Menachem wanted to become the premier supplier of lettuce for maror on Pesach, so he contacted a large number of farmers who grew lettuce – some Jewish and some non-Jewish – and entered business contracts with them.
As Pesach approached, Menachem traveled to a certain farm that was owned by a non-Jew. “Look at this lettuce,” the farmer said with pride. “Have you ever seen such a fine crop?”
Menachem examined the lettuce, and saw, indeed, that it was top quality. “The heads are truly beautiful,” he said. “I’d be happy to use one on Pesach.”
A few days later, however, Menachem heard rumors that the farmer might be a thief. Upon checking into the matter, he discovered that years ago a Jew had complained that the farmer had stolen the land from him.
Menachem decided to ask Rabbi Dayan if he could use lettuce from that farm.
“The Gemara [Sukkos 30a] says a Jew should not cut hadasim from a non-Jew’s land since it might be stolen from a Jew,” Rabbi Dayan replied after Menachem shared his concerns with him. “Stolen land belongs to its owner even if he despairs of reclaiming it. Thus, if a Jew cuts the hadasim, he would be stealing from the rightful owner, and the hadasim would be disqualified as mitzvah haba’ah ba’aveirah.
“If the non-Jew, however, cuts the hadasim,” Rabbi Dayan said, “the Jew can acquire the hadasim when they are subsequently transferred to his possession under the rules of yei’ush v’shinui reshus.” [Orach Chayim 649:1]
“I assume the same would apply to lettuce for maror and wheat for matzah?” Menachem asked.
“The Magen Avraham [473:14] cites the Mahari Weil [#193] who notes that R’ Anshel raised this question and remained uncertain about the answer,” replied Rabbi Dayan. “However, the Mahari Weil says the two aren’t similar since a hadas stays in the ground, and therefore is like the land, whereas maror does not stay in the ground.”
“The Magen Avraham,” continued Rabbi Dayan, “interprets the Mahari Weil to mean that the maror is therefore considered detached, even while it is growing.
“The Magen Avraham, however, rejects this argument since anything attached to the ground is considered like the ground – certainly things rooted in the ground like maror. He suggests that perhaps Mahari Weil really was discussing fully grown maror that was ready to be picked and that the Mahari Weil maintains that produce that is ready to be detached is considered detached.” [see Choshen Mishpat 95:2, 193:1]
Rabbi Dayan added: “The Chasam Sofer [Orach Chayim 473; Responsa Orach Chayim 128] argues further that since the produce grows from the non-Jew’s efforts, they are considered his even if the land may be stolen. A tree, in contrast, grows on its own and endures and may have already been on the ground when the non-Jew stole it and therefore does not belong to the non-Jew. [Pischei Choshen, Geneivah 6:16]
“The wheat, in any case, is ground into flour, baked, and changes form, so there is no concern,” Rabbi Dayan said. “Therefore, you can market the lettuce and even pick your own head if it’s fully grown.”