Thursday, December 24, 2009

why no "aseh doche lo ta'aseh" by gezel? (II)

I posted a poll on the side to see what topics people like best. I have my hunch, but let's see what you have to say.

Getting back to our story, why is it that you don't say aseh doche lo ta'aseh to allow stolen matzah?

The rule of aseh doche lo ta'aseh only applies when the kiyum mitzvah and violation of the lav are simultaneous (though see Piskei Tos. at the end of Zevachim), but I headed off that problem in the question by asking you to imagine a scenario where the theft and kiyum occur at the same time, e.g. you eat the matzah right off the table without picking it up first.

Another technical possibility mentioned in the comments is that matzah may require ownership, lachem (whether this is true or not is worth discussing, but grant the assumption). Since the aquisition of the matzah, the ownership, did not precede the kiyum hamitzvah, this scenario does not work.

The most popular answer was along the lines suggested by R' Shimon (Ch. to Mes. Nedarim). Aseh doche lo ta'aseh works when the aseh and the lav are isolated to the same person. For example, the Torah does not want you to wear kilayim, but the Torah's desire for you to fulfill the miztvah of tzitzis overrides the negative. When it comes to gezel, it's not just that the Torah wants you to avoid stealing, an issur gavra, but the Torah's aim is to protect the property of your fellow man, the nigzal. Your mitzvas hagavra can override your issur gavra, but not the harm caused to the nigzal. (Notice how R' Shimon's answer assumes something about the reason behind the issur, the sibah. Brisk would not be happy.)

Another example of the same principle at work: the gemara tells us that a neder can be chal on sukkah and prevent your fulfillment of the mitzvah. The Rashba asks: let the mitzvas aseh of sukkah be doche the lav of violating the neder? R' Shimon explains that neder is an issur cheftza, meaning the purpose of neder is to place the object off limits. The mitzvas hagavra of sukkah can override the personal chovas hagavra issur of breaking one's word, but it cannot make an object which is off limits suddenly usable.

No one got the idea suggested by R' Amiel, which is really built on a yesod of R' Shimon in Sha'rei Yosher. Why do we say safeik mamon l'kula - i.e. hamotzi m'chaveiro alav hara'aya, if you want my money, prove it's yours, but until then I am not turning it over. Shouldn't I be concerned that I may be holding money that is really yours, and sfeika d'oraysa (of gezel) l'chumra so I should turn it over?

The key to the answer is knowing which is the cart and which is the horse so we know what comes first. Am I the owner of an object because there is an issur of gezel on anyone else taking it, or is the issur of gezel a function of my ownership? R' Shimon opts for the latter definition. First clarify the rules of the marketplace, what ownership means, how property is aquired, etc. and then we can apply the rules of issur v'heter. If the rules of commerce establish my ownership of an object, I need not be concered with a safeik issur gezel because of someone else's claim. R' Amiel calls this the realm of the mishpati, commercial law, which is distinct from all other areas of halacha.

Aseh doche lo ta'aseh works in the realm of issur v'heter, but not in the realm of the mishpati. There is no commercial meaning to the mitzvah of matzah which would allow me to trespass on another person's property. This idea has a lot of ramifications, but enough for one post.


  1. Daas Yochid8:10 PM

    >Shouldn't I be concerned that I may be holding money that is really yours, and sfeika d'oraysa (of gezel) l'chumra so I should turn it over?

    But surely once you turn the money over, then the sofek is the other way round, maybe the money the other guy is now holding is mine. So these 2 things should cancel each other out, no?

    Also, could you address what I mentioned re קם ליה בדרבה מיניה, and whether is applies when the lesser aveira is בין אדם לחבירו. It seems shver to me according to the explanation you gave for gezel and עשה דוחה לא תעשה .

  2. >>>So these 2 things should cancel each other out, no?

    IIRC that is how some achronim answer the kashe.

    By lesser aveira=gezel, you mean misah and mamon? KlB"M works there, but I don't think you have a kashe if you learn that klb"m does not cancel the chiyuv mamon, it just mean B"D can't force you to pay. Nafka minah for tefisa.

  3. Anonymous2:28 PM

    im surprised theres no mention of the ohr sameach in jil chametz umatzah

  4. chaim b.6:05 PM

    Sorry, an encyclopedia I am not! Happy to add it if you would kindly summarize (either that or you are betting on my hunting down what you mean, but I can't promise I have to time to do so).

  5. I seem to recall that an aseh is not docheh a lav hanitak laseh.

    After all, gezel is of that type.

  6. Anonymous5:09 AM

    the ohr samayeach is one of the only ones to deal head on with the issue of how asseh etc. is not a striah to mitzvh haba baveria and what the koviim are

  7. OK, I took a look. R' Bloch has a similar approach in his Shiurei Halacha.

  8. Anonymous2:29 PM

    you might want to see yad hamelech there as well

  9. Tal Benschar8:22 PM

    Here is a thought:

    Apart from the issur of gezel, there is also the aseh of hashavas gezel. Not only is there a negative commandment not to steal but therr is a postive commandment to return the stolen object (and, as a corrolary, not to use it for mitzvos -- especially matzoh where the cheftzah will be destroyed and cannot be returned at all).

    So this is akin to an aseh being docheh a lo saaseh ve aseh, which we do not say.

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