Zevachim 8b - Difference between chatas and pesach

Both korban chatas and korban pesach are listed in the mishna as exceptions to the standard rule. The standard rule is that if shechita is done shelo lishma the connection from the owner is broken, but it remains a kasher korban. Whereas chatas and pesach that are shechted shelo lishma are entirely invalid korbanos. Chatas and pesach are essentially the same in that their essence is to work for the owner, if the connection to the owner is broken, the korban becomes completely worthless. It would seem that there is no difference at all between chatas and pesach.

However, the gemara on 3a says that a chatas that is shechted l'sheim chulin (having in mind that it has no kedusha at all), doesn't impact the korban in any way. The rationale, as the gemara explains is - דמינה מחריב בה, דלאו מינה לא מחריב. This means that in order to be considered "shelo lishma" it must be something within the same general category as the korban, namely another korban, to the exclusion of chulin which is so out of left field it doesn't even qualify as shelo lishma. It should follow that a korban pesach that is shechted l'sheim chulin also has no impact on the korban for the same reason. BUT the Rambam (pesulei hamukdashin 15:11) writes that a korban pesach that is shechted l'sheim chulin becomes invalid. Why is korban pesach any different that chatas in this respect? Why don't we say by korban pesach as well that דמינה מחריב בה, דלאו מינה לא מחריב?

The Meshech Chochma (bo, 12:27) refers to his Ohr Sameiach where he elaborates on this issue. R. Meir Simcha explains that the whole concept of "l'sheim chulin" only applies to the act of slaughtering which applies to chulin, but doesn't have any place by the kabala and zerika which don't at all apply to chulin. That explains why chulin kavana during shechita could invalidate. Now, most korbanos have one function - to do the avoda of the blood to serve Hashem. Therefore, chulin which has an entirely different function - to eat the meat, has no commonality with kodshim in their essential purpose. That is the rationale behind דלאו מינה לא מחריב - l'sheim chulin doesn't ruin it since it is fundamentally so different. However, korban pesach if very different than other korbanos. Korban Pesach is primarily for the purpose of eating. That is why it is eaten b'tumah, and it must be shechted for eaters... Since korban pesach is fundamentally for the purpose of eating, it isn't so different than chulin in that respect. That is why intent for chulin will ruin a korban pesach. Although chulin is considered לאו מינה of most korbanos, it is considered מינה of chulin.

Zevachim 7a - Types of shinuy kodesh and shinuy ba'alim

Rava makes a few statements in the gemara:

1. Chatas that is shechted for chatas even for a different aveira is kasher and works for the owner (rashi), but if it is shechted for o'lah it is entirely passul (rashi).

2. Chatas of Reuven that is shechted for Shimon, if he is obligated in a chatas it is passul, but if he is obligated in an o'lah it is kasher.

3. Chatas of Reuven that is shechted for Shimon who is not obligated in anything is passul because he is definitely at least chayev in an aseh. Rambam (pesulei hamukdashin 15:9) writes: maybe Shimon is actually obligated in that korban just doesn't remember.

The most obvious question is: If when we shecht Reuven's chatas for Shimon who is chayev an olah, it is kasher, but if Shimon isn't chayev anything it is passul (because it could apply to an aseh that shimon must have violated)? Rashi 7b explains that when it is shechted for Shimon who has no need for it, such as when Shimon has just designated a korban o'lah for all his aseh violations, it is kasher. But, if Shimon hasn't designated an o'lah it is needed by Shimon for his aseh violations and therefore would be invalid as a shinuy ba'alim.

In case #2 where Reuven's chatas is shechted for Shimon who is obligated in an o'lah, the gemara just says that it is kasher but doesn't make it clear whether or not it works for it's original owner. Rambam (pesulei hamukdashin 15:8) writes that it is kasher and doesn't work for the original owner. Minchas Chinuch (138) asks on the Rambam how he knows that if it is shechted for Shimon who is obligated in an o'lah, it would not work for Reuven? Since by a korban chatas the kashrus of it seems to go hand in hand with it working for the original owner, it would seem more logical that it should work for the owner since the shinuy of using it for Shimon's olah doesn't invalidate it?

The Rambam seems to understand that the rationale that only when Reuven's korban is brought for Shimon who is chayev in a korban "like him" will it be passul, to the exclusion of an o'lah, only helps to maintain the kashrus of the chatas but doesn't help to allow Reuven to fulfill his obligation. In order for Revuen to fulfill his obligation it MUST be brought for Reuven, not for Shimon, even when Shimon is only chayev an olah.

Zevachim 6a - Thought about O'lah atoning for aseh

The gemara discusses whether a korban o'lah can atone for a mitzvas aseh that was "violated" (or not kept) after designating the animal for the korban. The gemara justifies the rationale that it would work, even though by a chatas it wouldn't work, is that an o'lah can atone for many violations whereas a chatas can only atone for one (each aveirah violated would demand a separate korban chatas). Rashi explains that the Torah doesn't require an independent korban olah for each aseh that was violated because it is "only a gift".

It seems to me that Rashi can be better explained based on the Ramaban in the aseres hadibros who writes that a positive mitzvah is a method of representing "love" whereas the lo ta'aseh in the torah is essentially yir'ah - fear. The idea behind mitzvas aseh is that we get up and do something to demonstrate our love and devotion to Hashem. There is no specific consequence or punishment for not doing, because then the doing could be out of fear, and the entire point of these mitzvos is to provide us with a method of showing love for Hashem. Therefore, it follows that a chatas which comes for the violation of an aseh is in place of the punishment that one deserves for the violation. Each aveira deserves it's own punishment and therefore demands it's own korban chatas. But, the concept of a korban olah atoning for a positive mitzva is that it provides us with a method of "donating" a gift to Hashem, thereby grabbing the opportunity to express our love for Hashem that we missed by forfeiting the opportunity to fulfill the aseh. It is for this reason that one Olah can atone for many mitzvos aseh because it is not mitzva specific, rather it is a method of showing our love and devotion for Hashem for the one or many opportunities that we missed to express our love.

This point is supported from the gemara on 7b and rashi which explains that an o'lah can only be brought on an aseh after teshuva has been done and the person technically already received atonement. The entire function of the olah is to serve as a gift. Rashi expresses this in context of a parable of one who committed a crime against the king and already appeased him, when he comes to greet the king he brings along a gift.

Zevachim 5b - Lishma by Goat of Nassi

The gemara says that the passuk of "chatas hu" which is written in the context of the goat brought by a nassi, is the source that it must be shechted l'sheim chatas, otherwise it would invalidate the korban entirely.

The Meshech Chochma (Vayikra 4:22) questions, why specifically in the context of the goat of the nassi does the Torah decide to teach us the integral need for lishma by a korban chatas, rather than telling us this by a regular korban chatas? He explains based on a gemara in Sota 32b that the Torah tells us that a korban chatas should be slaughtered in the same place that the korban O'lah is shechted, so as not to embarrass one who brings a chatas by fooling bystanders into thinking he is actually bringing an o'lah. The gemara says that even though and o'lah is male, whereas chatas is female, it can be covered with the tail. If he chooses to bring a female goat, which has no tail to cover up the gender, that was his choice to embarrass himself, but wasn't compelled by the Torah. The Meshech Chochma suggests that it is for this reason that a Nassi brings a male goat, is to protect his honor so that people will be fooled into thinking that he is bringing an o'lah rather than a chatas. It would degrading for klal yisroel to publicize that a nassi did an aveira for which he has to bring a korban, so bringing a male goat is a method of limiting the chilul hashem. Therefore, one may have thought that the lishma on this korban should also be done l'sheim o'lah rather than l'sheim chatas so that everyone including the kohanim bringing it (and anyone listening according to those who say that lishma must be spoken out - see tosafos 4b, tosafos 2a and gilyon hashas). It is for this reason that the Torah writes "chatas hu" - it must be done l'sheim korban chatas and NOT l'sheim korban o'lah.

The fundamental point of the meshech chochma that a Nassi should hide the fact that he did an aveira and fool the bystanders into thinking he is bringing an olah rather than a chatas seems to me as being incompatible with the gemara in Horiyos 10b - אשר נשיא יחטא- אמר ר' יוחנן בן זכאי אשרי הדור שהנשיא שלו מביא קרבן על שגגתו, אם נשיא שלו מביא קרבן צריך אתה לומר מהו הדיוט, ואם על שגגתו מביא קרבן צריך אתה לומר מהו זדונו

The gemara indicates that when people see that even the Nassi is willing to admit his mistakes and bring a korban, they will be inspired to do teshuva. This seems to indicate that we want to publicize the fact that the Nassi is bringing a korban on his aveira, not hide it. The meshech chochma (4:31) himself acknowledges that for a regular person it is beneficial to embarrass himself by bringing a female goat and publicize that he did an aveira and that is why the Torah writes ריח ניחוח only in the context of a goat brought as a korban chatas, not a sheep. Only when he goes out of his way to embarrass himself over the aveira is his korban worthy of being a rei'ach ni'choach to Hashem. It is only by the Nassi that the Meshech Chochma suggests that it is beneficial to hide his aveira - but based on the gemara in Horiyos it seems that even a Nassi shouldn't hide his aveira.

Zevachim 2b - Stama Li'shma

The gemara makes a distinction between korbanos and gittin. In the context of kodshim we are willing to say that even if one didn't have explicit intent to slaughter the animal li'shma, we consider stam to also be li'shma. However, a woman who is not considered to be pending divorce (and even when she is forbidden to her husband, she can stay married just not have relations - tosafos), therefore stam is not considered li'shma.

To fully understand this concept, there is a basic chakira that opens up the sugya. Is there a requirement of li'shma, or is their a p'sul of it being done she'lo li'shma? If li'shma isn't a requirement, rather shelo lishma is a p'sul, it is obvious that stam would qualify as lishma simply because there is no demand of being lishma. However, if there is a positive requirement of li'shma, the only rationale to consider stam to be li'shma is that there is a subconscious intent of li'shma even though he was never cognisant of it - the intent that he would have had, if he was paying more attention qualifies as li'shma.

The Steipler proves that the approach of saying that there is a subconscious intent of lishma doesn't work because the gemara 3a says that if it is done for the sake of chulin, it is kasher - דלאו מינה לא מחריב בה. Meaning, that since chulin intent is so foreign we consider it as if there is no intent at all, so it defaults to being stam which we consider to be lishma. Clearly, when he is intending for chulin there is no subconscious intent for a korban, yet we apply stam lishma. This indicates that the reason why stam works is because there is no positive requirement of lishma, so long as it is not done she'lo lishma. According to this, it is difficult to understand why there is a difference between gittin where stam isn't lishma and kodshim where stam is lishma. If we assume that lishma isn't a requirement, why would there be a difference? One possibility is to fundamentally distinguish between gittin and kodshim. By gittin there is a positive requirement of lishma and therefore stam doesn't work, but by kodshim there isn't a positive requirement, therefore stam works. This doesn't seem to be the distinction of the gemara. The gemara says - זבחים בסתם לשמן עומדין, אשה בסתמא לאו לגירושין עומדין. The distinction seems to be between the case of kodshim vs. gittin, not a halachic distinction in what the requirement is. Therefore, we must say that both by gittin and by kodshim, there is no requirement for positive intent of lishma. What is the distinction? We consider stam to be completely parve, but the situation has to compensate for the lack of intent. Therefore, an animal of hekdesh that is pending being brought as a korban can fill the void of intent, but a woman who is not pending divorce can't fill the void of intent. According to this, the rationale for stam being lishma is that the situation can compensate for the lack of intent, just as we find by eating cheilev as a mis'aseik where the enjoyment fills the void left by the lack of intent.

The Steipler then questions the mechanics of shelo lishma. In order for the korban which is standing to be brought as a korban to fill the void of lishma, the void must be left empty (parve), but if it is filled with an explicit intent of shelo li'shma, the fact that it is pending to be a korban can't make up for the lack of lishma - in short, we require either lishma or it to be compensated for by the korban, so when it is done shelo lishma, the p'sul is that it is a lack of lishma. Or perhaps there is literally no din of lishma at all. The problem with shelo lishma is not that it undermines the lishma, or prevents the animal pending to be a korban from filling the void of intent. Rather, shelo lishma is an independent p'sul just as pigul is an independent p'sul unrelated to any positive demands. The Brisker Rav (Ma'aseh Korbanos 4) and his father Rav Chaim (quoted by steipler) assume the second possibility, that since we allow stam, we clearly don't require lishma. Therefore, shelo li'shma must be an independent p'sul, not a problem of lacking lishma.

The Steipler proves that both rashi and tosafos are against the Brisker Rav and Rav Chaim . Rashi 3a says that when one slaughters a chatas for a shelamim it is passul becasue - דמינה מחריב בה - דבר שהוא מינו מועיל בה לעקור את שמו. Rashi implies like the first approach that we do require lishma, just that normally when left parve, the fact that it's pending to be a korban can make up for the lack of intent. But when the lishma is totally undermined and ruined by a thought of shelo lishma, the korban is invalid. We also see this from Tosafos in menachos 42b who compares the just as a korban mincha that is done both lishma and shelo lishma is passul, so too when tzitzis is made lisheim tzitzis and shelo lishma it is passul. By tzitzis there is definitely a positive requirement of lishma, so if we assume that by korbanos there is no positive requirement of lishma just a p'sul of lo lishma, we can't prove that tzitzis is passul from korbanos since the positive requirement of lishma was fulfilled. Tosafos must hold that even by korbanos there is a positive requirement of lishma, which is being undermined when there is a thought of shelo lishma.

Zevachim 2b - Stama Li'shma

The gemara makes a distinction between korbanos and gittin. In the context of kodshim we are willing to say that even if one didn't have explicit intent to slaughter the animal li'shma, we consider stam to also be li'shma. However, a woman who is not considered to be pending divorce (and even when she is forbidden to her husband, she can stay married just not have relations - tosafos), therefore stam is not considered li'shma.

To fully understand this concept, there is a basic chakira that opens up the sugya. Is there a requirement of li'shma, or is their a p'sul of it being done she'lo li'shma? If li'shma isn't a requirement, rather shelo lishma is a p'sul, it is obvious that stam would qualify as lishma simply because there is no demand of being lishma. However, if there is a positive requirement of li'shma, the only rationale to consider stam to be li'shma is that there is a subconscious intent of li'shma even though he was never cognisant of it - the intent that he would have had, if he was paying more attention qualifies as li'shma.

The Steipler proves that the approach of saying that there is a subconscious intent of lishma doesn't work because the gemara 3a says that if it is done for the sake of chulin, it is kasher - דלאו מינה לא מחריב בה. Meaning, that since chulin intent is so foreign we consider it as if there is no intent at all, so it defaults to being stam which we consider to be lishma. Clearly, when he is intending for chulin there is no subconscious intent for a korban, yet we apply stam lishma. This indicates that the reason why stam works is because there is no positive requirement of lishma, so long as it is not done she'lo lishma. According to this, it is difficult to understand why there is a difference between gittin where stam isn't lishma and kodshim where stam is lishma. If we assume that lishma isn't a requirement, why would there be a difference? One possibility is to fundamentally distinguish between gittin and kodshim. By gittin there is a positive requirement of lishma and therefore stam doesn't work, but by kodshim there isn't a positive requirement, therefore stam works. This doesn't seem to be the distinction of the gemara. The gemara says - זבחים בסתם לשמן עומדין, אשה בסתמא לאו לגירושין עומדין. The distinction seems to be between the case of kodshim vs. gittin, not a halachic distinction in what the requirement is. Therefore, we must say that both by gittin and by kodshim, there is no requirement for positive intent of lishma. What is the distinction? We consider stam to be completely parve, but the situation has to compensate for the lack of intent. Therefore, an animal of hekdesh that is pending being brought as a korban can fill the void of intent, but a woman who is not pending divorce can't fill the void of intent. According to this, the rationale for stam being lishma is that the situation can compensate for the lack of intent, just as we find by eating cheilev as a mis'aseik where the enjoyment fills the void left by the lack of intent.

The Steipler then questions the mechanics of shelo lishma. In order for the korban which is standing to be brought as a korban to fill the void of lishma, the void must be left empty (parve), but if it is filled with an explicit intent of shelo li'shma, the fact that it is pending to be a korban can't make up for the lack of lishma - in short, we require either lishma or it to be compensated for by the korban, so when it is done shelo lishma, the p'sul is that it is a lack of lishma. Or perhaps there is literally no din of lishma at all. The problem with shelo lishma is not that it undermines the lishma, or prevents the animal pending to be a korban from filling the void of intent. Rather, shelo lishma is an independent p'sul just as pigul is an independent p'sul unrelated to any positive demands. The Brisker Rav (Ma'aseh Korbanos 4) and his father Rav Chaim (quoted by steipler) assume the second possibility, that since we allow stam, we clearly don't require lishma. Therefore, shelo li'shma must be an independent p'sul, not a problem of lacking lishma.

The Steipler proves that both rashi and tosafos are against the Brisker Rav and Rav Chaim . Rashi 3a says that when one slaughters a chatas for a shelamim it is passul becasue - דמינה מחריב בה - דבר שהוא מינו מועיל בה לעקור את שמו. Rashi implies like the first approach that we do require lishma, just that normally when left parve, the fact that it's pending to be a korban can make up for the lack of intent. But when the lishma is totally undermined and ruined by a thought of shelo lishma, the korban is invalid. We also see this from Tosafos in menachos 42b who compares the just as a korban mincha that is done both lishma and shelo lishma is passul, so too when tzitzis is made lisheim tzitzis and shelo lishma it is passul. By tzitzis there is definitely a positive requirement of lishma, so if we assume that by korbanos there is no positive requirement of lishma just a p'sul of lo lishma, we can't prove that tzitzis is passul from korbanos since the positive requirement of lishma was fulfilled. Tosafos must hold that even by korbanos there is a positive requirement of lishma, which is being undermined when there is a thought of shelo lishma.

Horiyos 13a - Chacham more important than King

The braisa quoted in the gemara says that a talmid chacham has precedence in being redeemed from captivity over a king because he is harder to replace. Anyone can be king (it is like being president). The mishna seems to concur because after the entire list of priority, it says that a chacham has precedence over even a kohein gadol. Of course it is possible that the mishna deliberately doesn't mention a king, it is difficult to say that the mishna would disagree with the braisa. This makes the Rambam in his commentary to the mishna very difficult to understand.

The Rambam writes:

וזה שטעם קדימת חכם למלך אינו אלא באמונה בלבד לפי שהחכם תועלתו לאומה גדולה מאוד, אבל במעשה אין להקדים על כבוד המלך שום דבר ואע"פ שהוא עם הארץ שנאמר שום תשים עליך מלך

The Rambam somehow manages to consider the priority of a Torah scholar over a king to be merely theoretical, but claims that in practice a king would still have priority. What does the Rambam mean by this and how does he explain the fact that the braisa lists the priority of a chacham over a king in an actual situation of redemption from captivity?

Although I don't have a full understanding of how the Rambam can do this, it seems to me that the peshat in the Rambam is that he understands that the list of the mishna and braisa is a list of who is more important and/or more essential. Most of the time the more important/essential person should be saved before the other. However, when it comes to a king there is a specific obligation of שום תשים עליך מלך- שתהא אימתו עליך, to show fear and awe for the king. Although the king may be less essential, there is a specific obligation that would demand of every Jew to prioritize the king even at the expense of the more important Torah scholar. Therefore, when faced with a situation the Rambam holds that the king must be prioritized and this idea of the chacham being more important is "only b'emuna" - only in assessing his objective value, but not in practice.

Horiyos 13a - Order of Kadima

This post sounds a bit chauvinistic but my point is simply to clarify the halacha and understand the Rambam.

The mishna says that a man comes before a woman for להחיות ולהשב אבדה, but a woman comes before a man for clothing and redeeming from captivity. However, if there is a threat of being sodomized, the man would come first.

The gemara itself doesn't offer any rationale to explain the order of the Mishna. However, the Rambam in the pirush hamishna explains that men are obligated in all mitzvos whereas women are only obligated in some of them, therefore a man is more "mekudash" than a woman which gives him precedence להחיות. The Shach (Y.D. 251:11) explains that the definition of להחיות is to save them from a life threatening situation, not about tzedaka because that is included in "clothing" where a woman goes first since her embarrassment is greater. This definition is also meduyak in Rashi who says that a kohen gadol who is anointed for war comes before a s'gan for the purpose of להחיות because he is more essential to the Jewish people. Rashi seems to understand that להחיות is speaking about saving them from a life threatening situation and we prioritize the one who is more essential for the klal.

The difficulty is the end of the Mishna that says if both a man and woman are threatened with sexual assault, the man comes first. The Rambam in his commentary to the mishna writes it is because a homosexual assault to the man is worse than a sexual assault to the woman since it is a דבר שאינו טבע לו - against the nature. The Rashash asks, why does the Rambam have to provide a new reason as to why the man should take priority over the woman - even if all things were equal the man would still come before the woman since he is more me'kudash? Perhaps the Rambam understands that kedusha is only a rationale to give precedence to a man when his life is threatened (and certainly his property - hashavas aveida). The point is that the one who has more kedusha should be given the precedence of survival, but in a situation where they are being threatened sexually and survival is not a question, the kedusha difference isn't significant.

Another question is that R. Moshe Feinstein writes in a teshuva (O.C. ?:49) that the kedusha of men is not greater than that of women. Rav Moshe supports this from the fact that all the pesukim that deal with kedusha treat both men and women equally. Even in the bracha of אשר קדשנו במצותיו women make it with the same nusach as men. Rav Moshe continues that any difference in obligation is just because that is the way Hashem wanted it, but is not reflective of a superiority of men over women. The difficulty is that the Rambam seems to say otherwise! Furthermore, the context of the mishnayos is that כל המקודש מחבירו קודם את חבירו which is learned from a kohen who has first priority due to his kedusha, and then discusses a man coming before a woman. The context of the mishna compels the peshat of the Rambam that men have greater kedusha since they are obligated in more mitzvos. How does R. Moshe ignore this?

On another note, the Ya'avetz (quotes in pischei teshuva y.d. 252:7) raises an interesting question. What would be if the threat is not physical but rather spiritual. The community has a choice to redeem either a boy or a girl, but not both. He suggests that perhaps we should save the girl since it won't just be saving her, but it would be saving generations of Jews since her children will be Jewish, whereas saving the boy would only by saving him. However, the Ya'avetz concludes that since the precedence is given to the boy for physical danger, it should certainly be given to him for spiritual danger and we pay no attention to the fact that the girl will have Jewish children.

Horiyos 12a - Aron Was Hidden

The gemara says that Yoshiyahu hid the Aron (and the other items i.e. tzintzenes ha'man, shemen ha'mishcha...) because he understood from th Torah that the Jews were going to go into galus. This is learned from the pasuk in divrei hayamim from the pasuk - תנו את ארון הקדש בבית אשר בנה שלמה בן דוד מלך ישראל. The Rambam (Hil. Beis HaBechira 4:1) writes - ובעת שבנה שלמה את הבית וידע שסופו ליחרב בנה בו מקום לגנוז בו הארון למטה במטמוניות עמוקות ועקלקלות ויאשיה המלך צוה וגנזו במקום שבנה שלמה

There was a stone in the kodesh hakadashim on which the Aron was placed. At the time Shlomo built the beis hamikdash he understood that it was going to be destroyed and therefore built into the structure a place to hide the Aron. It was Yoshiyahu who realized that it was time to follow through on Shlomo HaMelech's initial plan and to hide the Aron. The Rambam cites the pasuk from our gemara. The Tosafos HaRosh (on the side of the gemara) explains that the Aron was already in the mikdash. Why did Yoshiyahu have to say that it should be placed in the bayis? Secondly, why does the pasuk reference Shlomo HaMelech? Clearly, the pasuk is indicating that Shlomo HaMelech initially understood that there would need to be a hiding place built underground in the beish hamikdash where the Aron can be hidden.

The Tosafos HaRosh continues, perhaps the pasuk in Melachim (1:8:21) which says - ואשים שם מקום לארון, refers to this hiding place. Shlomo designed a place for the Aron to be hidden and it was only revealed to very few of the kohanim and leviyim which is why Yoshiyahu spoke - ללוים המבינים לכל ישראל הקדושים להשם which means he told those who had a tradition about where this place was to hide the Aron in that place.

The Meshech Chochma (haftorah on pekudei) suggests that the pasuk of ואשים שם מקום לארון is not a reference to the hiding place, rather it is a sanctification of the place where the Aron stood in the kodesh hakadashim to give it the same kedusha as the Aron itself. He references the Rambam that Shlomo HaMelech understood that at some time in history the Aron will not be in it's proper place, so he sanctified the place of the Aron so that the sprinkling of the blood and burning of spices can be done on Yom Kippur even in the absence of the Aron, as if the Aron was still there. The Meshech Chochma at the end seems to agree with the Tosafos HaRosh (without quoting him). The reference to the "place of the Aron" is actually the hiding place that was designated for the Aron right beneath the kodesh hakadashim so that even when the Aron is in hiding, it is still במקומו - in it's place, to allow the avoda on YK to be done.

The Brisker Rav (letters printed in the back of the sefer pg. 81) was asked about the halacha that in the absence of the inner miz'beiach they were able to burn ketores (incense) in the place where it stood (zevachim 59). The Brisker Rav writes that the place of the mizbeiach had the same kedusha status as the mizbeiach itself, just as the meshech chochma suggests about the Aron. I once heard a fabulous shiur from Rav Nota Greenblatt from Memphis (given in our beis midrash) where he disagreed with the Brisker Rav and proved that that the halacha of ketores is not on the mizbeiach, rather on the makom mizbeiach. Meaning, it wasn't necessary to give the place of the mizbeiach the kedusha status of the mizbeiach because the halacha of ketores was on the place, not on the mizbeiach.

According to the approach of Rav Nota that the ketores doesn't require a mizbeiach so there is no need to say that the makom of the mizbeiach had the kedusha of the mizbeiach, there is a difference between the mizbeiach and the Aron. The halacha of burning ketores and sprinkling on YK in front of the Aron is that when the Aron is hidden underneath the ground, kedusha still emanates from it to sanctify the place where it stood as if it were there. This is very meduyak in the mishna Yoma 53a. The mishna refers to the Aron and to a Paroches. The gemara asks that the two never coexisted. In the first mikdash there was a wall and no paroches. In the second mikdash there was no Aron. The gemara concludes that it is referring to the second mikdash, so when it says "Aron" it means "makom Aron", and when it says "Bein Habadim" (between the poles) it means as if it were between the poles. Since the halacha of burning the ketores and sprinkling require kedushas ha'aron, the mishna talks as if the Aron was still there even in its absence because the kedushas ha'aron was still there.

After discussing this with R. Nota again (11/21/10) he pointed out that the gemara in menachos 27b explicitly says that the ability to burn ketores and do haza'os in the second beis hamikdash was a result of the kedushas hamakom of the aron. The only question would be whether this would require the aron to be hidden in the place that Shlomo designated for it, or whether the makom had kedusha even if the aron would be in the hands of the pelishtim. The simple reading of the gemara implies that it is simply a din in kedushas makom of the aron even without an aron.

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M'inyan L'inyan here is the summary of the shiur:

The Torah never refers to the mizbeiach inside as the מזבח הפנימי (that is loshon chazal), rather it is called the מזבח הקטרת (burning spices was everyday whereas the sprinkling dam ha'par was once a year). BUT after Betzalel makes it (Parshas Pekudei by revi'i), and places it in its place it is called מזבח הזהב. Why is it not called מזבח הקטרת in that one place?

In Parshas Vayikra (by par kohein moshiach) the Torah returns to call it מזבח קטרת הסמים. The Mishna in Menachos 49 says that only ketores works to be me'chaneich the mizbeiach, not with sprinkling the dam of the cow. In Parshas Vayikra regarding the sprinkling the dam of the cow on the mizbeiach, the Torah says it should be sprinkled על קרנות מזבח הסמים אשר לפני השם באוהל מועד. The gemara in Zevachim 40 asks why does the Torah have to say על קרנות מזבח הסמים since it already identifies the inner mizbeiach and not the outer by saying אשר לפני השם? The gemara answers that the sprinkling can only be done on the mizbeiach after it is nis'chaneich through the ketores as the mishna says in menachos. Meaning, the pasuk writing "mizbeiach ha'samim" is not to identify the mizbeiach, rather to tell you that ketores must be done first to sanctify the mizbeiach. The mizbeiach isn't essential for the burning of ketores as we see in zevachim that the ketores can be burned in the makom of the mizbeiach even in it's absence. Why is it called mizbeiach haketores? R. Nota explains that it is called mizbeiach haketores because that is the only way to be me'chaneich and sanctify the mizbeiach. Therefore, after the mizbeiach is made by Betzalel, before it was used, the Torah in Pekudei calls it מזבח הזהב because until it was nis'chaneich through ketores it couldn't be called the מזבח הקטרת. Only after the mizbeiach was nis'chaneich through the ketores could it be called again in Vayikra מזבח הקטרת.

The Brisker Rav held that the halacha of burning ketores in the absence of the mizbeiach is because the place itself had kedushas mizbeiach. The Meshech Chochma (Pikudei on the pasuk of mizbeiach) goes one step beyond the Brisker Rav. He agrees that the the halacha of burning ketores in the absence of the mizbeiach is because the makom itself has the kedushas mizbeiach. He continues by saying the din that when the mizbeiach is missing the ketores can be brought in the makom, only applies in the beis hamikdash but not the mishkan because in the mishkan there was no kedusha to the place of the mizbeiach. Now, if the Meshech Chochma is correct, the mizbeiach in the mishkan was actually essential for the ketores and that is the more obvious reason for it to be called mizbeiach ha'ketores (not necessarily because of chinuch). According to the Meshech Chochma the question would come back - Why would the Torah call it in parshas pekudei מזבח הזהב and not mizbeiach ha'ketores since the ketores is essential for it.

Rav Nota argues that the Brisker Rav and Meshech Chochma are wrong in assuming that you need a mizbeiach for ketores just that the place of the mizbeiach has status of mizbeiach (which allows the meshech chochma to differentiate between the mikdash and mishkan). He argues that the torah describes the halacha of ketores in Parsha Ki Tisa to be ונתת ממנו לפני העדות באוהל מועד, implying that you don't need any mizbeiach at all for ketores, so long as its burned in front of the Aron. Therefore even in the mishkan the din is true that you can bring ketores even in the absence of the mizbeiach so long as the ketores is being burned לפני השם - in front of the Aron. According to this approach, the inner mizbeiach is not called מזבח הקטרת because it is essential for ketores, it is not essential even in the mishkan. It is only called מזבח הקטרת because that is what is necessary to be mechaneich the mizbeiach. Therefore, it makes perfect sense that in one place in the Torah (Parshas Pekudei), after the mizbeiach was constructed but before it was sanctified through ketores that it is called the מזבח הזהב.

Horiyos 10b - Eating Korban Pesach B'achila Gasa

The gemara initially suggests that the case of ופושעים יכשלו בם is a person who eats the korban pesach לשם אכילה גסה. Depending on how we interpret the phrase "l'sheim achila gassa", the pertinent sugya will either be a lishmah/kavana issue, or will be a issue related to the appetite that is appropriate for eating kodshim. I raised this gemara in my sefer nasiach b'chukecha (pg. 178) and in the hashmatos to pg. 136 as it relates to the כוונה-לשמה issue. And in the hashmatos to pg. 93 how it relates to hiddur mitzvah and eating l'teiavon).

Basically, Rashi understands that the issue is a kavana issue. The idea of eating it achila gassa is to the exclusion of eating it l'sheim mitzvah. According to this approach the issue at hand is a lack of intent for the mitzvah, thereby leading the turei even to ask a contradiction in reish lakish. Why would reish lakish consider this a case of not fulfilling the mitzah in it's ideal state, yet fulfilling the fundamental mitzvah - Reish lakish holds that mitzvos require kavana and without intent he wouldn't be fulfilling any mitzvah at all. This question is addressed by the Beis Halevi (3:51:3). It seems that the language of the gemara לשם אכילה גסה rather than saying אכילה גסה is what compels rashi to explain the problem to be his intent rather than his action.

However, the Tosafos HaRosh argues on Rashi by asking that if the problem was merely his intent, then the gemara should say that he ate it שלא לשם מצוה and not focus on the achila gasa aspect? Therefore the Tosafos HaRosh explains that the issue was not what he was thinking but rather what he did. Generally one should be eating kodshim when he is not starving to fulfill the concept of למשחה כדרך שהמלכים אוכלים. It is more respectful for kodshim to be eaten when one is not starving, but one should also be eating it while he still has a desire for food. Eating kodshim when he is already full - לשם אכילה גסה is not an ideal way to fulfill the mitzvah. The Rashash on his own takes a similar approach to the gemara. See also the Maharatz Chiyus who explains exactly the opposite approach, that he should have eaten in while not starving, but he violated the ideal mitzvah by eating it while starving to break his starvation (this approach is very difficult to fit into the language of לשם אכילה גסה).

From the Tosafos HaRosh we learn a fascinating point regarding hidur mitzvah. The more one has a desire to do the mitzvah, even if the desire is motivated by physical desires (i.e. being hungry), and not by the fulfillment of the mitzvah, it would still qualify as hidur mitzvah. Therefore, one who eats kodshim after he is totally full and has no desire to eat any more and is only eating to fulfill the mitzvah, is not fulfilling hidur mitzvah.

Horiyos 6a - Safeik D'oraysa

The gemara is trying to figure out the status of a chatas that belongs to the tzibur when one or all of the members dies, whether it has a status of חטאת שמתו בעליה that must be killed. The gemara tries to prove that this concept doesn't apply to a korban of the public from goat that is sacrificed on Rosh Chodesh as a korban chatas from the money that was collected at the beginning of the year. The fact that we aren't concerned that one of the contributors died thereby rendering the korban invalid, indicates that we don't apply this concept to a communal korban. The gemara rejects this proof because by the Rosh Chodesh korban we aren't sure that someone died, but in the case we are dealing with (sacrificing a chatas for the generation of tzidkiyahu) we know that they have died. Meaning, that when we are in doubt we can bring the korban, but when we know for sure that a partner in this korban died, we can't bring it.

The Mi'lo HaRo'im asks, if when we would know that someone died it would invalidate the korban, now that there is a safeik that perhaps someone died, the korban should also not be brought because it is a safeik of bringing and invalid korban into the beis hamidash - why don't we invalidate the korban of Rosh Chodesh based on safeik d'oraysa l'chumra? The Mi'lo HaRoim answers this question by saying that we can use a chazaka that the contributors are still alive. But, he immediately asks that the chazaka only applies when there is a possibility that the contributors are alive, but by the time you are most of the way through the year, there have DEFINITELY been people who died?

Tosafos HaRosh asks this very question. Every single Jew contributed toward the korban, by the time the month of Adar rolls around there is no question that one of the contributors had died - how can this korban be brought? Tosafos HaRosh answers that although some people have definitely died, we aren't sure that this money that is being used for the rosh chodesh korban is from one of the contributors who died. Since there is a possibility that the money we are using for this korban is from people who are still alive, the korban can be brought. Why can we assume that? Because there is a chazaka that the contributor of this money that is being used is still alive, therefore using the chazaka that all contributors to this korban are still alive, the korban can be sacrificed.

Another possible approach that the Mi'lo HaRo'im rejects is that according to the Rambam that safeik is l'kula on a Torah level, one can be lenient that the contributors are still alive and sacrifice the korban. He rejects this because the Rabbonon are stringent about a safeik d'oraysa so they shouldn't have allowed the korban to be brought. The Mitzpeh Eisan on the other hand does consider this a valid approach. Perhaps the Rabbonon weren't machmir in this situation since it would prevent the ability to sacrifice the goat of Rosh Chodesh. He suggests that even according to those who are machmir for a safeik d'oraysa, that would only be for a d'oraysa prohibition that is explicit in the Torah but not for something like חטאת שמתו בעליה which is just a halacha l'moshe misinai to invalidate the korban - all would agree that safeik on halacha l'moshe mi'sinai is l'kula.

Horiyos 6a - Safeik D'oraysa

The gemara is trying to figure out the status of a chatas that belongs to the tzibur when one or all of the members dies, whether it has a status of חטאת שמתו בעליה that must be killed. The gemara tries to prove that this concept doesn't apply to a korban of the public from goat that is sacrificed on Rosh Chodesh as a korban chatas from the money that was collected at the beginning of the year. The fact that we aren't concerned that one of the contributors died thereby rendering the korban invalid, indicates that we don't apply this concept to a communal korban. The gemara rejects this proof because by the Rosh Chodesh korban we aren't sure that someone died, but in the case we are dealing with (sacrificing a chatas for the generation of tzidkiyahu) we know that they have died. Meaning, that when we are in doubt we can bring the korban, but when we know for sure that a partner in this korban died, we can't bring it.

The Mi'lo HaRo'im asks, if when we would know that someone died it would invalidate the korban, now that there is a safeik that perhaps someone died, the korban should also not be brought because it is a safeik of bringing and invalid korban into the beis hamidash - why don't we invalidate the korban of Rosh Chodesh based on safeik d'oraysa l'chumra? The Mi'lo HaRoim answers this question by saying that we can use a chazaka that the contributors are still alive. But, he immediately asks that the chazaka only applies when there is a possibility that the contributors are alive, but by the time you are most of the way through the year, there have DEFINITELY been people who died?

Tosafos HaRosh asks this very question. Every single Jew contributed toward the korban, by the time the month of Adar rolls around there is no question that one of the contributors had died - how can this korban be brought? Tosafos HaRosh answers that although some people have definitely died, we aren't sure that this money that is being used for the rosh chodesh korban is from one of the contributors who died. Since there is a possibility that the money we are using for this korban is from people who are still alive, the korban can be brought. Why can we assume that? Because there is a chazaka that the contributor of this money that is being used is still alive, therefore using the chazaka that all contributors to this korban are still alive, the korban can be sacrificed.

Another possible approach that the Mi'lo HaRo'im rejects is that according to the Rambam that safeik is l'kula on a Torah level, one can be lenient that the contributors are still alive and sacrifice the korban. He rejects this because the Rabbonon are stringent about a safeik d'oraysa so they shouldn't have allowed the korban to be brought. The Mitzpeh Eisan on the other hand does consider this a valid approach. Perhaps the Rabbonon weren't machmir in this situation since it would prevent the ability to sacrifice the goat of Rosh Chodesh. He suggests that even according to those who are machmir for a safeik d'oraysa, that would only be for a d'oraysa prohibition that is explicit in the Torah but not for something like חטאת שמתו בעליה which is just a halacha l'moshe misinai to invalidate the korban - all would agree that safeik on halacha l'moshe mi'sinai is l'kula.

Horyios 4b - Is there place for compassion in din?

The mishna asys that a ger, mamzer and a zakein who is not fit for children is passul to be on the Sanhedrin. Rashi comments that he doesn't understand why an elderly person who is unfit for children would be unfit to pasken. R. Akiva eiger in the gilyon ha'shas points to rashi in sanhederin 36b who says that an elderly person has already forgotten the pain of raising children and is considered an "achzar" - mean. Why does Rashi not say the same peshat here? The Miloh HaRo'im suggests that in sanhedrin where we are speaking in context of capital punishment the requirement to be compassionate is understandable, but Rashi doesn't understand why that would be important in this context. However, he suggests that since this person is unfit to judge capital cases, he is unfit to be on the Sanhedrin and a p'sak that is authorized by him would not have status of a sanhedrin ha'gadol.

The Rambam in his commentary on mishna seems to have a slightly different girsa than Rashi in the mishna. Rather that the girsa of זקן שאין ראוי לבנים, the Rambam seems to have been goreis זקן שלא ראה בנים. Rashi seems to hold that even if he has children, since he is now elderly he has already forgotten what it is like to raise children. But the Rambam explains that an elderly person who never had children will have a tendency to be an "achzari" and not be compassionate because he doesn't understand the love for children. See Rashash for some discrepancies between the Rambam in the pirush hamishna and the rambam in the yad.

Both Rashi and the Rambam agree that the dayan must be trained in compassion, and one who never had children or is elderly and forgot about the care for children, will not be able to exhibit the necessary compassion. This approach seems contradictory to the concept that we find in the mishna Kesubos 84a - אין מרחמין בדין (see also tosafos baba basra 3a who asks this on rashi). Although there is a concept of והצילו העדה and the judge is obligated to be look for zechus, that is all within the confines of din. A judge is not allowed to show compassion that goes beyond the din. Why then is there a requirement to have children so that he will be trained in being compassionate?

We learn from here a very important concept. The judge is obligated to judge using din and not any form of compassion. However, human nature is such that it is impossible for a compassionate person to use din without subconsciously looking at the issue through eyes of compassion. The Torah is not given to robots. A compassionate person by nature will not rest until he explores every possibility of exonerating the person using din. The conscious decision of the judge should be din, but the judge should subconsciously be using compassion to decide the din.

Horiyos 2b - Da'as Torah and Listening to the Rabbis

For an Audio shiur on this topic - Click HERE for stream link, and HERE for download.

Rashi on the pasuk of לא תסור מן הדבר אשר יגידו לך ימין ושמאל quotes the famous sifri that even if the Rabbis tell you that the right is the left and left is the right you are required to listen. The implication is that even if the sanhedrin would be matir something that you know is assur, you should listen to them. This concept seems to be supported by the story between R. Gamliel and R. Yehoshua in the mishna in Rosh Hashana regarding the calculation of Yom Kippur, where R. Yehoshua was required to violate Y.K. This seems to contradict the gemara which says that when a talmid knows that the beis din is making a mistake yet follows their ruling to eat cheilev, it would constitute an intentional violation. The case of the mishna which says that you would bring a korban for shogeig would only apply if the talmid thought that this was included in the mitzvah to listen to the chachamim. The gemara is clearly saying that those who follow the leniency of the beis din even though they know it is wrong but are making a mistake in thinking that one is supposed to follow the chachamim even when they are wrong, brings a korban for this violation. The gemara holds that one cannot follow the Rabbis when they tell you the left is the right!?

The Maharatz Chiyus points to the Ramban in sefer hamitzvos who says that a person who thinks the sanhedrin is making a mistake because they don't have the information that he has, or because they forgot a din, is not allowed to blindly follow their pesak. Rather, he is obligated to discuss it with them and make them aware of the information that he has. Only after he discusses it with them and they refute his points do we completely reject his opinion to the point where he should follow them even if in his opinion they are still making a mistake. The Rashash also makes this point. R. Elchonon Wasserman (kunteros divrei sofrim 4:9) explains that the Ramban holds that when sanhedrin issues a "hora'ah", one is required to listen even if their judgement is faulty. But if they are making a mistake due to inaccurate information so that their pesak is a ta'os (mistake) rather than a hora'ah, one should not listen to them.

R. Elchonon (13) offers another approach to answer the question between our gemara and the sifri. Perhaps the sifri entitles chachamim to authorize a pesak that is against the torah - אפילו על ימין שהוא שמאל, but only if they make it clear that this is their takana and not the din torah. This would be as the Rambam writes in hilchos mamrim that the chachamim can forbid chicken and milk so long as they don't claim that it's from the torah itself. But, if the chachamim are making a mistake, there is no concept of "da'as torah" to follow their mistake. R. Elchonon suggests that this d'rasha of the sifri may be the source for the opinion יש כח ביד חכמים לעקור דבר מן התורה.

Clearly, one would not have to follow the p'sak of a Rav who they know is making a mistake because he is basing his p'sak in a medical or scientific related shayla on inaccurate facts or is not aware of an integral source in halacha. However, people who have a tendency to reject "da'as torah" because they feel that they know the science better, are often missing the torah knowledge to pasken appropriately. B'kitzur, without a good knowledge of both the facts (or science) AND the Torah, the p'sak wouldn't qualify as a "ho'ra'ah", but as a "ta'os", and it would be forbidden to follow it.

Avoda Zara 76a - Absorbing Heter

Rav Ashi concludes that the distinction between bbq grills that were used for non-kosher food which require libun (our mishna), and those used for kodshim which require only hag'ola (boiling), is the status of the item when it was initially absorbed into the grill. Items that have status of issur at the time they are absorbed require libun to kasher, but items such as kodshim which have status of heter when they are absorbed, can be kashered through hag'ola. Even the inital challenge to this approach by Rabba - סוף סוף כל קא פליט איסורא קא פליט, that at the time of kashering it had already become assur and should require libun, doesn't fundamentally undermine the chiddush of Rav Ashi. Meaning, Rabba would agree that if the hag'ola is done to the kodshim prior to becoming assur as we find in R. Nachman's idea כל יום ויום נעשה גיעול לחבירו, he would agree to Rav Ashi. The problem is that the hag'ola is only being done after the absorbed issur becomes נותר. Based on this, if the issur is being kashered prior to becoming assur, everyone would agree that hag'ola can be used to extract the issur even though it absorbed over the fire (in a method that would ordinarily require libun). Based on this, it is clear that if one would need to kasher a grill that was used for meat in order to use it for milk, they can kasher through hag'ola even according to those who disagree with R. Ashi since at the time of kashering it is still he'teira. However, if one had a grill on which he grilled steak and then 24hrs later grilled dairy on the same grill, Rav Ashi would still hold that it can be kashered through hag'ola. The rationale is that since at the time the meat and the dairy became absorbed into the grill, it was התירא בלע it is sufficient to use hag'ola to kasher, even though now it is a combination of meat and milk flavor that is absorbed in the grill. But, if one would have grilled dairy within 24 hrs of grilling meat, the dairy would not qualify as התירא בלע because the taste of the meat will mix with the dairy and become absorbed as a combination of meat and milk - איסורא בלע. In that case all would agree that libun is necessary.

Avoda Zara 75b - My Keurig Coffee Maker

The idea of having keilim that are difficult and sometimes impossible to tovel is not a new phenomenon. The Chochmas Adam (73:13) discusses very large vats that were used for beer and explains that they do require tevila. He dispels the notion of being attached to the ground and no longer a keli. He elaborates in the Binas Adam (66) about the concept of כל המחובר לקרקע כקרקע and why it doesn't apply here - since it was turned into a keli prior to being fixed into the ground. Since it is not possible to tovel them, he suggests making a very large hole rendering them unfit and having a Jew fix it. At the end he then retracts since the beer that is stored in them is unfiltered and is not fit to drink, and with this justifies the custom of not being tovel these vats. But in the Binas Adam he is reluctant to rely on this heter because it should be no better than a shechita knife which is still fit to use for other foods that are eatable.

Regarding equipment that is plugged into the wall, some want to be matir without tevila based on the concept of being attached to the ground and losing the status of a keli. The chochmas adam would seem to reject this idea even if it were actually fixed to the ground. But perhaps one can argue that a keli that is functional prior to being attached to the ground, will not lose its status of a keli by being attached. Yet, an electrical keli that is not at all functional until it is plugged in, will have a status of a keli that is קבעו ולבסוף חקקו and therefore not require tevila. Obviously, this sevara is a difficult one because the keli doesn't need to be attached to the ground to work, it only needs to be attached to electricity which is often attached to the ground, but can technically be attached to a battery as well - therefore even when attached to the ground may not lose it's status of being a keli.

I am a big proponent of toveling electrical appliances. I have done so many times and so long as they are properly dried before plugging in, don't present any problem at all. However, last year someone gave me a Keurig Coffee maker as a gift. This coffee maker is not just a plug in appliance but actually has an electronic circuit board and display screen. Toveling it would be tantamount to toveling a laptop - even a drop of remaining water on the inner board can short circuit the entire machine (and then even costco wouldn't take it back). It isn't clear that a keli that would be ruined by tevila is exempt from tevila. It is very possible that such a keli cannot be used. A friend of mine showed me a pesak from R. Dovid Feinstein in 1973 where he wrote that for something that would get ruined one can rely on a sevara that it contributes very minimally to the food such as a toaster which just browns the bread - see l'torah v'hora'ah here. But, this sevara wouldn't apply to our situation.

At first I thought that it should be permitted since the entire machine is plastic which doesn't require tevila. But, I called the company and found out that the element inside the machine which heats the water is certainly metallic. Does this machine require tevila?

I have what seems to be a good justification to exempt this machine from tevila. As I said, the entire machine is plastic, so the only part that is metallic and would be mechayev the entire machine tevila is the inner metal tubes which the water travels through to heat it up. The halacha of tevilas keilim is that "beis hastorim" - hidden areas of the keli, don't require tevila (y.d. 202:5, and last taz). Unlike tevila of a person where there is a problem of chatzitza even on beis hastorim because they need to be fit for bi'as mayim, the halacha by a keli is that it doesn't need to be fit for water to touch and can have a chatzitza. It is for this reason that we don't require one to immerse a keli until all the air bubbles empty from the inner parts of the keli - because the areas that aren't visible don't need to come into contact with the water. This coffee maker is constructed in a way where we have no parallel in the keilim of chazal. The food actually comes into contact with the beis has'tarim of the keli, and that is the only metallic part of the keli (aside from the pin that opens the pod like a can opener). Therefore, even if one were to be tovel this coffee maker, the metal tubes inside wouldn't have to come into contact with the water because it is just beis hastorim. It seems completely illogical to say that the part of the keli which is mechayev the entire keli in tevila wouldn't even need to come into contact with the water, yet the keli would require tevila. At least when we require tevila to a keli where the ma'amid is metal (even though the metal doesn't come into contact with the food), the metal nails and screws would come into contact with the water. But in our case where the metal part of the keli is beis hastorim and wouldn't need to come into contact with the water, it doesn't seem logical to say that the metal inside would still be mechayev the plastic part of the keli to be toveled (of course a keli that has metal and requires tevila, must be fully immersed so that even the plastic is toveled, but here the only part which would be mechayev tevila on the keli doesn't need to be immersed and therefore wouldn't be mechayev the keli to be immersed). After consulting R. Nota Greenblatt and sharing this sevara, he concurred.

FOR A VERY GOOD SHIUR ON THIS ISSUE FROM MY BROTHER - SEE HERE.

Avoda Zara 74a - Fitting R. Elazar with R. Shimon Ben Gamliel

In the mishna there is a machlokes how to deal with wine in which there is some yayin nesech mixed in. Tana Kama says that the entire mixture is forbidden to benefit from, but R. Shimon Ben Gamliel (rsb"g) holds that one can sell it for the price of the kosher wine, deducting the value of yayin nesech. The gemara concludes that we pasken that for real yayin nesech we can only rely on RSB"G when barrels of yayin nesech are mixed with barrels of kosher wine, but not on a liquid mixture containing yayin nesech. Whereas for stam yaynam that falls into kosher wine, one can sell even the liquid mixture at the value of the kosher wine.

In the Mishna 49b R. Elazar offers another solution for dealing with bread of issur hana'ah that gets mixed with kosher breads - throw the value of the issur hana'ah into the sea so that you aren't benefiting from it. The Rabbonon disagree with R. Elazar because there is no concept of "redeeming" issur hana'ah. Rashi 49b explains that even RSB"G may agree with the rabbonon who argue on R. Elazar that throwing the value of the issur hana'ah away isn't sufficient, but would still hold that one can sell the entire mixture for the value of the heter that is in it, because by doing so they are not benefiting from the issur hana'ah at all.

The difficulty is that Rashi in our sugya seems to confuse R. Elazar's heter with that of RSB"G. Rashi d.h. chavis (and on 71b d.h. ela), in explaining the position of RSB"G himself writes that you take one barrel and throw it into the sea, thereby permitting the rest. Rashi d.h. v'issurei, explains a similar solution for chometz. Since Rashi himself holds that RSB"G will work even if we don't accept the solution of R. Elazar to throw the value of the issur hana'ah into the sea, rashi shouldn't have used R. Elazar's system to expalin RSB"G?

Perhaps rashi holds that there is a flaw in RSB"G system. We know that one cannot gift issurei hana'ah because the appreciation that the goy will have for you is also considered a benefit. How then can one sell 5 barrels of wine for the price of 4 (deducting the value of the yayin nesech) - he is essentially gifting the 5th barrel and therefore receiving benefit? Perhaps Rashi holds that the solution of RSB"G will only work if one sells all 5 barrels for the price of 5 barrels, and then takes the money of value of yayin nesech and throws it into the sea. Therefore, RSB"G approach is not independent of R. Elazar's throwing into the sea, it is in addition to it. That is why Rashi uses the logic of R. Elazar even in the opinion of RSB"G.

Avoda Zara 73b - Issur Ma'shehu of Tevel

According to R. Yochanan and Reish Lakish (who we happen to pasken like), all issurim in the Torah are batul when they no longer give taste (presumed to be 60x), except for tevel and yayin nesech which are assur even if there is a drop in a very large quantity. The gemara explains that the issur on Yayin Nesech is due to the chumra of yayin nesech. With this we can understand why Tosafos 73a d.h. yayin holds that it only applies to true yayin nesech that has been poured for avoda zara, but stam yaynam is batul in 60x (even according to the opinions who are machmir by stam yeiynam i.e. Ran, Tosafos quotes the R"i that nowadays where goyim are not real idol worshippers, stam yeiynam is like all issurim in the torah that are batul in 60x). However, the gemara struggles with tevel why are we so machmir that it is assur b'mashehu. The gemara explains that since it only takes on wheat kernel to exempt an entire pile of wheat from terumah gedola, the rabbonon instituted that the issur should be as important as the heter. Since one wheat kernel can create heter on an entire pile of tevel, one wheat kernel of tevel can create issur on the entire pile of heter.

Tosafos cites a yerushalmi that offers another rationale for why tevel is assur b'mashehu - it is a davar sheyesh lo matirin. Meaning, that there is easy way to remove the issur i.e. tithing, therefore so long as it isn't removed it will assur b'mashehu. Tosafos explains that both reasons are necessary. The rationale of our gemara כהתירו כך איסורו - since it is important in creating heter it is important in creating issur, only applies to tevel of teruma where we hold that one wheat kernel can fix the entire pile. This will not apply to tevel of ma'aser or terumas ma'aser which would require no less than 10%, therefore we need the rationale of דבר שיש לו מתירין to explain why tevel from ma'aser is also b'mashehu. Similarly, the rationale of דבר שיש לו מתירין only applies when the owner is around and can tithe properly, so we need the approach of כהתירו כך איסורו for when the owner is not available. It should follow from Tosafos that tevel that had teruma taken and is only missing ma'aser, when the owner is not around, should be batul in 60x like other issurim in the Torah.

The Hagahos Ashri offers another situation where we couldn't apply דבר שיש לו מתירין and therefore need the concept of כהתירו כך איסורו. He holds that davar she'yesh lo matirin only applies when the issur is intact, but if it dissolves in the heter, it no longer applies. This approach is quoted by the Rama (y.d. 102:4). The Gr"a (13) points out that from the fact that Tosafos doesn't use this approach indicates that they hold that even issur which dissolves can be considered a דבר שיש לו מתירין and not batul.

Avoda Zara 72b - Does it help to have shomer shabbos pourers?

Halacha l'ma'aseh (I think many are not aware of this)

Those who truly appreciate fine wine (בדאבוני אין אני בכללם) are very particular about avoiding wine that is mevushal because it ruins the taste of the wine (which is exactly why it is permitted). At a simcha many prefer to serve the best and finest of wines, which is often not mevushal. Of course, they will be willing to spend on shomer shabbos waiters who are going to be pouring the wine. Is this sufficient?

When we discussed earlier on this blog some questions an answers about yayin nesech, this question was touched on and is worthwhile revisiting. The gemara in the daf today discusses the issue of nitzuk - attachment by pouring. Although in the context of mikva we pasken that it doesn't create an attachment, the gemara discusses the statement of Rav Huna who claims that in the context of yayin nesech we do consider nitzuk to be an attachment. Assuming we pasken like R. Huna, the result will be that when wine is poured into the container of a non-jew containing drops or residue of wine which are assur (because they touched his lips when he drank), the flow of wine will connect the entire bottle to the wine in his glass and render all the wine in the bottle to be yayin nesech through nitzuk. The application of nitzuk to the case of the few drops of residue seems clear both from the gemara 71b and 72b. Rashi paskens like R. Huna that nitzuk is an attachemnent, but Rabbeinu Tam disagrees. Tosafos says that in the case of a significant loss (such as pouring from a barrel where there is a large quantity of wine, or perhaps when the bottle of wine is very expensive) one can rely on rabbeinu tam in retrospect that the wine in the bottle will not be assur. However, if it is not a major loss (and certainly lichatchila) we must be machmir for rashi that nitzuk is an attachment. Another point to rely on is that if the wine in the bottle is greater than the quantity of yayin nesech in the goy's cup, it would be batul in 60x, but one can not rely on bitul l'chatchila. Therefore, one cannot have a shomer shabbos waiter pouring non-mevushal wine at a simcha into the cup of a goy (or non-shomer shabbos) because when they ask for a refill, the residue in the cup of the goy will make the entire bottle assur. The only solution to this problem is to have the wine poured into glasses in the kitchen and served in glasses to the guests, so that there are no refills without washing out the glasses.

Avoda Zara 72a - Theft less that a perutah

The gemara ultimately proves that meshicha is a kinyan that works for a goy from the case where a goy steals from a Jew and primarily the seifa of the braisa where a second goy steals from the first. The fact that the that goy #2 can be chayev misah for stealing from goy #1 implies that goy #1 who stole from the Jew actually acquired the item with meshicha. Tosafos explains that although the entire discussion of meshicha being effective only applies to a sale, but for a gift or any transaction that doesn't involve money all agree that meshicha works (as it does by a jew since there is nothing else). Nevertheless, we can prove the point from the case of theft even though there is nothing else but the meshicha on the item. Why? Because by theft it is coming to his hand illegally - if meshicha wouldn't be a standard kinyan even for a sale, it wouldn't work when it came into his hand illegally, and would only work by a gift where there is nothing else to make the kinyan AND it comes into his hand legally. It seems logical that Tosafos equates theft with a sale (rather than equating it to a gift) because in the context of a sale the item is also being acquired without consent of the owner (since he hasn't yet received payment). The taking of an item prior to payment in a sale is tantamount to stealing an item in the sense that the original owner still maintains a claim, to the exclusion of a gift where the original owner has no claim after the item is given. Therefore, if meshicha works by theft where the owner still has a claim, it should work by a sale where the owner still has a claim.

The gemara tries to prove from the reisha that a goy is chayev misah for stealing from a jew that it must be meshicha works, otherwise why would he be chayev misah. The gemara pushes that off by saying, perhaps meshicha doesn't work and the chiyuv misah is for aggravating the jew. To that the gemara asks, "if so, what does it mean 'it need not be returned", to which the gemara answers, "it is not b'torah hishavon". Rashi here indicates that according to the original thinking that meshicha works as an acquisition, the statement of לא ניתן להשבון, is an independent statement that the Jew is mochel on less than a peruta therefore it doesn't need to be returned. This is to the exclusion of stealing a full peruta that would need to be returned because the Jew isn't mochel. However, Rashi in yevamos 47b explains that even according to the approach that a goy acquires with meshicha, the statement of לא ניתן להשבון is to explain why the goy is chayev misah. If the goy would be obligated to return, that would be in place of capital punishment, thereby exempting him from capital punishment. But, since the goy is not obligated to return, he is chayev misah. This would apply equally to when he steals a peruta or less than a peruta, to the exclusion of a Jew who is obligated to return and therefore not punished. According to this approach, after the gemara says that meshicha doesn't work and the goy is punished for paining the Jew, the question of "what does לא ניתן להשבון mean?" is that since he is not being punished for stealing, but for paining the Jew, this can't be fixed by returning the money. So, why does the braisa imply that he doesn't need to return the money and that is why he is being killed -the capital punishment is for the pain he caused the Jew which is not at all connected to returning the money? To that the gemara answers that it is not b'torash hi'shavon, meaning that the crime committed was paining the Jew which is not possible to return, therefore he is chayev misha.

Chazon Ish

Tomorrow is the yahrtzeit of the chazon ish. I don't typically do this, but since the chazon ish didn't have children, his legacy is primarily in his seforim and partially in appreciating who he was.

There is a story about the chazon ish recorded in the sefer of R. Yitzchok Eliyahu Henkin (section of hespeidim pg. 195) recalling an episode that took place 93 years ago - תרע"ד לבריאת העולם

R. Henkin tells that he was a rebbi in the city Stoypzi and he went to visit the Rav of the city R. Yoel Sorotzkin. He saw a young man pacing back and forth wearing very simple clothing. He asked the young man, "who are you?", to which he responded "the son of the rav from kosvo". "What do you do? - a store owner. Do you set aside time for Torah study? - when there is time. What are you doing here in the house of the Rav? - the rav called me." R. Henkin writes that he assumed that he must have a monetary dispute and came for a din torah. Afterwards R. Henkin writes, he found out that this young man wrote a brilliant sefer and teh Rav called him to substitute for him to pasken the shailos in the town while he is away. R. Henkin writes that he spent 6 months talking in learning with the chazon ish and in every area he was fully knowledgeable of every detail getting down to the truth of the Torah.

R. Henkin relates that for every difficult question R. Chaim Ozer would say "let's go consult the chazon ish". He became a leader without being formally appointed. A leader who was hidden until the end - מי יתן לנו תמורתו

Avoda Zara 68a - Source for Ran quoted yesterday

On yesterday's post I explained the Ran who holds that the source of נותן טעם לפגם is as the gemara implies learned from the issur of neveila that deteriorates to a point that it is no longer eatable. Based on this approach, the heter for נותן טעם לפגם is not a limitation in the din of ta'am k'ikar, rather it is because issurei achila (forbidden foods) only applies when the person is benefiting from them. Therefore, the Ran concluded that if the appreciation in quantity compensates for the deterioration of quality, it would be assur since there would be an ultimate benefit and gain.

It seems to me that there is a strong support to the Ran's approach from the gemara today. The gemara tries to prove that the machlokes between R. Meir and R. Shimon whether נותן טעם לפגם is permitted applies even when the issur gives a bad flavor at the time that it falls into the heter (meaning that even under those circumstances R. Meir would forbid it). The braisa says that when yeast of chulin falls into dough (enough to cause it to rise) so that the dough is perfect, then teruma yeast falls into the same dough which causes it to have a sour flavor, נותן טעם לפגם - there is a machlokes whether it is permitted. From here we see that when issur or teruma falls in and gives a bad flavor, R. Meir would still hold that it makes the dough assur. The gemara pushes that off by saying, perhaps even R. Meir would agree that נותן טעם לפגם is mutar (when it is po'geim at the time of the mixture), but in the case of the yeast he holds that it isn't considered p'gam (detrimental). Although for eating purposes the dough is ruined by the extra yeast, it is now fit to use as a sour dough or yeast to help other doughs rise and is therefore considered an improvement, not a p'gam. The sevara seems to be that even though there is certainly a p'gam in the taste of the dough, it can be compensated for by the use of the dough for other purposes (such as rising other doughs) and therefore is considered נותן טעם לשבח. Just as the benefit for other purposes can compensate for the detriment in taste, so too the benefit of quantity can compensate for the detriment in quality and be considered נותן טעם לשבח and therefore forbidden.

Avoda Zara 67 - Ta'am L'fgam

There is a very fundamental argument between the Rashba and Ran in how we learn out the concept of נותן טעם לפגם (bad flavor) being permitted. The gemara speaks about נותן טעם לפגם being permitted to eat in two ways: 1. An item that is essentially fit to eat, but gives an off flavor either because it is slightly spoiled or because it doesn't compliment the food that it fell into (see rashi 67a d.h. kol, that this category doesn't need to be not eatable). 2. The issur deteriorates to such a degree where it is no longer fit to eat.

Tosafos 67a elaborates in their rejection of Rashi in Chulin 98b who holds that the concept of ta'am k'ikar is only Rabbinic which means that the application of the heter of נותן טעם לפגם to giving an off flavor (#1 above) only needs to be a rabbinic heter. Tosafos proves that we hold the concept of ta'am k'ikar to be d'oraysa and discusses the possibility of being able to give malkus for just ta'am of issur because it is literally like the issur itself. According to this approach, the heter of נותן טעם לפגם that permits the taste of issur even when it is just slightly off, would need to be דאורייתא.

The Rashba and Ran disagree about the source for the first type of נותן טעם לפגם. The Rashba writes that the gezeiras ha'kasuv of ta'am k'ikar which is the source that taste alone is considered significant like the item itself, only applies to a positive taste but not to a negative taste. The Ran (32b in Rif) points to the gemara 67b that asks for the source of נותן טעם לפגם and darshens the pasuk of לא תאכלו כל נבלה לגר אשר בשעריך - כל הראויה לגר קרויה נבלה, שאין ראויה לגר אינה קרויה נבלה. This pasuk teaches that any issur which is not fit for human consumption doesn't qualify as issur, and somehow uses this as the source to permit all נותן טעם לפגם even when the item is still fit to eat. The Ran explains the connection: Just as neveila which is spoiled and unfit to eat is permitted because the eater no longer enjoys or benefits from it, so too when an issur food gives a bad flavor to the soup that it fell into, the taste is permitted since the eater doesn't benefit from the issur. Therefore, the Ran writes that when the issur increases the quantity to a point where the benefit of the increased quantity offsets the minor detriment caused by the off flavor, the food would be forbidden (unless it literally deteriorates until it is no longer fit to eat at all).

There seems to be a fundamental argument between the Rashba and Ran in the nature of the heter of נותן טעם לפגם. The Rashba holds that there is no inherent relationship between the two categories of נותן טעם לפגם that were mentioned above. A food which is unfit to eat the Torah considers like dust from the drasha of שאין ראויה לגר אינה קרויה נבלה. But, when the issur is eatable just gives an off flavor, it retains it's status of issur, but the flavor it contributes to the soup is not included in the prohibition of ta'am k'ikar (the pri megadim explains that the gemara doesn't mean to learn the source of נותן טעם לפגם from neveila, just the premise of p'gam being mutar). However, the Ran holds that there is an inherent connection between these two categories. The entire heter of ne'veila that spoils is not because it is considered dust, rather because the Torah only forbids issur when there is hana'ah (benefit and enjoyment) from the eating of it. So long as there is no benefit or enjoyment it is permitted, therefore even when the issur is still eatable but contributes an off flavor it will not assur the soup. In short, the Rashba holds that the heter of neveila that is not eatable is a heter on the cheftzah and cannot be applied to an eatable food that gives off a bad flavor. But, the Ran holds that the heter of ne'veila is a heter on the gavra because he is not benefiting from the issur, which also applies to a case where eatable issur puts a bad flavor into the soup - but wouldn't apply when there is a benefit from the increased quantity.

The (pri megadin y.d. 103 m.z. 1) explains that according to the Rashba that the nature of נותן טעם לפגם is that it isn't included in ta'am k'ikar, we would still require bitul b'rov to permit the small amount of issur that is present (just that it won't assur up to 60x since it isn't included in the chiddush of ta'am k'ikar). But according to the Ran, so long as the person isn't benefiting from the issur being there, it is permitted to eat, no bitul is necessary. Therefore, the pri megadim suggests that they go li'shitasam regarding the machlokes whether on pesach we can permit נותן טעם לפגם. The Rashba holds that the heter of נותן טעם לפגם requires bitul, and since by chometz we are machmir for even the smallest amount (ma'shehu), we can't apply the heter of נותן טעם לפגם. But, the Ran who holds that נותן טעם לפגם wouldn't require bitul would apply the heter of נותן טעם לפגם even to chometz on pesach.

See the chazon ish (y.d. 30:2) for a more detailed discussion of the Ran, and whether the Ran would permit even when a 5 cups of issur falls into 4 cups of heter but spoils the flavor of the heter to a point where the increased quantity is not beneficial, or would the Ran still require that the quantity of heter be greater than the issur.

The Shulchan Aruch (Y.D. 103:2) is machmir (ויש מי שחוכך לומר) for the Ran when there is benefit from the increased quantity and the rama seems to agree, yet the rama in o.c. is also machmir for the Rashba (Shulchan Aruch O.C. Hilchos Pesach 447:10) that נותן טעם לפגם is assur because it requires bitul.

Avoda Zara 66a - Ta'am l'fgam by foods that can't become batul

Tosafos says that according to some the heter of ta'am l'fgam (bad flavor) only applies to items that would be nullified in 60x heter to issur, but wouldn't apply to foods that are assur b'mashehu and are never batul. The rationale is a simple one - to permit ta'am l'gam we require 2 concepts: 1. only good flavor spreads issur until 60x, not bad flavors. 2. the minute amount of issur that we consider there to be in the flavor is batul b'rov in the majority of heter. Since we can only permit ta'am l'fgam based on both these assumptions, when the issur is not batul and the second reason isn't applicable we can't be matir foods even if it gives a bad flavor.

Tosafos rejects this logic by differentiating between an issur ma'shehu that falls into the same min, and ta'am l'fgam even when the item of heter and issur is exactly the same. R. Akiva Eiger (gilyon ha'shas) explains the rationale that since Tosafos is working in Abaye that we categorize issurim based on taste rather than name, any issur that gives a bad flavor doesn't have the same taste as the heter and is considered a min b'sheino mino (different item). Therefore, even if the item of issur is identical with that of heter (min b'mino), since the issur gives a bad flavor in the heter, it is always categorized as min b'sheino mino. No bitul is necessary to permit it because the only issur that exists is issur of flavor which is completely lost in the heter and would be permitted even by an issur that has no bitul. However, Tosafos seems to apply this concept even according to the halacha where we pasken like Rava and categorize issurim based on name. R. Akiva Eiger asks, it should follow that when we categorize based on name, even if an issur is ta'am l'fgam that falls into heter of the identical min, it should qualify as min b'mino (since the only distinction is flavor and we don't categorize based on flavor). By min b'mino we forbid the item b'mashehu, therefore we shouldn't be able to permit an item of issur that is nosein ta'am l'fgam that get mixed with an identical item (min b'mino).

Avoda Zara 64a - Rotzeh Bi'kiyumo

Below is a letter that I wrote a couple of months ago on the sugya discussed in today's daf:

י"ז שבט תש"ע

לכבוד מו"ז הרה"ג יצחק אליהו גפן שליט"א,

אני רגיל ללמד שיעור קבוע כל יום שני וחמישי, וכעת אנו עסוקים במסכת ע"ז סד ע"א בסוגיא דרוצה בקיומו דיין נסך. בגמ' קמבעיא אם עכו"ם שכר לישראל לשבור כלים מלאים יין נסך ולשפכם אם שכרו מותר, מי אמרינן כיון דרוצה הישראל בקיומן של הכלים כדי שירויח בשבירתן שכרו אסור, או דלמא כיון דלמעוטי תיפלה שפיר דמי, ומסיק ישבור ותע"ב. והביא הגמ' ראיה לזה מהא דמותר לישראל לעקור כלאים עם עכו"ם ולהשליכן לאיבוד כדי למעוטי תיפלה, ומפרש הש"ס דאף לרבנן דס"ל דליכא איסור לקיים כלאים וממילא לא שייך כל הענין של רוצה בקיומו, ולא דמי ליי"נ, מ"מ יש צד איסור דקמיירי כשישראל עובד לעכו"ם בחנם והוי איסור של מתנת חנם אליבא דר"י דאוסר, ומדרבי יהודה נשמע לר"ע, כשם שלר"י למעוטי תפלה עדיפא מהאיסור לעבוד בחנם ודוחה אותו, ה"נ לר"ע למעוטי תיפלה עדיפא מרוצה בקיומו של כלאים ודוחה אותו, וה"נ גבי יי"נ למעוטי תיפלה עדיפא מרוצה בקיומו, ותו לא מידי.

והנה, כשחזרתי הביתה עיינתי בספרך החשוב "דליית הכרם" וראיתי שהקשית שם קושיא עצומה. כל הדמיון של הש"ס אינו דומה, שאין הנידון דומה לראיה. מדברי הר"ן בגיטין בשם הרמב"ן למדים דכל האיסור מתנת חנם לנכרי שייך רק כשהוא לטובת הנכרי, אבל לטובת הישראל לא נחשב כמתנת חנם ולא שייך האיסור. לפיכך כיון שישראל עושה כדי למעוטי תיפלה והוא לטובת הישראל להרויח המצוה, תו לא שייך בזה כל האיסור של לא תחנם, ולאו משום דלמעוטי תיפלה עדיפא ודוחה האיסור של מתנת חנם, אלא משום דבכה"ג ליכא איסור מתנת חנם כלל וכלל. וא"כ לא שייך להביא ראיה משם להא דלמעוטי תיפלה עדיפא מרוצה בקיומו גבי כלאים ויי"נ, דכיון דאיסור רוצה בקיומו שריר וקים מי יימר דלמעוטי תיפלה עדיפא מיניה ודוחהו עכת"ד (בגליון הגמ' שלי ציינתי שכבר עמד הגרע"א בחידושיו ע"ז). אמנם כתבת ליישב דאולי יש לחלק דכשישראל העוקר כלאים של עכו"ם בחנם אינו מקבל שום הנאה אישית וישירה מזה, וליכא הרווחא כולי האי מש"ה שייך האיסור מתנת חנם, אלא דלמעוטי תיפלה עדיפא מיניה, ולא דמי לשאר מקומות שמקבל הישראל הנאה אישית וישירה. אכן, בסוף דבריך הקשית על תירוץ זה בטוב טעם, דהארץ שייכת לכל ישראל והוא שותף בארץ ונהנה מעקירת כלאים. ובאמת נראה שהעיקר כסוף דבריך, שהרי לפום ריהטא אינו מובן כ"כ אמאי שייך כל הענין של למעוטי תיפלה בכלאים של עכו"ם. בשלמא ביי"נ שאוסר משום תקרובת ע"ז ורצון התורה הוא שיהא מושבת ומבוער מן העולם שפיר מקרי למעוטי תיפלה, וגם אליבא דר"ע שיש איסור לקיים כלאים נמי ניחא דכיון שהאיסור הוא בקיומו, ביעורו נחשב כמצוה של מיעוט תיפלה. אבל לרבנן דפליגי אדר"ע שכל האיסור הוא רק במעשה זריעת כלאים ותולדותיה, ולא בקיומו, איזה מצוה איכא בלמעוטי תיפלה. מ"מ מבואר בגמ' דמאיזה טעם שהוא קים להו לחכמי הש"ס שכן הוא האמת, דאף לרבנן יש ענין של מיעוט תיפלה, ומסתברא שהטעם כדכתבת שרצון התורה להשבית כל כלאים מא"י. לפיכך שפיר הקשית דכיון שיש מצוה עליו למעוטי תיפלה ולבער כלאים כדמוכח מהא דדוחה האיסור של רוצה בקיומו, הוי טובת ישראל ותו ליכא איסור כלל של מתנת חנם, וחזרא הקושיא לדוכתיה [ובאמת מוכרחין לומר כן, שלא שייך איסור מתנת חנם כשהוא למעוטי תיפלה לטובת ישראל, דאילו אתינן עלה מדין דחיה דלמעוטי תיפלה עדיפא וחשובה יותר ודוחה איסור מתנת חנם, הא איפכא מסתברא, דאיזה מצוה דאורייתא שייך במיעוט תיפלה של כלאים, ואף לר"ע שיש איסור בקיומו, אינו מקיים מצוה בביעורו רק שמסלק ממנו האיסור, ואמאי עדיפא לדחות לאו גמור ד"לא תחנם" לעבור על איסור בידים ובקום ועשה שלא ליתן להם מתנת חנם. א"ו לא שייך כל האיסור מתנת חנם כשהוא למעוטי תיפלה לטובת ישראל].

ומתוך חומר הקושיא נלענ"ד ליישב דכשם שהאיסור מתנת חנם מיתלא תלי וקאי בהענין של למעוטי תיפלה, ובמקום מיעוט תיפלה ליכא איסור מתנת חנם כלל, ה"נ באיסור רוצה בקיומו דמיתלא תלי וקאי בהענין של למעוטי תיפלה כדאבאר. באמת, אינו מובן אמאי שייך איסור רוצה בקיומו בנידון דידן, דבשלמא כשעוסק בשמירת יי"נ וכלאים ואחריותן עליו, הוא רוצה בקיומו ממש שרצונו שיהיו שריר וקים בהחלט, אבל הכא עיקר כוונתו לשבור החביות ולהפסיד היי"נ, ואיזה רוצה בקיומו שייך בזה. וכבר הרגיש רש"י בקושיא זו וכתב בד"ה מי אמרינן, וז"ל דישראל זה רוצה בקיומן של חביות האלו שלא ישתברו עכשיו מאליהם עד שישברם הוא ויטול שכרם עכ"ל, וכן בד"ה אבל עוקרין, כתב וז"ל שלא יעקרו מאליהן עד שיעקרם הוא עכ"ל. באמת הישראל אינו רוצה בקיומו של יי"נ וגם אינו רוצה בקיומו כלאים ומעשיו מוכיחים שאינו רוצה בקיומן מפני שהוא עוסק בידים בביעורם ובאיבודם. אלא שהוא רוצה בקיומו לזמן מועט כגון לשעה או שעתיים עד שנגמר מלאכתו כדי להרויח שכרו בביעורם. ונראה לפרש שהאיסור רוצה בקיומו וגם החיוב למעוטי תיפלה נובע מרצון התורה להשבית ולאבד תקרובת ע"ז וכלאים. וזהו עצם השאלה, דכיון דלא שייך כאן רוצה בקיומו ממש, ורוצה בקיומו הוא רק כדי להפסידו, יתכן דאין כאן איסור רוצה בקיומו כיון שבאמת רוצה באיבודו ורק רוצה לקיומו כדי למעוטי התיפלה ולאבד היי"נ. והשתא, אתי שפיר דהכי קאמר, כשם שלא שייך איסור מתנת חנם במקום למעוטי תיפלה מפני שאין זה מתנת חנם רק לטובת עצמו עושה, ה"נ לא שייך האיסור רוצה בקיומו במקום למעוטי תיפלה שאין זה קיום אלא כעין הכשר מצות איבוד ועיקר דעתו ורצונו לאבדו ולבערו. ואפשר לדייק כן קצת (אף שאינו דיוק חזק) מלשון הרמב"ם (פי"ג מהל' מאכ"א הל' י"ז) שכתב דמותר להשכיר את עצמו לשבר חביות של יי"נ "ותבא עליו ברכה מפני שממעט בתיפלה". ולכאורה הו"ל להרמב"ם להזכיר בהדיא שיש כאן איסור של רוצה בקיומו אלא דלמעוטי תיפלה עדיפא וחשוב יותר. אלא משמע מלשון הרמב"ם דלא שייך כאן איסור רוצה בקיומו כלל "מפני שממעט בתיפלה", כלומר דכיון שעיקר הרצון בקיומו הוא רק כדי למעט התיפלה לא מקרי רוצה בקיומו כלל. ומטעם זה כתבו הש"ס והרמב"ם דתבא עליו ברכה, דסד"א שטעם ההיתר בזה משום שיצא הפסדו בשכרו, אבל מ"מ קצת עבירה איכא כגון תענית חלום בשבת, אלא שלמעוטי תיפלה חשובה יותר מהאיסור רוצה בקיומו. על כן כתבו דתבא עליו ברכה, לרמז שאין סרך איסור בזה כלל וכלל.

שוב מצאתי בספר קהלות יעקב (ע"ז ס' כ"ד) שהביא קושיא הנ"ל בשם הגרע"א בתשובות (ס' קצ"ד) וכן מהחת"ס. לא נחית הגאון בעל הקה"י למה שרציתי לחדש, אלא הלך בדרך שכבשת דרק מפני מצות גדולות אמרינן דליכא לאו דלא תחנם, אבל למעוטי תיפלה אין בה צד חשיבות להפקיע האיסור מתנת חנם אלא דוחהו וממילא אתי שפיר שדוחה גם האיסור של רוצה בקיומו. ואפשר שהניחו לי כל הני רבוותא מקום להתגדר.

נכדיך אוהביך

Avoda Zara 61b - Some Q and A on Yayin Nesech

After completing the sugya of Yayin Nesech which contains many details, it is recommended to go through the Chochmas Adam klal 75-77 where he brings all the cases of the sugya and many of them that are discussed in Tosafos down l'maseh (see here).

Here are the basic rules:

1. A goy can make wine assur by: a. touching it with his hand or something else he is holding. b. shaking an open bottle of wine that has a narrow spout. c. ko'ach - causing the wine to move such as pouring it into a cup.

2. Category "a" and "b" are prohibited to even derive benefit but category "c" is only an issur to drink.

3. The ko'ach of a goy (category c) with intent is prohibited to drink, but without intent is permitted to even drink.

4. Rashi holds that goyim nowadays are not truly idolaters and therefore have the status of a child who doesn't comprehend the service of avoda zara and therefore the wine he touches is only forbidden to drink but permitted to benefit from. The Rama rules that we can rely on this opinion in a case of loss. Therefore, in a case of loss, whenever the gemara will say it is forbidden to benefit, it is permitted to benefit but forbidden to drink; whenever the gemara will say forbidden to drink, it is even permitted to drink.

Q and A of some practical questions:

1. What happens if one leaves a bottle of non-mevushal wine in their refrigerator and they have a gentile cleaning lady? A goy cannot do anything to make the wine forbidden so long as it is closed (doesn't have to be sealed) because even "shaking" would not be a concern unless it is an open bottle. Therefore, if a Jew is in the house or can pop in so that the goy is scared to open the bottle, the wine is completely mutar even if the goy moved the bottle around. But, if the Jew leaves the house without sealing (at least one seal) the bottle, we are concerned that the goy opened it to drink (we are concerned for both touching and shaking) and is therefore forbidden to drink even if it is expensive wine.

2. Can a Jew pour non-mevushal wine into a glass being held by a goy? There is no prohibition for a goy to drink wine that he touched but the problem is with the bottle. Tosafos quotes 2 opinions whether "nitzok" - the flow of wine, connects the wine in the bottle with the wine in the glass of the goy. We are machmir for any pouring from a small container which is generally not a significant loss. Therefore, if one pours wine into a glass in the hand of a goy, all the wine remaining in the bottle is assur. Even if the goy finished the wine and there is some residue of wine in his glass when the Jew refills his glass, the wine in the bottle will be assur (unless the drops are batul in 60x by the wine remaining in the bottle).

3. If a goy is given a bottle of non-mevushal wine and opens it, is it assur? So long as he hasn't moved the bottle, only touched the outside of the bottle, the wine is still permitted. BUT as soon as he would move the bottle even on the table (machlokes) and certainly if he would lift up the bottle we are concerned that he will shake it for a.z. and it is therefore assur to get any benefit from that wine. If it is an expensive bottle and a significant loss, it can be sold to a goy. It seems to me that it is still forbidden to gift it to a goy unless you will receive benefit in return because the gifting doesn't compensate for loss and would not justify relying on the opinion of Rashi.

4. If one invites a not religious person who would qualify as a "mumar" (such as someone who learned in Yeshiva and publicly violates shabbos), can we give him wine to drink that isn't mevushal? R. Moshe (o.c. 5:37:8) has a teshuva where he permits wine to be given to him even though he will make it assur the moment he touches it. The heter is based on the concept that we have no source in the gemara to consider a mumar like a goy for this purpose and since the prohibition is predicated on the intermarriage concern, it shouldn't really apply to a mumar who is biologically Jewish. Although the custom is to be stringent about this, it wouldn't apply to an uncommon situation such as this.

5. Can one gift a non-mevushal bottle of wine to a co-worker who is a mumar? Rav Moshe's logic would presumably apply to this situation also. Furthermore, since you aren't handing him issur, rather he is deciding to open it at some point later, it doesn't seem to be a torah prohibition of lifnei iver, rather a rabbinic prohibition of helping someone do an aveira which according to the shach in y.d. (based on tosafos in avoda zara 6b) wouldn't apply to a mumar.

Avoda Zara 57b - Stam Yeiynam Nowadays - Gentile Wine

The gemara today is the foundation of one of the most fundamental practical leniencies in the rules of yayin nesech. Rav made a statement that a young child who doesn't have "intent" to come into contact with the wine, still renders the wine to be yayin nesech. However, from the story of the goy who touches the wine with his lulav, the gemara proves that Rav never extended the prohibition to an issur of benefit, only an issur to drink. Shmuel made a statement that a slave even after going through a full conversion (mila and tevila), his contact with wine would still render it yayin nesech until the avoda zara is out of his system, which the gemara considers to take 12 months (we find in the context of yi'ush on a lost object and in the gemara at the end of brachos in the context of forgetting the deceased, that 12 months is the time it takes to forget - although in the context of yefas to'ar the ramban explains that some level of forgetting is achieved after just 30 days). The gemara proves from a braisa that both Rav and Shmuel cannot be correct - if we pasken like Shmuel we reject Rav. Tosafos quotes Rabbeinu Tam who paskens like Shmuel (and paskens like the lashon of the saliva and midras being tahor) which compels us to say that the braisa rejects Rav. Since even Rav only considered the wine that a goyish child touches to be assur to drink, the braisa which rejects the stringency of Rav would hold that it is mutar to even drink. Therefore, Rabbeinu Tam should hold that if a child even up to the age of 10 or 11 (which is presumably the age given by the braisa where he understands the worship of idolatry) who touches wine, would not in anyway make the wine assur - it would even be permitted to drink.

Tosafos quotes the Rivan (rashi's son in law) and the Rashbam (rashi's grandson - the son of his other son in law, rabbeinu meir, and older brother of rabbeinu tam) in the name of Rashi that all goyim nowadays who are somewhat removed from idolatry have the status of a child. The rationale for this ruling would be that the fundamental issur on wine to drink is because of intermarriage (36b), just that it was extended to any benefit because of idolatry (Tosafos 29b), therefore in the absence of idolatry the only prohibition applicable is the issur to drink (similar to bishul akum and pas akum). The R"i sent a letter to Rabbeinu Tam saying that combining the p'sak of Rabbeinu Tam with that of Rashi would make obsolete the entire prohibition of stam yeiynam (r"t who rejects rav would permit contact of a child to even drink, and rashi would qualify all goyim as "children"). Rabbeinu Tam responded that he never paskened against Rav's statement that wine which came into contact of a child is forbidden to drink (he claimed to have misquoted by a student). R"T adds that we actually reject the statement of Shmuel, which compels us to pasken like Rav forbidding the wine to drink. But, Rabbeinu Tam confirms the p'sak of Rashi that all goyim are considered like "children". However, the R"i challenges even the p'sak of Rashi because a child who doesn't even intend to touch is not the same as an adult who intends to touch the wine just not so tied to avoda zara. Rabbeinu Tam confirms that there is no obvious proof to Rashi and concludes that any wine touched by a goy should be forbidden to benefit from BUT - ואף על פי כן, לא רצה רבינו תם לאסור הואיל ושפט המנהג להתיר, והנח לישראל שיהו שוגגים ואל יהו מזידין

In conclusion, we don't have any proof to Rashi, but we also don't reject his ruling. Therefore, the very first Rama in Hilchos yayin nesech (123:1) quotes the opinion of Rashi equating all goyim nowadays with the child spoken about by the gemara, and permits benefit from the wine that he touched. But, the Rama rules that one can only rely on this to prevent a loss, but l'chatchila it is forbidden to purchase wine touched by a goy in order to sell. The Gr"a (5) confirms this ruling, since many ge'onim forbid it, it is sufficient to be matir only when there is a pressing need.