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The Gemara (גמרא) permits use of a stolen sukkah under certain conditions, raising the question of mitzvah (מצוה) ba'aveirah. Rashi (רש"י) and Tosfos struggle with whether takanas meishiv applies through kinyan or shinui, and why the Gemara doesn't invoke the principle of mitzvah ba'aveirah. The shiur explores multiple unresolved tensions in the Rishonim's readings.
This shiur analyzes Sukkah 31a, focusing on the Gemara (גמרא)'s discussion of sukkah gezulah — a stolen sukkah. The Gemara presents a dispute: according to Rabbi Eliezer, if one forcibly ejects someone from their sukkah and sits in it, one does not fulfill the mitzvah (מצוה) of sukkah because "karka'as ein gezulah" does not apply — the land itself cannot be stolen through kinyan, but the act of trespassing still disqualifies the mitzvah. According to the Chachamim, one is yotzei because the principle of karka'as ein gezulah means there is no actual gezelah in the land, and the sukkah remains valid. The shiur raises a fundamental question: why doesn't the Gemara invoke the principle of mitzvah ba'aveirah — a mitzvah performed through a transgression is invalid? This question is especially acute in the case where one steals wooden beams (gazal eitzim) and uses them for s'chach. Rashi (רש"י) and other Rishonim offer several answers: (1) mitzvah ba'aveirah does not apply to sukkah because it is not a korban; (2) mitzvah ba'aveirah is only a Rabbinic prohibition; (3) the issur does not inhere in the sukkah structure itself but only in the land, and since karka'as ein gezulah, there is no cheftza shel aveirah.
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Sukkah 31a
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Why does the Gemara present a kal v'chomer for chuppah making kiddushin based on kesef not being maichel b'terumah, only to reject it? The shiur reveals that even the rejected kal v'chomer establishes a fundamental yesod: kiddushin is a kinyan for ishus (marital relationship), not merely a kinyan in hilchos kinyanim. The second kal v'chomer—from chuppah being gomeres—raises Tosafos's famous question.
Is the kesef used in kiddushin a true kinyan (acquisition), or merely a symbolic means of establishing marriage? The shiur analyzes multiple interpretations of the Gemara's derivation from ki yikach ki'ach mi'Sayeffron, exploring whether marriage constitutes ownership, and develops three fundamental approaches: (1) The Gemara proves ishus is a kinyan, (2) ishus is not a kinyan but uses kinyan-like means, or (3) ishus is a kinyan but the kesef may not be a ma'aseh kinyan. The Rambam's position—calling kesef "midivrei sofrim"—is explained as distinguishing between cross-referencing concepts versus borrowing terminology.
Why does the Mishna alternate between the language of "kinyan" (acquisition) and "kiddushin" (sanctification) when describing marriage? The shiur develops a fundamental distinction: marriage has two separate aspects—a kinyan dimension (ownership) and a kedusha dimension (sanctified relationship). Either aspect can initiate the bond, and understanding this dual nature resolves multiple textual and halachic questions throughout the sugya.
Does kiddushei shetar require a shevah pruta? The Ran presents two approaches to the Rif's position. The shiur develops the Ran's second pshat that shetar kiddushin functions as a hachnah (exchange) rather than a mere kinyan nesina. This reading has profound implications for isuri hana'ah, mechubar, and the relationship between kesef and shetar.
