[Avodah] Mitzvah Haba'a BeAveira

[Micha Berger]

On Tue, May 20, 2008 at 10:02:03PM -0400, Kayza Zajac wrote:
: Well, for starters, I think there is the issue of Lav vs Assei.

This thread was launched by a discussion of asei dokheh lav vs mitzvah
habaah ba'aveira. I suggested the position that
ADL: both are one act
MHB: the "mitzvah" would be impossible had an earlier aveirah not been
     committed.

I made this mistake once before. Lulav hagazul includes the case where
the gezeilah and the netilah are the same maaseh. I was corrected by
RCSherer, and didn't retain it. Perhaps because no one at the time
suggested an alternative chiluq. I now have two, one of which makes me
almost right.

See the discussion under the topics:
    Gezel Akum, Seridei Esh and the Suppression of Historical Evidence
    Mitzva HaBaa b'Aveira (was Re: Gezel Akum, Seridei Esh and the
	Suppression of Historical Evidence)
    Mitzva HaBaa b'Aveira
starting at v4n349, and ending around n360. That discussion is a fun
read about cheirem deR' Gershom, geneivah from a dead person, and
whether reading an article built on the Seridei Eish's personal mail
would be a MHB.

We discussed last Nov whether the ends justified the means. I gave this
misunderstood distinction between MHB and ADL to prove that the ends
to not -- that all else being equal, long-term pros do not at-weigh
short-term cons simply because on is short term and the other long-term.
Now that I see I based that on an error, that question is reopened as
well.

In the v4 iteration, RYGB cites Sedei Chemed "mem". MHB is a permanent
pesul in the cheftzah. Perhaps the distinction is pe'ulah vs cheftzah.
However, in Sukkah 31b, we learn that a lulav from AZ is kesheirah
bedi'eved (according to Rava) in distinction to shel asheirah. There,
the distinction is made in that an asheirah must be burned, which makes
it effectively burned already (like the adjacent case in the mishnah,
the ir hanidachas). Not because MHB is a pesul in the lulav itself,
since that would include all AZ.



Let's just get more confusing and throw in
ha'oseiq bemitzvah patur min hamitzvah: we see that asei dokheh asei as
    well
Not surprising, since if it's dokheh a lav, then using it to justify
sheiv ve'al ta'aseh of another asei seems no stretch at all.



So, I returned to my notes on Lulav haGazul.

Shitah I:
The Ramban and Ritva cite the baalei Tosafos, and Rabbeinu Peretz
and the Tosafos Shantz (Pesachim 35b, everone else in on Sukkah 31a)
all say that MHB only applies to a cheftzah used to be meratzeh Hashem
or used for shevach.

In practice there are three cases in the gemara:

1- Lulav haGazul. Rashi (Sukkah 36b, "ela leRav") tells us this is the
   purpose of lulav.
2- A qorban (which I presume is self-evidently leratzeh; "reiach
   nikhoach")
3- Shofar (also I think self-evident)

Shitah II:
The Ritva (in his own name, and on all three gemaros) and Tosafos (Sukkah
9a, "hahu") say something similar but different to my point, which would
even more firmly close the "ends justify the means" question. MHB is
where the aveirah is done for the sake/purpose of the mitzvah. (I said
it enabled the mitzvah, which is a more inclusive requirement than done
in order to enable the mitzvah.) The Ritva discusses the shinui sheim
(kaf tamar -> lulav; beheimah -> qorban) being the actual act of
stealing.



Now this handling of the simultaneous case requires more thought than
I put in so far. This touches a chiluq between sibah-mesoveiv and
hasaras hamonei'ah proposed by R' Amiel, who says that causality
requires a flow of time, the pe'ulah preceeding the chalos.
You can't put a shetar in the field being sold to effect the
sale -- it isn't in his reshus until /after/ the shetar enters the
field. However for hasaras hamonei'ah "gito veyado ba'im ke'achas". (See
<http://www.aishdas.org/asp/2005/03/causality-in-halakhah.shtml> for
more explanation.)

Here we are saying that MHB involves sibah umesoveiv even if they are
simultaneous -- the lulav becomes a "lulav" and thus stolen in the same
event as the mitzvah.

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 31st day, which is
micha at aishdas.org        4 weeks and 3 days in/toward the omer.
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Fax: (270) 514-1507                      results in harmony and balance?