Issur Hana’a (1) Pesachim 21b

  • Rav Ezra Bick
This week we begin the topic of issurei hana'a. You should prepare the gemara from 21b, "Amar Chezkia" to 22a, "Chulin shenishatu ba'azara lav d'oraita he". The immediate question is what is the source for declaring something assur b'hana'a, since this is never explicit in the Torah. The second-level, and not less important, question is what is the nature of a hana'a prohibition, given the derivations proposed by the gemara, and what is the relationship between issur hana'a and issur achila.
Rambam: Ma'akhalot Assurot 8:15-16; 9:1; Chametz U-Matza 1:2 Rambam: Sefer HaMitzvot, lav 186,187 (very important)
Rambam: Commentary to the Mishna, Kritut, 4:3 
The selection from Sefer HaMitzvot:
            The gemara (21b) seeks the textual (Biblical) source for the issur hana'a of chametz. Chizkiya suggests an answer to this question which is specific to the prohibition of chametz (we shall deal with this in a future shiur). R. Abahu, however, answers with a general rule for determining issur hana'a throughout the Torah, of which chametz is only one example. According to R. Abahu, when the verb "akhal" appears in one of three admonitory forms, it includes both a prohibition against eating and a prohibition against deriving non-gastronomic benefit from the food. Today, we shall discuss this rule.
            This rule is learnt out either from the verses relating to neveila (an animal which died not by shechita) or tereifa (an animal with a mortal deficiency - even shechita does not render such an animal kosher). The derivation from tereifa is straight-forward - the passuk explicitly permits benefit from tereifa, by permitting it to be given to one's animals. Since it says, "You may throw IT ("oto") to the dog," the gemara derives, "only IT is permitted, whereas all other forbidden foods are prohibited in hana'a as well (except for those which are explicitly permitted - a rather extensive list, as we shall see in the coming two pages of gemara). This verse could, thus, be understood as the direct source, by implication, for the universal issur hana'a. It is as though it were written here, "Do NOT benefit from any issur EXCEPT for treifa."
            The derivation from neveila appears somewhat more abstruse. The Torah expressly permits one to sell, or give, a neveila to non-Jews. The gemara asks why it is necessary to expressly permit such behaviour, since there is no verse which forbids it. From this the gemara concludes that apparently the verb "akhol" (eat) means to have other benefits as well, unless explicitly restricted to the narrow meaning. Thus, had the Torah not mentioned that is permitted to gain benefit from a neveila, we would have deduced that it is indeed forbidden. Hence, in chametz for example, the source of issur hana'a is not the verse of neveila, but the verb "lo yei'akhel" written by chametz. The verse by neveila is a paradigm case which teaches the correct meaning of "akhol" elsewhere.
            Tosafot (s.v. kol) suggest that, accordingly, one who merely BENEFITS from chametz should also be liable for karet as the verse states "ki kol OKHEL chametz ve-NIKHRETA," (one who is "okhel" - from the root "akhal" - chametz, shall receive karet). As mentioned previously, the root "akhal" includes gaining benefit. The Ri answers that this particular form of "akhol" - "okhel" - does not include issur hana'a. The language of the Tosafot seems to imply that only "lo tokhlu" has the extension of issur hana'a, since that is the exact verb present in neveila. Apparently "lo tokhal" and "lo yei'akhel" are simply variant forms of "lo tokhlu," equivalent semantically, so they are included as well, but not "okhel," which is a different semantic unit.
            The Ran explains that if the verse in neveila teaches us the meaning of the word "tokhlu," the answer of the Ri makes no sense. The Ran instead says we should treat it as a source of a law (din), not a source of meaning (mashma'uta). The verse of neveila does not change the meaning of the word "tokhlu," which MEANS to eat; rather it implies a law, that all things prohibited with this word are also prohibited in hana'a. This basically makes the source from neveila the same sort of derivation as the source from tereifa.
            All this is merely an introduction to the main point of this week's shiur, the explanation of the Rambam. A simple reading of the gemara restricts itself to the realm of the derivation, either a derivation of linguistic meaning, or a derivation of a particular law. The Rambam however understands that the gemara is teaching us something about the NATURE of issur hana'a itself, and not merely the source of issur hana'a.
            In the Sefer Ha Mitzvot (Lo Taaseh, 187), the Rambam addresses the question why he counts eating meat-and-milk (basar be-chalav, BBCh), and cooking BBCh as two separate mitzvot, but does not consider having hana'a from BBCh as a third, separate, prohibition, even though there are three distinct verses for these three prohibitions. Notice that we are here speaking of a prohibition not actually included in R. Abahu's principle - in this case, the issur hana'a was not derived from the verb "akhol," which is not found in BBCh, but from the triple repetition of the verse "You shall not cook a kid in its mother's milk." The Rambam explains:
It is proper that I here refer to a great principle which   no one has previously discovered.... Know that an issur hana'a should not be counted as a mitzva in its own right, because it and the issur akhila are a single unit,      for akhila (eating) belongs to the category of hana'a (benefit). Saying of something that it "may not be eaten" is giving one example of the hana'a, meaning that he should not have any benefit from it, whether eating or another kind (of benefit). This is what the Sages have   said, "Wherever it is written lo tokhal or lo tokhlu both issur akhila and issur hana'a are included... (R. Abahu's statement in Pesachim).... Were we to count two mitzvot in BBCh, we should have counted two mitzvot in chametz and orla and kil'ai ha-kerem....
            The Rambam seems to say that R. Abahu's rule (of derivation) is based on a proper understanding of issur akhila; namely that it itself is really an issur hana'a, a prohibition on the hana'a called akhila (rather than a prohibition on the physical act of eating). This allows us, by analyzing the verse in neveila, to reach the conclusion that the simple statement of lo tokhlu is using akhila as an EXAMPLE of hana'a; hence, prima facie all forms of hana'a are prohibited.
            Apparently, the Rambam found that without this logical premise, R. Abahu's rule is absurd - how can akhila mean something else? The answer is that it does not MEAN hana'a, it means "hana'at akhila," the benefit of eating, which now is seen as a prime example of the category of hana'a.
            This is a very important point. Most prohibitions prohibit specific actions, such as lighting a fire on Shabbat, or killing someone, or planting in the sabbatical year. We pointed out at the end of last week's shiur that hana'a is different; it seems to prohibit a STATE rather than an action. (In English this is more apparent than in Hebrew, since "leihanot" cannot be translated as a simple verb). But eating could have been defined as an action; e.g., chewing and swallowing. The Rambam is saying that if that were the proper definition of what is prohibited by lo tokhlu, there would have been no possibility of extending it to include hana'a. By defining the prohibition in terms of a state - hana'at hana'a - it became possible to unify the categories of akhila and hana'a in two one. The Rambam's conclusion is that for that reason, where both akhila and hana'a are prohibited, they should be counted as a single negative mitzva. Note that this is true not because in the particular case they were both derived from a single verse - for BBCh this is not the case (it nowhere says, lo tokhal BBCh), but because they are both logically members of the same category; or rather, as it would appear from the Rambam's formulation, akhila is a member of the category of hana'a.
            The Rambam has an interesting opinion concerning issur hana'a that I think may be explained in light of this principle.
            The Rambam (Ma'akhalot Assurot 8:16) writes: "Any food which is assur be-hana'a, if one had hana'a from it but did not eat it; for instance, if he sold or gave it to a non-Jew, or (fed it) to dogs, he does not receive lashes (malkot)." The Rambam consistently follows this rule concerning all foods which are assur be-hana'a - in every chapter of Hilkhot Ma'akhalot Assurot which deals with issurei hana'a, as well as chametz, the Rambam writes that he receives malkot if he ATE from it (Ma'akhalot Assurot 9:1; 10:6-7; 10:9; 11:1; Chametz u-Matza 1:1-2). Notice that the Rambam states that this is true of ALL issurei hana'a, and in fact explicitly reiterates it for BBCh (9:1). This seems to parallel his refusal to list the issur hana'a as a separate mitzva, and I believe the reasoning is similar: The Rambam holds that where a prohibition has a central, main, standard (and Torah explicit) form (ikkar ha-lav), and an extension to other similar cases, one receives malkot only for transgressing the main form. In this case, we see that in the standard formulation, the Torah refers to issur hana'a as lo tokhlu; from this the Rambam derives that in all issurei hana'a, including those where the Torah did not express the issur in the language of akhila, the main form is eating, and only for eating does one receive malkot. Notice that the preceding halakha in the Rambam to the one we are discussing is his citation of the principle of R. Abahu (8:15). R. Abahu's rule, which, as we have seen, is not a linguistic one alone, but is based on the nature of the relationship of akhila to hana'a, is the basis for the Rambam's ruling concerning the non-imposition of malkot on issurei hana'a, even in cases, like BBCh, where R. Abahu's rule is not itself operative.
            Indeed, if there is an issur hana'a that is not an extension of akhila, the Rambam will have no reason to oppose the punishment of malkot. This is the case for objects of idolatry (Hilkhot Avoda Zara 7:2): "An idol and its service-objects and what is offered before it and anything done for it are assur be-hana'a... and one who has hana'a from one of these is lashed twice...." This is not a prohibition of FOOD, but a direct prohibition of benefit from an object; hence the issur hana'a is not an extension of an issur akhila but an original prohibition in its own right. In this case, as in any negative prohibition, one who transgresses receives malkot.
            In both of these two positions of the Rambam, the enumeration of hana'a as a separate prohibition by BBCh, and not receiving malkot for issurei hana'a, we can understand the Rambam to be saying that where something is assur both in akhila and hana'a, there is really only ONE prohibition - hana'a - both through eating (hana'at akhila) and any manner. Eating is the primary form of hana'a and therefore is first of all the standard literary choice of the Torah to express the issur hana'a, and secondly, the form which incurs malkot when transgressed. In any event, being two forms of the same basic state, one cannot count akhila and hana'a as two separate prohibitions.
            There is one more statement of the Rambam in which he draws a conclusion concerning the relationship between akhila and hana'a from the rule of R. Abahu, but one which does not immediately appear to be identical with the one we have drawn above. In his Commentary to the Mishna (Kritut 3:4), the Rambam discusses the principle that "ein issur chal al issur." In order to understand the Rambam, it will be beneficial to first review this principle. (You should follow the Rambam inside. The text is available from the website, cited above, if you cannot obtain a copy). 
            If an object is already prohibited for a specific reason, and only then the conditions for an additional prohibition obtain - the second prohibition does not come into effect (one will receive only one set of malkot, for instance). The Rambam's example of this is if one cooks neveila meat in milk - since it is neveila, the additional prohibition of BBCh does not obtain. (We shall return to this example later). However, this is only true if the second prohibition does not add anything to the first; however, if the second is more severe in some sense than the first (issur mosif), or has a wider range (applies to more people, or to more of the object, than the first, issur kolel), it applies in addition to the first, and the object is DOUBLY assur. The example of issur mosif is an animal which becomes hekdesh; the forbidden fats are assur be-akhila and when the animal is sanctified, they are now assur be-hana'a (me'ila), so there is an additional severity added. The example of the issur kolel is if the animal meat became tamei; before only the fats were forbidden and now the meat is forbidden as well, so even the fat is doubly assur.
            Now the Rambam asks, why isn't cheilev be-chalav (forbidden fats cooked in milk - it is not easy to read that in Hebrew without vocalization marks) an issur mosif, since cheilev is an issur akhila while BBCh is an issur hana'a? How is this different from cheilev and hekdesh, where it was defined as an issur mosif due to the addition of issur hana'a on top of an issur akhila? The Rambam's answer, which he calls "an amazing point" (nekuda nifla'a) is to invoke R. Abahu's rule:
The answer to this, is that BBCh is only assur be-hana'a because the Torah prohibits its being eaten, according to the principle that we have explained that whatever is   assur be-akhila is assur be-hana'a unless the Torah specifies otherwise [Note: this rule is not invoked textually in BBCh, as the term lo tokhlu does not appear there]. There is not one verse which prohibits its being eaten and one which prohibits benefit [The Rambam means legally, in the Sefer HaMitzvot sense; not in terms of textual sources], but both things together are prohibited in BBCh. Therefore, since ein issur chal al issur, BBCh   does not obtain on top of neveila (or cheilev).
            The Rambam's point here is not clear. We are not interested in this case in comparing the issur hana'a of BBCh to the issur akhila of BBCh (where the Rambam can say that they are both basically the same) but to the issur akhila of neveila or cheilev, which are not assur be-hana'a. The fact that hana'a is an extension of akhila in the case of BBCh does not seem to explain why it is not an addition (mosif) to the issur akhila of cheilev.
            The answer is that the Rambam is defining the issur hana'a of BBCh as issur akhila-plus. Logically, the advent of an issur hana'a is that of an issur akhila, and only secondly, by extension, an additional issur hana'a. This follows from the fact that the Torah generally uses the term akhila to prohibit hana'a, and this is now the corrected and more accurate understanding of why akhila is the "ikkar," the main form which elicits malkot. BBCh is assur be-akhila (hana'at akhila), and hence, since the benefit of akhila is forbidden, all other benefits must also be forbidden. When determining whether something is an issur mosif or not, for the purposes of ein issur chal al issur, we do not measure the final result, but compare the nature of the essential issur. The second issur, as it comes to be "chal," must be greater than the first. Since BBCh, as it comes to be chal, is essentially an issur akhila, we say that ein issur chal issur. (Me'ila, like avoda zara, is a non-food issur hana'a; it applies to benefit from anything that has been sanctified. Hence, even when applicable to a food, the prohibition is a direct one of issur hana'a, and is therefore "mosif" on issur akhila).
            Again, it should be noted that the Rambam here is speaking about a prohibition to which R. Abahu's rule does not technically apply. Nonetheless, the Rambam has derived from R. Abahu an understanding of what issur akhila means, and what the relationship between it and issur hana'a is, irrespective of whether the particular issur belongs to the family of lo tokhlu etc.
            It is now much more clear WHY the Torah expresses issur hana'a with the verb "tokhlu." What appears from the gemara to be an arbitrary derivation of an additional, and unexplicit, prohibition, is, according to the Rambam, a logical extension of the prohibition of eating. Lo tokhlu means "do not eat." We understand the action of eating to mean not the physiological, muscular activity of mastication and swallowing, but the state of hana'at akhila. That is what the Torah has explicitly prohibited; that is what will incur malkot if transgressed, and that is what serves as the basis for comparison when determining if a subsequent prohibition is "mosif" on an earlier one. However, we understand on our own, without an explicit prohibition, that if the Torah has prohibited hana'at akhila, then other forms of hana'a are also prohibited; in other words, the issur akhila itself prohibits, by extension, all hana'a. Therefore, the food is prohibited in hana'a as well, though this is not a separate prohibition, nor is it an "addition" to the scope of the issur itself.
            There is one problem with the Rambam's approach to our sugya remains, and that is his ruling in regard to chametz. A proper understanding of that ruling will also clarify even more the point we have tried to explicate today - but I am leaving that for next week.
            One final point about this gemara. It is apparent that selling is a form of hana'a - in fact, that is THE form of hana'a mentioned in the Torah (when permitting neveila). (See also Rashi, s.v. "lo yei'akhel" [Chizkiya], who uses this point to explain the opinion of Chizkiya). Selling is different than other examples of hana'a, since one might have thought that one is not directly benefiting from the object itself (guf ha-davar) when selling it. The actual benefit is from the money received, but the money received from the (illegal) sale of issurei hana'a is not assur be-hana'a (see Tosafot 21a, s.v. "kol"). Apparently, this is not true - the value of something is considered to be one of its aspects. Foods have taste, nutritional value, and also have, in themselves, value. Benefiting from the value, by selling it, is therefore considered to be benefiting from the object itself.
            For next week: First we will discuss the Rambam's ruling concerning chametz: Hilkhot Chametz u-Matza 1:2. See also 1,7, where a different halakha is learnt from the verb-form "lo yei'akhel, Kesef Mishneh ad.loc.
            The next two and half pages of gemara (until the end of 24a) consist of a tour of all the food prohibitions in the Torah to see how they fit in to R. Abahu. We will learn this section relatively quickly, stopping only to expand on individual points. For next week, learn the sections on Chullin she-nishchatu ba'azara, gid hanasheh, and dam (up to 22b, line 6). 
Chullin she-nishchatu ba'azara: Tosafot, s.v. "chullin."
Gid hanasheh: Tosafot, s.v. "Ve-Rabbi Shimon;"
Rambam, Hilkhot Ma'akhalot Assurot 4,18; 8,5-6; 16,6.