Wednesday, October 18, 2006

using stolen goods for a mitzvah - mitzvah haba'ah b'aveira (II)

Returning to the machlokes Rabeinu Tam and R"I whether a thief who now owns stolen goods because the original owner had yeiush can use them for a mitzvah, the simplest explanation of the debate is whether the problem of mitzvah haba'ah b'aveira is dependent on dinei mamomos kinyanim or is an issur v'heter issue that disqualifies the object because of its having been stolen irrespective of the thief's current dinei mamonos status as owner. In the Reshimos Shiurim (collected from the Shiurim of R' Soloveitchik) on Sukkah 30 an additional interesting hesber is offered. Rabeinu Tam as quoted in the Sefer haYashar seems to limit the disqualification of mitzvah haba'ah b'aveira specifically to lulav and korban. If mitzvah haba'ah b'aveira is a psul in the mitzvah object, why is this disqualification limited to just these two cases? The Rav therefore suggested that mitzvah haba'ah b'aveira here is not a psul in the cheftza shel mitzvah, the object per se, but a psul in the criteria of 'lachem', ownership, which the mitzvos of korban and esrog specifically mandate. Even if a thief has kinyanei gezeilah and now owns the stolen goods, this level of ownership attained via crime is insufficient to meet the criteria of lachem which the Torah demands. Based on this approach, one can also answer Tosfos’ question (Sukkah 9) on why a separate pasuk of ‘lecha’ is needed to disqualify a stolen sukkah and the rule of mitzvah haba’ah b’aveira is insufficient (see Daf Notes here). Without the extra pasuk, yeiush and other kinyanim which transfer ownership to the thief would allow him to use a stolen sukkah; however, based on the criteria of ‘lecha’, similar to lulav and korban, such a sukkah would be disqualified.

2 comments:

  1. Bill Selliger12:09 PM

    How does the explanation of RJBS fit with the gemara on top of Sukka 30a? The gemara seems to indicate that MH"B is not a p'sul in "lachem" (starting from the word "bishlama").

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  2. I'll answer your question with another question - Rashi on the Mishna 29b writes that lulav hagazul is pasul because of lachem. According to the sugya, it is pasul because of mhb'baveira and not lachem!? Ok, so maybe you can kvetch that rashi is explaining according to the hava amina... I think the answer is (I do not have the rishimos shiurim on me to check, but I seem to recall seeing this sevara elsewhere) that mhbb'aveira is a giluy milsa that lachem is a broader din that the straight gezeiras hakasuv that applies only to yom rishon.

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