Tuesday, April 04, 2006

Kushya on Hilchot TMS and Na'aseh V'Nishma

The Rambam writes at the end of the 5th Chapter of Hilchot TMS:
המשכיר בית לחברו--על השוכר להביא מזוזה ולקבוע אותה, אפילו היה נותן שכר על קביעתה: מפני שהמזוזה חובת הדר היא, ואינה חובת הבית. וכשהוא יוצא, לא ייטלנה בידו וייצא; ואם היה הבית לגוי, הרי זה נוטלה כשייצא
The fact that M'zuza is chovat haDar and not chovat haBayit explains why a renter and not the owner of a house has the responsibility to affix the m'zuza. If so, why is he not allowed to take the m'zuzot he purchased and affixed when he moves out? If it is chovat hadar his chiyuv ends once he leaves his residence so he should have no responsibility to keep the m'zuzot affixed.

In both this post and the previous one I seem to have entered the murkier waters of the Rambam. It is difficult to find the principle which would clarify such difficulties. I wonder, when b'nei yisrael received the Torah would the very way in which it was presented have made such anafim clear? It would seem that even though the fundamental principles would certainly have been clear to all of b'nei yisrael not every individual would have been able to discern how every anaf emerges (I mean immediately - of course this difficulty would cause them to pursue a dialogue with their Rav to clarify the issue)

Is this what is meant by na'aseh v'nishma? In other words all of b'nei yisrael possess the ikrei dat Moshe Rabeinu but not all of the anafim will be clear. It would seem that at least the generality of each mitzva would have clearly emerged from fundamentals for them (and it should for us). For example, m'zuza is a mazkir which is instrumental remembering and loving Hashem constantly and we need mazkirim rabim because we are prone to the cheit of viewing aretz as keri which we think we can lord over and mold to our own design, etc.


nachum klafter, MD said...

Rabbeinu Yehuda:

Yesher koach on your blog. My you have the zechus to disseminate much Torah and illuminate much darkness.

I do not agree with your conclusions about this post however. I think it is much simpler to say that this is a shenei dinim. Even though mitzvas mezuza is chal and the dar and not on the bayis (it is a mitzvas gavra, and not in the cheftza), there is nevertheless separate prohibition which prevents the renter from removing the mezuza when we realize that a Jew will be living there afterward because there will be no moment when there is not a chiyuv for a mezuza to be affixed. If the first renter removes the mezuza once his chiyuv is terminated, he is mevatel asseh for the mitzvah on the second Jew. I think this is a classic shenei dinim.

Rabbi Joshua Maroof said...

Yehuda, thanks for telling me about your fascinating blog.

In order to answer your question, one might suggest as follows: It is true that mezuza is not chovat habayit - but this simply means that constructing or purchasing a house does not automatically generate an obligation of keviat mezuzah on the physical structure.

The dira or yeshiva in the house changes the character of the 'cheftza' of the home. The material object of 'house' alone is incomplete as long as it lacks dwellers, and is thus not yet a "home" obligated in mezuzah. Thus, a bayit is comprised of a combination between the house and the act of dirah that takes place within it. The structure alone, or the dira alone, wouldn't produce the entity that is mechayav in mezuzah.This distinction is similar to the conventional, often sentimentally motivated distinction between a 'house' and a 'home' - one's act of dwelling in the house actualizes its potential and creates a home.

So the act of dwelling actually endows the house with a new quality. Once this shem is established in the bayit, it cannot be removed unless a contrary form of dirah - dirat akum - supplants it. (There is a basis for qualitatively differentiating the Dira of a Jew and a non-Jew in Masechet Eruvin, where the issue of a non-Jew's impact on the eruv hatzerot is discussed.) This is why the renter who departs CANNOT take his mezuzot.

With this answer we sidestep the explanatory model of shnei dinim which is frequently invoked whenever one fails to perceive the principle that unifies the two aspects of a din!

Sorry if this isn't too clear, I am in a terrible rush....

Yehuda said...

I agree with Josh's critique of Nachum's solution. There is a lack of elegance in positing an additional issur of removing the m'zuza because a Jew will be living there subsequently. Additionaly, he would not be being m'vatel a mitzvat aseh for the second dweller - the second dweller simply must affix a m'zuza upon purchasing the dira.

Josh, you are positing that the yeshivat haDar gives the house the new shem "home". Why would this shem continue to exist until a contrary form of dira supplants it? You seem to be saying that it is because it is a chovat ha"Home" and so the dar has no right to interfere unless he knows the shem "home" will be removed. What proof can you offer for this? It seems you have answered the problem by replacing chovat haBayit with chovat ha"Home" - but the Rambam says it is a chovat haDar!

Rabbi Joshua Maroof said...


I am arguing that the mechanism of chovat hadar is that it produces a certain quality in the house and that the resultant quality is the mechayev.

I don't have a proof, but I have a precedent for this. It is similar to chovat gavra by tsitsit, where - even though we say the obligation is "on the person" - we only require tsitsit once the individual has actually donned the garment. The wearing of the garment actualizes its potential as a beged, and hence is mechayev the beged in tsitsit. This is different from "tsitsit chovat manah" (the idea that once we purchase a beged, we must affix tsitsit) because this latter position maintains that a beged is a beged as soon as it becomes my posession, even without actual use.

In the final analysis, both sides agree that the beged is the essential source of the chiyuv - otherwise, since we hold that the mitsvah is "chovat gavra", the obligation should exist even before we put it on! The only question is at what point the garment acquires the quality that renders it a mechayev in the mitsvah of tsitsit.

And, incidentally, in the case of the garment with tsitsit, we are also prohibited from detaching the fringes from the beged, even though one might argue that as soon as you remove the garment, the mitsvah is over. This is similar to the prohibition of removing the mezuzah.

In conclusion, through the method of medameh davar l'davar, I believe we can solve the problem of chovat hadar.

Yehuda said...

Its interesting, I was also thinking of the similarity to tzitzit. Take a look at my latest post - I think my point there demands a reexamination of the issue. Namely, according to you if one sold his house to a Jew he would not be allowed to take the m'zuza.

Rabbi Joshua Maroof said...

As implied in my comment to your new post, I stand by my sevara for the time being!

Anyway, one could also argue that a sale is a complete obliteration of dirah - it necessarily involves the uprooting of one state of dirah to enable the establishment of a new one. By contrast, the nature of a rental is a continuous dirah by different individuals, a dirah whose particulars regularly change.