1) THE ORDER OF PRECEDENCE OF A MITZVAH D'ORAISA AND A MITZVAH D'RABANAN

QUESTION: The earlier Mishnayos discuss two major principles concerning order of precedence. The Mishnah teaches that a Mitzvah (or Korban) that comes more frequently (Tadir) is to be performed before a Mitzvah (or Korban) that comes less frequently (Eino Tadir). The Mishnah also teaches that the Mitzvah with more sanctity should be done before the Mitzvah with less sanctity. The Gemara here inquires about the order of precedence in a case in which the two rules oppose each other, such as when the more Tadir item is the less Mekudash one. An example of such a case is when one needs to bring the blood of the Korban Tamid (which is Tadir) and the blood of a Chatas (which is Mekudash), and both are ready to be brought (RASHI to 90b, DH Tadir u'Mekudash). Which one takes precedence?

The Gemara attempts to answer this question from various sources. One source is a Beraisa in Berachos (51b), which explains the reasoning of Beis Hillel who states that the blessing of wine during the Friday night Kidush is said before the blessing for the Kedushah of the day. The Beraisa says that Beis Hillel's reasoning is that since the blessing of wine is more Tadir, it should be recited first. Even though the blessing of Shabbos is Mekudash, the blessing for wine takes precedence because it is more frequent. This implies that Tadir takes precedence over Mekudash. The Gemara rejects the proof from the Beraisa there, because the blessing said for the wine also becomes Mekudash as a result of the Kedushah of Shabbos, and thus it is both Tadir and Mekudash.

The PNEI YEHOSHUA in Berachos (51b) points out that the Gemara here seems to ignore an important factor. The blessing of Kidush recited for Shabbos is a Mitzvah d'Oraisa, while the blessing for wine is only mid'Rabanan. Why does the Gemara not say that the blessing of Shabbos should be recited first because a Mitzvah d'Oraisa is always performed before a Mitzvah d'Rabanan?

ANSWERS:

(a) The PNEI YEHOSHUA and the TZELACH answer that the Gemara here is discussing two Mitzvos d'Rabanan. The blessing of Kidush said for Shabbos is not mid'Oraisa, because the person who recites Kidush already fulfilled his Torah obligation of Kidush when he recited the Shemoneh Esreh of Shabbos on Friday night. Thus, his blessing of Kidush over the wine is only mid'Rabanan.

The MITZPEH EISAN, however, asserts that one does not fulfill his Torah obligation of Kidush with the recitation of Shemoneh Esreh. The Gemara in Pesachim (117b) derives through a Gezeirah Shavah that one must mention Yetzi'as Mitzrayim during Kidush. Since it is learned through a Gezeirah Shavah, it seems to be a Torah condition in the fulfillment of the Mitzvah of Kidush. During the Shemoneh Esreh on Friday night, no mention of Shabbos as "Zecher li'Yetzi'as Mitzrayim" is made, and thus this condition is not fulfilled. Moreover, the Tzelach himself in Pesachim (100a) writes that the requirement to recite Kidush only in the place where he dines ("Kidush b'Makom Se'udah") is a prerequisite mid'Oraisa for fulfilling the Mitzvah of Kidush. Since one does not eat in the synagogue after the prayers of Friday night, how does one fulfill the Mitzvah of Kidush through the recitation of the Shemoneh Esreh? (See BI'UR HALACHAH OC 271:1, DH Miyad, for further discussion of this topic.)

(b) The SHA'AGAS ARYEH (#22) explains that the question of the Pnei Yehoshua is no question at all. Rather, this Gemara is proof that there is no such principle that one must perform a Mitzvah d'Oraisa before a Mitzvah d'Rabanan.

He addresses the intrinsic logical difficulty with his own assertion. The Gemara says that something that is more Mekudash takes precedence over something that is less Mekudash. A Mitzvah d'Oraisa certainly is more Mekudash than a Mitzvah d'Rabanan. Why, then, should it not come first?

The Sha'agas Aryeh explains that the Halachah of precedence of Tadir or Mekudash applies only when there are two Mitzvos to perform at the same moment. It does not apply to something which is not a Mitzvah, but merely a voluntary act (a "Devar ha'Reshus"). One may perform such an act prior to performing a Mitzvah, even if that act is not Tadir and not Mekudash. A Mitzvah d'Rabanan, when compared with a Mitzvah d'Oraisa, is considered a "Devar ha'Reshus," a voluntary act, and, therefore, one should be permitted to perform the Mitzvah d'Rabanan before the Mitzvah d'Oraisa. However, this is not always the case. There is a principle that "Kol d'Sakun Rabanan k'Ein d'Oraisa Takun" -- everything the Rabanan enacted, they enacted it in the manner of a d'Oraisa law. Therefore, even though a Mitzvah d'Rabanan is like a "Devar ha'Reshus" when compared with a Mitzvah d'Oraisa, the Rabanan enacted that the Torah rule of "Tadir" applies even when one is faced with a Mitzvah d'Oraisa and a Mitzvah d'Rabanan. Both types of Mitzvos are considered to have equal status, and the Tadir one is done first. This is evident by the fact that the rule of "Tadir" dictates that the blessing for wine, which is mid'Rabanan, is recited before the blessing for Shabbos, which is mid'Oraisa. (Y. MONTROSE)

91b----------------------------------------91b

2) POURING WINE ON THE FIRE OF THE MIZBE'ACH

QUESTION: The Gemara quotes two Beraisos which seem to contradict each other. One Beraisa states that when a person donates an offering of oil (in accordance with the opinion of Rebbi Tarfon that an oil-offering may be donated), the oil is poured onto the fire on the Mizbe'ach. A second Beraisa states that when a person donates an offering of wine, the wine may not be poured onto the fire of the Mizbe'ach because (according the Girsa of the TZON KODASHIM) of the prohibition of "Lo Sichbeh" -- "the fire on the Mizbe'ach shall not be extinguished" (Vayikra 6:5), which prohibits extinguishing the fire and coals of the Mizbe'ach. One Beraisa seems to maintain that one may pour a liquid onto the Mizbe'ach, even though it will cause the fire to become extinguished (in whole or in part), while the other Beraisa seems to maintain that this is permitted.

The Gemara answers that the two Beraisos are indeed arguing, and they are expressing the opinions of two different Tana'im. The first Beraisa is expressing the view of Rebbi Shimon, who maintains that a "Davar she'Eino Miskaven" is permitted. A Davar she'Eino Miskaven is an act that is done for a certain permitted purpose, but which may result in an inadvertent act of transgression. Since the purpose of pouring the wine on the Mizbe'ach is in order to offer the wine as a Korban, and one does not have intention to extinguish the fire, one does not transgress the prohibition of "Lo Sichbeh." The second Beraisa is expressing the view of Rebbi Yehudah, who maintains that a Davar she'Eino Miskaven is forbidden. Even though the purpose of pouring the wine is to offer a Korban, if the act results -- even inadvertently -- in a forbidden consequence (the fire is extinguished), then it is forbidden.

RASHI (DH Ha Rebbi Shimon) has difficulty with this Gemara. Even Rebbi Shimon agrees that when an act is a "Pesik Reishei" -- an act that will certainly result in a forbidden Melachah being unintentionally performed on Shabbos -- it is forbidden (see Shabbos 103a). Pouring wine on the fire of the Mizbe'ach certainly will extinguish part of the fire. Why, then, does the Gemara say that this act is permitted according to Rebbi Shimon?

ANSWERS:

(a) RASHI answers that this act is not called a "Pesik Reishei." Since it is possible for the Kohen to pour the liquid on the Mizbe'ach in small drops in such a way that it will not affect the fire at all, it is not a "Pesik Reishei." Since it is considered a Davar she'Eino Miskaven which is not a "Pesik Reishei he may pour the liquid on the fire even in large drops. The MIRKEVES HA'MISHNEH (Hilchos Shabbos 1:1) writes that Rashi indeed understands that even when one performs a permitted act which definitely will result in a forbidden act being done, if his intent is not for the forbidden act and he is able to avoid the forbidden consequence by doing this same act in a different manner, the act is permitted even in a way that will have a forbidden consequence. For example, according to the Mirkeves ha'Mishneh's understanding of Rashi, in a case in which a person wants to open a door on Shabbos which has a light which goes on when the door is opened at a normal speed but not when it is opened at a slow speed, one may open the door at the normal speed, since he could have opened it at the slow speed (assuming that the person's purpose is to enter the room and not to turn on the light). A similar concept is proposed by the SHILTEI GIBORIM in Shabbos (page 38 of the pages of the Rif, #3), which, the Mirkeves ha'Mishneh says, is consistent with the approach of Rashi. (See EVEN HA'AZEL, Hilchos Ma'aseh ha'Korbanos, for a different understanding of Rashi.)

(b) The BARTENURA explains that the reason why the act of pouring wine on the Mizbe'ach is not a "Pesik Reishei" is that the fire on the Mizbe'ach is strong enough that it might withstand this amount of wine without being extinguished at all.

(c) TOSFOS in Kesuvos (6a, DH Hai) writes that this Gemara is the primary proof of the ARUCH for his opinion that an act of "Pesik Reishei" is prohibited only when the person doing the act benefits from the act. If the person does not benefit from the Melachah that inevitably occurs (that is, it is a "Pesik Reishei d'Lo Nicha Lei"), then it is considered only a Davar she'Eino Miskaven and is not prohibited. The reason why the Kohen is permitted to pour the liquid on the fire of the Mizbe'ach is that he does not desire the consequence of extinguishing the fire.

(d) TOSFOS disagrees with the Aruch and maintains that a "Pesik Reishei d'Lo Nicha Lei" is forbidden. How does he understand the Gemara here? Tosfos suggests that when the act of the "Pesik Reishei" is done for the sake of a Mitzvah, it is permitted, even though it results in a forbidden act being done.

(e) TOSFOS in Shabbos (103a, DH Lo) suggests other explanations for the Gemara. It is possible that the Gemara is discussing a case in which the Kohen pours the liquid on the Mizbe'ach in small drops, which normally would not extinguish the fire. Similarly, Tosfos suggests that the Kohen poured the liquid on top of the limbs of Korbanos which were on the Mizbe'ach, and there was no fire on top of them at that moment. This act normally would not result in extinguishing the fire, and thus the act is a Davar she'Eino Miskaven if the fire happens to be extinguished. (Y. MONTROSE)

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