Noda BiYehuda Orach Chaim Siman 3

Noda B’Yehudah, Mahadura Tinyana — Orach Chaim, Siman 3

I saw that the Pri Chadash in Yoreh Deah 102:5 brings a teshuvah of the Ran. The Ran was asked about shoes that were dyed with a coloring mixture containing vinegar that was assur b’hana’ah. He concludes that since the Gemara in Bava Kama leaves unresolved the question of whether chazusa milsa hi—whether visible appearance or color has halachic substance—in a derabbanan matter we are lenient and say that the appearance itself is not considered significant. But by a Torah prohibition we would have to be machmir and say that perhaps chazusa milsa hi.

If so, there would seemingly be no room for the safek raised by my father and rebbe, since the derashah of “min hamutar beficha”—that it must come from something permitted for a Jew to eat—is d’Oraisa. We should therefore be machmir and say that perhaps the color itself does count.

However, when one looks carefully at the Ran’s teshuvah, and in order to answer the questions which the Pri Chadash leaves unresolved, it seems to me that there is actually no proof from there to our case.

The Ran’s words are very precise. His intention is as follows: At first he writes that since the Gemara leaves unresolved whether chazusa milsa hi, it is a safek in halachah, and normally we should therefore be lenient regarding these shoes, since we are dealing only with a safek derabbanan—stam yeinam being derabbanan.

But then the Ran says that perhaps the Gemara’s safek is only whether color has significance regarding other halachos. When it comes to issurei hana’ah, however, the Torah already revealed by Orlah and Shevi’is that color does have significance, as Rava explains there. We cannot be more lenient regarding avodah zarah than regarding Orlah and Shevi’is. Therefore, even though stam yeinam itself is only derabbanan, in terms of the rules of issurei hana’ah there is no safek; Chazal definitely prohibited it, and the shoes should seemingly be assur.

Nevertheless, the Ran concludes that the shoes can still be permitted. Even if we say that color has significance regarding issurei hana’ah, that only means that the Torah prohibited the benefit that was caused by the color. It does not mean that the color is regarded as actual substance of the issur. On that point there is no safek at all. The Gemara’s question is only whether the visible appearance counts as a form of benefit, not whether it is actual prohibited substance.

Therefore, since it is only the resulting benefit which the Torah prohibited in issurei hana’ah, if there is an additional factor together with the prohibited vinegar that causes the coloring, the shoes are permitted because of zeh v’zeh gorem—the result came about through both a permitted and a prohibited cause.

That, in my opinion, is the proper understanding of the Ran, and with this the Pri Chadash’s questions against him fall away. Afterwards I saw that the Pri To’ar also explains the Ran in a manner close to this.

So even though the Gemara discusses whether chazusa milsa hi regarding whether one can say, “Here is your item before you,” it is nevertheless clear that color itself is not regarded as actual physical substance.

With this, I think we can answer something that bothered me greatly in Tosafos in Bava Kama, in the dibbur beginning “V’lo yitzba.”

Tosafos asks: If so, why not prove the opposite from the fact that the Torah needed a special prohibition? That itself should show that chazusa lav milsa hi—color normally has no halachic substance. Tosafos answers that one may learn from here that the Torah considers it as though the issur itself were still present.

At first glance, Tosafos seems to mean that this itself is the Gemara’s safek: perhaps we learn from Orlah that chazusa milsa hi in general, or perhaps we say “heicha d’gali, gali”—where the Torah specifically revealed the rule it applies, but not elsewhere.

But according to that understanding, the Tosafos later on the second amud becomes difficult. There, in “Rava rami,” Tosafos asks how Rava can raise a contradiction from Orlah to tumah, when Rava himself already answered earlier that Orlah is different because the pesukim specifically say so and we do not learn other cases from there.

That is hard to understand. According to Tosafos earlier, the Gemara itself remained with an unresolved question whether we learn from Orlah to other areas that chazusa milsa hi. If so, Rava could simply be working according to the side of the safek that we do learn from Orlah.

There is another difficulty. How can the Gemara even have a safek whether we learn from Orlah? Orlah and Shevi’is would seem to be shnei kesuvim haba’im k’echad, two separate pesukim teaching the same principle regarding color, and the rule is that two such pesukim do not create a general rule for elsewhere.

Even though one could not learn Shevi’is from Orlah, because Orlah has the special feature that the item once had a period when it was permitted, one could seemingly learn Orlah from Shevi’is through a kal vachomer. They would therefore still constitute two pesukim teaching the same point.

One could perhaps answer that this is not really shnei kesuvim haba’im k’echad, because the pasuk of “tihyeh” by Shevi’is is not extra; it is also darshened in Avodah Zarah 54b to teach that Shevi’is transfers its kedushah to the money received for it.

Therefore, it seems to me that Tosafos should be explained along the same lines as I explained the Ran above.

There is also a diyuk in Tosafos’s wording. In the question Tosafos says: Since the Torah needed to prohibit it, this should prove that chazusa lav milsa hi. But in the answer Tosafos changes the language and says that from here we can learn that it is considered as though the issur itself is still present. Why did Tosafos change the wording? They could simply have answered that perhaps we learn from here that chazusa milsa hi.

It therefore seems that Tosafos does not mean that Orlah teaches a general rule that color has substance in all areas. On the contrary, it is obvious that we cannot learn other issurim from Orlah and Shevi’is.

Rather, Tosafos means as follows: The Gemara’s safek still makes sense. It could be that in general chazusa milsa hi, and nevertheless the Torah still needed a special pasuk by Orlah and Shevi’is. What does that special pasuk teach? That specifically by Orlah the color is considered as though the issur itself were actually present.

That would mean that the Torah was machmir regarding the coloring of Orlah and Shevi’is and treated the color like actual substance. One practical nafka minah would be that even if another factor also contributed to producing the color, zeh v’zeh gorem would not help—unlike the Ran’s position above.

But as far as other issurim are concerned, it is clear that we do not derive their rules from Orlah and Shevi’is.

The two sides of the Gemara’s safek would therefore work as follows:

If generally chazusa lav milsa hi, then the special pasuk by Orlah and Shevi’is teaches that their color is nevertheless prohibited because it creates a benefit.

But if generally chazusa milsa hi, then the special pasuk by Orlah and Shevi’is teaches something stronger: that their color is considered actual substance, so that even zeh v’zeh gorem would not permit it.

This seems to me the proper way to answer Tosafos.

In any case, we have established that even according to the side that chazusa milsa hi, the color is still not actual physical substance.

Accordingly, one would initially conclude that there should be no problem using a blackening substance made from a non-kosher source for tefillin straps on account of “min hamutar beficha.” Since the black color is only a visible appearance and has no actual substance, perhaps there is no concern.

However, after further thought, the blackening of tefillin straps cannot necessarily be compared to ordinary coloring. Although ordinary coloring has no substance, by tefillin straps the black color itself is a halachah l’Moshe miSinai. Since the halachah specifically requires the straps to be black, this coloring has a greater status.

It may therefore be included in the rule regarding meleches Shamayim, sacred items, concerning which the Gemara in Shabbos says that only the hide of a kosher animal is fit to be used.

This may be comparable to what the Rema writes in Orach Chaim 32:47 regarding the glue used to attach the four parshiyos of the shel yad: one should be careful to use kosher glue.

We can now return to the safek raised by my father, the Gaon, zt”l.

Although appearance and color ordinarily have no actual substance, perhaps where the mitzvah specifically requires a certain color—as with tefillin straps, whose blackness is a halachah l’Moshe miSinai—the coloring itself must come from something that is mutar beficha.

Based on this, I suggested an explanation of the Gemara in Shabbos 28b.

The Gemara answers that Rav Yosef’s braisa—“Only the hide of a kosher animal was permitted for meleches Shamayim”—was stated regarding tefillin straps.

The Gemara asks: But didn’t Rav Yitzchak say that black tefillin straps are a halachah l’Moshe miSinai?

Rashi explains the question to mean: If the fact that the straps must be black was given at Sinai, presumably the requirement that they be from a kosher animal was also given at Sinai.

Tosafos explains that if there is a special requirement for them to be black, then certainly they must be from a kosher source; and if Rav Yosef’s braisa came to teach the requirement of a kosher source, it should also have taught that the straps must be black.

The Gemara answers: True, we have a tradition that they must be black, but do we have a tradition that they must be from a kosher source?

At first glance, this whole sugya is difficult. What exactly did the makshan initially assume, and what changed in the answer? Why should blackness and kosher origin necessarily depend on each other?

According to what we explained, however, the sugya can be understood very well.

When the Gemara says that Rav Yosef’s braisa refers to tefillin straps and teaches that they must be from a kosher source, this can include two separate requirements:

First, the leather of the straps themselves must come from a kosher animal.

Second, the coloring used to make them black must also come from a kosher source.

The Gemara then asks: Rav Yitzchak already taught that black straps are a halachah l’Moshe miSinai. Since both the straps themselves and the requirement that they be black are from Sinai, we should automatically know that they must be kosher, because the derashah of “min hamutar beficha” was already known, as Tosafos says. Why then is Rav Yosef’s braisa necessary?

The makshan assumed that the coloring itself has halachic substance precisely because the black color is a required halachah.

The Gemara answers: Although we know from Sinai that the straps must be black, did we also know that the black coloring must come from something kosher?

That is not obvious.

One might have thought that the dye does not matter, since the strap itself comes from a kosher animal. The coloring could be batel to the main leather because it is merely there to produce the appearance.

Rav Yosef’s braisa therefore teaches that even the coloring must come from a kosher source, because nothing may be used for meleches Shamayim unless it is kosher. And this black coloring itself is part of the meleches Shamayim, because the requirement that the straps be black is a halachah l’Moshe miSinai.

One should not ask that if the braisa is ultimately teaching a halachah regarding the coloring, why does it specifically speak about hide.

That is not a difficulty, because even according to the Gemara’s first answer—that the braisa refers to the hairs and sinews used with tefillin—the same question exists: Why does the braisa speak specifically about hide? The Rashba already raises this question, as brought in Tosafos.

According to this, we can also answer the diyuk of the Meginei Shlomo on Tosafos. Tosafos leaves the Rashba’s question unanswered—if this is what the braisa came to teach, why does it mention hide? The Meginei Shlomo wonders why Tosafos leaves this as a question, when in many places Tosafos says that the Gemara could have asked a certain question but instead answered something stronger.

According to what I have written, it is clear. The question remains even according to the Gemara’s final answer, because even when the braisa is established regarding tefillin straps, it is referring specifically to the coloring, and the question remains: Why does the braisa speak specifically about hide?

So from the whole shakla v’tarya of this sugya it appears that when the color itself is an essential requirement of the mitzvah, the coloring has enough halachic significance that it too must come from something that is mutar beficha.

However, seemingly one can prove the opposite: even where the mitzvah itself consists of a required color, perhaps “min hamutar beficha” still does not apply to the coloring.

After all, techeiles was used in the Mishkan and Mikdash, in the paroches and the bigdei kehunah. Techeiles is a dye produced from the blood of the chilazon, which Rashi in Sanhedrin 91a describes as a tola’as, a creeping creature or worm.

Such a creature would not be something permitted for a Jew to eat. Nevertheless, its dye was used.

Apparently, as long as the actual material being dyed—the wool—is from something kosher, there is no concern regarding the source of the dye, because the coloring is only an appearance and has no physical substance.

If so, the same should apply to the black coloring of tefillin straps. Even though their blackness is a halachah l’Moshe miSinai, the coloring should not itself need to come from a kosher source.

However, the assumption that the chilazon is a non-kosher species is itself unclear, because there are differences and apparent contradictions in Rashi’s descriptions.

In Menachos 44a the braisa says:

“The chilazon: its body resembles the sea, its form resembles a fish, and it comes up once in seventy years.”

If so, there is no proof at all from techeiles, because perhaps the chilazon is actually a kosher fish, possessing fins and scales.

However, Rashi there in Menachos explains that it “comes up from the earth.” If it is a land-creeping creature, then certainly it is tamei.

In fact, the wording of the braisa itself seems to indicate that it is a land creature, because it says “its form resembles a fish.” If it lived in the water and had the form of a fish, it would simply be a fish. Therefore, Rashi explains that it comes up from the ground: it is fundamentally a land creature and is only said to resemble a fish in appearance.

But Rashi in Sanhedrin 91a writes that the chilazon is a creature that “comes out of the sea.” Similarly, in Megillah 6a Rashi says that the chilazon “comes up from the sea onto the land.”

The Rambam as well, in Hilchos Tzitzis chapter 2, writes that the chilazon is a fish found in the sea.

According to this, it is possible that it has fins and scales and is kosher.

One can, however, bring a proof from tola’as shani.

The Rambam writes in Hilchos Klei HaMikdash 8:13:

“Tola’as shani is wool dyed from the tola’as.”

It would seem that this is an actual insect, since even in our own time there is a well-known red dye produced from an insect, known as cochineal.

Still, even this proof can be rejected.

Even though materials in the Mishkan, Mikdash, and bigdei kehunah were dyed using something non-kosher, that does not necessarily prove anything regarding tefillin straps.

The rule that only kosher species are valid for meleches Shamayim is derived from the pasuk “l’ma’an tihyeh Toras Hashem beficha”—“so that the Torah of Hashem shall be in your mouth.”

Perhaps this requirement applies specifically to objects which themselves constitute Torah, meaning items that contain writing: tefillin, a Sefer Torah, a mezuzah, and the tefillin boxes, which contain the letter shin, as Rashi explains in Shabbos 28b.

True, the Gemara ultimately says that Rav Yosef’s braisa—“Only the hide of a kosher animal was permitted for meleches Shamayim”—refers to the straps of tefillin, even though the straps have no written Torah on them. The daled and yud formed by the straps are not considered writing, as Tosafos says in Menachos 35b.

The reason the straps are included may therefore be because they are tashmishei kedushah, as Tosafos explains there.

If so, one might argue that the Mishkan, Mikdash, and bigdei kehunah are also tashmishei kedushah and should have the same rule.

Nevertheless, there is room to distinguish.

Tefillin straps are directly subordinate to the tefillin boxes, and the boxes themselves are Torah: they contain the four parshiyos and the letter shin. Therefore, the straps receive the same halachic status and must also be from something mutar beficha.

The Mishkan, Mikdash, and bigdei kehunah, however, although they are tashmishei kedushah, are not themselves Torah. It may therefore be permitted to use a dye from a non-kosher source for them.

If so, regarding tefillin and their straps, one can still maintain that even the coloring must come from something kosher.

There is seemingly a proof to this distinction from the Gemara in Shabbos.

The Gemara asks: “What was the final conclusion regarding the tachash?”—was it kosher or not?

At first glance, what is the safek? Rav Yosef’s braisa says that only the hide of a kosher animal was fit for meleches Shamayim. Rav Yosef himself wanted to prove from this braisa that the tachash must have been kosher, since its hide was used in the Mishkan.

Apparently, however, the braisa gives no proof at all regarding the Mishkan. Once the Gemara establishes Rav Yosef’s braisa as referring specifically to tefillin straps, which are attached to the tefillin boxes and thus to actual Torah, one can no longer prove from it that the tachash used in the Mishkan had to be kosher.

This would explain why the Gemara can still remain uncertain whether the tachash was kosher: the Mishkan itself is not considered “Torah” in the same sense.

With this we can also answer the Magen Avraham in Orach Chaim 586:3.

The Magen Avraham questions the Olas Shabbos, who disagrees with the Rema and permits a shofar from a non-kosher animal, arguing that we do not pasken according to the rule that only kosher species may be used for meleches Shamayim.

The Magen Avraham says that the Olas Shabbos overlooked the Gemara in Shabbos 28, and adds that the reason is that the entire Torah is compared to tefillin, as stated in Kiddushin.

In my opinion, however, the Olas Shabbos’s position is understandable.

From the Gemara’s unresolved question regarding the tachash, it appears that we do not accept Rav Yosef’s general comparison between the Mishkan and tefillin, Sefer Torah, and mezuzah—which themselves constitute Torah.

The Ran in the second perek of Rosh Hashanah likewise remains uncertain whether the requirement that something be from a kosher source applies to other mitzvos. He writes that the Gemara indicates that even in the Mishkan it was possible to use something non-kosher.

So it appears that this halachah applies specifically to tefillin because they contain Torah, with the straps included because they are attached to the tefillin. But regarding other tashmishei kedushah and tashmishei mitzvah, it may be permissible to use something from a non-kosher species.

Otherwise, why would the Gemara remain uncertain whether the tachash was kosher? Rav Yosef’s braisa would already prove it.

We therefore see that other sacred objects cannot automatically be compared to tefillin.

Even aside from this, I have another difficulty with the Magen Avraham’s position that the entire Torah is compared to tefillin even for purposes of requiring a kosher species.

What would he do with the Gemara in Sukkah 23a, which says that according to everyone, if an elephant is tied in place, it may serve as a wall of a sukkah?

An elephant is certainly not mutar beficha, and nevertheless it can be used as part of the mitzvah.

What difference is there between a shofar, which is used for the mitzvah of teki’as shofar, and the walls of a sukkah, which are used for the mitzvah of sukkah?

The sukkah walls themselves are also a Torah requirement, derived from the word “basukkos,” depending on whether one follows yesh eim l’mikra or yesh eim l’masores, as the Gemara discusses in Sukkah 6b.

One could perhaps distinguish and say that shofar is more stringent, because since it comes for zikaron, remembrance before Hashem, it is considered like something used in the innermost service, as the Gemara says in Rosh Hashanah 26a.

But according to the Magen Avraham’s broader position—that the entire Torah is compared to tefillin for the requirement of min hamutar beficha—an elephant should also be invalid as a sukkah wall.

We must therefore conclude that regarding this specific requirement, the rest of the Torah is not automatically compared to tefillin.