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
- No mention is made as to whether the relocation is temporary, as in a visit, or permanent.
- 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:
- The first rule implies that one must refrain from work in deference to his own custom
- The second rule implies that one should not refrain from work in order not to “stick out.”
- 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.
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.
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:
- מנהג המקום (the local minhag) binds all inhabitants (the Mishna.)
- 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)
- One should not act contrary to local practise מפני המחלוקת (the Mishna)
- A family minhag can be binding, based on the passuk in Mishlei. (the case of בני ביישן )
- 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.
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.
In earlier days, we did not have the level and scope of kosher supervision which is virtually taken for granted. Meat products were always purchased from reliable sources, and there were various decrees made requiring milk, cheese, and bread to be produced by or in the presence of Jews but many other products were purchased from regular suppliers and assumed to be kosher by default.
With the advent of the industrial age and the listing of ingredients on products, it was not uncommon to rely on these ingredients lists to accept products as kosher, and it is only in recent decades that a hechser can be found for virtually every type of product imaginable, including some, such as bottled water, which certainly do not require one.
In order to make an educated decision as to which kinds of products required certification, which can be assumed by default to be kosher, and which can be treated as kosher based on ingredients, it is essential to have a broad and deep knowledge of all the halachik principles and laws pertaining to mixtures of kosher and non-kosher substances, AND ALSO of the facts on the ground in each locale where products are produced and stored.
I do not profess to have this level of knowledge, and thus defer to experts in these matters, but as is our mandate, would like to at least highlight some of the issues from our dapim that relate to mixtures containing chametz on Pesach as well as mixtures that might contain non-kosher ingredients throughout the year.
One argument made by some people (often layman but also what appears to be a small minority of Bnei-Torah) who do not require certification for many shelf-items that contain mostly visible kosher ingredients is that any non-kosher ingredients do not form a significant part of the makeup and are thus בטל (nullified) by the majority of kosher ingredients or even בשישים (in sixty times.)
Others might not go this far but are happy to simply read the ingredients and make decisions based on what is listed. They sometimes argue that even if ingredient lists are not completely accurate and the government allows small quantities of certain ingredients to be excluded from these lists, such amounts are clearly negligible and the rule of בטול applies, not only by majority, but even by 60 times!
Yet as we shall see, while there might be some merits to the arguments which allows one to rely on ingredients, assuming one is in fact familiar with each ingredient and what it is derived from (enzymes, flavorings, colorings spring to mind here,) this is also not quite so simple for various reasons, some of which I hope to address today.
The opening dapim of this chapter contain some of the most important principles pertaining to kashrut in general, and chametz in particular, namely the rules regarding the halachik treatment of mixtures containing both permitted and forbidden foods.
When a mixture contains both chametz and non-chametz material, for example, it is important to determine whether the mixture is defined based on its forbidden (chametz) ingredients or based on its permitted ingredients (non-chametz.)
One of the rules used to define the status of such a mixture is the biblical rule of בטול ברוב – a minority of either permitted or forbidden ingredients is nullified by the majority with opposite status, and the mixture takes on the status of its majority ingredients.
However, there are times, either on a biblical or rabbinical level, where even a minority of forbidden ingredients can impart its forbidden status to the entire mixture, and though this can apply in all areas of halacha, chametz on Pesach in one of the areas where we are most stringent in this regard.
The opening Mishna of the chapter lists various things that while forbidden and punishable on Pesach, are not subject to the extremely severe penalty of כרת .
Though there is some dispute amongst the Rishonim as to whether the Mishna is referring to a prohibition against eating these things, or even against owning them, it seems to be agreed upon that the things listed therein can be divided into 2 categories:
- תערובת חמץ גמור – a mixture containing fully fledged chametz
- חמץ נוקשה – substances that have only partially fermented and are not fit for normal eating, but rather only for eating in an emergency.
The Bertenura explicitly states that the first 4 fit into the former category whereas the last 3 fit into the later category, and this grouping could be hinted at by the Gemara itself, which refers to “4 states” and “3 professions,” as well as later on daf 43.
For our purposes, I wish to focus on the first category, and the 4 examples given by the Mishna:
- כותח הבבלי (Babylonian ‘kutach’ [roughly translated as dip])- the Gemara notes that this contains 3 unhealthy ingredients, namely נסיוני דחלבא (the fatty milky residue left over from cheese making), מילחא (salt – according to Rashi specifically מלח סדומית), and קומניצא דאומא (moldy bread)
- שכר המדי (Median beer)- the Gemara notes that this contains barley water (what else it contains is not mentioned explicitly )
- חומץ האדומי (Edomite vinegar)- the Gemara identifies this as wine vinegar that barley was added to in order to assist the fermentation process.
- זיתום המצרי (Egyptian ‘zeytun’)- The Gemara says that this consists of one third barley, one third קורטמי (a kind of herb used among other things to treat impotence-see Gittin 70a), and one third salt.
In all 4 cases, it appears that there is a significant minority of ingredients that contain chametz, and despite the usual rule of following the majority, the Gemara derives from כל מחמצת (“any leaven”) that one is forbidden to eat even such mixtures.
The Gemara also notes that this stringency is not universally accepted but is the view of Rabbi Meir and/or Rabbi Eliezer (see debate between Rav Yehuda and Rav Nachman in this regard on daf 43a)- the Chachamim hold that at least on a biblical level, there is no such prohibition for such mixtures!
There are various possibilities regarding when and why this stringency would apply:
- The moment a kezayis of the mixture is eaten בכדי אכילת פרס (In the time it takes to eat a loaf of bread- the usual period used for measuring a kezayis) , seeing as we view the entire mixture as chametz.
- Only if one eats a kezayis of the actual chametz contained within the mixture during the above period.
- If the entire mixture contains the taste of the chametz, and a kezayis of the mixture is eaten within the above period
The above are all discussed on the daf in the context of the principles of התר מצטרף לאסור and טעם כעיקר, an understanding of which is vital for any student of הלכות תערובות .
The first principle, subject to debate, is that when it comes to certain prohibitions, when ) אסור a prohibited substance) is eaten together with התיר (a permitted substance), the permitted substance joins together with the prohibited one to make up the kezayis for which one is liable.
It is thus possible to eat less than a kezayis of the actual אסור and still be liable.
The second principle tells us that if a permitted substance contains the taste of a forbidden substance (such as water in which grapes were soaked, for a nazir), even if there is an insignificant amount of the original forbidden substance in it, the entire substance is viewed as אסור.
Hopefully, we shall have more time to discuss these in the future- due to time limitations, I have been forced to be brief of late, yet one can immediately see that it is important to be very sure what ingredients are contained in products that one buys and that sometimes even miniscule amounts of non-kosher substances can render the entire product non-kosher, in the case that they give taste to the mixture, and as we shall hopefully see in future discussions, under various other circumstances too.
As such, it seems clear that when it comes to relying on ingredients alone, even in a place where kosher certified products are not available, the layman should not make these decisions himself, but should seek guidance from the kind of experts mentioned above, who is well versed both in the theoretical and practical matters required to make such decisions.
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.
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.
There is a well-known dispute between Rabbi Akiva and Chachamim regarding מעשר שני (the second tithe that is supposed to be eaten in Jerusalem.)
Rabbi Akiva holds that this tithe is ממון גבוה (the property of Hashem, so to speak) which the owners have the right to eat under certain conditions.
The Chachamim hold, in contrast, that it is ממון בעלים, the property of the owners, albeit with certain restrictions that apply to where it may be eaten.
At the bottom of daf 37b, Rav Asi lists 3 ramifications of this debate:
- A loaf of maaser sheini – according to Rabbi Meir, חלה need not be separated, whereas according to Chachamim, it must be.
- Matza of maaser sheini- according to Rabbi Meir, one may not fulfil one’s obligation with it on pesach night, whereas according to the Chachamim, one may.
- An esrog of maaser sheini- according to Rabbi Meir, one may not fulfil one’s obligation on the first day of sukkot with it, whereas according to Chachamim, one may.
The implication of Rav Asi’s words are that both Rabbi Meir and Chachamim agree that one needs to own the matza one uses on pesach night, just like with esrog and the dough which challah is separated from, the only debate is to whether a person is the owner of his maaser sheini or not.
Rav Papa immediately questions this ruling :
When it comes to the obligation of separating challah, the passuk specifically refers to “עריסותיכם” (your loaves), and regarding estrog (and the other 4 species) it specifically says “ולקחתם לכם” (and you shall take for yourselves)- yet we do not see any such requirement regarding מצה!
Rava answers that we learnt his requirement from a גזירה שוה (comparison based on similar usage of language.)
Both מצה and the dough which requires challah to be taken are referred to as “לחם” (bread) and both thus have to belong to the person.
Given that this is derived from one of the 13 principles used to interpret the Torah, it would seem that this is a biblical requirement without which one might not fulfil his obligation.
The Gemara then brings a beraisa to support the ruling of Rav Asi:
This beraisa says explicitly that maaser sheini is exempt from challah according to Rabbi Meir and liable to challah according to Chachamim.
The wording of the beraisa is so similar to Rav Asi’s first law that the Gemara wonders what is being taught by this.
It answers that the Amora meant to bring this beraisa as a support for ALL 3 rulings of Rav Asi- This is not a foregone conclusion for we might have thought that Rav Asi’s נפקא מינה (practical ramification) was limited to challah where the word “עריסותיכם” is mentioned twice , but that when it comes to matza and esrog, even Rabbi Meir would agree that one can use maaser sheini, despite the גזירה שוה and word “לכם”.
The obvious difficulty with this suggestion is that it does not seem to make sense ממה נפשך (whatever you say.)
If maaser sheini is ממון בעלים, then it belongs to the owner of the produce and all 3 should be valid.
If on the other hand it is ממון גבוה, it does NOT belong to him and the fact that the requirement for ownership is mentioned once and not twice doesn’t change that!
Anticipating this issue, Rashi explains that we might have thought that the single mention of the requirement for ownership is coming to exclude a stolen or borrowed item, not מעשר שני which one is at least permitted to eat , and that only in the case of challah (and possibly מצה via ג”ש but this is another subtlety in the text that requires study) where it is mentioned twice, is מעשר שני also excluded.
The essence of Rashi’s explanation is that there are two different levels of lack of ownership:
- In the case of something that one has stolen or borrowed, one is not permitted to eat the item but must return it (one who is שואל (borrows) an item is permitted to make use of it as is but not to eat or destroy it.)
It is thus considered completely detached from him ownership-wise .
- In the case of מעשר שני , even Rabbi Meir agrees that although it is not one’s property, one is permitted to eat it. This gives a person a certain level of ownership in it, which we might have thought would be enough for the mitzva of esrog (and possible matza.)
The fact that the Gemara brought the Beraisa as a proof for all 3 rulings of Rav Asi, however, shows that there it holds that there is no distinction in practise, and that all 3 mitzvos require full ownership. (see in contrast Sukkah 35a where Rabbi Chiya bar Aba indeed holds that permission to eat the esrog is enough to make it fit for the mitzva!)
If we have read the sugya correctly, it seems to follow that just like the esrog has to belong to the person using it for the mitzva on the first day of sukkos, so also the matza has to belong to the person eating it for the mitzva on the first night of Pesach!
Not only would stolen matza not do the trick, but neither would borrowed matza!
This could have various ramifications:
- If many people put their matza in the same oven to bake, it would be necessary to ensure that everyone gets his own matza back, or at least make some form of valid transaction among one another that transfers ownership of each matza to whomever gets it back from the oven. We have indeed seen a similar idea regarding lulavim left in shul over shabbos. (Sukkah 42b)
- If one borrows matza from one’s neighbor, one might need to take full ownership of it before using it for the mitzva.
- If one eats at someone’s else’s home and eats from HIS matzos, one might need to ensure that the owner legally (either implicitly or explicitly ) gives the matza to him as a gift before eating it, something that does not appear to be widespread practise.
The Tosfos seem to take the requirement for matza to belong to the eater seriously enough that they ask why the Gemara earlier brought other reasons for invalidating מצה של טבל (matza that has not been tithed.)- it should be unsuitable simply because it does not fully belong to the eater! (see Tosfos on 38a for the two different answers he gives.)
Yet the Rambam (Chametz uMatza 6/ 7 ), while ruling that stolen matza may not be used, groups it together with other things that one is not permitted to eat, such as טבל and מעשר ראשון from which תרומת מעשר has not been separated.
He rules that anything which one does not say ברכת המזון ( grace after meals) for due to the act of eating it having been a sin, may not be used for matza, but that anything on which one does say it may indeed be used.
It seems clear that the Rambam is only concerned about the aveira aspect and not the lack of ownership.
This reason is also backed by the Yerushalmi (quoted by the Rosh and others) that specifically brings this reason.
Consistent with the above, the Rambam also allows one to use maaser sheini for matza, despite the fact he rules like Rabbi Meir that maaser sheini is ממון גבוה ! (Maaser Sheini 3/24)
The simple explanation of this Rambam seems to be that he does not rule like Rav Asi who requires the matza to belong to the eater, but followers the Yerushalmi that simply requires it to be something that one is halachically permitted to eat, due to the concern of מצוה הבאה בעבירה.
As normal practise is to follow the Bavli in a dispute with the Yerushalmi, this is unusual, but not entirely unprecedented for the Rambam, and in this case, it could be because Rav Asi’s ruling is subject to dispute by Rabbi Chiya bar Aba in the parallel sugya (Sukkah 35a.)
As such, the Rambam might hold that so longer as the person eating matza has permission from the owner to do so, and no sin is being committed by so doing, he fulfills his obligation, irrespective of whether he has full ownership of it or not.
In the case of the multiple people who put their matza in the oven and receive different matzos back, the fact that people implicitly give permission to others to eat their matza in exchange for them reciprocating might be sufficient according to the Rambam to remove any concern of מצוה הבאה בעבירה even if ownership itself is not transferred, and the same would apply to borrowed matza.
On the other hand, according to Tosfot and other Rishonim who seem to see Rav Asi’s ruling as authoritative (see מהר”ם חלואה who specifically rules this way regarding someone else’s matza) it seems that explicitly having in mind to transfer ownership might be required.
When it comes to eating matza given out by one’s host, it is necessary to determine what the halachik status of the host’s action is:
- He could be giving it as a complete gift to the guest
- He could simply be giving permission to the guest to eat HIS food without giving him ownership over it. This certainly seems to be the situation at a simcha buffet where one is permitted to eat whatever one wishes but may not take anything home with him, even once put on his plate.
If the former is correct, one would have to deal with the prohibition against acquiring things on shabbos or Yom-Tov, but if a solution were found for this issue, one would fulfill one’s obligation according to all opinions.
However, if the second option his correct, then whereas according to the Rambam, permission to eat the matza might indeed be enough, according to the opinions that require complete ownership, one would need to ensure that he acquires the matza legally, assuming this is in fact possible on Yom-Tov.
When it comes to matza which one has borrowed from a neighbor, it seems that just like one may not use a borrowed esrog or lulav for the mitzva on sukkos, one may not used borrowed matza for the mitzva on pesach either.
However, the consensus of the poskim (Taz O.C. 454/4 , Mishna Berura 454/16) seems to be to follow the reasoning of the Ritva (Sukkah 35a) who claims that borrowing matza is intrinsically different to borrowing an esrog.
When one borrows a consumable item like matza, the lender knows that the borrower is going to eat it and will not be returning the very same piece of matza that he received.
This gives the transaction the status of a הלואה (monetary loan,) where we apply the rule of מלוה להוצאה נתנה (a loan Is given to be spent.)
Unlike when one borrows an item for use and eventual return, borrowed money (or in this case food) automatically became the property of the לוה (borrower) and a debt is created whereby the borrower owes the lender the equivalent amount.
In short, while there is reasoning to allow one to fulfill one’s obligation with one host’s matza, given that we are dealing with a biblical obligation, one would do well to consider all the above issues and it might indeed be preferable to bring one’s own matza with or make a valid transaction on the matza one is going to eat before Yom-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
There are many topics that I would have loved to address on this daf, including the issues of קטניות on Pesach, of מצה עשירה (matza made with eggs or fruit-juice), and the general halachik principle of אין אסור חל על אסור (one prohibition does not fall on top of another.)
However, due to time constraints, I have settled on a preliminary analysis of the former, namely the basis for the Ashkenazi custom to avoid eating species that are similar to grains on Pesach, known as קטניות .
The Mishna lists different species that can be used for making matza, namely the 5 grains: wheat, barley, rye, oats, and spelt. (I have given the generally accepted translations though the Gemara and mefarshim of course do spend some time discussing their precise identity.)
The Gemara infers from this that אורז ודוחן (according to many views, rice and millet), may not be used for matza, and explains that this is because the mitzva of eating matza is compared to the prohibition of eating chametz, and thus only species that can become chametz can be made into matza.
Seeing as אורז ודוחן cannot become chametz, but rather rot when left to ferment, they may thus not be used for matza.
The Gemara notes that the Mishna’s view is clearly against that of Rabbi Yochanan ben Nuri who holds that אורז ודוחן are considered a form of grain and one is liable to כרת for eating them in their chametz form.
The Gemara’s source for this view of Rabbi Yochanan ben Nuri is a Beraisa that reports forbidding these two species because they are קרוב להחמיץ (close to becoming chametz.)
The Gemara was unsure whether he means that they become real chametz very quickly, or that they become close to chametz but not real chametz, in other words, become chametz on a rabbinical level.
It clarifies that he meant that it becomes real chametz on a biblical level, quickly, based on another Beraisa where he is quoted as saying that one who eats it in its chametz state is liable to כרת – obviously, one would not be liable to כרת for a rabbinical prohibition.
We are left with a clear debate between the chachamim and Rabbi Yochanan ben Nuri regarding whether אורז ודוחן can become chametz on a biblical level or not and, based on that, whether they may be used for matza or not.
As it is somewhat improbable that they would be debating the existence of a physical phenomena (מחלוקת מציאות ), something which is easily assessed by observation , it is more likely that they are debating what the very definition of chametz is, something which requires further analysis.
Given that there is a סתם משנה (anonymous Mishna containing no debate) against Rabbi Yochanan ben Nuri, it seems likely at this point that the halacha will rule against him in any case, and that אורז ודוחן neither become chametz (at least on a biblical level) nor may be used for matza.
Several observations and clarifications are required, among them:
- From the fact that the Gemara even entertained the possibility that these two species would be suitable for matza, if not for the comparison in the passuk, there must some significant property that they share with the 5 grains which would make them suitable in theory for matza. After all, there is no need to prove that matza may not be made from carrots or cucumbers. The existence of such a property is even more evident from the fact that Rabbi Yochanan ben Nuri considers them to be fully fledged grains.
- Though I have intentionally avoided doing so till now, we need to identify precisely which species אורז ודוחן refer to.
- We need to verify whether the two categories mentioned in the Mishna and Gemara, namely
- the 5 grains which may be used for matza and are subject to the prohibition of chametz
- אורז ודוחן which may not be used for matza and are not subjection to the prohibition of chametz
are exhaustive, or whether there are other species that fit into them as well, due to their sharing common properties, after all, אין לומדין מן הכללות (we do not rely entirely on rules of psak-see post on Eruvin 26.)
- We need to ascertain whether according to Chachamim, אורז ודוחן are not subject to the prohibition of chametz at all, or whether they might still be subject to rabbinical prohibition, due to whatever common property we have identified that they share with the 5 grains.
- the property that we are searching for serves as a common denominator between the 5 grains and kitniyos
- אורז ודוחן are indeed kitniyos
- The above species are only examples of kitniyos, but the same law applies to all members of this class.
- We can show that the Chachamim agree that this class are still subject to a rabbinical prohibition
THEN we will have discovered Talmudic grounds for the Ashkenazi custom to avoid kitniyos on Pesach, at least once there is reason to suspect they have become “chametz” on a rabbinical level (חמץ נוקשה).
In the absence of any of the above, it would appear that this custom has no Talmudic precedent from this sugya.
Furthermore, should we conclude
- that the Chachamim hold that there is not even a rabbinical prohibition
- point ii above is correct, and אורז ודוחן are indeed קטניות, it would actually run contrary to the explicit conclusion of the Talmud.
One who takes the time to investigate the various Rishonim on this sugya, as well as the parallel sugya and Rishonim on it (Brachos 37a), will see that there is much discussion and debate regarding all the above, and that this sugya plays more of a role than many would think not only in the lenient custom of the Sephardim, but also the stringent one of the Ashkenazim, though the trend in the classical sources certainly seems to provide more support for the permissive view.
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.
One of the guiding principles of these posts, as taught to me by my Rebbeim, is that while it is both impossible and disingenuous to resolve complex questions based on isolated sugyas without considering all sugyos in the shas that pertain to the relevant question (obviously the domain of senior Talmidei-Chachamim) , passing through daf of Gemara superficially without taking note of things that could impact these questions is a waste of an incredible opportunity to build one’s database, and likely a form of בטול תורה.
I would like to touch briefly one how some topics we have discussed before in our posts are enriched by these daf:
סיכה כשתיה and deodorants on Pesach:
In our post on Shabbos 86a (please refer there for background,) we discussed using non-edible substances containing chametz (such as deoderant containing wheat-based alcohol) on one’s body on Pesach.
This was based on the Mishna (Shabbos 86a) which says that regarding Yom-Kippur, the rule is that סיכה כשתיה (annointing is like drinking( and not only drinking chametz liquids but annointing with them is also forbidden (albeit as noted there, not treated as stringently.)
We discussed whether this rule applies in other areas of halacha as well, specifically chametz on Pesach, in which case although the prohibition of deriving any benefit from chametz on Pesach only applies to chametz that is fit for a dog to eat, something that is fit for annointing such as deodorant might be considered as if it is fit for drinking and thus also forbidden (please refer to that post for a more detailed analysis of this and other factors involved.)
At the bottom of Pesachim 31b, the Gemara quotes a Mishna which forms much of the discussion on Daf 32a.
This Mishna (Trumos 6/a) tells us that a זר (non kohain) who eats תרומה (the portion separated for the kohain) בשוגג (unintentionally) must compensate the kohain with the קרן (same amount of fruit) plus חומש (a fifth penalty [actually a quarter of principle, making the penalty a fifth of the total paid]) and that this applies also to one who drinks תרומה or anoints oneself with it.
Rashi (as well as the Bartenura on the Mishna) explains that although the Torah only requires this penalty of one who ate תרומה, and not one who damaged it (as the Gemara derives later on the daf,) we know from elsewhere (Yoma 76b) that סיכה כשתיה (annointing is like drinking) and for this reason, one who anoints himself unknowingly with תרומה is also liable to this penalty.
As such, we have seen at least one other area of halacha, namely the prohibition of eating תרומה, that the principle of סיכה כשתיה applies, at least according to Rashi, and also according to this Mishna itself
(see ר”ש who points out that this is based on a ת”כ ), in the absence of some other explanation.
While we can still not conclude that this is the case regarding chametz on Pesach, from this Mishna, things are starting to look more that way, though we have still not shown that the principle extends so far as to make something that is ראוי לסיכה (fit for annointing) as if it is ראוי לשתיה (fit for drinking.)
All the above is based on this Mishna and daf, but a thorough study of the sugya in Yoma and elsewhere will show that many Rishonim say that Yom-Kippur and תרומה are indeed exceptions, and discuss whether even there, the prohibition is only דרבנן, just another illustrating of the guiding principle we opened this post with.
קים ליה בדרבה מינה – the greatest of two punishments.
One of the essential principles when it comes to punishments is that if a person performs an action which involves more than one prohibition, and thus more than one punishment, he receives the more severe punishment and is exempt from the lighter one.
There are two main sources for this principle, one regarding liability to payment for damages caused by a capital transgression (אין אדם מת ומשלם – see Kesubos 36b), and one regarding liability to payment for damages caused by corporal transgressions (אין אדם לוקה ומשלם- see Makkos 13b)
There is a debate as to whether the former principle replies only to transgressions subject to death by the courts, or whether it also applies to transgressions subject to כרת , with רבי נחוניה בן הקנה holding that כרת treated like a death penalty in this respect (as recalled from daf 29a.)
The Mishna at the bottom of Pesachim 31b says that if a person eats chametz תרומה on pesach unknowingly, he pays both the principle and the fine, but if he does so intentionally, he is exempt not only from the penalty (which only applies for unknowing transgression), but also for the principle.
After much discussion regarding why this is so, the Gemara on daf 32a seems to conclude that the mishna reflects the view of רבי נחוניא בן הקנה, who holds that the rule that one who is liable to death for an action is exempt from monetary obligations that come from the same action applies also to someone liable to כרת.
Seeing as one who eats chametz on Pesach intentionally is liable to כרת, he cannot also be liable to compensate the kohain.
While certainly not the last word in the debate, a סתם משנה (anonymous Mishna with no debate) that supports this view certainly could add to its weight, unless there is a later Mishna which debates the matter (סתם ואחר כך מחלוקת), something we shall have to keep our eyes open for!
In various posts on the subject (see post on Shabbos 72 for background), we have discussed the rule pertaining to someone who intends to perform an action on a permitted item and lands up performing it on a forbidden one.
For example, one who intends to cut something detached from the ground on shabbos and lands up cutting something attached, or one who intends to eat permitted fats and lands up eating forbidden fats.
We saw the general rule that when it comes to shabbos, one is exempt for such actions due to requirement for מלאכת מחשבת (significant and calculated melacha), and when it comes to actions one derives pleasure for, such as forbidden fats (or forbidden sexual relations), one is liable.
There is a degree of unclarity as to what happens with prohibitions that one does not derive pleasure from but are not shabbos related, though Chazal did seem to derive a general exemption for מתעסק from the words “וחטא בה” (Kerisos 19a.)
We also saw a dispute between Rashi and Tosfos regarding what type of מתעסק one is exempt from on shabbos.
Rashi understood the exemption to pertain only to one who intends to cut one item that he knows to be detached but whose hand slips and lands up cutting a different item which was attached.
However, if he intends to cut a certain item thinking it is detached, and after successfully doing so, realized that the same item had been attached, he could be liable.
In contrast, Tosfos holds that the main discussion centers around the later case, and that in the former case, one would be exempt even if he had intended to cut an attached item but landed up cutting a different attached item!
On daf 32-33, there is much discussion about the prohibition of מעילה, deriving benefit from הקדש ( sanctified things), something we also touched on earlier (post on Pesachim 25-26) in discussing הנאה הבאה לאדם בעל כרחיה .
One of the things discussed is the source brought in a Beraisa for exempting one who performed מעילה intentionally from the required sacrifice, namely the words in the verse “וחטאה בשגגה”
The Beraisa immediately asks why a special source is required regarding מעילה, where more serious intentional transgressions for which one is liable to כרת also do not require a קרבן.
It responds that from a different perspective, מעילה is actually more serious than the other prohibitions, and there are various versions in the Gemara as to what precisely the Beraisa says and means.
Two views, those of מר בריה דרבנא and רב נחמן בר יצחק relate directly to the sugya of מתעסק and indeed portray it from a different angle.
The former claims that מעילה is stricter than other prohibitions in that one is liable even בלא מתכוין (without intention.)
For example, whereas if one intends to tear a detached item on shabbos and lands up cutting an attached item, he is exempt, if one intended to warm oneself with regular wool and landed up warming himself with wool from an animal set aside for a burnt offering, he is liable.
We note that:
- As expected, both Rashi and Tosfos explain the case of מתעסק in shabbos and with מעילה consistently with their explanations elsewhere
- The Gemara seems to take it as given that shabbos is only an example of the exemption but that it applies to all other prohibitions as well, other than מעילה, and Rashi actually brings both the source of מלאכת מחשבת regarding Shabbos and “וחטא בה” regarding other mitzvos, noting that there is no such מעוט (exclusion) regarding מעילה.
- No mention is made here of the fact that we have seen in other sugyot on the subject that prohibitions that one derives pleasure from (presumably most prohibitions) also produce liability even for מתעסק.
- Although this indeed seems to be the classic definition of מתעסק in the sugyas we have studied (at least according to Rava), The phrase מתעסק is not used by מר בריה דרבנא but rather the phrase אין מתכוין .
In contrast, רב נחמן בר יצחק explains that מעילה is stricter than other mitzvos in that one is liable for מתעסק in the case of מעילה unlike in other mitzvos where one is exempt.
He gives the example of one who intends to lift a detached item on shabbos and lands up tearing an attached item, who is exempt, as opposed to one who puts his hand into a vessel containing oil of הקדש (consecrated oil) intending simply to remove an item from it but lands up annointing his finger in the oil, who is liable.
We note that:
- Unlike מר בריה דרבנא, רב נחמן בר יצחק does refer to the phrase מתעסק as opposed to אין מתכוין.
- רב נחמן בר יצחק gives examples of מתעסק according to Abaya in the other sugyas we have studied, as Rashi explains, where one intends to do a permitted act (lifting) and lands up performing a forbidden act (tearing), seemingly agreeing with Abaya that in the case referred to by מר בריה דרבנא, this would be considered like regular שוגג even on shabbos and one would be liable.
The above observations could be invaluable in understanding the different views regarding howמתעסק works and how it relates to דבר שאין מתכוין and הנאה הבאה לאדם בע”כ.
Hopefully we shall have a chance to return to them soon!
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.
In the previous post, we noted that the Gemara seems to be leaning towards following Rabbi Shimon’s view, that the prohibition of benefitting after Pesach from Chametz that was owned by a Jew over Pesach is only rabbinical in nature and is essentially a קנס (fine) for transgressing the biblical prohibition of owning chametz on Pesach (.בל יראה ובל ימצא)
We also noted that seeing that this is a fine, there is a strong argument that it should only apply to chametz that a Jew intentionally, or negligently owned on Pesach, but not for chametz that he owned unknowingly (שוגג) or against his will (אונס).
However, there are indeed times when Chazal imposed a fine even for unknowing neglect (see for example Shabbos 38a) regarding one who cooked on shabbos unintentionally) and it is certainly still possible that they did so in the case of chametz unknowingly or unintentionally owned by a Jew on Pesach too.
It certainly seems logical that if a Jew failed to find some chametz during the search but performed בטול, thus avoiding the prohibition of בל יראה ובל ימצא completely, that the chametz should not be forbidden after Pesach, and this certainly seems to be backed up by the wording of the Mishna and Rabbi Shimon that specifically refers to בל יראה being the reason for the prohibition.
Yet, we noted that the Rambam rules that even chametz that was in a Jew’s possession on Pesach unknowingly or against his will is forbidden after Pesach for perpetuity, and that many Rishonim extend this prohibition even to when בטול has been done!
The Rosh, though himself opining that if בטול had been done, the chametz should be permitted, notes that this is subject to a dispute in the Yerushalmi )Perek 2, halacha 2) where Reish Lakish permits chametz that one declared הפקר (ownerless) before Pesach and Rabbi Yochanan forbids it as we are concerned people will be מערים (act deceitfully) and claim they declared chametz ownerless before Pesach when they did not do so.
Assuming that the Bavli does not disagree with the Yerushalmi, it would follow based on the general rule that Rabbi Yochanan’s rulings are more authoritative than those of Reish Lakish, that we should follow Rabbi Yochanan and forbid even chametz that one was מבטל before Pesach despite the fact that one never transgressed the prohibition of בל יראה ובל ימצא!
Nevertheless, this stringency seems to be absent from the Rambam, and some Rishonim (such as the Ramban, Ritva and Ran) attempt to prove from the Bavli itself, on our daf, that the prohibition applies even if one unwillingly owned chametz on pesach, or perhaps even if one did בטול!
The Mishna on 30b tells us that if a non-Jews lends money to a Jew using the Jew’s chametz as surety, the chametz is permitted after Pesach.
Conversely, if a Jew lends money to a non-Jew using the non-Jew’s Chametz as surety, the chametz is forbidden after Pesach.
The Gemara clarifies that this refers to a case where the lender kept the chametz in his possession as surety, the borrower failed to pay on time, and the chametz thus automatically went into the ownership of the lender.
So long as the original stipulation was that in case of failure to pay on time, the surety would become the property of the lender retroactively from the time of the loan, the chametz is then seen as to have belonged to the lender over Pesach, and if the lender is not Jewish, the Jew will be permitted to derive benefit from it after Pesach.
What would happen if there was no such stipulation? The Chametz would then still have belonged to the Jew over Pesach and would thus be forbidden to him even after Pesach.
The implication is that this is the case even if the Jew wanted to repay the money and reclaim the chametz to destroy before Pesach, but did not have the money to do so, in which case he would have owned the chametz on Pesach due to factors beyond his control.
It is this sugya that the Magid Mishna (on above quoted Rambam) brings as the source for the Rambam’s stringency, though we should note that the implication of this sugya is that this would also be the case even if he performed בטול – otherwise it would not be beyond his control as he could simply perform בטול on it and avoid the prohibition entirely- yet the Rambam makes no mention of going this far.
Yet it is a sugya later on daf 31b that many Rishonim (see Ramban, Ritva, and Ran) bring to prove that the Chametz of a Jew that was not disposed of correctly over Pesach is forbidden after Pesach, even if the failure to do so was unknowing (שוגג) or unintentional (אונס) , and even if בטול was done and he did nor transgress anything at all.
The Gemara brings a Beraisa which discussed a shop owned by a Jew and whose merchandise is also owned by a Jew, but whose workers are non-Jewish.
According to the version of the Gemara we have, as well as that of Rashi, if Chametz is found in the shop after Pesach, its is forbidden, as we assume that it was part of the inventory that had not been disposed of correctly before Pesach and did not belong to the worker.
Conversely, if the shop and inventory belong to a non-Jew and the workers are Jewish, chametz found there after Pesach is permitted as we assume that it is part of the inventory and does not belong to the Jewish workers.
However, Rabbeinu Chananel has a different version of the Gemara, quoted by the above mentioned Rishonim, that permitted the chametz in the first case and forbade it in the second, always assuming that the chametz belonged to the workers and not to the owner of the shop or the inventory!
The Ramban explains that because the worker probably dropped the chametz before Pesach and is probably unaware where he dropped it (or he would have gone back to remove it,) he must have been מתיאש (given up hope) of getting it back, which essentially makes it ownerless, as if he actively nullified it.
Yet, the chametz is still forbidden, which proves that even if בטול was performed and the prohibition of בל יראה was not transgressed, the chametz is still forbidden after Pesach. The Ran adds, probably based on the above-quoted Yerushalmi, that this is to prevent people from being מערים (sneaky) and declaring it ownerless after Pesach.
The above proof, however, seems to assume that יאוש ,בטול and הפקר work in similar ways and that a lost item that one has despaired of has the status of הפקר, or at least of something that one has nullified, something anyone who has studied the earlier sugyas of בטול and the sugyas of יאוש in אלו מציאות know is not to be taken for granted.
If anything, יאוש seems to be a weaker form of detachment that הפקר, in that it only works if the lost item came into the hands of the founder AFTER the owner had despaired of it (see Tosfos, B.K. 66a who makes that point. )
As such, according to this view of יאוש, the fact that chametz is still subject to the prohibition of חמץ שעבר עליו הפסח after יאוש cannot serve as a proof that it is still subject to that prohibition after בטול, particularly if one holds that בטול includes a declaration of הפקר within it.
- the Rambam makes no mention of חמץ after בטול
- the proof brought by the Ramban and the Ran do not work with the version of the Gemara in front of us, which is also that of Rashi, Rav Hai Gaon, and the preferred girsa of the Meiri.
- The proof does not work with the view of the Tosfos regarding יאוש
- The Rosh himself says that there should be no prohibition if בטול has been done
- The Rif makes no mention of this case at all, and it appears that neither does the Rambam
It seems to me that the view of the Yerushalmi , the Ramban, and the Ran is not accepted by most Rishonim, and that particularly as we hold like Rabbi Shimon that חמץ שעבר עליו הפסח is מדרבנן, there should be little reason to be stringent, at least in theory.
Yet, the Tur (O.C. 448), and Shulchan Aruch (O.C. 448/5) rule stringently even if בטול was done, and most Achronim (see for example M.B. there ) appear to concur, while suggesting that one could possibly be lenient if one performed the check properly, was unaware of the chametz and also did בטול.
This could be because the Mechaber follows his explanation of the Rambam in Kesef Mishna, which as we pointed out, seems to indicate that he is stringent even if בטול was done, despite not having said so explicitly.
In case of great need, further guidance should be sought.
In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l ( Rabbi Ben Isaacson of blessed memory), whose love of Torah, passion for justice, and acts of kindness inspire everything I do.
We are already aware that it is forbidden to eat, derive benefit from, or own Chametz during Pesach itself, and that this prohibition extends forwards to the afternoon of Pesach eve, from midday onwards.
The Mishna on Daf 28a tells us that whereas chametz that belonged to a non-Jew on Pesach(literally that Pesach “passed over” ) may be benefitted from by a Jew after Pesach, chametz that belonged to a Jew on Pesach may not, because the passuk says “ולא יראה לך”- chametz shall not be seen by you, which we have learnt is a source for the twin prohibition of seeing and owning chametz on Pesach (see post on Pesachim 5-7.)
We are immediately struck by the need to explain how the prohibition against seeing and owning chametz on Pesach is connected to the Mishna’s חדוש (novelty) that chametz owned by a Jew on Pesach remains forbidden after Pesach, and two possibilities spring to mind:
- Chazal learnt from the passuk that this biblical prohibition extends beyond Pesach itself.
- Chazal forbade such chametz after pesach on a rabbinical level due to the biblical prohibition of owning it on Pesach itself, as some form of fine.
Besides for the obvious differences in how biblical and rabbinical prohibitions are treated when it comes to doubts and other difficult situations, a few POSSIBLE practical ramifications of the above analysis could be whether chametz that a Jew was unaware was in his possession on Pesach (שוגג) should be subject to the prohibition.
If the biblical prohibition on Chametz in a Jew’s possession on pesach simply extends to after Pesach, it would seem irrelevant whether the Jew intentionally kept the chametz in his possession or did so mistakenly.
However, if it is a rabbinical fine, it is possible, though not by any means certain, that Chazal did not extend the fine for an unintentional transgression, particularly if he performed the search and destroy operation to the best of his ability.
It is also possible though that Chazal wanted a person to be so careful that they extended this fine even to an unintentional lapse, perhaps even if he did בטול and thus never even transgressed the biblical prohibition of owning chametz at all!
In contrast, if it is simple an extension of the biblical prohibition, it does not seem likely that it would apply to someone who performed בטול and thus never transgressed the biblical prohibition at all, but on the other hand, it would probably apply to one who transgressed the prohibition unintentionally.
The Gemara opens its discussion on this Mishna by attempting to identify whose view, amongst 3 Tannaim who debate the subject in a Beraisa, is reflected in this Mishna.
It brings a Beraisa which lists 3 opinions:
- Rabbi Yehuda holds that it is biblically forbidden for Jew to eat or benefit from chametz
- Before Pesach (from midday on Erev Pesach)
- During Pesach and one who does so is subject to כרת.
- That a Jew owned on Pesach, even after Pesach
- Rabbi Shimon holds that there is no biblical prohibition against chametz either on Erev Pesach or after Pesach
- Rabbi Yossi haGalili holds that even on Pesach, the prohibition is limited to eating (and owning) chametz and not to benefitting from it.
The Gemara notes that our Mishna does not appear to reflect the view of any of these 3 authorities because
- Rabbi Yehuda does not appear to differentiate between chametz of a Jew and that of a non-Jew, learning the 3 prohibited periods from the three times the prohibition of chametz is mentioned.
- Rabbi Shimon does not appear to forbid chametz after Pesach at all
- Rabbi Yosi holds that even during Pesach, the prohibition is only to eat chametz and not to benefit from it.
The Gemara brings two approaches two reconciling the Mishna with at least one of these opinions:
- Rav Acha bar Yaakov says that the Mishna does indeed reflect the view of Rabbi Yehuda, but that Rabbi Yehuda compares the prohibition of benefitting from chametz to that of seeing chametz, which we already know does not apply to chametz of a non-Jew. According to this, we would need to say that Rabbi Yehuda holds that there is no biblical prohibition of benefitting or perhaps even eating chametz of non-Jew even during Pesach, which would be an enormous חדוש (see Rashi.)
- Avoiding the need for such a חדוש in the words of Rabbi Yehuda (who initially appeared to be more stringent that his colleagues), Rava says that the Mishna reflects the view of Rabbi Shimon, and that the prohibition of benefitting from chametz owned by a Jew over Pesach, AFTER Pesach, is a rabbinical fine for owning it on Pesach , following the second explanation we suggested earlier of the passuk the Mishna brings- the passuk thus being the reason but not the actual source for the prohibition.
The Gemara proves that Rav Acha bar Yaakov changed his mind and m,m accepted Rava’s explanation.
As such, we now have a סתם משנה supporting Rabbi Shimon who holds that there is no biblical prohibition of chametz before or after Pesach at all and that the prohibition of benefitting from chametz owned on a Jew over Pesach AFTER Pesach is only a rabbinical fine.
It follows, based on an earlier analysis, that in case of a ספק or other situation where rabbinical prohibitions do not apply, we should perhaps be lenient, and that in situations where a person tried his best to get rid of his chametz and unintentionally left some over, there MIGHT be no need for such a fine and the chametz might be permitted.
Yet, the Rambam rules (Chametz uMatza 1/8,9) seemingly like Rabbi Yehuda, that Chametz is biblically forbidden from midday on Erev Pesach and that even if one mistakenly left chametz in his possession, or even if he did so due to matters beyond his control, it is still forbidden after Pesach (Chametz uMatza 1/4 .)
Whereas his former his ruling is subject to debate amongst Rishonim (see for example Raavad there) the consensus of the Rishonim seems to follow his later ruling (see Ramban, Ritva, Rosh, Ran etc) and go even further by forbidden it even if he did בטול but failed to get rid of it.
The basis of these rulings is the subject of much discussion, and we shall return to it in the coming daf, Hashem willing.
Given that the prohibition of chametz on pesach is included in the list of איסורי הנאה (prohibitions that one is not allowed to derive any benefit from,) our perek spends considerable time discussing the scope of such prohibitions.
Whereas when it comes to most forbidden foods, the prohibition is limited to the act of eating and when it comes to shabbos and forbidden relationships, specific actions are forbidden, when it comes to this category of prohibitions, benefit itself is prohibited, and this might apply even to benefits that do not involve a specific action (לאו שאין בו נעשה) such as just smelling the fragrant aroma of incense offered for idolatrous purposes.
The central topic of the end of daf 25 and most of daf 26 is the status of הנאה הבאה לאדם בעל כרחיה, benefit which comes to a person “by force.”
Although the Gemara itself does not initially give an example of this, Rashi cites the case mentioned above of a person who walks past a place where incense is being offered for idolatrous purposes and cannot help smelling the fragrant aroma.
Abaya holds that this is permitted, whereas Rava holds that it is forbidden.
Seeing as we are dealing with benefit which is unavoidable, debating whether it is permitted or forbidden seems rather spurious, and it is thus obvious that the debate does not center around someone already in the situation, but whether one is permitted to willingly enter into a situation where one knows that this will or might happen.
Alternatively, the debate could center upon whether a person is required to immediately move away from such a situation the moment he encounters it, even if it means retracing his steps and taking an alternative or possibly longer route to avoid further benefit, or whether one may carry on and pass the area, seeing as the benefit he gets from the smell is forced upon him.
Either way, the Gemara divides the discussion up into 4 different scenarios, which depend on whether it is אפשר (possible) to avoid the benefit or not, and whether one is מתכוין (intends) to derive benefit or not.
The 4 permutations are as follows:
- When it is both impossible to avoid the prohibition and one has no intention to derive benefit from it (2 factors in one’s favor)
- When it is impossible to avoid the prohibition, but one has intention to derive benefit from it. (1 factor in one’s favor and 1 against)
- When it is possible to avoid the prohibition, but one has no intention to derive benefit from it. (1 factor against and one fact in favor)
- When it is possible to avoid the prohibition and one has intention to benefit from it. (2 factors against)
The Gemara first claims that everyone would be lenient in the first case, and stringent in the second and fourth cases- in other words, if one has intention to benefit, it is forbidden, whether it is possible to avoid the situation or not, and if one has no intention to benefit AND it is impossible to avoid the situation, they both agree that it is permitted.
The debate is solely focussed on the third case, where it is possible to avoid the situation but one does not intend to derive benefit from the prohibition, and centers around the famous view of Rabbi Shimon (see our various posts on this back in Shabbos) who holds that דבר שאין מתכוין מותר (one is permitted to perform a permitted action even if there is a significant concern that it will be accompanied by a secondary forbidden action.)
The classic example of this principle is his permission for a person to drag a bed, chair, or bench along the ground even though he might dig a ditch while doing so, as long as this is not his intention.
However, as we have seen, it is clear from various sources ( see post on Shabbos 133) that this leniency of Rabbi Shimon’s applies not only to the laws of shabbos but to all areas of halacha.
As such, Abaya argues that seeing as the act of walking to wherever one is going is a permitted action, it remains permitted even though one might transgress the prohibition of benefitting from עבודה זרה (idol-worship) along the way.
Rava, on the other hand, claims that the leniency of Rabbi Shimon is limited to cases where it is impossible to achieve one’s goal without taking the risk, for example if the above-mentioned furniture is too large or heavy to lift.
However, if it is possible to avoid the risk, such as in the case of smaller/less heavy furniture which one can lift, one is required to avoid the risk altogether.
It should be noted that this limitation to Rabbi Shimon’s leniency was suggested elsewhere (Shabbos 29b) and rejected, as it will be later in this sugya, but it is of course important to understand this הוה אמינא (initial thought) as well.
The Gemara immediately brings an איכא דאמרי (alternative version) whereby everyone (in this case both Rabbi Shimon and Rabbi Yehuda [who normally forbids דבר שאין מתכוין ] ) agrees that in the first case, where the situation is unavoidable and one has no intention to benefit, it is permitted, and that in the fourth situation where the situation is avoidable and one has intention to benefit, it is forbidden.
The third scenario where it is possible to avoid the situation, but one has no intention to benefit, is the classic dispute between Rabbi Shimon and Rabbi Yehuda.
According to this version, It is the second scenario, where it is impossible to avoid the situation but one DOES intend to benefit once one is in the situation, which is subject to debate between Abaya and Rava.
According to this version, the debate between Abaya and Rava centers not on the view of Rabbi Shimon, for whom intention is the critical factor and for whom it would thus be clearly forbidden (see Rashi) but on the view of Rabbi Yehuda who seems less concerned with intention and more concerned with whether it is possible to avoid the situation or not.
Abaya claims that just like Rabbi Yehuda makes no distinction in a case where it is possible to avoid the situation between a case when one intends to benefit and a case when one does not, forbidding דבר שאין מתכוין regardless, so also in a case where it is impossible to avoid the situation, he does not care whether one intends to derive an otherwise forbidden side benefit from it, or not, and permits it either way. If this is correct, it would follow that once a person is in an unavoidable situation in which he is forced to derive a forbidden benefit, having conscious intent to enjoy the situation might be permitted, something which seems like a tremendous novelty.
Rava, in contrast, counters that Rabbi Yehuda’s lack of concern for whether one has intention for the forbidden action or benefit or not only applies לחומרה (stringently) to forbid an otherwise permitted act if it could involve a forbidden secondary action or benefit.
However, he certainly does not disregard intention in order to be lenient and permit one to have specific intention to perform a forbidden action or derive a forbidden benefit if one is already in a situation where some benefit is “forced on him.” Although one might not be required to leave the situation, one is certainly not permitted to have intention to derive benefit from it.
After bringing various proof texts for the views of Abaya and Rava (with it being important for us to take note of which version of the debate the proofs seem to assume to be correct,) the Gemara brings a Mishna (Kil’ayim 9/5 ) which permits one to “wear” כלאים (forbidden garments which contain a mixture of wool and linen, also known as שעטנז ) in order to display it to would be non-Jewish buyers, so long as one does not intend to derive warmth or protection from it.
This is despite the fact that one could rather display it from behind, as the צנועים (more “modest” or careful people) would do.
This proves without a doubt that the view that permits דבר שאין מתכוין, namely Rabbi Shimon, permits it even when it is possible to avoid the situation and achieve one’s objective without risking the secondary forbidden action, thus disproving the first version of Rava’s opinion.
Although this case and the proof from it requires its own analysis, it follows that we would either rule like Abaya in the first version, despite the rule that we follow Rava in all but 6 disputes against him (Bava Metzia 22b) or more likely, in order to keep with this rule, that we follow the second version of Rava’s opinion.
Either way, as following the second version of Abaya’s view would unnecessarily go against this rule, this seems like an unlikely possibility.
As such, it seems to be the conclusion of the sugya that scenarios 1 and 3 are clearly permitted (at least according to Rabbi Shimon whom later Amoraim have clearly deemed authoritative )- so long as one has no intention to derive forbidden benefit, even if the situation is avoidable, there is no obligation to avoid it.
On the other hand, in cases 2 and 4, where one has intention to derive forbidden benefit, entering the situation is forbidden, irrespective of whether it is avoidable or not.
Now that we have summarized the flow of the sugya, according to Rashi and the consensus of most Rishonim, it is time to focus on some of the difficulties raised by this sugya.
As we have seen, the case of הנאה הבאה לאדם בעל כרחיה (benefit which is forced upon a person) has been divided into 4 scenarios, based on 2 critical factors, namely whether is it possible to avoid the situation and whether one intends to derive the forbidden benefit.
However, the very term בעל כרחיה (by force) seems to exclude a situation where it is possible to avoid the situation, as well as a case where one has intention to derive forbidden benefit.
If one is able to avoid the situation, how can any subsequent benefit be considered “by force?”
Similarly, if when faced with the situation, one consciously has intention to enjoy it, how can that be considered “by force?”
It seems that Rashi and most Rishonim understand that
- when referring to אפשר ( the possibility to avoid the situation,) the Gemara means that it is possible to achieve the intended permitted goal (such as reaching one’s destination) by taking an alternative route
- ii. לא אפשר refers to a situation where it is impossible to achieve one’s otherwise permitted goal without taking the problematic route.
Tosfos and other Rishonim (see for example Ritva in the name of the רא”ה) add that it is also considered לא אפשר (impossible to avoid) if the alternative route or method is longer or requires more effort, time, or money.
“אפשר” , in contrast, is understand to refer to a situation where it is possible to perform one’s intended otherwise permitted task in an equally convenient way that avoids the risk.
Yet even such a case, while forbidden according to the first version of Rava’s view, seems to still be referred to by the Gemara as “by force,” seeing as if he goes on his chosen route, he is forced into encountering the forbidden benefit, an extremely broad definition of “by force” to say the least.
Furthermore, it seems according to Rashi and most other Rishonim (see for example Meiri, though see Ritva for a different view) that קא מכוין refers to one who consciously intends to enjoy the forbidden benefit, and it requires some serious analysis to understand how this could ever be considered “by force.”
One could possibly explain that once a person is forced into a situation where he cannot avoid enjoying a forbidden pleasure, then “giving in” and consciously enjoying it, while probably not permitted, is to a certain extent, still considered to be “forced.”
This could perhaps be compared to a person who is raped but at a certain point, once feeling the pleasure of physical stimulation, gives in and “enjoys it.” (obviously, the plausibility of this depends on the individual and precise circumstances, but such cases certainly seem to exist -a thorough analysis if the sugya in Yevamos 53b of אין אונס לערוה is recommended at this point.)
Whereas the victim might be obligated to try his best to mentally detach himself and avoid deriving pleasure from the physical sensation, it might be harder to condemn him for succumbing and doing so, given that the combination of being forced into the situation and biology make it close to impossible to avoid- even if he is punished for this, as in the case of אונס לערוה (Yevamos 53b,) it might still be called “by force.”- he was simply required to resist the force.
The Ran, however, simply explains that even though one intends to derive benefit, if the benefit is not intended for him (or brought about by him) but comes automatically, it is still called in this context “by force.”
As mentioned above, the Ritva goes to the opposite extreme and says that whenever a person benefits, it is considered intentional, and that לא קא מכוין refers to when the person himself does not (or perhaps believes he will not ) derive pleasure from the forbidden entity, even if many or most people would (why the phrase הנאה is used to describe someone who does not have הנאה requires explanation according to this view.)
These various explanations could have major practical ramifications, but more on that at a later stage hopefully.
פסיק רישיה and הנאה הבאה לאדם בעל כרחיה
One of the issues that bothers the Rishonim is the fact that in our sugya, it seems clear that according to Rabbi Shimon who permits דבר שאין מתכוין, there is no problem walking past a place where there is a pleasant forbidden fragrance.
Likewise, examples are given of sitting in the shade of the Temple’s walls for a derasha and lowering workers into the קדש הקדשים for maintenance even though they will derive forbidden benefit from seeing the inside.
Yet it is made clear in many places that even Rabbi Shimon forbids פסיק רישיה , a situation where the secondary forbidden action (in this case benefit) is inevitable, and it seems pretty much inevitable that a person in these situations will derive some benefit from them.
Whereas the Tosfos choose to assume that all these cases do not involve inevitable benefit (perhaps as different people react differently to certain scents and sights etc) the מהר”ם חאלאוה distinguishes between a forbidden action such as a melacha on shabbos whose completion is not affected by one’s lack of intention, and benefit, which is not considered complete when one lacks intention to benefit.
The latter’s חידוש (novel idea) seems to be that unintended pleasure is not considered complete pleasure at all, and even if such pleasure is inevitable, the stringency of פסיק רישיה does not apply to it, something which of course requires further explanation.
Of course, according to the view of the Ritva in the name of the רא”ה quoted above, the leniency of דבר שאין מתכוין only applies where a person does not derive pleasure from the problematic situation, but if he does derive pleasure, it is considered intentional, and the question does not begin.
הנאה as a stringency
We have seen in our sugya that Rabbi Shimon’s leniency of דבר שאין מתכוין מותר is extended to forbidden benefits occurred during otherwise permitted actions.
However, we have dealt before with another related leniency, namely מתעסק, where one intends to perform a permitted action and lands up doing something that is forbidden (see posts on shabbos 72 and 92 for background.)
Regarding מתעסק, we have seen that when benefit is derived from the unintended forbidden action (such as eating forbidden fats thinking that it is permitted fat or sleeping with a woman who is forbidden to him, thinking she is permitted to him,) one is still liable to bring a korban (sacrifice) for one’s actions.
We see a similar idea regarding נזיקין (damages- B.K. 19b) that although an ox is sometimes exempt from damages it does with its mouth in public property, the owner is liable up to the value of the benefit that it derived from doing so (such as the cost of the food it ate.)
It seems from the above that whenever a person (or his animal) derives pleasure from something, his lack of intent or warning is irrelevant to his liability for any transgression derived thereby.
It seems, at least on the face of it, that there must be a strong distinction between מתעסק and דבר שאין מתכוין when it comes to benefit and that the latter is conceptually so different that הנאה does not affect it at all.
Perhaps this because whereas in מתעסק, the primary action one lands up doing, albeit unintentionally, is forbidden, in the case of דבר שאין מתכוין, the primary action remains permitted and the forbidden action is merely a secondary by-product of that action- secondary benefit that is only a by-product of a permitted action might not be enough to create liability or even to forbid the permitted action in the first place.
OF course, once again, if we were to adopt the approach of the Ritva quoted above, then any benefit is treated as intentional (even though possibly still called “by force”) and there is no need for any such distinction.
Entering situations of sexual temptation for the sake of permitted activities
It follows from the conclusion of our sugya, at least according to most Rishonim, that it is permitted to enter a situation where one might derive forbidden but unintended benefit, if one needs to for some otherwise permitted purpose, even if there is an equally convenient alternative route or way of achieving that objective (אפשר ולא קא מכוין)
Yet we are told (Bava Basra 57b) that a man who intentionally walks past a place where women are washing clothes (and thus not fully covered) where another path exists to where he is going, is called a רשע (wicked person.)- Only if there is no alternative path, may he walk past and turn his eyes away.
It is not immediately clear from that sugya whether the alternative path needs to be as convenient as the problematic one or not, but If intentionally walking past a place where he will derive pleasure from the forbidden fragrance of idolatrous incense is permitted, even if there is an equally convenient alternative route, why should walking past this immodest situation even if an EQUALLY convenient alternative route exists, be not only forbidden but bad enough to be called a רשע ? (see though Rashbam on the sugya, as opposed to Rabbeinu Gershom, regarding what exactly this means.)
Once again, if we accept the Ritva’s explanation above, the question might not even begin.
Although it is indeed possible for a person to know in advance (or at least think) that he does not derive pleasure from incense, the principle of אין אפוטרופוס לעריות might teach us that it is impossible for any man to know or assume in advance that he will not derive pleasure from immodestly dressed women.
Similarly, according to the Tosfos who say that הנאה הבאה לאדם בעל כרחיה is only permitted in cases where דבר שאין מתכוין itself is permitted, namely when the benefit is not inevitable, perhaps the strength of the sexual urge is such that such benefit is inevitable.
However, according to the מהר”ם חאלאוה quoted above, who explains that benefit one is “forced into” is not subject to the stringency of פסיק רישיה, neither of these explanations hold water.
Pinning an explanation on the severe status of forbidden relations in things related to them is also not sufficient, seeing as idolatry and things related to it are treated equally strictly.
Perhaps a combination of the severity of the transgression and likelihood thereof due to its overpowering attraction sets entering a situation of sexual temptation apart and even the מהרם חאלואה would agree that the leniency of הנאה הבאה לאדם בעל כרחיה does not apply to it.