Chagiga 13a - Teaching Torah To Goyim

I already posted about this issue 7.5 years ago.

http://hearos.blogspot.com/2007/04/chagiga-13a-lifnei-iver-two-sides-of.html

Aside from the two points above, there is a Maharsha that takes an alternate approach to explaining why we require an independent prohibition of not "giving" Torah to a goy, and it is not sufficient to forbid it based on the prohibition for a goy to learn Torah thereby creating an issur of lifnei iver to teach it to him. The Maharsha suggests that really we are speaking about the 7 mitzvos bnei noach for which there is a mitzvah for a goy to learn so that they know how to keep them. Nevertheless, one cannot "give" or be mo'ser to the the explanation and deeper understanding behind the halachos. This seems to be consistent with the the statement in the gemara that directly proceeds this one, אין מוסרין סתרי תורה אלא למי שיש בו חמשה דברים שר חמשים ונשוא פנים וכו. Although the gemara changes from the expression of סתרי תורה to דברי תורה, it is still referring to deeper aspects of the halacha and not the simple piskei halachos. The prohibition to be מוסר דברי תורה לעכו"ם is even for the 7 mitzvos b'nei noach when one gives over to them the tools to analyze and understand the fundamentals behind it.

Moed Kattan 20a - Regel Removing Shiva

The Mishna 19a says that if one buries a relative 3 days or more prior to yom tov, yom tov removes the shiva. The mishna implies that it must be a full 3 days, as rashi explains because the first 3 days are the most intense days of aveilus (although rashi offers another approach that the 3 days are lav davka, R. Akiva Eiger points out that it doesn't fit with the gemara that assumes the 3 days of the mishna are davka). Furthermore, the mishna implies that by simply burying the deceased the shiva begins and allows regel to push it off. The mishna makes no mention of having to keep laws of aveilus prior to yom tov to enable yom tov to remove the shiva.

However, the braisa cited in the gemara 20a seems to disagree with the mishna on two points. Firstly, the braisa does not require 3 days, rather any amount of time is sufficient to consider aveilus, and the gemara confirms that is how we pasken. Secondly, the braisa gives an example of doing כפיית המטה, overturning the bed (and sitting on the overturned bed - Rashi 21a) as the case where the regel is mevtel the shiva, but it implies that if one did not do anything to demonstrate aveilus prior to regel, it would be tantamount to burying on the regel where regel is not mevatel shiva. The Rosh (siman 25) citing the Ra'avad points this out, that regel is only mevatel aveilus if one kept the aveilus prior to the regel (The Ra'avad offers a rationale of שלא יהא חוטא נשכר, implying that one should not gain by having aveilus removed if they violated the rules by not keeping it immediately. Perhaps based on this reason, if they didn't keep aveilus prior to the regel to do an o'nes then the regel would remove it. The Ra'avad writes that if one didn't keep aveilus שוגג או מזיד the regel wouldn't remove the shiva. Its unclear if he would include not keeping aveilus due to o'nes).

The Shulchan Aruch in both O.C. and Y.D. paskens like this Ra'avad that even a moment of aveilus is sufficient, but one needs to be no'heig aveilus prior to the regel. It is unclear what it means to do a קיום אבילות קודם הרגל (Ra'avad). The example in the braisa is kefiyas hamitah, which is a clear demonstration of overturning the bed. It would seem logical that עטיפת הראש would also be sufficient, because that is also a clear act demonstrating aveilus. But, it is unclear whether issurei aveilus would qualify since they are all done בשב ואל תעשה. Since Tosafos 21a d.h. eilu, writes that nowadays we don't do כפיית המטה or עטיפת הראש, it is vital to determine what else would qualify. Perhaps the Mishna that holds that it needs to be three days would include even the issurim of aveilus because over the course of 3 days it would be clear that he is abstaining from bathing and learning and shaving, but this would not be enough for one who buries their relative an hour before the regel begins. Rashi 19b gives כפיית המטה and נעילת הסנדל as examples of aveilus not applying during yom tov. He seems to assume that removing one's shoes is also a public display of aveilus and therefore inappropriate for yom tov, therefore it would seem logical that if one removed their shoes before yom tov, it would qualify as being meka'yeim aveilus (which is explicit in the Mishna Berura).

There is a strong support that abstaining from נעילת הסנדל although just an issur, is considered to be like a קום ועשה of keeping aveilus and a real demonstration of aveilus to qualify as keeping aveilus prior to Yom Tov so that the regel can remove the aveilus. In th story with R. Chiya 20b when he heard a שמועה רחוקה and needed to keep aveilus for one day, he removed his shoes to demonstrate the aveilus. The Rosh (29) writes - ואם אין לו מנעלו ברגלו, צריך שיכפה מטתו או יתעטף בראשו דבעינן שיעשה מעשה הניכר משום אבילות. It seems from the Rosh that removing one's shoes can qualify as being noheig aveilus is only when they were actually wearing shoes and by actively removing them they are being no'heig aveilus. If one did not have shoes on his feet at the time of the burial, it would not be considered being no'heig aveilus. The Rosh writes explicitly that the act of removing one's shoes being considered and active display of aveilus, only applies to removing shoes. If one were studying Torah or doing melacha and stops for aveilus, it would not qualify as being no'heig aveilus for a שמועה רחוקה. The Rosh writes - ומכל מקום אינו יצא ידי חובתו בהפסק זה עד שיעשה מעשה הניכר לאבילות. Based on this Rosh, when one needs to be mekayem aveilus prior to the regel in order for the regel to be mevatel the shiva, it is essential that they wear leather shoes for the burial and do an act of removing them afterward. If one were already not wearing leather shoes, it is unclear what alternative action can be taken to demonstrate aveilus prior to the regel since we don't do כפיית המטה or  עטיפת הראש. Perhaps sitting down on the floor would be sufficient, but it may not be since it is not a technical halacha of an avel, just a custom that we keep.

Moed Kattan 15a - Status of Things Learned from Yechezkel

The gemara learns out many halachos of Aveilus from pesukim in Yechezkel. Yechezkel was told to behave like an avel yet forgo many of the halachos demanded of an avel. We derive from this the types of things that are forbidden for an Avel. For example, Hashem tells Yechezek that he should wear tefillin, wear shoes, and not wrap his head. We learn from here that all these things are forbidden to a regular Avel, just that Yechezkel was supposed to demonstrate that later on the Jews are going to be aveilim yet no one will behave like an avel to mourn for them. The only two things that Yechezkel was told to do in order to behave like an avel was - האנק דום, from which the gemara learns out that he was forbidden in she'eilas shalom and forbidden in talmud torah.

The Rosh (end of Siman 3) writes in the name of Rashi that everything that is learned from Yechezkiel must be d'oraysa because we learn from Yechezkel that we exempt an avel from tefillin (even if it only means one day). How can a pasuk in Yechezkiel override the mitzvah d'oraysa of tefillin, unless we assume that everything learned from Yechezkiel is d'oraysa. The Rosh rejects this and says that perhaps the things that are derive from Yechezkiel are really only d'rabonon, but the Rabbonon have the authority to uproot a d'oraysa so long as it is done בשב ואל תעשה - violated passively.

Tosafos 5a already addresses the issue of whether things learned from Yechzkiel are considered d'oraysa. The gemara learns out tziyun kever, the obligation to mark of graves from pesukim in Yechezkiel, to which the gemara says - מקמי דליתי יחזקאל מאן אמר, אלא גמרא גמירי לה ואתא יחזקאל ואסמכה אקרא. This is also used to explain the source for a mumar being unable to bring a korban - כל ...ערל לב לא יבא אל מקדשי. Tosafos writes that the gemara assumes that anything learned from Yechezkiel has d'oraysa status which compels the question of how it was known prior to Yechezkiel, forcing the gemara to say that it is a halacha l'moshe misinai. On the other hand the gemara in Nida 57a (cited by R. Betzalel Ronsberg) implies that things learned from Yechezkiel are only d'rabonon, and Tosafos in Baba Basra 147a explains that the pesukim in Yechezkiel are only used as an Esmachta. There seems to be a contradiction between Tosafos in MK and Tosafos in BB whether halachos learned from Yechezkiel are assumed to be d'oraysa.

This issue is really a point of debate between the Rambam and Ramban (shoresh sheini of sefer hamitzvos). The Rambam holds that anything introduced by nevi'im after Moshe Rabbeinu is by definition only d'rabonon. The Ramban disagrees and says that there are takanos of Moshe that are only d'rabonon, and there are halachos derived from the nevi'im that are d'oraysa. The Ramban explains that anything written in the nevi'im in the form of a command, to either do or not do, is considered d'oraysa. The approach of the Ramban is that we have a principal (Megillah 2b) - אלה המצות - שאין נביא רשאי לחדש דבר מעתה. A Navi has no write to introduce a new mitvzah, therefore if a Navi seems to be introducing a new mitzvah, that is the greatest proof that it is NOT a NEW mitzvah, rather it was halacha l'moshe mi'sinai until that point. Based on this it makes sense that a kohein who serves in the mikdash pa'ruah rosh will be chayev misah, even though it is only learned from a pasuk in Yechezkiel. We also learn from Yechzekiel that bigdei kehuna need to be linen (Yoma 71b) and that one who is chayuv 2 misos beis din gets the harsher one (sanhedrin 81a). All these halachos are d'oraysa.

Paranthetically, the Ramban understands that אלה המצות sets the limitation of a navi, not only regarding when we are not to believe him, but even regarding the status of the navi himself. The Ramban in Parshas Va'eschanan writes that a Navi who introduces a new mitzvah is not only in violation of אלה המצות, but we learn from there that since he cannot introduce a new mitzvah he will automatically be in violation of bal tosif (like anyone else who adds a new mitzvah). Also, the Ramban in Parshas Re'eh writes that a Navi who attempts to introduce a new mitzvah, would automatically render himself a navi sheker since we are told that he doesn't have that ability, and therefore he would be chayev misah.

Megillah 7a - Kisvei HaKodesh Making Your Hands Tamei

I decided to write a shtikel torah b'zchus refuah sheleima of my dear friends son  who remains in a coma - נתן צבי בן שרה רבקה קשתיה. 

May Hashem grant him a Refuah Sheleima B'soch Sha'ar Cho'lei Yisroel and protect Acheinu B'nei Yisroel in Gaza.

The gemara cites a machlokes regarding Megillas Esther wether or not it making one's hands tamei. The gemara uses this din as a litmus test as to which books where canonized as part of Tanach. The gemara says that specifically for Megillas Ester would depend on whether there is a hint to the writing of it within the Torah itself. The gemara also suggests that Shir Hashirim and Koheles are questionable.

Where does this halacha of kisvei hakodesh being metamei come from and why? Rashi references the sugya in Shabbos 14a. The gemara in Shabbos says there were two independent gezeiros made on kisvei hakodesh. One was that it is metamei Terumah because there was a tendency to store the Terumah next to the Torah in the Aron Kodesh causing mice to nibble at the Torah when they went to eat the Terumah. Therefore, chazal were gozer tu'mah on the Torah that it would be metamei teruma as a way to prevent people from putting the Terumah next to the Torah in the Aron. A second gezeira that was made was that a Torah would be metamei one's hands. The rationale for this the gemara explains has nothing to do with Terumah, rather it is based on the din of R. Pranach - האוחז ס"ת ערום נקבר ערום בלא אותה מצוה. One who holds a bare Sefer Torah is punished that whatever mitzvah they were doing while holding the Torah, they lose reward for that mitzvah. Rashi explains that people's hands were generally dirty (not necessarily tamei) and they would touch the Torah with dirty hands, which is why R. Pranach said that it is assur. To prevent people from touching a Torah with dirty hands, they were gozer tu'mah on kisvei hakodesh. Since one's hands would be come tamei by touching the scroll, they would refrain from touching it.

Tosafos (Shabbos 14a) writes that the din of R. Pranach applies equally to all kisvei hakodesh from the simple fact that chazal were gozer that ALL kisvei hakodesh would make one's hands tamei. Rashi in Megilla implies that as well.

An argument can be made that since the purpose in the gezeira of tu'mah on kisvei hakodesh was to prevent touching it with dirty hands, it would only apply if one would not wash their hands. However, if one would wash their hands they would not be in violation of R. Pranach's concern, and therefore their hands would not become tamei from the Sefer Torah. This approach is the opinion of the Mordechai citing the Ravya. The Mordechai holds that washing one's hands would permit the touching of a sefer torah with bare hands. Tosafos (Shabbos 14b) rejects this approach and assumes that even if one were to wash their hands, their hands would become tamei by touching the Sefer Torah. The Rama 147:1 writes that we are lenient to rely on the Mordechai for other kisvei hakodesh, but not for a sefer torah. However, without washing hands one should not even touch other kisvei hakodesh. The Biur Halacha explains that we are only meikel for other kisvei hakodesh because even Tosafos doesn't seem positively sure that the prohibition to touch the sefer torah "arum" would apply to kisvei hakodesh.

The approach above is based on the pashut peshat of the gemara that the gezeira that kisvei hakodesh is metamei one's hands has absolutely nothing to do with the gezeira of it being metamei terumah. However, the Rambam (Hilchos Sha'ar Avos HaTumah 9:5) connects the gezeira on kisvei hakodesh being meta'mei Terumah, with the gezeira on kisvei hakodesh being metamei one's hands by writing ולא עוד אלא מי שהיו ידיו טהורות. This implies that the reason that the Rambam offers for Terumah which is the mice coming and ruining the seforim, is the source of why they were gozer on kisvei hakodesh being metamei one's hands. In his piruch hamishna to Maseches Yadayim (3:3) the Rambam writes this explicitly and fails to even mention the statememt of R. Pranach as the source. The simplest reconciliation of the Rambam is that without the gezeira that seforim are metamei teruma, chazal would never have created the concept of tu'mah on kisvei hakodesh just to prevent touching seforim with dirty hands. However, once they were gozer that kisvei hakodesh are metamei terumah, they extended the tu'mah to even be metamei one's hands to prevent touching a sefer with dirty hands violation the din of R. Pranach. The weakness in this approach is that the Rambam should have still mentioned R. Pranach, in addition to the Terumah gezeirah, yet he fails to do so. Therefore, to reconcile the Rambam with the gemara, the Nodeh B'Yehuda (Mahadurah Kamma, O.C. 7) writes that R. Pranach only applies to a Sefer Torah, and therefore requires the gezeira on Terumah to extend the tumah to all types of kisvei hakodesh. The reason the gemara cites R. Pranach is because without that there would be no concept of any sefer being metamei one's hands. But, once they were gozer on a sefer Torah because of R. Pranach, they extend it to other seforim based on the gezeirah of Terumah because if there would be a difference between seforim and sefer torah for tu'mah on one's hands, people will think that there is also a difference regarding terumah.

There is a significant difference between the Rambam's approach and the more conventional approach. According to the Rambam since R. Pranach only applies to a sefer torah, it would be permitted to touch other seforim even without washing one's hands, even though if one would touch them, their hands would become tamei (there is no issur in making one's hand tamei). Based on this he also says that according to the Rambam it would be permitted to touch the amudim of a sefer torah, because the fact that they are metamei one's hands is not an indication that there is an issur to touch them (arguing on the Magen Avrohom who holds that since the Rambam holds they are metamei one's hands, it must be assur to touch the amudim of a sefer torah). The Node B'Yehuda also proves from the language of the Rambam in the pirush hamishna that just as for stam yadayim, washing helps, it also helps to avoid the issur of R. Pranach, like the opinion of the Mordechai, against Tosafos. He points out that the Rambam in the Yad seems to have been chozer from this and holds that if one would touch a sefer after washing hands, they would still become tamei. Yet, the Nodeh B'Yehuda explains that the Rambam is only partially chozer to hold that one's hands would become tamei even if he washed them, but there would not be any issur to touch the sefer after washing one's hands because R. Pranach would not apply after washing. Therefore he is matir to touch the amudim of a sefer torah after washing one's hands. In the next teshuva he writes that if one wants to be machmir to hold the amudim with a talis he should do so in an inconcpicous way so that it is not כרמות רוחא. He also comments that one can rely on the washing in the morning to waive the issur of R. Pranach to permit touching the eitz chaim of the sefer torah.

Taanis 11a - One Who Fasts is Called a Sinner

Shmuel says that anyone who fasts is called a sinner for abstaining from the worldly pleasures that he is entitled to. The gemara draws a parallel between the statement of Shmuel regarding fasting and the statement of R. Elazar HaKafar who says that a Nazir is called a sinner for abstaining from wine. R. Elazar disagrees with R. Elazar Hakafar and holds that a Nazir is called a kadosh. The gemara assumes that just as R. Elazar says that a Nazir is a kadosh, one who fasts should also be a kadosh, and therefore asks from a statement of R. Elazar himself which implies that it is forbidden to fast. The gemra concludes that as long is someone is able to withstand the fast they are called a kadosh, as is the Nazir, but if one cannot withstand it and accepts it, it is improper (persumably because they are putting themself in a situation where they are likely not to complete the fast).

Tosafos asks that the gemara in Baba Kama implies that according to Shmuel one who fasts is not called a sinner, so how does Shmuel himself consider him a sinner? Tosafos answers that based on the kal v'chomer from Nazir who R. Elazar Hakafar considers a sinner, there is no question that one who fasts is certainly a sinner. But, Shmuel admits that the mitzvah which is accomplished through the fasting overwhelms the aveira aspect of it. Tosafos compares this with one who fasts a Ta'anis for a dream on Shabbos where the benefit offsets the loss, but there is still an aspect of aveira for which the need to do teshuva - ליתיב תענית לתעניתיה. The Gevuros Ari asks that he doesn't understand the category of an action having an aspect of Mitzvah and an aspect of Aveirah at the same time. Just as when we have an aseh pushing off a lo ta'aseh, we don't consider it to be an aveira at all because the Torah wants the mitzvah to be done at the expense of the aveira; similarly here we should consider it a pure mitzvah since the mitzvah will fully compensate for offsetting the aveira?

Before we answer the question of the Gevuros Ari, we need to understand whether Tosafos applies only to Ta'anis or even to a Nazir. When R. Elazar HaKafar says that a Nazir is a sinner, will the mitzvah aspect of being a Nazir be mixed with aveirah so that there is both? From Tosafos it seems that we only consider Ta'anis to be this hybrid of mitzvah and aveirah, but Nazir is a pure aveirah. Perhaps Tosafos is assuming like the Rashash explains that R. Elazar HaKafar is only addressing a Nazir Tamei (which is the pasuk that he quotes). For the days that preceeded his tu'mah there is an aveirah without any mitzvah because those days didn't ultimately count toward nezirus. However, for a Nazir Tahor perhaps we would consider the mitzvah to completley outweigh and over compensate for the aveira so that it is not considered an aveira at all. According to this approach, by Nazir there is no middle category of partial mitzvah, partial aveirah, where the mitzvah is bigger than the aveirah. By a Nazir Tamei it is considered a pure aveira and by a Nazir Tahor it is considered a pure mitzvah (similar to aseh docheh lo ta'aseh as the gevuros ari is suggesting). However, the Maharsha (agados) points out that Tosafos in Baba Kama seems to hold that even a Nazir Tamei according to R. Elazar HaKafar would be in this middle category where there is a hybrid of mitzvah and aveirah, just that the mitzvah is greater.

Lets return to the question of the Gevuros Ari regarding the hybrid category, and not considering the mitzvah to over compensate to the aveira to the point where the aveira virtually doesn't exist. It is true that by aseh docheh lo ta'aseh we consider the mitzvah to overcompensate for the aveira to the point where we do not consider there to be any aspect of aveira at all. However, this is only because we have a gezeiras hakasuv that we learn from Tzitzis teaching us עשה דוחה לא תעשה. To me it seems that it is more comparable to a case where we allow a greater aseh to take precendence over a lesser aseh. For example, the gemara says in Pesachim that the mitzvah of Pesach for which there is kareis overrides the mitzvah of making the Tamid shel bein ha'arbayim the last korban of the day. Perhaps in that case the lesser aseh is still considered violated and one would indeed require some amount of teshuva for that.

Taanis 7a - Learning From a Talmid Chacham Who Acts Improperly

The gemara learns from the pasuk of כי ממנו תאכל ואותו לא תכרות that if one has a Rebbi who is a proper Talmid Chacham and acts in a manner that befits a person of his stature, one should learn from him and not separate. Tosafos explains that there is no need to seek out another Rebbi (I am reminded of a story that Rav Nota Greenblatt Shlit"a once shared. He was learning by Rav Moshe and the Mashgiach in Tiferes Yerushalayim was pushing him to leave MTJ to go learn in Lakewood by Rav Aharon, which was what everyone serious in their learning would do. He explained that at the time Rav Moshe was recognized as a posek but Rav Aharon was THE Rosh Yeshiva. He turned back to the mashgiach and said - ווו איז עס געשריבן אַז הרב אהרן איז גרעסער ווי הרב משה - where is it written that Rav Aharon is greater than Rav Moshe? To which Rav Nota commented "he looked at me as if I just told him I was a nekeiva"). But if the Rebbi doesn't act properly, he should seek out a new Rebbi and not learn from this one.

Tosafos asks from Rav Meir who would go learn from Acher and answers that a Talmid Chacham may learn from an improper Rebbi, but if one is not a Talmid Chacham they may not. It is strange that Tosafos even asks the question because it is directly dealt with by the gemara in Chagiga 15a and the gemara says a Gadol may learn from an improper Rebbi, but a Kattan may not (The Gevuros Ari understands that the distinction of the gemara is between one who is over 13 and one who is under 13, which is clearly not the approach of Tosafos. Perhaps Rashi in Chagiga - גדול היודע ליזהר ממעשיו implies like the gevuros ari). It seems from the gemara and Tosafos that so long as the Talmid is a talmid chacham who is able to discern what to learn from and what not to learn from, he may continue to study from the Rebbi who is behaving improperly.

However, the Rambam and Shulchan Aruch Y.D. 246:8 writes - הרב שאינו הולך בדרך טובה אע"פ שחכם גדול הוא וכל העם צריכים לו, אין למדין ממנו עד שיחזור למוטב. The Shach asks why the Shulchan Aruch doesn't make the distinction of the gemara itself and say that a Talmid Chacham is permitted to learn from an improper Rebbi? The Shach answers we find that even some of the Talmidim found in the gemara had status of a "kattan" and were not allowed to learn from improper Rebbeim, therefore nowadays the Rambam and Shulchan Aruch are assuming that everyone would have the status of a kattan and not be allowed to learn from someone who isn't acting properly. The Gilyon Marsha adds that even a proper custom that is instituted by such a person should not be followed.

I heard recently that some poskim told the talmidim of a Talmid Chacham who committed a serious aveirah that they should disregard anything that they ever heard from him because he is not a בעל מסורה. I find this approach very difficult to accept. The only discussion we ever find in the poskim is whether one can continue to learn by this person after he had committed an aveira and goes in improper ways, however, anything that he said prior to that can be quoted. Elisha Ben Avuya is quoted in Avos 4:20 for something that he said before he went off the derech and by being quoted in Avos indicates that he was very much part of the chachmei ha'mesorah. He is also quoted in Moed Kattan 20a regarding keeping aveilus on a shemuah rechokah. Clearly, the earlier teachings of such a person cannot be disregarded. It is difficult to make a distinction between Elisha Ben Avuya where we can attribute an exact time to when he changed his ways, to another Talmid Chacham. Furthermore, the Shulchan Aruch says explicitly - עד שיחזור למוטב, meaning that once he does teshuva, one can continue to learn from him. Rabbeinu Yona in avos requires being דן לכף זכות and assuming that a Talmid Chacham who sinned would have done teshuva for his aveiros.

Rosh Hashana 33a - Women for Time Bound Mitzvos

The gemara says that the machlokes whether women are allowed to blow shofar on RH is contingent on the machlokes whether they are permitted to do semicha on a korban. The gemara is not clear what the issue would be. Rashi understands that it is a general issue of bal tosif for women to do mitzvos that they are not obligated in, whereas the Ran in Kiddushin discusses it as more specific to these mitzvos (semicha is an issue of avoda b'kodshim, and shofar is an issur d'rabonon as Tosafos writes on 29b).

The gemara presents the opinion of R. Yossi (which Tosafos holds we pasken like) to say that it is a "reshus", which implies that there is nothing wrong with them doing it, but perhaps there is no advantage either. Tosafos then develops that according to R. Yossi it isn't merely a d'var ha'reshus, but it is considered a mitzvah and enough of a mitzvah for them to even make a bracha on it. Tosafos elaborates with ra'ayos to prove that women can even make a bracha on these mitzvos.

R. Akiva Eiger in the Gilyon HaShas cites the Hagahos Ashri at the end of the third perek of Succah who disagrees. The gemara/rashi in Succah implies that a lulav and esrog is not muktzah for a woman to move because since it is needed by a man, it has the status of a keli. The Hagahos Ashri deduces from this that women would not be able to make a bracha on the lulav and esrog, otherwise the gemara should have said that it isn't muktzah for them simply because they fulfill a mitzvah with it. Although the focus of the Hagahos Ashri is to argue on Rabbeinu Tam who permits a bracha to be made, it seems clear from the proof that he cites that there isn't any aspect of mitzvah that is achieved when a woman takes lulav and esrog. If there would be any aspect of a mitzvah performed in their taking lulav and esrog, it would certainly not be muktzah even if there were not men in the world who would be obligated. Therefore, it seems that the Hagahos Ashri is two steps removed from Rabbeinu Tam, by rejecting the right to make a bracha, and the considering it to be a mitzvah.

The Rambam (Hil. Tzitzis 3:9) writes that women are exempt from tzitizs but...

נשים ועבדים שרצו להתעטף בציצית מתעטפים בלא ברכה, וכן שאר מצות עשה שהנשים פטורות מהן, אם רצו לעשות אותן בלא ברכה אין ממחין בידו

The Rambam seems to hold like the Hagahos Ashri. But, why would women and avadim "want" to do these mitzvos? Is it just a mishe'gas with no value!? It seems that the Rambam would hold that there is a mitzvah for women to perform these mitzvos, and they receive reward like an אינו מצווה ועושה, but are not allowed to make a bracha. This is how the M.B. in Hilchos Shofar (589:6) explains the position of the mechaber who says that women are patur but are allowed to blow shofar on Rosh Hashana. Even though it is considered a bit of an issur to sound the shofar, they are allowed to do it since it is considered a mitzvah for them for which they receive reward. Its well known that the Rama rules in Hilchos Tzitzis, Tefillin, Shofar and Succah like Rabbeinu Tam, but even the mechaber who rules like the Rambam would seem to consider it a mitzvah, unlike the Hagahos Ashri.

Rosh Hashana 24b - Amirah L'nachri for Other Issurim

The gemara says that there is an issur to make pictures of the moon and sun do Rabban Gamliel could not have done it himself, rather he had a goy do it for him. Tosafos assumes that he commissioned a goy to make it for him, and therefore asks that by telling a goy to make it, it should be a violation of amirah l'nachri. The Ritva says that perhaps he simply purchased it from a goy, rather than have a goy draw it for him. The reason Tosafos assumes that he actually commissioned a goy is because he needed very particular pictures to show the eidim and it would be hard to imagine that he found exactly what he needed sitting in a store.

Tosafos answers that although there is an issur of amira l'nochri to have a goy do an issur for a jew, even something that is not shabbos related, for the sake of the mitzvah it is mutar. The difficulty with Tosafos answer is that Tosafos in Gittin 8b rejects the approach of the Ba'al Ha'itur (cited in the Rama O.C. 276) who permits a shevus of amirah l'nochri for the sake of a mitzvah without any additional shevus. How is it that Tosafos assumes here that we would permit amirah l'nachri on an issur Torah for the sake of a mitzvah? The Ritva implies within the approach of Tosafos that it is only for an issur such as this, the issur to create a form of the sun and moon, that we would permit it. The Ritva most likely does not mean that the issur of making the form of the sun and moon is in some way inferior to other issurim. Rather, he means like the Rashash who says that we only require a shevus d'shevus b'makom mitzvah to permit a more severe issur such as chilul shabbos, but for a regular la'av we would permit one shevus of amira l'nachri b'makom mitzvah. Based on the Rashash it should come out that for Yom Tov which is just a la'av, there is no misah or kareis, we should permit even one shevus for the sake of a mitzvah (meaning that Tosafos would agree that one can rely on the ba'al ha'itur).

Rosh Hashana 21 - Fasting on the Wrong Day

There is a machlokes Rashi and Tosafos whether people out of the Yerushalyim vicinity would keep two days of Rosh Hashana out of concern that Elul was a 30 day month. Rashi writes on 18a that they would only keep one day of Rosh Hashana. Rashi continues that the only reason that messengers went out for Tishrei is to prevent people from being concerned that they were keeping the wrong day for Y.K. and Succos, implying that they would not keep two days. Tosafos there and 18b disgrees and hold that they kept two days. However, the gemara on 21a makes it clear that they would typically not keep two days of Yom Kippur. When Levi visited he found that they were fasting on the wrong day, they weren't fasting both days. The gemara says that Rava would fast two day, and seems to be saying it as somewhat of a chiddush, implying that it wasn't actually necessary, just a personal chumrah. And Rav Nachman got upset when someone told him that the following day was Y.K. which would force him to fast a second day, putting his health at risk. 

The gemara says that Levi pointed out that they were eating on what was established to be Y.K. in Eretz Yisroel, but could not formally testify to force them to fast that day because he didn't hear the beis din be mekadeish day 31. Rashi and Tosafos both explain that Levi was 100% confident that day 30 was not Rosh Chodesh and therefore it had to be on day 31, yet he refused to testify to force them to fast because of the technicality of not hearing the beis din formally declare day 31 as Rosh Chodesh (the difficulty with this is that the gemara 24a says we pasken like R. Elazar Bar Tzadok that on a me'ubar month, the beis din doesn't need to declare mekudash because it is automatic). Tosafos asks that since he knew that they were eating on Y.K. wasn't he obligated to stop them? Why is the technicality of not hearing the formal declaration of Beis Din sufficient to allow them to violate an issur kareis of Yom Kippur? Tosafos answers that since we say 25a that even if the Beis Din makes a mistake, it is binding, therefore it was considered Y.K. for the people of Bavel.

This Tosafos is very difficult to understand. The Turei Even already asks that the concept of אתם ואפילו מוטעין only applies to a circumstance where the Beis Din HaGadol in Yerushalayim messes up. The mistake of a local Beis Din couldn't possibly change Yom Kippur for their community? Furthermore, the gemara indicates that if Levi was able to testify because he heard the declaration of Beis Din, he would have been obligated to do so. Why would he have to testify for them, let them continue with their mistake since for them it would be binding as Yom Kippur? The Ritva explains that it was a believeability issue. There was a takana that one is not obligated to believe any testimony from someone who didn't hear the Beis Din say mekudash. Based on the Ritvah it makes sense that Levi didn't say anything because he would not have been believed on what he was saying since that was the takana. The approach of the Ritva would not apply the concept of אתם ואפילו מוטעין, so clearly Tosafos is not saying like the Ritvah.

The Chiddushei HaRan also assumes like Tosafos and explains that had Levi testified for them, they would be bound by the Beis Din HaGadol in Yerushalayim, since all batei dinim were kafuf to them. But without Levi's testimony they have independence and can also excercise the concept of אתם ואפילו מוטעין to make the prior day into Y.K. The Aruch LaNer also assumes that the local Beis Din must be able to also use this concept. Any place that could not possibly know better must have the right to be under the excuse of אתם ואפילו מוטעין, because otherwise when they find out that they ate on Yom Kippur they should need to bring a Korban. Furthremore, the Aruch LaNer explains that anyone who is able should be REQUIRED to fast 2 days out of safeik, which the gemara clearly assumes is not the case. Although the Beis Yosef cites the Yerushalmi that the heter for not fasting two days was a concern of sakana, the Aruch LaNer writes that one could not rely on this as a general rule, rather each person would need to figure out whether it would be dangerous for them to fast two days. Therefore he concludes that we must be able to apply the אפילו מוטעין even to a local Beis Din.

Although I think that the approach of the Aruch LaNer is the correct peshat in Tosafos, I think that the rejection of the Beis Yosef is incorrect. There are sometimes circumstances where if we would have people do something dangerous as a large group en masse it will statistically be a sakana for a percentage of the group. Even if by looking at individuals we would say that 95% of them would be able to fast without danger, but if the 95% would fast some would inevitably die, that would also be a sakana to permit eating on Yom Kippur. Aside from a concern that if we told the 95% to fast, there would inevitably be people from the 5% that would also fast and be a sakana, there would even be a sakana to the 95% because looking at it on a more global scale rather than as individuals, there is inevitable danger. A mashal to this is when a state hires 1000 workers to build a tunner or bridge. For each worker the chance of death may be small, but there is not question that someone will die in the process. In halacha, that may also qualify as sakana - v'tzarich iyun.

Rosh Hashana 16b - Confusing the Satan

The gemara says that we blow shofar both sitting (prior to shemoneh esrei) and standing כדי לערבב השטן, in order to confuse the Satan. Tosafos cites the Aruch to explain that the Satan upon hearing the second set of tekios will think that Moshiach is coming and he will be killed, so he will be too distraught or distracted to prosecute agains klal yisroel. Rashi and Rabbeinu Chananel take a much simpler approach. They say that the confusion to the Satan will be caused by the repeating the mitzvah which will demonstrate love and endearment for the mitzvah. The Satan will be automatically silenced by our demonstration of love for mitzvos. The Ran has a third approach that the sound of the shofar humbles the yetzer horah. It seems from the Ran that the Satan is not referring to an external angel who speak bad to Hashem about klal yisroel, rather it is referring to the Satan/Yetzer Horah within each person. The shofar will remind the person to submit himself before Hashem, and not yield to the infulence of the yetzer horah.
I would like to focus on the approach of Rashi and Rabbeinu Chananel and its connection to Shavuos. The gemara says in Pesachim 58b that although there is a dispute whether לכם, personal enjoyment is necessary on most yom tovim, all agree that on Shavuos it is necessary - יום שנתנה בו תורה הוא, it is the day the Torah was given. Rashi explains שישמח בו במאכל ומשתה להראות שנוח ומקובל יום זה לישראל שנתנה תורה בו - to rejoice with good food and drink to show that this day is pleasant and accepted by yisroel, that the Torah was given on it. In other words, the avodas ha'yom of shavuos is to indulge and partake of a feast to show the importance of the day. I saw in the sefer Ohr HaChama on the M.B. (from Rav Zundel Kroizer zt"l who just passed away) an interesting question. Why would physical indulgence be the avodas hayom of Shavuos? Wouldn't it make more sense if the way she demonstrate appreciation for the Torah is by learning Torah (which we do)? Why would the halacha dictate otherwise? He explains that on Shavuos klal yisroel accepted the Torah, but the gemara says that they needed to be coerced into receiving the Torah - מלמד שכפה עליהם את ההר כגיגית. Learning Torah would demonstrate that we feel connected to the Torah but it would not necessarily indicate that we are happy about it. Chazal instituted that we physically indulge as an expression of happiness and excitement, to demonstrate that we are happy to have received the Torah and it isn't something that was forced on us against our will.

In general, the קטרוג that the Satan will have against klal yisroel is not that they don't perform mitzvos. We do perform mitzvos. The issue is that we often lack the excitement and enthusiasm in the performance of the mitzvah. We do it in a way that makes it seem like a burden. Therefore, the way we counter this kitrug is by blowing twice, to show that we want to be connected to the mitzvah as much as we can and don't want to let go. That is what Rashi means - שלא ישטין כשישמע ישראל מחבבין את המצות.

Rosh Hashana 10a - Counting the years of Orlah

Over the years, the question of when one can start using the fruit on their newly planted tree arises so it is worthwhile to summarize the halacha l'ma'aseh for this. On one hand the Mishna says that the first day of Tishrei is Rosh Hashana for new plantings, yet we say Tu B'shvat is Rosh Hashana for trees. Both are true.

Replanting potted trees:

Any fruit that grows on a tree for the first 3 years has a status of orlah, and during the fourth year has a status of נטע רבעי. The count begins from when the tree is planted, but if the tree is uprooted and replanted, it is complicated because one must determine if the dirt that was removed with it and how long it could have lasted. The Shulchan Aruch (294:19) writes that if it could survive with the dirt that was removed with it without adding any additional dirt, the count need not restart. However, often the tree can be uprooted and replanted in the pot that already contains soil. In that case the count would at least restart from the point that it was potted. If it is then removed from the potted soil and placed into the ground without much of the potted soil, the count would restart once again. It is not clear in the Shulchan Aruch how long it would need to survive in the dirt that was removed with it. The Pischei Teshuva (13) sites an opinion of the פרח מטה אהרן who says that it has to have enough dirt to survive for the duration of the years of orlah, 3 years. The Pischei Teshuva also quotes the Livushei Sered as saying that the Shulchan Aruch doesn't permit one to actually replant a tree with dirt to avoid the orlah years, it is only bidieved. He also writes that it is not so clear how much dirt it would need to survive for all 3 years. The Shivas Tziyon disagrees and holds that only in Eretz Yisroel would we require enough dirt to survive for 3 years, but in chutz la'aretz even if it is uprooted with just enough dirt to survive for days, it is sufficient. Furthremore, since we pasken that safeik orlah in chutz la'aretz is permitted (even though it is d'oraysa, it is part of the halacha l'moshe misinai to be matir the safeik), if one is unsure it is permitted. Based on this, one can generally be lenient in chutz la'aretz and assume that there was always enough dirt both when removed from the ground originally and when replanted, surrounding the roots to survive for a few days. Therefore, one can judge the age of the tree by its size and maturity to determine whether it is still within the years of orlah.

Rules of Orlah and Revai:

The fruits of orlah that grow within the first 3 years are forbidden to benefit from. The fruits which were orlah will always remain orlah regardless of how much time passes. Orlah is not a דבר שיש לו מתירין since the fruits that are assur will never become mutar. The fruits that grow during the fourth year have status of נטע רבעי. Nowadays when there is no option of eating the fruits in Yerushalayim, they can be redeemed onto a coin and are permitted. One should not redeem the fruits until they are detached from the tree (Shulchan Aruch 6 and Shach 11). One can redeem even a large quantity on a peruta and deform the coin afterward. There is a bracha made on the pidyon - על פדיון רבעי. There is a machlokes cited in Shulchan Aruch (7) whether netah revai applies in chutz la'aretz. Rabbeinu Yona holds that it applies in chutz la'aretz as it does in E.Y. The Rambam holds that it only applies in Eretz Yisroel, but in chutz la'aretz the fruits are considered chulin after the 3 years of orlah and there is no need for redemption. Other rishonim (cited by the Rama) holds that it applies to grapes in chutz la'aretz but not to other trees. The Shach (17) seems to hold that for all trees in chutz la'aretz one should redeem the fruits without a bracha. However, the Gr"a (28) says that the third opinion is the ikar and therefore in chutz la'aretz one can be lenient to use all fruits other than grapes after the 3 years of orlah have passed without redeeming.

Counting the years:

The system for counting the years of orlah is relatively simple. It takes 14 days for the tree to take root (in halacha), and must take root 30 days prior to Rosh Hashana to count as the first year. Also, Tishrei is the Rosh Hashana for newly planted trees, whereas Tu B'shvat is Rosh Hashana for full grown trees. Therefore, if one planted a tree 44 days before Rosh Hashana (before 16th of Av), those 44 days count as year one. From tishrei to tishrei ends year 2, and from that tishrei to the next tishrei ends year 3. BUT the fruits at the end of year 3 remain assur until Tu B'shvat because at this point we regard it as a full grown tree so that the Rosh Hashana is 15th of Shevat, not Tishrei. Therefore, the fruits that reach the stage of חנטה prior to Tu Beshvat of that year remain assur forever, but the fruits that are only cho'neit after Tu B'shvat are permitted to be used. There is a machlokes Rishonim whether the requirement to wait until Tu B'shvat is due to the fact that we are cutting corners at the start of the count and considering anything more that 44 days prior to Rosh Hashana to count as a year. The opinion of many Rishonim including Rashi ("ד"ה ופירות - "מט"ו בשבט עד ראש השנה - משמע שודאי מותר בר"ה הרביעית) and the Rambam is that if one plants within 44 days of Rosh Hashana so that their first year will only end after a full year plus, they can use the fruits that are cho'neit at the end of the third year and don't need to wait until Tu B'shvat of that year (the Yerushalmi Shevi'is perek 2 end of halacha 4 says this almost explicitly as the pnei moshe explains). The Ran disagrees and says that even if one is waiting a full 3 years or more, only fruits that reach חנטה after Tu B'shvat are permitted. This argument would only apply if one actually waited 3 full years, meaning 3 Rosh Hashana's have passed, but if one planted a few months prior to Rosh Hashana and are considering those few months to be the first year, all agree that they would have to wait until Tu B'shvat after the passing of the third Rosh Hashana (Shach 11). In chutz la'aretz one can certainly be lenient so that if 3 Rosh Hashana's passed the fruits that are cho'neit from that point and on are permitted. Furthremore, even if one knows that the tree was planted in the summer (if they didn't even know if it was planted in the summer, they can certainly assume it was planted more than 44 days before R.H.), but couldn't recall whether it was prior to the 16th of Av, they can be lenient in chutz la'aretz to assume that it was planted early and use the fruits that are cho'neit after Tu B'shvat of year 4 (Shivas Tizyon cited by Pischei Teshuva 3).

Trees from a non-jew:

Orlah applies m'doraysa both in Eretz Yisroel and in Chutz La'aretz, just that in chutz la'aretz it is a halacha l'moshe misinai which includes that special exemption for ספק ערלה. It even applies to property that is owned by a non-jew. Therefore, one cannot purchase fruits from the market if there is a strong chashash that they are orah fruits. The Chasams Sofer (cited in Pischei Teshuva 7) holds that the combination of factors, chutz la'aretz and land of a goy makes it so that the orlah is only d'rabonon.

Rosh Hashana 9a - Tosefes Shabbos and Yom Tov

Tosafos writes that the gemara takes for granted that everyone agrees that there is an obligation to be מוסיף מחול על הקודש for every shabbos and yom tov. The machlokes between R. Yishmael and R. Akiva is what the source of this is. R. Akiva holds that the pesukim speaking in the context of shemittah require tosefes, and from there we learn to shabbos, yom tov and Yom Kippur. R. Yishmael holds that the source is inuy by yom kippur and from there we learn to everywhere else.

Tosafos asks on the gemara in Pesachim which only considers the bein hashmashos time of Y.K. to be forbidden in melacha, but melacha should be forbidden even before bein hashmashos to fulfill tosefes? Tosafos answers - ושמא משום דסגי בתוספת משהו נקיט, meaing that since tosefes can be fulfilled by abstention from melacha for an insignificant moment, we don't bother mentioning it as a separate entity from bein hashmashos. On the other hand, Tosafos in Beitzah 30a writes that since bein hashmashos is assur m'safeik, clearly the mitzvah of tosefes would be coming to add some significant amount of time onto the bein hashmashos, since it would be impossible to do melacha up to the split moment before bein hashmashos (and it isn't plausible that women violated this as the gemara says). The Ran in Tosafos also concurs with Tosafos that the tosefes must be some significant amount of time, otherwise it would be a safeik issur d'oraysa since bein hashmashos is considered a safeik. Regarding the amount of time that would need to be added for Tosefes, the M.B. and Chayei Adam assume it must be about 15 minutes. The Chayei Adam (Shabbos, 5:1) writes that bein hashmashos together with tosefes will add up to approx. a half an hour. Since he would assume that bein hashmashos is 3/4 of a mil, which is a little under 15 minutes, he considers the time for tosefes to also be approximately 15 minutes. However, Rav Moshe (Dibros Moshe on Beitza) disagrees with this and holds that the time for Tosefes at least regarding eating, even according to Tosafos in Beitza and the Ran who require a significant amount of time for tosefes, would only be a few minutes. Rav Moshe calculates that according to Reish Lakish who holds that eating a chatzi shiur on Y.K. would not be a Torah violation. Therefore, if one ate a koseves ha'gasa in more than a shiur of achilas pras ON yom kippur, they would not be violating a Torah prohibition. Certainly, if they ate that before Y.K. they would not be violating. Therefore the shiur tosefes for which we are demanding one abstain from eating must be within a shiur of achilas pras of bein hashmashos.

Regarding the proof of the Ran and Tosafos that there must be a shiur for tosefes if one holds safeik d'oraysa l'chumra min hatorah, otherwise the time of tosefes would anyway be assur as a safeik d'oraysa. The Magen Avrohom O.C. 342 (cited in maharatz chiyus) writes that perhaps we would not apply safeik d'oraysa l'chumra to bein hashmashos because there is a chezkas heter of it being daytime. Therefore, even if the Tosefes literally went into bein hashmashos, it is necessary to require Tosefes because otherwise it would be mutar m'doraysa even according to those who hold safeik d'oraysa l'chumra is min hatorah.

Going back to the machlokes R. Yishmael and R. Akiva - The Gilyon HaShas asks that according to R. Akiva that the source for tosefes is shevi'is, that would only be a source for issur melacha, but would not be able to create a zman of tosefes from which one must abstain from eating before Y.K.? Furthremore, not all melachas are assur before shemittah, so how can we learn from there that no melacha can be done in the z'man of tosefes shabbos? Another fundamental question that I have is that Rashi says the nature of the tosefes by shevi'is is not that we extend back the issur melacha to a z'man of tosefes, rather we forbid the type of melacha that will help during the shemittah year (Tosafos 9b d.h. u'mutar) also says that the reason we assur plowing is because it is benefiting the land for shevi'is but as counterintuitive as it seems, planting is permitted up until 30 days before R.H.). This is fundamentally different than the tosefes melacha of shabbos and yom tov where the concept is to extend the kedusha of shabbos back to the z'man tosefes thereby forbidding all melacha. The Rashash cites the Rashba who says that R. Akiva would also need to learn from inuy to teach the din of tosefes for Y.K. and melacha on shabbos and Yom Tov and could not just use the pasuk for the drasha of eating on erev Y.K. 

Rosh Hashana 8b - Mitzvah To Be Mekadesh Yovel and Count Toward It

I mentioned earlier on daf 2 that there is a machlokes between the Rabbonon and R. Yishmael the son of R. Yochanan Ben Broka whether yovel begins on R.H. (Rabbonon) or on Yom Kippur (R.Y.B.R.Y.B.B.). Within the opinion of R.Yishmael the braisa learns from the pasuk of וקדשתם את שנת החמשים שנה, that שמתקדשת והולכת מתחלתה. The Rabbonon who disagree use the pasuk to say שנים את מקדש ואי אתה מקדש חדשים. This means that for yovel there is a mitzvah aseh to be mekadesh it, but for Rosh Chodesh there isn't. Rashi explains that the mitzvah of kiddush yovel is - כששנת היובל נכנסה, מצוה על הב"ד לומר מקודשת השנה. There is a requirement on the Beis Din to declare that the year of yovel has kedusha. This Mitzvah is counted in the Chinuch (#332) but the Minchas Chinuch points out that it isn't clear what the mitzvah entails. Rashi both in our gemara and in chumash holds that the Beis Din must be mekadeish it with a formal declaration. Rashi also seems to hold that the kiddush of yovel is done on Rosh Hashana, but the Minchas Chinuch points out that the Sefer HaChinuch seems to hold that it is done on Y.K. The Sefer HaChinuch writes - 

ומן הדומה שהיו סנהדרין מתקבצין בקידוש השנה ומברכין עליה לקדש שנים ואח"כ תוקעין בשופר. The fact that he associates it with shofar implies that it is done on Y.K. The Minchas Chinuch explains that it makes sense to do it on Y.K. even according to R. Yishmael who holds that Yovel begins on R.H. because since tekias shofar of Y.K. is me'akeiv, it isn't clear that it will be yovel until the shofar is blown. In truth, it seems from the Sefer HaChinuch both in Mitzvah 332 and more in Mitzvah 330 that the kiddush done by the beis din is NOT a declaration of מקודשת השנה, rather just imposing the dinim of yovel. The Sefer Hachinuch writes in Mitzvah 330 - ואחר כך מקדשין שנת החמשים בשביתת הארץ ולקרות דרור לכל העבדים והשפחות וכל הקרקעות חוזרין לבעליהן. It seems that the Sefer HaChinuch disagrees with Rashi and holds that there is no formal declaration of mekudeshes hashana, but he does write in Mitzvah 332 that they make a bracha. Perhaps the Sefer Hachinuch holds that the kiddush is done through the blowing of the shofar, not with a statemenet of מקודשת השנה.

Aside from the mitzvah to be mekadeish yovel, there is a separate mitzvah that is counted by the Chinuch (#330) to count to the Yovel. The Rambam holds that just as for the Omer we say that there is a mitzvah to count both days and weeks (R.H. 5a), for yovel there is a mitzvah to count 49 years and also to count 7 shemita cycles. Regarding the formality of this count, Tosafos (Menachos 65b) says that perhaps Beis Din would formally make a bracha and count toward the yovel the same way that individuals count sefiras ha'omer. Tosafos in Kesubos 72a also assumes that there is a formal count with a bracha for the Yovel, and asks why there isn't any bracha on the 7 day count for a zavah. It isn't clear from Tosafos whether they hold that a zavah needs to verbalize the 7 day count each day, just that there is no bracha, or whether Tosafos means that there is no verbalization of the count, just a mitzvah to keep track (The Da'as Zekeinim Miba'alei HaTosafos takes for granted that yovel must be counted like sefiras ha'omer and seems to assume that zava is the same, just that there is no bracha). The Minchas Chinuch points out that the Sefer HaChinuch certainly assumes that there is no verbalization of the count of a zavah, just an obligation to keep track. Yet, when it comes to the count of Yovel the Sefer Hachinuch clearly assumes that there is a formal count with a bracha. Even though Tosafos writes דשמא ב"ד סופרין ומברכין על הספירה, the Sefer HaChinuch takes it for granted - וכן היא המצוה שהיו מונין שנה שנה ושבוע שבוע של שנים עד שנת היובל כמו שאנו מונין ימי העומר.

R. Akiva Eiger (Pesakim 29 and 30) had a discussion with his uncle R. Binyomin Eiger about the nature of kiddush of yovel. The Ran holds that Yovel is similar to sefiras zava, not to sefiras ha'omer (the Ran is cited in the Taz 489). R. Akiva Eiger points out that his uncle assumes that the peshat in the Ran is that the sefirah of yovel can be accomplished by the Beis Din through hirhur - merely thinking the number. R. Akiva Eiger himself disagrees and holds that according to the Ran there is no mitzvah at all to count the Yovel. The obligation of the Beis din is just to keep track of when Yovel will be, just as a zavah must keep track of her 7 clean days. Either way, the Ran is disagreeing with Tosafos and the Chinuch.

Rosh Hashana 6a - Bal Te'acher For Tzedakah

The gemara learns out from the pasuk of בפיך that there is a violation of בל תאחר for delaying the tzedaka that one owes to the poor. Rava says that the violation of בל תאחר is immediate since there are aniyim available. The gemara elaborates that even though it is learned from the context of korbanos, it is not dependent on the passing of 3 regalim like yom tov, rather it is immediate. The definition of לאלתר - immediate, is somewhat nebulous. It seems from Tosafos on 4a that it is one regel (and that even tzedaka is dependent on the regel). However, the language of לאלתר seems to imply literally מיד as is recorded in shulchan aruch Y.D. 557:3, which would probably mean at the earliest opportunity that is feasible.

The Braisa on 4a lists tzedakah as one of the items for which there is בל תאחר after 3 regalim. All the Rishonim raise the question that this contradicts the statement of Rava who considers it to be immediate. There are 3 approaches in the Rishonim that are cited by the Gr"a in Shulchan Aruch 557:6.

1. Tosafos 4a holds that when there are aniyim present, the violation is immediate which is clearly what Rava was speaking about. When aniyim aren't present one has 3 regalim to distribute the money. Meaning he has the obligation to seek out the aniyim before the expiration of 3 regalim. The implication of Tosafos at the end is that the definition of "immediate" is until the first regel passes.

2. The Rashba holds like the approach that Tosafos rejects. The aseh is violated immediately, but the lo ta'aseh is only violated with the passing of 3 regalim. He holds that even in the absence of aniyim one is in violation with the passing of 3 regalim.

3. The Ran (and Rambam) hold that tzedaka is only mentioned derech agav in the braisa. The entire obligation is contingent on the presence of aniyim. When aniyim are present one is in violation immediately. When they are not present, there is never an obligation to track them down and even after 3 regalim pass one would not be in violation of בל תאחר.

The Shulchan Aruch 557:3 paskens like the Rambam and Ran. The Gr"a agrees with this approach as well because the concept of being dependent on the regel is simply because that is when people were in yerushalayim and were able to bring their korbanos. There is no inherent connection between בל תאחר and the regel. Therefore, tzedaka is no at all connected to the regel, it is completley contingent on the access to aniyim. Nevertheless, the Shulchan Aruch and Rambam write that since one is capable of separating the money even when aniyim aren't present, they are required to at least separate it from their regular spending money and put it in a designated account for the aniyim.

Regarding pledging money to a shul or organization, the Rama writes that the בל תאחר only applies once they send a bill claiming the money. When receiving the bill, it must be paid immeditately. The Rama also writes that one is obligated to tell the gabbai that he made a pledge so that a bill can be sent. Finally, the Rambam and Shulchan Aruch conclude that if a person stipulates that they will distribute their tzedaka at will, and not be bound to give by a certain time, they avoid bal te'acher.

Rosh Hashana 2a - When Does Yovel Begin? (Also pertinent for this weeks parsha Behar)

The Rambam writes in Hil. Eruchin (4:24) that when one is makdish the field and fails to redeem it, it goes to the kohanim by yovel. The Rambam writes - ואם היה ראש השנה של יובל בשבת שהרי משמר יוצא ומשמר נכנס,תנתן למשמר היוצא. The Rambam clearly holds that Yovel begins on Rosh Hashana so that the kohanim serving on Rosh Hashana have the rights to the field. Both the Lechem Mishneh raises the point that the Rambam in Hilchos Shemitin V'Yovel writes that Yovel begins on Yom Kippur, not Rosh Hashana, so why does he make it dependent on the kohanim of the mishmar of Rosh Hashana?

In truth, there is a machlokes tanaim about this issue. The first mishna in Rosh Hashana says that the first day of Tishrei is Rosh Hashana for Yovel. The gemara 8b asks that yovel doesn't begin on Rosh Hashana, it begins on Yom Kippur? The gemara responds that our mishna which says that Yovel begins on Rosh Hashana follows the opinion of R. Yochanan Ben Broka who says that in the Yovel year from Rosh Hashana until Y.K. the slaves no longer work, but also may not go home, rather they eat and party until the sound of the shofar on Y.K. at which point they return home. Both Rabbeinu Chananel and Tosafos explain that the gemara makes our mishna that considers R.H. to be the start of yovel to follow R. Yochanan Ben Broka, but the Rabbonon disagree and hold that yovel only begins on Yom Kippur.

Going back to the Rambam, the Mishnah L'melech points out that the question of the Lechem Mishna doesn't make sense. The Lechem Mishna understood that the concept of מר"ה עד יוה"כ לא היו עבדים נפטרין לבתיהן ולא משתעבדין לאדוניהם אלא אוכלין ושותין ושמחין וכו' כיון שהגיע יוה"כ תקעו ב"ד בשופר נפטרו עבדים לבתיהן is the opinion of the Rabbonon who hold that Yovel begins on Y.K. but according to R. Yishmael the avadim would even return home on R.H. Based on that assumption the Lechem Mishna asks that the Rambam who quotes that statement in Hilchos Shemitah contradicts the ruling in Hil. Eruchin of Yovel starting on R.H. But in truth, the Rambam is simply paskening that yovel begins on R.H. like R. Yishmael, yet the avadim don't return home until Y.K.

We still need to understand the concept of Yovel beginning on R.H. but the avadim not being able to return home until Y.K. Why would that be? The Minchas Chincuh (end of mitzvah 332) cites the Turei Even who says that yovel is dependent on blowing shofar so the yovel cannot go into effect without the shofar being blown on Y.K. But, when the shofar is blown on Y.K. the entire year gets kedushas Yovel even retroactively starting for R.H. Therefore the avadim cannot be forced to work because they may retroactively be freed if yovel goes into effect, but they cannot go home since the kedusha is still pending until the shofar is blown on R.H.

The approach of the Turei Even works to explain the Rambam, but it seems to me that the true peshat in the Rambam is simpler and can be understood from what he writes in the pirush hamishna. The Rambam writes - אע"פ שדיני יובל אינן מתחילין אלא מיום העשירי לתשרי לפי שאמר השי"ת "ביום הכפורים תעבירו שופר", אבל מראשית השנה יתחיל חשיבותה ותסתלק העבודה מן העבדים כדבר השי"ת וקדשתם את שנת החמשים שנה. The Rambam does not seem to support the notion of kedushas Yovel going into effect by the blowing of shofar retroactively from R.H. as the Turei Even explains. Rather, the Rambam holds that there are 2 dinim in Yovel. There is the kedusha of yovel and there is the halachos of yovel. The kedusha of yovel goes into effect on R.H. and that entitles the avadim to not have to work, but they are not set free. The dinim of yovel only begin on Y.K. and that is when the avadim go free (According to this approach the fields of hekdesh going to kohanim should be on Y.K. not R.H. as the Rambam writes in Hil. Erchin?)

Beitza 30a - Doing Away With Gezeiros Chazal

Tosafos writes that the gezeira of against clapping and dancing because of שמא יתקן כלי שיר no longer applies since people don't know how to construct instruments. This is also recorded by the Rama. However, it is very difficult to understand how this works in light of the concept that we have on 5a - כל דבר שבמנין צריך מנין אחר להתירו - whenever chazal make a gezeira, even if the compelling reason is no longer applicable, the gezeira remains in effect until it is formally nullified by a greater beis din. We normally assume that when the reason no longer applies, the gezeira remains in tact. Why is this different? Tosafos on 6a discusses two other cases where we disregard the gezeira after the reason no longer applies. The first is the gezeira against burying on yom tov out of fear that if the goyim see us doing that they will force us to work. Tosafos suggests that this no longer applies since we no longer have goyim like that. Even the dissenting opinion of Rabbeinu Tam that it should apply is because the reason does somewhat apply (or because of a zilzul concern). Rabbeinu Tam doesn't attack the suggestion based on the concept of כל דבר שבמנין צריך מנין אחר להתירו. The second issue is restriction against water left uncovered out of fear that a snake will drink from it and leave venom behind. Tosafos suggests that nowadays where snakes are uncommon, there is no concern. Tosafos directly deals with the question of davar she'biminyan and writes - ואין לומר שצריך מנין אחר להתירו, דכיון דזה הטעם משום חששא, ועברה החששא עבר הטעם. Tosafos seems to say that there are different forms of gezeiros. Some forms of gezeiros are made with the reasons being part of the actual gezeira, therefore when the gezeira disappears the gezeira will no longer apply. Others are made with the reason merely compelling the gezeira but not being part of the gezira. Based on this Tosafos, our Tosafos would also be assuming that the gezeira against musical instruments included the concern, therefore when the concern is no longer applicable, the gezeira disappears.

However, this approach is very difficult and arbitrary. How does Tosafos know when the concern motivating the gezeira was incorporated in the gezeira and when it isnt? Tosafos says in Pesachim 50a regarding doing melacha after chatzos on erev pesach that it was originally forbidden because it was when we were bringing korbanos, and even though we no longer bring korbanos, the gezeira remains in tact. Similarly, in Avoda Zara 35a Tosafos writes that even when vegetable rennet is used for cheese so that the concerns aren't applicable, the gezeira against non-jewish made cheese remains in tact because it is a davar shebeminyan. Yet, in Avoda Zara 2a Tosafos writes that the restrictions against doing business within 3 days of their holidays no longer applies because they aren't as connected to their avoda zara and don't display the same level of allegiance to be concerned for אזיל ומודי. Since the reason no longer applies it becomes permissible.

The Pri Chadash (Yoreh Deiah 116:2) struggles with most of these Tosafos and tries to explain when we maintain the gezeira and when we don't. The Pri Chadash explains that any gezeira that was done across the board in the time of chazal, would apply even when the problem disappears. However, any gezeira that was limited to a specific place such as not burying on Yom Tov in a place where they will force you to work, and not drinking from uncovered water where snakes are common, would only apply to when the concern is still real. It still remains difficult to understand how Tosafos knew that the gezeira against clapping and dancing would have been limited to places where they were familiar with constructing instruments. For whatever reason, the Pri Chadash leaves our Tosafos out of his discussion - וצריך עיון.

Beitza 12a - Mi'toch She'hutra

The gemara concludes that the machlokes between Beis Shamai and Beis Hillel as to whether on is allowed to carry out a child, lulav ans sefer torah to reshus harabim is dependent upon whether we say mi'toch - מתוך שהותרה לצורך הותרה נמי שלא לצורך - since it is permitted for pikuach nefesh, it is also permitted for non-pikuach nefesh purposes.

Rashi explains that when we apply mi'toch, we completely permit the melacha to be done regardless of the intent or purpose that it is being done for. However, the Rabbonon were go'zer to prohibit things that are not necessary for yom tov. Therefore, carrying out stones on yom tov for no purpose to the reshus harabim would be an issur d'rabonon, and they were even gozer that stones should be muktzah to prevent someone from carrying them out. It would seem clear that according to Rashi, even a minimal need would qualify as a "tzorech" to be matir the issur d'rabonon. Therefore, the case of carrying out a child would even include carrying out a child for leisure purposes. However, Tosafos strongly disagrees with Rashi. Their main source is that when one cooks from Y.T. for chol, if not for ho'il the implication is that it would be an issur d'oraysa. Why don't we use mitoch to reduce it from being an issur d'oraysa to just an issur d'rabonon, even without ho'il? Tosafos holds that mitoch only applies on a d'oraysa level when it is a tzorech ha'yom. When the melacha is done for a purpose that is not a tzorech ha'yom, we cannot even apply mitoch on a Torah level, therefore it would be a Torah violation of the melacha. When we say מתוך שהותרה לצורך, הותרה נמי שלא לצורך, that just means that it doesn't need to be a tzorech of ochel nefesh, but id does need to be a tzorech hayom. Since according to Tosafos we require it to be a tzorech hayom to remove the issur d'oraysa, Tosafos would require that it be a significant need. Therefore, Tosafos makes teh case of carrying out a child to be for the purpose of bris milah. Since it is for the purpose of a mitzvah, it is considered tzorech hayom. Tosafos would hold that leisure purposes would not suffice to remove the issur d'oraysa. Tosafos concludes by quoting a more lenient opinion that considers even a leisurely stroll to be tzorech hayom and sufficient grounds to apply mitoch.

The continuation of the gemara seems to more easily conform to Rashi's approach. The gemara assumes that when one cooks gid hanashe on yom tov we can also apply mitoch to remove the violation for cooking on Yom Tov. According to Rashi, this is very understandable because we say mitoch even on things which are not at all a tzorech hayom, and would therefore apply to even non-kosher food. Tosafos on the other hand struggles with why the gemara applies mitoch to a case where the food is not technically kosher. Tosafos says that although he is not allowed to eat it, he nonetheless intends to eat it, therefore we can apply mitoch. The difficulty with this approach is that if we consider his interest in eating it to consider it a tzorech hayom, it should not only be considered a tzorech hayom, it should be considered אוכל נפש literally, and therefore permitted without mitoch, and even permitted according to Beis Shamai. We are forced to say that Tosafos holds that non-kosher food can never be considered ochel nefesh, but if he intends to violate the issur it would be considered a tzorech  hayom that through mitoch would remove the issur d'oraysa for cooking on yom tov.

Beitza 7b - The Torah Making A Gezeira To Protect Another Issur

The gemara says that the machlokes between Beis Shamai and Beis Hillel regarding the shiur for chometz whether it is a koseves or kezayis, is only for the issur of בל יראה ובל ימצא but for the issur of achila all agree that the shiur is kezayis. Yet, when explaining the opinion of Beis Hillel the gemara says that the Torah needs to write both chometz and se'or. Had the Torah only wrote that chometz is assur, one would have said that only chometz is assur since it is eatable but se'or which is not eatable is mutar, therefore the Torah also had to write se'or. This doesn't seem to make sense. Why does it matter that chometz is eatable and se'ora is uneatable, since the discussion is not about the issur to eat chometz, rather about the issur of בל יראה ובל ימצא? Why would the fact that chometz is eatable be a factor in explaining why there should be בל יראה ובל ימצא?

Usually the role of the Rabbonon is to make a gezeira on something which is assur m'doraysa, but there are a few places where the Torah itself makes a gezeira to prevent a more severe Torah violation. An example of this is the issur yichud which is d'oraysa as the gemara says in kiddushin and avoda zara, yet it is clearly to prevent relations with arayos. The Ran suggests at the beginning of Pesachim that the issur of בל יראה ובל ימצא is also the same type of issur. It is a "gezeira" d'oraysa, to prevent the eating of chometz. The Ran explains that the reason that the Rabbonon were so machmir regarding the issur of chometz to demand both bi'ur and bittul is because they realized that if the Torah was so machmir to prevent the eating of chometz (by demanding that it be destroyed) they should also make gezeiros to prevent it. Rav Yosef Engel in one of his seforim has a list of issurei torah that he considers to be of this genre. Based on this approach it is not understandable why the gemara considers the issur of בל יראה ובל ימצא to be more likely to apply to chometz which is eatable rather than to se'or which is not eatable.

Beitza 4b - Ein Mevatlin Issur L'chatchila

The gemara says that the issur of being mevatel issur lichatchila only applies to an issur that is d'oraysa, not to an issur that is d'rabonon. Tosafos points out that the sugya of litra ketzios seems to assume that even for teruma on figs which is only d'rabonon there is an issur to be mevatel lichatchila? Tosafos answers that an issur that has an ikar in the Torah sucah as teruma, which is d'oraysa for דגן תירוש ויצהר, is like a d'oraysa in that one cannot be mevatel lichatchila. But muktzah which is a type of issur d'rabonon that has no source in the Torah, one can be mevatel lichatchila. The Rosh has an entirely different approach to answer this question. Just as the gemara does away with דבר שיש לו מתירין due to the fact that the issur has been burned and not intact, that is why when it is only an issur d'rabonon AND מיקלא קלי איסורא it is not a problem to be mevatel it lichatchila. It comes out that the Rosh would seem to hold that even if it is עיקרו מן התורה, so long as it is not intact, one can be mevatel it lichatchila, whereas Tosafos will hold that even when intact one can be mevatel lichatchila so long as it doesn't have an ikar in the Torah.

Within the approach of Tosafos, it is unclear what the rationale is behind the distinction of יש לו עיקר מן התורה or not. The simpler approach is that something which has a source in the Torah is a more chamur issur because the Rabbonon are just extending an issur that is recognized by the Torah, whereas an issur that is a creation of the chachamim is not as severe and therefore one is allowed to be mevatel it lichatchila. The problem with this approach is that the gemara on 3b that discusses an egg which is ספק נולד ביום טוב and is assur like a ודאי, the gemara says that according to Rabba it is an issur d'oraysa and therefore ספק דאורייתא לחומרא, but according to Rav Yosef and Rav Yitzchok who hold that it is only d'rabonon it should be permitted based on safeik d'rabonon l'kula. The gemara never mentions Rav Nachman who holds that the problem is muktzah. Why not? The simple answer is that the gemara rejected his opinion, but the Tosafos Yeshanim (printed on the margin) says that the reason the gemara doesn't address Rav Nachman is because muktzah is very chamur and כעין דאורייתא, so that muktzah is like hachana d'rabba where we say ספק דאורייתא לחומרא. Is it possible to fit Tosafos with the Tosafos Yeshanim? Tosafos considers muktzah to be something that has no ikar min hatorah, yet Tosafos Yeshanim considers it כעין דאורייתא. It seems clear that if Tosafos means that something which is ikar min hatorah is more chamur, and muktzah is more kal, it is very difficult to justify how we can say ספק לחומרא by the issur of muktzah.

Another approach to explain Tosafos distinction between עיקר מן התורה and אין עיקר מן התורה is that it has nothing to do with the severity of the issur. There can be issurim that are not ikar min hatorah yet they are more chamur (such as muktzah like the tosafos yeshanim says). The Shiltei Giborim says that something which has an ikar in the torah one cannot be mevatel because it is easily confused with a d'oraysa and one will come to be mevatel an issur d'oraysa lichatchila. But something which has no ikar in the Torah such as muktzah, even if it is technically very chamur, it is not quite a d'oraysa and not easily confused with a d'oraysa so one can be mevatel it lichatchila. According to this approach it is possible that Tosafos can fit with the tosafos yeshanim.

Beitza 3b - Davar Sheyesh Lo Matirin

This BLOG began last daf yomi cycle in October 2006 with Beitzah. Rather than reposting what I had written then, I will post the link and try to build on it.

http://hearos.blogspot.com/2006/10/beitza-3b-davar-sheyesh-lo-matirin.html

Based on what I wrote above, the logic of Rashi should be limited to food which can only be eaten once, but would not include hana'ah which can happen multiple times (tzlach), and the logic of the Ran should be limited to ta'aroves and not apply to a safeik (which the tzlach also say). Therefore, something which is an issur hana'ah that can be used multiple times, and is a safeik rather than a ta'aroves, should not be considered a davar sheyesh lo matirin according to Rashi or the Ran (assuming the tzlach's sevara is correct).

The Tzlach also writes that if we are forbidding an egg that is layed on yom tov and gets mixed with others based on davar sheyesh lo matirin, it should only be assur to eat, but should be mutar to move because tiltul is like hana'ah. However, according to Rav Yehuda who holds of muktzah (to the exclusion of Rav Shimon), since they are forbidden to eat, all the eggs become muktzah and cannot be moved either.

In my shiur this morning I was asked, what if the food will spoil by the end of shabbos or yom tov, would we still consider it a דבר שיש לו מתירין? It would seem clear that the sevara of Rashi doesn't apply, but the sevara of the Ran would still apply. 

Returning to the approach of the tzlach, I think that there is a serious difficulty based on the gemara 4b. The gemara asks about a branch which falls into an oven and one is then mevatel using heter wood, that it should not be batul since it is a davar sheyesh lo matirin. The gemara answers that since the issur is destroyed and not intact, there is no issue of davar sheyesh lo matirin. The difficulty is that even without the answer of the gemara, it should not be a davar sheyesh lo matirin. We are speaking about wood which is used for cooking. Certainly that wood can be used multiple times and the cooking after yom tov in no way precludes the ability to cook on yom tov as well. So, why does the gemara consider it to be a davar sheyesh lo matirin, since it can be used multiple times, it should be considered ein lo matirin. This seems to be a pretty strong question against the Tzlach!

Succah 53b - Kal V'Chomer of Achitofel

The gemara tells a story where Dovid HaMelech was digging the שיתין for the beis hamikdash that bring the water down to the depths and was unsure whether he can erase Hashem's name to prevent the waters from flooding the world. Achitofel taught Dovid that a Kal V'chomer can be made from a Sotah, if to bring peace between a husband and wife the name of Hashem can be erased, then certainly to prevent the water from flooding the world it can be erased.

There seems to be a major question on this gemara. Why do we need a kal v'chomer from Sotah, it should be a simple halacha that pikuach nefesh pushes off all issurim in the Torah? It is fair to assume that flooding the entire world would be an issue of pikuach nefesh, so it should have been obvious to Dovid that the name of Hashem can be erased to preven that?

I recall seeing in the sefer of Rav Peretz Steinberg on the Rambam that the issur of erasing the name of Hashem is connected to avoda zara because the torah commands us to destroy avoda zara and then says לא תעשון כן לה' אלקיכם. Since it is connected to avoda zara, there would be no heter of pikuach nefesh. That is why Achitofel had to darshan a special limud from Sotah to permit it.

I would suggest a different answer. Surely pikuach nefesh would permit the name of Hashem to be erased. The problem was that Dovid held like the opinions in Yoma 85b that only definite pikuach nefesh pushes off issurim, but safeik pikuach nefesh does not (which the gemara considers to be the advantage of וחי בהם because only that source would teach that even safeik pikuach nefesh is docheh issurim). Dovid knew that it wasn't clear whether erasing the name of Hashem by throwing the piece of clay into the water would be an effective method of stopping the flood. It was only a safeik and therefore he held it could not be done. However, Achitofel introduced a kal v'chomer from Sotah. By Sotah the right to erase Hashem's name to bring peace is also only a safeik. If she is indeed guilty it will not bring peace, yet it was permitted because of the chance that she is innocent and the erasing of Hashem's name will restore their shalom bayis. This is very meduyak in rashi - לעשות שלום בין איש לאשתו- לבדוק את הסוטה ואם טהורה היא יהא שלום ביניהם, only if she is actually innocent will it bring peace. Therefore, learning a kal v'chomer from sotah would be an effective way to show that even for a safeik of restoring peace the name of Hashem could be erased. That is why we need the source from Sotah and can't rely on the standard pikuach nefesh approach.

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On another note- there is a major historical flaw in the story. Achitofel died after advising Avshalom and Avshalom preferring the advice of Chushai Ha'archi, which happened prior to Dovid purchasing the land for the Beis Hamikdash from Aravna HaYevusi. So, when Dovid was digging the שיתין, Achitofel should have been long dead. See Rashi in Makos 11a.

Succah 46a - Making a Bracha on Seeing a Mitzvah

The gemara says that for Ner Chanukah there was a bracha of she'asa nissim instituted on the seeing of the mitzvah, even without actually performing the mitzvah. Rashi implies that so long as one has not yet lit ner chanukah, they make a bracha on the seeing of the ner lit by someone else, even if they intend to light themselves later that evening. Rashi in Shabbos is explicit about this. However, we follow the opinions that the bracha on seeing was only instituted for those who don't intend to light themselves, and don't have people in their household lighting for them.

Tosafos asks why chazal did not institute a bracha on seeing any other mitzvah, and only instituted a bracha for the seeing of Ner Chanukah. It seems that Rashi was also bothered by this question and tries to address it. Rashi writes - ורואה אותה בפתחי ישראל שמצוה להניח בפתח, צריך לברך על ראיה הראשונה. Rashi seems to add a superfluous line - שמצוה להניח בפתח. Simply, Rashi is just explaining how one happens to see the Ner lit by someone else when just passing by on the street. However, it seems to me that Rashi is trying to say that lighting in a way that it is visible from the street was part of the ikar takana of ner chanukah, therefore when one sees the ner chanukah of someone else, chazal instituted a special bracha. For other mitzvos where the publicizing was not part of the ikar takana, chazal were not mesakein a bracha on merely seeing it.

Tosafos offers three answers to this question. 1. Due to the חביבות הנס and inspiring love for the miracle, they instituted a bracha on the seeing of Ner Chanuka. This would not apply to mitzvos that don't directly represent a Neis. 2. Many people don't have homes of their own in which to light Ner Chanuka, therefore chazal instituted a method of connecting them to the mitzvah by making a bracha on the seeing of the candle. 3. It only makes sense to institute a bracha on the seeing, if when actually performing the mitzvah, one would also make that bracha. Since there is no bracha of שעשה נסים made on taking lulav and sitting in a Succah, there is no bracha made on the seeing of it.

Tosafos rejects the second answer by saying that it is difficult from mezuzah. Meaning, if chazal were worried about one who doesn't have a house being unable to perform this mitzvah and therefore instituted some connection to the mitzvah, namely to make a bracha on the seeing of the Ner, they should have instituted a bracha on seeing a mezuzah as well, to accommodate for those who don't have homes to hang a mezuzah.

This question of Tosafos is very difficult to understand. It seems that there is a fundamental distinction between mezuza and ner chanukah. One who doesn't have a house is patur from mezuzah. In other words, mezuza is a chovas ha'dor, an obligation on one who lives in a house. The house is the me'chayev in the mitzvah. Without a house there is no obligation to do the mitzvah at all. One is certainly not compelled to buy house to perform this mitzvah. However, the mitzvah of ner chanukah is a mitzvah on the individual, just that one needs a house to have a place to light. One who is missing a house is still technically obligated in the mitzvah, just that they have no ability to perform it. It is as if they are handcuffed to a pole and therefore unable to take lulav. Therefore, it would make sense that for such a situation chazal would institute a possibility to at least connect to the mitzvah and make a bracha on the seeing of the Ner.

Succah 42a - Intent Not To Be Yotzei

Tosafos 39a writes that one of the solutions to ensure that one is going to be making the bracha prior to performing the mitzvah of lulav is to intend to NOT be yotzei by lifting it up until after the bracha. Tosafos is confident that this works, since even according to the opinion that mitzvos don't require kavana, when one has intent explicitly NOT to be yotzei, he is not yotzei.

The Biur Halacha (cited in my sefer nasiach b'chukecha pg 129) writes that if one is accustomed to always counting sefira after tzeis hakochavim, and is asked by someone during bein hashmashos what night of the omer it is, even if they responded with the correct number they can count later with a bracha. The justification is that even if mitzvos don't require kavana, since this person always counts later, it is as if he is intending not to be yotzei when he tells his friend the correct number.

To extend this sevara one step further, perhaps one can argue that when one is accustomed to always doing a mitzvah with a bracha, until they actually make the bracha it is as if they were intending not to be yotzei. In other words, if the biur halacha is correct that we can look at the persons general practice to consider it as if he were intending not to be yotzei, we should be able to look at the absence of the bracha as an indication as well.

There is a clear proof from Tosafos that this is incorrect. The gemara on 42a struggles with how to find a case where a person is carrying out a lulav and will not be yotzei. Tosafos asks why don't we just say that he isn't yotzei since mitzvos require intent and he is not intending to be yotzei. Tosafos explains that since he isn't making a bracha now, it is clear that he is not intending to be yotzei. The implication of Tosafos is that according to the opinion who says that mitzvos do not require kavana, the gemara works out fine. But why don't we say that even according to the opinion that kavana is not necessary, he should not be yotzei by carrying it out. The rationale would be that since he is not making a bracha now, it is as if he intended explicitly NOT to be yotzei because his practice is to always do this mitzvah with a bracha. Clearly, Tosafos holds that although explicit intent to NOT be yotzei would work even according to the opinion that מצות אין צריכות כוונה, but by merely not making a bracha we CANNOT interpret his intent to be as if he were intending NOT to be yotzei. Tosafos assumes that if mitzvos don't require intent he would be yotzei, and that is why the gemara needs to struggle to find the case where he isn't yotzei.

Succah 31a - Making a Bracha on a Succah Based on Takanas Marish

The gemara tells a story of a woman who complained that the Rabbononin the house of the Reish Gelusa were sitting in a stolen Succah. Rav Nachman ignored her complaint because although the wood that was used for the succah was stolen, by building it into a Succah, they acquired it through תקנת מריש and only need to return the value of what they stole. The point of the gemara is that for the duration of Succos we consider any material built into a Succah to be as if it were built into a permanent structure like a house. Just as the Rabbonon made a תקנת השבים to say that a beam that was built into a house doesn't have to be disassembled and returned, they made the same takana by a Succah for the duration of Succos (but if the owner is willing to wait until after Succos and wants his wood back, then it must be returned).

The Takanas Marish is essentially a d'rabonon method of allowing the thief to acquire what was stolen without having to go through the technicalities of yiush and shinuy. If the wood would have actually undergone yiush and a shinuy ma'aseh or shinuy reshus, there would be a kinyan on it without any special takana d'rabonon, but the chiddush here is that although there is no technical kinyan, the person is koneh based on this takana and doesn't need to return the beam. It would seem that just as when one makes a kiyan d'oraysa based on yiush and shinuy, they can still not make a bracha on the succah (as tosafos 30a points out - שאני ברכה דאיכא נמי הזכרה לשם שמים).

However, the Mishna Berura (637:15) writes that based on the takanas marish one can even make a bracha. In the Sha'ar Hatziyun (21)  - דבודאי ריש גלותא ורבנן היו מברכין עליה גם כן, he indicates that the source is that the Rabbonon who were sitting in this Succah would not have sat in a Succah that they couldn't make a bracha on, therefore they were presumably making brachos. This seems to be a big chiddush. Simply, the takanas marish itself is a chiddush in that it applies to succah, and it would seem that it should be as good as a kinyan d'oraysa, not  better than a kinyan d'oraysa. The M.B. seems to understand that the takanas marish is more powerful than a kinyan doraysa of yiush and shinuy because it enables you to even make a bracha.

It seems to me that this issue is contingent on what the Rabbonon did with their תקנת מריש. Did they merely institute that it doesn't need to be returned once its used in a Succah just as if it were used in a house, but the heter for the mitzvah haba'ah b'aveira is the standard approach that whenever one is koneh prior to the mitzvah, it is not a problem of mitzvah haba'ah b'aveira. Based on this approach it should be exactly like the halacha when there is yiush and shinuy, one can be yotzei but NOT make a bracha. Or did the Rabbonon make a special takana to address the mitzvah ha'ba'ah b'aveira, meaning that they pretended as if there were never any beam stolen, just that the value is owed to the original owner. Based on this approach, it is as if there was no aveira done with the beam so that one can even make a bracha on the Succah.

It seems to me that this is contingent on a machlokes between the Ritvah and Tosafos in Gittin. The Ritvah writes הרי העצים האלו שסיכך בהם קנויים לו מדרבנן מתקנת מריש, ואין עליו אלא חוב דמיהם שחייב לבעלים, והרי הוא כחוב דעלמא ומשלך קרינא ביה, וליכא נמי משום מצוה הבאה בעבירה, דהא קנינהו מקמי מצוה. The Ritva seems to hold that the way around the mitzvah haba'ah b'aveira is that you are koneh the beam prior to the mitzvah, therefore the din should be the same as whenever you are koneh prior to the mitzvah that you can't make a bracha. However, Tosafos in Gittin 55a (d.h. mai) writes ובסוכה לא בעינן משלכם, ולא מפסלא אלא מפני מצוה הבאה בעבירה, וכי קניא בתקנתא דרבנן לא חשיב מצוה הבאה בעבירה. It is very meduyak from Tosafos at the end that only by the challah case where the right to use it was that he was koneh before the mitzvah are we machmir not to make a bracha, but not when the Rabbonon institute to view it as if there is no aveira done. Tosafos seems to hold that the way around the mitzvah haba'ah b'aveira is that the Rabbonon make a takana as if it were never stolen at all, therefore this should work to allow even the making of a bracha, as the M.B. paskens.

Succah 22b - Using a Succah in a Tree

The Mishna says that if one makes a Succah in a tree, it is kasher but one cannot use it on yom tov because there is an issur to climb up a tree on yom tov. The Sefas Emes points out that it would even be assur to climb the tree before yom tov and wait until yom tov starts. He proves that it would be a violation from the fact that R. Yehuda considers a Succah in a tree not fit for the 7 days of Succos. If it were possible to go up before yom tov, it should be considered fit for 7 days to at least use on chol hamoed.

Rashi writes that in addition to one using it on chol hamoed, if one used it on yom tov b'issur, they would fulfill their mitzvah of Succah. The Pri Megadim points out that this should be a mitzvah haba'ah b'aveira since the mitzvah is completely contingent on doing the aveirah. In my sefer, I pointed out that this Rashi may hold that there is no problem of mitzvah haba'ah ba'aveira when the aveira is only d'rabonon. Otherwise, it is very difficult to understands why one would be yotzei. Perhaps Rashi means to say that on a d'rabonon level it would be a mitzvah haba'ah ba'aveira, but on a d'oraysa level there is no aveira, therefore m'drabonon one is not yotzei, but m'doraysa one would be yotzei. The Mishna Berura (628:3) cites a machlokes between the pri megadim and bikurei yaakov whether one should use such a Succah if that is all they have. The Pri Megadim entertains that one can use the Succah to fulfill the mitzvah d'oraysa, whereas the bikurei yaakov says that the chachamim uprooted the mitzvah בשב ואל תעשה, which they have the authority to do. According to the Pri Megadim that one should actually use such a Succah to fulfill the d'oraysa, we can understand that Rashi means to say that one is yotzei m'doraysa, just not m'drabonon.

Succah 16a - Placing Sechach Before the Walls

The Rama (635) cites the Hagahos Maimonies that when one is building a succah they should be careful to first make the walls of the Succah so that at the time they place the sechach on top, the placing of the sechach will render it a kosher Succah. This seems to be against the gemara that says that as long as there is a חלל טפח when one placed down the גדיש, pile of hay, they can then be חוטט בגדיש (carve out a space in the pile) and it would be a kasher succah. In this case the sechach is being placed prior to the walls being formed, yet it is okay. The Rama deals with this question by qualifying the din  - ואם עשה טפח סמוך לסכך מותר לסכך קודם שיעשה שאר הדפנות כמו בחוטט בגדיש. Meaning, that so long as one has a 1 tefach wall at the time they place the sechach, it is permitted to construct or carve out the rest of the wall after placing the sechach. The justification for this is that the hagahos maimonies understands that the succah doesn't need to be kosher the moment the sechach is placed on top, rather the sechach must be placed on top of a succah that is considered to have walls, even if the walls are just a tefach.

The Magen Avrohom cites the Bach who says that it is only a din lichatchila, but bidieved even if one placed the sechach before forming the walls it would be kasher, and the Levush disagrees and holds that it is passul. The source of the Bach is a Rashi in the Mishna 16a that is cited by the Bach. Rashi describes one who is making the walls of the Succah מלמעלה למטה - שהתחיל לארוג המחיצה אצל הסכך ואורג ובא כלפי מטה. It seems from rashi that the sechach is already up on the Succah and he is starting to construct the walls "אצל הסכך", implying that as of yet there are no walls, yet by forming the walls, the Succah will be kasher. The Taz rejects this proof because Rashi is not intending to describe the sechach being on the succah, he is merely trying to describe the location where he is starting to make the wall, and that is near where the sechach would be. Rashi is not intending to say that the sechach is already there. Therefore, the Taz rules like the levush, against the Bach, and holds that if the sechach is placed before the walls are formed, the Succah will be passul m'doraysa.

To me it seems that although there may not be a proof from the Rashi cited by the Bach, there is another Rashi that clearly holds that the argues on the Hagahos Maimonies who is the source of this chumrah. The Hagahos Mamimonies must understand that the case where one piles a גדיש on a חלל טפח is where there are already walls that are a tefach in width on which he is putting the gadish, and then carving out the other 9 tefachim to form 10 tefach walls. According to this approach the focus should be on the fact that there was a tefach of wall that exists prior to the placing of the gadish (which serves as the sechach). However, when Rashi explains this gemara, he doesn't focus on the walls at all. Rashi seems to understand the the requirement of having a חלל טפח at the time that one places the gadish is because without airspace of a tefach, the gadish cannot qualify as sechach. It sounds from Rashi that even if there were no planks of wood under the gadish that can serve as walls, so long as the gadish will be lifted from the ground by a tefach and form a tefach of hollow space underneath, one can then be חוטט בגדיש to create 10 tefach walls. This is clear from Rashi who writes that the problem without a חלל טפח  is - דעכשיו נעשה שם סכך מאליו ולא היה עליו שם סכך מתחילה, and the solution of having a חלל טפח is -

נמצא שם סכך על אותו גדיש, וכשחוטט מלמטה למעלה עד שמגביה את החלל לשיעור גובה עשרה אין זו עשייתו שהרי אינו מתקן אלא הדפנות, ובדפנות לא אמרינן תעשה ולא מן העשוי

Rashi does not at all focus on whether or not the boards under the gadish that create a chalal tefach are placed in a way that they are fit to serve as walls. The entire focus is that the gadish be placed so that at the time it is placed, it creates a chalal tefach. So long as it creates a chalal tefach, the entire construction of the walls can take place AFTER the placing of the sechach. Being that this sugya is the source of the Hagahos Maimonies, and Rashi seems to understand the gemara differently and holds that there is no requirement for walls to exist at all prior to placing the sechach, there is no source for this din. This is all to develop the shitah of Rashi but l'ma'asah, we are bound by the Rama who paskens like the Hagahos Maimonies.