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Can one fulfill a mitzvah (מצוה) with a stolen object if someone else uses it? The shiur analyzes the Magen Avrohom's sophisticated reading of Sukkah 30b, exploring when mitzvah haba'ah ba'aveirah applies—whether it depends on illegal taking versus illegal using, and how yei'ush and shinui reshus affect the second party's ability to make a berachah or fulfill the mitzvah of lulav.
This shiur presents a detailed analysis of Gemara (גמרא) Sukkah 30b and the Magen Avrohom's commentary on hilchos berachos and mitzvah (מצוה) haba'ah ba'aveirah (a mitzvah that comes through a transgression). The discussion centers on whether one may make a berachah or fulfill a mitzvah with a stolen object, particularly when there has been yei'ush (despair of recovery by the owner) and the object has passed to a second party. The shiur begins by examining the Magen Avrohom's first challenge regarding berachos. According to Rashi (רש"י), the Gemara's question concerns mitzvah haba'ah ba'aveirah, not the requirement of lachem (ownership). The Magen Avrohom asks: if yei'ush is not koneh (does not effect acquisition), why would the Gemara suggest that an avanakri (non-Jew) could acquire through shinui reshus (change of domain)? Rabbi Zweig explores whether yei'ush creates a heter (permission) to be koneh even if it doesn't create kinyan (acquisition) itself, which would distinguish between the din of mitzvah and the din of berachah.
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Sukkah 30b
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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.
