Zevachim 72a - 73a - Kavua d'oraysa and d'rabonon

The gemara asks why we don't use bitul b'rov in the first case of the mishna when the animal that is assur b'hana'ah gets mixed with the others. The gemara answers that the animal is choshuv therefore too significant to be batul, either because the mishna holds that any davar sheb'minyan isn't batul, or because livestock is inherently significant and not batul. After the gemara establishes that the animal isn't batul b'rov, it continues to ask why we cant separate one by one from the group and bring them as korbanos. The gemara is understanding that after we establish that bitul b'rov doesn't apply to an important and significant item, we should still be permitted to separate one by one and bring them as korbanos each time relying on the statistical majority that the animal we are not sacrificing isn't the forbidden one. To that the gemara responds that it is considered "kavu'ah" so we aren't able to follow the rov. This seems to be a strange case of ka'vua! Normally kavuah applies to a situation where we have things that are established in their place such as kosher and non-kosher butcher shops, but it isn't clear how the concept of kavuah can apply here? The Chochmas Adam (binas adam, sha'ar kakavua 1) explains that the concept of kavuah on the torah level only applies to situations like stores where one buys meat from one of the stores and doesn't know if it was purchased from the 9 kosher or 1 treif. In that case the torah would consider it כמחצה על מחצה and we couldn't rely on rov. However, the kavua in our gemara is very different. In our gemara the gemara means to say that whenever chazal don't allow bitul to take place on an item due to it's significance, we treat the mixture as if it were kavuah. Meaning, not only do we disallow the concept of bitul b'rov on a significant item, but we treat the entire mixture as if is were kavuah and therefore don't even allow one to separate one by one and follow the statistical rov. The gemara continues to ask that we should be able to break the kavua status by sending the animals out and moving them from their established place, but even if we were to do that the Rabbonon were concerned that one may take an animal before moving them. It comes out that the Rabbonon create the concept of kavua on any mixture that contains an important issur on which we won't allow bitul. Once the Rabbonon consider it kavua, they make a second gezeira to be even more machmir than the kavua d'oraysa and we don't allow the kavuah to be broken by moving the animals around because they were concerned that one would take from it before doing that (Tosafos 73b d.h. ela, points out that from the fact that they make a gezeirah that you may come to take it before moving the animals while it is still kavuah, implies that if you were to take before moving the animals it would be d'oraysa. Tosafos rejects this and explains that even taking before moving them would only be d'raobonon). They weren't concerned about this by kavuah d'oryasa since the stores are recognizable in their place and there is no concern that if they permit the meat found in the street that one will come to permit meat that was bought from one of the stores.

Zevachim 71a - Following Rov against reality

The gilyon maharsha references the teshuvos yad eliyahu (eliyahu bar shmuel from lublin - 18th century) who discusses a very interesting question that is pertinent to splitting recovered losses when only part of the losses are recovered. For example in a situation like madoff where there were billions lost and millions recovered, how are those millions split. Is it split proportionately or is it split evenly? The situation that the Yad Eliyahu deals with is animal hides of Jews that were stolen and some of them were retrieved. Those who owned more claimed that they deserved a proportionate return, whereas those who owned less felt that it should be split evenly which could mean that the 10% owner will be fully compensated and the 50% owner would suffer an 80% loss on his investment.

The Mishna says that if a passul chatas gets mixed with kasher ones, they are all left to die. The gemara explains that they are presently kavua and we can't allow bitul b'rov, but discusses why there isn't a possibility of moving them so that we can allow bitul to take place. Tosafos at the end of d.h. afilu asks on the gemara in sanhedrin 79b that when we have someone who deserves a more lenient form of capital punishment who gets mixed up with those who deserve a stricter form, they are all given the more lenient form. Tosafos asks, why don't we say that the person who deserves the more lenient form is batul b'rov and everyone should get the stricter form? Tosafos answers a few different answers:

1. We don't follow rov to be machmir since we will anyway fulfill the mitzvah of carrying out capital punishment on everyone by giving them the lighter punishement.

2. We don't follow rov to do something that we know is not right. If we were to give everyone the stricter punishment, we would for sure be giving someone a stricter punishment that he deserves - דמשום רובא לא נעביד דבר שהוא שקר ודאי, דודאי יש אחד שאינו בר מיתה כלל לפי שלא נגמר דינו

3. At the moment they are considered kavuah and we can't force them to move so that we can follow rov to be machmir on them.

The Yad Eliyahu explains based on Tosafos second answer that we can't simply split proportionately. The rationale to split proportionately would be that we would follow a rov that says that these extra hides belong to Reuven since he owned more of the hides than Shimon. The only way we can follow rov is if the rov could tell us that ALL the hides belong to Reuven. However if Reuven lost 50 hides and 60 of them were retrieved, we couldn't use rov to say that they all belong to Reuven because that is simply not true. Therefore, we cant follow rov. Rather, on each and every hide we say that all the partners own equal shares in it, until the smaller partners are fully compensated and out of the picture so that the remaining hides would be split by the remaining partners. According to this approach, the smaller partners would suffer much less of a loss than the larger partners. But in truth, the Yad Eliyahu is not talking about partners. When there are partners then Reuven would own 60% of every hide retrieved whereas Shimon would only own 10% and they would split all the hides proportionately. The Yad Eliyahu is talking about a case when they aren't partners just that they all had hides stolen and it is unclear who the one's that were retrieved belong to. It is only in that case that we would say they split equally until the smaller partner is fully compensated and then the remaining partners would continue to split the remaining hides.

Zevachim 63a - Eating Kodshim in Heichal

The gemara says that if one would shecht a korban shlomim inside the heichal rather than in the courtyard, it would be valid. The gemara learns this out from the combination of the pasuk that says it should be shechted by the opening of the ohel mo'ed, implying that the ohel mo'ed would even be ideal, just that it can also be shechted by the opening of the ohel mo'ed, in conjunction with the logic of לא יהא טפל חמור מן העיקר - since it can be shechted at the opening of the ohel mo'ed, it can certainly be shechted in the ohlem mo'ed. The gemara asks that based on this approach, it should be obvious that when one is unable to eat kodshim in the courtyard, it can be eaten in the hei'chal (as rashi explains that we have a pasuk saying "in the courtyard of the ohel mo'ed and the logic of לא יהא טפל חמור מן העיקר indicating that the ohel mo'ed would be ideal). Why would R. Yochanan Ben Beseira require a pasuk to teach what seems obvious in sevara? The gemara answers that the logic of לא יהא טפל חמור מן העיקר only works for the shechita which is an avoda and is normal to be done in front of one's master, so the closer the better. But, eating which is not normal to do in front of one's master, the logic would not apply. Rashi explains that no only would the logic "not apply", it would apply in the opposite direction - making it prohibited to eat kodshim in the hei'chal. It is therefore necessary to have a special pasuk to teach that when it is impossible to eat kodshei kodshim in the courtyard because the goyim are bombing it, it can be eaten in the hei'chal.

The obvious question on this gemara is that if the pasuk of פתח אוהל מועד and the logic of לא יהא טפל חמור מן העיקר really apply, it should be ideal to shecht the korban in the ohel mo'ed. Why does R. Yochanan say that bidieved it is kasher, implying that it shouldn't be done lichat'chila? The Rambam (ma'aseh korbanos 5:4) also writes clearly that lichatchila it can be shechted anywhere in the courtyard, but shechting in the hei'chal is only bidieved. Why? It seems that the logic of לא יהא טפל חמור מן העיקר is only on the kashrus of the korban, but not on the action of shechting the korban. Meaning, that the gemara understands that the ideal place for the korban is as the pasuk describes by the opening of the ohel mo'ed in the courtyard, but regarding the kashrus of the korban if shechted elsewhere, it should certainly be kasher if it is shechted in the hei'chal.

Regarding the second halacha that kodshei kodshim can be eaten inside the hei'chal and is learned from a special pasuk - The Rambam (ma'aseh korbanos 10:3) writes - ואם נאכלו בהיכל נאכלו. The Rambam's language is very strange. Clearly the Rambam holds that lichatchila it cannot be eaten in the hei'chal because the case where the gemara permits eating in the hei'chal is only for extenuating circumstances when it absolutely cannot be eaten in the courtyard. The Rambam understands from this that the heter to eat in the hei'chal is only bi'dieved. However, this doesn't seem to make sense because the entire requirement to eat the meat is only lichatchila, but bidieved isn't me'akev! The Even Ha'azel (miluim in the back of kodshim 2, pg. 129b) in responding to R. Tzvi Pesach Frank who asked exactly this question writes that the Rambam seems to disagree with Tosafos in Pesachim 59 and holds that the eating of the meat by the kohanim is me'akev the atonement. Therefore, the Rambam writes ואם נאכלו בהיכל נאכלו, meaning that bidieved the mitzvah of eating is fulfilled even if the kohanim eat it in the heichal and the ba'alim would receive atonement. This approach is also not so me'duayak in the Rambam because he should have written ואם נאכלו בהיכל נתכפרו - that the ba'alim get ATONEMENT. The language of ואם נאכלו נאכלו implies that they aren't fulfilling any mitzvah, just that it is considered "eaten". But it isn't clear what nafka minah this would make!

Zevachim 62a - Measurements of Miz'beiach

The gemara asyas that in the second beis hamikdash they expanded the mizbei'ach, either for practical reasons or because they wanted to incorporate a plumbing system for the wine pouring. The gemara asks how they were able to add to the dimensions of the mizbei'ach, based on the pasuk of הכל בכתב מיד השם עליה שכיל כל מלאכות התבנית, which basically means that all the areas of kedusha and their measurements were taught to Dovid and couldn't be changed. The gemara answers that the area that they sanctified to contain the mizbei'ach that was taught to Dovid was 60 amos. Rashi explains that Shlomo didn't understand the drasha from the pasuk and therefore made the mizbei'ach smaller, but the b'nei ha'gola in the time of the second beis hamikdash darshened it and added on to the size of the miz'beiach. The gemara then explains that many aspects of the mizbei'ach were essential but the length width and height weren't essential and were able to be expanded and contracted as deemed necessary. Therefore, even when they added to the mizbei'ach they didn't take advantage of the entire area to make it as large as possible, because it wasn't necessary for them (it isn't clear to me why rashi has to say that Shlomo wasn't able to darshen the pasuk and didn't know that it was expandable up to 60 amos - why not just say that Shlomo felt that although it could be expanded, he didn't need to make it any larger).

Rashi in chumash (parshas teruma) writes on the pasuk 25:8 - וכן תעשו that in the future when the beis hamikdash would be built they would have to make the vessels similar to those of the mishkan. The Ramban asks on rashi that in divre hayamim 4:1 when it describes the copper mizbeiach made by Shlomo, it says that it was 20 amos by 20 amos, which didn't resemble the one made by Moshe (which was either 5x5 according to the simple reading, or 10x10 according to R. Yehuda 59b)? The Maharal doesn't understand why the Ramban asks this question on Rashi as if Rashi was saying on his own that וכן תעשו is לדורות for the vessels of the Beis HaMikdash. Rashi is sourced in the gemara in shavuos 14b. To answer the Ramban's question the Maharal says that the requirement of וכן תעשו - לדורות is only on movable items, but the mizbeiach which was attached to the ground like the mikdash iteself wasn't bount to this rule. Just as the actual structure of the mikdash and courtyards were very different in dimensions form that of the mishkan, so was the mizbeiach. In truth, rashi never mentions the mizbeiach, only the shulchan, menorah, kiyor.... The Mizrachi answers that the requirement of וכן תעשו is not on the dimensions, rather on the shape and general form.

Zevachim 57b - Harchaka from Aveira and Alos HaShachar

The mishnayos throughout the perek said that for kodshei kodshim and some types of kodshim kalim (Todah and Ayil Nazir) that are eaten for a day and a night, the Rabbonon made a harchaka that one must stop eating by chatzos as a preventative measure to avoid eating after dawn (as rashi quotes 53a from the first mishna in brachos). However, by korban shlomim and other korbanos that can be eaten for 2 days (and the night in between) we don't find the mishna mentioning any harchaka implying that it can be eaten until nightfall.

Tosafos (57b at the end of the perek) writes that when the end time is the beginning of the night it isn't necessary to make a harchaka because the onset of night is obvious and clearly discernible. But when the end time is the onset of day, which is alos hashachar - dawn, it isn't quite as obvious for the average person to discern and therefore necessary to make a harchaka d'rabonon that it couldn't be eaten after chatzos.

Tosafos considers the onset of night to be easily discernible. If it were dependent on sunset, then this would be obvious. But even Tosafos 56a who holds that the blood of the korban becomes passul at sunset, writes explicitly that the end time for eating korban shlomim is tzeis hakochavim - when the stars come out. Therefore, Tosafos considers it easier to recognize 3 average stars coming out and unnecessary to make a harchaka, than it is to recognize dawn. Apparently, the light of dawn is so slight that the average person cannot recognize it. This would be consistent with Rashi in Megilla who writes that the Rabbonon said that every daytime mitzvah should be performed after sunrise, not after dawn, since it is easy to confuse post-dawn with pre-dawn.

Zevachim 56a - Sprinkling Blood After Sunset

The gemara says how do we know that the blood of a korban becomes invalid if it isn't sprinkled on the miz'beiach before "shekiah", and learns out from a pasuk that the blood must be sprinkled the same day that the korban is sacrificed. Rashi explains that we need this special source for a case where the blood was left on top of the miz'beiach to teach that it can become invalid even if לינה occurred at the top of the miz'beiach. Rashi understands that for a typical case where the blood isn't sprinkled the same day, we don't need a special source to invalidate it, since sprinkling can't take place at night and the next day it would certainly be passul like the parts of the animal that are burned on the miz'beiach. Tosafos disagrees with Rashi and says that we need this pasuk to teach that the blood becomes invalid to be sprinkled at sunset, even before צאת הכוכבים which is normally what we consider night. Tosafos explains that even after sunset would still fulfill the requirement of sprinkling by day, we therefore need this pasuk to invalidate any sprinkling after sunset.

In Brachos 26a the Rabbonon consider the time for mincha to be until "erev". Rabbeinu Yona explains that the term "erev" in that context doesn't refer to צאת הכוכבים, rather it refers to sunset. Rabbeinu Yona points to our gemara where the term שקיעת החמה refers to actual sunset with is about 72 minutes prior to צאת הכוכבים. Being that the blood of the evening korban Tamid must be sprinkled before sunset it would follow that in the context of davening mincha, it must be done before sunset. The main activity to validate the korban tamid is the sprinkling of the blood so it would follow that the tefillah of mincha would be dependent on the sprinkling of the blood. Rabbeinu Yona's source for limiting the time of mincha until sunset is completely dependent on learning the definition of שקיעת החמה in our gemara like Tosafos to refer to actual sunset.

The Sha'agas Aryeh (17) has a very long Teshuva where he strongly disagrees with Tosafos and holds that the blood of the korban would only become invalid from being sprinkled at צאת הכוכבים not at sunset. Based on this he writes that the term "erev" in the context of davening mincha is also until צאת הכוכבים, not sunset. He therefore rules that one would be allowed to daven mincha even after shekiha (as chassidim typically do) because even the blood of the Tamid after which mincha was modeled can be sprinkled until צאת הכוכבים. In truth, the Rama (o.c. 233:1) also writes that the time of mincha extends until צאת הכוכבים which can also be read into the term לילה used by the Shulchan Aruch. It is the opinion of the Gr"a (261) that we tend to follow who considers anytime after sunset to be safeik layla, and considers bein hashmashos to last for only 15 minutes or so after sunset at which point it is considered צאת הכוכבים. See the footnotes on Sha'ages Aryeh (footnote 13) where he quotes many opinions who agree with the sha'agas aryeh that mincha can be davened until צאת הכוכבים.

Zevachim 55b - Door of Ohel Mo'ed Being Open

The gemara learns from the fact that the Torah writes by the korban shlomim that it must be slaughtered פתח אוהל מועד that the shechita must take place when the doors are open, not when the doors are shut. The gemara continues to explain that any area where shechita was done had to have some exposure to the inside of the ohel mo'ed, or the u'lam which rashi explains was also called "ohel mo'ed", or to the kodesh ha'kadashim (beis ha'kapores - to allow shechita behind the beis hamikdash in the west). Although the gemara only discusses this requirement regarding the korban shlomim, Tosafos in Yoma 29a writes that the same halacha applies to all korbanos that the area of shechita must be exposed in some way to the inside of the ohel mo'ed.

This halacha of the doors of the ohel mo'ed being open seems to apply only at the time of the shechita not during other avoda, even though the shechita was less avoda-like being that it didn't require a kohein. The Meshech Chochma explains that since shechita was the start of the avoda it had to be in an area where Hashem's presence was visible to connect the avoda to the source of kedusha. Once the avoda begins on the right foot, the remainder of the avoda even it if is more essential follows along - כל העושה על דעת ראשונה עושה ,זבחים בע"ב. It is for this reason that the avoda must begin by day, not by night because daytime is considered when Hashems presence is noticed and revealed. The completion of the avoda such as the burning of the korban could be completed even at night.

Zevachim 53a - 54b - Placement of blood on "horns"

The gemara on 53a brings a machlokes between rebbi and r. elazar b'rabi shimon whether the blood of the korban chatas which required "k'ranos" had to be placed on the 1x1 amah horns that protruded up on the 4 corners of the mizbeiach (r. elazar b'rabi shimon) or if the 4 amos from the top of the horn down had the status of the "horn" and was available for the placing of the blood of the korban chatas. The gemara says that according to rebbi there was a dispute when the blood was placed beneath the horns within the top 4 amos of the miz'beiach, whether it had to be placed on the sharpness of the corner. The issue seems to be dependent on the definition of the term "keren". Certainly it refers to the horn, but can also mean the corner. When the blood is placed on the actual horn it doesn't need to be on the corner, but when it is placed beneath the actual horn, it is a machlokes whether we require it to be placed on the sharpness of the corner (see rashi d.h. u'mar savar, who seems to support this explanation).

In the gemara 54b rav kahana explains that they would make hollow areas within the horns by placing small sticks in that they would pull out when the cement began to dry. Rashi explains that the purpose of these hollow areas was to contain the blood that was sprinkled on it. Tosafos asks on rashi that the blood wasn't placed on top of the horn, rather on the sharpness of the corner so it doesn't seem that the holes were there to absorb the blood? The ya'avetz says that he doesn't understand Tosafos. The gemara on 53a established that all agree the blood can be placed on the horns, in which case it doesn't need to be on the sharpness of the corner. Therefore, rashi is correct that the blood can be placed on the top of the horn and the holes were necessary to help it become absorbed. Perhaps Tosafos understood that although the blood doesn't need to be placed on the sharpness of the corner when it is actually placed on the horn, it would still be ideal to place the blood on the sharpness of the actual horn because that would fulfill both definition of the term "keren" - horn and corner.

Zevachim 48a - Safeik Aveira is Stricter than Definite

The gemara says that the minimum price that one must spend on an asham, even an asham taluy that is brought when one may have violated an issur for which they would have to bring a chatas (if they were sure they violated it), is 2 selah. The gemara suggests that we need a special limud for this because logic would dictate that if a korban chatas which is for a definite violation has no minimum that must be spent (although the gemara says a danka, rashi and tosafos both explain that it is an exaggerated small amount, but not literal), certainly an asham which merely suspends punishment until he realizes that he did the aveira and brings a chatas, should not have a minimum amount. This logic seems pretty solid, yet the halacha is that an asham taluy has a minimum amount and a korban chatas doesn't (Tosafos points out that as a mitzvah min hamuvchar it should be at least one selah - half the value of an asham). Why?

Rabbeinu Yona (brachos on rif 2b) explains that when one commits a definite aveira he focuses on his sin, worries about it, regrets it and does teshuva. But, when one violates a safeik aveira he justifies his actions by saying that he probably didn't violate anything at all. He rationalizes by saying that he probably ate the kosher piece of meat rather than the treif one and doesn't focus on teshuva. Therefore, the Torah demands that he spends more money on his korban. Rabbeinu Yona doesn't explain how spending more on the korban will make up for the lack of teshuva. Perhaps the idea is that by having to spend more on the korban he will realize the severity of the prohibition, and that will inspire him to do teshuva. Or perhaps the extra money he is required to spend will be a kappara even without the same level of regret.

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.

Zevachim 42 - 43 - Eating the Matir isn't a violation of eating pigul

The mishna gives a list of items such as the kometz of the mincha and th blood of the korban which re used to be matir other things, therefore the eating of these things would not be considered a violation of pigul to be chayev kareis. Tosafos asks, why by the kometz of the minchah do we need to exempt it from pigul based on the rationale of pigul only applying to "something which has a matir, not something which IS a matir". Even without that rationale one couldn't be in violation for eating the kometz since another condition of pigul is that the matir must be brought on the mizbei'ach according to it's mitzvah (and by eating it, he isn't doing it's mitzvah)? Tosafos rejects rashi's approach that we need it for case where he removed it from the mizbeiach after the fire took hold, because then it would no longer be considered pigul at all. Tosafos answers that we need it for a case where part of the kometz is brought on the mizbeiach and he ate the other half. The half on the ground that was never brought up one would be chayev for eating if not for the rule of only being chayev on something that has a matir, not on something that IS a matir.

However, this approach doesn't resolve the same question regarding the blood that is sprinkled on the mizbeiach. Why do we need to say that you can't be in violation of pigul because it IS a matir, if anyway there can't be pigul unless the mitzvah is done properly? The case can't be when he ate from the remaining blood in the mizrak (vessel) after sprinkling because that blood is not a matir and the rationale to exempt doesn't even apply? Tosafos suggests that the concept of pigul falling off by it being brought on the mizbeiach may only apply to things that are burned on the mizbeiach, not things that are sprinkled on the mizbeiach like blood. Another suggestion Tosafos has is that since all the blood in the mizrak was fit to be sprinkled, it is all called a matir.

The difficulty with Tosafos first answer is that the concept of pigul falling off when it is brought on the mitbeiach isn't learned from a pasuk, it is pure logic. Since the burning of the kometz on the mizbeiach can establish the other parts of the korban mincha to be pigul by it being accepted as a korban, it certainly can cause the status of pigul to be removed from it itself. Why wouldn't that exact same logic apply to the blood - since it can cause the meat to become pigul by the sprinkling being accepted, it should certainly remove the status of pigul from itself? Tosafos hints to the answer by saying - כי אם גבי הקטרה דוקא שנעשה לחמו של מזבח. Meaning, the logic if it removing pigul from itself is by becoming food of the mizbeiach. It is not the act of burning but rather the result of burning which removes the pigul. Therefore, the blood which doesn't become the food of the miz'beiach would not lose it's status of pigul and the only reason one wouldn't be in violation of pigul by eating the already sprinkled blood is that it IS a matir.

Zevachim 41b - Paroches HaKodesh

The gemara quotes tana d'bei rebbi yishmael that point out the discrepancy in language used to refer to the paroches - in the parsha of the kohein moshiach (vayikra 4:6) it refers to it as "paroches ha'kodesh", but in the next parsha of he'elem davar it refers to it simply as "paroches". The Meshech Chochma (without even referencing our gemara) gives a simple explanation. According to most opinions (117a) a chatas yachid cannot be brought on a bama gedola whereas a chatas tzibbur can. Therefore, a chatas yachid can only be brought when the aron ha'kodesh is present. Therefore, by the par kohein moshiach which is a chatas yachid and requires that aron ha'kodesh, we refer to the paroches as "ha'kodesh" indicating that an aron must be there. But, for a chatas tzibbur we don't require an aron so by the par he'elem davar we simply refer to the paroches as a paroches because the "kodesh" aspect isn't necessary. Rashi on the pasuk of paroches ha'kodesh also offers a simple explanation. The sprinkling can't be on any part of the paroches, it must be aimed at the "kodesh" point of the paroches opposite the badim of the aron. However, Rashi on the pasuk of par he'elem davar is apparently troubled by not using the term "kodesh" in that parsha since the assumption is that there also the sprinkling must be opposite the badim of the aron, so rashi quotes the tana d'bei rebbi yishmael -

The tana d'bei rebbi yishmael explains derech d'rush - when the kohein moshiach sins the kedusha/shechina remains in place. But, when the majority of the tzibbur sins, the kedusha leaves. It is a parable to a king who had most of his constituents rebel - אין פמליא שלו מתקיימת. Rashi explains that the king no longer can express his jurisdiction and control over the nation when they are rebelling against him.

The parable seems very strange. The halacha of par he'elem davar is not for the tzibbur rebelling against Hashem, it is brought as we learned in horiyos when the sanhedrin makes a mistake in p'sak and misleads the people. Why would this be reason for the kedusha to leave as if the Jews were rebelling against Hashem? I think that the peshat is that the aveira is not the cause of the kedusha to leave, rather the fact that most of the tzibur could be misled by sanhedrin and stumble in an issur kareis is evidence of the fact (a siman) that the shechina has left. The aveira of rov tzibbur isn't the cause for the shechina to leave, it is the effect. This is very meduyak in rashi - ואם רובה סרחה וכו' הרי הוא מסולק מחיבתם וכוק ואין לבו גס בהן כבראשונה, ה"נ כיון דרוב ציבור סרחה כביכול אין כאן שכינה. Rashi doesn't say that the shechina leaves when they do the aveira, instead rashi writes that if the aveira is done it is evidence that אין כאן שכינה.

Zevachim 37b - Kappara by putting blood on yesod

The gemara says that according to beis hillel, all korbanos including chatas only require a minimum of one matana which is me'akev, but ideally require 3 matanos. This is learned from the fact that there are 4 pesukim that reference the keren of the mizbei'ach. The gemara asks that perhaps all 4 pesukim teach the lichatchila, and there is nothing at all that is me'akev. The gemara answers - כפרה בכדי לא אשכחן, without doing any matanos it is impossible to achieve atonement. Therefore, one of the pesukim would have to be li'ikuva.

The Cheshek Shlomo raises an interesting question based on Shmuel 26b who darshens from the pasuk that as far as the owner receiving a kappara the blood can be put anywhere on the miz'beiach. Shmuel darshens from the pasuk of ואני נתתיו לכם על המזבח לכפר that as soon as the blood reaches the mizbei'ach the owner achieves atonement, even if it didn't hit the right part of the mizbei'ach. The cheshek shlomo understands that according to Shmuel it shouldn't matter if the blood hits the korner or hits the yesod, so long as it hits the mizbei'ach the owner is forgiven. Based on this, our gemara that says we require a minimum of placing the blood on one corner to achieve atonement because kappara can't come for nothing. But how does the gemara know this, perhaps all 4 pesukim require lichatchila the blood to be placed on all 4 corners, but bidieved even if it isn't put on any corners just on the yesod, it would give kappara? Why does the gemara consider the blood being poured on the yesod and not on the corner to be כפרה בכדי - atonement for nothing?

Zevachim 35a - Is Milk Part of the Animal?

The mishna says that if one shechts a korban to eat the fetus in the womb out of the proper time, it doesn't create pigul. At the end the mishna says that if one creates pigul with the intent of eating the meat out of the proper time, the status of pigul wouldn't apply to the milk. There is a slight deviation in Rashi from the explanation as to why the fetus isn't me'fagel vs. why the milk isn't mefagel. On the fetus rashi writes - דלאו גופיה דזיבחא הוא, meaning that it isn't part of the actual body of the korban, but on the milk rashi writes - דלאו זיבחא הוא, meaning that it isn't a korban. What is the implication of this subtle difference?

The Cheishek Shlomo explains based on the Rambam (ma'achalos asuros 3:6) who says that milk of a non-kosher animal is forbidden by the Torah but there wouldn't be any malkus since the pasuk of malkus explicitly states "the meat" of the animal, and milk isn't meat. Similarly, the issur of eating pigul on an animal that has status of pigul is - ואם האכל יאכל מבשר זבח שלמיו, implying meat and not milk. Meaning, milk may very well be considered an inherent part of the animal, the violation of pigul is only for eating the meat and nothing else. However, in the creation of pigul one has to think to eat an inherent part of the korban out of the proper time, to the exclusion of something which isn't an inherent part of the korban. Therefore, when talking about the making of pigul rashi uses the term that the fetus isn't גופיה דזיבחא - it isn't an inherent part of the korban. But when speaking about a korban that is pigul and explaining why there is no kareis violation for eating the milk rashi says דלאו זיבחא הוא, meaning it isn't the meat of the korban. According to this approach it is possible that Rashi would hold that if one creates pigul by intending to eat the milk out of the proper time it would create pigul, but the cheishek shlomo rejects this possibility.

Perhaps rashi agrees that one cannot create pigul by thinking on the milk to eat it out of it's proper time. This was so obvious that the mishna never had to discuss this case because clearly the milk isn't an essential part of the animal - לאו גופיה דזיבחא הוא. But, one may have thought that on a pigul animal one would be in violation of eating pigul for eating the milk because although it isn't an essential part of the animal, it is still part of the animal. Therefore, rashi has to say - לאו זיבחא הוא that it isn't at all a part of the animal. However, the fetus on a live animal is more likely to be an inherent part of the animal to create pigul since it's existence is dependent on the mother, so it is necessary to speak out that pigul can't be created by intending to eat the fetus out of it's proper time. But once the animal is turned into pigul, the fetus is more of an independent entity and would not be part of the animal to be in violation of eating pigul. This is how rashi explains the mishna until R. Elazar in the gemara introduced the notion of not being mifagel to create pigul but being mispagel to be in violation of eating pigul. The gemara at the end conforms the mishna with R. Elazar. At that point rashi doesn't want to say that the fetus is enough part of the animal to be mispagel but not enough to be mifagel. Therefore, rashi offers another approach that the fetus is indeed part of the animal and should be pigul with the animal. However, there is a special requirement that to be mifagel it needs to be a part of the animal that is routinely eaten, to the exclusion of the fetus. In conclusion the fetus is part of the animal but not normally eaten so it is mispagel but not mifagel, whereas the milk is not mifagel or mispagel.

Zevachim 35a - Is Blood a Chatzitza?

The gilyon maharsha (both on the gemara and in y.d. 198:17) references the shevus ya'acov (69) who asks that a halacha in the rama seems to contradict our gemara. The gemara says that the kohanim would walk knee deep in blood because they would plug up the outlet of the courtyard to hold in all the blood of korbanos (according to R. Yehuda it was done so that they could do a zerika at the end of the day on all the korbanos slaughtered that day, but according to Rabbonon it was merely to show the "shevach" of the kohanim that they sacrificed so many korbanos on erev pesach). The gemara asks that the blood should be a chatziza between the feet of the kohein and the floor, and answers that since it is wet it is not a chatzitza. The implication of the gemara is that if the blood would dry on their skin causing a separation between their feet and the floor, it would constitute a chatzitzah. The problem is that the Rama paskens (y.d. 198:17) that if a woman's profession is to be a butcher or shochet the blood on her wouldn't be considered a chatzitza since people who have that profession aren't makpid about blood on themselves. Clearly, the Rama holds that even if the blood were to dry causing a separation between their skin and the mikva water, it still wouldn't be a chatzitzah. So, why by the kohanim does the gemara imply that it would be a chatzitza if it were dry since this is their profession?

The Shevus Ya'akov seems to conclude that paint on the skin isn't a chatzitza for a painter, but blood would be a chatzitza on the skin (just not on the clothing as the gemara and rashi imply later in zevachim 98b). However, this isn't sufficient to explain the Rama who says that blood isn't a chatzitza even on the skin for a shochet or butcher?

The sefer halachos ketanos paskens that a mohel who has blood on his hands can be tovel and it wouldn't be a chatzitzah citing our gemara that just as its a "shevach" for b'nei aharon to have blood on their feet, it is a shevach for a mohel to have the blood of the mitzvah on his hands. The Shevus Ya'akov asks that the gemara implies exactly the opposite that the blood would be a chatzitza after it dries?

I would like to suggest an approach to answer the question of the shevus yakov on the rama and on the halachos ketanos. There seems to be an inherent question on the gemara itself. The rule of chatzitza is that it is only a problem if the person is makpid about it. Since the gemara says that during the avoda it is a shevach to be knee deep in blood and they would set this up intentionally, there is certainly no hakpada against having the blood so why should it be considered a chatzitza (even if we don't accept the rama's chiddush that blood is never a chatzitza for a shochet, it certainly wouldn't be a chatzitza at a time where it is a shevach to be there)? The reason that something a person isn't makpid on isn't a chatzitza is because it becomes tafel to his body. We don't say that not being makpid is itself a rationale to not be regarded as a chatzitzah, it is merely a rationale to consider the item tafel to the body. This logic would apply to any type of substance that is attached to his body and he isn't makpid about. However, when the courtyard of the beis hamikdash is filled with blood, it is impossible that all the blood would be ta'fel to his body. Therefore, the only way that the enormous amount of blood wouldn't be considered a chatzitza is if it did not cause a blockage between the kohein and the floor, such as when it is moist. But if it were dry since there is so much blood it would be a chatzitza even if he wasn't makpid about it. However, for tevila any blood that one isn't makpid about on their skin such as a shochet or mohel, wouldn't be a chatzitza even when it's dry because it would be ta'fel to their body.

In my sefer Mayim Rabim (pg. 274) I quoted the sidrei tahara who answers the question differently. He says that the din that when the majority is covered it is a chatzitza even when one isn't makpid is judged by whatever are we require contact. Therefore, for tevila where the entire body needs contact, it is only considered a chatzitza when majority of the body has a chatzitza (or if he is makpid), but when all we require to touch the floor of the courtyard is the bottom of the foot, we judge majority by the foot. Even if we say that he isn't makpid it would at least be a chatzitza d'rabonon because of rubo she'eino makpid, and perhaps even m'doraysa according to those who hold that the entire body being covered would be a chatzitza even when she isn't makpid (since the entire bottom of the foot would be covered in blood).

Zevachim 29b - Prohibition to create Pigul

The gemara learns out from the pasuk of "lo yechashev" that aside from the issur to eat pigul, there is a prohibition on the kohein against creating pigul by having a thought of eating the korban outside of the proper time (or burning the eimurin on the mizbei'ach after the proper time). However, whether or not one would receive malkus for creating pigul would be dependent on whether there would be malkus for a לאו שאין בו מעשה. We pasken that there is no malkus for a la'av sh'ein bo ma'aseh so the kohein doesn't receive malkus for creating pigul. Nonetheless, the sefer ha'chinuch (mitzvah 144) writes that it isn't counted in the taryag mitzvos because it is under the general heading of the la'av of pigul (which is the prohibition to eat pigul).

We've mentioned before that there is a machlokes whether pigul is created by the kohein merely thinking to eat it outside the proper time, or only when he verbally articulates it. The Mishneh l'melech (pesulei hamukdashin 13:1) cites a machlokes between tosafos and the rambam about this issue. The magi'ah on the mishne l'melech asks that if pigul can be violated by merely thinking without articulating it verbally, how can there be malkus - how would he be warned against pigul? The Minchas Chinuch says that he doesn't understand the question because even if pigul can be violated without verbal articulation, the case of malkus may be only when it is verbalized. The minchas chinuch himself asks the opposite question. The gemara implies that pigul is a לאו שאין בו מעשה, but according to those who say that it can only be violated through a verbal declaration, it should be considered a ma'aseh since the declaration results in a consequence of establishing pigul? Just as the Rambam (Issurei Miz'beiach 1:2) writes that one gets malkus for being makdish an animal with a mum because through his speech the status of hekdesh falls on the animal, here too through his speech the status of pigul falls on the korban? The minchas chinuch explains that according to those opinions that anything that can be violated without an action, even when it is violated with an action, may qualify as a לאו שאין בו מעשה and there is no malkus, all is good. But according to the opinions that it can only be violated through a verbal declaration, and according to the opinions that when violated through an action even if if could be violated without an action it deserves malkus (and certainly according to the rambam in sechirus who holds that even when violated without an action, there is malkus for any la'av that could be violated through an action), why is it considered a לאו שאין בו מעשה?

Perhaps the concept of an action resulting through a statement would only apply when we consider the statement to be creating the status such as hekdesh to a ba'al mum. But here by pigul the status of pigul is not a direct result of his actions rather the din torah is that when one has a thought of חוץ לזמנו the torah places the status of pigul on the korban, we still consider it a לאו שאין בו מעשה.

Zevachim 24a - Dovid or Shlomo: Who gave kedusha to the mikdash?

Rashi writes that the kedusha of the floor of the azara was done by Dovid HaMelech. Tosafos asks that although Shlomo was responsible for building the beis hamikdash, the kedusha was given to it by Dovid in advance of Shlomo's construction.

The Brisker Rav in one of his letters (pg. 81 in Gri"z al harambam) explains that the Rambam holds that Dovid was responsible for choosing the mikdash. The "bechira" of the place was done by Dovid, but the actual sanctity or kedusha was done by Shlomo. The din of "bechira" establishes the makom hamikdash as the only place to construct the beis hamikdash and forbids the sacrificing of korbanos anywhere else. But the actual kedusha of the courtyard and mizbei'ach was done by Shlomo as the Rambam writes in Hilchos Beis Habechira 6:14. The language of Tosafos indicates that they disagree with the Rambam and hold that the actual kedusha was contributed by Dovid, not Shlomo.

Zevachim 22a - Filters on Mikvaos

I am going to sieze (tnks!) the opportunity to write about a mikvaos sugya that i discussed in my sefer mayim rabim (pg. 172).

The gemara says that the din of נתן סאה ונטל סאה only works until rov, but once the majority of the water has been transformed the mikva would no longer be valid. Both Rashi and Tosafos (as well as the Rishonim on the mishnayos) understand this halacha to be speaking about wine and liquids other than water that would fall into the mikva. So long as they are falling into a 40 seah mikva, even if some water is removed afterwards the mikva would still be valid because the wine would be batul until most of the water has been replaced with wine (at which point the wine couldn't be batul to the water). These rishonim would understand that if instead of wine the same system was used to add drawn water to the mikva, it could go on forever and wouldn't be invalidated when the majority of the water is drawn water. The rationale for this distinction is a concept of zeri'ah or hashaka where we consider any drawn water added to the mikva to become purified in the mikva as if it were actual mikva water. However, the Rambam (Mikvaos 4:7) understands that even by drawn water the mikva would only be kasher so long as the majority of water is rain water, not drawn water. The Rosh indicates that the peshat in the Rambam would be that a mikva under all circumstances must retain a majority of rain water, any less would invalidate the mikva presumably on a Torah level.

The Beis Yosef (y.d. 201) explains that essentially the Rambam agrees with the other rishonim that drawn water becomes mikva water upon contact, technically even if the majority of water originates as drawn water. The Rambam holds that when one is manually drawing water and adding water, it looks to the eye that the mikva water has been taken out and will lead to one using a mikva containing only drawn water, therefore the mikva is passul m'drabonon.

Many mikvaos use standard pool filters which draw water from the mikva, filter them through a beis kibbul and pump the water back into the mikva. This is basically the same as נתן סאה ונטל סאה because after a few days or weeks the majority of water in the mikva will end up being drawn water and passul according to the Rambam. Although Shulchan Aruch paskens like the other Rishonim, the Shach is machmir for the Rambam and it is therefore preferable not to use a mikva that has a pool filter. Rav Moshe Feinstein (igros moshe y.d. 1:119) raises an interesting question - according to the beis yosef approach in the rambam that it is a ma'aras ayin issue, it would only make sense if the water is added and removed immediately. If there is a time that elapses between the adding of water and the removal of water, such as separate days, it won't be obvious to anyone that the extra water in the mikva is drawn water. Based on this approach, it would seem that even if the majority of water would be drawn, so long as it isn't done immediately, it wouldn't present a problem. Nonetheless, this heter wouldn't seem to apply to pool filters because when one sees the method that is used to draw and add water, it becomes obvious that after hours, days or weeks of running, all the mikva water will eventually be replaced with drawn water and would certainly be a ma'aras ayin issue. But, the chazon ish (mikvaos tanina 4:10) holds that one can follow the shulchan aruch and doesn't need to worry about the shach and Rambam since according to beis yosef it is at worst a p'sul d'rabonon.

Zevachim 15b - Two quick hearos

1. The mishna gives a list of people who are passul for doing kabbalas ha'dam, the second being an o'nen. Rashi defines an o'nen - כל זמן שלא נקבר המת, pre-burial. This doesn't seem accurate because the din o'nen in the Torah who cannot eat ma'aser sheini or kodshim is even after the burial, so long as it is the day of death. The Rambam in pirush hamishnayos writes explicitly that the o'nen we are referring to here also is one who lost a relative that day, regardless of whether it is before or after the burial. Rabbeinu Yona in Brachos elaborates about this that chazal extended and modified the definition of o'nen and applied it to any preburial situation even after the first day, but this isn't the definition when used by the Torah. Does rashi mean to say that pre burial even after the day of death an o'nen would passul the korban by doing kabbalas ha'dam on a rabbinic level?

2. The Rambam in the pirush hamishna points out that kohanim would not wear tefillin shel yad when doing the avoda because it would be a chatzitza between the bigdei kehuna and his skin, but would wear the tefillin shel rosh would even be worn by the kohein gadol between the tzitz and the mitznefes.

Zevachim 13b - Pigul

Rashi defines as having a machshava at the time of doing one of the 4 avodas - shechita, kabala, holacha, zerika - to intend to either feed people (meat) or the miz'beiach (eimurin/dam) after the appropriate time. The gemara says that when a korban becomes passul due to a thought of pigul, it is only considered pigul if it was completed properly without any other p'sul mixed in. But, if the korban would become invalid by something done later such as a machshava of lo lishma by chatas, or a machshava of the wrong place by all korbanos, it would retroactively remove the issur pigul. Meaning, that the more severe prohibition of pigul for which the punishment is kareis, only applies when the korban retains is kashrus in all other areas.

R. Yakov Kaminetzky (parshas kedoshim) conceptualizes this point. The more precious something is, and the holier that it is, the easier it is to defile because the impurity is more noticeable. It is for this reason that the Torah places greater demands on klal yisroel than the other nations, because any impurity will stand out. He points to the statement we make in selichos - Ashamnu mi'kol Am - we are guiltier that all other nations. That is certainly not true. But it means that since we are meant to be the showcase of behavior and represent Hashem on earth, any impurity stands out like an ugly stain on fine white material. Therefore, when a korban becomes passul for some other reason, it no longer retains its stature and retroactively isn't susceptible to becoming pigul.

Zevachim 8b - Difference between chatas and pesach

Both korban chatas and korban pesach are listed in the mishna as exceptions to the standard rule. The standard rule is that if shechita is done shelo lishma the connection from the owner is broken, but it remains a kasher korban. Whereas chatas and pesach that are shechted shelo lishma are entirely invalid korbanos. Chatas and pesach are essentially the same in that their essence is to work for the owner, if the connection to the owner is broken, the korban becomes completely worthless. It would seem that there is no difference at all between chatas and pesach.

However, the gemara on 3a says that a chatas that is shechted l'sheim chulin (having in mind that it has no kedusha at all), doesn't impact the korban in any way. The rationale, as the gemara explains is - דמינה מחריב בה, דלאו מינה לא מחריב. This means that in order to be considered "shelo lishma" it must be something within the same general category as the korban, namely another korban, to the exclusion of chulin which is so out of left field it doesn't even qualify as shelo lishma. It should follow that a korban pesach that is shechted l'sheim chulin also has no impact on the korban for the same reason. BUT the Rambam (pesulei hamukdashin 15:11) writes that a korban pesach that is shechted l'sheim chulin becomes invalid. Why is korban pesach any different that chatas in this respect? Why don't we say by korban pesach as well that דמינה מחריב בה, דלאו מינה לא מחריב?

The Meshech Chochma (bo, 12:27) refers to his Ohr Sameiach where he elaborates on this issue. R. Meir Simcha explains that the whole concept of "l'sheim chulin" only applies to the act of slaughtering which applies to chulin, but doesn't have any place by the kabala and zerika which don't at all apply to chulin. That explains why chulin kavana during shechita could invalidate. Now, most korbanos have one function - to do the avoda of the blood to serve Hashem. Therefore, chulin which has an entirely different function - to eat the meat, has no commonality with kodshim in their essential purpose. That is the rationale behind דלאו מינה לא מחריב - l'sheim chulin doesn't ruin it since it is fundamentally so different. However, korban pesach if very different than other korbanos. Korban Pesach is primarily for the purpose of eating. That is why it is eaten b'tumah, and it must be shechted for eaters... Since korban pesach is fundamentally for the purpose of eating, it isn't so different than chulin in that respect. That is why intent for chulin will ruin a korban pesach. Although chulin is considered לאו מינה of most korbanos, it is considered מינה of chulin.

Zevachim 7a - Types of shinuy kodesh and shinuy ba'alim

Rava makes a few statements in the gemara:

1. Chatas that is shechted for chatas even for a different aveira is kasher and works for the owner (rashi), but if it is shechted for o'lah it is entirely passul (rashi).

2. Chatas of Reuven that is shechted for Shimon, if he is obligated in a chatas it is passul, but if he is obligated in an o'lah it is kasher.

3. Chatas of Reuven that is shechted for Shimon who is not obligated in anything is passul because he is definitely at least chayev in an aseh. Rambam (pesulei hamukdashin 15:9) writes: maybe Shimon is actually obligated in that korban just doesn't remember.

The most obvious question is: If when we shecht Reuven's chatas for Shimon who is chayev an olah, it is kasher, but if Shimon isn't chayev anything it is passul (because it could apply to an aseh that shimon must have violated)? Rashi 7b explains that when it is shechted for Shimon who has no need for it, such as when Shimon has just designated a korban o'lah for all his aseh violations, it is kasher. But, if Shimon hasn't designated an o'lah it is needed by Shimon for his aseh violations and therefore would be invalid as a shinuy ba'alim.

In case #2 where Reuven's chatas is shechted for Shimon who is obligated in an o'lah, the gemara just says that it is kasher but doesn't make it clear whether or not it works for it's original owner. Rambam (pesulei hamukdashin 15:8) writes that it is kasher and doesn't work for the original owner. Minchas Chinuch (138) asks on the Rambam how he knows that if it is shechted for Shimon who is obligated in an o'lah, it would not work for Reuven? Since by a korban chatas the kashrus of it seems to go hand in hand with it working for the original owner, it would seem more logical that it should work for the owner since the shinuy of using it for Shimon's olah doesn't invalidate it?

The Rambam seems to understand that the rationale that only when Reuven's korban is brought for Shimon who is chayev in a korban "like him" will it be passul, to the exclusion of an o'lah, only helps to maintain the kashrus of the chatas but doesn't help to allow Reuven to fulfill his obligation. In order for Revuen to fulfill his obligation it MUST be brought for Reuven, not for Shimon, even when Shimon is only chayev an olah.

Zevachim 6a - Thought about O'lah atoning for aseh

The gemara discusses whether a korban o'lah can atone for a mitzvas aseh that was "violated" (or not kept) after designating the animal for the korban. The gemara justifies the rationale that it would work, even though by a chatas it wouldn't work, is that an o'lah can atone for many violations whereas a chatas can only atone for one (each aveirah violated would demand a separate korban chatas). Rashi explains that the Torah doesn't require an independent korban olah for each aseh that was violated because it is "only a gift".

It seems to me that Rashi can be better explained based on the Ramaban in the aseres hadibros who writes that a positive mitzvah is a method of representing "love" whereas the lo ta'aseh in the torah is essentially yir'ah - fear. The idea behind mitzvas aseh is that we get up and do something to demonstrate our love and devotion to Hashem. There is no specific consequence or punishment for not doing, because then the doing could be out of fear, and the entire point of these mitzvos is to provide us with a method of showing love for Hashem. Therefore, it follows that a chatas which comes for the violation of an aseh is in place of the punishment that one deserves for the violation. Each aveira deserves it's own punishment and therefore demands it's own korban chatas. But, the concept of a korban olah atoning for a positive mitzva is that it provides us with a method of "donating" a gift to Hashem, thereby grabbing the opportunity to express our love for Hashem that we missed by forfeiting the opportunity to fulfill the aseh. It is for this reason that one Olah can atone for many mitzvos aseh because it is not mitzva specific, rather it is a method of showing our love and devotion for Hashem for the one or many opportunities that we missed to express our love.

This point is supported from the gemara on 7b and rashi which explains that an o'lah can only be brought on an aseh after teshuva has been done and the person technically already received atonement. The entire function of the olah is to serve as a gift. Rashi expresses this in context of a parable of one who committed a crime against the king and already appeased him, when he comes to greet the king he brings along a gift.

Zevachim 5b - Lishma by Goat of Nassi

The gemara says that the passuk of "chatas hu" which is written in the context of the goat brought by a nassi, is the source that it must be shechted l'sheim chatas, otherwise it would invalidate the korban entirely.

The Meshech Chochma (Vayikra 4:22) questions, why specifically in the context of the goat of the nassi does the Torah decide to teach us the integral need for lishma by a korban chatas, rather than telling us this by a regular korban chatas? He explains based on a gemara in Sota 32b that the Torah tells us that a korban chatas should be slaughtered in the same place that the korban O'lah is shechted, so as not to embarrass one who brings a chatas by fooling bystanders into thinking he is actually bringing an o'lah. The gemara says that even though and o'lah is male, whereas chatas is female, it can be covered with the tail. If he chooses to bring a female goat, which has no tail to cover up the gender, that was his choice to embarrass himself, but wasn't compelled by the Torah. The Meshech Chochma suggests that it is for this reason that a Nassi brings a male goat, is to protect his honor so that people will be fooled into thinking that he is bringing an o'lah rather than a chatas. It would degrading for klal yisroel to publicize that a nassi did an aveira for which he has to bring a korban, so bringing a male goat is a method of limiting the chilul hashem. Therefore, one may have thought that the lishma on this korban should also be done l'sheim o'lah rather than l'sheim chatas so that everyone including the kohanim bringing it (and anyone listening according to those who say that lishma must be spoken out - see tosafos 4b, tosafos 2a and gilyon hashas). It is for this reason that the Torah writes "chatas hu" - it must be done l'sheim korban chatas and NOT l'sheim korban o'lah.

The fundamental point of the meshech chochma that a Nassi should hide the fact that he did an aveira and fool the bystanders into thinking he is bringing an olah rather than a chatas seems to me as being incompatible with the gemara in Horiyos 10b - אשר נשיא יחטא- אמר ר' יוחנן בן זכאי אשרי הדור שהנשיא שלו מביא קרבן על שגגתו, אם נשיא שלו מביא קרבן צריך אתה לומר מהו הדיוט, ואם על שגגתו מביא קרבן צריך אתה לומר מהו זדונו

The gemara indicates that when people see that even the Nassi is willing to admit his mistakes and bring a korban, they will be inspired to do teshuva. This seems to indicate that we want to publicize the fact that the Nassi is bringing a korban on his aveira, not hide it. The meshech chochma (4:31) himself acknowledges that for a regular person it is beneficial to embarrass himself by bringing a female goat and publicize that he did an aveira and that is why the Torah writes ריח ניחוח only in the context of a goat brought as a korban chatas, not a sheep. Only when he goes out of his way to embarrass himself over the aveira is his korban worthy of being a rei'ach ni'choach to Hashem. It is only by the Nassi that the Meshech Chochma suggests that it is beneficial to hide his aveira - but based on the gemara in Horiyos it seems that even a Nassi shouldn't hide his aveira.

Zevachim 2b - Stama Li'shma

The gemara makes a distinction between korbanos and gittin. In the context of kodshim we are willing to say that even if one didn't have explicit intent to slaughter the animal li'shma, we consider stam to also be li'shma. However, a woman who is not considered to be pending divorce (and even when she is forbidden to her husband, she can stay married just not have relations - tosafos), therefore stam is not considered li'shma.

To fully understand this concept, there is a basic chakira that opens up the sugya. Is there a requirement of li'shma, or is their a p'sul of it being done she'lo li'shma? If li'shma isn't a requirement, rather shelo lishma is a p'sul, it is obvious that stam would qualify as lishma simply because there is no demand of being lishma. However, if there is a positive requirement of li'shma, the only rationale to consider stam to be li'shma is that there is a subconscious intent of li'shma even though he was never cognisant of it - the intent that he would have had, if he was paying more attention qualifies as li'shma.

The Steipler proves that the approach of saying that there is a subconscious intent of lishma doesn't work because the gemara 3a says that if it is done for the sake of chulin, it is kasher - דלאו מינה לא מחריב בה. Meaning, that since chulin intent is so foreign we consider it as if there is no intent at all, so it defaults to being stam which we consider to be lishma. Clearly, when he is intending for chulin there is no subconscious intent for a korban, yet we apply stam lishma. This indicates that the reason why stam works is because there is no positive requirement of lishma, so long as it is not done she'lo lishma. According to this, it is difficult to understand why there is a difference between gittin where stam isn't lishma and kodshim where stam is lishma. If we assume that lishma isn't a requirement, why would there be a difference? One possibility is to fundamentally distinguish between gittin and kodshim. By gittin there is a positive requirement of lishma and therefore stam doesn't work, but by kodshim there isn't a positive requirement, therefore stam works. This doesn't seem to be the distinction of the gemara. The gemara says - זבחים בסתם לשמן עומדין, אשה בסתמא לאו לגירושין עומדין. The distinction seems to be between the case of kodshim vs. gittin, not a halachic distinction in what the requirement is. Therefore, we must say that both by gittin and by kodshim, there is no requirement for positive intent of lishma. What is the distinction? We consider stam to be completely parve, but the situation has to compensate for the lack of intent. Therefore, an animal of hekdesh that is pending being brought as a korban can fill the void of intent, but a woman who is not pending divorce can't fill the void of intent. According to this, the rationale for stam being lishma is that the situation can compensate for the lack of intent, just as we find by eating cheilev as a mis'aseik where the enjoyment fills the void left by the lack of intent.

The Steipler then questions the mechanics of shelo lishma. In order for the korban which is standing to be brought as a korban to fill the void of lishma, the void must be left empty (parve), but if it is filled with an explicit intent of shelo li'shma, the fact that it is pending to be a korban can't make up for the lack of lishma - in short, we require either lishma or it to be compensated for by the korban, so when it is done shelo lishma, the p'sul is that it is a lack of lishma. Or perhaps there is literally no din of lishma at all. The problem with shelo lishma is not that it undermines the lishma, or prevents the animal pending to be a korban from filling the void of intent. Rather, shelo lishma is an independent p'sul just as pigul is an independent p'sul unrelated to any positive demands. The Brisker Rav (Ma'aseh Korbanos 4) and his father Rav Chaim (quoted by steipler) assume the second possibility, that since we allow stam, we clearly don't require lishma. Therefore, shelo li'shma must be an independent p'sul, not a problem of lacking lishma.

The Steipler proves that both rashi and tosafos are against the Brisker Rav and Rav Chaim . Rashi 3a says that when one slaughters a chatas for a shelamim it is passul becasue - דמינה מחריב בה - דבר שהוא מינו מועיל בה לעקור את שמו. Rashi implies like the first approach that we do require lishma, just that normally when left parve, the fact that it's pending to be a korban can make up for the lack of intent. But when the lishma is totally undermined and ruined by a thought of shelo lishma, the korban is invalid. We also see this from Tosafos in menachos 42b who compares the just as a korban mincha that is done both lishma and shelo lishma is passul, so too when tzitzis is made lisheim tzitzis and shelo lishma it is passul. By tzitzis there is definitely a positive requirement of lishma, so if we assume that by korbanos there is no positive requirement of lishma just a p'sul of lo lishma, we can't prove that tzitzis is passul from korbanos since the positive requirement of lishma was fulfilled. Tosafos must hold that even by korbanos there is a positive requirement of lishma, which is being undermined when there is a thought of shelo lishma.

Zevachim 2b - Stama Li'shma

The gemara makes a distinction between korbanos and gittin. In the context of kodshim we are willing to say that even if one didn't have explicit intent to slaughter the animal li'shma, we consider stam to also be li'shma. However, a woman who is not considered to be pending divorce (and even when she is forbidden to her husband, she can stay married just not have relations - tosafos), therefore stam is not considered li'shma.

To fully understand this concept, there is a basic chakira that opens up the sugya. Is there a requirement of li'shma, or is their a p'sul of it being done she'lo li'shma? If li'shma isn't a requirement, rather shelo lishma is a p'sul, it is obvious that stam would qualify as lishma simply because there is no demand of being lishma. However, if there is a positive requirement of li'shma, the only rationale to consider stam to be li'shma is that there is a subconscious intent of li'shma even though he was never cognisant of it - the intent that he would have had, if he was paying more attention qualifies as li'shma.

The Steipler proves that the approach of saying that there is a subconscious intent of lishma doesn't work because the gemara 3a says that if it is done for the sake of chulin, it is kasher - דלאו מינה לא מחריב בה. Meaning, that since chulin intent is so foreign we consider it as if there is no intent at all, so it defaults to being stam which we consider to be lishma. Clearly, when he is intending for chulin there is no subconscious intent for a korban, yet we apply stam lishma. This indicates that the reason why stam works is because there is no positive requirement of lishma, so long as it is not done she'lo lishma. According to this, it is difficult to understand why there is a difference between gittin where stam isn't lishma and kodshim where stam is lishma. If we assume that lishma isn't a requirement, why would there be a difference? One possibility is to fundamentally distinguish between gittin and kodshim. By gittin there is a positive requirement of lishma and therefore stam doesn't work, but by kodshim there isn't a positive requirement, therefore stam works. This doesn't seem to be the distinction of the gemara. The gemara says - זבחים בסתם לשמן עומדין, אשה בסתמא לאו לגירושין עומדין. The distinction seems to be between the case of kodshim vs. gittin, not a halachic distinction in what the requirement is. Therefore, we must say that both by gittin and by kodshim, there is no requirement for positive intent of lishma. What is the distinction? We consider stam to be completely parve, but the situation has to compensate for the lack of intent. Therefore, an animal of hekdesh that is pending being brought as a korban can fill the void of intent, but a woman who is not pending divorce can't fill the void of intent. According to this, the rationale for stam being lishma is that the situation can compensate for the lack of intent, just as we find by eating cheilev as a mis'aseik where the enjoyment fills the void left by the lack of intent.

The Steipler then questions the mechanics of shelo lishma. In order for the korban which is standing to be brought as a korban to fill the void of lishma, the void must be left empty (parve), but if it is filled with an explicit intent of shelo li'shma, the fact that it is pending to be a korban can't make up for the lack of lishma - in short, we require either lishma or it to be compensated for by the korban, so when it is done shelo lishma, the p'sul is that it is a lack of lishma. Or perhaps there is literally no din of lishma at all. The problem with shelo lishma is not that it undermines the lishma, or prevents the animal pending to be a korban from filling the void of intent. Rather, shelo lishma is an independent p'sul just as pigul is an independent p'sul unrelated to any positive demands. The Brisker Rav (Ma'aseh Korbanos 4) and his father Rav Chaim (quoted by steipler) assume the second possibility, that since we allow stam, we clearly don't require lishma. Therefore, shelo li'shma must be an independent p'sul, not a problem of lacking lishma.

The Steipler proves that both rashi and tosafos are against the Brisker Rav and Rav Chaim . Rashi 3a says that when one slaughters a chatas for a shelamim it is passul becasue - דמינה מחריב בה - דבר שהוא מינו מועיל בה לעקור את שמו. Rashi implies like the first approach that we do require lishma, just that normally when left parve, the fact that it's pending to be a korban can make up for the lack of intent. But when the lishma is totally undermined and ruined by a thought of shelo lishma, the korban is invalid. We also see this from Tosafos in menachos 42b who compares the just as a korban mincha that is done both lishma and shelo lishma is passul, so too when tzitzis is made lisheim tzitzis and shelo lishma it is passul. By tzitzis there is definitely a positive requirement of lishma, so if we assume that by korbanos there is no positive requirement of lishma just a p'sul of lo lishma, we can't prove that tzitzis is passul from korbanos since the positive requirement of lishma was fulfilled. Tosafos must hold that even by korbanos there is a positive requirement of lishma, which is being undermined when there is a thought of shelo lishma.

Horiyos 13a - Chacham more important than King

The braisa quoted in the gemara says that a talmid chacham has precedence in being redeemed from captivity over a king because he is harder to replace. Anyone can be king (it is like being president). The mishna seems to concur because after the entire list of priority, it says that a chacham has precedence over even a kohein gadol. Of course it is possible that the mishna deliberately doesn't mention a king, it is difficult to say that the mishna would disagree with the braisa. This makes the Rambam in his commentary to the mishna very difficult to understand.

The Rambam writes:

וזה שטעם קדימת חכם למלך אינו אלא באמונה בלבד לפי שהחכם תועלתו לאומה גדולה מאוד, אבל במעשה אין להקדים על כבוד המלך שום דבר ואע"פ שהוא עם הארץ שנאמר שום תשים עליך מלך

The Rambam somehow manages to consider the priority of a Torah scholar over a king to be merely theoretical, but claims that in practice a king would still have priority. What does the Rambam mean by this and how does he explain the fact that the braisa lists the priority of a chacham over a king in an actual situation of redemption from captivity?

Although I don't have a full understanding of how the Rambam can do this, it seems to me that the peshat in the Rambam is that he understands that the list of the mishna and braisa is a list of who is more important and/or more essential. Most of the time the more important/essential person should be saved before the other. However, when it comes to a king there is a specific obligation of שום תשים עליך מלך- שתהא אימתו עליך, to show fear and awe for the king. Although the king may be less essential, there is a specific obligation that would demand of every Jew to prioritize the king even at the expense of the more important Torah scholar. Therefore, when faced with a situation the Rambam holds that the king must be prioritized and this idea of the chacham being more important is "only b'emuna" - only in assessing his objective value, but not in practice.

Horiyos 13a - Order of Kadima

This post sounds a bit chauvinistic but my point is simply to clarify the halacha and understand the Rambam.

The mishna says that a man comes before a woman for להחיות ולהשב אבדה, but a woman comes before a man for clothing and redeeming from captivity. However, if there is a threat of being sodomized, the man would come first.

The gemara itself doesn't offer any rationale to explain the order of the Mishna. However, the Rambam in the pirush hamishna explains that men are obligated in all mitzvos whereas women are only obligated in some of them, therefore a man is more "mekudash" than a woman which gives him precedence להחיות. The Shach (Y.D. 251:11) explains that the definition of להחיות is to save them from a life threatening situation, not about tzedaka because that is included in "clothing" where a woman goes first since her embarrassment is greater. This definition is also meduyak in Rashi who says that a kohen gadol who is anointed for war comes before a s'gan for the purpose of להחיות because he is more essential to the Jewish people. Rashi seems to understand that להחיות is speaking about saving them from a life threatening situation and we prioritize the one who is more essential for the klal.

The difficulty is the end of the Mishna that says if both a man and woman are threatened with sexual assault, the man comes first. The Rambam in his commentary to the mishna writes it is because a homosexual assault to the man is worse than a sexual assault to the woman since it is a דבר שאינו טבע לו - against the nature. The Rashash asks, why does the Rambam have to provide a new reason as to why the man should take priority over the woman - even if all things were equal the man would still come before the woman since he is more me'kudash? Perhaps the Rambam understands that kedusha is only a rationale to give precedence to a man when his life is threatened (and certainly his property - hashavas aveida). The point is that the one who has more kedusha should be given the precedence of survival, but in a situation where they are being threatened sexually and survival is not a question, the kedusha difference isn't significant.

Another question is that R. Moshe Feinstein writes in a teshuva (O.C. ?:49) that the kedusha of men is not greater than that of women. Rav Moshe supports this from the fact that all the pesukim that deal with kedusha treat both men and women equally. Even in the bracha of אשר קדשנו במצותיו women make it with the same nusach as men. Rav Moshe continues that any difference in obligation is just because that is the way Hashem wanted it, but is not reflective of a superiority of men over women. The difficulty is that the Rambam seems to say otherwise! Furthermore, the context of the mishnayos is that כל המקודש מחבירו קודם את חבירו which is learned from a kohen who has first priority due to his kedusha, and then discusses a man coming before a woman. The context of the mishna compels the peshat of the Rambam that men have greater kedusha since they are obligated in more mitzvos. How does R. Moshe ignore this?

On another note, the Ya'avetz (quotes in pischei teshuva y.d. 252:7) raises an interesting question. What would be if the threat is not physical but rather spiritual. The community has a choice to redeem either a boy or a girl, but not both. He suggests that perhaps we should save the girl since it won't just be saving her, but it would be saving generations of Jews since her children will be Jewish, whereas saving the boy would only by saving him. However, the Ya'avetz concludes that since the precedence is given to the boy for physical danger, it should certainly be given to him for spiritual danger and we pay no attention to the fact that the girl will have Jewish children.

Horiyos 12a - Aron Was Hidden

The gemara says that Yoshiyahu hid the Aron (and the other items i.e. tzintzenes ha'man, shemen ha'mishcha...) because he understood from th Torah that the Jews were going to go into galus. This is learned from the pasuk in divrei hayamim from the pasuk - תנו את ארון הקדש בבית אשר בנה שלמה בן דוד מלך ישראל. The Rambam (Hil. Beis HaBechira 4:1) writes - ובעת שבנה שלמה את הבית וידע שסופו ליחרב בנה בו מקום לגנוז בו הארון למטה במטמוניות עמוקות ועקלקלות ויאשיה המלך צוה וגנזו במקום שבנה שלמה

There was a stone in the kodesh hakadashim on which the Aron was placed. At the time Shlomo built the beis hamikdash he understood that it was going to be destroyed and therefore built into the structure a place to hide the Aron. It was Yoshiyahu who realized that it was time to follow through on Shlomo HaMelech's initial plan and to hide the Aron. The Rambam cites the pasuk from our gemara. The Tosafos HaRosh (on the side of the gemara) explains that the Aron was already in the mikdash. Why did Yoshiyahu have to say that it should be placed in the bayis? Secondly, why does the pasuk reference Shlomo HaMelech? Clearly, the pasuk is indicating that Shlomo HaMelech initially understood that there would need to be a hiding place built underground in the beish hamikdash where the Aron can be hidden.

The Tosafos HaRosh continues, perhaps the pasuk in Melachim (1:8:21) which says - ואשים שם מקום לארון, refers to this hiding place. Shlomo designed a place for the Aron to be hidden and it was only revealed to very few of the kohanim and leviyim which is why Yoshiyahu spoke - ללוים המבינים לכל ישראל הקדושים להשם which means he told those who had a tradition about where this place was to hide the Aron in that place.

The Meshech Chochma (haftorah on pekudei) suggests that the pasuk of ואשים שם מקום לארון is not a reference to the hiding place, rather it is a sanctification of the place where the Aron stood in the kodesh hakadashim to give it the same kedusha as the Aron itself. He references the Rambam that Shlomo HaMelech understood that at some time in history the Aron will not be in it's proper place, so he sanctified the place of the Aron so that the sprinkling of the blood and burning of spices can be done on Yom Kippur even in the absence of the Aron, as if the Aron was still there. The Meshech Chochma at the end seems to agree with the Tosafos HaRosh (without quoting him). The reference to the "place of the Aron" is actually the hiding place that was designated for the Aron right beneath the kodesh hakadashim so that even when the Aron is in hiding, it is still במקומו - in it's place, to allow the avoda on YK to be done.

The Brisker Rav (letters printed in the back of the sefer pg. 81) was asked about the halacha that in the absence of the inner miz'beiach they were able to burn ketores (incense) in the place where it stood (zevachim 59). The Brisker Rav writes that the place of the mizbeiach had the same kedusha status as the mizbeiach itself, just as the meshech chochma suggests about the Aron. I once heard a fabulous shiur from Rav Nota Greenblatt from Memphis (given in our beis midrash) where he disagreed with the Brisker Rav and proved that that the halacha of ketores is not on the mizbeiach, rather on the makom mizbeiach. Meaning, it wasn't necessary to give the place of the mizbeiach the kedusha status of the mizbeiach because the halacha of ketores was on the place, not on the mizbeiach.

According to the approach of Rav Nota that the ketores doesn't require a mizbeiach so there is no need to say that the makom of the mizbeiach had the kedusha of the mizbeiach, there is a difference between the mizbeiach and the Aron. The halacha of burning ketores and sprinkling on YK in front of the Aron is that when the Aron is hidden underneath the ground, kedusha still emanates from it to sanctify the place where it stood as if it were there. This is very meduyak in the mishna Yoma 53a. The mishna refers to the Aron and to a Paroches. The gemara asks that the two never coexisted. In the first mikdash there was a wall and no paroches. In the second mikdash there was no Aron. The gemara concludes that it is referring to the second mikdash, so when it says "Aron" it means "makom Aron", and when it says "Bein Habadim" (between the poles) it means as if it were between the poles. Since the halacha of burning the ketores and sprinkling require kedushas ha'aron, the mishna talks as if the Aron was still there even in its absence because the kedushas ha'aron was still there.

After discussing this with R. Nota again (11/21/10) he pointed out that the gemara in menachos 27b explicitly says that the ability to burn ketores and do haza'os in the second beis hamikdash was a result of the kedushas hamakom of the aron. The only question would be whether this would require the aron to be hidden in the place that Shlomo designated for it, or whether the makom had kedusha even if the aron would be in the hands of the pelishtim. The simple reading of the gemara implies that it is simply a din in kedushas makom of the aron even without an aron.

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M'inyan L'inyan here is the summary of the shiur:

The Torah never refers to the mizbeiach inside as the מזבח הפנימי (that is loshon chazal), rather it is called the מזבח הקטרת (burning spices was everyday whereas the sprinkling dam ha'par was once a year). BUT after Betzalel makes it (Parshas Pekudei by revi'i), and places it in its place it is called מזבח הזהב. Why is it not called מזבח הקטרת in that one place?

In Parshas Vayikra (by par kohein moshiach) the Torah returns to call it מזבח קטרת הסמים. The Mishna in Menachos 49 says that only ketores works to be me'chaneich the mizbeiach, not with sprinkling the dam of the cow. In Parshas Vayikra regarding the sprinkling the dam of the cow on the mizbeiach, the Torah says it should be sprinkled על קרנות מזבח הסמים אשר לפני השם באוהל מועד. The gemara in Zevachim 40 asks why does the Torah have to say על קרנות מזבח הסמים since it already identifies the inner mizbeiach and not the outer by saying אשר לפני השם? The gemara answers that the sprinkling can only be done on the mizbeiach after it is nis'chaneich through the ketores as the mishna says in menachos. Meaning, the pasuk writing "mizbeiach ha'samim" is not to identify the mizbeiach, rather to tell you that ketores must be done first to sanctify the mizbeiach. The mizbeiach isn't essential for the burning of ketores as we see in zevachim that the ketores can be burned in the makom of the mizbeiach even in it's absence. Why is it called mizbeiach haketores? R. Nota explains that it is called mizbeiach haketores because that is the only way to be me'chaneich and sanctify the mizbeiach. Therefore, after the mizbeiach is made by Betzalel, before it was used, the Torah in Pekudei calls it מזבח הזהב because until it was nis'chaneich through ketores it couldn't be called the מזבח הקטרת. Only after the mizbeiach was nis'chaneich through the ketores could it be called again in Vayikra מזבח הקטרת.

The Brisker Rav held that the halacha of burning ketores in the absence of the mizbeiach is because the place itself had kedushas mizbeiach. The Meshech Chochma (Pikudei on the pasuk of mizbeiach) goes one step beyond the Brisker Rav. He agrees that the the halacha of burning ketores in the absence of the mizbeiach is because the makom itself has the kedushas mizbeiach. He continues by saying the din that when the mizbeiach is missing the ketores can be brought in the makom, only applies in the beis hamikdash but not the mishkan because in the mishkan there was no kedusha to the place of the mizbeiach. Now, if the Meshech Chochma is correct, the mizbeiach in the mishkan was actually essential for the ketores and that is the more obvious reason for it to be called mizbeiach ha'ketores (not necessarily because of chinuch). According to the Meshech Chochma the question would come back - Why would the Torah call it in parshas pekudei מזבח הזהב and not mizbeiach ha'ketores since the ketores is essential for it.

Rav Nota argues that the Brisker Rav and Meshech Chochma are wrong in assuming that you need a mizbeiach for ketores just that the place of the mizbeiach has status of mizbeiach (which allows the meshech chochma to differentiate between the mikdash and mishkan). He argues that the torah describes the halacha of ketores in Parsha Ki Tisa to be ונתת ממנו לפני העדות באוהל מועד, implying that you don't need any mizbeiach at all for ketores, so long as its burned in front of the Aron. Therefore even in the mishkan the din is true that you can bring ketores even in the absence of the mizbeiach so long as the ketores is being burned לפני השם - in front of the Aron. According to this approach, the inner mizbeiach is not called מזבח הקטרת because it is essential for ketores, it is not essential even in the mishkan. It is only called מזבח הקטרת because that is what is necessary to be mechaneich the mizbeiach. Therefore, it makes perfect sense that in one place in the Torah (Parshas Pekudei), after the mizbeiach was constructed but before it was sanctified through ketores that it is called the מזבח הזהב.

Horiyos 10b - Eating Korban Pesach B'achila Gasa

The gemara initially suggests that the case of ופושעים יכשלו בם is a person who eats the korban pesach לשם אכילה גסה. Depending on how we interpret the phrase "l'sheim achila gassa", the pertinent sugya will either be a lishmah/kavana issue, or will be a issue related to the appetite that is appropriate for eating kodshim. I raised this gemara in my sefer nasiach b'chukecha (pg. 178) and in the hashmatos to pg. 136 as it relates to the כוונה-לשמה issue. And in the hashmatos to pg. 93 how it relates to hiddur mitzvah and eating l'teiavon).

Basically, Rashi understands that the issue is a kavana issue. The idea of eating it achila gassa is to the exclusion of eating it l'sheim mitzvah. According to this approach the issue at hand is a lack of intent for the mitzvah, thereby leading the turei even to ask a contradiction in reish lakish. Why would reish lakish consider this a case of not fulfilling the mitzah in it's ideal state, yet fulfilling the fundamental mitzvah - Reish lakish holds that mitzvos require kavana and without intent he wouldn't be fulfilling any mitzvah at all. This question is addressed by the Beis Halevi (3:51:3). It seems that the language of the gemara לשם אכילה גסה rather than saying אכילה גסה is what compels rashi to explain the problem to be his intent rather than his action.

However, the Tosafos HaRosh argues on Rashi by asking that if the problem was merely his intent, then the gemara should say that he ate it שלא לשם מצוה and not focus on the achila gasa aspect? Therefore the Tosafos HaRosh explains that the issue was not what he was thinking but rather what he did. Generally one should be eating kodshim when he is not starving to fulfill the concept of למשחה כדרך שהמלכים אוכלים. It is more respectful for kodshim to be eaten when one is not starving, but one should also be eating it while he still has a desire for food. Eating kodshim when he is already full - לשם אכילה גסה is not an ideal way to fulfill the mitzvah. The Rashash on his own takes a similar approach to the gemara. See also the Maharatz Chiyus who explains exactly the opposite approach, that he should have eaten in while not starving, but he violated the ideal mitzvah by eating it while starving to break his starvation (this approach is very difficult to fit into the language of לשם אכילה גסה).

From the Tosafos HaRosh we learn a fascinating point regarding hidur mitzvah. The more one has a desire to do the mitzvah, even if the desire is motivated by physical desires (i.e. being hungry), and not by the fulfillment of the mitzvah, it would still qualify as hidur mitzvah. Therefore, one who eats kodshim after he is totally full and has no desire to eat any more and is only eating to fulfill the mitzvah, is not fulfilling hidur mitzvah.

Horiyos 6a - Safeik D'oraysa

The gemara is trying to figure out the status of a chatas that belongs to the tzibur when one or all of the members dies, whether it has a status of חטאת שמתו בעליה that must be killed. The gemara tries to prove that this concept doesn't apply to a korban of the public from goat that is sacrificed on Rosh Chodesh as a korban chatas from the money that was collected at the beginning of the year. The fact that we aren't concerned that one of the contributors died thereby rendering the korban invalid, indicates that we don't apply this concept to a communal korban. The gemara rejects this proof because by the Rosh Chodesh korban we aren't sure that someone died, but in the case we are dealing with (sacrificing a chatas for the generation of tzidkiyahu) we know that they have died. Meaning, that when we are in doubt we can bring the korban, but when we know for sure that a partner in this korban died, we can't bring it.

The Mi'lo HaRo'im asks, if when we would know that someone died it would invalidate the korban, now that there is a safeik that perhaps someone died, the korban should also not be brought because it is a safeik of bringing and invalid korban into the beis hamidash - why don't we invalidate the korban of Rosh Chodesh based on safeik d'oraysa l'chumra? The Mi'lo HaRoim answers this question by saying that we can use a chazaka that the contributors are still alive. But, he immediately asks that the chazaka only applies when there is a possibility that the contributors are alive, but by the time you are most of the way through the year, there have DEFINITELY been people who died?

Tosafos HaRosh asks this very question. Every single Jew contributed toward the korban, by the time the month of Adar rolls around there is no question that one of the contributors had died - how can this korban be brought? Tosafos HaRosh answers that although some people have definitely died, we aren't sure that this money that is being used for the rosh chodesh korban is from one of the contributors who died. Since there is a possibility that the money we are using for this korban is from people who are still alive, the korban can be brought. Why can we assume that? Because there is a chazaka that the contributor of this money that is being used is still alive, therefore using the chazaka that all contributors to this korban are still alive, the korban can be sacrificed.

Another possible approach that the Mi'lo HaRo'im rejects is that according to the Rambam that safeik is l'kula on a Torah level, one can be lenient that the contributors are still alive and sacrifice the korban. He rejects this because the Rabbonon are stringent about a safeik d'oraysa so they shouldn't have allowed the korban to be brought. The Mitzpeh Eisan on the other hand does consider this a valid approach. Perhaps the Rabbonon weren't machmir in this situation since it would prevent the ability to sacrifice the goat of Rosh Chodesh. He suggests that even according to those who are machmir for a safeik d'oraysa, that would only be for a d'oraysa prohibition that is explicit in the Torah but not for something like חטאת שמתו בעליה which is just a halacha l'moshe misinai to invalidate the korban - all would agree that safeik on halacha l'moshe mi'sinai is l'kula.

Horiyos 6a - Safeik D'oraysa

The gemara is trying to figure out the status of a chatas that belongs to the tzibur when one or all of the members dies, whether it has a status of חטאת שמתו בעליה that must be killed. The gemara tries to prove that this concept doesn't apply to a korban of the public from goat that is sacrificed on Rosh Chodesh as a korban chatas from the money that was collected at the beginning of the year. The fact that we aren't concerned that one of the contributors died thereby rendering the korban invalid, indicates that we don't apply this concept to a communal korban. The gemara rejects this proof because by the Rosh Chodesh korban we aren't sure that someone died, but in the case we are dealing with (sacrificing a chatas for the generation of tzidkiyahu) we know that they have died. Meaning, that when we are in doubt we can bring the korban, but when we know for sure that a partner in this korban died, we can't bring it.

The Mi'lo HaRo'im asks, if when we would know that someone died it would invalidate the korban, now that there is a safeik that perhaps someone died, the korban should also not be brought because it is a safeik of bringing and invalid korban into the beis hamidash - why don't we invalidate the korban of Rosh Chodesh based on safeik d'oraysa l'chumra? The Mi'lo HaRoim answers this question by saying that we can use a chazaka that the contributors are still alive. But, he immediately asks that the chazaka only applies when there is a possibility that the contributors are alive, but by the time you are most of the way through the year, there have DEFINITELY been people who died?

Tosafos HaRosh asks this very question. Every single Jew contributed toward the korban, by the time the month of Adar rolls around there is no question that one of the contributors had died - how can this korban be brought? Tosafos HaRosh answers that although some people have definitely died, we aren't sure that this money that is being used for the rosh chodesh korban is from one of the contributors who died. Since there is a possibility that the money we are using for this korban is from people who are still alive, the korban can be brought. Why can we assume that? Because there is a chazaka that the contributor of this money that is being used is still alive, therefore using the chazaka that all contributors to this korban are still alive, the korban can be sacrificed.

Another possible approach that the Mi'lo HaRo'im rejects is that according to the Rambam that safeik is l'kula on a Torah level, one can be lenient that the contributors are still alive and sacrifice the korban. He rejects this because the Rabbonon are stringent about a safeik d'oraysa so they shouldn't have allowed the korban to be brought. The Mitzpeh Eisan on the other hand does consider this a valid approach. Perhaps the Rabbonon weren't machmir in this situation since it would prevent the ability to sacrifice the goat of Rosh Chodesh. He suggests that even according to those who are machmir for a safeik d'oraysa, that would only be for a d'oraysa prohibition that is explicit in the Torah but not for something like חטאת שמתו בעליה which is just a halacha l'moshe misinai to invalidate the korban - all would agree that safeik on halacha l'moshe mi'sinai is l'kula.