Mitzva Ha-Ba’a Ba-Aveira, Revisited

Several gemarot in Shas (e.g. Sukka 30a) describe an interesting phenomenon known as mitzva ha-ba’a ba-aveira, in which the execution of a mitzva is plagued with the coincidence with an aveira, and therefore disqualified. Though Tosafot in Sukka (9a) famously claim that this disqualification is only Rabbinic in nature, the unqualified application of this principle implies that it is de-oraita. In fact, several pesukim are proffered as possible sources for this intriguing halakha. This shiur will explore the nature of this principle.

An interesting Yerushalmi delimits the application of mitzva ha-ba’a ba-aveira thereby asserting a model for understanding this rule. The Yerushalmi (Shabbat ch. 13) discusses the case of someone who tears keriya for the deceased on Shabbat, thereby violating a Shabbat prohibition while attempting to perform the mitzva of tearing a garment for deceased relatives. We would expect, this mitzva to be disqualified, since it occurs through the violation of a prohibition. The Yerushalmi, however, states that the mitzva is not ruined by the aveira. The Yerushalmi distinguishes between this case and that of someone who eats stolen matza (who, due to mitzva ha-ba’a ba-aveira, does not fulfill a mitzva): In the scenario of matza, the matza itself is an aveira, whereas in the scenario of keriya [only] the person performed a violation.

Apparently, the Yerushalmi’s version of mitzva ha-ba’a ba-aveira is based on the “overlap” between the status of mitzva and aveira status upon the same item targeted as the cheftza shel mitzva, (the item utilized to perform the mitzva). Certain mitzvot are purely activities, requiring no object (such as mitzvot of emotion, thought, or speech). Others are performed upon an item, but that item is not a cheftza shel mitzva. For example, the aforementioned mitzva of tearing keriya must be performed upon a garment; otherwise, it would not be considered an act of tearing valuables. Being that any garment can be chosen it is not considered a cheftza of a mitzva. Still other mitzvot employ a particular object that must be crafted or otherwise prepared under clearly defined parameters. This list of cheftza shel mitzva includes tzizit, tefilin, lulav, sukka, matza, etc. The principle of mitzva ha-ba’a ba-aveira disallows this mitzva object to be an object that was previously involved in an aveira. The mitzva object cannot be tainted by previous association with aveira. However, mitzvot that do not involve a specific mitzva article are unencumbered by this rule. Accordingly, matza can’t be stolen; if it were, it would be subject to disqualification based on mitzva ha-ba’a ba-aveira. Tearing for the deceased, in contrast, does not involve a cheftza shel mitzva, and it is therefore unaffected by aveirot performed while executing the mitzva.

Evidently, this view of mitzva ha-ba’a ba-aveira was also adopted by the Rambam, who excludes the mitzva of shofar from mitzva ha-ba’a ba-aveira concerns. In Hilkhot Shofar (1:3), the Rambam discusses the case of a stolen shofar and validates the mitzva despite the theft. As we have previously discussed (https://etzion.org.il/en/talmud/studies-gemara/talmudic-methodology/halakhic-definition-mitzva-shofar), the Rambam defines the mitzva of shofar as hearing a sound, rather than as a process of creating a sound from an instrument. This definition disregards the shofar as a cheftza of a mitzva. Since the only cheftza of the mitzva is the abstract sound, which cannot be stolen and is therefore cannot be tainted by an aveira, no concerns of mitzva ha-ba’a ba-aveira apply. 

If this definition of mitzva ha-ba’a ba-aveira is true, we might be able to constrict the principle not only based on the type of mitzva involved, but also the types of aveirot that ruin a mitzva.

An interesting gemara in Pesachim (35b) discusses the case of matza produced from tevel crops, from which teruma was not yet selected. While discussing the opinion that disqualifies this mitzva, the gemara attributes the reason to an internal matza consideration. Several Rishonim question the need for an independent matza-based disqualification. Why shouldn’t this matza be disqualified because it is a mitzva ha-ba'a ba-aveira? Several solutions are suggested, but an interesting solution of the Ramban may reflect the “cheftza-based” understanding of mitzva ha-ba'a ba-aveira. Since the tevel status can easily be resolved (by performing the natural and pending act of separating teruma), no mitzva ha-ba'a ba-aveira concerns apply. The opportunity for simple tevel resolution does not mitigate the current severity of the prohibition; in fact, according to many Rishonim, ingestion of tevel is punishable by mita bi-yidei shamayim, similar to consuming teruma. Presumably, the ease by which the tevel status can be removed reflects the fact that the object is not defined by its current but transient tevel identity. Since the chefetz is not defined as tevel – despite being forbidden to eat – there is no overlap between the item designated as a mitzva (matza) and an aveira designation and thus no mitzva ha-ba'a ba-aveira issues apply.

R. Lichtenstein zt"l suggested a different reason that a tevel status would not ruin the mitzva performance of matza. Unlike a stolen item that has undergone an ACTUAL aveira or that has been worshipped as avoda zara, tevel has not been involved in a halakhic crime; it is naturally forbidden. Perhaps only items that have been involved in a criminal process of aveira would taint the cheftza of a mitzva.

Either way, absence of mitzva ha-ba'a ba-aveira concerns for tevel may be based on viewing mitzva ha-ba'a ba-aveira as an overlap between the cheftza of the mitzva and the identity of aveira. Tevel may not possess an identity of aveira.

A comment of Tosafot (Sukka 30a) suggests a very different understanding of mitzva ha-ba'a ba-aveira. Tosafot comment on the absence of a mitzva ha-ba'a ba-aveira problem in the case of arba minim that were worshipped as avoda zara. Unlike a stolen item in which the aveira enabled the mitzva, the aveira of avoda zara did not facilitate the mitzva; it is merely peripheral to the mitzva. Without stealing the lulav, a person could not have performed the mitzva; had this lulav not been worshipped, the mitzva may still have been executed.

Tosafot assert that mitzva ha-ba'a ba-aveira only disqualifies the mitzva if the aveira CAUSED the mitzva. Tosafot are not interested in gauging the overlap between a cheftza shel mitzva and an identity of aveira. The disqualification of mitzva ha-ba'a ba-aveira is not based on tainted identity of the cheftza shel mitzva, but rather on any ACT of mitzva that is associated with an aveira. Causality (if the aveira enables the mitzva) entails association between the mitzva and aveira, which ruins the mitzva.

This definition of mitzva ha-ba'a ba-aveira as stemming from an association between the act of mitzva and the act of aveira may also be the basis for an interesting position of the Ra'avad. As noted above, the gemara disqualifies a lulav of avoda zara for independent reasons, without citing mitzva ha-ba'a ba-aveira concerns. Noting this absence, the Ra'avad asserts (in his 40 page collection of the laws of arba minim) that an etrog of avoda zara would be disqualified due to mitzva ha-ba'a ba-aveira. Since the etrog is so aromatic, the person will inevitably smell it and violate the issur of deriving pleasure from avoda zara. Since an aveira will be inevitably performed simultaneous to the performance of the mitzva, the mitzva itself is invalidated.

Again, the Ra'avad is not concerned with the overlap between the cheftza shel mitzva and the identity of aveira. Instead, he probes association between the performance of a mitzva and a violation of an aveira. For Tosafot, causality was necessary to entail an association. For the Ra'avad, even simultaneity is sufficient.

Interestingly, the Meiri (in his well known sefer called Magen Avot) cites this Ra'avad with a nuanced difference: since the smell of the etrog is so enticing, a person will inevitably smell the etrog after completing the mitzva. The Meiri does not even require simultaneity between the mitzva and the aveira. Even if the aveira is violated AFTER the mitzva, since the aveira and mitzva are inseparable, the aveira taints the performance of the mitzva.

Tosafot the Ra’avad and the Meiri all defined mitzva ha-ba’a ba-aveira very differently from the earlier stated tainting of the mitzva through the identity of aveira.  By contrast, these Rishonim were concerned with the association between the act of a mitzva and a criminal act of aveira. For Tosafot causality associates the two acts; for the Ra’avad simultaneity creates this association; for the Meiri inevitability is sufficient to create this linkage.