Implied Question: When the Befraisa later in Perek Lulav va'Aravah (Daf 43a) Darshens "Lachem", 'to preclude an Esrog that is borrowed or stolen' ...

Answer: The Pasuk is needed for a borrowed one, since we learn a stolen one with out "Lachem", since it is 'a Mitzvah ha'Ba'ah ba'Aveirah'.

Clarification: Because even though the Pasuk is written in connection with a Korban, it applies equally to all Mitzvos, since it is d'Oraysa ...

Source: As is evident at the beginning of 'ha'Gozel Kama' (Bava Kama, Daf 94a) in connection with 'Someone who stole a Sa'ah of wheat, ground it, baked it and separated Chalah from it, this is not a B'rachah but rather makes Hash-m angry'.

Question #1: Later (on Daf 31b) the Gemara declares Pasul a Lulav from an Asheirah and from an Ir ha'Nidachas because 'Its Shi'ur has been cut'; Why not give the reason of "Mitzvah ha'Ba'ah ba'Aveirah'?

Question #2: Furthermore, why does the Gemara there permit an Asheirah that is not from the time of Moshe?

Answer: Because it is not comparable to theft, where the Mitzvah that he is fulfilling is a direct result of the theft ...

Answer (cont.): Can we likewise claim that one is Yotzei the Mitzvah on account of the sin?

Question: Some Sefarim however later (on Daf 35a), have the text in connection with the an Esrog of an Asheirah in the Mishnah 'Why is that? Because it is a "Mitzvah ha'Ba'ah ba'Aveirah"?

Answer: This is an erroneous text however, and the real reason is because 'Its Shi'ur has been cut', seeing as an Esrog too, requires the Shi'ur of a wallnut or of an egg.

Implied Question: And even though the Gemara later (on Daf 31b) attributes the reason (for the P'sul) to the fact that 'the Esrog is not yet fully-grown' ...

Answer: Nevertheless it must also be recognizable when it is taken, which is the reason that the Gemara later (on Daf 35a) invalidates peppers.

Question: The question remains however that in Perek Kol Sha'ah (Pesachim, Daf 35a) the Beraisa which declares not Yotzei somebody who eats Matzah of Tevel - learns it from a Pasuk ...

Question (cont.): Why does not ascribe it to 'Mitzvah ha'Ba'ah ba'Aveirah', since he is Yotzei the Mitzvah through the performance of an Aveirah (See Mesores ha'Shas)?

Question #1: The Gemara in 'Merubeh' (Bava Kama, Daf 66b), precludes 'Gazul' because the Torah writes "Korbano", whereas here it precludes it from "Lachem"?

Refuted Answer: And even though there is an opinion there that establishes the Gemara by someone who steals his friend's Korban, the Kashya remains according to those who do not?

Question #2: Furthermore, the Gemara there implies that before Yi'ush does not require a Pasuk, since it Darshens "Korbano", 'and not Gazul', and on the question how it speaks, it comments 'If it is before Yi'ush, why would one need a Pasuk?'

Question #3: Moreover, the Gemara in the first Perek of Chulin (Daf 5a & 5b) Darshens "Mikem", 've'Lo Kulchem' - to preclude a Mumar (an apostate): "Mikem", 'ba'chem Chilakti, ve'Lo be'Umos'?

Refuted Answer: And even though one could say that the Gemara here cites the beginning of the Pasuk, and it is actually learning from "Korbanchem" at the end of the Pasuk - as Rabeinu Tam explains in connection with "Lo Sischaten" at the end of 'ha'Omer' (Kidushin, Daf 68b & 69a) ...

Refutation: This is not at all implied!

Answer: When the Gemara in 'Merubeh' asks why before Yi'ush needs a Pasuk, it is because before Yi'ush it is not possible to declare the animal Hekdesh, and it remains Chulin ...

Source: As the Gemara rules - 'Someone who steals prior to Yi'ush, neither is able to declare (the animal) Hekdesh, since the Torah writes "A man who is Makdish his house"; just as his house belongs to him ... ', as the Gemara states there (Daf 68b) ...

Source (cont.): And even those who argue, only argue with regard to the owner, but as far as the Gazlan himself is concerned, he concedes that he is not able to declare it Hekdesh.

Implied Question: And the reason that it cites here the Pasuk "Mikem", even though he learns it from "Beiso" ...

Answer: This is the way of the Gemara ...

Answer (cont.): That it cites "Mikem" because had the Torah not written "Beiso", we would have established "Mikem" for that D'rashah ...

Answer (concl.): However, now that the Torah writes both these Pesukim, "Mikem" is superfluous, to learn from it 'Mumar' and 'Bachem Chilakti ... '

Precedent #1: Similar to this we find in Perek Echad Dinei Mamonos (Sanhedrin, Daf 34a & 34b) where it Darshens 'Nega'im by day' from the Pasuk "u've'Yom Hera'os bo" ...

Precedent #1 (cont.): Whereas in the first Perek of Mo'ed Katan (Daf 8a) it establishes it with regard to a Chasan - that there are days that one examines and days that one doesn't

Precedent #1 (concl.): And 'by day', the Gemara learns from"ke'Nega Nir'ah Li" , 've'Lo le'Ori'.

Precedent #2: And similarly in the second Perek of Megilah (Daf 20a & 20b) where the Gemara learns that one may only circumcise by day', because the Torah writes "ba'Yom ha'Shemini" ...

Precedent #2 (cont.): Whereas in Perek Rebbi Eliezer de'Milah (Shabbos, Daf 132a) the Gemara learns "ba'Yom", 'even on Shabbos', and it precludes 'nighttime' from the Pasuk "ben Shemonas Yamim".

Conclusion: And there are many such examples throughout Shas.

Clarification: And it therefore falls under the category of "Lachem", 'mi'she'Lachem'. This implies that Rebbi Yochanan holds 'Yi'ush is Koneh'.

Question #1: According to Rebbi Yochanan in Merubeh (Bava Kama, Daf 68b), the Chiyuv to pay four or five times (for Shechting or selling a stolen animal) applies both before and after Yi'ush ...

Question #1 (cont.): And if Yi'ush would acquire, why would he be Chayav, seeing as is Shechting or selling what belongs to him?

Precedent: Since Rav Sheishes there (earlier on Daf 67b) asked the same question on Rav, when he exclaimed 'Rav must have been asleep when he made this statement!'

Question #2: Moreover, Rebbi Yochanan, in 'ha'Gozel Basra' (Ibid, Daf 115a) in the name of Rebbi Yanai specifically states that 'Shinuy R'shus followed by Yi'ush is not Koneh'?

Answer #1: Consequently, there are some texts that read 'ha'Kanyeih', and no more.

Answer #2: But even if the text adds the word 'be'Yi'ush', one can explain it to mean 'with Yi'ush and Shinuy ha'Shem' ...

Source: Like the Gemara says in 'Merubeh' (Ibid., Daf 67a) 'The Hekdesh of a Ganav and of a Gazlan is valid'.

Question #1: In that case, why did Abaye ask Rabah that 'Yi'ush is Koneh' - since the Torah writes "Korbano", 've'Lo ha'Gazul'?

Question #1 (cont.): And why did Rabah 'push' to establish it where he stole his friend's Korban? Mah Nafshach, he acquires it there, seeing as there is Yi'ush and Shinuy ha'Shem

Question #1 (concl.): And the reason that it is nevertheless Pasul is on account of 'Mitzvah ha'Ba'ah ba'Aveirah', as the Gemara explains here?

Question #2: And one can likewise ask on Rava, who, at the end of the Sugya there (Daf 67a), extrapolates that 'Yi'ush on its own is not Koneh' from "Korbasno", 've'Lo ha'Gazul' ... and on Ula, who learns it from 'Cazul' similar to 'Pise'ach' (lame), which cannot be rectified?

Answer: If Yi'ush on its own would be Koneh, then it would belong to him before he declared it Hekdesh, in which case it would be his before becoming Hekdesh, and it would no longer be considered a 'Mitzvah ha'Ba'ah ba'Aveirah'.

Proof: And this is evident later in the Sugya, in connection with those dealers, when it asks 'Why do they not acquire them (the Aravos) with Shinuy ha'Shem?'

Proof (cont.): Implying that if they would, they would be permitted to be Yotzei with them, and that it would not be considered a 'Mitzvah ha'Ba'ah ba'Aveirah'.

Answer (cont.): Whereas if 'Yi'ush alone is not Koneh, and they only acquire it because of Yi'ush plus the Shinuy ha'Shem that follows, it would be considered a 'Mitzvah ha'Ba'ah ba'Aveirah'.

Implied Question: And when, throughout the entire Sugya, it does not consider it a 'Mitzvah ha'Ba'ah ba'Aveirah' there where he has already acquired it ...

Answer #1: It is possible to say that he acquired it beforehand via the binding, even according to those who maintain that binding is not essential, since he acquired it before Yom-Tov, at a time when the obligation to fulfill the Mitzvah had not yet taken effect.

Answer #2: Or even on Yom-Tov, since it is not comparable to 'Makdish', where the Kinyan and the Hekdesh take effect simultaneously (See Maharam).

Implied Question: And when, in 'ha'Gozel Basra (Ibid., Daf 114a), in connection with the Machlokes between Rebbi Shimon and the Rabanan - concerning the skins of a Ganav and a Gazlan Ula, as to whether S'tam Geneivah is Yi'ush Ba'alim or S'tam Gezeilah ...

Implied Question (cont.): Ula states that 'Their Machlokes is confined to S'tam, but where it is known (that the owner was Meya'esh), they both agree that he is Koneh' ...

Answer: That speaks where there was Yi'ush together with Shinuy ha'Shem ...

Source: As the Gemara says there, in the Sugya in Merubeh (Daf 66b) - 'Initially it was called "a skin", whereas now it is called "a cloth on which one eats".

Implied Question: And when the Gemara at the beginning of 'ha'Gozel Kama' (Ibid., Daf 94a), in the case of 'Someone who stole a Sa'ah' implies that even though Shinuy is Koneh, it is considered a 'Mitzvah ha'Ba'ah ba'Aveirah' - in spite of the fact that he acquired it with a Shinuy Ma'aseh before it had reached the stage of Chiyuv Chalah ...

Answer #1: That is merely a rejection (not a genuine answer).

Answer #2: Alternatively, it is different when it concerns a B'rachah, since it also involves mentioning Hash-m's Name.

Conclusion: With this explanation one can also resolve the Sugya in 'ha'Nizakin' (Gitin, Daf 55a), where Ula says 'Whether it (a stolen Chatas) is known or not, it does not atone', as well as the Sugya in 'ha'Gozel Basra' and in 'Merubeh'.

Alternative: Rabeinu Tam explains it differently, due to the Kashya from Ula on to Ula.

Reference: Tosfos dwelt at length on this matter in 'Merubeh' (Daf 57a DH 'Amar') and in Perek ha'Nizakin (Ibnid., Daf 55a

Clarification: Exclusively here, where it is only mi'de'Rabanan, Shmuel is not concerned about 'Mitzvah ha'Ba'ah ba'Aveirah.

Clarification: In other words, the Gazlan does not acquire it via Yi'ush in any form ...

Clarification (cont.): Since it is always in the Chazakah of the owner, as we learn from Pesukim in 'ha'Gozel Basra' (Bava Kama, Daf 117b & 118a), as Rashi explains - and he is right ...

Clarification (concl.): Because if Yi'ush would be effective by Karka, what difference would the fact that it cannot be stolen make? Before Yi'ush, he would not acquire it even if it could be stolen; after Yi'ush, he would acquire it with Yi'ush?

Proof: And this is also clear from our Sugya, (Daf 31b) regarding the Machlokes Rebbi Eliezer and the Rabanan. who argue over a stolen Sukah, which the Rabanan declare Kasher because 'Karka Einah Nigzeles', and it is a borrowed Sukah - and one is Yotzei in one's friend's Sukah ...

Proof (cont.): Now if this is speaking before Yi'ush, even Metalt'lin cannot be stolen! It must therefore be speaking after Yi'ush.

Refutation: One cannot bring a proof from there however - because if the Sukah was Metalt'lin, such as where he forced him out of a Sukah that was built atop a wagon or a boat, he would not be Yotzei either before Yi'ush or after Yi'ush ...

Refutation (cont.): Since we preclude it in Perek ha'Yashein (earlier, on Daf 27b), since the Torah writes "L'cha" in connection with Sukah - "L'cha" to preclude a stolen one, and before Yi'ush too, it is not considered borrowed, since stolen Metalt'lin are not in the owner's R'shus ...

Refutation (concl.): Whereas Karka does.

Question: The Beraisa in 'Chezkas ha'Batim' (Bava Basra, Daf 43b) states If he sold him a house or a field, he is not permitted to testify on it on his behalf; But if he sold him a cow or a Tallis, he is' ...

Question (cont.): And the Gemara establishes the case where Reuven sold Levi the field that he stole from Shimon, and Yehudah then claims that field is his' - Shimon cannot now go and testify on behalf of Levi, since he wants the field to revert to him.

Question (cont.): Whereas a cow and a Tallis will not revert to him anyway, seeing as it Yi'ush together with Shinuy R'shus

Question (concl.): Clearly implying that Yi'ush is not effective by Karka?

Refuted Answer: And if one wants to answer because he holds that 'Yi'ush alone is not Koneh', and Shinuy R'shus is not applicable to Karka ...

Refutation: The reason that 'Yi'ush is not Koneh' is because it came to his hand be'Isur, as the Gemara explains in 'Merubeh' (Bava Kama, Daf 64a) ...

Refutation (cont.): Whereas here with regard to Karka, the owner was already Meya'esh before the purchaser received it, just as he did by the cow and the Tallis.

Yerushalmi, Explanation #2: The Yerushalmi at the end of the seventh Perek of Kil'ayim implies that Karka is subject to Yi'ush ...

Yerushalmi, Explanation #2: When, in answer to the question that Karka cannot be stolen, Rebbi Levi answers that nevertheless Karka is subject to Yi'ush.

Refutation: It is possible however, to answer that really it is not subject to Yi'ush, and it is referring to an Isur de'Rabanan concerning Kil'ayim ...

Mishnah, Kil'ayim: Because the Mishnah says there (in Kil'ayim, 7:6) 'An Anas (someone who steals) someone's vineyard, plants seeds in it and goes away, the owner harvests it even on Chol ha'Mo'ed.

Mishnah, Kil'ayim (cont.): Up to how much must he pay the laborers? Up to a third; More than that, he harvests it normally even after Yom-Tov. From which point on is he called an 'Anas' (for the Isur Kil'ayim to take effect)? ...

Mishnah, Kil'ayim (concl.): From which point on is he called an 'Anas' (for the field to considered his, for the Isur Kil'ayim to take effect)? From the time that people forget who the original owner was'.

Yerushalmi, Text: The Yerushalmi comments 'Aba bar Ya'akov in the name of Rebbi Yochanan interprets the Mishnah - 'He is permitted to harvest it even on Chol ha'Mo'ed. Up to how much must he pay the laborers (to remove the Kil'ayim)? Up to a third. Rav Huna and Rav Sheishes argue - one of them says up to a third more than the regular rate; the other, up to a third of the value of the grapes and the produce' ...

Yerushalmi, Text (cont.): 'From when is he called an Anas? From the time that people forget who the original owner was' - 'Rebbi Acha said "From the time the owner is forgotten, but the owner has not yet been Meya'esh, they are Asur min ha'Torah; If the owner has been Meya'esh, but the has not been forgotten, they are Asur mi'de'Rabanan ...

Yerushalmi, Text (cont.): Can Karka be stolen? Nevertheless, Karka is subject to Yi'ush'. Up to here is the wording of the Yerushalmi.

Explanation #1: One may harvest it even on Chol ha'Mo'ed' - On which Melachah is forbidden, other than where it will entail a loss'.

Explanation #1 (cont.): "He hires laborers' - Even if it means publicizing.

Explanation #1 (cont.): And he harvests' - The vineyard did not become Asur as a result of the Anas' having planted Kil'ayim, because 'A person cannot render forbidden something that is not his'.

Explanation #1 (cont.): And he must pay the workers up to a third of the 'S'char' - This means that he increases their wages by a third of what he would normally have had to pay them ... as Rav Huna says in the first Perek of Bava Kama (Daf 9a & 9b) 'Regarding a Mitzvah, up to a third'.

Explanation #1 (cont.): And the opinion that says 'A third of the value' - that means he pays them a third of the total value of all the fruit; more than that, he is not obligated to pay.

Explanation #1 (cont.): 'He harvests himself - and is not obligated to hire laborers even after Yom-Tov.

Explanation #1 (cont.): 'When is he called an "Anas" ' - Over the vineyard to be considered his, that it should become Asur when he plants in it?

Explanation #1 (cont.): 'From the time that people forget who the owner was' - and it becomes known as the Anas's, even though the owner has not yet been Meya'esh from it ... i.e. that he did not verbally bemoan his loss, at which point we are witnesses that he has despaired from regaining it.

Explanation #1 (cont.): And even if he says that he has not given up hope, it is like someone who screams upon hearing that his ship has sunk at sea - and it becomes Asur mi'd'Oraysa when the Anas plants in it.

Explanation #1 (cont.): Whereas if he was Meya'esh but people did not forget the original owner, it is not Asur mi'd'Oraysa, since 'Land cannos be stolen', although mi'de'Rabanan, it is (Asur).

Explanation #1 (cont.): And the Gemara queries this 'Is Karka subject to Gezeilah' - even mi'de'Rabanan?

Explanation #1 (cont.): To which it replies 'There is Yi'ush' - to become Asur mi'de'Banan on account of Kil'ayim, though min ha'Torah there is no Yi'ush, seeing as min ha'Torah it is not Asur.

Explanation #1 (concl.): But where people forgot who the original owner was, there is Yi'ush even min ha'Torah, seeing as the Isur is min ha'Torah.

Explanation #2: An alternative way explanation is: 'From when the people have forgotten who the owner was, but the owner has not yet been Meya'esh, the Isur is min ha'Torah' - not because the Anas planted there, but because he went away, leaving the vineyard to the owner, who did not root out the Kil'ayim, which increased by one two hundredth ...

Explanation #2 (cont.): Its Isur is min ha'Torah, due to the owner, whose field it still is, seeing as he was not Meya'esh, retaining the Kil'ayim.

Explanation #2 (concl.): But if the owner would have been Meya'esh, even if the people did not forget the owner, it would be only mi'de'Rabanan.

Refutation: However there are many Kashyos on this explanation, and the first explanation is the correct one.

Yerushalmi (Orlah): The Yerushalmi in the first Perek of Orlah quotes a Beraisa in the name of Rebbi Shimon ben Elazar - 'Someone who plants on behalf of the public, is Chayav, if he plants in his own domain; In the R'shus ha'Rabimn, he is Patur, like someone who steals Karka ...

Yerushalmi (Orlah [cont.]): Since when is Karka subject to theft? Rebbi Hila'i says "Even though it is not, Yi'ush applies to Karka" '.

Question #1: This entire statement is difficult however - since the Mishnah there (1:2) states that 'A Gazlan who plants is Chayav'?

Question #2: Moreover, what does the Gemara mean when it queries the Beraisa 'Since when is Karka subject to theft?', implying that because it can be stolen and is subject to Yi'ush it is Patur from Orlah?

Question #2 (cont.): On the contrary, that is precisely why he ought to be Chayav, like someone who plants in his own field?

Question #3: Furthermore, it compares someone who plants in the R'shus ha'Rabim to someone who steals Karka and plants in it, which speaks without Yi'ush, like a R'shus ha'Rabimn, to which Yi'ush is not applicable?

Answer: And if we can somehow establish it where there is Yi'ush, we will also be forced to establish it where people have forgotten who the owner is (See Maharam).

Question: But that is 'Yi'ush she'Lo mi'Da'as', since the owner is unaware of the purchaser, and we rule at the beginning of 'Eilu Metzi'os' (Bava Metzi'a, Daf 22b) that 'Yi'ush she'Lo mi'Da'as is not Yi'ush'?

Answer: It is only called ‘Yi’ush she’Lo mi’Da’as’ when the recipient receives the object before the owner knew that it was lost ...

Answer (cont.): But in this case, the owner knew that he lost it and was initially Meya'esh, only Karka is not subject to Yi'ush.

Implied Question: Even though he is Koneh mi'de'Rabanan ...

Source: As the Gemara states at the beginning of 'ha'Gozel Kama' (Bava Kama, Daf 93b), in the case where 'Someone stole sharpened wood and made it into vessels' ...

Answer #1: Since he is not Koneh mi'd'Oraysa, he is not Yotzei here.

Refutation: From the case of 'that old woman' (later on Daf 31a) it is implied, in connection with Sukah, that one is Yotzei, even though he only acquired it because of 'Takanas Marish' (demolishing the Sukah to return the beam).

Answer #2: We must therefore say that there (he acquired it because of 'Takanas Marish', whereas here, merely binding the Lulav is not subject to 'Takanas Marish', since it is easy to untie it.

Implied Question: Nor is the fact that is was cut from its source ...

Answer: Considered a Shinuy Ma'aseh, since its name has not changed - Before it was called 'Asa', and now it is called 'Asa' too.

Proof: As we find at the beginning of 'ha'Gozel Kama' (Bava Kama, Daf 96a) 'Someone who steals a palm-tree from his friend and cuts it down, even though he cast it into his own field, he does not acquire it ...

Reason: Why is that? Because before it was called a palm-tree, and now it is still called a palm-tree' ...

Answer (cont.): And this is worse that 'a permanent weakness' or 'an animal that aged' (Bava Kama, Daf 96b), which are considered a Shinuy even though they did not change their name, and one (therefore) pays their value at the time of the theft.

Answer (concl.): And the same applies to wood that one sharpened, stones that one cut to shape (Ibid., Daf 93b).

Question: Has the Gemara not just said that 'Shinuy Ma'aseh that can revert to its original state is not considered a Shinuy'? - and the same applies to Shinuy ha'Shem ...

Source: As the Gemara says in 'Merubeh' (Bava Kama, Daf 67a) in connection with 'a beam' - that 'A Shinuy that can revert to its original status, with regard to Shinuy ha'Shem, is not considered a Shinuy'?

Answer #1: The Gemara's question here goes according to Rav Yosef, who gives a different answer there.

Answer #2: Alternatively, granted, Shinuy ha'Shem which is not accompanied by a Shinuy Ma'aseh is not Koneh if it can revert to its original status - such as 'the beam', which remains as it was in the building, is not considered a Shinuy Ma'aseh' ...

Answer #2 (cont.): But here, where he bound it, it is considered a Shinuy Ma'aseh together with the Shinuy ha'Shem, in spite of the fact that it is reversible.

Question: Seeing as the 'Utzba' (cover) there (Daf 66b), is not cut to size and depends on Machshavah alone, its Shinuy is reversible, why is one Koneh it?

Answer: Because there, there is Yi'ush together with the Shinuy ha'Shem, because where there is no Yi'ush, Machshavah does not render it Tamei, as the Tana states 'Because the owner has not been Meya'esh' ...

Answer (cont.): And Shunuy ha'Shem that is reversible together Yi'ush, as we find by 'Itzba', is better than Shunuy Ma'aseh that is reversible, which is not Koneh even together with Yi'ush, as the Gemara concludes here.

Clarification: It now transpires that what the Gemara says there that 'Shinuy ha'Shem is like Shinuy Ma'aseh', makes sense ...

Question: Because how can one (otherwise) compare them, bearing in mind thatShinuy Ma'aseh alone without Yi'ush is Koneh, as is evident in many places - in 'Merubeh' (Ibid., Daf 66a) and in 'ha'Gozel Kama' (Ibid., Daf 93b) ...

Question (cont.): Whereas Shinuy ha'Shem is only Koneh together with Yi'ush, as is evident in the case of 'Utzba'?

Clarification (cont.): The answer is that 'Utzba' is reversible, but where it is not, it (Shimuy ha'Shem) is Koneh on its own.

Proof: As we see in the case of 'Someone who steals a lamb which became a ram, or a calf, into an ox, on which the Gemara asks there (Earlier, on Daf 65a) 'Let him acquire it with Shinuy ha'Shem, in which case he will not be Chayav Arba'ah va'Chamishah?'

Proof (cont.): And it answers 'A one-day-old ox is called an ox and a one-day-old ram, a ram - implying that if that was not the case, he would indeed acquire it with Shinuy ha'Shem.

Summary: What emerges is that there are a number of Dinim concerning this issue; a. Shinuy Ma'aseh and Shinuy ha'Shem that are irreversible are Koneh mi'd'Oraysa, even though the owner has not been Meya'esh.

Summary (cont.): b. Shinuy Ma'aseh that is reversible, acquires without Yi'ush - mi'de'Rabanan, as is implied in ha'Gozel Kama (Ibid., af 94b), on account of 'Takanas ha'Shavim'.

Summary (concl.): c. Shinuy ha'Shem that is reversible is not Koneh at all without Yi'ush, except for 'Marish', which is Koneh on account of Takanas ha'Shavim, and the same applies to other similar building of Karka and the like ...

Proof: As is evident in the Sugya of 'that old woman (later on Daf 31a) - who verbally protested - a sign that she was not Meya'esh, and where Rav Nachman ruled that all she was entitled to was the valuee of the wood.

Question: When, when the Gemara asked here why they did not acquire them with Shinuy ha'Shem, did it not ask the same question on the Mishnah of 'Lulav ha'Gazul' (earlier, on Daf 29b)?

Answer: Because the Mishnah may well be speaking where they stole a bound Lulav, where there is neither Shinuy ha'Shem nor Shinuy Ma'aseh.