Zevachim 45a - Hilchisa L'mishicha

The gemara paskens like R. Yossi who says that both the machshava and action being done at the time of machshava need to be either outside, or both inside. The gemara wonders why we would pasken a halacha for the time of moshiach since nowadays we don't have a beis hamikdash and have no ability to bring korbanos (some meforshim ask that according to the Rambam korbanos can be brought nowadays because the kedusha of yerushalayim is there, so it is not a halacha for moshiach - here). The gemara concludes that the issues are certainly worthy of discussion - דרוש וקבל שכר, just that we don't need to pasken something which isn't relevant now. See Tosafos for a discussion when we consider something a halacha for moshiach - perhaps only when it is the result of doing something wrong i.e. pigul AND not relevant nowadays.

One way or the other, the discussion is definitely worthy of having - דרוש וקבל שכר. The Mitzpeh Eisan raises an interesting question from the gemara in Yoma 5b regarding how the kohein gadol would get dressed in the future, and the gemara comments מאי דהוה הוה - what was was, meaning that even the discussion isn't relevant nowadays. The gemara only considers the discussion relevant because it helps explain pesukim, but otherwise the gemara accepts that we don't need to discuss what isn't practical. Why doesn't the gemara say that we discuss even what isn't practical because דרוש וקבל שכר?

The Mitzpeh Eisan suggests that this concept of דרוש וקבל שכר only applies to korbanos where the learning about them atones as if we actually fulfilled them. But in other areas that aren't applicable nowadays such as the dressing of the kohanim, we wouldn't discuss it unless it is important for the understanding of pesukim. This idea is supported by rashi at the end of baba metzia 114b with the story of eliyahu hanavi in the cemetery who explains that 4 out of the 6 sedarim of mishnayos is practical - surprisingly listing zeraim among the 2 impractical, and kodshim among the practical since the study of it offers atonement. The difficulty with this approach is that the source of this concept is the gemara at the end of menachos 110a which says that those who study the "halachos" of the korbanos receive atonement as if they actually sacrificed them. It seems like this concept can only be achieved by learning kodshim as if it were halacha l'ma'aseh and knowing who it is we pasken like.

Shabbos 114a - Preparing From Yom Tov For Shabbos

R. Akiva Eiger in his comments on the Shulchan Aruch (302:Magen Avrohom 6) writes that one may prepare things on Yom Tov for Shabbos (provided that no melacha is being done) even without an eiruv tavshilin. Although Tosafos 113a writes that one may not fold their talis on shabbos for after shabbos, one may fold their tallis on yom tov which is erev shabbos for use on shabbos. R. Akiva Eiger explains where he derives this from. In the Mishna 113a there is a Machlokes between R. Yishmael and R. Akiva whether the left over korbanos of Y.T. can be burned on Shabbos. R. Yishmael holds that left over korbanos of Y.K. can be burned on Shabbos, but left over korbanos of Shabbos cannot be burned on Y.K. because shabbos has a higher kedusha than Y.K. The Mishna implies that it is for the same reason that R. Yishmael permits setting the beds on Y.K. for Shabbos, since Shabbos has more kedusha, but not the reverse. The rationale is that the prohibition to be טורח on Shabbos or Y.K. for afterward, doesn't apply when one is preparing on a day that has less kedusha for a day that has more kedusha. Whereas, R. Akiva holds that the kedusha of Shabbos is not greater than Y.K. so he forbids the left over korbanos from one to be burned on the other. Based on R. Akiva it would also be forbidden to do activities on Y.K. to prepare for Shabbos. Although we follow R. Akiva and forbid and preparation from Shabbos to Y.K., the Braisa 114a says that even R. Akiva admits that left over korbanos of Shabbos can be burned on Yom Tov, because there is no question that the kedusha of Shabbos is greater than Yom Tov. Therefore it should follow that one may make preparations on Yom Tov which falls on Friday to prepare for Shabbos. R. Akiva Eiger points out that the Eliyahu Rabba disagrees and holds that when Y.T. falls on a Friday, one can only do things from Y.T. to Shabbos if they have an eiruv tavshilin.

The M.B. 302:17 quotes this fundamental argument as to whether an eiruv tavshilin is necessary for preparations that don't involve melacha. R. Akiva Eiger would permit one to fold his talis on Y.T. for Shabbos, whereas the Eliyahu Rabba would only permit it if one had made an eiruv tavshilin. The Aruch Hashulchan 302:10-12 justifies the minhag to fold talisos even on Shabbos for after Shabbos based on Rashi and the Rambam who forbid מקפלין את הכלים ומציעין את המטות only because of a מתקן כלי issue since they were very meticulous about the creases, which doesn't apply to our talisos. He implies that acc. to Ra'avad 23:7 and Tosafos who imply that it is an issue of doing a טרחא for after shabbos, it would be assur. It seems to me that nowadays the folding is necessary to properly fit it into the bag so that the shul doesn't look messy and no one takes the talis, it isn't considered preparation for after shabbos and therefore permitted even according to Ra'avad and Tosafos.

Rashi 114a implies that according to R. Akiva we consider Shabbos and Y.K. to have equal levels of kedusha, which is why the left over korbanos of shabbos cannot be burned on Y.K. and visa versa. Also, that is why one cannot prepare from Y.K. to Shabbos, as the Mishna implies. However, in the braisa in Megilla 23a there is a machlokes R. Yishmael and R. Akiva regarding the number of aliyos on Shabbos and Yom Kippur. R. Yishmael holds 6 for Y.K. and 7 for Shabbos which is very in line with his approach here that the kedusha of Shabbos is greater. But R. Akiva holds 6 for Shabbos and 7 for Y.K. which implies that the kedusha of Y.K. is greater than Shabbos. Why then does R. Akiva hold that the left over korbanos of Y.K. cannot be burned on Shabbos, he should hold the exact opposite of R. Yishmael, that leftovers of Shabbos cannot be burned on Y.K. but leftovers of Y.K. can be burned on Shabbos? Also, why does Rashi write that according to R. Akiva the kedusha of Y.K. is like shabbos - רבי עקיבא היא דחשיב ליה יוה"כ כשבת, when in truth it is a higher level kedusha than Shabbos? The Turei Even in Megillah wonders what advantage Y.K. has over Shabbos practically that would justify and extra aliya, and he suggests that it is due to the extra tefillah of ne'ilah. However, all the rationales offered by the gemara seem to be simanim that indicate a higher level of kedusha, so the extra aliya for Y.K. should also indicate an extra level of kedusha over Shabbos - וחזרא קושיין לדוכתיה וצ"ע.

Makos 19a - Kedusha of Eretz Yisroel and Beis HaMikdash

The gemara discusses the concept of the kedusha of the land and whether the original kedusha remains even after the destruction of the beis hamikdash. Simply learning our gemara according to rashi would lead to the conclusion that the kedusha of E.Y. and Yerushalayim/mikdash are completely tied to one another, and that we conclude קדושה ראשונה קדשה לשעתה ולא קדשה לעתיד לבא. Therefore, any halachos that are tied to E.Y. such as Teruma and Ma'aser and halachos that are tied to Yerushalyim such as the issur to bring korbanos on bamos and the ability to eat ma'aser sheini in yerushalayim, no longer apply. The continuation of tithing teruma and ma'aser would only be d'rabonon. However, Tosafos has difficulty with this girsa and argues on both assumtions. Tosafos holds that the discussions in the gemara regarding the kedusha of E.Y. are completely independent of those regarding the kedusha of Yerushalayim. In both places the phrase קדושה ראשונה קדשה לשעת ולא קדשה לעתיד לבא can be used, but means totally different things. Therefore, Tosafos holds that although we have other sources that indicate that the kedusha of E.Y. no longer exists m'doraysa regarding teruma and ma'aser, the kedusha of Yerushalaim was never lost and remains strong. The conclusion of our gemara is that the kedusha of Yerushalayim is still in tact, yet one cannot eat b'chor and ma'aser in Yerushalayim due to a technicality - The ability to eat a b'chor is tied to the ability to sprinkle the blood. So long as there is no altar on which to sprinkle the blood, the b'chor cannot be eaten, and the ma'aser sheini can also not be eaten.

The approach of Tosafos is necessary to explain the position of the Rambam. The Rambam (Hil. Beis HaBechira 6:14-16) explains the process of sanctifying the beis hamikdash and courtyard. Rambam writes that when Ezra returned he only brought 2 korban todos as a symbolic kiddush, but in actuality the beis hamikdash and Yerushalayim retained their original kedusha from the time of Shlomo HaMelech. Therefore the Rambam rules that korbanos can be brought in the makom of the mizbei'ach even in the absence of a beis hamikdash, and kodshim can be eaten (kodshei kodshim in the courtyard and kadshim kalim in Yerushalayim). Then the Rambam writes:

ולמה אני אומר במקדש וירושלים שקדושה ראשונה קדושתן לעתיד לבא ובקדושת שאר ארץ ישראל לענין שביעית ומעשרות וכיוצ"ב לא קדשה לעתיד לבוא? לפי שקדושת המקדש וירושלים מפני השכינה ושכינה אינה בטלה, והרי הוא אומר "והשמותי את מקדשכם" ואמרו חכמים אע"פ ששוממין בקדושתן הן עומדים. אבל חיוב הארץ בשביעית ובמעשרות אינו אלא מפני שהוא כבוש רבים וכיון שנלקחה הארץ מידיהם בטל הכבוש ונפטרה מן התורה מן המעשרות ומן השביעית שהרי אינה ארץ ישראל

The Rambam holds that the kedusha of E.Y. is the "kibbush" - Jewish control, therefore when it reverts back to the goyim, the kedusha is lost. But the kedusha of the mikdash and Yerushalayim is attributed to the shechina which never leaves (the rambam concludes by making a distinction between kibbush (capture) and chazaka (control), and writes that Ezra took control of E.Y. which restored its kedusha even after it was taken back by the goyim - this approach if very difficult - see kesef mishna).

The Ra'avad adamantly disagrees with the Rambam and assumes that since ma'aser sheini cannot be eaten, the kedusha of Yerushalayim and the mikdash must be gone, just as it is gone from the rest of E.Y. Furthermore, even the opinion who holds that E.Y. retains it's kedusha would admit that Yerushalayim and the mikdash lose their kedusha upon the destruction of the mikdash.

There is a very practical difference between the Rambam and Ra'avad. Is one allowed to walk into the place of the mikdash nowadays, while they still have tu'mas meis. According to the Ra'vad there wouldn't be any issur kareis, but according to the Rambam it would be an issur kareis (of course, the areas which only have status of machane leviyim, one can technically go even as a tamei meis, so long as they are don't have tu'mas keri).

The kesef mishna points out that the Ra'avad's question on the Rambam from mishnayos that say that ma'aser sheini has to rot and cannot be eaten in Yerushalayim, is a difficulty with the Rambam. However, the Mishneh L'melech explains that the Rambam in Ma'aser Sheini (chapter 2) indicates that he holds like Tosafos in our sugya, that for technical reasons of comparing ma'aser sheini to be'chor it cannot be eaten. But the kedusha of Yerushalayim is still intact. The Magen Avrohom (561:2) writes explicitly that the Rambam will hold like Tosafos in our sugya. Therefore, he concludes - דברי הרמב"ם שרירין וקימים והנכנס עתה למקום המקדש חייב כרת שכולנו טמאי מתים

It is for this reason that those who go up on the har habayis after going to the mikva and waiting for sunset to remove tu'mas keri, have to be confident that they are not overstepping the machaneh l'viya, because by walking into the machane shechina even nowadays would be an issur karies (since our Tosafos answers up the opinon of the Rambam, thus compels the magen avraham to pasken like the Rambam, not the Ra'avad).

To conclude, it is important to see the Chasam Sofer (Y.D. 233: second paragraph, 234 d.h. v'hinei) where he puts the Rambam and Ra'avad in perspective. The Chasam Sofer considers the discussion of whether E.Y. and Yerushalayim retain their kedusha regarding mitzvos, completely independent of the mitzvah to live in E.Y. and Yerushalayim. The mitzvah of living there is connected to their inherent kedusha and being a place of tefila even before the existence of the beis hamikdash. The chasam sofer suggests that according to those who hold that the kedusha for mitzvos is lost, would not even have the excuse that R. Chaim Kohen (Tosafos in Kesubos) offers to justify not living in E.Y. because it difficult to keep the mitzvos. Since the mitzvos aren't considered d'oraysa, the excuse is not applicable so the requirement to live in E.Y. and Yerushalayim is even stronger. He enforces this point by citing the famous Rambam in sefer HaMitzvos 153 who says that the ability of klal yisroel to establish the calendar and yomim tovim (even nowadays) is dependent on Jews living in E.Y. -

נראה מדבריו (רמב"ם) כי אילו ח"ו לא ישאר שום ישראל בארץ ישראל אפילו יהיה יושבים ישראל בחו"ל מקרי כליון אומה ח"ו אחר שאין לנו סמוכים ואי אפשר לקבוע חדשים ולעבר

The chasam sofer considers the Rambam's statement that if Jews wouldn't be in E.Y. it would qualify as a destruction of the nation, to be because of our inability to establish the calendar. However, it is possible that the Rambam means something even deeper. Perhaps the status of "klal yisroel" is dependent on the existence of Eretz Yisroel, therefore if E.Y. would be empty without any Jews living there, it would impact the status of "klal yisroel" and they would lose that title.

Beitza 30a - Doing Away With Gezeiros Chazal

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

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

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

Yoma 70a - Rolling the Sefer Torah B'tzibur

The gemara explains that the first two parshiyos that were read by the kohen gadol, since they were in close proximity to one another, it can be rolled from achrei mos to emor. But the third parsha which was in parshas Pinchos could not be rolled to and therefore he must read it by heart. The gemara explains that rolling wasn't an option because it was a lack of kavod tzibbur, as rashi explains, having everyone sit silently until they reach the spot. The gemara explains that although generally we take out multiple sifrei torah, that is only when each sefer torah is read from by a different person so that there was no insult to the original sefer torah and no issue of causing an extra bracha (since each person is going to anyway make their own bracha), but this was not an option for the Kohein Gadol's reading (it would be a problem of p'gam and causing an unnecessary bracha).

The Tosafos Yeshanim points out that although reading by heart is not a perfect solution because it is a violation of reading the written torah orally, it is the lesser of the two evils. The Tosafos Yeshanim (in first answer) understands that the issue of reading written Torah by heart is only a מצוה מן המובחר, and is therefore trumped by kavod tzibbur.

It would seem from the gemara that on a shabbos rosh chodesh where we need to read from two separate places, we take out two sifrei torah rather than roll. If there is only one sefer Torah, it would be better for one to read the second section by heart rather than rolling the Torah and causing the tzibbur to wait. However, this is clearly not the minhag.

The Beis Yosef (144) writes that the hagahos mordechai and Ritva both say that it is better to disregard the kavod tzibbur, rather than disregard the takanas chachamim to read the inyana d'yoma of rosh chodesh (or 4 parshiyos). It is unclear how they would work this into the gemara which seems to say the opposite. Perhaps they would say that in the time of the gemara it wasn't set as an absolute takana to read the korbanos of mussaf from a sefer torah, but once it has become the overwhelming custom, it is like a takanas chachamim that overrides kavod hatzibbur.

The Rashba in a teshuva cited in the beis yosef was asked about the possibility of reading the second section from a chumash when there is only one sefer torah, rather than rolling. The Rashba answers and proves from our gemara that it is better to read from a chumash rather than roll, because even reading by heart is better than rolling. Clearly, the Rashba holds that reading from a chumash which avoids both the kavod tzibbur problem and the issue of reading the written torah by heart, is the best solution.

Yet, the Shulchan Aruch paskens like the Ritva that we roll rather than read from a chumash, and the Darkei Moshe agrees. The Magen Avrohom (7) asks this question on the Shulchan Aruch, that the gemara itself says that even if there is no alternative but to read by heart, we prefer that to the rolling of the Torah b'tzibbur. How does the pesak of the Shulchan Aruch fit with the gemara (The Magen Avrohom is apparently not content with saying that it only developed into a "takana" to read that section b'tzibbur, after the time of the gemara)? The Magen Avrohom writes that the concern of Kavod Tzibbur was only in the large group that was in the ezras nashim to hear the Kohein Gadol read from the Torah, it doesn't apply to the small groups in shul because מסתמא מוחלין על כבודם כדי לקיים קריאת המפטיר דשבת ור"ח ומפטיר דיו"ט דהוא תקנת הגאונים. The Magen Avrohom seems to hold that the takana alone wouldn't trump kavod tzibbur, but since there was a takana to read the inyana d'yoma from the sefer torah, we assume the tzibbur would be mochel on their honor.

The Nesiv Chaim (gilyon of shulchan aruch) explains the position of the hagahos mordechai. In the time of the gemara where the one getting the aliya read from the Torah it was impossible for the section to be read by heart because no one knew who would get that aliya (it was only possible for the kohen gadol who knew that he would be reading it to memorize it in advance). Since that was not a solution, the custom became to roll the torah b'tzibbur, which carries over into nowadays when there is a ba'al korei who can technically prepare it in advance since we also have a shortage of people who can read it by heart. Being that it became impossible to sustain the reading of the parsha by heart, the tzibbur is mochel on their kavod to allow the rolling. The difficulty with this approach is that it can still be read from chumashim as the Rashba suggests.

The Pri Chadash actually writes that the Shulchan Aruch following the Ritva and Hagahos Mordechai on only allowing the rolling since we can assume the tzibbur is mochel. They are not suggesting that it is a better solution to just reading from a chumash. Therefore he writes that if they want to read from a chumash rather than rolling the sefer torah, they can certainly do that.

A simple answer would have been that reading from a chumash is more of a lack of kavod tzibbur than rolling, therefore we roll rather than read from a chumash. The Pri Megadim rejects this answer because the reading from a chumash is only a lack of kavod tzibbur because they don't have a Torah (so we don't allow them to read from a chumash to make them feel bad and purchase a Torah - Beis Yosef 143), but in this case where there is a sefer torah, there is no lack of kavod tzibbur to allow the second reading to be done from a chumash.