Friday, August 29, 2014

Moed Kattan 20a - Regel Removing Shiva

The Mishna 19a says that if one buries a relative 3 days or more prior to yom tov, yom tov removes the shiva. The mishna implies that it must be a full 3 days, as rashi explains because the first 3 days are the most intense days of aveilus (although rashi offers another approach that the 3 days are lav davka, R. Akiva Eiger points out that it doesn't fit with the gemara that assumes the 3 days of the mishna are davka). Furthermore, the mishna implies that by simply burying the deceased the shiva begins and allows regel to push it off. The mishna makes no mention of having to keep laws of aveilus prior to yom tov to enable yom tov to remove the shiva.
However, the braisa cited in the gemara 20a seems to disagree with the mishna on two points. Firstly, the braisa does not require 3 days, rather any amount of time is sufficient to consider aveilus, and the gemara confirms that is how we pasken. Secondly, the braisa gives an example of doing כפיית המטה, overturning the bed (and sitting on the overturned bed - Rashi 21a) as the case where the regel is mevtel the shiva, but it implies that if one did not do anything to demonstrate aveilus prior to regel, it would be tantamount to burying on the regel where regel is not mevatel shiva. The Rosh (siman 25) citing the Ra'avad points this out, that regel is only mevatel aveilus if one kept the aveilus prior to the regel (The Ra'avad offers a rationale of שלא יהא חוטא נשכר, implying that one should not gain by having aveilus removed if they violated the rules by not keeping it immediately. Perhaps based on this reason, if they didn't keep aveilus prior to the regel to do an o'nes then the regel would remove it. The Ra'avad writes that if one didn't keep aveilus שוגג או מזיד the regel wouldn't remove the shiva. Its unclear if he would include not keeping aveilus due to o'nes).
The Shulchan Aruch in both O.C. and Y.D. paskens like this Ra'avad that even a moment of aveilus is sufficient, but one needs to be no'heig aveilus prior to the regel. It is unclear what it means to do a קיום אבילות קודם הרגל (Ra'avad). The example in the braisa is kefiyas hamitah, which is a clear demonstration of overturning the bed. It would seem logical that עטיפת הראש would also be sufficient, because that is also a clear act demonstrating aveilus. But, it is unclear whether issurei aveilus would qualify since they are all done בשב ואל תעשה. Since Tosafos 21a d.h. eilu, writes that nowadays we don't do כפיית המטה or עטיפת הראש, it is vital to determine what else would qualify. Perhaps the Mishna that holds that it needs to be three days would include even the issurim of aveilus because over the course of 3 days it would be clear that he is abstaining from bathing and learning and shaving, but this would not be enough for one who buries their relative an hour before the regel begins. Rashi 19b gives כפיית המטה and נעילת הסנדל as examples of aveilus not applying during yom tov. He seems to assume that removing one's shoes is also a public display of aveilus and therefore inappropriate for yom tov, therefore it would seem logical that if one removed their shoes before yom tov, it would qualify as being meka'yeim aveilus (which is explicit in the Mishna Berura).
There is a strong support that abstaining from נעילת הסנדל although just an issur, is considered to be like a קום ועשה of keeping aveilus and a real demonstration of aveilus to qualify as keeping aveilus prior to Yom Tov so that the regel can remove the aveilus. In th story with R. Chiya 20b when he heard a שמועה רחוקה and needed to keep aveilus for one day, he removed his shoes to demonstrate the aveilus. The Rosh (29) writes - ואם אין לו מנעלו ברגלו, צריך שיכפה מטתו או יתעטף בראשו דבעינן שיעשה מעשה הניכר משום אבילות. It seems from the Rosh that removing one's shoes can qualify as being noheig aveilus is only when they were actually wearing shoes and by actively removing them they are being no'heig aveilus. If one did not have shoes on his feet at the time of the burial, it would not be considered being no'heig aveilus. The Rosh writes explicitly that the act of removing one's shoes being considered and active display of aveilus, only applies to removing shoes. If one were studying Torah or doing melacha and stops for aveilus, it would not qualify as being no'heig aveilus for a שמועה רחוקה. The Rosh writes - ומכל מקום אינו יצא ידי חובתו בהפסק זה עד שיעשה מעשה הניכר לאבילות. Based on this Rosh, when one needs to be mekayem aveilus prior to the regel in order for the regel to be mevatel the shiva, it is essential that they wear leather shoes for the burial and do an act of removing them afterward. If one were already not wearing leather shoes, it is unclear what alternative action can be taken to demonstrate aveilus prior to the regel since we don't do כפיית המטה or  עטיפת הראש. Perhaps sitting down on the floor would be sufficient, but it may not be since it is not a technical halacha of an avel, just a custom that we keep.

Tuesday, August 26, 2014

Moed Kattan 15a - Status of Things Learned from Yechezkel

The gemara learns out many halachos of Aveilus from pesukim in Yechezkel. Yechezkel was told to behave like an avel yet forgo many of the halachos demanded of an avel. We derive from this the types of things that are forbidden for an Avel. For example, Hashem tells Yechezek that he should wear tefillin, wear shoes, and not wrap his head. We learn from here that all these things are forbidden to a regular Avel, just that Yechezkel was supposed to demonstrate that later on the Jews are going to be aveilim yet no one will behave like an avel to mourn for them. The only two things that Yechezkel was told to do in order to behave like an avel was - האנק דום, from which the gemara learns out that he was forbidden in she'eilas shalom and forbidden in talmud torah.
The Rosh (end of Siman 3) writes in the name of Rashi that everything that is learned from Yechezkiel must be d'oraysa because we learn from Yechezkel that we exempt an avel from tefillin (even if it only means one day). How can a pasuk in Yechezkiel override the mitzvah d'oraysa of tefillin, unless we assume that everything learned from Yechezkiel is d'oraysa. The Rosh rejects this and says that perhaps the things that are derive from Yechezkiel are really only d'rabonon, but the Rabbonon have the authority to uproot a d'oraysa so long as it is done בשב ואל תעשה - violated passively.
Tosafos 5a already addresses the issue of whether things learned from Yechzkiel are considered d'oraysa. The gemara learns out tziyun kever, the obligation to mark of graves from pesukim in Yechezkiel, to which the gemara says - מקמי דליתי יחזקאל מאן אמר, אלא גמרא גמירי לה ואתא יחזקאל ואסמכה אקרא. This is also used to explain the source for a mumar being unable to bring a korban - כל ...ערל לב לא יבא אל מקדשי. Tosafos writes that the gemara assumes that anything learned from Yechezkiel has d'oraysa status which compels the question of how it was known prior to Yechezkiel, forcing the gemara to say that it is a halacha l'moshe misinai. On the other hand the gemara in Nida 57a (cited by R. Betzalel Ronsberg) implies that things learned from Yechezkiel are only d'rabonon, and Tosafos in Baba Basra 147a explains that the pesukim in Yechezkiel are only used as an Esmachta. There seems to be a contradiction between Tosafos in MK and Tosafos in BB whether halachos learned from Yechezkiel are assumed to be d'oraysa.
This issue is really a point of debate between the Rambam and Ramban (shoresh sheini of sefer hamitzvos). The Rambam holds that anything introduced by nevi'im after Moshe Rabbeinu is by definition only d'rabonon. The Ramban disagrees and says that there are takanos of Moshe that are only d'rabonon, and there are halachos derived from the nevi'im that are d'oraysa. The Ramban explains that anything written in the nevi'im in the form of a command, to either do or not do, is considered d'oraysa. The approach of the Ramban is that we have a principal (Megillah 2b) - אלה המצות - שאין נביא רשאי לחדש דבר מעתה. A Navi has no write to introduce a new mitvzah, therefore if a Navi seems to be introducing a new mitzvah, that is the greatest proof that it is NOT a NEW mitzvah, rather it was halacha l'moshe mi'sinai until that point. Based on this it makes sense that a kohein who serves in the mikdash pa'ruah rosh will be chayev misah, even though it is only learned from a pasuk in Yechezkiel. We also learn from Yechzekiel that bigdei kehuna need to be linen (Yoma 71b) and that one who is chayuv 2 misos beis din gets the harsher one (sanhedrin 81a). All these halachos are d'oraysa.
Paranthetically, the Ramban understands that אלה המצות sets the limitation of a navi, not only regarding when we are not to believe him, but even regarding the status of the navi himself. The Ramban in Parshas Va'eschanan writes that a Navi who introduces a new mitzvah is not only in violation of אלה המצות, but we learn from there that since he cannot introduce a new mitzvah he will automatically be in violation of bal tosif (like anyone else who adds a new mitzvah). Also, the Ramban in Parshas Re'eh writes that a Navi who attempts to introduce a new mitzvah, would automatically render himself a navi sheker since we are told that he doesn't have that ability, and therefore he would be chayev misah.

Monday, July 21, 2014

Megillah 7a - Kisvei HaKodesh Making Your Hands Tamei

I decided to write a shtikel torah b'zchus refuah sheleima of my dear friends son  who remains in a coma - נתן צבי בן שרה רבקה קשתיה. 
May Hashem grant him a Refuah Sheleima B'soch Sha'ar Cho'lei Yisroel and protect Acheinu B'nei Yisroel in Gaza.

The gemara cites a machlokes regarding Megillas Esther wether or not it making one's hands tamei. The gemara uses this din as a litmus test as to which books where canonized as part of Tanach. The gemara says that specifically for Megillas Ester would depend on whether there is a hint to the writing of it within the Torah itself. The gemara also suggests that Shir Hashirim and Koheles are questionable.
Where does this halacha of kisvei hakodesh being metamei come from and why? Rashi references the sugya in Shabbos 14a. The gemara in Shabbos says there were two independent gezeiros made on kisvei hakodesh. One was that it is metamei Terumah because there was a tendency to store the Terumah next to the Torah in the Aron Kodesh causing mice to nibble at the Torah when they went to eat the Terumah. Therefore, chazal were gozer tu'mah on the Torah that it would be metamei teruma as a way to prevent people from putting the Terumah next to the Torah in the Aron. A second gezeira that was made was that a Torah would be metamei one's hands. The rationale for this the gemara explains has nothing to do with Terumah, rather it is based on the din of R. Pranach - האוחז ס"ת ערום נקבר ערום בלא אותה מצוה. One who holds a bare Sefer Torah is punished that whatever mitzvah they were doing while holding the Torah, they lose reward for that mitzvah. Rashi explains that people's hands were generally dirty (not necessarily tamei) and they would touch the Torah with dirty hands, which is why R. Pranach said that it is assur. To prevent people from touching a Torah with dirty hands, they were gozer tu'mah on kisvei hakodesh. Since one's hands would be come tamei by touching the scroll, they would refrain from touching it.
Tosafos (Shabbos 14a) writes that the din of R. Pranach applies equally to all kisvei hakodesh from the simple fact that chazal were gozer that ALL kisvei hakodesh would make one's hands tamei. Rashi in Megilla implies that as well.
An argument can be made that since the purpose in the gezeira of tu'mah on kisvei hakodesh was to prevent touching it with dirty hands, it would only apply if one would not wash their hands. However, if one would wash their hands they would not be in violation of R. Pranach's concern, and therefore their hands would not become tamei from the Sefer Torah. This approach is the opinion of the Mordechai citing the Ravya. The Mordechai holds that washing one's hands would permit the touching of a sefer torah with bare hands. Tosafos (Shabbos 14b) rejects this approach and assumes that even if one were to wash their hands, their hands would become tamei by touching the Sefer Torah. The Rama 147:1 writes that we are lenient to rely on the Mordechai for other kisvei hakodesh, but not for a sefer torah. However, without washing hands one should not even touch other kisvei hakodesh. The Biur Halacha explains that we are only meikel for other kisvei hakodesh because even Tosafos doesn't seem positively sure that the prohibition to touch the sefer torah "arum" would apply to kisvei hakodesh.
The approach above is based on the pashut peshat of the gemara that the gezeira that kisvei hakodesh is metamei one's hands has absolutely nothing to do with the gezeira of it being metamei terumah. However, the Rambam (Hilchos Sha'ar Avos HaTumah 9:5) connects the gezeira on kisvei hakodesh being meta'mei Terumah, with the gezeira on kisvei hakodesh being metamei one's hands by writing ולא עוד אלא מי שהיו ידיו טהורות. This implies that the reason that the Rambam offers for Terumah which is the mice coming and ruining the seforim, is the source of why they were gozer on kisvei hakodesh being metamei one's hands. In his piruch hamishna to Maseches Yadayim (3:3) the Rambam writes this explicitly and fails to even mention the statememt of R. Pranach as the source. The simplest reconciliation of the Rambam is that without the gezeira that seforim are metamei teruma, chazal would never have created the concept of tu'mah on kisvei hakodesh just to prevent touching seforim with dirty hands. However, once they were gozer that kisvei hakodesh are metamei terumah, they extended the tu'mah to even be metamei one's hands to prevent touching a sefer with dirty hands violation the din of R. Pranach. The weakness in this approach is that the Rambam should have still mentioned R. Pranach, in addition to the Terumah gezeirah, yet he fails to do so. Therefore, to reconcile the Rambam with the gemara, the Nodeh B'Yehuda (Mahadurah Kamma, O.C. 7) writes that R. Pranach only applies to a Sefer Torah, and therefore requires the gezeira on Terumah to extend the tumah to all types of kisvei hakodesh. The reason the gemara cites R. Pranach is because without that there would be no concept of any sefer being metamei one's hands. But, once they were gozer on a sefer Torah because of R. Pranach, they extend it to other seforim based on the gezeirah of Terumah because if there would be a difference between seforim and sefer torah for tu'mah on one's hands, people will think that there is also a difference regarding terumah.
There is a significant difference between the Rambam's approach and the more conventional approach. According to the Rambam since R. Pranach only applies to a sefer torah, it would be permitted to touch other seforim even without washing one's hands, even though if one would touch them, their hands would become tamei (there is no issur in making one's hand tamei). Based on this he also says that according to the Rambam it would be permitted to touch the amudim of a sefer torah, because the fact that they are metamei one's hands is not an indication that there is an issur to touch them (arguing on the Magen Avrohom who holds that since the Rambam holds they are metamei one's hands, it must be assur to touch the amudim of a sefer torah). The Node B'Yehuda also proves from the language of the Rambam in the pirush hamishna that just as for stam yadayim, washing helps, it also helps to avoid the issur of R. Pranach, like the opinion of the Mordechai, against Tosafos. He points out that the Rambam in the Yad seems to have been chozer from this and holds that if one would touch a sefer after washing hands, they would still become tamei. Yet, the Nodeh B'Yehuda explains that the Rambam is only partially chozer to hold that one's hands would become tamei even if he washed them, but there would not be any issur to touch the sefer after washing one's hands because R. Pranach would not apply after washing. Therefore he is matir to touch the amudim of a sefer torah after washing one's hands. In the next teshuva he writes that if one wants to be machmir to hold the amudim with a talis he should do so in an inconcpicous way so that it is not כרמות רוחא. He also comments that one can rely on the washing in the morning to waive the issur of R. Pranach to permit touching the eitz chaim of the sefer torah.


Wednesday, June 18, 2014

Taanis 11a - One Who Fasts is Called a Sinner

Shmuel says that anyone who fasts is called a sinner for abstaining from the worldly pleasures that he is entitled to. The gemara draws a parallel between the statement of Shmuel regarding fasting and the statement of R. Elazar HaKafar who says that a Nazir is called a sinner for abstaining from wine. R. Elazar disagrees with R. Elazar Hakafar and holds that a Nazir is called a kadosh. The gemara assumes that just as R. Elazar says that a Nazir is a kadosh, one who fasts should also be a kadosh, and therefore asks from a statement of R. Elazar himself which implies that it is forbidden to fast. The gemra concludes that as long is someone is able to withstand the fast they are called a kadosh, as is the Nazir, but if one cannot withstand it and accepts it, it is improper (persumably because they are putting themself in a situation where they are likely not to complete the fast).
Tosafos asks that the gemara in Baba Kama implies that according to Shmuel one who fasts is not called a sinner, so how does Shmuel himself consider him a sinner? Tosafos answers that based on the kal v'chomer from Nazir who R. Elazar Hakafar considers a sinner, there is no question that one who fasts is certainly a sinner. But, Shmuel admits that the mitzvah which is accomplished through the fasting overwhelms the aveira aspect of it. Tosafos compares this with one who fasts a Ta'anis for a dream on Shabbos where the benefit offsets the loss, but there is still an aspect of aveira for which the need to do teshuva - ליתיב תענית לתעניתיה. The Gevuros Ari asks that he doesn't understand the category of an action having an aspect of Mitzvah and an aspect of Aveirah at the same time. Just as when we have an aseh pushing off a lo ta'aseh, we don't consider it to be an aveira at all because the Torah wants the mitzvah to be done at the expense of the aveira; similarly here we should consider it a pure mitzvah since the mitzvah will fully compensate for offsetting the aveira?
Before we answer the question of the Gevuros Ari, we need to understand whether Tosafos applies only to Ta'anis or even to a Nazir. When R. Elazar HaKafar says that a Nazir is a sinner, will the mitzvah aspect of being a Nazir be mixed with aveirah so that there is both? From Tosafos it seems that we only consider Ta'anis to be this hybrid of mitzvah and aveirah, but Nazir is a pure aveirah. Perhaps Tosafos is assuming like the Rashash explains that R. Elazar HaKafar is only addressing a Nazir Tamei (which is the pasuk that he quotes). For the days that preceeded his tu'mah there is an aveirah without any mitzvah because those days didn't ultimately count toward nezirus. However, for a Nazir Tahor perhaps we would consider the mitzvah to completley outweigh and over compensate for the aveira so that it is not considered an aveira at all. According to this approach, by Nazir there is no middle category of partial mitzvah, partial aveirah, where the mitzvah is bigger than the aveirah. By a Nazir Tamei it is considered a pure aveira and by a Nazir Tahor it is considered a pure mitzvah (similar to aseh docheh lo ta'aseh as the gevuros ari is suggesting). However, the Maharsha (agados) points out that Tosafos in Baba Kama seems to hold that even a Nazir Tamei according to R. Elazar HaKafar would be in this middle category where there is a hybrid of mitzvah and aveirah, just that the mitzvah is greater.
Lets return to the question of the Gevuros Ari regarding the hybrid category, and not considering the mitzvah to over compensate to the aveira to the point where the aveira virtually doesn't exist. It is true that by aseh docheh lo ta'aseh we consider the mitzvah to overcompensate for the aveira to the point where we do not consider there to be any aspect of aveira at all. However, this is only because we have a gezeiras hakasuv that we learn from Tzitzis teaching us עשה דוחה לא תעשה. To me it seems that it is more comparable to a case where we allow a greater aseh to take precendence over a lesser aseh. For example, the gemara says in Pesachim that the mitzvah of Pesach for which there is kareis overrides the mitzvah of making the Tamid shel bein ha'arbayim the last korban of the day. Perhaps in that case the lesser aseh is still considered violated and one would indeed require some amount of teshuva for that.

Tuesday, June 17, 2014

Taanis 7a - Learning From a Talmid Chacham Who Acts Improperly

The gemara learns from the pasuk of כי ממנו תאכל ואותו לא תכרות that if one has a Rebbi who is a proper Talmid Chacham and acts in a manner that befits a person of his stature, one should learn from him and not separate. Tosafos explains that there is no need to seek out another Rebbi (I am reminded of a story that Rav Nota Greenblatt Shlit"a once shared. He was learning by Rav Moshe and the Mashgiach in Tiferes Yerushalayim was pushing him to leave MTJ to go learn in Lakewood by Rav Aharon, which was what everyone serious in their learning would do. He explained that at the time Rav Moshe was recognized as a posek but Rav Aharon was THE Rosh Yeshiva. He turned back to the mashgiach and said - ווו איז עס געשריבן אַז הרב אהרן איז גרעסער ווי הרב משה - where is it written that Rav Aharon is greater than Rav Moshe? To which Rav Nota commented "he looked at me as if I just told him I was a nekeiva"). But if the Rebbi doesn't act properly, he should seek out a new Rebbi and not learn from this one.
Tosafos asks from Rav Meir who would go learn from Acher and answers that a Talmid Chacham may learn from an improper Rebbi, but if one is not a Talmid Chacham they may not. It is strange that Tosafos even asks the question because it is directly dealt with by the gemara in Chagiga 15a and the gemara says a Gadol may learn from an improper Rebbi, but a Kattan may not (The Gevuros Ari understands that the distinction of the gemara is between one who is over 13 and one who is under 13, which is clearly not the approach of Tosafos. Perhaps Rashi in Chagiga - גדול היודע ליזהר ממעשיו implies like the gevuros ari). It seems from the gemara and Tosafos that so long as the Talmid is a talmid chacham who is able to discern what to learn from and what not to learn from, he may continue to study from the Rebbi who is behaving improperly.
However, the Rambam and Shulchan Aruch Y.D. 246:8 writes - הרב שאינו הולך בדרך טובה אע"פ שחכם גדול הוא וכל העם צריכים לו, אין למדין ממנו עד שיחזור למוטב. The Shach asks why the Shulchan Aruch doesn't make the distinction of the gemara itself and say that a Talmid Chacham is permitted to learn from an improper Rebbi? The Shach answers we find that even some of the Talmidim found in the gemara had status of a "kattan" and were not allowed to learn from improper Rebbeim, therefore nowadays the Rambam and Shulchan Aruch are assuming that everyone would have the status of a kattan and not be allowed to learn from someone who isn't acting properly. The Gilyon Marsha adds that even a proper custom that is instituted by such a person should not be followed.
I heard recently that some poskim told the talmidim of a Talmid Chacham who committed a serious aveirah that they should disregard anything that they ever heard from him because he is not a בעל מסורה. I find this approach very difficult to accept. The only discussion we ever find in the poskim is whether one can continue to learn by this person after he had committed an aveira and goes in improper ways, however, anything that he said prior to that can be quoted. Elisha Ben Avuya is quoted in Avos 4:20 for something that he said before he went off the derech and by being quoted in Avos indicates that he was very much part of the chachmei ha'mesorah. He is also quoted in Moed Kattan 20a regarding keeping aveilus on a shemuah rechokah. Clearly, the earlier teachings of such a person cannot be disregarded. It is difficult to make a distinction between Elisha Ben Avuya where we can attribute an exact time to when he changed his ways, to another Talmid Chacham. Furthermore, the Shulchan Aruch says explicitly - עד שיחזור למוטב, meaning that once he does teshuva, one can continue to learn from him. Rabbeinu Yona in avos requires being דן לכף זכות and assuming that a Talmid Chacham who sinned would have done teshuva for his aveiros.

Monday, June 09, 2014

Rosh Hashana 33a - Women for Time Bound Mitzvos

The gemara says that the machlokes whether women are allowed to blow shofar on RH is contingent on the machlokes whether they are permitted to do semicha on a korban. The gemara is not clear what the issue would be. Rashi understands that it is a general issue of bal tosif for women to do mitzvos that they are not obligated in, whereas the Ran in Kiddushin discusses it as more specific to these mitzvos (semicha is an issue of avoda b'kodshim, and shofar is an issur d'rabonon as Tosafos writes on 29b).
The gemara presents the opinion of R. Yossi (which Tosafos holds we pasken like) to say that it is a "reshus", which implies that there is nothing wrong with them doing it, but perhaps there is no advantage either. Tosafos then develops that according to R. Yossi it isn't merely a d'var ha'reshus, but it is considered a mitzvah and enough of a mitzvah for them to even make a bracha on it. Tosafos elaborates with ra'ayos to prove that women can even make a bracha on these mitzvos.
R. Akiva Eiger in the Gilyon HaShas cites the Hagahos Ashri at the end of the third perek of Succah who disagrees. The gemara/rashi in Succah implies that a lulav and esrog is not muktzah for a woman to move because since it is needed by a man, it has the status of a keli. The Hagahos Ashri deduces from this that women would not be able to make a bracha on the lulav and esrog, otherwise the gemara should have said that it isn't muktzah for them simply because they fulfill a mitzvah with it. Although the focus of the Hagahos Ashri is to argue on Rabbeinu Tam who permits a bracha to be made, it seems clear from the proof that he cites that there isn't any aspect of mitzvah that is achieved when a woman takes lulav and esrog. If there would be any aspect of a mitzvah performed in their taking lulav and esrog, it would certainly not be muktzah even if there were not men in the world who would be obligated. Therefore, it seems that the Hagahos Ashri is two steps removed from Rabbeinu Tam, by rejecting the right to make a bracha, and the considering it to be a mitzvah.
The Rambam (Hil. Tzitzis 3:9) writes that women are exempt from tzitizs but...
נשים ועבדים שרצו להתעטף בציצית מתעטפים בלא ברכה, וכן שאר מצות עשה שהנשים פטורות מהן, אם רצו לעשות אותן בלא ברכה אין ממחין בידו
The Rambam seems to hold like the Hagahos Ashri. But, why would women and avadim "want" to do these mitzvos? Is it just a mishe'gas with no value!? It seems that the Rambam would hold that there is a mitzvah for women to perform these mitzvos, and they receive reward like an אינו מצווה ועושה, but are not allowed to make a bracha. This is how the M.B. in Hilchos Shofar (589:6) explains the position of the mechaber who says that women are patur but are allowed to blow shofar on Rosh Hashana. Even though it is considered a bit of an issur to sound the shofar, they are allowed to do it since it is considered a mitzvah for them for which they receive reward. Its well known that the Rama rules in Hilchos Tzitzis, Tefillin, Shofar and Succah like Rabbeinu Tam, but even the mechaber who rules like the Rambam would seem to consider it a mitzvah, unlike the Hagahos Ashri.

Thursday, May 29, 2014

Rosh Hashana 24b - Amirah L'nachri for Other Issurim

The gemara says that there is an issur to make pictures of the moon and sun do Rabban Gamliel could not have done it himself, rather he had a goy do it for him. Tosafos assumes that he commissioned a goy to make it for him, and therefore asks that by telling a goy to make it, it should be a violation of amirah l'nachri. The Ritva says that perhaps he simply purchased it from a goy, rather than have a goy draw it for him. The reason Tosafos assumes that he actually commissioned a goy is because he needed very particular pictures to show the eidim and it would be hard to imagine that he found exactly what he needed sitting in a store.
Tosafos answers that although there is an issur of amira l'nochri to have a goy do an issur for a jew, even something that is not shabbos related, for the sake of the mitzvah it is mutar. The difficulty with Tosafos answer is that Tosafos in Gittin 8b rejects the approach of the Ba'al Ha'itur (cited in the Rama O.C. 276) who permits a shevus of amirah l'nochri for the sake of a mitzvah without any additional shevus. How is it that Tosafos assumes here that we would permit amirah l'nachri on an issur Torah for the sake of a mitzvah? The Ritva implies within the approach of Tosafos that it is only for an issur such as this, the issur to create a form of the sun and moon, that we would permit it. The Ritva most likely does not mean that the issur of making the form of the sun and moon is in some way inferior to other issurim. Rather, he means like the Rashash who says that we only require a shevus d'shevus b'makom mitzvah to permit a more severe issur such as chilul shabbos, but for a regular la'av we would permit one shevus of amira l'nachri b'makom mitzvah. Based on the Rashash it should come out that for Yom Tov which is just a la'av, there is no misah or kareis, we should permit even one shevus for the sake of a mitzvah (meaning that Tosafos would agree that one can rely on the ba'al ha'itur).