UPDATE Brachos that are Mi'de'oraysa

I received the following email comment on the last piece, and I think it's very worth seeing in its entirety, other than changing a name to initials.  If you will look at the aforementioned post,  you will see how Reb Meir Simcha deals with the question.

(Letter begins:)I submitted this question to the Kollel Iyun Hadaf back when we were learning Brachos and received this reply.

--------------------------------- Original Message ---------------------------------

Subject: Berachos 35: Basis for berachos From: "Mordecai Kornfeld" Date: Mon, May 16, 2005 11:27 am To: "G S" ------------------------------------------------------------------------------------ (Please include header and footer when redistributing this material.) _________________________________________________________________ THE DAFYOMI DISCUSSION LIST brought to you by Kollel Iyun Hadaf of Yerushalayim Rosh Kollel: Rabbi Mordecai Kornfeld daf@dafyomi.co.il ________________________________________________________________ Berachos 35: Basis for berachos

G S asked:
Tosfos concludes that bracha rishona is an asmachta (ie d'rabanon). However, why wouldn't we say its doraisa? The gemara concludes that bircas hanehenin are derived from a sevara and we see elsewhere that the gemara considers a sevara as even a stronger reason than a drasha
G S, chicago IL ----------------------------------------------

The Kollel replies:
An excellent question, one, to be honest, that has bothered me for ages. Incidentally, Tosfos merely concludes that the Pasuk first quoted is an Asmachta, not The B'rachah Rishonah, which could be d'Oraysa, if not for the Gemara in 'Mi she'Meiso', which considers it de'Rabbanan. The Rashba, commenting on the S'vara 'Asur le'Adam ... ', connects it with the Pasuk cited shortly "la'Hashem ha'Aretz u'Melo'ah". If the land belongs to Hashem, he explains, how can one possibly benefit from it without permission? Were it not for this Pasuk, we would presumably have thought that, having created the world for our benefit, it is now ours to do with as we please, and no B'rachah is necessary (interestingly enough, Chazal do say, with regard to Torah, that Hashem gave it to us in its entirety). Now the Pasuk under discussion is in Tehilim, and not in the Torah. Consequently, even though the B'rachah Rishonah is a S'vara, it can only be mi'de'Rabbanan, since the S'vara's source is a Pasuk in Nach.
R. E C
(Letter ends.)


I would like to point out that the common assumption that only Bracha Achrona on bread and Bracha Rishona on Torah are De'oraysa is not correct. 

First, there's Kiddush.  Yes, I know Reb Akiva Eiger in OC 271 says that you're yotzei Kiddush Mi'deoraysa when you tell someone Good Shabbos. I don't care. The point is that the whole nusach of Kiddush is De'oraysa when you say it at the proper time, and part of it is a bracha.. 
Second, there are Rishonim that hold that Bracha Rishona on all mitzvos is De'oraysa, based on the passuk in Vidui Ma'asros "Velo shachachti," as Rashi there says, "Lo shachachti milevareche'cha," which means that some kind of acknowledgment of gratitude to Hashem for giving us the opportunity to do mitzvos is a chiyuv De'oraysa. (see note.)
Third, see the Gemara in Brachos there on 48b where Reb Nassan brings the passuk in Shmuel 1:9 that says that they did not eat the Korban before a Bracha was made.  Rashi there DH Ki says that the Bracha was asher kidshanu... le'echol es hazevach.  The Maharsa there argues, because we're looking for Birkas HaNehenin, and that's a Birkas Hamitzvos.  So he says it's the She'hakol, in which case it's not an example of a Bracha Deoraysa. 
Fourth, see the Teshuvos Ri Migash in the next paragraph, who says that She'Hechiyanu is De'oraysa. 

Mar'ei makomos for Birkos Hamitzvos being De'oraysa: Rashi in Ki Savo, Devarim 26:13, and in Brochos 40b, says that "lo avarti...lo shachachti....refers to the birkas hafrasha. Tosfos Yomtov in Bikkurim 5:11, says that the whole Gemora is just an asmachta and the bracha is for sure not De'oraysa. The Tzlach in Brochos 40 brings the TYT, and argues. The Satmerer in his Vayo’el Moshe here says the same thing without bringing the Tzlach. R’ Akiva Eiger in Brochos 15 agrees with the Tzlach, but points out that the Tzlach means that the chiyuv De’oraysa to be meshabei’ach for the mitzvah is after doing the mitzvah, not before. The Shai LaTorah in Ki Savo brings the Griz and R Dovid Soloveitchik that the Gemora in Brochos is mashma that it’s a normal brochoh. The Rogotchover there brings and explains a Sifri and a Yerushalmi on this matter. The Shem Mishmuel brings from his father that he saw a Teshuvas Ri Migash that the bracha Rashi is referring to is She'hechiyanu, and that is a de'oraysa.

(I came across this from Rav Yosef Gavriel Bechoffer:  Maybe someday I'll work it into this discussion, but at least it's here.

Shehechiyanu: When D'Orysa Does Not Mean D'Orysa — Eruvin 40b


תלמוד בבלי מסכת עירובין דף מ/ב

והלכתא אומר זמן בראש השנה וביום הכפורים


Teshuvos Ri MiGash (§203) writes that the recitation of the berachah of Shehechiyanu on Rosh HaShanah and Yom Kippur is only D'Rabbanan — but that on Sukkos it is D'orysa!


R' Yosef Engel (Gilyonei HaShas here) notes that this clearly cannot be taken literally. The only berachah which may be D'Orysa is Birchas HaTorah. Rather, states R' Yosef Engel, Ri MiGash must mean that the Shehechiyanu of Rosh HaShanah and Yom Kippur is optional; while the Shehechiyanu of Sukkos is obligatory — but, ultimately, both are D'Rabbanan. Other instances of such usage, cited by Gilyonei HaShas, are in Teshuvos Ri MiGash §89; Teshuvos Tashbetz 2:182.


Nevertheless, writes R' Yosef Engel, even taken non-literally, Ri MiGash's ruling seems at odds with our sugya, which seems to conclude that the Shehechiyanu of Rosh HaShanah and Yom Kippur is obligatory. In resolution of this contradiction, he cites Tanya Rabasi, Hil. Rosh HaShanah §73 (in the name of Yerushalmi) that the Shehechiyanu of Kiddush is D'Rabbanan while the Shehechiyanu of Shofar is D'Orysa. Similarly, Maharil, Hil. Rosh HaShanah, writes that the Shehechiyanu of Kiddush does not cover the Shehechiyanu of Shofar because Kiddush is D'Rabbanan while Shofar is D'Orysa.



But, asks R' Yosef Engel, why do we not recite Shehechiyanu on Rosh Chodesh? Perhaps, he suggests, Kiddush Levanah is in lieu of Shehechiyanu.)

If so, then, it is possible that the Svara of Bracha Rishona does entail a Chiyuv De'oraysa, but not for specifically a nusach of Bracha, just some statement of gratitude, some expression of hakaras hatov.


Anyway, after writing this, Reb Chaim B  sent me an excellent mareh makom to the Pnei Yehoshua in Brachos in the beginning of Keitzad Mevorchim.

Towards the beginning of the perek, the Pnei Yehoshua d'h Ella Svara, says a pshat in the Gemara that will have your eyebrows bumping up against your hairline. You have to see it inside, but in short, this is what he says:

1. He, too, says that he was always perplexed by the Gemara saying bracha rishona is a svara, and then saying it's only a derabanan and the passuk is an asmachta. All over Shas, Svara means de'oraysa. He asks exactly the kashe G S asked, in fact, even with the same tone.

2. He says that it is possible that what the Gemara, and Tosfos, mean, is that yes, the svara makes it a de'oraysa, but the PASSUK is only an asmachta.

3. If so, he asks, why do we hold that safek bracha rishona le'hakeil? He answers, because of the counterfactor of bracha she'eina tzricha or birchas shav.

4. Why, he then asks, does a ba'al keri not make bracha rishona? Doesn't the Gemara say that if it were De'oraysa, the chiyuv Bracha would be docheh the ba'al keri problem?

5. He answers that yes, it's de'oraysa, but it's not de'oraysa. It is the equivalent of a de'oraysa, but it stems from svara, not a passuk. So the same way it's de'oraysa based on svara, the idea that a ba'al keri should not make a bracha is also a svara. It is a svara of Ke'vod Hashem that he shouldn't be making brachos. So svara B outweighs svara A. This would not be the case if it were a passuk-based de'oraysa; a svara would never outweigh a din that is derived from a passuk, contrary to what a lot of people like to tell themselves and their temple-goers.

5. A person who doesn't make the bracha rishona, but who says a bracha achrona, is also not guilty of being ne'heneh from olam hazeh without a bracha.

Here's the Pnei Yehoshua:

 משמע מלשון כל הפוסקים דלפום הך מסקנא דהכא כל ברכת הנהנין הן מדרבנן לבר מברכת המזון לחוד ולרשב״א ברכת ז׳ מינין דלאחריו נמי מדאורייתא אבל בשאר ברכות מודה ולענ״ד יש לתמוה דהא בכל הש״ס משמע דמידי דאתיא מסברא הוי מדאורייתא ואדרבה מקשה הש״ס הא למה לי קרא סברא וכו׳ מיהו נראה לענ״ד דאפילו את״ל דסברא זו הוי נמי מדאורייתא אפ״ה אתי שפיר הא דקיי״ל דספק ברכות להקל משום דלא שייך להחמיר דכיון דאסור לברך ברכה שאינה צריכה משו״ה ממילא אזלה לה הך סברא ומהאי טעמא גופא נמי א״ש דבעל קרי על המזון אינו מברך לפניו דכיון דלא מחייב אלא מסברא והוא מונע עצמו משום כבוד דשם אינו שייך הך סברא 

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On the topic of De'oraysas that are not exactly like other De'oraysasas, this is also worth knowing:

 Reb Meir Simcha in the Rambam Hilchos Mamrim asks the following question.  The Rambam defines one of the cases of Bal Tosif as one who presents a din Derabanan as if it were a De’oraysa.  He asks, if so, how do we understand the numerous drashos in the Sifri and the Toras Kohanim that are presented as De’oraysos and are really asmachtos?  And what about the many Gemaros that discuss drashos as if they were De’oraysa, and ask many kashes, and end up saying “ello Derabanan ukro asmachto be’almo.”  This indicates that the din was passed off as a De’oraysa until it was demonstrated that it was only a Derabanan!  This should be Bal Tosif!  (I would think that the answer is that when the drosho was given, it was stated that it was Derabanan, like the Ritva in Eiruvin, and that caveat was forgotten.  But RMS apparently holds that this is not mistavra, because if it were presented as a Derabanan, what was the point of hanging it on a drosho, if not to scare people into believing it was really a De’oraysa.)  So he answers with a remarkable chiddush: there are two kinds of drashos.  One is gufei Torah, and one is a drasha gemura, but it’s not as chamur as gufei Torah.  To claim that a drasha is gufei Torah is Bal Tosif.  To claim that a drasha is a drasha gemura but not gufei Torah, even if you say that it is a De’oraysa and it’s really not, is not Bal Tosif.

 It seems to me that Rashi in Yevomos towards the beginning of Ha’isha, on 90b, addresses this in the context of the afke’inhu rabbanan le’kiddushin minei sugya, and Rashi says it is 100% wrong, and there is no difference between a be’feirushe passuk and a drasha like kiddushei kesef.

 See also the Brisker Rov in Megillas Esther where he explains why Ploni was worried that a later beis din could overturn the ruling that was mattir Rus and his children would be passeled.  He says that even a drosho of the yud gimmel middos can be overturned by a later beis din.  He brings that the Rambam in Mamrim 1:4 says that the double loshon in Lo Sasur of mishaot asher yomru and davar asher yagidu refer to drashos based on yud gimmel middos and kabbalah ish mipi ish, and the difference is that the former can be overturned while the latter cannot.