Burning Chametz 5777
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Dividing positive commandments into categories
- Tzitzit and Grace after Meals as conditional obligations rather than existential commandments
- Women and time-bound positive commandments, and the Raavad: “women may perform laying on of hands voluntarily”
- A prohibition derived from a positive commandment: nullification without fulfillment
- Definitional/procedural positive commandments in Maimonides: impossible to fulfill and impossible to nullify
- Morality versus Jewish law, and “You shall be holy” in Maimonides and Nachmanides
- “You shall eliminate leaven from your houses” in Maimonides: positive commandment and prohibition, and the duplication of positive commandment/prohibition
- The Minchat Chinuch: three understandings of “you shall eliminate,” and practical differences
- Four possible ways to place “you shall eliminate” within the spectrum
- The dispute between Rabbi Yehuda and the Sages about destroying leaven: action versus result
- Maimonides in the laws of leaven: methods of destruction, giving it to a non-Jew, and charcoal after the sixth hour
- The Tur and the Magen Avraham: items that are burned, items that are buried, and the contradiction in Maimonides
- Rabbi Akiva Eiger: burning is still elimination, and therefore “its commandment has been performed”
- Rav Chaim: a result-commandment on the owner versus an object-commandment in burning, and resolving the Tur
- Summary of the spectrum: “you shall eliminate” between action, result, and the weakness of “a prohibition derived from a positive commandment”
Summary
General overview
The text presents a systematic division of positive commandments into several categories, clarifies the precise meaning of an “existential commandment” as opposed to an “obligatory commandment” and as opposed to a “conditional obligation,” and adds two more types: “a prohibition derived from a positive commandment” and positive commandments that are definitions/procedures, with neither fulfillment nor nullification. Against that background, the commandment “you shall eliminate leaven from your houses” is presented as a commandment that can be understood in several very different models, and corresponding halakhic / of Jewish law practical differences are developed. The discussion is sharpened through the dispute between Rabbi Yehuda and the Sages about destroying leaven, through the formulations of Maimonides, the Minchat Chinuch, the Tur, the Magen Avraham, Rabbi Akiva Eiger, and Rav Chaim, and especially around the question whether the commandment is an act of destruction, the result that “there is no leaven in one’s possession,” or even “a prohibition derived from a positive commandment,” and what that does to the law of burning and to ashes/charcoal.
Dividing positive commandments into categories
The text distinguishes between an obligatory positive commandment, where one who fulfills it fulfills a commandment and one who does not fulfill it nullifies a positive commandment, and an existential positive commandment, where one who fulfills it fulfills a commandment and one who does not fulfill it—“nothing happened,” and there is no nullification. The text argues that the concept of an “existential commandment” is not really clear as an independent halakhic / of Jewish law category, and that usually what is meant is a commandment that has a binding minimum threshold, and beyond that threshold the fulfillment is existential—for example charity beyond a third of a shekel per year and up to one-fifth, or Torah study beyond the minimum of “a chapter in the morning and a chapter in the evening” according to some views. The text presents a dispute regarding the commandment of settling the Land of Israel, where Rabbi Moshe Feinstein innovates that it is an existential commandment, and Rabbi Avraham Shapira strongly objects to that innovation and argues that there is no such category as a commandment that is “entirely voluntary” without any obligating circumstances.
Tzitzit and Grace after Meals as conditional obligations rather than existential commandments
The text rejects presenting tzitzit as an existential commandment and defines it as a conditional obligation: if one wears a four-cornered garment, one is obligated to place tzitzit on it; and if one does not wear such a garment, there is no obligation. But if the circumstances exist and tzitzit was not placed, there is a nullification of a positive commandment. The text uses Grace after Meals as an analogy: there is no obligation to eat, but if one ate to satiety one is obligated to bless, and if one ate and did not bless there is a nullification of a positive commandment. Therefore this is a conditional obligation, not an existential commandment. The text sharpens the point that an existential commandment, by definition, is a commandment in which there is never a nullification of a positive commandment, whereas a conditional obligation allows nullification when the conditions are met.
Women and time-bound positive commandments, and the Raavad: “women may perform laying on of hands voluntarily”
The text presents time-bound positive commandments for women as a case that people sometimes try to call an “existential commandment,” but suggests that this does not feel like the simple plain meaning, because “exempt” means “not commanded.” The text brings a possible proof from the Raavad at the beginning of Sifra on “women may perform laying on of hands voluntarily,” where the Raavad explains that women can lay hands on a sacrifice even though there is an aspect of prohibition of working with a sacrifice, because “even in an existential positive commandment… a positive commandment overrides a prohibition.” The novelty is that even the fulfillment of a commandment that a person is not obligated in can override a prohibition. The text notes that this may be connected to the question of whether something is fully permitted or merely pushed aside, and emphasizes that Rabbi Avraham Shapira’s main disagreement concerns a commandment that is “entirely existential,” with no situation of obligation for anyone.
A prohibition derived from a positive commandment: nullification without fulfillment
The text defines a type of positive commandment in which “it is possible to nullify, but impossible to fulfill,” and identifies this as “a prohibition derived from a positive commandment.” The text brings the example of Sabbatical-year produce: “for eating and not for commerce,” where there is no commandment to eat Sabbatical produce (except for an unusual understanding in Maimonides), but one who engages in commerce with it commits a transgression that is not a formal prohibition but a nullification of a positive commandment. The text brings another example of “only to a non-Jew may you lend with interest,” where according to most views among the medieval authorities (Rishonim) there is no positive commandment to lend with interest to a non-Jew; rather, this formulation extracts the prohibition on lending with interest to a Jew as a nullification of a positive commandment. The text adds examples from Maimonides regarding checking the signs of purity in fish and animals, where the checking itself is not the fulfillment of a commandment, but failure to check that leads to eating prohibited food adds a nullification of a positive commandment on top of the prohibition of forbidden foods.
Definitional/procedural positive commandments in Maimonides: impossible to fulfill and impossible to nullify
The text presents a fourth type of positive commandment which, according to Maimonides, is one where “it is impossible to fulfill and impossible to nullify,” and brings two explicit examples that Maimonides counts: positive commandment 95, annulment of vows, and positive commandment 96, the laws of impurity of creeping creatures. The text quotes Maimonides as explaining that there is no commandment to annul and no prohibition against not annulling; rather, annulment is a halakhic / of Jewish law mechanism that, when done under certain conditions, takes effect, and if not done does not take effect. Likewise, in impurity there is no commandment to become impure and no commandment not to become impure; rather, this is a definition of when a person becomes impure and what the implications of the state of impurity are. The text suggests an understanding according to which, for Maimonides, “commandment” in Sefer HaMitzvot means “law,” and Sefer HaMitzvot is a “book of laws” that also includes definitional clauses which are neither command nor prohibition, but define statuses for other laws.
Morality versus Jewish law, and “You shall be holy” in Maimonides and Nachmanides
The text distinguishes between a formal halakhic / of Jewish law obligation and a moral “value” or general direction, and argues that in things like mockery, anger, and arrogance, “halakhically there is no prohibition,” even though it is “not okay.” The text mentions Maimonides in his commentary on the Mishnah in the third chapter of tractate Sanhedrin, on “idlers who are disqualified from testimony,” and implies that there seems to be a novelty there, as though there is a prohibition on being idle, though the text does not decide whether he means a formal prohibition. The text explains the “scoundrel paradox” according to Nachmanides on “a scoundrel within the permission of the Torah,” and clarifies why “You shall be holy” is not counted: Maimonides defines it as an inclusive commandment and therefore does not count it, based on the fourth root, and Nachmanides does not add it in his glosses because if it had been a counted commandment, then one who did not fulfill it would not be “a scoundrel within the permission of the Torah” but would be nullifying a positive commandment. The Torah wants to leave this as a domain that is not enforceable as a counted halakhic / of Jewish law command.
“You shall eliminate leaven from your houses” in Maimonides: positive commandment and prohibition, and the duplication of positive commandment/prohibition
The text moves to the commandment of eliminating leaven and brings Maimonides in positive commandment 156, who defines the commandment of “you shall eliminate” as destroying leaven on the 14th of Nisan, and quotes the Jerusalem Talmud, Sanhedrin: “For leaven one is liable for a positive commandment and a prohibition,” with the positive commandment being “you shall eliminate” and the prohibition being “leaven shall not be found in your houses.” The text asks why an additional positive commandment is needed on top of “it shall not be seen” and “it shall not be found,” and brings a rule from Maimonides in the sixth root that even if the positive commandment and prohibition have the same content, both are still counted—unlike two positive commandments or two prohibitions, which are not counted twice when there is no substantive difference. The text adds a note in the name of Rabbi Rabinovitch about a phenomenon of pilpul in Maimonides without familiarity with the rules that Maimonides himself assumes for reading him.
The Minchat Chinuch: three understandings of “you shall eliminate,” and practical differences
The text brings the Minchat Chinuch on commandment 9, who raises a doubt whether the positive commandment of “you shall eliminate” is a state/result of “the leaven shall be eliminated,” such that someone who has no leaven fulfills a positive commandment passively, similar to “resting” on Sabbath and Jewish holidays, or whether this is a prohibition derived from a positive commandment, and concludes that it resembles resting and not “a prohibition derived from a positive commandment.” The text sharpens that the Minchat Chinuch distinguishes between a prohibition derived from a positive commandment, where “he does not fulfill the commandment by refraining from action,” and an obligatory positive commandment that is fulfilled through inaction, where refraining from labor is itself fulfillment of a positive commandment. The text brings practical differences: if someone else snatched the leaven and burned it, then if the commandment is result-oriented the person still “fulfilled” it and no commandment was snatched from him, so there is no fine of “ten gold pieces” for “preventing another from performing a commandment”; whereas if the commandment is an active obligation, then the snatcher has snatched the commandment and is liable for the fine. If he eliminated it on Passover by eating it, then according to the active model this is “a commandment that comes through a transgression,” whereas according to a result-commandment the very absence of the leaven avoids the claim of a commandment that comes through a transgression. If the commandment is fulfilled passively, then no intention is needed in order to fulfill it, whereas in an active commandment this depends on the dispute whether commandments require intention.
Four possible ways to place “you shall eliminate” within the spectrum
The text suggests that “you shall eliminate” can be understood in almost all the possibilities of positive commandments: as a conditional obligation—“if you have leaven, destroy it”; as an obligatory commandment of action requiring an act of destruction; as an obligatory result-commandment fulfilled by there being no leaven in one’s possession; and as a prohibition derived from a positive commandment, in which there is no fulfillment of a positive commandment at all, only the transgression of nullifying a positive commandment when one has leaven. The text emphasizes that the Minchat Chinuch raises three possibilities within his discussion, and the author adds the possibility of a conditional obligation as an additional model not identical to the Minchat Chinuch’s proposals. The text ties the decision to the practical question whether one would need to “acquire leaven” in order to destroy it so as to gain fulfillment of the commandment, and to practical questions of blessing, snatching a commandment, a commandment that comes through a transgression, and intention.
The dispute between Rabbi Yehuda and the Sages about destroying leaven: action versus result
The text brings the Mishnah in tractate Pesachim 21: “Rabbi Yehuda says: leaven may only be destroyed by burning, and the Sages say: one may also crumble it and scatter it to the wind or throw it into the sea,” and suggests that on the face of it Rabbi Yehuda requires specifically a commandment of action through burning, while the Sages allow various methods that fit understanding the commandment as a result. The text notes the possibility that the Sages are not necessarily speaking of a result-commandment, but only disagree about the manner of carrying out the elimination, and raises the connection to the dispute between Rashi and Rabbenu Tam over whether “you shall eliminate” is before Passover or during Passover itself. The text presents a conceptual difficulty: if “you shall eliminate” begins long before Passover, then even someone who eats leaven long before Passover would supposedly count as “destroying” it, and it mentions a claim that some want to limit the obligation to “thirty days before the festival” in order to avoid that strange result.
Maimonides in the laws of leaven: methods of destruction, giving it to a non-Jew, and charcoal after the sixth hour
The text quotes Maimonides, who rules like the Sages: “How does one destroy leaven? He burns it, or crumbles it and scatters it to the wind, or throws it into the sea,” and adds Maimonides’ detail that if the leaven is hard, “he crumbles it and then throws it into the sea.” The text brings Maimonides’ ruling that if “he gave it to a non-Jew before the sixth hour, he need not destroy it,” because it is no longer in his possession, and the ruling that if he burned it before the sixth hour, “it is permitted to derive benefit from its charcoal during Passover,” but if he burned it from the sixth hour and onward, “it is forbidden to derive benefit from it,” and even “its charcoal is forbidden for benefit.” The text raises the question how the law of the charcoal fits with the rule of “things that are burned” versus “things that are buried,” and what that implies about the nature of the commandment of elimination.
The Tur and the Magen Avraham: items that are burned, items that are buried, and the contradiction in Maimonides
The text brings the Tur, who ties the permissibility of deriving benefit from the ashes to the dispute between Rabbi Yehuda and the Sages: according to Rabbi Yehuda, leaven is something whose “commandment is by burning,” and therefore “all things that are burned—their ashes are permitted,” while according to the Sages, leaven is like “things that are buried,” and therefore “their ashes are forbidden.” The text quotes the Magen Avraham, who is puzzled by Maimonides and the Shulchan Arukh: if according to the Sages this belongs to the category of “things that are buried,” then “we learned… that all things that are buried should not be burned” because of the concern that one may derive benefit from the ashes. If so, how can Maimonides rule that it is permitted to burn it and yet forbid deriving benefit from the charcoal? The text brings the Magen Avraham’s answer that it is permitted to burn it “provided one does not derive benefit from its ashes,” and that it does not receive the “law of things that are burned,” and notes that according to the Meiri this is somewhat strained and compressed.
Rabbi Akiva Eiger: burning is still elimination, and therefore “its commandment has been performed”
The text presents Rabbi Akiva Eiger’s difficulty with the Magen Avraham and the Tur: even according to the Sages there is a commandment of “you shall eliminate,” and if burning is a valid way of eliminating, then one should say “its commandment has been performed,” and therefore the ashes should be permitted. There is no room to apply to leaven the decree that “things that are buried should not be burned.” The text describes Rabbi Akiva Eiger’s assumption that the commandment is an obligatory commandment, and that the Sages’ methods are alternatives for the act of elimination rather than a cancellation of the very concept of the commandment, and therefore the objection to burning itself as part of the law of elimination “doesn’t even get off the ground.” The text sharpens that from this it follows that the Magen Avraham’s understanding hints as though according to the Sages there is no fulfillment of a commandment in burning, and that there is even some connection to understanding “you shall eliminate” as a prohibition derived from a positive commandment—which is what ignites the debate.
Rav Chaim: a result-commandment on the owner versus an object-commandment in burning, and resolving the Tur
The text brings Rav Chaim, who connects the discussion also to Maimonides’ position about lashes for “it shall not be seen” and “it shall not be found,” even though this is “a prohibition repaired by the positive commandment of ‘you shall eliminate,’” and brings Tosafot’s question how one can receive lashes for a prohibition repaired by a positive commandment. The text quotes Rav Chaim, who resolves Rabbi Akiva Eiger’s difficulty on the Tur by means of a distinction: the commandment of “you shall eliminate” “in the other forms of elimination” is mainly a commandment that “the owner should not have leaven,” whereas the commandment of burning is a commandment that applies to “the object of the leaven, with the legal status of burning.” The text explains that according to Rav Chaim, in order to permit the object under the rule that “its commandment has been performed,” the commandment has to be fulfilled in the object itself; it is not enough that the owner fulfilled a commandment imposed on him on the level of result. Therefore it is possible that according to the Sages the ashes remain forbidden even though there is fulfillment of “you shall eliminate” as a result. The text presents that Rav Chaim does not see this as a prohibition derived from a positive commandment, but as an obligatory positive result-commandment; still, he determines that a result-model does not generate the permission of “its commandment has been performed” regarding the ashes, unlike the model of action/burning.
Summary of the spectrum: “you shall eliminate” between action, result, and the weakness of “a prohibition derived from a positive commandment”
The text concludes that in the commandment of “you shall eliminate,” “the whole spectrum” of possibilities is spread out: a commandment of action through burning (Rabbi Yehuda), a commandment of action by any method (this is one way to read the Sages according to Rabbi Akiva Eiger), a result-commandment that “the owner should not have leaven” (Rav Chaim as an explanation of the Tur), and an extreme possibility in which there is no fulfillment of a positive commandment at all, but rather “you shall eliminate” is a prohibition derived from a positive commandment that adds the transgression of nullifying a positive commandment for someone who has leaven. That explains why “the ashes are forbidden” according to the Sages in the Tur. The text leaves the decision between these different readings dependent on the language of the medieval authorities (Rishonim) and later authorities (Acharonim), and on practical differences concerning burning, ashes, the fine for snatching a commandment, a commandment that comes through a transgression, and the duplication of positive commandment and prohibition in the enumeration of the commandments.
Full Transcript
[Rabbi Michael Abraham] The destruction of leaven, more precisely—and afterward I thought I’d broaden this a bit into a larger topic. Meaning, after Passover this is really a point that can be expanded much more. Maybe I’ll start with something—I may have spoken about this once, I don’t really remember. I’m sure I talked about it at some point. Jewish law is divided into commandments, and Jewish law is divided into positive commandments and prohibitions. There are several types of positive commandments—in practice, four or five types. A regular positive commandment, just as an introduction, and then we’ll see that in the commandment of eliminating leaven, “you shall eliminate leaven from your houses,” it can be interpreted in almost every one of those directions. So there’s a regular positive commandment, like the commandment to put on tefillin. That’s an obligatory commandment. An obligatory commandment means that if you did it, then you performed a commandment, and if you didn’t do it, then you nullified a positive commandment. A lighter transgression than a prohibition—nullifying a positive commandment. There’s an existential positive commandment. An existential positive commandment is a commandment such that if you fulfill it, you have a commandment, but if you don’t do it, nothing happened. Meaning, you’re not obligated. So an obligatory commandment can be fulfilled and can be nullified. An existential commandment can be fulfilled, but cannot be nullified. What commandments of that sort are there in Jewish law? In practice, it’s not entirely clear that there really is such a commandment in Jewish law, even though this concept is very common nowadays. Tzitzit, for example. Right—but tzitzit is not correct. I’ll explain in a second why not. The usual “existential commandments” people talk about are commandments that at root are obligatory, but there’s a minimal threshold beyond which it becomes existential. For example, the commandment of charity. In charity, you have to give a third of a shekel per year. That’s the minimum everyone must give. Beyond that, up to one-fifth—after one-fifth you’re not allowed to give more; that’s only optional, “one who spends should not spend more than one-fifth.” But between a third of a shekel per year and one-fifth, that’s an existential commandment. If you gave, then you have a commandment; if you didn’t give, okay then not. Or Torah study according to some views, or reciting Shema morning and evening is an obligation, or “a chapter in the morning and a chapter in the evening” is an obligation; everything beyond that is an existential commandment, but if you didn’t do it, then there’s no—so with an existential commandment, you didn’t nullify it. There is one commandment about which there’s a dispute whether it is entirely existential—not just from a minimum threshold and upward. And that is the commandment of settling the Land of Israel. Rabbi Moshe Feinstein wants to innovate—and this is a very big innovation—he wants to say that this is an existential commandment. Whoever does it has a commandment; whoever doesn’t—doesn’t. He sits in the United States. Whoever does it has a commandment, but whoever doesn’t, nothing happened; it’s an existential commandment.
[Speaker B] And if not, then you’re not in trouble. What?
[Rabbi Michael Abraham] Yes. So that’s what he argued. Rabbi Avraham Shapira reacted very sharply against this, and the basic argument is that there is no such commandment. There is no such category in Jewish law. There is no such thing as an existential commandment in Jewish law. There is in Jewish law a commandment with an obligatory threshold, and beyond that it becomes existential, like charity or Torah study, the examples I mentioned earlier. But there is no commandment that is entirely a voluntary matter. Forgotten sheaves, for example? What?
[Speaker B] Isn’t that existential? No.
[Rabbi Michael Abraham] If you forgot, then you have to leave it.
[Speaker B] You don’t have to forget.
[Rabbi Michael Abraham] You don’t have to forget, okay. You also don’t have to eat—but if you ate, then you have to recite Grace after Meals.
[Speaker B] You don’t have to eat. If you eat, you’ll be fulfilling a commandment.
[Rabbi Michael Abraham] No. And if I never eat the minimum quantity, then what is there? Then not.
[Speaker B] Grace after Meals, which is Torah-level, if you ate then you’re obligated—
[Rabbi Michael Abraham] If you didn’t eat to satiety, then you won’t be obligated in Grace after Meals. So then you’re not. If someone has no parents, then he has no commandment of honoring parents. So he can’t honor parents; he has no parents—they died when he was young, I don’t know, he grew up in an institution. That doesn’t mean anything. Those are circumstances in which the obligation in the commandment does not arise. So that’s why I say: an existential commandment—a commandment that is entirely existential—there’s a dispute whether there is such a thing at all. The accepted definitions of an existential commandment are a commandment which from some minimum onward is existential. Meaning, there is an obligatory commandment, but it has a certain threshold beyond which it is only existential: if you want, do it; if you don’t want, don’t do it. Why is tzitzit not a good example? And several later authorities (Acharonim) write that tzitzit is an existential commandment, and that is simply a mistake. It’s a confusion of concepts. Tzitzit is a conditional obligation, not an existential commandment. Meaning, it’s a commandment that if you wear a four-cornered garment, then put tzitzit on it. If you don’t wear a four-cornered garment, then you are not obligated in tzitzit. Why do I not call that an existential commandment, but rather a conditional obligation? Very simple: because if I wear a four-cornered garment and I didn’t put tzitzit on it, then I nullified a positive commandment. But an existential commandment cannot be nullified; it can only be fulfilled. The moment nullification is relevant to the commandment, then it is not an existential commandment, it is an obligatory commandment—just one that is obligatory under certain circumstances, meaning, if certain circumstances exist, it becomes obligatory. Existential commandments do not depend on any circumstances; it’s simply, if you want, do it; if you don’t want, don’t do it. There are no circumstances in which you are obligated. Therefore, with existential commandments there is never a nullification of a positive commandment. You can’t nullify it; you can only fulfill it. A conditional obligatory positive commandment can also be nullified—if the circumstances existed and you didn’t do it. So, as I said earlier, would anyone imagine that Grace after Meals is an existential positive commandment? If I don’t eat, I’m not obligated to bless. No—it’s a conditional obligation. If I ate, I’m obligated to bless. If I ate and didn’t bless, that’s nullifying a positive commandment. A conditional obligatory commandment is a commandment that can be nullified; an existential commandment is a commandment that cannot be nullified. So that’s the second type, and if you want, the conditional obligatory one is a third type—it doesn’t matter—but these are obligatory, existential, and conditional obligatory, which is in between them. The third or fourth type of commandments—so far we had an obligatory commandment that can be fulfilled and can be nullified, an existential commandment that can be fulfilled and cannot be nullified.
[Speaker B] Is there such a thing? An existential commandment?
[Rabbi Michael Abraham] I said: either settling the Land of Israel according to Rabbi Moshe Feinstein, or a certain threshold. From a certain threshold and upward—if you gave a third of a shekel per year, then if you gave beyond that you have a commandment; if you didn’t give, nothing happened. Beyond the third of a shekel. Up to a third of a shekel, you are obligated; that is fully obligatory. But above the threshold—or Torah study, a chapter in the morning and a chapter in the evening, you are obligated. If you learned beyond that, then you have a commandment; if you didn’t learn, then not—nothing happened. But this is important: that is a commandment you can nullify—only its obligatory part.
[Speaker B] You can’t nullify the commandment beyond that.
[Rabbi Michael Abraham] Also in tzitzit, you can nullify only if—no, you nullify the whole commandment. If I gave a third of a shekel per year, I already gave it—now what commandment applies to me now?
[Speaker B] Now a fully existential commandment applies to me. I can’t nullify it. If I do it, there’ll be a commandment, but if I don’t do it, there’s no way to nullify it after I already gave the third of a shekel. So there is a commandment you cannot nullify? There is an existential commandment, yes. If I fulfill it, I have a commandment. But why is it a commandment at all? Meaning, if I need to give a third of a shekel, why is there still something beyond that? That’s the obligation—you even have to actively look for a poor person if you didn’t find one. Beyond a third of a shekel per year: if you gave, then fine; and if you didn’t give, nothing happened. And that is a commandment. That is a commandment? Because the Torah said that this is a good thing.
[Rabbi Michael Abraham] No, the Torah said this is defined as a commandment, it is fulfillment of a commandment. Even beyond? A positive commandment, yes. But it is a positive commandment that can only be fulfilled: if you fulfilled it, then you have a commandment; if you didn’t fulfill it, that is not a transgression. So what is an obligatory commandment that cannot be nullified? Every obligatory commandment… a commandment… no, an existential commandment cannot be nullified. An obligatory commandment can be fulfilled, can be nullified. An existential commandment can be fulfilled, but cannot be nullified.
[Speaker B] An obligatory commandment—that’s the definition of the medieval authorities (Rishonim), if you—
[Rabbi Michael Abraham] —are obligated, and if you didn’t fulfill it, then you nullified it. Right? Let me maybe give you an example of something that, again, I feel is not in this category even though people are used to defining it as an existential positive commandment—time-bound commandments for women, time-bound positive commandments. So according to most views among the medieval authorities (Rishonim), women can also fulfill these positive commandments even though they are not obligated in them. There are views that say they can even recite a blessing; the Rema and the Shulchan Arukh—Ashkenazim and Sephardim have different customs on this issue. But according to most views among the medieval authorities (Rishonim), women can certainly fulfill them. So what is the status of a woman who fulfills them?
[Speaker B] She has a commandment.
[Rabbi Michael Abraham] That’s the question. Now, clearly there’s some sort of value in it. The question is whether such a thing is called fulfillment of a positive commandment, because they are not commanded—so it could be that there’s a good deed here, but the question is whether that is called an existential positive commandment. Quite a number of later authorities (Acharonim) relate to this as an existential positive commandment. It seems to me that one can bring a certain proof for this from the Raavad at the beginning of Sifra. The Raavad says there, “women may perform laying on of hands voluntarily.” That’s really where the debate begins—laying hands on a sacrifice. So a woman is not obligated to lay hands on a sacrifice, only a man is, but she is allowed to. “Women may perform laying on of hands voluntarily”—that’s the debate and the question how to rule, and that also projects onto the question of time-bound positive commandments. Now the Raavad says that to lay hands on a sacrifice when you are not obligated, you are violating a prohibition, because that is considered labor with a sacrifice. Meaning, if you have a commandment, then the commandment says yes, lay hands on it. But if you don’t have a commandment, then you have a prohibition of labor with a sacrifice or using a sacrifice. So he says that women can lay hands even though that involves a transgression, because even in an existential positive commandment—in my language—even in an existential positive commandment, a positive commandment overrides a prohibition. So here it really does seem that there is an existential positive commandment, because if it were just a good deed, a good deed can’t be done when it involves a transgression, a negative prohibition. But if it’s a commandment in the formal sense, fine—a positive commandment overrides a prohibition. The Raavad’s novelty is that even a positive commandment that I am not obligated to perform—meaning, there is no prohibition if I don’t do it—still, fulfilling it overrides the prohibition. It may be connected to the question whether this is considered fully permitted or merely pushed aside, if that’s how you understand it.
[Speaker B] But you basically defined an existential commandment…
[Rabbi Michael Abraham] Right, but for men it is fully obligatory. What? But for men it is fully obligatory. Fine, but the commandment—the commandment in the Torah—is an obligatory commandment. It has certain appearances, either beyond a certain threshold or with certain persons, women as opposed to men, say. Yes, right, so… but it’s the same idea because there is an obligatory dimension here. On that point even Rabbi Avraham Shapira would not disagree. Meaning, what he disputes is a commandment that is entirely existential. Meaning, there is no one, under no circumstances, who is obligated to do it. If you did it, you have a commandment. That’s it. His claim: there is no such thing in Jewish law. Now, my feeling is that the simple plain meaning is not like that. Meaning, a woman who performs a time-bound positive commandment is exempt. “Exempt” doesn’t mean that if she doesn’t do it, she doesn’t nullify a positive commandment, but rather that she is not commanded. That’s the usual formulation. Now if she is not commanded, then existential means a commandment you are not commanded in. Rather, what can you say? That it’s a good deed, meaning it’s not adding to the Torah, say, if she simply does it because there is value in it. The Torah says there is value in doing it, so a woman is allowed to do it according to the views that allow it; there are views that forbid it. According to the views that allow it—but that doesn’t mean that the woman is also fulfilling a positive commandment here, even in the existential sense. So here again my feeling is that this is not the simple plain meaning, but it’s true that from the Raavad it sounds like it really is—truly—an existential positive commandment. In any case, so far we’ve seen an obligatory positive commandment that can be fulfilled and can be nullified, an existential positive commandment that can be fulfilled and cannot be nullified, and a conditional obligation—that’s another category. What remains from the combinatorics? Two more possibilities, right? Either a positive commandment that can be nullified but cannot be fulfilled, or a positive commandment that can neither be nullified nor fulfilled. Right?
[Speaker B] Four possibilities.
[Rabbi Michael Abraham] Right. So let’s now look at the third possibility. What is a positive commandment that can be nullified but cannot be fulfilled? Any ideas?
[Speaker C] Can be nullified but can’t be fulfilled.
[Rabbi Michael Abraham] If you did it, nothing happened… you didn’t gain a commandment. But if you didn’t do it, then you committed a transgression—nullifying a positive commandment. To betroth a woman?
[Speaker C] Yeah, listen… it’s a commandment, okay, but if you didn’t do it then…
[Rabbi Michael Abraham] So what is it then? Can you nullify it or can you fulfill it?
[Speaker C] You’re not obligated to fulfill it. But if you did fulfill it, you performed a commandment.
[Rabbi Michael Abraham] So that’s existential. That’s existential—that’s what I’m talking about now. At most that’s an existential commandment.
[Speaker B] Why isn’t that existential? What? Levirate marriage? Maybe, I don’t know…
[Rabbi Michael Abraham] Something existential.
[Speaker C] Maybe according to the definition—
[Speaker B] —this is—
[Rabbi Michael Abraham] —existential. Maybe I’ll comment on that later, because I’m not sure that’s existential. But according to your definition, it is existential. But I’m looking for something else. I’m looking for the opposite of existential. A commandment such that if I do it, there’s no value to it, but if I don’t do it, then that’s nullifying a positive commandment—so that’s a transgression. The opposite of existential—that’s what I’m asking. It sounds self-contradictory. But existential is like this too: if you did it, then there’s value to it; if you didn’t do it, nothing happened. So I’m saying, let’s now make the opposite—a reverse, dual commandment. Is there a commandment such that if you don’t do it, that’s nullifying a positive commandment, and if you do do it, nothing happened?
[Speaker B] It’s worth doing so as not to nullify a positive commandment.
[Rabbi Michael Abraham] Exactly. Not in order to gain a commandment, but in order not to fail through nullifying a positive commandment. So in the language of the Sages, that’s called a prohibition derived from a positive commandment. I’ll give you an example: “And the produce of the land shall be for you for eating.” Sabbatical produce—“for eating.” According to every view except Maimonides—and even in Maimonides, in my opinion, people don’t understand him correctly—there is no commandment to eat Sabbatical produce. There is no commandment in eating Sabbatical produce. Rather, the Sages derive: “for eating and not for commerce.” Meaning, if you use it, then it is only for eating. Not for commerce, not for other kinds of use. For eating—or ordinary use similar to eating—but not commerce, not other uses. So this means the following: if I ate Sabbatical produce, I have no commandment at all. But if I engaged in commerce with Sabbatical produce, then I committed a transgression. What transgression? Not a formal prohibition—a nullification of a positive commandment. It’s a transgression of nullifying a positive commandment, not a prohibition. Because I nullified the positive commandment of “for eating”—I didn’t eat, I did commerce. Oh, and if I had eaten it, would that not have been a commandment at all? Right. All the Torah says is that if you use it, then it should only be for eating. Other uses are forbidden—this is nullifying a positive commandment. So it’s called nullifying a positive commandment in the sense that it’s not a negative prohibition, but in fact you didn’t nullify a positive commandment such that had you done it, you would have had a commandment. There is no commandment to eat. It’s just that if instead of eating you engaged in commerce, then you have not a prohibition but a nullification of a positive commandment, a prohibition of nullifying a positive commandment. So a prohibition derived from a positive commandment is a third type of commandment—commandments that were given over to nullification but not given over to fulfillment. I gave examples: this one, “for eating and not for commerce,” and really how do you read the verse? The plain meaning of the verse is: “And the produce of the land shall be for you only for eating.” Add the word “only.” Then it means only for eating—that is, really it comes to exclude uses that are not “for eating.” The same thing with “to a non-Jew you may lend with interest.” A positive commandment of lending with interest to a non-Jew. According to most views among the medieval authorities (Rishonim), except for Maimonides, who has some puzzling things on this topic, according to most views among the medieval authorities (Rishonim) there is no positive commandment to lend with interest to a non-Jew. Rather, how do you read the verse? “Only to a non-Jew may you lend with interest.” Meaning: if you are already lending with interest, then only to a non-Jew may you do so; to a Jew it is forbidden. But that prohibition is not a negative prohibition, rather a nullification of a positive commandment. Which positive commandment am I nullifying? The positive commandment of “to a non-Jew you may lend with interest.” But lending with interest to a non-Jew is not a positive commandment such that if I fulfill it, I have a commandment.
[Speaker B] It’s just the nullification of “only to a non-Jew.”
[Rabbi Michael Abraham] Exactly. But it means “only to a non-Jew may you lend with interest,” that is, if you are already lending with interest, then only to a non-Jew. Okay. There are several other things like this. For example, Maimonides says there is a commandment to check the signs of purity of fish and animals, to check their signs. So what—when I do the checking to see whether they have fins and scales, did I fulfill a positive commandment? The accepted reasoning is that no. Only if I ate the fish and didn’t check, and it turns out that I ate something forbidden, then besides the prohibition of forbidden foods that I transgressed, I also nullified the positive commandment of checking the signs of purity. Again, this is a prohibition derived from a positive commandment. You can violate the prohibition, nullify a positive commandment, but doing the check is not fulfillment of a commandment. Okay, things like that. Good. So now we’ve also seen the third type. We have an obligatory commandment that can be fulfilled and can be nullified; we have an existential commandment that can be fulfilled and cannot be nullified; and we have a prohibition derived from a positive commandment that can be nullified and cannot be fulfilled. So far, three types of positive commandments. They are all positive commandments; a prohibition derived from a positive commandment is still a positive commandment. The fourth type is a positive commandment that can neither be fulfilled nor nullified. Neither is possible. Meaning, even if you did it, what commandment is there? Even if you did it, you have no positive commandment, and even if you didn’t do it, you have no nullification of a positive commandment. So then in what sense is it a commandment? It turns out there are such things. Surprisingly, there are.
[Speaker B] To remarry one’s divorcee? Why? Why? I don’t have to divorce my wife in order to really manage to—definitely not.
[Rabbi Michael Abraham] And if she is divorced, then maybe there is a commandment to take her back. So that’s a question whether there is a commandment or simply no prohibition, but if someone says there is a commandment, then that’s a real commandment—if she is already divorced.
[Speaker B] Say, like tzitzit, this is—
[Rabbi Michael Abraham] —conditional obligation, what I said earlier. Like tzitzit, yes. So what commandment is there that can neither be fulfilled nor nullified? There are two such commandments Maimonides talks about—maybe there are more—but Maimonides says this explicitly about two commandments. Positive commandment 95 and positive commandment 96. Positive commandment 95 is the commandment of annulment of vows. Meaning, when a husband annuls his wife’s vows on the day he hears them, Maimonides says: don’t think, when you hear from me that there is a commandment of annulment of vows, that there is some commandment to annul vows or some prohibition against not annulling the vow. If you want, annul it; if you don’t want, don’t annul it. It’s a definition that if he annulled the vow on the day he heard it, and it’s a matter of self-affliction—it doesn’t matter, there are various rules—then the vow is annulled. And if not, then not. Now there is no commandment to annul and no prohibition not to annul.
[Speaker C] So why does he count it as a commandment?
[Rabbi Michael Abraham] And that is a commandment, says Maimonides, even though it commands me to do nothing and forbids me nothing. This is a fourth type of positive commandment. It’s a positive commandment that can neither be fulfilled nor nullified. Even when you annulled it, you didn’t fulfill a commandment. And even if you annulled it—you’re obviously not obligated to annul it—but if you annulled a woman’s vow, you did not fulfill a commandment by that. You have the legal power to annul the vow; you did not fulfill a commandment.
[Speaker B] To betroth a woman—isn’t that that kind of commandment?
[Rabbi Michael Abraham] To betroth a woman—maybe that is that kind of commandment. That’s a dispute. The question is whether in Maimonides it sounds like betrothal is really a commandment. Although I’m not sure, because people aren’t aware that according to Maimonides there are also commandments of this type. And some infer that it’s a commandment because he counts the commandment to betroth a woman—but if I know that he also counts commandments of this type, then it’s no longer certain. Usually they connect this to the dispute between Maimonides and the Rosh; the Beit Yosef brings the dispute between Maimonides and the Rosh—maybe that’s how he understood it. I’m not sure that’s correct in Maimonides.
[Speaker D] “It is better to perform a commandment oneself than through an agent”—so why is there a commandment in that?
[Rabbi Michael Abraham] What, in betrothal? No—for example, the second example they bring there at the beginning of chapter two of tractate Kiddushin: “Like Rav Safra singeing the head, Rav Yosef singeing the head, Rava salting the shibuta fish.” So what is that—is that a commandment? Is there a positive commandment to cook for Sabbath? No—it’s a value, right? To do important things, so even a value—though it’s only a value and not a commandment—if you do it yourself, that is more praiseworthy than if someone else does it. I once had a whole discussion on this issue, really—what does “it is better to perform a commandment oneself than through an agent” mean, what does the term “commandment” mean there? Apparently it is not speaking about positive commandments in the formal sense. In any case, in Maimonides—so annulment of vows is one example. It’s a commandment that can neither be fulfilled nor nullified. Number 95. Number 96, the next one, is impurity from creeping creatures and things like that. Maimonides says the same thing there, at even greater length. He explains there that when you hear this from me, you should always know: there is no prohibition against becoming impure, and of course no commandment not to become impure and no commandment to become impure—nothing. It neither forbids you anything nor obligates you to do anything. It is neither a prohibition nor a commandment. It is a definition that whoever touches a creeping creature becomes impure. There are various practical consequences—if he is impure, then there are consequences, what happens with that—but there is no significance in this from the Torah’s perspective. Now, all the practical consequences of impurity are themselves counted as commandments. Meaning, you could have said: fine, the commandment is that whoever is impure may not enter the Temple, or may not eat terumah, or things like that. No, because those things are counted separately in the enumeration of the commandments. So there is a separate commandment that defines what is called impurity of a creeping creature, or impurity of a corpse, or things of that sort. What is this commandment? Again, a procedure. It is a definition, a legal definition, that says when you are impure and how you become purified, and that’s all.
[Speaker C] So what is the commandment in that?
[Rabbi Michael Abraham] There is no commandment in this. That’s what Maimonides said. This is counted within the framework of the positive commandments in Maimonides. It seems to me that the explanation for this is that for Maimonides, the term commandment, at least in the context of Sefer HaMitzvot, the term commandment is the halakhic translation of the word statute. Statute—Sefer HaMitzvot is the book of statutes. Now, in a law book there are also definitions. Right? A minor, for purposes of the law, is anyone who has not reached such-and-such an age. Just as an example. So what is this clause in the law book? It’s a law. But this law doesn’t tell me anything, it doesn’t command me to do anything and it doesn’t forbid me from doing anything; it only defines who is a minor with respect to other commandments, with respect to other laws. So here too it’s the same thing, except that for Maimonides Sefer HaMitzvot is the book of statutes. Now there are also laws that are definitional laws; they have halakhic implications, but they’re only definitions—there’s neither command nor prohibition here. Okay, so this is a fourth type of commandment: commandments that you can neither fail to fulfill nor nullify. Okay, so basically that’s the introduction.
[Speaker B] Positive, positive, prohibition.
[Rabbi Michael Abraham] A prohibition inferred from a positive command, and you could call these procedure-commandments or definitional commandments or something like that—that’s the fourth type. You asked about divorce. Divorce is interesting, because the Sefer HaChinukh writes at the end of the commandment of divorce: it is a commandment to divorce one’s wife with a bill of divorce, an important commandment. At the end of the commandment, the Sefer HaChinukh writes there that one who transgresses this and does not divorce his wife lawfully, as the Torah prescribes, has nullified this positive commandment and his punishment is great.
[Speaker C] Fine, in the situation under discussion.
[Rabbi Michael Abraham] So you’re saying that this is a real commandment. Right—when will that be?
[Speaker C] Well, when someone reaches that situation and he has decided to divorce his wife, now he goes ahead.
[Rabbi Michael Abraham] Okay, once he has decided to divorce her, right?
[Speaker C] Now he is commanded.
[Rabbi Michael Abraham] But then you understand that this is not a definition. Before, you said divorce is a definition.
[Speaker C] No, that was just an initial thought, just what occurred to me.
[Rabbi Michael Abraham] Because if it were a definition, then you couldn’t nullify a positive commandment, but here the Sefer HaChinukh says that he nullified this positive commandment—you can nullify this positive commandment. Now, how exactly one nullifies this positive commandment is an interesting question; I won’t get into it here. I also once wrote something about that; this Sefer HaChinukh is very interesting. In any case, divorce is not a definitional commandment, at least according to the Sefer HaChinukh.
[Speaker C] Now, not to be impure, and this, and to be holy and so on—even though Maimonides doesn’t count them as a commandment, “You shall be holy” and so forth—but there’s some impression that, true, it’s not a formally enumerated commandment, but the tendency is not to be exactly that sort of thing; in several places in the Torah he writes in general that that’s the direction, that there’s some place…
[Rabbi Michael Abraham] In the Torah, in several places, he writes that one should not…
[Speaker C] Not be a scoffer, it says somewhere, not to be…
[Rabbi Michael Abraham] Impure—even for ordinary Jews—just because it’s not a formally enumerated commandment.
[Speaker C] Yes, but there is still some idea of it, right? But okay.
[Rabbi Michael Abraham] In any case, we are…
[Speaker C] Talking here about a formal definition, but Jewish law is a tiny bit broader than just the formal halakhic commandment.
[Rabbi Michael Abraham] Halakhically, there is no prohibition.
[Speaker C] So then scoffing also isn’t a problem, right? What? Being scoffers and angry and arrogant—everything is fine?
[Rabbi Michael Abraham] Correct, not everything is fine, but halakhically there is no prohibition. Whether it’s fine or not fine is another discussion. There is also ethics, and all sorts of other things, but halakhically there is no prohibition.
[Speaker C] And with what claim will they come against someone who was arrogant all his life?
[Rabbi Michael Abraham] With the claim that he’s not okay, that he’s not a decent human being—not a halakhic claim. Maimonides writes in Borer, chapter 3 in Sanhedrin, in his commentary on the Mishnah, when they discuss there idlers who are disqualified from testimony, so from Maimonides there it sounds like there is a prohibition against being idle. That they transgress a prohibition; there are disqualifications because of transgression, like the disqualification of a wicked person—it’s a disqualification due to transgression—which is a huge novelty, not something explicit in the Talmud. And then the question comes up of what exactly he means. It could be that he only means it in a certain sense—that is, not really a formal halakhic prohibition, I don’t know. But plainly speaking, there is no halakhic prohibition in all these kinds of behavior. Maybe this is “You shall be holy,” what Nachmanides said, “a scoundrel with the Torah’s permission,” or things of that sort, but it is not a halakhic prohibition.
[Speaker B] A scoundrel, but with the Torah’s permission…
[Rabbi Michael Abraham] The Torah, yes, correct—and that is not a halakhic transgression. We once discussed the paradox of the scoundrel. Why doesn’t Nachmanides add “You shall be holy” to Maimonides’ positive commandments? Maimonides does not count “You shall be holy”; in the fourth root he writes there that it is a general commandment, therefore he does not count it. And Nachmanides, if you look in his additions to Maimonides’ Sefer HaMitzvot, he does not count “You shall be holy.” He cannot count it, because if he were to count it, then there would be a commandment of “You shall be holy,” and then it would turn out that someone who does not fulfill it is not a scoundrel with the Torah’s permission, but without the Torah’s permission, because he has nullified a positive commandment. But the Torah wants to define such a state as a scoundrel indeed with the Torah’s permission, meaning it does not want there to be a halakhic prohibition here; it wants us to understand on our own not to do this, not because of a halakhic command. So by definition it cannot enter the count of the commandments. Okay, so that’s the introduction to the types of commandments. Now why am I bringing this up? Because now I want to talk about the removal of leaven: “you shall remove leaven from your houses.” The question is, to which category should this commandment be assigned? Maimonides, positive commandment 156, first source in front of you: commandment 156 is that we were commanded to destroy leaven from our houses on the fourteenth day of Nisan, and this is the commandment of “you shall remove leaven.” And He, exalted be He, said: “But on the first day you shall remove leaven from your houses.” And the Sages also called it the commandment of destruction, meaning the destruction of leaven. And in tractate Sanhedrin in the Jerusalem Talmud they said: for leaven one is liable under both a positive commandment and a prohibition. A positive commandment regarding its destruction, as it is written: “You shall remove leaven from your houses”; a prohibition: “No leaven shall be found in your houses.” And its laws have already been explained, and so on. What is he saying? The removal of leaven contains both a positive commandment and a prohibition. The positive commandment is the destruction of leaven—“You shall remove leaven from your houses”—and the prohibition is that it not be seen and not be found. There is basically a duplication here between a positive commandment and a prohibition. The question is whether there is any difference at all between removing leaven and the prohibition that it not be seen and not be found—that there should not be leaven in my possession. After all, the whole point of removing leaven is to bring about the result that I won’t have leaven, so why do we need the positive commandment in addition to the prohibition? Now the truth is that in Maimonides’ own approach—and I said maybe this will be the topic we do after Passover because it will be an introduction to the next topic; this is a Passover lecture but it’ll also open the next topic—the relation between positive commandments and prohibitions in deontic logic, we’ll talk a bit about these matters, about post-negations, it touches a lot of issues. But I won’t get into that here. Maimonides in the sixth root says—I’ll just say this—Maimonides in the sixth root says that even if there is a prohibition and a positive commandment that are duplicative, that have the same content, we count both of them. Unlike two positive commandments or two prohibitions, which we do not count twice if they have the same content; there we count once. But if the duplication is between a prohibition and a positive commandment, then we count both. An interesting question why; we’ll talk about that. But that is the definition in Maimonides. So if that’s the case, then from Maimonides’ perspective at least, the fact that he counts a positive commandment here does not require us to look for some difference between it and “it shall not be seen and shall not be found.” It could be they have exactly the same content, but since this is written in the language of a positive commandment and that is written in the language of a prohibition, they are counted doubly. But Maimonides’ commentators too—and again, I think part of this is a bit of lack of awareness that with respect to Maimonides, very often his commentators do not know the rules well enough. Rabbi Rabinovitch writes this in Yad Peshutah, his commentary on Maimonides, that people often do pilpul on Maimonides without knowing the rules that he himself writes for how to read what he writes. So there are those who ask: then why really, what is the content of this positive commandment that he adds beyond the prohibition that it not be seen and not be found—when they don’t know that in the sixth root Maimonides writes that there need not be any difference in content. Even if there is no difference in content, a prohibition and a positive commandment are counted as two. Okay, so as I said earlier also regarding procedural commandments, there are those who want to say divorce or something like that in Maimonides, and they don’t know that Maimonides counts procedural commandments in general.
[Speaker C] When people ask that, it’s why he didn’t count it only technically—what principle stands behind it, right?
[Rabbi Michael Abraham] No, so there is no principle standing behind it—that’s exactly the point. We’ll talk about it when we get there, but there doesn’t need to be any difference in content. The mere fact that this is a positive commandment and that is a prohibition is enough to count both. Why? Interesting question, we’ll discuss it. But that’s what Maimonides writes. There is no difference in content. He writes that explicitly, because if there were a difference in content then it wouldn’t enter the whole question of duplication at all. It has to be—no, if there is a difference in content then of course they are counted as two, but for that you don’t need a root. Because there’s a difference, so obviously you have to count them both.
[Speaker B] If there’s an issue of human dignity, does that override the prohibition of not removing it? Because that would be passive omission, as it were.
[Rabbi Michael Abraham] So that’s the question whether human dignity overrides even a prohibition through passive omission, or only a positive commandment. That’s a question we may discuss when we talk about prohibitions and positive commandments; that’s the topic for after Passover. And in general we’ll talk about it. So on the basic level, the fact that Maimonides counts such a commandment does not mean we have to find a difference, but the medieval authorities (Rishonim) and later authorities (Acharonim) still discuss this issue. Look at Minchat Chinukh. Minchat Chinukh writes this in commandment 9, which is “you shall remove.” At first glance there is a doubt whether the positive commandment is that the leaven be removed, and if he has leaven, then besides the fact that he transgresses the prohibition that it not be seen and not be found, he also transgresses the positive commandment. And if he has no leaven, he does not transgress the prohibition, and he also fulfills the positive commandment through passive omission. As on the Sabbath and Jewish holidays there is a positive commandment of rest regarding the doing of labor, and if one transgressed and did labor, he transgresses both a positive commandment and a prohibition. And if he did no labor, then besides the fact that he did not transgress the prohibition, he also fulfilled the positive commandment of rest. And here too, the main commandment here is that he should not have leaven in his domain and that it be removed from his domain. Like the positive commandment of rest, which is not like a prohibition inferred from a positive commandment, where one does not fulfill the commandment simply by not doing the act; rather only if he transgresses the prohibition inferred from a positive commandment does he violate the positive commandment—sorry. But he does not fulfill the commandment. And in truth on the Sabbath it is not so, for the Torah wrote it in the language of an obligatory positive commandment; therefore he fulfills the positive commandment, and therefore the positive commandment on Sabbath and holiday is considered an independent positive commandment. Not so a prohibition inferred from a positive commandment; and see Sefer HaMitzvot of Maimonides and Nachmanides and you will understand. If so, here too, if he had leaven he transgresses a positive commandment and a prohibition, and if he has no leaven he also fulfills the commandment of “you shall remove,” even though it is through passive omission. What is he saying here? One might have understood the positive commandment of “you shall remove” as a prohibition inferred from a positive commandment. What does that mean? That if you have leaven in your possession, then not only have you transgressed the prohibition that it not be seen and not be found during Passover, but you have also nullified the positive commandment of “you shall remove.” But the removal itself contains no commandment. “You shall remove” only means to make sure you don’t have leaven. So this is basically a prohibition inferred from a positive commandment, right? It’s a commandment that you can only nullify but cannot actively fulfill—one of the third type we discussed before. So he says no. That’s not what it means. He means a commandment that one fulfills by omission, like resting on the Sabbath. Resting on the Sabbath is a commandment that I fulfill when I do not perform labor. But when I do not perform labor, I have fulfilled the commandment, not merely avoided a transgression. This is not a prohibition inferred from a positive commandment; it is a positive commandment. It’s just a positive commandment that is fulfilled by omission. Do you understand the difference between that and a prohibition inferred from a positive commandment? This is basically a positive commandment in the full sense. You are obligated to fulfill this commandment, and if you fulfilled it then you have a positive commandment to your credit. You fulfilled a commandment. What commandment? That you should not have leaven. But that is not the prohibition that it not be seen and not be found. This is the commandment to remove the leaven; only the commandment is not to perform an act of removal, but to be in a state in which you have no leaven. The act of removal is only the practical means of bringing about that you have no leaven. Okay? And that is not the same as a prohibition inferred from a positive commandment, because in a prohibition inferred from a positive commandment, if you have no leaven then you have not fulfilled the commandment. Only if you have leaven have you nullified the commandment. Because a prohibition inferred from a positive commandment can only be nullified, not fulfilled. Here he is speaking about a full positive commandment that can be fulfilled, except that it is fulfilled by omission. Fine? It’s a subtle difference, but that’s it.
[Speaker C] And if I don’t have leaven, and I bought leaven in order to destroy it, did I not fulfill a commandment? Once again—if I have no leaven, I went, I don’t know, and got hold of leaven in order to destroy it.
[Rabbi Michael Abraham] According to his definition, you would fulfill the commandment even without buying the leaven.
[Speaker C] I’m asking: if I have no leaven now, then I can’t fulfill it?
[Rabbi Michael Abraham] No, according to his view you can fulfill it.
[Speaker B] If…
[Rabbi Michael Abraham] If you have no leaven, you have fulfilled it.
[Speaker C] I fulfilled the positive commandment?
[Rabbi Michael Abraham] Yes, you fulfilled the positive commandment. That’s what he is claiming.
[Speaker C] And if I’m punctilious and I went to find myself some leaven in order to destroy it, is that not something more?
[Rabbi Michael Abraham] You fulfilled the commandment less, didn’t you?
[Speaker B] So that the blessing won’t be in vain, and what? No, why? Rabbi Natan mentioned this…
[Speaker C] But the blessing isn’t in vain in any case.
[Rabbi Michael Abraham] No, you…
[Speaker B] You recite the blessing over the destruction of leaven, and okay, you don’t…
[Speaker C] Find anything at all—so what am I blessing, the process? I’m not blessing the leaven.
[Rabbi Michael Abraham] And that’s what the ten crumbs of the Ari are really based on, on this point.
[Speaker C] But there’s no issue of having to do that? What? As if there’s no necessity to do it—then too there is no commandment of destruction.
[Rabbi Michael Abraham] No, I think even the blessing is simply not in vain.
[Speaker C] It is really for the search.
[Rabbi Michael Abraham] Yes, you search, and if you found, you found; if you didn’t find, you didn’t find. What can you do? You are not obligated to find something so that the blessing won’t be in vain. What do I know, it’s a long discussion.
[Speaker C] Right, with destruction. Yes. Search.
[Rabbi Michael Abraham] Not for the search. Yes. Why?
[Speaker B] Why—what’s the difference?
[Rabbi Michael Abraham] In a prohibition inferred from a positive commandment, you cannot fulfill the positive commandment. There is no fulfillment of a positive commandment there. For example, “to eat it and not for commerce.” You have no way to fulfill the positive commandment of “to eat it.” There is no way. If you eat, you have not fulfilled anything. Only if you didn’t do the eating but instead traded it did you transgress a prohibition—though of course that prohibition is not really a prohibition, only the nullification of a positive commandment. Now here, he claims that you can fulfill it. You have a commandment: if you have no leaven in the house, you have fulfilled the commandment of “you shall remove.” You receive reward for that. This is a positive commandment. Okay? So this is a very subtle distinction, because here we are speaking about fulfillment by omission. Very subtle. And therefore there are later authorities who do not distinguish between them at all; they immediately translate it into a prohibition inferred from a positive commandment. But here the Sefer HaChinukh notices that it is not the same thing. There can be a situation, says the Minchat Chinukh, where you fulfill this commandment by omission, but you still have fulfillment of a commandment; therefore this is a commandment with actual fulfillment. So this is a positive commandment that can be fulfilled by omission, like rest on the Sabbath. Rest on the Sabbath—you are obligated to rest on the Sabbath. If you rested on the Sabbath, that is certainly a positive commandment. But what is rest? Not doing labor. Meaning the fulfillment is fulfillment by omission. Okay.
[Speaker B] And is that the reason we recite a blessing over destroying leaven? What—that it’s a positive commandment and not a prohibition inferred from a positive commandment? That it is a commandment you actually fulfill?
[Rabbi Michael Abraham] You could bring proof from that—that this is a positive commandment—not everyone agrees, but you could bring proof from the fact that we recite a blessing, that this is a full positive commandment. Can one recite a blessing over a prohibition inferred from a positive commandment? I don’t know, maybe yes, maybe no.
[Speaker C] A parapet on a house: if I don’t have a roof that requires a parapet, and now I went and arranged to have such a house in which I can fulfill the commandment of a parapet—I made the positive commandment of building the house. And now I fulfill… no, suppose I just bought a new house now, I’m going to build a new house in order to fulfill in it the commandment of a parapet.
[Rabbi Michael Abraham] Fine?
[Speaker C] So now if I don’t have a house, then what am I… Or I bought a house that doesn’t have…
[Rabbi Michael Abraham] If you have no house, then you have not fulfilled the commandment of a parapet—that’s obvious. And if you have a house and it has a parapet, that is the question.
[Speaker C] Whether you fulfilled the commandment of a parapet, or did you fulfill it? Apparently according to this Minchat Chinukh, yes, I did fulfill it; I have a commandment and I fulfilled a positive commandment.
[Rabbi Michael Abraham] The definition in the case of a parapet is like the definition in the case of leaven; the Minchat Chinukh would have to say this everywhere. But yes, according to this definition, if we apply it to a parapet, then yes. Then you fulfilled it.
[Speaker C] Right. Fine. So now someone who comes to a house that has a parapet…
[Rabbi Michael Abraham] Has fulfilled the commandment of a parapet according to this definition.
[Speaker C] Someone who thus fulfilled the commandment and went and built himself a house in order to fulfill the same thing.
[Rabbi Michael Abraham] Also. If there would otherwise be bloodshed in your house, then you put a parapet so that there should not be bloodshed in your house. If there is no bloodshed, then fine—you fulfilled it. If that’s the definition, I’m saying—it depends how you understand the definition of the commandment of a parapet. So that is the distinction the Sefer HaChinukh makes here: when I say that the positive commandment is fulfilled by passive omission, the distinction is a finer one. It already looks much more like a prohibition inferred from a positive commandment, but it still isn’t the same thing. And according to this, says the Minchat Chinukh, one does not need to be meticulous to make sure he has leaven before Passover and destroy it, unlike the commandment of tzitzit, where every Jewish man is commanded to wear a four-cornered garment in order to fulfill the commandment through positive action—which is also an interesting assumption; I don’t agree with it, for example. It’s commonly accepted that in a time of divine anger they demand… You can simply not wear a four-cornered garment and not become obligated in tzitzit, and there is no halakhic impediment, no reason in the world, to obligate yourself in the commandment of tzitzit, contrary to what he writes here. Why should you? If you have a four-cornered garment, then you have to put tzitzit on it. What is written in the Talmud is that Elijah met—I don’t remember who it was there, Rabbi Yehoshua ben Levi, I don’t remember who was there—and he said that in a time of divine anger they punish someone who does not put on a four-cornered garment in order to exempt himself from the commandment of tzitzit. And from that all the decisors understand, down to our own day, that therefore we actually wear a four-cornered garment in order to become obligated in tzitzit. But on the face of it, that is strange, and I really do not agree with that. Tosafot already notes this. Tosafot says that in their time, when the ordinary garment was a four-cornered garment, then if you did not wear a four-cornered garment, that was to flee from the commandment of tzitzit. So about that—in a time of divine anger—they would call you to account. But we—the ordinary garment we wear is not a four-cornered garment. We put on a special four-cornered garment, unnecessary, in addition to the regular shirt, only in order to become obligated in tzitzit. Where did we ever hear that for such a thing people are punished in a time of divine anger? It’s completely absurd. In fact many decisors write this way; I don’t understand why they ignore that Tosafot. That Tosafot is obvious, it’s plain reasoning. I don’t know.
[Speaker C] Maybe the idea is that it’s like someone who doesn’t eat because of tzitzit, and all those commandments equivalent to all the others, that they expect of you…
[Rabbi Michael Abraham] But they don’t expect it. The Torah itself says only with a four-cornered garment.
[Speaker C] Right, but why is it equivalent to all the commandments? Because it has some element that shows something beyond. I don’t need to be commanded in order to do great things like Torah study, and like things you can’t nullify, like Torah study beyond the minimum required. So these are commandments, and that’s why they’re equivalent. In what sense are they equivalent to all the other commandments? In that they have value beyond what is strictly required. You see—we don’t need to be commanded, you can’t command a person to fulfill…
[Rabbi Michael Abraham] But no punishment for someone who runs away from it?
[Speaker C] Yes, but something like—you’re right—you are expected to be at that level. Here? Okay. You can’t command everything.
[Rabbi Michael Abraham] Could be.
[Speaker D] And maybe there’s another deficiency here: a garment that gives no wearing benefit is not Torah-level obligated. So if a person just puts tzitzit on himself, there’s no wearing benefit here.
[Rabbi Michael Abraham] Yes, like with forbidden mixtures.
[Speaker D] Could one say that because there is a commandment or custom here, then that is the benefit of wearing, or…
[Rabbi Michael Abraham] Doesn’t seem to me—why is that considered benefit of wearing? Commandments were not given for enjoyment. But “commandments were not given for enjoyment” is exactly the point: they do it for the commandment. A commandment is not enjoyment by definition. I don’t know. And according to this, indeed, one need not be meticulous—but here in any event the commandment is already fulfilled, and one need not search at all for leaven. That is what he says. But why doesn’t one have to search for leaven? Not because it is a prohibition inferred from a positive commandment. Even if it were a prohibition inferred from a positive commandment, one would still not need to be meticulous, right? What he says here is correct under both possibilities. Whether it is a prohibition inferred from a positive commandment—then obviously one need not be meticulous to ensure he has leaven and destroys it; the main thing is that I not have leaven so as not to transgress the prohibition. But even according to his definition, he says one need not be meticulous to have leaven. Why? Because you fulfill it by not having leaven. You do not need to perform an act of destruction; you fulfill it by not having leaven. Okay, so in fact in this second paragraph a third possibility already emerges for understanding the commandment. It is a full positive commandment to destroy the leaven—a full positive commandment that is fulfilled, not a full positive commandment, that’s also his definition—a full positive commandment fulfilled by action. You have to destroy leaven. And he rejects that possibility. But that possibility which he rejects is a third possibility. Above, in the previous paragraph, he distinguished between two possibilities. Now he rejects a third, which is neither of those two. Because what he says now is correct according to both possibilities raised in the previous paragraph. Whether it is a prohibition inferred from a positive commandment, or a positive commandment fulfilled by omission—in both cases you do not have to buy leaven in order to destroy it. How could there even be a thought that I need to buy leaven in order to destroy it? Only if I understand this as a commandment fulfilled by action, not by omission. I have to destroy leaven. If I have no leaven, buy some so that you can destroy it. That, he says, is not necessary. Fine—but here a third possibility is already emerging. And there is also a practical difference if he wants to destroy his leaven during Passover and someone else came and snatched it from him and destroyed it, for it is explained in Choshen Mishpat, chapter 382, that one who prevents his fellow from doing a commandment—for example, he snatched from him the opportunity to cover the blood—must pay him. But here, since there is no commandment upon him at all through positive action, but rather the commandment is fulfilled automatically, if so, he has not snatched anything from him at all. Because in any case in which it has been removed from the world, the owner of the leaven fulfills the positive commandment, for in every respect this is like the positive commandment of Sabbath and holiday rest. Fine. Practically speaking, if someone took my leaven and burned it, then practically speaking I have no leaven. So who fulfilled the commandment? I fulfilled the commandment. He did not snatch a commandment from me, so he does not have to pay me the rabbinic fine of ten gold coins. One who snatches a commandment from his fellow has a rabbinic fine to pay him ten gold coins. Up to here, that is the first possibility. Or perhaps—a second possibility—that there is a commandment upon him through positive action to remove the leaven, to destroy the leaven. And if he has no leaven, he has not fulfilled the positive commandment, like someone who has no four-cornered garment. Granted, there is no issue or he does not transgress; nevertheless he has not fulfilled the commandment. So here too, just as there, where he is commanded to acquire a tallit in order to fulfill the commandment of the blessed Name, here too he is commanded to seek out leaven before Passover and destroy it on the fourteenth in order to fulfill a positive commandment through positive action. So that is the second possibility he proposes. That is to say, a prohibition inferred from a positive commandment is not even on the table from his perspective. That he rejects in the first paragraph. It is obvious that this is a full positive commandment. The only question is what kind of full positive commandment. Is it a full positive commandment that is result-oriented—that in the end you should not have leaven, and I don’t care how you got there—or is it a full positive commandment of action, meaning to destroy the leaven? The practical difference is whether I need to buy leaven and make sure I have some to destroy. Another practical difference: if someone snatched it from me, does he owe me ten gold coins because he snatched my positive commandment? And according to this, if someone snatched the commandment from his hand, he is liable for the fine as written there in Choshen Mishpat. There is another practical difference: if we say that this commandment is through positive action, then if one removed leaven during Passover by eating it, he did not fulfill the commandment, because that would be a commandment fulfilled through a transgression. According to those who hold that a commandment fulfilled through a transgression is invalid by Torah law, he has not fulfilled it. Fine, this is explained in this section and elsewhere, doesn’t matter how many times. But if the commandment is through passive omission, then even if he ate it, in any case it is no longer in his possession. Then you cannot say this is a commandment fulfilled through a transgression. Practically speaking, he has no leaven, so you cannot say he did not fulfill the commandment, because practically speaking he doesn’t have it. The same kind of thing appears with dwelling in a sukkah; there’s a famous similar example. Another practical difference: if the commandment is through passive omission, one does not need intention to fulfill it, as we wrote in commandment 1, the commandments of unloading and loading. But if it is through positive action, then one needs intention according to those who hold that commandments require intention. Fine, so that’s another whole issue. I once told you that I was once in Bnei Brak and went into a barber shop. I was in Bnei Brak, and it was written there that someone getting a haircut should intend five commandments. It was a very Bnei Brak kind of barber shop. He should intend five commandments: “On that day you shall give him his wages,” and “do not let the sun set on it,” and “you shall not round off the corners of your heads,” and I don’t know, all sorts of things like that. Tremendous innovations—that you’re supposed to have intention regarding prohibitions. That I had never heard before. Someone told me that the Ari writes somewhere that there is some point in having intention regarding prohibitions; I don’t know.
[Speaker C] But “on that day you shall give him his wages” is corresponding to…
[Rabbi Michael Abraham] That, yes. But “do not let the sun set on it” and “you shall not round off the corners of your heads”—to actually intend that, that’s a prohibition. So here you see: even for a positive commandment you do not need intention if it is a positive commandment fulfilled through passive omission. If it is a positive commandment fulfilled by omission, says the Minchat Chinukh, even in that case you do not need intention; with prohibitions obviously you do not need intention. Do I have to intend every single moment in “you shall not steal” that I am not stealing from anyone? And every moment do I have to intend “you shall not steal,” otherwise I didn’t fulfill it, otherwise I transgressed the prohibition? Meaning, prohibitions do not require intention. Well, a marvelous response from Bnei Brak. Okay. In any case, the Minchat Chinukh here basically brings three possibilities; from his words one can learn three possibilities for understanding the commandment of “you shall remove,” and in that sense this is a very interesting commandment, because you can define it almost anywhere on the spectrum of positive commandments that I defined at the beginning. You can define it as a conditional positive commandment, right? If you have leaven, destroy it. Notice—that is none of the definitions he proposed here. A conditional positive commandment is not one of these definitions. This is a commandment on the action, yes, but it is conditioned on whether you have leaven or not. If not, then not. I still don’t have to take leaven…
[Speaker B] In order to destroy it, right?
[Rabbi Michael Abraham] Because it’s conditional positive. There is a possibility that it is fully positive, and therefore I need to buy leaven if I don’t have any, in order to destroy it. There is a possibility that it is a prohibition inferred from a positive commandment, in which case only if I have leaven have I transgressed the commandment, but if I have no leaven then nothing happened, though I also did not fulfill anything. And there is a possibility that it is a full positive commandment which is a result-commandment and not an action-commandment. A full positive commandment regarding the result. And what’s the practical difference? If I have no leaven, then I have fulfilled this positive commandment. Fine? If I have no leaven, I fulfilled a positive commandment—not only did I not transgress this commandment, I actually fulfilled it by not having leaven. Fine? Those are four possibilities for understanding the commandment. Of course, these are not the same four possibilities we discussed at the beginning; it’s three of those plus one more, conditional positive, which I did not define there as a category of its own, but here that is the fourth type. So there are four possibilities for understanding the commandment of “you shall remove”—almost all the possibilities of positive commandments except procedure. Now in practice, one can tie this to a dispute among Tannaim, because the Mishnah in Pesachim on 21a says as follows—I’m reading only the end of it: Rabbi Yehuda says, leaven can be destroyed only by burning, and the Sages say, one may even crumble it and scatter it to the wind or throw it into the sea. Right, that will come in a moment. So there is a dispute among Tannaim between Rabbi Yehuda and the Sages. On the face of it, if I understand like the Sages or if I understand like Rabbi Yehuda, who says only by burning, then clearly this is not a result-commandment. Because if it were a result-commandment, why would I care how I get to the state where I have no leaven? If he says specifically by burning, then clearly this is an action-commandment. One can still discuss whether this is a conditional action-commandment or a fully positive action-commandment—that is, whether one needs to buy leaven in order to burn it, or only if I have leaven I am specifically obligated to burn it and not do something else—but both those possibilities still exist in Rabbi Yehuda. Yet it is still clear that this is an action-commandment. Right? By contrast, according to the Sages, perhaps that itself is what they dispute. The Sages say: what do I care how you do it? The main thing is that in the end I not have leaven. And then, apparently, the understanding would be that the argument between Rabbi Yehuda and the Sages is over whether this is an action-commandment or a result-commandment.
[Speaker B] But maybe you could say it’s also about the result, and burning simply does not achieve the—that is, crumbling doesn’t achieve the result, because if you crumble it, it still remains in the world; burning achieves the result.
[Rabbi Michael Abraham] It’s in my possession. Leaven existing in the world is not interesting—there being leaven in the world is not my concern. I’m not prohibited from there being leaven in the world. As long as the leaven is not in my possession, why should I care?
[Speaker B] Then just declare it ownerless. But how does it leave your possession just because I broke it into small pieces? Yes, I broke it up, declared…
[Rabbi Michael Abraham] It ownerless and threw it into the sea. It depends whether we’re—I don’t want to get into this issue—it depends on whether I do this before Passover or during Passover. That’s a dispute among the medieval authorities: “you shall remove”—is it before Passover? Rashi and Rabbeinu Tam—whether “you shall remove” is before Passover or whether “you shall remove” is during Passover. Fine? For the moment let’s assume it’s before Passover for purposes of the discussion. And there is a possibility…
[Speaker C] That during Passover you can simply destroy it by eating it.
[Rabbi Michael Abraham] What? That’s what he says. During Passover that would be a commandment fulfilled through a transgression, but if you destroy it by eating it before Passover, then it isn’t a commandment fulfilled through a transgression. What’s the problem? You can eat it, and indeed there is no problem. It comes out that someone who eats a sufganiyah on Hanukkah has fulfilled a positive commandment. If I ate the sufganiyah on Hanukkah, then it won’t be in my possession on Passover.
[Speaker C] But thirty days—you’d have to eat it thirty days before.
[Rabbi Michael Abraham] Who said it’s thirty days?
[Speaker C] I’m saying like an old sukkah and…
[Rabbi Michael Abraham] That’s an interesting question, by the way—your comment is interesting. There are indeed people who want to argue that the destruction of leaven exists only within thirty days before the festival, because otherwise it really is strange. If I understand it as an action-commandment, and if I understand that this commandment is before Passover, because during Passover it is another issue—but according to the views that it is before Passover, when does it begin? Then someone who eats a sufganiyah on Hanukkah fulfills a positive commandment according to this definition. Interesting. Yes, right? Exactly. Or someone who eats the three Sabbath meals, who eats bread on Sabbaths all year round, fulfills the positive commandment of destroying leaven.
[Speaker D] Basically, this dispute of the Sages against Rabbi Yehuda comes out of a kal va-chomer that they bring in order to challenge the kal va-chomer. They say that he makes a kal va-chomer for burning, and then they say to him: if he didn’t find a way to burn it, should he then not destroy it? Then he’d nullify “you shall remove.” So doesn’t that show that they aren’t disputing this point?
[Rabbi Michael Abraham] So that is a leniency that leads to a stringency. Meaning, they are not disputing him essentially; they are only disputing him—or disputing only his derivation. According to your approach, that still wouldn’t be correct. We ourselves think in principle that this is a result-commandment. Because among the medieval and later authorities there are those who really understand it as a result-commandment. So Maimonides writes: how is leaven destroyed? He burns it, or crumbles it and scatters it to the wind, or throws it into the sea. Meaning he rules like the Sages. He burns it, or crumbles it and scatters it to the wind, or throws it into the sea. And if the leaven was hard and the water would not break it up, then he crumbles it first and afterward throws it into the sea. Because to throw it into the sea you don’t need to crumble it, but if it’s hard, then crumble it too. So in Maimonides himself it appears that he rules like the Sages, and then you can crumble it and scatter it to the wind; basically, in the end what you need is that it not remain in your possession. Later he writes: if he gave it to a non-Jew before the sixth hour, he need not destroy it, because it is not in his possession. And if he burned it before the sixth hour, then it is permitted to derive benefit from its coals during Passover. But if he burned it from the sixth hour onward, it is forbidden to derive benefit from it; therefore he may not fire an oven or stove with it, and may not bake or cook with it, and so on. And likewise its coals are forbidden for benefit, since he burned it after it had become forbidden for benefit. Fine? So if he burns it before Passover—and we discussed this—if he burns it before Passover, then he may derive benefit from the coals. If he burns it during Passover, he may not derive benefit from the coals. The question is how to understand this Maimonides; it’s not a simple question, and there are many disputes about it. Why? Because on the face of it there is a rule like this: there are two kinds of items forbidden for benefit. Leaven on Passover is something forbidden for benefit. There are two kinds of prohibitions of benefit: things that are buried and things that are burned. There are things forbidden for benefit that must be burned, and things forbidden for benefit that need not be burned. The ones that are “buried,” of course, there is no obligation to bury them; rather the meaning is that there is no obligation to burn them. And rabbinically, so that you do not come to derive benefit from them, they bury them. But there are no Torah-level “buried” items; there are things that are burned on a Torah level, and things that are not burned on a Torah level, and those are called “buried.” What is the difference between them? These are the next sources I brought, but I’ll do it briefly. The difference between them is first of all whether it is permitted to burn them. In the case of things that are to be burned, certainly yes—even one must burn them. But regarding the things that are “buried,” there is a rabbinic rule not to burn them. Why? Because with things that are to be burned, if you burned them, the ashes are permitted. The ashes are permitted because you fulfilled their prescribed commandment.
[Speaker B] Fine? The commandment is…
[Rabbi Michael Abraham] If you burn it, the commandment has been fulfilled, and you can derive benefit from the ashes. But with things that must be buried, if you burned them, you did not fulfill their commandment, because there is no commandment to burn them. So in that case the ashes are forbidden. And since the ashes are forbidden, the Sages prohibited burning them, so that people wouldn’t think that their proper commandment is by burning and then come to benefit from the ashes. Okay? So there are two differences between things that must be buried and things that must be burned: first, whether it is permitted or forbidden to burn them; second, whether the ashes are permitted or forbidden. Now according to this, it comes out as follows: Rabbi Yehuda, who says that leaven is something that must be burned, classifies it among the things that are burned. So first, of course it is permitted to burn it—he says that it must be burned. And second, the ashes may be used for benefit. According to the Rabbis, not only are you not required to burn it, but according to the Rabbis apparently it is forbidden to burn it. It is not among the things that are burned; it is among the things that are buried. And if you burned it, the ashes are forbidden for benefit. Right? Now Maimonides indeed writes: “And likewise its coals are forbidden for benefit, since he burned it after it had become forbidden for benefit.” Okay? So since he burned it—if he burned it before it became forbidden for benefit, then there’s no problem at all, because it was not yet subject to a prohibition of benefit. So obviously the ashes would not be forbidden, whether it belongs to the buried category or the burned category. If it is leaven already on Passover, when it is already forbidden for benefit, then since this leaven is not among the things that are burned—because we rule like the Sages—then even if you burned it, it remains forbidden for benefit. Okay? And then it comes out that what Maimonides writes here about coals refers also to ashes. Now some later authorities (Acharonim) want to argue that this refers specifically to coals, where the form of the original thing is still somewhat recognizable. But if it has turned into ashes, meaning it is really just dust, then it is permitted for benefit even according to Maimonides. Okay, what does this depend on? So there is a Tur—look on the second page, I’m going to skip some of these sources. The Tur writes as follows: “Rabbi Yehuda says: the destruction of leaven can only be by burning, and Rashi rules like him, and so too in Sefer HaMitzvot, the Smag. But the Geonim ruled like the Rabbis, who say one crumbles it and scatters it to the wind or throws it into the sea”—meaning, also crumble it when throwing it into the sea. “And he should not throw it there whole,” and so too Maimonides wrote—of course only if it is hard; if it crumbles on its own then that is fine. “And even Rabbi Yehuda only said specifically burning when it is not at the time of its destruction, but at the time of its destruction its elimination is by any means.” And Rashi explained “not at the time of its destruction”—fine, that is the dispute between Rashi and Rabbeinu Tam that I mentioned. “My master and father, the Rosh, wrote”—fine, let’s leave that; that is the debate between Rashi and Rabbeinu Tam. Last paragraph: “But whether one may derive benefit from its ashes after burning it depends on the dispute between Rabbi Yehuda and the Rabbis. According to Rabbi Yehuda, since it is by burning, it is permitted, for we maintain that all things that are burned—their ashes are permitted. And according to the Rabbis, it is forbidden, for all things that are buried—their ashes are forbidden.” He makes it depend on the dispute between Rabbi Yehuda and the Rabbis, whether the ashes are permitted or forbidden. “And Maimonides simply wrote: if he baked bread with it or cooked a dish with it, they are forbidden”—and he follows his own view, since he rules like the Rabbis. So he explains Maimonides: since he rules like the Rabbis, that this is not among the things that are burned, then if he burns it the ashes are forbidden for benefit. Meaning, what Maimonides said about coals does not mean only coals; it means ashes as well. In short, it is forbidden for benefit because its commandment was not fulfilled—the commandment is not burning. So on this the Magen Avraham writes: “Burning it—our version of the Talmud reads: ‘The Sages say: one may even crumble it,’ which certainly means burning is preferable, but crumbling is also sufficient.” What do you mean? What does “burning is preferable” mean? According to the Rabbis it is forbidden to burn. After all, it belongs to the things that must be buried, so it is forbidden to burn. It’s not that burning is ‘not preferable’—it is forbidden to burn. That is what the Bach writes. “But the version of the Rif and the Rosh is: ‘The Sages say: one crumbles it,’ etc.” That implies specifically crumbling. Not ‘even crumbling,’ but specifically crumbling—not burning. The question is whether burning is preferable and crumbling is merely also acceptable—‘even crumble it and scatter it to the wind’—or not ‘even crumble it and scatter it to the wind,’ but rather specifically crumble it and scatter it to the wind. The question is what the version in the Mishnah is. Rather, specifically one who crumbles and scatters it to the wind. “And so too it seems from the Tur, who wrote that according to the Rabbis it is in the category of things that must be buried, whose ashes are forbidden. And we learned at the end of Temurah that all things that must be buried may not be burned, lest one come to benefit from their ashes.” So in fact the Rif and the Rosh and the Tur are right—that according to the Rabbis it is specifically to be crumbled, not burned. But in the Shulchan Arukh it says that one may burn it. The Magen Avraham—yes, this is on the Shulchan Arukh, which says that one may burn it—asks: how can that be? Things that must be buried are not burned. “And this is astonishing regarding Maimonides, who ruled that its ashes are forbidden, and nevertheless ruled that it is permitted to burn it.” How can it be permitted to burn it? The Shulchan Arukh is taken from Maimonides, who says it is permitted to burn it and perhaps burning is even preferable. How can that be? Things that must be buried are forbidden to burn. “And at the end of the laws of disqualified sacrificial offerings he ruled that all things that must be buried may not be burned, because although he is stringent regarding their burning, he is thereby lenient regarding their ashes, since the ashes of things that must be buried are forbidden.” End quote. So why in the world is it permitted to burn this? “And one may say that this is what he means: one should not burn it in order to treat it like things that are burned, so as to benefit from its ashes. But if they wanted to burn it without benefiting from its ashes, it is permitted, and we do not decree lest he benefit from its ashes.” And so too the Meiri wrote. In short, these are strained explanations. That is the difficulty. And Rabbi Akiva Eiger is astonished by this Magen Avraham—really strongly astonished. Why? What does this have to do at all with things that must be buried and things that must be burned? Obviously, according to the Rabbis—Rabbi Yehuda’s opponents, who say one may even crumble it and scatter it to the wind—the commandment is not a commandment of result. This goes back to all the discussions we had at the beginning. The commandment is a commandment of action: “You shall eliminate leaven from your houses”—you have to eliminate the leaven. They just argued that this elimination need not specifically be done by burning; it can also be done by crumbling and scattering to the wind or throwing it into the sea. Okay? So that is not called “among the things that must be buried.” If I now burned the leaven, according to this definition—if I burned the leaven—did I fulfill its commandment?
[Speaker C] It’s not here anymore. What? It’s not here anymore, so it was fulfilled.
[Rabbi Michael Abraham] No—not only is it no longer here, but I performed an act of elimination, so its commandment was fulfilled. Its ashes are permitted. So they did not decree that it is forbidden to burn. When did they decree a prohibition on burning? When there is no commandment at all to eliminate it, and there is only a prohibition of benefit—do not eat, that’s all. There is no commandment to eliminate it, okay? So when there is a prohibition of benefit and you do not need to burn it, that is called among the things that must be buried. Rabbinically, they bury it so that you won’t come to derive benefit, but there is no commandment to eliminate it, in any form; there is simply no commandment to eliminate it. In that case it is forbidden to burn, and of course the ashes are also forbidden for benefit. But in the case of leaven there is a commandment to eliminate it, Rabbi Akiva Eiger says. There is just a dispute between the tannaim about how to eliminate it. According to Rabbi Yehuda, only by burning; according to the Rabbis, by any means. But still, the act is an act of commandment—an act of commandment of elimination. Burning too is a commanded form of elimination. So if I burned it, one can certainly say that its commandment was fulfilled, right? If I crumbled it and scattered it to the wind, its commandment was fulfilled. But even if I burned it, its commandment was fulfilled. So the ashes would be permitted, and therefore there is no prohibition against burning. So what does the Magen Avraham want? That is Rabbi Akiva Eiger’s question. The Magen Avraham understands that according to the Rabbis this belongs to the things that must be buried; there is no commandment at all to burn. There is only a prohibition of benefit with leaven. More than that, it seems from the Magen Avraham that there is not even a commandment of result that I not have leaven. There is no commandment at all. “You shall eliminate” is just a prohibition inferred from a positive commandment, but I have no commandment that I fulfilled merely by not having leaven. There is no positive commandment here at all. I am only forbidden to benefit from the leaven, so bury it so as not to derive benefit, rabbinically. But “you shall eliminate” is only adding a prohibition—that is, a positive formulation—upon someone who has leaven in his house. If it were an affirmative obligation fulfilled through non-occurrence, then its commandment would also have been fulfilled. When I have no leaven, then I have fulfilled the commandment. I have to make sure that I do not have leaven, right?
[Speaker D] But no obligation was placed on the object itself, something that has to be done with it. So what?
[Rabbi Michael Abraham] But I still fulfilled the commandment, so what’s the problem? Rabbi Chaim wants to say what you’re saying—we’ll see that in a moment. But on the face of it, what difference does that make? I would have understood from the Magen Avraham that no, there is no commandment here at all; it is a prohibition inferred from a positive commandment. That is also how he understands the Tur; the Tur too basically says this, because the Tur says that according to the Rabbis it is forbidden to derive benefit from the ashes. Right? That is what he says. The permission to benefit from the ashes depends on the dispute between Rabbi Yehuda and the Rabbis. So the Tur says as Jewish law that one who rules like the Rabbis is forbidden to benefit from the ashes. The simple implication of that is that it is also forbidden to burn it. Right? That is what comes out. And what does that mean? That the elimination is not the fulfillment of any commandment at all. There is no fulfillment of a commandment here. Apparently not even a commandment of result. So what is “you shall eliminate”? It is a prohibition inferred from a positive commandment: if you have leaven, then in addition to violating “it shall not be seen” and “it shall not be found,” you have also nullified the positive commandment of “you shall eliminate.” But there is no fulfillment at all of “you shall eliminate.” That is Rabbi Akiva Eiger’s claim, and in fact he remains with a difficulty on the Magen Avraham’s question—he remains with the difficulty. He says: what kind of question is this? It doesn’t even get off the ground. What is Rabbi Akiva Eiger assuming? Rabbi Akiva Eiger understands that the commandment is obviously a positive commandment. What kind of commandment? Here there is room to discuss, as you noted earlier. One could say that it is a positive commandment of action, and then when the Rabbis say you do not have to burn specifically, you can crumble it and scatter it to the wind, but you still have to perform an act of elimination. Fine? And still this can be one of two things: either it is a positive commandment of action that is conditional—a conditional positive commandment—if you have leaven, you must perform an act of elimination. Fine? But if you have no leaven, nothing has happened. And one could say that it is an unconditional positive commandment, meaning you would need to acquire leaven so that you have something to burn. But still it is a commandment in action. If it is a commandment in action, then if I burned it, its commandment was fulfilled, and therefore it is permitted to burn and the ashes are permitted. And that is what Rabbi Akiva Eiger is assuming. One could perhaps suggest a third possibility: that it is a positive commandment of result, not of action. And still, since there is a commandment that is fulfilled in the result, then if I burned the leaven and reached the desired result, its commandment was fulfilled. Fulfilled in the result. Since the commandment was fulfilled in the result, the ashes are permitted and therefore it is permitted to burn. That too could be said. It depends how you understand Rabbi Akiva Eiger. Simply speaking, he means one of the first two possibilities. I’m saying—that’s what you assumed—perhaps he also means the third possibility. In other words, even in the third possibility one could understand him that way. Rabbi Chaim actually goes with the third possibility, and in that way he resolves the Tur. And Rabbi Chaim says as follows: “He is not lashed for ‘it shall not be seen’ and ‘it shall not be found’ unless he acquired leaven on Passover or caused dough to become leavened in order to perform an act with it. But if he had leaven before Passover, and Passover came and he did not eliminate it but left it in his possession, even though he violated two prohibitions, he is not lashed by Torah law because he did no action with it.” Fine. So according to Maimonides one receives lashes for ‘it shall not be seen’ and ‘it shall not be found’—he is talking about the prohibition, not the positive commandment of ‘you shall eliminate.’ Regarding the prohibition of ‘it shall not be seen’ and ‘it shall not be found,’ Maimonides says that this is a prohibition for which one can receive lashes. Not everyone agrees on this point, but Maimonides claims one can—when? If one violated it through an action, meaning if one bought leaven and leaven came into one’s possession through an action, because for a prohibition without an action one does not receive lashes. “And they already asked: how does one receive lashes at all for the prohibition of ‘it shall not be seen’ and ‘it shall not be found’? For in tractate Pesachim it is explicitly explained that the prohibition of ‘it shall not be seen’ and ‘it shall not be found’ is a prohibition linked to the positive commandment of ‘you shall eliminate.’ And for a prohibition linked to a positive commandment one does not receive lashes.” And this is linked to the positive commandment of ‘you shall eliminate.’ “So it is difficult regarding Maimonides, who ruled that if one bought leaven on Passover, that is considered an action and he receives lashes.” And regarding this he says: “Now, Rabbi Akiva Eiger asked on the Tur, who wrote that according to Rabbi Yehuda, since leaven’s commandment is by burning, its ashes are permitted, like all things that are burned, whose ashes are permitted. But according to the Rabbis, since its elimination is by any means, its ashes are forbidden, like things that must be buried. Rabbi Akiva Eiger objected to this, because according to what Tosafot wrote—that the ashes of things that are burned are permitted and the ashes of things that are buried are forbidden, because with things that are burned there is a commandment in their burning, and therefore their commandment is fulfilled, whereas with things that are buried there is no commandment at all in their burial and they are only buried because of possible misuse, and therefore their commandment is not fulfilled—if so, with leaven too, even if its elimination is by any means, there is still the commandment of ‘you shall eliminate,’ so its ashes should have to be permitted according to everyone.” That is Rabbi Akiva Eiger’s difficulty that I brought earlier. There is a commandment here, and if you burned it, the commandment was fulfilled. Rabbi Chaim says: “And it seems that the commandment of ‘you shall eliminate,’ when its elimination may be by other means, is not comparable to a commandment of burning. For the commandment of ‘you shall eliminate’ by other forms of elimination is fundamentally that the owner should not have leaven. Whereas when its commandment is by burning, it is a commandment that takes effect upon the object of the leaven with the legal status of burning.” What is he saying? That according to Rabbi Yehuda, the commandment is a commandment of action—to burn. According to the Rabbis, the commandment is that he not have leaven. So maybe he means a prohibition inferred from a positive commandment? Or a positive commandment of result, right? As distinct from Rabbi Akiva Eiger’s understanding, that it is a positive commandment of action. And he assumes that if you understand it as a positive commandment of result, then you do not say what Rabbi Akiva Eiger says, that the ashes are permitted—that was your point. Fine, that is basically what he apparently wants to say. Later on you see that he does not mean a prohibition inferred from a positive commandment. “And regarding the permission based on ‘its commandment has been fulfilled,’ we require specifically that the commandment be fulfilled in the object, and then the object is permitted; but when the owner fulfilled a commandment incumbent upon him, that does not thereby permit the object.” In other words, he clearly understands that the owner is fulfilling a commandment; he does not view this as merely a prohibition inferred from a positive commandment. Like the Minchat Chinukh, he too does not view it as a prohibition inferred from a positive commandment. It is a genuine positive commandment—indeed, a positive commandment of result. I fulfill the commandment by not having leaven, but not by burning the leaven. Consequently, in such a case we do not say “its commandment has been fulfilled.” And therefore, says the Tur—and this is the Magen Avraham’s question—if I burned it, then according to the Rabbis the ashes really are forbidden. Why? But I fulfilled the commandment that I not have leaven. True, but the commandment was fulfilled in the result, and we say “its commandment has been fulfilled” only when the commandment is fulfilled in the act of burning. Okay? I think what he really means here is not the distinction between a commandment on the object and a commandment on the person, but the distinction between a commandment of result and a commandment of action. That is not the same thing. The commandment of result means that the person fulfilled a commandment by not having leaven. About such a case we do not say “its commandment has been fulfilled.” When the commandment is a commandment of action—to burn the leaven—then you say “its commandment has been fulfilled.” So the distinction is not really, although he writes here, between person and object. It seems to me that he does not mean a distinction between person and object, but between action and result. It could be that even a commandment of action is on the person, but if the commandment on the person is a commandment to burn—not a commandment that in the end he not have leaven—then one can say that its commandment has been fulfilled. Okay? He brings in object-status here too, so there is room to wonder what exactly he means.
[Speaker C] When he says “on the object,” doesn’t he mean the leaven itself—as though you are eliminating it?
[Rabbi Michael Abraham] He means the leaven, but the question is whether he means that there is a commandment on the leaven that it be burned, or whether he means that there is a commandment that the leaven end up burned. Meaning, that this is… so is it on the object? Yes, I can say that it is a commandment on the person, and still one can say that its commandment has been fulfilled, because in the end I did the commandment imposed on me. Okay? So in short, we’ve now seen the whole spectrum of definitions of how to define the positive commandment of ‘you shall eliminate,’ except perhaps for the model of a prohibition inferred from a positive commandment—which maybe the Tur says according to the Rabbis, when he says that there really is no commandment at all to burn, and maybe he even means—not like Rabbi Chaim—that there is no commandment at all. Rabbi Chaim explains the Tur as possibly meaning that it is a commandment of result. But if we do not go with Rabbi Chaim, and instead say that even in a commandment of result, still, once its commandment has been fulfilled, why shouldn’t the ashes be permitted? Then why does the Tur say the ashes are forbidden? Because it is a prohibition inferred from a positive commandment. And then that is the most extreme definition: there is no positive commandment of ‘you shall eliminate’ at all. It is only a prohibition—if I have leaven, then besides ‘it shall not be seen’ and ‘it shall not be found,’ I also have the prohibition of nullifying the positive commandment of ‘you shall eliminate.’