There's a drasha from the word 'v'hisalamta' that sometimes you are entitled to hide yourself away from having to return a lost item, and the Gemara says that this refers to a case where it's not befitting your honor to engage with returning a particular lost item.
A few questions:
1) is the svara pshuta that a zakein WOULD have to engage to return every lost item, even when not befitting his honor, and that's why we need a pasuk to tell us otherwise? If so, how come later on, we bring a pasuk to be MICHAYEV a zakein to do kevura, even though it may not be according to his honor? What's the svara pshuta for him to be patur, that we'd need a pasuk to be michayev him?
Perhaps it's only AFTER the Torah gives a ptur by aveidah that we'd have a hava amima to patur a zakein by kevura also, and that's why the Torah must include him in the chiyuv, because without it, you'd think he'd be patur...chronologically, this is difficult since the chiyuv for zakein by kevurah in the Torah (sefer Shemos) precedes the ptur by zakein for aveidah (sefer Devarim).
If the order is relevant, then it sounds more like the sevara pshuta would be to patur the zakein from kevura, and that's why the Torah provides a drasha to be michayev him, and if so, we shouldn't need a pasuk to patur him from aveida when we get to it in Devarim, since there's no reason to think he'd be chayiv (unless you say, we might err after seeing a chiyuv by kevura and be michayev him as well by aveida...but you wouldn't make that mistake if you understood that the whole reason we needed a pasuk by kevura was because the svara pshuta was that he should be patur....)?
2) On the drasha of 'v'hisalamta', Rashi implies that when the Beraisa says, 'sometimes you hide and sometimes you're not allowed to hide', it's coming from the conflicting words in the pesukim (Devarim 22:1, 22:3) of 'v'hisalamta' and 'lo suchal l'hisalem'.
Why can't the drasha of 'v'hialamta' just be coming from the etzem conflict of the beginning of the pasuk (22:1) which starts off with the word 'lo' ('lo sireh...) which implies you're NOT allowed to do what the pasuk is about to define, and the standalone word of 'v'hisalamta' in the same pasuk, which implies you are allowed to hide away. Either way, whether we contrast 'v'hisalamta' with the words 'lo suchal l'hisalem' in 22:3 or we contrast it with the word 'lo' in the same pasuk (22:1), we're viewing the word 'v'hisalamta' independently, as if to say - you may hide yourself away.
Daniel Steinberg, Columbus, OH USA
Shalom Rav,
Your first question will take more time to answer, so let me answer the second question now and get back to you on the first one later. The simple explanation is just as you suggest, as Rashi himself commented. The Torah Temimah explains that what bothers Rashi and Chazal is why the Torah finds it necessary to counter what people may think. Consequently, they explain "b'His'alamta" literally. I believe that the key to answer your first question lies in the fact that the Poskim do not cite the Derashah, but, as I already pointed out, I need more time to think about it. Meanwhile, what I can say with certainty is that based on the principle "Ein Mukdam u'Me'uchar ba'Torah," the order of the Derashos is not relevant.
As I mentioned above, I am bothered by the fact that the Poskim do not cite Rav Yosef's Beraisa, which includes the Derashah that obligates a Zaken to perform Kevurah. I do not know whether it is because it merely presents Yisro's advice or whether it is for some other reason. As a matter of fact, they cite the verse in Ki Seitzei (Devarim 21:23) as the source for Kevurah, and the Gemara in Sanhedrin (47b) refers to it as no more than a hint (see Torah Temimah in Ki Seitzei) as to why. Consequently, according to the view that the Beraisa is talking about burying a Meis Mitzvah (see Tosfos to Bava Metzia 30b, DH Ela l'Zaken), your problem is automatically solved, since Mes Mitzvah is more stringent than other Mitzvos, and is not included in the Heter of "Zaken v'Eino l'Fi Kevodo." If it is not, then clearly the Derashah concerning Metzi'ah is fact; logically, he ought to be Chayav to perform a Mitzvah Min ha'Torah, and the Derashah obligating a Zaken to perform Kevurah (even when it is below his dignity) must be understood accordingly.
B'Virchas Kol Tuv,
Eliezer Chrysler
Thanks very much R'Chrysler.
I happened to come across the Gemara in Megillah (3b) that says, "Gadol Kavod Habriyos She'Doche Es Lo Saaseh She'b'Torah", which Rashi explains as the lo saaseh of 'lo suchal' and the drasha of 'v'hisalamta', which allows a zakein v'aino l'fi kvodo to be mis'alem from returning a lost item.
First, it wasn't clear to me if the loshon of the maymra is miduyek, that a lav is being nidche, or if the Gemara is just using the words loosely to describe what happens in that situation. Because technically, the drasha of v'hisalamta sounds like it's saying that in these circumstances, i.e. zakein v'aino l'fi kvodo, lo suchal l'hisalem doesn't apply, not that it's actually being nidche.
Also, it's interesting that the term 'kavod habriyos' is used to describe zakein v'aino l'fi kvodo circumstance in the maymra in Megillah, which the Gemara wants to draw a parallel from to explain why meis mitzvah (i.e. also kavod habriyos) would be greater than reading the Megillah, yet in Bava Metzia 30:, the Beraisa is michayev a zakein to perform meis mitzvah - seemingly two kavod habriyos circumstances coming into conflict with each other, if I'm understanding correctly!
Warm regards,
-Daniel Steinberg
Shalom Rav,
It is nice to hear from you again so soon.
Regarding your first question, I don't see the difference. If "Lo Suchal l'His'alem" doesn't apply, then it is Nidcheh, no?
Regarding your second point, your understanding is correct. And Chazal are teaching us that the Kavod ha'Mes of a Mes Mitzvah overrides all other types of Kavod ha'Beriyos.
Keep well and Kol Tuv,
Eliezer Chrysler
Shalom, R'Chrysler.
You had helped me understand the sugya of Zakein V'ainoi Lifee K'vodo and I had a ha'ara and wanted to run it by you to see if you thought it was accurate.
(It's also somewhat inyana d'yoma - as the Beraisa on B.M. 30b that teaches about a Zakein is based on a pasuk in this week's parsha...)
My original question was about the limud of the ptur for Zakein V'aino Lifee K'vodo by Hashava coming from the word 'V'hisalamta'... Is the license for the drasha from the seeming stira in the pasuk, i.e. on the one hand the pasuk says, "Lo Suchal L'Hisalem" and on the other hand it says "V'hisalamta"...(Rabbeinu Yehonason in the Shita seems to say something like this, I believe)....or is it from the standalone word "V'Hisalamta" that makes it sound like the Torah is saying, (sometimes) you should not be doing the mitzvah?
In a different inyan, Rava says at the top of 30b there is also a ptur of Aino Lifee K'vodo by Prika and T'ina; he says that someone who would be Porek and Toen for himself must also do it for others (mashma if you would not do it for yourself, you don't have to).
Rava (nor the Gemara) mentions the source for this halacha by Prika and Ti'ina.
B'stama, the source for the ptur by T'ina would be "V'Hisalamta", like the same word that appears for the ptur by Hashava. And the source for the ptur by Prika would be "V'Chidalta", which is the same theme; you're (sometimes) supposed to refrain from the mitzvah. (The Sma in C.M. 272:3 says bifyarish that this is the source for the ptur of Prika).
The interesting thing is, that neither the pasuk of T'ina or Prika have the same stira as the pasuk of Hashava (i.e. "Lo Suchal" and 'V'Hisalamta"). So it would se
em that the license to darshan the ptur for Zakein is not dependent on a stira in the pasuk (like by Hashava), as much as the theme of the standalone words that make it sound like you should not do the mitzvah under discussion.
However, it bothered me that the Gemara never quoted these drashos to patur a Zakein for Prika and T'ina, and the only place I saw a reference to its source was in the Sma mentioned above.
The Bach in Tur 242, quoting the Nemukei Yosef, seems to imply that the source for the ptur is a Svara. He asks, how is it possible for there to be a ptur by Prika for a Zakein ,when there's an inyan of Tzaar Baalei Chayim? He says that since Gadol Kavod HaBriyos, it for sure helps to be doche Tzaar Baalei Chayim passively, by merely refraining from helping.
The Prisha there, however, says that even though Tzaar Baalei Chayim is D'oraisa, once the Torah paturs a Zakein (which sounds like he may be referring to the Geziras Hakosuv, i.e. the pasuk of "V'Chidalta", like he says in the Sma) it works to patur the Zakein even in situations of Tzaar Baalei Chayim.
If my assessment is accurate, that there's a Chiluk in Mekoros for the ptur of Zakein by Prika, I thought to say that maybe the reason to learn it from the Svara of Gadol Kavod Habriyos to be doche b'Shev V'Al Taaseh (Nemukei Yosef, Bach) as opposed to from the pasuk of "V'Chidalta" (Sma/Prisha), is because of the very reason I brought up earlier, that there is no etzem stira in the pesukim of Prika and T'ina to darshan a ptur like there is by Hashava. Therefore, the only way to learn the ptur is from a Svara.
It would seem also that a Nafka Mina would emerge, depending on whether the ptur is learned from the Svara of Gadol Kavod Habriyos to be doche b'Shev V'Al Taaseh (Nemukei Yosef, Bach), which would allow you to only refrain from unloading an animal in pain, vs a Geziras Hakosuv of "V'Chidalta" (Prisha and Sma), which would doche even active Tzaar Baalei Chayim, for e.g. the activity of Okrin (Susim) Al HaMelachim that Tosfos on 32b quotes...if there is a diyuk to be made from the loshon of the Nemukei Yosef that the Bach quotes.
Does this mehalech seem possible to you?
B'chavod,
-Daniel
1) The Torah Temimah (Devarim 22:6) writes that the way the Torah uses the word "v'His'alamta" is very unusual (and only occurs in one other place, namely with the word "v'Chadalta"). One would have expected the Torah to start with the Mitzvah of "Hashev Teshivem," so why does the Torah start by telling us that the person who saw the lost ox or sheep might have thoughts of ignoring it? It must be, therefore, that sometimes, according to the circumstances, the person involved might have a justifiable reason to ignore it, so the Torah states in a positive way that sometimes one is allowed to ignore the Aveidah. On the other hand, the verse is written chiefly in the negative way, "Do not see the ox or sheep...," because the main thing that the Torah is telling us for most people is that they must not ignore an Aveidah, and the average person should not learn from the fact that a Zaken may ignore an Aveidah that he also may ignore an Aveidah even though he is not a Zaken.
2) Rashi in Chumash on the verse "v'Chadalta" (Shemos 23:5) writes that our Sages made a Derashah, "When you see, and you would refrain from assisting" -- "This means that sometimes you may refrain and sometimes you must help. How is this? - If he is an elder and it is not fitting to his honor, he may refrain."
The source for this Derashah that Rashi quotes is not clear (see Me'oros Nasan, by Rav Nasan Borjil, on Bava Metzia 32b, DH ub'Ikar, page 130). However, there is a similar Derashah in the Mechilta on Shemos 23:5: "Pe'amim she'Atah Chodel, Pe'amim she'Atah Ozev."
3) It seems that the source for Perikah and for Te'inah are explicit verses. Shemos 23:5 refers to Perikah and states "v'Chadalta." Devarim 22:4 refers to Te'inah and states "v'His'alamta."
4) I cannot understand the Sma (CM 272:5). He starts with the word "v'Chadalta," so how is it possible that he conludes with the word "Mis'alem"? If the text of the Sma would be "Pe'amim she'Atah Chodel," as the text appears in Rashi to Shemos 23:5, then it would be eaiser to understand.
5) I found, bs'd, that the Mechilta of Rebbi Shimon bar Yochai (which, I believe, is a less well-known Mechilta) states "'v'Chadalta': From where do you say that if he is a great man... that he may not do Perikah? It says 'v'Chadalta' -- sometimes you refrain and sometimes you do not refrain."
This is a source for Rashi's words (Shemos 23:5) that we learn the Petur of Zaken from Perikah from "v'Chadalta" (see Ariel edition of Chumash, Rashi page 121, note 19).
6) I personally would not be so disturbed by the fact that the Gemara does not give us the Derashah for the Petur of Zaken from Perikah. As we have seen, we do have a source for this from the Mechilta, and since the source for Perikah is quite similar to the source for Hashavas Aveidah, the Bavli did not see that it was necessary to say explicilty what the source for the exemption from Perikah is.
7) See the Torah Temimah to Shemos 23:38 who learns the Derashah of "v'Chadalta" in a similar way that he learns the Derashah of "v'Hisalamta," as I mentioned above. The word "v'Chadalta" suggests that sometimes, according to the circumstances of time and place, one should indeed refrain from Perikah. Therefore, the Torah tells us that, in a normal situation, if one does not possess a good reason, one should not refrain but should help.
8) The source of the Nimukei Yosef is the Chidushei Ramban at the very end of Bava Metzia 32b. The Ramban asks that since Tzar Ba'alei Chayim is d'Oraisa, why does the Zaken not have to do Perikah? It seems to me that the Ramban does not disagree with Rashi on Chumash (Shemos 23:5) who says that we learn from "v'Chadalta" that the Zaken is Patur. Rather, the question of the Ramban is that even though we have a Derashah from the Torah for the Zaken, why is this stronger than Tzar Ba'alei Chayim? Both of these ideas are d'Oraisa and, in fact, it is logical that Tzar Ba'alei Chayim should take precedence because the latter is something general which applies to many Mitzvos of the Torah (according to the Sefer ha'Chinuch, there are a number of Mitzvos in the Torah which are based on the concept of Tzar Ba'alei Chayim)! Therefore, I argue that the Petur of the Zaken from Perikah, even according to the Ramban and Nimukei Yosef, is not merely a Sevara but is based on the Derashah, but the question is why is the Derashah about the Zaken stronger than the Pesukim about Tzar Ba'alei Chayim?
9) In addition, I argue that since we have found a Mechilta of Rebbi Shimon bar Yochai that "v'Chadalta" teaches that the Zaken is Patur from Perikah, it is difficult to say that some Rishonim learn it is only a Sevara.
10) And not only according to the Nimukei Yosef, but also according to Rashi (Shemos 23:5), "v'Chadalta" can uproot only a Shev v'Al Ta'aseh, because Perikah is only Shev v'Al Ta'aseh.
Yasher Ko'ach Gadol,
Dovid Bloom
Thank you again for looking into this so thoroughly and clarifying the sugya of the ptur for me.
I only had final he'ara on this sugya of zakein...
At the top of 30b, Rabah states that even though there's a ptur for zakein by hashava, once you start, you're chayiv.
I have heard one reason explained, according to Rashi, is that shitas Rashi is that the aseh of hashava begins once you take the chefetz (see Rashi 26b d.h. "over m'shum hashev te'shevem", Rashi 27a, d.h. "d'asah l'yadei mashma"), and the ptur of zakein by hashava is only for the lav of lo suchal, so since there's no ptur for of zakein for the aseh of hashev, mimayla you become chayiv once you start.
(If this mehalech in Rashi is correct, I have a bit of a question on Rabah later in the same Gemara on 30b telling Abaye that he became chayiv in the mitzvah of hashava after just throwing something at the animal? Aren't you only chayiv after it comes to your hand?)
My main he'ara, is how Rabah's chiddush of a zakein starting the mitzvah of hashava and having to finish relates to the ptur of zakein by prika and ti'ina - would a zakein also have to finish loading/unloading once they start?
The source for the ptur by zakein by ti'ina is not stated outright in the Gemara. Pashtus, like we've been corresponding, the source is the word in the pasuk 'v'hisalamta'. If so, you should also have to finish if you started to load, because the ptur is for the 'lo sir'eh' part of the mitzvah, not for the aseh of 'hakem takim'.
The source for the ptur of zakein by prika is also not stated. Pashtus, it's the word 'v'chidalta', also like we've been saying.
If so, it would come out according to the above mehalech in Rashi, you should be patur from finishing even after you start unloading. The reason is, there's no lav by prika. The pasuk says 'ki sireh', not 'lo sireh' like it does by ti'ina. So if there's only an aseh by prika of 'azov ta'azov', then the ptur for zakein would apply to the entire mitzvah!
Does that follow?
Thank you again, R'Dovid.
This was very thorough remains very helpful in clarifying the sugya for me. At risk of beating a dead horse (some pun intended:), I wanted to share with you a Ritva Yeshanim that I came across on 32b who states bifayrish that the ptur for zakein by prika is from the word "v'chadalta" - as you've been saying, and as you have found in the Mechilta.
And in an interesting twist (in his first teretz) the Ritva Yeshanim explains that the very same word, "v'chidalta", is used by R'Yosi HaGlili to exclude having to unload the animal of an Akum, i.e. the Ritva Yeshanim explains, that the word "v'chadalta" is R'Yosi's source for Tzaar Baalei Chaim not being a D'oraisa requirement!
Thank you again and Gut Chodesh!
Warm regards,
-Daniel Steinberg
1) I did find (on the Otzar ha'Chochmah) this Mehalech mentioned by a couple of contemporary writers. However, I have a more basic difficulty with the Pshat. Rashi (26b) writes that one transgesses "Hashev Teshivem" as soon as he "takes" the item. But Rava said that if he struck the item he was obligated to return it. I think that striking is not the same as taking. Taking implies that the item is in his possession but striking does not signify possession. It seems that when the Gemara says he struck it, this is a way of giving an example of involvement with the animal without possession.
2) Here are some explanations of Rava given by earlier Mefarshim. The Pnei Yehoshua (here, DH b'Gemara Ibaya) writes that once he struck the animal and started returning it, this means the Zaken was Mochel his honor. Therefore, we say he must continue with the Mitzvah.
3) According to the Pnei Yehoshua, if the Zaken started to do Perikah or Te'inah, he must continue since he has foregone his honor.
4) The Rambam (Hilchos Gezeilah 11:14) adds one word. He says he must continue because he has started with the Mitzvah. This reminds us of what Chazal say, that "if someone started a Mitzvah, we say to him, 'Finish it!'" (See Mishnah Berurah OC 581:14.)
5) This is indeed the way the Taz on Shulchan Aruch (end of CM 263) seems to understand the Rambam. He adds that even if he did not start in the normal way of returning a lost item, but he was more like playing around, we still tell him to finish. This is what happened with Abaye and the goats.
6) The same applies to Perikah and Te'inah. If the Zaken starts the Mitzvah, we tell him to finish it.
7) Just to remind ourselves: "v'Chadalta" mentioned by the Tosfos Yeshanim (26b) is in fact a Rashi in Shemos 23:5.
Chag Kasher v'Same'ach,
Dovid Bloom