Thursday, February 27, 2014

Ki Siis: Lo Sishchat Al Chametz

This is in honor of the one person that actually reads this blog and gives me his comments.

On Parshas Ki Sisa I spoke about the issur of "lo sishchat al chametz dam zivchi", you are not allowed to shechet the Korbon Pesach while owning chametz. There are 2 pesukim for this, one in Ki Sisa and one in Mishpatim.

The achronim have the following chakirah. Is this a halacha in korbon Pesach or a halacha in hilchos chametz. In other words do we say that one of the requirements of korbon Pesach is that you can't own chametz while shechting the korbon. Or do we say that part of the mitzvah of getting rid of your chametz includes getting rid of it during the time the korbon can be shechted.

The Ramban in Mishpatim seems to hold like the first tzad. The Chinuch (Mitzvah 89) sounds like the second tzad. Rashi in Pesachim 63a also sounds like the second tzad.


A few nafka mina:


1) Who is oveir on the issur-the shochet and zoreik or even a person in the chaburah who owns the chometz evn if he is not shechting. Tosafos (Pesachim 63) and thee Ramban both say only the shochet is chayav. This is like the first tzad that it is a din in bringing the korbon. The Rambam and others say the person in  the chaburah who has are chametz is chayav. This is like the 2nd tzad that it is a din in getting rid of your chametz.


2) Is the korbon still valid. Tosafos writes it is still valis cause no specific pasuk to say it is pasul. Lifi the tzad of chametz-why do I need a reason. It is pashut the korbon is kosher since it's not a chisaron  in the korbon. Only if you hold the first tzad do you need a reason, otherwise you would say the korbon is pasul.


3) The Minchas Chinuch has a shaylah if this issur would apply after Pesach. L'mashel if you leave over the eimurim to burn after Pesach, can you own chametz b'hetter. L'chorah his question only makes sense if it is a din in the korbon. If it is a din in removing your chametz, after Pesach there is no issur so why would I have to remove my chametz.


4)The Tzlach writes that we don't say aseh of korbon Pesach is docheh the lav of lo sishchat because the aseh and lav are intrinsically linked. Rabbi Akiva Eiger in Mishnayos Chagiga (1:1) argues and compares it to mitzvah of re'iyas habayis with korbon. (Ayin sham). I saw that some point out this machlokes can depend on our chakirah. If the lav is a din in the korbon, then the Tzlach is correct and the aseh and lav are intrinsically linked. But if lav is din in chametz then they are separate-lav is hilchos chametz and aseh is hilchos korbon.

Wednesday, February 26, 2014

Vayakhel:Meleches Machsheves

I  have been lazy and it's been a while since I posted. Here is this past week's shiur.

I spoke about Meleches Machsheves. Rav Menachem Zemba has a chakira in Totzaos Chaim (siman 8) whether we say that the meleches mchsheves makes the action into a melacha or do we say the action was always a melacha but the meleches machsheves creates the chiyuv. Inhis teshuvas Zera Avraham he presents both sides as 2 dinim in meleches machsheves as opposed to a chakira. My understanding of what he is saying in Zera Avraham is that depending on the case, one of the two dinim would apply.
The example he gives is that "zomer v'tzarich l'eitzim-pruning for the wood" is chayav on Shabbos but patur from Shmittah. Tosafos says it is because Shabbos has meleches machsheves. The pshat is that kotzeir b'etzem does not apply to pruning. So for Shemittah we don't view your act as kotzeir. However, since on Shabbos your machshava is to do that act, it becomes a melacha for Shabbos. In this the meleches machsheves creates shem melacha. An example of the other din would be shitas Rabbi Yehuda by melacha sh'ein tzricha l'gufa where you are chayav. You are chayav because according to Rabbi Yehuda, you have enough of a  meleches machsheves to create a chiyuv.

I saw that Rav Moshe in his Dibros Moshe in Bava Basra has a similar explanation. The gemara in Baba Kama 61 says if you are zoreh and the wind helps you, you ar patur if you damage someone but chayav for Shabbos. One reason given in the gemara is because of meleches machsheves. Rav Moshe explains that by nezikin we care about your act. So all you did was throw something in the air. The damage was caused by the wind carrying it. However, by Shabbos we care about what you wanted to happen. Your machshava plays a role in deciding if we attribute this action to you. Since you wanted the wind to carry the stalk, you accomplished your goal and we say you did the melacha.

In the Totzoas Chaim he points out that there is a machlokes rishonim how to learn the gemara. The Rosh understands the gemara that since this is how zoreh is done, (and how it was done in the Mishkan-see the Chasam Sofer in Shulchan Aruch Siman 252), therefore you are chayav. The mashmaos is that davka by zoreh we say meleches machsheves makes it a melacha. But other melachos we don't say it. According to the Rosh, meleches machsheves does not give the act a shem melacha but just creates a chiyuv.

Rav Asher Weiss and Totzoas Chaim point out that this is also a machlokes between the Rashba and Ran whether you are chayav for writing on Shabbos for "chok tochos". Chok kTochos is where l'moshol I have a page full of ink and I erase the ink and m'meila I have wriitng, for gittin it is not kesiva. The Rashba holds you are patur onn Shaboos because it is not kesiva and the Ran says meleches machsheves makes it into kesiva. The Ran holds like the tzad that meleches machsheves gives it a shem melacha.

One other nafka mina in the Totzoas Chaim is regarding chatzi shiur on Shabbos. Rashi says chatzi shiur is assur on Shabbos. The Rashbam holds chatzi shiur is patur because it is not meleches machsheves. According to Rashi you can argue that meleches mchsheves does not  makes the action into a melacha but rather it just creates the chiyuv. Therefore, even without meleches machsheves I have a shem melacha and can say chatzi shiur is assur.

Tuesday, January 14, 2014

Parshas Beshalach:Techum Shabbos

This week I spoke about Techum Shabbos.
There are three shittos regarding whether Techum Shabbos is m’doreisa or m’d’rabanan.

1)      The Rambam in Sefer Hamitzvos learns that even the techum of 2000 amos is Min Ha Torah.

2)      The Rambam in Mishna  Torah (Shabbos Perek 27) is chozer and says that only the techum of 12 mil is Min HaTorah. The techum of 2000 amos is only m’d’rabanan. The m’kor for this seems to be a Yerushalmi. This is the opinion of the Rif (end of Eiruvin Perek 1 )

3)      The Ramban both in Sefer Hamitzvos as well as in Eiruvin (Perek 1 17b)writes that only Rabbi Akiva holds Techum of 2000 amos is Min HaTorah and only  the Yerushalmi holds 12 mil is Min Ha Torah. The chachamim in the Bavli holds it is m’d’rabanan.
There is a gemara in Eiruvin (17b) which indicates one gets malkos for techum shabbos. The Ramban says this is going according to Rabbi Akiva who holds techum Shabbos is Min HaTorah

The Divrei Yechezkel (siman 7) has an interesting chakirah. How does one view the geder of Techum Shabbos. Is it a din that I am not allowed to leave my mokom (however your mokom is defined) and once I leave it I have violated the techum . Or do we say the issur is in walking 12 mil and the 12 mil is a shiur in the issur halicha.   

This second tzad needs a little hesber because it is definitely not assur to walk 12 mil within the techum. Furthermore, if a walk a little bit outside my techum even if it is not 12 mil I am also chayav. That being said it seems the Ramban in Eiruvin 43a seems to hold like this tzad. The Avi Ezri (Shabbos Perek 27)  explains the Ramban with this mehalech.

One nafka mina in this chakirah is chatzi shiur.
Why is there no issur chayzi shiur for walking less than 12 mil. The Divrei Yechezkel says this shows the 1st tzad makes sense. Since techum Shabbos is a din in leaving your mokom, it is not shayach to say chatzi shiur. I saw Rav Sheinberg in his Mishmeres HaChaim discusses this chakirah with regard to ma'avir 4 amos. He says there is no chatzi shiur by 4 amos because by hotza’ah that each amah is not a davar chashuv in of itself – it’s only the sum which creates the chashivus.

L'chorah you can say the same vort by techum Shabbos even according to teh Ramban.

There are other ways to answer teh question. Maybe we don't say chatzi shiur by issurei melacha. Ayin in Mishmeres Chaim. You would then need to figure out if techum Shabbos is an issur melacha or a diff issur of Shabbos (like Shevisas Beheima). Rav Shach and the Divrei Yechezkel both discuss this as well.