31a: Beauty and the Four Species (1)

Over the past two shiurim, we have discussed situations in which one who steals acquires what he has taken and is no longer required to return it to the original owner. Instead, he pays his victim the value of what he stole and keeps the item for himself. One example was a situation in which the stolen item has been physically altered. The "original" object no longer exists, and it is therefore impossible to return it. An additional case is that of takanat ha-shavim, which refers to a rabbinic enactment that that was intended to promote teshuva. The Sages realized that at times, the collateral damage associated with returning an object would be too great for the robber to bear, and he would desist from doing teshuva and from repaying his victim at all. In the context of our sugya, takanat ha-shavim means that if one steals materials and builds them into one's home, for example, one is not required to dismantle the whole building in order to return the stolen brick or beam. The gemara applied this to one who steals wood and uses it for sekhakh on his sukka. Our gemara now continues this theme.

We are in the middle of 31a, right across from Tosafot s.v. ור"י.

Ravina seemingly restates what we have learned previously. If one steals a beam and uses it in the construction of his sukka, the rabbinic enactment allowing him to keep the object and pay its value applies. What we referred to earlier as takanat ha-shavim is here called takanat marish, the "enactment of the crossbeam." The rabbis allowed one to keep a stolen crossbeam rather than dismantling the structure in order to return it.

The fact that the enactment is called "the enactment of the crossbeam" reflects the reason for the enactment. It is a major undertaking to remove a crossbeam from a structure, and it causes significant financial loss. Therefore, the Rabbis did not require one to return the beam. How does this apply to a sukka, which is a temporary structure? Clearly, having to dismantle a sukka does not entail anywhere near the sacrifice necessary to dismantle a real building!

Rashi here (s.v. minei takanat marish, second to last short line in Rashi) explains:

Because of the enactment of the crossbeam - and we do not say there is no great loss here, and he shall dismantle his sukka, for the mitzva makes it like a permanent structure all seven (days of sukkot).

The temporary nature of the sukka makes it ineligible for the application of takanat marish. However, due to the fact that there is a mitzva to dwell in the sukka all seven days of Sukkot, the sukka is considered like a permanent structure during that time period. This may be because it is actually one's home during Sukkot, much like a permanent dwelling. Alternatively, the loss incurred by the robber due to his hampered ability to fulfill the mitzva of sukka is comparable to the significant financial loss incurred by one who must dismantle his real home.

The gemara picks up on the fact that Ravina's ruling does not seem new to us. After all, Rav Nachman previously made the same ruling with regard to wood that one steals and uses as sekhakh on one's sukka! Why would the case of the beam be any different from the case of the wood (by which we mean smaller sticks and branches)?

The gemara answers that one might have thought that the cases are different because smaller pieces of wood are readily available, while heavy beams are not. Thus, since it is more difficult for the victim to take the money he receives from the robber and purchase a new beam, and the demolition of the sukka does not really cause the robber significant financial loss, one may have thought that the Sages did not extend their enactment to the case of a beam. Ravina therefore came to teach us that the enactment applies even in such a case.

The gemara concludes with an additional point regarding the application of takanat marish to a sukka. We saw Rashi's comment that, due to its temporary nature, a sukka would not be the type of structure that would warrant application of takanat marish, if not for the mitzva to dwell in the sukka on Sukkot. It follows that takanat marish only applies during Sukkot, when this mitzva applies. After the holiday, the sukka is no longer considered a permanent structure. If the robber has not yet compensated his victim for the stolen beam, takanat marish does not apply, and he must return the actual beam itself. However, if he cemented the beam in place, thus creating a permanent structure (the walls of a sukka may be permanent, as long as the sekhakh is not), takanat marish would apply even after Sukkot. At this point, the structure really is permanent, even without considering the mitzva of sukka. It would thus meet the normal criteria for the application of takanat marish.

Moving on in the gemara

The mishna at the beginning of this chapter (on 29b) opened by stating that a stolen lulav or one that is dry is invalid . Until now, the gemara has addressed the first part of that first statement - that a stolen lulav is pasul. Along the way, we also raised some related issues regarding stolen items. At this point, the gemara turns its attention to the second half of that opening phrase - the disqualification of a dried out lulav.

We are about two-thirds of the way down on 31a.

The gemara opens its discussion by quoting a short baraita, which adds an interesting piece of information. The first, anonymous view (i.e. the tanna kama, lit. the "first tanna") agrees with our mishna that a dried out lulav is invalid, but R. Yehuda disagrees and validates a dried out lulav.

Rava immediately sets out to analyze R. Yehuda's opinion. The reason to disqualify a dried out lualv is that it does not meet the requirement of hadar, that the four species must be beautiful. This requirement is learned from the way the Torah refers to etrog, which it calls "peri etz hadar." This requirement is extended to the other species as well. R. Yehuda seems to hold that the lulav need not be hadar. There are two possible explanations for R. Yehuda's opinion:

1) He denies the requirement of hadar. Perhaps the Torah did not mean to imply that the etrog must be of beautiful form and appearance. (In fact, the gemara will present other options as to what this word might teach us). 

2) R. Yehuda admits that an etrog must be beautiful, but he argues that we cannot extend this requirement to include lulav.

Rava argues that the second explanation is the key to R. Yehuda's opinion. Everyone agrees that an etrog must be hadar. R. Yehuda simply denies that we can transfer this criterion to lulav.

The gemara now wonders if it is so clear that R. Yehuda does not require that a lulav be hadar - something that we assumed to be the case according to both explanations mentioned above. After all, our mishna on 29b mentioned that according to R. Yehuda, the leaves of the lulav must be closed; if they are not, one must bind them on top in order to keep them orderly. Does this not stem from a requirement that the lulav be hadar?

The gemara rejects the question and explains that the binding must be done in order to satisfy a different requirement. The pasuk refers to the lulav as kappot temarim. The Hebrew word kappot can be read as kafut, which means tied up. Thus, according to R. Yehuda, part of the essential requirement of taking a lulav is that it should be closed. It seems that if it were not closed, it may not even be considered "kappot temarim." Thus, we have no proof that R. Yehuda does actually require that the lulav be hadar. 

The gemara now continues this line of questioning:  

The gemara now quotes an upcoming mishna in our perek, which states that according to R. Yehuda, we may only bind the lulav with lulav-material (like the rings and holders that are commonly made for lulavim nowadays) and not with material from any other species. What could the reason be for this ruling if not that different material would "clash" with the lulav and ruin its hadar status? It must be that R. Yehuda requires hadar even for the lulav!

The gemara answers, again, that there is a different reason for R. Yehuda's ruling. There is a Biblical prohibition against adding to or subtracting from a mitzva (Devarim 13:1). If one were to add material from a different species, one would essentially be taking five minim and not just the four that the Torah mandates.

1) The gemara makes reference to R. Yehuda's opinion that the lulav must be bound together with the aravot and hadasim. The Sages disagree and hold that it is not necessary to bind these three minim together, though it is a nice way to beautify the mitzva. What does this machloket have to do with the point the gemara was discussing? Either way, if one adds a fifth species, it should be considered adding to a mitzva (bal tosif)! 2) How far are we going to take the issue of adding to a mitzva ("bal tosif")? If I pick up the four species while wearing a glove, is that a problem? What if I have a speck of dust in my hand?! See Rashi on the last line of 31a!

The answer to our second question solves the first one as well. Let's take a look at Rashi.

Rather because he holds lulav requires binding - therefore, all that is bound with it is from the mitzva, and he is found to violate "do not add" if he binds a fifth species.

There is only a problem of bal tosif if one does something additional as part and parcel of the mitzva. According to the Sages, since one does not have to bind the species together, the binding is not actually part of the mitzva, but rather something additional and external. Therefore, one cannot violate bal tosif with the material one uses for the binding. According to R. Yehuda, binding is absolutely necessary in order to fulfill the mitzva. The binding is therefore an integral part of the mitzva itself. If one adds a fifth species to the mix in order to bind the others, the fifth species has become integrated into the mitzva, and there is a violation of bal tosif.

Once again, the gemara has shown that R. Yehuda does not indicate that there is a requirement of hadar for lulav. Thus, his opinion here validating a dried-out lulav is not inconsistent with other statements of his. The gemara, however, has not yet gotten to Rava's explanation of R. Yehuda's ruling . . . . Tune in next week for the conclusion of this sugya!