Pesachim Chapter 2, 22b-23a

  • Rav Ezra Bick

For the next two pages of gemara, there is no central topic for discussion. The shiur will relate to several topics, noting points to consider as you continue in the gemara. Only on 24b will we return to the usual format.

1. Selling, Giving, and Earning Money from Issur Hana'a

We have already seen that it is forbidden to sell issurei hana'a. In fact, the selling of neveila to a non-Jew is the sign that neveila is NOT assur be-hana'a. According to Rashi, the derivation of Chizkiya is also based on this point: The prohibition of "lo yei'akhel" entails not doing anything which will lead to eating, which refers primarily to selling one's chametz in order to buy a permitted food. Both these cases indicate that selling is considered hana'a; indeed, the prime case of hana'a. Similarly, the Rambam (Ma'akhalot Assurot 8:16) exemplifies hana'a by writing: "If he benefited without eating; e.g., he SOLD or gave it to a non-Jew or to dogs...."

Tosafot (22b s.v. ve-eiver) explain that giving it away for free is also prohibited, as the recipient will feel a sense of gratitude, and earning good-will is no different from earning money. Hence, the only thing that can be done with something that is assur be-hana'a, is to bury it or destroy it.

However, from the Rosh's interpretation of the gemara in Nedarim (47b s.v. dilma) it appears that it is merely questionable whether one may sell issurei hana'a or not - as opposed to being definitely forbidden. According to the Rosh, the gemara does NOT reach a definitive conclusion concerning this issue. The Rosh's stance is problematic as the derivation from neveila seemingly rules out the possibility that it would be permitted to sell issurei hana'a. R. Elchanan Wasserman (Kovetz Shiurim, Pesachim 94) suggests an alternative explanation of the derivation from neveila, to accommodate the Rosh. As mentioned earlier, Rashi (and the Rambam, see 8:15) interpret the very fact that neveila MAY be given to the non-Jew to indicate that it is not assur be-hana'a (they assume that if it were assur be-hana'a, it would be prohibited to sell it). The Rosh apparently explains the din of neveila differently. If the neveila were assur be-hana'a, it would be IMPOSSIBLE to sell it, properly speaking, since issurei hana'a are not considered to be property in regard to sale. (There is a disagreement whether issurei hana'a are not property at all, or only that they cannot be sold by the nominal owner). The proof of the gemara is from the use by the Torah of the WORD "makhor" (sell), not from the permissibility of the sale. (Most achronim find it difficult to believe that the Rosh actually considered it possible that the sale of issurei hana'a is permitted; see Keren Ora, Nedarim ad.loc.).

Logically, the benefit from a sale is different than other benefits. When you eat a food, or put it on your skin as a salve or the like, you are deriving benefit directly from the object itself. This sort of hana'a is analogous to eating, where one ingests the food. The Rosh may have felt that it is possible that a sale does not consist of "hana'a miguf hachefetz" (benefit from the object proper). The object is a cause (gorem) of hana'a, but the hana'a does not COME from it. Other rishonim may simply disagree with this conclusion, but not with the premise that hana'a must derive from the object itself. They simply argue that VALUE is considered to be one of the aspects of an object, like its taste, temperature, healing properties, etc.; hence a sale is considered to be the 'extraction" of the value from "within" the object.

Tosafot (s.v. ve-eiver) however, widen the scope of "benefiting" significantly. Tosafot point out that the case of giving eiver-min-hachai to a non-Jew is speaking of a limb that belongs to the non-Jew. Tosafot explain that there is nonetheless an action of benefiting here, as it is considered to be "mistaker be-issurei hana'a" - earning money from issurei hana'a (and, by the extension mentioned above, it is therefore prohibited to do it for free, as one earns good-will). In other words, it is prohibited to take a job moving assur be-hana'a objects. Now here, obviously, one does not obtain benefit directly from the object. The money is paid to you not as a value of the object, but as compensation for the effort. If this is prohibited, it implies that one may not USE issurei hana'a in order to derive benefit (from anywhere), even without benefiting directly from the forbidden object. Selling issurei hana'a is surely not less an action of using the object to derive benefit than hiring oneself as a laborer to move it.

Although Tosafot state that it is prohibited to be "mistaker be-issurei hana'a," as an obvious fact, there is no clear source for this. Tosafot refer us to Avoda Zara (daf 62), where the Mishna states that in a case of mistaker be-avoda zara, the remuneration is prohibited. This is clearly a "chumra" of avoda zara, as the gemara explains. Tosafot assumes that it at least indicates that the action taken to receive the remuneration must have been prohibited; the gemara's problem relates to the additional extension of issur hana'a to the money received. (The general principle is that it is prohibited to sell issur hana'a; if one did so, he has already received benefit, and the money, once received, is not assur be-hana'a).

It is clear from our Tosafot that this prohibition is de- oraita (Tosafot are explaining a gemara which refers to a verse in the Torah). The Achronim point out that there are several cases in the Talmud where someone receives a salary to do something for hekdesh (which is assur be-hana'a). If the prohibition were only mi-derabbanan, we could explain that the prohibition is waived when the service is performed for the sake of hekdesh. However, if the prohibition is mi-de-oraita, it is difficult to understand why it is permitted to work for hekdesh for a salary. (For free, it should be permitted, since one does not earn good-will from hekdesh). Another similar case is that of undertakers, who receive remuneration for burying, even though a dead body is assur be-hana'a (see Sdei Chemed, 4:207). Here again, if the prohibition were only mi-derabbanan, it would be possible to permit it in order to fulfill the mitzva.

The Chelkat Yoav (Y.D. 17) advances the following theory: It is forbidden to receive remuneration for work done with issurei hana'a only if the object of the work is to give direct benefit to the one paying the remuneration (even though he is not prohibited; e.g., if he is not Jewish). Hence, to work for a non-Jew and make an object which is assur be-hana'a (to me) more accessible to him (thereby advancing his direct hana'a from the object itself) is forbidden. In the case of hekdesh and burial, there is no direct benefit to anyone from the object.

This appears to be a very strange compromise. It is not as if it is forbidden to advance the benefit to the non-Jew. Firstly, why should that be forbidden, since the non-Jew is permitted to benefit. Secondly, if that were so, the remuneration would not be essential. Clearly, what is forbidden is to receive remuneration, which is considered my benefit. But then why is HIS direct benefit relevant?

Apparently, the Chelkat Yoav believes that essentially one must have direct benefit from the object itself to be considered as transgressing an issur hana'a. If I am paid to help anyone have that kind of benefit, the hana'a I receive from the remuneration serves to relate his hana'a to me, as though I were having direct benefit. The payment that I receive is the equivalent and parallel to his hana'a and is therefore viewed as DIRECT hana'a from the object. This is true even though from the economic point of view, he is not paying me in return for his receiving hana'a, but in return for the effort I expended. To be honest, I don't exactly understand the logic here. I will leave it to yoto think about this for a while and decide for yourselves.

I think there is another solution. The two cases we are trying to explain are not the same kind of issurei hana'a we are learning about in Pesachim. They are not foods which are forbidden because they are not good for you. Hekdesh is not too bad for you, but too good for you. Here it makes sense to say that one is forbidden to have hana'a from the object itself, miguf hachefetz. It is forbidden to indulge in hekdesh, which is reserved, so to speak, for God. The prohibition of a dead body is derived as well from hekdesh, specifically from egla arufa. There is a kind of sanctity associated with it, which reserves it, places it aside, out of reach. Indirect hana'a is not forbidden here. Being paid to move hekdesh, or to place a body in the ground, is not an act of "indulging" in forbidden objects. Our issurim on the other hand, are objects which God has decreed should not contribute to our lives. They are objects that are "no good," that should be gotten rid of. Here, Tosafot says that it is forbidden to make use of them, and using them to make money is also a utilization of an object that should not be used.

2. Lifnei Iver

I do not wish to review the entire topic of lifnei iver here, but only one point that is directly connected to our sugya. It is apparent from the case here that lifnei iver applies to a non-Jew; it is prohibited to aid a non-Jew transgress a prohibition (one that he is included in, such as eiver-min-hachai).

Lifnei iver includes two actions. It is prohibited to aid in the commission of a transgression. It is also forbidden "to give bad counsel to one who is blind" (Rambam, Hilkhot Rotze'ach 12:14; Chinukh 332). The Minchat Chinukh derives from our gemara that it is forbidden to "give bad counsel" to a non-Jew. If the first form of lifnei iver applies to non-Jews, then so does the second. The language of the Chinukh however is, "Not to mislead a JEW by giving him bad counsel." (The Rambam merely writes that it prohibited "to mislead the blind").

A similar issue is the subject of famed responsa of the Chakham Tzvi (R. Tzvi Ashkenazi), concerning gezel akum (stealing from a non-Jew). The Maharshal had claimed that the Rambam's formulation of the laws of stealing implies that the Torah prohibition to steal includes stealing from a non-Jew (Hilkhot Gezeila 1:2; see the Kesef Mishneh ad.loc.). On this the Maharshal had expressed his amazement: "This is astonishing in my eyes, for the Torah generally and particularly was given to the Jews." The Chakham Tzvi attacks this opinion at length (responsa 26), arguing that bad traits are bad traits, and if stealing is bad, it makes no difference who one steals from.

Many Achronim have attempted to defend the Chinukh from the Minchat Chinukh by distinguishing between the two types of lifnei iver. The prohibition to give bad counsel is a regular prohibition "bein adam le-chaveiro;" it is prohibited because the harm that results to the other. Indeed, they claim, such prohibitions in the Torah are usually formulated as being between "man and HIS FELLOW," with the term "rei'akha" or "achikha" being used. This is what the Maharshal meant - social prohibitions are properly speaking applicable only within society, meaning Jewish society (there are extra derivations to prohibit particularly bad actions in regard to non-Jews, but the original prohibition itself does not include non-Jews). However, the prohibition of aiding the commission of a transgression is not one that belongs to the family of not harming another. After all, the other in this case is "harming" himself. Rather, by aiding in the commission of a transgression by another, one is to some extent becoming a partner in the sin. This naturally applies whether the other is Jewish or non-Jewish (See R. Elchanan Wasserman, Kovetz Shiurim, Pesachim 95; Responsa Arugat HaBosem YD 235).

The Minchat Chinukh is arguing against the basis of this distinction by the very fact that he compares the two kinds of lifnei iver. He assumes that aiding in the commission of a transgression is just a particular kind of "misleading;" i.e., hurting, the blind. There is no real distinction, in his opinion, between the two EXAMPLES of lifnei iver.

This question, whether lifnei iver of aiding in the commission of a transgression is a sin of hurting another, or one of participation in the sin, may lie behind a question asked by the Yad Malakhi. He asks whether one has transgressed lifnei iver if, in the end, the other did not commit the transgression. Off-hand, if the transgression is not to harm the other, then offering the help is the sin, whether or not he was in the end harmed or not (It would be prohibited to give bad counsel, even if the other did not accept it). However, if the sin is the participation in the transgression, then it need be committed in order that it be extended to include the abettor.

3. Paint (Tosafot s.v. Minayin)

It is prohibited to have hana'a from orla, to paint with it, or to burn it for light. The gemara apparently derives these three prohibitions from three different words. Tosafot asks why the latter two are not included in the first.

Tosafot's answer regarding paint is that I might have thought that the paint is not considered hana'a, as it is "chazuta be-alma" - mere appearance. This term is taken from Bava Kama (daf 101a), where the gemara raises the possibility that the paint on a surface is not a separate object subject to "hashavat gezeila." The gemara explains that painting is included in issur hana'a, because the Torah has explicitly prohibited "visual hana'a" (in the verse of orla), even though it is "chazuta be-alma."

There are two ways to understand the issue here. One refers to the substance of the paint, and one refers to the act of benefiting, where the connection to the forbidden substance (the ma'aseh hana'a) is only visual. The discussion in Bava Kama revolves around the substance of the paint - is it considered to be a thin, but nonetheless tangible, layer, or only the appearance of the underlying wool. In other words, is it an "object" in its own right. (The same words, "chazuta be-alma," are used to explain why a thin ink stain is not a chatzitza for mikva). However, the language of the gemara there, "visual hana'a," seems to refer to the fact that the individual has not received physical hana'a, but only had a pleasant visual experience. This second explanation is the parallel of the one with which we opened today's shiur. There we discussed the necessity that the hana'a DERIVE from the object proper, "mi-guf ha-chefetz." Here we are discussing the necessity that the hana'a be RECEIVED by the person's body, "be-guf ha-adam."



Next week: You should learn the gemara up to 23b, "... lav d'oraita ninhu". The shiur will amplify various issues raised tangentially by the gemara.