Tuesday, August 15, 2006

issurei derabbanan - issurei gavra or issurei cheftza?

Following up on the previous post, the Yerushalmi (which Rambam quotes l’halacha, Ma’aser Sheni 2:12-13) adds one additional important detail not mentioned yesterday. If ma’aser sheni became tamei either in or out of Yerushalayim from an av hatumah, or from a vlad hatumah (see yesterday’s post) outside Yerushalayim, the halacha is that we do not apply the din of “kaltuhu mechitzos” – you can be podesh the ma’aser sheni even in Yerushalayim and eat the food anywhere. (The exception noted yesterday is if it became tamei in Yerushalyim from a vlad hatumah, you must be podeh the ma’aser sheni, but the food must remain in Yerushalayim because of kaltuhu mechitzos). The Yerushalmi adds that if the food is tamei from a vlad hatumah, the owner of the food must make a tnai and stipulate that the din of kaltuhu mechitzos not apply upon his entrance to Yerushalayim, otherwise the default din of kaltuhu mechitzos will take effect.
R’ Yosef Engel in Esvan D’Oraysa (#10) cites this halacha as proof to the question of whether issurei derabbanan are issurei gavra or issurei cheftza. If the din of kaltuhu mechitzos does not apply to food which is tamei, why should whether or not the owner stipulated anything make a difference? However, if one assumes that food which is tamei m’derabbanan is not the same as a chefzta of food which is tamei min haTorah – tumah derabbanan is really tahor food that the chachamim impose restrictions on the gavra from using, then we can understand why an additional tnai is required to remove from this cheftza of tahor food the default din of kaltuhu mechitzos. R’ Yosef Engel brings a number of proofs in the rest of the essay to the opposite position, namely that issurei derabbanan are indeed issurei cheftza.

8 comments:

  1. Arthur Digby Sellers1:57 PM

    What kind of raya is that? Maybe the food is an issur cheftza, but only on a d'rabonon level, and min hatorah the mechitzos are koleit unless there's a t'nai?

    What's the din if you're mikadeish a woman with issurei hana'ah m'drabonon? (the truth is, even if she's not mikudeshes, that wouldn't prove the validity of RYE's raya - because kiddushin is different - afkinhu rabonon...)

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  2. anon13:11 PM

    ABS-

    as for your second example, the rishonim in the first perek of pesachim and elsewhere argue that point. Rashi holds that kidushin with chometz mederaban (i.e. in shaos derabana) doesnt work because of afkinhu, but other rishonim seems to argue. But the entire question of issur hanaah is different because even if it is just assur bahanaah mederabanan, it still can be worthless in a practical sense and therefore, not able to mekadesh with.

    As for the question about derabanans, wont that depend on what the makor of the issur is -- i.e. aliba deha-Rambam that they come from lo sasur (which is itself an issur gavra presumably) it should remain an issur gavra. As opposed to others (e.g., what R'Elchanan suggests in kuntres divrei sofrim to explain the Ramban's shitah that chazal inherently have the koach to create issurim) perhaps it would be an issur cheftza. Efshar. veyesh la-haarich ve-ein kan mekomo.

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  3. Arthur Digby Sellers3:30 PM

    But the entire question of issur hanaah is different because even if it is just assur bahanaah mederabanan, it still can be worthless in a practical sense

    I am arguing that point: it may only be worthless on a d'rabonon level (absent "afkinhu"). To wit: The Torah says it is worth something (only the chachomim declared that it is worthless), so the woman is mikudeshes min haTorah.

    As for the question about derabanans, wont that depend on what the makor of the issur

    That's the Meshech Chochma's take on the machlokes Rambam/Ramban in Parshas Shoftim. I believe that was quoted on this blog a while back.

    Regardless, RYE's raya may not be a raya. The Yerushalmi can work just as well if d'rabonon' effect the cheftza.

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  4. >>>and min hatorah the mechitzos are koleit unless there's a t'nai?

    Not sure what you mean - the whole din of mechitzos koltos is derabbanan (rambam ma'aser sheni 2:9). Were it d'oraysa, then your tnai would be masneh al mah shekasuv batorah and invalid.
    Re: lo tasur, if you check the archives around Shavuos you will find that Ramban and R' Elchanan discussed. I think your point is made by the Meshech Chochma in P' Shoftim (maybe I should revisit it in 2 weeks ; ) somewhat indirectly (I can't recall if R"Y Engel deals with it directly - he does deal with whether a violation of derabbanan b'shogeg needs kaparah, which may also hinge on the lo tasur issue).

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  5. Arthur Digby Sellers3:51 PM

    The Rambam repeatedly states that the walls of Yerushalyim being koleit ma'aser sheni is min haTorah. On Mechon Mamre, see ma'aser sheni 2:6-10, where he brings p'sukim. You are referring to 2:11 - and I don't know what the Rambam is referring to. Clearly, though, the concept of eating M"S in Yerushalyim is d'oraysa.

    Min haTorah, this is tahor food, in Yerushalayim. See 2:15 there, where he seems to be saying exactly what I am saying. Am I reading this wrong?

    Why does a t'nai help? I can come up with a svara...

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  6. >>>The Rambam repeatedly states that the walls of Yerushalyim being koleit ma'aser sheni is min haTorah. On Mechon Mamre, see ma'aser sheni 2:6-10, where he brings p'sukim.

    The Rambam says there is a chiyuv min hatorah to eat ma'aser in yerushalayim - perek 2, 5-8, as you referred to. The din of kaltuhu mechitzos is once ma;aser is brought into the city it cannot be removed - that is only a din derabbanan, which the rambam spells out in halacha 9. It is that specific din that tnai is going on.
    Anyway, nu, so what is your sevara? RY Engel has many ra;ayos that issurei derabbanan are issurei cheftza, so mistama there is some way to be doche this ra'aya!

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  7. anon16:10 PM

    ADS -

    But the entire question of issur hanaah is different because even if it is just assur bahanaah mederabanan, it still can be worthless in a practical sense

    I am arguing that point: it may only be worthless on a d'rabonon level (absent "afkinhu"). To wit: The Torah says it is worth something (only the chachomim declared that it is worthless), so the woman is mikudeshes min haTorah.
    ____________________________

    Your last point is also taluy on a point that is discussed by the achronim (and implicitly the rishonim) in the first perek of kidushin as to the nature of kidushin. If the kesef kidushin is supposed to provide her with some degree of hanaah (it's been a while but my recollection is that it seems to be the shitah of Tosfos Ri ha-zaken in several places), then the fact that as a practical matter there is no hanaah, she would not be mekudeshes -- even if min ha-Torah it is worth something because the issue may not just be value but hanaah from the kesef kidushin. Again Rabenu Tam holds that even without afkinhu there is no kidushin min ha-Torah with chometz mederabnan.

    Regardless, other than Rashi in pesachim I am unaware of other rishonim invoking afkinhu to explain the issur hanaah derabanan issue for kidushin (Rashi likewise invokes to explain agunah but many/most rishonim dont offer that reason as well -- see, e.g., the last Rambam in hilchos Gerushin).

    As for the Meshech Chochmah I have read the piece, I guess I just didnt remember. Thanks for pointing it out.

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  8. anon16:12 PM

    I left out a word in the last comment - Rashi likewise invokes afkinhu to explain the kula for aguna.

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