The Baums lived in an apartment building. The tenants stored their sukkos in a large storage room in the basement.
Right after Yom Kippur, Mr. Baum went with his sons to get their sukkah from the storage room. They carried out the wall panels, supporting beams and bundles of schach, and constructed their sukkah.
Erev Yom Tov, Mr. Weiss came to get his sukkah. He found that one of his beams was missing!
“That’s strange,” Mr. Weiss said to his wife. “I’m sure that I put back all the parts last year.”
“Was there an extra beam in the storage room?” asked Mrs. Weiss. “Maybe someone mistakenly exchanged yours with his?”
“No, the storage room was empty,” replied Mr. Weiss. “I was the last one to take my sukkah out.”
“Then buy a replacement beam or make the sukkah with what you have,” said Mrs. Weiss. “Tonight is already Sukkos!”
On Sukkos, the Baums invited the Weisses to their sukkah. Mr. Weiss identified the missing beam by a distinctive string he used last year to tie the decorations.
“When I took my sukkah out from the storage room, one of the beams was missing,” he said to Mr. Baum. “It seems that you must have taken it by mistake.” He pointed to the beam with the string.
“I remember now that one of the beams broke last year,” Mr. Baum replied. “Our sukkos were placed next to each other; one of my boys must have mistakenly taken a beam of yours.”
Mr. Weiss looked at the beam, which was supporting the schach. “To remove that beam would mean dismantling the sukkah!” he said thoughtfully.
“I don’t want to sit in a stolen sukkah, though!” exclaimed Mr. Baum. He called Rabbi Dayan and asked:
“Must I return the beam immediately?”
“A person who stole an item – even unintentionally – and it is intact, is required to return it. Nonetheless,” Rabbi Dayan continued, “Our Sages instituted that if a person stole a beam and affixed it intact in a building, it suffices to return its value instead, to encourage people to do teshuva. We consider the beam as no longer existing intact (Gittin 55a; B.K. 95a).
“However, this enactment was applied only when the beam was affixed permanently to a building attached to the ground, or in a sukkah for the duration of Sukkos, which is considered as permanent for that week (C.M. 360:1; Sma 360:5; O.C. 637:3).
“Furthermore, the person must agree to pay to be included in this enactment. Achronim write that even if he tarries with the payment, the sukkah is usable. However, if he is unwilling to pay but rather insists that he will return the beam after Sukkos, the enactment does not apply, and the sukkah is considered stolen meanwhile (Mishna Berurah 637:16. Sha’ar Hatziyun 637:22; Bi’ur Halacha s.v. yatza).
“Maharam Shick (O.C. #321) suggests that the enactment applies even during the days before Sukkos, after the thief erected his sukkah for the purpose of the holiday. He further writes that the enactment applies also to a woman who built a sukkah, even though she is not obligated in the mitzvah, since she is interested in fulfilling the mitzvah, so that takanas hashavim applies; others are doubtful about this.
“Moreover, some write that even if the thief’s sukkah collapsed on Sukkos and he wants to rebuild it, he can reuse the stolen beam, since Chazal awarded it to him in lieu of payment (Pischei Choshen, Geneivah 6:22[54]).
“Thus, Mr. Baum is not required to dismantle his sukkah; he can pay the value of the beam instead.
“If Mr. Weiss willingly allows use of the beam now, as appropriate for neighbors,” concluded Rabbi Dayan, “there is no question.”
Verdict: Chazal enacted that one who stole a beam and built his sukkah is not required to dismantle the sukkah to return the beam; he can pay its value instead. Some apply this even before Sukkos, to a woman’s sukkah, or if the sukkah fell and he is rebuilding it.
