Yoma 78b - Feeding Issurei D'rabonon to Children

The Shulchan Aruch writes in Hilchos Shabbos (343) that it is forbidden for an adult to "feed" something which is forbidden either by the Torah or M'drabonon, to a child. This concept is not based on the mitzvah of chinuch, but is rather based on a specific prohibition of לא תאכילם, from which the gemara learns out in Yevamos 114a - להזהיר גדולים על הקטנים. The Rashba cited by the Biur Halacha (quoting R. Akiva Eiger) disagrees and holds that if it is only an issur d'rabonon and being done for the sake of the child, not for the sake of the adult, it is permitted.

There is a major machlokes Rishonim addressed by Tosafos 77a, and by the Ran and Tosafos Yeshanim at the beginning of the perek whether the other inuyim (aside from eating and drinking) are forbidden by the Torah, or only m'drabonon. Rashi 74a d.h. shabason, seems to hold that they are only assur m'drabonon because Rashi equates the d'rabonons of Shabbos for which "Shabbason" is used as an esmachta, to these inuyim for which shabbason is also used as an esmachta. Yet, when explaining our gemara which says that one cannot put shoes on children because people will say אינשי עבדו ליה - an adult did it for him, Rashi writes that the Torah forbids an adult from feeding an issur to a child. Therefore, if we allow children to wear shoes, people will assume that an adult violated this prohibition by putting the shoes on the feet of the child. Even though Rashi holds that these inuyim are only M'drabonon, and even though it is being done for the sake of the child, Rashi assumes that there would be a violation of לא תאכילם - להזהיר הגדולים על הקטנים. This seems to be against the Rashba and is a support for the Shulchan Aruch who holds that even for an issur d'rabonon done for the sake of the child, we don't allow an adult to be the direct cause of it.

Yoma 77a - Smearing Non-kosher Fats On One's Skin

Someone asked me not long ago whether it is permitted to smear on one's skin items that are not kosher. This person in particular is very health conscious and is trying to figure out creative ways of absorbing certain items that they believe to be healthy into their body without violating any issurim. The question is, when the gemara makes the claim that סיכה כשתיה, how seriously do we take that? Do we view smearing oneself with something to be tantamount to drinking it? There is no question that in the context of Yom Kippur, the gemara clearly does. In the context of one who is forbidden to eat teruma using it to on their body is also explicit in the gemara Nidah 32a that it is prohibited. It is also obvious that issurei hana'ah one cannot use at all, therefore one could certainly not use Orlah which is assur b'hana'ah (as the gemara says in Pesachim 25b). The question is whether one can use other forms of forbidden foods to smear themselves with.

Tosafos 77a d.h. d'nan writes in the name of Rabbeinu Tam that aside from eating and drinking all the עינויים of Yom Kippur are only d'rabonon. Tosafos continues that the Rabbonon were only gozer that סיכה כשתיה by Yom Kippur and for Teruman, but nowhere else. Clearly Rabbeinu Tam holds that it is perfectly permissible to use all forms of ma'achalos ha'asuros and rub it on one's skin, so long as they don't ingest it. However, it seems from Tosafos that this approach is predicated on the assumption that the concept of סיכה כשתיה even where it does apply (Yom Kippur and Teruma) is only d'rabonon. However, if we assume that the עינויים of Yom Kippur are d'oraysa, as the Ran quotes from the Rambam, the concept of סיכה כשתיה must be d'oraysa at least in the context of Yom Kippur. Similarly, the Rambam (Terumos 10,2) implies that eating, drinking and anointing are all forbidden forms of using teruma (for one who may not use teruma), and that they are all the same, meaning that they are d'oraysa.

The question becomes, according to the Rambam who holds that the concept of סיכה כשתיה is d'oraysa, how does it apply to other issurim aside from Yom Kippur and Teruma. Do we assume that it is only d'oraysa in those two places, or are we to learn from there that it is always d'oraysa? And even if it is only d'oraysa in those two places, is it at least an issur d'rabonon elsewhere or is it completely mutar?
Even within the opinion of the Rambam that סיכה כשתיה is d'oraysa by Terumah and Yom Kippur, the Machane Ephraim (hearos at end of sefer - pg. מא in the old editions d.h. עוד בדין) writes that only a sicha done for the purpose of enjoyment would be d'oraysa, not if done for medicinal purposes. Therefore, the proof of Tosafos from Yoma 77b about one who has head injuries being able to do sicha is not a question on the Rambam because it is not for ta'anug, therefore only d'rabonon, and for refuah they weren't go'zer.

The Taz (Y.D. 117:4) cites the Beis Yosef quoting the Orchos Chaim that one may not anoint themselves with pig fat דסיכה בכלל שתיה היא. The Taz rejects that based on our Tosafos, and from the Rashba who permits anointing with pig fat, even when there is no sakana. However, The Taz concludes by citing the Issur V'heter that it is only permitted if there is some level of tza'ar, one who is perfectly healthy and is only using it as a moisturizer or for תענוג בעלמא, it may not be done. The Taz comments - וכן עיקר, implying that it can only be done to alleviate a tza'ar but cannot be done for just simple enjoyment.

It is very difficult to understand the hagdara of the Issur V'heter and Taz. If we say סיכה כשתיה is should be a regular issur, whether d'oraysa or d'rabonon, and should not be mutar to avoid tza'ar. The fact that it is mutar to avoid tza'ar implies that it is not a real issur, so why is it assur to use for pleasure?

The Nekudos Hakesef also quotes the same sources and seems to hold that Tosafos clearly permits it entirely, even for תענוג בעלמא, which is also the p'sak of the Bach. However, the Nekudas Hakesef comments that he saw those who are machmir not to wash with non-kosher soap, "and that is correct". He then continues to try and justify a minhag of not using pig fat in particular, while still using other forms of non-kosher fats.

In short, both the Taz and Nekudas Hakesef seem to conclude that it is technically permitted to use non-kosher items on one's skin, but one should preferably abstain from doing so for the sake of enjoyment. One should only use it if they NEED it. Similarly, the Aruch Hashulchan (29) justifies the practice of using soap from non-kosher items even for no particular need since it is already pagum, which implies that he agrees that otherwise it should not be used lichatchila. The Hagdara of the issur still needs explanation.
Perhaps the Issur V'heter holds that the distinction between תענוג and to alleviate צער is not a practical distinction of how necessary it is, Rather, he holds that the real issur of סיכה כשתיה is only when done for תענוג, as the Machaneh Ephraim says explicitly, but when done to avoid tza'ar, that does not qualify as ta'anug. Therefore, even other issurim outside of Y.K. and Teruma, we only permit it when it is to help alleviate tza'ar, but if it is done for ta'anug the Issur V'Heter is concerned for the opinion of the Rambam that it is d'oraysa on Y.K. and for Teruma, and therefore may apply to other issurim as well.
Regarding the issue of anointing oneself using items that are meant to be ingested, there is definitely not going to be an issur d'oraysa because the Rambam (Terumos 10:2 and 11:1) implies that even for Teruma we only say סיכה כשתיה if it is meant to be used in that way. If it is meant to be ingested, even the Rambam would hold that at worst it would be a d'rabonon. Being that we don't know what the Rambam would hold for other issurim outside of Terumah and Yom Kippur, and Tosafos is matir explicitly, one who feels that they need this item for their health can certainly be lenient to use it.

Yoma 70a - Rolling the Sefer Torah B'tzibur

The gemara explains that the first two parshiyos that were read by the kohen gadol, since they were in close proximity to one another, it can be rolled from achrei mos to emor. But the third parsha which was in parshas Pinchos could not be rolled to and therefore he must read it by heart. The gemara explains that rolling wasn't an option because it was a lack of kavod tzibbur, as rashi explains, having everyone sit silently until they reach the spot. The gemara explains that although generally we take out multiple sifrei torah, that is only when each sefer torah is read from by a different person so that there was no insult to the original sefer torah and no issue of causing an extra bracha (since each person is going to anyway make their own bracha), but this was not an option for the Kohein Gadol's reading (it would be a problem of p'gam and causing an unnecessary bracha).

The Tosafos Yeshanim points out that although reading by heart is not a perfect solution because it is a violation of reading the written torah orally, it is the lesser of the two evils. The Tosafos Yeshanim (in first answer) understands that the issue of reading written Torah by heart is only a מצוה מן המובחר, and is therefore trumped by kavod tzibbur.

It would seem from the gemara that on a shabbos rosh chodesh where we need to read from two separate places, we take out two sifrei torah rather than roll. If there is only one sefer Torah, it would be better for one to read the second section by heart rather than rolling the Torah and causing the tzibbur to wait. However, this is clearly not the minhag.

The Beis Yosef (144) writes that the hagahos mordechai and Ritva both say that it is better to disregard the kavod tzibbur, rather than disregard the takanas chachamim to read the inyana d'yoma of rosh chodesh (or 4 parshiyos). It is unclear how they would work this into the gemara which seems to say the opposite. Perhaps they would say that in the time of the gemara it wasn't set as an absolute takana to read the korbanos of mussaf from a sefer torah, but once it has become the overwhelming custom, it is like a takanas chachamim that overrides kavod hatzibbur.

The Rashba in a teshuva cited in the beis yosef was asked about the possibility of reading the second section from a chumash when there is only one sefer torah, rather than rolling. The Rashba answers and proves from our gemara that it is better to read from a chumash rather than roll, because even reading by heart is better than rolling. Clearly, the Rashba holds that reading from a chumash which avoids both the kavod tzibbur problem and the issue of reading the written torah by heart, is the best solution.

Yet, the Shulchan Aruch paskens like the Ritva that we roll rather than read from a chumash, and the Darkei Moshe agrees. The Magen Avrohom (7) asks this question on the Shulchan Aruch, that the gemara itself says that even if there is no alternative but to read by heart, we prefer that to the rolling of the Torah b'tzibbur. How does the pesak of the Shulchan Aruch fit with the gemara (The Magen Avrohom is apparently not content with saying that it only developed into a "takana" to read that section b'tzibbur, after the time of the gemara)? The Magen Avrohom writes that the concern of Kavod Tzibbur was only in the large group that was in the ezras nashim to hear the Kohein Gadol read from the Torah, it doesn't apply to the small groups in shul because מסתמא מוחלין על כבודם כדי לקיים קריאת המפטיר דשבת ור"ח ומפטיר דיו"ט דהוא תקנת הגאונים. The Magen Avrohom seems to hold that the takana alone wouldn't trump kavod tzibbur, but since there was a takana to read the inyana d'yoma from the sefer torah, we assume the tzibbur would be mochel on their honor.

The Nesiv Chaim (gilyon of shulchan aruch) explains the position of the hagahos mordechai. In the time of the gemara where the one getting the aliya read from the Torah it was impossible for the section to be read by heart because no one knew who would get that aliya (it was only possible for the kohen gadol who knew that he would be reading it to memorize it in advance). Since that was not a solution, the custom became to roll the torah b'tzibbur, which carries over into nowadays when there is a ba'al korei who can technically prepare it in advance since we also have a shortage of people who can read it by heart. Being that it became impossible to sustain the reading of the parsha by heart, the tzibbur is mochel on their kavod to allow the rolling. The difficulty with this approach is that it can still be read from chumashim as the Rashba suggests.

The Pri Chadash actually writes that the Shulchan Aruch following the Ritva and Hagahos Mordechai on only allowing the rolling since we can assume the tzibbur is mochel. They are not suggesting that it is a better solution to just reading from a chumash. Therefore he writes that if they want to read from a chumash rather than rolling the sefer torah, they can certainly do that.

A simple answer would have been that reading from a chumash is more of a lack of kavod tzibbur than rolling, therefore we roll rather than read from a chumash. The Pri Megadim rejects this answer because the reading from a chumash is only a lack of kavod tzibbur because they don't have a Torah (so we don't allow them to read from a chumash to make them feel bad and purchase a Torah - Beis Yosef 143), but in this case where there is a sefer torah, there is no lack of kavod tzibbur to allow the second reading to be done from a chumash.

Yoma 69a - Benefiting from Bigdei Kehuna

The gemara concludes that when one is already wearing bigdei kehuna to do the avoda, they can continue to wear it even after the time of the avoda - מפני שבגדי כהונה נתנו ליהנות בהן. But, the braisa says that the kohein wearing bigdei kehuna must remain in the beis hamikdash and not go out to the "medinah". Rashi explians that it would be a problem of treating the bigdei kehuna as non-kodesh garments. The language of Rashi implies that the nature of this prohibition would only be d'rabonon. Tosafos points out that just as one cannot go out l'mdinah wearing the bigdei kehuna, it would also be forbidden to put on the bigdei kehuna when one is not putting them on for the purpose of doing the avoda. The leniency is only to continue wearing them once they are on, but not to actually put them on. Tosafos understands this from the gemara in kiddushin which justifies the practice of wearing them after the time of the avoda as לא ניתנה תורה למלאכי השרת which implies that since it is unavoidable, it is permitted, but to put them on is certainly avoidable and not permitted (According to Tosafos perhaps one cannot wear them for much time after the avodah either because that is also easily avoidable).

The Mishna gives an option of reading the parsha either in the bigdei lavan that the kohein gadol was wearing until now, or to change into special clothing that was made for this purpose. The Tosafos Yeshanim points out that it does not offer the option of changing into the bigdei zahav to read the parasha. Perhaps the rationale is based on what Tosafos points out that he cannot lichatchila put on bigdei kehuna when unnecessary.

Tosafos adds an additional chiddush. Tosafos explains that the tzitz was an exception to the other bigdei kehuna because there is an explicit pasuk permitting it to be worn "always" - והיה על מצחו תמיד. This implies that the issur of putting on bigdei kehuna unnecessarily is not merely a d'rabonon violation (as rashi explains for walking out l'medina), but rather a Torah violation which is only waived by the Torah itself for the tzitz. Perhaps Tosafos will hold that just as placing on the bigdei kehuna not at the time of avoda is a Torah violation, the continuing to wear too long after the avoda where there is no justification of  לא ניתנה תורה למלאכי השרת, would also be a Torah violation. And perhaps Tosafos will hold that even walking out l'medinah would be a Torah violation, against Rashi who writes - שנוהג בה דרך חול, which implies that it is only a drabonon violation.

There is another point that is apparent from Rashi at the beginning of th sugya. The entire discussion is whether one is allowed to benefit from bigdei kehuna שלא בשעת עבודה, but it seems to take for granted that it is perfectly permissible to benefit from them and enjoy their warmth while doing the avoda. There doesn't seem to be any requirement to avoid the intention of pleasure that is being derived by the clothing that he is wearing while doing the avoda. Although when it comes to the concept of מצות לאו ליהנות ניתנו, the Ran (and most rishonim) holds that one cannot derive a hana'as ha'guf that is simultaneous with the mitzvah, this seems to be different. The bigdei Kehuna seem to be similar to a succah, where although there is an issur d'oraysa to benefit from a succah (learned from chagiga - succah 9a), one can enjoy the shade and protection of the succah while sitting in it for the mitzvah. The rationale is that the definition of succah is to be a protection from the elements, as the definition of clothes is to provide warmth, therefore we assume that these benefits that are simultaneous with the mitzvah are permitted.

Yoma 54a - A goy Making Tzuros for a Jew

The gemara says that there were tzuros of keruvim that were painted and carved into the wall of the beis hamikdash which were there even in the second beis hamikdash, after the keruvim on the Aron and the keruvim of Shlomo that stood on the floor were no longer present.

Tosafos launches into a discussion as to how there can be animal pictures printed in the machzorim. Although Tosafos begins by saying that pictures in siddurim and machzorim serve as a distraction so they are not a good thing, it is nonetheless permitted. Tosafos begins by saying we find that Rabban Gamliel had tzuros of the moon that he would show to the witnesses who came to testify about rosh chodesh, and the gemara says that although they are forbidden to make, "others made it for him". Meaning, it was done by goyim. Although the gemara says that it would still be forbidden to own and maintain, due to chashad (Rabban Gamliel was an exception since there were always people there so there was no chashad), Tosafos explains that since the pictures in the machzorim are not 3 dimensional, there is no chashad. There are 3 stages in Tosafos. In stage one the implication is that it would be forbidden for a Jew to make these tzuros in the machzorim, and it was only permitted to be maintained since it was not 3 dimensional. In the second stage Tosafos proceeds to explain that since they are not 3 dimensional, it is even permitted for a Jew to actually make pictures of these animals. In the final stage Tosafos explains that since the pictures were of animals, not of human faces, there is no prohibition whatsoever even to make 3 dimensional pictures.

R. Akiva Eiger, in the Gilyon HaShas asks that according to the first stage of Tosafos where it was forbidden for a Jew to make, but permitted because it was made by goyim, there should be an issur of amirah l'nachri? The Tosafos in Rosh Hashana explains that the only reason that Rabban Gamliel was able to have them made by goyim was because it was for a mitzvah purpose, implying that without that advantage it would be an issur d'rbonon of amirah l'nachri. Why then would it be permitted here to have a goy do it?

In truth the placement of R. Akiva Eiger's question is difficult. At the end of Tosafos because the distinction at the beginning of Tosafos is only a hava amina before Tosafos develops that there is no issur at all. In the end of Tosafos they make a practical distinction between the mador elyon and mador tachton, whether they can be made by others. R. Akiva Eiger could have asked his question on what Tosafos actually concludes. The Rashash rejects the question of R. Akiva Eiger by saying that we are not dealing from the perspective of those making it, we are dealing from the perspective of once it was already done whether it can be maintained. It may be assur to commission a goy to make it, but once it is done there is no issur in purchasing the machzor and using it.

Yoma 46b - Hutra or Dechuya

http://hearos.blogspot.com/2013/11/yoma-6b-hutrah-and-dechuya.html

The Rambam writes that Shabbos is dechuya in a situation of pikuach nefesh. The Kesef Mishna says that his source is from tu'mah where we pasken it is dechuya and not hutra. The Maharatz Chiyus asks from our gemara. How does the kesef mishna assume that since tu'mah is only dechuya, therefore shabbos is also only dechuya? Our gemara makes an assumption that shabbos is hutra for the korban tamid, yet tu'mah is only dechuya. We see from here that although tu'mah is only dechuya, shabbos can be hutra, so how does the kesef mishna make the assumption that they should be the same?

In my opinion the kesef mishna is correct. The issue is not a shabbos vs. tu'mah issue, rather the reason our gemara assumes that shabbos is hutra for korban tamid is because the mitzvah of korban tamid is meant to be done on shabbos. The system was set up with the natural conflict and the resolution being to bring the korban tamid even on shabbos, therefore rendering it hutra. However, when the two events conflict by chance or by circumstance, then it is dechuya, not hutra. Therefore, tu'mah b'tzibur is only d'chuya. Shabbos in the place of pikuach nefesh is also only dechuya because it is just circumstances of someone being in a life threatening situation that creates the conflict. Therefore, it is legitimate to learn shabbos for pikuach nefesh from tu'mah, and not learn from shabbos for korban tamid.

Yoma 42a - Is a kattan a la'av bar da'as?

The gemara quotes a mishna in Parah where the Tana Kama and R. Yehuda argue who is kasher for the kiddush (mixing ash and water) of parah adumah. T.K. holds that a חרש שוטה וקטן cannot do it, but a woman can. R.Y. holds the exact opposite, a woman cannot, but a child can. Regarding the machlokes of whether a woman can do it, the gemara says that they argue whether ונתן is meant to exclude ונתנה. But regarding the machlokes of whether a child can do it, the gemara says that they argue whether we darshen ולקחו to be inclusive, and therefore forcing us to include a child. It is understandable that R. Yehuda would normally exclude חרש שוטה וקטן from everything, but here the pasuk forces an inclusion. But why does he just include a child and not a חרש ושוטה? Tosafos writes: והא דמכשיר טפי בקטן במחרש ושוטה, יש לומר משום דאתי לכלל דעת. Since a child will out grow his לאו בר דעת status, it is more logical to include a child, rather than including a חרש ושוטה who are permanently fixed in their לאו בר דעת status.

The Chazon Ish (Parah 11:11) points out that when we include a child, we are obviously only including a child who is of age to make rationale decisions and would objectively be considered a בר דעת if not for the Torah excluding him. A child who is so young that he is essentially a שוטה would certainly be passul even according to R. Yehuda both for kiddush of the ash and water, and for the sprinkling. The machlokes is only about a child who has some level of intellect that we would consider a בר דעת in general - אלא שגזירת מלך הוא שאין דעתו מספקת במצות התורה אם לא היכי דאתרבי.

From the Chazon Ish it sounds like the real distinction between a child and a חרש ושוטה is that the latter are essentially not בר דעת, whereas a child has achieved some level of da'as that requires a גזירת התורה to consider insufficient for mitzvos. Therefore, if we have a pasuk we apply it to include a child faster than applying it to include a חרש ושוטה.

To me it seems that this approach doesn't fit well in Tosafos. If the advantage of a קטן is that he actually has a higher level of intellect that a חרש ושוטה, why would Tosafos write that his advantage is that he is אתי לכלל דעת, meaning he will come to be a bar da'as, rather than writing that he is included because he is already a higher level intellect than a חרש ושוטה. To me it seems from Tosafos that we are speaking about a child who is no more rational than a חרש ושוטה, yet we include him for kiddush since he has the advantage that he will become a bar da'as. The sevara seems to be that although he is no better now, it is a מום עובר, a blemish that will pass in due time. Since we are forced to include someone from the extra pasuk, we include a child.

Furthermore, we find that for other things we categorize a חרש together with a קטן and only consider a שוטה  to be a real לאו בר דעת. The halacha is that a child can make a kinyan when there is a דעת אחרת מקנה, someone else giving it to him. The Rambam (Mechira 29:4) implies that a shoteh cannot make a kinyan even with דעת אחרת מקנה - see magid mishna. The Ketzos (243:4) assumes that a חרש is like a child who can make a kinyan with a da'as acheres being makneh, it is only a shoteh who is a complete non-bar da'as who cannot. If the Chazon Ish were correct that the present intellect of the child is what makes him stand out, we should have included a חרש together with him since for kinyan we assume them to have the same level of intellect. The fact that we don't include a חרש for kiddush implies as Tosafos writes that the advantage of the child is not his present intellect, but rather that we regard his lack of intellect as a temporary problem.

Yoma 42a - Saying Bifanai Nichtav on a Gett

Rav Mendel Senderovic shlit"a has a letter printed in his sefer Atzei Besamim (38), that he sent to Rav Nota Greenblatt shlit"a asking what is the appropriate language for the shliach who brings a gett to use. The halacha demands that when a shliach delivers a gett outside of EY he must declare at the time of delivery - בפני נכתב ובפני נחתם, confirming that it was written and signed in his presence. However, what often happens is that the sofer ends up as the shliach, so the question becomes whether to stick with the precise nusach of בפני נכתב ובפני נחתם that was instituted by chazal, or modify the nusach to be אני כתבתיו ובפני נחתם which is more accurate. Rav Senderovic points out that it seems to be a dispute between the Radvaz and Panim Meiros. Rav Nota responded that his custom is to say the standard בפני נכתב ובפני נחתם then to deliver the gett into the hands of the woman, and immediately to say אני כתבתיו ובפני נחתם. 

I am also in this situation quite often where I am the sofer and the shliach. I do what Rav Nota suggested and what I have seen him do (However, I didn't notice that Rav Nota was careful to say אני כתבתיו ובפני נחתם specifically after the delivery, rather he says בפני נכתב ובפני נחתם אני כתבתיו ובפני נחתם as one continuous phrase and immediately places the gett into her hands, which is what I do as well.)

There is a strong proof from the gemara on todays Daf that the language of בפני implies that it was done in your presence, but that you weren't actually the one doing it, thereby demanding a modified language so that the testimony isn't false. The gemara says that the pasuk ושחט אותה לפניו by the para aduma implies שיהא זר שוחט ואלעזר רואה. Meaning, the fact that the Torah says that it is done in the presence of Elazar implies that it is NOT done by Elazar himself, and is used as a source that the shechita of the parah doesn't need a kohein. Similarly, the language of בפני נכתב would imply that it was written by someone else in the presence of the one saying those words, but not by the person himself. Therefore it would make sense that the phrase should be modified to clearly state that the shliach himself did the writing of the gett.

Yoma 34b - Tziruf

The gemara asks how they were able to heat up the mikvah of the kohein gadol with hot metal since by immersing it into the water it would harden the metal and would be metzareif it which is an issur on shabbos and yom kippur. Rav Bibi says that by the time they would immerse it in the water it wouldn't be that hot and would not be metzareif the metal. Abaye disagrees and says that even if it were hot that it could come to tziruf, it was permitted since it was a דבר שאינו מתכוין. The gemara challenges this by Abaye himself who seems to understand that the pasuk permitting cutting off tzaraas to do bris milah is necessary for R. Yehuda who holds that a דבר שאינו מתכוין is assur, implying that this is Abaye's opinion. The gemara answers that on a melacha d'oraysa it would be assur even if one was not mechavein, but tziruf is only d'rabonon. Meaning that since it is a דבר שאינו מתכוין on an issur d'rabonon, it is mutar. Tosafos explains that according to Rashi tziruf would only be d'oraysa on a kli, but on a piece of metal would just be d'rabonon.

Tosafos cites the R"i who learns the gemara differently. Abaye was only suggesting that a davar she'eino miskavein was not assur on a torah level, it was only assur m'drabonon. The gemara challenges this from mila where we need a pasuk to change the default of a דבר שאינו מתכוין אסור מן התורה, and answers that since by shabbos there is an additional requirement of מלאכת מחשבת, even R. Yehuda would admit that a דבר שאינו מתכוין by shabbos would only be drabonon. Since it is only d'rabonon, we are meikel in the beis hamikdash for the need of the avoda. Based on Tosafos we can prove that R. Yehuda only considers a דבר שאינו מתכוין to be an issur d'oraysa by other issurim, but not by Shabbos.

According to Tosafos it is easier to understand why the mishna only permitted this when the kohen was old or an istanis. If the kohein could bear the cold water it would be assur since it would not be necessary in the running of the beis hamikdash and would not be a need of the avoda. According to Rashi it should have even been permitted for a young kohein.

R. Akiva Eiger cites the pri chadash to support Tosafos. If it were permitted even outside of the mikdash, why is it only mentioned as being done by the mikva that was בבית הפרוה and build in kodesh, not in the first mikvah which was built בחול. According to Tosafos it is understandable that since we are relying on the concept of אין שבות במקדש, it can only apply within the area that was kodesh and could not be done by the first mikvah that was built b'chol. To answer for Rashi we need to say that one tevila he would be able to handle the cold, and this was only a need for the mikvah where he would have to immerse 4 times.

Yoma 33b - Ein Ma'avirin Al HaMitzvos

The Radvaz (Teshuva 522) writes that the concept of אין מעבירין על המצות  is only d'rabonon  and that the drasha of ושמרתם את המצות is only an אסמכת. According to this approach the requirement to do the דישון מזבח הפנימי prior to the הטבת הנרות is only m'drabonon, but m'doraysa there is no particular order. The Radvaz proves this from the approach of Rabbeinu Tam (cited in tosafos) that one must be careful to put their tefillin in the bag in a way where they will not be forced to pass by the tefillin shel rosh to get to the tefillin shel yad. The implication is that if their shel rosh was on top, they would indeed pass their shel rosh, violating אין מעבירין על המצות to put on their shel yad first (to maintain the order of the pasuk). The Radvaz explains that if אין מעבירין על המצות would be d'oraysa, why would we violated the issur of passing by the shel rosh, just to fulfill the mitzvah of putting on the shel yad first. Therefore, he concludes that the entire concept must only be d'rabonon, so the order of the pasuk which is d'oraysa trumps the issue of אין מעבירין על המצות. 

The Maharatz Chiyus challenges the Radvaz based on Rashi in Succah 25b who implies that the concept of אין מעבירין על המצות is indeed d'oraysa. It seems to me that Rashi here also implies that it is d'oraysa. When the gemara discusses how to use the extra terms בבקר written by the שני גזירי עצים, and rejects an alternate approach because we would have nothing left to use to divide the neiros which the pasuk seems to require. Rashi comments that we could use the דישון מזבח to divide the neiros, 5 before and 2 after. Rashi says this is not possible because that would demand passing the מזבח to get to he menorah and would violate אין מעבירין על המצות. In this context rashi is using אין מעבירין על המצות as a premise to explain the pesukim, clearly implying that it is a torah recognized concept, thereby rendering it d'oraysa.

However, it seems to me that the Tosafos Yeshanim understands that it is only d'rabonon. Tosafos Yeshanim ask why do we need to say that the wood on the ma'aracha of the outer mizbeiach (שני גזירי עצים) proceeds the דישון מזבח הפנימי because of the burning wood is hechsher mitzvah, it can simply be because of אין מעבירין על המצות and one reaches the outer mizbeiach first. Tosafos Yeshanim answers that there would be an alternate logic that things done inside the heichal are more important - מצות פנים עדיפא, which would have overridden אין מעבירין על המצות, so we need the sevara of מכשיר עדיף. If the logic of מצות פנים can override the issur of אין מעבירין על המצות, it must be that he is understanding that אין מעבירין על המצות is only d'rabonon because if it were d'oraysa, how can a sevara override it! This would support the Radvaz.

Yoma 22b - Later Actions Indicating Earlier Intentions

The gemara says that when Hashem commanded Shaul to wipe out Amalek, he made a kal v'chomer that if an egla arufa is brought for one life, how can he take so many lives. Furthermore, even if the people deserve to be killed, what did the animals do! A bas kol went out and said אל תהי צדיק הרבה. The exact opposite happened when Shaul killed out the entire city of Kohanim, Nov. A bas kol went out and said אל תרשע הרבה. The gemara continues to explain that Shaul only did one aveira and that caused him to lose the throne, whereas Dovid did more aveiros and did not lose the throne. The gemara considers the aveira of Shaul to be the ma'aseh with Agag, not killing amalek. Even though he also sinned by killing out Nov, that didn't count in why he lost the malchus, because it was already lost from before.

The concept behind this gemara seems to be very similar to what we find by Yosef. In parshas vayigash, when Yosef finally reveals himself, he questions whether his father is still alive. The Beis Haleivi has a fascinating essay where he explains based on a Midrash - אוי לנו ליום הדין, that Yosef was giving them very sharp mussar. The claim that the brothers were making throughout all their discussions with Yosef is that they feared the health of their elderly father Yaakov and that was their primary concern. By Yosef revealing himself, he was essentially undermining all their arguments. Had they truly been concerned for Yaakov, they would never have sold him which caused Yaakov 22 years of extreme grief and suffering. The revelation of Yosef was done in the format of אני יוסף העוד אבי חי - "I am Yosef, Is my father still alive", meaning, could my father have tolerated the suffering that you caused him all these years. Yosef was able to show that all their arguments until now which seemed very legitimate, were all a smokescreen and not their true intent.

Shaul claimed to have spared the women and animals of amalek due to his compassionate nature. However, the ruthless murder of the kohanim in Nov indicated that he was not a man of compassion, thereby undermining any excuse he may have had for not killing amalek. That is the intent of the gemara, אל תהי צדיק הרבה and אל תרשע הרבה, because the latter event undermined his justification for the earlier one.

If Shaul was not truly motivated by compassion, why then did he kill out the city of Nov? The gemara says at the bottom of the daf  - מפני מה נענש שאול? מפני שמחל על כבודו, referring to the story of nachash ha'amoni, not willing to kill those who rebelled agains him. Rashi seems bothered by the question of the gemara, because the gemara already established that the reason Shaul lost his throne was because of the ma'aseh agag, not killing amalek. Therefore, Rashi explains what caused him to come to the action that was the reason for losing his throne. Meaning, what midah caused the problem? The midah of misplaced humility, being mochel on his kavod when as a king he must uphold his honor and instill אימה over the people. שום תשים עליך מלך - שתהא אימתו עליך, is the reason that a king can't be mochel. This was the midah that caused Shaul to lack the confidence and be scared to assert himself in killing out the entire nation of amalek. The midah of humility is generally good, but a king can't display himself as humble and unassertive. The Tosafos Yeshanim explains that this is what Rav Nachman meant when he said that Shaul was like a one day old child - שמלוכלך בטיט ובצואה, filthy in his excrement. He meant to say that Shaul was an extremely humble person. The Tosafos Yeshanims struggles with why he was punished (by being scared through mal'achim) for saying this, since it was a compliment. It seems that the answer is, that although it was a compliment in terms of Shaul's personality and character traits, it is an inappropriate midah for a king to display publicly.

Yoma 14a - Kohen Gadol as Onen Even If Divorced

The gemara cites a braisa that says a kohen gadol is makriv korbanos as an onen but doesn't eat from the korbanos. R. Yehuda argues and says that although min hatorah he can be makriv as an onen, m'drabonon we don't allow him to because we are afraid he is going to come to eat from the korbanos. Only at night where his status of aninus is only d'rabonon would we allow him to be makriv because we won't make a gezeira that he will come to eat since the issur of eating itself is only d'rabonon (Tosafos). The gemara then challenges R. Yehuda from the mishna where we see that even though the kohen gadol's wife died that day so he is an onen, he is still makriv. The gemara responds that Yom Kippur is different because no one is eating so we aren't concerned that he would eat. At the end of the sugya, the gemara challenges why we are assuming that the kohen gadol in our mishna is actually an onen since we have established that in the event of her death, he divorced her retroactively. The gemara answers that although he is not technically an onen, but אטרודי מי לא מיטריד - he is in a confused and distracted state.

The gemara is very difficult, why does the gemara assume that even though the kohen gadol isn't technically an onen, we would make a gezeira that he may come to eat from the korbanos. Since he is not an onen, who cares if he eat the korbanos? Rashi explains that for the eating of kodshim there is a requirement of simcha - כדרך שהמלכים אוכלים. Since there is a requirement to eat the kodshim with simcha, he would be violating this if he were to eat, therefore it would be appropriate to not allow him to do avoda since he may come to eat from the korbanos (if not for the fact that it was yom kippur and no one is eating).

The Cheshek Shlomo (Rav Shlomo Vilna) cites the Mishna L'melech (Avel 3:10) who is me'supak whether the eating of kodshim in the state of טרדא, but not actual אנינות, would be only an issur d'rabonon or even an issur d'oraysa. The Cheshek Shlomo says that he doesn't understand the question. If the concept of טרדא would only be d'rabonon, we shouldn't make a gezeira to prevent the kohen gadol from doing the avoda because he may come to eat, just like we don't make the gezeira at night since aninus at night is only d'rabonon. The fact that we are gozer that he can't do the avoda because he may come to eat proves that actualy eating in the state of being ta'rud of the wife that he was married to (and just divorced), would be the violation of a d'oraysa - למשחה, כדרך שהמלכים אוכלים.

Although according to Rashi's learning of the gemara the cheshek shlomo seems to be correct that the fact that we make a gezeira shows that actually eating in a state of tirda would be a violation of a d'oraysa. The Tosafos Yeshanim has an entirely different approach to explain the gemara's answer of אטרודי מי לא מיטריד. The gemara is not trying to create a new problem with eating, rather the gemara is trying to explain why we would be concerned that he would eat even if he is not an o'nen. The gemara is saying that since he is so ta'rud and distraught over the loss of his wife, there would be reason to make a gezeira that he may come to eat on yom kippur and violate the issur of eating on yom kippur if we allow him to be makriv korbanos. In other words, the sevara of ta'rud does not need to create a new issur of eating kodshim. It is clearly assur to eat because we are speaking about yom kippur. The sevara is just to explain why we thought to make a gezeira that he will come to eat on yom kippur if we allow him to be involved in korbanos, which is normally not a concern. Based on this approach there is no concept at all of ta'rud being a violation of למשחה - כדרך שהמלכים אוכלים.

Yoma 8b - Function of Prisha for Yom Kippur

It is somewhat unclear from the sugyos what exactly the function of prisha is. At first glance it would seem to be for the purpose of tahara, but this cannot be. The gemara 6a asks, that although Rav Yochanan learns from miluim and Reish Lakish from Sinai that there needs to be prisha, why do we need to separate him from his wife. The gemara responds that there is an additional concern of tu'mah (which the gemara explains on 4a that Reish Lakish requires 7 days, as opposed to the 6 day prisha of Sinai). Clearly, the gemara holds that there is a purpose of prisha that is learned from miluim or sinai, even if we would not maintain chumros of tahara. Another option of what prisha accomplishes is to keep people away from him to avoid tu'mas meis. However, the gemara 6b debunks this possibility as well because the gemara (as explained by rashi) takes for granted that he is allowed to have visitors and we are not concerned that they will drop dead while visiting him. The braisa 4a also describes that there are kohanim working with him all 7 days to teach him how to do the avoda. We are still left with the question, what is the definition of prisha?

The gemara cites a braisa contrasting the prisha of the kohein on Y.K. and the prisha for the parah aduma. The braisa says - שזה פרישתו לקדושה ואחיו הכהנים נוגעין בו, וזה פרישתו לטהרה ואין אחיו הכהנים נוגעין בו. The braisa holds that the function of prisha for parah aduma was clearly a tahara issue, but for Y.K. was not primarily a tahara issue, it was for the purpose of "kedusah". What does this mean? Rashi writes that it is a preparation for entry to the machaneh shechina by separating him to not be arrogant and not be frivolous, in other words, putting him in a serious state of mind. It seems that according to Rashi the function of the prisha is a mental preparation for the avodas hayom.

Tosafos on 2a (d.h. mai shena) writes explicitly that the definition of פרישתו לקדושה means that since he was going to be doing avoda in the kodesh hakadashim, they would separate him into a chamber that was built b'kodesh. Although Tosafos 6a (d.h. m'beiso) writes that the lishkas parhedrin was built b'kodesh (machaneh shechina - azara) but open into the chol (machaneh leviya - ezras nashim), so that it would not have kedusah of azara (to enable him to sit and sleep there). Why is this considered פרישתו לקדושה since the place didn't actually have kedusha status? Tosafos 8b offers two approaches. The first approach is that since it was built in the azara which had kedusha of machaneh shechina, it was considered פרישתו לקדושה even though the actual chamber didn't have kedusha. A second approach is the opposite, it was built in chol and open to kodesh so the inside had kedusha for the purpose of eating kodshei kodshim. Nevertheless, since it was built b'chol not b'kodesh, it didn't have full kedusha of the azara so he was able to sit and sleep there. Tosafos at the end rejects the second approach and holds that if it is open to kodesh, sitting would not be allowed.

Tosafos clearly holds that the function of prisha for the kohen gadol before Y.K. is to place him in a kadosh place as preparation for avoda לפני ולפנים. The difficulty with this approach is that Tosafos explains the question of the gemara on 6a - מביתו למה פירש to mean that although we need to separate him, why should we put him in the lishkas parhedrin where he can't be with his wife, we should put him in one of the mechilos that didn't have kedusha where he can be with his wife? The gemara answers that there is an additional concern of tu'mah. The question of the gemara implies that the function of prisha cannot be to put him in a place of kedusha, because if that were the case, it wouldn't makes sense for the gemara to suggest that instead we should put him in one of the mechilos that didn't have kedusha?

Yoma 8a - Broken Tzitz

The gemara says that if the tzitz is broken, all agree that it doesn't offer kappara. The machlokes is only when the tzitz is in tact, but not being worn. Rav Yehuda holds that it is only מרצה while it is worn, and Rav Shimon holds that it is מרצה even when hanging in the closet. Why does the gemara speak about a "broken" tzitz, it could have said a simpler nafka mina such as when there is no tzitz at all?

Furthermore, the gemara says that according to Rav Shimon the reason that the tzitz is not mechaper when it is broken is because we darshen the pasuk - על מצחו ונשא, only when it is fit to be worn would it offer kappara. Why does the gemara need a pasuk to say that a broken tzitz is ineffective, it is obviously ineffective since it is broken?

It seems clear that the gemara specifically speaks about a broken tzitz, rather than there being no tzitz at all. The case of the broken tztiz is where the tzitz is still in tact, but it is broken in a way that it is unable to be worn without repair. Therefore, it still retains the status of a tzitz, so it would be possible that it is מרצה even in its present state, but Rav Shimon darshens from the pasuk that although the tzitz doesn't actually need to be worn, it only works to be me'chaper when it CAN be worn. The Maharatz Chiyus points out that the gemara is darshening the pasuk to require ראוי לבילה, meaning  כל הראוי לבילה אין בילה מעכבת בו וכל שאינו ראוי לבילה בילה מעכבת בו. If it is fit to be worn, it works without being worn, but if it is unfit to be worn, it doesn't offer kapparah. Being that the tzitz is actually in tact, just "broken" from being able to be worn, Rav Shimon requires a pasuk to teach that it isn't מרצה.

Yoma 6b - Hutrah and Dechuya

There is a machlokes in the gemara whether tu'mah is hutrah or dechuya b'tzibbur. The gemara has two versions of the machlokes. According to the first version, if there are tahor kohanim in the beis av that is serving on that day, you must use the tahor kohanim. The entire machlokes would be whether you bring kohanim from a different beis av. According to the second version, even if there are tahor kohanim within that beis av, the opinion who holds טומאה הותרה בצבור, it is completely mutar and therefore one can even lichatchila have the tamei kohanim do the avodah. The Gevuras Ari points out that on a d'oraysa level there doesn't seem to be any grounds for a distinction between having tahor kohanim within that beis av or in a different beis av. Therefore he assumes that according to Rav Nachman that טומאה הותרה בצבור, on a d'oraysa level both version would allow kohanim te'meim to do the avodah, the first version which demands that tehorim do the avoda when they are in that same beis av, is only d'rabonon.

The Gevuras Ari also points out that regarding the korban pesach which has active involvement from the tzibbur, it make sense that we look at the entire tzibbur when determining רוב טמאים or רוב טהורים regarding pushing off tu'mah or doing pesach sheini. But, for other korbanos tzibbur which has not communal involvement, it should be completely dependent on the kohanim. Since we pasken like Rav Sheishes טומאה דחויה בצבור, so long as there are any kohanim that are tahor we should need to do it b'tahara, not b'tumah. We should completely disregard the numbers of kohanim that are tamei and the numbers of the tzibbur that are tamei, since there is a possibility of doing it b'tahara. The difficulty with this is the Rambam (Bias Mikdash perek 4) writes that if either rov tzibbur are tamei or rov kohanim are tamei, it pushes off tu'mah. Furthermore, the Rambam seems to even allow people who are tamei meis to enter the azarah. This should be forbidden even according to those who hold טומאה הותרה בצבור, because the heter is only for the kohanim, not for yisraeilim to enter the azarah with tu'mas meis (except for korban pesach). It seems that the Rambam understands that טומאה דחויה בצבור doesn't require one to take every measure to preserve tahara, rather it is preferable to use tahor people but tamei people are also acceptable. Many achronim (sefas emes, gevuras ari, radvaz) question the Rambam (4:14) who says that if MOST kohanim of Yerushalayim were tamei, it can be done b'tumah, which implies that even though there are tahor kohanim, it can be done by the tamei kohanim. The Radvaz explains that the Rambam holds we follow Rov, so we view it as if all kohanim were tamei and allow the tamei and tahor kohanim to do it together. We learn from this Rambam that טומאה דחויה בצבור doesn't demand that we take every measure possible to avoid tu'mah.

There is a big discussion in achronim when one can fulfill a mitzvah with a nicer esrog later, or not with a less mehudar esrog, which one to use. The Shevus Yaakov (quoted in my sefer nasiach b'chukecha page 22) proves from the gemara that we would delay a mitzvah to do it in a more mehudar way later. The fact that we push off the korban to get kohanim from a different beis av, clearly shows that although we can do the mtizvah now, we would push it off to do it מן המובחר later on. The language of the Shevus Yaakov (1:34) is - הרי להדיא היכא דדחויה היא בצבור מהדרינן אחר כהן אחר אף דאיכא שהוי מצוה בזה קודם שימצא להדר אחר כהן אחר, אפ"ה לעשות מצוה מן המובחר עדיף
The proof of the Shevus Yaakov is very problematic. The concept of טומאה דחויה בצבור means that one is only allowed to bring a korban b'tumah once all other options have been exhausted, but if there is even one kohein who can do it b'tahara, it cannot be done b'tumah. Therefore, we would bring kohanim that are tahor from a different beis av, rather than doing it now b'tumah, is not merely a מצוה מן המובחר. Rather it is because the din of טומאה דחויה בצבור only permits it to be done b'tumah when no other option is possible. Since there is a possibility of doing it b'tahara by bringing kohanim from elsewhere, the tu'mah is not pushed off. It isn't an issue of hiddur to get kohanim from a different beis av, rather the entire din of דחויה בצבור doesn't apply when there is an option of bringing a tahor kohein from a different beis av, or even a different mishmar. This doesn't prove anything about a mitzvah which can be performed now just that it can be more mehudar if done later. Perhaps in a situation where the mitzvah can be done now we would not push it off to do it in a more mehudar way later on.
However, if we understand that the concept of טומאה דחויה בצבור just means that it is more advantageous to do it b'tahara, but not essential that it be done b'tahara even where possible, then the proof of the Shevus Yaakov makes sense. It would seem that the Rambam understands exactly that, טומאה דחויה בצבור means that we prefer tahara, but it is not an absolute requirement to do it b'tahara. That is why the Rambam holds that when the majority of kohanim are tamei, even though there are tahor kohanim, we can still have it done b'tumah.

Yoma 2a - Parah Aduma being a Kapara

The gemara says that we learn out from the pasuk that prisha is necessary for both para aduma and yom kippur. The gemara explains that since the Torah uses both the term לעשות and לכפר, it can't just be referring to the para aduma because - פרה לאו בת כפרה היא, parah aduma isn't for a kapara, it is for tahara.

The Sha'agas Aryeh (in his sefer Gevuros Ari) asks based on the Midrash quoted by Rashi in Parshas Chukas, the Parah Aduma offers a kapara for the sin of the golden calf. Rashi cites the famous mashal of the בן שפחה who dirties the king's palace and the mother (parah aduma) needs to come to clean it up. Also, the gemara says in Moed Kattan - למה נסמכה פרשת מרים לפרשת פרה אדומה, לומר לך מה פרה אדומה מכפרת, אף מיתת צדיקים מכפרת. We see clearly that the parah aduma is coming for kapara, why does the gemara say that it isn't for kapara?

The Gevuros Ari answers that it was only the Parah Aduma done by Elazar in the time of Moshe that was serving as a kapara for the golden calf, but the parah aduma that was done in the future was not for kapara. Although the Gevuros Ari maintains this position, he points out that it still doesn't answer the question because maybe the pasuk of לכפר demanding prisha for the kohen gadol is specifically for parah aduma in the time of Moshe. Therefore, the Gevuros Ari concludes that although there is kapara offered through the parah aduma, the main function of the para aduma is for tahara and not to serve as a kapara, unlike Yom Kippur that the very essence of the day is for kapara. It was only אגב גררא מקופיא, that it also came to serve as a kapara for the eigel.

Regarding the first point of the Gevuros Ari that only the Parah Aduma of Moshe served as a kapara for the eigel, not the future parah adumos, it seems to be against Rashi in Chumash. After Rashi explains all the acts of the parah aduma and how they relate back to the eigel, he explains the pasuk (9) - והיתה לעדת בני ישראל למשמרת, that the concept of a mishmeres is that just as the sin of the eigel lingers throughout the generations, so too the parah aduma is למשמרת to linger for future generations. Simply this means that the parah aduma was not a one time thing, rather it was repeated a few time throughout the generations serving each time as a mishmeres for the חטא העגל. Perhaps the Gevuros Ari would interpret that only the ashes of Moshe's parah aduma lingered for many generations and was used for tahara for a very long time.

Regarding the conclusion of the Gevuros Ari that the parah aduma was not primarily for a kapara, rather it was done for tahara. It seems that the idea of it being a kapara is by virtue of the fact that it is being used for tahara. Meaning, the eigel brought tu'mah into the Jewish people, and the function of the parah aduma is to bring about tahara, the opposite of tu'mah. By bringing tahara it is indirectly serving as a kapara to fix the problem caused by the eigel.

The Shulchan Aruch (685) holds that reading the parsha of para aduma is d'oraysa, to which the Magen Avrohom says that he doesn't know what the source in the Torah would be. The Malbim in his sefer Artzos HaChaim says that since we have a mitzvah of zachor to remember how we angered Hashem in the midbar, and the main angering was the חטא העגל, we have an obligation to read the parsha of the eigel. However, since it is degrading to publicly read about the sin of the eigel, we achieve this by covering it up a little and read the parsha of para aduma which is a kapara for the eigel. The Meshech Chochma (Chukas) writes that since within the context of the miluim there is a reference to parah aduma, לעשות אלו מעשה פרה, and there is an opinion that by the miluim the reading of the parsha was me'akeiv (5b), so too by parah aduma the reading of the parsha is essential. According to this it would come out that the Torah reading of Achrei Mos which is the seder of Yom Kippur would also be d'oraysa.

Pesachim 120 - Bracha on Ma'aseh Mitzvah before Kiyum HaMitzvah

In the sugya of mitzvos tzrichos kavana 115a, which speaks about a case where one is using marror for both karpas and marror, there is a machlokes Rav Huna and Rav Chisda whether you make the bracha of על אכילת מרור by the eating of marror, or earlier by the eating of karpas. Tosafos explains that both Rav Huna and Rav Chisda agree to Reish Lakish 114b that mitzvos require kavana and he will not be yotzei the mitzvah of marror with the eating of marror by karpas. Yet, Rav Chisda holds לאחר שמילא כריסו הימנו חוזר ומברך עליה!, it doesn't make sense to eat marror without a bracha of על אכילת מרור and only make the bracha later. Therefore, he should make the bracha earlier by the eating of karpas. Tosafos questions how one is able to make a birchas hamitzvah on the eating of karpas if he isn't going to be yotzei the mitzvah of marror until later. Tosafos writes that the bracha made earlier works since he is going to be eating a little marror at the time of the bracha, even though he isn't going to be yotzei until later. Tosafos even implies that he doesn't need to eat a kezayis at the time of the bracha, so long as he eats a kezayis later on. It seems from Tosafos that one can make a bracha on a ma'aseh mitzvah, even though the kiyum hamitzvah will not be until later.

Perhaps this approach can be supported from the mitzvah of sefiras ha'omer, according to those who hold that there are 49 components to be yotzei the one big mitzvah of sefira. We make a bracha each night on the ma'aseh hamitzvah even though the kiyum is pending until the last night. However, by sefiras ha'omer each night one is at least doing a component of the mitzvah that will ultimately make up the greater mitzvah of sefira. But in the case of Tosafos, the marror that is being eaten as karpas on which he is making the bracha ultimately contributes nothing to the fulfillment of the mitzvah.

Tosafos draws a parallel from shofar where we make a bracha on the tekios d'meyushav, even though the mitzvah d'oraysa is only fulfilled by the teki'os d'me'umad. The Chazon Ish (O.C. 124) points out that this is also a difficult comparison because by shofar there is at least  a mitzvah d'rabonon being done with the teki'os d'me'yushav so that it is not a bracha l'vatala, but by marror there is no mitzvah at all being done with the marror of karpas. What is the comparison? It seems that Tosafos is not focused on the bracha being l'vatala. They take for granted (even though it seems difficult) that since he is doing the ma'aseh mitzvah it wouldn't constitute a bracha l'vatala. The concern of Tosafos is how does the bracha done earlier work for the mitzvah performed later, which they prove from shofar that just like the brachos on tekios d'me'yushav works for the later te'kios d'meumad, so too the bracha on karpas works for the eating of marror later.

There is a machlokes Rashbam 119b and Tosafos 120a whether the primary mitzvah of matzah is fulfilled with the first eating of matzah on which we make a bracha or on the matzah of afikomen. Rashbam understands that it is the matzah of afikomen and therefore draws a parallel from Rav Chisda that a bracha could be made on the ma'aseh mitzvah that is done earlier, and work for the kiyum hamitzvah that will only be later. Tosafos agrees that according to the Rashbam it would be a good comparison, but holds that the primary mitzvah of matzah is fulfilled with the matzah eating l'tei'avon at the beginning of the meal.

Pesachim 113b - Defining the violation to hate "in your heart"

The gemara says that when someone sees another do an aveira, even if there aren't two witnesses so you can't testify on him in a court, you are allowed to hate him. The gemara proves this point from the pasuk that describes חמור שונאך רובץ תחת משאו - the donkey of your enemy crouched under its load. What type of enemy is the Torah speaking about? The gemara says that it can't be someon that you hate for no good reason because that would be a violation of לא תשנא את אחיך בלבבך, therefore it must be speaking about an enemy that you hate because you saw him doing an aveira.

The gemara implies that the ONLY way that one can have a Jewish enemy, yet not be in violation of לא תשנא את אחיך בלבבך would be when you see him do an aveira and are therefore allowed to hate him. There is a big machlokes in the Rishonim regarding the parameters of לא תשנא and why the Torah specifies בלבבך - in your heart. Rabbeinu Yona (sha'arei teshuva 3:39) and the Ramban both say that all hatred is included. The only reason that the Torah writes בלבבך is because that is more common, but the issur would be violated even if he expressed his hatred. However, the Rambam (Hil. Deios 6:10) writes that the only violation is when one hides the hatred in his heart, but when one expresses the hatred they would not be in violation. The Rambam seems to be contradicted by the gemara because the gemara indicates that all hatred would be included. According to the Rambam the gemara should have said that there can be an enemy who you hate for no good reason, but as long as you tell him that you hate him you would avoid the violation of לא תשנא. How will the Rambam learn this gemara?

I think that the Rambam would say that the context of the gemara is defining the term שונאך of the Torah. The Torah is speaking in a context where you would be going to help him unload his donkey. This would be a clear display of love. The very act of helping him would hide the animosity and hatred that you feel for him. Therefore, it could not be speaking about someone you hate for no reason because that would violate לא תשנא את אחיך בלבבך, since the actions of helping him give him the impression that you don't hate him.

Pesachim 105b - Drinking from Kos Shel Bracha

One of the eight points that the gemara draws from the braisa is that המברך צריך שיטעום, when one uses a kos shel bracha, they need to actually drink from the kos shel bracha. I gave a shiur recently on the minhag in many shuls to say birchas hamazon on a kos after shalosh seudos, daven ma'ariv and then return to use the same cup for birchas hamazon. According to the simple reading of the gemara 102b and the Shulchan Aruch 299:4, this should be a violation of אין עושין מצות חבילות חבילות. See HERE for a halachic justification regarding that issue.

Another issue with the predominant custom is how one fulfills the requirement of המברך צריך שיטעום on the kos of birchas hamazon. This would be an issue even if one were to use separate cups for Birchas Hamazon and Havdala, since the drinking is typically not done until after ma'ariv. The Biur Halacha (299:4 d.h. mevareich) explains that as long as one generally makes birchas hamazon on a kos, they are able to drink from the kos of birchas hamazon even before havdala. The M.B. cites the Chayei Adam who holds that even if one typically doesn't use a kos for birchas hamazon, they can still drink immediately following bentching, before making havdala, so long as it isn't definitely night - ספק חשכה. However, in most situations people are not makpid to use a kos for birchas hamazon, and shalosh seudos ends at צאת הכוכבים, so drinking from the kos of birchas hamazon at that point would be a problem. The Biur Halacha writes that in a case where one cannot drink (either because he only has one kos, or because he can't drink before havdala), the Bach holds that one should make havdala on a kos of wine immediately, prior to davening ma'ariv, then drink from both the cup of havdala and the cup of birchas hamazon. Pausing to daven ma'ariv would be too long of a break between the birchas hamazon and the drinking from the cup. This is also clearly the opinion of the shulchan aruch ha'rav. But, the Biur Halacha quotes the Derech HaChayim who says that it is fine to daven ma'ariv in between, which is the minhag ha'olam.

It seems to me that the reservation of the Biur Halacha is correct, and davening ma'ariv between the birchas hamazon and havdala is a problem because the drinking after havdala would not be effective for the kos of birchas hamazon, and would undermine the entire advantage of being bentching on a kos. The Rashbam explains that from the fact that we don't tell the person who needs to eat on Motzei Shabbos and make Havdala, to first make havdala, then eat, then bentch and drink the kos, implies המברך צריך שיטעום. But why is this a violation of המברך צריך שיטעום, he will drink from this very kos after bentching and that would qualify as the the drinking for both the havdala and the birchas hamazon? Clearly, the Rashbam holds that eating a meal between havdala and birchas hamazon would be too much of a hefsek and not allow the drinking to go back on the havdala. Just as the meal would constitute a hefsek, and therefore not allow the drinking afterward to qualify as המברך צריך שיטעום, so too the davening would constitute a hefsek as the shulchan aruch ha'graz holds, not like the minhag ha'olam and not like the derech hachaim.

Pesachim 85a - Breaking Bones of Korban Pesach to Eat Marrow

The gemara cites a machlokes between R. Yochanan and Reish Lakish whether the prohibition to break the bones of the korban pesach only apply to an area of the bone which has a kezayis of eatable meat, or so long as the bone has on it a kezayis of meat there is an issur to break the bone at any point. The gemara says that even according to Reish Lakish who holds that the issur only applies to a spot of the bone that has a kezayis of meat, it doesn't matter whether the eatable part is on the outside of the bone in the form of meat, or on the inside in the form of marrow. Either way, there is a prohibition to break the bones. The gemara clearly maintains that there is an issur to break the bones when there is marrow inside (even if there is no meat on the outside).

The gemara cites a braisa to support this point. The Braisa points out that there is a contradiction between two pesukim that must be reconciled. On one hand the Torah says ואכלו את הבשר בלילה הזה implying that all the eatable parts of the korban pesach must be eaten, including the marrow. On the other hand the pasuk says ועצם לא תשברו בו implying that one may not break the bones, even to get to the marrow. We are forced to limit one of these two pesukim. Either we must limit the mitzvah of eating the korban pesach to the meat on the outside and not the marrow within, in order to uphold the blanket prohibition to break the bones. Or we must limit the issur to break the bones to include only marrow-less bones, but bones in which there is marrow one would be entitled to break so that they can get to the marrow. The braisa continues that the latter approach is plausible since we find that there is a concept of עשה דוחה לא תעשה, as if the mitzvah of eating korban pesach would push off the prohibition to break the bones. However, the braisa concludes that since we have an extra pasuk by pesach sheini warning against the breaking of the bones, the Torah is indicating that the bones cannot be broken under any circumstances, even to get to the marrow inside.

Tosafos asks, why would we need a special pasuk to teach not to break the bones. The concept of עשה דוחה לא תעשה shouldn't really work here since it is not בעידנא, meaning that the לא תעשה of breaking the bones is violated prior to the performance of the aseh. In such a situation we do not allow the aseh to push off the lo ta'aseh. Why would we need an extra pasuk by pesach sheini? Furthermore, the paradox is not absolute. One can fulfill the mitzvah of eating the marrow without breaking the bones. Since the paradox can be reconciled by using a coal to burn through the bone rather than breaking it, it is considered אפשר לקיים שניהם so we don't allow the aseh to push off the lo ta'aseh. In short, why does the braisa claim to warrant an extra pasuk based on the rule of עשה דוחה ל"ת. Since it is not בעידנא and it is אפשר לקיים שניהם, there are two reasons for us not to apply the concept of עשה דוחה לא תעשה to this case? Tosafos only answers the second question by saying that if the problem of the coal is because it will burn through some of the marrow and be a violation of הפסד קדשים, it is not a possibility and therefore is considered אי אפשר לקיים שניהם. However, the first question of Tosafos still remains?

I would suggest that the braisa never meant to apply the technical concept of עשה דוחה לא תעשה. The braisa is actually suggesting that due to the inherent contradiction between the mitzvah of eating the meat and marrow, and the issur of breaking the bones, we should limit the issur to only apply to bones that have no marrow. This is not applying the concept of עשה דוחה לא תעשה because that concept does not limit the lo ta'seh, rather it overrides it. The braisa is only saying that conceptually one should not find it strange that the mitzvah of eating the korban pesach would prevail over the issur to break the bones, forcing us to limit the issur, because we always find that an aseh pushes off a lo ta'aseh. The braisa doesn't met to apply the technical concept, just draw a conceptual parallel to justify limiting the issur to bones with no marrow.

Rashi also asks the second question of Tosafos. Why does the gemara consider there to be an absolute contradiction between the mitzvah to eat the korban pesach and the issur to break the bones, they can both be fulfilled by using a coal to burn through the bone? Rashi answers - דלא מצריך ליה קרא מילתא דאתי בה לידי תקלה דלמא פקע, the torah wouldn't require doing something that can cause the breaking of the bone. At first glance, Rashi is very difficult to understand. The gemara on 84b was very clear that this concern of דלמא פקע is only Rabbinic in nature, but on a Torah level using a coal is a good option to access the marrow without violation. How can Rashi say that the Torah itself rejects this option, since the entire concern is only Rabbinic? I would suggest that Rashi is not referring to the Rabbinic prohibition of using a coal to burn through out of concern that it will cause a crack. Even if the Rabbonon never created such a prohibition, Rashi would make sense. Rashi is saying that the Torah would not include the marrow in the mitzvah and obligation to eat korban pesach if there were a significant chance that by doing the mitzvah one would be in violation of an issur. Even if it were permissible m'dorayas and even m'drabonon to use a coal to burn through the bone, since there is a concern that it will break the bone, albeit a small concern, the Torah would not require it to be done to fulfill the mitzvah. In other words, Rashi is saying that we never find that the Torah would obligate a mitzvah at the risk of the violation of an issur. This is a fascinating yesod!