Category Archives: kodshim

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

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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 69-70 The Pesach night Chagiga and the egg on the seder plate

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The Mishna on 70b tells us that the  קרבן חגיגה   (festive sacrifice) brought together with the קרבן פסח  was not subject to many of the rules that the קרבן פסח itself was subject to:

Unlike the קרבן פסח  which could only be a male goat or lamb, under two years of age, the חגיגה  could come from cattle as well, and be female or male, younger or older than two years.

Furthermore, unlike the קרבן פסח  which only had one day and one night after its slaughter to be eaten, the חגיגה  may be eaten within two days and one night.

However, unlike the קרבן פסח which was always brought, the חגיגה  was neither brought on Shabbos, nor if most of the community was impure, nor if the group associated with the קרבן פסח  was small enough to be satisfied by the קרבן פסח   itself.

The Gemara deduces from this that the author of the Mishna holds that the חגיגה  is not obligatory- After all, if it was obligatory, it should be offered on shabbos like all obligatory sacrifices with a fixed time.

We should note that the Gemara uses the language “לאו חובה היא”  (is not obligatory) to describe the special chagiga of Pesach night.

The simple meaning of this means that although it could be דאורייתא (biblical in nature,) it is a voluntary mitzva and not an obligatory one.

Yet it is not the norm for the Torah to give us voluntary mitzvot without specifically saying so, and we also do not usually  דורש טעמא דקרא (expound the verse’s reasons, a topic for another post, but see meanwhile Sanhedrin 21a ) and conclude that a mitzva in the Torah does not apply when the reason does not seem to apply.

It is thus not surprising that the Tosfos understand that the Gemara means to say that it is only  דרבנן (a rabbinical command.) and that this is why it cannot push aside the prohibition of melacha on shabbos.

________________

The Gemara proceeds to bring a Beraisa that explains that the חגיגה  is eaten first in order that the קרבן פסח  can be eaten על השובע  (while satisfied.)

Rashi understands that the reason the קרבן פסח  in turn needs to be eaten על השובע  is ” שיהו נהנין באכילתו ותיחשב להם” (so that they should get pleasure from eating it and it should be significant to them.)

He seems  to understand the phrase על השובע  not literally as “while fully satisfied” but rather as while not very hungry, or partly satisfied.

The חגיגה  thus plays the roll as a filler in order that the relatively small amount of meat that each member of a large group gets from the קרבן פסח will be eaten after one has already satisfied his hunger and be able to relax and enjoy it- after all, even though it is clearly not healthy, one who is very hungry often tends to eat quickly in order to satisfy his hunger and doesn’t take the time to enjoy his food properly.

In contrast, the Tosfos quotes the ריב”א  based on the Yerushalmi as explaining that this requirement is a גזירה דרבנן  (rabbinical decree) to prevent one from rushing to eat it in his hunger and while doing so, transgressing the prohibition of שבירת עצם (breaking a  bone of the קרבן פסח.)

Whereas it is אפשר  (possible), though not  מוכרח  (a foregone conclusion)  that Rashi views על השובע to be an intrinsic element in the mitzva of קרבן פסח, without which one might not fulfil one’s obligation, the approach brought by Tosfos clearly sees it as a side- requirement on a rabbinical level, which probably, though not certainly, would not מעכב (hold back) one’s fulfillment of the mitzva.

___________________

Back to the Beraisa quoted by our Gemara, we should note that it does not bring the requirement that the קרבן פסח  be eaten על השובע as the reason that the חגיגה is brought in the first place but only as the reason why it is eaten before the קרבן פסח – it is the Gemara that seems to goes further and take this as the reason for bringing the חגיגה , and thus the reason why the חגיגה  is not brought by small groups.

We should note that all the above applies to the special חגיגה  brought on erev Pesach and eaten on the night of Pesach, and not to the regular obligatory חגיגה  brought on the first day of Pesach and other festivals.

Whereas it is not yet clear whether  the regular חגיגה can be brought by an impure community, it seems implicit at this stage that being דאורייתא ,it is brought on shabbos, and certainly isnt dependant on the number of people eating it.

 However, on the next amud, Rav Ashi derives from a passuk that the regular chagiga is also not brought on shabbos. This seems to clash with our Gemara’s deduction from the fact that the חגיגה  brought with the פסח is not offered on Shabbos, that it is not obligatory- after all, the regular חגיגה  is certainly obligatory yet it is also not brought on shabbos!

Tosfos suggests that even if the חגיגה  brought with the פסח  is דאורייתא, it cannot be compared to the regular חגיגה which does not have a strictly fixed time and unlike it can be offered on all 7 days if missed on the first day!

As such, it  is only regarding the חגיגה  brought with the פסח that the Gemara claims a causal link between biblical level obligation and the ability to overide the prohibition of מלאכה  on shabbos!

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The Gemara continues to note the dissenting view of בן תימא who holds that the  חגיגה  that comes with the קרבן פסח  is subject to the same time restrictions that apply to the קרבן פסח , and only the regular חגיגה brought on Pesach day enjoys a  less restrictive time-period for it to be eaten.

In support for his view, the passuk “ולא ילין לבקר זבח חג הפסח”  is brought, where the word “זבח” is taken to refer to the חגיגה and “פסח”  to refer to the קרבן פסח.

The implication, as noted by Tosfos, is that בן תימא  considers the חגיגה to be דאורייתא whereas the חכמים  of the Mishna who disagree with him, consider it to be דרבנן.

After much discussion, the Gemara  also concludes that according to בן תימא, all or most of the other restrictions pertaining to the קרבן פסח also apply to that חגיגה.

Tosfos points out that later (Pesachim 71a) the Gemara brings a פסוק  to prove that the חגיגה may be eaten for 2 days and one night, unlike the קרבן פסח which clearly seems to support בן תימא  against our Mishna as saying that the חגיגה  is דאורייתא  and thus offered on shabbos as well!

He also notes that there is a view elsewhere (Chagiga ) that implies that the  חגיגה   of ערב פסח  is indeed דרבנן, and we are left with aמחלוקת תנאים  regarding whether

  1.  the חגיגה  on ערב פסח  has the same biblical status as the regular חגיגה  AND is offered on pesach as well

 OR

 whether it is simply a מצוה דרבנן  designed to ensure that the rule that the קרבן פסח  is eaten while partially satisfied is upheld AND is thus NOT offered on shabbos.

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Although we do not merit to bring either the קרבן חגיגה  or the קרבן פסח in our time, there are a number of possible practical ramifications of the above analysis, one of which I wish to bring up briefly:

The egg which is traditionally placed on the Seder plate is done so  זכר לחגיגה (see Orach Chaim 473/4 based on Tur O.C. 473 but see also other views brought, all based on Pesachim 114b.)

It seems that according to the view that חגיגה  on Pesach night is only דרבנן and not brought on shabbos , when Pesach falls on Shabbos, the egg should not be placed.

Although some Rishonim do indeed rule this way, the halachik consensus seems to be that being just a זכר  and also due to other reasons given for using the egg, we do so anywhere (see above sources for more details.)

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

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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:

  1. No woman miscarried from the smell of the sanctified meat.
  2. The sanctified meat never became rotten.
  3. A fly was never seen in the slaughterhouse.
  4. The Kohain Gadol never had a seminal emission on Yom-Kippur.
  5. The rain never extinguished the fire on the altar.
  6. The wind never prevailed over the pillar of smoke.
  7. A disqualifying property was never found in the Omer, two loaves, or show bread.
  8. People stood crowded but had plenty space to bow.
  9. A snake or scorpion never caused damage in Jerusalem.
  10. 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 67-68 טומאה הותרה בצבור , bringing sacrifices in our day, and visiting Har habayit

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One of the main (though not the only) halachik impediments to visiting the Temple Mount as well as offering up the קרבן פסח  in our day is the fact that in the absence of a פרה אדומה (red heifer), whose ashes are biblically  required for purifying a טמא מת , we generally assume that we have this status and are thus not permitted to enter or offer or eat  the קרבן פסח  and risk the severe penalty of כרת  for doing so.

It should be noted that it is clear from the discussion on daf 68 that a טמא מת is not prohibited from entering the entire הר הבית, which has the halachik status of the מחנה לויה  (Levite camp), but only from entering the area of the עזרה  (Temple courtyard) itself, which has the halachik status of the holier מחנה כהונה (Priests camp.)

This contrasts with a זב  who is forbidden to enter the מחנה לויה  and a מצורע (leper) who is forbidden to the enter the entire camp of Israel.

Although the status of זב is not applied in our time, the related albeit less severe type of impurity known as טומאת קרי (impurity due to a seminal emission) also disqualifies one from entering the מחנה לויה  and thus the entire הר הבית  but can be removed by going to Mikva according to halacha before entering.

This is the practise of those who permit visits to the parts of הר הבית  known to have been outside the עזרה  itself, while the plurality of poskim who forbid or at least caution against doing so base their view mainly on the lack of certainty as to the precise place of the עזרה  and בית המקדש itself, a topic I hope to address in the future.

I would like to focus on a different but related question, that being whether it is permitted to offer up a קרבן פסח in our times, something which might theoretically require neither a rebuilt     בית המקדש  (see Zevachim 107b) nor a פרה אדומה, as we shall see.

It goes without saying that this would be provided all other halachik issues have been resolved , such as the status of today’s kohanim, the possible requirement for a kohain gadol, the need for the special garments to be worn, etc. (for a detailed discussion on the topic, see the article by  מורי וידידי haGaon haRav Gavriel Saraf   שליט”א on https://www.kby.org/hebrew/torat-yavneh/view.asp?id=7234

It also assumes that this is physically and legally possible, without endangering lives, as however seriously this קרבן  is taken in halacha, it does not override the laws of פקוח נפש  (the question of שעת הגזירה and whether this applies to our situation is beyond the scope of our discussion.)

Having shown that the תמיד  (daily communal burnt offering) and קרבן פסח  (Passover offering) are both performed on shabbos, overriding the prohibition of melacha, the Gemara turns to another powerful property of these sacrifices, namely their ability to override the rule of טומאה  (impurity) provided that  the majority of the community is impure.

Usually speaking, a person who is טמא מת (impure due to contact with a corpse) is not permitted to bring the קרבן פסח, just like other קרבנות, and rather brings his קרבן  one month later  on פסח שני  when his טומאה  has passed.

However, the Mishna (Pesachim 76b) tells us that the קרבן פסח  may both be brought and eaten in impurity if the majority of the community is impure, and of course entering the עזרה  while impure in order to perform the offering must thus also be permitted for the kohanim.

As such, the fact that we are all assumed to be טמא מת  and unable to leave that status due to the lack of a פרה אדומה should theoretically not stand in the way of bringing a קרבן פסח  in our time!

On daf 66b,the Gemara derives via the same גזירה שוה that Hillel used regarding shabbos, that the תמיד  may also be brought under those conditions, though being an עולה, it obviously is not eaten (see Tosfos 66a ד”ה “מה” who discusses other possible sources for this.)

On daf 67a, The Gemara concludes that the source that theקרבן פסח   itself may be offered while impure if the majority of the community are impure comes from the law of פסח שני  itself.

Regarding פסח שני, the פסוק  ( Bamidbar 9/10) states “איש איש כי יהיה טמא לנפש ”  – (any man who will be impure from a life .)

From the phrase “איש איש”  , we derive that only an individual who is impure needs to put off his קרבן  till פסח שני  but if the community in whole or majority is impure, the קרבן פסח  is offered as usual on Pesach itself!

From the word לנפש, it derives that this concession applies only to טומאת מת  and not to other forms of impurity.

Although there are other forms of impurity that affect many or most of us today, the most common being טומאת קרי (impurity due to a seminal emission), these impurities can be resolved through mikva without the red heifer’s ashes and need not stand in the way of קרבן פסח.

As such, should all the other issues be resolved, neither the lack of a Beis haMikdash, nor the issue of impurity seem to stand in the way of bringing a קרבן פסח  today, and given the severe penalty for not doing so, it seems at first glance that we should obligated to do whatever we can do make this possible.

Many of us feel extremely uncomfortable with the idea of returning to what might seem like a primitive and barbaric form of worship, and there might even Torah sources that seem to back up such discomfort, a topic for another occasion.

Yet, as Moreinu haGaon Rav Asher Weiss שליט”א  once said to me over a barbecue in Africa while we were discussing this subject, its is rather hypocritical to sit eating a steak and criticize sacrificial worship- after all if one is comfortable with slaughtering an animal for one’s own pleasure, why would one be uncomfortable with doing so as part of the Torah mandated divine worship?

Of course, one could argue that whereas human beings NEED sustenance, and meat  has been viewed through most of history as an important form of sustenance, Hashem certainly does NOT need it, and there should be better ways to show our dedication to him than killing his creatures and offering them to him.

Yet it is axiomatic that Torah practices tend to be very symbolic and use methods of divine service which people can relate too-The fact that Hashem has no need for anything does not stop us from showing our appreciation of him by offering up that which is valuable to us and seeing as meat is  a major source of sustenance and pleasure for most of us, the above argument is rather mute.

When it comes to the קרבן פסח, this argument falls away completely , seeing as this unique korban is primarily about us eating it .

Almost all of us enjoy our lavish meat meals on Seder night, so why would we be opposed to first dedicating the very meat we are about to eat to Hashem?

Those people who are “religiously” vegetarian and are against killing animals at all even for food, or claim that meat is no longer needed for sustenance might indeed hold the moral high ground needed to at least start this discussion, but it seems like the rest of us should really grow up and prepare for the time when we will at least be able to fully dedicate our lust for meat to Hashem before eating it, a time which might virtually be here already, at least once a year!

יהי רצון מלפניך שיבנה בית המקדש במהרה בימינו ותן חלקינו בתורותיך ושם נעבדך ביראה כמי עולם וכשנים קדמוניות. “וערבה לה’ נמחת יהודה וירושליים כימי עולם וכשנים קדמוניות.”

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.