מצוות שבתון 08

(1) Resting from labor on the seventh day fulfills a positive commandment, as [Exodus 23:12] states, "And you shall rest on the seventh day." Anyone who performs a labor on this day negates the observance of a positive commandment and also transgresses a negative commandment, for [ibid. 20:10] states, "Do not perform any labor [on it]."

That he knows about Techum - The Ri Asks: Why don't we say that he knows the assei of Shabbos, as it is written "On the day of Shabbos you shall rest...," and it's also written, "And you shall watch the Shabbos."

In accordance with the principle that Rabbi Avin said that Rabbi Elai said. As Rabbi Avin said that Rabbi Elai said: Any place where it is stated: Observe, lest, or do not, this means nothing other than a negative mitzva, as these are negative terms.

MISHNA: In continuation of the previous mishna, this mishna adds that one may not light with burnt oil on a Festival, as the Gemara will explain below....

GEMARA: With regard to the statement of the mishna that one may not light with burnt oil on a Festival, the Gemara asks: What is the reason for this?....

Rav Ashi said: It is derived from a different source. In the verses that speak of the Yomim Tovim, as opposed to the term Shabbos, the term shabbason (Vayikra 23:24) appears.

The Gemara challenges this explanation from a different perspective: Ultimately, a Yom Tov is a mitzva that includes both the positive mitzva of rest and also the prohibition against performing prohibited labor, and there is a principle that a positive mitzva by itself does not override a prohibition and a positive mitzva together.

The construction of a parapet on a roof, returning a lost item, and the release of the mother bird from the nest - That an assei that has with it a lav, the lav is strengthened, and an assei is not docheh it.

No, it's necessary for a case where one transgressed and took the mother with the fledglings. In such a case, he has already transgressed the prohibition... - Granted that it's not docheh, however, if he violates that lav he doesn't get malkus, because the reason that it's not docheh is because of the asseh, but the lav is like he didn't do it, since the asseh is docheh that.

The construction of a parapet on a roof, returning a lost item, and the release of the mother bird from the nest - R' Yosef from Eretz Yisrael asks on this explanation: If so, by lighting shemen sereifa on Yom Tov because Yom Tov is an assei and a lo saasei, and burning kodshim is only an assei, a woman who is not chayav in the assei of Yom Tov, because it's a mitzvas assei shehazman grama, is it really okay for a woman to light with shemen sreifah on Yom Tov? And if you say, ein hachi nami, she is allowed to light with shemen sreifah on Yom Tov, why doesn't the Tana say that? Rather what is there for you to say? That an assei that has with it a lav, the lav is strengthened, and an assei is not docheh it.

And what is a positive mitzva that is not time bound? Examples include the affixing of a mezuza, the construction of a parapet on a roof, returning a lost item, and the release of the mother bird from the nest. That women are chayav in them, even if they are not chayav for their assei, they are chayav in their lav, because any lav in the Torah, even if it's zman grama, women are chayav in it. And if you say that it's teaching that by all other mitzvos assei shehazman grama, even though they have a lav, which women are chayav in, they are patur from the assei: But you can't say this, as we say in Meseches Shabbos and Beitza, that Shabbos and Yom Tov are asseis and lavin, and an assei is not docheh an assei and a lo saasei, and both men and women are equal by it, as is proven by shemen sreifah and kissuy hadam.

Since the verses state: “Remember,” and: “Observe,” indicating that anyone who is obligated to observe, i.e., is prohibited from performing labor on Shabbat, is obligated to remember, by reciting kiddush.

And this that it taught the construction of a parapet on a roof, returning a lost item, and the release of the mother bird from the nest. And to me it seems that it's mainly a mitzvas assei, that doesn't have a lav, rather you are just mekayeim an assei that Hashem commanded you. (The lo saassei strengthens the assei).

And Rabbi Yosei, son of Rabbi Chanina, said in the name of Rabbi Eliezer ben Yaakov: What is the meaning of that which is written: “You shall not eat with the blood” (Vayikra 19:26)? You may not eat before you pray for your blood. One may not eat before he prays.

“'You shall not eat with the blood' teaches you may not eat before you pray for your blood’’––this is just an asmachtah, as the explanation of the passuk is that someone can't eat meat while the blood is still in it.

(4) And they also said (Berachos 10b), "From where [do we know] that a person should not taste anything until he prays? We learn to say, 'You shall not eat upon the blood' - you may not eat before you pray for your blood."

(1) That is that we are commanded to serve Him. And this command is repeated several times: His saying, "And you shall serve the Lord, your God" (Exodus 23:25); and His saying, "and you shall serve Him" (Deuteronomy 13:5). And although this command is from the inclusive commands - as we explained in Principle Four (Sefer HaMitzvot, Shorashim 4) - it nevertheless has specificity, since it is the command to pray. The language of the Sifrei is, "'And to serve Him' (Deuteronomy 11:13) - that is prayer." And they also said, "'And to serve Him' - that is [Torah] study." And in the Mishnah of Rabbi Eliezer, the son of Rabbi Yose HaGelili, they said, "From where [do we know that] the essence of prayer is a commandment? From here - 'You shall fear the Lord, your God, and you shall serve Him' (Deuteronomy 6:13)." And they said, "Serve Him through His Torah; serve Him in His Temple." This means, direct [yourself] towards it, to pray [towards] there, as Shlomo, peace be upon him, explained. (See Parashat Mishpatim: Mishneh Torah, Prayer and the Priestly Blessing 1.)

The Gemara asks: What is different about these cases, one who vows in an idol’s name and one who affirms his statement by an oath in its name, that the transgressors are not flogged? It is because they are each an example of a prohibition that does not involve an action. These actions too, namely, hugging or kissing an idol and the like, are not punishable by lashes; one who performs them violates a general prohibition, and one is not flogged for violating a general prohibition, i.e., one that contains several prohibitions. As this principle is taught in a baraisa: From where is it derived that one who eats from an animal before its soul departs is in transgression of a prohibition? The verse states: “You shall not eat with the blood” (Vayikra 19:26), meaning, you shall not eat from the animal while its soul, which is referred to in the Torah as blood, is still within it. The baraisa adds: Another matter is derived from the verse “You shall not eat with the blood”: You shall not eat the meat of an offering while its blood is still in the bowl, as it has not yet been sprinkled on the altar. The meat of an offering may be eaten by the priests only after its blood is sprinkled. The baraisa continues: Rabbi Dosa says: From where is it derived that although in general, after a deceased person is buried, the mourners are provided by others with a meal, others do not provide the mourners with a meal after the burial of those executed by the court? The verse states: “You shall not eat with the blood,” which is interpreted to mean: You shall not eat a mourners’ meal after the burial of one who was executed. Rabbi Akiva says: From where is it derived with regard to a Sanhedrin that killed a soul, i.e., that sentenced a person to death, that the judges may not taste anything that entire day that they sentenced him? The verse states: “You shall not eat with the blood.” Rabbi Yochanan says: From where is the prohibition against the behavior of a stubborn and rebellious son derived? While the Torah states the punishment given to a stubborn and rebellious son, the prohibition against his actions, namely, stealing money from his parents in order to eat a gluttonous meal of meat and wine in the company of lowly men, is not explicit. The verse states: “You shall not eat with the blood,” which is interpreted to mean that one may not eat in a manner that is punishable by death. This concludes the baraisa.

It was stated that there is a dispute between amora’im concerning the following issue: With regard to one who is safeguarding a lost item that he has not yet returned, what level of responsibility does he bear? Rabba said: He is considered to be like an unpaid bailee, whereas Rav Yosef said: He is considered to be like a paid bailee. Their respective opinions are explained: Rabba said that he is considered to be like an unpaid bailee because what benefit comes to him through safeguarding it? Therefore, he is just like any unpaid bailee. Rav Yosef said that he is considered to be like a paid bailee on account of the benefit that he is not required to give bread to a poor person while looking after the lost item, since one who is engaged in one mitzva is exempt from performing another. Consequently, since there is some benefit involved in looking after the lost item, he is considered to be like a paid bailee.

MISHNA: The halachos of bailees stated in the previous mishna apply to standard cases. The halacha is that in any case involving monetary matters the parties may agree to special terms. Therefore, an unpaid bailee may stipulate with the owner that he will be exempt from taking an oath if the item is lost, and similarly, a borrower may stipulate that he will be exempt from having to pay, and a paid bailee or a renter can stipulate that he will be exempt from taking an oath and from having to pay, as one can relinquish his monetary rights....

GEMARA: The Gemara asks a question with regard to the mishna’s statement that bailees can issue conditions and change the liabilities imposed on them by Torah law: Why are they able to do so? This is a case of one who stipulates counter to that which is written in the Torah, as the Torah determines who takes an oath and who must pay, and with regard to anyone who stipulates counter to that which is written in the Torah, his condition is void...Because here it is different, as at the outset he did not obligate himself in the halachos of a bailee as stated in the Torah. Before he entered into the agreement, he clearly stated that he is unwilling to accept upon himself the liabilities of a paid or an unpaid bailee by Torah law.

This is as it is taught in the Tosefta (Kiddushin 3:7): In the case of one who says to a woman: You are hereby betrothed to me on the condition that you have no ability to claim from me food, clothing, or conjugal rights, she is betrothed and his stipulation is void; this is the statement of Rabbi Meir. Rabbi Yehuda says: With regard to monetary matters, such as food and clothing, his stipulation stands; therefore, if she verbally waives part of the marriage contract, and thereby makes a stipulation about a monetary matter, it should be effective.

(1) It is a positive commandment to give charity to the poor among the Jewish people, according to what is appropriate for the poor person if this is within the financial capacity of the donor, as [Deuteronomy 15:5] states: "You shall certainly open your hand to him." [Leviticus 25:35] states: "You shall support him, a stranger and a resident and they shall live with you," and [ibid.:36] states: "And your brother shall live with you."

(2) Anyone who sees a poor person asking and turns his eyes away from him and does not give him charity transgresses a negative commandment, as [Deuteronomy 15:7] states: "Do not harden your heart or close your hand against your brother, the poor person."

If one said: On my oath I will give so-and-so some item, or: On my oath I will not give it to him. What is the case of an oath in which he says: I will give? If we say that he takes an oath that he will give charity to a poor person, that is not an oath that takes effect, since he is under oath from Mount Sinai to give charity, as it is stated with regard to a poor person: “You shall give him” (Devarim 15:10). Rather, the case is where he said he would give a gift to a rich person. The oath takes effect, as there is no mitzva to do so.

That it is established according to everyone. Even though an issur is not chal on an assei, because we ask later on, "If we say that he takes an oath that he will give charity to a poor person, that is not an oath that takes effect, since he is under oath from Mount Sinai to give charity, as it is stated with regard to a poor person: “You shall give him."

Any positive mitzva whose reward - That by tzedaka, also, there are lavin of lo sikpotz and of lo s'amatz.

As it is taught in a baraisa: One might have thought that honoring one’s father and mother overrides Shabbos; therefore, the verse states: “You shall fear every man his mother and his father and you shall keep My Shabbosos, I am the Lord your God” (Leviticus 19:3). The baraisa explains the derivation from the verse: All of you, both parent and child, are obligated in My honor, and therefore honoring one’s parents does not override the honor of God, Who commanded the Jewish people to observe Shabbos. The Gemara analyzes this baraisa: What, is it not referring to a situation where his father said to him: Slaughter for me, cook for me, or any other labor prohibited on Shabbos on pain of kares? And the reason that the Merciful One specifically writes: “Keep My Shabbosos,” is to warn against violating the prohibition against performing labor on Shabbos, a transgression which incurs kares, for the purpose of honoring one’s parents. It may therefore be inferred that if that was not so, the positive mitzva would override Shabbos. It is therefore possible to deduce from here that in general, positive mitzvot override even prohibitions that entail kares. The Gemara rejects this proof: No, the reference is not to a situation where a father demanded that his child perform prohibited labor on Shabbos that entails kares. Rather, he instructed him to transgress the prohibition against driving a laden animal. Although it is prohibited to cause animals to work on Shabbos, this does not entail the penalty of kares, as it has the status of a regular prohibition. And this shows that if one’s father told him to desecrate Shabbos by driving a donkey, even so, the positive mitzva to honor one’s parents does not override the prohibition against driving a laden animal.

That we have been prevented.... And this din is discussed in the Rashba...that he asks: But Shabbos is an assei and a lo saassei? And he answers in the name of his Rebbe: By mechamer there is no assei, that mistamah the mitzvah of "tishbos" is only an assei by av melachos. And see Tosfos there. And it's the same din by this lav of techum, since it's a lav of malkus, and it's not one of the avos melachos.

Rabbi Akiva says: There is no need for this proof, as it says: “Yet on the first day you shall remove leaven from your houses,” and it is written: “And on the first day there shall be to you a sacred convocation, and on the seventh day a sacred convocation; you shall perform no manner of work on them” (Shemos 12:17). And we found that kindling a fire is a primary category of prohibited labor. Since the fire in which the leaven is burned is not for the preparation of food, kindling it is not performed for the purpose of Yom Tov. Therefore, it is prohibited to burn the leaven on Yom Tov itself. Consequently, one must burn the leaven on erev Yom Tov...Rava said:

(Page 2)

Learn from the statement of Rabbi Akiva three halachos. Learn from it that the removal of leavened bread can be performed only by means of burning. Rabbi Akiva bases his opinion on the fact that it is prohibited to kindle a fire on Yom Tov.
And second, learn from it that the prohibition against kindling a fire on Shabbos was specifically singled out in the Torah to divide the various primary categories of labor and to establish liability for performance of each of them. The dissenting opinion is that kindling is singled out to teach that there is no capital punishment for performing that primary category of labor.
And third, learn from it that we do not say: Since it is permitted to kindle a fire for the purpose of preparing food, it is also permitted to light a fire not for the purpose of preparing food, e.g., to burn leaven.

(1) IT SHALL BE UNTO YOU ‘SHABBASON’ (A SOLEMN REST). It appears to me that this interpretation intends to state that we are commanded by law of the Torah to have rest on a Yom Tov day even from activities which are not in the category of m’lachah (“work”). Thus we are not to be engaged the whole day in wearisome tasks: measuring out crops of the field, weighing fruits and gifts, filling the barrels with wine and clearing away the vessels, and moving stones from house to house and from place to place [although none of these activities is “work” in the strict sense of the term]. Similarly, if it be a city encompassed by a wall and its gates are locked at night, [and it is therefore according to law of the Torah treated as one domain, and the prohibition against taking out aught from one domain to another is inapplicable there], they would be loading heaps on asses, as also wine, grapes, and figs and all manner of burdens they would bring on a festival; and the market place would be full for all business transactions, the shops standing open and the shopkeepers giving credit, the money-changers sitting before their tables with the golden coins before them, and the workers would rise early to go to their work and hire themselves out for such works [as described above] just as on weekdays, and so on! And since all these matters do not entail m’lachah, they would be permissible on a Yom Tov day and even on Shabbos itself! Therefore the Torah said that [Yom Tov should be a day of] shabbason (solemn rest), meaning that it should be a day of rest and ease, not a day of labor [and weariness]. This is a good and beautiful interpretation.

One does not recite a verse dealing with the remembrance of an individual...for example: “Remember me, O Lord.’’ That any time we say that something is a derabanan, that doesn't mean to say that there is no derabanan at all from the Torah, because if that were so, we'd find that Shabbos is basically the same as the week, mideoraisa, as the markets and produce and wine storage houses would be open, and we would be moving things from house to house through a karmelis, and we'd be measuring and weighing and counting. And it doesn't make sense that the Torah was prohibiting taking out something the size of a dried fig, and permitting a great burden, because if so, that's not a day of rest! Rather, this is the main point of these words, that, because of the mitzvas assei, it's a "shevus of the Torah" to rest from melachos, and to rest from everything. Resting, genenraly, is to not make Shabbos like the week, but with every specific thing when he does it. And you have to be careful the other way, that Shabbos should not be like the week, is a resting miderabanan. We find that the main point of resting is from the Torah, and therefore the Chachamim set up there words in many places to push off a mitzvah of the Torah. This pearl in our hands if from our Rebbe the Ramban, told over from our Rebbe.

⁽⁴⁾ 2. If there is business is happening in his shop at all, he is a mechalel Shabbos v'Yom Tov, since, behold, he is like all people who are mechalel Shabbos by prohibitions that are written in the passuk, as the Ramban, (Parshas Emor, in the passuk of "Shabbason zichron truah," ibid.) who should be remembered for blessing, writes: It appears to me that this interpretation intends to state that we are commanded by law of the Torah to have rest on a Yom Tov day even from activities which are not in the category of m’lachah (“work”). Thus we are not to be engaged the whole day in wearisome tasks: measuring out crops of the field, weighing fruits and gifts, filling the barrels with wine and clearing away the vessels, and moving stones from house to house and from place to place [although none of these activities is “work” in the strict sense of the term]. Similarly, if it be a city encompassed by a wall and its gates are locked at night, [and it is therefore according to law of the Torah treated as one domain, and the prohibition against taking out aught from one domain to another is inapplicable there], they would be loading heaps on asses, as also wine, grapes, and figs and all manner of burdens they would bring on a festival; and the market place would be full for all business transactions, the shops standing open and the shopkeepers giving credit, the money-changers sitting before their tables with the golden coins before them, and the workers would rise early to go to their work and hire themselves out for such works [as described above] just as on weekdays, and so on! And since all these matters do not entail m’lachah, they would be permissible on a Yom Tov day and even on Shabbos itself! Therefore the Torah said that [Yom Tov should be a day of] shabbason (solemn rest), meaning that it should be a day of rest and ease, not a day of labor [and weariness]. And so is the lashon of the Rambam (Hilchos Shabbos, Chapter 21, ibid.).

(1) [Regarding the Sabbath,] the Torah [Exodus 23:12] states: "[On the seventh day,] you shall cease activity." [This implies] ceasing [even the performance of certain] activities that are not [included in the categories of the forbidden] labors. [The Torah left the definition of the scope of this commandment to] the Sages, [who] forbade many activities as sh'vut.

And We Have The Custom.... It's a mitzvas assei shehazman grama, and, if so, according to what we said above in the name of the Ramban, that someone who is working and toiling on Shabbos, there is no negative violation, just the assei of "Shabbason," if so, according to this, women are not mazhir on working and toiling, since it's a mitzvas assei shehazman grama. And it's poosible to say like we established: Women are chayav in both zachor and shamor--"anyone who is chayav in shemira is," etc.--if so, all the more so here, that it's a complete hekesh, since by this assei it includes that nashim have azrhara, for example by those that have a lav, if so, even them that don't have a lav, since they are included in one word, women are also chayav.

^{(This, really, is above in this commentary of the Minchas Chinuch (297:2), but RAL said it after this)}

And Lichorah this needs some examination: Why didn't the author write this law above, by commandment 85, by the mitzvas assei of shevisas Shabbos, that women are also obligated in the assei? And it's possible to say: There there isn't any practical difference, since without this it wouldn't be an assei that has kares and misas beis din. But by Yom Tov there's a practical difference with regards to the lo saasei being pushed off by the assei, but it won't push off an assei v'lo saasei. We see that also with regards to women the assei of Yom Tov is not pushed off by an assei (e.g. kissuy hadam, sreifas kadshim, etc.), because they are also commanded in the assei, and it's an assei v'lo saaseh. But by Shabbos, without this lo saaseh that has kares, it won't be pushed off by the assei.