Pesachim 36b -How D'rabonons impact D'oraysa

There are many areas of halacha where an issur drabonon can potentially impact a doraysa and the question is whether the Torah regards an issur drabonon to be permitted, or as an issur. For example the braisa says that just as one cannot be yotzei matzah with bikurim since it can't be eaten בכל מושבות, one should also not be yotzei with maaser sheini. Rashi explains that since maser sheini, once brought into yerushalayim can not be taken out to be redeemed, there is no heater to eat it בכל מושבותיכם therefore one should not be able to be yotzei their mitzvah of matzah. Rashi points out that the issur to take it back out and redeem it is only drabonon yet it would be a Torah recognized issur and prevent maser sheini from being regarded as something that can be eaten בכל מושבותיכם. Tosafos on 38a d.h. aval says this exact point in their second answer.

Similarly, when the gemara 35b says that one can't be yotzei matzah with tevel that is only tevel drabonon, rashi explains that the problem is מצוה הבאה בעבירה implying that even an issur drabonon will be regarded as an aveira and prevent the mitzvah doraysa from being fulfilled. However, the maharsha points out that an issur drabonon can qualify as an aveira for מצוה הבאה בעבירה but apparently not for the concept of מי שאיסורו משום בל תאכל חמץ לבדו that rashi quotes on the top of 35b from ravina on top of 36a.

A similar idea is found in Tosafos 29a d.h. ein, that an issur drabonon of not being able to redeem kodshim to feed to dogs can cause there not to be an issur doraysa of meila. Tosafos explains דכיון דאמרו רבנן אין פודין לא שויא מידי. However, Rashi 7a needs the concept of hefker beis din to explain why an issur hanaah drabonon would prevent kidushin doraysa. From the fact that rashi doesn't say simply that once the rabbonon don't permit benefit it is essentially worthless, implies that rashi holds an issur hanaah drabonon isn't considered worthless by the Torah.

Pesachim 27b - No Wood To Burn...

The gemara explains that the source for R. Yehuda that chometz must be burned rather than using other methods of destruction is a kal v'chomer from Nosar. The Rabbonon respond to R. Yehuda that if the source is going to be a kal v'chomer from no'sar (rather than a ma matzinu), chometz must be an absolute chumrah. However, here the chumra is a chumra that will lead to a kulah - לא מצא עצים לשרפו יהא יושב ובטל והתורה אמרה תשביתו שאור מבתיכם - If one doesn't have wood do burn chometz they will end up not burning it and be in violation of tashbisu.

Many Meforshim ask, that if one doesn't have wood to burn it they will be mevatel, thereby avoiding any problems. Why does the gemara assume that it will lead to a kulah since on a Torah level being mevatel the chometz is sufficient? Because of this question the kolbo (on of the rishonim) proves that chometz that one is aware of cannot be batul. Bitul is a special method that only works for chometz that one is unaware of. This approach can certainly not fit with Tosafos 21a (mentioned on this blog) who holds that for chometz that one is unaware of there is no violation of בל יראה ובל ימצא even without bitul. According to Tosafos biutl is only necessary for chometz that one is aware of, so it must be that bitul even works on chometz that one is aware of.

The Tzlach explains that according to Tosafos 12b who says that R. Yehuda demands burning only after the z'man issur, but prior to midday on erev pesach one can destroy chometz however they choose, there is no question. The Rabbonon are saying to R. Yehuda, after midday on erev pesach when one can no longer be mevatel (since it is already assur b'hana'ah) and you R. Yehuda insist on burning, it will lead to a leniency because one who doesn't have wood will not be able to fulfill tashbisu by destroying their chometz. 

Another approach is that according to Tosafos 4b that bitul is not learned from tashbisu, rather it is a method of hefker, the Rabbonon may be saying to R. Yehuda that if one would not have firewood they could not perform the mitzvas aseh of tashbisu. They can certainly rid themselves of chometz using bitul or other methods of destruction, but they would not fulfill the mitzvah of tashbisu. However, according to Rashi 4b who says that Tashbisu is the source of bitul, and Rashi on 12b who says that after the z'man issur one can use any method of destruction it would seem that bitul is a perfectly legitimate way to fulfill tashbisu prior to the z'man issur and other methods are fine after the z'man issur, so what is the Rabbonon's question on R. Yehuda?

The Tzlach explains that Rashi on 4b who says that bitul is learned from tashbisu goes according to the Rabbonon that chometz can be destroyed in any method one chooses, therefore bitul can also be a fulfillment of tashbius. But, according to R. Yehuda who insisits on burning, bitul is not a fulfillment of tashbisu.

Pesachim 25a - Refuah from Asheira Wood

The gemara says that in a situation of sakanas nefashos one is allowed to derive benefit from all items that are forbidden to benfit from i.e. orlah and kilei ha'kerem, but not from asheira wood. Although the gemara thinks originally that for pikuach nefesh one should be able to use asheira wood, the maskana rejects that. It seems that originally the gemara assumed that the issur to save one's life by doing avoda zara is only when they would be worshiping avoda zara, but here where they are merely benefiting from the avoda zara without worshiping it, the gemara thought that one would not have to give up their life to avoid that. The conclusion is that even to avoid benefiting from the asheira one would have to sacrifice their life.

The questions remains: Why? Why does one need to give up their life to avoid benefiting from avoda zara and not just for worshiping avoda zara?

Tosafos says that we are speaking about a case where the refuah element is not associated with the type of tree or anything physical, rather it comes from it being an avoda zarah tree. Since another tree of the same type that is not an avoda zara tree would not work, there is a concern that one will be drawn into the worship of avoda zarah since his life was saved using its powers. It would seem from Tosafos that this is a Rabbinic extension demanding יהרג ואל יעבור because using the avoda zara would inevitably lead to worshiping the avoda zarah. According to Tosafos, if one were using the physical components of the tree which just happens to be avoda zara, there is no concern.

The Ran has a different approach. He understands that included in the issur of avoda zara is the worshiping of avoda zara וכל אביזרייהו. Just as by גילוי עריות one must give up their life to avoid even the אביזרייהו of giluy arayos, avoda zara would be the same. By using avoda zara for refuah, one would be in violation of לא ידבק בידך מאומה which would be an איזרייהו דעבודה זרה, therefore one must give up their life to avoid it. The Ran holds that any la'av that is specific to avoda zara (or one of the big 3 aveiros), even one that you aren't חייב מיתה for it, you must give up your life.

Rashi seems to have a third approach. Rashi writes that using avoda zara to heal oneself is נראה כמודה בה, looks like you are agreeing and recognizing it, therefore one must avoid that even at the expense of their life. Rashi is difficult to understand. Is this concept of נראה כמודה בה an actual issur of avoda zarah? It sounds like some form of מראית עין where people will think that you are are recognizing the avoda zara even though you aren't. Why would one have to give up their life for that? 

It seems to me that this can be explained based on the sugya in Sanhedrin 61b where Abaye and Rava argue whether avoda zara מאהבה ויראה qualifies as avoda zara. Abaye focuses on the persons actions and therefore holds that you are chayev, whereas Rava focuses on the mindset and says that since you don't accept it as a GOD and are only doing it out of fear or intimidation, you are patur. Even Abaye admits that in a situation where one is not at all accepting the avoda zara as a G-d such as standing in a church bowing down to an idle but thinking he's in a shul bowing to Hashem, it doesn't even qualify as a shogeg of avoda zara - אי קסבר בית הכנסת הוא והשתחוה לו, הרי לבו לשמים. Rashi points out that even if one were standing in a beis avoda zara, well aware of where he is and bows down with intent to Hashem, there is no punishment for worshiping avoda zara. Clearly we see that avoda zara is not violated by action alone. It is only violated when one intends to accept it as a god.

Being that avoda zara is only violated when one intends to worship, why do we ever require יהרג ואל יעבור by avoda zara? Why don't we just tell the person to have in mind to serve Hashem? Clearly, the obligation to sacrifice one's life is not just to avoid the technical violation of avoda zara. Doing an action that seems like avoda zara, even בצנעה with no one watching  is a violation of ואהבת את ה' אלקיך for which one needs to sacrifice their life as we learn from בכל נפשך. Here too, Rashi is saying that since using asheira gives the impression of being מודה בה, even if no one is watching, one must give up their life. The din of יהרג ואל יעבור for avoda zara is not to avoid an issur avoda zarah, it is to avoid a violation of ואהבת את ה' אלקיך. Any connection to avoda zara that chazal deem a violation of אהבת השם one must give their life to avoid.

Pesachim 24b - Ta'am Ki'ikar

At first the gemara thinks that consuming the juice of fruits of orla is not a normal way to eat the fruit and therefore qualifies as שלא כדרך הנאתו. The gemara concludes that the rationale to permit fruit juice of orla is permitted because we regard the juice as being זיעה בעלמא - sweat of the fruit without the real taste and therefore isn't considered to be eating the fruit of orla.

Tosafos asks a fundamental question. We pasken that טעם כעיקר is d'oraysa (unlike Rashi in chulin). How could the fruit juice be any less significant than ta'am ki'ikar? Tosafos leaves the question unanswered.

The gemara says in Brachos that one makes a shehakol on fruit juice because it isn't considered the fruit, rather just זיעה בעלמא just as the gemara says in the context of orlah. However, in Brachos 39a the gemara says that on vegetable soup (beat soup) one would make a בורא פרי האדמה. Tosafos writes that there is a difference without articulating the difference. The Rosh (18) explains that the vegetable soup has the taste of the vegetable and therefore deserves the same bracha as the vegetable. But the juice of a fruit doesn't have the taste of the fruit. The Rosh then adds - ואפשר שאם בישל הפרי ונכנס טעם הפירות במים מברך עליהן בורא פרי העץ. The Rosh seems to understand that the cooked juice of the fruit contains the full flavor of the fruit, whereas squeezing out the cold juice doesn't capture the full flavor.

The Rashash indicates that this is also the rationale for why we don't forbid the juice of orlah fruits based on ta'am k'ikar. Although if one would cook the fruit, the full taste of the fruit would come into the water therefore it would be included in the issur orlah, but without cooking the fruit we would not give the juice a status of the fruit based on ta'am k'ikar.

It seems that the ואפשר of the Rosh, implying that he isn't entirely convinced, is entertaining the possibility of the distinction between fruits and vegetables. Perhaps only by vegetable soup would we say that one makes a borei pri ha'adama, but a fruit soup would be she'hako, not ha'eitz. However, the Rosh leans toward the approach of not distinguishing between fruits and vegetables. Therefore, any water in which the fruit or vegetable was cooked in would obtain the bracha status of the fruit or vegetable.

The Rashba (cited in divrei chamudos) considers the distinction to be whatever is normal and regular to be eaten that way. Fruits are eaten by eating the fruit, not squeezing the juice and not making a soup, therefore if one would either squeeze out the juice or cook a soup with it, the bracha would be she'hakol. But, vegetables which are routinely cooked and turned into a soup, the bracha would be ha'adama. Based on this approach, there is no difference between cooked soup and squeezing a fruit, either way the taste may be significant, but since its not a normal way to eat the fruit the bracha would be she'hakol. According to this approach, it remains difficult to understand why fruit juice of orlah would not be אסור מדאורייתא based on the concept of טעם כעיקר.

Pesachim 23a - Doing Business with Prohibited Foods

In the discussion trying to prove whether the language of "don't eat" in the torah, automatically includes the prohibition to benefit, the gemara tries to prove the point from sheratzim which are permitted to receive benefit from even though it says לא יאכל (yei'achel) which is a question even on Chizkiya. The gemara answers that although the language of "yei'achel" implies an issur hana'ah, the Torah writes לכם to imply that שלכם יהא, and permit benefiting from it. To which the gemara asks, if so it should permitted to benefit from it even lichatchila, why does the braisa say that one cannot be in the business of buying and selling non-kosher animals. The gemara responds that the pasuk also says יהיו - בהוייתן יהא. The Taz in Y.D. 117:16 points out that the contradiction in the pesukim that forbids selling lichatchila, but if it comes your way you can sell it and receive benefit, is the source that one is not allowed to buy and sell prohibited foods. The gemara implies that the prohibition to do business with forbidden foods is d'oraysa, because it is derived from the contradiction in the pesukim שלכם implying its permitted and יהיו implying that its forbidden. The compromise is that it is not an issur hana'ah but an issur to do business with forbidden foods (unless one just happens to end up with it).

Tosafos d.h. amar, says explicitly that it is an issur d'oraysa. However, Tosafos limits the issur d'oraysa to include only selling items that are eatable. One can process soaps and lotions from non-kosher animals.

The Rashba (cited in Taz) disagrees and holds that the nature of this issur is only d'rabonon due to a concern that one may come to eat from it. The gemara strongly supports Tosafos against the Rashba.

Pesachim 21a - Is one in violation of owning chometz that they don't know exists?

Generally speaking we assume that בל יראה ובל ימצא have nothing to do with actually seeing or finding chometz. The braisa on 5b makes it clear that hiding chometz so that one doesn't see it, accomplishes nothing to avoid the issurim. However, in that context we only include in the issurim chometz that one is fully aware of. There is a big machlokes Rishonim (Tosafos 21a and Rosh 6b) whether one is in violation of בל יראה ובל ימצא on chometz that they are completely unaware of, even without being mevatel it.

The gemara on 21a says that if we were only told that one can leave chometz in a place where there is a חיה, that is because a wild animal has a tendency to hide the chometz, but a more domesticated animal that will not hide the chometz, rather leave it out in the open causing the violation of בל יראה ובל ימצא, we would think that it is forbidden to feed them prior to pesach. The gemara seems strange. How does the wild animal hiding the chometz help the owner avoid בל יראה ובל ימצא? Tosafos derives from here that any chometz which exists in a hidden place that the owner is unaware of is not subject to the issur of בל יראה ובל ימצא. Unlike בל יטמין which is assur because the owner knows where it is, here the owner doesn't know where it is. Based on this, Tosafos explains the question of the gemara 6b, why must one be mevatel on the night before erev pesach, just be mevatel when you find it? The gemara answers you may find it after it already became issur when it is already too late to be mevatel. Tosafos understands that the gemara knew all along that we were speaking about finding it once it has already become assur, yet being mevatel at the point when you find it would be sufficient because until you find it there is no violation and when you find it you will immediately be mevatel. To which the gemara answers that after the chometz becomes assur bitul is not longer a possibility.

However, the Rosh 6b explains that by the Torah writing לא יראה rather than  לא תראה it implies that one cannot have chometz in any area that it is fit to be seen, even if now it is not known about and not seen. Therefore, if a person was lax on bedikas chometz and found chometz on Pesach that they were not mevatel, according to the Rosh they were in violation of בל יראה ובל ימצא the entire time. Whereas Tosafos will hold that they were not in violation until they find it since they didn't know about it, and even when they find it they are not in violation so long as they are busy trying to destroy it (as tosafos writes 29b d.h. rav ashi).

According to the Rosh, the gemara 6b which suggests to be mevatel when you find it was assuming that one would find it prior to the z'man issur when bitul was still possible, to which the gemara is mechadesh that we are concerned that he will find it after the z'man issur. Therefore, without being mevatel in advance he will be in violation from the moment of the z'man issur even though he has not idea that it even exists.