BACKGROUND TO THE DAILY DAF
in memory of Reb David ben Aharon Ha'Levi Rosenwald z"l
Rosh Kollel: Rabbi Mordecai Kornfeld
[141a - 38 lines; 141b - 37 lines]
We recommend using the textual changes suggested by the Bach and the marginal notes of the Vilna Shas. This section is devoted to any OTHER important corrections that Acharonim have pointed out in the Gemara, Rashi and Tosfos
 Gemara 141a [line 4]:
The words "Ki ka'Tani Masnisin" כי קתני מתניתין
should be "Ki ka'Tani Masnisa" כי קתני מתניתא
(as above and as it appears in the Warsaw edition of the Shas)
 Rashi 141a DH u'Veitzim וביצים:
The words "b'Rov Kanim" ברוב קנים
should be "k'Rov Kanim" כרוב קנים
 Rashi 141a DH Lo Tzericha, d'Avar v'Shaklei לא צריכא דעבר ושקליה:
The words "Su Lo Ka'i b'Apei (with a "Heh") Asei d'Taharas Metzora" תו לא קאי באפיה עשה דטהרת מצורע
should be "Su Lo Ka'i b'Apei (without a "Heh") Asei d'Taharas Metzora" תו לא קאי באפי עשה דטהרת מצורע
 Rashi 141a DH v'Heshiv Es ha'Gezelah והשיב את הגזלה:
should be DH Lo Sigzol, v'Heshiv Es ha'Gezelah לא תגזול והשיב את הגזלה
1) [line 19] אין עשה דוחה לא תעשה ועשה EIN ASEI DOCHEH LO SA'ASEI V'ASEI (ASEI DOCHEH LO SA'ASEI)
(a) When an Isur Lo Sa'aseh prohibits a certain action that prevents a person from performing a Mitzvas Aseh, the Torah states that the Aseh is able to "push aside" the Lo Sa'aseh. For example, when a person wants to wear a four-cornered linen garment, the Isur of Sha'atnez prohibits attaching woolen threads to it. However, the Mitzvah of Tzitzis requires adding threads of Techeles (that are made of wool) to this garment. The Torah commands that in this case the Mitzvas Aseh overrides the Lo Sa'aseh.
(b) The Tana'im argue as to the source of this Halachah. Some learn it from the fact that the Torah specifically wrote the Mitzvah of Tzitzis and the Isur of Sha'atnez as adjacent verses (Semuchin), an indication that the Mitzvah of Tzitzis overrides the Isur of Sha'atnez (Yevamos 4a). Others learn it from different sources (Yevamos 5a, Nazir 41a, 58a).
(c) Even though an Aseh normally overrides a Lo Sa'aseh, this is not the rule in every case. The Gemara explains that in certain instances, the Aseh does not have the power to override the Lo Sa'aseh. Some examples are:
1. A Lo Sa'aseh that is punishable by Kares is not pushed aside by an Aseh (Yevamos 3b).
2. An action that is prohibited by both a Lo Sa'aseh and an Aseh, is not pushed aside by a different Mitzvas Aseh (Chulin 141a). This is the case of our Gemara, where the Aseh of Yibum does not override the Lo Sa'aseh of a Kohen Gadol marrying an Almanah and the Isur Aseh of a Kohen Gadol not marrying a Be'ulah.
3. Only in a case where the performance of the Aseh coincides with the transgression of the Lo Sa'aseh did the Torah command that the Aseh takes precedence. If performance of the Aseh is only accomplished after the transgression of the Lo Sa'aseh, the Lo Sa'aseh is not pushed aside (Shabbos 133a). (There are those who write that if a person begins to perform a Mitzvas Aseh while transgressing a Lo Sa'aseh, even though the Aseh is not yet completed by the time the Lo Sa'aseh is transgressed, it pushes aside the Lo Sa'aseh - NIMUKEI YOSEF to Bava Metzia 33a).
4. If it is possible to perform the Aseh, in the case under discussion, without transgressing the Lo Sa'aseh (by performing the Aseh in a different way or at a different time), the Aseh does not push aside the Lo Sa'aseh (Yevamos 20b - see TOSFOS YESHANIM to Shabbos 25a). (The Rishonim argue as to whether an Aseh pushes aside a Lo Sa'aseh when it is possible to perform the Aseh without transgressing the Lo Sa'aseh, through the use of a certain item that the person does not currently have the means to obtain (RASHBA to Yevamos 4b).
(d) The Rishonim explored the possibility that an Aseh also does not push aside a Lo Sa'aseh in other cases:
1. When one person performs a Mitzvas Aseh by doing a certain action in which two people transgress the Lo Sa'aseh.
2. When the action is prohibited by two Mitzvos Lo Sa'aseh, and not only one (TOSFOS to Yevamos 3b DH Lo Sa'aseh).
3. When the action is prohibited in another instance by a Lo Sa'aseh and an Aseh, even though in the case at hand there is only a Lo Sa'aseh that prevents it (TOSFOS to Kidushin 34a DH Ma'akeh).
2) [line 19] דעבר ושקלה לאם D'AVER V'SHAKLAH L'EM - [we are referring to a case] where he transgressed the prohibition and took the mother bird
3) [line 19] דלאו, עבריה D'LAV, AVREI - the negative commandment, he has already transgressed
4) [line 21] קיימו ולא קיימו / בטלו ולא בטלו KIYEMO V'LO KIYEMO / BITLO V'LO BITLO (LAV HA'NITAK L'ASEH)
(a) A Lo Sa'aseh she'Nitak l'Aseh describes a negative commandment (Lo Sa'aseh or "Lav") that is followed by a positive commandment (Aseh) instructing us what to do if the Lav was transgressed. Usually, the Aseh is an action that is performed to correct the Lav. For example, the Torah states, "Lo Sigzol" - "You shall not steal" (Vayikra 19:13); if someone transgresses this prohibition, the Torah tells him to correct his misdeed, "v'Heshiv Es ha'Gezelah" - "He shall return the stolen object" (Vayikra 5:23).
(b) At times the Aseh follows the Lav (e.g. Temurah - Vayikra 27:10 and Nosar - see below, entry #12) and at times it is found in a different Parshah altogether (e.g. Gezel).
(c) Reish Lakish rules that the Malkus (lashes) administered for the transgression of a Lav ha'Nitak l'Aseh are contingent upon whether the sinner subsequently fulfills (Kiyemo) the Mitzvas Aseh (in our case, sends away the mother bird) that is associated with the Lav or not. RASHI to Chulin explains that the sinner can exempt himself from Malkus only if he fulfills the Aseh within Kedei Dibur (see Background to Shevuos 32:5). Rashi to Makos (15b DH v'Reish Lakish) and other Rishonim explain that he is exempt from Malkus if he fulfills the Aseh at any future time.
(d) Rebbi Yochanan rules that the Malkus administered for the transgression of a Lav ha'Nitak l'Aseh are contingent upon whether the sinner subsequently annuls (Bitlo) the Aseh or not; i.e. he only receives lashes if he takes the young without sending away the mother bird and then kills the mother bird, so that it can no longer be sent away. (If the mother bird dies on its own he does not receive lashes.)
5) [line 22] "שלח" מעיקרא משמע "SHALE'ACH" ME'IKARA MASHMA - the word "Shale'ach" implies that when a person comes across a nest from which he wants to take eggs, he should send away the mother bird (and not that if he already took the eggs he should send away the mother.)
6) [line 24] אולמיה דהאי עשה מהאי עשה? MAI ULMEI D'HAI ASEI ME'HAI ASEI? - Why is this Aseh (of taking birds for the purification of the Metzora) stronger than that Aseh (of sending away the mother from the nest)?
7) [line 26] שמו של הקב''ה ... ימחה על המים SHEMO SHEL HA'KADOSH BARUCH HU... YIMACHEH AL HA'MAYIM (SOTAH)
(a) A Sotah is a woman who is suspected of committing adultery because she was warned by her husband not to seclude herself with a certain man and she violated the warning. The process of warning her in front of witnesses is called Kinuy. The witnesses who see her seclude herself with the suspected adulterer are called Eidei Stirah. The time of seclusion must be at least for the time that it takes to roast an egg and swallow it. The woman is forbidden to her husband and the alleged adulterer until she drinks Mei Sotah (see (d), below). If she committed adultery after not heeding the warning of two witnesses, she is put to death by Chenek (choking), as it states in the Torah (Devarim 22:22). One witness to adultery ("Ed Tum'ah") prevents her from drinking the Mei Sotah.
(b) After Kinuy and Stirah, the husband must bring his wife to the Beis ha'Mikdash to perform the ceremony of the Mei Sotah. On the way there, Beis Din appoints two Torah scholars to accompany them to make sure that they do not engage in marital relations, which are forbidden to them. Moreover, if the couple does have marital relations at this point, the Mei Sotah will not work, since the husband must be "Menukeh me'Avon," clear (lit. cleaned) of sin for the ceremony to work. The Gemara (Sotah 47b) explains that this means that he did not have relations with his wife from the time that she became prohibited to him, or with any other woman (ever) who was prohibited to him (RASHI to Sotah ibid.)
(c) The husband brings a sacrifice consisting of 1/10 of an Eifah (approximately 2.16, 2.49 or 4.32 liters, depending upon the differing Halachic opinions) of barley flour as a Minchah offering. Oil and Levonah are not added (Bamidbar 5:15), and Hagashah, Kemitzah and Haktarah are performed (see Background to Menachos 72:25a:c). The Sheyarei ha'Minchah are eaten by the Kohanim. In the Azarah of the Beis ha'Mikdash, a Kohen reads Parshas Sotah, the portion of the Torah describing the curses with which a Sotah is cursed, out loud (in any language that the Sotah understands) and makes the Sotah swear that she has been faithful to her husband.
(d) An earthenware jug is then filled with half a Log of water from the Kiyor and earth from the floor of the Azarah is placed on top of the water. Parshas Sotah (that contains numerous appearances of Hash-m's name) is written on parchment and then immersed in the water, which causes the ink to dissolve, erasing the Holy Names. The Sotah afterwards drinks from the water. If she was unfaithful to her husband and allowed herself to become defiled, the water would enter her body and poison her, causing her belly to swell out and her thigh to rupture. If she was faithful to her husband, she remained unharmed and would be blessed that she would become pregnant (Bamidbar 5:11-31). In times when there is no Mei Sotah such as in the present day, a Sotah must be divorced and does not receive her Kesuvah.
8) [line 31] כל מצות לא תעשה שיש בה קום עשה אין לוקין עליה KOL MITZVOS LO SA'ASEI SHE'YESH BAH KUM ASEI, EIN LOKIN ALEHA (LAV SHE'NITAK L'ASEH)
See above, entry #4.
9) [line 1] משבשתא היא MESHABESHTA HI - it is a faulty version
10) [line 4] "[כִּי תִקְצֹר קְצִירְךָ בְשָׂדֶךָ, וְשָׁכַחְתָּ עֹמֶר בַּשָּׂדֶה,] לֹא תָשׁוּב [לְקַחְתּוֹ, לַגֵּר, לַיָּתוֹם, וְלָאַלְמָנָה יִהְיֶה, לְמַעַן יְבָרֶכְךָ ה' אֱלֹקֶיךָ בְּכֹל מַעֲשֵׂה יָדֶיךָ.]" "LO SASHUV" - "do not return" (SHICHECHAH)
(a) If one or two sheaves of grain were forgotten in the field when the other sheaves were collected, they must be left for the poor, as described in Devarim (24:19), "Ki Siktzor Ketzircha v'Sadecha, v'Shachachta Omer ba'Sadeh, Lo Sashuv Lekachto, la'Ger, la'Yasom, vela'Almanah Yiheyeh." - "When you reap the harvest in your field, and you forget a sheaf in the field, do not return to take it, it shall be for the convert, the orphan, and the widow, so that HaSh-m, your G-d, will bless you in all of your endeavors." From the moment the owner of the field turns away from the remaining sheaves with the intention of ending the collection, it is prohibited for him to return for the remaining sheaves (Mishnah Pe'ah 6:4).
(b) If three sheaves of grain were forgotten in the field, then they do not have the status of Shichechah and a poor person may not take them.
11) [line 4] "... לֹא תְכַלֶּה פְּאַת [שָׂדְךָ לִקְצֹר ...]" "LO SECHALEH" - "do not completely [harvest]" (PE'AH)
(a) The corner, or end, of the harvest of grain must be left in the field for the poor, as it states "Lo Sechaleh Pe'as Sadecha Liktzor... le'Ani vela'Ger Ta'azov Osam." - "Do not completely harvest the corner of your field... you shall leave them (the gifts of Pe'ah, Leket, Olelos and Peret) for the poor and the stranger." (Vayikra 19:9-10).
(b) The requirement to leave Pe'ah for the poor applies to trees as well, as Chazal learn from the verse "Ki Sachbot Zeisecha, Lo Sefa'er Acharecha; la'Ger, la'Yasom vela'Almanah Yiheyeh." - "When you beat your olive trees to shake off the fruit, do not remove all of its splendor; it (that amount that you leave as Pe'ah - Chulin 131b) shall be for the convert, the orphan and the widow." (Devarim 24:20). Pe'ah does not apply to vegetables, as is explained in the Gemara (Pesachim 56b).
12) [line 9] "[וְ]לֹא תוֹתִירוּ מִמֶּנּוּ עַד בֹּקֶר; [וְהַנֹּתָר מִמֶּנּוּ עַד בֹּקֶר בָּאֵשׁ תִּשְׂרֹפוּ.]" "LO SOSIRU MIMENU AD BOKER" - "do not leave any of it over until the morning" (NOSAR)
(a) If any meat of a Korban remains after the time that was allotted for it to be eaten, it is termed "Nosar" and it must be burned. With regard to the Korban Pesach, the verse states, "Do not leave any of it (i.e. the Korban Pesach) over until the morning. Anything that is left over until the morning must be burned in fire" (Shemos 12:10). The repetition of the phrase "until the morning" signals that the verse is referring to the mornings of two different days, and can be understood as follows: "Do not leave any of the Korban Pesach over until the morning (which is Yom Tov). If anything is left over, on the following morning (which is Chol ha'Moed), it must be burned."
(b) The Torah warns us four times not to allow the meat of a Korban to remain past the time during which it may be eaten, each of which is counted as an individual Mitzvah. The first three apply to specific Korbanos (Korban Pesach, in Shemos 12:10 and SEFER HA'CHINUCH Mitzvah #8; Korban Pesach Sheni, in Bamidbar 9:12 and Sefer ha'Chinuch Mitzvah #382; the Chagigah that is brought with the Pesach, in Devarim 16:4 and Sefer ha'Chinuch Mitzvah #486). The fourth time this prohibition is written is with regard to the Korban Todah (Vayikra 7:15 and 22:30), which serves as the source for the prohibition of leaving over meat from any Korban after the allotted time (Sefer ha'Chinuch Mitzvah #142). (The Minchas Chinuch 8:5 suggests that the latter Lav applies even to the three Korbanos for which the Isur of Nosar is written explicitly; however the Acharonim reject his suggestion based on the Gemara in Zevachim 36a.)
13) [line 16] באגפיה B'AGAPEHA - by it wings
14) [line 17] "[אַשְׁרֵיכֶם זֹרְעֵי עַל כָּל מָיִם] מְשַׁלְּחֵי רֶגֶל הַשּׁוֹר וְהַחֲמוֹר." "ASHREICHEM ZOR'EI AL KOL MAYIM,[ MESHALCHEI REGEL HA'SHOR VEHA'CHAMOR" - "]Fortunate are you who are as those who have sown where water is always found,[ who send the feet of the ox [to thresh the grain] and the donkey [to carry it to the house]" (Yeshayah 32:20). This is part of a prophecy concerning the time of Mashi'ach.
15) [line 17] (באגפיה) [רגל] דהא כנפיה נינהו (B'AGAPEHA) [REGEL] D'HA, KENAFEHA NINHU - this one's (a bird's) wings are its "feet"
16) [line 18] ההוא דגזינהו לגפה HA'HU D'GAZINHU L'GAPAH - there was a person who plucked (lit. cut) the feathers of a mother bird (so that it could not fly)
17) [line 18] זיל, רבי לה גדפיה ושלחה ZIL, RABI LAH GADFEHA V'SHALCHAH - Go, take care of this bird until its feathers grow, and then send it away
18) [line 20] מכת מרדות מדרבנן MAKAS MARDUS MID'RABANAN
Beis Din has the power to inflict lashes upon a person when lashes mid'Oraisa cannot be instituted. These lashes are called Makas Mardus (lit. lashes for rebelliousness) and may be unlimited in number. (See Insights to Chulin 110:2 for a discussion of the various opinions regarding how Makas Mardus is administered.)
19) [line 21] תימה, מהו? TEIMAH, MAHU? - What is the law of a Teimah (a type of kosher bird)? Am I obligated to send the mother away?
20) [line 21] אמר, "לא ידע האי גברא ..." AMAR, "LO YADA HAI GAVRA ..." - Rava thought to himself, "Could it be that this person is not aware ..."
21) [line 22] אמר ליה, "האי ידעי לך ..." AMAR LEI, "HAI YAD'I LACH ..." - (a) Rava said to him: "Do I have to teach this law to you? It is discussed explicitly in the Mishnah!"; (b) according to the Girsa "HAI LO (YAD'I) [YADI'A] LACH..." - "Are you not aware of this law? It is discussed explicitly in our Mishnah! (RASHASH)
22) [line 23] אהדר לה רבא פרסתקי AHADAR LEI RAVA PERASTEKEI - Rava surrounded the area where the bird was sent away with traps
23) [line 24] וליחוש לחשדא V'LEICHUSH L'CHASHADA - but should we not be concerned that people will be suspicious [that Rava told him to send the bird away so that he could trap it for himself]?
24) [line 24] כלאחר יד KEL'ACHAR YAD - he did it in an abnormal manner (lit. with the back of his hand), i.e. he set the traps at a distance from the bird, so that it would not be noticeable
25) [line 25] מפני דרכי שלום MIPNEI DARCHEI SHALOM - [it is not actual robbery to lure the birds of another's dovecote into one's own dovecote, but rather the Rabanan prohibited it] because of Darchei Shalom (lit. the ways of peace), i.e. to maintain social justice
26) [line 26] חצרו של אדם קונה לו שלא מדעתו CHATZERO SHEL ADAM KONEH LO SHE'LO MI'DAITO - a person's domain acquires for him possession of an object which lies in it even without his knowledge (KINYAN CHATZER)
(a) When a person acquires an object, he must make a Ma'aseh Kinyan, a formal Halachically-binding act denoting his acquisition of the object, in order for the acquisition to be irrevocably binding. Depending on what object one is acquiring, different Kinyanim are used.
(b) One of the forms of Kinyan that may be used for the acquisition of Metaltelin (mobile items) is Kinyan Chatzer. The Torah teaches that one's Chatzer (lit. courtyard, but this implies any property or object that has the ability to contain something in it) can acquire for him an item that enters it, as Chazal derive from the verse, "Im Himatzei Timatzei b'Yado" - "If the theft be at all found in his hand" (Shemos 22:3; Bava Metzia 10b, RASHI to Bava Metzia 9b DH Mi Kani).
27) [line 36] זיל טרוף אקן דליתגבהו, וקנינהו ZIL TEROF A'KEN D'LISGABHU, V'KANINHU - go strike the nest so that the birds should fly up, and then take possession of them
28) [last line] לקנינהו ליה בסודר LIKNINHU LEI B'SUDAR (KINYAN SUDAR)
(a) When a person acquires an object, he must make a Ma'aseh Kinyan, a formal Halachically-binding act denoting his acquisition of the object, in order for the acquisition to be irrevocably binding. Similarly, when a person accepts upon himself a certain commitment or obligation, or wants to bind himself to keep his word, he can make a formal Halachically-binding act denoting his obligation. One form of Kinyan that may be used for both purposes is Kinyan Chalipin (exchange or barter), i.e. taking another object to demonstrate one's consent for the Kinyan (or for an agreement).
(b) In the context of making a Kinyan to demonstrate one's commitment to an agreement, the Kinyan is a symbolic act in which an object of little value is given over, such as a scarf or piece of cloth (Sudar). For this reason, Chalipin is also known as "Kinyan Sudar."