Category Archives: general concepts

Eruvin 87-88 The hanging partition,the Kinneret, and strengthening דרבנן

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One of the fascinating concepts we have seen over the past view daf is the concept of a מחיצה תלויה- a hanging partition.

The generally accepted view is that any partition that  a goat could get through is not considered a partition, and as such, it needs to be at least 10 tefachim high from the ground up.

It could also start a maximum of 3 tefachim above the ground, due to the rule of לבוד.

However, a מחיצה תלויה  (hanging partition) which extends 10 tefachim or more from the roof downwards but does not reach within 3 tefachim of the ground, is invalid.

This is the view of חכמים  regarding a Sukkah, though Rabbi Yosi dissents and allows it (Sukkah 16a)

However, there is an exception to this rule, and that is when it comes to a body of water.

Sometimes, people would build houses on the sea, river, or lake shore, and they would build balconies over the lake or sea , from which they could draw water.

They might also have a water-canal passing through their property.

Of course, this presents a problem on shabbos, seeing as the water body generally has the law of a כרמלית  (open area that does not qualify as a public domain), the balcony is a רשות היחיד (private domain), and transferring from the one to the other is rabbinically prohibited.

In order to circumvent this, a method was used whereby an area in the waterbody underneath the balcony was “partitioned” in order to become part of the same רשות היחיד  as the property.

In the case of an אמת המים (canal), a partition was built over the points where it entered and exited the courtyard.

In the case of the balcony, a mechitza would hang down from the balcony surrounding that area.

Although this would be a מחיצה תלויה , which is normally invalid, the sages were lenient when it came to the need for water supply, and allowed it, in the words of the Gemara:  קל הוא שהקילו חכמים במים.

In the Mishna at the bottom of Eruvin 86b, we discussed the case of a water-cistern that lies between 2 courtyards, where the wall between the courtyards passes over the pit.

Although the wall could perhaps be a מחיצה תלויה , dividing the pit between the two courtyards and allowing each courtyard to draw water from its side, the Mishna requires a special partition to be build in or over the pit. (see Gemara there for different views.)

Rabbi Yehuda, however, allows them to rely on the border-wall itself.

The Gemara assumes that Rabbi Yehuda follows the view of Rabbi Yosi regarding Sukkah, that a מחיצה תלויה  is valid even over dry land.

Although the wall passes over the cistern, which is clearly a body of water, Rashi explains that the leniency of allowing a hanging partition  over a body of water only applies when it is clear that it was built for that purpose, which is clearly not the case with the border-wall.

As such, this is the equivalent of a hanging partition over dry land, which is why the Chachamim do not accept it.

The Gemara counters that the two cases are not comparable:

Rabbi Yehuda is lenient in the case of the pit seeing as the requirement for eruv chatzeiros is only rabbinic, but would never be lenient when it comes to a Sukkah which is a biblical requirement.

Rabbi Yossi, on the other hand was lenient when it came to Sukkah, seeing as eating outside the Sukkah is only a בטול עשה  (going against a positive command), but would never be lenient when it comes to Shabbos transgression  which is a capital offense (at least under certain circumstances.)

Either way, the normative view seems to be that a מחיצה  תלויה  is only allowed over waterbodies.

The Beraisa discusses a case where a water-canal runs between two houses and can be accessed via windows from each house.

It says that if it is less than 3 tefachim wide (or 4 according to Rabban Shimon ben Gamliel,) one may draw water from it.

The Gemara first assumes that this is referring to the width of the canal  and that whereas below this width, it is a מקום פטור  from which water may be transferred directly to the house, above this threshold it is already a כרמלית  from which water may not be transferred.

However, as Rav Dimi had quoted Rabbi Yochanan as saying that a כרמלית  cannot be less than 4 tefachim wide, the Gemara prefers not to make these words subject to a tannaic debate.

It therefore explains that the Beraisa is referring to the width of the banks of the canal between it and the overlooking window of the house.

If the bank is less than 3 tefachim (or 4 according to Rabban Shimon ben Gamliel,) it would be considered a מקום פטור  and even if the canal itself is wide enough to be a כרמלית, it would be permitted to transfer the pitcher to the canal via the banks and back once filled with water via the banks.

This implies that the Beraisa permits transferring an item from two different domains via a מקום פטור.

However, Rav Dimi has also reported Rabbi Yochanan’s view who permits transferring an item from a private domain or a public domain to a מקום פטור  or vice versa, he does not permit using the מקום פטור  as a half-way station for transferring an item from  a private domain to a public one or vice-versa.

The Gemara explains that Rav Dimi’s case involved biblically forbidden transfers, and it is thus rabbinically forbidden even through a מקום פטור.

However, seeing as the canal is only a כרמלית and transferring directly from it to the private domain is only rabbinically forbidden, Rabbi Yochanan would permit doing so through a מקום פטור.

The Gemara then brings a case (that we have seen earlier)  where Rabbi Yochanan permits transferring something from one of the two adjoining courtyards to the top of the wall between, so long as it is less than 4 tefachim wide and thus considered a מקום פטור.

This is contrast to Rav who forbids doing so.

He does not, however, permit using the wall as a means of transferring from the one courtyard to the other, even though transferring from one private domain to another is only rabbinically prohibited (in the absence of an eruv!)

The Gemara concludes that that reflects Zeiri’s view, who forbids doing this even where the direct transfer is only rabbinical.

What is immediately obvious is that when it comes to using a מקום פטור  as a means of transferring from one domain to another, the Gemara is happy to suggest that Rabbi Yochanan is more lenient regarding rabbinical domains than regarding biblical ones.

Yet we have seen earlier )Eruvin 77a)  that not only does Rav not go along with this, but he is even stricter when it comes to rabbinical domains- not only does he not permit using the top of the wall (less than 4 tefachim wide) as a half-way station from one courtyard to the other, he even forbids carrying from one of the courtyards to the top of the wall itself or vice-versa, despite it being a מקום פטור which would be permitted even from a biblical private or public domain!

His reasoning was that precisely because we are dealing with rabbinical domains, we need to be extra stringent so that people do not take them lightly!

We have seen (85b) that Shmuel also followed that approach, and have also seen it in the beginning of the Maseches (see posts on Eruvin 3 and Eruvin 21)

Not withstanding the fact that that approach seems to fly in the face of the normal principle that advocates more leniency is rabbinic matters particularly regarding eruvin, Tosfos points out that Rabbi Yochanan clearly does not accept this approach even in these case, and follows the usual rule of treating rabbinical laws more leniently.

Given Rabbi Yochanan’s seniority in halachik rulings over both Rav and Shmuel, this could have major halachik ramifications wherever the idea of חכמים עשו חזוק לדבריהים  applies, and there is a need to understand the basis of these two different approaches, and whether Rabbi Yochanan’s rejection thereof is limited to this case or is a general objection to the entire concept.

If the debate is purely local, we need to understand why Rabbi Yochanan did not feel the need to “strengthen” this particular rabbinical requirement of forbidden carrying from either domain to a כרמלית   or vice versa.

If on the other hand, this is his global position, we would need to explain why he never feels the need to “strengthen” rabbinical requirements and show that his position is consistent in other places where this principle is used.

Much to think about- hopefully more on this as our journey continues…

The “sea of Teverya” (Kinneret) as well as the inhabitants of Teverya get a special mention on Eruvin 87 as well as Eruvin 88.

We learnt on Eruvin 86-87 that Rabbi Chananya ben Akavya has an extra special leniency when it came to drawing water from a water-body under a balcony.

He held that if the balcony was at least 4 by 4 amos (24 by 24 tefachim,) one could cut a hole of 4 by 4 tefachim in the middle, and the rest of the balcony would be viewed as “bent partitions”  dropping the required 10 tefachim below the balcony on all 4 sides. Then, the rule of גוד אחית מחיצתא  (the partition continues downwards as a hanging partition) kicks in , making the water below the hole a private domain!

At the bottom of Eruvin 87b, the Mishna seems to disagree with this, seeing as it requires proper partitions on or below the balcony, not imaginary bent ones.

The Gemara notes this difficulty and explains (as it has suggested earlier) that this special double leniency of Chananya ben Akavya is limited to the sea of Teverya  (the Kinneret.)

This is because it is surrounded by banks, cities, and קרפפים , making it more similar to a private domain than a כרמלית.

Rashi explains that even though it was not מוקף לדירה (surrounded for the purposes of dwelling in it) and thus still has the law of a כרמלית  , It is still different to most bodies of water and Chananya applied this leniency to make it easier for the people of Teverya.

The Gemara then notes that this was one of 3 leniencies that he made for the people of Teverya.

The other two were as follows:

1.       Normally, when one collects material from outside early in the morning while the due is still on it, the material is considered susceptible to impurity because of the due. However, if one is not happy with it being damp, but only collected it early in order to get to work on time, the material is not susceptible. Chananya took note of the fact that the people of Teverya were hard workers and allowed them to treat the material they collected  as non-susceptible !

2.       He also permitted them to dry themselves with a towel  after washing (on Yom Tov or in cold water on Shabbos- see Rashi) without worrying that they might come to squeeze the towel, apparently as they were known to be careful with such things!

It is truly to live in a time and place where we are so close to so many of the holy places mentioned in the ancient sources and that we are able to enjoy the splendor of the “Sea of Teverya” like our sages did before us!

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 85-86 The tenant and the rich man

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The Mishna on Eruvin 85b tells us that someone who dwells in a store-room that opens to a courtyard needs to participate in the eruv chatzeiros, and if he does not do so, he forbids the courtyard to everyone else.

Rabbi Yehuda, however opines that if the owner of the courtyard has a תפיסת יד (hold) on it , it is not an issue.

Rashi explains that this means that if the owner uses some of the space inside the storeroom to store his own things, it is considered still to be his רשות (domain.)

The Gemara  here seems to understands this to be part of  a general rule that when the owner retains usage of the house, he can also be part of the eruv in place of the tenant.

The Gemara gives the example of a very wealthy man, Bunias, who owned courtyards and allowed others to stay in them on condition that he could keep some of his property in them.

Rashi seems to understand that he used to “lend” the houses to them, whereas the Ritva understands that he sometimes “lent” and sometimes rented them to people.

As a rental ostensibly confers a higher degree of quasi ownership than a loaned house where no money is paid, this could be very significant regarding whether some level of קנין  is required here or whether simply דירה  (long-term dwelling) is sufficient to make the inhabitant the deciding factor regarding eruvin. (See Meiri who relates this to the debate whether עירוב משום דירה או משום קנין  .)

While the possibility that a long-term inhabitant might be considered the quasi owner regarding eruvin even if he does not pay for his stay certainly seems to be assumed by Rashi, short-term guests in hotels or visitors that stay in their own cottages in one’s courtyard could well  have a different law, but see our post on Eruvin 65.

The Beraisa proceeds to tell how when Bunias arrived, Rebbe himself would tell everyone to make space for the man of “100 portions.”

When another wealthy man arrived, however, he told them to make space for the man of “200 portions.”

Rashi explains that Rebbe thought the second person was even wealthier and thus honored him according to his level of wealth!

רבי ישמעאל ברבי יוסי pointed out to Rebbe that Bunias was actually wealthier than the second person, and his father owned 1000 boats at sea and 1000 cities on land!

Rebbe responded that when רבי ישמעאל ברבי יוסי next went to visit Bunias’ father, he should tell him to send his son in fancier clothes next time (so he will know how wealthy he is and honor him accordingly [see Rashi])

The Gemara proceeds to tell us how not only Rebbe, but also Rabbi Akiva were particular about honoring the wealthy.

For those of us who are naturally put off by the idea of the wealthy in a community being giving some of the top honors, and the common practise of auctioning off the best honors to the highest bigger, it might seem difficult to accept how such great Tannaim seemed to go along with this approach?

Surely  a person should be given honors based on merit, rather than on the size of his wallet?

Surely the road to community leadership should not bypass the less fortunate?

We discussed in our post on Daf 49 that although the Torah takes social responsibilities very seriously, enforces charity and tithes, and certainly does not accept a libertarian “laizze faire” approach to economics, it also has total respect for individual property rights and for the right to generate personal wealth.

We also noted that according to one view, the entire institution of allowing one to send a messenger with bread for eruv techumin rather than having to go there oneself was to make it easier for the wealthy, and that the Torah actually treats the wealthy with great respect.

This case serves as a prime example of this  honor shown to wealthy people.

Yet by the end of the sugya, it becomes clear that this honor is not unconditional, and that it is not a contradiction to the merit based approach that the Torah is famous for(for example a learned Mamzer takes priority over an ignorant priest!)

In explaining Rabbi Akiva’s great honor for the wealthy, the Gemara brings a passuk (Tehillim 61/):

“ישב עולם לפני אלהים חסד ואמת מן ינצרהו”- read midrashically as “The world shall endure in front of Elokim,  kindness and truth will guard it”

The Gemara applies this passuk to a wealthy person and says- When will the world sit forever in front of Hashem (endure?)  When kindness and truth guard it (when the wealthy use their money to perform acts of kindness and truth.)

The Torah’s true attitude to wealth is that it was given to the wealthy in order to help the less fortunate, and that when they do this, they are actually sustaining and building the world, something very worthy of honor!

It is thus fitting that someone like Bunias should be used as an example of a wealthy man honored by Rebbe, given that he used to “lend” his properties to people, at least sometimes free of charge, to live in!

Whether a less generous wealthy man loses this right to honor completely, or should still be honored given his potential, or in the hope of encouraging him to fulfill his purpose, is of course subject to discussion, but it seems that Chazal had little tolerance for wealthy misers who refused to give some of their wealth to others, and in this regard  ממשכנין על הצדקה- we take collateral from people in order to force them to give tzedakah, sometimes in very large sums(B.B. 8b)

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 74 The new Rav in town

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One of the biggest causes of tension between a new Rav and his community almost invariably involves differences between his minhagim(customs) and the existing practise of the community.

Even the smallest of minhagim such as whether to say “shir shel yom” before or after the leining on shabbos can become a source of major friction and it takes a very mature Rav and community to learn how to fit in with one another for the sake of the new relationship.

However toxic such arguments can become, they pale in relation to conflicts regarding matters of actual halacha, where the previous Rav permitted something and the new Rav decides to forbid it, or (though less common perhaps) vice versa.

The role of מנהג המקום  (the established custom of the place) is very prevalent in halacha (see Mishna Pesachim 4/1 and the related Gemara for perhaps the most important primary source on the subject,) yet so is the authority of the מרה דאתרה (the Rav of the place), and the requirement to listen to the שופטים אשר יהיו בימים ההם (the judge at the current time [Devarim 19/17  ])

As usual, a comprehensive study of all related primary sources is necessary to reach any conclusions on the subject, something which is beyond both the scope of a daf post and my own personal scope.

However, in keeping with our model of “book-marking” relevant sources as we move through the daf cycle, I believe it is worth noting that there seems to be a very strong ראיה (proof) from the current daf regarding the authority of a new Rabbi, at least when it comes to imposing his stringent views on the community.

At the bottom of Eruvin 74b, the opinion of Rav is noted that in order for a מבוי to be treated with the leniencies of a מבוי (as opposed to a חצר,) there need to be courtyards and houses that open to it, understood to mean at least 2 courtyards with 2 houses each.

If it meets that rule, does not exceed the maximum width of 10 amos allowed for a מבוי, and has a width that is less than its length, the fourth open side along the width may be closed with a pole or beam, as discussed at the beginning of the chapter.

Otherwise, the fourth side needs to more substantially closed, as we have also seen earlier.

This rule of Rav is not universally accepted by any means, and various top Amoraim, including Shmuel and even Rabbi Yochanan, are more lenient.

For our purposes, we shall focus on Shmuel’s view, which holds that even one courtyard and one house is sufficient.

The Gemara relates that רב ברונא  was saying over Shmuel’s lenient view  and Rabbi Elazar of Rav’s school of learning queried whether Shmuel could really have held that way.

When רב ברונא  replied in the affirmative, Rabbi Elazar asked him to show him where Shmuel was staying, so that he could confront him over this.

When he met him, and Shmuel confirmed that he had indeed ruled this way, he asked Shmuel how he could possibly hold this way, seeing as he  had also said that regarding Eruvin, we only follow the principle    that a מבוי לחצרות כחחצר לבתים (An alley is to courtyards what a courtyard is to houses,) in other words, just like a courtyard opens to more than one house, so also מבוי must open to more than one courtyard.

Shmuel was silent at this point, and the story ends.

The Gemara wishes to know whether Shmuel retracted his lenient ruling based on the above argument or not- (silence is sometimes take as admission, but also sometimes taken as simply ignoring the argument due to its lack of weight)

In order to answer this question, the Gemara brings another story:

There was a certain מבוי in which a single person(or family)  איבות בר איהי lived- in other words, aמבוי  which serves just his courtyard.

He marked the open side with one post, as per the laws of a מבוי, and Shmuel consented to what he had done, in keeping with his view that one courtyard is sufficient.

Rav Anan then came and took the pole down, demonstratively forbidding what had been done.

The owner expressed his surprise as to how Rav Anan could simply come and invalidate the מבוי  which he had been relying on all this time with the support of Mar Shmuel himself (note the stress of the title “Mar”- a title denoting seniority.)

The story ends there and although Rav Anan does not seem to have answered the owner, it appears that his pleas were in vain and that Rav Anan’s stringent ruling was now accepted.

Yet the Gemara deduces from this that Shmuel never retracted his leniency and stuck to his leniency till the end.

The later deduction is not accepted for another reason we shall explore later, but we shall focus  first on the story as stated and its relevance to our discussion.

Firstly, let us attempt to clarify the facts.

Whereas we know that Shmuel had given permission to איבות בר איהי to mark his “private” מבוי  and Rav Anan later came and removed it, it is not clear from the Gemara

  1. Whether Shmuel was the Rav of that particular town initially and later replaced by Rav Anan, or simply a visitor whose ruling was accepted due to his great stature and later rejected due to another great visitor’s counter-ruling.
  2. Whether Shmuel had died when Rav Anan gave his new ruling, or whether he had simply left his position in the town or had gone back home.

At least from Rashi, it is evident that Shmuel had died before Rav Anan “overruled” him.

Why Rashi makes this “assumption” does not seem clear from the actual narrative, but could be based on סברא (logic) ,normative halacha, or simple historical fact

Given that Shmuel was the leading Amora of his time, together with Rav, it does not seem likely that Rav Anan would be able to rescind his ruling as long as he was still alive, and he might not even have been halachically permitted to do so.

This would be even less likely if this מבוי was in Shmuel’s territory of נהרדעא, where he was in charge until he died, and even less so given that Rav Anan appears to have been a student of Shmuel (see for example Eruvin 95a where he quotes things that he learnt from him.)

Although we have not eliminated the possibility that Shmuel could have been a “visiting Gadol,” it seems more probably that his view was accepted against Rav’s stringent view primarily because it was on his turf.

If we accept this as a given, then the case is now clearer:

The story took place in Shmuel’s area of authority , he permitted the מבוי, and his ruling was accepted.

After he died, Rav Anan become the new accepted authority there, and ruled stringently like Rav.

Despite the owner’s protests, it seems that Rav Anan’s stringent ruling was now accepted as binding.

If this conclusion is correct, it would follow that a new Rabbi may indeed rule stringently against the previous Rabbi under at least certain circumstances, namely if there is already precedent from an equal or greater authority (such as Rav) for the stringency, and if the previous Rabbi is no longer alive.

In the absence of the above 2 conditions, it would be hard to use this case as any form of precedent.

We should also note that the Gemara continues to refute the proof from this that Shmuel never retracted his lenient view, and answers that it is possible that he had retracted, but permitted the מבוי  for other reasons which no longer applied in Rav Anan’s time, something the owner never understood.

This reasoning was the fact that there was also a shul open to the מבוי  which counted as a second חצר, due to it being used for sleeping quarters for the shul supervisor (I have followed what seems to be the simple flow of the sugya acc Rashi, but see also Tosfos Rid. )

Shmuel simply followed his view that the main factor regarding what defines one’s home in terms of the laws of Eruvin is the place where one sleeps, and not the place where one eats.

The owner did not understand that and held that the place where one eats is what counts.

As a result, he held that Seeing as the caretaker ate somewhere else, the shul was not considered his home as far as the eruv is concerned, and the shul thus did not count as an inhabited courtyard- he thus (incorrectly) assumed that Shmuel’s permission was based on his original leniency permitting one courtyard.

According to this, Rav Anan did not necessarily repeal Shmuel’s permission because he disagreed with him on the halacha- the facts might simply have changed and the shul might no longer have been used for the caretaker’s sleeping quarters, leaving the מבוי  with only one valid courtyard.

For our purposes, seeing that the Gemara accepts this as an alternative view of what happens, there is no longer any definite proof that Rav Anan had repealed Shmuel’s lenient view- Shmuel himself might have retracted it long ago and Rav Anan was, unknown to the owner, simply adapting the same law to the new circumstances!

Despite the above “curve-ball,” the Gemara only brought this alternative in order to show that it is possible the Shmuel retracted- it does not conclude that he did retract and this was the correct version of events, and does not seem bothered at all by the clear implication of the first explanation that Rav Anan did indeed repeal Shmuel’s leniency.

This explanation also seems more likely as if it was simply a question of misunderstanding Shmuel’s reasoning, it stand to reason that some effort would to simply explain to the owner what Shmuel’s real reasoning was  (though it could be that given his entrenched view that the place of eating is “ikar”, the owner would never have accepted that Shmuel possibly held differently.)

As such, this Gemara certainly seems to offer some evidence, if not total proof, that a new Rabbi of a town may repeal leniencies of the previous Rabbi, at least subject to the 2 conditions mentioned above, namely that the previous Rabbi has died and that the stringency already has precedent from an equally rate or authority.

Though the Gra admittedly brings a different source for this, it is interesting that this indeed appears to be  the conclusion of the Rema (C.M 25/2,) though no mention of these two conditions seem to be made there, nor even of the need for him to be the official Rabbi of the city, and many poskim extend this rule to when the new Rabbi is more lenient than the previous one as well- hopefully we shall get a chance to follow up on this when we get to the next relevant sugya.

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 72  The power of permission- כח דהתירא עדיף

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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”

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

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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”

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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 52 and 53  The enlarged techum, nature walks on Shabbos, and Agada

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Queenstown/New-Zealand: techum options?

In loving memory of our dear Rosh-Yeshiva of Yeshiva-college, South Africa, Moreinu haRav Avraham Tanzer of blessed memory, who passed-away peacefully Tuesday night in Johannesburg.

It has been my great privilege to work in the international travel space, with the opportunity to show people so many of the wonders of Hashem’s creation around the world.

One of the highlights of spending a Shabbos in such places is the opportunity to enjoy spectacular shabbos walks amongst gorgeous scenery.

Of course, while going for a pleasurable walk on shabbos is a great way of fulfilling the mitzva of oneg shabbos, and might thus even be considered a mitzva as far as certain laws are considered (making an eruv techumim for example,) one has to be aware of the halachik issues involved, amongst them the prohibition against carrying on shabbos outside a closed area and the prohibition of leaving one’s shabbos domain/techum.

One who camps out in nature is very limited by the later and will usually only be allowed to walk within a 2000 amos range of his tent, even if he is not carrying anything.

In fenced resorts, so long as the entire area is מוקף לדירה  (fenced for the sake of human habitation,) one might be able to measure the techum from the fence of the resort.

Moreover, in resort towns and cities, one might be able to measure the techum from the last house of the city, baring in mind that legal city limits and halachik city limits are not the same thing, and that a gap of more than  140 amos between houses or property walls might be considered a break between two halachically separate cities.

This can mean that in spread-out suburbs or resort towns, one might not even be able to walk from one side of the town to the other, and would be limited to 2000 amos from the building or fenced-in property one is staying in, placing a rather substantial limitation on one’s walking options on Shabbos.

The Mishna at the bottom of Eruvin 52 has some consolation, however, which can be very significant:

Although the space between houses that is permitted for them to be considered part of the same town is rather small, the idea of the עבור העיר – extended halachik limits of the city (as in a שנה מעוברת  [leap or extended year] or אשה מעוברת  [pregnant woman], or according to a different version debated on Eruvin 53, אבר (limb) or extra components of the city) means that substantial amounts of empty space might indeed be included in the halachik city limits.

For example, if a house of the city protrudes on its one side (the north-east corner as per Rashi’s example)  forming an irregular shape, we draw a fictitious protrusion opposite it (on the south-east corner) , and then “square” the city with a perpendicular line from the original protrusion to the fictitious one, including the empty space in-between within the city proper.

We will also  see  (Eruvin 57b) that this also applies to other irregularly shaped towns that do not form a typical square or rectangle style grid, and by using this method, large areas of open natural space can often be included in the limits of the city proper, before we even start measuring the 2000 amos techum around it, which we have already seen is also squared in a way that makes it effectively significantly bigger (Eruvin 49b.)

Chazal determined (Eruvin 57b)  that the techum of shabbos needs to be measured physically with a rope 50 amos long, a point which Rashi uses on our daf (Eruvin 52b at the bottom) to explain the view that there is a 15 amah safety net for someone who mistakenly left the techum, a topic I would love to analyze further in the context of halachik safety-nets in general.

As such,  whether one may rely on satellite images such as those available on google earth to measure this techum, or even on a car’s distance metre, is for a different discussion, one I hope to go into when we get there, Hashem willing.

The process of measuring the techum was taken very seriously in Chazal’s time, and markers were placed on the roads to show where the techum ends, as Rashi on our daf also points out.

Given that sufficiently measuring the techum for a once-off trip might not be feasible, and does not even seem to be common -practise in fixed  Jewish communities, possibly because of the common use of Eruvin, the practical use of these very powerful tools might be limited by pragmatism, but one who knows these laws sufficiently should be able to at least pre-measure the route of any planned  nature-walks as well as map-out the shape and geography of the town before shabbos, in order to ensure than everyone can enjoy these gorgeous walks in a halachically correct manner.

In my first post on this masechta, I recalled how despite my fondness for it, there was some concern raised as to how I would be able to keep up with contemporary relevant posts given its technical nature.

I noted then that besides for the great opportunity to focus on some of the most important rules of Eruvin, Shabbos, and halachik psak in general, there are also plenty other topics in the masechta, and even a fair amount of aggadic material, even if less so than  in the first two masechtos in the shas.

In fact, my affection for Eruvin started during my time as a Rebbe in Yeshiva-College, under the late Rosh-Yeshiva Rabbi Tanzer זצ”ל  and יבל”א  his son Rav Dov Tanzer שליט”א, himself a revered Torah giant of note who mentored me not only in chinuch but in the intricacies of constructing eruvin in the many resorts we used for school Shabbatonim and seminars I ran.

I also pointed out that sometimes Chazal used some of the most technical of discussions to teach us some of the most relevant general principles of halacha and Torah life, and that as we focus on the equally essential minute details of each subject, we need to constantly keep our eyes open for these messages.

Today’s daf is one of those, and while it starts with the extremely technical methods used to calculate the extended borders of a city, it moves onto a wealth of aggadic (non-halachik) material.

There is much discussion from Chazal to the Rishonim and beyond as to the status and role of this kind of aggadic material, which the Rambam teaches us contains the secrets of the Torah (Pirush haMishnayos/intro to חלק), but without detracting chalila from their sanctity and importance, Rashi  (Shabbos 30b ) explains that Agadot are a genre used to draw close the hearts of people and get them interested in the material about to be taught.

Chazal were fully aware that as human beings, we love stories and allegories, and that before, after, and sometimes in the midst of our delving deep into complex halachik intricacies, some of their great non-halachik teachings and traditions should be brought delivered in this format.

Going further, the Amora Rabbah was always particular to start every learning session with a   מילתא דבידוחתא, literally a matter of a joke )Shabbos 30b.)

Given that even the everyday chatter of Torah scholars requires study )A.Z. 19b) , there is little doubt that even these jokes contained wisdom, and are certainly different to the extremely frowned upon ליצנתא  (cynical or mocking humor) which Chazal (Derech Eretz 5/5) warned us against.

Our beloved Rosh-Yeshiva, Rabbi Tanzer of blessed memory, as with everyone in his life and career, followed in Chazal’s path, and always started his words of Torah with a joke or story, which in his wisdom he linked and made relevant to the material he was about to teach.

A master of human-nature almost impossible to find, we can never replace him, but we can certainly do our best to follow in his ways, if only our everyday chatter could come close to the level of his.

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 50 Tannaic versus Amoraic authority and “רב תנא הוא ופליג”

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In the Mishna on 49b, we are told that  a person who is on a journey home on erev Shabbos and realizes that it is starting to get dark and he is still not within 2000 amos of his home or city (but is within 4000 amos) , may designate a place that he knows along the way as his shabbos base, thus allowing himself to walk a further 2000 amos from that designated space and reach his home on Shabbos.

The Mishna stresses though that simply declaring his shabbos base to be under a particular tree does not do the trick- he needs to specify where under the tree, such as at its base, otherwise “he has not done anything.”

Rav and Shmuel dispute what the Mishna means by “has not done anything.”

Rav is of the view that he has disqualified his current position from being his shabbos base by showing that he does not intend it to serve this purpose, but has also not successfully declared a new shabbos base, and he is thus confined to his 4 amos for the duration of shabbos (as explained by Rashi, but see Rambam Eruvin 7/5 who appears to rule like Rav but understand that his current position remains his shabbos base.)

Shmuel, in contrast, holds that so long as the entire area under the tree is within 2000 amos of where he is, he may walk to the area under the tree and 2000 amos from it.  However, seeing as he did not specify which area under the tree is to be his shabbos base, this area has the law of a חמר גמל  (donkey and camel man- see earlier post on Eruvin 35) and he may only walk within 2000 amos of the furthest part of it from where he wishes to go.

Most of our daf is dedicated to discussing this issue, and on 50b, the Gemara brings a Beraisa in support of Shmuel and in refutation of Rav, yet the Gemara answers that bringing a Beraisa against Rav is not sufficient to prove him wrong, seeing as “רב תנא הוא ופליג” -Rav is  a “Tana” and argues (with other Tannaim.)

It is taken as axiomatic throughout the shas that the Tannaim (sages of the Mishnaic period) are more authoritative than the Amoraim (sages of the Talmudic period) and that an Amora may never disagree with a Tana unless he has another Tana to back him up- The main job of the sages of the Gemara is to interpret, reconcile, and adjudicate between the Tannaim but not to disagree with them.

Yet on our daf, in addition to various other places in the shas, we are told that the leading Babylonian Amora of the first generation of Amoraim, Rav, is an exception, and is considered a Tana who may and does argue with Tanaim.

In another place where this exception is made (Kesubos 8,) Rav and Rabbi Yochanan are both quoted separately as stating that a groom can be counted in a minyan but a mourner can not (what precisely this is referring to is discussed there.)

The Gemara brings a Beraisa to refute Rav which says that both grooms and mourners may be included in the minyan but responds that רב תנא הוא ופליג- Rav is a Tana and argues with the Beraisa.

It brings the same Beraisa to refute Rabbi Yochanan and answers that the Beraisa is talking about ברכת המזון  (grace after meals) in which the mourner may be included towards the required 10 for זמון בשם  and Rabbi Yochanan is talking about the שורה  (the line for comforting the mourners) in which the mourners may not be counted.

There appears to be some logic in this distinction, given that the purpose of the minyan for ברכת המזון  is to allow Hashem’s name to be mentioned in the zimun, and a mourner is equally obligated in being part of this than anyone else.  However, the purpose of the minyan for the שורה  is to comfort the mourners, and the mourners are not part of the mitzva of comforting themselves.

Yet despite this seemingly obvious distinction, Tosfos points out that the Gemara saw this as a “forced” distinction and preferred to use Rav’s status as a Tana to answer the difficulty on him.

In contrast, seeing as Rabbi Yochanan does not have the status of a Tana (the Rabbi Yochanan quoted in a Beraisa [Nazir ] is a different person, a Tana by that name, possibly Rabbi Yochanan ben Nuri,) the Gemara had no choice but to resort to this distinction.

Given the apparent superiority of Rav over Rabbi  Yochanan to the point that Rav had the status of a Tana and was thus able to argue with Tanaim, and Rabbi Yochanan did not, it seems rather inconsistent that the rule of thumb throughout the Talmud is that we follow Rabbi Yochanan in cases where he argues with Rav.

To solve this apparent inconsistency, it is necessary to examine various possibilities as to why a Tana is more authoritative than an Amora.

1.       One  possibility is that the Tanaim were closer chronologically to the giving of the Torah, and thus their מסורת  is considered purer and more uncorrupted.

2.       Another option is that the Tanaim were objectively greater in learning than the Amoraim.

3.       A third possibility is that the Amoraim simply had  different roles to that of the Tannaim because  once Rebbe sealed the Mishna, its words become like the authoritative ruling of the great court which could no longer be over-ruled. As such, their only role and sphere of authority was now in interpreting, reconciling, and adjudicating disputes in the Mishna.

Whereas possibilities 1 and 3 above are less likely to allow for individual exceptions, the second reason might leave the door open for an unusually great Amora whose learning was equal or greater to that of some Tannaim  to be able to argue with at least some of them.

According to this reason, it could simply be that Rav’s greatness in learning was such that it was recognized throughout the Talmudic world as being on par with the Tanaim, something that other Amoraim lacked.

However, we would then need to explain why Rabbi Yochanan is considered more authoritative than Rav, despite Rav being on par learning-wise with Tannaim and his apparent failure to be considered as such.

According to the first option, it is certainly possible that the generation that formed the transition between the Tannaim and Amoraim (see Meiri/introduction to Avos who clearly defines this transition, and  includes Rav in this list but not Rabbi Yochanan) were close enough to the מסורות  of the Tannaim  that their מסורות  was sometimes treated as almost or equally as pure.  We would still need to explain why Rabbi Yochanan, though living in the same period, was not included in this transition generation but still was considered more authoritative than Rav when it came to disputes between the two of them.

According to the third reason, it is very possible that when Rebbe and his  court sealed the Mishna as authoritative over all future generations, they excluded certain specific Amoraim who were particularly close to them in terms of the chain of transmission from this limitation, and even conferred them with the type of neo-Tannaic semicha (ordination) needed in order to be exempt from this ruling.

An example of Rebbe’s close relationship and partial ordination of Rav before he went to Bavel can be found in Sanhedrin 5a-5b  where Rabbi Chiya arranged for רשות  (permission to rule) to be given by Rebbe to Rabbah bar bar Chana and to Rav. It is apparent from that sugya that Rav was actually the greater of the two in learning!

It is important to note that this was not actual סמיכה  as in the ordination passed down from Moshe, which might or might not have been held by Rav and/or Rabbi Yochanan, but נטילת רשות להורות  (permission to rule) and to be exempt from liability for errors made- this on its own does not serve as proof of Rav’s exclusion from submission to the Tannaim, but simply as an illustration of his extra closeness to Rebbe.

As Rabbi Yochanan remained in Eretz-Yisroel and might also not have had this same connection to Rebbe, it is possible that he simply never received this special status from Rebbe, and was thus bound by Rebbe’s decree that the words of the Tanaim would be henceforth binding on the Amoraim.

This distinction between Rav and Rabbi Yochanan seems to be mentioned by the Ritva (quoted in Shita Mekubetzes, Kesubos 8a) in order to answer our original question- He explains that we follow Rabbi Yochanan over Rav in a local dispute between the two of them due to Rabbi Yochanan’s greater wisdom but that unlike Rav, Rabbi Yochanan never had the “luck” to be ordained as a Tana in the way that Rav had been.

From the fact that the sugya in Kesubos chose to use Rav’s superior status to refute the proof against him from the beraisa rather than give the answer it gave to uphold Rabbi Yochanan against the same beraisa, it seems that this status is strong enough that it is preferential at least to a “forced” answer, and we indeed see various places in the Rishonim (see Tosfos/Menachos 5a for example)  where they say that instead of giving whatever answer is given to reconcile Rav’s words with a seemingly contradictory beraisa, the Gemara could indeed have chosen to use his superior status as a Tana to answer the question.

Yet in contrast, from the fact that the Gemara regularly poises difficulties on Rav’s statements from various Tannaic sources, it is clear that finding a “non-forced” way of reconciling such difficulties is preferable to resorting to his Tannaic status, which is evidently significantly weaker than that of regular Tannaim.

we see further that some Rishonim in our sugya rule like Shmuel against Rav (see for example Tosfos Eruvin 49b and Piskei Rid Eruvin 50b), even though the halocho almost always follows Rav in a dispute with Shmuel, specifically because the beraisa supports him, implying that this status is not absolute, and that although he may indeed argue with a Tana, other Tannaim are more authoritative than him and the halocho follows them against him, at least when Shmuel rules against him (see though Rif and Rosh who base their ruling like Shmuel on other factors as well.)

It is also clear that his status as a Tana is limited to his ability to argue with Tannaim, but does not limit other Amoraim’s ability to argue with him, or in the case of Rabbi Yochanan in particular, to be considered more authoritative than him when involved in a direct dispute with him.

As such, it seems that the third possibility we raised fits best with Rav’s exceptional status, and that the superiority of Tannaim over Amoraim is not based on either their chronological precedence or their innate superiority in learning, but rather on the authority given by Rebbe’s Beis Din to them over Amoraim, something he likely excluded transition figures such as  Rav from.

While his court excluded Rav from the requirement to submit completely to Tannaim, he did not include him in the list of Tannaim that Amoraim are required to submit.

As a curveball, there is a fourth approach which I would like to entertain.

Perhaps, there was never a specific court ruling or decision that Amoraim may not argue with Tannaim, but it was simply an unwritten agreement that developed amongst the Amoraim of the transition period, for some of the above-suggested or other reasons, which later became established practise.

Amongst the Amoraim of this transition period, some were more accepting of this approach than others, and while Rabbi Yochanan went along with it, Rav did not, as least as far as he himself was concerned.

We can recall that Rav was generally fiercely independent in his approach to halachik decision making and did not accept the many rules of psak that delegated more authority to certain Tannaim over others (see recent  post on Eruvin 47), rules which Rabbi Yochanan did accept and have generally  been accepted to this day.

As usual, there is much more to bring, much more to analyze, and the Rambam’s view on all of this  requires its own unique treatment-hopefully we shall have the opportunity to revisit this again when the topic next occurs.

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 46 and 47 Rules of psak: הלכה כדברי המקיל בערוב, דעת יחיד בשעת הדחק, ספק דאורייתא לחומרא ,ספק דרבנן לקולא

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This daf is heavily concentrated with some of the most important principles of psak halacha that it is even harder than usual to do it justice.

We shall suffice with a brief explanation of some of them and some notes based on an initial analysis of how they are applied on this daf, hoping to build on what we have already done and continue to do based on their application in other sugyas.

The Mishna on Eruvin 45b recorded a dispute between Rabbi Yochanan ben Nuri and the Chachamim whether a person can acquire his shabbos techum during twilight of erev shabbos if he is asleep.

Rabbi Yochanan ben Nuri rules that he can, whereas chachamim hold that seeing as he was not awake at the time, he did not acquire his 2000 amos from the place where he was, and is limited to the 4 amos in which he was.

Rabbi Yehoshua ben Levi is quote by Rav Yaakov bar Idi as ruling in accordance with Rabbi Yochanan ben Nuri’s lenient opinion.

Rabbi Zeira asked Rav Yaakov ben Idi whether he heard this from Rabbi Yehoshua ben Levi as a specific ruling relating to this case, or deduced it based on a general rule of his, which the Gemara identifies as “הלכה כדברי המקיל בערוב” -the law follows the lenient opinion regarding Eruvin.

Rav Yaakov bar Idi replied that he heard it as a specific ruling, and the Gemara explains that this specific ruling was needed in addition to the rule to teach us that this rule applies even when the lenient opinion is a דעת יחיד (single opinion) against the majority opinion, such as in the case of Rabbi Yochanan ben Nuri versus the Chachamim.

It is not clear at this point whether this leniency is meant to apply only to this case, or whether this case now serves as a precedent for all the laws of Eruvin, or perhaps even all rabbinical disputes

If the former is correct, we need to explain why this dispute in different to all other disputes regarding Eruvin. If the middle option is correct, we need to explain why the laws of Eruvin are treated more leniently than other rabbinical laws, where we are only lenient when there are as many lenient views than stringent ones.

If the latter is correct, we need to explain why we are so lenient with all rabbinical disputes to the point of pushing aside the general rule of אחרי רבים להטות – following the majority, and defend this statement against any other statements of Chazal that imply the opposite.

We also need to investigate whether Rabbi Yehoshua’s rule of הלכה כדברי המקיל בערוב is merely an application of the general rule of ספק דרבנן לקולא (as in the third option above), with the assumption that an unresolved dispute has the status of a doubt, and whose lenient applications are thus shared with all unresolved rabbinical disputes, or whether it is an independent rule that has its own unique leniencies not shared with other rabbinical disputes (as in the middle option above.)

We have touched on a similar question in an earlier post (Eruvin 35-36) where we discussed ספק עירוב לקולא – the rule that in matters of doubt regarding the validity of an eruv, we are lenient, and there is appeared that the Gemara understood this as simply an extension of the general rule of ספק דרבנן לקולא.

Assuming that a ספיקא דדינא ( a doubt as to which authority the halacha follows) is an extension of the concept of ספק דרבנן, this would imply that a dispute regarding Eruvin should also simply be an extension of the rule of leniency in the case of a dispute regarding any rabbinical law.

However, from a question asked by Rava on the Gemara’s understanding of Rabbi Yehoshua ben Levi’s statement, it seems that he understands that disputes regarding Eruvin have their own unique leniences.

Rava asks why there was even a הוא אמינא (initial thought) that we would not follow a lenient single opinion against a stringent majority opinion when it comes to Eruvin?!

He points out that this should be obvious, seeing Eruvin is a rabbinical requirement, and in rabbinical disputes, we always follow the lenient opinion, even if it is an individual against the majority!

Various proofs are brought to dispute this assumption of Rava, and this issue is far from resolved at this point, but from his question, it certainly seems that he understood that his colleagues saw Rabbi Yehoshua ben Levi’s lenient view regarding Eruvin to be unique to Eruvin.

Though Rava’s assumption seems to be rejected, the Gemara clearly seems to understand than in another unique area of rabbinical law, namely the laws of mourning, the rule of הלכה כדברי המקיל באבל applies even when the lenient opinion is a single authority versus the majority!

More than that, Tosfos seems to understand that this rule that we follow the lenient opinion in the laws of mourning applies even on the first day of mourning which is דאורייתא (biblical) in nature, suggesting that this might be the case regarding biblical laws of Eruvin too (such as the larger techum of 4 parsah (about 16 km) which some view as deorayso, or when enclosing a real public domain), certainly a huge חדוש (novelty!)

Given that the usually undisputed rule regarding biblical laws is ספק דאורייתא לחומרא – in disputes we follow the stringent opinion, this is nothing short of remarkable, and we cannot escape the need to distinguish between the laws of mourning and possibly also Eruvin, from other rabbinical, and even biblical laws.

There is a fairly well- known dispute amongst the Rishonim regarding the status of the rule of ספק דאורייתא לחומרא .

The Rambam (see Issurei Biah 18/17, for example) opines that this rule is itself only rabbinical in nature, and that on a biblical level, one is not required to be stringent in the case of a doubt- the Torah by default forbids things that we know are forbidden and not things whose forbidden status is subject to doubt.

In contrast, when it comes to the status of rabbinical laws, he is of the view that all rabbinical laws start out with biblical status by default, based on the commandment of לא תסור (do not go against their words…see for example intro to M.T)

Although the various leniencies Chazal applied to their own laws can still be explained based on the fact that the Torah gave them the power to both make and define their own laws, in the case of a doubt, this is not necessary, given that the Rambam considers all doubts to only be subject to rabbinical law, and the Rabbis chose to be stringent with biblical doubts and lenient with their own.

This means that theoretically, in cases of doubt, Chazal have the authority to apply any leniencies they choose, even if the doubt is biblical in nature- they simply chose to be stringent most of the time.

In the case of mourning laws and possibly Eruvin, it is thus quite legal for Chazal to choose to be lenient even in cases of biblical level doubt, and perhaps out of sensitivity to a mourner already in such a sad state, and a person stuck outside his techum on shabbos, they chose to be lenient.

Whether this can be extended to following a single lenient opinion against the majority in a biblical matter is less straight-forward, as it is possible that even the Rambam admits that when there is clear majority on the side of stringency in a biblical dispute, it is a biblical requirement to follow the majority, based on אחרי רבים להטות .

It could be possible, however, that the Rambam holds that אחרי רבים להטות only applies when the dispute has come to the great Sanhedrin, but that a dispute that has not come before the great Sanhedrin had no such law, and remains a bona fide ספק , over which Chazal have total control.

However, some other Rishonim )see for example Rashba, Kiddushin 73a regarding Mamzer) are of the view that the requirement to follow the stringent opinion in case of doubt is a biblical requirement, and according to them, it seems impossible for Chazal to be able to push this rule aside in biblical aspects of Eruvin and the laws of mourning.

The mere fact that Tosfos suggests that the laws follows the lenient opinion even in biblical disputes when it comes to mourning and Eruvin, as well as the proofs he brings for it, seem to offer support for the Rambam’s view!

When it comes to most of the laws of Eruvin and mourning which are clearly rabbinical, Chazal clearly have total authority over their own laws, and if for the reasons suggested above, or other reasons, they chose to treat Eruvin and mourning even more leniently than their other laws and follow even a single lenient opinion against the majority, the were certainly within their mandate.

For further analysis, particularly regarding whether we follow this leniency even against the majority, the Ramban’s long treatment on the daf is essential reading.

We have seen above that although regarding the laws of mourning, and possibly also Eruvin, we may follow a single lenient opinion against a stringent majority, this is not necessarily the case in other rabbinic laws.

Whereas we are usually lenient in cases of doubts and disputes regarding rabbinic laws, where the stringent opinion is the majority, the majority might still prevail.

Yet there is a time where it seems to be permitted to follow a lenient single opinion against a majority stringent opinion, under certain circumstances, and that is the case of שעת הדחק – an emergency.

There is a debate (Niddah 2a) between Rabbi Eliezer and Chachamim regarding whether a woman who has not had a period in 3 months and then has a period may assume that until that moment, she was still pure- this would affect the purity status of whatever she was in contact with before.

According to Rabbi Eliezer, everything she was in contact with until now is treated as pure, whereas the Chachamim rule that anything susceptible to becoming impure from contact with a Niddah that she was in contact with over the 24 hours prior to her period is considered impure.

This is a rabbinical rule due a concern that she was already a niddah earlier, even though on a biblical level, we would be lenient.

Rebbe commented that he once mistakenly thought that the law is like Rabbi Eliezer and declared the items in question to be pure.

When he later discovered that the law was like the Chachamim, he did not rule them to be impure, saying that כדאי הוא רבי אליעזר לסמוך עליו בשעת הדחק – in an emergency, one may rely on Rabbi Eliezer.

The Gemara understands this to mean that unlike Rava’s suggestion, we normally follow the stringent majority against a lenient single opinion even in rabbinical disputes, and only in a שעת הדחק, the minority view may be followed.

It follows from this that even according to Rava’s antagonists, a דעת יחיד may be followed in an urgent situation, at least in a rabbinical matter.

What is not clear yet is the scope of this rule:

  1. Does it apply even to a biblical level dispute? According to Rambam’s above quoted view, it is certainly possible, but according to the stringent views that hold a biblical doubt is subject to biblical level stringency, it seems less likely that שעת הדחק would override that rule.
  2. Does it apply to any dispute, even one already resolved, or only to an unresolved dispute- The Gemara seems to take it for granted that this is limited this to an unresolved dispute (possibly similar to that between Rabbi Yehuda and Chachamim regarding the times for Mincha and Maariv- Brachos,) and that in a dispute that has already been resolved, שעת הדחק would not be a factor. It is still unclear, however, what the Gemara means by a resolved dispute- is this only one that has been resolved by Sanhedrin, do even the Amoraim count, or even post Talmud Geonim and Rishonim?
  3. What is the definition of שעת הדחק as far as this leniency is concerned- Tosfos seems to identify two different levels of שעת הדחק !

The above questions can have immense ramifications in many areas of contemporary halacha, and as we move through the daf cycle, we hope to collect more evidence to help us answer them!

Later on Eruvin 46 and moving onto 47, we move to a different set of rules of psak halacha.

Here we deal with the weight given to various Tannaim against one another when a dispute is given.

Various rules of thumb are given, amongst them:

  1. The halacha follows Rabbi Akiva against a single colleague of his
  2. The halacha follows Rabbi Yossi even against a majority
  3. The halacha follows Rebbe against a single colleague of his

Various other now well-known such rules are also stated, after which רב משרשיה claims that none of these rules actually apply, meaning that each case is in fact to be treated on its own merits- bases this on various ruling of Rav which seem to negate these rules.

After various examples brought to back this claim up, it becomes clear that even those who accept these rules must accept that there are some exceptions. היכא דאיתמר איתמר – in a place where a definitive ruling was made against the general rule, that ruling overrides the general rule. Only in a place where no definitive ruling has been made, do we apply these rules of thumb.

Incredibly, Rav does not except the existence of these rules at all, and even in undecided cases, leaves it up to the individual current authority to rule according to which argument makes most sense to him.

As Rabbi Yochanan does except these rules, the irony is that by the rule of thumb that we follow Rabbi Yochanan against Rav, it should follow that these rules are indeed authoritative, and Rashi on the daf says so explicitly, but what is to force those who choose to follow Rav to accept a ruling based on a rule they do not accept in the first place? Seems Kind of like what came first, the chicken or the egg, but in truth has a lot to do with the power of מעשה בית-דין which still applied to an extent in the time of Rabbi Yochanan!

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.