Pesachim Perek 2 – Daf 23a-b Issur Hana’a (3)

This week we are still following the gemara as it reviews all issurim in light of R. Abahu and Chizkiya.

1. "Lakhem"

In a number of cases, the gemara explains the absence of an issur hana'a, even where a verb of the "lo tokhlu" family is found, because of the appearance of a word meaning "to you", or "yours" ("lakhem," "terumatkhem," "nizro," "ketzirkhem"). The gemara writes, "lakhem - shelakhem yihei." There are two ways to understand this. From the gemara's comment, "shelakhem yehei," it would seem to mean that we derive that the particular issur under discussion BELONGS to you. This would prove that it is not assur be-hana'a if we assume that issurei hana'a cannot belong to anyone. As I pointed out last week, this is a famous disagreement among the Rishonim. In short, the question is whether possession is defined by usefulness. In the case of issurei hana'a, there is a double question - can something which has no use be owned, and secondly, is the absence of LEGALLY PERMISSIBLE use the equivalent of no use at all.

A second way of understanding the derivation from "lakhem," which would be fitting even for those who maintain that issurei hana'a do belong to their owner, is that the term means not legal possession, but practical power. It is "lakhem;" i.e., the Torah gives you the right to use it, even as it prohibits you from eating it. This explanation avoids dealing with the monetary status of the issur.

According to both explanations, one of the cases is difficult. The gemara explains that according to R. Yosi, who holds that chametz is not assur be-hana'a, this is because it is written, "lo yeira'eh likha." The two explanations above parallel the two explanations of bittul we discussed in the first perek - only in the opposite direction. The Torah is PROHIBITING you to have a "lekha" relationship with chametz, which requires you either to get it out of your possession (bittul as hefker - R. Tam), or to get it out of your mind as a useful thing (the Ramban, 4b). But here, at least according to R. Yosi, the gemara is using the phrase to mean that even though it is prohibited (not just eating, but lo yeira'eh and lo yimatzeh as well), it is still "lekha." Since the sentence is a negative one, this seems to be a bit forced.

2. Trading in prohibited foods

We know that forbidden species are not assur be-hana'a from the mishna in Shevi'it (7,4), "If forbidden species of animals, birds, or fish happen to come into the possession of hunters, they may sell them to non-Jews." Since selling is a form of hana'a, it is apparent that forbidden species are not assur be- hana'a. The gemara notices, however, that it is only permitted if the animal came into the hunter's possession incidentally ("nizdamnu"); it is forbidden to deliberately engage in the sale of forbidden species. Rashi quotes the mishna in Shevi'it (7,3), "One may not trade in neveilot, treifot, or repugnant things." The gemara derives this from the same verse that is used to permit hana'a. "Sheketz yihiyu lakhem" - it remains a sheketz, a repugnant thing, even when it is permitted (lakhem).

It would seem that this prohibition is d'oraita, since the gemara quotes a verse, especially since the context of our sugya is the exact delineation of derivations concerning issurim. Tosafot (s.v. "amar") accordingly asks why there was a need to enact a prohibition against the raising of pigs, since it is already prohibited mid'oraita.

Nonetheless, many Achronim assume that the prohibition is only derabbanan (see Taz, YD 117,1). The reason is quite simple. It is difficult to define a prohibition that is dependent on the circumstances of the acquisition. If you happen to have a treifa in your possession, you may sell it, as it is not assur be- hana'a. But if you acquire it in order to sell it is prohibited. The nature of this prohibition, with its vague legal definition, seems to demand that it be a rabbinic enactment, rather than a d'oraita category.

Tosafot, quoting the Yerushalmi, adds another caveat. Clearly, it is permitted to raise and trade horses, even though they are forbidden to be eaten. The Yerushalmi explains that since they are customarily raised for work and not for food, there is no prohibition. Only animals which are raised primarily for food, such as pigs, are forbidden. Again, if the prohibition were a d'oraita one, I would not have expected such a distinction.

Many Achronim therefore view the prohibition as being derabbanan, based on the fear that he may eat what he raises, or alternatively, that others may think that he eats what he raises. The Taz, in an attempt to satisfy both sides of this question, advances a novel formulation. The prohibition is indeed d'oraita, but its definition is derabbanan. He explains that the Torah, in one and the same verse, stated that the animal is permitted (lakhem) and that it is prohibited (sheketz). The solution to such a contradiction, he claims, is that the Torah is leaving it up to the Sages to define the boundary, and this boundary will reflect the "practical" consideration of whether he is likely to eat it, rather than the more categorical definition we would have expected had the definition been advanced by the Torah itself.

The source for this kind of hybrid formulation is found in the prohibition on melakha on chol hamoed. The rules laid down in Moed Katan reflect rabbinic concerns - a melakha is permitted if it will cause loss, if it is necessary for the holiday, etc. The gemara however quotes a verse. One opinion is that the Torah has prohibited melakha on chol hamoed, but has left the exact definition of what constitutes melakha up to the Sages, who exploit this power to define the forbidden melakhot in a manner that is practically most fitting.

Nonetheless, a simple reading of most Rishonim, including Tosafot and R. David, indicates that they viewed this prohibition as being simply d'oraita. I would suggest that the explanation is based on a different reading of the verse than that advanced by the Taz. Why does the word "sheketz" indicate a prohibition? The word means that the thing in question is repugnant, something to be rejected, avoided. (Compare "shaketz teshaktzenu ve-ta'eiv tita'avenu ki cherem hu" [Devarim 8,26], where shaketz is parallel to ta'ev, meaning to detest and abhor). This is interpreted to mean that even though the animal is not assur be- hana'a, it should be rejected, should not be viewed favorably, and should not be a positive part of your lives. The practical conclusion is that one should not make one's livelihood out of pigs. One who does so is not merely benefiting from the issur, but is making a despicable thing a positive element in his existence, which while not a hana'a violation, is still a contradiction in terms. Simply, "sheketz hu lakhem" means "get as far away as you can from it." So, if you happen to have one (because it turned up in your net when hunting, or because a kosher animal in your herd dies naturally and is now neveila), you may sell it, but you should not be buying neveilot or pigs from others.

This will, I think, help to explain another halakha. The Rambam (Ma'akhalot Assurot 8,16) writes, "It is prohibited to trade or direct one's work towards something that is assur be- akhila and muttar be-hana'a, EXCEPT FOR CHEILEV, where it is written, "you may do all your work'." The Chatam Sofer (Responsa 106, quoted by the Pitchei Teshuva 117,1) adds that blood is also not included in the prohibition of trade, since it is compared to water (above 22a). In this way he answers the question posed by the Tosafot YomTov (Shevi'it 7,3), based on the gemara (Bekhorot 6b) which raises the possibility that milk may be prohibited as "eiver min hachai" (a derivative from a living animal), and the verses which indicate that it is permitted are referring to trade. The Tosafot YomTov asks, if milk is forbidden, then trading in it ialso forbidden. (This question has a number of answers, one of which is that the prohibition on trade is indeed only derabbanan). The Chatam Sofer answers that the gemara is attempting to prohibit milk as eiver min hachai, and eiver min hachai is itself linked to blood (above 22b). Unlike forbidden species, or neveila and treifa, blood and eiver min hachai are permitted to be traded, like cheilev.

Now this is all gezeirot hakatuv (assuming that the prohibition is d'oraita), but we are entitled to try and understand the rationale. Based on what I suggested above, I think that the explanation is simple. Were the reason for the prohibition to be the fear that one might eat what one raises or trades in, there would be no reason to distinguish between different prohibitions. But if the prohibition is one of "sheketz," then there is a difference between those issurim which are abhorrent, and are therefore prohibited, and those which are forbidden (to be eaten) because they are too fine for people, or because they have a special status. It is a common explanation, based on the verses, that blood and cheilev are prohibited because they are the parts reserved for sacrifice. Fat (cheilev) by definition means "the best part;" the blood is explicitly prohibited because "blood is the soul (life)," and the same applies to eiver min hachai. Here, the logic of sheketz, of abhorrence and rejection, does not apply. (Naturally, I still require a gezeirat hakatuv to inform me of this distinction in this context).

There is a disagreement among the Achronim whether one may trade in fruits infected with worms (see Pitchei Teshuva 117; Pri Meggadim, 84,18). There are several considerations which may be applicable here, but I would suggest that the question we have discussed is central. If the prohibition is based on a fear that one may eat the fruits, there is no reason to distinguish between this case and the standard case. However, if the prohibition is one of "sheketz," it seems logical to distinguish between a case where one is trading and profiting from the prohibited animal specifically, and this case, where the worms are incidental. Selling the fruit, despite the presence of the worms, is not expressing a positive attitude towards the worms; while conversely, although practically speaking it is forbidden to eat the fruit, he has no reason to "abhor" the fruits.

A famous case, discussed by the Taz (117,4 see also the Shach), concerns the "arenda" system. A Jew would take over the entire estate of a nobleman, in return for a flat fee paid in advance, and run it for a year. If included in the estate are pigs, is it permissible? The Bach (the Taz' father-in-law) prohibited it. The Taz attempted, reluctantly, to defend the practice, based on the point that the deal was for the entire estate, and the pigs only a small part. Perhaps they could be seen as incidental ("nizdamnu"). Obviously this is different from the usual case of "nizdamnu," which is "bediavad" - the forbidden animal appeared uninvited. But according to our explanation, perhaps "nizdamnu" should include any case where the direct intention is not to profit from the "sheketz." (A modern, but more complicated, parallel would be the ownership of stock in a company which sells non-kosher food).

3. A side point - the Taz

Tosafot (Sukka 39a s.v. "ve-leitiv") contrasts the explicit verse permitting of selling neveila ("o makhor linokhri") to the prohibition on trading in issurim. This would seem to be a quite clear proof that Tosafot considers the prohibition to be d'oraita. The Taz, in order to reject this implication, advances a famously controversial principle. He claims that if something is EXPLICITLY permitted by the Torah, it cannot be prohibited rabbinically. Hence, since neveila is not only not assur be- hana'a, but is explicitly permitted to be sold by a verse, the rabbinic prohibition of selling issurim could not nullify that permission.

We of course are familiar with the principle that the Sages cannot permit that which is prohibited by the Torah. The Taz is here claiming that they cannot prohibit something, if this will directly contradict an explicit verse in the Torah. Many Achronim disagree and find cases where the principle is apparently ignored, and there exists a quite extensive literature on this question.

4. "Mai ika" (23b)

After all is over and finished, the gemara can find no nafka mina between R. Abahu and Chizkiya, other than the status of chullin she-nishchatu b'azara. Tosafot (21b s.v. "kol") had already utilized this point to prove that there is no karet for hana'a from chametz. Now, since the Rambam apparently follows Chizkiya in chametz, there are a number of problems which arise concerning other forms of chametz, where "lo yei'akhel" does not appear, such as chametz nuksheh. It should follow that they are not assur be-hana'a. But since according to R. Abahu they should be assur be-hana'a, and since we are now assuming that there are no differences between Chizkiya and R. Abahu, there must be a way to justify the issur hana'a in those cases as well.

The standard explanation in the Achronim is that, although chametz nuksheh is derived from a different verse than regular chametz, once I know that regular chametz is assur be-hana'a as well as akhila, the same is true for other forms of chametz as well.

If you remember the explanation we put forward two weeks ago to explain the Rambam's ruling like Chizkiya, this is even more clear. Basically, I claimed, the Rambam rules like R. Abahu (Ma'akhalot Assurot 8,16). Chizkiya's derivation is used here to prove that chametz is an "issur cheftza" and not an "issur gavra." Once I know that, then I can apply R. Abahu to chametz as well. By the same token, once I know that chametz is an issur cheftza despite being temporary, I know that chametz nuksheh is an issur cheftza as well, so R. Abahu applies there also. Had the Rambam really ruled like Chizkiya, there would indeed have been a problem to conclude that chametz nuksheh is assur be-hana'a.

Next week:

We will continue to speed through the gemara for one more week. You should learn up to 24b ("...tum'at basar be-lav"). Most of the gemara concerns alternate sources for issur hana'a. At the end appears a short discussion of overlapping issurim - can one act be prohibited more than once. This is the subject of a famous controversy between the Rambam and the Ramban.

See Rambam, Ma'akhalot Assurot 2,23

Rambam, Introduction to Sefer HaMitzvot, Shoresh 9 (first part, until approx. ten lines after the citation of Pesachim 24a) and the Ramban ad. loc.. 

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