The Gemarah says:If there is even one Mezuzah in a city it cannot become an Ir Ha'Nidachas. Since we have an Haseh of "V'Es Kol Shelalah...V'Sarafta".. and we cannot burn a Mezuzah- "Lo Sa'ason Ken la'Sh-m Elokeichem". Why can't the Haseh push away the Lo"Tasseh?
Shabtai Nacson, Toronto,Canada
Here is what we wrote in the Insights to Daf 113, where we addressed your question.
1) BURNING A MEZUZAH TOGETHER WITH THE REST OF AN "IR HA'NIDACHAS
QUESTION: The Gemara (112b) cites a Tosefta that discusses the procedure for proper disposal of various types of consecrated items that were in the possession of the people of an Ir ha'Nidachas. The Tosefta states that Kisvei ha'Kodesh, holy writings, should be hidden away (in "Genizah"). The Gemara here states that this Beraisa is not in accordance with the view of Rebbi Eliezer. Rebbi Eliezer maintains that if there is a single Mezuzah in the city, it cannot be punished as an Ir ha'Nidachas, because the verse says that all of the possessions of the city are to be gathered and burned. It is forbidden to burn a Mezuzah, though, because of the verse "Lo Sa'asun Ken" (Devarim 12:4). (See Insights to Sanhedrin 71a.)
Why, according to Rebbi Eliezer, should the prohibition of burning a Mezuzah prevent us from burning the Mezuzos of an Ir ha'Nidachas? There is a Mitzvas Aseh to burn the possessions of an Ir ha'Nidachas (Devarim 13:17), and we know that an Aseh overrides a Lo Sa'aseh -- "Aseh Docheh Lo Sa'aseh." Hence, the Mitzvas Aseh of burning the city should override the Isur of burning a Mezuzah! (REBBI AKIVA EIGER here, and TORAS CHAIM, 71a)
(a) The MARGOLIYOS HA'YAM cites the PRI HA'SADEH (2:2; see also LIMUDEI HASH-M #4) who explains that the Mitzvas Aseh of burning the city is fulfilled only when the entire city is burned. The Isur of burning a Mezuzah is transgressed before that point. Since the fulfillment of the Mitzvah is not done at the same time ("b'Idnei") as the Lo Sa'aseh is transgressed, the Aseh cannot be Docheh the Lo Sa'aseh (as the Gemara states in Shabbos 132b).
However, this answer does not suffice according to what the NIMUKEI YOSEF writes in Bava Metzia (30a). The Nimukei Yosef proves from the Gemara there that the principle of "Aseh Docheh Lo Sa'aseh" should apply to permit a Kohen to enter a cemetery to fulfill the Mitzvah of retrieving a lost object for someone, if not for the fact that the prohibition of a Kohen entering a cemetery involves an Aseh *and* a Lo Sa'aseh. Why should it be permitted if entering a cemetery was prohibited only because of a Lo Sa'aseh? The Kohen transgresses the Lo Sa'aseh (entering the cemetery) before he fulfills the Aseh (returning the lost object)! The Nimukei Yosef answers that the Mitzvas Aseh involves all of the actions that the Kohen must do in order to retrieve the lost object. Since his first step into the cemetery is part of the fulfillment of the Mitzvah, it is considered "b'Idnei," done at the same time as the Mitzvah, even though the Mitzvah is only completely fulfilled after the object is returned to its owner. The same principle should apply in our case to teach that it is permitted to burn the Mezuzah since it is part of the possessions of the city, even though it will take some time before every last possession in the city will be burned.
(b) The Margoliyos ha'Yam suggests that perhaps an exception to the principle of "Aseh Docheh Lo Sa'aseh" applies here. The Gemara in Zevachim (97b) learns from a verse that the principle of "Aseh Docheh Lo Sa'aseh" does not apply with regard to eating the Korbanos (for example, breaking bones of a Korban Pesach in order to eat the marrow), because "an Aseh is not Docheh a Lo Sa'aseh in the Mikdash." Perhaps the same is true with regard to burning the Holy Name of Hash-m; because of its Kedushah, an Aseh is not Docheh the Lo Sa'aseh of burning the Shem Hash-m. (See also IGROS MOSHE OC 1:4-6.)
However, this argument is weak, since the Gemara in Zevachim does not relate its rule to the Kedushah of the Lo Sa'aseh in the Mikdash. It seems to be a general rule that applies in the *location* of the Mikdash, rather than a reflection of the importance of a particular Lo Sa'aseh in comparison to the Aseh that is being Docheh it. The Lo Sa'aseh of breaking a bone in the Korban Pesach, for example, would not seem to be related to the Kedushah of the Mikdash.
The MESHECH CHOCHMAH (end of Parshas Ekev) also proposes that there is a verse which teaches that we do not to apply the rule of "Aseh Docheh Lo Sa'aseh" to burning the Mezuzos of an Ir ha'Nidachas. However, he contends that the verse is not the one that the Margoliyos ha'Yam quotes from Zevachim (which applies only to the Mikdash), but rather the verse in Devarim (12:4), which states, "You shall demolish their altars... and destroy the name of Avodah Zarah.... Do not do that to Hash-m." Raban Gamliel asks (in the Midrash; see Rashi), "Would we ever suspect a Jew, Chas v'Shalom, of destroying the altar of Hash-m, that the verse must warn us not to do such a thing?" He does not tell us his answer to this question. Perhaps his answer is that the verse means to prohibit destroying an altar (or Mezuzah) even if it is a *Mitzvah* to destroy it, such as when it is in an Ir ha'Nidachas! The verse, then, is specifically telling us not to allow the Mitzvah of burning an Ir ha'Nidachas to override the Lo Sa'aseh in this case, the Meshech Chochmah explains.
However, there is no source for such a Derashah in the Gemara or Midrash, so it is somewhat forced to suggest that our Gemara is relying on such an unwritten Derashah.
(c) RASHI here seems to have been bothered by our question. RASHI (DH di'Chesiv) explains that we cannot burn a Mezuzah of an Ir ha'Nidachas, because the Torah prohibits the burning of the Holy Name (as the Gemara says). Rashi then adds, "The Torah requires that we burn the *personal possessions* of the city ('Shelalah'), and a Mezuzah is not just a personal possession. It is a Heavenly possession ('Shelal Shamayim')."
REBBI AKIVA EIGER questions Rashi's explanation. Why does Rashi need to add this last phrase? It would suffice to say merely that the Torah prohibits destroying a Mezuzah! The MARGOLIYOS HA'YAM answers that Rashi's intention is to answer why the Mitzvah of burning the Ir ha'Nidachas does not override the prohibition of burning the Holy Name. His answer is that the Torah does not command us to burn the Mezuzos of the Ir ha'Nidachas in the first place. Since there is no Mitzvah to burn the Mezuzos, there is no Aseh to be Docheh the Lo Sa'aseh!
This answer, however, is incomplete. If the commandment to burn the city does not include burning the Mezuzos, how can it be inferred from the verse that the laws of an Ir ha'Nidachas apply only to a city that has no Mezuzos? Even if the city has Mezuzos, perhaps we are only commanded to burn everything else in the city, but not the Mezuzos (which we are to remove to safety). The Torah says to burn only "*Shelalah*," and a Mezuzah is not in the category of "Shelalah" and thus the Torah does not require that it be burned! (REBBI AKIVA EIGER ibid.; see the Margoliyos ha'Yam's attempt there to avoid this question. See also ARUCH LA'NER there for an entirely different explanation of the intention of Rashi.)
(d) A number of Acharonim suggest that burning the Holy Name is not only prohibited due to a Lo Sa'aseh, but it is prohibited with a Mitzvas Aseh as well. Even though we have a rule that "Aseh Docheh Lo Sa'aseh," there is also a rule that an Aseh is *not* Docheh a Lo Sa'aseh that is itself enforced with an Aseh.
What is the Aseh that prohibits burning the Holy Name? It is either the Mitzvah of "v'Ahavta Es Hash-m" (SANHEDRI KETANAH), the Mitzvah of "Es Hash-m Elokecha Tira" (ACHIEZER 2:48:2; BEIS MEIR; KOMETZ L'MINCHAH of the Minchas Chinuch, Mitzvah #69), or the Mitzvah of "v'Ibadtem Es Shemam," which teaches to destroy the name of Avodah Zarah and includes the implication that one may *not* destroy the name of *Hash-m* (ARUCH LA'NER 113a).