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Menachot 64 – Questions from the Field

I recently received an email asking two excellent questions on yesterday’s daf, Menachot 64. I post the questions here, with my answers below.

QuestionWhy would you be permitted to be mechalel Shabbat on erev Pesach in order to flay the animal to get at its innards if the innards could instead be offered up later that night (i.e., after Shabbat is over)? Convenience alone shouldn’t be enough to be docheh the prohibition.

Answer: You are right, this is far from obvious. Even R. Yishmael’s position – which limits the flaying until the chest – needs justifying. What is the need to do this on Shabbat? The Keren Orah underscores this, pointing out that we are specifically talking about the Pesach, and not other korbanot which are brought on Shabbat and eaten (e.g., chatat of a musaf of Yom Tov), because here there is no need to do it today. In the case of a chatat, by contrast, since the eating of the meat on that day is part of the mitzvah, and since that can only be done after the innards are offered up, there is clear justification to offer the innards today. But for a Pesach,, even the meat can’t be eaten until tonight! Therefore, it is a chiddush to say that this can be done on Shabbat. Here is what he says:

ולאו דוקא נקט פסח, דבכל קרבנות ציבור הוי מצי לאשמעינן כו’. אין דבריהם ז”ל מובנים, דבכל קרבנות ציבור לא שייכא פלוגתא זו, לא בעולת ציבור ולא בחטאת, דעולה ודאי מפשיט את כולה ומעליהו מיד, ובחטאת נמי דצריך לאכול מיד וודאי מפשיט את כולו אפילו בשבת, וכי פליגי בפסח, דלא חזי לאכילה עד הערב, א”כ הוי טירחא שלא לצורך שבת, ואפילו בישול חטאת ציבור נראה דהותר בשבת, כמו הקטר חלבים, דהוי מצוה בשעתה, ה”נ אכילת חטאת, ודווקא בפסח הוא דאין צלייתו דוחה שבת, דלא חזי היום…

Tosafot says that the debate is not specifically about Pesach, because this issue could have been raised by any of the communal sacrifices (when it is brought on Shabbat).  But their words do not make sense, because this debate would not have been relevant neither in regards to a communalolah or a communal chatat. In the case of the olah, it would obviously be required to flay the entire animal so that it can all be put on the altar immediately.  Similarly, regarding a chatat which must be eaten immediately, one would certainly flay it even on Shabbat [since it cannot be eaten as long as the innards have not been offered on the altar].  Rather, the debate is specifically in regards to the Pesach, which cannot be eaten until nightfall, and thus effort regarding it are not being done for the sake of Shabbat [but rather for the eating after Shabbat].  In contrast, it appears that cooking of a communal chatat would be allowed on Shabbat, just like the burning of its innards which is the doing of a mitzvah in its proper time, and this is also true in regards to eating a chatat. It is specifically the Pesach whose roasting does not override Shabbat and that is not fit for eating today, that this debate [regarding how much can be flayed] exists.

So what is the answer? It seems that there is an implicit understanding that anything that is part of the avodah today, even if it can be postponed until tonight, can be done today – that all of this is included in the principle that Pesach overrides Shabbat. Interestingly, in the Tosefta where this appears (Pesachim 4:10, Lieberman), R. Yishmael’s statement appears alone, without the opinion of the Sages. This leaves open the possibility that he is being lenient, allowing the flaying, and not strict, in limiting it to the chest. And, indeed, the Yerushalmi, when it quotes the Tosefta, states:

תני רבי ישמעאל הפשיטו דוחה את השבת תני רבי ישמעאל בנו של יוחנן בן ברוקה או’ בשבת היה מפשיט את החזה

We taught in a braitta, ‘R. Yishmael says that flaying of Pesach overrides Shabbat.’  We taught in a braitta, “R. Yishmael the son of R. Yochanan ben Broka says, ‘On Shabbat they would flay it until the chest.”

Yerushalmi Pesachim 6:1

That is, according to the Yerushalmi, R. Yishmael is being lenient and introducing the idea that they flaying can override.  The Yerushalmi does go on to say, like our Gemara, that R. Yishmael is also being restrictive, and not allowing more to be done, although it would make the mitzvah nicer.  Nevertheless, the first point that R. Yishmael is introducing is that there is an allowance to do the flaying of the Pesach altogether on Shabbat.

Ritva in Shabbat (116b, s.v. Tanu Rabbanan) implicitly makes this point as well, except following the Bavli assumes that it is not the innovation of R. Yishmael but an assumption shared between him and the Sages. Here is what he says: דשחיטת הפסח והקטרת אימורין וכל צורכיהן דוחה שבת לדברי הכל, דאמר קרא במועדו אפילו בשבת. “Because the slaughtering of the Pesach and the offering up of its innards and everything that is needed (for the korban) override Shabbat according to all opinions (R. Yishmael and the Sages), for the verse states: “In its season,” [which means] even on Shabbat.

QuestionWhy do we compare our situations of melacha d’oraita to techum Shabbat, which is d’rabbanan?

Answer: If by techum shabbat you mean the case of testifying for the new moon – that is not limited to a techum problem. It includes carrying provisions for the journey, which would be a biblical prohibition of carrying. See mishna Rosh Hashana 1:9:

מי שראה את החדש ואינו יכול להלך מוליכין אותו על החמור אפילו במטה ואם צודה להם לוקחין בידם מקלות ואם היתה דרך רחוקה לוקחין בידם מזונות שעל מהלך לילה ויום מחללין את השבת ויוצאין לעדות החדש שנאמר (ויקרא כ”ג) אלה מועדי ה’ אשר תקראו אותם במועדם

If one who has seen the moon is not able to go on foot, he may be brought on an donkey or even in a bed [on Sabbath].  If they [the witnesses] are likely to be waylaid, they may take cudgels [to defend themselves].  If the distance is great [to Jerusalem], they may take provisions with them, since for as much as a night and a day’s journey they were allowed to profane Sabbath and go forth to testify to the appearance of the new moon, as it says: “These are the appointed seasons of the Lord . . . which ye shall proclaim in their appointed season.”

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Kupach, Kira, and Tanur – What Did all these Ovens Look Like?

The mishna in today’s daf (Menachot 63a) stated that a mincha that is ma’feh tanur, an oven-baked mincha cannot be made in a kupach. R. Yehudah disagreed and said that a kupach could be used for such a mincha.  What, exactly, is a kupach, and how did it differ from a tanur?

Rashi, here, states that a kupat is a small oven and can only fit one pot (s.v. kupat).  Rashi’s comments are more spelled out in the third chapter of Shabbat, where the mishnayot distinguish between three instruments for cooking: the kirah, the kupach, and the tanur. Here is what Rashi says about these three items (I have reordered the statements to appear in ascending order of the size of the items):

כופח – בגמרא מפרש לה: עשוי חלל ככירה, אבל ארכו כרחבו, ואין בו אלא שיעור שפיתת קדירה אחת, וכירה יש בה שפיתת שתי קדירות. (לח:)

כירה – עשויה כעין קדירה, ונותנין קדירה לתוכה. (לו:)

תנור – מתוך שקצר למעלה ורחב למטה, נקלט חומו לתוכו טפי מכירה (לח:)

Kupach is explained in the Gemara: it is made with a hollow, like the Kirah, but its length is equal to its width, and it only has the size to hold one pot.  The kirah has the size to hold two pots. (Shabbat 38b)

Kirah is shaped like a pot, and one puts a pot inside it. (Shabbat 36b)

Tanur – an oven, because it is narrow above and wide at the bottom, its heat is concentrated inside it more than is the case with a  kirah (Shabbat 38b)

The differences between these three items can be seen visually in the pictures below.  These are all taken from the book כלי חרס בתקופת התלמוד, “Earthenware Vessels from the Talmudic Period,” by Dr. Yehoshua Brand, and a pdf of the sections on these ovens can be downloaded on our Resources page under Diagrams and Maps.

The first picture is that of a kupach, the next of an earthenware kirah.   The kupach’s hollow would be filled with wood and fuel and the pot would be put on its top (not inside it).  The holes on the floor of the kupach which would allow the ashes to fall away into the bottom chamber.  In contrast, the earthenware kirah looked like a pot-holder with walls.  It could have four walls or, as the picture below shows,  three walls.  The woods and fire was put in between the walls, and the pot supported above.  It could be wider than the picture shown and support two pots.

The last picture is that of a tanur, and – like Rashi described – it is pyramidal in shape, and as can be seen was used for baking bread by sticking the bread on its walls.

It is not clear why our mishna did not consider the question of using a kirah for baking bread.  The Gemara in Shabbat states, in its explanation of the greater serverity afforded to a kupach over a kirah, that the heat of a kupach was greater than a kirah (Shabbat 35b).  Brand assumes that this means that the kupach was taller (it is assumed that the kira was wider, since it could hold two pots).   It is also possible that its heat was greater because the kupach was not as wide, and because it had walls all around without ventilation.  This could explain why R. Yehuda only mentions a kupach for baking.   Its greater heat would allow for more effective baking than the kirah.

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Touching the Mincha to the Altar – Why?

The Mishna (Menachot 60a) lists all the minchas which require hagasha, touching to the corner of the altar, but does not discuss what function this serves.   It also records a debate between R. Shimon and the Tana Kama whether the mincha of a Kohen, which is fully burnt, also requires the ritual of hagasha.  Again, neither the Mishna nor the Gemara indicate why the act of hagasha would or would not be as meaningful in regards to this mincha as to the other menachot.

What is agreed is that any mincha which comes as its own sacrifice, and not as an adjunct to an animal sacrifice, and whose handbreadth is offered on the altar requires hagasha.  This excludes the minchat nisakhim which come as an adjunct to animal sacrifices, and excludes the shew-bread of the shulkhan of which only the frankincense, but no part of the mincha itself, is offered on the altar.   While it is understandable that this rite is limited to a mincha that is brought on its own accord, it is not clear why it would not apply to the shew-bread, just because no part of it goes directly on the altar.

How can we understand the function of hagasha in a way that makes sense and that also explains some of the limits delineated above?

Two possible explanations for hagasha suggest themselves:

  1. Hagasha on the corner of the altar is the counterpart of the throwing of the blood on the altar.   Consider:
    • The mincha is touched to the corner of the altar. and The blood is thrown on the corners of the altar.
    • The mincha must be touched to a corner that has a yesod, a base, underneath (Menachot 61), and the blood of animal sacrifices must be thrown on a wall or corner which has a yesod (Zevachim 56b).
    • The mincha is touched to the altar, and a part of it – the kometz – is burned.  The blood of an animal sacrifice is thrown on the altar and a part, the fat, is burned.
    • The primary difference is that it is the blood on the altar which is the atoning act for the animal sacrifice, whereas the hagasha does not play this role by the mincha – the burning of the kometz does.
  2. Hagasha is needed to further sanctify the mincha and make it – or, rather, its kometz fit – to be burned on the altar.
    • This parallels the greater need for kedushat keli that why find regarding a mincha over and above such a need by an animal sacrifice
    • It is unclear, however, why this would be done to the whole mincha and not just the kometz

I am clearly inclined to the first approach, because the parallels to the throwing of the blood are very suggestive.  However, this approach does not explain R. Shimon’s position that hagasha is not required for the minchat Kohanim, since even such a mincha should require touching to the walls of the altar, just as an olah which is fully burned, still has its blood thrown on the altar.  Also, it is not clear why the lechem ha’panim would not require hagasha.  Although none of the mincha proper is burned, why not keep the hagasha ritual?  Why should this be different from an animal sacrifice where the part burned (the fat) is never the same as the part put on the walls of the altar (the blood)?

The best explanation that I have found for hagasha that addresses the specifics detailed above, is that of Jacob Milgrom in his commentary on Vayikra 2:9.  Here is what he says:

The presentation by the priest to the altar is an indispensable rite in the sacrificial procedure (see at I:5); but whereas only the burnt parts of the other offerings are presented to the altar, the entire cereal offering undergoes presentation to the altar even though only its “token” is burned. This is done to indicate
that the entire offering in reality belongs to God that he, by his (sic!) grace, has bestowed most of it as a perquisite on the priesthood. This point is stated explicitly in the priestly instructions: “I have assigned it (the cereal offering) as
their portion from my food gifts” (6:10; see 10:12-13; 24:9). Perhaps for this reason, as suggested by Abravanel, the priestly portion may not be eaten leavened (6:9-10) because, theoretically, all of it should he consumed on the altar on
which leaven is prohibited (v 11). In rabbinic terminology, haggasha is the technical term for the priestly presentation to the altar (m Menah. 5:5, 6).

That is, the mincha in general functions as a type of an olah.  It appears in Vayikra after the Torah lists the various olot in descending order of value: cows, sheep, and birds.  The Torah then states the laws of the free-will olah.  The implication is clear: this is a type of poor-person’s olah.  It is given of one’s total free will as a gift to God.  There is only one hitch.  The mincha is not totally given to God.  Its kometz is given to God, but the remainder is eaten by the Kohanim.

The solution to this is the hagasha.  By touching the mincha to the altar the Kohen indicates that it – like an olah – belongs fully on the altar.  It is as if it has been, in a virtual sense, offered on the altar.   When the Kohanim now eat the remnant of the mincha, this is to be seen as a form of the consumption of the altar, and not as merely food for the Kohanim.  Thus, says Abarbenel, the Kohanim cannot bake even the remnant into chametz, and then eat it, because this would be like offering chametz on the altar.

According to this, it is obvious why R. Shimon does not require hagasha for the mincha of Kohanim.  That mincha is fully burnt in actual fact.  Thus, it does not require the rite of hagasha to make it “viritually” offered on the altar.  Who needs virtual reality when you have the real thing?

The exclusion of the minchat nisakhim and the  lechem ha’panim is also understandable according to this.  The minchat nisakhim was never meant to be put on the altar, just to accompany the animal sacrifice.  Thus, no hagasha is necessary.  Similarly, the lechem ha’panim was never meant to function as a type of an olah, was never meant to be placed fully or even partially on the altar.  From the outset they were to be set before God and then eaten by the Kohanim, eaten as bread off of God’s table.  The משלחן גבוה קא זכו, the eating off of “God’s table” (Baba Kama 12b, Beitza 21a) that Kohanim normally do after a part of the sacrifice is offered on the altar, is here achieved by taking the bread literally off of God’s table, the shulkhan.  The frankincense that is offered is the only part that was ever intended to be offered.  No hagasha is needed, since this bread does not need to be treated as an olah, does not need to be placed literally or virtually on the altar.

The only mincha that does not work according to this model is the minchat chotei and, similarly, the minchat ke’na’ot.  These are not functioning as a type of an olah, and in the case of the former, and probably the latter as well, are functioning as a type of a chatat.  The purpose of hagasha here remains unclear.   Perhaps the nature of a mincha is such that even when serving as a chatat it should, in theory, be fully offered up.  When one brings an animal sacrifice, there is blood – the symbolic life-force – which is put on the altar.  This suffices in itself.  However, in the case of a mincha, all one is putting on the altar is flour.  Basic sustenance? Yes.  But life-force? No.  Thus, a mincha – even one serving as a chatat – can only be significant when offered fully on the altar.  And if it is not to be offered fully in actuality, then at least it needs to be so in a virtual sense- it requires the rite of hagasha.

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Kohanim becoming Tamei Nowadays – What’s the Story?

Chag Samayach to all on Israel’s 63rd Birthday!

In Sunday’s post, we looked at the topic of מחמיץ אחר מחמיץ, and the general question of when the Torah is prohibiting certain actions regardless of their outcome, and when, in contrast, it is only prohibiting actions that produce certain outcomes.  In other words, is the focus on the action or on the outcome?

This question is particularly relevant when it comes to the issue of Kohanim becoming tamei.  We assume nowadays that everyone is tamei met, impure due to a dead body, because we have been at cemeteries or flown over them and have been at hospitals where there is a morgue under the same roof.   The question then arises whether a male Kohen would be prohibited to come in contact with a dead body nowadays, given that he is already tamei.  Is the prohibition the act or is it the result?  The Torah refers to both.  By a normal Kohen the Torah repeatedly refers to the problem of the result, of becoming tamei: “To any person in his nation he shall not become tamei… A husband shall not make himself tamei to desacralize himself”  (Vayikra 21:1, 4).   By the Kohen Gadol, however, the Torah also emphasizes to the act: “Neither shall he go to any dead body.” (Vayikra 21:11).  Which, then, is it?  Becoming tamei or coming in contact with the dead?

This issue is discussed in the Gemara Nazir (42a-b) and later codifiers.  The upshot is that the Gemara considers the prohibition to be result-related, i.e., to be that of becoming tamei.  However, it goes on to state that even a Kohen who is already tamei with corpse-related tumah may not again come in contact with a corpse, because in this act a new level of tumah is added.  When a Kohen has touched a dead body, he has contacted corpse-related tumah, and he is rendered an av ha’tumah, a primary source of tumah.   If he now touches any object or clothing or the like, they become a rishon li’tumah, a derivative form of impurity.  However, at the moment the Kohen is actually touching or under the roof with a dead body, not only does he become an av ha’tumah, but so does anything he is touching at the time.  This principle is called tumah bi’chiburin, impurity through concatenation.  Thus, although already a tamei met, a Kohen cannot again come in contact with (or under the same roof of) a dead body, because this will add to his degree of impurity – at this moment he will have the ability to render other things as av ha’tumah through concatenation.  If, however, he is already in contact with a dead body, then he does not transgress by touching another dead body since no tumah is added.

There are thus three possibilities of understanding the prohibition for a Kohen to become tamei:

  • (Act)  The act is inherently problematic – prohibited even if already in contact with a dead body
  • (Result 1) The prohibition is the result, i.e., creating tumah  – but it is prohibited to become tamei again if he is not already in contact with a corpse, since the new contact brings a new level of tumah
  • (Result 2) The prohibition is the result, i.e., creating tumah – and it is NOT prohibited to become tamei again, because no significant new tumah is added

Here, then is a summary of how the various sources define this prohibition, keyed to the above list.  The actual sources follow the summary. 

  1. Talmud Bavli, Nazir 42a-b
    • Rabbah – A Nazir is not prohibited to become tamei if he already is in contact with a corpse (Result – either 1 or 2)
    • Rav Huna – A Nazir is prohibited in such a case (Act)
    • Abbaye – A Nazir or Kohen transgress if they are tamei and touch, but do not transgress if they are already touching and touch again.  They only transgress when a new level of tumah is added (Result 1)
  2. Rambam, Laws of Nezirut, 5:15-17
    • A Nazir transgresses even if he is already tamei, but only if he separated from touching and then touched again, adding a level of tumah (Result 1)
  3. Ra’avad, ad. loc.
    • Rabbah is of the opinion that there is no prohibition to become tamei again if one is already tamei, and is unconcerned with the additional concatenation tumah (Result 2).
    • We rule like Rabbah, and since all Kohanim nowadays are assumed to be tamei met, there is no prohibition for them to become tamei..
  4. Dagul MeiRivava, Yoreh Deah, 372:2
  5. . Responsa of Hatam Sofer, Yoreh Deah, 338
    • Ra’avad is only exempting Kohanim nowadays from lashes. Becoming tamei again is still Biblically
  6. Tractate Semachot, 4:10
  7. Rosh, Laws of Impurity, no. 6
    • Becoming tamei again is a problem because it adds a level of tumah (Result 1)
    • The additional level of tumah is not concatenation tumah, but the fact that one can begin the process of purification on day 3 from the day of contact, and a new tumah means that the three-day count must begin again.
    • Therefore, if one already became tamei on that very day, there is no prohibition to become tamei again because no new tumah is added.

Thus, in summary, the standard approach is that the prohibition is because of the result – a new level of tumah is added (Result 1).  If this new level is concatenation tumah, then the only case where the prohibition would not apply is where a Kohen was already in contact with a dead body (Sources 1-2).  If, however, the new level is that the three-day count begins again, then there would be no new prohibition if the Kohen had already become tamei earlier that day (Sources 6-7).  The most interesting position is Ra’avad (Source 3) who states that the prohibition based on the result, and that one does not transgress if he is already tamei, since no significant new tumah is added (Result 2).  Creating the slightly increased tumah may still be prohibited, but without lashes (Sources 4-5).

In closing, it is interesting to compare this Ra’avad, who exonerates Kohanim who become tamei, with the Ra’avad in Hilchot Beit HaBechira 6:14 who states:

ולא עוד אלא שאני אומר שאפילו לרבי יוסי דאמר קדושה שנייה קדשה לעתיד לבא לא אמר אלא לשאר א”י אבל לירושלים ולמקדש לא אמר לפי שהיה יודע עזרא שהמקדש וירושלים עתידים להשתנות ולהתקדש קידוש אחר עולמי בכבוד י”י לעולם כך נגלה לי מסוד ה’ ליראיו לפיכך הנכנס עתה שם אין בו כרת.

And moreover, I say that even according to R. Yossi who states that the second sanctity of Israel [in the time of Ezra] is for all time – this was said only in reference to the Land of Israel in general, but he was not referring to  Jerusalem and the Temple Mount.  For Ezra knew that the Temple and Jerusalem would, in the future, be transformed and resanctified with a different, eternal sanctity, through the Glory of God, forever.  Thus was revealed to me by the secret of God to those who fear God.  Theref0re, a person who today enters there (the Temple grounds) [although tamei] does not incur the penalty of karet, Divine excision.

Here, like the case of a Kohen becoming tamei, Ra’avad is minimizing the consequences of tumah nowadays.  In the case of Kohanim it is not so consequential because they are already tamei.  In the case of the prohibition to enter the Temple grounds when one is tamei is not so consequential because the sanctity there is not present, or not fully present.  Note, also, that in this second case, he arrives at his position not based on any text, but on a divinely-inspired insight.  And, finally, in both cases he leaves it unclear whether he is just reducing the prohibition (no lashes, no karet) or actually eliminating it.


1. Talmud Bavli, Nazir 42a-b

מתני’. נזיר שהיה שותה יין כל היום – אינו חייב אלא אחת, אמרו לו אל תשתה אל תשתה והוא שותה – חייב על כל אחת ואחת. היה מגלח כל היום – אינו חייב אלא אחת, אמרו לו, אל תגלח אל תגלח והוא מגלח – חייב על כל אחת ואחת. היה מטמא למתים כל היום – אינו חייב אלא אחת, אמרו לו אל תטמא אל תטמא והוא מטמא – חייב על כל אחת ואחת.

גמ’. איתמר: אמר רבה אמר רב הונא, מקרא מלא דבר הכתוב: +במדבר ו+ לא יטמא, כשהוא אומר +במדבר ו+ לא יבא – להזהירו על הטומאה להזהירו על הביאה, אבל טומאה וטומאה לא; ורב יוסף אמר: האלהים! אמר רב הונא אפילו טומאה וטומאה, דאמר רב הונא: נזיר שהיה עומד בבית הקברות, והושיטו לו מתו ומת אחר ונגע בו – חייב, אמאי? הא מיטמא וקאים! אלא לאו ש”מ, אמר רב הונא אפילו טומאה וטומאה. איתיביה אביי: כהן שהיה לו מת מונח על כתיפו, והושיטו לו מתו ומת אחר ונגע בו, יכול יהא חייב? ת”ל: ולא יחלל, במי שאינו מחולל, יצא זה שהוא מחולל ועומד! א”ל: ותיקשי לך מתני’, דתנן: היה מיטמא למתים כל היום – אינו חייב אלא אחת, אמרו לו אל תטמא אל תטמא – חייב על כל אחת ואחת; ואמאי? הא מיטמא וקאים! אלא קשיא אהדדי! לא קשיא: כאן בחיבורין, כאן שלא בחיבורין

MISHNA.  If he [the Nazir] was defiling himself [by contact] with the dead all day long he incurs one penalty only. If he was told, ‘Do not defile yourself, do not defile yourself,’ and he did defile himself, he has incurred a penalty for each [warning].

GEMARA. It was stated: Rabbah, citing R. Huna, said: Scripture [speaking of the Nazir] makes the comprehensive statement, “He shall not make himself unclean”; when it adds, “He shall not enter [under a roof with a dead body],” [its intention is] to utter a [separate] warning against defilement [by contact] and a [separate] warning against entering [a tent], but not against defilement [by contact] from two sources [at the same time].

R. Yosef, however, said: By God! R. Huna said that even for defilement [by contact] from two sources [at the same time there are separate penalties]. For R. Huna has said that a Nazir, standing in a cemetery, who was handed the corpse of his own [relative] or some other corpse, and touched it incurs a penalty. Now why should this be so? Is he not actually being defiled all the time? It follows therefore that R. Huna must have said that even for defilement [by contact] from two sources [he is to receive separate penalties].

Abaye raised an objection from the following. [A braitta teaches:] ‘A priest, carrying a corpse on his back, who was handed the corpse of his own [relative] or some other corpse and touched it, might be thought to have incurred a penalty, but the text says, “Nor profane [the sanctuary]” [prescribing a penalty] for one not already profaned [and thus] excluding this man who is already profaned? — [R. Yosef] replied: But our mishnah should cause you the same perplexity, for we learn [there], “For defiling himself [by contact] with the dead all day long he incurs one penalty only. If he was told, ‘do not defile yourself,’ ‘do not defile yourself,’ and he did defile himself, he has incurred a penalty for each [warning].” But why should this be so? Is he not already defiled? We can therefore only conclude that [the mishnah and the braitta] contradict each other.

[Abaye retorted:] There is no difficulty [in reconciling the mishnah and the braitta]. The one [the braiita regarding the Kohen] assumes that there is concatenation [i.e., the Kohen is already touching a dead body, so by touching another one, no additional tumah is incured], and the one [the mishna regarding the Nazir] assumes that there is no concatenation [i.e., that the Nazir separates from the dead body, and then touches it again, thus adding a level of tumah].

2. Rambam, Laws of Nezirut, 5:15-17

נזיר שנטמא למת טומאת שבעה, בין בטומאות שהוא מגלח עליהן כמו שיתבאר בין בטומאות שאינו מגלח עליהן הרי זה לוקה. נטמא למת פעמים הרבה אע”פ שהוא חייב מלקות על כל אחת ואחת לשמים אין בית דין מלקין אותו אלא אחת, ואם התרו בו על כל פעם ופעם והוא מטמא לוקה /על/ כל אחת ואחת. במה דברים אמורים בשנטמא ופירש וחזר ונגע או נשא או האהיל, אבל אם היה נוגע במת ועדיין המת בידו ונגע במת אחר אינו חייב אלא אחת אע”פ שהתרו בו על כל נגיעה ונגיעה שהרי מחולל ועומד.

A Nazir who became impure to a corpse a seven-day impurity, whether it is one of the impurities that he shaves for, as will be explained, or one that he does not shave for, he receives lashes.

If he became impure to a corpse numerous times, even though he is liable to heaven for lashes for each time, the court only administers one set of lashes.  But if they warned him prior to each occurrence and he became impure, he is lashed for each occurrence.

When is this true?  When he became impure and separated and went back and touched or carried or “tented”.  But if he was touching a dead body and the corpse is still in his hand and he touches another corpse, he is only liable one [set of lashes], although they warned him prior to each touching, because he is already desecrated.

3. Ra’avad, ad. loc.

נזיר שנטמא למת טומאת שבעה וכו’ בד”א בשנטמא ופירש. א”א עיינתי בשמועה במס’ נזיר וראיתי דלדעת רב יוסף טומאה וטומאה בחיבורין של אדם במת אפילו התרו בו על כל אחת ואחת אינו חייב אלא אחת כדתניא נזיר שהיה מת על כתפו והושיטו לו מת אחר פטור אבל פירש וחזר ונגע חייב שתים וטומאה וביאה אפילו בחיבורין חייב שתים …

ורבה פליג עליה בכל טומאה וטומאה אפילו שלא בחיבורין אינו חייב אלא אחת הואיל וטמא הוא ומתניתא דקתני אל תטמא והוא מטמא חייב על כל אחת ואחת מוקים לה בטומאה ובביאה והא דאמר רב הונא נזיר שהיה בבית הקברות והושיטו לו מתו ומת אחר ונגע בו חייב ליתא דהא בחיבורין הוא וכיון דקי”ל רבה ורב יוסף הלכתא כרבה מעתה טומאה וטומאה אפילו פירש וחזר ונגע פטור והכהנים בזמן הזה טמאי מת הן ועוד אין עליהן חיוב טומאה והמחייב אותם עליו להביא ראיה

I have looked into the discussion in tractate Nazir and I have seen that the opinion of Rav Yosef is that if one becomes impure while one is touching a corpse, even if they warned him on each event, he is only liable once, as we taught in the braitta, “A Nazir who had a corpse on his shoulder and they handed him another corpse he is exempt”.  But if he detached himself and went back and touched he is liable twice.  But touching and being in the same room is liable twice [even at the same time] because they are two different categories…

And Rabbah disagrees there and says that all cases of becoming impure after one is impure, even not when one is still touching the first corpse, the person is only liable for one transgression since he is already impure.  And the Mishna that says that he can be liable multiple times if warned before each time, would be talking about a case of touching and entering into a house [with a corpse]… And since we rule that in any debate between Rabbah and Rav Yosef the ruling is according to Rabbah, the conclusion is that any case of becoming impure and then becoming impure again, even if he detached himself from the first contact and went back and touched, he is exempt.  And Kohanim today are impure due to corpses and they no longer have a liability for becoming impure, and one who would obligate them has the burden of proof.

4. Dagul MeiRivava (R. Yehezkel Landau), Yoreh Deah, 372:2

מה שכתבתי בגליון בשני הסעיפים הנ”ל נמשכתי אחר דברי המשנה למלך הנ”ל דלדעתו סובר הראב”ד דאין איסור כלל לכהן שכבר נטמא לטמא עצמו אבל עכשיו נתתי אל לבי שאולי לא אמרה הראב”ד אלא לעניין חיוב מלקות אבל לענין איסור אולי אפילו איסור תורה מודה… לכן הדרנא בי…

What I wrote in the margin in the previous two paragraphs, I was following the words of the Mishna LiMelek who is of the opinion that the Ra’avad holds that there is absolutely no prohibition for a Kohen who is already impure to impurify himself.  But now I have reconsidered, that perhaps the Ra’avad only said it regarding the liability for lashes, but regarding a prohibition – perhaps even a Biblical prohibition – he would agree… Thus I have retracted my earlier position…

5. Responsa of Hatam Sofer, Yoreh Deah, 338

מ”ש רמכ”ת בסוף דבריו דלהראב”ד כהנים בזה”ז אינם מוזהרים על הטומאה כיון שכולנו טמאי מתים יעיין בדגול מרבבה בי”ד סי’ שע”א ד”ה אמר יחזקאל וכו’ …ואני בעניי אח”ז כמו שלשים שנים מצאתי שכ”כ הראב”ד בתמים דעים סס”י רל”ו דאסורי’ מן התורה ודברי סמ”ק סי’ מ”ח אין לו מובן וצ”ע על כל פנים אין לו למכ”ת משען בזה.

What you wrote at the end of your letter, that according to the Ra’avad Kohanim nowadays are not prohibited from impurity since we are all impure, see the Dagul MeiRivava, YD, 372 … [Here he recounts how his rebbe, R. Nathan Adler debated this with R. Yehezkel Landau until R. Landau reversed himself].  And I discovered after 30 years that the Ra’avad himself wrote in Temim Deim, end of section 236, that they are prohibited Biblically… and your suggestion thus has not support.

6. Tractate Semachot, 4:10

היה עומד וקובר את מתו, עד שהוא עומד בתוך הקבר מקבל מאחרים וקובר, פירש הרי זה לא יטמא. נטמא בו ביום, רבי טרפון אומר חייב ורבי עקיבא אומר פטור. נטמא לאחר אותו יום, הכל מודים שהוא חייב, מפני שהוא סותר יום אחד.

If a Kohen was standing and burying his relative, while he is still standing in the grave, he can receive bodies from others and bury them.  Once he has separated from the grave, he can no longer become impure.  If he became impure again on that day, R. Tarfon says, he is liable.  R. Akiva says he is exempt.  If he became impure after that day, they all admit that he is liable, since he destroyed one day.

7. Rosh, Laws of Impurity (back of Tractate Menahot), no. 6

אבל ר”ת כתב שהלכה כר”ע כההיא דאבל רבתי דנטמא בו ביום פטור ומותר לכהן להכניס מתו לבית הקברות ולקברו.  ואפילו היה ר”ע אוסר טומאה בו ביום מדבריהם גדול כבוד מתו שדוחה ל”ת דדבריהם

It is forbidden to become impure to another dead body, even when he is becoming impure to his relative’s dead body.  Therefore, a Kohen who had a relative die, must be careful to bury him at the edge of the cemetery, so that he does not enter into the cemetery and become impure through the other dead bodies when he is burying his relative’s body.

Rema: And this is a problem only after he detached himself from his relative’s body, but while he is still involved with his relative’s body, it is permissible for him to become impure even to other dead bodies.

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Menachot 61 is up

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Chametz after Chametz – Is it the Journey or the Destination?

Recent sugyot have been exploring the question of what happens when an prohibited act is done to a person, animal, or object that is already, in some way, damaged or unfit.  In today’s daf (Menachot 60a), the Gemara addressed the prohibition of placing oil or frankincense on a minchat chotei, a mincha functioning as a sin-offering.   The mishna (59b) had taught that one transgresses for placing oil alone and for placing frankincense alone.   The Gemara now asks, is this only when there are two kohanim involved, or even if it is only one kohen.   It is hard to understand why it should matter if one or two kohanim are doing this transgression, and therefore Tosafot (s.v. Yachol) explains that the question is not really about two kohanim as much as it is about 2 minachot.

The question, according to Tosafot, is whether one will transgress by placing frankincense on a minchat chotei, which already has oiled placed on it.  Since the mincha is already invalid, is this act of placing the frankincense prohibited or not? Tosafot has two different ways of understanding the Gemara’s conclusion: one, that there is a transgression in this case, and the other that there is not.  Tosfaot points out that this question is similar to the question the Gemara raised earleir (57a) regarding kneading, shaping, and making a mincha that is chametz after it had already become chametz.  There, the conclusion had been that one transgresses even after the mincha is already chametz, but the issue is less clear here.

What is at stake with these questions?   To one degree, it is a question whether one looks at certain acts independently, or as part of a process.   It is taken for granted that I would not transgress if I made a normal mincha that was otherwise invalid (say, it was tamei) into chametz, or if I added frankincense to an otherwise invalid sin-offering mincha.   However, when I allowed it to become chametz at the beginning of the kneading, and then continued to knead, shape, and bake it, then I am not doing a new act, but continuing in the process that I began before, and it is reasonable to say that I continue to transgress the more I deepen and perpetuate the original transgression.  Similarly, since oil and frankincense are equally excluded from the minchat chotei, it is reasonable to see the addition of one and then the other as a continuation of a process, and not a new act.  Thus, although the mincha is already invalid because of the oil when I place the frankincense, I have really just continued in the process I began, but because I took it to the next step, I have transgressed again.

Understood this way, to transgress these prohibitions does require invalidating the mincha from a prior state of validity.  However, when something is part of an ongoing process, we look at the mincha in terms of its state prior to, or independent of, that process.  [In this way, this can be compared to the principal that one can only make a korban pigul if it was fit to be accepted regardless.  However, in evaluating this, we bracket any invalidity that results from the fact that it is pigul, because this is all part of the same process that we are evaluating.]

The question of Tosafot regarding placing the frankincense after the oil would, according to this, be understood as whether the placing of these two different substances should be understood as one process or as two.  On the one hand, they are different objects (and even the minimum amount to transgress is different, as we saw today).  On the other hand, both are “beautifying” the minchat chotei, and should thus maybe be seen as variations of a theme.

There is, however, a very different way of looking at this.  What is at stake might be the very question of whether the act needs to invalidate in order for it to be the prohibited act.  Perhaps the very placing of frankincense, even if it does not add an invalidity, would be prohibited.   Now, we actually know the answer to this, because we had just learned in the Gemara yesterday (59b), that the frankincense does not invalidate the mincha, since if one removes it, the mincha can then be used.   [It is possible to frame this otherwise, that the frankincense temporarily invalidates the mincha, but that its validity can then be restored.  This relates to the question of dichuy, and the answers given to it, as discussed on 59b, and in Tosafot, s.v. Vi’teyhavei.]    Thus, the prohibition to put on it frankincense is regardless of whether this invalidates, and thus one would transgress even if the mincha was already invalid.    Of course, this would mean that one transgresses even if she places frankincense on an invalid mincha, and Tosafot does suggest as much.  [It is also possible that an invalidity due to tumah – which is a violation of the very kedusha – would be treated differently than one due to the addition of a wrong ingredient.]

This question – what is the nature of the prohibited act, is it the act itself, or the problem that it causes – is a key one to ask in general.  In contemporary Brisker/conceptual terminology, the question is: Is it the ma’aseh, the act, or the tozta’ah, the result of the act?

Now, this question seemed to be at the heart of the sugya earlier (56b) which looked at a number of prohibited acts which were not actually effecting a new result.  The Gemara considered:

  1. Continuing to make a mincha that was chametz after it had already become chametz
  2. Further castrating an animal that had already been castrated
  3. Inflicting a blemish onto a korban that already had a blemish

[Interestingly, the last two appeared in this week’s parsha, Emor, which we read yesterday.]

The Gemara stated that there was a consensus that in the first two cases one would transgress.  The Gemara proves this based on verses, but does not explain it.  Regarding the mincha the explanation seems clear.  The prohibition is not to allow it to become chametz, it is to make it into (chametz) bread.   Thus, although even if it is already chametz, one is still making it into bread when he continues to knead, shape and bake it.  In fact, it is a surprise when R. Ami states afterwards (56b, bottom) that one transgresses by just placing sour dough on the dough of the mincha and allowing it to become chametz, since in this case one is not actually doing a defined process of making it into bread.  Tosafot (s.v. Hiniach) is forced to say that there is a separate prohibition to allow it to become chametz.  [One could also have said that adding sour dough to make dough rise is part of making it into bread.  The difference between these two approaches would be whether one transgresses if he just passively lets the dough ferment.]

So, when it comes to the mincha and chametz, the prohibition is not the end result, but the process – don’t make it into bread when it is chametz.  However, the case of castration of animals is much harder to understand.  Even if the prohibition is not the end result – to make the animal sterile – one could still argue that something is not considered an act of castration if it doesn’t sterilize.  Perhaps, however, it all depends on how one defines the act.  Certainly, an act of “sterilizing” requires making a non-sterile animal sterile.  However, the act of “castration” could emphasize the bodily disfigurement and not the effect of sterilizing.  This is apparently how the Gemara understood it, perhaps basing itself on the fact that this prohibition appears in the middle of the section of the Torah that talks about general blemishes, and that immediately after this prohibition the Torah states: “And from the hand of a foreigner you shall not offer up the food of your God from all of these, for they are mutilated, their defect is in them, they shall not be accepted in your favor.” (Vayirka 23:25).  Clearly, the problem is the mutilation, and not the fact that the animals have been rendered sterile.

The Gemara then turns its attention to the prohibition of making a blemish on an korban that already has a blemish.  Based on what was just discussed regarding castration, we would expect that here, as well, the act of making a blemish would be problematic, even if the animal is already blemished.  However, we find that this case is debated.  Rabbi  Meir says one does transgress even if the animal was already blemished, much like the case of castration, while the Sages say that in this case one does not transgress.  Presumably, castration is seen as a much greater violation and mutilation, and is thus inherently problematic, whereas a blemish is not itself a big deal, unless it has the effect of making an unblemished, and heretofore acceptable sacrifice, into a blemished and invalid sacrifice.

So, when it comes to making blemishes in sacrifices, the Sages are concerned with the result and R. Meir is concerned with the act itself.  Hence, the Sages quote in their support the verse, “Perfect it shall be, to find favor,” (Vayikra 22:21) while R. Meir quotes in his support the end of that same verse, “No blemish shall you make in it.” (ibid.)  Thus, also, when the Gemara explores how the Sages deal with one of R. Meir’s verses, it states the following:

That verse is necessary for the following teaching: It is written, ‘There shall be no blemish at all therein’: I gather from this that one may not inflict any blemish upon it, but whence do I know that one may not cause it to suffer a blemish indirectly, [e.g.] that one may not place a lump of dough or a pressed fig upon its ear so as to tempt a dog to take it? The text therefore says, ‘No blemish at all’; not only does it say ‘no blemish’ but also ‘no blemish at all’.

Menachot 56b

That is the same part of the verse from which R. Meir derives that the act is what matters, the Sages learn something else.  They derive that one transgresses even if he does not do the act directly, but only by gramma, indirect causation.  This, of course, makes total sense.  Since the Sages focus on the end result, then the same reasoning that leads them to exempt the person who blemishes an already blemished animal, will lead them to find liable the person who indirectly causes an unblemished animal to suffer a blemish.  In the first case, there was an act without a result,  and in the second case there was a result without an act.  For this prohibition the Sages have said that it is the result that matters.  Hence, in the first case the person is exempt and in the second case he is liable.

This conceptual distinction- act or result – is thus key in understanding the nature of various prohibitions, and of course the focus can vary from prohibition to prohibition.  We have also seen that the concept of gramma, indirect causation, is closely linked to this question.  The more we focus on the result, the more we are concerned with gramma, even if the person did not do the act per se.   It is thus interesting to explore the status that gramma has in different prohibitions, whether it is Biblically prohibited, Rabbinically prohibited, or permissible.  This can serve as a rough index into the degree to which the concern is that of the act or of the result.

All of this is mostly of theoretical interest.  However, there is one application which is highly relevant, and that is another case from last week’s parsha – the prohibition for Kohanim to come in contact with the dead.  Is the concern there the act – coming in contact is inherently problematic, regardless of the result, or is it the result – that they should not become impure as a result of this contact?  If it is the latter, then it needs to be asked whether the prohibition would be the same nowadays, if we assume – as we often do – that everyone is already impure due to contact with the dead (we have been in hospitals, been to cemeteries, etc.).   I hope to explore this in a post to soon follow.

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