30a-31a: Acquiring Stolen Objects (1)

Last week, we learned the gemara on 30 a that addressed our mishna's first ruling, that a stolen lulav is invalid. We discussed the issue of whether such a lulav is disqualified only on the first day, or for the duration of Sukkot. The gemara now continues by quoting an additional discussion pertaining to stolen branches.

We begin three lines from the end of 30a, with the last word on the line.  

This section of the gemara quotes and analyzes the advice that Rav Huna gave to a certain group of merchants who sold hadasim for use in the mitzva of the four species. Rav Huna advised them that when they purchase hadasim from idolators, they should not actually cut the hadasim themselves, but should rather have the seller cut the hadasim off the tree and give them the branches.

The reason for this advice was that land theft was a common occurrence. Now, most land was not stolen, and it was difficult to track the origins of each parcel of land, so it was permitted to do business with anyone who was not known to have stolen his land. However, if the land had in fact been stolen, one who used branches or an etrog grown there would not fulfill his mitzva of the four species, for we know that stolen items are invalid for use in this mitzva! Rav Huna therefore advised the merchants to take precautions in order to avoid this problem.

We have briefly mentioned in the past that with regard to movable property (metaltelin), once the owner despairs of recovering it (ye'ush), it leaves his jurisdiction, and can be acquired by someone else (although, of course, the thief must still compensate his victim). However, this is not the case with regard to land (karka). Land cannot be removed from the owner's domain - it is the owner's domain. Regardless of who is currently residing on the land, it is always considered to be in the possession of its rightful owner.

That having been said, if the Jewish merchants were to cut the hadas branches off the trees on stolen property, they would in effect be inadvertently stealing those branches from their original owners. Therefore, Rav Huna's advice was that the non-Jew should cut the branches off the trees. Once that happens, ye'ush immediately removes the branches from the jurisdiction of the original owner, since they are metaltelin, and the merchants can acquire the branches through the transfer of possession (shinui reshut) from the non-Jew to the Jewish merchant.

The gemara questions the necessity of having the non-Jew cut the branches. Even if the merchants were to cut the branches, once they sell the hadasim to their customers, there will be ye'ush as well as shinui reshut; thus, the hadasim should be fit for use even when harvested by the Jewish merchants! The gemara concedes that the concern regarding the kashrut of the hadasim applies only to the hadasim that the merchants themselves use for the mitzva.

We have briefly mentioned in previous shiurim that there is a difference of opinion regarding the circumstances in which stolen property can be acquired. One view asserts that ye'ush is of paramount significance. According to this view, once the ye'ush takes effect, the object is acquired by whoever has it in his possession. Other views hold that ye'ush is a necessary step, but is not sufficient by itself to allow acquisition of the object. One can only acquire the object by way of transfer of possession (shinui reshut), or by making some physical change in the object (shinui ma'aseh), after ye'ush has taken place.

Does Rav Huna seem to take a stand on this issue? Think about this for a moment - and try to learn Rashi (30b s.v. ve-karka eina nigzelet).

As previously stated, the gemara's concern here is that the hadasim will be deemed unfit for use in the mitzva of the four species. There are two ways to understand Rav Huna's concern if the Jewish merchants themselves cut the hadasim:

1) Ye'ush is not enough to allow for the transfer of ownership. Therefore, if the merchants cut the branches and thereby inadvertently steal them, they will not be able to acquire the hadasim.

2) Ye'ush is enough to allow for the transfer of ownership. The merchants do become the legal owners of the branches, but the branches are nonetheless halakhically unfit for use in the mitzva. Because the merchants are the "thieves," there is a problem of mitzva ha-ba’ah ba-aveira.

Neither of these problems persists once the merchants sell the branches to their customers. Even if they do come from a field that was stolen, the buyers certainly own the branches, as there has already been a combination of ye'ush and shinui reshut. And, since the buyers did not steal the branches themselves, there is no problem of mitzva ha-ba’ah ba-aveira.

Let's continue on in the gemara. We are up to the third line of 30b.

The gemara here again questions the necessity of Rav Huna's advice with regard to the hadasim used by the merchants themselves. Even if they were to cut the hadasim from the trees and the land turns out to have been stolen, the branches should still be acceptable for use in the mitzva. Three of the four species - the lulav, hadasim and aravot - are bound together before we perform the mitzva. This effects a physical change in the object (shinui ma'aseh), which also allows acquisition of the object. Thus, even without shinui reshut, the hadasim should be fit for use in the mitzva!

Before we move further, we should more fully analyze the issue of shinui ma'aseh raised in our gemara. First, let us go through some background. The Torah (Vayikra 5:23) mandates that a thief return what he stole to its rightful owner: "And he shall return the object that he stole . . ." The gemara (Bava Kama 66a), based on the wording of the pasuk, "that he stole," derives that the obligation to return the object applies only if it remains in the same form it was at the time of the theft. If he has caused a physical change in the object, the thief must compensate his victim, but may keep the object. A classic example of this is if one steals wood and makes it into a utensil. The utensil belongs to the thief, and he must pay his victim the value of the wood that he stole.

How does shinui ma'aseh impact on our gemara? That depends on how we interpret the opinion of Rav Huna. Above, we offered two possibilities as to the problem that Rav Huna seeks to bypass - either lack of ownership or mitzva ha-ba’ah ba-aveira. Shinui ma'aseh addresses these issues:

1) If the problem is lack of ownership, shinui ma'aseh would be an easy solution, for the thief acquires ownership of the object when he changes it.

2) If the problem is mitzva ha-ba’ah ba-aveira, the application of shinui ma'aseh is trickier. After all, even if a thief acquires the branch, shouldn't mitzva ha-ba’ah ba-aveira still apply as long as he acquired it via aveira? One must conclude that shinui ma'aseh doesn't just allow for acquisition of the object - it changes the very identity of the object. This is no longer the same branch that was stolen! Thus, even mitzva ha-ba’ah ba-aveira does not apply.

Let's get back to our gemara. The gemara responds that shinui ma'aseh is not applicable to this case, for one of two reasons.

1) There is a debate in the gemara as to whether the three species must be bound, or if it is preferable to bind them but not absolutely necessary. Rav Huna may hold that the binding is not absolutely necessary. Thus, we cannot be sure that the merchant will actually bind the species, thus causing a physical change in the object. Alternatively, even if he does bind them, it may not be considered a shinui ma'aseh. The hadasim are not physically altered when they are bound to the other species, they are just added to a larger unit. The bundle as a whole has significance only in that it is now usable for the mitzva. If the binding is not really necessary for the mitzva, the bundle does not have its own status, and no meaningful change has been effected.

2) Even if we are to consider the binding a meaningful physical change, it is not halakhically relevant as a shinui ma'aseh. Since the change is reversible - one can easily return the hadasim to their original form simply by removing the binding; it is not considered a true shinui ma'aseh.

The gemara challenges Rav Huna once more. Even if the binding is not considered a shinui ma'aseh, it should be enough to cause a "change of name" (shinui ha-shem). Before the binding, the hadas branches were known simply as asa, which is another name for hadasim. After the binding, the bundle is called hoshana (because they are held while reciting the hoshana prayers). Even a non-permanent change that causes a change of name is enough to allow acquisition of a stolen object. Thus, binding should be enough to permit the merchant to fulfill his mitzva even if he himself cuts the hadasim!

The gemara responds that there is no real name change in our case. Even before they are bound to the lulav and aravot, hadasim are sometimes referred to as hoshanot, because people know that they will eventually become part of the "hoshana." Thus, Rav Huna's concern stands, and it is preferable for the merchants themselves not to cut the hadasim that they will use for the mitzva.