A Prohibition Does Not Apply to an Item That is Already Prohibited – Introduction

Sources:

Since this series of shiurim is very limited as to the number of shiurim, we will now begin to examine an issue that is discussed at length in our chapter – an oath that relates to other Torah prohibitions or positive commandments. Sometimes we are dealing with an oath to act in opposition to a Torah command and sometimes we are dealing with an oath to fulfill a Torah command, and there too sometimes the oath has no validity for various reasons. As background to this issue, we will dedicate one shiur to an introduction regarding the rule that a second prohibition does not apply to an item that is already prohibited – a rule that is not unique to the world of oaths, but which fits in with the issues discussed in our passage. We will then dedicate the next shiur to the idea of "bound by an oath from Mount Sinai that supersedes later oaths," and the validity of an oath for or against a Torah commandment.

********************************

 

            As was mentioned, this shiur will serve as an introduction to the rule that "a prohibition does not apply to an item that is already prohibited" (ein issur chal al issur). This rule is not unique to the world of oaths, but over the upcoming period of time it will fit in with the passages that we will be studying in the third chapter of Shevuot.

 

            The Rambam writes:

 

There is a major general principle that applies with regard to all of the Torah's prohibitions. One prohibition does not take effect when another prohibition is in effect unless: a) both of the prohibitions take effect at the same time; b) the latter prohibition forbids additional entities besides [the entity that was originally] prohibited (mosif); c) when the scope of the [latter] prohibition encompasses more prohibitions than the original prohibition (kollel). (Hilkhot Issurei Bi'a 17:8)

 

            What we have here is a rule with exceptions; we will begin by considering the rule. Taking the example that the Rambam brings in the next halakha, when a High Priest marries a woman who was first a zona, and then became a chalala, and afterwards became a divorcee, and finally a widow (as opposed to the reverse order, when the various exceptions take effect), he receives only one set of lashes for having relations with her, for the additional prohibitions do not apply since the prohibition of zona is already in effect.

 

            There are various disagreements as to the scope and force of the rule that a second prohibition does not apply to an item that is already prohibited, but despite the formulation that appears in different places implying that the rule itself is in dispute, we are generally dealing with internal disagreements that accept the validity of the rule itself.[1]

 

            The source of this rule is not explained in the various passages that cite it. In this context it is interesting to relate to the argument proposed by the Minchat Chinukh in commandment no. 190:

 

I am in doubt about the rule that a prohibition does not apply to an item that is already prohibited, whether or not it applies to a non-Jew (ben no'ach…. It seems to me that there is no difference regarding this matter between a Jew and a non-Jew. Just as with respect to a Jew, this is not derived from a verse, but only by logical reasoning several times in the Gemara, namely, that since a person is already bound by an oath [from Mount Sinai] a second prohibition cannot be applied to him; so too with respect to a non-Jew, a second prohibition does not apply to an item that is already prohibited to him, unless it forbids additional entities, as with a Jew.

 

            According to the Minchat Chinukh, there is no Torah source for this rule, and it is based on logical reasoning.[2]  He does not explain what that reasoning is (he mentions the problematic point of basing the rule that a second prohibition does not apply to an item that is already prohibited, which is not connected to the laws of oaths, on the idea of being bound by an oath already from Mount Sinai). It seems that he understands that if a person is already commanded to refrain from something, there would be no significance to the fact that he is commanded a second time to refrain from that same thing, even if that second commandment is based on a different reason.

 

            This argument requires further study. As we have noted in the past, we can relate to two different layers in Torah prohibitions: One layer is the very determination that a certain action is prohibited and that performing that action involves rebelling against God. Regarding this layer it is easy to understand that if something is already forbidden there is no meaning to it being forbidden a second time. But there is also a second layer, namely, the negative content that underlies the prohibition. This content varies from one prohibition to the next. Presumably, there is something bad about eating gid ha-nesheh, and there is something else bad about eating nevela, and if the two prohibitions coincide, it stands to reason that both negative things are found in the same piece of meat.[3] We will return to this point later.

 

The Tosafot in Sanhedrin (83b, s.v. perat) maintain that the rule that a second prohibition cannot be superimposed upon another prohibition is derived by way of a binyan av. The Gemara in Chullin says in the name of Rabbi Elazar: "From where do we know that if a priest who was tamei ate teruma that is tamei, he would not be liable to death? From the verse: 'And die therein if they profane it,' thus excluding this [teruma, which is tamei], since it already stands profaned." It is possible to understand that we are dealing here with a localized matter: The verse teaches us that a tamei priest who eats teruma impairs the teruma, and that this impairment is less severe if the teruma itself is tamei. One could understand this idea even if the Torah had not forbidden the eating of teruma tamei'ah. However, the Tosafot maintain that this is the source of the general rule with which we are dealing: "… And the verse exempts that which already stands profaned because it had previously become tamei, and we learn from this in general that a second prohibition cannot be superimposed upon another prohibition…." According to the Tosafot, the emphasis is not on the point that is logically understandable, that the impairment here is weaker, but rather on the point that the teruma had already previously been forbidden to eat because it was tamei, and the fact that the priest himself became tamei and so he became bound by a prohibition to eat any teruma does not add any new prohibition to this teruma, and this is a Scriptural decree which can be applied to all of the Torah's laws.[4] But we can still ask: Is there any halakhic rationale for this rule? And what is the significance of the theoretical presence of the second prohibition?

 

It may be suggested that this Scriptural decree teaches us that despite the fact that the Torah's prohibitions are based on some essential evil in the forbidden act, their solidification into operative halakhic rules is made in consideration of directing man's actions. When a certain action is in any case forbidden, the Torah does not impose another prohibition on it.

 

Here we must relate to a question grappled with by many of the Acharonim, namely, the extent of the cancellation of the second prohibition. Some argue that we should not explain the words "a prohibition does not apply to an item that is already prohibited" in their plain sense, for the second prohibition does in fact apply, but only that its violation does not carry punishment. Thus, for example, writes the Peri Megadim: "That which we maintain that a prohibition does not apply to an item that is already prohibited … that is only to make him liable for two punishments, but nevertheless two prohibitions apply to him."[5] According to this approach, there is room to say that the liability for punishment for a transgression rests at least partially on the rebellion against God's command, and in this context it was determined that from the moment that the act enters the realm of prohibition, no additional liabilities can be imposed for it (even though the severity of the punishment is determined by the specific prohibition under discussion, nevertheless it was established as the Halakha that a more stringent prohibition does not apply to an item that is already forbidden by a more lenient prohibition, and even though the sacrifice that is brought for an inadvertent transgression relates to a great extent to the negative action and not to the rebellion, since the transgression was committed unintentionally, nevertheless the rule is that liability is limited to the first prohibition applying to the case); but essentially we are dealing with two separate prohibitions that coexist.

 

The Peri Megadim's source is a Gemara in Yevamot (32a-32b), which discusses the case of a person who has sexual relations with his brother's wife who later became his wife's sister: "If he had intercourse with her, he is guilty on account of both 'his brother's wife' and 'his wife's sister'; these are the words of Rabbi Yose. Rabbi Shimon said: He is guilty on account of 'his brother's wife' only." Later in the passage an explanation is brought in the name of Rabbi Yochanan according to which even Rabbi Yose maintains that in such a case a second prohibition does not apply to an item that is already forbidden, and that he does not mean to impose two sets of lashes or two sin-offerings: "The offender is viewed as though he committed two offences, but he is only liable for only one. What practical difference does this make? That he must be buried among confirmed sinners.[6]"[7]

 

The Peri Megadim understood from this that the second prohibition takes effect, only that it carries no liability for punishment, but there can be practical implications, e.g., regarding the matter of burial, which attests to the level of the sinner's wickedness.[8]

 

Other Acharonim accepted the position of the Peri Megadim based on the aforementioned Gemara, including the author of Responsa Sho'el u-Meishiv:

 

In my humble opinion, the matter of a second prohibition not applying to something that is already prohibited, which appears in many places, is that in truth the purpose of all of the Torah's punishments is not revenge, but only that one not continue to behave in that manner, and that other people should hear and be afraid, and therefore anything that is already forbidden, what is the difference between this and that, and what is gained by forbidding it again because of a different prohibition? In any case he will not eat or do [the prohibited act] because of the first prohibition. Therefore, as long as there is no practical difference, e.g., it is not a more stringent prohibition, or a more comprehensive prohibition, or a prohibition that adds something, since it makes no difference whether the prohibition is because of this or because of that, therefore it does not apply. And therefore they said that the practical difference is that he must be buried among confirmed sinners. This is because in truth the prohibition applies, only that it makes no difference to add to his punishment, but the prohibition takes effect…. For in truth the prohibition exists, only that there is no practical difference to add a punishment. But if the first prohibition passes, the second prohibition applies. (Second series, I, no. 396)

 

            The Sho'el u-Meishiv explains that the purpose of the Torah's punishments is deterrence (this is a weighty issue which cannot be examined in this forum), and therefore there is no reason to invoke them when they do not add a new prohibition. This stands in contrast to the prohibition itself, which has independent negative content, and applies even to that which is already forbidden by a different prohibition.

 

            On the other hand, there are sources that lean in a different direction. For example, the Gemara in Pesachim (35b) states that one cannot fulfill one's obligation to eat matza on Pesach with matza that is tevel (made from untithed produce), because what is needed is matza which if it had been allowed to rise would be forbidden as chametz, and according to Rabbi Shimon tevel would not become forbidden as chametz (since ein issur chal al issur). This implies that the rule that a prohibition does not apply to an item that is already prohibited should be understood in its plain sense, that the second prohibition does not come into effect at all, and therefore matza that is tevel never had the potential to become chametz. The Beit ha-Levi[9] argues in the opposite direction, claiming that this passage in Pesachim proves that fitness for matza requires not only the potential to become forbidden as chametz, but the potential to become liable for lashes because of chametz, and therefore this depends on the question of whether or not a second prohibition applies to an item that is already prohibited, which is limited to the issue of liability for punishment (in my opinion, this is rather forced).

 

            In this context mention should be made of the words of the Rambam in his commentary to the Mishna on Keritut 3:2, a point which he called the "wonderful point." Without getting into a discussion of the "point" itself, it should be noted that the Rambam, in contrast to other Rishonim, maintains that if one cooks forbidden fat with milk, the prohibition of mixing meat and milk does not apply, because a second prohibition does not apply to an item that is already prohibited. What is significant for our purposes is that the Rambam argues that this is true even though one is permitted to benefit from forbidden fat, and one it is forbidden to benefit from a mixture of meat and milk. This implies that the rule that a second prohibition does not apply to an item that is already prohibited results in the fact that the prohibition of a mixture of meat and milk does not apply at all, for we are not dealing with liability, but with the question whether one is permitted to transgress the second prohibition. Generally this has no practical ramification, because the first prohibition is sufficient reason for the item to be forbidden, but here we see that even when there is a practical ramification, the Halakha is that one may ignore the second prohibition, implying that it simply does not exist.[10]

 

            Can the words of the Rambam be reconciled with the Gemara in Yevamot (at least according to Rabbi Yose)? Rav Elchanan Wasserman[11] thought that this is possible. According to him, without a doubt, "the reason for the prohibition" exists even if the second prohibition does not apply to the item that was already forbidden by another prohibition. "The reason for the prohibition" is first of all the specific identity which the Torah forbids. For example, if when Yaakov betroths Leah, her sister Rachel is a menstruant, the prohibition of one's sister wife is not added to the prohibition of a menstruant. It is clear, however, that when she purifies herself from her menstrual impurity, not only will she be forbidden because Yaakov's betrothal of Leah imposed upon her the status of his wife's sister; but even before she purifies herself, if Yaakov betroths her, the betrothal will not be valid (betrothal with a menstruant takes effect, but betrothal with one's wife's sister does not). This proves that without a doubt she has the status of an erva – a woman forbidden because of familial relations – even if there is no prohibition of erva (and the Acharonim prove in various contexts that it is the status of erva that invalidates a betrothal, and not the prohibition of erva). But Rav Elchanan takes the matter one step further – when we say that the reason for the prohibition exists, this has halakhic ramifications. It does not suffice to prohibit an action that is not otherwise forbidden, e.g., deriving pleasure from a mixture of fat and milk, but it is enough to impose greater severity upon an existing prohibition, e.g., for burial among confirmed sinners (and other matters, e.g., giving a prohibited item to a minor; see Rav Elchanan).

 

 

            Three main exceptions are mentioned regarding the rule that a second prohibition does not apply to an item that is already forbidden by another prohibition. One seems obvious (though it too is disputed in the Gemara), namely, when the two prohibitions take effect at the same time, so that neither of them applies to an item that is previously forbidden.[12] We will deal at this time with the other two exceptions, that are discussed in our passage in Shevuot: issur mosif, i.e., when the second prohibition forbids additional entities besides the entity that was originally prohibited, e.g., when it forbids it to additional people; and issur kolel, i.e., when the scope of the second prohibition encompasses more prohibitions than what was included in the original prohibition.

 

            As we saw above in the Rambam, these two exceptions were accepted as the Halakha. There is, however, no consensus about them among the Tannaim. Rabbi Shimon does not recognize these two exceptions (Yevamot 32a), and in our chapter in Shevuot (24b) Rava says that there are those (see Tosafot, who say that this is Rabbi Yose) who accept the exception of issur mosif, but not the exception of issur kolel:

 

Raba said: What is the reason of the one who holds an issur kollel [can take effect on a previous prohibition]? Because it is analogous to an issur mosif.  And [the reason of] the one who exempts him, not holding this? Because he says, an issur mosif is applicable only to one piece, but not to two pieces.

 

According to the simple understanding of this passage, both exceptions are based on the same idea, that the second prohibition applies when it adds new prohibitions. The disagreement regarding issur kollel is whether or not to accept this principle when the addition relates to a different object. However, even though there is certainly a conceptual similarity between the two exceptions, it seems that there is a distinction between them in the way that each exception works.

 

Let us open with issur kolel. There is room to inquire about this prohibition, whether the fact that the prohibition applies to other objects is the reason that it applies also to the piece that was already forbidden, or a sign that it applies to it. The idea of a "reason" says that even without the rule of issur kolel, which is indeed the case according to some opinions, it is clear that the second prohibition applies to the additional, heretofore, permitted object, because in its regard the prohibition applies to something that is permitted. Since the prohibition applies to the additional object, it cannot apply partially, and thus it applies even to the piece that is otherwise forbidden. The idea of a "sign" says that it is possible for the prohibition to apply partially, only that the fact that the second prohibition creates a new prohibition for the other pieces teaches us that it has a different and novel character relative to the first prohibition, and the Torah allows such a prohibition to apply because of this novelty.

 

Now, the Tosafot in our chapter (24b, s.v. migo) note that an issur kolel does not apply to an item that is already forbidden by a more stringent prohibition, but only when the second prohibition is more stringent than the first (or perhaps also when they are of equal stringency). Of course, even when the second, more comprehensive prohibition is less severe than the first, it applies to the otherwise permitted pieces. From here we see that the argument that a prohibition cannot apply partially is incorrect, as there are cases where a prohibition applies to otherwise permitted pieces, but not to pieces that are already forbidden. Therefore, it stands to reason that the rationale of "sign" is the correct one: The fact that the prohibition applies to the other pieces teaches that there is something significant here, provided that we are not dealing with a prohibition that is less stringent than the prohibition that already applies to the piece in question, in which case it is not considered something significant.

 

As opposed to issur kolel, issur mosif applies even when the second prohibition is more lenient than the first, even according to the Tosafot.[13] It seems that in the case of issur mosif, the rationale of "reason" is the correct one – on one piece, the prohibition cannot apply partially, and so when it applies with in one respect (for instance, to include an additional person), it applies also to the original person to whom the object had already been forbidden because of some other prohibition. This being the case, regarding issur mosif there is no difference between a lenient prohibition being added to a more stringent one and a stringent prohibition being added to a more lenient one. This is because the mechanism of an issur mosif is different than that of an issur kolel, in accordance with what we saw above.

 

Points for further thought: 1. See Tosafot, Yevamot 32b, s.v. issur kolel. Is the distinction that arises from their words between issur kolel and issur mosif connected to the point that we developed here? See the qualification set by the Rambam in Hilkhot Shegagot 4:3. What is your opinion about this in light of the above?

 

 

Sources for the next shiur: Bound by an Oath from Mount Sinai that Supercedes Later Oaths – Introduction.

 

The next shiur as well will be an introductory shiur, not for the general rule that "a second prohibition does not apply to an item that is already prohibited," but to a concept unique to the world of oaths, "bound by an oath from Mount Sinai," and to the limitations concerning an oath relating to a mitzva. See the following sources and try to outline the laws regarding an oath to fulfill a mitzva and an oath to annul it, regarding positive commandments and regarding negative commandments, with respect to lashes and with respect to a sacrifice:

 

 

(Translated by David Strauss)