Nefesh Hachaim

4)The Tzlach writes that we don'tsay aseh of korbon Pesach is docheh the lav of lo sishchat because the aseh andlav are intrinsically linked. Rabbi Akiva Eiger in Mishnayos Chagiga (1:1)argues and compares it to mitzvah of re'iyas habayis with korbon. (Ayin sham).I saw that some point out this machlokes can depend on our chakirah. If the lavis a din in the korbon, then the Tzlach is correct and the aseh and lav are intrinsicallylinked. But if lav is din in chametz then they are separate-lav is hilchoschametz and aseh is hilchos korbon. I have been lazy and it's been a while since I posted. Here is this past week's shiur.I spoke about Meleches Machsheves.

Rav Menachem Zemba has a chakira in Totzaos Chaim (siman 8) whether we say that the meleches mchsheves makes the action into a melacha or do we say the action was always a melacha but the meleches machsheves creates the chiyuv. Inhis teshuvas Zera Avraham he presents both sides as 2 dinim in meleches machsheves as opposed to a chakira. My understanding of what he is saying in Zera Avraham is that depending on the case, one of the two dinim would apply.The example he gives is that 'zomer v'tzarich l'eitzim-pruning for the wood' is chayav on Shabbos but patur from Shmittah.

Tosafos says it is because Shabbos has meleches machsheves. The pshat is that kotzeir b'etzem does not apply to pruning.

So for Shemittah we don't view your act as kotzeir. However, since on Shabbos your machshava is to do that act, it becomes a melacha for Shabbos. In this the meleches machsheves creates shem melacha.

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An example of the other din would be shitas Rabbi Yehuda by melacha sh'ein tzricha l'gufa where you are chayav. You are chayav because according to Rabbi Yehuda, you have enough of a meleches machsheves to create a chiyuv.I saw that Rav Moshe in his Dibros Moshe in Bava Basra has a similar explanation. The gemara in Baba Kama 61 says if you are zoreh and the wind helps you, you ar patur if you damage someone but chayav for Shabbos. One reason given in the gemara is because of meleches machsheves. Rav Moshe explains that by nezikin we care about your act. So all you did was throw something in the air.

The damage was caused by the wind carrying it. However, by Shabbos we care about what you wanted to happen. Your machshava plays a role in deciding if we attribute this action to you. Since you wanted the wind to carry the stalk, you accomplished your goal and we say you did the melacha.In the Totzoas Chaim he points out that there is a machlokes rishonim how to learn the gemara. The Rosh understands the gemara that since this is how zoreh is done, (and how it was done in the Mishkan-see the Chasam Sofer in Shulchan Aruch Siman 252), therefore you are chayav. The mashmaos is that davka by zoreh we say meleches machsheves makes it a melacha. But other melachos we don't say it.

According to the Rosh, meleches machsheves does not give the act a shem melacha but just creates a chiyuv.Rav Asher Weiss and Totzoas Chaim point out that this is also a machlokes between the Rashba and Ran whether you are chayav for writing on Shabbos for 'chok tochos'. Chok kTochos is where l'moshol I have a page full of ink and I erase the ink and m'meila I have wriitng, for gittin it is not kesiva. The Rashba holds you are patur onn Shaboos because it is not kesiva and the Ran says meleches machsheves makes it into kesiva. The Ran holds like the tzad that meleches machsheves gives it a shem melacha.One other nafka mina in the Totzoas Chaim is regarding chatzi shiur on Shabbos. Rashi says chatzi shiur is assur on Shabbos. The Rashbam holds chatzi shiur is patur because it is not meleches machsheves. According to Rashi you can argue that meleches mchsheves does not makes the action into a melacha but rather it just creates the chiyuv.

Therefore, even without meleches machsheves I have a shem melacha and can say chatzi shiur is assur. One nafka mina in this chakirah is chatzi shiur.

Why is thereno issur chayzi shiur for walking less than 12 mil. The Divrei Yechezkel saysthis shows the 1 st tzad makes sense.

Since techum Shabbos is a dinin leaving your mokom, it is not shayach to say chatzi shiur. I saw Rav Sheinberg in his Mishmeres HaChaim discusses this chakirah with regard to ma'avir 4 amos. He says there is no chatzi shiur by 4 amos because by hotza’ahthat each amah is not a davar chashuv in of itself – it’s only the sum whichcreates the chashivus.L'chorah you can say the same vort by techum Shabbos even according to teh Ramban.There are other ways to answer teh question. Maybe we don't say chatzi shiur by issurei melacha. Ayin in Mishmeres Chaim.

You would then need to figure out if techum Shabbos is an issur melacha or a diff issur of Shabbos (like Shevisas Beheima). Rav Shach and the Divrei Yechezkel both discuss this as well. This week I spoke about ayin hara.

The Gemara in Berachos(20a) learns that part of the beracha that Yosef received was that hisdescendants would not be influenced by an ayin hara. We find several places inShas and Poskim where the idea of ayin hara is mentioned including a couplethat are halacha l’ma’aseh. For example, the gemara in Bava Basra 2B says oneis considered a mazik if one stands next to a friend’s field and look at it.Rashi explains the hezek is you are putting an ayin hara on your friend. Wealso pasken in Shulchan Orach that 2 brothers should not receive consecutivealiyos because of ayin hara. The 2questions that need to be answered is a) how does ayin hara actually work b)how can you be mazik someone through an ayin hara if the person doesn’t deserveto be punished.

1) The Chazon Ish (LikutimBaba Basra 14a) seems to understand that ayin hara is a koach people have thatallows them to harm someone. My understanding of the Chazon Ish is that justlike a can be mazik a person by stealing his money or physically damaging hiscar, so too I can be mazik a person through my thoughts. How is it possible toharm someone even though tey don’t deserve it?

The Chazon Ish writes that youcan’t. If HKB”H determined that this person is deserving of punishment then oneway it can be brought about is through an ayin hara. For example, let’s say itwas decreed that a person should lose his car. It can either be stolen, smashedup or lost through an ayin hara. Ayin hara is just a mechanism through whichHashem will punish the person. A similar mehalach is found in the MichtavM’Eliyahu (Chelek 4 page 5&6) and elaborated on by the Sifsei Chiam (EmunahV’Hashgacha chelek 1).

Rav Dessler writes that every person has a connection ona ruchniyu slevel. When Reuvain is jealous of Shimon, this causes a chisaron inShimon’s “shefa hachaim” and makes him more susceptible to be harmed. The SifseiChaim explains this to mean that a person has a koach haratzon through hismachshava to harm someone.

Just like HKB”H created the world through hisratzon, we also have the ability to impact someone through our koach haratzonand machshava. This is similar to the Chazon Ish. However,there is one main difference in the way the Sifsei Chaim explains it. TheSifsei Chaim asks how can you hurt someone who doesn’t deserve it? He gives 2answers. His first answer is that just like Reuvein has a koach haratzon andbechirah, so too does Shimon. The question is whose koach haratzon is stronger.Is Reuvein’s koach haratzon to hurt Shimon is stronger than Shimon’s koachharatzon to not be hurt?

If Reuvein’s koach is stronger than Shimon can beharmed. The Sifsei Chaim explains this does not mean that Reuvein is theshaliach of Hashem to damage Shimon. In this sense he is different than theChazon Ish (according to my understanding of the Chazon Ish).

2) I heard a second mehalachfrom Rav Hershel Schachter in a shiur on ayin hara. The Torah tells us that ifyou mistreat a widow or an orphan and they cry out to Hashem, that you will bepunished.

How does this work? When the widow cries out to Hashem, she is askingthat her tormentor be punished. Normally, Hashem lets things slide and doesn’tpunish people right away. None of us our deserving of anything-we all doaveiros and we all deserve to be punished. The fact that we aren’t punishedright away is part of Hashem’s chesed. However, when someone asks Hashem topunish us, then He looks at what we have done more closely and decides if wereally deserve what we have. According to the Chazon Ish/Rav Desslerperhaps we can say that if you are not makpid about an ayin hara, this meansthat you don’t walk around making people jealous of you.

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As Rav Dessler says,if you are a “nosein” people won’t be jealous of you. M’meilah if everyonrelikes you and is not jealous they won’t put in ayin hara on you. According toRav Schachter’s mehalech, he mentions that the way to combat ayin hara isthrough tefilla and by recognizing “ein od milvado”. Perhaps that is also thepshat in not being makpid about an ayin hara.

When you realize everything isfrom Hashem and “ein od milvado”, you by nature also won’t be makpid about anayin hara. This week’s shiur discussed the question whether you canmake a neder on a davar sh’lo bo l’olam-something which is not here. The Rambamin Hilchos Erachin (6:30-32) says that a neder on a davar sh’lo bo l’olam worksand his rayah is from Ya’akov. Ya’akov promised Hashem that he would bringma’aser from whatever Hashem would give him and later on at the end of theParsha we find that Hashem calls that a neder. In Hilchos Mechirah (22:17) theRambam also brings this halacha but he writes it a little differently. InHilchos Erachin he writes “if a person says ‘I will give any fish that I catchto Hekdesh’ then it works”.

In Hilchos Mechirah he writes “if a person says ‘Iwill give any animals born to Hekdesh’ or ‘Any animals born will be hekdesh’then it works”. In Hilchos Mechirah he brings both a case of “I will give” anda case of “it will be”. In Hilchos Erachin he only brings the case of ‘I willgive”. The Raavad in Hilchos Mechirah argues on the Rambam that only a case of“I will give” works but the other case of “it will be” does not work.

The question is what are they arguing aboutand why does the Rambam only bring one case in Erachin and both cases inMechirah? There are a number of mehalchim in the achronim to explainthis Rambam. Rav Moshe in the Dibros Moshe Nedarim (Siman 6 anaf 5,6) presentsone explanation. He writes that there is a machlokes rishonim whether you canmake a neder on a mitzvah. Can one make a neder to say ‘I will learn thisperek’. A neder is usually an issur on a cheftzah so how can it apply to anaction?

The Ran holds you can’t and when the gemara says that you can make aneder to say ‘I will learn this perek’, it really means you are making ashevuah. Other Rishonim like the Ramban and Ritva hold the neder works. RavMoshe explains that they learn this from tzeddaka. The gemara in Rosh Hashanasays one can make a neder on tzeddakah, so if a neder on tzeddakah works so tooa neder on a mitzvah will work. The Ran will tell you that neder on tzeddakadoesn’t work b’toras neder but rather we say the rule of “amiraso l’gavoahk’mesiraso l’hedyot” applies even to tzeddaka and not just hekdesh.Therefore, when you say you give it totzeddaka it is like the ani made a kinyan on it. Rav Moshe explains that this is the machlokes between theRambam and Raavad.

The Rambam holds a neder on tzeddaka works like a neder andtherefore even on a davar sh’lo bo l’olam a neder can work. You can obligateyourself through a neder to bring something or make something tzedaka in the future. Even a loshon of “itwill be tzeddaka” should work.

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The Raavad however will tell you that using theloshon of “I will give” is a loshon of neder. But saying “it will be” is not aloshon of neder but more lie a loshon of nedava and that only works through thedin of “amiraso l’gavoah k’mesiraso l’hedyot” and that can not work on a davarsh’lo bo l’olam.

This week I spoke about the question of paying a shadchan. Specifically, how much do you pay a shadchan when the chassan is from one city which pays higher rates and the kallah is from a city which pays lower rates. The main point to understand is that a shadchan has a din of a hired worker (a poeil) and paying a shadchan is a shailah in Choshen Mishpat.The Panim Meiros discusses this question and he understands that m'tzad the chassan, the shadchan is working for him in the city of the kallah and m'tzad the kallah, the shadchan is working for her in the city of the chassan. Based on a Yerushalmi in the beginning of Bava Metzia Perek 7, he says you pay based on where the poeil did the work. Therefore, the kalllah would pay based on the rates in the chassan's city and the chassan would pay based on rates in the kallah's city.However, there is an exception. If the shadchan and chassan live in the town with cheaper rates, the chassan could argue that he hired the shadchan based on their city rates and therefore he pays the cheaper rate.There is a machlokes haposkim in a case where the chassan from a higher rate city goes to hire the shadchan from a lower rate city to find a shidduch in the higher rate city. According to the Yerushalmi the socheir can argue I went to the lower rate town to higher cheaper work.

I don't care that you are working in the higher rate town-to pay higher rates I would have hired a guy from my town.The Panim Meiros says by a shadchan you don't say that since you davka wanted that shadchan-his work is qualitatively better. Unlike a poeil-a worker is a worker. The Minchas Elazer argues and says you can pay cheaper rates. Even in the yerushalmi you can argue some workers are better. We don't say that and pay cheaper rates.

The Rambam (Hilchos Mila 1:7) paskens that both a ger who had a mila as a non-Jew and a child born with a mila rquires hatafas dam bris. The m'kor for this halacha seems to be a gemara in Shabbos DAf 135 which says that the koton born with a mila rquires hatafas dam bris because of a safeik orlah kevushah-we are afraid the orlah is hidden and teh child is really an oreil.There are a number of questions asked on this Rambam.1) The Minchas Chinuch (Mitzvah 283) says that the Rambam paskens in Hil Teruma that a chikd born with a mila can eat terumah. The question is why. If we are afraid that he is really an oreil, so we should be machmir m'safeik and not let him eat terumah.2) The Rambam in Hil Mila Perek 3:6 writes that both the ger and koton do not make a beracha on the hatafas dam bris. I can understand that we don't make a beracha on the koton since the whole reason for the hatafas dam bris is due to a safeik orlah and m'safeik we don't make a beracha.

However, the reason for the ger can't be because of safeik orlah kevusha-the ger had a real bris. The only reason he needs hatafas dam bris is because the milah was done when he was a non Jew. Why wouldn't he require a beracha?3) The Kehillas Yaakov in Shabbos asks that the gemara in Yevomos 71a learns that a father who has a katan sh'nolad mohel can't eat the korbon pesach (until the hatafas dam bris is done). Why is this different than teruma where we say the katan can eat terumah.4) The Minchas Chinuch also asks, if we are choshesh for orlah kavusha, how does hatafas dam bris solve this problem.

All you are doing is drawing some blood-you are not cutting anything away.There are a few mehalchim to answer these questions. Below is the mehalach of the Mishkanos Yaakov (Y.D. Siman 63)He writes that b'emes there is a machlokes hasugyas between the genara in Yevomos 71 and Shabbos 135.

The gemara in Yevomos brings the shitta of Rabbi Akiva that we learn from a posuk that both a ger who had a mila as a non Jew and a father who has a katan sh'nolad mohel can't eat the korbon pesach. If the reason why the koton needs hatafas dam bris is because of safeik orlah kevushah, why do we need a limud for this? It is pashut-the child is a safeik oreil and m'meilah you can't eat the korbon Pesach. Therefore, you have to say that according to Rabbi Akiva, the reason for hatafas dam bris isn't because of safeik orlah kevusha but rather it is a din in the mitzvas mila-part of the mitzva is a requirement to do hatafas dam bris. In fact the zohar says there are 3 parts to mila, the mila, p'riah and hatafas dam.The gemara in Shabbos argues on Rabbi Akiva and holds the reason for a katan is because of orlah kevusha.Furthermore, According to the gemara in Yevamos, the reason both a ger and a koton need hatafas dam bris is the same reason-both are missing the mitzvah of hatafah of dam bris.

The ger had a ma'aseh mila but there was no hatafas dam l'shem bris.We can now say that the Rambam paskens like the sugyah in Yevomos and hatafas dam bris is itself a mitzvah. (unlike the Rif and Rosh who hold the reason is orlah kevusha).

We can answer the questions above.1) The issur of eating teruma is only for an oreil. Even though the koton is lackning the mitzvah of hatafas dam bris, he is still not considered an oreil. (ayin R' Chaim al hashas that says the same idea). Since he is not an oreil he can eat terumah. L'chorah you have to say that the Mishkanos Yaakov understands that the shem oreil goe saway when the orlah is removed or is not present. Since this koton does not have an orlah he is not considered an oreil even though he is missing a chelek of the ma'aseh mitzva of mila (i.e.

The hatafas dam).2) The reason we don't make a beracha has nothing to do with safeik berachos but it is because although the hatafa is a chelek of the mila, the chachamim were not misakein a beracha on the hatafa by itself. Furthermore, the Mishkanos Yaakov points out, in Mila 3:6 the Rambam mentions an androgonus doesn't make a beracha on hatafas since it is a safeik beracha. We see that koton and ger must be a different reason.3) The Kehillas Yaakov says that the issur of bringing the korbon pesach does not depend on the shem oreil, but rather on whether the mitzva of mila was completed. The proof is that you can't bring a korbon pesach if your slave doesn't have a mila-even though you are not an oreil.