The third perek of Sukkah deals with a topic which we are more familiar with – the four species. The Mishnah lists a number of problems that invalidate a lulav; one of these being if it was stolen. The Gemara (Sukkah 30a) explains the invalidation of a stolen lulav due to it being a ‘mitzvah haba’ah be’aveyra’- the ability to fulfil the mitzvah became possible only through the transgression of stealing. Or alternatively, the point of the transgression was the moment of fulfilling the mitzvah. The source of this problem is the verse from Yeshayah (31:72), “I [Hashem] hate stolen offerings”. Consequently the Gemara notes further, that there is no halachic difference if the person from whom the lulav was stolen has given up ownership or not.
However, Rashi (Sukkah 29b) in his commentary on the Mishnah explains that the problem with a stolen lulav is because the Torah writes that “they should take for themselves” (Vayikra 23) implying that by taking what belongs to someone else, one does not fulfil this mitzvah. According to this understanding of Rashi, there is no halachic difference between a stolen or borrowed lulav for the fulfilment of the mitzvah on the first day of Yom Tov (There is a debate if the psul is only for the first day or all days of Yom Tov.)
The Tosfot explain that ‘mitzvah haba’ah be’aveyra’ only applies in those cases where the aveyra facilitates the performance of the mitzvah, but does not apply to cases where the aveyra is not part of the process of fulfilling the mitzvah. For example, if one had a lulav that had been worshipped as a god, the inability of using such a lulav is not because mitzvah haba’ah be’aveyra, but for another reason (see Sukkah 30a, Tosfot s.v. ‘Meshum’). Tosfot are so convinced by their explanation that they claim that the text quoted later in the Gemara that a lulav from a tree that has been worship for idolatry is prohibited because of mitzvah haba’ah be’aveyra is incorrect.
There is another case of where one stole an object for the fulfilment of a mitzvah, however the law is different. The case is where one stole a shofar and used it on Rosh Hashanah. The Halacha in such a case is that the person has fulfilled their obligated of hearing the shofar. The question that arises is why is there no problem of mitzvah haba’ah be’aveyra? The answer that is offered is that the nature of the obligation of shofar is different to that of lulav. The Torah obligates the Jewish people to hear the sound of the Shofar on Rosh Hashanah. The mitzvah is fulfilled through the shofar and not with using the shofar. However with lulav the Torah obligated the taking of the lulav and therefore the stolen lulav cannot be used.
The third case of mitzvah haba’ah be’aveyra is the story that the Gemara brings both in Brachot and Gittin. Rabbi Eliezer freed his servant in order to complete the minyan in Shul. Freeing a slave is a negative prohibition of ‘they shall always work for you’. The answer that the Gemara gives is that a mitzvah for the public is different and therefore the aveyra can be overlooked. However, according to the Tosfot that was mentioned above one can offer another answer, that the freeing of the slave allowed them to then complete the mitzvah, not that the aveyra and the mitzvah happened at the same time. Since freeing the slave now allowed the quorum to form which later would allow certain parts of tefillah to be recited.
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