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Class Notes - Class #21

Mitzvah #112 prohibits us from doing most agricultural work on the land during shmittah.  The author says he has covered this topic in mitzvah #84, which requires us to leave ownerless the produce that grows during shmittah.

 

Mitzvah #114 prohibits a beit din from carrying out the death penalty on Shabbat.  Shabbat is a day of honor and rest, even for sinners.  Carrying out executions on Shabbat would dishonor the day and pollute the desired atmosphere.  A judge violates this mitzvah by giving a verdict of the death penalty on Shabbat, but that is not punishable because the judge has not done an overt act.  An executioner who carries out a death penalty on Shabbat is liable to the death penalty himself if there are witnesses and warning.  If the executioner acts b’shogeg he brings a korban hattat.

The author’s explanation of this mitzvah is straight forward, but he does add a discussion of how this mitzvah is derived from the Torah.  In the process he offers us an example of how midrash halachah works.

We have already seen a mitzvah prohibiting doing melachah on Shabbat. (Mitzvah #32.)  By Torah law, an act is only considered melachah if the person doing it acts for the purpose of getting the benefit of the act.  If you light a fire for heat or light or cooking, that is melachah by Torah law.  Here we have a verse prohibiting lighting a fire on Shabbat.  This verse seems superfluous, since lighting a fire is a melachah and is therefore prohibited by the earlier mitzvah.  We assume this verse adds information we do not otherwise have, and the question for the midrash halachah is what new information it adds.

The midrash halachah understands this verse to prohibit burning a person.  In other words, it prohibits executing someone by burning after a beit din has convicted the person.  Then it extends the prohibition to the other three forms of execution.  The act of capital punishment would not be considered melachah by Torah law because the purpose is not the benefit of the act, so we need an independent source for capital punishment to be prohibited on Shabbat. 

            There is an alternative way to understand the source verse, though.  When this verse prohibits lighting a fire on Shabbat, it means the ordinary melachah of lighting a fire.  But we need the redundancy to shed light on a punishment problem.  Let’s say someone forgets various melachot one Shabbat and does several acts each of which is a melachah.  For example, he or she lights a fire and then cuts some fruit from a tree.  Since the acts were done b’shogeg, he or she is liable for korban hattat.  The question is whether the person needs to bring two korbanot, one for each melachah, or one hattat since there was one incident of forgetting.  Since this verse singles out the melachah of lighting a fire, it is interpreted to mean that the person needs one hattat for each violation.  (Distinguish this situation from a case where the person forgets that the day is Shabbat and does several melachot during the time the person forgot it was Shabbat.  In that case the person brings just one hattat.)

            If we understand the verse this way, is there still a prohibition on carrying out the death penalty on Shabbat?  Our author cites the Talmud Yerushalmi, which points out that there are words in the verse that are unnecessary even under this understanding of the verse.  The verse refers to “your habitations.”  This superfluous language is used as the source to prohibit carrying out capital punishment on Shabbat.

 

Mitzvot #111 and #113 are much more complex.  Although they seem unrelated to each other, the author finds a common halachic thread and he develops that theme in detail.  We will work through the content of these mitzvot, mostly following the order the author uses, and then come back to the light these essays shed on the author’s larger enterprise.

            The author’s explanation of mitzvah #111 is quite straightforward.  Mitzvah #111 prohibits eating or drinking anything that has been offered up to an idol.  It is another example of the Torah keeping us away from anything connected with idol worship.  It applies to even the least significant item that was offered up to an idol, water or a little salt, even if the idol worshippers themselves would consider those items too insignificant to be an appropriate offering and even if the protocol of the idol worship would consider the item inappropriate.  Violation is punishable with malkos.  Even though this is a prohibition on eating, one is liable to punishment for eating less than a k’azyis; one is liable for eating even the smallest amount.

            One food item to which this mitzvah applies is wine.  D’oraita, according to Torah law, we are forbidden to drink wine from which a libation was poured out for an idol.  If someone opened a bottle of wine and poured out a little to Dionysus, the rest of the bottle would be forbidden.  D’rabanan, the rabbis extended this mitzvah dramatically, forbidding us to drink wine handled open by a non-Jew lest the non-Jew pour out a libation without our knowing it.  This wine is called “stam yaynam.”  (The rabbis thought no self respecting idol worshipper would pour out a libation from wine that had been boiled, so the restrictions of stam yayanam do not apply to wine that has been boiled before any non-Jew touched it.  This is called “yayin m’vushal.”)

            This is a unique type of rabbinic legislation.  We are prohibited from getting benefit from anything used in idol worship, and the rabbis extended those prohibitions to items that are typically made for the purpose of worshipping idols or where there is reason to think an item was used in idol worship although we do not actually know. (Something that we are forbidden to get benefit from is called “assur b’hana’ah.”)  But this is the only case where the rabbis prohibit getting benefit from something even though there is no evidence that it was used in or intended for idol worship.  The rabbis prohibit stam yaynam “just in case.” 

Our author says the rabbis thought wine was a main element in idol worship so they gave wine special status.  Although the author does not mention other motivations, the rabbis may have seen other benefits to banning wine handled by non-Jews.  This prohibition makes certain types of social interactions between Jews and non-Jews much more difficult, and the rabbis might have been happy to limit those social interactions.

            As we said earlier, the act of drinking even the tiniest amount of wine that was used in idol worship is punishable according to Torah law.  The rabbis prohibited drinking stam yayanam, even in tiny amounts. But drinking stam yayanam is only punishable if someone drank a revi’is, the standard shiur that defines drinking just as k’zayis defines eating.  The punishment for drinking a revi’is of stam yayanam is makkas mardus.

            Next the author deals with the issue of what happens when one person’s act results in someone else’s property becoming forbidden and therefore valueless.  Let’s say I own a bottle of wine, and someone else pours a libation to Dionysus from it.  I am now forbidden to drink the rest of the wine, so the person who poured the libation has done me financial damage.  The author cites a general rule that one person’s action cannot result in someone else’s property becoming forbidden. 

            D’oraisa, someone can only make someone else’s property forbidden if he does a major action directly on the object.  Thus, someone who slaughters someone else’s animal as a sacrifice to the idol, or pours a libation from a bottle of wine in honor of an idol, has made the animal or wine forbidden to everyone, including the owner of the animal or the wine.  But if someone does a minor act, or does not do an act directly with the object, the object is not forbidden to its owner.  So if someone bows down to someone else’s animal as an act of worship, d’oraisa the owner of the animal can still get benefit from the animal.

            D’rabanan, however, if someone does a minor action that even indirectly impacts someone else’s property, the property can become forbidden to its owner. This applies to stam yayanam.  If a non-Jew handles a bottle of wine when the bottle is open, d’rabanan the wine is now forbidden for the owner to drink or get benefit from and the owner has suffered a financial loss. There is one exception to the rabbinic ban on getting benefit from that wine.  The owner is permitted to sue the non-Jew for damages.  (This seems to be more theoretical than practical.)

            After this discussion, the author goes to the topic of what happens when something forbidden gets mixed with something permitted.  He discusses this topic in this essay and continues in mitzvah/essay #113. 

            Start with a case where an owner has something that is “assur b’hana’ah,” from which he is forbidden to get benefit, for example some broth in which meat and milk were cooked.  That broth gets mixed into other permitted broth, such that one can no longer distinguish the forbidden broth from the permitted broth.  This type of mixture, in which the permitted and forbidden elements are no longer distinct from each other, is called “lach b’lach,” “liquid in liquid.”  Note that a mixture can be lach b’lach even if it is not a liquid; permitted flour mixed with forbidden flour would be considered lach b’lach.

            We would think that someone who owns that mixture of broth would be stuck and that the forbidden broth would make the entire mixture assur b’hana’ah.  But the Talmud quotes Rabbi Shimon ben Gamliel for a proposed solution.  He says you can take the mixture of milk and meat broth with kosher broth and sell it all to a non-Jew.  Then you keep the percentage of the sale price that corresponds to the value of the kosher broth and discard the portion of the sale price that corresponds to the value of the meat and milk broth.  You have not gotten benefit from the forbidden broth, but you have retrieved the value of the permitted broth.  This solution is more limited than it appears, though, since there is a danger that the non-Jew will sell the mixture back to another Jew, who will then get benefit from the forbidden part of the mixture.  So Rabbi Shimon only permits this proposed sale if the item being sold is something Jews will not buy back from the non-Jew.

            But this solution does not work if the item that is assur b’hana’ah became prohibited because it was used in idol worship.  Let’s say that some chocolate syrup that someone has worshipped gets mixed into some permitted chocolate syrup.  No matter how small the percentage of the worshipped chocolate syrup, the entire mixture is assur b’hana’ah, and even Rabbi Shimon would not permit the owner to sell it and keep any of the proceeds.  But this stringency does not apply to stam yaynam, only to items actually used in idol worship.

            There is yet another complication, though.  Consider a case where one bottle of wine that was used in idol worship gets mixed with several bottles of wine that are permissible such that there is no way to tell which is the prohibited bottle and which are the permitted bottles.  This type of mixture is called “yavesh b’yavesh,” “dry in dry.”  A mixture is yavesh b’yavesh if the forbidden items remain distinct from the permitted items but it is impossible to identify which is which.  Here, our author says, Rabbi Shimon’s solution is also permitted.

            At this point in the discussion, the author adds another major rule. In most cases, if a forbidden food gets mixed with a permitted food in a lach b’lach mixture, d’oraita the crucial question is whether the forbidden food changes the flavor of the mixture.  If it does, the entire mixture becomes forbidden.  If it does not, the forbidden food is considered “batel,” de minimis, and the entire mixture is permitted.  For example, let’s say you have some milk from a cow known to be a treifah.  You add a little chocolate syrup to that milk.  Then it gets mixed in with the milk of healthy cows.  D’oraita, the author says, the result depends on whether the chocolate milk from the treifah cow changes the flavor of the mixture.  If the chocolate taste is discernible in the mixture, the entire mixture is forbidden.  But if the chocolate taste is not discernible because very little chocolate milk was added to lots of plain milk, the entire mixture will be permitted.  The chocolate milk is considered batel. 

The author mentions several exceptions to this rule. In particular, if the prohibited thing that gets mixed in has a significant status on its own, it is not batel.  But his emphasis is on this general rule.  The concept that some amount of forbidden stuff gets mixed into permitted material and does not make the entire mixture prohibited is called “bitul.”  The details, however, are complex.

            This rule does not apply to things that are forbidden because they were worshipped or used for idol worship.  In those cases, if even a tiny amount of the forbidden material gets mixed in, the entire mixture is assur b’hana’ah. 

            The author then expands on the notion of wine that is assur b’hana’ah. 

Drinking the wine, feeding it to your animals, or selling the wine and keeping the proceeds is forbidden.  The rabbis extended the notion that items used in idol worship are assur b’hana’ah to benefits that are even less direct.  For example, a Jew would not be permitted to earn money by working with the wine, packing it up or moving it around.  Indirect benefit is prohibited to keep us thoroughly separated from matters of idolatry.  Then the author considers the case of someone who is hired to destroy wine from which a libation has been poured.  One could argue that the employee is doing the opposite of getting benefit from the wine; he is destroying the wine.  But he is earning wages from destroying that wine, so he is getting a benefit.  The halachah is that he may get paid to smash the wine bottles since overall his actions reduce the presence of items dedicated to idol worship.

            The author ends his discussion with material more like what we have come to expect.  He considers some of the details of how this particular mitzvah works.  He asks what is the minimum act that defines pouring a libation, what happens if the non-Jew touched the wine unintentionally, what if the non-Jew touches the wine involuntarily (somebody pushed him) etc.  This mitzvah also inspired the rabbis to legislate against our eating or drinking from disgusting vessels such as chamber pots, etc. 

            Finally, the author explains that Rambam disagrees with Ramban and several other authorities about the source verse for this mitzvah.  Our author has chosen to use the Ramban’s verse.  The author apparently agree with Ramban on this issue.  Using this source verse allows him to write this essay contiguous with the next essay about not eating meat and milk cooked together, in which he adds to the themes of bitul and assur b’hana’ah that he developed here.

 

Mitzvah #113 brings us back to the topic of meat and milk cooked together.  The source verse prohibiting cooking a kid in its mother’s milk appears three times in the Torah.  The first version prohibits cooking meat and milk together, as we saw in mitzvah #92.  The other two versions prohibit eating that cooked mixture and getting benefit from that cooked mixture, although those two concepts are considered one mitzvah.  This mitzvah/essay starts by explaining this confusing situation.

            The Torah might have been clearer had one of the verses explicitly prohibited eating meat cooked in milk.  But that would have been confusing because eating meat cooked in milk is fundamentally different from eating other prohibited foods.  In other cases, the person who is eating has to get some benefit from the act of eating; if not, the act of ingesting is not considered eating.  But this prohibition is different, and someone can violate it even with an act of ingestion that is not beneficial.  We saw in mitzvah #92 that someone who eats meat cooked in milk to which some noxious substance has been added violates this mitzvah.  Here we get another example:  if the substance is so hot that the person’s throat gets burned while he or she is eating, the person has still violated this mitzvah even though this would not be considered an act of eating other types of prohibited foods.  If the Torah had explicitly prohibited eating meat cooked in milk, we might have mistakenly thought eating this prohibited food followed the same rules as other prohibitions on eating.

            The author next explains why the Torah needs to state this verse three times even though there are only two mitzvot.  He explains that the Torah often prohibits eating when it means to convey issur b’hana’ah, a prohibition on getting benefit from the thing.  The Torah might have had one verse prohibiting cooking meat in milk and another verse prohibiting eating the stuff.  The prohibition on eating would have conveyed a prohibition on benefit as well. But if we had a verse prohibiting eating, we would think it meant normal eating, and not “eating without benefit” as explained above.  So the Torah had to avoid a verse explicitly prohibiting eating.  If the Torah’s only formulation is to prohibit cooking meat in milk, then two verses are not enough.  We need three, one for cooking, one for eating and one for benefit.  Nevertheless, there are only two mitzvot, one to prohibit cooking and one to prohibit eating and getting benefit.

            The dinei hamitzvah section of this essay lays out the parameters of what is prohibited, but it also goes into detail about rabbinic extensions of these mitzvot. 

D’oriata these mitzvot apply to the meat of kosher domestic animals.  They do not apply to meat of wild animals, birds, kosher grasshoppers, or non-kosher animals.  The midrash halachah derives this from the Torah’s use of the term “kid” in place of the more natural “meat.”  Each use of that unusual word comes to exclude something we might otherwise have thought was included: non-kosher animals, wild animals and birds. 

The milk must come from a living animal; the Torah does not forbid cooking meat in milk taken from a dead animal.  Thus, Torah law would permit milk in the udder of a slaughtered animal, but the rabbis forbade eating the udder until the milk was drained out of it.  The author lists other biological variations on this theme which you can cover on your own if you like.

            The rabbis extended the prohibitions to provide a fence around the d’oraita prohibitions.  Lest people get confused about what type of meat the mitzvah prohibits, the rabbis forbade eating any meat that might be confused with the meat covered by the mitzvah when that meat was cooked with milk.  So the rabbis prohibited eating birds and wild animals cooked in milk.  They did not prohibit eating fish or kosher grasshoppers cooked in milk, since people are unlikely to get confused about those.  But the rabbis only prohibited eating; they did not prohibit cooking or benefiting from these animals cooked in milk.

            The rabbis prohibited putting meat and milk foods on the dinner table at the same meal.  According to some authorities, says the author, the rabbis required us to wait some undefined period of time between eating meat food and eating milk food.

            Also, the rabbis were stricter about mixtures of milk and meat cooking together than they were about mixtures of prohibited food into permitted food, and the author explains this difference in detail. 

            The author explained earlier that d’oraita, when forbidden food gets mixed with permissible food, the entire mixture is permissible as long as the forbidden food does not change the flavor. That is a hard standard to apply, since one would have to taste the mixture to figure out whether it is OK to eat the mixture.  D’rabanan, the mixture is permitted only if there are 60 or more parts of the permitted food by volume as against one part of the forbidden food.  There are several exceptions to this rule, for example where the forbidden food remains distinct from the permitted food, and where even that small amount of forbidden food changes the flavor.

            To illustrate, let’s say you purchased several cans of chicken broth to make soup.  You cook all the canned soup together, and then notice that one of the cans was not kosher chicken broth but rather was non-kosher beef broth.  That beef broth would be n’veilah, made from kosher animals that died by some mechanism other than shchitah.  (To keep the discussion clear we will base our calculations on the number of cans of soup.  That oversimplifies, as we are ignoring the rest of the ingredients in the soup.  We would have to count those other ingredients in the calculation to do this halachic analysis accurately.)    D’rabanan, if there were sixty cans of kosher chicken soup, then the results depend on how many cans of n’veilah beef broth got cooked in. If just one can got mixed in the entire mixture is permissible.  More than one and the entire mixture is prohibited.

Let’s assume that there were equal numbers of cans of kosher chicken broth and non-kosher beef broth, so the entire stew is prohibited.  Then some of that mixture accidentally gets mixed into a different pot of kosher chicken broth.  D’oraita if there is still no taste of beef broth it’s all permitted.  If the beef flavor is discernable, the mixture is prohibited. D’rabanan, though, things are more complicated.  We need to figure out whether there is one part of the n’veilah beef broth against 60 parts of the kosher chicken broth so that the entire mixture would be permitted, or whether there was more than one part of the beef broth to 60 parts of chicken broth that would make the second mixture prohibited.  But there are two ways to make that calculation.  We might count the entire first broth mixture as prohibited and measure it against the second broth; that makes sense since we decided earlier that the first broth mixture was prohibited.  Or we might count only the n’veilah beef broth content of the first mixture.  We could distinguish the n’veilah beef broth from the kosher chicken broth in the first mixture, and we cannot distinguish the first mixture from the second mixture.  In this case where we are dealing with n’veilah broth mixed with kosher broth, the author says, we calculate the second way; we count the n’veilah broth against all of the kosher chicken broth in the total of the second mixture.  So let’s say that the first mixture had one can of n’veilah broth and one kosher can of chicken broth. If the second mixture had 59 or more cans of kosher chicken broth, the entire mixture is now permitted.  There was one kosher can of broth in the first mixture added to the 59 in the second mixture, and those together get measured against the one can of n’veilah beef broth.  Of course, if the second pot had fewer than 59 cans of kosher chicken broth, the entire mixture is prohibited.

The author explains that the situation is different for meat and milk cooked together.  Let’s say you have made a beef stew out of kosher beef.  Then some milk accidentally gets added.  There is not enough milk to affect the flavor, so d’oraita the stew is still permitted.  D’rabanan we need to calculate whether there are sixty or more parts of beef stew as against one part of milk.  If so, the entire mixture is permitted.  If there is more milk than that, the mixture is prohibited.  So far, so good.

Now assume that there was enough milk to make the stew prohibited.  Then that prohibited stew accidentally gets mixed into another pot of kosher beef stew.  The flavor is still the same, so d’oraita the second stew is permitted.  But d’rabanan we have the same dilemma we discussed earlier.  We might count the first stew as against the second stew, or we might only count the milk and measure the milk against the remaining volume of both the first stew and the second stew.  Here, in a case of milk and meat cooked together, the rabbis are stricter.  They say that because the prohibition involved is cooking milk and meat together, here we will measure the first way, and count the entire prohibited first stew as against the kosher second stew. 

There is another principle relevant here that the author does not mention.  I want to mention it lest we get misled in practical cases.  The principles of bitul only apply when the permitted and prohibited substances were mixed by accident or for reasons completely unrelated to kashrut.  You cannot use bitul to remedy an already existing prohibition.  Go back to the case of the n’veilah beef broth and kosher chicken broth.  Let’s say you have a mixture of 20 cans of kosher chicken broth with one can of n’veilah beef broth.  You might think the thing to do is to add another 40 cans of kosher chicken broth.  Then you would have 60 cans of kosher broth as against one can of n’veilah broth, and that would be permitted.  But you have added the extra chicken broth on purpose to make the formerly forbidden broth permitted.  If you try to rely on bitul to resolve a situation by adding kosher ingredients on purpose, bitul does not work.

The essay ends with the usual information.  Eating milk and meat cooked together is punishable by malkos, but getting benefit from meat and milk cooked together is not punishable because it is possible to get benefit without taking any direct action.  The authorities debate whether using meat and milk cooked together as a skin lotion is or is not punishable.

 

We have seen the author explain lots of halachic and conceptual detail in these last two essays.  He has several themes.  He gives us lots of practice in distinguishing d’oraisa and d’rabanan.  He also explores the concepts of bitul and assur b’hana’ah in more detail than he has covered other topics. He has not covered either topic fully.  For example, he mentions mixtures that are yavesh b’yavesh but he does not explain the rules for those kinds of mixtures. He mentions an exception when the prohibited item that gets mixed in has an important status on its own, but does not explain how those cases work.

The author explains in mitzvah # 111 why he went into more detail on these topics:  the principles he explains will come up frequently in further study of halachic matters.  Originally the author was concerned with keeping his son out of trouble and getting his son to pay more attention to learning Torah.  Here the author’s enterprise seems to have developed another level of depth.  He is thinking about his students continuing their study of halachah, and he wants them to be not only interested, but also well prepared. 

 

           

           

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