Wednesday, March 04, 2009

Baba Kama 67a - Mitzvah haba'ah b'aveira

There is a major machlokes that tosafos quotes between rabbeinu tam and the r"i regarding the concept of מצוה הבאה בעבירה. Tosafos introduces this by asking a question on u'lah who learns from a pasuk that a korban that is gazul is pasul, from which u'lah derives that yi'ush isn't ko'neh, yet elsewhere u'lah holds that yi'ush is koneh. Rabbeinu Tam holds that yi'ush is ko'neh, but it will not be fit for hakrava in the beis hamikdash due to the problem of מצוה הבאה בעבירה. The R"I disagrees and maintains that if yi'ush qualifies as a kinyan in and of itself, there is no problem of מצוה הבאה בעבירה, because the problem of מצוה הבאה בעבירה only applies when the kinyan is connected to the mitzvah, but if one acquired the object prior to the performance of the mitzvah, it is not a problem of מצוה הבאה בעבירה.
The R"I proves his point that if the acquisition would proceed the mitzvah there would not be a problem of מצוה הבאה בעבירה from the gemara in succah 30a that suggests that a shinuy ma'aseh or shinuy ha'shem to acquire the hadas would circumvent the problem of מצוה הבאה בעבירה. How would Rabbeinu Tam deal with this, since according to him there should be a problem of מצוה הבאה בעבירה even if he acquires it prior to the fulfillment of the mitzvah? The steipler (succah 21) suggests that a shinuy is not merely a kinyan, but rather it is viewed as an entirely new object - פנים חדשות באו לכאן. Therefore, if one was to be ko'neh only through yi'ush (if yi'ush alone worked), that would be nothing more than a kinyan where rabbeinu tam will maintain that there is a problem of מצוה הבאה בעבירה. But when he is koneh in conjunction with a shinuy, it is viewed as an entirely new object and therefore not considered a מצוה הבאה בעבירה. Based on this approach, the halacha in shulchan aruch (649:1) that if one stole a lulav and made a shinuy in it, he can be yotzei his mitzvah, would be even according to rabbeinu tam.


Anonymous said...

So according to R'Tam, yeush works, the item is 100% mine and yet I still cannot bring it as a korban. What if there one stole, there was then yeush can you use that item to be mekadesh a woman (if kiddushin is a mitzbah) or is this also now a mitzvah haba b'aveira?

Avi Lebowitz said...

you are raising a very interesting point.
the concept of mitzvah haba'ah b'aveira is that one does not get "points" for performing the mitzvah. However, when one would make a monetary acquisition, it would be binding. Now, if that monetary acquisition is also a mitzvah, i think that the acquisition would be binding, but there would not be any points or credit for doing the mitzvah. Perhaps kiddushin is different in that the act of kiddushin is really a hechsher mitzvah of p'ru u'rvu, so the fact that the kiddushin is binding would be sufficient to fulfill the mitzvah of p'ru u'rvu when they eventually have children. But, as far as credit for the act of kiddushin, he would not get credit for that since it is a mitzvah haba'ah b'aveira.

Avi Lebowitz said...

i can prove that a monetary transaction is binding even though there is a mitzvah - the aspect of mitzvah haba'ah ba'aveira would only prevent the kiyum of the mitzvah, but would not prevent the transaction from being binding. Tosafos says that even according to rabbeinu tam that the animal cannot be sacrificed after hekdesh, the actual hekdesh is binding. The shita mikubetzes (rabbeinu yeshaya) asks, how can the hekdesh be binding, it is a mitzvah haba'ah ba'aveira. Clearly, tosafos is not concerned with this question because tosafos holds that even though the act of being makdish the animal is a mitzvah haba'ah b'aveirah, the hekdesh is still binding. The same would be with being mekadesh a woman, the act of kiddushin would still be binding.