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we have on 5a - כל דבר שבמנין צריך מנין אחר להתירו - whenever chazal make a gezeira, even if the compelling reason is no longer applicable, the gezeira remains in effect until it is formally nullified by a greater beis din.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would also be assuming that the gezeira against musical instruments included the concern, therefore when the concern is no longer applicable, the gezeira disappears.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!