Pesachim 21a - Is one in violation of owning chometz that they don't know exists?

Generally speaking we assume that בל יראה ובל ימצא have nothing to do with actually seeing or finding chometz. The braisa on 5b makes it clear that hiding chometz so that one doesn't see it, accomplishes nothing to avoid the issurim. However, in that context we only include in the issurim chometz that one is fully aware of. There is a big machlokes Rishonim (Tosafos 21a and Rosh 6b) whether one is in violation of בל יראה ובל ימצא on chometz that they are completely unaware of, even without being mevatel it.

The gemara on 21a says that if we were only told that one can leave chometz in a place where there is a חיה, that is because a wild animal has a tendency to hide the chometz, but a more domesticated animal that will not hide the chometz, rather leave it out in the open causing the violation of בל יראה ובל ימצא, we would think that it is forbidden to feed them prior to pesach. The gemara seems strange. How does the wild animal hiding the chometz help the owner avoid בל יראה ובל ימצא? Tosafos derives from here that any chometz which exists in a hidden place that the owner is unaware of is not subject to the issur of בל יראה ובל ימצא. Unlike בל יטמין which is assur because the owner knows where it is, here the owner doesn't know where it is. Based on this, Tosafos explains the question of the gemara 6b, why must one be mevatel on the night before erev pesach, just be mevatel when you find it? The gemara answers you may find it after it already became issur when it is already too late to be mevatel. Tosafos understands that the gemara knew all along that we were speaking about finding it once it has already become assur, yet being mevatel at the point when you find it would be sufficient because until you find it there is no violation and when you find it you will immediately be mevatel. To which the gemara answers that after the chometz becomes assur bitul is not longer a possibility.

However, the Rosh 6b explains that by the Torah writing לא יראה rather than  לא תראה it implies that one cannot have chometz in any area that it is fit to be seen, even if now it is not known about and not seen. Therefore, if a person was lax on bedikas chometz and found chometz on Pesach that they were not mevatel, according to the Rosh they were in violation of בל יראה ובל ימצא the entire time. Whereas Tosafos will hold that they were not in violation until they find it since they didn't know about it, and even when they find it they are not in violation so long as they are busy trying to destroy it (as tosafos writes 29b d.h. rav ashi).

According to the Rosh, the gemara 6b which suggests to be mevatel when you find it was assuming that one would find it prior to the z'man issur when bitul was still possible, to which the gemara is mechadesh that we are concerned that he will find it after the z'man issur. Therefore, without being mevatel in advance he will be in violation from the moment of the z'man issur even though he has not idea that it even exists.

Pesachim 7a - Bracha of L'hachniso

The gemara says that the "lamed" implies that one is making a bracha on a mitzva that they are about to do, however, the language of "al" is a machlokes whether it has an implication of a mitzvah that one is about to do, or whether it is more applicable to a mitzvah that has already been done. Another implication that the gemara assumes is that if made with a "lamed" the implication is that the obligation is specifically on the person making the bracha more than anyone else, whereas the language of "al" is more appropriate when the person doing the mitzvah is not the person on who the primary obligation falls. When the gemara concludes that on biur chametz we make "al", the gemara is paskening like the opinion who says that "al" also implies a mitzvah that you are about to do. Rashi understands that the gemara also retracts from the second assumption and holds that even if the one making the bracha is the one who is has the primary obligation, he still makes "al". Rambam disagrees and maintains that when the father does the milah or someone shechts his own korban pesach, he makes la'mul and lishchot, not "al hamilah" and "al ha'shechita".

Based on these rules that a bracha made with a lamed is always done before the act, Tosafos cites the Rashba who says that the father of a child getting a bris should make the bracha of li'hachniso prior to the milah. Since li'hachniso is made with a lamed, it must be made before the bris. Furthermore, the gemara 7b says that all brachos should be made prior to doing the mitzvah. Rabbeinu Tam disagrees because the gemara in Shabbos implies that li'hachniso is made after the milah. Rabbeinu Tam explains that the nature of the bracha of l'hachniso is not a birchas hamtizvah on the mitzvah that is presently being done, rather it is a birchas ha'shvach to praise and thank Hashem, and its function is to show that the bris is being done li'shma, not for medical purposes or chas v'shalom avoda zara purposes.

Presumably, Rabbeinu Tam's approach explains why the bracha doesn't need to be made prior to the mitzvah both from the perspective of the language "li'hachniso" and from the perspective of all brachos need to be made prior to the mitzvah (כל הברכות מברך עליהן עובר לעשייתן). However, Tosafos adds that the reason it doesn't need to be made prior to the mitzvah is that the bracha is only made before when the one doing the mitzvah makes the bracha, but here since the father is not actually doing the bris, there is no halacha of כל הברכות מברך עובר לעשייתן.

The question is why Tosafos needs that addition. Once Tosafos establishes that this is not a birchas hamitzvah, it should follow that it doesn't need to be made prior to the mitzvah even if the one doing the mitzvah makes the bracha. Clearly, Tosafos holds that being a birchas ha'shevach and not a birchas hamitzvah only solves the language issue of using a lamed "li'hachniso", but doesn't address the issue of making brachos prior to the mitzvah because even birchas hashvach should be made prior to the mitzvah. However, the Maharsha points out that the Rosh uses the sevara of being a birchas hashevach to solve the problem of עובר לעשייתן also. Therefore, there is a machlokes Tosafos and Rosh whether birchas ha'shevach need to be prior to the mitzvah.

Tosafos proves that the bracha of li'hachniso can be made after since it is made by someone else from birchas eirusin that we make after since it is made by someone else. The Rambam (Ishus 3:23) holds that birchas eirusin is a standard birchas hamitzvah and is therefore made before the mitzvah is done. The Rambam writes that making the bracha after the kiddushin is a bracha l'vatala. The Ra'avad seems to agree that it is a birchas hamitzvah but says that it should be made afterward since there is a concern that they will not go through with it. Similarly, li'hachniso is made afterward since there is a concern that the mohel won't do the bris. The Ra'avad essentially says that same as Tosafos that when someone else is doing it you don't need to make the bracha before, except that the Ra'avad gives a practical reason for this that we are concerned that they will not go through with it.

Pesachim 2a - Bedika and Bitul

The Ran elaborates at the beginning of the Masechta to explain that on a Torah level either bedika (and destroying) OR bitul work to prevent the violation of בל יראה ובל ימצא. The fact that bitul works alone is explicit in the gemara 4b, the Ran assumes that just as bitul works alone so too bedika (and destroying) works alone. Although there is a girsa in the Rambam explained by the kesef mishna that implies that bitul may only work on chometz that one is not aware of and destroying is necessary for chometz that one is aware of, the Ran rejects this approach. Therefore, on a Torah level one only needs either bedika or bitul. Nonetheless, the Ran explains that the Rabbonon came along and insist that one do both bedika (and destorying) and bitul. The reason that bedika (and destroying) is not sufficient m'drabonon, the gemara 6b explains הבודק צריך שיבטל שמא ימצא גלוסקא יפה ודעתיה עלויה. Meaning that without bitul we are concerned that you may find a loaf of bread or cake and be lax from immediately destroying it, causing a violation of בל יראה. The gemara is clear that by being mevatel in addition to the bedika, one avoids this concern of גלוסקא יפה, because even if they don't destroy it immediately, their bitul remains in place and is effective even on this loaf. However, the gemara never explains the other direction. If one is mevatel, why is it also necessary to do bedika?

Tosafos explains that the Rabbonon were concerned that if one relied on bitul alone and maintained the chometz in their physical possession, they would inadvertently come to eat from the chometz. Although we don't find this concern by other form of issurei achila and not even by other forms of issurei hana'ah, Tosafos explains that chazal were extra strict by chometz either because one is accustomed to eating chometz all year, or because they modeled themselves after the Torah that aside from the issur ha'na'ah imposes a "harchaka" type issur to also forbid owning the chometz to even own (Rav Yosef Engel in Lekach Tov has a list of d'oraysa harchakos - this being one of them). The Ran adds that another reason to compel the Rabbonon to impose a concern that one will eat it, is because eating chometz is kareis which is more severe than other prohibition (Tzlach explains why Tosafos didn't consider this reason).

Furthermore, the Ran says that chazal imposed the requirement to search and destroy on top of the bitul to ensure that one means the bitul seriously. By taking action to support the bitul, it is clear that the bitul is no mere lip service but one really means what they are saying. The bedika essentially supports the bitul and makes sure that one is serious about it.

Another approach as to why Chazal imposed bedika even after bitul is cited by the Bartenura. He writes that we don't rely on bitul alone because there is a concern that one will find a nice loaf of bread and retract from his bitul. This approach if very difficult because it seems to be contradicted from the gemara. The gemara 6b implies that שמא ימצא גלוסקא יפה is only a concern when one does bedika without bitul, but bitul avoids this concern. According to the Bartenura, this is a concern when only doing bitul and is somehow avoided by the addition of bedika!

The Rashash and Chasam Sofer both offer approaches to explain the Bartenura. The Rashash writes that if one were to merely do bitul it would be very common to find a nice loaf and therefore there is a concern that after finding loaf after loaf, they will eventually retract from their bitul. By imposing bedika they reduced the chances of finding a גלוסקא יפה. Nevertheless, the gemara says that by just doing bedika we are still afraid that one will find a loaf and procrastinate before destroying it. Bitul helps to avoid the violation during that procrastination. The Chasam Sofer (chiddushim) explains that really the Bartenura agrees with Tosafos that if one just does bitul we are concerned they will find a loaf and want to eat it, just that Tosafos says that the concern is that they will actually eat it, and the Bartenura holds the concern is that the interest in eating it will in and of itself be a retraction of the bitul. By imposing bedika, the bitul itself is strengthened because it reminds a person not to be zocheh in the chometz and not to retract from the bitul. Yet, bedika alone isn't enough because one can then violate by finding a loaf even without intending to be zocheh in it, but by doing bitul they avoid that. According to the Bartenura, both bedika without bitul and bitul without bedika cause us to be concerned for שמא ימצא גלוסקא יפה, but doing both avoids the concern.

Eiruvin 104 - Making Noise on Shabbos

The gemara says that according to Ulah it is forbidden to knock on a door on Shabbos because it is a violation of making noise. Rabba argued and held that it is permitted because only when it is done for the purpose of song is it forbidden. Even according to Rabba, it is not only actual music which is a problem because the gemara indicates that even the sound of water drops at a consistent rhythm that would tend to put someone to sleep is forbidden according to everyone. Therefore, Rashi explains that anytime the sound is soft and consistent - כעין שיר בנעימה ובנחת, it is assur.

Tosafos quotes a machlokes between Rabbeinu Chananel and the Ri"f whether we pasken like Ulah that any sound is forbidden, or like Rabba that only with a rhythm and beat would it be assur. Shulchan Aruch (338:1) paskens like the more lenient opinion and therefore permits one to knock on a door for the purpose of gaining entry since it is not at all similar to a song. However, the definition of shir is open to include even very minor forms of song. The Shulchan Aruch (339:3) writes that it is forbidden to clap or bang or rattle a nut to quiet down a child because of a gezeria שמא יתקן כלי שיר. Even the consistent sound of a rattle would be included in shir. It seems that the type of sound that we don't consider to be a shir is when it's done for the purpose of getting attention, rather than for the enjoyment of the sound.

The Biur Halacha (338: d.h. aval) cites the Gr"a who holds based on the Yerushalmi like Rabbeinu Chananel who follows the opinion of Ulah and forbids any form of noise making. The Biur Halacha points out that even according to the Gr"a who would forbid one to knock on a door on shabbos, would permit it if it were done כלאחר יד. The Shulchan Aruch (339:3) writes that even when clapping for music would be permitted if done כלאחר יד, therefore even if we are going to be machmir with making any noise, it would at least be permitted if it were done כלאחר יד even though it is being done for the purpose of making noise. However, the Biur Halacha himself (339) questions this heter of כלאחר יד and limits it to specifically clapping, but would not allow other forms of rhythms even if done כלאחר יד. Therefore, it isn't so clear why he assumes that the Gr"a would permit knocking on a door when done כלאחר יד since the entire heter may only apply to clapping. Apparently, any form of noise that one produces through clapping or banging is included in the heter of כלאחר יד. Based on this, one who bangs on a table to create a beat, if done כלאחר יד would be permitted (according to the shulchan aruch, but obviously not according to the Gr"a).

The Rama introduces a new chumrah. Although when not done for music or a rhythm he agrees with the Shulchan Aruch that it's permitted, if it is being done through a kli that is designed to make noise, even not a rhythmic noise, it is forbidden. Based on this the Rama holds that it is forbidden to use a door knocker on shabbos. The Mishna Berura quotes from the Beis Yosef that the rationale is that when noise is made with a kli that is designated for that purpose we're concerned that maybe he will intend to make music. The Biur Halacha points out that the Rambam in the pirush hamishnah permits the use of door knockers, not like the Rama. The Rambam writes:

והקול הנשמע לגלגל בעת השאיבה אין אוסרים אותו, וכמו כן אין אוסרין להקיש בשלשלת הפתחים והדומה להם, אבל מה שהוא אסור מן הקולות אינו אלא מה שהוא כקול של שיר, כלומר שיהיה לו נעימות על הסדר, והוא אמרם לא אמרו אלא בקול של שיר בלבד

However, it is not clear to me that the Rambam is permitting door knockers that are made specifically for the purpose of noise. Perhaps he is only permitting the rattling of a chain that was fixed to the door for the purpose of locking the door. How does the Biur Halacha know that the Rambam means to even permit a kli that is designated for the purpose of making noise?

Eiruvin 96a - Women in Non Time-bound Mitzvos

The gemara tries to prove from the fact that Michal bas Shaul would wear tefillin that tefillin must me a mitzvah that is not bound by time, therefore women would be obligated. That would explain why the Rabbonon allowed her to wear tefillin and didn't protest. But, if tefillin was a time-bound mitzvah, the gemara assumes that chazal should have protested against Michal wearing tefillin.

Two things need to be explained in this assumption. The first is something that both Rashi and Tosafos struggle with. Why does the gemara assume that if it were a time bound mitzvah, chazal would protest against women wearing tefillin? Secondly, why does the gemara assume that if it were not a time bound mitzvah, everything makes sense. If it were not a time bound mitzvah, everyone would be obligated to wear tefillin, not just michal!

Regarding the first issue, Rashi writes that for women to do mitzvos that they are not obligated in is a violation of bal tosif. Rashi seems to mean that it is a d'rabonon violation of seeming like a bal tosif. However, to avoid Tosafos question as to how we find Hilni sitting in a Succah, the Gaon Yaakov explains that perhaps it is only a problem of bal tosif by mitzvos that are obviously being done only for the sake of the mitzvah, to the exclusion of succah which is not as recognizable that she's was doing it for the sake of the mitzvah (rather for the sake of being mechaneich her children to sit in a succah). Tosafos has another approach. Normally we encourage women to perform time bound mitzvos and according to Rabbeinu Tam even allow them to make a bracha on it. However, by the mitzvos that are particularly mentioned in our gemara - Tefillin, aliya l'regel, semicha and blowing shofar, there is a "risk" by each of them of some violation which causes chazal to discourage one who is not obligated from doing these mitzvos. By tefillin there is a risk of not maintaining a sufficiently clean body, by aliya l'regel there is an impression of bringing chulin l'azara, by semicha it is tantamount to avoda b'kodshim, and blowing shofar is an issur d'rabonon. 

The second issue is addressed by the Gaon Yaakov. Why does the gemara assume that if it were not a time bound mitzvah, everything makes sense. If it weren't a time bound mitzvah then all women would need to wear tefillin, not just michal? The Gaon Yaakov explains that Chazal understood that even if women were technically obligated in tefillin, Chazal were gozer on them not to wear tefillin due to the difficulty of maintaining a clean body. However, if m'doraysa women were obligated, it would make sense that some outstanding women such as Michal would make an effort to do it and it would not be discouraged by chazal. This seems to be the gemara's assumption. But, this still requires some more explanation. If women and men would be equally obligated in the mitzvah of tefillin, why would chazal exempt women from this mitzvah but mandate men to perform this mitzvah? Is their assumption that biologically it is somehow easier for men to maintain a clean body than it is for women or perhaps they felt that men would take it more seriously than women? Either way it doesn't seem that there would be a halachic difference between men and women, it would only be a practical difference.

Eiruvin 96a - Ba'al Tosif When Intending NOT To Fulfill The Mitzvah

The gemara suggests that according to Rav Meir it would be forbidden to put on two pair of tefillin on Shabbos even though one is not intending to fulfill a mitzvah and even though there is no mitzvah of tefillin on Shabbos, because R. Meir holds that one can be in violation of ba'al tosif even not in the time of the mitzvah, even without kavana to be yotzei. The gemara challenges this assumption - ועוד הישן בשמיני בסוכה ילקה. Meaning, if it is indeed true that one can be in violation of bal tosif even after the mitzvah is done, even without intending to fulfill the mitzvah, one should receive malkus for sleeping in the succah on the night of shemini atzeres (in eretz yisroel). It is not clear what source the gemara is asking this question from. Perhaps that is true that according to Rav Meir one would receive malkus for sleeping in a succah the night after succos? Rashi explains that the question of the gemara is coming from the minhag in chutz la'aretz to sleep in the succah on שמיני ספק שביעי, the night of shemini atzeres. How can we sleep in the succah on shemini atzeres night and not be concerned for violating bal tosif? Rashi explains that the answer must be that since we are only intending to fulfill the mitzvah of the tzad that it is still succos (and not yet shemini atzeres), the intent helps to avoid bal tosif. Therefore, according to Rashi, the gemara is saying that we cannot explain that according to Rav Meir one violates bal tosif after the time of the mitzvah, even without intent, because if that were true, we couldn't sleep in the succah on shemini atzeres.

In my sefer Nasiach B'chukecha (page 277) I asked a question on this sugya. Based on Tosafos in Succah 39a and other rishonim who hold that if one explicitly intends NOT to be yotzei, they are not yotzei, perhaps the reason we can sleep in the succah on the night of shemini atzeres is because our intent is that if it is not succos anymore we are intending NOT to be yotzei, thereby avoiding bal tosif. Meaning, even if assume that Rav Meir holds that not intending wouldn't help to avoid bal tosif, intending NOT to be yotzei should avoid bal tosif? The Gaon Yakov asks this question. He explains that even if we accept that according to the opinion that מצות א"צ כוונה, intending NOT to be yotzei would allow one to not be yotzei the mitzvah, it wouldn't help to avoid bal tosif. He doesn't explain why there should be a distinction. However, it seems that the distinction is simple. The rationale as to why one doesn't fulfill a mitzvah when they explicitly intend not to is that we can't force people to fulfill mitzvos. If you don't want to fulfill a mitzvah, you aren't in fulfillment of that mitzvah. This rationale only helps to avoid the fulfilling of a mitzva, but would not help to avoid the violation of bal tosif.

However, the Gaon Yakov limits this sevara to the opinion who holds that to violate bal tosif שלא בזמנו לא בעי כוונה. Since not having intent to be yotzei doesn't avoid bal tosif, intending NOT to be yotzei may also not avoid bal tosif. But according to the conclusion of the gemara in Rosh Hashana that לעבור שלא בזמנו בעי כוונה, one only violates after the z'man when they have kavana to be yotzei the mitzvah, having kavana not to be yotzei should work even within the time frame of the mitzvah. Therefore, the Gaon Yakov paskens l'halacha that even within the time of the mitzvah one can avoid bal tosif by intending NOT to be yotzei. However, the Magen Avrohom (34:3) and Gr"a hold that intending not to be yotzei doesn't help at all to avoid the violation of bal tosif.

Eiruvin 85b -86a - Having a Tefisas Yad in the House

The Mishna says that if a ba'al habayis has a tefisas yad in the homes that he lends or rents out, they don't need an eiruv to join them together. The gemara tells a story of a wealthy person who lent out many homes in his chatzer but retained a place for keilim in each one thereby circumventing the need for an eiruv.

Regarding the types of items that qualify as a tefisas yad, the gemara says a rule that anything which isn't muktzah and may be moved on shabbos doesn't qualify as tefisas yad, but things that are muktzah do qualify. Rashi explains why non-muktah items aren't considered a tefisas yad - דאי בעי שקיל ושדי ליה לבראי.

It isn't clear from Rashi whether he means that we are concerned that the owner will remove the items, or whether the renter will throw out the items. In other words, are we speaking about a case where the owner has legal rights to leave the items in the renters property, just that we are still afraid that he may need his items and remove them, so we insist that they be muktzah; or does the muktzah item allow us to consider the owner to have a tefisas yad even if he has no rights to actually leave his item in the renters home? 

The Mishna Berura (370:11) says that the owner must legally retain rights to leave items at least in some small corner or section of the renters home. The Sha'ar Hatziyun (8) cites the Mordechai and Ritva as the source. The Bach understood from Rashi that even if the renter has the right to throw out the item, it qualifies as tefisas yad since the item cannot practically be moved on shabbos due to its muktzah status. The Sha'ar Hatziyun disagrees with the Bach and says that Rashi means that the item must be muktzah to prevent the owner from removing the item, but in addition the owner must have legal rights to actually store the item there.

Based on this halacha we generally assume that in an apartment building or complex in which the apartments are rented out, there is no need for an eiruv since the owner has a tefisas yad by the refrigerator or oven that he has in the apartment. In light of the halacha above, it must be a situation in which the renter doesn't have the right to discard the refrigerator and oven, and instead purchase one of his own. If the owner for example tells the renter that the oven is there for his convenience, but it is an old oven so if you want you can throw it out and purchase your own, it would not qualify as a tefisas yad.

Eiruvin 83b - Why Shiur Challah Matches The Shiur of Mann?

The gemara says that the amount of bread that one needs to knead in order to be chayev in challa is 1/10 of an Eifa which is the shiur of an Omer. The way the Torah articulates this is by saying עריסותיכם, meaning the amount of עיסה that they were accustomed to eating in the midbar. Why is the Shiur to be Chayev in Challa dependent on the amount of Mann that they were eating in the midbar?

It seems to me that the entire concept of separating challa is to remind us that our primary sustenance comes from Hashem. By connecting the mitzvah of Challa to the Manna we are reminded that the same G-d who made the miracle of bread falling from the sky in the midbar, continues to make the miracle of wheat sprouting from the ground after they enter Israel. After yerusha v'yeshiva when they start to live non-miraculous lives, eating from the toil of their labor, they need to be reminded to separate Challa for Hashem specifically when they eat the amount that was eaten in the midbar. By connecting the dots between bread from the ground and the Mann from the heaven they are able to continuously be reminded of the miracle in the midbar, and recognize that a natural miracle of bread coming from the ground is no less a miracle. The concept is similar to the Ramban's explanation at the end of Parshas Bo where he writes that Hashem doesn't perform obvious miracles in every generation, therefore we are required to remember and invoke the miracles that were performed long ago to remind us that Hashem is the כל יכול.

Eiruvin 69 - Mechalel Shabbos On A Drabonon

The gemara makes a distinction between one who violates shabbos privately vs. one who violates publicly for the purpose of being able to be mevatel reshus. At first the gemara thinks that shabbos is no different than any other violation where according to R. Meir one who is chashud for one is chashud for all, and according to the Rabbonon one is only chashud for what they are known to violate. However, Rav Ashi concludes that a mumar to violate shabbos publicly is considered a mumar for the entire Torah just as a mumar for avoda zara is. We also see clearly from Rav Yehuda Nesia in our sugya that if one is embarrassed to be mechalel shabbos in the presence of an adam gadol, even though they are mechalel shabbos publicly, they don't have a status of a בפרהסיא מחלל שבת. Rashi explains the sugya on the top of 69a regarding the person who carried into the chatzer on shabbos to be an issue of mumar (unlike tosafos who says that the issue is whether after carrying to the chatzer on that shabbos one can be mevatel reshus). Tosafos d.h. ka'an, points out that according to rashi even a mumar to violate shabbos on a drabonon is considered a mumar. R. Akiva Eiger (Y.D. Shulchan Aruch 2,5) has a long discussion about this issue. Regarding why we consider a mumar to be mechalel shabbos publicly to be a mumar for everything, Rashi explains in Chulin 5a that a mechalel shabbos publicly is kofer in ma'aseh breishis - ה במעשה בראשית"הקב והמחלל שבת כופר במעשיו ומעיד שקר שלא שבת. Based on this we can understand why Rashi would hold that even a d'rabonon violation of shabbos can consider a person a full fledged mumar. It is not the severity that Shabbos has over other issurim that makes it worse, rather it is what Shabbos represents. Therefore, even a d'rabonon violation of Shabbos, when done publicly is essentially making a statement that one is kofer in ma'aseh b'reishis. On the other hand, it would seem that according to Rashi, the concept of shabbos is what makes it different, not the severity. Therefore, one who would me mechalel yom tov or even yom kippur publicly would not assume a status of mumar since their is no association with being kofer in ma'aseh breishis. Had the issue been just one of severity, it would be possible to argue that Yom Kippur and maybe even yom tov are severe enough for this purpose to be like shabbos. But, since the issue is not one of severity, it should only apply to shabbos. There is a teshuva of the Maharam Mi'Rottenberg who says that even yom tov and yom kippur are considered like shabbos for this purpose that one who violates publicly would be considered a mumar for everything. Another point that evolves from Rashi is that Tosafos asks why should a tzidoki and kusi be better than a mumar, they also violate at least the d'rabonons of shabbos even publicly. To which Tosafos answers that although they have a theology of rejecting d'rabonons, practically speaking they keep the d'rabonon so as not to upset the prushim. This implies that the underlying difference between the tzedokim and the prushim was not in their actions, rather in their theology. Therefore, one who doesn't believe in Torah min Hashamayim as the Rambam describes, even if they keep mitzvos meticulously, they would at least be no better than the tzedokim.

Eiruvin 82a - Making an Eiruv Only For a Mitzvah

Rav Yosef makes a statement that is somewhat meduyak in the mishna, that one can only make an eiruv techumin for a d'var mitzvah. Both the Rambam and Rashba (avodas hakodesh) pasken like Rav Yosef that one can only make an eiruv for a d'var hareshus. However, the Rambam (6:6) holds that although one is only allowed to make an eiruv for a d'var mitzvah, if they were to be me'areiv for a d'var ha'rshus it would be binding. The Rashba disagrees and holds that even bidieved, if done for a dvar harshus, it is not binding. The Rashba then qualifies and says that this is only if he were to be me'areiv with bread, but one who is me'areiv b'raglav by being at the edge of the techum when shabbos begins, that can be done even for a d'var ha'rshus. The Gaon Yaacov rejects the approach of the Rashba (and Rabbeinu Yehonasan) who say that one can be me'areiv b'raglav for a d'var ha'rshus even lichatchila. The rationale to be more lenient by being me'areiv b'raglav is because they consider that to be the "ikar eiruv". Therefore, it should follow that according to R. Meir 49b who says that ikar eiruv is with bread, one can be me'areiv with bread even for d'var harshus, which is against our mishnah. Therefore, the Gaon Yaakov concludes that there is not distinction between being me'areiv b'raglav and using bread, it can only be done for a d'var mitzvah.

There is another major machlokes Rishonim. Rashi comments on the statement of only being me'areiv for d'var ha'rshus that it is not merely a din in what one is making the eiruv for. Rather, Rashi writes that one cannot use an eiruv for anything other than a d'var mitzvah. Rashi implies that even if one made an eiruv for a d'var mitzvah, they cannot use the eiruv once it is made for a d'var harshus. The Tur (415) disagrees and writes that once the eiruv is made for a d'var mitzvah, it can be used for a d'var ha'rshus. The machlokes between Rashi and the Tur is whether the din of אין מערבין אלא לדבר מצוה is a din in the making of an eiruv (Tur) or the use of an eiruv (Rashi). The Gaon Yaacov explains that Rashi must hold like the Rashba that if one would make an eiruv for a d'var harshus it wouldn't be binding even bidieved, because if making an eiruv for d'var ha'rshus works bidieved, when it is done for a dvar mitzvah it should certainly be usable for a d'var ha'rshus since it is already bidieved. In other words, if we are going to say like the Rambam that bidieved it works if done l'dvar ha'rshus, we would surely permit one to use the eiruv l'dvar ha'rshus when it was done for a d'var mitzvah.

Tosafos (d.h. kattan) asks that since we only allow an eiruv l'dvar ha'rshus, how can we talk about using the eiruv for a young child, what mitzvah can be possibly do? Tosafos answers: 1. the child is so connected to the mother that she can't go without him, therefore bringing the child with her is part of the d'var mitzvah. 2. since there is a mitzvah of chinuch to train a child to do mitzvos, it qualifies as a d'var mitzvah when the child is being taken to do nichum aveilim or another mitzvah.

Had Tosafos held like the Tur that the din of an eiruv l'dvar mitzvah was only in the making of an eiruv, Tosafos should have no question. Once the mother makes an eiruv l'dvar mitzvah, it is usable even for a d'var ha'rshus, therefore there is no need to associate a mitzvah with the child going. The fact that Tosafos needs to associate a mitzvah with the child, or make the mothers ability to do the mitzvah dependent on the child being able to go, implies that they hold like rashi; even after an eiruv is made l'dvar mitzvah, it cannot be used for a d'var ha'rshus, only for a d'var mitzvah.

The Rama (415) paskens like the Tur, and the Shulchan Aruch (in line with the Rama) paskens like the Rambam. Therefore, they hold that if one made an eiruv l'dvar mitzvah, they can travel for a d'var ha'rshus, AND that if one made an eiruv for a d'var ha'rshus, it is binding bidieved. The Sha'ar Hatziyun (11) explains that by the Shulchan Aruch paskening like the Rambam that even when done for a d'var r'shus it works bidieved, he is automatically incorporating the opinion of the Tur that certainly when done for a d'var mitzvah it can be used for a d'var ha'rshus. It would seem based on this that the opinion of the Tur that when done l'dvar mitzvah it can be used for d'var ha'rshus would disagree with the Rambam and hold that if done originally for d'var ha'rshus, it would not work (otherwise the Tur should say a bigger chiddush). Therefore, it should follow that by the Rama citing the Tur, he is rejecting the Rambam and would hold that if one made an eiruv for a d'var ha'rshus it wouldn't even be binding bidieved. However, it is possible that the Tur and Rama really agree with the Rambam, and they are coming to say that one may lichatchila make an eiruv when they know that they will need it both for a d'var mitzvah and a d'var ha'rshus. v'dok!

Eiruvin 81 - Fixing the Bread with a Toothpick

The gemara talks about using a broken loaf for an eiruv. The gemara says that if it is missing the shiur challah which is 1/24 for a ba'al habayis and 1/48 for a baker it is still considered whole. The Gaon Yaakov explains that the gemara is not allowing the loaf to be missing up to 1/24, rather the gemara is saying that if it was taken for the mitzvah of hafroshas challah, then it is allowed to be missing up to 1/24 for a ba'al habayis and up to 1/48 for a baker. Another halacha that the gemara mentions is that one can reattach the missing piece using a toothpick provided that he does a good job and it isn't obvious that it has been broken.

Do these halachos also apply to lechem mishna on shabbos?

The Sha'arei Teshuva 274:1 cites the chacham tzvi 62 who says that if the lechem mishna is missing a piece it is dependent on a machlokes R"I and Rosh. The R"I cited in Tosafos holds that even missing the smallest amount doesn't qualify as a shaleim for eiruv unless the missing piece was taken for the mitzvah of challah, and the chacham tzvi assumes that the same applies to lechem mishna. Whereas the Rosh holds that so long as it is missing less than the shiur challah, even if not taken for the mitzvah of challah, it still qualifies as a shaleim for eiruv (so long as it is missing less than challas nachtom which is 1/48) and the chacham tzvi assumes that the same would apply to lechem mishnah.

According to the approach of the Chacham Tzvi that we can learn halachos of shaleim by lechem mishna from eiruv, it would seem that fixing with a toothpick can also be learned from the halacha of eiruv. However, the Maharatz Chiyus writes that by eiruv the reason why it is repairable is that the problem with using a perusah is that it causes eivah, therefore so long as it isn't recognizable that it has been broken because the toothpick repair makes it look like a shaleim, there won't be any eiva. Based on this approach, lechem mishnah which requires shaleim because of chashivus, not just because of eivah, we can't learn from eiruv that fixing with a toothpick is adequate. In truth, even the chacham tzvi ends his teshuva by pointing out that by eiruv the issue is eivah and says that he is being medayek from the mishna that refers to it as a shaleim. Since it qualifies as a shaleim, it should still be a shaleim for lechem mishna also. However, regarding  din of fixing with a toothpick, we don't see that the mishna refers to that as a shaleim, therefore perhaps even the chacham tzvi would agree with the maharatz chiyus that we can't learn that din from eiruv.

Eiruvin 63a - Giving All One's Tzedaka to One Poor Person

The gemara says that one who gives all his gifts to one kohein will bring famine into the world. The implication clearly is that one must distribute the matnos kehuna among multiple people. The Maharsha asks that throughout shas we find a concept of מכירי כהונה which means a kohein who is accustomed to always receiving the gifts from a particular person, clearly implying that this was an accepted system. The Maharsha suggests that perhaps the prohibition of giving all gifts to one kohein is only for a king like Dovid who presumably had enough to distribute to many kohanim. But for a regular person who generally has enough for only one kohein, he can always give everything to that kohein. However, the Maharsha points out that our gemara certainly doesn't seem to hold that because it makes a rule for everyone and not just for kings.

The Rashash points out that this halacha is not codified in the Rambam and suggests that perhaps it is because the concept of מכירי כהונה that we see throughout shas contradicts this gemara and overrides it. Based on the Rashash it would seem that lma'aseh it is fine to give all one's matnos kehuna to one kohein.

Would we apply this concept to tzedaka as well? Is there an issue with one who wants to give all his tzedaka to one particular poor person?

The Nodeh Beyehuda (kama, y.d. 81) uses this gemara as a source to not give sandakaos to the same person twice because there is a concept to distribute wealth and zechuyos to multiple people. If we would stretch this concept to sandakaos, it should certainly apply to tzedaka. The Nodeh Beyehuda seems to understand that we would pasken like this gemara and therefore we should say the same thing by tzedaka. Whereas, the Rashash seems to hold that we don't pasken like this gemara and therefore one can choose a poor person to whom he gives all his tzedaka.

The Magen Avrohom (Hil. Purim 695:12) writes that the reason that one must give matanos la'evyonim to two people as opposed to mishloach manos which is only to one person is because by aniyim there is a mitzvah to distribute to multiple aniyim rather than giving all the tzedaka to one individual. Presumably, the Magen Avrohom would draw his principal from our gemara, understanding that we do pasken like this, not like the Rashash. To elaborate on this point, the machatzis hashekel cites that Bach who says that if one has 100 gold coins, it's better to give 1 to 100 aniyim, rather than giving 100 to one because by giving to 100 aniyim you give life to 100 souls. The rationale that is offered by the Bach only makes sense if one would be giving a significant amount to each ani and enough to tend to their needs. However, if one has $100 which may be a significant give for 1 ani but not for 100, it would seem that even the bach and magen avrohom may agree that it is better to give it all to one person rather than distribute it to 100 poor people. The Pri Megadim seems to disagree with the magen avrohom and says that it is merely a technical diyuk from the pasuk which says matanos la'evyonim, implying multiple aniyim, but would not be a rule for tzedaka in general.
However, in Hilchos Tzedaka 257:9 the shulchan aruch writes that one should not give all his tzedaka to one poor person and the Be'er HaGola cites our gemara as the source. Clearly, the Shulchan Aruch holds that we do pasken like our gemara and doesn't consider the din of makirei kehuna to contradict it. Perhaps it is because makirei kehuna is assuming that one barely has enough matanos for one kohen, but if the has enough to provide many with a significant amount, he should be distributing his matanos and his tzedaka.

Eiruvin 59a - Levels of Trust

The Mishna says that a shifcha is believed to testify about the border of the techum shabbos since it is only d'rabonon. Tosafos d.h. afilu, explains based on a gemara in kesubos 28a that a child is believed only after he becomes a gadol to testify about what he witnessed as a child regarding the edge of the techum (Tosafos has two opinions whether he is believed alone or only with another adult). It is clear from Tosafos that although a woman is believed, and even a shifcha, a child is not.

Tosafos d.h. u'techumin, asks why the mishna allows us to believe a woman only because the entire prohibition is d'rabonon, implying that on a d'oraysa a woman isn't believed. Why is this any different that trusting a woman for shechita, nikur and teruma? Tosafos answers that on a d'oraysa a woman is only believed when it is בידה, meaning she is in control of doing a proper shechita, but she is not believed to testify about facts that are out of her control (such as techum, had it been d'oraysa). The rationale seems to be that a woman is not believed to testify about facts because we are concerned that she may not have been meticulous to notice all the details, but when she actually does something and has control of a situation, she is believed to say it was done properly. However, Tosafos points out that the gemara in Pesachim 4b implies that women are only trusted to do bedikas chometz because it is d'rabonon, implying that even though it is בידה she would not be believed if it were d'oraysa (such as a case where there will be bedika without bitul). Tosafos explains that an act like searching for chometz which demands extra diligence and attention, and is a great tircha, a woman is not believed because she will be moreh heter to make assumptions (such as if there is no chometz in one place, there is probably no chometz in another without properly checking). Yet, since it is only d'rabonon, she is believed. In short, on a d'oraysa a woman is believed if its בידה, not if it is out of her control. Even if it is בידה she is only believed if it doesn't demand meticulous attention and isn't a great tircha. However, on a drabonon, if it is בידו even a child is believed (such as bedikas chometz, even though it requires attention), but if it's not בידו such as techum, a woman is believed but not a child.

Eiruvin 49a - Is an Eiruv a Kinyan or Dirah?

First we must qualify the machlokes. The gemara just finished establishing that the one who houses the eiruv doesn't need to contribute to it because כולהו הכא דיירי, clearly implying that eiruv works משום דירה, as if everyone lived in the house that houses the eiruv. Yet, one line later the gemara develops a machlokes whether eiruv is משום קנין or משום דירה. Furthermore, the gemara 48b says אם אמרו דיורין להקל יאמרו דיורין להחמיר, implying once again that to be meikel we consider eiruv to be "dirah", not a kinyan.

The Gaon Yaacov approaches the sugya (according to Rashi) that all agree in concept that the result of the eiruv is to consider everyone living in the place that houses the eiruv. The machlokes in the gemara is the method to achieve that result, kinyan or dirah. Shmuel holds that a kinyan must be done so that the place which is housing the eiruv is מקנה his reshus to the others in the chatzer to consider it as if they are all living together in this house, whereas Rabba holds that without the method of kinyan, by simply placing their bread in this house it is considered to be as if they are all living in this house. Therefore, all agree that whatever method is used, the result is כולהו הכא דיירי, it is as if all are living in this house.

The Gaon Yaacov points out (in his cryptic style) a fascinating and fundamental difference between Rashi and Tosafos. A careful reading of Tosafos d.h. Eiruv, implies that the "kinyan" we are speaking about does NOT mean that the owner of the house sells rights by the receiving of the bread from the others in the chatzer (rashi). Rather, they are all makneh their reshuyos to each other to create a partnership in all the houses of the chatzer. According to this approach, there is a big conceptual difference as to how eiruv works whether it is kinyan or dirah. Shmuel who holds that it is kinyan is saying that they must have joint ownership in the entire chatzer, whereas Rabba who holds that it is dirah would still consider it as if all the people of the chatzer were living in one house.

The gemara makes it clear that even if the eiruv works as a kinyan, and money should be the ideal thing to use for a kinyan, the Rabbonon didn't want to allow it to be used even bidieved because they were afraid that people would think that money is the primary, forget that bread can be used, and since money isn't always readily available the concept of eiruv would be forgotten. Yet, in the very next line the gemara says that according to Shmuel who holds that an eiruv is משום קנין, a vessel can be used to create the kinyan. Apparently the gemara holds that although money cannot be used since it isn't as common, a vessel can be used since everyone has some kind of kli which can be used for a kinyan.

Tosafos asks that according to Shmuel that Eiruv works as a kinyan, why when using bread do we insist on enough food for two seudos; as long as there is a שוה פרוטה worth in the bread, it should be sufficient? Tosafos supports this question by saying that even a kli is usable for an eiruv according to this opinion, even though it is not eatable. Therefore, bread worth a peruta but less than 2 meals worth should also be usable? It seems to me that in this question Tosafos is arguing with Rashi. Rashi assumed that the use of a kli was serving as a kinyan sudar, not as a kinyan kesef. Rashi seems to understand that when we disallow the use of money for eiruv, we are essentially saying that we don't allow anything to be used בתורת דמים, except for bread. Therefore, when the gemara permits a kli, it must be permitting the use of a kli as a kinyan sudar, not בתורת דמים. According to this approach, it wouldn't make sense to prove that bread that is worth a peruta should work even when it doesn't contain 2 seudos from the fact that a kli an work. When a kli is working it is not at all working בתורת דמים, rather בתורת קנין סודר, and food cannot work as a sudar. Therefore, Tosafos seems to understand that when we permit the use of a kli, we are permitting a kli to be used even בתורת דמים, therefore food should also work b'toras damim even when it doesn't contain 2 seudos worth.

Tosafos answer to this question is difficult to understand. Tosafos writes that when you specify that the eiruv is being done as a kinyan, you don't need two seudos worth, only שוה פרוטה. But when it is done סתם without any specification it requires חשיבות אוכל which essentially means that it must contain two seudos worth. Does Tosafos mean to say that even Shmuel who holds that eiruv can work as a kinyan would hold that it can also work as a dirah? That doesn't seem to be the case because the gemara insists that according to Shmuel the bread be worth a peruta, and less wouldn't work even if it is not being done explicitly b'toras kinyan. So what does Tosafos mean to say?

Eiruvin 45a - Hatzola Returning Home

There is a well known machlokes between Rav Moshe and Rav Shlomo Zalman which they both have elaborate teshuvos on, regarding paramedics and EMT's who went on an emergency call whether they can drive back home on Shabbos. Rav Moshe (Igros Moshe, O.C. 4:80) permits them to return home based on Tosafos understanding of the end of the Mishna 44b. The Mishna says - כל היוצאים להציל חוזרין למקומן. Based on the context of the Mishna we are speaking about those who left home with the "permission" of the Rabbonon so that they can tend to a pikuach nefesh type situation, and returning home would violate techum and also violate carrying their weapons. The gemara permits them to even carry their weapons home. Tosafos explains that the nature of this heter is התירו סופן משום תחילתן. We need to permit them to return home, otherwise they are not going to go at all. Tosafos says that only reason that this isn't listed among the other התירו סופן משום תחילתן in Beitzah 11b is because in each of those cases there is some other justification to permit it and it's not clearly permitted due to התירו סופן משום תחילתן, whereas over here it is obviously only permitted for that purpose and isn't considered much of a chiddush. Based on this approach, Rav Moshe understands that although all the cases in Beitza of התירו סופן משום תחילתן, only violate a Rabbinic prohibition, we learn from our sugya that we apply the concept even to permit the violation of a Torah prohibition since by not doing so there is a risk that one will not go to save lives.

Rav Shlomo Zalman (Minchas Shlomo 8) after asking permission from Rav Moshe to publish his disagreement (which is a great tzidkus on his part) has an elaborate teshuva where he shows from the gemara that Rav Moshe is taking the Tosafos too literally. The gemara explains that the last line in the mishna - כל היוצאים להציל חוזרין למקומן is actually not permitting one to travel further than the 2000 amos (at least in a case where the Jews have the upper hand). The Mishna is only permitting one to bring their weapons with them wherever they go, because by leaving their weapons behind, they wouldn't be prepared to ward off a counter attack. The gemara implies that there is no heter סופן משום תחילתן, rather the heter is for the סופן itself which is a case of pikuach nefesh. Rashi writes explicitly that when the gemara answers שחוזרין בכלי זיין למקומן, it means to say that they are stuck in the 2000 Amah radius of where they end up, just that they are entitled to take their weapons with them and don't need to leave it there. Therefore, there is no source from which to draw that we can apply the concept of התירו סופן משום תחילתן to even permit an issur d'oraysa.

Eiruvin 42b - Intentionally Leaving Techum and Ending Up in Enclosed Area

The Mishna 41b speaks about one who was chased by goyim out of his techum and ends up in an enclosed area, Rabban Gamliel and R. Elazar Ben Azarya consider the entire enclosure to be like 4 amos and permit him to walk anywhere within. Although R. Yehoshua and R. Akiva disagree and limit him to 4 amos, the gemara 42b paskens in accordance with Rabban Gamliel. In truth, that itself is a dispute between Rav and Shmuel whether we pasken like Rabban Gamliel only in regard to a boat that sets sail on Shabbos since the person began Shabbos in those mechitzos, but not when he was placed in an enclosed area on Shabbos, Tosafos 43a writes that we follow the opinion of Rav who rules like Rabban Gamliel even by דיר וסוהר. Based on this, Tosafos rejects the opinion of the Rashbam who writes that if one entered a boat on Shabbos that then set sail he would be bound to his 4 amos. That would be true if we differentiate between the case of the boat and דיר וסוהר (and only permit it by a boat when he began shabbos in that enclosure), but being that even by דיר וסוהר we pasken like Rabban Gamliel that one can walk throughout the entire enclosure, the same would be true for one who enters a boat on shabbos (Rabbeinu Chananel paskens like Shmuel, but the Rif also paskens like Rav).

It is not clear what the halacha is if one were to intentionally leave their techum and find himself in an enclosure, are we stricter in that case to limit him to his 4 amos? The Shulchan Aruch (405:6) writes that we are only lenient to consider the enclosure to be 4 amos if he were transported there by goyim, or some other level of accident, but not if he went there on his own. - אבל אם יצא חוץ לתחומו לדעת, אע"פ שהוא בתוך אחד מאלו אין לו אלא ד' אמות. Apparently, when one intentionally violates the issur of techum, we impose a penalty on him and don't allow him to consider an enclosed area to be like within his 4 amos. The Biur Halacha writes that this is the opinion of the Rambam and many other Rishonim. However, Tosafos 29a (last answer) and the Rashba and Ritva all hold that even if one leaves his techum intentionally and ends up in an enclosed area, he can consider the entire enclosure to be within his 4 amos.

It seems to me that there is a contradiction between Rashi on 42a and 42b regarding this point. Rashi in both places is trying to justify the statement of Rav Nachman 42a that if one begins shabbos in an empty field and on Shabbos there is a wall built around him, he is still bound to his original 2000 Amah techum and cannot walk throughout the enclosure. Why is this different than the case of Rabban Gamliel where one is airlifted and dropped in a דיר וסוהר where we allow him to walk throughout the enclosure? Rashi 42a answers that in the דיר וסוהר case where otherwise we would only allow him to have 4 amos, we are lenient on him to consider the entire enclosure like 4 amos. But in the case where one begins shabbos in an empty field, he is not stuck, he has a techum of 2000 amos, so we have no reason to be especially lenient and give the area a status of 4 amos. Rashi makes no mention of the nature of how he ended up in that situation, implying that it doesn't matter. However, Rashi 42b d.h. lo gazrinan, answer the question differently, by saying that when goyim transport him against his will or some other type of o'nes, we are easy on him to consider the entire area like 4 amos, but if nothing is done against his will, we don't. According to Rashi on 42a we should apply the leniency even if he willfully leaves his techum, but according to Rashi on 42b we only are lenient to consider the entire enclosure to be 4 amos if he ends up there due to some sort of o'nes.

As an aside, we also learn from Rashi 42b that the restriction of not considering the enclosure to be like his 4 amos, is not a penalty for violating techum, rather it is a leniency that we only provide in a situation of o'nes. Therefore, if he wasn't o'nes, even though he wasn't מזיד, we also don't allow him to walk within the entire enclosure.

Eiruvin 40b - Drinking the Cup After Making HaGafen

The gemara is trying to figure out how one can make shehechiyanu on a cup of wine on Yom Kippur. The gemara suggests making shehechiyanu immediately before the start of Y.K., to which the gemara says that the bracha is an acceptance of the day and one could not drink after making the bracha. The gemara suggests the option of making shehechiyanu and leaving the cup without drinking, to which it responds - המברך צריך שיטעום. The gemara finally suggest giving to a child, to which it says that it will train him to drink on Y.K. and he may continue to do so as an adult. Rashi points out that the implication of the gemara is that giving the wine to a child would not violate the המברך צריך שיטעום, from the fact that the gemara needs to find another problem with the suggestion to give it to a child, rather than repeat the point of המברך צריך שיטעום. Rashi writes that the halacha of drinking from the cup is simply that someone must drink, but it doesn't need to be the one who made the bracha. The purpose of drinking from the cup is that if one would make borei pri hagafen without drinking, it would be degrading to the כוס של ברכה. The Rashash points out that Rashi seems strange because he seems to confuse the cause and effect. The reason that one must make a borei pri hagafen is because המברך צריך שיטעום, therefore he must make a bracha to drink. Rashi presents it as if the reason one must drink is because making a בורא פרי הגפן without drinking would be degrading to the cup. Another way to express the issue is that rather than focusing on degrading the cup which at worst would be a d'rabonon problem, Rashi should focus on the borei pri hagafen being l'vatala which is certainly more severe and according to the Rambam even a d'oraysa problem?

There are achronim who deduce from Rashi that even if there was not a halacha demanding that one drink from the cup, they would still make a בורא פרי הגפן. The rationale is that the bracha of borei pri hagafen in the context of a kos shel bracha, doesn't merely serve the function of a ברכת הנהנין. Rather it becomes part and parcel of the brichas hamitzvah. Just as on shabbos morning when the kiddush consists of nothing but a borei pri hagafen, one can be motzi others even if the me'vareich already made hagafen because it is a birchas hamitzvah. The same would be true for the bore pri hagafen made in the context of any kos shel bracha. Therefore, the bore pri hagafen is essential to the kos shel bracha, not just a prerequisite to enable one to drink from the wine. Rashi just comments that once hagafen is made on the cup, it is a bizayon to leave the cup without someone drinking from it.

Eiruvin 38-39 - One Kedusha Or Two

The Mishna 38a cited a machlokes between R. Eliezer and the Rabbonon regarding Yom Tov and Shabbos that are back to back, whether they are regarded as one kedusha (one long 48hr day), or two. In that context there is no safeik, both days are kodesh. The machlokes is only whether the two kedushas remain independent or whether they merge together to be one. It is also not clear whether they are arguing on a d'oraysa level, or a d'rabonon level. It is possible that m'doraysa everyone views it as two separate days, but the Rabbonon consider the kedusha to be merged into one for the purpose of eiruv. The Rabbonon hold that we consider it a safeik and one would need to be machmir that it is one kedusha for the purpose of not making an eiruv in an opposite direction each day, and be machmir that it is two kedushos to require that the eriuv be in tact during the bein hashmashos of y.t. ending going into shabbos to permit travel on shabbos.

The Mishna on 39a has a discussion regarding Rosh Hashana whether we view it as one kedusha or two. The term two kedushos in that context means something different than it does by y.t. and shabbos that are back to back. There are no 2 kedushos regarding R.H., it is a one day yom tov. The concept of 2 kedushos essentially means to view the two days as a safeik where one day is Y.T. and the other is not, whereas the concept of one kedusha means to view it as one long day of kedusha m'drabonon. The rationale to view it as one long kedusha is explained by the gemara in Beitza and R.H. (and rashi here). Due to the mess up of the shir of the afternoon korban tamid, chazal instituted that they would not accept eidim after mincha time. Therefore, those who weren't close enough to know what was going on the the Beis din would have only 2 possibilities, 1. Eidim came the first day early enough to make it R.H. so that the first day was Y.T. and not the second. 2. Eidim didn't show up by the allotted time thereby forcing chazal to make R.H. on the second day, yet maintaining the remainder of the first day with the status of Yom Tov regarding melacha. Being that the second possibility is essentially a Rabbinic institution to stretch the kedusha of the second day back into the first, it is viewed as one kedusha.

We pasken like R. Yossi who is the לא הודו לו חכמים of the mishna that hold it is one kedusha. This is evident from the Shulchan Aruch (600, 1) who paskens that by Rosh Hashana if an egg is laid on day one it cannot be used on day two, similarly if a deer is trapped on day one it cannot be shechted on day two. That is because we consider the kedusha to be one kedusha and not a safeik. However, it is not clear whether only we pasken like R. Yossi to be machmir for one kedusha and not allow eiruvei techumin in separate directions for the two days, or whether we are even meikel for one kedusha thereby permitting one to travel the second day of R.H. even if the eiruv were eaten prior to the bein hashmashos going into that day. It would seem more logical that we are only machmir for one kedusha, but even R. Yossi should conclusively consider it one kedusha since in the time of the mikdash there was also the possibility that eidim would have come on time thereby making the first day yom tov. However, the Rashba (avodas hakodesh, eiruv techumin 18) states explicitly that if the eiruv is eaten before the bein hashmashos of the end of day way and start of day two, one can still rely on it on day two. The Rambam (Hil. Eiruvin 8, 8) also seems to hold that by R.H. the eiruv only needs to be there the first bein hashmashos, not the second.

If it is indeed true that the Rambam and Rashba hold that the two days are considered one kedusha even to be lenient, it should not only impact eiruv techumin but even impact the ability to cook and do other melacha on one day of R.H. for the next. Yet, in Shulchan Aruch (O.C. 103, 1) the mechaber paskens that it is forbidden to cook from one day of Y.T. for the next, even by two days of Rosh Hashana. Why? The Gaon Yaacov in explaining the opinion of the Rambam and Rashba writes that their opinion only makes a difference in the context of eiruv. The only two possibilities are either that it is one kedusha, or that the first day is Y.T. and not the second. There is no possibility after the takana not to accept eidim that the second day has a kedusha that is separate from the first. Therefore, it is sufficient to leave an eiruv by the bein hashmashos of the first day, even if it isn't there by the bein hashmashos of the second day, one can travel since there is no possibility that the second day has kedusha and not the first. But, in the context of cooking and baking from one day to the next, regardless there remains the possibility that the first day is Yom Tov and one is essentially cooking on Y.T. for the next day. Nowadays when we have a fixed calendar and the first day is definitely Y.T. from which we count Yom Kippur, it is certainly forbidden to cook on the first day for the second. The Biur Halacha (103, d.h. v'afilu) cites the Magen Avrohom who says exactly that - the issur to cook on day one for day two goes even according to the Rambam. However, the Gr"a seems to say that this issue is dependent on the machlokes between the Rambam and other Rishonim. The Biur Halacha doesn't understand the approach of the Gr"a based on a similar logic to the Gaon Yacov - the first day is definitely Y.T. on a Torah level, so how can one possibly cook on Y.T. for after Y.T.? Perhaps the Gr"a holds that since הואיל can be used to permit cooking from yom tov for a weekday, as the gemara in pesachim 46a uses it, on a d'rabonon level we can rely on the kedusha achas concept to allow cooking from one day to the next. Based on this approach, even the Rambam will only permit cooking relying on הואיל and therefore insist that the food be ready to be eaten before nightfall, and not just rely on the kedusha achas to permit an issur d'oraysa.

Regarding the bracha of shehechiyanu, the Shulchan Aruch (600, 2) holds that even in the absence of a fruit on which to make shehechiyanu, one would make shehechiyanu on the second day of Rosh Hashana. The difficulty with this is that since we pasken that it is a kedusha achas, at least to be machmir as we find by the beitzah and by the trapping, we shouldn't be making shehechiyanu either? The M.B. deals with this by simply saying that although it is considered one kedusha, it is still two separate days and therefore fit for a new shehechiyanu. I would like to suggest another approach as to why we make shehechiyanu even if it is technically kedusha achas. On the side of kedusha achas, the primary day of Yom Tov will still be the second, not the first. Meaning, the second day will be the Y.T. on a Torah level from which we count Yom Kippur, and the first day is only a Rabbinic implemented kedusha כי היכי דלא לזלזולי ביה. Therefore, it makes sense that chazal tell us to make shehechiyanu on the first out of safeik that maybe that day is Y.T. and on the second because that may be the primary day of Y.T.

Eiruvin 32b - Sinning To Save Someone Else

The Gemara interprets the machlokes between Rebbi and his father R. Shimon Ben Gamliel to be whether one should violate a lower level sin, to prevent someone else from the violation of a more severe sin. The exact circumstance that the gemara talks about is whether a talmid chochom should violate the prohibition of separating Teruma and Ma'aser שלא מן המוקף (Rashi Gittin 30b implies it's only d'rabonon. Tosafos holds that for Teruma it is d'oraysa, but it is considered a lower level violation presumably because it doesn't prevent the Teruma from going into effect), or whether he should not separate which would cause the am ha'aretz to end up eating tevel. R. Shimon Ben Gamliel holds that a person must worry about himself, and not sin to protect others from a more severe violation. Rebbi holds that one should violate the less severe prohibition to prevent the am ha'aretz from eating tevel which is more severe. The Rambam (Ma'asros 10:10) paskens like Rebbi.

Tosafos raises an interesting question. The gemara says in Shabbos 4a that one should not commit a "minor" sin in order to prevent someone else from violation a "major" sin. The example given is that one should not remove bread from the wall of an oven violating the Rabbinic prohibition against רדיית הפת, to prevent the person who put the bread in the oven from violating the melacha of baking on shabbos. How then does Rebbi permit the violation of שלא מן המוקף to prevent the am ha'aretz from eating tevel? Tosafos answers that in Rebbi's case, the talmid chochom who permitted the am ha'aretz to take from his fruits was somewhat negligent in causing the am ha'aretz to violate this prohibition. When one is the cause of someone else's violation, they are better off violating a minor violation to prevent someone else from violating a more major violation. Tosafos continues to prove that in a case where the person who would be violating the more major violation was a complete o'nes and not negligent at all, then one should violate a minor prohibition to prevent that person from violating a more serious violation.

In short, the concept of not allowing one to sin to save someone else, only applies when the person who would be violating the more minor violation is in no way responsible for causing the other to violate the major violation AND the one violating the major violation is someone negligent as well. However, if either the one who would be violating the minor violation caused the other to violate the more serious violation (even though he himself was also negligent), OR the one violating the more major violation did nothing wrong and is a complete o'nes, in both those cases we say חטא בשביל שיזכה חבירך - sin to save your friend.

The Maharatz Chiyus asks a question from the opinion of the Aguda who is brought in the Taz Y.D. 334 who proves from a gemara in kiddushin 72a that Beis Din is required to put someone in cheirem even if it will cause him to go off the derech and completely reject Judaism. Why don't we say that beis din should ignore, violating a more minor prohibition, to save that person from complete rejection of Judaism which is obviously a more serious violation? It seems to me that the answer is simple. When it comes to a situation where one should be put in cheirem, ignoring it is not considered a minor violation. The Beis Din has the responsibility to prevent this individual from influencing others. By ignoring his actions they may be causing more harm to others who will learn from his actions than they would be causing to him by putting him in cheirem. Therefore, this case doesn't qualify as doing something minor to prevent someone else from violating something major.

Eiruvin 32a - Does Eiruv Techumim Follow Rules As If It Were D'oraysa

The gemara 31b says a cheiresh, shoteh, and child cannot be used to establish an eiruv techumin. Rashi explains that to establish an eiruv techumin one has to be able to make an acquisition since the concept of eiruv techumin is to be ko'neh shevisa. Therefore, all those who cannot create kinyanim cannot be ko'neh shevisa. Tosafos disagrees and holds that eiruv techumin is like eiruv chatzeiros in the sense that no acquisition needs to be made. By simply having the food placed at that location with the intent of the owner to serve as an eiruv, it automatically goes into effect. The problem with the cheiresh, shoteh v'katan is simply that they don't have a sufficient level of trust to believe that it was done. The reason why we demand a higher level of trust for eiruv techumin than for eiruv chatzeiros is that eiruv techumin is based on an esmachta, raising its status to be similar to a d'oraysa.

The gemara on 32a has  discussion whether one can trust that a shliach fulfilled his commitment without him returning to verify that it was done. All agree that Eiruv Techumin which although an esmachta is only d'rabonon, therefore we can rely that the agent fulfilled his commitment, but on something which is d'oraysa (meaning that if it were not done, it would be a d'oraysa violation) we have a machlokes Rav Nachman and Rav Sheisheis whether or not we can trust that it was done. In the context of the gemara the gemara tries to prove from a case of separating ma'aser on figs which is only d'rabonon (not from the dagan, tirosh, v'yitzhar), implying that it is considered d'oraysa. Tosafos asks this question and explains that although it is not d'oraysa, it is treated like a d'oraysa in that we don't trust that the shliach fulfilled his commitment since it is "עיקרו דאורייתא" and sourced in the Torah.

Techumin is considered like a d'oraysa in the context of not trusting a child, but is considered a d'rabonon in the context of being able to rely on a shliach, yet, ma'aser on fruits which is only d'rabonon is considered a d'oraysa even for the purpose of trusting a shliach.