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 Shabbat Parashat Korach| 5765Moreshet ShaulFrom the works of Hagaon Harav Shaul Yisraeli zt”l - Preserving Kilayim (Mixed Species) - Part II - Condensed from Eretz Hemdah, vol. II, 5: 5,6
[We saw last time that there is a machloket between R. Akiva and Rabbanan whether there is a full Torah prohibition to preserve kilayim in one’s field (R. Akiva) or not.]
When one preserves kilayim in his field through an action that doesn’t directly touch the kilayim itself, like making a fence around them, he is subject to malkot (lashing) according to R. Akiva. The Sha’ar Hamelech claims that in the case of preserving through an action, Rabbanan agree that there is a Torah prohibition, and differs only by saying that there is no malkot.
Let us examine the gemara in Avoda Zara (64a). The gemara asked if one is allowed to destroy idolatry for money, as on one hand he is benefiting from the existence of the idolatry and on the other hand he is destroying it. The gemara tries to bring a proof from a baraita that states that one may not help a non-Jew take care of the non-Jew’s field of kilayim, but he is allowed to help a non-Jew uproot kilayim from his field. The gemara assumes that the baraita follows R. Akiva’s opinion, that he may not be involved in preserving kilayim, and thus the case is parallel to one of working to remove idolatry. The gemara deflects the proof, saying that the baraita follows Rabbanan, but then asks that if it followed Rabbanan, it would not be understood why he could not help the non-Jew preserve the kilayim.
It seems clear, then, that according to Rabbanan, there is no Torah prohibition to act indirectly to preserve kilayim. The Yerushalmi (Kilayim 8) says that Rabbanan agree that there is a rabbinic prohibition to act to preserve kilayim. Although the aforementioned gemara seems to contradict that possibility as well, one can deflect that claim. The gemara in Avoda Zara is talking about the field of a non-Jew. It is possible that the rabbinic prohibition applies only in a Jew’s field, with the logic being as follows. The logic of the prohibition is that we do not want grounds for suspicion that the one who is preserving the kilayim also planted them, which is forbidden according to everyone (see Tosafot, Bava Kamma 81a). However, if the field belongs to a non-Jew, people will assume that the owner of the field was the one who planted the kilayim.
Tosafot (Avoda Zara 74a) says that even according to R. Akiva, there are malkot only if the violator does an action, because we have a rule that one does not get malkot for a violation that does not have an action. Usually, that rule talks about an exemption from malkot alone, but otherwise, it is a full Torah violation. However, the Chatam Sofer infers from Tosafot that when there is no action, R. Akiva agrees that there is not even a full Torah prohibition. The Chazon Ish explains that since Tosafot is referring to a case where a non-Jew owns the field, when there is no action and the problem is preserving the kilayim, the prohibition applies only to the field’s owner. The Chatam Sofer, though, says that even by a Jew’s field, it may be necessary that an action be done in order for preserving to be included in the extension of the Torah’s prohibition of kilayim beyond sowing. This is because the pasuk connects the word “kilayim” from the context of cross-breeding of animals to that of vegetation [see source for particulars].
[After asking on the Chatam Sofer’s derivation], one can say as follows. There are two possibilities to understand R. Akiva’s prohibition of preserving (“m’kayem”). One possibility is that anything other than uprooting the kilayim is a form of preserving. The other is that an active preservation effort is that which is forbidden. Tosafot says that R. Akiva, who talked not just of violation but of malkot, must be talking about an active type of prohibition, for otherwise there would be no malkot. Once we know that this is the nature of the prohibition, we no longer have a source for a non-active prohibition.
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