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1470 – Tenaim in Asiyas Hamitzvos – (Klal 68 Siman 22) – Asei Docheh Lo Saasei – 2

D'var Halacha
D'var Halacha
1470 - Tenaim in Asiyas Hamitzvos - (Klal 68 Siman 22) - Asei Docheh Lo Saasei - 2
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We are continuing in siman 22, discussing the concept of asei docheh lo saasei. We learned that asei docheh lo saasei only applies when the asei is fulfilled and the lo saasei is transgressed simultaneously. This is known as be’idna in the language of the Gemara.


The Chayei Adam suggests a chiddush. We know that bris milah overrides Shabbos. However, there is a machlokes whether secondary components of the milah override Shabbos, such as carrying the knife through a reshus harabim to the child. Rebbi Eliezer holds that it is muttar. If a person has an option of carrying the knife in a way that they will not transgress a melacha deoraysa, based on what we have learned until now, one should do so, because it would fall under the rule that asei docheh lo saasei only applies when it is impossible to fulfill both the asei and lo saasei. 

Nevertheless, the Rashba points out that according to Rebbi Eliezer, one does not need to avoid the melacha deoraysa. According to Rabi Eliezer, since there will anyways be a melacha involved, there is no need to avoid the melacha deoraysa. Even though the issur deoraysa and the mitzvah of milah are not be’idna, once the mitzvah of milah is allowed on Shabbos, it allows one to override a lo saasei even when it is not be’idna


The Chayei Adam continues, and discusses a conflict between two mitzvos asei. When both mitzvos asei are positive mitzvos, there is often a hierarchy to identify which is done first. The question arises regarding an issur asei and an active asei. The Gemara says that an asei chamur is docheh an asei kal, and gives an example. The korbanos brought in the Beis Hamikdash on any given day had to be brought between the korban tamid of the morning and the korban tamid of the afternoon. The Torah writes, in a positive language, that the final korban of the day must be the korban tamid of the afternoon, from which Chazal learn an issur asei to bring a korban afterwards. The only exception is korban pesach, which is specifically brought after the korban tamid of the afternoon.

The Gemara discusses someone who is a mechusar kippurim, where they require a korban in order to finish their taharah process so that they can eat of the korban pesach. The asei of korban pesach overrides the issur asei of not bringing other korbanos after the afternoon tamid, because the mitzvas asei of korban pesach is considered an asei chamur vis a vis the asei to end the day’s korbanos with the afternoon tamid. 

Additionally, the Chayei Adam points out that even though the asei of korban pesach will not happen until much later (until the korban is brought home and eaten), so the asei of korban pesach is not b’idna of overriding the asei to end the day with the korban tamid, the korban pesach still overrides, because b’idna is not necessary between two mitzvos asei. 


Summary

  • Asei docheh lo saasei applies only where the asei is fulfilled and the lo saasei is transgressed simultaneously. However, according to Rebbi Eliezer, and similar opinions,  there may be situations in which it is not necessary.

  • When there is a conflict between two mitzvos asei, the asei chamur may override the asei kal.

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