Pesachim 58-59 When one mitzva clashes with another: עשה דוחה עשה

In loving memory of our dear friends, Judith Ginsburg and Ian Shapiro of blessed memory, who were both recently taken by the cursed COVID-19 plagues, as well as that pillar of the South Africa and world Jewish community, the great philanthropist and איש חסד, Eric Samson of blessed memory, who passed away yesterday in Los Angeles.

In an all-encompassing field such as halacha, it is inevitable that at times, one value will clash with another, and it is reasonable to assume that the halacha itself provides solutions for such a clash.

One of the rules we have seen is the principle of עשה דוחה לא תעשה  – a positive mitzva pushes aside a negative one  (Yevamos from 3a.)

Although the basis behind this rule requires much analysis, one approach seems to be that when one action involves both a prohibition and a positive mitzva, we define the act based on the positive mitzva and not based on the prohibition.

For example, the act of circumcision when the 8’th day falls on shabbos involves a prohibition against melacha on Shabbos, as well as the mitzva of circumcision, and this rule tells us that the positive mitzva of circumcision pushes aside the prohibition of melacha on shabbos, and the act is performed.

Where a garment is made out of linen and the tzitzit are made out of wool, the same principle tells us that the act of wearing is defined by the positive mitzva of tzitzit and not by the prohibition of wearing shaatnez.

On the other hand, a different principle tells us that the ends does not always  justify the means- for example, one may not fulfil the mitzva of the 4 species on Sukkot if they have been stolen- this would be considered a מצוה הבאה בעבירה  (a mitzva that comes/came   with/through a sin), another rule requiring more precise definition.

On our dapim, we encounter another principle that relates to clashes between mitzvos, this time when one positive mitzva clashes with another.

There is a positive mitzva, known as עשה דהשלמה , which states that the תמיד של בין הערביים  (regular afternoon sacrifice) should be the last sacrifice of the day, with the notable exceptions of the נרות  (evening candles)  the evening קטורת  (incense), and the קרבן פסח  (pesach offering.)

Yet there are times when someone might need to offer a different sacrifice after the afternoon offering has already been made, in order to be declared fit again to eat the קרבן פסח .

For example, a מצורע  (leper) might need to still bring his final offerings that afternoon, without which he would not be permitted to eat his קרבן פסח .

The same might apply to one who needs to eat a קרבן שלמים  (peace offering) that he has brought.

Here, there is no blanket permission to actively be מבטל מצות עשה  (nullify a positive mitzva) in order to actively fulfill another.

Yet there are cases where due to the greater status of the one commandment, the other will take priority.

The Gemara on 59a brings a Beraisa which tells us that a מצורע  (leper) who needs to bring his final sacrifices to clear him to fulfill the command of eating the korban pesach, one of the only two positive mitzvot that one incurs the severe punishment of כרת  for neglecting to perform, the more severe commandment to eat the korban pesach pushes aside the requirement for the regular afternoon sacrifice to be the last non-Pesach sacrifice of the day!

The same Beraisa, however, also gave permission any time to a regular impure person on any evening of the year to bring his outstanding sacrifice after the   תמיד של בין-הערביים in order to be able to eat his קרבן שלמים that needs to be eaten that night!

The Gemara notes that seeing as refraining from eating these sacrifices is not subject to the same severe terms, they should not in and of themselves be enough to push away the עשה דהשלמה.

The Gemara thus qualifies the later permission to be referring to situations where the אסור עשה does not apply, seemingly concluding that only a positive mitzva that involves כרת  if not performed may push aside another positive mitzva (or its related אסור עשה.)

Yet, as mentioned above, there are other times when a positive mitzva pushes aside another one, among them:

  1. The laws of mourning (even the biblical ones on the first day) do not apply on Chol-hamoed, as the obligation to mourn is pushed off by the obligation to rejoice on the festivals, which is an  עשה דרבים  (positive command on the public-Moed Katan 14b.)
  2. The prohibition against freeing an עבד כנעני  (Caananite slave [in the days when slavery was acceptable]) is derived from the positive mitzva of לעולם בהם תעבודו  (you shall work them forever.)   Yet, the Gemara (Brachos 47b) tells us how Rabbi Eliezer freed his slave to make a minyan (Brachos 47b), and that it was not considered a מצוה הבאה בעבירה  because it was for the sake of a מצוה דרבים  (public mitzva.)

We should note that the term עשה דרבים  is not used there, probably because making a minyan is only a rabbinical mitzva, but that we see that even a rabbinical mitzva of the public, however that is defined, might push aside an אסור עשה , at least this particular one.

3. There is a similar case of the חצי עבד חצי בן חורין  (half slave half free person whose owner is compelled to free him so that he can fulfill the mitzva of פרו ורבו  (having children- Gittin 41a) Seeing as the mitzva of פרו ורבו  is based on the idea that the world should not become desolate of people, perhaps this is also considered a מצוה דרבים- see Tosfos and other Rishonim on the above sugyos for further discussion.

There is much to discuss about the rule that a more serious mitzva can push aside a less serious one, but I would like to focus on one issue brought up by the Tosfos.

One of the limitations of the rule of עשה דוחה לא תעשה is that one has to perform the לא תעשה  at the same time as the עשה .

If the לא תעשה  is done before the עשה, then the rule does not apply, its is forbidden, and might also be a מצוה הבאה בעבירה.

This makes sense according to the explanation we brought regarding the dynamics of עשה דוחה לא תעשה.

One can only define an action based on its mitzva component as opposed to its aveira component when they are both components of the same action, forcing one to choose how to define it. In such a case, the Torah teaches us that the mitzva component prevails.

If however,  two different actions are involved, then there is no need to choose, and the initial forbidden action cannot become permitted because of a later different “mitzva” action- here we say that the ends do not justify the means.

Assuming the mechanism whereby a more serious positive mitzva pushes aside a less serious one is similar to that of עשה דוחה לא תעשה, one would expect the same limitation to apply, and in the case of mourning on chol hamoed, it indeed could- one is pushing aside one’s obligation to mourn at precisely the same time that he is fulfilling the mitzva of rejoicing on the festival.

Yet in our case, we see that one may bring a sacrifice after the תמיד של בין בערביים in order that one will later be able to fulfill the mitzva of קרבן פסח, even though these do actions are clearly not at the same time!

Tosfos points out that the same applies in the case of freeing the slave in order to make the minyan (as it does while freeing a slave in order for him to be able to have children.)

In truth, one could have explained the case of the slave differently, saying that the very prohibition of freeing a slave only applies if it is not done for the sake of a mitzva, making it different from other אסורי עשה .

From the fact that Tosfos does not do this, we see that he sees the case of the slave not as an exception but as a precedent for any public mitzva pushing aside an אסור עשה, possibly even a rabbinical one, which would be a tremendous חדוש  requiring further discussion.

In any case, in our case, there is no possibility of such an explanation, and Tosfos concludes that when it comes to situations where we do apply the rule of עשה דוחה עשה, the limitation that the two need to take place simultaneously does not apply. This is because unlike its “sister” principle where a positive mitzva pushes off a negative mitzva which is generally treated as more severe than a positive mitzva, in this case it is the more serious mitzva which is pushing off the less serious one.

It is clear that even if Tosfos would accept the “lomdus” in עשה דוחה לא תעשה  that we have discussed, this same mechanism could not explain the principle of עשה דוחה עשה , making them two unrelated principles, rather than “sister principles” as we assumed!

It remains for us to suggest an alternative explanation for the dynamics of at least this second principle!

Hopefully we shall have a chance in the future to do precisely that.

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

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