Tuesday, September 02, 2008

Gittin 54b - Bitul Issur l'chatchila

The gemara asks on the fact that R' Yehuda only makes a penalty for a shogeg by a d'oraysa but not by a d'rabonon, that we see from these "egozei perech" of orlah that fall into others, although they are batul m'doraysa immediately, they are not batul m'drabonon because of their importance. If the person would crush them which would remove their status of chashivus therefore enabling bitul, R' Yehuda says that we penalize him even if it is done b'shogeg. This seems to contradict the fact that R' Yehuda does not penalize shogeg by a d'rabonon.
The difficulty with this gemara is that in order to make the violation only d'rabonon the gemara has to say that m'doraysa it is batul immediately, even though it is chashuv (as rashi explains), so the act of crushing it is really only an issur d'rabonon of being mevatel issur l'chachila. Why does the gemara need to say this? Even if on a d'oraysa level the egozim were not batul when they first fell in, it would still be only an issur d'rabonon to be mevatel them lichatchila (as beis yosef quotes from Ra"n in y.d. 99, not like ra'avad - also brought in shach). Since the issur of crushing them would only be d'rabonon even if they were not batul m'doraysa before hand, we would have a valid question on R' Yehuda that we penalize for shogeg even by a d'rabonon, even without prefacing with the fact that bitul took place immediately md'oraysa. So why does the gemara feel that it is necessary to preface with the fact that there was bitul d'oraysa; (In other words, the fact that the gemara has to preface with the fact that bitul d'oraysa takes place immediately to reduce the issur to only a d'rabonon, implies like the ra'avad that bitul issur lichatchila of a d'oraysa is in fact assur m'doraysa)?
R' Yehuda's opinion of penalizing for a d'oraysa and not a d'rabonon is that we only penalize for a severe issur, but not for a low level issur (as rashi explains 53b). When the gemara asks the question on R' Yehuda that we find that even by a d'rabonon we penalize b'shogeg, the gemara strengthens the question by illustrating that this d'rabonon is really a very low level d'rabonon. The gemara does this by showing that not only is the act of crushing only d'rabonon, but the actual item is not even assur m'doraysa. Had the gemara only dealt from the perspective of being mevatel issur, one could answer that since right now the mixture is assur m'doraysa and through his actions he is changing it to be mutar, it is tantamount to violating a d'oraysa and appropriate to penalize even b'shogeg. Therefore, the gemara prefaces that before he does anything the issur d'oraysa is already batul, which indicates that the act of crushing is purely d'rabonon and still R' yehuda give a penalty.

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