Wednesday, April 09, 2014

Beitza 12a - Mi'toch She'hutra

The gemara concludes that the machlokes between Beis Shamai and Beis Hillel as to whether on is allowed to carry out a child, lulav ans sefer torah to reshus harabim is dependent upon whether we say mi'toch - מתוך שהותרה לצורך הותרה נמי שלא לצורך - since it is permitted for pikuach nefesh, it is also permitted for non-pikuach nefesh purposes.
Rashi explains that when we apply mi'toch, we completely permit the melacha to be done regardless of the intent or purpose that it is being done for. However, the Rabbonon were go'zer to prohibit things that are not necessary for yom tov. Therefore, carrying out stones on yom tov for no purpose to the reshus harabim would be an issur d'rabonon, and they were even gozer that stones should be muktzah to prevent someone from carrying them out. It would seem clear that according to Rashi, even a minimal need would qualify as a "tzorech" to be matir the issur d'rabonon. Therefore, the case of carrying out a child would even include carrying out a child for leisure purposes. However, Tosafos strongly disagrees with Rashi. Their main source is that when one cooks from Y.T. for chol, if not for ho'il the implication is that it would be an issur d'oraysa. Why don't we use mitoch to reduce it from being an issur d'oraysa to just an issur d'rabonon, even without ho'il? Tosafos holds that mitoch only applies on a d'oraysa level when it is a tzorech ha'yom. When the melacha is done for a purpose that is not a tzorech ha'yom, we cannot even apply mitoch on a Torah level, therefore it would be a Torah violation of the melacha. When we say מתוך שהותרה לצורך, הותרה נמי שלא לצורך, that just means that it doesn't need to be a tzorech of ochel nefesh, but id does need to be a tzorech hayom. Since according to Tosafos we require it to be a tzorech hayom to remove the issur d'oraysa, Tosafos would require that it be a significant need. Therefore, Tosafos makes teh case of carrying out a child to be for the purpose of bris milah. Since it is for the purpose of a mitzvah, it is considered tzorech hayom. Tosafos would hold that leisure purposes would not suffice to remove the issur d'oraysa. Tosafos concludes by quoting a more lenient opinion that considers even a leisurely stroll to be tzorech hayom and sufficient grounds to apply mitoch.
The continuation of the gemara seems to more easily conform to Rashi's approach. The gemara assumes that when one cooks gid hanashe on yom tov we can also apply mitoch to remove the violation for cooking on Yom Tov. According to Rashi, this is very understandable because we say mitoch even on things which are not at all a tzorech hayom, and would therefore apply to even non-kosher food. Tosafos on the other hand struggles with why the gemara applies mitoch to a case where the food is not technically kosher. Tosafos says that although he is not allowed to eat it, he nonetheless intends to eat it, therefore we can apply mitoch. The difficulty with this approach is that if we consider his interest in eating it to consider it a tzorech hayom, it should not only be considered a tzorech hayom, it should be considered אוכל נפש literally, and therefore permitted without mitoch, and even permitted according to Beis Shamai. We are forced to say that Tosafos holds that non-kosher food can never be considered ochel nefesh, but if he intends to violate the issur it would be considered a tzorech  hayom that through mitoch would remove the issur d'oraysa for cooking on yom tov.

Saturday, April 05, 2014

Beitza 7b - The Torah Making A Gezeira To Protect Another Issur

The gemara says that the machlokes between Beis Shamai and Beis Hillel regarding the shiur for chometz whether it is a koseves or kezayis, is only for the issur of בל יראה ובל ימצא but for the issur of achila all agree that the shiur is kezayis. Yet, when explaining the opinion of Beis Hillel the gemara says that the Torah needs to write both chometz and se'or. Had the Torah only wrote that chometz is assur, one would have said that only chometz is assur since it is eatable but se'or which is not eatable is mutar, therefore the Torah also had to write se'or. This doesn't seem to make sense. Why does it matter that chometz is eatable and se'ora is uneatable, since the discussion is not about the issur to eat chometz, rather about the issur of בל יראה ובל ימצא? Why would the fact that chometz is eatable be a factor in explaining why there should be בל יראה ובל ימצא?
Usually the role of the Rabbonon is to make a gezeira on something which is assur m'doraysa, but there are a few places where the Torah itself makes a gezeira to prevent a more severe Torah violation. An example of this is the issur yichud which is d'oraysa as the gemara says in kiddushin and avoda zara, yet it is clearly to prevent relations with arayos. The Ran suggests at the beginning of Pesachim that the issur of בל יראה ובל ימצא is also the same type of issur. It is a "gezeira" d'oraysa, to prevent the eating of chometz. The Ran explains that the reason that the Rabbonon were so machmir regarding the issur of chometz to demand both bi'ur and bittul is because they realized that if the Torah was so machmir to prevent the eating of chometz (by demanding that it be destroyed) they should also make gezeiros to prevent it. Rav Yosef Engel in one of his seforim has a list of issurei torah that he considers to be of this genre. Based on this approach it is not understandable why the gemara considers the issur of בל יראה ובל ימצא to be more likely to apply to chometz which is eatable rather than to se'or which is not eatable.

Thursday, April 03, 2014

Beitza 4b - Ein Mevatlin Issur L'chatchila

The gemara says that the issur of being mevatel issur lichatchila only applies to an issur that is d'oraysa, not to an issur that is d'rabonon. Tosafos points out that the sugya of litra ketzios seems to assume that even for teruma on figs which is only d'rabonon there is an issur to be mevatel lichatchila? Tosafos answers that an issur that has an ikar in the Torah sucah as teruma, which is d'oraysa for דגן תירוש ויצהר, is like a d'oraysa in that one cannot be mevatel lichatchila. But muktzah which is a type of issur d'rabonon that has no source in the Torah, one can be mevatel lichatchila. The Rosh has an entirely different approach to answer this question. Just as the gemara does away with דבר שיש לו מתירין due to the fact that the issur has been burned and not intact, that is why when it is only an issur d'rabonon AND מיקלא קלי איסורא it is not a problem to be mevatel it lichatchila. It comes out that the Rosh would seem to hold that even if it is עיקרו מן התורה, so long as it is not intact, one can be mevatel it lichatchila, whereas Tosafos will hold that even when intact one can be mevatel lichatchila so long as it doesn't have an ikar in the Torah.
Within the approach of Tosafos, it is unclear what the rationale is behind the distinction of יש לו עיקר מן התורה or not. The simpler approach is that something which has a source in the Torah is a more chamur issur because the Rabbonon are just extending an issur that is recognized by the Torah, whereas an issur that is a creation of the chachamim is not as severe and therefore one is allowed to be mevatel it lichatchila. The problem with this approach is that the gemara on 3b that discusses an egg which is ספק נולד ביום טוב and is assur like a ודאי, the gemara says that according to Rabba it is an issur d'oraysa and therefore ספק דאורייתא לחומרא, but according to Rav Yosef and Rav Yitzchok who hold that it is only d'rabonon it should be permitted based on safeik d'rabonon l'kula. The gemara never mentions Rav Nachman who holds that the problem is muktzah. Why not? The simple answer is that the gemara rejected his opinion, but the Tosafos Yeshanim (printed on the margin) says that the reason the gemara doesn't address Rav Nachman is because muktzah is very chamur and כעין דאורייתא, so that muktzah is like hachana d'rabba where we say ספק דאורייתא לחומרא. Is it possible to fit Tosafos with the Tosafos Yeshanim? Tosafos considers muktzah to be something that has no ikar min hatorah, yet Tosafos Yeshanim considers it כעין דאורייתא. It seems clear that if Tosafos means that something which is ikar min hatorah is more chamur, and muktzah is more kal, it is very difficult to justify how we can say ספק לחומרא by the issur of muktzah.
Another approach to explain Tosafos distinction between עיקר מן התורה and אין עיקר מן התורה is that it has nothing to do with the severity of the issur. There can be issurim that are not ikar min hatorah yet they are more chamur (such as muktzah like the tosafos yeshanim says). The Shiltei Giborim says that something which has an ikar in the torah one cannot be mevatel because it is easily confused with a d'oraysa and one will come to be mevatel an issur d'oraysa lichatchila. But something which has no ikar in the Torah such as muktzah, even if it is technically very chamur, it is not quite a d'oraysa and not easily confused with a d'oraysa so one can be mevatel it lichatchila. According to this approach it is possible that Tosafos can fit with the tosafos yeshanim.

Wednesday, April 02, 2014

Beitza 3b - Davar Sheyesh Lo Matirin

This BLOG began last daf yomi cycle in October 2006 with Beitzah. Rather than reposting what I had written then, I will post the link and try to build on it.
http://hearos.blogspot.com/2006/10/beitza-3b-davar-sheyesh-lo-matirin.html
Based on what I wrote above, the logic of Rashi should be limited to food which can only be eaten once, but would not include hana'ah which can happen multiple times (tzlach), and the logic of the Ran should be limited to ta'aroves and not apply to a safeik (which the tzlach also say). Therefore, something which is an issur hana'ah that can be used multiple times, and is a safeik rather than a ta'aroves, should not be considered a davar sheyesh lo matirin according to Rashi or the Ran (assuming the tzlach's sevara is correct).
The Tzlach also writes that if we are forbidding an egg that is layed on yom tov and gets mixed with others based on davar sheyesh lo matirin, it should only be assur to eat, but should be mutar to move because tiltul is like hana'ah. However, according to Rav Yehuda who holds of muktzah (to the exclusion of Rav Shimon), since they are forbidden to eat, all the eggs become muktzah and cannot be moved either.
In my shiur this morning I was asked, what if the food will spoil by the end of shabbos or yom tov, would we still consider it a דבר שיש לו מתירין? It would seem clear that the sevara of Rashi doesn't apply, but the sevara of the Ran would still apply. 
Returning to the approach of the tzlach, I think that there is a serious difficulty based on the gemara 4b. The gemara asks about a branch which falls into an oven and one is then mevatel using heter wood, that it should not be batul since it is a davar sheyesh lo matirin. The gemara answers that since the issur is destroyed and not intact, there is no issue of davar sheyesh lo matirin. The difficulty is that even without the answer of the gemara, it should not be a davar sheyesh lo matirin. We are speaking about wood which is used for cooking. Certainly that wood can be used multiple times and the cooking after yom tov in no way precludes the ability to cook on yom tov as well. So, why does the gemara consider it to be a davar sheyesh lo matirin, since it can be used multiple times, it should be considered ein lo matirin. This seems to be a pretty strong question against the Tzlach!

Tuesday, March 25, 2014

Succah 53b - Kal V'Chomer of Achitofel

The gemara tells a story where Dovid HaMelech was digging the שיתין for the beis hamikdash that bring the water down to the depths and was unsure whether he can erase Hashem's name to prevent the waters from flooding the world. Achitofel taught Dovid that a Kal V'chomer can be made from a Sotah, if to bring peace between a husband and wife the name of Hashem can be erased, then certainly to prevent the water from flooding the world it can be erased.
There seems to be a major question on this gemara. Why do we need a kal v'chomer from Sotah, it should be a simple halacha that pikuach nefesh pushes off all issurim in the Torah? It is fair to assume that flooding the entire world would be an issue of pikuach nefesh, so it should have been obvious to Dovid that the name of Hashem can be erased to preven that?
I recall seeing in the sefer of Rav Peretz Steinberg on the Rambam that the issur of erasing the name of Hashem is connected to avoda zara because the torah commands us to destroy avoda zara and then says לא תעשון כן לה' אלקיכם. Since it is connected to avoda zara, there would be no heter of pikuach nefesh. That is why Achitofel had to darshan a special limud from Sotah to permit it.
I would suggest a different answer. Surely pikuach nefesh would permit the name of Hashem to be erased. The problem was that Dovid held like the opinions in Yoma 85b that only definite pikuach nefesh pushes off issurim, but safeik pikuach nefesh does not (which the gemara considers to be the advantage of וחי בהם because only that source would teach that even safeik pikuach nefesh is docheh issurim). Dovid knew that it wasn't clear whether erasing the name of Hashem by throwing the piece of clay into the water would be an effective method of stopping the flood. It was only a safeik and therefore he held it could not be done. However, Achitofel introduced a kal v'chomer from Sotah. By Sotah the right to erase Hashem's name to bring peace is also only a safeik. If she is indeed guilty it will not bring peace, yet it was permitted because of the chance that she is innocent and the erasing of Hashem's name will restore their shalom bayis. This is very meduyak in rashi - לעשות שלום בין איש לאשתו- לבדוק את הסוטה ואם טהורה היא יהא שלום ביניהם, only if she is actually innocent will it bring peace. Therefore, learning a kal v'chomer from sotah would be an effective way to show that even for a safeik of restoring peace the name of Hashem could be erased. That is why we need the source from Sotah and can't rely on the standard pikuach nefesh approach.
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On another note- there is a major historical flaw in the story. Achitofel died after advising Avshalom and Avshalom preferring the advice of Chushai Ha'archi, which happened prior to Dovid purchasing the land for the Beis Hamikdash from Aravna HaYevusi. So, when Dovid was digging the שיתין, Achitofel should have been long dead. See Rashi in Makos 11a.

Wednesday, March 19, 2014

Succah 46a - Making a Bracha on Seeing a Mitzvah

The gemara says that for Ner Chanukah there was a bracha of she'asa nissim instituted on the seeing of the mitzvah, even without actually performing the mitzvah. Rashi implies that so long as one has not yet lit ner chanukah, they make a bracha on the seeing of the ner lit by someone else, even if they intend to light themselves later that evening. Rashi in Shabbos is explicit about this. However, we follow the opinions that the bracha on seeing was only instituted for those who don't intend to light themselves, and don't have people in their household lighting for them.
Tosafos asks why chazal did not institute a bracha on seeing any other mitzvah, and only instituted a bracha for the seeing of Ner Chanukah. It seems that Rashi was also bothered by this question and tries to address it. Rashi writes - ורואה אותה בפתחי ישראל שמצוה להניח בפתח, צריך לברך על ראיה הראשונה. Rashi seems to add a superfluous line - שמצוה להניח בפתח. Simply, Rashi is just explaining how one happens to see the Ner lit by someone else when just passing by on the street. However, it seems to me that Rashi is trying to say that lighting in a way that it is visible from the street was part of the ikar takana of ner chanukah, therefore when one sees the ner chanukah of someone else, chazal instituted a special bracha. For other mitzvos where the publicizing was not part of the ikar takana, chazal were not mesakein a bracha on merely seeing it.
Tosafos offers three answers to this question. 1. Due to the חביבות הנס and inspiring love for the miracle, they instituted a bracha on the seeing of Ner Chanuka. This would not apply to mitzvos that don't directly represent a Neis. 2. Many people don't have homes of their own in which to light Ner Chanuka, therefore chazal instituted a method of connecting them to the mitzvah by making a bracha on the seeing of the candle. 3. It only makes sense to institute a bracha on the seeing, if when actually performing the mitzvah, one would also make that bracha. Since there is no bracha of שעשה נסים made on taking lulav and sitting in a Succah, there is no bracha made on the seeing of it.
Tosafos rejects the second answer by saying that it is difficult from mezuzah. Meaning, if chazal were worried about one who doesn't have a house being unable to perform this mitzvah and therefore instituted some connection to the mitzvah, namely to make a bracha on the seeing of the Ner, they should have instituted a bracha on seeing a mezuzah as well, to accommodate for those who don't have homes to hang a mezuzah.
This question of Tosafos is very difficult to understand. It seems that there is a fundamental distinction between mezuza and ner chanukah. One who doesn't have a house is patur from mezuzah. In other words, mezuza is a chovas ha'dor, an obligation on one who lives in a house. The house is the me'chayev in the mitzvah. Without a house there is no obligation to do the mitzvah at all. One is certainly not compelled to buy house to perform this mitzvah. However, the mitzvah of ner chanukah is a mitzvah on the individual, just that one needs a house to have a place to light. One who is missing a house is still technically obligated in the mitzvah, just that they have no ability to perform it. It is as if they are handcuffed to a pole and therefore unable to take lulav. Therefore, it would make sense that for such a situation chazal would institute a possibility to at least connect to the mitzvah and make a bracha on the seeing of the Ner.

Friday, March 14, 2014

Succah 42a - Intent Not To Be Yotzei

Tosafos 39a writes that one of the solutions to ensure that one is going to be making the bracha prior to performing the mitzvah of lulav is to intend to NOT be yotzei by lifting it up until after the bracha. Tosafos is confident that this works, since even according to the opinion that mitzvos don't require kavana, when one has intent explicitly NOT to be yotzei, he is not yotzei.
The Biur Halacha (cited in my sefer nasiach b'chukecha pg 129) writes that if one is accustomed to always counting sefira after tzeis hakochavim, and is asked by someone during bein hashmashos what night of the omer it is, even if they responded with the correct number they can count later with a bracha. The justification is that even if mitzvos don't require kavana, since this person always counts later, it is as if he is intending not to be yotzei when he tells his friend the correct number.
To extend this sevara one step further, perhaps one can argue that when one is accustomed to always doing a mitzvah with a bracha, until they actually make the bracha it is as if they were intending not to be yotzei. In other words, if the biur halacha is correct that we can look at the persons general practice to consider it as if he were intending not to be yotzei, we should be able to look at the absence of the bracha as an indication as well.
There is a clear proof from Tosafos that this is incorrect. The gemara on 42a struggles with how to find a case where a person is carrying out a lulav and will not be yotzei. Tosafos asks why don't we just say that he isn't yotzei since mitzvos require intent and he is not intending to be yotzei. Tosafos explains that since he isn't making a bracha now, it is clear that he is not intending to be yotzei. The implication of Tosafos is that according to the opinion who says that mitzvos do not require kavana, the gemara works out fine. But why don't we say that even according to the opinion that kavana is not necessary, he should not be yotzei by carrying it out. The rationale would be that since he is not making a bracha now, it is as if he intended explicitly NOT to be yotzei because his practice is to always do this mitzvah with a bracha. Clearly, Tosafos holds that although explicit intent to NOT be yotzei would work even according to the opinion that מצות אין צריכות כוונה, but by merely not making a bracha we CANNOT interpret his intent to be as if he were intending NOT to be yotzei. Tosafos assumes that if mitzvos don't require intent he would be yotzei, and that is why the gemara needs to struggle to find the case where he isn't yotzei.