Shiur #17: Sukka 31b-32a

Kitutei Mikhtat Shiurei - The Halakhic View of 'Shiur' in Items Designated to be Burnt

by Rav Moshe Taragin

A.

            The gemara in several locations addresses the halakha known as kitutei mikhtat shiurei.  Translated literally, this halakha is defined as follows: Any item which demands a requisite quantity to be rendered halakhically meaningful, 'looses' that quantity (shiur) when the item in question must be burnt.  For example, if a person chooses a lulav from a tree which has been worshipped as avoda zara (known as an asheira), is subsequently forbidden for use, and must be burnt, he is not yotzei the mitzva.  For a lulav to be valid it must be four tefachim in length.  Even if such a lulav presents the necessary physical dimensions, since the item must be burned "kitutei mikhtat shiurei" (literally – its shiur is cut down) and the item is invalid for the performance of the mitzva (see Sukka 31b).  The same claim is made about a shofar (Rosh Hashana 28) which was taken from an animal which was worshipped as avoda zara and is now forbidden.  This series of articles will explore the nature and application of this halakha.

            Obviously our first step must be to provide some logic or understanding for this halakha.  Why should an item, sufficient in its physical dimension, have those dimensions 'cut-down' simply because the item must be burned?  Rashi in Chullin (89b) and Rosh Hashana (28a) addresses this issue.  He associates this halakha with a well-known statement of R. Shimon's.  The gemara in Menachot (102b) cites the position of R. Shimon who ruled that items slated to be burnt (such as para aduma and notar) are considered as having been ALREADY burnt.  According to R. Shimon "kol ha-omed le-sreifa" (anything slated to be burnt), "ke-saruf dami" (is considered as already burned).  Hence, according to R. Shimon, these items do not receive tum'a since only foodstuffs a beitza in SIZE can receive tum'a.  A beitza of notar is considered as burnt ashes and no longer retains its spatial dimensions.  In other words, according to R. Shimon, halakha allows us in certain instances to view that future as having already occurred.  In fact, the gemara in Menachot considers analogous applications of this principle: the collected blood of a korban even before it has actually been sprinkled, is considered as having been sprinkled (so that any resulting disqualification which occurs is deemed less problematic since 'zerika' had already occurred; an item which is ready to be harvested, is considered as having been reaped even before is has actually been cropped (for purposes of classifying that produce as attached to land or portable).  Evidently, R. Shimon (and many who adopted his opinion) allow for the future to be realized in the present.

            Rashi believes that OUR halakha of "kitutei mikhtat shiurei" is merely a derivative of R. Shimon's.  Anything, which must be burnt, is considered as having already been burned.  Once we envision the burning as having already occurred, the item cannot possibly retain its physical size and is invalid for the performance of the mitzva.

            Similar sentiments seem to be expressed by the Ba'al Ha-ma'or in his commentary to Sukka (17a in the Rif's pages) when he writes that when something is kitutei mikhtat shiurei it is considered 'ke-man de-lesei' as if it no longer exists; evidently, he viewed this halakha in the same way that Rashi did: the designated burning is considered as having already occurred and hence the item is halakhically reduced to a heap of ashes.

            We might suggest an alternate manner of understanding this halakha.  After all, the gemara makes no attempt to associate our halakha with R. Shimon's.  In fact, they are classified differently in terms of they way they are referred to - one is referred to as kitutei mikhtat shiurei while R. Shimon's halakha is referred to as kol ha-omed lehisareif ke-saruf dami.  Generally, when halakhot are referred to in different manners they are not identical (though they might be similar).  In addition, R. Shimon's halakha is not universally accepted.  After all, the Chakhamim reject his principle of visualizing the future as having already occurred.  How might we explain the concept of kitutei mikhtat shiurei according to the Chakhamim?

            This view, that kitutei mikhtat shiurei represents a completely different concept, might be voiced by Tosafot in Sota (25b).  Tosafot claim that even the Chakhamim who reject R. Shimon accept the concept of kitutei mikhtat shiurei in the case of avoda zara.  As opposed to notar or para aduma an item of avoda zara is not just designated to be burned; it is also assur be-hana'a (forbidden) and hence the law of kitutei mikhtat shiurei applies.  Might Tosafot be arguing with Rashi and claiming that kitutei mikhtat is really an independent halakha?  Even though the Chakhamim reject kol ha-omed li-sereifa, they might accept kitutei mikhtat.

            If indeed kitutei mikhtat is a separate halakha we might have to consider its definition. One suggestion is to view the item not as burned but simply as INCONSEQUENTIAL.  We do not envision the future as having already occurred but the very fact that something is designated for burning subverts its significance and renders it similar to something without a shiur.  After all, the purpose of a shiur is to confer significance upon an item.  Less than a kezayit of matza is not a significant mass while more than a kezayit is significant.  Less than 4 tefachim of a lulav is not significant enough a lulav to be used for the mitzva while more than four is chashuv.  Something which is slated to be burned has a limited future and this factor might offset the significance, which the quantity generally confers.  Kitutei mikhtat does not reduce the physical shiur; rather it counteracts and counterbalances the effect of a shiur and renders the object meaningless.

            A clear articulation of this principle can be found in the Ran to Gittin (20a).  The gemara allows writing a get on paper, which is assur be-hana'a.  The Ran questions this halakha based upon the principle of kitutei mikhtat.  The Ran responds that there is no inherent quantity of paper necessary for a 'get.'  The paper must only be large enough to contain the requisite text.  Since the size of the paper is not a question of shiur or significance, the disqualification of kitutei mikhtat cannot apply.  This problem is only relevant when the shiur distinguishes between a significant quantity and an insignificant one (for example 4 tefachim of a lulav).  When the shiur does not characterize the item as significant (but is only necessary to assure a background to the required text) the lack of future in no way affects the item.  Had the Ran understood kitutei mikhtat as Rashi did (we view the item as already burnt) he would not have been able to draw his distinction.  The 'get' would be considered ashes regardless of the role or function which the shiur plays.

            A second position which differentiates between kitutei mikhtat and kol ha-omed lehisareif can be found in the Ra'avia (in his commentary to Chullin chapter 1140).  He poses the following question: Why should orla and kil'ei ha-kerem become impure?  The shiur to receive impurity is a beitza and these items must be burned.  Applying the concept of kitutei mikhtat would render these items shiur-less (just as R. Shimon suggested in the gemara Menachot about notar and para aduma which must be burned and do not receive tum'a due to a lack of the beitza shiur).

            His answer is illuminating.  He claims that kitutei mikhtat does not render the item as non-existent (as Rashi and the Ba'al Ha-ma'or explicitly state).  Rather, the limited future renders the item as 'broken' (in his words broken into little pieces - mukhtot le-chatukhot chatukhot).  Hence, these items cannot be used for a lulav or shofar since these lulav and shofar must maintain a distinct form.  A lulav is not just a mass of palm tree material equaling 4 tefachim in volume - it must have a certain shape and form.  Similarly, a shofar is not merely a certain mass of horn-material but must resemble a shofar.  If the item will be burnt (read: deformed) such shape is meaningless.  However, for food to receive tum'a it does not have to assume a certain form or shape.  Simply a beitza's worth of that food will receive tum'a.  Even if I apply kitutei mikhtat and deform the food the same mass still remains and tum'a is conferred.

            What emerges unmistakably from the Ra'avia is that kitutei mikhtat does not constitute a imaginative burning of the item based upon its future burning.  Had this been so, the halakha would invalidate items even to receive tum'a.  Instead, he viewed the halakha as attacking the shape of the item because the present form is unstable due to its limited future.  If so, the invalidation would only apply in cases in which the form is vital.  Interestingly, the Ra'avia does claim that according to R. Shimon who adopts the kol ha-omed concept (which views the future as having already occurred) we might consider invalidating orla from receiving tum'a if the burning would reduce the volume beneath the beitza level.  He clearly differentiates between kitutei mikhtat which affects shape (and has no relevance where a shape is not necessary) and kol ha-omed which renders a burnt state on the item and might even affect volume or size.

            To be sure, the Ra'avia articulates kitutei mikhtat in a manner which differs slightly with my definition.  I assumed that the limited future stripped the item of the inherent significance which the physical volume conferred.  The Ra'avia suggested that the significance isn't offset but rather the shape is compromised (because it will be so temporary).  However, both approaches separate kitutei mikhtat from kol ha-omed.  In the latter case, according to R. Shimon, we view the item as being completely reduced to ashes.  If so, kitutei mikhtat would apply across the board.  A lulav would be invalid, a parchment could not serve as the backdrop for a 'get' and food would not receive tum'a.  According to the Chakhamim, this never occurs but the VERY PROSPECT of future burning influences the item, its significance or its shape even in the present.  This condition might only be problematic in cases in which the shiur confers significance (as opposed to 'get' in which the shiur is necessary for purely practical reasons) or cases in which the shiur is accompanied by a distinct shape.

B.

            Now let us investigate possible ramifications of this question - cases where the applicability of this principle of kitutei mikhtat might hinge upon the manner in which we understand the halakha of kitutei mikhtat.

            For example: Would kitutei mikhtat extend to items which are forbidden to use but must be buried instead of burnt (for example avoda zara owned by a Jew)?  Tosafot in Yevamot (104a) present two opinions on this matter.  Quite possibly, the debate would revolve around the nature of this halakha.  If kitutei mikhtat reduces the item to ashes because the future burning is visualized in the present, we would not apply the rule to items which are buried.  Burial per se – even if imagined in the present - does not physically reduce or decompose an item as burning does.  If, however, kitutei mikhtat teaches us that lack of future utility effectively undermines the quality of an item, we might extend the rule to any item which must be eliminated - be it through burning or burying.

            To better understand the scope of the halakha we might question the role played by certain shiurim in halakha.  This would help us determine whether kitutei applies to those shiurim.  We already witnessed last week that according to the Ran in Gittin and the Ra'avia, kitutei does not apply to certain shiurim (the size of paper required to write a 'get' and the minimum size of food required to receive tum'a) precisely because kitutei mikhtat is not an imagined burning but rather a subversion of the item's importance.  Some shiurim are not designed to lend importance to an item; in such cases it would be interesting to discover whether kitutei mikhtat applies.

            Possibly the most direct example would be the issue of kitutei mikhtat as it applies to lechi and kora.  To allow carrying on Shabbat within a three-cornered alleyway a person must erect a thin vertical beam (lechi) or construct a horizontal crossbeam (kora) – either of which are placed at the entrance to the alley.  The gemara in Eiruvin (80b) considers using wood of avoda zara for these beams.  It seems as if the gemara is willing to validate a lechi of avoda zara wood but disqualify a kora from the same wood because of kitutei mikhtat (the shiur of a kora being thick enough and wide enough to support a brick).  Why should our rule only apply to kora and not lechi (which also demands a shiur of 10 tefachim in height)?

            This question was first raised by Tosafot and an interesting answer is cited in the name of Rav Avraham.  He explains that even after applying kitutei mikhtat to the lechi, we could still resurrect the beam by reconstructing the pieces (madbik ketitim).  This answer is reminiscent of what we saw last week in the Ra'avia.  Certain shiurim just represent mass while others are accompanied by a certain shape or distinct form.  In the former cases, kitutei does not apply since the mass still remains while in the latter case we cannot maintain the shape and the item is disqualified.  A lechi requires a 10 tefachim's worth of wood (parallel to a beitza's worth of food according to the Ra'avia) and it can still be 'accumulated' after applying kitutei.  A kora, however, is not just a mass of wood but must be a crossbeam; the shiur of this item (solid and wide enough to support a brick) just ensures that the item has the function AS WELL as the form of a crossbeam.  Since more than just material is necessary we apply kitutei mikhtat.  This distinction between shiurim of mere mass and shiurim which define functional items can only be suggested (by the Ra'avia and Tosafot in Eiruvin) assuming that kitutei mikhtat does not physically reduce the item to ashes. Were it not so, even shiurim of mass would be affected since the ashes no longer contain the required volume.

            Another distinction between lechi and kora is suggested by R. Chayim (in his commentary to the Rambam, Hilkhot Shabbat 17:12-13).  R. Chayim claimed that the shiur of 10 tefachim regulating walls on Shabbat should be understood slightly differently from the manner we are accustomed to.  The shiur doesn't define the wall but demarcates the area.  Stated otherwise: a reshut ha-yachid (private domain) on Shabbat does not require four walls.  Rather, the walls are necessary to create a setback area or an area not easily accessible to the public.  This type of area is considered a reshut ha-yachid even in the absence of actual walls.  For example, the gemara in Shabbat (100a) rules that a hill whose incline rises 10 tefachim is considered a reshut ha-yachid even though no walls actually surround it.  This proves that a private domain merely has to be surrounded by a blockade of 10 tefachim which impedes easy access.  Hence, the 10 tefach shiur on Shabbat does not define a wall but defines an enclosed area (only an area enclosed by 10 tefach high blockades is considered 'surrounded' [mukaf]).  A shiur of this nature (which doesn't define the item per se [the wall] but lends a certain identity to the area) cannot be affected by kitutei mikhtat which attacks the importance of the item.  The 10 tefachim are not geared to creating a significant 'wall' and therefore a wall made from avoda zara is unaffected; on a PRACTICAL level the wall still encloses and demarcates the area.  R. Chayim makes a point of claiming that kitutei mikhtat DOES NOT MEAN that the item is considered burnt; if this were true kitutei would apply to every shiur and reduce the wall to ashes rendering the area unenclosed.  According to R. Chayim, the 10 tefach shiur of the lechi is immune to kitutei mikhtat while the shiur of a kora which defines the kora per se (creating a halakhically meaningful crossbeam) is susceptible.

            Another example of a shiur which might not be affected by kitutei mikhtat would be the minimum size of the etrog.  The gemara rules that it must be either as large as an egg or as a walnut.  The Rosh in Sukka (3:15) cites two opinions as to whether kitutei mikhtat would apply.  There is no question that an etrog of avoda zara is invalid.  The only question is: Is it invalid because of kitutei mikhtat or simply because of mitzva ha-ba'a be-aveira (a mitzva which was facilitated by an item of aveira)?  When citing the opinion that kitutei mikhtat does not apply, the Rosh reasons that the shiur of etrog does not revolve inherently around size.  Rather, the size INDICATES that the fruit has reaches a fully ripened state.  The requirement is to use a fully ripened etrog; the size is merely the litmus of this ripening process.  Since the shiur is a LITMUS rather than that which lends significance to the item the rule of kitutei mikhtat does not apply.  Again, the statement of the Rosh can only be accepted in we do not view kitutei mikhtat as already burnt.  If this were the case the etrog would clearly be disqualified.  Evidently, the Rosh as well, developed an independent definition of kitutei mikhtat (which he does not articulate) and this rule only affects shiurim which are inherent rather than indicative of another factor.

            One final example of limiting the halakha to very specific shiurim can be located in a Tosafot in Chullin (140a s.v. Limutei).  Tosafot (according to the Maharsha's explanation) question the validity of sacrificing an animal of avoda zara.  If we apply kitutei mikhtat the simanim (windpipe and foodpipe in the animal's neck) which must be sacrificed through an act of shechita have already been burnt.  R. Akiva Eiger (responsum 165) rejects even the possibility of reading Tosafot this way.  Kitutei mikhtat does not render the item burnt.  It merely offsets the desired effect of the shiur by undermining the object.  In this instance, the shiur (two simanim on the animal's neck) are not required to define a meaningful animal.  Rather the ACT of shechita consists of cutting these two veins.  If these are already cut then a halakhically defined act of shechita has not been performed.  Since the shiur does not define the item but the act which must be performed upon the item, kitutei is rendered irrelevant.  Possibly, the Maharsha understood kitutei mikhtat in the more traditional way – the item is considered already burnt.  If so, then no ACT of shechita can be performed since the veins have already been burnt.

SUMMARY

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            We have witnessed two distinct approaches toward understanding the intriguing halakha of kitutei mikhtat shiurei.  It might be a derivative of R. Shimon's concept of realizing the future as already having arrived in the present (a theory known loosely as kol ha-omed).  Alternatively, we might define it as reducing the shape or significance of the item even in its present state because of its limited future. 

            Understanding kitutei mikhtat as imagined burning would broaden the scope of its application to most shiurim; if the item is burnt it is burnt - period. If, however, kitutei merely diminishes an item's halakhic worth it would apply in fewer cases.  It would not apply to shiurim which are indicative (etrog), shiurim which create a situation in other items (the 10 tefachim of a lechi define the area not the lechi), or shiurim which are merely qualitative (size of paper for 'get,' size of food for tum'a) but are not accompanied by some shape or utility (as is the case for lulav, shofar, the shoe used for chalitza, and kora).

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            The next shiur will focus on the laws governing a removed or split tiyomet (the central leaf of the lulav). Please advance in the Gemara until "na'ase ke-mi she-nitela ha-tiyomet u-pasul" (32a), and see also the parallel passage in Bava Kama 96a: "Amar Rava: Hai man de-gazal lulava ve-avdinhu hutzi… na'ase ke-mi she-nitela u-pasul, shema mina."

1.         What is the case of a split tiyomet? See Rashi on our passage; Tosafot, Bava Kama 96a, s.v. nechleka; Rif on our passage, p. 15a: "Ba'i Rav Pappa… nifretzu ha-alin u-pasul"; Ran, end of p. 14b, s.v. Gemara.

2.         What is the basis of the disqualification, and what are the practical differences between the different understandings? See Tosafot, Bava Kama 96a, s.v. nitela; Ran p. 15a, s.v. nechleka; Magen Avraham, sec. 645, no. 6; Mishna Berura, end of no. 17.

3)         How are we to understand the connection made in the Gemara in Bava Kama between the kinyan by way of the shinui (change) of a split tiyomet and disqualification for the mitzva? See the following Rishonim on the Gemara in Bava Kama:

a) Chiddushei ha-Ra'avad, s.v. ba'i:

If the tiyomet is removed, [the lulav] is unfit. Is it not that the same law applies if it is split? This implies that it has changed and become disqualified. Here too it has changed so that he acquires it.

b) Shita Mekubetzet in the name of the Rama:

Since it is disqualified with respect to the mitzva, even though it is not missing anything, which implies that it is considered like mere leaves – with respect to a thief it also effects a kinyan, for originally it was called lulav whereas now they are mere leaves.

c) Chiddushei Talmid ha-Rashba ve-ha-Rosh, s.v. ba'i:

Since at first it had been fit for the mitzva, and now it is unfit, it is also regarded as a change that effects a kinyan.

d) Piskei Ri'az, introduction to chap. 9 of Bava Kama, no. 9:

If a person stole a lulav that was to be used for the mitzva and the tiyomet split while in his hands, since it became disqualified for its mitzva, it no longer bears the name "lulav," and he acquires it with this change.