לע"נ סבתי מרת אסתר בת ר' שמואל
In this weeks parsha we read of the mitzva to write a sefer torah.
There
is a famous question in the poskim how to fulfill the mitzvah of writing a
sefer torah. Must one keep the torah in his possession or is it enough to write
it and then one can give it away. The sefer Toras Chaim [and in his footsteps
the the Minchas Chinuch] maintain that one must keep it in his possession. If
he sells it, loses it or it gets stolen, he must write another one. However,
the sefer Koraban Nesanel and the sefer Pardes Dovid hold that it is sufficient
to write it once a lifetime.
The
M"C says a huge chiddush. Since according to the Toras Chaim the mitzvah
to write a sefer torah is a constant mitzva and not a "one shot
deal", this means that when he does not fulfill this mitzvah, he is being
mevatel a mitzvah every second. This places him in the category of one who
transgresses a lo taaseh which is more stringent than transgressing an regular
aseh. For a regular aseh, teshuva alone is enough to achieve kappara. But for a
lo taaseh, one needs Yom Kippur as well. The M"C goes further than that
and says that an aseh that one is mevatel every second is even MORE stringent
than a lo taaseh.
There
are a number of problems with this understanding:
1]
Why would many aseh's equal [and even be more severe than] one lo taaseh. For
each indivual aseh, teshuvah alone is enough, so why should it make a
difference if we are dealing with one aseh or ten thousand?
Apparently,
he holds that if all of the bittul aseh's stem from one aseh, it is different
and requires a higher level of kapparah.
2] The Yerushalmi [end of Megila] says that if
one has just enough money for either tefillin or mezuzah [probably referring to
someone in chinuch…] he should buy the tefillin. So rules the Shulchan Aruch
[38/12]. The reason is that tefillin is holier than mezuzah or because tefillin
is a חובת גברא [an obligation on the person himself] unlike mezuzah
which is also an obligation on the house.
One
might ask [if he is thinkingJ],
hey, tefillin might be holier but mezuzah is a constant mitzvah while tefillin
is only a mitzvah obligation once a day [Ritva Shabbos 49a and see also the
Biur Halacha 37/2]. According to the Minchas Chinuch, a constant mitzvah trumps
a non-constant mitzvah, so the mezuzah
obligation should precede the tefillin obligation.
[Based
on this, if one is given a mezuzah and tefillin to use for a total of one hour,
the mezuzah could be used for one consecutive hour while the tefillin should be
worn for only a moment on many successive days.]
3]
According to the M"C it would emerge that if one needs to buy kosher meat
for pikuach nefesh when otherwise he would have to eat unkosher meat or he
could buy a mezuzah with that same money, the halacha is that he must buy the mezuzah
since the aseh he is mevatel every second is more stringent than the lo taaseh –
and that is hard to swallow.
4]
The M"C proved his thesis from the famous Ra"n in Yoma that if one
can give a sick person neveila meat or
shecht a kosher animal – he should shecht the animal. Even though shechting is סקילה and eating neveilah meat is only a lo
taaseh, nevertheless he should opt for the shechting. The reason is that many
lo taaseh's are worse than one איסור סקילה. From
here he derives that being mevatel many aseh's are worse than one transgressing one lo taaseh.
There
are two ways to reject this tzu-shtel ["comparison" in Latin]: The
Ra"n was talking about a case where there where many "actions"
of eating a neveilah. That is indeed worse than the one, albeit more stringent
action, of shechting an animal. However, here we are talking about not placing
a mezuzah which is a bittul aseh that happens automatically with no action on
the person's part. That is not more severe than tefillin.
Also,
the Ra"N was talking about many lo taasehs vs. a חיוב
סקילה . There we can say that
the many lo taasehs are worse. The M"C was comparing many asehs to one lo
taaseh – that is a completely different story and the one lo taaseh is worse.
