Noda BiYehuda Orach Chaim Siman 3

The Noda B’Yehuda in Mahadura Tinyana – Orach Chaim, Siman 3 writes:

But I saw that the Pri Chodosh in Yoreh De’ah 102:5 brings down a Teshuvah from the Ran, where he was asked about shoes that are dyed with a color containing vinegar from issurei hana’ah. The Ran concludes that since this is an unresolved question in Bava Kama—whether chazusa (appearance) is significant—when it comes to a d’Rabbanan, we go l’kula, and chazusa is not a davar. But when it comes to a d’Oraisa, we say chazusa is a davar.

If so, there’s no room for the safek of my honored father and teacher, because the drasha of mi’mah mutar b’ficha is d’Oraisa, so we have to be machmir that maybe chazusa is a davar. But if you look carefully at the words of the Ran in his Teshuvah and clear up the questions that the Pri Chodosh left with a tzarich iyun, it seems to me that this isn’t a proof for our case at all. The Ran’s words are solid and clear. His intent was that at first, he wrote that since this is an unresolved sugyah in the Gemara—whether chazusa is a davar—it remains a safek d’dina, and we should be mekil with these shoes because it’s only a safek d’Rabbanan (since stam yayin is d’Rabbanan).

Then, the Ran concludes that the iba’aya in the Gemara is only about chazusa for other things, but when it comes to issurei hana’ah, the pasuk by orlah and sheviis teaches us that chazusa is a davar—like Rava answers there. And we can’t be more mekil by avodah zarah than by orlah and sheviis. If the Torah assered the chazusa by them, it also assered it by avodah zarah. So, even though stam yayin is d’Rabbanan, when it comes to issurei hana’ah, there’s no safek at all, and it’s definitely d’Rabbanan, so the shoes are assur.

However, the Ran still concludes that even so, we could be mekil with these shoes, because even if we say chazusa is a davar for issurei hana’ah, that’s only by way of grama of hana’ah. But to consider chazusa as actual mamoshus of the issur—on that, there’s no safek at all. The Gemara’s iba’aya is only whether chazusa is enough to be considered a grama of hana’ah, but not whether it has mamoshus. And since it’s only a grama of hana’ah that the Torah assered, if there’s another grama together with the vinegar that causes the dye, it becomes a case of zeh v’zeh gorem, and the shoes are mutar.

This, in my opinion, is the intent of the Ran’s words, and this removes the Pri Chodosh’s questions on the Ran, unless you say that the Pri To’ar also explains the Ran’s words similarly.

And if so, even though the Gemara remains with an unresolved question—whether chazusa is a davar—that’s only in regard to whether one can say harei shelcha lefanecha, but it’s obvious that chazusa doesn’t count as actual mamoshus.

Now, this helps answer what was very difficult for me in Tosafos in Bava Kama (D.H. V’lo Yitzba), where they ask: “If so, we should be able to resolve the question the other way, since the Torah needed to asser it—this shows that chazusa is not a davar!” And they answer: “We could learn from here that it’s considered as if it’s present.”

At first glance, Tosafos seem to be asking whether we can learn from orlah that chazusa is a davar, or whether we say that whatever the pasuk was megaleh for, it was megaleh—but not for other things. If so, Tosafos’ words later (D.H. Rava Rami) seem difficult, where they write: “This is a teimah, because Rava already answered that orlah is different since the pasuk explicitly assered it—so how can we ask from orlah to tumah?”

This is strange, because according to their earlier words, the Gemara’s question was whether we can learn from orlah to other cases that chazusa is a davar. If so, Rava’s kashya is exactly about this—whether we learn from orlah to other cases. The Gemara’s iba’aya wasn’t resolved according to Rava!

Another difficulty: Why would the Gemara even entertain learning from orlah, when we have the rule of shnei kesuvim ha’ba’im k’echad ein melamdin—meaning, when two psukim teach the same rule, we don’t extend it elsewhere? Since we also learn sheviis from the pasuk of tehei that chazusa is a davar, and we can’t learn from orlah to sheviis due to the pircha that orlah had a sha’as ha’kosher, but sheviis didn’t—nonetheless, we could learn orlah from sheviis via a kal v’chomer. If so, we now have two psukim, and ein melamdin!

It’s possible to push back and say that shnei kesuvim ha’ba’im k’echad doesn’t apply here, because the pasuk of tehei isn’t extra, since it’s also used in Avodah Zarah 54b regarding t’fos damav v’asser.

So, it seems to me that Tosafos’ real intent is like what I explained earlier about the Ran. Another proof is the precise wording of Tosafos. In their question, they wrote: “Since the pasuk needed to asser it, this shows that chazusa is not a davar.” But in their answer, they wrote: “We could learn from here that it’s considered as if it’s present.” Why did they switch the wording? They should have said in their answer too: “We could learn from here that chazusa is a davar.”

So, I think Tosafos aren’t saying that we can learn from here that chazusa is a davar in all cases. Rather, their intent is that we definitely can’t learn other cases from orlah and sheviis. Instead, the Gemara’s question was whether, even if chazusa is a davar, we still needed a pasuk by orlah and sheviis to tell us that for these cases, it’s considered as if the issur is physically present. This means that even if there’s another grama, zeh v’zeh gorem doesn’t work for these issurim—against the Ran’s opinion.

But one thing is clear: we don’t learn from orlah and sheviis to other issurim. Rather, if in general chazusa is not a davar, then the pasuk by orlah and sheviis teaches that it’s assur even as a grama of hana’ah. But if in general chazusa is a davar, then the pasuk by orlah and sheviis is saying it’s assur because of mamoshus, meaning zeh v’zeh gorem won’t work.

So, bottom line, even if chazusa is a davar, it’s still not considered mamoshus.

And from here, we see that we can’t assur blackening the straps with something tamei because of mi’mah mutar b’ficha. Since it’s only an issue of chazusa, there’s no mamoshus.

However, on further analysis, the blackening of straps is different from regular dyeing. Regular dyeing doesn’t have mamoshus, but by straps, since the halacha l’Moshe miSinai requires them to be black, this dyeing is more significant—it’s considered m’leches Shamayim, and we say in Shabbos that only tahor animal hides are fit for m’leches Shamayim. Maybe this is similar to what the Rama says in Orach Chaim 32:47, that when gluing the four parshiyos in the tefillin shel yad, one should use kosher glue.

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This dyeing is considered to be from something that is permitted to eat. Based on this, I wanted to explain the sugya in Maseches Shabbos 28b, where the Gemara answers that the Beraisa of Rabbi Yosef, which states “it was not prepared,” is referring to the straps. The Gemara then asks: But didn’t Rabbi Yochanan say that black straps are a halacha l’Moshe miSinai?

Rashi explains that since the halacha is that the straps must be black from [Toras Moshe mi] Sinai, it follows that they must also be tahor from Sinai. Tosafos, however, explain that if the halacha requires them to be black, then kal v’chomer they must be tahor. And if Rabbi Yosef’s Beraisa was meant to teach us something, it should have also mentioned that they must be black.

The Gemara answers: Granted that we have a tradition that they must be black, but do we have a tradition that they must be tahor? This sugya is difficult to understand—what exactly is the makshan (the one in the Gemara who asks a question or raises an objection) asking, and what is the svara behind the disagreement between the makshan and the teretzan? The makshan seemingly holds that one depends on the other, while the teretzan argues that they are unrelated.

But according to what we said earlier, we can explain that the flow of the sugya is as follows: The Gemara answered that the Beraisa of Rabbi Yosef was taught regarding the taharah of the straps, which includes two things—(1) that the leather of the straps themselves must come from something tahor, and (2) that the dye used to blacken them must also come from something tahor. The Gemara then asks: But didn’t Rabbi Yochanan say that black straps are a halacha l’Moshe miSinai? And since the very existence of the straps and their blackness are both from Sinai, we would automatically know that they must be tahor, as the drasha of min hamutar b’ficha was already known, as Tosafos explain. So, why would we need a Beraisa to teach us this?

The makshan held that even dyeing is a significant factor, since the halacha is that the straps must be black. The Gemara answers: Granted that blackness is a halacha l’Moshe miSinai, but do we have such a tradition about taharah? Meaning, does the requirement that the dye be from something tahor follow logically? It is not obvious, because one might have thought that there is no concern about the taharah of the dye, since the main part of the straps is from something tahor, and the dye is secondary, serving only for appearance. Therefore, the Beraisa of Rabbi Yosef is necessary to teach us that even the dye must come from something tahor, as only something tahor is fit for meleches shamayim (holy use). And even this blackening is meleches shamayim, since it is a halacha l’Moshe miSinai that the straps be black.

One should not ask: If, according to the conclusion, the Beraisa was taught concerning the dye, why did it mention leather at all? This is not a difficulty, because even according to the Gemara’s initial explanation—that the Beraisa referred to the hair and sinews—it is also difficult why it mentioned leather, as the Rashba asks in Tosafos (s.v. Lo Tzricha L’korkan).

Based on this, we can also resolve the difficulty raised by the Mageni Shlomo regarding Tosafos, who cite the Rashba’s question: If this Beraisa was meant to teach us this, why did it mention leather? The Mageni Shlomo writes that it is unclear why this question was left unresolved, as in many places the Gemara does not ask an objection if a stronger answer is available. But according to what we explained, it makes sense—the question is difficult even according to the final answer, because even if we say the Beraisa refers to the dye, it is still unclear why it mentioned leather. And from the back-and-forth of this sugya, we see that a dye, when there is a requirement for it in a mitzvah, is considered a real entity, and must be from something permitted to eat (min hamutar b’ficha).

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However, it would seem that the proof is actually the opposite—that even for something where the mitzvah is in its appearance (b’chazusa), min hamutar b’ficha does not apply. For Techeiles was used in the Mishkan and the Beis HaMikdash, in the Paroches and in the bigdei Kehunah. And Techeiles is a dye extracted from the blood of the chilazon, which is a tolaa’s, as Rashi explains in Perek Chelek (Sanhedrin 91a). And a tolaa’s is not from the category of things permitted to be eaten by a Jew (min hamutar l’Yisrael). Yet they still used it for dyeing! This proves that as long as the material itself, which is the wool, is from something pure, there is no issue with the dye that was used, since it is merely for appearance. This demonstrates that dyeing does not have substance (mamashus). Similarly, regarding this Shichor used for straps, even though it is a halacha l’Moshe miSinai, there is no substance to the dye itself such that it should require it to be from a pure source.

However, if this chilazon is a non-kosher species, there are contradictions in the explanations of Rashi. In Menachos 44a, the Beraisa states: “This chilazon—its body resembles the sea, and its form resembles a fish, and it emerges once in seventy years.” If so, there is no proof from Techeiles, for one could argue that the chilazon is a kosher fish, possessing fins and scales.

But Rashi there explains “it emerges from the land”, which would mean it is a land-creature (remes ha’aretz), and if so, it is certainly non-kosher. And from the language of the Beraisa, it appears that it is a land-creature, for it says “its form resembles a fish.” If it were from the water, it would not use the term “resembles”, for if it is like a fish and originates from water, then it is a fish in actuality! That is why Rashi explains “it emerges from the land”, meaning it is a land-creature. And that is why it does not qualify as an actual fish, for something that grows on land does not belong to the category of fish. That is why it says that it resembles a fish in appearance, but it is not actually a fish.

However, Rashi in Sanhedrin (91a, Perek Chelek), in his comment “Chilazon”, writes: “A tolaas that comes from the sea.” Similarly, in Megillah 6a, in his comment “through the Chilazon”, Rashi writes: “A Chilazon that emerges from the sea onto land.” And the Rambam in Hilchos Tzitzis 2:2 writes that the Chilazon is a fish found in the Yam HaMelach (Salt Sea). If so, one could argue that it has fins and scales, and is therefore kosher.

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It is possible to bring a proof from Tola’as Shani, as the Rambam writes in Hilchos Klei HaMikdash (8:13), “Tola’as Shani is wool dyed from a worm.” At first glance, this would indicate that it is an actual worm, as it is known even today that a red dye is derived from a worm, known as kotshaneilia.

However, this proof can be refuted. Even though in the Mishkan, the Beis HaMikdash, and the bigdei kehuna there were materials dyed from something tamei, this does not prove anything regarding the retzuos of tefillin. The reason is that the requirement for something to be mukhsher l’melaches shamayim is learned from the pasuk “L’maan tiheyeh Toras Hashem b’ficha”, which applies specifically to something that is itself Torah, meaning something that contains written text—like tefillin, sefer Torah, and mezuzah. Even the batim of tefillin, which contain the letter shin, are included in this category, as Rashi explains in Shabbos 28b.

And even though the conclusion there is that Rabbi Yosef’s Beraisa teaches that only the hide of a beheimah tehora is fit for melaches shamayim regarding the retzuos of tefillin, and the retzuos themselves do not contain text—since the dalet and yud formed from the straps are not considered kesav, as Tosafos in Menachos 35b explain—nevertheless, the reason the retzuos must be from something tahor is because they are a tashmish kedusha, as Tosafos there write. If so, one could argue that the same should apply to the Mishkan, the Mikdash, and the bigdei kehuna, since they too are tashmishei kedusha.

However, it can still be said that the reason the retzuos must be min hamutar b’ficha is that they are secondary to the batim of tefillin, and the batim are Torah itself, as they contain the four parshiyos and the letter shin. Therefore, the retzuos share the same halachic status, requiring them to be from something permitted. But the Mishkan, Mikdash, and bigdei kehuna, even though they are tashmishei kedusha, are not Torah itself, and therefore, there is no requirement that they be from something tahor, which is why dye from a tamei source was allowed. This would not be the case for tefillin and retzuos, where even the dye must be from something tahor.

At first glance, a proof for this could be brought from the Gemara in Shabbos, which asks, “What was the status of the tachash?” The question is difficult—why was there any doubt? From the Beraisa that states that only the hide of a beheimah tehora is fit for melaches shamayim, it should be clear that the tachash was tahor. This is similar to how Rav Yosef wanted to resolve R’ Elazar’s question about whether the tachash was tahor from this Beraisa, since otherwise, its hide would not have been fit for the Mishkan.

It must be, then, that this Beraisa is no proof at all—because the Beraisa refers to retzuos, which are secondary to the batim of tefillin, and since the batim contain Torah, they require taharah. But the tachash, which was used in the Mishkan, is different—since the Mishkan itself is not considered “Torah,” there is room to be uncertain about its status.

This approach also answers the difficulty raised by the Magen Avraham (O.C. 586:3), who questions the Olas Shabbos for disagreeing with the Rama and permitting a shofar from a beheimah temeiah, arguing that we do not follow the ruling of “only from a beheimah tehora.” The Magen Avraham writes that the Olas Shabbos overlooked the sugya in Shabbos 28b, where the entire Torah is compared to tefillin, as stated in Kiddushin 35a.

However, in my view, the Olas Shabbos is correct, because from the Gemara’s ibaya regarding the tachash, it is evident that we do not follow Rabbi Yosef’s ruling equating the Mishkan with tefillin, sefer Torah, and mezuzah, which are Torah itself. The Gemara there discusses whether the tachash was tahor, which should have been obvious if we truly held that “only something tahor is fit for melaches shamayim.” Clearly, this is not a general rule but applies specifically to tefillin, since they contain Torah, and their retzuos are secondary to them.

Additionally, I find a difficulty with the Magen Avraham’s view that all of Torah is equated with tefillin regarding this requirement to be from something tahor. What would he answer regarding the sugya in Sukkah 23a, where the Gemara states that if an elephant is tied down, everyone agrees it is valid as a wall for a sukkah? But an elephant is not min hamutar b’ficha! Yet, it is permitted for a mitzvah as a sukkah wall. If so, what difference is there between a shofar (which is a tashmish for the mitzvah of blowing) and the dofen of a sukkah (which is a tashmish for the mitzvah of sitting in a sukkah)?

And dofnos sukkah are also a d’oraisa requirement, as we see in Sukkah 6b, where the question of yesh im l’mikra vs. yesh im l’masores is discussed regarding it. Even though one could argue that a shofar is more stringent because it is for zikaron and therefore has a higher status, as the Gemara in Rosh Hashanah 26a states, according to the Magen Avraham, an elephant should be invalid as a dofen sukkah, since he holds that all mitzvos are equated to tefillin in this regard.

Rather, the conclusion must be that this requirement—that something must be from min hamutar b’ficha—is not applied universally to all mitzvos, but only to tefillin, since they contain Torah.