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Beitzah 36

1) DIFFERENCES BETWEEN THE LAWS OF SHABBOS AND YOM TOV

QUESTION: The Gemara compares the laws of moving bundles of produce in a storehouse to make room for students or guests on Shabbos, to the laws of moving fruit from the roof so it should not spoil in the rain on Yom Tov. Specifically, the Gemara compares the two with regard to four details: (1) May more than four or five basketfuls be moved? (2) May the entire area be cleared (without leaving any of the produce behind)? (3) May the produce be moved to a different house, or roof? (4) May it be lifted, or must it be shoved over without lifting?

In the first two questions, the Halachah is clear with regard to Shabbos (it is prohibited), but the Gemara asks if we should be more lenient with regard to moving fruit from a roof on Yom Tov. In the second pair of questions, the Halachah is clear with regard to moving fruit from a roof on Yom Tov (it is prohibited), but the Gemara asks if we should be more lenient with regard to moving produce in a storehouse on Shabbos.

Altogether, the Gemara proposes two reasons why we should be more Machmir on Shabbos (Shabbos is Chamur; no monetary loss is involved), and two reasons why we should be more Machmir on Yom Tov (it may cause Zilzul Yom Tov; there is no Bitul Beis ha'Midrash involved). In each of the four questions, however, the Gemara seems to propose a *different* combination of reasons why the laws of Shabbos should be more stringent than the laws of Yom Tov, or vice versa. Why didn't the Gemara stick to the same arguments in each of the cases? It should have used all four reasons each time! (See Chart #13, in which we have listing the reasons the Gemara offers to differentiate between Shabbos and Yom Tov in each of the different questions.)

ANSWERS:

(a) The PNEI YEHOSHUA suggests that each of the questions of the Gemara were asked at a different time and by different Amora'im. Each of the Amora'im mentioned reasons that appeared to him to be most important.

(b) The Girsa of the DIKDUKEI SOFRIM in our Sugya, seems to be a more precise Girsa (see Chart #13). According to that Girsa (which the Shitah Mekubetzes endorses, as we shall explain), the Gemara is very careful about which arguments it presents at which stage. Let us deal with each of the questions in the Gemara individually.

1. In the first question, the Gemara only left out one reason to differentiate between Shabbos and Yom Tov: that Shabbos is more Chamur. However, the Dikdukei Sofrim includes that reason, but leaves out another one: that there is no monetary loss. The RITVA, in the SHITAH MEKUBETZES endorses this Girsa. He proves that this Girsa is correct, and that the Gemara could not mention monetary loss as a factor, since monetary loss is not a factor that can permit moving more than is moved on Shabbos for Bitul Beis ha'Midrash. This is evident from the fact that our Mishnah explicitly says that the fruit may be moved only on Yom Tov, but *not on Shabbos*. Yet moving produce for Bitul Beis ha'Midrash *is* permitted even on Shabbos! (See the RE'AH and RABEINU DAVID, who provide a somewhat forced answer to retain the Girsa of our Gemaras.) This is why the Gemara leaves out the argument of monetary loss when discussing whether more than four or five boxes may be moved on Yom Tov.

It is for this reason that the reasoning that there is a loss of fruit on Yom Tov is left out from the discussion of the second question as well. What is prohibited on Shabbos for Bitul Beis ha'Midrash cannot be permitted on Shabbos due to loss of fruit. (Dikdukei Sofrim *does* include the reason of loss of fruit in the discussion of the second question, as do the RE'AH and RABEINU DAVID. However, it is clear from both the Ritva and the Shitah Mekubetzes in the name of Mori NR'U that this did not appear in their Girsa; the Re'ah and Rabeinu David who had the Girsa explained it similarly to the way they explained it in the first question of the Gemara, to which we alluded in the previous paragraph.)

In the last two questions, however, the Halachah on *Yom Tov* is known; it is prohibited to move from roof to roof or to lift the fruits. The question of the Gemara is whether it is permitted to do so on Shabbos. In those cases, it is legitimate for the Gemara to suggest that if it is prohibited on Yom Tov, although loss of fruit is involved, it should be prohibited on Shabbos as well. (Even though Bitul Beis ha'Midrash permits *more* than loss of fruit, the Gemara assumes, at this point, that it is not sufficient reason to permit moving the fruit from roof to roof or to lift it.)

2. In the second question (emptying the entire area), the Gemara leaves out the reasoning of loss of fruit (as discussed above), and in addition it leaves out the argument that there might be Zilzul Yom Tov.

The SHITAH MEKUBETZES explains (in the name of "Mori NR'U) that the reason for this is because this question is not one of a simple Isur d'Rabanan of Tircha, but of a Gezeirah d'Rabanan that one might fill in furrows in the ground. Since there is a chance that the person will transgress an Isur Kares by doing so on Shabbos, there is no question that Shabbos is more Chamur than Yom Tov in this matter, and not vice versa. It may be added that there actually is no Zilzul Yom Tov at all in the case of emptying the entire area. Zilzul Yom Tov is applicable to an act that might be looked at as an unnecessary Tircha. Emptying the area, if it only contains four or five boxes, is no more of a Tircha than moving the same four or five boxes when others are left over. The only reason to prohibit it is the Gezeirah that one might do a Melachah (smoothing out furrows), but not because of any Zilzul.

3. & 4. In its *fourth* question, the Gemara only takes into account the arguments of loss of fruit and Bitul Beis ha'Midrash. Although according to our Girsa, the Gemara brings in other arguments in the *third* question, in the DIKDUKEI SOFRIM it again mentions only the arguments of loss of fruit and Bitul Beis ha'Midrash, as in the fourth question. This is the Girsa of the RE'AH and the SHITAH MEKUBETZES as well. (See what the Shitah writes, citing Mori NR'U, to explain the omissions.)

It would appear that in the latter two questions, only a minimal Tircha is involved (lifting the fruit instead of pushing it; pushing it to another house instead of into the same house). Therefore, there is no reason to prohibit the act due to the severity of Shabbos or the Zilzul of Yom Tov. The severity of Shabbos or Yom Tov are brought in only in the first question, to prohibit moving an *unlimited* number of boxes of fruit, or in the second question, when emptying the area might cause a violation of the laws of Shabbos by smoothing out a furrow (as we discussed in 2.). Therefore, in the final two questions the only consideration is whether or not this minor Tircha is really necessary; does it have a benefit that justifies performing such an act? If this is the question, it is appropriate that the Gemara discusses permitting it because of Bitul Beis ha'Midrash or in order to prevent the loss of fruit. (M. Kornfeld)

36b

QUESTION: Abaye was troubled that his millstone was being ruined by a leak coming from the roof on Yom Tov. Rabah instructed him to bring his bed into the mill-room, so that the millstone would then be considered a "Graf Shel Re'i," an unpleasant item to have nearby one's living quarters, and then Abaye would be permitted to move it away.

How could Rabah rule that it is permitted, l'Chatchilah, to make a "Graf Shel Re'i?" We learned earlier (21b) that it is prohibited to make a "Graf Shel Re'i!" l'Chatchilah (TOSFOS DH Teisi)

ANSWERS:

(a) TOSFOS answers that making a "Graf Shel Re'i" l'Chatchilah is permitted in this case, because it is a situation of considerable financial loss (the loss of the millstone).

(b) Alternatively, TOSFOS says that this is not considered making a "Graf Shel Re'i" l'Chatchilah, because the rain was already dripping into the mill-room, and some solution had to be found.

(c) The HAGAHOS ASHIRI says that this was not a case of making a "Graf Shel Re'i" at all. He did not *make* a Graf; rather, he moved his bed into the mill-room, and as a result the millstone become repugnant to him, thus permitting him to move it out. The Graf was always there, it just was not repugnant to him until he moved in. (RASHI on Daf 21b DH v'Chi clearly rejects this argument, though.)

(d) RAV YAKOV D. HOMNICK, Shlit'a, suggests a novel approach. He points out that in the Gemara earlier, Shmuel was quoted as saying that it is permitted to invite a Nochri to one's home on Shabbos. The Gemara just before explained that it was not permitted, because by doing so one is making a "Graf Shel Re'i" l'Chatchilah (by serving wine in a cup to the Nochri, the cup becomes a "Graf Shel Re'i" with the leftover wine of the Nochri). Shmuel seemingly holds that it is permitted to make a "Graf Shel Re'i" l'Chatchilah.

Rav Homnick points out that this may be inferred from Shmuel's statement in this regard in our Sugya as well. Shmuel here states that "it is permitted to take out a Graf Shel Re'i." Rashi, throughout this Sugya, when referring to moving a "Graf Shel Re'i," consistently uses the term "l'Hotzi" (to take out; see DH Zil, DH v'Chi Osin, DH Nosen, and DH Savur). Rashi earlier, though, never mentions the term "l'Hotzi," but rather uses the terms "l'Fanos" (to move away) and "Siluk" (to remove; see 21b, DH u'l'Havi, DH v'Chi Osin). What is the reason for the change in Rashi's wording?

Rashi is alluding to a fundamental difference between the two Sugyos in the understanding of the Heter of moving a "Graf Shel Re'i." Here, Rabah and Shmuel maintain that when the Chachamim permitted moving a "Graf Shel Re'i" for the sake of a person's comfort, they completely rescinded the container's status of Muktzah (the Isur of Muktzah is "Hutrah"). As such, it is permitted to make a "Graf Shel Re'i" *l'Chatchilah* in order to "take it out" as one would carry any permitted utensil, since one is doing nothing wrong by moving it, for it is not considered Muktzah at all.

Ravina, earlier (21b), however, maintains that the Rabanan did not remove the status of Muktzah from the container, but they merely permitted this form of Muktzah to be moved (the Isur of Muktzah is "Dechuyah"). Rashi refers to moving the "Graf Shel Re'i" as "moving it away" or "removing it," but not as "taking it out," in order to express this difference. As such, according to Ravina it is not permitted to make a "Graf Shel Re'i" l'Chatchilah which will require one to move an item of Muktzah! Shmuel there, who allow inviting a Nochri on Shabbos, follow their opinion as expressed in our Sugya that the Heter of moving a "Graf Shel Re'i" is that the status of Mutkzah was completely removed from the container, and therefore it is permitted to make a "Graf Shel Re'i" l'Chatchilah (and thus to invite a Nochri to one's home on Shabbos). (Rav Homnick explained that the Mar Shmuel cited in the Sugya earlier was the same person as the Shmuel of our Sugya.)

QUESTIONS: The Mishnah mentions the act of Kidushin in its list of voluntary ("Reshus") acts that are prohibited on Shabbos and on Yom Tov. The Gemara asks why the Mishnah calls Kidushin a "Reshus" if getting married is a Mitzvah. The Gemara answers that the Mishnah is referring to case where one is already married and has children.

RASHI explains that the Mitzvah that one fulfills by getting married is the Mitzvah of Piryah v'Rivyah -- having children. Other than the Mitzvah of Piryah v'Rivyah, there is no inherent Mitzvah in the act of getting married. That is why the Gemara mentions not only that he already has a wife, but he already has children as well. (We might ask, though, that if the Mitzvah depends on having children, then why does the Gemara add that he already has a wife? It should suffice to say that he has children, even if he does not have a wife.)

The ROSH in Kesuvos (1:12) says that the reason why no blessing (Birkas ha'Mitzvah) is recited on the act of Kidushin is because there is no inherent Mitzvah of Kidushin; the only reason why one must get married is in order to fulfill the Mitzvah of Piryah v'Rivyah. This is consistent with our Gemara and with Rashi. However, the Rosh adds that if one wants, one may fulfill the Mitzvah of Piryah v'Rivyah without getting married at all, but merely by taking a Pilegesh (concubine).

(a) According to the Rosh, why does the Gemara here say that the reason why the Mishnah does not count Kidushin as a Mitzvah is because it is talking about a case where one already has a wife and children? It should have answered that there is no Mitzvah to marry a wife, since one could always fulfill his obligation of Piryah v'Rivyah by taking a Pilegesh! Why does the Gemara have to set up the Mishnah as referring to such an unlikely case?

(b) Second, the RAMBAM (Hilchos Ishus 1:2) writes that it is a Mitzvas Aseh to get married. What does the Rambam do with our Gemara? The Rambam seems to say that every time one marries a woman, he fulfills a Mitzvah! If so, what difference does it make if he already has a wife or children?

ANSWERS:

(a) It must be that since it is uncommon for a woman to agree to a man to become his Pilegesh (since she has no guarantee that the man will take care of her and her children, as she receives no Kesuvah and there is no Kidushin), the Gemara considers Kidushin a Mitzvah, because in practice one will not be able to fulfill Piryah v'Rivyah by taking a Pilegesh, and he will have no choice but to get married with Kidushin.

The Rosh in Kesuvos writes that no blessing is recited on the act of Kidushin because it is not a Mitzvah, since one could theoretically fulfill the Mitzvah of Piryah v'Rivyah by taking a Pilegesh. Even though it is unlikely that one will find a woman to be a Pilegesh, nevertheless since there exists the possibility of fulfilling Piryah v'Rivyah without Kidushin, no blessing is recited on Kidushin because it is not considered an intrinsic part of the Mitzvah of Piryah v'Rivyah.

(b) The MAGID MISHNAH cites RAV AVRAHAM BEN HA'RAMBAM who was asked a similar question concerning the opinion of the Rambam. He answered that the Rambam did not mean that the act of Kidushin is a Mitzvah, but rather that the act of *Nisu'in* is a Mitzvah (which is expressed in the wording of the Rambam in his list of Mitzvos at the beginning of Hilchos Ishus). Therefore, when the Rambam writes that Kidushin is a Mitzvah, he means that it is the beginning of the fulfillment of the Mitzvah of Nisu'in. In our Sugya, too, the Gemara does not consider Kidushin a Mitzvah because without the Nisu'in, one has not completed the Mitzvah.

Another possibility is that the Rambam does not mean that it is a Mitzvas Aseh to marry a wife with Kidushin. Rather, he means that there is an *Isur Aseh* to take a woman *without* Kidushin (the Rambam holds that taking a Pilegesh is Asur, as he writes in Hilchos Melachim 4:4). The Magid Mishnah mentions this possibility later in Hilchos Ishus (1:4). Accordingly, there is no actual Mitzvah in the act of Kidushin.