A mitzva that comes to be fulfilled by means of a transgression TB sukkah 30

Today’s daf is dedicated to the memory of my best friend in college Avi West who just died the other day because he contracted the Delta variant and had underlying issues so that he could not overcome the virus. Avi was completely inoculated, but somebody passed the disease to him and he died tragically way too young. I encourage you to get vaccinated. It is not a political issue; it’s a health issue. The life you may save is your own or somebody else’s best friend. I am heartbroken over Avi’s death.

At the very bottom of yesterday’s daf TB Sukkah 29b we began the third chapter of our massekhet. The holiday of Sukkot has basically only two mitzvot to fulfill. The first is to dwell in a sukkah. The first two chapters of our massekhet dealt with issues surrounding the building of a sukkah and who is obligated to dwell therein. From the third chapter on we shall be learning all about the four species, the lulav (the palm branch), the hadas (myrtle branches), the aravot (the willow branches), and the etrog (citron). The waving of the four species aka lulav and etrog is a mitzvah from the Torah (דאורייתא) only on the first day. For the rest of the holiday the waving of the lulav and etrog is a mitzvah enacted by the rabbis (דרבנן). The Gemara learns this from a verse in Leviticus. “as it is written: “And you shall take for yourselves on the first day” (Leviticus 23:40), indicating that the four species must be taken from your own property.” (Sefaria.org translation) Notice that the verse always specifies the first day.

The Mishnah teaches that one may not use a stolen lulav to fulfill the mitzvah of the four species. The Gemara asks if the mitzvah of lulav and etrog is only for the first day, why couldn’t somebody use a stolen lulav since the mitzvah is only enacted by the rabbis?! The answer is a mitzva that comes to be fulfilled by means of a transgression renders the mitzva unfulfilled (מִצְוָה הַבָּאָה בַּעֲבֵירָה).

“Rabbi Yoḥanan said in the name of Rabbi Shimon ben Yoḥai: It is unfit because it is a mitzva that comes to be fulfilled by means of a transgression, which renders the mitzva unfulfilled, as it is stated: “And you have brought that which was stolen and the lame, and the sick; that is how you bring the offering; should I accept this of your hand? says the Lord” (Malachi 1:13). Based on the juxtaposition in the verse, it is derived that the legal status of a stolen animal is equivalent to that of a lame animal. Just as a lame animal, because it is blemished, has no remedy and is unfit for use, so too, a stolen animal has no remedy. There is no difference before the owners reach a state of despair of recovering the stolen animal, and there is no difference after despair. In both cases there is no remedy.

“The Gemara elaborates: Granted, before the despair of the owner, the robber may not sacrifice the animal because the animal does not belong to him. The Merciful One says: “When a person sacrifices from yours an offering” (Leviticus 1:2). The term “from yours” indicates that the animal must belong to the one sacrificing it, and this stolen animal is not his. However, after the despair of the owner, didn’t the robber acquire the animal with the despair? Once the owner despairs, the animal belongs to the robber, despite the fact that he incurs a debt that he must repay the owner. Since the animal is legally his, why is it prohibited for the robber to sacrifice it as an offering? Rather, is it not because the offering is a mitzva that comes by means of a transgression? Since the animal came into his possession by means of a transgression, it is unfit for use in fulfilling a mitzva.

“And Rabbi Yoḥanan said in the name of Rabbi Shimon ben Yoḥai: What is the meaning of that which is written: “For I the Lord love justice, I hate robbery in a burnt-offering” (Isaiah 61:8)? The Gemara cites a parable of a flesh-and-blood king who was passing by a customs house. He said to his servants: Pay the levy to the taxmen. They said to him: Doesn’t all the tax in its entirety belong to you? If the taxes will ultimately reach the royal treasury, what is the point of paying the levy? He said to them: From my conduct, all travelers will learn and will not evade payment of the tax. So too, the Holy One, Blessed be He, said: “I the Lord... hate robbery in a burnt-offering.” Although the whole world is His and the acquisitions of man have no impact upon Him, God says: From My conduct, My children will learn and distance themselves from robbery, even from robbery unrelated to the needs of offerings.” (Sefaria.org translation)

There are two interesting observations about the concept “mitzva that comes to be fulfilled by means of a transgression (מִצְוָה הַבָּאָה בַּעֲבֵירָה)” The tosefot ד"ה משום on our daf hold that a mitzvah that comes be fulfilled by means of a transgression is a Torah ordinance (דאורייתא). They quote the Gemara in TB Baba Kama 94 as proof. There we learned that if somebody steals wheat and makes halah from it and then says a blessing before eating it, that blessing is a disgusting one. The tosefot back on TB Sukkah 9a (ד"ה ההוא) discussing a stolen sukkah says that a mitzvah that comes to be filled by means of a transgression is a rabbinic ordinance. They point out that all the proof texts don’t come from the Torah but rather only from the prophets. Thus making it a rabbinic ordinance.

Secondly this concept of a mitzvah that comes to be fulfilled by means of transgression is found only in a couple places in the entire Talmud. The major discussion of this concept is found on our daf! This concept is limited in scope to only stealing. Once again tosefot ד"ה משום explains why. When the only way to observe the mitzvah is facilitated by the transgression we apply this concept. When we steal a lulav to fulfill the mitzvah of lulav and etrog, we have accomplished nothing besides committing a crime. Nowhere does our tradition condone stealing.