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Wednesday, October 17, 2018

May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel ben Harav Yoel David Balk, a”h.

This week we learned Avoda Zara 21. These are some highlights.

Avoda Zara 21: Ha’arama: Is it permissible to try to avoid mitzvah obligations?

Our Gemara seems to teach that we may not perform ha’arama—deliberately make halachic arrangements to cause a halachic obligation not to take effect. Our Gemara is discussing the problems in selling land in Israel to gentiles. Biblically, we may not sell land to a gentile in the Land of Israel for such a sale violates Lo Techaneim. The rabbis added a prohibition against leasing a home to a gentile in Israel. If I rent out a home, I might next sell the home to him. Rabbi Meir taught in the mishnah, if you cannot rent a home in Israel to a gentile, you certainly may not rent a field in Israel to a gentile. The Gemara explains that sale of a field to a gentile is worse than the sale of a home. Sale of a home is merely a violation of Lo Techaneim. Sale of a field entails two problems. It is a violation of Lo Techaneim, and in addition it causes the field not to produce ma’aserot. Through selling the field, I cause for a lack of obligation to gift percentages of the produce to the levites. We may not make arrangements to annul mitzvah obligations. The Gemara’s lesson, that it is wrong to sell a field for such a sale causes a negation of tithing obligations, seems to indicate that we may not try to avoid our mitzvah obligations.

Toldot Adam (209b) relates a story about Rav Zalman, the brother of Rav Chaim of Volozhin. He once was traveling and came to a Jewish-owned inn right before Shabbos. The mezuzah on the front door was not in the top third of the door frame. Rav Zalman held that such a mezuzah was not kosher. He refused to enter the inn. It was about to be Shabbos. There was not enough time to move the mezuzah to a fitting spot. The innkeeper had to bring three people and declare his inn ownerless in their presence. Once the building was ownerless, it was not obligated in a mezuzah. Only then did Rav Zalman enter the building and spend Shabbos there. Was this behavior a violation of the standard that we are not to make arrangements that will nullify our halachic obligations?

Our Gemara teaches that there is a difference between mezuzah and maaser. The Gemara asked, why did Rabbi Meir distinguish between a field and a home? Selling a field entails two problems—one, Lo Techaneim, and two, causing the negation of tithing obligations. Selling a home to a gentile also, seemingly, entails two sins—one, Lo Techaneim, two, causing a home not to be obligated in mezuzah. The Gemara answers that mezuzah is different than maaser. Maaser is an obligation on the field. Mezuzah is an obligation on the resident. The resident who lives in a home needs to put up a mezuzah. I am not annulling an obligation by selling the home to a gentile. Once the gentile owns the home, there is no obligation on anyone to have a mezuzah up. With tithes it is different. The Land of Israel is supposed to produce maasrot. Once I sell an agricultural field to a gentile, the produce from the field will not be obligated in maasrot. It is a sin and an affront to the holiness of the land to make an arrangement in which the land will no longer produce maasrot. Our Gemara states explicitly that since mezuzah is an obligation on the resident, it is permissible to make arrangements that will result in no mezuzah obligation. Therefore, Rav Zalman was correct in allowing for the arrangement of making the home ownerless to enable his entry into the home.

When you see the place where the holy Temple stood, you are obligated to tear your shirt (Shulchan Aruch Orach Chaim, 561:2). Some do not want to tear their shirts. When they get close to the Kotel or places from which they can see the Temple Mount, they transfer ownership over their shirts to their friends with a kinyan chalipin. The friends then give them permission to wear the shirts, but the friends stipulate that wearers do not have permission to tear the shirts. Is this a permissible course of action? Tearing a shirt is like mezuzah. It is not an obligation on a piece of land. It is an obligation upon a person. Perhaps, I may make arrangements to annul a mitzvah obligation that would otherwise be upon me?

Mo’adim Uzmanim (Chelek 7 Siman 257) argues that this arrangement is not effective. Such a transfer is not real. All know that the shirt was given to the friend solely to try to avoid having to tear it. It was not truly given to the friend. The friend did not truly own it. If the friend would have tried to make the shirt hekdesh, the boy wearing the shirt would protest that he had never given it away to the degree that the recipient would be able to make it hekdesh. Nedarim (48b) teaches that any gift that the recipient does not own enough to be able to consecrate is not truly a gift. The shirt still belongs to the original owner. He is obligated to tear it and show how he is mourning the loss of the Mikdash.

The issue of arranging to be exempt from a mitzvah obligation also comes up in regard to the obligation to immerse utensils acquired from a gentile in a mikvah. Shulchan Aruch (Orach Chaim 323:7) records a dispute if you are allowed to immerse a keli in the mikvah on shabbos. What do you do, then, if you realize on Shabbos that you have a new utensil and you have yet to immerse it in the mikvah? Shulchan Aruch writes that you should gift the utensil to a gentile and then borrow it back from the gentile. Gentiles do not need to tovel their utensils. Since the utensil belongs to the gentile, it is exempt from the obligation of immersion. Shu”t Chelkat Yaakov (Yoreh Dei’ah 43:2) finds this law difficult. Our Gemara teaches that you may not sell a field in Israel to a gentile, because you are causing the obligation of tithing to disappear. Why then are you allowed to transfer your utensil to a gentile and cause the obligation of immersing utensils to disappear? He answers that immersing utensils is like mezuzah and not like maaser. Our Gemara teaches that you are allowed to sell a home and cause the obligation of mezuzah to disappear, for mezuzah is an obligation on the resident. Immersing utensils is also an obligation on the person who owns the utensils. It is not an obligation on the object. You are allowed to give the utensil to the gentile and cause the obligation to disappear. (Mesivta)

By Rabbi Zev Reichman

 Rabbi Zev Reichman teaches Daf Yomi in his shul, East Hill Synagogue.