Yoreh Deah "We do not nullify prohibited things in the first instance"

An issur may be nullified by a heter whether by sixty or by the other rates applicable to the different cases of issur. There is, however, another rule that one is forbidden to nullify an issur l'hatchila. One must not take an issur and cook it deliberately in a sufficient amount of heter in order to nullify the taste of the issur. This shiur is concerned with the details and limits of this rule.

2. Questions.

2.1. Is the issur from the Torah or Rabbinical?

2.2. Does the issur only effect mixtures where the issur is from the Torah or even where it is Rabbinical?

2.3. Even if we hold that the issur affects mixtures where the a rabbinical issur, does it affect all such issurs or only where the issur has a source in the Torah?

2.4. Is the issur limited to the initial deliberate mixing of the issur with the heter (marev the issur with heter). For example, throwing an issur into a pot of heter? Or does it extend to a case of adding more heter to nullify an issur which was already mixed unintentionally with the heter (marbeh the heter)? For example: When an issur falls into a heter which is less than sixty of the issur, is it permitted to add more heter to reach the shiur of sixty in order to nullify the issur?

3. Answers:

3.1. The view that the issur of "m'vutel issur l'hatchila" is from the Torah is based on the Gemora Hulin 98:

The Gemorrah rejects the view that we can learn a general rule from the case of the z'ruah (shoulder). In that case it is muter to cook the z'ruah, which can only be eaten by a Cohen, with the rest of the Ail (ram) brought by a Nazir as a shlomim (peace offering) which can be eaten by everyone. This is true, even though the taste of the shoulder will be mixed with the rest of the meat. We can not learn a general rule from the case of the Ail of the nazir because it is a chiddush. It has a special quality which prevents it from being a general rule applicable to all other cases. Rashi explains the Chiddush as being that it is permitted l'hatchila to mvatel the issur. Which means that is it is permitted to cook the Ail together with the shoulder even though in so doing the issur of the shoulder is nullified.

On the face of it, it is possible to infer that since in this case the Torah permits such a nullification, in all other cases, the Torah will permit it, and therefore the issur is frpm the torah. This is, in fact, the view of the Ravad. The other Rishonim, however, hold that the issur is Rabbinical. Tosefot explains that the difference between the Ail of the Nazir and other cases, is that here it is a mitzveh to nullify the issur l'hatchilah. That is why we cannot learn from it to other cases, which are only a rishut from the Torah.

3.1.2. One possible nafkeh mineh between the issur being from the Torah or Rabbinical is if the nullification was done shogag (unintentionally). For instance when a person was unaware that there was an issur in the mixture or the addition of the heter came about unintentionally. According to Rabbi Akiva Eiger in such a case the law is dependent: If the issur is from the Torah we make a gezarah on the shogag case because of mazid (intentional) case and consequently declare the mixture forbidden. If the issur is Rabbinical then we do not make such a gezarah and the mixture is permitted. The Shach, however, states that in the case of shogag, the mixture will always be permitted irrespective of whether the original isur is from the Torah or Rabbibical.

3.1.3. It is reasonable to maintain that if the issur is from the Torah, the Rabbis would gozer such an issur where the substance of issur is Rabbinical. If, however, the issur itself is Rabbinical, the Rabbis would not gozer where the substance of issur is Rabbinical. We shall see that this may not be the case.

3.2. The second question is concerned with which issurim are within this rule, only Torah cases or even Rabbinical. The source for determining this issue is the Gemora in Betzah 4: The case there involves wood which fell from a tree into an oven on Yom Tov. The wood, being mukzeh, would have the prohibition of deriving any benefit from it. The Gemora states that it is permitted to add other wood which was set aside for use on Yom Tov, before Yom Tov ,and to nullify the mukzeh wood. The Gemora asks: Isn't forbidden to nullify an issur l'hatchila and answers that is true in an case where the issur is from the Torah, but our case deals with a Rabbinical issur. The Gemora continues, but what can we say for Rav Ashi who holds that it is forbidden to nullify a Rabbinical issur l'hatchila in a case where the issur will become muter. For instance, after YomTov. The Gemora answers that this case is different since the issur will be completely consumed before there will be any benefit.

There are three shitas in the Rishonim applying that Gemora to our rule:

3.2.1. The Rosh and the HaRah in Bedek Habeit learn l'chumreh (strictly)that the issur against nullifying an issur l'chatchila applies to Rabbinical issurim as well as Torah ones. the only exception is in a case like the wood case where the issur is makleh kaleh (totally consumed before the benefit is derived).

3.2.2. The Rambam , on the other hand, holds that the issur ofnullification only applies in its fullest extent to Torah issurim . It is permitted, however, to add heter to an Rabbinical issur which is already mixed with heter-(marbeh). Although one must not to take a heter even on rabbinical in nature and mix it in the first place with a heter (marev). The Rambam, therefore, permits us to add more chicken to a pot of chicken into which milk has fallen, but not to pour milk initially into a pot which has sixty times the quantity of milk.

3.2.3. Tosefot and the Rashba take a middle position . They learn from Betzeh that where the issur is Rabbinical and has no source from the Torah, for example cheese of a gentile, then it is permitted to add to it, like the opinion of the Rambam. But where the issur has a source from the Torah like chicken meat, then they will forbid it like the opinion of the Rosh. Tosefot brings a proof from Rabbinical Trumah which has a source in the Torah and may not be nullifiedl lchatchela.

3.2.4. These three views are also reflected in the Achronim and the Posekim. The Shulchan Oruch holds like the Rambam, the Tor like the Tosefot and the Rama like the Rosh. The Posekim also diverge in a similar fashion - the Taz is like the Rambam and the Shulchan Oruch, the Rashal like the Tosefot and the Tur and the Shach hold like the Rosh and the Rama.

4. Problems

4.1. Why does the Rambam make a difference between mixing an issur with a heter in order to nullify it, which he forbids even with a Rabbinical issur and the adding of a heter to an existing mixture which he permits. On the face of it, both cases would be making a gezareh to a gazerah which is not done. Further, it cannot be said that he learns his rule from Betzeh. In that case the wood fell into the oven and was not initially put there. For in the case in Betzeh we are dealing with mukzeh, where we would never be permitted to pick up the wood and put it in the fire. In other isurim, however, where no such restriction applies, perhaps it should be permitted even to mix things l'chatchila.

4.2. Further, why does Tosafot allow one to nullify an issur which has no basis from the Torah and not another kind of issur. Again, since Tosafot holds that the issur to nullify is only Rabbinical, where the substance a Rabbinical issur, why is this not a gezareh on a gezareh whether or not it has a source in the Torah. Further, the proof that Tosefot brings from the case of Trumah cannot be so iron clad seeing that other Rishonim disagree.

4.3. The Nachalat Zvi brings a law of the Rambam which states that a woman may not be m'kudash (married) with an Rabbinical issor. For example, chometz after six hours on Erev Pesach. The Cesef Mishneh adds to the Rambam that if there are two Rabbonons in the case, for example the Chometz itself is only Chometz d'Rabbonon and he gives it to her after six hours on Erev pesach, then she could be m'kudash. The Brit Avraham explains that she could get benefit in such a case as the issur is an issur kal. The Nachalt Zvi asks, why can't she be m'kudash by a mixture of issur d'Rabbonon and heter since, according to the Rambam, she should be allowed to add more heter to nullifythe issur.

5. Explanation.Rabbis

.1. The explanation of the law of why theRabbis forbid initially to nullify an issur d'rabbonon by mixing is explained by Tosefot in Pesachim 30. If it were permitted to nullify in such a way, what would the Rabbonon gain by their issur. Accordingly, when the Rabbonon originally made the gezareh on the issur, whatever it was, they included in that gezareh a din that it could not be m'vatel l'hatchila. The Rishonim disagree as to the extent of that law. The Rambam learns that it is limited to initial mixing. The Tosefot add that it also includes subsequent addition of heter in a case where the issur has a source from the Torah. The Rosh will hold that even if there is no source form the Torah, the original gezareh prevented addition of heter except where the issur will be completely destroyed before any benefit is attained.

5.2. We can therefore explain the difficuly of the Nachalat Zvi. Since the issur of mixing a heter with an issur was made at the same timethat they made the gezerah on the issur, then the issur d'rabbonon is osser by hanoah (benefit) and may not be used for kiddushin (marriage).

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