YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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TALMUDIC METHODOLOGY
By Rav Moshe Taragin

Shiur #19: Mitzva Ha-ba'a Ba-aveira

One of the more fascinating phenomena in halakha is a situation in which a mitzva and aveira intersect.  One such instance is a situation in which a mitzva can be performed only through the violation of an aveira.  In this case, we apply the rule of "asei docheh lo ta'aseh" (the mitzva obligation overrides the prohibition), assuming the presence of SEVERAL conditions, including that no alternative means of performing the mitzva exists.  Another instance involves the Rabanan's ability to suspend a mitzva out of concern that its performance may cause the violation of an aveira.  For example, Chazal decreed that we may not take lulav on Sukkot which coincides with Shabbat since one might carry the lulav to an authority to confirm its validity.  This shiur will discuss a third case of interaction: mitzva ha-ba'a ba-aveira, a situation in which a mitzva has been actualized via the performance of an aveira.

	Only twice does the gemara mention this term.  In Masekhet Sukka (30a), the Gemara applies mitzva ha-ba'a ba-aveira to both a stolen lulav as well as a stolen korban.  Secondly, the gemara in Masekhet Berakhot (47b) invokes this principle in questioning Rabban Gamliel's having liberated his slave (normally a forbidden act) in order to include him as part of a minyan for tefilla.  In both cases, the gemara disqualifies a mitzva performed through the violation of an aveira.  In Berakhot, however, the gemara justifies Rabban Gamliel's freeing of his slave, claiming that with regard to a "mitzva de-rabbim" (a communal mitzva), the disqualification of "mitzva ha-ba'a ba-aveira" does not apply. 

	There is some debate among the Rishonim as to whether the principle is even accepted as normative halakha.  In fact, the gemara in Sukka (ibid.) cites a debate between Rabbi Yochanan and Rabbi Yitzchak bar Nachmeini which might surround the very acceptance of this principle. Even if we do accept the principle (as most Rishonim do), it is unclear whether this disqualification is de-oraita or de-rabbanan.  Tosafot in Sukka (9a), as well as the Ramban in Pesachim, rule that the principle is only de-rabbanan in nature.  Indeed, the gemara (Sukka 30a) cites a pasuk from Malakhi and another from Yeshayahu as the source of this halakha, but fails to produce a pasuk from the Torah that introduces the issur.  By contrast, the Ritva in Sukka (31a) claims that the halakha is mi-deoraita, and in fact several gemarot (Sukka 9a, Bava Kama 66b) cite pesukim which might be construed as sources for mitzva ha-ba'a ba-aveira.

	An interesting Yerushalmi (Shabbat 13:3) draws an important distinction which might possibly reflect the nature of this disqualification.  The Yerushalmi invalidates matza gezula (stolen matza) for use in fulfillment of the mitzva, presumably out of concern for mitzva ha-ba'a ba-aveira.  Yet, the Gemara notes, someone who tears keriya on Shabbat for a deceased relative has fulfilled the mitzva of keriya despite his having violated Shabbat by rending the garment.  The gemara reconciles these seemingly conflicting halakhot by claiming that whereas matza constitutes the "cheftza shel mitzva," the actual 'object' of the mitzva, the garment with which the aveira was performed is not the item or object of the mitzva.  

By distinguishing in this manner, the Yerushalmi asserts the nature of the mitzva ha-ba'a ba-aveira principle: an object of a mitzva cannot also be an object of an aveira.  Since matza is the object of the mitzva, one cannot use matza which underwent a process of an aveira – such as gezeila (theft).  

This definition of the principle would greatly impact the scope of mitzva ha-ba'a ba-aveira.  For example, it might only apply to mitzvot which demand a particular "cheftza shel mitzva."  In the case of the Yerushalmi – the mitzva of tearing keriya for a deceased relative - no particular cheftza is demanded.  The mitzva entails only an ACTION (or "ma'aseh gavra"), which may be performed on any garment; the garment to be used thus possesses no particular criteria (as opposed to matza which must be baked in a certain manner with certain ingredients).  

Similarly, the rule might apply only if the cheftza of the mitzva is the same object with which the aveira was performed.  The Rambam (Hilkhot Shofar 1:3) rules that one may use a stolen shofar for the mitzva of shofar blowing on Rosh Hashanah since the object of the mitzva is the sound produced by the shofar, rather than the shofar itself, and sound cannot technically be stolen.  In this instance, the Rambam invokes his famous position that we define the mitzva of shofar as hearing a sound rather than blowing an instrument.  Consequently, we view the sound, not the physical shofar, as the essential "cheftza shel mitzva." Since only the shofar itself was stolen, while the sound it produces was not, the "cheftza shel mitzva" did not undergo a process of aveira, and the shofar may be blown for the mitzva.  

This focus on the "cheftza shel mitzva" might determine which types of aveirot could undermine a given mitzva through the principle of mitzva ha-ba'a ba-aveira.  The gemara mentions the principle only in conjunction with the sin of theft.  In this scenario, the item clearly underwent a process of aveira.  Mitzva ha-ba'a ba-aveira then dictates that an item which 'experienced' an aveira cannot then serve for a mitzva.  Would the same apply to other types of aveirot?  The Rambam (in his commentary to the first Mishna in Sukka) claims that a lulav that had been worshipped as an avoda zara is invalid for use as a mitzva based on the concept of mitzva ha-ba'a ba-aveira.  In this instance, as well, the item can be deemed a "cheftza shel aveira" – an item which underwent a process of aveira – since it was worshipped.  Conceivably, we might differentiate between a stolen item and one which was worshipped.  In the former instance, since a residual obligation to return the item still applies, the item still reflects, and is affected by, the original aveira.  In the case of avoda zara, however, though the item was involved in an aveira, the original action has completely terminated and we should perhaps no longer deem the item a "cheftza shel aveira."  This distinction would be reminiscent of the Yerushalmi's final example.  What would happen if a person were to carry matza on Shabbat?  Could he then eat that matza to perform his mitzva?  The Yerushalmi claims that he may, since the object of the mitzva had not undergone a process of aveira.  The aveira of carrying on Shabbat terminates once the actual relocation concludes.  Since no remnant of the aveira exists, we cannot deem the transported object a "cheftza shel aveira."  Indeed, the gemara in Sukka (31b) disqualifies a lulav of avoda zara based on a different logic, seemingly denying the application of the mitzva ha-ba'a ba-aveira principle to such a case.  The Rambam, however, did implement the mitzva ha-ba'a ba-aveira concept in the case of lulav of avoda zara.

A slightly different perspective on mitzva ha-ba'a ba-aveira can be gleaned from the statements of the Ra'avad regarding an etrog of avoda zara.  He claims that the other three minim (lulav, hadassim, aravot) are not disqualified for mitzva use on the basis of mitzva ha-ba'a ba-aveira if they originated from avoda zara trees.  An etrog, however, may not be used if it had been picked from a tree used for idolatry.  The Ra'avad explains that given the strength and appeal of the etrog's aroma, one will inevitably smell the etrog while performing the mitzva.  Since he will have thus committed a violation DURING the actual performance of the mitzva, mitzva ha-ba'a ba-aveira will apply.  According to the Ra'avad, then, mitzva ha-ba'a ba-aveira establishes a halakhic deficiency not in the object of the mitzva, but rather in the act of the mitzva.  If this act coincides with the performance of an aveira, the act of the mitzva itself is rendered invalid.  In the instance of gezeila, evidently, by performing the mitzva instead of returning the item to its rightful owner, the thief extends the act of gezeila and thereby commits an aveira during the act of the mitzva.  By taking an etrog of avoda zara (and smelling the prohibited etrog during the mitzva act), the individual violates an aveira (of deriving benefit from avoda zara) during the execution of the mitzva and thereby ruins the mitzva.  Conceivably, this form of mitzva ha-ba'a ba-aveira would have much broader application than the previous version.  Namely, any aveira performed during the execution of any mitzva would presumably invalidate that mitzva.  Thus, for example, the Rambam's halakha validating a stolen shofar would not apply.  Even though the 'object' of the mitzva – the sound - is not stolen, one cannot deny that by blowing the shofar one extends the original aveira of gezeila.  As such, the performance of the mitzva is tainted and, at least theoretically, mitzva ha-ba'a ba-aveira should apply.  (In truth, the Rambam's position on mitzva ha-ba'a ba-aveira in the case of shofar is far more complicated, but the details of his stance lie beyond the scope of this shiur).