Thursday, April 25, 2013

Eiruvin 49a - Is an Eiruv a Kinyan or Dirah?

First we must qualify the machlokes. The gemara just finished establishing that the one who houses the eiruv doesn't need to contribute to it because כולהו הכא דיירי, clearly implying that eiruv works משום דירה, as if everyone lived in the house that houses the eiruv. Yet, one line later the gemara develops a machlokes whether eiruv is משום קנין or משום דירה. Furthermore, the gemara 48b says אם אמרו דיורין להקל יאמרו דיורין להחמיר, implying once again that to be meikel we consider eiruv to be "dirah", not a kinyan.
The Gaon Yaacov approaches the sugya (according to Rashi) that all agree in concept that the result of the eiruv is to consider everyone living in the place that houses the eiruv. The machlokes in the gemara is the method to achieve that result, kinyan or dirah. Shmuel holds that a kinyan must be done so that the place which is housing the eiruv is מקנה his reshus to the others in the chatzer to consider it as if they are all living together in this house, whereas Rabba holds that without the method of kinyan, by simply placing their bread in this house it is considered to be as if they are all living in this house. Therefore, all agree that whatever method is used, the result is כולהו הכא דיירי, it is as if all are living in this house.
The Gaon Yaacov points out (in his cryptic style) a fascinating and fundamental difference between Rashi and Tosafos. A careful reading of Tosafos d.h. Eiruv, implies that the "kinyan" we are speaking about does NOT mean that the owner of the house sells rights by the receiving of the bread from the others in the chatzer (rashi). Rather, they are all makneh their reshuyos to each other to create a partnership in all the houses of the chatzer. According to this approach, there is a big conceptual difference as to how eiruv works whether it is kinyan or dirah. Shmuel who holds that it is kinyan is saying that they must have joint ownership in the entire chatzer, whereas Rabba who holds that it is dirah would still consider it as if all the people of the chatzer were living in one house.
The gemara makes it clear that even if the eiruv works as a kinyan, and money should be the ideal thing to use for a kinyan, the Rabbonon didn't want to allow it to be used even bidieved because they were afraid that people would think that money is the primary, forget that bread can be used, and since money isn't always readily available the concept of eiruv would be forgotten. Yet, in the very next line the gemara says that according to Shmuel who holds that an eiruv is משום קנין, a vessel can be used to create the kinyan. Apparently the gemara holds that although money cannot be used since it isn't as common, a vessel can be used since everyone has some kind of kli which can be used for a kinyan.
Tosafos asks that according to Shmuel that Eiruv works as a kinyan, why when using bread do we insist on enough food for two seudos; as long as there is a שוה פרוטה worth in the bread, it should be sufficient? Tosafos supports this question by saying that even a kli is usable for an eiruv according to this opinion, even though it is not eatable. Therefore, bread worth a peruta but less than 2 meals worth should also be usable? It seems to me that in this question Tosafos is arguing with Rashi. Rashi assumed that the use of a kli was serving as a kinyan sudar, not as a kinyan kesef. Rashi seems to understand that when we disallow the use of money for eiruv, we are essentially saying that we don't allow anything to be used בתורת דמים, except for bread. Therefore, when the gemara permits a kli, it must be permitting the use of a kli as a kinyan sudar, not בתורת דמים. According to this approach, it wouldn't make sense to prove that bread that is worth a peruta should work even when it doesn't contain 2 seudos from the fact that a kli an work. When a kli is working it is not at all working בתורת דמים, rather בתורת קנין סודר, and food cannot work as a sudar. Therefore, Tosafos seems to understand that when we permit the use of a kli, we are permitting a kli to be used even בתורת דמים, therefore food should also work b'toras damim even when it doesn't contain 2 seudos worth.
Tosafos answer to this question is difficult to understand. Tosafos writes that when you specify that the eiruv is being done as a kinyan, you don't need two seudos worth, only שוה פרוטה. But when it is done סתם without any specification it requires חשיבות אוכל which essentially means that it must contain two seudos worth. Does Tosafos mean to say that even Shmuel who holds that eiruv can work as a kinyan would hold that it can also work as a dirah? That doesn't seem to be the case because the gemara insists that according to Shmuel the bread be worth a peruta, and less wouldn't work even if it is not being done explicitly b'toras kinyan. So what does Tosafos mean to say?

Monday, April 22, 2013

Eiruvin 45a - Hatzola Returning Home

There is a well known machlokes between Rav Moshe and Rav Shlomo Zalman which they both have elaborate teshuvos on, regarding paramedics and EMT's who went on an emergency call whether they can drive back home on Shabbos. Rav Moshe (Igros Moshe, O.C. 4:80) permits them to return home based on Tosafos understanding of the end of the Mishna 44b. The Mishna says - כל היוצאים להציל חוזרין למקומן. Based on the context of the Mishna we are speaking about those who left home with the "permission" of the Rabbonon so that they can tend to a pikuach nefesh type situation, and returning home would violate techum and also violate carrying their weapons. The gemara permits them to even carry their weapons home. Tosafos explains that the nature of this heter is התירו סופן משום תחילתן. We need to permit them to return home, otherwise they are not going to go at all. Tosafos says that only reason that this isn't listed among the other התירו סופן משום תחילתן in Beitzah 11b is because in each of those cases there is some other justification to permit it and it's not clearly permitted due to התירו סופן משום תחילתן, whereas over here it is obviously only permitted for that purpose and isn't considered much of a chiddush. Based on this approach, Rav Moshe understands that although all the cases in Beitza of התירו סופן משום תחילתן, only violate a Rabbinic prohibition, we learn from our sugya that we apply the concept even to permit the violation of a Torah prohibition since by not doing so there is a risk that one will not go to save lives.
Rav Shlomo Zalman (Minchas Shlomo 8) after asking permission from Rav Moshe to publish his disagreement (which is a great tzidkus on his part) has an elaborate teshuva where he shows from the gemara that Rav Moshe is taking the Tosafos too literally. The gemara explains that the last line in the mishna - כל היוצאים להציל חוזרין למקומן is actually not permitting one to travel further than the 2000 amos (at least in a case where the Jews have the upper hand). The Mishna is only permitting one to bring their weapons with them wherever they go, because by leaving their weapons behind, they wouldn't be prepared to ward off a counter attack. The gemara implies that there is no heter סופן משום תחילתן, rather the heter is for the סופן itself which is a case of pikuach nefesh. Rashi writes explicitly that when the gemara answers שחוזרין בכלי זיין למקומן, it means to say that they are stuck in the 2000 Amah radius of where they end up, just that they are entitled to take their weapons with them and don't need to leave it there. Therefore, there is no source from which to draw that we can apply the concept of התירו סופן משום תחילתן to even permit an issur d'oraysa.

Thursday, April 18, 2013

Eiruvin 42b - Intentionally Leaving Techum and Ending Up in Enclosed Area

The Mishna 41b speaks about one who was chased by goyim out of his techum and ends up in an enclosed area, Rabban Gamliel and R. Elazar Ben Azarya consider the entire enclosure to be like 4 amos and permit him to walk anywhere within. Although R. Yehoshua and R. Akiva disagree and limit him to 4 amos, the gemara 42b paskens in accordance with Rabban Gamliel. In truth, that itself is a dispute between Rav and Shmuel whether we pasken like Rabban Gamliel only in regard to a boat that sets sail on Shabbos since the person began Shabbos in those mechitzos, but not when he was placed in an enclosed area on Shabbos, Tosafos 43a writes that we follow the opinion of Rav who rules like Rabban Gamliel even by דיר וסוהר. Based on this, Tosafos rejects the opinion of the Rashbam who writes that if one entered a boat on Shabbos that then set sail he would be bound to his 4 amos. That would be true if we differentiate between the case of the boat and דיר וסוהר (and only permit it by a boat when he began shabbos in that enclosure), but being that even by דיר וסוהר we pasken like Rabban Gamliel that one can walk throughout the entire enclosure, the same would be true for one who enters a boat on shabbos (Rabbeinu Chananel paskens like Shmuel, but the Rif also paskens like Rav).
It is not clear what the halacha is if one were to intentionally leave their techum and find himself in an enclosure, are we stricter in that case to limit him to his 4 amos? The Shulchan Aruch (405:6) writes that we are only lenient to consider the enclosure to be 4 amos if he were transported there by goyim, or some other level of accident, but not if he went there on his own. - אבל אם יצא חוץ לתחומו לדעת, אע"פ שהוא בתוך אחד מאלו אין לו אלא ד' אמות. Apparently, when one intentionally violates the issur of techum, we impose a penalty on him and don't allow him to consider an enclosed area to be like within his 4 amos. The Biur Halacha writes that this is the opinion of the Rambam and many other Rishonim. However, Tosafos 29a (last answer) and the Rashba and Ritva all hold that even if one leaves his techum intentionally and ends up in an enclosed area, he can consider the entire enclosure to be within his 4 amos.
It seems to me that there is a contradiction between Rashi on 42a and 42b regarding this point. Rashi in both places is trying to justify the statement of Rav Nachman 42a that if one begins shabbos in an empty field and on Shabbos there is a wall built around him, he is still bound to his original 2000 Amah techum and cannot walk throughout the enclosure. Why is this different than the case of Rabban Gamliel where one is airlifted and dropped in a דיר וסוהר where we allow him to walk throughout the enclosure? Rashi 42a answers that in the דיר וסוהר case where otherwise we would only allow him to have 4 amos, we are lenient on him to consider the entire enclosure like 4 amos. But in the case where one begins shabbos in an empty field, he is not stuck, he has a techum of 2000 amos, so we have no reason to be especially lenient and give the area a status of 4 amos. Rashi makes no mention of the nature of how he ended up in that situation, implying that it doesn't matter. However, Rashi 42b d.h. lo gazrinan, answer the question differently, by saying that when goyim transport him against his will or some other type of o'nes, we are easy on him to consider the entire area like 4 amos, but if nothing is done against his will, we don't. According to Rashi on 42a we should apply the leniency even if he willfully leaves his techum, but according to Rashi on 42b we only are lenient to consider the entire enclosure to be 4 amos if he ends up there due to some sort of o'nes.
As an aside, we also learn from Rashi 42b that the restriction of not considering the enclosure to be like his 4 amos, is not a penalty for violating techum, rather it is a leniency that we only provide in a situation of o'nes. Therefore, if he wasn't o'nes, even though he wasn't מזיד, we also don't allow him to walk within the entire enclosure.

Monday, April 15, 2013

Eiruvin 40b - Drinking the Cup After Making HaGafen

The gemara is trying to figure out how one can make shehechiyanu on a cup of wine on Yom Kippur. The gemara suggests making shehechiyanu immediately before the start of Y.K., to which the gemara says that the bracha is an acceptance of the day and one could not drink after making the bracha. The gemara suggests the option of making shehechiyanu and leaving the cup without drinking, to which it responds - המברך צריך שיטעום. The gemara finally suggest giving to a child, to which it says that it will train him to drink on Y.K. and he may continue to do so as an adult. Rashi points out that the implication of the gemara is that giving the wine to a child would not violate the המברך צריך שיטעום, from the fact that the gemara needs to find another problem with the suggestion to give it to a child, rather than repeat the point of המברך צריך שיטעום. Rashi writes that the halacha of drinking from the cup is simply that someone must drink, but it doesn't need to be the one who made the bracha. The purpose of drinking from the cup is that if one would make borei pri hagafen without drinking, it would be degrading to the כוס של ברכה. The Rashash points out that Rashi seems strange because he seems to confuse the cause and effect. The reason that one must make a borei pri hagafen is because המברך צריך שיטעום, therefore he must make a bracha to drink. Rashi presents it as if the reason one must drink is because making a בורא פרי הגפן without drinking would be degrading to the cup. Another way to express the issue is that rather than focusing on degrading the cup which at worst would be a d'rabonon problem, Rashi should focus on the borei pri hagafen being l'vatala which is certainly more severe and according to the Rambam even a d'oraysa problem?
There are achronim who deduce from Rashi that even if there was not a halacha demanding that one drink from the cup, they would still make a בורא פרי הגפן. The rationale is that the bracha of borei pri hagafen in the context of a kos shel bracha, doesn't merely serve the function of a ברכת הנהנין. Rather it becomes part and parcel of the brichas hamitzvah. Just as on shabbos morning when the kiddush consists of nothing but a borei pri hagafen, one can be motzi others even if the me'vareich already made hagafen because it is a birchas hamitzvah. The same would be true for the bore pri hagafen made in the context of any kos shel bracha. Therefore, the bore pri hagafen is essential to the kos shel bracha, not just a prerequisite to enable one to drink from the wine. Rashi just comments that once hagafen is made on the cup, it is a bizayon to leave the cup without someone drinking from it.

Eiruvin 38-39 - One Kedusha Or Two

The Mishna 38a cited a machlokes between R. Eliezer and the Rabbonon regarding Yom Tov and Shabbos that are back to back, whether they are regarded as one kedusha (one long 48hr day), or two. In that context there is no safeik, both days are kodesh. The machlokes is only whether the two kedushas remain independent or whether they merge together to be one. It is also not clear whether they are arguing on a d'oraysa level, or a d'rabonon level. It is possible that m'doraysa everyone views it as two separate days, but the Rabbonon consider the kedusha to be merged into one for the purpose of eiruv. The Rabbonon hold that we consider it a safeik and one would need to be machmir that it is one kedusha for the purpose of not making an eiruv in an opposite direction each day, and be machmir that it is two kedushos to require that the eriuv be in tact during the bein hashmashos of y.t. ending going into shabbos to permit travel on shabbos.
The Mishna on 39a has a discussion regarding Rosh Hashana whether we view it as one kedusha or two. The term two kedushos in that context means something different than it does by y.t. and shabbos that are back to back. There are no 2 kedushos regarding R.H., it is a one day yom tov. The concept of 2 kedushos essentially means to view the two days as a safeik where one day is Y.T. and the other is not, whereas the concept of one kedusha means to view it as one long day of kedusha m'drabonon. The rationale to view it as one long kedusha is explained by the gemara in Beitza and R.H. (and rashi here). Due to the mess up of the shir of the afternoon korban tamid, chazal instituted that they would not accept eidim after mincha time. Therefore, those who weren't close enough to know what was going on the the Beis din would have only 2 possibilities, 1. Eidim came the first day early enough to make it R.H. so that the first day was Y.T. and not the second. 2. Eidim didn't show up by the allotted time thereby forcing chazal to make R.H. on the second day, yet maintaining the remainder of the first day with the status of Yom Tov regarding melacha. Being that the second possibility is essentially a Rabbinic institution to stretch the kedusha of the second day back into the first, it is viewed as one kedusha.
We pasken like R. Yossi who is the לא הודו לו חכמים of the mishna that hold it is one kedusha. This is evident from the Shulchan Aruch (600, 1) who paskens that by Rosh Hashana if an egg is laid on day one it cannot be used on day two, similarly if a deer is trapped on day one it cannot be shechted on day two. That is because we consider the kedusha to be one kedusha and not a safeik. However, it is not clear whether only we pasken like R. Yossi to be machmir for one kedusha and not allow eiruvei techumin in separate directions for the two days, or whether we are even meikel for one kedusha thereby permitting one to travel the second day of R.H. even if the eiruv were eaten prior to the bein hashmashos going into that day. It would seem more logical that we are only machmir for one kedusha, but even R. Yossi should conclusively consider it one kedusha since in the time of the mikdash there was also the possibility that eidim would have come on time thereby making the first day yom tov. However, the Rashba (avodas hakodesh, eiruv techumin 18) states explicitly that if the eiruv is eaten before the bein hashmashos of the end of day way and start of day two, one can still rely on it on day two. The Rambam (Hil. Eiruvin 8, 8) also seems to hold that by R.H. the eiruv only needs to be there the first bein hashmashos, not the second.
If it is indeed true that the Rambam and Rashba hold that the two days are considered one kedusha even to be lenient, it should not only impact eiruv techumin but even impact the ability to cook and do other melacha on one day of R.H. for the next. Yet, in Shulchan Aruch (O.C. 103, 1) the mechaber paskens that it is forbidden to cook from one day of Y.T. for the next, even by two days of Rosh Hashana. Why? The Gaon Yaacov in explaining the opinion of the Rambam and Rashba writes that their opinion only makes a difference in the context of eiruv. The only two possibilities are either that it is one kedusha, or that the first day is Y.T. and not the second. There is no possibility after the takana not to accept eidim that the second day has a kedusha that is separate from the first. Therefore, it is sufficient to leave an eiruv by the bein hashmashos of the first day, even if it isn't there by the bein hashmashos of the second day, one can travel since there is no possibility that the second day has kedusha and not the first. But, in the context of cooking and baking from one day to the next, regardless there remains the possibility that the first day is Yom Tov and one is essentially cooking on Y.T. for the next day. Nowadays when we have a fixed calendar and the first day is definitely Y.T. from which we count Yom Kippur, it is certainly forbidden to cook on the first day for the second. The Biur Halacha (103, d.h. v'afilu) cites the Magen Avrohom who says exactly that - the issur to cook on day one for day two goes even according to the Rambam. However, the Gr"a seems to say that this issue is dependent on the machlokes between the Rambam and other Rishonim. The Biur Halacha doesn't understand the approach of the Gr"a based on a similar logic to the Gaon Yacov - the first day is definitely Y.T. on a Torah level, so how can one possibly cook on Y.T. for after Y.T.? Perhaps the Gr"a holds that since הואיל can be used to permit cooking from yom tov for a weekday, as the gemara in pesachim 46a uses it, on a d'rabonon level we can rely on the kedusha achas concept to allow cooking from one day to the next. Based on this approach, even the Rambam will only permit cooking relying on הואיל and therefore insist that the food be ready to be eaten before nightfall, and not just rely on the kedusha achas to permit an issur d'oraysa.
Regarding the bracha of shehechiyanu, the Shulchan Aruch (600, 2) holds that even in the absence of a fruit on which to make shehechiyanu, one would make shehechiyanu on the second day of Rosh Hashana. The difficulty with this is that since we pasken that it is a kedusha achas, at least to be machmir as we find by the beitzah and by the trapping, we shouldn't be making shehechiyanu either? The M.B. deals with this by simply saying that although it is considered one kedusha, it is still two separate days and therefore fit for a new shehechiyanu. I would like to suggest another approach as to why we make shehechiyanu even if it is technically kedusha achas. On the side of kedusha achas, the primary day of Yom Tov will still be the second, not the first. Meaning, the second day will be the Y.T. on a Torah level from which we count Yom Kippur, and the first day is only a Rabbinic implemented kedusha כי היכי דלא לזלזולי ביה. Therefore, it makes sense that chazal tell us to make shehechiyanu on the first out of safeik that maybe that day is Y.T. and on the second because that may be the primary day of Y.T.

Tuesday, April 09, 2013

Eiruvin 32b - Sinning To Save Someone Else

The Gemara interprets the machlokes between Rebbi and his father R. Shimon Ben Gamliel to be whether one should violate a lower level sin, to prevent someone else from the violation of a more severe sin. The exact circumstance that the gemara talks about is whether a talmid chochom should violate the prohibition of separating Teruma and Ma'aser שלא מן המוקף (Rashi Gittin 30b implies it's only d'rabonon. Tosafos holds that for Teruma it is d'oraysa, but it is considered a lower level violation presumably because it doesn't prevent the Teruma from going into effect), or whether he should not separate which would cause the am ha'aretz to end up eating tevel. R. Shimon Ben Gamliel holds that a person must worry about himself, and not sin to protect others from a more severe violation. Rebbi holds that one should violate the less severe prohibition to prevent the am ha'aretz from eating tevel which is more severe. The Rambam (Ma'asros 10:10) paskens like Rebbi.
Tosafos raises an interesting question. The gemara says in Shabbos 4a that one should not commit a "minor" sin in order to prevent someone else from violation a "major" sin. The example given is that one should not remove bread from the wall of an oven violating the Rabbinic prohibition against רדיית הפת, to prevent the person who put the bread in the oven from violating the melacha of baking on shabbos. How then does Rebbi permit the violation of שלא מן המוקף to prevent the am ha'aretz from eating tevel? Tosafos answers that in Rebbi's case, the talmid chochom who permitted the am ha'aretz to take from his fruits was somewhat negligent in causing the am ha'aretz to violate this prohibition. When one is the cause of someone else's violation, they are better off violating a minor violation to prevent someone else from violating a more major violation. Tosafos continues to prove that in a case where the person who would be violating the more major violation was a complete o'nes and not negligent at all, then one should violate a minor prohibition to prevent that person from violating a more serious violation.
In short, the concept of not allowing one to sin to save someone else, only applies when the person who would be violating the more minor violation is in no way responsible for causing the other to violate the major violation AND the one violating the major violation is someone negligent as well. However, if either the one who would be violating the minor violation caused the other to violate the more serious violation (even though he himself was also negligent), OR the one violating the more major violation did nothing wrong and is a complete o'nes, in both those cases we say חטא בשביל שיזכה חבירך - sin to save your friend.
The Maharatz Chiyus asks a question from the opinion of the Aguda who is brought in the Taz Y.D. 334 who proves from a gemara in kiddushin 72a that Beis Din is required to put someone in cheirem even if it will cause him to go off the derech and completely reject Judaism. Why don't we say that beis din should ignore, violating a more minor prohibition, to save that person from complete rejection of Judaism which is obviously a more serious violation? It seems to me that the answer is simple. When it comes to a situation where one should be put in cheirem, ignoring it is not considered a minor violation. The Beis Din has the responsibility to prevent this individual from influencing others. By ignoring his actions they may be causing more harm to others who will learn from his actions than they would be causing to him by putting him in cheirem. Therefore, this case doesn't qualify as doing something minor to prevent someone else from violating something major.

Sunday, April 07, 2013

Eiruvin 32a - Does Eiruv Techumim Follow Rules As If It Were D'oraysa

The gemara 31b says a cheiresh, shoteh, and child cannot be used to establish an eiruv techumin. Rashi explains that to establish an eiruv techumin one has to be able to make an acquisition since the concept of eiruv techumin is to be ko'neh shevisa. Therefore, all those who cannot create kinyanim cannot be ko'neh shevisa. Tosafos disagrees and holds that eiruv techumin is like eiruv chatzeiros in the sense that no acquisition needs to be made. By simply having the food placed at that location with the intent of the owner to serve as an eiruv, it automatically goes into effect. The problem with the cheiresh, shoteh v'katan is simply that they don't have a sufficient level of trust to believe that it was done. The reason why we demand a higher level of trust for eiruv techumin than for eiruv chatzeiros is that eiruv techumin is based on an esmachta, raising its status to be similar to a d'oraysa.
The gemara on 32a has  discussion whether one can trust that a shliach fulfilled his commitment without him returning to verify that it was done. All agree that Eiruv Techumin which although an esmachta is only d'rabonon, therefore we can rely that the agent fulfilled his commitment, but on something which is d'oraysa (meaning that if it were not done, it would be a d'oraysa violation) we have a machlokes Rav Nachman and Rav Sheisheis whether or not we can trust that it was done. In the context of the gemara the gemara tries to prove from a case of separating ma'aser on figs which is only d'rabonon (not from the dagan, tirosh, v'yitzhar), implying that it is considered d'oraysa. Tosafos asks this question and explains that although it is not d'oraysa, it is treated like a d'oraysa in that we don't trust that the shliach fulfilled his commitment since it is "עיקרו דאורייתא" and sourced in the Torah.
Techumin is considered like a d'oraysa in the context of not trusting a child, but is considered a d'rabonon in the context of being able to rely on a shliach, yet, ma'aser on fruits which is only d'rabonon is considered a d'oraysa even for the purpose of trusting a shliach.