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Pesachim 59

1) THE MITZVAS ASEH OF THE KORBAN PESACH OVERRIDES THE MITZVAS ASEH OF "HASHLAMAH"

QUESTION: The Gemara says that the Mitzvah to bring the Korban Pesach -- which is punishable with Kares if not done -- overrides the Mitzvas Aseh of "Hashlamah" (making sure that the afternoon Korban Tamid is the last Korban that is offered upon the Mizbe'ach). Since bringing the Korban Pesach overrides the Mitzvas Aseh of "Hashlamah," one who is Mechusar Kipurim -- who needs to bring a Korban Kaparah in order to become Tahor so that he may eat from the Korban Pesach -- may bring his Korban after the Korban Tamid.

This Gemara is difficult to understand. Why should one's personal Korban override the Mitzvah of "Hashlamah?" Even though it will enable him to partake of the Korban Pesach, that Mitzvah will not be done until later. We know that in order for one Mitzvah to be Docheh another one, they must be done at the same time! Since he will not be doing the Mitzvah of eating the Korban Pesach until after nightfall, why should he be allowed to forego the Mitzvah of "Hashlamah" and bring his private Korban for Kaparah after the Korban Tamid?

ANSWERS:

(a) TOSFOS (DH Asi) answers in the name of the RIVA that the Gemara is talking about a case when the person who is Mechusar Kipurim already brought the Korban Pesach before he brought his Korban for Kaparah. Since he is not fit to eat the Korban Pesach in his present state, it is not considered as though he brought it. At the very moment that he slaughters his own Korban he becomes fit to eat the Korban Pesach and he fulfills the Mitzvah of bringing the Korban Pesach. That is, at the moment he becomes fit to eat the Pesach, he is Yotzei the Mitzvah of offering up the Korban. As the Gemara says later (90a), he is exempt from brining a Korban on Pesach Sheni as long as he was fit to eat the Korban Pesach on Pesach Rishon. Even though he is not actually fulfilling the Mitzvah of *eating* the Pesach (which is the Mitzvah which is punishable with Kares), nevertheless the Mitzvah of *bringing* the Korban Pesach is considered to be a weightier Mitzvah that the Mitzvas Aseh of "Hashlamah," since it is associated with the Mitzvah of eating the Pesach which does have Kares.

(b) The RI cited by Tosfos answers that in order for one Mitzvas Aseh to override a weaker Mitzvas Aseh, the two acts do not have to be done at the same time. Only when one wants to be Docheh a Lo Ta'aseh -- which is a stronger Aveirah -- with an Aseh do they then have to be done at the same time.

RAV YISRAEL ZEV GUSTMAN, zt'l, used to explain that the underpinnings of this question may be based on a broader question. Why is an Aseh able to be Docheh a Lo Ta'aseh? After all, a Lo Ta'aseh -- an Isur -- is more severe than an Aseh (Yevamos 8a). There are two approaches to this question in the Rishonim.

RABEINU NISIM GAON in Shabbos (133a, see Insights there) explains that the Aseh is not really "*Docheh*" the Lo Ta'aseh. The Aseh does not push away or override the Lo Ta'aseh. Rather, in situations where the Lo Ta'aseh comes in conflict with an Aseh, the Lo Ta'aseh was never commanded in the first place! That is, the Torah did not give the commandment to observe the Lo Ta'aseh when it is in conflict with an Aseh. The Lo Ta'aseh is in force contingent upon there being no Aseh opposing it. If there is an Aseh opposing it, then the prohibition of the Lo Ta'aseh was never said in the first place.

If so, the condition that the Aseh and Lo Ta'aseh have to be done at the same time in order for the Aseh to be "Docheh" the Lo Ta'aseh is actually describing the condition under which the Lo Ta'aseh was commanded. That is, when did the Torah not command the Lo Ta'aseh when it clashes with an Aseh -- only when the Lo Ta'aseh is in opposition to an Aseh at the very same time that the Aseh is being performed. But when they are not being done at the same time, the Lo Ta'aseh *does* take effect and it remains in force because it is stronger than the Aseh which cannot override it.

This is the opinion of the RI here. The Ri explains , and that is why he explains that a strong aseh being docheh a lo taaseh, logically one is stronger than the other, and therefore you don't need this clause that when they come into opposition the torah never gave one. It is mdechiyah and not mdin hutrah. Therefore even not idnei it can be docheh.

The RIVA, on the other hand, learns that every case of "Aseh Docheh Lo Ta'aseh" works by pushing aside the Lo Ta'aseh ("Dechiyah"), and not the way Rabeinu Nisim Gaon explains ("Hutrah"). He learns that an Aseh is stronger than a Lo Ta'aseh (see Ramban to Shemos 20:8), as the MAHARIK (Shoresh 139) writes. The rule that the Aseh must be done at the same time as the Lo Ta'aseh is merely in order to ensure that the person not do the Aveirah first and then forget about doing the Mitzvas Aseh. This will apply equally when one Aseh is Docheh a weaker Aseh.

The Riva seems to be consistent with his opinion elsewhere (Tosfos, Chulin 141a), where he writes that when an Aseh is opposed by another Aseh and a Lo Ta'aseh, one is not permitted to perform the Aseh by transgressing the other Aseh and the Lo Ta'aseh. However, if one, b'Di'eved, transgressed and performed the Aseh, he does not get Malkus for transgressing the Lo Ta'aseh, because the fulfillment of the Aseh is Docheh the Malkus (see Insights, Pesachim 47b). This makes sense according to the Riva's opinion that the Aseh is stronger than the Lo Ta'aseh and therefore it is Docheh it, as the Maharik (ibid.) points out. According to Rabeinu Nisim Gaon, on the other hand, the Torah *did* command the Lo Ta'aseh in such a situation, so it will not be pushed aside at all and one will receive Malkus.

59b