Thursday, September 12, 2013

chiddush of the Divrei Yechezkel on the geder of inuyim of Yom Kippur

There is a major machlokes Rishonim as to whether the inuyim other than eating and drinking on Yom Kippur are assurim m’doraysa or only m’derabbanan.  The Tosfos Yeshanim and the Ran in the last perek of Yoma raise similar questions against the view that they are d’oraysa, all of which can be boiled down to one basic point: if inuyim are d’oraysa, how do you explain all the exceptions?  Why can a kallah wash her face within the first 30 days after marriage (as we learn in the Mishna), why is there an exception for the king, why can someone with a skin problem do sicha, etc.?  If the issurim were created by Chazal, then Chazal are free to carve out whatever exceptions they see fit, but when it comes to issurei d’orasya, they should apply equally to all.  Where does the Torah allow for these exceptions?

The answer to all of these questions seems to be that on Yom Kippur the act of washing per se is not what is assur; the act of anointing per se is not what is assur – what is assur is being mevateil inuy, of getting pleasure from these acts.  It’s the end result, the enjoyment, which is assur -- not to act per so.  So, for example, if someone has to put cream on because of a skin problem, that’s not a bitul of inuy, as the purpose is medicinal.

The Ran goes a step further asks how it is permissible to bathe a child on Yom Kippur when we know there is an issur of giving ma’achalos assuros to a child.  If inuyim are derabbanan, there is no problem because the Ran (and Rashba in Yevamos) assume that the issur of “lo ta’achilum,” of giving a child something issur, only applies to issurei d’oraysa, i.e. the Ran holds you cannot feed a child neveilah, but you can feed a child tevel derabbanan (other Rishonim disagree).  But if inuyim are d’oraysa, how can you wash a child? 

The Ran limits his question to the inuyim of washing and anointing, but does not question the fact that a child must be fed –- apparently Ran holds that fasting would be dangerous, and even an adult is not obligated to jeapordize one's life to fast.  However, Rashi seems to disagree.  When the Mishna (Yoma 82) writes with respect to little children that that “ain m’anin osam l’sha’os,” Rashi explains that there is no *obligation* to withhold food even for a few hours.  The implication is that the choice is left to the adult whether or not to impose restrictions on the child, something that we certainly would not say if there was any danger involved.  Rashi, contra to the Ran, similarly makes very clear that when the gemara discusses which inuyim a child is allowed to violate and why (Yoma 78), eating is very much part of the discussion -- it does not fall under the blanket heter of sakanah. 

Even those Rishonim who hold washing and annointing are only derabbanan and therefore children are exempt hold that eating and drinking are issurei d'oraysa.  Therefore, if, as Rashi holds, there is no danger in a child fasting, why is one allowed to give them food?  Why is there no issur of "lo ta'achilum" like there is by neveilah?  How do you answer the Ran's question?

The Divrei Yechezkel (15:19) comes up with a unique chiddush here that needs one bit of background to get.  The gemara in Kiddushin (34) gives a few examples of mitzvos aseh that women are obligated in because they are not zman gerama, e.g. ma’akah, hashavas aviedah.  Tosfos asks: of all the examples to choose, it seems that in the one’s the gemara gives it makes no difference whether women women are obligated in the mitzvas aseh or not because in all of these cases there is a lo ta’aseh involved anyway.  If you don’t build a ma’akeh, there is a lav of “lo tasim damim b’veisecha;” if you don’t return a lost object, you violate a lav of “lo tochal l’hisalem.”  Since women are obligated in lavim, l’mai nafka minah in these cases that they are also obligated in the aseh?!  Tosfos comes up with a technical answer, creating various scenarios where the aseh applies and there would be no lav.  Ramban, however, writes a yesod: sometimes a lav does not stand on its own, but comes simply to bolster a mitzvas aseh.  The lav of “lo tasim damim” exists only because of the aseh of ma’akeh that drives it; the lav of not returning an object is there only because there is the driver of the mitzvas aseh that compels action.  The lav and aseh are not two independent forces – there is only one driving force and that is the aseh; the lav just tags along.

So too, suggests the Divrei Yechezkel, when it comes to the prohibitions of Yom Kippur.  They are all there just there to bolster the mitzvas aseh of “t’anu es nafshoseichem,” but if you don’t have the aseh, there can be no lavim.  Why can you feed a child on Yom Kippur but you can’t feed him/her neveilah?  Because the issur of “lo ta’achilum” prohibits giving the child ma’achalos assuros like neveilah, but “lo ta’achilum” doesn’t mean you have to chase after a child to take a lulav or put on tzitzis or do other mitzvos aseh.  Since inuyim all stem from a chiyuv to fulfill a mitzvas aseh, there is no chiyuv on an adult to force the child to do anything.

To end off with a question: what would be the din if someone is oseik b’mitzvah on Yom Kippur – does the rule of oseik b’miztvah patur min hamitzvah remove the obligation to fulfill the aseh of “ta’anu es nafshoseichem” and cancel m’meila all the inuyim that go along with it or not? 


  1. the meshalai'yach ha'sa'ir l'azazail...

  2. So an onein is patur from fasting on Y"K?

  3. Is there perhaps a distinction -- Ramban is speaking of someone who was is not chayav in the aseh at all, isn't even a bar chiyuva (e.g. like a woman for aseh she-ha'zman grama, or a child for all mitzvot), and therefore is not "in the parsha" for the lav either; versus someone who is merely exempt right now due to special circumstances like an onen or an osek b'mitzva?

    BTW, I like that Divrei Yechezkel applies this Ramban to inuy on Yom Kippur. The lav for inuy, if I'm not mistaken, is "ki kol hanefesh asher lo t'uneh ..." So even in the wording of the lav, it is defined in a way that connects directly to the aseh: you have to be m'aneh yourselves, and so don't *not* be m'aneh yourselves. (If you see what I mean.)

  4. The whole point of adding a lahv to innui is to tell you that it's more chamur than a regular assei. Oseik is a din of precedence among equal mitzvos, at least equal in the sense that they're both regular mitzvos asei. Because of that chumrah, there's no din that Oseik would patter it even mitzad the assei. (I'm not sure, but I would guess that there's no din of oseik by Pesach and Milah.) Lo Saachilum is a din in something that is be'etzem a lahv. We don't care how chamur the asei is, there's simply no din of lo saachilum on any issur asei.

    Sometimes you have a Zu v'ein tzorich lomar to explain why it says something in a mishna. So you see that sometimes you have to say something that is ein tzorich lomar. Ein tzorich lomar that I especially appreciate this he'ara. And a GCT to you.

  5. Minor point- there's no din aninus on Shabbos or Yom Kippur, because he can't do anything with the meis anyway.

    Regarding osek to patter Pesach/Milah, I just realized that it's not simple. In Sukka 25a the braisa learns osek from the people that were osek in meis mitzva at the expense of Pesach.

    Rashi there implies that if doing a mitzva kallah now will interfere with a mitzva chamura later, you don't HAVE to refrain from the kallah. The Maharam Shick (Tshuvos OC 45) asks that this implies that he MAY refrain from the kalla in light of the chamura, which is not like Moed Kattan 9a that says, based on אורח חיים פן תפלס, that you can't leave a kallah for a chamura, not just that you don't have to. He answers that maybe that's only among regular mitzvos asei, but when it comes to Pesach/Kareis, you may refrain from the kallah if you want to.

    Whether you like the Maharam Shick or not, you see that sometimes oseik does patter even Pesach.

  6. >>>Ramban is speaking of someone who was is not chayav in the aseh at all, isn't even a bar chiyuva (e.g. like a woman for aseh she-ha'zman grama, or a child for all mitzvot), and therefore is not "in the parsha" for the lav either; versus someone who is merely exempt right now due to special circumstances like an onen or an osek b'mitzva?

    Once you get to the point that everything revolves around being chayav in an aseh, then once the aseh isn't there, for whatever reason, what's left?

    B, Why do you learn oseik b'mitzvah only applies when there is a choice between equals? Would tadir or mekudash or factors like that impact on oseik b'mitzvah?

  7. In Menachos 49, the father of the sugya of Tadir/Mekudash, in the question of today's tamid and tomorrow's musaf, why doesn't the Gemara say, simply, that you should do today's tamid on the basis of Osek bemitzva?

    Rav Shach in the AE פ"ג מהל' תפילה הי"א discusses this, and, nebach on my deteriorating brain, what he says makes less than zero sense to me- less than zero because I think what he says is a good argument for the opposite conclusion.

    In any case, I think that some things are brought to bear on the din of Osek, and some things are not. Chiyuv Kares, or at least, a strengthening lahv, is.

  8. What I'm saying is that chamur/kal doesn't affect osek. Onesh, such as the result of a lahv, does, even if the lahv is only to be mechazek the asei. It's not hard to hear that there's a difference between kal/chamur within the rubric of mitzvas asei on the one hand and the darga of onshim like a lahv on the other.

  9. I don't understand your question. In the case of tadir/mekudash, you are not oisek in anything yet -- the question is what to be oisek in.

    Your sevara is basically the same as Tos Kiddushin 34 d"h ma'akah at the end that when an aseh has a lav with it it becomes "alim" viz a viz another aseh being doche it. You are saying it becomes "alim" when you have a situation of oisek b'mitzvah. Is that right?

    I would say the same chiluk: when it comes to aseh doche l"t, it is a question of which of two things to do before you've started either one. Oisek b'mitzvah means you are already doing the aseh kal and now want to give it up for something stronger. Don't you need a ra'aya to say that?

    Parenthetically, another example of the same idea of oisek b'mitzvah where the lav tags along with the aseh is perutah d'R' Yosef. The Mahartz Chiyus asks: why do you say oisek b'mitzvah patur min hamitzvah there -- there is also a lav of lo tuchal l'hisalem? I can't recall who gives the answer, but there as well the lav does not function independently, but is just an extension of the aseh. (This would be a kashe on you but you've limited your sevara to cases where the lav has an onseh, so you get a pass.)

  10. Nice tzushtell to the Maharitz C (minor error- his question is not because of the lo suchal le'his'alem, it's from lo sikpotz/lo se'ameitz.) I wonder what he does with your Tosfos in Kiddushin.

  11. According to the Divrei Yechezkel, why are women mechuyav to fast on Yom Kippur - the Aseh is Zman Gramah and the Lav is only where the Aseh is relevant???