Lesson 14: Vayeshev

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

---

With God’s help

Concepts

• An obligatory mitzvah (commandment) and an existential mitzvah.
• One who is not commanded yet acts.
• A halakhic object of mitzvah-fulfillment.
• A mitzvah-act that creates legal status.

Abstract

In this essay we begin with an interpretation offered by later halakhic authorities regarding the episode of Judah and Tamar, and arrive at the conclusion that the yibbum (levirate marriage) of a minor is a legally meaningful act, even though a minor is not obligated in mitzvot. Moreover, the act is a permitted one, even though in the absence of the mitzvah of yibbum the incest prohibition of a brother’s wife ought to arise. From this we proceed to several additional examples of mitzvah-fulfillment in modes that are not obligatory.

A first, familiar example is that of existential mitzvot, that is, commandments whose performance counts as mitzvah-fulfillment, though there is no obligation to perform them and no prohibition in omitting them. We then present halakhic positions that regard one who is not commanded yet acts as fulfilling a mitzvah in some sense. These positions immediately raise the question of the relationship between existential mitzvot and one who is not commanded yet acts. We propose several halakhic distinctions between these two categories.

What emerges from our discussion is that the term “mitzvah” has a far broader meaning than we usually assign to it. It is not only an obligation imposed upon us by the Torah, but also a type of action called the service of God, even when it does not constitute fulfillment of a halakhic obligation, and perhaps even when there is no command at all.

This point will, God willing, recur in future essays as well.

The rules and principles that emerge from the essay

• Concerning yibbum by a minor
• A look at types of mitzvot and modes of fulfillment

Introduction

In our Torah portion, the episode of Judah and Tamar is presented. Tamar marries Er, Judah’s son, and when he dies she marries his brother Onan. After he too dies, she waits for Shelah to grow up (Genesis 38:11):

Judah said to Tamar his daughter-in-law, “Remain a widow in your father’s house until Shelah my son grows up,” for he thought, “Lest he too die like his brothers.” So Tamar went and lived in her father’s house.

The reasoning in this verse is unclear. If Judah fears that she is a woman considered dangerous to her husbands because her previous husbands died (see Babylonian Talmud, Yevamot 64b; Maimonides, Mishneh Torah, Laws of Forbidden Intercourse 21:31; and Shulhan Arukh, Even Ha-Ezer 9:1), then he ought to tell her not to wait for Shelah at all. Beyond that, if this really was his concern, how is it supposed to be solved by waiting until Shelah is older? Indeed, in the end she never marries Shelah, even after he has grown up.

For these reasons, Rashi interprets the verse as follows:

“For he said”—that is, he was putting her off with a pretext, for he had no intention of marrying her to him.

But Ramban, in his commentary here, raises several difficulties with Rashi’s interpretation. To these one may add the fact that later Judah admits that she was more righteous than he—yet even then he does not give her to Shelah. Ramban therefore concludes:

What seems correct to me is that Shelah was fit for yibbum, but his father did not want him to perform yibbum while he was still a youth, lest he sin with her as his brothers did, who died in their youth. They were boys; neither of them had reached twelve years. When he grew and would listen to his father’s discipline, then he would give her to him as a wife. But when she had waited many days and saw that Shelah had grown in her eyes, while to his father he was still a boy, for he was not yet ten years old and Judah meant to wait longer, Tamar hastened—out of her great desire to bear offspring from the holy seed—and did this deed.

In Hidushei Ha-Griz on the Torah, Rabbi Yitzhak Ze’ev Soloveitchik proposes a third direction for explaining Judah’s words to Tamar. On the one hand, he follows Rashi in holding that Tamar had the status of a woman dangerous to her husbands. On the other hand, he follows Ramban in maintaining that Judah seriously intended to marry her to Shelah. The Griz explains that Tamar indeed had such a dangerous presumption, and that it is forbidden to marry such a woman because of the danger involved. However, where there is a mitzvah of yibbum, this presumption does not apply, because the mitzvah protects the levir from danger. But when the levir is a minor, he does not fulfill a mitzvah, and therefore he is not shielded from her dangerous status. For that reason Judah told Tamar to wait until Shelah grew up.

We find something like this explanation as well in Noda Bi-Yehudah, first edition, Even Ha-Ezer, no. 10:

Regarding the substance of the matter about which you were uncertain—whether a levir is subject to a prohibition because of a woman dangerous to her husbands—and you cited Maimonides: know that long ago I said, on the basis of reason, “One who keeps a commandment will know no evil matter”… In my view this is straightforward, for in matters of prohibition we follow the majority, whereas in matters of danger we do not follow the majority… According to Rabbi Meir, who is concerned even for a minority possibility, a minor would be forbidden to perform yibbum lest he turn out to be a eunuch. But we rule like the Rabbis, that we follow the majority. In Tamar’s case, where Shelah was a minor, both prohibition and danger came together, and the one depended on the other: if he is a eunuch, there is no mitzvah of yibbum, and there is the prohibition of a brother’s wife, along with the danger posed by a woman whose husbands die; but if he is not a eunuch, there is a mitzvah of yibbum, and therefore there is no danger. Judah therefore ruled in accordance with the Torah, that she had to wait until Shelah grew up so that it would become known that he was not a eunuch. For although with respect to prohibition we follow the majority, still, concerning “lest he die”—in matters of danger we are concerned even for the minority. It follows that he was not putting her off with a pretext; rather, he ruled in accordance with Torah law…

He too innovates that in the case of a levir one need not fear the danger posed by such a woman, and he too explains Judah’s words to Tamar in this way. However, he explains the need to wait until Shelah grew up differently.¹

A. Yibbum by a Minor

Introduction

The institution of yibbum contains an internal halakhic contradiction. On the one hand, a brother’s wife is forbidden to every Jew as an incestuous relation. On the other hand, when a man dies childless, his brother is obligated to perform yibbum with the widow. In other words, this mitzvah is not merely an ordinary legal command; it also includes permission to set aside a severe prohibition—the incest prohibition of a brother’s wife. When there is no mitzvah of yibbum, the brother is forbidden to marry the widow, because she is prohibited to him as his brother’s wife.

The status of a minor levir

As is well known, biological maturity does not coincide with halakhic maturity. According to halakha (Jewish law), a boy of nine is considered physically capable of intercourse, yet he is still not subject to the obligation of mitzvot. What is the law when such a boy’s brother dies, and the widow—who may herself be fully adult—stands before him for yibbum? Biologically he can have intercourse with her; halakhically he is not yet subject to the mitzvah of yibbum. One would therefore expect the prohibition of a brother’s wife to apply to both of them. Yet the Mishnah in Babylonian Talmud, Yevamot 111b, says:

If a minor levir had intercourse with a minor widow awaiting yibbum, they are to grow up together. If he had intercourse with an adult widow awaiting yibbum, she remains with him until he grows up.

So although the minor is not under a mitzvah to perform yibbum, his intercourse is not considered forbidden intercourse—for from the standpoint of the adult widow, this ought to have been a fully prohibited act. This is a kind of incomplete yibbum.

Maimonides rules likewise (Mishneh Torah, Laws of Levirate Marriage and Halitzah 1:16; see also Shulhan Arukh, Even Ha-Ezer 167:2):

We have already explained in the laws of marriage that the intercourse of a boy of nine years and one day is considered intercourse, and this is a law transmitted by tradition. Therefore, if a minor levir had intercourse with his widow, if he was nine years and one day old, he may keep her. But he may not perform halitzah until he grows up and is examined, for the word “man” is written in the passage regarding halitzah (Deuteronomy 25:7-9). If he was younger than this, his intercourse is not considered intercourse. And the intercourse of a nine-year-old does not create a complete legal bond; therefore the widow is not permitted to marry an outsider until he has intercourse with her again after he grows up, or until she undergoes halitzah, as will be explained.

It should be noted that this minor cannot perform halitzah, since halitzah may be done only by an adult. By contrast, he can perform yibbum, but it is not a “complete legal acquisition.” How are we to understand such an act? Is there mitzvah-fulfillment here? If not, why is there no prohibition?

Yibbum by a minor: the approach of Tosafot

The Griz, whom we mentioned above, writes that this is an act of yibbum but not the mitzvah of yibbum—and therefore the minor levir is not protected from the dangers associated with a woman whose husbands die. The source for the Griz’s statement is Tosafot, s.v. “Tegalei Milta,” on Babylonian Talmud, Yevamot 35b. The Mishnah there discusses the law of one who performed yibbum with a woman who later turned out to be pregnant:

One who marries his brother’s widow and she is found to be pregnant and gives birth: if the child is viable, he must send her away, and an offering is required; but if the child is not viable, he may keep her.

That is, if it turns out that she has a son, then she was never obligated in yibbum, and therefore he unwittingly violated the prohibition of a brother’s wife, for which he must bring an offering. The Gemara there cites a dispute between Rabbi Yohanan and Resh Lakish as to whether intercourse with a pregnant woman counts as intercourse or not, and Resh Lakish holds that it does not.

Maimonides rules in accordance with Resh Lakish, and summarizes the law as follows (Mishneh Torah, Laws of Levirate Marriage and Halitzah 1:22):

If one married his brother’s widow and she was found to be pregnant, they are separated and we wait. If she miscarries, he may return and keep her. If she gives birth, even if the child dies on the day it was born, he divorces her with a bill of divorce and performs halitzah with her; afterward she is permitted to others. But if the child survives for thirty days after birth, it is deemed a viable child, and she does not require a bill of divorce from him, because she is an incestuous relation to him.

Tosafot there ask against Resh Lakish:

One may ask: according to Resh Lakish, if one married his pregnant yevamah and she miscarried, why is he exempt from an offering? Since intercourse with a pregnant woman is not considered intercourse, it follows that this was intercourse with his brother’s wife outside the place of mitzvah.

That is, if intercourse with a pregnant woman is not considered an act of yibbum, then it becomes clear that when he had intercourse with her he did not fulfill the mitzvah of yibbum. If so, the act should constitute the prohibited incest of a brother’s wife—albeit unintentionally—and why then is he exempt from an offering? Tosafot answer:

The Ri says that nevertheless he incurs no liability, for this is comparable to a minor who had intercourse with his adult yevamah, regarding whom it is said later that she remains with him until he grows up.

Thus Tosafot compare this case to that of a minor levir who had intercourse with his yevamah. Although he did not fulfill a mitzvah, he nevertheless committed no transgression, and they continue living together. In both these cases, there is an act that is not a fulfillment of the mitzvah of yibbum, yet the prohibition of a brother’s wife does not apply.

Yibbum by a minor: the approach of Rashi

What these two cases apparently share is that in both there exists a levirate bond, and therefore, even though the act does not constitute the mitzvah of yibbum, the very existence of that bond permits what would otherwise be the prohibition of a brother’s wife. However, Rashi’s view in Babylonian Talmud, Yevamot 52b (see Tosafot there, s.v. “O Dilma,” who disagree with him) is that the levirate bond by itself does not permit the prohibition of a brother’s wife. According to Rashi, only fulfillment of the mitzvah permits the prohibition, not the mere existence of the levirate bond. If so, we seem forced to conclude that the very fact that the minor levir does not violate the prohibition of a brother’s wife means that he does fulfill the mitzvah of yibbum. Without the mitzvah, the prohibition could not have been set aside.²

As is well known, a minor is not obligated in mitzvot. The duty to fulfill mitzvot applies only to an adult Jew. How can it be that, according to Rashi, a minor levir fulfills the mitzvah of yibbum through intercourse, when he is not even a subject of mitzvah-obligation at all? To answer this, we must survey several kinds of mitzvah-fulfillment.

Obligatory and existential mitzvot

Tosafot Ri’ba, in his commentary to the portion of Bo, cited in Kovetz Shiurim, Kiddushin no. 143, writes:

There are things for which one receives reward when one performs them, yet does not receive punishment when one does not perform them. For example, matzah after the first night is optional. Even so, Scripture wrote a positive command concerning eating it during the six remaining days, as it says, “For seven days you shall eat unleavened bread.” This is what the Mekhilta, a halakhic midrash, explained: because it says “days”—that is, if one ate matzah all seven days, he fulfilled “For seven days you shall eat unleavened bread.” And whence the nights? That is, if he ate matzah on all seven nights, from where do we know that he fulfilled the verse and receives reward? The verse therefore says: “until the twenty-first day.”

Ordinary positive commandments are obligatory mitzvot, meaning that we are required to perform them. For example, putting on tefillin is obligatory for every Jew on every weekday. One who put on tefillin fulfilled a positive commandment, and one who did not put them on neglected a positive commandment. But it emerges that beyond the fulfillment of commandments in which we are obligated, there are additional kinds of mitzvot and additional kinds of fulfillment.

First, there are existential mitzvot, as distinct from obligatory mitzvot. For example, the mitzvah of Torah study, beyond reciting the morning and evening Shema, is according to at least some medieval authorities not obligatory at all (see, for example, the commentary of the Rosh to Babylonian Talmud, Nedarim 8a). This does not mean that one who studies Torah beyond the minimum obligation is not fulfilling a mitzvah. He is indeed fulfilling a mitzvah, but there is no obligation to do so. Put differently: if he studied, he certainly fulfilled a mitzvah; if he did not, he committed no formal transgression.³ The same is true of charity beyond the required minimum amount. Perhaps one might include voluntary prayers in this category as well. These mitzvot are not obligations, and their performance depends on the individual’s decision to undertake them.

It should be noted that we do not know of commandments counted among the 613 that are wholly existential from start to finish. The two examples we gave—Torah study and charity—are obligatory up to a minimum threshold, beyond which they have an existential component. One might have thought of donating to the Temple treasury or making a valuation vow as an existential mitzvah. But from Maimonides’ formulation it seems that he understands those commandments as obligations imposed on the court and on the individual to fulfill the undertakings he has assumed, not that the person making the vow thereby fulfilled a mitzvah.⁴

In the next section we shall see situations that look like existential mitzvot, but whose basis lies not in the definition of the mitzvah itself, but in the status of the person commanded.

A discretionary act and mitzvah-fulfillment by one who is not commanded

As noted, the distinction between obligatory and existential mitzvot still does not exhaust all the possibilities. How should we understand a merely discretionary act in relation to an existential mitzvah? Take, for example, character refinement, according to those views that deny there is a positive commandment to engage in it.⁵ Is improving one trait, according to those views for which this is not a halakhic obligation, an existential mitzvah? Certainly not. There is no mitzvah-fulfillment here at all. It is a positive and important act, but from the formal halakhic standpoint it is not a mitzvah-act.

And what about women who perform positive time-bound commandments? According to most medieval authorities they may perform them, and this has the significance of mitzvah-fulfillment by one who is not commanded yet acts. As for reciting a blessing over such commandments, the medieval authorities and later decisors disagree, and this is not the place to elaborate. Is this an existential mitzvah? Apparently not. Women are not commanded in these commandments at all, and therefore even when they perform them there is no full-fledged fulfillment of a biblical mitzvah. This is not the same as the case of Torah study for men in its existential component—that is, beyond the minimum of morning and evening Shema. But is it mere volunteering? Is it nothing more than a discretionary act, like character refinement? Is there, from the halakhic point of view, any significance at all to such an act? It seems that this is not an ordinary discretionary act. Certainly according to those decisors who allow women to recite a blessing over these commandments, it is difficult to classify them as mere discretionary activity.

For example, Raavad, at the beginning of his commentary to Torat Kohanim, discusses the dispute over whether women may perform semikhah voluntarily. Women are not commanded in the laying on of hands upon offerings, and the Gemara disputes whether they may nonetheless perform full semikhah—a practice that involves a prohibition of using consecrated animals—or not. If so, the view that permits women to place their hands upon the offering even though they are not commanded in semikhah is also permitting the relevant prohibition in the realm of consecrated property.

From this, one of the opinions cited by Raavad there concludes that women who perform positive time-bound commandments may do so exactly as men do, even where the act involves a prohibition. For example, women who place tzitzit on their garments may do so even in a manner that involves the prohibition of mixing wool and linen—for example, woolen fringes on a linen garment. Although they are not obligated in the mitzvah of tzitzit, and walking about in such a garment would ordinarily involve a prohibition, women may nevertheless wear it in that way.

So the fulfillment of a mitzvah by one who is not commanded yet acts is not a mere discretionary act. Presumably one would not permit mixed wool and linen for the sake of character refinement, or some other good deed. On the other hand, as we noted, the fact that women are not commanded at all in positive time-bound commandments must still have legal significance. Therefore fulfilling such commandments as one who is not commanded cannot be identical to the concept of an existential mitzvah. An existential mitzvah is a mitzvah in every respect, and there are subjects to whom it is addressed, even if by its nature it does not require action in every instance. Positive time-bound commandments, by contrast, do not address women at all. Women are not commanded in them, and therefore it is difficult to regard their acts as full mitzvah-fulfillment.

Yibbum by a minor

In light of everything said so far, a natural definition emerges for yibbum performed by a minor: the minor does not perform yibbum as an existential mitzvah, because yibbum is an obligatory mitzvah, unless he performs halitzah. On the other hand, this is not a discretionary act, because it permits him what would otherwise be the prohibition of a brother’s wife. The conclusion is that yibbum by a minor is a case of one who is not commanded yet acts. Just as women can perform positive time-bound commandments even when those acts involve a prohibition, so too the minor performs the mitzvah of yibbum, which likewise involves a prohibition. As the decisors write, this yibbum does not fully release the widow—for example, if he dies while still a minor, she is not thereby permitted to the outside world; see Shulhan Arukh, Even Ha-Ezer 164—because it is not a complete act of yibbum. Yet it is sufficient to permit, as between the minor and the widow, what would otherwise be the prohibition of a brother’s wife, even according to Rashi, who holds that the levirate bond alone is not enough for that purpose.

“One who is not commanded yet acts” versus an existential mitzvah

Since we have concluded that the fulfillment of a mitzvah by a minor is a case of fulfillment by one who is not commanded yet acts, like a woman who performs a commandment in which she is not commanded, we must return and ask: how does this differ from an existential mitzvah? In both cases there is mitzvah-fulfillment, and in both cases there is no obligation to perform it. Yet, as we have noted, it is not plausible that these are simply the same thing. In the case of women one might perhaps say that the obligation imposed on men is, in their case, reduced to an optional form. But in the case of yibbum by a minor this is less plausible: yibbum is an obligatory mitzvah, not an existential one, and usually there is no other brother who can release the widow to the general public. Intuitively, too, there seems to be a difference between an existential mitzvah, which is an enumerated commandment, and the act of one who is not commanded yet acts, which lies outside the count of commandments altogether. Existential mitzvot can be included in the enumeration of commandments; the acts of one who is not commanded surely do not belong there.

Before attempting to define this distinction more precisely, and also to clarify the concept of “mitzvah” itself, let us consider several examples close to this issue.

Prayer as a halakhic object

In our essay on the portion of Toledot, we noted that even according to Ramban, who holds that all prayer is rabbinic except prayer in a time of distress, it is still possible that when the Patriarchs prayed, their prayer possessed the status of a halakhic object called prayer. What does this mean? The concept was introduced by Rabbi Hayyim of Brisk in his work on Maimonides, on Mishneh Torah, Laws of Prayer 10:6. There he writes that a voluntary prayer and an obligatory prayer do not combine with one another, because they are different kinds of thing. A voluntary prayer is not obligatory, but it still bears the name of prayer. It is not merely a subjective or psychological act; it is an act of halakhic significance. It is a kind of spiritual reality called “mitzvah”—not in the sense of an obligation imposed upon us, but in the sense of an abstract normative entity: prayer as a halakhic object.

One can extend these concepts to the Patriarchs’ performance of mitzvot in general. All the mitzvot they performed can be interpreted as halakhic objects of mitzvah-acts, even though before Sinai they were not commanded in mitzvot as obligations.

Torah study as a halakhic object

Something similar appears in later authorities with respect to Torah study. In practice, Shulhan Arukh rules that women recite the blessing over Torah study, even though they are not commanded in the mitzvah of Torah study. There are several proofs that this blessing is not an ordinary blessing over commandments, but we cannot discuss them here. On the point itself, a number of later authorities wrote that these blessings are said over the halakhic object of Torah study.⁶ Women are indeed not obligated in the mitzvah of Torah study, but they do belong to the performance of the act called Torah study. What does “an act of Torah study” mean? At first glance, it would simply mean the act of studying Torah. But it is generally agreed that a non-Jew is not within the halakhic category of Torah study, even though in actual fact he can certainly study Torah. What, then, is missing in his case as compared with women? What do women who study Torah possess that a non-Jew who studies Torah does not? After all, both are cases of one who is not commanded yet acts.

Apparently women belong to the halakhic-spiritual act called Torah study, whereas non-Jews do not. Once again we encounter the concept of a halakhic object of mitzvah, as distinct from an act in its ordinary everyday sense. This is an act of halakhic significance, even though it is not fulfillment of a halakhic obligation, and apparently not even an existential mitzvah. Torah study is presumably not defined as an existential mitzvah for women, since even for men who are obligated in it, it has an existential dimension.

Mitzvah-fulfillment while exempt: a minor who came of age between the two Passovers

The Tannaim disputed whether the second Passover is merely a make-up offering for one who did not observe the first Passover, or rather an independent sacrifice in its own right, incumbent only upon one who did not observe the first. Maimonides rules in Mishneh Torah, Laws of the Paschal Offering 5:1, that the second Passover is a festival in its own right. Yet there, in 5:7, he writes:

A convert who converted between the first Passover and the second Passover, and likewise a minor who came of age between the two Passovers, are obligated to observe the second Passover. But if the Paschal offering was slaughtered on his behalf at the first Passover, he is exempt.

Two assumptions are present here. First, a minor who did not observe the first Passover is obligated in the second. This can perhaps be understood in light of the fact that the second Passover is not a make-up for the first but an independent obligation. At the end of the day, the minor certainly did not observe the first Passover, even if he was not obligated in it, and therefore he is obligated in the second. Precisely against that backdrop, however, the end of Maimonides’ statement seems puzzling: if the first Paschal offering was slaughtered on his behalf, he is exempt from the second Passover. How are we to understand this law? Of what use is the fact that the first offering was slaughtered on his behalf, if at that time he was not yet obligated because he was a minor?

Rabbi Hayyim of Brisk, in his novellae on this halakhah, cites Babylonian Talmud, Rosh Hashanah 28a, where it is explained that if someone performed a mitzvah at a time when he was exempt from it, he has not discharged his later obligation. For example, if an insane person ate matzah and then recovered, he is obligated to eat matzah again, for the earlier eating of matzah is not considered mitzvah-fulfillment. Turei Even there adds that if a slave—who is exempt from eating matzah, like a woman—nevertheless ate matzah and was afterward emancipated, he must eat matzah again. Performing a mitzvah while exempt does not discharge a later obligation.

It is obvious that a minor too, if he ate matzah and then came of age, must eat matzah again. His earlier eating is not considered fulfillment of the mitzvah of eating matzah. The commentators on Maimonides therefore ask (see Kesef Mishneh ad loc., and others): how can a minor on whose behalf the Paschal offering was slaughtered be exempt from the second Passover?

Rabbi Hayyim explains that there is a difference between action-commandments and commandments whose performance creates some legal status or result. In action-commandments, such as eating matzah, when a minor performs them he has done nothing from the halakhic standpoint. By contrast, in commandments such as the bringing of the Paschal offering, although the minor did not fulfill the mitzvah of bringing the offering, in reality a Paschal offering was brought on his behalf. To be exempt from the second Passover, it is enough that the offering was brought on his behalf; it is not necessary that he himself have fulfilled the mitzvah of offering it. Therefore, if the first Passover sacrifice was slaughtered on behalf of a minor, he is exempt from the second Passover.⁷

In our own formulation we would say that the minor is a valid subject of being included in the offering, even if he is not a valid subject of fulfilling the mitzvah of offering it. The halakhic object of the Passover offering applies even in relation to a minor, although he is not obligated in this mitzvah—nor, for that matter, in any other mitzvah.

Thus, fulfilling mitzvot at a time of exemption does not discharge the person from the need to fulfill them again later. It should be stressed that this is true even according to those views that hold a woman, or a slave, can fulfill positive time-bound commandments such as eating matzah, and as we saw there is some kind of mitzvah-fulfillment in that. Even so, they have not discharged their obligation. Here we have yet another difference between one who is not commanded yet acts and an existential mitzvah. True, in the case of the minor on whose behalf the Paschal offering was slaughtered, that difference disappears, because slaughtering the Paschal offering on behalf of a minor—and perhaps any mitzvah that defines a legal state—resembles, in this respect, an existential mitzvah rather than the performance of a mitzvah while exempt.

Interim summary

We have learned that there are several differences between fulfilling mitzvot in which we are not commanded and existential mitzvot. In an existential mitzvah, the fulfillment is fulfillment in every respect. There is no obligation there, but that is the very nature and definition of the mitzvah. In the case of one who is not commanded yet acts, there is no halakhic object of the commandment as such. There may be a halakhic object of Torah study, or a halakhic object of prayer, but not a halakhic object of the commandment of Torah study or the commandment of prayer. Therefore one cannot discharge an obligation through these fulfillments.

We also saw that, according to the Griz, the fulfillment of one who is not commanded yet acts does not protect the person from the dangers associated with the mitzvah. Perhaps this has implications for the rule that emissaries engaged in a mitzvah are not harmed. Therefore, when a minor performs yibbum, although there is in his act some kind of mitzvah-fulfillment, it is not really a mitzvah—not even an existential mitzvah.

We have seen that with regard to one who is not commanded yet acts, there is a dispute whether he may perform the act where a prohibition is involved, as in the case of women and mixed wool and linen in tzitzit. What about existential mitzvot? May they be fulfilled even where a prohibition is involved? Is that universally agreed? If so, here too we have another difference between an existential mitzvah and one who is not commanded yet acts. And what about the rule that one engaged in a mitzvah is exempt from another mitzvah? Does that rule apply to existential mitzvot as well? And what about one who is not commanded yet acts? Here too it is worth looking for a distinction between these two categories.

One engaged in a mitzvah is exempt from another mitzvah

The author of Netivot Ha-Mishpat, no. 72, sec. 7, discusses bailees who, strictly speaking, are not required to take care of the object in their possession, but voluntarily choose to bring themselves under that duty. In such a case, does their care for the object exempt them from giving charity to a poor person—and thereby make them paid bailees by virtue of the “coin of Rabbi Yosef” doctrine—or not? He concludes that the exemption of “one engaged in a mitzvah is exempt from another mitzvah” does not apply to someone who voluntarily placed himself under obligation in a mitzvah. All the more so, this should be true of someone who is not obligated in it at all, such as women who perform positive time-bound commandments, and the like.

In the responsa Har Zvi, by Rabbi Zvi Pesah Frank, Orah Hayyim, part 2, no. 103, he too discusses this point, in connection with an elderly person for whom attending to a lost object would be beneath his dignity, and who nevertheless brought himself under that obligation. His conclusion there is different. In his view, such an exemption certainly does exist, and therefore that elderly person is indeed a paid bailee. He cites the same view in the name of Rabbi Shmuel Salant.

It would appear, however, that one can distinguish between these two cases. In the case of an elderly person for whom the act is beneath his dignity, there is certainly an existential mitzvah. If he insists on his dignity, he is exempt; but if he waives his dignity and decides to return the lost object, he performs a full-fledged mitzvah. Thus this is a case of the existential mitzvah of returning lost property. By contrast, in the case of a pledge-holder who chose to take collateral, he brought himself into that situation for his own sake, and only from that does the obligation to tend the object arise. That case is therefore more like one who is not commanded yet acts—and even less so, since fundamentally he is acting for himself.

See there further, where he challenges the ruling of Netivot Ha-Mishpat from Tosafot, s.v. “Ve-Im Natal,” on Babylonian Talmud, Bava Metzia 25b. It is explained there that if someone took an object that was in a case of doubtful abandonment—where it is doubtful whether it was intentionally placed there and thus not lost at all, or whether it is truly a lost object—then ideally he should not have taken it but should have left it where it was. Nevertheless, if he did take it, he becomes a paid bailee according to Rabbi Yosef. Rabbi Zvi Pesah Frank argues that this is even stronger evidence: in the case of doubtful abandonment, taking the object was forbidden in the first place, and yet once he took it, he is exempt from giving charity to a poor person. If so, all the more so should this be true in a case where it is permitted for him to take the object and he is engaged in a mitzvah.

According to our analysis, however, this need not be difficult. Netivot Ha-Mishpat deals with a case where the act was done for the person’s own benefit, as with someone who took collateral. There he is not regarded as engaged in a mitzvah. But one who took a lost object in a case of doubtful abandonment, even though there was a prohibition in taking it, did so in order to return the object to its owner, and therefore he is engaged in a mitzvah, just like the elderly person for whom the act was beneath his dignity.

In any event, one occupied with an existential mitzvah is exempt from another mitzvah. But one occupied with an existential mitzvah that is really for his own benefit is not exempt, and all the more so, if he is occupied with a mitzvah in which he is not commanded at all, it would seem that he is not exempt from another mitzvah under the rule that one engaged in a mitzvah is exempt from another mitzvah.

A positive commandment overrides a prohibition

We mentioned above the dispute cited by Raavad concerning women who perform positive time-bound commandments in a situation that involves a prohibition. With respect to an existential positive commandment, however, it seems agreed that it does override a prohibition. See Tosafot, s.v. “Ha-Tekhelet,” on Babylonian Talmud, Menahot 38a, and Sefat Emet there.⁸ In Hemdat Yisrael, in the pamphlet Ner Mitzvah (p. 8), the author discusses eating lesser consecrated offerings and argues that this is an existential mitzvah, and that here too a positive commandment overrides a prohibition.⁹ If so, this gives us yet another difference between one who is not commanded yet acts and an existential positive commandment.

Perhaps this can also explain the words of Ran on Babylonian Talmud, Kiddushin 31a, who writes that women can recite a blessing over positive time-bound commandments because men were commanded in them, and women too belong to these commandments, since they receive reward for performing them. In Kovetz Shiurim there, nos. 142-144, the question is raised: why are both of these reasons needed together? According to our analysis, had this commandment not been imposed on men, then a woman’s act would have been no more than the act of one who is not commanded yet acts, which does not allow for a blessing, since it is not mitzvah-fulfillment at all. But once men are commanded in it as an obligation, the action itself is defined as an obligatory religious act. It then becomes possible to interpret the exemption of women as converting the commandment, in their case, into an existential mitzvah rather than a pure case of one who is not commanded yet acts. Hence they may recite a blessing over it. The language of Raavad at the beginning of Torat Kohanim regarding women’s performance of positive time-bound commandments hints at precisely such a conception: “Thus it was given in the Torah: for men as an obligation, and for women as a permission.” The same also emerges from Kovetz Shiurim there, no. 143. Therefore, in commandments that are incumbent specifically upon priests—such as becoming pure, or eating ordinary food in purity—if an Israelite were to perform them, the act would certainly be devoid of any value. There would be no mitzvah-fulfillment at all, and where a blessing is relevant, he certainly could not recite one. Yet from this it also follows that, at least de facto, there is some identification between one who is not commanded yet acts and an existential mitzvah.

The significance of the distinction: What is a mitzvah?

These somewhat elusive distinctions raise many questions. We see that there are commandments that are obligatory, and commandments that are optional in the sense of being existential. There are commandments that are not imposed upon us at all, not even as optional, and yet there is still value in performing them. There are discretionary acts of value that are not mitzvot at all, such as character refinement according to some views. And there are fully discretionary acts whose performance has no value whatsoever.

It follows that the term “mitzvah” does not mean what one might have thought at first glance: a command of the Holy One, blessed be He, imposed upon us as an obligation. A mitzvah is a kind of normative fact. One who performs a mitzvah-act, such as women who study Torah, is not merely doing a factual act, as a non-Jew studying Torah does; rather, such a person is engaged in something that belongs to a certain spiritual-normative sphere. The Patriarchs as well, when they prayed, were not merely performing an action ahead of its time; they were apparently also fulfilling a mitzvah in some sense. Their fulfillment of mitzvah is not merely a subjective act of serving God, but entry into a different sphere of reality.

Thus, “mitzvah” is not merely a religious obligation, but the definition of a distinct sphere within reality: the sphere of mitzvot. This is something beyond good deeds as such. What we have here is service of God in the religious-spiritual sense. It is worth noting that Maimonides, in Sefer Ha-Mitzvot, positive commandments 95-96, broadens the concept of “mitzvah” even further, including within it additional normative facts that in practice have no direct halakhic consequence at all, though this is not the place to elaborate.

One implication of this distinction bears on the comments of the author of Kovetz Shiurim there, nos. 143-144. He writes that Raavad implies that the rule that a positive commandment overrides a prohibition is based not on the neglect of the positive commandment but on its fulfillment. What he means is that the difference between an obligatory positive commandment and the act of one who is not commanded yet acts lies only in the question whether failure to perform the act constitutes a sin. In his view, the fulfillment itself is the same in both cases. But according to our discussion here, there is also a difference in the fulfillment itself: in the first case one fulfills a mitzvah—and this is also true of an existential positive commandment—whereas in the second case, when one is not commanded yet acts, one merely performs a good act and nothing more.

Footnotes