Do You Really Own Your Lulav?

You certainly want to. And you need to. But it may not be so simple.

We all know that one of the qualities required for the mitzva of four species - at least on the first day of Succos - is legal ownership. It’s also no secret that the Gemara (Succos 30a) advised hadassim wholesalers (אוונכרי) to have their non-Jewish suppliers physically harvest the hadassim to avoid directly participating in an act of theft.

What can get complicated is figuring out exactly why, how, and where this concern applies. Digging deeper will present us with the possibility that the problem could impact all four species (and not just hadassim) and just about any location on earth.

Let’s begin with some background. The Gemara explains why it’s preferred that Jewish wholesalers are not the ones cutting hadassim from bushes;

סתם גוים גזלני ארעתא נינהו

It’s assumed that the land on which those bushes are growing was stolen either by its current or previous owners. Since, halachically, real estate can never truly change hands by way of theft (קרקע אינה נגזלת), anything attached to stolen land is considered the property of the original, rightful, owner.

Consequently, cutting the hadassim is considered the final act of the original theft: שינוי רשות. The Gemara prefers that the Jewish wholesalers avoid participating in that process, so they’re advised to get the non-Jewish suppliers to do the cutting.

However, we shouldn’t forget that, through לפני עור לא תיתן מכשול, we’re normally prohibited from enabling any sinful activity - even at the hands of non-Jews. So it seems that, while true ownership of the hadassim will be possible for the wholesaler’s Jewish customers, their mitzva will nevertheless still be tainted with at least an indirect act of theft.

Is all real estate property included in this concern? According to Rashi (Succah 30a מאי טעמא), the fear is that the land had originally belonged to a Jew. This would suggest that we’re primarily concerned about fields in Israel following the Roman conquest.

It would seem that technically at least, even modern Israeli property would face the same problem. After all, given that real estate never changes hands through theft, each field should still belong to the specific family that received it originally when Joshua divided the land. Property outside of Israel would, by contrast, be less of an issue.

However the Rema (Shulchan Aruch Orech Chaim 649:1) quotes the Or Zeruah saying that the preference that a non-Jew harvest the branches applies identically in all countries. This would suggest that all stolen fields - regardless of who their original owners might have been - are included.

This position (which appears to be the Rema’s final preferred approach) should have an interesting impact on our observance of this mitzva. First of all, hadassim are no different than any of the other species: if any of them come from land of questionable provenance, then we need to work through the supplier.

But what about, say, aravos growing in our own back yards? In that case, there’s no wholesaler and supplier to do the cutting for us. The Mechaber (649:1) seems to suggest that performing some fundamental physical change (שינוי מעשה) could permit us to take the species without a beracha, but even then only after the first day.

I suspect that this wouldn’t be a problem around Toronto where I live. As best as we can know, the Iroquois who lived around the area in the centuries leading up to European contact, built farming villages where, each summer, they primarily grew corn. Since they didn’t practice crop rotation, they would abandon villages after 10 to 30 years to search for new land. So it doesn’t seem that they ever “owned” property in halachic terms.

English settlements in the early 1790s quickly established the rule of law. John Graves Simcoe, Upper Canada’s first governor, immediately moved to introduce English common law (and outlaw slavery). Since then, land registration has been consistent and reliable.

So the theft of land in my part of the world at least was almost certainly rare enough to permit the use of locally-grown four species. Sadly, the climate doesn’t cooperate.