Zeh Keli V'Anveihu third post

Yesterday we answered the first question of Tosafos on Rashi. Rashi said that lulav hayavesh is pasul even b'dieved because of zeh keli v'anveihu. The question was isn't zeh keli v'anveihu only a din l'chatchila? We answered that there are two dinim in zeh keli v'anvehu. One is a din in the cheftza shel mitzvah that if it's not v'anvehu it is pasul even b'dieved. The second din is in the gavra, that one should try to beautify mitzvos. That din applies to binding a lulav and is not m'akev. The second question of Tosafos is that isn't it an explicit gemara that lulav hayavesh is pasul because of a hekesh to esrog where it says hadar. I never really got a great answer to this question. One possibility is that we know yavesh is a psul cheftza from esrog but the actual source of the psul by lulav is from zeh keli v'anvehu. If that is the case, so the hekesh from esrog is just a gilui milsa on the nature of the psul of yavesh. (I believe I saw something like this in Reshimos.) A second possibility is that, in fact, hadar is used for different things on 35a, and that's what motivated Rashi. Finally, we can also point out that by Rashi saying the psul of lulav hayavesh is from zeh keli v'anvehu he gets out of tosafos' question on 29b as to why lulav hayavesh is pasul all 7 days when other psulim are only for the first day. Rashi can simply say that yavesh is different b/c it is learnt from v'anvehu.

Zeh Keli V'Anveihu/hiddur mitzvah con...

We left off yesterday with two questions on Rashi. The first was - how could Rashi say that hiddur mitzvah makes a dry lulav pasul even b'dieved, when in general hiddur mitzvah is only a l'chatchila as we see by binding a lulav.
First off, we should note that the gemara in gittin 54b says that if one has a sefer torah where all of the azkaros (hashem's name) are darker than the rest of the sefer torah (because the sofer forgot to write them lishmah so he rewrote the name over them), so the halacha is that the sefer torah is totally pasul because it is not "v'anveihu". Here we actually have a proof for Rashi that hiddur mitzvah can be m'akev. Thus, we really only need to distinguish the binding of a lulav from the din of a dried out lulav and from a sefer torah that is m'numar (where the azkaros are ""spotted").
The answer to this question would seem to be (I believe I heard this over from a number of people in the name of R' Soloveichick) that there are in fact two dinim in the din of Zeh Keli V'anveihu. In order to explain these two dinim let us turn to the gemara in Baba Kama 9b where the gemara says that "by hiddur mitzvah one must add on up to a third". Rashi explains that what this means is that if one has two esrogim and one is within a third bigger than the other, so he must take the bigger one. Now if one thinks about this din of Zeh Keli V'anveihu it would seem obvious that it is not m'akev. Certainly the smaller esrog is kosher. There is simply a din l'chatchila based on zeh keli v'anveihu to take the bigger esrog. It's a "relative" din. If one esrog is "relatively" nicer (within a third) you should take that one.
We can say that this first din of zeh keli v'anveihu is in the "gavra", the person. A person should run after mitzvos to try to do them in the best way possible. This is the first din of zeh keli v'anveihu, and it is not m'akev.
The second din of Zeh Keili V'anveihu is in the "cheftza", the item itself. If the sefer torah is m'numar, or the lulav is dried up, so the cheftza shel mitzvah is not v'anveihu and it is pasul b'dieved. The spotting of the sefer torah and the dry lulav is a part of the cheftza shel mitzvah. Thus, if it is not v'anveihu it is pasul b'dieved. However, the binding of the lulav is external to the lulav and is only a din l'chatchila. We had a second question on Rashi, but we will leave that for another time. Tafasta merubah lo tafasta.

Zeh Keli V'Anveihu

The Mishna on daf 29b of Sukkah states that a lulav that is dried out is pasul. Rashi over there explains that the reason is because you need to fulfill "hidur mitzvah", to beautify the mitzvah, as it says "Zeh Keli V'Anveihu". Tosafos there asks two questions on Rashi. #1 The sugya on 11b speaks about the mitzvah of binding the lulav and the Gemara says that it is only a din l'chatchila and is not m'akev b'dieved. Now, we know that the source for binding the lulav is the general din of hidur mitzvah, which is learnt from the pasuk of zeh keli v'anveihu. If so it would seem from this gemara that zeh keli v'anveihu is only a din l'chatchila. This is difficult for Rashi because the Mishna says that a lulav that is dried out is totally pasul, even b'dieved. So how can Rashi say the source for this din is hiddur mitzvah if that is only a din l'chatchila? The second question that tosafos asks is that the sugya on 31a in sukkah says explicitly that the reason a dried out lulav is pasul is because lulav is compared to esrog and by esrog it says the word "hadar". So the real source is the pasuk of "hadar" and not hiddur mitzvah, which is learnt from the pasuk of zeh keli v'anvehu. These are the two questions that we will return to next time as we elaborate upon the din of zeh keli v'anvehu.

When a "Lav" is repeated in the Torah

I have to warn you on this one that in order to understand it you really have to look at the gemara in Pesachim on 24a. If I am mistaken in anything, please feel free to correct me.

In Shoresh 9 of Sefer HaMitzvos and also in Lav 179 the Rambam says that if a Lav is repeated in the Torah you do not get two sets of Malkos and it isn't counted twice in the minyan hamitzvos. The Rambam explains the sugya in Pesachim on 24a that one gets 4 sets of malkos if he eats a potisa not because of kefel halavin, but rather because a potisa has 4 different sheimos, it counts as 4 different "types" of bugs that the Torah says are prohibited (it's a land bug, water bug etc.). Other Rishonim argue with the Rambam and say that a potisa is water bug and you get 4 different types of malkos because it is a lav that is repeated 4 different times. (For more discussion of this see the Rambam in Maachalos Asuros 2:23 and the Raavad there.
The Ramban (in shoresh 9) asks on the Rambam from the gemara in Pesachim 24a that compares eating a potisa to eating Kodshim B'Tumah where it would seem to be a situation of kefel halavin, a repetition of lavin.
The Gri"z (maachalos asuros 2:23) answers that by eating kodshim b'tumah there are also two shemos, #1 eating korbanos b'tumah and #2 eating kodshim b'tumah. The Gri''z brings several proofs to the existence of these two separate dinim.
The problem that I had with this is that the Rambam himself in Shoresh 9 uses this gemara about eating kodshim b'tumaah to prove his points regarding kefel halaavin. The proof is that the gemara with regards to eating kodshim b'tumaah calls it laavei yesarai, "extra" laavin. So the Rambam proves from this language that they are indeed extra and don't count in minyan hamitzvos. Thus, even though the Gri"z gains an understanding in how the gemara could compare eating a potisa to eating kodshim b'tumaah, still the response of Rav Ashi in that sugya of "laavei yeseiri" is no longer a proof to the Rambam, which the Rambam himself brings.

Eidei Mesirah/Chasima Karti

When it comes to the giving of a get (divorce document) there are two general opinions quoted in the gemara in the beginning of Gittin. R' Meir holds eidei chasima karti (the witnesses who sign the get create the get) whereas R' Elazar holds eidei mesirah karti (the witnesses who watch the giving of the get from the man to the woman create the get).
The Rishonim argue about what exactly R' Elazar means. Acc. to Tosafos in Gittin 4a, R' Elazar holds only eidei mesirah can create a get, and a get with signatures is no good. The Rif disputes Tosafos and holds that even eidei mesirah are kores (create the get). There is a machlokes within the Rif as to what exactly he means. Acc. to the Ramban, the Rif means to say that in order to make a get effective one can use either eidi chasima or eidei mesirah; in other words there are two ways to be kores a get. The Ran, however, offers a different explanation. He holds that even acc. to the Rif there is only one way, technically speaking, to create a get. That is through eidei mesira. However, if a get has eidei chasima on it and that get is in the hands of the woman, so those signatures have the halachic status of eidei mesirah. This is because there is now an annan sahadi (halachic status of eidus) that the get was given from the man to the woman, for how else is the woman holding a signed get in her hands? So there are essentially three shitos within R' Elazar- 1. only eidei mesirah karti 2. either eidei mesirah or eidei chasima karti and 3. really only eidei mesirah karti, just that eidei chasima can act as eidei mesirah. (See dafei harif daf 47 in detail with the nosei keilim there for more.)
Now, if you haven't lost me yet, here is where it gets interesting. Within R' Meir's opinion Tosafos makes an interesting comment in the name of Rabbeinu Tam. He says that acc. to R' Meir you certainly would need eidei mesirah also (in addition to eidei chasima) because otherwise the gerushin, the divorce itself, would not be effective, because of the rule of ein davar shebervah pachos mishnayim (all ceremonies involved with ervah issues must be done in front of two people).
So, in effect, Rabbeinu Tam is saying, that acc. to R' Meir one needs both eidei chasima and eidei mesirah. The question is, does the Rif agree with Rabbeinu Tam's opinion, within R' Meir, that you need both eidei mesirah and eidei chasima? The answer would seem to be no, because if R' Meir says you need both types of eidim, and R' Elazar is saying even eidei mesirah karti (as well as eidei chasima) so they wouldn't really be arguing! Why would the Rif go out of his way to say the acc. to R' Elazar even eidei mesirah are karti, and not mention anything in R' Meir when a very similar point could be made that both are really needed? It would seem then that the Rif disputes Tosafos and holds acc. to R' Meir that eidei chasima alone are good and you don't need eidei mesirah. How then would one fulfill the din of ein davar shebervah pachos mishnayim acc. to the Rif, if you have no eidei mesirah?
This question leads many achronim to suggest a proof for the Ran, that the eidei chasima become eidei mesirah, for if not - how do we fulfill this din of ein davar shebervah pachos mishnayim??
However, I heard (or maybe saw) in the name of R' Soloveitchick that in fact the opposite is true. It's the Ramban's opinion that makes perfect sense and the Ran which is difficult. The Ramban would, in fact, agree that acc. to R' Meir who holds the eidei chasima create the get, so the get is a good get, it has a shem shtar, and memailah it creates an annan sahadi that the get was given to the woman and halachically we have eidei mesirah. While this makes sense in R' Meir, this would not make sense in R' Elazar as the Ran is attempting to state. Acc. to the Ran within R' Elazar, eidei chasima do not really create a get, yet, at the same time, they can create an annan sahadi and create eidei mesirah which then creates the get! The whole thing is circular, if it doesn't have a shem shtar... how does the annan sahadi get created! Only in R' Meir it makes sense because the eidei chasima create the shem shtar and then the shem shtar can act as eidus to the mesirah and create the gerushin. This point the Ramban could in fact agree to, but he would still dispute the Ran that such logic could apply to R' Elazar's shitah.
I thought to answer for the Ran as follows. R' Soloveitchick had a fundamental principle (see Sefer Eretz Hatzvi by R' Schechter for more on this) that the machlokes between R' Meir and R' Elazar is only by shtarei kinyan - documents used to create some type of transaction or "challos". However, by shtarei raayah (documents made only as a proof of a transaction) forsure one would use eidei chasima, because otherwise how is the shtar a proof?? (Rashi on daf 3b in gittin implies not like this, but R' Soloveitchick explains it away by saying that even a shtar halvaah might be a shtar kinyan on the shibud nechasim.)
If this is the case, we can suggest in the Ran that although the eidei chasima are not effective to make the shtar a shtar kinyan, meaning a get that could effect a divorce, the get still has the ability to be a shtar raayah on the divorce. If so, there is a shem shtar and when the get is given we have an annan sahadi. That annan sahadi then circles back to create eidei mesirah and make that very same document effective as a get to divorce the woman! This gets us out of the problem because now the get has a shem shtar before the annan sahadi is created.
One final note: there is a hagahos mordechai at the end of kiddushin (570) that brings a Teshuvas R' Avigdor that if a shtar is meant for kinyan (like a get or shtar kiddushin) it cannot work as only a raayah. Meaning that R' Avigdor holds there can never be a get that is only a raayah... it must have also functioned to create the gerushin if it intends to be a proof. My above explanation in the Ran would have the Ran opposing this because the get is acting soley as a shtar raayah in the beginning. This isn't so bad because the Shiurei Rav Shmuel already suggests that Tosafos disagrees with this R' Avigdor because Tosafos says that within R' Elazar the eidei mesirah create the get entirely and nevertheless one can have eidei chasima only as a raayah.

Four Avos Nezikin

The first mishna in Baba Kama discusses the 4 avos of nezikin - shor, bor, maaveh, and hever. Then, at the end of the mishna the mishna presents the "tzad hashaveh" between the 4 avos. They are all accustomed to doing damage, and you have to watch them (darkan lehazik and shmirasan ulecha). The question is that if there is already a tzad hashaveh so why do we need 4 separate avos? Why doesn't the mishna just say that one is chayav for anything which is darkan lehazik and shmirasan ulecha? What difference does it make if it is shor, bor, maaveh, or hever?
The gemara in Baba Kama on daf 5a answers this question by pointing out that we need the avos "for their [individual] halachos" (lehilchoseihen). So bor is needed because bor is patur on keilim, and shen and regel are patur in reshus harabim etc.
We can now probe further and ask the following question. Are the 4 avos needed as separate mechayvim or are they needed as separate potrim? Let us take bor as an example. Does bor have a separate mechayav of "a chalos shem bor" that is patur on keilim? Or is the mechayav of bor the same general mechayav of all nizkei mamon? This would mean that the tzad hashaveh of darkan lehazik and shmirason ulecha is the mechayav of bor and that once something has a "shem bor" it gets a ptur on keilim. The shem bor would then only relate to the individual halachos and not to the general mechayav.
What is the nafkah minah, the practical difference, in all of this? A simple nafka minah would be a "hybrid" nezek. What if we had, for example, a type of damage that was neither shor or bor but learnt out from the both of them with a tzad hashaveh? If the "mechayavim" of shor and bor are different, so we can only learn out that which is most kal, and this hybrid would be patur on keilim. If, however, the general mechayav is all the same, so only bona fide bor gets the ptur of keilim, and our "hybrid" case would not be patur on keilim. See the Gri"z on the Rambam in Hilchos Nizkei Mamonos where he discusses this issue in more detail.
Finally, in terms of shitas Rashi it is interesting to consider the two leshonos in rashi on daf 3a in Baba Kama whether to learn out bor of 9 tefachim from a diyuk in the pasuk or from the pasuk explicitly. This may be relevant to our issue of whether an av is a separate mechayav or a poter. Also relavant may be the issue on 3a/3b of placing a stone, satchel, or burden in reshus harabim and what dinim this has. This may in fact be a case of a "hybrid" nezek, see Rashi and Tosafos there.