Eruvin 72  The power of permission- כח דהתירא עדיף

 
As Newton taught us, every action has an equal and opposite reaction.
While this might apply not only in physics, when it comes to human societal behaviour, non-equal and overreaction is also common.
The Rambam (Deos 1,2) teaches us that a person should avoid extreme characteristics and rather aim for the “golden mean.”
For example, a person should not be so emotional that he is angered by everything, yet he also does not have to be emotionally cold like a piece of wood in that he feels nothing.
He should not be so careful with his money that he is scared to spend anything but should also not be such a spend-thrift that he just gives or throws everything away.
The Rambam also notes that it is sometimes necessary for a person to move to the opposite extreme of an attribute that he has obtained an extreme dose of, in order to eventually reach an equilibrium and return to the middle path of balance.
When it comes to the question of how strict to be when it comes to disputes or “grey areas” in halacha, or how many voluntary “chumras” (stringencies) to take on, there is also a wide spectrum in the behaviour of observant Jews.
Some tend to be extreme in their observance, always choosing the strictest view as well as taking on any extra voluntary stringencies they can come up with.
Others, tend to take a minimalistic approach, always choosing the most lenient approach and avoiding anything that might not be an absolute obligation, even if it has some religious value.
Although we find a range of approaches amongst our greatest Rabbis as well (Beis Hillel and Beis Shamai perhaps being the greatest example, and of course we rule like Beis Hillel, though not necessarily for that reason) the accepted approach amongst Chazal seems to be somewhere in-between, the general rule being in cases of doubt or unresolved dispute, we are stringent in biblical matters and lenient in rabbinical matters.
However, on our daf, as well as numerous other places in the Shas, we find a rule that many have taken (whether correctly or incorrectly is subject to debate) as a call to look for leniencies wherever possible.
This principle is referred to be Chazal as כח דהתירא עדיף- the strength (or scope)  of permission is preferred.
It is important to note that many  cases in Shas that involve this principle seem to follow a similar basic pattern- it is a little complex, but please bare-with me, as understanding this structure is essential to understanding this sugya, many others, and the very principle that is the subject of this post.
Stage 1 : We start with a debate regarding a certain case, between two authorities, where the one (let us call him “Rabbi X”) permits or validates something and the other (let us call him ”Rabbi Y”) forbids or invalidates it.
Stage 2 : The Gemara then focusses on the precise conditions under which the debate applies, and someone suggests that under seemingly less stringent conditions, even the stringent opinion would be lenient (or under seemingly more stringent conditions, even the more lenient opinion would be stringent.)
Another view might then counter that the debate applies to both the seemingly more lenient and seemingly more stringent case.
 
Stage 3 : The Gemara then brings a Beraita, Mishna, or other authoritative text that seems to show that the debate only applies under the more stringent (or lenient) conditions, thus challenging the later view that views the debate more broadly.
Stage 4: The Gemara then answers on behalf of the later view, showing that the reason that the proof-text records the debate under the more stringent conditions is to show the   “כח”  (strength or scope) of the more lenient view in that his lenient ruling extends even to the more stringent case, and by way of קל וחומר (fortiori deduction,) obviously to the more lenient case. However, the stringent view is not necessarily limited to the more stringent case and might also extend to the more lenient case.
Stage 5: The Gemara then questions why, if the above argument is true, the proof-text did not rather record the debate under the more lenient conditions to show the “כח” of the more stringent view in that his stringent ruling extends even to the more lenient case, and by way of קל וחומר, obviously to the more stringent case. Then, the lenient view would not necessarily be limited to the more lenient case but could possibly extend to the more stringent case.
Stage 6: The Gemara answers that when given the choice which case to use to illustrated the debate, the proof-text prefers to choose the case that which shows the scope of the lenient view, rather than the case which shows the scope of the stringent view, in its words, כח דהתירא עדיף- we prefer to illustrate the scope of the lenient view over that of the stringent view.
 
Although the daf includes other view and discussions, I will attempt to  select the parts that are part of this core pattern, and use it as a case-study for this principle. Where the pattern of the sugya deviates from this basic pattern, I shall also attempt to point it out and adapt it as best as I can.
Stage 1 : We start with a debate regarding a certain case, between two authorities, where the one (let us call him “Rabbi X”) permits or validates something and the other (let us call him ”Rabbi Y”) forbids or invalidates it.
The Mishna on Eruvin 72a discusses the case where 5 different groups people all spend shabbos in one טרקלין, which seems for the purposes of this post to refer to one villa consisting of one very large room.
This טרקלין  in turn opens to a courtyard which is shared by other houses.
It is obvious that the inhabitants of the טרקלין need to participate in the ערוב חצירות together with the other inhabitants of the courtyard.
The question is, however, whether these 5 groups are to be considered as one as far as the eruv is concerned, and may contribute once to the general eruv on behalf of all 5 groups, or whether each group needs to give its own contribution.
Beit Shamai holds that each group needs to give its own contribution, whereas Beis Hillel hold that all 5 groups may give one contribution together.
For purposes of our “pattern” Beis Shamai is the stringent  “Rabbi Y” who does not allow one contribution to be given on behalf of all 5 groups, and Beis Hillel is the lenient “Rabbi X” who does permit it.
Stage 2 : The Gemara then focusses on the precise conditions under which the debate applies, and someone suggests that under seemingly less stringent conditions, even the stringent opinion would be lenient (or under seemingly more stringent conditions, even the more lenient opinion would be stringent.)
Another view might then counter that the debate applies to both the seemingly more lenient and seemingly more stringent case.
The Gemara considers what the conditions are like in the טרקלין, in other words, how it is divided up.
Rav Nachman suggests that the debate only applies when the room is divided up by a מסיפס (an inferior type of partition-acc to Rashi, “a low partition made of pieces of wood” but see commentaries on  Bava Basra 2b for different definitions).)
However, under more stringent conditions namely if the room is divided by proper מחיצות (halachically valid partitions,) even Beis Hillel (Rabbi X) agree that they are viewed as separate groups and each one needs to make its own contribution to the eruv.)
The Gemara brings a different version of Rav Nachman’s view where he states that the debate applies to both situations, whether the room is divided by a מסיפס  (the lenient case)  or מחיצות (the stringent case)
[the Gemara then deviates from the standard binary dispute and brings another dispute regarding whether the debate applies to a case where the partitions reach the roof or to a case where they do not- for purposes of this illustration, I shall skip this.)
Stage 3 : The Gemara then brings a Beraita, Mishna, or other authoritative text that seems to show that the debate only applies under the more stringent (or lenient) conditions, thus challenging the later view that views the debate more broadly.
 
 
The Gemara brings the view of the Tana Rabbi Yehuda haSabar who states explicitly that the debate refers to a case where the partitions did not reach the roof, but that if they do reach the roof, even Beis Hillel is stringent and requires an eruv contribute from each group.
[This is accepted as a proof in favor of the Amora who suggested that the dispute is limited to the more lenient case where the partitions do not reach the roof, and against the Amora who says that the dispute is limited to the more stringent case where the partitions do reach the roof.]
For our purposes, this is viewed as a proof against the first view of Rav Nachman that the debate is limited to the (more lenient) case where the room is divided by a מסיפס as we see that the debate clearly applies to the (more stringent)  case where it is divided by partitions that do not reach the roof as well.
The Gemara further suggests that it should be a proof against the second version of Rav Nachman’s opinion who says the debate applies to both a room divided by a מסיפס and by regular partitions, seeing as there is no mention of a  מסיפס  in the statement of Rabbi Yehuda haSabar, seemingly implying that in a lenient case like that, even Beis Shamai would permit one contribution for all.
Stage 4: The Gemara then answers on behalf of the later view, showing that the reason that the proof-text records the debate under the more stringent conditions is to show the   “כח”  (strength or scope) of the more lenient view in that his lenient ruling extends even to the more stringent case, and by way of קל וחומר (fortiori deduction,) obviously to the more lenient case. However, the stringent view is not necessarily limited to the more stringent case and might also extend to the more lenient case.
The Gemara answers for Rav Nachman that the reason Rabbi Yehuda haSabar discusses the case of partitions and not the case of a מסיפס is to show the scope of Beis Hillel (the more lenient view) that permits one eruv for all of them even in the case of a partition that does not reach the roof (and by קל וחומר  to the more lenient case of the מסיפס.)
However, Beis Shamai (the stringent view) might indeed also forbid this even in the case of the מסיפס (the less stringent view,) in which case Rav Nachman view that the debate applies to both cases can be upheld.
Stage 5: The Gemara then questions why, if the above argument is true, the proof-text did not rather record the debate under the more lenient conditions to show the “כח” of the more stringent view in that his stringent ruling extends even to the more lenient case, and by way of קל וחומר, obviously to the more stringent case. Then, the lenient view would not necessarily be limited to the more lenient case but could possibly extend to the more stringent case.
The Gemara then questions why, if the above argument is true, Rabbi Yehuda haSabar did not rather discuss a  מסיפס (which reaches the roof as opposed to one which does not) in order to show the כח  of Beis Shamai (the more stringent view) in that his ruling applies even to the case of a מסיפס (the more lenient case) (and by קל וחומר  to the more stringent case of the מחיצה .)
Then, the lenient view of Beis Hillel might not necessarily be limited to the more lenient case of the מסיפס but COULD well extend to the more stringent case of the מחיצה ( so long as it does not reach the roof.)
Stage 6: The Gemara answers that when given the choice which case to use to illustrated the debate, the proof-text prefers to choose the case that which shows the scope of the lenient view, rather than the case which shows the scope of the stringent view, in its words, כח דהתירא עדיף- we prefer to illustrate the scope of the lenient view over that of the stringent view.
The Gemara answers that (Seeing as either way, the כח of one view will be illustrated and the other will remain subject to doubt,) it is preferable to show the scope of the lenient view.
 
Although the precise pattern might deviate from sugya to sugya, most of  the most essential elements thereof remain similar in other sugyas where this principle is brought, for example regarding making the Bracha “Shehecheyanu” on clothes which he bought for the second time (Brachos   60a), an egg that was laid on Yom Tov (Beitza 2a), the baby of a טריפה  animal (Chullin 58a), and a double doubt  (ספק ספיקא)  regarding Niddah (Niddah 59b.)
It seems clear that this principle does not serve as blanket guidance for following a generally lenient approach to halacha, but rather illustrates the important of going as far as possible to show the full scope of a lenient opinion, at least one that is halachically authoritative.
However, if there was not some value in allowing people to be lenient, or some issue with simply advising people to be stringent, this principle nevertheless seems somewhat spurious- after all what is the urgency of showing the scope of the lenient view over the scope of the stringent view if it serves no practical purpose?
If it was simply about דרוש וקבל שכר (learning Torah for the sake of the truth and obtaining merit for it,) it should be equally important to know the precise scope of the stringent opinion!
As such, extending this principle beyond Talmudic debates to going out of one’s way to find a halachically valid lenient approach to things seems somewhat justifiable, and many poskim have indeed appeared to do so (see for example Tzemach Tzedek 103 [regarding agunos], Seridei Eish 2/4 (regarding stunning animals before slaughter during the Nazi era.)
Examining the words of Rashi (Beitza 2a,) we get some clues as to what the rational for this principle is.
“טוב לו להשמיענו כח דברי המתיר, שהוא סומך על שמועתו ואינו ירא להתיר, אבל כח האוסרין אינה ראיה, שהכל יכולין להחמיר, ואפילו בדבר המותר”
It is good for him to teach us the scope of the words of the lenient view, because he relies on his tradition and is not afraid to permit. But the scope of the prohibitors is not a proof, as anyone can be stringent, even in something that is permitted.”
This wording appears to be somewhat ambiguous (for example, is the phrase  “שהוא סומך…” referring to the lenient view or the one interpreting him) and the way we interpret it might have major ramifications as to how we understand the reasons and scope of this principle.
Other issues essential for this discussion are the question of whether this principle also applies where the halacha does not follow the lenient view (such as Beis Shamai in Beitza- see Tosfos on our daf for a starting point) and whether this principle applies even to debates regarding rabbinical laws where the default is to be lenient anyway (see צל”ח  ביצה ב.. who claims that it does not, how he explains the exception in that case, and examine whether our sugya might possibly serve as a counter example to his view [after all, eruv is rabbinical and ספק עירוב לקולא !])
I would love to continue, but its already been 5 pages, and I am way behind on the current dapim, so I leave this as a challenge for further study, and  Hashem willing, we shall get to revisit the subject next time we encounter this principle.
 
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 69-71  The Lomdus of “Bittul Reshus”

Eruvin 69-71  The Lomdus of “Bittul Reshus”

 
The main theme of this daf relates to the concept of  בטול רשות  and how and when it applies.
We have mentioned before that the mechanism of choice for multiple inhabitants of one courtyard is to make an עירוב חצרות  whereby food is set aside on behalf of everyone in one of the houses, symbolically “joining” them all into residents of the same domain.
This is of course a symbolic mechanism which does not in any way affect the actual ownership of the houses and shared courtyards, and serves merely as a reminder not to carry from a private domain to a public domain proper- something Chazal were concerned enough about to prohibit carrying from one private domain to another owned by different people in the absence of such an eruv.
This eruv can only be done before Shabbos, as doing it on Shabbos resembles מקח וממכר  (commercial activity.)
If one or more of the inhabitants did not participate in the eruv before shabbos, the eruv is essentially ineffective.
This is because although all those who participate in the eruv are considered as if they share each other’s houses as well as their share in the common courtyard, the courtyard is also owned by those who did not participate, and therefore subject to different ownership than the houses of the participants.
This means that no one can transfer items between their houses and the common courtyard or vice versa.
One solution available is the mechanism of בטול רשות , also referred to in the Mishna as נתינת רשות .
The relationship between these two phrases requires analysis in its own right-for one approach, see Rambam Pirush haMishnayos Eruvin 6/1, 6/3 and 6/4 who seems to understand that נתינת רשות sometimes refers to making the eruv and sometimes refers to בטול רשות.
Whereas the phrase בטול רשות  seems to indicate a one-way mechanism by which the owner removes himself from ownership, control, or some other connection to his share in the courtyard (or possibly also his house,) the phrase נתינת רשות seems to indicate a two-way mechanism similar to a gift where the owner “gives over” one of the above at least symbolically to the other inhabitants.
There is a debate between Beis Shamai and Beis Hillel as to whether this may be done on shabbos, and the Gemara explains that Beis Shamai view בטול  as a form of two-way transaction whereby the non-participants  give over their “authority” over the courtyard to the participants, effectively leaving the courtyard owned in its entirety by the participants and making the eruv effective.
Seeing as such transactions are forbidden on shabbos, it may not be performed on shabbos.
In contrast, Beis Hillel view this as simply  סלוק (removing oneself from authority), a one-way mechanism that achieves the goal of making the courtyard owned solely by the participants due to his share being irrelevant, rather than owned by them.
Such an arrangement is permitted on shabbos, and at first glance, it might appear to be a form of הפקר- declaring one’s property to be ownerless- once his share of the courtyard is ownerless, the others remain its sole owners and their eruv is valid/
However, there are limitations that apply to the rules of הפקר  that do not seem to apply here.
For example:
i.                    Hefker needs to be declared in front of three people )Nedarim 45a), yet one person can be מבטל רשות to 2 people, and there is no indication here that someone else needs to be present (Tosfos deals with this issue in Pesachim 4b)
ii.                  According to the view that one needs to be מבטל רשות to each one of the people who were included in the eruv, simply making one’s share הפקר is clearly not enough
iii.                Hefker removes all legal connection between oneself and the object, to the point that anyone else can perform a קנין  (transactional act) on it and acquire it. In addition, the person who declared it הפקר  would need to perform an official קנין  in order to reaquire it- doing so in one’s mind would not do the trick. In this case, there does not appear to be any ability on the part of those who benefit from this בטול to take legal ownership of the property, but the benefit is limited to symbolic permission to carry within the area “as if” they owned it. Furthermore, it does not seem that a legally valid קנין needs to be made by the original owner in order to cancel this בטול.
iv.                It is not at all clear that declaring something הפקר  on shabbos is permitted, as the Ramban points out (Pesachim 4a)- it could be included in the general prohibition of commerce.
 
The concept of בטול  can be found in various other areas of halacha, for example:
1.      בטול חמץ  – one is required to declare any chametz left in one’s possession before midday on erev pesach “nullified like the dust of the earth.”
According to Rashi (Pesachim 4b,) this seems to be a way of fulfilling the mitzva of תשביתו  (removing chametz from one’s possession) and Tosfos seem to understand that it is a form of הפקר that creates a situation where that mitzva is simply not relevant anymore
 
2.      בטול ע”ז – an item of idolatry may become permitted if it is nullified by the idol-worshipper- this can done by breaking part of it, possibly a sign of its lack of importance to the owner (see A.Z. 52b.)
 
Though all 3 usages of this phrase seem to share in common the idea that one is declaring or showing that the item is no longer of importance to him, there is no need to assume that the “lomdus” (logical mechanism) in all three is similar. It is very possible that בטול חמץ  is a real form of הפקר  which בטול עבודה זרה  is certainly not, and that בטול רשות  is something completely different.
After all the phrase בטול  is also used regarding  בטול תורה  (wasting time when Torah could have been studied,) בטול עשה and   (avoiding performing a positive mitzva,)  בטול and none of them have anything to do with הפקר or ownership.
More specifically, whereas בטול חמץ  and בטול עבודה זרה  seem to work on a biblical level to avoid the prohibitions of owning chametz on pesach or an item of idolatry, בטול רשות  is a rabbinical measure which might simply be meant to have a similar symbolic effect  to that of the eruv.
However, there are views in the Rishonim, principally that of the Ramban (Pesachim 4b,) who  seem (at least a first glance) to assume that all three work on a similar mechanism and thus attempt to leave הפקר  out of the discussion altogether.
Although a thorough analysis of the various views as to how these different instances of בטול  work is still required, it is clear that whatever explanation is offered will need to pass the test of the different rules Chazal prescribed for each of them, in the absence of some other “external” explanation for the rule in question. The topic is vast- I have barely scratched the surface of the many sugyas and mefarshim that relate to the topic.
 
 
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 67 and 68  שבות דשבות  by a non-Jew and a Jew

Just as it is forbidden for a Jew to perform melacha (forbidden work) on Shabbos, it is usually forbidden for a Jew to ask a non-Jew to perform melacha for him on Shabbos, or to benefit from melacha done for him by a non-Jew on Shabbos, a topic we have discussed numerous times in previous posts.

However, there are exceptions, and one of them is where the melacha is performed for the sake of a mitzva or in the case of great need or suffering- The majority view in halacha is that it is permitted to ask a non-Jew to perform something that is only a שבות  (rabbinically prohibited action) on shabbos for the sake of the above.

As we shall see,  there is much debate regarding the scope of this leniency, with some opinions extending this leniency to any שבות  for any case of מצוה  or great need/suffering, and others limiting it to certain kinds of שבות  and/or certain special מצוות  or situations.

Furthermore, many later poskim extend this concept to any שבות דשבות , allowing even a Jew to perform an action that is only rabbinically forbidden for TWO separate reasons for the sake of a mitzva or in case of great need or suffering, and a minority view of Rishonim who allow one to ask a non-Jew to perform even a biblically forbidden act in such cases.

What all the opinions seem to agree with is that one of the main starting points, if not THE starting point for all these discussions is the sugya on our daf!

1: The Gemara relates how the warm water needed for a child spilled, and Rabbah advised the people to go get more from the house.

They replied that they had not made an eruv chatzeiros (and could thus not carry from his house to the shared courtyard or other house where they were.)

He advised them to rely on theשתוף  (form of eruv done to join all courtyards in a מבוי.)

They responded that this had also not been done.

He then suggested that they get a non-Jew to get more hot water for them.

At this stage, we should already be able to read between the lines and deduce the following about this case:

i.                    The only halachic issue involved was bringing the water through an area that had not been linked by an eruv, in other words a rabbinical prohibition (seeing as עירוב חצירות  and שתוף מבואות  would not help in a biblically defined public domain.

ii.                  Despite this being only a rabbinic prohibition, a Jew was not allowed to bring it even for the sake of the child.

iii.                The usual prohibition of asking a non-Jew to perform a forbidden action on behalf of a Jew did not apply in this case.

What is not clear from the Gemara is

1.      What kind of child this was talking about and what precisely the water was needed for?

2.      Whether the permission to ask a non-Jew to perform a forbidden action for the needs of a Jewish child would apply even to a biblical prohibition or is limited to a rabbinical prohibition like this.

3.      Whether the permission to ask a non-Jew to perform a prohibited action for a Jew is limited to this precise case, applies to any needs of a child, applies to any very important needs, or in the case of rabbinically forbidden actions, applies to any situation.

2: The Gemara proceeds to tell us that Abaya was unhappy with his Rebbe Rabbah’s permissive ruling, and wanted to object, but was constrained by his other Rebbe Rav Yosef.

Rav Yosef learned a golden rule from Rav Kahana, who learnt it from Rav Yehuda:  If one has an objection to a permissive halachik ruling of one’s Rebbe, if the objective involves a rabbinical prohibition, one should first follow the lenient ruling, and only afterwards bring the matter up with him.

Afterwards, Rav Yosef proceeded to ask Abaya what his objection had been.

Abaya replied that he wanted to object based on a Beraisa which compares אמירה לנכרי  (the prohibition of asking a non-Jew to perform a forbidden action for a non-Jew on Shabbos ) to  הזאה  ( sprinkling [the ashes of the red heifer] to purify someone.

The Beraisa tells us that both are  שבותים  (rabbinical prohibitions on shabbos) and do not push off shabbos.

The wording seems a little spurious- seeing as both are שבותים, surely it is is obvious that they do not push off shabbos?

Possibly for this reason, the Rishonim (See Rashi for example) understand that this is even for the sake of  mitzva, for example if erev pesach falls on shabbos and someone needs to be purified in order to be able to bring his קרבן פסח . Furthermore, this is not just any mitzva, but a mitzva whose failure to observe is punishable by kareit.

As such, it seems from Abaya’s objection that the case was one were the hot water was needed for a mitzva relating to the child, and probably a mitzva of similar weight.

There is such a mitzva that relates to a child, and this is ברית מילה!

As such, it know seems probable that this question was not about any needs of any child, but for the sake of the ברית מילה  of a baby, and this is indeed how many Rishonim learn the case, but back to that later.

3: Rav Yosef  replies to Abaya’s objective by making a distinction between a שבות שיש בו מעשה  and a שבות שאין בו מעשה . He backs this up by pointing out that they did not ask the non-Jew to go and heat up more water for the child! (This “proof” is omitted in certain גירסאות  (versions) of the text, something that makes a big difference to the flow of sugya, but that is for a little later.)

It is clear from Rav Yosef’s reply that not all שבותין  are equal- there are some (those that involve an “action” like sprinkling ashes) that are not permitted even for the sake of the great mitzva of ברית מילה  or קרבן פסח , and there are others (those that do not involve an action like telling a non-Jew to bring water through a courtyard that has not been “joined”) that are permitted, at least for the sake of such a mitzva.

What is not clear is what the meaning of the phrase “שבות שיש בו מעשה”  (a rabbinical prohibition of shabbos involving an action) and its opposite are.

There are several possibilities that could spring to mind, among them:

i.                    Perhaps the most obvious meaning of the text is that sprinkling ashes involves a physical action by a Jew, as opposed to telling a non-Jew to perform a forbidden action, which involves only “speaking” by a Jew.

 We know that speaking is not necessarily the same as a physical action, and that there is a debate when it comes to חיוב מלקות  (liability to corporal punishment [which generally only applies for a prohibition involving an action]) whether speaking qualifies as an action (see for example B.M. 90a)

 According to the view that it does not, the distinction here is obvious, but even according to the view that it does, it is possible that this only applies regarding חיוב מלקות  but that a different threshold applies when it comes to being overridden by a mitzva, certainly a great mitzva like this.

If this is the distinction referred to by Rav Yosef, it could be that any prohibition that does not involve an action by a Jew, even if it involves a biblical action by a non-Jew, would be permitted.

This is the view of the בה”ג  and רבינו חננאל – however, it does not seem to fit the “proof” that Rav Yosef brings for his distinction, namely the fact that the non-Jew is not being asked to heat the water for the baby, in others words he was not being asked to perform a biblical prohibition.

This seems so inconsistent with the simple meaning of Rav Yosef’s distinction that these authorities do not have this “proof” in their version of the text (what exactly this means and how it works is a fascinating topic in its own right!)

ii.                  It is possible that  שבות שיש בו מעשה  refers to the rabbinical prohibition of telling a non-Jew to do an actual “מעשה” as in “לא תעשה כל מלאכה”- a biblically prohibited מעשה, which is forbidden even for the sake of a mitzva, just like sprinkling is.

שבות שאין בו מעשה  would then refer to the rabbinical prohibition of telling a non-Jew to perform something which is only rabbinically forbidden as a שבות  and only actually considered “doing a melacha.”

Although creative, and perhaps a little forced, given that Rav Yosef does not refer to  עשית מלאכה  but rather to מעשה, this fits in with the “proof” brought by Rav Yosef, namely the fact that the non-Jew was not asked to perform a biblical melacha act such as heating up hot water for the baby.

This approach is taken by the Rif and quoted by various other Rishonim (see Rashba and Ritva, for example, who raise various difficulties on it, and Rosh on Shabbos Perek 19/2 who accepts it)

It would follow from this that one may NOT ask a non-Jew to perform a biblically forbidden at on shabbos even for a great mitzva like Bris Milah-One may only ask him to perform a rabbinically prohibited action like forbidden carrying though an area that does not involved a biblical public domain.

It is still not clear whether this permission applies to only Bris Milah, the other mitzva subject to כרת  for non-fulfillment, such as korban pesach, other mitzvos defined as מצוה רבה (extra great mitzvos), any mitzva, any situation of great need or distress, or perhaps for any need (Tosfos Gittin 8b limits it to milah) but some basis for permitting שבות דשבות על-ידי עכום  is at least present.

iii.                A third explanation of Rav Yosef’s distinction is that a שבות שיש בו מעשה  is an action that is applied to an object that physically changes it  (the emphasis on the “בו” referring to the object, also not the most obvious reading.)

The prohibition of telling a non-Jew to perform a forbidden action on shabbos might be limited to one that changes the actual object, and not something that simply changes its position. We have discussed in an earlier post (Shabbos 96) how the prohibition of הוצאה  is considered to be  מלאכה גרועה  (inferior melacha) for this reason.

This explanation is brought by the Ritva in the name of הרב החסיד  (usually Rabbeinu Yona [thanks to מו”ר הרה”ג מנדן בלחמן שליט”א  for pointing this out and pointing me to Ritva Eruvin 41b where he indeed brings this in the name of Rabbeinu Yona] )

If this explanation is accepted, the permission to tell a non-Jew to perform a forbidden activity on shabbos even for the sake of a bris would be limited to the melacha of carrying and other things that do not involve change to the item. This melacha might even be permitted even on a biblical level, such as when a real public domain is involved!

What is clear according to all 3 opinions is that we have not yet seen a blanket permission for any שבות דשבות  on shabbos.

At most, we have seen permission even for a Jew,  to perform a שבות  that does not involve a physical action, for the sake of the mitzva of milah, korban pesach,  or its equivalent, and that would include telling a non-Jew to do anything for such a purpose, even if it is biblically prohibited, without the need for a שבות דשבות  at all, and certainly where a שבות דשבות is involved.

According to the third explanation, even a שבות דשבות  like telling a non-Jew to perform a rabbinically forbidden action on Shabbos, even for the sake of a bris milah, would only be permitted if the action does not involve a physical change in the item, and would thus be limited mainly to asking a non-Jew to carry something on shabbos through a forbidden domain.

It is only  according to the second explanation that this sugya could set a clear precedent for the distinction between a שבות  and a שבות דשבות , and even there, there is no proof that this is permitted for anything less than a mitzva of the stature of ברית מילה  or קרבן פסח.

We certainly do not seem to have any precedent for permitting a שבות דשבות  by a Jew himself, even for the sake of a mitzva or great need, in other words allowing a Jew to performing something that is 2 levels removed from a biblical prohibition, and only forbidden because of TWO separate rabbinic prohibitions, for  example, two people turning on a light in an unusual way in order to be able to read a siddur or learn.

In fact, even the second explanation seems to be  based on the difference between something done by a Jew and something done by a non-Jew, and although according to the first explanation, this distinction could be limited to when only one שבות  is involved (such as sprinkling or asking a non-Jew to heat up water,) we certainly have precedent for making this distinction with a שבות דשבות  as well.

Yet, the view of many Rishonim, including the Rambam (Milah 2/9), is that a שבות דשבות involving a non-Jew is permitted for any mitzva  and this seems to be the normative halacha (O.C. 266/5.)

In addition, many Achronim extend this permission to a שבות דשבות  performed by a Jew as well  (including האלף לך שלמה קמו – see Peninei halacha shabbos 9/11 and ג בהרחבות for an impressive  list that also includes the Chazon Ish and Rav Moshe Feinstein zt’l)

Clearly, we have much work to do still on this sugya and/or there are other sugyos and/or sevaros  involved.

A little later on daf 68 is another case with a child that plays a major role in this discussion, as does a fascinating sugya about buying a house in Eretz-Yisroel on shabbos (Gittin 8b.

In addition, a thorough analysis of the principle of אין גוזרין גזירה לגזירה  and the reasons for the prohibition of אמירה לעכום could also be in order,  but that’s it for tonight- Shavua tov and Chodesh Tov!

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 66 בטול ושכירת רשות  on Shabbos and more special eruv leniencies

 
At the bottom of Eruvin 65b,  a case is brought where 3 sages of the transition/early Amoraic period, Rabbi Chanina bar Yosef, Rabbi Chiya bar Aba, and Rabbi Assi spent shabbos at an inn owned by a non-Jew.
The owner was not present before shabbos for them to hire his “reshus” from him, and according to the view of Rabbi Yehuda that if the non-Jewish resident/owner is not present over shabbos, he forms no barrier to the eruv, they could have made an eruv before shabbos without him, but even if they did, now that he was back, it was no longer valid, and  they asked each other whether  this שכירת רשות  could be performed on shabbos. (there is some debate amongst the Rishonim as to whether they did indeed make an eruv before shabbos and whether they held like Rabbi Yehuda or not.)
The basis of their uncertainty was whether שכירת רשות  is forbidden on shabbos just like making the actual eruv is, or whether it is permitted like בטול רשות  is according to Beis Hillel (see Mishna on Eruvin 69b and Gemara on it)
It seems to me  that the basis of their uncertainty could be as follows.
On the one hand, it could be a form of transaction which effectively gives them control of the space, and is thus included in the prohibition of מקח וממכר  (commerce) on shabbos, just like the actual ערוב חצירות  process is, and like Beis Shamai also view בטול רשות  ( as explained by the Gemara on Eruvin 71a)
On the other hand, it could be simply a form of סלוקי רשות, (removing one’s own rights to the object) like how Beis Hillel view בטול רשות (see also Eruvin 71a) and thus permitted.
A deeper analysis of the conceptual mechanisms by which the above processes work is needed, particularly regarding how שכירות  can possibly resemble מחילה  and just be considered as סלוקי רשות  when the renter clearly seems to be an active part of the process- it certainly seems from this that we are not dealing with a real rental, but some form of symbolic rental with its own set of laws (see Meiri who makes this point.)
For our purposes, we shall note that Rabbi Chanina bar Yosef was in favor of going ahead with the שכירות, Rabbi Assi was against it, and Rabbi Chiya bar Aba suggested that they follow the lenient view of the “elder” Rabbi Chanina bar Yosef and go ahead.
After the event, they asked Rabbi Yochanan about this, and he praised their actions.
This attracted the surprise of Nehardai, given that Rabbi Yochanan had ruled previously that שוכר כמערב דמי  (the one who performs this שכירות רשות  is subject to the laws of one who makes the eruv,) and going by that, he should have been against their lenient treatment of שכירות רשות  as בטול רשות  that permitted it on shabbos.
The Gemara responds that in keeping with the general rule that most principles of eruvin are said to produce leniencies and not stringencies (see Rashi), Rabbi Yochanan’s application of the law of the מערב  (eruv maker) to the שוכר  (renter) only extends to the leniencies of the מערב  and not its stringencies, such as being valid with less than the value of a פרוטה  and the other leniencies listed on the daf.
This could be because Chazal treated  שכירות רשות  as a form of hybrid mechanism which takes on the leniencies of both עירוב  and בטול רשות  and neither of their unique stringencies- alternatively Rabbi Yochanan could have simply been unsure as to which mechanism it follows and ruled leniently either way.
This seems  to be yet another example of how lenient Chazal were with the requirements of Eruvin, even above their normal leniencies applied to all rabbinic laws. We saw this earlier  regarding the rule of הלכה כדברי המקיל בערוב  in that even a minority lenient opinion might be followed in an unsettled dispute (see posts on Eruvin 46 and 47.)

Usually we are not entitled to be lenient in rabbinic matters in two different ways that create  a paradox or situation of תרתי דסתרי .
For example, one may be lenient and daven Mincha after plag hamincha in accordance with Rabbi Yehuda or choose to be lenient and daven Maariv straight after plag hamincha before nightfall in accordance with the Chachamim (see Brachos 27a,) but one may not follow both leniencies and daven both Mincha and Maariv during the time between plag and nightfall.
One must choose whether to treat that time as night or day but cannot treat it as both on the same day, and certainly does not treat it as a hybrid.
Yet, in our case, we are not forced to choose whether to treat the שכירת רשות  process leniently like מערב  regarding using less than a  שוה פרוטה  or treating the שכירת רשות  process leniently like בטול רשות  and permitting it on shabbos- rather  we are able to treat it leniently like both, despite is seeming logically paradoxical.
This is no small thing, and further analysis is required to assess if the above comparison is indeed accurate, as well as the scope of this leniency (for example, does it also apply to other instances of שכירות  on shabbos), but that’s some food for thought for now.
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 62, 65 Bittul and Sechiras reshus and hotels on Shabbos

After some fascinating diversions into the realm of the prohibition of making halachik rulings in front of one’s Rabbi, respecting the privacy of married couples, ruach hakodesh, and much else, we return to the discussion of the main theme of the chapter’s opening Mishna.

We already know that although from a biblical perspective, there is no prohibition against transferring items on shabbos from one private domain to another adjacent one, even if it is owned by a different person, Chazal prohibited transferring things from one private domain to another if the second domain is owned by a different person.

This prohibition was designed to prevent one from getting confused and transferring from a private domain to a public domain and extends even to transferring objects from a private domain owned by an individual to one which he shares with other individuals.

This was the standard situation with the shared courtyards that multiple homes would commonly  open up to in Talmudic times (still common in older neighborhoods of Yerushalayim and other cities),also applies to the communal spaces and corridors of apartment buildings and gated communities, and to a certain extent, as well to the public space in cities which are enclosed enough to meet the criteria for being considered private domains.

Chazal limited this prohibition to shared spaces where an ערוב חצירות  has not been made- the eruv here does not refer to the physical or symbolic partitions that are necessary to make it into a private domain, but to the eruv process we have discussed before where food is used to symbolically convert the entire area into one single private domain.

There is another option available , known as בטול רשות, where everyone except for one resident can “nullify” their ownership thus making the one resident the halachik owner for the duration of shabbos, also making it one large  private domain.

Though this could be  a reversible decision, it is rather complex and the precise lomdus by which it works requires its own discussion- more of that later.

For reasons discussed in the Gemara (Eruvin 62a,) the option to make an eruv only applies when all residents are Jewish as the symbolic eruv mechanism is not available to a non-Jew, nor is the option of בטול רשות.

The Mishna on 61b discusses the laws when one lives in a courtyard with an idolater (the applicability of these laws to monotheistic non-Jews and a ger toshav are a discussion in their own right, which I hope to address sensitively and correctly at one point.)

Rabbi Meir is of the view that even if there is only one Jew living in the courtyard, he may not carry in or into it, whereas Rabbi Eliezer ben Yaakov holds that so long as there is only one Jewish household  there, no eruv is needed even.

Once there are more than one Jewish households living in the courtyard, Rabbi Eliezer ben Yaakov agrees that an eruv is needed theoretically- however, seeing as the idol-worshipper cannot be part of the eruv, the only way forward is a third mechanism, namely that of שכירות רשות.

Unlike בטול רשות  which does not transfer ownership in any way to anyone else, this involves the עכום renting his rights in the property to the Jewish residents, making them the only halachik owners of the space, after which they can make an eruv amongst themselves.

The Gemara on Eruvin 62a refers to a debate as to the nature and status of this “rental” and notes that it was understandably not common for the non-Jew to agree to such an arrangement.

____________________________________________

How does this affect one who stays in a hotel on Shabbos?

Theoretically speaking, a hotel is generally owned by the same person, group of people, or company, and all areas from the rooms to the corridors and public areas should thus be viewed as one large private domain, so long as the entire area is surrounded by halachically acceptable partitions.

As such, one would think that there should be no issues carrying from room to the public areas and versa, within the public areas, or from room to room.

However, this could be a little more complex given that rooms are “rented” out to different people, and there are typically both Jewish and non-Jewish guests, hotel-owners, managers, and other staff staying there at the same time.

If we view this as a regular שכירות , and if שכירות קונה  (renting a property makes the renter the halachik owner during the period of the lease, at least in certain regards,) then the hotel can no longer be regarded as one private domain owned by the hotel owner, but is more similar to a courtyard with multiple houses, each owned by different people.

This would essentially make all the complexities of עירוב, בטול רשות, and שכירת רשות  applicable to a hotel situation.

In truth, the general rule seems to be that  שכירות לא קניא  (a rental does not confer temporary ownership- see A.Z. 16a  but c.f. B.M. 56b and Pesachim 6a, and a topic for another post.)

Yet Strong evidence that these rules indeed apply to a hotel situation can be found on Eruvin 65a, where Reish Lakish and the students of Rabbi Chanina spend Shabbos at a פונדק , where a non-Jew also was renting a room, but was not currently there. The owner, on the other hand, was there.  (A פונדק   generally appears to refer to an inn where people stay temporarily while travelling, both long and short-term  [see Tosefta B.M 8/28 (Leiberman) ]and seems at face-value at least to be equivalent to a modern-day hotel-)

The Gemara relates how they wanted to do שכירת רשות  from the owner but were uncertain whether he had the authority to do this, seeing that the relevant room was rented out to someone else.  It explains that their uncertainty related to a place where the law entitled the owner to evict the renter at any time, but that if he did not have the right to do this, it was clear that he was also not able to perform שכירת רשות.

As a hotel manager or owner certainly does not have the legal authority to evict  guests any-time he wants to(at least in most modern locales,) it seems that one would have to perform שכירות רשות  with any non-Jewish guests themselves.

However, most of the  Rishonim (see Rashba, Ritva, Rosh for example) note that if the owner has a תפיסת יד  (degree of control) over the rented property still, such as the right to store property there, he can certainly perform the שכירות רשות  even if he lacks the right to evict the tenant.

They prove this from the fact that even שכירו ולקיטו  (the hired laborer) of the owner may perform this שכירות given their connection to the property, and an owner with rights to keep property in the rooms is certainly not less than a שכיר.

As such, seeing as hotel owners or managers (who ostensibly have the law of a שכיר) store hotel furniture, decor, electronic devices and other property in the rooms, have the right to enter to inspect or clean the rooms (at least when guests are not present) and maintain general responsibility for the rooms, it seems that they certainly would have the ability to perform this שכירות רשות, assuming it is even needed. (One could  counter  though that seeing as all the items kept in the rooms are for the use and  benefit of the guest during his stay, this is not the same level of תפיסת יד  that one who may use the rooms for his own storage-after all, the manager or even the owner usually cannot just store his own private things in the rooms at his whim!)

There is also another case at the bottom of the daf where a similar question regarding שכירת רשות  in a פונדק  arose, adding more strength to the argument that hotel settings might also be subject to these requirements, though still subject to the points raised above.

It seems that for whatever reason, as far as the requirements of eruv and שכירת רשות  are concerned, we do consider שכירות  as a form of קנין.

Perhaps these laws are simply not dependant on absolute ownership but more on utility and control- this would make sense given the reason that Chazal required eruv chatzeiros  to prevent people transferring from one domain to another- as such, it is not objective ownership that is important but rather the appearance of residence. (there might be reason to differentiate between short-term and long-term rentals (more than 30 days as well, but that is beyond the scope of this post.)

In order to avoid all the complexity regarding these issues, many people perform  שכירת רשות  in hotels where possible (and so I have seen Moreinu haRav Asher Weiss שליט”א, though  he told me it might not really be necessary.)

Based on the above arguments, doing so with the owner, manager, or other appropriate staff member of the hotel seems to be acceptable normative practise.

 However, there is also strong reasoning in favor of those who do not do so for short stays less than 30 days- of course, please see below disclaimer as usual!

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 63 and 64    Could today’s Gedolim have “Ruach haKodesh” Part 2

In the post on Eruvin 60/61, We discussed various interpretations in the Rishonim of the phrase “דברי נביאות”  attributed to Rabbi Yehoshua ben Levi by Rav Idi.

Whereas most Rishonim do not seem to see this as referring to actual prophecy or “ruach hakodesh,” and some even see it as לגנאי ( a critical statement,) we saw that the Rabbeinu Yitchak, quoted in Tosfos, takes this almost literally and understands it to be referring to actual “ruach hakodesh,” based on a Gemara in Bava Basra.

We mentioned the famous and oft-cited Beraisa that states that “ruach hakodesh” departed from Israel after the death of the last prophets, and suggested that it is due to this Beraisa that most Rishonim did not wish to understand that Rav Idi attributed real “ruach hakodesh” to Rabbi Yehoshua ben Levi.

We also discussed the ruling of the Divrei Chaim that a teacher who claimed that the Ohr haChaim did not have “ruach hakodesh” was a heretic and that removing him from his post was the correct thing to do (though he was not willing to rule regarding the monetary implications of this.)

We pointed out how this ruling seems to be contradicted by the above Beraisa, and that the implication of that Beraisa is that even Hillel did not have “ruach hakodesh,” so the teacher appears  at first glance to have said nothing inappropriate.

Although I left the post without coming to any conclusions and noted that the view of the Tosfos, Ramban and the sugya in Bava Basra would be discussed in a follow-up post when it is next relevant to the daf (my intentions were of course for today’s daf,) I  received an unusual amount of both positive feedback and pushback for it.

I even received a mild and friendly rebuke from my Rebbe, Moreinu haGaon haRav Mendel Blachman שליט”א  for seeming to make light of the words of the Divrei Chaim, whose status as one of the great Torah authorities is debated by none- although I thought it was completely clear that this was not my intention, I wish to clarify again that I was merely attempting to build the sugya in an orderly and exciting  manner and was always fully aware that the Divrei Chaim was fully aware of the Beraisa and had his own explanation thereof.

I was also pointed by more than one to the Gemara on our daf today, which I had already planned on discussing at the appropriate time, which seems to be a clear proof for the approach of Tosfos, at least in theory.

Given the danger of people jumping to premature conclusions and not understanding the purpose of these posts, something I clearly need to be clearer about, I have decided to leave my planned post on Eruvin 62 and 63 for another opportunity and try to address  these issues as soon as possible.

The Gemara brings a Beraisa which narrates  how Rabban Gamliel was riding his donkey and Rabbi Ilai was riding behind him (this is a shortened version-please see the daf for the full version.) They saw a loaf of bread on the road, and Rabban Gamliel picked it up and told Rabbi Ilai to take it. They carried on and saw a non-Jew whom Rabban Gamliel addressed by his name, מבגאי  and told to take the loaf from Rabbi Ilai.

Rabbi Ilai then asked the non-Jew where he was from and what his name was. The non-Jew told him where he was from and that his name was מבגאי. Clearly surprised that Rabban Gamliel had “guessed” his name correctly, he asked the non-Jew whether Rabban Gamliel knew him, and he answered in the negative.

The Beraisa says that we learn from this that Rabban Gamliel כון (directed his thoughts) with “ruach hakodesh.” It also brings 3 other rules that we learn from this story, something we need to come back to a little later.

It seems clear as daylight that the author of this “Beraisa, and the Amoraim who brought it, attributed “ruach hakodesh” to Rabban Gamliel, even though he lived long after the last of the prophets!

There are also various other primary sources that attribute “ruach hakodesh” to other great Tannaim, among them  Rabbi Akiva (see Ran/Nedarim 50b) and Rabbi Shimon bar Yochai (פסיקתא דרב כהנא יא) .

How do we reconcile this with the Beraisa that holds that “ruach hakodesh” departed with the last of the prophets, and that even Hillel never had “ruach hakodesh?”

Several possibilities can be entertained, among them:

i.                    These are contradictory Beraisa’s, reflecting two different views amongst Chazal, and there is no need to reconcile them. Although legal, this approach needs to be reconciled with the Amoraim  who brought each Beraisa, and given that it is not just an aggadic discussion but one that could have major practical ramifications (such as the case in the Divrei Chaim,) one would expect the Gemara to acknowledge such a debate if it indeed existed. It is also an answer of last resort, as the way of Chazal was always to try and avoid machlokes wherever possible and rather reconcile apparently differing views as much as possible.

ii.                  We could be dealing with different types of “ruach hakodesh,” in which case we would need to clearly define each type and prove that such a distinction in fact exists. We shall focus on this approach in more detail below.

iii.                It is possible that נסתלקה רוח הקודש  was not a total end to this experience but rather a general removal whereby it would not be a regular “as needed” experience for all people who merit it, but only an occasional experience by the greatest of people. This could fit well in the context of the Mishnayos and sugya at the end of Sotah, where other things such as chasidim and the wealth of Torah scholars which are said to have ceased after certain key figures died clearly did not disappear completely  (see Beis Shlomo O.C. 112 who makes this point.)

It is thus very plausible that the Beraisa did not mean to say that Hillel and Shmuel haKatan NEVER experienced “ruach hakodesh” but rather that it was not a common experience for them like it was for the Neviim, and/or of a lesser quality.

Evidence for this can be found at the end of this very Beraisa, where we are told that Shmuel haKatan predicted the fates of many of the Tannaim on his death bed, something we also see with Rabbi Eliezer when visited by Rabbi Akiva (Sanhedrin  68a.)- Of course it is also possible that the death-bed of the greatest of people provides a flicker of “ruach hakodesh” not provided during life.

The fact that Rabbi Ilai was so surprised by Rabban Gamliel’s ability to identify the man’s name also attests to how unusual this was, even for Rabban Gamliel, as does that fact that Rabban Gamliel does not seem to have known the halachic status of the loaf via “ruach hakodesh.” (the later point could also indicate that when it comes to halachik rulings, “ruach hakodesh” is not a factor due to the rule of “לא בשמיים היא ” ,or that even unique individuals like Rabban Gamliel did not get assistance via “ruach hakodesh” when it comes to halachik matters. “

Of course, the fact that there were still people great enough during the Tannaic period to merit the occasional “ruach hakodesh,” does not mean that this extended into the period of the Amoraim or later.

Even according to Tosfos who understood that Rabbi Yehoshua ben Levi had “ruach hakodesh,” it should be pointed out that Rabbi Yehoshua ben Levi formed part of the transition period between the Tannaim and Amoraim, and also had his own very unique qualities  ( see Shabbos   156a regarding פנקסו של ריב”ל  or Kesubos 77b regarding חולי רעתן for examples of this.)

Yet the sugya in Bava Basra that Tosfos brings as support, as understood by the Ramban, paves the way for distinguishing between different types of “ruach hakodesh” and attributing one type thereof to a far wider circle of Torah scholars as well as on a far more regular basis.

The context for the discussion there regards the law of dividing up shared property.

Such property may only be divided up at the insistence of one of the partners if it is large enough to be divisible into two viable portions for each partner, otherwise mutual agreement is necessary.

Shmuel’s father and the Tana Sumchus are of the view that when it comes to a vineyard, the minimum size  that is called a “vineyard” is one that can produce 3 kav .  Rabbi Yossi comments that these words of Sumchus  are דברי נביאות , the same expression we saw back on Eruvin 60b.

This leads into the words of רב אבדימי דמן חיפה  who states that from the time of the destruction, prophesy was taken away and given to the חכמים, implying that Rabbi Yossi’s statement is a positive statement attributing prophecy to Sumchus  (though see רי מגש who does not understand it this way at all.)

The flow of the sugya and the various interpretations thereof in the Rishonim are too long to analyze in this post, but the view of the Ramban is so critical to our topic that we have to at least give it a rudimentary treatment.

אלא הכי קאמר אף על פי שנטלה נבואת הנביאים שהוא המראה והחזון, נבואת החכמים שהיא בדרך החכמה לא נטלה, אלא יודעים האמת ברוח הקדש שבקרבם

“rather, this is what he is saying- Even though the prophecy of the prophets, which is the sight and the vision, was taken, the prophecy of the wise-men which comes through the way of wisdom, was not taken- rather they know the truth through the “ruach hakodesh” inside them.”

The Ramban seems to be describing a type of prophecy that comes through the “ruach hakodesh” inside the sages which is a product of their wisdom, and that this type of prophecy was not taken away and remained with the sages.

What the Ramban does not do is explain our Beraisa in Sanhedrin that says that ruach hakodesh departed when the last prophets died.

It is clear historically that the last prophets lived well into the period of the Babylonian exile, after the destruction of the first Temple.

In the absence of the continuation of the sugya in Bava Basra, the story on our daf and other similar cases, it could be possible to suggest that there were two stages:

1.       The era of prophecy proper ended with the destruction but remained with the wiser prophets through “ruach hakodesh” for some time and this is the type of prophecy that the last of the prophets experienced in the exile.

2.       When these last sage-prophets died, this “ruach hakodesh” via wisdom type of prophecy also departed.

Yet from the continuation of the sugya in Bava Basra where various Amoraim bring examples of this wisdom-derived prophecy in every-day life, this does not appear to be the case, and cases like those of Rabban Gamliel on our daf also make this suggestion implausible.

It thus seems most likely that just like there are two types of prophecy, there are also two types of “ruach hakodesh” and that the “ruach hakodesh/prophecy” inspired by wisdom outlived the time of the prophets well into the period of the Tannaim, some of the greatest of whom were endowed with it.

It is also possible that this wisdom related “ruach hakodesh” of the Ramban never completely ceased and that at least some of the greatest sages of each generation too have some degree of it, according to their merit, though whether this “ruach hakodesh” simply assists one’s natural intellect to come to correct halachik conclusions or goes so far as to allow one to discern secrets and predict the future is also not clear- whereas the case of Rabban Gamliel certainly seems to involve the later, the examples brought by later Amoraim in Bava Basra seem more focussed on the former.

What seems clear from the case with Rabban Gamliel, however, is that at least the type of “ruach hakodesh” which gives “supernatural” knowledge of facts or possibly even the future, is NOT  a regular event, and was not even experienced by most Tanaim, let alone later authorities- otherwise it would not have been recorded as a novelty.

This is further substantiated by the case in Eruvin 63a of the student of Eliezer who transgressed the serious prohibition of ruling in halacha in front of his Rabbi.

Rabbi Eliezer told his wife that that student would not live through the year, and it was.

When asked whether he was a prophet, he replied that he was not, but that he simply had a tradition that someone who makes a halachik ruling in front of his Rebbe deserves to die.

We see that Rabbi Eliezer’s wife was very surprised that he seemed able to see the future to the point that she asked him incredulously whether he was a prophet- This in itself shows that it was certainly not the norm for great Tannaim to be able to see the future.

Unless it was said merely out of humility, Rabbi Eliezer’s answer also makes it clear that he did not consider himself to have this ability either, and given the context of the sugya which discusses this prohibition and its punishment, this is likely to be what it he meant (though it is still difficult how he knew that the punishment would occur within the year and that it would definitely take place, given that he could always repent and be exempted from this punishment- perhaps he did experience some form of “ruach hakodesh” and his answer was indeed out of humility? Either way, we certainly see that this was certainly not the norm by the Tannaim.)

Back to the wisdom-derived form of “ruach hakodesh” discussed by the Ramban, The Divrei Chaim in the earlier quoted teshuva makes it clear that it is this type of “ruach hakodesh” that he is referring to, and it appears that he had reason to believe that the teacher had denied that the Ohr haChaim had even this kind of “ruach hakodesh,” something he saw as an extreme sign of disrespect for someone he held up as one of the greatest sages of his time.

Whether this is the final word on the subject, whether the teacher indeed had that kind of “ruach hakodesh” in mind, and whether the view of the Ramban is indeed compatible with the view of many of the other Rishonim is beyond the scope of this  post  – much has been written on the subject and I hope we shall get a chance to revisit this again- the reader is encouraged to pursue this topic further outside the scope of this post, obviously based on authoritative sources only.

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 60 and 61 Do Gedolim have “Ruach haKodesh”

In a rather unusual responsa, Rav Chaim of Sanz (the Divrei Chaim,) founder of the Sanz dynasty of Chasidim (Y.D. 1/105,) dealt with the issue of a school teacher who had told his students that Rabbi Chaim Attar, author of the famed “Ohr haChaim” super-commentary on the Chumash, did not write his work with “ruach haKodesh” (“holy spirit-“ loosely translated as “divine inspiration” and possibly described as a form or means of prophecy.)

The teacher was fired from his position, and the Divrei Chaim was asked whether this was the correct decision, to which he responded in the affirmative, going so far as to say that the author of any great Torah work who is fit for it, can be said to have ruach-hakodesh.

This position seems rather problematic at first glance, given that the Gemara (Sanhedrin 11a and various other places) brings a Beraisa which states that ” משמתו נביאים האחרונים חגי זכריה ומלאכי – נסתלקה רוח הקודש מישראל, ואף על פי כן היו משתמשין בבת קול (Once the last prophets, Chagai, Zecharia, and Malachi died, “ruach haKodesh” departed from Israel, and nevertheless,they would make use of a “bas kol.”

It continues to tell how a voice from heaven once proclaimed that there was someone worthy of having the שכינה rest on him like Moshe Rabbeinu, but the generation was not worthy, and the sages assumed it was referring to Hillel!

This Beraisa seems to imply a number of things, among them:

  1. Ruach hakodesh is tied to prophecy, and when prophecy ceased, so did it.
  2. Even arguably the greatest sage of the early Tannaic period, Hillel himself, did not have “ruach hakodesh.”

The Divrei Chaim’s claim is also particularly ironic, given that the Ohr haChaim himself (Bereishis 6/3 ( states emphatically that there is not even a ריח (smell) of “Kodesh” left in our time, never mind “ruach hakodesh.” (thanks to http://parsha.blogspot.com/2011/07/or-hachaim-that-we-no-longer-have-ruach.html?m=1 )

Yet at the bottom of Eruvin 60b, Rav Idi quotes an important rule regarding Eruvin in the name of Rabbi Yehoshua ben Levi.

Although there is a rule that an entire city (at least a walled one) is considered like 4 amos, and thus counts very little towards the 2000 amos a person is allowed to walk on shabbos, this rule is not absolute, and only applies in certain circumstances.

For example, if a person’s shabbos base is outside the city, and the city fits in its entirety into the 2000 amos of his techum, it only counts as 4 amos and he earns the rest of the length of the city in the same direction on the opposite side of the city. (כלתה מדתו בסוף העיר)

However, if the 2000 amos of his techum ends somewhere in the middle of the city (כלתה מדתו בתוך העיר) , then the city counts as part of the 2000 amos, and he may not move past the point where it ends, even within the city itself.

After reporting this view in the name of Rabbi Yehoshua ben Levi, Rav Idi comments that “אין אלו אלא דברי נביאות” (lit- these are only matters of prophecy), as on a logical level, there should be no difference in the law between the two cases.- either the city should count as part of the 2000 amos either way, or be considered as 4 amos in both cases!

Rava then takes issue with Rav Idi’s comment by bringing evidence from the next Mishna that this distinction indeed exists, after which Rav Idi holds his ground and explains the Mishna in a way that it does not serve as precedent for our case, in a discussion that carries over onto Eruvin 61a.

There are various ways to interpret the comment of Rav Idi regarding Rabbi Yehoshua ben Levi’s ruling being “דברי נביאות”

  1. This could be understood literally as coming to praise and agree with Rabbi Yehoshua’s ben Levi’s words by saying that they were derived prophetically by him , without any earlier source or logical principle to back them up. This is the approach that Tosfos takes, bringing another sugya (Bava Basra 12a) to back up his view. In Tosfos haRosh, the Rosh seems to take a similar approach.
  2. Rashi, possibly unwilling to entertain the notion that Rabbi Yehoshua ben Levi experienced prophecy or even “ruach hakodesh,” takes a more nuanced view of this approach. He too, understands that Rav Idi views the ruling of Rabbi Yehoshua ben Levi positively and as being, at least to some extent, prophetic, but does not attribute this prophecy to Rabbi Yehoshua ben Levi himself. Instead, he explains that in the absence of any logical or textual evidence for his rule, he must have received it as a tradition from his Rebbe going back to something heard מפי הגבורה (by Moshe from Hashem) at Sinai! This explanation is also brought by the Ritva.
  3. Rabbeinu Chananel, seemingly unwilling to treat this ruling as any form of prophecy, seems to understand that Rav Idi simply meant that it was a גזירה of Rabbi Yehoshua ben Levi himself, without textual support or obvious logical basis. He also seems to understand that Rav Idi meant to weaken Rabbi Yehoshua ben Levi’s statement, not strengthen it.
  4. As mentioned above, it is also possible that Rav Idi is not coming to strengthen the status of Rabbi Yehoshua ben Levi’s ruling, but rather to weaken it, and possibly even rule against it. His labelling of his words as דברי נביאות could be somewhat sarcastic, as if to say that the only way he could have come up with something like that was through prophecy, which he clearly did not have.
  5. Without going so far as in the above point, it could be that Rav Idi is attributing a certain degree of prophecy to Rabbi Yehoshua ben Levi, but views such a source for halacha as inferior to one grounded in textual and/or logical support, and perhaps unauthoritative, given the principle of לא בשמים היא.

The Rif and the Rosh both state that we rule like Rabbi Yehoshua ben Levi because Rava brings a Mishna to support them, even though Rav Idi was able to explain the Mishna differently. Though they point out that Rav Idi’s main intention was not to rule differently, it seems that they acknowledge that he indeed did hold differently, or at least made his comment to weaken the authority of Rabbi Yehoshua ben Levi’s ruling rather than strengthen it. A similar approach can also be seen in the Meiri.

It seems clear from the above that most Rishonim do not take the comment of Rav Idi to mean that Rabbi Yehoshua ben Levi actually had prophecy and/or “ruach hakodesh, even if this is the most simple reading of the text.

It seems compelling that the reason they did not do so might well be because this would contradict the often quoted earlier source that “ruach hakodesh” and “prophecy” are either equivalent or at least go together, and that both ended with חגי זכריה and מלאכי .

The Tosfos, on the other hand, who do understand Rav Idi’s comment literally, need to deal with this issue, and this takes us into a study of the sugya he quotes in Bava Basra, as well as a fascinating Ramban, which I hope to go into in a couple of days when we revisit this discussion, 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.

Eruvin 59    Authoritative Translation and the “private city”



 
The wealth of modern-day translations and study-aids has made the study of our sacred texts accessible to so many people who without them, would simply be unable to study them, and for this, their merit is tremendous.
Yet there is also a downside to this, in that people who study Torah from their youth and would normally learn the original Hebrew and Aramaic naturally from the original context of their study, now tend to use these works as crutches rather than learning the necessary linguistic skills themselves from classical sources.
As so much of the original meaning is lost in translation, and one translation might give a completely different view of a word or phrase than another, this often biases the learner in favor of the translators subjective interpretation of the text, rather than training him to study the text objectively on its own merits.
At its extreme, this results in the loss of the  independent analytical skills essential for in-depth Torah study and for reaching legitimate halachik conclusions, effectively starting a chain reaction which has the ability to paralyze the entire traditional system of Torah study and halachik ruling.
Yet how is a generation whose spoken language is neither Aramaic nor biblical or Mishnaic Hebrew expected to even get started without the use of such tools?
It is clear that there is always going to be a tradeoff between exposure to unbiased original texts and the clarity provided by modern “translation-commentaries” and what is right for one, is not necessarily right for the other, but it is clear that the earlier back one can go for translations, the more legitimate one’s starting point will be.
The earliest and most authoritative “dictionary” of Talmudic language is the “Aruch”, written by Rabbeinu Nosson of Rome, an early Rishon who slightly preceded Rashi, and whose translations are used by him and other Rishonim in their commentaries.
As such, this is the first place us “uneducated” moderners should turn when faced with words that we do not understand, something our great teacher haGaon Rav Mendel Blachman שליט”א  has drummed into us (of course an authoritative Hebrew dictionary will be needed once we have the correct hebrew word and using later scholarly dictionaries such as that of Rabbi Marcus Jastrow זצ”ל  are still far preferable than jumping to the translation-commentaries of today, certainly for in-depth study if time does not allow it for the daf yomi!)
It is this approach that I would like to illustrate in today’s post, using the main topic of the daf as a case study.
Today’s daf discussed the fascinating case of an עיר של יחיד ונעשית של רבים – a private city that became public.
We have seen many times that when it comes to defining a domain as either private or public as far as the laws of Shabbos are concerned, there are several factors involved:
1.      Whether it is surrounded by halachically valid מחיצות  (partitions) or not
2.      Whether it is used/frequented by the public or not.
3.      The size or width  of the domain and its similarity to the דגלי מדבר
 
The actual ownership of the domain, although important on a rabbinic level, seems to be less of a factor regarding its biblical status, and when the above factors are combined, we are faced with 3 main categories of domain, at a biblical level:
1.      רשות הרבים – a public domain needs to be unfenced, be used/frequented by the public and have a minimum width of 16 amos.
2.      רשות היחיד- a private domain needs to be enclosed by halachically valid partitions on at least 3 sides (2 according to Rabbi Yehuda) and be a minimum of 4 by 4 tefachim.
3.      A כרמלית  – this is domain which lacks the partitions required to make it a private domain but lacks the public usage/frequency required to make it a public domain. On a biblical level, this is essentially a מקום פטור  (exempt domain)- on a rabbinical level , it is treated with the stringencies of both the above domains, and only very limited types of domains too small or high to fit into the other categories are still regarded as a מקום פטור  (exempt domain.)
In the case of our Mishna, a city starts out as a “private city” ,undergoes a metamorphosis which results in it being a “public city” ,and the Mishna rules that the entire city may be included in an eruv.
In contrast, if a city starts out as a “public city” and becomes a “private city”, certain restrictions of a public city still apply to it and one needs to leave a small part of it outside the eruv.
It is not immediately clear from the Mishna what the properties of the private city and public city mentioned are, and what exactly changed to make the city take on the opposite status.
After all, if a “private city” is a pure רשות היחיד  , why should it need an eruv at all, and if  a public city is a pure רשות הרבים  , then how does an eruv help anymore than it does in a regular רשות הרבים  which according to most opinions cannot be “privatized” by a regular eruv?
It is thus not surprising that the Gemara asks immediately what the phrase עיר של יחיד  is referring to and Rav Yehuda suggests that a prime example of such a construct is the “דאיסקרת דריש גלותא” .
In this case, The editor’s note on the side inform us that the ערוך ‘s version of the text has the word “דסקרתא”, and this is also the version in Rabbeinu Chananel on the daf,an invaluable clue that allows us to look up the word in his ערוך  itself.
Examining the words ourselves, we see that “דסקרתא”  is made up of “דס”  and “קרתא” ( city) , and immediately can guess that this is some sort of city belonging to the exilarch, the powerful political head of the Jewish communities of Babylonia.
The Aruch translates it simply as “עיר של ריש גלותא”- the city of the exilarch
In other words, the city is
i.                    Owned and/or controlled  by one individual (“של”)
ii.                  That one individual is a powerful public figure with government supported authority over property rights  ( -“ריש גלותא” see Sanhedrin 5a re נטילת רשות)
 
     We note that there is no inherent assumption that this city is surrounded by walls or partitions as is the case with a halachik רשות היחיד.
It follows that whatever changed to make it into a “עיר של רבים ”  must involve one or more of the above factors, and while the Gemara proceeds to reject this definition and accept a different one, we have now at least set the stage for beginning to understand what the issues at play are!
 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.