Latest update: April 16th, 2012
Lulav or Shofar on Shabbos ‘It Refers To Tithing In Our Days’ (Bechoros 61a)
Rabbi Akiva Yosef Schlesinger, zt”l, an outstanding talmid chacham, lived in Yerushalayim about 100 years ago and authored Lev Ha’Ivri. He aroused a great halachic furor when he announced that he had investigated, researched, and discovered that in Yerushalayim one should blow the shofar on Rosh Hashanah that falls on Shabbos! (Mikraei Kodesh, Yamim Noraim 32). Until today Jerusalemites argue whether he actually did so, but an interesting incidental halachic issue developed from his statement.
If he indeed blew the shofar on Shabbos should one have tried listening to his shofar blowing since it was, after all, Rosh Hashanah? The Sages ruled that one must not blow shofar on Rosh Hashanah which falls on Shabbos. However, if there is a possibility to hear shofar blowing without transgressing their regulation, why shouldn’t one strive to hear it, since he who hears the sounds of a shofar transgresses no prohibition?
An Invalid Shehecheyanu?
Before we study the different facets of this question, let us proceed to another one. Suppose that a person on Sukkos joyfully shakes lulav and etrog on the morning of the first day of Yom Tov and only later realizes that it was Shabbos (on which the Sages forbade shaking the lulav lest a person carry it from a private domain to a public domain). Did he observe the mitzvah? One can perhaps argue that since the Sages forbade shaking lulav on Shabbat his act has of no effect.
The question is not merely theoretical. If he fulfilled the mitzvah, then he does not say shehecheyanu when he shakes lulav the next day. If he didn’t, then he apparently would.
Timing Is Everything
Leading halachic authorities struggled with this question. It pertains to many other mitzvos whose timing was circumscribed by the Sages. According to many Acharonim, Rabbi Akiva Eiger, zt”l, prominently among them (Drush Vechidush, ma’arachah ches, s.v. Vehineh HaMagen Avraham, and Chidushei Rabbi Akiva Eiger on Pesachim 69a), the Sages did not completely nullify mitzvos of the Torah; rather, they forbade their observance in certain situations. Therefore, someone who transgressed the Sages’s regulations, unwittingly or even wittingly, has fulfilled the mitzvah in their view (see Responsa Maharshag, O.C. 36, and Pri Megadim, O.C. 634). Others, however, disagree and maintain that the Sages completely negated the possibility of performing the mitzvah. The act and berachah therefore mean nothing (see Chelkas Yoav, Kaba Dekushyasa, kushya 99; Kovetz Shiurim, II, Kuntres Divrei Soferim; and Encyclopedia Talmudis, entry Yesh koach beyad chachamim, note 85).
What does all this have to do with tithing animals, the topic of our sugya? Among the topics at the center of this dispute is the mitzvah of tithing animals. This mitzvah is operative nowadays – as a mishnah states at the beginning of the chapter (53a) – but the Sages forbade performing it since, with the Temple destroyed, there is no possibility of sacrificing an animal designated for ma’aser. With these designated animals just walking about, some people might accidentally use them for mundane purposes.
The Gemara (61a) says that if a person separated ma’aser beheimah in our era, the sanctified animal should be left to die. Tosafos emphasize (s.v. Bema’aser) that although we do not tithe animals in our era, “if he did so, ma’aser takes effect on the animal.” On the other hand, Rashi explains (s.v. Bazeman hazeh) that the Gemara only made its statement according to the opinion that the Sages did not forbid tithing animals in our era.
Rashi And Tosafos Disagree
Apparently, we have an explicit disagreement between Rashi and Tosafos regarding whether a person has fulfilled a mitzvah that the Sages ruled should not be performed (Chasdei David on the Tosefta, here, ch. 7, beraisa 7). The Chasdei David points out a great chiddush in Rashi’s opinion. Not only did the Sages’s decree negate the mitzvah of tithing, it also caused the Torah-applicable sanctity of ma’aser beheimah not to take effect. We should note that it’s possible that Rashi commented as he did merely to avoid explaining the Gemara as referring to a person who violated the Sages’s regulation.
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About the Author: RABBI YAAKOV KLASS, rav of Congregation K’hal Bnei Matisyahu in Flatbush, Brooklyn, is Torah Editor of The Jewish Press. He can be contacted at email@example.com. RABBI GERSHON TANNENBAUM, rav of Congregation Bnai Israel of Linden Heights, Boro Park, Brooklyn, is the Director of Igud HaRabbanim – The Rabbinical Alliance of America.
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