On the previous 2 dapim, as well as the parallel sugya in Sukkah (2b) the Gemara has pointed out a number of times that in contrast to Sukkah which is a biblical requirement, the requirement to close the fourth side of a מבוי is only rabbinical in nature.
On this daf, Rav Chiya bar Ashi quotes Rav’s saying that the laws of 3 things, מחיצות (boundaries that make up a private domain), חציצות (barriers that get in the way of immersion in the mikveh such as clothes, dirt, knots etc,) and שעורים (the minimum quantities of things that are required for various mitzvot or in order to be liable for various transgressions) are all הלכה למשה מסיני (laws given orally to Moshe on Mount Sinai.)
These are generally understood to not only form part of תורה שבעל פה, but have a full דאורייתא דין (biblical status.)
It is therefore surprising when the Gemara challenges Rav’s ruling about the “Halacha leMoshe miSinai” status of these 3 things, by bringing sources that indicate that they are really דאורייתא, based on verses.
Surely הלכה למשה מסני is just as דאורייתא as things written explicitly in the written Torah or derived from דרשות from the verses?
The above 3 examples have major impacts on all areas of biblical law, determining biblical status regards to purity, shabbos law, punishments, marriage law, and so much else, that seem to be weigh beyond something without biblical status.
In addition, the first Mishna in Avos makes it clear that the oral tradition originates with Moshe at har Sinai, and what is this if not “halocho leMoshe miSinai?”
The original phrase “halacha leMoshe MiSinai” is found in a few Mishnayos.
We find (Peah 2/6) the following:
אמר נחום הלבלר מקובל אני מרבי מיאשא שקבל מאבא שקבל מן הזוגות שקבלו מן הנביאים הלכה למשה מסיני בזורע את שדהו שני מיני חטין אם עשאן גורן אחת נותן פאה אחת שתי גרנות נותן שתי פאות
“Nachum the scribe said: I have received from Rabbi Myasha who received from his father, who received from the pairs, who received from the prophets a “halacha leMoshe miSinai” regarding one who sows his field with two types of wheat. If he sowed them for 1 threshing floor, he gives one peah (corner of field left for the poor.) If he made them into two threshing floors, he gives two .
We see clearly that halacha leMoshe miSinai is a tradition received orally that can be traced back through the זוגות (pairs) to the prophets all the way back to what Hashem taught Moshe on har Sinai, which certainly sounds like something of divine origin which should be accorded biblical status.
In another mishna (Eduyos 8/7), we find the following:
אמר רבי יהושע מקובל אני מרבן יוחנן בן זכאי ששמע מרבו ורבו מרבו הלכה למשה מסיני שאין אליהו בא לטמא ולטהר לרחק ולקרב אלא לרחק המקורבין בזרוע ולקרב המרוחקין בזרוע….
“Rabbi Yehoshua said: I received from Rabban Yochanan ben Zakai who heard from his Rabbi, who heard from his Rabbi a ‘halocho leMoshe miSinai’ that Eliyahu will not come to declare things impure or pure, to distance or bring close, but rather to distance those who were drawn near by force and draw near those who were distanced by force.”
Together with the dissenting views recorded therein, this Mishna presents a fascinating perspective on what the role of Eliyahu haNavi (Elijah the Prophet) will be in Messianic times.
For our purposes, it is interesting to note that this does seem like a halachik matter but rather a prediction, and even if it is a halachik matter which prescribes Eliyahu’s behavior in the future, it is in the realm of הלכתא דמשיחא (theoretical halacha only relevant in the messianic era,) yet the phrase “halocho leMoshe miSinai” is still applied.
It is also important to notice that unlike in the previous Mishna which traces this “halocho leMoshe miSinai” back through the sages and prophets, Rabbi Yehoshua only traces this back to Rabbi Yochanan ben Zakai’s Rabbi.”
This could be understood in two ways:
It is possible that this is a different form of “halocho leMoshe miSinai,” less authoritative than the first, perhaps only rabbinic in nature, to which the phrase is still applied – some explanation would be needed for such a novel claim.
It is also possible that this is a regular halacha leMoshe MiSinai with divine origins and biblical status, and for some reason, Rabbi Yehoshua simply gave a more abridged version of his Masoretic chain than Rabbi Myasha did.
In another Mishna (Yadayim 4/3,) we find a major dispute regarding the status of the lands of Amon and Moav (identified by some Rishonim as the land of Sichon and Og which we inherited, i.e. עור לירדן [Rambam] and others as the core land of Amon and Moav that we were not allowed to conquer [see for example Bartenura. )
For various reasons, these lands were subject to some of the laws of the land of Israel, and although Teruma (the priests’ portion) and Maaser Rishon (the tithe given to the Levite) did not need to be separated, either Maaser Sheini (the tithe eaten in Jerusalem or redeemed) or Maaser Ani (the tithe given to the poor) had to be given. The dispute is to which one of these two needed to be given during the shemita (sabbatical) year, where produce in Israel was exempt from tithing, and the decision was that it should be given to the poor as Maaser ani.
When this decision was reported to Rabbi Eliezer, he responded that they should have no concerns about their ruling, seeing as:
מקובל אני מרבן יוחנן בן זכאי ששמע מרבו ורבו מרבו עד הלכה למשה מסיני שעמון ומואב מעשרין מעשר עני בשביעית
“I have received from Rabban Yochanan ben Zakai who heard from his Rabbi and his Rabbi back till “halocho leMoshe miSinai” that in Amon and Moav, maser ani must be taken during shemita.”
While we see that Rabbi Eliezer put their mind at ease that their ruling was actually a “halacha leMoshe miSinai” (see Bava Basra 12b where we see that this sometimes happened with things said by a great man) it is important to note that this was a matter of prime halachik significance. Maaser sheini was considered קודש (sanctified property) and eating it outside Jerusalem if not redeemed was a punishable offense, whereas maaser ani was considered חולין (non-sacred) and anyone could eat it anywhere, provided the poor person who received it gave him permission to do so.
We also note that the wording here is more similar to the second case, where the tradition is only traced back to the teacher of the early Tana Rabbi Yochanan ben Zakai, who received the “halocho leMoshe miSinai” , and the rest of the chain of transmission through the pairs and the prophets was not mentioned.
On the other hand, in contrast with the second case which says that the tradition received by Rabban Yochanan ben Zakai’s Rabbi was a “halocho leMoshe miSinai,” here it says that his Rabbi received a tradition that goes back to “halocho leMoshe miSinai,” presumably through the pairs and the prophets.
Yet despite the later point, the Bartenura comments that this is not a regular “halocho leMoshe miSinai” but rather a rabbinic tradition which can sometimes be referred to by that title.
He admits, however, that the Tosefta (Yadayim 2) uses a version of the tradition similar to the first case, involving the pairs and the prophets (and interestingly enough, not Rabban Yochanan ben Zakai’s father), and leaves the question open.
All this seems to point in the direction of the second explanation we suggested, namely that these are just different abridged versions of the same full tradition recorded in the first Mishna of Avos, but essentially mean the same thing.
It is of course possible, that the second case, which does not say “back to halocho leMoshe miSinai” but simply “halocho leMoshe miSinai” could certainly be an example of a rabbinic tradition referred to as “halocho leMoshe miSinai” for some reason.
In another twist, the Gemara (Hagiga 4b) brings our Mishna in Yadayim, albeit with slightly different language.
There the wording is:
לך אמור להם: אל תחושו למניינכם, כך מקובלני מרבן יוחנן בן זכאי, ששמע מרבו, ורבו מרבו: הלכתא למשה מסיני, עמון ומואב מעשרין מעשר עני בשביעית.
Which is pretty much the same as the version in Eduyos, rendering the subtle difference in language in our version more likely a result of גירסא (different textual variants) than anything else.
Yet, Ironically, Rashi there says explicitly that this is a rabbinic law, and not a standard “halocho leMoshe miSinai.”
Back to our daf:
We have seen that the Gemara has challenged Rav’s ruling that shiurim, mechitzah, and chatzitza are all halocho leMoshe MiSinai based on sources that derive them from verses, which make them דאורייתא .
We questioned why the term דאורייתא is employed there, given the fact that Halocho leMoshe miSinai should also be considered biblical.
Having examined various usages of this phrase in the original Mishnayos, we have seen that there is a strong possibility, a view accepted by Rashi and the Bartenura, that there are indeed two types of “halocho leMoshe miSinai’- some of completely divine origin as handed over to Moshe “literally,” and others being strong rabbinic traditions that are given this title.
One could certainly entertain the possible that the 3 things mentioned in our sugya are examples of the later category, and thus although still called הלכה למשה מסיני, do not have the stringent status of biblical law.
However, given the major ramifications these rules have on so many areas of biblical halacha including biblical punishments, it seems very hard to reach this conclusion.
Even according to the Rishonim who suggested that there are two different types of halocho leMoshe miSinai, it seems far more likely that these are examples of the first type of pure divine origin.
As such, our original question as to why the term דאורייתא is not employed to them here has not been sufficiently resolved.
Perhaps we can suggest that the term דאורייתא has both broad and narrow scope- when used on its own, it refers to everything that has the same legal stringency of biblical law, and that includes things written explicitly in the text, things learn from דרשות on the text, using the principles of דרש given to Moshe orally at Sinai, as well as laws given explicitly BUT orally to Moshe at Sinai.
However, when used in comparison to other things within the same legal category, it can also be used to denote things that are learnt from the written text, or at least tied to it via דרשות, as opposed to things that were transmitted only orally, ie. הלכה למשה מסיני.
Addendum: The Meiri on the first daf seems to take a similar approach. He is of the seemingly radical opinion that even the requirement to mark the open side of a מבוי with a pole or beam is of Sinaitic origination and halocho leMoshe miSinai.
He is thus bothered by the fact that it is referred to in the Gemara as rabbinic in nature.
He proposes that although halocho leMoshe miSinai is always of Sinaitic origin, it is sometimes referred to by Chazal as דאורייתא and sometimes as דרבנן.
It seems that his intent is that even though it was given on Sinai and has the stringency of biblical law, it is not actually written in the Torah and thus technically not דאורייתא.
Why Chazal choose sometimes to refer to it based on its halachik status and sometimes based on its technical status requires further discussion, as does how the Meiri explains the “softer” language ימעט used for a מבוי, according to the first answer in the Gemara on daf 2.
It certainly explains how one version in the sugya on daf 3 treats it more stringently than Sukkah where part of the top is below 20 amos and part is not without going against the usual rule that a rabbinical law is treated less stringently.
In his case, מבוי actually has the halachik stringency of halocho leMoshe miSinai, but due to it not being written explicitly in the Torah, it needs חזוק (strengthening) and is thus treated even more strictly!
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.