHUA (in Bava Metzia, ibid.) answers these questions. He explains that Tosfos means that there are two parts to "Gezeilah." The first part is the prohibition (the Lav) of "Lo Tigzol" -- "Do not steal." The second part of Gezeilah are the Kinyanim created by the act of Gezeilah. When a person steals an item, certain Kinyanim take effect which obligate him to return the stolen object, or to pay for it if it becomes lost or broken, or to acquire it through Ye'ush and/or if he makes a Shinuy or gives it to another person.

Tosfos is saying that the Gezeiras ha'Kasuv (mentioned in Bava Kama) refers only to the Kinyanim effected by Gezeilah. That is, if a person steals someone else's land, those Kinyanim do not apply. For example, if a river overflows and washes away the soil of the stolen field, the thief does not have to pay the owner for the loss (according to the Chachamim there who hold "Karka Einah Nigzeles"). No Kinyan can be made on the stolen field that would obligate the thief to pay. Even if the thief performs an act of Chazakah (such as digging into the field), that does not effect a Kinyan, and the field is not considered stolen and the thief has no responsibilities towards that land. That is what the Gezeiras ha'Kasuv tells us. (The "Klal Prat u'Klal" cited in Bava Kama is learned from the verse which is referring to the obligations created by the Kinyan of Gezeilah).

However, with regard to the Lav of "Lo Tigzol," if a person finds a way of physically stealing the land, then he will transgress the Lav of "Lo Tigzol." (Physically stealing is defined as removing an object from the property of its owner.) However, as we just said, he will not have to pay back the owner if the land gets destroyed, because the Gezeiras ha'Kasuv teaches that he makes no Kinyan Gezeilah on land. That is why Tosfos says that there *is* Gezeilah for land as far as whether or not it is considered a "Sukah Gezulah" (such as in the case of the Sukah that Reuven built on Shimon's land), since the Gezeiras ha'Kasuv does not address the applicability of the Lav of "Lo Tigzol" to land. Similarly, if one steals Avadim, he will also be transgressing the Lav of "Lo Tigzol," but he will not have the responsibilities created by Kinyanei Gezeilah.

Rebbi Eliezer (in Bava Kama), who says that land can be stolen ("Karka Nigzeles"), maintains that even if one makes a Kinyan by performing an act of Chazakah on someone else's land, such a Kinyan is also able to effect Gezeilah. It will obligate the thief to return the land if it is washed away by a river, and it will cause the property to become the thief's with Ye'ush and/or Shinuy. Chazakah works to make the Kinyanim of Gezeilah. Since Chazakah works to make the Kinyanim of Gezeilah, it also works to make the person liable for "Lo Tigzol." (The Chazakah has removed the land from the property of its owner by virtue of causing it to be the thief's property through Ye'ush and/or Shinuy.)

The CHAZON YECHEZKEL (Sukah 1:2) points out that this explanation of the Pnei Yehoshua for Tosfos in Bava Kama will also answer Rebbi Akiva Eiger's question on Tosfos in our Sugya. Tosfos is not saying that one can makes Kinyanei Gezeilah on someone else's Sukah that is built in his land, but merely that he transgresses the Lav of "Lo Tigzol" and thus the Sukah is considered a stolen Sukah. The thief will not be able to use the Sukah for a Mitzvah both because it is not "Lachem, and because it will be a "Mitzvah ha'Ba'ah b'Aveirah" (Tosfos Sukah 9a, DH ha'Hu).

Now we understand why Rashi does not mention Tosfos' case of a stolen Sukah. Rashi may hold that the Gezeiras ha'Kasuv that tells us that land cannot be stolen applies not only to the Kinyanim of Gezeilah, but even to the Lav of Gezeilah! Therefore, if Shimon throws Reuven out from Reuven's Sukah that he built on Shimon's land, Shimon will *not* be transgressing "Lo Tigzol," and it will not be a stolen Sukah at all (just like stolen land is not considered stolen). That is why Rashi did not mention this case as an example of a stolen Sukah!

31b

QUESTIONS: Rava says that one should not fulfill the Mitzvah with a Lulav of Avodah Zarah, but b'Di'eved if one used it, he has fulfilled his obligation. The Gemara challenges Rava from our Mishnah (29b) which states that one cannot use a Lulav of an Asheirah, even b'Di'eved. The Gemara answers that our Mishnah is discussing "Asheirah d'Moshe" (see our "Background to the Daf" notes).

RASHI explains that when Rava says that one may not use a Lulav of Avodah Zarah l'Chatchilah, it refers to a Lulav which is "Meshamshei Avodah Zarah" (that is, a Lulav used to service the Avodah Zarah, such as to sweep and clean up in front of it), or to a Lulav which is "Takruvos Avodah Zarah" (that is, a Lulav that was thrown at the Avodah Zarah as part of the sacramental ritual). The Mishnah, though, is discussing an "Asheirah d'Moshe," which, Rashi explains, refers to the Asheiros in Eretz Yisrael at the time the Jewish people entered the land. Those Asheiros had to be burned, even though they belonged to Nochrim. The Gemara in Avodah Zarah says that even though the Avodah Zarah of a Nochri can become Batel (that is, if the Nochri does a denigrating act with it, such as breaking it or abusing it, the Avodah Zarah becomes permitted for use and is no longer Asur b'Hana'ah), the Avodah Zarah of the Nochrim in Eretz Yisrael at the time the Jews entered the land could not be become Batel. Therefore, a Lulav from such an Asheirah tree may not be used, even b'Di'eved.

There are several problems with Rashi's explanation here.

(a) Why does Rashi explain that the type of Lulav of Avodah Zarah to which Rava is referring (when he says that one should not use it l'Chatchilah but b'Di'eved it may be used) is a Lulav of "Meshamshei" or "Takruvos" of Avodah Zarah? Rava could be referring to any type of Lulav of Avodah Zarah, even a Lulav which was actually worshipped, which became Asur b'Hana'ah just like the Asheirah in the Mishnah!

It is clear why Rashi did not explain that Rava is referring to a Lulav that a *Jew* worshipped, because then it would certainly not be valid for the Mitzvah because it must be burned and is "Ketutei Michtas Shi'urei" (see Background Notes). But why did Rashi not explain simply that Rava is referring to a Lulav which a Nochri worshipped? Since it is not "Asheirah d'Moshe," the rule of "Ketutei Michtas Shi'urei" should not apply because the Nochri could be Mevatel it and make it permitted! Why did Rashi opt to explain Rava's statement as referring specifically to "Meshamshei" or "Takruvos" Avodah Zarah?

(b) Rashi explains that "Ketutei Michtas Shi'urei" does not apply to "Meshamshei" and "Takruvos" Avodah Zarah, because those items do not have to be burned. This may be understood as follows. Firstly, the Gemara in Avodah Zarah (51b) says that "Meshamshei" Avodah Zarah do not have to be burned, but rather they may be buried, even if they cannot become Batel. Perhaps Ketutei Michtas Shi'urei" does not apply unless the object must specifically be *burned*. Furthermore, since the actual Avodah Zarah of a Nochri has Bitul and is permitted to be used after Bitul, then certainly the "Meshamshei" Avodah Zarah have Bitul and need not be burned.

However, "Takruvos" Avodah Zarah does have to be burned and cannot become Batel, and the rule of "Ketutei Michtas Shi'urei" certainly does apply to it (Yevamos 103b)! If so, how can Rashi say that one, b'Di'eved, fulfills the Mitzvah of Lulav with "Takruvos" Avodah Zarah? It is "Ketutei Michtas Shi'urei" and should be Pasul!

(c) The Acharonim (KAPOS TEMARIM, RASHASH) ask that the Gemara in Avodah Zarah (50b) says that throwing a stick in front of Avodah Zarah does not make the stick "Takruvos" Avodah Zarah. It is not similar to pouring wine in front of Avodah Zarah, which does make the wine "Takruvos," because an object becomes "Takruvos" Avodah Zarah only when it is offered before Avodah Zarah the same way Korbanos (or, in this case, Nesachim) are is offered on the Mizbe'ach in the Mikdash. Since wine is poured on the Mizbe'ach, it becomes "Takruvos" when offered to Avodah Zarah. Throwing a stick in front of Avodah Zarah, though, does not resemble any offering in the Beis ha'Mikdash and therefore does not become "Takruvos." Why, then, does Rashi say that throwing a stick makes it "Takruvos" Avodah Zarah? It should not become Asur at all!

(d) Why does the Gemara answer that the Mishnah is talking about "Asheirah d'Moshe" -- an Asheirah at the time that Eretz Yisrael was conquered, which does not have Bitul? All it has to say is that the Mishnah is talking about an Asheirah of a Jew! An Asheirah of a Jew does not have Bitul, and thus it may not be used for the Mitzvah because it is "Ketutei Michtas Shi'urei!" The Avodah Zarah of a Nochri does have Bitul and thus it is not considered destroyed and it may be used for the Mitzvah (b'Di'eved). (This indeed is the way TOSFOS and others explain the answer of the Gemara. "Asheirah d'Moshe" means simply an Avodah Zarah of a Jew.)

(e) According to Rashi, who says that the Lulav of Avodah Zarah is one that is "Meshamshei" or "Takruvos" Avodah Zarah, what is the question altogether on Rava from the Mishnah? Both Rava and the Mishnah could be referring to an Asheirah (or other Avodah Zarah) of a Jew. The difference is that the Asheirah in the Mishnah is something that was actually worshipped, and since it must be burned it is "Ketutei Michtas Shi'urei." Rava, though, was talking about a Lulav that was only "Meshamshei" Avodah Zarah, and since it is not burned, but only buried, it is not "Ketutei Michtas Shi'urei!"

ANSWERS:

(a) Why did Rashi not explain that the Lulav of Avodah Zarah which Rava is discussing is simply a Lulav that was worshipped as Avodah Zarah?

TOSFOS (DH ba'Asheirah) and other Rishonim ask a question on Rava's statement. The Gemara in Avodah Zarah (42a) says that if a Jew picks up a Nochri's Avodah Zarah, the Nochri can no longer be Mevatel it. The moment the Jew picks it up, he is Koneh the Lulav and it becomes the Avodah Zarah of a Jew, and the Avodah Zarah of a Jew has no Bitul. If so, how can Rava say that a person fulfills (b'Di'eved) the Mitzvah with a Lulav of Avodah Zarah? If it is a Jew's Avodah Zarah, then it is "Ketutei Michtas Shi'urei." And even if it is a Nochri's Avodah Zarah, in order to fulfill the Mitzvah the Jew has to pick it up -- but when he picks it up it thereby becomes his and it is "Ketutei Michtas Shi'urei!" This question is compounded by the requirement that on the first day of Sukos, a Lulav must be "Lachem"; it must belong to the Jew who is using it. How, then, can one be Yotzei the Mitzvah of Lulav on the first day of Sukos with a Lulav of Avodah Zarah? It must belong to a Jew!

Rashi was also bothered by this question. To address this question, Rashi explains that Rava is talking about "Meshamshei" Avodah Zarah. "Meshamshei" Avodah Zarah is different than real Avodah Zarah, for even after a Jew is Koneh "Meshamshei" Avodah Zarah of a Nochri, it can still become Batel.

Why should it be different from Avodah Zarah itself? Why should it have Bitul even after a Jew is Koneh it? The RA'AVAD (in Avodah Zarah 52a, and in Sefer Lulav ha'Gadol, as explained by the RAMBAN and ME'IRI) explains that if the Avodah Zarah itself is in the hands of the Nochri, then the Nochri can be Mevatel his own Avodah Zarah. When the Nochri is Mevatel his Avodah Zarah, then all of the "Meshamshim" become Batel as well, even if *they* are in the hands of Jews, because they are only secondary to the Avodah Zarah itself. Thus, even "Meshamshim" that presently belong to a Jew they can still have Bitul. That is why Rashi explains that Rava is talking about "Meshamshei" Avodah Zarah.

(b & c) The second question was that we know that "Takruvos" Avodah Zarah remains forbidden forever and does not have Bitul. Why, then, can someone fulfill the Mitzvah (d'Di'eved) with it? It should be "Ketutei Michtas Shi'urei!"

The third question answers the second one. Throwing a stick in front of Avodah Zarah does not resemble any type of service that was done in the Beis ha'Mikdash, and therefore a Lulav that was thrown in front of Avodah Zarah is not considered "Takruvos" Avodah Zarah. Since it does not become Asur as "Takruvos," it does not have to be burned, and thus it is not "Ketutei Michtas Shi'urei" and it may be used, b'Di'eved. However, if it does not become Asur, then why does Rava say that it may not be used l'Chatchilah for the Mitzvah?

The CHASAM SOFER cites the RITVA (Avodah Zarah 50a) who says in the name of the RA'AVAD that even if it does not become "Takruvos" Avodah Zarah, it is at least serving some menial purpose on behalf of the Avodah Zarah, so it is no worse than "Meshamshei" Avodah Zarah (such as an item used to sweep and clean in front of the idol). Therefore, it is Asur b'Hana'ah because it has a status of "Meshamshei" Avodah Zarah. It can still be made Batel like any other Meshamshei Avodah Zarah of a Nochri. (The SHA'AR HA'MELECH, Hilchos Sukah 8:1, DH v'Hineh, cites the TALMIDEI RABEINU YONAH in Avodah Zarah 2b, who also write that any "Takruvos" becomes Asur b'Hana'ah -- although it does not have to be burned like Takruvos Avodah Zarah -- even if it is not offered in the Mikdash that way, probably because of the Ra'avad's logic that they become "Meshamshei" Avodah Zarah.)

This is what Rashi means when he says that a Lulav that was "Takruvos" Avodah Zarah is Asur -- being used as "Takruvos" is another way for it to become "Meshamshei" Avodah Zarah.

(d) Why did the Gemara not answer that the Mishnah is talking about the Asheirah of a Jew (which does not have Bitul), and Rava is referring to a Lulav of Avodah Zarah of a Nochri (which does have Bitul)?

The answer is that the Gemara understood that since the Mishnah does not specify what type of Asheirah is Pasul, it can be assumed that it refers to all types of Asheirah, even that of a Nochri. That is why the Gemara did not say simply that the Mishnah is referring to the Asheirah of a Jew. That presents a problem, though, since we know that an Asheirah of a Nochri has Bitul (and thus it should be valid, b'Di'eved, for the Mitzvah)! The Gemara answers that there is a type of Asheirah of a Nochri which does not have Bitul and which will indeed be Asur forever, and will be "Ketutei Michtas Shi'urei" -- that is the Asheirah of the Nochrim at the time the Jews entered the land of Israel.

(e) Why did the Gemara not answer simply that the Mishnah is referring to Avodah Zarah itself (which has to be burned), while Rava is referring to "Meshamshei" Avodah Zarah (which does not have to be burned)? Why did it have to say that the Mishnah is specifically referring to Avodah Zarah at the time of the entry into Eretz Yisrael?

Many Rishonim (TOSFOS, Yevamos 104a, RABEINU AVRAHAM MIN HA'HAR here) prove that anything that is Asur b'Hana'ah forever, even though it does not have to be burned, is considered "Ketutei Michtas Shi'urei" (since there is nothing to do with it but burn it). This is apparently Rashi's opinion in our Sugya as well. (See also Rashi end of Yevamos 103b.)