Monday, December 27, 2010

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.

Thursday, December 23, 2010

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.

Wednesday, December 22, 2010

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.

Monday, December 20, 2010

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.

Thursday, December 16, 2010

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?

Tuesday, December 14, 2010

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.

Monday, December 13, 2010

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).

Thursday, December 09, 2010

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.

Thursday, December 02, 2010

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.

Wednesday, December 01, 2010

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.