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What makes stolen property forbidden for a mitzvah (מצוה)—the past act of theft or an ongoing gezulah status? The shiur analyzes Tosafos (תוספות)'s question on Sukkah 30a, proposing that mitzvah haba'ah b'aveirah requires the aveirah to be "alive" now, meaning a present kinyan gezulah in the object, not just a past transgression. When karka ein lo yeush (land cannot be legally stolen), there is no kinyan gezulah even though one violated lo sigzol.
The shiur opens with Tosafos (תוספות)'s question on daf lamed (30a) regarding lulav shel asheira: Why does the Gemara (גמרא) need to invoke the reason of "kasaim mach'chishah shelo" (that which invalidates due to thinning/pruning) for asheira, when it should be pasul simply because of mitzvah (מצוה) haba'ah b'aveirah—performing a mitzvah with an object used for a transgression? Tosafos assumes mitzvah haba'ah b'aveirah applies to all mitzvos. The speaker raises a fundamental challenge: by asheira, one served the tree itself, creating an aveirah in that very object. But by ir hanidachas (a condemned city where the majority worshiped idols), one did not worship the lulav—one worshiped Baal elsewhere in the city. Why should the lulav be tainted? The shiur suggests that ir hanidachas may not fit the definition of mitzvah haba'ah b'aveirah because no aveirah was done with the lulav itself; rather, Hashem (ה׳) is waging war against the city, and the din is one of milchamah (war), not mishpat (judgment). The taint in mitzvah haba'ah b'aveirah must come from an aveirah done in the object itself, not merely in the city where it is located. Rav Kiva's question is introduced: Tosafos later states that Shmuel holds one can be yotzei with lulav hagazul on Yom Tov Sheini because there is no mitzvah haba'ah b'aveirah on a mitzvah d'rabanan. If so, why does the Gemara need to give the reason of "kasaim mach'chishah shelo" for asheira? That reason is needed according to Shmuel to exclude asheira even on Yom Tov Sheini. According to Rav Yochanan, mitzvah haba'ah b'aveirah would suffice. So Tosafos's question is only relevant to one opinion, not universally.
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Sukkah 30a
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