Sanhedrin 76b - The Mitzvah to Kill a Killer

The mishna lists murder among the capital punishments. In actuality they are specifically commanded to kill a murderer.

The Ramban in his additions to Sefer HaMitzvos (mitzvah 13) says that there is a specific mitzvah to not have compassion on one who murdered. The concept of the mitzvah is that Beis Din is obligated to carry out the judgement on the killer, not just as a positive mitzvah, but even as a lo ta'aseh as we find by a michasheifa.

The Brisker Rav (Hilchos Rotzei'ach) is troubled why the Ramban needs to count this as a separate mitzvah, since the Rambam (mitzvah 279) mentions this exact la'v of "lo ta'chos ei'necha a'lav" within the context of a judge not having compassion on one who committed a crime. The Brisker Rav proves from the Rambam in that he understands the nature of the issur very differently than the Ramban. In Hilchos Sanhedrin (14:3) the Rambam writes that a beis din who doesn't kill those who are chayev mi'sah are in violation of an a'seh of "u'bi'arta ha'ra" but not in violation of a lo ta'aseh. It is only by a mechasheif that we find a specific lo ta'aseh that the beis din would be in violation of if they fail to kill him. The pasuk of "lo ta'chos ei'necha" is mentioned by the Rambam in Hilchos Dayanim (20:4) in the context of their sentencing of a murderer. The beis din is not allowed to have compassion and say that a life has already been lost, so what use is there to take another life. Rather, they must overcome their misplaced compassion and sentence the murderer to death.

According to the Rambam the prohibition of "lo ta'chos ei'necha" is in the sentencing stage. That is why the Rambam places the halacha in hilchos dayanim. The violation is not by their refusal to kill him, rather by the compassion that they exhibit in the sentencing. This is also apparent from the Rambam incorporating other penalties under the same heading of this l'av, because the nature of the prohibition is not to have compassion in their sentencing. The Ramban, on the other hand considers this to be a l'av that compliments the a'seh of "u'biarta ha'ra" which applies after he is already sentenced. The Ramban holds that if the beis din fails to carry out the sentence, they are in violation of this l'av. The Ramban adds a separate mitzvah which is not counted by the Rambam, which is not to have compassion in carrying out capital punishment after it is decided.

Sanhedrin 66b - Returning a Lost Object to a Goy

The gemara says that one who returns an aveida to a goy is violating the pasuk of למען ספות הרוה את הצמאה. It may not be a mitzvah of hashavas aveida, but what is the problem with returning an aveida to a goy? Rashi explains that by doing so he is showing that the mitzvah of hashavas aveida is not important to him because it is the will of Hashem, rather because he is doing a good deed and therefore does it even for a goy.

רש"י - ומראה בעצמו שהשבת אבדה אינה חשובה לו מצות בוראו, שאף לכותי הוא עושה כן שלא נצטווה עליהם

Rashi is offering a very insightful lesson which is expounded upon by the maharal in B'er Ha'Gola (page 31 in the standard printing). The Maharal discusses the mitzvah of hashavas aveida, and explainst that according to din torah it only applies until the owner is me'yaesh (gives up hope). Surely, etiquette would dictate that one should return an object to its poor owner who really wants it back even after 12 months have past, yet the din torah is lenient that he need not do that. Sometimes the etiquette is more demanding than din torah, sometimes it is less demanding, but the point is that it is an entirely different system. The Maharal explains that etiquette is based on societal norms that constantly change and evolve, and is not based on absolute truthful logic. Din Torah isn't established based on emotions or proper social behavior, rather it is absolute logic -וכאשר ראוי לפי השכל כך ראוי לעשות. The Torah is too perfect to be distorted by societal norms and is dependent solely on the wisdom of Hashem. The emotional connection that a previous owner has to his money isn't relevant so long as that connection has been severed through yi'ush which deems it no longer belonging to him.

In light of the Maharal, we have a better appreciation of what Rashi is attempting to teach. Mitzvos are above and beyond human emotions. Particularly in the realm of bein adam l'chaveiro type mitzvos, there is a concern that one doesn't associate the actions with the will of Hashem and does them only because they feel right. This slippery slope leads to a distortion of the Torah, and a distortion of what the Torah recognizes as logical absolute truth. The Ramban in parshas ki teitzei (by shi'luach hakan) explains that many of the mitzvos that relate to compassion are misunderstood as G-d trying to show compassion. The Ramban explains that the perspective is wrong. We don't do mitzvos out of compassion, we do mitzvos because it is the will of Hashem. It may be true that adherence to mitzvos will have a positive impact on our nature and teach us to be more compassionate, but the mitzvos of the Torah cannot be reduced to acts of compassion which remain completely subjective to the whims of society. Torah and Mitzvos are far above that as being the firm will of Hashem. This is the point that Rashi is expressing. One cannot do the mitzvah of hashavas aveida to a goy because although it may be a good deed and generally proper, it indicates that he recognizes the mitzvah as nothing more than a good deed. Mitzvos cannot be perceived as good deeds, rather as the מצות בוראו, command of the creator.

Sanhedrin 74b - Kiddush Hashem

The gemara has 2 main categories when a person would have to give up their lives (based on Ran):

1. Three severe aveiros (avoda zara, arayos, murder) - The gemara implies clearly that this applies even in private and even when there is not gezeira of sh'mad. The Ran explains that this even applies when they are doing it for their own pleasure because that distinction only applies to when the requirement of giving up one's life is kiddush hashem, but not when the requirement is the severity of the issur. Even for what is considered אביזרייהו, meaning that they are connected to these three such as pleasure from arayos and avoda zara one must give up their life. The only exception within the realm of these three aveiros is when the aveira is violated passively, קרקע עולם. One is only required to give up their life to avoid an active violation, but not to avoid a passive violation.

2. All other aveiros - One must only give up their life if it is public which means in the presence (or awareness) of 10 Jews, or if it is a time of sh'mad. Even when it is done publicly, and/or a time of sh'mad there are two exemptions. First, if the aveira is violated passively, even if violated publicly at a time of sh'mad one doesn't need to give up their life. Secondly, if their purpose is for their own pleasure not just for the sake of causing a Jew to do an aveira, one doesn't have to give up their life.

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It is important to fully understand the exemption of קרקע עולם. Although the gemara only uses it within the context of permitting a public violation, not to be matir the prohibition of adultery itself, Tosafos and the Ran both understand that it would be matir even the violation of adultery. This essentially means that the rationale of קרקע עולם is not only a "matir" in the realm of kiddush hashem, but even for the big 3 aveiros which are prohibited due to their severity. What is the rationale behind this exemption? Tosafos seems to focus on the aspect of קרקע עולם being שב ואל תעשה, meaning that the prohibition is being violated passively rather than actively and understands that even murder which is violated passively (although Rav Chaim takes issue with the example Tosafos offers), would be subject to this heter. Tosafos seems to understand that when a prohibition is violated passively it is far less severe than one violated actively, and therefore doesn't demand sacrificing one's life for it. The Ran explains this somewhat differently. The Ran considers the exemption of קרקע עולם not to just be a passive violation, but a situation where it wouldn't help to give up your life because they could anyway force you to commit the prohibition. For example, when a woman is threatened to be killed if she doesn't commit adultery, she doesn't need to give up her life since they could decide to rape her regardless of her decision. The difference between the Ran and Tosafos is a hypothetical situation where a woman is being threatened to commit adultery or they will kill her, but for whatever reason they wouldn't be able to rape her against her will. According to Tosafos the exemption of קרקע עולם would apply since the issur will only be violated passively, whereas according to the Ran it will not apply since without her consent they couldn't force her to violate the issur.

I would suggest that this machlokes would be dependent on a machlokes Rashi and Tosafos how exactly to understand the logic of מי יימר דדמא דידך סומק טפי, דילמא דמא דהוא גברא סומק טפי. Tosafos holds that one cannot murder to save their life since they have no reason to assume that their life is more valuable than their friend. In a predicament of my life vs. his life, the Torah demands being passive. It follows that if the murder can theoretically be violated passively, I can commit a passive murder to save my own life. From this Tosafos extrapolates that for any passive violation one need not give up their life. Rashi on the other hand seems to explain the logic somewhat differently. Rashi understands that the exemption of וחי בהם - ולא שימות בהם, which is normally the concept that allows someone to violate an issur to save their life, doesn't apply to a situation where a life is going to be lost one way or the other. Therefore, the heter to violate an issur to save one's life doesn't apply to a situation where one is being threatened to kill. Based on the approach of Rashi, the logic of allowing oneself to be killed is not "be passive", rather the logic is that he has not heter to violate the issur of murder to save his life. It should follow that even if the issur of murder is being violated passively (which may only be theoretical), or even if the issur of adultery is being violated passively, one must still give up their life in order to avoid it. Perhaps the Ran understands like Rashi and therefore has to come up with another logic to explain the exemption of קרקע עולם, such as they could have raped her anyway.

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GOYIM AND KIDDUSH HASHEM

Sanhedrin 73a - How much is necessary to invest to save someone's life?

The gemara learns out from the fact that the mitzva of hashavas aveida would require someone to save someone's life, that the explicit pasuk of לא תעמוד על דם רעך would demand even the spending of money (which would not be required by the mitzvah of hashavas aveida). The Rosh points out that if I indeed spend money to save someone's life, he is obligated to reimburse me, but even if he can't I am obligated to spend the money in order to save him. The Rosh learns this out from the gemara on 74a which says that if the "nirdaf" (one being chased to be killed), breaks the vessels of the "rodef" (chaser) in the process of escaping, he does not have to reimburse the loss of property, but if the nirdaf breaks the vessels of someone else, he must reimburse him. This shows that a bystander isn't obligated to pay for the saving of the nirdaf at his own expense when the nirdaf has money, because if the bystander would be obligated to pay to save the nirdaf, then he doesn't deserve to be reimbursed for the vessels that the nirdaf used to save himself.

How does the gemara know that the pasuk of לא תעמוד על דם רעך demands the spending of money (even if the person wouldn't have the financial ability to reimburse)? Rashi writes that the pasuk of לא תעמוד על דם רעך says, do not stand on yourself and hold yourself back from saving someone, rather - חזור על כל צדדין שלא יאבד דם רעך. The pasuk demands to do everything that is within your power to save someone's life, even if it will cost a lot. Rav Moshe (Igros Moshe Y.D. 1:223) points out that the normal limit of how much one has to spend on a mitzvah doesn't apply here. Rashi holds that the pasuk is specifically addressing how much one has to spend and is demanding that one spend whatever necessary to save someone else's life.

From the fact that Rashi had to darshen the pasuk and interpret it to be specifically addressing the expense, Rav Moshe has an amazing insight. There is a lot of discussion regarding the limitation of 20% that we are required to spend on positive mitzvos. The Rama in Hilchos Sukkah seems to hold that it only applies to positive mitzvos, but regarding negative mitzvos there is no limit to how much one must spend to avoid doing an issur. Rav Moshe proves from Rashi that the primary distinction is not whether it is a positive mitzvah or negative one, rather whether it is violated actively or passively. If the halacha was that for any negative mitzva, even if violated passively, one would have to spend everything then there would be no need for rashi to darshen the pasuk of לא תעמוד על דם רעך to demand spending money. The very fact that he would be in violation of a negative commandment would require the spending of money. From the fact that Rashi finds it necessary to darshen the pasuk to be saying explicitly that money must be spent, the implication is that for this type of lo ta'aseh he wouldn't have to spend more than 20%. Why? It must be that Rashi holds that a lo ta'aseh that is violated passively, similar to most positive commandments, only demands a maximum spending of 20%. It is only because Rashi darshens the pasuk to be explicitly demanding חזור על כל הצדדין שלא יאבד דם רעך, that he would be required to spend more than the 20% maximum.

Sanhedrin 72b - Rodeif Kattan

The gemara says that since a rodeif doesn't require warning, even a rodeif who is a child can be killed. Based on this, a 3 year old child holding a loaded gun aimed at someone with his finger on the trigger, can be killed even though the child isn't aware of what he is doing. The question is whether this idea applies only to a rodeif who is trying to kill, due to the significance of pikuach nefesh, or would it even appy to a'rayos? Meaning, if a child or sho'teh would be trying to rape a woman, would a bystander be able to kill the rodeif to prevent violating the victim?

The Ohr Samei'ach (Rotzeiach 1:13) writes this would be dependent on what the heter is to kill a rodeif after a woman to rape her. According to R. Yehuda 83b who considers a rape victim to be life threatening since she will try to save herself and may lead to him killing her, a bystander can certainly kill the rodeif as he would be able to kill a rodeif who is trying to kill. But, according to the Rabbonon that the Torah heter to kill a rodeif after ara'yos is that the Torah cares about the degradation caused to her, this would only apply to an adult who is a rodeif, not a child (or sho'teh). The Ohr Sameiach does acknowledge that the Rambam in sefer hamitzvos (lo ta'aseh 293) explicitly writes that one may kill a child who is rodeif after ara'yos to rape her. Clearly, the Rambam understands the degradation associated with rape that entitles the bystander to take the life of the rodeif (rapist), would apply even if the rodeif is a child and that is why a bystander may kill him to protect the victim.

Sanhedrin 70a - Ben Sorer U'Moreh: Eating of Mitzvah or Issur

The mishna says that the only type of eating that qualifies him as a ben sorer u'moreh would be an optional eating, to the exclusion of a seudas mitzvah and to the exclusion of eating things that are assur. The gemara 70b clearly says that the source for eating of issur not qualifying is the pasuk which says איננו שומע בקולנו which we darshen to mean - בקולינו ולא בקולו של מקום. Rashi explains that the only type of rebellion that he can become a ben sorer u'moreh on, is when he rebels ONLY against his parents, to the exclusion of one who doesn't even listen to the voice of Hashem.

There are 2 difficulties with this gemara: 1. The source of the gemara works well to explain eating of issur, but what is the source for eating of mitzvah not qualifying him as a ben sorer u'moreh? 2. The gemara includes in eating of issur even the eating on a ta'anis tzibur which is only d'rabonon. How does the torah itself recognize an eating that is only forbidden m'drabonon as not being included in the optional eating to qualify him as a ben sorer u'moreh, since m'doraysa it is an optional eating?

Regarding the second question, the maharatz chiyus writes that according to the Rambam (hil. mamrim 1:2) that there is a mitzvah to listen to the chachamim and one who violates a d'rabonon essentially violates an issur Torah, it is understandable that the Torah can recognize even an issur d'rabonon to qualify as "issur" and not render him a ben sorer u'moreh. It is far more difficult to work this out with the Ramban in sefer hamitzvos who argues on the Rambam and holds that violating d'rabonons is not a d'oraysa violation. According to the Ramban how does the Torah recognize issurei d'rabonon to qualify as issur that wouldn't render him a ben sorer u'moreh? Perhaps the drasha doesn't come to exclude the eating of issur, rather the pasuk comes to exclude any type of rebellion that is provoked or motivated by something other than rebelling against his parents. The eating of an isssur d'rabonon is also not provoked by rebelling against his parents alone, but is also provoked by a will to rebel against the Rabbonon. This is very meduyak in the Rambam (pirush hamishna) - לפי שנאמר "איננו שומע בקולנו" ועד שלא יהיה באותו המעשה שלו אלא המרות אביו ואמרו בלבד ולא המרות התורה. The pasuk isn't just excluding rebelling against the torah, but is excluding any eating that is not JUST a rebellion against his parents such as issurei d'rabonon. This approach would work even for the Ramban who disagrees with the Rambam.

Regarding the first question, the source for mitzvah eating not rendering him a ben sorer u'moreh, the gemara says that we limit the din of ben sorer u'moreh to cases where he is likely to be drawn after it. Any eating of a mitzvah will not be likely to draw him after it to continue stealing to indulge. The rationale seems to be that since the eating for mitzvah purpose is constructive, not for indulgence alone, it will not draw him to become a glutton. However, the Rambam (hilchos mamrim 7:2) groups the mitzvah eating together with the aveirah eating and writes - נאמר "איננו שומע בקלנו" שאינו עובר באכילה זו אלא על קולם, יצא זה שעבר בה על דברי תורה או שאכלה בדבר מצוה

The Radvaz in his commentary points out that the Rambam doesn't take the simple reading fo the gemara that we are only concerned of eating that will instigate more stealing. Rather, the Rambam understands that the very same pasuk which excludes an aveira also excludes a mitzvah. As we were medayek from the Rambam on the mishnah, the pasuk teaches that he only becomes a ben sorer u'moreh when the impetus to eat is for the sake of rebellion against his parents, to the exclusion of one who does an aveira who is also motivated to violate the will of the Torah AND excludes one who eats for a mitzvah where the eating is provoked and motivated by the intention of doing a mitzvah (this would include even a mitzvah d'rabonon).

Sanhedrin 69b - Only a Son, Not a Daughter

The mishna says that only a son can become a בן סורר ומורה. The gemara quotes a braisa that really it should apply to a daughter as well because if she steals as a young girl, she is more likely to resort to prostitution as she grows older to support her expensive taste. But, since the Torah says "ben", we understand it to be to the exclusion of a daughter. The gemara seems to imply that there is no logical reason to limit the situation to a son, but that is the gezeiras ha'kasuv.

However, the Meiri writes that this situation only applies to a son, not a daughter because:

שלא הקפידה תורה אלא על מי שדרכו להמשך אחר תאוותיו ולהשתקע בהן ואין זה בבת אלא בבן

The meiri seems to hold that a son would have more of a tendency to be drawn after his desires, rather than give them up when he has no money, more than a daughter would. He seems to understand the gemara to be saying that the gezeiras hakasuv to limit it to a son is also logical, just that withou the explicit limitation we would have expanded it to a daughter as well.

The maharatz chiyus says that Rav Shimon is the one who is speaking in the braisa because he is the opinion who generally darshens טעמא דקרא and would therefore expand the issur to a girl as well. The difficulty with this approach is that R. Shimon should then darshen the reason and expand it the concept to a daughter even after the Torah explicitly says a son. Why does he limit it? Based on the Meiri we can say that the reason Rav Shimon limits it is because we have another rationale that a boy would be more prone to being drawn after his desires more than a daughter so there is a ta'am to limit just as there is a ta'am to expand, therefore we follow the simple reading of the pasuk.

Sanhedrin 65b - Doing Magic

The gemara says that מעונן refers to אחיזת עינים, meaning it refers to making something look like magic, even though it is just an illusion. Based on this, the Chochmas Adam (89:6) writes that this would include illusions such as turning a rope into a snake, or throwing a ring up and make it look like it is being spit up by someone. He continues to write:

ומזה תראה שאותן הבדחנים שעושין כדברים אלו על החתונות ונקראין טאשין שפילער, עוברים בלאו דאורייתא והמצוה לעשותן עובר משום לפני עור, ולכן מי שבידו למחות צריך למחות וכ"ש שאסור להסתכל ולראותם, אבל אם הוא גוי שעושה נ"ל דמותר לראות

Based on this it would be an issur d'oraysa to hire a Jewish magician, and certainly to be a jewish magician, but one may watch (and maybe even hire) a non-jewish magician. Perhaps the chochmas adam would permit hiring birthday party magicians who don't do any spectacular copperfield style tricks. Rashi writes that the issur is that - ומראה להם כאילו עושה דברים של פלא. It would seem from rashi that if to the average person the trick doesn't seem supernatural, it would not be a violation. See also Igros Moshe (y.d. 4:13:1) where he explains based on the teshuvos ha'rama (he tries to be work out the contradiction in the Rambam whether there is malkus for achizal aynayim by saying that there are 2 types, one through kishuf and one using some other means that is actually doing something), that אחיזת עינים doesn't refer to quick movements that merely give the illusion of tricks as the shach and chochmas adam explain. With this he justifies the minhag of using badchanim at weddings, against the p'sak of the chochams adam.

In general regarding the sorcery prohibitions discussed in the gemara, the Rambam (Hil. oved chochavim 11:16) writes that they are all nonsense and were only used as tool to gather followers - ואין ראוי לישראל שהם חכמים מחוכמים להמשך בהבלים אלו ולא להעלות על לב שיש תועלת בהן וכו' כל המאמין בדברים האלו וכיוצ"ב ומחשב בלבו שהן אמת ודבר חכמה אבל התורה אסרתן, אינן אלא מן הסכים ומחסרי הדעת ובכלל הנשים והקטנים שאין דעתן שלימה, אבל בעלי החמכה ותמימי הדעת ידעו בראיות ברורות שכל אלו הדברים שאסרה תורה אינם דברי חכמה אלא תוהו והבל

The Rambam takes a very strong position that anyone who believes in magic is essentially a fool. But the GR"A (y.d. 179:13) writes that there are many sources in shas, including our gemara where the amoraim ate the calf that they created which confirm the power of this magic. The Rambam denies this only because he was convinced by the philosophers of his time. The gr"a prefers to understand the gemara literally, not allegorically and therefore holds that the Torah forbade this types of magic even though they actually work.

Sanhedrin 63b - Saying Mumbai

My brother raised an issue a few years back, after the terrible murders in the chabad house in mumbai, India. Jews began talking about the city, and he was concerned that this was a violation of ושם אלהים אחרים לא תזכירו based on our gemara that even to refer to the city kalnavo was a problem, if not for the fact that it is an avoda zara mentioned in the Torah and therefore permitted to say. The question was presented to Rav Shternbach, and I had some thoughts of my own. I am posting both emails below.

Dear Aryeh,
Rav Shternbach read through the e-mail. He holds it isn't a problem for us to say because the Gemara is only referring to a case where it is commonly known that the name is for an avodah zara. However, in a case where the common person has no idea what the name is and it is just used to describe a day, month, or place. There in no problem. I told him that I thought you anticipated such a heter and that is why you reiterate more than once that you think it is common knowledge. 1- The information is readily available to anyone that looks into it. 2- The name was changed so recently that people know why it was changed. However, Rav Shterbach feels that only people that look into it will know this. the common person living outside India has no idea what the name is for - as Rav Moshe said "I had no idea until I read the e-mail - Did you? Ask anyone you know and see what they say." He thinks this is the real heter for the months and days of the week.
I asked him what about a person who goes to India and there everyone knows why it was named Mumbai. Is it considered common knowledge there? I didn't get a straight answer and he had to run so I will try to push him on that.
In short - he disagrees with the premise that it is well known. We don't Judge by the actual place but the general common knowledge in the world even if it is information that is easily attainable. I assume this response/svara won't excite you that much and I haven't time to re-read the e-mail to see if there are any proofs against this Sevara. I Will also Bli neder ask him if there is a Proof for this definition of the Halacha.
Let me know if you have any other follow up questions.
Kol tuv,
Tani
--
Rabbi N. Lauer

My Response:
aryeh,
regarding the sevara of r' shternbach - i think it is definitely plausible and would like to build on it. Rather than distinguishing between how many people know it is avoda zara, i think there is an additional distinction. Rashi explains in sanhedrin 63b that the city "kalnabo" was assur to say (if not for the fact that it is mentioned in the torah) because "the city is called after the avoda zara inside of it". Meaning, that it is not speaking of a case where a city is named after an avoda zara, rather it is speaking where the city is ta'fel to the avoda zara. It would be similar to the way we refer to yeshivos - like "lakewood" or "baltimore" [or washington heights :)], just the reverse. the city isn't named after the yeshiva, but in the reference you make the city is ta'fel to the yeshiva. Here too, rashi says that when you refer to the city you are in actuality referring to the avoda zara since the entire city is tafel to the avoda zara. But, in mumbai the city is not tafel to the avoda zara, it was just named after an avoda zara. For example, if they renamed New York and started calling it Jesus, it would still be permitted to refer to the city by its new name.
R' Avi Lebowitz
Jewish Study Network
Palo Alto

When I presented this to Rav Nota Greeblatt he pointed out that rashi is difficult. How did rashi know that kalnavo was called that because of the avoda zara that was inside of it? Rashi most likely didn't know the metzi'us, rather he knew the halacha that it is only assur when the reference is to the avoda zara that is IN the city, so that the entire city becomes subordinate to that avoda zara. Rashi holds that if a city was simply named the name of an avoda zara to show kavod to an avoda zara that exists somewhere else, it would not be assur to refer to the city by that name. That is how rashi knows that kalnavo must have contained an actual idol inside it, to which the entire city was referred to.

Sanhedrin 62b - Mis'aseik by Chalavim and Arayos

The gemara makes a contrast between one who is מתעסק in חלבים ועריות and one who is מתעסק in hilchos shabbos. Regarding חלבים ועריות the rule is that even a mis'aseik is chayev because he is receiving hana'ah. The principal is that although one who is misa'seik is generally exempt and not regarded as doing an issur, somehow the pleasure that they receive from the action allows us to attribute the action to them and make them liable. The gemara contrasts this to hilchos shabbos where mis'aseik is exempt because מלאכת מחשבת אסרה תורה. Tosafos raises a fundamental question, why does the gemara cite the special rule of shabbos of mi'leches mach'sheves which indicates that intent plays a more significant role in hilchos shabbos, rather than simply say that in all other issurei torah (except for when one receives hana'ah), mis'aseik is patur? Tosafos offers 2 approaches. Their second approach is that there are 2 types of mis'aseik, one which is exempt from the standard pasuk of mis'aseik but is considered mileches machsheves because he accomplished his goal (i.e. trying to pick up a vegetable thinking it was detached and then realizing that it was attached). The other which is exempt based on mileches ma'chsheves such as when one tries to pick one vegetable and ends up picking another. However, in Tosafos first approach they offer a very interesting answer:

והכי קאמר, בשבת פטור אף על פי שנהנה משום מלאכת מחשבת

Tosafos is saying that the standard exemption of mis'aseik doesn't apply to a case where one benefits, as we see by חלבים ועריות where one is chayev even as a mis'aseik because of the benefit they receive. Therefore, when one violates shabbos as a mis'aseik but receives a hana'ah in the process, they should be chayev if not for the fact that the Torah has a special requirement of mileches machsheves.

This approach of Tosafos only makes sense if we assume that the concept of שכן נהנה would apply to hilchos shabbos and be mechayev one who is mis'aseik. However, it seems that the concept of hana'ah being mechayev even one who is mis'aseik doesn't apply to hilchos shabbos. The gemara picks 2 examples of where שכן נהנה applies, both eating cheilev (animal fats) and arayos (forbidden relations) because the nature of the prohibition is an issur of receiving a forbidden benefit. Within the realm of issurei achila, the rambam considers the general concept of issur achila to be an issur hana'ah (sefer hamitzvos #187 to explain why achila and hana'ah of meat and milk aren't counted separately), just that the Torah only assurs a very specific type of hana'ah, eating. Similarly, arayos is in essence an issur of receiving pleasure from a relationship with someone off limits. It is by these types of issurim where we say that the hana'ah can make up for the lack of awareness and be me'chayev one who is misa'seik. But, in hilchos shabbos where the nature of the prohibition is an act of melacha, rather than an issur of hana'ah, why does Tosafos assume that the pleasure he receives would make up for a lack of awareness to be mechayev one who is mis'aseik?

Furthermore, R. Akiva Eiger (teshuvos) assumes that the concept of שכן נהנה would apply to wearing sha'atnez and be me'chayev one who is mis'aseik in the wearing of sha'atnez (doesn't know it is ke'laim). The Imrei Bina (Dinei Shabbos end of siman 7) asks on R. Akiva Eiger:

ולא זכיתי להבין דבריו, הא כיון דשמואל נקט רק חלבים ועריות משמע דדוקא באלו דהוי אכילת איסור דנכנס תוך הגוף ועריות שפועל כל הגוף, בזה חייב שכן נהנה ולא בשאר הנאות

The Imrei Bina assumes that it is only a certain type of hana'ah, one that affects the entire body, would qualify as שכן נהנה to be mechayev a mis'aseik. His source for this limitation is the choice of חלבים ועריות as examples. He further proves this from the Rambam in hilchos shegagos (2:7) who writes the the שכן נהנה concept applies to arayos and forbidden foods, clearly indicating that it doesn't apply to other pleasures such as one who is mis'aseik in smearing themselves with שמן המשחה, since the benefit is minor they would be exempt.

To me it seems that the Rambam is not coming to the exclusion of more minor benefits, but rather to the exclusion of cases where the nature of the issur is an issur ma'aseh, not "pleasure". The Rambam holds that only in regard to arayos, ma'achalos asuros and things similar where the nature of the issur is to prohibit pleasure or benefit, are we mechayev a mis'aseik שכן נהנה. But when the nature of the issur is not benefit, rather an issur to do something, such as melacha on shabbos, even one who receives pleasure would be exempt as a mis'aseik. This will answer his question on R. Akiva Eiger. Sha'atnez is an issur hana'ah. It is not a typical issur hana'ah because only certain types of hana'ah are assur, but it is an issur hana'ah to be warmed by the garment, therefore one who receives this hana'ah would be chayev even when they are mis'aseik.

Sanhedrin 61b - Serving Avoda Zara out of Love and Fear

The gemara quotes a machlokes between abaye and rava whether one who worships idolatry out of "love or fear" receives capital punishment. Rashi defines the situation to be a case where one is worshiping the idol because he loves someone or fears someone who is pushing him to bow to the idol, but in his heart doesn't accept the idol as a G-d. Tosafos seems to assume like rashi that the case is where the push to worship the avoda zara is the love or fear of a person. Therefore, Tosafos asks, how can rava exempt someone who worships out of fear (and kal v'chomer out of love), it should be no worse than one who is threatened with his life to worship avoda zara where we pasken יהרג ואל יעבור? Tosafos has 2 approaches: 1. Although one has to give up their life and not bow to an avoda zara (even if they will be thinking in their mind that they don't accept the avoda zara as a deity), if he does decide to bow to the avoda zara he is considered an o'nes and therefore exempt. This is consistent with the Rambam's opinion (yesodei ha'torah 5:4) that any time the din is יהרג ואל יעבורand he decides to violate the issur, he isn't killed since he is an o'nes. 2. Tosafos offers another approach which seems to assume that anytime the din is that one must be killed and not violate, he would be chayev misah if he were to violate. The gemara is speaking about a type of avoda zara that isn't typical and is only worshiped out of love or fear similar to the bowing to haman (which was out of fear for achashveirosh who commanded it), and only then would rava exempt him from mi'sah. According to this approach, any "real" avoda zara that is generally worshiped willfully, one would be killed when they worship out of fear or even threat to their life.

The Rambam (avoda zara 3:6) has an entirely different peshat in worshiping avoda zara out of "love and fear". The Rambam says that it is not an external love or fear, rather it is a love for the avoda zara itself or a fear that the avoda zara may cause you harm. The rambam writes that if the he actually accepts the avoda zara as a G-d, he is gets stoned, but if he he worships it just out of the love of IT or the fear of IT, he is exempt. The kesef mishna explains that the Rambam doesn't agree with rashi's p'shat because then the "fear" would mean fear for life, which is an o'nes and he wouldn't be chayev misah even according to abaye, as the rambam holds in hilchos yesodei ha'torah. Based on this, both the first peshat of Tosafos and the Rambam agree that one who worships out of o'nes doesn't receive capital punishment, just that the rambam considers this to be even according to abaye, whereas Tosafos would limit it to rava.

The difficulty with the Rambam's approach to "love and fear" is pointed out by the kesef mishna in the name of the Rivash, that all avoda zara is worshiped out of love of it or fear of it causing harm. That is classic avoda zara for which one is certainly chayev misah! The Rivash therefore explains the gemara similar to rashi. Regarding the question of the Rambam that even abaye should agree that o'nes is not responsible, the Rivash says that "yir'ah" doesn't mean a threat of death which would reach the level of o'nes, rather just fear of harm.

Sanhedrin 58b - 59a - Goy who keeps Shabbos or Studies Torah

The gemara says that a goy who keeps shabbos and a goy who studies Torah is chayev misah. The simple reading of the gemara seems to indicate that they actually receive capital punishment. Regarding a goy who keeps shabbos the gemara asks that it should be added in the 7 mitzvos given to Noach, to which the gemara responds that since it demands of the goy to do something active such as work, it isn't part of the list. The gemara seems to hold that for technical reasons we don't include it, but it would have the same consequence as the other mitzvos for which he gets capital punishment. Similarly, the gemara says that a goy who studies torah is in violation of either theft or adultery, both of which a goy receives capital punishment.

However, the Rambam (Melachim 10:9) holds that for both of these violations the goy doesn't receive capital punishment. The Rambam groups both the issur on a goy to keep shabbos and the issur on a goy to study Torah together. He then writes:

כללו של דבר, אין מניחין אותן לחדש דת ולעשות מצוות לעצמן מדעתן, אלא או יהיה גר צדק ויקבל כל המצוות, או יעמוד בתורתו ולא יוסיף ולא יגרע. ואם עסק בתורה או שבת או חדש דבר מכין אותו ועונשין אותו ומדיעין אותו שהוא חייב מיתה ע"ז אבל אינו נהרג

The Rambam seems to hold that these 2 things are just examples, but the same would be for other mitzvos that a goy keeps - או חידש דבר. The Rambam holds that the nature of this prohibition is not the activity of torah study or the keeping of shabbos, rather it is a fundamental issue. The 613 mitzvos are a unit and cannot be broken apart. The acceptance of some mitzvos and the rejection of others is essentially a new religion. The prohibition of a goy to accept some mitzvos and not others is essentially the start of a new religion, and therefore forbidden similar to the prohibition for jews of adding or subtracting from the mitzvos of the Torah.

What is the source of the Rambam that the goy doesn't actually receive captial punishment? The lechem mishna says that Tosafos asks on the gemaras rule that we don't find anything that is permitted for a Jew and forbidden for a goy, what about shabbos and torah? Tosafos answers that things which are mitzvos for Jews can be forbidden to goyim, it is only things which are permitted to Jews that must be permitted for goyim. The explanation for Tosafos' logic is that a goy can be stricter than a Jew, so if it is permitted for a Jew it must be permitted to a goy. But, if the nature of the prohibition on a goy is BECAUSE it is given as a special privilege to Jews, then it makes sense that it can be assur for a goy and a mitzvos for a Jew. However, the Rambam maintains that the logic of the gemara that anything permitted for a Jew should be permitted for a goy applies to shabbos and torah as well. Therefore the Rambam holds that the issur on a goy to keep shabbos and study torah cannot be a Torah prohibition, it must only be rabbinic.

The difficulty with the approach of the lechem mishna is that he understands that according to the Rambam it is only prohibited m'drabonon, which doesn't seem to be the case from the language of the Rambam or from stating the severity of the issur as a chiyuv mi'sah? It seems to me that the Rambam is bothered by Tosafos question, but answers it slightly differently. The Rambam holds that the rule of things permitted to Jews must be permitted to goyim, only applies to specific actions. Shabbos and Torah are merely examples of something a goy can do to undermine the theology of the Torah by adopting certain mitzvos and rejecting others. The prohibition is not a specific action and is not limited to Shabbos and Torah, therefore doesn't undermine the rule of whatever specific actions is permitted to Jews is forbidden to goyim.

Sanhedrin 56b - Adam HaRishon Eating Meat

The gemara learns out from the pasuk that was said to Adam, all the 7 Noachide mitzvos, implying that these mitzvos applied to Adam as well. At the bottom of the page the gemara quotes the opinion of R. Yehuda who says that Adam was only commanded against Avoda Zara, and others add cursing Hashem and dinim, implying that the first opinion holds that Adam had to keep all 7. The gemara 59b says that Adam wasn't allowed to eat meat, he was only allowed to eat vegetation, until after the mabul when Hashem allowed Noach to consume the animals. Tosafos has 2 questions on that gemara. First, why is the prohibition against eating meat not counted as one of the 7 mitzvos given to Adam? Tosafos answers that commands such as this and eating from the eitz hada'as which only applied to Adam and not for future generations don't count. Tosafos also asks, how can there be an issur of 'ever min ha'chai', that Adam shouldn't eat a limb of an animal that was separated when it was alive, since it was forbidden for him to eat any meat? Tosafos answers that Adam was allowed to eat meat. He wasn't allowed to kill animals in order to eat them, but was able to eat animals that were found dead. Therefore, the issur of ever min ha'achai was to forbid even limbs that were severed by themselves, which isn't included in the issur of eating meat.

The Rambam (Hil. Melachim 9:1) answers Tosafos question by saying that Adam was commanded on 6 of the 7 mitzvos, but ever min ha'chai wasn't introduced until Noach after the mabul. The Maharatz Chiyus points out that the Rambam is saying this to deal with Tosafos' question.

Rashi 59b seems to hold that it was forbidden for Adam to eat meat until Noach, not just assur to kill the animals as Tosafos says. Rashi 57a clearly writes that Adam wasn't allowed to eat any meat. Rashi is therefore bothered why Adam had to be commanded in ever min ha'chai since he couldn't eat any meat, to which rashi says that a limb that was severed by itself wasn't included in the issur to eat meat, but is included in ever min ha'chai. The maharsha explains that Tosafos holds that if an animal that died by itself was assur, then even a limb that was severed by itself should be assur. Tosafos had to be mechadesh that if it died by itself it was mutar, and therefore when it is severed by itself it is mutar, if not for the issur of ever min ha'chai. Whereas Rashi seems to hold that even if an animal that dies by itself is included in the issur of eating meat, a limb that was severed by itself would not be included in the issur.

The Ramban (Breishis 1:29) quotes Rashi in chumash and in our gemara that says that Adam was supposed to share all plants and vegetation with the animals, but not to eat the animals. However, the Ramban himself holds that Adam was allowed to eat fruits and even seeds, but the animals were only allowed to eat the vegetation. He agrees with Rashi that Adam wasn't allowed to consume any meat, even if it died by itself, against Tosafos. The Ramban seems to agree with the Rambam that ever min ha'chai was only introduced to Noach. The Ramban writes that when Hashem permitted Noach to kill animals and eat them, He maintained the issur on eiver min ha'chai because Adam had permission to eat the animals after they were killed, but didn't have the right to eat the nefesh itself.

The Ramban concludes with cryptic words: וזה טעם השחיטה, ומה שאמרו צער בעלי חיים דאורייתא, וזו ברכתנו שמברך אשר קדשנו במצותיו וצונו על השחיטה

The Ramban holds that the issur of צער בעלי חיים and the mitzvah of shechita are all a result of the limitation of control on the nefesh of the animal.