Pesachim 93 The Status of Pesach Sheini- A Chag in its own right?

Posted on March 1, 2021 by yoniisaacson

The Mishna on 92b tells us that not only one who was impure or far away on Pesach, as per the biblical imperative (Bamidbar 9/9-13 ) but also one who was שוגג ( unknowing) or אונס (prevented from bringing it by reasons beyond his control) may and must bring his קרבן a month later on פסח שני.

There is a significant debate between רבי and רבי נתן as to the nature of this day.

According to רבי, it is considered a רגל בפני עצמו (festival in its own right) whereas according to רבי נתן, it is merely תשלומין (a “make-up” opportunity) for the mitzva missed on Pesach .

It seems that according to רבי, פסח שני brings with it a default obligation to bring a קרבן פסח but includes an exemption for those who have already brought one on Pesach itself.

In contrast, according to רבי נתן, there is no default obligation to bring a קרבן פסח that comes with פסח שני, but just an inherited one from Pesach if it has not already been carried out. (to phrase it in “Lomdishe” terminology, According to רבי, the מחיב is actually פסח שני with פסח being a פטור for those who brought their קרבן already on it. In contrast, according to רבי נתן, the מחייב is actually Pesach itself, with פסח שני merely being תשלומין if it was missed.)

A major נפקא מינה (practical ramification) of this debate regards someone who converted between Pesach and Pesach Sheini, or a child who became Bar/bat-Mitzva during this period.

Should we say that פסח שני is a festival in its own right, then it follows that they should bring a קרבן on פסח שני. On the other hand, should we say that it is merely a תשלומין for the missed mitzva on Pesach, then seeing as they were never obligated by פסח ראשון, there is no missed mitzva for them to make up!

Another נפקא מינה relates to when the punishment of כרת is applicable.

Rebbe holds that one can get כרת for intentionally missing the קרבן פסח on either date, and the Gemara understands that this is consistent with his view that פסח שני is its own independent festival.

Though, as Rashi points out, one person cannot get כרת twice, this does mean that a person who knowingly missed either date and unknowingly missed the other, will be liable to כרת, and that in the above-mentioned case of the convert, knowingly missing פסח שני will result in כרת. (interestingly enough Rashi mentions the case of the convert and not the case of the child regarding כרת – perhaps this is because he holds like the views in Chazal that אין בית דין של מעלה עונשין עד גיל עשרים , a topic requiring analysis of its own– see Shabbos 89b and my Hebrew analysis on this subject. Yet see Pesachim 91b and תוס’ ד”ה “איש ולא קטן”)

In contrast, רבי נתן holds that one can only get כרת for knowingly missing פסח ראשון , the primary מחיב , in which case פסח שני does not exempt him from the כרת . If one unknowingly missed פסח ראשון or missed it for legitimate reasons, he never incurred the כרת in the first place and whereas פסח שני gives him a chance to make up for the lost mitzva, it does not have the independent status to create its own כרת if missed.

A third view in this regard is that of רבי חנניא בן עקביא who agrees with רבי נתן that פסח שני is not an independent festival but holds that it is not only a תשלומין (chance to make up the lost mitzva) but also a תקנתא (remedy) for the כרת incurred by knowingly missing פסח ראשון . As such, one would only be liable toכרת if he knowingly missed both opportunities!

Another possible נ”מ , though not mentioned in the Gemara, could be whether Pesach Sheini is to be treated as a low-level festival in other ways too, perhaps even for those who have brought the קרבן פסח and for all of us today who cannot do so? This could involve avoiding fasts, eulogies, saying Tachanun etc.

A more complex question that might be dependent on this debate but would also be affected by other considerations would be whether we will be liable to keep Pesach Sheini if the conditions that obligate us to bring the קרבן פסח were to return during the period between Pesach and 14 Iyar!

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There is a general rule of פסק (halachik rulings) that הלכה כרבי מחברו (the halacha follows Rebbe in a dispute with any of his colleagues-see Eruvin 46b) -AT first glance, one might think that this would indicate that we should rule like רבי that פסח שני is a רגל בפני עצמו.

Yet, in various places (for example Pesachim 27b, Kesubos 21a ) it is made clear that this rule usually only applies מחבירו (against one of his colleagues ) and not מחביריו (against more than one colleague)- In the latter case, the general rule of הלכה כרבים (follow the majority) still applies.

As such, seeing as bothרבי נתן and רבי חנניא בן עקביא hold that Pesach Sheini is NOT a festival in its own right, the view of the two of them should override that of רבי, and we should rule that it is NOT a festival in its own right.

Yet, the Rambam (Korban Pesach 5/7) rules that a convert who converted between the two Pesach’s, as well as a child who reached the age of majority during that period, MUST bring a קרבן פסח on פסח שני . his ruling regarding כרת (K.P. 5/2) is also consistent with the view of Rebbe, a point not lost on the Raavad!

Even more in need of analysis is the ruling of the Meiri (Pesachim 93a), who holds that the convert referred to above does NOT bring a קרבן פסח DESPITE the fact that we hold that פסח שני is a רגל בפני עצמו regarding כרת, a ruling that seems to contradict the link made between the two rulings by the Gemara!

The key to understanding the Rambam might lie in a different sugya (B.B 124b) where some views are brought that we follow רבי even against more than one of his colleagues, or that one is permitted to do so if one agrees with the logic in his arguments?

Perhaps the Rambam follows this view and uses this discretion to rule like Rebbe even against more than one of his colleagues- (this would admittedly go against the consensus of the Rishonim in Bava Basra who rule either like Rava or Rav Papa but so long as it is consistent in the Rambam’s psak in general, something we would need to test, it would not be illegal.)

And perhaps the Meiri goes a step further and uses this discretion to rule like Rebbe regarding treating פסח שני as an independent חג on the one hand but not like Rebbe regarding the convert or the child. Understanding that although the Gemara connects the two rulings, the logic is not precisely the same and it is possible to agree with Rebbe’s logic in one place and not in another?

Alternatively , it could be that the main debate is regarding the convert and the child, and there are only two views there, that of רבי and that of רבי נתן – it is just regarding the connected dispute regarding כרת where there are two views against Rebbe, and perhaps in a case where the main debate contains only one opposing view, the rule that we follow Rebbe still applies- This explanation might explain the Kesef Mishna (K.P. 5/7) who ironically explains that the Rambam rules like Rebbe specifically because of the rule of הלכה כרבי מחבירו against רבי נתן, seemingly ignoring the parallel dispute regarding כרת.

In truth, the Raavad raises this difficulty earlier on in the perek (K.P. 5/2) and the Kesef Mishna bring Rabbeinu Avraham son of the Rambam who explains that seeing as we are dealing with a 3-way dispute (whether פסח שני is its own festival, תשלומין דראשון , or תקנתא דראשון) , Rebbe is weighted against each of his colleagues separately, not together, and the rule of הלכה כרבי מחבירו still applies.

This explanation initially bothered me because at the end of the day, the Gemara did seem to indicate that the נקודת המחלוקת (point of contention) as about whether Pesach Sheini is an independent festival or not, and on that, Rebbe is clearly in the majority.

It seems that the way Rabbeinu Avraham understands his father, this is not quite precise, and seeing as רבי נתן and רבי חנניה בן עקביא derive their views from different readings of the verses, each one’s understanding of אינה רגל בפני עצמו is so different that they are seen as completely different views- This if course requires further analysis but might shed further light on the rather different ruling of the Meiri as well.

Much more to investigate, and we would need to test whatever explanation we choose against the Rambam’s other relevant rulings and the other relevant sugyos to see if it holds any water.

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Be that as it may, given that the Rambam has ruled conclusively that פסח שני is its own independent festival, does this have any significance for us in our day where no-one is able to perform Pesach Rishon?

Simply speaking, it seems not. Even according to Rebbe who holds that Pesach Sheini is an independent festival, this is most likely only for those whose obligation was pushed over to Pesach Sheini, not for those who obligation was fulfilled on Pesach Rishon or who despite not having fulfilled their obligation on Pesach Rishon do not have their obligation pushed over to Pesach Sheini.

Given that we have learnt explicitly )Pesachim 66b) that only individuals and NOT the entire community, (or even the majority thereof) have their obligation pushed over to Pesach Sheini, this independent festival simply does not apply in a case where the whole Jewish people were unable to bring the Korban Pesach, despite the rule of טומאה הותרה בצבור, for other reasons beyond their control.

Yet there does appear to be a “taste” of this festival for everyone in that many have the custom not to say Tachanun on Pesach Sheini ( interestingly based on the Megilas Taanis which lists it as a day when fasting and saying eulogies are not allowed-whether this should apply after Megilas Taanis ceased to be authoritative [see Rosh haShana 19b] is a question in its own right) ) and some even eat Matza!

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.

Pesachim 90-92 The אונן, Korban Pesach, and mourning laws on Purim

Posted on February 23, 2021 by yoniisaacson

The Mishna at the bottom of daf 90b lists a number of people who despite currently being unfit to eat the קרבן פסח may still be included in a group that the קרבן is slaughtered for, seeing as they will be fit to eat it in the evening.

This list includes, amongst others, one who is an אונן and a prisoner who has been promised that he will be freed by evening.

Although they may be included in a group, the קרבן may not be slaughtered for them alone, in case they do not become fit to eat it and the entire קרבן becomes invalid.

Although the term אונן is generally used to refer to someone who has lost a relative and still has not buried him, the usage of this term does seem to vary from place to place, and the reference to one over these 3 daf presents an opportunity to begin clarifying the scope, status, and laws of an אונן as opposed to an אבל and a regular person.

The term אונן/אנינות is found in the Chumash itself in the ודוי מעשרות, the declaration made in the third and sixth year before Pesach verifying that one has separated all his tithes and treated them according to halacha.

One of the phrases in this declaration is “לא אכלתי באוני ממנה” (I never ate from it while I was in my אנינות – Devarim 26/14.)

The implication is that it is forbidden to eat one’s Maaser Sheini while one is an אונן (the other tithes are not eaten by the original owner but by the Levi ,the poor, or the Kohain)

What precisely “באוני” means is not evident from the פסוק,but the Ibn Ezra sees it as synonymous with “אבלי” (my mourning) and connects it to the naming of Binyamin as “בן אוני” (Bereishis 35/18.) and “לחם אונים “ (Hoshea 9/4).

Although the actual word is not used, reference to the day one lost a relative can also be found regarding sacrifices, where Aharon explains that the reason he did not eat from the inaugural sacrifices we because he had lost his 2 sons that day (Vayikra 10/19)

The Targum Yonatan explains that Aharon made a “kal vachomer” argument to Moshe- If an אונן is not permitted to eat מעשר שני, how much more so a קרבן חטאת which has a much greater sanctity.

By making this link, the Targum seems to have made it clear that Aharon had the same status of the אונן mentioned regarding מעשר שני and that this phrase refers to the day of death, leading us to conclude that אנינות דאורייתא refers to the day of death, at least prior to the burial, and possibly also afterwards.

In truth, the Gemara (Zevachim 100b) brings a Beraisa which records a debate between Rebbe and Chachamim as to how long אנינות continues, at least on a rabbinical level/

Rebbe is of the view that it is only until the burial whereas the Chachamim hold that it is the entire day.

The Gemara discusses which day they are talking about, whether it is the day of death or the day of burial, in a case where the two do not coincide.

It argues that it is impossible that Rebbe holds that אנינות on the day of death ends after the burial even before the day is over, seeing as everyone agrees that the entire day of death is subject to the laws of אנינות based on the passuk “ואחריתה כיום מר” (after it is like a bitter day- Amos 8/10 ) and everyone also holds that the night after the day of death is rabbinically subject to the laws of אנינות.

רב ששית It then suggests that the dispute is referring to the day of burial and a long discussion ensues.

The Gemara concludes that according to Rebbe, the whole of the day of death is subject to אנינות דאורייתא and the night after, as well as the day and night after burial are subject to אנינות דרבנן.

Returning to our sugya, Rashi explains that the אונן mentioned in our Mishna who may be included in the group for a קרבן פסח seeing as he will be fit to eat it as night, is referring to one who has not yet buried his death, bringing support from the Gemara in Zevachim.

The Gemara (Pesachim 92b) explains that seeing as אנינות at night (even on the day of death) is only דרבנן, Chazal did not apply their own restrictions in a way that would cause the אונן to miss out on a מצות עשה whose neglect incurs the penalty of כרת.

In contrast, other קרבנות may not be eaten at night during אנינות דרבנן as Chazal upheld their restrictions even in cases where the אונן would miss out on a regular מצות עשה , so long as its neglect does not incur the penalty of כרת .

This requires further explanation- After all, the Gemara (Moed Katan 14b) rules that אבלות does not apply on Chol haMoed seeing as the עשה דרבים (public positive mitzva) of שמחת יום טוב pushes aside the עשה דיחיד of אבלות.

The usage of the term עשה indicates that this is referring to אבלות דאורייתא, in other words, אנינות on the first day.

If a public positive mitzva of rejoicing on chol hamoed pushes aside אבילות דאורייתא , why shouldn’t the mitzva of eating any קרבן, particularly public ones, push aside אנינות דרבנן?

Furthermore, surely the rule of עשה דוחה לא תעשה should allow the mitzva of eating a korban to push aside even a biblical prohibition of אנינות ?

The solution to the later question seems rather straight-forward:

When one action consists of 2 independent results, one a mitzva and one an aveira, the above rule might tell us that the action is defined as a mitzva and not an aveira.

However in the case of the prohibition of eating מעשר שני or קדשים during אנינות, the very essence of the prohibition forbids performing the עשה.

From the fact that the Torah forbids eating קדשים during אנינות , it is clear that the rule of עשה דוחה לא תעשה cannot apply here anymore than it would apply to any of the other prohibitions regarding eating them, such as doing so when impure.

It could follow that when Chazal extend such prohibitions, they do so under the same parameters as the original biblical prohibition and unless they specifically say otherwise, the fact that their decree is stopping the fulfillment of an עשה דאורייתא is irrelevant- that is the essence of the גזירה , just like it is with גזירה דרבה which stops us from fulfilling the מצוות עשה of shofar and lulav and the מצוה מדברי סופרים of קריאת המגילה on shabbos, by way of Chazal’s authority to require one to be שב ואל תעשה (passive) rather than perform a מצוה עשה under circumstances that concern them.

In contrast, when it comes to the laws of אבילות other than those relating to מעשר שני and קדשים, there is no specific עשה or גזירה דרבנן to mourn on Yom-Tov.

The requirement is to mourn during the specified mourning period, and it conflicts with another requirement to rejoice on the festivals – as such, the public requirement to rejoice on the festivals overrides the private requirement to mourn.

Similarly, there is no specific prohibition to eat the קרבן פסח while one is an אונן- the prohibition only follows from the general prohibition of eating קדשים, and whereas on the day of death when this prohibition is דאורייתא , the fact that eating it is an עשה שיש בו כרת might not be sufficient to override the prohibition, it is enough for Chazal to choose not to extend this prohibition if it will stop one performing such a serious mitzva.

We should also note that the 2 sources in the Torah for the laws of אנינות are limited not only to the day of death, but also to a prohibition against eating מעשר שני and קדשים.

A different area of the laws of אנינות relates to exemption from performing מצות, but other than not wearing Tefillin which might be a law of mourning itself, this seems to be dependant on whether one is in fact busy with the burial arrangements, and the main sugya on this can be found at the beginning of the third chapter of Brachos (18a.)

A third area relates to the various laws practiced as an expression of mourning, at least on the day of death. These might be an extension of the prohibition of eating מעשר שני or קדשים , either on a biblical or rabbinical level, but might also be completely non-related, on either level.

This could have major ramifications for whether the law of אבלות , particularly on the day of death, apply on Purim or not.

If we follow the ruling of the Rambam )Aveil 1/1) who holds that the requirement to keep certain signs of mourning on the day of death is indeed part of the law of אנינות דאורייתא, then it is unlikely that מצוה מדברי סופרים such as rejoicing on Purim, will override this .

On the other hand, if we follow other Rishonim who hold that the laws of aveilus are only rabbinical in status, it is more likely that the higher status of Simchas Purim as a מצוה מדי סופרים AND a מצוה דרבים will override them.

The resolution of this question is way beyond the scope of this post, but it is indeed a matter of debate between the Mechaber and the Rema in Orach Chaim whether public mourning applies on Purim or not! (O.C. 696/4 but compare Y.D. 401/7 where the Mechaber seems to agree with the Rema that it does not.)- Perhaps the law of הלכה כדברי המיקל בערוב should apply?!

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.

Pesachim 83-84 בסיס לדבר האסור בנותר and עשה דוחה לא תעשה

Posted on February 14, 2021 by yoniisaacson

I would like to have a brief look at some general principles in halacha which are referenced over these two dapim.

One of them is a principle we generally see in the laws of מוקצה on shabbos, but which has a surprising application in the laws of the קרבן פסח, possibly opening the door to a broader application of this rule.

The Mishna on daf 83a tells us that the bones, sinews, and נוצר (leftover meat) of the קרבן פסח need to be burnt on the 16 of Nissan, the first day of Chol Hamoed, unless the 16’th falls on Shabbos in which case they are burnt on the 17, seeing as we do not burn קדשים on Yom-Tov or Shabbos.

The Gemara on this Mishna opens by quoting a ruling of רב מרי בר אבוה in the name of רבי יצחק .

It is forbidden to leave over the meat of the קרבן פסח (or other sacrifices) until morning, a prohibition known as נותר.

If one transgresses and does so, one needs to burn it on the 16 Nissan, as per the above Mishna.

However this only applies to the meat, not the leftover bones, which usually do not usually require burning.

The חדוש of רבי יצחק is that if the bones supported leftover meat, they are also forbidden as נותר and need to be burnt.

The example Rashi gives, based on the continuation of the Gemara, is bones containing marrow.

Seeing as the bones contain or support the marrow which is considered edible meat and subject to the laws of נותר, the bones are considered a בסיס לדבר האסור (“base for something forbidden”) and also forbidden as נותר and subject to burning!

It is interesting to analyze whether this law is an extension of the same principle in the laws of shabbos, where a normally non-Muktza item that forms the base or support for a muktza item takes on the forbidden muktza status of the muktza item it is supporting. (See Shabbos 47a)

Alternatively, it could be that this a different rule sharing only the name, with different mechanics and parameters.

After all, while this rule is generally accepted in hilchos shabbos, the Gemara makes various attempts to prove or disprove it in our context regarding the קרבן פסח but makes no attempt to bring the fact that it applies by הלכות שבת as a support for רבי יצחק.

Furthermore, when it comes to הלכות שבת, the laws of בסיס לדבר האסור apply also to an item on top of which muktza is placed.

If this was simply an extension of that law, why would Rashi (and the Gemara) bring an example from bones containing marrow- surely bones without marrow but which still have meat connected to them should also have this status? (see Rabbeinu Chananel who indeed explains the Gemara as discussing bones with meat on them!)

If this is indeed an extension of this principle’s application in the laws of shabbos, we also need to investigate whether this is a general rule which extends to other areas of halacha as well.

For example, usually the bones of a non-kosher animal or נבילה being considered inedible are not treated with the same stringency as the meat itself when it comes to the laws of כשרות and might even combine with the kosher meat in mixture to nullify the non-kosher meat בשישים (in sixty times the amount-see Y.D. 99/1)

Should this principle be extended to all areas of halacha by default, perhaps when bones contain marrow, (or according to Rabbeinu Chananel if meat is still attached to them) they should be treated with the same stringency as the forbidden meat itself?

In order to answer these questions sufficiently, it is necessary to understand the source, whether פסוקים , מסורת, or סברא (logic/lomdus) for this rule both regarding shabbos and קדשים and assess whether the source is the same in both cases and whether it also applies to other cases or not.

As muktza is a דין דרבנן and נותר is a דין דאורייתא (though the rule of עצמות ששמשו נותר which designates it as a בסיס is likely דרבנן ), the first two might be problematic but a common סברא, so long as not contradicted by any counter-examples in the primary sources, might do the trick.

One possible conceptualization of this rule could be that when an item of neutral status supports an item of forbidden status, it loses its independent identity and takes on the nature of the forbidden item it supports, at least on a rabbinical level.

An analogy could be one who supports people’s sinful actions, מסייעין ידי עובדי עבירה, who to a certain extent, and on a rabbinical level only, are also considered sinners. Yet they do not take on the same status as the sinner himself, but only the status of one who transgresses the rabbinical prohibition of assisting sinners.

Yet in both our cases, the item supporting the forbidden item does not just become forbidden but takes on the status of the forbidden item.

This is not necessarily a contradiction as it is possible that a person, being a complex being with his own free choice and דעת while partly liable for other people’s sins that he enables, does not completely lose his independent status either.

In contrast, an inanimate object which lacks such דעת, has a far weaker level of independence, which is easily completely overridden by a forbidden object it supports.

If this is indeed the lomdus, it would not surprise us if this principle applies in other areas of halacha.

However, it is also possible that this principle is only applied by Chazal is certain specific cases and that in other cases, even if the logical principle they based this rule on applies conceptually, they chose for other reasons not to apply it there.

Much more to go into it, but as usual, just raising issues!

Another well known principle referred to at the bottom of 83b and beginning of 84a is the rule of עשה דוחה לא תעשה – a positive mitzva pushes aside a negative mitzva. (see my recent post on Pesachim 58-59 )

In our case, we learnt in the Mishna that one may not burn נותר on Yom Tov and waits till chol hamoed to do so.

The Gemara asks why the mitzva of burning the נותר does not push aside the prohibition of doing melacha on Yom-Tov based on this principle.

Various answers are given, but the final word goes to Rav Ashi, who explains that in addition to the prohibition of performing melacha on Yom-Tov, there is also a positive mitzva to rest on Yom-Tov, based on it being described as a שבתון (day of rest.)

Similar to shabbos, when one does melacha on Yom-Tov, one not only transgresses a negative commandment but also the positive command of resting.

Although a positive command pushes aside a negative command, it does not push aside a negative command and a positive command.

As such, the rule of עשה דוחה לא תעשה can never apply to melacha on Yom-Tov, just as it cannot apply on shabbos.

A broader study of the rule of עשה דוחה לא תעשה , particularly the long sugya in Yevamos, will reveal that one of the potential sources for this rule is the fact that a ברית מילה can be performed on shabbos- despite the fact that performing melacha on Shabbos involves both a positive and negative mitzva.

If this is the case, how does Rav Ashi say with such confidence that an עשה cannot push aside both a לא תעשה AND an עשה ?

Food for thought for next time we encounter this rule!

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.

Pesachim 64 Relying on miracles

Posted on January 28, 2021 by yoniisaacson

The Mishna on daf 64a describes how the Kohanim were divided into 3 different shifts for offering up the קרבן פסח in order to prevent overcrowding.

When the first group was full, נעלו דלתות העזרה (they locked the doors of the courtyard.)

On daf 64b, Aba opines that the correct גירסא (wording) of the Mishna is “ננעלו” (“were locked”-or that is at least what was meant by the Mishna.)

This implies that the doors were miraculous locked when occupancy was full.

Rava, in contrast, upholds the reading of the Mishna in front of us, and insists that people locked the doors.

The Gemara understands this as a debate between Abaya and Rava regarding whether we rely on miracles.

According to Abaya, people kept entering until the doors locked by themselves, relying on the expected miracle to keep them from the dangers of overcrowding.

In contrast, Rava holds that we do not rely on such miracles, and that people actively locked the doors.

Although it might seem from here that Abaya believes that it is permitted to rely on miracles, it is possible that this was only in the בית המקדש where miracles were the norm.

In fact, the Gemara on our daf later quotes a Beraisa that says that there was only one case in history when a person was harmed by the crowding in the Beis haMikdash!

Further, The Mishna (Avos 5/5) lists no less than 10 miracles that regularly took place in the בית המקדש , which I have attempted to translate as follows:

No woman miscarried from the smell of the sanctified meat.
The sanctified meat never became rotten.
A fly was never seen in the slaughterhouse.
The Kohain Gadol never had a seminal emission on Yom-Kippur.
The rain never extinguished the fire on the altar.
The wind never prevailed over the pillar of smoke.
A disqualifying property was never found in the Omer, two loaves, or show bread.
People stood crowded but had plenty space to bow.
A snake or scorpion never caused damage in Jerusalem.
No one ever said that he felt claustrophobic in Jerusalem .

Whereas most or perhaps all of this miracles could be considered natural miracles that though unlikely, do not involve that which is impossible according to the laws of nature, it is certainly clear from here that the בית המקדש was not comparable to anywhere else when it comes to the frequency of miracles, and even if a supernatural miracle such as doors automatically closing occurred there regularly enough that it could be relied upon, one can certainly not conclude from there that Abaya would condone relying on miracles anywhere else.

Although there is a concept that Torah and Mitzvos offer a degree of protection (see Sotah 21a and post on Pesachim 8) it is clear that where the danger is common or definitely present, one may not rely on that protection even while fulfilling a mitzva (Pesachim 8.)

Although Rabbi Yehoshua ben Levi took the rather extreme step of learning next to people who were afflicted with רעתן (a terrible contagious disease) relying on this protective power (Kesubos 77b), most Amoraim were particular to keep their distance, and if that was the case with some of the greatest Amoraim, it follows that this is certainly the case for all of us, whose stature does not compare to theirs.

Returning to our daf, we should note that Rava appears to hold that relying on miracles is not acceptable where a common danger is present, even in the בית המקדש where miracles were so common, AND even though it was during the fulfillment of one of the greatest mitzvos!

We should also note that with only 6 exceptions (see Bava Metzia 22b ) the halacha usually follows Rava in his disputes with Abaya.

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.

Pesachim 65-66 שבות במקום מצוה , קל וחומר, and גזירה שוה

Posted on January 26, 2021 by yoniisaacson

The Opening Mishna of our new perek lists the various מלאכות that form part of the process of the קרבן פסח that override Shabbos.

These include slaughtering it, sprinkling its blood, מחוי קרביו (cleaning the insides), and burning its fat, but not roasting it or rinsing the insides-Rashi explains that the later two can done after dark on Pesach night itself and thus do not override the shabbos laws.

Furthermore, the Tana Kama rules that הרכבתו (carry it on one’s shoulders), bringing it from outside the techum, or cutting a יבולת (wart) off it may not be done on shabbos.

Rabbi Eliezer, however, attempts to learn by way of קל וחומר that if מלאכה דאורייתא is pushed aside by the קרבן פסח , surely a שבות should be.

Rashi explains the view of the Tanna Kama, later expressed by Rabbi Akiva, that although these are all only שבותים (rabbinical prohibitions- see inside for why,) they could have been done before shabbos and are thus not permitted, an explanation Rabbi Akiva himself gives after some back and forth which itself requires further analysis.

It should be noted that although we have indeed seen places where a שבות is treated more stringently than a מצוה דאורייתא in order that people should not make light of it (see my post of Eruvin 2 for sources and some discussion), neither Rabbi Eliezer nor Rabbi Akiva appear to apply this argument to our discussion.

This seems consistent with what appears to be the default principle that biblical prohibitions are to be treated more seriously than rabbinical ones, in the absence of Chazal ruling to the contrary, something which itself is subject to much discussion and analysis.

The Gemara on daf 66 opens by relating how the בני בתירה had forgotten the rule that the קרבן פסח pushes aside the laws of shabbos, as per the above Mishna.

Hillel then proceeded to prove it to them by way of גזירה שוה based on the word “במועדו” which is used both by the תמיד and the פסח- just like the תמיד pushes aside the laws of shabbos, so does קרבן פסח.

He then adds that this can also be derived by means of a קל וחומר- if a regular תמיד which does not cause one who fails to bring it to be liable to כרת overrides shabbos, surely the קרבן פסח whose neglect brings about כרת should do so.

The Gemara asks how we know that the תמיד itself may be offered on shabbos, and concludes that we learn this from the passuk “עולת שבת בשבתו על עולת התמיד ונסכה”( “ The burnt-offering of Shabbos on its Shabbos, in addition to the regular burnt-offering” – Bamidbar 28/10), which clearly implies that the regular burnt-offering (תמיד) is offered even on Shabbos.

The Gemara then ask how Hillel could base himself on the קל וחומר when the logical argument is flawed- the תמיד is תדיר (regular) and is also a burnt offering, the holiest type of sacrifice which is completely burnt whereas the קרבן פסח is only once a year and is eaten by the owners!

Although the קרבן פסח is taken more seriously regarding punishment, the תמיד is taken more seriously in other ways and the former can thus not be said to be objectively more important than the later.

It answers that the קל וחומר was actually argued first, and when the בני בתירה countered its logic as per the above argument, he then presented the גזירה שוה.

Unlike a קל וחומר argument, which any sage could make based on his own logic but could also be countered by another sage’s logic, a גזירה שוה is based not on logic (at least alone) but on מסורת (tradition.)

A sage may not simply derive anything he wishes from a גזירה שוה, but may only apply a גזירה שוה which he has received from his teacher as part of the oral tradition (see Rashi ד”ה “וכי מאחר” for his precise explanation of this rule, which we shall hopefully be able to revisit in a later post.)

This limitation also gives it an advantage, in that a countering logical argument cannot push It aside.

The Gemara explains that despite this advantage, Hillel initially preferred to use the קל וחומר argument , seeing as his contemporaries could retort that they not received this גזירה שוה by way of tradition like he had- only once the קל וחומר failed, did he resort to the גזירה שוה.

Although the Mishna clearly holds like Hillel, it remains unclear if and how he was able to convince the בני בתירה of this, given that they had countered the logic in the קל וחומר and also did not have the גזירה שוה as part of their tradition.

Are we to learn from this event that even if a certain sage has not received a גזירה שוה from his Rabbi, once another sage has revealed a גזירה שוה to them from his מסורות, they are also to accept it?

If so, why was Hillel initially reluctant to use this גזירה שוה?

On the other hand, if those sages are not required to accept a גזירה שוה revealed by a colleague, of what help was the גזירה שוה in advancing Hillel’s argument at the end?

The Gemara on daf 66b returns to discussing the relative weight of a שבות as compared to aמלאכה דאורייתא and asks whether a melacha may be performed כלאחר יד (in a back-handed or unusual manner) for the sake of a mitzva.

The specific case discussed is what happens if one forgot to bring the knife needed for the שחיטה before Shabbos, seeing as this is not one of the things one is permitted to do on shabbos for the sake of the קרבן.

On the previous amud, we learnt that Hillel and his teachers, Shmaya and Avtalyon, had permitted sticking the knife required for the שחיטה in the wool or hair of the animal so that it is carried by the animal and not by a person.

The Gemara queries this for various reasons, among them the fact that it is biblically forbidden to perform an action which causes one’s animal to carry something for him on shabbos (מחמר).

It answers that this is מחמר כלאחר יד , an unusual way of getting an animal to carry something,and Rashi explains that this is because a lamb is not usually used for carrying things (like a donkey or camel are.)

The Gemara counters that מחמר כלאחר יד is still forbidden on a rabbinical level, and answers that this is precisely the question that had been asked of Hillel.

As its wording seems rather cryptic, I choose to quote the original Aramaic:

דבר שיש לו התיר מין התורה ודבר שבות עומד לפניו לעקרו כלאחר יד במקום מצוה מאי?

Something which is permitted on a biblical level and a rabbinical prohibition stands in its way- may one up-route it in a back-handed manner for the sake of a mitzva?

Although the precise wording seems to be referring to performing a שבות in a backhanded manner, closer to what we often referred to in halacha as a שבות דשבות לדבר מצוה, the comparison drawn to our case seems to be referring to performing a מלאכה דאורייתא with a שנוי for the sake of a mitzva, which would be a far more drastic leniency.

The answer he gave, as quoted on the previous amud was in the affirmative – הנח להם לישראל אם לא נביאים הם בני נביאים הם!

May one derive from here that any שבות may be performed for the sake of the mitzva?

It seems clear from the Mishna (according to Rabbi Akiva) that it certainly may not, even for the sake of a קרבן פסח, at least if it could have been done before Yom-Tov.

As such, this leniency needs to be applied less broadly, perhaps specifically to the שבות of כלאחר יד .

Rashi (ד”ה שיש לו התיר) , explicitly notes this distinction and explains that doing something כלאחר יד is less severe than other שבותים, seeing as it is (relatively) uncommon (Chazal usually only make their decrees in cases that are common!)

In contrast, the Tosfos do not appear to make this distinction, and query how this could be permitted, seeing that it is clear from the Mishna that even a שבות may not be done for the sake of the mitzva of korban pesach if it could have been performed before Yom-Tov.

Whereas Rashi’s distinction would render their query rather mute, the Tosfos suggest a different distinction, namely between a שבות performed by a Jew and one performed by his animal- only the later is permitted for the sake of a mitzva-a distinction that appears to fit less into the actual wording of the question asked to Hillel, where no mention of an animal is made.

There could be a major נפקא מינה (practical ramification) between these two distinctions:

According to Rashi, it seems to follow that ANY melacha may be performed כלאחר יד/ with a שנוי for the sake of a mitzva but no other שבות is permitted (except perhaps in the case of a שבות דשבות.)

In contrast , according to Tosfos, it seems like ANY שבות might be performed by one’s animal for the sake of a mitzva, but not even כלאחר יד is permitted by a Jew himself even for such a purpose.

Although this seems the most precise conclusion, given that the Gemara mentions “for the sake of a mitzva” in general and does not limit its version of the question asked to Hillel to the case at hand, it is also possible that both Rashi and Tosfos would limit their respective interpretations of this leniency to a mitzva of the stature of קרבן פסח, however that is defined, which sometimes pushes aside even severe biblical restrictions such the laws of shabbos, and not any other mitzva!

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.

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

Posted on January 20, 2021 by yoniisaacson

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:

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.)
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.

Pesachim 53-54 Yom-Kippur candles, good intentions, and the power of looks

Posted on January 14, 2021 by yoniisaacson

In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l, whose love of Torah, passion for justice, and acts of kindness inspire everything I do.

Towards the bottom of daf 53, the Gemara presents a debate that took place while Ullah was travelling on his donkey, accompanied by Rabbi Aba and רבה בר בר חנה.

First, some background:

The Mishna had discussed a difference in customs regarding whether to light candles for Yom-Kippur or not.

Unlike shabbos eve, where lighting candles was a universally accepted obligation, Yom Kippur eve had no such consensus in this regard, and whereas in some locations there was a practise to do so, in others, the practise was to refrain from this.

Keeping with the general requirement to follow local custom, the Mishna ruled that everyone must follow the custom of his place.

The Gemara pointed out that this was not an issue of being stringent or lenient ,as is the case in many of the customs we have discussed- rather, there was strong reasoning on both sides, both related to the same concern.

Before we attempt to explain this, we should note that various reasons are given for the rabbinical mitzva of lighting candles for shabbos, among them:

עונג שבת (to allow one to enjoy shabbos- it being rather difficult to do so in the dark- see Rambam Shabbos 5/1)
כבוד שבת (honoring shabbos- a banquet without light is not honorable – see Rashi Shabbos 25b ד”ה “חובה” and Rambam Shabbos 30/5]
שלום בית (keeping the peace at home- it being rather difficult to do so if people are constantly falling over things or bumping into one another- see Rashi, Shabbos 25b ד”ה “הדלקת נר”

Whereas all these reasons could apply, perhaps with some nuances, to Yom-Tov, Yom Kippur might indeed be different.

Whereas there is no mitzva of עונג (enjoyment) on Yom Kippur, there might certainly be a mitzva of כבוד , yet according to Rashi, the כבוד provided by the candles is achieved by making the meal more distinguished, and there is no meal on Yom-Kippur!

At first glance, it seems that given the holiness of the day, שלום בית is certainly also an applicable reason, and having people falling over things on Yom-Kippur is hardly a reason for this.

Yet שלום בית has multiple implications, and its most highlighted component sometimes seems to revolve around the physical and emotional relationship between man and wife, the former being limited on Yom-Kippur by the prohibition against תשמיש המיטה (sexual relations) and other physical contact. (See Shabbos 152a where Rabbi Shimon ben Chalafta refers to his אבר תשמיש (sexual organ) as the עושה שלום בבית (the peacemaker at home!)

It might be that the damage to this important component of שלום בית when people are bumping into each other, putting the husband and wife in a bad mood not suitable for such relations, is what makes shabbos candles on shabbos obligatory, and this consideration is lacking on Yom-Kippur.

However, the Gemara’s analysis of this debate does not seem to center on these considerations, but rather on the prohibition of sexual relations on Yom-Kippur. (though see later the view of Rabbi Shimon ben Elazar regarding lighting candles before Yom-Kippur that falls on Shabbos, for reasons of כבוד שבת!)

Rashi explains that on the one hand, if there is a candle lit on Yom-Kippur, people will be more likely to refrain from sexual relations due to the added prohibition of having such relations by the light of a candle (itself quite a statement, given that this seems to be a relatively mild prohibition compared to that of having sexual relations itself on Yom-Kippur, as well as the fact that everyone agrees that a candle is need on shabbos and this seems to present no such concern).

On the other hand, if one can see one’s wife on the night of Yom-Kippur, one is more likely to be attracted to her and tempted to transgress the more severe prohibition of actual sexual relations.

Whereas some explanation is needed for both above claims, the Gemara sees this as an example of how two communities can have opposite customs both with righteous intentions, applying the passuk “ועמך כולם צדיקים לעולם ירשו ארץ. (“and your nation are all righteous people, they will forever inherit the land!)

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Another dispute is recorded regarding whether one makes the bracha בורא מאורי האש on a candle during havdala after Yom-Kippur, or whether this bracha is reserved for motzai-shabbos.

Rav Yehuda quotes Shmuel as ruling that one does not, seeing as fire was created on motzai shabbos, and the bracha on it is thus reserved exclusively for that time.

רבה בר בר חנה is quoted as agreeing and as claiming that Rabbi Yochanan agreed!

Now, we return to the incident we opened up our post with:

Rabbi Aba asked Ullah if it was true that Rabbi Yochanan had agreed that one only makes the bracha בורא מאורי האש on motzai shabbos, and not motzai Yom-Kippur, and Ullah responded initially by giving Rabbah bar Chana a “bad look.”

He then explained that when he quoted Rabbi Yochanan, it was not regarding this law, but rather regarding Rabbi Shimon ben Elazar’s claim regarding Yom Kippur that fell on shabbos.

Rabbi Shimon ben Elazar claimed that everyone agrees that one needs to light candles on the eve of such a day, out of honor for shabbos, and Ullah had quoted Rabbi Yochanan as noting that the Chachamim did not agree, and held that it was still subject to the same debate above (note that כבוד שבת seems according to this view to be more important than כבוד כפור and to override the concern of being attracted to one’s wife- it also does not seem to be related to the shabbos meal)

רבה בר בר חנה then relented and accepted that Ullah was correct.

We should note that receiving a “bad look” from someone, particular a Torah leader, is not a simple thing, recalling how Rabbi Yochanan when angered by a student’s heresy, stared at him and turned him into a pile of bones. (see Bava Basra 75a )

Yet in this case, Rav Yosef seems to see this “bad look” in a positive light, praising Ullah for the ability to communicate his disapproval with a look rather than by verbally attacking רבה בר בר חנה, and praising רבה בר בר חנה for his ability to note such disapproval and accept it, applying a relevant passuk in משלי to both of them.

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After asking what our custom is regarding the bracha on fire in havdala, the Gemara notes that רבי בנינין בר יפת quoted Rabbi Yochanan (contrary to what was initially reported) as ruling that this bracha is made both on motzai shabbos and motzai Yom-Kippur, and that this is the way the people have spoken! (note that this ruling is later qualified with the requirement that the candle used on motzai Yom-Kippur needs to be a נר ששבת [a candle that was already lit over shabbos for permitted reasons, such as pikuach nefesh, or one that was lit before Yom-Kippur- see Rashi.])

Rashi explains that in the absence of the reason that fire was created on motzai shabbos, we require the other reason to make such a bracha, namely the fact that one is now able to use this fire for things one could not use it before (perhaps like lighting another fire with it.)

As such, we need a candle which was already burning but whose use was limited to us before Yom-Kippur ended due to the prohibition of melacha.

In conclusion, when it comes to lighting candles on erev Yom-Kippur, it seems that the usually authoritative view of Rabbi Yochanan is that it is still dependant on custom , whereas when it comes to making the bracha of בורא מאורי האש on motzai shabbos, his view is that we do so, but only with a נר ששבת.

We have also learnt two amazing lessons in positivity, the one regarding how we view opposing halachik views as both coming from a place of righteousness, and the other regarding the benefits of using non verbal communication to resolve disputes.

As usual, counter examples to both the above could be found, but we shall focus on this angle for purposes of this post.

Pesachim 50-51 When is a minhag binding?

Posted on January 11, 2021 by yoniisaacson

In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l, whose love of Torah, passion for justice, and acts of kindness inspire everything I do.

Much of modern Jewish practise involves extra-halachik customs which have developed between the time of the Gemara and now, and a thorough analysis of the scope and authority of such “minhagim” is required.

Whereas the authority of rabbinic law is based on biblical law, the authority of customs taken on by an individual, family, or community seemingly lack this strong grounding, and needs to be sourced and defined.

In the opening Mishna of chapter 4, we see that at least certain types of minhagim are grounded in rabbinic law.

The Mishna takes for granted the prohibition of performing work after midday on Pesach eve (a discussion in its own right) and discusses the custom followed in some places to forbid it even before midday, ruling that each place needs to follow its own minhag in this regard.

It then addresses an individual who comes from a place with one custom, who is currently in a place with a different custom.

Here, the ruling is that a person must keep the stringencies of his place of origin as well as those of the place he is currently in.

That means that such a person will need to avoid work on erev pesach either way, either because that is the custom of the place which he came from, or because it is the custom of the place where he currently is- both customs are binding on him.

The Mishna then adds that one should never act differently to the מנהג המקום (the custom of the place where one is ) because of מחלוקת (conflict.)

An initial analysis of this case in the Mishna reveals that

No mention is made as to whether the relocation is temporary, as in a visit, or permanent.
There seems to be an inherent contradiction between the need to keep the stringencies of both places, and the need not to act contrary to the customs of the place one is in. For example, if a person comes from a place where work is not done the whole day to a place where it is done before midday:
The first rule implies that one must refrain from work in deference to his own custom
The second rule implies that one should not refrain from work in order not to “stick out.”
The case in the Mishna refers to a stringency practiced in a certain place. In cases where an actual rabbinic prohibition applies in one place and not in another, or where one place follows a different opinion regarding the עיקר הדין (actual law) that the other, it is not clear yet whether the same principles apply.

When one examines the סיפא (last case) of the Mishna, one sees that this principle applies to a related though possibly different situation too.

This case revolves around the prohibition of eating produce of the שמיטה (sabbatical year) after that species is no longer available in the fields, before performing a procedure called בעור (removal.)

The Mishna rules that if one takes such produce from a place where it is no longer available in the fields to a place where it is still available or vice versa, he must be stringent and perform בעור, in deference to either the practise in the place from whence he came or to the practise in his current location.

In this case, it is not simply a question of one locale taking on a certain stringency and not the other.

Here, the עיקר הדין requires those in the one locale to perform בעור on that specific species, whereas there is absolutely no reason for those in the other locale to do so yet.

One can also note that if the produce comes from a place where בעור is already required, the obligation might have already fallen on the produce ( in Brisker terms חיוב הבעור כבר חל על החפצא.)

Yet despite these essential distinctions, the same principle seems to apply, something we will hopefully return to in later posts.

_______________________

At the bottom of Daf 50, the Gemara discusses a different custom.

The people of ביישן had the custom to avoid sailing from the port of צור to the port of צידון on erev shabbos, despite their proximity and the commercial need for them to be there for the market day in צידון.

This was clearly an extra stringency not required by law, and Rashi explains that this was to avoid neglecting their shabbos preparations.

The next generation approached Rabbi Yochanan asking him to let them off this stringency, seeing as unlike their fathers, they were unable to cope with it.

He answered that their fathers had already accepted this stringency, and it was binding upon them, based on the verse “שמע בני מסור אביך ואל תיטוש תורת אימך” (Mishlei 11- “Hear my son the “Mussar” of your father and do not forsake the Torah of your mother.”)

Unlike the case in the Mishna, which deals with מנהג המקום (the customs of the place,) this case seems to be an example of מנהג המשפחה (a family custom.)

Despite the above, it is not immediately clear whether this ruling applies only while they continued to live in ביישן, or whether they would still be bound by it even after moving to a different place with no such stringency.

The Gemara moves on to discuss a different custom, this time a stringency of the people of חוזאי, who used to separate חלה from rice.

When Rav Yosef was told about this, he ruled that a זר (non kohain( should deliberately eat it in front of them (to make the point that חלה taken from rice is NOT חלה!)

We are immediately faced with the question why this is different to any other מנהג המקום (local custom) which needs to be respected, as in the previous cases we have discussed.

Abaya questions Rav Yosef’s ruling based not on our Mishna or the case with Rabbi Yochanan, but on a related halachik principle.

This is the rule of “דברים המותרים ואחרים נהגו בהן אסור אי אתה רשאי להתירן בפניהם” – permitted things that others have forbidden to themselves may not be permitted by you in front of them.

As such, how could Rav Yosef permit a non-kohain to eat what the people of this town treated as חלה in front of them?

Rav Yosef responded that Rav Chisda had already ruled that the above principle only applied to כותאי (Samaritans,) who already made light of rabbinic law and who might be led to further leniency by such actions, to which Abaya retorted that these people were like כותאי – Rashi explains that this was due to their ignorance.

Due to the above, Rav Ashi qualifies Rav Yosef’s ruling to only apply to a place where most of the people eat grain products.

In such a case, the concern that allowing a non-kohain to eat the rice “חלה” In front of them would cause them to practise further unjustified leniency is mitigated by the risk that they would land up using rice as חלה for grain, a very serious action which would result in them eating טבל.

As such, this was a stringency that could lead to sin, and needed to be crushed!

However, in a place where most people ate rice and there was no such concern, one should not undermine their stringency, as it had the benefit of helping them remember the laws of challah!

At first glance, this seems to be a typical example of stringency not required by law. However, it is also possible that their “minhag” was to follow the halachik opinion of רבי יוחנן בן נורי who considered rice to be a form of grain (Pesachim 35a), which would make this an example of a custom to follow an already existing stringent halachic opinion, not just a new practise without halachic precedent.

The Gemara proceeds to bring 3 other examples of minhagim where the rule of דברים המותרים… applies, pointing out that all 3 cases involved בני מדינת הים (“overseas” people) who due to their lack of proximity to Torah centers, were also ignorant and treated like כותאי regarding this law.

It seems clear that whereas no distinction is made between ignorant and learned people in the case of our Mishna and that of בני ביישן, the rule of דברים המותרין is limited to ignorant people, suggesting that two or more very different principles regarding the source and authority of minhagim are at play here, despite the relationship between them implied by their proximity in the sugya.

____________________

The Gemara near the bottom of daf 51a brings yet another example of different customs.

This case revolves around דייתרא , a kind of fat that was treated as permitted in the land of Israel but not in Bavel.

It relates how רבה בר בר חנה came from Israel to Bavel and continued to eat this fat, in accordance with the custom of Israel.

When רב עוירה סבא and רבה בריה דרב הונא came in, he quickly covered it up, so that they should not see him eating it.

Abaya, understanding that this was due to the rule of דברים המותרים … commented to them that רבה בר בר חנה was obviously treating them like כותאי, further proof that this rule only applies to ignorant people, but also very telling us what standards Abaya believed רבה בר בר חנה applied to the definition of “ignorant” in this regard !

At this point, the Gemara finally relates to the principle of our Mishna and asks how רבה בר בר חנה could ignore the מנהג המקום and eat the דייתרא even while he was by himself.

Whereas the rule of דברים המותרים… only applies לפניהם (in front of those who are stringent,) it seems that the Gemara holds that the rule of the Mishna, namely following the stringencies of both places, applies in private as well.

Whereas Abaya answers differently, Rav Ashi answers that רבה בר בר חנה intended to return to Israel, and in the absence of the concern of דברים המותרים…, the stringencies of Bavel were not yet binding on him!

With this distinction, Rav Ashi shows how he has interpreted the rule of “being bound by the stringencies of the place one has come to” as only applying to one who has relocated permanently.

Until one has permanently relocated, one is not personally bound by the stringencies of the place one is merely visiting, but simply needs to be careful not to “permit them” in front of the locals, if they are ignorant.

It is not immediately clear what the law would be where a person from a stringent locale permanently relocates to a lenient locale .

Would Rav Ashi go so far as to extend the rule that one goes by one’s permanent place of residence even to the leniencies of one’s new place, or would he require one to keep the stringencies of one’s previous abode even after permanently resettling?

The key to this and other unresolved issues that we have raised can be found in other sugyas on the subject, and will hopefully be discussed in our next post, in relation to second day Yom-Tov.

To sum up what we have seen so far, there are various principles on which the authority of minhagim are based:

מנהג המקום (the local minhag) binds all inhabitants (the Mishna.)
One who relocates is bound by the stringencies of his old place and of his current place (the Mishna) but this rule might depend on the nature of one’s relocation (as per Rav Ashi)
One should not act contrary to local practise מפני המחלוקת (the Mishna)
A family minhag can be binding, based on the passuk in Mishlei. (the case of בני ביישן )
Even where one is not bound by local stringency, one should not be lenient in front of the locals, if they are ignorant, due to the rule of דברים המותרים .

The scope, authority, and interaction between these principles has been partly discussed already, and will hopefully continue in the next post, but it is clear that before one is able to define clear rules regarding the types of minhagim that are binding and under what circumstances they are binding, a thorough understanding of the above and any related sugyas needs to be obtained.

Not every custom is binding under all or any circumstances, but the concept of certain customs being binding is well grounded in numerous Talmudic principles.

Pesachim 32-33 Mining Data- Pesach deoderant and מתעסק revisited, and קים ליה בדרבה מיניה

Posted on December 24, 2020 by yoniisaacson

In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l, whose love of Torah, passion for justice, and acts of kindness inspire everything I do.

One of the guiding principles of these posts, as taught to me by my Rebbeim, is that while it is both impossible and disingenuous to resolve complex questions based on isolated sugyas without considering all sugyos in the shas that pertain to the relevant question (obviously the domain of senior Talmidei-Chachamim) , passing through daf of Gemara superficially without taking note of things that could impact these questions is a waste of an incredible opportunity to build one’s database, and likely a form of בטול תורה.

I would like to touch briefly one how some topics we have discussed before in our posts are enriched by these daf:

סיכה כשתיה and deodorants on Pesach:

In our post on Shabbos 86a (please refer there for background,) we discussed using non-edible substances containing chametz (such as deoderant containing wheat-based alcohol) on one’s body on Pesach.

This was based on the Mishna (Shabbos 86a) which says that regarding Yom-Kippur, the rule is that סיכה כשתיה (annointing is like drinking( and not only drinking chametz liquids but annointing with them is also forbidden (albeit as noted there, not treated as stringently.)

We discussed whether this rule applies in other areas of halacha as well, specifically chametz on Pesach, in which case although the prohibition of deriving any benefit from chametz on Pesach only applies to chametz that is fit for a dog to eat, something that is fit for annointing such as deodorant might be considered as if it is fit for drinking and thus also forbidden (please refer to that post for a more detailed analysis of this and other factors involved.)

At the bottom of Pesachim 31b, the Gemara quotes a Mishna which forms much of the discussion on Daf 32a.

This Mishna (Trumos 6/a) tells us that a זר (non kohain) who eats תרומה (the portion separated for the kohain) בשוגג (unintentionally) must compensate the kohain with the קרן (same amount of fruit) plus חומש (a fifth penalty [actually a quarter of principle, making the penalty a fifth of the total paid]) and that this applies also to one who drinks תרומה or anoints oneself with it.

Rashi (as well as the Bartenura on the Mishna) explains that although the Torah only requires this penalty of one who ate תרומה, and not one who damaged it (as the Gemara derives later on the daf,) we know from elsewhere (Yoma 76b) that סיכה כשתיה (annointing is like drinking) and for this reason, one who anoints himself unknowingly with תרומה is also liable to this penalty.

As such, we have seen at least one other area of halacha, namely the prohibition of eating תרומה, that the principle of סיכה כשתיה applies, at least according to Rashi, and also according to this Mishna itself
(see ר”ש who points out that this is based on a ת”כ ), in the absence of some other explanation.

While we can still not conclude that this is the case regarding chametz on Pesach, from this Mishna, things are starting to look more that way, though we have still not shown that the principle extends so far as to make something that is ראוי לסיכה (fit for annointing) as if it is ראוי לשתיה (fit for drinking.)

All the above is based on this Mishna and daf, but a thorough study of the sugya in Yoma and elsewhere will show that many Rishonim say that Yom-Kippur and תרומה are indeed exceptions, and discuss whether even there, the prohibition is only דרבנן, just another illustrating of the guiding principle we opened this post with.

קים ליה בדרבה מינה – the greatest of two punishments.

One of the essential principles when it comes to punishments is that if a person performs an action which involves more than one prohibition, and thus more than one punishment, he receives the more severe punishment and is exempt from the lighter one.

There are two main sources for this principle, one regarding liability to payment for damages caused by a capital transgression (אין אדם מת ומשלם – see Kesubos 36b), and one regarding liability to payment for damages caused by corporal transgressions (אין אדם לוקה ומשלם- see Makkos 13b)

There is a debate as to whether the former principle replies only to transgressions subject to death by the courts, or whether it also applies to transgressions subject to כרת , with רבי נחוניה בן הקנה holding that כרת treated like a death penalty in this respect (as recalled from daf 29a.)

The Mishna at the bottom of Pesachim 31b says that if a person eats chametz תרומה on pesach unknowingly, he pays both the principle and the fine, but if he does so intentionally, he is exempt not only from the penalty (which only applies for unknowing transgression), but also for the principle.

After much discussion regarding why this is so, the Gemara on daf 32a seems to conclude that the mishna reflects the view of רבי נחוניא בן הקנה, who holds that the rule that one who is liable to death for an action is exempt from monetary obligations that come from the same action applies also to someone liable to כרת.

Seeing as one who eats chametz on Pesach intentionally is liable to כרת, he cannot also be liable to compensate the kohain.

While certainly not the last word in the debate, a סתם משנה (anonymous Mishna with no debate) that supports this view certainly could add to its weight, unless there is a later Mishna which debates the matter (סתם ואחר כך מחלוקת), something we shall have to keep our eyes open for!

מתעסק

In various posts on the subject (see post on Shabbos 72 for background), we have discussed the rule pertaining to someone who intends to perform an action on a permitted item and lands up performing it on a forbidden one.

For example, one who intends to cut something detached from the ground on shabbos and lands up cutting something attached, or one who intends to eat permitted fats and lands up eating forbidden fats.

We saw the general rule that when it comes to shabbos, one is exempt for such actions due to requirement for מלאכת מחשבת (significant and calculated melacha), and when it comes to actions one derives pleasure for, such as forbidden fats (or forbidden sexual relations), one is liable.

There is a degree of unclarity as to what happens with prohibitions that one does not derive pleasure from but are not shabbos related, though Chazal did seem to derive a general exemption for מתעסק from the words “וחטא בה” (Kerisos 19a.)

We also saw a dispute between Rashi and Tosfos regarding what type of מתעסק one is exempt from on shabbos.

Rashi understood the exemption to pertain only to one who intends to cut one item that he knows to be detached but whose hand slips and lands up cutting a different item which was attached.

However, if he intends to cut a certain item thinking it is detached, and after successfully doing so, realized that the same item had been attached, he could be liable.

In contrast, Tosfos holds that the main discussion centers around the later case, and that in the former case, one would be exempt even if he had intended to cut an attached item but landed up cutting a different attached item!

On daf 32-33, there is much discussion about the prohibition of מעילה, deriving benefit from הקדש ( sanctified things), something we also touched on earlier (post on Pesachim 25-26) in discussing הנאה הבאה לאדם בעל כרחיה .

One of the things discussed is the source brought in a Beraisa for exempting one who performed מעילה intentionally from the required sacrifice, namely the words in the verse “וחטאה בשגגה”

The Beraisa immediately asks why a special source is required regarding מעילה, where more serious intentional transgressions for which one is liable to כרת also do not require a קרבן.

It responds that from a different perspective, מעילה is actually more serious than the other prohibitions, and there are various versions in the Gemara as to what precisely the Beraisa says and means.

Two views, those of מר בריה דרבנא and רב נחמן בר יצחק relate directly to the sugya of מתעסק and indeed portray it from a different angle.

The former claims that מעילה is stricter than other prohibitions in that one is liable even בלא מתכוין (without intention.)

For example, whereas if one intends to tear a detached item on shabbos and lands up cutting an attached item, he is exempt, if one intended to warm oneself with regular wool and landed up warming himself with wool from an animal set aside for a burnt offering, he is liable.

We note that:

As expected, both Rashi and Tosfos explain the case of מתעסק in shabbos and with מעילה consistently with their explanations elsewhere
The Gemara seems to take it as given that shabbos is only an example of the exemption but that it applies to all other prohibitions as well, other than מעילה, and Rashi actually brings both the source of מלאכת מחשבת regarding Shabbos and “וחטא בה” regarding other mitzvos, noting that there is no such מעוט (exclusion) regarding מעילה.
No mention is made here of the fact that we have seen in other sugyot on the subject that prohibitions that one derives pleasure from (presumably most prohibitions) also produce liability even for מתעסק.
Although this indeed seems to be the classic definition of מתעסק in the sugyas we have studied (at least according to Rava), The phrase מתעסק is not used by מר בריה דרבנא but rather the phrase אין מתכוין .

In contrast, רב נחמן בר יצחק explains that מעילה is stricter than other mitzvos in that one is liable for מתעסק in the case of מעילה unlike in other mitzvos where one is exempt.

He gives the example of one who intends to lift a detached item on shabbos and lands up tearing an attached item, who is exempt, as opposed to one who puts his hand into a vessel containing oil of הקדש (consecrated oil) intending simply to remove an item from it but lands up annointing his finger in the oil, who is liable.

We note that:

Unlike מר בריה דרבנא, רב נחמן בר יצחק does refer to the phrase מתעסק as opposed to אין מתכוין.
רב נחמן בר יצחק gives examples of מתעסק according to Abaya in the other sugyas we have studied, as Rashi explains, where one intends to do a permitted act (lifting) and lands up performing a forbidden act (tearing), seemingly agreeing with Abaya that in the case referred to by מר בריה דרבנא, this would be considered like regular שוגג even on shabbos and one would be liable.

The above observations could be invaluable in understanding the different views regarding howמתעסק works and how it relates to דבר שאין מתכוין and הנאה הבאה לאדם בע”כ.

Hopefully we shall have a chance to return to them soon!

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.

Pesachim 25-26 Benefit by force- הנאה הבאה לאדם בעל כרחיה

Posted on December 19, 2020 by yoniisaacson

1. Sugya synopsis

2. Semantic matters

3. פסיק רישיה and הנאה הבאה לאדן בעל כרחיה

4. הנאה as a liability

5. Entering situations of sexual temptation

Sugya Synopsis

Given that the prohibition of chametz on pesach is included in the list of איסורי הנאה (prohibitions that one is not allowed to derive any benefit from,) our perek spends considerable time discussing the scope of such prohibitions.

Whereas when it comes to most forbidden foods, the prohibition is limited to the act of eating and when it comes to shabbos and forbidden relationships, specific actions are forbidden, when it comes to this category of prohibitions, benefit itself is prohibited, and this might apply even to benefits that do not involve a specific action (לאו שאין בו נעשה) such as just smelling the fragrant aroma of incense offered for idolatrous purposes.

The central topic of the end of daf 25 and most of daf 26 is the status of הנאה הבאה לאדם בעל כרחיה, benefit which comes to a person “by force.”

Although the Gemara itself does not initially give an example of this, Rashi cites the case mentioned above of a person who walks past a place where incense is being offered for idolatrous purposes and cannot help smelling the fragrant aroma.

Abaya holds that this is permitted, whereas Rava holds that it is forbidden.

Seeing as we are dealing with benefit which is unavoidable, debating whether it is permitted or forbidden seems rather spurious, and it is thus obvious that the debate does not center around someone already in the situation, but whether one is permitted to willingly enter into a situation where one knows that this will or might happen.

Alternatively, the debate could center upon whether a person is required to immediately move away from such a situation the moment he encounters it, even if it means retracing his steps and taking an alternative or possibly longer route to avoid further benefit, or whether one may carry on and pass the area, seeing as the benefit he gets from the smell is forced upon him.

Either way, the Gemara divides the discussion up into 4 different scenarios, which depend on whether it is אפשר (possible) to avoid the benefit or not, and whether one is מתכוין (intends) to derive benefit or not.

The 4 permutations are as follows:

When it is both impossible to avoid the prohibition and one has no intention to derive benefit from it (2 factors in one’s favor)
When it is impossible to avoid the prohibition, but one has intention to derive benefit from it. (1 factor in one’s favor and 1 against)
When it is possible to avoid the prohibition, but one has no intention to derive benefit from it. (1 factor against and one fact in favor)
When it is possible to avoid the prohibition and one has intention to benefit from it. (2 factors against)

The Gemara first claims that everyone would be lenient in the first case, and stringent in the second and fourth cases- in other words, if one has intention to benefit, it is forbidden, whether it is possible to avoid the situation or not, and if one has no intention to benefit AND it is impossible to avoid the situation, they both agree that it is permitted.

The debate is solely focussed on the third case, where it is possible to avoid the situation but one does not intend to derive benefit from the prohibition, and centers around the famous view of Rabbi Shimon (see our various posts on this back in Shabbos) who holds that דבר שאין מתכוין מותר (one is permitted to perform a permitted action even if there is a significant concern that it will be accompanied by a secondary forbidden action.)

The classic example of this principle is his permission for a person to drag a bed, chair, or bench along the ground even though he might dig a ditch while doing so, as long as this is not his intention.

However, as we have seen, it is clear from various sources ( see post on Shabbos 133) that this leniency of Rabbi Shimon’s applies not only to the laws of shabbos but to all areas of halacha.

As such, Abaya argues that seeing as the act of walking to wherever one is going is a permitted action, it remains permitted even though one might transgress the prohibition of benefitting from עבודה זרה (idol-worship) along the way.

Rava, on the other hand, claims that the leniency of Rabbi Shimon is limited to cases where it is impossible to achieve one’s goal without taking the risk, for example if the above-mentioned furniture is too large or heavy to lift.

However, if it is possible to avoid the risk, such as in the case of smaller/less heavy furniture which one can lift, one is required to avoid the risk altogether.

It should be noted that this limitation to Rabbi Shimon’s leniency was suggested elsewhere (Shabbos 29b) and rejected, as it will be later in this sugya, but it is of course important to understand this הוה אמינא (initial thought) as well.

The Gemara immediately brings an איכא דאמרי (alternative version) whereby everyone (in this case both Rabbi Shimon and Rabbi Yehuda [who normally forbids דבר שאין מתכוין ] ) agrees that in the first case, where the situation is unavoidable and one has no intention to benefit, it is permitted, and that in the fourth situation where the situation is avoidable and one has intention to benefit, it is forbidden.

The third scenario where it is possible to avoid the situation, but one has no intention to benefit, is the classic dispute between Rabbi Shimon and Rabbi Yehuda.

According to this version, It is the second scenario, where it is impossible to avoid the situation but one DOES intend to benefit once one is in the situation, which is subject to debate between Abaya and Rava.

According to this version, the debate between Abaya and Rava centers not on the view of Rabbi Shimon, for whom intention is the critical factor and for whom it would thus be clearly forbidden (see Rashi) but on the view of Rabbi Yehuda who seems less concerned with intention and more concerned with whether it is possible to avoid the situation or not.

Abaya claims that just like Rabbi Yehuda makes no distinction in a case where it is possible to avoid the situation between a case when one intends to benefit and a case when one does not, forbidding דבר שאין מתכוין regardless, so also in a case where it is impossible to avoid the situation, he does not care whether one intends to derive an otherwise forbidden side benefit from it, or not, and permits it either way. If this is correct, it would follow that once a person is in an unavoidable situation in which he is forced to derive a forbidden benefit, having conscious intent to enjoy the situation might be permitted, something which seems like a tremendous novelty.

Rava, in contrast, counters that Rabbi Yehuda’s lack of concern for whether one has intention for the forbidden action or benefit or not only applies לחומרה (stringently) to forbid an otherwise permitted act if it could involve a forbidden secondary action or benefit.

However, he certainly does not disregard intention in order to be lenient and permit one to have specific intention to perform a forbidden action or derive a forbidden benefit if one is already in a situation where some benefit is “forced on him.” Although one might not be required to leave the situation, one is certainly not permitted to have intention to derive benefit from it.

After bringing various proof texts for the views of Abaya and Rava (with it being important for us to take note of which version of the debate the proofs seem to assume to be correct,) the Gemara brings a Mishna (Kil’ayim 9/5 ) which permits one to “wear” כלאים (forbidden garments which contain a mixture of wool and linen, also known as שעטנז ) in order to display it to would be non-Jewish buyers, so long as one does not intend to derive warmth or protection from it.

This is despite the fact that one could rather display it from behind, as the צנועים (more “modest” or careful people) would do.

This proves without a doubt that the view that permits דבר שאין מתכוין, namely Rabbi Shimon, permits it even when it is possible to avoid the situation and achieve one’s objective without risking the secondary forbidden action, thus disproving the first version of Rava’s opinion.

Although this case and the proof from it requires its own analysis, it follows that we would either rule like Abaya in the first version, despite the rule that we follow Rava in all but 6 disputes against him (Bava Metzia 22b) or more likely, in order to keep with this rule, that we follow the second version of Rava’s opinion.

Either way, as following the second version of Abaya’s view would unnecessarily go against this rule, this seems like an unlikely possibility.

As such, it seems to be the conclusion of the sugya that scenarios 1 and 3 are clearly permitted (at least according to Rabbi Shimon whom later Amoraim have clearly deemed authoritative )- so long as one has no intention to derive forbidden benefit, even if the situation is avoidable, there is no obligation to avoid it.

On the other hand, in cases 2 and 4, where one has intention to derive forbidden benefit, entering the situation is forbidden, irrespective of whether it is avoidable or not.

Now that we have summarized the flow of the sugya, according to Rashi and the consensus of most Rishonim, it is time to focus on some of the difficulties raised by this sugya.

Semantic Matters

As we have seen, the case of הנאה הבאה לאדם בעל כרחיה (benefit which is forced upon a person) has been divided into 4 scenarios, based on 2 critical factors, namely whether is it possible to avoid the situation and whether one intends to derive the forbidden benefit.

However, the very term בעל כרחיה (by force) seems to exclude a situation where it is possible to avoid the situation, as well as a case where one has intention to derive forbidden benefit.

If one is able to avoid the situation, how can any subsequent benefit be considered “by force?”

Similarly, if when faced with the situation, one consciously has intention to enjoy it, how can that be considered “by force?”

It seems that Rashi and most Rishonim understand that

when referring to אפשר ( the possibility to avoid the situation,) the Gemara means that it is possible to achieve the intended permitted goal (such as reaching one’s destination) by taking an alternative route

Whereas

ii. לא אפשר refers to a situation where it is impossible to achieve one’s otherwise permitted goal without taking the problematic route.

Tosfos and other Rishonim (see for example Ritva in the name of the רא”ה) add that it is also considered לא אפשר (impossible to avoid) if the alternative route or method is longer or requires more effort, time, or money.

“אפשר” , in contrast, is understand to refer to a situation where it is possible to perform one’s intended otherwise permitted task in an equally convenient way that avoids the risk.

Yet even such a case, while forbidden according to the first version of Rava’s view, seems to still be referred to by the Gemara as “by force,” seeing as if he goes on his chosen route, he is forced into encountering the forbidden benefit, an extremely broad definition of “by force” to say the least.

Furthermore, it seems according to Rashi and most other Rishonim (see for example Meiri, though see Ritva for a different view) that קא מכוין refers to one who consciously intends to enjoy the forbidden benefit, and it requires some serious analysis to understand how this could ever be considered “by force.”

One could possibly explain that once a person is forced into a situation where he cannot avoid enjoying a forbidden pleasure, then “giving in” and consciously enjoying it, while probably not permitted, is to a certain extent, still considered to be “forced.”

This could perhaps be compared to a person who is raped but at a certain point, once feeling the pleasure of physical stimulation, gives in and “enjoys it.” (obviously, the plausibility of this depends on the individual and precise circumstances, but such cases certainly seem to exist -a thorough analysis if the sugya in Yevamos 53b of אין אונס לערוה is recommended at this point.)

Whereas the victim might be obligated to try his best to mentally detach himself and avoid deriving pleasure from the physical sensation, it might be harder to condemn him for succumbing and doing so, given that the combination of being forced into the situation and biology make it close to impossible to avoid- even if he is punished for this, as in the case of אונס לערוה (Yevamos 53b,) it might still be called “by force.”- he was simply required to resist the force.

The Ran, however, simply explains that even though one intends to derive benefit, if the benefit is not intended for him (or brought about by him) but comes automatically, it is still called in this context “by force.”

As mentioned above, the Ritva goes to the opposite extreme and says that whenever a person benefits, it is considered intentional, and that לא קא מכוין refers to when the person himself does not (or perhaps believes he will not ) derive pleasure from the forbidden entity, even if many or most people would (why the phrase הנאה is used to describe someone who does not have הנאה requires explanation according to this view.)

These various explanations could have major practical ramifications, but more on that at a later stage hopefully.

פסיק רישיה and הנאה הבאה לאדם בעל כרחיה

One of the issues that bothers the Rishonim is the fact that in our sugya, it seems clear that according to Rabbi Shimon who permits דבר שאין מתכוין, there is no problem walking past a place where there is a pleasant forbidden fragrance.

Likewise, examples are given of sitting in the shade of the Temple’s walls for a derasha and lowering workers into the קדש הקדשים for maintenance even though they will derive forbidden benefit from seeing the inside.

Yet it is made clear in many places that even Rabbi Shimon forbids פסיק רישיה , a situation where the secondary forbidden action (in this case benefit) is inevitable, and it seems pretty much inevitable that a person in these situations will derive some benefit from them.

Whereas the Tosfos choose to assume that all these cases do not involve inevitable benefit (perhaps as different people react differently to certain scents and sights etc) the מהר”ם חאלאוה distinguishes between a forbidden action such as a melacha on shabbos whose completion is not affected by one’s lack of intention, and benefit, which is not considered complete when one lacks intention to benefit.

The latter’s חידוש (novel idea) seems to be that unintended pleasure is not considered complete pleasure at all, and even if such pleasure is inevitable, the stringency of פסיק רישיה does not apply to it, something which of course requires further explanation.

Of course, according to the view of the Ritva in the name of the רא”ה quoted above, the leniency of דבר שאין מתכוין only applies where a person does not derive pleasure from the problematic situation, but if he does derive pleasure, it is considered intentional, and the question does not begin.

הנאה as a stringency

We have seen in our sugya that Rabbi Shimon’s leniency of דבר שאין מתכוין מותר is extended to forbidden benefits occurred during otherwise permitted actions.

However, we have dealt before with another related leniency, namely מתעסק, where one intends to perform a permitted action and lands up doing something that is forbidden (see posts on shabbos 72 and 92 for background.)

Regarding מתעסק, we have seen that when benefit is derived from the unintended forbidden action (such as eating forbidden fats thinking that it is permitted fat or sleeping with a woman who is forbidden to him, thinking she is permitted to him,) one is still liable to bring a korban (sacrifice) for one’s actions.

We see a similar idea regarding נזיקין (damages- B.K. 19b) that although an ox is sometimes exempt from damages it does with its mouth in public property, the owner is liable up to the value of the benefit that it derived from doing so (such as the cost of the food it ate.)

It seems from the above that whenever a person (or his animal) derives pleasure from something, his lack of intent or warning is irrelevant to his liability for any transgression derived thereby.

It seems, at least on the face of it, that there must be a strong distinction between מתעסק and דבר שאין מתכוין when it comes to benefit and that the latter is conceptually so different that הנאה does not affect it at all.

Perhaps this because whereas in מתעסק, the primary action one lands up doing, albeit unintentionally, is forbidden, in the case of דבר שאין מתכוין, the primary action remains permitted and the forbidden action is merely a secondary by-product of that action- secondary benefit that is only a by-product of a permitted action might not be enough to create liability or even to forbid the permitted action in the first place.

OF course, once again, if we were to adopt the approach of the Ritva quoted above, then any benefit is treated as intentional (even though possibly still called “by force”) and there is no need for any such distinction.

Entering situations of sexual temptation for the sake of permitted activities

It follows from the conclusion of our sugya, at least according to most Rishonim, that it is permitted to enter a situation where one might derive forbidden but unintended benefit, if one needs to for some otherwise permitted purpose, even if there is an equally convenient alternative route or way of achieving that objective (אפשר ולא קא מכוין)

Yet we are told (Bava Basra 57b) that a man who intentionally walks past a place where women are washing clothes (and thus not fully covered) where another path exists to where he is going, is called a רשע (wicked person.)- Only if there is no alternative path, may he walk past and turn his eyes away.

It is not immediately clear from that sugya whether the alternative path needs to be as convenient as the problematic one or not, but If intentionally walking past a place where he will derive pleasure from the forbidden fragrance of idolatrous incense is permitted, even if there is an equally convenient alternative route, why should walking past this immodest situation even if an EQUALLY convenient alternative route exists, be not only forbidden but bad enough to be called a רשע ? (see though Rashbam on the sugya, as opposed to Rabbeinu Gershom, regarding what exactly this means.)

Once again, if we accept the Ritva’s explanation above, the question might not even begin.

Although it is indeed possible for a person to know in advance (or at least think) that he does not derive pleasure from incense, the principle of אין אפוטרופוס לעריות might teach us that it is impossible for any man to know or assume in advance that he will not derive pleasure from immodestly dressed women.

Similarly, according to the Tosfos who say that הנאה הבאה לאדם בעל כרחיה is only permitted in cases where דבר שאין מתכוין itself is permitted, namely when the benefit is not inevitable, perhaps the strength of the sexual urge is such that such benefit is inevitable.

However, according to the מהר”ם חאלאוה quoted above, who explains that benefit one is “forced into” is not subject to the stringency of פסיק רישיה, neither of these explanations hold water.

Pinning an explanation on the severe status of forbidden relations in things related to them is also not sufficient, seeing as idolatry and things related to it are treated equally strictly.

Perhaps a combination of the severity of the transgression and likelihood thereof due to its overpowering attraction sets entering a situation of sexual temptation apart and even the מהרם חאלואה would agree that the leniency of הנאה הבאה לאדם בעל כרחיה does not apply to it.

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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Category Archives: general concepts

Pesachim 93 The Status of Pesach Sheini- A Chag in its own right?

Pesachim 90-92 The אונן, Korban Pesach, and mourning laws on Purim

Pesachim 83-84 בסיס לדבר האסור בנותר and עשה דוחה לא תעשה

Pesachim 64 Relying on miracles

Pesachim 65-66 שבות במקום מצוה , קל וחומר, and גזירה שוה

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

Pesachim 53-54 Yom-Kippur candles, good intentions, and the power of looks

In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l, whose love of Torah, passion for justice, and acts of kindness inspire everything I do.

Pesachim 50-51 When is a minhag binding?

In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l, whose love of Torah, passion for justice, and acts of kindness inspire everything I do.

Pesachim 32-33 Mining Data- Pesach deoderant and מתעסק revisited, and קים ליה בדרבה מיניה

In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l, whose love of Torah, passion for justice, and acts of kindness inspire everything I do.

Pesachim 25-26 Benefit by force- הנאה הבאה לאדם בעל כרחיה

1. Sugya synopsis

2. Semantic matters

3. פסיק רישיה and הנאה הבאה לאדן בעל כרחיה

4. הנאה as a liability

5. Entering situations of sexual temptation

Sugya Synopsis

Semantic Matters

פסיק רישיה and הנאה הבאה לאדם בעל כרחיה

הנאה as a stringency

Entering situations of sexual temptation for the sake of permitted activities