Tuesday, October 23, 2007

where a lav and aseh intersect

Kiddushin 34 gives examples of mitzvos aseh which are not zman gerama which women therefore are obligated to perform: hashavas aveidah, ma’akah, shiluach hakan. Tosfos asks why it is relevant whether these mitzvos are zman gerama or not - since each of these mitzvos also is linked to a lav which women are obligated in, women have to perform the action associated with the mitzvah irrespective of the aseh.

Tosfos answers by devising cases where the aseh applies without the lav. The Ramban, however, offers a more fundemental argument. In these cases the lav does not function as an independent issur, but is the Torah’s way of strengthening the mitzvas aseh – if the aseh does not apply, the lav which goes hand in hand with it does not apply either.

The debate between Tosfos and Ramban seems to be how to understand intersecting lavim/mitzvos – do we treat each factor independently, or do the aseh and lav merge together and function as one unit either based on the criteria of the aseh (in these cases) or the lav (perhaps in other cases).

Returning to the question of the Maharatz Chiyus: how we can say oseik b’mitzvah patur min hamitzvah by tzedaka when the mitzvah carries with it two separate lavim? One might argue based on the Ramban that the lavim are not independent issurim, but only serve to strengthen the aseh. If the aseh is cancelled, the lavim do not apply either.

6 comments:

  1. I remember when R'Mayer Twersky explained this machlokes rishonim -- he gave two mehalchim -- one focusing on whether the aseh and the lav were concurrent or not and the other focusing on the mechanics of aseh docheh lo taaseh (hutrah vs. dechuyah). But taking the first mehalech it does make sense.

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  2. Interesting to use the Ramban over here. The answer you are suggesting makes use of a whole new way of defining a lav that accompanies an aseh, which is in general a very big chiddush.
    I tried to answer more along the lines of defining osek b'mitzvah patur min hamitzvah. The ptur is a ptur from chiyuvim that are b'kum v'aseh. It is not a ptur from onshin however. Not eating treif is shev v'al taaseh. Hashavas Aveidah is a kum v'aseh. See my post here: http://elomdus.blogspot.com/2007/10/osek-bmitzvah-patur-min-hamitzvah.html

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  3. >>>The ptur is a ptur from chiyuvim that are b'kum v'aseh.

    It is only found as a ptur from mitzvos aseh. Take a look at hilchos aninus - whenever a lav is involved, even shev v'al ta'aseh, there is no exemption.

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  4. Can you be more specific about your proof from aninus?

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  5. IIRC the P"T has a machlokes achronim on whether the ptur extends to issues netilas yadayim, which is an issur aseh (IIRC as well there is an interesting PM"G somewhere that quotes a safeik whether an onein is chayav in sukkah - proof to the M"C that there is an issur aseh of eating outside sukkah).

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  6. If it's a machlokes acharonim or a safek it's not a proof!

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