Monday, December 30, 2013

Yoma 54a - A goy Making Tzuros for a Jew

The gemara says that there were tzuros of keruvim that were painted and carved into the wall of the beis hamikdash which were there even in the second beis hamikdash, after the keruvim on the Aron and the keruvim of Shlomo that stood on the floor were no longer present.
Tosafos launches into a discussion as to how there can be animal pictures printed in the machzorim. Although Tosafos begins by saying that pictures in siddurim and machzorim serve as a distraction so they are not a good thing, it is nonetheless permitted. Tosafos begins by saying we find that Rabban Gamliel had tzuros of the moon that he would show to the witnesses who came to testify about rosh chodesh, and the gemara says that although they are forbidden to make, "others made it for him". Meaning, it was done by goyim. Although the gemara says that it would still be forbidden to own and maintain, due to chashad (Rabban Gamliel was an exception since there were always people there so there was no chashad), Tosafos explains that since the pictures in the machzorim are not 3 dimensional, there is no chashad. There are 3 stages in Tosafos. In stage one the implication is that it would be forbidden for a Jew to make these tzuros in the machzorim, and it was only permitted to be maintained since it was not 3 dimensional. In the second stage Tosafos proceeds to explain that since they are not 3 dimensional, it is even permitted for a Jew to actually make pictures of these animals. In the final stage Tosafos explains that since the pictures were of animals, not of human faces, there is no prohibition whatsoever even to make 3 dimensional pictures.
R. Akiva Eiger, in the Gilyon HaShas asks that according to the first stage of Tosafos where it was forbidden for a Jew to make, but permitted because it was made by goyim, there should be an issur of amirah l'nachri? The Tosafos in Rosh Hashana explains that the only reason that Rabban Gamliel was able to have them made by goyim was because it was for a mitzvah purpose, implying that without that advantage it would be an issur d'rbonon of amirah l'nachri. Why then would it be permitted here to have a goy do it?
In truth the placement of R. Akiva Eiger's question is difficult. At the end of Tosafos because the distinction at the beginning of Tosafos is only a hava amina before Tosafos develops that there is no issur at all. In the end of Tosafos they make a practical distinction between the mador elyon and mador tachton, whether they can be made by others. R. Akiva Eiger could have asked his question on what Tosafos actually concludes. The Rashash rejects the question of R. Akiva Eiger by saying that we are not dealing from the perspective of those making it, we are dealing from the perspective of once it was already done whether it can be maintained. It may be assur to commission a goy to make it, but once it is done there is no issur in purchasing the machzor and using it.

Tuesday, December 24, 2013

Yoma 46b - Hutra or Dechuya

The Rambam writes that Shabbos is dechuya in a situation of pikuach nefesh. The Kesef Mishna says that his source is from tu'mah where we pasken it is dechuya and not hutra. The Maharatz Chiyus asks from our gemara. How does the kesef mishna assume that since tu'mah is only dechuya, therefore shabbos is also only dechuya? Our gemara makes an assumption that shabbos is hutra for the korban tamid, yet tu'mah is only dechuya. We see from here that although tu'mah is only dechuya, shabbos can be hutra, so how does the kesef mishna make the assumption that they should be the same?
In my opinion the kesef mishna is correct. The issue is not a shabbos vs. tu'mah issue, rather the reason our gemara assumes that shabbos is hutra for korban tamid is because the mitzvah of korban tamid is meant to be done on shabbos. The system was set up with the natural conflict and the resolution being to bring the korban tamid even on shabbos, therefore rendering it hutra. However, when the two events conflict by chance or by circumstance, then it is dechuya, not hutra. Therefore, tu'mah b'tzibur is only d'chuya. Shabbos in the place of pikuach nefesh is also only dechuya because it is just circumstances of someone being in a life threatening situation that creates the conflict. Therefore, it is legitimate to learn shabbos for pikuach nefesh from tu'mah, and not learn from shabbos for korban tamid.

Friday, December 20, 2013

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

The gemara quotes a mishna in Parah where the Tana Kama and R. Yehuda argue who is kasher for the kiddush (mixing ash and water) of parah adumah. T.K. holds that a חרש שוטה וקטן cannot do it, but a woman can. R.Y. holds the exact opposite, a woman cannot, but a child can. Regarding the machlokes of whether a woman can do it, the gemara says that they argue whether ונתן is meant to exclude ונתנה. But regarding the machlokes of whether a child can do it, the gemara says that they argue whether we darshen ולקחו to be inclusive, and therefore forcing us to include a child. It is understandable that R. Yehuda would normally exclude חרש שוטה וקטן from everything, but here the pasuk forces an inclusion. But why does he just include a child and not a חרש ושוטה? Tosafos writes: והא דמכשיר טפי בקטן במחרש ושוטה, יש לומר משום דאתי לכלל דעת. Since a child will out grow his לאו בר דעת status, it is more logical to include a child, rather than including a חרש ושוטה who are permanently fixed in their לאו בר דעת status.
The Chazon Ish (Parah 11:11) points out that when we include a child, we are obviously only including a child who is of age to make rationale decisions and would objectively be considered a בר דעת if not for the Torah excluding him. A child who is so young that he is essentially a שוטה would certainly be passul even according to R. Yehuda both for kiddush of the ash and water, and for the sprinkling. The machlokes is only about a child who has some level of intellect that we would consider a בר דעת in general - אלא שגזירת מלך הוא שאין דעתו מספקת במצות התורה אם לא היכי דאתרבי.
From the Chazon Ish it sounds like the real distinction between a child and a חרש ושוטה is that the latter are essentially not בר דעת, whereas a child has achieved some level of da'as that requires a גזירת התורה to consider insufficient for mitzvos. Therefore, if we have a pasuk we apply it to include a child faster than applying it to include a חרש ושוטה.
To me it seems that this approach doesn't fit well in Tosafos. If the advantage of a קטן is that he actually has a higher level of intellect that a חרש ושוטה, why would Tosafos write that his advantage is that he is אתי לכלל דעת, meaning he will come to be a bar da'as, rather than writing that he is included because he is already a higher level intellect than a חרש ושוטה. To me it seems from Tosafos that we are speaking about a child who is no more rational than a חרש ושוטה, yet we include him for kiddush since he has the advantage that he will become a bar da'as. The sevara seems to be that although he is no better now, it is a מום עובר, a blemish that will pass in due time. Since we are forced to include someone from the extra pasuk, we include a child.
Furthermore, we find that for other things we categorize a חרש together with a קטן and only consider a שוטה  to be a real לאו בר דעת. The halacha is that a child can make a kinyan when there is a דעת אחרת מקנה, someone else giving it to him. The Rambam (Mechira 29:4) implies that a shoteh cannot make a kinyan even with דעת אחרת מקנה - see magid mishna. The Ketzos (243:4) assumes that a חרש is like a child who can make a kinyan with a da'as acheres being makneh, it is only a shoteh who is a complete non-bar da'as who cannot. If the Chazon Ish were correct that the present intellect of the child is what makes him stand out, we should have included a חרש together with him since for kinyan we assume them to have the same level of intellect. The fact that we don't include a חרש for kiddush implies as Tosafos writes that the advantage of the child is not his present intellect, but rather that we regard his lack of intellect as a temporary problem.

Thursday, December 19, 2013

Yoma 42a - Saying Bifanai Nichtav on a Gett

Rav Mendel Senderovic shlit"a has a letter printed in his sefer Atzei Besamim (38), that he sent to Rav Nota Greenblatt shlit"a asking what is the appropriate language for the shliach who brings a gett to use. The halacha demands that when a shliach delivers a gett outside of EY he must declare at the time of delivery - בפני נכתב ובפני נחתם, confirming that it was written and signed in his presence. However, what often happens is that the sofer ends up as the shliach, so the question becomes whether to stick with the precise nusach of בפני נכתב ובפני נחתם that was instituted by chazal, or modify the nusach to be אני כתבתיו ובפני נחתם which is more accurate. Rav Senderovic points out that it seems to be a dispute between the Radvaz and Panim Meiros. Rav Nota responded that his custom is to say the standard בפני נכתב ובפני נחתם then to deliver the gett into the hands of the woman, and immediately to say אני כתבתיו ובפני נחתם. 
I am also in this situation quite often where I am the sofer and the shliach. I do what Rav Nota suggested and what I have seen him do (However, I didn't notice that Rav Nota was careful to say אני כתבתיו ובפני נחתם specifically after the delivery, rather he says בפני נכתב ובפני נחתם אני כתבתיו ובפני נחתם as one continuous phrase and immediately places the gett into her hands, which is what I do as well.)
There is a strong proof from the gemara on todays Daf that the language of בפני implies that it was done in your presence, but that you weren't actually the one doing it, thereby demanding a modified language so that the testimony isn't false. The gemara says that the pasuk ושחט אותה לפניו by the para aduma implies שיהא זר שוחט ואלעזר רואה. Meaning, the fact that the Torah says that it is done in the presence of Elazar implies that it is NOT done by Elazar himself, and is used as a source that the shechita of the parah doesn't need a kohein. Similarly, the language of בפני נכתב would imply that it was written by someone else in the presence of the one saying those words, but not by the person himself. Therefore it would make sense that the phrase should be modified to clearly state that the shliach himself did the writing of the gett.

Wednesday, December 11, 2013

Yoma 34b - Tziruf

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

Tosafos cites the R"i who learns the gemara differently. Abaye was only suggesting that a davar she'eino miskavein was not assur on a torah level, it was only assur m'drabonon. The gemara challenges this from mila where we need a pasuk to change the default of a דבר שאינו מתכוין אסור מן התורה, and answers that since by shabbos there is an additional requirement of מלאכת מחשבת, even R. Yehuda would admit that a דבר שאינו מתכוין by shabbos would only be drabonon. Since it is only d'rabonon, we are meikel in the beis hamikdash for the need of the avoda. Based on Tosafos we can prove that R. Yehuda only considers a דבר שאינו מתכוין to be an issur d'oraysa by other issurim, but not by Shabbos.
According to Tosafos it is easier to understand why the mishna only permitted this when the kohen was old or an istanis. If the kohein could bear the cold water it would be assur since it would not be necessary in the running of the beis hamikdash and would not be a need of the avoda. According to Rashi it should have even been permitted for a young kohein.

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

Tuesday, December 10, 2013

Yoma 33b - Ein Ma'avirin Al HaMitzvos

The Radvaz (Teshuva 522) writes that the concept of אין מעבירין על המצות  is only d'rabonon  and that the drasha of ושמרתם את המצות is only an אסמכת. According to this approach the requirement to do the דישון מזבח הפנימי prior to the הטבת הנרות is only m'drabonon, but m'doraysa there is no particular order. The Radvaz proves this from the approach of Rabbeinu Tam (cited in tosafos) that one must be careful to put their tefillin in the bag in a way where they will not be forced to pass by the tefillin shel rosh to get to the tefillin shel yad. The implication is that if their shel rosh was on top, they would indeed pass their shel rosh, violating אין מעבירין על המצות to put on their shel yad first (to maintain the order of the pasuk). The Radvaz explains that if אין מעבירין על המצות would be d'oraysa, why would we violated the issur of passing by the shel rosh, just to fulfill the mitzvah of putting on the shel yad first. Therefore, he concludes that the entire concept must only be d'rabonon, so the order of the pasuk which is d'oraysa trumps the issue of אין מעבירין על המצות. 
The Maharatz Chiyus challenges the Radvaz based on Rashi in Succah 25b who implies that the concept of אין מעבירין על המצות is indeed d'oraysa. It seems to me that Rashi here also implies that it is d'oraysa. When the gemara discusses how to use the extra terms בבקר written by the שני גזירי עצים, and rejects an alternate approach because we would have nothing left to use to divide the neiros which the pasuk seems to require. Rashi comments that we could use the דישון מזבח to divide the neiros, 5 before and 2 after. Rashi says this is not possible because that would demand passing the מזבח to get to he menorah and would violate אין מעבירין על המצות. In this context rashi is using אין מעבירין על המצות as a premise to explain the pesukim, clearly implying that it is a torah recognized concept, thereby rendering it d'oraysa.
However, it seems to me that the Tosafos Yeshanim understands that it is only d'rabonon. Tosafos Yeshanim ask why do we need to say that the wood on the ma'aracha of the outer mizbeiach (שני גזירי עצים) proceeds the דישון מזבח הפנימי because of the burning wood is hechsher mitzvah, it can simply be because of אין מעבירין על המצות and one reaches the outer mizbeiach first. Tosafos Yeshanim answers that there would be an alternate logic that things done inside the heichal are more important - מצות פנים עדיפא, which would have overridden אין מעבירין על המצות, so we need the sevara of מכשיר עדיף. If the logic of מצות פנים can override the issur of אין מעבירין על המצות, it must be that he is understanding that אין מעבירין על המצות is only d'rabonon because if it were d'oraysa, how can a sevara override it! This would support the Radvaz.