A Stolen Sukka

  • Rav Shmuel Shimoni
The Israel Koschitzky Virtual Beit Midrash

 

Gemara Sukka
Yeshivat Har Etzion


SHIUR #06: A STOLEN SUKKA

By Rav Shmuel Shimoni

 

 

WHAT IS THE CASE OF A STOLEN SUKKA?

 

            In the framework of a series of disputes between Rabbi Eliezer and the Sages on matters pertaining to a sukka, the Gemara records the following disagreement:

 

It was taught: Rabbi Eliezer says: Just as a person does not fulfill his obligation on the first day of the festival [of Sukkot] with another person's lulav, as it is written: "And you shall take for yourselves on the first day the fruit of the hadar tree, branches of palm trees" (Vayikra 23:40)belonging to you, so too a person does not fulfill his obligation in another person's sukka, as it is written: "The feast of booths shall you observe for yourself seven days" (Devarim 16:13) – belonging to you. But the Sages say: Even though they said that a person does not fulfill his obligation on the first day of the festival with another person's lulav, he does fulfill his obligation with another person's sukka, as it is written: "All those that are home born shall dwell in booths" (Vayikra 23:42) – this teaches that all of Israel are fit to dwell in one sukka. - And the Sages, how do they interpret the word lekha, "for yourself"? - They need it to exclude a stolen [sukka], but as for a borrowed [sukka], it is written "all those that are home born." (Sukka 27b)

 

            This passage gives rise to many questions, some of which are discussed by the Rishonim on the site, while others are discussed in the framework of the passages at the beginning of the third chapter, some of which we shall cite here. There the Gemara records another dispute between Rabbi Eliezer and the Sages:

 

Our Rabbis taught: A stolen sukka and one who spreads out sekhakh in the public domain – Rabbi Eliezer disqualifies it, whereas the Sage declare it fit. - Rav Nachman said: They disagree about the case where a person forcibly removes his fellow from his sukka. And Rabbi Eliezer follows his own opinion, for he said: A person does not fulfill his obligation in another person's sukka. If land can be stolen, it is a stolen sukka; and if land cannot be stolen, it is a borrowed sukka. And the Sages follow their own opinion, for they said: A person fulfills his obligation in another person's sukka. And land cannot be stolen, so it is a borrowed sukka. But if he stole branches, and used them as sekhakh, all agree that he has nothing but a claim on the value of the branches. From where do we know this? From the fact that it teaches [the case of the stolen sukka] similar to the case of the public domain. Just as in the case of the public domain, the land is not his, so too in the case of [the stolen] sukka, the land is not his. (Sukka 31a)

 

            As stated above, Rabbi Eliezer and the Sages disagree about a borrowed sukka, the Sages ruling that it is fit because of a special derivation:

 

As it is written: "All those that are home born shall dwell in booths" (Vayikra 23:42) – this teaches that all of Israel are fit to dwell in one sukka.

 

Rashi explains:

 

This implies: One sukka for all of Israel, that they should dwell in it one after the other. And it can't possibly belong to all of them, because they could not each have a share in it in the value of a peruta. Rather, by way of borrowing.

 

            Rashi, so it seems, finds it necessary to reject a certain interpretation of this derivation that would not lead us to the conclusion that a borrowed sukka is fit, namely, that the verse is referring to a sukka that is jointly-owned by all of Israel. The simple understanding is that it is easier to rule that a sukka is kosher if it is jointly-owned than if it is borrowed, and it is possible that even Rabbi Eliezer would agree that a jointly-owned sukka is kosher.

 

            According to this, Rabbi Eliezer's reasoning seems to be simple: In order to fulfill the mitzva, a person must enjoy ownership of the sukka, and therefore a borrowed sukka is disqualified, but a jointly-owned sukka is kosher, because each partner enjoys ownership over part of the sukka. Here, however, there is a difficulty, for each partner enjoys title over only part of the sukka, but not over the entire sukka!

 

            One possible solution to this problem requires us to modify our understanding of the concept of partnership. If partnership means that each partner owns a certain portion of the shared property, but the other portions do not belong to him, the question would indeed be very strong. It is possible, however, to understand partnership differently – each partner enjoys ownership over the property as a whole, that ownership being shared with the other partners. This being the case, it can be argued that he owns the entire property, even if his ownership is not exclusive. [These two understandings of partnership have been discussed at length by the Acharonim, and we will not expand upon the issue. Let us merely note that the Sha'ar Ha-Mishpat 275:1, is in doubt about a case where a Jew and a convert to Judaism who has no heirs are partners in a certain property, and the convert dies. Does the Jew automatically acquire the entire property even without performing a kinyan? This clearly depends on the aforementioned question: If the Jew enjoys ownership over the entire property, that ownership being shared with the convert, it stands to reason that with the removal of the convert's ownership, the Jew becomes the exclusive owner of the field. But if he owns only part of the property, it stands to reason that when the convert dies, his share of the property becomes hefker, and whoever grabs it first acquires it.] According to this approach, even when ownership over a certain article is required, joint-ownership satisfies that requirement.

 

            The Tosafot on our passage understand that, according to Rabbi Eliezer, a jointly-owned sukka is disqualified. They raise an objection against Rashi from a talmudic passage in Bava Batra regarding an etrog:

 

Rabba son of Rav Huna said: When brothers acquired an etrog out of an [inherited] estate, [and] one of them used it for its ritual purpose, if he is able to eat it, he has fulfilled his obligation; but if not, he has not fulfilled his obligation. This, however, only applies in the case where an etrog is available for every one [of the brothers], but not a quince or a pomegranate. (Bava Batra 137b)

 

            This Gemara implies that in the case of an etrog, where there also exists a requirement of ownership, partnership does not suffice. Indeed, the Ritva (ad loc.) notes that the Rishonim disagree on the matter:

 

The Geonim and Rabbenu Alfasi, of blessed memory, and several other rabbis learn from here regarding a jointly-owned etrog, that each partner must transfer his rights [in the etrog] to the other partner when he comes to fulfill his obligation with it on the first day [of Sukkot]. But I heard from my master, the Rashba, that there is no proof [from here], because here we are dealing with a case where he took it from the inherited estate to eat it or to smell it or to do business with it. But when he takes it to fulfill his obligation with it, then certainly [we say that] they became partners with that in mind, that each of them would be able to fulfill his obligation with it, so that when he takes it, he is taking his own.

 

            In any event, it is clear that a regular situation of partnership does not suffice, and this seems to contradict Rashi's understanding according to the explanation offered above.

 

            On the other hand, the Tosafot themselves agree that there is an area where borrowed property is excluded but jointly-owned property is not, namely, with respect to the obligation of casting tzitzit on a four-cornered garment. The Gemara in Chullin states:

 

Regarding tzitzit, even though the Torah says: "your covering" (Devarim 22:12) – yours yes, jointly-owned no, the Torah [also] writes: "in the corner of their garments throughout their generations" (Bamidbar 15:38) – [to include jointly-owned garments]. Why then do I need "your covering"? For Rav Yehuda, for Rav Yehuda said: A borrowed tallit is exempt from tzitzit for thirty days. (Chullin 136a)

 

            A borrowed tallit is exempt from tzitzit, because only a tallit that is in one's possession is obligated in the mitzva. But, nevertheless, a jointly-owned tallit is obligated, and thus we see that joint-ownership suffices to satisfy the requirement of possession.

 

            The Rivash (Responsa, no. 347) argues that it is possible to reconcile the position of the Tosafot and distinguish between sukka and etrog, on the one hand, and tallit, on the other:

 

I say: Tallit does not present a difficulty for the Tosafot. For there, the Torah says that a person may not wear a tallit belonging to him without first casting tzitzit on it. And it is possible that it obligates him to do this even in the case of joint-ownership, because it is partly his, and he would be wearing his [tallit] without tzitzit, but it exempts him in the case of a borrowed tallit, in which he has nothing. But regarding sukka, one cannot say this. Since the Torah obligates a person to sit in a sukka that belongs to him, how can we say that he fulfills this obligation with a sukka that is half his, when he only has half a kosher sukka, and we require a whole sukka? And the same applies to etrog.

 

            The Rivash distinguishes between mitzvot, such as sukka and etrog, and circumstances that create an obligation to perform a mitzva, such as a four-cornered garment that obligates a person in tzitzit. When the requirement of ownership relates to the mitzva, as in the case of etrog, and as in the case of sukka, according to Rabbi Eliezer, ownership of half the article does not suffice. When, however, the requirement of ownership relates to the circumstances that obligate a person in a mitzva, e.g., that only a garment that belongs to a person obligates him in tzitzit, there is room to say that even a garment that is only partly his may not be worn without tzitzit. That is to say, the status of an article that partly belongs to a person is complex – on the one hand, you cannot say that it is not yours, and therefore, you may not wear it without casting tzitzit upon it; but on the other hand, you cannot say that it is yours, and therefore you cannot fulfill your obligation regarding etrog with an etrog that is only half yours, and the same applies to a sukka, according to Rabbi Eliezer.

 

Of course, this explanation, with the help of which the Rivash reconciles the position of the Tosafot, does not help regarding the view of Rashi, according to which, according to Rabbi Eliezer, while a jointly-owned etrog is unfit, a jointly-owned sukka is fit, and a jointly-owned tallit requires tzitzit. According to Rashi, the distinction is not between mitzvot and circumstances that obligate mitzvot, but rather between two different meanings of the requirement of ownership. The law of "yours" regarding an etrog is a law in the object used for the mitzva – just as a dried out etrog is unfit, so too an etrog that is not yours is unfit. In contrast, the requirement of ownership regarding sukka and tallit is not a law in the object used for the mitzva, but rather a law that relates to the sitting in the sukka and the wearing of the tallit. A person can only fulfill his obligation of dwelling in a sukka in a sukka that belongs to him, for the nature of his dwelling in the sukka must be similar to his dwelling in his house. The same applies to a tallit – only fixed and permanent wearing obligates in tzitzit, and the wearing is determined to be permanent based on ownership of the tallit. The distinction regarding the nature of the requirement of ownership between etrog, on the one hand, and lulav and tallit, on the other, has practical ramifications in the case of joint-ownership. Even if we understand that partnership means that each partner owns only half of the property, the nature of his handling of the property is still not the same as that of a guest or a borrower, but rather as that of a person handling his own property. A person's dwelling in a sukka of which he is a joint-owner is similar in nature to his dwelling in his own house. And similarly a person's wearing of a tallit of which he is a joint-owner is not to be likened to the wearing of a borrowed garment, but rather to the wearing of one's own garment.

 

            It should be noted that the Ritva also distinguishes between sukka and etrog, explicitly stating that while, according to Rabbi Eliezer, both a borrowed sukka and a borrowed etrog are unfit, regarding jointly-owned property there is a difference between them. This, however, does not follow from a difference regarding the law of "yours" between etrog and sukka, but from a circumstantial difference between the two cases:

 

It seems that Rabbi Eliezer agrees about a jointly-owned sukka, that a person can fulfill his obligation with it. For it is not the same as lulav, for there when one of them comes to fulfill his obligation with it, he must fulfill his obligation with the entire lulav. He cannot avoid fulfilling his obligation with his partner's share, and that is borrowed property. For since he is using the entire article, we cannot invoke bereira [retroactive designation], for certainly it is not entirely his. And similarly, if someone uses an entire courtyard [which he jointly owns], it is forbidden if he forbade benefit [from his partner] by way of vow, unless they stipulated prior to the vow that one person would use it Sunday-Tuesday, and the other would use it Wednesday-Friday, or the like. But here [regarding sukka], each one enters what belongs to him, and there is bereira. As it is stated in Nedarim (45b), that partners who forbade benefit from each other are each permitted to enter [a jointly-owned] courtyard. For he can say: I am entering into my own property, and not into your property. And even according to the authority who forbids this there, oaths are different… But regarding the mitzva of sukka, where he enters what belongs to him, it is called "yours." And that which the Sages said: This teaches that all of Israel are fit to dwell in one sukka – if we are talking about a single structure that is jointly-owned, then all agree to this, even Rabbi Eliezer. Rather, it means that everyone can fulfill his obligation in a sukka belonging to one person, one after the other, and it is about this that Rabbi Eliezer disagrees.

 

            As stated above, the Tosafot understand that according to Rabbi Eliezer, a jointly-owned sukka is disqualified. This leads them to the following question:

 

There is a question. For, according to Rabbi Eliezer, who requires a sukka that is "yours," how is it that two people can ever fulfill their obligation in one sukka? Each member of the household should require his own sukka!

 

            The Tosafot answer that the principle of "'You shall dwell' – similar to [normal] residence" gives rise to the leniency that it is possible to sit together in a jointly-owned sukka. As for the scope of this leniency, there are variant readings. The printed Tosafot reads: "Perhaps the verse 'You shall dwell' – similar to [normal] residence – comes to include (partners) that they can sit together in one sukka." The Maharsha accepts the word "partners," thus understanding that in the end even Rabbi Eliezer allows a  jointly-owned sukka. The Maharshal, however, erases this word, and understands that we are dealing with a special law that allows family members to sit together in one sukka. This is stated explicitly by the Ritva, who before he retracted his position (in the aforementioned passage), agreed with the Tosafot, writing:

 

There is a question, then, according to Rabbi Eliezer, that each member of the household who is under obligation should require his own sukka, so that even a person and his adult children would not be able to fulfill their obligation in one sukka. How is this possible? Perhaps, we can say that Rabbi Eliezer maintains that a man and his household fulfill their obligation in one sukka. As it is written: "You shall dwell" – similar to [normal] residence. Just as in one's residence – a man and his household, so too in one's sukka – a man and his household together.

 

Thus far, we have assumed that a jointly-owned sukka is certainly no worse than a borrowed sukka. We dealt with the question whether it is better than a borrowed sukka, so that according to Rabbi Eliezer, or according to our initial understanding of the position of the Sages, it could be argued that a borrowed sukka is unfit, but a jointly-owned sukka is fit. There are those, however, who raise the reverse possibility, according to which a jointly-owned sukka is worse than a borrowed sukka, and suggest that even according to the Sages who rule that a borrowed sukka is fit, a jointly-owned sukka is unfit. The Rivash cites such a position at the beginning of the aforementioned responsum in the name of some of his colleagues, who wished to understand in that manner the views of Rashi, the Tosafot, and the Ran. While the Rivash himself rejects this position, the Rashbash (son of the Tashbetz) in his responsa (no. 8), accepts it. He understands that if another person enjoys ownership over half the article, and he does not transfer that ownership to you so that you can use the article at the present time, then even if you can use the article part of the time, this is merely a realization of your partial ownership of the article, and not absolute ownership of that article at that time. The Rivash writes as follows:

 

Some of my colleagues maintain that a person cannot fulfill his obligation in a jointly-owned sukka. This is implied by the wording of Rashi, of blessed memory, who writes that the verse does not imply a jointly-owned sukka, for a person cannot fulfill his obligation with it, i.e., it is disqualified. According to them, a borrowed sukka, which for the duration of the loan is regarded as his, is better than a jointly-owned sukka, in which a person has nothing in his partner's share, not by way of borrowing, or any other way. According to those who maintain this position, there is something that is not borrowed or stolen, this being something that is jointly-owned. And the Tosafot responded and said that there was no need to prove that a jointly-owned sukka is disqualified, because we are not at all dealing with a jointly-owned sukka. For since both a jointly-owned sukka and a borrowed sukka are excluded by the word "your," when the words "all those that are home born" come to include, it is better to include a borrowed sukka than a jointly-owned sukka. For a borrowed sukka is his throughout the duration of the loan, whereas a jointly-owned sukka is not entirely his. And the Ran, of blessed memory, affirmed Rashi's explanation. For it is possible to reverse this argument and say, that with a borrowed sukka a person can fulfill his obligation, whereas with a jointly-owned sukka he can fulfill it, as we find regarding a tallit. Therefore, Rashi, of blessed memory, had to say that Scripture proves that it comes to include only a borrowed sukka, and the verse, "You shall observe for yourself," is left to exclude a stolen or jointly-owned sukka, because they were not included by "All those that are home-born."

 

            And the Rashbash writes:

 

We have learned from the words of our Rabbis, of blessed memory, the Tosafot and the Ran, as I understood from them, that they maintain that a jointly-owned sukka is unfit. And I heard that the Rivash, of blessed memory, rules that it is fit by way a kal va-chomer argument, for if a borrowed sukka which is not his is fit, then all the more so, a jointly-owned sukka of which he owns a part. And even though we do not raise objections against the lion after his death, this is Torah and we must understand it. This kal va-chomer argument is invalid, for a borrowed sukka is entirely his for the duration of the loan, which is not the case regarding a jointly-owned sukka, which is not entirely his, so that in the place where he is sitting, his partner also has a part. And furthermore, regarding a borrowed sukka, [the lender] is not particular, whereas regarding a jointly-owned sukka, we only disqualify in a case where they are particular about each other, for if in a case of waiver, there is no disagreement that the sukka is fit. For even regarding one who is forbidden to derive benefit from his fellow on account of a vow, there is an opinion that in the case of waiver it is permitted, as is stated in the first chapter of Megila and in Nedarim, chapter Ein ben. And even according to the opinion that it is forbidden, that is only in the case of vows, because he derives benefit from him. And furthermore, we maintain in Yom Tov, in the first and last chapters, that regarding Torah laws, there is no bereira…

 

            What advantage do the proponents of this position see in a borrowed sukka over a jointly-owned sukka? The Rashbash's second explanation, that is based on the fact that the lender is not particular, in contrast to a partner who is particular, is not entirely clear. Surely, each partner is permitted to use the shared property, just as a borrower is permitted to use the [borrowed] property. His first explanation appears also in Responsa Rivash: "Better is a borrowed sukka, which for the duration of the loan is regarded as his." And in the words of the Rashbash: "A borrowed sukka is entirely his for the duration of the loan." They appear to be saying that while a partner is permitted to used the jointly-owned property, this is not regarded as use of property that is his. This stands in contrast to a borrower, who enjoys a certain degree of proprietary rights in the borrowed property for the duration of the loan.

 

This last point is connected to basic principles governing the law of a borrower, which are not our concern at the present time. But we are also dealing here with an important novelty regarding the matter at hand. The Sages maintain that a stolen sukka is unfit, whereas a borrowed sukka is fit. This would seem to imply that according to the Sages, there is no requirement of ownership with regard to sukka, but rather there is a localized problem with a stolen sukka, which follows from its status as stolen and not from an absence of ownership. The Rashbash and the colleagues of the Rivash clear did not understand the matter in this manner, for according to them, there is a sukka that is not stolen, which even the Sages say is unfit because it does not meet the required standard of ownership, but a borrowed sukka is fit because it meets that standard through the proprietary rights that the borrower enjoys in the borrowed property. In other words, the Sages agree in principle with Rabbi Eliezer that sukka requires ownership, the dispute being limited to the question of the level of ownership that is required. Is full ownership necessary, as in the case of lulav on the first day of Sukkot, or does the partial ownership of a borrower suffice? [It may be suggested that this dispute depends on how we understand the requirement of ownership in sukka, whether it is a law relating to the fitness of the cheftza of the sukka, similar to etrog, in which case full ownership is necessary, or it is a law related to the act of dwelling in a sukka, in which case ownership of the use of the sukka should suffice.]

 

This understanding of the position of the Sages can be connected to various other discussions regarding a stolen sukka, e.g., a sukka constructed on the public domain (see Sukka 31a, and Mishna Berura 667, no. 10), a sukka that is hefker (see Arukh Le-Ner on our passage), and others, but we will not expand upon them here. Let us merely point out that this approach clearly emerges from the words of a number of Acharonim, without any connection to the position of the Rashbash which is the subject of controversy. Thus, for example, the Or Same'ach uses this idea to explain why a sukka stolen from a non-Jew is unfit, according to those who maintain that stealing from a non-Jew is permitted:

 

Because it is not "yours," and it is not similar to a borrowed sukka, in which the borrower enjoys temporary proprietary rights. And the proof is that when a person borrows an article for a certain period of time, and he comes to return the article to its owner during that period, the owner must surely reacquire the article by way of a kinyan. (Or Same'ach 5:25).

 

            This is also the simple understanding of the derivations of the Sages, for they too accept the teaching: "The feast of booths shall you observe for yourself" – belonging to you," only they have another derivation which teaches that a borrowed sukka is fit. Thus, the disqualification of a stolen sukka remains in place, and the implication is that such a sukka is disqualified because of a lack of ownership of the sukka. This is implied by Rashi: "To the exclusion of a stolen sukka – for we require 'you shall observe of yourself' – belonging to you." (9a, s.v. limuti). This idea is stated explicitly in Shulchan Arukh de-Rav:

 

Even though the Torah states: "The feast of booths shall you observe for yourself" – belonging to you, that is to say, the sukka must belong to you, and not to another person, nevertheless a person fulfills his obligation with a borrowed sukka. For since he enters it with permission, it is as if it were his. "For yourself" comes only to exclude a stolen sukka, as will be explained. And so too a person fulfills his obligation with a sukka that he jointly owns with another person, even if he enters it without that other person's permission. This is not called stolen, for it was with this in mind that they entered into the partnership, that each of them would be able to use it as he desires. (Shulchan Arukh de-Rav 637:3)

 

            We must, however, note a great difficulty with this position from the passage on p. 31a mentioned at the beginning of this shiur. The Gemara states there one who seizes his fellow and forces him out of his sukka, fulfills his obligation in his sukka, according to the Sages, because land cannot be stolen, and the sukka is treated as a borrowed sukka. If we understand that a borrowed sukka is fit because the borrower enjoys a certain level of proprietary rights during the period of the loan, it is very difficult to understand how this level is achieved in the case of stolen property. For even if the land cannot be stolen, it seems clear that the forceful usurper has no rights to it. I have not been able to find a persuasive answer to this question, and I would be grateful to anyone who could respond with a suggestion.

 

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            In our next shiur, we shall deal with another topic discussed by the Rishonim and the Acharonim regarding a stolen sukka, namely, the relationship between this issue and the issue of a mitzva achieved through a transgression (mitzva ha-ba'a be-aveira). In addition to our passage, please see p. 29b, at the beginning of the Mishna, and in the Gemara until: "mitzva ha-ba'a be-aveira. See also the following sources:

 

            - Tosafot 9a, s.v. ha-hu, "… ela mi-de-rabbanan."

            - Ramban, Pesachim 35a, "nir'e li de-yotz'in… aval lo be-tevel, ve-nomar mishum mitzva ha-ba'a be-aveira."

            - Ritva, Sukka 9a, "Ha de-amrinan ha-huika mishum mitzva ha-ba'a be-aveira"; [31a, s.v. Tanu rabbanan].

            - Minchat Chinukh, 325, the following (fundamental) passage:

 

There are two kinds of positive precepts: One that is an obligation falling on the head of every man of Israel like tefilin, etrog, and the eating of matza. Such a mitzva – if a person fulfills it, he does the will of the Creator, because this is what the King decreed. And if he neglects the mitzva and fails to don tefilin or take a lulav, he nullifies the mitzva and acts in opposition to His will, and he will surely be punished. And there are mitzvot that one is not obligated to perform, like tzitzit, for the Torah did not obligate a person to wear a four-cornered garment, and if he so desires, he may go about without a four-cornered garment, and this is not against the will of the Creator. If, however, he brings himself to obligation, intentionally wearing a four-cornered garment in order to fulfill the mitzva of tzitzit, this is the good and righteous path. The rule is that if he fulfills this mitzva, he does the will of the Creator, but if he fails to fulfill the mitzva, he does not violate His will, but merely does not fulfill the mitzva.

So too, regarding this mitzva, namely, sukka, there are two parts to the mitzva. That is to say, on the first night of Sukkot, there is a positive precept to eat the measure of an olive in a sukka, and a person is obligated to look for a sukka, and it does not help that he does not want to eat, because he is obligated to eat, as with matza or tefilin. And if he fails to fulfill the positive precept on the first night, he acts against God's will. But on the rest of the nights and days, if he does not want [to eat], he may abstain from eating and not sit in a sukka, and he is bound by no obligation, as with tzitzit. If, however, he eats, there is a positive precept to eat in a sukka and he fulfills His will, but if he does not eat, there is no obligation to do so. And also regarding these two mitzvot, there is a case where he nullifies the mitzva and acts against His will, like one who fails to don tefilin. For example, if he wears a four-cornered garment without outfitting it with tzitzit, then he violates the mitzva. And so too if he eats a regular meal outside the sukka, he violates the mitzva. The rule is that if a person performs a mitzva, he fulfills the mitzva in all cases, and does His will. And there is a case where he fails to perform a mitzva and thus violates His will, e.g., where he wears a four-cornered garment [without tzitzit] or eats a regular meal outside the sukka. And there is a case where he fails to perform a mitzva, but also does not violate [anything], e.g. where he does not wear the garment or does not eat anything. This is evident.

Regarding a mitzva that is achieved through a transgression, that one does not fulfill his obligation, it seems that the reason is that the Holy One does not want, and it is not favorable before Him, that the defender should become a prosecutor, "for I the Lord hate robbery with burnt offerings" (Yeshayahu 61:8); see Ran, chap. Lulav ha-gazul (14a in Alfasi). Now because of this it is pertinent to say that he does not fulfill the mitzva, because this is not the will of the Creator, and so he has not fulfilled the mitzva. Now this applies to an obligatory mitzva, since he did not fulfill his obligation regarding the mitzva, thus he did not do the mitzva and he nullified the mitzva, for the one depends on the other, as we have explained. But regarding mitzvot that are not obligatory, like tzitzit or sukka on the rest of the days of the festival, if they are achieved through a transgression – while it is true that he did not fulfill the will of the Creator, because this is not His will, but nevertheless he did not nullify a mitzva, but merely failed to fulfill it, and he is like one who is not wearing a [four-cornered] garment, or not eating at all, who does not fulfill the mitzva. Here too, while he has not fulfilled the mitzva, because this is not favorable before Him, but nevertheless he has not nullified it, and we cannot treat him as one who has eaten outside the sukka or has worn a garment without tzitzit. He is merely like one who does not do the mitzva at all, and goes without a garment or doesn't eat at all, for in truth he is wearing tzitzit and eating in a sukka, it is just that it is not favorable before Him, so it is as if he has not fulfilled the mitzva. But we cannot treat him as if he nullified the mitzva, since he performed the mitzva. Contemplate this and you will understand. There is also a practical ramification, for if he does not want to eat in a sukka, and he eats outside a sukka, or he wears a four-cornered garment and does not want to cast tzitzit on it, we compel him to do so until his soul departs, as in the case of all positive precepts. But in our case, where he is regarded like one who is not wearing a garment, or is not eating, therefore we do not compel him if he wishes to eat in such a sukka, since he is not nullifying the mitzva.

This is true if we say that [the disqualification of a stolen sukka] is because of a mitzva that is achieved through a transgression. But if the Torah explicitly disqualified a stolen sukka, it is as if he used disqualified sekhakh that does not grow from the ground or contracts ritual impurity, which is not a sukka at all. And if he eats there it is as if he is eating in his house, for the Torah decreed that this is not at all a sukka. Therefore, if it is because of a mitzva achieved through a transgression, then even though if he sat in such a sukka on the holiday he did not fulfill the mitzva, he also did not nullify the mitzva. But now that the Torah revealed that a stolen sukka is disqualified, it is as if he nullified a positive precept, as if he were eating in his house. Therefore, the Torah wrote "yours", to exclude that which is stolen regarding a sukka and regarding tzitzit. Thus it seems to me. The rule regarding a mitzva achieved through a transgression is that the mitzva is a mitzva, only it is achieved through a transgression. Thus, the sukka is a sukka, and it is only that it is not regarded favorably, but nevertheless he is not sitting outside a sukka, and he is not nullifying a mitzva. But that which the Torah disqualified is not a mitzva at all, and he transgresses by sitting outside the sukka.

 

(Translated by David Strauss)