THE ATTRIBUTE OF LIVING IN ERETZ YISRAEL OR YERUSHALAYIM NOWADAYS [marriage:location]
(Beraisa - R. Yosi citing R. Yishmael) Suggestion: Perhaps nowadays (after the Churban) we may bring Ma'aser to Yerushalayim and eat it there!
Rejection: "Va'Haveisem Shamah... (Masroseichem... u'Vechoros... )" equates Ma'aser and Bechor. Just like Bechor may be eaten only when the Mikdash stands, also Ma'aser.
Question: If the Tana holds that the Kedushah is permanent (i.e. even after the Churban), also Bechor is permitted nowadays;
If he holds that the Kedushah was not permanent, he should be equally unsure about Bechor!
Answer: He holds that the Kedushah was not permanent. The case is, the Bechor's blood was thrown before the Churban, and the meat is intact after the Churban. Just like the blood requires a Mizbe'ach (to be offered), also the meat (may not be eaten without a Mizbe'ach). We learn Ma'aser from Bechor.
Kesuvos 110b (Mishnah): Anyone can force (his household) to ascend to Eretz Yisrael.
112a: When R. Elazar came to Eretz Yisrael, he said 'I was saved from a curse, "to the land of Yisrael they will not come."
Tosfos (21a DH Iy and DH Hachi): Rashi 's text is difficult. If the Kedushah was not permanent, Yerushalayim is no different than other cities! Also, we say in Zevachim that according to the opinion that the Kedushah was temporary, one may eat Ma'aser in all cities of Yisrael! To answer the latter question, he can say that here we discuss Ma'aser seeded before the Churban. It must be brought to Yerushalayim. It may not be eaten in other cities. According to Rashi's text, why must we say that the meat is equated to the blood? It is disqualified for leaving Yerushalayim, since it is as if there is no wall! Rather, the text says 'if he holds that the Kedushah was not permanent, also Ma'aser he should not bring (i.e. that was planted before the Churban). Really, he holds that the Kedushah was permanent. The case is, the Bechor's blood was thrown before the Churban, therefore one may eat it only if the Mikdash stands.
Rambam (Hilchos Beis ha'Bechirah 6:14): The first Kidush of the Azarah and Yerushalayim through Shlomo was permanent.
Rebuttal (Ra'avad): This is the Rambam's own opinion. I do not know his source. In several places the Mishnah says 'if there is no Mikdash, they rot.' The Gemara said that the Mechitzos fell. This shows that according to the opinion that the first Kedushah was temporary, we do not distinguish between the Mikdash, Yerushalayim and the rest of Eretz Yisrael. Further, I say that even R. Yosi, who says that the second Kedushah was permanent, said so only regarding the rest of Eretz Yisrael, but not for the Mikdash and Yerushalayim. Ezra knew that the Mikdash and Yerushalayim will change and get a new permanent Kedushah. This was revealed to me - "Sod Hash-m li'Yre'av." Therefore, one who enters (the Mikdash) nowadays does not get Kares.
Kesef Mishneh: The Halachah follows R. Yehoshua against R. Eliezer, and R. Yochanan against Reish Lakish. They hold that the Kedushah is permanent.
Magen Avraham (561:2): The Rambam had Tosfos' text 'even according to the opinion that the Kedushah was permanent, one may not eat Bechor and Ma'aser.'
Ritva (Gitin 2a DH v'Yesh): We find that R. Aba kissed the rocks of Ako. This does not prove that Eretz Yisrael kept its Kedushah. Surely, even according to the opinion that the Kedushah ceased, the dearness of the land endures!
Teshuvas ha'Rosh (12:7): If someone vowed 'La'alos (to ascend) to Eretz Yisrael', he may ask three people to permit this, like other vows.
Tosfos (Kesuvos 110b DH Hu): R. Chaim Kohen says that nowadays there is no Mitzvah to live in Eretz Yisrael. There are many Mitzvos dependent on the land, and punishments, and we cannot be careful about them.
Maharit (2 YD 28): My Rebbi says that the Rosh holds like R. Chaim Kohen, that nowadays there is no Mitzvah to live in Eretz Yisrael. Therefore, it is not like Nidrei Mitzvah, which may be permitted only in pressed circumstances. I disagree. The Rosh (Kesuvos 13:17) cites Rabbeinu Meir who says that there is a Mitzvah nowadays. Who understands Tosfos better than they?!
Maharit (ibid.): An errant Talmid wrote our Tosfos. The Mordechai cites the Teshuvah of R. Chaim Kohen: 'nowadays, the routes to Eretz Yisrael are in turmoil. One cannot force his wife to go, just like he cannot force her to go to a place of wild animals or bandits.' The Rosh is lenient because there is no evident Mitzvah to go to Eretz Yisrael and return, only to settle there.
Rabbeinu Meir (brought in Rosh): The Yerushalmi connotes that he has more rights than her! It says that he can force her to go to Eretz Yisrael or Yerushalayim, but she cannot force him. We do not force a man to follow a woman to Eretz Yisrael or Yerushalayim. This is unlike the Bavli. The Yerushalmi discusses nowadays. The Mishnah discusses when the Mikdash stood.
Rebuttal (Tur EH 75): If the Yerushalmi discusses nowadays, why can he force her? Rather, it seems that we do not distinguish nowadays from the time of the Mikdash, like the simple reading of our Mishnah.
Defense (Beis Yosef DH Yerushalmi and DH v'Yesh Omrim): Really, the Yerushalmi discusses nowadays. Chachamim did not want to diminish the man's rights regarding Eretz Yisrael and Yerushalayim. Why did the Tur bring both Rabbeinu Meir and R. Tam without saying that they argue?
Prishah (11): Nowadays there is no Mitzvah (to move) from Chutz la'Aretz to Eretz Yisrael, or from the rest of Eretz Yisrael to Yerushalayim. The Rosh holds that the Tur. The Rosh brought Maharam last. This shows that he holds like him. What forced the Rosh to say that the Bavli argues with the Yerushalmi? Maharam said that the Yerushalmi discusses nowadays! Rather, Maharam explained the Yerushalmi, but he does not rule like it, for nowadays we do not force (since there is no Mitzvah).
Rebuttal (Chasam Sofer YD 234): The Bavli does not distinguish between nowadays and when the Mikdash stands. All the Poskim bring the law that if a slave fled to Eretz Yisrael, his master cannot take him back. If nowadays a woman cannot force her husband to ascend, we should say similarly that nowadays a master can take back his slave to Chutz la'Aretz! Rather, even nowadays a woman can force.
Shulchan Aruch (EH 75:3): From Chutz la'Aretz to Eretz Yisrael we force even from a good place of (mostly) Yisre'elim to a bad place of (mostly) Nochrim. One cannot force to leave Eretz Yisrael, even from a bad place of Nochrim to a good place of Yisre'elim.
Beis Shmuel (EH 72:20): The Rosh, Tur and Agudah say that there is a Mitzvah to live in Eretz Yisrael even nowadays.
Chasam Sofer (YD 233): I wrote that Kedushas Makom ha'Mikdash was not Batel, and those who dwell near it are more Kodesh and closer to Hash-m. I did not discuss Mitzvos that depend on Eretz Yisrael or the Mikdash. I addressed the Ra'avad, who says that nowadays all the Kedushah is Batel. He holds that nowadays it is more obligatory to ascend to Eretz Yisrael. R. Chaim Kohen's answer (that it is hard for us to fulfill the Mitzvos of Eretz Yisrael nowadays) does not apply. The place of the Mikdash is still Beis Elokim and Sha'ar ha'Shamayim. It was the place where Adam ha'Rishon offered Korbanos, and of the Akeidah and Yakov's dream, before Yehoshua and Ezra were Mekadesh Eretz Yisrael. It was hidden until Hash-m enlightened David ha'Melech. The Rambam holds that even though Kedushas Eretz Yisrael is Batel, Kedushas ha'Mikdash is permanent. The Kedushah is so strong that it remains even regarding Mitzvos, Bechor and Ma'aser.
Chasam Sofer (234): The Birkei Yosef (YD 251:2) says that regarding Tzedakah, we give precedence to people who do Mitzvos and righteous acts. Settling Yerushalayim is more important than settling other places in Eretz Yisrael, therefore residents of Yerushalayim have precedence over residents of other cities in Eretz Yisrael. I learn from Kesuvos, which says that anyone can force (his household) to ascend to Yerushalayim. This is even nowadays. Even according to the Mordechai and Hagahos Ashri who say that a wife cannot force her husband nowadays, a man can force his wife. The questioner said that the Mishnah discusses when the Mikdash stands. Then, there is a greater Mitzvah to live in Yerushalayim than the rest of Eretz Yisrael. This is wrong. Even if we would say that Yerushalayim is no better than the rest of Eretz Yisrael nowadays, surely Eretz Yisrael is always better than Chutz la'Aretz. Why can't a woman force her husband to ascend to Eretz Yisrael nowadays? The Bach said that it is because income is difficult in Eretz Yisrael. This does not explain why she cannot force him to come to Yerushalayim. Surely it is no worse there than in the rest of Eretz Yisrael! We can say that it is because living in a big city is difficult. However, the Mordechai and Hagahos Ashri conclude that it is a bigger Mitzvah to live in Yerushalayim.
Chasam Sofer: Chesed l'Avraham says that Tzefas is more Kodesh than other cities, i.e. other than Yerushalayim. One cannot say that another city is more Kodesh than Yerushalayim. If so, one would tear over seeing it in ruins, but not over seeing Yerushalayim afterwards! We hold oppositely! A verse teaches that Yerushalayim is the highest city - "v'Kamta v'Alisa." Maps show that Yerushalayim is not the highest elevation. "K'Tal Chermon she'Yored Al Harerei Tziyon" (Tehilim 133:3) shows that Mount Chermon is higher than the mountains of Yerushalayim (Rashi 132:2)! Rather, Yerushalayim is the source from which the entire world 'drank'.
Chasam Sofer: Many Chachmei Yisrael did not go to Yerushalayim. The Sanhedrin was in Yavneh and Tzipori, and the Beis Yosef and Ari Zal did not ascend. In the days of the Gemara there were murders and Shemad (decrees against Torah) in Yerushalayim, therefore the Sanhedrin was exiled. When another place is the center of Torah, this overrides Yerushalayim. Even Ezra did not ascend to build the Beis ha'Mikdash as long as his Rebbi (Baruch ben Neriyah) was alive! The Beis Yosef and Ari Zal found most Chachmei Yisrael in Tzefas, therefore they settled there.
Shevet ha'Levi (5:135): The Chasam Sofer says that the precedence for Yerushalayim is based on the permanence of the first Kedushah, and even though it was not permanent regarding Mitzvos that depend on Yerushalayim and the Mikdash and Kares for entering the Mikdash b'Tum'ah (according to the Ra'avad), it is still Sha'ar ha'Shamayim and the Shechinah never left. The Maharsham asked from Tosfos, who says that if the Kedushah was not permanent, Yerushalayim is no different than other cities! This is not difficult. Tosfos discusses Hakravah and eating Ma'aser. Kedushas ha'Shechinah does not depend on them! However, most of Yerushalayim nowadays is outside of the wall, and has only Kedushas Yehudah. The Ramah (Sanhedrin 11b) says that Yehudah is called Hash-m's neighbor, but we do not find that this gives precedence regarding Tzedakah.