Wednesday, October 31, 2012

Shabbos 30a - Comatose People and Mitzvos

On a recent trip to Baltimore for a Bar Mitzvah, my uncle R. Hillel Tendler shared a story. Rav Moshe and Rav Hutner were once travelling together in a car, and they passed a street corner where there was someone asking those passing by to stop for a moment and put on tefillin. Rav Hutner pointed it out to Rav Moshe, perhaps lauding their efforts to reduce the numbers of קרקפתא דלא מנח תפילין. Rav Moshe responded that he didn't think it served any purpose at all. Rav Moshe explained that tefillin is an אות, meaning it is a way to indicate to Hashem that we are his subjects and willing to serve Him. One who wears tefillin and doesn't have this intent, has not fulfilled the mitzvah of tefillin.
Although those allowing the tefillin to be put on them were likely intending to do a mitzvah, Rav Moshe held that the mitzvah of tefillin is not merely the act of placing it on one's arm and head, but rather the intent to be subject to Hashem's mitzvos, therefore one who goes through the motions but doesn't recognize this, remains a קרקפתא דלא מנח תפילין. Perhaps he derived this from the fact that although in krias shema (va'eschanan) the Torah speaks about tying tefillin, in Parshas Bo it doesn't focus on the action at all. Rather the Torah says that the Tefillin function as an אות and as a זכרון, indicating that this is an essential component of the mitzvah. Based on this, I would suggest that the concept of not having a היסח הדעת in tefillin which the gemara Yoma 8 learns from the tzitz, is not a separate violation, rather an essential component to the proper fulfillment of the mitzvah of tefillin which demand a constant awareness of being subject to one's creator.
This story made me wonder about whether there is value in putting tefillin on people who are comatose in a hospital or hospice...

The gemara learns from the pasuk במתים חפשי that when a person dies they become חפשי from studying Torah and doing mitzvos. The implication of the gemara is that this is an advantage of those alive over those who are dead and can no longer perform mitzvos. Rav Moshe (Hearah # 74) asks that this doesn't seem to be a distinction between live vs. dead, because there are many live people as well who are incapacitated and unable to perform mitzvos? Rav Moshe explains that the point of the gemara is to contrast those who are dead and no longer have any connection with mitzvos to those who are alive. When a person is dead there is no longer any value in assisting them in doing mitzvos such as putting tzitzis and tefillin on them. So long as a person  is alive, even if they are incapacitated and are אנוס in their inability to do the mitzvah, if one were to assist them by placing tefillin or tzitzis on them, they would be fulfilling a mitzvah. Another distinction is, whether it is permitted to daven in front of someone who can't perform mitzvos. Davening in the presence of a corpse for example would be לועג לרש because they no longer have any connection to mitzvos, but davening in the presence of one who is alive, just "tied up", is not in violation of לועג לרש since they are obligated in mitzvos.
It would seem that Rav Moshe when he recommends assisting those who are incapacitated in performing the mitzvah of tzitzis and tefillin, is speaking about one who is conscious and able to focus mentally on the mitzvah, but unable to do the act of putting on tefillin and tzitzis. However, if one is comatose and not mentally aware of the fact that they will be performing mitzvos, it would seem that there is absolutely no value in assisting such a person by putting tefillin and tzitzis on them. Leaving aside the chiddush in Rav Moshe's understanding about the special nature of the mitzvah of tefillin,  there is a more fundamental problem that applies to tefillin and tzitzis equally. Even according to those opinions who hold that mitzvos don't require intent - מצות אין צריכות כוונה, that simply means that one doesn't need to intend to be fulfilling a mitzvah with this act. However, all agree that a מתעסק does not fulfill the mitzvah. One who has no awareness that he is ever doing a mitzvah, has a halachic status of a mis'aseik and is not considered to have fulfilled a mitzvah.

Therefore, for a sick patient in a hospital, when he has enough mental awareness that he will be fulfilling a mitzvah by the action he is doing, there would be a purpose in putting tzitzis on him. Regarding tefillin (assuming the story above is accurate), one must assess the patient to see whether they are capable of not just realizing they are doing a mitzvah, but recognizing an allegiance and obedience to Hashem through this mitzvah. But a patient who is not functioning mentally, such as cerebral death, or even a deep coma, there would be no purpose at all in putting tefillin or tzitzis on their body. It would seem logical though, that even a patient in a coma has a connection to mitzvos in the sense that they cannot be fed issurim. One cannot for example dress a comatose patient in shatnez clothing (unless they are in a state that they don't feel temperature and don't derive any הנאת חימום from the clothing, in which case there is no issur). And of course, if they reach a point of brain-stem death, they must be buried without delay.

Tuesday, October 30, 2012

Shabbos 29b - Putting Oneself Into a Chilul Shabbos Situation

The mishna says that one is allowed to extinguish a candle out of fear that the goyim will catch him on their holiday. The gemara explains that even according to R. Yehuda who says that a melacha she'eina tzricha l'gufa is assur, it is permitted (not just patur) for the sake of pikuach nefesh. Rav Moshe (Dibros Moshe #72) raises a very interesting question. What gives him the right to light in the first place? How can someone light candles on erev shabbos knowing that it is a holiday and therefore dangerous to have candles burning so that he will need to extinguish the flame on shabbos?
In perek Rebbi Eliezer D'mila (shabbos 134) the Ran cites a famous machlokes between the ba'al hameor and the ramban. In a situation where one needs warm water to bathe a child after a bris, and doesn't have warm water, can they do the bris now knowing that they don't have water, but then rely on the pikuach nefesh need of the child to heat up water on shabbos after the Bris. The Ba'al Ha'meor holds that one is not allowed to put himself into a situation where he will have to violate shabbos for a pikuach nefesh need. Rather, we push off the bris. But the Ramban takes a באשר הוא שם approach and says that right now he is obligated to perform the mitzvah of milah which pushes off shabbos. Even if afterward he will have to violate shabbos for pikuach nefesh, so be it. It would seem that according to the Ramban it is obvious why we can allow him to light candles erev shabbos even though he realizes that he will have to violate shabbos by extinguishing the flame when it becomes a pikuach nefesh concern, because we judge the situation at the moment.
Although one can argue that even the Ramban will only allow a bris which itself is such a significant mitzvah that it pushes off shabbos, but who says the Ramban will allow one to light candles if they know that they will need to extinguish the flame for pikuach nefesh? Rav Moshe proves from the Ba'al Hameor that the Ramban will maintain his באשר הוא שם position even for a less significant mitzvah like lighting candles. The Ba'al Hameor proves that one pushes off the bris from the mishna in beitza that one must push off the mitzvah of simchas yom tov and not shecht an animal if they know that after the shechita they will have to rely on the mitzvah of kisuy ha'dam pushing off yom tov. What is the proof? Maybe bris which is significant enough to push off shabbos is allowed to be done, but other mitzvos such as simchas yom tov cannot. Clearly, even the ba'al hameor understands that if we are to permit the activity based on the fact that now we aren't required to worry about what it will lead to, we can permit any activity. Therefore, the Ramban who holds that one can do a bris knowing it will lead to violating shabbos for pikuach nefesh, would also allow lighting candles knowing that it will lead to violating shabbos for pikuach nefesh.
However, according to the Ba'al Hameor, the question remains. How can we allow this person to light candles to begin with?
I would like to answer this based on the steipler. The Ba'al hameor himself allows one to get onto a boat for a mitzvah purpose right before shabbos, even though he knows he is putting himself into a situation of chilul shabbos for pikuach nefesh. Why then does the ba'al hameor require the pushing off of the mitzvah of milah? The Steipler explains that the Ba'al Hameor holds that before shabbos one is not required to abstain from an activity that will lead to chilul shabbos. But, on shabbos one is not allowed to do anything that will lead to pushing off shabbos for pikuach nefesh because we regard it as if he is beginning the violation of shabbos right now, even before the pikuach nefesh situation arises. Therefore, before shabbos you can get on the boat, but on shabbos you can't do the bris (or get onto the boat). Based on this, even the ba'al hameor will allow the lighting candles before shabbos knowing that the flame will need to be extinguished for pikuach nefesh, since it is being done before shabbos.

Monday, October 29, 2012

Shabbos 27b - Materials Obligated in Tzitzis

According to the way R. Nachman Bar Yitzchok understands the Tana D'bei Rabbi Yishmael who limits בגד to garments made of wool and linen, it is in the context of the mitzvah of tzitzis. Meaning, only garments made of wool and linen are obligated in tzitzis according to the torah. However, Rava understands that the focus on wool and linen is for the strings, meaning that wool or linen strings work on any garment regardless of the material, but otherwise the strings must be the same material as the garment i.e. cottons strings won't work on a silk garment. Tosafos writes that we pasken like Rava which is the p'sak of the Rama (9:1), that all materials are obligated in tzitzis m'doraysa, but the Mechaber paskens like the tana d'bei rabbi yishmael that only wool and linen are chayev m'doraysa. Rav Moshe has an interesting teshuva where he explains that even according to the Rama, synthetic materials are exempt from tzitzis (even m'drabonon). His rationale is that only materials that require being made into threads and woven together have the status of a "beged", but materials that can be used without being made into threads such as all synthetics, even if they are made into threads and woven, they don't have status of a "beged" and are therefore exempt from tzitzis. Therefore, even if one is not going to be machmir for what the shulchan aruch considers d'oraysa, one cannot make tzitzis on a synthetic garment. A bracha recited on tzitzis when the garment is synthetic will be a bracha l'vatala.

Friday, October 26, 2012

Shabbos 25b - Bracha on Candle Lighting

Tosafos questions whether the language of חובה has an implication of being a practical necessity, but not a mitzvah and therefore not worthy of a bracha. However, Tosafos writes that when we say that lighting candles for shabbos is a חובה, we don't mean to the exclusion of a mitzvah and therefore a bracha may be recited.
Tosafos then says that there is another reason that some hold not to make a bracha on shabbos candles. Since if it were lit from before shabbos one would not be required to extinguish the flame and relight, therefore even when they do light, no bracha is made. Tosafos rejects that rationale, even if the assumption that one wouldn't have to extinguish and relight was correct, from the bracha on kisuy ha'dam and on bris mila. By kisuy ha'dam the gemara says that if the wind covered over the blood, he would be exempt from the mitzvah, yet when he does the mitzvah he makes a bracha. Similarly, if one would be born circumcised there is an opinion that he doesn't even require hatafas dam, yet when one does a bris they must make a bracha. Here too, although if the candle was burning from before, one would not need to do anything, however, when there is not candle burning they are required to light with a bracha. At the very end Tosafos rejects even the premise and holds that a candle that was burning from before, must be relight for the sake of shabbos [Tosafos proves this from the gemara 23b which says that one cannot light too early as rashi explains because it won't be recognizable that it is for shabbos - clearly a candle burning from before isn't sufficient. However, it could be that if one is going to do the mitzvah, they must light in the proper time, because lighting early isn't a fulfillment of the mitzvah rather an avoidance of the mitzvah. But if one had a preexisting candle burning, they would have no obligation to light at all].
The machlokes between the two opinions of Tosafos seems to be how to define the nature of the mitzvah to light candles. Is the mitzvah to do a מעשה הדלקה to ensure that there is light for shabbos, but the mitzvah is still the מעשה הדלקה, or perhaps the nature of the mitzvah is simply to ensure that there is light for shabbos and the act of lighting isn't an act of a mitzah? The first opinion seems to hold that the fact that a light burning from before is sufficient indicates that there is no mitzvah in the act of lighting, therefore even when one lights, no bracha is said. Whereas the second opinion holds that although the goal is to provide light so that if one already had a candle there is nothing to do, nonetheless, without a candle they are obligated to actually light and therefore a bracha can be recited.

Thursday, October 25, 2012

Shabbos 24a - Saying Aneinu When Not Fasting

The Shulchan Aruch (565:3) writes that some say a yachid only says aneinu by mincha on a fast day because we are afraid that he will fall ill and will not be able to complete the fast causing his tefillah to be invalidated retroactively (but the shliach tzibbur will say it even by shacharis in the repetition because he can assume at least someone will complete the fast). The Shulchan Aruch continues by saying that this is only when communities fast for rain, but the four fasts that were instituted by the navi and accepted by klal yisroel one should say aneinu in all the tefilos because even if one eats it is appropriate to say aneinu since it is a yom ta'anis for klal yisroel. The Rama disagrees and writes that the minhag is always to just say it by mincha, even on the four fasts. Based on the logic of the Shulchan Aruch, on the four fasts one should say aneinu even in the ma'ariv preceding the fast [sha'ar hatziyun 8 explains that although one may still eat, the status of ta'anis begins even in the evening, which is clear from the fact that if one fell asleep they would not be able to eat when they woke up].
In the gemara it is clear that even when one is fasting a ta'anis for rain, aneinu is said in all the shemoneh esrei of the day, starting with ma'ariv the night before. However, Rashi adds that we don't say aneinu by ma'ariv and even shacharis because we are concerned that the person won't be able to finish the fast and will retroactively be considered a שקרן בתפלתו. The Maharsha explains that one cannot ask that if this were truly a concern, why was it only instituted by the ge'onim and not in the time of the gemara, because in the time of the gemara people were stronger and assumed to be able to complete the fast. Whereas in the time of the geonim people became weaker and this became a concern. According to this approach, one can only say aneinu in their shemone esrei if that day has the status of a ta'anis, which is achieved by fasting for the full day. The machlokes between the Shulchan Aruch and Rama is whether the four fasts automatically assume the status of ta'anis based on chazal takana, regardless of the hanhaga of the individual.
Tosafos asks on Rashi that if by not completing the fast, one essentially ruins the tefillos that they davened with aneinu, why does the gemara allow for one to break their fast midway through, and make up for it a different time. By breaking the fast they are invalidating their tefillos that were said with aneinu? Tosafos asks this as a question, but the Ran says that based on this question we see that the premise is wrong. Even if one doesn't end up completing the fast, they are not considered to be a שקרן בתפלתו because at the time that they davened they were fasting. Both the Shulchan Aruch and Rama assume like Rashi, that aneinu is only appropriate if the day will have a status of ta'anis, and not if one just happens to be fasting at the moment they are saying it. Furthermore, the Ran's approach doesn't explain why one would say aneinu by ma'ariv since he will be eating both before and after, it only explains why one can say aneinu by shacharis when he is actually fasting, even though he doesn't intend to complete the fast.
In the Mishna Berura 566:14 he cites a machloes whether a tzibbur can read va'yichal on a ta'anis when there isn't a minyan fasting (if it is monday or thursday in the morning they certainly can since it is a day for krias ha'torah anyway). The Eliyahu Rabba and Pri Megadim write that without a minyan fasting one cannot read vayichal even on a ta'anis tzibbur, whereas the Sha'arei Teshuva writes that on a Ta'anis Tzibbur even if only seven people are fasting the tzibbur reads va'yichal. This is all by a ta'anis tzibbur for rain, but it seems that reading vayichal when no one in the tzibbur is fasting on one of the four ta'aniyos should be dependent on the machlokes Shulchan Aruch and Rama. According to the S.A. since the day has status of ta'anis, vayichal could be read even with no one fasting, whereas according to the Rama it should have the same din as ta'anis tzibbur for rain that we need either 10 fasting or at least 7.
Similarly, the Shulchan Aruch 566:6 writes that one shouldn't get an aliya on the ta'anis unless he is fasting and intends to complete the ta'anis. This should also be dependent on the S.A. and Rama, according to S.A. one should be able to get an aliya even if they are not fasting, but according to the Rama they should not get an aliya unless they are fasting.
R. Akiva Eiger (24) has an interesting teshuva where he is me'supak whether the reading for mincha on Yom Kippur is a din ta'anis or a din yom tov, and therefore questions whether a choleh who had to break his fast can get an aliya. R. Akiva Eiger definitely assumes that the reading of vayichal on one of the four fasts which is a din ta'anis may only be given to one who is fasting, which is consistent with the opinion of the Rama.
However, the Chasam Sofer (O.C. 157) has a teshuva where he discusses anticipating an aliya for mincha on a tisha b'av that he wasn't fasting and questions whether he could have taken the aliya. In his second argument which he seems to imply is valid by itself is that tisha b'av is a takana as a day of ta'anis on klal yisroel, and therefore even one who isn't fasting is still obligated in the krias ha'torah. - והכא נמי ט' באב יום מועד דפורענותא הוא ואפילו אינו מתענה בו מ"מ מחוייב בקריאת היום
The difficulty with the chasam sofer is that his logic seems to be very similar to that of the Shulchan Aruch in that the day has status as a fast day, even if the individual is not fasting. But it is on this very point that the Rama disagrees and holds that without fasting, one cannot say aneinu, and a tzibbur not fasting should not be able to read vayichal, and an individual should not be able to get an aliya. How can the chasam sofer pasken along the lines of the Shulchan Aruch, against the Rama? Perhaps even he only says this for tisha b'av because it is a day of פורענותא, but on the other ta'aniyos he would agree that one who is not fasting cannot get an aliya. But, Rav Moshe (o.c. ?, 113) had a teshuva discussing this issue and definitely assumes that the logic of the chasam sofer would apply to all 4 ta'aniyos.

Wednesday, October 24, 2012

Shabbos 23a - Order of Brachos on Chanuka Candles

Learning the daf today in the kollel, R. Menachem Levine asked why it is it that the bracha of שעשה נסים לאבותינו comes before the bracha of שהחיינו. It makes sense that we make the bracha of להדליק נר של חנוכה first based on the gemara in Succah 56a that שהחיינו comes after לישב בסוכה because the mitzvah of the day comes first, even though שהחיינו has the advantage of being tadir (more common). Here too, the bracha of l'hadlik is like the bracha of lei'shev ba'succah and should come first. But shouldn't the bracha of z'man which the gemara considers to have an advantage of tadir (over lei'shev) come before the bracha of she'asa nissim which is certainly less common?
In fact, the Maseches Sofrim 20:6 actually puts the she'asa nissim after she'hechiyanu. The order that we have is based on Rashi, Rambam, Rosh.... who all seem to assume that she'asa nissim should precede she'hechiyanu.
The Maharsham (notes in back) points you to the She'iltos D'rav Achai (Vayishlach, 26) where the order is also first שהחיינו and then שעשה נסים like the maseches sofrim. The Netziv in his commentary on the she'iltos writes that he thinks the bracha of שעשה נסים also qualifies as the חיובא דיומא which the gemara says in Succah 56a earns it first place in the order and trumps the advantage of tadir. Although he doesn't explain why he considers שעשה נסים לאבותינו to qualify as חיובא דיומא, the obligation of the day, there are two possible approaches (both were suggested today in our Beis Midrash, R. Noy and R. Apt, respectively). One approach is that the bracha of she'asa nissim becomes a bracha that is closely tied to the mitzvah of lighting chanuka candles. Although the shehechiyanu is also tied to the act of the mitzvah, not the kedusha of the day (see Biur Halacha 692:1 citing Mor U'ktzia - Rav Moshe has a teshuva where he strongly rejects the position of R. Yacov Emden), nonetheless, it is less connected to the performance of the mitzvah than the bracha of she'asa nissim (perhaps because shehechiyanu is very generic and said in many cases for many different reasons). A second approach, and one that I think is more plausible is that the gemara tells us that Chanuka was instituted as ימים טובים בהלל והודאה, actually making no mention of the mitzvah to light candles. Rashi says - ולומר על הנסים בהודאה. Of course Rashi is referring to the al hanisim of shemneh esrei, but the fulfillment of this hoda'ah is also achieved through the bracha of שעשה נסים לאבותינו בימים ההם בזמן הזה, therefore it qualifies as חיובא דיומא even though if it is not at all connected to the mitzvah of lighting candles.
The Netziv cites a k'sav yad of the she'iltos where he seems to compromise and say that one who is lighting makes שעשה נסים first, but one who is making a bracha on the seeing of the candles makes shehechiyanu first. The Netziv explains that the one lighting has begun the obligation of the day, therefore he is supposed to first finish with the obligations of the day before making she'hechiyanu. That is why he says שעשה נסים first. But one who is making a bracha on simply seeing the lights, would make the bracha that is more tadir, namely she'hechiyanu.


Another interesting issue regarding the brachos is a machlokes cited by the Ritva whether all 3 brachos should be made prior to lighting (as we do based on the Rama 676:2), or make the bracha of l'hadlik prior to lighting, then light and only after lighting make the other two brachos. The second opinion seems to hold that whether one is lighting himself or seeing the light of someone else, the brachos of she'asa nissim and she'hechiyanu are made on the seeing of the light and therefore must be done after it is lit. But, the first opinion who holds that all 3 brachos are made prior to lighting, seems to hold that all 3 brachos are made on the act of doing the mitzvah. It is only when one doesn't get to do the mitzvah do we still give him the opportunity to make brachos on just seeing the light.
This may be dependent on another machlokes (also cited by the Ritva). One who hasn't yet lit, but intends on lighting later, should he make the brachos of she'asa nissim and she'hechiyanu when he sees the candles of someone else burning (Rashi), or should he wait to make the brachos on his own lighting at home [The Ran goes a step further and says that even if one will not hear brachos because he is travelling but they are lighting for him at home, he still doesn't make brachos on seeing someone else's candles burning]. Rashi understands that even when one lights, they are essentially making she'asa nissim and she'hechiyanu on the seeing of the candles burning, not on the doing of the mitzvah, therefore they may as well make the brachos on seeing someone else's candles burning. But the other opinion holds that when they actually perform the mitzvah, the brachos are being made as part of birchos hamitzvah (and all should be made עובר לעשייתן), which is more ideal than simply making the brachos on seeing candles burning.

Tuesday, October 23, 2012

Shabbos 22a - Bizuy Mitzvah (Degrading a Mitzvah)

The Gemara learns out from a pasuk that there is an issur for one to do mitzvos in a degrading fashion. One cannot do the mitzvah of kisuy ha'dam, covering the blood of a bird or chaya by simply kicking the dirt, but rather must place it with their hand. Most achronim (Chareidim, Aderes, Chayei Adam 68:2, to the exclusion of the Rosh Yosef - I discussed this in my sefer Nasiach B'hukecha page 32 and in the not yet printed additions) understand that it is a real drasha, meaning that it is considered d'oraysa. Furthermore, in my sefer I assumed that the Chayei Adam even understood that the limud from here to other mitzvos such as using the succah decorations for the duration of succos which the gemara considers a bizuy mitzvah, or lighting a cigarette from chanuka candles would be a Torah prohibition of Bizuy Mitzvah. The Chayei Adam points to Rashi d.h. Avuhon d'kulho, where Rashi writes that all other forms of bizuy mitzvah are learned from the mitzvah of kisuy ha'dam, implying that all the examples of bizuy mitzvah mentioned in the gemara are assur according to the Torah.
However, it is very possible that even if we assume that the drasha of the gemara is a real drasha and that there is indeed an issur d'oraysa to kich up the dirt, it won't apply to the other cases of the gemara. Although the concept is not a gezeiras ha'kasuv and would be d'oraysa by cases that are similar to kisuy ha'dam, it would not be d'oraysa by the succah decorations or lighting something from Chanuka candles. The case of kisuy ha'dam is where one is actually performing a mitzvah in a degrading fashion such as kicking up dirt. Anything similar to that such as one who performs the act of a mitzvah in a derech bizayon it would be considered an issur d'oraysa. However, the cases of succah decorations and lighting something with a chanuka candle are very different. In those situations he is using the object of the mitzvah for something mundane that has no kedusha or mitzvah relevance, but he isn't actually degrading the mitzvah while performing it. The object of a mitzvah may only be associated with a mitzvah on a Rabbinic level, as we find that the concept of being הוקצה למצותה as discussed by Tosafos is only a d'rabonon violation. Therefore, it seems logical that the benefit one derives from an object that only is "designated" for the mitzvah on a d'rabonon level, should only be a d'rabonon violation. In my sefer pg. 36 (note 9) I tried to deduce from Tosafos that the bizuy mitzvah of using succah decorations is only d'rabonon.
Assuming that this is correct, performing a mitzvah in a degrading fashion is a Torah violation of bizuy mitzvah, whereas using an object of a mitzvah for something mundane is a Rabbinic form of bizuy mitzvah, it leads to another question. If one were to perform a mitzvah d'rabonon in a degrading fashion similar to kicking up dirt of kisuy ha'dam, would that be a Torah violation or merely a Rabbinic violation. On one hand it would seem to be only Rabbinic because the entire mitzvah is only d'rabonon, but on the other hand, he is doing avodas Hashem in a degrading way which may be a Torah prohibition, even though the actual mitzvah is only d'rabonon. Just as Rav Moshe writes in a teshuva that hidur mitzvah applies m'doraysa to the talis that we wear in shul because it is an object associated with service of Hashem, similarly bizuy mitzvah may apply to any action that is done as avodas Hashem. וצריך עיון.

Monday, October 22, 2012

Shabbos 21a - Bad Wicks and Oils

The Mishna gives a list of bad wicks and oils, and the gemara explains that the problem with them is that they flicker and don't burn well. However, the gemara doesn't say why this is so problematic. There seem to be 3 approaches. Rashi writes that there is a concern that you will adjust the candle to make the flame burn better, thereby violating Shabbos. The Rambam (pirush hamishna) writes that if the flame flickers, one is likely to leave the room thereby undermining the entire purpose of lighting candles for shabbos [However, in Hil. Shabbos (5:8) he concurs with Rashi]. The Rambam's approach is to equate the bad burning oils with the bad smelling oils where the gemara says explicitly that the concern is that you will leave the room. There is a third approach cited in the Tosafos Yeshanim (printed in the vilna edition, bottom right margin) that is similar to the Rambam who say that the concern is that the flame will actually extinguish and will undermine the entire purpose of the candles which are to allow for shalom bayis.
The approach of the Tosafos Yeshanim is similar to that of the Rambam, and even helps avoid the Rashash's question. The Rashash asks on the approach of the Rambam, why would someone leave a room with poor lighting and prefer a dark room with on light? According to the Tosafos Yeshanim the concern is that the candle will go out completely and undermine its purpose. The main distinction between the approach of Rashi and that of the Rambam and Tosafos Yeshanim is that Rashi's problem applies to all the candles in the home, whereas the issue of the Rambam and Tosafos Yeshanim only applies to the candle with which the mitzvah was performed.
In the context of Chanuka, Tosafos asks on the opinion who says that one cannot use bad wick and oils on shabbos chanuka because one is allowed to use the light and may come to adjust it. Why not say that just as one can't use bad wick and oils for chanuka candles during the week because of כבתה זקוק לה, one must relight if it goes out, for that same reason it can't be used on Shabbos? The Rashash points out that Rashi seems to answer this question by adding the words - דלמא פשע ולא מתקן לה. Meaning, we aren't concerned for the candles going out on Friday night because since it is prohibited to relight it, the person is considered an a'nus and is not in violation of anything. Rather, the concern is that he will be neglectful and not relight the candles when he is able to. This reason only applies during the week, compelling the gemara to resort to another rationale on shabbos, namely - מותר להשתמש לאורה and therefore there is a concern of adjusting the light.
Rashi's approach answers a much more fundamental question. The implication is that when chazal forbid the use of bad wicks and oils, they even forbid their use when there is no alternative. In the context of Shabbos where the concern is adjusting the flame and violating Shabbos, it makes sense for chazal to say that it's better to skip the mitzvah altogether, than to light candles in a way that may lead you to violate shabbos. But, in the context of Chanuka, if one has not better wick an oils, does it make sense to tell him to not light at all out of a concern of them going out? Wouldn't it be better to light the bad wicks and oils based on the chance that they will stay lit and he will fulfill the mitzvah? According to Rashi this question can be answered. Had Chazal permitted the use of the bad wicks and oils, it could lead to a situation where the person is neglectful and fails to relight when he should have. Therefore, they forbade the use of these wicks and oils creating a situation of o'nes, so that if he has nothing else he is an a'nus in not fulfilling the mitzvah.
A similar question can be asked on the Rambam and Tosafos Yeshanim back in the context of shabbos candles. Why would we say to someone who only has bad wicks and oils that he should not light at all? Wouldn't it be better to light and allow for the possibility of fulfilling the mitzvah, rather than not light at all and definitely not fulfilling the mitzvah? According to rashi who is concerned for the violation of shabbos - שמא יטה, the chance of the mitzvah isn't worth the risk of violating shabbos, but according to the Rambam and T.Y. where the concern is merely not fulfilling the mitzvah, it is better to use the bad wicks an oils rather than use nothing!? Perhaps they understand that the entire mishna is speaking when one has an alternative to light with proper wicks and oils, but in the absence of an alternative, something is still better than nothing.

Thursday, October 18, 2012

Shabbos 17b - Construction on Shabbos

Rabbeinu Tam permitted one to hire workers בקבלנות, which means they are paid for the job and not encouraged to work on shabbos. Tosafos writes that he proves his heter from our mishna. Just as one is allowed to give hides to a tanner knowing that he will tan the hides on shabbos, so long as he doesn't need to tan them on shabbos, similarly one can hire gentile workers who will be working on shabbos so long as they can choose not to work on shabbos. The issur of hiring workers is technically only if you are hiring them to work on shabbos, but if you hire them to do the job at their convenience and they choose to work on shabbos, that is not a problem. However, Tosafos rejects Rabbeinu Tam because whenever the goy is working on the Jews property and doing construction, it is a very public activity and people are unaware of the deal and will assume that he hired the workers by the hour to work on Shabbos. Tosafos concludes that even Rabbeinu Tam when he built his house, would not allow the workers to actually work on shabbos.

Rav Moshe (Igros Moshe 4:52) discusses a situation where a hotel owner hires a Jewish contractor who has non-jewish employees. The owner of the hotel is religious, but the contractor is not and doesn't really care about the nuances of the halacha. However, if the owner of the hotel would not allow the work to take place on shabbos, the contractor is not willing to guarantee the job. Rav Moshe writes that nowadays it is very common for property owners to hire out contractors who are paid for the job and not by the hour, therefore even according to Tosafos, the concern of people thinking that he hired the workers by the hour doesn't apply. It is similar to a field which is normal to be done using arisus, and therefore permitted (as Tosafos Yeshanim brings). However, if the work is going to be done 7 days a week so that the Jewish hotel owner is actually benefiting from it being done on shabbos, it is assur. But, if the workers are going to work on shabbos and take off sunday, since they could just as easily work on sunday and take off on shabbos, it is mutar. This is all from the perspective of the hotel owner, but from the perspective of the contractor, even if he agrees to hire the workers by the job and not pay them by the hour, it is still a problem since it is very normal for contractors to hire by the hour, and therefore the ma'aris ayin problem of Tosafos applies. Therefore, the only approach to allow this would be for the contractor to sell the business on shabbos to his workers, which Rav Moshe is not happy about - קשה לעשות בדור פרוץ כזה וגם מפורסם שהוא של ישראל. 

Shabbos 17a - Like the day of the Golden Calf

The gemara makes strange comparison. On the day which they imposed the 18 gezeiros, it says that it was קשה לישראל כיום שנעשה בו העגל, a difficult day for the Jews as the day they made the golden calf. In what way was it like the day of the golden calf? Rashi says that it is a continuation of the previous sentence, ואותו היום היה הלל כפוף ויושב לפני שמאי כאחד מן התלמידים, Hillel who was the Nassi was being mistreated and embarrassed into sitting in front of Shamai like one of the students. The humility of Hillel in allowing himself to be treated this way was a bizayon to Torah and therefore compared tot he day of the eigel. Following this approach the Minchas Bikurim on the Tosefta writes that just as the day of the eigel was a rejection of the Nasi, Moshe Rabbeinu, so too this day was a rejection of the Nasi, Hillel. Another possibility as to what Rashi means to say is that just as on the day of the Eigel, Aharon had a misplaced humility and didn't force them down, here too Hillel had a misplaced humility and allowed himself to be trampled by Shamai.
In the Tosefta 1:8 the statement of Hillel being forced to sit in front of Shamai is missing. In truth Tosafos 14b struggles with the idea that Hillel and Shamai were actually present on the day of the gezeiros of the 18 things - they were gezeiros of Beis Shamai and Beis Hillel, not Hillel and Shamai.  According to the Tosefta that doesn't force us to say that Hillel himself was mistreated on that day, what is the comparison with the day of the eigel? The Minchas Bikurim on the Tosefta offers another explanation. Until that day, machlokes was very limited. There were only 3 arguments between Shamai and Hillel, but on that day machlokes became prevalent and widespread and it was like two toras were developing in the Jewish people. He is subtly referencing the Gemara in Yevamos 13b where one cannot act like Beis Shamai in a place of Beis Hillel and visa versa because it looks like שתי תורות.
Another suggestion as to why it was such a difficult day, I found in Lieberman's commentary on the Tosefta. He suggests that Torah needs to be decided based on a fair vote and majority. Generally speaking Hillel had the majority and Beis Shamai were the sharper ones (Yevamos 14a). However, on that day they happened to have a majority as Rashi comments on the Mishna 13b, and they took advantage of that majority by not letting anyone out and forcing a vote as rashi says on 17a. Torah needs to be decided by a fair אחרי רבים להטות, not a imposed and forced majority. Therefore, this event essentially undermined the Torah, just as the eigel undermined the Torah.
The Yefei Einayim cites a Tosafos in Gittin 36b that quotes a Yerushalmi that the students of Beis Shamai became so militant that they were killing the students of Hillel. That is why it was a terrible day, just like the day of the eigel where b'nei levi were forced to kill their brothers and sisters.

Wednesday, October 17, 2012

Shabbos 16b - Tovelling Glass

The gemara has two approaches as to why the Rabbonon were gozer tu'mah on glass vessels. One approach is that they are comparable to metal vessels since they can be melted down and reformed, just that chazal intentionally implemented some distinctions so that it will be clear that it is only d'rbaonon (so that one is not misled to burn teruma and kodshim after coming into contact with them). The second approach (Rav Ashi) is that they are comparable to earthenware vessels since they are made from sand, just that chazal were slightly more machmir by glass allowing the vessel to become tamei from the outside (since they are transparent, even the outside qualifies as the inside).
Tosafos 16b (d.h. rav ashi) points out that the gemara in Avoda Zara 75b (citing Rav Ashi) compares glass vessels to metal and imposes on them a requirement of tevillah when they are purchased from a goy. Why in the context of tevillah for new vessels does Rav Ashi compare glass to metal to require tevillah, whereas in the context of tu'mah he compares them to metal?
The Ritva writes that really it is similar to both, but in the context of being go'zer on tu'mah, the rabbonon didn't want to spread tu'mah more than necessary so they compared it to earthenware in order to limit the spread of tu'mah. But in the context of the mitzvah of tevilas keilim they were machmir to consider it like metal vessels.
However, Tosafos 16a d.h. ela, writes that even when the gemara compares glass to metal, it isn't completely retracting from it's initial approach to compare them to earthenware. The logic of being able to be melted down and reformed making it similar to metal, isn't sufficient by itself to compel a gezeira of tu'mah. They considered glass similar to earthenware in the primary gezeira, but then made it a little more machmir to receive tu'mah even from the outside since it has some property of metal (able to be melted down). According to this Tosafos, the gemara in Avoda Zara that requires tevila for glass since it has the property of metal in that it can be melted down and reformed, is very difficult. Why is that logic enough to compel a mitzvah of tevillah, and not enough to compel susceptibility to tu'mah?

Tuesday, October 16, 2012

Shabbos 15 - Decree of Tu'mah Outside of Eretz Yisroel

The gemara concludes that there were 3 gezeiros made on ארץ העמים, all lands outside of E.Y. Originally the יוסי בן יועזר ויוסי בין יוחנן made a gezeira that any Teruma that comes into contact with the land of eretz ha'amim is safeik tamie, the Rabbonon of 80 years prior to churban widened the gezeira that even teruma that is in air space of eretz ha'amim is safeik tamei, and when the Sanhedrin went into exile and were in Usha they decreed that the land itself is m'tamei vadai even to burn teruma, and the air remains safeik.
How are Kohanim lenient nowadays to live outside of E.Y. and not be concerned with tu'mah of eretz ha'amim?
The Shach (hil. aveilus) writes that since nowadays there is just as much tu'mah in E.Y., there is no advantage to E.Y. over eretz ha'amim. However, R. Akiva Eiger cites the Rikash who says that the reason people are lenient nowadays is either because they need to for parnasa or since we are all assumed to be tamei meisim anyway, it doesn't matter. The second approach seems to suggest that for a tu'mah d'rabonon such as eretz ha'amim we can rely on the Ra'avad who says that once someone is already tamei, there is not issur to make themselves tamei again. On the other hand, Pischei Teshuva (5) citing Shevus Ya'acov seems to uphold the gezeira of eretz ha'amim even nowadays.

Monday, October 15, 2012

Shabbos 14a - Showering after the Mikva

The gemara says that two of the 18 gezeiros that were made by Chananya ben Chizkiya, were that one who immerses rosho v'rubo in drawn water after going to the mikva, and even one who has drawn water poured on them (even without going to the mikva), they become tamei. The rationale for this gezeira was that since people were bathing and showering after using the mikva, people began to think that it was the bath and shower that worked to make them tahor and stopped using the smelly mikva. Therefore, chazal had to forbid bathing and showering to prevent people from using a bath and shower as the mikvah.
Based on this concept, the Rama in the end of Hilchos Mikvaos (101), writes that some hold that after going to the mikvah, a woman shouldn't bathe or shower. The source of this Rama is the Ra'vya cited by the Mordechai in the second perek of Shavuos. The actual concern should apply equally to a tamei person and a Nidah to be permitted to her husband. Perhaps if a woman bathes after using the mikvah she will be misled into believing that it was the bath or shower that helped remove her tu'mah status. However, Rav Moshe (Igros Moshe Y.D. 2:96) points out that this opinion who forbids bathing for a Nida is only a da'as yachid. Technically, the gemara's gezeira only applied to Teruma because the entire nature of the gezeira was not that the bath or shower retroactively invalidates the immersion. Rather the nature of the gezeira was that it imposes a new tu'mah status on the person to make them passul from eating Teruma, as Rashi explains. Furthermore, the very fact that they extended this gezeira to one who has 3 lug of drawn water poured on them, which is not an act of tevila, clearly indicates that the nature of the gezeira was to impose a new status of Tumah on the person that was caused by the drawn water, not to invalidate the tevila in any way. Furthermore, even if it were to invalidate the tevilah, it was only said in the context of tu'mah, whereas the prohibition of a Nidah to be with her husband is a second consequence of becoming a Nida but not at all an outgrowth of her tu'mah status.
Therefore, Rav Moshe is confident that even those who extend this gemara to include a Nidah and say that if she bathes it somehow impacts the tevila and would prevent her from being with her husband, that is only if it is done immediately after the tevilah, or at least on the same day. But if a woman bathes 24 hours after immersion in a mikvah, there is no issue at all. Although in the gemara we find this gezeira extended even to a tahor person who is not going through a tevila process, that is because we are only invalidating him for teruma, but we couldn't possibly say that for a Nida, because if that would be the case it would always be forbidden for her to bathe. Even in the case in the gemara, Rashi 13b says that they only were gozer on one who bathed on the same day as the tevilah. Therefore, Rav Moshe assumes that the minhag would only apply for the duration of the day of tevilah, meaning the first 24 hours. For a woman who is very particular about not going 24hrs without a shower, he permits her to bathe or shower even on the same day as going to the mikvah since this opinion is only a da'as yachid and only a minhag which was accepted in situations that wouldn't cause serious discomfort.

Sunday, October 14, 2012

Shabbos 13a - Hugging and Kissing Daughters and Grand Daughters - Is is halachically permissible?

The gemara says that Ulah would kiss his sister, and then says that he contradicted his own opinion that any expression of intimacy is forbidden for the arayos based on the concept of לך לך אמרין נזירא, meaning that we build a fence to prevent violations. Tosafos explains that for Ulah it wasn't an inherent contradiction. U'lah held that for arayos such as a sister for which there is no natural attraction, the nature of the issur is only preventative, therefore since he knew about himself that this behavior wouldn't lead to improper thoughts it was permitted.
Rav Moshe Feinstein (Dibros, Hearah 78) asks, how does the gemara know that there is any contradiction, perhaps it is permitted to kiss those arayos for which one doesn't have any desire for, and the statement of Ulah which forbids is speaking about the other arayos? Rav Moshe explains that for other arayos for which there is a desire, it is an inherent prohibition to kiss and hug (either d'oraysa according to rambam or d'rabonon according to ramban), and wouldn't be referred to as a issur due to לך לך אמרין נזירא, which implies it is a lower level, preventative type issur. Since Ulah only forbade it based on לך לך אמרין נזירא, it must be speaking about a sister and other arayos such as a mothers sister for which one has no desire.
The Rambam (Issurei Biah 21:6) writes:
המחבק אחת מן העריות שאין לבו של אדם נוקפו עליהן או שנשק לאחת מהן כגון אחותו הגדולה ואחות אמו וכיוצ"ב אע"פ שאין שם תאוה ולא הנאה כלל, הרי זה מגונה ביותר ודבר אסור הוא ומעשה טפשים, שאין קרבין לערוה כלל בין גדולה בין קטנה חוץ מהאם לבנה והאב לבתו
The Magid Mishna explains that the source of this Rambam is our gemara, where for U'lah it was permitted but for others is a violation of לך לך אמרין נזירא. Rav Moshe explains that the language of the Rambam implies that is isn't really an issur therefore he uses the language of issur only after using the language of meguneh, to indicate it is a לך לך אמרין נזירא level issur. A real issur d'rabonon could never be called a ma'aseh tipshus and meguneh.
The Rambam makes an exception for a father/daughter and mother/son. The Beis Shmuel (21:14) extends this heter to בת בתו as well (which is against the Ran who says that a father can only kiss his daughter but not his granddaughter). In the next halacha the Rambam says that although when they are young a father may kiss his daughter and sleep in the same bed as her, after she matures (same with mother and son), it is forbidden. The Rambam also writes that if they are married, it also becomes an issur. However, it is not clear from the Rambam whether after they mature physically it is forbidden only to sleep in the same bed with, or also forbidden to hug and kiss. The Beis Shmuel (15) cites the Prisha that a father may hug and kiss a daughter (and mother a son) even after they reach physical maturity. Rav Moshe (Dibros) assumes that the heter to hug and kiss a granddaughter would also apply after she reaches physical maturity. However, in the Igros Moshe (E.H. 1:60) Rav Moshe writes that there is a rationale to distinguish between a son's daughter and a daughter's daughter. Perhaps the Beis Shmuel only permits בת בתו because it won't lead to any hirhurim since one has not desire for בתו, but בת בנו may remind one of his daughter in law for which there is a desire and therefore forbidden. Rav Moshe holds that this is an area which the poskim weren't machriah in, therefore if one wants to be lenient to hug and kiss בת בנו, there is grounds to be lenient, but there is also reason to be machmir.
Rav Moshe seems to contradict himself between the Igros and Dibros as to whether one may hug and kiss a daugher and grand daughter (בת בתו) after she is married. In the Dibros Moshe he writes that marriage makes her like a gedolah, but not worse than a gedolah, so it is still permitted to hug and kiss her, and only forbidden to put her in your lap which is like sleeping in the same bed. However, in the Igros Moshe, he seems to hold that once she is married, it is forbidden to hug and kiss a daughter and grand daughter. Rav Moshe explains that once they are married and intimate with their husband, there is a greater concern of any physical contact leading to hirhurim.
In short - Hugging and kissing a daughter is permitted. A daughter's daughter is also permitted according to Beis Shmuel (which we pasken like, against the Ran). Rav Moshe has some reservations about a son's daughter and says that a ba'al nefesh should be machmir. This even applies when they are adults, but Rav Moshe seems to contradict himself regarding a married daughter and grand daughter whether hugging and kissing is permitted (it seems more logical to permit, since the chiddush is that a married girl is like a gedolah even when she is a ketana, but we don't see a source for her being worse than a gedolah).

Shabbos 12a - Nichum Aveilim on Shabbos

The gemara cites a machlokes beis shamai and beis hillel about activities that are violations of ממצוא חפצך such as making shidduchim and teaching a profession and therefore may not be able to be done on shabbos. R. Moshe (Hea'ros in Dibros) explains that really everyone holds that חפציך are forbidden, but חפצי שמים - mitzvah type activities are permitted. However, these activities are types of things that one would do even if there was no mitzvah element to them at all. Everyone wants to marry off their children and give them an education despite the mitzvah element. It is different than other mitzvah type of activities that one is really doing for the mitzvah, just that they sometimes need a שלא לשמה motivation to do the mitzvah. Therefore, Beis Shamai holds that these activities are considered חפצך which is assur, and Beis Hillel considers them חפצי שמים and are permitted. Based on this approach, both visiting the sick and comforting mourners qualify as חפצי שמים and should be permitted. That is why Rashi needs to create another rationale to forbid those activities, due to the fact that they cause pain to the visitor on shabbos.
Why doesn't Beis Shamai agree that one can visit the sick and comfort those mourning on shabbos, and just tell them to overcome the pain that they will feel? Just as we find in the gemara in brachos and succah that one who's ship is sinking is not considered a טרדא to exempt them from Shema because it is a טרדא דרשות so they are obligated to work on overcoming it. Here too, we should consider the feeling of pain with the mourner or sick to be a tza'ar of reshus and tell him to get over it? Rashi seems to understand that the nature of the mitzvah to visit the sick and comfort the mourning is to be מצטער אם המצטערים, to join in the pain and suffering of those who are suffering. Human nature is to get solace and be comforted by seeing others sharing in their pain. Mitzvos where the very nature and obligation of the mitzvah is to be משתתף in the tza'ar, would certainly qualify as a mitzvah. Therefore, Beis Shamai could not say get over it since the would undermine the very nature of these mitzvos. Beis Hillel who holds that one can do these things on shabbos is because we consider them to be important acts of chessed so that יצא הפסדו בשכרו, the loss of minor violations of shabbos will be compensated by the gain of the chessed that is done. That is the implication of the gemara 12b בקושי התירו לנחם אבלים ולבקר חולים בשבת. Based on this we learn that one who visits the sick or comforts the mourning and doesn't show that they are mitz'taer with the one suffering, hasn't really fulfilled the mitzvah.

Friday, October 12, 2012

Shabbos 10a - Toraso U'mnaso

The gemara says that one who is studying Torah must stop for Krias Shema, but for davening one must only stop if he is not "toraso u'mnaso" - meaning that he stops learning to work, to the exclusion of R. Shimon Bar Yochai who was toraso u'mnaso would not stop learning for davening. Rashi explains that the difference between shema and davening is that shema is d'oraysa to be read within certain times whereas the times for tefillah are only d'rabonon [Rashi implies that he holds like the Rambam that davening everyday is d'oraysa, just that the z'man tefila is what R. Shimon Bar Yochai was allowed to miss since it is only d'rabonon]. The Ran points out that although in the context of the beginning of the mishna regarding work, one must stop before missing the z'man tefillah, in the context of studying Torah the אין מפסיקין means that you don't need to stop even if you are going to miss the time. The Ran proves this from the fact that we only allow this for one who is torasa u'mnaso and not for others. If we were speaking about stopping Torah study even when there is time to daven later, even one who is not toraso u'mnaso can continue studying and doesn't need to stop - ואי בדאיכא שהות, כגון אנו למה מפסיקין, וכי אסור לעסוק בתורה קודם שיתפלל. The Ran takes for granted that there is no prohibition to learn before davening. However, in Brachos 5b, Rashi seems to say that there is a prohibition to learn before davening, and Tosafos there takes issue with that and assumes like the Ran.

What is the rationale to distinguish between those who are תורתן אומנתן and those who are not torasan u'mnasan? Rashi writes that those who stop for other activities such as work, must also stop for davening. This can be explained in two ways: 1. The Chofetz Chaim in Shemiras Halashon in a note writes that just as when it comes to issurim we find a concept of achashevei, which means that something inedible that you eat and give chashivus to, is considered food, here too. Those who refuse to stop learning to earn a living and are achshevei their Torah study to give it such value, it truly has more value and becomes more important than tefillah. But for those who don't give their Torah that level of chashivus, it is considered to be worth less than tefilla so they must stop to daven. 2. I would like to suggest another approach based on the gemara 10a that considers tefillah to be chayei sha'ah since one is praying for physical needs on this world, to the exclusion of Torah which is chayei olam since it is purely spiritual. Those who are involved only in chayei olam i.e. Torah, have the right to ignore chayei sha'ah i.e. tefillah. But those who break from their chayei olam to work and earn a living, since they take very physical and mundane steps to worry about their chayei sha'ah, they are obligated to also take spiritual steps to worry about chayei sha'ah. Since they stop learning to work for chayei sha'ah, they must daven for chayei sha'ah also to put things in perspective and recognize that their parnasah is from Hashem.

Thursday, October 11, 2012

Shabbos 9b - 10a - Preparing for Davening "Hakon Likras Elokecha"

The gemara says that according to the opinion that ma'ariv is only a "reshus" and not an obligation, once someone removed their belt to begin eating, we don't require them to put it back on to daven ma'ariv before eating. The gemara asks on that two questions: 1. Is it such a difficulty to put the belt back on that we would allow him to continue his meal without davening? 2. If putting back on the belt is so difficult, let him daven without a belt? Tosafos explains that the gemara ignores the first question (apparently acknowledging that it is too much of a tircha to put back on the belt), but answers the second question by saying that for tefillah we require - הכון לקראת אלקיך ישראל - which means that one is obligated to dress themselves up for davening. Therefore, he couldn't daven without the belt.

There seems to be a machlokes between Rashi and Tosafos regarding what exactly we would have allowed if ma'ariv is just a reshus. Rashi says that we allow him to continue his meal "and daven afterward", implying that even if ma'ariv is a reshus, the tircha of putting the belt on wouldn't exempt him from ma'ariv. We merely allow him to continue his meal provided that he finish in time to daven ma'ariv. However, Tosafos (d.h. l'man d'amar) seems to hold that for a "tzorech" such as retying the belt we would allow him to skip ma'ariv altogether according to the opinion that it is just a reshus (although tosafos would agree that for no reason at all, we wouldn't let him miss ma'ariv). This machlokes seems to influence the question and answer of the gemara. According to Rashi that we are only speaking about delaying ma'ariv until after the meal, the gemara was asking why not just daven in middle of the meal without putting the belt back on? To which the gemara answers that we prefer that he daven later when he can dress properly and fulfill the idea of הכון לקראת אלקיך ישראל. However, Tosafos holds that if ma'ariv is merely a reshus, we would allow him to skip it in order to continue his meal and not have to bother him to get dressed again. According to Tosafos the question is, why not just daven during the meal without wearing the belt? To which the gemara answers, he must fulfill the הכון לקראת אלקיך ישראל. This seems very difficult. According to Rashi the gemara is simply saying that we prefer that he daven after redressing and looking presentable as opposed to davening during the meal. But according to Tosafos the gemara seems to be saying that we would allow him to skip ma'ariv altogether since he can't fulfill the aspect of הכון לקראת אלקיך ישראל. Isn't it better to daven without the fulfillment of הכון לקראת אלקיך ישראל, rather than not davening at all?
Clearly, Tosafos holds that הכון לקראת אלקיך ישראל is not just a method of beautifying the davening by looking more presentable. Rather Tosafos holds that if one is going to daven they are essentially placing themselves before G-d and have an absolute obligation to appear presentable - הכון לקראת אלקיך ישראל. Therefore, it is better to forgo the davening altogether than to stand before Hashem without dressing properly. In other words, הכון is not just a detail in adorning the davening, to which we would say it is better to daven without that adornment than not to daven at all. Tosafos holds that it is the only way one can choose to stand before Hashem, even if it will be at the expense of skipping the entire davening.
The concept can be better illustrated based on the last Brisker Rav in his sefer on parshas breishis. The Brisker Rav takes note of the fact that Adam and Chava tried to hide from Hashem after eating from the eitz ha'da'as. Although Hashem expresses anger at them for being eating, He never accuses them of being so foolish as to think that they can hide from G-d. This implies that the hiding was actually an appropriate behavior under the circumstances. The Brisker Rav explains this based on a Rashi in BRachos 24a that one can read shema with a cloth wrapped around their waste (when the upper part of their body isn't covered), but cannot daven that way. Rashi explains:
דלתפלה צריך הוא להראות את עצמו כעומד לפני המלך ולעמוד באימה, אבל ק"ש אינו מדבר לפני המלך.
Davening is essentially standing before Hashem, and when one does that they need a greater level of tznius and covering. When Adam and Chava ate from the tree and realized their nakedness, they at first were able to just cover the bottom half of their bodies. But when they heard Hashem's sound passing through the garden, they were obligated to hide themselves before G-d's presence to cover the top of their body as well, just as one would when davening to Hashem. This is the same point that Tosafos seems to hold in regard to הכון. It isn't a stipulation of davening, it is a stipulation of standing before Hashem, and therefore worth forgoing the entire davening rather than violating standing befoer Hashem in a disrespectful fashion.

Friday, October 05, 2012

Shabbos 4a - Listening to Chachamim to Violate an Issur

The gemara on 3b has a discussion whether the Rabbonon would make a gezeira or k'nas to prevent someone from doing an action that will save them from a Torah violation. The two examples are when one sticks out their hand holding an object from reshus hayachid to reshus harabim - would chachamim forbid him from drawing his hand back into reshus hayachid? By preventing him from drawing his hand back, he is likely to let go of the object as the hours of shabbos pass, thereby violate an issur d'oraysa. Similarly, if one stuck bread to the side of an oven on shabbos, would the chachamim prevent him from removing it (which is generally a rabbinic prohibition), or would they be lax since by preventing the removal of the bread, he will violate a Torah prohibition. The issue that is being discussed is whether the Rabbonon would impose a restriction that will cause a torah violation. One possibility is that they wouldn't, but another possibility is that they would look at the bigger picture and by imposing an issur, although in this case they will be causing a chilul shabbos, in general they will be preventing chilul shabbos. Although by the removal of the bread we conclude that one is allowed to remove it, by the hand that one stuck out on shabbos, many rishonim pasken that if done b'meizid we forbid him from drawing his hand back in.
However, Tosafos d.h. kodem, asks a very interesting question. Regardless of whether chazal would or would not impose the prohibition, who would listen to them? Tosafos asks that if by listening to them one would receive capital punishment, one would certainly not listen. But even if one wouldn't actually receive capital punishment, when faced with the possibility of a Torah violation or a Rabbinic one, wouldn't it make more sense to violate the Rabbinic prohibition? Tosafos answers that by the chachamim preventing you from pulling your hand back or from removing the bread, they are actually making it so that the violation was purely b'ones, and one is not liable for that. Meaning, by imposing their restriction they are essentially reducing the violation by making it so that the individual is אנוס בתקנת חכמים, and therefore not liable for the initial violation. According to this it makes more sense why chazal would consider imposing the restriction since even for the individual case, they are not making things worse for the person, they are actually making things better for him because even if decides not to fix the problem, he won't be chayev for his violation. However, if they don't impose the prohibition and one decides not to fix the problem (such as by removing the bread or withdrawing his hand) he will be chayev for the violation.

Wednesday, October 03, 2012

Shabbos 3a - Assisting in an Issur

The Mishna speaks about a case where the Ba'al Habayis is holding something in his hand from which the Ani takes, pulls out, and places down. The Ani is chayev a chatas for carrying out, and the ba'al habayis is patur. The gemara explains that it is patur u'mutar, meaning that the ba'al habayis didn't do any violation at all. Tosafos (top of 3a) asks why don't we consider the ba'al habayis to be in violation of lifnei iver, by providing the Ani with the possibility to carry out? Tosafos explains that even if it were a situation where the Ani were capable of picking it up without the Ba'al habayis lifting it up for him to take, it should still qualify as מסייע ידי עוברי עבירה - assisting someone in doing an aveira which is an issur d'rabonon? Tosafos answers that we must be speaking about a goy in a way where there is no ma'aris ayin because the object being carried out belongs to the goy. The Rosh disagrees and says simply that the gemara just means that no issur shabbos was violated, but there was certainly another issur d'rabonon violated. R. Akiva Eiger points out that if an issur shabbos were violated even accidentally the person would assume a status of מחלל שבת בפרהסיא even for the violation of a d'rabonon, whereas if an issur of מסייע ידי עוברי עבירה were violated, they wouldn't have such a status.
Regarding the exact nature of the violation to be מסייע ידי עוברי עבירה  is a discussion itself. The Rosh writes that since we find a discussion about whether one must stop a child from doing an issur, the implication is that one must certainly stop an adult. Since one is obligated to stop an adult from doing an issur, they are certainly not allowed to assist in the violation. However, the Maharatz Chiyus cites the Rambam in sefer hamitzvos who says that the source for the issur to assist someone in doing an issur is the mitzvah of tochacha. Perhaps a difference between the two approaches is whether מסייע ידי עוברי עבירה can be considered an issur d'oraysa. According to the Rambam that it's based on the obligation to rebuke it would be d'oraysa, but according to the Rosh it would seem to only be d'rabonon. Another possible distinction is whether it would apply to assisting someone in not doing a positive mitzvah that is incumbent upon them. If the source is tochacha, it would apply to positive mitzvos as well, but if the source is an obligation to prevent people from doing issurim, it may only apply to negative violations and not positive mitzvos.