Osek Ba-Mitzva Patur Min Ha-Mitzva - part 2

  • Rav Moshe Taragin


In the previous shiur, we addressed the osek ba-mitzva patur min ha-mitzva exemption and posited the basic machloket between Tosafot and the Ran. Tosafot severely limits the exemption to situations in which the newer mitzva threatens performance of the original one. In contrast, the Ran maintains that mere involvement in a mitzva exempts commitment to further mitzvot.


We further explained that Tosafot and Ran likely apply different models toward understanding this exemption. Tosafot probably assumes a “DECHUYA” model, in which the newer mitzva is obligatory but OVERIDDEN by the concern to expedite the first mitzva. Where the two can be multitasked, the principle does not apply. The Ran, however, probably applies a “HUTRA” model; in the context of prior involvement with a mitzva, no future mitzvot are obligatory.


Beyond the different mechanical models, Tosafot and Ran may be disagreeing about the logic behind the exemption. As R. Soloveitchik suggested, they may differ as to which ELEMENT of a mitzva exempts one from a future mitzva. Tosafot maintains that the “kiyum” of a mitzva exempts future competing mitzvot, whereas the Ran believes that it is ACTIVE INVOLVEMENT in a ma'aseh mitzva that renders someone “un-commandable” regarding future mitzvot.


A practical difference would pertain to someone who is engaged in a kiyum mitzva but not a ma'aseh mitzva, in which case Tosafot would, in theory, apply the exemption, whereas the Ran would not. Accordingly, they appear to debate the applicability of the osek exemption to someone wearing tefillin all day. Tosafot maintains that the exemption would theoretically apply, since he is involved in a continuing kiyum mitzva; since this seems absurd, Tosafot severely limits the principle of osek, insisting that it only applies if it is impossible to perform the two mitzvoth simultaneously. The Ran, however, was not concerned, as the tefillin wearer is only passively performing a kiyum mitzva; since he is not ACTIVELY involved in a ma'aseh mitzva, the osek exemption would not apply to him in any case.


Perhaps this scenario of a kiyum without a ma'aseh underlies several additional possible cases of osek situations that R. Soloveitchik did not address but which may very well adhere to similar logic.


The Sha'agat Aryeh (37) discusses a situation of someone involved in the performance of a safek mitzva, a mitzva that he MAY be obligated to perform. Is one who is osek in a safek mitzva exempt from a future mitzva? If a person forgot whether he put on tefillin, for example, he must don them, as tefillin is a mitzva de-oraita and in any case of safek de-oraita, we must act le-chumra; the mitzva must be performed on the chance that it wasn’t performed the first time. Would such a person be exempt from other mitzvot during his donning of tefillin a (possibly) second time?


The premise of this question is that this person presently MAY NOT BE IN FULLFILLMENT of a mitzva; perhaps, then, he is not a candidate for the osek exemption. If, however, it is the act of a mitzva, a ma'aseh mitzva, that creates the exemption, it presumably would apply in this case as well. Whether one is in actual fulfillment of the mitzva or not, he is undoubtedly ACTIVELY involved in a ma'aseh mitzva. Based on the pasuk that serves as the source of the exemption (extensively analyzed in the previous shiur), this person is not considered engaged in his personal schedule/experience; he is performing a religious responsibility to attend to safek de-oraita le-chumra. The fact that he may not be accruing a kiyum mitzva (if he already successfully performed the mitzva) does not hinder the fact that he is executing a ma'aseh mitzva (perhaps unnecessarily, but still a ma'aseh mitzva). Thus, the Sha'agat Aryeh's question about osek be-safek mitzva may depend upon R. Soloveitchik's analysis of whether the kiyum or the ma'aseh exempts one from the future mitzva.


A related question is raised by R. Elchanan Wasserman in his Kovetz Shiurim (volume 2, siman 32). Does involvement in a RABBINIC mitzva exempt one from a mitzva de-oraita? He deduces from a Rashi in Sukka (25a) that indeed it would. Although his deduction is disputable, his position would again seem to revolve around the aforementioned issue. Without question, involvement in a de-rabbanan mitzva would entail ACTIVE performance of a ma'aseh mitzva and the status of someone who is not be-shivtekha be-veitekha (leisurely engaged in personal routine). If the osek exemption applies to a ma'aseh mitzva, it should apply equally to a mitzva de-rabbanan (as R. Elchanan himself proves). However, if the kiyum mitzva exempts future mitzvoth, we may rank the different levels of kiyum and choose the second mitzva, not the first. Typically, the first kiyum mitzva is given preference, but in situations of inequality between de-oraita and de-rabbanan mitzvot, we may choose the second mitzva simply because of its level.  


What about an inverse situation in which a ma'aseh mitzva was performed but no kiyum ha-mitzva was accrued? The mishna in Sukka (25a) discusses a case of "sheluchei mitzva" – people on their way to facilitate a mitzva – who are exempt from other mitzvot based on the osek be-mitzva exemption. Presumably, this includes ANY person traveling to accomplish a mitzva. In a typical scenario, the travel does not constitute a mitzva per se but is defined as hechsher mitzva, preparations necessary to perform the mitzva. Yet the mishna appears to exempt and apply the osek ba-mitzva principle. Involvement in hechsher mitzva is not a kiyum ha-mitzva, it DOES entail ACTIVE INVOLVEMENT in a ma'aseh mitzva. Hence, the simple reading of the mishna implies that a ma'aseh mitzva is sufficient.


Interestingly – and in this case consistently – Tosafot lists three types of sheluchei mitzva: people traveling to redeem captives, to study Torah, or to greet their teacher. Why did Tosafot specifically list these three, when the list would seem to be almost endless? R. Soloveitchik asserts that these three are unique in that the travel itself is considered PART of the mitzva. Since the travel is inherent to the mitzva, it is an integrated part of the mitzva and does, in fact, entail a kiyum AS WELL. Captives must be fetched at distances and in far off locations in which they are being held; the mitzva of pidyon shevuyim inherently demands travel. Part of honoring one’s teacher entails traveling to HIS location. Even the travel toward Torah study is an element of the physical investment necessary for successful Torah study. Since Tosafot maintains that a ma'aseh mitzva is insufficient to exempt one from future mitzvot based on the osek ba-mitzva principle, when the mishna discusses sheluchei mitzva, it undoubtedly refers to travelers for whom transit is part of the mitzva and entails a kiyum ha-mitzva as well.


What about a situation in which no act of mitzva occurs but a kiyum entails? This situation was actually already referenced in the scenario of a tefillin wearer who is accruing a mitzva for the length of his wearing tefillin but is only actively involved in the mitzva while he dons the tefillin. A related case may emerge from a gemara in Bava Metzia (82b). Typically, a person watching an item is performing a mitzva and thereby exempt from other mitzvot. R. Yosef institutionalized this in his principle of “peruta de-Rebbi Yosef" – since watchmen are exempt from tzedaka, they are actually financially benefitting from their duties, rendering many of them shomer sachar (salaried watchmen) even though they do not receive a formal salary.


Based on this concept, the gemara debates the status of someone watching a mashkon (collateral) from which he is slowly collecting his debt. For example, the creditor seized a cow as collateral and is slowly milking the cow and paying off the monetary debt. In this instance, his guarding the animal – although a mitzva – is self-beneficial, since his debt collection object is secured. Would the principle of osek ba-mitzva apply to this type of watchman? On the one hand, he is fulfilling a mitzva of watching an item; on the other, he is benefitting as well. Would this benefit affect the application of osek ba-mitzva as an exemption? The gemara assumes that indeed it is a machloket Amora’im.


Perhaps this debate revolves around the nature of the exemption. The kiyum ha-mitzva would be unaffected by the peripheral benefit; if osek were driven by the accrual of a kiyum, the exemption should apply in this case as well. However, if the exemption is triggered by a ma'aseh mitzva, we may question the identity of the action. Would involvement in activities that serve personal benefit while accomplishing a mitzva also be considered participation in religious activity and exempting of future mitzvoth? This question is debatable. Several commentators have ruled that the act cannot be defined as mitzva driven, and an ACT-based application of osek would be impossible. Again, however, if the osek principle is driven by the kiyum ha-mitzva, the exemption would undoubtedly apply.