Commandments and Their Enumeration – Lesson 8

Table of Contents

• Classifying types of positive commandments
• Gentiles, “do not place a stumbling block,” and the question of bans on entering the Temple
• Kiddushin as a positive commandment in Maimonides, as a procedure
• Divorce: procedure, a conditional positive commandment, and the nature of nullifying the positive commandment
• “Constitutive” versus “directive”: tzitzit, kiddushin, and divorce
• Dissolving a marriage versus dissolving kiddushin, and the implications of “once he set his mind to divorce her”
• Common-law spouses, Rabbi Dichovsky, and acquisition as a reality prior to the Torah
• Positive commandment and prohibition: a positive state, a negative state, and sharpening the distinction in an obligatory positive commandment
• Why there is no “positive prohibition,” and the asymmetry in the value of observance
• Nachmanides, Sdei Chemed, and the explanation of why a positive commandment overrides a prohibition
• The Raavad: an existential positive commandment overrides a prohibition, and looking at the side of fulfillment
• The Minchat Chinukh: a stolen sukkah, a commandment that comes through a transgression, and the split between non-fulfillment and nullification
• Concluding note: continuation of the “remove leaven” exercise

Summary

General overview

The text classifies positive commandments into four or five types and sharpens the distinction between an obligatory commandment and an existential one, between a procedural positive commandment and a conditional one, and between a positive commandment and a prohibition. It suggests that halakhic definitions can count as positive commandments for Maimonides without proving that there is an actual practical command here, and it uses that to reexamine the status of kiddushin and divorce, and the question of whether Jewish law “constitutes” concepts or merely “directs” them. It then comments on an asymmetry between positive commandments and prohibitions, connects it to the explanation of why a positive commandment overrides a prohibition and to the Raavad’s comments about an existential positive commandment overriding a prohibition, and brings a novel idea from the Minchat Chinukh about a commandment that comes through a transgression, distinguishing between failure to fulfill a commandment and nullifying a positive commandment in conditional obligatory positive commandments.

Classifying types of positive commandments

The text defines an obligatory positive commandment as a commandment that can both be fulfilled and nullified: one who performs it fulfills a positive commandment, and one who neglects it commits the transgression of nullifying a positive commandment. It defines an existential positive commandment as a commandment that can be fulfilled but cannot be nullified, and usually it appears only beyond a certain threshold, where up to the threshold there is an obligation and beyond it there is existential fulfillment, with examples such as charity beyond a third of a shekel per year and Torah study beyond reciting Shema morning and evening. It presents the position of Rabbi Moshe Feinstein that the commandment of settling the Land of Israel may be exceptional as a commandment that is “entirely existential,” and notes that this is debated.

The text defines a third type as a commandment that can be nullified but cannot be fulfilled, called a positive-form prohibition or a prohibition derived from a positive commandment, and gives as an example “You may lend on interest to a foreigner.” It explains that verses like this have to be read as though the word “only” were added to them, so that “only to a foreigner may you lend on interest” excludes lending on interest to a Jew, rather than commanding one to lend on interest to a foreigner. It notes that in Maimonides it appears there is actually a commandment to lend on interest to a foreigner, but the straightforward view is that this is exclusion, not command.

The text defines a fourth type as commandments that can neither be left unfulfilled nor nullified, namely definitional commandments or procedures such as defining ritual impurity and ritual purity, and emphasizes that the halakhic implications of impurity, such as the prohibition on an impure person entering the Temple or on an impure priest serving, are counted as separate commandments and therefore are not the reason the commandment of impurity itself is counted. It quotes Maimonides that the very definition of who is impure and when is itself a positive commandment, and places examples like the annulment of vows in this category as well.

Gentiles, “do not place a stumbling block,” and the question of bans on entering the Temple

The text raises the question whether there is a “commandment not to become impure” in the context of gentiles, and whether a gentile is obligated to refrain from entering the Temple. It notes that we do not find that people supervise gentiles to keep them from entering, and that this is not one of the seven Noahide commandments. It states that Jews do have a general obligation not to cause a gentile to stumble, under the rule of “do not place a stumbling block,” and notes that the Talmud says this applies to a gentile as well, whereas other obligations such as rebuke and the like do not straightforwardly apply to a gentile. It suggests that there may perhaps also be an element of “guarding the Temple,” but emphasizes that the prohibition on causing stumbling exists, while the duty to prevent the gentile’s transgression is not an interpersonal obligation in the full binding sense.

Kiddushin as a positive commandment in Maimonides, as a procedure

The text argues that the appearance of kiddushin in Maimonides’ count of the commandments does not prove that one who betroths a woman fulfills a positive commandment in the sense of “who sanctified us with His commandments and commanded us,” because for Maimonides there is a category of procedural positive commandments that define a halakhic mechanism. It presents the attributed dispute between Maimonides and medieval authorities (Rishonim) such as the Rosh and the Beit Yosef in Even HaEzer, and suggests that Maimonides can count kiddushin as a positive commandment even if it is merely what permits or enables the commandment of procreation, similar to the definitions of annulment of vows and impurity. It concludes that one cannot infer from the existence of a “positive commandment” in Maimonides that there is a practical command to carry out the act, because sometimes it is only a definition of “what it is” and “how it takes effect.”

Divorce: procedure, a conditional positive commandment, and the nature of nullifying the positive commandment

The text presents the tendency to say that the commandment of divorce is a procedural commandment: if one wants to divorce, one does so in a certain way, and if it was not done “according to the law of Moses and Israel,” then simply “nothing happened” and she is not divorced, much like the tendency to explain the commandment of slaughtering. It distinguishes between slaughtering as a conditional positive commandment, where one who wants to eat meat must slaughter and recites the blessing “who sanctified us with His commandments and commanded us concerning slaughtering,” and procedural commandments over which no blessing is recited.

The text cites Sefer HaChinukh, which says that one who did not divorce properly has nullified a positive commandment, and concludes from this that the commandment of divorce is not in the definitional category where nullification is impossible. It formulates two possibilities for the nature of the commandment: either a conditional positive-form prohibition, in which not giving a bill of divorce is nullifying a positive commandment but giving the bill of divorce is not fulfillment of a commandment, or a conditional obligatory positive commandment, in which giving the bill of divorce is fulfillment of a commandment and not giving it is nullifying a positive commandment. In any case, it says, this is a conditional commandment: “If you want to divorce, do it with a bill of divorce, according to the law of Moses and Israel.”

“Constitutive” versus “directive”: tzitzit, kiddushin, and divorce

The text argues that halakhic concepts are sometimes not “constituted” by Jewish law but rather “directed” by it, and brings linguistic evidence from “and it shall be for you as tzitzit,” whose meaning is that the concept of tzitzit exists in a general sense and the Torah directs how to do it correctly through tekhelet, white threads, and knots. It applies this to kiddushin and divorce and argues that the concept of divorce exists even outside halakhic definitions as the act of “separating,” and the Torah instructs how to carry this out properly, so that not doing it according to the law of Moses and Israel is “nullifying a positive commandment” and not necessarily “you did not divorce.”

The text cites Maimonides at the beginning of the Laws of Marriage, where he describes that before the giving of the Torah, a man would bring a woman into his house and they became married, and when he wanted to divorce her he would send her out of his house and they were divorced, and after the giving of the Torah kiddushin was added to marriage—through money, document, or intercourse—and the requirement of a bill of divorce was added to divorce. It interprets Maimonides not as merely recording history, but as stating that the concept of marriage and divorce still exists even today outside the Torah’s commands, and the Torah adds formal direction for how to do it “correctly.”

Dissolving a marriage versus dissolving kiddushin, and the implications of “once he set his mind to divorce her”

The text distinguishes between dissolving the kiddushin through a bill of divorce and dissolving the marriage through actual separation, and argues that the bill of divorce “dissolves the kiddushin, not the marriage,” while marriage is created through shared life and dissolved by its cessation. It suggests that a situation in which a couple separates in practice without a bill of divorce is similar to the status of a betrothed woman: the prohibition with respect to the rest of the world still remains because there is no bill of divorce, but the marital obligations have already come apart. It brings hints to this from the Talmud in tractate Gittin 17 about “from the moment he set his mind to divorce her, he no longer has rights to her produce,” from laws regarding a priest who married a divorcee and became disqualified and then returns to service “from the moment he vowed to divorce,” and from the Talmud in tractate Bava Batra that “from the moment he set his mind to divorce her, he no longer becomes impure for her” and does not inherit her.

Common-law spouses, Rabbi Dichovsky, and acquisition as a reality prior to the Torah

The text argues that a couple living together as common-law spouses with the aim of a lasting relationship is “a married couple in every respect” in terms of the concept of marriage, which exists even for a gentile, although they are not “married according to the law of Moses and Israel” because they did not perform kiddushin. It attributes to Rabbi Dichovsky a direction toward recognizing this status in order to solve problems in religious courts, but argues that this recognition is not merely a problem-solving tool but a description of a real situation in which halakhic spousal obligations do exist.

The text compares this to concepts of acquisition and ownership as existing also among Noahides, and cites Rabbi Shimon Shkop in Shaarei Yosher, Gate 5, who says that even according to views that robbing a gentile is not forbidden by the Torah under “do not steal,” still robbing a gentile is forbidden by the Torah because one must recognize his ownership. It brings an example from Magen Avraham in the name of Sefer Yere’im, that one who stole an etrog from a gentile does not fulfill the commandment with it on the first day because of “it shall be yours,” even according to views that robbing a gentile is not forbidden by the Torah. It presents the modes of acquisition as sometimes based on custom and the Sages, and explains that the book of Ruth, with regard to symbolic exchange acquisition, is a “historical source” recording a practice, not a source that constitutes validity.

Positive commandment and prohibition: a positive state, a negative state, and sharpening the distinction in an obligatory positive commandment

The text returns to the distinction that positive commandments point to a positive state, whereas a prohibition points to a negative state, and asks why there is an obligatory positive commandment in which non-fulfillment is a transgression, if nonperformance is supposedly neutral. It explains that nullifying a positive commandment in an obligatory positive commandment is a transgression of the type “absence of a positive state,” and not a transgression of “being in a negative state” like a prohibition. It distinguishes this from an existential positive commandment, where the absence of the positive state is not a problem but only a lack of piety, whereas in an obligatory positive commandment there is a “basic demand” to be in the positive state, and therefore absence from that state is perceived as a transgression. It attributes to Rabbi Abraham Kahana the claim that there is no commandment that is “entirely existential,” and that in practice there is always a threshold, and it uses the idea of a threshold to explain why non-fulfillment below the threshold is viewed as a basic demand.

Why there is no “positive prohibition,” and the asymmetry in the value of observance

The text asks whether prohibitions have a parallel distinction to existential and obligatory positive commandments, and suggests that the ordinary prohibition is an “existential prohibition,” where violation is a transgression but refraining is not a commandment—nothing happened. It notes that it is hard to find an “obligatory prohibition” in which refraining from violation would count as a commandment, and admits that it has no answer as to why the domain of prohibitions is “less rich” than the domain of positive commandments; perhaps this is accidental and not a necessary categorical feature. It emphasizes a fundamental asymmetry: with positive commandments, fulfillment is always a commandment, apart from the definitional kind, whereas with a prohibition, refraining from the forbidden act is not considered a commandment. It gives the example of “do not stand idly by your neighbor’s blood,” where one who saves someone is not defined as having fulfilled a commandment from the side of the prohibition, but as having simply not committed a transgression.

Nachmanides, Sdei Chemed, and the explanation of why a positive commandment overrides a prohibition

The text mentions Nachmanides on the portion of Yitro and Sdei Chemed’s explanation of the asymmetry in “importance” between a positive commandment and a prohibition: fulfillment of a positive commandment is on a higher level than refraining from a prohibition, and nullifying a positive commandment is less negative than violating a prohibition. It raises the difficulty that in a case where a positive commandment overrides a prohibition, the offsetting of the values of fulfillment and nullification seems to leave “zero against zero,” and explains that the ruling in favor of the positive commandment stems from the fact that refraining from a prohibition is not a positive value at all, just zero, whereas fulfilling the positive commandment is a real positive value. It illustrates this with the example of eating matzah versus the prohibition of new grain on Passover night, and concludes that it is preferable to fulfill the positive commandment even at the cost of a prohibition, because on the other side there is only the “minus” of nullifying a positive commandment without any “plus” of fulfillment in refraining.

The Raavad: an existential positive commandment overrides a prohibition, and looking at the side of fulfillment

The text cites the Raavad at the beginning of the Sifra, who says that an existential positive commandment overrides a prohibition, in the context of women optionally leaning on sacrifices, and asks why one should fulfill an existential commandment at the cost of a prohibition if one could simply choose not to fulfill it. It explains that an existential commandment is “great righteousness,” and therefore on the side of fulfillment it is a higher value, while on the side of nullification there is no claim against one for not doing it. Therefore, if an obligatory positive commandment overrides a prohibition, then an existential positive commandment, whose value in fulfillment is greater, “certainly overrides a prohibition.” It suggests that the dispute over whether an existential positive commandment overrides a prohibition depends on whether, in the rule that a positive commandment overrides a prohibition, we look at the side of fulfillment or the side of nullification.

The Minchat Chinukh: a stolen sukkah, a commandment that comes through a transgression, and the split between non-fulfillment and nullification

The text cites Tosafot in tractate Sukkah 9, which asks why a verse—“You shall make for yourself the festival of Sukkot”—is needed to invalidate a stolen sukkah if in any case there is the disqualification of a commandment that comes through a transgression. It brings Tosafot’s answer that a commandment that comes through a transgression is not Torah-level but rabbinic, while noting that most medieval authorities (Rishonim) hold that it is a Torah-level disqualification. It presents the Minchat Chinukh in commandment 325, letter 9, who distinguishes between obligatory positive commandments that rest directly on the person—such as tefillin, etrog, and eating matzah—and commandments that one is not obligated to enter into, such as tzitzit and sukkah on the other days of the festival. In the second type, he defines three states: fulfillment of the commandment, a neutral state of not entering the obligation, and nullification when one enters the obligation and does not fulfill it, such as wearing a four-cornered garment without tzitzit or eating a fixed meal outside the sukkah.

The text explains the Minchat Chinukh’s novel point: a commandment that comes through a transgression has the meaning of “not accepted favorably before Him,” and therefore there is no fulfillment of the commandment, but in positive commandments that are not constant obligations there may also be no nullification of a positive commandment, because this resembles the state of someone who does not wear a four-cornered garment at all or does not eat at all. It concludes that according to this, the disqualification of a commandment that comes through a transgression is not enough to define “he ate outside the sukkah” in a stolen sukkah, and therefore a special verse is needed to disqualify the sukkah in the object itself and make sitting in it count as eating in a house and as nullifying a positive commandment. It notes that many later authorities (Acharonim) disagree with the Minchat Chinukh, but the text says there is logic in what he says, and emphasizes that the Minchat Chinukh adds finer resolution by allowing, in conditional obligatory positive commandments, a distinction between failure to fulfill the commandment and actually committing the transgression of nullifying a positive commandment.

Concluding note: continuation of the “remove leaven” exercise

The text concludes by saying that the discussion up to this point serves as practice for the conceptual system of the different types of positive commandments, and that he is planning a “slightly subtler exercise” regarding the commandment to remove leaven on Passover in the next lecture, while noting that there will be no classes next week because of the elections, and the continuation will be the week after.

Last time I started discussing types of positive commandments, and I said there are four or five types. A regular positive, obligatory commandment is a commandment such that whoever fulfills it has performed a positive commandment, and whoever violates it commits the transgression of neglecting a positive commandment; and this is a commandment that can both be fulfilled and neglected. There is a commandment that can be fulfilled but cannot be neglected, and that is an existential positive commandment. I said that usually this only begins from a certain threshold upward: there is a mandatory threshold, and from there on it becomes existential. The commandment of settling the Land of Israel, according to Rabbi Moshe Feinstein, may be an exception, and there is debate about that. What is another example of an existential commandment? What is an existential commandment? So I said: a commandment that is entirely existential—there really isn’t such a thing, except perhaps Rabbi Moshe Feinstein on the commandment of settling the Land of Israel. A commandment that has an existential threshold—charity, for example, beyond a third of a shekel a year; Torah study, apart from reciting the Shema morning and evening; there are several commandments like that. There is a commandment that can be neglected but cannot be fulfilled, and that is an affirmative prohibition, or a prohibition derived from a positive commandment. Right? “You may lend at interest to a foreigner,” or checking the signs of kosher animals or kosher fish. The Sages treat this as a prohibition derived from a positive commandment, or as an affirmative prohibition, and I said that in verses interpreted that way you simply have to add the word “only.” When it says, “You may lend at interest to a foreigner,” the meaning is “only to a foreigner may you lend at interest.” “Only to a foreigner may you lend at interest” means that this excludes lending at interest to a Jew; it does not mean to command lending at interest to a foreigner. In Maimonides it seems that there is actually a commandment to lend at interest to a foreigner, but the simple understanding is that it only comes to exclude lending at interest to a Jew. So that is the third type. The fourth type is commandments that cannot be either fulfilled or neglected, which are basically definitional commandments or procedures. That means, for example, a definition of who is impure, and when and how he becomes purified. So there is no command here to become impure, nor a prohibition against becoming impure, but there is a definition of when you are considered impure, and this has various consequences. I said that the consequences themselves appear separately in the Book of Commandments. That is, you cannot say that this thing is a commandment because of its halakhic consequences. For example, someone who is impure cannot enter the Temple, or a priest who is impure cannot serve. But the prohibition against an impure priest serving, or the prohibition against an impure person entering the Temple, appear separately in the enumeration of the commandments. Therefore, the commandment of impurity as such is not a commandment because of that, because of its halakhic consequences, but Maimonides himself writes that the very definition of who is impure and when is itself a positive commandment. Is there also a commandment not to become impure? Only under “do not stand idly by your neighbor’s blood,” or—you know—the prohibition against a gentile entering. What do you mean? Not a commandment, a prohibition, yes, a prohibition on the gentile—why not? Well, because we don’t find that we supervise to make sure a gentile does not enter. Besides, it’s not one of the Seven Noahide Commandments. There are other prohibitions on gentiles that are not included in the Seven Noahide Commandments. Is a gentile not obligated to refrain from entering, say, the Temple? You have an obligation in general to prevent a prohibition: “do not place a stumbling block,” “you shall surely rebuke,” “do not stand idly by your neighbor’s blood.” Right, so as for “do not place a stumbling block,” that applies also to a gentile, as the Talmud says. The other things, apparently, do not apply to a gentile. So maybe not. It could be that we have some kind of duty—I don’t know—to guard the Temple, but as an obligation to prevent a gentile from transgressing, that is already an interpersonal obligation, and that you are not obligated in. Causing him to stumble is forbidden. So these procedural obligations are basically obligations that impose no duty on us to do anything, no prohibition telling us what not to do, and yet they are still defined as positive commandments, as Maimonides says regarding annulment of vows, impurity, and the like. And Maimonides says there that what I do not need to explain—know that in several places this too is defined as a positive commandment. And don’t think that because of that one has to do it, or must not do it. By the way, this is one of the reasons why, in my opinion, the commandment of betrothal—where everyone says Maimonides disagrees with this, disagrees here with most of the medieval authorities (Rishonim), with the Rosh and so on, even the Beit Yosef at the beginning of Even HaEzer—that Maimonides claims this is a positive commandment, while the Rosh claims that it is a permit, or yes, or the path to procreation, an instrument for the commandment of procreation. I am not sure people are right on this point, because when Maimonides counts it as a positive commandment, that could very well be a procedural positive commandment. Maimonides has such a category. And therefore one cannot necessarily infer from here that someone who betroths a woman thereby fulfills a positive commandment. The fact that it is defined as a positive commandment may simply mean that there is a definition of what betrothal is, how betrothal takes effect—just as there is a definition of what annulment of vows is and how vows are annulled, and how one becomes impure or becomes purified. But once Maimonides says that definitions too are included in his enumeration of the commandments and can count as positive commandments, then you cannot draw any conclusion from the appearance of a positive commandment in Maimonides that there really is a command here. One could also say that this is basically only a permit, and still say that this thing will be counted among the commandments. That is regarding the commandment of betrothal. At the end I noted regarding the commandment of divorce, right? The commandment to divorce one’s wife with a bill of divorce. And I said that in light of this classification, the question arises how to define this commandment. What exactly is this commandment? On the face of it, the simple tendency is to say that we are dealing with a procedural commandment—not an existential commandment, not an obligatory one, and not an affirmative prohibition, but rather a procedural commandment that says that if one divorces a woman, one does it in this and this manner. If you did it in this and this manner, the woman is divorced. What happens if you did not divorce her in accordance with the law of Moses and Israel, right? According to the halakhic definitions? Nothing happened; she is simply not divorced. That is the simple view. If you ask this in the yeshivot, I am sure that is the answer you will get. The same thing is also commonly explained regarding the commandment of slaughtering. Now regarding slaughtering, this is already a well-known discussion, and many have already pointed out that it is not really a procedural commandment, but rather a conditional positive commandment. I distinguished between a conditional positive commandment and an existential commandment, because if you want to eat, then you are obligated to slaughter. And the slaughter will count as a positive commandment. We even recite a blessing: “Who has sanctified us with His commandments and commanded us concerning slaughtering.” Over annulment of vows we do not recite a blessing; it is not a commandment in that sense of “Who has sanctified us with His commandments and commanded us.” But over slaughtering we do recite a blessing. Therefore, the accepted view is that slaughtering is indeed considered a commandment, a conditional obligatory commandment. That is, if you want to eat meat, then you have to slaughter. What about divorce? With divorce, I think the answer you will generally get is that it is a procedural commandment. It is not a commandment—or yes, it is a commandment—anyone aware that there is… What, is there positive value in slaughtering itself? What do you mean by positive value? Slaughtering is necessary. If you want to eat, then you need to slaughter. You can’t eat without slaughtering. If you don’t want to eat, then don’t eat. You proposed a normative category: a positive commandment is something where the value of doing it is positive, right? But there is no positive value in the commandment itself here. Why is there? If you want to eat, there is value in the meat being slaughtered, in its being slaughtered. If you want to eat. There are conditional values. It is like a more extreme commandment—let’s call it counter-to-duty, it’s CTD in the logic of norms—say, returning stolen property. That is a positive commandment. But clearly there is no point in putting yourself under the obligation of that positive commandment. If you violated the prohibition of theft, then the issue of returning the stolen property becomes a positive state. So clearly this is not a positive state that you should aspire to from the outset, since in that case there is actually a prohibition on getting into that positive state at all. Here it is merely neutral. You want to eat—fine. You want to wear a four-cornered garment—fine. Then you are in a state where putting on fringes or slaughtering really does become a positive state. But it is conditional upon certain circumstances or upon certain desires of yours. So regarding divorce, I brought the Sefer HaChinukh, where the Chinukh says that someone who neglected this and did not… from which we see that this is not a definitional commandment. Because a definitional commandment can neither be fulfilled nor neglected. This commandment can be neglected. There is neglect of a positive commandment. Now that itself really does require explanation, just conceptually. What positive commandment did you neglect? What did you neglect? You do not want to divorce your wife, so you did not divorce her, and everything is fine. The fact that you want to divorce your wife—does that mean that now you are obligated to divorce her, and that there is a positive commandment to divorce her, and if you did not divorce her even though you want to divorce her, then you neglected a positive commandment? That is essentially what follows from the Chinukh, right? Not the intuitive interpretation that naturally suggests itself. Because if you want to divorce the woman, you decided to divorce your wife, then if you did not do it in accordance with the law of Moses and Israel, then essentially you neglected that positive commandment, you have neglected a positive commandment. So it is not procedure; it is a commandment that can also be neglected. Therefore it is clearly not the fourth category. The question is what it is. The question is what it is. Is this thing an affirmative prohibition? That is, if you want to divorce your wife, then if you did not divorce her with a bill of divorce, you violated something, you neglected a positive commandment—but not that if you did divorce her then you have a positive commandment. Okay? Or is it really a genuinely obligatory conditional commandment? That is, if you want to divorce your wife, then yes, giving her the bill of divorce in accordance with the law of Moses and Israel is truly a positive commandment, and then if you did not do it, that is also neglect of a positive commandment. An obligatory positive commandment that can both be fulfilled and neglected only if it is conditional—because it is conditional on your having decided to divorce the woman. Either way, what follows from this is that the concept of divorce—and this is a point I discussed last time—is basically a concept that Jewish law regulates and does not constitute. I said that our simple tendency is to think that halakhic concepts are constituted by Jewish law. That is, they are not concepts that exist without Jewish law; Jewish law creates them. For example, divorce: if you did not do it in accordance with the law of Moses and Israel, then quite simply she is not divorced, that’s all. Because the concept of divorce—the halakhic definitions—are what constitute it. If that did not happen, then you simply did not divorce. But if the Chinukh says no—if that did not happen, then you did divorce, you just did it improperly, meaning you neglected a positive commandment—then that means that the concept of divorce exists also outside the halakhic definitions. It is not that the halakhic definition constitutes the concept of divorce. The concept of divorce exists even without that. What is divorce? Separating. A couple separates. The Torah says how to do it correctly. And if you did not do it correctly, then that is neglect of a positive commandment. But the concept itself exists even outside the Torah’s definitions. I brought the example of fringes, “and they shall be fringes for you.” The meaning of the expression “and they shall be fringes for you” is that this whole combination of blue and white threads, and how they are tied, and the knots, and all these things—that is what the Torah wants to count as fringes for us. Which implies that the concept of fringes already exists beforehand, and the Torah says: I want you to make the general concept of fringes specifically in this way and not in another way. Because if it were a concept that Jewish law constitutes rather than regulates, then there would be no point in saying “and they shall be fringes for you.” Come on—that is the definition, that is what is called fringes. Why would I need to say “and they shall be fringes for you,” as though I want your fringes to be this and not something else? If it were something else, it simply would not be fringes. That would be a definition, not a command. If the Torah says “and they shall be fringes for you,” that means that what appears in the passage of fringes is not a definition of the concept of fringes, but rules directing me how to realize the concept of fringes correctly. And this means that the concept of fringes is not constituted by Jewish law but regulated by Jewish law. Fringes are a symbol or something of that sort, and the Torah wants our symbol to be specifically this. Therefore it exists even without the Torah’s command, and the same is true for betrothal and divorce. I said that Maimonides at the beginning of the Laws of Marriage describes what used to happen before the giving of the Torah: when a man and woman wanted to marry, a man would bring her into his house and they would live together. If they wanted to divorce, he would send her out of his house and they were divorced. And after the Torah was given, the Torah tells us to precede marriage with betrothal, by money, document, or intercourse, and in divorce it is not enough merely to send her out of his house, but rather one must give her a bill of divorce in accordance with the law of Moses and Israel. Okay? But these are additions that were added after the giving of the Torah. Which means that the concept of betrothal, or the concept of marriage and divorce, exists before the giving of the Torah. After the giving of the Torah it underwent change or regulation, but it was not created at Sinai. The giving of the Torah did not constitute these concepts; it regulates them. Right. I said there are legal systems that are regulative and constitutive, right, constitutive and regulative, and those are the terms I am using here. Therefore, when Maimonides brings at the beginning of the Laws of Marriage the description of what existed before the giving of the Torah with regard to marriage and divorce, he is not bringing it merely as historical documentation; rather, he wants to claim that this is the situation even today. Or in other words, even today, if you divorce—if you send her out of your house, then you are divorced. Without a bill of divorce, you are divorced. It is only that you are divorced in a way that the Torah does not want, and therefore you have neglected the positive commandment. The Torah says that if you are divorcing anyway, then you should also give a valid bill of divorce. If you did not do that, it is not that you are not divorced; you are divorced, because the concept of divorce exists independently of the Torah’s commands, only you divorced her improperly, and therefore you neglected that positive commandment and its punishment is severe, as the Chinukh says. Now, I spoke about this—no, it has halakhic implications. Right, she is not married; she has returned to the status of betrothal. No, a bill of divorce is still needed; the bill of divorce undoes the betrothal, not the marriage. Let me say it again—maybe I will add a few sentences. I think I touched on this a bit last time, but I am not sure. On the way in, when we build marriage, there is a situation where before the giving of the Torah there was marriage: we would decide to live together and live together, and that made us a married couple. That is what still happens today for a gentile, okay, from the standpoint of Jewish law. The Torah wanted to put before that a formal stage called betrothal. And this involves witnesses and a ring, or money, document, or intercourse; and there are all sorts of rules about how betrothal is done, what counts as valid betrothal, invalid betrothal—that is the concept of betrothal, the formal halakhic concept on the way to building a home. One has to begin with it, and only afterward—there used to be twelve months, today they do it together—but only afterward do they actually begin living together and become a married couple. So during those twelve months between the betrothal—what is called erusin or kiddushin, it is the same thing—and the marriage, the woman is betrothed. A person’s obligations toward his wife mostly arise only after the marriage. During the betrothal period, what mainly exists is her prohibition to the whole world. She is considered a man’s wife in the sense that anyone who has relations with her is forbidden to do so, but in terms of the mutual marital obligations, the home does not yet exist. In the Torah’s language, she is apparently not yet called “his flesh.” She is called “his wife”; “his flesh” is only after marriage, because with regard to the impurity of a priest for his close relative—“his flesh” means his wife—but that means his wife after marriage, not after betrothal. And likewise with all the obligations of the marriage contract and the like. What I wanted to argue is this: what happens if a person—if the couple decides to separate, a man wants to divorce his wife? Usually he gives her the bill of divorce, and the bill of divorce is basically the exit route that dissolves the betrothal, not the marriage. Just as there is a halakhic addition on the way in—betrothal—the halakhic dimension on the way out is the giving of the bill of divorce, that is, divorce. Okay? But besides giving the bill of divorce, there is also the marital dimension that has to be dismantled. How do you dismantle the marital dimension? The betrothal is dismantled by a bill of divorce. It is created by money, document, or intercourse and dissolved by a bill of divorce. The marriage is created by living together and dissolved by separation, by ceasing to live together, by sending her out of his house; that is basically divorce. Okay? That is divorce from the standpoint of marriage, but it leaves the concept of betrothal intact. That remains until you give a bill of divorce. Therefore, for example, her prohibition to the rest of the world still remains, because she did not receive a bill of divorce, like the situation of a betrothed woman. But the obligations between a man and his wife no longer exist, even if he has not given a bill of divorce. And there are all sorts of hints to this, strange little hints in their place, and when you look at it this way, suddenly everything falls into place. The Talmud in tractate Gittin, for example, says on page 17 that from the moment he set his mind on divorcing her, he no longer has rights to the produce. He no longer has rights to the produce of the usufruct property she brought in, from the moment he set his mind on divorcing her—not from the bill of divorce. A priest who married a divorcee, for example, cannot serve, because he is disqualified. He cannot serve in the Temple. From the moment he vowed to divorce his wife, when he decided to divorce his wife, he can go back to serving. He has not yet divorced her. He is married to a divorcee. Yet he can serve. Likewise, the Talmud in Bava Batra there—the Rashbam and the Rashash discuss this—that from the moment a man decided to divorce his wife, he enters after her into a ruin, it doesn’t matter, there is a discussion there in Bava Batra—from the moment he decided to divorce her, he no longer becomes impure for her. A priest who becomes impure for his wife in order to bury her—from the moment he set his mind on divorcing her, he no longer becomes impure for her. He also no longer inherits her, it says there. That is, all these concepts that are created after marriage are dissolved not by the bill of divorce, but from the moment he set his mind on divorcing her. In other words, the moment they are what one might call “divorced in the heart,” meaning they have decided that they are no longer a married couple, then the marriage no longer exists. You still have to release the betrothal, and for that you need to give a bill of divorce. Until then she is not permitted to the world in terms of sexual relations, but the marriage has been dissolved. Okay? And therefore, for example, a couple living today without betrothal, but with the aim of institutionalizing the relationship—what is called common-law partners—that has halakhic status. It has halakhic status. They are basically a married couple in every respect. Now, they do not want to be married? What does that mean? As a couple—they do want to be married. What does it mean they do not want to be married? They do not want it in accordance with the law of Moses and Israel. Fine—that is exactly the point. Since I am saying that marriage is not a concept that Jewish law constitutes but only regulates—the concept of marriage, not betrothal—marriage basically exists also among gentiles. In that sense, if two Jews decide to live together as a permanent couple—if they decide to live together and do live together—then they are married just as any two gentiles are married. They are not married in accordance with the law of Moses and Israel. Why not? Because they did not perform betrothal. So they did not do it properly, but they are married. What difference does it make if they are careful, if they do not want… they did not do it in accordance with the law of Moses and Israel? If they are careful not to want it in accordance with the law of Moses and Israel? But they do want to live as a married couple. As a couple, not married. What is called married? You are assuming that “married” means a halakhic definition, that Jewish law constitutes the concept of being married. But I claim not; it regulates the concept of being married. In other words, the concept of being married exists before Jewish law and also outside Jewish law. Exactly what Rabbi Dichovsky did, right? Right. Rabbi Dichovsky. Yes, although he takes it in a practical direction, and in my opinion the categories there are not defined correctly, but that is the direction. They claim, for example, that a bill of divorce is needed out of concern for adultery. I think that is incorrect. As a stringency? No, he claims that a real bill of divorce is actually required. Yes, as far as I remember—but in my opinion that is incorrect. For example, betrothal by money: the Talmud in tractate Kiddushin learns this from “taking” “taking” from Ephron’s field. “Taking,” “taking,” yes. There too would we say that it does not constitute but that the Torah simply found…? No, betrothal the Torah does constitute. Again. This thing of learning betrothal by money—I would say that does not mean the Torah constitutes it, but simply that this was the custom then? No, with Ephron it was not betrothal at all; it was buying a field. Right, but what do you mean “that was the custom then”? After all, it is learned from Ephron’s field, and with Ephron it was a purchase of a field. It is a verbal analogy. It is not that betrothal is learned from there. After all, there is a “taking” “taking” from Ephron’s field. The nature of acquisition is something else, but that betrothal is done similarly to an acquisition—that is a verbal analogy from the Torah, “taking” “taking.” There is no custom stated in the Torah that they used to perform betrothal with money. It is not stated. It does not appear there. In general, the methods of acquisition can be discussed broadly. We know, for example, that a commercial custom is considered acquisition even at the Torah level according to most opinions. That means that in acquisition it is certainly like this, even aside from my point here regarding betrothal. In acquisition it is well known that tractate Bava Batra is a tractate without verses. Why? Because the methods of acquisition were established by the Sages. As for pulling and money—the dispute between Rabbi Yohanan and Reish Lakish—there perhaps a verse may be brought, but generally lifting, possession, all those things are learned from reason or from how the Sages established them. So here you cannot say that the Torah does not constitute? Yes, correct. The concept of acquisition exists even without that. Did the descendants of Noah not have acquisition? Of course they did. On the contrary, Rabbi Shimon Shkop argues in Sha’ar 5. He says that even according to the opinions that stealing from a gentile is not forbidden by Torah law—it is a dispute among the medieval authorities (Rishonim): whether stealing from a gentile is included in “you shall not steal” and is forbidden at the Torah level, or whether it is not forbidden at the Torah level—still, obviously stealing from a gentile is forbidden by Torah law. Not because of “you shall not steal,” but because the money is his money, the concept of ownership exists also among gentiles, that is obvious. That is not a novelty of the Torah. And violating the concept of ownership is theft. It is juridical theft, not theft deriving from “you shall not steal.” But it is a legal prohibition that Jewish law recognizes. Jewish law recognizes this as a prohibition. For example, from the rule of “for yourselves,” I think the Yere’im brings there—and the Magen Avraham cites him—that someone who stole an etrog from a gentile cannot fulfill his obligation with that etrog on the first day. It is not “for yourselves.” Even according to the opinions that stealing from a gentile is not forbidden by Torah law. Because in the end it is stolen, it is not yours, it is the gentile’s. The concept of ownership exists before the Torah began with all the laws of “you shall not steal” and defining things. Sometimes the Torah defines methods of acquisition, not the concept of acquisition. How one acquires. But even that is not always the case. Many methods of acquisition are methods that were accepted practice. What is barter acquisition? I talk about this in the chapter “HaZahav” on Thursday—we will discuss methods of acquisition, acquisition by money and barter acquisition—and there I explained that barter acquisition is not something learned from the Book of Ruth. People think it is learned the way acquisitions are learned from other verses. The Book of Ruth simply records that the accepted custom in ancient times for acquiring was through barter acquisition. It is simply a historical source. I could have learned it just as well from the Dead Sea Scrolls or from archaeology. In this context, the Book of Ruth has only historical value, not Torah value. It is not a source telling me why it is valid, but a source telling me that this is how they acted once, and therefore it is valid because what was practiced has validity. Okay? So yes, regarding marriage, betrothal, and divorce, the claim there is the same claim. The concept of marriage and divorce is a concept that exists even before the Torah. And even after the Torah was given it exists outside Jewish law. Jewish law tells me how to do it correctly. Both betrothal—you need to precede marriage with betrothal, by money, document, or intercourse—and divorce, which needs to be done with a bill of divorce and not merely by sending the woman out of his house. But that does not mean that if you did not do it in accordance with the law of Moses and Israel, what you did is devoid of all significance. It is not devoid of all significance; rather, it has the significance it still has for gentiles to this day. Therefore, if a Jew does this today not in accordance with the law of Moses and Israel, then he has marriage or divorce on the Noahide model. And that has all sorts of implications. For example, the obligations—according to my understanding—the obligations between spouses fully exist in common-law relationships, halakhically. In principle you owe all the obligations of husband and wife; they ought to live with a marriage contract if they were doing it in accordance with the law of Moses and Israel. Because you are a couple. The fact that you did not do it according to law and did not precede it with betrothal—fine, then you neglected a positive commandment, or however you want to define it—but you did not do it according to law, and yet you are still a couple. And if you are a couple, a couple has obligations. Therefore, de facto recognition of common-law partners, as is accepted today in the civil courts, also has halakhic validity. Rabbi Dichovsky tried to get this recognized also in rabbinical courts in order to solve various problems—not to compromise on Jewish law, but to recognize the existing situation. But I do not think this is just meant to solve problems; that really is the situation. You really are married. It is not a matter of, let us propose recognizing them because it solves various problems for us, okay? Even though the rabbi mentioned that this is supporting evidence and so on—he wants to prove from the Minchat Chinukh that there is indeed a conditional positive commandment here. Meaning, we see that there is a negative state that he wants to present. Yes, I said that. But the question is: what is it conditional on? Is it a conditional affirmative prohibition, or is it a conditional obligatory positive commandment? Clearly there is a conditional commandment here. The conditional commandment is that if you want to divorce, do it with a bill of divorce, in accordance with the law of Moses and Israel. Now the question is: assuming you want to divorce and the commandment applies to you, what is the nature of the commandment? Is it an affirmative prohibition, such that if you did not divorce then you neglected the positive commandment, but that does not mean that if you did divorce you fulfilled a positive commandment? Or is it both? Meaning, if you divorced then you fulfilled a positive commandment, and if you did not divorce then you neglected the positive commandment. But clearly it is a conditional commandment. That is clear. Okay, so that was briefly, in light of this classification. It was just an exercise to try and see the possibilities regarding the commandment of divorce. Later on I will come to a slightly subtler exercise regarding the commandment of removing leaven on Passover. There I will try—yes, it will be a kind of drill on the conceptual framework I presented here with the types of positive commandments—but before that I want to complete a few more remarks on this issue. We spoke in the class before last—so I finished speaking there about the difference between a positive commandment and a prohibition. And I said that a positive commandment points to a positive state, whereas a prohibition points to a negative state. Right? Then we moved on to the various types of positive commandments, and I said there are four or five types, which I listed in the last class. Now I want to make a few remarks. First remark: we know that among positive commandments there is a distinction between an existential commandment and an obligatory commandment. Is there also such a distinction among prohibitions? What would we say about the standard prohibition we know—is it an obligatory prohibition or an existential prohibition? Obligatory? In what sense? There is neglect and fulfillment. What does fulfillment mean in a prohibition? No, why not. The standard prohibition we know is an existential prohibition. It is not an obligatory prohibition, right? What would be the parallel among prohibitions to an obligatory prohibition? That if you violate it, then you have a transgression—that is built into a prohibition—and if you do not violate it, then you have a commandment. Right? That would be the parallel among prohibitions to an obligatory prohibition, because then you could both fulfill and negate it. But the prohibitions we know, the regular prohibitions, are not like that. If you violate the prohibition, then you have a transgression, and if you do not violate it, nothing happened. Right? That means that the standard prohibition is really an existential prohibition and not an obligatory prohibition. And that is an interesting question—why in fact are there no obligatory prohibitions? Why among positive commandments do we find such a distinction, between existential and obligatory positive commandments, whereas among prohibitions we do not find it? More than that—even something like an affirmative prohibition, the parallel to an affirmative prohibition, right, a prohibition derived from a positive commandment—even that we do not find in the realm of prohibitions. Right? A prohibition such that if you violate it, you violated it, and if you do not violate it, then you fulfilled some kind of commandment. Okay? We also do not find that in the realm of prohibitions. The realm of prohibitions is much less rich than the realm of positive commandments. And the question is why. By the way, I do not have an answer to that. I do not have an answer. One can ask: an existential positive commandment appears as a novelty because instinctively a positive commandment means doing something actively—you are not doing. Right, so there is a novelty there, but why was that novelty introduced only there? Because there is an expectation to do something, and expectation already answers what positive or negative action means—you do it or do not do it. And in a prohibition there is expectation only not to do something. That is the question—why? Why can’t I define prohibition as either an obligatory prohibition or an existential prohibition, two kinds of prohibitions, as we find in positive commandments? Then that would collapse so many things. At first I really thought that if we spoke about an obligatory prohibition, it would basically become like a positive commandment, because what are you really saying? That if you did it, then you have a commandment, and if you did not do it, then you have a transgression. But that is not precise. Why? Let us think for a second about existential and obligatory positive commandments. If you remember, I spoke about—said that the difference between a prohibition and a positive commandment, I mentioned this just now, is that with a prohibition the Torah points to a negative state, and with a positive commandment the Torah points to a positive state. Therefore, when you neglect a positive commandment, that is not a negative act; you are average, neutral, neither positive nor negative. So someone already noted this here, and I said I would get to it later: according to this, really all positive commandments should have been existential. Right? Because an obligatory positive commandment is one such that if you did not do it, then you committed a transgression—not just that if you did do it you have a commandment. According to my definition of a positive commandment, I would have expected all positive commandments to be existential. Sorry—if you did the commandment, you have a commandment; and if not, then you remain average, neither righteous nor wicked. But we know there are existential positive commandments and obligatory positive commandments, and most are obligatory. That means that if you did not do it, then you committed a transgression. So why is that a positive commandment and not a prohibition, not a negative commandment? What distinguishes an obligatory positive commandment from a prohibition? Maybe that it can be fulfilled—but from the point of view of the transgression there is no difference? It is the same transgression. Neglecting a positive commandment is still less severe than a prohibition. Why? With an existential commandment I understand why it is less severe, because there is nothing wrong there—you are just not righteous, okay, but nothing happened. But with an obligatory positive commandment there is also a problem in neglecting it, and that is a transgression. So still, what is the difference between an obligatory positive commandment and a prohibition? The answer is probably—and this is really a subtler definition, but this is what one has to say—just think through the conceptual analysis; there is no escaping it. An obligatory positive commandment is a positive commandment such that if you did not fulfill it, then you committed a transgression. But the transgression is not that you are in a negative state; rather, it is that you are not in the positive state. Except that not being in the positive state, in these particular cases, is considered some sort of transgression. But it is still a different kind of transgression from the transgression of being in a negative state. This is already becoming really strange, because until now I identified positive and negative states with the question whether it is bad to be there or good to be there, right? Now I am analyzing more finely. There can be a state that is a positive state, where being in it is positively valuable, and not being in it is negatively valued—but not because not being in it is itself a negative state, but because I am not in the positive state, and not being in the positive state is a problem in these particular cases. In an existential positive commandment, no—it is not a problem not to be there. You simply are not righteous if you are not there, but there is no problem in your not being there. It follows that the definition of positive and negative states now becomes detached from the question whether there is a transgression or not. There can be a transgression tied to non-presence in a positive state, and a transgression consisting of presence in a negative state. A transgression consisting of presence in a negative state is a prohibition; a transgression consisting of absence from a positive state is neglect of a positive commandment. An obligatory positive commandment. An existential positive commandment cannot be neglected. So then—if that is so—why are there states where not being in a positive state is not a transgression? Like an existential commandment. So Rabbi Avraham Kahana actually claims no, there is no such thing. There are no wholly existential positive commandments; all of them are existential only beyond some threshold. But not a commandment that is wholly existential. And what is the assumption behind that? That failing to be in the positive state is always some kind of transgression. But the accepted view is that beyond some threshold—and he agrees with that—there are states where if I fulfilled it, I fulfilled it, and if not, nothing happened. So the claim is that apparently it is not such a fundamental demand; that is also why there is always a threshold. Because the claim is that the positive state is not such a basic demand that if you do not fulfill it, people already look askance at you. An obligatory positive commandment is a commandment that points to a positive state, but it is a foundational state. Meaning, if you are not in that positive state, then there is some kind of claim against you. True, it is only that you are not in a positive state, not that you are in a negative state—but the basic expectation is that you be in that positive state. And if you are not there, then that is viewed negatively. In certain commandments—what we call an existential commandment—no. The positive state is for the especially righteous, but if you are not there, it is not that there is a claim against you for not being there. Therefore I say: no wonder that usually with an existential positive commandment this appears only beyond a certain threshold. Because up to that threshold it really is a basic demand. If you did not give a third of a shekel a year, or did not read a chapter in the morning and a chapter in the evening in Torah study, then there is a basic claim against you. True, it means you were not in a positive state, not that you were in a negative state—but the basic demand is to be in that positive state. And if you are not there, then people look at it unfavorably. But from a certain threshold onward—okay, I gave some charity, just not more than a third of a shekel—so I am not some supremely righteous saint, but there is no claim against me for not being there. So the existence of a threshold actually fits very well with what I said here. So that is the difference between the transgression of neglecting a positive commandment—where there is such a transgression in an obligatory positive commandment—and a prohibition. But there is another difference between an obligatory positive commandment and a prohibition, and this is the difference between all positive commandments and prohibitions: in almost all positive commandments, except the definitional ones, fulfilling them is a positive commandment. Whereas in a prohibition, refraining from stumbling into the prohibition is not positively valuable, and there is not even any type of prohibition that is defined as a commandment in the sense that refraining from the prohibition is itself defined as a commandment. Right? Think about “do not stand idly by your neighbor’s blood.” One might have said that “do not stand idly by your neighbor’s blood” means that if someone walks by the river, sees his friend drowning and does not save him—that is a transgression. And if someone does save him? One might have said: fine, then he did a good deed, it is a commandment. No. Once it is defined as the prohibition of “do not stand idly by your neighbor’s blood,” then not saving is a negative state, a transgression. Saving him means you did not commit a transgression. It is not viewed as a commandment. Okay? Even though from our perspective someone who exerts effort and saves his friend seems worthy of praise and deserving of some kind of credit—still no. From the standpoint of Jewish law he simply did not commit a transgression. That is all. So this means there is an essential difference between positive commandments and prohibitions, and the essential difference is specifically on the side of fulfillment, not on the side of neglect. On the side of neglect, there is the difference I mentioned earlier: in an obligatory positive commandment, neglect is only neglect of a positive commandment; it is not a prohibition. It is absence from a positive state. A prohibition means being in a negative state. That is the difference on the side of neglect. But on the side of fulfillment there is a categorical difference: with a positive commandment, if you fulfill it, then you have a commandment, you fulfilled a commandment, whether it is existential or obligatory. But with prohibitions, with negative commandments, you do not have a commandment. Incidentally, with an affirmative prohibition—a prohibition derived from a positive commandment—it really is similar to a prohibition in this respect. If you comply, you do not have a commandment; only if you do not comply do you have a transgression. But what kind of transgression is that? That you are not in that state, even though that state itself is not positive. Because being in that state is not a positive commandment in the case of an affirmative prohibition. I am speaking here about a prohibition derived from a positive commandment, “you may lend at interest to a foreigner.” Okay? So in effect, when I lend at interest to a Jew, then I have neglected the positive commandment of “you may lend at interest to a foreigner,” but this is neglect of a positive commandment, not a prohibition. If it is neglect of a positive commandment, what does that mean? That it is not being in a positive state. But it is not as though “lending at interest to a foreigner” is itself a positive state. I have not fulfilled a commandment if I lend at interest to a foreigner. So it is very strange. That means there is here a transgression of neglecting a positive commandment by not being in a positive state, even though the state itself is not really positive. There is only the transgression of not being in that state. So this is already an extremely convoluted definition. Meaning, it is not a negative state such that being in it is a prohibition; the other state is not a positive state such that being in it is a commandment, but not being in that state is a transgression of neglecting a positive commandment. Do you see what a very, very fine resolution we are reaching? But there is no choice—the conceptual analysis of these types of commandments necessarily leads to this conclusion. I do not think there is any way out of it. Even though it really sounds terribly strange, and it is very hard to draw these distinctions in a positive way. Really explain to me what the difference is between a positive and a negative state, non-presence and yes, between a positive state where being in it is not itself positive but only not being in it is negative, and yet this is still defined as not being in a positive state—not as being in a negative state, because otherwise it would be a prohibition. So the whole story becomes very abstract definitions. Could it be that the whole point is that the Torah basically wanted to say that from the positive side it is a positive commandment, like “you shall not abhor an Edomite”? Yes, but that does not solve the question, because I would ask why. Why did it not suffice to say that this is a prohibition, and that this prohibition is positive? That still does not explain the asymmetry between positive commandments and prohibitions, because with positive commandments, when the Torah wants to say it is obligatory, it does not need to add a prohibition; it simply determines that the positive commandment is obligatory. So the question still remains: why? Why is there a difference between positive commandments and prohibitions in this regard? Okay. Therefore I say, Ariel, your suggestion—that we do not find obligatory prohibitions because obligatory prohibitions would basically turn into obligatory positive commandments, there would be no difference—is not correct in light of what I have just said. Because an obligatory prohibition ought to be different from an obligatory positive commandment. An obligatory positive commandment means that if you did it, you were in a state defined as a positive state; and if you did not do it, then you are not in a positive state. That is neglect of a positive commandment, not a prohibition. By contrast, with an obligatory prohibition, violating the prohibition means being in a negative state, and not violating the prohibition means not being in a negative state—and that itself has some positive value—but that still is not called being in a positive state. Therefore, if I really understand that this is the proper resolution—and there is no choice, we have to arrive here based on the analysis I made—then there is a difference between an obligatory positive commandment and an obligatory prohibition. The question is whether in the background there is a state that the Torah defines as a positive state—in which case it will be an obligatory positive commandment—even though not being in that state is problematic; but it is problematic because you are not in a positive state, not because you are in a negative state. By contrast, in an obligatory prohibition, if there were such a thing, violating the prohibition means being in a negative state—not failing to be in a positive state—and fulfilling it means not being in the negative state, which itself has some kind of positive value, but it is not being in a positive state. So yes, this leaves the conceptual difference between an obligatory positive commandment and an obligatory prohibition intact, and leaves us with the question: then why indeed do we not find obligatory prohibitions, since there is conceptual room for such a definition? So the question is why we do not find it. I don’t know. I have no answer. Maybe it just happened by chance that there are no such states—meaning no negative states, yes, that could be. Very often when we find some phenomenon we are used to looking for an essential explanation, but sometimes it can simply be a result of happenstance. If we do not find any overweight person in a certain room, what does that say about the room? We did not find an obligatory prohibition because the Torah happened not to have such a case that would be defined as an obligatory prohibition. But it does not have to mean that essentially it cannot exist, that categorically there cannot be an obligatory prohibition. It can be. I don’t know. That is how it seems from the analysis, because conceptually there is room for such a definition. Maybe one more remark connected to this: if you remember, we saw in Nachmanides on Parashat Yitro that there is an asymmetrical relationship between more important and less important commandments, and the whole relation between prohibition and positive commandment. And the claim was—as the Sdei Chemed explained—that fulfilling a positive commandment is on a higher level than refraining from a prohibition. But neglecting a positive commandment is less negative than violating a prohibition. And this is not contradictory; on the contrary, usually when there is a more important commandment, refraining from it is a lighter transgression. Fulfilling it is very significant, but refraining is a lighter transgression. These are two sides of the same coin, not a contradiction. Okay, and there I explained contradictions that appear in Nachmanides in light of this, the question whether he says that a positive commandment is more important than a prohibition, and that is why a positive commandment overrides a negative commandment. That is what he says there. But that does not explain why a positive commandment overrides a negative commandment. Because in a case where a positive commandment overrides a negative commandment, I basically have—say I need to eat matzah and I only have flour from the new grain, which is not permitted until the day after Passover. So on the night of Passover, the first night, I am still forbidden to eat from the new grain until the day of the waving of the omer. Okay? Now the question is—I have no other flour. Should I make the matzah from the new grain? The rule is that a positive commandment overrides a negative commandment: the positive commandment of eating matzah overrides the prohibition of new grain. Okay? Let us try to understand why a positive commandment overrides a negative commandment. Nachmanides says it is because a positive commandment is more important than a negative commandment. What does “more important” mean? We saw that on the side of fulfillment it is more important; on the side of neglect it is less severe, less negative, okay? Now suppose I have two… I am comparing two options. One option is to bake the matzah from the new grain. What happens in that case? I fulfill the commandment of eating matzah, and I violate the prohibition of eating new grain, right? Meaning I fulfilled a positive commandment, which is a high positive value, but I violated a prohibition, which is a high negative value. So overall they cancel each other out to zero, let us say for the sake of discussion. Okay? What happens on the other side? There is a low negative value of neglecting the positive commandment of eating matzah—say if I do not eat matzah because I do not want to stumble into the prohibition of new grain, right? So I have a low negative value because this is only the transgression of neglecting a positive commandment; it is not a prohibition. And I also have a low positive value because this is only refraining from a prohibition, not fulfilling a commandment. And again they cancel each other out, and again it is zero. So if a positive commandment is more important than a negative commandment, why is the conclusion that a positive commandment overrides a negative commandment? In the end they cancel out. On the side of fulfillment, the positive commandment is more important; on the side of neglect, the prohibition is more important. So whenever I have a confrontation between something important and something less important, the question is whether I am looking at the side of fulfillment or the side of neglect. And in the equation here, the fulfillments… the fulfillment is canceled by the neglect. There is one option to perform an important fulfillment and a very negative violation; the second option is to perform a minor fulfillment with a minor transgression. So minus one and plus one equals zero, and minus one-half and plus one-half also equals zero. So if you are comparing zero to zero, why is it preferable to fulfill the commandment at the price of violating a prohibition rather than not fulfill the commandment and not violate the prohibition? On that arithmetic it still does not work out. So I said that it does work out, because—and this is due to the asymmetry I just discussed—because refraining from a prohibition is not a commandment at all. It is not that it is a commandment but less important than a positive commandment. It is not a commandment at all; it has no positive value, not even a small positive value. That is the asymmetry between prohibitions and positive commandments that I discussed earlier. Therefore, when you perform the commandment, then you are speaking… then you are basically fulfilling an important commandment: plus one; violating a significant prohibition: minus one; and the result is zero. If you do not eat matzah, then you have neglect of a positive commandment, which is minus one-half, a lighter transgression, but you do not have the “commandment” of not eating new grain; not eating new grain is zero. So really you have minus one-half as against zero, and therefore it is preferable to fulfill the commandment even at the price of a prohibition. That is how I explained Nachmanides there. Now look—let us take this further and talk about an existential positive commandment. Remember I brought from the Ra’avad at the beginning of the Sifra that the Ra’avad claims that even an existential positive commandment overrides a negative commandment. He is discussing time-bound positive commandments for women, and that women may perform leaning on sacrifices voluntarily. And he says that an existential positive commandment, even though you are not obligated to do it, overrides a prohibition. You may fulfill it at the cost of a prohibition, even though you have the option not to fulfill it and there will be no neglect of a positive commandment. But you may fulfill it. And the question is why. Why can an existential positive commandment override a prohibition? Do not do it—in any case there is no claim against you, because it is an existential positive commandment—and at least then you will not violate the prohibition. Fine, when you are obligated to do the positive commandment, then you have no other way out, so even at the price of a prohibition you do it. But if it is an existential commandment, then why fulfill it at the price of a prohibition? What I just said may perhaps help explain it. Why? Which is higher: an existential positive commandment or an obligatory one? Obligatory. Obligatory? I think existential. An obligatory positive commandment is more basic. It is more basic, and therefore if you do not do it there is a claim against you. You did not do basic things. Why is there no claim regarding an existential positive commandment? Because someone who does that has to be especially righteous. Not especially righteous—there is simply no claim in your not being especially righteous; you are just not especially righteous, you are a smaller righteous person. Okay? In other words, usually—and this is the same asymmetry we saw also in Nachmanides between prohibition and positive commandment—when there is a commandment for which there is no claim against you if you did not do it, that is probably a commandment of greater righteousness. Then if you did not do it, there is no claim—fine, not everyone is at that exalted level. But if it is a basic thing and you did not do it, there is a claim against you. But if you did do it, then it is basic. It does not earn you the chief of staff’s citation over it. Okay? Meaning there is an asymmetry between the side of fulfillment and the side of neglect also in positive commandments. The more elevated spiritually, the more saintly the commandment is, the less there is a claim if you do not do it. Fine, you are not on such a high level. And conversely, if there is a claim against you for not doing it, then an obligatory positive commandment is generally the less significant positive commandment. Therefore he says: look, that is a basic level. If you do it, then it is not… if you do not do it, then that is not okay, because it is basic, it is a demand made of everyone. Okay? So if that is so, one could understand why the Ra’avad says that an existential positive commandment overrides a prohibition. If an obligatory positive commandment overrides a prohibition, and the fulfillment of an obligatory positive commandment is a minimal fulfillment, relatively minor, and that overrides a prohibition—then an existential positive commandment, which is a higher fulfillment, certainly overrides a prohibition. Right? Because the fulfillment—if I look at the side of fulfillment, I am looking at the side of fulfillment—an existential positive commandment is a much greater value, so it certainly overrides a prohibition. I am doing this intentionally because I am looking at the side of fulfillment and not at… Why do we think that an existential positive commandment does not override a prohibition? Because we are looking at the side of neglect. We say: when you do not fulfill an existential positive commandment, nothing happened, so why should you care? Do not fulfill it. No. Look at what happens if I do fulfill it. If I do fulfill it, and it is an existential positive commandment, then I have reached a very, very high level, and that is worth even the price of a prohibition. Even the price of violating a prohibition. Therefore the Ra’avad says that existential positive commandments too override prohibitions. The rule that a positive commandment overrides a negative commandment applies to them as well. And perhaps that is the dispute over whether, in the rule that a positive commandment overrides a negative commandment, we are looking at the side of fulfillment or at the side of neglect. Now I want to move to a final remark on this topic of classifying positive commandments, and that is a distinction made by the Minchat Chinukh, an interesting distinction. Okay. There is a Talmudic discussion in tractate Sukkah 9. The Talmud brings a source for disqualifying a stolen sukkah. It says, “You shall make for yourself the festival of Sukkot”—“for yourself,” from your own. Right, a stolen sukkah is disqualified. Tosafot there on page 9 asks: that verse is needed to exclude stolen property. It is difficult—let it instead be derived from the fact that this is a commandment that comes through a transgression, for for that reason we disqualify a stolen etrog on the second festival day later on at the beginning of the chapter “The Stolen Lulav.” Why do you need a verse to tell me that a stolen sukkah is disqualified? If you sit in a stolen sukkah, that is a commandment that comes through a transgression, and that in itself disqualifies the commandment. So why do I need a verse? Why do you need a verse disqualifying a stolen sukkah? For that very reason they indeed disqualify a stolen etrog; there one does not need a verse disqualifying a stolen etrog—quite the reverse. And the Talmud there at the beginning of “The Stolen Lulav,” what does it say? There too the discussion itself is difficult, for it says: granted, on the first festival day we need “for yourselves,” meaning from your own, but on the second day why? And it answers: because it is a commandment that comes through a transgression. So if so, why do I need “for yourselves,” from your own? The same thing that happens in the Talmud regarding the stolen lulav in the third chapter of Sukkah: the Talmud discusses the disqualification of a stolen etrog, or stolen four species. The Talmud says that there too it says, “And you shall take for yourselves”—“for yourselves,” from your own. The Talmud asks: what do I need this for? After all, it is a commandment that comes through a transgression. The Talmud answers: no, a commandment that comes through a transgression disqualifies the etrog on the second day. Because on the second day there is no disqualification of “for yourselves”; for example, a borrowed etrog on the second day is valid. On the first day it is not, because it is not yours. And a stolen etrog will be disqualified even on the second day—why? Because it is a commandment that comes through a transgression. There is no issue of “for yourselves,” it does not have to be yours. But there is a problem of a commandment that comes through a transgression. Then Tosafot asks: if so, then I do not understand why one needs a verse to disqualify the etrog on the first day—let it be derived from the fact that it is a commandment that comes through a transgression. Tosafot says: however, there one can answer that it is needed to exclude a borrowed one. We need the verse “for yourselves”—true, a stolen one would be disqualified because it is a commandment that comes through a transgression. But what about a borrowed sukkah? A borrowed etrog? On the first day it is disqualified—why? It would not have been disqualified due to a commandment that comes through a transgression. It is disqualified because of “and you shall take for yourselves,” from your own. Therefore one needs the verse “for yourselves,” from your own. But with regard to sukkah, one cannot answer this way according to the rabbis, who say later in the chapter “The Sleeping” that a person can fulfill his obligation in another person’s sukkah. And they derive this from the verse, “All native Israelites shall dwell in sukkot,” teaching that all Israel are fit to dwell in one sukkah. There is an explicit verse saying that although “You shall make for yourself the festival of Sukkot”—“for yourself,” from your own—this comes only to exclude stolen property. Borrowed property counts as yours with regard to a sukkah. With an etrog, no; but with a sukkah, yes, because this is learned from “All native Israelites shall dwell in sukkot.” Fine? That is what Tosafot says. So we are back to the question. Regarding the etrog, I understand why a verse is needed in order to disqualify a borrowed etrog on the first day. Why do I need the concept of a commandment that comes through a transgression? To disqualify the etrog on the second day. So with etrogs, we are all set. What about sukkah? Since a borrowed sukkah is valid, why does it say, “You shall make for yourself the festival of Sukkot,” to exclude a stolen one? A stolen one would in any case always be disqualified because it is a commandment that comes through a transgression. Why is an additional verse needed? Tosafot answers: because the reason of a commandment that comes through a transgression is not Torah law but rabbinic. Is it Torah law or rabbinic? Right. A commandment that comes through a transgression is only a rabbinic disqualification. Here they want to tell me that the sukkah is disqualified at the Torah level, and therefore they bring a verse on this matter. But that is a rather solitary opinion among the medieval authorities (Rishonim). Most of them say that a commandment that comes through a transgression is a Torah-level disqualification. They derive it—it doesn’t matter—from various places. There is a verse there, after all: if one steals a se’ah of fine flour and bakes it, and so on—I do not remember exactly—there is a verse about that. So according to most opinions, a commandment that comes through a transgression is a Torah-level disqualification. If so, Tosafot’s question returns. Why then do we need the verse disqualifying a stolen sukkah from “You shall make for yourself the festival of Sukkot,” “for yourself,” from your own? Let it be derived from the fact that it is disqualified because it is a commandment that comes through a transgression. The Minchat Chinukh there, in commandment 325, section 9, opens a discussion of all the types of commandments we have been talking about, and that is why I am bringing it here. He arrives at a fascinating conclusion. “It seems to me that there are two kinds of positive commandments. One is an obligation upon the person of every Jew, such as phylacteries, etrog, and eating matzah. Such a commandment, if one fulfills it, one does the will of the Creator, blessed and exalted be He, for so the King, blessed be He, commanded him. And if one neglects the commandment and does not put on phylacteries or does not take the lulav, then one neglected the commandment and acted against His blessed will, and will be punished. There are also commandments for which there is no obligation to do them, such as fringes, for the Torah did not obligate him to wear a four-cornered garment. If he wants, he may go without a four-cornered garment and is not acting against the will of the Creator, blessed be He. But if he brings himself into obligation—intentionally wearing four corners in order to fulfill the commandment of fringes—this is the good and upright path.” We saw this, right—that it is ideal. Fine? What is this? This is not a distinction between an obligatory positive commandment and an existential positive commandment, right? Fringes are not an existential positive commandment. Rather, it is a distinction between an obligatory commandment and a conditional obligatory commandment. Because in fact the commandment of fringes can be neglected, right? An existential positive commandment cannot be neglected. In other words, it is a conditional obligatory positive commandment. In his formulation it is not entirely clear whether he senses this distinction, but that is the real definition. “And likewise this commandment, namely sukkah, has two parts to the commandment. Namely, on the first night of Sukkot, there is a positive commandment to eat an olive’s bulk in the sukkah, and one is obligated to seek out a sukkah just as one seeks after a sukkah, and if he does not want to eat, that does not help. For he is obligated to eat, like matzah and phylacteries. And if he did not fulfill the positive commandment on the first night, he acted against His blessed will.” Meaning, on the first night, eating an olive’s bulk of bread in the sukkah is an obligatory positive commandment. You have to eat. “By contrast, on the remaining nights and days, if he wishes he may refrain from eating and not sit in the sukkah, and there is no longer an obligation upon him, like fringes. But if he does eat, there is a positive commandment to eat in the sukkah and he fulfills His blessed will. But if he does not eat, there is no obligation.” He does not go all the way into the question of how one neglects it. Is eating in the sukkah on the remaining days an existential positive commandment? A conditional obligatory one, right? Not existential. Where is the indication? Where is the indication? If it were an existential positive commandment, how would that differ from a conditional obligatory one? Meaning? How do you neglect it? Right. If one eats outside the sukkah. If this were an existential positive commandment, then if one ate outside the sukkah, nothing happened—we did not perform a commandment, but nothing happened. But it is a conditional obligatory positive commandment. If you want to eat, then you must eat in the sukkah. You ate outside the sukkah—that is neglect of a positive commandment. If you do not want to eat at all, then do not eat. On the first night, you have to eat. You do not have the option of saying, “I do not want to eat, so there is no problem.” No—you have to eat. There is some discussion among the later authorities (Acharonim) whether you have to eat in order to become obligated in sukkah, or whether you have to eat because of the festival itself, except that on Sukkot one eats in the sukkah. Existential. Yes, the question is not that—it is two definitions of an obligatory positive commandment. The question is what the obligatory commandment is here. Is the obligatory commandment to eat, except that on Sukkot eating is done in the sukkah? Or is the obligatory commandment to make use of the sukkah on the first night, and how does one use the sukkah? By eating. Fine? There are practical differences—it does not matter right now—but that is the question: what exactly is the obligation? For example, suppose you have no sukkah. Here is a practical difference. You have no sukkah at all, none. You are on a deserted island, there are no sukkot, nothing. Do you still have a commandment to eat an olive’s bulk of bread on the first night? According to the definition that the commandment is to eat, except that eating is done in the sukkah, then you have a commandment to eat. You will not be able to fulfill the sukkah aspect, but the commandment to eat still applies. Whereas if the whole point of eating is just to become obligated in the sukkah, simply an obligation to use the sukkah on the first night, then on a deserted island where there is no sukkah there is no point in eating the olive’s bulk of bread. So that is the introduction. Now he says: “And in these two commandments too, there is a case in which one neglects the commandment and acts against His will, just as when one does not put on phylacteries.” What does he mean? Here he makes the distinction between an existential positive commandment and a conditional obligatory positive commandment—the thing many later authorities confuse. Here he makes the distinction. What does that mean? “And there is also a case in which one neglects the commandment and acts against His will,” meaning that even in a conditional obligatory commandment there can be neglect of a positive commandment. There is neglect of a positive commandment. It is not like an existential positive commandment. And when he says, “And there is a case too in which one neglects the commandment and acts against His will, just as when one does not put on phylacteries,” he means that as with an obligatory positive commandment, not doing it is a transgression. “For example, if one wears a four-cornered garment and does not place fringes on it, then he transgresses the commandment. Likewise if one eats a substantial meal outside the sukkah, he transgresses the commandment. The rule is that if he does the commandment, he fulfills the commandment every time and does His blessed will; and there are cases where one does not fulfill the commandment and transgresses His will, such as one who wears a four-cornered garment or eats a substantial meal outside the sukkah; and there are cases where one does not fulfill the commandment and also does not transgress, such as one who does not wear the garment and does not eat at all. And this is simple.” Meaning: this passage is where he makes the distinction between an existential positive commandment and a conditional obligatory positive commandment. The difference is that in an existential positive commandment there are only two states: either fulfilling the commandment or neutral—not doing anything. In a conditional obligatory positive commandment there are three states: fulfillment of the commandment, nothing—you do not want to eat, or you do not want to wear a four-cornered garment—and neglect of the commandment: if you wore a four-cornered garment and did not put on fringes, or you wanted to eat and did not eat in the sukkah. So here there are three states. Now he says, “And behold it seems”—now he turns to resolve Tosafot’s question from above. Tosafot asked, to remind you, why is a verse needed to disqualify a stolen sukkah? Let it be derived from the fact that it is a commandment that comes through a transgression. “And behold it seems that the reason one does not fulfill one’s obligation in the case of a commandment that comes through a transgression is that the Holy One, blessed be He, does not want that, and it is not accepted before Him, for the defender becomes the accuser. See Ran, chapter ‘The Stolen Lulav,’ and ‘I the Lord hate robbery in a burnt offering’”—right, that is the verse—“I the Lord hate robbery in a burnt offering.” So what is he saying, basically? Why does a commandment that comes through a transgression disqualify the commandment? Because when you steal a burnt offering and then offer it, it is not accepted favorably before the Holy One, blessed be He. He does not want commandments like that. What are you doing—immersing while holding a creeping thing in your hand? You perform commandments for Me while trampling over transgressions in order to fulfill My will? My will is that you not commit transgressions. Therefore a commandment that comes through a transgression is not accepted favorably before the Holy One, blessed be He. The medieval authorities (Rishonim) already discuss that in the case of a positive commandment overriding a negative commandment, this is not so. A positive commandment overriding a negative commandment means I fulfill the positive commandment even at the price of violating the prohibition. So why is that not a problem while a commandment that comes through a transgression is? What is the difference? Never mind—those are different positions among the medieval authorities. In any case, however, it is not what the Holy One wants. “And behold, for this reason it makes perfect sense to say that he did not fulfill the commandment, because this is not the will of the Creator, blessed be He, and therefore he did not fulfill the commandment. And thus this makes perfect sense in an obligatory commandment: since he did not fulfill the obligation of the commandment, it follows that he did not perform the commandment and neglected it, because these depend on each other, as we wrote.” Meaning: in every obligatory commandment—say, putting on phylacteries, that is an obligatory positive commandment—if you did not fulfill the commandment of phylacteries, say you took stolen phylacteries, then this is a commandment that comes through a transgression, so you did not fulfill the commandment of phylacteries. Do you also have neglect of a positive commandment? You have no commandment, because the commandment is not acceptable before the Holy One, blessed be He. Is there here also the transgression of neglecting a positive commandment? The answer is yes, because neglect of a positive commandment means failure to fulfill the commandment—you cannot separate the two. If you did not fulfill the commandment, that itself is the transgression of neglecting the positive commandment. But, he says, “in a commandment that is not obligatory, such as fringes and sukkah on the remaining days of the festival”—what does “not obligatory” mean? Again: conditionally obligatory, not existential—“such as fringes and sukkah on the remaining days of the festival—if they come through a transgression, it is true that he did not fulfill the will of the Creator, blessed be He, because this is not His will. The Holy One does not want you eating in a stolen sukkah. For the sake of the commandment of sukkah, you are not to violate the prohibition of theft. So it is not what the Holy One wants; that is obvious. But nevertheless he has not neglected the commandment, he simply has not fulfilled it; and it is as though he did not wear the garment at all, or did not eat at all, in which case he neither neglected nor fulfilled. So too here: granted, he did not fulfill the commandment, because in this way it is not acceptable before Him, but nevertheless he did not neglect. We cannot judge him as one who eats outside the sukkah or wears a garment without fringes. Rather, he is like one who does not perform the commandment at all and goes without the garment or does not eat at all. For in truth he is wearing fringes”—in stolen fringes, right?—“and is eating in a sukkah, except that it is not acceptable before Him, blessed be He; so it is as if he did not fulfill the commandment, but we cannot judge him as if he neglected the commandment, since in any case he is doing the deed of the commandment. Look closely and understand.” This is a brilliant distinction. All the later authorities disagree with him, but I actually think there is a lot of logic in it. He wants to claim the following. In an obligatory positive commandment—say phylacteries, an obligatory positive commandment—if you did not fulfill the commandment of phylacteries because they were stolen, then that is a commandment that comes through a transgression. In principle, one could say that he has no fulfillment of the commandment, but he does not have neglect of the positive commandment of failing to put on phylacteries. Theoretically, conceptually, one could say that even in an unconditioned obligatory positive commandment. But he thinks one can say it only in a conditionally obligatory positive commandment, because only there is there by definition some intermediate state in which you did not perform the commandment but still there are no claims against you for neglecting a positive commandment. Now true, that state is usually where you did not eat at all on Sukkot, or where you did not wear a four-cornered garment at all. Here you did eat, and you ate in an invalid sukkah. Therefore Rabbi Chaim and Rabbi Shimon and all the later authorities disagree with him and say, what are you talking about—Rabbi Shmuel, everyone says this cannot be. Since in the end what is required of you is—the commandment is to eat in the sukkah. If you did not fulfill the commandment, that is called neglect of a positive commandment. Because this is an existential commandment. If it were an existential commandment, I would understand—except that with an existential commandment there is no… with an existential commandment done through a transgression, right? Then clearly there is no commandment but also no transgression, because one cannot neglect an existential commandment. It has fulfillment but no neglect. So do not do it, because what you did you received for at the Torah level, but not… No, Tosafot there gives another answer. Why a commandment that comes through a transgression… But in principle they do go like Tosafot. If a commandment that comes through a transgression were a Torah prohibition, that is what Tosafot would say. Therefore he is forced to say it is rabbinic, and they too would agree it is rabbinic. But in practice you did the commandment if you ate in the sukkah. What? You did the commandment if you ate in the sukkah. At the Torah level; rabbinically it is disqualified. That is how Tosafot answers. It depends a bit on the question in Sukkah page 4, where Tosafot says there that whoever does not fulfill the rabbinic requirement has not fulfilled even the Torah requirement, did not discharge even the Torah-level obligation. But without that, the Ran there disagrees, then yes—you fulfilled the Torah requirement, just not the rabbinic one. And that itself is the answer, because if a commandment that comes through a transgression were Torah-level, then indeed the verse disqualifying a sukkah would be superfluous. In that sense, those later authorities are like Tosafot. The Minchat Chinukh offers an alternative proposal to Tosafot, and that they do not accept. And why they do not accept it one can understand, because the Minchat Chinukh basically wants to argue this: true, in a conditionally obligatory positive commandment there is an intermediate state in which you did not fulfill the commandment but also did not violate the prohibition. But this is not that state. That is when you did not eat at all on Sukkot, or when you did not wear a four-cornered garment at all. Then indeed you never entered the obligation, so of course you did not fulfill the commandment, you have no commandment, but there are no claims against you because you were not obligated to fulfill the commandment. Here, however, you did eat, and you ate in a sukkah. And someone who eats during Sukkot must eat in a sukkah. The Minchat Chinukh claims: he must eat in a sukkah; he does not have to fulfill the commandment of eating in a sukkah. He must eat in a sukkah—and I ate in a sukkah. The commandment, true, I do not have. The other later authorities claim: what nonsense. There is no such thing. Eating in a sukkah means fulfilling the commandment of eating in a sukkah. If you did not fulfill the commandment, that is neglect of a positive commandment, since it is a conditionally obligatory positive commandment. A conditionally obligatory positive commandment means that if you entered the obligation, entered circumstances in which you are obligated in it, and you did not fulfill the commandment, then you have neglect of a positive commandment. It is not like an existential commandment where if you do it you have a commandment and if you do not do it nothing happened. It is conditionally obligatory. The Minchat Chinukh wants to claim that in a conditionally obligatory positive commandment, even when you have entered the obligation, when you are already in circumstances in which you are indeed obligated, it is possible to separate the question of whether you fulfilled the commandment from the question of whether you neglected that positive commandment. It could be that you did not fulfill it. “And one who eats outside the sukkah or wears a four-cornered garment and does not want to place fringes on it is coerced until he dies, like all positive commandments.” Someone who wants to eat during Sukkot and does so outside the sukkah is coerced to do it inside the sukkah, because one coerces regarding positive commandments until he dies. “But in such a case as this, where it is like one who does not wear the garment at all or does not eat at all, then he is not coerced. If he wanted to eat in such a sukkah, is he coerced? He says no. Why? Because he has no transgression of neglecting a positive commandment. He claims that coercion is not for the sake of fulfilling the positive commandment but in order not to violate neglect of the positive commandment, and here you are not violating neglect. Remember, like a positive commandment overriding a negative commandment—we discussed whether in that rule we look at the side of fulfillment or the side of neglect. Here too there could be the same difference. The question is whether coercion to fulfill a positive commandment is in order that you fulfill the positive commandment, or in order that you not violate neglect of the positive commandment. He takes it as being in order that you not violate the neglect. Therefore here, since you do not violate, one does not coerce. “But that is if we say this only because it is a commandment that comes through a transgression. But if the Torah explicitly disqualified stolen property, then it is like one who used invalid roofing material that does not grow from the ground or can contract impurity, in which case it is no sukkah at all. And if he eats there, it is as though he eats in his house. Since the Torah decreed that stolen property is not a sukkah at all, this resolves it nicely: for if it were only because of a commandment that comes through a transgression, then if he sat in such a sukkah, true he would not have fulfilled the commandment, but he would not have neglected it. But now the Torah revealed that stolen property is invalid, and therefore it is as though he neglected the positive commandment, as one who eats in his house. Therefore the Torah wrote ‘for yourself’ to exclude stolen property with regard to sukkah and with regard to fringes. So it seems to me in my poverty of understanding.” What is he saying? Tosafot asked: why is a verse needed to disqualify a stolen sukkah? It is a commandment that comes through a transgression. He answers: no. If it were only because of a commandment that comes through a transgression, then I would think there is no commandment, but one does not coerce him, because he did not eat outside the sukkah. The Torah comes and says, “You shall make for yourself the festival of Sukkot,” from your own. Meaning, a stolen sukkah is an invalid sukkah. It is not only that the act of commandment that you performed is invalid in the person; rather, there is a defect in the object. It is like a sukkah that is invalid because the roofing material can contract impurity. Okay? Once you ate in such a sukkah, that is like eating outside the sukkah, eating in the house. So one does coerce him, and therefore the verse is needed. That is his answer to Tosafot’s question. Of course Tosafot does not accept this, since he needed another answer. But this is basically his answer, in Tosafot’s terms, to Tosafot’s question. “The principle is that a commandment that comes through a transgression means that the commandment is a commandment, only it comes through a transgression. Therefore the sukkah is indeed a sukkah, only it is not counted favorably. But nevertheless he is not sitting outside the sukkah and is not neglecting the commandment. But what the Torah disqualified—if the Torah disqualified a stolen sukkah, then it follows that it is not a commandment-object at all, and he transgresses by sitting outside the sukkah. Turn it over and over, for in my humble opinion these matters are correct and true.” So basically there really is a very great novelty here, which again adds yet another layer to our resolution: there is a difference, in an obligatory positive commandment—at least a conditionally obligatory one—between the question whether you fulfilled the commandment and the question whether you committed a transgression. In principle one could say this also regarding an unconditioned obligatory positive commandment. Say someone put on stolen phylacteries. That is a commandment that comes through a transgression. In principle one could have said that he has no fulfillment of the commandment, but he has no neglect of the positive commandment of not putting on phylacteries. Theoretically, conceptually, one could say this even in an unconditioned obligatory positive commandment. But he thinks one can say it only in a conditionally obligatory positive commandment, because only there is there by definition a state where you did not perform the commandment but also do not have the transgression of neglect. And likewise, what about the first night of Sukkot? On the first night of Sukkot there is a commandment to eat an olive’s bulk of bread in the sukkah, right? What happens if I do it in a stolen sukkah? If there is a verse disqualifying a stolen sukkah, then there is no question, because that disqualifies the sukkah on the other days too. But without the verse, if there were only a commandment that comes through a transgression, what would happen on the first night? Is there neglect of a positive commandment? The Minchat Chinukh would say that there it would not help, and you would have to go back and eat an olive’s bulk of bread, even though in principle one could have said that while true, you did not fulfill the commandment, but you have no neglect of a positive commandment—you did not eat outside the sukkah. So there is no neglect, only non-fulfillment. The Minchat Chinukh is unwilling to say that, because there it is an unconditioned obligatory positive commandment: eating an olive’s bulk of bread on the first night. It may be that the explanation here is as follows. Suppose I ate an olive’s bulk of bread on the first night in a stolen sukkah. Then I do not have the commandment, right? But the commandment still rests on me; I did not fulfill it. So I still need to fulfill it. I still lack the fulfillment, right? Because it is an obligatory commandment, not an existential one. I have to fulfill it. Okay? Therefore I do not know whether to call that neglect of a positive commandment, but clearly I would still have to eat an olive’s bulk of bread in a valid sukkah, because I did not fulfill that commandment. It is an obligatory commandment. It is not like someone who ate in a stolen sukkah on the second day. Someone who ate in a stolen sukkah on the second day would not have to go back and eat again in a valid sukkah, because he does not have to eat at all. But on the first night, in that sense the Minchat Chinukh is correct—not because one cannot distinguish between the question whether you fulfilled a commandment and the question whether you have neglect of a positive commandment. One can make that distinction. It may be that you did not fulfill the commandment, but you still do not have neglect of a positive commandment. But it is enough that you did not fulfill the commandment to say: okay, you did not fulfill the commandment, you still have to go back and fulfill it. In that sense—not in the sense that you will be punished in heaven for neglect of a positive commandment, but in the sense that you will have to sit down and eat in the sukkah again in order to fulfill the commandment of eating, because you did not discharge your obligation, you did not fulfill the commandment. As for discharging one’s obligation, clearly what matters is fulfillment of the commandment, not absence of neglect. Right? When I get to heaven, will they have a claim against me for eating outside the sukkah? Maybe not. Even on the first night, maybe not. But they certainly will if I did not go back and eat again—then they will have a claim against me for not fulfilling the commandment that I was supposed to fulfill. So in that sense he is right that there is a difference between an unconditioned obligatory commandment and a conditionally obligatory one. But that is only a technical matter: with an unconditioned obligatory positive commandment, if you did not discharge your obligation, then you have to go back and do it. With a conditionally obligatory one, discharging the obligation is not a standing issue—if you are in the relevant circumstances, do it; if you are not in the circumstances, do not do it. Okay? Fine, let us stop here. The exercise regarding removing leaven will be in the next class. So next week there are no classes, I think, right? It’s the elections. So the week after that.