Pesachim 50-51 When is a minhag binding?

In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l, whose love of Torah, passion for justice, and acts of kindness inspire everything I do.

Much of modern Jewish practise involves extra-halachik customs which have developed between the time of the Gemara and now, and a thorough analysis of the scope and authority of such “minhagim” is required.

Whereas the authority of rabbinic law is based on biblical law, the authority of customs taken on by an individual, family, or community seemingly lack this  strong grounding, and needs to be sourced and defined.

In the opening Mishna of chapter 4, we see that at least certain types of minhagim are grounded in rabbinic law.

The Mishna takes for granted the prohibition of performing work after midday on Pesach eve (a discussion in its own right) and discusses the custom followed in some places to forbid it even before midday, ruling that each place needs to follow its own minhag in this regard.

It then addresses an individual who comes from a place with one custom, who is currently in a place with a different custom.

Here, the ruling is that a person must keep the stringencies of  his place of origin as well as those of the place he is currently in.

That means that such a person will need to avoid work on erev pesach either way, either because that is the custom of the place which he came from, or because it is the custom of the place where he currently is- both customs are binding on him.

The Mishna then adds that one should never act differently to the מנהג המקום  (the custom of the place where one is ) because of מחלוקת  (conflict.)

An initial analysis of this case in the  Mishna reveals that

  1. No mention is made as to whether the relocation is temporary, as in a visit, or permanent.
  2. There seems to be an inherent contradiction between the need to keep the stringencies of both places, and the need not to act contrary to the customs of the place one is in. For example, if a person comes from a place where work is not done the whole day  to a place where it is done before midday:
  3. The first rule implies that one must refrain from work in deference to his own custom
  4. The second rule implies that one should not refrain from work in order not to “stick out.”
  5. The case in the Mishna refers to a stringency practiced in a certain place. In cases where an actual rabbinic prohibition applies in one place and not in another, or where one place follows a different opinion regarding the עיקר הדין  (actual law) that the other, it is not clear yet whether the same principles apply.

When one examines the סיפא (last case) of the Mishna, one sees that this principle applies to a related though possibly different situation too.

This case revolves around the prohibition of eating produce of the שמיטה (sabbatical year) after that species is no longer available in the fields, before performing a procedure called בעור  (removal.)

The Mishna rules that if one takes such produce from a place where it is no longer available in the fields to a place where it is still available or vice versa, he must be stringent and perform בעור, in deference to either the practise in the place from whence he came or to the practise in his current location.

In this case, it is not simply a question of one locale taking on a certain stringency and not the other.

Here, the עיקר הדין  requires those in the one locale to perform בעור  on that specific species, whereas there is absolutely no reason for those in the other locale to do so yet.

One can also note that if the produce comes from a place where בעור is already required, the obligation might have already fallen on the produce ( in Brisker terms חיוב הבעור כבר חל על החפצא.)

Yet despite these essential distinctions, the same principle seems to apply, something we will hopefully return to in later posts.

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At the bottom of Daf 50, the Gemara discusses a different custom.

The people of ביישן  had the custom to avoid sailing from the port of צור  to the port of צידון  on erev shabbos, despite their proximity and the commercial need  for them to be there for the market day in צידון.

This was clearly an extra stringency not required by law, and Rashi explains that this was to avoid neglecting their shabbos preparations.

The next generation approached Rabbi Yochanan asking him to let them off this stringency, seeing as unlike their fathers, they were unable to cope with it.

He answered that their fathers had already accepted this stringency, and it was binding upon them, based on the verse “שמע בני מסור אביך ואל תיטוש תורת אימך”    (Mishlei 11- “Hear my son the “Mussar” of your father and do not forsake the Torah of your mother.”)

Unlike the case in the Mishna, which deals with מנהג המקום  (the customs of the place,) this case seems to be an example of מנהג המשפחה (a family custom.)

Despite the above, it is not immediately clear whether this ruling applies only while they continued to live in ביישן, or whether they would still be bound by it even after moving to a different place with no such stringency.

The Gemara moves on to discuss a different custom, this time a stringency of the people of חוזאי, who used to separate חלה  from rice.

When Rav Yosef was told about this, he ruled that a זר  (non kohain( should deliberately eat it in front of them (to make the point that חלה  taken from rice is NOT חלה!)

We are immediately faced with the question why this is different to any other מנהג המקום  (local custom) which needs to be respected, as in the previous cases we have discussed.

Abaya questions Rav Yosef’s ruling based not on our Mishna or the case with Rabbi Yochanan, but on a related halachik principle.

This is the rule of “דברים המותרים ואחרים נהגו בהן אסור אי אתה רשאי להתירן בפניהם”  – permitted things that others have forbidden to themselves may not be permitted by you in front of them.

As such, how could Rav Yosef permit a non-kohain to eat what the people of this town treated as חלה  in front of them?

Rav Yosef responded that Rav Chisda had already ruled that the above principle only applied to כותאי  (Samaritans,)  who already made light of rabbinic law and who might be led to further leniency by such actions, to which Abaya retorted that these people were like כותאי  – Rashi explains that this was due to their ignorance.

Due to the above, Rav Ashi qualifies  Rav Yosef’s ruling to only apply to a place where most of the people eat grain products.

In such a case, the concern that allowing a non-kohain to eat the rice “חלה”  In front of them would cause them to practise further unjustified leniency is mitigated by the risk that they would land up using rice as חלה  for grain, a very serious action which would result in them eating טבל.

As such, this was a stringency that could lead to sin, and needed to be crushed!

However, in a place where most people ate rice and there was no such concern, one should not undermine their stringency, as it had the benefit of helping them remember the laws of challah!

At first glance, this seems to be a typical example of stringency not required by law.  However, it is also possible that their “minhag” was to follow the halachik opinion of רבי יוחנן בן נורי  who considered rice to be a form of grain (Pesachim 35a), which would make this an example of a custom to follow an already existing stringent halachic opinion, not just a new practise without halachic precedent.

The Gemara proceeds to bring 3 other examples of minhagim where the rule of דברים המותרים…  applies, pointing out that all 3 cases involved בני מדינת הים  (“overseas” people) who due to their lack of proximity to Torah centers, were also ignorant and treated like כותאי  regarding this law.

It seems clear that whereas no distinction is made between ignorant and learned people in the case of our Mishna and that of בני ביישן, the rule of דברים המותרין  is limited to ignorant people, suggesting that two or more very different principles regarding the source and  authority of minhagim are at play here, despite the relationship between them implied by their proximity in the sugya.

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The Gemara near the bottom of daf 51a brings yet another example of different customs.

This case revolves around דייתרא , a kind of fat that was treated as permitted in the land of Israel but not in Bavel.

It relates how רבה בר בר חנה  came from Israel to Bavel and continued to eat this fat, in accordance with the custom of Israel.

When רב עוירה סבא  and רבה בריה דרב הונא  came in, he quickly covered it up, so that they should not see him eating it.

Abaya, understanding that this was due to the rule of דברים המותרים … commented to them that רבה בר בר חנה  was obviously treating them like כותאי, further proof that this rule only applies to  ignorant people, but also very telling us what standards Abaya believed רבה בר בר חנה  applied to the definition of “ignorant” in this regard !

At this point, the Gemara finally relates to the principle of our Mishna and asks how רבה בר בר חנה could ignore the מנהג המקום and eat the דייתרא  even while he was by himself.

Whereas the rule of דברים המותרים… only applies לפניהם  (in front of those who are stringent,) it seems that the Gemara holds that the rule of the Mishna, namely following the stringencies of both places, applies in private as well.

Whereas Abaya answers differently, Rav Ashi answers that רבה בר בר חנה  intended to return to Israel, and in the absence of the concern of דברים המותרים…, the stringencies of Bavel were not yet binding on him!

With this distinction, Rav Ashi shows how he has interpreted the rule of “being bound by the stringencies of the place one has come to” as only applying to one who has relocated permanently.

Until one has permanently relocated, one is not personally bound by the stringencies of the place one is merely visiting, but simply needs to be careful not to “permit them” in front of the locals, if they are ignorant.

It is not immediately clear what the law would be where a person from a stringent locale permanently relocates to a lenient locale .

Would Rav Ashi go so far as to extend the rule that one goes by one’s permanent place of residence even to the leniencies of one’s new place, or would he require one to keep the stringencies of one’s previous abode even after permanently resettling?

The key to this and other unresolved issues that we have raised can be found in other sugyas on the subject, and will hopefully be discussed in our next post, in relation to second day Yom-Tov.

To sum up what we have seen so far, there are various  principles on which the authority of minhagim are based:

  1. מנהג המקום  (the local minhag) binds all inhabitants (the Mishna.)
  2. One who relocates is bound by the stringencies of his old place and of his current place (the Mishna) but this rule might depend on the nature of one’s relocation (as per Rav Ashi)
  3. One should not act contrary to local practise מפני המחלוקת  (the Mishna)
  4. A family minhag can be binding, based on the passuk in Mishlei. (the case of בני ביישן )
  5. Even where one is not bound by local stringency, one should not be lenient in front of the locals, if they are ignorant, due to the rule of דברים המותרים  .

The scope, authority, and interaction between these principles has been partly discussed already, and will hopefully continue in the next post, but it is clear that before one is able to define clear rules regarding the types of minhagim that are binding and under what circumstances they are binding, a thorough understanding of the above and any related sugyas needs to be obtained.

Not every custom is binding under all or any  circumstances, but the concept of certain customs being binding is well grounded in numerous Talmudic principles.

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