Menachos 89a - Amount of oil in Menorah

The gemara says that the Rabbonon determined that the amount of oil necessary for each candle in the menorah was 1/2 lug of oil per night. This amount would be the right amount for even the longer nights of the winter. However, there is a machlokes in the gemara how they figured out that this was the right amount. One opinion says that began with a larger amount and when they found too much oil left over in the morning, they slowly reduced the amount that they initially put in the candle - the advantage to this approach is אין עניות במקום עשירות, we aren't concerned with "waste" in the beis hamikdash. The other opinion says that they started with a smaller amount of oil (rashi says that they began with a rivi'is - not clear where he gets that from), and when they realized that it didn't last the entire night, they slowly started to add oil - the advantage to this approach is התורה חסה על ממונן של ישראל , not to waste oil. The opinion who says that they started with a small amount of oil and when they realized it wasn't enough, they would add on the future nights, is very difficult to understand. How could they have been cheap on the oil in order to save money since it could lead to not fulfilling the mitzvah of having the candles burn all night long. This gemara seems to imply that the mitzvah of lighting the candles in the beis hamikdash was הדלקה עושה מצוה, similar to what we say by ner chanuka. However, the gemara and rambam clearly hold that the mitzvah was to hvae the candles burning all night long and the mitzvah is not fulfilled at the moment of lighting. Furthermore, even by chanuka the halacha demands that at the time of lighting there is sufficient oil to burn for the duration of the time. This should certainly be necessary by the candles in the beis hamikdash. How can there be an opinion that they began with a smaller amount of oil, and not fulfill the mitzvah of lighting the menorah?

The Nesivos HaMishpat (Chavos Da'as) has a sefer with hagahos on shulchan aruch and its commentaries called M'ginei Artetz. In Hilchos Chanuka he writes:

בספר מגיני ארץ מבעל נתהמש"פ על הל' חנוכה החליט דבמנורה שבמקדש לא אמרינן שהדלקה עושה מצוה וז"ל לכן נראה דמצוה דהדלקה דחנוכה אינו דומה למצות הדלקה דמנורה, דבנר חנוכה אין המצוה רק תחלת ההדלקה שידליק שיעור כזה, תדע דהא כבתה אין זקוק לה ומש"ה צריך לכתחלה ליתן כשיעור, משא"כ במנורה המצוה והחיוב הוא שיהיה דולק כל שיעור הזה דהא כבתה זקוק לה ומש"ה סגי אפילו כשנותן לכתחלה פחות מכשיעור רק שיראה להוסיף בכל פעם עד שידליק כל השיעור וכמ"ד ממטה למעלה (היינו מ"ד במנחות פט ע"א שמתחלה נתנו רביעית ואח"כ הוסיפו עד חצי לוג כשראו שאין סיפוק). ולפי"ז אתי שפיר בס' תרע"ג ס"ב דאמר הדלקה עושה מצוה לפיכך אם כבתה וכו' שעמד עליו הט"ז בס"ק ח' (שהקשה מה הקשר בין הדלקה עושה מצוה לכבתה אין זקוק לה, הא אף אם הנחה עושה מצוה נמי נוכל לומר שאם כבתה אין זקוק לה). ולפמש"כ אתי שפיר כיון דאין מצותה שיהיה דלוקה כל שיעור הזה כמו במנורה, רק תחלת ההדלקה לפיכך אם כבתה וכו' ואתי שפיר עכ"ל. הרי סובר דהא דנקט המחבר לשון "הדלקה עושה מצוה" לאו לאפוקי הנחה אלא לאפוקי המנורה שבבית המקדש שהמצוה לא נגמר במעשה הדלקה אלא המצוה היא שתהא דולקת ועומדת.

The Nesivos explains that the opinion who says that they started with a smaller amount of oil doesn't mean to say that they put a rivi'is in the first night and when they saw it went out early they added a little the next night. Rather, they started with a rivi'is and when they realized at 4am that it wasn't going to last until the morning, they added a little more. Then at 5am when they saw it wouldn't last they added a little more, until they realized that it would take a half lug to stay burning until the morning. This is actually very medu'yak in rashi who writes:שבתחלה נתנו רביעית ועמדו שם וראו שאין סיפוק ושוב הוסיפו עד חצי לוג. Rashi clearly holds that they stood there all night adding oil until they figured how much would be needed. The nesivos explains that this was av viable option since in the beis hamikdash we don't say הדלקה עושה מצוה, so that adding oil after it is already burning is acceptable. However, Rashi in the k'sav yad clearly writes: בתחלה רביעית הלוג, ולא דלק אלא חצי הלילה, ליל שני הוסיפו וכן כמה לילות עד ששיערו חצי לוג ללילה. Rashi in the k'sav yad holds that they would add more the next night. According to this approach it is very difficult how they could be meva'tel the mitzvah the first few nights just to save a few pennies! Rabbeinu Gershom seems to say that they originally thought that less than a half lug would be sufficient. They never made this decision in order to save money, rather because they thought that it could indeed burn all night. Eventually they realized that a half lug was necessary to burn all night, but we learn from the fact that they initially put in what they thought is the bare minimum that the Torah cares about not wasting money and it is therefore "not permitted" to add more than a half lug.

Menachos 86b - Need the Lights?

The gemara emphasizes that Hashem doesn't need the light of the Menorah because all 40 years that the Jews were in the dessert they were led by the light of Hashem. Therefore the light of the menorah, and particularly the Ner Ma'aravi was an indication that the presence of Hashem is with the Jewish people. The gemara also says that the windows in the Beis HaMikdash were wide on the inside and narrow on the outside to funnel the inner light out to the world, as opposed to enabling sunlight to come from outside.

Tosafos says that a similar gemara in Shabbos makes a point of saying tha Aharon didn't need the light of the Menorah, as opposed to our gemara where the emphasis is on Hashem. I would suggest that they are both true. At the beginning of Parshas B'ha'aloscha the pasuk says אל מול פני המנורה יאירו שבעת הנרות. Rashi explains that the Menorah was designed so that the 6 candles, 3 on each side, faced the center candle "Why? So that people should say that He needs the light". The Maharal explains that normally one designs a candelabra so that each candle shines in a different direction to light up the larger area. The fact that all candles faced the center is symbolic of the fact that Hashem doesn't need the light. The pasuk then continues "ויעש כן אהרן אל מול פני המנורה העלה נרותיה" and Rashi explains that this is too show the praise of Aharon that he didn't deviate in any way from what he was told. The commentaries are very troubled with this pasuk. We are speaking of Aharon the Kohein, the brother of Moshe Rabbeinu - who would think that he would deviate from the way things were done? The Maharal says that he made special effort to be meticulous so that each wick faced the middle candle. This was s delicate detail that one could have been lax in, yet Aharon did it with great precision. To build on this approach, the pasuk is trying to teach that aside from Aharon lighting the candles all facing center to show that Hashem doesn't need the light, he also did this to show that he who will be working in the mishkan, doesn't need the light. When Aharon did the lighting of the menorah to face the middle, he did so with the intention of showing that Hashem doesn't require the light and that he doesn't need the light. This pasuk may be the source of both our gemara which says that the way the menorah was lit shows that Hashem doesn't need the light, and the gemara in Shabbos which says that it shows that Aharon doesn't need the light.

Menachos 85a - Coals to New Castle

The gemara tells of a strange discussion that took place between two Egyptian sorcerers and Moshe Rabbeinu. They challenged Moshe that his "tricks" of turning the stick into a snake and water into blood are unimpressive - תבן אתה מכניס לעפריים - you are bringing more straw into a place abundant with straw. Egypt had plenty of magic so that Moshe's magic didn't impress them. Moshe responds למתא ירקא, ירקא שקול, to a place where vegetables are abundant that is where you bring your vegetables to sell. Rashi explains that the entire dialogue was silly and pointless. Since they challenged Moshe with a silly parable, he responded in kind. The message in Moshe's statement seems to be that where magic is popular, it is appreciated. The Maharsha explains that they specifically chose a parable of straw which is all the same. They were indicating to Moshe that his magic was no better than theirs. To that Moshe responds with a parable of vegetables which are all different grades and qualities, indicating that the signs he was preforming were well beyond their capabilities.

I would like to suggest an alternate approach to the conversation. The concept of bringing something unnecessary, such as coals to new castle (known as a major coal exporter), is foolish only if the goal is to sell your coal. However, if the goal is not to peddle your own wears but to show contrast in order to undermine what is already there, it is very logical to bring a higher form of the same. Their argument to Moshe is that he won't be able to use his magic to convince the Jews or Pharoh that he is an agent of G-d because it is like bringing straw to עפריים - a city that thrives on straw. To that Moshe responds that he doesn't need miracles to convince the Jews of Hashem. The Jews inherently will believe that he was sent by Hashem to take them out as promised, but they are being fooled by the magic of the Egyptians. Therefore, Moshe responds that he is bringing his high grade vegetables into a place that has low grade vegetables (as the maharsha explained), with the goal of undermining their magic. The magic of the Egyptians was the curtain blocking their vision from seeing Hashem. Once Moshe is able to show that their magic isn't special, he removes the curtain and enables them to clearly see him as the shaliach of Hashem.

Menachos 83b - Omer and Shtei HaLechem from Old Grain

The mishna says that the only two korbanos that MUST be from new grain and from E.Y. are the korban omer and shtei ha'lechem. The gemara says that the mishna is against the Tanna of the Braisa who allows that there is a mitzvah to bring the omer and shtei ha'lechem from new grain, but if they are brought from the old grain, they are kasher. There are a few conclusions that we can draw from this gemara. 1. All agree that ideally the omer and shtei halechem should be from the new grain. 2. The machlokes between the braisa and the mishna is whether the omer and shtei halechem brought from old grain would be a valid korban (braisa), or invalid (mishna). 3. There is no distinction between the omer and shtei ha'lechem, if one is valid from old grain then the other is also valid.

These seemingly obvious conclusions make the Rambam very difficult to understand. The Rambam writes about this din in 3 places. In Hilchos Issurei Mizbei'ach (6:15) he copies the language of the mishna implying that both omer and shtei halechem MUST be from new grain of E.Y. However, in Hilchos Temidin U'musafin, in the context of shtei ha'lechem (8:2) the Rambam writes - שתי הלחם אינן באין אלא מן הארץ ומן החדש שנאמר ממושבותיכם תביאו לחם תנופה, לא מצאו חדש יביאו מן העליה. The Rambam holds that shtei ha'lechem would be valid when brought from old grain. Yet, one perek earlier in the context of korban omer, the Rambam writes (7:8) that the omer must be brought from Eretz Yisroel but makes no mention of the requirement of being from the new grain. Furthermore, the Ra'avad makes a strange comment on the Rambam who permits the shtei halechem to be brought from old grain when no new grain is available - הלכה זו בהפך. It is very unclear what is bothering the Ra'avad. Perhaps the Ra'avad understands that it is more likely to permit grain from outside E.Y. since we hold that there is an issur chadash even in chutz la'aretz, rather than permit using old grain.

The Kesef Mishna struggles with the Rambam and suggests (2nd approach) that the Mishna holds that both omer and shtei halechem lichatchila must be brought from new grain, but bidieved can be brought from old grain. The tanna of the braisa holds that there is a distinction between omer and shtei ha'lechem - shtei ha'lechem even lichatchila can be brought form old grain and is only a mitzvah min ha'muvchar to be brought from new grain, whereas omer lichatchila must be brought from new grain. This approach understands that there is a difference between the terms "mitzvah" and "lichatchila". The term mitzvah implies that it is ideal but not necessary, whereas the term lichatchila implies that it is necessary but not essential to the kashrus of the korban. Therefore the Rambam would hold that we pasken like the braisa that the omer lichatchila must be brought from new grain, whereas shtei halaechem it is only ideal but can be brought from old grain. According to this approach, the tanna of the mishna can hold that both the omer and shtei ha'lechem lichatchila must be brought from new grain, and only bidieved can be brought from old grain - the Rambam paskens like the mishna. This is also the approach of the Maha'ri Kurkos, there are 3 levels: mitzvah min hamuvchar, lichatchila and bidieved. The only arguement between the braisa and the mishna is whether the din of bringing from new grain is lichatchila or just ideal, but all agree that if no new grain is available, it can be brought from old grain.

In the question and answer of the gemara, the gemara asks on the braisa how we permit the omer and shtei halechem from old grain - what do we do with the pasuk of ראשית, to which the gemara answers that is only l'mitzvah. The gemara then asks what about the pasuk by shtei halechem which says מנחה חדשה implying new grain, and answers that it is coming for something else. When the gemara initally asks from the pasuk of ראשית it isn't clear if the gemara is asking from the pasuk by the omer - ראשית קצירכם, or from the pasuk by shtei ha'lechem - קרבן ראשית תקריב. According to the approach of the kesef mishna, the gemara which asks from ראשית and answers that it is only l'mitzvah has to be speaking about the shtei halechem which lichatchila can be brought form old grain, but omer is not just l'mitzvah, it must lichatchila be brought from new grain. Similarly, Tosafos (bottom of page) seems to understand that the question is from shtei halechem because Tosafos understands that חדשה is emphasizing what we learn from ראשית and the repeat should be me'akeiv. However, according to the kesef mishna the repeat should only tell you lichatchila (since the first time is l'mitzvah), which is not like tosafos who understands that the repeat is to tell you it is me'akeiv. Rashi in the k'sav yad explains that the question from ראשית is both by shtei halechem and omer, to which the gemara is answering that it is only l'mitzvah - against the approach of the kesef mishna.

Tosafos d.h. masninisin, is quoted by the ma'ahri kurkos on the Rambam as holding that the mishna permits both the omer and shtei ha'lechem to be brought bidieved from old grain, implying that the braisa holds that even lichatchila it can be brought from old grain, just not l'mitzvah (which is like his approach and the kesef mishna approach in the Rambam). However, he seems to have a completely different girsa in Tosafos. According to our girsa, Tosafos seems to be saying the opposite. Tosafos says that the language of the mishna אינן באין אלא מן החדש is does NOT imply just lichatchila, which is against the braisa that holds it is only lichtachila. Tosafos seems to hold like rashi (k'sav yad) that there are only 2 categories: 1. l'mitzvah = lichatchila, 2. bidieved.

Menachos 77b - Shiur of Challa

The gemara discusses the amount of "teruma" that needs to be taken from the Todah breads and contemplates learning out the amount from terumas ma'aser. The gemara suggests learning out from challah which is also called teruma, to which rashi explains that the shiur would be 1/48th. Both Rabbeinu Gershom and the kesav yad of rashi explain that it would be 1/24th [This is not a consequential difference since the shiur for challa is 1/24th for a ba'al habyis and 1/48th for a nach'tom. The Nodeh B'Yehuda suggests that according to the Rambam in pirush hamishna the real shiur for challah is 1/48th, just that the women baking will tend to be cheap and if we tell her 1/24 she will at least give 1/48th - that is why rashi picks the number 1/48]. The Nodeh B'yehuda (tinyana y.d. 201) asks that challah doesn't have a shiur according to the Torah, similar to Teruma gedolah which has no shiur. Since the shiur of 1/48 is only Rabbinic, how can the gemara suggest to learn out that the shiur of the Todah breads will also be 1/48?

The Nodeh B'Yehuda suggests something that "no commentary or posek had already said". The mitzvah of challah contains two parts. One is to remove the status of tevel on the dough thereby permitting it to be eaten. The second is the aspect of gifting it to the kohein. The first aspect has no shiur, similar to Terumah where even the smallest amount renders the remainder chulin. But, the shiur of 1/24 or 1/48 is a Torah obligation as the minimum amount to be given to the kohein. However, the shiur of 1/24 is the minimal amount of the minimum amount that is chayev in challa (isaron), that is necessary to be considered a "giving" to the kohein. On a Torah level it wouldn't matter whether one is kneading 1 Isaron or 50 Isaron, the amount that must be given to the kohein is the same - 1/24 of an Isaron. The Rabbonon then came along and required that one give 1/24 of whatever amount they are baking to the kohein. The son of the Nodeh B'yehuda elaborates about his fathers opinion and writes that although there are two parts, they must go together. One cannot separate a tiny amount to be matir the dough to eat and then separate 1/24 to give to the kohein. One must separate initially 1/24th in order to fulfill the mitzvah properly, but if they had already separated a tiny amount, there is no way to add on to that amount and properly fulfill the mitzvah. According to this approach, if one would separate a tiny amount to be given to the kohen, it is a מעוות שלא יוכל לתקון and at the time of separating they are inevitably in violation of the mitzvah to give a proper amount of challah to the kohein.

The Mitzpeh Eisan says that this peshat has already been said by the Tosafos Rid in Kiddushin 58.

Menachos 75b - Shehechiyanu on Mitzvos for First time

The gemara says that if one was bringing a korban mincha in Yerushalayim they make shehechiyanu. Rashi explains that we are speaking about a koehin who has never before brought a korban mincha or at least never brought this type of korban mincha. According to Rashi the gemara is being mechadesh that one make a bracha of shehechiyanu on their first time fulfilling a mitzvah. Tosafos says that the reason for making the shehechiyanu is not because it is his first time but because the kohanim were divided into mishmaros and batei avos so that each kohein would only do avoda twice a year. Tosafos holds that bringing korbanos is considered a mitzvah that comes m'zman l'zman and is worthy of shehechiyanu.

There is a discussion in the Rishonim whether one makes a bracha on the mitzvah of kisuy ha'dam (covering the blood when schechting a bird or chaya). According to Tosafos this gemara would not be a source for the bracha on kisuy ha'dam because you would only make shehechiyanu on mitzvos that are somewhat dependent on the calendar and therefore come m'zman l'zman. However, according to Rashi this gemara would set a precedent for making a shehechiyanu the first time that one fulfills a mitzvah. The Shach (y.d. 28:2) quotes the rokeach who says based on this gemara that the first time in one's life that they fulfill any mitzvah, they make shehechiyanu. The shach points out that our minhag is not to make a shehechiyanu the first time we fulfill a mitzvah from the fact that we don't make shehechiyanu on tzitzis and tefillin. He therefore argues on the Rama who says to make shehechiyanu the first time doing kisuy ha'dam. The tzvi la'tzadik justifies the position of the Rama. The Rama holds like Rashi/Rokeach that we make a bracha the first time performing a mitzvah, so long as it is fulfilled the first time as an adult. Therefore, tzitzis and tefillin which people usually begin before bar mitzvah, they don't make a shehechiyanu when they are pre-bar mitzvah, but also don't make it upon becoming bar mitzvah since they have already done the mitzvah before. The Gilyon MaHarsha (gemara) asks from kiddushin and mezuza (which are performed the first time as an adult) and still we don't make shehchiyanu. The Pri Megadim holds that since it is a safeik (according to Tosafos we don't have a source for making a shehchiyanu the first time performing a mitzvah), one shouldn't make shehechiyanu the first time performing a mitzvah.

Menachos 72a - Harvesting Pushing Off Shabbos

Tosafos 66a writes that if one forgot to count sefiras ha'omer at night, the be'hag holds that they can count by day with a bracha. Tosafos attempts to support that bidieved one can count by day from the mishna 71a that the mitzvah of harvesting is at night, but bidieved can be by day. Tosafos quotes Rabbeinu Tam that since we pasken that harvesting pushes off shabbos, we are forced to say that harvesting cannot be done by day (the assumption is that if it can be done the day after the night of the 16th it can also be done the day before - tosafos 72a). Therefore, we don't pasken like the mishna that harvesting by day is kasher, rather we pasken like the mishna in megilla that any night mitzvah cannot be fulfilled during the day.

Tosafos understands from the sugya 72a that the two halachos of 1. harvesting can be done by day (even the day of the 15th or 14th), and 2. harvesting pushes off shabbos, cannot both be correct. The gemara 72a explains that if the harvesting is kasher when done by day, even if it is bidieved, we cannot push off Shabbos just to fulfill the ideal of harvesting at night. However, the Rambam (Temidin U'musafin 7:6-7) paskens that harvesting the omer pushes off shabbos, yet paskens that if done by day it is kasher bidieved (as the mishna 71a and braisa 72a seem to say). The Shach in Hilchos Milah (y.d. 262) asks on the Rambam that his rulings contradict the gemara which clearly states that if it can be done before shabbos, it doesn't push off shabbos - the notion of pushing off shabbos just to fulfill the mitzvah min hamuvchar is rejected by the gemara? Based on this, the Shach proves that based on the sevara of the gemara that even a bris mila which pushes off shabbos, would not push off shabbos if it could be done before shabbos. The ideal fulfillment of a mitzvah doesn't push off shabbos, unless the mitzvah will be entirely lost. Based on the fact that milah pushes off shabbos, the Shach rejects the p'sak of the Rama who says that mila is kasher even if done before the 8th day. The Aruch HaShulchan points out that the halacha of ketziras ha'omer doesn't prove anything about milah. He explains this based on Tosafos on the bottom of 72a that by mila the gezeiras hakasuv of b'yom - even on shabbos, teaches that even if it can be done before it would push off shabbos. It is only by harvesting the o'mer where the fact that it pushes off shabbos is learned from korban tamid that Tosafos explains that if it can be done before shabbos it wouldn't be similar to Tamid and we couldn't learn from there that it pushes off shabbos.

To answer the question on the Rambam, both the Beis Halevi (teshuvos 1:38) and the Aruch Hashulchan (y.d. 262) explain that the Rambam had other gemaras to rely on that assume that even the ideal method of performing a mitzvah can allow shabbos to be pushed off, even though it could have been done prior to shabbos. Since both harvesting on the night of the 16th and mila on day 8 is the ideal way to perform the mitzvah, it pushes off shabbos. Based on the Rambam that harvesting is kasher by day, Rabbeinu Tam has no proof against the Behag and counting the omer can also be by day.

לכאורה יש קושיא גדולה על הנחת הגמרא. יש כאן ב' דיונים, חדא אם מקיים מצות קצירה והשני אם כשרה לקרבן העומר. והנה, כיון דמצות קצירת העומר דוחה שבת, היה מסתבר לומר דכל שאפשר לקיים מצות קצירה לפני השבת אינו דוחה את השבת, ורק כשאי אפשר לקיים מצות קצירה קודם השבת דוחה את השבת. אבל אין זה מקושר להא דאם נקצר ביום כשרה, שהרי אפילו אם היה כשרה להביא ממנו קרבן עומר, אילו לא מקיים מצות קצירה היה ראוי לדחות את השבת דמצות קצירת העומר דוחה את השבת. וא"כ היה אפשר לפרש כוונת הרמב"ם שאם קוצר ביום אינו מקיים מצות קצירה מש"ה מצות קצירת העומר דוחה את השבת, והא דכתב הרמב"ם שאם נקצר ביום כשר, היינו שכשר להביא ממנו קרבן עומר ולאו משום שבדיעבד מקיים בזה מצות קצירה. אמנם בגמ' לא משמע כן כלל, שהרי בגמ' קאמר דאי ס"ד נקצר שלא כמצותו (כגון ביום) כשר, אמאי דחי שבת, נקצריה מערב שבת, אלא מדדחי שבת ש"מ נקצר שלא כמצותו פסול. הרי בהדיא תלה הגמ' דין דחיית שבת בכשרות ופסלות להביא ממנו קרבן עומר, ובאמת היה מסתבר שיהיה תלוי אם מקיים בזה מצות קצירה והכי הול"ל דאי ס"ד שבנקצר ביום מקיים מצות קצירה עכ"פ בדיעבד לא הו"ל לדחות שבת, א"ו אינו מקיים מצות קצירה, אבל לא הו"ל לתלות דחיית שבת בכשרות ופסלות. איברא, שהיה אפשר לפרש דקים להו לחז"ל דכל שמצות קצירה הוא חלק ממצות העומר, וכל שאינו מקיים מצות קצירת העומר, נפסל להביא ממנו קרבן העומר. לפיכך קים להו בפשיטות דהא דיצא ולא יצא במצות קצירה תלוי בכשרות ופסלות להביא ממנו לעומר, דאם יצא כשר לעומר ואם לא יצא מצות קצירה פסול לעומר. אמנם זה לא יתכן, שהרי במתניתין עא ע"א תנן מצות העומר לבא מן הקמה, לא מצא יביא מן העמרים. רש"י פירש דמצות להביא מן הקמה שתהא קצירה לשמה ומשמע שבזה מקיים מצות קצירה, אבל אם לא מצא קמה משום שכבר נקצר הכל שלא לשם מצוה או ע"י נכרי באופן שלא קיים מצות קצירה, מ"מ יביא העומר מן העמרים. אלמא שאין מצות קצירה חלק יסודי של מצות העומר, ואף בלי קיום מצות קצירה יכול להביא ממנו העומר. וא"כ חזרא קושיין לדוכתיה על הש"ס, אמאי תלה דחיית שבת בכשרות ופסולת של העומר, הו"ל למתלי דחיית שבת בהא דאם אפשר לצאת מצות קצירה כשקוצר מבעוד יום. ואפשר לומר דס"ל להש"ס דבאמת אין מצות קצירה דוחה שבת אלא מצות הבאת העומר דחי שבת, ולכן הכל תלוי אם כשר או פסול להביא ממנו קרבן העומר. וקאמר הש"ס דאילו היה כשר לעומר כשנקצר ביום, אין הכרח לדחות שבת כדי להביא העומר וע"כ לא דחי שבת, אבל אם נקצר ביום פסול ורק בליל ט"ז כשר, ע"כ דחי שבת כדי להביא ממנו קרבן העומר למחר. ויש להביא סמך לזה, דבגמ' עא ע"א יליף דדוחה את השבת מדכתיב "תקריב" ואפילו בשבת, ולכאורה קמיירי בקצירה (דלא כמו שדחק התוס' דקמיירי בהקרבה) ויליף מקרא ד"תקריב" אלמא דעיקר ההיתר לקצור בשבת הוא משום מצות הקרבת העומר ולא משום מצות קצירה. היוצא מדברינו שבאמת אינו ברור לי מקורו של הרמב"ם לדחות גמ' ערוכה. מ"מ יסוד המח' בין הנחת הש"ס והנחתו של הרמב"ם, שהש"ס סובר דמצות הקרבת העומר דוחה שבת אלא שבדרך כלל אין הכשר מצוה דוחה שבת, וזה חידוש של מצות קצירה דדחי שבת כדי להקריב ממנו העומר. ולפי"ז אם היה אפשר להקריב בלא דחיית שבת אין מצות קצירה דוחה שבת. אבל הרמב"ם סובר דמצות קצירה דוחה שבת כמו מצות הקרבה, ואע"פ שאפשר להקריב מן העמרים, כיון שמבטל בזה מצות קצירה דחינן שבת כדי לקיים מצות קצירה כראוי. ואכתי צ"ב יותר

שוב מצאתי בשפת אמת שכתב לפרש דברי הרמב"ם ממש כמו שכתבתי שכוונתו דכשר להביא העומר ממנו אבל לא קיים מצות קצירה, ודחאו

Menachos 70a - Harvesting Before the Omer

The Mishna says that one cannot harvest before the Omer (according to some girsa'os it should say before pesach). The Rambam (Hil. Temidin U'musafin records this halacha by saying

אסור לקצור בא"י מין מחמשת מיני תבואה קודם לקצירת העומר שנאמר "ראשית קצירכם" שיהיה תחלה לכל הנקצרים

The Rambam clearly holds that this halacha is limited to harvesting inside Eretz Yisroel. He also clearly writes that the heter to harvest is not dependent on the bringing of the korban o'mer, rather on the harvesting of the o'mer. Although the Kesef Mishna asks that the gemara 70b implies that one cannot harvest before the bringing of the omer, the lechem mishna explains that the Rambam's ruling of it being dependent on the harvesting of the omer is clear from Rashi 70b that harvesting is already permitted on motzei yom tov, immediately after the harvesting of the omer.

However, it is unclear whether this prohibition applies even in E.Y. after the destruction of the beis hamikdash when there is no longer a korban omer. The Sha'ages Aryeh (chadashos 8) explains that the Rambam holds that it applies nowadays as well, since he doesn't limit the prohibition by saying that it only applies with a beis hamikdash. Obviously, there isn't any harvesting of the O'mer nowadays, but the sha'agas aryeh holds that it would be assur until the morning of the 16th since the omer was able to be harvested all night after the 16th. The main proof of the sha'agas aryeh that the prohibition to harvest in E.Y. applies even when there is no beis hamikdash is that Tosafos in Pesachim 56a explains that the people of Yericho (mentioned in the mishna 71a) who harvested before the omer. The Sha'agas Aryeh understands from the juxtaposition to בית השלחין that the heter to harvest before the omer is that it is grain unfit for the o'mer, implying that otherwise it would be assur. Tosafos in Pesachim writes that the "anshei yericho" was after the destruction of the beis hamikdash, implying that even after the destruction there was an issur to harvest before the morning of the 16th from any grain that was technically fit for the korban omer. In the next siman (9) the sha'agas aryeh goes on to discuss whether if one were to harvest before the omer, the grain would be forbidden to eat.

The Rashash doens't mention the sha'agas aryeh, but quotes from the mishkanos ya'acov (y.d. 64) who also held that the prohibition to harvest before the 16th of Nissan applies nowadays. The Rashash aruges and says that since the pasuk makes it dependent on the harvesting of the omer, it will only apply when there is an omer to harvest. Tosafos 70b explains that the machlokes in the gemara between R. Yona and R. Yossi bar zavda whether it is assur until the omer is brought or until the omer is harvested, is speaking about the prohibition to harvest prior to the omer (not the issur to eat chaddash, as rashi explains). According to Tosafos approach, the conclusion of the gemara is that harvesting is assur until the harvesting of the omer, which implies that the prohibition is only when there is an omer to harvest for.

Menachos 69b - Ma'aseh Nissim

The gemara asks a strange question about whether wheat that falls from the sky can be used for the שתי הלחם that is brought on Shavuos. The gemara explains that the fundamental question is whether the requirement to bring the שתי הלחם from מושבותיכם means that it must be brought from produce of Eretz Yisroel, or is just to exclude using grain grown in chutz la'aretz. Meaning, grain that is not grown in E.Y. but is also not grown in chutz la'aretz would fall under this question. This gemara understood this question to be merely a theoretical, but nowadays is very practical. Hydroponics which is the ability to infuse water with nutrients that are typically found in the soil to provide a source from which the plant can draw it's nutrients, would seemingly qualify as produce not grown in E.Y. or chutz la'aretz.

Rashi and Tosafos try to explain the case of "wheat falling from the clouds". Rashi says that if a cloud would swallow a boat full of wheat and ascend, it could rain wheat. Tosafos doesn't take issue with that being a possibility, but says that if we are speaking about naturally grown wheat then the fact that it was brought up in a cloud shouldn't be relevant. Had it been wheat that was grown in E.Y. it would be usable for the shtei halechem, and if it was wheat grown in chutz la'aretz then it isn't usable. Therefore, Tosafos says that we are speaking of miracle wheat that initiated from the cloud and wasn't grown down on the land.

The Mitzpeh Eisan asks in the name of the minchas kohein that miracle wheat shouldn't be acceptable as a korban mincha because only food that is permitted to be eaten can be used - ממשקה ישראל - מן המותר לישראל, and miracle food is not allowed to be eaten like the gemara says in ta'anis that it is forbidden to benefit from something produced by a miracle? The Mitzpeh Eisan answers the question that the concept of not benefiting from a miracle isn't an issur, it is merely a middas chasidus. He then proceeds to prove from various places that there is no actual prohibition to benefit from a miracle, and therefore this wheat would be usable from the shtei halechem.

It seeems to me that the mitzpeh eisan may have overlooked a Rashi in ta'anis who writes this explicitly. The gemara in Ta'anis 24b speaks of a miracle where sand turns to flour, and on 25a speaks of a fire that is produced by a miracle that was used for havdala. Rashi 24b writes -

אמר להו מעשה נסים הוא, ובמה דאפשר להתרחק ממעשה נסים יותר טוב ונכון

Rashi clearly writes that the idea of not benefiting from ma'aseh nissim is "proper" but certainly not an issur. Regarding the use of fire produced by a miracle for havdala, rashi says that they lit another candle from that one therefore it wasn't considered using the fire of a miracle. It isn't so clear why rashi has to say that unless he holds that one must actually derive benefit from the havdala candle (we usually assume that we don't need to benefit but we show that we are able to benefit from the light).

Menachos 68b - Chodosh B'zman Ha'zeh

The gemara cites various opinions as to when it would be permitted to eat chodosh nowadays, depending on whether it is d'oraysa, and depending on the institution of R. Yochanan Ben Zakai who held that the entire day of the 16th is assur. The gemara explains that the opinions who aren't concerned for the sfeika d'yoma must hold that the issur chodosh in chutz l'aretz is only d'rabonon, therefore mi'safeik it is mutar. However, the final opinion in the gemara is that chodosh is assur m'doroysa on chutz la'aretz and is assur without a beis hamikdash the entire day 16, therefore is assur nowadays until nightfall after the 17th of Nissan. This is paskened in Rambam and Shulchan Aruch at the end of hilchos pesach. The Rambam refrers to the issur through the 17th as "divrei sofrim" rather than a s'feika d'yoma because nowadays we are experts in when the actual rosh chodesh is and only maintain the original system based on מנהג אבותינו בידינו. The Rambam seems to refer to this "minhag" as divrei sofrim.

The Mordechai (Beitza, perek 1) asks that we have a rule that דבר שיש לו מתירין is assur even when it is just a safeik. Why does the gemara have to say that chodosh is assur on the 17th since it is d'oraysa and we are concerned for the sfeika d'yoma, even if it's only d'rabonon we should be concerned for the sfeika d'yoma? He answers that since the issur comes again the next year, it isn't considered a דבר שיש לו מתירין. The Achronim ask on this Mordechai that the grain which became mutar this year will never become assur again, therefore we should consider the grain of this year a davar she'yesh lo matirin and say that it is assur m'safeik, even if the safeik is d'rabonon? The Cheshek Shlomo (R. Shlomo Vilna) answers that the safeik of chodosh is not on the grain, rather it is a safeik on the days whether the 17th is still assur to eat chodosh. Had the safeik been a safeik on the grain, it would not be considered a safeik that is חוזר לאיסורו but not that the safeik is on the day, it is considered a safeik that will return next year until we start sanctifying the new moon through witnesses. The concept of דבר שיש לו מתירין only applies when the issur happens to occur but not when it is an established system that will return year after year. Therefore, even though the actual grain will never become assur, it is regarded as a דבר שיש לו מתירין.

Menachos 66a - Agenda of Baytusim

The mishna on 65a explained that they would harvest the omer in large groups reciting responsive statements to show that they are not in line with the baytusim who had an agenda to make shavuos on sunday. The gemara 65a on the bottom indicates that the distortion of the baytusim didn't stem from their misinterpretation of the verse ממחרת השבת, rather they had an agenda to make shavuos on Sunday and therefore misinterpreted the verse.

Why did the baytusim want shavuos to be on Sunday?

It seems that they were primarily be creating a separation between the holiday of shavuos and the day of receiving the Torah. Being that the Torah never connects shavuos with matan torah, they had the ability to claim that the two have nothing to do with one another. If it were a celebration of matan Torah it must always be 50 days after the second day of pesach, but if the 50 day count only began from the next shabbos, it would not fall on the day of matan torah.

The Chasam Sofer (O.C. 141) raises the question - why didn't they want to celebrate matan torah? The Baytusim also believed in the written Torah so what was the point of creating a disassociation with shavuos? The Chasam Sofer explains that according to our tradition, the written Torah was accepted through na'aseh v'nishma, but the oral Torah had to be forced upon us כפה עליהם את ההר כגיגית (shabbos 88a). It doesn't seem right to celebrate a Torah that was forced upon us, therefore we celebrate the willful acceptance of the written Torah. But, the baytusim who didn't believe in an oral torah must have understood that he force was on the written Torah, so there is nothing to celebrate. That is why they felt that there shouldn't be a holiday associated with receiving the Torah. The approach of the C.S. strange because it is likely that the baytusim wouldn't have had the "tradition" that any torah was forced upon us and would have assumed that we accepted the "only" torah which was the written one by saying na'aseh v'nishma.

I would like to suggest another approach. The gemara 65a explains that in the conversation between R. Yochanan Ben Zakai and the Baytusim they made a claim that Moshe on his own tried to make shavuos back to back with shabbos so that klal yisroel can celebrate for two days. This indicates that their primary intention was to say that Shavuos was not a divine holiday, rather it was an institution of Moshe Rabbeinu. Why did they want to say this? I explained in my sefer Mayim Rabim (pg 205) that the events of matan Torah where Moshe added an extra day, was an implementation of the power of the Rabbonon to interpret the Torah and innovate law on a d'oraysa level. The Baytusim obviously couldn't accept that the Torah handed this level of power to the Rabbonon. They therefore would assume that Moshe's additional day was something he did on his own, without divine intervention. The Baytusim follow through with this conspiracy theory by saying that Moshe did things on his own, without G-d telling him to do so. They were adamant that shavuos should be on Sunday to indicate that it was Moshe's doing, not G-d, which would support the notion that there was never any power given to human beings at the time of matan torah.

Menachos 65b - Counting Verbally

The gemara understands from the pasuk וספרתם לכם that there is an obligation on each and every person to count sefiras ha'omer. Tosafos contrasts this to the mitzvah of counting to the yovel year which is only a mitzvah on the beis din, and question whether it is an obligation on the beis din to verbally articulate the count with a bracha as we do by sefiras ha'omer. However, for the counting of a zava Tosafos writes that there wouldn't be a bracha since it can get messed up if she would begin to bleed. Tosafos seems to be saying that we wouldn't make a bracha on something that is not predictable and within a person's control such as the bleeding of a zava, but it would still be fundamentally the same as the counting of sefira and yovel - to verbally articulate the count. The Pischei Teshuva (Y.D. 196:4) cites the Shl"a who requires a verbal articulation of the 7 clean days of a zava. The Shl"a understands from Tosafos that the bracha isn'e made, but the requirement to count is fundamentally the same as the counting of the omer and yovel. However, the Node B'yehuda argues as does many others, that the counting is fundamentally different and wouldn't require a verbal articulation. The Sidrei Tahara (196:18 d.h. mihu) writes that although one doesn't need to verbally articulate the number of days, they must have a concious thought of the number of days and consider them to be counting toward he clean days.The question is, what is the indication that the counting of a zava should be fundamentally different than the counting of sefira and yovel? To answer this question, the Sidrei Tahara quotes the Re'ah who writes תשובת דבר זה מה שהקדמתי לך בראש ספרי כי כל ענין התורה תלוי בפירוש המקובל. Meaning, we must follow the oral interpretation and cannot figure it out from the text. He points out that we find a similar discrepancy regarding the term זכירה. By yetzias mitzrayim we have a tradition that it must be verbally articulated but not by miriam. The Sidrei Tahara himself suggests a hint in the pasuk for the distinction of a zav and zava. By a zav and zava it says וספר לו and וספרה לה - why would the Torah have to point out that they are counting for themselves? It must be to teach that they are trusted on the bedika, rather than demanding a verbal count. The Meshech Chochma (Emor) has a different approach to explain the difference. Normally when we refer to a count, the purpose is to separate the days that are counted and infuse them with a special status. For example by a zav and zava it is a status of clean days that is acheived by being clean, it is not automatic. However, in the context of sefiras ha'omer and yovel where the days pass automatically and there is nothing specific to do, the requirement to count must mean a verbal count because there is no other possible demand. This explains the pasuk of וספרתם לכם ממחרת השבת וכו but the pasuk of תספרו חמשים יום is more similar to the "count" of zav and zava by giving that day a special stature, and not demanding a verbal count. תספרו חמשים יום means that day 50 is yom tov and is distinct in it's nature than the days that proceeded it. With this we are able to easily answer Tosafos question (d.h. kasuv) - why do we only count 49 days and not 50? The answer is that whenever we can explain the count to refer to a special status i.e. clean days or yom tov, we don't assume it requires a verbal count. The Meshech Chochma also explains the gemara on the bottom of the page - ואם תאמר ממחרת שבת בראשית, פעמים שאתה מוצא נ"א ופעמים שאתה מוצא נ"ב... meaning that sometimes the special day which is the "counted" day, will not be on day 50, rather anywhere between 50-56.

Menachos 64b - How Long did Mordechai Live?

The gemara tells about a civil war between the kings that descended from the chashmonaim when they were trying to capture Yerushalyim and were advised to send a pig up the basket that we used to import the korban tamid. During that period there was no wheat or barley anywhere in the vicinity of Yerushalayim. The Maharsha explains that they were making a concerted effort to be mevatel the korban tamid, omer and shtei ha'lechem. The gemara tells that Mordechai was able to figure out how to communicate with a mute person who was able to tell him through sign language where there would be hidden areas that the troops did not destroy from which they can bring the korbanos. To put things in historical perspective, the chanuka story occurred 206 years before the destruction of the 2nd beis hamkidash. The chashmonaim were all killed out by Herod who took control 103 years before the destruction of the beis hamikdash (avoda zara 9a). It would seem that this story was at the end of the chashmonaim reign - approximately 110 years or so before the destruction. This is almost 100 years after the chanuka story and over 300 years after the purim story (2nd beis hamikdash stood for 420 - גדול יהיה כבוד הבית הזה האחרון מן הראשון).

Rashi writes that Mordechai mentioned in the gemara is the same Mordechai from the time of achashveiros, who was also called פתחיה in the mishna in shekalim and בלשן in nechemia. Tosafos says that it would be strange to suggest that he lived so long and therefore writes that people who were appointed to leadership due to their knowledge and intellect were named after Mordechai. The Ya'avetz supports Rashi - Is it so strange to say that yiras hashem increases lifespan and posits that in the generation of the שיורי בית ראשון, those who remained from the first beis hamikdash, this wasn't such an anomaly.

It seems to me that the biggest problem with suggesting that it was the same Mordechai is that we usually assume that by the time of the chanuka story there were no nevi'im left around. It certainly seems this way from Rashi in Ta'anis 28b who explains that Hallel on chanuka is called a d'oraysa because it was included in the original takana of the nevi'im (mentioned in arvei pesachim) to say hallel every time the Jews are saved from danger. Rashi seems to be okay with takanas nevi'im being called d'oraysa but is troubled that there were no nevi'im at the time of chanuka. To answer this Rashi explains that the framework of saying hallel on being saved from and existential threat to the nation was instituted hundreds or even thousands of years before the chanuka story - just that the chachamim at the time considered this the miracle of chanuka to fit that framework. Yet, we know that Mordechai was from the list of 48 Nevi'im as rashi writes in megillah and together with Esther wrote the Megillah.

Menachos 64a - Intent vs. Action

The gemara raises a question if one would shecht two animals for a korban on shabbos when only one is needed and then find a weakness in the korban that makes it inferior (albeit still kasher) which retroactively entitles the shechting of the second one (since the gemara concluded that due to הקריבהו נא לפחתך one is allowed to shecht a better animal even if the first was acceptable), is this a violation. Conceptually, it is a situation where one intended to violate a prohibition (yet it is accidental as rashi explains because they thought it was permitted and were mistaken), and in the end did not violate the prohibition - do we focus on the intent rendering this a violation or on the action which was ultimately permitted. The gemara says that this is dependent on the machlokes Rabba and Rava where one would throw in a net intending to catch fish, and draw up in the net a drowning child together with the fish. The concept is the same, the action was permitted but the intent was to do something forbidden.

In analyzing the case of the net to catch fish, the gemara indicates that the machlokes is because ultimately fish were caught and a child was also saved. Had the child not been saved, all would obviously agree that he is chayev for trapping fish. The implication is also that had he only saved the child and not succeeded in capturing the fish, all would agree that he is exempt. Meaning, the only reason for Rava to say he is chayev is because ultimately he did an issur of catching the fish. This raises a fundamental question - How is this comparable to the case of the korban where at the end it was realized that the second animal that was shechted was permitted to be slaughtered since the first wasn't ideal? How can the gemara compare the case of the animal where he ultimately didn't do an issur on the shechting of the second, to the case of the trap where he did an issur of catching fish?

The Shita MiKubetzes raises the same question but from another perspective. If one intends to eat non-kosher and "accidentally" eats kosher, he is obviously not chayev since he didn't violate any prohibition. How can Rava consider the person chayev for shechting the second animal? The Shita answers that when one ultimately ate kosher there was no violation of anything, but here he should not have shechted the second since the first was kasher and he couldn't be sure that the second would be any better than the first. With this the Shita explains the connection to drawing the child together with fish in the trap - we consider it to be an issur since his intent was to catch fish and he actually caught fish which is assur, even though the same action for the purpose of saving the child is permissible.

The comparison only makes sense if we assume that the first animal shechted was acceptable but not ideal (had the information been known, it would be permitted to shecht the second). However, when the Rambam codifies this halacha (Shgagos 2:15) he writes that the first animal shechted was found to be a treifa, rendering it completely invalid. According to the Rambam, the act of shechting the second was completely permissible and no prohibition was violated at all. This should be comparable to one he ate kosher thinking it was treif, or spreading a trap intended for fish and rescuing a drowning child (and no fish). According to the Rambam's approach the gemara seems inconsistent in the comparison and we have no understanding of Rava's opinion who holds that you are chayev (Rambam paskens patur like Rabba)?

The Chazon Ish (kodshim, menachos 42:18) explains that the question of the shita mikubetzes about eating kosher when intending to eat non-kosher is not related to this discussion at all. When one does a permitted act, it is irrelevant that his intent was for a forbidden act. But, in the gemara's cases he is not doing a permitted act, he is doing a forbidden act of trapping or slaughtering on shabbos, in a situation where he is entitled to "push off" shabbos (perhaps this is based on the Rambam's opinion that shabbos is דחויה for pikuach nefesh and not הותרה). The Rashash similarly asks from many sources where we see that one is not held responsible for a thought to do an aveira and takes the same approach as the chazon ish - the only point of dispute is when one does an act that is technically an aveira but permitted for a mitzvah purpose. The machlokes between Rabba and Rava is whether the right to do a forbidden act to save a life or for avoda in the mikdash is only when the intent is for that mitzvah. Rava holds that if one isn't intending for the act of mitzvah i.e. saving a life or shechting for the purpose of having a better animal, there is no right to push off shabbos, and he is chayev. Rabba holds that the focus is on the action, not his intent and since the action he did is completely justified, he is not liable. Based on this approach, the fact that the Rambam describes a case where the first animal was a treifa, doesn't change the comparison because the bottom line is that if we follow action it is permitted, yet without intent for the permitted action we consider the slaughtering or the trapping to be a violation of shabbos.

Menachos 63b - Kohein Serving as Agent for Waving

The D'var Avrohom (2:1:4) introduces an interesting sevara. He is discussing the machlokes between the shach (ohr zarua) and darkei moshe whether a father is able to appoint someone as his agent to do mila. The Ohr Zarua and Shach hold that there is no concept of shlichus, rather if the father can't do it himself he has no choice but to forfeit the mitzvah and allow someone else to do it. The D'var Avrohom explains that the concept of shlichus only applies when the mitzvah is only on the sender but not on the agent. The action of the agent can only be attributed back to the sender when the action is not needed by the agent himself for his own mitzvah. However, anytime the agent also has a mitzvah, he cannot be considered to be doing the shlichus of the mi'shalei'ach. A theoretical example would be that even if we would allow shlichus by mitzvas that are incumbent on the individual i.e. tefillin, we wouldn't be able to consider shimon's putting on tefllin as a shaliach of reuven to be as if reuven himself put on tefillin because shimon has his own mitzvah to put on tefillin so the action is grabbed by his own mitzvah and isn't associated with reuven. Therefore, the Shach holds that when the father forfeits his mitzvah of mila either because he can't do it or because he chooses not to, the mitzvah is incumbent upon everyone (the chiyuv on beis din in this context means any Jew who is able to do it). Since the mohel is going to be doing it for his own mitzvah, the action cannot be attributed to being done as a shaliach of the father.

It seems to me that our gemara clearly rejects the sevara of the d'var avrohom. The gemara says that when a korban is sent from overseas the kohein does the waving for the person. The gemara isn't clear whether it means that the kohein does it instead of the person, or actually does it as a shaliach of the person to assist the sender in their obligation of waving. However, Rashi on 61b clearly writes that when a woman or goy send a korban the kohein serves as their "shaliach" to wave it for them (even for semicha we would have made the kohein their agent if not for a special passuk excluding the ability to appoint a shaliach for semicha). This seems to be the gemara's intent also when the korban is sent from overseas - the kohein does tenufa as the shaliach of the sender. Now, the gemara on the top of 61b quoted a contradiction in pesukim whether the kohein does tenufa or the owner does tenufa, and concludes that they do it together since there is a mitzvah on both of them. We see here that even though the mitzvah of tenufa is an obligation on the kohein himself, he cans still serve as an agent of the owner to do semicha for them. This seems to be a strong proof against the sevara of the d'var avrohom who says that when the agent (kohein in this case) has his own obligation, he cannot be an agent of someone else because the action is used for his own obligation and cannot be used for the mi'shaleiach.

Menachos 62a - Waving and Shaking the Lulav

The gemara says that the waving of שתי הלחם together with the two sheep is done in all 6 directions, to symbolize holding back bad winds and dew. Rabba comments that this is the same method of waving that is used by the lulav. Tosafos suggests that this style of waving only applies to the שתי הלחם and lulav which are in some way connected to agricultural needs, but not to the waving of the other menachos. Tosafos quoting Aruch raises a question whether we requirement of the Yerushalmi to wave 3 times in each direction requires outward and inward three times (totaling 6 movements in each direction) or outward, inward and outward (3 movements total). The Aruch cites other places where the gemara leaves this type of issue as a question and therefore concludes - ולא איפשיט, וכיון דלא איפשיט עבדינן לחומרא שלש פעמים בכל אחד ואחד. The Aruch seems to assume that the safeik would require us to be machmir. It is not clear why this would be the case. Even if we consider the concept of waving to be d'oraysa, the gemara says that it is only שיירי מצוה and not essential to the mitzvah. Generally, the concept of ספק דאורייתא לחומרא applies when there is a chance that one did not do the mitzvah, but not when there is a chance that one didn't do the mitzvah in it's most ideal way. Why would we apply the concept of ספק לחומרא to something which is only שיירי מצוה? Perhaps we can derive from here that the concept of ספק דאורייתא לחומרא is not just to be sure that you fulfilled the mitzvah d'oraysa. Rather, even on a kiyum mitzvah of the Torah we would say that mi'safeik one should be machmir to ensure that the mitzvah is fulfilled.

On another point - our minhag is to wave 3 times in each direction. R. Elazar Moshe Horowitz (pinsk) points out that the bavli which demands waving the lulav in all directions doesn't mention 3 times, and the yerushalmi which mentions 3 times doesn't demand in all directions. Therefore, there is no source for the minhag to wave the lulav 3 times in each direction (as we do). Even if we assume that the Bavli and Yerushalmi are in agreement with each other, it would be sufficient to wave 3 times in one directions and then one waving in each direction.

Menachos 61b - Touching without chiba

The Shulchan Aruch (even ha'ezer 20:1) writes that one who does chibuk v'nishuk with any of the arayos and enjoys the kiruv bassar, receives malkus. This is the language of the Rambam who holds that the issur to touch any of the arayos is an issur d'oraysa provided that there is hana'ah from the kiruv ba'sar. The Beish Shmuel (1) says that the Ramban holds that it is only an issur d'rabonon. The Beis Shmuel continues that the Ramaban writes in a teshuva that even when the touching isn't derech chiba (which seems to mean that there is not hana'ah of kiruv bassar), the same machlokes would apply - Rambam would hold it's d'oraysa and ramban will hold that it is d'rabonon. Although the Shach (y.d. 195) holds that even according to the Rambam the issur d'oraysa is only derech chiba, the Beis Shmuel disagrees and holds that according to the Rambam there is an issur d'oraysa even not derech chiba. The achronim (sidrei tahara, kreisi u'pleisi) reject the Beis Shmuel and hold that even according to the Rambam it is only an issur torah when done derech chiba. R. Moshe (Igros Moshe 1:56) mentions that some are lenient to shake hands with women since it is assumed not to be derech chiba, based on the shach who understands that even according to the Rambam it would only be an issur d'rabbonon and perhaps mutar to avoid embarrassment. However, R. Moshe falls short of actually being matir shaking hands with women.

Tosafos quotes a Yerushalmi in the context of the waiving that implies that there is not even a real issur d'rabonon when one touches an ervah in a non-chiba way. Tosafos holds that the standard method of tenufa with the kohein placing his hands "under" the hands of the owner, doesn't necessitate touching because the owner holds the upper part of the vessel and the kohein holds it from the bottom. Tosafos then cites a yerushalmi that implies that the kohein literally puts his hand underneath the hand of the owner. In the context of Minchas Sotah the yerushalmi asks how the korban mincha is waved - ואין הדבר מכוער - isn't it repulsive? The yerushalmi answers that it is done using a cloth, which is rejected because it would create a chatzitza. The yerushalmi suggests that it is done by an older kohein who doesn't have a strong yetzer hora, and then concludes that even if done by a young kohein it is permitted since there is no yetzer horah at that time. Now, if we assume like the beis shmuel's understanding of the Rambam that touching even without hana'ah (not derech chiba) would be an issur d'oraysa, why does the yerushalmi ask "isn't it repulsive?", it should ask using a stronger language, isn't it an issur d'oraysa. Furthermore, how can we permit an older kohein to do it? Where do we find that an older kohein who doesn't have a yetzer horah has less of an issur d'oraysa. It seems clear that there is no issur d'oraysa, and seems that there isn't even a real issur d'rabonon, just that it is repulsive to do an act in the beis hamikdash that would be an issur if one had intent for pleasure.

However, according to Tosafos conclusion that perhaps the Yerushalmi is only addressing inadvertent touching because the kohein is not deliberately touching her (he is merely putting his hands under the vessel and will sometimes accidentally touch her), there would be no proof from the yerushalmi. Perhaps the yerushalmi is only saying that inadvertent touching would be מכוער, but intentional touching even not derech chiba could be an issur d'oraysa.

Menachos 57b - When is it considered baked?

The gemara says that if dry measurements aren't able to give kedushas ha'guf, then the lechem ha'panim couldn't possibly become chometz after it was already kedushas ha'guf. Tosafos asks, perhaps after being baked in the oven to the point of נקרמו פניה - browning on the face of it, the oven can give it kedusha, and if it is then removed it is chometz? Tosafos says that we derive from here that the shiur of נקרמו פניה is considered fully baked and can no longer turn to chometz. Tosafos says that this would be a good indication for matza on pesach being fully baked (presumably this shiur only makes sense at a temperature that is suitable for baking it properly on the inside, but not if the matzah is thick and the oven is very hot so that it will just burn on the outside).

The Shulchan Aruch (461:3) that the shiur to determine that matzah has been fully baked is that אין חוטין נמשכין ממנה - no strings pull when it is broken. The Rama warns that because of this, it shouldn't be removed from the oven early even if it will immediately be returned. The M.B. explains that since it has heated up, if it is removed while still having חוטין נמשכין, it can turn into chametz very quickly. However, if it was removed and immediately returned to the oven, it can be used on pesach but not for the mitzvah of matzah on the first night (m.b. and sha'ar hatziyun 26) - we assume that it is not chometz but isn't considered to be שמורה - it isn't watched from being chometz.

The Sharei Teshuva (also m.b.) cites the nodeh b'yehuda (tinyana 80) who explains that since נקרמו פניה and אין חוטין נמשכין are the same shiur, if one is unsure about one they can use the other to determine. The N.B. says that if the matzah has already cooled זמן מה - for some time, so that חוטין נמשכין wouldn't be a good test - כי בדיקה זו לא שייכה אחר שכבר שהתה זמן מה אחר שמוציאה מן התנור ונצטננה, then one can check for נקרמו פניה to be matir it. However, if it fails both tests, the biur halacha explains that after a shiur mil it is considered definite chometz, not like the magen avrohom who is lenient bidieved.

Regarding the test of חוטין נמשכין, the Mishna Berura (14) says that it only works while warm, not after it cools, citing the Nodeh B'yehuda as his source. The Chazon Ish explains that the N.B. implies that if it is determined to be אין חוטין נמשכים right after cooling it is fine. The N.B. only says that it can't be checked much afterward, but simply cooling doesn't prevent the test of חוטין נמשכין.

Menachos 56b - 57a - Creating Chometz Passively

The Rambam in Hilchos Chometz U'Matza (1:3) says that if one would acquire chometz or make chometz on pesach they would receive malkus since it is considered an active violation of בל יראה ובל ימצא. When learning this Rambam over Pesach, I was troubled by the assumption that one can actively make chometz. It seems that chimutz is a chemical process that occurs by itself, how can one violate the making of chometz by doing an action?

R. Yakov Emded (sheilas ya'avetz, 1:16 - end of teshuva) raises this question on the Rambam. Why would this be considered doing an action? Even if one were to add yeast, it doesn't turn into chometz immediately upon the adding of yeast! This should be similar to a situation of סוף חמה לבא which is considered a grama, not a direct action? He suggests that perhaps the Rambam is speaking of one who causes the chimutz to occur through the heat of his hands, which would be considered an action.

In light of the gemara today, it seems that the Rambam could be understood. The gemara says that by placing yeast on dough and waiting until the chimutz occurs by itself, one would be chayev similar to roasting meat on shabbos where the cooking occurs by itself. The implication of the gemara is that one would even be chayev malkus. The Rambam (hilchos ma'aseh korbanos 12:16) writes exactly that - הניח שאור ע"ג העיסה והלך וישב לו ונתחמצה מאליה לוקה שהנחת השאור הוא המעשה

The Rambam understands that the chiddush of Rav Ami is not merely that one is in violation of baking the korban mincha as chometz, but that it is considered an action worthy of malkus similar to the shabbos violations. The act for which you are chayev is the placing of the yeast on the dough which will inevitably cause the dough to rise. This is considered an action worthy of malkus. Therefore, the Rambam in chometz u'matza who talks about malkus for creating chometz on pesach would also be speaking about placing yeast on the dough. But, if one were to just mix flour and water and wait until it rises, the gemara seems to hold that it wouldn't be considered a significant enough of an action to be chayev malkus for לא תאפה חמץ or בל יראה.

Menachos 56b - Placing a Mum by in kodshim by Grama

The gemara explains that the machlokes between R. Meir and Rabbonon about blood letting a sick kodesh animal is whether one is allowed to put a mum in a hekdesh animal that already has a mum. R. Meir darshen from כל מום לא יהיה בו, that it's even forbidden to put a mum in a ba'al mum, whereas the Rabbonon darshen תמים יהיה לרצון that it is only forbidden m'doraysa to put a mum in an animal that is complete. The gemara says that the Rabbonon darshen the pasuk of כל מום to include a case of grama - one cannot put food on the ear of kodesh animal so that it will be bitten off by a predator thereby causing a mum. Although grama is normally permitted, in this case it will be an issur d'oraysa.

The Minchas Chinuch (287) wonders why the Rambam doesn't explicitly write that causing a mum even indirectly would constitute an issur d'oraysa? The Minchas Chinuch suggests that the Rambam holds like R. Meir that placing a mum in a animal that already has a mum is an issur d'oraysa (he understands this from the Rambam in hilchos bechoros 2:13 who says that when one blood lets a sick animal they can't intend to make a mum, implying that if they would definitely be making a mum it would be assur). Yet, the Rambam holds that there is no malkus (as he writes in hilchos issurei mizbeiach 1:8 since it is only learned from a ribuy of כל). Based on the approach that the Rambam paskens like R. Meir, the Minchas Chinuch suggests that the pasuk of כל מום isn't available to teach grama, therefore the Rambam holds that causing a mum is only an issur d'rabonon, not d'oraysa.

The Minchas Chinuch suggests that even according to Tosafos who paskens like the chachamim therefore holding that grama is assur m'doraysa, may still concur that one would not receive malkus because "we never find that one is chayev malkus for a grama". The Minchas Chinuch seems to understand that the issur is violated by the mum being done to the animal, therefore the placing of food on the ear is just "causing" the violation of an issur. However, it is possible that the gezeiras hakasuv of כל מום which teaches that grama is assur, is essentially saying that the issur is not in the result (i.e. the mum), but rather the issur is to do the action that will likely yield the resule (i.e. placing food on the animals ear). If we assume that the issur is violated immediately, just that it is dependent on the mum being done in the end, it would be similar to baking on shabbos where the placing the bread in the oven is an act worthy of malkus (even though it is dependent on the dough getting baked).

Menachos 54b - Kezayis Shrinking and Growing

The gemara discusses the halacha when one would have a kezayis of issur or tu'mah (which the gemara assumes follows the same rules, to the exclusion of terumah and ma'aser) which shrinks to less than a kezayis and then inflates once again. The conclusion of the gemara is that if one eats issur which begins as a kezayis and then shrinks to less than a kezayis, they don't get malkus since they didn't consume a kezayis. If one eats issur which begins as less than a kezayis and grows to more than a kezayis, they also would not receive malkus. To be chayev for eating a complete shiur of a kezayis it must begin as a kezayis AND end as a kesayis. There is a machlokes when it shrinks and then swells once again to more than a kezayis, and the conclusion is that we don't apply the concept of דחוי to issurim as we do to mitzvos - therefore one who eats it after it swells back to it's original size of a kezayis would receive malkus.

The Rambam הלכות מאכלות אסורות פרק י"ד הל' ד writes:

כזית חלב או נבילה או פיגול ונותר וכיוצא בהן, שהניחו בחמה ונתמעט--האוכלו פטור; חזר והניחו בגשמים ונתפח, חייבין עליו כרת או מלקות. היה פחות מכזית בתחילה, ונתפח ועמד על כזית--אסור, ואין לוקין עליו

The Rambam seems to simply pasken like the conclusion of the gemara. However, the last statement of the Rambam seems strange - היה פחות מכזית בתחילה, ונתפח ועמד על כזית--אסור, ואין לוקין עליו

It seems that the reason it would be assur is because one has eaten a chatzi shiur. The Roghotchover (Tzafnas paneiach) asks why does the Rambam write that if the chatzi kezayis swells to be larger then a kezayis there is an issur of chatzi shiur, but no malkus since even if it doesn't swell that is the din? The simple answer to the question is that after the Rambam teaches that for swelling back to a kezayis it is restored to it's original state and is considered a kezayis, the Rambam has to write that if it never had a shiur of kezayis, then swelling would not give it a shiur of a kezayis. But, if the chiddush was simply to teach that there is no malkus then why would the rambam have to preface that it's assur - of course it is assur as chatzi shiur is always assur?

Menachos 54b - Taking Teruma by Estimation

The gemara discusses whether teruma and ma'asar of dried fruits should be measured based on their present size or on their larger size when they were fresh. The gemara concludes that by Terumah gedola it doesn't really matter because there is no minimum or maximum shiur according to the Torah. However, for Terumas ma'asar which the Torah calls מעשר מן המעשר, the implication is that it must be exactly 10%. Yet, even by terumas ma'aser R. Elazar Ben Gomel says that it is compared to Teruma gedola which can be taken by estimation. Tosafos explains that according to R. Elazar ben gomel the "ma'aser" which implies 10% is a minimum but one is allowed to intentionally increase the amount. Tosafos even raises the possibility that the Rabbonon would agree to R. Elazar Ben Gomel that one may take ma'aser by over estimating, they only argue whether it would be a mitzvah to do so. According to this approach, tosafos explains that the Rabbonon would permit an intentional generous estimation, but wouldn't allow an intentional increase, whereas R. Elazar Ben gomel would hold that one can always intentionally increase even if they realize it is more than 10%.

The Mishna in Avos (1:16) says - ואל תרבה לעשר אומדות. Tosafos understands that this mishna cannot confrom with R. elazar ben gomel because he would allow an intentional increase by ma'aser just as he allows for it by terumas ma'aser, for the same reason that ma'aser is also compared to teruma. However, the Tosafos Yom Tov in avos quotes the maharal that the mishna actually goes with R. elazar ben gomel because the mishna says אל תרבה, meaning that even though one is allowed to take ma'aser by estimation, he should do so as regular practice. This seems to conform with Tosafos that R. elazar ben gomel would allow over estimating even by ma'aser, but would seem to disagree with Tosafos who understands that according to R. elazar ben gomel it is a mitzvah to increase.

Menachos 40b - Tzitzis at Night

Rav Zeira says that the reason for the Rabbonon uprooting the mitzvah of tzitzis on a linen garment is because it would lead to a violation of shatnez on a כסות לילה. Rashi explains that the concern is that one will wear the linen garment with his wool ticheiles even at night when there is no mitzvah of tzitzis thereby violating the prohibition of wearing kelaim even in the absence of a mitzvah of tzitzis. Rashi seems to hold like the opinion of the Rambam that everything depends on actual day and night. All garments are obligated in tzitzis by day and are exempt at night. However, Tosafos (d.h. mi'shum) says in the name of Rabbeinu Tam that the issue isn't dependent on actual day and night, rather a day garment is obligated in tzitzis even at night, whereas a night garment is exempt from tzitzis even during the day. Tosafos explains that even according to Rabbeinu Tam we regard the mitzvah of tzitzis as a time bound mitzvah from which women are exempt because ultimately the time is responsible for determining whether this particular garment is obligated in tzitzis. According to Rabbeinu Tam who considers everything to be dependent on the garment, there is no concern that one will wear a day garment of linen and ticheiles even at night, because according to R"T a day garment at night is obligated in tzitzis. The concern has to be that if we allow one to put ticheiles on a linen day garment, they will also come to put it on a linen night time garment.

Tosafos (d.h. ticheiles) writes that a linen garment with ticheiles can be worn even at a time and even by a person that is not fulfilling a mitzvah (such as a woman). Tosafos here seems to understand that a daytime garment is exempt from tzitzis at night, like rashi and not rabbeinu tam, yet when worn at night there is no violation of kelayim (against rashi).

The Sha'agas Aryeh (siman 30) asks on Rabbeinu Tam from the gemara in brachos which says that in ma'arava they didn't say the entire parsha of tzitzis at night (only the beginning and end) because there is no mitzvah of tzitzis at night. The Sha'agas Aryeh asks that the mitzvah of tzitzis applies by night as it does by day so long as it is a day garment, so we should be saying the parsha of tzitzis at night? One of the commentaries (printed in the back of the gemara) answers that since night garments are exempt, there is a precedent for the parsha of tzitzis being skipped at night - similar to what rabbeinu tam himself says to justify how it is a time bound mitzvah.

Menachos 35b - Hesech HaDa'as in Tefillin

The gemara learns out that one is obligated to continuously touch their tefillin while wearing them to avoid a "hesech ha'da'as", from the tzitz. The gemara seems to make a real kal v'chomer and regards this as a din d'oraysa. The Shita (5) asks, how then is one allowed to daven or read shema while wearing tefillin, since by concentrating on the davening they will inevitably not be concentrating on the tefillin? He answers that in truth it is a violation of hesech ha'da'as from tefillin, but it is permitted based on the concept of עוסק במצוה פטור מן המצוה. Since he is involved in the mitzvah of concentrating on the davening, he is exempt from the mitzvah to concentrate on the tefillin. The application of עוסק במצוה פטור מן המצוה assumes that the prohibition of having a hesech ha'da'as from tefillin is an outgrowth of a positive mitzvah to concentrate on the tefillin, and is therefore regarded as a mitzvah rather than an issur. The concept of עוסק במצוה פטור מן המצוה would only entitle one to forgo a mitzvah, but not to violate an issur.

The Biur Halacha (44:1) quotes the pri megadim who says that even during davening one's mind should be on the tefillin and not entirely focused on the davening. However, the biur halacha says that the Ari z"l always had his mind on his tefillin even during davening, except during shemoneh esrei and learning Torah, implying that during shemoneh esrei one doesn't need to have their mind on the tefillin. The Biur Halacha quotes a fascinating Ohr Zarua -

וצריך אדם כשהוא לבוש תפילין לזכור שתפילין עליו ולא להסיח דעתו מהם, שלא יישן בהם ולא יפיח בהם, כי מחמת שזוכר שנושא שם הנכבד עליו אינו בא לידי קלות ראש ותופס יראת שמים בלבו וכו' הלכך כשאדם מכוין לבו בתפלתו או בהלכה שלו אין זה היסח הדעת דכל שכן דאיכא יראת השם

The Ohr Zaruah holds that the ikar mitzvah is not to be focused on the tefillin but rather to be focused on yir'as hashem. So long as a person is involved in service of Hashem, such as learning and davening, it isn't considered a hesech ha'da'as even though his mind is not at all on the tefillin. Based on this we don't need the concept of עוסק במצוה to justify how one can concentrate on their davening while wearing tefillin.

In truth, the violation of hesech ha'da'as isn't just a lack of concentration, but would only be violated if one is actively involved in light headed behavior. The Shulchan Aruch (o.c. 44:1) paskens that one may sleep a temporary sleep in their tefillin. The Mishna Berura (3) struggles with the issue of hesech ha'da'as and explains that the violation of hesech ha'da'as is only if one is involved in frivolous or silly behavior, but the absence of concentration on the tefillin doesn't constitute a hesech hada'as. When one is sleeping and has nothing whatsoever on their mind, it isn't considered a hesech hada'as. This approach seems to contradict our gemara. Why would one have to constantly touch tefillin to avoid a hesech hada'as, if the issue of hesech hada'as cannot be violated by a passive unawareness of the tefillin? The M.B. himself deals with this question and explains that we learn from the tzitz that it is forbidden to have a hesech ha'da'as, but the Rabbonon instituted as an ideal to constantly touch their tefillin to avoid one's mind from wandering and leading to improper thoughts. However, the violation is only if one would be actively thinking about other thoughts.

Menachos 34b - Tefillin of Rabbeinu Tam (Rav Moshe's reservation)

The gemara discusses the proper order for the parshiyos of tefillin. Rashi interprets that the order is: קדש, והיה כי יביאך, שמע, והיה אם שמוע. But Rabbeinu Tam disagrees with rashi's reading of the gemara and says that it is קדש, והיה כי יביאך, והיה אם שמוע, שמע. It is interesting to note that even those who wear tefillin of Rabbeinu Tam aren't really fulfilling the mitzvah according to Rabbeinu Tam because Rabbeinu Tam brought in Tosafos 33a holds that the parshiyos have to be lying down in the tefillin, not standing upright, just like he holds by mezuza. It is clear from the gemara by mezuza that if it's placed upright according to Rabbeinu Tam, it is passul. Since Rabbeinu Tam assumes the same halacha should apply to tefillin, the placement of the parshiyos upright would invalidate the tefillin.

Rav Moshe (Igros Moshe O.C. 4:9) was asked by the Lubavitcher Rebbe why he doesn't wear Rabbeinu Tam tefillin. Rav Moshe responds very sharply that the minhag of sofrim in writing tefillin nowadays seems to be against the halacha in the way that they do the פתוחות and סתומות. Rav Moshe explains that when it comes to tefillin of Rashi who everyone agrees is the ikar, we have no choice but to wear what is available. But, regarding R"T, since it is only a chumra, he is only willing to wear it if it is done according to his standards.

To understand R. Moshe's reservation, it is necessary to understand the rules of פתוחות וסתומות. All agree that if the first paragraph would end in the middle of a line with space of 9 letters left and the next parsha begins at the start of the next line, it is a pesucha. All agree that if there is space of 9 letters left in the middle of a line separating between two parshiyos, that is a setuma. If the first parshah doesn't leave space of 9 letters and the second parsha begins at the start of a line but there is a blank line in between, the Rosh considers it a setuma and the Rambam considers it a pesucha. If the first parsha goes to the end of the line and the second begins with an indentation of 9 letters, that is setuma according to the rambam but pesucha according to the Rosh. The halacha is that the parsha of והיה אם שמוע needs to be a setuma. The Shulchan Aruch (32:36) explains that since we can't write them in the same paragraph, it is impossible to do a setuma according to everyone. Therefore, we have no choice but do pick the Rambam or the Rosh. We follow the Rambam and do a setuma by not leaving 9 letters of blank space after שמע and indenting with a space of 9 letters the parsha of והיה אם שמוע. The problem is that the sofrim leave 9 letters of blank space after the parsha of shema AND before והיה אם שמוע. Rav Moshe holds that leaving blank space at the end of the parsha preceeding והיה אם שמוע indicates an interest in making a pesucha, and then indenting at the beginning of והיה אם שמוע indicates a setuma which creates a תרתי דסתרי. He considers this to be a potential p'sul, and wasn't willing to wear Rabbeinu Tam tefillin unless they are makpid not to leave space of 9 letters at the end of the parsha that proceeds והיה אם שמוע (which according to Rabbeinu Tam is והיה כי יביאך).

R. Moshe writes that the source for this custom of leaving 9 letters both at the end of the previous parsha and before והיה אם שמוע comes from the kunteros acharon in shulchan aruch ha'rav where it says in parenthesis that the ba'al hatanya retracted from his original agreement to shulchan aruch and commanded the sofrim to leave space both at the end of the parsha proceeding והיה אם שמוע and at the beginning of והיה אם שמוע. Rav Moshe notes that there is no explanation for such an opinion and strongly rejects it. However, in the very first teshuva printed in the back of the shulchan aruch ha'rav he justifies this position by saying that according to the Rambam that indenting 9 letters in the parsha of והיה אם שמוע creates a setuma, it makes no difference whether in the previous parsha there was space of 9 letters left or not. Apparently, Rav Moshe didn't see this teshuva of the shulchan aruch ha'rav.

Menachos 33a - Halachos of Mezuza

I am posting a link to a kunteros that I plan on publishing one day on hilchos mezuza. In the meantime, click here.

Menachos 30a - Torah Min HaShamayim

The gemara quotes a machlokes whether the last eight pesukim in the sefer torah (from וימת שם משה עבד השם), were written by Yehoshua, or whether Moshe wrote them "in tears" [rashi explains the idea of writing in tears to mean that Moshe normally would repeat back the Torah as he transcribed it to avoid errors, but the last eight pesukim he was too distressed to repeat it and therefore wrote it without repeating it back]. The gemara concludes that this machlokes has very little bearing an anything we do practically because even the opinion who says that it was written by Moshe considers it to be distinct from the rest of the Torah and that it should be read by one person. Therefore, it would seem irrelevant to say that we "pasken" like one opinion rather than the other since there is not halachic debate between them. However, Rabbeinu Bachya (on the pasuk of moshe dying) argues on the Ibn Ezra who says that it was written by Yehoshua. Rabbeinu Bachya writes -

ואינו אמת, ואין פירושו נכון, אבל הנכון להאמין והקבלה האמתית שיש לנו, כי משה כתב התורה כולה מבראשית עד לעיני כל ישראל הכל מפי הגבורה, והנה משה כמעתיק מספר קדמון מתחלה ועד סוף אות באות, וזו היא דעת רבי מאיר (דלא כגירסא שלנו) שאמר אפשר ס"ת חסר אות אחת וכו' ונ"ל שאין לתמוה אם יכתוב משה "וימת שם משה וכו' שהודיע בזה מה שעתיד להיות וכו' שכל הנביאים נוהגים המנהג הזה בדבריהם לדבר עבר במקום עתיד

It seems strange for Rabbeinu Bachya to argue strongly about something which is an earlier Tamudic debate. Clearly, Rabbeiu Bachya understands that the "halacha" is like the latter opinion that we must believe that Moshe wrote the entire Torah beginning to end. Perhaps he understands this from the fact that the gemara tries to fit the statement of Rav with R. Shimon who says that Moshe wrote even the last eight pesukim. Nonetheless, Rabbeinu Bachya considers this opinion to be the prevailing opinion and calls it the קבלה האמתית - the true tradition.

A few months ago I gave a shiur on the topic of Torah Min HaShamayim where I discussed the yesod of the Rambam and what exactly we are obligated to believe - download here. Rav Moshe has a Teshuva where he considers an old sefer to be a forgery due to it's claim that parts of the Torah were inserted after Moshe Rabbeinu. Rav Moshe considers it an unequivocal violation of Torah min HaShamayim to claim that even a single letter in the Torah was written by somoene other than Moshe Rabbeinu (with the exception of the last 8 pesukim which is the discussion in the Talmud).

Menachos 29b - Understanding the Contribution of Rebbi Akiva

The gemara tells us an amazing story where Moshe Rabbeinu watched Rebbi Akiva lecture was "weakened" by Rebbi Akiva's ability and understanding of the Torah. Finally, when Moshe Rabbeinu heard that Rebbi Akiva attributed a halacha to הלכה למשה מסיני, he was comforted.

Throughout the Talmud we are given tidbits of information that can be pieced together like a puzzle to understand the personality of Rebbi Akiva, his accomplishement, and why Moshe Rabbeinu was initially "weakened" and then comforted.

Pesachim 49b - Rebbi Akiva originally had tremendous antagonism toward talmidei chachamim that he wanted to bite them as a donkey would bite crushing the bone.

Avos D'rabbi Nosson (6:2) - Famous story with Rebbi Akiva being inspired by a drop of water that was capable of penetrating a rock through it's continuity.

Nedarim 50a - Rebbi Akiva is sent by his wife to study Torah and returns with 24,000 pair of disciples.

Yevamos 16a - Rebbi Akiva earned a world renowned reputation and impressed Chanina Ben Hurkenos.

Chagiga 14b - Of all the great scholars who were נכנסו לפרדס, Rebbi Akiva is the only one to go out in peace.

Yevamos 62b - Rebbi Akiva's disciples all die for not showing proper respect for one another, he then chooses five of the greatest minds and teaches them Torah. Rebbi Akiva becomes an essential link on the chain of the mesorah.

Makos 23b - Rebbi Akiva has an outlook where he is able to provide hope for the Jewish people by showing that since the bad prophecies have come true, the good one's are also going to come to fruition. The hope he provides is another essential aspect in the survival of klal yisroel.

Brachos 61b - Rebbi Akiva becomes so attached to the Torah that he can't fathom separating from it, and draws the parallel of a fish being taken from water.

Sotah 49a - When Rebbi Akiva dies, "kavod ha'torah" is gone. This refers to his ability referenced in Menachos to be able to darshen every letter and every "crown" of the letter, displaying the depth and greatness of the Torah.

Sanhedrin 86a - Stam mishna, tosefta, sifra and sifri are all אליבא דרבי עקיבא. Rebbi Akiva is responsible for the existence of Torah sh'bal peh.

In a nutshell, Rebbi Akiva begins from nothing with tremendous animosity toward Torah scholars. He is inspired by water being able to penetrate a rock, that it could also penetrate him. He is sent by his wife to study and spends double the time alloted studying Torah until he returns with 24,000 students. Aside from earning a world renowned reputation, he becomes so attached to the Torah that he compares himself to a fish being removed from water and proudly sacrifices his life for Torah. His ultimate accomplishment is being responsible for the continuation of klal yisroel by providing hope, and being a major link in the chain of Torah sh'bal peh and showing the depth of Torah in that there is much to learn from even the crowns on the letters.

The Shita Mikubetzes (kesubos 40a) says that the disciples of Rebbi Akiva who follow his opinion are called the praiseworthy of the scholars - ורבי עקיבא היה להם במקום משה רבינו אדון הנביאים לפי שהיה כבר נשתכח תורה שבעל פה עד שבא הוא ושנאה.

What specifically was Rebbi Akiva's contribution to Torah?

Ohr HaChaim (Vayikra 13:37) explains that although Moshe Rabbeinu had the tradition of how to interpret Torah She'biksav, such as the understanding of what G-d means by a פרי עץ הדר and correctly being able to identify it as an esrog (as the Rambam writes in his preface to his commentary on mishna), Moshe Rabbeinu didn't merit being able to bridge and connect the Torah Sh'bal peh with Torah She'biksav. Both were given to Moshe mi'sinai, but each as a separate corpus. The person who would be able to connect them had to be someone who was built from nothing and attached himself to the Torah so that he was inseparable. Rebbi Akiva was exactly that, therefore he merited to be the first to connect Torah shebiksav and Torah she'bal peh and show how much of the oral torah is hinted to within the written Torah. This is why Moshe Rabbeinu feels so "weak" upon seeing Rebbi Akiva able to darshen the crowns.

When Moshe Rabbeinu sees that his entire accomplishment which was the transmission of the oral torah became unnecessary because Rebbi Akiva was able to draw it all from the written torah directly, he had tremendous חלישות הדעת to the point where he felt that the Torah should have been given by Rebbi Akiva instead of himself. It is only upon hearing that even Rebbi Akiva had to answer something by saying it is a הלכה למשה מסיני and cannot be extracted from Torah she'biksav does Moshe Rabbeinu realize that he himself is the most important link in the chain of the mesorah being the one who brought down Torah sh'bal peh from heaven. It was only through the הלכה למשה מסיני being transmitted initially by Moshe, that Rebbi Akiva had the tools to show how many of them are hinted to within the written Torah itself.

Menachos 28a - Menorah

The gemara identifies 4 features of the menorah, and explains that none of them are essential (under certain circumstances). 1. Gold. 2. Kikar (quantity) of metal. 3. gevi'im, kaftorim and perachim 4. Hammered from a solid piece. The gemara says that the last three requirements are all dependent on the first. If made of gold, it must contain a kikar, must have gevi'im kaftorim and perachim, and must be hammered from a solid piece. But, if made from other metals, none of these requirements are necessary.

The Mishna L'melech (Beis HaBechira 3:4) in explaining the Rambam writes that the latter 3 requirements are contingent on it being gold, but when not of gold we treat each of these requirements slightly differently. The requirement of a kikar doesn't apply at all when made out of other metals. One can choose to use a kikar of silver, or more or less. The requirement of gevi'im kaftorim and perachim doesn't apply and is actually forbidden. One is not allowed to make these designs on any menorah made from materials other than gold (unlike rashi d.h. eina, who says that one doesn't need to put these designs into the menorah but is allowed to). Finally, the requirement of being hammered out from a solid piece, is preferable even when made from other materials but not essential. All these points are deduced from the language of the Rambam. On the first point of not requiring a kikar he derives from the language אין מקפידין על משקלה that it makes no difference. On the second point of gevi'im kaftorim and perachim he derives from the language אין עושין בה גביעים כפתורים ופרחים that one is not allowed to make them on a menorah of another material. The third point that it should be hammered out but doesn't need to be, is derived from the Rambam who says ואם היתה חלולה כשרה. The Kesef Mishneh explains that the Rambam means to say that it can be hollow, meaning that it need not be hammered out, but the Mishneh L'melech understands that ideally it should be hammered out even when made from other materials.

After all these halachos, the Rambam writes in halacha 5 - ואין עושין אותה לעולם מן הגרוטאות בין שהיתה של זהב בין שהיתה של שאר מיני מתכות. The mishneh l'melech understands that this is only lichatchila because the requirement of being hammered out is tantamount to the requirement of not being made from small pieces of metal. The source of not using גרוטאות is the word "miksha" which requires it to be hammered out. Since the Rambam holds that the requirement to hammer out is only lichatchila, so the problem with using small pieces of metal is only lichatchila. The approach of the mishna l'melech doesn't fit into the language of the Rambam. The Rambam seems to write clearly that even a menorah constructed of other material is passul if made from small pieces of metal. The Rambam seems to understand that the term מקשה has a double implication - 1. hammered, 2. not using multiple pieces. Although the gemara says that the din of מקשה only applies to gold, the Rambam understands that to refer to the requirement to hammer and therefore allows it to be hollow (which cannot be hammered). BUT the problem with making it from גרוטאות, small pieces of metal, which is derived from the term miksha, the Rambam considers to apply even to a menorah made from other metals.

The gemara 28b says that the menorah of chashmonaim was made of שפודים. Tosafos says that they weren't actually poles, probably because that would be a violation of making it out of multiple pieces of metal, just that they didn't have the gevi'im kaftorim and perachim since it wasn't from gold. The Ben Aryeh (back of gemara) says that the pesikta (2) impli8es that it was actually made of poles of metal. He explains that according to the Mishnah L'melech's understanding of the Rambam that using pieces of metal is only a problem lichatchila, the menorah of the chashmonaim may literally have been made from poles. However, according to my understanding of the Rambam that גרוטאות are passul, the Rambam would have to agree with Tosafos that the menorah of the chashmonaim wasn't actually made from שפודים. It was made from one piece just that it didn't have the gevi'im kaftorim and perachim.

Menachos 27a - Taking all 4 species at once

The gemara learns from the pasuk ולקחתם that one can only fulfill the mitzvah of taking the 4 species if it is "complete", meaning that he must have them all. However, the gemara qualifies this by saying that so long as he has all 4, the taking need not be "complete". Tosafos quotes a machlokes between the Be'hag and Rabbeinu Tam about what this means. The Be'hag says that one can fulfill the mitzvah even by picking up one after another, whereas Rabbeinu Tam says that they must all be picked up together just that they don't need to be bound together. Tosafos writes that according to all opinions it is still considered a beautification of the mitzvah to bind them together (as the gemara writes explicitly), but not necessary to fulfill the obligation (since we don't pasken like R. Yehuda). Rashi seems to hold like Rabbeinu Tam because he says that as long as you have all 4 "even if they aren't bound togehter" you are yotzei, implying that they must be lifted up together.

In Shulchan Aruch (651:12) the mechaber paskens like the be'hag that they don't need to be picked up together, not like rashi and rabbeinu tam. The Rama comments on this ובלבד שיהיו כולם לפניו (from the Rosh). The Sha'ar Hatziyun (67) cites a machlokes between the pri megadim and the gr"a why the Rama requires all four to be on the table in front of him. The Pri Megadim holds that one can fulfill his obligation so long as he owns all four at the time he picks up the first. The advantage of being all on the table in front of him is only in regard to the bracha so that he won't have to interrupt. However, the Gr"a explains that it isn't merely a consideration for the bracha but rather part of the requirement of לקיחה תמה that all 4 minim be in front of him and ready to be picked up at the time he picks up the first. According to the gr"a if one one a lulav here and an esrog in a different place he wouldn't be yotzei by picking up one and then the other, even according to the be'hag.

Menachos 24a - Tziruf Keli

The gemara asks whether a keli combines the two half עשרון that are in it even though they aren't touching. The gemara then questions whether one can take a kemitza from one half עשרון that is in a keli with the other half but isn't touching - the gemara understands that this question is fundamentally whether the concept of tziruf keli is d'oraysa or d'rabonon. The Rambam (Hil. Pesulei HaMukdashin 11:23) paskens that it is a safeik whether one can take the kemitzah on a half עשרון and have it count for the other half. The Steipler (kehilas ya'acov 16) asks, why does the Rambam consider this a safeik? The gemara makes it very clear that the only possibility of the kemitzah on one half working for the other is if tziruk keli would be d'oraysa, but the problem is that the Rambam himself paskens (sha'ar avos ha'tuma 12:7) that tziruf keli is only d'rabonon. Therefore, the Rambam should have paskened that a kemitza on one half definitely doesn't work for the other?

The steipler explains that the concept of tziruf keli in the world of tu'mah is very different from the concept of tziruk keli to allow kemitzah from one half on the other. To allow kemitzah the tziruf keli wouldn't have to consider the two halves to be one unit, because kemtiza is always done from flour that is not really one "gush" or unit. The concept of tziruf keli for kemitza would only require that we consider the two parts to be together, but the concept of tziruk keli for tu'mah would literally have to consider them as one unit. Therefore, the rambam can pasken in hilchos tu'mah that tziruk keli is only d'rabonon, yet have a safeik whether kemitzah on one half עשרון works for the other since for this purpose the tizruf keli may be d'oraysa.