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

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 81-82 Shaming people- Is it ever allowed?

The Mishna at the bottom of daf 81b tells us that if all or most of a קרבן פסח became impure, it needed to be burnt on the public fire.

The Gemara quotes רבי יוסי בר חיננא  who explains that this to embarrass those people who were not careful enough with their קרבן.

This seems a rather extreme penalty for something that is unlikely to have been done intentionally- After all, it is well known how harshly Chazal speak of shaming someone in public, to the point that it is compared to murder )B.M. 58b), and one can lose one’s עולם הבא for doing so (Avos 3/11.)

Chazal even said that a person should rather jump into a fiery furnace than shame his friend in public! )Brachos 43b)

Even though there is a biblical command to rebuke one’s neighbor when he does wrong, derived from the passukהוכח תוכיח את עמיתך  (Vayikra 19/17),  Chazal tell us, based on the continuation of the verse “ולא תשא עליו חטא”  that this must be done without embarrassing him (ספרא קדושים פרשה ב פרק ד אות ח)

The seriousness of shaming sinners is illustrated in a frightening story (B.M 59a) where Chazal describe how David haMelech was sitting and learning in the בית מדרש  after his terrible sin with בת-שבע.

People began to scorn him, asking him rhetorically what the punishment for committing adultery was.

His sharp reply should shake us all- “One who commits adultery deserves strength by strangulation but has a share in the world to come.  Yet one who embarrasses his friend in public has no share in the world to come.”

It seems from this statement of Chazal  that the prohibition of shaming someone in public applies towards one who has committed one of the worst sins intentionally, how much more so towards one who was somewhat negligent and didn’t stop his קרבן  from becoming impure , hardly a sin on the level of that discussed there.

This idea is also illustrated in the continuation of this very sugya on Pesachim 82a:

Although one is allowed to use the communal wood for publicly burning his impure קרבן פסח  when required, the Mishna brings a Beraisa which rules, amongst other things, that one who wishes to use his own wood is not permitted to do so.

There is a dispute between Rav Yosef  and Rava regarding why- Rav Yosef rules that it is in order not to embarrass those who do not have their own wood to bring, whereas Rava rules that it is in order to avoid them being suspected of stealing from the public when they take back their remaining wood.

We are dealing with people who are made to burn their impure sacrifices publicly in order to shame them, yet Rav Yoseif tells us that we don’t let them bring their own wood in order not to shame others who have been equally negligent but don’t have their own to bring!

Yet as if not to less us get carried away, the Gemara then continues to explain how the impure Kohanim were made to stand outside the הר הבית  on the Eastern sideת while their fellow kohanim offered up the קרבנות and Rav Yosef’s view here is that this is in order to embarrass them for not being extra careful to remain pure before Erev Pesach!

Perhaps one can argue that there is a difference between shaming that is an integral part of the prescribed punishment and shaming that comes in addition to it, or after one has already been punished.

An intrinsic part of many punishments prescribed by the Torah is shaming, which Chazal said (Brachos 12b) can get one pardoned for all his sins!

One of the primary results of מלקות (lashes)  is ונקלה אחיך לעניך (Your brother will be degraded in front of your eyes-Devarim 25/3)

On the other hand, the mitzva of rebuking a person is not  a punishment  and must be done without shaming.

Furthermore, even while a person is being punished, it seems that no more shame than that which is integral to the punishment as instituted may be applied.

As such, even a person who has been negligent and allowed most or all of his sacrifice to become impure may not be shamed any more than the prescribed punishment itself allows for.

At the very same time as he is shamed by having to publicly burn his sacrifice, we do not allow more shame to be inflicted upon him because someone else brings his own wood and he is unable too- such is the sensitivity required even when shaming a person is required!

Another possible explanation could be that although the Beis Din is required to do their professional job and punish people in ways that involves some humiliation, everyone else is still forbidden to shame the person any further, and certainly someone who is as guilty as him may certainly not be allowed to do things that could cause him shame.

Although this is the view of Rav Yosef, we have noted that Rava disagrees and does not appear concerned about him causing shame to his friend by bringing wood when his friend has none to bring.

Does this mean that he holds that when a person is already being shamed as part of his punishment, we do not have to be so sensitive as to avoid actions that could shame him further?

Not necessarily- it could be that Rava holds that one is not required to refrain from doing a positive act, such as using one’s own wood and sparing the public the expense, in order to avoid shaming someone who is unable to do so.

This is a very complex subject, and our analysis could have many practical ramifications, but my main intention here is only to raise some of the issues- Although in practise there might be times when one is indeed  permitted or even required to shame someone publicly to stop him from public transgressions that involve חלול ה’  or that others could learn from (see Rema 608/2 and M.B.there) , or in a teacher-student setting (see Rambam Hilchos Talmud Torah 4/5), one should only do this with correct halachik guidance and may never take a serious prohibition like this lightly in anyway.

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 74-76 Science,Torah and מחלוקת מציאות

A major theme of the beginning of פרק כיצד צולין  is the requirement that the קרבן פסח  be                  “צלי אש ולא צלי מחמת דבר אחר” (roasted by fire and not by anything else.)

This is derived from the double mention of the word “צלי אש”  in the פסוקים  (Shmos 12), which teaches us that not only must the קרבן פסח  be roasted by direct flame and not the heat of the vessel or liquid , but even things that might be considered the same as fire for other things requiring a fire  (such as a מכוה -leprous burn-which may come even from burning metal), are not considered as fire for the קרבן פסח , except for an actual flame itself.

As such, the פסח  may not be roasted with a metal spit, or through direct contact with the walls or floor of the oven, as part of the roasting process would then be performed by the heat of the metal spit or of the oven surface, and not directly by the fire.

There is much discussion regarding  the scope of these rules, during which some essential principles of אסור והתיר (contact between forbidden and permitted foods) is derived.

______________________________________

One of the most important rules pertains to how permitted items that have absorbed the taste of forbidden items may be freed of their forbidden status, namely the rule of “כבולעו כך פולטו”- in the same way that the forbidden taste is absorbed, so it is expelled.

A common application of this rule is that vessels that were used for roasting non-kosher food over a flame without liquid require לבון (direct, dry heat of a flame in order to be koshered.)

In contrast, vessels that were exposed only to hot liquids or foods cooked in liquids may generally be koshered by הדחה  (immersion in boiling water.)

______________________

Two other important rules are subject to debate.

  1. חם מקצתו חם כולו- when it comes to metal items (which conduct heat), if part of the item is hot, the entire item is viewed as hot. This is the view of the Mishna on daf 74a which forbids using a metal spit for roasting the קרבן פסח , assuming that the part of the metal spit inside the animal though less exposed to the fire is heated by the part outside it , something disputed by Rabbi Yehuda in a Beraisa brought by the Gemara on daf 74a.
  2. תתאה גבר – When a hot kosher or non-kosher item makes contact with a cold item of the opposite halachic status , do we view this stringently as hot contact, or leniently as cold contact?

It depends on whether the hot item is on top or on the bottom, but the rule is still subject to debate. רב  rules that עילאה גבר  – the item on top prevails. This means that if the item on top is hot, the contact is treated as hot contact, whereas if the item on top is cold, it is treated as cold contact.

In contrast, שמואל  holds that  תתאה גבר, the bottom item prevails- if the bottom item is hot, is is treated as hot contact whereas if the bottom item is cold, it is treated as cold contact.

The Gemara on daf 76a brings various proofs from the Mishna on daf 75b for the view of רב but they are all rejected. It then brings 2 proofs from ברייתות in support of Shmuel, seemingly given him the last word (see Rashi ד”ה “ושמואל who indeed rules this way), but clarifying that even if the cold item is on the bottom item, it is not treated exactly the same as cold contact but rather more leniently that hot contact- the kosher item is not rendered non-kosher in its entirely but the section of it that came in direct touch with the non-kosher item on top requires קליפה (peeling off)- see Tosfos ד”ה “תניא”  who discusses the situation where the kosher item is liquid and cannot be “peeled.”)

Both the above disputes share the common property that they appear at face value to be based on מציאות (factual matters) that can be easily tested.

The question of whether part of a metal spit being hot causes the rest of it to become hot is a scientific question easily answered by experimentation, as is the question of whether the top or bottom item being hot causes the two items to absorb taste from one another.

In truth, the scientific observation that hot air rises seems to indicate that if the hot item is on the bottom, it imbibes taste into the upper cold item but not the other way round, regardless of whether the permitted item is on the bottom or top, something which neither רב  nor שומאל  seem to acknowledge.

For example, if a cold kosher item is on top of a hot non-kosher item, then the taste of the hot non-kosher item should rise and be absorbed into the cold kosher item on top, as שמואל  indeed holds.

However, if a cold non-kosher item is on top of a hot kosher item, then from a scientific point of view, it seems that there is no way for the cold non-kosher item’s taste to rise and be absorbed into the hot kosher item below and besides for the area of direct contact which might require קליפה, there seems to be no reason to forbid the upper cold kosher item- yet שמואל  would indeed forbid it in this case too, seeing as the important factor to him is whether the hot item is on the bottom or not, not whether it is the kosher item or the non-kosher one!

In the world of  למדנות (lomdus or analytical learning), we generally try to avoid interpreting such disputes superficially and search for a more conceptual basis to the argument.

Additionally, although there might be some debate amongst the ראשונים  regarding how to relate to statements of Chazal that appear to be based on the possibly faulty science of their time, these both seem to be easily observable rules which are not dependant on relatively modern scientific research!

Perhaps one can suggest that the first dispute does not resolve around whether the part of the metal spit in direct contact with the animal is heated by the part of it that is exposed to the flame, but whether the degree of heating is considered sufficient for us to consider the animal as being roasted partly by the spit and not roasted in its entirety directly by the fire as required.

We see what might be a similar  distinction when it comes to the distinction of cooking in a כלי ראשון  on Shabbos  as opposed to cooking in a כלי שני.

Although the contents of the כלי שני  could be just as hot as the contents of a כלי ראשון , certainly to the point of יד סולדת בו (the min temperature that water needs to be in order for one to quickly withdraw one’s hand from it after testing it, which serves as the minimum temperature required for cooking on shabbos.), the heat of the כלי שני  is considered secondary, being derived from the contents of the כלי שני  and thus has less power to effect the cooking process.

Similarly, Rabbi Yehuda could opine that even though the entire rod is hot, the unexposed part of the rod has gained its heat from a secondary source, namely the exposed part, and this lacks the energy to effect significant halachik cooking, thus not invalidating the direct flame-roasting of the קרבן.

In contrast, the mainstream view rejects this parallel because unlike the כלי שני  whose contents might be just as hot but which itself lacks heat and thus absorbs the heating energy of the contents sparing  anything else placed inside it from the halachik cooking process, the unexposed part of the spit is constantly absorbing new heat from the exposed part, and thus far more capable of effecting halachik cooking to the קרבן, thus invalidating the direct flame roasting.

Even if this analysis passes scientific rigor, or if we accept that halachik definitions are not always the same as scientific, it seems harder to take such an approach in the second dispute.

Here the question is clearly not whether the type of heating caused by  a fixed degree of heat is halachically considered cooking or not, it is about whether the bottom item or the higher item is significant in determining the results of the contact.  This seems to be a מחלוקת מציאות by definition!

While searching the Responsa Project for Achronim who might discuss this issue, I came across a פרוש  on Pesachim by Rav Shlomo Ganzfried (פני שמואל פסחים עו.) , the famous author of קצור שולחן ערוך , who points to a תשובה (responsa) of the נודע ביהודה (קמא יו”ד כח) who asks this precise question.

While pointing out that there are many similar debates in matters of אסור והתיר  that appear to be מחלוקת מציאות that can be easily resolved by experiment, he notes that these debates where never resolved that way.

For example, אhere is famous debate (Chullin 98a) whether forbidden foods are בטל בשישים  (nullified) by 60 times the quantity of permitted foods) or only בטל במאה (nullified by 100 times the quantity.)

This too seems to be a מחלוקת מציאות  as the main issue is whether the אסור  imparts of its taste to the התיר  when the היתר  is more than 60 but less than 100 times the אסור.

The same question can be asked regarding the debate whether מליח כרותח  (salting is like boiling.)

He presents the thesis that the rules of when taste is transferred are not based on objectively proven criteria, as just because an item is able to impart taste, it does not always do so.

Chazal set certain thresh-holds based on what appeared logical to them,  that determine when we are חושש for this happening, but that does not mean that every time there is less than 60 times the אסור  taste is always imparted or vice versa.

As such, ascertaining these things is hard enough to do via experimentation that debates around them are a justified form of מחלוקת מציאות .

How the availability of modern statistical sampling methods might improve our ability not only to experiment but to assess how significant the results of the experiments are is not addressed in the נודע      ביהודה, and opens questions which are beyond the scope of this post.

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 71-73 מקלקל ומתעסק בחבורה

In the fifth Perek (Pesachim 59a,) the Mishna teaches that even once it has been set aside to be a קרבן פסח, if the lamb or goat was slaughtered with intent to use it for another קרבן, or other invalid purposes, it is פסול.

In our chapter, we have focussed a lot on the fact that the קרבן פסח  pushes aside the prohibition of מלאכה  on Shabbos, and is thus offered even on Shabbos, unlike the חגיגה  which does not push this prohibition aside and is thus not offered on shabbos.

The Mishna on 71b puts these two rules together and teaches that if someone slaughtered a קרבן פסח  for an invalid purpose on shabbos, seeing as the קרבן  is invalid and the מצוה  has not been fulfilled, he has also unknowingly desecrated שבת  and needs to bring a קרבן חטאת  (sin offering) to atone for this.

The Gemara on 72b notes that seeing as the קרבן  is invalid, the slaughter was actually an act of מקלקל (a destructive action) and the general rule is that מקלקל בשבת פטור (one is not liable for a melacha whose result is only destructive- See post on Shabbos 105-106)

There is a view,however, namely that of Rabbi Shimon  (Shabbos 106a  ) that holds that כל המקלקלין פטורים חוץ ממבעיר וחובל – one is not liable for any destructive act other than lighting a fire and injury (the later falling under the מלאכה of שוחט.

According to this view, these two melachot are exemptions to the exemption of מקלקל and it thus makes sense that slaughtering an animal in a way that renders it unfit is still a punishable act on shabbos.

However, according to the view that מקלקל בחבורה (making a wound in a destructive way) is also פטור, why should one who slaughters an animal on shabbos in a way that disqualifies it be liable- his act was purely destructive!

The Gemara  first asks this question in relation to someone who slaughtered the קרבן פסח with the intention for people other than those assigned to it to eat it.

It responds that seeing as such a קרבן  is not taken down from the מזבח if it was already put up, there is still some benefit to the slaughter, and it is not considered מקלקל.

It then asks the same question regarding the case where the animal is found to be a בעל מום (blemished) after slaughter.  In this case, even if the animal has been put on the מזבח already, it must be taken down.

The Gemara answers that the mishna is only referring to certain blemishes that Rabbi Akiva holds do not require it to be taken down once it has already been put up.

The Gemara proceeds to query the case where it was slaughtered and then found  to be a טריפה (terminally wounded animal)  in a place which could not have been seen before slaughter, and answers that there is still some benefit in that the animal can no longer become טמא like a נבילה (an animal that died without halachik slaughter.)

We see from this sugya that even according to the opinion that the exemption of מקלקל applies to the מלאכה  of שוחט\חובל , the slightest benefit achieved from the animal itself because of the slaughter prevents the action from being defined as  מקלקל , even if the action is clearly more destructive than constructive.

Whether this limitation applies only to these two exceptional מלאכות or to all cases of מקלקל requires further analysis.

________________________________________________

Tosfos notes that in addition to מקלקל, there is another reason for exemption that should apply in these cases, namely the exemption of מתעסק, which usually applies when one intends to perform an action on a permitted item and lands up performing it on a forbidden one.

One who slaughters a קרבן פסח for another purpose presumably does so because he thought that it was set aside for another purpose (though see the discussion regarding the precise case on daf 72a where this might not be so straightforward an assumption.)

Similarly, one who thinks that he is slaughtering an animal without a blemish or that is not a טריפה and later finds out that it was indeed blemished or טריפה, has also performed an action on a forbidden item thinking it was a permitted item.

He notes that although there is admittedly a view (Kerisot 19b), in connection with the case of the two babies discussed on daf 72, that just like מקלקל  is not an exemption when it comes to חובל, neither is מתעסק, a view which of course needs its own explanation, it is clear from the same sugya that according to the view that the exemption of מקלקל  does apply to חובל, it applies to מתעסק  too.

As such, it is difficult why the Gemara does not question the liability of such a person based on the exemption of מתעסק, even if it is not considered מקלקל.

We should note that this question fits the way תוספות  understands מתעסק  (see post on Shabbos 72.)

However, Rashi  holds that the exemption of מתעסק only applies where the action was applied to a DIFFERENT item than the one which he intended to apply it to, for example if his hand slips, and in  a case where he intended it to be applied to the same item but merely thought that it was a permitted item, he would be liable as שוגג seeing as נעשתה מחשבתו  (his intended action was carried out on its intended recipient.)

According to this view, the question does not even begin!

________________________

Another difficulty is the assumption that even a small benefit stops an action from being considered מקלקל even according to the opinion (Rabbi Yehuda) that exempts מקלקל בחבורה .

Virtually every destructive action could be viewed as beneficial in some far-fetched way, rendering the often-used exemption rather mute.

Yet Rabbi Yochanan (Shabbos 106a) denied that Rabbi Shimon held that מקלקל is liable when it comes to חובל ומבעיר and said that if he did indeed hold that way, it is only when there is some small benefit.

It follows that according to Rabbi Yehuda who holds that מקלקל  is exempt even when it comes to these 2 מלאכות  , he must mean that this is EVEN if there is some small benefit!

The Tosfos therefore  suggest that when our sugya refers to the view that exemptsמקלקל בחבורה  , it is not referring to Rabbi Yehuda, but rather to Rabbi Shimon according to Rabbi Yochanan’s interpretation  by which Rabbi Shimon only holds one liable for מקלקל בחבורה  if there is some small benefit.

It is possible that Rabbi Yochanan would still agree that Rabbi Shimon holds that מתעסק בחבורה is liable just like מקלקל בחבורה  is under his more limited circumstances, and that our sugya is not bothered by the מתעסק  issue.

This also allows us to conclude that Rabbi Yehuda exempts מקלקל בחבורה  even where there is some small benefit and that this certainly applies to מלאכות  other than it and הבערה!

There is much more to discuss on this issue, some of which we have done in earlier posts, and some of which I hope to revisit in later posts.

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

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!

________________________

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.

________________________________

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pesachim 57 “Their pots and pans will go to heaven”

In memory of the Av Beis Din of Cape-Town, Rabbi Desmond Maisels of blessed memory who held the fort of halachik honesty for so many decades in that beautiful city.

One of the great achievements of the past few decades in the Jewish world has been the return to observance by so many people, spear-headed by the “Baal Teshuva” movement.

Whereas 60 years ago, Orthodox Judaism was considered almost dead and buried, the most vibrant and growing Jewish communities of today are found mainly in the Torah-observant world.

This trend is highly noticeable in the plethora of kosher supermarkets, Pesach products, eruvin,  mikvaos, and Torah day school that form the heart of any Jewish neighborhood.

Although many members of these communities are also involved in a large selection of outreach and charitable organizations, there seem to be many who still do not put the same focus on the area of ethical behaviour and inter-human relations as they do in the realm of ritual.

People very often get swept up in the “frumkeit” (ritualistic piety) without even realizing how it sometimes comes at the expense of other things that the Torah values even more dearly.

We have mentioned elsewhere  that the Gemara  (Brachos 17a) cautions against a person learning lots of Torah and acting in a disdainful fashion to his parents and teachers- the stereotype of the yeshiva bachur who will no longer eat in his shul Rabbi’s home because “his hechsher” is not good enough for him.

On our daf we are told how the son of בוהין used to leave פאה  (the corner of a field left for the poor) from certain vegetables, even though they are exempt from this requirement.

When בוהין  later saw poor people collecting the פאה, he told them to rather take double the amount from other produce of his that had already been tithed.

 All though פאה  is not subject to tithing , פאה  taken on vegetables is not considered פאה  and one who eats it without separating tithes is both eating טבל  and  stealing from the Levi and Kohain.

We see how easy it is to be so stringent in one mitzva that one lands up transgressing another, something that we have referred to elsewhere as a stringency that leads to a leniency, or a full-blown transgression.

We also note that rather than be seen to be strict about maaser at the expense of the poor, בוהין was prepared to double the portion collected by the poor from his own tithed produce, at great expense to himself!

Our  daf carries on painting a disturbing picture of a period when the כהונה  (priesthood) was so corrupt that the stronger kohanim used to forcibly take the portions of the weaker ones.

We are taught how Initially the skins from the sacrifices were divided amongst the kohanim on shift, but due to the above corruption, they started rather declaring them הקדש (sanctified for the Temple.)

We see the incredible irony that these thugs were still “frum” enough that they would never think of benefitting fromהקדש , but they were happy to steal from their fellow kohanim and intimidate them.

It reminds me of the famous story of the Yeshiva student who used to store his milk in the communal fridge of the yeshiva dormitory.

He noticed that certain students had been regularly drinking his milk without permission and responded by putting a sign on the milk container that read  : “not chalav yisroel!”- the stealing immediately stopped.

My father of blessed memory would often tell how his mentor, Chief Rabbi Louis Rabinowitz zt’l once intervened in the case of a very observant man who refused to give his wife a גט  (bill of divorce.)

After various warnings, he took to the pulpit to condemn his hypocrisy, noting that due to his high level of kashrus at home , he was certain that “his pots and pans will go to heaven!”

There are people who think that it is possible to serve Hashem by treating him like a king, while treating other people like slaves.

Hashem teaches us that an essential part of his service is doing good for his creations – if our service does not make the world a better place, it is not service, but rather an abomination, a point well illustrated by countless excerpts from our prophets and sages.

There are plenty “frum” people who try to follow the ethical and interpersonal elements of the Torah as precisely as they follow the rest of the commandments.

It is those people, and their leaders,  whom we should strive to emulate.

Rav Maizels zt’l  virtually created halachik observance in Cape Town, bringing standards of public kashrus and religious observance to incredible heights for a small community at the southern tip of Africa . At the same time, he always taught  by example that it is not a mitzva to be excessively stringent at the expense of others, and that growth in one’s relationship with Hashem is directly proportional to one’s growth in one’s relationship with one’s fellow human beings.

May we all merit to continue his legacy.