1) AN AVODAH PERFORMED BY ONE WHO IS "PASUL" FOR AVODAH
QUESTION: The Mishnah (31b) teaches that all of the types of people who are ineligible to perform the Avodah of offering a Korban are permitted to perform the Shechitah. Since their Shechitah is valid, if they have a thought of Pigul during the Shechitah they are able to disqualify the Korban. In contrast, they are not eligible to perform the Kabalas ha'Dam. Consequently, if they perform the Kabalah with a wrongful thought, they do not disqualify the Korban. Rather, if any blood remains in the neck of the animal, a valid Kohen should perform the Kabalas ha'Dam a second time.
Although the Avodah of Kabalah was done by a person who is not qualified to perform the Avodah, the Korban does not become Pasul because of his action. Rather, a valid Kohen may continue the Avodah in the proper manner if there is more blood in the animal. The Gemara (34b) calls this principle, "Ein Pasul Oseh Shirayim" (34b), which means that the Avodah performed by a Pasul (one who is ineligible to perform the Avodah) does not disqualify the rest of the blood from being used for the Avodah by a valid Kohen. (See TOSFOS to 34b, DH Pasul.) The Gemara there says that this applies whenever a Pasul performs the Avodah.
The Mishnah teaches that the same principle applies when a Pasul performs the Avodah with a thought of Chutz l'Zemano or Chutz l'Mekomo. Even though he had a thought of Pigul, it is ineffective and a valid Kohen may redo the Avodah of Kabalas ha'Dam.
Presumably, the reason why the Pasul's thought of Pigul does not disqualify the Korban is that the act performed by the Pasul is not considered an Avodah, and thus his thought has not taken place during an Avodah. It is comparable to an outsider who has a thought of Pigul about a Korban while he is not involved in any way in the offering of the Korban. This indeed is the way the KIRYAS SEFER (Hilchos Pesulei ha'Mukdashin 14) explains the Mishnah. However, if this is true, then why does the Mishnah mention at all that the Pasul did Kabalas ha'Dam with a thought of Chutz l'Zemano or Chutz l'Mekomo? If the Mishnah seeks to teach that a valid Kohen may redo the Avodah with the remaining blood even though a Pasul started the Avodah, then there is no point in mentioning the thought of Chutz l'Zemano or Chutz l'Mekomo. The point of the Mishnah cannot be to teach that the Pasul's wrongful thought has no effect, because that is obvious. A thought during an Avodah of a Pasul cannot affect the Korban, just as the Avodah of a Pasul cannot affect the Korban. What, then, is the Mishnah adding when it says that if a Pasul performs an Avodah with a thought of Pigul, the Avodah should be performed again by a valid Kohen with the remaining blood?
(a) RASHI (DH Im Yesh) seems to address this question. Rashi writes that it is not obvious that a Pasul's wrongful thought cannot disqualify the Korban. He explains that the fact that the Pasul's thought cannot affect the Korban is derived from the verse, "ha'Makriv Oso" (Vayikra 7:18), which implies that a person who is fit to offer ("Makriv") the Korban is a person who is fit to disqualify a Korban through his thoughts. Rashi is explaining that the fact that the Avodah of a Pasul is ineffective does not exclude the possibility that a thought of a Pasul can disqualify the Korban. Even though a valid Kohen will redo the Avodah with different blood, and the blood that the Pasul received will not be used at all for the Avodah, since the Pasul attempted to perform a Kabalas ha'Dam before the Kabalah of the Kohen was completed his thought of Pigul is considered to have occurred during the Kabalah procedure. The Korban is valid only because of the verse that Rashi cites, which teaches that the thought of a Pasul does not disqualify a Korban. Accordingly, the Mishnah is teaching that not only can the valid Kohen perform the Kabalas ha'Dam after the Kabalah of a Pasul who did not have a thought of Pigul, a valid Kohen can perform the Kabalas ha'Dam even after the Pasul did Kabalah with a thought of Pigul.
The RASHASH points out that there seems to be no explicit source in the Gemara for the teaching that Rashi derives from the verse. It seems, however, that Rashi may have inferred from the Mishnah that there must be a source in the Torah for the Mishnah's Halachah, and it is not based solely on the logic of the Kiryas Sefer. Rashi may have found a source for this Derashah in the Gemara earlier (29a), which derives from this verse that the Kohen who performs an Avodah with Pigul does not become Pasul himself. If the verse teaches that the Kohen performing the Avodah with Pigul does not become Pasul, then, obviously, the Kohen was a valid Kohen performing the Avodah in the first place.
The MIRKEVES HA'MISHNEH (Hilchos Pesulei ha'Mukdashin 1:28) suggests that the verse that Rashi cites might refer only to a thought that invalidates the Avodah, such as a thought of Chutz l'Zemano or Chutz l'Mekomo, or a thought of she'Lo Lishmah in the case of a Korban Chatas and Korban Pesach, since that is the type of thought that the verse is describing. In contrast, if a Pasul has in mind a thought of she'Lo Lishmah (for any Korban other than a Chatas and a Pesach), then the thought indeed may have an effect on the Korban, such that it will not fulfill the owner's obligation to offer that Korban, and it will not provide atonement for the owner. He suggests that this is the intention of the RAMBAM (Hilchos Pesulei ha'Mukdashin 14:2) who writes that a Pasul who has a thought of Pigul (or she'Lo Lishmah in the case of a Chatas or Pesach) does not disqualify the Korban, and a valid Kohen may perform a proper Kabalah with the remaining blood. However, a Pasul who has a thought of she'Lo Lishmah for any Korban other than a Chatas and a Pesach does disqualify the Korban. The Rambam's logic seems to be that even though the Pasul's thought should prevent the Korban from satisfying the owner's obligation (and it should not entirely invalidate the Korban), since the thought was cogitated by a person who is Pasul to perform the Avodah, as long as his thought is present in the Korban it is considered as though the Pasul performed part of the Avodah, and the Avodah of a Pasul disqualifies a Korban. The Mirkeves ha'Mishneh suggests a slightly different logic in order to explain the Rambam's ruling, but, as mentioned above, his words seem to be based on Rashi's explanation of the Mishnah that the thought of a Pasul is able to affect a Korban even after a Kohen redoes the Kabalah, if not for the Gezeiras ha'Kasuv.
(b) The OR SAME'ACH (Hilchos Pesulei ha'Mukdashin 14:2) suggests that the Mishnah is to be understood in the opposite manner. The Mishnah is not teaching that even with a thought of Pigul the Avodah of a Pasul does not disqualify the Korban. Rather, the Mishnah is referring to the Avodah of a Tamei, which normally does disqualify a Korban, since, unlike other Pesulim, the Tamei's Avodah does make Shirayim; once the Tamei does part of the Avodah, the rest of the blood becomes disqualified (as the Gemara in Me'ilah 5b teaches). The Mishnah, therefore, cannot say that when any of the Pesulim (including one who is Tamei) performs the Kabalah, a valid Kohen must redo the Kabalah. On the contrary, it is impossible to redo the Kabalah after a Tamei has already done Kabalah. Rather, the Mishnah is teaching that if a Tamei performs the Avodah with a thought of Pigul, then -- due to the additional Pesul that is incurred as a result of the thought of Pigul -- the Tamei does not disqualify the rest of the blood for Kabalah.
The logic for this is as follows. The reason why a Tamei disqualifies the remaining blood is that he is not "as Pasul" as a Zar or the other Pesulim, so to speak, since the Avodah of a Tamei is accepted b'Tzibur (see Insights to Zevachim 16:2). Since his Kabalah cannot be totally ignored, it is not possible for a valid Kohen to begin a new Kabalah. In contrast, the Avodah of a Tamei with a thought of Pigul is not acceptable at all, even b'Tzibur. Therefore, the Avodah of a Tamei with a thought of Pigul can be totally ignored, just like the Avodah of a Zar, and a valid Kohen may be Mekabel the remaining blood.
The Or Same'ach proposes that this is the intention of the Rambam cited above as well. The Rambam is not referring to a Zar who performs the Avodah with a thought of she'Lo Lishmah, but rather to a Kohen Tamei who performs the Avodah with a thought of she'Lo Lishmah. If the Kohen Tamei performs the Avodah with a thought of Pigul, the Kohen Tamei's Avodah may be ignored and a valid Kohen may take over and perform the Avodah, since such an Avodah is not accepted b'Tzibur. However, if a Kohen Tamei performs the Avodah with a thought of she'Lo Lishmah (for a Korban other than a Chatas or Pesach), then the Kohen Tamei's act cannot be disregarded since such an Avodah is accepted b'Tzibur, and it will be impossible for a valid Kohen to redo the Kabalah.
The KEREN ORAH (26a) suggests a similar explanation for the Rambam. However, the MINCHAS CHINUCH (138:5) presents strong arguments against such an interpretation of the Rambam's words. (See also Or Same'ach in CHIDUSHEI RABEINU MEIR SIMCHAH to Yevamos 33b, who proves from the Gemara there that Tum'ah is not Hutrah b'Tzibur when the Avodah of the Tamei is performed in a way in which l'Chatchilah it should not be performed.)
2) "HO'IL V'ISHTERI, ISHTERI"
QUESTION: The Beraisa states that a Metzora is permitted to extend his hands and thumbs into the Azarah for the sprinkling of the Dam on the eighth day of his Tehorah process. If the eighth day falls on Erev Pesach, he is permitted to put his hands into the Azarah even if he is a Tevul Yom for Tum'as Keri, even though a Ba'al Keri is normally prohibited with an Isur Kares from entering the Azarah. Ula explains that even extending a part of his body into the Azarah is prohibited with an Isur Kares, because of the rule that "Bi'ah b'Miktzas Shmah Bi'ah," a partial entry is considered an entry into the Azarah. The Tevul Yom is permitted, nevertheless, to put his hands into the Azarah in this case, due to the principle of "Ho'il v'Ishteri, Ishteri." This principle teaches that once a person is permitted to enter the Azarah with Tum'as Metzora, he remains permitted to extend his hands into the Azarah even if he is Tamei with a second form of Tum'ah, since he was already permitted when he had only the first Tum'ah.
Abaye asserts that the same logic cannot be applied to the Halachah of "Tum'ah Dechuyah Hi b'Tzibur." When a majority of the Jewish people are Tamei Mes on Erev Pesach, the Torah permits them to bring the Korban in a state of Tum'ah, because of the principle of "Tum'ah Dechuyah b'Tzibur." If the Tzibur then became Tamei with Tum'as Zav -- a form of Tum'ah which is not permitted b'Tzibur, one might have thought that the principle of "Ho'il v'Ishteri, Ishteri" teaches that if the Torah permits one form of Tum'ah in the Beis ha'Mikdash, then the second Tum'ah should be permitted as well. Abaye says that this is not the case. Tum'ah is not "Hutrah," permitted. Rather, it is "Dechuyah," pushed-off due to necessity. Therefore, although the Torah allows a Korban to be offered with Tum'as Mes, it does not allow the Avodah to be done with a second type of Tum'ah.
Rava argues and says that the opposite logic is true. It is logical to assume that the Torah does not prohibit the Metzora to put his hands in the Azarah, since the Torah never prohibited the Metzora from putting his hands into the Azarah. Therefore, no special dispensation is needed to allow him to put his hands into the Azarah. However, the Korban Pesach was not permitted l'Chatchilah to be brought in a state of Tum'ah, but was permitted only through Dechiyah. The Torah had to give a special dispensation to allow it to be brought b'Tum'ah. Once the dispensation was given, it makes no difference whether there was one Tum'ah or two Tum'os; the Torah permits bringing the Korban.
It seems from Rava's words that "Ho'il v'Ishteri" applies only for something permitted through Dechiyah, but not for something that is permitted without Dechiyah. The PRI MEGADIM (in Shoshanas ha'Amakim #5) questions Rava's statement from the Gemara in Kidushin (21b). The Gemara there suggests that when the Torah permits a Jewish warrior to take a Yefas To'ar, a Nochri woman captured in war, it permits that act only to a Yisrael, who transgresses only one Isur by taking such a woman. Perhaps the Torah does not permit a warrior who is a Kohen to take a Yefas To'ar, because marrying her will involve a second Isur (the Isur of "Zonah"). Rav rules that such a woman is permitted even to a Kohen, based on the logic of "Ho'il v'Ishteri, Ishteri." The Halachah follows his ruling.
Similarly, the Gemara teaches that when the Torah permits giving a Shifchah Kena'anis to an Eved Ivri, even though a Shifchah Kena'anis normally is prohibited to a Jew by a Isur Lav, the special dispensation of the Torah also applies to a Kohen who is an Eved Ivri, according to Rav, because of "Ho'il v'Ishteri, Ishteri."
According to Rava, how can the logic of "Ho'il v'Ishteri" apply to such cases? Rava rules that "Ho'il v'Ishteri" does not apply to a Heter that the Torah gives! The cases of Yefas To'ar and Eved Ivri are similar to the case of Heter, since the Torah never prohibited these women under such circumstances. Those cases are not like the case of Tum'ah which is Dechuyah b'Tzibur and permitted only out of necessity.
(a) TOSFOS in Yevamos (8a, DH Rava) points out that in the Gemara there, Rava seems unwilling to accept the principle of "Ho'il v'Ishteri, Ishteri." The Gemara there says that since the Torah permits Yibum with an "Eshes Ach" (the wife of one's deceased brother), if the Yevamah became an "Achos Ishah" after her husband died (the surviving brother married the widow's sister), "Ho'il v'Ishteri" should apply. Rava there argues and says that there is no logical reason to permit Yibum with "Achos Ishah." Tosfos asks why Rava does not accept the principle of "Ho'il v'Ishteri."
In his first answer, Tosfos suggests that Rava disagrees with the entire principle of "Ho'il v'Ishteri, Ishteri," and he does not permit a Tevul Yom for Keri who is a Metzora to extend his hands into the Azarah. The TUREI EVEN (Megilah 3b) comments that this seems to be consistent with Rava's statement in the Gemara here. However, Tosfos continues and says that perhaps Rava agrees with the principle of "Ho'il v'Ishteri." Nevertheless, he does not apply it for Yibum since the Isurim of "Eshes Ach" and "Achos Ishah" are completely different Isurim, as opposed to the Tum'ah of Keri and Metzora, both of which are types of Tum'ah and thus are related.
TOSFOS REBBI AKIVA EIGER (Yevamos 1:3) explains that Tosfos, in his second answer, maintains that Rava does not disagree with the principle of "Ho'il v'Ishteri." Rather, Rava suggests that, if anything, it is more logical to say "Ho'il v'Ishteri" in a case of Dechiyah than in a case of Heter. However, he agrees that in a case of Heter, "Ho'il v'Ishteri" applies. (See also KEREN ORAH here.)
According to the second answer of Tosfos, the question of the Pri Megadim does not begin. Rava agrees with the principle of "Ho'il v'Ishteri," and, therefore, he agrees with the way that Rav applies that principle in Kidushin (in the cases of Yefas To'ar and Eved Ivri).
However, according to the first answer of Tosfos, the question remains.
(b) Another question may be asked on the Gemara in Kidushin. It is clear from the Gemara here that "Ho'il v'Ishteri" applies only when there originally was a single Isur which the Torah permitted, and afterwards a second Isur took effect. Since the first Isur is permitted, the second one is permitted as well. (See RASHI, DH Tum'ah Ishtera'i.) In the cases of Yefas To'ar and Eved Ivri, Rav applies "Ho'il v'Ishteri" to permit two Isurim that occur simultaneously.
One might argue that the Gemara does not mean that the Heter must precede the second Isur, but rather the opposite: the second Isur may not precede the Heter. If they occur simultaneously, then "Ho'il v'Ishteri" does apply. However, it seems logical that the Sugya here and the Sugya in Kidushin apply "Ho'il v'Ishteri" in two completely different ways, as will be explained below.
The Gemara here understands that the Torah clearly permits the Isur of Tum'ah in the Azarah only for a Metzora. The Torah does not permit this for a Ba'al Keri. Similarly, the Tum'ah which is Mutar b'Tzibur is only Tum'as Mes, and not Tum'as Zav. The Gemara's question is whether the Torah will allow the second Tum'ah in the Azarah because the first one already became permitted through the special dispensation of a Metzora. This is where Rava does not apply the rule of "Ho'il v'Ishteri."
In contrast, the Gemara in Kidushin is discussing the original Heter that the Torah gives for an Eved Ivri to marry a Shifchah Kena'anis or for a Jewish warrior to take a Yefas To'ar. The Torah does not say clearly what type of Eved Ivri, or what type of warrior, it is discussing. One can understand the Torah as referring only to a Yisrael, or as referring to both a Yisrael and a Kohen. There, in Kidushin, Rav says that it is logical to assume that the original Heter that the Torah gave was not only for a Yisrael but for a Kohen as well, since, in any case, the Torah is permitting an Isur, and thus it is probably permitting the double Isur of the Kohen just as it is permitting the single Isur of the Yisrael. Since the Torah does not clearly limit the Isur, even Rava would agree that "Ho'il v'Ishteri" applies to permit even two Isurim that take effect simultaneously. (M. KORNFELD)