Sanhedrin 103b - Amon and Mo'av

The gemara talks about the advantages of providing food for people (le'gima). The gemara considers this to be the reason that the Torah requires us to distance Amon and Moav, and not allow them to marry into Yisroel. The Maharsha points out that the gemara indicates that this reason applies to both Amon and Moav, unlike the Ramban (Parshas Ki Teitzei) who says that Moav actually did at least sell us food. The Maharsha considers the fact that Mo'av didn't provide food for free to be a significant enough violation for the Torah to distance them, but the Ramban does not.

The Torah (Devorim 23:4-7) writes:

לא יבא עמוני ומואבי בקהל השם וכו' על דבר אשר לא קדמו אתכם בלחם ובמים בדרך בצאתכם ממצרים, ואשר שכר עליך את בלעם בן בעור וכו' ולא אבה ה' אלקיך לשמוע אל בלעם ויהפך השם אלקיך לך את הקללה לברכה כי אהבך השם אלקיך, לא תדרוש שלומם וטובתם כל ימיך לעולם

The Ramban understands that the first reason אשר לא קדמו אתכם וגו applies to Amon, and the second reason ואשר שכר עליך את בלעם applies to Moav. The S'forno has a similar approach. Although the S'forno isn't exactly like the Ramban and does hold Moav accountable for not providing food for free, the combination of the fact that they also hired Bil'am is the reason to distance them.

There are two serious questions on the reasons given by the Torah.

1. Why would the Torah stick in a seemingly superfluous pasuk - ולא אבה ה' אלקיך לשמוע אל בלעם ויהפוך ה' אלקיך לך את הקללה לברכה?

2. Why does Amon come before Mo'av since the aveira of Mo'av seems worse. Amon was a passive aggressor by NOT providing, whereas Mo'av was an active aggressor by hiring Bil'am?

The Alter from Kelm (chochma u'mussar - mama'ar 12) explains based in the Ramban that the obligation of hakaras ha'tov is so important that a passive violation of not showing hakaras hatov is worse than an active violation of hiring bil'am. In the zechus of Avrohom, Lot was saved and they had an obligation to show hakaras ha'tov, and they did the opposite. Although both actions showed a lack of hakaras hatov, the Torah is specifically trying to teach that a lack of hakaras ha'tov, even passively, is deserving of being distanced from klal yisroel forever.

It seems to me that it is for this reason that the Torah goes out of its way to say that the hiring of bil'am to curse Yisroel wasn't effective. Had the Torah not pointed this out, the implication of the passuk would have been that we distanced them because of the damage that they caused us. The Torah therefore writes that they didn't damage us because Hashem refused to listen and turned the curses into blessings. Ultimately, the hiring of Bil'am benefited the Jews and didn't cause us any damage, yet we distance Mo'av - it is not because of their actual impact, rather because of their lack of hakaras hatov.

Sanhedrin 101b - Bas Pharoh and Shlomo Oversleeping

The gemara says that Yerov'am was justified in giving mussar to Shlomo HaMelech for closing the gates of those going up to Yerushalayim for Yom Tov for the sake of doing "angarya" for the daughter of Pharoh. Rashi explains that Shlomo was trying to force the Jews to either pay taxes or tribute to her on their way in to Yerushalayim. But, Rashi offers a 3rd peshat - Shlomo would lock the doors of the courtyard of the Beis HaMikdash and hold the key. He would generally sleep until the 3rd hour of the day and the Jews would patiently wait for him to open the doors before sacrificing the morning Tamid, and Yerovam accused him of wanting payment toward Bas Pharoh as a condition to hand over the keys.

I once heard a shiur from Rav Nota Greenblatt where he explained a Rambam in Temidin U'musafin (1:2) who writes about the appropriate time for the sacrificing of the Tamid -

ואימתי זמן שחיטתן של בקר? שוחטין אותו קודם שתעלה החמה משיאור פני כל מזרח, ופעם אחת דחקה השעה את הצבור בבית שני והקריבו תמיד של שחר בד' שעות ביום

At first the Rambam writes that the Tamid must be brought when the Eastern side lights up, no later, but then goes on to quote a story in the second beis hamikdash where it was brought later. After much elaboration and build up to explain the concept, Rav Nota explained that by korbanos the kashrus of the korban is not necessarily dependent on the fulfillment of the mitzvah. Regarding the mitzvah, the last moment to bring the korban is משהאיר המזרח, but regarding the kashrus of the korban it is still valid until the 4th hour of the day. Therefore, the Rambam quotes the situation where it was once brought late, indicating that it is still kasher, but the mitzvah has been lost. He supported this argument based on a Rabbeinu Yona in Brachos. Rabbeinu Yona (4th perek 18 in pages of Rif) on the testimoney of Rav Yehuda Ben Bava about the Tamid being brought at the 4th hour, writes -

ואומר במדרש שהמלך שלמה היה ישן עד ג' שעות כמו שדרך בני מלכים לעמוד בג' שעות, ופעם אחת הטעתו בת פרעה וישן עד ד' שעות והקריבו תמיד של שחר בד' שעות, ומזה היתה קבלה ביד ריב"ב והעיד שתמיד של שחר קרב בד' שעות

Rabbeinu Yona explains that the testimony of Rav Yehuda was based on the story of Shlomo where it was once actually brought at the 4th hour. The Hagahos Ma'aseh Ilfas (printed after the Rif in the vilna shas) asks that the midrash continues that Shlomo was harshly rebuked by his mother Bas Sheva, or according to some versions was rebuked by Yerovam Ben Nevat, implying that it was against the din to sacrifice the Tamid so late in the day. This midrash is also quotes by rashi in Mishlei 31 - when shlomo married bas pharoh on the day of the chanukas beis hamikdash, he stayed awake all night listening to music and therefore over slept the next morning until the 4th hour. Since the keys were under his pillow, the Tamid was brought in the 4th hour and Bat Sheva rebuked him for this. How then can we learn from here that it is permissible to sacrifice the Tamid until the 4th hour - this was a mistake of Shlomo's for which he was rebuked? Rav Nota explained that this could have been the Rambam's source. In the 4th hour the korban is still kasher, yet Shlomo was rebuked by his mother because the time that the mitzvah of bringing the korban can be fulfilled had expired.

The difficulty with this approach is that both Rabbeinu Yona and Rashi by us seem to describe that had Shlomo woke up at the 3rd hour, as he routinely did, he would not have received rebuke. Yet, according to this approach in the Rambam, the z'man mitzvah had already passed when the Eastern side lit up (way before the third hour). Furthermore, if the mitzvah of Tamid cannot be fulfilled in the 4th hour, why does Rav Yehuda hold that one can daven in the 4th hour? Shouldn't the mitzvah of tefilah be bound to the mitzvah of the Tamid rather than just the kashrus of the Tamid?

Sanhedrin 99b - Mega'leh Panim L'Torah and Apikores

The gemara offers possibilities for the definition of מגלה פנים לתורה and אפיקורס. Rashi explains that the language of megaleh panim implies that it is worse than an apikores. Rashi seems to understand that apikores comes from the language of hefker, but megaleh panim is worse because he exhibits tremendous chutzpah against those who study Torah, or creates drashos for the sole purpose of making a farce of the Torah like menashe ben chizkiya.

However, the Rambam defines an apikores as someone who rejects prophesy or rejects Hashem's awareness about people, and defines megaleh panim l'torah as one who does blatant aveiros publicly in a way where he exhibits the chutzpah of not being at all embarrassed about his violations (Teshuva 3:8, 3:11). The kesef mishna already points out that the Rambam seems to have different definitions than the gemara for these terms. The Maharatz Chiyus points out that the Rambam seems to get his definition of megaleh panim l'torah from the yerushalmi who also points to yehoyakim the king of Yehuda who violated aveiros openly. However, the Rambam himself in his commentary on the mishna (immediately before the 13 principles) writes that apikores is an aramaic word for one who is mafkir and degrades the Torah and those who study it. This seems to conform with the gemara definition, and the Rambam doesn't even mention the possibility that rejecting prophesy would also fall under this heading.

Furthermore, the Rambam (Teshuva 3:8) creates a category called a "kofer b'torah" under which he includes: 1. One who denies the Torah being from Hashem including even one pasuk or word. 2. One who rejects that Torah sh'bal peh comes from Hashem. 3. One who says that any mitzvah in the Torah has been retracted or replaced. The Rambam doesn't associate this with being me'galeh panim l'torah. However, in the 13 principles (#8), the Rambam includes anyone who says that even a seemingly irrelevant pasuk is not from Hashem, or one who rejects the divinity of Torah sh'bal peh, and writes that one who takes these positions is a kofer and megaleh panim l'torah. The "kofer" categorization is consistent with the Rambam in the Yad, but the megaleh panim l'torah association isn't consistent with the Rambam in the Yad.

Sanhedrin 93b - Judging by Smell

The pasuk says in Yeshaiya (11:3), in reference to Moshiach - והריחו ביראת השם ולא למראה עיניו ישפוט ולא למשמע אזניו יוכיח - the judgement whether one has yir'as hashem will be done by smell, not sight or vision. The idea is explained by the Radak that the sense of smell is very sensitive - without much exposure and even from a distance one can detect an odor with their smell. Similarly, with a keen sense of smell the Moshiach will have the ability to distinguish between the tzadik an the rasha. In our gemara Rava explains that he will be מורח ודאין - smell and judge. From the mere scent of a person, Moshiach will have the ability to judge him. The gemara says that when bar koziva claimed to be the moshiach, he was tested to see if he has this keen sense to judge by smell and when the Rabbonon saw that he lacked this ability he was killed. Rashi in Yeshaiya attributes this keen sense to the wisdom of Hashem - כי בחכמת הקב"ה בקרבו ידע ויבין מי זכאי ומי חייב.

Rav Nota Greenblatt in his sefer "k'reich sadeh" on the haftorah of mikeitz, points out that rashi considers this ability to be a chochmah of Hashem. With this he explains the Rambam (Teshuva 9:2) - מפני שאותו המלך שיעמוד מזרע דוד בעל חכמה יהיה יותר משלמה. What is the source of the Rambam that the moshiach will possess wisdom greater than Shlomo HaMelech? It is from this pasuk that Moshiach will have a sense to be able to judge in ways that we don't see Shlomo was able to judge. Rambam and Ra'avad (Hilchos Melachim perek 11) argue whether the melech hamoshiach must perform a miracle to be trusted. Rambam proves that he doesn't from the fact that R. Akiva himself became a follower of ben koziva and didn't ask for a miracle. But, the Ra'avad holds that he must do a miracle as we see from our gemara that they tested him whether he can judge by scent. Perhaps they argue whether this level of perception is considered a miracle to confirm himself as moshiach, or just an extreme level of wisdom but not miraculous. R. Nota concludes by writing that in every generation we are blessed with gedolim who have this keen sense on some level of "judging by scent" to distinguish between emes and sheker. Sometimes there are issues that come up which the chachamim deem dangerous, but are unable to articulate the exact danger - they are being מורח ודאין - judging with their keen sense of smell.

Sanhedrin 89b - Power of A Navi (prophet) to Violate Din Torah

The Rambam (Yesodei HaTorah 9:3) after emphasizes that the Torah that was given to us by Moshe may not be changed or manipulated in anyway, even by another prophet. The rationale is that included in the prophecy of Moshe is that the Torah will be eternally relevant and obligatory, therefore a lower level prophet who would claim otherwise would be attempting to uproot the prophecy of Moshe. The Rambam then goes on to explain the exception, when a prophet can be followed even though he is attempting to undermine a halacha in the Torah. The Rambam then writes a very cryptic sentence:

וכן למדנו מחכמים הראשונים מפי השמועה בכל אם יאמר לך הנביא עבור על דברי תורה כאליהו בהר הכרמל שמע לו וכו' והוא שיהיה הדבר לפי שעה, כגון אליהו בהר הכרמל שהקריב עולה בחוץ וירושלים נבחרת לכך והמקריב בחוץ חייב כרת. ומפני שהוא נביא מצוה לשמוע לו וגם בזה נאמר אליו תשמעון. ואילו שאלו את אליהו ואמרו לו היאך נעקור מ"ש בתורה פן תעלה עולותיך בכל מקום, היה אומר לא נאמר אלא המקריב בחוץ לעולם חייב כרת כמו שצוה משה, אבל אני אקריב היום בחוץ בדבר השם כדי להכחיש נביאי הבעל, ועל הדרך הזאת אם צוו כל הנביאים לעבור לפי שעה מצוה לשמוע להם

The difficulty with the Rambam is that he first stipulates that it must be temporary, then he writes that "since he is a navi there is a mitzvah to listen to him", and then he points out in response to those who may ask how this can be done, that it doesn't technically undermine the Torah since "I am only sacrificing TODAY out of the mikdash by the word of Hashem TO CONTRADICT THE BA'AL". Although the Rambam mentions 3 points: 1. temporary. 2. he was a navi. 3. it was for the purpose of contradicting avoda zara; he doesn't list all 3 as conditions, rather he uses the first 2 as conditions and the third as a response to the challengers. What is the Rambam trying to get at with this very verbose explanation?

The gemara in Sanhedrin seems to contradict the gemara in Yevamos 90b regarding the conditions under which a Navi can undermine the Torah. The gemara in Sanhedrin focuses on the fact that Eliyahu was "muchzak" (established as a tzadik, and honest navi - rashi). But the gemara in Yevamos is willing to expand this power to the Rabbonon in general, and the only limitation that is placed is that it be "למגדר מילתא", to protect the Torah by undermining idolatry. Tosafos struggles with how these 2 gemaras fit with one another. One approach that of Tosafos is that the ability to undermine doesn't come from prophesy, rather it is the מיגדר מילתא necessity that permits the temporary violation of the Torah. This power is given through the rationale thinking of the chachamim who deem something necessary. However, the only way that the idolatry would have been undermined is if they could trust that the miracle fire would descend from heaven, and for this it was necessary for Eliyahu to be "muchzak" as a navi to believe that it would actually occur. According to Tosafos the license to slaughter out of the mikdash was למיגדר מילתא, but this would have only been achieved by the fire descending from heaven which they could only rely on because Eliyahu was an established prophet.

The Rambam clearly has a very different approach. First of all, the Rambam writes that Eliyahu's response of "אני אקריב היום בחוץ בדבר השם", implies that the decision of Eliyahu wasn't motivated by rational thinking, rather by the prophesy he had from Hashem (lechem mishnah points this out). Since the Rambam understands that the power that permitted Eliyahu to make this decision was prophecy, the question returns on how to reconcile the gemara in Sanhedrin with the gemara in Yevamos?

It seems to me that the Rambam understands that the gemara in Sanhedrin establishes why there is a mitzvah to listen when the Navi says to violate. The gemara says that since he is "muchzak", a well established Navi, there is a mitzvah of ואליו תשמעון, which requires everyone to listen to him. This is all assuming the Navi has the authority to make the declaration to violate the Torah. If he has the authority then we must listen because he is an established Navi. But, what gives him the authority? To that the gemara in Yevamos says למגדר מילתא, which is a temporary uprooting of the Torah for an important purpose i.e. undermining avoda zara, gives one the authority to do it. Therefore, the Rambam rules "Because he is a Navi (meaning an established Navi), there is a mitzvah to listen. But then the Rambam wants to explain how the Navi himself has the authority to undermine the Torah. If he is challenged by the cynics who question his ability to make such a ruling, Eliyahu would respond - אני אקריב היום בחוץ, בדבר השם, כדי להכחיש נביאי הבעל. Meaning, his authority is based on 3 criteria: 1. "Today" - only temporary. 2. "By the word of Hashem" - prophecy. 3. "To contradict the prophets of the ba'al" - for the sake of protecting the Torah.

In short, the Rambam holds that the gemara in Yevamos establishes the authority of the Navi to undermine the Torah - למגדר מילתא, but the gemara in Sanhedrin explains why we must listen to him and trust that his decision was predicated on the authority granted to him - מוחזק.

Sanhedrin 88a - Zakein Mamrei

The mishna gives very specific criteria on what is necessary to be qualified as a zaken mamrei. For example the mishna says that by undermining an entire mitzvah in the Torah one wouldn't become a zakein mamrei, unless they agree to the mitzvah and undermine a detail that is midivrei sofrim. The gemara makes the requirement even more specific in that the divrei sofrim has to be an additional thing, but not something that undermines the entire mitzvah.

The Rambam (pirush ha'mishna) writes that some make a mistake and think that for undermining an entire mitzvah in the Torah, there is no death penalty. The Rambam explains that this is incorrect. Although one wouldn't be labeled as a zakein mamrei, they would be chayev misah. The Rambam writes that one who doesn't believe in "Hashem E'chad" is also killed. Why?

ודאי זה יהרג משום שיצא מן הכלל, כלומר מכלל ישראל, אשר מהם יהיו החוטאים שאחד מהם כלומר אחד מן החוטאים זקן ממרא לפי שאין זקן ממרא ההורס לחומת התורה ולא המחכחיש לכל הקבלה מכל וכל וכו' ולכן חייבתו תורה מיתה לכבוד בית דין ומעלתה וכו' אבל צדוקין ובייתוסין שמכחישין את הקבלה מכל וכל ומסתפקין על הכתוב בתורה וסברתם בהם, אינם מזה הכת, אבל הן מן הכת שאומרים אין תורה מן השמים וכו' אבל הן נהרגין על הכפירה כמו שנהרג המכחש באלקות או מי שמכחש משה רבינן ע"ה כי כל ההורס יסוד מאותן היסודות שאמרתי לך יצא מדין בעל התורה

The Rambam holds that a zakein mamrei is actually a very mild category of those who reject the Torah or the Rabbonon and are really only killed for the kavod of the beis din because they don't ultimately undermine and break down the entire system. But, those who do reject and undermine the Torah are far worse than a zakein mamrei.

Sanhedrin 84b - Surgery to a Parent

The gemara raises the question whether a son can do bloodletting for a parent. Both Rav Masna and Rav Dimi cite sources that indicate it is permitted since it is beneficial for the parent. However, the gemara then quotes two stories, one with Rav and the other with Mar Brei D'ravina who didn't permit their children to remove a splinter and remove puss from a burn, out of concern that they would cause a wound which would be an inadvertent violation (of a chiyuv chenek). The ma'aseh with Rav and Mar Brei D'Ravina seem to contradict the previous gemara which permitted a son to do a surgical procedure for a parent since it is ultimately beneficial for them. There are 3 approached in the Rishonim (cited in Beis Yosef Y.D. 241) to explain this gemara:

1. Rambam makes a distinction whether or not there is someone else available to do it. Rav Masna and Rav Dimi are both speaking when there is no one else aside from the son to do it, so it is permitted. But Rav and Mar Brei D'ravina are speaking when there is someone else, so they didn't permit their sons to do it.

2. Rif and Rosh hold that there is a machlokes. We pasken like the ma'aseh with Rav and Mar Brei D'ravina. Therefore, it is assur for a son to remove a splinter of a parent, or even to let blood for a parent. Even if there is no one else available, so long as it isn't life threatening, it is forbidden.

3. Ramban explains that there is a fundamental difference between blood letting and the removal of a splinter (or letting puss out of a burn). By blood letting the actual wound is the refuah. A son is allowed to give the parent a wound when the actual wound is beneficial and for the sake of refuah. However, in the situation of the splinter and burn, the actual procedure should not result in any wound, but there is a concern that the son will cut more than necessary causing the parent to bleed. Since the wound is not the refuah, it is merely incidental and may result from the refuah, it is forbidden for a son to do it for a parent (unless there is no one else available to do it).

A major question on the entire sugya is whether a parent has the ability to be mochel. Although a parent can be mochel and forgo their kavod, it isn't clear whether mechila would help to allow their son to curse or wound them. The Minchas Chinuch (mizvah 48) assumes that mechila would help for this. He learns this from the Rambam (sanhedrin 26:6) who holds that once a person violated the prohibition of cursing, mechila will not rectify the situation. This implies that if one gave permission in advance for someone to curse, it will work. The minchas chinuch assumes that just as one can be mochel to allow someone to curse him, he and even a parent can also be mochel to allow someone to hit him.

The Turei Even (Megilla 28a) cites a Rivash (teshuva 220) who says that a Rebbi can be mochel on kavod, but cannot give permission to the talmid to degrade him (it is assur for the rebbi to be mochel and the mechila isn't effective). Based on this he assumes that the same would be true for a parent. Although a parent can be mochel on kavod, they cannot be mochel on degradation or to allow their child to hit them.

The Turei Even proves his point from our gemara. Why did Rav and Mar Brei D'ravina not allow their children to remove a splinter or take out puss, they should have been mochel to allow their children to do it? The Minchas Chinuch dealt with this proof by saying that since they weren't expecting an injury, they weren't mochel on it, therefore their children couldn't do it. But had they been fully mochel in the event that the son cuts the parent to cause bleeding while removing the splinter, it would be permitted.

Even the Turei Even cites a gemara in Kiddushin 32a which seems to understand that mechila would permit even a son to degrade a parent. The situation was where Rav Huna ripped silk in the presence of his son to test if he would get angry, but wasn't violating lifnei iver by causing the son to disrespect the parent, because Rav Huna was mochel. We see that mechila would help to allow a son to disrespect the parent, and it should follow that with mechila the son should even be able to hit the parent.

Based on all the above, if a child is a surgeon and receives permission from his parent to do the surgery, even if it isn't pikuach nefesh, when no other doctors is as proficient as the son, it is mutar. According to the Ramban so long as the actual procedure requires the drawing of blood (such as a surgery), we don't consider it to be a wound since the actual surgery is productive and beneficial. Even if it is considered a chabura and should be assur, the Rambam permits if there is no one else. It seems that if there is no one else who is as proficient in the surgery, it would qualify as no one else. Furthermore, even if it considered a chabura, the minchas chinuch holds that a parent has the right to be mochel, and the Turei Even seems to submit based on the gemara in kiddushin.

Sanhedrin 83b - Punishment for Eating Teruma that is Tamei

The gemara says that a kohen who himself is ta'mei would be chayev misah bidei shamayim for eating tahor teruma. However, a kohen who is tamei and eats teruma that is also tamei is not chayev. Why? The gemara learns it out from a pasuk ומתו בו כי יחללוהו - פרט לזו שמחוללת ועומדת. The chiyuv misah is for violating the teruma by eating it and doesn't apply to teruma which is already violated.

The Mishna L'melech (Hilchos Terumos 7:1) questions what the halacha would be for a tamei kohen who eats teruma that is only tamei m'drabonon. Is the kohein chayav misah since on a Torah level the teruma was still tahor and he violated it, or is the chiyuv misah reserved for eatable teruma and since this teruma was tamei m'rabonon and not eatable, he wouldn't receive misah bidei shamayim? The Mishneh L'melech proves his points from a completely different context where a similar question can be asked. The Rambam (Hilchos geneiva 2:8) writes tahat if one would steal and shecht an animal in a way where the shechita would invalidate it only d'rabonon (such as chulin in the courtyard of the beis hamikdash), he is obligated to pay the 4 or 5 payment, since m'doraysa it was a valid shechita. Although the animal is practically inedible, since it is technically permitted m'doraysa, there is a chiyuv 4 or 5. Here too, since the teruma is tahor on a Torah level, the tamei kohen would be chayev.

It seems to me that this can be proven from a more localized din. Tosafos 83b raises a question, how can you have tahor teruma that is still tahor at the time it is being eaten and wouldn't become tamei by the kohen's touching it? Tosafos offers some scenarios such as not being huch'shar (susceptible) to tu'mah. Then Tosafos answers that it would depend on whether the Tuma on the kohen's body preceded the tu'mah on the teruma, or the reverse. Meaning, Tosafos holds that even if the teruma were tamei d'oraysa, the kohen would be chayev misah for eating it if his tu'mah preceded the tu'mah on the teruma. From here we learn that we don't look at whether the teruma is practically eatable or not. Rather, we look at the technical relationship that the kohen has to the teruma. Since the tu'mas ha'guf of the kohen created an issur on him to eat the teruma prior to the teruma itself becoming ta'mei, we consider him to be actively mechalel (violating) the teruma when he eats it (even though when he actually ate it, it was already tamei). Therefore, this should certainly be true if the teruma was only ta'mei m'drabonon. Meaning, even though the teruma cannot practically be eaten, the tu'mah d'oraysa status of the kohen (even if it comes after the tu'mah d'rabonon of the teruma) should create a technical prohibition to forbid him from eating the teruma and he should be chayev mi'sah.

Sanhedrin 82a - Heter to Kill the Goy

The gemara discusses the din of קנאין פוגעין בו and its parameters. Although the gemara doesn't identify the source of the heter, Rashi in the mishna 81b and the Rambam (Hil. Issurei Biah 12:4) both write that it is a halacha l'moshe m'sinai. The gemara itself hints to this (82a bottom) that Pinchas recalled this as a halacha that Moshe taught him after descending from Har Sinai. However, the halacha l'moshe misinai seems to only be a heter to kill the Jew who violated the chilul Hashem of publicly having relations with the goy. Actually, Pinchas was only allowed to kill Zimri without consulting his Rebbi, Moshe, because it was a situation of chilul hashem (as rashi explains d.h. shmuel - שכל מקום שיש חילול השם אין חולקין כבוד לרב לפיכך הורה בנחס הלבה בפני רבו ולא המתין ליטול רשות ממשה, שלא יראו הרואים וילמדו להתיר את כותית). But, what is the heter to kill kazbi (the non-jewish woman)?

Rav Moshe (Igros Moshe, Even Ha'Ezer 1:38/39) discusses this question. In a teshuva to his eldest son in law, Rav Shisgal, he explains based on the Rambam (Hil. Issurei Biah 12:10) who writes:

אבל ישראל הבא על הכותית וכו' כיון שבא על הכותית בזדון הרי זה נהרגת מפני שבא לישראל תקלה על ידיה כבהמה, ודבר זה מפורש בתורה שנאמר "הן הנה היו לבני ישראל בדבר בלעם וכל אשה יודעת איש למשכב זכר תהרוגו - רמב"ם הל' איסורי ביאה פרק י"ב הל' י

The Rambam holds that just as an animal that was a Nirvah is killed because of the embarrassment of the Ro'veia, so too the adulterous shiktza who caused תקלה to the Jew is also killed. Rav Moshe struggles with why the Rambam has to search for a source for this din using the pasuk of b'nos midyan, and not just cite the pasuk by Pinchas where we know that he killed kazbi along with zimri. Rav Moshe understands that had the Rambam used Pinchas as a source, it would only be a heter to kill her at the time of the act, when there is a heter to kill him, but by citing a pasuk by the daughters of midyan we learn that even afterward they can be killed. Rav Moshe explains that it is possible that the adulterous woman (i..e kazbi) can be killed after the fact, even without a beis din. Rav Moshe explains that the gemara implies that the limitation of the din קנאין פוגעין בו being only at the time of the act and the din that the ka'nai is not allowed to consult with a beis din, are fundamentally connected (ולא עוד אלא שאם וכו). The fundamental connection is that the Torah has some level of compassion on the adulterer, therefore beis din won't give permission to kill him and he can only kill at the time of the act. However, the concept of kana'us would technically extend even after the act. Therefore, the gentile woman, who the Torah doesn't have the same level of compassion on, can be killed even after the act is over (under the heter of קנאין פוגעין בה and would not require a court proceeding).

Rav Moshe's approach to the Rambam leaves one aspect difficult. The language of the Rambam implies that any situation of a Jewish man having relations with a shiktza, she can be killed because of the "taka'la" she is causing him. The Rambam doesn't limit this to a public display where we apply the din of קנאין פוגעין בו, and seems to hold that it would apply to even a private relationship. Rav Moshe who understands that the basis for the heter to kill her is also קנאין פוגעין בה because he holds it can be done even without a beis din, is forced to say that she is only allowed to be killed when done publicly, not privately. Limiting the ability to kill her after the fact to a situation where the aveira was done publicly is against the simple reading of the Rambam? Perhaps we can explain based on the Nimukei Yosef that I mentioned yesterday on this blog, that the din קנאין פוגעין בו when done in public, is indicative of the severity of the aveira even when done in private (יהרג ואל יעבור). Therefore, if we are able to kill her when it is done in public because of the "taka'la" she caused, similar to the animal that is killed, she can even be killed based on this rationale when the aveira was done in private.

Sanhedrin 81b - Jew Having Relations with a Goy

R. Yakov Kaminetzky (Parshas Vayechi) tries to explain the difference between the kana'us of Shimon and Levi. They were both involved in killing out shechem, and were chastised by Yakov. Levi learned how to control their kana'us and use the Torah to moderate when it is appropriate. Shimon on the other hand never controlled his kana'us. In the episode with Zimri, it was the Torah controlled kana'us of Pinchas (shevet levi) who killed the uncontrolled behavior of Zimri who was from Shimon. His point is that the din of הבועל ארמית קנאין פוגעין בו, is exactly that. As Rashi writes, it is a halacha reserved for בני אדם כשרין המתקנאין קנאתו של מקום, not a more hotheaded approach to venting personal anger.

R. Yakov illustrates the idea of an uncontrolled kana'aus that is not within the confines of Torah. The question is sometimes asked, which is worse - to marry a goy or marry a woman who won't keep hilchos nidah? The kana'us of a תלמיד שלא שימש כל צרכו would surely be to respond based on the associated punishment - relations with a nidah is kareis, therefore worse. However, R. Yakov points to the Rambam (Hilchos Issurei Bi'ah 12:7-8) who writes about the severity of even having relations with a goy.

The Rambam writes:

עון זה, אע"פ שאין בו מיתת ב"ד אל יהיה קל בעיניך, אלא יש בו הפסד שאין בכל העריות כמותו, שהבן מן הערוה בנו הוא לכל דבר ובכלל ישראל נחשב אע"פ שהוא ממזר, והבן מן הכותית אינו בנו וכו' ודבר זה גורם להדבק בעכו"ם שהבדילנו הקב"ה מהם ולשוב מאחרי ה' ולמעול בו

The Rambam points to the child born from the illegal relationship as a more accurate litmus test to the severity of the relationship. A child born from adultery is a mamzer, but retains status of a Jew, whereas a child born to a non-jewish woman from a Jewish man doesn't even retain the status of a Jew. Furthermore, marriage out of the faith leads to the deterioration of the very fabric that holds the Jewish people together by causing attachment to the goyim and reject Hashem. Based on this Rambam, Rav Yakov writes that it is obvious that it is better to marry a Jewish woman and violate an issur kareis regularly, than to marry a non-jew.

A very strong proof the severity of the issur to have relations with a goy is the Nimukei Yosef at the end of perek ben sorer u'moreh. In the context of giving up one's life to avoid prohibited sexual relationships, the Nimukei Yosef writes:

מיהו נכרית דאנסה ליה לישראל לבא עליה יהרג ואל יעבור שזו ודאי בכלל עריות חמורות היא, דהא זימנין דחייב מיתה כגון בפרהסיא וכמעשה שהיה דקנאין פוגעין בו, ואם לא פגעו בו קנאין חייב כרת, הלכך אפילו בצנעא דליכא כרת יהרג ואל יעבור מדין אבזרהא דהא אשה זו פעמים שהיא ערוה גמורה וחייב עליה כרת

The Nimukei Yosef says that one would be obligated to sacrifice their life to avoid having relations with a goy. Even in a situation where one isn't able to be killed, such as in private, they must give up their life to avoid the prohibition.

Sanhedrin 76b - The Mitzvah to Kill a Killer

The mishna lists murder among the capital punishments. In actuality they are specifically commanded to kill a murderer.

The Ramban in his additions to Sefer HaMitzvos (mitzvah 13) says that there is a specific mitzvah to not have compassion on one who murdered. The concept of the mitzvah is that Beis Din is obligated to carry out the judgement on the killer, not just as a positive mitzvah, but even as a lo ta'aseh as we find by a michasheifa.

The Brisker Rav (Hilchos Rotzei'ach) is troubled why the Ramban needs to count this as a separate mitzvah, since the Rambam (mitzvah 279) mentions this exact la'v of "lo ta'chos ei'necha a'lav" within the context of a judge not having compassion on one who committed a crime. The Brisker Rav proves from the Rambam in that he understands the nature of the issur very differently than the Ramban. In Hilchos Sanhedrin (14:3) the Rambam writes that a beis din who doesn't kill those who are chayev mi'sah are in violation of an a'seh of "u'bi'arta ha'ra" but not in violation of a lo ta'aseh. It is only by a mechasheif that we find a specific lo ta'aseh that the beis din would be in violation of if they fail to kill him. The pasuk of "lo ta'chos ei'necha" is mentioned by the Rambam in Hilchos Dayanim (20:4) in the context of their sentencing of a murderer. The beis din is not allowed to have compassion and say that a life has already been lost, so what use is there to take another life. Rather, they must overcome their misplaced compassion and sentence the murderer to death.

According to the Rambam the prohibition of "lo ta'chos ei'necha" is in the sentencing stage. That is why the Rambam places the halacha in hilchos dayanim. The violation is not by their refusal to kill him, rather by the compassion that they exhibit in the sentencing. This is also apparent from the Rambam incorporating other penalties under the same heading of this l'av, because the nature of the prohibition is not to have compassion in their sentencing. The Ramban, on the other hand considers this to be a l'av that compliments the a'seh of "u'biarta ha'ra" which applies after he is already sentenced. The Ramban holds that if the beis din fails to carry out the sentence, they are in violation of this l'av. The Ramban adds a separate mitzvah which is not counted by the Rambam, which is not to have compassion in carrying out capital punishment after it is decided.

Sanhedrin 66b - Returning a Lost Object to a Goy

The gemara says that one who returns an aveida to a goy is violating the pasuk of למען ספות הרוה את הצמאה. It may not be a mitzvah of hashavas aveida, but what is the problem with returning an aveida to a goy? Rashi explains that by doing so he is showing that the mitzvah of hashavas aveida is not important to him because it is the will of Hashem, rather because he is doing a good deed and therefore does it even for a goy.

רש"י - ומראה בעצמו שהשבת אבדה אינה חשובה לו מצות בוראו, שאף לכותי הוא עושה כן שלא נצטווה עליהם

Rashi is offering a very insightful lesson which is expounded upon by the maharal in B'er Ha'Gola (page 31 in the standard printing). The Maharal discusses the mitzvah of hashavas aveida, and explainst that according to din torah it only applies until the owner is me'yaesh (gives up hope). Surely, etiquette would dictate that one should return an object to its poor owner who really wants it back even after 12 months have past, yet the din torah is lenient that he need not do that. Sometimes the etiquette is more demanding than din torah, sometimes it is less demanding, but the point is that it is an entirely different system. The Maharal explains that etiquette is based on societal norms that constantly change and evolve, and is not based on absolute truthful logic. Din Torah isn't established based on emotions or proper social behavior, rather it is absolute logic -וכאשר ראוי לפי השכל כך ראוי לעשות. The Torah is too perfect to be distorted by societal norms and is dependent solely on the wisdom of Hashem. The emotional connection that a previous owner has to his money isn't relevant so long as that connection has been severed through yi'ush which deems it no longer belonging to him.

In light of the Maharal, we have a better appreciation of what Rashi is attempting to teach. Mitzvos are above and beyond human emotions. Particularly in the realm of bein adam l'chaveiro type mitzvos, there is a concern that one doesn't associate the actions with the will of Hashem and does them only because they feel right. This slippery slope leads to a distortion of the Torah, and a distortion of what the Torah recognizes as logical absolute truth. The Ramban in parshas ki teitzei (by shi'luach hakan) explains that many of the mitzvos that relate to compassion are misunderstood as G-d trying to show compassion. The Ramban explains that the perspective is wrong. We don't do mitzvos out of compassion, we do mitzvos because it is the will of Hashem. It may be true that adherence to mitzvos will have a positive impact on our nature and teach us to be more compassionate, but the mitzvos of the Torah cannot be reduced to acts of compassion which remain completely subjective to the whims of society. Torah and Mitzvos are far above that as being the firm will of Hashem. This is the point that Rashi is expressing. One cannot do the mitzvah of hashavas aveida to a goy because although it may be a good deed and generally proper, it indicates that he recognizes the mitzvah as nothing more than a good deed. Mitzvos cannot be perceived as good deeds, rather as the מצות בוראו, command of the creator.

Sanhedrin 74b - Kiddush Hashem

The gemara has 2 main categories when a person would have to give up their lives (based on Ran):

1. Three severe aveiros (avoda zara, arayos, murder) - The gemara implies clearly that this applies even in private and even when there is not gezeira of sh'mad. The Ran explains that this even applies when they are doing it for their own pleasure because that distinction only applies to when the requirement of giving up one's life is kiddush hashem, but not when the requirement is the severity of the issur. Even for what is considered אביזרייהו, meaning that they are connected to these three such as pleasure from arayos and avoda zara one must give up their life. The only exception within the realm of these three aveiros is when the aveira is violated passively, קרקע עולם. One is only required to give up their life to avoid an active violation, but not to avoid a passive violation.

2. All other aveiros - One must only give up their life if it is public which means in the presence (or awareness) of 10 Jews, or if it is a time of sh'mad. Even when it is done publicly, and/or a time of sh'mad there are two exemptions. First, if the aveira is violated passively, even if violated publicly at a time of sh'mad one doesn't need to give up their life. Secondly, if their purpose is for their own pleasure not just for the sake of causing a Jew to do an aveira, one doesn't have to give up their life.

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It is important to fully understand the exemption of קרקע עולם. Although the gemara only uses it within the context of permitting a public violation, not to be matir the prohibition of adultery itself, Tosafos and the Ran both understand that it would be matir even the violation of adultery. This essentially means that the rationale of קרקע עולם is not only a "matir" in the realm of kiddush hashem, but even for the big 3 aveiros which are prohibited due to their severity. What is the rationale behind this exemption? Tosafos seems to focus on the aspect of קרקע עולם being שב ואל תעשה, meaning that the prohibition is being violated passively rather than actively and understands that even murder which is violated passively (although Rav Chaim takes issue with the example Tosafos offers), would be subject to this heter. Tosafos seems to understand that when a prohibition is violated passively it is far less severe than one violated actively, and therefore doesn't demand sacrificing one's life for it. The Ran explains this somewhat differently. The Ran considers the exemption of קרקע עולם not to just be a passive violation, but a situation where it wouldn't help to give up your life because they could anyway force you to commit the prohibition. For example, when a woman is threatened to be killed if she doesn't commit adultery, she doesn't need to give up her life since they could decide to rape her regardless of her decision. The difference between the Ran and Tosafos is a hypothetical situation where a woman is being threatened to commit adultery or they will kill her, but for whatever reason they wouldn't be able to rape her against her will. According to Tosafos the exemption of קרקע עולם would apply since the issur will only be violated passively, whereas according to the Ran it will not apply since without her consent they couldn't force her to violate the issur.

I would suggest that this machlokes would be dependent on a machlokes Rashi and Tosafos how exactly to understand the logic of מי יימר דדמא דידך סומק טפי, דילמא דמא דהוא גברא סומק טפי. Tosafos holds that one cannot murder to save their life since they have no reason to assume that their life is more valuable than their friend. In a predicament of my life vs. his life, the Torah demands being passive. It follows that if the murder can theoretically be violated passively, I can commit a passive murder to save my own life. From this Tosafos extrapolates that for any passive violation one need not give up their life. Rashi on the other hand seems to explain the logic somewhat differently. Rashi understands that the exemption of וחי בהם - ולא שימות בהם, which is normally the concept that allows someone to violate an issur to save their life, doesn't apply to a situation where a life is going to be lost one way or the other. Therefore, the heter to violate an issur to save one's life doesn't apply to a situation where one is being threatened to kill. Based on the approach of Rashi, the logic of allowing oneself to be killed is not "be passive", rather the logic is that he has not heter to violate the issur of murder to save his life. It should follow that even if the issur of murder is being violated passively (which may only be theoretical), or even if the issur of adultery is being violated passively, one must still give up their life in order to avoid it. Perhaps the Ran understands like Rashi and therefore has to come up with another logic to explain the exemption of קרקע עולם, such as they could have raped her anyway.

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GOYIM AND KIDDUSH HASHEM

Sanhedrin 73a - How much is necessary to invest to save someone's life?

The gemara learns out from the fact that the mitzva of hashavas aveida would require someone to save someone's life, that the explicit pasuk of לא תעמוד על דם רעך would demand even the spending of money (which would not be required by the mitzvah of hashavas aveida). The Rosh points out that if I indeed spend money to save someone's life, he is obligated to reimburse me, but even if he can't I am obligated to spend the money in order to save him. The Rosh learns this out from the gemara on 74a which says that if the "nirdaf" (one being chased to be killed), breaks the vessels of the "rodef" (chaser) in the process of escaping, he does not have to reimburse the loss of property, but if the nirdaf breaks the vessels of someone else, he must reimburse him. This shows that a bystander isn't obligated to pay for the saving of the nirdaf at his own expense when the nirdaf has money, because if the bystander would be obligated to pay to save the nirdaf, then he doesn't deserve to be reimbursed for the vessels that the nirdaf used to save himself.

How does the gemara know that the pasuk of לא תעמוד על דם רעך demands the spending of money (even if the person wouldn't have the financial ability to reimburse)? Rashi writes that the pasuk of לא תעמוד על דם רעך says, do not stand on yourself and hold yourself back from saving someone, rather - חזור על כל צדדין שלא יאבד דם רעך. The pasuk demands to do everything that is within your power to save someone's life, even if it will cost a lot. Rav Moshe (Igros Moshe Y.D. 1:223) points out that the normal limit of how much one has to spend on a mitzvah doesn't apply here. Rashi holds that the pasuk is specifically addressing how much one has to spend and is demanding that one spend whatever necessary to save someone else's life.

From the fact that Rashi had to darshen the pasuk and interpret it to be specifically addressing the expense, Rav Moshe has an amazing insight. There is a lot of discussion regarding the limitation of 20% that we are required to spend on positive mitzvos. The Rama in Hilchos Sukkah seems to hold that it only applies to positive mitzvos, but regarding negative mitzvos there is no limit to how much one must spend to avoid doing an issur. Rav Moshe proves from Rashi that the primary distinction is not whether it is a positive mitzvah or negative one, rather whether it is violated actively or passively. If the halacha was that for any negative mitzva, even if violated passively, one would have to spend everything then there would be no need for rashi to darshen the pasuk of לא תעמוד על דם רעך to demand spending money. The very fact that he would be in violation of a negative commandment would require the spending of money. From the fact that Rashi finds it necessary to darshen the pasuk to be saying explicitly that money must be spent, the implication is that for this type of lo ta'aseh he wouldn't have to spend more than 20%. Why? It must be that Rashi holds that a lo ta'aseh that is violated passively, similar to most positive commandments, only demands a maximum spending of 20%. It is only because Rashi darshens the pasuk to be explicitly demanding חזור על כל הצדדין שלא יאבד דם רעך, that he would be required to spend more than the 20% maximum.

Sanhedrin 72b - Rodeif Kattan

The gemara says that since a rodeif doesn't require warning, even a rodeif who is a child can be killed. Based on this, a 3 year old child holding a loaded gun aimed at someone with his finger on the trigger, can be killed even though the child isn't aware of what he is doing. The question is whether this idea applies only to a rodeif who is trying to kill, due to the significance of pikuach nefesh, or would it even appy to a'rayos? Meaning, if a child or sho'teh would be trying to rape a woman, would a bystander be able to kill the rodeif to prevent violating the victim?

The Ohr Samei'ach (Rotzeiach 1:13) writes this would be dependent on what the heter is to kill a rodeif after a woman to rape her. According to R. Yehuda 83b who considers a rape victim to be life threatening since she will try to save herself and may lead to him killing her, a bystander can certainly kill the rodeif as he would be able to kill a rodeif who is trying to kill. But, according to the Rabbonon that the Torah heter to kill a rodeif after ara'yos is that the Torah cares about the degradation caused to her, this would only apply to an adult who is a rodeif, not a child (or sho'teh). The Ohr Sameiach does acknowledge that the Rambam in sefer hamitzvos (lo ta'aseh 293) explicitly writes that one may kill a child who is rodeif after ara'yos to rape her. Clearly, the Rambam understands the degradation associated with rape that entitles the bystander to take the life of the rodeif (rapist), would apply even if the rodeif is a child and that is why a bystander may kill him to protect the victim.

Sanhedrin 70a - Ben Sorer U'Moreh: Eating of Mitzvah or Issur

The mishna says that the only type of eating that qualifies him as a ben sorer u'moreh would be an optional eating, to the exclusion of a seudas mitzvah and to the exclusion of eating things that are assur. The gemara 70b clearly says that the source for eating of issur not qualifying is the pasuk which says איננו שומע בקולנו which we darshen to mean - בקולינו ולא בקולו של מקום. Rashi explains that the only type of rebellion that he can become a ben sorer u'moreh on, is when he rebels ONLY against his parents, to the exclusion of one who doesn't even listen to the voice of Hashem.

There are 2 difficulties with this gemara: 1. The source of the gemara works well to explain eating of issur, but what is the source for eating of mitzvah not qualifying him as a ben sorer u'moreh? 2. The gemara includes in eating of issur even the eating on a ta'anis tzibur which is only d'rabonon. How does the torah itself recognize an eating that is only forbidden m'drabonon as not being included in the optional eating to qualify him as a ben sorer u'moreh, since m'doraysa it is an optional eating?

Regarding the second question, the maharatz chiyus writes that according to the Rambam (hil. mamrim 1:2) that there is a mitzvah to listen to the chachamim and one who violates a d'rabonon essentially violates an issur Torah, it is understandable that the Torah can recognize even an issur d'rabonon to qualify as "issur" and not render him a ben sorer u'moreh. It is far more difficult to work this out with the Ramban in sefer hamitzvos who argues on the Rambam and holds that violating d'rabonons is not a d'oraysa violation. According to the Ramban how does the Torah recognize issurei d'rabonon to qualify as issur that wouldn't render him a ben sorer u'moreh? Perhaps the drasha doesn't come to exclude the eating of issur, rather the pasuk comes to exclude any type of rebellion that is provoked or motivated by something other than rebelling against his parents. The eating of an isssur d'rabonon is also not provoked by rebelling against his parents alone, but is also provoked by a will to rebel against the Rabbonon. This is very meduyak in the Rambam (pirush hamishna) - לפי שנאמר "איננו שומע בקולנו" ועד שלא יהיה באותו המעשה שלו אלא המרות אביו ואמרו בלבד ולא המרות התורה. The pasuk isn't just excluding rebelling against the torah, but is excluding any eating that is not JUST a rebellion against his parents such as issurei d'rabonon. This approach would work even for the Ramban who disagrees with the Rambam.

Regarding the first question, the source for mitzvah eating not rendering him a ben sorer u'moreh, the gemara says that we limit the din of ben sorer u'moreh to cases where he is likely to be drawn after it. Any eating of a mitzvah will not be likely to draw him after it to continue stealing to indulge. The rationale seems to be that since the eating for mitzvah purpose is constructive, not for indulgence alone, it will not draw him to become a glutton. However, the Rambam (hilchos mamrim 7:2) groups the mitzvah eating together with the aveirah eating and writes - נאמר "איננו שומע בקלנו" שאינו עובר באכילה זו אלא על קולם, יצא זה שעבר בה על דברי תורה או שאכלה בדבר מצוה

The Radvaz in his commentary points out that the Rambam doesn't take the simple reading fo the gemara that we are only concerned of eating that will instigate more stealing. Rather, the Rambam understands that the very same pasuk which excludes an aveira also excludes a mitzvah. As we were medayek from the Rambam on the mishnah, the pasuk teaches that he only becomes a ben sorer u'moreh when the impetus to eat is for the sake of rebellion against his parents, to the exclusion of one who does an aveira who is also motivated to violate the will of the Torah AND excludes one who eats for a mitzvah where the eating is provoked and motivated by the intention of doing a mitzvah (this would include even a mitzvah d'rabonon).

Sanhedrin 69b - Only a Son, Not a Daughter

The mishna says that only a son can become a בן סורר ומורה. The gemara quotes a braisa that really it should apply to a daughter as well because if she steals as a young girl, she is more likely to resort to prostitution as she grows older to support her expensive taste. But, since the Torah says "ben", we understand it to be to the exclusion of a daughter. The gemara seems to imply that there is no logical reason to limit the situation to a son, but that is the gezeiras ha'kasuv.

However, the Meiri writes that this situation only applies to a son, not a daughter because:

שלא הקפידה תורה אלא על מי שדרכו להמשך אחר תאוותיו ולהשתקע בהן ואין זה בבת אלא בבן

The meiri seems to hold that a son would have more of a tendency to be drawn after his desires, rather than give them up when he has no money, more than a daughter would. He seems to understand the gemara to be saying that the gezeiras hakasuv to limit it to a son is also logical, just that withou the explicit limitation we would have expanded it to a daughter as well.

The maharatz chiyus says that Rav Shimon is the one who is speaking in the braisa because he is the opinion who generally darshens טעמא דקרא and would therefore expand the issur to a girl as well. The difficulty with this approach is that R. Shimon should then darshen the reason and expand it the concept to a daughter even after the Torah explicitly says a son. Why does he limit it? Based on the Meiri we can say that the reason Rav Shimon limits it is because we have another rationale that a boy would be more prone to being drawn after his desires more than a daughter so there is a ta'am to limit just as there is a ta'am to expand, therefore we follow the simple reading of the pasuk.

Sanhedrin 65b - Doing Magic

The gemara says that מעונן refers to אחיזת עינים, meaning it refers to making something look like magic, even though it is just an illusion. Based on this, the Chochmas Adam (89:6) writes that this would include illusions such as turning a rope into a snake, or throwing a ring up and make it look like it is being spit up by someone. He continues to write:

ומזה תראה שאותן הבדחנים שעושין כדברים אלו על החתונות ונקראין טאשין שפילער, עוברים בלאו דאורייתא והמצוה לעשותן עובר משום לפני עור, ולכן מי שבידו למחות צריך למחות וכ"ש שאסור להסתכל ולראותם, אבל אם הוא גוי שעושה נ"ל דמותר לראות

Based on this it would be an issur d'oraysa to hire a Jewish magician, and certainly to be a jewish magician, but one may watch (and maybe even hire) a non-jewish magician. Perhaps the chochmas adam would permit hiring birthday party magicians who don't do any spectacular copperfield style tricks. Rashi writes that the issur is that - ומראה להם כאילו עושה דברים של פלא. It would seem from rashi that if to the average person the trick doesn't seem supernatural, it would not be a violation. See also Igros Moshe (y.d. 4:13:1) where he explains based on the teshuvos ha'rama (he tries to be work out the contradiction in the Rambam whether there is malkus for achizal aynayim by saying that there are 2 types, one through kishuf and one using some other means that is actually doing something), that אחיזת עינים doesn't refer to quick movements that merely give the illusion of tricks as the shach and chochmas adam explain. With this he justifies the minhag of using badchanim at weddings, against the p'sak of the chochams adam.

In general regarding the sorcery prohibitions discussed in the gemara, the Rambam (Hil. oved chochavim 11:16) writes that they are all nonsense and were only used as tool to gather followers - ואין ראוי לישראל שהם חכמים מחוכמים להמשך בהבלים אלו ולא להעלות על לב שיש תועלת בהן וכו' כל המאמין בדברים האלו וכיוצ"ב ומחשב בלבו שהן אמת ודבר חכמה אבל התורה אסרתן, אינן אלא מן הסכים ומחסרי הדעת ובכלל הנשים והקטנים שאין דעתן שלימה, אבל בעלי החמכה ותמימי הדעת ידעו בראיות ברורות שכל אלו הדברים שאסרה תורה אינם דברי חכמה אלא תוהו והבל

The Rambam takes a very strong position that anyone who believes in magic is essentially a fool. But the GR"A (y.d. 179:13) writes that there are many sources in shas, including our gemara where the amoraim ate the calf that they created which confirm the power of this magic. The Rambam denies this only because he was convinced by the philosophers of his time. The gr"a prefers to understand the gemara literally, not allegorically and therefore holds that the Torah forbade this types of magic even though they actually work.

Sanhedrin 63b - Saying Mumbai

My brother raised an issue a few years back, after the terrible murders in the chabad house in mumbai, India. Jews began talking about the city, and he was concerned that this was a violation of ושם אלהים אחרים לא תזכירו based on our gemara that even to refer to the city kalnavo was a problem, if not for the fact that it is an avoda zara mentioned in the Torah and therefore permitted to say. The question was presented to Rav Shternbach, and I had some thoughts of my own. I am posting both emails below.

Dear Aryeh,
Rav Shternbach read through the e-mail. He holds it isn't a problem for us to say because the Gemara is only referring to a case where it is commonly known that the name is for an avodah zara. However, in a case where the common person has no idea what the name is and it is just used to describe a day, month, or place. There in no problem. I told him that I thought you anticipated such a heter and that is why you reiterate more than once that you think it is common knowledge. 1- The information is readily available to anyone that looks into it. 2- The name was changed so recently that people know why it was changed. However, Rav Shterbach feels that only people that look into it will know this. the common person living outside India has no idea what the name is for - as Rav Moshe said "I had no idea until I read the e-mail - Did you? Ask anyone you know and see what they say." He thinks this is the real heter for the months and days of the week.
I asked him what about a person who goes to India and there everyone knows why it was named Mumbai. Is it considered common knowledge there? I didn't get a straight answer and he had to run so I will try to push him on that.
In short - he disagrees with the premise that it is well known. We don't Judge by the actual place but the general common knowledge in the world even if it is information that is easily attainable. I assume this response/svara won't excite you that much and I haven't time to re-read the e-mail to see if there are any proofs against this Sevara. I Will also Bli neder ask him if there is a Proof for this definition of the Halacha.
Let me know if you have any other follow up questions.
Kol tuv,
Tani
--
Rabbi N. Lauer

My Response:
aryeh,
regarding the sevara of r' shternbach - i think it is definitely plausible and would like to build on it. Rather than distinguishing between how many people know it is avoda zara, i think there is an additional distinction. Rashi explains in sanhedrin 63b that the city "kalnabo" was assur to say (if not for the fact that it is mentioned in the torah) because "the city is called after the avoda zara inside of it". Meaning, that it is not speaking of a case where a city is named after an avoda zara, rather it is speaking where the city is ta'fel to the avoda zara. It would be similar to the way we refer to yeshivos - like "lakewood" or "baltimore" [or washington heights :)], just the reverse. the city isn't named after the yeshiva, but in the reference you make the city is ta'fel to the yeshiva. Here too, rashi says that when you refer to the city you are in actuality referring to the avoda zara since the entire city is tafel to the avoda zara. But, in mumbai the city is not tafel to the avoda zara, it was just named after an avoda zara. For example, if they renamed New York and started calling it Jesus, it would still be permitted to refer to the city by its new name.
R' Avi Lebowitz
Jewish Study Network
Palo Alto

When I presented this to Rav Nota Greeblatt he pointed out that rashi is difficult. How did rashi know that kalnavo was called that because of the avoda zara that was inside of it? Rashi most likely didn't know the metzi'us, rather he knew the halacha that it is only assur when the reference is to the avoda zara that is IN the city, so that the entire city becomes subordinate to that avoda zara. Rashi holds that if a city was simply named the name of an avoda zara to show kavod to an avoda zara that exists somewhere else, it would not be assur to refer to the city by that name. That is how rashi knows that kalnavo must have contained an actual idol inside it, to which the entire city was referred to.

Sanhedrin 62b - Mis'aseik by Chalavim and Arayos

The gemara makes a contrast between one who is מתעסק in חלבים ועריות and one who is מתעסק in hilchos shabbos. Regarding חלבים ועריות the rule is that even a mis'aseik is chayev because he is receiving hana'ah. The principal is that although one who is misa'seik is generally exempt and not regarded as doing an issur, somehow the pleasure that they receive from the action allows us to attribute the action to them and make them liable. The gemara contrasts this to hilchos shabbos where mis'aseik is exempt because מלאכת מחשבת אסרה תורה. Tosafos raises a fundamental question, why does the gemara cite the special rule of shabbos of mi'leches mach'sheves which indicates that intent plays a more significant role in hilchos shabbos, rather than simply say that in all other issurei torah (except for when one receives hana'ah), mis'aseik is patur? Tosafos offers 2 approaches. Their second approach is that there are 2 types of mis'aseik, one which is exempt from the standard pasuk of mis'aseik but is considered mileches machsheves because he accomplished his goal (i.e. trying to pick up a vegetable thinking it was detached and then realizing that it was attached). The other which is exempt based on mileches ma'chsheves such as when one tries to pick one vegetable and ends up picking another. However, in Tosafos first approach they offer a very interesting answer:

והכי קאמר, בשבת פטור אף על פי שנהנה משום מלאכת מחשבת

Tosafos is saying that the standard exemption of mis'aseik doesn't apply to a case where one benefits, as we see by חלבים ועריות where one is chayev even as a mis'aseik because of the benefit they receive. Therefore, when one violates shabbos as a mis'aseik but receives a hana'ah in the process, they should be chayev if not for the fact that the Torah has a special requirement of mileches machsheves.

This approach of Tosafos only makes sense if we assume that the concept of שכן נהנה would apply to hilchos shabbos and be mechayev one who is mis'aseik. However, it seems that the concept of hana'ah being mechayev even one who is mis'aseik doesn't apply to hilchos shabbos. The gemara picks 2 examples of where שכן נהנה applies, both eating cheilev (animal fats) and arayos (forbidden relations) because the nature of the prohibition is an issur of receiving a forbidden benefit. Within the realm of issurei achila, the rambam considers the general concept of issur achila to be an issur hana'ah (sefer hamitzvos #187 to explain why achila and hana'ah of meat and milk aren't counted separately), just that the Torah only assurs a very specific type of hana'ah, eating. Similarly, arayos is in essence an issur of receiving pleasure from a relationship with someone off limits. It is by these types of issurim where we say that the hana'ah can make up for the lack of awareness and be me'chayev one who is misa'seik. But, in hilchos shabbos where the nature of the prohibition is an act of melacha, rather than an issur of hana'ah, why does Tosafos assume that the pleasure he receives would make up for a lack of awareness to be mechayev one who is mis'aseik?

Furthermore, R. Akiva Eiger (teshuvos) assumes that the concept of שכן נהנה would apply to wearing sha'atnez and be me'chayev one who is mis'aseik in the wearing of sha'atnez (doesn't know it is ke'laim). The Imrei Bina (Dinei Shabbos end of siman 7) asks on R. Akiva Eiger:

ולא זכיתי להבין דבריו, הא כיון דשמואל נקט רק חלבים ועריות משמע דדוקא באלו דהוי אכילת איסור דנכנס תוך הגוף ועריות שפועל כל הגוף, בזה חייב שכן נהנה ולא בשאר הנאות

The Imrei Bina assumes that it is only a certain type of hana'ah, one that affects the entire body, would qualify as שכן נהנה to be mechayev a mis'aseik. His source for this limitation is the choice of חלבים ועריות as examples. He further proves this from the Rambam in hilchos shegagos (2:7) who writes the the שכן נהנה concept applies to arayos and forbidden foods, clearly indicating that it doesn't apply to other pleasures such as one who is mis'aseik in smearing themselves with שמן המשחה, since the benefit is minor they would be exempt.

To me it seems that the Rambam is not coming to the exclusion of more minor benefits, but rather to the exclusion of cases where the nature of the issur is an issur ma'aseh, not "pleasure". The Rambam holds that only in regard to arayos, ma'achalos asuros and things similar where the nature of the issur is to prohibit pleasure or benefit, are we mechayev a mis'aseik שכן נהנה. But when the nature of the issur is not benefit, rather an issur to do something, such as melacha on shabbos, even one who receives pleasure would be exempt as a mis'aseik. This will answer his question on R. Akiva Eiger. Sha'atnez is an issur hana'ah. It is not a typical issur hana'ah because only certain types of hana'ah are assur, but it is an issur hana'ah to be warmed by the garment, therefore one who receives this hana'ah would be chayev even when they are mis'aseik.