Avoda Zara 6b - Lifnei Iver for a Mumar

The gemara says that לפני עור prohibits m'doraysa one to give wine to a nazir if he had no access to it by himself (תרי עברי דנהרא). Tosafos explains that this applies even if the wine would belong to the nazir. Tosafos continues that based on this it would be prohibited to give a Jew who became a mumar to avoda zara food which isn't kosher, even to pass them their own food, because he will obviously eat it. But, Tosafos qualifies that this would only be assur if they had no access to it by themselves. Tosafos at this point is not addressing the issur d'oraysa, rather paskening a din, and seems to hold that if they would have access by themselves it would be permitted to assist them in getting the issur more easily. The Ran adds that the condition of תרי עברי דנהרא which limits the issur to a case where they don't have access by themselves, is only on a d'oraysa level, but m'drabonon it would be assur anyway because one is obligated to stop fellow Jews from doing an issur so he certainly cannot assist in it. The Tiferes Shmuel on the Rosh understands that Tosafos and the Ran disagree about this point and sides with the Ran. He then points out that Tosafos and the Rosh in our sugya both seem to hold that one can give non-kosher food to a Jewish mumar l'avoda zara so long as he had access himself, yet both Tosafos and Rosh in Shabbos 3a concur with the idea that one is not allowed to assist another Jew in doing an issur?

To answer this question, the Shach (y.d. 151:6) writes that the issur d'rabonon of assisting another Jew in doing an issur (even when he has access himself) doesn't apply to a mumar. Therefore, in our sugya Tosafos holds that one can assist a mumar in doing an issur, but in Shabbos where the aveira is being done accidentally one cannot assist. The Dagul Me'rvava explains the distinction of the Shach. The fundamental distinction is not whether the perpetrator is a mumar, rather whether he is doing it intentionally. The term "mumar" applies to anyone who is intentionally violating the aveira. The prohibition against assisting in the doing of an issur only applies when the violator is violating accidentally, but when he made a decision to violate the issur AND has access without me, there is no prohibition for me to assist him in doing the issur. In other words, when the situation is תרי עברי דנהרא it is assur m'doraysa and applies whether he is violating intentionally or accidentally, but when he has access himself and the issur is only d'rabonon because one is not allowed to be מסייע ידי עוברי עבירה it only applies when it is done accidentally but not when he made a decision to violate an issur.

The difficulty with the approach of the dagul m'rvava is that the source of the issur d'rabonon to assist someone in doing an issur is as the Ran writes - שהרי הוא מחוייב להפרישו מאיסור, והיאך יסייע ידי עוברי עבירה. The obligation to stop another Jew from doing an issur should make it assur to assist him in doing an issur even if he is doing it intentionally. Just as one has an obligation to prevent another Jew from doing an issur intentionally (הוכיח תוכיח), it should certainly be prohibited to assist him? The D"M seems to understand that the logic of "since you must stop him, you cannot help him", only applies when you have the control to be successful in stopping him such as one who is violating accidentally and will stop if you tell him that it is assur. But, when one has the ability to do it anyway and will do it anyway, the obligation to stop him doesn't apply because that isn't in your control, therefore there isn't any issur to assist him in violating.

Avoda Zara 5b - Goy Keeping His Word

Tosafos asks why the prohibition of a goy to bring an animal missing a limb isn't listed in the 7 noachide mitzvos? Tosafos explains that it isn't an issur, rather an obligation to fulfill his promise and redo the sacrifice by bringing a healthy animal. Both the Mishneh L'melech (Melachaim 10)and R. Akiva Eiger (gilyon ha'shas) point out that Tosasfos only makes sense if we assume that goyim are obligated to keep their promise, but where do find ba'al ya'chel applies to goyim?

See this link for a previous discussion about this issue:

http://hearos.blogspot.com/2008/05/nazir-61b-baal-yachel-for-goy.html

The Mitzpeh L'eisan elaborates about the obligation of a non-jew to keep their promise. We find in the Midrashim that Yacov Avinu was punished for delaying his vow and was therefore punished with Eisav and the angel, and the suffering with Dina being kidnapped. Even thought the Avos kept the Torah, they certainly shouldn't be punished to such a degree for violating their promise unless they are obligated to keep their word. See also Torah Temima at the beginning of parshas Matos where he quotes a Sifri that learns out that a goy isn't included in the prohibition of ba'al yachel. The fact that we need a drasha to exclude a goy from the technical prohibition of ba'al yachel implies that he is required to keep his word.

In the linked post I pointed out that he commitment made by Har Sinai to receive the Torah can only be binding if the Jews were obligated to keep their word PRIOR to the acceptance of the Torah. See Tosafos in Shavuos 29a who asks what the point was of taking an oath to receive the Torah - כשהשביע משה את ישראל אמר להן דעו שלא על דעתכם אני משביע אתכם, they could just as easily violate the promise as they can violate the issur of idolatry? Based on the above, the question can be answered that the obligation for a human being to keep his word doesn't come from the Torah, nor does it come from the 7 mitzvos given to Noach. Rather, it is innate in the human being who was created as a נפש חיה = רוח ממללא. His very existence and ability to speak comes with the responsibility of מוצא שפתיך תשמור ועשית.

Avoda Zara 4a - Giving Mussar

The gemara says that even tzadikim are held accountable for the sins of the wicked if they fail to give them rebuke. The failure to rebuke demotes the tzadikim gemurim to the level of regular tzadikim who are not protected from tragedy, rather they are placed at the front of the line - ממקודשי תחלו. The Rama writes in Hilchos Yom Kippur (608:2) that 3 conditions have to be met to exempt a person from rebuking his friend: 1. They are violating accidentally. 2. They will continue to violate even if they are rebuked. 3. The prohibition being violated isn't explicit in the Torah (because something that is not explicit in the Torah they don't believe the rebuker that it is in fact assur, whereas something that is explicit in the Torah they presumably are familiar with the prohibition and therefore are not considered accidental violators - M.B.). However, if any of these conditions aren't met, there is an obligation to rebuke an individual until he hits or curses you, and a community at least once.

In Yechezkel 9 when the l'vush habadim is told to draw a mark on the heads of the tzadikim to protect them from the "mashchisim" that will be entering the city, the pasuk says that the destruction began with the "holy ones". The gemara explains that they should have protested. The aveiros that led to the destruction included avoda zara and many other things that are explicit in the Torah so the tzadikim should have rebuked them. Tosafos asks from the concept of מוטב שיהיו שוגגין ואל יהיו מזידין and answers that it only applies when you are certain that they won't listen. Tosafos seems to understand that if the tzadikim in the generation were absolutely certain that their rebuke would be ignored, they wouldn't be obligated to rebuke. Although the type of sins we are speaking about are sins that are explicit in the Torah, and being violated intentionally, they would not be responsible to rebuke if they knew that the violators wouldn't listen - Tosafos disagrees with the first and third condition of the Rama. Tosafos holds that so long as the second condition is met, that they won't listen, there is no obligation to rebuke.This point is already articulated by the Biur Halacha who cites the sugya in Shabbos 55 speaking in the very same context and indicates that if one is certain that he won't be listened to, he wouldn't have to rebuke even on something explicit in the Torah. However, the biur halacha suggests that this may only help to alleviate the punishment, but the mitzvah of rebuke would still be there even if one was sure that he would be ignored. But, the opinion of the Yerei'im (and Tosafos in Shabbos 55) is that when you are sure that they will not listen, even if they are violating intentionally and it is explicit in the Torah, there is no obligation to rebuke.

The Biur Halacha concludes that although there is a mitzvah to rebuke an intentional violator who will not listen, that is only if they are still for the most part religious people. There is no obligation to rebuke those who are completely void of Torah and pay no attention to any mitzvos because they are no longer considered "עמיתך". Based on this approach, Tosafos in our sugya fits with all the conditions of the Rama because the violators in Yechezkel wouldn't qualify as עמיתך so there wouldn't be an obligation to rebuke if it was clear that they wouldnt listen.

The Birkei Yosef (cited in Biur Halacha) explains that the condition of the Rama that it not be something explicit in the Torah only applies when we have the ability to forcefully implement a stop to the behavior (even if the violators don't have a change of heart) but when it won't accomplish anything, there is no mitzvah at all.

Avoda Zarah 2b - Permission to Build Beis Hamikdash

The gemara says that Persia thought that it would have better luck than Rome since Rome was responsible for the destruction of the Beis Hamikdash whereas Persia was responsible for the construction - the permission to build it was given by daryavesh (son of esther and achashveirosh). Tosafos asks why they didn't use this as their claim to their contribution and instead they used a claim of everything we did, we did for the Jews to study Torah, similar to the claim of Rome. Tosafos explains that they were looking for a claim that would describe their accomplishments throughout the generation, therefore the building of the beis hamikdash wasn't sufficient since that was a one time thing.

This can be better understood based on the Brisker Rav at the beginning of Breishis who asks what these nations were thinking by being able to pull the wool over G-d's eyes. He explains that they were indeed telling the truth - everything they did was for the Jews because everything that is done in the world is for the Jews. בשביל ישראל שנקראו ראשית. However, although ultimately it was for the Jews, they didn't do it for the Jews and therefore had no claim. Based on this we can add that the claim of permission to build the beis hamikdash was that just as they did that for the good of the Jews, so too everything else that they did was also really for the Jews. Persia felt that their claim would be more believable since they could support everything they did with the fact that they gave permission to build the Beis Hamikdash. Their mistake was that even that wasn't entirely for the benefit of the Jews. The gemara in Rosh Hashana 4a explains that daryavesh insisted that the foundation be made of wood rather than stone so that he can destroy it if the Jews rebel. Even when he gave permission to build the beis hamikdash, it wasn't whole heartedly and therefore was not a good indication that the other contributions were also for the sake of the Jews.

Avoda Zarah 2a - Business with Goyim Holiday Time

The Mishna says that 3 days before and after a holiday of avoda zara one is not allowed to have business dealings with goyim because they will be thankful to the avoda zara for their success, so the Jew is indirectly causing worship of avoda zarah. Tosafos asks how we can be lenient about this nowadays to even do business with goyim on their holidays? At first Tosafos suggest that it is permitted to prevent "eivah" - animosity and to prevent inciting tensions between Jews and goyim, but this is not sufficient because it wouldn't explain how we can take the initiative to collect from them and do business, since abstention from these activities wouldn't lead to "eivah". From the fact that we allow something like this for the purpose of eiva, indicates that the entire prohibition is only d'rabonon because we aren't matir issurei d'oraysa to prevent animosity. Rav Moshe (Igros Moshe O.C. 1:71) points out that even if the Jew will definitely cause them to worship avoda zara it isn't considered an issur d'oraysa since he is not intending to do it for this purpose and qualifies as a davar sh'eino mis'kavein.

Tosafos offers 3 approaches: 1. Goyim nowadays aren't so observant and don't attribute their success to avoda zara so it doesn't lead to worship of a.z. 2. Based on the Yerushalmi that allows it for a goy who you have a relationship with to be "machnif" him. This answer of Tosafos seems to be based on the eivah approach but even permits actively doing things to improve the relationship with goyim. 3. Rabbeinu Tam has another approach to the sugya where he explains that only providing animals for sacrifice is forbidden, but anything else is permitted.

The Meiri explains that the issur only applies to goyim who worship the celestial beings, but no longer applies nowadays. It is unclear if the Meiri is writing this for the censors or if he honestly held that this would not apply to the religions of our days i.e. islam and christianity.

Shavuos 45a - What is a Shavuas He'ses?

Rashi in the mishna writes that when the ba'al habayis makes a claim against the storekeeper that he has payed and not received the produce, the ba'al habayis swears a "shavuas heses" to collect. Rashi does the same thing on 46a by referring to the shavua in the mishna as a shavuas heses d'rabonon". Tosafos 46a and Tosafos 48a(but is on the mishna) asks that in the time of the mishna, the concept of "shavuas heses" didn't exist and was only introduced by Rav Nachman as the gemara brings on 40b. Tosafos proves this from the gemara in kiddushin 43b which uses a language of - והשתא דתקון רבנן שבועת היסת, implying that until the period of the amoraim, the concept of shavuas heses didn't exist. Actually, Rashi himself 48b says exactly like tosafos - וכשנשנית זו בימי התנאים עדיין לא תיקנו שבועת היסת כי בימי רב נחמן תקנוה. Being that rashi seems to admit that shavuas heses was first introduced by Rav Nachman for one who is kofer ha'kol, how can rashi refer to the נשבעין ונוטלין shavuos that are discussed in the mishna as a shavuas heses? The Ran at the beginning of the perek explains the opinion of Rashi that every shavua which is not d'oraysa and only d'rabonon can be called a shavuas heses. The term "heses" as defined by rashi 40b, doesn't refer specifically to Rav Nachmans institution of swearing on denying the entire amount, rather it is a language of "suma" - placing or persuading. Any shavua that is placed on the person m'drabonon is called a shavuas heses. Rashi 41a clearly indicates (as the Ran explains) that all shavuos d'rabonon are called shavuas heses, because the gemara is speaking about shavuos d'rabonon in general and rashi uses the term "shavuas heses". Therefore, the shavuos listed in the mishna of נשבעין ונוטלין were instituted by the tana'im and the shavua of kofer ha'kol was instituted by the amor'aim (rav nachman), but both can be called "shavuas heses". The Ran seems to understand that the commonality of all shavuos d'rabonon is that the chachamim so to speak convince you to swear even though the din doesn't require it, and therefore they don't involve nekitas cheifetz - holding a davar shebkdusha such as a sefer torah (as rashi writes in kesubos 88a - although tosafos 41a disagrees from the fact that the gemara doesn't mention this to be the distinction between a shavua d'oraysa and a shavua d'rabonon). Both Tosafos 41a and the Ran disagree with Rashi and hold that even a shavua d'rabonon requires a nekitas cheifetz. The Ran holds that the נשבעין ונוטלין of the mishna require nekitas cheifetz but not the shavuas heses of rab nachman, whereas Tosafos seems to hold that no shavua d'rabonon requires a nekitas cheifetz.

Shavuos 44a - Shomer Aveida Exempt from Tzedaka

I am now back from vacation and will iy"h be more consistent.

The gemara brings the machlokes between Rabba and Rav Yosef whether a finder of a lost object would have the status of a paid watchman who is responsible for theft. Tosafos discusses whether we pasken like Rabba or Rav Yosef, but explains that all agree that if a poor person would ask for tzedaka, you would be exempt from giving tzedaka during the time that you are busy caring for the lost object. The machlokes is only whether this benefit would cause the finder to assume a status of a paid watchman, or perhaps since it is not likely to happen, it wouldn't change the status of the finder.

The Maharatz Chiyus asks that the concept of osek b'mitzvah patur min ha'mitzvah only works to exempt a person from a positive commandment, but doesn't entitle him to violate a negative commandment. Tosafos in Baba Basra 8b says that by tzedaka there is a negative commandment as well and therefore doesn't qualify as a mitzvah aseh that has the reward of the mitzvah written next to it (and we are therefore able to use physical force to make him fulfill the mtizvah) - so how can we apply osek b'mitzvah to exempt him from tzedaka? I discussed this question in Nasiach B'chukecha (page 59) and quoted a brilliant answer from Rav Zalman Nechemia Goldberg. The Ramban in Kiddushin 34a says that sometimes a negative commandment only comes to support a positive one, but is fully bound by the rules of the positive mitzvah. Here too, the lo ta'aseh of tzedaka is only a support of the aseh, so when he is osek b'mitzvah and there is no aseh, there is also no lo ta'aseh applicable. But, in the context where one is actually in violation just that the beis din must decide whether they should administer punishment, since a lo ta'aseh is also violated, we don't consider this a mitzvas aseh sh'matan se'chara b'tzidah.

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Tosafos assumes that according to Rav Yosef that the finder would have status of a paid watchman, he would be considered to be receiving benefit from the mitzvah. Tosafos asks why we would permit someone who swore off benefit from someone else to blow shofar for him (rosh hashana 28a), since at the time he would be exempt from tzedaka, he would be receiving a real benefit from the person he is blowing for? Tosafos answers that one who is taking care of a lost object is continuously busy with it, therefore it is likely that while he is busy, a poor man would come and ask him for tzedaka, and the benefit of being exempt would give him status of a s paid watchman. But when a person is blowing shofar for another, it is unlikely that a poor person would come at the time and therefore wouldn't be considered a real benefit.

Tosafos wrote on the previous amud that all agree that you would be exempt from giving a tzedaka while taking care of the lost object. Why does Tosafos only ask according to Rav Yosef, even according to Rabba he would be patur from giving tzedaka and benefiting? Simply, we can answer that according to Rabba who doesn't consider this common enough to render him a paid watchman, it also isn't common enough to consider it a benefit. However, perhaps the distinction is deeper. According to Rav Yosef we associate the benefit that the finder receives with the one who lost the object as he were actually paying him. Therefore, in a case of mudar ha'na'ah we should also consider the blower to be benefiting from the one who he is blowing for. However, according to Rabba, although the finder receives some benefit from the object, we don't associate this to be a benefit received from the loser to render the finder a paid watchman. Therefore, if the one would blow shofar for a mudar ha'na'ah, although we would consider the blower to be benefiting if a poor person would ask for tzedaka, this benefit is not considered to be a benefit from the one who he is blowing for and therefore permitted. Based on this, it would come out that there is a nafka minah between rabba and rav yosef if a poor person would be coming to ask for tzedaka while a mudar hana'ah is trying to blow shofar. According to Rav Yosef who must come on to Tosafos answer, you would be required to stop blowing to prevent receiving benefit, but according to Rabba we wouldn't consider this to be a benefit received from the one whom he is blowing for.

Shavuos 35b - Erasing the Name of Hashem

There is a machlokes in the braisa whether the prefix and suffix of the names of Hashem are included in the issur to erase the name of Hashem. We pasken like the Acheirim who hold that a prefix is mutar to erase, but a suffix is assur to erase because the name of Hashem has already been written so it spreads the kedusha onto the suffix as well. This would imply that if a sofer was supposed to write l'hashem and forgot the prefix of lamed, and added it after writing the name of Hashem, it would be assur to erase the lamed since it is being added on to a preexisting name of Hashem so it should be treated like a suffix.

R. Akiva Eiger (teshuvos 70) records a machlokes ha'poskim whether one can be in violation of erasing the name of Hashem by adding a letter. For example, can a daled be added to the yhvh, in between the final to letter so that it would now spell yehuda. He is medayek from a le'vush (y.d. 272) that this would be an issur of erasing the name of Hashem. However, R. Akiva Eiger points out that in Teshuvos Avodas HaGershuni (95) there was a situation where the sofer should have written elokim and instead wrote elokeichem, and he permits turning the kaf into a mem, so that it would spell elokim – mem, and it would then be permitted to erase the final mem since it is no longer part of the name of Hashem. Clearly, the Avodas Ha'Gershuni doesn't consider writing to be erasing the name of Hashem, because by turning the kaf into a mem, he would essentially be erasing the suffix of “chem”, which is tantamount to erasing the name of Hashem. Following the method of trying to reduce the machlokes, R. Akiva Eiger suggests that any erasing through writing would only be an issur d'rabonon because it is similar to mechika but doesn't truly qualify as erasing. Based on this, in a situation where the sofer should have written – ויאמר יעקב אל יוסף א-ל ש-די, and instead wroteויאמר יעקב אל ש-די, he would be allowed to add the words יוסף אל, because even if the original “el” was the name of Hashem it would be an issur d'rabonon, and it is only a safeik if the original “el” was meant to be the name of Hashem.

R. Akiva Eiger equates adding a letter that would change the entire name to be chol, to adding a letter that would cause the suffix to no longer be part of the name of Hashem. But, perhaps there is a difference. When adding a letter would entirely erase the name of Hashem such as a daled to yhvh, it could be an issur d'oraysa, but by simply chaning the kaf of elokeichem to a mem thereby causing the final mem to be extra, would not be d'oraysa only d'rabonon. Furthermore, perhaps the actual erasing of a suffix would only be d'robonon. If this is true, it could be that we can be more meikel with erasing through writing so that the levush and avodas hagershuni wouldn't be arguing. The levush held it was assur to add a daled since the actual erasing would be d'oraysa, but the avodas hagershuni allows the changing of the kaf to a mem since the actual erasing may only be d'rabonon.

Shavuos 30b - עשה דכבוד התורה עדיף

בשבועות ל ע"ב דאתא רב יימר להעיד בפני אמימר והושיבו, אע"פ דאיכא עשה "ועמדו שני האנשים" ודברי הכל עדים בעמידה, האי עשה והאי עשה, עשה דכבוד תורה עדיף. אלמא דכיון דעשה דכבוד התורה דהיינו "את ה' אלקיך תירא" לרבות ת"ח כדפרש"י, עדיפא מעשה דועמדו שני האנשים, אתי האי עשה ודחי האי עשה. עיין בתוס' שם דעשה דכבוד התורה עדיפא אפילו ממצות אימת המלך, והא דרב שמוחל כבודו מחול היינו שיכול למחול משום דתורה דיליה הוא, אבל כל זמן שלא מחל עדיפא כבוד התורה של ת"ח ממצות אימת המלך, לפיכך הקפיד ר"ש בן שטח על ינאי המלך שיעמוד אע"פ שבת"ח כבודו דיליה עדיפא שהוא כבוד התורה. עיין במהר"ץ חיות שהקשה על הגמ' אמאי דחי עשה דכבוד התורה עשה דעמידת העדים, הא קיי"ל בכתובות מ ע"א דאין עשה ד"לו תהיה לאשה" דוחה ל"ת משום דאי אמרה לא בעינא מי איתא לעשה כלל עיי"ש בתוס' שמלמדין אותה למחול. משמע דעשה שניתן למחילה לא אלימא לדחות ל"ת, וא"כ כיון שיכול ת"ח למחול על כבודו אמאי דוחה עשה דעמידת עדים. ונראה לומר דאם נאמר שמצות עמידת עדים הוי דין בכבוד הדיין ויכול למחול על כבודו, אתי שפיר דכופין הדיין למחול על כבודו שלא להעמיד העדים ואין כופין העד ת"ח למחול על כבודו ולזלזל את בעצמו לעמוד. ויש להביא קצת ראיה דדין עמידת העדים ובעלי דינים משום כבוד הדיין הוא, מהא דכתב הרמב"ם (פכ"א מהל' סנהדרין הל' ה') וז"ל כבר נהגו כל בתי דיני ישראל מאחר הגמרא בכל הישיבות שמושיבין בעלי דינין ומושיבין העדים כדי לסלק המחלוקת שאין בנו כח להעמיד משפטי הדת על תלם עכ"ל. ולכאורה תמוה היאך ביטלו מצות עשה דאורייתא. וצ"ל שסובר הרמב"ם דמצות עמידת הבעלי דינים והעדים הוא משום כבוד הדיינין, וכדי לסלק המחלוקת נהגו למחול בזה. אלמא דגם מצות עשה דעמידת העדים ניתן למחילה

Shavuos 30b - Standing up for an eishes chaver

The gemara relates a story where the wife of Rav Huna came to din in front of Rav Nachman, and Rav Nachman was conflicted whether he should stand for her. On one hand she is an eishes chaver, so he should stand, but on the other hand it will cause the other litigant not to be able to articulate his case (because the perception is that the din was lost before it even began). So, Rav Nachman told his clerk to throw a duck at him which will cause him to stand. He will really be standing to honor the wife of Rav Huna, but it will look to the other litigant that he is only standing because of the duck being thrown at him.

Rashi points out that this is after the death of Rav Huna. It is not clear what compels rashi to say this, but the implication is that even after the death of a Talmid Chacham, his wife has status of eishes chaver. Perhaps what compels Rashi to say this is the question of Tosafos. Tosafos asks that for kavod hatorah one is allowed to violate the aseh of having the ba'alei dinim stand, so what was the problem – Rav Nachman could have sat and had her sit as well? Tosafos answers (second answer) that although there is a requirement to stand for an eishes chaver even after he dies, the advantage of “kavod hatorah a'dif” only applies in his lifetime. Since Rav Huna was already dead, the aseh of standing for an eishes chaver is no stronger than the aseh of having the ba'alei dinim to stand, so he couldn't have allowed her sit. But, another possibility of how rashi knows that Rav Huna was not longer alive is that had he been alive, he would have come to din because any monetary matters would impact him (even on nichsei mi'lug he gets the fruits) and wouldn't have sent her. The Ran explains this approach of Tosafos that the mitzvah to be mechabed the wife of a chaver after he dies is only d'rabonon, therefore R. Nachman wasn't able to violate the mitzvah for the dayan to sit while the ba'alei dinim stand.

Tosafos raises another question on this gemara. The solution of Rav Nachman doesn't seem effective because to fulfill the concept of standing for a T.C. (or eishes chaver), it would have to be a standing that has hidur? Tosafos seems to understand that the din of “kima she'yesh ba hi'dur” means that it is not sufficient for Rav Nachman to stand having in mind that he is standing for her, but that it would have to be recognizable that he is standing for her, so if it looks like he is only standing because of the duck thrown at him, there is no kiyum mitzvah in the standing? Tosafos gives 2 answers: 1. There are two dinim in standing for a T.C. (and eishes chaver). One is an issur to sit in their presence, and secondly there is a positive kiyum in the standing. Although the kiyum mitzvah would only be when it is recognizable that he is standing for her, Rav Nachman would still not be in violation of an issur since he would be standing. It would seem that the same would be true if one is already standing when the talmid chacham enters the room, there is no way to fulfill the positive mitzvah of standing since there is no hidur in the standing, but this would also not be a violation of not standing since he is in fact standing. 2. Tosafos qualifies the “hidur” requirement that it wouldn't have to be recognizable to everyone that he is standing for her, it would only have to be recognizable for her. So long as she would realize that he is standing for her, that would be considered a standing that has “hidur”, and she would have realized that he is actually standing for her. It would come out that the 2 answers of Tosafos argue whether to fulfill the “hidur” din, it has to be obvious to everyone that the standing is for the talmid chacham, or it would just have to be obvious to the talmid chacham himself.

Shavuos 29a - More about Shavua on Mitzvah

The Mishna categorizes a shavua to be mevatel a mitzvah as a shavuas shav, but it is not a shavu'as bituy, as the gemara explained earlier because we are already presworn from har sinai. It is clear from the mishna that not only a shavua to be mevatel a lo ta'aseh is a shavuas shav, but even a shavua not to be mekyaem a positive mitzvah such as tefillin and mezuza. We discussed earlier whether a shavua is binding on a chatzi shiur of issur. Tosafos held that a shavua to eat a chatzi shiur of issur isn't binding, but a shavua not to eat a chatzi shiur of issur would be binding. R. Akiva Eiger (Teshuvos 76) is medayek from the Rambam (shavu'os 5:3) that if one swears not to eat a half kezayis of neveila it would be binding and he would be in violation if he ate a half kezyais. But, if he would eat a full kezayis, he would only be in violation of the issur neveila but not the issur shavua. It would seem that this can only be possible if he ate the full kezayis at one time, but if he would eat a half kezayis and then another half kezayis, it is inconceivable that by eating the first half he would be in violation of the shavuah and that issur would come off by eating the second half kezayis.

R. Akiva Eiger continues that the question of the Rambam would be that since the shavua is chal on a chatzi shiur, it should also be chal for eating a full shiur using the concept fo kollel. To this he writes that a shavua b'kollel only works when you include a different min – species, but doesn't include the eating of the very same min in a different way. This yesod comes from the gemara from the fact that R. Yochanan had to establish the case of shavua being chal on issur to be kollel devarim ha'mutarim, why not say that it is chal by making a shavua not to eat assur foods and can be chal through a kollel – since the shavua is chal on the combination of different issurim, it should be chal on the full amount of issur? From the fact that R. Yochanan doesn't say this, indicates that kollel only works if it includes other minim that weren't already assur.

Shavuos 23b - 24a - More about Swearing on Chatzi Shiur

On the previous Daf we tried to explain the opinion of Tosafos who says that according to R. Yochanan that a chatzi shiur is assur from the Torah, a shavua not to eat a half kezayis of neveila would be binding, but a shavua to eat it wouldn't be binding. The Ritva holds that even if one swears not to eat a half kezayis, it wouldn't be binding according to R. Yochanan. However, the Rambam takes the exact opposite opinion. The Rambam holds that even a shavuah to eat a half kezayis of neveila would be binding. The Shulchan Aruch (238:4) paskens like the Rambam that if one would swear to eat less than a kezayis fo neveila or treifa the shavua would be binding. It is true that Rashi 24a d.h. bishlama, also says that a shavua to eat a chatzi shiur of issur is binding (as is apparent from the gemara), but rashi may only be saying this in the opinion of reish lakish who holds that chatzi shiur is not assur m'doraysa (because the entire statement of the gemara is anyway according to reish lakish). It is therefore strange that the GR"A quotes this rashi as the source of the shulchan aruch saying that a shavua to eat a chatzi shiur of issur is binding, since we need a source according to R. Yochanan who holds chatzi shiur is assur m'doraysa, not just according to reish lakish.

The difficulty is that the Shulchan Aruch 239:6 writes that a shavua isn't even binding if one swears to violate an issur d'rabonon. How can the S.A. hold that a shavua on an issur d'rabonon isn't binding, yet a shavua on a chatzi shiur which we paksen is d'oraysa IS binding? The Shach (239:20) quotes the Maharal ben chaviv (103) who says based on the Ran that an issur d'rabonon is more stringent than a chatzi shiur. A chatzi shiur has no clear issur in the torah therefore a shavua is binding on chatzi shiur, but an issur d'rabonon is well sourced in the pasuk of lo tasur, therefore a shavua wouldn't be binding on an issur d'rabonon (although this seems very counter intuitive).

See Pischei Teshuva (239:4) where he quotes a machlokes Radvaz and Ran if one would swear to violate a cheirem d'rabbeinu gershom, such as he swears to divorce his wife against her will. Radvaz holds that it is not as strict as a d'rabonon and therefore binding, but the Ran holds that it is more severe than a d'rabonon and therefore not binding.

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Another point addressed by Tosafos 24a is that the gemara seems to hold that the concept of kollel (including heter with the preexisting issur) would help to assur what was already assur, but it won't help if one uses it to swear to violate the Torah i.e. swearing to eat neveilos and shechutos. Tosafos asks that the Yerushalmi says that if one makes a shavua that he will not eat matzah the entire year, the shavua would be binding and forbid him from eating matzah on pesach. To reconcile the contradiction, Tosafos writes in the name of the R"I that if the Torah demands one to be passive and not do something i.e. not eat neveila, a shavua to eat neveila wouldn't be binding. But if the Torah demands that one be active and do something i.e. eat matzah on pesach, a shavua is can be binding to not eat matzah. The question is, Why is the shavua using kollel more binding to uproot a mitzvas aseh (which requires action), than a lo ta'aseh (which requires being passive)? Perhaps the sevara would be that when it comes to a mitzvas aseh, an outside factor can prevent me from doing it and by default it won't get done. Therefore, in regard to a shavua we view it as if he is anyway going to maintain his status quo of not eating matzah and allow it to be binding. But when it comes to a lo ta'aseh, no outside factor can force the violation of a lo ta'aseh (even if it were an o'nes, he would be patur for o'nes), therefore the default is that he will fulfill the mitzvah and not eat neveila, so the oath that he takes now cannot uproot his present status of not violating the mitzvah even using the concept of kollel (including heter with the issur).

Shavuos 22b - 23b - Swearing on a Chatzi Shiur

The gemara says that when a nazir would make a shavua not to eat wine sediments, or a regular person would make a shavua not to eat neveila u'treifa, there is a possibility that they are specifically trying to swear on less than a kezayis. The rationale is that since a full kezayis is already forbidden to them, we can assume that they are swearing off something that is permited i.e. less than a kezayis. Tosafos both on 22b and 23b raises the question - less than a kezayis is not considered an issur according to Reish Lakish in Yoma 73b who says that chatzi shiur is permitted according to the Torah. But, according to R. Yochanan who says חצי שיעור אסור מן התורה, how can we reconcile him with the gemara that considers chatzi shiur to be "he'teira" and assumes that the oath would be binding. The Ritva writes that the sugya is only consistent with the opinion of reish lakish, but according to R. Yochanan who holds that chatzi shiur is assur, the oath would in fact not be binding. However, Tosafos holds that the sugya is consistent with R. Yochanan because chatzi shiur is considered איסורא בעלמא - just an issur and would not prevent the oath from being binding. Tosafos holds that since the issur of chatzi shiur isn't a full fledged issur, we don't say מושבע ועומד מהר סיני הוא. But, Tosafos 23b writes that if one would make an oath to eat a chatzi shiur, that oath wouldn't be binding because he is already pre-sworn at har sinai not to eat a chatzi shiur. Why when he makes a shavua to forbid a chatzi shiur to we not consider him pre-sworn since it is only an "issur b'alma", but when he makes an oath to eat a chatzi shiur we consider him pre-sworn and prevent the oath from being binding?

Tosafos holds that when one makes an oath to uphold a pre-existing issur, the oath cannot be binding if the issur is already in place. But, if the oath is going to increase the stringency of the issur, such as swearing to forbid a chatzi shiur of ne'veila, the oath would be binding since it would be accomplishing something - increasing the severity of the issur. But, when one makes an oath to be mevatel and undermine an issur, the oath is only binding if the Torah doesn't recognize the issur i.e. issur d'rabonon. But when the issur is recognized by the Torah, even though it is a weak issur, the oath cannot directly uproot an issur in the Torah.

Shavuos 20b - B'dibur Echad Ne'mru

The gemara says that the concept of זכור ושמור בדבור אחד נאמרו is a method of making woman obligated in the positive mitzvos of shabbos, just as they are obligated in the negative (sha'mor). Therefore the gemara says that woman are obligated m'doraysa in the mitzvah of kiddush, even though they are generally exempt from time bound mitzvos of that type. The gemara indicates that the mitzvah of kiddush is a mitzvah d'oraysa, but Tosafos qualifies this by saying that the mitzvah d'oraysa just requires verbally recognizing the kedushas hayom, or perhaps even requires saying the kedushas hayom over a cup of wine. The mefaresh in nazir learns the gemara there completely differently and understands that even the drinking the wine on which the kiddush was made is considered d'oraysa. Although rashi here quotes the drasha of זכרהו על היין, it isn't clear if his intent is to say that the wine is a required m'doraysa, or if rashi is just trying to show that the mitzvah of zachor refers to kiddush (but m'doraysa wouldn't require wine at all).

The Maharatz Chiyus quotes a teshuvas maharam alshiker quoting the ge'onim (rabbeinu hai) that whenever the expression of b'dibur echad is used, it means that that aseh creates a conflict with the lo ta'aseh and needed to be said b'dibur echad to remove the issur in case of conflict. The maharik (139) writes that the conflict created between the mitzvah of zachor and the mitzvah of shamor is that shamor forbids all chilul shabbos, but zachor demands violating for a choleh (although the gemara in yoma darshens - חלל שבת אחת כדי שישמרו שבתות הרבה from the term shamor, not zachor). In a situation of pikuach nefesh there is a conflict. Zachor says to violate so that shabbos will ulitmately be remembered and shamor says not to violate - but it was said b'dibur echad to teach that there is no issur under those circumstances. Based on this approach it should follow that the issur of shabbos is הותרה in cases of pikuach nefesh, not דחויה as the rambam writes in hilchos shabbos. It would also come out that only shabbos is hutra for pikuach nefesh, but other issurim are דחויה and not completely mutar because only within the issur of shabbos was this exemption made. From this it should follow that if one has a choice of violating shabbos or issur of eating treif food for pikuach nefesh, they should choose to violate shabbos since it is hutra not d'chuya. This would explain the opinion of Rabbeinu Meir (quoted in Rosh in Yoma 8:14) in a situation of pikuach nefesh when they were trying to decide whether to shecht on shabbos (violating shabbos) or eat ne'veila - Rabbeinu Meir says that violating shabbos for a choleh is like ochel nefesh on yom tov, which is completely mutar and therefore should be picked before the violation of neveila which is more in the category of d'chuya. Based on the concept of dibur echad, we understand where Rabbeinu Meir would be coming from.

Shavuos 18b - Separating at the Time of the Veset

The gemara learns out from a pasuk והזרתם את בני ישראל מטומאתם, that there is an obligation for one to separate from his wife around the time of the veset. There is a discussion in the gemara whether the concept of vestos are d'oraysa or d'rabonon. Tosafos in Yevamos 62b seems to assume that whether the issur in our gemara to separate at the time of the veset is d'oraysa, is dependent on the machlokes whether vestos are d'oraysa or d'rabonon.

Since we are speaking about a case where the woman has a veset ka'vuah - an established veset of 3 times, it seems that it should be d'oraysa. Why would it be different than any other chazaka? What is the peshat in the opinion who says that vestos are d'rabonon?

The Chazon Ish (Y.D. 80) writes that there are two ways to explain why veset would be different from a normal chazaka and only be d'rabonon. One approach is that when the veset comes and she doesn't get her period, the absence of a hargasha - feeling that her period is here, indicates that she didn't get her period. Therefore, a woman who is not able to use the absence of a hargasha as a proof such as a shoteh - fool, would have to be concerned m'doraysa just like any other chazaka. The second approach is that this type of chazaka is fundamentally different than a standard chazaka because there are many factors that contribute to when a woman will see and they are not all repeated each month. Therefore, the very nature of this type of chazaka, even without realizing that a hargasha was missed, would downgrade the concern to only being d'rabonon.

The difference between the two approaches would be the sevara of the Nodeh B'yehuda. The N.B. asks that the entire discussion of wheter vestots d'rabonon would seem to make sense after the veset passes and she doesn't have a hargash or period. But, when she is standing before the time that she is expecting her period, the prohibition to be with her husband is d'oraysa in nature because she has a chazaka that her period is on its way. Therefore, the N.B. says that even according to the opinion that vestos are d'rabonon (as the shach assumes l'halacha), the requirement to separate prior to the arrival of the veset would be mandated by the Torah. Just as we find that we aren't concerned that someone had died because it goes against chazaka, but are concerned that he will die in the next minute since it doesn't go against chazaka - here too, we aren't concerned that the veset came, but are concerned that it will come. Based on this the N.B. argues that even if vestos are only m'drabonon, the issur mentioned in our sugya to separate from one's wife prior to the veset is d'oraysa.

However, the Chazon Ish points out that the argument of the N.B. is assuming that the chazaka of veset is similar to all chazakos elsewhere. But, if we take the second approach that the very nature of this chazaka is weaker than standard chazakas, then even the requirement to separate prior to the arrival of the veset would not be mandated by the Torah. This approach of the Chazon Ish is against the Nodeh B'yehuda, Chasam Sofer and Chavos Da'as (184:10) who all assume that it is the lack of hargasha which downgrades the concern of the veset to only be d'rabonon.

Even according to the sevara of the N.B. that separating prior to the arrival of the veset is d'oraysa, because we consider it to be a real chazaka; Rav Moshe (igros moshe y.d. 4:14:184:2) explains that it would only apply to a woman who gets her period at any time during the o'nah, but the exact time isn't predictable. However, when a woman always gets her period in the evening or always in the morning, the chazaka would only require prisha at that time. The issur that is introduced by our gemara could still only be d'rabonon. The sevara of the N.B. wouldn't apply when the period always comes in the evening, therefore the issur all day long would be out of concern that bi'ah may induce the period to come earlier than usual, which may only be d'rabonon.

Shavuos 16b - Kedushas HaMikdash v'Yerushalaim

The sugya discusses whether the kedusha of mikdash and yerushalayim (to the exclusion of kedushas ha'aretz - see tosafos) is still present nowadays. The Rambam (Hil. Beis HaBechira 6:14) writes that the kedusha of the shechina cannot become batul. The sugya is too large to discuss in this forum - see here for a shiur on kedushas hamikdash. But, here are some short points:

1. The Gemara in Avoda Zara 52b says that the kedusha of the mizbei'ach was lost by the Greeks based on the concept of ובאו בה פריצים וחיללוה - and that is how they were able to make it assur as avoda zara even though it didn't belong to them. Why wasn't the kedusha of Yerushalayim and the Mikdash also lost based on this concept? The Maharam Shik (mitzvah 255) explains that the concept worked to make remove kedusha from the structure but not from the place. The kedusha of the place is kedusha of shechina, as the rambam writes, and can't be violated.

2. Since during the time of Ezra they didn't have the ability to restore the kedusha to the mikdash and Yerushalayim (since they didn't have urim v'tumim or a king), why does the gemara say that those who went up from the go'leh sanctified har hazeisim - they couldn't truly restore the kedusha so why bother doing anything? Tosafos writes that the question is even greater. By going through the motions of sanctification, it made it seem to the amei ha'aretz that it had kedusha and they ate kodshim there. Why did the b'nei ha'goleh do something that was a stumbling block for people? Tosafos explains - כדי שימסרו עצמם עליה יותר כשיש בה שם קדושה. Tosafos is making a fascinating point. It was necessary for the Jews to maintain of har ha'zeisim for security purposes, because it would be a strategic location from which to capture Jerusalem, as the gemara writes. The b'nei go'leh were afraid that if it wasn't perceived as having kedushas yerushalayim, the people would not be moser nefesh to maintain control of har ha'zeisim. Therefore, they pretended to sanctify it even though they didn't have the power to truly give it kedusha, to give the perception of it being part of the city, in order to maintain the security of Jerusalem.

Shavuos 15b - Learning from Ezra about being Mekadesh the Mikdash

The mishna gives a procedure for adding on to the mikdash and yerushalayim. The gemara 15a learns from Ezrah and Nechemia that the process should include the 2 chometz breads of the korban Todah. Had this been necessary only during the return from the galus by the 2nd Beis Hamikdash, it would be fine to learn from Ezra and Nechemia. But, the maharatz chiyus asks that since this is a halacha for later generations, how can it be learned from Ezra and Nechemia? Futhermore, since there is a special halacha that the inner one is eaten and the outer one burned, which is not the halacha by a standard Todah, how can we learn from Ezra something which contradicts the torah? The Rashash 16a raises the same question when the gemara concludes that the source for eating one and burning is only sourced in prophesy of chagai, zecharia and mal'achi - how can we learn from there a halacha for future generations?

The Rashash is medayek from the rambam who says that one is burned and the other is eaten, without identifying which is which - that it must be a halacha l'moshe misinai that one is burned and one is eaten. The detail of the inner one being eaten and outer one burned was a temporary halacha that was introduced through ne'vuah during the time of Ezrah, and therefore not codified by the Rambam for future generations.

Shavuos 9a - Korban for Rosh Chodesh (reduction of moon)

It isn't usual for the Torah to use the term "לחטאת להשם", as it does by Rosh Chodesh. It implies that Hashem needs atonement for something. Reish Lakish explains that the reason it uses this expression regarding the goats of Rosh Chodesh - אמר הקב"ה שעיר זה יהא כפרה עלי שמיעטתי את הירח. The goat of Rosh Chodesh is so to speak a kapara for Hashem for reducing the moon. Tosafos is bothered by the implication that Hashem requires some atonement. Tosafos explains that really the goat is a kapara for the Jewish people, and it is Hashem's responsibility to arrange this atonement. He arranged it specifically on Rosh Chodesh to appease the moon for having to reduce it in size (since originally it was the same size as the soon - chulin 60b).

The Meshech Chochma (Pinchas) explains that the reduction of the moon created a problem in the world. So long as the sun and moon were the same size, it would have been difficult to attribute any power or deity status to either one - there can't be two G-ds. The reduction of the moon enables people to confuse the sun with G-d Himself and start praying to the sun. Had the moon and sun been the same, there would be less idolatry in the world, but now that the sun is larger there is more idolatry and more rejection of Hashem.

I would like to add to the Meshech Chochma. When we say that Hashem needs atonement, it means that Hashem is taking responsibility on some level for aveiros. It is similar to the tefillos of Moshe Rabbeinu using the parable of a king dressing up his son and placing him in front of a beis zo'nos - מה יעשה הבן שלא יחטא. Here too, Hashem is taking responsibility for the aveiros committed due to the reduction of the sun, as if He Himself caused people to go astray and worship the sun. The concept of bringing a korban on the renewal of the month is a method of empowering the moon, trying to restore it's honor. We don't bring korbanos on the renewal of the sun, only on the renewal of the moon - for the purpose of trying to empower the moon and equate it to the sun. But, we recognize the moon by bringing a korban to Hashem to show that just as Hashem controls the moon and the lunar month, he controls the sun and the solar year. By recognizing Hashem's control of the moon, we make an attempt to fix the problem caused by the reduction of the moon which led to sun worship (see maharatz chiyus quoting the Rambam).

Shavuos 8b - Teshuva Before Knowing about the Aveira

The inner goat of YK is for tu'mah of mikdash and kodesh where there was an awareness before becoming ta'mei but no awareness after entering the mikdash or eating kodesh. The gemara asks what the purpose of "suspending" the aveirah is. At first the gemara says that if the violator would die before bringing a knowing about the aveirah, he would get kaparah through the inner goat. But the gemara asks that if he would die, he would achieve kapara through his death? The gemara answers that it is there to suspend punishment until he knows about the aveira and can bring the korban olah v'yoreid that he is supposed to.

The gemara assumes that anyone who would die prior to realizing the aveira (at which time he would bring a korban o'lah v'yoreid) receives a full atonement upon his death. Rashi explains based on the gemara in Yoma 86a that death atones together with teshuva - just that teshua alone isn't sufficient, but complimented by death allows him to achieve kaparah. This rashi is very difficult to understand. Although it may be true that teshuva together with death achieve kaparah, but we are speaking about someone who never realized he did the aveira and therefore would definitely not have been able to do teshvua. Why does rashi assume that there was teshuva so that his death would atone, there could not possibly be teshvua without being aware of the aveira?

It seems to me that we learn from rashi a big chiddush. It is clear that even one who commits an aveira accidentally would need atonement because there was some level of negligence involved. However, unlike a person who committed an aveira wilfully, who is considered a sinner until he actually does teshuva; a person who commits an aveira accidentally is considered a ba'al teshuva immediately even before doing teshuva. BUT this only applies if as soon as the person realized they did an aveira accidentally they would do teshuva. If they procrastinate on doing teshuva after realizing the aveira, they are no longer considered a ba'al teshuva. Therefore, so long as they have not realized that the aveira was violated, they have a chezkas kashrus that as soon as they would realize, they would do teshuva and are therefore considered a ba'al teshuva immediately. Now it is understandable why they would be considered to have death with teshuva even if they would die without realizing their aveira.

Shavuos 8a - Metzorah Receiving Atonement

The gemara says that according to the opinion that a metzorah is assumed to be a sinner because there are 7 aveiros for which tzara'as comes, the goat brought on YK could potentially be to forgive for those aveiros. The gemara answers - התם נגעיה דאכפר ליה וקרבן לאישתרויי בקהל, and rashi explains that the pain of the tzara'as is how he receives his atonement, so the korban is only to permit him back into the camp. The gemara seems to understand that the suffering of the actual tzara'as (which actually hurts as the gemara darshens - וטמא טמא יקרא, שמודיעו צערו לרבים ורבים מבקשים עליו רחמים), completely atones for whatever aveiros it came for, so that at the time of the korban he is no longer considered a sinner.

The Steipler (Birchas Peretz) asks that in the mishna Shekalim (5:3) it says that there were 4 tickets in the mikdash which one would purchase and redeem for the amount they needed for different korbanos. The ticket of the metzorah was labeled "sinner" - חוטא, and the bartenura explains based on the gemara in erchin that says that the aveiros for which tzara'as comes. But, based on our gemara which holds that he receives atonement from the pain of the tzara'as, why would it say "sinner" on the ticket at the time when he brings the korban?

The Steipler answers that even according to the opinion who holds that aveiros for which one already received atonement on YK he doesn't repeat next YK, would still hold of the concept - וחטאתי נגדי תמיד. When one did an aveira, even after receiving full atonement, it is necessary to realize that he had transgressed the aveira and received forgiveness, rather than being as if it were never violated. The rationale is that by realizing he did it in the past, he will have an awareness to avoid it in the future. It is for this reason that the metzorah is reminded even at the time of the korban, for which he was already forgiven, that he WAS a sinner.

I would like to suggest a slightly different p'shat. When one does an aveira they can receive atonement from the transgression with teshuva (and sometimes suffering), but there are certainly realities and consequences that don't go away so quickly. When one does an aveira that brings about tzara'as, he receives atonement from the pain of the ne'gah, but the halachic consequences such as being sent outside the camp are not removed with teshuva. Although the metzorah received full atonement through the suffering of the tzara'as, he is reminded at the time that he brings his korban that the reality and consequence of the aveira was being thrown out of the camp, and only now will he be permitted back it. It reminds a sinner that there is more to the sin than just atonement - he has to fix whatever consequences resulted from his sin.