[Avodah] second shoresh of sefer hamitzvot

Eli Turkel via Avodah avodah at lists.aishdas.org
Fri Jul 29 04:14:31 PDT 2016


Last week R Michael Avraham continued his series and talked about the
second shoresh of the sefer hamitzvot -
This is the most difficult shoresh discussing why mitzvot learned through
the 13 middot are not considered as Biblical mitzvot.

A short summear
1) Since the Shoresh was written in Arabic many rishonim did not have
access to it. It is claimed that the Rambam later regreted not writing it
in Hebrew. Though translated it was not well known in many circles.

2) Moshe Rabbenu knew only general rules. The later rabbis developed
details and used the derashot to base them. Similar to grammar (dikduk)
where people knew intuitively the rules but only many centuries later were
formal rules developed.

3) Tashbetz - Rambam is only talking about the immediate source of the
halacha. However the substance (tochen) is from the Torah.
Problem is that it doesnt't seem to fit into the words of Rambam
Furthermore Rambam in a teshuva stresses that marriage with money is
derabban and so one can't claim that what is in Yad Chazakah is a mistake.
Ramban - accepted the Rambam literally but disagreed with him

4) The second shoresh is rarely quoted in the Yad Hazakah. A few exceptions
include
a) marrying a woman through money (or a ring) seems to
be only derabban while using a "shtar" which is also learned from
a drasha is de-oraisa
b) suppressing one's prophecy - there is no "azhara"
these seem to contradict the Tashbetz but OTOH there are only a "few"
exceptions

So it seems that the Tashbetz is usually correct but there are exceptions.

RAM's basic claim is that there are 2 types of drashot - somchot and
yotzrot. Somchot means the drasha expands and explains a known Torah law.
It may be known through mesorah or verify something known by logic.
Yotzrot means that ir creates a new halacha not previously known (the
concept is already used by Ralbag with hints in Kuzari and Ohr Hashem. Most
drashot are somchot and they create a deoraisa as explained by the
Tashbetz. However there are a few exceptions - yozrot - which are rabbinic.
The second shoresh is talking about the drashot yotzrot whic the Rambam
says is derabban. However, there are only a handful of these. The vast
majority are somchot are indeed the Yad Chazaka lists these as Torah
commandments.

Example - marrying a woman through "money" is learned by a
gezera shava "kicha-kicha"  which is yozeret. In this case we use the
Tashbetz that the source is rabbinic but the content is Biblical.

-- 
Eli Turkel
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