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Chulin, 141

1) A "MITZVAS ASEH" THAT CONFLICTS WITH ANOTHER "MITZVAS ASEH" AND A "LO SA'ASEH"

OPINIONS: Rava teaches that the extra word, "Teshalach," in the verse "Shale'ach Teshalach" (Devarim 22:7) is necessary to teach that one must send away the mother bird even when it is needed for a Mitzvah, such as for the Taharah process of a Metzora. Without the word "Teshalach" we would have thought that it is permitted to take a mother bird that is sitting on its young for the sake of a Mitzvah. The verse therefore says, "Teshalach," teaching that one must send away the mother bird and may not take it even for a Mitzvah.

Rebbi Aba brei d'Rav Yosef asks that this cannot be the intent of "Teshalach," because even without that word we would know that one may not take a mother bird from its young in order to do a Mitzvah with it. The Mitzvah of using a bird for the Taharah of a Metzora is a single Mitzvas Aseh, while taking a mother bird from its young is forbidden by both a Mitzvas Aseh (one must send it away) and a Lo Sa'aseh (one may not take it from upon its young)! A Mitzvas Aseh does not override an Aseh and a Lo Sa'aseh; a Mitzvas Aseh can override only a lone Lo Sa'aseh!

In its first answer, the Gemara says that the verse is necessary in a case in which one already took the mother bird. When he then keeps the bird for the Taharah of a Metzora, he is no longer transgressing a Lo Sa'aseh, and he is left with only a Mitzvas Aseh to send away the bird. Without the word "Teshalach" we would have thought that the other Mitzvah overrides the Mitzvah to send away the bird.

Since an Aseh is able to override a Lo Sa'aseh, when one acts improperly and performs the Aseh that conflicts with another Aseh and a Lo Sa'aseh -- thereby doing an act that is Mevatel another Aseh and transgresses a Lo Sa'aseh, does the fact that he fulfilled an Aseh override at least the Lo Sa'aseh, such that he is not considered to have transgressed the Lo Sa'aseh but only the Aseh, or does the Lo Sa'aseh remain in place because it is joined by an Aseh, and the person is liable for both?

(a) TOSFOS proves from the Gemara's answer here that even when a Lo Sa'aseh joined by an Aseh conflicts with an Aseh (such as the Lo Sa'aseh and Aseh of Shilu'ach ha'Ken that conflict with the Mitzvah of Taharas Metzora), the Lo Sa'aseh remains in place. If the person would be exempt from the Lo Sa'aseh because of the Aseh that he is performing, then the Gemara would not need to say that the person already took the bird for Taharas Metzora; *every* time one takes a bird for Taharas Metzora, only an Aseh is violated, since the Lo Sa'aseh is suspended by the Aseh of Taharas Metzora!

(b) Tosfos quotes the view of the RIVA who asserts that the Lo Sa'aseh is indeed suspended in such a situation. One who takes a mother bird from its nest in order to use it for Taharas Metzora violates only an Aseh but not a Lo Sa'aseh, and he does not receive Malkus for transgressing a Lo Sa'aseh. (Tosfos suggests that although he receives no Malkus, there is still an Isur of Lo Sa'aseh to take the mother bird.)

Perhaps this argument depends on the logic behind why an Aseh overrides a Lo Sa'aseh.

The MAHARIK (Shoresh 139) explains that an Aseh overrides a Lo Sa'aseh simply because an Aseh is a stronger obligation than a Lo Sa'aseh, and a stronger Mitzvah can "push aside" ("Docheh") a weaker one. (See also RAMBAN to Shemos 20:8, DH Zachor.)

RABEINU NISIM GA'ON in Shabbos (133a) understands the principle differently. He explains that the Aseh does not really override or push away the Lo Sa'aseh at all. Rather, in situations where a Lo Sa'aseh comes in conflict with an Aseh, the Torah did not apply the Lo Sa'aseh in the first place. That is, the Torah did not give the commandment to observe the Lo Sa'aseh when it is in conflict with an Aseh. The applicability of the Lo Sa'aseh is contingent upon there being no Aseh opposing it. If there is an Aseh opposing it, then the prohibition of the Lo Sa'aseh was never said in the first place.

According to the logic of the Maharik, it is obvious that when an Aseh opposes a Lo Sa'aseh together with an Aseh, the first Aseh is *not* stronger than the two Mitzvos that oppose it, and thus nothing is overridden by the single Aseh. Rather, the Aseh itself is annulled by the two Mitzvos that oppose it.

In contrast, according to the logic of Rabeinu Nisim Ga'on, even in a case in which the Aseh is opposed by both a Lo Sa'aseh and an Aseh, it is possible that the Torah did not command us to observe the Lo Sa'aseh when it is opposed by an Aseh. Even though the Aseh does not succeed in overriding the Lo Sa'aseh and Aseh that oppose it, the Lo Sa'aseh nevertheless does not apply. (M. Kornfeld)

QUESTION: In the Mishnah, Rebbi Yehudah and the Chachamim argue about a case in which a person takes a mother bird from upon its young, thereby transgressing the Lo Sa'aseh of "Lo Sikach ha'Em Al ha'Banim" (Devarim 22:6). Rebbi Yehudah maintains that he is punished with Malkus, and he no longer can rectify his transgression by sending away the mother bird. The Chachamim maintain that he may rectify his misdeed by sending away the mother bird and avoid getting Malkus.

The reasoning of the Chachamim is clear. They maintain that the prohibition of taking the mother bird from upon its young is a "Lav ha'Nitak l'Aseh," a Lav that requires a Mitzvas Aseh to be performed. One does not receive a punishment of Malkus for transgressing such a Lav, because the person can fulfill the Mitzvas Aseh and rectify the Lav, negating the necessity for Malkus.

What, though, is the reasoning of Rebbi Yehudah? The Gemara (141b) concludes that he agrees with the principle that one does not receive Malkus for a "Lav ha'Nitak l'Aseh." The reason why he says that one receives Malkus for taking the mother bird is because he holds that the Aseh of "Shale'ach Teshalach" precedes the Lav. That is, the Torah commands one to send away the mother bird only when one finds a mother bird sitting on its nest. When one has already transgressed the Aseh and the Lo Sa'aseh by taking the mother bird, the Aseh no longer applies.

What, though, compels Rebbi Yehudah to learn that this is the nature of the Aseh, and that it does not apply after the Lo Sa'aseh was transgressed?

ANSWER: The CHASAM SOFER suggests that the underlying point of the argument between Rebbi Yehudah and the Chachamim is whether the Aseh of "Shale'ach Teshalach" is an entirely independent Mitzvah in itself, or whether it is primarily a way to rectify the Lav once one has taken the mother bird. According to the Chachamim, the Aseh is primarily a way of rectifying the Lav. Consequently, there is no Mitzvah to purposely approach a nest and send away the mother bird when one has no need or intention to take the eggs. Rather, once one wants to take the eggs and he grasps the mother bird to move her, he must send her away in order to avoid transgressing the Lav.

This also seems to be the understanding of the RAMBAM, who does not mention the Aseh of "Shale'ach Teshalach" in the laws of Shilu'ach ha'Ken (Hilchos Shechitah 13). He discusses only the Lav, and the act of rectifying it with the Aseh.

Similarly, the RASHBA (Teshuvos 1:18) quotes RABEINU YOSEF BEN PELET who says that no blessing is recited for Shilu'ach ha'Ken, because one does not recite a blessing for a Mitzvah that one does as a result of an Aveirah. Just as the Torah does not command a person to steal in order to fulfill the Mitzvah of returning the stolen object, the Torah does not command a person to take the mother bird in order to fulfill the Mitzvah of sending it away. (The RA'AVAD, quoted by the AVUDRAHAM (p. 18), questions the Rashba's logic. When one takes the mother bird with specific intent to send her away, there is no Aveirah being committed, and thus why should one not recite a blessing? The Rashba seems to maintain that there is no independent Aseh whatsoever; the requirement to send away the mother bird is solely a way to avoid transgressing the Lav.)

However, there are other sources that indicate that there is an independent Mitzvas Aseh to send away the mother bird, and the Aseh is not related to the Lav at all. One proof for this is the fact that the Torah promises reward for one who sends away the mother bird (Devarim 22:7), and the Gemara calls this a "*Mitzvas Aseh* she'Matan Secharah b'Tzidah." The reward is for doing a Mitzvah and not for merely refraining from an Aveirah. Similarly, the Gemara in Kidushin (34a) calls Shilu'ach ha'Ken a "*Mitzvas Aseh* she'Ein ha'Zeman Gerama."

If "Shale'ach Teshalach" is an independent Mitzvas Aseh, then, in practice, why does the Chasam Sofer argue with the ruling of the Chavos Ya'ir (see Insights to Chulin 139:3) and say that there is no Mitzvah to approach a nest and send away the mother bird when one has no need for the eggs? Second, why does the Rambam make no mention of such a Mitzvas Aseh? Third, why does the Rashba say that no blessing is recited for performing the Mitzvah?

It seems that the answer is as follows. The Gemara in Kidushin (34a) says that women are obligated to fulfill the Mitzvah of Shilu'ach ha'Ken because it is a "Mitzvas Aseh she'Ein ha'Zeman Gerama," it is not dependent on a specific time. The Rishonim there ask why we need this reason to obligate women in the Mitzvah? Women should be obligated because there is a Lav that prohibits taking the mother bird from upon its eggs, and all Lavim apply to women!

The RITVA quotes the RAMBAN who answers that since the primary obligation is the Mitzvas Aseh and the Lav is given only in order to strengthen the Aseh, if women would be exempt from the Aseh, then they would also be exempt from the Lav. Therefore, we need the reason of "Mitzvas Aseh she'Ein ha'Zeman Gerama."

The RAN, however, argues. He asks that since there is a Lav, women would be obligated in the Aseh even if it would be a "Mitzvas Aseh sheha'Zeman Gerama." The Ran understands that the Lav is the primary obligation, and the Aseh is given only in order to strengthen the Lav.

While the Ramban and Ran argue whether the Aseh is the primary obligation or whether the Lav is the primary obligation, we see that both views maintain that there are two separate commands, a Lav and an independent Aseh.

Accordingly, we can understand why there is no Mitzvah to send away a mother bird when one has no need for the eggs, why the Rambam omits mention of the independent Mitzvas Aseh, and why no blessing is recited for performing the Aseh. Even though the Aseh is an independent Mitzvah, there is no obligation to approach a nest and send away the mother bird, since the Aseh is only a form of strengthening the Lav, according to the Ran. The Aseh applies only where the Lav may be transgressed, which is only when one takes the mother bird into his hands, and not when one merely passes by and sees a nest.

Similarly, the Rambam does not mention the Mitzvas Aseh, because it is not the primary obligation; it is given only in order to strengthen the Lav, as the Ran says. Likewise, the Rashba says that no blessing is made when performing the Mitzvah, because the primary obligation of the Torah is the Lav, and not the Aseh. We do not make a blessing on a Lav (as the Rashba writes in Teshuvos 3:283). (See EVEN HA'SAPIR.) (Mordechai Zvi Dicker)

141b

QUESTION: The Gemara asks how far must one send away the mother bird. Rav Yehudah answers, "Until she goes forth from his hands."

RASHI (DH Ad Kamah) explains that the Gemara's question is how far must one send away the bird when one already took hold of it (and has already transgressed the Mitzvah of sending her away). The Gemara is asking how the person may rectify his transgression by performing the Aseh of send away the bird.

Why does Rashi explain that the Gemara's question applies only when one already transgressed and took the bird? Perhaps the Gemara is asking simply how far must one send away the bird *initially*, when one wants to take the eggs! Why does Rashi limit the question of the Gemara to a case in which one already took the bird? (RASHASH)

ANSWERS:

(a) Perhaps Rashi agrees with the opinion that maintains that the Mitzvas Aseh of "Shale'ach Teshalach" is not an entirely independent Mitzvah in itself, but rather it is primarily a way to rectify the Lav once the person has taken the mother bird (see previous Insight). Accordingly, Rashi explains that the Gemara's question applies only to a case in which one wants to take the eggs and he grasps the mother bird to move her; at that point he becomes obligated to send her away in order to avoid transgressing the Lav.

(b) Alternatively, perhaps Rashi understands from the Gemara's answer, "Until she goes forth from his hands," that the question is referring to a case in which he had already taken hold of the bird in his hands. Had the Gemara been asking how far must one send away the bird initially, then the answer would have been phrased differently -- "Until she goes forth from the *reach* of his hand." (M. Kornfeld)

QUESTIONS: The Gemara relates that it happened that a person took a mother bird from upon its young, plucked its feathers, and then sent it away. Rav Yehudah gave him Malkus and ordered him to send it away after its feathers grow back.

The Gemara asks in accordance with which Tana was Rav Yehudah acting? He was not acting in accordance with Rebbi Yehudah, because Rebbi Yehudah maintains that the person receives Malkus but does *not* have to send away the bird. He was not acting in accordance with the Chachamim, because they exempt the person from Malkus! The Gemara answers that Rav Yehudah ruled like the Chachamim, and that is why he ordered the person to send away the mother bird. The Malkus that he gave was "Makas Mardus," lashes mid'Rabanan.

(a) Why are lashes that are prescribed by the Rabanan referred to as "Makas Mardus"? What is the meaning of this term?

(b) How many lashes are given for Makas Mardus? In what ways does Makas Mardus differ from Malkus d'Oraisa?

ANSWERS:

(a) The Rishonim give two explanations for the meaning of the term, "Makas Mardus."

1. RASHI (DH Makas Mardus) explains that the word "Mardus" is related to the word "Riduy," or "humbling." These lashes are meant to humble a sinner. (We find the word used in this context in Berachos 7a.)

2. The ARUCH (Erech "Mered") writes that "Makas Mardus" refers to lashes that are given to a person because he "rebelled" ("Marad") against the Torah and the Rabanan. This is also the explanation of the GE'ONIM (cited by the NIMUKEI YOSEF in the end of Makos).

(b) There are three opinions in the Rishonim with regard to how many lashes are given for Makas Mardus.

1. TOSFOS in Nazir (20b, DH Rebbi Yehudah) and the ROSH there cite a Tosefta in Makos (3:10) that teaches that Malkus d'Oraisa is comprised of 39 lashes, but Beis Din must evaluate the strength of the person receiving the Makos in order to determine how many Makos he is fit to suffer without it endangering his life. Makas Mardus is different; the person is beaten until he either accepts to do what he is supposed to do, or "until his soul leaves him."

The Aruch (loc. cit.) similarly differentiates between the two and writes that one who transgresses a Mitzvas Aseh (by refusing to do it) is beaten until his soul leaves him, and, similarly, one who transgresses the words of the Chachamim is beaten without having his strength evaluated and without a set number of lashes.

This is also the opinion of the Ge'onim (cited by the Nimukei Yosef, loc. cit.). The RAMBAM (Hilchos Chametz u'Matzah 6:12) also writes that Makas Mardus for one who eats Matzah on Erev Pesach (an Isur d'Rabanan) is administered until he does what he is supposed to do or until his soul leaves him.

This is also the view of Rashi here, who writes that Makas Mardus involves beating without a limit (until the person accepts to do what he is supposed to do).

The RIVASH (#90) was asked how can Malkus d'Rabanan be more severe than Malkus d'Oraisa. The Rivash answered that Makas Mardus is given "until his soul leaves him" only when it is given as a preventative measure, in order to force a person to fulfill a Mitzvas Aseh mid'Oraisa that he refuses to fulfill. In contrast, when a person already transgressed a Mitzvah mid'Rabanan and Beis Din simply intends to punish him for his wrongdoing, Makas Mardus certainly has a limit. Tosfos and the Rosh in Nazir (20b) make a similar distinction.

2. The Rivash cites Tosfos (see Tosfos in Bechoros 54a, DH u'Shnei) as saying that Makas Mardus is comprised of 39 lashes, just like Malkus d'Oraisa, but they are not as powerful. They are given while the person is dressed, and without the full strength of the one administering the lashes. This is why it is not necessary to evaluate if the person will survive the lashes. Tosfos cites, as his source for this ruling, the Gemara in Kidushin (28a) that mentions 40 lashes with regard to Makas Mardus.

Some add that Makas Mardus is administered with a stick instead of a whip (see Rashi to Sanhedrin 7b, DH Makel). According to this, the word "Mardus" might come from the expression, "Rodeh b'Makel" (see Sotah 40a, Shabbos 52b).

3. However, the Rivash himself proposes that Makas Mardus is not a set number of lashes. In contrast to Malkus of the Torah, for which the number of lashes is determined by the strength of the sinner, the number of lashes given for Makas Mardus is determined by the severity of the sin.

(The Rivash adds that Beis Din never beats a person until his soul leaves him for refusing to fulfill, or to stop transgressing, a Mitzvah d'Rabanan. This is in contrast to the view of Rashi and the Rambam (according to our Girsa in the Rambam; see the commentaries there, loc. cit.), who sanction such limitless lashes even for refusing to fulfill a Mitzvah d'Rabanan.)

4. RABEINU TAM (cited by the SHILTEI GIBORIM on the MORDECHAI, Bava Basra 8:1, and by TESHUVOS RASHBASH #96) explains that the Makas Mardus for an Aveirah that was already done is comprised of only 13 lashes, and not 39. The reason the Torah prescribes 39 for Malkus d'Oraisa is because of the need to give a triple set of lashes, one on each of the two shoulders, and one on the stomach. Makas Mardus does not have to be tripled and is given only on the back, and therefore only 13 lashes are given. (See Insights to Yoma 77:1. This might be what the Aruch means when it mentions that Malkus d'Oraisa is "Meshulashos" but not Makas Mardus.)

(See also Insights to Nazir 23:1, Kidushin 28:2, Sanhedrin 26:3