The gemara (Temurah 4) has a machlokes Abaye and Rava whether ee avid lo mehanei -- if a person does an action that would normally produce a certain halachic outcome, but that action was done b’issur, is the resultant outcome produced? Yesterday we discussed the issur of lo tachmod, which according to the Rambam is violated not just if you seize a neighbor’s property which you covet, but even if you talk your neighbor into selling the item. The Magid Mishne asks why a sale done in this circumstance is valid. Since the buyer is in violation of lo tachmod, why not apply the rule of ee avid lo mehanei and invalidate the sale?
M.M. answers by comparing this case to that of a thief who steals wool and makes it into a garment. Despite the issur of gezel, the halacha is that the thief is koneh the wool and pays the owner back only the value of what was stolen, not the garment. Here too, despite the issur involved in the transaction, the buyer is koneh the item. I am not clear on what the M.M. means. In the case of the stolen wool, the object has been transformed from what it once was. The same does not apply in our case.
Perhaps we can answer the M.M.’s question using the sevara of the Steipler discussed in yesterday’s post. The Steipler explained that lo tachmod is defined as a lav she'ain bo ma'aseh because what is prohibited is coveting a neighbor’s property; the act of buying or seizing that property just serves as a means through which halacha measures or recognizes that existance of desire (coveting). EE avid lo mehanei applies on ly where the act being done is the focus of the issur; in our case, the sale is just a siman, an indicator as to what lies in a person's heart.
Let's make things a little more challenging: the Torah prohibits selling land “latzmisus” – permanently. Rambam (Hil. Shemita ch 11) writes that property must be restored to its original owner during the Yovel, even if sold for perpetuity. Yet, the implication of the Rambam is that such a sale is valid – just the yovel law overrides the terms and conditions. Why is the sale valid? Here the language of the issur – “lo timacheir latzmisus” – clearly suggests that the sale itself is what is prohibited, so why not apply the rule of ee avid lo mehanei?
Can you come up with a chiluk between the din of latzmisus and lo tachmod? Can you come up with another way to answer this question of the M.M.? It's a snowy day in NY, so you may be home in your armchair (I had to trudge into work) -- now you have something to ponder while sipping the hot chocolate.