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BAVA KAMA 66-67 - Dedicated by Drs. Shalom and Syma Kelman of Baltimore in honor of their children and grandchildren.

66b----------------------------------------66b

1)

THE ENACTMENT FOR A STOLEN BEAM [theft: enactments]

(a)

Gemara

1.

Question: Regarding a beam, a change in name (to 'roof') does not acquire!

i.

(Mishnah): One who built a stolen beam into his house can return its value to the owner. This is an enactment to help thieves repent.

ii.

If not for the enactment, he would not acquire it!

2.

Answer (Rav Yosef): It is still called a beam, even after it is built into the roof.

i.

(Beraisa): "Tzalos of the (future Mikdash)" are the boards that hold the rafters in place. "Ha'Ovim" are the beams.

3.

Sukah 27b (Beraisa - Chachamim): "Lecha" disqualifies a stolen Sukah.

4.

30a - Rav Huna (to Yisre'elim who sell myrtle): When you buy myrtle from Nochrim, don't cut it yourselves.

5.

This is because Stam Nochrim steal land, but land is not (Halachically) stolen. If the Nochri cuts it, there is despair when it is in his hands, and the Yisrael acquires through Shinuy Reshus.

6.

In any case, one who buys from the seller is Yotzei. Rav Huna's counsel was needed for the myrtle that the sellers themselves will use for the Mitzvah.

7.

31a (Beraisa - R. Eliezer): A stolen Sukah is Pasul;

8.

Chachamim say, it is Kosher.

9.

Rav Nachman: They argue about one who physically expelled Reuven from Reuven's Sukah. All agree that if one stole wood and made a Sukah, he owes only its value (the Sukah is his and he is Yotzei in it).

10.

A woman complained to Rav Nachman that the Reish Galusa and Chachamim are in a stolen Sukah (his servants stole her wood). Rav Nachman ignored her.

11.

Rav Nachman: She is merely owed its value.

(b)

Rishonim

1.

Rambam (Hilchos Sukah 5:25): If one stole wood and made a Sukah, he is Yotzei with. Chachamim enacted that he owes only the wood's value to its original owner. Even if he stole boards and put them (on the Sukah) without connecting them or changing them at all, he was Yotzei.

i.

Kesef Mishneh and R. Mano'ach: If one stole wood and made a Sukah he is Yotzei through Chachamim's enactment. Chachamim can make things Hefker. Even after the enactment there is a case of a stolen Sukah, i.e. on a boat or wagon. Since it moveable, it can be stolen. Chachamim expound that a stolen Sukah is Pasul (27a). This could also refer to a Sukah made with stolen wood, before the enactment.

2.

Rosh (Sukah 2:16): Chachamim use "Lachem" to disqualify a stolen Sukah.

i.

Hagahos Ashri: This refers to one who stole a Sukah on a boat or wagon. It is not attached to the ground, so it can be stolen. He does not return money, rather, the Sukah itself. There is no enactment for penitents, since he did not toil to build it or spend money for it. If one stole wood and used them for Sechach, he owes only money. The Sukah is not stolen or borrowed. He acquired through changing their name and changing them. Also, due to the enactment he need not dissemble his Sukah.

ii.

Ran (Sukah 12b): If one stole wood and made a Sukah, mid'Oraisa it is Pasul due to Mitzvah ha'Ba'ah b'Aveirah. After Chachamim's enactment, he acquires the wood and is Yotzei.

(c)

Poskim

1.

Rema (OC 637:3): A Yisrael may not cut wood (for his Sukah from a Nochri's forest), for l'Chatchilah one may not make a Sukah from theft (Stam Nochrim steal land). Rather, he buys the wood from the Nochri.

i.

Taz (3): A Yisrael may cut when the kingdom gives permission, just like the kingdom cuts trees to make bridges, and we use them (Bava Kama 113b).

ii.

Bi'ur Halachah (DH Lo Yekatzetzu): If the Nochri has permission from the government, one may cut with his permission. Even if he stole from a Yisrael, it is now his. Eliyahu Rabah questions the Taz' Heter. Ri'az and the Ri permit if there were never mostly Yisrael in the area. One may rely on this.

iii.

Mishnah Berurah (12): If Levi cuts and gives to David, this helps, for there is despair when Levi has it, and David acquires through Shinuy Reshus.

iv.

Mishnah Berurah (13): If there is no other possibility, one may cut himself if he has permission from the owner.

v.

Mishnah Berurah (14): Perhaps in our lands one may bless on the Sukah, for most Nochrim get their land with the government's permission, and Dina d'Malchusa Dina.

2.

Shulchan Aruch: If he stole wood and made a Sukah, he is Yotzei with it. Chachamim enacted that he owes only the wood's value to its original owner. Even if he stole boards and put them (on the Sukah) without connecting them or changing them at all, he was Yotzei.

i.

Beis Yosef (DH u'Mah she'Chosav Rabeinu): The Ba'al ha'Itur gives another case of a stolen Sukah: he made it with stolen wood and refuses to pay for the wood. Then, there is no enactment for the thief. Rashi says that the only case of a stolen Sukah is on a boat or wagon. It seems that he holds that even when the thief refuses to pay, it was enacted that he owes only money.

ii.

Mishnah Berurah (15,16): If one pays for the wood, afterwards it is his, and he may bless on the Sukah. If he does not want to pay, he was not Yotzei.

iii.

Sha'ar ha'Tziyon (22): If he says that he will pay, but keeps stalling and saying that he will pay another time, he is Yotzei, for the enactment applies.

iv.

Kaf ha'Chayim (29): The Birkei Yosef does not allow relying on the enactment to bless on the Sukah, until he agrees to pay the value to the owner.

v.

Kaf ha'Chayim (32): If he does not agree to pay, just promises to return it after Sukos, he is not Yotzei, unless the owner consents.

vi.

Bi'ur Halachah (DH v'Im): Even though the Poskim who allow a Ma'amid (what holds up the Sechach) that is Pasul for Sechach, perhaps it is Pasul if one borrowed without permission, which is theft. (If he pays for it, he is no worse than a thief, and he is Yotzei.) Even if the walls were stolen, it is Pasul.

3.

Shulchan Aruch (OC 649:1): If any of the four Minim was stolen, it is Pasul, before or after Yi'ush. However, if one stole a Lulav and trimmed it, it is Kosher because he acquired it through Shinuy. However, he may not bless on it.

i.

Mishnah Berurah (10,12): The Isur to bless is only if it was surely stolen.

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