The Hidden Derasha of Guarding Tefillin

A quick point regarding yesterday’s daf, Menachot 36b. Rabbi Eleazar and Rabbi Yochanan both found it problematic to don tefillin after sunset. This is because of a derasha on a pasuk. Shemot 13:10 reads:

וְשָׁמַרְתָּ֛ אֶת־הַחֻקָּ֥ה הַזֹּ֖את לְמוֹעֲדָ֑הּ מִיָּמִ֖ים יָמִֽימָה׃ {פ}

You shall keep this institution at its set time from year to year.

and somehow, donning it at the wrong time is either an issur aseh or an issur lav.

לָא, דְּכוּלֵּי עָלְמָא אִית לְהוּ דְּרַבִּי אָבִין אָמַר רַבִּי אִילְעָא, וְהָכָא בְּהָא קָא מִיפַּלְגִי: מָר סָבַר ״הִשָּׁמֶר״ דְּלָאו – לָאו, וְ״הִשָּׁמֶר״ דַּעֲשֵׂה – עֲשֵׂה, וּמָר סָבַר ״הִשָּׁמֶר״ דַּעֲשֵׂה נָמֵי לָאו.

The Gemara counters: No, everyone is of the opinion that the ruling is in accordance with the opinion that Rabbi Avin says that Rabbi Ile’a says, and here they disagree with regard to this: One Sage, Rabbi Elazar, holds that the term “observe” written with regard to a prohibition has the status of a prohibition, whereas that same term “observe” written with regard to a positive mitzva has the status of a positive mitzva, as the Torah is issuing a warning to take special care in the observance of a mitzva. Accordingly, the command with regard to the positive mitzva of phylacteries is a positive mitzva. And one Sage, Rabbi Yoḥanan, holds that the term “observe” written with regard to a positive mitzva is also a prohibition.

However:

The ArtScroll footnote, within the square brackets, objects that this is repetitious of a brayta on the preceding amud, and points us at Shaagas Aryeh for an answer. I did not look up the answer.

That brayta read:

תָּנוּ רַבָּנַן: תְּפִילִּין מֵאֵימָתַי מְבָרֵךְ עֲלֵיהֶן? מִשְּׁעַת הַנָּחָתָן. כֵּיצַד? הָיָה מַשְׁכִּים לָצֵאת לַדֶּרֶךְ וּמִתְיָירֵא שֶׁמָּא יֹאבֵדוּ – מַנִּיחָן, וּכְשֶׁיַּגִּיעַ זְמַנָּן מְמַשְׁמֵשׁ בָּהֶן וּמְבָרֵךְ עֲלֵיהֶן.

The Sages taught in a baraita: With regard to phylacteries, from when does one recite a blessing over them? From when the time arrives to don them. How so? If one is rising early to leave his home to travel on the road and is afraid lest his phylacteries become lost during the journey, he dons them even at night, despite the fact that this is not the proper time for the mitzva of phylacteries. And when the time for their mitzva arrives, in the morning, he touches them and recites a blessing over them.

While the brayta merely gives a practical leniency, of balancing priorities of making sure the tefillin are not lost with the proper time of fulfillment, paired with the idea that his whole intent is not actually fulfillment.

Meanwhile, I think that this statement by Rabbi Eleazar (ben Pedat) is actually an instance of a hidden derasha, unnoticed by Rishonim such as Rashi and all the more so by later translations.

Namely, the whole prohibition is dependent upon the phrase וְשָׁמַרְתָּ֛ אֶת־הַחֻקָּ֥ה הַזֹּ֖את. And in this context, Rabbi Eleazar says וְאִם לְשׇׁמְרָן – מוּתָּר. That is, if his intent is to safeguard them, he actually is fulfilling the verse of “guarding” this chukah.