Shulchan Aruch in Hilchos Chanukah (OC 677:4) cites a din from the Sheiltos that after Chanukah is over, the leftover oil from your menorah that did not completely burn needs to be gathered together and burned in one big fire. The reason, the Mechaber states, is because that leftover oil is "huktzah l'mitzvaso.” Or, since it was set aside for mitzvah use, it then becomes assur b'hanah (forbidden to benefit from), so the only thing to do with it is to burn it off. Maran then concludes with: "if that leftover Chanukah oil became mixed with regular (non-Chanukah) oil, and there isn't 60 times (shishim) the amount of regular oil to mevatel the leftover Chanukah oil, there are those who say that you cannot add the needed amount of regular oil to mevatel the Chanukah oil."

What Shulchan Aruch presents here in Hilchos Chanukah is a halacha more broadly known as "ein mivatlin issur l'chatchilah" (henceforth: EMIL) or "it is prohibited to purposely negate an issur." In truth, this concept has many more applications when it comes to topics in Yoreh Deah, as the basic premise of it would be, let's say, if some milk accidentally splashed into your small bowl of chulent, and you know you do not have shishim (60x) of heter (chulent, in this case) to mevatel (or negate) the issur (milk, in this case), it would be forbidden to purposely add chulent to your bowl to negate the milk which spilled into it. This is EMIL. And this is the concept Mechaber invokes over here in Orach Chaim with respect to the the leftover huktzah Chanukah oil. What is striking, however, is that this halacha is seemingly in direct contradiction with something he writes elsewhere…

EMIL

The parameters of EMIL are quite extensive, and quite frankly beyond the scope of this essay, but we will look at some of the main sources together for the hopes of better understanding EMIL and to suggest some answers to the contradiction, as we will soon see.

The overall source of EMIL is a Mishna tucked away in Meseches Terumos (5:9) which states: "if a se'ah of terumah fell into less than one hundred se'os of chulin (non-terumah), and then afterwards some more se'os of chulin fell into the mixture, if the second spill was accidental, then the mixture is permissible. If, however, the second spill was intentional, then the mixture is forbidden." From here a distinction is made as to how something became negated: Was it done b'shogeg or b'meizid? If the former, then the mixture is still okay; if the latter, then the mixture is assur, as per EMIL. Even thought the Mishna doesn't state the concept of EMIL, Rambam (Peirush HaMishnayos, ibid.) clearly states that this rule is learned from here, and it applies to all types of issurim, not just terumah.

Is EMIL A Din D'orysa Or Din D'rabanan?

This is a machlokes in the Rishonim, based on the sugya of eil nazir (see Chulin 98b), where Rashi (Chulin 98b, d"h Chidush hu) and Raavad (cited by Ran 35b) understand it to be a din d'orysa, while Tosafos (Chulin 98b d"h lav), Rashba (Torah HaBayis 4:3), Ran (ibid.), and Rambam (Peirush HaMishna to Terumos 5:9) all hold that it is only a din d'rabanan. It should be noted that Rambam explains the reasoning for the g'zeira as that of a k'nas, or penalty, for the one who purposely negated an issur. Others say it's simply a concern of the rabbis that perhaps one will come to eat a forbidden mixture without bitul altogether.

It is interesting to note that where Shulchan Aruch talks specifically about the laws of EMIL (YD 99:5) he doesn't take sides on this issue. It is Shach (7), however, who paskins like the majority view — EMIL is an issur d'rabanan. In terms of a nafka minah if EMIL is d'orysa or derabanan: R. Akiva Eiger (SA YD, ibid.) suggests that if we assume it's an issur d'orysa, then the k'nas would apply even to cases of shogeg. But if the issur is only d'rabanan, we would not slap a k'nas on a shogeg case; only meizid.

What Of The Nature Of The Issur In Question?

The Gemara in Beitzah (4b) presents the following situation: What if a few palm branches (muktzah) fall off of a tree on Yom Tov directly into a furnace — can one now use that newly fueled fire to cook something? The Gemara at first assumes you can if you add non-muktzah branches to cancel out the muktzah ones, but then asks why that isn't mevatlin issur l'chatchilah — after all, the branches were muktzah, and now you are trying to cancel them out for your own benefit?! The Gemara concludes with a chidush that there is distinction to be made between something only assur mid'rabanan and something assur mid’orysa. We know the din of EMIL from the Mishna in Terumos — an issur d'orysa — that you cannot purposely negate. However, when it comes to an issur d'rabanan, such as our case of muktzah, we do not apply EMIL, and one can mevatel the issur even l'chatchilah.

Tosafos (ibid., d"h v'hatenan) ask: What about cases of terumah d'rabanan? Isn't that an issur d'rabanan and yet we still say EMIL? To answer this question, they make a distinction between an issur d'rabanan that has an "ikar min haTorah" such as terumah, and thus EMIL, versus an issur d'rabanan that "ein la ikar min haTorah," such as muktzah. Thus, yes we can mevatel it l'chatchilah. Rashba (Toras HaBayis 4:3) paskins like this as well.

Rosh (1:7) understands the Gemara in a more machmir way: When we say that we can mevatel an issur d'rabanan l'chatchilah that's not across the board; it's only when the issur d'rabanan is immediately being consumed or burnt up, as in the case of the branches being burned as fuel right away. In that case we say EMIL. But not in other d'rabanan cases.

L'halacha, Ramah (YD 99:6) paskins like Rosh, l'chumrah, and so it would be assur to add heter to mevatel an issur d'rabanan, even if the issur does not have an ikar min haTorah! It's only allowed if the issur is immediately burnt up. Shach (17) sides with Rosh as well, while Taz (12) is meikil, even if the issur has an ikar min haTorah. What is most interesting here will be the psak of the Shulchan Aruch. He writes (YD 99:6) in accordance with most Rishonim and the simple reading of the Gemara, that any issur d'rabanan that accidentally got mixed with some heter, one may purposely add on heter to cancel out the issur. Note: this does not mean you can add some non-kosher cheese to your meatballs and then mevatel it with some more meatballs! The heter only works if the original ta'aruves was indeed an accident.

The Contradiction

We have finally arrived at our apparent contradiction in Shulchan Aruch…

In Hilchos Ta'aruves (YD 99:6) Mechaber paskins that one may be mevatel an issur d'rabanan, even l'chatchilah. If that is true, why does he paskin in Hilchos Chanukah, as we saw earlier, that one may not be mevatel the leftover Chanukah oil?! Why would that be so? After all, Chanukah is entirely d'rabanan, which means the oil would, at best, be only an issur d'rabanan! Why, then, can we not mevatel it l'chatchilah in regular oil?

Many Achronim raise this stirah in Shulchan Aruch. Below, we'll look at some of their different approaches, and then we'll conclude with a hashkafic insight into this fascinating din.

Taz (both in YD 99:12, and OC 677:4) writes that this is an outright stirah, as Mechaber paskins like Tosafos and Rashba in Ta'aruves and like Rosh by Chanukah, and so he is machria l'kulah like in Yoreh Deah. Shach (19) attempts to explain that really we can be mevatel an issur d'rabanan l'chatchilah as per Yoreh Deah. However, the reason we are machmir by the Chanukah oil is simply because it was "huktzah l'mitzvaso," used for a mitzvah. He then rejects this answer since it being used for a mitzvah should have no bearing on whether it can be mevatel or not — it still is only an issur d'rabanan! He leaves the question "b'tzarich iyun." Magen Avraham (12) & Aruch HaShulchan (OC 677:8) both posit that the leftover Chanukah oil is what is called a "davar sheyeish lo matirin," (DSLM) which is something which is assur right now, but will become mutar in the future. Such items are never batel, even within a rov, and even with shishim. The leftover Chanukah oil is considered a DSLM since right now it is assur for benefit as it was huktzah l'mitzvaso, but one year from now, on next Chanukah it will become mutar again to use as Chanukah oil! Thus, the real psak of Shulchan Aruch is like he writes in Yoreh Deah, that an issur d'rabanan can be mevatel even l'chatchilah. However, the Chanukah oil is unique in that although it's only an issur d'rabanan, since it's also a DSLM, it will not be batel, even if you add heter to the mixture. (Be'er Heitev (YD 99:14) asks on this answer of the Magen Avraham, however, that if the oil really is a DSLM, it would never be batel even in a ratio of 1:1000. Yet from the language of Shulchan Aruch in Hilchos Chanukah it sounds like if there was shishim of regular oil against the leftover oil it would be batel.) Mishna Berura (20) posits that the ikar din of EMIL is like Mechaber writes in Yoreh Deah, that for an issur d'rabanan, one may be mevatel the issur l'chatchilah. Here, however, in Hilchos Chanukah, if you take notice, Mechaber specifically writes "there are those who say" ("yeish mi she-omer") that you cannot add regular oil to the leftover oil to mevatel it. This is a classic case of "stam" (YD) vs. "yeish omrim" (OC) in Shulchan Aruch, where the general rule we follow is: halacha k'stam. R. Ovadia Yosef (Yalkut Yosef, Moadim pp. 233-234) paskins l'halacha that one, in fact, may mevatel the leftover Chanukah oil! How can he paskin against Shulchan Aruch? He suggests (in the footnote there) that since Mechaber wrote Yoreh Deah after he wrote Orach Chaim, it's like a "basrai," meaning it's like the later opinion, so if there is a contradiction between the two volumes, we assume Mechaber was chozer on his original opinion in Orach Chaim and the real halacha is like we find in Yoreh Deah. Thus, to be mevatel the leftover Chanukah oil is mutar, as per Yoreh Deah.

A Message From All This

Finally, in an ill-attempt to weave halachik and hashkafic ideas, I’d like to suggest the following: We know that one of the aspects of our victory on Chanukah over the Greeks was not just in a military fashion, but — and arguably more importantly — also in a spiritual fashion. They gave us everything they had in an attempt to persuade us away from our holy Torah and ruchniyus. They weren't so much interested in our physical destruction — as Haman was — as they were in Hellenizing us to become more like them and less recognizable as Jews. Their attempts at removing us specifically from the mitzvos of Shabbos, Rosh Chodesh, and Milah lay testament to how they wanted to erase from us from the holiness of time and body, things which lie at the very core of keeping us Jews and not secular. It was our strong will to remain separate that caused Hashem to assist us in succeeding in this spiritual battle.

So, perhaps — and just perhaps — we can ensue from the words of Shulchan Aruch in Hilchos Chanukah "there are those who say that you cannot add the needed amount of regular oil to mevatel the Chanukah oil" a unique halacha, special davka to the holiday of Chanukah, that the leftover oil is never mevatel. It's almost a hint to us that the holy Chanukah oil —representative of us Jews — can never be mevatel in regular oil — the areilim that surround us. The oil never assimilates into its environs, and so, too, the Jews of Ancient Judea stood strong against those who wanted to envelop them. Let us, too, internalize the lesson of the Chashmonaim to keep the Torah values and ideals that we hold so dear while rooting out the negative influences that often surround us.