Monthly Archives: August 2020

Eruvin 5 The unfenced courtyard and a mathematics teaser

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We have learnt that although מדאורייתא (biblically,) an area enclosed on three sides is generally considered a רשות היחיד (private domain) as far as the laws of carrying on shabbos are concerned, there is a rabbinical requirement to mark or enclose the fourth side in some way.
 
It is important to note that the biblical rule could have both stringencies and leniencies associated, a subject I hope to discuss in a later post.
 
The leniency is that at least on a biblical level, one is permitted to carry within this area, or from this area to an adjacent private domain, without restriction.  The stringency is that if one carries from this area to a public domain, one would be liable for biblical level shabbos desecration, with all its ramifications.
 
The rabbinic requirement to enclose or mark the fourth side limits one’s ability to carry within that area or from that area to the adjacent רשות היחיד  without doing so, but probably does not affect the biblical prohibition against carrying from it to the רשות  הרבים.   
 
Until now, we have focused on a מבוי, or narrow street, which requires only a לחי (pole) or קורה (beam) to mark the fourth side.
 
What happens with an unfenced private front-yard or garden, either belonging to the owners of one house, or shared by various houses?
 
Does this also need to be enclosed, and if so, is the solution that works for a מבוי also sufficient for such an area?
 
On the one hand, this area is less public than a מבוי and more similar to a private domain by its nature, so perhaps Chazal didn’t see the same need to make it more distinguishable from the public domain.
 
On the other hand, it still shares an open fourth side to the public domain, or at least to a כרמלית ( open area not busy enough to be a public domain, but treated by Chazal with the stringencies of both public and private domains.)
 
On this daf, we see that there are strict rules defining the מבוי  that may be permitted by just a לחי  or קורה . Otherwise, it is considered a חצר (courtyard) and is actually treated more stringently!
 
1.       Its width needs to be narrower than its length, the width being the dimension only enclosed on one side, as opposed to the length which is the dimension enclosed on both sides.
2.       It needs to have houses and courtyards open to it. The Gemara (Shabbos 130b and Rashi) understands the later to mean at least two courtyards that each have two houses open to them.
 
As such, it seems clear that both a shared courtyard and a private one certainly do not meet the later criteria, and might sometimes not meet the former one either.
 
It seems to follow from here that at least the shared courtyard would definitely be treated stricter than the מבוי, and with the argument in favor of leniency for a less public area to be treated more leniently disregarded, in the absence of precedent to  the contrary , it seems that this would also be the case with a private front-yard or garden.
 
What precisely is required in order to be able to carry in such an area will hopefully be the topic of a later post as the sugyos develops.

 
There is a מחלוקת (dispute) on this daf between Rav Yosef and his student, Abaya regarding the minimum length of a מבוי.
 
Rav Yoseif holds that 4 טפחים (handbreadths) are sufficient, whereas Abaya requires 4 אמות (arm-lengths.)
 
Abaya attempts to prove his point from the above rule that we learnt- in order to be considered aמבוי  as far as the more lenient requirement for a לחי  or קורה, there have to be at least 2 courtyards that open to it.
 
As the minimum width of a פתח  (opening) is 4 טפחים  (the maximum being 10 אמות,) it is impossible for a courtyard to share one with a מבוי  that itself is only 4 טפחים long, without the entire length being open and thus disqualified .
 
The opening can also not be along the width that is already closed, as the width may not be wider than the length!
 
Rav Yoseif counters that one opening could still be possible on each side, if it is in the corner between the length and the width.
 
Rashi explains that this could be made of a 3 טפחים  gap along the length PLUS a 1 טפח  opening along the adjacent wall of the width, making the minimum 4 טפחים in total.
 
Tosfos , as well as other Rishonim make the rather strong observation that Rashi is not being precise, as the true entrance would then be marked by the diagonal between the enclosed part of the length and the enclosed part of the width, which mathematically (by pythagorus) will be the root of 10, still below the minimum width of 4 טפחים  !
 
Is Tosfos accusing Rashi of being unaware of basic mathematics such as the theorem of Pythagoras? Absolutely impossible, as there are various sugyos which mention this, approximating the root of 2 with 7 over 5 (See sukkah 8a for example)
 
It is also very simple for any mathematical layman to measure such a diagonal and see that the diagonal is much closer to 3 than 4.
 
As such, it seems clear that Tosfos understood that Rashi was aware of this discrepancy but deliberately chose to ignore it and be happy with an approximate minimum with  slightly more than 3 in place of 4, something that seems rather odd.
 
We have seen elsewhere that the Tosfos have pointed out that Chazal themselves were not always precise with their measurements (see Eruvin 13b for example) , but this was a question of rounding to the nearest integer, not rounding down more than a  half  and resulting in a major leniency.
 
It thus seems more likely that Rashi did not measure the entrance from the diagonal, but from the imaginary wall that would exist in the corner if the 3 plus 1 handbreadths were closed.
 
This would be a rather substantial מחלוקת  with a huge נפקא מינה (practical ramification) regarding the status of the area in-between this imaginary boundary and the diagonal as well as whether a bent opening like this is valid.
 
It is also clearly not the way Tosfos understood Rashi!
וצריך עיון גדול

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.

Eruvin 4 “Halacha leMoshe miSinai”

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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.

Eruvin 3 Biblical versus rabbinical prohibitions

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We have seen that the maximum height of the beam that goes from one side of a מבוי to the other is 20 amos, and if it is higher than that, it needs to be lowered.

The same applies to the סכך (“roof”) of a sukkah.

There is a debate on our daf regarding the law if only part of the beam or סכך is above 20 amos.

Rabbah rules that in the case of the מבוי, it is fine, but not in the case of the Sukkah.

The Gemara seems to understand that in theory, it should be fine in both cases, but there is a real concern that the lower part of the beam or סכך could rot or fall off, leaving only the higher invalid part. It then brings 2 reasons why in the case of a Sukkah, we take this concern into account, and not in the case of a מבוי.

I wish to focus on the second reason given by Ravina- I have seen that my colleague Rabbi @Johnny Solomon has already focused beautifully as usual on the first reason in his daily post.

Ravina explains that the main difference lies in the severity of the matter at stake.

Seeing as Sukkah is a biblical law, we are stringent and take this concern into account.

As the requirement to mark the fourth side of a מבוי is only rabbinical, this concern is not significant enough for us to consider.

This fits in well with what we saw on the first daf, at least according to the explanation of Tosfos quoted in the previous post, that the added severity of the biblical law of Sukkah is the reason why we use the stronger phrase “it is invalid” rather than the more positive phrase “it should be reduced.”

It also fits well with our general understanding that Torah law is treated more strictly than rabbinical law. One of the most common applications of this is the famous rule that in case of doubt in a biblical matter, we are stringent, whereas in case of a doubt in a rabbinical matter, we are lenient, but there are of course many others.

It thus comes as a surprise when a different version of this discussion is brought in the Gemara where Rabbah rules that we are lenient in the case of Sukkah and allow part of the סכך (covering) to be higher than the maximum height, but are stringent in the case of the מבוי and do not allow part of the beam to be above the 20 amot maximum height.

Two explanations are given, and Ravina explains that we are more stringent with the מבוי specifically because it is only a rabbinical requirement, and thus requires strengthening.

Seeing as people naturally, and as a result of the various halachik leniencies involved, tend to take rabbinical requirements less seriously than biblical ones, Chazal sometimes imposed harsher rules specifically on the former, in order to make us take them more seriously.

We see this idea in numerous other places as well.

There is the famous story of Rabbi Tarfon (Brachos 10b) who went against the ruling of Beis Hillel and lay down to read the night-time Shema, in accordance with the stringent view of Beis Shamai.

He was attacked by robbers and was told by his colleagues after surviving that he got off relatively light, and really had deserved to die for going against the authoritative view of Beis Hillel.

Although missing out on performing a positive mitzva does not incur any official penalty, we seem to see from the above that performing a positive mitzva in a different way to the accepted rabbinic position can be serious enough that the phrase “deserve to die” can be applied to one who does so.

Later in our perek (Eruvin 21a,) we see the following:

דרש רבא: מאי דכתיב ויתר מהמה בני הזהר עשות ספרים הרבה וגו’. בני! הזהר בדברי סופרים יותר מדברי תורה. שדברי תורה יש בהן עשה ולא תעשה, ודברי סופרים – כל העובר על דברי סופרים חייב מיתה.

Rava, based on a derasha from a passuk, exhorts us to be even more careful with דברי סופרים (a term usually applied to rabbinical law, though some analysis is needed regarding this) than one is with Torah law, seeing as Torah law is divided into positive and negative commands (the punishment for avoiding the former being less severe than the later,) whereas anyone who transgresses the words of the סופרים (lit scribes) is liable to death.

This phrase is used explicitly to refer to rabbinical law (Brachos 4b) regarding one who deliberately delays saying Shema until after midnight- We are told in that regard “כל העובר על דברי חכמים חייב מיתה “ – anyone who transgresses the words of the sages deserves to die.

While it is clear that neither of these refer to an official death penalty in a court, and it is even possible that this is also an example of exaggerated language used by Chazal to make a strong point (I am almost finished a detailed Hebrew analysis on this subject,) it is clearly more than enough to show us the seriousness with which rabbinical laws should be taken.

There are many other examples of both approaches we see in our sugya, some which treat rabbinical laws less strictly than biblical laws, and others that treat them even more stringently.

There is also a similar idea we see with Shabbos and Yom-Tov, this time both biblical commandments but of different severity.

Whereas intentionally desecrating the Shabbos can involve a capital transgression, doing the same on Yom-Tov is a regular negative prohibition which incurs at most corporal punishment.

There are also various melachot, namely some of those associated with food preparation, that are permitted on Yom-Tov but forbidden on Shabbos.

Despite the less stringent nature of Yom-Tov, and specifically because of it, we find that Chazal )Beitza 2b) were occasionally more stringent with Yom-Tov, and forbade forms of Nolad (a type of muktza status applying to “newly born/made “ things on Yom-Tov even though they are permitted on shabbos.

Much discussion is needed to define when “more severe” prohibitions are treated more seriously than less severe ones, and when the “less severe” ones are davka afforded extra “protection,” but the analysis required involves many more cases than can be brought in the scope of this post- I will thus make do for now with having raised the issues , and please stay tuned for a future post which will hopefully continue the discussion!

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.

Eruvin 2 Introduction, Technical measurements and clean language.

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I was discussing my daf posts with my friend and colleague, Rabbi Matthew Liebenberg of Claremont Shul, Cape-Town, and he tried to warn me that keeping up the pace and variety of posts will be much more challenging when we get to Eruvin, which is known as a particularly complicated and technical masechta.

Though I could not deny that I share a degree of concern, I replied that Eruvin is actually one of my “favorite” tractates, assuming it is possible or appropriate to say such a thing. In addition to being filled with fascinating and extremely practical rules essential to understanding the practicalities of Eruv building, something almost all of us need to know, it also contains many general ideas and topics that apply to all of Torah holistically.

This combination of material typical of the Gemara can be found right here on the first daf as well.

The thrust of the first daf deals with the technical requirements for a quiet side-street or alley to be considered a private domain on Shabbos.

The typical neighborhood in the times of Chazal (as can still be seen in some older neighborhoods of Yerushalayim) consisted of a מבוי – a short and narrow side-street or alley which opened to the main public thoroughfare on 1 or 2 sides.

Various חצרות (courtyards) opened to this central מבוי and each courtyard had houses that opened to it.

מדאורייתא ( at a biblical level,) any area enclosed on 3 sides (the exact number of sides/partitions is subject to debate later) was considered a private domain, and carrying within it was permitted.

As such, as far as biblical law is concerned, it is permitted to carry from one house to another within the courtyard, from one courtyard to another within the common מבוי , or within the courtyards or מבוי , so long as the מבאי is only open on one side to the public domain.

If the מבוי is open on two sides to the public domain, it is more complex, as the מבוי itself could be considered part of it.

Our Mishna and sugya deals with a מבוי that is closed on 3 sides and only open on one side to the public domain.

We see later that there is a rabbinical requirement to symbolically mark or enclose such a מבוי with either a pole on one side, or a beam going from one side to the other (there is some debate about these precise requirements as well.)

Our Mishna focusses on the maximum height that this pole or beam may be, as well as the maximum width of the open side, and rules that if they are higher than 20 amos (arm-lengths/cubits) or wider than 10 amos respectively, they need to be lowered or narrowed.

Rabbi Yehuda disagrees and says there is no such requirement.

It is unclear from the Mishna whether Rabbi Yehuda holds that the fourth side can be of infinite height or width, or whether he too places a limit on this, but simply a higher or wider one, but it would seem that if the later is correct, one could have expected him to say what this limit is.

The Gemara notes that a similar maximum height is discussed regarding a Sukkah (Sukkah 2a,) but the language used there is different.

Whereas in our case, we are told that a מבוי that is too high needs to be lowered, regarding Sukkah, we are simply told that it is פסול (invalid.)

As in both cases, lowering it is both compulsory and effective, the difference in language needs to be explained, and the parallel sugya in sukkah asks the very same question and gives the very same answers.

Two answers are given :

  1. Seeing as the Sukkah is דאורייתא (biblical,) the Mishna uses the word “invalid.” As the pole or beam of aמבוי are only rabbinical requirements, the mishna simply tells us the תקנתיה (solution.)
  2. The later language is also appropriate in theory for the biblical requirement of Sukkah, but seeing as a Sukkah has multiple constraints, each requiring a different solution, the Mishna chooses one word that applies to all of them, for the sake of brevity. Rashi explains that this is based on the principle (Pesachim 3b) that one should always teach one’s students using concise language.

There are various approaches in the Rishonim as to how to understand the first answer.

Rashi seems to understand that when the Gemara contrasts the biblical Sukkah with the rabbinical מבוי , it is not referring to the actual requirement of dwelling in a Sukkah or putting a pole or beam on a מבוי, even though the distinction certainly applies to that as well, but to the maximum height of the Sukkah and the מבוי.

We derive the maximum height of a sukkah from a verse in the Torah: למען ידעו דורותיכם כי בסוכות הושבתי את בני ישראל (“So that your generations will know that I placed the Jewish people in sukkot” -Vayikra 23/43.)- the Sukkah has to be low enough for the roof to be noticed.

As such, this requirement predates the writing down of the mishna by far, and it is appropriate to say that it is already invalid.

In contrast, the requirement to mark a מבוי with a pole or a beam itself is only rabbinical and its maximum dimensions are also. Seeing as the Mishna is the first to teach us these maximum dimensions, it is not appropriate to label the מבוי as already invalid but only to tell us how to solve the issue from the beginning.

This explanation has various difficulties, but I shall not dwell on them in this post.

Tosfos understands the answer a little differently- Due to the strict biblical requirements of sukkah, we are concerned that using a softer language would make us think that the requirement to fix it up is only לכתחילה (in the first place,) but if one sat in the sukkah without making these corrections, one would fulfill the mitzva still בדיעבד (post-facto.)

As such, the harsher language is preferred.

In the case of Eruvin, seeing as the requirement is only rabbinical, we are less concerned that a person might make this error, and we choose to use the softer language, in keeping with the principle (Pesachim 3a) that it is always best to use לישנא מעליה (positive language ) where possible.

We see that there are 3 principles at work here, which sometimes need to be traded off against each other, and it is fascinating to note that both Rashi and Tosfos refer to the same sugya in Pesachim which discusses 2 of these principles and the trade-off between them, but for completely opposite purposes.

  1. Language needs to be נקיה (clean), and that doesn’t just mean avoiding foul language but specifically choosing לשון מעליא (positive language.)
  2. Language needs to be concise (probably to make it easier to comprehend and remember.)
  3. Language needs to be clear or strong enough to convey the historical timeline of the law (Rashi) or the stringency of the law (Tosfos)

According to the first answer in the Gemara, the third factor over-rides the first factor, and strength of message over-rides the need for positive language.

According to the second answer in the Gemara, either positive language still takes priority over strength of message, or the positive language given is still considered appropriate or strong enough to give over the importance of the message.

However, the second factor certainly takes priority over the first, and concise direct language is preferred over positive language, as is indeed the conclusion of the above-quoted sugya in Pesachim.

There is lots more to say about the requirements for language to be clean, concise, and strong enough and how they trade-off with each other, but we have certainly seen on this first daf how the Gemara is able to focus on the one hand on specific and technical rules relating to the subject at hand, and at the same time teach us multiple principles that could apply to every aspect of our lives!

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.

Mazal Tov! Shabbos 157 The great finale, and back to מלאכת מחשבת

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It would probably to wrong to expect a masechet of this nature to end with some “lighter” material, and true to expectation, Maseches Shabbos is a marathon from beginning to end.

On the concluding daf of this epic tractate, we went back to discussing the complex topic of Muktza, focusing on the dispute between Rabbi Yehuda and Rabbi Shimon regarding whether certain forms of muktza are prohibited on shabbos at all.

We meet exotic types of muktza again, such as מוקצה מחמת חסרון כיס , which even Rabbi Shimon forbids, and which we have already learned may not even be moved if needed for a permitted purpose or for the space it is occupying.

We see that the Amoraim appear to be split down the middle regarding whether to follow Rabbi Shimon or Rabbi Yehuda, with Ula, Rav, and Levi following Rabbi Yehuda, and Shmuel, Zeiri, and Rabbi Yochanan following Rabbi Shimon.

As if this is not enough to pack into the last daf, we learn about annulment of vows on shabbos and in general, and revisit other hot topics we have discussed, such as blocking windows and טומאה.

A final חדוש of the Mishna is that it is permitted, at least under certain circumstances to measure things on shabbos.

Although measuring is usually forbidden on Shabbos or Yom Tov as a form of weekday activity (see Beitza 28a,) our Mishna explicitly permits measuring a cloth to see if it is large enough to become impure, as well as measuring a mikveh to see if the water has the minimum required depth.

At the end of the Mishna, we are told that “from their words, we learnt that we may block, measure, and tie on shabbos.”

Although there is no stipulation in this final sentence that this must be for the sake of a mitzva such as mikva, we will see later that the Gemara understood it precisely in that limited way.

It seems, however that Chazal could not have found a better way to end off though, by bringing in once again the most important concept in Shabbos law- the rule of מלאכת מחשבת.

The Gemara ends with a story where Ula was visiting the house of the exilarch. He saw Rabbah bar Rav Huna sitting inside a bathtub full of water and measuring it while inside.

Shocked, Ullah asked him how he could be measuring on shabbos!

Even though the Mishna permitted measuring on shabbos for the sake of various mitzvot, we do not see that it gave a blanket permission to do so in the absence of a mitzva.

(Why he was not bothered by him being in a bathtub on shabbos was the topic of an earlier post too!)

Rabbah bar Rav Huna responded that he was simply being מתעסק בעלמא (literally busying himself.)

Rashi explains that he was not doing it for any specific need but just to keep himself busy.

We have seen the term מתעסק a few times in this Masechta, and it always refers to performing an action unintentionally in some way.

Performing an action intentionally “just to keep busy” but with no specific need in mind is certainly not the normal use of the word in this masechta, and the masechta has certainly left us with some unexpected homework!

I guess we going to have to come back to Shabbos one day…

הדרן עליך מסכת שבת ודעתן עליך

Shabbos 156 Astrology, Mazal, and acceptable risk-taking

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In an earlier post (Shabbos 129,) I promised to find an opportunity to deal with a fascinating sugya on that daf that I was not able to cover at the time.

The grand finale of Shabbos is here, and with it, on the penultimate daf, the opportunity has come to revisit the question of mazal and astrology, as well as its relevance to risk-taking.

First, lets go back to 129b, where The Gemara rules that for astrological reasons, it is dangerous to let blood on a Tuesday, and one should thus avoid it.

This is because “Mars” is dominant during even hours of the day, and the combination of the dangers of זוגות (pairs- see Pesachim 109b) and Mars makes it a particularly dangerous time for doing so.

The Gemara points out that it is equally dangerous on a Friday, but notes that seeing as it has become the norm for people to do so, it is not forbidden, and we apply the verse שומר פתאים השם”“ -Hashem protects the foolish.” )Tehillim 116/7)

Rashi explains that people are under pressure to let blood before shabbos, seeing as the large fish eaten on shabbos helps to replenish one’s blood supply, and they thus accepted the risk, which made it permitted.

This “leniency” has been applied by various later authorities to permitted engaging in activities with some level of risk, if the population of a whole has voted with their feet that the need for the activity outweighs the risk, and rely on the fact that Hashem will or at least might protect them.

In truth, it is clear from the everyday life described in the Mishna and Gemara that people took calculated risks in their day to day life, particularly while pursuing their livelihoods, and going to study Torah or perform other mitzvos, and with the exception of situations of clear and definite danger, this was barely criticized.

We find that workers said Shema while working up in trees or building platforms )Brachos 16a), and do not see any suggestion that they should not take the risk of working in such risky positions in the first place.

Although travel in general, and going out to sea in particular, was fraught with dangers, to the point that one said a prayer for a safe journey and sometimes said a special blessing of thanks (הגומל) when returning, we do not see any prohibitions against doing so.

Yet using our case of the bloodletting as a precedent is extremely problematic, as it assumes that danger or assumed danger based on astrological factors is equivalent to physically observable danger.

While it is true that even “rationalists” such as Meiri (Shabbos 129b) seem to have believed that certain effects of the stars alignment were not supernatural at all but simply a part of nature, it would be almost impossible to entertain such a suggestion in light of today’s scientific knowledge.

Even if we assume that Chazal, or some Chazal truly believed in the power of the stars, and even if we ourselves followed that belief to the extent that Chazal seem to have permitted doing so, it is clear from the Gemara that the concern regarding blood-letting had to do with the general concern of things that go in זוגות (pairs,) and Chazal were very clear that in times where people were not concerned about them, their effect was also negligible (see Pesachim 110b.)

It therefore stands to reason that if דשו בו רבים (the people have ignored the concern,) the danger is simply not there anymore, and one can then rely on Hashem’s protection (why the term “fools” would then relevant, does admittedly required some explanation.)

However, with physically observable dangers, simply ignoring them does not make them go away at all- the risk remains the same.

As such, although for the others reasons mentioned above, it is clear that society-drawn lines in acceptable risk-taking certainly are a factor, it seems less clear that this particular case where the principle of דשו בו is mentioned could serve as any real proof for the existence of this line and where it be drawn

Despite the above, this sugya and its idea of כוין דדשו בו רבים, שומר פתיים ה seems to have become the gold standard for evaluating what risks are acceptable as part of daily life, and those of us who prefer to see the entire idea as metaphorical, in the line of Rambam’s usual methodology with such things, could perhaps simply relate to the entire precedent as metaphorical for publically accepted risk.

Our daf begins its long discussion on the subject of “mazal” with the views of two Amoraim, Rabbi Yehoshua ben Levi and Rabbi Chanina, who both hold that the time that a person is born plays a major impact on their personality and their future.

Rabbi Yehoshua ben Levi held that the day of the week on which a person was borne was the critical factor, whereas Rabbi Chanina held that it was the star/planet dominant at the time of birth that was significant.

One often-quoted example of the later, that has its origins here, is the idea that someone born under מאדים (Mars -the red planet) will be predisposed to spilling blood (note the reference to red or blood in its name.)

Rav Ashi comments that such a person could either be blood-letter, a thief (according to Rashi, a robber who kills people), a butcher, or a moheil.

Even if we follow a literal reading of this passage, It seems to follow from this comment that although Rabbi Chanina believes that a person’s personality is predetermined by his “mazal,” what he does with his personality traits is not preordained, and he may choose to use them for good or for bad. (I have taken the liberty of assuming that this is Rav Ashi’s intention, though it is also possible that Rav Ashi is not suggesting that a person has a choice in the matter, but simply that these are all possible things that a person’s fate might lead him to become if he was borne under this “mazal.”

The Gemara narrates how the leading Amora of his time, Rabbah, had objected to this claim of Rabbi Chanina, pointing out that he was borne under the mazal of “mars” and was certainly not a spiller of blood.

His student, Abaya, retorted that Rabbah himself had also punished and killed before.

The simple meaning of this is that it is a reference to Rabbah’s role as a judge, which we know from a recent daf (Shabbos 153) was known to have been particular uncompromising, to the point that the people of his home-town Pumbedita “hated” him.

Although there was no capital or corporal punishment in Rabbah’s time, and his main authority was in monetary matters and verbal rebuke (the later being stressed by Rashi over there,) it is possible that he made use of the permission given to the courts to hand out exceptional capital or corporal sentences when deemed necessary for the stability of society, a rule formulated (Sanhedrin 46a) as ב”ד מכין ועונשין שלא מן התורה .

Another possibility is that this refers to the case (Megila 7b) where Rabbah, while making a Purim feast together with Rabbi Zeira, attempted to follow the reported dictum לאבסומי בפוריא(to drink wine on Purim to the point of inability to distinguish between “cursed is Haman” and “blessed is Mordechai.”)

The Gemara related how he became inebriated, and in his stupor, slaughtered Rabbi Zeira, his co-host.

The Rabbis prayed for mercy and Rabbi Zeira survived (or came back to life, depending how the story is interpreted), but the lesson was learnt the next year by Rabbi Zeira, who declined Rabbah’s invitation to feast together once more.

If this is what Abaya was referring to, it could be that even if a person is able through his sheer greatness to completely control his predetermined personality to the point that it does not impact at all on his actions, it remains dormant and asserts itself at times when the person is under the influence.

It might be possible for those who reject there being any truth in astrology (the Rambam being the prime example) to interpret this entire sugya symbolically, and say that all reference to the stars or days of the week are simply metaphors for a person’s innate personality traits, which people cannot totally change, but can certainly direct towards good or bad.

However, the precise wording of the statements, and the continuation of the sugya, which brings various stories to illustrate the power of astrology and of tzedakah to change it, does seem to show that Chazal did indeed believe in it, even if they held it was forbidden to base one’s actions on it.

The Gemara brings the statement of Rabbi Chanina, that “mazal causes wisdom, mazal wealth, and יש מזל לישראל (there is Mazal for Israel.)

In contrast, Rabbi Yochanan rules in contrast that there is no “mazal” for Israel, a position that Rav Shmuel, and even Rabbi Akiva himself are then shown to have accepted.

The view of Rabbi Yochanan that “there is no mazal for Israel “could initially be understood in various ways:

i. The Jewish people simply do not believe in the power of astrology at all.

ii. The idea of Mazal does apply to people in general, but the Jewish people are completely unaffected by it.

iii. Although everyone can be affected by Mazal, the Jewish people are able to change their mazal through repentance and good deeds, such as giving צדקה (charity.)

The stories brought from Rav, Shmuel, and Rabbi Akiva respectively to illustrate and support the view of Rabbi Yochanan are both examples of cases where a Jewish person’s “astrology” predicted something, yet it did not come to pass.

Rav interprets the passuk ויוצא אותו החוצה (and he took him outside) to mean that Hashem took Avraham Avinu out of the limits of his astrological fate, which involved remaining childless, by realigning the stars so that they should let him have a child.

By deriving from this statement that Rav agrees with Rabbi Yochanan’s rule of אין מזל לישראל, the Gemara indicates that Rabbi Yochanan accepts the power of the stars, believes that even Jews are technically subject to it,

yet holds that when they deserve it, Hashem intervenes and changes their “mazal” in their favor.

The next story, involves the leading Amora Shmuel sitting next to a lake with Avleit, identified by Rashi as a non-Jewish wise-man and astrologer.

Some people headed into the lake, and Avleit predicted based on the stars, that a specific one of them would not return, but would be attacked by a snake and die.

Shmuel commented that if the man was Jewish, he would return safely.

The man indeed returned as Shmuel predicted, and they found a snake inside his bag, cut into two!

Shmuel asked him what he done to merit this miracle this, and replied by describing an act of chesed he had done.

Shmuel went out and used this case to apply the passuk וצדקה תציל ממות – “charity saves from death.” )Mishlei 10/2;11/4)

It seems clear from this story that Shmuel also believed that Jews were also subject to the power of the stars, but they could bypass this power through their good deeds!

A look at the final story, the famous case of Rabbi Akiva’s daughter on her wedding day, seems to reveal the same conclusion. As such, it seems clear why Rashi chose this rather limited way of explaining the idea of אין מזל לישראל.

Putting all the modern scientific evidence against the entire concept of the star’s power aside for a moment, the biggest issue with this belief comes from our own classical sources.

The Torah) Devarim 18/1) warns us against superstitious beliefs and practices, including מעונן , which is identified among others things (Sanhedrin 65b) as believing that certain times are good for certain things, something that sounds a lot like astrology.

Those who take a more literal view of our sugya need to address this prohibition, and show somehow that astrology is different, perhaps because it is a part of nature itself and not supernatural, an idea entertained at least for a short time by the Meiri (Shabbos 129b.)

Those who take this prohibition at face value and hold that it refers to astrology might differentiate between believing in the power of the stars, which is legitimate, and basing one’s actions on what they predict, which is not. They could hold that because a Jew is able to change his mazal through his actions, he needs to do exactly that rather than follow what his mazal says blindly.

This view is extremely problematic, seeing as a person has no way of knowing whether his deeds will be good enough to merit this intervention, and it is forbidden in any case to rely on miracles- after all, even Yaakov Avinu was afraid of Esav, according to Chazal (Brachos 4a) because he feared that his sins would stop him from meriting the divine protection promised to him.

How could one then rely on Hashem’s intervention and perform an action against his astrologer’s advice?

Alternatively, one could assume that the halachic sugyas that deal with the prohibition against astrology are the עיקר שמעתתא (main sugyos) and the largely aggadic sugyos that seem to assume the truth of astrology to be secondary, either viewing them as completely non authoritative or interpreting them symbolically in a way that they do not contradict the Torah’s disdain for such beliefs.

The former would be controversial, to say the least, and the later would require a great degree of creativity.

I should also be noted that the earlier sugya on daf 129b seems far from aggadic and seems to involve a halachik discussion as do some other sugyos on the subject.

Whereas Rashi on our daf and the Ramban (Devarim 18/9-12) clearly seem to accept the legitimacy of astrology in some way, taking the more narrow interpretation of Rabbi Yochanan’s dictum, a reading of the Rambam’s views on the subject (A.Z. 11/9 for example) will reveal that he takes the approach of completely negating any truth in astrology.

Identifying which approach he takes to dealing with all these sugyos that assume its truth, takes us out of the scope of this post!

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 154-155 Tzaar Baalei Chayim, foie gras and dogs

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In a previous sugya (Shabbos 128), we discussed the ruling of Rav Yehuda in the name of Rav that one is allowed to throw cushions down the steep edge of a stream on shabbos in order that an animal stuck inside can climb out, even though it is ruining the cushions, thus transgressing the rabbinical prohibition against making a כלי (useful item) unfit for its normal use.

The Gemara explained that this is because he holds that preventing cruelty to animals is a biblical requirement which overrides this rabbinical prohibition.

On Daf 154, The Gemara discusses ways of offloading muktza items from a donkey on shabbos, and amongst various opinions, brings the rather extreme story of Rabban Gamliel, whose donkey was loaded with honey containers.

Seeing as the permitted method mentioned in the Mishna of loosening the ropes and allowing the honey jars to fall on their own would have resulted in them breaking, he chose to wait until after shabbos.

By the time shabbos was over, the donkey had died from the strain of the load.

The Gemara asks why he did not simply put cushions one on top of another to absorb the blow so they did not break, and answers that this would have involved the above- mentioned rabbinical prohibition of ruining the cushions.

It then asks why he didn’t do so on the basis of preventing cruelty to animals, seeing as it was clear the animal was suffering, and answered that Rabban Gamliel was of the view that preventing cruelty to animals is only a rabbinical requirement and does not push off even rabbinical laws of shabbos.

We see that the idea that preventing cruelty to animals is a biblical requirement, something we took for granted in a previous sugya, is really subject to debate amongst the Tannaim, and none other than Rabban Gamliel himself, disagrees.

Although Rav, as the first of the Amoraim, was sometimes treated like a Tannaic sage and able to argue with other Tannaim (see for example Kesubos 8a,) it would be tidier to find a Tana that clearly holds that preventing cruelty to animals is indeed a biblical requirement.

Such a Tana has already been found on Daf 117a, where the Gemara attributes this view to Rabbi Yehoshua, at least as a strong probability.

The main discussion, however, can be found at the end of “Elu Metzius” (Bava Metzia 32b) regarding the obligation to help offloading the donkey of one’s neighbor.

There, Rava rules authoritatively that both Tannaim who discuss the matter, Rabbi Shimon AND the Chachamim, agree that צער בעלי חיים (preventing cruelty to animals) is indeed a biblical requirement.

Despite the above, when it comes to trapping and slaughtering animals for food, the Torah has clearly given permission to do so, and this overrides the requirement of preventing cruelty to animals.

The generally accepted opinion amongst later authorities, is that this applies to other genuine human needs as well – after all using animal’s for their hides was a regular and accepted practise to the point that tanning is even one of the forbidden melachot on shabbos.

Nevertheless, certain particularly cruel actions, such as plucking feathers from living birds for use as quills, though not forbidden, have been condemned as being unnecessarily cruel, and strongly discouraged (See Rema E.H 5/14)

It is also important to that this dispensation might well be limited to essential human needs, and not recreational pleasures. One later authority who specifically limits this allowance to “essential needs” is the Aruch haShulchan (E.H. 5).

Hunting, even fishing, for sport, are not essential human needs, and do not match the precedent set by the Torah by default.

As such, they also might be forbidden due to the biblically requirement to prevent suffering from animals, and even later authorities such as the Noda Bayehuda (Volume II Y.D. 1) who argue that they do not fit into the biblical law, condemn “hunting with rifles” as cruel behaviour not fitting for the Jewish people.

One of the more controversial questions in contemporary kashrus relates to the force-feeding applied to geese in order to enlarge their livers for the production of foie-grass, a French delicacy prepared from such livers.

Another relates to the force-feeding of young calves with surplus liquids and insufficient solid foods in order to fatten them quickly for slaughter and give the flesh the white look that is typical of “white-veal,” also a delicacy.

Are such luxurious items really in the category of essential human needs that justify such excess cruelty, assuming the truth of claims that they indeed suffer excessively from this (a debate I do not have enough information to address right now?)

The Mishna on our daf (Shabbos 154) refers to various force-feeding methods applied to camels, calves, and fowl, and other than issues relating to shabbos law does not seem to consider them a violation of tzaar baalei Chaim.

It requires further study to assess precisely what methods are being referred to, and what the need for them was, but if the calves were indeed being force-fed for early slaughter, there could possibly be some precedent here for considering qualitatively tastier delicacies such as veal being enough of a need to allow this excess cruelty.

In practice, Rav Moshe Feinstein (E.H. 4/92) banned production and consumption of white veal in his day, based on his view that the white color of the veal are not considered legitimate needs to cause such cruelty, and neither is the profit of the people who produce it- a careful study of this teshuva is required in order to see precisely where he draws the line.

In contrast, goose-liver has been a very popular product amongst Jews for centuries and the main issues raised with it at various times appear to have been kashrus based and not due to concern for the animal’s welfare.

This could be because unlike white-veal, the foie gras is not just aesthetically more pleasing, but also has its own superior flavor and texture which is considered more of a need than simple aesthetic factors, or it could be because the level of cruelty was not viewed by halachik authorities as being on the same level.

Or possibly, it is because this was the main source of kosher fat available for Jews in Europe for most of history, and it was thus considered a truly essential product.

Either way, unless there is truth in the claims of those who say that recent improvements in legislation have lowered the distress level into the normal acceptable limits, or that the geese do not really suffering from this feeding, it seems pretty clear that in today’s time where we have many sources of fat and such a huge variety of both basic and luxury food-products, the tzaar baalei chayim factor should be considered- it should certainly be included in the general condemnation of excessively cruel behavior even for legitimate needs, which we have brought examples of.

Could the same argument perhaps be made against eating meat in today’s times and wearing clothes from animals slaughtered for that purpose, given that there are so many alternative sources of protein and general nutrition, as well as clothing? Probably not, but that is for a different discussion.

One more related idea I would like to discuss from our daf is the question of how we relate to dogs.

There is much condemnation (Shabbos 63a) of people who raise and keep “bad dogs” due to the fear they cast on poor people coming to ask for charity, and (see sugya in Bava Kama 83a ) due to the harm and fear they cause to pregnant women, and people who raise dogs are even compared to those who raise pigs.

Yet on our daf, we are told that unlike pigs, whose welfare we are not responsible for (due to the prohibition of raising pigs, as per Rashi, and because they have plenty to eat) we are responsible for the welfare of dogs and may thus feed them on shabbos.

This responsibility seems from our daf to extend to stray dogs too, who are considered to suffer the epitome of poverty (לית דעניא ככלבא) and should be fed by us, albeit in the fields and not in town, in order not to encourage them to keep coming back and bothering people.

There is much to discuss about the seemingly different views in Chazal that relate to raising and keeping dogs, as well as the practical halacha, but we will leave that for another occasion, Hashem willing.

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 152-153 Are the dead aware of what we do?

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At the bottom of daf 152, Rav Yehuda tells us that if a dead person has no comforters, we need to get together 10 people during the mourning period and sit at his grave.

Rashi explains that this is referring to someone who has no relatives mourning him, and thus no people coming to comfort them.

The implication of Rav Yehuda’s ruling is that the comforting mourners that we perform is not only done to make the mourners feel better, but also to “comfort” the dead person during his transition to the afterlife.

The Gemara brings a case where someone died in Rav Yehuda’s neighborhood.

They brought 10 people to his grave for 7 days- at the end of the 7 day mourning period, the dead person appeared to Rav Yehuda in a dream and told him that his mind could now be at rest, seeing as he had put his mind at rest.

Rabbi Abahu then makes the incredible statement that whatever is said in front of a dead person can be heard by him, until the grave is sealed.

Another view is brought that he can hear everything said in front of him until the flesh of the body has disintegrated inside the grave.

Towards the end of the daf, the Gemara relates how a heretic once confronted Rabbi Abahu and asked him about our belief that the souls of the righteous are buried under Hashem’s throne of glory.

If this is indeed true, said the heretic, how could the sorcerer have brought back the prophet Shmuel from the dead, as accounted in Shmuel I 28- how could his calls be heard from so far away?

Rabbi Abahu answered that this was done during the 12 months after death, when the body has not yet disintegrated, and the soul still moves up and down between the gravesite and the throne of glory.

The idea that the soul somehow remains tied to the body as long as it has not disintegrated and keeps getting pulled back to the grave sounds bizarre enough and rather chilling indeed, but Tosfos is not content even with this.

Based on other sugyos, Tosfos claims that even after 12 months, when the soul has found its rest, it can still come back to the gravesite and hear what is going one there when it so desires.

The Gemara then makes another statement which seems to imply that a person can tell by listening to his own eulogies whether he is going to the world to come or not.

This is dependant on how much people cry for him, once aroused to do so by the person delivering the eulogy.

Abaya then asks a rather shocking question of his Rebbe, Rabbah, the leading sage of the time.

He asked how Rabbah would be able to tell at his funeral if he was going to the world to come, seeing as everyone in his hometown of Pumbedita hated him!

The idea that the Torah leader of the generation could be hated by the people might sound crazy to the modern mind, but Tanach and the rest of Jewish history are unfortunately full of such cases where the people resent their leaders for rebuking them and speaking truth to power.

Rashi explains that the people of Pumbedita were particularly dishonest and got into a lot of trouble in court with Rabbah.

It is even more bizarre to imagine that the leading Torah center of Babylon was filled with dishonest people who hated their Torah leader, but once again, unfortunately this is not such a novel phenomenon in our history.

We often have the worse situation where Torah leaders are exploited by the corrupt masses and unable to stand up to their pressure, but here, we how the leading Amora of the period stood up to them, like the prophets Yeshayahu, Yirmiyahu, Amos, and other like them had done, and paid the price in terms of popularity.

Seemingly unphased by the question, Rabbah replied that Abaya himself and another sage called Rabbah bar Rav Chanan would deliver such effective eulogies that even those people would be stirred to tears, and that would be the sign he needs that he is going to the afterlife.

The idea that the dead are conscious of what is happening in this world, particularly at the site of the grave during the 12 months after death, is far from taken for granted in Torah sources.

The passuk (Koheles 9/5) says: והמתים אינם יודעין מאומה – “the dead do not know anything.”

In discussing the prohibition against saying words of Torah not related to the dead person at a grave, in order not to mock the dead, the Gemara (Brachos 18a ) questions this entire prohibition based on the above possuk- after all, if they do are not conscious of what is going on even at the grave-site, why should it matter to them if one learns Torah there?

After a long discussion, the Gemara fails to come to a conclusion in this matter, but does seem to hold that at least in matters that affect them, the dead are aware of what is happening, which would solve the issues raised in our sugya.

The Gemara (Taanis 16a) asks why we visit graves on fast days, and two answers are given.

The one answer given is that it is a way of declaring to Hashem that we are like the dead in front of him (totally lifeless and unable to help ourselves.)

The other answer given is that it in order that they will ask for mercy on our behalf.

Although even the first answer does not suggest that we direct our prayers at the dead themselves (something highly problematic), it does suggest that our presence at their graves somehow gets them to intercede on our behalf, something which seemingly would require them to be aware of what is happening at their gravesite, even after the initial 12 month period.

The author of the second answer, in contrast, might not be comfortable with the idea of the dead being aware of our visit, or alternatively, believe that even if they are aware, they are unable to pray on our behalf- “לא המתים יהללו קה”- the dead do not praise Hashem (Tefillin 115/17), nor do they perform other commandments such as praying.

For him, the visit might be less about invoking the assistance of the dead and more about humbling ourselves before Hashem.

Shabbos 150-151 לפני עור, work done by a non-Jew on shabbos, and שבות דשבות re-examined

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On the previous daf, the Mishna taught us that it is forbidden to hire workers on shabbos or to ask one’s friend to do so on one’s behalf.

Although hiring workers does not involve any specific melacha as such, Rashi explains that it goes against the passuk in Yeshayahu (58) which tells us to honor the shabbos and refrain from weekday activities and discussions, namely a “rabbinic” prohibition.

The Gemara ask why it is necessary to forbid asking one’s friend to do so- after all, he is equally obligated in the laws of shabbos!

Rashi understand that because he is equally obligated not to engage in weekday conversation, telling him to do so goes under against the prohibition of “putting a stumbling block in front of the blind,” interpreted by chazal among others things to refer to causing someone to sin)A.Z. 6b.)

It requires some analysis to determine whether one can transgress the biblical command against causing someone to sin by causing him to do something that is only rabbinically prohibited.

It could be argued that a rabbinical sin is not a stumbling-block on a biblical level and one can thus not transgress this prohibition if the sin one causes him to do is only rabbinical in nature.

On the other hand, one could argue that the prohibition is not specifically against causing someone to sin on a biblical level, but on putting a stumbling block in front of him on any level, and a rabbinical prohibition, once forbidden by Chazal, is certainly a stumbling block.

The irony would then be that hiring workers oneself on shabbos might only be a rabbinical prohibition but asking one’s friend to do so would be a biblical prohibition!

The way Rashi understands our Mishna seems to be a proof for this later understanding as he says explicitly that asking one’s friend to hire workers involves the prohibition of putting a stumbling block in front of the blind.

Whether the Gemara itself is a proof for this depends on whether there are any other legitimate ways of explaining why this should so obviously be forbidden.

It is of course possible that Rashi means that he transgresses the prohibition of “putting a stumbling block before the blind” on a rabbinic level, but we would need some precedent for such a thing for this argument to be convincing.

There are indeed times when chazal refer to transgressing a biblical prohibition and mean it on a biblical level (see for example Rashi Sanhedrin 82 regarding נשגז )but for Rashi to claim that this is such an example without saying so explicitly would seem unusual.

Perhaps the act of telling one’s friend to hire workers itself goes against the prohibition of weekday conversation?

However, this is not likely, seeing as the Gemara answers that the Mishna is needed to tell us that even asking a non- Jewish friend to do so is forbidden.

It answers that we already know that too, as it falls under the shvus (rabbinical prohibition) of אמירה לנכרי (asking a non-Jew to perform a forbidden melacha on shabbos.)

If telling someone else to engage in a weekday conversation was also considered weekday conversation, there should be no different between asking one’s Jewish friend or one’s non- Jewish friend

If yesterday we dealt with the general prohibition against telling a non-Jew to do melacha on shabbos, today’s daf deals with work which a non-Jew has done on his own initiative on shabbos.

The rule of the Mishna and accompanying Gemara is that if he performed it for his own benefit or for that of another non-Jew , one may benefit from it, whereas if he did it for a Jew, one may not.

The Mishna gives an example of a non-Jew who brings a reed-based wind instrument on shabbos to play during the eulogies for a Jew who died and is to be buried after shabbos.

It rules that it may only be used if it was brought from inside the techum (area in which walking is permitted on shabbos.

It then discusses a case where a non-Jew dug a grave or made a coffin on shabbos and It is now wanted for burying a Jew after shabbos.

It rules that if it was done for a non-Jew, it may be used for a Jew, but if it was intended for burying a Jew, he may not ever be buried in it.

The general rule coming out of the Mishna seems to be that it is permitted to benefit from a melacha done by a non-Jew on shabbos only if the non-Jew did it for himself or another non-Jew.

If he did it for a Jew, even without being told to do so, it may not be used.

The question is for how long it might not be used: in the first case of the reedpipes, the Mishna does not say that they may not ever be used again for a Jew (though see Rashi who does make this assumption.)

Yet in the second case of the grave/coffin, it says that they may never be used, at least for the Jew they were made for.

Perhaps the distinction lies in the fact that walking outside of the techum is only a rabbinic prohibition according to the view of this Tana (this is a dispute in various places, see Beitza 36: for example.)

On the other hand, making a coffin or grave is a biblical prohibition.

If this distinction is correct, we would conclude that if a non-Jew performs a biblical melacha for a Jew on shabbos, he may never benefit from it, but if he only performed a rabbinic prohibition , he may do so.

However, the assumption that the non-Jew who brought the reed pipe from outside the techum has only performed a rabbinically forbidden act is highly problematic for various reasons.

  1. Even if walking from outside the techum is only rabbinically prohibited, carrying an item from outside also involves the biblical melacha of הוצאה ( transferring something from one domain to another.) – If there was an eruv, there would not be an issue of the techum either.

One could answer that the Mishna is dealing with something brought through a non-built up area that is not defined as a private or public place , but a כרמלית, which too is only a rabbinical prohibition, but one would still be faced with the question why the important factor is whether it came from outside the techum and not whether a biblical or rabbinical melacha of carrying was performed. The Tosfos and other Rishonim deal further with this issue., but I will move on.

  1. We have learnt many times that according to most views, it is permitted to ask a non-Jew to perform an act that is only rabbinically forbidden on shabbos for the sake of a mitzva (שבות דשבות לדבר מצוה) .

We have seen that some later authorities understand that this principle even permits a Jew to himself perform an action that is only rabbinically prohibited for 2 independent reasons for the sake of a mitzva.

If so, seeing as the instrument is being used for the mitzva of כבוד המת (honoring the dead,) a truly great mitzva, and leaving the techum is only rabbinically forbidden, surely it would have been permitted to ask the non-Jew to bring it lechatchila on shabbos to avoid delaying the burial afterwards?

It is true that the Tosfos are of the view that this principle does not apply to any mitzva, but only certain special mitzvas mentioned explicitly such as circumcision and settling the land of Israel, and this could be a proof for this view, but this not the view of most authorities including the Rambam.

  1. In any case, the distinction we suggested between biblical and rabbinical melacha performed by a non-Jew would not survive the Gemara’s discussion of this Mishna.

The Gemara, for a different purpose ( establishing the law in a case where it is not certain if the non-Jew performed the melacha for a Jew or a non-Jew ) compares this to a different case, where a bathhouse is heated by a non-Jew on shabbos for whoever comes.

The ruling in that case is that if the bathhouse is in a place with a non-Jewish majority, we assume that it was heated for non-Jews and a Jew may bath there immediately after shabbos.

If the majority or even half the people the bathhouse serves are Jewish, then a Jew must wait כדי שיעשה (the time it takes to heat the bathhouse) after shabbos before using it.

Heating the bathhouse clearly involves at least one biblical melacha, lighting the fire and perhaps heating the water, depending on the temperature it reaches, yet the prohibition to use the bathhouse is limited to the period of כדי שיעשה and not forever.

Perhaps the real distinction lies in who the object of the forbidden action is going to serve. In a case where the non-Jew had a specific Jew in mind as the beneficiary of his actions, such as the case of the grave or coffin, that Jew may never benefit from his action.

On the other hand, other Jews, may benefit from it after the period of כדי שיעשה, and in a case where he had no specific person in mind, like the bathhouse and possibly the reed-pipes, any Jew may benefit from it after the period of כדי שיעשה .

These issues form the subject of long and major discussions in the Rishonim before the final halacha is determined- I have just come to take you through a preliminary analysis I have done on my own, in order to open the subject for further study.

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 149 Gambling in Halacha and opening function-halls during the Corona Crisis

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The Mishna at the bottom of 148b tells us that it is permitted to cast lots with one’s family members on Shabbos to see who gets which portion, which will presumably prevent fighting over them.

I happen to be particularly sensitive to my children fighting over food portions, and am rather strict in insisting they avoid doing so, after all is it really fitting for thankfully relatively well-off children to be fighting with each other over who gets the thicker piece of salmon when so many people are hungry?

It is appropriate behaviour for frum children in the first place, even if they are relatively poor?

Yet this seems to be an old problem amongst kids and Chazal took a realistic view to dealing with it- rather than ignoring the problem or tackling it head on, they suggested a simple fair solution.

However, despite the lofty goal of keeping peace in the home, the Mishna attaches a key condition- one may not intentionally make one portion larger than the other and draw lots on the larger portion- one has to at least attempt to make the portions equal.

The Gemara rules that drawing lots on different sized portions is forbidden even during the week because of קוביא (gambling.)

The Mishna (Sanhedrin 24b) includes a gambler in the list of people who are unfit to be witnesses.

Rabbi Yehuda comments that this is only the case when the gambler has no other trade/profession other than gambling.

It is not immediately clear whether Rabbi Yehuda and the Chachamim disagree on this point, or whether Rabbi Yehuda is simply clarifying the position of the Chachamim.

The Gemara asks what issue the Mishna has with a gambler, and 2 opinions are given:

  1. Rami bar Chama explains that gambling is a form of אסמכתא (a transaction based on incorrect assumptions) which are not valid.

He seems to argue that when a person gambles, he is convinced psychologically that he will win, and it is on that basis that he agrees to the terms of the bet/lottery.

Although this might seem far-fetched, this is particularly common with habitual gamblers whose addiction keeps pushing them to try “one more time.”

When he fails to win, the transaction is invalid, and the winner is considered a form of thief if he takes the money.

Rav Sheishes disputes this ruling and holds that such a transaction is not a valid example of אסמכתא seeing as the gambler is still fully aware that he might lose and chooses to take the chance.

He explains that the reason the gambler is not fit to testify is not because he has committed a form of theft, even at a rabbinical level, but because he isn’t עוסק בישובו של עולם (he does not busy himself with “settling” the world.)

This fits in with Rabbi Yehuda’s view in the Mishna that only a gambler who has no other profession is unfit to be a witness.

According to this view, while gambling might not be a prohibited act as such, it is a non- constructive profession that does not help build society in a positive way.

A person who does not engage in a constructive profession is simply not a trust-worthy witness, perhaps because he does not take people’s needs and property rights seriously enough.

There is much to analyze and debate, both in the text of the Gemara and in the Rishonim, regarding the scope of both אסמכתא and ישובו של עולם , as well as the reason and nature for the gambler’s disqualification as a witness, but we will focus for now on what appears to be the most simple interpretation of the debate:

According to Rami bar Chama, and the Chachamim of the Mishna according to his view, anyone who gambles is unfit to be a witness as he is a form of thief.

According to Rav Sheshet, and Rabbi Yehuda in the Mishna, only a professional gambler with no other profession is unfit to be a witness- in contrast, the casual gambler has done nothing wrong and is certainly fit to act as a witness.

Back to our sugya in Shabbos, it seems that our Gemara holds like Rami bar Chama that gambling is indeed forbidden even if one has another profession.

As it is usual in case of a debate in one sugya where the סתמא דגמרא (undisputed assumption or ruing) in another sugya supports one side , it thus seems appropriate to rule like Rami bar Chama and forbid even casual gambling, as well as disqualify the casual gambler from being a witness, until he has repented and stopped gambling.

Furthermore, a different Mishna (Rosh haShana 22a) gives a similar list of people who are invalid as witnesses, and does not record the lenient view of Rabbi Yehuda- the Gemara there understands that they are all forms of rabbinical theft, which seems to support the view of Rami bar Chama as well.

This is indeed the way the Rambam (Gezeila veaveida 6/10, Mechira 21/3) appears to rule (though compare Eidus 10/4 and Shabbos 23/17) and the Shulchan Aruch (C.M gezeila 370/1-3) is also generally understood to take this view.

However, based on the continuation of the sugya in Sanhedrin, it is clear that some Amoraim are of the view that Rabbi Yehuda and the Chachamim agree that casual gambling does not disqualify one from testifying, and even though Rami bar Chama disagrees, there is some logic in following those Amoraim who do not see the Tannaim of the Mishna as arguing, particularly as both Rabbi Yochanan and Rabbi Yehoshua ben Levi take that view.

This is the way that the Tur and the Rema rule, essentially making normative Ashkenazi halacha more tolerant of casual gambling- interestingly enough, the Rif also takes this lenient view, and it is somewhat surprising that the Shulchan Aruch rules like what is really an ambiguous Rambam against a clear Rif and Tur.

However, there is another way to reconcile the sugya in Shabbos that forbids casual gambling with the view of Rav Sheishes in Sanhedrin who says that it is not considered אסמכתא and does not disqualify one from being a witness.

We could suggest that even Rav Sheishes agrees that casual gambling is rabbinically forbidden. However, he holds that it is not enough of a sin to disqualify one from being a witness.

Instead of rejecting the prohibition of casual gambling completely, Rav Sheishes’ statement would then simply be interpreted as pointing out that it does not qualify as אסמכתא on a biblical level.

He could thus still hold that only a professional gambler with no other profession is included in the Mishna’s disqualification, without permitting casual gambling.

If we learn like this, our sugya in shabbos could also work according to Rav Sheishes- casting lots on different sized portions is indeed a form of gambling and rabbinical theft and thus forbidden even during the week, but might still not be something that would disqualify one from serving as a witness.

This approach would make it easier to rule leniently like Rav Sheishes and only disqualify professional gamblers as witnesses, but would at the same time be taking a stricter form of Rav Sheishes’ view and concluding that even he agrees that casual gambling is forbidden, shutting the door on permitting casual gambling.

Could this possibly be the real view of the Rambam, some other Rishonim, or even the Shulchan Aruch?

It certainly would help reconcile the above-quoted view of the Rambam that gambling is forbidden as a rabbinical form of theft with his words elsewhere which say that only the professional gambler is unfit to be a witness.

This is indeed close to the approach of the Vilna Gaon, who actually deletes the phrase כל כי האי גוונא לאו אסמכתא הוא from the sugya in Sanhedrin and seems to understands that Rav Sheishes agrees that it is indeed a rabbinic form of theft, just not enough to disqualify one as a witness.

In practise:

Most contemporary Sephardi authorities forbid all forms of gambling including lotteries and consider them a form of theft.

Most mainstream Ashkenazi authorities, while discouraging gambling, do not forbid it out-right on a casual basis.

All authorities agree that someone whose sole profession is gambling is unfit to be a witness.

Mussar:

The idea that the professional gambler is unfit as a witness because he is not engaged in constructive pursuits, is understood in various ways in the Rishonim, and a more complete analysis of the subject obviously requires a through study of all these views.

Yet I cannot help but be bothered by the idea that the modern-day wealthy philanthropist who owns many casinos, employs huge numbers of people, keeps the laws of the land with everything on the books, and supports countless charitable causes, including many Torah institutions, could be invalid as a witness if this is the main way he made/makes his money.

Can he truly be regarded as someone who does not respect other people’s money, and is likely to lie under oath, when he clearly does so much good for society as well?

Without ruling on this issue, given that this does in fact appear to be the default law, there appears to be a powerful message behind this halacha- not only does the end not justify the means, the means doesn’t even justify the means!

A profession which does so much damage to society as a whole and ruins countless lives cannot be justified simply because it creates work for many other people, or because so many of the proceeds go to charity.

Although it is questionable whether this concept could be extended on a halachik level to other areas of business that do more harm than good to society, such as cigarette manufacture and sales, and possibly even alcohol, at an ethical level there is certainly a comparison.

Just like it is clear, or at least has been till recently, that people who sell dangerous drugs are not to be praised just because they create employment for others who work for them, or give some of the proceeds to charity, anyone engaged in industries that are mainly harmful to the public should be very aware of the serious ethical and probably halachik issues they face.

Current Affairs and food for thought:

During the current Corona Crisis in Israel, one of the justifications for allowing high-risk businesses such as function-halls to reopen, is the fact that they employ many people and help support the economy.

If these events are essentially endangering society’s well-being, are these arguments not irrelevant , and should we not say that people who open such businesses at this dangerous time are at least on an ethical level, not involved in constructively building the world?