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Zevachim, 91

1) THE ORDER OF PRECEDENCE OF A MITZVAH D'ORAISA AND A MITZVAH D'RABANAN

QUESTION: The previous Mishnayos have discussed two major principles concerning the order of precedence between various types of things. We learned that a Mitzvah (or Korban) that is performed more frequently (Tadir) should be performed before a Mitzvah that is less frequent (Eino Tadir). We also learned that the more Mekudash item should be done before the less Mekudash item. The Gemara now inquires about the order of precedence in a case in which the two rules oppose each other -- such as when the more Tadir item is the less Mekudash one. RASHI (90b, DH Tadir u'Mekudash) gives as an example of such a case a situation in which one needs to bring the blood of the Korban Tamid (which is Tadir) and the blood of a Chatas (which is Mekudash) which are both ready to be brought. Which one takes precedence?

The Gemara attempts to answer this question from various sources. One source is a Beraisa in Berachos (51b) that states that Beis Hillel maintains that, during Kidush on Shabbos, the Berachah of wine should precede the Berachah recited for the Kedushah of the day. Beis Hillel's reasoning is that the Berachah of wine is more Tadir. This implies that although the Berachah of Shabbos is Mekudash, the more frequent Berachah, the one said for wine, takes precedence. This shows that Tadir takes precedence over Mekudash. The Gemara replies that we cannot answer our question from that case, because the Berachah said for the wine also becomes Mekudash due to the Kedushah of Shabbos, and thus it is both Tadir and Mekudash.

The P'NEI YEHOSHUA (Berachos 51b) points out that the Gemara here seems to be ignoring a very important factor. The Berachah recited for Shabbos is a Mitzvah d'Oraisa, while the Berachah for the wine is only mid'Rabanan. Why does the Gemara not say that the Berachah of Shabbos should be recited first, because we always perform Mitzvos d'Oraisa before Mitzvos d'Rabanan?

ANSWERS:

(a) The P'NEI YEHOSHUA and the TZELACH answer that the Gemara here is actually discussing two Mitzvos d'Rabanan. The Berachah said for Shabbos is not mid'Oraisa, because the person reciting Kidush already fulfilled the Torah obligation of Kidush when he recited the Shemoneh Esreh of Shabbos on Friday night. Thus, his Berachah of Shabbos that he recites over the wine is only mid'Rabanan.

The MITZPEH EISAN, however, asserts that one certainly does not fulfill his Torah obligation of Kidush through reciting Shemoneh Esreh. The Gemara in Pesachim (117b) says that we learn through a Gezeirah Shavah that one must mention Yetzi'as Mitzrayim during Kidush. Since this is learned through a Gezeirah Shavah, it seems to be a Torah condition in the fulfillment of the Mitzvah of Kidush. During the Shemoneh Esreh on Friday night, we do not mention that Shabbos is "Zecher li'Yetzi'as Mitzrayim," and thus we do not fulfill this condition. Moreover, the Tzelach himself in Pesachim (100a) says that the Halachah that one fulfills the obligation to recite Kidush only when one eats in the place where he makes Kidush (Kidush b'Makom Se'udah) is prerequisite *mid'Oraisa* for fulfilling Kidush. Since we do not eat in the Beis ha'Kneses after the Tefilos on Friday night, how can one fulfill the Mitzvah of Kidush through the recitation of the Shabbos Shemoneh Esreh? (See BI'UR HALACHAH 271:1, DH Miyad, for further discussion of this topic.)

(b) The SHA'AGAS ARYEH (#22) explains that the question of the P'nei Yehoshua is no question at all. Rather, he says that this Gemara is proof that there is no such principle that one must perform a Mitzvah d'Oraisa before performing a Mitzvah d'Rabanan.

He addresses the intrinsic logical difficulty with his own assertion. Our Gemara says that something that is more Mekudash takes precedence over something that is less Mekudash. A Mitzvah d'Oraisa certainly is more Mekudash than a Mitzvah d'Rabanan. Why, then, should it not come first?

The Sha'agas Aryeh explains that the Halachah of precedence of Tadir or Mekudash applies only when there are two *Mitzvos* to perform at the same moment. It does not apply to something which is not a Mitzvah, but merely a voluntary act (a "Devar ha'Reshus"). One may perform such an act prior to performing a Mitzvah, even if that act is not Tadir and not Mekudash. A Mitzvah d'Rabanan, when compared with a Mitzvah d'Oraisa, is considered to be a "Devar ha'Reshus," a voluntary act, and, therefore, one should be permitted to perform the Mitzvah d'Rabanan before the Mitzvah d'Oraisa. However, this is not always the case. We know that there is a principle of "Kol d'Tikun Rabanan k'Ein d'Oraisa Tikun" -- the Rabanan made their enactments similar to the Halachah of the Torah. Therefore, even though a Mitzvah d'Rabanan is like a Devar ha'Reshus when compared with a Mitzvah d'Oraisa, the Rabanan enacted that we should apply the Torah rule of "Tadir" even when faced with a Mitzvah d'Oraisa and a Mitzvah d'Rabanan. Therefore, we treat both types of Mitzvos as equal, and thus the Tadir one comes first. This is demonstrated by the fact that the Berachah for wine, which is mid'Rabanan, is recited before the Berachah of Shabbos, which is mid'Oraisa, because of the rule of "Tadir." (Y. Montrose)

91b

QUESTION: The Gemara quotes two Beraisos which seem to contradict each other. One Beraisa states that when a person donates an offering of oil (in accordance with the opinion of Rebbi Tarfon that an oil-offering may be donated), the oil is poured onto the fire on the Mizbe'ach. A second Beraisa states that when a person donates an offering of wine, the wine cannot be poured onto the fire of the Mizbe'ach because (according the Girsa of the TZON KODASHIM) of the prohibition of "Lo Sichbeh" -- "[the fire on the Mizbe'ach] shall not be extinguished" (Vayikra 6:5), which prohibits extinguishing the fire and coals of the Mizbe'ach. One Beraisa seems to maintain that one may pour a liquid onto the Mizbe'ach, even though it will cause the fire to become extinguished (in whole or in part), while the other Beraisa seems to maintain that this is permitted.

The Gemara answers that the two Beraisos are indeed arguing, and they are expressing the opinions of two different Tana'im. The first Beraisa is expressing the view of Rebbi Shimon, who maintains that a "Davar she'Eino Miskaven" is permitted. A "Davar she'Eino Miskaven" is an act that is done for a certain permitted purpose, but which *may* result in a transgression being inadvertently performed. Since the purpose of pouring the wine on the Mizbe'ach is in order to offer the wine as a Korban, and one does not have intention to extinguish the fire, one does not transgress the prohibition of "Lo Sichbeh." The second Beraisa is expressing the view of Rebbi Yehudah, who maintains that a "Davar she'Eino Miskaven" is forbidden. Even though the purpose of pouring the wine is to offer a Korban, if, even inadvertently, the act results in a forbidden consequence (extinguishing the fire), then it is forbidden.

RASHI (DH Ha Rebbi Shimon) has difficulty with this Gemara. We know that even Rebbi Shimon agrees that when an act is a "Pesik Reishei" -- an act that will certainly result in a forbidden Melachah being unintentionally performed on Shabbos -- it is forbidden to perform that act (see Shabbos 103a). Pouring wine on the fire of the Mizbe'ach will certainly extinguish part of the fire. How, then, can the Gemara say that this is permitted according to Rebbi Shimon?

ANSWERS:

(a) RASHI answers that this act is not called a "Pesik Reishei." Since it is possible for the Kohen to pour the liquid on the Mizbe'ach in small drops in such a way that it will not affect the fire at all, it is not a "Pesik Reshei," and thus he may pour the liquid on the fire even in large drops, as it is considered a "Davar she'Eino Miskaven" which is not a "Pesik Reshei." The MIRKEVES HA'MISHNEH (Hilchos Shabbos 1:1) says that Rashi indeed understands that even when one does a permitted act which will definitely result in a forbidden act being performed, if his intention is not for the forbidden act *and* he is able to avoid the forbidden consequence by doing this same act in a different manner, then the act is permitted even in a way that will have a forbidden consequence. For example (according to the Mirkeves ha'Mishneh's understanding of Rashi), in a case in which a person wants to open a door on Shabbos, and that door has a light which goes on when the door is opened at a normal speed but not when it is opened at a slow speed, Rashi would rule that one may open the door at the normal speed, since he could have opened it at the slow speed (assuming that the person's purpose is to enter the room and not to turn on the light). A similar concept is proposed by the SHILTEI GIBORIM in Shabbos (page 38 of the pages of the Rif, #3)), which the Mirkeves ha'Mishneh says is consistent with the approach of Rashi. (See EVEN HA'AZEL, Hilchos Ma'aseh ha'Korbanos, for a different understanding of Rashi.)

(b) The BARTENURA explains that the reason why the act of pouring wine on the Mizbe'ach is not a "Pesik Reishei" is because the fire on the Mizbe'ach is strong enough that it might withstand the pouring of this amount of wine without being extinguished at all.

(c) TOSFOS in Kesubos (6a, DH Hai) says that this Gemara is the main proof of the ARUCH to his opinion that an act of "Pesik Reishei" is prohibited only when the person doing the act benefits from the act that is done. If the person does not benefit from the Melachah that inevitably occurs (that is, it is a "Pesik Reishei d'Lo Nicha Lei"), then it is only a "Davar she'Eino Miskaven" and is not prohibited. The reason why it is permitted to pour the liquid on the fire of the Mizbe'ach is that the Kohen does not desire the consequence of extinguishing the fire.

(d) TOSFOS argues with the Aruch and maintains that a "Pesik Reishei d'Lo Nicha Lei" is forbidden. How, then, does he understand our Gemara? Tosfos suggests that when the act of the "Pesik Reshei" is done for the sake of a Mitzvah, then it is permitted, even though it results in a forbidden act being done.

(e) TOSFOS in Shabbos (103a, DH Lo) suggests other explanations for our Gemara. It is possible that our Gemara is discussing a case in which the Kohen pours the liquid on the Mizbe'ach in small drops, which would normally not extinguish the fire. Similarly, Tosfos suggests that the Kohen poured the liquid on top of the limbs of Korbanos which were on the Mizbe'ach, and there was no fire on top of them at that moment. This act would normally not result in extinguishing the fire, making this a "Davar she'Eino Miskaven" if the fire happened to be put out. (Y. Montrose)