1) THE MISHNAH IN SANHEDRIN
QUESTION: The Mishnah here lists the criteria necessary for making additions to the area of Yerushalayim and to the courtyards of the Beis ha'Mikdash. Enlarging the area may be done only in the presence of the king, a prophet, the Urim v'Tumim, and the Sanhedrin of seventy-one judges (Sanhedri Gedolah).
The Mishnah in Sanhedrin (2a) also discusses the requirements for extending the boundaries, but it mentions only the need for the presence of the Sanhedrin of seventy-one judges. What is the reason for this discrepancy between the two Mishnayos?
(a) TOSFOS (15a) answers that the primary source for the procedure of adding to Yerushalayim is the Mishnah here, which lists all of the requirements. The Mishnah in Sanhedrin merely lists the various functions of judges and how many judges are needed for each function; it does not delve into the details of each function that it lists. This is also the reason why the Mishnah there mentions only the Sanhedrin of seventy-one judges as the criterion for starting a Milchemes ha'Reshus and does not mention the other requirements listed in the Gemara (Sanhedrin 16a).
Tosfos questions this approach from a different statement in that Mishnah. The Mishnah there says that only the Sanhedrin of seventy-one judges may adjudicate questions of a Shevet's inheritance of land. The Gemara there explains that because the inheritance was originally distributed by the Sanhedri Gedolah, it is also judged by them. The Gemara asks that if this is the reason, then the presence of the Urim v'Tumim and the Goral (lottery), which also were present at the time of the original division of the land, should also be necessary.
Why does the Gemara ask this question? Perhaps the Urim v'Tumim and Goral indeed are necessary in such a case. According to the answer of Tosfos here, the Mishnah in Sanhedrin lists only the functions of the Sanhedrin and not the details of each function, and thus the Mishnah there does not need to mention the other things which are necessary in order to judge a case of a Shevet's inheritance!
Tosfos answers that when the Mishnah in Sanhedrin states that only the Sanhedri Gedolah may judge the inheritance of a Shevet, it says also that only the Sanhedri Gedolah may judge a false prophet and a Kohen Gadol. The trial of a false prophet and Kohen Gadol needs nothing other than the Sanhedrin. From the fact that the Mishnah there groups judging a Shevet together with judging a false prophet and a Kohen Gadol, it is clear that the Mishnah maintains that nothing other than the Sanhedrin is needed to judge a Shevet! The Gemara therefore asks why the Urim v'Tumim and Goral are omitted.
(b) The CHASAM SOFER suggests another explanation. When the Mishkan was built, the Urim v'Tumim was not fashioned and put it into use until the eighth day of the inauguration of the Mishkan. This implies that the great holiness of the Mishkan and Beis ha'Mikdash take effect without the presence of the Urim v'Tumim. The prohibition of a Tamei person entering the Mishkan was taught only on the eighth day of the inauguration of the Mishkan.
Based on this, the Chasam Sofer explains the difference between the Mishnah in Sanhedrin and the Mishnah in Shevuos. The Mishnah in Sanhedrin is discussing the minimum requirement needed to give holiness to the Mikdash (which is necessary in order to offer Korbanos there). To provide the minimum degree of Kedushah, the presence of the Sanhedri Gedolah suffices. The Mishnah here in Shevuos, on the other hand, is listing the requirements necessary to give the Mikdash a higher degree of Kedushah -- the degree of Kedushah which prohibits a Tamei person from entering the Beis ha'Mikdash. For such a person to be punished with Kares, the place he enters must have been sanctified with the additional Kedushah that comes with the presence of the king, prophet, and Urim v'Tumim.
The KENESES YISRAEL says that the Chidush of the Chasam Sofer actually seems to be the view of the RAMBAM. The Rambam (Hilchos Beis ha'Bechirah 6:14) records the requirements for expanding the place of the Mikdash as mentioned in the Mishnah here. He concludes that "any place that has not been sanctified with all of the above [requirements], and in the proper sequence, is not completely holy." Why does the Rambam write that such a place is not "completely holy," implying that it does have some degree of Kedushah? If the Rambam is of the opinion that Kedushah is effected only when all of the criteria listed in the Mishnah here are present (as Tosfos maintains), then he should say that an area which was sanctified without all of these things is "not holy" at all. The Rambam's words indicate that the area definitely achieves some degree of Kedushah, as the Chasam Sofer maintains. (Y. MONTROSE)
2) ONE WHO REMAINS IN THE BEIS HA'MIKDASH WHEN HE IS "TAMEI"
QUESTION: The Mishnah discusses cases of a person who becomes Tamei while in the Beis ha'Mikdash, and one who remembers while he is standing in the Beis ha'Mikdash that he is Tamei. The Mishnah teaches that in the case of a person who realizes that he has become Tamei while he is standing in the Beis ha'Mikdash, the person must exit the Mikdash immediately, using the shortest route possible, and he may not bow down or tarry in any way. If he does not exit as soon as possible, he transgresses the sin of Tum'as Mikdash.
TOSFOS, the RAMBAN, and others point out that there is an important difference between a person who intentionally lingers in the Mikdash while he is Tamei and a person who enters the Mikdash while Tamei. The person who knows that he is Tamei when he enters the Mikdash transgresses the prohibition with an action and commits a "Lav she'Yesh Bo Ma'aseh" when he enters the Mikdash while he is Tamei. In contrast, a person who finds out that he is Tamei while he is in the Mikdash transgresses the prohibition only passively; he commits only a "Lav she'Ein Bo Ma'aseh."
The Gemara later (17a) discusses how much time the person must wait in the Mikdash before exiting in order to be Chayav Malkus for Tum'as Mikdash. What does the Gemara mean when it says that remaining in the Mikdash is an act punishable with Malkus? One does not receive Malkus for a Lav she'Ein Bo Ma'aseh!
(a) TOSFOS answers that the Gemara here follows the opinion that one does receive Malkus for a Lav she'Ein Bo Ma'aseh (see Makos 2b).
The MAHARI KURKUS (Hilchos Bi'as ha'Mikdash 3:21) proposes that this is also the view of the RAMBAM. The Rambam (Hilchos Sanhedrin 18:2) rules in accordance with the view that there is no Malkus for a Lav she'Ein Bo Ma'aseh. Accordingly, when the Rambam (Hilchos Sanhedrin 19:1) lists the transgressions for which a person receives Malkus, he includes a person who enters the Azarah while Tamei, and he does not include a person who remains in the Azarah while Tamei. The Mahari Kurkus points out that the Rambam apparently follows Tosfos' understanding of the Gemara.
(b) Alternatively, Tosfos explains that sometimes a person can be punished with Malkus even though he performed no action when he transgressed the Lav. When a transgression must be preceded by an action and the results of that action cause the person to continue to transgress the prohibition, the person can be punished with Malkus for continuing to transgress the prohibition, since his transgression was brought about initially through an action. The RITVA in Makos (21b; see Insights there) suggests a similar answer. (See MISHNEH L'MELECH, Hilchos Bi'as ha'Mikdash 3:21, SHA'AGAS ARYEH #32 and Sha'agas Aryeh Chadashos #12, IMREI BINYAMIN, and Insights to Nazir 17:1:d.)
Since the prohibition of Tum'as Mikdash can be transgressed only with an action of entering the Mikdash, it is not comparable to prohibitions that are entirely passive.
The MINCHAS CHINUCH (#11), quoting the SHA'AR HA'MELECH, uses this principle to explain a difficulty in the laws of Pesach. The RAMBAM (Hilchos Chametz u'Matzah 1:3) and the SEFER HA'CHINUCH maintain that one who possesses Chametz during Pesach is punished with Malkus. Why, though, is the Isur of possessing Chametz not considered a Lav she'Ein Bo Ma'aseh? According to the principle of Tosfos, the answer is clear. Since it is necessary to do an action in order to acquire Chametz in the first place, possessing Chametz during Pesach is considered a Lav she'Yesh Bo Ma'aseh and is not passive.
A number of Acharonim ask various questions on Tosfos' principle. For example, in the Gemara in Zevachim (29b) which discusses the sin of Pigul (a Kohen who, while performing the Avodah, thinks about eating the meat of a Korban after the allotted time), Rebbi Yanai cites a verse which prohibits Pigul with a Lo Ta'aseh, and he proves from there that the sin of Pigul is punishable with Malkus. Rav Ashi asks Rav Mari that the Isur of Pigul is a passive prohibition and thus it should not be punishable with Malkus. Rav Mari answers that Rebbi Yanai's statement follows the opinion that transgressing a passive prohibition is punishable with Malkus. If, as Tosfos asserts, every prohibition that depends on an initial action is considered a Lav she'Yesh Bo Ma'aseh, then why does the Gemara there not answer that Pigul is considered a Lav she'Yesh Bo Ma'aseh (OLAS SHLOMO)? This is one of the questions that the Acharonim ask on Tosfos' principle. (See also ARUCH LA'NER to Makos 21b, and KEHILOS YAKOV to Shevuos, #3.) (Y. MONTROSE)