Monthly Archives: July 2020

Shabbos 113 Tying knots on Shabbos and דבר שאין מתקים.

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On our Daf, we are told the generally accepted rule of Rabbi Yehuda that tying any knot which is not permanent is not a biblical transgression on shabbos.
We have seen this idea recently when the Mishna (Shabbos 111b) taught us that one is only liable for tying the type of knot tied by camel-drivers and sailors.
Rashi over there explained that this means that the knot has to last forever (presumably in the absence of human intervention), likes the knots tied to join the broken threads in the curtains of the mishkan.
The Gemara indeed verifies that this refers to the knot which ties a camel’s nose-ring in place permanently, so that the rope that it is driven with can be tied to the ring and untied as needed, as well as the knot tied with a rope to a ship through which ropes can be tied in to order to anchor it.
In contrast, the knots made to tie the anchor-ropes to the knot-rope or the rope to the camel’s nose-ring are not regarded as permanent knots. These are rabbinically forbidden, for reasons given later in the sugya.
On this basis, the Gemara allows tying shoelaces on shabbos under certain circumstances, and forbids them under others, and this sugya needs to be well understood before coming to any conclusions regarding doing this in practice.
Similarly, regarding the melacha of כותב (writing), the Mishna (Shabbos 104b) tells us that one is not liable if one writes with something such a fruit juice or dust that does not last.
Several questions with far-reaching ramifications needs to be addressed, among them:

  • What is the reason for this requirement?
  • Is this requirement for the effects of a melacha to be permanent, or at least long-lasting, limited to the מלאכות where it is mentioned explicitly by Chazal, like writing and tying knots, or is a general rule for all melachot of Shabbos.
  • How long does the effect of the action have to last in order for it to be considered permanent?
    One might argue that having a permanent affect is part of the general rule that an action has to be מלאכת מחשבת, significant and calculated work, and something whose affect is merely temporary is not significant enough to fall into that category.
    On the other hand, one might argue that the way these particular מלאכות were performed in the mishkan were in ways that were permanent, and we derive this rule directly from that, not from the general rule of מלאכת מחשבת. This seems to be the approach that Rashi has taken here regarding regarding tying nots.
    This approach seems logical, given that there are many מלאכות, such as plowing a furrow or baking bread, whose affects are clearly not permanent- for example a furrow is filled in by blowing dust or destroyed by rain or people who walk over it, and a loaf of bread goes rotten and inedible on its own after a few days.
    However, the Magid Mishna (Shabbos 11\15) says explicitly that this is a general rule that applies to ALL מלאכות.
    According to this, one would perhaps need to accept this as a general rule but admit that when a melacha was specifically done in the Mishkan without permanent affects , like in the above two examples, there would be an exception to this rule.
    Alternatively, one would need to limit the definition of “permanent” to the time that these two examples and other like them generally last for- perhaps a week or so (is the lechem hapanim perhaps a precedent for this?)
    In truth, even Rashi who has no need to limit the definition of permanent and clearly has not done so on the Mishna, does seem to understand that the reason why there is still a rabbinical prohibition on tying the rope to the boat or the camel’s ring is because one might leave it there “a week or two.”
    There, Rashi too seems to imply that leaving it there a week or two would be a biblical transgression, and Chazal thus forbade tying it even for a short time in case one comes to do so.
    This apparent contradiction in Rashi requires its own analysis, but we unfortunately do not have time for that now.
    The key to the question of whether the requirement for permanence, whatever it means, applies to all מלאכות, probably lies in an earlier Mishna.
    The Mishna (Shabbos 102) tells us that in order to be liable for a melacha on Shabbos, it has to be דבר המתקים, something that lasts.
    In the somewhat cryptic words words of the Mishna זה הכלל כל העושה מלאכה ומלאכתו מתקיימת בשבת חייב- This is the rule, anyone who does a melacha and his melacha endures on Shabbos, is liable.
    This is the simple meaning of the Mishna, and the way the above-cited Magid Mishna, and possibly the Rambam himself, as we shall discuss later, interprets it.
    In fact, the Yerushalmi, as quoted by the Rashba and the Ritva, also seems to have learnt it that way, as it explains that the construction of the mishkan was considered permanent seeing as it stayed in one place until the divine command to move was given, or that building for a certain period (בנין לשעה) is also considered building.
    However, the wording of the Mishna implies that if the results of the melacha last all of that shabbos, it is considered מלאכת מחשבת, and if they do not, it is not, serving both as the basis for the general exemption of a melacha whose effect is not permanent, and a broad definition of permanent to something that lasts the whole shabbos.
    This means in effect that there is no actual fixed length of time that defines permanent, as it clearly depends when on Shabbos this action is performed- it could be as long as almost 24 hours and as little as less than a minute, an unusual form of measurement to say the least.
    How does this fit in with what we learnt regarding tying knots (and probably also writing) where the examples given were actions that are truly permanent?
    One possibility is that those two melachot are exceptions, due to the specific ways they were performed in the mishkan, but the general rule is far more limited.
    This would also answer the difficulties we raised based on baking, ploughing, and the like, whose affects are not permanent in the classic sense of the world, but certainly last till at least the end of shabbos.
    It would not, however, answer how the Yerushalmi derives this from the building of the Mishkan, which certainly lasted longer than one shabbos, and was not built on shabbos at all!
    Another possibility is that there is indeed no general rule at all, and that this cryptic Mishna has a totally different meaning to what its arguably most simple reading is (certainly the way I first read it.)
    A look at Rashi, shows that he has what’s seems like a rather creative interpretation of both דבר המתקיים and בשבת an approach that is shared by a surprisingly number of other Rishonim with various variations (see for example, Ran , Bertenura on the Mishna, and even the Meiri!)
    He understands מתקיים not to refer to the time that the effect of the melacha lasts, but to the utility of the action- an action that is sometimes good enough to be left as is, and requires nothing to be added, is considered מתקיים.
    He also interprets בשבת not to refer to how long the results of the action need to endure, but rather the day that the action is done.
    This interpretation seems not only creative, but rather problematic. Firstly, the Mishna does not say the words that Rashi uses שכיוצא בו מתקים [בלא הוספה] – (note the brackets indicating a possibly questionable version of his words). Secondly, the word בשבת appears redundant, given that all the melachot we are talking about are referring to things done on shabbos!
    Furthermore, just like the מלאכות of writing and tying were only done in the Mishkan in ways that were long-lasting, it is clear that at least most were done in a way that lasts longer than 24 hours or even a week, so just like the length of the effect of the above melachot needs to be similar to that of the Mishkan, surely all actions need to as well, even if complete permanence of effect is not needed?
    Most of all though, the implication that a melacha needs to produce something which could sometimes be left as is, is rather problematic- since when where the ground herbs in the mishkan left as is? They were used for cooking the dyes. Since when does one leave threshed produce as is without further purifying it or a kneaded loaf unbaked?
    Other Rishonim, take a similar approach to the Mishna, but interpret מתקיים as something which does not need to be undone.
    According to these Rishonim, we are left without an explicit source for a general rule that a melacha which lacks a lasting effect is not biblically prohibited, and it is possible, though not definite, that this leniency is limited to the melachot it has explicitly been applied too.
    I had the gut feeling that the Rambam would learn the Mishna כפשוטו- He does not seem to comment in his פרוש המשניות , or regarding a general rule, but in my online search, I came across the דף על דף anthology who quoted the Minchas Yitchak who claims that the Rambam does precisely this.
    He points to the Rambam )Shabbos 9/13) regarding צובע, where he says that it has to be done with materials that last, but brings the wording of our Mishna in perek 7 with its general rule דבר המתקיים בשבת!
    Why the Rambam chooses to display his interpretation of the Mishna specifically there and not as a general rule, is a question in its own right- however it seems pretty clear that this is how he understands the Mishna, unless he is simply borrowing its wording and applying it to a completely different principle, which while not impossible for the Rambam, would not be our first choice.
    Now that we have seen that the Rambam and some other Rishonim do indeed learn that our Mishna is teaching us a general exemption for a melacha that lacks a lasting effect, and limited the definition of temporary to that shabbos, we need to explain why we treat the melachos of writing and tying a knot differently and require those to have a really permanent effect.
    We also need to reassess whether Rashi and those who interpret the Mishna like him agree with this principle, but simply don’t believe that it is sourced in our Mishna, whether they reject it out of hand, or whether they have a longer view of permanence required for all melachot, similar to what we see by writing and tying a knot, and therefore interpret this Mishna as referring to something completely different.
    The results of the further research required to have massive ramifications for the scope and applicability of this commonly assumed but perhaps narrower than assumed leniency!

Shabbos 112 Yeridas hadoros (the drop in the generations)

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On this Daf, we encounter a fascinating narrative where the sage Chizkiya asks his student, the famous Rabbi Yochanan , a complex question regarding the laws of impurity, and is so impressed with the answer he gives that he exclaims: “This is no man” (but rather an angel, according to Rashi’s explanation.)
A different version of this event is then brought where he exclaims: “THIS is a man.” (ie a real man.)
It appears that there could be a major disagreement between the 2 versions of what Chizkiya said regarding whether an outstanding Torah scholar is to be considered the sign of a truly great man, or an angelic quality, virtually out of reach of a mere human being.
The latter is supported by the well-known statement of Chazal (Bava Metzia 59b) that “לא בשמיים היא “- it is not in heaven. The Torah in supposed to be interpreted, and applied by human beings who have reached the highest levels they can as human beings, NOT by angels, and a voice from heaven is usually not admissible when it comes to halachik rulings.
This is further backed up the exhortation of Hillel (Avos 2\5) that in a place where there is no “man”, one should try to be a man!
However, the continuation of the Gemara does seems to leave both approaches as equally viable options.
It brings the famous statement of Rabbi Zeira in the name of Rava bar Zimuna that אם ראשונים בני מלאכים אנו בני אנשים ואם ראשונים בני אנשים אנו כחמורים… -if the early authorities are like angels, we are human beings, and if they are like human beings, we are like donkeys….
One cannot escape the fact that this statement is brought here in order to refer back to the two different versions of Chizkiya’s statement, and does not only consider both options, but sees the relationship between humans and angels as similar to that between donkeys and humans.
It is clear from this that angelic qualities are considered by our sugya to be superior to human one’s in this regard, but the only debate is as to how we are to be view the qualities of those before us and what Hizkiya considered Rabbi Yochanan’s level to be.
There is much to discuss about it, but one thing that is clear from this sugya is that the later Amoraim considered the scholars of the earlier generations to be far superior in their Torah scholarship to those in their generation.
This is so axiomatic throughout the Shas that entire sugyas are based on ensuring that Amoraim statements do not contradict the statements of the Tannaim before them.
It is necessary, however, to define what precisely this superiority is based on, as well as its scope.
We need to investigate whether this superiority based on the assumption that the quality of quantity of their knowledge and/or reasoning was better, the fact that their divine inspiration and guidance was better, their superiority in righteousness, or their being closer in history to the Sinaitic tradition?
Although Amoraim generally could not or would not argue with Tannaim, its is common for later Tannaim to disagree with earlier Tannaim or for later Amoraim to disagree with earlier Amoraim.
In fact, in a dispute between later Amoraim and earlier Amoraim, we ironically apply the rule of הלכתא כבתראי – the law is like the later authority! (see however Rosh, Bava Metzia 57 who opines that this rule only applies from Abaya and Rava onwards and not before, against the Rif who seems not to differentiate.)
How does this fit in with the idea of אם ראשונים כמלאכים?
In a fascinating case (Brachos 20), Rav Papa asks Abaya why it is that the earlier generations merited to experience miracles, and their generation did not.
He points out that it cannot be because they knew more Torah, as Rav Yehuda’s generation (notably second generation Amoraim) were focused on the part of the Talmud that focusses on damages, and they were focused on all 6 sections of the Talmud.
It also could not be that they understood it better, as Rav Yehuda expressed great difficulty with a certain Mishna while they were able to expand on it with ease.
Yet Rav Yehuda only needed to remove his shoe for rain to come, and their generation could daven all day and nothing happened!
Abaya responded that Rav Yehuda’s generation sacrificed themselves to sanctify Hashem’s name (did risky things in order to preserve the honor of the Torah) and their generation did not.
It seems from here that the superiority of the earlier generations lies NOT in their breadth of knowledge, nor in their greater analytical ability, but rather in their מסירות נפש (self-sacrifice.)
This contrasts greatly with the view expressed by Rabbi Zeira on our daf which seems to put it down to greater analytical ability.
It should also be noted that BOTH of these examples are brought by later Amoraim in reference to earlier ones (whether Rabbi Zeira comparing his generation of scholars to those of Rabbi Yochanan or Abaya comparing his to that of Rav Yehuda.)
Perhaps one answer lies in a radical Rambam (Mamrim 2/1 ) which states that even though when it comes to גזירות made by Chazal, a later Beis Din cannot annul the ruling of an earlier one unless it is greater than them in wisdom and numbers (see Megilla 2a), this does not apply to things that Chazal derives from the Torah itself via the logical rules of interpretation (יג עקרים ).
The Kesef Mishna is extremely bothered by this Rambam, given that we have a rule throughout the Shas that an Amora cannot disagree with a Tanna in anything!
However, a reading of the Rambam’s introduction to the Mishna Torah reveals that he too agrees with this rule, and holds that nobody after the sealing of the Talmud can argue with the ruling of the Talmud either.
This is indeed the answer given by the Kesef Mishna, without reference to the above introduction.
However, his reasoning has nothing to do with the superiority of these different groups of sages in their learning, but rather is explained by the fact that the ruling of the Mishna and later the Gemara were accepted by the entire Jewish people and the leading scholars of the time, and thus had the status of a ruling of the great Sanhedrin.
However, within one period, such as amongst the Tannaim , amongst the Amoraim, or amongst the post-Talmudic sages, there is no such restriction, other than the general rule regarding decrees only being annullable by a greater and more numerous Beis Din.
In case one might argue that such is impossible, as each generation is weaker than the previous one, the Rambam ( Mamrim 2/2) makes it clear that it is certainly possible, even if one cannot get a larger court than that of 71 judges, should there be more Torah scholars who support them.
It is clear from the above that the Rambam has a very limited view of ירידת הדורות and does not subscribe any halachik weight to the statement of Rabbi Zeira on our daf.
It is possible that he views the case in Brachos which attributes the superiority of the earlier generations to their greater מסירות נפש, as the more authoritative of the two, but sees neither case as forbidding disagreement per say with the earlier generations, the only exception being Amoraim disagreeing with Tannaim and post Talmudic authorities disagreeing with Amoraim, for entirely different reasons as mentioned above.
Whether the view of the Rambam is accepted by other authorities and whether this indeed is his view required further study, but in the context of a daf post, this should serve as a basis for opening the discussion.

Shabbos 110-111 Healing, castration, דבר שאין מתכוין , and קרוב לפסיק רישיה

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Our dapim continue to focus a lot on the prohibition of רפואה (healing) on shabbos.

Whereas any concern about danger to life over-rides all laws of Shabbos, the same does not apply to other ailments.

A biblical transgression may not be performed for an ill person who is not in danger, though much of the time, a rabbinical one may be.

However, when it comes to a מיחוש בעלמא (a pain or discomfort that is not severe enough to confine one to bed or affect the entire body,) , Chazal actually forbade even permitted activities, as a גזירה (decree,), intended to prevent one from coming to transgress the melacha of טוחן ( grinding.)

As most cures were (and often still are) derived from plants which were ground up and used for therapeutic purposes, there was a real concern to Chazal that taking medicine, or allowing any other curative activities, might lead to biblical shabbos transgressions.
The rule which our Mishna formulated is that anything which a person normally eats or drinks when he is healthy, may be done on shabbos, even if it has a curative affect.

The same applies to actions, such as bathing in the “good parts” of the sea, which one normally does when healthy, even when one does so for therapeutic purposes. (see back on Daf 109)

I planned a nice post on the discussion of washing and cooling off in the ocean on Shabbos (floating or swimming is a different issue) , which that sugya seems to clearly imply is fine (spoiler alert- at least for Ashkenazim, it isn’t due to a later custom), but had to leave it to a little later- hang in there!

Here, our Mishna deals with drinking a כוס של עקרין (literally a cup of roots) on shabbos. This was a potion made up of tree sap from Alexandra (see Rashi 110a.)
Our Mishna forbids it, seeing as it is used mainly as a cure for jaundice and not as a drink for healthy people.

There is however a negative side affect of this remedy- it causes sterility-causing sterility to oneself, other people, or even animals, is a biblical prohibition, whether done chemically or physically.

As a result, the Gemara questions how this could be allowed even on a weekday, and replies that it is only forbidden when one’s intention is to cause sterility, but if one has a different intention, and the sterility happens automatically, it is allowed.

A proof is brought from Rabbi Yochanan’s ruling that one who wishes to neuter a rooster, should cut its crown off, and the neutering will happen on its own.
The Gemara responds that the case of the rooster is different, as it is not actually made infertile physically or chemically- its “pride” is simply taken away and it loses it motivation to mate.
In our case, however, even though the intention is to heal the jaundice, the side-effect is actual chemical castration, and that is forbidden.

The Gemara then proceeds with other attempts to explain why taking this potion is permitted, by limiting it to people who are already infertile , a woman who has no duty to procreate, or as a last resort, an infertile woman.

I would like to focus on the first stage of this discussion and see how it relates to the well-known leniency of דבר שאין מתכוין.
This is one of the most important principles of melacha on shabbos, but unlike most of the leniencies based on the requirement for מלאכת מחשבת calculated or significant work) on shabbos, this one applies to other prohibitions as well.

The most often quoted example is the ruling of Rabbi Shimon that a person is permitted to drag a bed, chair, or bench along the ground on shabbos in order to move it, and does not have to be concerned that he will dig a groove in the ground while doing do, so long as that is not his intention.

According to Rabbi Shimon, there is no need to refrain from a permitted activity because of the concern that it might be accompanied by a forbidden secondary activity, so long as one’s intention is for the permitted activity.

Rabbi Yehuda disagrees (the precise source for this disagreement is the subject of another discussion) and holds that’s even if one only intends to perform the permitted action, one still has to be concerned about an unintended forbidden consequence.

The leading Amora Rav rules like Rabbi Yehuda, and his colleague, Shmuel, rules like Rabbi Shimon and is permissive.
In various places, the Gemara quotes this case as one of the 3 times where the later Amora, Rabbah, rules like Shmuel rather than Rav, and this therefore became the accepted halacha throughout the Shas- דבר שאין מתכוין מותר.

One important qualification, however, is that the secondary forbidden action we are concerned about should not be inevitable – the term given for this is פסיק רישיה ולא ימות – cutting off a chickens head for one’s child to use as a ball, without the intent to kill it.

Seeing as killing the chicken is an inevitable result of the action of cutting off its head, the action is forbidden, even if that is not his intention.

One of the sources for this distinction is on our daf 111a-b , where Rav tells us that we follow Rabbi Shimon regarding permission to anoint oneself with the very exclusive rose-oil on shabbos, because כל בני ישראל בני מלכים הם – all Jews are princes, and it is thus considered normal to use such things even for non-curative purposes.

The Gemara then questions how Rav can say that we hold like Rabbi Shimon, when he clearly rules in another case in the laws of Shabbos against Rabbi Shimon (why he needs to consistently follow Rabbi Shimon in all cases is not clear from the Gemara, and is the subject of much discussion in the Rishonim.)

The question at hand is whether one may tighten a cloth that is tied around a barrel of wine to prevent leakage, seeing as there is a concern of squeezing out the wine from the cloth (also a topic of much debate regarding what precisely the problem with that would be.)

This seems to be a classic case of דבר שאין מתכוין – the intention is to plug the leak, not to squeeze out the wine.
However, Rav is quoted as forbidding this, which seems to show that he does not hold like Rabbi Shimon regarding דבר שאין מתכוין.

The Gemara attempts to answer this by pointing out that this is actually an example of פסיק רישיה- squeezing our the wine is an inevitable result of tightening the cloth, and Abaya and Rava have pointed out that even Rabbi Shimon would agree that it is forbidden!

While the Gemara rejects this solution seeing as we know that Rav in fact does not agree with Rabbi Shimon’s leniency regarding דבר שאין מתכוין, we remain with the universally accepted distinction that even though דבר שאין מתכוין is permitted, פסיק רישיה is not.

Now back to Daf 110, the כוס של עקרין , and another possible distinction regarding דבר שאין מתכוין.

It is clear from the conclusion of the Gemara that for a fertile male, drinking this potion is forbidden even during the week, due to the prohibition of סרוס (castration.)

The question is why? Surely this is a classic example of דבר שאין מתכוין- the intention is to treat the jaundice, not to cause infertility!
Tosfos quotes Rav Achai Gaon who is so bothered by this question, that he claims that even though Rabbi Shimon holds that דבר שאין מתכון is permitted in all or at least most prohibitions, not only regarding shabbos melacha, we only follow him on shabbos, not in other matters!

There are numerous places in the shas where it is clear that Rabbi Shimon permits דבר שאין מתכוין in other areas of halacha, among them
-permitting a Nazir to scratch his hair without being concerned it might be detached (Nazir 42a)

  • allowing people selling שעטנז ( mixtures of wool and linen) to wear them for show, even though they might benefit from their warmth and transgress the prohibition of wearing שעטנז
    שעטנז (Kilayim 9/5) –[see my Hebrew article for an analysis as to what the precise prohibition is and why wearing it for show is allowed.]
    -performing a bris on a leprous infant, despite the concern that he might cut the נגע off together with the foreskin, transgressing the prohibition of removing a leprous lesion. )Shabbos 133a)
  • letting blood from a בכור בהמה (first born animal) without being concerned he might cause a blemish, which is forbidden. )Bechoros 33b )

As there is no clear claim anywhere in the shas that the Amoraim’s acceptance of Rabbi Shimon’s leniency is limited to the laws of Shabbos, the claim of Rav Achai Gaon is rather radical, and the Tosfos rejects it out of hand, as does the consensus of halachik opinion.

Tosfos actually brings proofs from some of the other sugyos that the Amoraim clearly rule like Rabbi Shimon in all areas of halacha regarding the leniency of דבר שאין מתכוין.

The question remains, however, if that is the case, why is drinking this כוס של עקרין forbidden even during the week, at least for fertile males?

Tosfos suggests that this is because this is actually a case of פסיק רישיה – the resulting infertility is inevitable, and that is why all the Amoraim and Tannaim would agree it is forbidden.

We cannot simply end there, however.
After all, surely Rav Achai Gaon was aware that פסיק רישיה is forbidden?
We also have to try to explain what Rav Achai Gaon would do with all the proofs that the Tosfos brought from the other areas of halacha.

We do not have time in this post for the later, but as far as the former goes, it is unlikely that two Rishonim would debate an easily verifiable medical fact such as whether infertility is an inevitable result of drinking a כוס של עקרין .

A more “lomdish” approach would be to suggest that they agree as to how likely this side-effect is, but debate how inevitable the prohibited action has to be in order to make the permitted action forbidden.

How inevitable you might ask? Surely inevitable means precisely that?

As is often the case with halachik definitions, this is not so simple though- there is some discussion amongst the Rishonim as to the permissibility of something that is קרוב לפסיק רישיה- almost inevitable but not completely, and we shall hopefully discuss in more in later posts.

In fact, a different Tosfos points out that our אב לכולם- the case of dragging the bench, is actually almost inevitable, and the novelty of that particular sugya is that even such a case is permitted.

Perhaps Rav Achai Gaon also makes no distinction between דבר שאין מתכוין and ספק פסיק רישיה whereas our Tosfos (in this case Rabbeinu Yitchak) considers ספק פסיק רישיה to be forbidden like פסיק רישיה ?

Or perhaps we can simply argue that the ingredients used forכוס של עקרין , which grew naturally In Egypt, were simply not available in Geonic Babylonia or medieval France, and the כוס של עקירן was simply not available to either Rav Achai or the Ri, making this a factual argument that is not easily resolved by observation or research, and thus a valid debate in how to understand the sugya?

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Shabbos 108-109 Matters of hygiene, wasting semen, and cutting off hands

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At the end of our daf, a Beraisa is brought quoting Rabbi Muna in the name of Rabbi Yehuda.
Amongst other things, Rabbi Yehuda is quoted as saying someone who touches his eye, nostrils, ears, mouth, sexual organ, an open vein (from bloodletting) or anal opening should have his hand chopped off.
The first question to ask is why Rabbi Yehuda takes this so seriously??!
It is immediately apparent that these are all examples of places where infection can easily enter the body, and it seems logical that this has something to do with the seriousness with which Chazal took hygiene.
Whereas Rashi explains that this is because the רוח רעה (the evil spirit) that is on the hands before washing in the morning , whatever that means, could damage these places, there is no need, at least in the context of this sugya, to assume that this is something supernatural- it could simply be invisible physical micro-organisms (a broader treatment of the usage of this term and that of מזיקין ושדים [harmful forces and demons] might reveals issues with such an interpretation, but that’s for another discussion.)
What is clear from Rashi is that this harsh statement is limited to before one has washed one’s hands.
It is not clear whether this ruling is meant to be taken literally- usually such statements are not, the rule of עין תחת עין (an eye for an eye) being the אב לכולם ( father of all such non literal punishments), and the frequency of such actions would also make it somewhat impractical, but we HAVE seen cases of such penalties literally being carried out!
The Gemara (Sanhedrin 58b) discusses a person who likes to hit people habitually.
Various opinions are given as to how to handle such a person, and Rav Huna opines that his hand should be chopped off, basing himself on the passuk (verse) וזרוע רימה תשבר (and a violent hand will be broken- Iyov 38/15.)
The Gemara proceeds to tell us that Rav Huna carried this out in practice with someone, and most of the Rishonim (early commentators) understand that he did this literally (note the Meiri who suggests that it might have been a monetary payment equivalent to the value of his hand!)
There is a debate between Rashi and Tosfos in that sugya as to what halachik basis Rav Huna had for such an action.
Rashi explains that this was an application of the courts right to impose a meta halachik punishment not actually mandated by the Torah, in order to stop a current danger to society (Sanhedrin 46a)- the passuk brought would thus be only an אסמכתא (in short, a relatively weak basis in the pesukim for what remains a non-biblical law- though this definition is subject to a discussion in its own right.)
This fits in with the rule we have discussed before (Bava Kama 2b) that we do not derive Torah laws from the rest of the Tanach.
Tosfos and Tosfos haRosh both suggest, based on another sugya (Niddah 13b) that Rav Huna held that this was actually the Torah law.
Although they admit that this is problematic in view of the principle cited above, an examination of at least part of the cited sugya in Niddah is now in place.
The Mishna (Niddah 13a) makes the cryptic statement that the more a woman checks herself with her hand to see that she is not a Niddah(menstruant), the more praiseworthy she is. In contrast, a man who does this to see that he is not impure, should have his hand cut off.
The Gemara asks why this is so serious, and answers that it is because it could cause someone to spill his seed in vain, which Chazal viewed as a serious prohibition.
The Gemara (Niddah 13b) asks whether this statement is meant to convey an actual law (דינא תנן) or a curse (לטותא תנן)
The Gemara then brings Rav Huna’s ruling regarding our bully as an example where such language is actually a law, not just a curse.
Although they admit the difficulty poised by the rule of דברי תורה מדברי קבלה לא ילפינן, Tosfos and Tosfos haRosh both argue that this wording implies that according to Rav Huna, this is an actual law, at least in the case of the bully, not an example of an extra judicial punishment by the court.
Now that we have mentioned this sugya, we can return to our sugya and ask why the prohibition of touching one’s sexual organ is grouped together with all the other body parts which should not be touched for health reasons- surely the reason mentioned in Niddah puts it in its own category?
One could argue that health is treated more stringently than prohibition (חמירא סכנתא מאיסורא ) , and that in our sugya which is dealing with touching body cavities WITHOUT washing hands first, this reason was given priority.
However, it needs to be noted that some rather extreme measures were suggested by various Tannaim to avoid the prohibition of wasting seed .
These include seemingly crazy suggestions such as leaving a thorn in one’s flesh, or urinating without holding one’s sexual ,(please discuss this with a serious and down to earth Talmid Chacham before putting into practice- they are usually not be taken at face value) it is hard to say that simple hygiene which so many people are lax about would be more important to Rabbi Yehuda than this consideration.
Perhaps this concern is what pushes Rashi to say that in his opinion, the prohibition of touching one’s sexual organ on our daf is not because of רוח רעה, but because of the concern for spilling semen in vain.
Other Rishonim who hold like Rashi’s initial suggestion might not rule like these extreme opinions- there is indeed some debate amongst Chazal around them, but that requires further analysis.
There is much to discuss on all these topics, and we shall have further opportunity to do this, Hashem willing, but I believe that in the context of the above discussion, a number of things can be argued:

  1. Whether the concern of Rabbi Yehuda was because of some sort of supernatural dangerous force or simple hygiene, it is clear that washing one’s hands before touching parts of the body that are conduits for infection is to be taken extremely seriously.
  2. Although extremely harsh and barbaric punishments such as cutting off people’s hands are certainly not meant to be the norm, Chazal were certainly open to any methods necessary to save society from chaos and anarchy.
  3. There is much to discuss regarding the nature, scope, and reasons for the prohibition of intentionally spilling seed in vain.
    For example, is the desire on the part of a married couple for non vaginal sex, a single male’s overpowering desire to masturbate occasionally for sexual release, fertility testing and treatment, or sex with a condom when needed , really considered spilling seed “in vain?”

Some Rishonim |(See Tosfos, Yevamos 34b and Rambam, introduction to 7’th chapter of Mishnayos Sanhedrin for example) certainly appear to limit the scope of the severe prohibition somewhat (for a future analysis, Hashem willing.)

However, it seems clear from this sugya (at least according to Rashi) and the sugya in Niddah, as well as other sources which we should get to discuss soon, Hashem willing, that even basic needs such as urinating , thorn removal, and checking oneself might be affected by concern for this prohibition ( at least according to certain Tannaim), a point raised by Rav Moshe Feinstein zt’l in a Teshuva )Even haEzer 1/63.)

This does seem to prove that the definition of “in vain” and its severity is somewhat broader than what some interpret the above Rishonim to mean.

One could attempt to counter Rav Moshe’s proof, and I have a possible idea of how to do so, but who wants to take on Rav Moshe….

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Law versus Spirit? Rosh haShana/Yom Kippur during or (hopefully) after Corona peak.

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As the real fear of having to spend the Yamim Noraim davening in small minyanim at shul ( for the lucky ones), in street minyanim in the extreme Israel heat, or at home seems more and more likely , I suggested yesterday to my wife that our street minyanim should be held early in the morning without the piyutim , Gra style.

For those unaware, the original Talmudic version of the Rosh haShana davening and in particular, chazan’s
Repetition, was much shorter than ours, and other than having 3 extended middle brachot rather than the shorter middle bracha of a regular shabbos and Yom Tov, shofar on Rosh haShana and Vidui on Yom Kippur, was pretty similar to a normal chag.

Over the years, and rather controversially at first, many additional piyutim ( poems) were added by great people and the introductory piece מסוד was written to ask permission to deviate from the normal prohibition against adding to the Amida before saying these piyutim .

These piyutim became an essential part of the traditional davening for most of us, to the point that so many of them, like Unetaneh Tokef and Vechol Maaminim, have come to represent the essence of these special days to us .

Yet As recently as the Vilna Gaon, there were authorities that refused to accept these novelties in the body of the amida and simply left them out, and although the mainstream halachik view has accepted and even encouraged their inclusion, it is clear that they do not have the same halachik status as the original 9 brachos themselves , or the mitzvot of the day such as reading the Torah, shofar ( on Rosh haShana), and Vidui on Yom Kippur.

As such, i figured that given the difficulty and possible danger of being outdoors in the sun for 7 hours in the extreme heat , this year could possibly be a year for all of us being “Gra’niks” , doing the essentials together early while the heat is still relatively bearable, and spending the rest of the day saying/singing piyutim with our families and learning.

Of course, I would never make such a decision on my own, and noone would listen to me anyway, but
I just saw a post by Rav Ysoscher Katz drawing attention to a ruling by Rav Schachter below , who uses similar, though admittedly not the same logic, to suggest that shuls that are limited to a maximum number of people hold multiple short minyanim without the piyutim.

In a perhaps typical litvak/chasid debate, Rabbi Katz takes issue with this, on the basis that pure halachik considerations are not the only factor here, but the spirit of the day is equally important, and the damage done to that by such a drastic action, is not worth it- he says he would rather do everything in his home with the family in the absence of the minyan.

Rav Schachters ruling is based on allowing more people to be able to daven with a minyan in shul, and not on allowing minyanim that are already in the street to be shorter and more barable in the heat, and it is unclear whether he would view the comfort factor in the same light.

Yet the extreme heat we experience in Israel during this time of year is not simply a mild discomfort, but can cause extreme suffering, certainly not in line with the simchas Yom Tov which is required on Rosh haShana , as well as sunburn ( where there are not sufficient shady solutions), and dehydration, and can even be dangerous.

On Yom Kippur while fasting, this is even more the case .

As for Rav Katz’s considerations , i tend to believe that the compromise solution of saying piyutim with the family later can allow us to fulfill both minimal halachik and spiritual requirements, if indeed there is a clash here, a discussion I shall avoid for purposes of this post .

Would love to hear thoughts on this .