Deriving Benefit Unwillingly (part 2 of 2) Pesachim perek 2 - 26a

We will be discussing various points raised in the different cases the gemara cites on 26a as proofs of either Rava's or Abaye's position. This will help us clarify the concept of hana'a haba'a l'adam baal korcho, as well as a number of other points. One thing to watch out for - when Abaye or Rava bring a proof, is it to the first or second version (on 25b) of their positions?

A. R. Yochanan b. Zakai and the Shade of the Temple

1. The proof of Abaye:

This case is cited as a proof for Abaye, since it is defined as NY (Lo efshar ve-kamekhaven). Why was it "lo efshar?" Rashi writes, "It was impossible not to teach the masses the laws of the festival." The main point seems to be missing - why was it impossible? R. David adds that there was no other place big enough for the crowd who would come to hear R. Yochanan. This fits the definition of "lo efshar" accepted by nearly all commentators - given the other, permitted goal, there is no other way to achieve it without also benefiting incidentally from issur (what R. David, in the section quoted last week, called, "benefiting on the way."). But Rashi is perplexingly unclear.

It may be that Rashi indeed has a different explanation of lo efshar than that commonly held. It seems from his comment here that "lo efshar" means that one cannot refrain from performing the other action altogether. It is not a question of whether he can give his lecture elsewhere (as R. David is explaining), but whether he can not give it at all. (The answer is, apparently, that he cannot, as it is an important lecture). This would imply that if one is traveling somewhere without a very good reason, and the ONLY road passes the issur, this is considered to be "efshar, "it is prohibited to do so. All other commentators would call this a case of lo efshar. If this is Rashi's opinion - and I am reluctant to so conclude - then the reasoning is that if there is a good reason to go somewhere, the action is defined by the reason - R. Yochanan is teaching under the Temple wall, not cooling himself off. If there is no persuasive reason, then the FACT of hana'a defines the action, and it is prohibited.

2. The answer of Rava: "Shaiyenie heikhal deletokho asui."

Even though mekhaven should be prohibited, this case is different. There are several different interpretations of this answer:

a. Rashi - The hana'a of shade is "shelo kederekh," and therefore permitted. If you recall, the assumption on 24b was that shelo kederekh is prohibited midirabbanan. How then does this point refute Abaye's proof?

(a) The simplest answer, most consistent with the lack of elucidation in Rashi, is that he maintains that shelo kederekh is permitted even midirabbanan. There is no explicit statement in the gemara that there is a rabbinic prohibition - on the contrary, the gemara on 25b states that Ravina used issur as a salve for his daughter's skin disease because it was shelo kederekh. In fact, the Mordechai (24b) states that there is no prohibition at all, and it is permitted for healthy people as well as the ill.

(b) The Ran writes that "tzorekh rabbim" (public needs) suspends the issur midirabbanan in the same manner as non-mortal illness (Ravina's daughter). R. Yochanan's public lectures were therefore permitted, even though he would benefit from the shade of the Temple, since the hana'a was shelo kederekh, which, under those conditions, is permitted.

Both of these explanations conclude that, at least for R. Yochanan b. Zakai, the shade is permitted, EVEN HAD IT BEEN A CASE OF YY (efshar vekamekhaven), since the hana'a is not prohibited at all.

(c) R. David explains Rashi's opinion in a more involved manner. Shelo kederekh is prohibited rabbinically (including cases of public need). However, in this case, where the hana'a is lo efshar (even though lo efshar is also prohibited), shelo kederekh is permitted without any extenuating circumstances.

There are two ways to understand this. One is technical - Chakhamim waived the rabbinic prohibition in a case of lo efshar, since it is difficult to avoid the hana'a. (Note: This is a different sort of suspension than non-mortal disease or public need. Lo efshar has not been understood until now to be an extenuating circumstance, but rather a logical factor - rejected as such by Rava - to not attribute the act of hana'a to the person).

I think there is another possible explanation for R. David here, one based on the internal logic of shelo kederekh and lo efshar. But first, we must note the subtle change in the definition of shelo kederekh that Rashi is using here. In the cases on 24b, shelo kederekh could mean an unusual means of having hana'a. By putting cheilev on your skin, you are doing something unexpected. Here, in the case of the wall, standing in the shade is not unusual or unexpected. Rather, the gemara is stating, according to Rashi, that the construction of the wall was for the purpose of the inner side. Hence, the shade is UNINTENDED hana'a (rather than unusual), relative to the intentions of the builders of the wall. Hana'a shelo kederekh is a different hana'a than the hana'a that is the "official," inherent hana'a of the object. In natural objects, the main hana'a is determined by majority use; in artificial objects, by the purpose for which it was constructed.

Accordingly, we may explain that hana'a shelo kederekh is prohibited rabbinically, because despite the fact that the "cheftza" is not giving you (its inherent) hana'a, since the hana'a of an issur cheftza is only the "official" one, you are still performing an act of getting hana'a from the object. In other words, there is an ACT of hana'at hagavra, but no hana'at cheftza. This is the basis for the rabbinic prohibition (rather than saying that rabbinically, all hana'ot are hana'at hacheftza).

Conversely, in a case of lo efshar, the act is not considered to be the primary action of the individual. Since he is going about his business, and has not chosen to go pass the idolatrous temple specifically but only incidentally, the action of the individual is "taking a walk," or, in our case, lecturing to the public. Kavana does not change this definition, but serves, as we explained in last week's shiur, as a separate connection between the individual and the result. Since the cheftza is issur hana'a, any connection is prohibited.

Hence, if it is both lo efshar and shelo kederekh, there is no basis for any prohibition at all. The object is not providing hana'a, as it is shelo kederekh, and the issur midirabbanan of having hana'at gavra is obviated by the lo efshar, so that there is no action of hana'a by the individual.

(The question here is whether kavana defines the primary action in terms of the intended goal, so that R. Yochanan b. Zakai can be described as performing the action "getting hana'a of the shade;" or whether kavana relates the shade as a result to the individual additionally, with the action of R. Yochanan being described as "delivering a lecture," with the added result of "there is hana'a." If it is the second, it can only be prohibited if the hana'a is kederekh hana'a. This question was raised last week).

b. R. David - The above was R. David's explanation of Rashi. He himself however offers an alternative explanation of the gemara's statement, "shaiyeni heikhal deletokho asui," not based on shelo kederekh. He claims that the shade is not prohibited at all - the wall is not prohibited in regard to the shade. Unlike cheilev or basar b'chalav, which are prohibited in hana'a generally, the wall of the Temple, which is hekdesh, is only prohibited for that purpose for which it was created as a holy object. Only its purpose as a wall is sacred, and therefore only its purpose as a wall is forbidden.

There are two ways to understand this:

(a) This refers only to shade. The shade is not quite a hana'a from the object itself.Hence, since the wall is primarily for the inside, the shade of the outside is divorced, alienated from the wall itself. The language of the Maharam Chalava suggests this possibility.

According to this, it would be prohibited to lean on the wall from the outside, or to sit in the shade on the inside.

(b) The wall is divided, so to speak, into two. Only the inside of the wall, meaning the wall relative to the direction of the inside, is sacred; the outward direction of the wall is not. In the direction of the outside, the wall is not a sacred object, and hence all hana'a is permitted. Accordingly, it would be permitted even to lean on the wall.

(R. David applies this discussion to standing (on a hot day) in the shade of a church. This agrees, I think, somewhat more with the first explanation, since the intention of the builders of a church is not what creates the prohibition - it is not hekdesh. The church is prohibited because it is used as one. One might however argue that a church is not an object prohibited because it is worshipped, but because it is dedicated to worship, and only the inside direction is dedicated in that way.)

A difference between Rashi's explanation and R. David's would be concerning church buildings. Since Rashi is based on the concept of shelo kederekh, this would not apply to avoda zara, which is prohibited even shelo kederekh (since it is not an "akhila" issur). This is surely true if it "efshar." Hence one cannot go cool off on a hot day by sitting on the steps of a church. Only if it is NN (lo efshar - lo kamekhaven) would it be permitted. According to R. David however, outside hana'a is simply permitted, even YY (efshar and mekhaven), and even not baal korcho (he went there primarily to enjoy the shade). R. David concludes that one should not rely on his opinion.

3. Shelo kederekh in Me'ila

Rashi, in any event, bases this case on shelo kederekh. We saw previously that shelo kederekh is permitted only in issurim which are formulated with an "akhila" verb, unlike basar b'chalav and kilayim. But here, the issur is me'ila (benefiting from sacred objects), which does not have an akhila verb. How can Rashi use the concept of shelo kederekh to permit sitting in the shade of the Temple?

Tosafot (s.v. "shaiyeni") answers that me'ila is equated with teruma, which is an "akhila" prohibition with the rule of shelo kederekh. It should be noted that the way we explained the Rambam, this "hekesh" would not be relevant. The problem with me'ila is not merely that the prohibition is not formulated with an "akhila" verb, based on the rule of R. Abahu. Me'ila is not a prohibition of eating in principle; it does not apply specifically to foods. Our explanation of the Rambam was based on the assumption that the issur hana'a in foods is a LOGICAL extension of the issur akhila. This is clearly not true of me'ila.

B. Sounds, Appearance, and Smell

Rava brought a proof from the cautionary measures taken to prevent workers from having hana'a from the appearance of the Holy of Holies. Abaye answers that in any event it should have been permitted, since appearance, like sounds and smells, is not included in the prohibition of me'ila. Hence, this must be a special stringency of the Temple, and therefore no proof can be brought.

Rashi assumes that the phrase "ein bo mishum me'ila" implies that there is a rabbinic prohibition (even before the gemara states this in the lishna batra). It therefore is not clear how Abaye has refuted Rava's proof. Why does not the rabbinic prohibition on appearance warrant precautionary measures. Rashi answers that since it is only an rabbinic prohibition, it is not reasonable to maintain the prohibition in a case of lo efshar. The question is, why not?

The Ran answers that Rashi means that "litzorekh gavoha" ( for the needs of the Temple), there should not be a rabbinic prohibition. This is apparently Tosafot's intention as well (See R. Peretz for a slightly different version). This seems to be adding more to Rashi than is actually written there. The alternative is to assume that in any issur midirabbanan, the Sages will not maintain the prohibition where there is some difficulty, as in lo efshar. As Tosafot points out, this is not true in hilkhot Shabbat.

R. David assumes that the lishna kama maintained that there was no issur dirabbanan, and only in the lishna batra a prohibition, other than me'ila, mentioned. In the lishna batra, he assumes that the prohibition is d'oraita - not me'ila, but a biblical prohibition nonetheless. This is possible since the term me'ila includes more than mere prohibition - there is a korban and a special 20% penalty payment as well. There are cases where "no me'ila' means that these additional factors do not apply, but the Torah definition of issur hana'a is met. Obviously, this is relevant to all other issurei hana'a - is there a Torah prohibition to smell basar b'chalav?

D. Egla Arufa and Para Aduma

1. The case

This is not a case of issur hana'a at all. How is it connected?

The answer is simple. The assumption of the gemara was that if I have "worked" the animal, it is disqualified; if it worked on its own, then it is still kosher. The question then is whether incidental work is related to the individual, as an action of his own. This is exactly the question in issurei hana'a, as we explained it, as well as in hilkhot Shabbat.

2. Tosafot (26b s.v. "alla")

Tosafot points out a real logical conundrum here. If the owner is pleased that the cow has mated, then the red heifer is pasul. But then he will lose a great deal of money. So he is not pleased. Therefore, the heifer is not pasul. So he does not lose any money. So he is pleased.... etc. etc... around and around. Tosafot concludes that therefore the heifer is pasul. Why?

This is a typical case of A ->B; B-> notA; notA -> notB; notB -> A. A vicious logical cycle results. How do we get off?

Rav Amiel (HaMidot LiCheker HaHalakha, I) offers the following rule. It does not require a positive cause to leave the situation the way it is. A cause is needed to create a new positive result. A contradiction cannot serve as a positive cause for change, but will not undermine the status quo. hence, one must decide what is the LOGICALLY positive side of any two-sided possibility. In our case, the psul (negative in quality, but a logically positive result) requires a cause, so that by Rav Amiel's principle, this heifer should remain kasher!

The Ran (Bava Metzia 22a) addresses this question. His language is not completely clear (I suggest you look it up), but he seems to be suggesting that halakhic results are not taken into consideration when deciding whether something is desirable or not. The mounting of the heifer is desirable in the real world, and halakhic results are simply ignored. In other words, this is not a case of a vicious cycle at all.

Another way to explain this - and I think this may in fact be the intention of the Ran - is that real causes take logical precedence over halakhic results. First of all, he is pleased. The halakhic result is a result of this pleasure - and a result cannot return to be the undoing of its own cause, if the cause is a real fact.

It is quite clear that there is a genuine mind-twister involved here. I leave you with plenty to try and work out.

 

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This is the last shiur in the summer session of Pesachim. Basically, we have finished the sugyot of issurei hana'a.
 
This perek has afforded us a chance to learn sugyot that are otherwise "off the beaten track." I hope you have enjoyed it as much as I have.
 
kol tuv,
Ezra Bick