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Yevamos, 6

1) A "HECHSHER MITZVAH" BEING "DOCHEH" A "LO TA'ASEH"

OPINIONS: The Gemara searches for a source that an Aseh is Docheh a Lo Ta'aseh that has Kares. It suggests that we learn it from the Mitzvah of Kibud Av va'Em. The Torah specifically teaches that the Mitzvah of Kibud Av va'Em is *not* Docheh the Lo Ta'aseh of Shabbos (such as if one's parent tells him to desecrate Shabbos), which is a Lo Ta'aseh that has Kares. The fact that the Torah specifically states that Kibud Av va'Em is not Docheh the Lo Ta'aseh of Shabbos implies that in all other cases, an Aseh *is* Docheh a Lo Ta'aseh that has Kares.

The Gemara replies that no proof can be deduced from Kibud Av va'Em, because perhaps the Torah is saying that the Mitzvah is not Docheh a Lo Ta'aseh of Shabbos that does *not* have Kares, such as the Isur of Mechamer (leading an animal), and thus we can make no inference from that verse with regard to a Lo Ta'aseh that has Kares. The Gemara asks, though, that we should learn from there the opposite -- that an Aseh is *not* Docheh even a regular Lo Ta'aseh! The Gemara proposes that the Lo Ta'aseh of Shabbos is different and is more stringent, but the Gemara refutes that answer.

The Gemara concludes that since Kibud Av va'Em is a "Hechsher Mitzvah," it differs from other Mitzvos Aseh. What does the Gemara's answer mean? What is a "Hechsher Mitzvah" in this context? The Rishonim argue how to understand it.

(a) RASHI understands "Hechsher Mitzvah" here to mean that the only way to fulfill the Mitzvah is by doing the Lo Ta'aseh. There is no way around the Lo Ta'aseh -- it must be transgressed in order to fulfill the Aseh.

Rashi understands the Gemara to be going back to its original assumption that the verse is referring to a Lo Ta'aseh of Shabbos that *does* have Kares. The verse is saying that the Mitzvah of Kibud Av va'Em is not Docheh a Lo Ta'aseh of Shabbos that has Kares, even though it is a "Hechsher Mitzvah" and in all other cases of a "Hechsher Mitzvah," the Mitzvah *is* Docheh a Lo Ta'aseh that has Kares. Without the verse, we would have thought that Kibud Av va'Em is also Docheh Shabbos, since the fulfillment of the father's desire (such as cooking for him) is not possible without also doing the Lo Ta'aseh. In the case of Yibum with a woman who is an Ervah to her brother-in-law, though, it is possible to fulfill the Mitzvah by doing Chalitzah instead, and thereby avoiding the Lo Ta'aseh that has Kares.

In short, according to Rashi, the Gemara is saying that an Aseh *can* be Docheh a Lo Ta'aseh that has Kares when there is no other way to fulfill the Aseh (in this particular situation) other than by transgressing the Lo Ta'aseh. But how can that be? In practice, we never find a Mitzvah being Docheh a Lo Ta'aseh that bears the punishment of Kares!

The Gemara in Bava Metzia (32a) points out that aside from the problem that an Aseh is not Docheh a Lo Ta'aseh that has Kares, there is another reason that it should be obvious that Kibud Av v'Em (or Binyan Beis ha'Mikdash) cannot be Docheh Shabbos. Shabbos involves an Aseh *and* a Lo Ta'aseh, and we know that a Mitzvas Aseh cannot be Docheh an Aseh *and* Lo Ta'aseh (see TOSFOS DH Nigmar)! The Gemara in Bava Metzia asks this question, and answers that the Aseh of Kibud is stronger than any other Aseh, since the honor of one's parents is compared to the Hashem's own honor. That is why one would think that it is even Docheh an Aseh v'Lo Ta'aseh. (The same can be said of building the Beis ha'Mikdash, since awe for the Beis ha'Mikdash is compared to the awe of the Almighty.)

If so, why did the Gemara say we cannot learn from Kibud Av that every Mitzvah is Docheh Lo Ta'aseh she'Yesh Bo Kares because it is a "Hechsher Mitzvah?" The Gemara should have said that we cannot compare any other Mitzvas Aseh to Kibud Av because Kibud is a much stronger Mitzvah! The MAHARSHA suggests that the Gemara perhaps could have given that answer as well. Kibud is not only a Hechsher Mitzvah, but an especially strong Mitzvah in its own right as well. If so, even according to the Gemara's conclusion, it *cannot* be learned from Kibud that a normal Aseh will be Docheh a Lo Ta'aseh she'Yesh Bo Kares if there is no way to avoid the Mitzvas Aseh.

(b) TOSFOS explains that "Hechsher Mitzvah" here means the opposite of what Rashi says: an Aseh is *not* Docheh a Lo Ta'aseh -- even if it does not have Kares (such as Mechamer on Shabbos) -- when the Aseh is *only* a "Hechsher Mitzvah," meaning that it is merely preparatory to the Mitzvah and not the actual fulfillment of the Mitzvah itself. When a person leads an animal on Shabbos in order to bring an item to his father, it is only a preparatory act to the Mitzvah. The actual Mitzvah is feeding one's father.

According to Tosfos, the Gemara is not returning to its original assumption. Rather, the Gemara is maintaining its explanation that the verse is referring to a Lo Ta'aseh of Shabbos that does *not* have Kares (such as Mechamer), and it is saying that since the act of Kibud Av va'Em is only preparatory to the main Mitzvah, it is not Docheh any Lo Ta'aseh.

It appears that Rashi rejected this explanation because Mechamer is not always just a preparatory act for the Mitzvah of Kibud. When the father specifically asks his son to guide the animal for him, Mechamer is the actual fulfillment of the Mitzvah, and not just a preparatory act!

Tosfos relates to this question. He explains that although in some situations Mechamer might be the fulfillment of the actual Mitzvah of Kibud Av va'Em, nevertheless, in *most* situations Mechamer is just a preparatory act. For this reason, even when the father does ask the son to be Mechamer, Kibud will not be Docheh the Lo Ta'aseh of Mechamer. According to Tosfos, the Gemara means that something that is *usually* an act of "Hechsher Mitzvah" (preparatory to the main Mitzvah) is not Docheh a Lo Ta'aseh.

6b

QUESTIONS: The Gemara derives that Beis Din is not allowed to kindle a fire (Hav'arah) in order to kill a person who is deserving of Sereifah on Shabbos. We might have thought that it is permitted because of the principle of "Aseh Docheh Lo Ta'aseh she'Yesh Bo Kares." The Gemara concludes that Hav'arah is only a Lo Ta'aseh that does not have Kares. Since we know that an Aseh is Docheh a normal Lo Ta'aseh (that does not have Kares), therefore we need a verse to teach that in the case of Hav'arah on Shabbos, the Aseh of Misas Beis Din is *not* Docheh the Lo Ta'aseh of Hav'arah.

(a) If Hav'arah is only a Lo Ta'aseh, then on the contrary -- we should learn from here that an Aseh is *not* Docheh a normal Lo Ta'aseh (just as the Gemara asked on Daf 6a regarding Mechamer)! Why does the Gemara not make such an inference?

(b) Why do we need a verse to teach that the Aseh is not Docheh the Lo Ta'aseh in this case? The principle of "Aseh Docheh Lo Ta'aseh" obviously cannot apply in this case, because the Aseh is not being fulfilled at the same time as the Lo Ta'aseh! The Lo Ta'aseh occurs when the fire is kindled and the lead is melted, while the Aseh is fulfilled only when the person is killed!

(c) How can the Gemara say that kindling the flame to fulfill the Mitzvah of Sereifah is only a Lo Ta'aseh that does not have Kares? The act also involves the Melachah of "Netilas Neshamah" on Shabbos -- killing any creature on Shabbos is certainly a Lo Ta'aseh that has Kares!

ANSWERS:

(a) The RASHBA explains that kindling the fire is only a "Hechsher Mitzvah" for the actual Aseh of killing the person, and that is why it is not Docheh a Lo Ta'aseh (as we learned on 6a; the Rashba understood Hechsher Mitzvah like Tosfos, see previous insight). The Gemara could have asked that we do not need a verse to teach us this, since we learned it from another verse earlier (6a), but the Gemara had a better question to ask.

TOSFOS and other Rishonim, however, explain that on Shabbos, in addition to the Lo Ta'aseh against desecrating Shabbos, there is also an *Aseh* to guard and observe the laws of Shabbos. That Aseh applies to all of the Isurim of Shabbos, such that any act of desecrating Shabbos involves transgressing both an Aseh and a Lo Ta'aseh. Thus, committing the act of Hav'arah involves transgressing both an Aseh and a Lo Ta'aseh (according to Rebbi Yosi), and that is why the Aseh is not Docheh the Lo Ta'aseh in this case -- because an Aseh cannot be Docheh both another Aseh and a Lo Ta'aseh. Hence, we cannot derive from here that an Aseh is not Docheh a Lo Ta'aseh alone. (Tosfos asks, though, why do we not learn from here that in all other cases of an Aseh together with a Lo Ta'aseh, an Aseh *is* Docheh both? Tosfos says that the Gemara could have asked this question, but it had a better question to ask.)

(b) The RASHBA says that indeed, the Gemara could have asked this question.

The ARUCH LA'NER says that perhaps since the Aseh of killing the perpetrator is a "Mitzvah d'Rabim," a public Mitzvah that is incumbent upon all of the Jewish people, it is a stronger Mitzvah (see TOSFOS 6a DH Nigmar) which can be Docheh a Lo Ta'aseh even when it is not done at the exact same time. The RAMBAN says that it is possible to do both at the same time by holding the lead above the perpetrator's mouth and burning it there so that it falls directly into her mouth and kills her. That is called "at the same time." The RASHBA rejects this because the two events still have to happen at two separate times. The lead does not go into the mouth at the same time it is kindled; one event follows the other in the sequence of events.

The Ramban perhaps learns like the NIMUKEI YOSEF (Bava Metzia 32a) who says that when the *beginning* of the act that fulfills a Mitzvas Aseh is done at the same time as the Lo Ta'aseh, the two are considered to be occurring "at the same time." If the lead is held above the open mouth of the Bas Kohen, then by lighting the fire which melts the lead that drips it into her mouth, one has already begun the act that kills her. The RASHBA, though, maintains that the Aseh must be completely fulfilled at the time that the Lo Ta'aseh is being transgressed, and in this case the Mitzvas Aseh is fulfilled only after she dies.

(c) The RASHBA (TESHUVOS 1:357) writes that this is essentially what the Gemara does ask; there still is a Meleches Shabbos involved. The Gemara mentions Bishul, but it could also mention Netilas Neshanah.

He adds, though, that the wording of the Beraisa -- and Pasuk -- implies that the Isur under discussion is that of making a fire and burning the lead, not the Isur of killing a Bas Kohen. Perhaps the verse never meant to suggest that one would think a Bas Kohen can be killed by a Jew on Shabbos -- rather, one would think that it is permitted to heat the lead, and to give it to a *Nochri* to execute the Bas Kohen on Shabbos. The verse teaches that even burning the lead is *also* prohibited, and may not be done by a Jew on Shabbos.

What the Gemara does ask is why we would have thought that *burning the lead* is permitted -- that very act bears with it the transgression of Bishul, aside from the transgression of Hav'arah, and Bishul on Shabbos is punishable with Kares.