Avoda Zara 18a - Rav Chanina Ben Tradyon

Here is a piece that I wrote a while back explaining the difference between R. Elazar Ben Porta and R. Chanina Ben Tradyon.

**********************

On another note, Rav Moshe (Igros Moshe C.M. 2:74:2) uses the story of R. Chanina Ben Tradyon's execution to learn practical halachos. The complication with the story is that the Talmidim suggest that he open his mouth to expedite his death, to which he responds that it is forbidden. Yet, he himself makes a deal with the executioner to remove the soaked wool in order to expedite his death. How can he instruct the executioner to do that? Furthermore, Rav Moshe points out that it should have been possible for him to remove the soaked wool himself, why didn't he? It must be that it was prohibited for him to remove them since it would expedite his death. According to this approach, the question is even stronger, if he couldn't do it himself, how can he instruct the executioner to do it and even raise the fire? Rav Moshe explains that the talmidim thought it is permitted for him to open his mouth since if it were already open he could maintain the status quo and keep it open, to which R. Chanina responds that he can't actively open his mouth since right now it is closed. The removal of the wool would obviously be prohibited, and even the talmidim understood that. Rav Moshe explains that he wasn't concerned with the fact that a goy would be in violation of "retzicha" - murder, since it was ultimately beneficial. R. Moshe suggests that perhaps goyim are permitted to kill when it is beneficial for the victim such as expediting the death to relieve pain, and therefore wouldn't be any kind of lifnei iver to encourage the executioner to do it. R. Moshe deduces this from the subtle difference in language of the pasuk. The prohibition on a Jew to murder is לא תרצח which implies under any circumstances, but the prohibition on the goy is שופך דם האדם - spilling blood which is to the exclusion of euthanasia for his own good. Practically, Rav Moshe deduces from here that no action can be taken to expedite death even in the case of excruciating pain, but it should follow that to allow a non-jewish doctor to do the action should be permissible (but R. Moshe doesn't clearly articulate that practically it would be permitted by a goy).

Avoda Zara 16b - 17a - Entering Churches and Reading Philosophy

The gemara tells that R. Eliezer was captured and almost killed and was reminded by R. Akiva that it was a punishment for the time where he appreciated a p'shat in a pasuk that was told to him by a "min". The punishment was for violating the pasuk in Mishlei that warns to distance oneself from "minus" - those who reject Hashem. Tosafos points out that although we find that various amora'im would frequent "bei avidan" to debate the priests, that was not a house of worship rather a place of debate and it was therefore permitted to enter.

It is well known that a Jew is not allowed to enter a church. Where does this come from? R. Moshe (Igros Moshe Y.D. 3:129:6) understands that this gemara is the source of the prohibition. However, there seems to be a more explicit source for this issur. The mishna earlier (avoda zara 11b) says that one is not even allowed to take a road to a city of avoda zara, unless the road also leads somewhere else. Rashi explains that the prohibition is because it looks like he is going to worship the avoda zara. The Rambam in his pirush ha'mishna elaborates:

ולפיכך יודע לך, שכל עיר של אומה שיהיה להם בה בית תיפלה שהוא בית עבודת כוכבים, בלא ספק אותה העיר אסור לעבור בה בכוונה וכל שכן לדור בה. אבל אנחנו תחת ידיהם בעונותינו ושוכנים בארצם אנוסים ונתקיים בנו מה שנאמר "ועבדתם שם אלהים מעשה ידיד אדם עץ ואבן" , ואם העיר דינה כן, ק"ו דין בית אבודת כוכבים עצמו שהוא אסור לנו כמעט לראותו וכל שכן ;ליכנס בו

The Rambam holds that this mishna is the source to prohibit entry into any house of worship of other religions. The Rambam says that it is "almost" prohibited to even look at these places, never mind entering them. It is well known that the Rambam regarded christianity as idoaltry (unlike tosafos 2b who writes that they goyim we live among are not idol worshipers). Even Tosafos may hold that christianity is avoda zara, just that we aren't machmir for all restrictions because the goyim we live among aren't so religious. Based on this it would clearly be assur to enter a church. Even entry into a mosque (or Islamic YMCA - :), although not strictly avoda zara according to the rambam, would at least be assur becasue it is "minus" since their system of belief and hierarchy of profits is against the Jewish tradition and undermines all Torah/Rabbinic law. Additionally, Tosafos 17b writes that one should even distance himself from the opening of a house of avoda zara. Meaning, that if there are two paths to take, one of which opens to avoda zara, one is obligated to choose the other, as the amora'im would have done (if not for the fact that the other was open to a beis zonos).

It is also interesting to see the Shiltei Ha'giborim (pages of ri"f 5b) citing the Ria"z who elaborates about the prohibition to study philosophy, particularly Aristotle and his buddies who were all kofrim as a violation of distancing from "minus". He continues to explain that one need not prove G-d's existence, nor must he be able to philosophize about G-d. He advocates אמונה פשוטה, simply believing because that is our traditio - וכן צוה עלינו רבן של נביאים ע"ה שמע ישראל ה' אלקינו השם אחד, ולא אמר להשכיל ולהתבונן בידיעת האלקים בדרך החכמה אלא להאמין היחוד על פי השמועה ועל פי הקבלה כמו שאנו מקובלין כל התורה והמצות. The Rambam clearly held differently and spent much time on the study of philosophy. There is much discussion about the translation of the Rambam's sefer hamitzvos in his first mizvah whether the mitzvah is to "believe" (which would imply blindly) or to "know" (which would imply through study). See footnote of R. Chaim Heller here.The translation of "know" - לידע, is far more consistent with the Rambam's opening of mishna torah - לידע שיש שם מצוי ראשון. The Rambam spent much time on developing belief in G-d through philosophy and considered the mitzvah of belief in Hashem to be ongoing - as one learns more they appreciate the existence of G-d more than before. The Rambam held that the study of G-d's existence is essential and demanded by the first mitzvah in the Torah, completely rejecting the notion that of אמונה פשוטה.

Avoda Zara 13a - Rabbonon Uprooting the Torah For a Good Reason

Tosafos makes somewhat of a controversial statement. The gemara asks how we can penalize one who purchased an animal in a market of avoda zara by forcing him to mutilate the animal thereby violating tza'ar ba'alei chaim. The gemara responds by citinga pasuk in Yehoshua where he did it. Tosafos asks that since tza'ar ba'alei chaim is a Torah prohibition, a pasuk in Yehoshua is not a sufficient source to permit it (had the issur only been d'rabonon so they could have permitted it here as they did by Yehoshua, but if its d'oraysa we can't learn from Yehoshua since that may have been a special circumstance where Hashem told him to do so)? Tosafos answers that although the gemara in Yevamos 90b limits the power of the Rabbonon to uproot Torah mandates to cases where it is only uprooted passively, in truth the Rabbonon have the power to even actively uproot Torah mandates. However, this power only applies to a handful of circumstances where they have good reason to do so, such as here - דודאי שיש כח בידם לעקור היכא דנראה טעם קצת לעקור. Tosafos makes a similar point in Yevamos 88a regarding the ability to believe a woman that her husband died which contradicts the Torah mandate of two witnesses, simply because there is a good reason to assume she is telling the truth - אשה דייקא ומינסבא. Also, in Nazir 43b Tosafos explains that a kohen may be metamei for his wife even if the kiddushin to her isn't recognized by the Torah based on the rationale that she is like a meis mitzvah since everyone expects the husband to care for her. Although she is not technically a meis mitzvah, the rabbonon can a uproot a din torah when they have a compelling rationale to do so.

This concept seems very difficult to accept, especially since the gemara in Yevamos 90 elaborates about the power of the Rabbonon and concludes that they only have the ability to uproot din torah when it would result in a passive violation, not an active one. Furthermore, the source of this power is unclear.

The Chazon Ish (Even Ha'ezer 21:3) explains: Originally the Torah was given to the chachamim to decide what is deemed sufficient knowledge or testimony to verify the death of a husband and permit a woman to remarry. The default would always be two valid witnesses, but if beis din would lower the standard of evidence necessary to prove beyond doubt that the husband died, that would also be acceptable. The same is true in the realm of meis mitzvah that the rabbonon are given control to determine what circumstances would qualify as a meis mitzvah because the relatives will not care for their dead as they should. Similarly, they were given the power to decide what would qualify as tza'ar ba'alei chaim, and what would be necessary for mankind to impose a penalty for violating an issur.

According to the approach of the Chazon Ish the Rabbonon don't have the power to override din Torah actively. However, there are a handful of situations where the exact status is ambiguous and the Rabbonon have the authority to define the status. In other words, the Rabbonon are not permitting a woman who the Torah recognizes as still married, to remarry. Rather, they are given the authority to lower the standard of evidence necessary to determine that her husband is dead. Similarly, they don't have the authority to permit a kohein to become tamei, but they have the authority to expand the category of meis mitzvah. Similarly, they don't have the authority to permit tza'ar ba'alei chaim, but since even the Torah recognizes that the prohibition is relative to human need, they have the authority to decide what is considered an important need. But, in any situation where their isn't an ambiguous status, they don't have any authority to directly permit one to actively violate a din in the Torah.

Avoda Zara 12a - Are we concerned that a goy will treif up kosher food?

The example that Abaye uses to explain the fact that we aren't concerned that money received from those outside the city would really be avoda zara money from inside the city even though they are in such close proximity, just as we aren't concerned that when a goy cooks treif near the pot of a Jew that he would make the Jews food treif.

Tosafos understands that gemara to be saying that in truth we are concerned that the goy will exchange the treif meat in his pot with the kosher meat in the Jews pot, just that we aren't concerned that the Jew will look in the other direction and provide the goy with the opportunity to do that. Tosafos clearly assumes that if the Jew would indeed turn away, even though he looks back and should qualify as יוצא ונכנס, the food would be assur. Based on this way of learning the gemara, Tosafos is bothered why יוצא ונכנס would not work here? Tosafos offers 2 approaches: 1. The concept of יוצא ונכנס isn't that it is unnecessary to have constant supervision. It is certainly necessary to have constant supervision, just that when the mashgiach pops in and out it creates a fear on the goy as if he were there the whole time. This only would work if the goy would be caught red handed by the Jew catching him, but if the goy would have a good excuse for what he is doing and claim that he is doing it for the benefit of the Jew, יוצא ונכנס would not work. Here too, we are speaking about a case where the goy would be able to claim that he is stirring the pot to help out the Jew and wouldn't get "caught like a thief". 2. Perhaps we are speaking about a situation where the food is not owned by the Jew, so the goy would not be stealing from the Jew if he were to switch the meat.

Nevertheless, Tosafos explains that the concern that a goy would swap the kosher for the treif only applies in a situation where he is benefiting from the switch. If he has nothing at all to gain, not money nor convenience, there isn't any concern that a goy would do something just to mess up the Jew. Tosafos proves this concept from a gemara 34b - קיסתא דמורייסא בלומא וקיסתא דחמרא בארבעה לומי - we aren't concerned that a goy would mix in some wine to the Jews food since it is more expensive that the actual food so he would have nothing to gain. Based on this Tosafos says that a Jew can leave their pots at home in the hands of their non-jewish housekeepers without fear that she would treif them up since she has nothing to gain (this would only apply if she has her own pots or equipment which she can cook with. Otherwise, the gain could be that she wanted a hot lunch and cooked it in the employers pot).

Tosafos seems to hold that even if there is no gain and no loss, the goy is not suspected of doing something just to mess up the kashrus of the Jew. However, the proof of Tosafos from the gemara later is from a case where there is an actual loss since wine is more expensive. Perhaps a goy wouldn't spend money to mess up the Jew, but when there is no loss he would do it just for the sake of messing up the Jew. How does Tosafos know that even if there is no loss, we aren't concerned that the goy will try to mess up the Jew? This question is asked by R. Shlomo Eiger (y.d. 118). In truth, the Rashba in a teshuva (cited by beis yosef y.d. 118) is only matir in a situation where it would cost the goy money to mess up the jew, but not where there is no loss. But, the Rosh (on our gemara) explains that if a goy would mess up a Jew's food even when there is no gain, he could have removed a very small amount of food and added a drop of wine which would virtually have not cost. From the fact that we aren't concerned even for a drop of wine added to the food, Tosafos and the Rosh deduce that a goy will not mess up a Jew for no good reason unless he would benefit in some way from the switch.

Avoda Zara 11a - Tza'ar Ba'alei Chaim

The gemara says that they would mutilate the horses that were owned by kings upon their death so that no one else can benefit from them, as a way of showing honor to the king. Although the gemara challenges this from the perspective of darchei ha'emori, Tosafos asks why the gemara doesn't challenge this from the perspective of tza'ar ba'alei chaim. Certainly this causes excessive pain to the animals and should be considered a violation of tza'ar ba'alei chaim. Tosafos points out that although it would also seem to be a violation of ba'al tashchis, the explanation for that is clear - it is being done for a constructive purpose of honoring the king, not wasteful, and is therefore not considered ba'al tashchis. But why isn't it a problem of tza'ar ba'alei chaim? Tosafos answers that the honor of the king trumps the concern of tza'ar ba'alei chaim. Tosafos seems to understand that it is certainly a violation of tza'ar ba'alei chaim, just that the honor of the king is a more important consideration.

The Nimukei Yosef at the end of the 2nd perek in Baba Metziah explains that the prohibition of tza'ar ba'alei chaim doesn't apply when it is needed by a human being. If tza'ar ba'alei chaim was an absolute prohibition it should be forbidden to load animals and use them, and certainly to slaughter them for meat. Therefore, the Nimukei Yosef holds that the prohibition is relative to the human need - if the need of the human is greater than the pain of the animal then it is not a violation at all. The Piskei Tosafos seems to take this approach here also that tza'ar ba'alei chaim is only prohibited if there is no gain, but since it is being done for the honor of the king it isn't a violation. It seems that Tosafos would disagree with this approach to the prohibition of tza'ar ba'alei chaim from the fact that they had to answer that the honor of the king trumps tza'ar ba'alei chaim rather than saying that since it is being done to honor the king, there isn't any tza'ar ba'alei chaim.

Avoda Zara 11b - Chukos Ha'akum: Learning From The Goyim

The Rama (Y.D. 178) cites the Maharik and Ran who hold that the prohibition of chukos ha'akum only applies to customs that they have which border on pritzus, or customs that they have which are totally irrational. The reason for the prohibition is that although we don't clearly see a connection to idolatry, we are obligated to be concerned that customs that they have which cannot be explained rationally are sourced in idolatry. Even if they themselves don't realize the connection to idolatry, the custom in earlier generations may have a some connection to idolatry and is therefore prohibited. But, any customs that are rational and have a reason that is understandable, even if we are learning the behavior from the goyim, it is permitted. Based on this the Rama allows for physicians to wear uniforms which is a style of dress adapted from the goyim, but since it has a purpose of creating an feeling of respect and honor, it is permitted. With this approach, the Rama explains the heter to burn the items of a king - it is done for the honor of the king. Since it is for a rational and legitimate reason, it doesn't violate דרכי האמורי.

The approach of the Rama and leniency to allow any custom which has a legitimate reason is based on the sugya in Avoda Zara which seems to say that since burning shows the chashivus of kings, it is not considered darchei ha'emori, but completely ignores the sugya in Sanhedrin 52b which permits only things that are sourced in the Torah. Tosafos raises the contradiction between the two sugyos and concludes: There are 2 types of darchei ha'emori - 1. Things that are connected to Avoda Zara which are assur under all circumstances. 2. Things which are not connected to Avoda Zara but are considered silly customs unless we can find a legitimate source for them in our own literature - כתיבא באורייתא. The gemara in Avoda Zara originally thinks that burning the items of kings is an avoda zara related issue, and concludes that it is only "chashivusa", and not avoda zara related. This still isn't sufficient to permit it since it would just be a mundane custom that is learned from the goyim. Therefore, the gemara in Sanhedrin explains that it is written in the Torah, meaning that it is not something that we learn from them and therefore is permitted. The Gr"a (178:7) is machmir for the approach of Tosafos and therefore holds that we cannot permit anything that has a good rationale because if it is learned from the goyim it would still be darchei ha'emori. We can only permit it if: 1. it isn't connected to avoda zara. 2. it is not learned from the goyim, rather it is mentioned in the Torah or something that we would do anyway. Based on this approach, any uniform that is worn for a good reason but we adapted it from the goyim would be a problem of darchei ha'emori. It is only permitted if our wearing of it isn't taken from the goyim.

Avoda Zara 10b - Antoninus Killing His Servants

The gemara tells about Antoninus who would take along with him 2 servants when he went to visit Rebbi, one he would kill when he reached Rebbi's house and the other when he returned home. Tosafos asks how he was able to do this since murder is a violation of one of the 7 Noachide mitzvos? Tosafos strengthens their question by saying that it is forbidden even for a Jew do be involved in the murder of a goy, so aside from the question on Antoninus himself, it is a question on Rebbi how he was able to condone this activity? Tosafos offers 2 answers: 1. Antoninus was afraid that the servants would report back that he went to visit Rebbi which would be threatening to his own life, therefore they had a din rodef and he was allowed to kill them. 2. He specifically chose servants who were mosrim and minim who are considered destructive and allowed to be killed.

There is a lot to analyze in each of Tosafos answers.

The first answer of Tosafos is somewhat difficult. First of all, Tosafos seems to understand that the concept of Rodef applies even to goyim. There is a discussion in the P'rashas D'rachim (derech ha'asarim, drush sheini) of the Mishneh L'melech regarding goyim and their obligation to sacrifice their lives for the 7 mitzvos. He the Mizrachi who says that goyim are obligated to sacrifice their lives to avoid violating any of the 7 mitzvos, but adamantly disagrees and holds that a goy is not allowed to sacrifice his life to fulfill any mitzvah (even one of the big 3). However, when it comes to murder the mishna l'melech holds that since it is derived from a sevara, even a goy is obligated to sacrifice his life and not kill. However, a goy is certainly not obligated to be more strict than a Jew. The Mishna l'melech will holds that whenever a Jew would be allowed to kill to give up their life, a goy can do the same.Tosafos seems to support the opinion of the Mishne L'melech and holds that Antoninus didn't have to sacrifice his life to avoid murder, rather he was allowed to kill his servants since their existence threatened his life. Another point on Tosafos is that Antoninus was allowed to intentionally put his servants in a situation where they would be endangering his life, thereby making it permissible for him to kill them. How can he do this? Perhaps the situation was that without the protection of the guards his life would be in danger, so he was allowed to take them to protect himself, and then kill them to protect himself.

Regarding the second answer of Tosafos - The Beis Yosef (y.d. 158) holds that the halacha of "ein moridin" means that one is not required to kill them but would still be allowed to kill them. The Taz disagrees and holds that it is assur to kill those who are listed as "ein moridin". The Taz proves this from our Tosafos who uses the concept of "ein moridin" to ask how Antoninus was able to kill his servants. Clearly Tosafos holds that "ein moridin" means that it is forbidden to kill them. The Nekudas HaKesef justifies the position of the Beis Yosef. It would be forbidden to kill goyim if they fulfill the 7 mitzvos, but if they violate the 7 mitzvos and technically deserve to be punished by beis din, it is permitted to kill them. The Nekudas HaKesef points out that our Tosafos seems to disagree because Tosafos could have simply answered that Antoninus chose servants who violates the 7 mitzvos, rather than saying he chose minim. The Nekudas HaKesef reconciles the Beis Yosef with Tosafos by saying that although it was technically permitted to kill any violator of the 7 mitzvos, Antoninus had no way of being certain that someone was a violator, therefore he chose those who did more severe aveiros out in the open such as minim. Furthermore, when Tosafos says that he chose "mosrim" and "minim", Tosafos meant to include all violators of the 7 Noachide mitzvos.

Avoda Zara 6b - Lifnei Iver for a Mumar

The gemara says that לפני עור prohibits m'doraysa one to give wine to a nazir if he had no access to it by himself (תרי עברי דנהרא). Tosafos explains that this applies even if the wine would belong to the nazir. Tosafos continues that based on this it would be prohibited to give a Jew who became a mumar to avoda zara food which isn't kosher, even to pass them their own food, because he will obviously eat it. But, Tosafos qualifies that this would only be assur if they had no access to it by themselves. Tosafos at this point is not addressing the issur d'oraysa, rather paskening a din, and seems to hold that if they would have access by themselves it would be permitted to assist them in getting the issur more easily. The Ran adds that the condition of תרי עברי דנהרא which limits the issur to a case where they don't have access by themselves, is only on a d'oraysa level, but m'drabonon it would be assur anyway because one is obligated to stop fellow Jews from doing an issur so he certainly cannot assist in it. The Tiferes Shmuel on the Rosh understands that Tosafos and the Ran disagree about this point and sides with the Ran. He then points out that Tosafos and the Rosh in our sugya both seem to hold that one can give non-kosher food to a Jewish mumar l'avoda zara so long as he had access himself, yet both Tosafos and Rosh in Shabbos 3a concur with the idea that one is not allowed to assist another Jew in doing an issur?

To answer this question, the Shach (y.d. 151:6) writes that the issur d'rabonon of assisting another Jew in doing an issur (even when he has access himself) doesn't apply to a mumar. Therefore, in our sugya Tosafos holds that one can assist a mumar in doing an issur, but in Shabbos where the aveira is being done accidentally one cannot assist. The Dagul Me'rvava explains the distinction of the Shach. The fundamental distinction is not whether the perpetrator is a mumar, rather whether he is doing it intentionally. The term "mumar" applies to anyone who is intentionally violating the aveira. The prohibition against assisting in the doing of an issur only applies when the violator is violating accidentally, but when he made a decision to violate the issur AND has access without me, there is no prohibition for me to assist him in doing the issur. In other words, when the situation is תרי עברי דנהרא it is assur m'doraysa and applies whether he is violating intentionally or accidentally, but when he has access himself and the issur is only d'rabonon because one is not allowed to be מסייע ידי עוברי עבירה it only applies when it is done accidentally but not when he made a decision to violate an issur.

The difficulty with the approach of the dagul m'rvava is that the source of the issur d'rabonon to assist someone in doing an issur is as the Ran writes - שהרי הוא מחוייב להפרישו מאיסור, והיאך יסייע ידי עוברי עבירה. The obligation to stop another Jew from doing an issur should make it assur to assist him in doing an issur even if he is doing it intentionally. Just as one has an obligation to prevent another Jew from doing an issur intentionally (הוכיח תוכיח), it should certainly be prohibited to assist him? The D"M seems to understand that the logic of "since you must stop him, you cannot help him", only applies when you have the control to be successful in stopping him such as one who is violating accidentally and will stop if you tell him that it is assur. But, when one has the ability to do it anyway and will do it anyway, the obligation to stop him doesn't apply because that isn't in your control, therefore there isn't any issur to assist him in violating.

Avoda Zara 5b - Goy Keeping His Word

Tosafos asks why the prohibition of a goy to bring an animal missing a limb isn't listed in the 7 noachide mitzvos? Tosafos explains that it isn't an issur, rather an obligation to fulfill his promise and redo the sacrifice by bringing a healthy animal. Both the Mishneh L'melech (Melachaim 10)and R. Akiva Eiger (gilyon ha'shas) point out that Tosasfos only makes sense if we assume that goyim are obligated to keep their promise, but where do find ba'al ya'chel applies to goyim?

See this link for a previous discussion about this issue:

http://hearos.blogspot.com/2008/05/nazir-61b-baal-yachel-for-goy.html

The Mitzpeh L'eisan elaborates about the obligation of a non-jew to keep their promise. We find in the Midrashim that Yacov Avinu was punished for delaying his vow and was therefore punished with Eisav and the angel, and the suffering with Dina being kidnapped. Even thought the Avos kept the Torah, they certainly shouldn't be punished to such a degree for violating their promise unless they are obligated to keep their word. See also Torah Temima at the beginning of parshas Matos where he quotes a Sifri that learns out that a goy isn't included in the prohibition of ba'al yachel. The fact that we need a drasha to exclude a goy from the technical prohibition of ba'al yachel implies that he is required to keep his word.

In the linked post I pointed out that he commitment made by Har Sinai to receive the Torah can only be binding if the Jews were obligated to keep their word PRIOR to the acceptance of the Torah. See Tosafos in Shavuos 29a who asks what the point was of taking an oath to receive the Torah - כשהשביע משה את ישראל אמר להן דעו שלא על דעתכם אני משביע אתכם, they could just as easily violate the promise as they can violate the issur of idolatry? Based on the above, the question can be answered that the obligation for a human being to keep his word doesn't come from the Torah, nor does it come from the 7 mitzvos given to Noach. Rather, it is innate in the human being who was created as a נפש חיה = רוח ממללא. His very existence and ability to speak comes with the responsibility of מוצא שפתיך תשמור ועשית.

Avoda Zara 4a - Giving Mussar

The gemara says that even tzadikim are held accountable for the sins of the wicked if they fail to give them rebuke. The failure to rebuke demotes the tzadikim gemurim to the level of regular tzadikim who are not protected from tragedy, rather they are placed at the front of the line - ממקודשי תחלו. The Rama writes in Hilchos Yom Kippur (608:2) that 3 conditions have to be met to exempt a person from rebuking his friend: 1. They are violating accidentally. 2. They will continue to violate even if they are rebuked. 3. The prohibition being violated isn't explicit in the Torah (because something that is not explicit in the Torah they don't believe the rebuker that it is in fact assur, whereas something that is explicit in the Torah they presumably are familiar with the prohibition and therefore are not considered accidental violators - M.B.). However, if any of these conditions aren't met, there is an obligation to rebuke an individual until he hits or curses you, and a community at least once.

In Yechezkel 9 when the l'vush habadim is told to draw a mark on the heads of the tzadikim to protect them from the "mashchisim" that will be entering the city, the pasuk says that the destruction began with the "holy ones". The gemara explains that they should have protested. The aveiros that led to the destruction included avoda zara and many other things that are explicit in the Torah so the tzadikim should have rebuked them. Tosafos asks from the concept of מוטב שיהיו שוגגין ואל יהיו מזידין and answers that it only applies when you are certain that they won't listen. Tosafos seems to understand that if the tzadikim in the generation were absolutely certain that their rebuke would be ignored, they wouldn't be obligated to rebuke. Although the type of sins we are speaking about are sins that are explicit in the Torah, and being violated intentionally, they would not be responsible to rebuke if they knew that the violators wouldn't listen - Tosafos disagrees with the first and third condition of the Rama. Tosafos holds that so long as the second condition is met, that they won't listen, there is no obligation to rebuke.This point is already articulated by the Biur Halacha who cites the sugya in Shabbos 55 speaking in the very same context and indicates that if one is certain that he won't be listened to, he wouldn't have to rebuke even on something explicit in the Torah. However, the biur halacha suggests that this may only help to alleviate the punishment, but the mitzvah of rebuke would still be there even if one was sure that he would be ignored. But, the opinion of the Yerei'im (and Tosafos in Shabbos 55) is that when you are sure that they will not listen, even if they are violating intentionally and it is explicit in the Torah, there is no obligation to rebuke.

The Biur Halacha concludes that although there is a mitzvah to rebuke an intentional violator who will not listen, that is only if they are still for the most part religious people. There is no obligation to rebuke those who are completely void of Torah and pay no attention to any mitzvos because they are no longer considered "עמיתך". Based on this approach, Tosafos in our sugya fits with all the conditions of the Rama because the violators in Yechezkel wouldn't qualify as עמיתך so there wouldn't be an obligation to rebuke if it was clear that they wouldnt listen.

The Birkei Yosef (cited in Biur Halacha) explains that the condition of the Rama that it not be something explicit in the Torah only applies when we have the ability to forcefully implement a stop to the behavior (even if the violators don't have a change of heart) but when it won't accomplish anything, there is no mitzvah at all.

Avoda Zarah 2b - Permission to Build Beis Hamikdash

The gemara says that Persia thought that it would have better luck than Rome since Rome was responsible for the destruction of the Beis Hamikdash whereas Persia was responsible for the construction - the permission to build it was given by daryavesh (son of esther and achashveirosh). Tosafos asks why they didn't use this as their claim to their contribution and instead they used a claim of everything we did, we did for the Jews to study Torah, similar to the claim of Rome. Tosafos explains that they were looking for a claim that would describe their accomplishments throughout the generation, therefore the building of the beis hamikdash wasn't sufficient since that was a one time thing.

This can be better understood based on the Brisker Rav at the beginning of Breishis who asks what these nations were thinking by being able to pull the wool over G-d's eyes. He explains that they were indeed telling the truth - everything they did was for the Jews because everything that is done in the world is for the Jews. בשביל ישראל שנקראו ראשית. However, although ultimately it was for the Jews, they didn't do it for the Jews and therefore had no claim. Based on this we can add that the claim of permission to build the beis hamikdash was that just as they did that for the good of the Jews, so too everything else that they did was also really for the Jews. Persia felt that their claim would be more believable since they could support everything they did with the fact that they gave permission to build the Beis Hamikdash. Their mistake was that even that wasn't entirely for the benefit of the Jews. The gemara in Rosh Hashana 4a explains that daryavesh insisted that the foundation be made of wood rather than stone so that he can destroy it if the Jews rebel. Even when he gave permission to build the beis hamikdash, it wasn't whole heartedly and therefore was not a good indication that the other contributions were also for the sake of the Jews.

Avoda Zarah 2a - Business with Goyim Holiday Time

The Mishna says that 3 days before and after a holiday of avoda zara one is not allowed to have business dealings with goyim because they will be thankful to the avoda zara for their success, so the Jew is indirectly causing worship of avoda zarah. Tosafos asks how we can be lenient about this nowadays to even do business with goyim on their holidays? At first Tosafos suggest that it is permitted to prevent "eivah" - animosity and to prevent inciting tensions between Jews and goyim, but this is not sufficient because it wouldn't explain how we can take the initiative to collect from them and do business, since abstention from these activities wouldn't lead to "eivah". From the fact that we allow something like this for the purpose of eiva, indicates that the entire prohibition is only d'rabonon because we aren't matir issurei d'oraysa to prevent animosity. Rav Moshe (Igros Moshe O.C. 1:71) points out that even if the Jew will definitely cause them to worship avoda zara it isn't considered an issur d'oraysa since he is not intending to do it for this purpose and qualifies as a davar sh'eino mis'kavein.

Tosafos offers 3 approaches: 1. Goyim nowadays aren't so observant and don't attribute their success to avoda zara so it doesn't lead to worship of a.z. 2. Based on the Yerushalmi that allows it for a goy who you have a relationship with to be "machnif" him. This answer of Tosafos seems to be based on the eivah approach but even permits actively doing things to improve the relationship with goyim. 3. Rabbeinu Tam has another approach to the sugya where he explains that only providing animals for sacrifice is forbidden, but anything else is permitted.

The Meiri explains that the issur only applies to goyim who worship the celestial beings, but no longer applies nowadays. It is unclear if the Meiri is writing this for the censors or if he honestly held that this would not apply to the religions of our days i.e. islam and christianity.

Shavuos 45a - What is a Shavuas He'ses?

Rashi in the mishna writes that when the ba'al habayis makes a claim against the storekeeper that he has payed and not received the produce, the ba'al habayis swears a "shavuas heses" to collect. Rashi does the same thing on 46a by referring to the shavua in the mishna as a shavuas heses d'rabonon". Tosafos 46a and Tosafos 48a(but is on the mishna) asks that in the time of the mishna, the concept of "shavuas heses" didn't exist and was only introduced by Rav Nachman as the gemara brings on 40b. Tosafos proves this from the gemara in kiddushin 43b which uses a language of - והשתא דתקון רבנן שבועת היסת, implying that until the period of the amoraim, the concept of shavuas heses didn't exist. Actually, Rashi himself 48b says exactly like tosafos - וכשנשנית זו בימי התנאים עדיין לא תיקנו שבועת היסת כי בימי רב נחמן תקנוה. Being that rashi seems to admit that shavuas heses was first introduced by Rav Nachman for one who is kofer ha'kol, how can rashi refer to the נשבעין ונוטלין shavuos that are discussed in the mishna as a shavuas heses? The Ran at the beginning of the perek explains the opinion of Rashi that every shavua which is not d'oraysa and only d'rabonon can be called a shavuas heses. The term "heses" as defined by rashi 40b, doesn't refer specifically to Rav Nachmans institution of swearing on denying the entire amount, rather it is a language of "suma" - placing or persuading. Any shavua that is placed on the person m'drabonon is called a shavuas heses. Rashi 41a clearly indicates (as the Ran explains) that all shavuos d'rabonon are called shavuas heses, because the gemara is speaking about shavuos d'rabonon in general and rashi uses the term "shavuas heses". Therefore, the shavuos listed in the mishna of נשבעין ונוטלין were instituted by the tana'im and the shavua of kofer ha'kol was instituted by the amor'aim (rav nachman), but both can be called "shavuas heses". The Ran seems to understand that the commonality of all shavuos d'rabonon is that the chachamim so to speak convince you to swear even though the din doesn't require it, and therefore they don't involve nekitas cheifetz - holding a davar shebkdusha such as a sefer torah (as rashi writes in kesubos 88a - although tosafos 41a disagrees from the fact that the gemara doesn't mention this to be the distinction between a shavua d'oraysa and a shavua d'rabonon). Both Tosafos 41a and the Ran disagree with Rashi and hold that even a shavua d'rabonon requires a nekitas cheifetz. The Ran holds that the נשבעין ונוטלין of the mishna require nekitas cheifetz but not the shavuas heses of rab nachman, whereas Tosafos seems to hold that no shavua d'rabonon requires a nekitas cheifetz.

Shavuos 44a - Shomer Aveida Exempt from Tzedaka

I am now back from vacation and will iy"h be more consistent.

The gemara brings the machlokes between Rabba and Rav Yosef whether a finder of a lost object would have the status of a paid watchman who is responsible for theft. Tosafos discusses whether we pasken like Rabba or Rav Yosef, but explains that all agree that if a poor person would ask for tzedaka, you would be exempt from giving tzedaka during the time that you are busy caring for the lost object. The machlokes is only whether this benefit would cause the finder to assume a status of a paid watchman, or perhaps since it is not likely to happen, it wouldn't change the status of the finder.

The Maharatz Chiyus asks that the concept of osek b'mitzvah patur min ha'mitzvah only works to exempt a person from a positive commandment, but doesn't entitle him to violate a negative commandment. Tosafos in Baba Basra 8b says that by tzedaka there is a negative commandment as well and therefore doesn't qualify as a mitzvah aseh that has the reward of the mitzvah written next to it (and we are therefore able to use physical force to make him fulfill the mtizvah) - so how can we apply osek b'mitzvah to exempt him from tzedaka? I discussed this question in Nasiach B'chukecha (page 59) and quoted a brilliant answer from Rav Zalman Nechemia Goldberg. The Ramban in Kiddushin 34a says that sometimes a negative commandment only comes to support a positive one, but is fully bound by the rules of the positive mitzvah. Here too, the lo ta'aseh of tzedaka is only a support of the aseh, so when he is osek b'mitzvah and there is no aseh, there is also no lo ta'aseh applicable. But, in the context where one is actually in violation just that the beis din must decide whether they should administer punishment, since a lo ta'aseh is also violated, we don't consider this a mitzvas aseh sh'matan se'chara b'tzidah.

****************************

Tosafos assumes that according to Rav Yosef that the finder would have status of a paid watchman, he would be considered to be receiving benefit from the mitzvah. Tosafos asks why we would permit someone who swore off benefit from someone else to blow shofar for him (rosh hashana 28a), since at the time he would be exempt from tzedaka, he would be receiving a real benefit from the person he is blowing for? Tosafos answers that one who is taking care of a lost object is continuously busy with it, therefore it is likely that while he is busy, a poor man would come and ask him for tzedaka, and the benefit of being exempt would give him status of a s paid watchman. But when a person is blowing shofar for another, it is unlikely that a poor person would come at the time and therefore wouldn't be considered a real benefit.

Tosafos wrote on the previous amud that all agree that you would be exempt from giving a tzedaka while taking care of the lost object. Why does Tosafos only ask according to Rav Yosef, even according to Rabba he would be patur from giving tzedaka and benefiting? Simply, we can answer that according to Rabba who doesn't consider this common enough to render him a paid watchman, it also isn't common enough to consider it a benefit. However, perhaps the distinction is deeper. According to Rav Yosef we associate the benefit that the finder receives with the one who lost the object as he were actually paying him. Therefore, in a case of mudar ha'na'ah we should also consider the blower to be benefiting from the one who he is blowing for. However, according to Rabba, although the finder receives some benefit from the object, we don't associate this to be a benefit received from the loser to render the finder a paid watchman. Therefore, if the one would blow shofar for a mudar ha'na'ah, although we would consider the blower to be benefiting if a poor person would ask for tzedaka, this benefit is not considered to be a benefit from the one who he is blowing for and therefore permitted. Based on this, it would come out that there is a nafka minah between rabba and rav yosef if a poor person would be coming to ask for tzedaka while a mudar hana'ah is trying to blow shofar. According to Rav Yosef who must come on to Tosafos answer, you would be required to stop blowing to prevent receiving benefit, but according to Rabba we wouldn't consider this to be a benefit received from the one whom he is blowing for.