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Nazir, 36

1) A "TEVUL YOM" WHO TOUCHES A PORRIDGE OF TERUMAH WITH SPICES OF CHULIN

SUMMARY: Abaye cites a Mishnah (Tevul Yom 2:3) in his attempt to prove that the principle of "Heter Mitztaref l'Isur" applies in all cases of Isur (according to Rebbi Eliezer; Tosfos 36b, DH Iy Hachi and DH Is Sefarim). The Mishnah teaches that when a person who is a Tevul Yom touches part of a Mikpeh (stiff porridge) of Terumah which is flavored with garlic and oil of Chulin, the entire dish becomes Tamei. When the Mikpeh is Chulin, and the garlic and oil are Terumah, only the place that the Tevul Yom touches becomes Tamei.

The Gemara asks why, in the case of the Seifa, does the Tevul Yom's touch make the place that he touches Tamei? *Nothing* should become Tamei!

Rebbi Yochanan explains that the place that he touches becomes Tamei "because a Zar (non-Kohen) receives Malkus for eating a k'Zayis" of the dish. Abaye assumes that Rebbi Yochanan means that a Zar is Chayav for eating a k'Zayis of Terumah and Chulin combined, because of "Heter Mitztaref l'Isur." Rav Dimi refutes this proof and says that Rebbi Yochanan means that a Zar is Chayav only for eating an entire k'Zayis of the Isur (the Terumah) along with the Chulin when there is a k'Zayis of the Isur in the Chulin when he eats it "b'Chdei Achilas Pras."

The Rishonim are bothered by a number of questions on this Sugya. First, if the Seifa says that only the place that the Tevul Yom touches becomes Tamei, then obviously the garlic and oil are not mix up unrecognizably in the Mikpeh, because if they are unrecognizable, then why should the rest of the Mikpeh be different than the part that he touched? If part of it becomes Tamei then the whole thing should become Tamei (like the Mishnah teaches in Tevul Yom 3:4 regarding Chulin that has Terumah mixed into it)! Rather, it is clear that the garlic and oil are still recognizable. On the other hand, the Gemara asks why the part that he touches becomes Tamei; even *that* part should remain Tahor. But if the garlic and oil are still recognizable, then why should they not become Tamei if a Tevul Yom touches them?

Second, how (according to Abaye) does the rule of "Heter Mitztaref l'Isur" explain why the garlic and oil become Tamei? "Heter Mitztaref l'Isur" affects the Mikpeh (the Chulin), making the Chulin become Asur when it is eaten with the Terumah. Yet we find that the Mikpeh does *not* become Tamei; only the garlic and oil in the place that he touched become Tamei (because if part of the Mikpeh would become Tamei then the entire Mikpeh would become Tamei). Why should the rule of "Heter Mitztaref l'Isur" make the garlic and oil more susceptible to becoming Tamei?

The same question can be asked on Rav Dimi's answer. Why should "k'Zayis b'Chdei Achilas Pras" make the garlic and oil more susceptible to becoming Tamei?

The Rishonim give two basic approaches to these questions.

(a) RASHI (in Pesachim, as quoted by Tosfos here) explains that the reason the Tevul Yom's touch should not even make the garlic and oil Tamei is because they should become Batel to the Mikpeh; just like the Mikpeh is Chulin and cannot become Tamei, so, too, the garlic and oil should not become Tamei.

RABEINU TAM (cited by Tosfos) asks how could the garlic and oil of Terumah become Batel to the Chulin if they are still recognizable? We know that Bitul only works when the object of the Isur is not distinct and recognizable! Rashi must be learning that the garlic and oil are no longer distinguishable from the rest of the Mikpeh. How, then, could the Mishnah write that only the place that the Tevul Yom touches becomes Tamei and not the rest of it? It is all one single dish!

The RASH in Tevul Yom (2:3) defends Rashi's opinion and proves that the garlic and oil must indeed be mixed into the Mikpeh, like Rashi explains. In response to Rabeinu Tam's question, the Rash quotes a Tosefta that asks the same question. The Tosefta answers that when the Terumah and the Chulin are of the same material (Min b'Mino), when a person touches one part of the mixture then the whole dish becomes Tamei. Here, though, the garlic and oil are not the same Min as the Mikpeh, and thus when one touches part of it, only that part becomes Tamei. (The Tum'ah of Dimu'a is only mid'Rabanan, enacted by the Rabanan because the mixture is called "Terumah" since it must be treated like Terumah due to the Terumah which it contains. When the Terumah and Chulin are two different Minim, the Rabanan did not make a Gezeirah making the entire dish Tamei.) The Rash answers the other questions of Rabeinu Tam as well (see Tosfos).

When Rebbi Yochanan says that the place that the Tevul Yom touches becomes Tamei because a Zar receives Malkus when he eats a k'Zayis of the mixture, he means to say that since it is still possible to receive Malkus for eating this mixture, it therefore has the title of Terumah and it is not fitting that it should remain entirely Tahor when part is touched by a Tevul Yom (Rashi in Pesachim 44a).

(b) RABEINU TAM explains that the garlic and oil are still recognizable and are not mixed into the rest of the Mikpeh, and that is why they become Tamei when touched while the rest of the Mikpeh does not become Tamei. When the Mishnah says in the Reisha -- where the Mikpeh is Terumah -- that when a Tevul Yom touches the garlic and oil of Chulin, the entire Mikpeh becomes Tamei, this is because -- Rabeinu Tam explains -- the garlic and oil act as a "Yad" that pass along the Tum'ah to the Terumah underneath (i.e. the Mikpeh).

This is difficult to understand. The Halachah of Yados (Chulin 118a) normally applies to a solid object (which is not Mekabel Tum'ah) used to move or to pick up another object (which is Mekabel Tum'ah) to which it is attached (such as a stem on a fruit, or a bone with meat on it). In our case, the garlic and oil certainly cannot be used to move the Mikpeh. Why, then, should they be considered a Yad?

Apparently, Rabeinu Tam does not mean that the garlic and oil are literally Yados. Rather, he means what Tosfos (in Pesachim) and the Rash (in Tevul Yom) say in the name of Rabeinu Tam: the garlic and oil are secondary to the Mikpeh and are therefore considered to be a part of the Mikpeh with regard to causing the Mikpeh to become Tamei (mid'Rabanan) if they are touched.

In the Seifa, where the Mikpeh is Chulin and the garlic and oil are Terumah, the reason the Gemara asks that the garlic and oil should not become Tamei at all is because they are not the size of a k'Beitzah, and food that is smaller than the size of a k'Beitzah cannot be Mekabel Tum'ah, mid'Oraisa. (The Tum'ah of the place that the Tevul Yom touches, according to Rabeinu Tam, becomes Tamei *mid'Oraisa*, either bcause the words of the Mishnah imply that (Tosfos here), or since the garlic and oil are Batel to the Mikpeh, the Rabanan did not make a Gezeirah to make them Tamei in this case, being that they are Batel to the Mikpeh and the Mikpeh is Chulin.)

The Gemara answers that the reason the place he touches becomes Tamei is because a Zar receives Malkus for eating a k'Zayis of the Mikpeh, through the principle of "Heter Mitztaref l'Isur." (Even though the garlic and oil are sitting on top of the Mikpeh and are not mixed in with it, the rule of "Heter Mitztaref l'Isur" still applies; see Insights to 37a.) How does this explain why the garlic and oil can become Tamei? Since a person can get *Malkus* for eating the *Mikpeh* as well and not just for eating the spices, therefore the Mikpeh joins with the spices to make a Shi'ur of a k'Beitzah so that the mixture will be *Mekabel Tum'ah* as well. Since earing the Heter is able to give him Malkus for the Isur of eating Terumah, it can also be Mitztaref with the Isur to make a Shi'ur of a k'Beitzah so that the dish becomes Pasul as Terumah when touched by someone Tamei.

The second answer of the Gemara is that even if Heter is not Mitztaref to the Isur, the Heter can cause a person to become Chayav for eating Terumah through the Halachah of "k'Zayis b'Chdei Achilas Pras." Even though Tosfos points out that if a person is Chayav only for eating a k'Zayis of Isur, then really the Heter is not participating in the Isur, and if so, why should the Heter participate in making a Shi'ur to be Mekabel Tum'ah? Tosfos (36b, DH Amar Lei) answers that the Heter indeed does take part in the Chiyuv for Malkus for eating Terumah, since a person can only be Chayav Malkus for eating garlic and oil of Terumah when he eats them together with the Mikpeh on which they are resting. If he eats garlic or oil by itself, it is not considered a normal act of eating ("k'Derech Achilah") and he would not receive Malkus for such an act. In this sense, the Mikpeh of Heter causes the Malkus for eating the k'Zayis of garlic and oil.

According to the way that Tosfos (in Pesachim) and the Rash (in Tevul Yom) explain Rabeinu Tam (see above), the answer of the Gemara is easier to understand. The Gemara's question was that since there is not a Shi'ur of a "k'Beitzah" of the garlic and oil, the Tum'ah is only mid'Rabanan, and since it is only mid'Rabanan the garlic and oil should be Batel (mid'Rabanan) to the Mikpeh and not be Mekabel Tum'ah! The Gemara's answer is that the garlic and oil do not become Batel since they are still "Chashuv" (significant) enough to cause a person to receive Malkus for eating them. This is very similar to the approach of Rashi in that the Gemara's question is one of Bitul (i.e., whether or not the garlic and oil are Batel).

Tosfos (36a, DH Mishum) seems to be following this latter approach, even though the preceding Tosfos takes the first approach to Rabeinu Tam. (The preceding Tosfos is apparently a Hagahah, and the second Tosfos is the original Tosfos who quotes Rashi throughout the Sugya. It seems that Tosfos is not learning Rashi like the Rash (that the spices are mixed in with the Mikpeh), but rather he is learning that Rashi also holds that the spices are on top of the Mikpeh (like Rabeinu Tam), and that the Gemara's question is that the spices should become Batel to the Mikpeh, mid'Rabanan, since their Tum'ah is only mid'Rabanan.)

36b

QUESTION: Abaye attempts to prove that "k'Zayis b'Chdei Achilas Pras" is not mid'Oraisa from a Beraisa that discusses a mixture of Terumah and Chulin items. Two containers of crushed spices ("Shtei Maduchos") -- one containing Terumah spices and the other containing Chulin spices -- fall into two pots, one containing Terumah and one containing Chulin. The Beraisa permits the two pots, because "I say that the Terumah fell into the Terumah, and the Chulin fell into the Chulin," through the mechanism of "she'Ani Omer." Similarly, when two baskets of fruits ("Shtei Kupos"), one containing Terumah fruits and the other containing Chulin fruits, fall into two similar containers of fruit, we permit the container of Chulin through "she'Ani Omer."

We know that "she'Ani Omer" works only to permit a doubtful Isur of an Isur d'Rabanan. Here, therefore, the case must be one where had the Terumah actually fallen into the Chulin, the mixture would be Asur only mid'Rabanan, and that is why we can permit the doubt through "she'Ani Omer." If, however, "k'Zayis b'Chdei Achilas Pras" is mid'Oraisa, then the mixture of the Terumah and Chulin would be Asur mid'Oraisa and "she'Ani Omer" would not apply to permit the doubt! The Gemara, in the case of the "Shtei Maduchos," answers that "k'Zayis b'Chdei Achilas Pras" is mid'Oraisa, but the Isur of Terumah of spices is only mid'Rabanan. In the second case of "Shtei Kupos," the Gemara answers that even if "k'Zayis b'Chdei Achilas Pras" is mid'Oraisa, the mixture would be Asur only mid'Rabanan since it is referring to Terumah nowadays, b'Zman ha'Zeh, which is Asur only mid'Rabanan.

Why does the Gemara not answer that the reason the mixture would be prohibited only mid'Rabanan is simply because there is Rov Chulin, a majority of Chulin in the mixture! The Torah teaches that whenever there is a Rov of Heter, the Isur in the mixture is Batel b'Rov! Even Terumah is Batel b'Rov, for the Isur of "Dimu'a" of Terumah (when there is Rov Heter) is only mid'Rabanan. Abaye himself uses this logic to explain why the mixture would be Asur only mid'Rabanan even though "Heter Mitztaref l'Isur" is mid'Oraisa. Heter is not "Mitztaref l'Isur" when there is a Rov of Heter. Accordingly, the same answer should suffice for Rav Dimi who holds that "k'Zayis b"Chdei Achilas Pras" is Asur mid'Oraisa! Even when there is a "k'Zayis b"Chdei Achilas Pras," if there is a Rov of Heter then we always rule that it is Batel mid'Oraisa, like the Gemara says in Zevachim (78a).

In the Gemara's first question, from the case of "Shtei Maduchos" that fell into two pots, we can understand why the Gemara does not use this answer: the spices presumably add a taste to the food in the pot. The Gemara in Zevachim says that Isur is not Batel b'Rov when the mixture is "Min b'she'Eino Mino," when the two foods have different tastes and the taste of the Isur can be discerned in the Heter (it is "Nosen Ta'am"). Therefore, the spices, mid'Oraisa, are not Batel in the Rov of Chulin, and the Isur of "k'Zayis b"Chdei Achilas Pras" can apply. However, in the case of the "Shtei Kupos" that fell into two containers, it is clear that the Gemara is assuming that the containers have the same type of food as the baskets that fell into them, because Abaye says that "Heter Mitztaref l'Isur" does not apply and the minority of Terumah in the mixture is Batel mid'Oraisa. Accordingly, that same logic should remove the Isur of "k'Zayis b"Chdei Achilas Pras" as well! (TOSFOS DH Ela l'Didach)

ANSWERS:

(a) TOSFOS answers that even though the rule of Bitul b'Rov removes the Isur d'Oraisa of the Terumah that fell into the Chulin, neverthless the Rabanan should be more Machmir than with a normal Isur d'Rabanan and they should not apply "she'Ani Omer" because of a Gezeirah for a case when there would not be Bitul b'Rov.

If this is true, though, then the question applies to Abaye just as well! Even if there is a Rov of Chulin, we should not apply "she'Ani Omer" because of a Gezeirah for a case where there is no Bitul b'Rov!

Tosfos answers that the Gezeirah is made only so that it should not be confused with a case where the Isur is still noticeable in the mixture, in which case it will not be Batel. If the Isur is noticeable in the mixture and the rule of "k'Zayis b'Chdei Achilas Pras" is mid'Oraisa, then the whole mixture will be Asur mid'Oraisa even though it is "Min b'Mino" (i.e., since it is not an actual mixture). But if "k'Zayis b'Chdei Achilas Pras" is not Asur mid'Oraisa, then even when the Isur is noticeable, there will be no Isur d'Oraisa for eating it.

If "k'Zayis b'Chdei Achilas Pras" is not mid'Oraisa, but "Heter Mitztaref l'Isur" is mid'Oraisa like Abaye holds, then why will there not be an Isur d'ORaisa if it is noticeable because of "Heter Mitztaref l'Isur?" One answer is that there will be an Isur d'Oraisa according to Rebbi Eliezer who holds "Heter Mitztaref l'Isur" while this Beraisa follows the view of the Rabanan. Even according to Abaye, the *Rabanan* do not hold "Heter Mitztaref l'Isur." However, according to the Girsa that Tosfos (DH Is Sefarim) cites, the Gemara is assuming that Rebbi Eliezer is indeed the Tana of the two cases of "Shtei Maduchos" and "Shtei Kupos" as well! Why then should the mixture not be Asur because of "Heter Mitztaref l'Isur" if the Isur is noticeable?

Tosfos explains that "Heter Mitztaref l'Isur" never applies when the Isur is "Min b'Mino" and is less than the Heter, even if the Isur is recognizable. Tosfos is pointing out a difference between "Heter Mitztaref l'Isur" and "k'Zayis b'Chdei Achilas Pras." With regard to "k'Zayis b'Chdei Achilas Pras" it makes no difference whether the Isur is the same Min as or a different Min than the Heter. If the person ate a k'Zayis of Isur, the k'Zayis of Isur is the problem and whether or not he could taste it the k'Zayis is still there. In contrast, "Heter Mitztaref l'Isur" can only take effect when the Isur can be tasted in the mixture. If the Isur does not add to or change the taste of the Heter, then the Heter cannot be affected by the Isur and cannot become like the Isur to be make the person who eats it Chayav. Therefore, as long as it is "Min b'Mino" (where the Isur cannot be tasted), the Heter will not be Mitztaref to the Isur.

(b) The RASH (Tevul Yom 2:3) suggests that the "Shtei Kupos" that fell into the two containers are indeed "Min b'she'Eino Mino." However, there is so little of the Isur (the Terumah) that its taste cannot be felt in the mixture. The Gemara thought that even though "Heter Mitztaref l'Isur" does not apply to this mixture, like we explained according to Tosfos in the previous answer -- either because the Beraisa is like the Rabanan or because "Heter Mitztaref l'Isur" only applies when the Isur can be tasted -- nevertheless the Isur of "k'Zayis b'Chdei Achilas Pras" applies to the mixture, since it is not "Min b'Mino."

(c) The RASH suggests a second answer. When the Gemara in Zevachim says that, mid'Oraisa, "Min b'Mino" is Batel b'Rov, it is discussing an Isur that becomes totally absorbed in the Heter and is no longer noticeable, "b'Ein." However, if the Isur is chopped up into very small pieces and is mixed up with the Heter so that they are inseparable, even if there is Rov Heter, the mixture will remain Asur according to the opinion that "k'Zayis b'Chdei Achilas Pras" is mid'Oraisa, since the Isur is still noticeable! Once again, "Heter Mitztaref l'Isur" does not apply to the mixture even if the mixture is noticeable, like we explained according to Tosfos in the first answer -- either because the Beraisa is like the Rabanan or because "Heter Mitztaref l'Isur" only aplies when the Isur can be tasted in the mixture.