Wednesday, December 23, 2009

why no "aseh doche lo ta'aseh" by gezel?

R' Moshe Amiel wrote an interesting sefer called "HaMidos l'Cheiker HaHalacha" ( 3 volumes available on hebrewbooks.org) which I wish I had time to read. The only comparable I am aware of is R' Kasher's "Mefa'aneiyach Tzefunos". Just like R' Kasher takes various chilukim and chakiros of the Rogatchover's and traces them through tens of sugyos to show how the Rogatchover applied them, R' Amiel tries to isolate certain logical principles and demonstrate how they apply across multiple sugyos, along the way explaining the central points of various machlokesin, resolving questions of Achronim, etc. As he writes in the introduction to one of the volumes, what makes the sefer unique is that instead of being organized around a masechta or around the Rambam, it is organized around these "midos", these logical constructs. My small critique after a cursory glance is that there are many, many sub-principles which he creates which makes things a bit complex, and he also has exceptions on top of the rules. That being said, the sefer is a tour de force of lomdus, for what is lomdus if not the translation of case-law into conceptual and logical principles.

Case in point as an illustration: Achronim ask why we never say aseh doche lo ta'aseh on an issur like gezel. For example, if you ate your friend's matzah so that the eating and theft were simultaneous, the halacha does not say that the mitzvah of matzah is doche the lav of gezel -- you are instead not yotzei. Why should this be so? R' Amiel's answer to this particular problem interestingly differs from that of his rebbe, R' Shimon Shkop, but at the same time is consistant with yesodos which R' Shimon sets down in other places. But before posting an answer let me leave the question out there and give people time to ponder.

8 comments:

  1. because the esah and the lo seseh,do not come at the same time,
    the loseseh is being transgresed as soon i lift the mazos and make the kinyan and the mitzvah is only later when i eat it

    chaim schonbrun

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  2. chaim b.9:53 PM

    I tried to head off your answer by specifying in the post that it was simultaneous. Nani'ach that they do come at the same time -- you gobble the maztah up without lifting it off the table.

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  3. the simple and most probably the real answer would be,because here the transgression is not only against g-d but also against your fellow man,in other words esse doche losese is only if both of them are BEIN ODOM LAMOKOM,then we can understand that the same g-d that told us not to wear SHATNEZ tells us to wear TZITZIS even if it is SHATNEZ,but if the trasgresion is also against fellow man,then even the torah cannot command us to eat MATZOH whereby we will hurt someone,
    i know this answer is not a LOMDISHE answer that you were looking for,but a very simple minded one,but sometimes the simple minded answers are THE EMES

    CHAIM SCHONBRUN

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  4. Daas Yochid11:39 PM

    I also thought of the above answer, but then thought of kom lei b'd'raha minei. IIRC, this applies even when the lesser aveira is bein odom lechaveiro. I never understood the logica of that.

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  5. Daas Yochid11:56 PM

    According to the Sfas Emes, Sukka, 35a, matzva needs to be yours (he point out sheula might alos be OK). If that's the case, and if we say that the geneiva and kiyum hamitzva came at the same time, then the only way it could be his, is if we say "gito veyodo bo;im ke'achas. Matbe that we only say in a case of gittin or shichrur avodim, because that's the only way for it to work. Not so in the case of gezel and matzvah.

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  6. Anonymous2:08 AM

    I think Lkovod Yom Tov You should listen to this
    http://www.simpletoremember.com/media/a/Real-Story-of-X-mas-and-New-Years-b/

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  7. I like the bein adam l'chaveiro answer, I would ust like to add the lomdus:

    Aseh doceh lo ta'aseh works b/c the action is no longer idenified as a sinful one when there is a mitzvah involved. This is b/c the "spiritual" benefit can counteract the "spiritual" loss

    However, w/ bein adam l'makom, since you are violating someone else's "rights," the action is always identified with sin.

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  8. Browser, the Torah does not command us to violate a bein adam l'chaveiro to fulfill matzah, but why would the Torah not allow it like it allows other transgressions? You need some hesber for why the distinction between bein adam l'makom and bein adam l'chaveiro makes a difference, which YD provided. (And lomdus is emes.)

    Da'as Yochid, my son last night told me the Ketzos holds that you don't say gito v'yado by kinyanim, (I forgot to ask him where this Ketzos is found otherwise I would give the mareh makom).

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