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Nazir, 25


QUESTION: The Gemara says that we know that a Vlad Chatas and a Temuras Chatas must be left to die from a Halachah l'Moshe mi'Sinai. Rebbi Yishmael, though, cites a verse that teaches that they must be left to die. Why do we need both a Halachah l'Moshe mi'Sinai and a verse to teach us the same Halachah? The Gemara explains that from the Halachah l'Moshe mi'Sinai alone we would have thought that if one brought the Vlad Chatas or Temuras Chatas as a Korban one would not be Chayav. Therefore, the verse teaches that if one offers it, he transgresses an Aseh.

An Aseh is not punishable with Malkus. What, then, is the verse adding to the Halachah l'Moshe mi'Sinai? Without the Aseh, it would still be obvious that offering the Vlad Chatas as a Korban would be Asur, because of the Halachah l'Moshe mi'Sinai! (Rebbi Akiva indeed does not learn from a verse that there is an Isur Aseh involved. The SHITAH MEKUBETZES explains that Rebbi Akiva holds that if it is a Halachah l'Moshe mi'Sinai then it is not necessary to have also an Isur Aseh.)


(a) REBBI MEIR ARIK in TAL TORAH cites the MORDECHAI who says that a Halachah l'Moshe mi'Sinai normally teaches a law that is only l'Chatchilah. If one ignores or transgresses the Halachah l'Moshe mi'Sinai, then what he does is still acceptable b'Di'eved. According to this, our Gemara is easily understood. Without the verse and with only the Halachah l'Moshe mi'Sinai, we would have thought that if one offers the Vlad Chatas as a Korban, the offering is valid b'Di'eved. The verse teaches that even b'Di'eved, the Vlad Chatas is not acceptable if offered as a Korban.

(b) The RAMBAM (Hilchos Shechitah 5:2, Perush ha'Mishnayos 6:7) implies that a Halachah l'Moshe mi'Sinai differs from a Halachah that is written explicitly in the Torah in that we are lenient in the case of Safek.

The RAMBAN (Sefer ha'Mitzvos, Shoresh 1) challenges the Rambam. If a Halachah l'Moshe mi'Sinai is mid'Oraisa like any Mitzvah explicitly written in the Torah, how, then, can we treat its Safek like a Safek d'Rabanan and be lenient?

The Rambam seems to be following his own reasoning elsewhere (Hilchos Kil'ayim 10:27, Avos ha'Tum'ah 16:1, Bi'os Asuros 18:17), where he holds that a Safek d'Oraisa is *l'Hakel*, mid'Oraisa, and it is only l'Hachmir mid'Rabanan (that is, the Rabanan decreed that a Safek d'Oraisa should be l'Hachmir). The Rabanan, therefore, may be lenient with a Safek involving a Halachah l'Moshe mi'Sinai, even though a Halachah l'Moshe mi'Sinai has the same status as a Halachah written in the Torah. (C.f. Insights to Shabbos 55:1:c for an example of a Halachah d'Oraisa that is not written explicitly in the Torah being treated differently than a Halachah d'Oraisa that is written explicitly in the Torah.)

According to this, our Gemara is saying that had we only had for the Halachah l'Moshe mi'Sinai, we would have been lenient in a case of a Safek. Now that we see that it is an Aseh as well, we are Machmir even in the case of a Safek.

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