Wednesday, June 26, 2013

Pesachim 7a - Bracha of L'hachniso

The gemara says that the "lamed" implies that one is making a bracha on a mitzva that they are about to do, however, the language of "al" is a machlokes whether it has an implication of a mitzvah that one is about to do, or whether it is more applicable to a mitzvah that has already been done. Another implication that the gemara assumes is that if made with a "lamed" the implication is that the obligation is specifically on the person making the bracha more than anyone else, whereas the language of "al" is more appropriate when the person doing the mitzvah is not the person on who the primary obligation falls. When the gemara concludes that on biur chametz we make "al", the gemara is paskening like the opinion who says that "al" also implies a mitzvah that you are about to do. Rashi understands that the gemara also retracts from the second assumption and holds that even if the one making the bracha is the one who is has the primary obligation, he still makes "al". Rambam disagrees and maintains that when the father does the milah or someone shechts his own korban pesach, he makes la'mul and lishchot, not "al hamilah" and "al ha'shechita".
Based on these rules that a bracha made with a lamed is always done before the act, Tosafos cites the Rashba who says that the father of a child getting a bris should make the bracha of li'hachniso prior to the milah. Since li'hachniso is made with a lamed, it must be made before the bris. Furthermore, the gemara 7b says that all brachos should be made prior to doing the mitzvah. Rabbeinu Tam disagrees because the gemara in Shabbos implies that li'hachniso is made after the milah. Rabbeinu Tam explains that the nature of the bracha of l'hachniso is not a birchas hamtizvah on the mitzvah that is presently being done, rather it is a birchas ha'shvach to praise and thank Hashem, and its function is to show that the bris is being done li'shma, not for medical purposes or chas v'shalom avoda zara purposes.
Presumably, Rabbeinu Tam's approach explains why the bracha doesn't need to be made prior to the mitzvah both from the perspective of the language "li'hachniso" and from the perspective of all brachos need to be made prior to the mitzvah (כל הברכות מברך עליהן עובר לעשייתן). However, Tosafos adds that the reason it doesn't need to be made prior to the mitzvah is that the bracha is only made before when the one doing the mitzvah makes the bracha, but here since the father is not actually doing the bris, there is no halacha of כל הברכות מברך עובר לעשייתן.
The question is why Tosafos needs that addition. Once Tosafos establishes that this is not a birchas hamitzvah, it should follow that it doesn't need to be made prior to the mitzvah even if the one doing the mitzvah makes the bracha. Clearly, Tosafos holds that being a birchas ha'shevach and not a birchas hamitzvah only solves the language issue of using a lamed "li'hachniso", but doesn't address the issue of making brachos prior to the mitzvah because even birchas hashvach should be made prior to the mitzvah. However, the Maharsha points out that the Rosh uses the sevara of being a birchas hashevach to solve the problem of עובר לעשייתן also. Therefore, there is a machlokes Tosafos and Rosh whether birchas ha'shevach need to be prior to the mitzvah.
Tosafos proves that the bracha of li'hachniso can be made after since it is made by someone else from birchas eirusin that we make after since it is made by someone else. The Rambam (Ishus 3:23) holds that birchas eirusin is a standard birchas hamitzvah and is therefore made before the mitzvah is done. The Rambam writes that making the bracha after the kiddushin is a bracha l'vatala. The Ra'avad seems to agree that it is a birchas hamitzvah but says that it should be made afterward since there is a concern that they will not go through with it. Similarly, li'hachniso is made afterward since there is a concern that the mohel won't do the bris. The Ra'avad essentially says that same as Tosafos that when someone else is doing it you don't need to make the bracha before, except that the Ra'avad gives a practical reason for this that we are concerned that they will not go through with it.

Friday, June 21, 2013

Pesachim 2a - Bedika and Bitul

The Ran elaborates at the beginning of the Masechta to explain that on a Torah level either bedika (and destroying) OR bitul work to prevent the violation of בל יראה ובל ימצא. The fact that bitul works alone is explicit in the gemara 4b, the Ran assumes that just as bitul works alone so too bedika (and destroying) works alone. Although there is a girsa in the Rambam explained by the kesef mishna that implies that bitul may only work on chometz that one is not aware of and destroying is necessary for chometz that one is aware of, the Ran rejects this approach. Therefore, on a Torah level one only needs either bedika or bitul. Nonetheless, the Ran explains that the Rabbonon came along and insist that one do both bedika (and destorying) and bitul. The reason that bedika (and destroying) is not sufficient m'drabonon, the gemara 6b explains הבודק צריך שיבטל שמא ימצא גלוסקא יפה ודעתיה עלויה. Meaning that without bitul we are concerned that you may find a loaf of bread or cake and be lax from immediately destroying it, causing a violation of בל יראה. The gemara is clear that by being mevatel in addition to the bedika, one avoids this concern of גלוסקא יפה, because even if they don't destroy it immediately, their bitul remains in place and is effective even on this loaf. However, the gemara never explains the other direction. If one is mevatel, why is it also necessary to do bedika?
Tosafos explains that the Rabbonon were concerned that if one relied on bitul alone and maintained the chometz in their physical possession, they would inadvertently come to eat from the chometz. Although we don't find this concern by other form of issurei achila and not even by other forms of issurei hana'ah, Tosafos explains that chazal were extra strict by chometz either because one is accustomed to eating chometz all year, or because they modeled themselves after the Torah that aside from the issur ha'na'ah imposes a "harchaka" type issur to also forbid owning the chometz to even own (Rav Yosef Engel in Lekach Tov has a list of d'oraysa harchakos - this being one of them). The Ran adds that another reason to compel the Rabbonon to impose a concern that one will eat it, is because eating chometz is kareis which is more severe than other prohibition (Tzlach explains why Tosafos didn't consider this reason).
Furthermore, the Ran says that chazal imposed the requirement to search and destroy on top of the bitul to ensure that one means the bitul seriously. By taking action to support the bitul, it is clear that the bitul is no mere lip service but one really means what they are saying. The bedika essentially supports the bitul and makes sure that one is serious about it.
Another approach as to why Chazal imposed bedika even after bitul is cited by the Bartenura. He writes that we don't rely on bitul alone because there is a concern that one will find a nice loaf of bread and retract from his bitul. This approach if very difficult because it seems to be contradicted from the gemara. The gemara 6b implies that שמא ימצא גלוסקא יפה is only a concern when one does bedika without bitul, but bitul avoids this concern. According to the Bartenura, this is a concern when only doing bitul and is somehow avoided by the addition of bedika!
The Rashash and Chasam Sofer both offer approaches to explain the Bartenura. The Rashash writes that if one were to merely do bitul it would be very common to find a nice loaf and therefore there is a concern that after finding loaf after loaf, they will eventually retract from their bitul. By imposing bedika they reduced the chances of finding a גלוסקא יפה. Nevertheless, the gemara says that by just doing bedika we are still afraid that one will find a loaf and procrastinate before destroying it. Bitul helps to avoid the violation during that procrastination. The Chasam Sofer (chiddushim) explains that really the Bartenura agrees with Tosafos that if one just does bitul we are concerned they will find a loaf and want to eat it, just that Tosafos says that the concern is that they will actually eat it, and the Bartenura holds the concern is that the interest in eating it will in and of itself be a retraction of the bitul. By imposing bedika, the bitul itself is strengthened because it reminds a person not to be zocheh in the chometz and not to retract from the bitul. Yet, bedika alone isn't enough because one can then violate by finding a loaf even without intending to be zocheh in it, but by doing bitul they avoid that. According to the Bartenura, both bedika without bitul and bitul without bedika cause us to be concerned for שמא ימצא גלוסקא יפה, but doing both avoids the concern.

Wednesday, June 19, 2013

Eiruvin 104 - Making Noise on Shabbos

The gemara says that according to Ulah it is forbidden to knock on a door on Shabbos because it is a violation of making noise. Rabba argued and held that it is permitted because only when it is done for the purpose of song is it forbidden. Even according to Rabba, it is not only actual music which is a problem because the gemara indicates that even the sound of water drops at a consistent rhythm that would tend to put someone to sleep is forbidden according to everyone. Therefore, Rashi explains that anytime the sound is soft and consistent - כעין שיר בנעימה ובנחת, it is assur.
Tosafos quotes a machlokes between Rabbeinu Chananel and the Ri"f whether we pasken like Ulah that any sound is forbidden, or like Rabba that only with a rhythm and beat would it be assur. Shulchan Aruch (338:1) paskens like the more lenient opinion and therefore permits one to knock on a door for the purpose of gaining entry since it is not at all similar to a song. However, the definition of shir is open to include even very minor forms of song. The Shulchan Aruch (339:3) writes that it is forbidden to clap or bang or rattle a nut to quiet down a child because of a gezeria שמא יתקן כלי שיר. Even the consistent sound of a rattle would be included in shir. It seems that the type of sound that we don't consider to be a shir is when it's done for the purpose of getting attention, rather than for the enjoyment of the sound.
The Biur Halacha (338: d.h. aval) cites the Gr"a who holds based on the Yerushalmi like Rabbeinu Chananel who follows the opinion of Ulah and forbids any form of noise making. The Biur Halacha points out that even according to the Gr"a who would forbid one to knock on a door on shabbos, would permit it if it were done כלאחר יד. The Shulchan Aruch (339:3) writes that even when clapping for music would be permitted if done כלאחר יד, therefore even if we are going to be machmir with making any noise, it would at least be permitted if it were done כלאחר יד even though it is being done for the purpose of making noise. However, the Biur Halacha himself (339) questions this heter of כלאחר יד and limits it to specifically clapping, but would not allow other forms of rhythms even if done כלאחר יד. Therefore, it isn't so clear why he assumes that the Gr"a would permit knocking on a door when done כלאחר יד since the entire heter may only apply to clapping. Apparently, any form of noise that one produces through clapping or banging is included in the heter of כלאחר יד. Based on this, one who bangs on a table to create a beat, if done כלאחר יד would be permitted (according to the shulchan aruch, but obviously not according to the Gr"a).
The Rama introduces a new chumrah. Although when not done for music or a rhythm he agrees with the Shulchan Aruch that it's permitted, if it is being done through a kli that is designed to make noise, even not a rhythmic noise, it is forbidden. Based on this the Rama holds that it is forbidden to use a door knocker on shabbos. The Mishna Berura quotes from the Beis Yosef that the rationale is that when noise is made with a kli that is designated for that purpose we're concerned that maybe he will intend to make music. The Biur Halacha points out that the Rambam in the pirush hamishnah permits the use of door knockers, not like the Rama. The Rambam writes:
והקול הנשמע לגלגל בעת השאיבה אין אוסרים אותו, וכמו כן אין אוסרין להקיש בשלשלת הפתחים והדומה להם, אבל מה שהוא אסור מן הקולות אינו אלא מה שהוא כקול של שיר, כלומר שיהיה לו נעימות על הסדר, והוא אמרם לא אמרו אלא בקול של שיר בלבד
However, it is not clear to me that the Rambam is permitting door knockers that are made specifically for the purpose of noise. Perhaps he is only permitting the rattling of a chain that was fixed to the door for the purpose of locking the door. How does the Biur Halacha know that the Rambam means to even permit a kli that is designated for the purpose of making noise?

Tuesday, June 11, 2013

Eiruvin 96a - Women in Non Time-bound Mitzvos

The gemara tries to prove from the fact that Michal bas Shaul would wear tefillin that tefillin must me a mitzvah that is not bound by time, therefore women would be obligated. That would explain why the Rabbonon allowed her to wear tefillin and didn't protest. But, if tefillin was a time-bound mitzvah, the gemara assumes that chazal should have protested against Michal wearing tefillin.
Two things need to be explained in this assumption. The first is something that both Rashi and Tosafos struggle with. Why does the gemara assume that if it were a time bound mitzvah, chazal would protest against women wearing tefillin? Secondly, why does the gemara assume that if it were not a time bound mitzvah, everything makes sense. If it were not a time bound mitzvah, everyone would be obligated to wear tefillin, not just michal!
Regarding the first issue, Rashi writes that for women to do mitzvos that they are not obligated in is a violation of bal tosif. Rashi seems to mean that it is a d'rabonon violation of seeming like a bal tosif. However, to avoid Tosafos question as to how we find Hilni sitting in a Succah, the Gaon Yaakov explains that perhaps it is only a problem of bal tosif by mitzvos that are obviously being done only for the sake of the mitzvah, to the exclusion of succah which is not as recognizable that she's was doing it for the sake of the mitzvah (rather for the sake of being mechaneich her children to sit in a succah). Tosafos has another approach. Normally we encourage women to perform time bound mitzvos and according to Rabbeinu Tam even allow them to make a bracha on it. However, by the mitzvos that are particularly mentioned in our gemara - Tefillin, aliya l'regel, semicha and blowing shofar, there is a "risk" by each of them of some violation which causes chazal to discourage one who is not obligated from doing these mitzvos. By tefillin there is a risk of not maintaining a sufficiently clean body, by aliya l'regel there is an impression of bringing chulin l'azara, by semicha it is tantamount to avoda b'kodshim, and blowing shofar is an issur d'rabonon. 
The second issue is addressed by the Gaon Yaakov. Why does the gemara assume that if it were not a time bound mitzvah, everything makes sense. If it weren't a time bound mitzvah then all women would need to wear tefillin, not just michal? The Gaon Yaakov explains that Chazal understood that even if women were technically obligated in tefillin, Chazal were gozer on them not to wear tefillin due to the difficulty of maintaining a clean body. However, if m'doraysa women were obligated, it would make sense that some outstanding women such as Michal would make an effort to do it and it would not be discouraged by chazal. This seems to be the gemara's assumption. But, this still requires some more explanation. If women and men would be equally obligated in the mitzvah of tefillin, why would chazal exempt women from this mitzvah but mandate men to perform this mitzvah? Is their assumption that biologically it is somehow easier for men to maintain a clean body than it is for women or perhaps they felt that men would take it more seriously than women? Either way it doesn't seem that there would be a halachic difference between men and women, it would only be a practical difference.

Monday, June 10, 2013

Eiruvin 96a - Ba'al Tosif When Intending NOT To Fulfill The Mitzvah

The gemara suggests that according to Rav Meir it would be forbidden to put on two pair of tefillin on Shabbos even though one is not intending to fulfill a mitzvah and even though there is no mitzvah of tefillin on Shabbos, because R. Meir holds that one can be in violation of ba'al tosif even not in the time of the mitzvah, even without kavana to be yotzei. The gemara challenges this assumption - ועוד הישן בשמיני בסוכה ילקה. Meaning, if it is indeed true that one can be in violation of bal tosif even after the mitzvah is done, even without intending to fulfill the mitzvah, one should receive malkus for sleeping in the succah on the night of shemini atzeres (in eretz yisroel). It is not clear what source the gemara is asking this question from. Perhaps that is true that according to Rav Meir one would receive malkus for sleeping in a succah the night after succos? Rashi explains that the question of the gemara is coming from the minhag in chutz la'aretz to sleep in the succah on שמיני ספק שביעי, the night of shemini atzeres. How can we sleep in the succah on shemini atzeres night and not be concerned for violating bal tosif? Rashi explains that the answer must be that since we are only intending to fulfill the mitzvah of the tzad that it is still succos (and not yet shemini atzeres), the intent helps to avoid bal tosif. Therefore, according to Rashi, the gemara is saying that we cannot explain that according to Rav Meir one violates bal tosif after the time of the mitzvah, even without intent, because if that were true, we couldn't sleep in the succah on shemini atzeres.
In my sefer Nasiach B'chukecha (page 277) I asked a question on this sugya. Based on Tosafos in Succah 39a and other rishonim who hold that if one explicitly intends NOT to be yotzei, they are not yotzei, perhaps the reason we can sleep in the succah on the night of shemini atzeres is because our intent is that if it is not succos anymore we are intending NOT to be yotzei, thereby avoiding bal tosif. Meaning, even if assume that Rav Meir holds that not intending wouldn't help to avoid bal tosif, intending NOT to be yotzei should avoid bal tosif? The Gaon Yakov asks this question. He explains that even if we accept that according to the opinion that מצות א"צ כוונה, intending NOT to be yotzei would allow one to not be yotzei the mitzvah, it wouldn't help to avoid bal tosif. He doesn't explain why there should be a distinction. However, it seems that the distinction is simple. The rationale as to why one doesn't fulfill a mitzvah when they explicitly intend not to is that we can't force people to fulfill mitzvos. If you don't want to fulfill a mitzvah, you aren't in fulfillment of that mitzvah. This rationale only helps to avoid the fulfilling of a mitzva, but would not help to avoid the violation of bal tosif.
However, the Gaon Yakov limits this sevara to the opinion who holds that to violate bal tosif שלא בזמנו לא בעי כוונה. Since not having intent to be yotzei doesn't avoid bal tosif, intending NOT to be yotzei may also not avoid bal tosif. But according to the conclusion of the gemara in Rosh Hashana that לעבור שלא בזמנו בעי כוונה, one only violates after the z'man when they have kavana to be yotzei the mitzvah, having kavana not to be yotzei should work even within the time frame of the mitzvah. Therefore, the Gaon Yakov paskens l'halacha that even within the time of the mitzvah one can avoid bal tosif by intending NOT to be yotzei. However, the Magen Avrohom (34:3) and Gr"a hold that intending not to be yotzei doesn't help at all to avoid the violation of bal tosif.