Shabbos 107a - Capturing Things That Aren't Generally Captured

The Mishna says that one is chayev for capturing the 8 sheratzim on shabbos, but for others, it depends on whether it is being captured לצורך or שלא לצורך. Rashi understands that the distinction between לצורך ושלא לצורך, when it is needed or not, is exactly the distinction made by the braisa 106b between מינו ניצוד and אין במינו ניצוד. Rashi understands that לצורך means that it is מינו ניצוד and therefore a מלאכה הצריכה לגופה for which one is chayev, but if it is שלא לצורך then it is אין במינו ניצוד and therefore a מלאכה שא"צ לגופה and therefore patur. Tosafos asks that this approach is very difficult because the opinion who exempts when it is אין במינו ניצוד is seemingly speaking even when one is capturing in order to use it and it is a מלאכה הצריכה לגופה. In other words, the concept of מלאכה שצריכה לגופה should be completely subjective and not dependent on the species that is being captured. So long as the person needs this species, even if no one else captures it, it should qualify as a מלאכה הצריכה לגופה.

Tosafos explains that there are to separate halachos. The first is that one is never chayev on אין במינו ניצוד. This has nothing at all to do with מלאכה שא"צ לגופה, rather, as the Ran explains that even R. Yehuda who is mechayev for a מלאכה שא"צ לגופה would exempt when it is אין במינו ניצוד. But when it is מינו ניצוד, the type of species that is generally captured, then according to our mishna that follow R. Shimon, we would require a מלאכה הצריכה לגופה, which is what the mishna means הצדן לצורך חייב, שלא לצורך פטור. The difference between the 8 sheratzim and all others is as Tosafos explains, the 8 sheratzim are always assumed to be צורך and a מלאכה הצריכה לגופה because they have skins that are usable, but other sheratzim are assumed to be אינה צריכה לגופה unless the person has specific intent to use it for something.

According to Tosafos it isn't clear what exactly the nature of the distinction between מינו ניצוד and אין במינו ניצוד is. It seems that it is not a general distinction that permeates all 39 melachos of shabbos (such as מלאכה שא"צ לגופה or מקלקל), rather it is a very localized distinction made within the melacha of צידה. The distinction would therefore be that the melacha of tzeida is defined by trapping species that are generally captured, but capturing species that are not generally captured is beyond the parameters of this melacha.

Based on this approach, it would have been possible that אין במינו ניצוד which is completely beyond the parameters of tzeida, is not even going to be assur m'drabonon, unlike a מלאכה שא"צ לגופה which we know is still assur m'drabonon (and only permitted in a case of tza'ar or nezek). However, Tosafos 107b deduces from the language of R. Yehoshua that even on a פרעוש which the gemara identifies a אין במינו ניצוד, there would be an issur d'rabonon to trap it - פטור אבל אסור. Although Tosafos holds that the nature of the heter for אין במינו ניצוד is not מלאכה שא"צ לגופה, rather that it is simply not included in the melacha of tzeida, it still follows the same principles that it is assur m'drabonon.

Tosafos writes that if the פרעוש is biting then one would have a right to grab it and remove it because just as we are matir מלאכה שא"צ לגופה in a situation of tza'ar, as we find on 107a by מפיס מורסא, we are also matir אין במינו ניצוד in a case of tza'ar. The Ran and Rosh justify the right to grab it and remove it differently. They say that the heter is based on the concept of מתעסק. Since the person is just trying to remove the פרעוש, not trap it, he is allowed to remove it by grabbing it since the tzeida will only be a מתעסק. Based on this heter, it should be permitted to remove even if it is not biting.

Shabbos 106b - Intending to Protect Your House and Trapping a Deer

The mishna and gemara indicate that the melacha of tzeida is not violated by maintaining a situation of being trapped, and is only violated by doing an act that actually traps an animal or bird that was previously not trapped. Therefore, if an animal has already been trapped or tied down in a house, one would be allowed to close the door, and even if they later untie the animal, they would not have to open the door (Ran explains that this is the intent of the mishna למה זה דומה לנועל ביתו לשמרו ונמצא צבי שמור בתוכו).

The Ran quotes a Rashba who understands from a Yerushalmi that if a deer ran into a persons home, one would be allowed to close the door of his home with the intent of protecting his home, even if he also intends to capture the deer that is inside. Although it would be forbidden to close the door if the sole intent would be to catch the deer, they can close the door for the purpose of protecting their home, even if their intent is also to capture the deer. The Ran is amazed how the Rashba can permit this. This seems to be a classic situation of a פסיק רישא which is forbidden even is his intent was not at all to capture the deer since it is inevitable that the deer will be trapped. How can the Rashba permit closing the door with the intent to trap the deer in addition to protecting the house? Therefore, the Ran explains that the Yerushalmi is simply saying that if one closed the door to their house with the intent of protecting their home, and later realized that the deer was inside, they can maintain the status quo and don't need to open the door to release the deer. 

The M.B. 316:25 paskens like the Ran and writes that it is forbidden for one to close the door to their home with the intent of protecting their home if they know that there is a deer that will be trapped inside, even if they are not intending to trap the deer. The M.B. explains that closing the door when one knows that the deer is inside would be an issur d'oraysa (it is a pesik reisha that they want, even thought they aren't intending for it). Certainly if their intent would be to capture the deer it would be forbidden m'doraysa.

The Sha'ar Hatziyun (32) suggests that perhaps even the Rashba would only permit closing the door if the primary intent would be to protect the house, not when he is equally intending to trap the deer and protect the house because that would contradict a gemara in Pesachim which implies a double intent (one being mutar and the other asur) is forbidden.

The Poskim do not follow the controversial and difficult position of the Rashba. R. Akiva Eiger cites the Shulchan Aruch (3) who forbids closing a box for the purpose of protecting its contents, if one knows that there is an insect inside that will inevitably be trapped. This is an identical case to the deer in the house about which the Rashba and Ran argue, and indicates that the halacha is like the Ran against the Rashba. The Pri Megadim (Eishel Avrohom 11) isn't convinced by the proof from Shulchan Aruch because in that case his primary purpose in closing the box is because of the bug, unlike the case of the Rashba where the need to close the door to protect the house is at least as important to him as trapping the deer.

In short, the opinion of the Rashba is very difficult to comprehend because it contradicts the standard rule that even by a דבר שאינו מתכוין a p'sik reisha is forbidden, and the Rashba even permits a דבר המתכוין such as intending to trap in addition to protecting one's home.

The Shiltei Giborim tries to justify the opinion of the Rashba and writes:

והשתא לדברי הרשב"א נמצינו למדין דאע"ג דקיי"ל דפסיק רישיה אסור, היינו דוקא שבאותו מעשה דעביד הפסיק רישיה אינו מתכוין ואינו עושה דבר היתר עמו, אבל אם באותו הפסיק רישיה שעושה, עושה ג"כ דבר היתר עמו ויתכוין גם לדבר היתר אז אפילו עביד פסיק רישיה ומכוין גם לו שרי

The Shiltei Giborim seems to understand that in the classic pesik reisha such as dragging a bench, the inevitable reaction of the dragging which the making of the hole, has no element of heter to it. Therefore, even if he isn't intending to make a hole, it is an inevitable result that is forbidden. But when the result of the action has both a heter and issur component, it is permitted. The difficulty with this approach is that we should simply view the action to be protecting the home, and the result to be an inevitable trapping of the deer which is a classic pesik reisha. וצריך עיון בדברי השלטי גבורים.

Shabbos 105b - Destruction Therapy

The gemara is trying to find a case where there is a תיקון in the process of tearing and destroying keilim. Even according to R. Yehuda who says that one is chayev for a מלאכה שאינה צריכה לגופה, it must be a tikun and not a kilkul. The gemara suggests that we are speaking about a case where one tears something to allow his anger to subside. Since there is a tikun for him, it qualifies as a tikun despite that it is a kilkul to the item (this only works in r. yehuda who expands the chiyuv to even מלאכה שא"צ לגופה, therefore we can also expand the scope of what we consider a tikun, just as we do when one causes an injury because they need the blood - 106a). The gemara then asks, is this permitted? One is not allowed to let out their anger for the purpose of letting off steam because he is training his yetzer hora to behave in this very aggressive manner. Rashi explains that we don't consider letting off steam to be a tikun since it encourages this type of behavior to continue. According to Rashi, the Torah demands that we control our aggression, and only through suppressing it will one overcome it. Therefore, the only tikun in tearing clothing is when one needs to fake anger to instill fear on his children.

The Rambam in 3 different places, seems to say that it is considered a tikun to let off steam by breaking and damaging things. The Rambam writes (Shabbos 8,8) that one who damages someone to let off steam and calm himself down is considered a tikun and is chayev. Similarly (10,10) when tearing clothing out of anger, the Rambam considers it a tikun. And finally (12,1) torching someone's home out of anger he also considers a tikun. The Rambam seems to be inconsistent with the gemara because the gemara implies that we don't regard this kind of behavior as a tikun. The Magid Mishna (8,8) explains that the gemara never meant to challenge whether this is considered a tikun. Although it is considered a tikun, the gemara asks whether it is permitted to act in this way even during the week and proves that it is forbidden. From the fact that the Mishna never discussed the prohibition during the week, we are compelled to find another situation so that the prohibition is only applicable to shabbos and not during the week. Nevertheless, the rule of the gemara that when one damages something to let out their anger, it qualifies as a tikun, remains true. This approach fits with the language of the gemara וכי האי גוונא מי שרי וגו, because the gemara is asking whether this behavior is permitted even during the week. But, according to Rabbeinu Chananel's girsa וכי האי גוונה מי מיחייב, we are forced to interpret like Rashi (not like the Rambam) that the gemara is proving that this is destructive behavior, not a tikun, and therefore one wouldn't be chayev on shabbos for doing this.

Shabbos 104b - Chok Tochos

The gemara elaborates about the melacha of writing on shabbos. Although the Shulchan Aruch 340:4 is very concise in this melacha, the Mishna Berura elaborates and provides many details based on what is found in our gemara.

The gemara says that if one erases the middle of the ches turning it into two zayin, or erases the back of the dales turning it into a reish (and completes a sefer by doing this so that it is like writing two letters), they are chayev. The Ran struggles with a fundamental question. Why is this not a problem of chok tochos? In the context of STAM and gittin we require the writing to be performed by writing, not by erasing, because when a letter is formed through erasing it is called חק תוכות which doesn't qualif as כתיבה? The Ran cites the Rashba who says that erasing the roof of the ches or the back of the dales would not be considered חק תוכות  because it is similar to merely separating between two attached letters which would not be a problem of חק תוכות, here too it is like erasing ink that fell on the back of the letter. Perhaps the Rashba understands that we are speaking about a case where his intention was to write a reish, just that some extra ink came out forming a dales, therefore he equates this with ink falling on a letter. However, the Ran takes a radically different approach. The Ran says that to be in violation for writing on shabbos we don't make a distinction between actual writing and חק תוכות. One can even be chayev for writing חק תוכות. His rationale is:

דכל היכא דהוי מלאכת מחשבת מיחייב שהרי אפילו מוחק ע"מ לכתוב חייב

The approach of the Ran seems to be that on shabbos our focus is not on the technical act of writing, rather on מלאכת מחשבת. That means that our focus is on the result of the melacha, not the act of doing the melacha. Therefore, so long as a person accomplishes a כתיבה, even if he does so by erasing which wouldn't qualify as writing in other areas of Torah, it is considered writing on shabbos so he is chayev.

Shabbos 94a - Live People Carry Themselves

There is a machlokes between the Rabbonon and R. Nosson regarding חי נושא את עצמו. They both agree to the concept when carrying a person, but argue when carrying an animal. If the person or animal is tied down (כפות), the gemara says that even R. Nosson agrees that we don't say חי נושא את עצמו. Rashi (d.h. d'bei) implies that the same logic that the Rabbonon use for why an animal is not included in חי נושא את עצמו which is that it throws itself down rather than assists in being held, R. Nosson applies to something or someone that is tied. Tosafos discusses whether a young child is also considered חי נושא את עצמו and concludes that by a very young child we may not say חי נושא את עצמו (Tosafos implies that R. Nosson who allows for חי נושא את עצמו by an animal, will also say it by a young child, but according to the Rabbonon we won't say חי נושא את עצמו by a very young child). However, Tosafos at the beginning of perek r. eliezer d'mila seems to hold that even on a very young child we say חי נושא את עצמו.

It isn't clear from the gemara what exactly the rationale is to reject the notion of חי נושא את עצמו by a young child. Tosafos raises this question by pointing out that even if we consider a live weight to be lighter, we don't find that there is an exemption for carrying a light weight object on shabbos! Tosafos also rejects the approach that חי נושא את עצמו makes it as if two people are doing the carrying together so that it is considered שנים שעשאוה, because in this case the carrier is יכול whereas the one being carried is אינו יכול so we should consider the יכול to be chayev anyway. Therefore, Tosafos concludes by simply saying it doesn't resemble the carrying that was done in the mishkan. When carrying was done in the mishkan it was on dead animals, not live ones, so carrying is only a violation on dead, not alive. The Korban Nesanel points out that this is a good rationale for R. Nosson who holds of חי נושא את עצמו by animals, but wouldn't be a good rationale for the Rabbonon who make the distinction by people and not by animals? He suggests that the limud from the mishkan is that we don't find that carrying was done on objects that contribute to the carrying by lightening the load, therefore we say חי נושא את עצמו on any situation where the thing being carried lightens its load such as a live person.

There is a famous Radvaz cited by Pischei Teshuva in Yoreh Deiah (195) who permits a Nida and her husband to pass a child to one another based on the sevara of חי נושא את עצמו. In light of Tosafos that this is not a logical distinction, just that it doesn't match the form of carrying that was done in the mishkan, it is very difficult to apply this heter to the harchaka of a Nida passing something to her husband.

Shabbos 93a - Misa'yei'ah Ein Bo Mamash

In a situation where two people together do a melacha on shabbos, but one is capable of doing the entire thing on his own and the other is not, the gemara says that the one who can do it on his own is chayev and the other is exempt because מסייע אין בו ממש. If the אינו יכול who could not do it on his own would be considered significan (מסייע יש בו ממש) it is not clear from the gemara what would happen. Tosafos writes that they would both be chayev because it would be like אינו יכול ואינו יכול where they are both chayev (at least according to r. meir and r. yehuda but the rashba understands that even r. shimon would agree that they would both be chayev). However, Rashi (d.h. ein bo) implies that if the אינו יכול is considered significant, it would make it like זה יכול וזה יכול and they would both be patur (acc. to R. Yehuda who we pasken like). Nevertheless, the gemara concludes and proves from various places that we pasken מסייע אין בו ממש therefore the יכול is chayev and the אינו יכול is patur.

Tosafos (d.h. Amar) raises a question from the gemara in Beitza 22a in the context of a goy putting eye ointment in for a jew on yom tov and the jew assists by opening and closing his eye which is a Rabbinic prohibition of refuah. In that context both R. Zevid and Rav Ashi say מסייע יש בו ממש so that even though there is no prohibition on the goy, there is an issur on the jew to assist as it is being done for him. Why in that context do they assume מסייע יש בו ממש and in our context we assume מסייע אין בו ממש?

The first answer of Tosafos is that the gemara here is working off the maskana of the gemara in Beitzah where everyone came around to hold מסייע אין בו ממש. The second answer of Tosafos is that for a melacha d'oraysa we hold מסייע אין בו ממש, but in the gemara Beitza it is speaking about the gezeira d'rabonon of שחיקת סממנים, and in that context rav ashi and rav zevid consider מסייע יש בו ממש. What is the rationale to be more machmir for מסייע by the gezeira of שחיקת סממנים? When it comes to an issur d'oraysa we focus on the ma'aseh issur, therefore when one is merely a מסייע we don't consider his action significant enough to make him chayev. However, when it comes to the issur of refuah which is a rabbinic concern that it will lead to שחיקת סממנים, we don't need to focus on the specific action, rather any involvement that may lead someone to grind the medicine would be included. A מסייע may also be led to grind the medicines, that is why in this context we consider him יש בו ממש.

The Ritva suggests another answer. In a situation where the מסייע ultimately doesn't contribute that much because the result is the same with or without their help, such as in our case where the other person can carry out the item without the מסייע, we say מסייע אין בו ממש. But in the sugya in Beitza, if not for the מסייע opening and shutting his eye, the ointment would not be as effective, therefore we say מסייע יש בו ממש.

Shabbos 91 - Swelling and Shrinking of Shiurim

The gemara discusses situations where one carries a grogeres which shrinks and less than a grogeres that swells whether one will be chayev for carrying it on shabbos. The assumption is that one would not be chayev if it is less than the shiur and only because the shiur for carrying is dependent on the person machshava, would we say that if the shiur changes together with his machshava he will still be chayev.

The Minchas Chinuch (Moseich Shabbos, Tochein) raises a very interesting question. What is the halacha with issur that began with less than a kezayis and then swelled up, or started as more than a kezayis and the shrunk? He cites a gemara in Menachos 54a that is pasekend in the Rambam (ma'achalos assuros 4,4) that a kezayis must be naturally the size of kezayis and must be maintained. A kezayis of forbidden food that shrinks to less than a kezayis, or less than a kezayis that swells to more than a kezyais, one would not be chayev malkus for eating it. The only case where one would be chayev is where it began as a kezayis and ended as a kezayis but shrunk and then swelled in between, that would still qualify as a kezayis. Based on this, we do not take into consideration any artificial swelling, rather we insist that it is a kezayis naturally, otherwise one would not be chayev.

The Rashba in our sugya (cited by minchas chinuch) asks on the gemara that the gemara implies that swelling makes a difference. Meaning, if one carried out less than a kezayis for planting and changed his mind to eat it but it had already swelled to more than a kezayis, he is chayev (the only rationale to exempt is that he changed his purpose). This implies that artificial swelling helps to consider it the size of a kezayis, which is against the gemara in Menachos? The Rashba answers that there is a difference between all issurim and shabbos. Regarding other issurim we require that there be a full shiur of the issur in its natural state and swelling doesn't help to create a shiur, but regarding the issur of carrying on shabbos (and other issurim of shabbos), it is all dependent on chashivus and swelling helps to give it chashivus.

The answer of the Rashba is really predicated on the gemara 77a where the gemara says that carrying out a small amount of wine concentrate that can be mixed will water qualifies as a shiur because for shabbos - מידי דחשיב בעינן והא נמי הא חשיב. The shiurim for shabbos are dependent on chashivus. This is clear from the fact that a מצניע is chayev even on the smallest amount as we find in the Mishna. Rashi 90b explains that when one carries out a small amount for a specific purpose - גלי דעתיה דטרח ואחשביה, he reveals that this amount is considered choshuv for him and his is therefore chayev for it. For the same reason that a subjective machshava helps to make one chayev on less than a shiur, the artificial swelling is also going to be chayev. But by other issurim where the subjective chashivus is irrelevant, the swelling is also irrelevant, and one is not chayev until it has a natural shiur of kezayis.

Shabbos 90b - Handing a Child non-kosher Food

The gemara concludes that if there would be a legitimate concern that a child will eat something not kosher that is handed to them, one may not hand it to them. The machlokes between the tana kama and r. yehuda whether one can hand a child a non-kosher live bug, boils down to an assumption as to what the child will do with it when it dies. The t.k. is concerned the child will eat it and therefore says you can't hand even a live non-kosher chagav to a child because it may die and he will eat it, but r. yehuda says that since it was his pet, he will mourn its death, not associate it with food and therefore he won't eat it.

Rashi points out that we pasken that when a child is eating something not kosher, it is not incumbent upon others to stop him (aside from a child who reaches chinuch in which case his father is obligated to stop him). Why then is it forbidden to give him a non-kosher chagav to play with? Rashi explains that since there is an issur d'oraysa to feed a child something not kosher, handing something not kosher to a child when he is likely to eat it is tantamount to feeding him issur. Rashi implies that placing not kosher food down in front of a child is an issur d'oraysa of לא תאכילום - להזהיר גדולים על הקטנים. However, the Ritva writes that one may not give the non-kosher item to a child because it is "like" feeding him. The language of the Ritva implies that it is not actually an issur d'oraysa, but since it is very close to actually feeding him, it is assur m'drabonon.

The gemara also says that if there is a concern that he will eat a live chagav, one may not even give a child a kosher chagav because eating it while it is alive is still an issur of בל תשקצו, which is a general issur against doing things that are disgusting. The source of this idea is a gemara in Makos 16b that if one drinks out of a horn that is used for blood letting they are in violation of בל תשקצו. We generally assume that this pasuk is merely an אסמכת for disgusting activities but would not be an issur d'oraysa. 

Based on this assumption, the Mishneh L'melech (ma'achalos asuros perek 27) asks on the Rashba who says that the issur to feed a child an issur d'rabonon only applies to prohibitions of the Torah, not to Rabbinic prohibitions, provided that it is a need of the child (which is against the p'sak of the shulchan aruch o.c. 343 where the shulchan aruch explicitly writes that you can't even feed a child an issur d'rabonon. See Biur Halacha who cites R. Akiva Eiger who relies on the Rashba). According to the Rashba, why would the gemara assume that you can't give a child a chagav that is kosher, since even if he eats it, it is only an issur d'rabonon? 

The Beis HaLevi (3:55:1) answers that even the Rashba only permits it when it is for the well being or benefit of the child, and we don't consider eating a chagav to qualify. It is not clear to me why a chagav which is apparently edible, would not be considered for the benefit of the child. R. Chaim Ozer (Achiezer 3:81:5) answers that the Rashba only permits other activities which aren't sourced in the Torah, just derived from the 3 places where the Torah warns adults not to feed issur to children (tu'mah, dam, and sheratzim). But by the 3 places where the Torah explicit writes לא תאכלום and we darshen לא תאכילום, even the Rashba admits that since it is עיקרו מן התורה we don't allow the feeding of an issur d'rabonon to a child. Since eating a live chagav is an issur d'rabonon based on בל תשקצו which is the la'av of eating sheratzim, we forbid even issurei d'rabonon.

Shabbos 84b - Tumas Heset

The gemara in trying to figure out the source for there not being tumas midras by earthenware vessels quotes Rava citing a pasuk that implies that an earthenware vessel that is sealed would always remain tahor. The implication is that even if a Nida would sit on it, it would remain tahor. The seal only prevents tumas ohel, but wouldn't prevent tumah from a nida sitting on it. From this we conclude that there is no tumas midras by earthenware.

Rashi understands that the implication of the pasuk is that there would be no way at all for this sealed earthenware vessel to become tamei through a Nidah. Why wouldn't it become tamei by the nidah moving it, - טומאת היסט? Rashi explains that only something that is susceptible to tumah through touch can be tamei by moving it, therefore a sealed vessel which one cannot touch on the inside, wouldn't become tamei from moving it. Tosafos disagrees with Rashi and says that the צמיד פתיל - seal, doesn't prevent טומאת היסט and if a Nida would move it, it would become tamei.

The gemara on 21b says that they found a jar of oil that was sealed by the seal of the kohein gadol indicating that it was still tahor. Tosafos asks how can they be sure it was tahor? Although a goy would not have touched it, there is a chance that a goy moved it rendering it tamei through טומאת היסט. Even though on a Torah level goyim aren't tamei, chazal were gozer to treat them like zavin for all purposes (83a). Why are we not concerned that a goy moved it? This question is really Tosafos lishitasam that צמיד פתיל doesn't prevent tumas heset, but according to rashi there is no concern for tumas heset since it is sealed.

Tosafos answers that it was situated in the ground in a way that it is clear that it hadn't been moved at all. The Ran says that since they were looking for precious items, had they found it, they would have opened it. The fact that it was still sealed indicates that they never found it, therefore there is no concern that they moved it.

Shabbos 79b - Writing Mezuza in Order

We usually assume l'halacha that both a mezuza and tefillin must be written in order, which means that if a p'sul is found in an earlier letter, the only way to fix it is to scratch out every letter until the end of the entire mezuza and then rewrite it. That is why we generally are unable to fix tefillin and mezuzos when they have a p'sul, to the exclusion of a sefer torah on which there is no din of כסדרן and is not required to be written in order.

The gemara talks about converting a sefer torah into a mezuza or tefillin. The only issue that the gemara has with this is that a sefer torah has more kedusha than tefillin and mezuza, and one cannot downgrade kedusha. From this the gemara derives that there must be some material on which a sefer Torah can be written, that would be acceptable for tefillin and mezuza (Tosafos holds that for sefer torah we not only permit the 3 forms of parchment - גויל, דוכסוסטוס , קלף, but we even permit the use of paper. Tosafos points out that the yerushalmi rejects the use of paper).

Tosafos questions how one would convert a sefer torah into a mezuza since a mezuza requires the parsha of והיה אם שמוע to be written immediately after שמע, yet in a  sefer torah they are far apart. One of the possibilities that Tosafos suggests is that if והיה אם שמוע happens to be written on the top of a column, one can cut it out from a sefer torah and write the parsha of shema on the margin above. The problem with this that Tosafos does NOT address is that this would seem to be a violation of כסדרן since the parsha of והיה אם שמוע will be written prior to the writing of שמע?

The Taz (Y.D. 190) writes that we see from this Tosafos that the requirement of כסדרן by mezuza does not demand that the parshiyos be written in order, just that within each parsha each word and letter is written in order. The Shach in Nekudas HaKesef disagrees and is madchik in Tosafos to explain that even Tosafos requires כסדרן on the parshiyos.

The Chasam Sofer (teshuvos y.d. 282) asks that for tefillin we learn from והיו that they need to be written in order. Although there is room to reject the mechilta that applies the din of כסדרן to mezuza, and hold that there is no din of k'sidran by mezuza. The compromise requiring the letters and words to be k'sidran but not the parshiyos doesn't make sense because by tefillin we require even the parshiyos to be written in order?

The Chasam Sofer has a fascinating approach. He holds that the din of כסדרן is not focused on the order. Rather it is a din that when the parsha of והיה אם שמוע is written, it must be written with the kedusha of mezuza. The way this is accomplished is by having the parsha of שמע proceed it, it is considered to be written with kedusha of mezuza. Therefore, if והיה אם שמוע is written before שמע in general, it would be passul because the parsha of והיה אם שמוע is written without kedushas mezuza. However, when והיה אם שמוע is written within the sefer torah itself, it is written with kedushas sefer torah which is a greater kedusha than mezuza. Therefore, specifically in the case where והיה אם שמוע is written within the context of a sefer torah and assumes kedusha through the sefer torah, can we allow shema to be written afterwards on the upper margin.

Shabbos 73b - Intent Being Integral To The Melacha

The gemara says that if one prunes and needs the wood, he is in violation of both planting and harvesting. Tosafos explains that the implication of the gemara is that if one doesn't need the wood, he is only in violation of planting, not harvesting. This would seemingly only be true according to Rav Shimon who holds that one is not chayev for a melacha sh'ein tzricha l'gufah, therefore although one is technically violating both planting and harvesting, since he doesn't need the wood, he isn't chayev for harvesting. But, Tosafos says that the gemara implies that the requirement of צריך לעצים, needing the wood, is necessary even according to R. Yehuda. The rationale is that the act of pruning is not considered harvesting at all unless his intent compliments the act, meaning that he is doing it for the wood.

Tosafos enlightens us to a fascinating concept. Sometimes the melacha is defined simply by the action that one is doing. For example, if one digs a hole they are doing a melacha of plowing, even if they don't need the hole. Whether they are chayev or not will depend on the machlokes between R. Yehuda and R. Shimon, but either way we consider them to have violated the melacha. However, some melachos are DEFINED by the intent one has when doing them. If one were to cut branches without the intent to use the wood, the act is just defined as an act of pruning which is a melacha of planting, not harvesting. Tosafos proves this point from קורע על מנת לתפור and from מוחק על מנת לכתוב. Tosafos holds that for tearing and erasing the requirement for it to be for the purpose of sewing and writing respectively, is not merely a condition in being a מלאכה הצריכה לגופה or avoiding the problem of it otherwise being a destructive act. Rather, Tosafos holds that the melacha is defined as tearing for the purpose of sewing and erasing for the purpose of writing. R. Akiva Eiger (gilyon hashas) points this out. Even if the act of tearing or erasing would be done for a constructive purpose, just not for the specific purposes of sewing and writing, it would not be a violation of the melacha. This would helps explain the Rosh (siman 6) who writes that untying is only a violation if done for the purpose of tying. The Tiferes Shmuel asks that since untying something isn't a destructive act, why do we insist on untying being solely for the purpose of tying. Even if not for the purpose of tying he should be chayev since it is a constructive act? Based on Tosafos we can suggest that the requirement of it being for the purpose of tying is not to make the act productive, rather it is the very definition of the melacha similar to tearing and erasing.

The difficulty with Tosafos is that they define the act of tearing to be "tearing for the purpose of sewing", implying that for any other constructive purpose, one would not be chayev. R. Akiva Eiger points out that this contradicts the gemara 105b that says if one tears his clothing as kriah for a relative or tears something to alleviate his anger, since it is constructive they are chayev for tearing. The gemara strongly implies that tearing need not be for the purpose of sewing so long as it is for a constructive purpose, contradicting the assumption of Tosafos?

R. Elazar Meir Horowitz, without citing R. Akiva Eiger, addresses his question. Tosafos doesn't mean to say that the only time one is chayev for tearing is when it is done for the purpose of sewing. So long as it is done for some other constructive purpose, they are chayev. However, when there is no other constructive purpose other than to resew, we insist that he is actually doing it for the purpose of resewing, not merely that it be fit to resew. We see that even though to avoid the mekalkel issue it should be sufficient that it is torn in a way where it can be resewn, he is only chayev when he is doing it for the purpose of resewing, because that becomes the definition of the melacha.

Shabbos 72b - Bowing In a Church

The gemara tries to figure out the case where one inadvertently violates avoda zara and is obligated to bring  a korban for the violation. The gemara says if he is in a church but thinks that its a shul (maybe he thinks the guy in front on the cross is Moshe Rabbeinu) - הרי לבו לשמים, his heart is to heaven. Meaning, that is not a violation of avoda zara at all and he doesn't need to bring a korban. The Ritva points out that even if it wouldn't be לבו לשמים, so long as it wasn't לבו לעבודה זרה, he wouldn't be obligated to bring a korban. The only reason the gemara goes to the extreme of לבו לשמים is because when a person is in shul, it is likely that his heart is to Hashem.

Rashi also seems to be bothered by why we need to say that in his mind he is both inside a shul and לבו לשמים. The Ritva seemed to understand that the thinking it being a shul is essential, but the לבו לשמים is not necessary, so long as his heart isn't to avoda zara. Rashi on the other hand seems to say that the כסבור בית הכנסת הוא, the thinking of a shul is not necessary. Rashi comments - ומה חיוב יש כאן, אפילו ידע שהוא בית עבודה זרה והשתחוה בו לשמים אין חיוב כאן. Rashi holds that since his heart is to Hashem, who cares where he is standing. Even if he is in front of an avoda zara and well aware of where he is, so long as his heart is to Hashem, he is not obligated to bring any korban. From Rashi we learn that so long as someones heart is to Hashem, even if it looks like they are worshiping avoda zara, they are not chayev misah or a korban (perhaps what compels rashi is that otherwise, we have a perfect case where he is chayev a korban, he is in a church and bowing with his heart to Hashem thinking that it is permitted to do so). The Ritva comments that although the issur avoda zara may be dependent on what he has in mind, the din of יהרג ואל יעבור is certainly not dependent on what he has in mind. If by simply having לבו לשמים the halacha would be that one wouldn't have to sacrifice his life, there would never be a din of יהרג ואל יעבור because we would always tell the person that his heart should be to Hashem. Therefore, the Ritva concludes that the din יהרג ואל יעבור must not be dependent on the issur avoda zara, rather on chilul hashem. Since there is a chilul hashem we demand that he give up his life and not bow down.

Rav Moshe (Dibros #27, pg. 536) struggles with Rashi. Rav Moshe assumes that when a person knows that he is in a church and bows down in the church, even if his heart is to Hashem he is serving avoda zara and chayev. The fact that his heart is to heaven becomes irrelevant since to everyone watching it looks like he is worshiping avoda zara. Rav Moshe suggests that Rashi must be describing a situation where the people watching are confident that he believes in Hashem and his heart is to shamayim. Nevertheless, Rav Moshe says that it would at least be a d'oraysa violation of chilul hashem which would ruin his presumption of innocence thereby rendering his thoughts to merely דברים שבלב and therefore he should be chayev a חטאת in this situation. Perhaps it is talking about when he is alone and therefore believed to say that his heart was to Hashem.

Shabbos 71b - Shiur of Achilas Pras

It is well accepted that the shiur to combine eating into one act is כדי אכילת פרס. However, there is a contradiction between two statements of Rashi (d.h. cheilev, and She'im) how this is measured. The first Rashi implies that it is calculated by their being a כדי אכילת פרס in between the two eatings. Meaning, that the time that one is actually eating doesn't count, therefore as long as the time in between is less than a pras the two acts of eating combine together. However, the second Rashi implies that one must consume a kezayis within the amount of time it takes to eat a pras, implying that it is measured from the start of the first eating until the conclusion of the eating. Which one is it?

The Rashash cites a Sefer Be'er Avrohom (author of maskil l'eisan) - HERE, who asks this question on Rashi. He points out that both the Mishna in Krisus (3rd perek) and Rashi in Pesachim 44 imply that for something to be considered one act of eating, the entire kezayis must be consumed within an amount of time of כדי אכילת פרס. Whereas Rashi in Menachos 75b implies that so long as the amount of time in between is less than כדי אכילת פרס, the the two act of eating combine to a kezayis. The sefer Be'er Avrohom makes a distinction between an aveira and a mitzvah. He suggests that to be in violation of eating something forbidden, one must consume the entire kezayis in a כדי אכילת פרס. But, when one is eating a kezayis of matzah, so long as there is no pause in between his achila that is longer than כדי אכילת פרס, it all combines to enable him to be yotzei his mitzvah, even though it took longer than כדי אכילת פרס to eat the kezayis. With this he explains the Braisa in Pesachim 114b that if one eats a half of kezayis of maror and then another half, they combine so long as there isn't a delay in between that is longer than כדי אכילת פרס. This doesn't easily answer the contradiction in Rashi in our sugya, but the Be'er Avrohom suggests that the first Rashi is trying to say a chiddush that even if the delay in between the two eatings of cheilev is longer than כדי אכילת פרס, they combine together to be considered one eating.

The Rashash rejects the distinction of the Be'er Avrohom to say that mitzvos are different than aveiros. His proof is from a Yerushalmi in Shavuos (perek 3) cited by Rif and Rosh (end of Pesachim) that if one makes a shavua not to eat matzah on the night of pesach, it is a shavuas shav, so he gets malkus and eats matzah. The Yerushalmi assumes it is impossible to fulfill the mitzvah of eating matzah without violating the aveira. Why is this impossible? One can eat a kezayis with a break of just under a כדי אכילת פרס in between each half kezayis, thereby fulfilling the mitzvah of matzah but not violating the shavua since there will be more than a כדי אכילת פרס from the beginning to the end of his kezayis.

It is also difficult to understand what rationale there can possibly be to differentiate between a mitzvah and an aveirah. For some reason the assumption is that for a mitzvah, so long as one is eating the entire time, we don't care how long it takes him to eat the kezayis, whereas for an aveira it only qualifies as a violation of eating a kezayis when one eats a kezayis within כדי אכילת פרס.

Shabbos 69b - Count 6 Days and Keep Shabbos

The gemara says that when one loses track of when shabbos is, they should count six days and keep the seventh as Shabbos. The gemara makes it clear that the purpose is not because we assume that the 7th day will actually be shabbos, but rather we don't want him to forget the concept of shabbos (rashi) therefore the Rabbonon impose this system to remember the concept of Shabbos. The gemara also says that it is forbidden to do melacha any of the days of the week, beyond what is needed to survive for that day, because every day is a safeik shabbos and is permitted only for pikuach nefesh. The M.B. says that we aren't entitled to go after the "rov", the majority of days which aren't shabbos because one of the seven is definitely shabbos and therefore it qualifies as kavuah where we don't follow the majority.

The gemara has trouble figuring out what makes the 7th day stand out over the rest since on all days he can do what is needed to survive but not more. The only thing that the gemara comes up with is that on the 7th day he will make kiddush as it comes in and havdala as it goes out - that is the only difference between his 7th day and all other days. Tosafos asks why doesn't the gemara say that he can travel beyond his techum all other days but not on the 7th day? Tosafos offers two answers: 1. It is not a significant difference between the 7th day and the 6 earlier days by passively sitting and not travelling. 2. He can travel even on the 7th day since that is necessary to get him out of his present situation. Regarding the second answer of Tosafos, there seems to be a machlokes Ran and Ritva as to whether we allow him to travel beyond his techum, even according to R. Akiva where techum is d'oraysa, or are we only permissive because it is considered d'rabonon.

According to the second answer of Tosafos that a passive recognition is sufficient, the Biur Halacha questions why we don't say that Shabbos stands out in that he wears tefillin everyday except his 7th day. From this the Biur Halacha concludes that Tosafos must hold that he actually would need to put on tefillin everyday including his 7th day.

It comes out that on a Torah level, we regard every day as shabbos and don't allow any work beyond pikuach nefesh, but on the other hand regard every day as not being shabbos and require him to put on tefillin.

Shabbos 66b - Walking with a Cane

The Mishna permits (according to R. Meir) a person who has an amputated leg to go out with his "kav" - prosthetic leg. Tosafos has different approaches as to what function the kav actually served. Tosafos assumes that if this is the his primary method of moving around, we can prove from here that an amputee can also use a crutch or crutches which is his primary method of movement. However, if the prosthetic leg that the mishna is speaking about is more for appearance and aesthetics, we can't draw a proof from here regarding the use of a cane or crutches.

The Shulchan Aruch 301:17 paskens that a person who can walk without crutches may go out with crutches on shabbos. The assumption is that since he can't move without them, they are considered a "shoe" for him and permitted to be used on Shabbos. But the Shulchan Aruch continues that if he can move without them and is only using them to strengthen himself or hold himself better, it is forbidden. It isn't clear from the Shulchan Aruch whether the problem is that since he can move without it, we are afraid he may come to carry it, or since he can move without it, it's not considered a shoe hence a Torah violation of carrying. The Biur Halacha cites the Levush who says that on a Torah level it is not considered carrying since he is leaning on it, but on a Rabbinic level we are concerned that since he doesn't need it that desperately, he will come to carry it. However, the Biur Halacha rejects this approach based on the gemara 66b. The gemara says that a cane used by the elderly is to enable him to walk straight and straighten himself up since his legs shake, but it isn't made for the leaning of one's entire body and therefore it is not tamei as a midras. From here we see that something which is used to strengthen oneself and not to fully lean on, such as a cane (vs. a crutch), is not tamei midras and therefore on shabbos should be considered carrying. Therefore, the M.B. (64) paskens that an elderly person who can walk around inside his home without a cane, but when he goes out he uses a cane for the security and sturdiness, it is forbidden and is considered a משוי. The M.B. holds that it's not only a concern that he may come to carry it, but is actually an issur d'oraysa of carrying. However, if he is so old that he can't even move around inside without it, it becomes like the kav of a amputee that can be used in the reshus ha'rabim.

Based on this, those people who use walkers to enable themselves to walk, the halacha would be that if they require those walkers inside, they can use it outside as well. But if they only use it when going out to secure themselves and prevent themselves from falling, it is assur to go out with it on shabbos when there is no eiruv.

Shabbos 64b - Not to be Degraded in the Eyes of Her Husband

The gemara says that chazal wanted to forbid a woman from wearing any kind of tachshit on shabbos out of fear that she may come to carry it, but permitted two specific types of head coverings שלא תתגנה על בעלה. The gemara continues that we find a similar concept. Chazal wanted to darshen from the pasuk of והדוה בנדתה which implies she must maintain herself in a state of nidda, that when a woman is a nidda she is forbidden to put on make up, jewlery or other types of adornments. However, Rabbi Akiva rejected this drasha כדי שלא תתגנה על בעלה which may lead to him divorcing her, and therefore darshened the pasuk to simply say that she remains a nidda until going to the mikvah. 

Firstly, it seems strange how R. Akiva could reject the drasha based on the concern that it will be bad for shalom bayis and lead to divorce. It seems as if the zekainim harishonim were not merely instituting an issur d'rabonon but rather darshening a pasuk. How can R. Akiva reject this drasha on the basis of it detracting from shalom bayis? We see from here that R. Akiva could not accept their interpretation of the pasuk to be an accurate drasha because he felt that there is no way the Torah would forbid something that will lead to her being מתגנה על בעלה which can ultimately end in divorce. Based on his sevara he insists that the Torah mean something else entirely.

In explaining the heter for a woman to wear these head pieces on shabbos to prevent her from being מתגנה על בעלה, Rashi writes התירו לה קצת קישוטים הנאים. At first it would seem that in the context of nidda also the sevara should only permit her to war קצת קישוטים הנאים, some nice adornments, only enough that she not be מתגנה על בעלה. However, from the fact that Rashi only writes this in the context of shabbos prior to citing the Braisa by nidah, it implies that when R. Akiva rejects the drasha by niddah כדי שלא תתגנה על בעלה, he rejects it entirely. Therefore, a woman who is a nidah would be allowed to dress however nice and fancy she chooses, and is not required to hold back any form of קישוט. The rationale for the distinction is simple. By shabbos where the Rabbonon are concerned about carrying, they would only permit the bare minimum necessary to prevent her from being מתגנה על בעלה. But for a Nidah, once R. Akvia rejects the drasha there is no basis for any limitation. This seems to be the approach of the Rambam who writes (End of perek 11 in Issurei Biah) - מותר לאשה להתקשט בימי נדתה כדי שלא תתגנה על בעלה. The Rambam sounds like we permit everything without any hesitation.

However, the Shulchan Aruch (Y.D. 195:9) in recording this halacha writes:

בקושי התירו לה להתקשט בימי נדתה אלא עדי שלא תתגנה על בעלה. The language of בקושי and the language of אלא imply that there actually is an issur. It sounds like the Shulchan Aruch is understanding that we would only permit what is necessary. It is true that one can read the Shulchan Aruch to simply be saying that they would not have permitted it if not for שלא תתגנה על בעלה, but now that they permitted it, everything is mutar as the Rambam writes. But, if that is the intent of the Shulchan Aruch, all he is really saying is a historical fact of what would have been. Why would this be paskened as a halacha in Shulchan Aruch? Perhaps this question compels the Gr"a (13) to cite a braisa in Avos D'rabi Nosson:

כל המנבלת עצמה בימי נדתה רוח חכמים נוחה הימנו, וכל המתקשטת עצמה בימי נדתה אין רוח חכמים נוחה הימנו. The braisa says that it is proper for a woman to make herself look unattractive during her niddah time. The Gr"a comments that this braisa is not in accordance with the z'kainim harishonim who R. Akiva disagreed with because according to them it would be a real issur, not just אין רוח חכמים נוחה הימנו. Therefore, it must be even according to R. Akivah. Based on the Gr"a, although chazal did not forbid ANY forms of tachshit for a nidah and she is allowed to dress herself up as nicely as she wants, on a personal level she should strive to not make herself look attractive during her time of being a niddah. This is the message that the Shulchan Aruch is trying to say. R. Akiva rejected the notion that chazal would impose an issur, but he didn't reject the perspective that while a woman is a niddah she should not be מתקשטת. Based on this, although chazal couldn't forbid a niddah from being מתקשטת, it is still recommended on a personal level to abstain from doing so.
This is against some of the commentaries on avos d'rabi nosson who assume that the braisa cited at the beginning of perek 2 doesn't follow the opinion of R. Akiva. Based on this, we would follow R. Akiva so that it isn't even commendable to abstain from קשוט during her niddah time. On the other hand, the exact opposite is also a possibility. The Toras Hashlamim (also cited in sidrei tahara) suggests that only R. Akiva is very worried about her being מתגנה על בעלה because he holds (9th perek of gittin) that grounds for divorce could be as simple as finding another woman he likes better. Since R. Akiva is so permissive about divorce, he has to take special measures to prevent it. Therefore, we who don't pasken like R. Akiva in being so lax about divorce, would not be so sensitive to her being מתגנה על בעלה and would hold that it is forbidden for her to be מתקשט while she is a niddah.

Shabbos 64b - Ma'aris Ayin

Rav says that anytime chazal forbid something on the basis of ma'aris ha'ayin, it is forbidden to do even in private when no one else is watching. The gemara cites two Braisas whether an animal can be in a chatzer (not reshus harabim) while wearing a bell on shabbos which looks like it is being taken to the marketplace to be sold. The gemara says that the two braisas are dependent on a machlokes tana'im whether we forbid ma'aris ha'ayin even in private, as Rav holds, or only in the public eye. There is a machlokes whether one can hang out clothing to dry which gives the appearance of it being laundered on Shabbos. The opinion who says it is permitted to hand it out in an area where people cannot see it is against Rav, and the other opinion conforms with Rav.

Tosafos says that some prove that we don't pasken like Rav based on a gemara in Chulin which forbids Shechita in a hole because it looks like it is being done for avoda zara, but permits it in a chatzer. This seems to imply that so long as it is being done privately it is permitted. Tosafos rejects the proof and says that the advantage of the chatzer is not that it has less exposure to the public eye, rather, in a chatzer people assume you are shechting in a hole to avoid dirtying the chatzer. In other words, when the advantage of the private area is merely less exposure, chazal still maintain the issur. But if the advantage of the private area is that the circumstance avoids the entire issue of ma'aris ayin, it is permitted. Based on this, it seems to me that one may hang coats and jackets that are wet from the rain in their bathroom, without any concern. Although the fact that it is being hung indoors doesn't avoid the ma'aris ayin concern, the way in which it is being hung and the place in which it is being hung doesn't mislead people into thinking that it was actually laundered on Shabbos. The Sha'ar Hatziyun 301:212 says something similar, that if the garments aren't spread out as they are typically done after laundering, there is no issur.

There is a Tosafos in Kesubos 60a who says that although we pasken like Rav and forbid ma'aris ayin even in private, that is only when the being watching would suspect you of an issur d'oraysa, but if they would just suspect you of an issur d'rabonon, it is permitted in private. The Magen Avrohom asks from the gemara in our sugya that says that according to Rav (and the tana'im that forbid spreading out clothes even in private) it is forbidden for an animal to go into the chatzer with a bell because people will think that it is being taken to the marketplace. Selling an animal on Shabbos is only an issur d'rabonon, yet the sugya assumes that it would be forbidden even in private. This seems to be clearly against Tosafos? The Maharsham says that based on Tosafos 150a that the business shevusim that are learned from the pesukim in Yeshaya are like d'oraysa, it could be that selling an animal in the marketplace can be considered an issur d'oraysa.

The Biur Halacha 301:45 writes that since there are some poskim who reject Rav and hold that ma'aris ayin is permitted in private, one can at least rely on Tosafos who says that it only extends to private areas when the person would suspect you of violating a d'oraysa, not if they would only suspect a Rabbinic violation. Although he points out that our sugya doesn't seem to support the distinction of Tosafos, he doesn't offer any explanation to reconcile Tosafos in kesubos with our sugya.
See also the last pischei teshuva in hilchos chala (yoreh deiah) where he discusses whether Tosafos in kesubos can be relied on l'halacha.

Shabbos 63b - Are Goyim Considered an Ervah?

The Ya'avetz brings a proof from our gemara that Goyim are considered an Erva in the context of יהרג ואל יעבור. The gemara says that the aveira the Jews committed in the war against Midyan was that they were זנו עיניהם מן הערוה, which implies that even goyim have a status of Ervah.

The Rama (Y.D. 157:1) writes that a gentile man who has relations with a Jewish woman is not considered giluy arayos. The Shach (12) writes that all the Rishonim agree that a Jewish man with a Non-Jewish woman is considered giluy arayos. The justification to consider it to be giluy arayos and יהרג ואל יעבור even for a non-married gentile woman, is because if a Jew would have relations with her in a public way there is a d'oraysa halacha of קנאין פוגעין בו, therefore she is considered and ervah. The Shach understands that most Rishonim assume that the requirement of יהרג ואל יעבור would only apply if he is being forced to have relations with her in a public manner (meaning people will know about it, like by Ester), but if he is only being forced to have relations privately, he doesn't need to give up his life. However, he then cites the Nemukei Yosef who says that since he is chayev kareis even if kana'aim don't attach him, we consider her to be an ervah and even בצנעא there would be a requirement of יהרג ואל יעבור. The Nodeh B'yehuda (cited by Pischei Teshuva) explains that the opinion of the Nimukei Yosef can be justified because he may hold that even on an issur d'rbaonon of arayos we say יהרג ואל יעבור, therefore even בנצעא which is only d'rabonon we can say יהרג ואל יעבור. But the Shach himself (10) who only says יהרג ואל יעבור  by a d'oraysa, should not be able to hold that here is יהרג ואל יעבור for a צנעא violation.

It is possible that when our gemara uses the term ervah, it doesn't mean it in the literal sense and wouldn't prove that goyim have the status of ervah for יהרג ואל יעבור. However, according to the Ya'avetz who proves from our gemara that goyim are called an ervah for יהרג ואל יעבור, it must be that he assumes like the Nimukei Yosef that even בצנעא the din would be יהרג ואל יעבור. According to the other Rishonim, we don't consider goyim to be an ervah, just that in the circumstance where their is a din of קנאים פוגעין בו because its done publicly, since the Torah considers him worthy of death, we say that he is also obligated in יהרג ואל יעבור. According to this approach it wouldn't make any sense to consider goyim an ervah in the context of hirhurim.

Shabbos 63a - Difference Between This World and Days of Moshiach

The gemara has two opinions whether the time period that the nevi'im said prophesy about was referring to the days of Moshiach, indicating that there will be complete peace and significant differences between this world and the days of Moshiach, or whether they are saying their prophesy about olam ha'ba which comes after the days of Moshiach. Shmuel assumes the latter approach and therefore says that there will be no difference between the world we live in now and the days of Moshiach except for not being in servitude to the goyim. According to Shmuel, even in the days of Moshiach there will be both poor people and rich people and there will also be a need for weapons 

Rav Yaakov Emden asks that the need for weapons should be dependent on being subject to the goyim. Since in the days of Moshiach we won't be under the control of the goyim, why would we require weapons? He answers that since it will be a time period where the victory of Yaakov over Eisav is very fresh, we will still require weapons to represent the victory and remind Eisav that we entered the realm of ורב יעבוד צעיר. The Ya'avetz understands that the days of Olam Ha'ba will be an entirely different reality where we won't even need to represent ourselves as being in control, but in the days of Moshiach we will still need to use the "props" to remind Eisav that we are in control.

Tosafos comments on the statement of Shmuel that there will also be another significant difference between nowadays and the days of Moshiach aside from the שעבוד גליות. In the days of Moshiach we will have Yerushalayim restored and a Beis HaMikdash. Why does Shmuel not mention this? Tosafos answers that the אין בין is not literal because there will be other differences. Rav Yaakov Emden (ya'avetz) adds that the focus of Shmuel is just on the nature of the world. The world will run in the days of Moshiach its natural course as it does nowadays. This seems to be Tosafos intent as well that אין בין is literal, but it doesn't refer to everything, it just refers to the world running naturally.

Rav Moshe (Heara 26) makes a very strong point. He doesn't understand why Tosafos is even bothered by the question of why Shmuel doesn't mention Yerushalayim and the Beis HaMikdash. The rebuilding of Yerushalayim and the Beis HaMikdash is not a mitzva that is going to be reintroduced in the days of Moshiach. It is a mitzvah today as much as it will be then, just that we are prevented from doing so due to the שעבוד גליות. We may also be missing education in terms of how to build it since we are missing nevuah. But these things are all part of the definition of ימות המשיח when the goyim will no longer have control over us. We will be free to rebuild Yerushalayim and the Beis HaMikdash. The Rambam (Melachim 11:1) actually lists under the responsibilities of Moshiach to restore the malchus beis dovid, rebuild the Beis Hamikdash and gather the Jews from wherever they are dispersed. The Rambam includes all this under the heading of שעבוד גליות, therefore the אין בין is completely literal and accurate.

Shabbos 62a - Tefillin for Women

Rav Yosef suggests that men and women are treated as separate categories, therefore something which qualifies as a tachshit for a man and permitted to be worn on shabbos will not be a tachshit for a woman, unless it is also normal for her to wear that type of item. The gemara asks from a Braisa which permits a woman to wear tefillin in from the reshus harabim on shabbos. The assumption is that tefillin is a time bound mitzvah from which women are exempt. Therefore, if we assume that "women are a nation unto themselves" and what qualifies as a tachshit for a man doesn't impact a woman, it should be forbidden for a woman to wear tefillin on shabbos because it should be considered carrying? The gemara responds by saying that the author of the braisa holds that one is obligated to wear tefillin both at night and on Shabbos making tefillin a mitzvah that is not time bound. Since women are obligated as much as men, it is considered a tachshit for women also.

There is a very serious question that can be asked on this gemara. There is a machlokes between Rabbeinu Tam and the Rambam whether or not women can make a bracha on time-bound mitzvos, but all agree that she receives reward for fulfilling these mitzvos as an אינה מצווה ועושה. Being that a woman receives reward for wearing tefillin, how can we consider her wearing tefillin to be an act of carrying? However, if we ask the question as simply as we just did, the answer is obvious. Although women get a mitzvah for wearing tefillin, we are speaking about shabbos for which there is no mitzvah to wear tefillin. Therefore, for a man who wears tefillin during the week it is considered a tachshit even on Shabbos when there is no mitzvah (as the ritva explains on the gemara 61a) but for a woman who isn't wearing tefillin during the week, since on Shabbos there is no mitzvah to wear tefillin, it is not considered a tachshit for her. If we take this approach, it should follow that if shabbos would be a time for tefillin and women would be doing a mitzvah by wearing tefillin on shabbos, it should be permitted for them to wear tefillin, even if they aren't wearing tefillin during the week. If this were true, the gemara should have simply answered that the Braisa holds that Shabbos is z'man tefillin, so that even if night is not a time for wearing tefillin making tefillin a time-bound mitzvah, they can still wear tefillin on Shabbos since by wearing it they are fulfilling a mitzvah. Why does the gemara feel compelled to say that both night time and shabbos are a zman tefillin and transform the entire mitzvah into a non time-bound mitzvah, as Rashi explains. It should have been able to justify the women wearing tefillin without having to go to such an extreme?

From the fact that the gemara goes to the extreme that it does, it implies that the only justification to permit women to wear tefillin in reshus harabim on shabbos is if they are exactly equal to men in the obligation of tefillin, but by simply being able to perform a mitzvah by wearing tefillin on shabbos wouldn't justify the right of a woman to wear tefillin. Why?

I found that Rav Moshe (Dibros Moshe, Siman 50, anaf 4, pg. 336) addresses this issue. At first he suggests that based on Rashi in Eruvin 96 who considers women performing time-bound mitzvos to be bal tosif, and even Tosafos who at least when it comes to the mitzvah of tefillin considers it inappropriate for woman to wear since it is hard to maintain the proper level of cleanliness, we can explain our gemara. Since women are not supposed to perform this mitzvah, it isn't considered a kiyum mitzvah for them to wear tefillin on shabbos even if shabbos is a z'man tefillin. Therefore, the gemara is forced to say that women are fully obligated in this mitzvah. However, Rav Moshe suggests that if the gemara was asking from the perspective of issur rather than p'tur, it should have said so explicitly and also should have cited some proof that there is indeed an issur. Therefore he suggests that even if women would be fulfilling a mitzvah by wearing tefillin on shabbos, this would not justify their ability to wear tefillin in the public domain. The rules of what is considered a tachshit or malbush is very practical. If women have the practice to generally wear tefillin, it would be regarded as a tachshit, but if they don't have that practice, even if they would be performing a mitzvah by doing so, it is not considered a tachshit. Therefore, the only justification to allow a woman to wear tefillin on shabbos is to change the nature of the mitzvah to be a non time-bound mitzvah making women completely equal to men in this mitzvah.