The gemara on amud alef has three answers to explain the mishna. Tosafos writes that according to the first answer of the gemara that the mishna is speaking in a place where they call out so it is permitted to purchase from a goy, the mishna would contradict the braisa. To reconcile the contradiction Tosafos is forced to distinguish between a sale and a gift - only by a sale where money is being paid is there an issur of g'neivas da'as. However, according to the second and third answer Tosafos says that only when you explicitly lie is it considered g'neivas da'as, but if you just do something where the other party draws his own conclusion it would be considered איהו הוא דקא מטעי נפשיה (as we see in the gemara and isn't considered gneivas da'as). Tosafos modifies this slightly by saying when one does an action that is suggestive such as opening up a barrel of wine in the presence of the guest indicating that it is in his honor, that is tantamount to actually saying that you are doing it for him. Rashi seems to maintain that once the gemara introduces the concept of איהו הוא דקא מטעי נפשיה, we limit ALL the cases of geneivas da'as to where he explicitly told the person that he is doing it for him, or explicitly told the person that it was shechted meat. We see from here that one is not obligated to correct his friends misunderstanding of the situation, but cannot actively mislead him.
Wednesday, September 28, 2011
Monday, September 26, 2011
The gemara in trying to figure out the p'shat in the mishna that prohibits sending meat from which the gid ha'nashe was removed to a goy, offers a few explanations. The final explanation is that it is a violation of geneivas da'as. Being that the first two answers are able to explain the mishna without inventing a concept of geneivas da'as, perhaps we shouldn't pasken like the approach that relies on this concept. The Rosh takes this approach and rejects the notion of geneivas da'as when one sends a gift to a goy, such as the case in the mishna and limits the problem of geneivas da'as specifically to a sale. With this he is able to work out the various other sources that indicate geneivas da'as is a real prohibition, but rejects applying the concept to the case of the mishna since it was being sent as a gift rather than a sale (עיין במעדני יו"ט ס' ר' שמוכיח מהש"ס שאין חילוק בין מכר למתנה). It would seem from the Rosh's approach that geneivas da'as applies to a sale but not a gift, that it is essentially an offshoot of the prohibition to steal. When one is giving a gift and not receiving anything in return as part of the compensation, it cannot be considered stealing. But, when one is receiving some level of compensation, it is prohibited to fool the buyer since the entire compensation is now being given under a false pretense (even though the buyer may have paid the same price even had he known the truth).
In my opinion there are 3 approaches to the nature of the issur of geneivas da'as. The Rosh holds that it is an offshoot of actual theft. Rashi and the Rambam reject the approach of the Rosh, yet differ in how they portray the issur.
Rashi writes multiple times in the sugya - ונמצא מחזיק לו טובה חנם. This implies that the prohibition is not stealing the compensation because rashi uses this logic even in the case of a gift where there is no compensation. Rather, the prohibition is not at the time of the geneivas da'as, it is violated afterward when you accept the goodwill of the receiver and his interest in responding in kind for something that he thinks you did for him, when in truth you didn't do for him as much as he thinks you did. It would seem from rashi that if one would notify the goy immediately after the violation of the geneivas da'as before he will have feelings of goodwill, he will avoid the entire prohibition. The issur is not in fooling the goy, nor is it in stealing compensation for the goy, but is is accepting his goodwill.
The Rambam in Hil. Dei'os 2:6 has what would be considered the simplest approach to the nature of geneivas da'as. The Rambam writes
אסור לאדם להנהיג עצמו בדברי חלקות ופיתוי, ולא יהיה אחד בפה ואחד בלב אלא תוכו כברו והענין שבלב הוא הדבר שבפה, ואסור לגנוב דעת הבריות ואפילו דעת הנכרי, כיצד לא ימכור לנכרי בשר נבילה במקום בשר שחוטה, ולא מנעל של מתה במקום מנעל של שחוטה וכו' ואפילו מלה אחת של פתוי ושל גניבת דעת אסור, אלא שפת אמת ורוח נכון ולב טהור מכל עמל והוות
The Rambam considers the prohibition to have nothing to do with the subject of the geneivas da'as. It is a violation of the מידת האמת that is expected of a Jew, and by lying to the anyone, even a goy, he is undermining this essential midah of being truthful. The difference between the Rambam and Rashi is that according to Rashi the prohibition exists because of the outcome of the undeserved goodwill that the Jew will receive from the goy, whereas according to the Rambam the issur is the act of deceiving another human being.
Wednesday, September 21, 2011
The gemara says that in the merit of Avrohom Avinu comparing himself to dirt and ash, the Jewish people merited the parah aduma which involves ash and the Sotah which involves dirt. The Maharsha explains that it doesn't mean to say that had Avrohom not made the comment אנכי עפר ואפר, we would never have a way to remove the tu'mah of tu'mas meis and would never have a method for the Sotah would never have a method to return to her husband. Rather, there would have been a far more complex and difficult process to achieve these results. In the merit of Avrohom humbling himself with the statement of אנכי עפר ואפר, they were able to achieve these results in an easier form using mere dirt and ash.
I would add that the attribute that most greatly separates between people is that of arrogance. Humility is an attribute that breeds togetherness. In the merit of Avrohom's humility, we were zocheh to two mitzvos that bring people back together. The ashes of the para aduma allow tamei people to once again interact with the tahor, and the dirt of the sotah allows her back to her husband.
The gemara asks that the mitzvah of כסוי הדם should have also been in the merit of Avrohom comparing himself to dirt.The gemara responds that there has to be a tangible benefit that comes from the mitzvah, and by covering the blood there is no tangible benefit. It seems to me that Rava who is the person making the statement is li'shitaso. We find that Rava himself on 89a takes a position of מצות לאו ליהנות ניתנו, which simply means that the merit of the mitzvah in itself doesn't qualify as a benefit. Only physical benefits qualify as real הנאה. Therefore, Rava holds that the benefit of having a mitzvah to perform thereby an opportunity to receive reward in the world to come, doesn't qualify as a benefit and therefore isn't significant enough to be the reward for Avrohom's statement. It is only the physical and tangible benefit that come from פרה אדומה and עפר סוטה that can be the reward for Avrohom's statement.
As an aside, Rashi says that the ability to eat the meat cannot be considered the "benefit" of כסוי הדם since the kashrus of the meat is not at all dependent on kisuy ha'dam. The Pri Megadim (y.d.sifsei da'as 28:2) says that we cannot prove from here that it is permitted to eat the meat without kisuy ha'dam. Perhaps Rashi means to say that if there wouldn't have been a mitzvah to cover the blood, it would have been permissible to eat the meat, so we can't consider this mitzvah to be a real benefit. However, now that there is a mitzvah to cover the blood, it is entirely plausible that until it is done, the meat cannot be eaten. Nonetheless, l'ma'aseh we assume that the mitzvah of kisuy ha'dam has zero to do with the ability to eat the meat. Even if by tevilas keilim for example, the use of the vessel prior to tevila may be a bitul of the mitzvas aseh, by kisuy ha'dam the kashrus of the meat doesn't seem to be at all connected to the mitzvah on the blood.
Tuesday, September 20, 2011
The gemara discusses the issue of paying 10 gold coins for robbing someone of their mitzvah. The gemara questions whether a mitzvah containing multiple brachos such as birchas hamazaon is 10 zehuvim per bracha, or 10 for the entire mitvah. Assuming it is per bracha, the gemara assumes the amount for birchas hamazon would be 40. Rashi explains that 10 per bracha, which means that the fourth Rabbinic bracha of ha'tov v'hamei'tiv would also have 10 zehuvim. Tosafos (d.h. v'chayvu) questions when one is called to the Torah and another grabs the aliya whether the latter owes 10 zehuvim. Tosafos offers two arguments why the person who "stole" the aliya wouldn't have to pay: 1. the rights to an aliya belongs to everyone (perhaps this is only when one was supposed to get the aliya, but wasn't yet called up?). 2. Even if a Yisroel stole the aliya of the kohein he wouldn't have to pay because וקדשתו - לכל דבר שבקדושה לפתוח ראשון ולברך ראשון, is only an אסמכת. Tosafos seems to hold that the requirement of וקדשתו is only d'rabonon, and since it's not from the Torah, there isn't any obligation to pay for stealing that right.Yet, in the very next Tosafos they seem to hold that one is required to pay 10 zehuvim for both ha'tov v'hameitiv and borei pri ha'agfen, both of which are only d'rabonon?
To me it seems that Tosafos isn't focusing on whether the mitzvah of וקדשתו is d'oraysa or d'rabonon. First of all, the magen avrohom (201:4) points out that the gemara in gittin 59b clearly holds that וקדשתו is d'oraysa. Secondly, even if it d'rabonon, there should be a requirement of 10 zehuvim. Tosafos fully agrees that the requirement to give kedusha to the kohein is d'oraysa. However, the Rabbonon came along and gave specific examples in which the kohein must be honored, one of the being the first aliya. But, both the Torah and the Rabbonon never gave this as a right and entitlement of the kohein, rather they demanded of the tzibbur to honor the kohein in this manner. The concept of paying 10 zehuvim is only when one steals a mitzvah that their friend is entitled to, it doesn't apply when one merely fails to fulfill their obligation to that person. Tosafos perhaps understands that had the Torah been referring specifically and directly to giving a kohein the first aliya, it would be understood not just as an obligation of the tzibbur but an inherent right of the kohein granted to him by the Torah, and if stolen from him he would be owed 10 zehuvim. But, since the specifics were only introduced by the Rabbonon, it is not an inherent right, rather they placed an obligation on the tzibbur. Therefore, even when the tzibbur fails to fulfill their obligation, no one would owe money to the kohein.
Monday, September 19, 2011
Chulin 86a - Difference Between the Mitzvah of Covering Blood and Shechting Mother and Child On Same Day
The simple reading of the mishna implies that both R. Meir and Chachamim agree that the shechita of a child is invalid so that there is no requirement to cover the blood, yet in the end of the mishna the Chachamim hold that if a חרש שוטה וקטן shechts the mother, one cannot shecht the child on the same day because we are concerned that the shechita is actually valid. The gemara discusses why the Chachamim would be more strict to forbid shechting the child on the same day than with the mitzvah of covering the blood, and ultimately cannot come up with any rationale. This forces the gemara to conclude that the Chachamim would indeed argue by the mitzvah of covering the blood as well, and would require the blood to be covered after the shechita of a חרש שוטה וקטן. Tosafos raises a very interesting question. There seems to be a very obvious distinction between the mitzvah of covering the blood and the prohibition of shechting mother and child on the same day. It is typical for the Rabbonon to uproot and be passively be mevatel an aseh, a positive mitzvah, in order to preserve a negative commandment and prevent it's violation as they did with shofar on shabbos. Therefore, it is perfectly logical to absolve the shechita of the child from the mitzvah of covering the blood (note: the mitzvah couldn't be on the child, rather on those watching as rashi writes), in order to preserve the prohibition of neveila because if they would require the covering of the blood it would mislead people to thinking that the meat was kosher. However, in the context of אותו ואת בנו, it wouldn't make any sense for the Rabbonon to absolve from the prohibition of אותו ואת בנו and permit the slaughtering of the child in order to preserve the prohibition of neveila. Why would they be more lenient about one negative commandment in order to preserve another? Tosafos suggests that in truth the assumption is that the animal is a neveila and there is no mitzvah of covering the blood and no prohibition to shecht the child. However, being that there is a small chance that their shechita is valid, it would have been worthwhile to cover the blood on the off chance that the shechita was valid. Yet, the Rabbonon didn't want this done because it would mislead to the eating of the animal. Similarly, the gemara asks they should have been concerned that being machmir for not shechting the child (which is not technically a concern since we assume their shechita was invalid), would lead to the eating of the animal (which is really assumed to be assur). That is why the gemara understands that there shouldn't be any distinction between the reisha and seifa of the mishna. It seems to me that Rashi would not be able to use Tosafos answer. Tosafos answer is predicated on the premise that the animal shechted by a חרש שוטה וקטן is really a neveila, not just a safeik and therefore a more real concern than אותו ואת בנו. But, Rashi (ד"ה מאי שנא, וד"ה לחומרא) seems to view it as a regular safeik according to the Rabbonon whether the shechita is valid. Therefore, Tosafos question comes back. It seems to me that the rationale as to why the gemara felt it would make sense to be more concerned with the safeik of neveila, than with the safeik of אותו ואת בנו, is because if we were to do something that would indicate the neveila was permitted to eat (such as cover the blood or abstain from shechting the child that day), one would definitely eat the neveila. There would be no question that one would not want to waste meat that seemed permitted and would definitely use it, therefore by permitting neveila it would unquestionably lead to the issur. Whereas saying that one may shecht the child on the same day will not definitely lead to an issur, since the owner would only shecht it if he actually needs it. Therefore, it would make sense for chazal to ignore the issur of אותו ואת בנו if by being concerned for it would lead to the violation of eating neveila.
Sunday, September 18, 2011
The gemara uses shofar as a pircha to the kal v'chomer of rav yossi. The logic is that shofar is an example of something which doesnt push off shabbos even if it is a definite obligation, yet the safeik mitzvah such as a tumtum who is a safeik woman, can blow on yom tov. The point of the gemara is to show that yom tov is less severe than shabbos. However, the gemara never clarifies what actual prohibition we are speakingmes to shofar on yom tov. Tosafos offers 2 suggestions: 1. The prohibition being discussed is the issur of carrying. Since women aren't obligated in shofar it should be prohibited to carry for them. Yet, a tumtum who may be a man and may be fully obligated, can carry a shofar. 2. The issue being discussed is merely an ussur d'rabonon of carrying on yom tov. According to the first approach, the shares aryeh 106 proves that a shofar cannot be carried to the public domain on yt for the sake of a woman. This is also the.implication of tosafos at the end of the sugya who implies that similar to semicha, only an issur d'rabonon can be done, not carrying which is doraysa. Rav Moshe (oc 3:94) has a very long and complicated teshuva arguing on the shaagas aryeh and proving that a shofar or lulav can even be carried on yt where there is no eiruv to enable a woman to do the mitzvah.
Wednesday, September 14, 2011
R. Akiva Eiger writes in a Teshuva (3) that the issue of whether by something that actually has kedusha i.e. the klaf of a sefer Torah, we say that setting aside is significant and makes it assur even before it is used, is dependent on a machlokes in our gemara. According to Rav Yanai who says that sending down the eglah arufa to nachal eisan makes it assur, the same would be true with anything that is inherently an item of kedusha - הזמנה מילתא היא. But, according to those who say that it would only be assur by the shechita, they would have to hold that even by something which is an actual גוף הקדושה (not just תשמישי קדושה), the הזמנה would not be significant enough to create an issur.
The gemara says that according to the opinion who says that by eglah arufa the sending it down to nachal eisan makes it assur, by the birds of the metzorah the purchasing of the birds for the use of the metzorah would make it assur. Rashi explains how we can compare the purchasing of the birds to the sending of the calf to nachal eisan, we should compare the purchasing of the birds or initial taking for metzorah purposes with the purchasing or initial taking of the calf. Rashi explains that by egla arufa where there is a later act prior to shechita to be considered the designation of it and create the issur, we assume that act is what creates the issur. But by the birds where there is no later act, the purchasing or taking is considered the act that creates the issur. The difficulty with this in light of R. Akiva Eiger is that if we are really dealing with an issur of הזמנה מילתא היא, we should consider the very first act of designation to be hazmana, not the very last act before shechita such as the sending down to nachal eisan.
The gemara says that the la'av of לא ירצה which says that you can't be makriv an animal with a mum and the gemara darshened that it should include anything which is not fit to be makriv, wouldn't include a מחוסר זמן. Meaning, an animal that is premature such as before 8 days old, or אותו ואת בנו which is also considered premature, the torah is menatek l'aseh. Tosafos understands simply that the gemara means that the aseh pulls it out of the category of the la'av entirely so that one cannot be in violation of לא ירצה by being makriv an animal that is מחוסר זמן. However, Rashi seems to understand that the language of נתקו לעשה is using the standard mechanics of a לאו שניתק לעשה where the halacha is that you certainly violated the la'av but there is no malkus. The difference between rashi and tosafos is when one is makriv an animal that is מחוסר זמן, did he violate the la'av of לא ירצה - according to rashi he did, but according to tosafos he didn't. Tosafos asks on Rashi that this doesn't seem to follow the normal setup of a לאו שניתק לעשה. Normally it means that one can do something to fix up the la'av after violating the aseh such as returning the stolen goods or sending away the mother bird. Here, once you are makriv the animal prematurely (or on the same day as it's mother), there is nothing to do to fix it up. The aseh is something that should have been done instead of violating the la'av but doesn't help to "fix" the la'av. To explain Rashi's position it seems that rashi holds that a לאו הניתק לעשה doesn't have to be something active, rather it is a technicality of how the Torah presents the la'av. Rashi understands that when the Torah presents the la'av as something that can only be done after the aseh, it is a לאו שקדמו עשה and doesn't qualify as a לאו שניתק לעשה, therefore you would get malkus. But, whenever the aseh only exists after the la'av even though it doesn't fix the la'av (because once the la'av is violated, there is no ability to do the aseh), the Torah is indicating that there is no malkus for the violation of the la'av. This approach works in Rashi in our sugya and would answer the question that Tosafos has, but doesn't work in the sugya in makos of בטלו ולא בטלו and קיימו ולא קיימו which focus very much on the ability or inability to fulfill the aseh after the violation of the la'av.
Tuesday, September 13, 2011
The gemara says that R. Abba demanded that when two mules are tied to a wagon, they must both have a mother who is a horse and father who is a donkey, or the reverse. But if one would have a mother who is a donkey and the other a mother who is a horse it would be an issur of kelaim since we are machmir for the opinion of R. Yehuda who holds that we disregard the father and consider the child to be the species of the mother. However, R. Abba allowed them to figure out the species of the mother using the simanim of a short tale and long ears being indicative of a mother who is a donkey, and the opposite being indicative of a mother who is a horse. The gemara comments that his willingness to rely on these simanin indicate that he holds simanim are d'oraysa because otherwise he couldn't rely on them for kelayim which is essentially an issur d'oraysa. Rashi comments that whether simanim are indeed d'oraysa is a discussion in baba metziah and R. Abba would be holding that they are d'oraysa.
The Ramban asks that Rashi's connection to the gemara in Baba Metzia regarding identification of either an object or a dead husband, doesn't seem to be at all related to simanim in this context. The issue of using simanim of identification and questioning whether they are "d'oraysa" is because they aren't 100% conclusive since it is possible that another object may possess these simanim as well (whereas a siman muvhak that is conclusive is certainly d'oraysa). However, in our context chazal seemed to have a tradition that every child born from a mother donkey will have a short tail and long ears, and every child born from a mother horse will have a long tail and short ears. To rely on simanim in our context because they are d'oraysa, meaning a tradition from moshe m'sinai that they can be relied on for kelayim, wouldn't be any indication of simanim being d'oraysa when used as identification of an object or person.
It seems that the connection of Rashi forces us to say that the simanim used to identify whether the mother is a donkey or a horse are not a tradition from Moshe Mi'Sinai. Rather, Chazal must have noticed that statistically speaking one could safely assume that when the mule possesses simanim in the ears and tail of a donkey, it's mother is a donkey, and if it possesses simanim of a horse, it's mother is a horse. These aren't absolute, rather statistically correct. Therefore, Rashi holds that the simanim in our context are also identification type simanim rather than being absolute indicators of the species of the mother.
Sunday, September 11, 2011
The gemara has a rule in many places that although a positive mitzvah (aseh) can push off a negative mitzvah (lo ta'aseh), anytime a mitzvah has a lo ta'aseh and an aseh we don't allow another aseh to push off both the negative and positive mitzvah. The example is the mitzvah of covering the blood of a bird when it's shechted where there is an aseh to cover the blood, but if done on yom tov it would violate an aseh and lo ta'aseh, so we don't allow one to do the mitzvah of covering the blood on yom tov.
However, the question is raised whenever we have a situation of aseh trying to push off aseh and lo ta'aseh, whether we allow the aseh to push off the lo ta'aseh just not the supporting aseh, or do we say that since the aseh can't push off the opposing aseh, it also can't push off the opposing lo ta'aseh. The Riva quoted by Tosafos in Chulin 141a holds that in a situation where there is an aseh opposing a lo ta'aseh and and aseh, if one would fulfill the aseh thereby violating the lo ta'aseh and aseh, they would not get lashes for the violation of the lo ta'aseh because the aseh effectively pushed off the lo ta'aseh, just isn't powerful enough to push off the opposing aseh. In my sefer, Nasiach B'chukecha (page 214) I discussed this issue and showed how it is a machlokes rishonim. In the additions to my sefer, I pointed out that Tosafos on today's daf seems to disagree with the Riva and holds that when we have an aseh up against a lo ta'aseh and an aseh, it would not even push off the lo ta'aseh so that if it is violated there would even be malkus for the violation.
Tosafos D.H. Minayin, asks why do we need a source to teach that the prohibition of shechting a mother and child on the same day would apply to kodshim, the fact that it would be written without any qualification would automatically make it apply to kodshim? Tosafos suggests that perhaps we need the pasuk to say that even if there is a mitzvah that must be done with this animal such as korban pesach, you cannot shecht it if the mother has been shechted earlier that day. Meaning, without a special source we would allow the mitzvah of Korban Pesach to push off the prohibition, but now that we have a source that it applies to kodshim we wouldn't allow the mechanics of aseh pushing off a lo ta'aseh to take place. Tosafos rejects this answer because shechting a child the same day as the mother would be a violation of both an aseh and a lo ta'aseh so even without a special source we would never have allowed the aseh of korban pesach to push off both an aseh and a lo ta'aseh that forbids shechting the mother and child on the same day. Tosafos seems to understand that whether we had a special pasuk declaring that one cannot shecht the child on the same day as the mother to fulfill the mitzvah of korban pesach, or didn't have a special pasuk, the result would be the same since the rule of אין עשה דוחה לא תעשה ועשה wouldn't allow the violation. Now, if the Riva is correct that when we have a situation of אין עשה דוחה ל"ת ועשה we wouldn't give lashes for the violation because the aseh would indeed push off the lo ta'aseh, just not the supporting aseh, then we would still require a pasuk to say that the issur of אותו ואת בנו doesn't apply to kodshim. Without a special pasuk, if one were to shecht the child the same day as the mother, he wouldn't get malkus. Now that we have a special pasuk teaching that even by kodshim animals that are needed for a korban the prohibition applies, there would be malkus for the violation. The fact that Tosafos maintains that the rule of אין עשה דוחה ל"ת ועשה is sufficient even without a special pasuk, implies that the rule of אין עשה דוחה ל"ת ועשה alone would also allow us to give lashes to one who violates, which is against the Rivah.
Wednesday, September 07, 2011
The Gemara concludes that when one shechts an animal with a dangling limb, the shechita is effective on the limb on a Torah level both to prevent it from having an issur status of neveila (or eiver min ha'chai) and to prevent a tu'mah status of neveila. The Rabbonon imposed a rabbinic prohibition against eating it, but didn't impose any tu'mah status. The Rambam (Hilchos Ma'achalos Asuros 5:6) in codifying this halacha writes that the status of a dangling limb on an animal that was shechted is that it is assur but there is no malkus (if it died by itself, it has a status of eiver min ha'chai both for issur and for tu'mah). It is unclear from the language of the Rambam אסור ואין לוקין עליו whether he means to say that it is an issur d'rabonon or an issur d'oraysa just that there is no malkus. The Pri Chadash (Y.D. 62) explains that according to the Rambam it is an issur d'oraysa but since ultimately included in the לאו שבכללות of בשר בשדה טרפה (as the gemara says 73b), there is no malkus. The Maharatz Chiyus quotes that the Pri Chadash proves this from the Tosefta that says that a dangling limb is assur for Goyim. Generally speaking we don't find Rabbinic prohibitions on Goyim, therefore the fact that it is considered אבר מן החי even for a Goy implies that it is an issur d'oraysa.
Tuesday, September 06, 2011
The gemara explains the position of R. Meir who holds that vessels with long handles only require tevila up until the point that the handle serves a function but not beyond that point. The rationale is that since it will be cut off, we view it as if it were already cut off and therefore isn't part of the vessel. The Rosh and Rash in Keilim develop from this mishna an interesting principle. Normally, areas that qualify as beis ha'starim on a person we don't require water to actually touch so long as there is no chatzitza rendering the area fit for water to enter. However, if that were the halacha by keilim as well it wouldn't make sense to simply be tovel the vessel until the point where the handle will be cut, because the point at which it is cut is not fit for bi'as mayim - to touch the water. Clearly, the halacha of beis has'tarim of vessels is that it doesn't even need to be fit for water to touch. However, the Mishna Acrhona (one of the commentaries in taharos) disagrees. He holds that even by keilim there is a requirement that the beis hastarim be ראוי לביאת מים, yet we don't consider the area that would be exposed when it is cut to be a problem because it is the minority of the vessel and people aren't makpid about the handle being there, therefore it isn't a chatzitzah. In truth, Tosafos (d.h. matbil) also considers the handle prior to being cut off to be a problem of chatzitza at the point that it will be cut and therefore makes the case where water can permeate the handle so that it isn't a chatzitzah. See Mayim Rabim pg. 236.