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Pesachim 36

1) TWO "ISURIM" THAT TAKE EFFECT SIMULTANEOUSLY

QUESTION: The Gemara cites the Beraisa from which we see the opinion of Rebbi Shimon, that "Ein Isur Chal Al Isur" (an item that is forbidden because of one Isur cannot become forbidden because of another Isur). The Beraisa states that one who eats Neveilah on Yom Kipur is Patur from being punished for eating on Yom Kipur, since the Isur of eating on Yom Kipur does not take effect upon the pre-existing Isur of Neveilah. RASHI (DH ha'Ochel) points out that even if the animal was alive when Yom Kipur arrived and then died and became a Neveilah during the day, nevertheless the animal is only Asur because of Neveilah and not because of the Isur of eating on Yom Kipur. The reason, Rashi says, is because when Yom Kipur began, the animal was already Asur because of another Isur -- Ever Min ha'Chai.

TOSFOS (DH ha'Ochel) and other Rishonim ask that Ever Min ha'Chai applies only when the animal is alive. At the moment the animal dies, the Isur of Ever Min ha'Chai departs and the new Isur of Neveilah takes effect. At that moment, the new Isur of Neveilah and the Isur of Yom Kipur take effect *simultaneously*. Rebbi Shimon, who says "Ein Isur Chal Al Isur," agrees, though, that two Isurim *can* take effect simultaneously; "Ein Isur Chal Al Isur" applies only when one Isur precedes the arrival of another Isur. If so, why does the Isur of Ever Min ha'Chai prevent the Isur of Yom Kipur from taking effect at the moment the animal dies on Yom Kipur? Both Isurim -- that of Yom Kipur and that of Neveilah -- should take effect simultaneously!

ANSWER: Rashi apparently learns that two Isurim will take effect simultaneously only when the *causes* for the Isurim occur at the same time. In the case of the animal that dies on Yom Kipur, though, the cause for the Isur of Yom Kipur occurs earlier, when the day begins (and the animal was still prohibited due to Ever Min ha'Chai), whereas the cause for the Isur of Neveilah occurs later, when the animal dies. In such a case, the two Isurim cannot take effect at the same time.

The logic behind this is that the Isur which is caused now (Neveilah) has an active reason (the death of the animal) for it to take effect now. Since the Isur of Ever Min ha'Chai no longer applies at this moment, there is nothing stopping it from taking effect. On the other hand, the Isur which was caused earlier (i.e. Yom Kipur) and something preventing it from taking effect (the Isur of Ever Min ha'Chai), has to wait for a moment that there is no Isur at all on the animal, in order for it to begin taking effect. If any Isur remains on the animal, such as the Isur of Neveilah, the Isur of Yom Kipur will stay in limbo.

36b

QUESTION: Rebbi Akiva says that a person cannot fulfill his Mitzvah to eat Matzah by eating Matzah made from Bikurim. His reason is because the Matzah used for the Mitzvah must be able to be eaten in all parts of the land of Israel ("Ne'echal b'Chol Moshavos"). Bikurim, though, can only be eaten in Yerushalayim.

The Gemara continues and asks that for the same reason, one should not be able to fulfill his Mitzvah with Matzah of Ma'aser Sheni, because it, too, must be eaten in Yerushalayim. The Gemara answers that the Torah specifically included Matzah of Ma'aser Sheni as Kosher for fulfilling the Mitzvah, because it used the word "[You shall eat] Matzos" in the plural when it could have said simply, "Matzah." It must be that the Torah is teaching that the Mitzvah can be fulfilled with another type of Matzah -- Ma'aser Sheni.

Why do we assume that the Derashah comes to include Ma'aser Sheni, and not Bikurim? Answers the Gemara, since Ma'aser Sheni has a way of being eaten in all of Israel, thus meeting the requirements of Matzah Shel Mitzvah, it makes sense that the Torah would include it. The Gemara goes on to explain that Ma'aser Sheni can be eaten in all of Israel if it became Tamei, in which case it could be redeemed even in Yerushalayim.

RASHI (DH Af Ma'aser Sheni) says that Ma'aser Sheni cannot be redeemed once it has arrived in Yerushalayim, and therefore it must be eaten in Yerushalayim and cannot be eaten in any other place. The reason is because the Gemara in Makos (20a) says that "Mechitzos Liklot mid'Rabanan" -- the Rabanan enacted that once the produce of Ma'aser Sheni arrives inside the Mechitzos, or boundaries, of Yerushalayim, it cannot be redeemed.

(a) How can Rashi suggest that "Mechitzos Liklot" is only mid'Rabanan? The Gemara says that the reason why one would not fulfill the Mitzvah to eat Matzah by eating Ma'aser Sheni is because the verse requires that the Matzah be able to be eaten in all places. According to Rashi's explanation, Ma'aser Sheni *may be eaten* in all places mid'Oraisa! The Torah permits redeeming Ma'aser Sheni, even after it has arrived in Yerushalayim; the Rabanan enacted that it may not be redeemed! How could the Gemara even suggest that one cannot fulfill the Mitzvah with Ma'aser Sheni, if it is only the Rabanan who enacted that it cannot be redeemed? It must be that the Gemara follows the opinion that "Mechitzos Liklot" is *mid'Oraisa* and not like Rashi says! (TOSFOS DH d'Amar)

(b) Even if Rashi can answer this question and find a way of justifying why -- even though mid'Oraisa Ma'aser Sheni may be redeemed -- an extra source in the Torah is necessary to teach that Ma'aser Sheni may be used for the Mitzvah of Matzah, what forced Rashi to say that the Gemara follows the opinion that "Mechitzos Liklot" is mid'Rabanan? Rashi should have said simply that the Gemara follows the opinion that "Mechitzos Liklot" is mid'Oraisa, like Tosfos says, and then the Gemara would be well understood! (TZELACH)

(c) Even if Rashi could explain, logically, that there is a basis to exclude items that mid'Rabanan cannot be eaten in all places, the Beraisa itself is a problem. The Beraisa says that the word "Matzos" in the verse teaches that Ma'aser Sheni may be used for the Mitzvah. How can a verse teach us that Ma'aser Sheni can be used, when the only reason why it should not be used is because the *Rabanan* decreed that it cannot be eaten in all places! The Rabanan's decree came *after* the verse in the Torah was written! (OHR CHADASH; REBBI AKIVA EIGER leaves this question with a "Tzarich Iyun Gadol")

ANSWERS:

(a) Logically, the argument could be made that the Isur d'Rabanan not to redeem Ma'aser Sheni could affect whether Ma'aser Sheni fits into the Torah's category of something that can be eaten in all places. Once the Rabanan decree that Ma'aser Sheni in Yerushalayim cannot be redeemed, that makes it considered *mid'Oraisa* as not able to be eaten in all places, and thus mid'Oraisa one cannot use it for Matzah. This logic is suggested by Tosfos himself (38a, DH Aval), and Rashi gives a parallel line of reasoning (35b, DH Tavul mid'Rabanan) when he says that an Aveirah d'Rabanan could prevent one from fulfilling the Mitzvah of Matzah because of "Mitzvah ha'Ba'ah b'Aveirah," even though the Aveirah is only mid'Rabanan. (See Insights to 35:1, where we cited the Maharsha who shows that this does not always apply, and an Isur d'Rabanan will not necessarily make the Derashah of "Lo Sochal Alav Chametz" apply, and each case needs to be analyzed separately. DEVAR SHMUEL)

(b) In the Sugya in Makos which Rashi cites, there is no mention of any opinion that "Mechitzos Liklot" is mid'Oraisa. The only opinion mentioned is Rava's, who says that it is mid'Rabanan, and no one there seems to argue. Rashi perhaps maintains that the *only* opinion is that it is mid'Rabanan. The other Rishonim, such as Tosfos, learn that this point -- whether it is mid'Rabanan or mid'Oraisa -- is indeed the subject of debate in the Sugya there. Rashi learned that the only question in the Sugya there is *how much* the Rabanan were Machmir with their decree that the Mechitzos are Kolet. This seems to be clear from Rashi in Bava Metzia (53b).

Tosfos, though, who learns that the status of "Mechitzos Liklot" is debated in Makos, has the option of explaining here that our Sugya holds that it is mid'Oraisa. Rashi, though, holds that there is no other option, and therefore he explains that the reason Ma'aser Sheni cannot be redeemed in Yerushalayim is because of the Rabanan's enactment that the Mechitzos are Kolet.

(c) The DEVAR SHMUEL suggests that the Derashah that the word "Matzos" comes to include Ma'aser Sheni is not teaching specifically that one may eat Ma'aser Sheni to fulfill the Mitzvah of eating Matzah, because, as we said, as far as the Torah is concerned one may eat Ma'aser Sheni for Matzah because mid'Oraisa it may be eaten in all places. Rather, the Derashah of "Matzos" teaches the other laws mentioned at the end of the Daf. It teaches that one may use different types of Matzah. Only tangentially does it teach that *had there been* a prohibition against eating Ma'aser Sheni in all places, it would still have been permissible to use it for Matzah, as long as there is *any way* of eating elsewhere (such as if it becomes Tamei it may be redeemed and eaten elsewhere).

(REBBI AKIVA EIGER, who leaves the question unanswered, perhaps did not accept this answer, because according to this explanation the words of the Gemara would be very forced. The Gemara asks, "Why do you see fit to [use the Derashah to] include Ma'aser Sheni and not Bikurim?" This implies that the Gemara is asking how we know which of these two to include -- Ma'aser Sheni or Bikurim. That is, the Derashah of "Matzos" is only including one or the other. According to the explanation of the Devar Shmuel, though, the Derashah is not relating directly to Ma'aser Sheni. The Gemara should have asked instead, "Mai Ta'ama" -- "What is the reason you are including Ma'aser Sheni," and not "How do you know which one to include.")

The Gemara asks how is Ma'aser Sheni considered fit to be eaten in all places ("Ne'echal b'Chol Moshavos"). The Gemara answers that if it were to become Tamei, it could be redeemed and eaten outside Yerushalayim. Why did the Gemara ignore the much simpler case of eating Ma'aser Sheni outside Yerushalayim? One may redeem it *before* bringing it to Yerushalayim, whether or not it is Tamei!

ANSWERS:

(a) TOSFOS RABEINU PERETZ explains that the Gemara is only discussing Ma'aser Sheni which already entered Yerushalayim. Such Ma'aser Sheni cannot be redeemed unless it becomes Tamei. This also appears to be the approach of RASHI (DH Af Ma'aser Sheni b'Yerushalayim) and TOSFOS (38a, DH Oh).

(b) The MAHARAM CHALAVAH explains that when one redeems Ma'aser Sheni before it comes to Yerushalayim, one still has to bring the money to Yerushalayim, because the money is considered Ma'aser Sheni. The produce that was redeemed, though, loses its status of Ma'aser Sheni. Therefore, when one eats that produce outside of Yerushalayim, one is not eating *Ma'aser Sheni*! On the other hand, when Ma'aser Sheni has already entered Yerushalayim and it becomes Tamei and is redeemed, the produce itself remains with the status of Ma'aser Sheni, since it has entered within the Mechitzos of Yerushalayim. Redeeming it with money does not remove its status of Ma'aser Sheni, but merely permits the Ma'aser Sheni to be taken out of Yerushalayim.