Babylonian Talmud: Tractate Yebamoth

Folio 6a

this is a case¹  of ass driving.²  And [you say that] it does not supersede³  even in such a case?⁴  But then what of the generally accepted rule that a positive precept supersedes a prohibition. Should it not be inferred from this case that it does not supersede!⁵  And if it be replied that the prohibitions of the Sabbath are different⁶  because they are more stringent,⁷  surely the following Tanna, [it may be pointed out,] speaks of prohibitions generally⁸  yet no one advances any objection.⁹  For it was taught: Since it might have been assumed that if his father had said to him,¹⁰  'Defile yourself',¹¹  or if he said to him, 'Do not restore,'¹²  he must obey him, it was explicitly stated, Ye shall fear every man his mother, and his father, and ye shall keep my Sabbaths,¹³  it is the duty of all of you to honour Me!¹⁴  — The real reason¹⁵  is because this objection may be advanced: Those¹⁶  are in a different category¹⁷  since they are also essentials in the execution of the precept.¹⁸

But [the reason¹⁹  is because] it might have been assumed that this²⁰  should be derived from the precept of the building of the Sanctuary. For it was taught: Since it might have been assumed that the building of the Sanctuary should supersede the Sabbath, it was explicitly stated, Ye shall keep My Sabbaths, and reverence My Sanctuary;²¹  it is the duty of all of you to honour Me. Now is not the case in point one of [a father's order to his son to] build or to demolish,²²  and yet the reason [why it does not supersede the Sabbath is] because the All Merciful has written, 'Ye shall keep My Sabbaths',²³  but had that not been written it would have superseded?²⁴  — No; the case in point is one of ass driving.²⁵

And [you say] that it²⁶  does not supersede a prohibition even in such a case?²⁷  But what of the generally accepted rule that a positive precept supersedes a prohibition? Should we not infer from this case that it does not supersede! And if it be replied that the prohibitions of the Sabbath are different²⁸  because they are of a more stringent nature,²⁹  surely the following Tanna [it may be pointed out] speaks of prohibitions generally³⁰  yet no one advances any refutation.³¹  For it was taught: Since it might have been assumed that if his father had said to him,³²  'Defile yourself',³³  or if he said to him, 'Do not restore,'³⁴  he must obey him, hence it was explicitly stated, Ye shall fear every man his mother, and his father etc.,³⁵  it is the duty of all of you to honour Me!³⁶  — The true reason³⁷  is because this objection may be advanced: Those³⁸  are in a different category³⁹  since they are also essentials in the execution of the precept.⁴⁰  [But the law relating to] essentials in the execution of a precept could be derived from the previously cited text!⁴¹  — That is so indeed. What need, then, was there for the text, Ye shall keep My Sabbaths, and reverence My Sanctuary?²³  — It is required for the following deduction:⁴²  As it might have been imagined that a man should reverence the Sanctuary, it was explicitly stated in the Scriptures, Ye shall keep My Sabbaths, and reverence My Sanctuary;²³  the expression of 'keeping' was used in relation to the Sabbath and [in the same verse] that of 'reverence' in relation to the Sanctuary [in order that the following comparison may be made]: As in the case of 'keeping' used in relation to the Sabbath

1. Lit., 'negative precept'.
2. I.e., where a father ordered his son to desecrate the Sabbath by driving an ass; a prohibition which, unlike slaughtering or cooking, does not involve the penalty of kareth. V. Shab. 154a.
3. Lit., 'and even thus', sc. even the mere prohibition of ass driving.
4. A mere prohibition not involving the penalty of kareth.
5. Even a mere prohibition which does not involve the penalty of kareth.
6. From other prohibitions.
7. Since the infringement of any one of the laws of the Sabbath is regarded as the sin of idolatry (v. 'Er. 69b), even a mere prohibition which does not involve kareth, cannot be superseded by a positive precept.
8. Lit., 'stands in the world', i.e., he compares with the prohibitions of the Sabbath others which have no connection with it.
9. That the prohibitions of the Sabbath being more stringent than others should not be compared with them.
10. His son who was a priest.
11. For the dead, which is forbidden to a priest. V. Lev. XXI, 1ff.
12. A lost animal. V. Deut. XXII, 1.
13. Lev. XIX, 3.
14. Thus it has been shewn that prohibitions generally may be compared with those of the Sabbath. The suggestion, therefore, that the parents' order supra concerned the performance of the act of ass driving is untenable. If, consequently, the order must have consisted of a request to perform an act involving the penalty of kareth, that case well supplies a satisfactory answer to the question (supra 5b) as to what need was there for the text, ''aleha', in Lev. XVIII, 18.
15. Why no satisfactory reply to the question, what need is there for the text ''aleha', may be obtained from the precept of honouring one's parents.
16. A father's orders to his son to slaughter or to cook on the Sabbath.
17. From such a precept as the levirate marriage.
18. Lit., 'it is a preparation of the precept'. The precept of honouring a father cannot possibly be performed by the son unless he actually executes the act of slaughtering or of cooking, which he has been ordered by his father to do, so that the fulfilment of the positive precept (honouring one's parents) is entirely dependent on its superseding the prohibition (that, e.g., of cooking). Hence it was necessary to have an explicit text to indicate that, even in such a case, a positive precept does not supersede a prohibition. In the case of the levirate marriage, however, the infringement of the prohibition is not absolutely essential to the fulfilment of the precept, since, instead of the marriage, halizah may be arranged, and the question remains, what need is there of the verse ''aleha'.
19. Why the text, ''aleha' (Lev. XVIII, 18) was needed to indicate that wherever the deceased childless brother's widow was the living brother's forbidden relative no levirate marriage must take place.
20. That a positive precept supersedes a prohibition involving kareth and consequently that the levirate marriage may take place even in such a case (v. previous note).
21. Lev. XIX, 30.
22. Actions which are among the principal classes of labour that are forbidden on the Sabbath under the penalty of kareth.
23. Lev. XIX, 30.
24. Thus it follows that a positive precept does supersede a prohibition even though the latter involves kareth.
25. Which does not involve kareth.
26. A positive precept.
27. Which does not involve kareth.
28. From other prohibitions.
29. Cf. supra p. 21, n. 13.
30. Cf. supra p. 21, n. 14.
31. Cf. supra p. 21, n. 15.
32. His son who was a priest.
33. Cf. supra p. 21, n. 17.
34. Cf. supra p. 21, n. 18.
35. Lev.XIX, 3.
36. Cf. supra p. 22, n. 2.
37. Cf. supra p. 22, n. 3.
38. Cf. supra p. 22, n. 4,
39. Cf. supra p. 22, n. 5.
40. Cf. supra p. 22, n. 6.
41. Lit., 'from there', from Lev. XIX, 3, and this superfluous text serves to extend the principle of a positive precept superseding a negative precept involving kareth to a case such as levirate marriage. Hence the need of the text ''aleha'.
42. Lit., 'for as it was taught'.

one does not reverence the Sabbath but Him who ordered the observance of the Sabbath, so in the case of 'reverence' used in relation to the Sanctuary, one is not to reverence the Sanctuary but Him who gave the commandment concerning the Sanctuary. And what is regarded as the 'reverence of the Sanctuary'? — A man shall not enter the Temple mount¹  with his stick, shoes or money bag²  or with dust upon his feet, nor may he use it for making a short cut;³  and spitting [is there forbidden] by inference a minori ad majus.⁴  This, however, might apply⁵  only to the time when the Sanctuary was in existence; whence is it deduced that the same holds good of the time when the Sanctuary no longer exists? It was expressly stated in Scripture, Ye shall keep My Sabbaths, and reverence My Sanctuary;⁶  as the 'keeping' that was used in relation to the Sabbath holds good forever, so also the 'reverence' used in relation to the Sanctuary must hold good forever.⁷

Really [the reason⁸  is because] it might have been assumed that this⁹  should be derived from the prohibition of kindling a fire [on the Sabbath]. For a Tanna of the School of R. Ishmael taught: Wherefore was it stated, Ye shall kindle no fire throughout your habitations?¹⁰  'Wherefore 'was it stated'!¹¹  Surely if one is to follow R. Jose,

Granted, however, [that it is according to the view of] R. Jose, might it not be suggested that R. Jose said that 'kindling a fire [on the Sabbath] is mentioned separately in order to indicate that it is a mere prohibition' [in the case only of] ordinary burning; the burning by the Beth din,³⁵  [however, is surely a case of] boiling of the metal bar³⁶  concerning which R. Shesheth said that there is no difference between the boiling of a metal bar and the boiling of dyes?³⁷  — R. Shimi b. Ashi replied: This Tanna³⁸  [requires Scriptural texts] not because elsewhere he holds that a positive precept supersedes a prohibition, but because this³⁹  might have been obtained by inference a minori ad majus; and it is this that he meant to say: 'As regards the application of the text, Every one that profaneth it⁴⁰  shall surely be put to death,⁴¹  it might have been said to apply to the several kinds of labour other than that of the execution of a judicial death sentence, but that a judicial death sentence does supersede the Sabbath, by inference a minori ad majus:

1. On which the Sanctuary stood.
2. [H], Lat. funda. Others, 'a hollow girdle in which money is kept'.
3. [H], cf. compendiaria.
4. Bet. 54a. For an explanation of the inference, v. ibid. 62b.
5. Lit., 'it is not (known) to me'.
6. Lev. XIX, 30.
7. And since there is no superfluous verse to extend the principle in such a case as levirate marriage, the question remains, what need was there for the text ''aleha'.
8. Cf. supra p. 22, n. 7.
9. Cf. supra p. 22, n. 8.
10. Ex. XXXV, 3.
11. The prohibition of kindling a fire, surely, is included in the general prohibition of labour on Sabbath.
12. I.e., only a negative commandment the transgression of which does not, like the other Sabbath offences, involve the penalties of stoning or kareth. The former, if the offender was warned beforehand of the consequence of his offence, the latter, where no such warning had been given.
13. Lit., 'to divide', i.e., one of the thirty-nine kinds of labour that are forbidden on the Sabbath was singly specified in order to indicate that to incur the prescribed penalties it is not necessary to commit all the thirty-nine transgressions (as the one general, all-embracing prohibition of about might have seemed to imply). The mention of one prohibition (kindling of fire) separately breaks up, so to speak, (divides), all the others into single units, indicating that, as in its own case, so in that of all the others first mentioned together with it, every single transgression involves the penalty of stoning, kareth, or a sin-offering.
14. Lit., 'went out'.
15. V. p. 24, n. 12.
16. Who asked, supra, 'wherefore was it stated?'
17. Ex. XXXV, 3.
18. That the prohibition is in force in all 'habitations'.
19. I.e., throughout all habitations.
20. The phrase, 'throughout your habitations', Ex. XXXV, 3.
21. Deut. XXI, 22.
22. The Sabbath.
23. Ex. XXXI, 14 which prohibits all kinds of labour on the Sabbath.
24. Lit., 'or it is not but'.
25. The prohibition of labour.
26. Lit., 'or it is not but'.
27. Ex. XXXV, 3.
28. Num. XXXV, 29, referring to the death penalties of murderers.
29. I.e., execute no death penalty of burning on the Sabbath. The death penalty of 'burning' was executed by pouring molten lead through the condemned man's mouth into his body, thus burning his internal organs.
30. Lit., 'what, (is it) not?'
31. Of death or kareth. V. supra p. 25, n. 1.
32. Why the death penalty of burning — a kind of work — which according to R. Nathan would involve kareth must not be executed on the Sabbath.
33. Though the penalties involved include that of kareth. Thus it follows that a positive precept may supersede even such a prohibition. So also in the case of the levirate marriage it might have been assumed that the precept of marrying one's deceased childless brother's widow supersedes the prohibition of marrying a consanguineous relative despite the fact that such a transgression involves elsewhere the penalty of kareth; hence it was necessary for Scripture to add, ''aleha' (Lev. XVIII, 18), to indicate that even a levirate marriage is in such a case forbidden. (V. supra 3b and 5b).
34. V. supra p. 24, n. 12.
35. The death penalty of burning.
36. Cf. supra note 4.
37. Lit., 'what (difference is it) to me', Shab. 106a. The dyes were boiled in connection with the construction of the Tabernacle that was made by Moses, and any kind of labour that was there performed is included among the thirty-nine principal kinds of labour which are forbidden on the Sabbath (v. Shab. 73a) and involve the penalty of kareth. Cf. supra p. 26, n. 8.
38. Who deduced from Scriptural texts that a judicial death sentence may not be executed on the Sabbath.
39. The assumption that the execution of a judicial death sentence might supersede the Sabbath.
40. The Sabbath.
41. Ex. XXXI, 14.