"Avankari"

  • Rav Shmuel Shimoni
The Israel Koschitzky Virtual Beit Midrash

Gemara Sukka
Yeshivat Har Etzion


SHIUR #14: "AVANKARI"

Rav Shmuel Shimoni

 

 

            The passage dealing with "avankari" (traders, who dealt, among other things, also with hadasim) (Sukka 30a-b) relates to several fundamental principles in the realm of the laws of theft and robbery, the discussion of which belongs in the final chapters of tractate Bava Kama – yi'ush (despair), shinui ma'ase (change [in substance] resulting from an act), shinui shem (change in name), and shinui reshut (change in domain) - and also to laws governing landed property and mitzva ha-ba'a be-aveira, which we already discussed in previous shiurim. The nature of the material does not allow us to treat all aspects of these issues in the framework of a weekly shiur on tractate Sukka, but we shall try to relate to some of them. To further that end, we must first understand the basic laws governing the thief's acquisition of the stolen property and the obligation falling upon him to restore the stolen property to its rightful owner.

 

TWO UNDERSTANDINGS REGARDING THEFT AND THE OBLIGATION TO RESTORE THE STOLEN PROPERTY

 

            As we know, the Torah commands the thief: "He shall restore that which he stole" (Vayikra 5:23). On the face of it, the fact that the thief does not acquire the stolen property is not a consequence of this mitzva, but rather it follows from the simple fact that there is no da'at makne – agreement on the part of the original owner to transfer title – and therefore there is no reason that the thief should acquire the property. It is no wonder then that according to the Rambam,[1] restoration of the stolen property does not constitute a positive precept, but nevertheless the thief does not acquire the stolen property, there being no foundation for acquisition.

 

            Surprisingly, however, there exists also another view, according to which the theft itself should transfer ownership of the stolen article to the thief, and it is only the Torah's intervention, by way of its imposition of an obligation to restore the stolen property to its original owner, that prevents the transfer of such ownership. One of the clearest expressions of this position is the view of Rav recorded in Sanhedrin 72a. The Gemara there discusses the law governing a burglar who breaks into a house at night, who may be killed on the spot, and thus his thievery is governed by the rule of "kim lei bideraba minei," which prevents the imposition of certain legal liabilities, because liability to monetary restitution is cancelled in the face of the greater liability to death. In this context, Rav proposes the exceedingly novel position that even if the stolen article is still intact in the thief's hands, he is under no obligation to restore it to its original owner:

 

Rav said: If one broke into a house, and stole utensils and departed, he is exempt [from making restitution] — Why? Because he acquired them with his blood. Rava said: It stands to reason that Rav's dictum only applies where he broke the utensils, so that they are not in existence; but not if he merely took them [and they are still intact]. But in truth, Rav's dictum applies even if he merely took them. For [even] where there is 'blood-guiltiness for him,' if the utensils are damaged, he is liable. This proves that they stand in his [the thief's] possession. [Rashi: This implies that we do not say that they are regarded like a bailment, and the loss is borne by the owner. Rather we say that they are in his possession, and the loss is his.] So here too, they are in the thief's possession. [Rashi: Even though they are intact we say that they are not a bailment, but rather they stand in his possession and under his responsibility. And would the court collect them from him, there would be payment together with capital liability, as if they would collect from his other assets.]

 

            Now, the law of "kim lei" does not confer title; all it can do is exempt the criminal from certain liabilities. According to Rav, however, it allows the thief to acquire the stolen article, because what ordinarily prevents the thief from acquiring title is the obligation that falls upon him to restore the stolen property to its original owner. But when the law of "kim lei" applies, so that the thief is exempt from making restitution, the article is acquired by him. Rav proves this from the obligation falling upon the thief in the case of ones (injury to the stolen property). This obligation proves that we are not dealing with the thief's responsibility for the stolen property, but rather that theoretically the thief acquires the property, only he is obligated to restore it (and this obligation prevents the actual conferring of title). Thus, the removal of this obligation to restore the stolen property suffices to allow the thief to acquire it.

 

            What about the requirement of da'at makne – the owner's agreement to transfer title? It is possible that the physical act of taking control of the article creates ownership that is recognized by the Torah. This understanding, however, is quite difficult, and below we shall propose an alternative.

 

            The law does not follow the position of Rav, but rather that of Rava who disagrees. Rava's words imply that he rejects Rav's position on the fundamental level, and that he maintains that the theft itself does not confer title upon the thief, but merely imposes an obligation of restoration and liability in the case of ones:

 

But it is not so. The Torah placed it in the thief's domain only in respect of injury; but as to ownership, it remains the property of the first owner, just as in the case of a borrower.

 

            Many, however, have understood that the idea that the theft itself confers title is not rejected, and that Rava's formulation is merely a way of setting aside the position of Rav. What then is Rava's rationale? The Ba'al Ha-Ma'or in Sanhedrin understands that fundamentally Rava agrees with Rav, but the Sages enacted that if the stolen article is still intact, the thief is obligated in its restoration.

 

            The author of Netivot Ha-Mishpat (351, no. 1) goes in a different direction. Rava might agree that the theft itself involves potential acquisition, but this is not because the thief draws the article into his possession (meshikha), but because this is the way that the Torah obligates him to restore the stolen property and to make restitution in the case of ones. In general, Halakha follows the rule that "the Torah exempts a person in the case of ones." But the conferring of title upon the thief together with the imposition of an obligation to restore the article to its original owner, leads to the result that if the article is damaged, it is the thief's loss, for it is his article that was damaged, and this does not exempt him from his obligation of restoration/payment. All this is true, however, in the ordinary case of theft, but when the theft is accompanied by the law of "kim lei," the Torah does not impose an obligation of restoration, and thus it does not put the stolen article into the thief's possession.

 

            To summarize, there are two opinions regarding the thief's status vis-a-vis the stolen article: 1) The theft itself imposes absolute responsibility for the article upon the thief, but there is no foundation by way of which he should acquire it; 2) The theft involves potential acquisition, but the thief is prevented from acquiring title by the obligation imposed upon him to restore the article to its original owner.

 

APPLYING THESE TWO UNDERSTANDINGS TO A CONTROVERSY BETWEEN THE RISHONIM IN OUR PASSAGE

 

            It seems that these two understandings find expression in a controversy between the Rishonim on our passage regarding a lulav or one of the other species that was stolen from a non-Jew. The Gemara in Bava Kama 113b records a dispute whether stealing from a non-Jew is permitted or forbidden. It is possible that even according to those who say that it is forbidden, there is no mitzva to restore the stolen property to the non-Jew. What is the law regarding the four species?

 

            The Ba'al Ha-Ma'or at the beginning of the chapter (14b in Alfasi) proves from the passage regarding "avankari" that the disqualification of mitzva ha-ba'a be-aveira was not accepted as final law, for the Gemara implies that once we resolve the ownership issues, the hadasim acquired through the avankari are fit for the mitzva. The Ramban deals with this argument:

 

One can answer that they steal land belonging to a non-Jew, and not that of a Jew, for that is not common. And [the law regarding avankari] was taught because of [the problem of] "yours," that in order to acquire it there must be yi'ush and a change of domain. But there is no [problem of] mitzva ha-ba'a be-aveira.

 

            In other words, even when there is no mitzva to restore the stolen property – and thus also the rule of mitzva ha-ba'a be-aveira is not applicable – the problem of ownership remains, because the non-Jew retains his title. It clearly follows from here that the theft in and of itself does not confer title (unless we say as we suggested regarding the position of Rava that through the imposition of an obligation of restoration, the stolen property is acquired, and it is only in the case of a non-Jew or when the rule of "kim lei" applies that the theft itself does not confer title).[2]

 

            Rashi disagrees with the Ramban:

 

They should detach it from the ground and give it to you. Why? Unless known otherwise, non-Jews steal land from Jews, and this land may belong to a Jew… And he maintains that yi'ush alone does not transfer ownership, but yi'ush and a change of domain transfers ownership. Or else, [yi'ush alone] transfers ownership, [but] it is a mitzva ha-ba'a be-aveira.

 

            It is clear from Rashi that the problem that must be dealt with is not only that of mitzva ha-ba'a be-aveira, but also the problem of ownership, but nevertheless he focuses all the concern on the possibility that the land was stolen from a Jew.[3] According to him, just as there is no problem of mitzva ha-ba'a be-aveira in property stolen from a non-Jew, so too there is no problem of "ownership." This apparently is based on the argument that the only reason that title over the stolen property is not awarded to the thief is the obligation that the Torah imposed upon him to return the stolen property to its original owner.

 

            Let us now examine some of the concepts mentioned in our passage, after which we shall return to the passage itself.

 

YI'USH

 

            Yi'ush is generally discussed in two contexts – the laws of lost property and the laws of stolen property – but it constitutes a factor that impairs a person's ownership without any connection to these two areas (see, for example, Ramban, Pesahim 4b): According to the Netivot (262, no. 3), it allows another person to acquire the object, and the Ramban implies that even before the other person acquires it, yi'ush cancels the original owner's ownership.

 

            Regarding stolen property, the Gemara in Bava Kama 66b records a disagreement whether yi'ush confers title by Torah law, by rabbinic Law, or not at all. According to the view that yi'ush alone (without anything else) does not confer title, the reason is that the article reached the thief's hands by way of a prohibition, and the obligation to return the stolen property had already been imposed upon him, and it does not become cancelled. That is to say: According to the general laws of Choshen Mishpat, the thief should have acquired the article, and it is only the obligation to restore the object to its original owner that prevents that from happening. We saw earlier that there are those who maintain that the previous sentence aptly describes the situation following the theft, even before yi'ush, and they would be forced to say that yi'ush does not make a difference one way or the other. Alternatively, they might say that indeed yi'ush does change the situation, and that now the thief has really acquired the article, though he is still bound by the mitzva to restore it to its original owner. Even if we do not go that far, it is possible that the level of his ownership rises, and that he can now execute legal transactions, e.g., he can sell the article.

 

CHANGE

 

That a change transfers ownership is indicated in Scripture and taught in the Mishna. It is indicated in Scripture in the words: 'He shall restore that which he stole' (Vayikra 5:23). What is the point of the words 'which he stole'? It is to imply that if it is still as [it was when] he stole it, he must restore it, but if not, it is only its value that he must pay. It was taught [in the Mishna]: If one steals timber and makes utensils out of it, or wool and makes it into garments, he has to pay in accordance with the value at the time of the robbery. (Bava Kama 66a)

 

            Theoretically, we can explain why a change transfers ownership in three different ways:

 

1)         The change serves as a particularly strong act of kinyan, through which the thief can acquire an article even without da'at makne. For this, we require a change that is actively executed by the thief himself, something that we do not require according to the other two understandings.

 

2)         If we understand that the theft itself creates a potential kinyan in the article, that is hindered only by the obligation of restoration, then we can understand that the change merely removes this obligation, for it had related to a specific article, and now that article has changed.[4] Once the obligation to return the object has been cancelled, it is automatically acquired by the thief. Rabbi Elchanan Wasserman (Kovetz Shiurim, Bava Kama, no. 14) understood the kinyan of change in this manner, and argued that this is what follows from the derivation in the Gemara:

 

That which we learned that a change transfers ownership from the verse, "which he stole," is on the face of it difficult. For from the verse we only know that he is no longer obligated to restore the article after it has changed, and also that he cannot say, 'Here is your article." But from where do we know that the thief acquires the article through the change? We must say that the one depends on the other; once the law of restoration is cancelled, the article is acquired by the thief by way of the original theft. Support for this may be brought from the passage in Sanhedrin, for Rav said that one who breaks into a house at night acquires that which he steals with his blood, because of the rule of 'kim lei bideraba minei.' But what kinyan is effected by 'kim lei bideraba minei'? We are forced to say that since the thief is exempt from restoring the stolen property because of 'kim lei,' he acquires it, for were it not for the obligation of restoration, the thief would acquire the stolen property. The fact that we do not follow Rav in this matter is because we maintain that the law of 'kim lei' only applies when a person would be obligated to pay out of his own pocket, but not when he must restore an article that is not his. But as for the principle that in the absence of the obligation to restore the stolen property, the thief acquires that property – all agree about that. In truth it is astonishing – why should theft allow the thief to acquire an article that is not his? In any event, however, this law is proven by the Gemara. Therefore, in the case of a change, since the thief becomes exempt from the obligation to restore the stolen property, he automatically acquires it by way of the original theft… Regarding theft, the kinyan is valid immediately, but the obligation to restore the stolen article to its original owner cancels the thief's kinyan every minute. But once the obligation of restoration is cancelled because of the change, the stolen article automatically becomes his, for already at the time of the theft it became his regarding the time following his release from the obligation of restoration.

 

            It should be noted that several Acharonim (Penei Yehoshua, Bava Metzia 43b, and others) went even further and claimed that change transfers ownership retroactively from the time of the theft, for the factor that had hindered that transfer was removed.

 

1)         The theft itself did not create a potential kinyan in the stolen article, but following the change, the stolen article no longer exists, and in its place there is now a new article. This article is owned by him in whose possession it is now found, and the Torah decided that in the case of theft, the article is found in the possession of the thief, and it is he who acquires the new article. Thus writes the author of the Even Ha-Ezel (Hilkhot Nizkei Mamon 7:12):

 

The theft effects that the [stolen article] is in his possession, and therefore since we have learned from "them – and not from their changed states" (Bava Kama 65b) that something that has been changed is no longer the same thing as before, and therefore when it becomes changed in the possession of the thief, it is acquired by the thief, for it became changed in his possession.

 

            According to the last two understandings, it stands to reason that the law regarding change is based on the fact that the name of the article has changed. According to the first understanding, it is the act of change that is critical, and not the identity and name that have become changed, though there is room to argue that only an action that changes the name of the article is regarded as a serious act of change.

 

CHANGE IN NAME

 

            The talmudic passages distinguish between two different types of change: change in name (shinui shem) and change in substance resulting from an act (shinui maase). We shall open with a change in name, which as the term implies, involves a change in the name of the article – not necessarily as a result of any action performed by the thief. Regarding a change in name, of course, we cannot apply the first explanation, and we are left with choosing between the other two explanations.

 

 

            The Rishonim in Bava Kama disagree whether in addition to a change in name, yi'ush is also necessary. The Tosafot write (66b):

 

Change in name is like a change in substance. Not exactly like a change in substance, for a change in substance by itself transfers ownership… But a change in name only transfers ownership together with yi'ush.

 

            What is the meaning of this combination? The Tosafot may understand that the theft in and of itself cannot effect a kinyan, and it is only after yi'ush that the situation is created in which the thief is able to acquire title of the article, but the obligation to restore the article to its original owner hinders him from doing so. At that point, a change in name suffices to cancel the obligation to restore the stolen property.

 

However, the Tosafot themselves (ibid., 67a, s.v. ha, in the second answer), and so too the Ramban in his Milchamot (41a in Alfasi) propose a second possibility: A change in name by itself does in fact effect a kinyan, but sometimes yi'ush is needed in order to effect the change in name. In the framework of this position, the question arises whether they too understand the law of a change in name as a cancellation of the obligation to restore the stolen property, and nothing more, and that according to them, the theft in and of itself would have effected a kinyan had it not been for the obligation to restore the stolen property; or perhaps they agree that the theft itself does not effect a kinyan (like the position of Ramban in Sukka), but they understand the law of change in name as did the Even Ha-Ezel.

 

CHANGE IN SUBSTANCE

 

            Let us move now to the second concept: change in substance resulting from an act. The Gemara states:

 

Rabbi Ela'a said: If a thief steals a lamb and it grows into a ram, or a calf and it grows into an ox, as the article has undergone a change while in his hands he would acquire title to it… Rabbi Chanina objected to Rabbi Ela'a's statement [from the following teaching]: If he steals a lamb and it grows into a ram, or a calf and it grows into an ox, he must make double payment or four-fold and five-fold payments reckoned on the basis of the value at the time of theft. Now, if you assume that he acquires title to it by the change, why should he pay? Is it not his which he slaughtered, is it not his which he sold?… Rabbi Zera objected: Why should he not indeed acquire title to it through the change in name? Rava said: An ox one day old is already called 'ox,' and a ram one day old is already called 'ram.' (Bava Kama 65b)

 

            According to the simple understanding, Rava's argument that there is no change in name in this case is accepted by Rabbi Ila'a as well, and that his disagreement with Rabbi Chanina does not relate to change in name, but to change in substance. Rabbi Chanina requires, so it would appear, that the change in substance be executed by the thief himself. It is possible that he understands that the law regarding a change in substance is based on the first understanding suggested above, that an act of kinyan is necessary. The law has been decided in accordance with Rabbi Ila'a, and according to this it would appear that a positive action is not required. The Rosh (Bava Kama, chap. 7, no. 2) and the Shulchan Arukh (Choshen Mishpat 353:1) write, however, that the thief acquires the stolen article by virtue of the change in name.

 

            If indeed a change in substance does not require a positive act, it must be based on the fact that what stands before us is a new article. This is easy to understand if we also require a change in name, as, for example, the Tosafot write in Bava Kama (93b, s.v. eitzim):

 

If one steals timber and make utensils, i.e., clubs – only planing like this where clubs are formed is it effective, because it is regarded as a change in substance… but planing without a change in name does not help.

 

From the Tosafot on our passage (s.v. shinui, ve-likniyuha), however, it is clear that a change in name is not a necessary condition, and therefore we must understand that a change in substance in the article defines it as a different article even if its name does not change as a result. In any event, if it is not based on a positive action, we must understand why the Tosafot in Bava Kaman regarded a change in substance as better than a change in name. It seems that we can say that a change in the substance of the article itself invokes – perhaps even without a change in name – the argument that the original article no longer exists. This is not so in the case of a change in name by itself, which merely cancels the obligation of restoration.

 

A CHANGE THAT CAN REVERT TO ITS ORIGINAL STATE

 

            There are three opinions among the Amoraim regarding a change that can revert to its original state:

 

1)         The view of Rabba according to the Tosafot in Bava Kama 65b, s.v. ein: It transfers ownership by Torah law.

2)         The view of Rabbi Yochanan, ibid. 94b: It transfers ownership by rabbinic enactment.

3)         The view of Rabbi Ashi, ibid. 93b, that it does not transfer ownership whatsoever (see Rosh, chap. 9, no. 1).

 

What is the rationale behind the view that it does not transfer ownership whatsoever? It might be argued that in such a case the change is not serious: the action causing the change is not regarded as a meaningful action, fit to transfer ownership; the change in identity is also not a stable change. The Chazon Ish, however, (Likutim on Temura 6a) suggested a different understanding:

 

Now it is changed, and no longer regarded "like that which he stole," but there is room to say that rather than acquire it because we lack "like that which he stole," he should take apart the utensils and return [the stolen property] like that which he stole.

 

            In other words: the change is significant; but the reason that the obligation of restoration is cancelled because of a change is that it can no longer be fulfilled – but in the case of a change that can revert to its original state, that obligation can still be fulfilled.

 

THE PASSAGE OF "AVANKARI"

 

Let him acquire it with a change in substance! He maintains that lulav does not require binding. And if you say that lulav requires binding, it is a change that can revert to its original state, and a change that can revert to its original state is not called a change.

Let him acquire it with a change in name, for at first it was called "assa," and now [it is called] "hoshana"! From the outset an assa is also called "hoshana."

 

            Why does the Gemara apply the rule of a change that can revert to its original state only to a change in substance, and not to a change in name? The Ritva argues that the Gemara is not being precise here:

 

It stands to reason that [the Gemara] states the truth [that from the outset it was also called "hoshana"]. For even if it would not be called "hoshana" from the outset, a change in name of this type does not transfer ownership, because it depends upon a change in substance that can revert to its original state.

 

            The Tosafot (s.v. ve-likneyuha), however, understood otherwise, and their words imply several important principles that should be noted:

 

"Let him acquire it with a change in name!" This is difficult. Surely we said that a change in substance that can revert to its original state is not called a change – and the same applies to a change in name, as it is stated in chapter Merube regarding a beam that a change that can revert to its original state is not called a change. It might be answered that the question here is according to Rav Yosef, who offers there a different answer.

 

            According to this answer, the law regarding a change that can revert to its original state does not apply to a change in name, but only to a change in substance. It stands to reason that a change that can revert to its original state is not regarded as significant, unless it reaches an objective that cannot be undermined: a change in the name of the article, even if only temporary.

 

It also might be suggested that with a change in name that is not accompanied by a change in substance there is no transfer of ownership if it can revert to its original state, as in the case of the beam, for the way it was built into the house, it is not regarded as a change in substance. But here where he bound it, it is regarded as a change in substance together with a change in name, and it transfers ownership even though it can revert to its original state.

 

            Here the Tosafot propose the novel idea that a change in name that can revert to its original state does not effect a kinyan, and also a change in substance that can revert to its original state does not effect a kinyan, but the combination – a change in name and a change in substance that can revert to their original states – does effect a kinyan. How are we to understand this combination? On the basis of what we have seen thus far, we may suggest as follows:

 

            As we shall see below, the Tosafot here maintain that a change in name by itself effects a kinyan, provided that it cannot revert to its original state. It seems that were it not for the obligation of restoration, the theft itself should have conferred title, and the change in name cancels the obligation of restoration. A change in name that reverts to its original state is a valid change, but it still allows for the fulfillment of the obligation of restoration, and therefore it cannot effect a kinyan, as argued by the Chazon Ish.

 

            A change in substance is not based on a change in name, and it appears that it works according to the other track: an act of kinyan of taking control of the article. As such, the deficiency of a change that can revert to its original state does not lie in the fact that it is still possible to fulfill the obligation of restoration – for regarding a change in substance we are dealing with domination over the article that cancels title – but in the fact that the act is not serious. When, however, the change in substance includes also a change in name, we can no longer say that the change is not serious, for surely it caused the name of the article to be changed, and as we have emphasized, that is a valid change. It turns out then that in such a case we cannot rely on the fact that the obligation of restoration can no longer be fulfilled – for surely it can be fulfilled; but when we work according to the alternate track of a change in substance, it suffices that the change in name be significant, which allows us also to define the change in substance as a significant act.

 

            The Tosafot continue:

 

You might say: Regarding the dining cover which does not require trimming, and there is only mental resolve - if so, its change in name can revert to its original state. Why then does it transfer ownership? You can answer: There, there is yi'ush together with the change in name, for where there is no yi'ush, mental resolve does not cause it to become ritually unclean… And a change in name that can revert to its original state is better - in that it can effect a kinyan together with yi'ush, as we find regarding a dining cover - than a change in substance that can revert to its original state, which even together with yi'ush does not effect a kinyan, as the Gemara concludes here.

Now we understand that which is stated there that a change in name is like a change in substance. For how are they alike? Surely a change in substance by itself without yi'ush effects a kinyan, as is proven in several places in chapters Merube and Ha-Gozel Kama, whereas a change in name only effects a kinyan together with yi'ush, as is proven by the case of the dining cover. Rather this is the reason, because the dining cover can revert to its original state, but where it cannot revert to its original state, it effects a kinyan by itself. For regarding the case of one who steals a lamb and it grows into a ram, or a calf and it grows into an ox, the Gemara asks: Let him acquire it with a change in name, and not become obligated in four-fold and five-fold payments. And the Gemara answers: An ox one day old is already called 'ox,' and a ram one day old is already called 'ram.' This implies that were it not for this, he would acquire it with a change in name by itself.

Now there are several laws governing the matter: A change in substance that cannot revert to its original state, and so too a change in name that cannot revert to its original state effect a kinyan by Torah law, even without yi'ush; and a change in substance that can revert to its original state effects a kinyan even without yi'ush by rabbinic law, as is implied at the beginning of chapter Ha-Gozel Kama. And this is a measure instituted for the penitent [to encourage penitence]. And a change in name that can revert to its original state without yi'ush does not effect a kinyan at all, except in the case of a beam as a measure instituted for the penitent.

 

            The Tosafot here present a new position regarding a change in name without yi'ush: a change in name by itself effects a kinyan, but if it can revert to its original state, it can only effect a kinyan together with yi'ush. If we understand as we explained above regarding the view of the Tosafot here, that the theft itself would effect a kinyan were it not for the obligation of restoration, and a change in name that cannot revert to its original state cancels the obligation of restoration, we must ask: What does yi'ush contribute to a change in name that can revert to its original state, that allows it to effect a kinyan?

 

            We suggested earlier according to the view that the theft itself would effect a kinyan were it not for the obligation to restore the stolen property, that even though the obligation of restoration is also the reason that yi'ush alone does not effect a kinyan, yi'ush nevertheless has an effect, namely, that prior to the yi'ush the obligation of restoration prevented the kinyan, and turned the theft itself into a merely potential kinyan¸ but after the yi'ush, the thief really acquires the article, though he is still commanded to return it. Now we can add that there is a difference between the obligation of restoration as a mitzva and the obligation of restoration as a factor that prevents kinyan. As for the prevention of kinyan, the Torah prevents the thief from becoming the owner, as long as it is possible to return the article "like that which he stole," and therefore a change that can revert to its original state does not effect a kinyan. But as for the mitzva to restore the stolen property to its original owner, the mitzva relates from the outset to a specific article, and when that article no longer exists it is cancelled, even though it is still possible to fulfill the mitzva by restoring the article to its original state.

 

 

            Next week we shall examine the dispute between Rabbi Yehuda and the Sages regarding whether lulav requires binding (you should advance to "lechudei kai ka mashma lan," on p. 31b, though the issue of bal tosif will only be dealt with the following week, because it is based on the passage of binding). The heart of the discussion is found on p. 11a: "De-tanyan: Lulav… hitna'e lefanav be-mitzvot."

 

Regarding the position of Rabbi Yehuda, see Tosafot 13a, s.v. mitzvot; Ba'al ha-Ma'or, 7a in Alfasi, s.v. amar; Ra'avad, ad loc. amar; Ritva 11b, "ve-hakha be-lulav tzarikh eged kamiflagi… be-eizov de-para lo ketiv bei aguda." What is the source of the obligation of binding according to Rabbi Yehuda? How does he understand the relationship between the individual species and the four species as a single entity?

 

Regarding the position of the Sages, see the Mishna in Menachot 27a: "Ve-arba she-be-lulav… me'akvin ze et ze," and the Gemara, ad loc., "ve-arba she-be-lulav ve-anveihu." Define the status of the individual species according to the following Rishonim: 1-2) Tosafot, Sukka 34b, s.v. she-tehe; Rambam, Hilkhot Lulav 7:5-6; 3) Ran, 17a in Alfasi, s.v. ve-af al gav; 4) Sefer Ha-Mikhtam (34b) in the name of R. Moshe b. R. Yehuda, father of the author of the Hashlama:

 

"This only applies where he doesn't have" – that is to say, where he does not have all of them, but only two or three; "they hinder each other" – he must take together whatever he has, but if he takes them one at a time, he has not fulfilled his obligation. If, however, "he has all of them, they do not hinder each other" that he must take them all together, for even if he takes them one at a time, he has fulfilled his obligation.

 

(Translated by David Strauss)





[1] Compare what he says at the beginning of Hilkhot Geneva and at the beginning of Hilkhot Gezela.

[2] The Ramban's novel position is better known as the view of the Yere'im (no. 422): "One must be careful not to steal the four species, even from a non-Jew. Even though stealing from a non-Jew is permitted, as long as it has not left the non-Jew's possession it is not called 'yours.' For Rav Huna said to the traders, 'When you buy hadasim from a non-Jew, do not cut them yourselves, but rather let them cut them and give them to you. Why? Unless known otherwise, non-Jews are presumed to have stolen the land, and land cannot be stolen. Therefore let them cut them, so that yi'ush should take place in their hands, and a change of domain in your hands.' And we say that it is talking about for the traders themselves, but for us, there is yi'ush in the hands of the traders, and a change of domain in our hands, and it is permitted. He maintains that yi'ush without a change of domain does not effect a kinyan. It may be inferred from here that stealing from a non-Jew is permitted, for following the kinyan, we do not disqualify [the hadasim] because of mitzva ha-ba'a be-aveira. Therefore it is permitted, provided that it does not involve a desecration of God's name.

[3] There are also other understandings of Rashi. See Kapot Temarim, ad loc., and Responsa Rashba, I, no. 852.

[4] The cancellation of the obligation is not direct, but merely the result of the inability to fulfill it. We shall see an expression of this below.