Monday, December 30, 2013

Yoma 54a - A goy Making Tzuros for a Jew

The gemara says that there were tzuros of keruvim that were painted and carved into the wall of the beis hamikdash which were there even in the second beis hamikdash, after the keruvim on the Aron and the keruvim of Shlomo that stood on the floor were no longer present.
Tosafos launches into a discussion as to how there can be animal pictures printed in the machzorim. Although Tosafos begins by saying that pictures in siddurim and machzorim serve as a distraction so they are not a good thing, it is nonetheless permitted. Tosafos begins by saying we find that Rabban Gamliel had tzuros of the moon that he would show to the witnesses who came to testify about rosh chodesh, and the gemara says that although they are forbidden to make, "others made it for him". Meaning, it was done by goyim. Although the gemara says that it would still be forbidden to own and maintain, due to chashad (Rabban Gamliel was an exception since there were always people there so there was no chashad), Tosafos explains that since the pictures in the machzorim are not 3 dimensional, there is no chashad. There are 3 stages in Tosafos. In stage one the implication is that it would be forbidden for a Jew to make these tzuros in the machzorim, and it was only permitted to be maintained since it was not 3 dimensional. In the second stage Tosafos proceeds to explain that since they are not 3 dimensional, it is even permitted for a Jew to actually make pictures of these animals. In the final stage Tosafos explains that since the pictures were of animals, not of human faces, there is no prohibition whatsoever even to make 3 dimensional pictures.
R. Akiva Eiger, in the Gilyon HaShas asks that according to the first stage of Tosafos where it was forbidden for a Jew to make, but permitted because it was made by goyim, there should be an issur of amirah l'nachri? The Tosafos in Rosh Hashana explains that the only reason that Rabban Gamliel was able to have them made by goyim was because it was for a mitzvah purpose, implying that without that advantage it would be an issur d'rbonon of amirah l'nachri. Why then would it be permitted here to have a goy do it?
In truth the placement of R. Akiva Eiger's question is difficult. At the end of Tosafos because the distinction at the beginning of Tosafos is only a hava amina before Tosafos develops that there is no issur at all. In the end of Tosafos they make a practical distinction between the mador elyon and mador tachton, whether they can be made by others. R. Akiva Eiger could have asked his question on what Tosafos actually concludes. The Rashash rejects the question of R. Akiva Eiger by saying that we are not dealing from the perspective of those making it, we are dealing from the perspective of once it was already done whether it can be maintained. It may be assur to commission a goy to make it, but once it is done there is no issur in purchasing the machzor and using it.

Tuesday, December 24, 2013

Yoma 46b - Hutra or Dechuya

The Rambam writes that Shabbos is dechuya in a situation of pikuach nefesh. The Kesef Mishna says that his source is from tu'mah where we pasken it is dechuya and not hutra. The Maharatz Chiyus asks from our gemara. How does the kesef mishna assume that since tu'mah is only dechuya, therefore shabbos is also only dechuya? Our gemara makes an assumption that shabbos is hutra for the korban tamid, yet tu'mah is only dechuya. We see from here that although tu'mah is only dechuya, shabbos can be hutra, so how does the kesef mishna make the assumption that they should be the same?
In my opinion the kesef mishna is correct. The issue is not a shabbos vs. tu'mah issue, rather the reason our gemara assumes that shabbos is hutra for korban tamid is because the mitzvah of korban tamid is meant to be done on shabbos. The system was set up with the natural conflict and the resolution being to bring the korban tamid even on shabbos, therefore rendering it hutra. However, when the two events conflict by chance or by circumstance, then it is dechuya, not hutra. Therefore, tu'mah b'tzibur is only d'chuya. Shabbos in the place of pikuach nefesh is also only dechuya because it is just circumstances of someone being in a life threatening situation that creates the conflict. Therefore, it is legitimate to learn shabbos for pikuach nefesh from tu'mah, and not learn from shabbos for korban tamid.

Friday, December 20, 2013

Yoma 42a - Is a kattan a la'av bar da'as?

The gemara quotes a mishna in Parah where the Tana Kama and R. Yehuda argue who is kasher for the kiddush (mixing ash and water) of parah adumah. T.K. holds that a חרש שוטה וקטן cannot do it, but a woman can. R.Y. holds the exact opposite, a woman cannot, but a child can. Regarding the machlokes of whether a woman can do it, the gemara says that they argue whether ונתן is meant to exclude ונתנה. But regarding the machlokes of whether a child can do it, the gemara says that they argue whether we darshen ולקחו to be inclusive, and therefore forcing us to include a child. It is understandable that R. Yehuda would normally exclude חרש שוטה וקטן from everything, but here the pasuk forces an inclusion. But why does he just include a child and not a חרש ושוטה? Tosafos writes: והא דמכשיר טפי בקטן במחרש ושוטה, יש לומר משום דאתי לכלל דעת. Since a child will out grow his לאו בר דעת status, it is more logical to include a child, rather than including a חרש ושוטה who are permanently fixed in their לאו בר דעת status.
The Chazon Ish (Parah 11:11) points out that when we include a child, we are obviously only including a child who is of age to make rationale decisions and would objectively be considered a בר דעת if not for the Torah excluding him. A child who is so young that he is essentially a שוטה would certainly be passul even according to R. Yehuda both for kiddush of the ash and water, and for the sprinkling. The machlokes is only about a child who has some level of intellect that we would consider a בר דעת in general - אלא שגזירת מלך הוא שאין דעתו מספקת במצות התורה אם לא היכי דאתרבי.
From the Chazon Ish it sounds like the real distinction between a child and a חרש ושוטה is that the latter are essentially not בר דעת, whereas a child has achieved some level of da'as that requires a גזירת התורה to consider insufficient for mitzvos. Therefore, if we have a pasuk we apply it to include a child faster than applying it to include a חרש ושוטה.
To me it seems that this approach doesn't fit well in Tosafos. If the advantage of a קטן is that he actually has a higher level of intellect that a חרש ושוטה, why would Tosafos write that his advantage is that he is אתי לכלל דעת, meaning he will come to be a bar da'as, rather than writing that he is included because he is already a higher level intellect than a חרש ושוטה. To me it seems from Tosafos that we are speaking about a child who is no more rational than a חרש ושוטה, yet we include him for kiddush since he has the advantage that he will become a bar da'as. The sevara seems to be that although he is no better now, it is a מום עובר, a blemish that will pass in due time. Since we are forced to include someone from the extra pasuk, we include a child.
Furthermore, we find that for other things we categorize a חרש together with a קטן and only consider a שוטה  to be a real לאו בר דעת. The halacha is that a child can make a kinyan when there is a דעת אחרת מקנה, someone else giving it to him. The Rambam (Mechira 29:4) implies that a shoteh cannot make a kinyan even with דעת אחרת מקנה - see magid mishna. The Ketzos (243:4) assumes that a חרש is like a child who can make a kinyan with a da'as acheres being makneh, it is only a shoteh who is a complete non-bar da'as who cannot. If the Chazon Ish were correct that the present intellect of the child is what makes him stand out, we should have included a חרש together with him since for kinyan we assume them to have the same level of intellect. The fact that we don't include a חרש for kiddush implies as Tosafos writes that the advantage of the child is not his present intellect, but rather that we regard his lack of intellect as a temporary problem.

Thursday, December 19, 2013

Yoma 42a - Saying Bifanai Nichtav on a Gett

Rav Mendel Senderovic shlit"a has a letter printed in his sefer Atzei Besamim (38), that he sent to Rav Nota Greenblatt shlit"a asking what is the appropriate language for the shliach who brings a gett to use. The halacha demands that when a shliach delivers a gett outside of EY he must declare at the time of delivery - בפני נכתב ובפני נחתם, confirming that it was written and signed in his presence. However, what often happens is that the sofer ends up as the shliach, so the question becomes whether to stick with the precise nusach of בפני נכתב ובפני נחתם that was instituted by chazal, or modify the nusach to be אני כתבתיו ובפני נחתם which is more accurate. Rav Senderovic points out that it seems to be a dispute between the Radvaz and Panim Meiros. Rav Nota responded that his custom is to say the standard בפני נכתב ובפני נחתם then to deliver the gett into the hands of the woman, and immediately to say אני כתבתיו ובפני נחתם. 
I am also in this situation quite often where I am the sofer and the shliach. I do what Rav Nota suggested and what I have seen him do (However, I didn't notice that Rav Nota was careful to say אני כתבתיו ובפני נחתם specifically after the delivery, rather he says בפני נכתב ובפני נחתם אני כתבתיו ובפני נחתם as one continuous phrase and immediately places the gett into her hands, which is what I do as well.)
There is a strong proof from the gemara on todays Daf that the language of בפני implies that it was done in your presence, but that you weren't actually the one doing it, thereby demanding a modified language so that the testimony isn't false. The gemara says that the pasuk ושחט אותה לפניו by the para aduma implies שיהא זר שוחט ואלעזר רואה. Meaning, the fact that the Torah says that it is done in the presence of Elazar implies that it is NOT done by Elazar himself, and is used as a source that the shechita of the parah doesn't need a kohein. Similarly, the language of בפני נכתב would imply that it was written by someone else in the presence of the one saying those words, but not by the person himself. Therefore it would make sense that the phrase should be modified to clearly state that the shliach himself did the writing of the gett.

Wednesday, December 11, 2013

Yoma 34b - Tziruf

The gemara asks how they were able to heat up the mikvah of the kohein gadol with hot metal since by immersing it into the water it would harden the metal and would be metzareif it which is an issur on shabbos and yom kippur. Rav Bibi says that by the time they would immerse it in the water it wouldn't be that hot and would not be metzareif the metal. Abaye disagrees and says that even if it were hot that it could come to tziruf, it was permitted since it was a דבר שאינו מתכוין. The gemara challenges this by Abaye himself who seems to understand that the pasuk permitting cutting off tzaraas to do bris milah is necessary for R. Yehuda who holds that a דבר שאינו מתכוין is assur, implying that this is Abaye's opinion. The gemara answers that on a melacha d'oraysa it would be assur even if one was not mechavein, but tziruf is only d'rabonon. Meaning that since it is a דבר שאינו מתכוין on an issur d'rabonon, it is mutar. Tosafos explains that according to Rashi tziruf would only be d'oraysa on a kli, but on a piece of metal would just be d'rabonon.

Tosafos cites the R"i who learns the gemara differently. Abaye was only suggesting that a davar she'eino miskavein was not assur on a torah level, it was only assur m'drabonon. The gemara challenges this from mila where we need a pasuk to change the default of a דבר שאינו מתכוין אסור מן התורה, and answers that since by shabbos there is an additional requirement of מלאכת מחשבת, even R. Yehuda would admit that a דבר שאינו מתכוין by shabbos would only be drabonon. Since it is only d'rabonon, we are meikel in the beis hamikdash for the need of the avoda. Based on Tosafos we can prove that R. Yehuda only considers a דבר שאינו מתכוין to be an issur d'oraysa by other issurim, but not by Shabbos.
According to Tosafos it is easier to understand why the mishna only permitted this when the kohen was old or an istanis. If the kohein could bear the cold water it would be assur since it would not be necessary in the running of the beis hamikdash and would not be a need of the avoda. According to Rashi it should have even been permitted for a young kohein.

R. Akiva Eiger cites the pri chadash to support Tosafos. If it were permitted even outside of the mikdash, why is it only mentioned as being done by the mikva that was בבית הפרוה and build in kodesh, not in the first mikvah which was built בחול. According to Tosafos it is understandable that since we are relying on the concept of אין שבות במקדש, it can only apply within the area that was kodesh and could not be done by the first mikvah that was built b'chol. To answer for Rashi we need to say that one tevila he would be able to handle the cold, and this was only a need for the mikvah where he would have to immerse 4 times.

Tuesday, December 10, 2013

Yoma 33b - Ein Ma'avirin Al HaMitzvos

The Radvaz (Teshuva 522) writes that the concept of אין מעבירין על המצות  is only d'rabonon  and that the drasha of ושמרתם את המצות is only an אסמכת. According to this approach the requirement to do the דישון מזבח הפנימי prior to the הטבת הנרות is only m'drabonon, but m'doraysa there is no particular order. The Radvaz proves this from the approach of Rabbeinu Tam (cited in tosafos) that one must be careful to put their tefillin in the bag in a way where they will not be forced to pass by the tefillin shel rosh to get to the tefillin shel yad. The implication is that if their shel rosh was on top, they would indeed pass their shel rosh, violating אין מעבירין על המצות to put on their shel yad first (to maintain the order of the pasuk). The Radvaz explains that if אין מעבירין על המצות would be d'oraysa, why would we violated the issur of passing by the shel rosh, just to fulfill the mitzvah of putting on the shel yad first. Therefore, he concludes that the entire concept must only be d'rabonon, so the order of the pasuk which is d'oraysa trumps the issue of אין מעבירין על המצות. 
The Maharatz Chiyus challenges the Radvaz based on Rashi in Succah 25b who implies that the concept of אין מעבירין על המצות is indeed d'oraysa. It seems to me that Rashi here also implies that it is d'oraysa. When the gemara discusses how to use the extra terms בבקר written by the שני גזירי עצים, and rejects an alternate approach because we would have nothing left to use to divide the neiros which the pasuk seems to require. Rashi comments that we could use the דישון מזבח to divide the neiros, 5 before and 2 after. Rashi says this is not possible because that would demand passing the מזבח to get to he menorah and would violate אין מעבירין על המצות. In this context rashi is using אין מעבירין על המצות as a premise to explain the pesukim, clearly implying that it is a torah recognized concept, thereby rendering it d'oraysa.
However, it seems to me that the Tosafos Yeshanim understands that it is only d'rabonon. Tosafos Yeshanim ask why do we need to say that the wood on the ma'aracha of the outer mizbeiach (שני גזירי עצים) proceeds the דישון מזבח הפנימי because of the burning wood is hechsher mitzvah, it can simply be because of אין מעבירין על המצות and one reaches the outer mizbeiach first. Tosafos Yeshanim answers that there would be an alternate logic that things done inside the heichal are more important - מצות פנים עדיפא, which would have overridden אין מעבירין על המצות, so we need the sevara of מכשיר עדיף. If the logic of מצות פנים can override the issur of אין מעבירין על המצות, it must be that he is understanding that אין מעבירין על המצות is only d'rabonon because if it were d'oraysa, how can a sevara override it! This would support the Radvaz.

Thursday, November 28, 2013

Yoma 22b - Later Actions Indicating Earlier Intentions

The gemara says that when Hashem commanded Shaul to wipe out Amalek, he made a kal v'chomer that if an egla arufa is brought for one life, how can he take so many lives. Furthermore, even if the people deserve to be killed, what did the animals do! A bas kol went out and said אל תהי צדיק הרבה. The exact opposite happened when Shaul killed out the entire city of Kohanim, Nov. A bas kol went out and said אל תרשע הרבה. The gemara continues to explain that Shaul only did one aveira and that caused him to lose the throne, whereas Dovid did more aveiros and did not lose the throne. The gemara considers the aveira of Shaul to be the ma'aseh with Agag, not killing amalek. Even though he also sinned by killing out Nov, that didn't count in why he lost the malchus, because it was already lost from before.
The concept behind this gemara seems to be very similar to what we find by Yosef. In parshas vayigash, when Yosef finally reveals himself, he questions whether his father is still alive. The Beis Haleivi has a fascinating essay where he explains based on a Midrash - אוי לנו ליום הדין, that Yosef was giving them very sharp mussar. The claim that the brothers were making throughout all their discussions with Yosef is that they feared the health of their elderly father Yaakov and that was their primary concern. By Yosef revealing himself, he was essentially undermining all their arguments. Had they truly been concerned for Yaakov, they would never have sold him which caused Yaakov 22 years of extreme grief and suffering. The revelation of Yosef was done in the format of אני יוסף העוד אבי חי - "I am Yosef, Is my father still alive", meaning, could my father have tolerated the suffering that you caused him all these years. Yosef was able to show that all their arguments until now which seemed very legitimate, were all a smokescreen and not their true intent.
Shaul claimed to have spared the women and animals of amalek due to his compassionate nature. However, the ruthless murder of the kohanim in Nov indicated that he was not a man of compassion, thereby undermining any excuse he may have had for not killing amalek. That is the intent of the gemara, אל תהי צדיק הרבה and אל תרשע הרבה, because the latter event undermined his justification for the earlier one.
If Shaul was not truly motivated by compassion, why then did he kill out the city of Nov? The gemara says at the bottom of the daf  - מפני מה נענש שאול? מפני שמחל על כבודו, referring to the story of nachash ha'amoni, not willing to kill those who rebelled agains him. Rashi seems bothered by the question of the gemara, because the gemara already established that the reason Shaul lost his throne was because of the ma'aseh agag, not killing amalek. Therefore, Rashi explains what caused him to come to the action that was the reason for losing his throne. Meaning, what midah caused the problem? The midah of misplaced humility, being mochel on his kavod when as a king he must uphold his honor and instill אימה over the people. שום תשים עליך מלך - שתהא אימתו עליך, is the reason that a king can't be mochel. This was the midah that caused Shaul to lack the confidence and be scared to assert himself in killing out the entire nation of amalek. The midah of humility is generally good, but a king can't display himself as humble and unassertive. The Tosafos Yeshanim explains that this is what Rav Nachman meant when he said that Shaul was like a one day old child - שמלוכלך בטיט ובצואה, filthy in his excrement. He meant to say that Shaul was an extremely humble person. The Tosafos Yeshanims struggles with why he was punished (by being scared through mal'achim) for saying this, since it was a compliment. It seems that the answer is, that although it was a compliment in terms of Shaul's personality and character traits, it is an inappropriate midah for a king to display publicly.

Tuesday, November 19, 2013

Yoma 14a - Kohen Gadol as Onen Even If Divorced

The gemara cites a braisa that says a kohen gadol is makriv korbanos as an onen but doesn't eat from the korbanos. R. Yehuda argues and says that although min hatorah he can be makriv as an onen, m'drabonon we don't allow him to because we are afraid he is going to come to eat from the korbanos. Only at night where his status of aninus is only d'rabonon would we allow him to be makriv because we won't make a gezeira that he will come to eat since the issur of eating itself is only d'rabonon (Tosafos). The gemara then challenges R. Yehuda from the mishna where we see that even though the kohen gadol's wife died that day so he is an onen, he is still makriv. The gemara responds that Yom Kippur is different because no one is eating so we aren't concerned that he would eat. At the end of the sugya, the gemara challenges why we are assuming that the kohen gadol in our mishna is actually an onen since we have established that in the event of her death, he divorced her retroactively. The gemara answers that although he is not technically an onen, but אטרודי מי לא מיטריד - he is in a confused and distracted state.
The gemara is very difficult, why does the gemara assume that even though the kohen gadol isn't technically an onen, we would make a gezeira that he may come to eat from the korbanos. Since he is not an onen, who cares if he eat the korbanos? Rashi explains that for the eating of kodshim there is a requirement of simcha - כדרך שהמלכים אוכלים. Since there is a requirement to eat the kodshim with simcha, he would be violating this if he were to eat, therefore it would be appropriate to not allow him to do avoda since he may come to eat from the korbanos (if not for the fact that it was yom kippur and no one is eating).
The Cheshek Shlomo (Rav Shlomo Vilna) cites the Mishna L'melech (Avel 3:10) who is me'supak whether the eating of kodshim in the state of טרדא, but not actual אנינות, would be only an issur d'rabonon or even an issur d'oraysa. The Cheshek Shlomo says that he doesn't understand the question. If the concept of טרדא would only be d'rabonon, we shouldn't make a gezeira to prevent the kohen gadol from doing the avoda because he may come to eat, just like we don't make the gezeira at night since aninus at night is only d'rabonon. The fact that we are gozer that he can't do the avoda because he may come to eat proves that actualy eating in the state of being ta'rud of the wife that he was married to (and just divorced), would be the violation of a d'oraysa - למשחה, כדרך שהמלכים אוכלים.
Although according to Rashi's learning of the gemara the cheshek shlomo seems to be correct that the fact that we make a gezeira shows that actually eating in a state of tirda would be a violation of a d'oraysa. The Tosafos Yeshanim has an entirely different approach to explain the gemara's answer of אטרודי מי לא מיטריד. The gemara is not trying to create a new problem with eating, rather the gemara is trying to explain why we would be concerned that he would eat even if he is not an o'nen. The gemara is saying that since he is so ta'rud and distraught over the loss of his wife, there would be reason to make a gezeira that he may come to eat on yom kippur and violate the issur of eating on yom kippur if we allow him to be makriv korbanos. In other words, the sevara of ta'rud does not need to create a new issur of eating kodshim. It is clearly assur to eat because we are speaking about yom kippur. The sevara is just to explain why we thought to make a gezeira that he will come to eat on yom kippur if we allow him to be involved in korbanos, which is normally not a concern. Based on this approach there is no concept at all of ta'rud being a violation of למשחה - כדרך שהמלכים אוכלים.

Thursday, November 14, 2013

Yoma 8b - Function of Prisha for Yom Kippur

It is somewhat unclear from the sugyos what exactly the function of prisha is. At first glance it would seem to be for the purpose of tahara, but this cannot be. The gemara 6a asks, that although Rav Yochanan learns from miluim and Reish Lakish from Sinai that there needs to be prisha, why do we need to separate him from his wife. The gemara responds that there is an additional concern of tu'mah (which the gemara explains on 4a that Reish Lakish requires 7 days, as opposed to the 6 day prisha of Sinai). Clearly, the gemara holds that there is a purpose of prisha that is learned from miluim or sinai, even if we would not maintain chumros of tahara. Another option of what prisha accomplishes is to keep people away from him to avoid tu'mas meis. However, the gemara 6b debunks this possibility as well because the gemara (as explained by rashi) takes for granted that he is allowed to have visitors and we are not concerned that they will drop dead while visiting him. The braisa 4a also describes that there are kohanim working with him all 7 days to teach him how to do the avoda. We are still left with the question, what is the definition of prisha?
The gemara cites a braisa contrasting the prisha of the kohein on Y.K. and the prisha for the parah aduma. The braisa says - שזה פרישתו לקדושה ואחיו הכהנים נוגעין בו, וזה פרישתו לטהרה ואין אחיו הכהנים נוגעין בו. The braisa holds that the function of prisha for parah aduma was clearly a tahara issue, but for Y.K. was not primarily a tahara issue, it was for the purpose of "kedusah". What does this mean? Rashi writes that it is a preparation for entry to the machaneh shechina by separating him to not be arrogant and not be frivolous, in other words, putting him in a serious state of mind. It seems that according to Rashi the function of the prisha is a mental preparation for the avodas hayom.
Tosafos on 2a (d.h. mai shena) writes explicitly that the definition of פרישתו לקדושה means that since he was going to be doing avoda in the kodesh hakadashim, they would separate him into a chamber that was built b'kodesh. Although Tosafos 6a (d.h. m'beiso) writes that the lishkas parhedrin was built b'kodesh (machaneh shechina - azara) but open into the chol (machaneh leviya - ezras nashim), so that it would not have kedusah of azara (to enable him to sit and sleep there). Why is this considered פרישתו לקדושה since the place didn't actually have kedusha status? Tosafos 8b offers two approaches. The first approach is that since it was built in the azara which had kedusha of machaneh shechina, it was considered פרישתו לקדושה even though the actual chamber didn't have kedusha. A second approach is the opposite, it was built in chol and open to kodesh so the inside had kedusha for the purpose of eating kodshei kodshim. Nevertheless, since it was built b'chol not b'kodesh, it didn't have full kedusha of the azara so he was able to sit and sleep there. Tosafos at the end rejects the second approach and holds that if it is open to kodesh, sitting would not be allowed.
Tosafos clearly holds that the function of prisha for the kohen gadol before Y.K. is to place him in a kadosh place as preparation for avoda לפני ולפנים. The difficulty with this approach is that Tosafos explains the question of the gemara on 6a - מביתו למה פירש to mean that although we need to separate him, why should we put him in the lishkas parhedrin where he can't be with his wife, we should put him in one of the mechilos that didn't have kedusha where he can be with his wife? The gemara answers that there is an additional concern of tu'mah. The question of the gemara implies that the function of prisha cannot be to put him in a place of kedusha, because if that were the case, it wouldn't makes sense for the gemara to suggest that instead we should put him in one of the mechilos that didn't have kedusha?

Yoma 8a - Broken Tzitz

The gemara says that if the tzitz is broken, all agree that it doesn't offer kappara. The machlokes is only when the tzitz is in tact, but not being worn. Rav Yehuda holds that it is only מרצה while it is worn, and Rav Shimon holds that it is מרצה even when hanging in the closet. Why does the gemara speak about a "broken" tzitz, it could have said a simpler nafka mina such as when there is no tzitz at all?
Furthermore, the gemara says that according to Rav Shimon the reason that the tzitz is not mechaper when it is broken is because we darshen the pasuk - על מצחו ונשא, only when it is fit to be worn would it offer kappara. Why does the gemara need a pasuk to say that a broken tzitz is ineffective, it is obviously ineffective since it is broken?
It seems clear that the gemara specifically speaks about a broken tzitz, rather than there being no tzitz at all. The case of the broken tztiz is where the tzitz is still in tact, but it is broken in a way that it is unable to be worn without repair. Therefore, it still retains the status of a tzitz, so it would be possible that it is מרצה even in its present state, but Rav Shimon darshens from the pasuk that although the tzitz doesn't actually need to be worn, it only works to be me'chaper when it CAN be worn. The Maharatz Chiyus points out that the gemara is darshening the pasuk to require ראוי לבילה, meaning  כל הראוי לבילה אין בילה מעכבת בו וכל שאינו ראוי לבילה בילה מעכבת בו. If it is fit to be worn, it works without being worn, but if it is unfit to be worn, it doesn't offer kapparah. Being that the tzitz is actually in tact, just "broken" from being able to be worn, Rav Shimon requires a pasuk to teach that it isn't מרצה.

Tuesday, November 12, 2013

Yoma 6b - Hutrah and Dechuya

There is a machlokes in the gemara whether tu'mah is hutrah or dechuya b'tzibbur. The gemara has two versions of the machlokes. According to the first version, if there are tahor kohanim in the beis av that is serving on that day, you must use the tahor kohanim. The entire machlokes would be whether you bring kohanim from a different beis av. According to the second version, even if there are tahor kohanim within that beis av, the opinion who holds טומאה הותרה בצבור, it is completely mutar and therefore one can even lichatchila have the tamei kohanim do the avodah. The Gevuras Ari points out that on a d'oraysa level there doesn't seem to be any grounds for a distinction between having tahor kohanim within that beis av or in a different beis av. Therefore he assumes that according to Rav Nachman that טומאה הותרה בצבור, on a d'oraysa level both version would allow kohanim te'meim to do the avodah, the first version which demands that tehorim do the avoda when they are in that same beis av, is only d'rabonon.
The Gevuras Ari also points out that regarding the korban pesach which has active involvement from the tzibbur, it make sense that we look at the entire tzibbur when determining רוב טמאים or רוב טהורים regarding pushing off tu'mah or doing pesach sheini. But, for other korbanos tzibbur which has not communal involvement, it should be completely dependent on the kohanim. Since we pasken like Rav Sheishes טומאה דחויה בצבור, so long as there are any kohanim that are tahor we should need to do it b'tahara, not b'tumah. We should completely disregard the numbers of kohanim that are tamei and the numbers of the tzibbur that are tamei, since there is a possibility of doing it b'tahara. The difficulty with this is the Rambam (Bias Mikdash perek 4) writes that if either rov tzibbur are tamei or rov kohanim are tamei, it pushes off tu'mah. Furthermore, the Rambam seems to even allow people who are tamei meis to enter the azarah. This should be forbidden even according to those who hold טומאה הותרה בצבור, because the heter is only for the kohanim, not for yisraeilim to enter the azarah with tu'mas meis (except for korban pesach). It seems that the Rambam understands that טומאה דחויה בצבור doesn't require one to take every measure to preserve tahara, rather it is preferable to use tahor people but tamei people are also acceptable. Many achronim (sefas emes, gevuras ari, radvaz) question the Rambam (4:14) who says that if MOST kohanim of Yerushalayim were tamei, it can be done b'tumah, which implies that even though there are tahor kohanim, it can be done by the tamei kohanim. The Radvaz explains that the Rambam holds we follow Rov, so we view it as if all kohanim were tamei and allow the tamei and tahor kohanim to do it together. We learn from this Rambam that טומאה דחויה בצבור doesn't demand that we take every measure possible to avoid tu'mah.
There is a big discussion in achronim when one can fulfill a mitzvah with a nicer esrog later, or not with a less mehudar esrog, which one to use. The Shevus Yaakov (quoted in my sefer nasiach b'chukecha page 22) proves from the gemara that we would delay a mitzvah to do it in a more mehudar way later. The fact that we push off the korban to get kohanim from a different beis av, clearly shows that although we can do the mtizvah now, we would push it off to do it מן המובחר later on. The language of the Shevus Yaakov (1:34) is - הרי להדיא היכא דדחויה היא בצבור מהדרינן אחר כהן אחר אף דאיכא שהוי מצוה בזה קודם שימצא להדר אחר כהן אחר, אפ"ה לעשות מצוה מן המובחר עדיף
The proof of the Shevus Yaakov is very problematic. The concept of טומאה דחויה בצבור means that one is only allowed to bring a korban b'tumah once all other options have been exhausted, but if there is even one kohein who can do it b'tahara, it cannot be done b'tumah. Therefore, we would bring kohanim that are tahor from a different beis av, rather than doing it now b'tumah, is not merely a מצוה מן המובחר. Rather it is because the din of טומאה דחויה בצבור only permits it to be done b'tumah when no other option is possible. Since there is a possibility of doing it b'tahara by bringing kohanim from elsewhere, the tu'mah is not pushed off. It isn't an issue of hiddur to get kohanim from a different beis av, rather the entire din of דחויה בצבור doesn't apply when there is an option of bringing a tahor kohein from a different beis av, or even a different mishmar. This doesn't prove anything about a mitzvah which can be performed now just that it can be more mehudar if done later. Perhaps in a situation where the mitzvah can be done now we would not push it off to do it in a more mehudar way later on.
However, if we understand that the concept of טומאה דחויה בצבור just means that it is more advantageous to do it b'tahara, but not essential that it be done b'tahara even where possible, then the proof of the Shevus Yaakov makes sense. It would seem that the Rambam understands exactly that, טומאה דחויה בצבור means that we prefer tahara, but it is not an absolute requirement to do it b'tahara. That is why the Rambam holds that when the majority of kohanim are tamei, even though there are tahor kohanim, we can still have it done b'tumah.

Thursday, November 07, 2013

Yoma 2a - Parah Aduma being a Kapara

The gemara says that we learn out from the pasuk that prisha is necessary for both para aduma and yom kippur. The gemara explains that since the Torah uses both the term לעשות and לכפר, it can't just be referring to the para aduma because - פרה לאו בת כפרה היא, parah aduma isn't for a kapara, it is for tahara.
The Sha'agas Aryeh (in his sefer Gevuros Ari) asks based on the Midrash quoted by Rashi in Parshas Chukas, the Parah Aduma offers a kapara for the sin of the golden calf. Rashi cites the famous mashal of the בן שפחה who dirties the king's palace and the mother (parah aduma) needs to come to clean it up. Also, the gemara says in Moed Kattan - למה נסמכה פרשת מרים לפרשת פרה אדומה, לומר לך מה פרה אדומה מכפרת, אף מיתת צדיקים מכפרת. We see clearly that the parah aduma is coming for kapara, why does the gemara say that it isn't for kapara?
The Gevuros Ari answers that it was only the Parah Aduma done by Elazar in the time of Moshe that was serving as a kapara for the golden calf, but the parah aduma that was done in the future was not for kapara. Although the Gevuros Ari maintains this position, he points out that it still doesn't answer the question because maybe the pasuk of לכפר demanding prisha for the kohen gadol is specifically for parah aduma in the time of Moshe. Therefore, the Gevuros Ari concludes that although there is kapara offered through the parah aduma, the main function of the para aduma is for tahara and not to serve as a kapara, unlike Yom Kippur that the very essence of the day is for kapara. It was only אגב גררא מקופיא, that it also came to serve as a kapara for the eigel.
Regarding the first point of the Gevuros Ari that only the Parah Aduma of Moshe served as a kapara for the eigel, not the future parah adumos, it seems to be against Rashi in Chumash. After Rashi explains all the acts of the parah aduma and how they relate back to the eigel, he explains the pasuk (9) - והיתה לעדת בני ישראל למשמרת, that the concept of a mishmeres is that just as the sin of the eigel lingers throughout the generations, so too the parah aduma is למשמרת to linger for future generations. Simply this means that the parah aduma was not a one time thing, rather it was repeated a few time throughout the generations serving each time as a mishmeres for the חטא העגל. Perhaps the Gevuros Ari would interpret that only the ashes of Moshe's parah aduma lingered for many generations and was used for tahara for a very long time.
Regarding the conclusion of the Gevuros Ari that the parah aduma was not primarily for a kapara, rather it was done for tahara. It seems that the idea of it being a kapara is by virtue of the fact that it is being used for tahara. Meaning, the eigel brought tu'mah into the Jewish people, and the function of the parah aduma is to bring about tahara, the opposite of tu'mah. By bringing tahara it is indirectly serving as a kapara to fix the problem caused by the eigel.
The Shulchan Aruch (685) holds that reading the parsha of para aduma is d'oraysa, to which the Magen Avrohom says that he doesn't know what the source in the Torah would be. The Malbim in his sefer Artzos HaChaim says that since we have a mitzvah of zachor to remember how we angered Hashem in the midbar, and the main angering was the חטא העגל, we have an obligation to read the parsha of the eigel. However, since it is degrading to publicly read about the sin of the eigel, we achieve this by covering it up a little and read the parsha of para aduma which is a kapara for the eigel. The Meshech Chochma (Chukas) writes that since within the context of the miluim there is a reference to parah aduma, לעשות אלו מעשה פרה, and there is an opinion that by the miluim the reading of the parsha was me'akeiv (5b), so too by parah aduma the reading of the parsha is essential. According to this it would come out that the Torah reading of Achrei Mos which is the seder of Yom Kippur would also be d'oraysa.

Tuesday, October 15, 2013

Pesachim 120 - Bracha on Ma'aseh Mitzvah before Kiyum HaMitzvah

In the sugya of mitzvos tzrichos kavana 115a, which speaks about a case where one is using marror for both karpas and marror, there is a machlokes Rav Huna and Rav Chisda whether you make the bracha of על אכילת מרור by the eating of marror, or earlier by the eating of karpas. Tosafos explains that both Rav Huna and Rav Chisda agree to Reish Lakish 114b that mitzvos require kavana and he will not be yotzei the mitzvah of marror with the eating of marror by karpas. Yet, Rav Chisda holds לאחר שמילא כריסו הימנו חוזר ומברך עליה!, it doesn't make sense to eat marror without a bracha of על אכילת מרור and only make the bracha later. Therefore, he should make the bracha earlier by the eating of karpas. Tosafos questions how one is able to make a birchas hamitzvah on the eating of karpas if he isn't going to be yotzei the mitzvah of marror until later. Tosafos writes that the bracha made earlier works since he is going to be eating a little marror at the time of the bracha, even though he isn't going to be yotzei until later. Tosafos even implies that he doesn't need to eat a kezayis at the time of the bracha, so long as he eats a kezayis later on. It seems from Tosafos that one can make a bracha on a ma'aseh mitzvah, even though the kiyum hamitzvah will not be until later.
Perhaps this approach can be supported from the mitzvah of sefiras ha'omer, according to those who hold that there are 49 components to be yotzei the one big mitzvah of sefira. We make a bracha each night on the ma'aseh hamitzvah even though the kiyum is pending until the last night. However, by sefiras ha'omer each night one is at least doing a component of the mitzvah that will ultimately make up the greater mitzvah of sefira. But in the case of Tosafos, the marror that is being eaten as karpas on which he is making the bracha ultimately contributes nothing to the fulfillment of the mitzvah.
Tosafos draws a parallel from shofar where we make a bracha on the tekios d'meyushav, even though the mitzvah d'oraysa is only fulfilled by the teki'os d'me'umad. The Chazon Ish (O.C. 124) points out that this is also a difficult comparison because by shofar there is at least  a mitzvah d'rabonon being done with the teki'os d'me'yushav so that it is not a bracha l'vatala, but by marror there is no mitzvah at all being done with the marror of karpas. What is the comparison? It seems that Tosafos is not focused on the bracha being l'vatala. They take for granted (even though it seems difficult) that since he is doing the ma'aseh mitzvah it wouldn't constitute a bracha l'vatala. The concern of Tosafos is how does the bracha done earlier work for the mitzvah performed later, which they prove from shofar that just like the brachos on tekios d'me'yushav works for the later te'kios d'meumad, so too the bracha on karpas works for the eating of marror later.
There is a machlokes Rashbam 119b and Tosafos 120a whether the primary mitzvah of matzah is fulfilled with the first eating of matzah on which we make a bracha or on the matzah of afikomen. Rashbam understands that it is the matzah of afikomen and therefore draws a parallel from Rav Chisda that a bracha could be made on the ma'aseh mitzvah that is done earlier, and work for the kiyum hamitzvah that will only be later. Tosafos agrees that according to the Rashbam it would be a good comparison, but holds that the primary mitzvah of matzah is fulfilled with the matzah eating l'tei'avon at the beginning of the meal.

Wednesday, October 09, 2013

Pesachim 113b - Defining the violation to hate "in your heart"

The gemara says that when someone sees another do an aveira, even if there aren't two witnesses so you can't testify on him in a court, you are allowed to hate him. The gemara proves this point from the pasuk that describes חמור שונאך רובץ תחת משאו - the donkey of your enemy crouched under its load. What type of enemy is the Torah speaking about? The gemara says that it can't be someon that you hate for no good reason because that would be a violation of לא תשנא את אחיך בלבבך, therefore it must be speaking about an enemy that you hate because you saw him doing an aveira.
The gemara implies that the ONLY way that one can have a Jewish enemy, yet not be in violation of לא תשנא את אחיך בלבבך would be when you see him do an aveira and are therefore allowed to hate him. There is a big machlokes in the Rishonim regarding the parameters of לא תשנא and why the Torah specifies בלבבך - in your heart. Rabbeinu Yona (sha'arei teshuva 3:39) and the Ramban both say that all hatred is included. The only reason that the Torah writes בלבבך is because that is more common, but the issur would be violated even if he expressed his hatred. However, the Rambam (Hil. Deios 6:10) writes that the only violation is when one hides the hatred in his heart, but when one expresses the hatred they would not be in violation. The Rambam seems to be contradicted by the gemara because the gemara indicates that all hatred would be included. According to the Rambam the gemara should have said that there can be an enemy who you hate for no good reason, but as long as you tell him that you hate him you would avoid the violation of לא תשנא. How will the Rambam learn this gemara?
I think that the Rambam would say that the context of the gemara is defining the term שונאך of the Torah. The Torah is speaking in a context where you would be going to help him unload his donkey. This would be a clear display of love. The very act of helping him would hide the animosity and hatred that you feel for him. Therefore, it could not be speaking about someone you hate for no reason because that would violate לא תשנא את אחיך בלבבך, since the actions of helping him give him the impression that you don't hate him.

Wednesday, October 02, 2013

Pesachim 105b - Drinking from Kos Shel Bracha

One of the eight points that the gemara draws from the braisa is that המברך צריך שיטעום, when one uses a kos shel bracha, they need to actually drink from the kos shel bracha. I gave a shiur recently on the minhag in many shuls to say birchas hamazon on a kos after shalosh seudos, daven ma'ariv and then return to use the same cup for birchas hamazon. According to the simple reading of the gemara 102b and the Shulchan Aruch 299:4, this should be a violation of אין עושין מצות חבילות חבילות. See HERE for a halachic justification regarding that issue.
Another issue with the predominant custom is how one fulfills the requirement of המברך צריך שיטעום on the kos of birchas hamazon. This would be an issue even if one were to use separate cups for Birchas Hamazon and Havdala, since the drinking is typically not done until after ma'ariv. The Biur Halacha (299:4 d.h. mevareich) explains that as long as one generally makes birchas hamazon on a kos, they are able to drink from the kos of birchas hamazon even before havdala. The M.B. cites the Chayei Adam who holds that even if one typically doesn't use a kos for birchas hamazon, they can still drink immediately following bentching, before making havdala, so long as it isn't definitely night - ספק חשכה. However, in most situations people are not makpid to use a kos for birchas hamazon, and shalosh seudos ends at צאת הכוכבים, so drinking from the kos of birchas hamazon at that point would be a problem. The Biur Halacha writes that in a case where one cannot drink (either because he only has one kos, or because he can't drink before havdala), the Bach holds that one should make havdala on a kos of wine immediately, prior to davening ma'ariv, then drink from both the cup of havdala and the cup of birchas hamazon. Pausing to daven ma'ariv would be too long of a break between the birchas hamazon and the drinking from the cup. This is also clearly the opinion of the shulchan aruch ha'rav. But, the Biur Halacha quotes the Derech HaChayim who says that it is fine to daven ma'ariv in between, which is the minhag ha'olam.
It seems to me that the reservation of the Biur Halacha is correct, and davening ma'ariv between the birchas hamazon and havdala is a problem because the drinking after havdala would not be effective for the kos of birchas hamazon, and would undermine the entire advantage of being bentching on a kos. The Rashbam explains that from the fact that we don't tell the person who needs to eat on Motzei Shabbos and make Havdala, to first make havdala, then eat, then bentch and drink the kos, implies המברך צריך שיטעום. But why is this a violation of המברך צריך שיטעום, he will drink from this very kos after bentching and that would qualify as the the drinking for both the havdala and the birchas hamazon? Clearly, the Rashbam holds that eating a meal between havdala and birchas hamazon would be too much of a hefsek and not allow the drinking to go back on the havdala. Just as the meal would constitute a hefsek, and therefore not allow the drinking afterward to qualify as המברך צריך שיטעום, so too the davening would constitute a hefsek as the shulchan aruch ha'graz holds, not like the minhag ha'olam and not like the derech hachaim.

Thursday, September 12, 2013

Pesachim 85a - Breaking Bones of Korban Pesach to Eat Marrow

The gemara cites a machlokes between R. Yochanan and Reish Lakish whether the prohibition to break the bones of the korban pesach only apply to an area of the bone which has a kezayis of eatable meat, or so long as the bone has on it a kezayis of meat there is an issur to break the bone at any point. The gemara says that even according to Reish Lakish who holds that the issur only applies to a spot of the bone that has a kezayis of meat, it doesn't matter whether the eatable part is on the outside of the bone in the form of meat, or on the inside in the form of marrow. Either way, there is a prohibition to break the bones. The gemara clearly maintains that there is an issur to break the bones when there is marrow inside (even if there is no meat on the outside).
The gemara cites a braisa to support this point. The Braisa points out that there is a contradiction between two pesukim that must be reconciled. On one hand the Torah says ואכלו את הבשר בלילה הזה implying that all the eatable parts of the korban pesach must be eaten, including the marrow. On the other hand the pasuk says ועצם לא תשברו בו implying that one may not break the bones, even to get to the marrow. We are forced to limit one of these two pesukim. Either we must limit the mitzvah of eating the korban pesach to the meat on the outside and not the marrow within, in order to uphold the blanket prohibition to break the bones. Or we must limit the issur to break the bones to include only marrow-less bones, but bones in which there is marrow one would be entitled to break so that they can get to the marrow. The braisa continues that the latter approach is plausible since we find that there is a concept of עשה דוחה לא תעשה, as if the mitzvah of eating korban pesach would push off the prohibition to break the bones. However, the braisa concludes that since we have an extra pasuk by pesach sheini warning against the breaking of the bones, the Torah is indicating that the bones cannot be broken under any circumstances, even to get to the marrow inside.
Tosafos asks, why would we need a special pasuk to teach not to break the bones. The concept of עשה דוחה לא תעשה shouldn't really work here since it is not בעידנא, meaning that the לא תעשה of breaking the bones is violated prior to the performance of the aseh. In such a situation we do not allow the aseh to push off the lo ta'aseh. Why would we need an extra pasuk by pesach sheini? Furthermore, the paradox is not absolute. One can fulfill the mitzvah of eating the marrow without breaking the bones. Since the paradox can be reconciled by using a coal to burn through the bone rather than breaking it, it is considered אפשר לקיים שניהם so we don't allow the aseh to push off the lo ta'aseh. In short, why does the braisa claim to warrant an extra pasuk based on the rule of עשה דוחה ל"ת. Since it is not בעידנא and it is אפשר לקיים שניהם, there are two reasons for us not to apply the concept of עשה דוחה לא תעשה to this case? Tosafos only answers the second question by saying that if the problem of the coal is because it will burn through some of the marrow and be a violation of הפסד קדשים, it is not a possibility and therefore is considered אי אפשר לקיים שניהם. However, the first question of Tosafos still remains?
I would suggest that the braisa never meant to apply the technical concept of עשה דוחה לא תעשה. The braisa is actually suggesting that due to the inherent contradiction between the mitzvah of eating the meat and marrow, and the issur of breaking the bones, we should limit the issur to only apply to bones that have no marrow. This is not applying the concept of עשה דוחה לא תעשה because that concept does not limit the lo ta'seh, rather it overrides it. The braisa is only saying that conceptually one should not find it strange that the mitzvah of eating the korban pesach would prevail over the issur to break the bones, forcing us to limit the issur, because we always find that an aseh pushes off a lo ta'aseh. The braisa doesn't met to apply the technical concept, just draw a conceptual parallel to justify limiting the issur to bones with no marrow.
Rashi also asks the second question of Tosafos. Why does the gemara consider there to be an absolute contradiction between the mitzvah to eat the korban pesach and the issur to break the bones, they can both be fulfilled by using a coal to burn through the bone? Rashi answers - דלא מצריך ליה קרא מילתא דאתי בה לידי תקלה דלמא פקע, the torah wouldn't require doing something that can cause the breaking of the bone. At first glance, Rashi is very difficult to understand. The gemara on 84b was very clear that this concern of דלמא פקע is only Rabbinic in nature, but on a Torah level using a coal is a good option to access the marrow without violation. How can Rashi say that the Torah itself rejects this option, since the entire concern is only Rabbinic? I would suggest that Rashi is not referring to the Rabbinic prohibition of using a coal to burn through out of concern that it will cause a crack. Even if the Rabbonon never created such a prohibition, Rashi would make sense. Rashi is saying that the Torah would not include the marrow in the mitzvah and obligation to eat korban pesach if there were a significant chance that by doing the mitzvah one would be in violation of an issur. Even if it were permissible m'dorayas and even m'drabonon to use a coal to burn through the bone, since there is a concern that it will break the bone, albeit a small concern, the Torah would not require it to be done to fulfill the mitzvah. In other words, Rashi is saying that we never find that the Torah would obligate a mitzvah at the risk of the violation of an issur. This is a fascinating yesod!

Monday, August 26, 2013

Pesachim 70a - Eating the Korban Pesach While Full

The Mishna 69b explains that a korban chagiga would accompany the korban pesach when there were too many people counted on the the korban pesach. The gemara explains that the korban chagiga was not an obligation and the function of it was only to make sure that the korban pesach was eaten על השובע. Why is it necessary to eat the korban pesach על השובע? Tosafos cites from the Yerushalmi that it is a din D'rabonon because when one is too hungry they would come to break the bones. If people are too hungry, then when they are hastily eating the meat around the bones they will be too rough and break the bones. By implementing a korban chagiga to ensure that everyone would not be so hungry when they came to eat the korban pesach, there would not be a concern that they will accidentally break the bones. Tosafos later on 120a adds an additional peshat - שלא יצא משולחן רבו רעב. It is degrading to walk away from eating a korban and still be hungry. Therefore, we want to make sure that he eats enough before the korban pesach so that he can walk away from the korban pesach satiated. The difference between these two approaches is that according to the first approach we want to make sure that he begins eating the korban pesach על השובע so he won't break the bones, whereas according to the second approach we want him to be full when he finishes the korban pesach. According to the first approach it is difficult to understand why we would only bring a korban chagiga when there are many people counted on the korban pesach, but if there would be only a few, one would not need a korban chagiga. Shouldn't we always encourage one to have many people on the korban pesach so that we can force bringing a korban chagiga to ensure that when they begin eating the korban pesach they won't be hungry? It seems that ideally one should have a large number on the korban pesach so that they are forced to bring a korban chagiga, so that when they begin the korban pesach they are already somewhat satiated and won't come to break the bones.
Rashi seems to have a third approach in understanding על השובע. When one eats something when they are starving, they don't enjoy the taste of it. Only after the severe hunger subsides does one begin to enjoy what he is eating. We insist on a korban chagiga so that one will not be so hungry when they begin eating the korban pesach. By doing this they will enjoy the korban pesach more which is a kavod and chashivus for the korban pesach. According to this approach also it would seem that it is ideal to have more people counted on the korban pesach and force the bringing of a korban chagiga so that when they begin the korban pesach they are already full.

Wednesday, August 21, 2013

Pesachim 64a - Reading Hallel

The mishna says that they would read Hallel by each of the three groups as they brought their korban pesach. Tosafos cites the Tosefta that it was the Levi'im who would read the Hallel, not everyone. Tosafos asks that if it was the Levi'im who would be reading the Hallel, it should have a status of שירה and would be a violation of the rule אין אומרים שירה אלא על היין. Tosafos answers that the halacha of אין אומרים שירה אלא על היין is a halacha in being "makriv" the korban. The shira which complimented the burning of the korban on the mizbeiach was done specifically at the time of the nisuch ha'yayin. Here the Hallel is not being said at the time of the hakrava, rather we are talking about Hallel at the time of shechita. On this type of shira there is no requirement of אין אומרים שירה אלא על היין.
The Brisker Rav (Hil. Chanuka) cites the Rambam who says that Hallel is a תקנה מדברי סופרים, whereas the Magid Mishna writes that it was a תקנת נביאים which is the language of the gemara as well. The Brisker Rav explains that there are 2 dinim in Hallel. There is a Hallel of שירה such as the Hallel said at the time of the eating of the korban pesach - כליל התקדש חג, as we see in the gemara 95b. There is also the Hallel which is a קריאה such as the Hallel done on every Yom Tov in shul. Hallel as a שירה is a  תקנת נביאים but Hallel as a קריאה is מדברי סופרים. Regarding the Bracha on Hallel, we only make a bracha (מעיקר הדין) on the "full" Hallel because only the full Hallel has status of Hallel. But when Hallel is being said as a shira, there is no specific amount that must be said, therefore they could make a bracha on it even if it wasn't completed. The Brisker Rav explains that the Hallel at the time of shechting the korban pesach is a din in shira, therefore it wasn't necessary for the 3rd group to complete it as the Mishna explains. The Brisker Rav concludes by citing a Tosafos HaRosh that there are 3 times where we say Hallel without wine, which are exceptions to the rule of אין אומרים שירה אלא על היין. The 3 times are: 1. Hallel of shechitas HaPesach. 2. Hallel by eating the Pesach. 3. Hallel by war. Why don't they also count every Hallel of Yom Tov which are also exceptions? The Brisker Rav explains that only when the Hallel is being said as a shira do we regard it as an exception when it is done without wine. When the Hallel is being said as a קריאה, of course it is said without wine.
Based on this, Tosafos would also categorize Hallel of shechitas HaPesach as a שירה not a קריאה, yet since it is not done at the time of hakrava, we don't require it to be done on wine.

Tuesday, August 20, 2013

Pesachim 63a - Shechting Korban Pesach With Chometz

The Rambam (Hil. Korban Pesach 1:5) writes that if one shechts, sprinkles the blood or burns the eimurin of a korban pesach while one of them has chometz or one of the chabura has chometz, all those playing an active role in the korban (שוחט, זורק ומקטיר) are in violation. The implication of the Rambam is that the members of the chabura, even the one who has chometz is not in violation since they are not doing any active part of being מקריב the korban. Tosafos writes that the one who has chometz is not in violation. However, Tosafos gives two explanations why the member of the chabura that has the chometz is not in violation: 1. The Torah says לא תשחט implying one who does an avodah. 2. It is a לאו שאין בו מעשה so there can't be malkus. The Minchas Chinuch (Mitzvah 89) points out that according to the first answer of Tosafos it seems that the בעל החמץ is not in violation of anything, whereas the second answer of Tosafos implies that he is in violation, just that he doesn't receive malkus for a la'av sh'ein bo ma'aseh. Rashi seems to disagree with both the Rambam and Tosafos. Rashi on the mishna writes that if one of them has chometz, they are ALL in violation, implying that not only is the בעל החמץ in violation, but all the passive members of the chabura are also in violation.
Another issue is whether the violation of this לאו invalidates the Korban Pesach. Tosafos writes that the Pesach is kasher since there is no repetition to indicate that the violation of this would cause passul the korban. The Rambam also writes that the korban is kasher [In the pirush hamishna he also writes - ולא יפסיד הזבח]. The kesef mishna points out that this is the implication of the mishna since it only says that you would violate a לא תעשה and doesn't mention the korban.
There is a Mishna L'melech that discusses whether the זורק or מקטיר would be in violation of a korban pesach that has already become passul. Is the violation of לא תשחט על חמץ only on a kasher korban pesach, or even on a passul one? The Mishna L'melech proves from a Yerushalmi that it would not apply to a passul korban pesach. In the Yerushalmi, R. Shmuel says that from the fact that the issur even applies to the zoreik, it must be that the pesach is kasher. Meaning, if the korban pesach that is shechted while one has chometz is passul, the korban would have already become passul by the shechita so that the zoreik would not be in violation. The fact that the zoreik can also be in violation implies that the korban is not invalidated by being shechted with someone having chometz. The entire approach of R. Shmuel in the Yerushalmi assumes that on a passul korban pesach one cannot be in violation of this prohibition.
The Tzlach suggests a similar lomdus to the mishna l'melech in his understanding of Rashi, from which he tries to prove that the korban would be invalidated by being shechted while someone has chometz. Rav Papa says that the מקטיר will also be in violation of this issur. Rashi explains that we are speaking about a circumstance where none of the בני חבורה had chometz so that there was no violation until now, the one who burns the korban on the mizbeiach will be in violation if he has chometz. Why does Rashi need to say that we are speaking where the בני חבורה don't have chometz? It must be that Rashi assumes that if the בני חבורה had chometz so that the issur was already violated by the shechita, the korban would be פסול, therefore the מקטיר would not be in violation. Rashi assumes like the conclusion of the mishna l'melech that on a passul korban, one cannot be in violation and therefore needs to make the case where the korban was not invalidated. The Tzlach later rejects this diyuk, but according to this diyuk, Rashi would hold that the korban becomes invalidate if any of the avoda is done while someone in the chabura or one of the makrivim have chometz.

Thursday, August 15, 2013

Pesachim 58b - Korbanos In Between Morning and Afternoon Tamid

The gemara cites Rava who learns from the pasuk of העולה that the korban Tamid has to be the first one brought in the day, and learns from והקטיר עליה חלבי השלמים that nothing can come after the evening korban Tamid, rather עליה השלם כל הקרבנות כולן. Tosafos asks that there is another source in perek ha'tadir that the gemara learns from מלבד עולת הבוקר אשר לעולת התמיד, implying that the Tamid is first. Why do we need both pesukim? Tosafos rejects the possibility that repeating it is to tell you it is me'akeiv, meaning that a korban would be invalid if brought afterward, because the gemara says explicitly that it is not l'ikuva. In Tosafos second answer they say that the pasuk in our gemara focuses on the burning of אימורין on the mizbeiach prior to the Tamid, whereas the pasuk in hatadir is to tell you that the shechita of the Tamid is first. Tosafos also points out that the gemara in Eiruvin says that a korban shelamim brought prior to the opening of the doors of the heichal is invalid, proves that shechting before the tamid won't invalidate, because if it were then we wouldn't need a pasuk to invalidate prior to the opening of the doors.
Tosafos cites the gemara that says that a korban brought prior to the morning tamid wouldn't become passul, but isn't clear about whether a korban that is brought after the korban tamid would become passul. Tosafos in menachos writes that it wouldn't become passul if brought after the evening tamid. Tosafos on thid daf implies that as well because the Tosefta says that a korban brought prior to the morning tamid or after the evening one would become passul, to which Tosafos writes that it is only m'drabonon, implying that they are the same and that m'doraysa neither would be passul. Rashi d.h. kach, writes that nedarim and nedavos brought after the evening Tamid would become passul. See Mishneh L'melech (1:3 of Hil. Temidin U'musafin who is ma'arich very much on these issues).
The Mishna L'melech points out that the Rambam seems to hold like Tosafos because the Rambam (1:3) writes it in the form of an issur, but makes not mention of korbanos being invalid if brought before the morning tamid or after the evening one.
The Rambam writes - לפי שאסור להקריב קרבן כלל קודם תמיד של שחר, ולא שוחטין קרבן אחר תמיד של בין הערבים חוץ מקרבן פסח לבדו שאי אפשר שיקריבו כל ישראל פסחיהן בשתי שעות
The Rambam writes that the only korban brought after the evening Tamid was the korban pesach and the rationale he offers is that if you were to bring the korban pesach prior to the tamid, it would need to be brought between 12:30pm and 2:30pm and two hours isn't sufficient time for the korban pesach. Therefore, it is brought after the Tamid. The Lechem Mishna points out that this rationale is difficult because if the problem were merely the limitation of 2 hours they should have allowed it to be brought either before or after the Tamid. Furthermore, the gemara gives another rationale, since it says by Pesach both בערב and בין הערבים, it implies that it is pushed to later.
Another difficulty with the Rambam is pointed out by the Mishna l'melech at the end of his esssay. Why does the Rambam say that no korban is "brought" prior to the morning Tamid and no korban is "shechted" after the evening one. Tosafos holds that by the morning Tamid where there are two pesukim, one indicates the issur to be makriv (הקטרת אימורין) and the other indicates the issur to shecht, implying that the pasuk cited in our gemara for not sacrificing after the Tamid would be consistent with the context and forbid הקטרה after the evening Tamid. This seems to be the opposite of the Rambam! The Mishna L'melech explains that technically there is no issur to shecht before or after the Tamid, the entire issur is only on being makriv. The reason is that shechita is not regarded as an Avoda and therefore there are no rules limiting it. In the morning one could shecht prior to the morning korban tamid. But, in the evening since if one were to schecht they would be unable to be burn the korban properly or sprinkle the blood, it is assur to even shecht because the are causing the korban to be wasted. Therefore, the Rambam is very meduyak that before the morning Tamid it is only forbidden to be makriv, whereas after the even Tamid it is even forbidden to shecht.

Wednesday, August 14, 2013

Pesachim 57a - Pei'ah on Vegetables

In the Mishna we find that the people of Yerichos left Peiah on vegetables, and the chachamim protested. The gemara explains that there was a legitimate halachic argument between them. The issue was whether the leaves of turnips qualify as מכניסו לקיום which is one of the conditions to be chayev in peiah. The people of Yericho held that since it is able to be stored together with the turnip bulbs, it qualifies as מכניסו לקיום and is obligated in Peiah, whereas the Chachamim held that this does not qualify as מכניסו לקיום and is exempt from Peiah. Therefore, according to the Chachamim, the people of Yericho who were treating the turnips like Peiah and not separating Teruma and Maaser were causing the poor people to violate the prohibition of eating tevel, that is why they protested.
Rashi on the Mishna explains that the problem with what the people of Yericho were doing is that they were considering it Peiah when it reality it wasn't and causing the poor to eat tevel, as we explained. According to this approach, there is room for Tosafos question - Even if Peiah is not technically binding, it should be considered hefker which is also exempt from ma'aser, so it shouldn't be a problem of eating tevel (Tosafos answers that since they only allowed the poor to eat and not the rich, it didn't qualify as hefker). However, in explaining the story of בן בוהיין, Rashi explains it very differently. Rashi implies that the leaving of Peiah on vegetables was effective in exempting it from ma'aser because it assumes a status of hefker and hefker is exempt from ma'aser. The problem is not that they poor would be eating tevel, rather the problem was that by doing a ha'arama to make it hefker and exempt from ma'aser is not proper. The Maharsha points out that Rashi in the Mishna is not the same peshat as he offer in the story of בן בוהיין, whereas Tosafos understood the case of בן בוהיין to be exactly the way Rashi explained in the Mishna.
Why does Rashi explain the case of בן בוהיין to be such a minor problem and not as he explained by the אנשי יריחו that the problem is a more severe problem of eating tevel? It seems that Rashi understands that the case wasn't limited to turnip leaves where there was mistaken halachic justification, rather בן בוהיין knew that vegetables were exempt from Peiah, but was machmir on himself to make it hefer as if it were Peiach, as a chumra. His intent was to make it hefker so that it would truly be exempt from ma'aser, therefore the concern in the mishna of feeding tevel to the poor doesn't apply. Tosafos question also doesn't apply because the fact that it is effective in exempting from ma'aser by assuming a status of hefker is exactly the problem.

Tuesday, August 13, 2013

Pesachim 56a - Saying Baruch Sheim... Out Loud

The gemara says that we compromise in saying ברוך שם כבוד מלכותו between what Yaakov Avinu did of saying it loud and what Moshe Rabbeinu did (not saying it at all in the parsha of shema in parshas vaeschanan). Therefore, we say it, but we say it silently. Our custom on Yom Kippur is to say Baruch Sheim... out loud because of a special status we have. The Maharsha and Tzlach both point out that the issue with saying Baruch Sheim out loud is only a problem when being used as a break between the pasuk of Shema and V'Ahavta. Therefore, if one is not saying Shema, or is only saying the first pasuk of Shema Yisroel, they can say Baruch Sheim out loud.
This approach fits well with Rashi who explains that R. Meir in the Braisa considers כורכין את שמע to mean, without pausing between the pasuk of Shema and V'ahavta. Therefore, R. Yehuda argues and says that even if you are mafsik with a pause, it is not sufficient, because you need to be mafsik with the phrase of Baruch Sheim. Based on this approach, there is no question that the function of Baruch Sheim and the discussion of saying it loud or quietly is due to the hefsek between Shema and V'ahavta. However, Tosafos explains the problem with being כורכין את שמע and not being מפסיקין, doesn't refer to a hefsek between shema and v'ahavta, rather a hefsek between שמע ישראל and the word Hashem. According to this approach, there is no discussion at all regarding hefsek between שמע and ואהבת, therefore when R. Yehuda comes to argue on R. Meir and insists on the saying of ברוך שם כבוד מלכותו לעולם ועד, it would seem that after saying shema there is an inherent reason to say the pasuk of baruch sheim, not merely for the purpose of serving as a hefsek. Therefore, when the gemara concludes that we compromise to say it quietly, it may apply even in a situation where one is just saying the pasuk of shema and not the entire parsha, they should still say baruch sheim quietly and not out loud.

Sunday, August 11, 2013

Pesachim 53b - Giving One's Life for Kiddush Hashem

The gemara cites a braisa in which Tudos darshens a kal v'chomer to explain why chananya misha'el v'azarya risked their lives by being throne into a fire, rather than bow to the idol of Nevuchadnetzar. They learned from the frogs of מכת צפרדע who jumped into the preheated ovens. Rashi explains that if not for the kal v'chomer the default should be וחי בהם ולא שימות בהם, therefore they had to learn from the frogs that they should forfeit their lives.
Tosafos asks that this was considered בפרהסיא, since it was a public spectacle. Therefore even if it weren't the more severe prohibition of avoda zarah, there is no concept of וחי בהם ולא שימות בהם, and the default is that you must give your life. Why was it necessary for them to derive this concept from the frogs since it is the halachic default? Tosafos answers that it wasn't a real Avoda Zara, rather it was an idol for the purpose of kavod, therefore it wasn't an actual aveira at all. Since technically they were not required to forfeit their lives, it was an extra level of Kiddush Hashem beyond what was required and therefore necessary to learn from the frogs. Tosafos would seem to be against the opinion of the Rambam (Yesodei HaTorah 5:4) who says that one is not allowed to be "machmir" on יהרג ואל יעבור, and is not allowed to give up their life unless the halacha demands it. However, the Kesef Mishna cites the Nimukei Yosef who says that an אדם חסיד who deems it necessary to be mechazeik an area of Torah that people are no adhering to, may make a decision to give up his life even in a time that is not necessary. This would justify the approach of חנניה מישאל ועזריה. The difficulty with this approach is that the gemara in Megillah 12a says that the Jews in the time of Achashveirosh were threatened because of the aveira they violated of bowing to "the idol". Rashi interprets that it refers to the idol of Nevuchadnetzar. According to Rabbeinu Tam who says that the tzelem of Nevuchadnetzer wasn't real Avoda Zara, it would be forbidden for the Jews to sacrifice their lives, so how could they be liable for not doing so? Perhaps Rabbeinu Tam would say that the tzelem being referred to is that of Haman (see Maharsha there) and holds like Rashi in the Megillah who says that the tzelem of Haman was actual Avoda Zara (against Tosafos in Shabbos and Sanhedrin in the sugya of worshiping out of ahava and yi'rah).
The Maharsha justifies Rashi's position by saying that even if it were bonified avoda zarah, it could be that Tudos held like the opinion in Sanhedrin 74a that even for Avoda Zara one does not need to sacrifice their life. Regarding the point of it being בפרהסיא, the Maharsha says that since it wasn't in the presence of 10 Jews, it doesn't qualify as פרהסיא even if it were in public (perhaps Tosafos assumed that since 10 Jews knew about it, it qualifies as פרהסיא even if it is not in their presence, as we find by Ester that the gemara Sanhedrin 74b considers פרהסיא since 10 Jews were aware that she was living with Achashveirosh - see Shach in Y.D.).
However, the Maharsha points out that due to the concept of וחי בהם - ולא שימות בהם, the entire kal vchomer learned from the frogs is ruined. How can they learn from the frogs who are not commanded in the mitzvah of וחי בהם, to themselves who are commanded in וחי בהם?
Both the Tzlach and the author of the Nesivos (R. Yaakov M'Lisa in sefer Emes L'yakov on parshas Va'eira) explain that when the gemara says מה ראו חנניה מישאל ועזריה שמסרו נפשן על קדושת השם, does NOT mean that they should have bowed down due to the mitzvah of וחי בהם. Rather, the question of the gemara is predicated on the fact that the kiddush hashem would only result if חנניה מישאל ועזריה would make it out alive, otherwise it would be a Chilul Hashem. The Emel L'yakov (here the he deviates from the approach of the tzlach) Kal V'chomer from the frogs was not whether they must or can allow themselves to be thrown into the fire, rather they learned from the frogs what would happen if they were to allow themselves to be thrown in. The kal v'chomer was that if the frogs who were not commanded on kiddush hashem, a miracle was performed so that they exited alive to enable a kiddush hashem, certainly for them who were commanded on kiddush hashem, Hashem would make a miracle to enable the kiddush hashem. Based on this approach, it wasn't an issue of sacrificing their lives because the kal v'chomer taught them that they would make it out alive.

Wednesday, August 07, 2013

Pesachim 50b - Lo Lishma

The gemara says that a person should always involve himself in Torah and Mitzvos even she'lo li'shma because it will lead to lishma. In my sefer, Nasiach B'chukecha (pg. 178) I cited the Dibros Moshe (Shabbos He'ara 92) who says that it would seem that something only qualifies she'lo lishma when it is being done for the purpose of a mitzvah, just that there is an ulterior motive it why it is being done. For example if one studies Torah for the purpose of receiving honor that it shelo lishma because their intent is to do the mitzvah of Torah study just that it is for a non-ideal objective. However, when one is so to speak mis'aseik in the doing of a mitzvah, and doesn't intend to even do the mitzvah, it should not even qualify as she'lo lishma and there should be no reward. However, Rav Moshe proves from this gemara of שפל ונשכר being as Tosafos describes a lazy person who abstains from doing work and happens to also not do work on erev shabbos, receives reward of shelo lishma. In this case his abstention from work is not for the intent of even doing a mitzvah, yet it still qualifies as shelo lishma for which he receives a reward.
There is an interesting question regarding שלא לשמה whether it has inherent value, or whether in and of itself is not significant but one receives reward since it will put them on the path of doing it lishma. We can derive from the gemara that even one who abstains from doing melacha out of laziness qualifies as shelo lishma, that the advantage of lo lishma is not inherent, rather just because the routine will eventually lead to lishma. ויש לדחות.

Tuesday, August 06, 2013

Pesachim 49a - Returning from a Mitzvah to destroy Chometz

The Mishna says that one who is on his way to shecht the korban pesach or do a bris milah and remembers having chometz at home, if there is time to return, destroy and still be able to do the mitzvah, that is what he should do. However, if there is a conflict so that by returning to destroy the chometz he will be unable to perform the mitzvah, he should just be mevatel the chometz and continue with doing the mitzvah. The rationale is as Rashi explains, since bitul is sufficient m'doraysa, chazal did not impose the requirement to destroy chometz if it will interfere with a mitzvah. The implication certainly is that in a situation where one cannot be mevatel their chometz because it is after the z'man issur, they will need to go back and destroy their chometz even at the expense of the mitzvah. Nonetheless, this point is a machlokes between the Magen Avrohom and Even Ha'Ozer. The Magen Avrohom says he would go back to destroy the chometz but the Even Ha'ozer says he would continue with the mitzvah and leave the chometz at home.
The Tzlach asks on the Even Ha'ozer, since the mitzvah we are speaking about is korban pesach, how can we allow him to shecht the korban pesach while he still has chometz since that will be a violation of a la'av of shechting the korban pesach while he has chometz? The Tzlach points out that in this situation it is not possible to suggest that the aseh of korban pesach would push off the lo ta'aseh of shechting the korban pesach while he has chometz because the concept of aseh docheh lo ta'aseh applies only when they happen to conflict, but a lo ta'aseh that specifically refers to the issur of having chometz in one's possesion while shechting the korban peach, cannot possibly be pushed off by the mitzvah of shechting the korban pesach.

Wednesday, July 24, 2013

Pesachim 36b -How D'rabonons impact D'oraysa

There are many areas of halacha where an issur drabonon can potentially impact a doraysa and the question is whether the Torah regards an issur drabonon to be permitted, or as an issur. For example the braisa says that just as one cannot be yotzei matzah with bikurim since it can't be eaten בכל מושבות, one should also not be yotzei with maaser sheini. Rashi explains that since maser sheini, once brought into yerushalayim can not be taken out to be redeemed, there is no heater to eat it בכל מושבותיכם therefore one should not be able to be yotzei their mitzvah of matzah. Rashi points out that the issur to take it back out and redeem it is only drabonon yet it would be a Torah recognized issur and prevent maser sheini from being regarded as something that can be eaten בכל מושבותיכם. Tosafos on 38a d.h. aval says this exact point in their second answer.
Similarly, when the gemara 35b says that one can't be yotzei matzah with tevel that is only tevel drabonon, rashi explains that the problem is מצוה הבאה בעבירה implying that even an issur drabonon will be regarded as an aveira and prevent the mitzvah doraysa from being fulfilled. However, the maharsha points out that an issur drabonon can qualify as an aveira for מצוה הבאה בעבירה but apparently not for the concept of מי שאיסורו משום בל תאכל חמץ לבדו that rashi quotes on the top of 35b from ravina on top of 36a.
A similar idea is found in Tosafos 29a d.h. ein, that an issur drabonon of not being able to redeem kodshim to feed to dogs can cause there not to be an issur doraysa of meila. Tosafos explains דכיון דאמרו רבנן אין פודין לא שויא מידי. However, Rashi 7a needs the concept of hefker beis din to explain why an issur hanaah drabonon would prevent kidushin doraysa. From the fact that rashi doesn't say simply that once the rabbonon don't permit benefit it is essentially worthless, implies that rashi holds an issur hanaah drabonon isn't considered worthless by the Torah.

Monday, July 15, 2013

Pesachim 27b - No Wood To Burn...

The gemara explains that the source for R. Yehuda that chometz must be burned rather than using other methods of destruction is a kal v'chomer from Nosar. The Rabbonon respond to R. Yehuda that if the source is going to be a kal v'chomer from no'sar (rather than a ma matzinu), chometz must be an absolute chumrah. However, here the chumra is a chumra that will lead to a kulah - לא מצא עצים לשרפו יהא יושב ובטל והתורה אמרה תשביתו שאור מבתיכם - If one doesn't have wood do burn chometz they will end up not burning it and be in violation of tashbisu.
Many Meforshim ask, that if one doesn't have wood to burn it they will be mevatel, thereby avoiding any problems. Why does the gemara assume that it will lead to a kulah since on a Torah level being mevatel the chometz is sufficient? Because of this question the kolbo (on of the rishonim) proves that chometz that one is aware of cannot be batul. Bitul is a special method that only works for chometz that one is unaware of. This approach can certainly not fit with Tosafos 21a (mentioned on this blog) who holds that for chometz that one is unaware of there is no violation of בל יראה ובל ימצא even without bitul. According to Tosafos biutl is only necessary for chometz that one is aware of, so it must be that bitul even works on chometz that one is aware of.
The Tzlach explains that according to Tosafos 12b who says that R. Yehuda demands burning only after the z'man issur, but prior to midday on erev pesach one can destroy chometz however they choose, there is no question. The Rabbonon are saying to R. Yehuda, after midday on erev pesach when one can no longer be mevatel (since it is already assur b'hana'ah) and you R. Yehuda insist on burning, it will lead to a leniency because one who doesn't have wood will not be able to fulfill tashbisu by destroying their chometz. 
Another approach is that according to Tosafos 4b that bitul is not learned from tashbisu, rather it is a method of hefker, the Rabbonon may be saying to R. Yehuda that if one would not have firewood they could not perform the mitzvas aseh of tashbisu. They can certainly rid themselves of chometz using bitul or other methods of destruction, but they would not fulfill the mitzvah of tashbisu. However, according to Rashi 4b who says that Tashbisu is the source of bitul, and Rashi on 12b who says that after the z'man issur one can use any method of destruction it would seem that bitul is a perfectly legitimate way to fulfill tashbisu prior to the z'man issur and other methods are fine after the z'man issur, so what is the Rabbonon's question on R. Yehuda?
The Tzlach explains that Rashi on 4b who says that bitul is learned from tashbisu goes according to the Rabbonon that chometz can be destroyed in any method one chooses, therefore bitul can also be a fulfillment of tashbius. But, according to R. Yehuda who insisits on burning, bitul is not a fulfillment of tashbisu.

Sunday, July 14, 2013

Pesachim 25a - Refuah from Asheira Wood

The gemara says that in a situation of sakanas nefashos one is allowed to derive benefit from all items that are forbidden to benfit from i.e. orlah and kilei ha'kerem, but not from asheira wood. Although the gemara thinks originally that for pikuach nefesh one should be able to use asheira wood, the maskana rejects that. It seems that originally the gemara assumed that the issur to save one's life by doing avoda zara is only when they would be worshiping avoda zara, but here where they are merely benefiting from the avoda zara without worshiping it, the gemara thought that one would not have to give up their life to avoid that. The conclusion is that even to avoid benefiting from the asheira one would have to sacrifice their life.
The questions remains: Why? Why does one need to give up their life to avoid benefiting from avoda zara and not just for worshiping avoda zara?
Tosafos says that we are speaking about a case where the refuah element is not associated with the type of tree or anything physical, rather it comes from it being an avoda zarah tree. Since another tree of the same type that is not an avoda zara tree would not work, there is a concern that one will be drawn into the worship of avoda zarah since his life was saved using its powers. It would seem from Tosafos that this is a Rabbinic extension demanding יהרג ואל יעבור because using the avoda zara would inevitably lead to worshiping the avoda zarah. According to Tosafos, if one were using the physical components of the tree which just happens to be avoda zara, there is no concern.
The Ran has a different approach. He understands that included in the issur of avoda zara is the worshiping of avoda zara וכל אביזרייהו. Just as by גילוי עריות one must give up their life to avoid even the אביזרייהו of giluy arayos, avoda zara would be the same. By using avoda zara for refuah, one would be in violation of לא ידבק בידך מאומה which would be an איזרייהו דעבודה זרה, therefore one must give up their life to avoid it. The Ran holds that any la'av that is specific to avoda zara (or one of the big 3 aveiros), even one that you aren't חייב מיתה for it, you must give up your life.
Rashi seems to have a third approach. Rashi writes that using avoda zara to heal oneself is נראה כמודה בה, looks like you are agreeing and recognizing it, therefore one must avoid that even at the expense of their life. Rashi is difficult to understand. Is this concept of נראה כמודה בה an actual issur of avoda zarah? It sounds like some form of מראית עין where people will think that you are are recognizing the avoda zara even though you aren't. Why would one have to give up their life for that? 
It seems to me that this can be explained based on the sugya in Sanhedrin 61b where Abaye and Rava argue whether avoda zara מאהבה ויראה qualifies as avoda zara. Abaye focuses on the persons actions and therefore holds that you are chayev, whereas Rava focuses on the mindset and says that since you don't accept it as a GOD and are only doing it out of fear or intimidation, you are patur. Even Abaye admits that in a situation where one is not at all accepting the avoda zara as a G-d such as standing in a church bowing down to an idle but thinking he's in a shul bowing to Hashem, it doesn't even qualify as a shogeg of avoda zara - אי קסבר בית הכנסת הוא והשתחוה לו, הרי לבו לשמים. Rashi points out that even if one were standing in a beis avoda zara, well aware of where he is and bows down with intent to Hashem, there is no punishment for worshiping avoda zara. Clearly we see that avoda zara is not violated by action alone. It is only violated when one intends to accept it as a god.
Being that avoda zara is only violated when one intends to worship, why do we ever require יהרג ואל יעבור by avoda zara? Why don't we just tell the person to have in mind to serve Hashem? Clearly, the obligation to sacrifice one's life is not just to avoid the technical violation of avoda zara. Doing an action that seems like avoda zara, even בצנעה with no one watching  is a violation of ואהבת את ה' אלקיך for which one needs to sacrifice their life as we learn from בכל נפשך. Here too, Rashi is saying that since using asheira gives the impression of being מודה בה, even if no one is watching, one must give up their life. The din of יהרג ואל יעבור for avoda zara is not to avoid an issur avoda zarah, it is to avoid a violation of ואהבת את ה' אלקיך. Any connection to avoda zara that chazal deem a violation of אהבת השם one must give their life to avoid.

Thursday, July 11, 2013

Pesachim 24b - Ta'am Ki'ikar

At first the gemara thinks that consuming the juice of fruits of orla is not a normal way to eat the fruit and therefore qualifies as שלא כדרך הנאתו. The gemara concludes that the rationale to permit fruit juice of orla is permitted because we regard the juice as being זיעה בעלמא - sweat of the fruit without the real taste and therefore isn't considered to be eating the fruit of orla.
Tosafos asks a fundamental question. We pasken that טעם כעיקר is d'oraysa (unlike Rashi in chulin). How could the fruit juice be any less significant than ta'am ki'ikar? Tosafos leaves the question unanswered.
The gemara says in Brachos that one makes a shehakol on fruit juice because it isn't considered the fruit, rather just זיעה בעלמא just as the gemara says in the context of orlah. However, in Brachos 39a the gemara says that on vegetable soup (beat soup) one would make a בורא פרי האדמה. Tosafos writes that there is a difference without articulating the difference. The Rosh (18) explains that the vegetable soup has the taste of the vegetable and therefore deserves the same bracha as the vegetable. But the juice of a fruit doesn't have the taste of the fruit. The Rosh then adds - ואפשר שאם בישל הפרי ונכנס טעם הפירות במים מברך עליהן בורא פרי העץ. The Rosh seems to understand that the cooked juice of the fruit contains the full flavor of the fruit, whereas squeezing out the cold juice doesn't capture the full flavor.
The Rashash indicates that this is also the rationale for why we don't forbid the juice of orlah fruits based on ta'am k'ikar. Although if one would cook the fruit, the full taste of the fruit would come into the water therefore it would be included in the issur orlah, but without cooking the fruit we would not give the juice a status of the fruit based on ta'am k'ikar.
It seems that the ואפשר of the Rosh, implying that he isn't entirely convinced, is entertaining the possibility of the distinction between fruits and vegetables. Perhaps only by vegetable soup would we say that one makes a borei pri ha'adama, but a fruit soup would be she'hako, not ha'eitz. However, the Rosh leans toward the approach of not distinguishing between fruits and vegetables. Therefore, any water in which the fruit or vegetable was cooked in would obtain the bracha status of the fruit or vegetable.
The Rashba (cited in divrei chamudos) considers the distinction to be whatever is normal and regular to be eaten that way. Fruits are eaten by eating the fruit, not squeezing the juice and not making a soup, therefore if one would either squeeze out the juice or cook a soup with it, the bracha would be she'hakol. But, vegetables which are routinely cooked and turned into a soup, the bracha would be ha'adama. Based on this approach, there is no difference between cooked soup and squeezing a fruit, either way the taste may be significant, but since its not a normal way to eat the fruit the bracha would be she'hakol. According to this approach, it remains difficult to understand why fruit juice of orlah would not be אסור מדאורייתא based on the concept of טעם כעיקר.

Wednesday, July 10, 2013

Pesachim 23a - Doing Business with Prohibited Foods

In the discussion trying to prove whether the language of "don't eat" in the torah, automatically includes the prohibition to benefit, the gemara tries to prove the point from sheratzim which are permitted to receive benefit from even though it says לא יאכל (yei'achel) which is a question even on Chizkiya. The gemara answers that although the language of "yei'achel" implies an issur hana'ah, the Torah writes לכם to imply that שלכם יהא, and permit benefiting from it. To which the gemara asks, if so it should permitted to benefit from it even lichatchila, why does the braisa say that one cannot be in the business of buying and selling non-kosher animals. The gemara responds that the pasuk also says יהיו - בהוייתן יהא. The Taz in Y.D. 117:16 points out that the contradiction in the pesukim that forbids selling lichatchila, but if it comes your way you can sell it and receive benefit, is the source that one is not allowed to buy and sell prohibited foods. The gemara implies that the prohibition to do business with forbidden foods is d'oraysa, because it is derived from the contradiction in the pesukim שלכם implying its permitted and יהיו implying that its forbidden. The compromise is that it is not an issur hana'ah but an issur to do business with forbidden foods (unless one just happens to end up with it).

Tosafos d.h. amar, says explicitly that it is an issur d'oraysa. However, Tosafos limits the issur d'oraysa to include only selling items that are eatable. One can process soaps and lotions from non-kosher animals.

The Rashba (cited in Taz) disagrees and holds that the nature of this issur is only d'rabonon due to a concern that one may come to eat from it. The gemara strongly supports Tosafos against the Rashba.

Tuesday, July 09, 2013

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

Generally speaking we assume that בל יראה ובל ימצא have nothing to do with actually seeing or finding chometz. The braisa on 5b makes it clear that hiding chometz so that one doesn't see it, accomplishes nothing to avoid the issurim. However, in that context we only include in the issurim chometz that one is fully aware of. There is a big machlokes Rishonim (Tosafos 21a and Rosh 6b) whether one is in violation of בל יראה ובל ימצא on chometz that they are completely unaware of, even without being mevatel it.
The gemara on 21a says that if we were only told that one can leave chometz in a place where there is a חיה, that is because a wild animal has a tendency to hide the chometz, but a more domesticated animal that will not hide the chometz, rather leave it out in the open causing the violation of בל יראה ובל ימצא, we would think that it is forbidden to feed them prior to pesach. The gemara seems strange. How does the wild animal hiding the chometz help the owner avoid בל יראה ובל ימצא? Tosafos derives from here that any chometz which exists in a hidden place that the owner is unaware of is not subject to the issur of בל יראה ובל ימצא. Unlike בל יטמין which is assur because the owner knows where it is, here the owner doesn't know where it is. Based on this, Tosafos explains the question of the gemara 6b, why must one be mevatel on the night before erev pesach, just be mevatel when you find it? The gemara answers you may find it after it already became issur when it is already too late to be mevatel. Tosafos understands that the gemara knew all along that we were speaking about finding it once it has already become assur, yet being mevatel at the point when you find it would be sufficient because until you find it there is no violation and when you find it you will immediately be mevatel. To which the gemara answers that after the chometz becomes assur bitul is not longer a possibility.
However, the Rosh 6b explains that by the Torah writing לא יראה rather than  לא תראה it implies that one cannot have chometz in any area that it is fit to be seen, even if now it is not known about and not seen. Therefore, if a person was lax on bedikas chometz and found chometz on Pesach that they were not mevatel, according to the Rosh they were in violation of בל יראה ובל ימצא the entire time. Whereas Tosafos will hold that they were not in violation until they find it since they didn't know about it, and even when they find it they are not in violation so long as they are busy trying to destroy it (as tosafos writes 29b d.h. rav ashi).
According to the Rosh, the gemara 6b which suggests to be mevatel when you find it was assuming that one would find it prior to the z'man issur when bitul was still possible, to which the gemara is mechadesh that we are concerned that he will find it after the z'man issur. Therefore, without being mevatel in advance he will be in violation from the moment of the z'man issur even though he has not idea that it even exists.