BECHOROS 58 (11 Sivan) - Dedicated to commemorate the Yahrzeit of Chaim Yoseph ben Ephraim Henach ha'Levi z'l.
1) HALACHAH: "SHO'ALIN V'DORSHIN" -- LEARNING THE HALACHOS BEFORE THE FESTIVAL
QUESTION: The Mishnah (57b) teaches that there are three time periods during the year when Ma'aser Behemah must be separated. Those times are "Peras ha'Pesach, Peras Atzeres (Shavuos), and Peras ha'Chag (Sukos)."
In the Gemara, Rebbi Yosi b'Rebbi Yehudah explains that "Peras" refers to a minimum of fifteen days. Accordingly, the time for separating Ma'aser Behemah is fifteen days before Pesach, fifteen days before Shavuos, and fifteen days before Sukos. Rebbi Avahu explains that the word "Peras" means "half," and it refers to half of the time that is designated for learning the Halachos of the festival before the festival arrives. The Beraisa teaches, according to the Tana Kama, that "we expound on the Halachos of Pesach thirty days before Pesach." Half of this time is fifteen days.
The Gemara in Megilah (32a) concludes with the Halachah that Moshe Rabeinu "enacted for Yisrael that they expound upon the subject of the day, the laws of Pesach on Pesach, the laws of Shavuos on Shavuos, and the laws of Sukos on Sukos." This seems to contradict the Beraisa that says that we expound the Halachos of the festival thirty days before the festival. How is this contradiction to be reconciled? (See also Insights to Megilah 32:2.)
(a) The RAN in Megilah (2b of the pages of the Rif), RITVA (Megilah 4a), and RASHBA (Megilah 32a) answer that these are two separate enactments. The enactment to learn the Halachos of the festival on the day of the festival refers to the obligation of the Rav to expound upon the Halachos of the festival in his public lecture on the festival. The enactment to learn (or, literally, to "inquire" about -- "Sho'alin") the Halachos thirty days before the festival refers only to the student's right to ask the Rav a question about the festival within thirty days before the festival. Within thirty days before the festival, his question is considered relevant to the subject matter being studied. (One student's question takes precedence over another student's question only when it is relevant to the subject being studied; see SHULCHAN ARUCH YD 246:14.)
According to the Ran, there is no inherent obligation to study the Halachos of the festival thirty days before the festival.
(b) Many Rishonim, such as the BEHAG and the SHE'ILTOS, argue with the Ran and assert that there is an obligation to learn the Halachos of the festival thirty days before the festival (see also TOSFOS 4a, DH Mai). In addition, the Gemara in Sanhedrin (12b) implies that it means that we must study the Halachos thirty days before the festival.
What, then, does the Gemara in Megilah mean when it says that one must learn the Halachos of the festival on the day of the festival?
The MISHNAH BERURAH (OC 429:1) gives a straightforward answer based on the view of the BEIS YOSEF. The Beis Yosef explains that wherever the Gemara says that we expound the Halachos of the festival thirty days before the festival, it refers only to Pesach and not to the other festivals. When the Gemara here says that we expound the Halachos of the festival on the day of the festival, it refers to all of the festivals.
The Chachamim instituted that we study the Halachos of Pesach thirty days before the festival because the Halachos relevant to Pesach are so abundant and complex (such as the Halachos of making Matzos, kashering the vessels, destroying Chametz), and they have such severe consequences (the punishment of Kares for transgressing the prohibition against eating Chametz). Moreover, many of the Halachos of Pesach are relevant before Pesach, such as how to kasher vessels, how to bake Matzah, and how to get rid of Chametz. In contrast, the Halachos of the other festivals can be mastered in just a few days, or on Yom Tov itself, as Moshe Rabeinu instituted.
The BACH makes a similar distinction between Pesach and the other festivals.
(c) A number of Rishonim, however, seem to rule that the thirty-day obligation applies to all three festivals and not just to Pesach (see SHA'AR HA'TZIYUN 429:2; see also RASHI to Sukah 9a, DH Beis Shamai and MAHARSHA there). As the MAGEN AVRAHAM (OC 429:1; see MACHTZIS HA'SHEKEL there) points out, it is also evident from the Gemara here in Bechoros that this thirty-day obligation applies to the other festivals and not just to Pesach, since the Mishnah refers to "Peras" of Shavuos and Sukos just as it refers to "Peras" of Pesach (D. BLOOM).
The VILNA GA'ON (Bi'ur ha'Gra) explains that when the Gemara here says that Moshe Rabeinu enacted that we expound upon the Halachos of the festival on the festival, it does not mean only on the day of the festival. Rather, it means during the season of the festival -- thirty days before the festival.
(d) The PRI MEGADIM, PRI CHADASH, and CHOK YAKOV (as cited by the BI'UR HALACHAH OC 429:1) answer based on the Yerushalmi (Pesachim 1:1) and Tosefta in Megilah which teach that the obligation to learn the Halachos on the festival itself applies to every individual, while the obligation to study the Halachos thirty days before the festival applies to the groups of people who gather together in the study halls to learn. The Gemara in Megilah refers to the enactment made for individuals, while the Gemara here (and in Megilah 29b and Pesachim 6b) refers to groups of people who learn together in the study hall. (This seems to be the opposite of the first answer cited above.)
The ELIYAH RABAH refutes this explanation. He contends that every time the Gemara (Bavli) mentions this Halachah, it does not differentiate between an individual who learns by himself in his home and a group of people who learn together in the study hall. Similarly, the BACH writes that "every person is obligated to study the Halachos of Pesach on Purim (thirty days before Pesach)." This is also clear from the words of the BEHAG.
HALACHAH: The SHULCHAN ARUCH (OC 429:1) quotes the words of the Gemara earlier which says, "We expound (Sho'alin) the Halachos of Pesach thirty days before Pesach." The BI'UR HALACHAH there points out the apparent contradiction between the two statements in the Gemara. He concludes that although it is preferable for every person to study the Halachos thirty days before the Yom Tov, at least the public study groups should make it their practice to do so, in order to fulfill the ruling of the Yerushalmi (in (d) above).
2) "LIKE THE PEEL OF A GARLIC"
QUESTION; Ben Azai said that "all of the Chachamim of Yisrael are like the peel of a garlic (Kelipas ha'Shum) compared to me, except for this Kere'ach" (a reference to Rebbi Akiva (RASHI) or to Rebbi Elazar ben Azaryah (RABEINU NISIM in TOSFOS; see also TZON KODASHIM).
Ben Azai certainly would not have said something derogatory about the other Chachamim. What, then, was his intention in calling the Chachamim garlic peels?
ANSWER: The SHELAH HA'KODESH (Shevuos 30b) explains that just as the skin of the garlic protects the actual garlic and preserves its pungency, the Chachamim, Ben Azai notes, sustain him with their encyclopedic knowledge.
3) "KAFATZ ECHAD MIN HA'MENUYIN"
QUESTION: The Mishnah teaches that if one of the Menuyin, one of the animals counted for the purpose of separating Ma'aser Behemah, jumped back into the flock, the entire flock becomes exempt from Ma'aser Behemah. TOSFOS in Bava Metzia (6b, DH Kafatz) asks that the animal that jumped back into the flock should be Batel b'Rov -- it should become annulled to the majority of animals in the flock that are obligated to be counted for Ma'aser Behemah, enabling the rest of the flock to be counted and tithed. Why does the principle of Batel b'Rov not apply in such a case?
(a) The TOSFOS HA'ROSH (quoted by the Shitah Mekubetzes in Bava Metzia 6b) answers that the Mitzvah to separate Ma'aser from one's animals requires that the tenth animal be an "Asiri Vadai" -- a definite tenth (that is, the animal being taken as the tithe must come from a group of animals that are definitely obligated to be tithed). An obligation based on a Rov is not sufficient. (See also Insights to Bechoros 57:2.)
(b) The NACHALAS YAKOV (by the author of NESIVOS HA'MISHPAT, Rav Yakov mi'Lisa) explains that many Rishonim maintain that only an item of Isur can become Batel in Heter, but an item of Heter cannot become Batel in Isur. That is, only a forbidden item can become nullified in a majority of permissible items, but a permissible item cannot become nullified in a majority of forbidden items. An Isur is able to lose its status of Isur and become Heter through Bitul, but Bitul cannot cause Heter to acquire the status of Isur. (See also PRI MEGADIM, Introduction to Hilchos Ta'aruvos.) Similarly, Bitul cannot make an animal which is exempt from Ma'aser become Chayav (that is, Bitul can remove a status, but it cannot add a status).
4) A "TEREIFAH" THAT IS EXEMPT FROM "MA'ASER BEHEMAH"
QUESTION: The Beraisa derives that a Tereifah is not included in the count of animals for Ma'aser Behemah from the verse, "Kol Asher Ya'avor" -- "Of every animal that passes under the staff, the tenth one shall be consecrated to Hash-m" (Vayikra 27:32). This excludes a Tereifah "that does not pass under the staff." RASHI (DH Tereifah) explains that this refers to an animal whose leg was broken above the knee, which is a Tereifah (Chulin 42b), and thus the animal cannot walk in order to "pass under the staff."
This implies that an animal whose leg is broken below the knee is included in the obligation of Ma'aser Behemah. Why, though, should it be included? Even though such an animal is not considered a Tereifah (Chulin 76a), it still is unable to walk and to pass under the staff!
(a) TOSFOS in Chulin (136b, DH Perat l'Tereifah; see also Insights there) suggests that perhaps such an animal indeed is exempt from Ma'aser Behemah.
This answer is problematic, however, because if the criterion for being included in the obligation of Ma'aser Behemah is that the animal be able to walk under the staff, then the Gemara should say that "Kol Asher Ya'avor Tachas ha'Shavet" excludes "an animal that cannot walk," and not that it excludes a Tereifah!
(b) The TOSFOS HA'ROSH in Chulin (136b) disagrees with Tosfos there and says that it is not logical to suggest that the verse teaches that an animal with a break in its leg below the Arkuvah is exempt from Ma'aser, because such an animal is in the same category as any other Ba'al Mum (to which the obligation of Ma'aser Behemah applies). The verse, therefore, must be exempting only a Halachic category from Ma'aser, such as the category of Tereifah, and the exemption does not depend on whether or not the animal can actually walk.
Similarly, TOSFOS here (57a, DH Perat l'Tereifah) writes that an animal whose leg is broken beneath the knee is considered to be one that can "pass under the staff" and is obligated in Ma'aser Behemah, since it is not a Tereifah. Even though it cannot physically pass under the staff, it is included in the category of "Kol Asher Ya'avor Tachas ha'Shavet" since it is not a Tereifah but a healthy animal.
According to this approach, when the Beraisa says, "This excludes a Tereifah that does not pass under the staff," it is not saying that a Tereifah is excluded because it does not pass under the staff. The phrase "that does not pass under the staff" is not a reason for why a Tereifah is excluded. Rather, these words are merely expressing the Halachah: a Tereifah does not pass under the staff to be included in the count for Ma'aser Behemah (or, in the words of the Mishnah (57a), a Tereifah does not "enter the corral to be tithed"). The reason why it does not pass under the staff is that it is not "Ya'avor" -- it is not a healthy, viable animal that will pass under the staff and continue to live, and thus it cannot be included with the other, healthy animals.
(c) The RASHASH gives a novel answer that he bases on a peculiarity in the wording of the Beraisa here. The Beraisa derives the exemption of a Tereifah from Ma'aser Behemah from the words, "Kol Asher Ya'avor Tachas." The BACH (#3) and SHITAH MEKUBETZES (#7) point out that the word "Tachas" ("under") seems extraneous and should be omitted, because the Halachah that a Tereifah is exempt is derived from the word "Ya'avor" -- "it shall pass."
The Rashash suggests that perhaps this Halachah indeed is derived from the word "Tachas." The DARCHEI MOSHE (beginning of YD 35) cites Rishonim who rule that when one counts his animals for Ma'aser Behemah, he should pass his hand over the animal and press down. If the animal lowers itself to the ground, then this is a sign that the animal is not a Tereifah. If, however, the animal remains upright under the pressure of the owner's hand, then this shows that the animal is a Tereifah. Perhaps this is the intention of the Beraisa here; "Kol Asher Ya'avor Tachas" teaches that a Tereifah is exempt from Ma'aser Behemah, because a Tereifah does not "lower" itself under the pressure of one's hand!