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Kidushin, 34

1) THE TYPE OF MITZVAS ASEH FROM WHICH WOMEN ARE EXEMPT

OPINIONS: The Gemara teaches that women are exempt from Mitzvos Aseh sheha'Zeman Gerama. When the Gemara mentions Mitzvos Aseh, is it referring to any Mitzvah that the Torah commands with the wording of an "Aseh" (i.e. a Mitzvah to do something, as opposed to a Mitzvah to refrain from doing something), or is it referring to any Mitzvah that is accomplished by doing something *actively* (through "Kum v'Aseh"), as opposed to a Mitzvas Aseh which involves merely refraining from doing something (through "Shev v'Al Ta'aseh")?

(a) In a responsum, REBBI AKIVA EIGER (in TESHUVOS REBBI AKIVA EIGER 3:80) praises the questioner for his suggestion that women are exempt only from Mitzvos Aseh which involve an action ("Kum v'Aseh"). He writes that this has a strong logical basis.

This view can is also expressed by the PNEI YEHOSHUA in Beitzah (30a) and by the K'SAV SOFER (OC 56). The K'sav Sofer adds that this conforms with the logic of the AVUDRAHAM for why women are exempt from Mitzvos Aseh sheha'Zeman Gerama. The Avudraham explains that the reason women are exempt is because they are too busy to be limited to a certain time during which to do a Mitzvah. A Mitzvah which is accomplished passively (by not doing anything -- "Shev v'Al Ta'aseh") -- even though it is limited to a certain time -- does not limit the woman and she is able to fulfill the Mitzvah while still fulfilling her other obligations. (See Insights to 35a.)

A practical consequence of this might be whether women are obligated to observe the additional Inuyim Yom Kipur other than the Inuyim of eating and drinking (such as washing, wearing leather shoes, and marital relations), according to those opinions which hold that the Inuyim are all d'Oraisa. The Lo Ta'aseh, and the liability for Kares, for transgressing the Inuyim of Yom Kipur apply only to eating and drinking. If women are exempt from all Mitzvos Aseh, even those that are fulfilled passively, then they should be exempt from the other Inuyim of Yom Kipur. If, however, women are exempt only from Mitzvos Aseh that are performed actively, then they should be obligated to observe the additional Inuyim, so those are Mitzvos Aseh which are done passively. See MINCHAS CHINUCH (313:1).

Another practical consequence is whether women are obligated to observe Tosefes Shabbos, according to those who hold that it is a Mitzvas Aseh d'Oraisa (see Rosh Hashanah 9a). If women are exempt from all Mitzvos Aseh, then they should be exempt. If, however, women are exempt only from Mitzvos Aseh that are performed actively, then they should be obligated to fulfill the Mitzvas Aseh of Tosefes Shabbos. (This practical consequence is more relevant with regard to Tosefes Yom Tov and Tosefes Yom Kipur. With regard to Tosefes Shabbos, women certainly should be obligated because of the Hekesh of "Shamor" and "Zachor" which obligates women in all Mitzvos of Shabbos that apply to men. See MINCHAS CHINUCH 297:3.)

(b) However, REBBI AKIVA EIGER and the K'SAV SOFER, as well as the TZELACH (Beitzah 30a; see also SHITAH MEKUBETZES there), point out that the Gemara does not seem to differentiate between a Mitzvas Aseh performed actively ("Kum v'Aseh") and a Mitzvas Aseh performed passively ("Shev v'Al Ta'aseh"). The Gemara in Sukah (28b) cites a verse to show that women are obligated to observe Tosefes Inuy on Yom Kipur. The Gemara explains that we might have thought that women are exempt: since there is no Lo Ta'aseh or Kares for transgressing Tosefes Inuy, therefore (since it is only a Mitzvas Aseh) women should not be obligated in the Mitzvah, had the verse not included them (with the word "ha'Ezrach"). It seems clear from the Gemara there that women would be exempt even from passive Mitzvos Aseh, such as Tosefes Inuy, unless the verse says otherwise.

Perhaps we can argue that the Mitzvah of Inuy on Yom Kipur is not a passive Mitzvah, but it is an active one. It is active because the person is required to change from his normal way of acting by accepting the Tosefes Inuy and stopping himself from eating, and also because the Inuy leaves a physical impression on the body (it makes the person weak). (The CHELKAS YOAV OC #30 gives a similar differentiation.) Support can be brought to this from TOSFOS in Nazir (28b, DH B'no) who suggests that while the Mitzvah of Chinuch applies only to a Mitzvah of "Kum v'Aseh," it nevertheless applies to Inuy on Yom Kipur because Inuy is a Mitzvah that is fulfilled actively, through "Kum v'Aseh."

Rebbi Akiva Eiger and the K'sav Sofer suggest further that perhaps once the verse teaches that a woman is obligated in Tosefes Inuy, we could learn from there that a woman is obligated in all Mitzvos Aseh that are performed passively, through "Shev v'Al Ta'aseh."

Perhaps we may bring another proof that women are exempt from passive Mitzvos Aseh. The Gemara her derives from the Mitzvah of "Mora Av v'Em" (fearing one's parents) that women are obligated to observe Mitzvos Aseh *she'Ein* ha'Zeman Gerama. Mora, showing fear, is a passive Mitzvah (as we see from the Gemara at the end of 31b), and nevertheless women are obligated only because it is a Mitzvah *she'Ein* ha'Zeman Gerama. This implies that women are indeed exempt from a passive Mitzvah that is limited to a certain time. The Acharonim, however, do not mention this Gemara as a proof. Perhaps they consider "Mora" to be an active Mitzvah (for example, one who is sitting in her father's seat is obligated to get out of the seat).

Although the K'sav Sofer shows that TOSFOS in Kesuvos (47a, DH d'Masar) seems to imply that women *are* obligated in Tosefes Yom Tov, implying that he holds that women are obligated in Mitzvos Aseh that are done passively, nevertheless he and the other Acharonim prove that many Rishonim clearly reject this logic and equate all Mitzvos Aseh, whether they are done passively or actively. This is the opinion of TOSFOS here (DH Ma'akeh) who writes that women are exempt from the Mitzvas Aseh of Shevisah on Yom Tov, and they are only obligated in the Lo Ta'aseh. This is also the view of the RAMBAN, RITVA, and RAN, who write that women would have been exempt from the Mitzvas Aseh of Shevisas Yom Tov had it not been associated with a Lo Ta'aseh.

(The questioner who asked Rebbi Akiva Eiger about this apparently suggested that the "Yesh Mefarshim" cited by Tosfos might argue with Tosfos regarding this point. The "Yesh Mefarshim" holds that women are obligated in passive Mitzvos Aseh, and that is how the "Yesh Mefarshim" would answer the question that Tosfos asks on their opinion. This might also be the opinion of Tosfos in Kesuvos cited by the K'sav Sofer.)

Hence, according to most Rishonim, women should be exempt from the Inuyim (other than eating and drinking) on Yom Kipur, and from Tosefes Yom Tov (and from the Mitzvos Aseh of Shevisas Behemah v'Avadim on Yom Tov).

34b

QUESTION: The Gemara mentions an opinion that holds that "Shnei Chesuvim ha'Ba'im k'Echad" *are* "Melamdin" -- when the Torah expresses a certain Halachah in two subjects, we *do* learn from there to all other subjects, and we do not say that the Halachah is limited to those two subjects alone.

RASHI earlier (24a, DH Ein Melamdin) explains the logic behind the opposing opinion that holds "Shnei Chusvim ha'Ba'im k'Echad *Ein* Melamdin." He explains that when two verses express the same Halachah regarding two different subjects, we cannot apply the Halachah elsewhere through a Binyan Av, because the fact that the Torah found it necessary to repeat the law the second time shows that the Halachah is *not* meant to be applied automatically in all situations.

What, though, is the logic for the opinion that we *do* apply the Halachah to all situations when the Torah teaches it in two places?

ANSWER: The SEFER KERISUS 5:1:1 (cited by HALICHOS OLAM 4:4:2) explains that the Gemara teaches that something that is derived from a Kal v'Chomer, "Tarach v'Chasav Lah Kra" -- the verse still goes out of its way to write it. Similarly, something that is learned from a Binyan Av, the verse still goes out of its way to write it (TOSFOS, Shabbos 131b, DH Iy; RAN, Nedarim 3a, DH Lindor). Therefore, if the Torah says the Halachah another time even though we can learn it from a Binyan Av, it is because "Tarach v'Chasav Lah Kra," and thus we can still learn from the first place that it appears to all other situations. If, however, the Torah writes it a third time, then "Ein Melamdin," we cannot learn from it to all other situations, because the verse would not go out of its way to write the Halachah *twice* when it could be learned from a Binyan Av.