This perek introduced us to the idea that a stolen lulav cannot be used to perform a mitzva – how about a stolen sukka? Surprisingly, in this case, the Hakhamim permit the use of a sukka that was built on stolen property. Rabbi Eliezer, who forbids its use, does so as much because of the sin involved as because of his view that every person must live in his own sukka and cannot borrow (or steal) the sukka of his friend.
Why is the rule of mitzva ha-ba’ah ba-aveirah – a commandment that is being fulfilled by means of a sinful act – not applied in this case?
The Ritva raises this question and suggests that the concept of mitzva ha-ba’ah ba-aveirah applies only to commandments that are acts of prayer and entreaty; this would be true of the lulav, which is taken as part of the prayer service, but not the sukka. This explanation is rejected by the majority of the commentaries. The Tosafot Ri”d suggests that the Gemara is discussing a case where a significant change was made to the sukka itself, thus removing it from the possession of the original owner, and in turn taking away its halakhic status as “stolen.” It is also possible that there are some amora’im who do not accept the restrictions of mitzva ha-ba’ah ba-aveirah.
Rabbi Moshe ibn Habib, in his Kappot Temarim, suggests that the definition of a sukka is its s’khakh; thus the only problem of mitzva ha-ba’ah ba-aveirah would be when the s’khakh is stolen, and our Gemara is discussing a case when it is the land on which the sukka is standing that is stolen.
According to the continuation of the Gemara, even the case of a stolen s’khakh may not be an impediment for using the sukka, because of takkanat marish. According to the Torah, if a person has a stolen article in his possession, it is not enough for him to pay its value to the owner – he must return the object itself. The Sages ruled that in the event that forcing the thief to return the object may discourage him from repenting (e.g. where a stolen beam could only be returned if the thief would have to destroy his house in order to extract the beam), he can return its value rather than the object itself. Thus, if wood was stolen and used as the s’khakh of a sukka, it is likely that the thief would only have to return the value of the s’khakh and not the s’khakh itself.
It goes without saying that even if a sukka gezulah (stolen) is technically kosher, one should not use someone else’s sukka without his permission – see the Rema in the Shulhan Arukh Orah Hayyim (637:3).