Thursday, November 18, 2010

Torah from Our Beit Midrash

The Gemara rules that a davar she'yesh lo matirin, something that is forbidden now but will be permissible later - like an egg that was born on Yom Tov, and is nolad (a type of muktzah) and cannot be eaten on Yom Tov, but can be eaten the following day, is not batel. The most common case of davar she'yesh lo matirin is chametz, which is forbidden on Pesach, but permissible afterwards, and the ruling that such items are not batel is consistent with the ruling that even tiny amounts of chametz in mixtures are not batel. Nevertheless, because of certain differences in the parameters of the two cases, and because it will return to being forbidden next Pesach, there is some debate as to whether chametz is a genuine davar she'yesh lo matirin.

This category of davar she'yesh lo matirin is very different from that of devarim chashuvim, important items, such as a biryah, a whole, natural entity, such as a whole bug, which we discussed last week, and which is also not batel.  In the case of biryah, the bug is not batel because of its significance.  Hence, when it is not whole, it loses its significance and it is batel.  Thus, the category of biryah is only relevant for solid objects that get mixed up - yavesh bi'yavesh - and not for mixtures of liquids - lach bi'lach - since liquids are never considered significant as entities.  The case with davar she'yesh lo matirin is very different.  These things are not inherently important.  The reason they are not batel is generally assumed to be the reason stated by Rashi (Beitzah 3b, s.v. Afilu) - rather that eat it as a forbidden object and be required to use the mechanism of bitul, one should wait until it becomes fully permitted and eat it then.  This logic applies equally to liquids and solids, and thus such objects are not batel regardless of the type of object or the type of the mixture.

The logic of "just wait" is one that can be applied to many scenarios, and a lot of the parameters that limit the scope of davar she'yesh lo matirin are challenged because of the logic of "just wait".  This halakhic area is thus an ideal one to reflect on the tension between a halakha based on formalisms - specific, quantifiable rules which may have been initially formulated because of certain concerns, but in the end operate independent of such concerns - and one based on the underlying reason of the law.   In almost all areas of halakha, formalisms rule, although they are sometimes tweaked by their underlying reasons.  The reason for this is simple, a legal system could not succeed if it was not clear, concrete, and specific.  However, in this case, the underlying reason of "just wait" plays a major role and threatens and rewrites many of the rule's limits and formalisms.

Let consider some of these limits.  The first one - made explicit in the Yerushalmi - is that davar she'yesh lo matirin - does not apply when the mixture is a case of min bi'eino mino - of like and unlike, for example, if flour which is chadash, of the new grain that was grown before Pesach and is forbidden until the second day of Pesach, was placed in a soup of water, vegetables, and the like.  Now, it is very hard to understand why this should make a difference, since even here one can say, "just wait." 

To explain this, Ran (Nedarim 52a, s.v. vi'Nitarev) develops a fascinating new approach.  The operative principle, says Ran, is not "just wait," but rather that bitul requires difference to take effect.  If everything is the same it is not possible to say that one thing wipes out the identity of the other, since the other has no distinctive identity.  Thus, the only reason that bitul is possible in a case of min bi'mino, when a forbidden food is mixed up in the same type of food,  e.g., meat slaughtered properly and meat slaughtered improperly, is because there is a difference.  The difference is not that one is meat and the other is not meat, but that one is heter and the other is issur.  Now, in a case of davar she'yesh lo matirin, where the issur itself will become heter, and the two objects are the same type of physical object - min bi'mino - there is so little difference between the two that bitul is not possible.  This is why bitul does not occur in min bi'mino in this case, but it does occur in min bi'eino mino.

Now, this answer of the Ran is ingenious, but it is completely ignored li 'halakha.  If it were true, the rule that bitul does not occur in this case would be Biblical, and we rule that it is Rabbinic.  Moreover, since Ran gives more weight to the issur and heter difference, according to him one could never have bitul of a full heter bi'heter, totally permissible objects, such as a drop of milk in a vat of pareve vegetable soup, and this is clearly not the case.  And, finally, all the rulings of Shulkhan Arukh regarding davar she'yesh lo matirin assume Rashi's reason of "just wait," as we will see below.  But, if the Ran's reason is not correct, why is the scope of this law limited to min bi'mino

It is worth noting, first of all, that the law as originally stated by Rebbe Shimon (in Tosefta Trumot 5:15 and Gemara Nedarim 58a) does not mention the limit of min bi'mino.  The reason we rule that it is limited to min bi'mino is partly because it says so in the Yerushalmi (Nedarim 6:4), and, more significantly, because this law that min bi'mino is not batel is stated explicitly regarding tevel, grain that has not had trumot and maasrot taken from it (Mishnah, Avodah Zarah 73a).  Now, tevel is something that will be permitted later - a davar she'yesh lo matirin, and nevertheless it is batel when mixed with eino mino.  This, argue many Rishonim (see Tosafot Beitzah 39a, s.v. Mishum, and Tosafot Avoda Zara 73b, s.v. Tevel), shows that law that it is not batel is limited to case of min bi'mino.  It should be noted that other Rishonim (Ramban, Avoda Zara 73b; Ramban Milchamot, Pesachim 7b; Ra'ah Torat HaBayit 4:4, 38b) demonstrate that the ruling of davar she'yesh lo matirin was originally a da'at yachid, the minority opinion of Rebbe Shimon, and hence it was not accepted in other gemarot and mishnayot, such as the mishna regarding tevel.  It was only later, in the time of the Amoraim, that this rule was accepted and applied across the board.   Now, in the original statement of Rebbe Shimon in the Tosefta, min bi'mino is not mentioned, and one could possible come to the conclusion that this is not a limit on the scope of davar she'yesh lo matirin.  However, in light of the Yerushalmi, and in light of the way many Rishonim conflate the case of tevel with that of davar she'yesh lo matirin, it is almost unanimously ruled that this law is limited to cases of min bi'mino.

So, we are back to square one. The logic of "just wait" would dictate that it should apply in all cases, and no limits appear in Rebbe Shimon's original statement.However, li 'halakha it is limited to cases of min bi'mino.  Why is this?  Taz and Shakh quote the Rema in Torat Chatat who states that in such a case it's not like you are really intending to eat the issur (in the vegetable soup case -you want to eat the soup, not the flour), so it is not so justified to say, "just wait."  This is a pretty weak answer, as Taz himself notes.  A better explanation is a formalism.  Chazal may have been motivated to forbid such mixtures in all cases, but they did not have the mechanism to do so in a case of eino mino.  In such a case, once something is such a minute presence that it cannot be tasted, there is no good way to say that it should not be batel.  It can't be tasted, it no longer has its own identity (as, say, "flour"), so of course it is batel.  Such is not the case with min bi'mino.  There, already Rebbe Yehudah is of the position that it is never batel - since everything is the same thing, such as non-kosher wine mixing with kosher wine, the smaller product never loses its identity, since there is always wine present.  We don't rule this way - we rule that it is batel bi'rov - which is the opposite argument: since it is all the same, it loses its identity immediately - there is never "other" wine present - it's all wine.  That is our general rule.  But, when we want to make something forbidden even in small quantities, such as here - we avail ourselves of Rebbe Yehudah's logic and use the mechanism of min bi'mino lo batel to prevent bitul.

According to this explanation, at the end of the day there is no good reason to not say "just wait" by a case of min bi'eino mino, but the formalisms of halakha only allow us to say that no bitul occurs when it is min bi'mino.  In an eino mino case the reason is present, it is the formal mechanism which is absent.

However, this is not the end of the story.  Since the reason is present, and since it is a persuasive one, it works to reshape this parameter.  Basing himself on a Tosafot in Beitzah, Rema (92:1) rules that in a case of davar she'yesh lo matirin, whenever an ingredient is put into a mixture to help and improve the mixture, it is called for these purposes min bi'mino and it is not batel.  This effectively makes moot the limit of min bi'mino, since in every case that is not an accident, an ingredient is always added to improve the mixture.  Without rejecting the formalism outright, the underlying reason has managed to break through the somewhat arbitrary limits.  (It should be noted that the Magen Avraham reads Rema in a much more limited way, and largely maintains the mino / eino mino distinction).

This dynamic continues to play out throughout the Shulkhan Arukh's rulings on this matter (Yoreh Deah, 92).  First and foremost is the ruling (based on Beitzah 3a, but debated in Rishonim) that this rule applies not only in cases of mixtures but even in cases of a doubt.  So, if there is a doubt whether an egg was laid on Yom Tov or before Yom Tov, one cannot eat it, even though this is a doubt about a rabbinic law and we should be lenient.  Why are we not lenient?  Because rather than eat something that might be forbidden, it would be better to wait until tomorrow and eat it when it is definitely permitted.   This extension to a case of safek is a total jump from the formal ruling of eino batel - that in a mixture it is not nullified, but it is also a completely logical extension of the principle of "just wait."

Similarly, Shulkhan Arukh rules that this law should, in principle, apply to a case when a fork absorbed pork and was mixed in other forks, since one can just kasher the fork, why use it based on bitul?   (This again shows that Rashi's approach is the one adopted li 'halakha).  Taz challenges this - why is this considered mino?  The problem isn't the fork, per se, but the pork absorbed in the fork, and that is eino mino!  But, says Taz, since the argument is "just wait" - "we should not look at any logical reason to make distinctions in this case, but rather say, eat it in a permissible way, not a forbidden way."  That is, the underlying logic should dictate not to make formal distinctions.  Similarly, when Rema rules that this law does not apply to absorbed foods (in vessels, in other foods, etc.), Shakh and Taz both argue.  And, says Shakh, even if there is no textual evidence to disprove Rema in cases where it is just taste that is absorbed, and a formal reason could be given to distinguish between the cases (see Taz), nevertheless, we should not look for distinctions, since we should just say - better to wait and eat it when it is fully permissible.

This case is one where the tension between the reason and the formalisms is very much on the surface, and it is often the underlying reason that wins.  However, this is a rare occurrence, and for good reason, because this case also demonstrates what happens when undue weight is given to the reason - all limits and parameters are challenged.  No longer are we limited to mino, no longer are we even limited to a case of a mixture.   There is no longer a rule that davar she'yesh lo matirin lo batel, the rule - or should I say the principle - becomes "if you can just wait to make it better, you should."  Taken to its extreme, this would make eating any mixture of bitul only acceptable  b'dieved, which is  clearly not how we rule.  By dropping formalisms, halakha loses its clear, precise parameters, and the reasons expand to fill the available space.  Thus, the classic halakhic mode is one where the formalisms dominate, and where the underlying reason plays a more subtle role in shaping the formalisms at the edges.

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