Shulchan Aruch: Chapter 649 - Factors that Disqualify Four Species

SECTION 649 Factors that Disqualify the Four Species. (1–24)

1 If any one of the four species was borrowed,1 obtained by robbery,2 or stolen,3 whether from a Jew or from a non-Jew,4 it is invalid on the first day of the festival according to Scriptural Law. [This applies] even if the owners have already despaired of the object’s return.5 This is derived from the verse,6 “And on the first day, you shall take for yourselves [the fruit of a beautiful tree, fronds of a date-palm, a branch of a braided tree, and willows of the brook].” The Sages7 understand “for yourselves” (לכם) as implying “of your own” (משלכם), thereby excluding specimens that are borrowed, obtained by robbery, or stolen. They are not “one’s own,” for one is obligated to return them to their owner and cannot free oneself of liability by offering financial recompense.8

2 From the second day [of the festival] onward (i.e., in Eretz Yisrael; [the laws that apply] in the Diaspora are explained below9), the obligation to take a lulav is only of Rabbinic authority.10 Hence, one may fulfill his obligation with a borrowed [lulav] [even] as an initial preference.11 For since [the Sages] instituted [this practice] only as a commemoration of [the observance of the mitzvah in] the [Beis] HaMikdash,12 they were not stringent and did not disqualify a borrowed specimen.13 The reason [for this leniency] is that there is nothing in the substance of such a specimen to disqualify it, for it belongs to a valid species. [The only difficulty is that] it does not belong to him.

3 On the other days of the festival, but not on the first day, it is permissible to take a friend’s lulav without asking him, as will be explained in sec. 658.14 A blessing may be recited. [The rationale is that] we assume that his friend will not object to this, for “a person is pleased to have a mitzvah performed with his property when he will not suffer a financial loss,”15 for [his friend’s use of the lulav] will not spoil it.

[Without permission,] however, it is forbidden to take the lulav from the place where its owner left it to another place, e.g., from his home to the synagogue, as is explained in sec. 14[:10,12]; note the reason explained there.16

4 By contrast, [a lulav] obtained by robbery or theft17 is invalid even on the later days, and even if the owner despaired of its return.¹¹ [The rationale is that] this is “a mitzvah that comes about by means of a transgression,”18 i.e., one performed the mitzvah by transgressing the prohibition against robbery. For if the owner came and demanded [the return of] his property, [the thief] would be obligated to return the stolen object intact; he could not free himself of liability by payment. Thus the stolen object has not been acquired by him at all. It still belongs to [its original owner] and [the thief] is using it unlawfully.

5 [Different rules apply] if the robber already acquired the stolen article because it underwent a change.19 Whether he acquired it because of a change that came about because of an action or whether he acquired it because of a change in its name that came about before he sought to use it for the mitzvah, e.g., he stole a lulav branch and planed it,20 it is valid even on the first day of the festival.

[The rationale is that] even if the original owner would appear, [the thief] would not be obligated to return the stolen article itself, but only to make financial recompense, as stated in Choshen Mishpat, sec. 353. Thus the object has become his property entirely. It is actually his in every respect.

Nevertheless, since [the thief] was enabled to perform this mitzvah through a transgression, he should not recite a blessing,21 even from the second day onward. Although there are authorities who differ,22 whenever there is a doubt whether a blessing is required, the lenient ruling prevails [and the blessing is not recited].23 For when this individual takes [the stolen lulav] to fulfill his own obligation, he is not blessing G‑d, but blaspheming [Him],24 (since it appears that he is reciting a blessing over the transgression that presented itself to him).

6 The above applies with regard to the thief or robber himself. If, however, he sold or gave [the lulav] as an outright gift to another person25 and the owner had despaired of its return before it was sold or given away,26 the stolen article becomes acquired by the purchaser through the despair of the owner and the transfer of the article from the domain of the thief to that of the purchaser. For even if the original owner would appear, [the purchaser] is not obligated to return anything to him. Thus he has acquired [the lulav] entirely. It is his in every respect. Hence, he may use it to fulfill his obligation,27 even on the first day,28 and he may recite a blessing over it,29 because the opportunity [to perform] this mitzvah did not come to him by means of a transgression, for he did not steal it. (Moreover, he acquired it after the owner despaired of its return.)

If, however, the [original] owner had not yet despaired of its return, the purchaser may not use it to fulfill his obligation, even on the remaining days [of the festival].30 [The rationale is that] this would be “a mitzvah that comes about by means of a transgression” because [the purchaser] is using it unwarrantedly — for it is still considered as belonging to the original owner, since he did not despair of its return.

7 All of the above applies when [the thief] sold [the stolen lulav] or gave it as an outright gift. If, however, he lent it to another person (or gave it to him as a gift with the intent that it be returned,31 the borrower cannot fulfill his obligation with it on the first day [of the festival], even if the original owner already despaired of its return. [The rationale is that] he did not acquire it through [the owner’s] despair and the transfer [of the lulav] from one domain to another. For [the lulav] is not considered to have departed from (the thief’s) domain since [the person desiring to perform the mitzvah] is obligated to return it to the thief.32

On the [later] days, by contrast, [another person] may fulfill his obligation [with such lulav]. It is not considered “a mitzvah that comes about by means of a transgression.”33 [The rationale is that] since the owner already despaired [of regaining the lulav] before it was lent to him, the borrower is not held liable for the violation34 of any transgression.)35

8 [The following principle applies when] a Jew purchases any one of the Four Species of the lulav from a non-Jew who has this species growing on his land. The Jew should not pick it himself from the non-Jew’s land.²⁸ The rationale is our operating presumption that non-Jews steal land from Jews or from other non-Jews.36 Landed property can never be stolen — i.e., it never passes into the domain and ownership of the thief in every respect so that he becomes responsible for it.37 Rather, it is always considered to be in the domain and the possession of the original owner in every respect. Thus when a Jew cuts or plucks [a specimen that is attached] to the ground, he is [at that time] stealing the severed [specimen] from the owner of the land. Though the [original] owner of the land already despaired of its return, despairing of an object’s return without transferring ownership of the object does not enable it to be acquired. Hence, [though the severed specimen] is in [the Jew’s] possession, it is considered a stolen article. If, however, the Jew severs the specimen to sell or to give to others so that they can fulfill their obligation on the festival, it is permitted, because [the stolen object, i.e., the specimen severed,] was transferred from the possession of the thief, i.e., the Jew who cuts it off, to the possession of the purchaser.

9 The above applies as an initial preference. After the fact, if the Jew severed the specimen himself, he is permitted to [use it and] recite a blessing over it. Since he severed it with the permission of the non-Jew [in whose possession it is at present], we are not concerned with the possibility that the property was stolen from a Jew or from another non-Jew.38

10 Similarly, [specimens are valid when] the non-Jew owner of the land who allowed the Jew to sever them possesses the land by virtue of the authority of the king [of the country] who gave it to him. Even though the king himself conquered this land in war from others, this is not considered as robbery, for land that is acquired by a thief39 through conquest in war is considered as a totally effective acquisition, as our Sages derived from the exegesis of verses.40

All of the above applies in the Diaspora. [Different laws apply] in Eretz Yisrael, where we are obligated [to separate] terumah and tithes from its [produce].41 If a Jew picks an esrog himself, this fact obligates him to separate terumah and tithes from it.42 If he would use it for the mitzvah before separating terumah and the tithes for it from another esrog, he would not fulfill his obligation. For the esrog is tevel,43 and [hence] is invalid [for the mitzvah], even [after the first day of the festival], as will be explained.44

11 [The following laws apply if] any of the Four Species comes from an asherah.45 If the asherah belongs to a Jew46 — i.e., he bought it from those who worship it47 — it is invalid, even on the other days, [i.e. after the first day].48 The rationale is that all the specimens must meet their respective minimum dimensions that are explicitly stated ([such as] three handbreadths [for the myrtle and willow twigs]; see sec. 650[:1]). If an asherah belongs to a Jew, there is no way that its [connection with idolatry] can be nullified49 by a non-Jew and thus enable a Jew to derive benefit from it. Hence it is awaiting destruction by fire, and any object that is awaiting destruction by fire is considered as if already destroyed. Thus, it does not possess the minimum measure required of it.50

12 [Greater leniency is granted] if the asherah belongs to a non-Jew. As an initial preference, one should not cut off any of the Four Species from it⁴⁶ [to use for the mitzvah. This applies] even if the non-Jew has already nullified the tree’s [connection with idolatry],⁴⁹ and even if the tree was not planted for idolatrous purposes, but was worshiped [only] after it grew. In such an instance, a private individual is permitted to benefit from it51 even if it was not nullified [by a non-Jew], because an object that is connected to the earth52 does not become forbidden. Nevertheless, such an object is considered abominable for Divine service,53 because it was once identified with idolatry.

After the fact, however, if one used any of the Four Species from such an asherah for the sake of the mitzvah, he has fulfilled his obligation and need not take [other specimens] again.54 Moreover, even if a non-Jew did not nullify the asherah and thus it is forbidden to benefit from it, nevertheless, since such nullification would be effective in rendering it permissible, it is not [deemed to be] awaiting destruction by fire, because a non-Jew might nullify it. Though it is forbidden to benefit from it at the present time, the fact that it is used to fulfill one’s obligation is not considered as deriving benefit. For “the mitzvos were not granted in order that one should derive pleasure [or: ‘benefit’] from them,” as explained in sec. 586;55 note [the explanation] there. [Hence, in such a situation, a person is considered to have fulfilled his obligation.]

13 When does the above apply?56 When the Jew who cut the specimens from the asherah did not intend to acquire them for his personal needs but planned to return them intact to the non-Jew [who] owns it; nor did he use them for the mitzvah on the first day [of the festival], [when] borrowed [specimens] are invalid, but on the later days.

If, however, the Jew intended to fully acquire them and not to return them to the non-Jew, he acquired them as soon as he cut them off57 and they become a false deity that belongs to a Jew. Thus the fact that a non-Jew might nullify [its connection with idolatry] will not be effective [in changing its status so that a Jew will be] permitted to benefit from it. Hence, it is considered to be awaiting destruction by fire, and even after the fact one cannot fulfill his obligation by using it, unless [the non-Jew] nullified [the tree’s connection with idolatry] before [the Jew] cut off [the specimens].

14 All of the above applied in the [Talmudic] era, when non-Jews would prostrate themselves before trees. Today, by contrast, the non-Jews do not prostrate themselves before trees, but rather (plant a tree in front of a false deity or) plant trees in a garden in the domain of a false deity and the proceeds from the fruit belong to the priests. [Today, therefore,] it is permitted to use such specimens for the Four Species of the lulav, according to the provisions noted in Yoreh Deah, sec. 143,58 with regard to a private individual deriving benefit [from such trees]. Note [the explanation] there.

15 An esrog that is not fit to be eaten, such as when it is tevel59 or orlah,60 is invalid for all seven days [of the festival]. The Sages [derive this concept61] by expounding the phrase,⁶ “You shall take for yourselves.” They understand that phrase as implying [that any specimen used for the mitzvah must be] fit to be used in all the ways in which one would [ordinarily] benefit from it. Since the way one benefits from an esrog is by eating it, an esrog must be fit to be eaten.

[Leniency may be allowed with regard to] an esrog which is orlah that grew in the Diaspora. It may not be eaten,62 but since some authorities63 allow one to serve produce which is orlah that grew in the Diaspora to a friend who is not aware that it is orlah, [such an esrog] may be considered as “fit to be eaten.” Though the halachah does not follow their view, as stated in Yoreh Deah, sec. 294,64 one may rely on their opinion to deem such an esrog fit to be used for the mitzvah.

16 If a person takes a vow, forbidding himself to derive benefit from his own lulav or from the lulav of a friend, such a lulav is invalid for him on the first day. [The rationale is that] it is not fit for him for any use, since he has taken a vow forbidding himself to benefit from it — and the Torah stipulated that the lulav must be “for yourselves,” i.e., fit to be used by you in all the ways in which you would benefit from it.65 Therefore he must take for himself another lulav with which to fulfill his obligation on the first day.66

On the later days, by contrast, since we are obligated to take the lulav only to commemorate [the practice in] the Beis HaMikdash, the Sages were not stringent and did not disqualify [a lulav] when the disqualifying factor did not affect the substance of [the lulav].67 For this lulav itself is valid; it is only that this individual has taken a vow not to derive benefit from it.68

17 By contrast, all the other disqualifying factors that affect the substance of any one of the Four Species invalidate it both on the first day and on the later days. The [only] exception is [an esrog] that was disqualified because its substance has been decreased; e.g., it was perforated from one side to the other and the substance of the esrog is lacking,69 or its stem was removed, leaving a cavity.70 If, however, the pitom has been removed, [the esrog] is disqualified not only because it is lacking in substance, but also because it is not “beautiful.”71 Hence, it is invalid throughout all seven days, as is the ruling with regard to all the factors that disqualify [an esrog] because it is not beautiful, such as an eruption.72

18 Even when [the difficulty is] a lack [in the substance of the esrog], the esrog is invalid on the remaining days unless its minimum measure — the size of an egg — remains intact. If [this] minimum measure does not remain [intact], it is invalid.73 Similarly, a myrtle or willow twig that lack [their] minimum measure of three handbreadths, and a lulav that lacks [its] minimum measure of four handbreadths, are invalid for all seven days.

19 We can derive from the above that all the factors that disqualify an esrog according to Scriptural Law on the first day disqualify it according to Rabbinic Law on the later days, with the exception of ten factors. These cases are:

(i) a person who borrows [one or more of the species] with or without the knowledge of the owner, provided he does not have the intent of stealing it;74

(ii) a person who takes a vow not to benefit from a lulav or the other species;75

(iii) a lulav that is split to the extent that it is invalid;

(iv) a lulav that is disqualified because its middle, highest leaf is divided; (for the rationale for both of these disqualifying factors is that the substance [of the lulav] is considered to be lacking, as stated in sec. 645[:10, 12]);

(v) a lulav whose leaves are mostly bent at the top;76

(vi) a myrtle whose leaves became dried out and there remained three withered leaves at the top of the twig;77

(vii) an esrog that is perforated, even if its substance is lacking, and even if the hole is much larger than an isar and extends from side to side;78

(viii) an esrog whose fibrous substance has all decomposed from within;79

(ix) an esrog that is split in a manner that disqualifies it;80

(x) an esrog whose stem has been removed.⁷⁸

Some authorities allow [an esrog or any other of the species] to be used on the later days if it is disqualified because it is not “beautiful,” e.g., an esrog whose pitom has been removed, or one that has eruptions, and the like. One may rely on their opinion in a pressing situation when no other specimens can be found. For as will be explained,81 there are those who follow the practice of reciting the blessing over specimens that have been disqualified for any reason, even on the first day.

20 If mice [have nibbled at] an esrog, creating holes, [there is a difficulty in using it,] even on the later days. It is valid, for an esrog whose substance is lacking is acceptable on the remaining days from the second day onward.82 Nevertheless, as an initial preference, it should not be used even on [those] days until one removes [the part] that the mice nibbled at, because it is disgusting.83

If, however, [an esrog] was disqualified because it was not “beautiful” — e.g., it was dried out or blotchy, which would invalidate it for all seven days — it cannot be made valid by cutting away the dried or blotchy parts, because their disqualification is inherent.

Even as an initial preference, from the second day of the festival onward, it is permissible to cut away part of the esrog and eat it and fulfill one’s obligation with the remainder.84 [This may be done] even if the remainder is less than half the esrog, as long as it is the size of an egg.85

When does [the leniency to partake of the esrog] apply? When one stipulated before bein hashmashos86 of the first night of Yom-Tov that he was not foregoing the power and the right87 to use the esrog throughout the time of bein hashmashos on the second night. Thus, during bein hashmashos of the first night — which is the beginning of the onset of the festival — this esrog did not become set aside for the fulfillment of the mitzvah of esrog. [This is possible, since] with regard to the remainder of the festival, he stipulated that he would have the power and the right [to use the esrog] at the onset of the remaining days of the festival, i.e., from bein hashmashos of the second day.

If, however, he did not explicitly stipulate that he was not distancing himself from [the esrog] during bein hashmashos, even though he stipulated that he would be permitted to make [personal] use of it from the second day onward, he is forbidden to partake of it from the second day onward. [The rationale is that] during bein hashmashos of the first night, which is the beginning of the onset of the festival, [the esrog] was set aside and designated for use in the mitzvah of the esrog throughout the seven days of the festival.

[To explain:] During bein hashmashos of the first night he was forbidden to partake of the esrog, because it was set aside — to be used the next day in fulfillment of the mitzvah — in its entirety, for on the first day an esrog that is lacking substance is invalid. During bein hashmashos, which is the beginning of the onset of the festival, the entire esrog is thus muktzeh,88 and it is forbidden to partake of even the slightest part of it. Hence it is now set aside and forbidden in its entirety throughout the seven days of the festival, for the ordinary rule is that all seven days are like one long day in this regard, unless one made an explicit stipulation regarding the other days, as explained above.

21 Whenever [we speak of] a factor disqualifying [one of the species] on the first day, but [not] from the second day onward, this relates to Eretz Yisrael, where the second day is Chol HaMoed. In the Diaspora, by contrast, where the first two days are [fully] celebrated as Yom-Tov, some authorities maintain that all the factors that disqualify [any of the species] on the first day according to Scriptural Law also disqualify it on the second by Rabbinic decree. [They argue that] since the Sages ordained the observance of the second day of Yom-Tov89 because of the doubt that it might be the first day, all the stringencies of the first day must be observed because of this doubt.90

Other authorities, however, maintain that [these stringencies need not be observed. Their rationale is that] we know which day is to be established as Rosh Chodesh,91 and we know that the second day is an ordinary weekday.92 We treat it as a holy day only in order that we should not demean the custom of our forefathers, who would sanctify the months based on the sighting [of the new moon],93 for in that era the matter did not depend on a knowledge of the calculations used in determining the months. We are commanded only not to demean the essence of the sanctity of the day, which is why we recite Kiddush over a cup [of wine] and recite the blessing Shehecheyanu on the second day of the festival just as on the first day. Nevertheless, [these latter authorities argue, this should not affect] matters that are not associated with the essence of the sanctity of the day, but are mitzvos that are observed on that [first] day alone, such as all the factors that disqualify [any of the Four Species] on the first day alone. If [the stringencies associated with this mitzvah] would not be observed on the second day, this would not be considered as demeaning the second day of the festival, for these mitzvos are not dependent on the essence of the sanctity of the day at all. [The rationale is that] the Torah did not make the mitzvah of taking the lulav dependent on the fact that [the first day] is celebrated as a festival, but on the fact that it is the first [of the seven days of the festival], as it is written,⁶ “And on the first day, you shall take for yourselves....”

With regard to the halachah, [we follow the principle that] whenever there is a doubt whether a blessing is required, the lenient ruling prevails [and the blessing is not recited].²³ Therefore, [if] on the second day of Yom-Tov [that is celebrated] in the Diaspora one has [Four Species] with factors that would disqualify them on the first day [of Yom-Tov], they should be taken without a blessing.94

Nevertheless, if possible, one should take a valid set of the lulav and the other species that belong to a friend [and these should be given to him] as a gift with the intent that it be returned, (out of deference to the first opinion which maintains that a borrowed lulav is invalid on the second day of Yom-Tov). One should recite the blessing over [the borrowed] lulav and then take his own (while reciting Hallel together with the congregation).

22 In a pressing situation, in which one cannot find valid specimens, one may recite a blessing over invalid specimens of these Four Species when the disqualifying factor in any of them is physically apparent, e.g., they are invalid because their substance is lacking or because they are not “beautiful.” [This applies] even on the first day.

[The rationale is that] these disqualifying factors were not fully specified in the Torah. For although, [for example,] the Torah describes [the tree of an esrog as] “beautiful,” it does not specify what is considered “beautiful” and what is not. Instead, the Torah left the definition of these disqualifying factors to the Sages. They determined that when the situation is not pressing, one cannot fulfill his obligation [using such specimens] even after the fact — so that the Jewish people would be careful in their observance of the mitzvos and seek out valid specimens of the Four Species. In a pressing situation, since there is no alternative, a blessing may be recited on such invalid specimens, so that the concept of esrog95 should not be forgotten by the Jewish people.96

23 [Different rules apply with regard to] all the specimens that are disqualified because of [any of the following reasons]:

they are not of the species required, e.g., a deviant myrtle97 or a tzaftzafah98 or an esrog produced by grafting;99

(they are no longer called by their name, e.g., [a twig of myrtle or willow] that has lost most of its leaves;)100

they lack the minimum size required, i.e., an esrog smaller than an egg,101 a lulav less than four handbreadths [long], or a myrtle or a willow twig that is less than three handbreadths [long];102

the mitzvah comes about through a transgression;103

the specimens had been associated with idolatrous worship;104

the esrog is not fit to be eaten.105

None of the above should be taken, even in a pressing situation, and even if no blessing is recited.106 This safeguard was ordained for fear that people might mistakenly think that such specimens, too, are valid and are being used for that reason. They might [then] mistakenly consider them valid even in a situation which is not pressing.

When, by contrast, [one of the Four Species is] disqualified because it is lacking in substance or is not “beautiful,” everyone can see the blemish; the lack of beauty or of substance is overtly apparent. Everyone realizes that they are being considered acceptable only because of a pressing situation, as [indicated by the fact that] in other years people seek out specimens that are complete and “beautiful.”

Some authorities differ with this approach entirely. Even in a pressing situation, they maintain that a blessing should not be recited even over specimens whose disqualification is a [visible] blemish. Instead, [they argue,] one should use them without reciting a blessing, merely as a remembrance, so that the concept of esrog should not be forgotten.107

In certain places, it is customary to follow the first [and more lenient] view. In these countries108 we follow the latter view with regard to all the disqualifying factors, except for a dried-out lulav and myrtle twigs. For if one would not be able to recite a blessing over [such species] in a pressing situation, a blessing would never be recited over the mitzvah of lulav, since fresh lulavim and myrtle twigs are not commonly found in these countries.

24 It is customary in these countries to recite a blessing over dried-out lulavim and myrtle twigs even when there are other fresh ones available in the town. The rationale for this custom is that even those that are called fresh are not entirely fresh, but are merely somewhat moist. Thus those that are called fresh are very similar to those that are dried out. By contrast, wherever there are specimens that are actually fresh,109 one should not recite a blessing on dried-out specimens, even if they are not entirely dried out but are somewhat moist.

If one transgressed and recited a blessing on such specimens, it could be argued that one must recite a blessing again over fresh ones. After all, [the Sages] granted license to recite a blessing over dried-out species only in a pressing situation, and when the situation is not pressing, one cannot fulfill his obligation [with dried-out specimens] even after the fact. Here, since the blessing could have been recited over fresh specimens, this individual did not fulfill his obligation when he used dried-out ones. Nevertheless, since the dried-out specimens were not entirely dried out, it may be said that he fulfilled his obligation after the fact. Therefore, he should use the fresh specimens without reciting a blessing. If, by contrast, one recited a blessing over specimens that are entirely dried-out in a place in which fresh specimens are available, he did not fulfill his obligation and he must recite a second blessing over the fresh species.