Mitzvah Ha'ba'ah Be'aveirah

Shabbat (13:3) | Yisrael Bankier | 17 years ago

If someone tears [their garment] out of anger or for one who passed away (meit)… they are exempt.

Shabbat 13:3

This Mishnah introduces the exemption of mekalkel; when one performs a melacha where the result is destructive, they have not transgressed the biblical prohibition. This is particularly pertinent when it comes to the melacha of kore’ah (tearing) implying that one would only be chayav on a biblical level if they tore for a constructive purpose.

The Gemara (Shabbat 105b) brings a Beraitah that flatly contradicts the Mishnah explaining that one would be chayav in both the cases described in the Mishnah.

The Gemara first resolves the contradiction regarding one who tore his clothing for one who passed away (kri’ah). It explains that if one performed kri’ah for a close relative, i.e. a relative for which he is halachically obligated to perform kri’ah, he would be fulfilling his halachic obligation by doing kri’ah. Consequently, the kri’ah is constructive, not defined as mekalkel and the person would be chayav for kore’ah. If however one performed kri’ah for a distant relative for whom he is not obligated to perform kri’ah, the tearing would be considered destructive and he would be patur.5

One question stands out - if someone transgresses Shabbat when performing kri’ah for a close relative, how can they fulfil mitzvah of kri’ah? Is it not considered a mitzvah ha’ba’ah be’aveirah? The Gemara (Sukkah 30a), for example, explains that a stolen lulav may not be used in the performance of the mitzvah as it is considered a mitzvah ha’ba’ah be’aveirah.

The Yerushalmi (Shabbat 13:3) cites the case of stolen matzah being invalid when asking this same question. It answers that by stolen matzah the sin affects the object of the mitzvah. In the case of the Mishnah, the person is performing the sin. In other words, the disqualification of mitzvah ha’ba’ah be’aveirah only applies when the object with which the mitzvah is to be performed has been affected by the sin.6

A number of alternative solutions may be found in the Rishonim. The Tosfot (Sukkah 30a) explain that mitzvah ha’ba’ah be’aveirah only applies when the sin is the act that made the mitzvah available. For example, before the person stole the lulav he had no means of performing the mitzvah. In this case however, the mourner is ready and able to perform the mitzvah at any time.

The Ramban (Pesachim 35b) cites the opinion of the Tosfot (Rabeinu Peretz) that maintain that the disqualification of mitzvah ha’ba’ah be’aveirah only applies to lulav and korbanot as these are used for praise. Rav David Silverberg7 explains that ordinarily past wrong doings do not disqualify one from performing a mitzvah. The only exception is where the mitzvah is an instrument for praising Hashem.

The Ramban (Pesachim 35b) prefers a different understanding. He explains that mitzvah ha’ba’ah be’aveirah is in fact a rabbinic disqualification. Using this understanding, one appreciates that when it comes to the performance of the mitzvah of lulav with a stolen object, this rabbinic disqualification is affective as they are operating in a stringent manner. Yet, in the case of kri’ah, since on a biblical level one still would have performed kri’ah, one has transgressed the prohibition of kore’ah on Shabbat. (Had the rabbinic disqualification been applied, it would have indeed been a leniency rather than a stringency.)


5 It is strongly advised that those who are interested in how the Gemara resolves the case of tearing out of anger, see Shabbat 105b. Also see Rashi there and Rambam (Shabbat ). For a resolution of Rambam’s ruling with the Gemara’s conclusion see Magid Mishnah (Shabbat 8:8). The endevour not only promises a satisfying learning experience, but also moral lessons (musar).

6 See www.dafyomi.co.il/shabbos/insites/sh-dt-105.htm where this explanation of the Yerushalmi is presented in the name of the Ritva.

7 www.vbm-torah.org/archive/salt-chagim/sukkot-vezot-7.htm

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