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.

Pesachim 55-56 Honoring a wicked father

In the previous post, we quoted how the Gemara applied the passuk  “ועמך כולם צדיקים”  (and your nation are all righteous) to 2 different communities with opposite halachik practices, so long as they both grounded in halachically sound considerations.

This passuk is also applied at an individual level (Sanhedrin 90a) where the Mishna brings it to prove that “כל ישראל יש להם חלק לעולם הבא”  (“all of Israel have a share in the world to come.”)

Yet unfortunately, neither the passuk nor the words of the Mishna are without qualifications.

The very same Mishna lists a variety of sins for which one can lose one’s portion in עולם הבא .

And on Daf 56 in our Masechta, we are told how King Chizkiyahu dragged the bones of his wicked father King Achaz on a cheap  bed made of ropes, and how the sages agreed with his actions.

The Mishna at the bottom of daf 55b tells us about 6 unusual practices of the people of Jericho, 3 of which the sages protested, and 3 of which they did not.

The Gemara opens with a Beraisa that records 6 things done by King Chizkiyahu, 3 of which the sages approved, and 3 of which they did not approve.

At face value, the only connection that stands out is the numbers of questionable practices performed and the equal split between the things that Chazal reacted negatively to and those that they were either silent  (in the case of the people of Jericho) or complementary about (in the case of Chizkiyahu.)

At a deeper level, it is possible that there many connections, and I would like to suggest one.

One of the practices of the people Jericho that Chazal did not protest was “כורכין את שמע”  (literally tying up the Shema.)

The Gemara brings various views as to what this means.  Rabbi Yehuda opines that they did not make any break between the first passuk of Shema and the first paragraph to say “ברוך שם כבוד מלכותו לעולם ועד”  as we are accustomed to do.

The Gemara proceeds to discuss the reason that we say this verse, and notes that it was the response Yaakov gave to his sons when they all confirmed their loyalty to the faith by saying the words of the Shema in front of him.

Yaakov was afraid that like his father Yitchak and Grandfather Avraham before him, not all his progeny would follow in his path, and when he was reassured by his sons that they would do so, this famous line was his response.

Unlike Yaakov, Chizkiyahu’s grandfather, the righteous king Yotam, did not have the same fortune, and his son and successor, Achaz, become one of the most wicked kings in our history (Melachim II/ 16.)

It is a sign of the greatness of King Chizkiyahu that he was able to rise above the evil legacy of his father and rebuild a Torah society (Melachim II/18), but he too shared the misfortune of his grandfather, and his own son, Menashe, become the most wicked king we ever had (Melachim II/21.)

Perhaps the people of Jericho felt that saying the passuk “ברוך שם”  was insensitive to those who despite their righteousness, did not share the same fortune as Yaakov when it came to all their offspring, and in the tragic cases of King Yotham and King Chizkiyahu, their very heirs.

Although Chazal did not agree with them and chose to focus on the ideal experience that our last forefather, Yaakov had, they did not wish to protest given the good intentions of the people of Jericho and their strong argument.

Back to the halachik subject at hand, Chizkiyahu was praised for degrading his late wicked father by dragging him on a bed made of ropes, which seems to indicate that the mitzva of honoring one’s father does not apply to a wicked man like Achaz.

Before jumping to any conclusions however, we need to examine the nature of and reasons for this action of Chizkiyahu.

Rashi offers two explanations:

  1. Rather than afford him the normal honors given to a king or wealthy person, he was given a poor mans treatment as an atonement for his terrible sins.
  2. This was done for the sake of Kiddush Hashem to show how a wicked man like that was disgraced and encourage other wicked people to mend their evil ways.

According to the first explanation, the actions of Chizkiyahu were for the benefit of his wicked father and helped him achieve atonement.  As such, it is possible that this was not a case of the mitzva of כבוד אב ואם    not applying to a wicked father, but rather of it being the best thing for his honor in the long term, similar perhaps to giving one’s father a curative injection.

According to the second explanation, this was not done for the long-term benefit of Achaz’s soul, but rather for the sake of the Mitzva of Kiddush Hashem.

Here again, there is no need to conclude that the mitzva of honoring parents does not apply at all to a wicked parent, but rather that the mitzva of Kiddush Hashem simply takes priority. It could well be that in a private setting, Chizkiyahu might have still shown honor to his father, and that a wicked person who did not have the same public status and power that King Achaz has, would still be entitled to a degree of כבוד.

Another difference between the two explanations in Rashi could possibly relate to the nature of Chizkiyahu’s actions:

According to the first explanation, Chizkiyahu did not necessarily degrade his father, but simply withheld honor from him.

According to the second explanation, however, Chizkiyahu intended to degrade him as a message to other wicked people, and Rashi highlights this by use of the word “שיתגנה”.

Whereas the second explanation seems to indicate that actively degrading one’s wicked father is permitted, the first merely indicates that withholding honor is acceptable.

We should also note that either way we learn this, Achaz was no longer alive at the time, and although there is a mitzva to honor parents after death as well (Kiddushin 31b) , it would be pushing things to attempt to prove anything from this case regarding honoring a wicked parent who is still alive.

Further, defining someone as wicked is a complex task, which most people are not even qualified to do, and comparing anyone to a totally wicked king like Achaz who not only sinned in the most awful ways but corrupted his people in those same ways is most of the time completely off the mark.

There are other important sugyas that are relevant to this topic (see for example Sanhedrin 85b and compare with Yevamos 22b), which ultimately lead to a significant halachik debate on this matter  (see Y.D. 240/18), but as is our way in these posts, we shall focus for now on what we can get from this daf and look forward to carrying on the discussion as the relevant sugyos come up!

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

 

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

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

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

First, some background:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

__________________________________________

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pesachim 42-45 Mixtures with chametz and which products require kosher certification

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

In earlier days, we did not have the level and scope of kosher supervision which is virtually taken for granted.  Meat products were always purchased from reliable sources, and there were various decrees made requiring milk, cheese, and bread to be produced by or in the presence of Jews but many other products were purchased from regular suppliers and assumed to be kosher by default.

With the advent of the industrial age and the listing of ingredients on products, it was not uncommon to rely on these ingredients lists to accept products as kosher, and it is only in recent decades that a hechser can be found for virtually every type of product imaginable, including some, such as bottled water, which certainly do not require one.

In order to make an educated decision as to which kinds of products required certification, which can be assumed by default to be kosher, and which can be treated as kosher based on ingredients, it is essential to have a broad and deep knowledge of all the halachik principles and laws pertaining to mixtures of kosher and non-kosher substances, AND ALSO  of the facts on the ground in each locale where products are produced and stored.

I do not profess to have this level of knowledge, and thus defer to experts in these matters, but as is our mandate, would like to at least highlight some of the issues from our dapim that relate to mixtures containing chametz on Pesach as well as mixtures that might contain non-kosher ingredients throughout the year.

One argument made by some people (often layman but also what appears to be a small minority of Bnei-Torah) who do not require certification for many shelf-items that contain mostly visible kosher ingredients is that any non-kosher ingredients do not form a significant part of the makeup and are thus בטל  (nullified) by the majority of kosher ingredients or even בשישים  (in sixty times.)

Others might not go this far but are happy to simply read the ingredients and make decisions based on what is listed. They sometimes argue that even if ingredient lists are not completely accurate and the government allows small quantities of certain ingredients to be excluded from these lists, such amounts are clearly negligible and the rule of בטול  applies, not only by majority, but even by 60 times!

Yet as we shall see, while there might be some merits to the arguments which allows one to rely on ingredients, assuming one is in fact familiar with each ingredient and what it is derived from (enzymes, flavorings, colorings spring to mind here,) this is also not quite so simple for various reasons, some of which I hope to address today.

The opening dapim of this chapter contain some of the most important principles pertaining to kashrut in general, and chametz in particular, namely the rules regarding the halachik treatment of mixtures containing both permitted and forbidden foods.

When a mixture contains both chametz and non-chametz material, for example, it is important to determine whether the mixture is defined based on its forbidden (chametz) ingredients or based on its permitted ingredients (non-chametz.)

One of the rules used to define the status of such a mixture is the biblical rule of בטול ברוב – a minority of either permitted or forbidden ingredients is nullified by the majority with opposite status, and the mixture takes on the status of its majority ingredients.

However, there are times, either on a biblical or rabbinical level, where even a minority of forbidden ingredients can impart its forbidden status to the entire mixture, and though this can apply in all areas of halacha, chametz on Pesach in one of the areas where we are most stringent in this regard.

The opening Mishna of the chapter lists various things that while forbidden and punishable on Pesach, are not subject to the extremely severe penalty of כרת .

Though there is some dispute amongst the Rishonim as to whether the Mishna is referring to a prohibition against eating these things, or even against owning them, it seems to be agreed upon that the things listed therein can be divided into 2 categories:

  1. תערובת חמץ  גמור –   a mixture containing fully fledged chametz
  2. חמץ נוקשה  – substances that have only partially fermented and are not fit for normal eating, but rather only for eating in an emergency.

The Bertenura explicitly states that the first 4 fit into the former category whereas the last 3 fit into the later category, and this grouping could be hinted at by the Gemara itself, which refers to “4 states” and “3 professions,” as well as later on daf 43.

For our purposes, I wish to focus on the first category, and the 4 examples given by the Mishna:

  1. כותח הבבלי  (Babylonian ‘kutach’ [roughly translated as dip])- the Gemara notes that this contains 3 unhealthy ingredients, namely נסיוני דחלבא  (the fatty milky residue left over from cheese making), מילחא (salt – according to Rashi specifically מלח סדומית), and קומניצא דאומא  (moldy bread)
  2. שכר המדי  (Median beer)- the Gemara notes that this contains barley water (what else it contains is not mentioned explicitly )
  3. חומץ האדומי  (Edomite vinegar)- the Gemara identifies this as wine vinegar that barley was added to in order to assist the fermentation process.
  4. זיתום המצרי  (Egyptian ‘zeytun’)- The Gemara says that this consists of one third barley, one third קורטמי  (a kind of herb used among other things to treat impotence-see Gittin 70a), and one third salt.

In all 4 cases, it appears that there is a significant minority of ingredients that contain chametz, and despite the usual rule of following the majority, the Gemara derives from כל מחמצת  (“any leaven”) that one is forbidden to eat even such mixtures.

The Gemara also notes that this stringency is not universally accepted but is the view of Rabbi Meir and/or Rabbi Eliezer (see debate between Rav Yehuda and Rav Nachman in this regard on daf 43a)- the Chachamim hold that at least on a biblical level, there is no such prohibition for such mixtures!

There are various possibilities regarding when and why this stringency would apply:

  1. The moment a kezayis of the mixture is eaten בכדי אכילת פרס  (In the time it takes to eat a loaf of bread- the usual period used for measuring a  kezayis)  , seeing as we view the entire mixture as chametz.
  2. Only if one eats a kezayis of the actual chametz contained within the mixture during the above period.
  3. If the entire mixture contains the taste of the chametz, and a kezayis of the mixture is eaten within the above period

The above are all discussed on the daf in the context of the principles of התר מצטרף לאסור  and  טעם כעיקר, an understanding of which is vital for any student of הלכות תערובות .

The first principle, subject to debate, is that when it comes to certain prohibitions, when  ) אסור a prohibited substance) is eaten together with התיר  (a permitted substance), the permitted substance joins together with the prohibited one to make up the kezayis for which one is liable.

It is thus possible to eat less than a kezayis of the actual אסור   and still be liable.

The second principle tells us that if a permitted substance contains the taste of a forbidden substance (such as water in which grapes were soaked, for a nazir), even if there is an insignificant amount of the original forbidden substance in it, the entire substance is viewed as אסור.  

Hopefully, we shall have more time to discuss these in the future- due to time limitations, I have been forced to be brief of late, yet one can immediately see that it is important to be very sure what ingredients are contained in products that one buys and that sometimes even miniscule amounts of non-kosher substances can render the entire product non-kosher, in the case that they give taste to the mixture, and as we shall hopefully see in future discussions, under various other circumstances too.

As such, it seems clear that when it comes to relying on ingredients alone, even in a place where kosher certified products are not available, the layman should not make these decisions himself, but should seek guidance from the kind of experts mentioned above, who is well versed both in the theoretical and practical matters required to make such decisions.

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 37-38 Must the matza you eat on seder night belong to you?

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

There is a well-known dispute between Rabbi Akiva and Chachamim regarding מעשר שני  (the second tithe that is supposed to be eaten in Jerusalem.)

Rabbi Akiva holds that this tithe is ממון גבוה  (the property of Hashem, so to speak) which the owners have the right to eat under certain conditions.

The Chachamim hold, in contrast, that it is ממון בעלים, the property of the owners, albeit with certain restrictions that apply to where it may be eaten.

At the bottom of daf 37b, Rav Asi lists 3 ramifications of this debate:

  1. A loaf of maaser sheini –  according to Rabbi Meir, חלה  need not be separated, whereas according to Chachamim, it must be.
  2. Matza of maaser sheini- according to Rabbi Meir, one may not fulfil one’s obligation with it on pesach night, whereas according to the Chachamim, one may.
  3. An esrog of maaser sheini- according to Rabbi Meir, one may not fulfil one’s obligation on the first day of sukkot with it, whereas according to Chachamim, one may.

The implication of Rav Asi’s words are that both Rabbi Meir and Chachamim agree that one needs to own the matza one uses on pesach night, just like with esrog and the dough which challah is separated from, the only debate is to whether a person is the owner of his maaser sheini or not.

Rav Papa immediately questions this ruling :

When it comes to the obligation of  separating challah, the passuk specifically refers to “עריסותיכם”  (your loaves), and regarding estrog (and the other 4 species) it specifically says “ולקחתם לכם”  (and you shall take for yourselves)- yet we do not see any such requirement regarding מצה!

Rava answers that we learnt his requirement from a   גזירה שוה  (comparison based on similar usage of language.)

Both מצה  and the dough which requires challah to be taken are referred to as  “לחם”  (bread) and both thus have to belong to the person.

Given that this is derived from one of the 13 principles used to interpret the Torah, it would seem that this is a biblical requirement without which one might not fulfil his obligation.

The Gemara then brings a beraisa to support the ruling of Rav Asi:

This beraisa says explicitly that maaser sheini is exempt from challah according to Rabbi Meir and liable to challah according to Chachamim.

The wording of the beraisa is so similar to Rav Asi’s first law that the Gemara wonders what is being taught by this.

It answers that the Amora meant to bring this beraisa as a support for ALL 3 rulings of Rav Asi- This is not a foregone conclusion for  we might have thought that Rav Asi’s נפקא מינה (practical ramification) was limited to challah where the word “עריסותיכם” is mentioned twice , but that when it comes to matza and esrog, even Rabbi Meir would agree that one can use maaser sheini, despite the גזירה שוה  and word “לכם”.

The obvious difficulty with this suggestion is that it does not seem to make sense ממה נפשך (whatever you say.)

If maaser sheini is ממון בעלים, then it  belongs to the owner of the produce and all 3 should be valid.

If on the other hand it is ממון גבוה, it does NOT belong to him and the fact that the requirement for ownership is mentioned once and not twice doesn’t change that!

Anticipating this issue, Rashi explains that we might have thought that the single mention of the requirement for ownership is coming to exclude a stolen or borrowed item, not מעשר שני  which one is at least permitted to eat , and that only in the case of challah (and possibly מצה  via ג”ש  but this is another subtlety in the text that requires study) where it is mentioned twice, is מעשר שני  also excluded.

The essence of Rashi’s explanation is that there are two different levels of lack of ownership:

  1. In the case of something that one has stolen or borrowed, one is not permitted to eat the item but must return it (one who is שואל  (borrows) an item is permitted to make use of it as is but not to eat or destroy it.) 

It is thus considered completely detached from him ownership-wise .

  1. In the case of מעשר שני , even Rabbi Meir agrees that although it is not one’s property, one is permitted to eat it. This gives a person a certain level of ownership in it, which we might have thought would be enough for the mitzva of esrog (and possible matza.)

The fact that the Gemara brought the Beraisa as a proof for all 3 rulings of Rav Asi, however, shows that there it holds that there is no distinction in practise, and that all 3 mitzvos require full ownership. (see in contrast Sukkah 35a where Rabbi Chiya bar Aba indeed holds that permission to eat the esrog is enough to make it fit for the mitzva!)

If we have read the sugya correctly, it seems to follow that just like the esrog has to belong to the person using it for the mitzva on the first day of sukkos, so also the matza has to belong to the person eating it for the mitzva on the first night of Pesach!

Not only would stolen matza not do the trick, but neither would borrowed matza!

This could have various ramifications:

  1. If many people put their matza in the same oven to bake, it would be necessary to ensure that everyone gets his own matza back, or at least make some form of valid transaction among one another that transfers ownership of each matza to whomever gets it back from the oven.  We have indeed seen a similar idea regarding lulavim left in shul over shabbos. (Sukkah  42b)
  2. If one borrows matza from one’s neighbor, one might need to take full ownership of it before using it for the mitzva.
  3. If one eats at someone’s else’s home and eats from HIS matzos, one might need to ensure that the owner legally (either implicitly or explicitly ) gives the matza to him as a gift before eating it, something that does not appear to be widespread practise.

The Tosfos seem to take the requirement for matza to belong to the eater seriously enough that they ask why the Gemara earlier brought other reasons for invalidating מצה של טבל  (matza that has not been tithed.)- it should be unsuitable simply because it does not fully belong to the eater! (see Tosfos on 38a for the two different answers he gives.)

Yet the Rambam (Chametz uMatza 6/  7 ),  while ruling that stolen matza may not be used,  groups it together with other things that one is not permitted to eat, such as טבל  and  מעשר ראשון from which תרומת מעשר  has not been separated.

He rules that anything which one does not say ברכת המזון ( grace after meals) for due to the act of eating it having been a sin, may not be used for matza, but that anything on which one does say it may indeed be used.  

It seems clear that the Rambam is only concerned about the aveira aspect and not the lack of ownership.

This reason is also backed by the Yerushalmi  (quoted by the Rosh and others) that specifically brings this reason.

Consistent with the above, the Rambam also allows one to use maaser sheini for matza, despite the fact he rules like Rabbi Meir that maaser sheini is ממון גבוה ! (Maaser Sheini 3/24)

The simple explanation of this Rambam seems to be that he does not rule like Rav Asi who requires the matza to belong to the eater, but followers the Yerushalmi that simply requires it to be something that one is halachically permitted to eat, due to the concern of מצוה הבאה בעבירה.

As normal practise is to follow the Bavli in a dispute with the Yerushalmi, this is unusual, but not entirely unprecedented for the Rambam, and in this case, it could be because Rav Asi’s ruling is subject to dispute by Rabbi Chiya bar Aba in the parallel sugya (Sukkah 35a.)

As such, the Rambam might hold that so longer as the person eating matza has permission from the owner to do so, and no sin is being committed by so doing, he fulfills his obligation, irrespective of whether he has full ownership of it or not.

In the case of the multiple people who put their matza in the oven and receive different matzos back, the fact that people implicitly give permission to others to eat their matza in exchange for them reciprocating might be sufficient according to the Rambam to remove any concern of מצוה הבאה בעבירה  even if ownership itself is not transferred, and the same would apply to borrowed matza.

On the other hand, according to Tosfot and other Rishonim who seem to see Rav Asi’s ruling as authoritative (see מהר”ם חלואה  who specifically rules this way regarding someone else’s matza) it seems that explicitly having in mind to transfer ownership might be required.

When it comes to eating matza given out by one’s host, it is necessary to determine what the halachik status of the host’s action is:

  1. He could be giving it as a complete gift to the guest
  2. He could simply be giving permission to the guest to eat HIS food without giving him ownership over it. This certainly seems to be the situation at a simcha buffet where one is permitted to eat whatever one wishes but may not take anything home with him, even once put on his plate.

If the former is correct, one would have to deal with the prohibition against acquiring things on   shabbos or Yom-Tov, but if a solution were found for this issue, one would fulfill one’s obligation according to all opinions.

However, if the second option his correct, then whereas according to the Rambam, permission to eat the matza might indeed be enough, according to the opinions that require complete ownership, one would need to ensure that he acquires the matza legally, assuming this is in fact possible on Yom-Tov.

When it comes to matza which one has borrowed from a neighbor, it seems that just like one may not use a borrowed esrog or lulav for the mitzva on sukkos, one may not used borrowed matza for the mitzva on pesach either.

However, the consensus of the poskim (Taz O.C. 454/4 , Mishna Berura 454/16) seems to be to follow the reasoning of the Ritva (Sukkah 35a)  who claims that borrowing matza is intrinsically different to borrowing an esrog.

When one borrows a consumable item like matza, the lender knows that the borrower is going to eat it and will not be returning the very same piece of matza that he received.

This  gives the transaction the status of a הלואה  (monetary loan,) where we apply the rule of מלוה להוצאה נתנה (a loan Is given to be spent.)

Unlike when one borrows an item for use and eventual return, borrowed money (or in this case food) automatically became the property of the  לוה (borrower) and a debt is created whereby the borrower owes the lender the equivalent amount.

In short, while there is reasoning to allow one to fulfill one’s obligation with one host’s matza, given that we are dealing with a biblical obligation, one would do well to consider all the above issues and it might indeed be preferable to bring one’s own matza with or make a valid transaction on the matza one is going to eat before Yom-Tov.

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 35- Rice and other kitniyos on Pesach

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

There are many topics that I would have loved to address on this daf, including the issues of קטניות  on Pesach,  of מצה עשירה  (matza made with eggs or fruit-juice), and the general halachik principle of אין אסור חל על אסור (one prohibition does not fall on top of another.)

However, due to time constraints, I have settled on a preliminary analysis of the former, namely the basis for the Ashkenazi custom to avoid eating species that are similar to grains on Pesach, known as קטניות .

The Mishna lists different species that can be used for making matza, namely the 5 grains: wheat, barley, rye, oats, and spelt. (I have given the generally accepted translations though the Gemara and mefarshim of course do spend some time discussing their precise identity.)

The Gemara infers from this that אורז ודוחן   (according to many views, rice and millet), may not be used for matza, and explains that this is because the mitzva of eating matza is compared to the prohibition of eating chametz, and thus only species that can become chametz can be made into matza.

Seeing as אורז ודוחן  cannot become chametz, but rather rot when left to ferment, they may thus not be used for matza.

The Gemara notes that the Mishna’s view is clearly against that of Rabbi Yochanan ben Nuri who holds that אורז ודוחן  are considered a form of grain and one is liable to כרת  for eating them in their chametz form.

The Gemara’s source for this view of Rabbi Yochanan ben Nuri is a Beraisa that reports forbidding these two species because they are קרוב להחמיץ   (close to becoming chametz.)

The Gemara was unsure whether he means that they become real chametz very quickly, or that they become close to chametz but not real chametz, in other words, become chametz on a rabbinical level.

It clarifies that he meant that it becomes real chametz on a biblical level, quickly, based on another Beraisa where he is quoted as saying that one who eats it in its chametz state is liable to כרת  – obviously, one would not be liable to כרת  for a rabbinical prohibition.

We are left with a clear debate between the chachamim and Rabbi Yochanan ben Nuri regarding whether אורז ודוחן  can become chametz on a biblical level or not and, based on that, whether they may be used for matza or not.

As it is somewhat improbable that they would be debating the existence of a physical phenomena (מחלוקת מציאות ), something which is easily assessed by observation , it is more likely that they are debating what the very definition of chametz is, something which requires further analysis.

Given that there is a סתם משנה  (anonymous Mishna containing no debate) against Rabbi Yochanan ben Nuri, it seems likely at this point that the halacha will rule against him in any case, and that אורז ודוחן  neither become chametz (at least on a biblical level) nor may be used for matza.

Several observations and clarifications are required,   among them:

  1. From the fact that the Gemara even entertained the possibility that these two species would be suitable for matza, if not for the comparison in the passuk, there must some significant property that they share with the 5 grains which would make them suitable in theory for matza. After all, there is no need to prove that matza may not be made from carrots or cucumbers. The existence of such a property is even more evident from the fact that Rabbi Yochanan ben Nuri considers them to be fully fledged grains.
  2. Though I have intentionally avoided doing so till now, we need to identify precisely which species אורז ודוחן  refer to.
  3. We need to verify whether the two categories mentioned in the Mishna and Gemara, namely
  4. the 5 grains which may be used for matza and are subject to the prohibition of chametz
  5. אורז ודוחן  which may not be used for matza and are not subjection to the prohibition of chametz

are exhaustive, or whether there are other species that fit into them as well, due to their sharing common properties, after all, אין לומדין מן הכללות  (we do not rely entirely on rules of psak-see post on Eruvin 26.)

  1. We need to ascertain whether according to Chachamim, אורז ודוחן  are not subject to the prohibition of chametz at all, or whether they might still be subject to rabbinical prohibition, due to whatever common property we have identified that they share with the 5 grains.

IF

  1. the property that we are searching for serves as a common denominator between the 5 grains and kitniyos
  2. אורז ודוחן are indeed kitniyos
  3. The above species are only examples of kitniyos, but the same law applies to all members of this class.
  4. We can show that the Chachamim agree that this class are still subject to a rabbinical prohibition

THEN we will have discovered Talmudic grounds for the Ashkenazi custom to avoid kitniyos on Pesach, at least once there is reason to suspect they have become “chametz” on a rabbinical level (חמץ נוקשה).

In the absence of any of the above, it would appear that this custom has no Talmudic precedent from this sugya.

Furthermore, should we conclude

  1. that the Chachamim hold that  there is not even a rabbinical  prohibition

AND

  1.   point ii above  is correct, and אורז ודוחן  are indeed קטניות, it would actually run contrary to the explicit conclusion of the Talmud.

One who takes the time to investigate the various Rishonim on this sugya, as well as the parallel sugya and Rishonim on it (Brachos 37a), will see that there is much discussion and debate regarding all the above, and that this sugya plays more of a role than many would think not only in the lenient custom of the Sephardim, but also the stringent one of the Ashkenazim, though the trend in the classical sources certainly seems to provide more support for the permissive view.

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

 

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

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

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

סיכה כשתיה   and deodorants on Pesach:

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

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

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

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

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

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

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

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

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

קים ליה בדרבה מינה  – the greatest of two punishments.

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

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

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

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

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

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

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

מתעסק

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We note that:

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

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

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

We note that:

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

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

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

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

Pesachim 9-10 Chazaka, Rov, and other great rules of psak by roller-coaster ride

There are some dapim that flow from one to the other remaining focussed on one theme or sugya, bringing proof and counterproof for possible answers to a certain question regarding this theme.

There are other daf that seem to have much of shas contained in them, microcosms of many different albeit often interrelated principles and rules.

These daf are extreme examples of the “mini-shas” style daf, moving  roller-coast style from one global principle to the next, making all but the most experienced students of Talmud gasp for breath.

Examining all of them in detail could take years but let us have a brief look at some of them and how they relate to the central theme of the perek, namely getting rid of chametz before Pesach.

The Mishna on Daf 9 rules that there is no need to be concerned that a weasel has taken chametz into a house that one has already checked for chametz from one that has not been checked, or from one place to another.

Once one has checked it, one may assume that it remains chametz free.

The Mishna adds that if one would have to be concerned about this, there would be no end to the matter (אין לדבר סוף) , and even a complete chametz-free city would not be immune from the concern that chometz was brought in from a neighboring settlement.

This kicks off a discussion in the Gemara which involves some of the most important rules and concepts in all of Shas and  halacha, among them

  1. חזקה מעיקרא – we assume an item retains the status it had when we last saw it unless we have significant reason (רעותא)  to believe its status has changed.

This rule is derived (Chullin 10b) from the case of the בית המנוגע (leprous house.)

In the case of our Mishna, we assume that a house that has been checked remains free of chametz unless we have strong reason to assume otherwise. In fact, this is such an established principle that we need to understand what theחדוש  of the Mishna is and why we need the idea of אין לדבר סוף  to explain it.

  • כל דפריש מרובא כפריש – we assume that any item that has left its place of origin, and whose place of origin is subject to doubt, has the status of the majority of places it could have left. This is an extension of the general rule of זיל בתר רובא (following the majority,)  derived from the verse “אחרי רבים להטות”  (see Chullin 11a)

In our sugya, if crumbs became separated from one of 10 piles, 9 being matza and 1 being chametz, and is then dragged by a weasel into a room, we follow the majority and assume it was chametz that was dragged in.

  • כל הקבוע כמחצה על מחצה דמי – so long as the item in point 2 above is in its place of origin (or by extension, if we observed it leaving its place of origin,) the rule of majority does not apply, and in case of doubt as to the status of the place of origin, it is regarded as 50/50 and the rules of ספק  (doubt) apply (presumably in biblical matters be stringent and in rabbinical matters be lenient, but perhaps not as simple as all that.)

This rule is extremely complex and hard to define precisely.

In our case, if one sees a weasel dragging crumbs from one of 10 piles into a checked house, 9 being matza and 1 being chametz, and one is not sure about the status of the pile it was taken from, we do not follow the majority, and must check again out of doubt.

(the assumption here seems to be that בדיקת חמץ  is  דאורייתא , possibly in the absence of בטול  ועיין תוס’ ד”ה “היינו” )

  • אין ספק מוציא מדי ודאי – a doubt may not remove a certainty.  If an item has a certain status and there is a chance that that status may have been removed, that chance is not sufficient to remove that status.

In our case, if one sees a weasel dragging chametz into an already checked house, one may not assume that it ate it all, and needs to recheck.

  • שאני אומר – There are two boxes, one containing something permitted and one containing something forbidden, and there are also 2 items, one of the same status as the contents of the permitted box and one of the same status as the contents of the forbidden box.

Each item falls into one box, and we are not sure which item fell into which box.

We sometimes assume that the permitted item (for example Chullin)  fell into the box with permitted contents (Chullin) and that the forbidden item (for example Teruma) fell into the box with the forbidden contents (Teruma) thus preserving the permitted status of the box with the permitted contents.  The Gemara limits this rule to rabbinic prohibitions, possibly due to the general rule of ספק דרבנן לקולא .

It is interesting to note in this context that Rashi points out, possibly based on this sugya, that Teruma in our time is rabbinical in nature

Regarding chametz, the Gemara suggests that this rule applies in a case where there are 2 boxes, one of chametz and one of matza, and two houses, one that has been checked, and one that has not been checked.

One mouse takes something from the chametz box and drags it into one of the houses, and  another mouse takes something from the matza box and drags it into the house.

We are not sure which house each mouse went into.

By this rule, we can assume that the mouse with the chametz went into the checked house and the mouse without the chametz went into the unchecked house.

  • חזקת הטבע (assumptions regarding human nature)- for example, on our daf, produce left by a deceased Torah scholar can be assumed to have been tithed, as there is a חזקה  that a Talmid Chacham does not allow untithed produce to leave his hands (חזקה אין חבר מוציא מידו דבר שאינו מתוקן). This makes it a case of ודאי וודאי  and not comparable to the case regarding chametz we brought where we say אין ספק מוציא מידי ודאי.
  • הערמה  (legal fiction)- there are times when a person may you a legal loophole to permit something that would not normally be permitted.

For example, one our daf, one is permitted to intentionally bring one’s produce “through the back door”  [דרך גגות חצירות וקרפפות]  in order to exempt them from מעשר. This would make a case of produce bought from a Talmid Chacham ספק וספק  even in the absence of חזקה  mentioned in point 6.

All that and so much more to analyze in one or 2 daf and we have barely touched the Rishonim!- this is one of those times when the pace of daf yomi starts to get seriously frustrating!

How I yearn for the Yeshiva days….

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.