tosefes yom tov and the geder of zeman gerama

The gemara (Sukkah 28) quotes a derasha to teach that women are obligated in tosefes Yom haKippurim just as men are.  The gemara explains the chiddush here is that since there is no punishment for violating tosefes you might have thought women are not chayavos, kah mashma lan that they are.  So what if there is no punishment -- why should that lead one to think women are exempt?  The Ritv"a explains that since there is no punishment it means tosefes does not have a lav associated with it like inuy on Yom Kippur proper does.  Therefore, since it is only an aseh which is zeman gerama you would have thought women are exempt, kah mashma lan the pasuk that in this mitzvah women are chayavos.

There is, however, another way you can read the kah mashma lan here, but it needs a little background to make sense:

Tosfos (Kiddushin 29) asks why we need a pasuk to tell us that women are exempt from the mitzvah of milah -- isn't it a mitzvas aseh she'hazeman gerama, and we already know the rule that women are exempt from all mitzvos aseh she'hazeman gerama.  The Tos RI"D gives an answer that, to be honest, can be interpreted in a few different ways depending on how you read the words.  The way the Divrei Yechezkel siman 45) reads it as a chiddush is the definition of zeman gerama.  Zeman gerama means a specific point in time serves as the cause of the mitzvah.  The night of 15 Nissan is a specific point in time which generates an obligation to eat matzah.  The 15th of Tishrei is a day that carries with it an obligation to eat in Sukkah.  If I ask you to take out a calendar and tell me which day of the year generates the chiyuv of milah, you can't do it.  The cause of the chiyuv of milah is the birth of the baby.  Just because you can't do milah until eight days later does not mean that the time is the cause of the mitzvah -- all it means is that the kiyum mitzvah can only be done then.  It's like saying you need a knife to do milah: that doesn't mean the knife is the cause of milah; all it means is practically you can't do milah without it.

The Ramban in his chiddushim to Kiddushin has a strange comment (and it may simply be a bad girsa) that sefiras ha'omer is not a mitzvas aseh she'hazeman gerama.  How can that be -- the mitzvah is all about counting specific days between Pesach and Shavuos!?  The Divrei Yechezkel suggests that the Ramban holds like the Tos RI"D.  The Torah never says to start counting the omer on the 16th of Nissan -- sefirah is not caused by our reaching a specific day on the calendar.  What the Torah says is that "m'macharas haShabbos," the day after Pesach, whatever day or date that may be, is a day you should start counting.  It's like saying to do milah on the eighth day, whatever calendar date that may be.

Here too with respect to tosefes Yom haKippurim, one can read the gemara's conclusion not as kah mashma lan this is an aseh she'hazeman gerama and nonetheless women are mechuyavos, but rather as kah mashma lan tosefes is not a mitzvah she'hazeman gerama at all.  There is no specific date or time that the Torah gives to do tosefes; it never says, for example, on the ninth of Tishrei and 5:30 accept upon yourself inuyim in advance.  All the mitzvah says is that at some point before 10 Tishrei you need to have tosefes.  Time is not the cause of the mitzvah; it's just another ingredient necessary to achieve the mitzvah's fulfillment.

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?