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.