OPINIONS: The Gemara quotes a Beraisa which states that just as a Kohen is allowed to leave Eretz Yisrael in order to do business with Nochrim (even though the Rabanan gave Chutz la'Aretz a status of Tum'ah), he also may enter a cemetery for this purpose. The Gemara says that the Beraisa obviously does not mean that a Kohen may become Tamei merely in order to conduct business. Rather, the Beraisa must refer to a Beis ha'Peras, a field or area that the Rabanan decreed is to be treated as though it were Tamei.

The Beraisa continues and says that a Kohen is also permitted to walk through this area for the purpose of learning Torah or finding a wife.

Does the Beraisa mean that the Kohen may walk through the Beis ha'Peras only for these Mitzvos, or may he walk through the Beis ha'Peras to fulfill other Mitzvos as well?

(a) TOSFOS (DH Lilmod) writes that the Beraisa refers specifically to these two Mitzvos, which are especially important. The Mitzvah of learning Torah is especially important, because "Talmud Torah k'Neged Kulam," and it is the foundation of our lives. The Mitzvah of marrying is especially important, because procreation was one of the purposes for which Hash-m created man, as the verse states, "He did not create it in vain, He formed it to be inhabited" (Yeshayah 45:18). The Rabanan suspended their prohibition against entering a Beis ha'Peras because of the importance of fulfilling these two Mitzvos.

This opinion seems to be supported by the Gemara in Megilah (27a), which says that one may sell a Sefer Torah only for the purpose of learning Torah or marrying. The Gemara there explicitly states that a Sefer Torah may be sold "only" for these two Mitzvos, indicating their importance.

(b) The SHE'ILTOS D'RAV ACHAI GA'ON (Emor #103) argues that the Mitzvah of learning Torah and the Mitzvah of marrying a wife are lesser Mitzvos. He explains that in order to fulfill other Mitzvos, a Kohen certainly is permitted to walk through the Beis ha'Peras. He cites the Gemara in Berachos (19b) which states that a Kohen is permitted to step over a place which is Tamei mid'Rabanan in order to see a Jewish king, and even to see a foreign king (so that he will be able to discern the difference between a foreign king and a Jewish king). He quotes the Gemara here that says that a Kohen is permitted to walk through a Beis ha'Peras in order to learn Torah or to get married.

What does the She'iltos mean when he says that learning Torah and getting married are lesser Mitzvos? How does he understand the Gemara in Megilah that implies that these two Mitzvos are greater than other Mitzvos? (See SHE'EILAS SHALOM on the She'iltos, who notes that when Tosfos here quotes the She'iltos, he does not ask this question on the She'iltos.)

The SHE'EILAS SHALOM explains that the She'iltos certainly agrees that the Mitzvah of learning Torah and the Mitzvah of marrying are more important than going to see a foreign king. The She'iltos, however, is discussing the opinion of Rebbi Yosi, mentioned later in the Beraisa. Rebbi Yosi states that even when the Kohen is able to learn Torah without passing through the Beis ha'Peras, he nevertheless should pass through it in order to go to the teacher who will be able to teach him best. Accordingly, the words of the She'iltos are understood. Passing through a Beis ha'Peras in order to fulfill other Mitzvos (which certainly are less important than learning Torah or marrying) is more important than passing through a Beis ha'Peras in order to learn from a different teacher (since, if one does not pass through the Beis ha'Peras, he still will be able to learn Torah, but he will not be able to fulfill the other Mitzvos). The She'iltos is asking whether one may transgress an Isur d'Rabanan of Tum'ah in order to learn Torah or get married when he could do so without transgressing the Isur d'Rabanan. He answers this question with the opinion of Rebbi Yosi, who says that it is permitted.

The NETZIV in HA'EMEK SHE'EILAH points out an interesting argument between Tosfos and the She'iltos. He notes that the reason that Tosfos gives for the importance of marriage is the verse in Yeshayah. Similarly, the Gemara in Megilah quotes this verse as well when it gives the reason for why one may sell a Sefer Torah in order to get married. Why, though, does the Gemara there, and Tosfos here, not say that the reason why marriage is so important is because of the Torah's Mitzvah of "Peru u'Revu"? It seems that the fact that "Peru u'Revu" is a Mitzvah is not sufficient reason to permit transgressing an Isur d'Rabanan (and thus the verse in Yeshayah, which stresses that procreation is the purpose of Hash-m's creation of the world, is necessary).

If, however, an ordinary Mitzvah does not override an Isur d'Rabanan of Tum'ah, then what is the reasoning of the Gemara in Berachos that says that a Kohen may pass through a cemetery in order to see a foreign king (or to do a Mitzvah of "Kavod ha'Beriyos")? He answers that Tosfos understands that the Gemara in Berachos specifically refers to cases of "Kavod ha'Beriyos," the honor of man. The importance of "Kavod ha'Beriyos" does override Tum'ah d'Rabanan. Why, though, does the principle of "Kavod ha'Beriyos" override Tum'ah d'Rabanan, while the fulfillment of a Mitzvah d'Oraisa does not?

The Netziv explains as follows. It is true that a Mitzvas Aseh overrides a Lo Sa'aseh ("Aseh Docheh Lo Sa'aseh"), while a Mitzvah of "Kavod ha'Beriyos" does not have that power. However, when the Rabanan instituted a prohibition, they did not apply that prohibition when its application would lead to a lack of "Kavod ha'Beriyos," but they did decree that it be in force in a situation in which fulfilling the Isur d'Rabanan would prevent the person from fulfilling a Torah Mitzvah. This is the view of Tosfos.

The She'iltos, in contrast, makes a Kal v'Chomer from the principle of "Kavod ha'Beriyos" to other Mitzvos of the Torah. If, as the Gemara in Berachos says, "Kavod ha'Beriyos" overrides Tum'ah d'Rabanan, then certainly Mitzvos d'Oraisa do the same. (Accordingly, the Netziv learns the She'iltos in a way similar to that of the She'eilas Shalom.) (See also TOSFOS to Bechoros 29a, TUREI EVEN (in AVNEI MILU'IM) to Chagigah 4a, and ATZEI ARAZIM 1:9.) (Y. MONTROSE)

QUESTION: The Gemara states that, after the destruction of the Beis ha'Mikdash, if a person designates an animal as a Korban, the animal must be left to die. The Gemara says that the owner may not kill it through Shechitah, because if it is slaughtered properly someone might accidentally eat the meat of the Korban. The Gemara asks why the owner may not kill it in another way (such as by cutting it in half). Rava answers that if the owner cuts it in half "it would appear as though he is creating a blemish (Mum) in an animal of Kodshim."

The Gemara questions Rava's statement. A person who cuts an animal that was consecrated as a Korban does not merely "appear" to create a blemish in the animal, he does create a blemish in the animal! The Gemara answers that when the Beis ha'Mikdash is not standing and no animal can be offered as a Korban, there is no Isur d'Oraisa against making a blemish in a consecrated animal. Only when the Beis ha'Mikdash is standing and the animal is fit to be offered as a Korban does the Torah forbid making a blemish in a consecrated animal.

What is the source for the Gemara's statement that an animal is not fit to be offered as a Korban when there is no Beis ha'Mikdash?

The MAR'OS HA'TZOV'OS points out that this question does not apply according to the view of the RA'AVAD (Hilchos Beis ha'Bechirah 6:16) and the other Rishonim who maintain that in the absence of the Beis ha'Mikdash, Yerushalayim and the place of the Beis ha'Mikdash have no Kedushah. Even according to the opinion in the Gemara that the Kedushah of Eretz Yisrael still exists after the Churban, that opinion refers only to the Kedushah of the rest of Eretz Yisrael but not to the Kedushah of Yerushalayim. According to this view, an animal is unfit to be offered as a Korban after the Churban because of the lack of the Kedushah that is required in order to bring Korbanos.

However, the RAMBAM (Hilchos Beis ha'Bechirah 6:16) maintains that the original Kedushah remains with regard to all Halachos that are associated with Yerushalayim and the Beis ha'Mikdash. According to the Rambam's view, why is an animal unfit to be offered as a Korban today? The answer cannot be that the Rambam understands that Rava here follows the other opinion (that maintains that Yerushalayim also lost its Kedushah), because the Rambam himself (in Hilchos Isurei Mizbe'ach 1:7) follows the view of Rava when he rules that in the times of the Beis ha'Mikdash, a person would be punished with Malkus for creating a blemish in a consecrated animal, while today, when the Beis ha'Mikdash is not standing, a person would not receive Malkus for creating a blemish.

Why, according to the Rambam, may a Korban not be offered even though the Beis ha'Mikdash is not standing?

(a) The MINCHAS CHINUCH (287:11) answers that the Rambam indeed maintains that Rava's statement was said according to the other opinion, which maintains that the Kedushah of Yerushalayim departed when the Beis ha'Mikdash was destroyed. When the Rambam rules that a person does not receive Malkus for making a blemish in a consecrated animal, he is not ruling like Rava. RASHI here (DH v'Nihavei) points out that the Tana'im in Bechoros (33b) disagree about whether one is forbidden to make a blemish in an animal that already has a blemish. Rashi explains that the Gemara here is asking its question according to the opinion that making a blemish in such an animal is forbidden, and Rava is answering that the Halachah does not follow that opinion.

The Minchas Chinuch explains that the Rambam had a difficulty with Rashi's explanation of the Gemara. Why would the Gemara ask a question based on an opinion that the Halachah does not follow? Although he does not explain Rava's answer, he says that the Rambam deduced from the Gemara's question that the Halachah is that even nowadays one is not allowed to make a blemish in an animal that is already unfit, because of the Torah prohibition against making a blemish.

Why, then, does the Rambam rule that a person does not receive Malkus for making a blemish in a consecrated animal when there is no Beis ha'Mikdash? The Minchas Chinuch answers that the source of the opinion (of Rebbi Meir) in Bechoros which the Rambam follows is the extra word "Kol" in the verse, "Kol Mum Lo Yiheyeh Bo" -- "Any blemish shall not be [created] in it" (Vayikra 22:21). In SEFER HA'MITZVOS (Shoresh Beis), the Rambam expresses his opinion that prohibitions derived from inclusive words, such as from the word "Kol" in the verse above, are not punishable with Malkus.

(c) The KEHILOS YAKOV (7:2) suggests that the Rambam may rule like Rava, that an animal today is unfit to be offered as a Korban, even though he maintains that the Kedushah of Yerushalayim still exists. The SEFER HA'CHINUCH (#440) discusses his view that the prohibition against slaughtering a Korban outside of the Beis ha'Mikdash is still applicable today, when the Beis ha'Mikdash is not standing. Even though one is prohibited to slaughter a Korban outside of the Beis ha'Mikdash, that does not mean that one is prohibited to bring a Korban today (see Insights to Shevuos 16:1). However, while one may be permitted to bring a Korban today, there is no obligation to bring a Korban today.

What is the reason behind the prohibition against making a blemish in an animal of Kodshim? The reason seems to be that by making a blemish in the animal, the person takes the Korban away from its purpose of being offered to Hash-m. If, however, there is no longer a Mitzvah to offer Korbanos today, then making a blemish in a Korban no longer constitutes a loss of what is supposed to be brought to the Mizbe'ach, because nothing is supposed to be brought. Accordingly, the Rambam rules like Rava, that there is no longer a Torah prohibition to cause a blemish to any animal, since all animals are already unfit to be offered and there is no loss of Korbanos for the Beis ha'Mikdash. This does not contradict the fact that the original Kedushah of Yerushalayim still remains. (Y. MONTROSE)