Mitzva Ha-ba'a Be-Aveira (Part II)
Yeshivat Har Etzion
SHIUR #13: MITZVA HA-BA'A BE-AVEIRA (PART II)
Rav Shmuel Shimoni
But gazul (stolen) – granted on the first day, it is written "lakhem" (for yourselves) – belonging to you. But on the second day of the festival, why not? Rabbi Yochanan said in the name of Rabbi Shimon ben Yochai: Because it is a mitzva performed through the commission of a transgression (mitzva ha-ba'a be-aveira). As it is stated: "And you have brought that which was stolen, and the lame, and the sick" (Malakhi 1:13). "Stolen" similar to "lame" – just as the lame has no repair, so too the stolen has no repair, there being no difference between before yi'ush and after yi'ush. Granted before yi'ush – The Torah said: "If any man of you bring an offering" (Vayikra 1:2), and it is not his. But after yi'ush, surely he acquired it through yi'ush! Rather, because it is a mitzva ha-ba'a be-aveira. And Rabbi Yochanan said in the name of Rabbi Shimon ben Yochai: What is that which is written: "For I the Lord love judgment, I hate robbery with burnt offerings" (Yeshayahu 61:8). This may be likened to a king of flesh and blood who was passing a customs house. He said to his servants: Pay the customs to the customs-officers. They said to him: Surely all the customs belongs to you! He said to them: All [the other] wayfarers will learn from me, and not flee from paying customs. Similarly, the Holy One, blessed be He, said: I the Lord hate robbery with burnt offerings. My children will learn from me and flee from theft. It was also stated: Rabbi Ami said: Yavesh (dry) is disqualified because it is not hadar; gazul (stolen) is disqualified because it is a mitzva ha-ba'a be-aveira. And he disagrees with Rabbi Yitzchak. For Rabbi Yitzchak bar Nachmani said in the name of Shemuel: This only applies on the first day of the festival, but on the second day of the festival, since he fulfills his obligation with a borrowed [lulav], he also fulfills his obligation with a stolen one.
In the previous shiur we began to deal with the law of mitzva ha-ba'a be-aveira. Many Rishonim understood that Shemuel rejects this law entirely, but the final law is not in accordance with his view (Ramban in Milchamot, Ritva on our passage). Some even ruled in accordance with his position (Ba'al Ha-Ma'or on our passage). In today's shiur we will deal with additional components of Rabbi Shimon ben Yochai's law, and over the course of the discussion we will see other understandings of the dissident opinion of Shemuel.
I. THE MITZVA
The main discussion of this issue we saw already six weeks ago in the shiur dealing with a stolen sukka. The Rishonim asked why was a special derivation necessary to disqualify a stolen sukka; why doesn't the law of mitzva ha-ba'a be-aveira suffice? One explanation is brought by Tosafot Rabbenu Peretz and by Tosafot Rash in Pesachim 35a and by other Rishonim in several places in the name of the Tosafot, that the law of mitzva ha-ba'a be-aveira is limited to the realm discussed in our passage, namely, sacrifices, and to a small number of other mitzvot which share a certain similarity with sacrifices, including lulav. See, for example, the wording of Rabbenu Peretz: "A stolen lulav is different, for we pray with it, and praise God with it in order to appease Him, and so too a sacrifice, and so too [other] mitzvot which come to appease." Rabbenu David formulates this position slightly differently: "The law regarding mitzva ha-ba'a be-aveira relates only to a sacrificial offering, as Scripture states: 'For I the Lord hate robbery with burnt offerings' (Yeshayahu 61:8) - [teaching] that a prosecutor does not turn into a defender. And the law governing a lulav is similar to the law governing a sacrifice, for it too comes to appease and it is like a sacrifice." See also the Ramban in Pesachim who writes the same thing without relating to the idea of appeasement: "I found in the Tosafot that they said that mitzva ha-ba'a be-aveira does not apply to other mitzvot, but only to sacrifices and lulav, with which we praise [God]."
The rationale behind this limitation of the law in its various formulations is that only in these realms, in which we turn directly to God and mention the name of Heaven, does an internal contradiction exist when this address is accompanied by something that God abhors. The novelty in this position of the Rishonim is that the mitzva of lulav is included in this category of mitzvot.
[It may be noted, by the way, that the two mitzvot that are brought as clear examples of mitzvot that do not fall into this category are sukka, for the aforementioned reason, and matza, because the Gemara in Pesachim 35a needs special derivations in order to disqualify prohibited matza from being used for the mitzva. It may be possible, however, to question these two examples. Rishonim in both passages disagreed with this approach, arguing that fundamentally the law of mitzva ha-ba'a be-aveira applies to these mitzvot as well. While it is possible to argue that they simply disagree with the Tosafot's principle, it is also possible to suggest that they accept it, but they maintain that even these mitzvot are included. My revered teacher, HaRav Aharon Lichtenstein, raised this possibility with regard to matza. Though matza does not involve appeasement, the criterion of praise mentioned by the Ramban in the name of the Tosafot is met in matza, for the mitzva of matza constitutes an expression by way of an action of retelling the story of the exodus from Egypt. But this is not the forum to develop this idea at greater length. As for sukka, the Gemara on p. 9a compares sukka and chagiga, and says that for this reason, the name of Heaven adheres to sukka. And in Torat Kohanim (Emor, parasha 12) this relationship is formulated even more clearly: "'The feast (chag) of booths for seven days to the Lord' (Vayikra 23:34). You might say both chagiga and sukka are for God. Therefore the verse teaches us: 'You shall observe for yourself the feast of booths seven days' (Devarim 16:13). If the feast of booths you observe for yourself, perhaps chagiga and sukka are for an ordinary person. Therefore the verse teaches: 'The feast of booths for seven days to the Lord.' How so? Chagiga for God and sukka for an ordinary person."]
In contrast, it might be suggested that Shemuel accepts the law of mitzva ha-ba'a be-aveira, and he also accepts the fundamental position of the aforementioned Tosafot. He only disagrees about the application to lulav, because he maintains that it does not involve a mitzva of praise, appeasement or mentioning of God's name, but rather an ordinary mitzva.
As may be remembered, the Ramban in Pesachim disagrees with this position of Tosafot Rabbenu Peretz, and even brings a proof against it from Yerushalmi, Shabbat 13:3, which deals with mitzva ha-ba'a be-aveira with respect to matza and rending a garment in grief over a deceased relative:
Here too he should fulfill his obligation to rend his garment… The colleagues asked Rabbi Yose. Did not Rabbi Yochanan say in the name of Rabbi Shimon ben Yotzedek: [With] stolen matza one does not fulfill his obligation on Pesach? He said to them: There, it itself is a transgression; here, however, he committed a transgression.
The question arises: Is it possible to distinguish with respect to mitzva ha-ba'a be-aveira between Torah mitzvot and rabbinic mitzvot? The Tosafot on our passage (p. 39a, s.v. mitokh) understands that Shemuel does not disagree with the basic law of mitzva ha-ba'a be-aveira, and he even agrees that a stolen lulav is disqualified in the Temple all seven days of the festival (there is nothing new in this position, for according to Tosafot even a borrowed lulav is disqualified all seven day of Sukkot, though Tosafot implies that in addition to this, there is also the law of mitzva ha-ba'a be-aveira). He only disagrees about the application of this law of mitzva ha-ba'a be-aveira to rabbinic mitzvot:
It is only here where it is by rabbinic law that there is no concern about mitzva ha-ba'a be-aveira.
The Sha'agat Arye (no. 99) understands that according to Tosafot, the rule of mitzva ha-ba'a be-aveira is only by rabbinic decree, and the Sages did not apply it to rabbinic laws. The Ramban on our passage (Milchamot 15a), who rules in accordance with Rabbi Yochanan (and also understands Shemuel differently than did the Tosafot) clarifies why this explanation is incorrect:
If a stolen lulav is disqualified because of mitzva ha-ba'a be-aveira, all the more so should it be disqualified on the second day, when it is not taken by Torah law, and it brings sin to mind.
On the contrary, argues the Ramban, there should be greater stringency on the second day – for we are dealing with a mitzva the level of whose obligation is not so high, the Torah itself not having commanded it, and a person performs it and presents himself before heaven by way of something that is abhorrent. Clearly he brings himself no benefit, but merely digs a pit for himself. [The Ramban says all this despite the fact that in his novellae on Pesachim he maintains like Tosafot that the law of mitzva ha-ba'a be-aveira is only by rabbinic decree.]
The possibility of distinguishing between a Torah law and a rabbinic law is raised also by the Rosh (no. 3), whose words suggest a new understanding of the principle of mitzva ha-ba'a be-aveira. The Rosh analyzes the position of Shemuel in the same way as Tosafot, and therefore rules against him:
Shemuel maintains that since [taking the lulav on the second day] is by rabbinic law, it is not regarded as a mitzva ha-ba'a be-aveira… His rationale is not reasonable; for since he recites a blessing and mentions the name of heaven, he blasphemes in a rabbinic matter just as he does in a Torah matter.
The Rosh implies that he focuses the problem of mitzva ha-ba'a be-aveira on the blessing recited over the mitzva, i.e., that associating the name of heaven with a sin constitutes blasphemy. [According to this, the Rosh can accept the view of Rabbenu Peretz regarding mitzva ha-ba'a be-aveira, but apply it to all the mitzvot over which a blessing is recited.] According to this, of course, it is reasonable to accept the view of the Tosafot, p. 9a, s.v. ha-hu, that the law of mitzva ha-ba'a be-aveira is by rabbinic law (the Rosh in his Tosafot agrees with this), though there is still an element of novelty in this that a disqualification of the blessing invalidates the entire mitzva. What is more, the Tosafot and the Tosafot ha-Rosh on our passage, which we shall deal with below, conclude that there are cases where the law of mitzva ha-ba'a be-aveira does not apply, and yet a blessing may not be recited. This matter requires further clarification.
II. THE SIN
As stated above, the Rishonim had difficulty understanding the need for a special derivation to disqualify matza made out a prohibited food. One way to resolve the difficulty was to distinguish between the mitzva of matza and the mitzva of lulav. The Ramban in Pesachim raised the possibility of distinguishing between aveirot:
The matter requires clarification, because of mitzva ha-ba'a be-aveira. I only found this regarding stolen property, and this is the implication here in the Gemara. But in tractate Shabbat, in chapter Rabbi Eliezer, I found proof in the Yerushalmi (halakha 3) [that it applies] even to other transgressions.
The Ramban argues that in the Babylonian Talmud we find the law of mitzva ha-ba'a be-aveira only in connection with stolen property, and from this it may be inferred that it is only in relation to this transgression that God said that He hates robbery with burnt-offerings and that a stolen animal is similar to a lame one. However, the Gemara in Berakhot 47b, brings the idea of mitzva ha-ba'a be-aveira in connection with the prohibition of emancipating a non-Jewish slave:
It once happened that Rabbi Eliezer entered a synagogue and did not find ten [men], and [so] he emancipated his slave and completed the [quorum of] ten… How did he do this? Surely Rav Yehuda said: Anybody who emancipates his slave transgresses a positive precept, as it is said: "You shall work them forever"! – It is different for a mitzva. – It is a mitzva ha-ba'a be-aveira! – A mitzva of the community is different.
The Achiezer, however, already wrote about this:
The Gemara regarding mitzva ha-ba'a be-aveira in Berakhot is not referring to the general law of mitzva ha-ba'a be-aveira. For the Gemara there is not dealing with the issue whether a person fulfills his obligation regarding the mitzva when it is accompanied by a transgression, but rather that lekhatchila he is forbidden to commit a transgression in order afterwards to fulfill a mitzva. For this reason, the view of the Noda be-Yehuda's son-in-law, cited at the end of the Noda be-Yehuda, mahadura kama (Choshen Mishpat, no. 40) is astonishing. For he too likens the matter of mitzva ha-ba'a be-aveira regarding a stolen lulav to the matter of emancipating a slave in order to complete a quorum of ten. And in truth there is no connection, as I have explained. (III, no. 71)
As noted by the Ramban, however, it is clear from the Yerushalmi in Shabbat that other prohibitions, including the desecration of Shabbat, are fundamentally included in the rule of mitzva ha-ba'a be-aveira.
We discussed above the possibility of distinguishing between mitzvot mandated by Torah law and those stemming from rabbinic enactment. Is there a difference between Torah prohibitions and rabbinic decrees? According to the Sha'agat Arye cited above, it may certainly be suggested that if the rule of mitzva ha-ba'a be-aveira is only by rabbinic law, the Sages did not issue their decree regarding rabbinic prohibitions. Rashi in Pesachim (35b, s.v. tavul mi-derabban), however, writes: "Tevel by rabbinic law, but nevertheless it is regarded as a mitzva ha-ba'a be-aveira." But if the rule of mitzva ha-ba'a be-aveira is by Torah law, it might be asked whether this is applies even to rabbinic prohibitions, and the Torah recognizes rabbinic prohibitions.
III. MORE ABOUT THE POSITION OF SHEMUEL
Thus far we have seen several approaches regarding the position of Shemuel that a stolen lulav is fit after the first day of Sukkot: According to the Ba'al Ha-Ma'or and the Ramban, Shemuel rejects the law of mitzva ha-ba'a be-aveira. According to the Tosafot and the Rosh, he rejects the application of the rule of mitzva ha-ba'a be-aveira to mitzvot mandated only by rabbinic law. According to a third possibility, Shemuel maintains that the law of mitzva ha-ba'a be-aveira pertains only to mitzvot involving appeasement, and that lulav does not fall into that category. The two first understandings cannot be reconciled with the position of the Rambam, who generally accepts the law of mitzva ha-ba'a be-aveira, but nevertheless rules in accordance with Shemuel that a stolen lulav is fit after the first day (Hilkhot Lulav 8:9), without limiting this to an obligation by rabbinic law (as we saw in the past that according to the simplest understanding of the Rambam, many leniencies apply after the first day even with respect to the Torah obligation in the Temple).
In the wake of our clarification of the question when is a mitzva regarded as having been accompanied by a transgression, we can propose three additional explanations of the view of Shemuel:
1) Based on the assumption that the rule only applies when the mitzva is performed only by virtue of the transgression (see Tosafot, s.v. mishum), the Penei Yehoshua (ad loc.) proposes the following idea:
Shemuel might certainly maintain that the law of mitzva ha-ba'a be-aveira applies even to rabbinic laws, only that he maintains that mitzva ha-ba'a be-aveira only applies when the mitzva cannot be performed without the commission of the transgression… Shemuel is even more lenient, for regarding a thief himself, the rule of mitzva ha-ba'a be-aveira only applies where it is necessary that he have in mind to acquire the lulav, namely, on the first day of the festival. Since a borrowed lulav is unfit, he can only fulfill his obligation with another person's lulav if he has in mind to acquire it. Therefore it is a mitzva ha-ba'a be-aveira. This is not the case on the second day when he can fulfill his obligation with a borrowed lulav. It is, therefore, unnecessary for him to have in mind to acquire it, for even if he took it on condition to return it immediately, he would fulfill his obligation. Therefore the mitzva does not come by virtue of the transgression of intending to acquire it. [Shemuel], therefore, says that he can fulfill his obligation even with a stolen lulav.
The Chatam Sofer, however, in his novellae, strongly rejects this:
His words are very astonishing – is not a person who takes 'borrows' without the owner's consent regarded as a thief, and does he not commit a transgression?
2) Some have suggested explaining Shemuel based on the understanding that focuses on the disqualification of the cheftza (see Kesher Tefutzot, no. 9). It is possible that only when there is a clear mitzva-object is it disqualified because it is also an aveira-object. On the first day of Sukkot there is a mitzva to take a lulav, and therefore the lulav is a cheftza of mitzva, so that the law of mitzva ha-ba'a be-aveira applies. On the other days, however, the mitzva is to rejoice, and the lulav is merely the instrument through which we fulfill this obligation of joy. Therefore, it might not be regarded as a cheftza of mitzva that is disqualified by virtue of mitzva ha-ba'a be-aveira.
3) Rabbi Yosef B. Soloveitchik, in his shiurim (ad loc.) suggests just the opposite: Shemuel agrees with the Minchat Chinukh, that the law of mitzva ha-ba'a be-aveira is not a disqualification of the cheftza, but just a deficiency in the fulfillment of the person, and regarding the mitzva of lulav after the first day, it is only the disqualifications of the cheftza that apply, and not those laws that govern the act of taking, like the law of "yours" according to the Tosafot. In my humble opinion, however, this explanation is difficult, for even if mitzva ha-ba'a be-aveira is not a disqualification of the cheftza, it is not a law in the act of the mitzva of lulav, but rather a law in all the mitzvot in the Torah, and there is no reason that it should not apply to the mitzva of joy as well.
(Translated by David Strauss)
 As opposed to the Tosafot in Sukka 9a, s.v. ha-hu, and 30a, s.v. mishum.
 Rav Yaakov Nagan (Alon Shevut 149) claims that in a Yemenite manuscript of tractate Sukka (RAB 218), the position of Tosafot appears in the Gemara itself: "Rabbi Yochanan bar Abba said in the name of Rabbi Shimon ben Yochai: Because it is a mitzva ha-ba'a be-aveira. As it is stated: 'And you have brought that which was stolen, and the lame, and the sick.' Stolen similar to the lame – just as the lame does not appease at all, so too the stolen does not appease at all."
 I found that Rav Ben Zion Maier Chai Uziel, ztz"l, raised an objection against the Rosh: "I am very astonished by his words, for when we say that it is unfit, it means that he does not fulfill his obligation of lulav, even if he did not recite a blessing, and did not mention the name of heaven" (Responsa Mishpetei Uziel, IV, no. 6).
 We will see below other understandings according to which the law of mitzva ha-ba'a be-aveira only applies when there is an aveira-object. According to this it is possible to suggest that according to the view of the Netivot (234, no. 3) that rabbinic prohibitions are merely prohibitions imposed on the person but do not create aveira-objects, they should not be governed by the law of mitzva ha-ba'a be-aveira.
 See Hilkhot Issurei Mizbeach 5:7-9, and Hilkhot Shofar 1:3.