Hearos (Insights) on Daf Yomi

Erchin 16a - Loshon Ho'rah in the Presence of Three

2012-01-26T15:58:00.000-08:00

I already blogged about this previously and presented the different approaches - SEE HERE.

Reading the gemara simply, it seems to imply like the approach of the Rambam that once loshon hora was violated in the presence of 3 people, it can be assumed that it is already public info (even though the way it becomes public info is through an issur being violated) and can be said over by the 3 who heard it.

Being that the heter is based on the assumption that the word will get out, the Chofetz Chaim (perek 2) has many stipulations as to when it will be permitted:

1. It can be told over casually but not with the intention of spreading the news further. The Yad Ketana holds that even when said casually, it can only be said if that was the topic of conversation, but one cannot move the conversation in that direction in order to share the loshon hora.

2. It cannot be repeated back to the one it was said about. Although the Rashbam permits even this and doesn't consider it to be a violation of rechilus, the chofetz chaim isn't willing to pasken like that.

3. Only one who was part of the group of 3 can say it over, but not the person who heard it from him until it has become well known information.

4. If any of the group of 3 are exceptional yarei shamayim who wouldn't repeat it over, it cannot be repeated over by anyone in the group. He learns this from the gemara in sanhedrin 29a that considers the judges revealing their votes to be loshon hora even though the 3 judges know about it. He suggests that if any of the 3 wouldn't repeat it over because they are the subjects friends or family, it also cannot be repeated.

5. It can only be repeated to places where the news would have spread such as within the city. Mostly likely this condition no longer applies since information spreads very quickly to the 4 corners of the world.

6. If the original person who told it over warned the 3 listeners not to say it, one cannot assume that it will spread and cannot repeat it.

7. One cannot embellish the story in any way. It has to be said exactly as it was heard.

8. The heter is only for the one saying it over, but the listener still cannot believe it as factual. Therefore if the one telling it over knows the nature of the listener and that he would accept it as fact, he cannot tell it to him.

Erchin 10b - Hallel on Yetzias Mitzrayim

2012-01-22T19:19:00.000-08:00

The gemara offers 3 explanations for why we don't say Hallel on Purim. 1. We don't say Hallel for a miracle that occurs outside of E.Y. after the Jews have already entered E.Y. 2. The reading of the Megilla is in place of the Hallel. 3. It wasn't a complete redemption since we remain slaves to Achashveirosh. The entire question as to why we don't say Hallel on Purim is predicated on the gemara's answer that we do say Hallel on Chanuka due to the miracle, even though it isn't called a Mo'ed and there is no prohibition of work. Therefore, all the distinctions as to why we don't say Hallel on Purim, do not apply to Chanuka. It is a miracle that occurred in E.Y., there is no reading to be in place of Hallel, and it was considered a "complete" redemption (although short lived - approx. 200 years). Rashi in Ta'anis 28b seems to understand that the reciting of Hallel on Chanuka would be considered d'oraysa, since the concept of saying of Hallel on a miracle is a Torah requirement.

The gemara challenges the first distinction between Chanuka and Purim from the fact that we say Hallel on the miracle of yetzias mitzrayim (and is forced to respond that prior to entering E.Y. we say hallel on chutz la'aretz miracles). It isn't clear from the gemara which Hallel it is referring to that is said for yetzias mitzrayim. The Turei Even in Megillah explains that it can't be referring to Hallel said on the first day of Pesach because that is a Hallel for the Yom Tov, not for the miracle. Therefore, he suggests that it is referring to the Hallel on the night of Pesach. The Mahartz Chiyus (here) understands the Turei Even to be speaking about the Hallel in shul on the night of Pesach because the Hallel in the Hagada is interrupted by the meal and wouldn't qualify as Hallel. The Maharatz Chiyus asks that to be referring to the Hallel said in shul on Pesach night is also difficult because the minhag ashkenazim based on the Rama is not to say it. It seems to me that the Turei Even is referring to the Hallel said within the Hagada. Although it is not said as a complete entity and wouldn't qualify as a "Hallel", it would nonetheless qualify as a "shira" and would prove that we do say shira even on a chutz la'aretz miracle.

The Rambam (Hil. Chanuka 3:6) paskens like the middle answer of the gemara - קריאתה זו היא הלילא. The Hallel of Chanuka is achieved by the reading of the megillah. This raises a big discussion in the poskim (sha'arei teshuva) in Hilchos Purim, if one doesn't have a megillah to read on Purim, should they recite the full Hallel (and perhaps even with a bracha). However, it seems that when the gemara says that megilla is in place of Hallel it doesn't just mean that it fulfills the obligation of Hallel, rather that reading the megilla is the expression that chazal instituted as the hallel for purim. Therefore, even if one were not to have access to a megilla they couldn't recite hallel with a bracha (and couldn't say a full hallel) since there was no takana to say hallel on purim.

Erchin 7a - Brain Death

2012-01-18T20:38:00.000-08:00

The gemara says that before beis din would carry out capital punishment on a pregnant woman, they would kill the fetus inside of her to prevent the nivul that would occur if they were to kill her first. The gemara concludes from this that if they would first kill her, she would die before the fetus. However, the gemara asks from a source that indicates that a fetus would always die prior to the woman carrying it. The gemara reconciles this by making a distinction between a woman who is murdered in which case she may die first, and a woman who dies naturally in which case the fetus will ALWAYS die first.

It is reported that this gemara was a strong indication for Rav Shlomo Zalman to reject brain stem death as being dead. Since a brain stem dead patient can carry and deliver (Cesarean) a child, it must not be considered dead because it would contradict the gemara's rule that the child will always die before the mother. The fact that the mother can be brain dead and deliver a healthy child indicates that brain death is still alive.

However, in the very next line the gemara says that shabbos may be violated to save the unborn fetus of a pregnant woman who died in childbirth. The implication is that although she died naturally, her fetus may still be living. Rashi comments that sometimes the mother will die before the fetus which creates a safeik pikuach nefesh that justifies the violating of shabbos to save the fetus. According to Rashi it seems that there cannot be a rule that a mother will always die before the child. This would certainly undermine Rav Shlomo Zalman's assumption because the fact that a viable child may be born from a brain dead patient would not prove that brain stem death is still considered living. In truth, Rashi's approach is quite difficult. Just as we are able to assume in the case of inheriting from the mother to bequeath to the father's relatives, that fetus perished before the mother based on the rationale of the gemara - איידי דוולד זוטרא חיותיה עיילה טיפה דמלאך המות ומחתך להו לסימנין, we should be able to rely on that assumption for shabbos as well. Yet, Rashi would seem to hold that we can make that assumption when dealing with monetary issues but it will not be overwhelming enough to prevent an attempt at saving the fetus on the chance that it outlived the mother.

The Shita Mi'kubetzes (15) reconciles the apparent contradiction with a smoother approach. The Shita explains that when a woman is carrying a child but hasn't yet gone into labor, any natural cause of death would affect her fetus before it affects her, therefore her fetus will die first. But, when she has already gone into labor and the fetus has gotten some degree of independence, it is possible and even likely that the fetus will be able to live even after the mother has died (therefore permitting the violation of shabbos to save the fetus). According to this approach the original rule remains strong that prior to labor, when a pregnant woman dies a natural death, her fetus will always die before she dies. Therefore, it is reasonable for Rav Shlomo Zalman to assume that if a brain dead woman can "live" on life support for weeks until her baby is born, it is an indication that she isn't truly dead because a dead woman cannot produce a live baby.

Many years ago, there was an experiment done in Israel led by Dr. Avrohom Steinberg (a proponent of brain stem death being halachic death) to disprove Rav Shlomo Zalman's source. The experiment involved decapitating a pregnant sheep while hooked up to a heart-lung machine, and then successfully delivering a live lamb. There is no debate that a decapitated person or animal is considered dead, yet the baby lamb was able to outlive the trauma of the mother's decapitation. What does this prove? Seemingly it would prove that the gemara's principal is outdated. In the time of the gemara the rule may have been true that a fetus cannot remain alive after it's mother has died, but with modern technology it is a possibility. Therefore, the gemara would not disprove the concept of brain stem death being halachic death.

The problem with this experiment (which i surprisingly couldn't find discussion about) is that the gemara itself differentiates between natural death and one who is killed. The gemara accepts that when one is killed, the fetus can outlive it's mother. It is only when the mother dies through natural causes that the fetus must die first. Therefore, the sheep experiment would concur to the gemara's principal that killing the mother would not kill the fetus, yet when the mother would become brain dead without the trauma of being murdered, it would still be a viable source that brain death is not halachic death. It is unclear to me what exactly this experiment was meant to prove. It seems that the experiment wasn't meant to technically undermine the proof from our gemara. Rather the experiment was just meant to show that the heart and lung can continue to work well after decapitation, proving that life cannot be determined by heart and lung functionality.

For Dr. Steinberg's presentation of the experiment to Rav Shlomo Zalman, CLICK HERE. For an easier read and more cynical article detailing Israeli politics on this issue that was printed in Ha'aretz in english CLICK HERE.

Erchin 3b - Chatzitza for Tefillin

2012-01-15T12:30:00.000-08:00

The gemara says that without a mishna explicitly obligating kohanim to wear tefillin, we would have thought that they were exempt from the head tefillin while doing the avoda. The rationale is that since they cannot wear the arm tefillin while wearing bigdei kehuna because it will be a chatzitzah, they should also be exempt from the head tefillin, therefore we require a mishna to say that they aren't exempt from the head tefillin. It is clear from the gemara that while doing the avoda the kohanim were not able to wear the arm tefillin. There are techincally two options regarding the arm tefillin. Either to wear it under the bigdei kehuna which the gemara rejects due to the chatzitza or wear it over the bidgei kehuna which rashi and tosafos both reject because והיה לך לאות ולא לאחרים לאות, meaning that the tefillin shel yad must be covered and not exposed.

The Rashba in a Teshuva (תרכ"ז) permits one to wear tefillin even if there is something separating between the tefillin and his skin. He derives this from the fact that the only problem that rashi and tosafos mention with putting tefillin on top of the bigdei kehuna is that tefillin shel yad can't be exposed, it must be hidden. This implies that we aren't concerned for chatzitza and for tefillin shel rosh which should be exposed, there is not issue at all with placing them on top of something else. The Shulchan Aruch (27:5) relies on the Rashba for one who has a head injury to put the tefillin shel rosh on top of a bandage or thin cap (without a bracha). The M.B. (18) similarly permits one to put tefillin shel yad on top of a bandage (without a bracha) relying on the rashba when there is no alternative. However, under normal circumstances the Shulchan Aruch (4) writes that chatzitza is an issue and the tefillin must be placed directly on one's arm and head without anything blocking. The Rosh and Gr"a cite the source from על ידך and בין עיניך implying that it must be directly one one's skin without any chatzitzah.

Our gemara seems to support the position of the Rosh (against the Rashba) because the gemara questions why the tefillin shel rosh isn't a problem while wearing the hat, and responds that the hat sat higher on the head behind the tefillin. Why couldn't the gemara say that the tefillin was placed on top of the hat? It must be that the hat would be a chatzitza for the tefillin just as the tefillin would be a chatzitza for the hat. Perhaps this is why the Shulchan Aruch when relying on the Rashba insists on a "thin" hat, because he understands from the gemara that a thick had similar to the one worn by kohanim would indeed be a chatzitzah. However, it is hard to understand why a thin hat wouldn't be a chatzitza and thick one would, therefore the M.B. explains the problem with the thick hat to be that the tefillin will not be situated in the right place.

Another point that we can derive from this gemara is that kohanim are obligated to wear tefillin shel yad while doing avoda. The shita mikubetzes (6) asks that this seems to contradict a gemara in zevachim which exempts kohanim from the mitzvah of tefillin entirely while doing avoda based on עוסק במצוה פטור מן המצוה. The Shita explains that עוסק במצוה פטור מן המצוה only applies when he would have to put on tefillin at a time where otherwise he would be doing avoda so that the mitzvah would be a bitul of the avoda, but he is required to put on tefillin prior to the avoda and continue wearing them while doing the avoda since there is no contradiction. One of the commentaries in the back (Rashash Toibish) answers based on the Ran in Succah 25a who says that one is exempt from a mitzvah while performing another mitzvah even if he can do both. However, it would seem that since one can put on tefillin prior to beginning the avoda at a time when he hasn't even begun the avoda, even the Ran would require him to do so.

Erchin 2b - Avoiding Mitzvos

2012-01-13T11:57:00.000-08:00

The Gemara says that when a child reaches an age that he knows how to wrap himself in clothing, his father is obligated to purchase tzitzis for him. Tosafos points out that the nature of the mitzvah of tzitzis is not an absolute obligation and therefore the father is only obligated to purchase tzitzis for his child when the child has a four cornered garment. But the father is not obligated to purchase a four cornered garment for his child to train him in the mitzvah of tzitzis. Tosafos points out that although the gemara in Menachos 41a considers one who avoids or evades the mitzvah of tzitzis to be deserving of punishment, that is only in those days when they were accustomed to wear four cornered garments, therefore one who went out of their way to avoid it was clearly trying to evade a mitzvah. However, nowadays where most garments are made without having four corners, if one would neglect purchasing a garment that is obligated in tzitzis they aren't deserving of punishment. Tosafos seems to imply that in a time when it was normal to wear four cornered garments, not only should one not avoid the mitzvah for their own garments, they shouldn't even avoid the mitzvah for their child's garments.

The Shita Mi'kubetzes adds that although nowadays it isn't a punishable offense to avoid the mitzvah of tzitzis, it is still proper for one to purchase a four cornered garment to intentionally create an obligation on themselves of tzitzis. The source is from Moshe who yearned to enter Eretz Yisroel to fulfill mitzvos.

In the additions to my sefer Nasiach B'chukecha, I pointed out that there seem to be four levels of avoiding/obligating oneself in mitzvos that they aren't technically obligated in. See Below:

הגדרה בחיוב להכניס עצמו להיות חייב במצות ולפטור את עצמו ממצות:

לענ"ד נראה שיש ד' שלבים לגבי הא דאין לו לאדם לבקש תחבולות לפטור את עצמו מן המצות והחובה להכניס את עצמו לחיוב מצוה. מצינו ענין זה בד' מקומות בש"ס. א. בגמ' קדושין לג ע"א גבי מפני שיבה תקום, קאמר שיכול יעצים עיניו כמו שלא ראהו, וקפריך אטו ברשיעי עסקינן, ומפרש שיכול יעצים עיניו מקמי דלמטי זמן חיובא דכי מטא זמן חיובא הא לא חזי ליה דקאים מקמיה ת"ל תקום ויראת. ופרש"י דילפינן מהכא שיש לך לירא מן היוצר היודע מחשבותיך שאתה מבקש תחבולות להפטר ממצותו. וראיתי בספר דברות משה (קדושין הערה ל"א) שמפרש שזה חמור מהא דאמר מלאך לרבי קטינא דענשינן בעידן ריתחא, שהרי הכא ילפינן מקרא שלא מהני תחבולותיו לפטור את עצמו מן המצוה כלל, והוא מבטל המצוה בידים אלא שנפטר מדין אנוס שלא ידע שעבר מחמת עצימת עינים [ויותר מזה ראיתי בגור אריה (פרשת בהעלותך פרק ט' פסוק א') על פרש"י שם דלא פתח הפרשה בענין הקרבת הפסח משום שהיא גנותן של ישראל שלא הביאו קרבן פסח כל מ' שנה חוץ מזו. התוס' בקדושין לז ע"ב כתבו או שלא היו חייבים עד שנכנסו לארץ או שהיו חייבים אלא שפטורים משום שהיו ערלים, ומ"מ גנות הוא להם שנשארו במדבר מ' שנה מחמת חטא המרגלים. אבל המהר"ל כתב שם וז"ל ולפי דעתי אין צריך, שאף אם הוא פטור מן המצוה או מחמת אונסה או שפטרו, גנאי הוא לו, דסוף סוף לא עשו המצוה כמה שנים שהיו במדבר, שכל מי שהוא פטור מן המצוה מחמת שהוא אונס גנאי הוא לו שלא עשה המצוה, דלא אמרינן בבב"ק כח ע"ב אונס רחמנא פטריה רק לענין פטור מן העונש, אבל מ"מ גנאי הוא לו שלא עשה המצוה והיה לו זכות, וכאן לא היה להם זכות אותו המצוה עכ"ל. הרי סובר דגנאי הוא שלא לקיים מצוה אע"פ שהוא רק מחמת אונס, וכ"ש בנידון דידן שמכניס עצמו למצב כזה ובודאי לאו שפיר עביד שהוא מכניס עצמו למצב שיהיה גנאי לו במה שלא יקיים המצוה. עיין במשך חכמה (פרשת בא י"ג, י') שיש הבדל בין ביטול עשה באונס, לעבירת ל"ת באונס, דבל"ת אין העשיה נחשב לכלום וכאילו לא עשה, אבל בעשה אף כשהיה אנוס מ"מ לא מיחשב כמאן דעביד דסוף סוף לא עשה. ובזה מיישב קושיית התוס' בנדה סא ע"ב אמאי שייך לועג לרש בציצית ולא בכלאים, וכן אמאי קפדינן על בדיקת תפילין ומזוזה יותר מבדיקת ריאה, וכן אמאי קפדינן על שמירת המצה רק למצות לילה הראשונה]. אכן, מדברי הביה"ל (או"ח ס' קכ"ח ס"ב בד"ה או, וכן בס"ד בד"ה אינם) משמע שסובר דקרא ד"ויראת מאלקיך" כללא היא ושייך הכי בכל מקום שמבקש טצדקי לפטור את עצמו ממצות, ואינו דין מיוחד בקימה מפני שיבה, וגם אינו מיוחד למי שמכניס עצמו למצב של אונס. אלא שצ"ע דא"כ אמאי קאמר מלאכא דבעידן ריתחא ענשין, הא יש בזה ביטול מצות "ויראת מאלקיך" וזה חמורא יותר מהא דענשינן בעידן דריתחא, לכן נראה שדרכו של הדברו"מ מדוייק טפי. ב. בגיטין פא ע"א וכן בברכות לה ע"ב אמר רבב"ח אמר ריו"ח משום ר"י בר אילעי בא וראה שלא כדורות הראשונים דורות האחרונים, דורות הראשונים מכניסין פירותיהן דרך טרקסמון כדי לחייבן במעשר, דורות האחרונים מכניסין פירותיהן דרך גגות ודרך קרפיפות כדי לפוטרן מן המעשר. ונראה שגם זה חמור מהא דאמר מלאכא לרבי קטינא, שהרי הכא הם בקשו תחבולות שלא כדרך העולם כדי לפטור את עצמן מן המצות, ונתכוונו לכך שעיקר תכליתם הוא למפטר נפשייהו. ולא דמי לרב קטינא שמסתמא לא נתכוין לפטור את עצמו מן המצוה, רק שניכר לאינשי כן כדהעיר שם בדברו"מ. והנה, בגמ' מנחות סז ע"ב מדמה ענין זה להא דרבי אושעיא שמערים להכניס במוץ כדי להאכיל לבהמתו, וגם למי שאופה פחות מחמשת רבעים ועוד כדי לפטור את עצמו מן החלה. וכל החילוק בגמ' הוא אם גזרו משום בעלי כיסין שהיו מוכרים לעכו"ם ואמרו שאף בשל עכו"ם חייב בתרו"מ, וקאמר דבתרו"מ אע"פ שאפשר להערים להכניסו במוץ כדר"א או להכניסו דרך גגות וקרפיפות לא חששו שיעשה כן משום דהוא מילתא דפרהסיא וזילא ביה מילתא שיאמרו פלוני מערים לפטור את עצמו, ולכן לא נשאר רק עצה למכור לעכו"ם לכך גזרו אף בשל עכו"ם. משא"כ גבי הפרשת חלה שאפשר לאפות פחות מכשיעור בצנעא לא ימכרנו לעכו"ם ומש"ה לא גזרו. מ"מ משמע שבכל ענין שיעשה אפילו כשרק אופה פחות מכשיעור איכא איסורא במה שמערים לפטור את עצמו מן המצוה. ג. במנחות מא ע"א דמלאכא אשכחיה לרב קטינא שהיה לובש בגדים בקייטא ובסתוא שפטורים מציצית, וקאמר ליה קטינא קטינא, סדינא בקייטא וסרבלא בסיתוא, ציצית מה תהא עליה. ומפרש בגמ' דהכי קאמר ליה "טצדקי למפטר נפשך מציצית". ופרש"י וז"ל תבקש תחבולות לפטור עצמך מציצית עכ"ל. ומפרש בדברו"מ הנ"ל דעיקר החשש משום שנראה לאנשי שהיה מבקש תחבולות לפטור את עצמו מציצית דומיא דדורות האחרונים שהכניסו פירותיהן דרך גגות, אע"פ שבאמת זה לא היה כוונתו, ואעפ"כ ענשינן ע"ז בעידן דריתחא. ונלענ"ד שזה מדוייק מאוד בדברי המרדכי (ס' תתקמ"ה) הובא בב"י (או"ח ס' כ"ד) שכתב דמי שיש לו טלית בת ד' כנפות ומבקש עלילות ליפטר נענש, ומשמע מזה דכשאין לו טלית בת ד' כנפות אינו נענש שזה דומה לשלב הד' דמידת חסידות הוא להכניס עצמו למצב של חיוב. ועוד כתב המרדכי וז"ל ודוקא בימיהם שהיו רגילים ללבוש טליתות בת ד' כנפים אבל אנחנו אין דרכנו בבגדי ד' כנפים אפילו בעידן ריתחא לא מיענשי, ומיהא מצוה מן המובחר היא כדאמרינן לא נתאוה משה ליכנס לארץ משום פירותיה אלא כדי לקיים מצות התלויות בה, וה"ה בציצית שגדולה מאוד ומתן שכרה מרובה כדאמר ששקולה כנגד כל המצות. תוס' שאנ"ץ עכ"ל [גם הרא"ש במו"ק (פ"ג ס' פ') כתב כדברי המרדכי דרק כשהיו להם ד' כנפות שייך הא דנענשין מי שלא היתה לו, אבל בזמננו הא דיש לו לחזור אחר ציצית הוא רק מדין משה שביקש ליכנס לארץ לקיים מצות התלויות בה וכ"כ השטמ"ק בערכין ב ע"ב במה שהוסיף על התוס' ד"ה הכל]. ולפמש"כ האגרו"מ אתי שפיר דרב קטינא עצמו לא נתכוין לפטור את עצמו ממצות אלא שמאיזה טעם לא לבש בגד של ד' כנפות. לפיכך כל טענת המלאך לרבי קטינא הוא שניכר לאינשי שמבקש תחבולות לפטור עצמו ממצות ציצית, ולכך כתב המרדכי שזה שייך בזמן שבני אדם רגילין בבגד של ד' כנפות, ולא בזמן הזה [אכן, באמת נחלקו התוס' והמרדכי אם שייך הא דענשין בעידן דריתחא רק כשיש לו ואינו לובשה כמש"כ המרדכי מתחלה דקמיירי דוקא כשיש לו, ומשמע מזה דכשאין לו אף בעידן דריתחא לא ענשינן ליה במה שאינו מחפש אחריו לקנותו. אבל התוס' כתבו דרב קטינא לית ליה בגד המחוייב בציצית, ואעפ"כ קאמר מלאכא דענשינן בעידן דריתחא. עיין בביאורים של הגר"מ בנעט דלדעת המרדכי ניחא דרק שייך למ"ד חובת גברא דקמיירי כשיש לו מש"ה ענשינן בעידן דריתחא אבל אין כופין על קיום מצוה כיון דאינו מחוייב עד שעת לבישה. אבל למ"ד חובת טלית לא שייך הגדרה זו דאין כופין ואעפ"כ ענשינן בעידן דריתחא, דאי כשיש לו מחוייב ועומד וכפינן ליה, ואי כשאין לו הא לא ענשינן. אבל לדעת התוס' קמיירי בדלית ליה ורק משום דחובת גברא ענשינן בעידן דריתחא, אבל אי חובת טלית לא ענשינן כיון שאין החיוב מוטלת אקרקפתא דגברא לא נחשב מי שאין לו כמי שפוטר את עצמו מן המצוה. והשטמ"ק (אות ח') מפרש דלמ"ד חובת טלית נמי ענשינן בעידן דריתחא כשאין לו אלא דשמא היה לו בבית, מש"ה אילו הוי חובת טלית לא הו"ל להמלאך לטעון עליו במה שאינו לובשו]. ד. הבאתי בפנים מתוס' בפסחים קיג ע"ב שמי שאין לו בגד של ד' כנפות יש לו לחזור ולהביא עצמו לידי חיוב, כמו שעשה משה רבינו ע"ה כדאיתא בסוטה יד ע"א שביקש ליכנס לארץ כדי לקיים מצות התלויות בארץ. ונראה דהכא ליכא איסור כלל, שהרי אינו מבקש תחבולות לפטור את עצמו אלא הוא מדת חסידות להכניס עצמו למצב שיהא מחוייב בהמצוה כמו שעשה משרע"ה [וק"ק על האגרו"מ (או"ח ח"ד ס' ד') שהשוה דברי התוס' להא דמלאכא לרב קטינא, דלכאורה לא דק. אמנם באמת יש סתירה בדברי התוס' עצמם שהרי כתבו במנחות דקמיירי בדלית ליה ואעפ"כ ענשינן בעידן דריתחא, וא"כ אמאי כתבו בפסחים שהוא רק בגדר הא דמשה ביקש ליכנס לארץ. ואפשר דדעת התוס' דמי שעומד במצב שהוא פטור אלא שבידו להתחייב עצמו כמו שעשה משה, ולא הכניס את עצמו למצב של חיוב נמי ענשינן בעידן דריתחא, ובזה מיושב גם דברי האגרו"מ שהשוה התוס' בפסחים להא דענשינן בעידן דריתחא וצ"ע]. ויש לעיין בזה, דבשלמא קיום מצות התלויות בארץ שיש בהם תועלת גדולה, שייך חומרא כזה להביא את עצמו לידי חיוב, אבל במצות השמטת כספים או מצות שלוח הקן, או פדיון פטר חמור, או גירושין וכיוצ"ב יש לעיין אם שייך חומרא בזה להביא את עצמו לידי חיוב. ומסתברא שיש לחלק בין מצוה למצוה. ולפמש"כ בשם המרדכי נראה דדוקא במצות גדולות שייך מידת חסידות להכניס עצמו למצב של חיוב כמו מצות התלויות בארץ וכן ציצית ששקולה כנגד כל המצות, אבל בשאר מצות שאין מתן שכרן גלויה לנו, אף ממידת חסידות א"צ להכניס עצמו למצב של חיוב, וצ"ע בזה ואכמ"ל.

Bechoros 57b - Issur to use animals without ma'aser b'heima

2012-01-10T12:07:00.000-08:00

The Mishna says that chazal established 3 time periods throughout the year when they required everyone to do the ma'aser b'ehima. The way they imposed this requirement was by considering all animals to be like tevel when the time comes until they separate ma'aser be'heima. When the time comes one is not allowed to eat or sell any of the animals just as they aren't allowed to use grains that are tevel until separating terumah and ma'aser. This is a Rabbinic institution of tevel, which implies that m'doraysa there is no prohibition. Rashi writes explicitly that on a Torah level there is no prohibition at all to use or eat animals before ma'aser b'heima has been separated. Rashi implies that on a Torah level the mitzvah of ma'aser be'heima doesn't impose any restrictions against using the animals.

This is very difficult because by using the animals prior to ma'aser be'heima one can essentially be causing a bitul to the entire mitzvah. Let's say one has only 10 animals or 100 animals - by using any of the animals they are causing a bitul of ma'aser be'heima. How can there be no Torah prohibition to use an animal or animals when it can very likely be causing a bitul of the mitzvah? Furthermore, even when there is no bitul mitzvah, it would seem logical to assume that since there is no time limit by which this mitzvah must get done (one cannot mix animals of two years but they aren't required to do ma'aser be'heima by the end of any given year), shouldn't the mitzvah inherently include an issur to use it until the mitzvah is performed? A similar discussion is raised in the context of using a keli without tevilas keilim. Since the Torah demands that one do tevilas keilim, it should be prohibited to use a keli without doing tevila m'd'oraysa. If not, then one can indefinitely push off this mitzvah without ever being in violation of it. The Biur Halahca (323:7) takes for granted the the prohibition to use a keli prior to immersion in a mikvah is only m'drabonon. It would seem more logical to me that this would be an issur d'oraysa because otherwise one can never be considered to have violated or been me'vatel this mitzvah. Even if we assume like the biur halacha that it is only an issur d'rabonon, here by ma'aser be'heima it is worse since the use of it will often cause a complete inability to do the mitzvah later such as in the case where he has a number divisible by 10 so that any animal used will cause a remainder of 9 on which one can't perform this mitzvah.

It seems to me that Rashi is troubled by this question and is therefore compelled to write -

אבל קודם לכן מותר דמצוה בעלמא הוא לעשר בהמותיו, דהעשירי קודש מאחר שקרא עליו שם, הבל הרשות בידו לאוכלו בלא מעשר

Rashi understands that the mitzvah is not an obligatory mitzvah, just a מצוה בעלמא. It sounds like he is trying to say that this mitzvah isn't an absolute obligation that one is being me'vatel by using the animal, rather it is a mitzvah to do it but not a violation not to do it.

Bechoros 53a - Uprooting Ma'aser B'heima

2012-01-04T15:46:00.000-08:00

The gemara says that although m'doraysa the mitzvah of ma'aser b'heima applies outside of E.Y. and even without a Beis HaMikdash, the Rabbonon uprooted the mitzvah of ma'aser b'heima. At first the gemara thought that they uprooted it because of a gezeira משום יתום, meaning an animal that is technically not chayev in ma'aser b'heima and would end up being put in the coral for ma'aser b'heima and may end up as a korban. The gemara asks that if that were the concern they should have been concerned even when there was a Beis HaMikdash - אי הכי מעיקרא נמי לא. Therefore the gemara concludes that they abolished the mitzvah of ma'aser b'heima due to a gezeira of תקלה, meaning that people would have animals that have kedusha status sitting around and it would lead to using them in forbidden ways. When there was a Beis HaMikdash the ma'aser b'heima would quickly be brought as a korban so that this wasn't a concern, but post beis hamikdash it is a concern.

The Minchas Chinuch (287) explains this gemara by first establishing a concept. We know from the gemara in Yevamos 90 that chazal are empowered to abolish a positive mitzvah in the Torah if it would lead to a violation of some sort as they did with shofar and lulav on shabbos for concern that one would carry it. The achronim ask why didn't they abolish the mitzvah of shofar out of fear that one will make a musical instrument which certainly seems a more likely concern. They answer that a gezeira that one may make an instrument would apply equally to yom tov as it would to shabbos, therefore they would have to completely abolish the mitzvah of blowing shofar on Rosh Hashana. Although they have the power to abolish a mitzvah for a particular time period, they don't have the authority to do so permanently. Therefore, had they based themselves on a reason that applied to Yom Tov also, they couldn't abolish it even on shabbos. They had to find a reason that only applied to shabbos and not Yom Tov.

The gemara at first suggests that they abolished ma'aser b'heima due to the gezeira of a יתום, that one will bring animals that are technically exempt from ma'aser b'heima. However, this gezeira would apply equally with our without a beis ha'mikdash (actually the concern would even be greater when there was a beis hamikdash and one would end up bringing an animal as a korban that is exempt). The Rabbis couldn't make a gezeira that would eradicate entirely the mitzvah of ma'aser b'heima. This is the gemara's question of אי הכי מעיקרא נמי לא. The gemara doesn't just mean to ask that they should have made the gezeira even when the Beis Hamikdash was standing, but rather the gemara means to say that since the gezeira should apply even when the Beis Hamikdash was standing and they couldn't limit their eradication of the mitzvah, they couldn't make this gezeira at all. They were powerless to make a gezeira that would eradicate the mitzvah under all circumstances. Therefore, the gemara is compelled to say that their motivation was תקלה which was a problem that only exists when there is no beis hamikdash but would disappear with the rebuilding of the Beis Hamikdash when people will once again have the ability to sacrifice the ma'aser b'heima as a korban.

A question that can still be asked is why weren't they gozer against doing ma'aser b'heima outside of E.Y. even when there was a beis hamikdash, since R. Akiva held that the animals from outside E.Y. couldn't be brought as a korban - the problem of תקלה should apply as much as when there was no beis hamikdash? Perhaps when there was a beis hamikdash people were more familiar with how to treat kodshim animals even outside of E.Y. and therefore the תקלה concern wasn't as much of a concern.

Bechoros 51b - Pidyon HaBen With the Intent of Receiving the Money Back

2012-01-03T16:28:00.000-08:00

The gemara tells that R. Tarfon and R. Chanina would often return the money that he received for pidyon ha'ben (the gemara indicates that there is an advantage to this - קיים זה אף הלכה זו. Rabbeinu Gershom explains that the advantage is to publicize that the halacha allows for the money to be returned. This is similar to what the Rosh explains in Pesachim (Perek 1, 10) that there is an advantage to doing things that are not obviously permitted in order to educate people that it is indeed permitted). The gemara then tells of a situation where someone was hanging around R. Chanina after doing pidyon ha'ben and waiting to get his money back. R. Chanina realized that the person didn't give the money whole heartedly and only gave it because he expected it to come right back. R. Chanina told him that the pidyon ha'ben wasn't effective [Rashi has two versions as to whether it is not effective only if it is returned, or even if it isn't returned. Rabbeinu Gershom and Shulchan Aruch (305:8) assume like the first approach of rashi that so long as it isn't returned, the pidyon ha'ben will be effective. Perhaps after R. Chanina would tell him he can't return the money and the giver would accept that, he would be able to return it].

Tosafos asks that the gemara in Kiddushin says that if one would give pidyon ha'ben to the kohein as a gift with the intent of getting it back, it would be effective. This seems to contradict R. Chanina who held that since the person expected it back, it wouldn't be effective. Tosafos answers that had R. Chanina accepted the money with the intent to return it, as the giver had intended, it would be binding. But, since there is a halacha that a kohein isn't allowed to provide incentive to receive pidyon ha'ben (כהן המסייע בבית הגרנות), R. Chanina didn't receive the money with the intent of returning it. Had both the giver and receiver both intended that it should not be returned, or both intended that it should be returned, the pidyon ha'ben would be effective. The problem in the case of the gemara is that the giver intended to receive it back and the receiver received it without the intent of returning it back. Tosafos question seems to assume that the intent to receive it back should be no worse than the explicit condition to receive it back which is effective.

However, the Gr"a (shulchan aruch 305) points out that according to the Rosh in Succah, Tosafos question doesn't even begin. The Rosh in Succah (3,30) explains that a מתנה על מנת להחזיר is a very specific and rigid agreement that requires a kinyan on the return end as well. It isn't merely an informal assumption that the money will be given back. Therefore, the case of R. Chanina doesn't meet the requirements of a מתנה על מנת להחזיר. When the giver intends to give it for only a short amount of time and then receive it back, it is like a מתנה לזמן, a gift with an expiration date which doesn't qualify as a matana at all and wouldn't work for pidyon ha'ben.

Bechoros 49a - Pidyon Ha'Ben After Death

2012-01-02T10:57:00.000-08:00

The Mishna requires one to do pidyon ha'ben to a child who lived passed day 30, but then died. Tosafos questions whether one should make a bracha of shehechiyanu when performing pidyon ha'ben on a dead child. The Birkas Shmuel (Kiddushin #18) points out that the only rationale that Tosafos has not to say Shehechiyanu is that there is pain associated with it due to the child's death, but the implication is that the mitzvah is in full force as if the child was still alive and therefore shehechiyanu may be appropriate. The difficulty with this is that the Rivash explains in a teshuva (131) that the language for the bracha on pidyon ha'ben is "על פדיון הבן" rather than "לפדות". He explains that this fits well with the Rambam (Brachos 11:12) who says that anytime the mitzvah is done for someone else i.e. separating teruma one someone else's grain, or hanging a mezuza in someone else's house, the bracha should be על. Therefore, when one performs pidyon ha'ben for himself, the bracha should be לפדות, but when he performs it for his son, since it is primarily the son's obligation that the Torah requires the father to perfrom, the bracha should be על. The Birkas shmuel asks that the Rambam (11:10) says that shehechiyanu is made when one is doing their mitzvah, not when one is doing the mitzvah of someone else. If we regard pidyon ha'ben as the son's mitzvah, not the father's, hence the bracha is made using the term על, there shouldn't be any shehechiyanu. From Tosafos we find that not only is shehechiyanu made on a standard pidyon ha'ben that the father does for the son, but even after the son dies, the bracha of shehechiyanu is made. It would seem that after the son has died we can no longer say the father is performing the mitzvah for his son, because there is no obligation on a deceased person to do any mitzvah. The fact that the father performs the mitzvah after the son's death and makes the bracha of shehechiyanu, implies that the obligation of the father to redeem his son is primarily the father's own obligation, not merely something the Torah requires him to do for his son. The Birkas Shmuel points out that this directly contradicts the Rivash.

The Birkash Shmuel explains that the obligation for a father to do pidyon ha'ben after his son has died is not to fulfill a mitzvah obligation, rather the debt that was created by the mitzvah before the son had died must still be paid. It is a monetary obligation rather than a mitzvah obligation. However, he suggests that although there is no longer a mitzvah obligation on the father since the son has died (and we are assuming like the Rivash that the primary mitzvah is on the son), there is still a kiyum mitzvah, a fulfillment of a mitzvah that is achieved by the father doing pidyon ha'ben on the deceased son. Now, the bracha of shehechiyanu is different than the bracha of על פדיון הבן in that the bracha of shehechiyanu is on the joy one receives from the opportunity to fulfill a mitzvah. Even on a kiyum mitzvah the bracha of shehechiyanu is appropriate. But a birchas ha'mitzvah is a bracha on the chiyuv, not on the kiyum, as the text of the bracha indicates וצוונו על פדיון הבן. Since the primary chiyuv is on the son, just that until he is 13 the Torah places that obligation on the father to fulfill his son's mitzvah, the language of the bracha is על פדיון הבן since the primary obligation is on the son, not the father. But regarding the shehechiyanu which is on the kiyum ha'mitzvah, the father is certainly fulfilling a mitzvah and can therefore make shehechiyanu. Following this approach it should follow that when a father does pidyon ha'ben after the son had died, since there is a monetary obligation to pay a debt but no longer a mitzvah obligation since the son is dead, there shouldn't be any birchas ha'mitzvah at all. The Birkas Shmuel points out that someone asked him this question, but he was pushed off the question saying that since at some point there was an obligation, even though now it is only a kiyum, the bracha may still be made. But for shehechiyanu, if it were made for a chiyuv mitzvah, it would not be made at all when there is no chiyuv. The fact that Tosafos says it is made after the son's death indicates that it is made for a kiyum mitzvah even when there is no chiyuv.

See here for the Birkas Shmuel

Bechoros 46a - Who is the halachic mother?

2011-12-28T17:04:00.000-08:00

The issue of surrogacy and determining whether parenthood depends on genetics or on birth is very complicated in halacha and difficult to prove. See here for an article by Rav Zalman Nechemia Goldberg Shlit"a where he proves from various sources that the mother who gave birth to a child is considered the mother in halacha, not the mother who donated the genetic material. This is not the forum to weigh in on such a major topic but one of the cases in our mishna opens it up for discussion.

It would seem that regarding fatherhood, it would seem that it is determined by the one who contributed the semen, since that is the only active role the father takes in producing the child. However, we find that if a man would have relations with a non-jew, the child born would not be halachically related to the father. Rashi writes that if a woman converts while pregnant, the child wouldn't inherit from the biological father since conception happened with a mother who was a goy, the Torah no longer connects the semen to the father - דזרע מצרי רחמנא אפרקריה דכתיב וזרמת סוסים זרמתם. Tosafos agrees, but comments that if the mother converts while pregnant, the child anyway isn't related to the father because the child is considered a convert and גר שנתגייר כקטן שנולד דמי breaks his relationship with his biological family. Therefore, it would seem that in a situation where the bio mother and the surrogate mother are both jewish, we would consider the father to be the father. But, if either one is not Jewish, whether the father is considered the father would seem to depend on who is the mother. If the bio mother is considered the mother, perhaps we would consider the bio father the father even though his semen eventually was placed in the uterus of a non-jewish woman. But, if we consider the surrogate mother to be the mother, the biological fathers connection would likely be broken as well.

It seems that the answer to who is the mother may also lie in this case. When a woman converts while pregnant, we consider the child born after conversion to be a bechor regarding pidyon ha'ben - he is the פטר רחם. It would seem that before we entertain the ability of the child to be considered the פטר רחם of this woman, we must first consider him the child of this woman. The gemara says in Yevamos 78a that when a woman converts while pregnant, the conversion works for the child also and he is considered a convert (the womb isn't a chatzitza for the tevilla). Since we would apply כקטן שנולד דמי at the time of conversion, we would not consider the woman pregnant with her own child (even if conception would normally determine motherhood), yet when the child is born we consider him to be a פטר רחם. It would seem that birth determines the relationship between the mother and child because otherwise we shouldn't consider this child to be the פטר רחם. One can disagree with this logic by underlying the assumption. Perhaps motherhood is not a prerequisite for this child to be a פטר רחם. Therefore, even though we wouldn't consider him to be the child of this mother, he would still have kedushas bechor for pidyon ha'ben.

R. Zalman Nechemia cites an excellent proof that it is dependent on birth from the gemara in Yevamos 97b that says when a woman converts while pregnant with twins, the two brothers are considered brothers for the prohibition of אשת אח (if one would have relations with the others wife after he dies). Even though conception would not consider them brothers because they went through a conversion in the process, the halacha still considers them to be brothers because they are born from the same womb. Just as the relationship between the two brothers is determined at birth, the relationship to the mother should also be determined at birth. According to this approach it is not gestation or incubation of the surrogate mother that would determine her to be the mother in halacha, because the gemara indicates that the same halacha would be true if the mother converted well into her ninth month, a day prior to the birth of the child. Rather, it is the actual birth that would determine the familial relationships.

Rav Zalman Nechemia points out that the gemara in Chulin 70a would seem to imply the exact opposite. The gemara discusses a case where an animal gives birth to a bechor directly into the uterus of another, the second animal then gives birth to this bechor and the gemara wants to know whether a child that doesn't belong to it can exempt it from bechor (in the future). The implication of the gemara is that the child doesn't belong to the second mother, even though it also gave birth to it. However, Rav Zalman Nechemia rejects this proof. He points out that since the first animal also gave birth to it, the child already has a mother, therefore the second mother isn't considered a mother. But if the surrogate mother is the first to give birth to the child (as a viable human being or animal), the surrogate mother would be considered the mother.
According to Rav Zalman Nechemia Goldberg the proof from Yevamos 97b is sufficient evidence that the family relationship is established at birth, therefore the surrogate mother is considered the mother. It would therefore follow that if he surrogate mother were a non-jew, even if the genetic mother was jewish, the child would not be jewish.
However, my uncle, Rav Shabtai Rappaport has a very unique (and complex) approach to this issue that I found in an article online - see here. He considers the gemara in Yevamos 97 evidence for determining the family relationships in regard to עריות but not for the purpose of determining status as a Jew. He suggests that the fact that the gemara in Yevamos 78 considers the child of a pregnant convert to be going through his own conversion, implies that the child's religious affiliation is determined at conception by the genetic mother. Since the genetic mother is a non-jew at the time of conception, the child would not be a Jew unless we consider him to have undergone his own conversion. Even if the mother converts while pregnant and the child is born to a Jewish mother, this would not transform him into a Jew since his genetic material wasn't Jewish at the moment of conception. In the case of surrogacy it would then follow that the surrogate mother is considered the mother, but the genetic mother determines whether the child is a Jew. When the surrogate mother is a non-jew and the genetic mother is a Jew, the child will be Jewish but his "mother" will be the non-jewish woman.
The approach of Rav Shabbtai Rappaport is novel, but it is odd to separate between the mother and the one who passes on the Jewish "gene". To me it seems that the proof from the pregnant mother converting doesn't force us to say that Jewishness is passed on by the genetic mother. Perhaps if the mother were able to convert without also converting the fetus she is carrying, the child would still become Jewish upon birth from a Jewish mother. But, since the conversion of the mother automatically works on the child that she is carrying, the child is considered Jewish due to conversion rather than a result of being born to a Jewish mother.

Bechoros 45b - Kohein Marrying a Gerusha

2011-12-28T09:52:00.000-08:00

The Mishna says that a kohein who marries a woman who is forbidden to him must make a neder to make her off limits in order to be kasher to do avoda. The gemara says that even if he hasn't actually divorced her, he can make the neder to continue doing the avoda and divorce her when he is done with the avoda. The gemara explains that we insist on a neder rather than just a formal acceptance that she should be off-limits to him (which is what we require for a kohein who is me'tamei l'meisim) because there more of a yetzer ho'rah for women who are forbidden to him.

The Shulchan Aruch (128:40) writes that a kohein who is married to a divorcee is not allowed to do birchas kohanim, nor is he entitled to any privileges of a kohein such as reading first in the torah. Even if he actually divorces her, he isn't entitled to these privileges until he makes a neder על דעת רבים which cannot be overturned that he will not marry women who are forbidden to him. Although the gemara seems to allow him to continue to do avoda after making the neder, even before divorcing her, we demand both that he divorce her and that he make the neder. The Be'er Hei'tev explains that the gemara only allows him to temporarily complete the avoda because he will divorce her immediately when he is done, but he is not allowed to simply make a neder and continue to stay married to her (he must divorce her at the first opportunity).

The M.B. explains that this penalty applies only to aveiros that are specific to kohanim, not to aveiros that apply to regular Jews as well (such as chilul shabbos). The M.B. quotes the Rambam who explains that when a kohein is lax in one mitzvah we don't add to his laxity in mitzvos by forcing him to forfeit the mitzvah of birchas kohanim. The concern of a rasha giving a bracha to klal yisroel he downplays because the bracha is really from Hashem, not from the Kohein.

The situation recently arose about a kohein who has been living with a non-jewish woman for many years and was recently told that he can no longer du'chan. What is the status of a Kohein who is living with a non-jewish woman? Does this qualify as a violation of something that we penalize him for by removing his privileges to du'chan and get the first aliya, or is this considered to a be a violation of other aveiros that doesn't ruin his rights as a kohein (which the mishna berura says includes even arayos)? Would we consider being married to a gerusha worse in this sense than being "married" to a non-jewish woman? To me it would seem very strange that a kohein who is "married" to a non-jewish woman would be kasher to duchan but if she would convert (making the issur slightly less severe), he would be passul. It is possible that although we don't remove privileges of a kohein who violates arayos or other aveiros, that is because each aveira is separate and in between he is not in a state of doing aveira. But, when he is "married" to a goy, since he is in a constant state of "being married" (meaning living b'kvius with her), it is not better than being married to a divorcee and we don't let him du'chan. A similar distinction is made by the Biur Halacha who discusses a kohein who is me'tamei l'meisim. The language of the Shulchan Aruch implies that even if he only does it once he becomes passul, but the language of the Mishna implies that only if he does it regularly does he become passul. The Biur Halacha asks, why when he marries women even one divorcee would he become passul, he only did it once? To this he answers - כיון דהוא מחזיקה לאשה ועומד במרדו הלא הוא מועד לאיסור זה. Meaning, a kohein who marries a gerusha is in constant violation of the prohibition, and the same may be said when he "marries" a goy. It seems to me that although there is to תפיסת קדושין to a goy, the penalty should still apply. Just as those opinions who hold that there is no tefisas kiddushin between a kohein and a gerusha would certainly agree to the Mishna that we penalize a kohein from "marrying" a gerusha, the same can be said for a goy. Even though there is no technical tefisas kiddushin, the k'vius of being legally married or living together permanently could be similar to marriage to a divorcee.
I just found that the Aruch La'ner addresses this question in his teshuvos Binyan Tziyon (6). SEE HERE. He seems to assume that a goy is considered a p'sul kehuna because the Rambam writes that a kohein who has relations with a goy receives lashes for relations with a "zona". The Rambam clearly considers a goy to be from the p'sulei kehuna. Yet, he leans toward being ma'tir since the issur here seems to only be a penalty d'rabonon and we only find it in a situation where he is actually married. However, he isn't willing to be matir l'ma'aseh unless another posek would agree with him.

Bechoros 38b - Is a Mum that can be cured considered a mum ka'vuah?

2011-12-21T15:24:00.000-08:00

It is clear that when a bechor has a mum that will heal by itself, it qualifies as a temporary mum. Although it cannot be sacrificed as a korban until the mum heals, it would not constitute a mum to permit the shechting of the bechor as the gemara said on 37b. Tosafos discusses a mum that will not heal on it's own, but is curable through medical intervention. According to the first approach of Tosafos any mum that is curable, even if it will take medicines or surgeries, would qualify as a temporary mum thereby retain full kedusha of bechor. According to the second approach of Tosafos, a mum that requires some form of medical intervention to heal it, would qualify as a permanent mum and the bechor my be shechted and eaten without the medical intervention.

This second approach of Tosafos opens up a very peculiar status. One can have a bechor with a mum that is curable but will not heal on it's own and is permitted to shecht it since it doesn't retain the kedusha of bechor. But if he decides to offer the medical treatment to cure the mum, the kedushas bechor will return. The Maharit Algazi questions whether this it is possible for the kedusha of a bechor to be restored through the healing of it's mum. It is very different than a temporary mum where the bechor retains it's full kedusha status even while it has a mum, just that it can't be brought as a korban. Here the kedusha status actually disappears when it gets the mum that will not heal on it's own, therefore you can shecht the animal and eat it, but if you fix the mum the original kedusha status will return.

The Maharit Algazi cites a very interesting source for this phenomenon. The gemara says in Yoma 64a learns from a pasuk that after a temporary mum heals the animal can be brought as a korban. Why would we need a source for this, can't we simply learn from bechor that after the temporary mum passes the animal becomes fit for a korban? It must be that the pasuk comes to teach us that even when the mum is a mum that won't heal on it's own so that it qualified as a permanent mum and the animal lost it's kedusha status, after the mum is healed through medications the kedusha will return.

Bechoros 37a - Doing Avoda with Temporary Mum

2011-12-20T15:22:00.000-08:00

The gemara says clearly that a temporary mum doesn't qualify as a mum at all to permit the shechting of a bechor outside the mikdash, or for redeeming pesulei hamukdashin. However, it qualifies as a mum to prevent the animal from being brought as a korban until the mum heals. It isn't clear if a temporary mum would invalidate a kohein from doing the avoda even temporarily.

The Chachamim in the braisa say that a kohein cannot become a nirtzah since it will require the making of a mum and invalidate him from doing avoda. From this the gemara proves that the piercing is done in the cartilage part of the ear, rather than the fatty part, since in the fatty part it wouldn't make a mum. Rashi explains that a hole in the fatty part would heal and therefore not be considered a mum. Rashi implies that since the mum will heal, it isn't considered a mum at all to invalidate the kohein from doing the avoda, even temporarily. The Maharit Algazi points out that the third answer of Tosafos (d.h. ka'an) that a temporary mum would invalidate the kohein temporarily seems to be against Rashi.

Bechoros 31a - Paskening For Yourself

2011-12-14T16:08:00.000-08:00

The Braisa says that one is not allowed to pasken on their own Bechor that it has a mum to allow himself to eat it. The gemara explains that we are speaking about a kohein who was given a bechor and qualifies as a יחיד מומחה who can normally pasken by himself, but we don't allow him to pasken on his own animal because we are afraid that he will be mo'reh heter for personal benefit.

Tosafos asks that based on this we should never permit anyone to pasken for themselves on any question of issur v'heter. Furthermore, the gemara in eiruvin says in that a talmid chacham can pasken for himself - how does this fit with our gemara?

The Rash in Negaim (cited by Gilyon HaShas) asks Tosafos question and says that it is dependent on whether it is אתחזק איסורא. When the item has a status of being forbidden and relies on the p'sak of the chacham to permit it, one cannot permit their own. But, when there is no default status of issur, one may pasken on their own. The Binas Adam (sha'ar issur v'heter 2) elaborates about this Rash and explains that when a question of issur v'heter would arise on the kashrus of an animal in the shechita process, that would qualify as a chezkas issur where one cannot pasken on their own. But, when it comes to checking the shechita knife on which there is no chezkas issur, one can check their own. It should follow from this that if the shechita knife would get a p'gam in it causing it to be invalid for shechita, the shochet shouldn't be able to check his own knife. However, the Lechem Chamudos (cited by binas adam) explains that anything which is one's control to fix, he is believed on even if it is אתחזק איסורא. Since the schochet can fix his knife by sharpening and removing the nicks, he is believed to say that it has been fixed.

The Binas Adam adds that we learn from our gemara that in a case which is אתחזק איסורא and not in one's own control to fix, even a talmid chacham isn't believed. This is clear from the case of Bechor where a יחיד מומחה isn't believed to pasken on his own.

Following this approach, the Chochmas Adam (109:6) paskens that although a husband may pasken on the bedika cloth of his wife (and she may pasken on her own), if a question develops about chatzitza while immersing in a mikva, the husband cannot pasken. The rationale for the distinction is that he can only pasken when it is not אתחזק איסורא. Once she is established as a Nida and the question is about her becoming tahora, it is אתחזק איסורא.

Bechoros 30b - Accepting Mitzvos Except for One

2011-12-13T21:03:00.000-08:00

The Braisa says that a Goy who accepts Mitzvos with the exception of one mitzvah, is not accepted as a convert. R. Yossi Bar Rav Yehuda adds that even for a detail that is d'rabonon we don't accept him. It is unclear from the gemara whether אין מקבלים אותו means that l'chatchila the Beis Din pushes him off, or that even bidieved would prevent the conversion from being binding. In the Teshuvos Beis Yitzchok (cited by Achiezer 3:26:5) he questions whether this is only lichatchila or even bidieved. The gemara in Shabbos 31 about the story with Hillel and the ger who didn't want to accept the oral torah implies that it is only lichatchila. If acceptance of everything would be essential to the geirus working, Hillel couldn't have converted him today just because he was confident that later on he would truly accept. But if it is only a lichatchila, it would be possible for Hillel to convert him today and wouldn't reject him because he was confident that with time he would fully accept (Even within the approach of Rashi who says that he didn't reject the oral Torah just didn't trust it's divinity, it would still seem impossible for Hillel to accept him today unless it would be binding bidieved regardless).
R. Chaim Ozer (Achiezer) rejects the notion that this requirement is merely lichatchila. The Rambam writes that the acceptance of the mtizvos is integral to the conversion (similarly Tosafos in Yevamos writes that it must be done by day in the presence of a Beis Din), the gemara in Bechoros seems to simply be defining "accepting the mitzvos". Therefore, if one doesn't accept a Torah mitzvah the geirus isn't binding. But R. Chaim Ozer questions that perhaps the rejection of a Rabbinic mitzvah wouldn't invalidate the geirus on a Torah level. R. Moshe Feinstein (E.H. 2:4) concurs with R. Chaim Ozer that the accepting of all the mitzvos is essential and not doing so would undermine the conversion entirely. Just as for the Kohen and Chaver mentioned in the braisa, if they lack commitment to their requirements, their acceptance would be void even bidieved, the conversion of the goy would also be void bidieved.

However, there is a very fundamental dispute between R. Chaim Ozer and Rav Moshe regarding the definition of חוץ מדבר אחד. They were faced with Jews coming to convert who were living with non-jewish women and would be Rabbinically prohibited to stay with them after the conversion. Therefore, the entire conversion was with the assumption that they would be violating the issur of staying together. Another example would be a Kohein who comes to convert his non-jewish wife, and clearly plans on staying with her after the marriage. This would be a conversion with the intent of violating a Torah prohibition.
Rav Chaim Ozer (3:26:4) writes that one who converts with the realization that their desires to violate a mitzvah is too strong and they will be in violation, would not qualify as a חוץ מדבר אחד and the conversion would be binding. The Braisa only intends to exclude one who stipulates that they are converting on the condition that such activity will not be prohibited to them. They are essentially picking and choosing which laws will be part of their Torah. But one who accepts all of them, just that he or she intends to violate some of them, would be a valid convert. R. Chaim Ozer realizes that following this approach one can potentially "accept" all 613, but not keep to any of them - would their conversion be valid!? He qualifies this by saying that if we are sure that he will definitely violate major prohibitions in the Torah such as Shabbos and Kashrus, it is and indication that he doesn't mean to truly accept mitzvos, and the lip service of declaring his acceptance is worthless. It is hard to understand where exactly R. Chaim Ozer would draw the line. Perhaps he would not consider violation of details an invalidation of the conversion, only the uprooting of an entire mitzvah. The underlying approach of R. Chaim Ozer seems to be that one need not commit to fulfill every detail, but they have to accept and recognize that this is a prohibition which they should be keeping. Based on this R. Chaim Ozer permits accepting a convert who is honest about where he stands and says that he will not be strong enough to keep one of the mitzvos in the Torah.

Rav Moshe takes a much clearer and harder line on this issue. Anyone who converts with the understanding that they will not be fulfilling one of the mitzvos in the Torah, even if they theoretically recognize it and accept it's divinity, cannot be a convert and the conversion isn't binding. Acceptance by definition is accepting to keep it. Although a ger may be ignorant and doesn't need much education to convert (the gemara in shabbos discusses a case of a ger who wasn't aware of the issur to worship idolatry), he must accept to follow the mitzvos of the Torah as he is taught them. Rav Moshe is troubled with the gemara in Shabbos where Hillel converted someone who wasn't willing to recognize the oral torah. This seemingly is no worse than חוץ מדבר אחד so how was the geirus binding? He explains Rashi to be saying that the convert wasn't rejecting the oral Torah, rather the convert didn't yet believe that the p'sakim of Hillel and Shamai were part of that divine torah. He hadn't yet come to terms with the sages of the generation being able to convey the divine message but wasn't rejecting any particular law. Even so, Hillel wouldn't have accepted him as a convert unless he was confident that in the future he would recognize that even that the discussions of the Rabbis were part of the oral torah. Rav Moshe understands from Rashi that had this qualified as a חוץ מדבר אחד, the geirus wouldn't be binding even bidieved, but since it was merely a lack of education which misled him to think that the torah discussed by hillel and shamai wasn't part of the oral torah, Hillel's confidence that education would change his attitude was sufficient to convert him today.
The D'var Avrohom (3:28) wrote a letter to R. Chaim Ozer thanking him for sending him a copy of his sefer and offers some comments on this particular teshuva. He writes to R. Chaim Ozer that after reading his distinction of "accepting the mitzvos" and "keeping" the mitzvos, he laughed - ואני חוכך בזה. In this aspect he concurs with R. Moshe that if one "accepts" something with the intent of violating, it doesn't qualify as an acceptance. But regarding the first issue whether the חוץ מדבר אחד is enough to invalidate the geirus, he questions that it may only be a lichatchila requirement as suggested by the Beis Yitzchok. Strangely enough, Rav Moshe (Y.D. 3:106) in a later teshuva leans toward saying that the חוץ מדבר אחד is only a lichatchila for the beis din to reject him, but is not me'akev the geirus. He bases this on the point that was mentioned by R. Chaim Ozer that the rejection of a d'rabonon couldn't invalidate the geirus on a Torah level, therefore it would just be a lichatchila. Since the same language is used for the rejection of a Torah mitzvah - אין מקבלים אותו, this would also only be lichatchila.

There are some orthodox batei dinim that are lax in their insistence on kabalas ha'mitzvos. According to R. Chaim Ozer this would often not prevent the geirus from being binding, but according to Rav Moshe (in the earlier teshuva) any mitzvah that wasn't fully accepted at the time of the geirus would invalidate the entire process.
Unfortunately, I have seem many converts who reject certain halachos such as hair covering and other tznius related issues very soon after their conversion, and there is reason to believe that they had never intended to adhere to these rules. R. Moshe (y.d. 3:106:1 end of section) writes that when the religious people of that community are lax in certain halachos, it wouldn't be fair to consider these things a חוץ מדבר אחד to invalidate the geirus because the fact that all the "religious" women don't abide by it, causes the convert to think that it is just a chumrah being imposed by the beis din.Therefore, rather than regarding this as a חוץ מדבר אחד where she fails to accept something, it can be regarded as a lack of education which would not invalidate the geirus.

Bechoros 29a - Payment for Mitzvos

2011-12-12T15:25:00.000-08:00

The Mishna says that one is not allowed to receive payment for judging, testifying, or doing the mitzvos associated with para aduma, and if one receives payment he is penalized that we invalidate what he did. The gemara explains that this is based on a general principal of מה אני בחנם אף אתם בחנם, which is learned from a pasuk that demands that we model ourselves after G-d and not take payment for the doing of mitzvos such as teaching Torah or paskening on questions. Although there is already a prohibition against a judge taking a bribe, Tosafos explains that this source is necessary to forbid him from taking payment that is not meant to influence the outcome of the judgement (but if it influences the outcome in either direction, it is regarded as a bribe).

When the gemara cites the source for not accepting payment as being the requirement to model G-d and do it for free, Rashi gives the examples of authorizing a p'sak i.e. din, and teaching Torah. Rashi fails to mention the issue of testifying and preparing the para aduma waters. The Cheishek Shlomo suggests that accepting payment to testify according to Rashi is only prohibited m'drabonon, not from the Torah. If it were forbidden m'doraysa it would be tantamount to a witness taking money to testify falsely categorizing him as a רשע דחמס and being passul for all testimonly. The Mishna implies that we only invalidate this testimony, implying that his violation isn't d'oraysa. It also isn't clear from Rashi whether payment for other mitzvos is forbidden m'doraysa or only m'drabonon.

The Rashash cites the Bartneura who elaborates about those who officiate gittin and take payment. He is assuming that sidur ha'get qualifies as din and would invalidate the gett. However, the Rama (E.H. 154) says that it doesn't qualify as din, just as limud ha'torah. The Rashash points out that this would justify the gett being kasher, but wouldn't justify the practice to accept payment for officiating a gett since it would still be a violation of מה אני בחנם אף אתם בחנם as we find by talmud torah. Tosafos justifies those who take payment for studying Torah based on the דייני גזירות in Yerushalayim who relied on this for their livelihood and therefore became the community responsibility to support them so that they can maintain their important work. This logic may also apply to mesadrei gittin or those who do other mitzvos i.e. milah for their livelihood. Someone asked me how I can charge to do a bris - i answered that the mitzvah of bris milah is to cut. I don't charge for the mitzvah of doing a bris, I only charge for stopping the bleeding.

Bechoros 25a - More about Davar She'eino Miskavein

2011-12-08T15:53:00.001-08:00

The gemara suggest that R. Yossi Ben Meshulam agrees with Rav (who paskens like R. Yehuda) that דבר שאינו מתכוין is forbidden. How then does he permit the cutting of the black parts of the hairs of the פרה אדומה leaving behind only the red parts, although he isn't intending to be גוזז but to fix the parah a'duma, it should still be a violation? The gemara implies, and Rashi explains explicitly that since his intent when he is cutting the black parts of the hair is to fix the cow rather than take the hairs, it would be considered a דבר שאינו מתכוין. Tosafos points out that this seems to be a very strange application of דבר שאינו מתכוין. Normally a דבר שאינו מתכוין is where one doesn't even intend to do the ma'aseh issur, but where one intends to do the act of issur just that he is doing it for a different purpose than it is normally done for, it would be considered a מלאכה שאינה צריכה לגופה (which is a special p'tur in hilchos shabbos due to מלאכת מחשבת- it doesn't apply to other areas of halacha and even on shabbos is exempt from punishment but forbidden). In this case where the person is cutting the hairs of the parah a'duma intending to do the act of cutting, it would be similar to a standard מלאכה שא"צ לגופה, but shouldn't qualify as a דבר שאינו מתכוין? Tosafos asks this question in very few words -

דאין זה כשאר לשון "אין מתכוין" בעלמא דכיון דבכוונה גוזז במספרים. Why does the gemara consider this to be a davar sh'eino miskavein?

It seems to me that by certain מלאכות the purpose of the act is so integral to the melacha, that when the act is done for a different purpose it is tantamount to not intending to do the act at all. The prohibition of גוזז on kodshim is that it is forbidden to do things that enable one to take the products of the animal (whether it is the wool, the work in the field or the milk), while it is still alive. Although Tosafos (d.h. sa'ar) explains that the issur is a ma'aseh issur of cutting the wool, unlike the issur of the milk which is an issur on the product, the nature of the issur to cut the wool is because normally one would do this act to obtain the product. When one is גוזז but has no interest in the wool, it undermines the act of גוזז to the point where we consider him to not be intending for גוזז at all. Therefore, when he cuts the blackened parts of the hairs for the purpose of fixing the parah aduma, not for the purpose of using the hairs, it is considered as if he isn't intending to do the act of issur.

Bechoros 24b - Davar Sh'eino Miskavein

2011-12-07T16:57:00.001-08:00

There is a machlokes between the Teruma HaDeshen and the Magen Avrohom whether we can be matir one to do a פסיק רישא דלא ניחא ליה - an inevitable action where he isn't interested in the issur outcome, when the issur is only d'rabonon. The Terumas HaDeshen permits a פסיק רישא דלא ניחא ליה באיסור דרבנן and the Magen Avrohom forbids it (O.C. 314:5). R. Akiva Eiger proves that the Magen Avrohom is correct from a gemara in Succah.

Normally we pasken like R. Shimon that a דבר שאינו מתכוין is permitted, not like R. Yehuda who forbids it. However, when it is inevitable - פסיק רישא, even R. Shimon admits that it is forbidden as the gemara says 25a. When the gemara speaks about a p'sik reisha it is usually in a context where the person is interested in the issur outcome. But when the person isn't interested in the outcome - פסיק רישא דלא ניחא ליה, Tosafos in Kesubos 6a cites the Aruch who permits it even by an issur d'oraysa. Tosafos disagrees and holds that it is forbidden at least by an issur d'oraysa. The Terumas HaDeshen and Magen Avrohom argue if we can be matir by an issusr d'rabonon.

Tosafos explains in our sugya that even though Rav paskens like R. Yehuda who forbids a דבר שאינו מתכוין, that is when the issur is d'oraysa. But if the issur is d'rabonon (either because it is mekalkel, or because תולש לאו היינו גוזז), it would be permitted. It seems that a דבר שאינו מתכוין according to R. Yehuda is worse than a פסיק רישא דלא ניחא ליה according to R. Shimon. The Aruch holds that פסיק רישא דלא ניחא ליה is permitted, so even though we hold like Tosafos that it is forbidden, we see that there is grounds to be matir. It would be logical to assume that if Tosafos holds that even R. Yehuda would permit a דבר שאינו מתכוין when it is only d'rabonon, according to R. Shimon who is always matir דבר שאינו מתכוין, but is machmir for a פסיק רישא דלא ניחא ליה, he would at least be meikel when the entire issur is only d'rabonon. This would seem to support the opinion of the Terumas HaDeshen, against the Magen Avrohom. However, the M.B. writes that l'ma'aseh, most achronim agree with the Magen Avrohom to forbid a פסיק רישא דלא ניחא ליה even when the nature of the issur is only d'rabonon.

Bechoros 23a - Understanding Bitul B'rov

2011-12-06T16:23:00.001-08:00

The gemara raises a concept of an item which is batul whether it is viewed as כמאן דאיתיה דמי. The gemara assumes that if we regard an item that is batul as if it doesn't exist then when a tamei item is batul it wouldn't even be me'tamei by carrying, but if we regard it as existing even while it is ba'tul it would be me'tamei through carrying but not through touching. The gemara leans toward the distinction between carrying and touching implying that we view the tu'mah to be in existence even while it is batul. The rationale for the distinction between carrying and touching is that when one touches something they cannot be touching every molecule at once. Therefore, we can only consider him to be touching an item of tu'mah if the majority is ta'mei, otherwise we would consider the entity to be not tamei. However, when it comes to ma'sah, since when something is carried, every molecule in it is carried, the existence of the tu'mah even as a minority would render the carrier tamei.

Tosafos (d.h. 23a) asks that eating an item should be more similar to tu'mas ma'sah than to tu'mas ma'ga. Why do we permit one to eat an issur that has been batul in rov? Since the minority is considered to still be in existence, it should be comparable to ma'sah where the entire item is being carried or eaten and therefore should be eating issur? Tosafos answers that when one eats something, every small amount that is swallowed is batul b'rov and is therefore similar to ma'ga where the touching of multiple times doesn't make it as if were touched at once. Therefore, just as by tu'mas ma'ga we would identify the entity based on the majority ingredient, the same would be for eating. Tosafos assumes that it would be impossible to eat the entire amount all at once. Perhaps it is because the בית הבליעה can only contain a beitza at one time which it 2 kezaysim. For there to be a full kezayis of issur in the בית הבליעה at once of something that has been batul b'rov, there would have to be more than 2 kezaysim in the beis ha'blia at one time, which is impossible. Furthermore, there should be an issur of eating even a chatzi shiur of issur, unlike tu'mah for which there is no contamination if it is less than the amount needed to be metamei.

The Rosh (Gid HaNashe end of 37) asks the very same question as Tosafos except that the Rosh preempts the answer of Tosafos in his question and says that one should have to be careful to eat in a way where every swallow could potentially contain only the heter food and not the issur food so that it would be more similar to ma'ga than ma'sah? The Rosh answers that we cannot compare tu'mah to issur. There are two types of tu'mah, therefore the chiddush of bitul b'rov may apply to one and not the other, such as to ma'gah and not ma'sah. However, regarding eating, if we would consider there to be any issur in what the person was consuming, the Torah wouldn't allow it's consumption. The fact that the Torah allows one to eat issur that has been ba'tul is a gezeiras hakasuv that in the world of issur, we view it כמאן דליתיה דמי, as if it weren't in existence. Therefore, a piece of issur that is batul in two pieces of heter can even be cooked together (on a torah level) and eaten all together as if the issur disappeared.

The approach of the Rosh seems to assume that the concept of tu'mah that has been batul being metamei by carrying to be d'oraysa, whereas Tosasfos concludes that it is likely only m'drabonon.

Bechoros 22a - Shiur for Opening of Uterus

2011-12-06T11:48:00.001-08:00

The gemara quotes the Mishna in Ohalos (7,4) which says that the shiur for pesichas ha'kever is עד שיעגילו ראש כפיקה. The gemara explains that it is the size of a פיקה של צמר which is used for the שתי stitch. The context of the mishna is to know at which point the cervix is considered open enough so that the dead fetus inside can no longer be considered טומאה בלועה and will be me'tamei the vessels that are in the same room as her. It is unclear if this is also the shiur for פתיחת הקבר in the context of the statement in nidah - אין פתיחת הקבר בלא דם. The Nodeh B'Yehuda cited by the Pischei Teshuva (Y.D. 194,4) says that even forcing the cervix open from the outside would qualify as an opening of the cervix and we would have to be concerned that some blood was let out of the cervix. R. Moshe (Igros Moshe Y.D. 1, 83) says that although the binas adam and chasam sofer disagree with the nodeh b'yehuda, they only disagree when one would use a finger to open the cervix because they assume that a finger wouldn't reach through the cervix. However, even they would agree with the Nodeh B'yehuda that if a tool or instrument is used to enter the cervix, it could qualify as an opening of the cervix where we would say אין פתיחת הקבר בלא דם. R. Moshe (Igros Moshe Y.D. 1, 89) says that although the Nodeh B'yehuda says that only something with a very small diameter such as a pieces of straw wouldn't be considered an opening of the cervix, implying that if it were slightly larger it would be considered an opening of the cervix rendering her a nidah. R. Moshe disagrees because the only shiur that we find in chazal for the opening of the cervix is the shiur of כפיקה של צמר, which they also term as a פתיחת הקבר, therefore it is logical that this would be the shiur also in the context of אין פתיחת הקבר בלא דם. Although it is difficult to know exactly the size of the פיקה של צמר that is used for the שתי stitch, R. Moshe assumes that it must be smaller than the diameter of a small finger. Being that the Rambam paskens that it is possible to have an opening of the cervix without any bleeding, and it is possible that an externally forced opening wouldn't qualify as a פתיחת הקבר, R. Moshe is confident in being lenient with any instrument where the diameter is less than the size of an average persons pinky finger.

Bechoros 21b - What Can You Assume When Buying an Animal from a Jew?

2011-12-04T16:14:00.001-08:00

The gemara has three opinions when one purchases an animal from a Jew and wasn't told whether or not it had already given birth to a Bechor. Rav says that the assumption is that the first born will be a bechor because if the it had already given birth the Jew would have mentioned it to praise his the item he is selling. Shmuel says that it is a safeik since the seller may have assumed that the buyer wanted it to shecht so it wasn't relevant whether or not it had already given birth. R. Yochanan says that the buyer can assume that it is not a bechor because there is an obligation on the seller to notify the buyer if the first born would be a bechor otherwise he would be in violation of lifeni iever (tosafos).

There is a machlokes Rashi, Tosafos and Rabbeinu Gershom within the opinion of Rav as to what the advantage would be in telling the buyer that it had already given birth. Rashi says that it would have more value since the animal born from here on wouldn't have to be given to the kohein. Rabbeinu Gershom says the advantage would be that it is an animal capable of providing offspring. Tosafos (quoting rashi) says that the advantage would be that the animal has proven it is capable of surviving child birth and therefore more valuable. The Maharit Algazi asks although when the seller doesn't say anything we don't have to be concerned that it actually gave birth to a viable child, but why are we not concerned that it miscarried (ti'nuf) which would also exempt the next born from being a bechor? He explains that according to the rationale of Rashi and Rabbeinu Gershom, the logic would apply to ti'nuf as well. According to rashi since ti'nuf exempts from having to give the next born to the kohein, the seller would notify about tinuf as well. According to Rabbeinu Gershom, perhaps even ti'nuf would be an advantage in showing that it is capable of conceiving (although wasn't able to produce a viable offspring). But, according to Tosafos where the advantage is that the animal is capable of surviving childbirth, this wouldn't apply to ti'nuf. According to Tosafos the seller would have no reason to tell the buyer about the ti'nuf so we should be concerned that it was me'taneif and the next born may not be a bechor? Perhaps this is why Tosafos offers an alternate approach.

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Tosafos writes that only a Jew would be believed about the advantage of having already survived a childbirth and therefore being more valuable but a goy wouldn't be believed about this. Tosafos proves from here that even if a goy is מסיח לפי תומו, talking without trying to make a halachic statement, he isn't believed since we assume he is lying to make the item seem more valuable. The Maharit Algazi asks that this implies that if the goy was truly מסיח לפי תומו and not trying to make his item seem more valuable he would be believed even for bechor. But, the gemara says in yevamos that a goy is never believed מסיח לפי תומו on an issur d'oraysa, he is only believed when he is מסיח לפי תומו on an issur d'rabonon, but this is an issur d'oraysa? From this the Maharit Algazi concludes that the Rov of most animals having already given birth after reaching the ages listed earlier in the perek, is a valid rov on a d'oraysa level, just m'drabonon not a good rov since it is dependent on an action (gemara 20a). Since m'doraysa we have a rov that the next born is not a bechor, and it is only d'rabonon that we can't rely on the rov, we can believe a goy if he is truly מסיח לפי תומו without any motive to glorify his item.

Bechoros 19b - Following the Majority

2011-12-02T12:52:00.001-08:00

The gemara suggests that perhaps the halacha of following rov only applies to רובא דאיתא קמן, a rov that is in front of us such as the majority of the sanhedrin voting on an issue, or 9 kosher stores and one non-kosher. But a רובא דליתיה קמן may not command the same status and we wouldn't follow it. The gemara rejects this from the fact that we follow the majority in assuming that most children will not turn out to be a s'ris or ay'lonis, even though that is dependent on a statistic of רוב קטנים לאו סריסים ורוב קטנות לאו איילונית נינהו, which is a רובא דליתיה קמן. However, why do we consider the rov by ketanim to be a רובא דליתיה קמן - just as we consider the 9 stores to be a רובא דאיתיה קמן, we should consider the rov of ketanim to be רובא דאיתיה קמן since most ketanim that are alive in the world today aren't s'risim or ay'lonis? Rabbeinu Gershom seems to address this question and writes- דלא חזינא רובא דעלמא אי הוי סריסים אי איילונית אי לא ואפ"ה אזלי בתר רובא. Even though we have a statistic telling us something that exists right now, since the numbers aren't obvious and can't be counted in front of us, it would qualify as a רובא דליתיה קמן. Similarly, the fact that most cows aren't treifos is a רובא דליתיה קמן because the statistic will not create a רובא דאיתיה קמן since they cannot be counted in front of us.

On another note, the gemara says that we don't follow a rov that is dependent on an action such as the fact that most animals would be pregnant by a certain age, which is dependent on the action of mating with a male. The rationale for not following this rov, the Ramban (Halachos of Bechoros) writes that a mi'ut which happens by itself is stronger than a rov that is dependent on an action. Rashba in Chulin 9a says that this limitation is only d'rabonon. Meaning, m'doraysa we follow rov even if dependent on an action but the Rabbonon tell us not to. Therefore, the Chazon Ish writes that we can only be machmir to not follow a rov dependent on an action, but we cannot be lenient to do so. The Binas Adam (sha'ar rov v'chazaka) proves that the Rashba is correct that it is only d'rabonon based on Tosafos ד"ה אי בעית אימא who says that R. Meir who is concerned for the mi'ut is only d'rabonon. Since the first answer of Rava that the concern of the mishna that the animal born now is a bechor is only m'drabonon, the answer of Ravina about not relying on rov which is dependent on an action is also only d'rabonon. However, this proof isn't very solid because when there is a chazaka that supports the mi'ut even R. Meir would agree that we are concerned for the mi'ut even m'doraysa and here there is a chazaka that supports the mi'ut (as tosafos explains in d.h. me'chvarta). The issue of whether R. Meir is concerned for a mi'ut only m'drabonon or even m'doraysa (when there is no chazaka), is a dispute between tosafos and mordechai (mentioned in this blog on the first perek of chulin).

Bechoros 9b - Spending Money for Safeik Mitzva

2011-11-22T20:37:00.001-08:00

The Mishna says that if one has a safeik whether they have a peter chamor, they must redeem it with a sheep but don't need to give it to the kohein since the rule for giving is המוציא מחבירו עליו הראיה - the burden of proof is on the collector. The gemara says that this follows the opinion of R. Yehuda who says that a peter chamor is forbidden to derive benefit from, therefore one must redeem it even though it won't be given, but according to R. Shimon who says that it is permitted, there isn't even a mitzvah to redeem it.

Tosafos raises an interesting question - A peter chamor without redemption requires it's neck to be broken. Since the mitzvah to break it's neck (arifa) is like any mitzvah where we are strict when there is a doubt, even if it weren't assur b'hanah, there should be a requirement to break it's neck. Tosafos answer cryptically and says that just as one doesn't need to give it to the kohein, there is also no requirement to do the arifa out of safeik. It isn't clear what Tosafos means to say - the concept of המוציא מחבירו עליו הראיה exempts the giving to the kohein but doesn't exempt the breaking of it's neck?

The Maharit Algazi suggests that since we have a concept of המוציא מחבירו עליו הראיה and apply it even to mitzvos that one is obligated to do by the torah such as all safeik of gifts to the kohein, we can similarly apply this concept to any mitzvah where it is questionable if one needs to fulfill it and the fulfilling of it would entail a loss of money. Since the arifa of the peter chamor would be a loss of money, one isn't required to incur the loss for a safeik mitzvah.

This approach is very difficult to accept. It should follow that if one is in doubt whether they are obligated in matzah on pesach or whether they have already fulfilled their mitzvah, they shouldn't be required to incur any expense to fulfill the mitzvah. Had this been true, it should have been mentioned in earlier poskim. Rather, we generally assume that this rule is limited to mitzvos that require giving, but doesn't apply to expenses that need to be incurred to fulfill mitzvos between man and G-d. Therefore, this concept shouldn't apply to the mitzvah of arifa (breaking the donkeys neck).

The Rashash explains that Tosafos doesn't mean to fully equate the mitzvah of breaking the neck with the giving to the kohein, since the concept of המוציא מחבירו עליו הראיה wouldn't apply to the mitzvah of arifa. Rather, Tosafos holds that the arifa is the consequence when one doesn't fulfill the mitzvah to give the sheep to the kohein as redemption of the newborn donkey which is incumbent upon him. When there is no requirement to give a sheep to the kohein, the mitzvah of arifa would also not apply.

Bechoros 6b - Heter to Drink Kosher Milk

2011-11-18T12:48:00.001-08:00

The gemara says that the fact that milk of a kosher animal is permitted to drink is a chiddush because one could have argued that it would be included in either the prohibition against blood (דם נעכר ונעשה חלב), or the prohibition against אבר מן החי since it is part of a live animal. The gemara cites three possible pesukim as the source of the fact that milk is kosher (either the pasuk when Dovid brought milk to the troops, or the pasuk that praises the land of Israel for it's milk which indicates that it is permitted to drink, or a pasuk in Yeshaya).

The Shita Mikubetzes asks, why not use the pasuk by Avrohom when he fed the angels butter and milk. Being that Avrohom kept the entire Torah, the fact that he was willing to give milk to the angels indicates that it is permitted to drink? The R"I answers that Avrohom thought that they were bnei noach. Even if milk were forbidden to Jews, it wouldn't be one of the 7 Noachide laws and permissible for them to drink it. The Shita then cites a Yerushalmi (which is not in the Yerushalmi but in the pesikta and quoted by the da'as zekeinim on parshas vayera) that indicates they ate meat and milk (unlike the gemara in baba meztia which implies that didn't actually eat, and also says that it was served one by one i.e. milk before meat) . When it came time to give the Torah and the mal'achim were complaining they wanted to keep it, Hashem said that every child knows that meat and milk can't be eaten together, yet they ate meat and milk when they visited Avrohom. It isn't clear how this midrash connects to the discussion of the Shita Mikubetzes. Perhaps the Shita is trying to prove that Avrohom thought they were bnei noach from the fact that he fed them meat and milk, so there wouldn't be any proof from there about milk being permitted to drink.

The Maharit Algazi asks that according to the rationale that milk would be assur as אבר מן החי, it would surely apply to non-jews as well. The answer of the Shita that Avrohom assumed they were bnei noach doesn't work if the issur on milk would be an offshoot of אבר מן החי? The Chasam Sofer (y.d. 70) answers that the gemara never really suggested that milk would actually be אבר מן החי or בשר מן החי because it is neither an ei'ver or ba'ssar. Rather the gemara was suggesting that it should be LIKE אבר מן החי in the sense that it would be assur (not not for goyim), based on concept of הטמאים - לאסור צירן ורוטבן וקיפה שלהן. Meaning, since אבר מן החי is assur and the animal is assur when it is alive, so anything that comes from it when it is alive should be included in the prohibition of הטמאים. This prohibition would certainly apply to Jews only, therefore Avrohom would have had no problem giving milk to b'nei noach.

Bechoros 5b - Categorizing Animals Based on Features or Genetics

2011-11-17T15:37:00.001-08:00

The Mishna discusses a case where a mother cow gives birth to a child that looks like a donkey. The gemara learns from the pasuk of פטר חמור that the child would not have Kedushas Bechor. It is clear from the gemara that we completely exempt it from any kedusha of bechor, but it isn't clear from the gemara which type of kedusha it would have if not for the pasuk excluding it. Meaning, do we regard it as a cow since genetically it is a cow, just that it looks like a donkey, or do we regard it as a donkey since it looks like a donkey?

It would seem that the answer lies in the end of the Mishna which cites a rule that היוצא מן הטמא טמא והיוצא מן הטהור טהור. The mishna seems to indicate that the genetic makeup of an animal determines the species to which it belongs, therefore an animal born from a kosher animal (even if it looks like a donkey) is kosher. Similarly, an animal born from a non-kosher animal (even if it looks like a cow) is not a kosher animal. If genetics determines the category, we would have to say that a cow that gives birth to a donkey would have been treated like a בהמה טהורה and been brought as a korban on the mizbei'ach, if not for the pasuk excluding it.

However, the implication of the mishna which uses a pasuk of פטר חמור to exclude this case, implies that we really need the pasuk to exclude it from the requirement of פטר חמור, not from kedushas mizbei'ach (although the gemara confirms that it would certainly be excluded from kedushas mizbei'ach as well). The Steipler (4) proves from Tosafos that this is true. Tosafos suggests that for a cow that gives birth to a donkey the pasuk of the mishna (פטר חמור) would be necessary to exclude if from the mitzvah of redemption like a donkey, and the pasuk in the gemara would be necessary to exclude the reverse (a donkey giving birth to a cow) from kedushas mizbei'ach. Although Tosafos concludes that either pasuk would exclude it completely, their logical default for not having a pasuk would be that the animal should be treated as it looks, not as the species of it's mother. Meaning, a cow that gives birth to a donkey would have been treated like a donkey to require redemption despite that it's genetic makeup is that of a cow. The Steipler proves from here that the species of any animal is determined by it's appearance, not by it's genetics. Nevertheless, there is a separate rule that if it looks like a kosher animal but is born from a donkey, it cannot be eaten - היוצא מן הטמא טמא, not because it's a donkey, but because it is a non-kosher cow. Similarly, if it looks like a donkey it is a donkey, yet if born from a cow it can be eaten because היוצא מן הטהור טהור. This approach of categorizing a donkey born from a cow as a "kosher donkey" is significant because for purposes other than eating i.e. eiver min ha'chai it would have status of what it looks like, not what it is genetically.

The gemara 6a seems to strongly support the approach of the steipler that the species is determined by it's appearance rather than it's genetics. According to the rule that having similarities to it's mother can make it have kedusha of bechor, the gemara questions whether a donkey that has similarities to it's mother which is a cow, would have kedusha. The gemara's suggestion of why it is too different from the mother and wouldn't have kedusha is - הא טמאה והא טהורה, הא קדושת הגוף והא קדושת דמים. The gemara describes it as a non-kosher animal and as the value having kedusha rather than inherent kedusha. Clearly, the gemara is understanding that since it looks like a donkey, if it were to have kedusha (because it has similarities to the mother), it would have קדושת דמים like any donkey, not קדושת הגוף like it's mother.

Bechoros 3b - Avoiding Kedushas Bechor

2011-11-15T16:38:00.001-08:00

The gemara discusses exactly how much of an animal must be given over to a goy in order to avoid kedushas bechor. The predominant opinion seems to be like R. Huna that the ear is enough, since we find that Rami Bar Rachel did that as well. Tosafos entertains the possibility that we would pasken that one would have to give over to the goy a portion in the animal that if missing would render the animal a neveila or treifa (rav chisda and rava), but considers it to be a chumra. Regarding the fact that one is removing kedusha from animal entirely by selling a portion to a goy, Tosafos suggests that it would only be an issue if one were to sell a portion of the fetus which itself would have otherwise had kedusha, but would not be an issue when selling a portion of the mother. Even though this may not be ideal, Tosafos considers it the proper thing to do nowadays since there is no better alternative and if this isn't done someone will surely violate a more severe prohibition with the animal.

The Turei Even (Rosh HaShana 13) suggests that being mafkir the animal would NOT be sufficient to remove the kedusha of bechor from the fact that Rami Bar Rachel who was looking for the simplest option, didn't use the method of hefker. The Chasam Sofer (Y.D. 316) dismisses the proof since it could be that a proper hefker in the presence of others could have been more complicated and difficult than simply selling the ear to a goy. The Maharit Algazi suggests a complicated approach. Hefker wouldn't work to remove the obligation of bechor on an animal that already has kedushas bechor. However, if one were to be mafkir the fetus prior to it's birth, since at the time when it would be fit to receive kedushas bechor it doesn't have an owner, it wouldn't get kedushas bechor. He then backs off based on a gemara in Chulin and says that even if born as hefker, as soon as a Jew would take possession of it, it would assume kedushas bechor.

Chulin 141b - Punishing for Shiluach Hakein

2011-11-14T16:34:00.001-08:00

The gemara says that R. Yehuda gave malkus to someone who clipped the wings of a bird and then sent it away on its feet to fulfill the mitzvah of shiluach hakein because he holds that it must be sent away by flying, not by hopping. The Mishneh L'melech (hil. avadim 18) asks how he was able to punish for this mitzvah. We have a rule - כל מצות עשה שמתן שכרה בצדה אין ב"ד של מטה מוזהרין עליו, meaning that Beis Din doesn't punish for any mitzvah that has a reward tagged onto it. How was R. Yehuda able to punish for shiulach hakein which has the reward of long life attached to it?

The Maharatz Chiyus suggests based on Rashi (?) that the reason that beis din doesn't punish when there is a reward attached is because by writing the reward the torah is hinting that the this is the reward for doing it and not receiving this reward is the punishment for not doing it, to the exclusion of any other punishment. The Maharatz Chiyus explains that this rule works by other mitzvos, but by shiluach hakein the mishna 142a says that the reward needs to be written to teach that there is tremendous reward even for small mitzvos such as this for which there is very little expense. From here we derive that for all mitzvos there is great reward, making it unnecessary to dictate the specific reward if not for the purpose of exempting you from any other punishment. Therefore, shiulach hakein is an exception to the rule since it serves as the source for teaching that there is great reward for even seemingly simple mitzvos, and is not meant to exclude any other punishment.

It seems to me that Rashi himself is coming to answer the question as to how R. Yehuda was able to punish for a mitzvah that the torah writes the מתן שכרה בצדה. Rashi says that the purpose of his "punishment" wasn't punitive, rather it was רידוי בתוכחה שלא ירגיל בזה, ואין לה קצבה אלא עד שיקבל עליו. Meaning, the purpose was not to punish, rather to change the person and motivate him to fulfill the mitzvah. Although Beis Din may not "punish" or "penalize" for mitzvos on which a reward is tagged on, they may still have the ability to encourage and motivate one to fulfill the mitzvah even through force.

Chulin 139b - Searching after mitzvos

2011-11-11T08:39:00.001-08:00

The gemara says that one may have thought that they would be required to search after the mitzvah of shi'luach ha'kein and put in effort to find a birds nest on mountains and hilltops, to which the gemara responds that it only applies when you chance upon it. There is a great debate among the achronim regarding the mitzvah of shiluach ha'kein, whether it is an absolute obligation to send away the mother bird even if one has no particular interest in the baby birds, or is it a mitzvah more similar to divorce where if one wants to do something i.e. take the babies, or divorce their wife, the torah prescribes a format that must be followed. The Chacham Tzvi (83) and Chasam Sofer (100) suggest from this gemara that thought to demand searching after the mitzvah on mountain tops, that it is an absolute obligation. Although the gemara concludes that one isn't obligated to go to the extreme of trying to locate a birds nest, the underlying assumption that it is an absolute imperative even if one has no interest in the babies is never rejected.

On a bit of a different note using the same source, the Mekor Chaim (Nesivos on Hil. Pesach Siman 432) which I cited in my sefer Nasiach B'chukecha (195) proves from our gemara that one is required to invest effort into searching after mitzvos from the fact that the gemara required a specific pasuk to exempt the assumption of searching after the mitzvah on hilltops. Therefore, other mitzvos that don't have a pasuk exempting this level of effort, would demand that extreme amount of effort. However, in my edits on my sefer I pointed out that from Rashi we would be able to prove the exact opposite. Rashi writes -

שנאמר שלח תשלח ב' פעמים, שומע אני לחזור אחר המצוה הזאת עד שתבא לידו. Rashi explains that the default position for having to put tremendous effort into searching after this mitzvah is not a gobal requirement or assumption that would be by all mitzvos. Rashi says that since we have the double language of שלח תשלח I would have understood that this mitzvah would require one to search after it in order to fulfill it, to which the gemara responds that כי יקרא implies the opposite. Therefore, other mitzvos which have no pasuk specifically implying that it demands an extreme level of effort, one would not have to put in tremendous effort to attain the mitzvah.

Chulin 135a - Reishis Ha'Geiz and Matnos Kehuna Nowadays

2011-11-07T16:34:00.000-08:00

According to the Mishnayos both the mitzvah of ראשית הגז and the mitzvah of מתנות כהונה apply without a Beis HaMikdash and even outside of Eretz Yisroel. However, Rav Nachman 136b made a statement that the minhag is to follow רב אלעאי by ראשית הגז and that it should only apply in E.Y. Rashi comments - והוא הדין במתנות, meaning that there is no rationale to differentiate between ראשית הגז and the matanos of זרוע לחיים וקיבה. Since the minhag has become to follow רב אלעאי by ראשית הגז, we also follow him for matanos kehuna that they don't apply outside of E.Y. The Shulchan Aruch both in the halachos of Matanos Kehuna (y.d. 61:21) writes that they apply even outside of E.Y. and then cites a יש מי שאומר שאינן נוהגות בחוצה לארץ. The Shulchan Aruch in the context of matanos kehuna writes וכן נהגו on the lenient opinion even though the main opinion seems to obligate matanos even outside of E.Y. Interestingly, the Shulchan Aruch in the context of reishis ha'geiz doesn't even quotes the stricter opinion - he writes that it only applies in E.Y. to which the Rama adds that some says it applies even on a Torah level in chutz la'aretz but we aren't noheig to be machmir. The Shulchan Aruch is more confident about exempting from reishis ha'geiz in chutz la'aretz since that is explicit in Rav Nachman's statement. Although there is no rationale to differentiate between reishis ha'geiz and matanos, the gr"a (61:20) explains that the leniency is based on a minhag which may have only been to be lenient about reishis ha'geiz and not about matanos kehuna. The Beis Hillel (333) struggles with trying to understand why we are even lenient in E.Y. nowadays. Although the Pischei Teshuva (61:8) cites the chasam sofer who would routinely shecht an animal before yom tov and fulfill the mitzvah of matanos kehuna and reishis ha'geiz, the minhag is not to be makpid about fulfilling these mitzvos. The Beis Ephraim (on shulchan aruch 61) quotes the kerisi u'pleisi who wonders why we don't find people going out of their way to fulfill this mitzvah. He quotes the Pri Chadash who argues on the Beis Hillel's (who wrote that he was told that even in E.Y. people don't fulfill the mitzvah of matanos kehuna), and says that they didn't realize what they saw because it is מעשים בכל יום that matnos kehuna are given in E.Y. from the animals that are being shechted. The Beis Ephraim also quotes that the kreisi writes that his son in law insisted on giving matanos kehuna at the pidyon ha'ben of his son. Since he was being machzik the kohein as a kohein for the purpose of discharging his pidyon ha'ben obligation, he certainly can rely on his yichus to give him matnos kehuna.

Chulin 122b - How far do you have to go?

2011-10-25T15:59:00.000-07:00

The gemara says that for tefilah and netilas yadayim one must travel 4 mil forward, and just under one mil backward. Rashi explains that we are talking about someone who is on the road travelling and he wants to stop for the day, but knows that he will have a shul 4 mil ahead to daven (Tosafos assumes that this means a minyan, not a physical structure), he must continue to go to the shul. Similarly, if one was hungry and wanted to eat bread but didn't have water to wash his hands, he would be required to wait until he travels 4 mil before he eats.

The Biur Halacha (163) assumes that the shiur of 4 mil is really a time requirement. Since it would take 72 minutes for the average person to travel 4 mil, the gemara is demanding that one wait 72 minutes. A possible scenario would be if one is on an airplane and wants to eat bread but can't leave his seat at the moment, since it is very likely that within 72 minutes he will be able to wash, he is obligated to wait. It isn't clear to me why the Biur Halacha assumes that this would be dependent on time. Rashi uses language of "tircha" implying that one must push themselves to continue to travel, implying that the amount of 4 mil was for a circumstance where he was on foot and walking 4 mil is a significant tircha. Perhaps if he were travelling with minimal tircha he would need to wait longer than 72 minutes.

The M.B. also comments that if one isn't certain that by waiting or continuing to travel they will find the shul or water, they aren't required to wait at all. This is certainly the implication of Rashi who writes in definitive terms that there is water and a shul in front of him.
Another point that the Biur Halacha makes in the name of the Chayei Adam is that if one isn't very hungry he should wait even more than 4 mil. However, Rashi gives an example of one who wants to stop while it is still day and the halacha demands that since it is still day time and easy to travel, he must continue. It would seem that a similar case by eating would be when one wants to eat now but can relatively easily delay. Perhaps if one is very hungry so that delaying is very difficult (on the level of travelling at night), they wouldn't even have to wait 4 mil.

Chulin 121a - Concept of Achshavei

2011-10-24T16:36:00.000-07:00

There is a halacha that is recorded twice in Y.D., once at the end of hilchos sheratzim and once in siman 155 in the Rama - מותר לשרוף שרץ או שאר דבר איסור ולאכלו לרפואה אפילו חולה שאין בו סכנה. The obvious implication is that for the sake for refuah it is permissible to eat a prohibited item that has become inedible, but when it is not being done for refuah purposes, it is forbidden. The Yad Avrohom explains based on the Rosh (2nd Perek of Pesachim) that when one burns chometz before pesach rendering it unfit for consumption, it would still be forbidden to eat on Pesach since by eating it he is giving it importance - מדאכליה אחשביה. Based on this it would be forbidden under normal circumstances to eat a bug or other forbidden item that has been burned, but if it is merely being eaten for medicinal purposes it is permitted since the concept of אחשביה only applies when one is consuming it as a food item. This is to the exclusion of the Sha'agas Aryeh (75) who considers the concept of אחשביה to apply even when one is eating something for medicinal purposes. Either way, the concept of אחשביה is a Rabbinic concept. On a Torah level it would seem impossible for one's intent or purpose to determine an item forbidden or permitted.

However, according to R. Yehuda in the mishna, when one gathers the small pieces of meat that are attached to the inner side of the hide together to make a kezayis, it would have status of a kezyais neveila. Rav Huna explains that this is only when he himself gathers them together, indicating through his actions that he is considering it to be important - דאחשביה וגלי דעתיה דלא בטליה מעיקרא: רש"י. Rashi writes that the concept of אחשביה can be used here, not only in the realm of טומאת נבילה, but even in the realm of איסור נבילה. Meaning, his intent to consider the scraps to be meat restores their status even in the world of issur. Tosafos asks on Rashi, where do we ever find that intent could be the determining factor as to whether a food item is permitted or prohibited!? This would seem to be a machlokes between Rashi and Tosafos whether the concept of אחשביה can even work on a d'oraysa level in the realm of issur v'heter.

The gemara on 120a said that חלב -animal fat that had been liquefied should not be included in the prohibition of eating חלב since it would be drinking and not eating, and we need a special source in the Torah to include it. However, the gemara says that blood which the torah forbids as an issur to eat in it's natural state (as a liquid) would also be forbidden if it were congealed - כיון דאקפיה אחשובה אחשביה - since he gave it status through the act of congealing it. This gemara seems to support Rashi, because we are using the concept of אחשביה to maintain the issur of consuming blood even when it is in solid form. But, upon further analysis, we can ask a more basic question. Why does the gemara require this rationale and not simply state that if liquid blood qualifies as eating, then certainly solid blood would qualify? It seems to me that the gemara is bothered by another issue. Since blood is naturally in a liquid state, consuming it in it's solid state could be considered שלא כדרך אכילה - not the normal way of eating. The gemara is saying that since he congeals it for the purpose of eating it as a solid, it is still considered a normal way of eating. We aren't using this rationale to transform the status of the blood from issur to heter, only to say that it still qualifies as a normal way of eating.

Chulin 116b - Keiva as Rennet

2011-10-19T10:56:00.000-07:00

The mishna speaks about "keiva" which refers to the enzymes that line the stomach wall of the animal, and the "or ha'keiva" - skin of the keiva, which is the actual piece of the stomach wall. The keiva is considered merely "pirsha" and therefore concludes that even the enzymes that line the stomach of a neveila or treifa animal can be used, but one cannot use as rennet the actual wall of the stomach of a neveila animal.

Rashi discusses milk that is found in the keiva of the animal that is then salted together with the stomach of the animal. Rashi points out that to permit using this milk that was salted with the stomach as rennet, we would have to assume that the milk found in the stomach qualifies as "pirsha" similar to the enzymes. Rashi rejects this notion and considers the milk to be actual milk so that when salted with the meat of the stomach qualifies as meat salted with milk and becomes assur m'drabonon as bassar b'cholov. We would then say that חתיכה נעשה נבילה so that all that milk has status of issur and when used as rennet will spread issur to all the milk since we say min b'mino is not batul (this is rashi's opinion 109a and many other places that we pasken min b'mino isn't batul. tosafos disagrees and holds that we pasken min b'mino is batul - but in this case where it is effective in being ma'amid the cheese, even tosafos would agree that we don't say bitul).

Rashi implies that had we considered the milk inside the stomach to be merely "pirsha", we would be able to compare this case to fish that was placed in a meat dish, which can be eaten with milk using the concept of נ"ט בר נ"ט, meaning a second generational no'sein ta'am. Both the Rashash on Rashi and the Shach (y.d. 87, 31) point out that even if we were to consider the milk that was salted with the stomach lining to be "pirsha" it would still not be comparable to the hot fish on a meat plate that can be eaten with a dairy food. The concept of נ"ט בר נ"ט only applies when the second generation flavor stand alone as a permitted entity that you are now going to use with milk. However, when the milk is salted with the skin of the stomach, the "pareve" milk inside the stomach absorbs a ta'am rishon of meat. We then take that ta'am rishon and mix it with milk to create cheese. Since the ta'am sheini of meat is immediately mixing with milk, we consider that to be an issur. Rashi writes that he originally thought that the milk in the stomach qualified as pirsha and was matir, implying that he holds that if the milk were truly pareve because it was considered to be "pirsha" then we could compare it to the case of hot fish in a fleishig plate that could be eaten with milk, and doesn't seem concerned with the aforementioned distinction.

Rashi 111b (d.h. nosein ta'am) writes explicitly that one cannot put hot milk in a fleishig bowl because the second generation flavor of meat is going directly and immediately into the milk. The case here, even if we consider the milk in the stomach to be "pirsha" should be exactly identical to the milk being put in a fleishig plate where Rashi himself holds that it becomes assur!

Chulin 115a - kol she'tavti le'cha

2011-10-18T12:38:00.000-07:00

Rav Ashi says that the source for meat and milk being prohibited to eat and benefit from is the pasuk which says לא תאכל כל תועבה from which chazal darshen כל שתעבתי לך הרי הוא בבל תאכל. The gemara suggests that the same problem should apply to food cooked on shabbos, and it should be prohibited to eat and benefit from, but darshens from the pasuk of כי קדש היא לכם that ma'aseh shabbos is permitted. The gemara further tries to suggest that when one violates the prohibition of plowing with an ox and mule together or muzzling while working, the product should be forbidden. The gemara answers that since we permit ma'aseh shabbos, we should certainly permit the products of plowing with an ox and mule, or muzzling it while working. Rashi struggles with an obvious question, why wouldn't we also learn from ma'aseh shabbos that even bassar b'cholov should be permitted to derive benefit from. Rashi explains that there is a difference. When it comes to meat and milk, one is eating the actual issur that the Torah despised, whereas by ma'aseh shabbos and these other aveiros, we are merely speaking about the product of the issur, not the issur itself.

Tosasfos (end of d.h. choreish) struggles with why we consider the food cooked on shabbos to be merely the product of the aveira but not the תועבה itself, whereas by meat and milk we consider the food to be the actual תועבה that was despised by the Torah? Tosafos explains that it must have to do with how apparent the issur is within the item. By meat and milk where the issur is apparent in the product, the product of the aveira is considered the תועבה, but by ma'aseh shabbos where the issur isn't apparent in the product because one cannot tell from the product that it was cooked on shabbos, the food isn't considered the תועבה.

Tosafos approach seems to be using a d'rabbonon style logic to distinguish between bassar b'cholov and ma'aseh shabbos on a Torah level. It would seem difficult to say that appearance of the product would determine whether the Torah renders it a תועבה. The Rashash suggests another distinction to answer Tosafos question. The cooking of meat and milk is that act of prohibition that the Torah forbids, therefore the product of that act is considered a תועבה. But by ma'aseh shabbos the Torah doesn't forbid specifically the cooking of food, rather the Torah forbids any melacha to be done on shabbos. The food that is cooked on shabbos is not a direct product of what is specifically forbidden by the Torah, therefore not considered a תועבה.

I would like to suggest a slightly different approach. According to the approach that meat and milk that have been cooked together are forbidden to eat and benefit from because they are considered a תועבה due to the fact that an issur was done with them, it should only be forbidden if cooked by a Jewish adult. Had the cooking been done by a child or at least by a goy, where there was no violation in the process of cooking the product shouldn't be considered a תועבה. Yet, Rashi 114b writes that even if cooked by a goy or a child (rashi implies that we don't render an aveira done by a child to be a ma'aseh aveira), we would consider the product a תועבה. Rashi 114b explains that it is not the act of the aveira that renders the product a תועבה, rather the תועבה is the item itself. Rashi understands that it is as if the Torah would have said that meat and milk is a תועבה, therefore stay away from cooking it. When the Torah identifies an item and forbids an action associated with that item, it can be understood that the action doesn't cause the item to be forbidden, rather the torah recognizes the item as something despised herefore forbids the action i.e. cooking. This would only apply when there is a specific item referred to by the Torah such as meat and milk. The Torah considers meat and milk that is cooked together to be a תועבה, therefore forbids any Jew from cooking it. But, even if a goy were to cook it, the item is still a תועבה. In contrast to the issur of ma'aseh shabbos - the Torah doesn't despise the product, therefore forbid the action of cooking. If that were the case then even something cooked by a goy should be included. The fact that it is only considered ma'aseh shabbos when done by a Jew indicates that the action is what is considered forbidden, and the food is merely a product of the forbidden action to cook. This would not give the food a status of תועבה.

Chulin 114a - Is it Forbidden to Benefit from McDonalds?

2011-10-17T10:28:00.000-07:00

According to Shmuel there is an extra pasuk to teach that the issur of meat and milk is binding even on top of a preexisting issur of neveila, therefore one who eats neveila cooked in milk would receive lashes. However, the gemara cites an argument between R. Ami and R. Asi limiting the discussion to be whether one who cooks neveila with milk would receive lashes for the act of cooking, but all agree that since the eating is already forbidden due to the issur of neveila, the prohibition to eat meat and milk isn't binding on top of the preexisting prohibition of neveila.

Based on this, the Rambam (machalos assuros 9) paskens that one who cooks neveila with milk would receive lashes for cooking meat and milk, but one who eats it wouldn't receive lashes for eating meat and milk. However, both the gemara and the Rambam (in mishne torah) are silent regarding the prohibition to benefit from meat and milk. Would that be similar to eating and not apply to neveila, or would it be compared to cooking and apply to neveila?

The Dagul M'rvava (y.d. 87) cited by the Pischei Teshuva (6) quotes the Rambam in his commentary to the mishnayos on krisus who suggests that benefit and eating go hand in hand. Since the issur to eat meat and milk isn't binding on top of the prohibition of neveila, the prohibition to benefit is also not binding. The Pischei Teshuva quotes in the name of the kanfei yona who disagrees with the dagul m'ravava, and the Chasam Sofer who says that one who relies on the dagul m'rvava can't be rejected, but in his opinion the kanfei yona is more correct.

The source of the dagul m'rvava is the Rambam in what he refers to as a נקודה נפלאה in his commentary on krisus. The Rambam asks that the issur to eat basar b'chalav should be binding on the issur of neveila since it is an איסור מוסיף by virtue of the fact that meat and milk is forbidden even to derive benefit from. To this the Rambam says that the issur to eat and the issur to benefit aren't independent entities, rather the prohibition to benefit is an extension of the issur to eat (we see a similar concept in succah 35a by an esrog that is forbidden to eat where rashi writes that it doesn't qualify as לכם. Rashi explains that "lachem" implies that you can benefit from it in all ways - an esrog that is forbidden to eat is missing a major source of benefit). Based on this Rambam, the issur to benefit isn't considered a new issur to cause the issur achila to be binding, and the dagul m'rvava therefore proves from here that even the issur to benefit itself wouldn't be binding. There is a lot of discussion about this Rambam because he seems to say that the approach only works because there isn't an independent source to forbid benefiting from meat and milk, yet in sefer hamitzvos he writes himself that the third repetition of לא תבשל גדי בחלב אמו is an independent source to forbid benefit.

Chulin 103b - Rules of Eating to violate Eiver Min Hachai

2011-10-06T16:06:00.000-07:00

The gemara (according to Rashi) has two versions of R. Yochanan as to whether the concept of כדי אכילת פרס applies to אבר מן החי, like it would by all other issurim. On the top of the page the gemara assumed that it would not apply, and on the bottom of the page when it deals with eating a half kezayis and then another half kezayis, assumes that it does.The rationale that אבר מן החי would be different and not have this halacha l'moshe misinai is that even inedible foods combine to the shiur of kezayis. Since אבר מן החי is a chiddush, the halacha l'moshe misinai that allows us to combine all eating within כדי אכילת פרס wouldn't apply to a chiddush case. Without the concept of כדי אכילת פרס the gemara assumes that the entire kezayis must be consumed בבת אחת, but then enters a discussion as to what would qualify as בבת אחת - at one time.

There seem to be three opinions in the gemara what would qualify as בבת אחת, and is dependent on the definition of אכילה. R. Yochanan considers eating to be a function of הנאת גרונו - the mouth. Reish Lakish considers eating to be a function of הנאת מעיו - the stomach. Therefore, R. Yochanan will say that as long as there is a kezayis in the mouth at one time, it is considered בבת אחת, whereas Reish Lakish will say that a kezayis must be swallowed at one time (Rashi explains that it is not possible to chew a kezayis and swallow it all at once since it will naturally begin to slip down his throat, so the only way to swallow a full kezayis would be without chewing. Rashi also seems to hold that swallowing something which is normal to chew wouldn't constitute דרך אכילה, therefore the gemara is forced to make the case of גרומיתא זעירתא which is normal to be swallowed without chewing).

Within the opinion of R. Yochanan that it only qualifies as בבת אחת if a kezayis enters the mouth at the same time, Rashi and Tosafos argue whether we require the kezayis to literally be one unit when it is put into the mouth (tosafos), or whether it can be cut in half so long as there will be a full kezayis in the mouth at one time (rashi). Similarly, they will argue in the opinion of Reish Lakish. Rashi should only require a kezayis in the stomach at the same time, even if it were swallowed in parts (this is actually tosafos question on rashi because reish lakish seems to hold that a full unit of kezayis must be swallowed at one time), whereas Tosafos requires a full unit of a kezayis to be swallowed at one time.

However, according to R. Elazar both Rashi and Tosafos would agree that if one would eat a half kezayis and after a slight pause eat another half, it would qualify as an eating בבת אחת to be chayev. The concept of כדי אכילת פרס would have only permitted the pause to be longer between the two half kezaysim. Since we don't apply כדי אכילת פרס, the pause must be very slight - רש"י - שנתרחקו זה מזה מעט.

The Rambam (Ma'achalos Ha'asuros 5:3-4) has a very different approach in this gemara. Firstly, the Rambam understands that the case of חלקו מבחוץ is not when one eats a half kezayis and then another half kezayis as rashi says, nor is it a case where one splits the kezayis in half and puts both halves in his mouth together as Tosafos says. Rather, the case is where he separates the meat from the bone so that it is no longer one unit. The Rambam understands that the chiddush ha'torah which allows you to combine the bones to make up the kezayis only applies when the integrity of the limb is maintained. As soon as one separates the meat from the bone, the bones are no different than bones by other issurim which don't qualify as an eating. Therefore, the case of חלקו מבפנים that you are going to be chayev is when one puts the meat in his mouth with the bone, and only in his mouth do they separate from one another. Since they were placed in his mouth together, they combine.

The Rambam also holds that paskening like R. Elazar wouldn't undermine the assumption of R. Yochanan. R. Elazar who allows one to be chayev even if they would break the eiver into pieces and eat a half kezayis and then another half, would only apply if ultimately he ate a full kezayis of MEAT. Therefore, if he actually ate a full kezayis of meat, he is chayev even though he separated the meat from the bone and ate it little by little (even with slight pause in between) which is the halacha of R. Elazar. But, in order to combine the bones with the meat to fill the shiur of kezayis, he must place the bone in his mouth together with the meat and together they must make up a kezayis - which is the halacha of R. Yochanan. In other words, the Rambam understands that R. Elazar takes issue with the definition of eating בבת אחת that R. Yochanan establishes by relaxing the requirement of putting it in one's mouth together (when there is no need for bones to be considered toward the kezayis), but agrees with the din of when bones can be combined - only when they are together with the meat at the time they are consumed.

Chulin 102a - Eiver Min Ha'chai

2011-10-05T16:00:00.000-07:00

The gemara says that even though the prohibition of אבר מן החי for a Jew may only apply to kosher animals (acc. to chachamim and R. Meir), for a goy it will apply even to non-kosher animals. Tosafos 33a questions how this can be. Wouldn't this be a violation of the rule that there is nothing prohibited to a goy that is permitted to a Jew - ליכא מדעם דלישראל שרי ולעכו"ם אסור. Tosafos says that since there would be a prohibition for the Jew to eat a non-kosher animal, even though it wouldn't be considered אבר מן החי, it would not violate the principle of something being permitted to a Jew and prohibited to a goy. Tosafos holds that the prohibition on the goy doesn't have to be the same prohibition on the Jew so long as there is some prohibition (R. Akiva Eiger in a teshuva 165 qualifies this idea and says that it would only be when the prohibition on the Jew is a lack of shechita such as a non-kosher animal, to the exclusion of a treifa where it has already been shechted properly and has not relation to the issur of eiver min ha'chai).

It seems to me that Rashi in our sugya is also addressing the same question. Rashi writes -

אבל בן נח מוזהר על הכל, דכל דקרינא ביה בשר לחודיה אכול, קרינא ביה אבר מן החי לא תאכל. Rashi says that whenever it is permitted to eat the meat after being killed, there is an issur of eiver min ha'chai to eat the meat prematurely. Perhaps rashi understands that the principle of there is nothing prohibited to a goy that is permitted to a Jew isn't violated here because the same exact principle that applies to the goy - don't eat alive what you can eat dead, applies to the Jew. The only difference is that the Jew cannot eat non-kosher animals when dead so there is not issur of אבר מן החי when it's alive, but for the goy there is. Since the principle applies equally to the Jew and goy it wouldn't violate the rule of ליכא מדעם דלישראל שרי ולעכו"ם אסור.

Chulin 101b - The Two Prohibitions of Yom Kippur

2011-10-05T09:45:00.000-07:00

Rashi explains that when the gemara tries to prove that R. Yossi Haglili holds of איסור כולל from the fact that when yom kippur falls on shabbos and he does melacha he has to bring a korban both for shabbos and for yom kippur. Even though YK and shabbos are entering at the same time, one can only be liable for both since if theoretically one would start before the other, each can be binding on top of the first. Rashi explains that even if shabbos would enter prior to YK, the prohibition of YK would be binding on top of shabbos as an איסור כולל. The fact that YK forbids not only doing melacha, but also eating and drinking makes it an איסור כולל to allow the prohibition of melacha to be binding on top of the prohibition against doing melacha on shabbos - מיגו דאיתסר באכילה משום יוה"כ איתסר ליה נמי מלאכה משום יוה"כ. The difficulty of this rashi is how can we say an איסור כולל from the issur to eat to the issur to do melacha, they are totally separate prohibitions. From rashi we learn a new approach in understanding the nature of the issur to eat and to do melacha on YK. Although in the counting of mitzvos they are completely independent, and would seemingly be two completely separate prohibitions that apply on the 10th of Tishrei, that is not how rashi is viewing it. Rather, the kedusha of YK results in two halachos, one is a prohibition of eating and the second is the prohibition of melacha. Both are outgrowths of the kedushas ha'yom and not independent prohibition that apply to the calendar date of 10th of Tishrei. It would now make sense that Rashi can consider YK in the general sense to be an איסור כולל from eating to melacha, since both are merely outgrowths of the kedusha of YK.

I would like to suggest that the Rambam would not agree with rashi. Rambam (Hil. Shevisas Asor 1:6) writes that the mitzvah d'oraysa to add to YK before and after is limited to YK (not shabbos and yom tov) and limited to the עינוי of YK, it doesn't extend m'doraysa to the issur melacha. The Minchas Chinuch clearly understands the Rambam this way. The Rambam would seem to hold that m'doraysa when one is me'kabel YK early, they are prohibited from eating but not prohibited from doing melacha. The fact that by accepting kedushas ha'yom one can be prohibited from eating but not from melacha implies that the they are not an outgrowth of the kedushas ha'yom, rather two independent halachos that apply on the 10th of Tishrei and could theoretically exist one without the other.

Chulin 99b - Bitul in more that 60x

2011-10-03T12:29:00.000-07:00

The Rama (y.d. 98) writes that foods with a very strong flavor such as spices are not batul in 60x because the flavor is still able to be tasted, however the Rama limits this to when the item is prohibited in and of itself (i.e. teruma or avoda zara), to the exclusion of spices that just have a non-kosher item absorbed in it. The source for the Rama is our gemara where we see that "grissin" which fall into lentils can give flavor even if there is 100x as much to be mevatel. Clearly, the idea of 60x is an assumption but doesn't apply to cases where the flavor is actually tasted. But, regarding the Rama's stipulation that this rule would not apply to foods that have the taste of issur absorbed in them, but are not assur themselves, the Gr"a quotes those who disagree. The Gr"a writes that in our gemara we find that fish brine isn't going to be batul until there is 192x as much, even though the actual water and vinegar in the brine isn't technically assur, just that it has the flavor of the fish fat absorbed inside of it. The same should apply to a spice which has the flavor of non-kosher meat - so long as the spice could be tasted in whatever dish it falls into, it should be assur even if there is 60x as much.

The Shach writes that when spices are able to assur foods even when there is more than 60x, it is only an issur d'rabonon. R. Akiva Eiger quotes the Ran who disagrees and holds that it would be d'oraysa. The Ran is easy to understand, but the Shach is harder to understand - why would it only be d'rabonon? It seems that the Shach understands that once there is 60x of the mutar food to the assur food, the flavor is weakened to a point that it isn't considered true ta'am and therefore it is only assur m'drabonon.

Chulin 99b - Gid Hanashe is Prohibited to Derive Benefit From

2011-10-02T13:43:00.000-07:00

The gemara has a discussion in Pesachim about things that are prohibited to eat, whether they should also be prohibited to derive benefit from. Either way, one of the approaches to understand the nature of issurei achila - things that are prohibited to eat, is that it is essentially a prohibition to derive benefit, but the Torah only forbids the epitome of benefit from the item - eating. Meaning, that the nature of issur achila is that it is prohibited to derive the benefit that this item is meant to provide which is the benefit of eating. This would explain for example why we wouldn't consider an achila gassa (over eating), or eating of something which taste bad to be a violation of eating, since there is no pleasure or benefit associated with that eating.

However, Tosafos makes a calculation in our sugya that undermines this premise. Tosafos proves from the gemara in Pesachim that according to the opinion who considers giddin (sinews) to have flavor, it is only prohibited to eat. But according to the opinion who doesn't consider it to have flavor, it is even prohibited to derive benefit from. Since we rule that Gid Ha'nashe doesn't give off flavor, we must rule that one cannot derive benefit from it - therefore it cannot be gifted to a goy, if the presence of the gid hanashe will raise the stature of the gift. Now, if one were to eat gid hanashe they would certainly be in violation of the prohibition to eat gid hanashe, even though there is no flavor so that they cannot be in violation of the issur to derive benefit. If it were true that the prohibition to eat is a form of deriving benefit, one couldn't be in violation of eating gid hanashe since there is no benefit and would only be in violation on selling or giving to a goy in which there is benefit. The fact that one is in violation even for the eating of gid hanashe which has no flavor, indicates that eating is in no way contingent on the pleasure or benefit one receives from the food, rather it is an act that the Torah forbids regardless of the benefit it provides.

Chulin 94b - Rules of Geneivas Da'as

2011-09-28T09:36:00.000-07:00

The gemara on amud alef has three answers to explain the mishna. Tosafos writes that according to the first answer of the gemara that the mishna is speaking in a place where they call out so it is permitted to purchase from a goy, the mishna would contradict the braisa. To reconcile the contradiction Tosafos is forced to distinguish between a sale and a gift - only by a sale where money is being paid is there an issur of g'neivas da'as. However, according to the second and third answer Tosafos says that only when you explicitly lie is it considered g'neivas da'as, but if you just do something where the other party draws his own conclusion it would be considered איהו הוא דקא מטעי נפשיה (as we see in the gemara and isn't considered gneivas da'as). Tosafos modifies this slightly by saying when one does an action that is suggestive such as opening up a barrel of wine in the presence of the guest indicating that it is in his honor, that is tantamount to actually saying that you are doing it for him. Rashi seems to maintain that once the gemara introduces the concept of איהו הוא דקא מטעי נפשיה, we limit ALL the cases of geneivas da'as to where he explicitly told the person that he is doing it for him, or explicitly told the person that it was shechted meat. We see from here that one is not obligated to correct his friends misunderstanding of the situation, but cannot actively mislead him.

Chulin 94a - Geneivas Da'as

2011-09-26T16:50:00.000-07:00

The gemara in trying to figure out the p'shat in the mishna that prohibits sending meat from which the gid ha'nashe was removed to a goy, offers a few explanations. The final explanation is that it is a violation of geneivas da'as. Being that the first two answers are able to explain the mishna without inventing a concept of geneivas da'as, perhaps we shouldn't pasken like the approach that relies on this concept. The Rosh takes this approach and rejects the notion of geneivas da'as when one sends a gift to a goy, such as the case in the mishna and limits the problem of geneivas da'as specifically to a sale. With this he is able to work out the various other sources that indicate geneivas da'as is a real prohibition, but rejects applying the concept to the case of the mishna since it was being sent as a gift rather than a sale (עיין במעדני יו"ט ס' ר' שמוכיח מהש"ס שאין חילוק בין מכר למתנה). It would seem from the Rosh's approach that geneivas da'as applies to a sale but not a gift, that it is essentially an offshoot of the prohibition to steal. When one is giving a gift and not receiving anything in return as part of the compensation, it cannot be considered stealing. But, when one is receiving some level of compensation, it is prohibited to fool the buyer since the entire compensation is now being given under a false pretense (even though the buyer may have paid the same price even had he known the truth).

In my opinion there are 3 approaches to the nature of the issur of geneivas da'as. The Rosh holds that it is an offshoot of actual theft. Rashi and the Rambam reject the approach of the Rosh, yet differ in how they portray the issur.

Rashi writes multiple times in the sugya - ונמצא מחזיק לו טובה חנם. This implies that the prohibition is not stealing the compensation because rashi uses this logic even in the case of a gift where there is no compensation. Rather, the prohibition is not at the time of the geneivas da'as, it is violated afterward when you accept the goodwill of the receiver and his interest in responding in kind for something that he thinks you did for him, when in truth you didn't do for him as much as he thinks you did. It would seem from rashi that if one would notify the goy immediately after the violation of the geneivas da'as before he will have feelings of goodwill, he will avoid the entire prohibition. The issur is not in fooling the goy, nor is it in stealing compensation for the goy, but is is accepting his goodwill.

The Rambam in Hil. Dei'os 2:6 has what would be considered the simplest approach to the nature of geneivas da'as. The Rambam writes

אסורלאדם להנהיג עצמו בדברי חלקות ופיתוי,ולא יהיה אחד בפה ואחדבלב אלא תוכו כברו והענין שבלב הוא הדברשבפה, ואסורלגנוב דעת הבריות ואפילו דעת הנכרי,כיצד לא ימכור לנכריבשר נבילה במקום בשר שחוטה, ולאמנעל של מתה במקום מנעל של שחוטה וכו'ואפילו מלה אחת של פתויושל גניבת דעת אסור, אלאשפת אמת ורוח נכון ולב טהור מכל עמל והוות

The Rambam considers the prohibition to have nothing to do with the subject of the geneivas da'as. It is a violation of the מידת האמת that is expected of a Jew, and by lying to the anyone, even a goy, he is undermining this essential midah of being truthful. The difference between the Rambam and Rashi is that according to Rashi the prohibition exists because of the outcome of the undeserved goodwill that the Jew will receive from the goy, whereas according to the Rambam the issur is the act of deceiving another human being.

Chulin 89b - Merit of Avrohom Comparing Himself To Dirt and Ash

2011-09-21T16:59:00.000-07:00

The gemara says that in the merit of Avrohom Avinu comparing himself to dirt and ash, the Jewish people merited the parah aduma which involves ash and the Sotah which involves dirt. The Maharsha explains that it doesn't mean to say that had Avrohom not made the comment אנכי עפר ואפר, we would never have a way to remove the tu'mah of tu'mas meis and would never have a method for the Sotah would never have a method to return to her husband. Rather, there would have been a far more complex and difficult process to achieve these results. In the merit of Avrohom humbling himself with the statement of אנכי עפר ואפר, they were able to achieve these results in an easier form using mere dirt and ash.

I would add that the attribute that most greatly separates between people is that of arrogance. Humility is an attribute that breeds togetherness. In the merit of Avrohom's humility, we were zocheh to two mitzvos that bring people back together. The ashes of the para aduma allow tamei people to once again interact with the tahor, and the dirt of the sotah allows her back to her husband.

The gemara asks that the mitzvah of כסוי הדם should have also been in the merit of Avrohom comparing himself to dirt.The gemara responds that there has to be a tangible benefit that comes from the mitzvah, and by covering the blood there is no tangible benefit. It seems to me that Rava who is the person making the statement is li'shitaso. We find that Rava himself on 89a takes a position of מצות לאו ליהנות ניתנו, which simply means that the merit of the mitzvah in itself doesn't qualify as a benefit. Only physical benefits qualify as real הנאה. Therefore, Rava holds that the benefit of having a mitzvah to perform thereby an opportunity to receive reward in the world to come, doesn't qualify as a benefit and therefore isn't significant enough to be the reward for Avrohom's statement. It is only the physical and tangible benefit that come from פרה אדומה and עפר סוטה that can be the reward for Avrohom's statement.

As an aside, Rashi says that the ability to eat the meat cannot be considered the "benefit" of כסוי הדם since the kashrus of the meat is not at all dependent on kisuy ha'dam. The Pri Megadim (y.d.sifsei da'as 28:2) says that we cannot prove from here that it is permitted to eat the meat without kisuy ha'dam. Perhaps Rashi means to say that if there wouldn't have been a mitzvah to cover the blood, it would have been permissible to eat the meat, so we can't consider this mitzvah to be a real benefit. However, now that there is a mitzvah to cover the blood, it is entirely plausible that until it is done, the meat cannot be eaten. Nonetheless, l'ma'aseh we assume that the mitzvah of kisuy ha'dam has zero to do with the ability to eat the meat. Even if by tevilas keilim for example, the use of the vessel prior to tevila may be a bitul of the mitzvas aseh, by kisuy ha'dam the kashrus of the meat doesn't seem to be at all connected to the mitzvah on the blood.

Chulin 87a - Paying 10 Gold Coins

2011-09-20T20:31:00.000-07:00

The gemara discusses the issue of paying 10 gold coins for robbing someone of their mitzvah. The gemara questions whether a mitzvah containing multiple brachos such as birchas hamazaon is 10 zehuvim per bracha, or 10 for the entire mitvah. Assuming it is per bracha, the gemara assumes the amount for birchas hamazon would be 40. Rashi explains that 10 per bracha, which means that the fourth Rabbinic bracha of ha'tov v'hamei'tiv would also have 10 zehuvim. Tosafos (d.h. v'chayvu) questions when one is called to the Torah and another grabs the aliya whether the latter owes 10 zehuvim. Tosafos offers two arguments why the person who "stole" the aliya wouldn't have to pay: 1. the rights to an aliya belongs to everyone (perhaps this is only when one was supposed to get the aliya, but wasn't yet called up?). 2. Even if a Yisroel stole the aliya of the kohein he wouldn't have to pay because וקדשתו - לכל דבר שבקדושה לפתוח ראשון ולברך ראשון, is only an אסמכת. Tosafos seems to hold that the requirement of וקדשתו is only d'rabonon, and since it's not from the Torah, there isn't any obligation to pay for stealing that right.Yet, in the very next Tosafos they seem to hold that one is required to pay 10 zehuvim for both ha'tov v'hameitiv and borei pri ha'agfen, both of which are only d'rabonon?

To me it seems that Tosafos isn't focusing on whether the mitzvah of וקדשתו is d'oraysa or d'rabonon. First of all, the magen avrohom (201:4) points out that the gemara in gittin 59b clearly holds that וקדשתו is d'oraysa. Secondly, even if it d'rabonon, there should be a requirement of 10 zehuvim. Tosafos fully agrees that the requirement to give kedusha to the kohein is d'oraysa. However, the Rabbonon came along and gave specific examples in which the kohein must be honored, one of the being the first aliya. But, both the Torah and the Rabbonon never gave this as a right and entitlement of the kohein, rather they demanded of the tzibbur to honor the kohein in this manner. The concept of paying 10 zehuvim is only when one steals a mitzvah that their friend is entitled to, it doesn't apply when one merely fails to fulfill their obligation to that person. Tosafos perhaps understands that had the Torah been referring specifically and directly to giving a kohein the first aliya, it would be understood not just as an obligation of the tzibbur but an inherent right of the kohein granted to him by the Torah, and if stolen from him he would be owed 10 zehuvim. But, since the specifics were only introduced by the Rabbonon, it is not an inherent right, rather they placed an obligation on the tzibbur. Therefore, even when the tzibbur fails to fulfill their obligation, no one would owe money to the kohein.

Chulin 86a - Difference Between the Mitzvah of Covering Blood and Shechting Mother and Child On Same Day

2011-09-19T16:50:00.000-07:00

The simple reading of the mishna implies that both R. Meir and Chachamim agree that the shechita of a child is invalid so that there is no requirement to cover the blood, yet in the end of the mishna the Chachamim hold that if a חרש שוטה וקטן shechts the mother, one cannot shecht the child on the same day because we are concerned that the shechita is actually valid. The gemara discusses why the Chachamim would be more strict to forbid shechting the child on the same day than with the mitzvah of covering the blood, and ultimately cannot come up with any rationale. This forces the gemara to conclude that the Chachamim would indeed argue by the mitzvah of covering the blood as well, and would require the blood to be covered after the shechita of a חרש שוטה וקטן.Tosafos raises a very interesting question. There seems to be a very obvious distinction between the mitzvah of covering the blood and the prohibition of shechting mother and child on the same day. It is typical for the Rabbonon to uproot and be passively be mevatel an aseh, a positive mitzvah, in order to preserve a negative commandment and prevent it's violation as they did with shofar on shabbos. Therefore, it is perfectly logical to absolve the shechita of the child from the mitzvah of covering the blood (note: the mitzvah couldn't be on the child, rather on those watching as rashi writes), in order to preserve the prohibition of neveila because if they would require the covering of the blood it would mislead people to thinking that the meat was kosher. However, in the context of אותו ואת בנו, it wouldn't make any sense for the Rabbonon to absolve from the prohibition of אותו ואת בנו and permit the slaughtering of the child in order to preserve the prohibition of neveila. Why would they be more lenient about one negative commandment in order to preserve another? Tosafos suggests that in truth the assumption is that the animal is a neveila and there is no mitzvah of covering the blood and no prohibition to shecht the child. However, being that there is a small chance that their shechita is valid, it would have been worthwhile to cover the blood on the off chance that the shechita was valid. Yet, the Rabbonon didn't want this done because it would mislead to the eating of the animal. Similarly, the gemara asks they should have been concerned that being machmir for not shechting the child (which is not technically a concern since we assume their shechita was invalid), would lead to the eating of the animal (which is really assumed to be assur). That is why the gemara understands that there shouldn't be any distinction between the reisha and seifa of the mishna.It seems to me that Rashi would not be able to use Tosafos answer. Tosafos answer is predicated on the premise that the animal shechted by a חרש שוטה וקטן is really a neveila, not just a safeik and therefore a more real concern than אותו ואת בנו. But, Rashi (ד"ה מאי שנא, וד"ה לחומרא) seems to view it as a regular safeik according to the Rabbonon whether the shechita is valid. Therefore, Tosafos question comes back. It seems to me that the rationale as to why the gemara felt it would make sense to be more concerned with the safeik of neveila, than with the safeik of אותו ואת בנו, is because if we were to do something that would indicate the neveila was permitted to eat (such as cover the blood or abstain from shechting the child that day), one would definitely eat the neveila. There would be no question that one would not want to waste meat that seemed permitted and would definitely use it, therefore by permitting neveila it would unquestionably lead to the issur. Whereas saying that one may shecht the child on the same day will not definitely lead to an issur, since the owner would only shecht it if he actually needs it. Therefore, it would make sense for chazal to ignore the issur of אותו ואת בנו if by being concerned for it would lead to the violation of eating neveila.

Chulin 85a - CARRYING SHOFAR FOR WOMEN

2011-09-18T22:50:00.001-07:00

The gemara uses shofar as a pircha to the kal v'chomer of rav yossi. The logic is that shofar is an example of something which doesnt push off shabbos even if it is a definite obligation, yet the safeik mitzvah such as a tumtum who is a safeik woman, can blow on yom tov. The point of the gemara is to show that yom tov is less severe than shabbos. However, the gemara never clarifies what actual prohibition we are speakingmes to shofar on yom tov. Tosafos offers 2 suggestions: 1. The prohibition being discussed is the issur of carrying. Since women aren't obligated in shofar it should be prohibited to carry for them. Yet, a tumtum who may be a man and may be fully obligated, can carry a shofar. 2. The issue being discussed is merely an ussur d'rabonon of carrying on yom tov. According to the first approach, the shares aryeh 106 proves that a shofar cannot be carried to the public domain on yt for the sake of a woman. This is also the.implication of tosafos at the end of the sugya who implies that similar to semicha, only an issur d'rabonon can be done, not carrying which is doraysa. Rav Moshe (oc 3:94) has a very long and complicated teshuva arguing on the shaagas aryeh and proving that a shofar or lulav can even be carried on yt where there is no eiruv to enable a woman to do the mitzvah.

Chulin 82a - Hazmana Milsa

2011-09-14T16:16:00.000-07:00

R. Akiva Eiger writes in a Teshuva (3) that the issue of whether by something that actually has kedusha i.e. the klaf of a sefer Torah, we say that setting aside is significant and makes it assur even before it is used, is dependent on a machlokes in our gemara. According to Rav Yanai who says that sending down the eglah arufa to nachal eisan makes it assur, the same would be true with anything that is inherently an item of kedusha - הזמנה מילתא היא. But, according to those who say that it would only be assur by the shechita, they would have to hold that even by something which is an actual גוף הקדושה (not just תשמישי קדושה), the הזמנה would not be significant enough to create an issur.

The gemara says that according to the opinion who says that by eglah arufa the sending it down to nachal eisan makes it assur, by the birds of the metzorah the purchasing of the birds for the use of the metzorah would make it assur. Rashi explains how we can compare the purchasing of the birds to the sending of the calf to nachal eisan, we should compare the purchasing of the birds or initial taking for metzorah purposes with the purchasing or initial taking of the calf. Rashi explains that by egla arufa where there is a later act prior to shechita to be considered the designation of it and create the issur, we assume that act is what creates the issur. But by the birds where there is no later act, the purchasing or taking is considered the act that creates the issur. The difficulty with this in light of R. Akiva Eiger is that if we are really dealing with an issur of הזמנה מילתא היא, we should consider the very first act of designation to be hazmana, not the very last act before shechita such as the sending down to nachal eisan.

Chulin 81a - Nituk L'aseh

2011-09-14T12:15:00.000-07:00

The gemara says that the la'av of לא ירצה which says that you can't be makriv an animal with a mum and the gemara darshened that it should include anything which is not fit to be makriv, wouldn't include a מחוסר זמן. Meaning, an animal that is premature such as before 8 days old, or אותו ואת בנו which is also considered premature, the torah is menatek l'aseh. Tosafos understands simply that the gemara means that the aseh pulls it out of the category of the la'av entirely so that one cannot be in violation of לא ירצה by being makriv an animal that is מחוסר זמן. However, Rashi seems to understand that the language of נתקו לעשה is using the standard mechanics of a לאו שניתק לעשה where the halacha is that you certainly violated the la'av but there is no malkus. The difference between rashi and tosafos is when one is makriv an animal that is מחוסר זמן, did he violate the la'av of לא ירצה - according to rashi he did, but according to tosafos he didn't. Tosafos asks on Rashi that this doesn't seem to follow the normal setup of a לאו שניתק לעשה. Normally it means that one can do something to fix up the la'av after violating the aseh such as returning the stolen goods or sending away the mother bird. Here, once you are makriv the animal prematurely (or on the same day as it's mother), there is nothing to do to fix it up. The aseh is something that should have been done instead of violating the la'av but doesn't help to "fix" the la'av. To explain Rashi's position it seems that rashi holds that a לאו הניתק לעשה doesn't have to be something active, rather it is a technicality of how the Torah presents the la'av. Rashi understands that when the Torah presents the la'av as something that can only be done after the aseh, it is a לאו שקדמו עשה and doesn't qualify as a לאו שניתק לעשה, therefore you would get malkus. But, whenever the aseh only exists after the la'av even though it doesn't fix the la'av (because once the la'av is violated, there is no ability to do the aseh), the Torah is indicating that there is no malkus for the violation of the la'av. This approach works in Rashi in our sugya and would answer the question that Tosafos has, but doesn't work in the sugya in makos of בטלו ולא בטלו and קיימו ולא קיימו which focus very much on the ability or inability to fulfill the aseh after the violation of the la'av.

Chulin 79b - Equating Simanim of a Mule to that of a Lost Object

2011-09-13T10:47:00.000-07:00

The gemara says that R. Abba demanded that when two mules are tied to a wagon, they must both have a mother who is a horse and father who is a donkey, or the reverse. But if one would have a mother who is a donkey and the other a mother who is a horse it would be an issur of kelaim since we are machmir for the opinion of R. Yehuda who holds that we disregard the father and consider the child to be the species of the mother. However, R. Abba allowed them to figure out the species of the mother using the simanim of a short tale and long ears being indicative of a mother who is a donkey, and the opposite being indicative of a mother who is a horse. The gemara comments that his willingness to rely on these simanin indicate that he holds simanim are d'oraysa because otherwise he couldn't rely on them for kelayim which is essentially an issur d'oraysa. Rashi comments that whether simanim are indeed d'oraysa is a discussion in baba metziah and R. Abba would be holding that they are d'oraysa.

The Ramban asks that Rashi's connection to the gemara in Baba Metzia regarding identification of either an object or a dead husband, doesn't seem to be at all related to simanim in this context. The issue of using simanim of identification and questioning whether they are "d'oraysa" is because they aren't 100% conclusive since it is possible that another object may possess these simanim as well (whereas a siman muvhak that is conclusive is certainly d'oraysa). However, in our context chazal seemed to have a tradition that every child born from a mother donkey will have a short tail and long ears, and every child born from a mother horse will have a long tail and short ears. To rely on simanim in our context because they are d'oraysa, meaning a tradition from moshe m'sinai that they can be relied on for kelayim, wouldn't be any indication of simanim being d'oraysa when used as identification of an object or person.

It seems that the connection of Rashi forces us to say that the simanim used to identify whether the mother is a donkey or a horse are not a tradition from Moshe Mi'Sinai. Rather, Chazal must have noticed that statistically speaking one could safely assume that when the mule possesses simanim in the ears and tail of a donkey, it's mother is a donkey, and if it possesses simanim of a horse, it's mother is a horse. These aren't absolute, rather statistically correct. Therefore, Rashi holds that the simanim in our context are also identification type simanim rather than being absolute indicators of the species of the mother.

Chulin 78a - Aseh Pushing Off Lo Ta'aseh and Aseh

2011-09-11T13:27:00.000-07:00

The gemara has a rule in many places that although a positive mitzvah (aseh) can push off a negative mitzvah (lo ta'aseh), anytime a mitzvah has a lo ta'aseh and an aseh we don't allow another aseh to push off both the negative and positive mitzvah. The example is the mitzvah of covering the blood of a bird when it's shechted where there is an aseh to cover the blood, but if done on yom tov it would violate an aseh and lo ta'aseh, so we don't allow one to do the mitzvah of covering the blood on yom tov.

However, the question is raised whenever we have a situation of aseh trying to push off aseh and lo ta'aseh, whether we allow the aseh to push off the lo ta'aseh just not the supporting aseh, or do we say that since the aseh can't push off the opposing aseh, it also can't push off the opposing lo ta'aseh. The Riva quoted by Tosafos in Chulin 141a holds that in a situation where there is an aseh opposing a lo ta'aseh and and aseh, if one would fulfill the aseh thereby violating the lo ta'aseh and aseh, they would not get lashes for the violation of the lo ta'aseh because the aseh effectively pushed off the lo ta'aseh, just isn't powerful enough to push off the opposing aseh. In my sefer, Nasiach B'chukecha (page 214) I discussed this issue and showed how it is a machlokes rishonim. In the additions to my sefer, I pointed out that Tosafos on today's daf seems to disagree with the Riva and holds that when we have an aseh up against a lo ta'aseh and an aseh, it would not even push off the lo ta'aseh so that if it is violated there would even be malkus for the violation.

Tosafos D.H. Minayin, asks why do we need a source to teach that the prohibition of shechting a mother and child on the same day would apply to kodshim, the fact that it would be written without any qualification would automatically make it apply to kodshim? Tosafos suggests that perhaps we need the pasuk to say that even if there is a mitzvah that must be done with this animal such as korban pesach, you cannot shecht it if the mother has been shechted earlier that day. Meaning, without a special source we would allow the mitzvah of Korban Pesach to push off the prohibition, but now that we have a source that it applies to kodshim we wouldn't allow the mechanics of aseh pushing off a lo ta'aseh to take place. Tosafos rejects this answer because shechting a child the same day as the mother would be a violation of both an aseh and a lo ta'aseh so even without a special source we would never have allowed the aseh of korban pesach to push off both an aseh and a lo ta'aseh that forbids shechting the mother and child on the same day. Tosafos seems to understand that whether we had a special pasuk declaring that one cannot shecht the child on the same day as the mother to fulfill the mitzvah of korban pesach, or didn't have a special pasuk, the result would be the same since the rule of אין עשה דוחה לא תעשה ועשה wouldn't allow the violation. Now, if the Riva is correct that when we have a situation of אין עשה דוחה ל"ת ועשה we wouldn't give lashes for the violation because the aseh would indeed push off the lo ta'aseh, just not the supporting aseh, then we would still require a pasuk to say that the issur of אותו ואת בנו doesn't apply to kodshim. Without a special pasuk, if one were to shecht the child the same day as the mother, he wouldn't get malkus. Now that we have a special pasuk teaching that even by kodshim animals that are needed for a korban the prohibition applies, there would be malkus for the violation. The fact that Tosafos maintains that the rule of אין עשה דוחה ל"ת ועשה is sufficient even without a special pasuk, implies that the rule of אין עשה דוחה ל"ת ועשה alone would also allow us to give lashes to one who violates, which is against the Rivah.

Chulin 74a - Dangling Limb

2011-09-07T10:49:00.000-07:00

The Gemara concludes that when one shechts an animal with a dangling limb, the shechita is effective on the limb on a Torah level both to prevent it from having an issur status of neveila (or eiver min ha'chai) and to prevent a tu'mah status of neveila. The Rabbonon imposed a rabbinic prohibition against eating it, but didn't impose any tu'mah status. The Rambam (Hilchos Ma'achalos Asuros 5:6) in codifying this halacha writes that the status of a dangling limb on an animal that was shechted is that it is assur but there is no malkus (if it died by itself, it has a status of eiver min ha'chai both for issur and for tu'mah). It is unclear from the language of the Rambam אסור ואין לוקין עליו whether he means to say that it is an issur d'rabonon or an issur d'oraysa just that there is no malkus. The Pri Chadash (Y.D. 62) explains that according to the Rambam it is an issur d'oraysa but since ultimately included in the לאו שבכללות of בשר בשדה טרפה (as the gemara says 73b), there is no malkus. The Maharatz Chiyus quotes that the Pri Chadash proves this from the Tosefta that says that a dangling limb is assur for Goyim. Generally speaking we don't find Rabbinic prohibitions on Goyim, therefore the fact that it is considered אבר מן החי even for a Goy implies that it is an issur d'oraysa.

Chulin 73a - Long Handles on Keilim

2011-09-06T09:08:00.000-07:00

The gemara explains the position of R. Meir who holds that vessels with long handles only require tevila up until the point that the handle serves a function but not beyond that point. The rationale is that since it will be cut off, we view it as if it were already cut off and therefore isn't part of the vessel. The Rosh and Rash in Keilim develop from this mishna an interesting principle. Normally, areas that qualify as beis ha'starim on a person we don't require water to actually touch so long as there is no chatzitza rendering the area fit for water to enter. However, if that were the halacha by keilim as well it wouldn't make sense to simply be tovel the vessel until the point where the handle will be cut, because the point at which it is cut is not fit for bi'as mayim - to touch the water. Clearly, the halacha of beis has'tarim of vessels is that it doesn't even need to be fit for water to touch. However, the Mishna Acrhona (one of the commentaries in taharos) disagrees. He holds that even by keilim there is a requirement that the beis hastarim be ראוי לביאת מים, yet we don't consider the area that would be exposed when it is cut to be a problem because it is the minority of the vessel and people aren't makpid about the handle being there, therefore it isn't a chatzitzah. In truth, Tosafos (d.h. matbil) also considers the handle prior to being cut off to be a problem of chatzitza at the point that it will be cut and therefore makes the case where water can permeate the handle so that it isn't a chatzitzah. See Mayim Rabim pg. 236.

Chulin 66a - Shechting Grasshoppers

2011-08-29T15:56:00.000-07:00

Rashi writes that the kosher chagavim (grasshoppers) don't need shechita because they are mentioned in the pasuk after fish which don't need shechita. The Rashba (chulin 27a) when the gemara talks about fish not requiring shechita explains that the default is that nothing requires shechita unless the Torah says it does. The only reason that the gemara 27a searches for a source that fish don't require shechita is because of the pasuk of הצאן ובקר ישחט להם אם את כל דגי הים יאסף להם, which implies that fish require some positive act of "asifa" in place of shechita. The gemara concludes that asifa- gathering is actually to the exclusion of shechita. In short, Rashi and the Rashba seem to argue whether we need a source that grasshoppers don't require shechita or whether without any source the default is that no shechita is required.

The language of the gemara באסיפה בעלמא סגי להו in the context of fish, is somewhat ambiguous. Do fish require a positive act of "asifa" which would demand that they be gathered from the sea by a person while they are still alive, or is it just a way of saying that they don't require any act and can be eaten even when found dead? The Kesef Mishna (Hil. Shechita 1:3) cites the opinion of Rav Sadya Gaon who says that fish require "asifa" and if they are found dead they are forbidden to be eaten (this would be similar to nechira prior to the requirement of shechita, which required the animal to be killed but would not permit a neveila). Rav Hai Gaon disagrees and says they can even be eaten when found dead. The Kesef Mishna understands that the Rambam holds like Rav Hai Gaon, not Rav Sadya Gaon, but in truth the language of the Rambam is very cryptic. The Rambam begins by implying that fish require a positive act of "asifa", but in the end says that even if they die in the water they can be eaten.

רמב"ם - דגים וחגבים אינן צריכין שחיטה אלא אסיפתן היא המתרת אותן, הרי הוא אומר הצאן ובקר ישחט להם ומצא להם אם את כל דגי הים יאסף להם ומצא להם, אסיפת דגים כשחיטת בקר וצאן, ובחגבים נאמר אוסף החסיל, באסיפה לבדה. לפיכך אם מתו מאליהן בתוך המים מותרין, ומותר לאכלן חיים

The Rambam doesn't say that fish and grasshoppers don't have a "matir", rather he says that the gathering of them is the matir in place of shechita. This would imply that they would need to be gathered from the sea while still alive, yet the Rambam concludes "therefore if they die by themselves in the water, they are permitted". Aside from the first statement seemingly contradicting the second, the Rambam connects them using the term "therefore"! Although the kesef mishna tries to explain that once shechita isn't necessary, there is no longer any method demanded to kill the fish, thereby permitting even fish that are found dead; if this were the Rambam's intention his language should have been that there is no matir necessary for fish and grasshoppers?

Chulin 61a - All Birds That are דורס Aren't Kosher

2011-08-25T16:48:00.000-07:00

The Mishna has a rule that birds which are do'reis aren't kosher (What does it mean to be do'reis? Rashi explains that it lifts it's prey with it's nails, Tosafos argues that even a chicken does that [rashash says he never saw a chicken do that], and therefore explains that it begins to eat prior to the prey being fully killed.

Tosafos wonders where this rule comes from. There are two possibilities. Either Chazal were zoologists and spent time searching all birds which are do'reis and found that every bird that is do'reis is tamei. It is doubtful that they would have invested so much time into doing the research to determine that there is no kosher bird at all that is do'reis. Another possibility is that they weren't disclosing a fact, rather a halacha that they had from Moshe - הלכה למשה מסיני, that any bird which is do'reis isn't kosher. The problem with the approach of being a halacha l'moshe mi'sinai is that it makes the pasuk of פרס or עזניה superfluous since one of the two is do'reis and therefore not kosher due to the halacha l'moshe misinai. See Maharatz Chiyus who discusses the possibility of something being a halacha l'moshe mi'sinai and supported by a pasuk as an אסמכת בעלמא. Tosafos concludes that it is not a halacha but rather a tradition from Noach who did all the research when he was gathering the birds for the teiva.

The Maharatz Chiyus raises and interesting point. Although we don't generally learn things from before matan torah, natural facts can be learned from before matan torah. Therefore, if we had a tradition from Noach that all do'reis birds are tamei, we would be able to use that as a source making any passuk unnecessary. Just as Tosafos assumes that if we had a halacha l'moshe misinai testifying that all do'reis birds are tamei, it would make the pasuk of peres or azniya extra, so too when we have a tradition from Noach to that fact, it should make the pasuk of peres or azniya extra?

Chulin 59a - Checking Simanim before eating

2011-08-22T07:49:00.000-07:00

The mishna teaches what the qualifications are for a kosher animal, bird, fish and chagav. The Rambam in sefer hamitzvos (149-152) counts each of them as a separate positive mitzvah. Although the Ramban in his comments on the mitzvos doesn't write anything, in the sherashim of sefer hamitzvos (shoresh 6) he articulates his opinion that none of these deserve to be counted as a מצות עשה. The rationale of the Ramban is quite logical. There is no obligation to eat these items at all, and therefore the mitzvah to check the simanim is essentially teaching what is allowed and not allowed to be eaten, without any command. The Ramban does consider the positive mitzvah to be an additional violation for one who would eat a non-kosher animal in which these simanim are absent, but does not consider it a mitzvas aseh to actually check the simanim. The Ramban and Behag (quoted by ramban) seem to differ whether the eating of a non-kosher animal should even be counted as a separate aseh, but they both agree that the checking for simanim isn't worthy of being counted as an aseh.

By looking more carefully at the language of the Rambam in sefer hamitzvos (149) we get a better appreciation as to how the Rambam considers these to be positive mitzvos. The Rambam writes

והענין במצוה זו מה שזכרתי לך, והוא שאנו מצווין לבדוק אלו הסימנים בכל בהמה וחיה ואז מותר לאכלן, והדין הזה הוא המצוה

The Rambam seems to understand that the nature of this mitzvah is not an obligation to check the simanim. Rather, the Rambam seems to hold that the very nature of the din which distinguished between kosher and non-kosher, is worthy of counting as an independent mitzvah. This doesn't mean that by checking for simanim one fulfills a mitzvah aseh, but rather the existence of dinim that are necessary to abide by in order to achieve a desired result, qualifies as a mitzvah. A similar logic would have to be applied to explain why the Rambam counts shechita (146) as a mitzvas aseh - although there is no obligation to eat meat, the dinim of shechita that one must abide by to render the animal kosher, qualifies as a mitzvas aseh. The mitzvah of writing a gett would be similar, not an obligation, rather a set of dinim that one must abide by if they want to achieve a particular result. However, the Megilas Esther and Kin'as Sofrim (two classic commentaries on sefer hamitzvos - shoresh 6) both seem to take the approach that the act of checking according to the Rambam is a fulfillment of a positive mitzvah. The Kinas Sofrim explains that if one were to eat an animal without determining that it is kosher and only after consumption realizing that it was indeed kosher, they would be in violation of this mitzvah aseh. The same should be true if one were to eat in a restaurant without verifying that it is kosher and only afterward finding out that it was indeed kosher - the laxity in failing to examine prior to eating is a violation of the mitzvas aseh. According to this approach, the failure to pre-examine the kashrus status prior to consumption is very different than other issurim. If one were lax about other prohibitions and not pay close attention to whether it is actually permitted, and then find out it was permitted, it would fall under the category of מכוין לאכול בשר חזיר ועלה בידו בשר טלה, which requires teshuva but is not a violation. However, according to the Rambam even the laxity in determining the kashrus status of an item would be a specific violation of a mitzvas aseh. The statement of chazal that one needs to do teshuva when they try to eat pork and end up eating kosher meat, is actually a strong question to undermine the kin'as sofrim's approach to the Rambam. Why would chazal just say that you need teshuva for the intent of the aveira, you should need teshuva for violating the aseh and not inspecting the food before consumption? It therefore seems to me that the Rambam considers even a din of inspecting to be counted as a mitzvah even though there is no obligation to do so.

As an aside, the language of the Rambam at the beginning of ma'achalos ha'asuros contradicts his language in sefer ha'mitzvos. In the mishne torah the rambam uses the term לידע, implying that the nature of the mitzvah is to learn and be knowledgeable to be able to discern between kosher and treif, whereas in sefer hamitzvos he uses the term לבדוק implying that the nature of the mitzvah is to actually examine?

Chulin 54b - Defining the word "רשאי'

2011-08-18T04:35:00.000-07:00

The Node B'Yehuda has a famous teshuva where he explains why the halacha requiring one to greet their rebbi on the 3 regalim (pesach, shavuos and succos) isn't codified in Shulchan Aruch. The Nodeh B'Yehuda explains based on the gemara in kiddushin 33b that one is not allowed to stand up for their rebbi more than twice a day so that the honor being shown to a rebbi shouldn't exceed the honor being shown to Hashem through the acceptance of Him as king in the reading of Shema which is only twice a day. Similarly, when there was a beis hamikdash, there couldn't be a halacha requiring one to visit their rebbi more than 3 times a year (even though it is technically appropriate every shabbos and rosh chodesh - as the gemara cites לא חודש היום ולא שבת היום). Now that there is no beis hamikdash and there is no mitzvah to be oleh regel on yom tovim, the halacha of visiting a rebbi is completely inapplicable for the same reason so that the honor shown to a rebbi shouldn't exceed the honor shown to Hashem.

The Node B'yehuda certainly assumes that the definition of the term רשאי in the context of אין אדם רשאי לעמוד בפני רבו אלא שחרית וערבית שלא יהא כבודו מרובה משל שמים, has to mean - NOT PERMITTED, as it would be simply translated. However, Tosafos says that in hour gemara when it cites the phrase אין בעלי אומניות רשאין לעמוד מפני ת"ח בשעה שעסוקין במלאכתם, can even be speaking about when they are doing their own work so there is no issur to stand, but the term רשאי means obligated. Meaning, workers aren't obligated to lose money and stand for Talmidei chachamim while they are busy with their own work. Tosafos says that the term in the gemara kiddushin can be translated the same way, one is not obligated to stand for a rebbi more than twice a day, but would certainly be allowed to. But, in truth this may work even better for the Nodeh B'yehuda because there is no halacha that nowadays one is not allowed to visit their rebbi on regel, just that it can't be an obligation. It would work well since it is based on the source of one not being "obligated" to stand up for their rebbi more than twice a day - they are allowed just not obligated.

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On another note, the gemara concludes that we can't prove from our gemara that honor shown to those going to do a mitzvah should supersede the honor shown to talmidei chachamim, because it could be that the requirement to stand for those who bring bikurim is simply שלא תהא נמצא מכשילן לעתיד לבא - meaning that they must be shown extra honor in order to encourage them to invest the energy and time to come again. From here we see that there is an obligation on everyone not only to do mitzvos, and not only to abstain from preventing the doing of mitzvos, but to actively do things that encourage others to do mitzvos.

Chulin 48b - Treifos are halacha l'moshe m'sinai

2011-08-12T06:20:00.001-07:00

A few weeks ago I was in Sha'arei Tzedek with R. Moishele Weissberg (who i am training by to become a mohel) and an older guy walked over dressed in shorts and sandals (not looking very well put together). He said that he had a question, but not about milah, rather about a chicken (Moishele spent over 25 years as a shochet). The question was that he has a chicken who is missing a leg at the knee and he wants to know if the chicken is kosher, because he wants to keep it alive and eat the eggs. Moishele didn't know the answer, so he called another shochet who said that it depends on the tzomet ha'gidin, whether or not they are in tact.

I didn't fully grasp the importance of the tzomet ha'gidin at that point. However, the gemara says that in treifos one cannot compare one thing to another based on the assumption that the rules should always be consistent and logical. The gemara says

אין אומרין בטריפות זו דומה לזו, שהרי חותכה מכאן ומתה חותכה מכאן וחיה

Rashi (unlike tosafos in baba basra 130b who says this is referring to a hole in the spleen) says that so long as no bones are broken, if the meat of the chicken is cut off the bones, if it is above the tzomes ha'gidin it is kasher, but on the tzomes ha'gidin it is a treifa. This proves that the laws of treifos aren't intuitive because it could be a treifa when less is missing, and kasher when more is missing.

Rashi at the beginning of the perek 42a also made this point by saying that there is no rationale when it comes to treifos because it is all a halacha l'moshe mi'sinai. It is for this reason that the chazon ish explains that the ability to keep a treifa alive would not change it's status as being a treifa since the list of 18 treifos are halacha l'moshe misinai.

Chulin 46b - 47a - Sircha/Hole in Lungs

2011-08-10T23:40:00.000-07:00

The gemara discusses the common problem of sirchas (strands that attach lobes of the lung to one another or to the rib cage) being an indication of a treifa. The gemara distinguishes between כסדרן and שלא כסדרן. Simply speaking כסדרן refers to an attachment of the lobes of the lungs that are adjacent to one another, which the gemara says is kosher because היינו רביתייהו, whereas an attachment between lobes that aren't adjacent -שלא כסדרן, renders that animal a treifa.

For background purposes, the lung has 4 lobes on the right side and 3 on the left. The very large lobe on the right and the left is called an אומא, and the upper ones (3 on the right and 2 on the left) are called אונא. Rashi and Tosafos both quote a major machlokes whether a sircha between two adjacent lobes are considered acceptable only in the אוני or even when there is an attachment between the אונא and the אומא. Additionally, there is a lobe in the center of the lung that is referred to as the עינוניתא דוורדא for it's rose like appearance - any sircha between that and another lobe of the lung is considered to be a problem.

Rashi in his explanation of this sugya clearly chooses the former of the two approaches that i mentioned in the previous blog. Rashi writes that the problem with a sircha is that it is indicative of a hole which is then filled up by the forming of a sircha. Rashi continues that even though it successfully covers the hole so that no air can penetrate, we pasken קרום שעלה מחמת מכה בריאה אינו כרום שסופו ליסתר. The last two words of Rashi - שסופו ליסתר, clearly indicate that the problem is that the closure will not hold, implying that if it were to hold such as surgical stitching, it would remove the problem of treifa. Regarding the distinction between כסדרן ושלא כסדרן which the gemara attributes to כסדרן being רביתייהו, rashi explains that adjacent lobes protect one another so that the sircha can strengthen rather than weaken. The entire approach of Rashi clearly implies that any fix that will actually hold is sufficient to remove the concern of treifa, even though the fix only came later and wasn't present from the beginning. Tosafos asks on Rashi, why would כסדרן be kasher, it should be no better than a krum that develops on an injury which doesn't fix the problem. Tosafos suggests that it could be that a sircha which attaches itself to another place (such as an adjacent lobe) has a tendency to strengthen and closes the hole better than a "krum" that is not attached to any other place. This further compliments the approach that a hole that renders that animal a treifa can be fixed, so long as it is strong enough to be maintained. Based on this, the Rashi 43a that we discussed in the previous blog would hold that if it is a permanent fix, the animal is no longer a treifa even if it develops later. But, rashi explains that even when the hole isn't truly plugged up, and is just being blocked by another organ, since it was there from the very beginning, this also allows that animal to be considered kasher and not a treifa.

Tosafos quotes Rabbeinu Chananel who takes the exact opposite approach to explain why a sircha is a problem. Rather than the sircha being an indicative of a preexisting hole, it is an indication that a hole is about to form. Tosafos points out that both the approach of rashi and rabbeinu chananel fail to explain why a hole can be tested by blowing into the lung while in a bucket of water. According to Rabbeinu chananel it will not bubble because the hole has not yet formed, and according to rashi it will not bubble because the sircha is blocking it from bubbling but is prone to fall off and therefore doesn't truly fix the hole.

Chulin 43a - Bloat in Cattle

2011-08-07T04:54:00.000-07:00

This is from wiki:

In cattle, bloating is most often caused by the animal eating young and lush pasture, usually if the pasture has a high proportion of legumes(medicks, clover or lucerne (alfalfa)).^[23] Legumes contain foaming agents which trap air bubbles in the ruminant's rumen and prevent them from belching to relieve the pressure. This causes a build up of pressure in the rumen which manifests as an obvious swelling on the left side. Signs of bloat in cattle are distended left abdomen, stopping of grazing, lethargy, appearing distressed, difficulty in urinating or defecating, rapid breathing and staggering. In mild and moderate cases an antibloating agent will be administered orally or through a stomach tube and the ruminant should be exercised. In severe cases a wide bore trochar and cannula can be inserted into the rumen on the left flank to release the gas and liquid. In emergency cases of frothy bloat, this may not be enough and a 10–20 cm incision may need to be made in the animal’s side and the froth manually removed. Veterinary care is then needed to clean and stitch the wound and administer an antibiotic to the animal.

To treat this problem, there is often an incision made in the keiva of the cow and then stitched up. Is found a very interesting discussion about this issue in the new picture book on chulin by rabbi lach (page 146). The question is whether a hole that renders the animal a treifa can be fixed so that the animal is no longer a treifa. If once a treifa, always a treifa, any animal that undergoes such a surgery, even after it heals is a treifa rendering all it's milk to be non-kosher. The issue is based on an apparent contradiction in Rashi when he explains the gemara which says a "krum" - membrane that grows over a wound in the esophagus doesn't fix the hole and the animal remains a treifa. Rashi at first writes that even if it is thick membrane, it will not last, therefore it is as if the hole remains and the animal is a treifa - אפילו עלתה בו סתימה עבה אינה מתקיימת. According to this rationale, the problem is that the hole cannot fix itself properly, but when the hole is stitched up and heals properly, the animal will no longer be considered a treifa. However, Rashi continues by creating a rule that any holes that render the animal a treifa cannot be fixed even if it heals afterward, unlike a hole in the lung that if closed by the wall of the inside of the animal is kasher, because that seal was there originally. The implication of the second statement of Rashi is that once it is a treifa, it remains a treifa and even if repaired properly remains a treifa. The Pri Megadim (Mishbetzos Zahav - 33:4) understands from rashi that if the closure of a hole isn't present at the time the hole forms, it cannot be fixed by a membrane or healing afterward. The Pri Megadim explains that the fact that the closure or membrane will allow the animal to live, doesn't in anyway change it from being a treifa. The concept of a treifa not living 12 months is to be used as a siman to determine whether a safeik treifa is a treifa. But, when it is known that the animal is a treifa, even if it lives for many years, it remains a treifa. The pri megadim doens't explain how he would read the beginning of Rashi. Perhaps he understands that the statement of rashi - אפילו עלתה בו סתימה עבה אינה מתקיימת, is referring to the beginning of the healing process. Meaning, even if it begins to scab originally, that seal will not remain forever, therefore we give the animal a status of treifa. Once we give the animal a status of treifa, even once the hole fully heals, it no longer loses it's status since that is considered a closure that occurs later. This approach would seemingly invalidate even a hole in the stomach (since rashi asks from the lung and liver, and doesn't answer that this is a special din of the esophagus, it implies that the principle applies to holes in any organ).

Rav Belsky wrote an article available here being matir all milk. He explains that even if the procedure would render the animal a treifa, it would be mutar, and the suggests that one of the procedures doesn't render the animal a treifa based on many different rationales for this: 1. There are 3 linings to the stomach and the piercing of the needle is not at the same point through each lining. 2. Even if this hole could kill the animal, it would have a din misukenes but not treifa and since the hole is made to heal the animal it doesn't even qualify as a misukenes. There is another procedure which stitches the stomach of the animal to it's side. In this type of stitching there is definitely a how made straight through the stomach. Rav Belsky understands that the correct reading of Rashi is the first approach, that any closure which isn't a permanent fix doesn't work, implying that if it is indeed מתקיימת, it works to remove the status of treifa. The reason why rashi had to come up with the alternate explanation - דטרפות לא מהניא להו סתימה דסלקא בהו לאחר זמן is because it isn't obvious that these closures are permanent, but since they are there from the very beginning and remain there, they are considered closures. He then suggests that even if we take the stricter approach, the type of stitching called toggle bolt, would qualify as the hole being fixed immediately and not as something that only occurs later. He therefore concludes that the process done to milk cows qualifies as a סתימה המתקיימת and as a סתימה מעיקרא. He also elaborates to argue with the concept that a treifa cannot be fixed, that it is a rule that is contradicted from the gemara 68b. The gemara on 68b actually uses the term כיון שנטרפה שוב אין לה היתר, but Rav Belsky explains that it doesn't mean to say that every treifa, once it is assur can never be fixed. The gemara on 54 explains that any problem that can be fixed with medicine isn't part of the list of 18 treifos - this clearly implies that treifos can be fixed. Therefore, the gemara on 68b also means to say that the definition of treifa is a problem that can't be fixed. If it is possible to fix the problem, it no longer qualifies as a treifa. Even though the ability to keep an animal that has one of the 18 treifos alive wouldn't remove the status of treifa, the ability to fix the actual problem so that the hole is no longer present, Rav Belsky holds would help to remove the status of treifa.

Chulin 39b - Shlichus for a Goy

2011-08-02T02:35:00.001-07:00

The gemara tells of arabs who gave money to purchase a part of an animal that was to be shechted by a jew and questions whether there is concern that the arabs intent to have his share shechted for avoda zara would invalidate the entire animal. The gemara says that if the arab is strong in the sense that the Jew cannot break away from him, then the animal is assur, but if the Jew is able to break away from him it is mutar. Rashi explains that if the Jew is able to break away from the arab then - אינו נעשה שלוחו על כרחו, the Jew doesn't become an automatic agent of the goy to assur the animal, but if the Jew is is unable to break away, he serves as an agent for the goy to assur the animal. Rashi seems to understand that the concept raised by the gemara of זה מחשב וזה עובד works as shlichus meaning that the shochet serves as the shliach of the owner as if the owner himself were actually shechting for avoda zara. The Maharatz Chiyus raises a question that the concept of "shlichus" between a jew and a goy doesn't exist. The gemara in Baba Metzia 71b derives from a pasuk that there cannot be any shlichus between a Jew and a Goy in either direction. Based on this, how can we apply the concept of shlichus to make the animal assur?

Rashi in Baba Metzia concludes that we do consider their to be shlichus between a Jew and a Goy l'chumra. This helps to explain Rashi in Shabbos 153a. Rashi explains the gemara's question as to how a Jew could give his money to a goy to carry as shabbos is beginning, that it should be assur because the goy is serving as his shaliach. Rashi seems to understand that the concept of amira l'nachri is based on the goy serving as the shaliach of the Jew. The Shulchan Aruch HaRav articulates this point clearly:

הגר"ז בס' רמג ס"א וז"ל אסרו חכמים לומר לנכרי לעשות לנו מלאכה בשבת וכו' שכשהנכרי עושה בשבת הוא עושה בשליחות הישראל ואע"פ שאין אומרים שלוחו של אדם כמותו מה"ת אלא בישראל הנעשה שליח לישראל וכו' אבל הנכרי אינו בתורת שליחות מה"ת, מ"מ מדברי סופרים יש שליחות לנכרי לחומרא עכ"ל

Therefore, it is possible that in our context also, Rashi will hold that m'drabonon we are machmir to consider the Jew a shliach of the goy, whenever the Jew doesn't have the ability to break away from the goy. In truth, Tosafos also writes that the issur on the animal when the Jew can't get away from the goy would only be m'drabonon (but Tosafos seems to say that it is only d'rabonon because there is something lacking in the s'michas da'as). It seems that Rashi would hold that the entire issur on an animal shechted by a Jew when the Non-Jewish owner had intent for avoda zara would work through shelichus and would only be assur m'drabonon. Another possibility is that when money exchanges hands we could consider a goy to be a shliach of the Jew or a Jew to be a shliach of the goy. This is the sevara of the machaneh ephraim in the context of a goy building a ma'akeh for a Jew and allowing a Jew to make a bracha - יד פועל כיד בעל הבית דמי. Therefore, in our case where the Jew accepted money from the goy and cannot break away, even m'doraysa he may be his shaliach.

The Rashash explains the concept of an איניש אלמא who the Jew cannot break away from based on the Rambam in Hilchos Chometz U'matza (4:4) that when the Goy will be able to force the Jew to take responsibility for the chometz, the Jew is obligated to be destroy it before pesach as if he willfully accepted responsibility. Here too, since the goy can force the Jew to maintain the partnership in the animal and prevent the Jew from breaking away, the machshava of the goy qualifies to assur the animal.

Chulin 39a - Pigul: Machshava or Dibur?

2011-08-01T22:46:00.000-07:00

The Rosh (Hilchos sefer Torah 3) quotes Rabbeinu Baruch as holding that pigul can only be violated if it is done with dibur, meaning that one articulates the pigul, but machshava alone doesn't create pigul. The Rambam (Pesulei Hamukdashin 18:1) disagrees and holds that pigul can be violated by the mere thought of chutz l'zmano. In our gemara we are trying to find a case where something would be a violation of pigul by kodshim but not a violation of a machshava of avoda zara by chulin. The gemara says that if machshava of avoda zara wouldn't invalidate the animal by chulin, then what would be a case where one does shechita for avoda zara. Tosafos says that if pigul can b e violated through machshava (Rambam), then we have a simple case where pigul is a problem by kodshim but machshava for avoda zara wouldn't be a problem by chulin - because machshava for avoda zara without dibur wouldn't invalidate the animal, but with dibur it would. Tosafos seems to be uncertain whether pigul requires machshava or dibur.

In Baba Metzia 43b Tosafos seems to assume like the Rosh that pigul needs dibur, whereas the gemara in gittin 53a seems to hold that one does require dibur by comparing pigul to hezek sh'eino nikar, yet distinguishes between hezek sh'eino nikar and pesulim of machshava.

The Rashash on 39b writes that if we require dibur for pigul, then we should also require dibur when one shechts chulin for avoda zara, otherwise the kal v'chomer of R. Yossi doesn't make sense because there would be a pircha that pigul is only violated with dibur. The Rashash points out that the gemara seems to understand that shechita for avoda zara wouldn't require dibur because we apply the concept of הוכיח סופו על תחילתו, meaning that machshava afterward reflects on the shechita. This would only make sense if it is a p'sul of machshava but doesn't make sense if it is a p'sul of dibur. Therefore, it should follow that pigul can be violated even with machshava.

To be explain the opinion of the Rosh, it seems that the concept of dibur by pigul isn't a din of dibur similar to kriash shema and kiddush, rather it is a din to have a machshava with a gemiras da'as that is only achieved through dibur. The function of the dibur is to be me'galeh that there was a clear machshava. Therefore, even according to the Rosh that dibur is necessary, the concept of הוכיח סופו על תחילתו would still make sense since the core p'sul is a p'sul of machshava, and the dibur is only a verification of that machshava. A similar sevara can be used to explain the function of dibur in sefiras ha'omer and when making a neder.

Chulin 37b - Eating From What a Chacham Was Matir

2011-08-01T05:29:00.000-07:00

The gemara says that one of the chumros that Yechezkel kept was that he never ate from an animal that a chacham was matir. This is paskened in the Rama 116:7 that an animal that a chacham was matir based on sevara but the din is not explicit that it is permitted, a ba'al nefesh should be machmir not to eat it. The difficulty with the Rama is that the gemara is trying to find chumros that were kept by Yechezkel but weren't necessary to be kept by others. The gemara even proves from the fact that Yechezkel didn't eat an animal that was a misukenes, that it must be permitted for everyone else. It is possible that the Rama is encouraging anyone who wants to be a ba'al nefesh to keep the chumros of Yechezkel, but it still seems strange that a ba'al nefesh should have to keep the chumros of Yechezkel.

The Pischei Teshuva (10) quotes a chumra of not relying on bitul in 60 times as much, and asks that the Rama clearly says that such a chumra can only exist if a chacham is matir something with sevara, but wouldn't apply to an explicit din. The Pischei Teshuva explains that even bitul in 60x is not required that a ba'al nefesh be machmir but if he wants to it would be considered a mitzvah. He then quotes in the name of the Toras Ha'asham that one who wants to be machmir on something that we don't find the amora'im were machmir about is considered an apikores and his loss outweighs his gain.

According to the Rama it seems clear that even Yechezkel wasn't machmir about a din that is explicit. The Rama seems to understand that the case where Yechezkel was machmir is when a chacham had to be meikel based on sevara, and therefore suggests that every ba'al nefesh do the same. However, Rashi writes that Yechezkel didn't eat from any animal that was ever brought as a question to a chacham. This implies that even if the din was explicit, since the chacham had to be asked about it, he wouldn't eat from it. It seems to me that according to Rashi the only room for such a chumra is a form of ma'aras ayin. Since people saw that a shayla was asked on this animal, Yechezkel didn't want to give even the slightest impression that he was eating from something that wasn't 100% kosher. But it doesn't seem that there should be an inherent advantage to abstain from something that a chacham who is fit to pasken, was matir. The Torah gave the authority to the chachamim to pasken even using their shikul hada'as.

Chulin 33a - Chatzi shiur for a goy

2011-07-27T21:55:00.000-07:00

The gemara raises the concept of מי איכא מידי דלישראל שרי ולעכו"ם אסור, meaning that goyim can't be frummer than jew - if it's assur for a goy, it has to be assur for a jew. Tosafos raises various questions and exceptions to this rule. Tosafos writes that anything which is a mitzvah for a Jew can be an issur for a goy, such as shabbos and studying Torah are assur for a goy. The rationale is that since the entire concept of it being assur to a goy stems from the fact that it is a mitzvah unique to Jews, it doesn't break the rule of מי איכא מידי וכו. At the end of Tosafos, they write:

אע"ג דעובד כוכבים אסור במשהו בשר וגידים ועצם, וישראל לא מיתסר אלא בכזית בשר, הא אמר ריו"ח דחצי שיעור אסור מה"ת

Tosafos seems to imply that there is no concept of a shiur when it comes to a goy, so whether they eat more than a kezayis or less than a kezayis, it is all the same issur (even though by Jews it is more chamur to eat a kezayis, but since there is an issur of chatzi shiur it doesn't violate the מי איכא מידי concept). This seems to support the idea that shiurim are a halacha l'moshe misinai that was said to Jews and not to goyim. However, the Pri Megadin understands from Tosafos that by goyim even the gidim and bones combine with the meat to create a shiur of a kezayis, but the requirement of a kezayis to violate applies to a goy as well. The language of Tosafos where he contrasts that a Jew is forbidden to eat a kezayis of meat, implies that by a goy the bones combine to create a kezayis. However, the Rambam (9:10) writes explicietly that shiurim were only given to Jews, but Goyim are in violation for even eating the smallest amount of eiver min ha'chai.

Chulin 30b - P'sul of Chalada

2011-07-25T07:10:00.000-07:00

The gemara Chulin 20b says that the p'sul of חלדה is similar to a weasel that lives in the holes of houses which is often hidden. There seems to be a machlokes in the gemara there whether it is necessary for the beis ha'shechita to be opened so that the part of the knife that is cutting is visible, or whether it is sufficient for part of the knife to be visible as it is cutting (see rashi d.h. הא מיגליא). Nevertheless, there is a din that the knife cannot be hidden underneath something at the time of the shechita. The gemara asks a series of questions according to Rav who says that even if the knife is hidden underneath the skin of the animal it is a problem, what is the din if it is under a cloth, or under the tangled wool. Rashi explains that even if the skin of the animal creates a problem, that is because it is at least part of the animal, but a foreign object such as a cloth may not be a problem. According to Rashi it isn't clear what the question would be regarding the tangled wool - shouldn't that be exactly like the skin of the animal? the Ran explains that the tangled wool isn't part of the animal, therefore even if a cloth would be a problem, the tangled wool would be less connected to the animal and may not be a problem. However, the Rosh seems to understand that the tangled wool is part of the animal that is going to be sheared - the question is that if skin is a problem, maybe the tangled wool is not a problem, and if the tangled wool is also a problem, the cloth which is a completely foreign object may not be a problem. Either way, the sevara of the Rosh, Ran and Rashi is that the more foreign the object the less likely it is to be a problem of chalada. The Ran and Rosh also seem to agree that even according to the maskana of the gemara leaving with a תיקו that the cloth and wool are indeed a problem, it is only because they are attached or tied onto the animal. However, a cloth that is draped over the animal isn't a problem of chalada.

The Rambam (3:10) concludes from the gemara that even if one spreads a cloth over the knife and the animals neck it is considered chalada - הואיל ואין הסכין גלויה הרי זו ספק נבלה. The Rambam seems to hold that chalada is a din that during the act of shechita the knife must be visible so that anything blocking the knife, even if not attached to the animal could constitute a problem of chalada.

The Mishna L'melech references Rashi in Bechoros 24b. The mishna that says when one is shechting a b'chor they are allowed to detach hair to make a place for the knife and it isn't considered a violation of shearing a b'chor. Rashi explains that the reason it is necessary to make a space for the knife is to avoid chalada. Tosafos asks on Rashi that it can't be for a halachic reason, rather a practical one, because the gemara leaves with a תיקו whether tangled hair creates a problem of chalada - if Rashi is correct that the mishna requires cutting the hair to avoid chalada, the gemara should have proven from the mishna in bechoros that it is a problem. Perhaps Rashi would say that the proof from the mishna isn't muchrach since the peshat could be like tosafos that it was cleared for practical reasons. However, since we pasken that we have to be machmir about chalada by tangled hair due to the teiku that the gemara leaves with, rashi explains the mishna by bechor that one would actually be required to cut the hair to avoid chalada.

Chulin 24b - נשיאת כפים

2011-07-18T18:46:00.000-07:00

The gemara says that a kohein can only go up to du'chan when he is old enough to have a beard. Tosafos asks from the gemara in megila which implies that as soon has one is no longer a katan he can du'chan, and from a gemara in succah which implies that even a katan can duchan. Tosafos concludes that there are 3 distinctions. When he is only enough to have a beard he can duchan alone even b'kvius. When he has 2 sa'aros and is no longer a katan he can du'chan alone but not b'kvius. But as a katan he cannot duchan alone. These 3 categories are paskened in Shulchan Aruch 128:34.

It isn't clear whether a katan can du'chan with others even b'kvius. The Biur Halacha cites the O'las Tamid that so long as he is duchaning with other kohanim, a katan can even do so b'kvius, and deduces this from the language of the Shulchan Aruch. The Biur Halacha also writes that in the absence of another kohein, one can appoint a person who is a gadol but isn't old enough to have a beard, even as the established kohein. The rationale would be that technically once he is a gadol he is old enough to du'chan, just that we don't allow him to do it b'kvius due to kavod tzibur, so when there is no other kohein we assume that the tzibur is mochel.

It would seem that a katan is not able to du'chan even m'doraysa just like avoda where the gemara learns out from pesukim that a katan is pasul for avodah. If this is true it would make sense why even if the tzibur is mochel, it would not help to have a katan duchan alone. The only purpose of a katan duchaning would be chinuch as the Shulchan Aruch seems to say. However, Rashi in Megila 24a which is quoted in M.B. 122 writes that the reason a katan can't duchan alone is due to kavod hatzibur. This implies that m'doraysa even a katan can duchan. Therefore it is hard to understand why the olas tamid is only matir a gadol who doesn't have a beard to duchan in the absence of another kohein since we assume the tzibur is mochel, but wouldn't allow a katan to duchan. Since both one who is not ממלא זקנו and a kattan are only not allowed to duchan due to kavod tzibur, we should assume that the tzibbur is mochel when there is no one else?

Perhaps the peshat is that a kattan's ducaning is invalid m'doraysa just like he is pasul for avoda. However, for the purpose of being mechaneich him we should allow him to du'chan as we are mechaneich children for everything. Rashi just means to say that for the kavod tzibur we aren't mechaneich children to duchan. But ultimately, even if a katan would duchan, it would not count. Therefore, the mechila of the tzibbur only helps for a gadol who isn't ממלא זקנו but doesn't help for a katan.

Tosafos (here and more so in succah 42a) implies that ta'aniyos are considered k'vius. Therefore it should come out that one who is not ממלא זקנו cannot duchan alone on taniyos and on yom kippur. The Biur Halacha doesn't understand why the poskim don't mention this.

Chulin 22b - Excluding a safeik

2011-07-16T18:31:00.000-07:00

Apologies for not blogging for almost 2 weeks. I am in Jerusalem training to be a mohel by Moishele Weissberg and have been very busy.

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The gemara says that there in the development of birds there is a stage where the feathers begin begin to get yellow but aren't yet golden which is excluded by the pasuk because it is too old to qualify as bnei yona, but too young to qualify as torim. The gemara asks whether we consider the birds at that stage to have a separate status and would therefore not qualify as being part of either group, or whether it is a safeik so it cannot be sacrificed as torim because it may be too young, and cannnot be sacrificed as b'nei yona because it may be too old. According to this second approach that it is actually one or the other, just that we have no way to determine, Tosafos points out that if the kohein would sacrifice both, it would certainly be effective to fulfill the persons neder (although the other would be a violation of chulin b'azara). The gemara responds that this second option is not possible because if it is a safeik, "would we need a pasuk to exclude a safeik!" The Turei Even in Chagiga points out that it would seem that this is a proof to the concept that safeik d'oraysa is l'kula on a Torah level, because if the Torah would demand being machmir for a safeik, it would make sense that we would need a pasuk to exclude the safeik. However, this proof can be easily pushed off based on the interpretation of what the gemara means to say that we don't need a pasuk to exclude a safeik. Tosafos explains that in our gemara, the explanation could simply be that it wouldn't make sense that the Torah would exclude it mi'safeik. Meaning, that it is entirely possible that we would need a pasuk to exclude a safeik case and say that it is definitely not included, but here the gemara is suggesting that even after it is excluded by the pasuk it remains a safeik. Therefore, the gemara responds that we never find that a pasuk would exclude something and have it remain a safeik even after being excluded.

Tosafos points out that this approach although it would work in our sugya, wouldn't work in various other places where the gemara uses the same phrase. Therefore, Tosafos suggests that there are different types of sfei'kos. When the safeik is based on the metzius of the object, such as a tumtum where we don't know if he is male or female, but each one is different, the pasuk could exclude a safeik. However, when the safeik is a safeik in din such as an androginus where they are all the same, just that we don't know what the din is on such a person, the pasuk wouldn't exlcude a safeik. The rationale for this distinction is that the pasuk may come and tell me what to do in a situation that I can't clarify the facts, but when there is a safeik in din, the Torah wouldn't ever deal with that as a safeik since the Torah doesn't have a safeik in din - קמי שמיא גליא אם הם קטנים או גדולים וכו הלכך לא אתא גרא למעוטי מטעם שהם ספק שאינו ספקא קמי שמיא

According to both of these approaches, there would be no proof at all to the concept of safeik d'oraysa because the gemara is not saying that we don't need a pasuk to exclude a safeik d'oraysa, Rather, the gemara is saying that although we may need a pasuk to exclude a safeik d'oraysa, that cannot be what the Torah is doing. However, Rashi seems to use the language of Tosafos - מי איכא ספקא קמי קודשא בריך הוא, but ends with a strange phrase - וכיון דלא פשיטא לן לא הא ולא הא, מהיכא תיסק אדעתין לאכשורינהו. This seems to indicate that since the Torah isn't dealing with the safeik and isn't including them into either category, we are forced to exclude them from both categories mi'safeik. This would seem to imply the opposite of the Turei Even's suggestion and that since the Torah doesn't include them, we are forced to exclude them mi'safeik, which would indicate ספק דאורייתא לחומרא.

Chulin 11b - Relying on Rov for Treifa

2011-07-06T15:31:00.000-07:00

The gemara goes through a lengthy discussion to prove that we rely on rov (majority), ultimately trying to prove this from shechita itself where we aren't concerned that there was a hole in the esophagus on the exact spot that the shechting took place. The gemara rejects this proof (and the other proofs) by suggesting that wherever possible we don't rely on rov, but when there is no choice we do rely on it. It then proves this from Rebbi Meir who would be concerned even for a minority, so how was he able to eat any meat - clearly when impossible he relied on rov and wasn't concerned for the minority, we too rely on rov when there is no alternative. According to the simple conclusion of the gemara it should be necessary to examine every animal for all 18 possible treifos, since wherever possible we cannot rely on rov. However, Rashi twists the gemara at the very end to have an opposite conclusion. Since following the sources suggested in the gemara for relying on rov we would not be able to rely on rov when it is possible to check, rashi says that it must be that the source for relying on rov is a הלכה למשה מסיני (or from the simple reading of the pasuk - אחרי רבים להטות without exception), and would apply under all circumstances. Therefore, even when it is possible to check, one would not need to check. Although the simple reading of the gemara doesn't yield this conclusion, it seems that the practice of eating meat without checking for all treifos led rashi to interpret the gemara differently and say that one would never need to check for treifos (except for the lungs where they are very common).

Tosafos holds that Rebbi Meir's opinion of being concerned for the minority is only a stringency of the Rabbonon. On a Torah level even R. Meir would follow majority, just that m'drabonon he is concerned for the minority (there is a Mordechai who argues on this Tosafos). According to this approach, Tosafos explains that we are proving from R. Meir that since following the minority is only d'rabonon, they were only go'zer when possible, therefore the Rabbonon who hold that we don't follow majority when possible to check, would also agree that since it is only a chumra m'drabonon, when checking isn't possible we rely on the Rov. According to this approach, on a Torah level one can rely on the Rov even when possible to check, and the requirement to check would only be rabbinic. Therefore, the gemara cannot conclude as Rashi suggests that we have a halacha l'moshe misinai allowing us to rely on rov even when possible to check, because the entire obligation to check when possible is rabbinic. Therefore, according to Tosafos the conclusion of the gemara should be that m'drabonon one is responsible to check after all 18 treifos and not rely on the majority.

Chulin 10b - Eid Echad Ne'eman B'issurin

2011-07-05T16:09:00.000-07:00

Rashi says that the source for eid echad being trusted for issurim is the pasuk that speaks of an individual shechting a korban, and all the kohanim eating from the shechita. Since we don't find that the pasuk requires there to be witnesses watching the shechita, we see that the shochet himself who is the eid echad is believed. Tosafos in Gittin 2b writes that the source of an eid echad being believed is the pasuk of וספרה לה by a woman who is a zava - she checks herself and her husband trusts her.

Rashi in Yevamos 88a writes that if an individual says that he knows that a piece of meat is שומן and not חלב he is trusted - דאי לאו הכי, אין לך אדם אוכל משל חברו, ואיןלך אדם סומך על בני ביתו. If we didn't allow the concept of eid echad, no person would be able to eat in their own home. This Rashi is usually quoted to be arguing on Tosafos and holding that the source of eid echad is merely a sevara, since otherwise it would be impossible to function normally. However, in light of Rashi in chulin who also cites a pasuk in the context of shechita, it seems that rashi in Yevamos isn't claiming to cite a source, rather proving that it must be true that we rely on an eid echad.

There is a very interesting Hagahos Ashri (Rosh 14) who writes that an eid echad isn't believed when there is a chezkas issur, but this is only if he is the class of people who are אנשים ריקים ופוחזים. Meaning, the same level of witnesses who the Torah believes if they are two, which includes even empty people who aren't at all learned, are not believed as individuals when there is a chezkas issur. But one who is kasher is believed even against a chazaka. According to the hagahos ashri, in a situation of chezkas issur, there are two classes of Jews, the lower of which isn't trusted unless they testify as a group of 2 witnesses.

Chulin 9a - Talmid Chacham Must be an expert in practical matters

2011-07-04T14:50:00.000-07:00

R. Yehuda says in the name of Rav that a T.C. is obligated to learn 3 things, writing, shechita and milah. Rashi explains that writing simply means that he must be able to sign his name for an eidus. Shechita means that he must know how to maneuver his hand to shecht properly and not just know the halachos (and the same for tying the knot of the tefillin). The Maharsha explains that a person has an obligation to learn and know the entire Torah, so Rashi is trying to emphasize the practical aspect of it - knowing the halachos of shechita isn't sufficient, rather one must be able to be מאמן ידו and do the shechita.

R. Chanina Bar Shalmei adds the knot of the tefillin, birchas chasanim and tzitzis. The gemara asks why the first opinion doesn't list those three and says - הני שכיחן. Rashi explains that since tefillin, birchas chasanim and tzitzis are common, everyone will automatically become an expert in them by osmosis without having to invest effort into learning how to do them. Rabbeinu Gershom offers a slightly different approach - since they are so common it is easy to find others who can do them. According to Rabbeinu Gershom, we have a justification nowadays for why we aren't obligated to become an expert in any of the 6 items. Since it is common to find people who are able to do these things (even the first 3), it is no longer necessary to make such an effort to be able to do them.

Tosafos seems to understand the gemara's comment of הני שכיחן like Rabbeinu Gershom. Tosafos equates this with what the gemara says that tefillin in the house of bar chavu are משכח שכיחי. Tosafos understands from here that since there are experts around who can do it, it is not essential that everyone else learn how to do it. The implication is that not everyone will know how to tie the knot of tefillin, but when needed one will be able to find someone to do it. From this Tosafos proves that the knot of the tefillin doesn't need to be retied every day as suggested by Rabbeinu Eliyahu, rather the requirement of וקשרתם just means that we must tighten it on our heads as Rabbeinu Tam explains. From the understanding of Rabbeinu Tam that the definition of וקשרתם is to tighten the strap around the head, it is imperative that it be tight and not loose since that is the definition of the mitzvah.

To respond to the proof of Tosafos, Rabbeinu Eliyahu may interpret the gemara of הני שכיחן like Rashi, which would mean that everyone will automatically become an expert since it is necessary to do every single day. According to Rabbeinu Eliyahu one wouldn't need to learn to be an expert in something that is routine and he would be doing every single day from the time he is 13.

Chulin 5a - Mumar to be Mechalel Shabbos and Non-religious Nowadays

2011-06-30T15:29:00.000-07:00

The gemara says that we don't accept a korban from a mumar for avoda zara or a mumar who violates shabbos publicly, but we do accept from a mumar who violates another aveira. From this the poskim derive that one who violates shabbos publicly has a reduced status in halacha, and for many things is considered like a goy. His shechita is passul, he can't be counted as a minyan, one cannot cook for him on yom tov.... Rashi explains:

דהעובד עבודת כוכבים כופר בהקב"ה, והמחלל שבת כופר במעשיו ומעיד שקר שלא שבת הקב"ה במעשה בראשית

Rashi understands that the violation of shabbos is more fundamental than mila, kashrus and other issurim in the Torah because it is a denial of G-d creating the world. However, Rashi doesn't explain why this is only true when one publicly violates the shabbos, but is not true when one privately violates the shabbos.

R. Moshe (Igros Moshe o.c. 1:33) explains the distinction and with this explains why many people nowadays wouldn't have this status. When one violates shabbos privately we consider this to be לתאבון, but when one violates shabbos publictly he is doing a very open act of rejecting Hashem as the creator who rested on shabbos. Since we aren't able to know what he is thinking, we have to look at his actions to make that determination. A public violation of shabbos indicates a rejection of the creator. Therefore, this distinction only applies when one recognizes the seriousness of shabbos and what it represents, yet makes a conscious decision to violate it publicly. But, when one has no appreciation of shabbos at all, their violation isn't a denial of Hashem and therefore it is tantamount to a private violation that we attribute to his yetzer horah getting the better of him. The Sridei Eish (R. Yechiel Yacov Weinberg) refers to this teshuva of R. Moshe and writes that he agrees with the logic.

Based on this approach many shabbos violators nowadays would have the status of a regular מומר לתאבון even if they violate shabbos publicly. However, the leniency wouldn't extend to those who grew up religious with an appreciation for shabbos and later chose to reject it.

Most non-religious Jews would have the status of מומר לתאבון, as opposed to מומר להכעיס or מומר לחלל שבת בפרהסיאץ. But, they don't have all the advantages of a mumar l'tai'avon. When the gemara speaks of a מומר לתאבון, it speaks about someone who makes decisions before he does aveiros. When he has nothing to gain and no benefit in violating, he will always decide to keep the mitzvos i.e. purchase kosher food. It is only when it is too expensive, too hard to obtain, or doesn't taste as good that he will decide to eat non-kosher. It is for this reason that when we can ascertain that he has nothing to gain by doing something wrong, he will do it right. But, for the most part, nowadays people who aren't religious, don't make any decisions at all. Meaning, they categorize themselves as "I don't keep kosher" or "I am reformed so I drive on Shabbos". Since they don't make any decisions or make any attempt to do what is right, they wouldn't be trusted to do something properly, even when there would be no gain to do it improperly. Even Rava who says that we don't say כיון דדש בה כהתירה דמי ליה - these people are כהתירא דמי ליה, where we no longer have the assumption of לא שביק התירא ואכיל איסורא.

Chulin 4a - Yotzei V'nichnas

2011-06-29T14:57:00.000-07:00

In Avoda Zara 12a, I mentioned Tosafos who says that the concept behind yotzei v'nichnas being effective is not that a spot check is good enough. Rather, the concept of יוצא ונכנס is that he creates fear on the goy who is constantly concerned that the mashgiach will show up unannounced and catch him red handed - נתפס עליו כגנב. Therefore, it is only effective in a situation where the goy has what to lose if he gets caught, and when there is a real concern that the mashgiach can and will show up an any moment.

The Cheshek Shlomo points out that the gemara in chulin 4a seems to echo this idea. The gemara says that according to Rava that yotzei v'nichnas is effective, why would the braisa speak about ישראל עומד על גביו, rather than speaking about the bigger chiddush of yotzei v'nichnas. The gemara explains - אמר לך יוצא ונכנס נמי כעובד על גביו דמי, meaning that it is the same. However, this doesn't seem to answer the gemara's question - it would still be a bigger chiddush to say that יוצא ונכנס works? The Cheshek Shlomo explains that the braisa is actually saying a big chiddush according to Rava. It is true that yotzei v'nichnas works, but one may think that it works as a spot check to allow us to assume that if now he didn't mess up now, he wouldn't have messed up at other times. By the braisa equating yotzei v'nichnas to ישראל עומד על גביו it is esentially teaching us that יוצא ונכנס works through the same method of someone being there constantly, since it creates a fear of someone walking in at any moment.

With this we can understand why Abaye disagreed with Rava and held that יוצא ונכנס doesn't work for shechita, even though it works everywhere else. The gemara seems to make a very superficial distinction between the case of the wine where the goy is in the store but not supposed to be touching it, and the case of shechita where he is actually touching it. Rashi 3b offers a deeper understanding to that distinction. Rashi explains that the reason shechita is different is that the animal is in his hand and כהרף עין שוהה או דורס - he can instantaneously with the twist of the wrist mess up the entire shechita. Since he can do so within a split second there is no longer the fear of getting caught which undermines the entire concept of יוצא ונכנס.

Chulin 3b - Mumar L'hachis

2011-06-28T14:01:00.000-07:00

Rava says that a mumar l'tei'avon which is someone who will only eat issur when there is no other kosher option is allowed to do shechita, just not allowed to check the knife (since he isn't believed to do things that require very much effort). The clear implication of Rava's statement is that a mumar l'hach'is, meaning one who ignores the kosher option and opts for the non-kosher food, his shechita is invalid even bidi'eved. However, it isn't clear why we invalidate his shechita. Rashi (d.h. chutz) writes - אבל להכעיס אפילו נמצאת סכינו יפה לא, דמועד לנבל בכוונה בידים. Rashi understands that we are concerned that he will intentionally mess up in the shechita and we therefore treat his shechita as a neveila. According to Rashi he is not inherently invalid, we are just concerned for intentionally botching the shechita. It should follow that if someone was watching the mumar l'hach'is carefully and determines that he didn't violate any of the 5 halachos of shechita, it would be valid. However, Tosafos d.h. kasavar, writes that the same source that we use to exclude a goy from shechita, וזבחת, from which we learn you need to be a בר זביחה, we exclude a mumar l'hach'is. Tosafos understands that to qualify as a bar zevicha you need to be someone who believes in the importance of shechita, therefore a goy and a mumar l'hachis who completely disregard the process of shechita are passul. According to Tosafos this is an inherent p'sul and therefore a mashgiach standing over him wouldn't help, just like it wouldn't help for a goy. The Shach (2:16) understands that this is a d'oraysa exclusion, and the product is a neveila d'oraysa. The Rambam has a similar approach to Tosafos that we equate a mumar l'hach'is to a goy, but is somewhat different. According to the Rambam we learn from the pasuk of ואכלת מזבחו to exclude a goy, and include a mumar l'hachis who has status of a goy. According to the Rambam the pasuk which declares the shechita to be treif is in the context of a goy, but we equate a mumar l'hachis based on the rule that a mumar has status of a goy. Whereas according to Tosafos, the pasuk doesn't speak about a goy, rather about one who is not a בר זביחה which incorporates both a goy and mumar equally. The difference between then is whether the equating of a mumar to a goy in this context relies on a general principal that a mumar is like a goy (rambam) or just happens to be that they are both excluded for the same reason which is not believing in the rules of shechita. - see page 15 of the pdf sefer on shechita that i linked to yesterday.

Chulin 2a - Women and Shechita - Eldad Hadani

2011-06-27T16:11:00.001-07:00

One of the opinions that has become a favorite to pick on in Hilchos Shechita is a sefer called Hilchos Eretz Yisroel by Eldad HaDani (see wiki). The first Tosafos in Chulin quotes Sefer E.Y. as the source to forbid women from shechita because דעתן קלות. Tosafos rejects this opinion by proving from the Mishna in Zevachim that woman are allowed to shecht even kodshim, so they can certainly shecht chulin. The Beis Yosef adds that the explanation of Hilchos E.Y. that they are דעתן קלות simply means that they are more prone to fainting when carrying out the gruesome shechita. Although Tosafos opinion is echoed by all the Rishonim, the Rama (1:1) writes that the minhag is for women not to shecht, which he quotes from the Agur. The Beis Yosef challenges whether there can exist a minhag "not to shecht". Although we have never heard or seen a women shechting, that would not have status of minhag - לא ראינו אינה ראיה. The Shach (1:1) disagrees with the Beis Yosef and says that when something is common and prone to happen, we do say לא ראינו is a proof, because if it was possible to happen, odds are that it would have happened. The Pri Megadim says that there are two reasons that we don't allow women to shecht: 1. they are suspect of violating lifnei iver, 2. they are prone to fainting. Therefore he rules that even bidieved one cannot eat from the shechita of a woman unless their knife was examined carefully and they have a chazaka that they can handle the gruesome shechita without fainting. The Aruch Hashulchan adds an interesting point - since there is a concern regarding the knife that it wasn't examined properly, women wouldn't be able to shecht chulin but would be able to shecht kodshim since the gemara says (zevachim 88) that they would take new knives rather than fixing nicks in the knife. This approach would undermine the proof of Tosafos that if they can shecht kodshim, they can certainly shecht chulin. I found that in the sefer of notes on Rav Eliyahuv's shiurim, he cites a possible source for the minhag that women don't shecht from kiddushin 52b. The gemara says וכי אשה בעזרה מנין, Rashi says that a women wouldn't enter the Azara. Tosafos disagrees because we don't find any issur for a woman to enter the azara. One of Tosafos proofs is that women can do shechita which would require them to enter the azara. Nevertheless, Rashi assumes that the minhag was not to let women in the azara, which could have led to a minhag to not allow women to shecht kodshim. Since they weren't shechting kodshim, it could have extended to chulin as well. The proof Tosafos in Kiddushin cites that women could enter the azara since they are allowed to do shechita is difficult in light of the gemara Chulin 2b that talks about shechting from outside the azara with a long knife (although the gemara is only speaking about using a long knife to prevent touching the animal after it is dead, Tosafos explains that since we are talking about tamei meis, we have to be speaking of a knife that is long enough for him to remain outside the azara and shecht inside the azara ) - women could have done the same.

I wrote a sefer of comments on the Chochmas Adam in Hilchos Shechita. If interested please CLICK HERE.

Menachos 99b - Learning at ALL times

2011-06-15T13:46:00.000-07:00

R. Elazar Moshe Horowitz (Pinsk) points out a very interesting paradox in the opinions regarding the mitzvah of limud ha'torah. R. Yishmael is the opinion who did not permit his nephew to study chochmas yevanis because the mitzvah to study Torah is incumbent on a person at ALL times, whereas R. Shimon Bar Yochai (quoted by R. Yochanan) says that one can fulfill their obligation through the reading of shema in the morning and evening. However, in the gemara Brachos 35b, it is R. Yishmael who permits working to compliment Torah study - הנהג בהן מנהג דרך ארץ, whereas R. Shimon Bar Yochai held that if one devotes himself to Torah the his work will be done by others. It comes out that R. Yishmael holds that one must learn ALWAYS, yet allows for one to do work, and R. Shimon Bar Yochai doesn't allow for work yet he holds that the mitzvah to study Torah can be fulfilled simply by reading shema?

Rav E.M. Horowitz suggests that according to R. Yishmael the demand is to learn every moment of the day, therefore one may not study other things. Yet, he allows for one to work since without the ability to earn a living one will not be able to focus on their learning - יפה ת"ת עם דרך ארץ. On the other hand, R. Shimon Bar Yochai held that there is no heter for one to stop learning in order to work, therefore the justification of those tzadikim who throughout history did work must have been based on the assumption that the mitzvah to study Torah is not at all times.

The approach within the opinion of R. Yishmael seems very plausible. The mitzvah to study torah is continuous and applies all day and night, therefore the mitzvah itself must include a dispensation for earning a living since otherwise it would be impossible to manage. However, his approach within the opinion of R. Shimon Bar Yochai is difficult. If indeed R. Shimon holds that the demand to study Torah can be fulfilled with shema, how can he put any restrictions at all on working?

It seems to me that R. Shimon Bar Yochai in Menachos is making a halachic statement regarding the fulfillment of the bare minimum requirement to study Torah. But, in Brachos he isn't making a halachic statement, he is rather recognizing a reality. If the Torah scholars would be mevatel their limud ha'torah for the purpose of earning a living, they may be permitted to do so but would still forfeit tremendous potential of achievements in their learning. R. Shimon wasn't making a halachic statement, rather he was saying that the Torah scholars shouldn't be mevatel their learning since תורה מה תהא עליה, therefore he was confident that to protect the achievements in Torah, G-d would make it so that their work will be done by others.

Menachos 99b - ביטולה זהו קיומה

2011-06-15T11:47:00.001-07:00

There is a well known phrase ביטולה של תורה זהו קיומה which seems to be an adaption and modification of the Talmudic phrase ביטולה של תורה זהו יסודה. The source for the modification is found in Rabbeinu Gershom who translates the term יסודה to mean קיומה. The connotation of the phrase ביטולה זהו קיומה is similar to that of יצא הפסדו בשכרו, meaning that sometimes it is necessary to do something against the Torah which ultimately brings about a greater fulfillment of the Torah. It is of the same genre as עת לעשות להשם הפרו תורתך, where the violation of the Torah is necessary for the greater fulfillment of the Torah. However, it seems to me that by modifying the term יסודה to קיומה, there is a potent message in the connotation that is being diluted by this change of term. Rashi explains that the term יסודה implies that through bitul torah, one can actually receive reward as if he were יושב ומייסדה ועוסק בה. Meaning, we don't simply encourage the temporary violation for the greater good that will come from it, but rather we consider the actual violation to be a constructive building of the foundation of Torah. The gemara learns this out from the fact that Moshe Rabbeinu broke the luchos and Hashem agreed that he made the correct choice. Rashi loosens the definition of ביטולה זהו יסודה to mean that one receives reward as if he was building a foundation for Torah, and derives this from Moshe where we see that Hashem sanctioned his good intentions. But, if we truly interpret that the Bitul Torah can be regarded as an actual constructive building of the Torah, we need to fine tune how exactly the breaking of the luchos would serve as a source for this concept?

The Shita Mi'Kubetzes (and Maharsha) cite the kal v'chomer that Moshe made which led him to break the luchos - מה פסח שאינו אלא מצוה אחת אמרה תורה כל בן נכר לא יאכל בו, כל התורה כולה וכל ישראל מומרים על אחת כמה וכמה. Moshe made a kal v'chomer that if we are willing to be me'vatel the mitzvah of korban pesach to avoid one who is נתנכרו מעשיו לאביו שבשמים and isn't fulfilling other mitzvos, we should certainly be mevatel the entire Torah to prevent the Jews who are mumrim from receiving it. The idea that a בן נכר doesn't bring korban pesach is that the korban pesach represents G-d's protection of the his people (separating them from the Egyptians) - therefore one who is a בן נכר and isn't worthy of this protection, the korban pesach will have the opposite effect. Similarly, giving Torah to the Jews when they are sinning will have the adverse effect that it should. Rather than providing them with zechuyos, it serves as a מקטרג to prosecute against them. Moshe's logic was that Torah which is built on a faulty foundation will not hold, therefore the foundation must be destroyed before the Torah can be built. The breaking of the luchos sends the message that they must do teshuva, so that that destruction is the first step in the construction of the foundation. From this we learn that sometimes the foundation is built by the destruction of the Torah, so that people will learn that the foundation must be improved before it can hold the weight of the Torah. This is the concept of ביטולה זהו יסודה, it is b'geder סותר על מנת לבנות במקומו where the destruction is actually the first step in the process of construction.

Menachos 95a - Travelling of Camps in Midbar

2011-06-13T11:23:00.000-07:00

The Meshech Chochma (Parshas Bamidbar 2:17) explains the pasuk - ונסע אוהל מועד מחנה הלוים בתוך המחנות, כאשר יחנו כן יסעו איש על ידו לדגליהם - to contrast the norm of travelling. Kavod is only applicable when people are in their formal settings. but when they are traveling there is no concept of showing kavod - אין מכבדין בדרכים. It is for this reason that the Torah insists that the arrangement of the shevatim around the mishkan be maintained even when they travel. Since the Mishkan traveled within the camp and Hashem's presence was there even at the time of travelling, as the gemara darshens (Menachos 95a) - ונסע אוהל מועד, אע"פ שנסע אוהל מועד הוא ואינו נפסל לחם הפנים ביוצא. Since the Kedusha was maintained even while travelling, it was necessary to maintain their formal formation around the mishkan.

This Meshech Chochma is very difficult in light of the gemaras conclusion that there is really no machlokes about the lechem hapanim and kodshei kodshim becoming passul. The gemara concludes that all agree that at the time of travelling, the מחנה שכינה lost it's kedusha, therefore any lechem hapanim that was off the table, and kodshei kodshim would be passul. However, the lechem hapanim that was actually on the table would not become passul. Rashi explains that the אוהל מועד did NOT retain it's status when they travelled, yet the breads on the table would not become passul based on the pasuk of ולחם התמיד עליו יהיה indicating that so long as they remain on the table, they retain their kedusha. Just as they don't become passul due to לינה, they also don't become passul due to יוצא. The gemara does conclude that there is a machlokes tana'im whether the מחנה לויה ומחנה ישראל also lose their kedusha when they travel, or whether the status of מחנה לויה וישראל remain so that the metzorah and zav are still not permitted to enter their respective camps. It seems strange for the Meshech Chochma to base himself on the drasha that even during the travels the ohel mo'ed retained it's kedusha, since it is rejected at the maskana. It seems that the Meshech Chochma understands like R.E.M. Horowitz who says that when the gemara concludes that the pasuk of ונסע אוהל מועד is for the degalim, it doesn't mean as rashi indicates that אוהל מועד is לאו דוקא. Rather, it means that for degalim we darshen ונסע אוהל מועד -אע"פ שנסע אוהל מועד הוא, but we don't use that drasha to permit kodshim to be eaten since for that we require curtains of the azarah (נראה לי דהכי קאמר, לדגלים קרא גלי שהן בקדושתן, ולא לקדשי קדשים דבעו מחיצת קלעים, ומיושב קושיות תוס' בכמה דוכתי). According to this approach, even in the conclusion of the gemara it maintains it's initial drasha that the מחנות and even the מחנה שכינה retain their kedusha, just that it wouldn't permit the eating of kodshim due to the lack of קלעים.

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On a related point (assuming like rashi that the מחנה שכינה didn't retain it's kedusha during the travels) - the gemara says that the issue of the מחנה לויה וישראל retaining their status while they traveled is dependent on the machlokes whether זבין ומצורעין would be chayev misah for entering the azara when the korban pesach is being brought b'tumah. The comparison seems very strange because when the korban pesach is brought b'tumah, the machlokes hinges on whether when we permit tu'mah, we permit all tu'mah. What does this have to do with the issue of whether the camps retain their status during the time of travel? It seems to me that the machlokes between R. Eliezer and the Rabbonon is a very fundamental one. Is the status of the מחנה לויה וישראל dependent on the מחנה שכינה - in other words, is the kedusha of מחנה לויה וישראל an extension of קדושת מחנה שכינה or is their status completely independent of the קדושת מחנה שכינה. R. Eliezer holds that the kedusha status of all the machanos emanates from מחנה שכינה, therefore when a pesach is brought b'tum'ah and we don't treat מחנה שכינה with special status, the status of מחנה לויה וישראל is also lost. The Rabbonon argue and say that the kedusha of the מחנה לויה וישראל is not dependent on מחנה שכינה so that even when the מחנה שכינה is being violated, the מחנה לויה וישראל must be maintained. Similarly, when they traveled in the dessert when all agree that the מחנה שכינה didn't maintain it's status, there is a machlokes whether it is possible for מחנה לויה וישראל to retain their status and not permit זבין ומצורעין to enter the camps, respectively.

Menachos 89a - Amount of oil in Menorah

2011-06-05T11:20:00.000-07:00

The gemara says that the Rabbonon determined that the amount of oil necessary for each candle in the menorah was 1/2 lug of oil per night. This amount would be the right amount for even the longer nights of the winter. However, there is a machlokes in the gemara how they figured out that this was the right amount. One opinion says that began with a larger amount and when they found too much oil left over in the morning, they slowly reduced the amount that they initially put in the candle - the advantage to this approach is אין עניות במקום עשירות, we aren't concerned with "waste" in the beis hamikdash. The other opinion says that they started with a smaller amount of oil (rashi says that they began with a rivi'is - not clear where he gets that from), and when they realized that it didn't last the entire night, they slowly started to add oil - the advantage to this approach is התורה חסה על ממונן של ישראל , not to waste oil. The opinion who says that they started with a small amount of oil and when they realized it wasn't enough, they would add on the future nights, is very difficult to understand. How could they have been cheap on the oil in order to save money since it could lead to not fulfilling the mitzvah of having the candles burn all night long. This gemara seems to imply that the mitzvah of lighting the candles in the beis hamikdash was הדלקה עושה מצוה, similar to what we say by ner chanuka. However, the gemara and rambam clearly hold that the mitzvah was to hvae the candles burning all night long and the mitzvah is not fulfilled at the moment of lighting. Furthermore, even by chanuka the halacha demands that at the time of lighting there is sufficient oil to burn for the duration of the time. This should certainly be necessary by the candles in the beis hamikdash. How can there be an opinion that they began with a smaller amount of oil, and not fulfill the mitzvah of lighting the menorah?

The Nesivos HaMishpat (Chavos Da'as) has a sefer with hagahos on shulchan aruch and its commentaries called M'ginei Artetz. In Hilchos Chanuka he writes:

בספר מגיני ארץ מבעל נתהמש"פ על הל' חנוכה החליט דבמנורה שבמקדש לא אמרינן שהדלקה עושה מצוה וז"ל לכן נראה דמצוה דהדלקה דחנוכה אינו דומה למצות הדלקה דמנורה, דבנר חנוכה אין המצוה רק תחלת ההדלקה שידליק שיעור כזה, תדע דהא כבתה אין זקוק לה ומש"ה צריך לכתחלה ליתן כשיעור, משא"כ במנורה המצוה והחיוב הוא שיהיה דולק כל שיעור הזה דהא כבתה זקוק לה ומש"ה סגי אפילו כשנותן לכתחלה פחות מכשיעור רק שיראה להוסיף בכל פעם עד שידליק כל השיעור וכמ"ד ממטה למעלה (היינו מ"ד במנחות פט ע"א שמתחלה נתנו רביעית ואח"כ הוסיפו עד חצי לוג כשראו שאין סיפוק). ולפי"ז אתי שפיר בס' תרע"ג ס"ב דאמר הדלקה עושה מצוה לפיכך אם כבתה וכו' שעמד עליו הט"ז בס"ק ח' (שהקשה מה הקשר בין הדלקה עושה מצוה לכבתה אין זקוק לה, הא אף אם הנחה עושה מצוה נמי נוכל לומר שאם כבתה אין זקוק לה). ולפמש"כ אתי שפיר כיון דאין מצותה שיהיה דלוקה כל שיעור הזה כמו במנורה, רק תחלת ההדלקה לפיכך אם כבתה וכו' ואתי שפיר עכ"ל. הרי סובר דהא דנקט המחבר לשון "הדלקה עושה מצוה" לאו לאפוקי הנחה אלא לאפוקי המנורה שבבית המקדש שהמצוה לא נגמר במעשה הדלקה אלא המצוה היא שתהא דולקת ועומדת.

The Nesivos explains that the opinion who says that they started with a smaller amount of oil doesn't mean to say that they put a rivi'is in the first night and when they saw it went out early they added a little the next night. Rather, they started with a rivi'is and when they realized at 4am that it wasn't going to last until the morning, they added a little more. Then at 5am when they saw it wouldn't last they added a little more, until they realized that it would take a half lug to stay burning until the morning. This is actually very medu'yak in rashi who writes:שבתחלה נתנו רביעית ועמדו שם וראו שאין סיפוק ושוב הוסיפו עד חצי לוג. Rashi clearly holds that they stood there all night adding oil until they figured how much would be needed. The nesivos explains that this was av viable option since in the beis hamikdash we don't say הדלקה עושה מצוה, so that adding oil after it is already burning is acceptable. However, Rashi in the k'sav yad clearly writes: בתחלה רביעית הלוג, ולא דלק אלא חצי הלילה, ליל שני הוסיפו וכן כמה לילות עד ששיערו חצי לוג ללילה. Rashi in the k'sav yad holds that they would add more the next night. According to this approach it is very difficult how they could be meva'tel the mitzvah the first few nights just to save a few pennies! Rabbeinu Gershom seems to say that they originally thought that less than a half lug would be sufficient. They never made this decision in order to save money, rather because they thought that it could indeed burn all night. Eventually they realized that a half lug was necessary to burn all night, but we learn from the fact that they initially put in what they thought is the bare minimum that the Torah cares about not wasting money and it is therefore "not permitted" to add more than a half lug.

Menachos 86b - Need the Lights?

2011-06-02T15:58:00.000-07:00

The gemara emphasizes that Hashem doesn't need the light of the Menorah because all 40 years that the Jews were in the dessert they were led by the light of Hashem. Therefore the light of the menorah, and particularly the Ner Ma'aravi was an indication that the presence of Hashem is with the Jewish people. The gemara also says that the windows in the Beis HaMikdash were wide on the inside and narrow on the outside to funnel the inner light out to the world, as opposed to enabling sunlight to come from outside.

Tosafos says that a similar gemara in Shabbos makes a point of saying tha Aharon didn't need the light of the Menorah, as opposed to our gemara where the emphasis is on Hashem. I would suggest that they are both true. At the beginning of Parshas B'ha'aloscha the pasuk says אל מול פני המנורה יאירו שבעת הנרות. Rashi explains that the Menorah was designed so that the 6 candles, 3 on each side, faced the center candle "Why? So that people should say that He needs the light". The Maharal explains that normally one designs a candelabra so that each candle shines in a different direction to light up the larger area. The fact that all candles faced the center is symbolic of the fact that Hashem doesn't need the light. The pasuk then continues "ויעש כן אהרן אל מול פני המנורה העלה נרותיה" and Rashi explains that this is too show the praise of Aharon that he didn't deviate in any way from what he was told. The commentaries are very troubled with this pasuk. We are speaking of Aharon the Kohein, the brother of Moshe Rabbeinu - who would think that he would deviate from the way things were done? The Maharal says that he made special effort to be meticulous so that each wick faced the middle candle. This was s delicate detail that one could have been lax in, yet Aharon did it with great precision. To build on this approach, the pasuk is trying to teach that aside from Aharon lighting the candles all facing center to show that Hashem doesn't need the light, he also did this to show that he who will be working in the mishkan, doesn't need the light. When Aharon did the lighting of the menorah to face the middle, he did so with the intention of showing that Hashem doesn't require the light and that he doesn't need the light. This pasuk may be the source of both our gemara which says that the way the menorah was lit shows that Hashem doesn't need the light, and the gemara in Shabbos which says that it shows that Aharon doesn't need the light.

Menachos 85a - Coals to New Castle

2011-06-01T14:47:00.000-07:00

The gemara tells of a strange discussion that took place between two Egyptian sorcerers and Moshe Rabbeinu. They challenged Moshe that his "tricks" of turning the stick into a snake and water into blood are unimpressive - תבן אתה מכניס לעפריים - you are bringing more straw into a place abundant with straw. Egypt had plenty of magic so that Moshe's magic didn't impress them. Moshe responds למתא ירקא, ירקא שקול, to a place where vegetables are abundant that is where you bring your vegetables to sell. Rashi explains that the entire dialogue was silly and pointless. Since they challenged Moshe with a silly parable, he responded in kind. The message in Moshe's statement seems to be that where magic is popular, it is appreciated. The Maharsha explains that they specifically chose a parable of straw which is all the same. They were indicating to Moshe that his magic was no better than theirs. To that Moshe responds with a parable of vegetables which are all different grades and qualities, indicating that the signs he was preforming were well beyond their capabilities.

I would like to suggest an alternate approach to the conversation. The concept of bringing something unnecessary, such as coals to new castle (known as a major coal exporter), is foolish only if the goal is to sell your coal. However, if the goal is not to peddle your own wears but to show contrast in order to undermine what is already there, it is very logical to bring a higher form of the same. Their argument to Moshe is that he won't be able to use his magic to convince the Jews or Pharoh that he is an agent of G-d because it is like bringing straw to עפריים - a city that thrives on straw. To that Moshe responds that he doesn't need miracles to convince the Jews of Hashem. The Jews inherently will believe that he was sent by Hashem to take them out as promised, but they are being fooled by the magic of the Egyptians. Therefore, Moshe responds that he is bringing his high grade vegetables into a place that has low grade vegetables (as the maharsha explained), with the goal of undermining their magic. The magic of the Egyptians was the curtain blocking their vision from seeing Hashem. Once Moshe is able to show that their magic isn't special, he removes the curtain and enables them to clearly see him as the shaliach of Hashem.

Menachos 83b - Omer and Shtei HaLechem from Old Grain

2011-05-30T14:23:00.000-07:00

The mishna says that the only two korbanos that MUST be from new grain and from E.Y. are the korban omer and shtei ha'lechem. The gemara says that the mishna is against the Tanna of the Braisa who allows that there is a mitzvah to bring the omer and shtei ha'lechem from new grain, but if they are brought from the old grain, they are kasher. There are a few conclusions that we can draw from this gemara. 1. All agree that ideally the omer and shtei halechem should be from the new grain. 2. The machlokes between the braisa and the mishna is whether the omer and shtei halechem brought from old grain would be a valid korban (braisa), or invalid (mishna). 3. There is no distinction between the omer and shtei ha'lechem, if one is valid from old grain then the other is also valid.

These seemingly obvious conclusions make the Rambam very difficult to understand. The Rambam writes about this din in 3 places. In Hilchos Issurei Mizbei'ach (6:15) he copies the language of the mishna implying that both omer and shtei halechem MUST be from new grain of E.Y. However, in Hilchos Temidin U'musafin, in the context of shtei ha'lechem (8:2) the Rambam writes - שתי הלחם אינן באין אלא מן הארץ ומן החדש שנאמר ממושבותיכם תביאו לחם תנופה, לא מצאו חדש יביאו מן העליה. The Rambam holds that shtei ha'lechem would be valid when brought from old grain. Yet, one perek earlier in the context of korban omer, the Rambam writes (7:8) that the omer must be brought from Eretz Yisroel but makes no mention of the requirement of being from the new grain. Furthermore, the Ra'avad makes a strange comment on the Rambam who permits the shtei halechem to be brought from old grain when no new grain is available - הלכה זו בהפך. It is very unclear what is bothering the Ra'avad. Perhaps the Ra'avad understands that it is more likely to permit grain from outside E.Y. since we hold that there is an issur chadash even in chutz la'aretz, rather than permit using old grain.

The Kesef Mishna struggles with the Rambam and suggests (2nd approach) that the Mishna holds that both omer and shtei halechem lichatchila must be brought from new grain, but bidieved can be brought from old grain. The tanna of the braisa holds that there is a distinction between omer and shtei ha'lechem - shtei ha'lechem even lichatchila can be brought form old grain and is only a mitzvah min ha'muvchar to be brought from new grain, whereas omer lichatchila must be brought from new grain. This approach understands that there is a difference between the terms "mitzvah" and "lichatchila". The term mitzvah implies that it is ideal but not necessary, whereas the term lichatchila implies that it is necessary but not essential to the kashrus of the korban. Therefore the Rambam would hold that we pasken like the braisa that the omer lichatchila must be brought from new grain, whereas shtei halaechem it is only ideal but can be brought from old grain. According to this approach, the tanna of the mishna can hold that both the omer and shtei ha'lechem lichatchila must be brought from new grain, and only bidieved can be brought from old grain - the Rambam paskens like the mishna. This is also the approach of the Maha'ri Kurkos, there are 3 levels: mitzvah min hamuvchar, lichatchila and bidieved. The only arguement between the braisa and the mishna is whether the din of bringing from new grain is lichatchila or just ideal, but all agree that if no new grain is available, it can be brought from old grain.

In the question and answer of the gemara, the gemara asks on the braisa how we permit the omer and shtei halechem from old grain - what do we do with the pasuk of ראשית, to which the gemara answers that is only l'mitzvah. The gemara then asks what about the pasuk by shtei halechem which says מנחה חדשה implying new grain, and answers that it is coming for something else. When the gemara initally asks from the pasuk of ראשית it isn't clear if the gemara is asking from the pasuk by the omer - ראשית קצירכם, or from the pasuk by shtei ha'lechem - קרבן ראשית תקריב. According to the approach of the kesef mishna, the gemara which asks from ראשית and answers that it is only l'mitzvah has to be speaking about the shtei halechem which lichatchila can be brought form old grain, but omer is not just l'mitzvah, it must lichatchila be brought from new grain. Similarly, Tosafos (bottom of page) seems to understand that the question is from shtei halechem because Tosafos understands that חדשה is emphasizing what we learn from ראשית and the repeat should be me'akeiv. However, according to the kesef mishna the repeat should only tell you lichatchila (since the first time is l'mitzvah), which is not like tosafos who understands that the repeat is to tell you it is me'akeiv. Rashi in the k'sav yad explains that the question from ראשית is both by shtei halechem and omer, to which the gemara is answering that it is only l'mitzvah - against the approach of the kesef mishna.

Tosafos d.h. masninisin, is quoted by the ma'ahri kurkos on the Rambam as holding that the mishna permits both the omer and shtei ha'lechem to be brought bidieved from old grain, implying that the braisa holds that even lichatchila it can be brought from old grain, just not l'mitzvah (which is like his approach and the kesef mishna approach in the Rambam). However, he seems to have a completely different girsa in Tosafos. According to our girsa, Tosafos seems to be saying the opposite. Tosafos says that the language of the mishna אינן באין אלא מן החדש is does NOT imply just lichatchila, which is against the braisa that holds it is only lichtachila. Tosafos seems to hold like rashi (k'sav yad) that there are only 2 categories: 1. l'mitzvah = lichatchila, 2. bidieved.

Menachos 77b - Shiur of Challa

2011-05-24T14:55:00.000-07:00

The gemara discusses the amount of "teruma" that needs to be taken from the Todah breads and contemplates learning out the amount from terumas ma'aser. The gemara suggests learning out from challah which is also called teruma, to which rashi explains that the shiur would be 1/48th. Both Rabbeinu Gershom and the kesav yad of rashi explain that it would be 1/24th [This is not a consequential difference since the shiur for challa is 1/24th for a ba'al habyis and 1/48th for a nach'tom. The Nodeh B'Yehuda suggests that according to the Rambam in pirush hamishna the real shiur for challah is 1/48th, just that the women baking will tend to be cheap and if we tell her 1/24 she will at least give 1/48th - that is why rashi picks the number 1/48]. The Nodeh B'yehuda (tinyana y.d. 201) asks that challah doesn't have a shiur according to the Torah, similar to Teruma gedolah which has no shiur. Since the shiur of 1/48 is only Rabbinic, how can the gemara suggest to learn out that the shiur of the Todah breads will also be 1/48?

The Nodeh B'Yehuda suggests something that "no commentary or posek had already said". The mitzvah of challah contains two parts. One is to remove the status of tevel on the dough thereby permitting it to be eaten. The second is the aspect of gifting it to the kohein. The first aspect has no shiur, similar to Terumah where even the smallest amount renders the remainder chulin. But, the shiur of 1/24 or 1/48 is a Torah obligation as the minimum amount to be given to the kohein. However, the shiur of 1/24 is the minimal amount of the minimum amount that is chayev in challa (isaron), that is necessary to be considered a "giving" to the kohein. On a Torah level it wouldn't matter whether one is kneading 1 Isaron or 50 Isaron, the amount that must be given to the kohein is the same - 1/24 of an Isaron. The Rabbonon then came along and required that one give 1/24 of whatever amount they are baking to the kohein. The son of the Nodeh B'yehuda elaborates about his fathers opinion and writes that although there are two parts, they must go together. One cannot separate a tiny amount to be matir the dough to eat and then separate 1/24 to give to the kohein. One must separate initially 1/24th in order to fulfill the mitzvah properly, but if they had already separated a tiny amount, there is no way to add on to that amount and properly fulfill the mitzvah. According to this approach, if one would separate a tiny amount to be given to the kohen, it is a מעוות שלא יוכל לתקון and at the time of separating they are inevitably in violation of the mitzvah to give a proper amount of challah to the kohein.

The Mitzpeh Eisan says that this peshat has already been said by the Tosafos Rid in Kiddushin 58.

Menachos 75b - Shehechiyanu on Mitzvos for First time

2011-05-22T16:06:00.000-07:00

The gemara says that if one was bringing a korban mincha in Yerushalayim they make shehechiyanu. Rashi explains that we are speaking about a koehin who has never before brought a korban mincha or at least never brought this type of korban mincha. According to Rashi the gemara is being mechadesh that one make a bracha of shehechiyanu on their first time fulfilling a mitzvah. Tosafos says that the reason for making the shehechiyanu is not because it is his first time but because the kohanim were divided into mishmaros and batei avos so that each kohein would only do avoda twice a year. Tosafos holds that bringing korbanos is considered a mitzvah that comes m'zman l'zman and is worthy of shehechiyanu.

There is a discussion in the Rishonim whether one makes a bracha on the mitzvah of kisuy ha'dam (covering the blood when schechting a bird or chaya). According to Tosafos this gemara would not be a source for the bracha on kisuy ha'dam because you would only make shehechiyanu on mitzvos that are somewhat dependent on the calendar and therefore come m'zman l'zman. However, according to Rashi this gemara would set a precedent for making a shehechiyanu the first time that one fulfills a mitzvah. The Shach (y.d. 28:2) quotes the rokeach who says based on this gemara that the first time in one's life that they fulfill any mitzvah, they make shehechiyanu. The shach points out that our minhag is not to make a shehechiyanu the first time we fulfill a mitzvah from the fact that we don't make shehechiyanu on tzitzis and tefillin. He therefore argues on the Rama who says to make shehechiyanu the first time doing kisuy ha'dam. The tzvi la'tzadik justifies the position of the Rama. The Rama holds like Rashi/Rokeach that we make a bracha the first time performing a mitzvah, so long as it is fulfilled the first time as an adult. Therefore, tzitzis and tefillin which people usually begin before bar mitzvah, they don't make a shehechiyanu when they are pre-bar mitzvah, but also don't make it upon becoming bar mitzvah since they have already done the mitzvah before. The Gilyon MaHarsha (gemara) asks from kiddushin and mezuza (which are performed the first time as an adult) and still we don't make shehchiyanu. The Pri Megadim holds that since it is a safeik (according to Tosafos we don't have a source for making a shehchiyanu the first time performing a mitzvah), one shouldn't make shehechiyanu the first time performing a mitzvah.

Menachos 72a - Harvesting Pushing Off Shabbos

2011-05-19T11:42:00.001-07:00

Tosafos 66a writes that if one forgot to count sefiras ha'omer at night, the be'hag holds that they can count by day with a bracha. Tosafos attempts to support that bidieved one can count by day from the mishna 71a that the mitzvah of harvesting is at night, but bidieved can be by day. Tosafos quotes Rabbeinu Tam that since we pasken that harvesting pushes off shabbos, we are forced to say that harvesting cannot be done by day (the assumption is that if it can be done the day after the night of the 16th it can also be done the day before - tosafos 72a). Therefore, we don't pasken like the mishna that harvesting by day is kasher, rather we pasken like the mishna in megilla that any night mitzvah cannot be fulfilled during the day.

Tosafos understands from the sugya 72a that the two halachos of 1. harvesting can be done by day (even the day of the 15th or 14th), and 2. harvesting pushes off shabbos, cannot both be correct. The gemara 72a explains that if the harvesting is kasher when done by day, even if it is bidieved, we cannot push off Shabbos just to fulfill the ideal of harvesting at night. However, the Rambam (Temidin U'musafin 7:6-7) paskens that harvesting the omer pushes off shabbos, yet paskens that if done by day it is kasher bidieved (as the mishna 71a and braisa 72a seem to say). The Shach in Hilchos Milah (y.d. 262) asks on the Rambam that his rulings contradict the gemara which clearly states that if it can be done before shabbos, it doesn't push off shabbos - the notion of pushing off shabbos just to fulfill the mitzvah min hamuvchar is rejected by the gemara? Based on this, the Shach proves that based on the sevara of the gemara that even a bris mila which pushes off shabbos, would not push off shabbos if it could be done before shabbos. The ideal fulfillment of a mitzvah doesn't push off shabbos, unless the mitzvah will be entirely lost. Based on the fact that milah pushes off shabbos, the Shach rejects the p'sak of the Rama who says that mila is kasher even if done before the 8th day. The Aruch HaShulchan points out that the halacha of ketziras ha'omer doesn't prove anything about milah. He explains this based on Tosafos on the bottom of 72a that by mila the gezeiras hakasuv of b'yom - even on shabbos, teaches that even if it can be done before it would push off shabbos. It is only by harvesting the o'mer where the fact that it pushes off shabbos is learned from korban tamid that Tosafos explains that if it can be done before shabbos it wouldn't be similar to Tamid and we couldn't learn from there that it pushes off shabbos.

To answer the question on the Rambam, both the Beis Halevi (teshuvos 1:38) and the Aruch Hashulchan (y.d. 262) explain that the Rambam had other gemaras to rely on that assume that even the ideal method of performing a mitzvah can allow shabbos to be pushed off, even though it could have been done prior to shabbos. Since both harvesting on the night of the 16th and mila on day 8 is the ideal way to perform the mitzvah, it pushes off shabbos. Based on the Rambam that harvesting is kasher by day, Rabbeinu Tam has no proof against the Behag and counting the omer can also be by day.

לכאורה יש קושיא גדולה על הנחת הגמרא. יש כאן ב' דיונים, חדא אם מקיים מצות קצירה והשני אם כשרה לקרבן העומר. והנה, כיון דמצות קצירת העומר דוחה שבת, היה מסתבר לומר דכל שאפשר לקיים מצות קצירה לפני השבת אינו דוחה את השבת, ורק כשאי אפשר לקיים מצות קצירה קודם השבת דוחה את השבת. אבל אין זה מקושר להא דאם נקצר ביום כשרה, שהרי אפילו אם היה כשרה להביא ממנו קרבן עומר, אילו לא מקיים מצות קצירה היה ראוי לדחות את השבת דמצות קצירת העומר דוחה את השבת. וא"כ היה אפשר לפרש כוונת הרמב"ם שאם קוצר ביום אינו מקיים מצות קצירה מש"ה מצות קצירת העומר דוחה את השבת, והא דכתב הרמב"ם שאם נקצר ביום כשר, היינו שכשר להביא ממנו קרבן עומר ולאו משום שבדיעבד מקיים בזה מצות קצירה. אמנם בגמ' לא משמע כן כלל, שהרי בגמ' קאמר דאי ס"ד נקצר שלא כמצותו (כגון ביום) כשר, אמאי דחי שבת, נקצריה מערב שבת, אלא מדדחי שבת ש"מ נקצר שלא כמצותו פסול. הרי בהדיא תלה הגמ' דין דחיית שבת בכשרות ופסלות להביא ממנו קרבן עומר, ובאמת היה מסתבר שיהיה תלוי אם מקיים בזה מצות קצירה והכי הול"ל דאי ס"ד שבנקצר ביום מקיים מצות קצירה עכ"פ בדיעבד לא הו"ל לדחות שבת, א"ו אינו מקיים מצות קצירה, אבל לא הו"ל לתלות דחיית שבת בכשרות ופסלות. איברא, שהיה אפשר לפרש דקים להו לחז"ל דכל שמצות קצירה הוא חלק ממצות העומר, וכל שאינו מקיים מצות קצירת העומר, נפסל להביא ממנו קרבן העומר. לפיכך קים להו בפשיטות דהא דיצא ולא יצא במצות קצירה תלוי בכשרות ופסלות להביא ממנו לעומר, דאם יצא כשר לעומר ואם לא יצא מצות קצירה פסול לעומר. אמנם זה לא יתכן, שהרי במתניתין עא ע"א תנן מצות העומר לבא מן הקמה, לא מצא יביא מן העמרים. רש"י פירש דמצות להביא מן הקמה שתהא קצירה לשמה ומשמע שבזה מקיים מצות קצירה, אבל אם לא מצא קמה משום שכבר נקצר הכל שלא לשם מצוה או ע"י נכרי באופן שלא קיים מצות קצירה, מ"מ יביא העומר מן העמרים. אלמא שאין מצות קצירה חלק יסודי של מצות העומר, ואף בלי קיום מצות קצירה יכול להביא ממנו העומר. וא"כ חזרא קושיין לדוכתיה על הש"ס, אמאי תלה דחיית שבת בכשרות ופסולת של העומר, הו"ל למתלי דחיית שבת בהא דאם אפשר לצאת מצות קצירה כשקוצר מבעוד יום. ואפשר לומר דס"ל להש"ס דבאמת אין מצות קצירה דוחה שבת אלא מצות הבאת העומר דחי שבת, ולכן הכל תלוי אם כשר או פסול להביא ממנו קרבן העומר. וקאמר הש"ס דאילו היה כשר לעומר כשנקצר ביום, אין הכרח לדחות שבת כדי להביא העומר וע"כ לא דחי שבת, אבל אם נקצר ביום פסול ורק בליל ט"ז כשר, ע"כ דחי שבת כדי להביא ממנו קרבן העומר למחר. ויש להביא סמך לזה, דבגמ' עא ע"א יליף דדוחה את השבת מדכתיב "תקריב" ואפילו בשבת, ולכאורה קמיירי בקצירה (דלא כמו שדחק התוס' דקמיירי בהקרבה) ויליף מקרא ד"תקריב" אלמא דעיקר ההיתר לקצור בשבת הוא משום מצות הקרבת העומר ולא משום מצות קצירה. היוצא מדברינו שבאמת אינו ברור לי מקורו של הרמב"ם לדחות גמ' ערוכה. מ"מ יסוד המח' בין הנחת הש"ס והנחתו של הרמב"ם, שהש"ס סובר דמצות הקרבת העומר דוחה שבת אלא שבדרך כלל אין הכשר מצוה דוחה שבת, וזה חידוש של מצות קצירה דדחי שבת כדי להקריב ממנו העומר. ולפי"ז אם היה אפשר להקריב בלא דחיית שבת אין מצות קצירה דוחה שבת. אבל הרמב"ם סובר דמצות קצירה דוחה שבת כמו מצות הקרבה, ואע"פ שאפשר להקריב מן העמרים, כיון שמבטל בזה מצות קצירה דחינן שבת כדי לקיים מצות קצירה כראוי. ואכתי צ"ב יותר

שוב מצאתי בשפת אמת שכתב לפרש דברי הרמב"ם ממש כמו שכתבתי שכוונתו דכשר להביא העומר ממנו אבל לא קיים מצות קצירה, ודחאו

Menachos 70a - Harvesting Before the Omer

2011-05-17T16:02:00.001-07:00

The Mishna says that one cannot harvest before the Omer (according to some girsa'os it should say before pesach). The Rambam (Hil. Temidin U'musafin records this halacha by saying

אסור לקצור בא"י מין מחמשת מיני תבואה קודם לקצירת העומר שנאמר "ראשית קצירכם" שיהיה תחלה לכל הנקצרים

The Rambam clearly holds that this halacha is limited to harvesting inside Eretz Yisroel. He also clearly writes that the heter to harvest is not dependent on the bringing of the korban o'mer, rather on the harvesting of the o'mer. Although the Kesef Mishna asks that the gemara 70b implies that one cannot harvest before the bringing of the omer, the lechem mishna explains that the Rambam's ruling of it being dependent on the harvesting of the omer is clear from Rashi 70b that harvesting is already permitted on motzei yom tov, immediately after the harvesting of the omer.

However, it is unclear whether this prohibition applies even in E.Y. after the destruction of the beis hamikdash when there is no longer a korban omer. The Sha'ages Aryeh (chadashos 8) explains that the Rambam holds that it applies nowadays as well, since he doesn't limit the prohibition by saying that it only applies with a beis hamikdash. Obviously, there isn't any harvesting of the O'mer nowadays, but the sha'agas aryeh holds that it would be assur until the morning of the 16th since the omer was able to be harvested all night after the 16th. The main proof of the sha'agas aryeh that the prohibition to harvest in E.Y. applies even when there is no beis hamikdash is that Tosafos in Pesachim 56a explains that the people of Yericho (mentioned in the mishna 71a) who harvested before the omer. The Sha'agas Aryeh understands from the juxtaposition to בית השלחין that the heter to harvest before the omer is that it is grain unfit for the o'mer, implying that otherwise it would be assur. Tosafos in Pesachim writes that the "anshei yericho" was after the destruction of the beis hamikdash, implying that even after the destruction there was an issur to harvest before the morning of the 16th from any grain that was technically fit for the korban omer. In the next siman (9) the sha'agas aryeh goes on to discuss whether if one were to harvest before the omer, the grain would be forbidden to eat.

The Rashash doens't mention the sha'agas aryeh, but quotes from the mishkanos ya'acov (y.d. 64) who also held that the prohibition to harvest before the 16th of Nissan applies nowadays. The Rashash aruges and says that since the pasuk makes it dependent on the harvesting of the omer, it will only apply when there is an omer to harvest. Tosafos 70b explains that the machlokes in the gemara between R. Yona and R. Yossi bar zavda whether it is assur until the omer is brought or until the omer is harvested, is speaking about the prohibition to harvest prior to the omer (not the issur to eat chaddash, as rashi explains). According to Tosafos approach, the conclusion of the gemara is that harvesting is assur until the harvesting of the omer, which implies that the prohibition is only when there is an omer to harvest for.

Menachos 69b - Ma'aseh Nissim

2011-05-16T17:08:00.000-07:00

The gemara asks a strange question about whether wheat that falls from the sky can be used for the שתי הלחם that is brought on Shavuos. The gemara explains that the fundamental question is whether the requirement to bring the שתי הלחם from מושבותיכם means that it must be brought from produce of Eretz Yisroel, or is just to exclude using grain grown in chutz la'aretz. Meaning, grain that is not grown in E.Y. but is also not grown in chutz la'aretz would fall under this question. This gemara understood this question to be merely a theoretical, but nowadays is very practical. Hydroponics which is the ability to infuse water with nutrients that are typically found in the soil to provide a source from which the plant can draw it's nutrients, would seemingly qualify as produce not grown in E.Y. or chutz la'aretz.

Rashi and Tosafos try to explain the case of "wheat falling from the clouds". Rashi says that if a cloud would swallow a boat full of wheat and ascend, it could rain wheat. Tosafos doesn't take issue with that being a possibility, but says that if we are speaking about naturally grown wheat then the fact that it was brought up in a cloud shouldn't be relevant. Had it been wheat that was grown in E.Y. it would be usable for the shtei halechem, and if it was wheat grown in chutz la'aretz then it isn't usable. Therefore, Tosafos says that we are speaking of miracle wheat that initiated from the cloud and wasn't grown down on the land.

The Mitzpeh Eisan asks in the name of the minchas kohein that miracle wheat shouldn't be acceptable as a korban mincha because only food that is permitted to be eaten can be used - ממשקה ישראל - מן המותר לישראל, and miracle food is not allowed to be eaten like the gemara says in ta'anis that it is forbidden to benefit from something produced by a miracle? The Mitzpeh Eisan answers the question that the concept of not benefiting from a miracle isn't an issur, it is merely a middas chasidus. He then proceeds to prove from various places that there is no actual prohibition to benefit from a miracle, and therefore this wheat would be usable from the shtei halechem.

It seeems to me that the mitzpeh eisan may have overlooked a Rashi in ta'anis who writes this explicitly. The gemara in Ta'anis 24b speaks of a miracle where sand turns to flour, and on 25a speaks of a fire that is produced by a miracle that was used for havdala. Rashi 24b writes -

אמר להו מעשה נסים הוא, ובמה דאפשר להתרחק ממעשה נסים יותר טוב ונכון

Rashi clearly writes that the idea of not benefiting from ma'aseh nissim is "proper" but certainly not an issur. Regarding the use of fire produced by a miracle for havdala, rashi says that they lit another candle from that one therefore it wasn't considered using the fire of a miracle. It isn't so clear why rashi has to say that unless he holds that one must actually derive benefit from the havdala candle (we usually assume that we don't need to benefit but we show that we are able to benefit from the light).

Menachos 68b - Chodosh B'zman Ha'zeh

2011-05-16T14:46:00.000-07:00

The gemara cites various opinions as to when it would be permitted to eat chodosh nowadays, depending on whether it is d'oraysa, and depending on the institution of R. Yochanan Ben Zakai who held that the entire day of the 16th is assur. The gemara explains that the opinions who aren't concerned for the sfeika d'yoma must hold that the issur chodosh in chutz l'aretz is only d'rabonon, therefore mi'safeik it is mutar. However, the final opinion in the gemara is that chodosh is assur m'doroysa on chutz la'aretz and is assur without a beis hamikdash the entire day 16, therefore is assur nowadays until nightfall after the 17th of Nissan. This is paskened in Rambam and Shulchan Aruch at the end of hilchos pesach. The Rambam refrers to the issur through the 17th as "divrei sofrim" rather than a s'feika d'yoma because nowadays we are experts in when the actual rosh chodesh is and only maintain the original system based on מנהג אבותינו בידינו. The Rambam seems to refer to this "minhag" as divrei sofrim.

The Mordechai (Beitza, perek 1) asks that we have a rule that דבר שיש לו מתירין is assur even when it is just a safeik. Why does the gemara have to say that chodosh is assur on the 17th since it is d'oraysa and we are concerned for the sfeika d'yoma, even if it's only d'rabonon we should be concerned for the sfeika d'yoma? He answers that since the issur comes again the next year, it isn't considered a דבר שיש לו מתירין. The Achronim ask on this Mordechai that the grain which became mutar this year will never become assur again, therefore we should consider the grain of this year a davar she'yesh lo matirin and say that it is assur m'safeik, even if the safeik is d'rabonon? The Cheshek Shlomo (R. Shlomo Vilna) answers that the safeik of chodosh is not on the grain, rather it is a safeik on the days whether the 17th is still assur to eat chodosh. Had the safeik been a safeik on the grain, it would not be considered a safeik that is חוזר לאיסורו but not that the safeik is on the day, it is considered a safeik that will return next year until we start sanctifying the new moon through witnesses. The concept of דבר שיש לו מתירין only applies when the issur happens to occur but not when it is an established system that will return year after year. Therefore, even though the actual grain will never become assur, it is regarded as a דבר שיש לו מתירין.

Menachos 66a - Agenda of Baytusim

2011-05-15T21:56:00.000-07:00

The mishna on 65a explained that they would harvest the omer in large groups reciting responsive statements to show that they are not in line with the baytusim who had an agenda to make shavuos on sunday. The gemara 65a on the bottom indicates that the distortion of the baytusim didn't stem from their misinterpretation of the verse ממחרת השבת, rather they had an agenda to make shavuos on Sunday and therefore misinterpreted the verse.

Why did the baytusim want shavuos to be on Sunday?

It seems that they were primarily be creating a separation between the holiday of shavuos and the day of receiving the Torah. Being that the Torah never connects shavuos with matan torah, they had the ability to claim that the two have nothing to do with one another. If it were a celebration of matan Torah it must always be 50 days after the second day of pesach, but if the 50 day count only began from the next shabbos, it would not fall on the day of matan torah.

The Chasam Sofer (O.C. 141) raises the question - why didn't they want to celebrate matan torah? The Baytusim also believed in the written Torah so what was the point of creating a disassociation with shavuos? The Chasam Sofer explains that according to our tradition, the written Torah was accepted through na'aseh v'nishma, but the oral Torah had to be forced upon us כפה עליהם את ההר כגיגית (shabbos 88a). It doesn't seem right to celebrate a Torah that was forced upon us, therefore we celebrate the willful acceptance of the written Torah. But, the baytusim who didn't believe in an oral torah must have understood that he force was on the written Torah, so there is nothing to celebrate. That is why they felt that there shouldn't be a holiday associated with receiving the Torah. The approach of the C.S. strange because it is likely that the baytusim wouldn't have had the "tradition" that any torah was forced upon us and would have assumed that we accepted the "only" torah which was the written one by saying na'aseh v'nishma.

I would like to suggest another approach. The gemara 65a explains that in the conversation between R. Yochanan Ben Zakai and the Baytusim they made a claim that Moshe on his own tried to make shavuos back to back with shabbos so that klal yisroel can celebrate for two days. This indicates that their primary intention was to say that Shavuos was not a divine holiday, rather it was an institution of Moshe Rabbeinu. Why did they want to say this? I explained in my sefer Mayim Rabim (pg 205) that the events of matan Torah where Moshe added an extra day, was an implementation of the power of the Rabbonon to interpret the Torah and innovate law on a d'oraysa level. The Baytusim obviously couldn't accept that the Torah handed this level of power to the Rabbonon. They therefore would assume that Moshe's additional day was something he did on his own, without divine intervention. The Baytusim follow through with this conspiracy theory by saying that Moshe did things on his own, without G-d telling him to do so. They were adamant that shavuos should be on Sunday to indicate that it was Moshe's doing, not G-d, which would support the notion that there was never any power given to human beings at the time of matan torah.

Menachos 65b - Counting Verbally

2011-05-13T09:58:00.000-07:00

The gemara understands from the pasuk וספרתם לכם that there is an obligation on each and every person to count sefiras ha'omer. Tosafos contrasts this to the mitzvah of counting to the yovel year which is only a mitzvah on the beis din, and question whether it is an obligation on the beis din to verbally articulate the count with a bracha as we do by sefiras ha'omer. However, for the counting of a zava Tosafos writes that there wouldn't be a bracha since it can get messed up if she would begin to bleed. Tosafos seems to be saying that we wouldn't make a bracha on something that is not predictable and within a person's control such as the bleeding of a zava, but it would still be fundamentally the same as the counting of sefira and yovel - to verbally articulate the count. The Pischei Teshuva (Y.D. 196:4) cites the Shl"a who requires a verbal articulation of the 7 clean days of a zava. The Shl"a understands from Tosafos that the bracha isn'e made, but the requirement to count is fundamentally the same as the counting of the omer and yovel. However, the Node B'yehuda argues as does many others, that the counting is fundamentally different and wouldn't require a verbal articulation. The Sidrei Tahara (196:18 d.h. mihu) writes that although one doesn't need to verbally articulate the number of days, they must have a concious thought of the number of days and consider them to be counting toward he clean days.The question is, what is the indication that the counting of a zava should be fundamentally different than the counting of sefira and yovel? To answer this question, the Sidrei Tahara quotes the Re'ah who writes תשובת דבר זה מה שהקדמתי לך בראש ספרי כי כל ענין התורה תלוי בפירוש המקובל. Meaning, we must follow the oral interpretation and cannot figure it out from the text. He points out that we find a similar discrepancy regarding the term זכירה. By yetzias mitzrayim we have a tradition that it must be verbally articulated but not by miriam. The Sidrei Tahara himself suggests a hint in the pasuk for the distinction of a zav and zava. By a zav and zava it says וספר לו and וספרה לה - why would the Torah have to point out that they are counting for themselves? It must be to teach that they are trusted on the bedika, rather than demanding a verbal count. The Meshech Chochma (Emor) has a different approach to explain the difference. Normally when we refer to a count, the purpose is to separate the days that are counted and infuse them with a special status. For example by a zav and zava it is a status of clean days that is acheived by being clean, it is not automatic. However, in the context of sefiras ha'omer and yovel where the days pass automatically and there is nothing specific to do, the requirement to count must mean a verbal count because there is no other possible demand. This explains the pasuk of וספרתם לכם ממחרת השבת וכו but the pasuk of תספרו חמשים יום is more similar to the "count" of zav and zava by giving that day a special stature, and not demanding a verbal count. תספרו חמשים יום means that day 50 is yom tov and is distinct in it's nature than the days that proceeded it. With this we are able to easily answer Tosafos question (d.h. kasuv) - why do we only count 49 days and not 50? The answer is that whenever we can explain the count to refer to a special status i.e. clean days or yom tov, we don't assume it requires a verbal count. The Meshech Chochma also explains the gemara on the bottom of the page - ואם תאמר ממחרת שבת בראשית, פעמים שאתה מוצא נ"א ופעמים שאתה מוצא נ"ב... meaning that sometimes the special day which is the "counted" day, will not be on day 50, rather anywhere between 50-56.

Menachos 64b - How Long did Mordechai Live?

2011-05-11T15:27:00.000-07:00

The gemara tells about a civil war between the kings that descended from the chashmonaim when they were trying to capture Yerushalyim and were advised to send a pig up the basket that we used to import the korban tamid. During that period there was no wheat or barley anywhere in the vicinity of Yerushalayim. The Maharsha explains that they were making a concerted effort to be mevatel the korban tamid, omer and shtei ha'lechem. The gemara tells that Mordechai was able to figure out how to communicate with a mute person who was able to tell him through sign language where there would be hidden areas that the troops did not destroy from which they can bring the korbanos. To put things in historical perspective, the chanuka story occurred 206 years before the destruction of the 2nd beis hamkidash. The chashmonaim were all killed out by Herod who took control 103 years before the destruction of the beis hamikdash (avoda zara 9a). It would seem that this story was at the end of the chashmonaim reign - approximately 110 years or so before the destruction. This is almost 100 years after the chanuka story and over 300 years after the purim story (2nd beis hamikdash stood for 420 - גדול יהיה כבוד הבית הזה האחרון מן הראשון).

Rashi writes that Mordechai mentioned in the gemara is the same Mordechai from the time of achashveiros, who was also called פתחיה in the mishna in shekalim and בלשן in nechemia. Tosafos says that it would be strange to suggest that he lived so long and therefore writes that people who were appointed to leadership due to their knowledge and intellect were named after Mordechai. The Ya'avetz supports Rashi - Is it so strange to say that yiras hashem increases lifespan and posits that in the generation of the שיורי בית ראשון, those who remained from the first beis hamikdash, this wasn't such an anomaly.

It seems to me that the biggest problem with suggesting that it was the same Mordechai is that we usually assume that by the time of the chanuka story there were no nevi'im left around. It certainly seems this way from Rashi in Ta'anis 28b who explains that Hallel on chanuka is called a d'oraysa because it was included in the original takana of the nevi'im (mentioned in arvei pesachim) to say hallel every time the Jews are saved from danger. Rashi seems to be okay with takanas nevi'im being called d'oraysa but is troubled that there were no nevi'im at the time of chanuka. To answer this Rashi explains that the framework of saying hallel on being saved from and existential threat to the nation was instituted hundreds or even thousands of years before the chanuka story - just that the chachamim at the time considered this the miracle of chanuka to fit that framework. Yet, we know that Mordechai was from the list of 48 Nevi'im as rashi writes in megillah and together with Esther wrote the Megillah.

Menachos 64a - Intent vs. Action

2011-05-11T13:40:00.000-07:00

The gemara raises a question if one would shecht two animals for a korban on shabbos when only one is needed and then find a weakness in the korban that makes it inferior (albeit still kasher) which retroactively entitles the shechting of the second one (since the gemara concluded that due to הקריבהו נא לפחתך one is allowed to shecht a better animal even if the first was acceptable), is this a violation. Conceptually, it is a situation where one intended to violate a prohibition (yet it is accidental as rashi explains because they thought it was permitted and were mistaken), and in the end did not violate the prohibition - do we focus on the intent rendering this a violation or on the action which was ultimately permitted. The gemara says that this is dependent on the machlokes Rabba and Rava where one would throw in a net intending to catch fish, and draw up in the net a drowning child together with the fish. The concept is the same, the action was permitted but the intent was to do something forbidden.

In analyzing the case of the net to catch fish, the gemara indicates that the machlokes is because ultimately fish were caught and a child was also saved. Had the child not been saved, all would obviously agree that he is chayev for trapping fish. The implication is also that had he only saved the child and not succeeded in capturing the fish, all would agree that he is exempt. Meaning, the only reason for Rava to say he is chayev is because ultimately he did an issur of catching the fish. This raises a fundamental question - How is this comparable to the case of the korban where at the end it was realized that the second animal that was shechted was permitted to be slaughtered since the first wasn't ideal? How can the gemara compare the case of the animal where he ultimately didn't do an issur on the shechting of the second, to the case of the trap where he did an issur of catching fish?

The Shita MiKubetzes raises the same question but from another perspective. If one intends to eat non-kosher and "accidentally" eats kosher, he is obviously not chayev since he didn't violate any prohibition. How can Rava consider the person chayev for shechting the second animal? The Shita answers that when one ultimately ate kosher there was no violation of anything, but here he should not have shechted the second since the first was kasher and he couldn't be sure that the second would be any better than the first. With this the Shita explains the connection to drawing the child together with fish in the trap - we consider it to be an issur since his intent was to catch fish and he actually caught fish which is assur, even though the same action for the purpose of saving the child is permissible.

The comparison only makes sense if we assume that the first animal shechted was acceptable but not ideal (had the information been known, it would be permitted to shecht the second). However, when the Rambam codifies this halacha (Shgagos 2:15) he writes that the first animal shechted was found to be a treifa, rendering it completely invalid. According to the Rambam, the act of shechting the second was completely permissible and no prohibition was violated at all. This should be comparable to one he ate kosher thinking it was treif, or spreading a trap intended for fish and rescuing a drowning child (and no fish). According to the Rambam's approach the gemara seems inconsistent in the comparison and we have no understanding of Rava's opinion who holds that you are chayev (Rambam paskens patur like Rabba)?

The Chazon Ish (kodshim, menachos 42:18) explains that the question of the shita mikubetzes about eating kosher when intending to eat non-kosher is not related to this discussion at all. When one does a permitted act, it is irrelevant that his intent was for a forbidden act. But, in the gemara's cases he is not doing a permitted act, he is doing a forbidden act of trapping or slaughtering on shabbos, in a situation where he is entitled to "push off" shabbos (perhaps this is based on the Rambam's opinion that shabbos is דחויה for pikuach nefesh and not הותרה). The Rashash similarly asks from many sources where we see that one is not held responsible for a thought to do an aveira and takes the same approach as the chazon ish - the only point of dispute is when one does an act that is technically an aveira but permitted for a mitzvah purpose. The machlokes between Rabba and Rava is whether the right to do a forbidden act to save a life or for avoda in the mikdash is only when the intent is for that mitzvah. Rava holds that if one isn't intending for the act of mitzvah i.e. saving a life or shechting for the purpose of having a better animal, there is no right to push off shabbos, and he is chayev. Rabba holds that the focus is on the action, not his intent and since the action he did is completely justified, he is not liable. Based on this approach, the fact that the Rambam describes a case where the first animal was a treifa, doesn't change the comparison because the bottom line is that if we follow action it is permitted, yet without intent for the permitted action we consider the slaughtering or the trapping to be a violation of shabbos.

Menachos 63b - Kohein Serving as Agent for Waving

2011-05-10T10:50:00.000-07:00

The D'var Avrohom (2:1:4) introduces an interesting sevara. He is discussing the machlokes between the shach (ohr zarua) and darkei moshe whether a father is able to appoint someone as his agent to do mila. The Ohr Zarua and Shach hold that there is no concept of shlichus, rather if the father can't do it himself he has no choice but to forfeit the mitzvah and allow someone else to do it. The D'var Avrohom explains that the concept of shlichus only applies when the mitzvah is only on the sender but not on the agent. The action of the agent can only be attributed back to the sender when the action is not needed by the agent himself for his own mitzvah. However, anytime the agent also has a mitzvah, he cannot be considered to be doing the shlichus of the mi'shalei'ach. A theoretical example would be that even if we would allow shlichus by mitzvas that are incumbent on the individual i.e. tefillin, we wouldn't be able to consider shimon's putting on tefllin as a shaliach of reuven to be as if reuven himself put on tefillin because shimon has his own mitzvah to put on tefillin so the action is grabbed by his own mitzvah and isn't associated with reuven. Therefore, the Shach holds that when the father forfeits his mitzvah of mila either because he can't do it or because he chooses not to, the mitzvah is incumbent upon everyone (the chiyuv on beis din in this context means any Jew who is able to do it). Since the mohel is going to be doing it for his own mitzvah, the action cannot be attributed to being done as a shaliach of the father.

It seems to me that our gemara clearly rejects the sevara of the d'var avrohom. The gemara says that when a korban is sent from overseas the kohein does the waving for the person. The gemara isn't clear whether it means that the kohein does it instead of the person, or actually does it as a shaliach of the person to assist the sender in their obligation of waving. However, Rashi on 61b clearly writes that when a woman or goy send a korban the kohein serves as their "shaliach" to wave it for them (even for semicha we would have made the kohein their agent if not for a special passuk excluding the ability to appoint a shaliach for semicha). This seems to be the gemara's intent also when the korban is sent from overseas - the kohein does tenufa as the shaliach of the sender. Now, the gemara on the top of 61b quoted a contradiction in pesukim whether the kohein does tenufa or the owner does tenufa, and concludes that they do it together since there is a mitzvah on both of them. We see here that even though the mitzvah of tenufa is an obligation on the kohein himself, he cans still serve as an agent of the owner to do semicha for them. This seems to be a strong proof against the sevara of the d'var avrohom who says that when the agent (kohein in this case) has his own obligation, he cannot be an agent of someone else because the action is used for his own obligation and cannot be used for the mi'shaleiach.

Menachos 62a - Waving and Shaking the Lulav

2011-05-09T14:31:00.000-07:00

The gemara says that the waving of שתי הלחם together with the two sheep is done in all 6 directions, to symbolize holding back bad winds and dew. Rabba comments that this is the same method of waving that is used by the lulav. Tosafos suggests that this style of waving only applies to the שתי הלחם and lulav which are in some way connected to agricultural needs, but not to the waving of the other menachos. Tosafos quoting Aruch raises a question whether we requirement of the Yerushalmi to wave 3 times in each direction requires outward and inward three times (totaling 6 movements in each direction) or outward, inward and outward (3 movements total). The Aruch cites other places where the gemara leaves this type of issue as a question and therefore concludes - ולא איפשיט, וכיון דלא איפשיט עבדינן לחומרא שלש פעמים בכל אחד ואחד. The Aruch seems to assume that the safeik would require us to be machmir. It is not clear why this would be the case. Even if we consider the concept of waving to be d'oraysa, the gemara says that it is only שיירי מצוה and not essential to the mitzvah. Generally, the concept of ספק דאורייתא לחומרא applies when there is a chance that one did not do the mitzvah, but not when there is a chance that one didn't do the mitzvah in it's most ideal way. Why would we apply the concept of ספק לחומרא to something which is only שיירי מצוה? Perhaps we can derive from here that the concept of ספק דאורייתא לחומרא is not just to be sure that you fulfilled the mitzvah d'oraysa. Rather, even on a kiyum mitzvah of the Torah we would say that mi'safeik one should be machmir to ensure that the mitzvah is fulfilled.

On another point - our minhag is to wave 3 times in each direction. R. Elazar Moshe Horowitz (pinsk) points out that the bavli which demands waving the lulav in all directions doesn't mention 3 times, and the yerushalmi which mentions 3 times doesn't demand in all directions. Therefore, there is no source for the minhag to wave the lulav 3 times in each direction (as we do). Even if we assume that the Bavli and Yerushalmi are in agreement with each other, it would be sufficient to wave 3 times in one directions and then one waving in each direction.

Menachos 61b - Touching without chiba

2011-05-08T16:13:00.000-07:00

The Shulchan Aruch (even ha'ezer 20:1) writes that one who does chibuk v'nishuk with any of the arayos and enjoys the kiruv bassar, receives malkus. This is the language of the Rambam who holds that the issur to touch any of the arayos is an issur d'oraysa provided that there is hana'ah from the kiruv ba'sar. The Beish Shmuel (1) says that the Ramban holds that it is only an issur d'rabonon. The Beis Shmuel continues that the Ramaban writes in a teshuva that even when the touching isn't derech chiba (which seems to mean that there is not hana'ah of kiruv bassar), the same machlokes would apply - Rambam would hold it's d'oraysa and ramban will hold that it is d'rabonon. Although the Shach (y.d. 195) holds that even according to the Rambam the issur d'oraysa is only derech chiba, the Beis Shmuel disagrees and holds that according to the Rambam there is an issur d'oraysa even not derech chiba. The achronim (sidrei tahara, kreisi u'pleisi) reject the Beis Shmuel and hold that even according to the Rambam it is only an issur torah when done derech chiba. R. Moshe (Igros Moshe 1:56) mentions that some are lenient to shake hands with women since it is assumed not to be derech chiba, based on the shach who understands that even according to the Rambam it would only be an issur d'rabbonon and perhaps mutar to avoid embarrassment. However, R. Moshe falls short of actually being matir shaking hands with women.

Tosafos quotes a Yerushalmi in the context of the waiving that implies that there is not even a real issur d'rabonon when one touches an ervah in a non-chiba way. Tosafos holds that the standard method of tenufa with the kohein placing his hands "under" the hands of the owner, doesn't necessitate touching because the owner holds the upper part of the vessel and the kohein holds it from the bottom. Tosafos then cites a yerushalmi that implies that the kohein literally puts his hand underneath the hand of the owner. In the context of Minchas Sotah the yerushalmi asks how the korban mincha is waved - ואין הדבר מכוער - isn't it repulsive? The yerushalmi answers that it is done using a cloth, which is rejected because it would create a chatzitza. The yerushalmi suggests that it is done by an older kohein who doesn't have a strong yetzer hora, and then concludes that even if done by a young kohein it is permitted since there is no yetzer horah at that time. Now, if we assume like the beis shmuel's understanding of the Rambam that touching even without hana'ah (not derech chiba) would be an issur d'oraysa, why does the yerushalmi ask "isn't it repulsive?", it should ask using a stronger language, isn't it an issur d'oraysa. Furthermore, how can we permit an older kohein to do it? Where do we find that an older kohein who doesn't have a yetzer horah has less of an issur d'oraysa. It seems clear that there is no issur d'oraysa, and seems that there isn't even a real issur d'rabonon, just that it is repulsive to do an act in the beis hamikdash that would be an issur if one had intent for pleasure.

However, according to Tosafos conclusion that perhaps the Yerushalmi is only addressing inadvertent touching because the kohein is not deliberately touching her (he is merely putting his hands under the vessel and will sometimes accidentally touch her), there would be no proof from the yerushalmi. Perhaps the yerushalmi is only saying that inadvertent touching would be מכוער, but intentional touching even not derech chiba could be an issur d'oraysa.

Menachos 57b - When is it considered baked?

2011-05-04T15:34:00.000-07:00

The gemara says that if dry measurements aren't able to give kedushas ha'guf, then the lechem ha'panim couldn't possibly become chometz after it was already kedushas ha'guf. Tosafos asks, perhaps after being baked in the oven to the point of נקרמו פניה - browning on the face of it, the oven can give it kedusha, and if it is then removed it is chometz? Tosafos says that we derive from here that the shiur of נקרמו פניה is considered fully baked and can no longer turn to chometz. Tosafos says that this would be a good indication for matza on pesach being fully baked (presumably this shiur only makes sense at a temperature that is suitable for baking it properly on the inside, but not if the matzah is thick and the oven is very hot so that it will just burn on the outside).

The Shulchan Aruch (461:3) that the shiur to determine that matzah has been fully baked is that אין חוטין נמשכין ממנה - no strings pull when it is broken. The Rama warns that because of this, it shouldn't be removed from the oven early even if it will immediately be returned. The M.B. explains that since it has heated up, if it is removed while still having חוטין נמשכין, it can turn into chametz very quickly. However, if it was removed and immediately returned to the oven, it can be used on pesach but not for the mitzvah of matzah on the first night (m.b. and sha'ar hatziyun 26) - we assume that it is not chometz but isn't considered to be שמורה - it isn't watched from being chometz.

The Sharei Teshuva (also m.b.) cites the nodeh b'yehuda (tinyana 80) who explains that since נקרמו פניה and אין חוטין נמשכין are the same shiur, if one is unsure about one they can use the other to determine. The N.B. says that if the matzah has already cooled זמן מה - for some time, so that חוטין נמשכין wouldn't be a good test - כי בדיקה זו לא שייכה אחר שכבר שהתה זמן מה אחר שמוציאה מן התנור ונצטננה, then one can check for נקרמו פניה to be matir it. However, if it fails both tests, the biur halacha explains that after a shiur mil it is considered definite chometz, not like the magen avrohom who is lenient bidieved.

Regarding the test of חוטין נמשכין, the Mishna Berura (14) says that it only works while warm, not after it cools, citing the Nodeh B'yehuda as his source. The Chazon Ish explains that the N.B. implies that if it is determined to be אין חוטין נמשכים right after cooling it is fine. The N.B. only says that it can't be checked much afterward, but simply cooling doesn't prevent the test of חוטין נמשכין.

Menachos 56b - 57a - Creating Chometz Passively

2011-05-04T13:17:00.000-07:00

The Rambam in Hilchos Chometz U'Matza (1:3) says that if one would acquire chometz or make chometz on pesach they would receive malkus since it is considered an active violation of בל יראה ובל ימצא. When learning this Rambam over Pesach, I was troubled by the assumption that one can actively make chometz. It seems that chimutz is a chemical process that occurs by itself, how can one violate the making of chometz by doing an action?

R. Yakov Emded (sheilas ya'avetz, 1:16 - end of teshuva) raises this question on the Rambam. Why would this be considered doing an action? Even if one were to add yeast, it doesn't turn into chometz immediately upon the adding of yeast! This should be similar to a situation of סוף חמה לבא which is considered a grama, not a direct action? He suggests that perhaps the Rambam is speaking of one who causes the chimutz to occur through the heat of his hands, which would be considered an action.

In light of the gemara today, it seems that the Rambam could be understood. The gemara says that by placing yeast on dough and waiting until the chimutz occurs by itself, one would be chayev similar to roasting meat on shabbos where the cooking occurs by itself. The implication of the gemara is that one would even be chayev malkus. The Rambam (hilchos ma'aseh korbanos 12:16) writes exactly that - הניח שאור ע"ג העיסה והלך וישב לו ונתחמצה מאליה לוקה שהנחת השאור הוא המעשה

The Rambam understands that the chiddush of Rav Ami is not merely that one is in violation of baking the korban mincha as chometz, but that it is considered an action worthy of malkus similar to the shabbos violations. The act for which you are chayev is the placing of the yeast on the dough which will inevitably cause the dough to rise. This is considered an action worthy of malkus. Therefore, the Rambam in chometz u'matza who talks about malkus for creating chometz on pesach would also be speaking about placing yeast on the dough. But, if one were to just mix flour and water and wait until it rises, the gemara seems to hold that it wouldn't be considered a significant enough of an action to be chayev malkus for לא תאפה חמץ or בל יראה.

Menachos 56b - Placing a Mum by in kodshim by Grama

2011-05-03T15:18:00.000-07:00

The gemara explains that the machlokes between R. Meir and Rabbonon about blood letting a sick kodesh animal is whether one is allowed to put a mum in a hekdesh animal that already has a mum. R. Meir darshen from כל מום לא יהיה בו, that it's even forbidden to put a mum in a ba'al mum, whereas the Rabbonon darshen תמים יהיה לרצון that it is only forbidden m'doraysa to put a mum in an animal that is complete. The gemara says that the Rabbonon darshen the pasuk of כל מום to include a case of grama - one cannot put food on the ear of kodesh animal so that it will be bitten off by a predator thereby causing a mum. Although grama is normally permitted, in this case it will be an issur d'oraysa.

The Minchas Chinuch (287) wonders why the Rambam doesn't explicitly write that causing a mum even indirectly would constitute an issur d'oraysa? The Minchas Chinuch suggests that the Rambam holds like R. Meir that placing a mum in a animal that already has a mum is an issur d'oraysa (he understands this from the Rambam in hilchos bechoros 2:13 who says that when one blood lets a sick animal they can't intend to make a mum, implying that if they would definitely be making a mum it would be assur). Yet, the Rambam holds that there is no malkus (as he writes in hilchos issurei mizbeiach 1:8 since it is only learned from a ribuy of כל). Based on the approach that the Rambam paskens like R. Meir, the Minchas Chinuch suggests that the pasuk of כל מום isn't available to teach grama, therefore the Rambam holds that causing a mum is only an issur d'rabonon, not d'oraysa.

The Minchas Chinuch suggests that even according to Tosafos who paskens like the chachamim therefore holding that grama is assur m'doraysa, may still concur that one would not receive malkus because "we never find that one is chayev malkus for a grama". The Minchas Chinuch seems to understand that the issur is violated by the mum being done to the animal, therefore the placing of food on the ear is just "causing" the violation of an issur. However, it is possible that the gezeiras hakasuv of כל מום which teaches that grama is assur, is essentially saying that the issur is not in the result (i.e. the mum), but rather the issur is to do the action that will likely yield the resule (i.e. placing food on the animals ear). If we assume that the issur is violated immediately, just that it is dependent on the mum being done in the end, it would be similar to baking on shabbos where the placing the bread in the oven is an act worthy of malkus (even though it is dependent on the dough getting baked).

Menachos 54b - Kezayis Shrinking and Growing

2011-05-02T15:04:00.000-07:00

The gemara discusses the halacha when one would have a kezayis of issur or tu'mah (which the gemara assumes follows the same rules, to the exclusion of terumah and ma'aser) which shrinks to less than a kezayis and then inflates once again. The conclusion of the gemara is that if one eats issur which begins as a kezayis and then shrinks to less than a kezayis, they don't get malkus since they didn't consume a kezayis. If one eats issur which begins as less than a kezayis and grows to more than a kezayis, they also would not receive malkus. To be chayev for eating a complete shiur of a kezayis it must begin as a kezayis AND end as a kesayis. There is a machlokes when it shrinks and then swells once again to more than a kezayis, and the conclusion is that we don't apply the concept of דחוי to issurim as we do to mitzvos - therefore one who eats it after it swells back to it's original size of a kezayis would receive malkus.

The Rambam הלכות מאכלות אסורות פרק י"ד הל' ד writes:

כזית חלב או נבילה או פיגול ונותר וכיוצא בהן, שהניחו בחמה ונתמעט--האוכלו פטור; חזר והניחו בגשמים ונתפח, חייבין עליו כרת או מלקות. היה פחות מכזית בתחילה, ונתפח ועמד על כזית--אסור, ואין לוקין עליו

The Rambam seems to simply pasken like the conclusion of the gemara. However, the last statement of the Rambam seems strange - היה פחות מכזית בתחילה, ונתפח ועמד על כזית--אסור, ואין לוקין עליו

It seems that the reason it would be assur is because one has eaten a chatzi shiur. The Roghotchover (Tzafnas paneiach) asks why does the Rambam write that if the chatzi kezayis swells to be larger then a kezayis there is an issur of chatzi shiur, but no malkus since even if it doesn't swell that is the din? The simple answer to the question is that after the Rambam teaches that for swelling back to a kezayis it is restored to it's original state and is considered a kezayis, the Rambam has to write that if it never had a shiur of kezayis, then swelling would not give it a shiur of a kezayis. But, if the chiddush was simply to teach that there is no malkus then why would the rambam have to preface that it's assur - of course it is assur as chatzi shiur is always assur?

Menachos 54b - Taking Teruma by Estimation

2011-05-01T17:35:00.000-07:00

The gemara discusses whether teruma and ma'asar of dried fruits should be measured based on their present size or on their larger size when they were fresh. The gemara concludes that by Terumah gedola it doesn't really matter because there is no minimum or maximum shiur according to the Torah. However, for Terumas ma'asar which the Torah calls מעשר מן המעשר, the implication is that it must be exactly 10%. Yet, even by terumas ma'aser R. Elazar Ben Gomel says that it is compared to Teruma gedola which can be taken by estimation. Tosafos explains that according to R. Elazar ben gomel the "ma'aser" which implies 10% is a minimum but one is allowed to intentionally increase the amount. Tosafos even raises the possibility that the Rabbonon would agree to R. Elazar Ben Gomel that one may take ma'aser by over estimating, they only argue whether it would be a mitzvah to do so. According to this approach, tosafos explains that the Rabbonon would permit an intentional generous estimation, but wouldn't allow an intentional increase, whereas R. Elazar Ben gomel would hold that one can always intentionally increase even if they realize it is more than 10%.

The Mishna in Avos (1:16) says - ואל תרבה לעשר אומדות. Tosafos understands that this mishna cannot confrom with R. elazar ben gomel because he would allow an intentional increase by ma'aser just as he allows for it by terumas ma'aser, for the same reason that ma'aser is also compared to teruma. However, the Tosafos Yom Tov in avos quotes the maharal that the mishna actually goes with R. elazar ben gomel because the mishna says אל תרבה, meaning that even though one is allowed to take ma'aser by estimation, he should do so as regular practice. This seems to conform with Tosafos that R. elazar ben gomel would allow over estimating even by ma'aser, but would seem to disagree with Tosafos who understands that according to R. elazar ben gomel it is a mitzvah to increase.

Menachos 40b - Tzitzis at Night

2011-04-17T15:03:00.001-07:00

Rav Zeira says that the reason for the Rabbonon uprooting the mitzvah of tzitzis on a linen garment is because it would lead to a violation of shatnez on a כסות לילה. Rashi explains that the concern is that one will wear the linen garment with his wool ticheiles even at night when there is no mitzvah of tzitzis thereby violating the prohibition of wearing kelaim even in the absence of a mitzvah of tzitzis. Rashi seems to hold like the opinion of the Rambam that everything depends on actual day and night. All garments are obligated in tzitzis by day and are exempt at night. However, Tosafos (d.h. mi'shum) says in the name of Rabbeinu Tam that the issue isn't dependent on actual day and night, rather a day garment is obligated in tzitzis even at night, whereas a night garment is exempt from tzitzis even during the day. Tosafos explains that even according to Rabbeinu Tam we regard the mitzvah of tzitzis as a time bound mitzvah from which women are exempt because ultimately the time is responsible for determining whether this particular garment is obligated in tzitzis. According to Rabbeinu Tam who considers everything to be dependent on the garment, there is no concern that one will wear a day garment of linen and ticheiles even at night, because according to R"T a day garment at night is obligated in tzitzis. The concern has to be that if we allow one to put ticheiles on a linen day garment, they will also come to put it on a linen night time garment.

Tosafos (d.h. ticheiles) writes that a linen garment with ticheiles can be worn even at a time and even by a person that is not fulfilling a mitzvah (such as a woman). Tosafos here seems to understand that a daytime garment is exempt from tzitzis at night, like rashi and not rabbeinu tam, yet when worn at night there is no violation of kelayim (against rashi).

The Sha'agas Aryeh (siman 30) asks on Rabbeinu Tam from the gemara in brachos which says that in ma'arava they didn't say the entire parsha of tzitzis at night (only the beginning and end) because there is no mitzvah of tzitzis at night. The Sha'agas Aryeh asks that the mitzvah of tzitzis applies by night as it does by day so long as it is a day garment, so we should be saying the parsha of tzitzis at night? One of the commentaries (printed in the back of the gemara) answers that since night garments are exempt, there is a precedent for the parsha of tzitzis being skipped at night - similar to what rabbeinu tam himself says to justify how it is a time bound mitzvah.

Menachos 35b - Hesech HaDa'as in Tefillin

2011-04-13T15:14:00.000-07:00

The gemara learns out that one is obligated to continuously touch their tefillin while wearing them to avoid a "hesech ha'da'as", from the tzitz. The gemara seems to make a real kal v'chomer and regards this as a din d'oraysa. The Shita (5) asks, how then is one allowed to daven or read shema while wearing tefillin, since by concentrating on the davening they will inevitably not be concentrating on the tefillin? He answers that in truth it is a violation of hesech ha'da'as from tefillin, but it is permitted based on the concept of עוסק במצוה פטור מן המצוה. Since he is involved in the mitzvah of concentrating on the davening, he is exempt from the mitzvah to concentrate on the tefillin. The application of עוסק במצוה פטור מן המצוה assumes that the prohibition of having a hesech ha'da'as from tefillin is an outgrowth of a positive mitzvah to concentrate on the tefillin, and is therefore regarded as a mitzvah rather than an issur. The concept of עוסק במצוה פטור מן המצוה would only entitle one to forgo a mitzvah, but not to violate an issur.

The Biur Halacha (44:1) quotes the pri megadim who says that even during davening one's mind should be on the tefillin and not entirely focused on the davening. However, the biur halacha says that the Ari z"l always had his mind on his tefillin even during davening, except during shemoneh esrei and learning Torah, implying that during shemoneh esrei one doesn't need to have their mind on the tefillin. The Biur Halacha quotes a fascinating Ohr Zarua -

וצריך אדם כשהוא לבוש תפילין לזכור שתפילין עליו ולא להסיח דעתו מהם, שלא יישן בהם ולא יפיח בהם, כי מחמת שזוכר שנושא שם הנכבד עליו אינו בא לידי קלות ראש ותופס יראת שמים בלבו וכו' הלכך כשאדם מכוין לבו בתפלתו או בהלכה שלו אין זה היסח הדעת דכל שכן דאיכא יראת השם

The Ohr Zaruah holds that the ikar mitzvah is not to be focused on the tefillin but rather to be focused on yir'as hashem. So long as a person is involved in service of Hashem, such as learning and davening, it isn't considered a hesech ha'da'as even though his mind is not at all on the tefillin. Based on this we don't need the concept of עוסק במצוה to justify how one can concentrate on their davening while wearing tefillin.

In truth, the violation of hesech ha'da'as isn't just a lack of concentration, but would only be violated if one is actively involved in light headed behavior. The Shulchan Aruch (o.c. 44:1) paskens that one may sleep a temporary sleep in their tefillin. The Mishna Berura (3) struggles with the issue of hesech ha'da'as and explains that the violation of hesech ha'da'as is only if one is involved in frivolous or silly behavior, but the absence of concentration on the tefillin doesn't constitute a hesech hada'as. When one is sleeping and has nothing whatsoever on their mind, it isn't considered a hesech hada'as. This approach seems to contradict our gemara. Why would one have to constantly touch tefillin to avoid a hesech hada'as, if the issue of hesech hada'as cannot be violated by a passive unawareness of the tefillin? The M.B. himself deals with this question and explains that we learn from the tzitz that it is forbidden to have a hesech ha'da'as, but the Rabbonon instituted as an ideal to constantly touch their tefillin to avoid one's mind from wandering and leading to improper thoughts. However, the violation is only if one would be actively thinking about other thoughts.

Menachos 34b - Tefillin of Rabbeinu Tam (Rav Moshe's reservation)

2011-04-11T15:26:00.001-07:00

The gemara discusses the proper order for the parshiyos of tefillin. Rashi interprets that the order is: קדש, והיה כי יביאך, שמע, והיה אם שמוע. But Rabbeinu Tam disagrees with rashi's reading of the gemara and says that it is קדש, והיה כי יביאך, והיה אם שמוע, שמע. It is interesting to note that even those who wear tefillin of Rabbeinu Tam aren't really fulfilling the mitzvah according to Rabbeinu Tam because Rabbeinu Tam brought in Tosafos 33a holds that the parshiyos have to be lying down in the tefillin, not standing upright, just like he holds by mezuza. It is clear from the gemara by mezuza that if it's placed upright according to Rabbeinu Tam, it is passul. Since Rabbeinu Tam assumes the same halacha should apply to tefillin, the placement of the parshiyos upright would invalidate the tefillin.

Rav Moshe (Igros Moshe O.C. 4:9) was asked by the Lubavitcher Rebbe why he doesn't wear Rabbeinu Tam tefillin. Rav Moshe responds very sharply that the minhag of sofrim in writing tefillin nowadays seems to be against the halacha in the way that they do the פתוחות and סתומות. Rav Moshe explains that when it comes to tefillin of Rashi who everyone agrees is the ikar, we have no choice but to wear what is available. But, regarding R"T, since it is only a chumra, he is only willing to wear it if it is done according to his standards.

To understand R. Moshe's reservation, it is necessary to understand the rules of פתוחות וסתומות. All agree that if the first paragraph would end in the middle of a line with space of 9 letters left and the next parsha begins at the start of the next line, it is a pesucha. All agree that if there is space of 9 letters left in the middle of a line separating between two parshiyos, that is a setuma. If the first parshah doesn't leave space of 9 letters and the second parsha begins at the start of a line but there is a blank line in between, the Rosh considers it a setuma and the Rambam considers it a pesucha. If the first parsha goes to the end of the line and the second begins with an indentation of 9 letters, that is setuma according to the rambam but pesucha according to the Rosh. The halacha is that the parsha of והיה אם שמוע needs to be a setuma. The Shulchan Aruch (32:36) explains that since we can't write them in the same paragraph, it is impossible to do a setuma according to everyone. Therefore, we have no choice but do pick the Rambam or the Rosh. We follow the Rambam and do a setuma by not leaving 9 letters of blank space after שמע and indenting with a space of 9 letters the parsha of והיה אם שמוע. The problem is that the sofrim leave 9 letters of blank space after the parsha of shema AND before והיה אם שמוע. Rav Moshe holds that leaving blank space at the end of the parsha preceeding והיה אם שמוע indicates an interest in making a pesucha, and then indenting at the beginning of והיה אם שמוע indicates a setuma which creates a תרתי דסתרי. He considers this to be a potential p'sul, and wasn't willing to wear Rabbeinu Tam tefillin unless they are makpid not to leave space of 9 letters at the end of the parsha that proceeds והיה אם שמוע (which according to Rabbeinu Tam is והיה כי יביאך).

R. Moshe writes that the source for this custom of leaving 9 letters both at the end of the previous parsha and before והיה אם שמוע comes from the kunteros acharon in shulchan aruch ha'rav where it says in parenthesis that the ba'al hatanya retracted from his original agreement to shulchan aruch and commanded the sofrim to leave space both at the end of the parsha proceeding והיה אם שמוע and at the beginning of והיה אם שמוע. Rav Moshe notes that there is no explanation for such an opinion and strongly rejects it. However, in the very first teshuva printed in the back of the shulchan aruch ha'rav he justifies this position by saying that according to the Rambam that indenting 9 letters in the parsha of והיה אם שמוע creates a setuma, it makes no difference whether in the previous parsha there was space of 9 letters left or not. Apparently, Rav Moshe didn't see this teshuva of the shulchan aruch ha'rav.