31a: Acquiring Stolen Objects (2)
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Last week, our gemara tackled the issue of using hadasim grown on land that may have been stolen. In the course of that discussion, we learned some of the circumstances in which stolen goods are removed from the jurisdiction of the previous owner, which allows for the possibility of their acquisition by someone else. The gemara we will learn today continues that discussion and applies it to the issue of stolen sukkot.
We begin with the second word on the second line of 31a.
The Rabbis taught: A stolen sukka and one who places sekhakh in a public domain -
R. Eliezer invalidates and the Sages validate.
Rav Nachman said: the disagreement is regarding one who forcibly removed his fellow from his sukka,
and R. Eliezer is (consistent) with his reason, for he said: One cannot fulfill his obligation in his fellow'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 are (consistent) with their reason, for they said: One fulfills his obligation in his friend's sukka
and land cannot be stolen, and it is a borrowed sukka.
But if he stole wood and used it for sekhakh - the words of everyone (=everyone agrees) he has nothing but the value of wood.
From where (do we know this)?
From that which is taught, similar to a public domain,
Just as the public domain is not his land - the sukka also is not his land.
ת"ר (=תנו רבנן): סוכה גזולה, והמסכך ברשות הרבים -
רבי אליעזר פוסל, וחכמים מכשירין.
אמר רב נחמן: מחלוקת בשתוקף את חבירו והוציאו מסוכתו
ורבי אליעזר לטעמיה, דאמר: אין אדם יוצא ידי חובתו בסוכתו של חבירו.
אי קרקע נגזלת - סוכה גזולה היא. ואי נמי קרקע אינה נגזלת - סוכה שאולה היא.
ורבנן לטעמייהו, דאמרי: אדם יוצא ידי חובתו בסוכתו של חבירו.
וקרקע אינה נגזלת, וסוכה שאולה היא.
אבל גזל עצים וסיכך בהן - דברי הכל אין לו אלא דמי עצים.
מדקתני דומיא דרשות הרבים,
מה רשות הרבים קרקע לאו דידיה הוא - סוכה נמי לאו קרקע דידיה הוא.
The gemara begins with a baraita that reports a disagreement between R. Eliezer and the Sages regarding a "stolen sukka" and a sukka constructed in a public domain. Rav Nachman qualifies the machloket - the Sages do not permit a stolen sukka across the board. In fact, earlier this year we learned the gemara on 27b that derives from a pasuk that stolen sukkot are invalid! Rather, the disagreement is about a specific case - where a person came and forced his fellow to abandon his sukka, and then wanted to use it for himself. R. Eliezer holds (as the gemara on 27b taught) that one cannot fulfill the mitzva of sukka in a borrowed sukka. One must own the sukka one uses for the mitzva. Therefore, no matter how we view the situation, the strongman will not be able to fulfill his mitzva in this sukka. We mentioned last week that land cannot be stolen. Halakha simply does not recognize that any significant change has taken place, and the land is still considered to be the property of the original owner. Although this rule is accepted le-halakha, it is not unanimous. The gemara here considers both possible positions on the matter. But, since R. Eliezer invalidates both a stolen sukka and a borrowed one, it makes no difference. If land cannot be stolen - and since the sukka is connected to the land, it is considered part of the land - this sukka should be considered "borrowed" from its original owner, albeit without the owner’s consent. If land is considered "stolen," this has the status of a "stolen sukka." Either way, the sukka is invalid.
The Sages, Rav Nachman explains, disagree because they assert that one can fulfill one's obligation with a borrowed sukka. They also affirm that land cannot be stolen. Therefore, this is considered to be a borrowed sukka, with which one can fulfill the mitzva of sukka. It turns out that the machloket between R. Eliezer and the Sages, framed in the baraita as a disagreement over stolen sukkot, actually turns out to be a machloket about borrowed sukkot. It is called "stolen sukka" in the baraita only because that is how people think of it, due to the fact that the true owner has been evicted.
Rav Nachman goes on to contrast this case of one who forcibly removes another from his sukka with a different case - if one were to steal wood and use it as sekhakh for his sukka. (Sekhakh is the roof of the sukka. It must be made from materials that grow from the ground and meet certain other criteria.) In this instance, everyone agrees that the original owner "has nothing but the value of wood." This means that the actual wood itself has been acquired by the thief. He need not return the wood to its original owner. The victim can demand reimbursement but nothing more. Because the thief is now the legal owner of the wood, the sukka he built with it is not considered a stolen sukka or a borrowed sukka. He is the legal owner of this sukka, and can therefore use it to fulfill his mitzva according to all opinions.
At this point, we should take a moment to consider why stolen wood that is used for sekhakh is acquired by the thief. Let's check Rashi (s.v. aval gazal eitzim ve-sikekh bahem).
But if he stole wood and used it for sekhakh - this is not stolen and not borrowed, for he has acquired it through physical change (shinui ma'aseh) and change of name (shinui ha-shem). And also, because of the "enactment of those returning" (takanat ha-shavim), he need not take down his building. Rather, he shall return the money.
Rashi here applies two concepts that we discussed last week, and introduces a third that is new to our shiur. We discussed last week that if a thief effects a physical change in the object that he stole (shinui ma'aseh), he acquires the object. Although he must still compensate his victim, he need not return the particular object that he stole. This is apparently because the object he stole no longer exists - its identity has been changed by the physical alterations it has undergone. The same may be true of a change that leads to a new way of referring to the object. Shinui ha-shem may be required in addition to the physical change. When our thief uses the wood he stole to construct a sukka, he thereby changes it from a regular piece of wood to a section of "sukka," thus changing its name and its physical appearance. This change brings about his acquisition of the wood.
Tosafot (s.v. aval) object to Rashi's explanation. Although this would thematically connect our section of gemara with the preceding section, we must consider another piece of information we discussed last week - that a reversible change is not considered to be a shinui ma'aseh. Since Rav Nachman brings up a case in which the wood was used for sekhakh, it is quite likely that the physical change effected in the wood is not permanent. The sekhakh is simply placed on top of the sukka. It can thus be easily removed, making the rules of shinui not applicable!
Therefore, Tosafot prefer Rashi's other explanation - that the thief need not return the actual wood because of the institution of takanat ha-shavim. According to Torah law, one who steals must return what he has stolen. At times, this demand can become a tremendous burden. Consider for example a case in which one steals some building materials and uses in the construction of his home. If shinui ma'aseh is not applicable for some reason, the thief would have to accept a huge financial loss as he took apart his home to return a few nuts and bolts! The Rabbis noticed that there were robbers who wanted to do teshuva but were not able to bring themselves to accept the financial hit that returning all the items they stole would entail. Thus, they decreed that in cases like the one mentioned above, the thief may compensate his victim monetarily instead of returning the actual object he stole. (There are other cases of takanat ha-shavim, but this will suffice for now.) Our case falls under that category. Since the wood has been built into the sukka, the thief is not required to de-construct his whole sukka in order to return what he stole.
Now that we understand the difference between the cases of forcibly removing someone from his sukka and stealing wood to use as sekhakh, let's get back to the gemara. Having concluded Rav Nachman's presentation of the machloket in our baraita, the gemara challenges his opinion based on the wording of the baraita. "From where" do we know that the machloket between R. Eliezer and the Sages is actually a machloket about the validity of borrowed sukkot? After all, the baraita presents the disagreement as pertaining directly to stolen sukkot!
The gemara responds by pointing to the grouping of the two halachot mentioned in the baraita. In addition to the case of a "stolen sukka," the baraita also reported that R. Eliezer and the Sages argue about a sukka constructed in the public domain. The gemara argues that the two cases are grouped together because the crux of the disagreement is identical in both cases. R. Eliezer disqualifies a sukka in a public domain because the land is not his. Similarly, the case of the "stolen sukka" is one in which the pesul is due to the fact that the land is not his.
The gemara has now addressed the case of forcibly removing someone from his sukka and the case of stealing wood and using it as sekhakh. Neither of these cases seems to be one in which the rule that a stolen sukka is invalid (gemara 27b) applies. Can you think of a case in which that rule would apply?
Consider the reasons why the cases of our gemara do not fall under that category - and check Rashi (from where we left off in s.v. aval gazal eitzim ve-sikekh bahem)!
As mentioned above, the reason that the case of forcibly removing someone from his sukka in order to use it for oneself is not considered a case of a stolen sukka is because we consider the sukka, which is connected to the land, to be part of the land. Additionally, we accept the view that karka eina nigzelet. Thus, the sukka is not considered to be stolen but rather borrowed. The case of stealing wood and using it as sekhakh is not a case of a stolen sukka because the wood is subsumed in the greater whole of the sukka. Therefore, even the wood that was stolen is acquired by the thief, due to takanat ha-shavim. If we are to find a case of a stolen sukka, it must be one in which the entire sukka is stolen, but the rule of karka eina nigzelet does not apply. Rashi comes up with such a case - a sukka that is not really attached to the ground, such as one built on a wagon or a boat. Modern equivalents would be a sukka built on a car or truck (like Chabad sukka-mobiles). The rule that "land is not stolen" does not apply because this sukka is not attached to the ground. And takanat ha-shavim is not applicable because the sukka has not been built into some greater structure. Such a sukka would be invalid as a "stolen sukka."
Let's go on in the gemara. We are up to the second word of the 15th line of 31a.
There was an old woman who came before Rav Nachman.
She said to him: the Exilarch and all the rabbis of the Exilarch's house are sitting in a stolen sukka!
She yelled and Rav Nachman did not heed her.
She said to him: A woman whose father had three hundred and eighteen servants is yelling before you and you do not heed her?
Rav Nachman said to them: This is a quarrelsome woman, and she has only the value of the wood.
ההיא סבתא דאתאי לקמיה דרב נחמן.
אמרה ליה: ריש גלותא וכולהו רבנן דבי ריש גלותא בסוכה גזולה הוו יתבי!
צווחה ולא אשגח בה רב נחמן.
אמרה ליה: איתתא דהוה ליה לאבוהא תלת מאה ותמני סרי עבדי צווחא קמייכו ולא אשגחיתו בה?
אמר להו רב נחמן: פעיתא היא דא, ואין לה אלא דמי עצים בלבד.
The gemara here relates an incident in which Rav Nachman applied the ruling quoted above in his name. An old woman came to Rav Nachman and complained that the Exilarch and his entourage were using a stolen sukka. [In Talmudic times, the Babylonian Jewish community enjoyed a certain degree of autonomy. The Exilarch was the head of the semi-autonomous Jewish community.] Rashi fills in the detail that is implicit in the story - the woman claimed that servants of the Exilarch had stolen wood from her, which they then used to construct the Exilarch's sukka.
The woman screamed and yelled, but Rav Nachman took no heed of her. Finally, she said: "A woman whose father had 318 servants is yelling and you pay no heed?" Apparently, the woman came from a wealthy family and was insulted that Rav Nachman did not afford her more respect. Alternatively, Rashi explains that the father with 318 servants is a reference to the Patriarch Avraham (see Bereshit ). According to this explanation, the woman demanded that Rav Nachman listen to her simply because she was Jewish.
Finally, Rav Nachman responded, though not directly to the woman. He explained to his students that even if the woman's claims were substantiated, the sukka would still be acceptable. As we explained earlier, takanat ha-shavim would apply since the wood had been built into a structure. While the Exilarch would need to reimburse the woman for her loss, he would not have to return the actual wood. He is considered the owner of the wood, and the sukka is not a "stolen sukka."