Tuesday, November 28, 2006

where failure to fulfill a din derabbanan negates a kiyum d'oraysa

The Pri Megadim (Pesicha haKolleles 3:8) questions whether in a case where the Chachamim added extra criteria to the performance of a mitzvah and one failed to meet those criteria, is the kiyum d'oraysa of the mitzva also negated? One of the proofs to this issue comes from the case of a small sukkah which can fit a person’s head and body but not a table – although this sukkah is kosher m’doraysa, Tosfos (sukkah 3, brachos 11) writes that since it is pasul m’derabbanan one would not get any kiyum d’oraysa by using this sukkah. This chakira perhaps explains the debate in the first Mishna in Brachos. The Chachamim hold that keri’as shema should be recited only until chatzos – even though m’doraysa the mitzvah can be fulfilled until morning, the Chachamim set up a safeguard so people do not delay performing the mitzvah and come to forget about it. When Rabban Gamliel’s children came home past chatzos from a party, they asked their father whether they should recite kerias shema or not. Explains the PM”G, even though one cannot gain a kiyum mitzvah d’oraysa done deliberately not in accordance with the parameters set up by the Chachamim, here R’ Gamliel’s children missed the cutoff of chatzos only b’ones, unintentionally. R' Gamliel's children argued that violating a d'rabbanan b'ones should not negate a kiyum d'oraysa. I would just add two points: 1) the qualification for situations of ones perhaps points to the fact that lo tasur cannot be violated b’ones (whether that is the pshat here is admittedly debatable); 2) perhaps one could distinguish between different types of dinim derabbanan – is violating a seyag the same as violating other dinim derabbanan? To borrow another case from the PM”G, if someone recites birchas hamazon but leaves out the term “melech” from the bracha, which fails to meet the bracha formula set by the Chachamim, is that parallel to the other cases?

11 comments:

  1. would that boil down to an extension vs creation chakira (to use my Rebbi's terminology) . In oteh rwords is the d'rabanan part viewed as an extension of the d'oreisa or as a new halacha

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  2. Bill Selliger12:17 PM

    See Rashi to Sukka 22b (on the mishna) d"h k'sheira. This is in direct contrast to Tosafos. Interestingly, there is some debate if the word "lah" in Rashi should be changed to "lo".

    This issue came up many years ago in Yerushalayim when R. Shlezinger was going to blow shofar on Shabbos. The oilam haTorah wanted to know if they should go hear him and be yotzei. R. Tzvi Pesach discusses this in Mikra'ei Kodesh (tell me you don't have that), and his grandson discusses your chiluk (siyag vs. din in the mitzva) in the footnotes.

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  3. CM - sounds right.
    Connection to that shofar issue sounds right, but I'm not sure what you are driving at from the Mishna in Sukkah 22 - there the issur of hishtamshus b'ilan is a seperate din from the mitzvah of sukkah?

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  4. Bill Selliger1:18 PM

    Rashi says that if you're over a d'rabonon to be mikayeim a d'oraysa, you're yotzei. The mishna says not to climb into this sukka, but you did it anyway. Same as blowing a shofar on Shabbos, (possibly) same as sitting in a sukka that's too small - where Tosafos says you're not yotzei.

    V'al tashiveini that Raba was oker the din of shofar on Shabbos mikol v'kol, and the mishna in Sukka is not being oker the mitzva of sukka on Shabbos. Because, if this sukka in a tree was the only sukka around, the chachomim would have been oker the mitzva of sukka on Shabbos as well - for the same reason (g'zeira) that they forbade blowing shofar.

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  5. >>>Because, if this sukka in a tree was the only sukka around,

    Af al pi kein, by shofar the gezeirah directly uproots the mitzvah - R' Yona in Brachos by the seyag of chatzos invokes "yesh koach b'yad chachamim". But the gezeirah of not climbing a tree was not directed at sukkah. If Chaim Markowitz's chakira is right, can you really call the gezeirah of not climbing a tree an extension of mitzvas sukkah?

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  6. Bill Selliger2:47 PM

    Your chiluk is not michaleik. I achieved a mitzva through the violation of an explicit Rabbinic prohibition. The mishna says "ain olin". The prohibition could easily have been directed at sukka, but it also encompasses other scenarios (a regular Shabbos). I did it anyway. And I'm yotzei. Why should the strength of the g'zeira be mitigated because it's broad?

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  7. >>>Why should the strength of the g'zeira be mitigated because it's broad?

    Aderaba! Why should you mitigate and erase a kiyum d'oraysa just because a tangential issur derabbanan has been violated?

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  8. Just to add in my 2 cents.

    I agree with Chaim B. In fact I think my chakirah highlights the difference between the cases as Chaim B. already mentioned.

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  9. Bill Selliger3:21 PM

    I disagree with you; I don't think it's tangential.

    But even if it is, why should the strength of the chachomim be mitigated? Why would they be oker the kiyum of the mitzva (of shofar, for example) in a case where they were gozer specifically, and not be oker another mitzva (like sukka, according to you that it's tangential) when it's only a tangential issur? What is the svara to be michaleik? If you're over a d'rabonon in order to achieve a d'oraysa, you shouldn't be yotzei.

    Do you think there was some kind of convocation where all the Rabbis got together to determine in which instances they would be mivatel the kiyum of a mitzva, and in which instances they wouldn't? I think that's far fetched to say the least. I believe that for those that hold of the concept of bittul kiyum hamitzva (i.e. Tosafos), it's nisbatel ma'ailav, by nature of the fact that you were over a d'rabonon to get there. Accordingly, it doesn't make a difference where or how their prohibition was directed. And I'm showing that Rashi holds that the d'oraysa is not nisbatel.

    All this, of course, is l'shitascha. I believe that the issur d'rabonon of climbing a tree is just as related to the mitzva of sukka as G'zeira d'Raba is to shofar.

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  10. I guess there are two ways to approach the sugyah

    The Bill Selliger approach:

    The chachamim built into their takanos an idea of mitzvah ha'ba'ah b'aveirah, meaning that if you are oveir the d'rabanan you are not even m'kayeim the d'oraiysa

    Shittas HaChaim(s)

    It is based on the chakirah of extension vs creation. If the takana is an extension of the d'oreisa so you are not m'kayeim the d'oreisa. If it is a creation you are.

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  11. Voice of Reason7:49 PM

    Another example would be bentching - if one omits bris u'torah, there is no kiyum of the mitzva even d'oraisa, despite that being a rabbinic enactment.

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