Siman 649

We learn in Sukkah (41b): The Rabbis taught: "And you shall take" – that there shall be a taking in the hand of each and every one. "For yourselves" – from your own, to exclude that which is borrowed or stolen. From here they said: A person does not fulfill his obligation on the first festival day of the holiday with the lulav of his fellow. See there. And also with that of a partnership one does not fulfill it, as the Tosafot, and the Rif, and the Rambam, and the Tur, and the Shulchan Aruch wrote in siman 658. And so it is explicitly stated in Bava Batra (137b), and the Rashbam explained that it is written: "And you shall take for yourselves" – from your own, that it shall be entirely his, and not that only part of it is his. For even though we expound in the chapter "Reshit HaGez": "your garments, your kneading bowls, your heave offerings" – to include a tallit of partnership, and the dough of partners, and the grain of partners, that they are obligated in tzitzit and in challah and in terumah, here too: if it were written here "the fruit of your goodly tree" – even of a partnership. But since it is written "for yourselves" – it must be that it is entirely his. And that which is not written "and you shall take for yourself" – that is so that there shall be a taking for each and every one. Thus far his words. And I am wondered: for regarding mezuzah we say there that even though it is written "your house," nevertheless since it is written "so that your days may be multiplied" in the plural – we learn from this even that of a partnership, see there. And is "for yourselves" inferior to "your days"? And the core of the matters is not understood, as will be explained with the help of Heaven.

For behold, the primary derivation of "And you shall take"—that there must be a taking in the hand of each and every individual; that is to say, that every person is obligated to take the four species—is not understood at all. For why is a verse needed for this? Behold, every mitzvah is so: that every person must perform it, such as sukkah, and matzah, and tefillin, and all the mitzvot. And why is there no derivation that there should be an obligation of sukkah, and matzah, and tefillin—upon each and every individual? For it is obvious that it is so, as every positive mitzvah is upon every individual of Israel to perform.

However, it appears to my humble opinion: that behold, in the version of the Rif it is written "And you shall take" – that there shall be a complete taking in the hand of each and every one, see there. And this is the explanation: that all four species must be in their entirety for each and every one, and not of a partnership, for in a partnership there is no complete taking in the hand of each one. And since that of a partnership was excluded, it follows that "for yourselves" – from your own, to exclude the borrowed and the stolen. That is to say: that if not for "And you shall take" – I would have included that of a partnership from "for yourselves." But since that of a partnership was excluded from "And you shall take" – therefore "for yourselves" comes to exclude the borrowed and the stolen. For even though for its time it is a complete taking – nevertheless, it is not yours in its essence. And also according to our version in the Gemara – this is also the explanation: "And you shall take" – that there shall be a taking for each and every one, that is to say: a complete taking. And in the Torat Kohanim it is brought "And you shall take for yourselves" – each and every one, see there. And the explanation is also thus, that each and every one must have a complete lulav, and a complete etrog, and so too all the species. And this is a complete taking, and it is clear with the help of Heaven.

And know: regarding that which one does not fulfill the obligation with a borrowed object, the commentators raised a difficulty from that which was mentioned above in siman 14: that even though a borrowed tallit is exempt from tzitzit, as it is written "your garment" – and not that of others, nevertheless, when he borrowed a fringed tallit – it was explained there that he may recite the blessing. And this is from the words of the Rosh, who wrote that since he lent it to him, he lent it so that he may recite the blessing over it. And if it is impossible for him to recite the blessing until it becomes his – we say that certainly his intention was that it should be as a gift on condition that it be returned, see there. And similarly in Even HaEzer siman 28 regarding the matter of a kiddushin ring, for one only effects kiddushin with the ring of the groom, nevertheless when he lent it – we say that his intention was that it should be as a gift on condition that it be returned. And if so, here too: when he lent him the lulav, why do we not say that his intention was that if it would not be effective – it should be as a gift on condition that it be returned, which is effective for an etrog as will be explained? (Turei Zahav ibid. subsection 5, and Magen Avraham siman 658 subsection 3, and Korban Netanel chapter four of Sukkah letter 100.)

Many have struggled with this. There is one who wishes to say that in truth, it is also so regarding an etrog, and one may recite the blessing over it when it was lent without specification (Magen Avraham, this siman, subsection 9). But it does not explicitly imply so, for according to his words, that which the Torah excluded "borrowed" – this is when he said to him explicitly: "I am lending it to you," and not as a gift on condition to return. In such a case, our teachers should have explained it (the Machatzit HaShekel also hesitated regarding this). And in my humble opinion, it appears that this is no comparison at all. For while it is true that we state this reasoning, however, this is regarding a thing that is not diminished by this, such as a tallit or a ring, for it is not an obligation upon him, as is understood. But an etrog on the first day, where there is a mitzvah and an enhancement of the mitzvah – it is incumbent upon the lender that he have an etrog all day, as is found in the Gemara (42b) regarding the men of Jerusalem, that in every place he went, his lulav was with him. If so, it is certainly not pleasing to him to remove it from his domain entirely for the whole day. And it is obvious that if his intention were as a gift on condition to return – behold, the recipient could keep it all day, and how would he do this and lose the enhancement of the mitzvah for himself? And this is as they said: Do we say to a person, "sin so that your fellow may merit"? Therefore, if he said explicitly that he gives it to him as a gift on condition to return, behold, it is pleasing to him so, and he has fulfilled the obligation, as I wrote in siman 658. But that we should say that his intention is so – it is a simple matter that certainly his intention is not so. And also for another reason it is not comparable, for certainly a person does not want to remove his own property entirely from under his hand. And only regarding a tallit and a ring do we say that it is as if he said to him "a gift on condition to return," and not the whole of it but a part of it. This is not the case regarding an etrog, for partnership is not effective, and you must say that he removed it entirely from his domain – we certainly do not say so, as long as he did not say so explicitly himself.

Therefore, regarding all these four species, if one of them was borrowed, or stolen, or robbed, whether from an Israelite or from a non-Jew, and whether before despair or after despair – he does not fulfill his obligation on the first Yom Tov according to the Torah. For we require "and you shall take for yourselves," and this is not yours. And if he found one or all of them as a lost object, if it is before despair – he has not fulfilled the obligation, and if it is after despair – he has fulfilled it. For regarding a lost object, we hold that despair effects acquisition, as I wrote in Choshen Mishpat siman 259. But regarding robbery and theft – despair does not effect acquisition, as I wrote there in siman 353. And even if despair did effect acquisition, or if there is a change of domain in addition to despair which effects acquisition, as I wrote there – nevertheless, it is forbidden due to the principle of a mitzvah that comes through a transgression. And it is written: "I am Hashem, who hates robbery in a burnt offering."

And this is when the acquisition comes through the mitzvah, for then it is a mitzvah that comes through a transgression. But if he acquired it before the mitzvah, such as if he acquired it through a change in action, or a change in name, according to the laws that pertain to this—and if so, it became his before the mitzvah, and he is not liable to him for the object itself, but rather must pay him money—he can fulfill his obligation with it, for this is not a mitzvah that comes through a transgression, and he may take it and recite a blessing over it. And some say that even though he may take it, and fulfills his obligation with it, nevertheless, to recite a blessing over it is forbidden, for one should not mention the Name of Heaven over something that was stolen or robbed from the outset. And regarding this it is said: "And the robber who blesses blasphemes Hashem." And one should be concerned for this opinion, and a doubt regarding blessings is ruled leniently. (And how is it found that the acquisition comes through the mitzvah? For example, when at the time he prepared it for the sake of the mitzvah, the change was then effected.)

And all this is regarding the thief or the robber himself. But if he sold it or gave it as a complete gift to another person, and the owners had already despaired before he sold or gave it—then it has already been acquired by the buyer or the recipient through despair and change of domain. And the buyer and the recipient are not obligated to return anything to him, and it turns out that it is truly his. And it is also permitted for him to recite a blessing over it, for regarding him "one who blasphemes" does not apply, since he did not blaspheme. But if the owners had not yet despaired—another person does not fulfill his obligation with it even throughout the entire festival, due to the principle of a mitzvah that comes through a transgression. That is to say: it is still in the possession of the victim of the robbery, and the buyer is using it unlawfully. And he is obligated to return it to the victim of the robbery since it is before despair.

And even if it is after despair, another is not permitted to fulfill his obligation with it unless he purchased it or received it as an absolute gift, as has been explained. But if the thief or the robber lent it to another, or gave it to him as a gift on condition to return it, even though the owners have already despaired—the borrower does not fulfill his obligation with it on the first day of Yom Tov, for it is not acquired by him through a change of domain together with despair, as this is not a change of domain, since he must return it to the robber. But on the other days when one fulfills the obligation with a borrowed object—one fulfills it with this as well, and this is not a mitzvah that comes through a transgression, for the owners had already despaired before he lent it to him. And there is no matter of sin in this for the borrower, only for the robber himself, for in his case it is always a mitzvah that comes through a transgression.

An Israelite who purchases from a non-Jew one of any of the species of the lulav that grows in the land of a non-Jew—the Israelite should not cut it himself, because there is a concern that perhaps that land is stolen in the hands of the seller. Land cannot be stolen, which is to say: it never leaves the domain of the victim of the theft. It turns out that this Israelite who cuts it—he is the one who steals it from the victim. And even if he has already despaired, it has already been explained that despair is not effective. Therefore, the seller should cut it, and when he gives it into the hand of the Israelite—there will be despair and a change of domain in his hand. Therefore, if the Israelite does not cut it for himself but rather for another—it is also permitted, for there will be a change of domain in the hand of the other, and it is permitted to cut it himself.

And all this is ab initio. But ex post facto, even if he cut a little bit himself and for himself—he has fulfilled the obligation. And he should recite the blessing over it, for this is merely a general concern that perhaps it is stolen property in the possession of the seller. And all the more so in a place where there is the law of the land regarding this matter; if the one possessing the land possesses it according to the law of the land—there is no concern in this, and he may cut it himself and for himself. And all the more so if he holds the land from the king himself, for there is no concern in this. And this is outside the Land of Israel, but in the Land of Israel, regarding an etrog, when he cuts it himself—there is another concern, by reason of the obligation of terumah. And this is not the place to explain them, and they were explained in Yoreh Deah siman 331. And consequently, since there is a concern of the obligation of terumah—it becomes tevel, and he does not fulfill the obligation with it, as I have written.

And this matter must be clarified, since among the nobles there are winter gardens called "orangeries," where lulavim and hadassim grow. If the noble himself gives him a lulav or hadas, or the wife of the noble gives it to him – he may cut it himself. But if one of the members of his household, or the gardener called an "ogrodnik," gives it to him – the Israelite should not cut it himself, for perhaps they give it without the permission of the noble, and it would be theft. Rather, they should cut it and give it to him, as I have written.

And all these four species, if one of them was from an asherah, meaning that they worship it as was done in ancient times, if the Israelite purchased it—it is completely invalid, even on the other days when it is not required that it be his, for the reason that that which belongs to an Israelite has no nullification, and it is destined to be burned. And anything destined to be burned is considered as if it were already burned, and its required measure is considered crushed. And behold, each one requires a measure, as will be explained in the next siman. However, if it belongs to a non-Jew, and the Israelite did not intend to acquire it but only to return it to him—ab initio he should not take it, because it is repulsive for a mitzvah. And even if they planted it not for the sake of worship, and afterward they worshipped it, and it is permitted for mundane benefit—nevertheless, for a mitzvah it is repulsive. But ex post facto if he already took it—he has fulfilled his obligation on the other days, because nullification is effective for it. And even though he has not yet nullified it, nevertheless, since he is able to nullify it, its measure is not considered crushed. And even though it is forbidden for benefit—we hold the principle that mitzvot were not given for benefit. And on the first day—it is invalid, for behold, it is not his. And when they nullified it—he can acquire it, and it is valid on the first day as well.

And this is specifically when they worship it. But if they do not worship it, but rather they planted them so that they may eat their fruits, or for the beauty of the courtyard—they are permitted, just as for a commoner, as I have written in Yoreh Deah siman 143. And if they placed it for beauty for avodah zarah—it is forbidden. And the law of orlah and tevel and terumah—was explained in the previous siman. And one who vowed to derive no benefit from his lulav or his fellow's—it is pasul for him to take it on the first day, for behold it is not "for you," as it is not fit for him for all manners of his benefit. And even though he can request an annulment of his vow—nevertheless, as long as he has not requested it, it is not "yours." And it appears to me that if he took it, and afterward requested an annulment of his vow—he has fulfilled the obligation, for behold the chacham uproots the vow from its inception. And on the remaining days there is no concern at all, for behold it does not need to be his. And if it is because he vowed benefit from it—behold this is not benefit, for mitzvot were not given for enjoyment.

And know: that among all the disqualifications explained in this siman and the previous siman, there are some that are disqualified for all seven days, and there are some that are disqualified only on the first day, and not on the remaining days, as will be explained. Behold, the Rambam in chapter eight, law 9, wrote, and this is his wording: All those disqualified due to the blemishes we have explained, or due to robbery and theft—on the first Yom Tov only. But on the second Yom Tov along with the remaining days—everything is kosher. And those disqualified because of idol worship, or because that etrog is forbidden for eating, whether on the first Yom Tov or on the remaining days—it is disqualified. Thus far his words. And according to his words, even those disqualified due to "hadar," such as a dried one or one with a lichen—it is also kosher on the remaining days. And so too all those that are truncated, and all those that are split. And it is also clear from his words that even the second Yom Tov is like the remaining days; even though we observe it due to the doubt of the day, nevertheless, since we are experts in the intercalation of the month—ultimately it is only Rabbinic. And so it is explained in the Yerushalmi, that all the disqualifications are only on the first.

But the Ra'avad wrote that a stolen or dry one are invalid on all days: stolen because of a mitzvah that comes through a transgression, dry because it is like the dead, see there. That is to say: regarding dry, we say in the Yerushalmi based on "The dead do not praise the Lord," and consequently it is also not beautiful for the other days. And so too stolen, for it is a disgrace to perform a mitzvah through a transgression, there is also no difference. And this is also the opinion of the Tosafot and the Rosh at the beginning of Lulav HaGazul, see there, for they wrote that regarding the primary taking, they instituted on the other days like on the first day. And so too hadar because of the beautification of the mitzvah. And regarding stolen there is a dispute in the Gemara, for according to Rabbi Yochanan whose invalidation is because of a mitzvah that comes through a transgression – it is invalid. But regarding lacking and borrowed – they did not institute. And so wrote the Rosh. And according to this, also a wart – is invalid, and so too those that are truncated whose invalidation is because of hadar – are also invalid for all the days. And there are those who invalidate even in the case of lacking if mice gnawed it, because it is repulsive, as will be explained.

Our teacher, the Beit Yosef, in section 5 ruled like the Rambam, and this is his wording: All those that we said are invalid due to the blemishes we explained, or due to robbery and theft – only on the first Yom Tov. But on the remaining days – everything is kosher. However, the invalidity that is due to idol worship, or because the etrog is forbidden for eating, or because they are not of their species such as "wild hadas" and willow, or because they are lacking the minimum measure – it is invalid whether on the first Yom Tov or on the remaining days. And those who observe two days of Yom Tov – the invalidities of the first day are taken on the second, but they do not recite a blessing. Thus far his words. And even though according to the opinion of the Rambam the second day of Yom Tov is like the remaining days, as I have written, nevertheless regarding the matter of the blessing he was concerned for those who hold that the second day of Yom Tov, since it is a doubt of the first – its law is like the first. Therefore, since blessings are not indispensable – he should not recite a blessing. And for the law, the main point is that there is no difference between the second day of Yom Tov and the remaining days, not like those who wish to be concerned about this. And those that are not of their species, and those lacking the minimum measure – it is obvious that even the Rambam admits, and he did not need to mention them as it is an obvious matter. (See Magen Avraham subsection 20, that specifically an etrog which is fit for eating – it is not effective when it is forbidden for eating. But the other species, even if they are forbidden for benefit – they are kosher. And only if it is "crushed to pieces" is it invalid. And he also wrote that orlah outside of the Land is kosher on the remaining days, see there, and it requires further study. And be precise and you will find it easy.)

Our teacher, the Rema, ruled like the Tosafot, the Rosh, and the Ra'avad. This is his wording: And some disqualify a stolen object all seven days, and such is the custom. But a borrowed one, one fulfills the obligation with it… and a deficient one is kosher on the remaining days. And if its pitam or its stem was removed, its law is like a deficient one, and it is kosher from the first day onwards. However, if mice gnawed it, one should not take it even on the remaining days due to repulsiveness, until one removes the gnawing of the mice. But if it was dry or spotted, which is disqualified all seven days, even if one cut away the dryness or the spots, it is disqualified all seven, since it comes from the power of a disqualification… and a scab disqualifies all seven days. Thus far his words. And that which he wrote, that if its pitam or its stem was removed it is by reason of being deficient, and is kosher on the remaining days—there is one who disagrees. And he holds that if its pitam was removed, its disqualification is by reason of hadar, and therefore one should not be lenient in this (Magen Avraham, subsection 17). And one should not be concerned about this, for even if it is so, the opinion of the Rambam is to be lenient even regarding hadar, as I have written (Eliyahu Rabbah, subsection 15). And there is conversely one who is lenient even regarding a scab (ibid.). And I say that we must not move from the words of our teacher, the Rema. And a scab is disqualified, and if its pitam was removed, it is kosher. And that which is effective regarding mice to remove the gnawing, but not regarding dry and spotted, is because mice is not a complete disqualification, but rather due to repulsiveness (ibid.). And the Kol Bo validates even regarding a scab and dryness.

This is the wording of the Kol Bo: Missing, dry, lichen-covered, swollen, boiled, its pitma or its stem removed, the leaves of the lulav were broken off, split, shriveled, crooked, and a hadas with black or red berries—they are kosher on the remaining days. However, a "wild hadas," a willow-of-the-brook, a Kushite etrog, or one grown in a mold like another creature—they are disqualified forever. And so too palm branches, for this is not a lulav at all. Thus far his words. And behold, he was very lenient, for he holds like the opinion of the Rambam that even that which is disqualified due to "hadar" is kosher on the remaining days. However, in any event, we can simply rely on our teacher, the Rema, and regarding a split lulav, our teacher, the Rema, admits that it is kosher, for its disqualification is only due to "complete taking," and it is simple that it is kosher on the remaining days. But regarding a hadas with black or red berries, and swollen, boiled, its leaves broken off, shriveled, and crooked—it appears that it is due to "hadar," and it is disqualified according to our teacher, the Rema.

It is permitted to take the lulav of one's fellow without his knowledge on the remaining days, except for the first day, because since he does not damage it through his taking—it is pleasing to a person that a mitzvah be performed with his property. However, he should not take it from his house to another place, or to the beit din, without his permission. For to take it from his house—it is certainly not pleasing to him, as I wrote in siman 14 regarding a tallit, see there. Nevertheless, on the second day of Yom Tov—he should not take it except with his knowledge. And even though the Rambam is lenient on the second day of Yom Tov like the other days, nevertheless regarding this matter there is reason for concern. And so too, everything in which we were lenient on the remaining days, it is proper on the second day of Yom Tov when another has a completely kosher lulav and etrog—to ask him to give it to him as a gift on condition to return, and he takes it with a berakhah. And afterward he may take his own when he wishes. (This is the intention of the Rema at the end of section 5, and the Magen Avraham subsection 23. Nevertheless, it seems to me that we practice entirely to be lenient on the second day of Yom Tov as on the remaining days, and we rely on the opinion of the Rambam and the Tur and the Beit Yosef).

Even though it is known that an etrog is set aside for its mitzvah for the entire festival, nevertheless, by means of a condition it is permitted. That is to say: it is permitted ab initio to make a condition regarding an etrog that it shall be entirely for the first day, and that he does not withdraw from it for the entire twilight period between the first and second days, and then it is permitted to eat it on the night of the second day or on the second day. And he can fulfill the mitzvah with what remains, since a deficient one is kosher, provided that it has the required measure, which is the size of an egg. However, we are not experts in conditions, as I wrote in siman 638 regarding the wood of a sukkah, and therefore one should not do so. And regarding this day a condition is not effective, and some say that it is effective.

It is stated in the Gemara (31a-31b): A dry lulav is invalid. And Rabbi Yehuda deems it valid, and it happened that the residents of the cities would bequeath their lulavim to their children. The sages said to him: A time of pressing need is no proof. And based on this, the Rambam wrote at the beginning of the eighth chapter that in a time of pressing need or in a time of danger, a dry lulav is valid, but not the other species. Thus far his words. And the Geonim said that a dry one, one whose top was severed, and all the invalid ones—one fulfills the obligation with them in a time of pressing need (Maggid Mishneh). And the Rambam holds that since we only found a precedent regarding a lulav, one should not validate more than that (ibid.). And the Tur disagrees with him and ruled like the Geonim, see there. And according to the Rambam, even regarding a lulav, one should only validate a dry one, and not other invalidations.

The Ra'avad, of blessed memory, disagreed entirely with this, and wrote that when they said "a time of pressing need is no proof" – it does not refer to fulfilling the obligation and reciting a blessing over it, but rather to taking them as a mere taking, as a remembrance so that the law of the etrog will not be forgotten; see there. However, most of our teachers agreed with the Geonim. Nevertheless, our teacher, the Beit Yosef, wrote in section 6: In a time of pressing need, when a kosher one is not found – all the disqualified ones are taken, and one does not recite a blessing. Thus far his words. For since the blessing is not indispensable, why should we recite a blessing even though the halacha follows the majority of the poskim? But those that are not of their species, such as grafted ones, and a stolen one, and one that does not have the required measure – are disqualified even in a time of pressing need (see Magen Avraham, subsection 24).

Our teacher, the Rema, wrote that there are those who validate a dry lulav, even to recite the blessing over it. And so we are accustomed to recite the blessing over dry lulavim, even when others have fresh ones. However, regarding the other species—one should not act accordingly. And there are those who are lenient even regarding a dry hadas, and one may rely upon them in a time of pressing need. Thus far his words. And the matter is perplexing: for how can we recite a blessing over dry ones when there are fresh ones? Therefore, there is one who wrote that the fresh ones are not completely fresh, and they are almost similar to one another. But when there are completely fresh ones—it is impossible to recite a blessing over dry ones (Magen Avraham, subsection 26). Therefore, nowadays when there are many fresh ones—Heaven forbid to recite a blessing over a dry lulav, for they only permitted it because of a pressing need, and now this is not a pressing need. And all the more so, they should not recite a blessing over dry hadasim. However, if one comes to a place where it is impossible to obtain fresh ones—the Geonim and our teacher, the Rema, are sufficient to rely upon to recite a blessing over them. But a dry etrog—in any case it is pasul, and all the more so dry aravot, for it is easy to find fresh ones. And see in the following section.

And know: that even though a deficient etrog is kosher on the remaining days, this is when one cut a small amount from it and the majority of it remains. However, one may not cut an etrog into two or three parts and divide it and fulfill the obligation with it, even in a time of pressing need, and even if there is the volume of an egg in each piece. For this is not a "deficient etrog," but rather a "piece of an etrog." For it is called "deficient" when the main part remains and a small amount is missing from it, and so one should instruct. (That which our teacher, the Rema, wrote: And all this is regarding the blessing, but without a blessing one should take all the disqualified ones and not recite a blessing over them; thus far his words — requires great investigation. For if his intention is also regarding those that are not of their species, as the Magen Avraham wrote in subsection 28 — it is difficult: from where did he take this? And it appears more likely to me that his intention is also regarding a dry etrog and a dry aravah according to the opinion of the Geonim, and not regarding other things. And his intention is that even though he disagrees with our teacher, the Beit Yosef, and ruled only regarding the lulav and hadas, nevertheless, without a blessing he agrees with him. Examine carefully and you will find it simple.)