My Sukkah Was Built With Stolen or Borrowed Materials – What’s the Halacha? [#114]

My Sukkah Was Built With Stolen or Borrowed Materials - What's the Halacha?

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Today we're going to be discussing a question about of what's the halacha if somebody uses (borrowed or stole) another person's materials to build their sukkah. Their schach, their boards, their beams. They used it to build it in their sukkah without permission. How have they justified it? Whether they outright just stole the items, or they justified it by saying, "okay, the guy's not around, it's extra boards, no one's using them this year, I'm going to give them back right after Sukkos". Whats the halacha?

In such a case, of course, it's wrong to do so. But if someone were to build their sukkah out of such materials, is a yoytzi mitzvah, did he fulfill his obligation by sitting in a sukkah? Can he make a bracha in such a sukkah? Or do we say that, no, he has to dismantle the sukkah on the spot and return the materials right away?

On the surface, we have to discuss, can a person be Yotzi through a stolen sukkah or not? It's a gemara in the Mesachet sukkah, where we talk about the Dalim, meaning the Lulav, Aravus, Hadassim, and Esrug, we know that you have to be in full ownership of those items, and it doesn't suffice, you can't even borrow them from some another person to fulfill your obligation on the first day of sukkahs.

Similarly, we spoke about in a video Video number 113, whereby a sukkah, if the rule applies, and we come over there, is that we hold of the opinion that a sukkah does not have to be yours, and you can even use a borrowed sukkah on sukkahs. However, you can't have a stolen sukkah on sukkahs. So therefore, over here, technically, okay, if you borrowed it with permission, he's not the owner of it, but if it's borrowed materials, it's okay, because it's a borrowed sukkah, and you can fulfill obligation, and even sit down and make a bracha, on a sukkah that's borrowed.

However, if it's stolen, it would seem that, no, you're not fulfilling your obligation, and you have to give it back right away and dismantle your sukkah. However, there is a halakha concept called Tekana Seshavim. It's brought up in the Gemara in Gitten, Dafnun Hei, and Babakama Dafzari Hei, that the Chachamim, in a case where someone would have actually stolen materials, taken without permission, and built it into a permanent manner and a structure, Since they actually toiled and they put effort into building this item, it would be very hard for these people, the thieves, to actually dismantle everything and return it to the owner.

And the Chazal knew this, so they instituted a special rule is that instead, the thief could actually take ownership of the item as long as they decide that they're just going to pay the monetary value of it. And therefore, over here, It would seem that that if they stole it, they would build it in.

But wait, your sukkah is not a permanent structure. So maybe they didn't say this rule. So we actually hold, the gemara comes out, and sukkah daf lamed alef, and the shulchan uroch, uroch haim zayin, is that since on sukkahs, our sukkahs have a status of a permanent structure, so therefore, if you would build a sukkah, On Sukkot, it's considered that you put these items into a permanent structure and this Tekana of Chazal, where they said that you can take ownership of the items that you built it into a permanent structure, would apply as long as a person decides and he agrees that he's going to pay for the items.

And therefore, in the case where he agrees that he's going to pay for the value of the items that he took, then he would be yoytzi his mitzvah. However, if he says, no, I'm not going to pay for it, I'm just going to give back the boards after sukkahs, then he doesn't have this rule of tekunas hashavim that he would take ownership and therefore it would stay stolen and he would not be yoytzi his mitzvah and of course he couldn't make a bracha on that as well and he'd have to actually dismantle the sukkah on the spot and return it because he doesn't plan on paying it, he doesn't have this special rule.

Let's say he stole the items, or he has these items, he didn't build the sukkah, he's like, I'm going to build a sukkah, it doesn't matter. It's only after it's been attached. And it even applies even to the shakh, it's just lightly sitting on top. If you put the shakh on properly, then it's part of the structure.

And again, he wouldn't have to give it back as long as he agrees to pay. What about before sukkahs? It's before sukkahs is already built. So the maram sheikh, as the shiita says, is that it's still considered part of the sukkah structure and you wouldn't be forced to dismantle it and you can still pay the value.

However, there is a rule that after sukkahs is over, if a person had taken this board and we don't say this rule and he would actually have to dismantle the sukkah and he can't say I'm just going to pay for it and keep these items, he has to give back the actual items as well. Now this isn't a case where you took it with the intention of taking it on purpose.

If someone unintentionally took someone else's board thinking it was theirs, that's a separate halacha and you may not even have to come on to this rule of takkunat ha'shavim that a person could be yoytzi. But in a case again where someone had stolen these items, as long as they plan on paying back, then a person could be yoytzi, their mitzvah of sukkahs on such a sukkah, if it's already done, again you can't do this actively, and even The chazal gave you ownership of them and you would be able to make a bracha of leshiv besuko on such a sukkah as well.

Thank you very much and have a great sukkos