Category Archives: general concepts

Eruvin 44 and 45 Returning from emergency travel on shabbos

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A very common issue faced by emergency workers is what to do after taking someone to the hospital.

Everyone agrees that whenever there is a chance of danger to life, one may desecrate shabbos in whatever way  necessary to try and save that life.

As such, it is obvious that taking a person whose life might be in danger to the hospital is not only permitted, but obligatory.

On the other hand, once the immediate danger has passed and the person has been taken to hospital, those who took him there could land up being stuck at the hospital for the rest of shabbos, unable to drive home, or even to walk home if the hospital is not within the techum of his house, assuming walking home is even safe.

Those who do this for a living or as a labor of love on a regular basis could thus land up being almost every shabbos in a hospital reception area.

Whereas halacha is halacha, and במקום שיש חלול ה אין חולקין כבוד לרב  (in the place of Chillul Hashem, such as when a Torah prohibition is about to be broken, we do not consider a person’s honor or dignity, no matter how great he is- Brachos  19b  ,) it would obviously be very useful to find a halachik way for him to return home.

There is also the very real concern that if a halachik way to return home is not found, people will be more hesitant in cases of doubt to take people to hospital, itself causing more danger to life.

At the bottom of Eruvin 44a, the Mishna tells that anyone who leaves the techum under permitted circumstances  and while on his journey, is told that he is no longer needed,  is allowed to walk within a 2000 amah radius from where he is at the end of his mission.

This is despite the usual rule that one who has left his techum, even by force, has to stay within his 4 amos.

At the end of the Mishna, we are told that anyone who left in order to “save” may return to his original place- this seems to mean that he may travel home even more than 2000 amos.

In order to reconcile this apparent contradiction, the Gemara on 45a attempts to distinguish between leaving for regular permitted reasons, and “to save,” the later being treated even more leniently.

Though neither the Mishna nor the Gemara has yet defined what either “with permission” or “to save” means, it seems likely that “with permission” means for certain approved mitzvos, whereas “to save” means for purposes of saving lives.

Yet as examples of leaving ברשות  (with permission,) Rashi on the Mishna  lists leaving in order to testify about the new moon, saving from invading troops or from a flooding river, and a midwife coming to assist with a birth.

Whereas the first example is not a matter of life and death, and the second might be referring to saving property which is also not a matter of life and death, the third example certainly seems like it could be .

Rashi on the Gemara, however, while explaining the possible distinction, seems to consider the birth not to be a life and death matter but saving one’s property from invaders to have the potential to become one (or at least a danger of injury) , should he fail to return home and be chased by them.

As such, the permission to return home would not be because he left for permitted purposes or even life and death purposes, but because his current situation is one of life and death.

However we explain the distinction, the Gemara rejects the distinction, seeing as there is an explicit Mishna (Rosh haShana 2/5 )  that includes one who left the techum to save from troops in the list of people who may only travel 2000 amos from the place where their mission ends.

It thus concludes that there is no blanket permission even for one who left “to save” to travel more than 2000 amos to return home, and 2 different opinions are brought as to what exactly the permission is, both based on current danger and not the fact that he left due to danger.

Based on this sugya, it seems that someone who travelled outside the techum on a life-saving mission, would be permitted to walk no more than 2000 amos back..

It seems that this is despite the concern that without permission to return home, people would be reluctant to return.

If even travelling more than 2000 amos, a rabbinical prohibition, was not permitted after such a mission, it seems to go without saying based on this sugya alone, that transgressing a biblical prohibition in order to return home would not be permitted.

It is, of course, still possible, that the phrase להציל in this sugya is referring to saving property, and that one who left in order to save lives might be treated more leniently.

If this was the fact, though, the Gemara’s suggestion that “to save” should be different to other permitted reasons seems to make little sense- after all, why should saving property be more important that testifying about the new moon, something the entire calendar is dependant on, and that even breaking shabbos on a biblical level is sometimes permitted for (see Mishna  Rosh haShana   )

However, this is not the only word on the subject.

There is a debate in the  Mishna (Beitza 11b) between Beis Shamai and Beis Hillel regarding whether it is permitted to open and close  shutters on Yom Tov .  Beis Shamai rule that both are forbidden whereas Beis Hillel rule that both are permitted.

Ullah explains that the Mishna is referring to the shutters of shops(assuming one is selling for yom-tov needs in a permitted way.)

He also understands that this is an example of 3 things that are permitted סופן משום תחילתן (the end because of the beginning.)

He understands  that Beis Hillel permit opening them in order to supply the Yom-Tov pilgrims, which is considered a bona fide Yom-Tov food need, and  close the windows afterwards  because if one is not permitted to close it, he might refrain from opening it.

As such, we view closing it as a permitted need of Yom-Tov too!

The other examples that Ullah brings are:

1.        putting out the skin of a freshly slaughtered animal for people to step on, thus helping to preserve it. Even though this would normally be forbidden on Yom-Tov, if we do not permit it, the owner of the animal might refrain from slaughtering it for Yom-Tov, and thus this is also considered a need of Yom-Tov

2.       A Kohain who has a bandage on his hand  and needs to remove it in order to perform the Avoda (Temple service,) may also put it back, as if we do not permit him to do so, he might refuse to remove it and the Avoda will not be done. This is thus also considered “part” of the Avoda and permitted.

What we seem to learn from these cases is that when an otherwise forbidden action is permitted for a certain essential  purpose, “undoing” that action might also be permitted if failure to permit doing so will result in the essential purpose not being fulfilled- Essentially, the “undoing” action is viewed as a need of that essential purpose as well.

It is not clear from the sugya whether these 3 (and another 2 that some in the sugya add) are meant to be the only such examples, or examples of a general rule- how such lists are generally viewed is beyond the scope of this post.

While based on the way we interpreted our sugya back in Eruvin, it is understandable why returning from a permitted journey outside the techum is not included in this list, given that there seemed to be no such blanket permission to do so, we need to understand why.

Making things more complex, Tosfos on our daf, as well as the Rashba (on the sugya in Beitza) asks why Ullah did not include this in his list, seeing as it seems clear that this is the reason for the Mishna’s leniency here, and answers that it is because in the case of the Eruv, it is so clear from the Mishna that the reason for leniency is סופן  משום תחילתן that there us no need for Ullah to mention it.

How these Rishonim  understands the conclusion of our sugya which seems to have rejected a blanket permission to return home, requires further analysis.

What is clear is that they indeed view the permission in our Mishna to return to one’s place as permission to return home, and even if they would admit that it is limited to 2000 amos, they certainly hold that the reason for the leniency is סופן משום תחילתן . It also seems that they hold that Ullah’s list is not exhaustive and that he only mentions things that we might have thought were not permitted or were permitted for other reasons.

In fact, The Ritva indeed quotes the Ramban who takes issue with this Rashba based on the conclusion of our Gemara!

Once we have established the scope of this principle and whether it applies to one who left the techum or not, we also need to examine each example given and establish whether the principle only applies to rabbinical transgressions or even  to biblical ones.

At that point, we might be closer to being able to work out whether someone who has left his home for a permitted purpose like saving a life on shabbos should be permitted to return home, and whether he may transgress only rabbinical or even biblical transgressions to do so.

As usual, much more to analyze and discuss, but hopefully this is a good start.

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 39 and 40 Rosh haShana Matters, the interconnectivity of Torah and ערוב על תנאי

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We have mentioned many times this year how regular Torah study so often seems incredibly relevant to the events of the day.

This year, around Shavuos on the daf cycle, Maseches Shabbos took a break from the complexities of the laws of shabbos and focused on the giving of the Torah.

Around 9 Av, the daf seemed to take another diversion and focus on the destruction, and true to form, the past two days, it has morphed from discussion of conditional Eruvin and ברירה  to various matters relating to Rosh haShana.

As someone who often tends more towards the Rambam’s natural approach to every-day events (for a different post), it is still impossible not to see the angle of the Ramban who see’s miracles at work in every asset of life.

I have not done a statistical study on how significant this is, or of previous years of the daf cycles, nor do I intend to- I feel that  such things are and are meant to be subtle, and non-scientific- yet at the very least, we can appreciate through them the unimaginable inter-connectivity of everything in the Torah, to the point that there is always something relevant to our situation in whatever we learn, and that very often, it is so striking that one cannot ignore it.

The nature of today is such that an analytical  study of the daf is even more challenging than usual, but let us at least try to mention some of the Rosh haShana related issues here on these daf of Eruvin:

We have already discussed when and how it is possible to make various conditions regarding an Eruv.

One might also be able to set one Eruv for the first day of Yom Tov, and another for the second, according to the view that the two days of Yom-Tov are considered two separate holy entities, and are not dependant on one another.

This generally accepted view is based on the fact that originally, two days of Yom Tov were kept in the diaspora out of doubt as to which day was really Yom-Tov.

This is because the calendar was based on witnesses testifying to the new-moon having been sighted, and once the Beis Din (court) in Yerushalayim had declared which of the two possible days was Rosh Chodesh, messengers had to be sent to the entire Israel and diaspora to inform them.

Even though the chagim were generally late enough in the month for the messengers to reach the inhabitants of Israel (roughly speaking at least), much of the diaspora was too far, and they would often be unaware of which of the two days was really Yom-Tov.

Given that Rosh haShana is at the beginning of the month, it sometimes happened that messengers did  not reach the Beis-Din in Yerushalayim on time to know for sure which of the two days would be Rosh-haShana.  In such a case, they kept the 30’th of Elul as if it is the 1’st of Tishrei.

If the messengers came later after the cut-off point, the first day remained holy, and the next day was also kept as Rosh haShana.

In such a case, not only were 2 days of Rosh haShana thus kept even in Israel, they were treated as if both were definitely Yom-Tov, as “one long day” all of which was holy, and this how the 2 days of Rosh haShana are viewed today.

Though the Mishna on 39a records some dispute about this, the halacha follows this view and we do not  rely on conditional or split Eruvin for Rosh-haShana, or on other leniencies based on  the fact that both days Yom-Tov are treated as a doubt.

There is also a debate regarding whether the davening of Rosh haShana needs to include a special mention of Rosh-Chodesh or not, and according to that view, whether one may make a conditional declaration on each day.

The former issue is discussed in detail on 40a  and as explained by Rashi, depends on whether the reference to זכרון תרועה  (memory of the Shofar) that refers to Rosh haShana also incorporates Rosh Chodesh, which is also referred to as a זכרון (memory.)

The Gemara concludes on 40b that Rosh Chodesh does not get a special mention on Rosh haShana.

Another fascinating discussion on 40b revolves around whether the bracha “Shehecheyanu”, also referred to by Chazal as “זמן”  (time) is to be said on Rosh haShana and Yom Kippur.

On the one hand, it is not one of the three festivals referred to as a רגל, and perhaps does not qualify as enough of a (special) זמן   to warrant the bracha.

On the other hand, it does come מזמן לזמן, on a regular basis, so the phrase לזמן הזה  does apply.

In truth, both of these arguments seem to miss the point- Can one really think that the greatest days of the year, the days of judgement and atonement, are in any way less special, in any way less of a “זמן”  than the other festivals? There is indeed a discussion as to whether there is a mitzva of simcha (rejoicing) on these days, but since when is the bracha Shehecheyanu dependent on rejoicing?

On the other hand, are we to assume that the only reason to say such a bracha on such an incredible day is because it is an annual event? If it only happened once in history, would it not merit such a bracha? Do once off incredible events in one’s life or those of the nation not also merit a bracha that thanks Hashem for bringing us to such a time?

There are obviously certain assumptions that Chazal had about the purpose and scope of this bracha which we have not taken into account in this question, and hopefully, as we encounter more sugyot that discuss it, we shall succeed in identifying and understanding these better.

 כתיבה וחתימה טובה  

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 37 and 38 Yiftach’s daughter and ברירה

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One of the many truly tragic stories in the Tanach is the case (Shoftim 11) of the daughter of the judge, Yiftach.

Yiftach rose from a difficult youth to become the leader of Israel. However, while he seemed to mean well, his lack of Torah scholarship was evident in what must surely go down as the most awful act of his life.

Before his final major military campaign recorded in Sefer Shoftim, the war against Amon, Yiftach promises Hashem that if he helps the campaign succeed, the first thing that exits the doors of his house to meet him on his triumphant return will be for Hashem, and he will offer it up as an עולה (burnt offering.)- וְהָיָה֙ לַֽיקֹוָ֔ק וְהַעֲלִיתִ֖הוּ עוֹלָֽה:

When he returns, his daughter comes out enthusiastically to greet him, and instead of enthusiastically embracing her, he tells her the awful news that his vow applies to her.

Despite her pleas, he is adamant that he is unable to go back on his vow, and after she is given 2 months of freedom in the mountains, we are told that he does what he had vowed to do to her.

There is much discussion amongst Chazal and the Rishonim as whether he actually killed her and offered her as a sacrifice, or whether he made her live a life of isolation and chastity, as well as regarding whether his vow was indeed binding or not.

After all, a vow to commit a transgression is generally invalid, and murder is certainly a transgression. In addition, a human being is not a valid “object” of a burnt offering, or any other sacrifice for that matter.

Furthermore, human sacrifice in general and child sacrifice specifically is condemned by the Torah.

It is also highly unlikely that Yiftach really considered the possibility that his daughter would be the one his vow would apply to (though it does seem strange that he did not do so, given its seemingly high probability), and this could make it an example of a halachically invalid type of commitment known as אסמכתא.

Chazal (Taanis 4) severely criticize Yiftach for not going to Pinchas to have his vow annulled, and Pinchas for not reaching out to him to do so.

Ironically, however, the implication of this is that at least according to this view, the vow was indeed valid.

One possible reason for this “vow” to be invalid might be related to the sugya of ברירה , which dominates our daf, and can also be found in many other places in the Shas.

The Mishna on 36a tells us that a person who is not sure which direction he will need to walk more than 2000 amos in on Shabbos, may place 2 “conditional” eruvin at the end of each side of his shabbos domain and stipulate the conditions under which each one will be valid.

For example, if he suspects that a Torah scholar is coming to visit and he wishes to walk more than 2000 amos to greet him, but is not sure from which direction he will come, he may stipulate that “ if he comes from the east, the eruv in the east will be valid, if he comes from the west, the eruv in the west will be valid, if one comes from each direction, I can choose which way to go, and if one does not come at all, neither eruv is valid and my shabbos zone remains as is.”

Rabbi Yehuda agrees with the above but stipulates that if a Torah scholar comes from both sides and one is his Rabbi, the eruv in the direction from which his Rabbi is coming is valid. If they are both his Rabbis, Rabbi Yehuda agrees that he may choose which one to greet.

The Gemara understands that this is an example of a קנין (transaction) or חלות (status change) that is dependent on a future event, known as ברירה.

Unlike a regular conditional transaction which is dependant on a future event happening or not, this is a transaction where the uncertainty is not based on a future event taking place, but on the object to which this future event takes place.

In our case, the eruv food on which the legal mechanism of Eruv Techumim will fall is not determined at the time of the setting up of the eruv, or even at the time of its activation, during twilight of Erev Shabbos, but later on, retroactively, based on which direction the scholar comes from.

Although Rabbi Yehuda appears to agree with the Tana Kama that such a legal status change is valid, the Gemara notes that in other places, he clearly holds that such a mechanism does not work – a legal status change can not be applied to an item which is undetermined at the time of the status change.

Another example brought in the Gemara , from a Mishna, is the case of someone who buys wine from a כותי , also known as Samaritans.

These were the settlers with whom the Assyrians replaced the exiled 10 tribes of Israel in the Northern kingdom of Israel, who took on belief in Hashem after a plague of lions.

Their status as Jews was debated amongst Chazal, and at the time of this case, or according to the sages quoted here, were considered Jewish.

However, they were apparently not trusted when it came to separating tithes, and one who bought wine from them needed to separate them before drinking the wine.

The quoted Mishna discussed a case where the person wishes to drink the wine, but has not got sufficient vessels into which to pour the various tithes, and suggests a method whereby he may drink the wine already before these tithes are physically separated.

Unlike solid products, where it might be feasible to simply set aside a certain area of the basket full as tithes, liquids are by definition mixed together, and this not possible.

Yet Rabbi Meir expresses the view that one may make a conditional declarations, saying that whatever part of the mixture he will separate for each tithe in the correct amount will be considered retroactively to have been separated from now already.

After this, he may drink the wine, obviously leaving enough for the seperation.

In contrast, Rabbi Yehuda, Rabbi Yossi, and Rabbi forbid this.

The Gemara understands this debate to be about whether there is ברירה or not, in other words whether one may affect a conditional status change on parts of the wine before the specific part of the liquid mixture that this status change is to be applied to has been determined.

In order to reconcile Rabbi Yehuda with his view regarding Eruvin that there is ברירה, Ulah reads the Mishna in a way that Rabbi Yehuda agrees with Rabbi Meir’s permissive opinion!

There is also a suggestion on 37b that we rely on ברירה in rabbinical matters but not in biblical ones.

Coming back to the case of Yiftach, putting aside all the other issues that we raised, this seems at face value to be a typical case of ברירה.

Yiftach essentially effected a status change, from חולין (unsanctified) to הקדש (sanctified) on whichever חפצא (item) would later emerge first from his home to greet him.

This “item” later tragically turned out to be his daughter, but at the time of the vow, was not yet determined.

If this is true, it seems strange that I have struggled to find primary sources that link his conundrum to such a famous dispute.

Perhaps the difference lies in when the actual status change is to be affected.

In typical cases of ברירה , the status change is to be applied retroactively from the time of the condition.

If that was not the case, the eruv would not be valid at the critical time of twilight, and the wine would still be טבל (untithed produce) at the time when he drinks it!

Perhaps the debate around ברירה is limited to whether a status change can fall retroactively at the time the condition is made.

However, in a case where this is not the intention, maybe such a conditional pledge could be valid?

It seems clear from the story that Yiftach never intended for the first “item” to leave his house to be sanctified retroactively, or even to be automatically sanctified from the time of emerging from the house.

Otherwise, he would not have been able to give her 2 months of freedom!

It appears more likely that his was simply a vow that he would later apply a status change to whatever item left his house first.

As such, there is no need to apply ברירה in order to make the status change valid.

He would simply be bound by his initial vow to LATER bring about that status change by declaring that “item” הקדש .

Seeing as the status change itself is not based on anything he said at the time when the item was undetermined, but on his later keeping his vow and sanctifying the item AFTER it had been determined, there is no issue of ברירה at all.

In order to test this theory, a thorough study of all the different sugyas relating to ברירה is necessary, something we will hopefully have a chance to do as we progress through the daf yomi cycle!

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 35 and 36 ספק דרבנן, ספק עירוב, and חזקה

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On these daf, the Gemara deals with some of the most important principles in all of Halacha.

The Mishna on 35a records a dispute between Rabbi Meir and Rabbi Yossi regarding a case where it is uncertain whether the eruv techumin was valid during the critical period of twilight on Erev Shabbos.

Various examples are given:

1.       If the Eruv rolled outside his shabbos domain, and it is not clear if this happened before or after dark.

2.       If the Eruv was covered by landslide or burnt, and it unclear whether this happened before or after dark.

3.       If the Eruv consisted of Teruma, became impure, and it is unclear whether this happened before or after dark.

In such cases, Rabbi Meir and Rabbi Yehuda hold that he is treated like a “חמר גמל” (literally someone who is in charge of both a donkey and camel.)

As Rashi explains, the camel pulls from behind its leader, while the donkey pulls from  in front, making him remain stuck in place!

So also, it is unclear whether the Eruv is valid, allowing him  up to an extra 2000 amos in one direction, while limiting his movement  in the opposite direction, or whether it is invalid, keeping the status quo valid and allowing him 2000 amos in either direction.

As such, he is treated stringently and needs to avoid both areas of doubt, essentially making him “stuck” in the area of certainty between his house and where he placed the Eruv (roughly speaking, though probably really in the area where the two techumim overlap.)

In contrast, Rabbi Yossi and Rabbi Shimon rule that in case of doubt as to the validity of an eruv techumim, we are lenient and the eruv is kosher, allowing him to travel in a radius of 2000 amos from where he placed it.

It is unclear from their wording whether they mean that we treat the eruv as kosher out of doubt, thus also allowing him to walk anywhere within a 2000 amos radius of his house, or whether such an eruv is treated as if it is definitely kosher, thus preventing him from the later.

It is also unclear whether this debate is unique to a doubt regarding an eruv techumim, or applies to any case of doubt regarding a rabbinical law, as per the famous rule of ספק דרבנן לקולא (in case of doubt in a rabbinical matter, one may be lenient.)

The Gemara on 35b seems to take it for granted that this ruling is not unique to Eruvin, but applies to other areas of rabbinic law also, and questions Rabbi Meir’s ruling based on his lenient ruling in another case.

The case referred to is one where a person is impure  and goes down  to the mikva to immerse. himself.

Like in our case, there is some doubt as to whether his action was effective, for one of the following reasons:

1.       He is not sure if he actually immersed himself

2.       He is not sure if he immersed in a sufficient amount of water

3.       There were two mikvaos, one containing enough water and one which does not, and he is unsure which one he immersed in.

Rabbi Meir rules that if the person was impure on a biblical level, he is treated as impure, but if he was only impure on a rabbinical level, he is treated as if he is pure.

This seems to fit perfectly with the general halachik principle of ספק דאורייתא לחומרא  (in case of doubt in a biblical matter, we are stringent) and ספק דרבנן לקולא .

Rabbi Yossi, in contrast, holds that even if he was only rabbinically impure, he is still treated as impure out of doubt.

Here, it is Rabbi Meir who is lenient in the case of doubt, and Rabbi Yossi who is stringent.

Putting the issue of Rabbi Yossi’s apparent self-contradiction aside for a little, the Gemara focused first on Rabbi Meir, and answers that Rabbi Meir is of the view that the law forbidding one to leave one’s shabbos domain is actually biblical in nature.

As such, there is no inconsistency, and Rabbi Meir goes along with the general rule that ספק דרבנן לקולא.

On 36a, the Gemara turns to Rabbi Yosi and tries to explain the discrepancy in his ruling.

After various suggestions are given, the explanation of Rava is given.

Rava explains that although Rabbi Yossi indeed usually agrees that ספק דרבנן לקולא, in the case of the impure person, it is different because he started out with a חזקת אסור  (a forbidden status quo.)

The famous rule of following a person’s original status quo when there is doubt about his status (see Chullin 10a)  apparently overrides the rule of ספק דרבנן לקולא, or alternatively, redefines it as no longer subject to doubt, but as definitely impure.

There is tons more to discuss about the scope of these basic principles and how they relate to Eruvin and other situations- I wish to add that the continuation of the sugya seems to imply that Rabbi Yossi does not only limit the rule of ספק דרבנן לקולא to a case where there is no חזקת אסור working against it, but might even require a חזקת היתר  together with the doubt in order to be lenient.

This would be a huge novelty, with major ramifications, and would contradict much of what we know or assume about this rule- It would then come out that Rabbi Yossi is actually much stricter than Rabbi Meir (and perhaps the other opinions) regarding the scope of this leniency, contrary to what it seemed when we first learnt our Mishna!

Such is the beauty and complexity  of Gemara!

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 32 Halachic compromises for the greater good

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Eruvin 32 Halachic compromises for the greater good

One of the greatest challenges facing Rabbis, educators, and religious outreach groups in our times is treading the line between the tolerant and open approach needed to bring and keep people close to Torah, and avoiding or limiting halachik compromises at the same time.

For example, many traditional shuls are based on the idea that the service inside is run on Orthodox lines but many people drive to shul on shabbos- Is a Rabbi permitted or supposed to encourage people to come to shul knowing full well that they will drive?

One of the greatest tools in the “kiruv” toolkit is sharing the incredible shabbos meal experience with those less observant, hereby drawing them closer themselves (in addition to the mitzva of הכנסת אורחים  [hospitality] , אהבת שלום בין אדם לחבירו , and so much more.)

Is it right to invite non-observant guests for shabbos meals for the above reasons, even if one knows that they will drive?

Sometimes, the Rabbi, educator, or kiruv worker is faced himself with the “need” to make halachik compromises of his own for the greater spiritual good of others- this is very common when it comes to being present in places where the standards of modesty are not in keeping with those of a place where he is normally permitted or encouraged to be present, or in interfaith or multi-denominational environments.

In come congregations, compromises might need to be made regarding the height or even presence of a partition between men and women, in order to encourage people to come.

Often, spiritual duties might require one to move one’s family to a small community with limited religious infrastructure, in order to bring spiritual life to that community.

There are many who take the approach that one’s own spirituality and halachik obligations always come first, and that compromising on those for the sake of someone else’s spirituality is not acceptable.

They might also take a stringent approach regarding encouraging others to do something in the long-term interests of their spiritual development, if it involves their desecrating shabbos or other commandments in order to do so, even if they are not shabbos observant in any case.

Others take a more “long-term” approach, stretching or even violating certain laws for the greater good of their own or other’s long-term spiritual survival, or to prevent them or others from an even worse prohibition.

Neither approach is straight-forward, and the correct Torah approach to this can probably be found in a spectrum between these two extremes, depending very much on the circumstances, and of course, how certain primary sources are to be interpreted- A great understanding of the relevant sources, and a lot of יראת שמים  (fear of heaven) are required to be able to make such decisions.

A discussion on our daf forms one of the most important Talmudic sources on the subject.

The case discussed is where a חבר (learned person) tells an עם הארץ   (ignorant person ) to fill up a basket of produce for himself from his farm.

The question is whether it may be assumed that the person first separated the required tithes, thus making it unnecessary to separate them before eating, or not.

Rebbe and his father, Rabban Shimon ben Gamliel, disagree on this.

Rabbi Shimon ben Gamliel is of the view that we should not assume that tithes have been separated.

That is because there is a rabbinical decree against separating tithes in one place for produce in another, and we should thus not suspect the חבר  of having done so.

Rebbe counters that seeing as the עם הארץ  eating untithed produce is a far more stringent, biblical prohibition, we should assume that the חבר  compromised on the rabbinical requirement and separated tithes from a  distance after he gave permission to the עם הארץ  to collect the produce.

The Gemara seems to understand that according to Rabban Shimon ben Gamliel, it is forbidden to transgress a less severe prohibition in order to prevent someone else from transgressing a more serious prohibition.

In contrast, Rebbe seems to hold that it is permitted to transgress a less severe prohibition in order to prevent someone else from transgressing a more serious one.

Rebbe was so confident in his ruling, that he said that his view seemed more logical than his father’s. Although it seems obvious that he felt that way (otherwise he would not have disagreed with him,) it is possible that Rebbe was making this statement using his authority as sealer of the Mishna, indicating that his approach is the final word.

To what extent this is a general rule, as opposed to a more limited concession, requires serious analysis.

As Tosfos points out, it is clear that this cannot be the case under all circumstances.

We know this from a famous case (Shabbos 4a) where the Gemara discussed someone who unknowingly placed unbaked bread in the oven on shabbos.

One suggestion briefly entertained there was that someone else could be permitted to remove it before it becomes baked to the point that the first person will have desecrated shabbos.

It seems  that we were not dealing with loaves of bread baked in baking pans, but a pita-style bread that was placed directly on the oven floor or rack.

As a result, removing the bread from the oven (רדית הפת) was considered a skilled activity rabbinically forbidden on shabbos.

The Gemara unequivocally rejected that suggestion, taking for granted that אין אומרים לאדם חטא כדי שיזכה חברו – we do not tell someone to sin in order that his friend should get merit.

In both cases, we are discussing transgressing a rabbinical prohibition in order to save someone else from transgressing a biblical one, yet in our case, Rebbe disagrees with his father and permits it, while in the case in Shabbos, there is no dissent and it is clearly forbidden.

In truth, there are many other places where halachik compromises seem to be permitted for greater objectives,  among them:

1.       Even though freeing a Canaanite slave was forbidden, it was permitted  (or more narrowly interpreted) under certain circumstances to allow him to fulfill the great mitzva of פרו ורבו (Gittin 41b)  or to allow him to make a minyan (Brachos 47b.)

2.       Greeting one’s neighbor with Hashem’s name was permitted (Brachos 54a) based on the verse עת לעשות לה’ הפרו תורותיך   (it is a time to act for Hashem, go against his Torah (Tehillim 119/126).)  The value of making Hashem’s name a vessel of peace seems to have overridden the concern of saying his name in vain or alternatively, redefined it as not being in vain.

3.       The sons of Shaul was put to death for their role in the starvation of the Givonim, in order to avoid a Chillul Hashem( Yevamos 79a- (“מוטב שיעקר אות אחת מן התורה ואל יתחלל שם שמים בפרהסיא”

4.       One of the sources (albeit rejected as the primary source) for permitting the desecration of Shabbos to save a life  (Yoma 85b)  is in order to allow him to keep many more shabbosim in the future (חלל עליו שבת אחת כדי שישמור שבתות הרבה ) – it is possible that this applies not only to preventing physical danger to life, but also preventing  a life-time of non-observance of shabbos, a discussion that comes up in various halachik discussions on the subject.

In our two cases, the Baalei Tosfos offer two ways of reconciliation:

1.       The fundamental difference between the two cases is that in our case, the חבר  is the one who initially put the other person in danger of sinning- as such, he is permitted to transgress a lesser prohibition in order to fix up what he did.  According to this approach, there is no general permission to transgress a lighter prohibition to save someone else from a more serious one, except in a case where one is guilty of causing him to perform that more severe prohibition.

2.       Based on various other sugyas, Tosfos takes issue with the former explanation, and takes a different approach. Here, the general rule is that one is permitted to transgress a lighter prohibition to prevent someone else transgressing a more serious one, except in a case where that person was negligent in the first place, like in the case where he put something into the oven at a time that even he knew was very close to shabbos.

These two approaches obviously have huge ramifications for our discussion in general, and whichever approach is accepted, it will be important to define clear criteria for what is considered a light or severe transgression. This could be based on various factors, among them

1.       Whether it is biblical or rabbinical

2.       The severity of the punishment

3.       Whether it harms someone else or not

4.       How many people are affected

5.       Whether each prohibition is relatively short- term or long-term

6.       How many prohibitions are entailed

There is so much more to discuss, but hopefully this serves a reasonable introduction to what is a very complex and important issue.

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 26-27    Talmudic logic, rules, and אין לומדין מן הכללות

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One of the axioms drilled into every Ben-Torah from a young age is that every word in the Torah is precise- nothing is superfluous.

This same principle is applied to the words of Chazal, particularly to the words of the Mishna, which forms the basis of the תורה שבעל פה.

One of the main functions of the Gemara is to highlight the precision of the Mishnayos and make sure that apparent contradictions between mishnayos are either resolved. or attributed to different Tannaim (see for example Rashi/Bava Metzia 33a), but simply saying that the Mishna was not accurate is not usually an option.

Logical thought and deduction are one of the main methods used to interpret both the written and oral Torah, to the point that Talmud study is often thought to be one of the greatest examples of the study and application of logic.

Yet on our daf, we have a principle which seems to drive a wedge into all of this!

The opening Mishna of the new perek introduces us to the laws of עירוב חצירות , the second essential stage of making an Eruv, once valid partitions are in place.

Even though the partitions have allowed the houses and shared courtyard (or the courtyards and shared alley in the case of שתופי מבואות ) to be considered a רשות היחיד  on a Torah level, Chazal forbade transferring things from one person’s house to another’s, or to the shared courtyard or vice versa, without a symbolic action that shows that they all consider the entire area to be “like” one domain shared by everyone.

The symbolic action required is that the members of each house make available some  food which is placed in one of the houses, hence defining the entire area as “shared” in a certain way.

People attribute great importance to the place where their food is, and putting shared food in one of the houses thus has the effect of making this “shared area” into a shared place of dwelling, symbolic of the entire courtyard’s  quasi-shared nature.

Our Mishna tells us that anything can be used for this Eruv, except for water and salt.

Rashi explains that this is  because water and salt are not foods that contain sustenance (nourishment) and  thus do not contribute the required significance to the shared place.

Our natural thought would be that as usual, the Mishna’s words are very precise, and if the Mishna says that one can using anything for an Eruv other than water or salt, this must indeed be the case, and all foodstuffs other than water and salt are acceptable (The fact that ערוב חצירות  has its own rules and might require bread specifically leads many Rishonim to question Rashi’s view that the Mishna is talking about this kind of Eruv, but this is a different discussion.)

What, however, would be the case with other foodstuffs that seem to share the same limitations of water and salt?

Do we say that the Mishna’s list of exceptions is exhaustive, and that anything else is permitted, despite their apparent conceptual similarity, or do we say that the Mishna is simply giving us examples of what is to be excluded from the rule, but that other things to which the same logical arguments seems to apply might also be included?

What, for example, would be the case with certain other flavorings that have no nutritional value but are also used to enhance the flavor of other food?

Our Gemara opens with a bombshell dropped by Rabbi Yochanan: אין לומדין מן הכללות ואפילו במקום שנאמר בהם חוץ- We do not learn from “rules” even where a list of exceptions is given.

Rabbi Yochanan seems to be making the incredible claim that when Chazal state a rule without mentioning any exceptions, there could still be exceptions to that rule.

Not only that, even when Chazal list some exceptions, that list is still not necessarily exhaustive!

As such, it is possible that there are other things that may not used for an Eruv, and that water and salt were just examples.

The Rambam (Pirush haMishnayos on our mishna) states explicitly that the word “בכל”  is to be viewed as a גוזמא  (exaggeration!)  [even if it was interpreted more literally, it could clearly not mean absolutely everything, but only everything that in some way has the properties of food- a cellphone would not do the trick!]

Besides for seeming to fly in the face of our childhood education regarding the precision of every word in the Torah and Chazal, this bizarre sounding statement casts questions on the very need for such rules- after all, if rules are meant to be broken, what is the point of having them?

Our Gemara points out that this statement of Rabbi Yochanan was not made initially in reference to our Mishna, but was first said  (Kiddushin 34b) in relation to another Mishna (Kiddushin 29a), which states inter alia  that woman are exempt from all positive commandments caused by time, and obligated in all positive commandments not caused by time.

The Gemara there questions this rule, based on the fact that we know of various time-caused mitzvos, such as matza, and הקהל (the gathering at the end of the shemita year,) that woman are obligated to keep, and various mitzvos not caused by time, such as learning Torah and having children, which are not obligatory for them.

In that context, Rabbi Yochanan states his principle that one does not rely entirely on rules, and that there could be exceptions not mentioned by the Mishna.

He then uses our Mishna as a proof for the second part of his statement, that this applies even where Chazal have listed specific exceptions, which could make us think that their list of exceptions is exhaustive.

Having seen examples of this principle’s application both where no exceptions were listed by Chazal and where some exceptions are listed, let us now try and examine whether  this principle does indeed contradict those basic axioms of every word in the Torah and Chazal being measured, as well as what the role of these kind of rules are, if they cannot be relied on and we still need to consider that there might be other exceptions.

Perhaps we can answer this question buy reconsidering what the role of the rules and exceptions that Chazal choose to reveal to us indeed is.

Should their role be to spoon-feed us with precise rules and lists that are to be blindly followed without examining possibly contradictory texts or logical principles, then indeed, it is hard to explain what purpose remains once Rabbi Yochanan’s principle has effectively rendered this role null and void.

However, if the purpose of Chazal’s categorizations is to create logical groupings which we are then expected to apply to other conceptually similar cases, and also test against other authoritative texts and traditions, then the lists of exceptions has indeed performed its task well- Chazal were indeed precise with their words, the precision just does not lie in the exhaustive nature of their lists but rather in the message they are giving us from their precise choose of rules and exceptions.

The scope of Rabbi Yochanan’s principle can and must be researched further, and various Rishonim do indeed place certain limitations on it.

 It does seem to make clear that one of the major methodologies required for the study of תורה שבעל פה at least, is applying one’s own intellect and Torah database to examining the scope of all or many of the principles that Chazal teach us, and not just applying them robotically- Torah logic has its own G-d given system, based on  intelligent application by Torah scholars (and only Torah scholars) and not just the kind of Boolean logic used to program computers!

Much more to discuss on this, and other examples to bring and analyze, but that is it for today.

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 20-21    The פסי ביראות  , public domain, and more on rabbinical laws

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One of the main themes of this chapter is the special dispensation that Chazal gave to allow travelers to Yerushalayim for the chagim to draw water from wells for their animals.

The sides of these water-pits or wells were usually too steep for livestock to walk down to and drink, in contrast to people who were nimble enough to do so.

Seeing as the pit or well was surrounded by walls and more than 10 אמות  wide, it was defined as a private domain, and carrying the water from it to the public domain outside was thus forbidden.

To include an area around the well large enough for the animal to stand inside and drink in this private domain, Chazal made do with 4 double posts on each corner.

Each post was 6 handbreadths wide in each of its 2 perpendicular directions, forming a half square or widened L shape.

Although usually a private domain needs to be enclosed by proper partitions, with more closed space than open space, or at least a צורת הפתח, in the case of the special public mitzva of aliya laregel (going up to Yerushalayim for the festivals,) Chazal were lenient.

It seems clear from Daf 20a that this leniency is based on the fact that this method is already an acceptable form of enclosure  on a biblical level, otherwise Chazal would not be able to create such a method on their own to change the status of a רשות הרבים דאורייתא. This goes so far as to make someone who throws someone from a רשות הרבים into this enclosure liable to the biblical penalties prescribed for desecrating the Shabbos.

The implication of this is that the area around the wells is considered a fully-fledged public domain.

We have mentioned a few times already the view of Rashi (Eruvin 6a) that to be considered a public domain, a city needs to have at least 600000 people in it.

It is hard to imagine that the rural villages or city-outskirts where these wells were situated met this definition, which raises considerable difficulty with Rashi’s view.

It is possible that we are referring to the wells outside large population centers which were extremely crowded and busy, but even then, it seems a little far-fetched to imagine 600000 people frequenting them- Even during the busy period of aliya laregel, the population was unlikely to be concentrated in one such location at any time- further analysis is thus needed.

In the earlier dapim of the Masechta, we spent time  examining  the differences between biblical and rabbinical laws, and where they are found in the hierarchy.

We saw that on the one hand, we are usually stricter with biblical mitzvos, something we see all over through various halachik principles, but on the other hand, sometimes Chazal were more stringent with rabbinical laws in order to strengthen their authority.

On daf 21b, we see the incredible drasha of Rava, based on Koheles, that one should be even more careful with דברי סופרים  ( “the words of the scribes”- a term usually used for laws made after the time of Moshe, but itself requiring its own discussion) than with the words of the Torah.

This is because there is a range of positive and negative commandments in Torah, with a range of punishments, but when it comes to דברי סופרים , they are all treated equally severely to the point that העובר על דברי סופרים חייב מיתה  – one who goes against the words of the sofrim is liable to death.

Given that the maximum punishment carried out in court for one who transgresses rabbinical laws was generally מכת מרדות  (lashes for rebellion,) lower on the hierarchy of punishments than the 39 lashes given for biblical prohibitions under the correct strict conditions, this statement seems rather exaggerated, to put it mildly.

We see a similar phrase elsewhere, regarding  one who intentionally puts off saying the evening shema till after midnight, and the attack on Rabbi Tarfon by robbers while sitting to say shema was attributed to his failure to follow the authoritative ruling of Beis Hillel who hold that this is not necessary. )See also the Mishna  Sanhedrin 88b regarding Zakein Mamrei, and the Mishna in A.Z. 29b)

Furthermore, on our daf, we are told the incredible story of Rabbi Akiva who used this principle to justify his risking dehydration in captivity to use the little water he had for the rabbinical mitzva of נטילת ידים!

This extreme example might be the key to how to understand this entire concept- after all, we all know that one is only liable to given up one’s life for 3 of the worst biblical transgressions. We also know that one is often permitted to transgress rabbinical prohibitions even for curative purposes where danger to life is not involved.

This makes it virtually undisputable that this is not a normative halachik concept, but rather an idea, which might occasionally be applied halachically, but whose main purpose is to teach us the pivotal role of rabbinic law in Torah life. Specifically because of the many leniencies Chazal themselves applied to their decrees, it is necessary for them to remind us both in general and in certain specific cases how rabbinical law, routed in Torah law as it is (we will hopefully have future opportunity to discuss in what way this is the case ,) essentially stems  from the same divine authority.

Why Chazal choose to highlight this in certain cases specifically requires careful study, but we will leave that for another time.

Coming back to the issue we raised with Rashi’s view that a true public domain on a biblical level must have 600,000 people at a minimum, perhaps we can relook at the פסי ביראות  and why they need to be already validated as a partition on a biblical level.

Our assumption was that this must be because otherwise, chazal would not have the ability to treat them leniently in the case of the wells.

Perhaps, however, this assumption is not fully necessary?

There are times when Chazal do treat rabbinical laws as strictly or even more strictly than biblical ones. As we have seen above, and even times when the usual rule of אין גוזרין גזירה לגזירה   does not apply ( see גזירה שמט יעלה הים שירטון  as a possible example as well as recently on daf 20a “גזירה שמא יאמרו עירוב מועיל לבין הפסין” )

Perhaps, when it comes to something as novel as creating a new type of partition, Chazal were unwilling to do this even in an area which is only rabbinically treated like a public domain, out of concern that this would become a generally accepted type of partition even in cases they did not intend it to be relied on, maybe even in a real public domain?

This opens the possibility that the typical area around a well might indeed not be a true רשות הרבים  according to Rashi!

The problem is that Rashi himself seems to say explicitly that we are dealing with a true רשות הרבים  and true רשות היחיד-there are also numerous sugyos that imply that we are dealing with a true רשות הרבים  , including on our daf itself- I think that we might be able to work It out, but that’s is for today!

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 15-16 More on Eruv principles, dispute, and הלכה למשה מסיני

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Our two daf contain pivotal sugyos regarding the laws of partitions and Eruvin.

One of them is a famous dispute between Abaya and Rava regarding a לחי העומד מאליו (a post that was already there prior to it being designated for use in closing off a מבוי.

The classic example is if a part of the one wall sticks out at a 90-degree angle to the wall, forming an effective post.

So long as he had in mind the day before that it should be used as a post for the Eruv, Abaya is of the view that it is acceptable.

On the other hand, Rava is of the view that seeing as it was not placed there specifically to serve as an Eruv pole, it is invalid.

After much back and forth, the Gemara brings a proof that Rav held like the lenient opinion of Abaya, which seems to be conclusive in allowing us to rule in his favor.

It is interesting that although we have a general rule that whenever Abaya and Rava disagree, we follow the ruling of Rava, the Gemara (Bava Metzia 22b ) gives an acronym יעל קגם for 6 cases where we follow Abaya, and Rashi identifies our case, לחי העומד מאליו as one of them.

We should note that at least in the case of our sugya, as well as the sugya quoted above, this is because the Gemara was able to find strong evidence in his favor.

We mentioned in our previous post that the Rambam (Mamrim 1/3) is of the view that things mentioned explicitly in the Torah or passed on orally to Moshe at Sinai are not subject to מחלוקת (debate,) and debates are only find regarding laws based on Chazal’s interpretations of the former through the rules of interpretation or rabbinical decrees and the like.

He also said (ibid 1/4) that even such debates were always settled eventually by the בית דין הגדול (great court or “Sanhedrin” of 71 ordained judges,) and once they were settled, there was no room for halachik debate.

In contrast, once the great court ceased to function, new debates remained essentially unsettled and each sage was free to follow and teach his own view to his students, who would typically follow their Rabbi- the default rule for undecided debates was to be stringent in biblical matters and lenient in rabbinical ones. (Mamrim 1/5)

In reality, this has not been the case, and in Amoraic Bavel where the much-weakened Sanhedrin back in Tiberius had little power, as well as after it ceased to function altogether, later Amoraim have come to conclusions regarding disputes which have thereafter also been regarded as binding.

There have even been rules of thumb formulated, such as following Rav over Shmuel, Rabbi Yochanan over Rav or Shmuel, and Rava over Abaya etc.

The Rambam himself (introduction to M.T.) explains the dictum of רבינא ורב אשי סוף הוראה (Bava Metzia 86a) as meaning that the later Amoraim, Ravina and Rav Ashi, who sealed the Talmud Bavli, essentially had the authority of בית דין הגדול for the last time in history, given that their rulings spread and were accepted by the Jewish people as a whole and all or most of its sages.

Although there is much to discuss and analyse here, it seems clear that a simple understanding of the earlier-quoted Rambam that makes authoritative dispute resolution entirely dependant on בית דין הגדול itself is not sufficient.

In another pivotal dispute, רב פפא, and רב הונא בריה דר’יהושע debate whether פרוץ כעומד (open area equivalent to closed area) is acceptable to consider a side as partitioned off or not.

The general rule is that when מחיצות (partitions) are used to close off a רשות היחיד, gaps of up to 10 אמות are permitted, and considered to be an acceptable פתח (opening) rather than a פירצה (gap)

However, there is an additional requirement recorded in the Mishna on 15b, that there may not be more open space than closed space (in the absence of a צורת הפתח in which case it is more complex.)

The Gemara on this Mishna opens with the above-mentioned debate regarding whether it is sufficient if the closed area is equal to the open area, or whether it needs to be MORE than the open area.

The Gemara seems to understand that the requirement that most of the partition not be open is a הלכה למשה מסיני (law given orally to Moshe at Sinai and passed on via tradition.)- (the precise term used here is “אגמריה רחמנא למשה” which seems pretty self-explanatory!)

It then understands the dispute to be a question of the nature of this הל”מ.

Was it a requirement not to allow most of the partition to be open, or was it a requirement requiring most of the partition to be closed?

Much debate follows onto daf 16 until in a major curveball, the halacha is resolved according to the lenient view, but this seems to be an explicit example of a dispute regarding something passed on explicitly to Moshe at Sinai, a counter-example to the Rambam’s hypothesis limiting such debate to matters involving the rules of interpretation or rabbinic decrees.

Once again, it seems that a simple explanation of the Rambam might not seem feasible and more analysis is required!

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 12-13 Tolerance, the origins of dispute, and “”אלו ואלו

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In the Mishna on 12b, there is a 3-way dispute between Beis Shamai, Beis Hillel, and Rabbi Eliezer, regarding what is required to mark the open fourth side of a מבוי closed on the other 3 sides.

Whereas we have been working until now under the correct assumption that the lenient view requiring only one post on either side is authoritative, we see that though this is the view of Beis Hillel, Beis Shamai require a post and a beam, and Rabbi Eliezer requires 2 posts, one on each side.

In an early post )Shabbos 130b), we discussed the way Rabbi Eliezer was referred to by the Gemara there as a שמותי , a term that the Yerushalmi quoted in the second explanation in Rashi there, as well as in Tosfos, understood to mean that he belonged to Beis Shamai.

However, as we also know )Avos 2/9) that Rabbi Eliezer was one of the greatest students of Rabban Yochanan ben Zakai, who received his tradition from both Hillel and Shamai, it is very possible that he had influence from the scions of both houses.

In this Mishna, it seems that Rabbi Eliezer was neither bound completely to either Beis Hillel or Beis Shamai, but fiercely independent.

This is somehow despite the fact that he took such pride in the fact that he never said anything that he never heard from his Rabbi (Sukkah 28a.)

This can be explained by the fact that his tradition came directly from Rabban Yochanan ben Zakai who learnt from both Hillel and Shamai, as mentioned above, and thus sometimes was in line with Beis Shamai and sometimes with Beis Hillel.

It can also be that what he meant was not that he heard every precise ruling from his Rebbe, but that he always followed the methodology he learnt from his Rebbe, no matter what conclusion it led to, thus ironically adding to his independence in the realm of practical halacha.

It is a common experience that independents, despite often being revered on both sides of the aisle, usually struggle for acceptance on either side.

Perhaps Rabbi Eliezer was both great and confident enough to have his feet in both worlds, but still able to interpret the Torah and rule according to his own view, even taking a separate stand from both strong “councils of sages.”

Even for the usually tolerant members of Beit Hillel, despite his having learnt from some of their teachers, he was never “Beis Hillel” enough, but a “שמותי”

This independence and consequent lack of acceptance came to a head in the case of the stove of Achnai (Bava Metzia 59b), where his refusal to accept the majority opinion of all the other sages resulted in his virtually unprecedented excommunication, which according to the first explanation in the above-quoted Rashi, was the reason for his being called a שמותי”” , from the word “שמתא” (excommunication.)

The truth is that lacking the safety in numbers that members of both main parties tend to have, independents often suffer the most, and are treated more harshly by members of the dominant party than members of the opposition are treated, even if their ideologies are somewhere in-between.

Whereas Rabbi Eliezer’s independence was virtually stamped out by his colleagues, who burnt all the things that he had declared pure, Beis Hillel are lauded towards the end of daf 13b for their respectful attitude to the views of Beis Shamai, not only quoting their views, but even mentioning them before their own, as illustrated in a Mishna in Sukkah brought by our Gemara.

My beloved son, Noam, asked me the other night, while learning mishnayos Shabbos together, why Beis Shamai are mentioned first so often in Mishnayos even though Beis Hillel are more authoritative.

I answered that this could very well be a reflection of this tolerant attitude first illustrated in the Mishna in sukkah quoted by our Gemara, which Rabbi Yehuda haNasi, a direct descendant of Hillel, carried on when he compiled the Mishna.

This tolerance of the other side, is given in our Gemara as the reason that the view of Beis Hillel became normatively accepted over that of Beis Shamai- In order for one’s view to be accepted, it seems important that one is open-minded, respectful, and confident enough to hear, consider, and even quote dissenting views. This shows that this view was acquired after fully considering all sides and without automatically putting down the other side and is thus a view worthy of acceptance.

Our Gemara points out that this preference given to Beis Hillel was not because the rulings of Shamai were not legitimate, but rather for the above reason- objectively speaking, “אלו ואלו דברי אלוקים חיים”-“these and those are the words of the living G-d!”

It might seem logically impossible that two seemingly contradictory views can both be considered objectively part of the divine Torah, but this seems to be precisely what the Gemara is saying.

The Torah is the word of the “living G-d” and thus constantly branching off into different explanations and possibilities.

So long as different views are all based on the “מסורה”, that living chain of transmission that goes back to Moshe at Sinai, it is not so much the actual conclusion that makes them legitimate, but the way that was achieved.

Not every alternative view has halachik legitimacy- only those that can be justified based on previous stages in the tradition.

Both Beis Hillel and Beis Shamai were required to back their views up with pessukim in the Torah, or oral traditions dating back to Moshe at Sinai, and the same applies to those that come after them.

It is not tolerance alone that gave Beis Hillel their authority, as reading this sugya in isolation might imply. In other places, their authority is derived on their greater numbers and on the “voice from heaven” )see Eruvin 7a for example) that proclaimed that the halacha is like them.

In fact, in the earlier sugya in this masechta, it seems that before this voice from heaven, one was permitted to choose which one of these great schools of Torah to follows, and that according to those who did not consider a voice from heaven to be authoritative, such as none other than Rabbi Yehoshua himself, this was permitted even after this voice from heaven, despite the other factors in Beis Hillel’s favor!

We have explained the idea of “אלו ואלו” with the understanding that in matters subject to debate, there is no objectively true answer, but both sides are legitimate “Torah”- the superiority of Beis Hillel is only practical, and as a result of the traits they possess, their superior numbers, and the voice from heaven.

Yet the Rambam appears to limit this idea significantly.

According to him (Mamrim 1/4), matters mentioned explicitly in the Torah or received orally through tradition tracing back to Moshe’s revelation at Sinai are never subject to debate.

Only matters that are derived though Chazal’s use of the rules for interpreting the Torah, can be subject to debate.

Even the later, were subject to the final ruling of the great court, so long as that court was still functioning, and debate was only legitimate until such a ruling was given.

Once it ceased to function, such matters that had not yet been resolved became subject to debate again.

Given that many or most of the disputes between Beis Shamai and Beis Hillel occurred at a time when the great court was still functioning, it follows that these disputes were subject to a final ruling by that court.

It is those rulings, according to the Rambam, not the tolerance of Beis Hillel or the voice from heaven, that were authoritative.

This fits well with the view that the main reason for their greater authority was their superior numbers, which would have allowed them to dominate the great court they were part of.

How the Rambam would explain the other reasons given for their authority, is subject to further analysis- it is possible, that as might often be his way, he simply regarded one source to be more authoritative in keeping with other accepted rules of halacha, and rules accordingly.

It is also possible that it is precisely that tolerance and extra willingness to engage in respectful debate that swung the majority of the Sanhedrin, including the “independents” towards their side, and that the “voice from heaven” was the מכה בפטיש (final blow) that brought them to this decision.

This also explains the harsh treatment meted out to Rabbi Eliezer by the members of Beis Hillel.

According to the Rambam above, even matters that were subject to dispute, were eventually concluded by the Sanhedrin while it functioned , and thereafter, no-one had the authority to act to the contrary.

Their opinions were still recorded out of respect, but they were now out of the realm of accepted halacha.

They might still have theoretical value in the study-halls, and even be considered “the words of the living G-d,” but the option for anyone to rule accordingly was now closed.

It follows that in post Sanhedrin times, debate in practical halacha is possible once again, and there is no threat of excommunication for those who follow their own or other minority views, but only in matters that had not already been decided by the Sanhedrin, and in matters that fit the Rambam’s strict criteria for debate.

If so, given that the Talmud itself was sealed by Ravina and Rav Ashi long after the Sanhedrin had ceased to function, how do we explain the universally accepted binding authority given to it by all followers of the מסורות?

We will have to leave this for a difference discussion, but a good place to start is the introduction of the Rambam himself to the Mishna Torah, the great masterwork we just quoted from.

Does everyone agree with the Rambam’s strict criteria regarding which matters are subject to debate, and does the huge collection of debates scattered throughout the Mishna and the Gemara back up this very strong claim? This too, will need to be left for a later discussion.

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

Shmuli Phillips Ari Kahn Johnny Solomon

Eruvin 7 A philosophy of stringencies or leniencies

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There is a tendency in parts of the Torah world to err on the side of caution in all halachik matters and take on the more stringent opinions in all areas of halacha.
On the other hand, there is a tendency amongst other sectors to constantly search for  leniencies, picking and choosing the easier opinion in each area of halacha.
Are either of the above policies legitimate, or is one perhaps required to choose one or more recognized halachik authorities and follow their views in every area of halacha, irrespective of whether they are lenient or stringent?
On the previous daf, we recorded a dispute between Rav and Shmuel regarding how to close off a מבוי מפולש (alley open to the public domain at both ends.)
Rav ruled leniently like the Tana Kama in the beraisa and held that a צורת הפתח (form of an entrance) on one end and a pole or beam on the other end was sufficient.
On the other hand, Shmuel ruled stringently like Beis Hillel according to Chananya, and held that a צורת הפתח was not sufficient on the one side, but doors were required.
We also saw a different dispute, also between Rav and Shmuel, regarding a    מבוי עקום (bent alley.)
Until then, we had been dealing solely with a straight, rectangular מבוי, closed along its lengths and open either on one or two ends.
This dispute, however, centered around an “L” shaped מבוי that makes a right-angled turn in the middle, but is still open at both ends.
As such, the one end is not aligned with the other, and it is unclear whether such a מבוי  is to be treated at each end as if it is only open on that end, making a pole or beam sufficient, or whether it is to be treated like a מבוי open on both ends to a public domain, and thus require one of the more stringent solutions discussed in the Beraisa .
In this case, Rav is stringent, and holds that it is to be regarded as open on both sides (מפולש), whereas Shmuel is lenient and treats it as if it is only open on one side (סתום).
When we combine both disputes, it comes out that such a מבוי does not require doors according to either Rav or Shmuel.
This is because:
1.       Although Rav rules that it is to be treated like a מבוי מפולש (open alley), he also rules like the Tana Kama that a מבוי מפולש (open alley) does not require doors on either side.
2.       Although Shmuel rules that a מבוי מפולש requires doors on one side, he rules that such a מבוי עכום is to be treated like a מבוי סתום (closed alley.)
 
Despite the fact that we have thus not found ANY authority who holds that a מבוי עכום  requires doors, the Gemara tells us that there was such a מבוי  in the city of Neharda, Shmuel’s home town, and the authorities treated it with the stringencies of both Rav and Shmuel, requiring doors on one side!
This means essentially that they “collected” the stringencies of both, treating it like an open מבוי in accordance with Rav, and requiring an open מבוי to have doors in accordance with Shmuel.
The Gemara is extremely bothered with this approach of collecting חומרות (stringencies,) due to a Beraisa that focusses on general principles applying to disputes between בית הלל and בית שמאי.
The Beraisa rules that the law is in accordance with Beis Hillel in all cases. Yet, one is permitted to choose which of them to follow (the Gemara later explains that this was only before the בת קול  (voice from heaven) that proclaimed that the law is always like Beis Hillel, or according to the view of Rabbi Yehoshua who did not accept the authority of voices from heaven, or that this statement refers to similar disputes amongst later sages that have not yet been resolved.)
The Beraisa, however, condemns those who rely on the leniencies of both of them, calling them “wicked,” and mocks those who follow the stringencies of both of them, applying to them the verse הכסיל בחושך הולך (“the fool walks in darkness”- Koheles 2.)
On today’s daf, 2 approaches are given to explain how the authorities in Neharda had not behaved like “fools” by being stringent like both opinions:
1.       Rav Nachman bar Yitchak is of the view that in practise, even Rav would not be lenient and accept only a צורת הפתח, a claim made already by Rav Huna.
2.       Rav Shizvi seeks to explain this even according to the view of Rav Ada bar Ahava that Rav was indeed lenient in practise. He interprets the Beraisa’s application of the term “fools” to those who practise the stringencies of both houses in a far more limited fashion.
He claims that this only applies when the two disputes are inter-connected, with the lenient view in the one case logically requiring a stringent view in the other, and vice versa.
Where the two debates are completely independent of one another, there is no issue with practicing the stringencies of both.
 
To support the second approach, Rav Shizvi brings the case of the “spine and the skull,” discussed in a Mishna (Ohalos 2/3)
This Mishna deals with the bones of a corpse that are considered like the whole corpse itself and cause everything in the same אהל (covered area) to become impure.
In contrast, most bones on their own do not cause such impurity, and only cause impurity to things that touch them.
It is universally accepted that the whole spine and whole skull, being the most essentially bones of the body, are treated with the stringencies of the body itself, and make everything under the same roof of them impure.
If the spine or skull is no longer whole, however, they are treated more leniently like any other bone.
There is a dispute between בית הלל and בית שמאי regarding how much of the spine or skull needs to be missing for it to no longer be considered whole.
Regarding the spine, בית שמאי holds that unless at least 2 vertebrae are missing, it is still considered whole and the more stringent rules of impurity apply. בית הלל, on the other hand, hold that as soon as one vertebrae is missing, the spine is no longer considered whole and the more lenient rules of impurity apply.
Regarding the skull, בית שמאי are once again stringent and hold that it still considered whole unless enough is missing to cause death in a living person.
בית הלל once again are more lenient, and say if the amount normally removed by a doctor’s drill (possibly in therapeutic  surgery) from a live person is missing from the dead man’s skull, it is already considered incomplete.
Rav Shizvi then refers to the ruling of Rav Yehuda in the name of Shmuel that the same criteria apply to the laws of טריפות (terminally injured animals.)
Missing pieces in the spine and skull before slaughter are counted amongst the terminal injuries that render an animal non-kosher even after proper slaughter.
In order for it to be considered “incomplete” and thus non-kosher, בית שמאי use the more stringent criteria they applied to a corpse, essentially making it harder for it to be considered non-kosher. This turns out effectively to be a leniency in the rules of kashrus.
בית הלל in contrast, use the more lenient criteria they use to release the spine and skull from the more stringent laws of impurity, in effect making it easier for the animal to be considered non-kosher, and thus creating a stringency in the laws of kashrus!
This means that in this case, a leniency in one area of halacha, namely impurity, logically requires a corresponding stringency in a different area, namely the laws of kashrus, and vice versa.
Thus being stringent in both areas, and applying the stringent laws of impurity to a spine missing only one bone, but also considering an animal with such a spine to be non-kosher, is logically inconsistent, as is applying the lenient laws of impurity but also considering it to be kosher.
In such cases, says Rav Shizvi, being stringent like both opinions is logically inconsistent and thus foolish.
A generally cautious and stringent approach to halacha in which the stringencies of different authorities are adopted is thus not considered like a “fool walking in the darkness”  according to his interpretation of the Beraisa, unless it leads to logically inconsistency in one’s behaviour.
It is not stringency per se that is the issue, but logically inconsistent behaviour.

A spine missing one vertebra is either considered whole or not, but cannot be both whole and incomplete.

In order to develop a broader approach to this issue, a number of questions need to be raised, among them:
1.       IS Rav Shizvi’s interpretation of the Beraisa only brought in order to reconcile Rav Ada bar Ahava’s view that Rav was lenient in practise regarding a צורת הפתח in a מבוי מפולש, but Rav Nachman bar Yitchak would still prefer the original and  simpler interpretation of the Beraisa that considers collecting stringencies in general to  be a foolish and dark approach?
2.        If this is not so, we would need to explain why Rav Nachman bar Yitchak doesn’t make the obvious distinction that Rav Shizvi makes and instead chooses a view of Rav that is subject to debate.
3.       If Rav Nachman bar Yitchak indeed favors the original and simple approach, do we accept his broader view of the “fool in the dark” or the more limited interpretation of Rav Shizvi?
4.       If Rav Shizvi’s distinction is to be accepted, does this apply only to the Beraisa’s mockery of the chronic מחמיר  (one who is stringent) or does it also apply to the Beraisa’s condemnation of the chronic מקיל   (one who is lenient.) On the one hand, he only makes the distinction regarding stringency, but the need for consistency within the wording of the Beraisa seems to indicate that it applies equally to leniencies. If this is so, he would see no “wickedness” in “collecting” leniencies from different authorities, so long as they are not logically inconsistent with each other.
 
 
Answering these questions requires a thorough study of all parallel and related sugyos  and the Rishonim who comment on them. As this is way out of the scope of this post, we shall have to wait for future opportunities to revisit this 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.