649 - תרמט דברים הפוסלים בארבעת המינים ובו כ"[ד] סעיפים

Things That Disqualify the Four Species

1. If any one of the four species is borrowed, stolen, or taken by theft, whether from a Jew or a non-Jew, even if the original owner has already despaired of recovering it, it is invalid on the first day of the festival by Torah law.

This is because it says: "And you shall take for yourselves on the first day..." and the Sages expounded: "for yourselves"—it must be yours, to exclude the borrowed, the stolen, and the taken by theft, which are not his, since he is obligated to return it to its owner and cannot exempt himself by paying its value.

2. From the second day onward (that is, in Eretz Yisroel; but in the Diaspora, this will be explained below), when the obligation to take the lulav is only by rabbinic decree, a person may fulfill his obligation even initially with a borrowed one. Since the Sages instituted it only as a remembrance of the Beis Hamikdash, they were not stringent to disqualify the borrowed one, since its disqualification is not inherent, for it is a valid species, just not his own.

3. It is permitted to take another person's lulav without his knowledge and recite a blessing on it on the other days, except for the first day, as will be explained in siman 658. For it is generally assumed that a person does not mind this, since one is pleased that a mitzvah is performed with his property in a way that does not cause him any loss, as the lulav is not damaged thereby.

However, it is forbidden to remove the lulav from the place where its owner left it to another place, such as from his house to the synagogue, as explained in siman 14. See there for the reason.

4. But a stolen or taken-by-theft lulav is invalid even on the other days, even if the owner has already despaired of recovering it, because it is a mitzvah that comes through a transgression. That is, when he fulfills the mitzvah, he is doing so through the prohibition of theft, since if the owner comes to claim it, he is obligated to return the stolen item itself and cannot exempt himself by paying its value. Thus, the stolen item is not acquired by him at all and still belongs to the victim, and he is using it unlawfully.

5. However, if the thief has already acquired the stolen item through a change, whether by changing its form or by changing its name before using it for the mitzvah—for example, if he stole a lulav and trimmed it—then it is valid even on the first day. For since even if the victim comes, the thief is not obligated to return the stolen item itself, but only its value, as explained in Choshen Mishpat siman 353, it is now fully acquired by the thief and is truly his in every respect.

Nevertheless, since this mitzvah came to his hand through a transgression, he should not recite a blessing on it, even from the second day onward.

And even though there are those who disagree with this, in cases of doubt regarding blessings, we are lenient. For one who recites such a blessing is not blessing, but blaspheming (since it appears as if he is blessing over a transgression that came to his hand), if he takes it for his own use to fulfill the mitzvah.

6. All this applies to the thief himself. But if he sold or gave it as a complete gift to another person: if the owner had already despaired of recovering it before it was sold or given, then the buyer acquires it through the owner's despair and the transfer of possession from the thief to the buyer. Even if the victim comes, the buyer is not obligated to return anything, so it is fully his, and he may fulfill his obligation with it even on the first day.

He may also recite a blessing on it, since this mitzvah did not come to his hand through a transgression, for he did not steal it (and he acquired it after the owner had already despaired of it).

But if the owner had not yet despaired of it, the buyer does not fulfill his obligation with it even on the other days, because it is a mitzvah that comes through a transgression, since the buyer is using it unlawfully, as it is still presumed to belong to the victim, who has not yet despaired of it.

7. All this is when it was sold or given as a complete gift. But if it was lent to another (or given as a gift on condition to return it), even if the owner had already despaired of it, the borrower does not fulfill his obligation with it on the first day, since it is not acquired by him through despair and transfer of possession. The transfer of possession (from the thief) is not considered a true transfer, since he is obligated to return it to the thief.

But on the other days, he does fulfill his obligation with it, and there is no issue of a mitzvah that comes through a transgression, since the owner had already despaired of it before it was lent to him, so the borrower has committed no sin.

8. A Jew who buys any of the four species from a non-Jew, where the lulav grows on the non-Jew's land, should not cut it himself from the non-Jew's land, because most non-Jews are assumed to have seized land from Jews or from other non-Jews.

And even if the landowner has already despaired of it, despair alone without a change of possession does not effect acquisition, so it remains stolen in his hand.

But if this Jew cuts it in order to sell or give it to others to fulfill their obligation on the festival, it is permitted, since there is also a change of possession from the thief (i.e., this Jew who cuts it) to the buyer.

9. All this is the ideal practice, but after the fact, if the Jew has already cut it, he himself is also permitted to recite a blessing on it, since he cut it with the non-Jew's permission, we are not concerned about the possibility that it is stolen from a Jew or another non-Jew.

10. Similarly, if the non-Jewish landowner who gives permission to the Jew to cut it holds this land by right of the king who gave it to him, even if the king himself conquered this land in war from another, this is not considered theft. For land is fully acquired by the conqueror through conquest in war, as the Sages learned from the interpretation of verses.

All this applies outside of Eretz Yisroel. But in Eretz Yisroel, which is obligated in terumos and maasros: if a Jew himself cuts the esrog, it becomes obligated in terumah and maaser through his cutting. If he takes it for the mitzvah before separating terumah and maaser from another esrog, he does not fulfill his obligation, since it is tevel, and tevel is invalid even on the other days, as will be explained.

Things That Invalidate the Four Species

11. If any of the four species is from an Asheirah tree: if it belonged to a Jew—that is, a Jew acquired it from its idol-worshipping owners—it is invalid, even on the other days of the festival. This is because all the species must have the minimum size specified for them (namely, three handbreadths; see siman 650), and an Asheirah tree that belongs to a Jew cannot be permitted for benefit by a non-Jew’s nullification. Therefore, it must be burned, and anything that is destined to be burned is considered as if it is already burned, so it does not have the required minimum size.

12. If the Asheirah tree belongs to a non-Jew, one should not, ideally, cut any of the four species from it, even if the non-Jew has already nullified it. Even if the tree was not originally planted for idol worship, but only later was worshipped, in a way that it is permitted for ordinary benefit even without nullification—since something attached to the ground does not become forbidden—nevertheless, it is repugnant for sacred use, since it has been associated with idol worship.

But if, after the fact, one already took the four species from such an Asheirah for the mitzvah, he has fulfilled his obligation and does not need to take them again.

Even if the non-Jew did not nullify this Asheirah and it is still forbidden for benefit, nevertheless, since nullification by a non-Jew would permit it for benefit, it is not destined to be burned, since the non-Jew could still nullify it.

And even though it is currently forbidden for benefit, using it to fulfill the mitzvah is not considered deriving benefit, for mitzvos were not given for benefit, as explained in siman 626.

13. When does this apply? When the Jew who cut these species from the Asheirah did not intend to acquire them for himself, but intended to return them intact to the non-Jew owner, and did not take them for the mitzvah on the first day—for a borrowed species is invalid on the first day—but took them on the other days.

But if he intended to acquire them fully, not to return them to the non-Jew, then as soon as he cut them, the Jew acquired them, and they became idol worship of a Jew. In that case, nullification by a non-Jew does not permit them for benefit unless it was nullified before he cut them, and they are destined to be burned. Therefore, even after the fact, he has not fulfilled his obligation.

14. All this applied in earlier times, when non-Jews would bow to the tree itself. But nowadays, when non-Jews do not bow to the tree, but rather plant a tree in front of an idol, or plant trees in a garden of idol worship, and the proceeds from the fruit go to their priests—it is permitted to take the four species from such trees for the lulav. This is as explained in Yoreh De’ah siman 143 regarding ordinary benefit; see there.

15. An esrog that is not fit for eating, such as one that is tevel (untithed produce) or orlah (fruit from a tree’s first three years), is invalid all seven days. As it says, “And you shall take for yourselves,” and the Sages expounded: “fit for you for all forms of benefit.” Since the usual benefit of an esrog is eating, it must be fit for eating.

An esrog of orlah from outside Eretz Yisroel, although it is forbidden to eat, since there are authorities who permit feeding orlah from outside Eretz Yisroel to someone who does not know it is orlah, it is therefore considered fit for eating.

Even though the halachah does not follow their opinion, as stated in Yoreh De’ah siman 294, nevertheless, one may rely on their view to permit the esrog for the mitzvah.

16. If someone vowed not to benefit from his own lulav or from his friend’s lulav, that lulav is invalid for him on the first day, since it is not fit for any use by him, as he has prohibited himself from benefiting from it, and the Torah says: “for yourselves”—meaning fit for you for all forms of benefit.

Therefore, he must take a different lulav to fulfill the mitzvah on the first day. But on the other days, since the obligation to take the lulav is only a remembrance of the Temple, the Sages were not as strict to invalidate it for something that is not an inherent defect. For the lulav itself is valid; it is only that he has prohibited himself from benefiting from it.

17. But all other things that invalidate any of the four species, when the invalidation is due to an inherent defect, invalidate both on the first day and on the other days. Except for invalidation due to lacking a part, such as if there is a hole that goes through and there is a missing part from the body of the esrog, or if the stem was removed and its place is left as a cavity.

But if the pitom (style) was removed, its invalidation is not only because of the missing part, but because it is not beautiful. Therefore, it is invalid all seven days, like all invalidations due to lack of beauty, such as a chazazis (blemish) and similar, which invalidate all seven days.

18. Even a missing part is only valid on the other days if the remaining part is still the minimum required size, that is, the size of an egg for an esrog. But if less than an egg remains, it is invalid.

Similarly, a hadas or aravah that does not have the minimum size, that is, three handbreadths, or a lulav that does not have the minimum size, that is, four handbreadths, is invalid all seven days.

19. Thus, you learn that all things that are invalid on the first day by Torah law are invalid on the other days by rabbinic decree, except for ten things, which are:

1. Borrowed, whether with the owner’s knowledge or not, as long as he did not intend to steal it.
2. One who vowed not to benefit from the lulav and its species.
3. A lulav that split in a way that invalidates it.
4. The top middle leaf split (these two are invalid due to lacking a part, as explained in siman 645).
5. Most of the tips of the lulav’s leaves are bent over.
6. A hadas whose leaves dried out, leaving only three withered leaves at the top of the branch.
7. An esrog with a hole, even if it is missing a part, even much more than a small coin, even if it goes all the way through.
8. Its flesh has decayed inside.
9. It split in a way that invalidates it.
10. Its stem was removed.

There are those who permit, on the other days, even those invalid due to lack of beauty, such as if the pitom was removed, a chazazis (blemish), and similar cases.

One may rely on their opinion in pressing circumstances when it is impossible to find other species, for there are those who have the custom to recite the blessing in pressing circumstances on all invalid species, even on the first day, as will be explained.

Matters that Disqualify the Four Species

20. For example, if a citron was gnawed by mice, even though it is valid on the other days—since a missing citron is valid on the other days—from the second day and onward, nevertheless, ideally one should not take it even on the other days until the gnawed part is removed, because it is repulsive.

But if its disqualification is because it is not beautiful, such as if it is dried out or spotted—which is invalid all seven days—it does not help to make it valid by cutting and removing the dried or spotted area, since the disqualification came from a flaw.

Even so, it is permitted, even ideally, from the second day and onward, to cut from the citron and eat it, and one fulfills his obligation with what remains, even if it is only a small part of the original citron, as long as what remains is at least the size of a k’beitzah (the volume of an egg).

This applies when he stipulated before twilight on the first night that he does not separate himself from having power and rights over the citron for the entire duration of twilight on the second night. Thus, this citron was not set aside during twilight of the first night—which is the beginning of the festival—for the mitzvah of taking the citron, since for the other days of the festival he stipulated that his power and rights over it would begin at the start of the other days of the festival, that is, at twilight of the second night.

But if he did not explicitly say that he does not separate himself from it for the entire duration of twilight, even if he stipulated that he would be permitted to use it from the second day and onward, it is forbidden to use it from the second day and onward. For since during twilight of the first night, which is the beginning of the festival, it was set aside and designated for the mitzvah of taking the citron for all seven days of the festival, it was forbidden for him to use it for any other purpose during the entire twilight of the first night, since it was entirely set aside for its mitzvah to fulfill the obligation with it the next day, the first day, when a missing citron is invalid.

And since during twilight, which is the beginning of the festival, the entire citron is set aside and it is forbidden to use any part of it, the entire citron is set aside and prohibited for all seven days of the festival.

For all seven days are considered as one long day in this regard, unless he explicitly stipulated for the other days, as explained above.

21. All items that are invalid on the first day but valid from the second day and onward—this is in Eretz Yisroel, where the second day is Chol HaMoed.

But outside of Eretz Yisroel, where two days of Yom Tov are observed, there are those who say that all the invalidations that apply on the first day by Torah law also apply on the second day by rabbinic decree.

Since the Sages instituted the second day of Yom Tov because of doubt, perhaps it is really the first day, one must therefore observe all the stringencies of the first day on the second day as well, due to the doubt.

And there are those who say that since we are now expert in the calculation of the months and know that the second day is a weekday, and we only observe it as sacred so as not to treat lightly the custom of our ancestors, who lived at a time when the months were sanctified based on eyewitness testimony and the matter was not dependent on calculation,

and we are only commanded not to treat lightly the essential sanctity of the day. Therefore, we recite Kiddush over a cup and say the Shehechiyanu blessing on the second day of Yom Tov just as on the first day.

But matters that are not part of the essential sanctity of the day, but are mitzvos that apply only on that day—such as all the invalidations that apply only on the first day—even if these mitzvos do not apply on the second day, there is no disrespect to the second day at all, since these mitzvos are not dependent on the essential sanctity of the day. For the mitzvah of taking the lulav is not made obligatory by the Torah because it is Yom Tov, but because it is the first day, as it says, “And you shall take for yourselves on the first day.”

In practice, when there is doubt regarding blessings, we are lenient. Therefore, all the invalidations of the first day, the species may be taken on the second day of Yom Tov in the Diaspora without a blessing.

Nevertheless, if possible, one should borrow a lulav and its species that are valid from a friend as a gift on condition of return (to be stringent for the first opinion, that a borrowed lulav is invalid on the second day of Yom Tov), and recite the blessing over it, and afterwards take his own (and recite Hallel with the congregation over it).

22. All four species that are invalid and their invalidation is visible in their body, such as being invalid due to being incomplete or lacking beauty—if it is a time of necessity and it is impossible to find other valid species, it is permitted to recite a blessing over these invalid species, even on the first day. For all these invalidations were not clearly specified in the Torah.

Even though the Torah says “hadar” (beautiful), nevertheless, the Torah did not specify what is considered “hadar” and what is not. Rather, all these invalidations were entrusted by the Torah to the Sages. And they said that not in a time of necessity, even after the fact, one does not fulfill the obligation, so that the Jewish people will be careful with the mitzvos and seek out valid species.

But in a time of necessity, since it is impossible otherwise, one recites the blessing over these invalid species, so that the mitzvah of the citron will not be forgotten from among the Jewish people.

23. But all invalidations due to not being the correct species at all, such as a “wild myrtle,” a “willow-leaved poplar,” or a grafted citron (or because they have no leaves, such as if most of the leaves have fallen off), or because they are lacking the minimum required size—that is, a citron less than a k’beitzah, a lulav less than four handbreadths, and a myrtle or willow less than three handbreadths—or because the mitzvah comes through a transgression, or because of idolatry, or because the citron is not fit to be eaten—all these may not be taken even in a time of necessity, not even without a blessing.

This is a decree lest people err and say that even these species are valid, and therefore they are taken, and people will come to permit them even when it is not a time of necessity.

But when the invalidation is due to a blemish that is a deficiency in the body, or because it is not beautiful, everyone sees the blemish.

For beauty and deficiency are visible matters, and everyone knows that they are only being permitted because it is a time of necessity, since in all other years people seek out complete and beautiful ones.

And there are those who disagree with all this and say that even those invalid due to a blemish, one does not recite a blessing over them even in a time of necessity, but rather takes them without a blessing, merely as a remembrance so that the mitzvah of the citron will not be forgotten.

Matters That Disqualify the Four Species

24. In some places, the custom follows the first opinion.

But in these countries, the custom regarding all disqualifications is in accordance with the latter opinion, except for a dry lulav and hadas. For if people would not recite the blessing over them in pressing circumstances, in most cases they would not recite the blessing on the mitzvah of lulav at all, since fresh lulavim and fresh hadasim are not commonly found in these countries.

And so, in these countries, the custom is to recite the blessing over a dry lulav and hadas, even when there are other fresh ones available in the city.

The reason for this custom is that even the fresh ones are not completely fresh; they only contain a small amount of moisture. Therefore, the fresh and the dry are almost similar to each other.

However, in a place where there are completely fresh ones, one should not recite the blessing over the dry ones, even if they are not completely dry but only have a small amount of moisture.

If one nevertheless recited the blessing over them, there is reason to be uncertain and to say that he must go back and recite the blessing over the fresh ones.

For they only permitted reciting the blessing over the dry ones in pressing circumstances, but not in such circumstances—even after the fact, one does not fulfill his obligation. And here, since it was possible to recite the blessing over the fresh ones, he did not fulfill his obligation with the dry ones.

Nevertheless, since the dry ones are not completely dry, it is possible to say that after the fact, he has fulfilled his obligation.

Therefore, he should take the fresh ones without a blessing.

But if he recited the blessing over completely dry ones in a place where there are completely fresh ones, he has not fulfilled his obligation.

And he must go back and recite the blessing over the fresh ones.