tabick stolen lulav

The Stolen Lulav Jeremy Tabick

1

The Stolen Lulav: Analysis of local and global principles

Jeremy Tabick

The issue of the stolen lulav is a complex one, and one with surprisingly far-reaching moral

implications. Much of the analysis of these sources was done by Kulp and Rogoff in

Reconstructing the Talmud1 as well as numerous rishonim. The aim of this study is to go deeper

and to make more specific claims about the evolution of this principle and the text over time.

First, we will analyse the sugya in the Bavli in light of modern scholarship and comments

of the rishonim. Then we will investigate various parallels in Tannaitic and Amoraic literature

dealing with the issue of using stolen objects in rituals. In doing so, we will see that throughout

the sources, there are tensions between local issues (those with few implications in few areas of

law) and global principles (those with large implications in multiple areas of law). Various

amoraim and the setam of the Yerushalmi fall on different sides of this spectrum, but it is not

until the Bavli that these two are brought into direct conversation with each other with practical

implications.

Finally, we will use the evidence from other sources to propose an evolution of (a) the

text of our sugya in the Bavli; and (b) the principle of mitzvah ha-ba’ah ba-aveirah.

Analysis of the Bavli

The sugya of the stolen lulav, found on Bavli Sukkot 29b-30b is not an easy one, and there is

almost no part which does not require some level of clarification. This will be attempted below.

A full translation of the text can be found in the Appendix.

"It definitively teaches"

Our gemara opens by claiming that the mishnah teaches that a stolen lulav is forbidden, with no


2

qualifications, and thus on all seven days of the festival. This assertion should be questioned

since it is not logically necessary. Is it that difficult to imagine that the mishnah may be speaking

only about the first day?

It objects to this based on an allusion to a midrash. This will be investigated below.

"We require 'beautiful'"

The explanation for the dried out lulav makes sense at first glance that it would certainly last

seven days. After all, the hadar that the Torah requires, there is nothing in its logic that would

make it only apply to the first day. However, Tosafot2 points out that the word hadar is from the

same verse as the requirement lakhem, which specifically refers to the first day. Thus, it would

appear that there is no reason to assume differently from the verse itself that the requirement for

hadar would have a different duration to lakhem—both should only apply to the first day.

Tosafot also brings an answer, saying that since days two through seven are only required

for lulav rabbinically, it is not a formal requirement for hadar only the regular requirement of

hidur mitzvah, the beautification of a mitzvah. But it is clear that this does not really answer the

question since the gemara specifically says that the requirement comes from the word hadar in

the verse.

The problem is only made worse by the discussion in the Bavli (36b) and Yerushalmi

(3:6 / 53d) on the damaged or deformed etrog.3 Rabbi Ḥanina and Rabbi Naḥman bar Yitzḥak

respectively seem to understand this mishnah as referring only to day one, since they no longer

require hadar.

"A commandmand that comes through a transgression"

There are many aspects of this phrase and its attribution to Rabbi Shimon ben Yoḥai to be


3

suspicious about. Firstly, it is an abstract concept, not dealing with any realia but existing only in

the realm of concepts. As Moscovitz has shown,4 such conceptualisation is uncharacteristic of

tannaim but much more common in later eras. This can discount the attribution to Rabbi Shimon

ben Yoḥai—now we also question the attribution to Rabbi Yoḥanan.

First, Tosafot5 points out that Rabbi Yoḥanan doesn’t seem to believe in the power of

despair (yei’ush) as a category elsewhere, while he does so here.

Further, the statement includes an Aramaic phrase (de-hava leih). Tannaim and early

amoraim taught in Hebrew, while switching between languages is often a strong indication of

later editorial changes.6

Additionally, the link between the lulav and the verse from Malachi— dealing

specifically with sacrifices—is not clear.7 In what way is a lulav like a sacrifice? There is

certainly not nothing to this comparison, but at no point in the sugya is this link questioned,

despite its lack of clarity. The difficulty of linking the words of the verse itself is illustrated by

Rashi, who chooses to focus on the context of the verse instead of the verse itself.8

Finally, and ultimately fatally, the concept mitzvah ha-ba’ah ba-aveirah is so powerful

that it wipes out the need for the lakhem midrash at all. After all, why do you need a special

midrash for the first day forbidding a stolen lulav when you have a general principle forbidding

using stolen objects in the performance of a mitzvah? If this were such an early and prominent

principle, why would so many other amoraim have generated laws with this lakhem midrash as

their central operating principle?9

So where does mitzvah ha-ba’ah ba-aveirah come from if not Rabbi Yoḥanan or Rabbi

Shimon ben Yoḥai? And why was it attributed to them at the beginning of the sugya? Both of


4

these questions will be answered below.

The parable of the king

The parable of the king passing the customs house—once again depending on a verse about

sacrifices—is, in the context of the sugya, presented as an illustration of the principle of mitzvah

ha-ba’ah ba-aveirah.10 But once again, just like the previous statement of Rabbi Yoḥanan in the

name of Rabbi Shimon ben Yoḥai, the connection to the sugya does not stand close scrutiny.

For example, in the parable the king pays a tax in order to show others that no one is

exempt from taxes. What is the tax that God pays in the context of the lulav? Further, the lulav is

clearly being compared to the tax—but what are the common features that make a tax an apt

metaphor for taking a lulav on Sukkot?

Even more curious, while the parable is not a perfect fit for the topic at hand, the verse

from Isaiah 61 alone fits perfectly with the idea of mitzvah ha-ba’ah ba-aveirah. This is clearly

how Rabbeinu Ḥananel11 understands the point of this part of the sugya, since he quotes the verse

but skips the parable entirely.

Rabbi Ami

We should immediately take note of Rabbi Ami, since his reasoning appears to be identical to

that of the opening setam explanations: he explains the dried lulav as lacking hadar, and the

stolen one as being mitzvah ha-ba’ah ba-aveirah. Even the wording he uses is almost identical to

that which used above in Rabbi Yoḥanan’s statement (de-hava leih mitzvah ha-ba’ah ba-

aveirah). In this case, however, since he is an amora with no pretences to quoting a tanna, we

are not nearly as suspicious of the accuracy of this attribution.12 Below, we will show that, even

if the precise wording of Rabbi Ami’s statement has been altered, his view is not unknown for


5

amoraim living around his time, and thus we will trust the attribution here.

There is one (possible) difference between what Rabbi Ami says and what the setam

asserts at the start of the sugya: Rabbi Ami does not specify which days his ruling applies for.

Given how broad mitzvah ha-ba’ah ba-aveirah is, he could be referring to seven; on the other

hand, given that according to the verse hadar is only a requirement on day one, perhaps he is

ruling only on the first day. The implication of this alternate reading will be explored with each

of the amoraim below.

Rabbi Yitzḥak bar Naḥmani / Shmuel

With Rabbi Yitzḥak bar Naḥmani’s statement, we now have our first instance of bringing the

borrowed lulav into the discussion. This comparison between the law of the borrowed and stolen

lulav is only relevant for one who understands lakhem—mi-she-lakhem as the main operating

category, since the thing that they have in common is that they may not belong to the bearer. He

clearly buys this midrash hook, line, and sinker.

The only question is why doesn’t he hold mitzvah ha-ba’ah ba-aveirah, especially if it

was a principle from Rabbi Yoḥanan or Rabbi Shimon ben Yoḥai. Tosafot’s answer is good,13 that

Shmuel is not concerned with mitzvah ha-ba’ah ba-aveirah with rabbinic mitzvot (such as

waving a lulav after the first day). But a clearer answer would be that he does not believe that

mitzvah ha-ba’ah ba-aveirah is a statement with legal force regarding the lulav. This is yet more

evidence to question the attribution above.

Rav Naḥman bar Yitzḥak

While there is nothing in Rav Naḥman bar Yitzḥak’s statement that is unclear, we should be

careful with it given that only ha sha’ul kasher is in Hebrew while the rest is in Aramaic.14 The


6

Aramaic explanation leads us to understand him as proving that our mishnah is referring to the

latter days of the festival.

If we remove the Aramaic, what might he be saying? It is possible that Rav Naḥman bar

Yitzḥak originally meant his statement to apply only to day one. By his statement, ha sha’ul

kasher, he would be objecting to the lakhem midrash. He would be saying: “How can you say,

Shmuel, that lakhem is the only operating category here, since the mishnah implies that a

borrowed lulav is valid while a stolen one is not?”

There a clear problem with this reading, but I do not believe it is a fatal one: Mishnah

Sukkah elsewhere (3:13) specifically discusses how one gets around the prohibition of using a

borrowed lulav on the first day. There would be many ways an amora could get around this

contradiction, e.g. assigning the mishnayot to different people. More critically, I think, it’s pretty

clear that mishnah 13 operates only due to the derash of lakhem. One who rejected the derash

entirely would understand that without it this mishnah would have no basis. Further, mishnah 13

is not stated anonymously (implying maximum authority),15 but in a softer form mip’nei she-

am’ru—an amora could disagree with what “they” said and/or label them a dat yaḥid.

Additionally, he may not be claiming that he himself disagrees with the lakhem midrash, but

only that our mishnah disagrees with it. I can easily imagine this statement sparking an u-rminhi-

type argument between mishnayot 3:1 and 3:13.

Regardless of which reading is correct, Rav Naḥman bar Yitzḥak’s objection is made

against Shmuel’s position, and therefore is supporting Rabbi Ami’s.

Rava (Rav Ashi)

Apart from Masoret Ha-Shas’ problem that it should be amar Rava instead of Rava amar, the


7

manuscripts have Rav Ashi here, so does the Rosh16 and Rabbeinu Ḥananel17 (among others). It

is clear that Rava is a printer’s error.

Here again we should distinguish based on language between the statement of Rav Ashi

and the explanation of the setam.18 With the explanation, Rav Ashi is rejecting the details of Rav

Naḥman bar Yitzḥak’s objection—disagreeing with only how he read our mishnah—while

upholding the substance of the objection. Thus, Rav Ashi too supports Rabbi Ami.

However, continuing our hypothetical reading of the text with no setam explanation, Rav

Ashi may be making the opposite point. Rav Naḥman bar Yitzḥak claimed that perhaps our

mishnah does not agree with the lakhem midrash, since it implies a borrowed lulav is valid.

Based on that, Rav Ashi, when he says le-olam yom tov rishon, he is saying that the mishnah

certainly is based on this midrash, it’s just that a borrowed lulav was so obvious that it wasn’t

necessary to state it—apart from anything else, it is attested later in the chapter. On this reading,

Rav Ashi is actually supporting Rabbi Yitzḥak bar Naḥmani / Shmuel!

Given that I think both readings—the one proposed by the setam and the one I propose

here—are plausible, I will take both into account in the analysis going forward.

Rav Huna

Numerous problems have been raised by the rishonim on the setam’s analysis of this story.19 This

will not concern us here. The key point for our purposes is that Rav Huna seems to follow the

formalistic approach of the lakhem derash alone. He advises the avankari on a way around

having the ownership of the lulavim transfer in the hands of Jews. His advice depends explicitly

on the principles of yei’ush (despair of recovery) and shinui ma’aseh (a change in an object

consists a change of ownership). These principles are only relevant in the context of a stolen


8

lulav if the problem is a local one from the specifics of the midrash.

Other sources

To further our analysis of the sugya, we will need to turn to parallels elsewhere in Ḥazal. Kulp

and Rogoff boil down the discussion to two concepts: a local issue of lulav; and a broader issue

of using stolen objects in the performance of a mitzvah. This is essentially accurate, while

slightly oversimplified. I would like to instead split these into four elements that are combined in

the Amoraic discussion of stolen ritual objects, all of which are important to our understanding of

the sugya:

1. A local Tannaitic midrash regarding specifically lulav (lakhem—mi-she-lakhem, found

first in Sifra Emor 12:3);

2. A local question about blessing over stolen bread (Tosefta Sanhedrin 1:2, Yerushalmi

Shabbat 13:3 / 14a);

3. The expansion of the earlier category into other ritual objects and actions more broadly

(Yerushalmi Shabbat ibid.);

4. A broader, but still local, Amoraic midrash regarding lulav (senigor-katigor, Va-Yikra

Rabbah 30:6, Yerushalmi Sukkah 3:1 / 53c).

Once we have the Tannaitic and Amoraic ingredients, the question will be how the setam

of each Talmud deals with the earlier material. I will show that, while in the earlier Amoraic

sources the two local midrashim on lulav are unaffected by the more global discussion in

Yerushalmi Shabbat, in the Bavli they are combined.

"From that which is yours"

This lakhem midrash that we have discussed at length appears in the Sifra Emor 12:3:


9

“Take for yourselves (lakhem)” (Leviticus 23:40)—every one of you.“For yourselves (lakhem)” (ibid.)—from that which is yours, not a stolen one.From this they said, “A person does not fulfil his obligation on the first day of the festival of Sukkot with the lulav of his fellow” (Mishnah Sukkah 3:13). Rather, if he wishes, he should give it as a gift to his fellow and to [the fellow’s] fellow, even if they are a hundred.

As Kulp and Rogoff note,20 there is a dissonance between what the midrash says and the

following mishnah that is quoted. The midrash specifically deals with that which is stolen, while

the mishnah only deals with a borrowed lulav. This slippage that we also see in our gemara only

makes sense if the common principle is that neither lulav belongs to the one who shakes it.21

This is an extremely local issue, applying only to lulav (and the other three of the four

species), and on the first day. This is clear based on the verse, as well as the mishnah they bring

to illustrate their point. There is thus nothing in the Tannaitic halakhah that suggests a stolen

lulav would be invalid for ritual use at any time other than the first day, despite the gemara’s

claim that the mishnah is ka pasik ve-tanei.

Stolen bread

The paradigm for mitzvah ha-ba’ah ba-aveirah in Tannaitic literature is from Tosefta Sanhedrin

1:2:22

Rabbi Eliezer ben Ya’akov says: What does the verse mean when it says, “The robber (botzei’a) who blesses curses God” (Psalm 10:3)? They composed a parable.To what is the matter similar? To one who stole a sei’ah of flour. He kneaded it, baked it, took ḥallah from it, and fed it to his children. How can this one bless? He only curses. About this it is said, “The one who breaks bread (botzei’a) and blesses curses God.”

The midrash is based upon a pun in the Hebrew of botzei’a—a root meaning “obtain by

violence” in biblical Hebrew23 and “break bread” in Rabbinic Hebrew.24 The implication of the

source is that the problem is the blessing specifically, the invoking of God’s name over stolen


10

goods. One could easily see the possible application of this idea to the stolen lulav, since over

that too you are making a blessing. However, in Tannaitic literature, these remain separate ideas.

The verse also appears in a very similar midrash in Yerushalmi Shabbat, 13:3 / 14a

(attributed to Rav Hoshayah), explaining a baraita: “It is forbidden to bless on stolen matzah”.

Clearly this is an obvious application of the Tosefta’s idea from bread to matzah.

The previous section also will be instructive for us. The starting point is the mishnah that

says one who tears their garments as a sign of mourning on shabbat is not liable to bring a sin

offering.25 An anonymous question is then asked of Rabbi Yose about the connection between

this case and the case of the stolen matzah.They asked before Rabbi Yose: Did not Rabbi Yoḥanan say in the name of Rabbi Shimon ben Yehotzadak: One does not fulfil his obligation on Pesaḥ with stolen matzah?He said to them: There itself is a transgression. But here, he did a transgression. Do I say that one who carries matzah from a private domain to a public domain does not fulfil his obligation on Pesaḥ?

The questioners assume a frame by which performing an aveirah in service of a mitzvah

somehow nullifies the mitzvah—hence the connection to the case of tearing on shabbat, which

would ordinarily forbidden, but here is in the service of the mitzvah to mourn appropriately.

Instead, Rabbi Yose proposes a helpful distinction. It is not that performance of an

aveirah nullifies a mitzvah. Rather, one who uses an object that it itself is a sin (such as a stolen

matzah) for a ritual purpose has negated their actions. In the tearing case, it is an action that is

forbidden in the service of a mitzvah; for the matzah, it is an object that was obtained illegally. In

other words, actions are different from objects. Actions that are both aveirot and mitzvot are fine;

mitzvot performed with objects that were obtained through an aveirah are not.

Thus, Rabbi Yose has generalised the specific principle regarding blessing over bread to


11

all objects used to fulfil an obligation. In doing so, the notion that actions might be problematic

also has been raised.

Forbidden actions

The continuation of the Yerushalmi Shabbat above is one of the most important parallels to our

Bavli:26

Rabbi Yonah said: An aveirah can’t be a mitzvah (ein aveirah mitzvah).Rabbi Yose said: A mitzvah can’t be an aveirah (ein mitzvah aveirah).

There are several possible interpretations of this passage. I will present what I believe to

be the most likely, and cite dissenting views in the notes.

Two amoraim disagree27 on their interpretation of the mishnah, a case of forbidden

actions performed while doing a mitzvah.28 According to Rabbi Yonah, just because someone

who tore their clothes in mourning on shabbat isn’t liable for a sin offering, doesn’t mean that he

performed the mitzvah of tearing. Rabbi Yose, on the other hand, claims that any forbidden

actions done in the service of a mitzvah are overridden by the performance of that mitzvah. This

is consistent with Rabbi Yose’s view earlier in the sugya that actions (avar aveirah) are less

problematic than objects (gufah aveirah).

The Tannaitic concept that stolen bread shouldn’t be blessed over is thus extended in this

sugya, first to matzah, and then out of the world of objects and into the world of actions. The

wording of Rabbi Yonah is hugely suggestive of Rabbi Ami’s mitzvah ha-ba’ah ba-aveirah,

though no connection here has been made to the stolen lulav.

Advocate-turned-accuser

The final element is an Amoraic midrash on the stolen lulav. This appears in a longer version in

Va-Yikra Rabbah 30:6 / Pesikta de-Rav Kahana piska 27 (which is in the duplicate section of


12

both works),29 and an abridged version in the Yerushalmi on our mishnah. Kulp and Rogoff

discuss the two as if they are the same. However, there is a key difference between the two which

I will present below.30

Both versions begin with quoting the Sifra above in the name of Rabbi Ḥiyya, followed

by a parable in the name of Rabbi Levi.

In the midrashic version, the senigor-katigor is a Roman soldier who had promised to

speak out on behalf of a bandit standing in court. However, when it comes down to it, he turns

the tables, and testifies to the bandit’s guilt. This is just like the lulav that you should be using to

get rain, but if it’s stolen it only ends up proving your guilt.

In contrast, in the Yerushalmi version the senigor-katigor is the plate of the king that you

give to him as a gift but it turns out to be his own. Just like the lulav you stole from someone in

order to impress God, the lulav itself testified to your crime.31 A major motif for our Bavli is

present here, while absent in the fuller version: whether stolen or not, the lulav belongs to God.

The continuation of the Yerushalmi introduces several more elements that are relevant to

our sugya:

1. Shinui ma’aseh, in this case tying the lulav up;

2. The idea that land cannot be stolen, which seems implicit in Rabbi Simon / Rabbi

Yehoshua ben Levi’s statement;

3. And the relationship of the stolen lulav to the stolen sukkah, which will be brought up in

the Bavli shortly after, on 31a.32

What is the relation between the lakhem midrash in the first section, and the parable in

the second section? P’nei Moshe makes it clear that they are in conflict, bringing in the


13

discussion of our gemara of day one versus the rest of the festival.33 However, I see no evidence

that any of the amoraim nor the setam are aware of the conflict between the two explanations.

Amoraim vs. Setam

What we have done in the previous sections is tracked global and local approaches to using

stolen objects or performing forbidden actions in the performing of mitzvot. We have the Tosefta,

a parable in the name of Rabbi Levi, and Rabbi Yonah’s categorical ein aveirah mitzvah—all

opinions that have a sense that once something is stolen, there is no remedy for it (leit leih

takanta, in the words of our gemara).34 At the same time, there are numerous dissenting views,

some based on broad principles (such as Rabbi Yose’s ein mitzvah aveirah), some based on

specific technicalities regarding lulav (Rav Huna, 30a-b) or sukkah (Rav Naḥman, 31a). Note

also that in Yerushalmi Sukkah, the setam is implicitly operating only in the earlier Sifra frame—

if it agreed with the notion that ein aveirah mitzvah, then the question of whether it was tied up

or not would be moot.

Together, we can see that there is a live Amoraic idea—especially in Eretz Yisrael—that

stolen goods can never be used in performance of a mitzvah, beginning to bleed into the question

of forbidden actions. At the same time, we have early Babylonian amoraim and the setam of the

Yerushalmi rejecting these broader conceptions.

There is one major exception to the above picture, and that is Rabbi Ami—a third

generation amora.

Formation of the Bavli

We now turn to the formation of our Bavli, based on the parallels discussed above. First we will

deal with the Amoraic layer of the sugya, theorising as to which its original elements are. Then


14

we will analyse the later reworking of the material known to us, as well as the material imported

from elsewhere, and try to understand the reasons behind the choices that were made. Finally,

we’ll be able to show the path of an expansive and powerful legal category through Ḥazal.

Amoraic layer

The Yerushalmi and Bavli go in different directions based on our mishnah, but they both begin

with the same basic material:

• One voice that holds lakhem as its operating principle (Rabbi Ḥiyya, Shmuel);

• One voice that has a more expansive version (senigor-katigor / mitzvah ha-ba’ah ba-

aveirah) as its operating principle (Rabbi Levi, Rabbi Ami);

• A line of questioning regarding shinui ma’aseh (both anonymous).

But perhaps we can go even further. Based on the work of Gray35 and others, suggesting a

linear chronological relationship between the Yerushalmi and the Bavli, I would like to theorise

that our sugya began more or less in the form of the Yerushalmi version: a Tannaitic midrash,

followed by an Amoraic parable.

First, let us note that Rabbi Yitzḥak bar Naḥmani is not native to this sugya. This is clear

by the gemara’s language: u-fliga Rabbi Yitzḥak, de-amar Rabbi Yitzḥak is a strong indication of

transposing a different source here.36 It is also clear based on Yerushalmi Sukkah 3:6 / 53d,

where the same attribution is applied to an almost identical meimra, referring to the mishnah of a

damaged etrog:Rabbi Yitzḥak bar Naḥman in the name of Shmuel: All those who invalidate only invalidate on the first day of the festival alone.

Clearly, his words are vague enough that it could apply in multiple places, and there is no

conceptual reason that it could or should not apply to a lulav equally to an etrog (since both are


15

mandated lakhem and hadar on the first day). These words replace the midrash, since Shmuel’s

presentation is as clear as any.37 Additionally, the midrash appears elsewhere (on 43a) so it is not

essential that it be preserved here.38

The next stage is that Rabbi Levi’s derash from Yerushalmi Sukkah gets swapped for the

parable of the tax collector. Both of them have the same basic message: even though God owns

all lulavim—stolen or not—doesn’t mean that God condones stealing. However, this new derash

does not fit as well in the context, so we must explain why it replaced one that was clearer.

The derash doesn’t appear anywhere else in the Bavli. It is possible, therefore, that the

redactors had a derash they wanted to preserve but did not know where to put it, and found that it

fit well in this context, so swapped out the old one. It could also be that several elements

facilitated its presence here:

1. The verse itself from Isaiah 61 is very apt to the context, even while the parable is not. It

could be that the good fit for the verse overrode the concern of an imperfect fit for the

parable;

2. A meimra of Rabbi Yoḥanan in the name of a different “Rashbi”—Rabbi Shimon ben

Yehotzadak—appears in Yerushalmi Shabbat regarding the stolen matzah, and perhaps

this association helped this derash enter here with a very similar (perhaps mistaken?)

attribution;

3. Or the fact that Rabbi Ami had given a very clear statement of the broader idea of Rabbi

Levi’s derash—missing from Yerushalmi Sukkah—meant that the mesader had more

freedom to include an imperfect parable, since the point was already being made.

Regardless, as it stands those components of the Yerushalmi have been replaced with the


16

parable of the king and Rabbi Yitzḥak bar Naḥmani / Shmuel standing in for the Amoraic and

Tannaitic conceptions of the stolen lulav, respectively.

Most of the other components of the Yerushalmi were absorbed into the Rav Huna story

(shinui ma’aseh and land being stolen), with the discussion of the stolen sukkah shelved for the

following sugya. Halivni argues for later setam additions regarding some of the back and forth

on shinui,39 but this is not necessary;40 it could all be Amoraic discussion.

Rabbi Ami’s addition to the sugya represents a watershed: for the first time, global

concepts like those found in the discussion of tearing for mourning on shabbat have been brought

into the discussion of the stolen lulav also. Previously, more local issues had dominated the

discussion. More will be said about this below.

From then, the sugya accrues Rav Naḥman bar Yitzḥak and Rav Ashi, who are the first to

discuss a practical implication between the two conceptions: the borrowed lulav. Again, no

previous teacher or source had done this.

Setam additions

The setam now brings the two ideas deeper into conversation with each other in order to play out

the practical consequences that Rav Naḥman bar Yitzḥak first introduced (of day one versus days

two through seven). This is the main innovation of the Bavli, since it is not present in any of the

earlier material.

If the proposed reconstruction of the amoraim’s statements above is correct, then the

setam also changes the frame of the discussion in order that it doesn’t contradict the known

halakhah from mishnah 13. This reinterpretation also naturally arises from pitting Rabbi Ami

against the imported Rabbi Yitzḥak bar Naḥmani / Shmuel: since he says explicitly the mishnah


17

only applies to day one, perhaps Rabbi Ami would hold that it applies to all days?

These two innovations combined explain the opening of the sugya: the setam opens with

ka pasik ve-tanei because it follows their new understanding of Rabbi Ami.

Using my proposed reading of the amoraim can also now explain why the setam assumes

the requirement for hadar applies to all seven days, and why none of the amoraim are bothered

by this apparent contradiction with the Sifra. The answer is that the amoraim were only referring

to the first day anyway—there was no contradiction. But the setam has so bought into the

powerful mitzvah ha-ba’ah ba-aveirah principle that there is no reason why the stolen lulav

wouldn’t be always forbidden.

The last thing to understand is the midrash on Malachi 1. Ulla has a parable on Bava

Kama 67a which is almost identical, complete with the setam’s analysis.41 There is also a derash

of Rabbi Shimon ben Yoḥai in Bereishit Rabbah 54 on the same verse, though with a different

interpretation. These two sources thus could have been combined: the attribution from Bereishit

Rabbah, and the content and analysis from Baba Kama. The verse itself is useful because it is

relevant amidst the broader interpretations of Rabbi Ami. Including the analysis has the positive

effect of introducing despair early into the discussion, since it will become important to the Rav

Huna story. Having the attribution to Rabbi Shimon ben Yoḥai is important for the authority of

Rabbi Ami’s position. Without it, only Rabbi Yitzḥak bar Naḥmani / Shmuel has a Tannaitic

source as support. But after these operations, now Rabbi Ami—the preferred opinion of the

setam—has one too.

Finally, Rabbi Yoḥanan’s name is added based on the attribution for the parable

immediately following.42


18

Evolution of mitzvah ha-ba'ah ba-aveirah

We are now also equipped to plot a detailed unfolding of the idea of mitzvah ha-ba’ah ba-

aveirah. We will attempt it first taking the attributions to individual amoraim seriously, then an

alternate version dealing with the texts as completed works, rather than amongst the individuals

quoted in them.

1. The more expansive view of stolen objects begins with Tosefta Sanhedrin, specifically

related to blessing. Early generations of amoraim (especially in Bavel) do not connect

this with the case of the stolen lulav.43

2. In the third and fourth generations of amoraim—both in Bavel and Eretz Yisrael—these

ideas begin to bleed into each other. New principles are generated, including the parable

of senigor-katigor, and mitzvah ha-ba’ah ba-aveirah (= ein mitzvah aveirah). This

happened with opposition, with many amoraim still holding onto ideas specific to lulav.

3. These broader ideas, while gaining traction amongst individual amoraim in Eretz Yisrael,

fail to greatly affect the setam ha-Yerushalmi.

4. By the time of the setam ha-Bavli, it is operating only within a Rabbi Ami frame and

reads all the meimrot in this light (possibly switching Rav Ashi’s side of the argument in

the process).

Without relying on attributions, the story is only slightly modified:

1. Tosefta Sanhedrin deals with blessing on stolen objects (as above).

2. Yerushalmi Shabbat includes this local concept to talk about stolen matzah, and expands

it to tearing for purposes of mourning on shabbat. Meanwhile, Yerushalmi Sukkah also

invents a broader principle (though less broad than those in Shabbat since it refers


19

specifically to something that would work for you as your senigor).

3. Our gemara thus inherits a sugya with both a local and a more global argument. It then

combines these with the even more global approaches of Yerushalmi Shabbat.

4. This maximised global approach gains traction in the setam ha-Bavli.

Why does this principle become so expansive in the Bavli—to include not only objects

but also actions (cf. the story of Rabbi Eliezer’s slave in Berakhot 47b)? I believe the reason is

that it encodes a deep sense of morality, especially when it comes down to ritual objects—a

subject which also today can be so drowned by legal formalism that we forget the moral issues at

play.

Further, the Bavli has a predilection for expansive, abstract legal categories—far more

than anything before it in Ḥazal.44 Once uttered, it is too powerful a principle to not be used.


20

References

Gray, Alyssa. Talmud In Exile: The Influence of Yerushalmi Avodah Zarah on the Formation of

Bavli Avodah Zarah. Providence, Rhode Island: Brown Judaic Studies, 2005.

Halivni, David Weiss. The Formation of the Babylonian Talmud. Translated by Jeffrey

Rubenstein. Oxford: Oxford University Press, 2013.

Halivni, David Weiss. Mekorot u-Mesorot: Biyurim ba-Talmud le-Seder Moe’d. Jerusalem:

Jewish Theological Seminary / Gustav Wurzweiler Foundation, 1975.

Kalmin, Richard. Migrating Tales: The Talmud’s Narratives and their Historical Context.

Oakland, California: University of California Press, 2014.

Kulp, Joshua, and Rogoff, Jason. Reconstructing the Talmud: An Introduction to the Academic

Study of Rabbinic Literature. New York: Mechon Hadar Center for Jewish Law and

Values, 2014.

Moscovitz, Leib. Talmudic Reasoning: From Casuistics to Conceptualization. Tübingen: Mohr

Siebeck, 2002.

Rubenstein, Jeffrey. “On Some Abstract Concepts in Rabbinic Literature,” Jewish Studies

Quarterly 4 (1997): 33-73.


21

Footnotes

1 Chapter 7, pp. 228-262.

2 Tosafot, s.v. ba’inan hadar ve-leika, 29b. See also Rosh, s.v. matnitin lulav ha-gazul ve-ha-yaveish (62b) and

Rabbeinu Nissim, s.v. u-mihu on Rif (13b).

3 See Tosafot, s.v. ka-pasik, 29b. See below for further discussion of the Yerushalmi parallel.

4 For a brief summary, see Moscovitz, pp. 39-45. Also see Rubenstein, esp. pp. 70-71, who also shows that the early

Amoraic period was one of rapid conceptualisation.

5 Tosafot, s.v. ha keniyah be-yei’ush, 30a.

6 See Kalmin, pp. 23-28. Though it is worth noting that the Aramaic is missing from ms. London - BL Harl. 5508

(400). With only one manuscript against, however, I feel the conclusions here are safe.

7 Kulp and Rogoff, p. 253.

8 Rashi, s.v. she-ne’emar, 30a.

9 Evidence for this will be presented below.

10 Cf. Rashi, s.v. sonei gezel ba-olah, 30a.

11 30a.

12 Even though it is true that early amoraim usually teach in Hebrew.

13 Tosafot, s.v. mi-tokh she-yotzei, 30a. They are also dealing with the question of how this sugya interacts with

mitzvah ha-ba’ah ba-aveirah on Berakhot 47b.

14 It also includes ileima, a characteristic word of the setam.

15 Halivni, Formation, pp. 192-193.

16 See Masoret Ha-Shas on 30a.

17 30a.

18 Though lo miba’yah ka-amar is Aramaic, since it (a) has a technical meaning regarding the reading of the

Mishnah and thus could easily have been used by amoraim; and (b) Rav Ashi is late and thus could be more

expected to speak a mixture of Hebrew-Aramaic, I consider it part of his statement.

19 See Halivni, Mekorot, pp. 206-208, for extensive discussion of these issues.

20 Kulp and Rogoff, p. 231.


22

21 See also BT, Sukkah 43a which quotes a version of this midrash that also excludes the borrowed lulav.

22 See Tosafot, s.v. mi-shum de-havah leih mitzvah ha-ba’ah ba-aveirah, 30a, who explicitly brings this source as a

prooftext.

23 BDB, p. 130.

24 Jastrow, p. 184.

25 Mishnah Shabbat 13:3.

26 In between the previous section quoted and this is a question regarding Rav Hoshayah’s derash and is not central

to our discussion here.

27 Though it is possible to understand them in harmony, resulting in a contradiction between the two Rabbi Yose

positions in this section. See Kulp and Rogoff, p. 238, n. 8.

28 See Kulp and Rogoff, p. 237. Though cf. Korban Ha-Eidah, s.v. ein mitzvah aveirah, and P’nei Moshe, s.v. ein

aveirah mitzvah, Vilna: 72b, who both read this argument specifically in the context of Rav Hoshaya’s derash and

the blessing on the matzah. Even if this is the correct reading, nonetheless the nonspecific words that both amoraim

use indicate the roots of a principle with much broader applications than the stolen matzah.

29 Kulp and Rogoff, p. 231, n. 3.

30 I will only summarise the main points from the longer version in the midrashic collections. The Yerushalmi text

can be found translated in the Appendix.

31 Korban Ha-Eidah, s.v. she-na’aseh senigoro katigoro, Vilna: 12a.

32 See discussion in Kulp and Rogoff, pp. 242, 244-245.

33 P’nei Moshe, s.v. amar Rabbi Levi, Vilna: 12a.

34 Also Rabbi Yehoshua ben Levi and the rabbis of Caesarea in Yerushalmi Sukkah 3:1 / 53c. See Kulp and Rogoff,

pp. 241-242 for discussion.

35 For an outline of this idea, see Gray, pp. 1-33.

36 See Halivni, Mekorot, pp. 205-206, n. 1.

37 With the proposed reading of the meimrot presented above, another motive for this replacement can be posited.

Since there were amoraim who disagreed with the Sifra, it would suit Rabbi Ami’s purposes better to be pitted

against a fellow amora instead of a baraita.


23

38 It may be that it was a well-known midrash and did not require explicit citation; after all, the setam refers to it in

their introduction as if you are supposed to know what it is.

39 Cf. Tosafot, s.v. ve-liknuyah be-shinui ha-sheim.

40 The situation only requires remedying if you assume that a forced explanation requires chronological distance.

See note X (MM).

41 Halivni, Mekorot, p.206, n. 1, at the end of the second paragraph (be-khol ofen etc.). Also see Halivni, Formation,

p. 171 for information and examples of this kind of transposition.

42 It is also possible that the attribution was changed based on the attribution of the parable immediately following.

43 Though Rabbi Yehoshua ben Levi seems to have a more robust frame with regards to the stolen skhakh.

44 See summary in Moscovitz, pp. 341-342. Illustrative examples and discussion pp. 327-340.


24

Appendix: Original translations

Below is my translation of the Bavli text under discussion, Sukkah 29b-30b, and its main

Yerushalmi parallel, Sukkah 3:1 / 53c. Tannaitic sources have been marked in bold and Amoraic

sources have been underlined. Both texts follow the printed Vilna editions, with changes from

other versions when I believe them necessary or accurate.

BT Sukkah 29a-30bMishnah. A stolen and dried out lulav is invalid…Gemara. [The mishnah] definitively teaches: there is no difference on the first day of the festival and the second day of the festival.It is well for the dried out one since we require “beautiful” (Leviticus 23:40) and it is not. But for the stolen one: it is well on the first day of the festival since it is written “for you (plural)” (ibid.)—from that which is yours, and it is not; but on the second day of the festival, why not [allow it]?Rabbi Yoḥanan said in the name of Rabbi Shimon ben Yoḥai: Because it would be a commandment that came through a transgression (mitzvah ha-ba’ah ba-aveirah). As it is said, “You bring the stolen, the lame, and the sick” (Malachi 1:13). “Stolen” is similar to “lame”: just as a lame one has no repair, so too a stolen one has no repair.It does not matter whether it is before despair (yei’ush) or after despair. It is well before despair—“When a person brings a sacrifice from what is theirs” (Leviticus 1:2), said God, and it is not his. But after despair, he acquired it through despair!Rather, it is not so: it is because of a commandment that came through a transgression.And Rabbi Yoḥanan said in the name of Rabbi Shimon ben Yoḥai: What is it that is written, “For the Eternal loves law, and hates stealing regarding a burnt offering” (Isaiah 61:8)? It is compared to a king of flesh and blood who passes the customs house. He says to his servants: “Give the tax to the tax collectors.” They say to him: “But isn’t all of the tax yours?” He said to them: “All travellers will learn from me, and they will not distance themselves from the tax.” So too the Holy Blessed One said: “I, the Eternal, hates stealing regarding a burnt offering. My children will learn from Me and distance themselves from stealing.”It was also stated: Rabbi Ami said: A dried out one is invalid because it is not “beautiful”; a stolen one is invalid because it would be a commandment that came through a transgression.


25

But Rabbi Yitzḥak disagreed. As Rabbi Yitzḥak bar Naḥmani said that Shmuel said: They only taught it with regards to the first day of the festival. But on the second day of the festival, since he would fulfil [his obligation] with a borrowed one, he fulfils it also with a stolen one.Rav Naḥman bar Yitzḥak objected: “A stolen and dried out lulav is invalid”—thus a borrowed one is valid! When? If you say on the first day of the festival, behold it is written “for you”—from that which is yours, and this isn’t his! Rather, it is not so. It is on the second day of the festival and [the mishnah] teaches that a stolen one is invalid.Rav Ashi1 said: It is certainly regarding the first day of the festival, and it was stated [in the form] “not necessary”—it was not necessary [to teach regarding] a borrowed one since it isn’t his. But a stolen one, I might say that ordinary stealing [implies] the despair of the owners, and it would be as if it were his. So we learn [that it is not so].[As]2 Rav Huna said to those avankari (merchants?):3 When you buy myrtle from non-Jews, do not cut them but let them cut them and give them to you. What’s the reason? Ordinary non-Jews are land thieves, and land cannot be stolen. Therefore, let them cut them, so that the despair of the owners will happen in their possession, and a change in ownership will happen in your possession.

PT Sukkah 3:1 / 53cRabbi Ḥiyya taught: “Take for yourselves” (Leviticus 23:40)—from that which is yours, and not one that is stolen.Rabbi Levi said: This one who takes a stolen lulav, to what is he similar to? To one who honours the ruler with a plate and finds that it belongs to him [the ruler]. They said: Woe to this one whose advocate became his accuser…4

One who steals a lulav from here, myrtle from here, willow from here, and ties them up[—what is the law]?Learn it from here: A stolen sukkah—there are tannaim who teach that it is valid; there are tannaim who teach that it is invalid.Rabbi Simon in the name of Rabbi Yehoshua ben Levi: The one who said it is valid, is [referring to a case where] he stole the land; the one who said that it is invalid, is [referring to a case where] he stole the skhakh.[But] isn’t it possible for him to tie up [the skhakh]? It is a [a case where] they are resting from above.The rabbis of Caesarea in the name of Rabbi Yoḥanan: Regardless, it is invalid.

1 See note 16 above.2 See Rabbeinu Ḥananel, Sukkah 30a.


26

3 Jastrow, p. 29.4 Follows is an aside into a shofar from a condemned city.

tabick stolen lulav

Documents