Sukkah 25b

As you are disembarking from an El Al flight, you notice that the friendly neighbor who sat next to you has left the plane and forgotten his bag under his seat. You pick it up and run after him. But you are blocked by nine gentlemen who beg you to complete a minyan for Mincha. Does your friend lose his bag or do the gentlemen lose their minyan? The next morning while praying in the synagogue you are approached by a poor man who solicits a donation. Do you disregard the mitzvah of charity because you are busy praying? You are carrying your father’s heavy suitcase as an old lady, hunched over with shopping bags, shuffles by. Do you have to carry her bags too?

The answer to all these questions depends upon the interpretation of the Talmudic dictum “Ha’osek bamitzvah patur min hamitzvah,” which means if you are busy performing a mitzvah you are exempt from performing another mitzvah.

Does the osek bamitzvah exemption apply only in circumstances where it is impossible to perform both, as in the lost bag/lost minyan/ Impossible Case? Does it also apply where it is easy to perform both as in the “I’m praying, don’t bother me”/Easy Case? Does it apply where it is difficult, yet still possible to perform both, as in the suitcase/shopping bag/ Difficult Case?

According to Tosafot and the Rosh, the osek bamitzvah exemption applies only in the Impossible Case. Clearly, argue Tosafot, one is not exempt from mitzvot just because one wears tzitzit all day or because one is warehousing somebody’s lost property.

According to Rashi, the osek bamitzvah exemption also applies in the Easy Case. Accordingly, a person traveling by day on Sukkot to perform the mitzvah of visiting his rabbi is, according to Rashi, exempt from the mitzvah of eating and sleeping in the sukkah when he sojourns at night.

According to the Ran, the osek bamitzvah exemption does not apply in the Easy Case but does apply both in the Impossible Case and in the Difficult Case. The Ran cites several proofs for the application of the osek bamitzvah exemption in the Difficult Case as follows. In Talmud times, a bridegroom was exempt from reciting Kriyat Shema on account of his preoccupation with his wedding night. Similarly, cites the Ran, a person performing the mitzvah of guarding the unburied dead or digging them a grave is exempt from all mitzvot. In all these cases it is possible, although difficult, to recite Kriyat Shema while preoccupied with the first mitzvah. Yet, says the Ran, the exemption applies. In explaining the reason for the application of the osek bamitzvah exemption in the Impossible Case and the Difficult Case, as opposed to the Easy Case, the Ran points out that the Talmudic dictum is “ha’osek bamitzvah,” one who is busy with a mitzvah, and not “hamekayem mitzvah,” one who is merely fulfilling the mitzvah. The halacha, as expressed by the Rema, adopts the approach of the Ran.

The osek bamitzvah exemption requires one to complete the mitzvah one first started even where the second mitzvah is more important, carries a harsher penalty for non-performance and will be impossible to perform later. Thus, the duty to sacrifice the Korban Pesach, Paschal Lamb, in the Temple was postponed in the event of a death requiring a surviving relative to become tameh and ineligible to enter the Temple. This was the case even though the punishment for unjustifiably ignoring the Korban Peasch is premature death and even though the Korban Pesach is time sensitive. Similarly, a person busy with pressing communal affairs is exempt from reciting Kriyat Shema, even though the Shema contains the credo of every Jew and cannot be recited after a certain hour.

Does the osek bamitzvah exemption apply in a case where the second mitzvah has the independent power to override the first mitzvah? For example, may a mohel who is asked to perform a brit milah on Rosh Hashanah in an outlying district refuse to leave his family on the grounds that he is already busy with the mitzvah of celebrating the holiday with his family? Based on the case of Korban Pesach, the Avne Nezer rules that even though milah is time sensitive and carries a penalty of premature death if ignored, the mohel may refuse. The Minchat Yitzchak is not so sure. After all, he argues, the mitzvah of performing a brit milah on the eighth day overrides Shabbat itself. Certainly, therefore, it should override the mitzvah of oneg Shabbat and the mohel is obliged to go.

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received smichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Rav Dovid Feinstein, zt’’l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to the laws of Shabbat and Festivals in Seder Moed” available for purchase by emailing Raphael at [email protected].