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Pesachim 35

35b

QUESTION: The Mishnah (35a) states that we cannot fulfill the obligation to eat Matzah on Pesach night with Matzah of Tevel and Ma'aser Rishon from which Terumah was not yet taken, nor with Matzah of Ma'aser Sheni or Hekdesh that was not redeemed.

The Gemara concludes that this is derived from a verse which teaches that only an item which can become Asur as Chametz can be used for Matzah to fulfill the Mitzvah. Something which has another Isur, such as Tevel, which cannot become Asur because of Chametz, cannot be used for fulfilling the Mitzvah of eating Matzah.

RASHI on the Mishnah (DH v'ha'Kohanim) cites this reason. In the Gemara, though, Rashi (DH Tavul mid'Rabanan) says that the reason one cannot fulfill his obligation to eat Matzah with fruit of Tevel which was grown in a perforated pot (an "Atzitz Nakuv," the content of which is only Tevel mid'Rabanan) is because of the principle of "Mitzvah ha'Ba'ah b'Aveirah." Why does Rashi ignore the reason that he mentioned in the Mishnah, which is also the Gemara's reason?

Furthermore, Rashi (DH Demai) explains why the Gemara says that it is obvious that one may not fulfill his obligation to eat Matzah by eating Matzah of Demai. Rashi says it is either because of the Derashah (that teaches that one can only fulfill the Mitzvah with items that can become Asur because of Chametz), or because of the principle of "Mitzvah ha'Ba'ah b'Aveirah." Why does Rashi mention both reasons here, while in his comments on the Mishnah, Rashi mentions only the reason of the Derashah, and in his comments later in the Gemara he mentions only the reason of "Mitzvah ha'Ba'ah b'Aveirah?"

ANSWER: The MAHARSHA explains that the Derashah of the Gemara applies only when there is an Isur d'Oraisa forbidding the food item, which precludes the Isur of Chametz from being the only Isur d'Oraisa. But if the food is only Asur because of an Isur d'Rabanan, then the Derashah does not tell us that such Matzah cannot be used for the Mitzvah. The Matzah is Kosher for the Mitzvah, for it has no other Isur d'Oraisa! That is why Rashi on the Mishnah mentions the Gemara's reason (the Derashah) -- the Mishnah is talking about an Isur d'Oraisa.

Rashi later in the Gemara is discussing Tevel in a perforated pot, which is only Asur mid'Rabanan, and therefore Rashi had to say that the reason it cannot be used for Matzah is because of "Mitzvah ha'Ba'ah b'Aveirah."

When Rashi discusses Demai, though, Rashi is uncertain concerning the Gemara's intention. When the Gemara says it is obvious that Demai cannot be used, does the Gemara mean that it is obvious because it is a *Safek Isur d'Oraisa* of Tevel, or because it is a *Vadai Isur d'Rabanan* of Demai? If Demai cannot be used for the Mitzvah of Matzah because of the Safek Isur d'Oraisa, then the reason is because of the Derashah mentioned in the Gemara. If Demai cannot be used because it is a Vadai Isur d'Rabanan, then the reason of the Derashah does not apply and the reason must be because of "Mitzvah ha'Ba'ah b'Aveirah." Therefore, Rashi mentioned both reasons with regard to Demai in order to cover both possible ways of understanding the Gemara's statement!

QUESTION: The Gemara concludes that the reason why Tevel cannot be used for the Mitzvah of Matzah is because of a Derashah that teaches that only something which can be Asur because of Chametz may be used for the Mitzvah of Matzah. Tevel does not become Asur with the Isur of Chametz, because "Ein Isur Chal Al Isur" (an item that is forbidden because of one Isur cannot become forbidden because of another Isur; this is the opinion of Rebbi Shimon).

Why doesn't the Gemara mention another, more basic reason why one cannot use Matzah of Tevel to fulfill the Mitzvah of Matzah -- it is a "Mitzvah ha'Ba'ah b'Aveirah, as Rashi mentions numerous times in the Gemara! Why does the Gemara make no mention of that principle, but instead look for another source? (TOSFOS Sukah 30a DH Mishum)

Furthermore, we do not rule like Rebbi Shimon, but like the Rabanan who say that an object *can* become Asur with an additional Isur ("Isur Chal Al Isur") when the second Isur is a greater Isur (such as an Isur Kolel). According to the Rabanan, wheat that is Asur because of Tevel can become Asur because of Chametz as well. If so, will the Mishnah's ruling, that one does not fulfill the Mitzvah of eating Matzah by eating Matzah made from Tevel, still apply?

ANSWERS:

(a) TOSFOS RABEINU PERETZ and TOSFOS SHANZ (here, and "Ba'alei ha'Tosfos" cited by the RAMBAN and RITVA here and in Sukah 31a) explain that indeed, we do not follow the Halachah as stated in the Mishnah, and if one eats Matzah of Tevel he fulfills the Mitzvah of eating Matzah. Why is there no problem of "Mitzvah ha'Ba'ah b'Aveirah?" Because the principle of "Mitzvah ha'Ba'ah b'Aveirah" applies only to an object which serves to be "Meratzeh Hashem" (i.e. to ask Hashem for forgiveness) or to praise Hashem. We find the principle of "Mitzvah ha'Ba'ah b'Aveirah" applied in the Gemara in only three instances. (1) A stolen animal that is brought as a Korban is invalid. A Korban is brought to be Meratzeh Hashem. (2) A stolen Lulav is invalid, because a Lulav is used to be Meratzeh and Mehalel Hashem (see Rashi, Sukah 36b, DH Ela l'Rav). (3) A Shofar that is Asur b'Hana'ah cannot be used because of "Mitzvah ha'Ba'ah b'Aveirah" (Rosh Hashanah 28a, according to some Rishonim), because a Shofar, too, is meant to be Meratzeh Hashem (Rosh Hashanah 26a). Only where the role of the Mitzvah is to be Meratzeh Hashem does the principle of "Mitzvah ha'Ba'ah b'Aveirah" apply, but not for any other Mitzvah.

(b) The RITVA (here, and in Rosh Hashanah 28a and Sukah 30b) proves from the Yerushalmi that the principle of "Mitzvah ha'Ba'ah b'Aveirah" does not apply here, because it only applies when the *performance of the Mitzvah itself causes one to transgress an Aveirah*. For example, by making an animal that belongs to someone else a Korban or by designating someone else's branch as a Lulav, one acquires the object through changing the name of the object (Shinuy ha'Shem) into a "Korban" or a "Lulav," and thereby transgresses the Isur of stealing. The very act of making the object into one of a Mitzvah was associated with stealing the object. In such a case, the Mitzvah is a "Mitzvah ha'Ba'ah b'Aveirah." When one eats Matzah of Tevel, though, the fact that one fulfills a Mitzvah by eating it has nothing to do with the Aveirah. Even if, by eating the Matzah of Tevel, one would not fulfill the Mitzvah, he would still be transgressing the Isur of eating Tevel! The Isur does not play a role in the performance of the Aveirah. Therefore, the laws of "Mitzvah ha'Ba'ah b'Aveirah" do not apply here (and the Mishnah is only in accordance with the opinion of Rebbi Shimon).

(c) Some suggest that the principle of "Mitzvah ha'Ba'ah b'Aveirah" applies only when the Aveirah which is done with the object *leaves an impression on the object*. That is, the object is still affected by the Aveirah that was committed with it. For example, a stolen object has a Kinyan Gezeilah on it even after the act of the Gezeilah has been completed (because of which the robber can acquire the object through making a Shinuy). Likewise, if an object is worshipped as Avodah Zarah, the item remains forbidden as an object of Avodah Zarah even after the act of the transgression is over.

Tevel, on the other hand, is not an Aveirah. Tevel is merely the status of produce before its Terumos have been removed. The Aveirah occurs only when Tevel is eaten. Since the item of Tevel itself is not an item of Aveirah, one is able to fulfill a Mitzvah with it (b'di'Eved), and it is not a "Mitzvah ha'Ba'ah b'Aveirah." (CHEMDAS SHLOMO, OC #30. Tosfos Sukah 30a, DH Mishum, appears to consider this opinion but eventually rejects it. However, support can be drawn for this view from the Yerushalmi cited by the Ritva.)

Alternatively, the RAMBAN (in our Sugya, see also Milchamos in the beginning of the Maseches) suggests that perhaps "Mitzvah ha'Ba'ah b'Aveirah" does not apply to a relatively "weak" prohibition like that of Tevel, which it is in one's ability to remove (by separating Terumah) from it. Once again, the Mishnah must then be expressing the opinion of Rebbi Shimon, and it is not the Halachah.

(d) The RAMBAN (in his conclusive suggestion, in our Sugya) and his disciple, RABEINU DAVID, explain that "Mitzvah ha'Ba'ah b'Aveirah" is a principle learned from Divrei Kabalah, as it is derived from a verse in Malachi (Sukah 30a). It does not have a status of a Torah principle. Therefore, the Gemara wanted to show that at least according to Rebbi Shimon, we even have a source from the Torah which prevents one from using Tevel for Matzah. Even according to the Rabanan of Rebbi Shimon, though, one does not fulfill the Mitzvah of Matzah by eating Tevel, but only mi'Divrei Kabalah and not mid'Oraisa.

This might also be the opinion of RASHI who keeps mentioning "Mitzvah ha'Ba'ah b'Aveirah" in our Sugya (and in Rashi 39a DH u'Demai).

(e) Others suggest that the principle of "Mitzvah ha'Ba'ah b'Aveirah" applies in every case when an Aveirah is committed at the same time the Mitzvah is performed. However, it does not apply in the case of our Mishnah, because in our case we apply the principle of "Aseh Docheh Lo Ta'aseh;" the performance of a Mitzvas Aseh overrides a Lo Ta'aseh, so that one may -- and is bidden to -- perform the Mitzvah and is not considered to have transgressed the Aveirah. (In fact, TOSFOS in Kidushin (38a) cites a Yerushalmi that says that one should be permitted to eat Matzah of Chadash for this reason.) Therefore, the principle of "Mitzvah ha'Ba'ah b'Aveirah" does not apply here, because the Aveirah is permitted for the sake of the Mitzvah.

However, others argue, pointing out a number of reasons why the principle of "Aseh Docheh Lo Ta'aseh" does not apply in our case:

1. Eating Tevel is punishable with Misah, and a Mitzvas Aseh cannot override a Lav which is punishable with Misah (SHA'AGAS ARYEH 96).

2. RABEINU DAVID explains that the principle of "Aseh Docheh Lo Ta'aseh" applies only when the Torah itself forces the Aseh and the Lo Ta'aseh into opposition. But if the confrontation between the Aseh and the Lo Ta'aseh comes only as a result of one's particular situation and circumstances (for example, he has no other Matzah available other than Matzah of Tevel), then "Aseh Docheh Lo Ta'aseh" does not apply. In such a situation, the Torah telling the person to eat Tevel. (This is not the case with other instances of "Aseh Docheh Lo Ta'aseh," such as the Aseh of Milah which overrides the Lo Ta'aseh of cutting Tzara'as from the body. In that case, the confrontation between the two is created by the Aseh of Milah itself, which tells us "Cut this skin even though it has Tzara'as." With regard to Matzah, the Mitzvah never directs us, "Eat this Tevel.") (A very similar answer is suggested by SHA'AGAS ARYEH loc. cit., echoing the opinion of BEIS YOSEF OC #11)

3. The MINCHAS CHINUCH (10:13) points out that the Mitzvah is only to eat a k'Zayis of Matzah. After the initial k'Zayis, there is no longer a Mitzvas Aseh to eat Matzah, so it would be Asur to eat Matzah of Tevel after the first k'Zayis. Consequently, Matzah of Tevel may not be used even for the first k'Zayis, because the Gemara says that the Matzah used for the Mitzvah must be Matzah which is fit for eating all seven (or eight) days of the festival. Tevel, though, cannot be eaten after the first k'Zayis on the first evening, after which the Mitzvas Aseh expires.

4. Finally, it would appear that the principle of "Aseh Docheh Lo Ta'aseh" should not apply here, because one may not do a Mitzvah at the expense of someone else's money! If one eats Tevel in order to fulfill the Mitzvah of eating Matzah, one is stealing from the Kohen, by not separating their portion from the Tevel. It is obvious that one may not steal someone else's Lulav if one has no other Lulav! Similarly, one may not steal the property of the Kohanim (Terumos and Ma'aseros) in order to fulfill a Mitzvah. (M. Kornfeld)