Women Plowing during Shemitah

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The Gemora in Moed Katan presents a dispute between Rabbi Yochanan and Rabbi Elozar whether one would incur the thirty-nine lashes if he would plow during Shemitah.

Rashi (2b) states that there is a positive commandment which forbids plowing on Shemitah. It is written [Shmos 34:21]: From plowing and harvesting you shall desist. The point of contention between the two Amoraim is if there is a negative commandment as well.

The Rambam in Hilchos Shemitah rules that one who plows during Shemitah does not incur the thirty-nine lashes. Kesef Mishna explains: Since in our Gemora, it was left ambiguously regarding which Amora held what, we cannot administer the lashes when there is uncertainty.

Sha’ar Hamelech in the beginning of Hilchos Shemitah writes that the Yerushalmi in Shabbos (7:2) states that Rabbi Yochanan is the one who maintains that he does not receive the lashes and the rule is that when Rabbi Yochanan and Rabbi Elozar argue, the halacha is in accordance with Rabbi Yochanan.

Minchas Chinuch (112) comments that women are obligated in this mitzvah even though it is a positive commandment that has a time element to it and the principle is that women are exempt from any positive mitzvah which is governed by time. He explains that this is applicable only regarding a positive mitzvah that is incumbent on the body of the person and not a mitzvah like Shemitah, which is a mitzvah that is dependent on the land (mitzvos hateluyos ba’aretz).

Proof to this is cited from the Ritva in Kiddushin (29a). The Gemora rules based on a Scriptural verse that women are not obligated to perform a circumcision on their sons. Tosfos asks: Why is a verse necessary; circumcision is a positive mitzvah which is governed by time since the mitzvah can only be performed by day, and women are exempt? The Ritva answers: Any mitzvah which is not related to the person themselves; this principle does not apply. The mitzvah of milah is to perform the circumcision on the son and therefore women would be obligated if not for the special verse teaching us otherwise.

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Esav the Apostate

Rabbi Chiya bar Avin said in the name of Rabbi Yochanan that an idolater inherits his father according to Torah law! This is apparent from the verse, “For an inheritance to Esav I gave Mount Seir.”

The Gemora asks: Perhaps an apostate Jew, suchas Esav, is different (and this law does not apply to a genuine gentile)?

The Gemora answers: Rather, the proof is from the verse, “For to the children of Lot I gave Ar as an inheritance.”

Rabbeinu Bachye writes that Esav was considered an apostate because he was the child of the Forefathers, but yet, he did not follow in their path.

Reb Tzadok HaKohen writes that he was regarded as an apostate because he was not circumcised. Although the Chasam Sofer (responsa Y”D 245) writes that this was because he was red (Admoni) and that exempted him from performing this mitzvah (on account of the danger), this argument can be rejected because before the Giving of the torah, there was no commandment of “You shall live by the mitzvos,” and therefore, even though there was a health concern, he still would have been obligated to be circumcised.

In the sefer Torascha Shashuay, he explains why Yaakov was allowed to say, “I am Esav, your first-born” based upon the fact that Esav was an apostate. Accordingly, it would have been forbidden for Yitzchak to eat from Esav’s shechitah. The halachah is that one is permitted to lie in order to prevent someone else from transgressing a prohibition. If one is allowed to lie for the sake of peace, he certainly can lie to protect someone from sinning!

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Meat and Fowl

Rabban Shimon ben Gamliel said (Nedarim 54b): If one makes a neder prohibiting himself from meat, he is permitted in fowl. It is evident that he maintains that fowl is not included in meat.

The Chasam Sofer asks: How can he hold that fowl is not included in “meat,” when it is seemingly clear from the Torah that it is? The Jews in the Desert complained that they desired meat and the Ribbono shel Olom sent fowl to them. Evidently, fowl is a type of meat!

He answers that the Gemora explains that fowl is not included in “meat” because it is not healthy to eat fowl on a day of blood letting. Since in the Desert, the northern wind did not blow, and that is the reason why there was no circumcision then (the wind is needed to heal the child). Accordingly, there was no blood letting in the desert, as well. It emerges that there would be no distinction between fowl and meat in the Desert and fowl would be included in “meat.”

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Positive Commandment Overriding a Negative One

The Gemora (Kesuvos 40a, Shabbos 132a) states that a positive commandment can override a prohibition that carries with it a standard punishment.

The Gemora provides an example for this: The positive commandment of performing circumcision overrides the negative commandment of cutting off tzaraas.

My brother, Reb Ben cites the opinion of Rabbeinu Nisim Gaon, who writes the following: Many people cast doubt on this precept, as we know that a negative commandment is more stringent than a positive commandment, so why should a positive commandment supersede a negative commandment? Rabbeinu Nisim answers that a positive commandment is set, and if there is a negative commandment, the negative commandment only functions if there is no contradiction to the positive commandment. This is what Hashem decreed, that the positive commandments remain in place, and the negative commandment only functions if there is no contradiction to the positive commandment. The Ramban , however, writes that the reason a positive commandment supersedes a negative commandment is because in reality, a positive commandment is greater than a negative commandment. A positive commandment is a reflection of the love Hashem has for us, because one who fulfills the instructions of his master is beloved by his master and the master will have compassion on him. A negative commandment, however, is a reflection of Hashem’s Attribute of Judgment, and stems from fear. Since love is greater than fear, the Torah states that a positive commandment supersedes a negative commandment.

Based on this premise, the Meshech Chochmah explains that one who violates a negative commandment deserves a greater punishment than one who does not fulfill the will of Hashem. Nonetheless, since it is the will of Hashem that one observes both positive and negative commandments, one who fulfils a positive commandment demonstrates his love for Hashem. One who does not violate a negative commandment, however, merely demonstrates that he is afraid and nothing more. For this reason, the torah states that a positive commandment supersedes a negative commandment. An example of this is one can wear Tzitzis with Techeiles on a garment of linen, as the positive commandment of wearing Tzitzis supersedes the negative commandment of shaatnez. The reason for this is that one who wears shaatnez does not transgress the will of Hashem. In fact, the opposite is true, as by donning Tzitzis, he is fulfilling the will of Hashem.

In regards to the question: Why is it that a positive commandment overrides a prohibition and yet the punishment for transgressing a prohibition is much more severe than the punishment for not fulfilling a positive commandment?, Reb Yossie Schonkopf said over a parable from his Rebbe: A trucker is hired to transport a load across the country and the owner warns him not to go beyond the speed limit, not to crash the vehicle and to follow all the road instructions. If the trucker does everything perfectly but doesn't unload the goods at his destination; rather, he arrives at the destined location and immediately turns around carrying the same load, what is accomplished by the fact that the trucker obeyed the speed limit and followed all the rules?

The meaning is as follows: Our mission in life is to accomplish in this world and 'build the love towards HaShem,’ therefore, this building overrides the transgressions. The prohibitions are only there to protect what has been built and not to suffocate the building.

This concept is elucidated by the Ramban in Parshas Yisro. He states that the fulfillment of a positive commandment is based on ahavas HaShem, loving HaShem and refraining from committing a transgression is based on yiras HaShem fearing HaShem. It is a higher level to serve HaShem through love, but it is worse to violate a prohibition, which is based upon fearing HaShem.

My brother, Reb Ben asked a similar question: The Gemora states that a positive commandment will override a negative commandment when both commandments are performed simultaneously. It is noteworthy that the Gemora in Sota states that a mitzvah cannot extinguish an aveira, a sin, yet an aveira can extinguish a mitzvah. Apparently, the principle that a positive commandment can override a negative commandment is not a contradiction to this Gemora. Perhaps the idea is that when one performs an aveira intentionally, he has rebelled against HaShem, and it is not possible for one to appease HaShem with a mitzvah when he has just committed an act of rebellion. When one is simultaneously overriding the negative commandment by performing a positive commandment, however, he is demonstrating that he is fully aware that he is performing a negative commandment, yet he is permitted by the Torah to override the negative commandment. This principle allows him to perform the positive commandment and be rewarded for its performance.

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CIRCUMCISION BEFORE EXECUTION

Tosfos states that if a person would destroy his fellow’s eye while he was killing him, it would not be regarded as if he blinded him and murdered him (in which case, you might think that we should punish him for both actions, by executing him and exacting payment for the eye); but rather, it is considered as if he killed him in a more painful manner. Chashukei Chemed derives from this Tosfos that there is no prohibition to wound a fellow at a time that he is being executed anyway.

Using this principle, it is possible to answer the following question posed by Reb Yosef Engel in Gilyonei HaShas to Avoda Zara (10b). The Gemora states: The Caesar decreed that Ketiah (a gentile) should be put to death. As they were escorting him to the death chamber, a certain matron called out and said, “Woe is to the ship that leaves without paying its taxes first.” Rashi explains: Ketiah was being executed for supporting the Jews; if he would not circumcise himself before his death, he will not merit a portion in the World to Come together with them. Ketiah thereby, fell on top of his foreskin and cut it off. He said, “I now have paid my tax. I will leave this world and enter into the World to Come.”

Reb Yosef Engel asks: It appears that Ketiah did not satisfy all the requirements of conversion, for he didn’t immerse in a mikvah and he didn’t accept the yoke of fulfilling all the mitzvos; if so, shouldn’t there have been a prohibition to cut his foreskin? Isn’t he violating the prohibition of wounding oneself?

In the sefer Shabbos Shaboson, the following novel ruling is brought in the name of Rav Yosef Tzikonovsky: If one is being brought to be executed, he is allowed to circumcise himself even though his brothers had died on account of circumcision (normally, that would preclude a third brother from circumcision). Since he is going to die anyway, he would be permitted to circumcise himself, although the procedure itself can lead to his death. He provides a fascinating source from the Abudraham: It is our custom, when saying the words: “V’omer lach b’damayich chayi,” that we place some of the wine on the lips of the child. This is based upon the Medrash which states that after the sin of the Golden Calf, as some of the Jewish people were being killed, Moshe would circumcise them, Aharon would uncover the foreskin and Yehoshua would give them to drink (from the ashes of the Golden Calf causing them to die). All forty years in the Desert, there was no circumcision because of the burdens of traveling and because the Northern Wind did not blow (which was necessary to heal them). Moshe and Aharon did not want them to die without a circumcision and without accepting the yoke of mitzvos. Yehoshua gave them to drink, leading to their death. We give the circumcised child to drink and say: This circumcision and drinking should lead to life, not death.

Accordingly, Ketiah, could circumcise himself prior to his death, and he needn’t be concerned with the prohibition of wounding himself unnecessarily.

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PROTECTING THE FOOLS (who smoke) - Yevamos 72 - Daf Yomi

The Gemora asks: Why weren’t they circumcised in the Wilderness?

You can answer that it was due to the fatigue of the journey (this would have threatened their lives).

Alternatively, you can answer that it was because the north wind did not blow for them (the north wind is neither hot nor cold, and it usually scatters the clouds which enable the sun to shine through and heal the circumcision wound.)

The Gemora asks: Why didn’t the north wind blow?

The Gemora answers: They were being rebuked by Hashem (on account of the sin of the golden calf or because of the spies).

Alternatively, you can say that the northern wind didn’t blow in order that the Clouds of Glory should not scatter.

Rav Pappa said: Therefore, circumcision should not be performed on a cloudy day or on a day when the south wind blows; nor should one let blood on such a day. At the present time, however, since many people are in the habit of disregarding these precautions, we apply the verse [Tehillim 116:6]: Hashem protects the fools.

Rabbi Winston discusses the statement of "Hashem protects the fools." It is often used in situations of halachically- reasonable risk (Shabbos 129b; Yevamos 12b). For example, when many people do something that may be somewhat risky for one's health, but statistically, nothing has become conclusive, then halachically, one can continue to perform the act and not worry about the consequences. Even should there be some latent danger in the act, G-d will intercede on the person's behalf and protect the "fool."

For a long time, cigarette smoking fell into this category. Though the Torah is against all kinds of physical addiction for obvious reasons, as long as there wasn't conclusive proof that the risk factor wasn't as great as we now know it to be, and many people smoked without negative results, it remained halachically permissible to do so; G-d protects the fools.

However, cigarette smoking is now known to be the number one man-made killer of human beings, and this consciousness has made its way into the Torah world, albeit somewhat late. We are no longer "fools" with respect to the effects of cigarette smoking, and, the Poskim (those who decide Torah-law) have now posted signs asking those who still smoke to begin weaning themselves from doing so. For years already, however, they have forbid anyone to start smoking.

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CIRCUMCISION QUESTIONS - Yevamos 71 - Daf Yomi

*** The Gemora states: The words in the verse teach us that a circumcised Arab and a circumcised Gibeonite are included in the prohibition against eating from the Pesach offering.

The Gemora asks: But aren’t these people considered circumcised? We learned in a Mishna: If one takes a vow that he will not derive any pleasure from areilim (uncircumcised people), he is permitted to derive pleasure from uncircumcised Jews, but he is prohibited from deriving pleasure from a circumcised idolater. If one takes a vow that he will not derive any pleasure from mulim (circumcised people), he is permitted to derive pleasure from circumcised idolaters, but he is prohibited from deriving pleasure from an uncircumcised Jew. (It is evident that a circumcised idolater is regarded as uncircumcised.)

What is the comparison between the two cases? Perhaps it can be said that regarding vows, the halacha is that we interpret his words based on the vernacular, and an idolater is described as being uncircumcised even though they in fact are circumcised.

*** Rabbi Eliezer maintains that a convert who circumcised, but did not immerse himself yet in a mikvah is considered a full-fledged Jew; and he maintains that a child who born circumcised does not need covenantal blood to flow from him.

The Rama rules that if one circumcises a child at night, he is required to cause covenantal blood to flow from him. He also rules that if one circumcises a child before he is eight days old, he is not required to cause covenantal blood to flow from him.

What is the difference between the two cases?

*** Rava explained the braisa (the father was not considered negligent for not circumcising his son at the time of the slaughtering of the korban Pesach, but he is negligent for not circumcising him at the time of the eating) to be referring to a case where the father and mother of the child were released from prison after their korban was slaughtered. (An agent slaughtered the korban for them, but the circumcision of their child is incumbent on them to perform.)

Rashi explains that the mitzvah of circumcision rests on the father and the mother.

Doesn’t the Gemora in Kiddushin state that a woman is exempt from circumcising her son based on a verse in the Torah?

Why can’t the father appoint an agent to circumcise his son for him?

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