Excellent point!

Apparently, Rabeinu Chananel is relying on the Gemara in Shabbos 24b-25a which teaches that we do not say Aseh Docheh Lo Ta'aseh to permit a Melachah on Yom Tov (at least if it can be done after Yom Tov, see the Gemara there and Rashi DH Mena'hanei Mili).

If the Hav'arah is only a Lav and not a Melachah an Aseh can be Docheh it.

Best Wishes,

M. KORNFELD

Rabeinu Chananel is explaining what would have been if the Mitzvah of Tashbisu was to be performed on Yom Tov (and not on Erev Yom Tov). Since the Bi'ur would accomplish the same goal (of destroying the Chametz) if it were performed after Yom Tov, that is, on Chol ha'Mo'ed, therefore Tashbisu should not be Doecheh a Lo Sa'aseh according to the Gemara in Shabbos.

Be well,

M. Kornfeld

Normally the rule of Aseh Docheh Lo Sa'aseh allows us to be Docheh the Lo Sa'aseh immediately without waiting until the Lo Sa'aseh no longer applies.

M. Kornfeld

I'm sorry, I believe you are correct and I wrote too hastily. Although I do have sources for what I wrote, upon further thought I think that the answer to your question is somewhat different from what I originally wrote:

(a) The source that Aseh Docheh Lo Sa'aseh applies even if the Mitzvah can be fulfilled at a later time is the Rashba (Shabbos 24b, Beitzah 8b). However, he does not seem to differentiate between a Lo Sa'aseh of Yom Tov and any other Lo Sa'aseh; both will be Nidcheh under such circumstances.

I originally had in mind to answer you based on Tosfos Yevamos 5b DH Kulah and Tosfos Yeshanim Shabbos 25a DH Havah Lei, who write that Aseh Docheh Lo Sa'aseh does not apply if the Mitzvas Aseh can be fulfilled at a later time. But again, they do not seem to differentiate between a Lo Sa'aseh of Yom Tov and any other Lo Sa'aseh; both will not be Nidcheh under such circumstances. (The Dvar Avraham 2:4:11 does indeed suggest that Tosfos might differentiate between Yom Tov and other Isurim, but there is no basis for his suggestion in the words of Tosfos.)

(b) In that case, we are back to your question. The correct source to cite to answer your question is the RIVA in Tosfos Pesachim 47b DH Ketishah, who understands from the Gemara in Shabbos 24b that "[the Lav of Melachah on] Yom Tov cannot be Nidcheh by an Aseh." This also appears to be the opinion of the Ramban in Shabbos 24b.

According to this view, we may posit that a Melachah on Yom Tov cannot be Nidcheh, but if Hav'arah is not a Melachah (but only a normal Lav), it would be Nidcheh by an Aseh like any other Lav. This, then, might be what Rabeinu Chananel means: if Hav'arah is a Melachah it is not Nidcheh by the Aseh of Tashbisu, but if it is a Lav it is Nidcheh.

(c) After looking around, I found that the Divrei Yechezkel (10:1) addresses your question on Rabeinu Chananel -- as Avi Kappel also pointed out, above. His answer has three steps:

1. First, according to Rav Ashi (Shabbos 25a), Yom Tov is a Lo Sa'aseh and an Aseh, and that is why we do not apply Aseh Docheh Lo Sa'aseh to Lav of Yom Tov.

2. The Aseh of Yom Tov only applies to a Melachah of Yom Tov, and not to a Lav that is not a Melachah - such as Hav'arah according to Rebbi Yosi. The source for this suggestion is the Rashba to Yevamos 6a citing Rabeinu Yonah. (There is a lengthy discussion on this point in the Minchas Chinuch 298:5,6.)

3. However, all this only explains how Rav Ashi will learn Rebbi Akiva's words in the Beraisa here. Other Amora'im, though, offer different sources to explain why we do not say Aseh Docheh Lo Sa'aseh for the Lav of Yom Tov, implying that Yom Tov is indeed but a Lav and not an Aseh. The Divrei Yechezkel suggests that Rabeinu Chananel might hold like Tosfos Pesachim 84a DH v'Lo, who posits that Rava (one of the Amora'im who argues with Rav Ashi on Shabbos 24b) may indeed agree with Rav Ashi that Yom Tov is an Aseh and Lo Sa'aseh, and nevertheless he needs another source to show why an Aseh is not Docheh a Lo Sa'aseh on Yom Tov -- see Tosfos there.

Note that the Divrei Yechezkel's answer is still missing a point; he does not explain how the rest of the Amora'im on Shabbos 24b (Abaye, Chizkiyah) will explain Rebbi Akiva's statement, since they certainly do not seem to accept Rav Ashi's suggestion that Melachah on Yom Tov involves an Isur Aseh in addition to the Lav. (Tosfos' explanation on 84a for why Rava requires a second source, is unique to Rava.)

(d) There is another important issue to discuss with regard to Rabeinu Chananel, and also with regard to the RIVA in Tosfos 5b DH Lechalek, for that matter. Rabeinu Chananel writes that an Aseh would be Docheh Hav'arah on Yom Tov according to Rebbi Yosi -- and RIVA says that Hav'arah is altogether Mutar on Yom Tov according to Rebbi Yosi. How will Rabeinu Chananel and RIVA understand Abaye and Chizkiyah in Shabbos 24b, who learn from verses that the Aseh of Sereifas Kodshim is not Docheh Yom Tov. The only possible Isur that Sereifas Kodshim on Yom Tov can involve is Hav'arah, and we do seem to say Aseh Docheh Lo Sa'aseh for Hav'arah on Yom Tov according to Rabeinu Chananel, while according to RIVA Hav'arah is Mutar entirely on Yom Tov!

(This question is valid according to both my explanation, (b), and that of the Divrei Yechezkel, (c), yet I have not yet found anyone who asked this rather obvious question.)

Are the verses of Chizkiyah and Abaye to be seen as Gezeiros ha'Kasuv that one should not be Docheh the Lav of Hav'arah on Yom Tov even though it is not a Melachah? If so, then how can Rabeinu Chananel write here that we are Docheh the Lo Sa'aseh of Hav'arah on Yom Tov according to Rebbi Yosi?! And according to RIVA, Hav'arah is not even a Lav!

One possible approach is that Abaye and Chizkiyah in Shabbos 24b are prohibiting Sereifas Kodshim on Yom Tov only according to Rebbi Nasan, who argues with Rebbi Yosi and maintains that Hav'arah Lechalek Yatzas. According to him, Hav'arah is a Melachah on Yom Tov just like any other. However, if this is true then Rebbi Yosi, who holds that Hav'arah is not a Melachah, should permit Sereifas Kodshim on Yom Tov. Yet we find no such opinion expressed anywhere; to the contrary, it seems to be an ironclad rule that we do not burn Kodshim on Yom Tov.

Rather, it seems to me that the answer to this question can be learned from the words of Rashi in Beitzah 27b DH Chalah (and Shabbos 126b DH Mefanin, see also Tosfos Shabbos 25b DH Kach, citing Rashi). Rashi writes that Terumah Temei'ah, unlike Kodshim Temei'im, need not be burnt. Since it is permitted to derive benefit from Terumah Temei'ah while destroying it, it can be fed to an animal instead of burning it. Rashi adds, though, that on Shabbos it is prohibited to feed Terumah Temei'ah to an animal since the Torah gave "special significance" ("Rachmana Achshevah") to the destruction of Kodshim Temei'im by making it a Mitzvah. This special significance causes it to become a Melachah on Shabbos even when it does not involve Hav'arah.

(Bi'ur of Kodshim Temei'im or Pesulim is a Mitzvah d'Oraisa. Bi'ur of Terumah Temei'ah is only a Mitzvah of the Rabanan, who instituted the Mitzvah because Terumah is "similar to Kodshim" - see Rashi Shabbos 25a DH Mitzvah and Tosfos there DH Kach. Since Terumah is similar to Kodshim, they gave Bi'ur Terumah the same status as Bi'ur Kodshim, although they did not prohibit feeding it to animals.)

Where do we find that it is prohibited to burn Kodshim on Yom Tov because of a special significance that the Torah gave to Bi'ur Kodshim, making it a Melachah? Perhaps the Torah prohibited burning Kodshim because of the familiar Melachah of Hav'arah (since it is not permitted to derive benefit from Kodshim while they are being burned, and there is no Tzorech Yom Tov involved in their burning)? It must be that Rashi's words were written according to the opinion of Rebbi Yosi, who holds that Hav'arah is not an Av Melachah on Yom Tov (as Rashi writes here in Pesachim 5b, and as Rabeinu Chananel and the RIVA write here). Even though it is not an Av Melachah and it should be permitted to burn Kodshim on Yom Tov, nevertheless Abaye and Chizkiyah derive from verses that it is prohibited to burn Kodshim on Yom Tov. From these verses it then becomes clear that the Torah is giving Sereifas Kodshim the significance of an Av Melachah, which cannot be Nidcheh by an Aseh on Yom Tov. This is the source for Rashi's words in Beitzah 27b that the Torah gives a special significance to the Hav'arah of Kodshim.

(Note that although Rashi's term of "Rachmana Achshevah" is unique to Rebbi Yosi's opinion, as explained above, nevertheless the Halachah of Rashi, that one may not feed Terumah Temei'ah to an animal on Yom Tov, is true even according to those who argue with Rebbi Yosi, albeit for a different reason. If Hav'arah is an Av Melachah, it is certainly prohibited to destroy Kodshim Temei'im on Yom Tov by burning them. The Rabanan decreed not to destroy Terumah Temei'ah by burning it for fuel or by feeding it to an animal on Yom Tov as well, even though no Melachah of Hav'arah is involved, because it is "similar to Kodshim." See Rashi Shabbos 25a DH v'Ein Aseh.)

We can now answer our question. Rebbi Yosi prohibits burning Kodshim on Yom Tov because of "Rachmana Achshevah l'Melachah." However, he does not consider any other type of burning on Yom Tov to be a Melachah, according to Rabeinu Chananel and the RIVA, including the burning of Chametz. Burning Chametz is not comparable to burning Kodshim for a number of reasons:

(1) Exegetically, there is no source in the Torah to make the burning of Chametz into a Melachah.

(2) Logically, the burning of Kodshim and the burning of Chametz are not comparable. Burning Kodshim is a way of "taking care" of them so that they should not be defiled. Burning Chametz is simply a way of "getting rid" of it such that it is no longer in one's possession.

(This explanation can solve the problem that we pointed out with the Divrei Yechezkel's words as well, albeit in a somewhat forced manner. The Divrei Yechezkel may learn that Abaye and Chizkiyah also agree that Yom Tov is an Aseh, as the Beraisa in our Gemara implies. They needed a new source to prohibit burning Kodshim on Yom Tov only to satisfy the opinion of Rebbi Yosi, who does not consider Hav'arah to be an Aseh on Yom Tov! Their source will prohibit burning Kodshim on Yom Tov according to Rebbi Yosi but it will not prohibit burning Chametz on Yom Tov, as we have explained.)

Please excuse the lengthiness of my reply. I believe we have made some very important, interesting and accurate points, which should shed light not only on this Sugya but on many others as well. My guess is that you will appreciate seeing more of the picture.

b'Hatzlachah,

Mordecai Kornfeld

(a) I think that your suggestion is very similar to the answer I gave (cited above), based on Rashi in Beitzah. By the way, over Shabbos I found the question and answer that I gave here regarding Sereifas Kodshim according to Rebbi Yosi in the Beis ha'Levi (end of 1:16), Baruch Hash-m she'Kivanti l'Da'as ha'Gadol.

(b) The words "Av Melachah" used by the Gemara and Rabeinu Chananel imply that the Melachah is included in the Aseh of "Tishbos."

(c) Tosfos in Kidushin (34a DH Ma'akeh, towards the end) discusses that issue. In brief, he concurs with your suggestion.

Thank you for your comments; I believe the issue is pretty clear now.

M. Kornfeld