The Israel Koschitzky Virtual Beit Midrash

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by Rav David Silverberg

The third chapter of Masekhet Sukka discusses the various disqualifying features of the arba minim (four species). Each of the four species has its own specific requirements and demands, but the mishnayot in this chapter also mention the common disqualification of "gazul" - a stolen lulav, etrog, hadas or arava. Indeed, this chapter is called, "Lulav ha-gazul" because the first mishna begins with the halakha of the stolen lulav. This disqualification of "gazul" in then mentioned in the subsequent mishnayot in the chapter, with respect to each of the other three species. Commenting on the first mishna, the Gemara (30a) explains the "gazul" disqualification as based on the concept of "mitzva ha-ba'a ba-aveira," literally, "a mitzva that comes about through a transgression." Ignoring for the time being the volumes of literature surrounding the precise definition of this principle, it basically means that one cannot fulfill a mitzva if a violation was committed in the process of its performance.

If, indeed, mitzva ha-ba'a ba-aveira forms the basis of the gazul provision, then a basic question arises as to why the mishnayot needed to repeat this disqualification in the context of each of the four species. Once the first mishna established the application of mitzva ha-ba'a ba-aveira to lulav, why must the subsequent mishnayot affirm its application to the other three minim?

The Rosh Yeshiva, HaRav Aharon Lichtenstein shlit"a, suggested the following explanation. The Ramban on Masekhet Pesachim (35a) places a significant restriction on the provision of mitzva ha-ba'a ba-aveira. He claims that it applies "only with regard to korban and to lulav, because we use it for praise." Generally, past involvement in wrongdoing does not disqualify a given object for use in the performance of a mitzva. Only when it comes to certain mitzvot, which afford a certain sublime status to the object involved, does mitzva ha-ba'a ba-aveira become a factor. The Ramban claims that lulav is an instrument of praise, a means by which we exalt the Almighty, and hence it is a candidate for the mitzva ha-ba'a ba-aveira disqualification.

We can point to several features of the mitzva of lulav to support this contention of the Ramban, that the lulav serves primarily as an instrument of praise. Most obviously, we perform the "na'anuim" - the waving of the lulav - during the hallel service, when we sing praise to God. Additionally, the Yerushalmi bases the disqualification of a dried out lulav on the verse, "The dead will not exalt the Lord"; only a healthy, living plant can be used in the praise of God, and so a "dead" lulav is not suitable. The underlying assumption, of course, is that the lulav is used to praise God.

At first glance, this status of an instrument of praise is granted only to the lulav, not to the other species. The Gemara (Sukka 32b) posits that a lulav must be three handbreadths long plus the amount necessary to perform the na'anuim with that lulav. Only with regard to the lulav do the na'anuim play a role in determining the minimum required length, perhaps suggesting that it alone serves as a means of praise. Therefore, one could have easily concluded - erroneously - that the mitzva ha-ba'a ba-aveira provision applies only to lulav, and not to the other three species. The mishnayot must therefore inform us otherwise, that having once been the object of theft disqualifies any of the four species. The reason for this perhaps involves a comment of the Rid, cited by the Rosh in Masekhet Sukka (10), referring to the hadasim as "badei ha-lulav" - accessories to the lulav. Accordingly, the hadasim, and perhaps the etrog and aravot, as well, play a subsidiary but critical role in the na'anuim ceremony, as accompaniments to the lulav. Therefore, they, too, serve in the praising of God, and hence the disqualification of mitzva ha-ba'a ba-aveira applies to them, as well.

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Yesterday we addressed the case of a stolen lulav (or any other of the arba minim), which the mishna in the third chapter of Masekhet Sukka explicitly disqualifies for use for the mitzva of arba minim. As we saw, this disqualification is based on the concept of "mitzva ha-ba'a ba-aveira" - that one does not fulfill a mitzva if its performance entailed the violation of a transgression. The Gemara (Sukka 30a) cites the position of Shemuel restricting this disqualification of "gazul" (stolen) to the first day of Sukkot, when a Torah obligation of arba minim applies. Throughout the rest of Sukkot, when - everywhere except the Beit ha-Mikdash - the requirement originates from Chazal, one fulfills his obligation even with a stolen lulav. This is the ruling of the Mechaber (Shulchan Arukh O.C. 649:5), though the Rema cites an opposing view, that one does not fulfill his obligation on any day of Sukkot with a stolen lulav. What logic underlies Shemuel's halakha? Why shouldn't the concept of mitzva ha-ba'a ba-aveira apply to rabbinically ordained obligations, just as it does to Torah obligations?

The Noda bi-Yehuda (Mahadura Tanina, O.C. 134) explains that generally speaking, mitzva ha-ba'a ba-aveira does apply to all mitzvot - regardless of whether they originate from the Torah or from Chazal. Here, however, a stolen lulav is valid for use because of a different consideration, as we can detect upon closer examination of Shemuel's halakha. Shemuel phrased his leniency as follows: "[On the subsequent days of Sukkot], just as one fulfills his obligation with a borrowed [lulav], so does he fulfill his obligation with a stolen [lulav]." The implication is that the viability of a borrowed lulav for use on the subsequent days of Sukkot is more obvious than that of a stolen lulav. Moreover, a stolen lulav is valid only because a borrowed lulav is valid. What does this mean? The Noda bi-Yehuda explains that according to Shemuel, the disqualification of mitzva ha-ba'a ba-aveira applies only if the transgression involved was somehow indispensable to the performance of the mitzva. On the first day of Sukkot, when the Torah obligation applies, one must own the arba minim he uses for the mitzva; one cannot fulfill his obligation with a borrowed lulav. Therefore, if one steals a lulav, the theft played an indispensable role in the performance of the mitzva, thus rendering the performance invalid. On the subsequent days, however, when no Torah obligation applies, one need not own the lulav; one can fulfill his obligation even with a borrowed lulav. Therefore, Shemuel argues, one has no need to steal a lulav to fulfill the obligation - he could take his friend's lulav to borrow, without any intention of keeping it. Therefore, the theft is not indispensable to the mitzva performance. Consequently, even if one should steal the lulav, he fulfills his obligation (though he obviously violates the serious prohibition against theft).

One question, however, remains, and that is the issue of "sho'el she-lo mi-da'at." According to halakha, borrowing an object without permission, even without the intention of keeping it, is akin to theft and is forbidden. Therefore, even borrowing a lulav without the owner's knowledge should constitute theft and thus invalidate the mitzva performance on the grounds of mitzva ha-ba'a ba-aveira. The answer, however, is clear. The Rema (in the aforementioned passage) explicitly rules that one may borrow his friend's arba minim without obtaining permission, because of the principle, "neicha lei le-inish she-ya'asu mitzva be-mammono" - we may assume that people will agree to have a mitzva performed with their property. As we can presume permission on the owner's part, one may borrow the arba minim of another without asking, and this does not involve the general prohibition of "sho'el she-lo mi-da'at."

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Over the last two days we have discussed the disqualification of "gazul" ait pertains to the arba minim. A lulav, etrog, hadas or arava that was stolen may not be used for the mitzva of arba minim because of the concept of "mitzva ha-ba'a ba-aveira," which invalidates a mitzva act which involved transgressing a violation. Today, we will see how this provision of mitzva ha-ba'a ba-aveira might apply to the mitzva of sukka. In the first chapter of Masekhet Sukka (9a), the Gemara disqualifies a stolen sukka for mitzva use based on the requirement of "ta'aseh lekha" (Devarim 16:13) - that one must own or have rights to the sukka he uses for the mitzva. Tosefot there question the need to extrapolate this provision from a verse. After all, the halakha of mitzva ha-ba'a ba-aveira is well established and should, seemingly, apply to the mitzva of sukka. Tosefot apparently did not subscribe to the position of the Ramban we encountered yesterday, which limits mitzva ha-ba'a ba-aveira to very specific instances - sacrifices and arba minim. This view would clearly negate Tosefot's question altogether. Tosefot suggest a different answer, by introducing a somewhat revolutionary theory: mitzva ha-ba'a ba-aveira does not disqualify objects for mitzva use according to Torah law. This disqualification is mi-derabbanan - ordained by Chazal, and does originate from the Torah. The verse cited by the Gemara invalidates a stolen sukka on the level of Torah law; were we to base the disqualification solely on mitzva ha-ba'a ba-aveira, the stolen sukka would be perfectly valid on the level of Torah law, and disqualified only by force of rabbinic enactment.

Throughout the centuries, many other suggestions have been offered to resolve Tosefot's question. One answer is cited from the famous Chassidic master, the "Yehudi ha-Kadosh." His answer draws a distinction between the mitzva act and the sukka itself. Mitzva ha-ba'a ba-aveira, he claims, can render the act of eating in the sukka invalid as a mitzva act; since a transgression was involved in this mitzva performance, the performance does not fulfill the obligation. The sukka itself, however, does not attain the status of a "sukka pesula" - an invalid sukka. Only the Torah's injunction of "ta'aseh lekha," which establishes an inherent condition that one must have legal rights to the sukka he uses, can transform a stolen sukka into an invalid sukka. A practical ramification would arise in a situation where one uses some stolen bamboo poles among his own bamboo poles for the sukka's sekhakh. Generally, a sukka is not disqualified by the presence of a minority of "sekhakh pasul" - materials invalid for use as sekhakh - so long as it is indeed a minority of the sekhakh, and that nowhere does the invalid sekhakh stretch contiguously over four tefachim (handbreadths). Consider a case of a sukka which in one location has two tefachim of sekhakh pasul - a piece of metal, for example - followed immediately by two tefachim of stolen sekhakh. If not for the imperative of "ta'aseh lekha," the stolen sekhakh would not attain the formal status of "sekhakh pasul," and we would thus not have four tefachim of continuous sekhakh pasul. The sukka would therefore be valid for use. Once, however, the Torah specifically invalidates stolen materials for use as a sukka, the two tefachim of stolen sekhakh indeed constitutes sekhakh pasul, thus disqualifying the entire sukka.

In a somewhat famous passage, the Minchat Chinukh (325) answers with a different distinction, between the mitzva to eat in the sukka and the prohibition against eating outside the sukka. If mitzva ha-ba'a ba-aveira were the only problem involved in a stolen sukka, then although it would prevent one from performing a mitzva by eating in this sukka, it would not render him in violation of the prohibition against eating outside a sukka. After all, the Minchat Chinukh claims, the stolen sukka would still retain its status as a sukka. The mitzva act is invalidated, but no prohibition has been violated. Once, however, the Torah specifically disqualifies a stolen sukka, such a sukka is halakhically useless as far as the mitzva of sukka is concerned. (In this sense, the Minchat Chinukh's approach resembles that of the "Yehudi.") Therefore, one who eats in such a sukka is equivalent to one who eats in his house or outside, and has violated the prohibition against eating outside a sukka.

We should note that Rav Soloveitchik zt"l cited his grandfather, Reb Chaim, as rejecting the basic assumption upon which the Minchat Chinukh's theory is based. Reb Chaim claimed that no prohibition against eating outside the sukka ever exists. One who does so has failed to fulfill the obligation of sukka, but is not considered to have violated any prohibition.

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As we know, when we sit down to eat a meal in the sukka we recite the berakha, "lei-shev ba-sukka." Like many other mitzvot, sukka requires the recitation of a berakha before its performance. Unlike other mitzvot, however, the mitzva of sukka presents a certain problem with respect to a berakha recitation. Generally, we recite a berakha over a mitzva before the specific act the mitzva requires: before hammering the mezuza into the doorpost, before tying the tefillin around one's arm, before eating matza, before lighting Shabbat or Chanukah candles, etc. The mitzva of sukka, however, involves a general - rather than specific - obligation, to establish one's residence in his sukka. The Torah requires not one specific act, but rather a general relocation into the sukka. When, therefore, should we recite the berakha?

Common practice follows the position of Rabbenu Tam (cited by the Rosh, Sukka 4:3) who requires the recitation of a berakha only before eating a meal in the sukka. He explains: "For the primary permanence [of residence] that one establishes [in the sukka] involves eating, whereas the other activities - spending time or sleeping - that one does in the sukka are subordinate to eating." Since eating constitutes the primary activity that defines one's residence in the sukka, we recite the berakha only before eating.

Nevertheless, there is considerable discussion in halakhic literature as to whether this principle is absolute. The Mishna Berura (639:20) cites from various Acharonim two instances where one would recite the berakha over the sukka even without eating. The first situation involves someone who, for whatever reason, does not plan on eating on a given day during sukkot (leaving aside the issue of whether this is permissible). According to many authorities, when such a person enters the sukka he recites the berakha. Since he will not eat that day, his very being in the sukka is the only "act" to which we can append a berakha. The second situation concerns a person who has been away from the sukka and now returns without planning to eat before he must leave again. For example, a person goes away from a few hours and then returns to his sukka at 2:00 PM. He plans on leaving the sukka to go to mincha at 5:30 and then return to the sukka for supper. The Chayei Adam claims that since at 2:00 PM the individual makes a new entry into the sukka without any intention to eat before leaving again, he must recite a berakha. According to the Chayei Adam, this situation is akin to the first case, of one who refrains from eating an entire day. (This would apply as well to someone who visits his friend in his sukka and spends time there without eating.)

The Shulchan Arukh ha-Rav (the first Lubavitcher Rebbe) agrees on the first point while disputing the Chayei Adam's extension. In principle, he accepts the position that if one does not eat he must recite a berakha over his very being in the sukka. However, the Shulchan Arukh ha-Rav maintains that the first berakha recited in the morning covers that entire day's "living" in the sukka (except, of course, when one eats a meal, as eating requires a berakha in its own right). Therefore, if someone spends a few hours during the day in the sukka without eating, he need not recite the berakha, since he already recited the berakha when he ate that morning.

The Ma'amar Mordekhai, however, rejects the entireconcept of reciting a berakha over spending time in the sukka. In his view, the position of Rabbenu Tam, which has been accepted as normative halakha, limits the recitation of "lei-shev ba-sukka" to meals, without exception.

Recent halakhic authorities are in disagreement as to the final ruling. The Mishna Berura, the Chazon Ish and Rav Shlomo Zalman Auerbach accepted the position of the Chayei Adam, requiring one to recite the berakha if he spends time in the sukka without eating. This would mean that one who goes into the sukka to sleep at night and the next morning will leave before eating must recite a berakha when he enters the sukka to sleep. (We should note, however, that even according to this view, one recites the berakha only when entering the sukka after having been outside the sukka for a significant amount of time. Thus, if one eats supper in the sukka and stays there to sleep, and even if he must go back into the house for a few moments here or there, he would clearly not recite a new berakha, since the berakha recited over supper is still in effect, until he leaves the sukka for a significant period of time.) The Arukh ha-Shulchan, by contrast, accepts the position of the Ma'amar Mordekhai, that only when eating a meal does one recite the berakha of "lei-shev ba-sukka."

(Taken from "Piskei Teshuvot," 639:20)

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Yesterday we discussed the issue of the berakha recited over the mitzva of sukka. We saw that common practice generally follows the view of Rabbenu Tam, who maintains that one recites the berakha only when he eats in the sukka, and not when he performs other activities in the sukka. Today we will address a different question: at which point specifically does one recite the berakha? In light of Rabbenu Tam's view, we would expect that one should recite the berakha immediately before eating. Since the recitation was instituted, as we saw, only over eating, because eating constitutes the primary expression of one's "relocation" in his sukka, the recitation should immediately precede one's eating. Indeed, this is the ruling of the Rosh, as cited by the Rema (643:2). The Rambam, however (in Hilkhot Sukka 6:12), as cited by the Shulchan Arukh (ibid.), rules that one must recite the berakha before sitting in the sukka. The Rambam's view differs from that of the Rosh on two counts. The Beit Yoseif understood the Rambam to mean that the text of the berakha, "lei-shev ba-sukka," means quite literally, "to sit in the sukka." Since we always recite berakhot over mitzvot before the actual execution of the mitzva act, we must recite this berakha - which refers to sitting in the sukka - specifically before taking our seats in the sukka.

The Rosh strongly rejects this position of the Rambam. Of what unique significance is sitting in the sukka, as opposed to standing? When the Torah requires "ba-sukkot TEISHVU shiv'at yamim," this does not refer to sitting; rather, "teishvu" here means "dwell" or "reside." The same, therefore, must apply to the text of the berakha: "lei-shev" does not refer to the act of sitting, but rather to general residence that the Torah requires one to establish in the sukka. Therefore, if the Rambam felt - unlike the Rosh - that the berakha should be recited even before eating, when one enters the sukka, why not recite the berakha immediately before his entry? Why does the Rambam require the berakha's recitation specifically before one sits down?

The Taz comes to the Rambam's defense and explains the Rambam's position much differently than did the Beit Yoseif. The Rambam clearly did not interpret the verse or the berakha as referring specifically to the act of sitting. Undoubtedly, "teishvu" and "lei-shev" mean dwelling or residing. However, in the Rambam's view, one expresses a sense of permanence only when he sits down. If one walks into a room and remains standing, his entry is viewed as temporary and but a visitation. Only when one takes his seat can he be said to have established his presence in the room, or, in this case, the sukka. One therefore finalizes the mitzva act of "yeshivat sukka" when he sits down in the sukka, and for this reason the Rambam required that the berakha be recited before sitting down. The Rambam disagreed with the Rosh, and maintained that one recites the berakha not over eating specifically but over one's entry into the sukka. However, the "entry" must be one of permanence, and this is expressed specifically through sitting.

(Rav Soloveitchik offered a different interpretation of the Rambam's ruling, as quoted by Rav Herschel Shachtar in his "Eretz ha-Tzvi," p. 14.)

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A common problem concerning the mitzva of etrog, which has existed for many years, is that of "murkav" - grafted fruits marketed under the guise of etrogim. An "etrog" that results from grafting an etrog tree with another fruit tree - most commonly, a lemon tree - is not considered an etrog and may therefore not be used for the mitzva. The problem, of course, is distinguishing an authentic etrog from a grafted one. The Magen Avraham (648:23; cited by the Mishna Berura 648:65) provides three "simanim," or methods by which one make this distinction. First, a grafted etrog is smooth, whereas an authentic one, as we know, has protrusions or bumps on its surface. Secondly, the "oketz," or bottom stem of the etrog (not to be confused with the "pitem," which is located at the top of the etrog), is depressed somewhat into the fruit in a real etrog, while in grafted etrogim the oketz protrudes completely. Finally, the authentic etrog features thick skin and a dry interior, as opposed to thin skin and moist interior of grafted etrogim.

The Acharonim expressed considerable skepticism as to the reliability of these simanim. As the Mishna Berura quotes, already the Chatam Sofer (early 19^th century) recommended that one not rely on these characteristics. More recently, some authorities have noted that modern technology has led to far more sophisticated grafting methods which allow "counterfeiters" to produce etrogim with virtually all the physical characteristics of an authentic etrog. Interestingly, Rav Shlomo Zalman Auerbach zt"l is cited as ruling that we should not consider an etrog inauthentic based solely on laboratory tests that discovered in it scientific features of a lemon. Bees often transfer pollen from lemon trees to etrog trees, which does not disqualify the etrogim but will result in laboratory findings of lemon-like qualities in those etrogim.

Earlier this week we discussed the Midrashic symbolism of the arba minim, by which the etrog represents the tzadik. Rabbi Barukh Moshe Faivelsohn (New York, mid-20^th century), towards the end of his "Birkot Moshe," goes through the three defining characteristics of the etrog, as delineated by the Magen Avraham, and demonstrates how they symbolically represent qualities of the tzadik. We bring here his explanation as to the symbolic meaning of the first characteristic, that an authentic etrog has bumps on its surface. Rabbi Faivelsohn suggests that this quality represents the hardship and grueling process often entailed by a life of piety. Others can live a "smooth" life, a life free of "bumps" - without obstacles, restrictions or struggles. One who truly strives for righteousness, however, necessarily encounters "bumps" in the road; his journey is rarely smooth, and never can he go about carefree.

On Sukkot, when we celebrate the commitments we made over the course of the Yamim Nora'im, we must remind ourselves of the rough surface that characterizes the etrog, and understand that the road ahead of us is not necessarily free of bumps.

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Parashat Ve-zot Ha-berakha, the final parasha in the Torah, which we read on Simchat Torah, features the famous verse, "Torah tziva lanu Moshe morasha kehilat Yaakov" - "Moshe charged us with the Torah as the heritage of the congregation of Yaakov" (33:4). Rashi comments on this verse: "The Torah that Moshe charged us is the heritage of congregation of Yaakov; we will grab hold of it and never abandon it." According to Rashi, this declaration expresses Benei Yisrael'spledge to always retain their grip on the Torah that Moshe taught us, and to never let go. Rav Moshe Feinstein zt"l added that Rashi viewed this verse as continuing the theme of the previous one. In his commentary to that preceding verse, Rashi offered two explanations, the second of which interprets the verse as describing Benei Yisrael's loyalty to God even during times of hardship and oppression. Our verse, then, simply continues the same idea: Am Yisrael grips the Torah tightly even when its faith is challenged and its very existence is in jeopardy. Our people have refused to loosen our grip on the Torah, even under the most difficult and hostile circumstances.

However, Rav Moshe asks, if, indeed, this verse describes Benei Yisrael's firm devotion to the Torah even during trying times, why does it focus on Moshe as having charged us with the Torah? The verse could just as easily have written, "This Torah is the heritage of the congregation of Yaakov," which would convey the same idea. What is added by the reference to Moshe as the one who commanded us the Torah from God?

Rav Moshe explains that the verse speaks specifically of the Torah she-be-al peh, the Oral Law that Moshe Rabbenu delivered to us. That the text of the Written Law has been preserved despite centuries of persecution is no great feat; a book can be copied, printed, distributed, and thereby perpetuated. Benei Yisrael's remarkable achievement of the last twenty centuries involves their preservation and development of the Oral Law, the intricate details of halakha to which we remain committed to this very day. This is also the most critical accomplishment: without the Oral Law, the Torah, and with it the Jewish people, would have vanished. The written Torah cannot exist in a vacuum; as we know from many attempts in history to deny tradition and accept only the Written Law, once every individual can suggest his own interpretation, the integrity of the religion is undermined. Benei Yisrael survive by "grabbing onto" the totality of their heritage, by applying themselves tirelessly to understand, explain and apply the halakhic details of our tradition.

We have "grabbed on" to not only the Torah, but the Torah that Moshe charged us - the laws, obligations and prohibitions that he taught us verbally and have been transmitted ever since, from one generation to the next.

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