QUESTION: The Mishnah states that a person who is involved in rescuing
someone from underneath a pile of stones may have someone slaughter the
Korban Pesach for him. Even though it might be discovered that the person
beneath the stones is dead and thus the person searching for him is Tamei,
at the moment that the Korban Pesach is brought he is not considered Tamei.
Therefore, if his Korban Pesach was brought and then he discovered that the
person he was searching for was dead, he does not have to bring a Pesach
Sheni.
The Gemara stipulates that this applies only if the pile of stones in which
he was searching was a long, horizontal pile, in which case we do not assume
that he hovered over the corpse before the Shechitas Ha'ii. If the pile of
stones is in a circular shape, then we assume that he hovered above the
corpse even before the Pesach was sacrificed, and he becameis Tamei for
being an Ohel over a Mes. He is required to bring the Pesach Sheni. RASHI
says that in the case of a long, horizontal pile, we do not assume that he
is Tamei, because there is a doubt whether he was Tamei at the time that his
Korban was offered. Therefore, he does not bring a Pesach Sheni because he
might have already fulfilled his obligation. However, we do not assume that
he was *definitely* Tahor. Rather, it is only a Safek, and the Safek does
not require that he bring another Korban Pesach.
Why is he not considered to be definitely Tahor? After all, he has a
Chazakah that he is Tahor! Apparently, even though we usually follow a
"Chezkas Tahor," here we do not say that he was Tahor when his Korban was
brought since he was Tahor before that time, because now he is definitely
Tamei since the dead body was found, and thus his present status of Tamei
conflicts with the Chezkas Tahor and thus it remains a Safek.
The RASHASH asks why Rashi says that the person has a Safek whether he
fulfilled the Mitzvah of Korban Pesach or not? We have clear rules for cases
of Safek Tum'ah! A Safek Tum'ah in Reshus ha'Yachid is considered to be
definitely Tamei, while a Safek Tum'ah in Reshus ha'Rabim is considered to
be definitely Tahor. When, then, does Rashi say that the person remains with
a Safek? The pile of stones was most likely a Reshus ha'Yachid, and
therefore he should be definitely Tamei! And if the pile was a Reshus
ha'Rabim, then he should be definitely Tahor, and not a Safek!
ANSWER: Here, the question is not one of Safek Tum'ah at all. We know that
he became Tamei, and we are not discussing a question of Tum'ah, such as the
status of objects that he touched in the interim time before it was known
for certain that he was Tamei (that is, when there was a Safek if he was
Tamei). Rather, the question here is only whether he fulfilled the
obligation of bringing the Korban Pesach or not. Since the consequences of
the doubt have nothing to do with the laws of Tum'ah, we follow the normal
rule of Safek d'Oraisa l'Chumra and not the rules of Safek Tum'ah. (RAV
ELAZAR MANN SHACH, shlit'a, AVI EZRI, Hilchos Korban Pesach 5:10)
QUESTION: Rebbi Shimon derives from the verse, "You may not slaughter the
Pesach in one of your gates" (Devarim 16:5) that one who brings a Korban
Pesach upon a Bamas Yachid (a privately-owned altar) during a time when
Bamos are prohibited transgresses a Lo Ta'aseh.
RASHI asks why Rebbi Shimon applies this Isur only to a Bamas Yachid, and
not to a Bamas Tzibur, a publicly-owned Bamah. Rebbi Shimon should have said
that there is also a Lo Ta'aseh to bring a Korban Pesach on a Bamas *Tzibur*
during a time when Bamos are prohibited. (Even though the verse implies only
a Bamas Yachid, as it says "in one of your gates," Rashi apparently views it
as illogical to suggest that we must differentiate between the Halachos of a
Bamas Yachid and a Bamas Tzibur during a time when all Bamos are forbidden.)
Rashi answers that at the time that Bamos were forbidden, there was no such
thing as a Bamas Tzibur, since it is also a Bamah. (Apparently, if a Tzibur
got together during that time and built a communal Bamah, it would only be
considered a Bamas Yachid.) Rashi adds that after Shiloh was destroyed,
Bamos (both Yachid and Tzibur) were permitted until the Beis ha'Mikdash was
built. When the Beis ha'Mikdash was built, all Bamos, including Bamos
Tzibur, became forbidden.
If that is Rashi's answer, what was his assumption in his question? It must
be that Rashi assumed that even during times that Bamos were forbidden, it
was permitted to have a Bamas Tzibur, and if so, it should have been
forbidden by a Lo Ta'aseh to offer a Korban Pesach upon a Bamas Tzibur.
However, if that is what Rashi thought in his question, then what was his
question altogether? If it was permitted to have a Bamas Tzibur, when Bamas
Yachid is prohibited, then it was certainly permitted to bring a Korban
Pesach on it. In fact, it was a *Mitzvah* to bring a Korban Pesach on it
(Megilah 9b)! So perhaps Rebbi Shimon mentioned Bamas Yachid because it is
*permitted* to offer a Korban Pesach on a Bamas Tzibur even when Bamas
Yachid is prohibited.
Second, why, in his answer, does Rashi say that at the time when Bamos were
forbidden, there was no such thing as a Bamas Tzibur? What about in the time
of the Mishkan in Shiloh? When the Aron ha'Kodesh was in Shiloh, Bamos
Yachid were forbidden, and yet the Mizbe'ach in Shiloh was a Bamas Tzibur!
ANSWER: Rashi is attempting to clarify this very point -- the exact status
of Mishkan Shiloh. Rashi is saying that the Mizbe'ach in Shiloh was not
considered a Bamas Tzibur, but a *Mishkan* (and therefore even Korbanos
that are not permitted on a Bamas Tzibur, such as Korbenos Chovah that do
not have a set time, may be offered in Shiloh -- see Megilah 9b).
In order to clarify this point, Rashi asks why Rebbi Shimon said that at a
time when Bamos are forbidden, then it is forbidden with a Lo Ta'aseh to
bring the Korban Pesach upon a *Bamas Yachid*. It would seem from this
phraseology that there was a time when only Bamas Yachid was forbidden, but
Bamas Tzibur is permitted. That is why Rebbi Shimon has to specify that
bringing the Pesach on *Bamos Yachid* is forbidden with a Lo Ta'aseh,
because Bamos Tzibur are Mutar. This period must have been when the Mishkan
was standing in Shiloh, and Bamos were prohibited but the Mishkan itself was
used.
Rashi however does not accept this position. Instead, he explains that the
reason Rebbi Shimon says that the Lo Ta'aseh applies only to a Bamas Yachid
is because of exactly the opposite reason -- there *cannot be* a Bamas
Tzibur at the time that Bamos are forbidden. Rebbi Shimon specifies Bamas
Yachid *not* to imply that a Bamas Tzibur is *permitted*, but to show that
it is certainly *prohibited*, since there is actually no such thing as a
Bamas Tzibur at a time when Bamos are forbidden. The Mishkan in Shiloh was
not a Bamas Tzibur, but it was a Mishkan. This, of course, also answers the
second question. Rashi holds that the Mishkan of Shiloh was not considered a
Bamah at all, but a full-fledged Mishkan.
This question of Rashi -- whether Shiloh had a status of Bamas Tzibur or
Mishkan -- appears to be the subject of debate in the Yerushalmi (Megilah
1:12) and depends on a variant reading of a Tosefta in Zevachim (13:8). The
Tosefta in Zevachim asks what is considered "a Bamah Gedolah (Tzibur) at the
time when *Bamos are permitted*," and it answers that wherever the Ohel Moed
is present without the Aron ha'Kodesh, it is a Bamas Tzibur. According to
this reading, the Tosefta, like Rashi, is assuming that Bamas Tzibur can
only exist when Bamos are permitted -- for it, too, is a Bamah.
There is another reading of that Tosefta, which is the text that the Aruch
(s.v. Bamah) and Rabeinu Chananel had, in which the Tosefta asks what is
considered "a Bamah Gedolah at the time when Bamos are *forbidden*," and it
answers wherever the Ohel Moed is present without the Aron ha'Kodesh.
According to this reading, it is clear that Bamas Tzibur *can* exist even
when Bamas Yachid is prohibited. This must be referring to the period of
Mishkan Shiloh (after the Arojn ha'Kodesh was captured by the Plishtim),
which is the only time when a Bamas Tzibur could have existed even though
Bamos Yachid were prohibited.
The two readings of the Tosefta differ concerning the status of Mishkan
Shiloh, which existed at a time when Bamos Yachid were forbidden and the
Ohel Moed was present without the Aron ha'Kodesh. Originally, the Aron was
present in Shiloh, at which time it certainly was considered a Mishkan and
not a Bamah. But when the Aron was captured from there and taken away, did
Shiloh revert to the status of a Bamas Tzibur, or since it was originally
built with the Aron there, it remained a Mishkan and was not a Bamah. Both
Nov and Givon were built when the Aron was not present -- see Rashi Pesachim
38b DH Zos Omeres.
(It may be pointed out that the words of Rashi in our Sugya contradict two
of the MESHECH CHOCHMAH's theses (Devarim 12:8). The Meshech Chochmah
proposes that 1. After the Aron was captured from Shiloh, Bamas Yachid was
permitted. Rashi here writes that it was only permitted when Shiloh was
destroyed. 2. The Meshech Chochmah writes that even before the Beis
ha'Mikdash was actually built, while Giv'on was standing, Bamas Yachid was
prohibited. Rashi writes that there was not period when a Bamas Tzibur
existed but Bamas Yachid was permitted.)