The recent Daf Yomi (Menachot 41a) contains a passage that is startling in its implications. An angel finds Rav Ketina wearing a linen cloak — a garment technically exempt from the requirement of tzitzit. The angel’s rebuke is pointed: “Ketina, Ketina — in the summer you wear a linen cloak and in the winter a sarbel (which has two corners); what will become of the mitzvah of tzitzit?” Rav Ketina pushes back: “Do you punish for failure to fulfill a positive commandment?” The angel’s reply: “At a time of divine anger — yes.”

The Talmud then characterizes what Rav Ketina had done as “tatzdeki”, seeking ploys to exempt oneself from the mitzvah, and this is apparently what earned him criticism from the angel.

The significance of this passage extends well beyond the obligation of tzitzit, conveying the fundamental principles of religious duty regarding the attitude a Jew should have toward the mitzvot of the Torah, and the limits of using technically permissible means to escape their reach.

## Positive Commandments and Prohibitions

R. Hershel Schachter (B’ikvei HaTzon, 15:1), based on a comment of Tosafot (Bekhorot 3b), notes that the sources indicate a critical distinction: if the law at hand is a positive commandment, it is wrong to implement a ha’aramah (in this context a legal maneuver or stratagem, for a serious lack of a better definition) to escape it. When a negative commandment is involved, by contrast, there is no equivalent objection to avoiding its application. (R. Schachter also considers possible distinctions within the category of positive commandments — such as avoiding a commandment before it officially takes effect, or distinguishing between an action that effects permissibility through its performance, a matir, and an actual imperative with inherent value; see also the discussion in Sha’arei Osher: Shiurim B’Aggadot Chazal, #50.) The rationale is apparent: a positive mitzvah represents an active obligation, and it would be wrong to attempt to escape that responsibility. In the case of a prohibition, if it is simply rendered inapplicable, nothing is lost. But a positive commandment is a statement that the Divine will is for the act to be performed. Technical exemption does not erase that underlying reality.

The fervent prayers offered by Moses at the end of his life, begging for a repeal of God’s decree not to allow him to enter the Land of Israel, are easily understandable on an emotional level. Nonetheless, the Talmud (Sotah 14a) provides an explanation that speaks to an additional element. Many of the mitzvot can only be performed in the Land. Moses would not have the opportunity to become obligated in these mitzvot. This exemption provided him with no relief; he desperately wanted, and pleaded, to become commanded by these precepts and to realize their fulfillment.

The attitude goes to a fundamental principle of religious duty, and is reflected in this passage, as the commandment of tzitzit is mandatory only for a garment that is both four-cornered and made out of certain materials. Accordingly, one can easily choose not to wear such a garment, and thus escape any obligation of tzitzit. Nonetheless, the implication of this passage is that it is wrong to maneuver oneself into an exemption through strategic ploys (tatzdeki), and furthermore, at times of Divine anger, there may even be punishment in store for one who does so. (Compare also Mishneh Torah, Melakhim 5:9.)

The Maharsha suggests that the punishment “in a time of anger” is connected to the responsibility of those particularly righteous to take on extra commitments to acquire merit on behalf of the generation — which shifts the focus of the Talmudic statement somewhat. (Alternatively, it is possible that the mitzvah of tzitzit is uniquely valuable in that it is intended to serve as a reminder for all other mitzvot; see Mo’adim U’Zmannim, III, 267, who makes this point and explains that this is why there is no encouragement to put on multiple garments in order to fulfill the mitzvah of tzitzit many times — one fulfillment is sufficient.)

Rabbenu Yonah (Sha’arei Teshuvah 3:22) explains that punishment is warranted for this individual who “did not desire in his heart the beauty of the mitzvah and its reward.” Indeed, some sources indicate that one who is not obligated in a specific commandment should seek to place themselves in its orbit, if possible (see Tosafot, Pesachim 113b, s.v. v’ein; Mekor Chaim 331; for different views, Resp. Radbaz I, 61, and Resp. Maharsham I, 209; see also Shiurei Leil Shishi III, pp. 456-459, and R. Daniel Rapp in Beit Yitzchak XXVIII, p. 408ff.; Resp. B’Tzel HaChokhmah VI, 127, considers at length the question of what preparatory steps are expected so that one who is obligated in a commandment does not become exempt due to lack of necessary resources). Specifically regarding tzitzit, Maimonides (Hil. Tzitzit 3:11) writes that one should always strive to wear a garment that requires tzitzit in order to fulfill the mitzvah, and the Rosh (Tosfei HaRosh, Niddah 61b) asserts that a Heaven-fearing individual will not wear a garment with fewer than four corners so as to escape this mitzvah.

It is noteworthy that, in reference to the Divine punishment in times of anger, there are some who distinguish between those who employ devices to exempt themselves from an obligation, and those who simply do not exert efforts to become obligated (see Tosafot, Arakhin 2a, s.v. hakol chayavin). This may depend on the explanation for the punishment; it would seem that Rabbenu Yonah’s explanation does not support such a distinction (nor does that of the Maharsha, although it begins with a more limited application). Nonetheless, the distinction is logical in light of the general principle that punishments correlate to sins of commission, and thus it is the evasive technique that earns the consequence, even if the underlying attitudes are reflected in the passive sins of omission as well. The assumption that only actions earn punishments is itself what is brought up in the original Talmudic passage; according to this distinction, the conclusion would seem to be that absolute passivity indeed would not earn a punishment.

Regarding the parameters of activity and passivity in this area, a responsum of R. Yosef Chaim of Baghdad (Resp. Rav Poalim, YD 5) is instructive. He considers the situation of a Jew who owns two animals of comparable size and worth in partnership with a non-Jew, and has the opportunity to divide the property as he wishes. If he maintains partial ownership in both, he will be exempt from the priestly gifts; if he chooses complete ownership in one animal, he will be obligated to offer the gifts from that animal. R. Yosef Chaim is certain he is obligated to choose the second option.

What is expressed here is the premise that a technical commandment is a formality that conveys the fact that the Divine will is that the act be performed. One may escape the reach of the obligation, but that does not erase the fact of the Divine will. Any sincere servant of God will certainly be as committed to fulfill that will, despite the ability to avoid formal obligation.

Traveling on Sukkot

R. Moshe Feinstein applies this attitude sharply in a responsum (Resp. Iggerot Moshe, OC III, 93; EH IV, 32:8) regarding the mitzvah of eating in the Sukkah on the festival of Sukkot, which does not apply to one who is traveling. R. Feinstein maintains that the trip must be a necessary one, for example, a pressing business need. Otherwise, one is subject to the above condemnation regarding tzitzit, in choosing to avoid the fulfillment of a mitzvah. (See also the comments of R. Feinstein in Darash Moshe, Deut. 4:41, which may be relevant to this position.)

Similarly, R. Aharon Lichtenstein, in an analysis of the permissibility of a recreational trip on Sukkot when accessibility to a sukkah is not guaranteed (Minchat Aviv, pp. 582-584; reprinted in Batei Yosef: Elul Tishrei, pp. 395-397), permits the trip on technical grounds but is harshly critical on philosophical grounds, arguing that the willingness to leave behind the mitzvah of sukkah, even more so than that of tzitzit which is available throughout the year, displays a lamentable spiritual deficiency.

Notably, R. Yosef Shalom Elyashiv (He’arot B’Massekhet Sukkah, 26a, s.v. holkhei derakhim) disagreed with this ruling, observing that in the passage regarding tzitzit, the individual will not fulfill that commandment at all. The situation regarding sukkah is not comparable; that individual displays his connection to the commandment throughout the rest of the festival. It is only temporarily that he is placing himself outside that context. This position is also instructive as to the scope and the basis for the Talmud’s condemnation.

Challah and Ma’asrot

It seems also to be the case that an actual prohibition to evade a positive obligation is codified in the halachah. The Talmud Yerushalmi (Challah 3:1; see also Bavli, Pesachim 48a-b) records a prohibition to make challah in small portions less than the measurements that would trigger the obligation of challah separation. This is termed a ha’aramah, and the rule is codified as practical halachah (see Pnei Moshe to Challah; Mishneh Torah Hil. Bikkurim 6:16; Tur, YD 324; however, there are some who see this rule as founded in a technical concern not applicable to broader mitzvah considerations; see Ohalei Ya’akov III, p. 253).

The Rashba (Piskei Challah, cited in Beit Yosef to Tur) characterizes this as intended to prevent “the forgetting of the Torah of challah.” The Prishah (ibid., #25) does note that this is not a blanket ban on making smaller loaves, but is only addressed to those who would do so intentionally to escape the mitzvah. (Similarly, R. Chaim Kanievsky, Derekh Emunah, Bikkurim ch. 6, #129-130, lists a number of legitimate reasons to make smaller loaves that would not run afoul of this prohibition.)

Further, in the context of ma’asrot (tithes), there is also a specific rabbinic enactment to prevent the evasion of this commandment through the transfer of property to a non-Jew (Menachot 67a-b; Mishneh Torah Hil. Terumot 1:13; see also R. Naftali Hertz Landau, Cheker Halakhah II, ot chet, 21). By Torah law, grain that has been smoothed (meruach) by a non-Jewish owner is exempt from that mandate. However, the Rabbis decreed otherwise, concerned that wealthy people (ba’alei kisin) would temporarily sell their grain to a non-Jew so as to prevent the application of the mitzvah.

The Talmudic discussion that surrounds this enactment is illuminating. It would have made sense, seemingly, for such an enactment to be applied also to the commandment of challah, in which non-Jewish ownership also theoretically exempts, and the temptation of evasion is also present. However, the decision was that a parallel enactment in that case would be ineffectual, because challah can be evaded more easily than that, by simply preparing in quantities beneath the threshold for obligation.

It is then noted that there also exists a simpler evasion for ma’asrot: bringing the produce in through a side entrance, which prevents the obligation from taking effect. The explanation is then given that there is less of a concern that such a method will be employed, as it takes place in public, and the owner would be embarrassed to be seen engaging in such a subterfuge. These arguments serve to illuminate the moral and psychological contours involved in escaping an obligation, and the considerations of the Rabbis in preventing such behavior. (See Derekh Emunah, ibid, in Biur Halakhah to 6:16, s.v. assur l’adam.)

The impression created is that while an automatic prohibition on any one evasive act may not exist, the Rabbis were concerned that such behavior not become widespread and come to define the religious observance of the populace, either regarding specific mitzvot or religious obligations in general. Accordingly, they enacted prohibitions on behaviors that posed a greater risk of having a broader effect, while not passing judgment on discrete instances that are less likely to impact practices in general.

However, there are additional elements that make a consistent theory more complex. Rashi (Menachot 67b, s.v. efshar) explains the aforementioned distinction between ma’aser, where an enactment was made, and challah, where it was not, differently than stated above. The alternative option of making smaller batches of challah is, in his words, not only easier, but “permitted.” If the rabbinic prohibition is to prevent evasive maneuvers, it is unclear why this should be different, in Rashi’s language — l’irumei b’heteira, “to commit a permissible ha’aramah.”

The Chatam Sofer (Resp. OC 62) understood that the enactment regarding ma’aser was specifically because it required a transfer of ownership, with the concern that the non-Jew would have no intent to actually take possession. The issue was not only evasive action, it was ineffective evasive action. (The Chatam Sofer explains the difference between this situation and the sales of chametz and bekhor, which he believes are effective.)

A Torah Prohibition?

While the possibility of a rabbinic enactment forbidding evasive behavior is highly significant, even more striking is a statement of Rashi that seems to locate this prohibition in the text of the Torah itself. Regarding the obligation to stand for a learned elder, the Torah (Lev. 19:32) concludes with the words, “and you shall fear your God, I am Hashem.” In explaining that phrase, the Talmud (Kiddushin 32b-33a) teaches that the intent is to address one who would close his eyes so as not to see the elder approaching. Rashi interprets the admonition: “you should have feared the Creator, who knows your thoughts, that you are seeking strategies to become exempt from His commandments.” A prohibition to this effect is recorded in Shulchan Aruch (YD 244:3).

Still, the scope of such a Scriptural condemnation requires clarification. The Tosafists (Moshav Zekenim, Lev. 19:32), noting an apparently more permissive attitude to evasive tactics in other areas, suggest that standing before elders, as a component of the honor shown to the Torah, is subject to unusual reinforcement. As R. Yosef Shaul Nathanson (Resp. Sho’el U’Meishiv, telita’ah I, 120) states in greater detail, this commandment is specifically centered on increasing the love one has for the Torah and its scholars, and accordingly, actively embracing the opportunity is a part of its directive.

R. Ya’akov Elyah Undsdorfer (Ohalei Ya’akov III, pp. 240-241) analyzes this position, and suggests that the same logic would apply to the mitzvah to show honor to a kohen, such that one would not be allowed to ask a kohen to leave the room during the reading of the Torah in order to allow a non-kohen to receive the first aliyah — however, one could distinguish between the two and suggest that the honor to the Torah involved in standing for the learned elder is a more demanding obligation in that it connects to the entire value system, while the honor shown to the kohen is of a narrower focus. (See also Ohalei Ya’akov there for several other approaches from the later literature; see also Pardes Yosef, Ex. 34:24 #138, and his citation of authorities who distinguish between positive obligations that are inherently incumbent upon Jews in general, and those that would only become applicable under specific circumstances.)

Others suggest that the avoidance involved in closing one’s eyes to the approach of the elder earns particular condemnation because it is by its nature artificial. In contrast with other cases where an obligation is genuinely prevented from materializing, in the case of standing in respect the situation demanding the respect is actually in effect; the shutting of the eyes does not change that, just creates a weak justification for the individual to claim he is not fully aware. The “exemption” is superficial and completely technical at best, and may not reflect on other more genuine exclusions from a mitzvah obligation. (See Resp. B’Tzel HaChokhmah, ibid, and see also Resp. L’Horot Natan, V, 58, 12, and in general see his wider discussion on evading obligations in ibid., 56-61, and in particular the sources cited in 60:25.)

Another possible indication of a prohibition to remove oneself from a mitzvah obligation can be found in a statement of the Talmud (Bava Batra 91a) forbidding one from leaving the land of Israel except under extreme circumstances. While there are a number of explanations given for this, the Rashbam (s.v. ein yotz’in) understands the concern to be that one is thereby exempting himself from the agriculturally based commandments.

Evading the Obligation of Bekhor

Further illumination on this subject comes from one instance of a “sale approach” that is addressed in the Talmud itself. One who owns an animal that is pregnant with a first-born offspring is faced with the possibility of owning an animal imbued with kedushat bekhor. However, in the modern era, with no functional Temple or active Priesthood, there is no viable way to properly handle the situation. Accordingly, the Talmud (Bekhorot 3a-b) discusses the partial sale of the mother animal to a non-Jew, which would prevent the sanctity from taking effect.

It is related there that R. Mari bar Rachel attempted this, selling the ears of his cows to non-Jews. Even so, he acted stringently, treating the offspring as if they had sanctity. Nonetheless, the Talmud indicates there was something inappropriate about what he did, and it did not end well. Two explanations are offered as to what the offense was, especially given his stringent treatment of the animals.

The first answer addresses the spiritual impact of what he did. Even though his conduct was just as exacting as it would have been regardless, he still removed these animals from a status of sanctity. The second answer addresses a secondary practical impact. Even though he was knowledgeable and able to properly address all aspects of the situation, a less knowledgeable individual may witness his actions, attempt to do the same, and fail to execute it properly. (See Bekhorot 13a.)

The Will of the Torah

While the specific parameters may be debated, a clear principle certainly emerges, establishing the value of the positive mitzvot of the Torah, even when escape from obligation is possible, and even when that obligation has not yet materialized. This desire to fulfill the will of God, with or without formal command, is what characterized the forefathers, who devoted themselves to God before the Torah was given and, according to the Talmud (Yoma 28a), fulfilled the principles of the Torah they had intuited through their own philosophical insight. (See Resp. Rashba I, 94.) Notably, the Maharal of Prague (Gur Aryeh, Gen. 46:10) assumed this initiative was limited to what would be the positive commandments of the Torah, as it was specifically these that represented inherently valuable acts, even prior to formal command. Likewise, these actions continue to have inherent value, and to seek an escape from them is frowned upon.

R. Asher Weiss, in his responsum on the subject (Minchat Asher II, 45), ultimately concludes with a similar distinction. He asserts that a ha’aramah to avoid a positive obligation is not subject to an actual prohibition, but is instead a general shirking of religious commitment and against the “will of the Torah.” In his formulation, avoiding a prohibition, while less objectionable, is not completely neutral; it should only be done in response to some kind of need.

The angel’s accusatory question to Rav Ketina thus is a challenge, conveying the recognition that formal obligation is a floor, not a ceiling. The utilization of ploys and strategies does not just circumvent a rule, it makes a statement about what one values. Moses, by contrast, and great men who followed him, made their own statements about what they value. These statements come across loud and clear, and it matters.