1) "MIN B'MINO EINO CHOTZETZ"
QUESTION: The Mishnah (109a) teaches that one who offers a k'Zayis of a mixture of meat and Eimurin of a Korban outside the Beis ha'Mikdash transgresses the prohibition of Ma'aleh ba'Chutz, offering a Korban outside the Beis ha'Mikdash. The Gemara asks that this should not constitute a violation of the prohibition, because the meat -- which is not fit to be offered on the Mizbe'ach and therefore is not subject to the Isur of Ma'aleh ba'Chutz -- is an intervening substance, a Chatzitzah, between the Eimurin and the altar. Consequently, it is not considered as though the Eimurin are being offered on an altar outside the Beis ha'Mikdash.
The Gemara gives three answers to this question. Rav answers that "Min b'Mino Eino Chotzetz" -- the law of Chatzitzah does not apply to two items of the same type.
TOSFOS (DH Min b'Mino) asks that Rav's opinion here is not consistent with the Mishnah earlier in Zevachim (15b). The Mishnah there says that a Kohen may not perform the Avodah while he stands on the foot of another Kohen. The Kohen must stand directly on the floor when he performs the Avodah. If he stands on another Kohen's foot, that foot is a Chatzitzah between his own foot and the floor. According to Rav who says that "Min b'Mino Eino Chotzetz," the other Kohen's foot should not be considered a Chatzitzah!
ANSWER: TOSFOS answers that the reason why the Mishnah disqualifies an Avodah done while the Kohen stands on another Kohen's foot is not the law of Chatzitzah. Rather, it is because doing the Avodah in such a way is not called "Derech Sherus," the normal way of performing the service.
REBBI AKIVA EIGER (in Gilyon ha'Shas) references a different Gemara in Yoma (58a), which seems to pose a question on Tosfos. The Gemara there asks from the Gemara earlier in Zevachim (15a) that there is a problem of Chatzitzah, even in a case of "Min b'Mino." The Gemara answers that the only reason why standing on someone else's foot disqualifies the Avodah is that the other person is not Mevatel his foot to the other Kohen or to that place on the floor. This implies that according to the Gemara's conclusion, the reason why the Avodah is Pasul is that it is a Chatzitzah, and not that it lacks "Derech Sherus." Why, then, does Tosfos here say that the reason why the Avodah is Pasul in such a case is that it is not "Derech Sherus"?
Moreover, RASHI in Pesachim (65b, DH v'Ha) writes that the reason why the Avodah of a Kohen who stands on someone else's foot is invalid is the law of Chatzitzah. However, Rashi elsewhere seems to contradict his words in Pesachim. Rashi in Shabbos (93b, DH Kohen ha'Omed) quotes the verse, "[v'Shares...] k'Chol Echav ha'Leviyim" -- "[and he will minister...] like all of his brothers, the Leviyim" (Devarim 18:7). Rashi explains that this verse teaches that the Kohen's Avodah should be performed in the same manner as the Avodah of his brothers is performed. Rashi seems to learn like Tosfos, and he makes no mention of Chatzitzah. What is the view of Rashi? How are these two contradictory comments of Rashi to be reconciled?
In order to answer these questions, it is necessary to identify the source for the requirement of "Derech Sherus." The Tosefta in Menachos (1:8) states that the reason why the Avodah performed by a Kohen who is sitting is Pasul is that the verse says, "la'Amod l'Shares" -- "to stand to minister" (Devarim 18:5). The Tosefta says that the reason why the Avodah performed by a Kohen who is standing on a brick is Pasul is that the verse says, "[v'Shares...] k'Chol Echav ha'Leviyim" -- "[and he will minister...] like all of his brothers, the Leviyim" (Devarim 18:7). This Tosefta seems to be the source that an Avodah that was not performed in the normal manner of service is disqualified. (See CHAZON YECHEZKEL there.) A similar teaching is cited in the Sifri (Devarim 18:7).
The SHA'AR MORDECHAI (24a, note 212) understands that the Tosefta is teaching that the two cases that it mentions have two different reasons for why the Avodah is Pasul. One reason is that the Kohen must perform the service in the proper manner, as implied by the verse, "la'Amod l'Shares." The second reason is that there cannot be a Chatzitzah, and that is why the Avodah is Pasul when the Kohen stands on a brick. (See the explanation of RABEINU HILLEL on the Sifri.) Based on this understanding, it may be suggested that the Gemara in Yoma (58a) is answering its question only with regard to the issue of Chatzitzah, which is the subject of the Gemara there. Tosfos here, on the other hand, is giving another reason for why the Avodah is Pasul when the Kohen stands on another Kohen's foot -- that is, it is not "Derech Sherus."
Similarly, it may be suggested that Rashi agrees that both of these reasons -- Chatzitzah and "Derech Sherus" -- apply. (See Chazon Yechezkel to Zevachim 1:5 for another explanation of Rashi to Shabbos 93b.) (Y. MONTROSE)
2) BEING LENIENT IN A CASE OF A "HALACHAH L'MOSHE MI'SINAI"
QUESTION: The Mishnah quotes Rebbi Eliezer who says that one who pours, outside the Beis ha'Mikdash, a container of water which was filled with intent to be used for the Nisuch ha'Mayim on Sukos, transgresses the prohibition of Ma'aleh ba'Chutz, offering a Korban outside the Beis ha'Mikdash. Rebbi Eliezer clearly maintains that the Nisuch ha'Mayim is an offering mandated by the Torah, since one is Chayav for Ma'aleh ba'Chutz only for an offering that is fit to be offered in the Beis ha'Mikdash.
The RAMBAM (in Perush ha'Mishnayos) and the BARTENURA explain that the Halachah does not follow the opinion of Rebbi Eliezer, because the pouring of the water on Sukos is merely a Halachah l'Moshe mi'Sinai, and not an ordinary Halachah d'Oraisa.
This is very difficult to understand. What difference does it make whether a Halachah is written explicitly in the Torah, or whether it was transmitted as a Halachah l'Moshe mi'Sinai? Both types of Halachos have the status of a Halachah d'Oraisa! (TOSFOS YOM TOV)
(a) Perhaps the Rambam and Bartenura maintain that although a Halachah l'Moshe mi'Sinai is mid'Oraisa, one cannot receive a punishment (such as Malkus) for transgressing a Halachah l'Moshe mi'Sinai. This view is expressed by the RITVA in Shabbos (96b). The YAD BINYAMIN writes that this view is explicitly stated by the Gemara in Nazir (25b), which says that "if we would learn this from a Halachah l'Moshe mi'Sinai, then we might have thought that if one transgresses it he would not be Chayav [to receive punishment] for it." Accordingly, the reason why the Halachah does not follow the view of Rebbi Eliezer is that a punishment is not given to one who transgresses a Halachah l'Moshe mi'Sinai, and the Nisuch ha'Mayim of Sukos is a Halachah l'Moshe mi'Sinai.
(b) The TOSFOS YOM TOV says that our text of the Perush ha'Mishnayos is incorrect. Indeed, in the Eretz Yisrael printing of the Rambam's commentary, the Rambam writes that Rebbi Eliezer maintains that even if one offers a small amount of water outside the Beis ha'Mikdash, one is Chayav. The Rambam writes that the Halachah does not follow this opinion, because "since it is a Halachah l'Moshe mi'Sinai, everyone agrees that one is Chayav only if he offers three Lugin of water." This is the Halachah as recorded by the Rambam in the Mishneh Torah (Hilchos Temidin u'Musafin 10:6, Hilchos Ma'aseh ha'Korbanos 19:4).
However, that text seems to have a different difficulty. The Gemara here comes to the opposite conclusion: if the law of Nisuch ha'Mayim is based on a verse in the Torah, then three Lugin are required, and if it is a Halachah l'Moshe mi'Sinai, then any amount suffices. Why does the Rambam rule against the apparent conclusion of the Gemara?
The ZEVACH TODAH explains that the Rambam chooses to rule in a way that is not in accordance with the Gemara because if he would rule like the Gemara, then he would contradict a number of Beraisos (cited by the Gemara earlier, 109a and 109b) which explicitly state that one is Chayav only if he offers three Lugin of water, but not less. The Rambam chooses to rule like those Beraisos.
The CHOK NASAN explains that when the Gemara says that there is no minimum amount if Nisuch ha'Mayim is a Halachah l'Moshe mi'Sinai, it does not mean that one may offer as little as one wants. Rather, the Gemara means (as the Rambam rules) that the minimum is three Lugin, but if one wants to offer more he may do so, unlike other Korbanos which have a specific amount, to which one may not add and from which one may not subtract. (See RASHI, DH b'Yesh Shi'ur, in contrast to TOSFOS, DH b'Yesh Shi'ur. See also KEREN ORAH and PANIM ME'IROS.) (Y. MONTROSE)