Earning a Living - Part 2, Minyan Hamitzvos

In a previous post we discussed a point made by Rav Hershel Schachter regarding the halachos of earning a living. Here is a quote from that post:

However, the Gra on this Rema brings a Rashi in Baba Metziah that when the gemara darshens the pasuk of "v'hodata lahem es haderech yelchu bah" - zu bais chayehem, it is referring to earning a parnassah. Thus, it would seem from this Gra that we actually have a Biblical source that one should earn a parnassah.My only question on this is: if so, why isn't earning a living in minyan hamitzvos??

I recently discovered an answer to my question of why this mitzvah wouldn't be in minyan hamitzvos. This gemara in Baba Metziah actually discusses a number of different mitzvos learnt from this pasuk. For example, the mitzvah of bikur cholim is also learnt from this pasuk.

In Shoresh Sheini of the Rambam's Sefer HaMitzvos the Rambam discusses the mitzvah of bikur cholim and other mitzvos learnt from this pasuk. The Rambam sets down a principle that, in general, dinim learnt out from the 13 middos are not part of minyan hamitzvos (even if they may be d'orayssa). The only exception is if the gemara specifically indicates that the mitzvah should be counted in the minyan hamitzvos. The Rambam says that the B'Hag disagreed with this principle and therefore counted mitzvos like bikur cholim as separate mitzvos in minyan hamitzvos. The Rambam argues and says that in reality bikur cholim and the other mitzvos learnt from this derasha are subsumed under the mitzvah of v'ahavta l'reacah kamocha. The Rambam reiterates this in hilchos aveil 14:1 where he says that although bikur cholim, nichum aveilim, etc. are part of v'ahavta l'reacha kamocha, they are also independent mitzvos, but only m'drabbanan. So we see that the mitzvos learnt out of this pasuk are actually subject to a dispute between the Rambam and the Baal Hilchos Gedolos as to whether to count these as separate mitzvos, or to include them as part of other mitzvos.

This answers my question regarding earning a parnassah. If we say, like Rashi, that one of the derashos from this pasuk is to earn a living, whether its counted in minyan hamitzvos would seem to be a dispute between the Rambam and the B'hag.

The Rambam also cites the B'hag's opinion that fearing talmidei chachamim is its own mitzvah in minyan hamitzvos. Again the Rambam argues that the derashah of es Hashem Elokecha tira - l'rabos talmidei chachamim is only a derasha, and not to be included in minyan hamitzvos. In fact, in mitzvas aseh 209 the Rambam is consistent and says the mitzvah to fear talmidei chachamim is subsumed under the mitzvah to honor them, which is an explicit pasuk of mipnei seivah takum. This is in contrast to honoring and fearing one's parents which is counted as two separate mitzvos.

Stealing Karka and Avadim

The Raavad in Hilchos Gezailah 9:1 seems to hold that there is a difference between stealing land and stealing avadim (slaves). By stealing land if the land is later swept away by a river it is no longer considered "b'ein" (it is no longer in existence). The thief is then completely patur from returning the land because of a general rule that "karka eina nigzeles" (land cannot halachically be stolen). The idea is that even though when you steal something you are chayav in onsin, this is not the case when you steal land.

In general, avadim are compared to land. Yet, the Raavad says that by avadim, if after they are stolen they die, you do have to pay. The question is, isn't there also a rule of avadim not being nigzeles.

Rav Chaim answers that while it is true that there are no kinyanei gezailah by either avadim or karka they are still not identical. This is because by karka, not only is there no kinyanei gezailah, there is also no maaseh gezailah. It's not only that land cannot halachically be stolen, it cannot physically be stolen either. By avadim, on the other hand, although there is no kinyanei gezailah, there does exist a maaseh gezailah.

Rav Chaim explains that there are 2 chiyuvei tashlumin a gazlan can incur. The gemara says that if a shinui happens to the object that gazlan must pay. In order to be chayav in this payment there must be kinyanei gezailah. However, there is another chiyuv of tashlumin if the item stolen is no longer b'ein. This chiyuv can be generated even with a maaseh gezailah alone.

Birchas HaMitzvos

This post has been updated - Feb. 3, 2008

There is a general question as to why some mitzvos get a bracha and some don't. The Rashba in his Shaalos and Teshuvos (Sheilah 18) and the Gra (OC 8:1) in Shulchan Aruch deal with this question. Here are some of the rules they set down:

1. If a mitzvah is done without a maaseh there is no bracha. For example, canceling loans in the shemittah year takes no maaseh, so there is no bracha.

2. If a mitzvah is dependent on others, there is no bracha. For example, the mitzvah of tzedakah is dependent on the poor person accepting the money. The same is true for the mitzvah of lending money.

3. If it is possible to uproot the mitzvah through mechilah, there is no bracha. For example, a parent can be mochel on the mitzvah of kibbud, so the mitzvah of honoring carries no bracha. This condition is very similar to the above condition that the mitzvah is dependent on others. Other mitzvos that may fall under these categories are bikkur cholim, havaas shalom, and nichum aveilim - all of which carry no bracha because there accomplishment depends on the acceptance of the recipient.

4. A mitzvah that only takes place due to an aveirah, carries no bracha. For example, returning stolen property is a mitzvah. However, it only takes place after something has been stolen, which is an aveirah, so there is no bracha. The same would be true for returning interest. Also, divorce, although a mitzvah, has some element of aveirah mixed into it, so there is no bracha. Another example is misas beis din, which we don't make a bracha on because Hashem has rachmanus on His creations.

5. A mitzvah like matnos kehunah gets no bracha because you are really not giving anything to the kohen. We say the kohen is zocheh from shulchan gavoah. However, by pidyon haben there is a bracha because there the bracha is on the hafrasha, not the nesinah.

6. Mitzvos like yibum and chalitza do not get a bracha because they are not the ultimate purpose of the mitzvah. Rather, the ultimate purpose is the piryah v'ribya.

Tnai Batel U'Maaseh Kayam

There is a general rule that if someone does a maaseh with a tnai and doesn't formulate the tnai properly, we say that the tnai is batel and the maaseh is kayam. For example, if one performs a kiddushin under some condition, but doesn't formulate the condition with the proper mishpatei hatnaim (no kefel hatnai etc.), we say the tnai disappears and the kiddushin is chal. The question is, why should this be? If the husband did not want the kiddushin to take effect except under certain circumstances, shouldn't we say that there was no proper daas, and the kiddushin doesn't take effect.

The Shut HaRash (35:9 and 46) says that the entire concept of tnai is a chiddush. The idea that someone can make the challos of a maaseh conditional would never have existed if not for the fact that the torah allowed for it. Therefore, if the tnai is made improperly, the chiddush hasn't been executed, and m'maila the maaseh is chal.

However, the Rashba in Gittin 35b leaves this issue as a question.

I heard an explanation of this as follows (see as well Chazon Ish 50 and 53 in Gittin):

The Rosh holds that before the torah came along one could never have made a tnai in any maaseh. For example, can one imagine a tnai in a maaseh shechita. Likewise, a tnai in any maaseh makes no sense. A maaseh kiddushin should automatically take effect just like a maaseh shechitah.

However, the torah was mechadesh, that in certain areas of halacha this is not the case. One can make a tnai and prevent a maaseh kiddushin from being chal. Thus, if the tnai isn't made properly, the maaseh automatically results in its challos.

However, the Rashba disagrees. He holds that shechita and kiddushin are inherently different. By kiddushin, it isn't so much the maaseh kiddushin, but the daas for kiddushin that creates the challos. Thus, even though one can't create a tnai to stop a challos of shechitah, this isn't true for a maaseh kiddushin, or other maasim where the daas creates the challos. Thus, the chiddush of the torah merely was that if you make a tnai, this is how you should do it. The Rashba was, therefore, left with a difficulty. If the tnai is made improperly, why does that mean the maaseh is automatically chal?

A Mute as a Witness

Tosafos in Gittin 5a mentions that a mute (an ilaim) cannot write down b'fanei nichtav u'b'fanei nichtam. The Ran (3a in dapei harif) argues that there is no problem, because b'fanei nichtav is no better than eidus isha.

The difficulty in the whole discussion comes from a Teshuvas Harivash (382 & 413) that says that there is no psul of mipi ksavam at all when it comes to kiyum shtaros. Yet, even the Rivash does not allow a mute to provide the evidence of b'fanei nichtav!

One way to answer this question is to say like the Ktzos HaChoshen in Siman 46:19 that a mute is actually pasul l'eidus due to mipi ksavam as a psul haguf. In other words, it's not merely that eidus must be spoken, but eidus must be provided by one who can speak. However, the ktzos himself leaves off with a question that, in general, psulei haguf are not a problem by the eidus of b'fanei nichtav. So, why should a mute be pasul?

Perhaps we can distinguish between the nature of the psul haguf. If the issue is one of neemanus (whether we trust the eid), we waive our suspicions when it comes to b'fanei nichtav. However, a mute is pasul because he is not "fit for stating" his eidus. This psul is not based in neemanus, but in his communication of eidus. This type of psul we have no reason to waive by b'fanei nichtav.

Defining Reshus HaRabbim D' Orayssa

[Note: This piece continues the theme of the last post regarding eruvin. For more on this topic see the article by R' Hershel Schachter in The Journal of Halacha and Contemporary Society. Many of the ideas in this piece are lifted from that article.]

In order to be defined as a Reshus HaRabbim D’Orayssa there are conditions that must be met. The more conditions that there are, the harder it will be for us to declare an area as a reshus harabbim d’orayssa and the easier it will be for us to build an eruv in that area. The following is a list of conditions needed to declare an area a reshus harabbim d’orayssa. Some of the conditions are subject to dispute:

1. The area should be owned by the public (Eruvin 59a). For example, even if Rockefeller Center met all the criteria of being a reshus harabbim it still would not be one because it is not public owned.

2. The area should not have a ceiling (OC 345:7).

3. The streets should be more than 16 amos wide (OC 345:7).

4. The area should be accessible at all times (Eruvin 6b).

5. The area should have 600,000 people traversing it. This condition is a dispute between rishonim (see Eruvin 59a). It has generally been assumed for generations that we follow the lenient opinion of Rashi and Tosafos that we require the 600,000 in order to declare an area a Reshus HaRabbim. However, some acharonim (see Mishkanos Yaakov OC 120) question this and prefer to follow the Rambam. They contend that the majority of rishonim are actually on the Rambam's side. The acharonim also argue about how exactly to calculate the 600,000.

6. The street should be mefulash through the entire city. This means it runs straight through the city from end to end. R' Shlomo Kahana reportedly (quoted by R' Kasher in Noam) used this leniency to allow the eruv in Warsaw to remain valid. He argued that there was no street that ran straight through the city from end to end with no curves. R' Moshe Feinstein (OC 140) questions the legitimacy of this leniency.

Here are some factors to consider l'chumra when trying to make an eruv:

1. We hold in general that all highways (derachim me’ir l’ir - see Magen Avraham 345:5) are automatic reshuyos harabbim. This means that even if the highway doesn't fulfill all the conditions, the very fact that it is a highway makes it a reshus harabbim.

2. Rav Moshe (Volume 1 of Iggros Moshe, page 240) makes an argument that all central metropolis areas are automatic reshuyos harabbim. The argument is based on a Rabbeinu Efraim that (based on R' Moshe's understanding) says that Yerushalayim did not have an eruv even though it wasn't a reshus harabbim according to the conditions set out above (because it's doors were locked at night). Why not? Because it was the central Metropolis of the area, where everyone gathered. Based on this R' Moshe argues that Manhattan cannot have an eruv.

Here are some additonal factors l’kula:

Aruch HaShulchan (OC 345:19-24) – In order to be a reshus harabbim the street must be the main street of the city. Nowadays all streets cancel each other out and there is no main street. (See Divrei Malkiel Vol. 3 page 267 where R' Tannenbaum opposes using this leniency.)

Chazon Ish (Hilchos Eruvin Siman 43, see especially Os 7. See also Orchos Chaim Vol. 1 page 139 who quotes earlier poskim who agree with the Chazon Ish.) – Nowadays our buildings and houses actually enclose the streets enough to render the entire city into a reshus hayachid. The Chazon Ish demonstates this with diagrams of how our cities are generally constructed. He also relies on some ideas that others question (see Or HaMizrach Nissan 5741).

Tzuras HaPesach

The building of most eruvin in major cities nowadays relies on the concept of tzuras hapesach (see Eruvin 11b). A tzuras hapesach is basically a doorway frame (two standing up poles and a pole across the top). The first issue regarding tzuras hapesach is what exactly does a tzuras hapesach have the ability to do? The Mishna Berurah (OC 362:10) brings the Pri Megadim who holds that a tzuras hapesach only works on a d'rabbanan level. Meaning, if an area is a reshus harabbim on a d'orayssa level, a tzuras hapesach cannot enclose the area and make it into a reshus hayachid. Only in an area like a karmelis can a tzuras hapesach work to allow carrying because the tzuras hapesach acts as a heker. This would limit the use of tzuras hapesach to areas that are not reshuyos harabbim d'orayssa.

The Chazon Ish (OC 70:13) disputes the Pri Megadim and holds that tzuras hapesach works to enclose an area even on a d'orayssa level. He bases this on fact that the gemara (Eruvin 110) says that one can use a tzuras hapesach to separate a field and thus avoid problems of kilayim. This is a d'orayssa halacha. Thus, the Chazon Ish proves that tzuras hapesach works on a d'orayssa level.

Others (see Minchas Yisrael Eruvin 110) dispute the Chazon Ish and say that tzuras hapesach by kilayim only works to be mafsik - to separate, but not to makif - to enclose an area. For example see the Chiddushim of Rav Chaim on the Rambam Shabbos 16:16 where Rav Chaim explains that a tzuras hapesach has a "din mechitza", but is not a real mechitza. He explains that if all you need is a mechitzos to surround an area or mechitzos to separate one area from another, so tzuras hapesach works. However, if you need a certain shiur of mechitzos (like 3 walls for reshus hayachid or a tefach wall for sukkah) so tzuras hapesach will not be effective. The psak in general seems to follow the Chazon Ish that tzuras hapesach could work to enclose even a reshus harabim d'orayssa, if not for a different problem which we will now explain.

The problem is that there is another rule of "asi rabim um'vatli mechitza" (see Eruvin 22a). This rule says that if the rabbim pass through a mechitza, they can be mevatel the entire shem mechitza. This could seemingly mess up our entire use of tzuras hapesach for eruvin. However, for this we rely on a Maharam M'rotenberg (see Mordechai Eruvin Perek HaDar Siman 510) who paskens that we don't say asu rabbim u'mevatli mechitza by areas that are not reshus harabbim d'orayssa. It is for this reason that we first must define an area as a karmelis, before deciding that we can establish an eruv in that area.

[For more on this topic see an article by R' Hershel Schachter in The Journal of Halacha and Contemporary Society. Much of the information in this piece was taken from that article. Also, note that the term "Eruv" in this article refers to the building of the tzuras hapesach. This is how the term is used in Yiddish, even though in the gemara it refers to the matzos that are later set aside.]