MITZVOS LAV LEIHANOS NITNU [Mitzvos Lav Leihanos Nitnu: idolatry: Sefer Torah]
(Beraisa): One may not bring Menachos or Nesachim from Meduma (a forbidden mixture), and all the more so not from Orlah or Kilai ha'Kerem. If it was brought, it is not Kodesh.
(Rav or Rav Asi): It is not Kodesh to be offered, but it is Kodesh to become Pasul.
Shabbos 108a (Beraisa): One may write Tefilin on skin of a Tahor animal, even if it is a Nevelah or Treifah. One may not write Tefilin on skin of a Tamei animal.
(R. Yehoshua ha'Garsi: One may not write Tefilin on skin of a Tamei Behemah, for it says "Lema'an Tihyeh Toras Hash-m b'Ficha" - it must be from something permitted to your mouth.
Question: If so, it should be forbidden on skin of a Treifah or Nevelah!
Answer (R. Yehoshua): Nevelah is superior to a slaughtered animal, for it is like someone executed by the king, and a Shechutah is like one killed by the executioner.
Avodah Zarah 46b - Question (Rami bar Chama): If one bowed to attached wheat, may it be used for a Minchah offering? Does Shinuy (a change, making the wheat into flour) permit something Ne'evad?
47a - Question (Reish Lakish): If a Nochri bowed to a date tree, may one use a Lulav from it for the Mitzvah?
If the tree was initially planted to be worshipped, it is Asur even for people (to benefit from it). Surely one may not use it for the Mitzvah. He asks about a tree planted and later worshipped;
R. Yosi b'Rebbi Yehudah forbids it even to people. Surely he forbids using it for the Mitzvah. Reish Lakish asks according to Chachamim. Is it repulsive to use it for a Mitzvah?
(Rav Dimi): He asks about an Asherah after Bitul. Does Dichuy apply to Mitzvos? (If something became Pasul for a Mitzvah, after the Pesul goes away, may it be used for the Mitzvah?)
Question (Rav Papa): If a Nochri bowed to an animal, may we use its wool be used for Techeiles of Bigdei Kehunah, its horns for trumpets, its thigh bones for flutes (for Leviyim to play in the Mikdash), and its intestines for strings for harps?
The opinion that the primary Mitzvah of Shirah of the Leviyim is to play instruments, surely he forbids. He asks according to the opinion that the primary Shirah is to sing. Since the instruments merely enhance the voices, it is permitted. Or, perhaps in any case it is forbidden?
Question (Rabah): If a Nochri bows to a spring, may the water be used for Nesachim?
Rambam (Hilchos Isurei Mizbe'ach 5:9): We do not bring Menachos or Nesachim from Tevel, Chadash before the Omer, Meduma, and all the more so not from Orlah or Kilai ha'Kerem, for this is Mitzvah ha'Ba'ah b'Aveirah, which Hash-m hates. If it was brought, it is not Kodesh to be offered, but it is like Kodshim that became Pasul.
Mishneh l'Melech: The Rambam says 'all the more so from Orlah or Kil'ai ha'Kerem', for these are Asur b'Hana'ah. Surely one may not bring them, for he benefits from this, and it is Mitzvah ha'Ba'ah b'Aveirah. However, Tosfos says that Hana'ah does not apply to Korbanos, for Mitzvos Lav Leihanos Nitnu.
Tosfos (Chulin 140a DH Lime'utei): Why is a verse needed to disqualify birds from Ir ha'Nidachas (for Korbanos)? One may not benefit from them, so they are not "mi'Mashke Yisrael"! Perhaps "mi'Mashke Yisrael" excludes only what was never permitted, e.g. Orlah and Kil'ai ha'Kerem. We do not disqualify due to Hana'ah, for Mitzvos Lav Leihanos Nitnu. It is not clear if an animal from an Ir ha'Nidachas is a Kosher Korban, since it is standing to be burned.
Rashi (88a DH v'Ein): One is not Yotzei with a mixture of Terumah and Chulin, and all the more so not with Orlah, since it is forbidden even to Kohanim.
Tosfos (88a DH Min): Meduma is a mixture of Orlah or Kil'ai ha'Kerem with Chulin. One is Yotzei with a mixture of Terumah, for it is permitted to Kohanim, so it is "mi'Mashke Yisrael."
Tosfos (Shabbos 108a DH Eizeh): Why may we write on animals that people killed not through Shechitah? Since they died, they are permitted. 'Something permitted to your mouth' means a species permitted to your mouth.
Tosfos (Avodah Zarah 47a DH Mi): Reish Lakish holds like Rava (Sukah 31b), who says that one may not take a Lulav of idolatry, but b'Di'eved he was Yotzei. He discusses before Bitul. He was Yotzei b'Di'eved because Mitzvos Lav Leihanos Nitnu. Here we discuss after Bitul, and ask if it is permitted l'Chatchilah, or if it is despised.
Tosfos (Gitin 20b DH bi'Chsoves): Even if a Get was tattooed on a slave through a Torah Isur, b'Di'eved it is Kosher, just like we said that a Get on Isurei Hana'ah is Kosher, even though one may not write it, for he benefits from Isurei Hana'ah.
Tosfos (Avodah Zarah 12b DH Ela): One is lashed for all Isurim only in the normal way of Hana'ah. Abnormal benefit is forbidden without lashes. For idolatry, perhaps one is lashed, just like one is lashed for abnormal benefit from Kil'ai ha'Kerem, since the Torah does not mention 'eating' regarding it.
Poskim and Acharonim
Bechor Shor (of the Tevu'as Shor) Shabbos 108a): May one write Tefilin on skin of an animal that was worshipped? Surely it is forbidden according to the opinion that requires something permitted to your mouth. Tosfos proved that this refers to a species permitted to your mouth. Perhaps he would permit! Isur Hana'ah is not a problem, for Mitzvos Lav Leihanos Nitnu. However, even Tosfos would forbid, for idolatry is equated to a Mes. Surely one may not write on a Mes, for it is not a permitted species.
Pri Megadim (OC, Petichah Koleles, Hilchos Tefilin): I am unsure if one may write Tefilin on hide of Isurei Hana'ah of idolatry. One may not blow a Shofar of idolatry, for it is despised. The same applies here. I ask about b'Di'eved. Perhaps it is a Berachah l'Vatalah, and it requires Teshuvah. 'Something permitted to your mouth' refers to a species permitted to your mouth. Mitzvos Lav Leihanos Nitnu, even Mitzvos mid'Rabanan like Sefer Torah, which is an enactment of Nevi'im. The Ba'al ha'Ma'or (Rosh Hashanah 28a) holds that for a Mitzvah mid'Rabanan, Mitzvos Leihanos Nitnu. He permits Tefilin, but not a Sefer Torah, for it says "write for yourselves this Shirah", i.e. it must be yours. I did not find this Drashah. If one bowed to an animal, its wool is Pasul for Tzitzis (OC 11:8). If the skin was tanned, this is a change that does not revert to its initial state. Therefore, if a thief tanned the hide or detached flax, it is Kosher l'Chatchilah. If so, the same applies to using for a Sefer Torah something that changed. Eliyahu Rabah connotes that it is despised for a Mitzvah, just like for a Korban. Regarding Megilah, which is mid'Rabanan, perhaps it is permitted, for mid'Oraisa it is not a need of Hash-m. However, it is Pasul for Neros for a Beis ha'Keneses.
Yad Eliyahu (35 DH uv'Nidon): I forbid l'Chatchilah to write a Sefer Torah, Tefilin or Mezuzah on the skin of a Rove'a or Nirva (an animal that slept with a person). This is like OC 153:21 (one may not use something traded for a dog or a harlot's wage for a Beis ha'Keneses). Also, one may not use a Ner of idolatry for a Beis ha'Keneses (154:11), even though it is permitted to a person (Rema). One may not blow a Shofar of idolatry, since it is despised (586:4). If an Asherah became Batel, we do not bring Bikurim from it, or use a Lulav from it. If a Sefer Torah was written on skin of idolatry, one should not read from it and it should be put in Genizah. It is like one who was Makdish a Ba'al Mum to the Mizbe'ach. It is not Kodesh. Perhaps we are stringent only for idolatry that a Nochri was Mevatel. Since it was once forbidden to people even to benefit from it, it is despised. A Rove'a or Nirva was never forbidden to people. It is not so despised to be forbidden for Kedushah. A Sefer Torah is unlike the Mizbe'ach, for which bestiality disqualifies. The Mordechai says that R. Tam permits cooking ink in Yayin Nesech; the Ri forbids according to those who forbid Hana'ah from wine of Nochrim. If it was written, it is permitted (Beis Yosef YD 123, b'Sof). However, there is different, for only the normal use of Isurim is forbidden, therefore, we permit b'Di'eved. Also, the Yayin Nesech changed and it is not recognized, so we cannot say that it is despised. The Rambam says that if one bowed to attached wheat, it may be used for Menachos. We cannot learn from there to forbidden skin used for a Sefer Torah, for it is still skin.
Yehudah Ya'aleh (1 YD 280): Bechor Shor and the Pri Megadim both forbid writing a Sefer Torah on skin of idolatry. Bechor Shor forbids because Avodah Zarah is equated to a Mes. Its skin is Pasul for a Sefer Torah, for it is forbidden to your mouth. He disqualified mid'Oraisa, even b'Di'eved. The Pri Megadim holds that it is despised for Hash-m, i.e. mid'Rabanan l'Chatchilah. I am unsure if he fulfilled the Mitzvah of writing a Sefer Torah if it was forbidden to write it! The Yerushalmi expounds "these are the Mitzvos." (Only) if you fulfilled them properly, they are Mitzvos. We hold like Rava (Temurah 4b-6a), that when the Torah forbade something, if one transgressed, it did not help. Both Bechor Shor and the Pri Megadim do not forbid Isurei Hana'ah b'Di'eved, because Mitzvos Lav Leihanos Nitnu. Many Poskim hold that if it saved him money, this is like physical benefit. Regarding this, Mitzvos Leihanos Nitnu! Therefore, the Torah forbids writing it, and he did not do the Mitzvah. To bless on it is a Berachah l'Vatalah. Some forbid only physical Hana'ah, but not saving money, e.g. Rashi and Tosfos in Zevachim. However, the Isur Hana'ah of idolatry applies even to abnormal uses (Tosfos Avodah Zarah 12b), for it says "nothing will cling to you from the Cherem." Saving money is no less than abnormal Hana'ah. One may cover the blood (of a slaughtered bird or Chayah) with dirt of an Ir ha'Nidachas or be Yotzei through a Shofar of idolatry, for there he does not save money.
Yehudah Ya'aleh (1 YD 351:6): Rashi and Tosfos in Zevachim did not explain 'all the more so' like the Mishneh l'Melech and Rambam, that it is because they are Asur b'Hana'ah. They must hold that even when he saves money, Mitzvos Lav Leihanos Nitnu, like Tosfos in Chulin. Tosfos was unsure if one is Yotzei through a forbidden Korban.
Aruch ha'Shulchan (YD 271:2): Maseches Sofrim (1:2) says that one may write on skin of Neveilos and Treifos; we are not concerned lest they are from animals offered to idolatry. This shows that one may not write on a hide of an animal offered to idolatry, i.e. for it is Asur b'Hana'ah. "Kisvu Lachem" mandates something that you may use, like we expound about Esrog. If so, the same applies to one who wrote on stolen hide, unless he acquired through Shinuy.
Shevet ha'Levi (8:223): Bechor Shor forbids because it is forbidden to your mouth. Chasan Sofer says that we permit skin of Neveilos and Treifos because those Isurim do not apply to the skin itself, but idolatry forbids the skin itself. The Aruch ha'Shulchan connotes that "Lachem" disqualifies a Sefer Torah, Tefilin and Mezuzos on skin of idolatry. Really, only a Sefer Torah must be "Lachem". However, perhaps Mitzvah ha'Ba b'Aveirah applies to all of them.