Pesachim 28-29 Chametz after Pesach – חמץ שעבר עליו הפסח

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

We are already aware that it is forbidden to eat, derive benefit from, or own Chametz during Pesach itself, and that this prohibition extends forwards to the afternoon of Pesach eve, from midday onwards.

The Mishna on Daf 28a tells us that whereas chametz that belonged to a non-Jew on Pesach(literally that Pesach “passed over” ) may be benefitted from by a Jew after Pesach, chametz that belonged to a Jew on Pesach may not, because the passuk says “ולא יראה לך”- chametz shall not be seen by you, which we have learnt is a source for the twin prohibition of seeing and owning chametz on Pesach (see post on Pesachim 5-7.)

We are immediately struck by the need to explain how the prohibition against seeing and owning chametz on Pesach is connected to the Mishna’s חדוש  (novelty) that chametz owned by a Jew on Pesach remains forbidden after Pesach, and two possibilities spring to mind:

  1. Chazal learnt from the passuk that this biblical prohibition extends beyond Pesach itself.
  2. Chazal forbade such chametz after pesach on a rabbinical level due to the biblical prohibition of owning it on Pesach itself, as some form of fine.

Besides for the obvious differences in how biblical and rabbinical prohibitions are treated when it comes to doubts and other difficult situations, a few POSSIBLE practical ramifications of the above analysis could be whether chametz that a Jew was unaware was in his possession on Pesach (שוגג)  should be subject to the prohibition.

If the biblical prohibition on Chametz in a Jew’s possession on pesach simply extends to after Pesach, it would seem irrelevant whether the Jew intentionally kept the chametz in his possession or did so mistakenly.

However, if it is a rabbinical fine, it is possible, though not by any means certain, that Chazal did not extend the fine for an unintentional transgression, particularly if he performed the search and destroy operation to the best of his ability.

It is also possible though that Chazal wanted  a person to be so careful that they extended this fine even to an unintentional lapse, perhaps even if he did בטול  and thus never even transgressed the biblical prohibition of owning chametz at all!

In contrast, if it is simple an extension of the biblical prohibition, it does not seem likely that it would apply to someone who performed בטול  and thus never transgressed the biblical prohibition at all, but on the other hand, it would probably apply to one who transgressed the prohibition unintentionally.

The Gemara opens its discussion on this Mishna by attempting to identify whose view, amongst 3 Tannaim who debate the subject in a Beraisa, is reflected in this Mishna.

It brings a Beraisa which lists 3 opinions:

  1. Rabbi Yehuda holds that it is biblically forbidden for  Jew to eat or benefit from chametz
  2. Before Pesach  (from midday on Erev Pesach)
  3. During Pesach and one who does so is subject to כרת.
  4. That a Jew owned on Pesach, even after Pesach
  • Rabbi Shimon holds that there is no biblical prohibition against chametz either on Erev Pesach or after Pesach
  • Rabbi Yossi haGalili holds that even on Pesach, the prohibition is limited to eating (and owning) chametz and not to benefitting from it.

The Gemara notes that our Mishna does not appear to reflect the view of any of these 3 authorities because

  1. Rabbi Yehuda does not appear to differentiate between chametz of a Jew and that of a non-Jew, learning the 3 prohibited periods from the three times the prohibition of chametz is mentioned.
  2. Rabbi Shimon does not appear to forbid chametz after Pesach at all
  3. Rabbi Yosi holds that even during Pesach, the prohibition is only to eat chametz and not to benefit from it.

The Gemara brings two approaches two reconciling the Mishna with at least one of these opinions:

  1. Rav Acha bar Yaakov says that the Mishna does indeed reflect the view of Rabbi Yehuda, but that Rabbi Yehuda compares the prohibition of benefitting from chametz to that of seeing chametz, which we already know does not apply to chametz of a non-Jew. According to this, we would need to say that Rabbi Yehuda holds that there is no biblical prohibition of benefitting or perhaps even eating chametz of  non-Jew even during Pesach, which would be an enormous חדוש (see Rashi.)
  2. Avoiding the need for such a חדוש  in the words of Rabbi Yehuda (who initially appeared to be more stringent that his colleagues), Rava says that the Mishna reflects the view of Rabbi Shimon, and that the prohibition of benefitting from chametz owned by a Jew over Pesach, AFTER Pesach, is a rabbinical fine for owning it on Pesach , following the second explanation we suggested earlier of the passuk the Mishna brings- the passuk thus being the reason but not the actual source for the prohibition.

The Gemara proves that Rav Acha bar Yaakov changed his mind and m,m accepted Rava’s explanation.

As such, we now have a סתם משנה  supporting Rabbi Shimon who holds that there is no biblical prohibition of chametz  before or after Pesach at all and that the prohibition of benefitting from chametz owned on a Jew over Pesach AFTER Pesach is only a rabbinical fine.

It follows, based on an earlier analysis, that in case of a ספק  or other situation where rabbinical prohibitions do not apply, we should perhaps be lenient, and that in situations where a person tried his best to get rid of his chametz and unintentionally left some over, there MIGHT be no need for such a fine and the chametz might be permitted.

Yet, the Rambam rules (Chametz uMatza 1/8,9)  seemingly like Rabbi Yehuda, that Chametz is biblically forbidden from midday on Erev Pesach and  that even if one mistakenly left chametz in his possession, or even if he did so due to matters beyond his control, it is still forbidden after Pesach (Chametz uMatza 1/4 .)

Whereas his former his ruling is subject to debate amongst Rishonim (see for example Raavad there) the consensus of the Rishonim seems to follow his later ruling (see Ramban, Ritva, Rosh, Ran etc) and go even further by forbidden it even if he did בטול  but failed to get rid of it.

The basis of these rulings is the subject of much discussion, and we shall return to it in the coming daf, Hashem willing.

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.

Pesachim 25-26 Benefit by force- הנאה הבאה לאדם בעל כרחיה

1. Sugya synopsis

2. Semantic matters

3. פסיק רישיה and הנאה הבאה לאדן בעל כרחיה

4. הנאה as a liability

5. Entering situations of sexual temptation

Sugya Synopsis

Given that the prohibition of chametz on pesach is included in the list of איסורי הנאה  (prohibitions that one is not allowed to derive any benefit from,) our perek spends considerable time discussing the scope of such prohibitions.

Whereas when it comes to most forbidden foods, the prohibition is limited to the act of eating and when it comes to shabbos and forbidden relationships, specific actions are forbidden, when it comes to this category of prohibitions, benefit itself is prohibited, and this might apply even to benefits that do not involve a specific action (לאו שאין בו נעשה)  such as just smelling the fragrant aroma of incense offered for idolatrous purposes.

The central topic of the end of daf 25 and most of daf 26 is the status of הנאה הבאה לאדם בעל כרחיה, benefit which comes to a person “by force.”

Although the Gemara itself does not initially give an example of this, Rashi cites the case mentioned above of a person who walks past a place where incense is being offered for idolatrous purposes and cannot help smelling the fragrant aroma.

Abaya holds that this is permitted, whereas Rava holds that it is forbidden.

Seeing as we are dealing with benefit which is unavoidable, debating whether it is permitted or forbidden seems rather spurious, and it is thus obvious that the debate does not center around someone already in the situation, but whether one is permitted to willingly enter into a situation where  one knows that this will or might happen.

Alternatively, the debate could center upon whether a person is required to immediately move away from such a situation the moment he encounters it, even if it means retracing his steps and taking an alternative or possibly longer route to avoid further benefit, or whether one may carry on and pass the area, seeing as the benefit he gets from the smell is forced upon him.

Either way, the Gemara divides the discussion up into 4 different scenarios, which depend on whether it is אפשר (possible) to avoid the benefit or not, and whether one is מתכוין  (intends) to derive benefit or not.

The 4 permutations are as follows:

  1. When it is both impossible to avoid the prohibition and one has no intention to derive benefit from it (2 factors in one’s favor)
  2. When it is impossible to avoid the prohibition, but one has intention to derive benefit from it. (1 factor in one’s favor and 1 against)
  3. When it is possible to avoid the prohibition, but one has no intention to derive benefit from it. (1 factor against and one fact in favor)
  4. When it is possible to avoid the prohibition and one has intention to benefit from it. (2 factors against)

The Gemara first claims that everyone would be lenient in the first case, and stringent in the second and fourth cases- in other words, if one has intention to benefit, it is forbidden, whether it is possible to avoid the situation or not, and if one has no intention to benefit AND it is impossible to avoid the situation, they both agree  that it is permitted.

The debate is solely focussed on the third case, where it is possible to avoid the situation but one does not intend to derive benefit from the prohibition, and centers around the famous view of Rabbi Shimon (see our various posts on this back in Shabbos) who holds that דבר שאין מתכוין מותר (one is permitted to perform a permitted action even if there is a significant concern that it will be accompanied by a secondary forbidden action.)

The classic example of this principle is his permission for a person to drag a bed, chair, or bench along the ground even though he might dig a ditch while doing so, as long as this is not his intention.

However, as we have seen, it is clear from various sources ( see  post on Shabbos 133) that this leniency of Rabbi Shimon’s applies not only to the laws of shabbos but to all areas of halacha.

As such, Abaya argues that seeing as the act of walking to wherever one is going is a permitted action, it remains permitted even though one might transgress the prohibition of benefitting from עבודה זרה  (idol-worship) along the way.

Rava, on the other hand, claims that the leniency of Rabbi Shimon is limited to cases where it is impossible to achieve one’s goal without taking the risk, for example if the above-mentioned furniture is too large or heavy to lift.

However, if it is possible to avoid the risk, such as in the case of smaller/less heavy  furniture which one can lift, one is required to avoid the risk altogether.

It should be noted that this limitation to Rabbi Shimon’s leniency was suggested elsewhere (Shabbos 29b) and rejected, as it will be later in this sugya, but it is of course important to understand this הוה אמינא  (initial thought) as well.

The Gemara immediately brings an איכא דאמרי  (alternative version) whereby everyone (in this case   both Rabbi Shimon and Rabbi Yehuda [who normally forbids דבר שאין מתכוין ] ) agrees that in the first case, where the situation is unavoidable and one has no intention to benefit, it is permitted, and that in the fourth situation where the situation is avoidable and one has intention to benefit, it is forbidden. 

The third scenario where it is possible to avoid the situation, but one has no intention to benefit, is the classic dispute between Rabbi Shimon and Rabbi Yehuda.

According to this version, It is the second scenario, where it is impossible to avoid the situation but one DOES intend to benefit once one is in the situation, which is subject to debate between Abaya and Rava.

According to this version, the debate between Abaya and Rava centers not on the view of Rabbi Shimon, for whom intention is the critical factor and for whom it would thus be clearly forbidden (see Rashi) but on the view of Rabbi Yehuda who seems less concerned with intention and more concerned with whether it is possible to avoid the situation or not.

Abaya claims that just like Rabbi Yehuda makes no distinction in a case where it is possible to avoid the situation between a case when one  intends to benefit and a case when one does not, forbidding דבר שאין מתכוין regardless, so also in a case where it is impossible to avoid the situation, he does not care whether one intends to  derive an otherwise forbidden side benefit from it, or not, and permits it either way. If this is correct, it would follow that once a person is in an unavoidable situation in which he is forced to derive a forbidden benefit, having conscious intent to enjoy the situation might be permitted, something which seems like a tremendous novelty.

Rava, in contrast, counters that Rabbi Yehuda’s lack of concern for whether one has intention for the forbidden action or benefit or not only applies לחומרה (stringently) to forbid an otherwise permitted act if it could involve a forbidden secondary action or benefit.

However, he certainly does not disregard intention in order to be lenient and permit one to have specific intention to perform a forbidden action or derive a forbidden benefit if one is already in a situation where some benefit is “forced on him.”  Although one might not be required to leave the situation, one is certainly not permitted to have intention to derive benefit from it.

After bringing various proof texts for the views of Abaya and Rava (with it being important for us to take note of which version of the debate the proofs seem to assume to be correct,) the Gemara brings a  Mishna  (Kil’ayim 9/5  ) which permits one to “wear” כלאים  (forbidden garments which contain a mixture of wool and linen, also known as שעטנז ) in order to display it to would be non-Jewish buyers, so long as one does not intend to derive warmth or protection from it.

This is despite the fact that one could rather display it from behind, as the צנועים  (more “modest” or careful people) would do.

This proves without a doubt that the view that permits דבר שאין מתכוין, namely Rabbi Shimon, permits it even when it is possible to avoid the situation and achieve one’s objective without risking the secondary forbidden action, thus disproving the first version of Rava’s opinion.

Although this case and the proof from it requires its own analysis, it follows that we would either rule like Abaya in the first version, despite the rule that we follow Rava in all but 6 disputes against him (Bava Metzia  22b) or more likely, in order to keep with this rule, that we follow the second version of Rava’s opinion.

Either way, as following the second version of Abaya’s view would unnecessarily go against this rule, this seems like an unlikely possibility.

As such, it seems to be the conclusion of the sugya that scenarios 1 and 3 are clearly permitted (at least according to Rabbi Shimon whom later Amoraim have clearly deemed authoritative )- so long as one has no intention to derive forbidden benefit, even if the situation is avoidable, there is no obligation to avoid it.

On the other hand, in cases 2 and 4, where one has intention to derive forbidden benefit, entering the situation is forbidden, irrespective of whether it is avoidable or not.

Now that we have summarized the flow of the sugya, according to Rashi and the consensus of most Rishonim, it is time to focus on some of the difficulties raised by this sugya.

Semantic Matters

As we have seen, the case of הנאה הבאה לאדם בעל כרחיה  (benefit which is forced upon a person) has been divided into 4 scenarios, based on 2 critical factors, namely whether is it possible to avoid the situation and whether one intends to derive the forbidden benefit.

However, the very term בעל כרחיה (by force) seems to exclude a situation where it is possible to avoid the situation, as well as a case where one has intention to derive forbidden benefit.

If one is able to avoid the situation, how can any subsequent benefit be considered “by force?”

Similarly, if when faced with the situation, one consciously has intention to enjoy it, how can that be considered “by force?”

It seems that Rashi and most Rishonim understand that

  1.  when referring to אפשר  ( the possibility to avoid the situation,) the Gemara means that it is possible to achieve the intended permitted goal (such as reaching one’s destination) by taking an alternative route

Whereas

  1. ii.                    לא אפשר  refers to a situation where it is impossible to achieve one’s otherwise permitted goal without taking the problematic route.

Tosfos and other Rishonim  (see for example Ritva in the name of the רא”ה) add that it is also considered לא אפשר  (impossible to avoid) if the alternative route or method is longer or requires more effort, time, or money.

“אפשר” , in contrast, is  understand to refer to a situation where it is possible to perform one’s intended otherwise permitted task in an equally convenient way that  avoids the risk.

Yet even such a case, while forbidden according to the first version of Rava’s view, seems to still be referred to by the Gemara as “by force,” seeing as if he goes on his chosen route, he is forced into encountering the forbidden benefit, an extremely broad definition of “by force” to say the least.

Furthermore, it seems according to Rashi and most other Rishonim (see for example Meiri, though see Ritva for a different view) that קא מכוין  refers to one who consciously intends to enjoy the forbidden benefit, and it requires some serious  analysis to understand how this could ever be considered “by force.”

One could possibly explain that once a person is forced into a situation where he cannot avoid enjoying a forbidden pleasure, then “giving in” and consciously enjoying it, while probably not permitted, is to a certain extent, still considered to be “forced.”

This could perhaps be compared to a person who is raped but at a certain point, once feeling the pleasure of physical stimulation, gives in and “enjoys it.” (obviously, the plausibility of this depends on the individual and precise circumstances, but such cases certainly seem to exist -a thorough analysis if the sugya in Yevamos 53b of אין אונס לערוה  is recommended at this point.)

Whereas the victim might be obligated to try his best to mentally detach himself and avoid deriving pleasure from the physical sensation, it might be harder to condemn him for succumbing and doing so, given that the combination of being forced into the situation and biology make it close to impossible to avoid- even if he is punished for this, as in the case of אונס לערוה  (Yevamos 53b,) it might still be called “by force.”- he was simply required to resist the force.

The Ran, however, simply explains that even though one intends to derive benefit, if the benefit is not intended for him (or brought about by him)  but comes automatically, it is still called in this  context “by force.”

As mentioned above, the Ritva goes to the opposite extreme and says that whenever a person benefits, it is considered intentional, and that לא קא מכוין  refers to when the person himself does not (or perhaps believes he will not ) derive pleasure from the forbidden entity, even if many or most people would (why the phrase הנאה  is used to describe someone who does not have הנאה  requires explanation according to this view.)

These various explanations could have major practical ramifications, but more on that at a later stage hopefully.

פסיק רישיה  and הנאה הבאה לאדם בעל כרחיה

One of the issues that bothers the Rishonim is the fact that in our sugya, it seems clear that according to Rabbi Shimon who permits דבר שאין מתכוין, there is no problem walking past a place where there is a pleasant forbidden fragrance.

Likewise, examples are given of sitting in the shade of the Temple’s walls for a derasha and  lowering workers into the קדש הקדשים  for maintenance even though they will derive forbidden benefit from seeing the inside.

Yet it is made clear in many places that even Rabbi Shimon forbids פסיק רישיה , a situation where the secondary forbidden action (in this case benefit) is inevitable, and it seems pretty much inevitable that a person in these situations will derive some benefit from them.

Whereas the Tosfos choose to assume that all these cases do not involve inevitable benefit (perhaps as different people react differently to certain scents and sights etc) the מהר”ם חאלאוה distinguishes between a forbidden action such as a melacha on shabbos whose completion is not affected by one’s lack of intention, and benefit, which is not considered complete when one lacks intention to benefit.

The latter’s חידוש  (novel idea) seems to be that unintended pleasure is not considered complete pleasure at all, and even if such pleasure is inevitable, the stringency of פסיק רישיה  does not apply to it, something which of course requires further explanation.

Of course, according to the view of the Ritva in the name of the רא”ה quoted above, the leniency of דבר שאין מתכוין  only applies where a person does not derive pleasure from the problematic situation, but if he does derive pleasure, it is considered intentional, and the question does not begin.

הנאה  as a stringency

We have seen in our sugya that Rabbi Shimon’s leniency of דבר שאין מתכוין מותר  is extended to forbidden benefits occurred during otherwise permitted actions.

However, we have dealt before with another related leniency, namely מתעסק, where one intends to perform a permitted action and lands up doing something that is forbidden (see posts on shabbos 72 and 92  for background.)

Regarding מתעסק, we have seen that when benefit is derived from the unintended forbidden action (such as eating forbidden fats thinking that it is permitted fat or sleeping with a woman who is forbidden to him, thinking she is permitted to him,) one is still liable to bring a korban (sacrifice) for one’s actions.

We see a similar idea regarding נזיקין  (damages- B.K. 19b) that although an ox is sometimes exempt from damages it does with its mouth in public property, the owner is liable up to the value of the benefit that it derived from doing so (such as the cost of the food it ate.)

It seems from the above that whenever a person (or his animal) derives pleasure from something, his lack of intent or warning is irrelevant to his liability for any transgression derived thereby.

It seems, at least on the face of it, that there must be a strong distinction between מתעסק  and דבר שאין מתכוין when it comes to benefit and that the latter is conceptually so different that הנאה  does not affect it at all.

 Perhaps this because whereas in מתעסק, the primary action one lands up doing, albeit unintentionally, is forbidden, in the case of דבר שאין מתכוין, the primary action remains permitted and the forbidden action is merely a secondary by-product of that action- secondary benefit that is only a by-product of a permitted action  might not be enough to create liability or even to forbid the permitted action in the first place.

OF course, once again, if we were to adopt the approach of the Ritva quoted above, then any benefit is treated as intentional (even though possibly still called “by force”) and there is no need for any such distinction.

Entering situations of sexual temptation for the sake of permitted activities

It follows from the conclusion of our sugya, at least according to most Rishonim, that it is permitted to enter a situation where one might derive forbidden but unintended benefit, if one needs to for some otherwise permitted purpose, even if there is an equally convenient alternative route or way of achieving that objective (אפשר ולא קא מכוין)

Yet we are told (Bava Basra 57b) that a man who intentionally walks past a place where women are washing clothes (and thus not fully covered) where another path exists to where he is going, is called a רשע  (wicked person.)- Only if there is no alternative path, may he walk past and turn his eyes away.

It is not immediately clear from that sugya whether the alternative path needs to be as convenient as the problematic one or not, but If intentionally walking past a place where he will derive pleasure from the forbidden fragrance of idolatrous incense is permitted, even if there is an equally convenient alternative route, why should walking past this immodest situation even if an EQUALLY convenient alternative route exists, be not only forbidden but bad enough to be called a רשע ? (see though Rashbam on the sugya, as opposed to Rabbeinu Gershom, regarding what exactly this means.)

Once again, if we accept the Ritva’s explanation above, the question might not even begin.

Although it is indeed possible for a person to know in advance (or at least think)  that he does not derive pleasure from incense, the principle of אין אפוטרופוס לעריות  might teach us that it is impossible for any man to know or assume in advance that he will not derive pleasure from immodestly dressed women.

Similarly, according to the Tosfos who say that הנאה הבאה לאדם בעל כרחיה  is only permitted in cases where דבר שאין מתכוין  itself is permitted, namely when the benefit is not inevitable, perhaps the strength of the sexual urge is such that such benefit is inevitable.

However, according to the מהר”ם  חאלאוה quoted above, who explains that benefit one is “forced into” is not subject to the stringency of פסיק רישיה, neither of these explanations hold water.

Pinning an explanation on the severe status of forbidden relations in things related to them is also not sufficient, seeing as idolatry and things related to it are treated equally strictly.

Perhaps a combination of the severity of the transgression and likelihood thereof due to its overpowering attraction sets entering a situation of sexual temptation apart and even the מהרם חאלואה would agree that the leniency of הנאה הבאה לאדם בעל כרחיה  does not apply to it.

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.

Pesachim 12-13 Being above suspicion and avoiding conflicts of interest

On Daf 12b, the Gemara quotes a Mishna which records a dispute between Rabbi Meir and Rabbi Yehuda regarding the last time one is permitted to eat chametz on erev Pesach.

Rabbi Meir holds that one may eat chametz until the end of the fifth hour of the day and must burn in at the beginning of the sixth hour.

Rabbi Yehuda, however, holds that one may only eat chametz until the end of the fourth hour, may keep it in one’s possession till the end of the fifth hour, and burns it in the beginning of the sixth hour.

It should be noted that the prohibition of eating and owning chametz on a biblical level only applies from midday, and that these are rabbinical “fences” designed to avoid missing the biblical deadline.

The Gemara in 13b notes that Rav Nachman ruled like Rabbi Yehuda, and later claims that Rebbe’s own ruling supported his conclusion.

It tells how someone had deposited a leather sack (see Rashi) filled with chametz with יוחנן חקוקאה  and it was bitten open by a mouse.

It was erev pesach, and the chametz was leaking out and getting lost, and he wanted to sell it to recover whatever money he could for the owner while doing so was still allowed.

Rebbe kept telling him to wait, in case the owner came and wanted to eat it, until the beginning of the fifth hour when he told him to go to the market and sell it on his behalf.

The Gemara assumes that Rebbe meant for him to sell it to non-Jews, thus implying that he agreed with Rabbi Yehuda that eating chametz during this time is already forbidden for Jews.

After all, if he meant for him to sell it to Jews and agreed with Rabbi Meir that Jews were still permitted to eat chametz during this time, he should have rather given Yochanan the option to buy it himself first and eat it during this time, rather than requiring him to make the effort to go to the market to sell it!

The Gemara refutes this suggestion, explaining that Rebbe might indeed agree with Rabbi Meir and have intended for Yochanan to sell it to Jews on behalf of the owner.

However, Rebbe did not want him to buy it himself, due to concerns for חשד (arousing suspicion.)

As Yochanan had a vested interest in fixing the price lower than the going rate in order to buy it himself, Rebbe held that it was wrong to buy it, even for the same price as others would agree to, in order not to arouse suspicion that he had indeed done so.

To back this reasoning up, it brings a Beraisa that discussed someone who collects copper coins for charity and currently has no poor people to give them to.  Due to the concern that they might go rusty, he needs to exchange them for silver coins with someone else, but he may NOT exchange them for his own silver coins, in order not to arouse suspicion that he gave himself a favorable rate.

 This would be going against the apparently biblical directive of “והייתם נקיים מה’ ומישראל ”  – “you shall be clean from Hashem and the Jewish people (Bamidbar 32/22.)

The same applies to someone who works in a soup kitchen and has excess food: He needs to sell it to someone else, but may not buy it himself from the charity, to avoid suspicion that he might give himself a better price!

This idea can be found in an explicit Mishna (Shekalim 3/2,) which tells us that the person who puts donations given to the Temple in the 3 boxes used for storing them may not wear a garment that is folded over, shoes, an amulet, or even Tefillin, in order not to arouse suspicion that he stole from them and hid the money in one of the above items (see Rambam there.)

The idea that someone would be so brazen as to un-sow Tefillin and hide stolen money in them might seem extreme , but there have indeed been cases in modern times where “religious” Jews have been caught smuggling diamonds and other things in their Tefillin, making this Mishna even more chilling  (Rav Mordechai Kamenetzky (https://torah.org/torah-portion/drasha-5757-shoftim/) tells how when consulted about this phenomena, his saintly grandfather Rav Yaakov Kamenetzky זצ”ל  compared such behavior to someone who approaches enemy lines with a white flag as if to surrender, and throws a grenade, violating a sacred symbol of peaceful intent so that others no longer trust it.)

We saw earlier in the daf cycle (Shabbos 23a) that a person is required to leave פאה (the corner of the field left for the poor) at the end of his field, for 4 different reasons, one of them being to avoid חשד  (suspicion) that he might not have left anything at all.

Similarly, The Gemara (Bava Basra 8b) rules that it is forbidden for someone who is collecting money for charity to put  money that he finds in the street, or that someone gives him in repayment of a loan, in his own wallet, so that people should not think that it is charity money that he is taking for himself.

Rather, he should put it in the charity box, and transfer it to his own wallet once home. The people collecting money are also supposed to go in pairs for the same reason (Bava Basra 8b.)

We should note that unlike the practise in many corrupt areas of making traffic police work in pairs to make it more risky to accept bribes, the concern here is not even that they would steal the money but simply that they might be suspected of doing so- such is the ethical standard expected of  a Jew.

The directive to “be clean” does not only apply to monetary matters, but also to arousing suspicion of other types of improper behavior.

For example, one of the reasons that it is forbidden to enter a חורבה  (ruin ) is to avoid suspicion that one might be meeting a prostitute there (Brachos 3a and Rashi there.)

A Jew is required to not avoid corruption, but to avoid any suspicion of corrupt behave, and to always be AND appear squeaky clean.

There is a related concept called מראית עיין, where Chazal forbade  or required certain actions to avoid “looking bad.”

Whether this is an extension of the concern of חשד or an independent concept requires some analysis, which I hope to be able to do at a later opportunity.

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.

Pesachim 9-10 Chazaka, Rov, and other great rules of psak by roller-coaster ride

There are some dapim that flow from one to the other remaining focussed on one theme or sugya, bringing proof and counterproof for possible answers to a certain question regarding this theme.

There are other daf that seem to have much of shas contained in them, microcosms of many different albeit often interrelated principles and rules.

These daf are extreme examples of the “mini-shas” style daf, moving  roller-coast style from one global principle to the next, making all but the most experienced students of Talmud gasp for breath.

Examining all of them in detail could take years but let us have a brief look at some of them and how they relate to the central theme of the perek, namely getting rid of chametz before Pesach.

The Mishna on Daf 9 rules that there is no need to be concerned that a weasel has taken chametz into a house that one has already checked for chametz from one that has not been checked, or from one place to another.

Once one has checked it, one may assume that it remains chametz free.

The Mishna adds that if one would have to be concerned about this, there would be no end to the matter (אין לדבר סוף) , and even a complete chametz-free city would not be immune from the concern that chometz was brought in from a neighboring settlement.

This kicks off a discussion in the Gemara which involves some of the most important rules and concepts in all of Shas and  halacha, among them

  1. חזקה מעיקרא – we assume an item retains the status it had when we last saw it unless we have significant reason (רעותא)  to believe its status has changed.

This rule is derived (Chullin 10b) from the case of the בית המנוגע (leprous house.)

In the case of our Mishna, we assume that a house that has been checked remains free of chametz unless we have strong reason to assume otherwise. In fact, this is such an established principle that we need to understand what theחדוש  of the Mishna is and why we need the idea of אין לדבר סוף  to explain it.

  • כל דפריש מרובא כפריש – we assume that any item that has left its place of origin, and whose place of origin is subject to doubt, has the status of the majority of places it could have left. This is an extension of the general rule of זיל בתר רובא (following the majority,)  derived from the verse “אחרי רבים להטות”  (see Chullin 11a)

In our sugya, if crumbs became separated from one of 10 piles, 9 being matza and 1 being chametz, and is then dragged by a weasel into a room, we follow the majority and assume it was chametz that was dragged in.

  • כל הקבוע כמחצה על מחצה דמי – so long as the item in point 2 above is in its place of origin (or by extension, if we observed it leaving its place of origin,) the rule of majority does not apply, and in case of doubt as to the status of the place of origin, it is regarded as 50/50 and the rules of ספק  (doubt) apply (presumably in biblical matters be stringent and in rabbinical matters be lenient, but perhaps not as simple as all that.)

This rule is extremely complex and hard to define precisely.

In our case, if one sees a weasel dragging crumbs from one of 10 piles into a checked house, 9 being matza and 1 being chametz, and one is not sure about the status of the pile it was taken from, we do not follow the majority, and must check again out of doubt.

(the assumption here seems to be that בדיקת חמץ  is  דאורייתא , possibly in the absence of בטול  ועיין תוס’ ד”ה “היינו” )

  • אין ספק מוציא מדי ודאי – a doubt may not remove a certainty.  If an item has a certain status and there is a chance that that status may have been removed, that chance is not sufficient to remove that status.

In our case, if one sees a weasel dragging chametz into an already checked house, one may not assume that it ate it all, and needs to recheck.

  • שאני אומר – There are two boxes, one containing something permitted and one containing something forbidden, and there are also 2 items, one of the same status as the contents of the permitted box and one of the same status as the contents of the forbidden box.

Each item falls into one box, and we are not sure which item fell into which box.

We sometimes assume that the permitted item (for example Chullin)  fell into the box with permitted contents (Chullin) and that the forbidden item (for example Teruma) fell into the box with the forbidden contents (Teruma) thus preserving the permitted status of the box with the permitted contents.  The Gemara limits this rule to rabbinic prohibitions, possibly due to the general rule of ספק דרבנן לקולא .

It is interesting to note in this context that Rashi points out, possibly based on this sugya, that Teruma in our time is rabbinical in nature

Regarding chametz, the Gemara suggests that this rule applies in a case where there are 2 boxes, one of chametz and one of matza, and two houses, one that has been checked, and one that has not been checked.

One mouse takes something from the chametz box and drags it into one of the houses, and  another mouse takes something from the matza box and drags it into the house.

We are not sure which house each mouse went into.

By this rule, we can assume that the mouse with the chametz went into the checked house and the mouse without the chametz went into the unchecked house.

  • חזקת הטבע (assumptions regarding human nature)- for example, on our daf, produce left by a deceased Torah scholar can be assumed to have been tithed, as there is a חזקה  that a Talmid Chacham does not allow untithed produce to leave his hands (חזקה אין חבר מוציא מידו דבר שאינו מתוקן). This makes it a case of ודאי וודאי  and not comparable to the case regarding chametz we brought where we say אין ספק מוציא מידי ודאי.
  • הערמה  (legal fiction)- there are times when a person may you a legal loophole to permit something that would not normally be permitted.

For example, one our daf, one is permitted to intentionally bring one’s produce “through the back door”  [דרך גגות חצירות וקרפפות]  in order to exempt them from מעשר. This would make a case of produce bought from a Talmid Chacham ספק וספק  even in the absence of חזקה  mentioned in point 6.

All that and so much more to analyze in one or 2 daf and we have barely touched the Rishonim!- this is one of those times when the pace of daf yomi starts to get seriously frustrating!

How I yearn for the Yeshiva days….

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.

Pesachim 8 from Corona to Searching for chametz: Do Torah and Mitzvos protect us from danger?

Without prejudging this issue, I would like to daven that in the zechus of this and all the other learning we do, My dear father שליט”א , and teacher of so much Torah to so many, should have a refuah shleimah.

One of the most emotionally, politically, and religiously charged topics in Israel during the Corona outbreak has been the closure of shuls, Torah schools, and Yeshivos in order to prevent the spread of the disease.

On the one hand, preservation of life is one of the most sacred principles in Judaism, and one is not only permitted, but required, to transgress all commandments, except for murder, idolatry, and sexual immorality, in order to save lives (Yoma 85b,Sanhedrin 74a.)

On the other hand, not only is Torah study and prayer considered to be pillars of our and the entire world’s existence (Mishna Avos 1/2,) there is even some evidence that at least some Chazal considered both Torah and the commandments to have protective, or even healing power (see Sotah 21a.)

Despite this possibility, however, there is also a clear prohibition against intentionally using the words of Torah to heal  (see Shvuos 16b,Sanhedrin 90a/101a) opening the door to a third approach whereby learning Torah and performing mitzvot for their own sake might be permitted despite the existence of dangers in doing so, due to this protective power.

The subject is complex, and there are many sugyos that need to be studied to even get a superficial view of the issues involved.  In the context of a daf post like this, I wish to study the topic as it appears in this daf, what seems מוכרח (indisputable) from it, and what possibilities are left open.

Near the bottom of Pesachim 8a, the Gemara brings a Beraisa which states that we do not require a person to put his hand into holes and cracks in order to find chametz (rather a visual inspection with the candle is sufficient.)

The reason given for this is due to the danger involved.

The Gemara, in questioning what this danger is, rejects the possibility that it is the danger that a scorpion might be hiding in one of the holes and cracks, because it was normal to use these holes and cracks (in the walls) for storage (otherwise one would not be required to search there anyway, as only places where chametz is kept need to be searched.)

The rejection of this concern can be explained in two ways:

  1. One would not use holes and cracks for storage if scorpions were found in them due to the danger, so the danger almost certainly does not exist.
  2. There is indeed some danger of scorpions in the holes and cracks, but as it clearly did not stop one from using them for storage, it is clearly not enough of a concern to exempt one from the mitzva.

An important נפקא מינה (practical ramification) would be whether one is liable to take reasonable every-day risks for the sake of a mitzva.

If the reason that the danger factor is rejected is because we are referring even to places where scorpions are not find in holes in the wall used for storage, it could follow that in places where people used holes in the wall for storage despite the risk of scorpions (whether this is permitted or not,) there might still be no obligation to take this risk in order to perform the mitzva of בדיקת חמץ.

On the other hand, if the danger factor is rejected because we are dealing with places where despite the danger of scorpions, people still take the risk and use the holes, it would follow that in the case of a reasonable every day risk that people take, such a risk might indeed be obligatory for the sake of a mitzva like בדיקת חמץ .

It should be noted that given that, at least when בטול  is performed, בדיקת חמץ  is only דרבנן (a rabbinical requirement,) extending the exemption due to this level of danger to biblical obligations, though possible, should not be taken for granted based on this sugya alone.

After rejecting the possibility that the Beraisa is exempting one from searching holes or cracks in the walls for chametz, it concludes that we are dealing with searching in the holes formed in the heap of a collapsed wall.

Though it does not state precisely what the danger is, Rashi takes for granted that this concern is indeed due to scorpions, seeing as scorpions are far more common in garbage dumps and heaps.

Despite the more significant danger involved in this case, the Gemara is still troubled by the Beraisa’s exemption, due to the principle stated by Rabbi Elazer that     שלוחי מצוה אינם ניזוקין  (those on a mission to perform a mitzva are not harmed.)

This principle seems to indicate that a person merits protection while performing a mitzva, and that even if there is a real danger of scorpions in the pile,  the mitzva of בדיקת חמץ  will protect him.

It is important to stress that we see from here that this principle, whatever it means, applies even to a rabbinical mitzva!

After some give and take, the Gemara seems to accept the fact that although a real concern normally, the danger of scorpions is not sufficient to exempt one from the search, due to this rule.

It concludes that the danger mentioned is that once the mitzva is over and the protection it affords is no longer active, he might continue feeling for a lost item and get stung by a scorpion while doing so.

We see from here that whatever protective power a mitzva has, it ceases to function once the mitzva is complete, even if one does a voluntary action that one would not have done had he not performed the mitzva.

Alternatively, Rav Nachman bar Yitchak suggests that the danger referred to is not that of scorpions but of his non-Jewish neighbor, who might find his actions suspicious and suspect him of practicing witchcraft against him.

The Gemara once again attempts to refute this with Rabbi Elazer’s principle that שלוחי מצוה אינם ניזוקין  and concludes that “היכא דשכיח הזיקא שאני” (where danger is “שכיח”  , it is different.)

The word שכיח  is the Aramaic equivalent of the Hebrew “מצוי”, literally translated as “found or present” but most often refers to “common.” (note that in a similar discussion in Yoma 11a, the phrase  (fixed)קביע הזיקא  is used, and as the same prooftext is brought, it seems that the two are equivalent at least to some degree.)

It follows that  where the danger is common (such as a non-Jewish neighboring accusing a Jew of witchcraft,) as opposed to danger that is real but less common (such as a scorpion being present in the hole at the time or stinging one when he puts his hands in) the principle  may not be relied upon.

We can now attempt to list a hierarchy of dangers, regarding the applicability of the principle of שלוחי מצוה אינם נזוקין .

  1. A situation with no significant danger (such as holes in the wall in a place where scorpions are hardly ever found.)- There is no need for this principle, and it is obvious that the mitzva must be fulfilled.
  2. A situation where there is some risk of danger, but it is a normal risk accepted in every day life  (Equivalent or similar to what Chazal call “דשו בו רבים”  in other contexts such as Shabbos 129b and Yevamos 12b- It is possible that  here too there is no need for this principle, and the mitzva must be fulfilled even without it, but it is also possible that in the absence of this principle, there would be no obligation to take the risk, even if its permitted to do so voluntarily.
  3. A situation where the danger is significant enough that one would normally avoid it in every-day life, but not in the category of “common.”

The principle would require one to take the risk for the sake of a mitzva.

  1. A situation where the danger is common ,the principle is not relevant, and one is exempt from the mitzva.

The above analysis, though already complex, deals solely with the question of whether one is obligated to take risks to perform mitzvot and not whether one is permitted to do so voluntarily, a topic for another discussion.

It also fails to tackle the actual meaning and mechanism behind the principle, and the fact that we see In front of us many cases where people have been harmed, even by freak occurrences, in  the performance of a mitzva  (see Kiddushin 39b for example re שלוח הקן)

We have to bare in mind the possibility that the principle is less a statement of fact, and more of a halachik principle (as well as a kind of hope, blessing or prayer), which defines certain types of risk that one would normally avoid as obligatory when it comes to performing mitzvot.

The sugya ends with Rav being asked whether his students who live far away in the valleys should risk harm in order to go early and come back late from the study-house.

His response was that he took the responsibility for any harm that comes to them on himself.

Once again, there are two possibilities for understanding what he meant:

  1. Rav admitted that some risk was involved, but was prepared to take responsibility for the risk, given the enormity of the mitzva of Torah study. Such a willingness to risk other people’s lives would certainly require further discussion.
  2. Rav believed that due to Rabbi Elazar’s principle, there was no risk at all, and they would not be harmed (see Rashi who seems to understand it this way!)

Whereas this explanation appears easier to understand ethically, it is harder to understand on a factual basis.

Although the Gemara does not elaborate on the level of danger that was involved in making this daily journey before dawn and after dark, it seems clear that it was great enough that people would normally be hesitant to risk it for non-mitzva related purposes, and despite that fact, Rav still encouraged them to come for the sake of Torah study and took the risk on himself.

It is also necessary to point out that the above analysis applies to an individual taking certain levels of danger on himself for the sake of a mitzva- none of these examples directly deal with endangering other people or the public in general for the sake of one’s own personal mitzva or Torah-study, or endangering the public for the sake of a public mitzva or public Torah study, though the above case of Rav and his students might come closest to this.

I do not intend to come to practical conclusions regarding the current situation from this analysis- there are far too many other sugyot to analyze  (see for example Yoma 11a which seems to include monetary risk in the exemption, Kiddushin 39b regarding שילוח הקן, Kesubos 77b regarding חולי ראתן, Sotah 21a regarding the מים המאררים ,as well as what might be a completely different approach to the entire idea of שלוחי מצוה אינם ניזוקין   in the Rambam and the Meiri)  and I leave this to senior Talmidei-Chachamim, but what seems certain from this sugya is that

  1. A certain level of significant risks that people normally try to avoid in their everyday lives wherever possible not only may, but MUST, be taken for the sake of mitzvot, even rabbinic mitzvot, and even more so for Torah study.
  2. There is a level of risk which may not be taken even for the sake of mitzvot.

Finding the balance between the above two levels of risk, is not simple, but is essential to make practical decisions in this and other situations.

Pesachim 5- 7 בל יראה ובל ימצא and the command of תשביתו

We have referred various times to the debate between Rashi and Tosfos on the first daf regarding the reasons for the requirement to search for chametz the night before Pesach.

Rashi explained that it is to avoid the prohibitions of בל יראה ובל ימצא.

Tosfos, in contrast, argued based on the Gemara (Pesachim 4b and 6b) that seeing as on a biblical level, בטול חמץ  is sufficient to remove it from one’s possession, AND בטול  is compulsory rabbinically, the search is not necessary to avoid these prohibitions and is rather a rabbinic requirement to avoid coming to eat chametz that one has nullified on Pesach.

On Daf 5, the Gemara analyzes the sources and parameters of these two related prohibitions and on Daf 6, it also records a debate amongst Tannaim as to how to fulfill the positive commandment of תשביתו (removing chametz from one’s possession.)

To make some order, let us summarize the various pessukim involved:

שמות פרק יב

(טו) שִׁבְעַ֤ת יָמִים֙ מַצּ֣וֹת תֹּאכֵ֔לוּ אַ֚ךְ בַּיּ֣וֹם הָרִאשׁ֔וֹן תַּשְׁבִּ֥יתוּ שְּׂאֹ֖ר מִבָּתֵּיכֶ֑ם כִּ֣י׀ כָּל־אֹכֵ֣ל חָמֵ֗ץ וְנִכְרְתָ֞ה הַנֶּ֤פֶשׁ הַהִוא֙ מִיִּשְׂרָאֵ֔ל מִיּ֥וֹם הָרִאשֹׁ֖ן עַד־י֥וֹם הַשְּׁבִעִֽי:

“For 7 days, you shall eat matzoth, but on the first day, you shall cease to have any seor (yeast) in your houses, as anyone who eats chametz will have his soul cut off from Israel, from the first day until the seventh day”

Here, we see a positive mitzva to remove all seor/chametz from one’s possession  before Pesach (the Gemara understands the “first day” here to refer to the day before Pesach, from midday and the word “but” to divide the day into two, half permitted to own chametz and half forbidden.

“Seor” refers to chametz that is no longer fit for a dog to eat but has turned into yeast which has the capability of causing other dough to become chametz.

שמות פרק יב

(יט) שִׁבְעַ֣ת יָמִ֔ים שְׂאֹ֕ר לֹ֥א יִמָּצֵ֖א בְּבָתֵּיכֶ֑ם כִּ֣י׀ כָּל־אֹכֵ֣ל מַחְמֶ֗צֶת וְנִכְרְתָ֞ה הַנֶּ֤פֶשׁ הַהִוא֙ מֵעֲדַ֣ת יִשְׂרָאֵ֔ל בַּגֵּ֖ר וּבְאֶזְרַ֥ח הָאָֽרֶץ:

“For seven days, seor may  not be found in your homes, for anyone who eats “that which leavens”, his soul will be cut off from the congregation of Israel, amongst the stranger and citizen of the land.”

Here, we see a prohibition to allow any seor to be found in one’s house over the Pesach period, as well as the severe punishment of כרת  for one who eats seor or chametz on Pesach.

There also seems to be a hint to the Ran’s suggestion (see earlier post on Daf 2) that the reason for this prohibition is indeed to avoid the serious penalty for eating it.

שמות פרק יג

(ז) מַצּוֹת֙ יֵֽאָכֵ֔ל אֵ֖ת שִׁבְעַ֣ת הַיָּמִ֑ים וְלֹֽא־יֵרָאֶ֨ה לְךָ֜ חָמֵ֗ץ וְלֹֽא־יֵרָאֶ֥ה לְךָ֛ שְׂאֹ֖ר בְּכָל־גְּבֻלֶֽךָ:

“Matzoth shall be eaten for these seven days, and no chametz shall be ‘seen for/to you’ and no seor shall be ‘seen for/to you’ in all your borders.”

Here, we see a prohibition against any seor or  chametz “being seen for you” in all one’s borders.

What precisely this means, requires clarification, and based on the simple reading, it could refer to

  1. A prohibition against seeing any chametz
  2. A prohibition against seeing any chametz that belongs to you
  3. A prohibition against having any chametz that is or could be seen by you
  4. A prohibition against having any chametz in one’s possession, the word “יראה”  not referring to literally being seen, but rather to “appearing before one/being present” (as in “ולא יראה פני ריקם” regarding עליה לרגל.)

דברים פרק טז

(ד) וְלֹֽא־יֵרָאֶ֨ה לְךָ֥ שְׂאֹ֛ר בְּכָל־גְּבֻלְךָ֖ שִׁבְעַ֣ת יָמִ֑ים…..

“and there shall not be seen to you any seor in all your borders for 7 days”

This seems to be a repeat (as is common in Sefer Devarim) of the prohibition against seeing seor on Pesach.

Based on the Gemara (Beitza 7b,) most of the Rishonim seem to understand that the prohibition against seeing chametz or seor is one prohibition applicable to both chametz and seor (see for example רמבם סה”מ לאו ר   and סמ”ג עז-עח but see also סמ”ק לד-לה who counts them separately!)

Similarly, the prohibition against owning chametz or seor is also seen as one prohibition.

However, the relationship between the prohibition against seeing chametz/seor (בל יראה)  and the prohibition against owning (בל ימצא) is more subtle.

Although they are counted by the Rishonim as two separate prohibitions (see for example Sefer haMitzvos 200/201) the Gemara understands that they share parameters, and whenever the one applies, the other applies as well.

For example, even if one owns chametz that is hidden from sight, one transgresses BOTH prohibitions, even though one does not see it.

In addition to this “double prohibition,” there is also a positive command of “תשביתו”, removing chametz from one’s possession before Pesach, which one transgresses on failure to do so.

There is so much to go into regarding this “double” prohibition and its related positive commandment and we shall hopefully get a chance to get to understand them a lot more over the coming daf- in the meanwhile, I hope that this brief summary will help clarify some of the basics.

Pesachim 4 Searching for Chametz with an electric torch

The first Mishna of the masechta told us that the search for chametz needs to be done the night before Pesach by candlelight.

On our daf, Rav Nachman bar Yitchak explains that the reason the search was instituted the night before and not the day before Pesach is because

  1. People are usually at home at night
  2. The candlelight is good for searching at night.

The second reason might be required in order that we should not think that people who are at home during the day should be allowed to intentionally do their search then- even for them, the search needs to be done by candle and a candle is not that effective at night! (see Ritva, Meiri, Rabbeinu Yonatan and other who make this point.)

 He does not explain, however, why one cannot simply search during the day by sunlight- The assumption seems to be that searching with a candle is an intrinsic part of the mitzva.

Whether one explains like Rashi that the reason for the search is to avoid the prohibition of owning chametz on Pesach or like Tosfos that the reason for the search is due to a concern that one might come to eat chametz on Pesach that one has nullified, it stands to reason that the mitzva is goal-oriented and the main thing is that the chametz is found- how it is found should be less relevant.

As such, while we can understand that regular sunlight might not be suitable enough to achieve this purpose, any form of light which is at least as good or better for this purpose should be perfectly acceptable.

Whereas a candle might have been the most suitable item for this at the time that Chazal instituted this practise, a good quality easy to handle electric torch certainly seems to be even more suitable.

Although the Gemara (Pesachim 8a) gives various reasons why a flame-based torch (made up of more than one wick) may not be used, none of those reasons seem to apply to an electric torch which is more flexible, safe, and stable than a regular one-wick candle.

Yet there is also the possibility that whatever the reason Chazal required a candle, they instituted the mitzva specifically with a candle, and once they did that, the only way the mitzva may be fulfilled is with a candle.

Rashi, on our daf, gives us a “heads-up” and tells us that the Gemara later on actually derives the requirement to use a candle from a verse, strengthening the possibility that there might be more to this requirement than meets the eye.

Fast forward to Daf 7b, and Rav Chisda, later supported by a Beraisa, indeed derives the requirement for a candle from a string of גזירות שוות (comparisons based on similar language) which indicate that a search should be done with a נר  (candle.)

The Beraisa points out that this is not an actual proof but a זכר לדבר (a form of hint) and given that the whole requirement of the search is דרבנן (rabbinical,) it seems rather obvious that this is at the most an אסמכתא .

Nevertheless, the fact that Chazal were not satisfied simply to provide a practical reason why a candle needs to be used but chose to base the requirement on an elaborate string of דרשות, does seem to indicate that there is something deeper about this requirement above the simple reasoning that they gave.

The sugya there, however, proceeds to tells us that one may not use an אבוקה (torch made by a collection of more than one candle), sunlight, or moonlight for the search, but must use a candle, seeing as it is יפה (nice or suitable) for the search, the same reasoning given back on our daf.

This seems to shift the focus back to practical reasoning, and the Gemara in fact immediately points out that an אכסדרה  (outdoor structure/porch with lots of sunlight) or area in the house directly under an ארובה  (skylight) may indeed be searched by sunlight, a seemingly clear indication that the candle is less an intrinsic requirement of the mitzva and more a matter of utility.

The reasoning seems to be that there is usually not sufficient sunlight indoors to perform the search properly, but there is enough sunlight to render the candle ineffective – As such, the search is done at night where the superior light of a candle can be used.

In areas where the sunlight is strong enough to replace the candle, this is not necessary.

The Rishonim  (see, for example the Ran based on the Yerushalmi) are bothered by this leniency, however, given that the search is supposed to be done at night, for the two reasons mentioned earlier, so when would one ever come to do it by sunlight .

They reply that the Gemara is merely saying that for one who was unable to search at night at the optimal time, and is then required to do so in the day, sunlight is sufficient in an area that is exposed to plenty of it- in a case where the mitzva is already being performed sub-optimally and the candle does not have much effect anyway, whatever special relevance the candle has in the mitzva is outweighed by the superior impact of the sunlight.

Once we have admitted that this is already not the ideal way of doing the mitzva, the possibility again opens up that not only is the night an ideal component of the mitzva, but so is the candle itself, and that when the mitzva can be performed with a candle, even if there is an equally effective way of doing so, the candle should still be used!

Of course, even if this true, there is still room to argue that an electric light is considered to be a candle, at least for the purposes of this Mitzva, particular the original type with incandescent bulbs that actually burn (as opposed to fluorescent bulbs and modern day LED’s which do not.)

Although we have only come to study and raise the issues and not make halachik rulings, those interested in following up will note that some modern poskim seem to hold that the mitzva can indeed be fulfilled with an electric torch with a focussed light.

Some even seem to favor this as the concern for fires is lower and a more focussed search will thus result, but general practise seems to be to follow the longstanding custom of using a candle where possible, and amongst some, such as Chabad Chasidim, this is taking extreme seriously for more mystical reasons, which we have seen might indeed be at least hinted at in our 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.

Pesachim 3 The trade-off between clean and clear language

On the previous daf, the Mishna told us that we need to search for chametz by the light of a candle on “אור לארבעה עשר” [ lit: “the light of the 14’th.]

One of the first פסוקים  (verses) we learnt as children tells us how Hashem created “אור”  [“light”]  on the first day, called it “יום” [day], and called the “חושך”  [darkness], “לילה” [ night.]

As such, our first assumption when reading this Mishna would be that we need to search for Chametz during the day, or perhaps at first light, of the 14’th, i.e. the day before Pesach.

Yet, far from taking it for granted, the Gemara asks what “אור” is referring to, and brings a debate between Rav Huna, who says it is referring to “נגהי”  (Aramaic for “light”] and Rav Yehuda, who says that it is referring to “לילי” (Aramaic for night.)

Seemingly unbothered by the apparent bizarreness of Rav Yehuda “translating” a word “everyone” knows means “light” as “night-time”, the Gemara initially assumes that at least  Rav Huna holds that the mishna is referring to day-time, as would be our natural assumption.

Yet after bringing an array of פסוקים  that all seem to use the word “אור”  to refer to day-time, and offering seemingly forced alternate explanations of all them in a way that the word “אור”  itself might still refer to night, it brings various examples of usage in משניות  and ברייתות where the word clearly seems to refer to night.

Clearly choosing the later over the most obvious usage in the pessukim, the Gemara concludes that even Rav Huna agrees that the Mishna refers to night-time, but explains that in his town, the word “נגהי” was also used to refer to night-time.

Seeing as we are dealing with the usage of words by Chazal, it is not surprising that the Gemara chooses examples of its usage from Chazal over the simple meaning of its usage in the scriptures, but given that Chazal do sometimes use language differently to the scriptures (see for example B.M. 2a re “ראיה”), it seems strange that the Gemara feels the need to explain the פסוקים in a way that is consistent with their usage- perhaps the Torah simply uses “אור”  in its literal usage to describe light or day, and Chazal use it as a reference to “night”, for whatever reason?

The Gemara concludes that the reason why the Mishna (and by implication other statements of Chazal) use the word “אור”  in place of “חושך”  or “לילה” is in order to make use of “לישנע מעליה”  (lit. “superior language.”)

It bases this on Rabbi Yehoshua ben Levi’s ruling that a person should never let a “דבר מגונה”- “degrading word” came out of his mouth.

This ruling is in turn based on the fact that Torah added 8 extra letters, despite the golden rule that it NEVER wastes letters or words, in order to replace the phrase ” בהמה טמאה” (impure animal )  with  “בהמה אשר איננה טהורה” (“ an animal which is not pure.”

This proof is followed by others from different Amoraim.

The school of Rabbi Yishmael then brings a similar rule requiring people to always speak with “לשון נקיה” (clean language.)

This is based on the fact that whereas something that a זב  (male impure due to an unusual emission) rides on (and thus becomes impure) is referred to as מרכב הזב (lit. something the זב  rode on), the equivalent by a woman is referred to as “מושב”  (lit. something she sits on.)

Rashi explains that seeing as riding an animal involves spreading one’s legs out to a degree, something normally considered immodest for a woman, the Torah prefers to use the more modest sounding “מושב”

They then bring another two verses to substantiate their claim, which the Gemara understand come to teach us that not only does the Torah, due to its extra sanctity, go out of its way to use clean language, but Chazal were also expected to do so.

Furthermore, not only are the Rabbis due to their stature required to do so, but one is required to do so in every day talk as well!

Perhaps this could explain why the Gemara was not satisfied to simply take the verses that refer to “אור” at face value and explain the Mishna on the basis that Chazal use the word differently.

In the case in Bava Metzia, Chazal might have  used the word “ראיה”  in the every day sense as in “seeing” even though in the language of the Torah, it usually implies “דאתיא לידיה” – something that comes into one’s hand.

However,  the idea that the Torah would never be concerned about using ‘clean language” and Chazal would be was not something the Gemara could consider, as we have seen that the greater sanctity of the Torah should make it more concerned about such things, not less so!

As such, the Gemara needs to go out of its way to show that the Torah could also have used the word “אור” in place of night, and the places where it means “light” literally can be explained in other ways.

Yet in truth, it is hard to say that words like “night” and “impure” are examples of such unclean language, and as the Gemara itself points out, the Torah itself often uses such words such as “טמא”

The Gemara thus qualifies the requirement to use “clean language” to a situation where the clean language is just as short and concise as the “less clean” alternative, in keeping with the dictum of Rav that a person should always teach his students with  concise language.

The clarity of concise language usually thus takes priority over being particular over “clean language,” at least regarding talking to one’s students.

If so, how do we explain the fact that in the examples brought earlier, the Torah indeed added extra letters in order to make use of “clean language?”

Rashi explains that this was an exception the Torah made in order to teach us the importance of using clean language wherever possible, and Tosfos adds that had the Torah not done so in that case, we would not have known that we need to be particular about using clean language in cases where it does not affect the concise nature of the statement.

The incredible implication of this seems at face value to mean that if it was not for this special exception the Torah made, we would think that using “unclean language” even for no justified reason is acceptable?

Is it possible that bad language, of which it is said “כל המנבל את פיו מעמיקים לו גהינום”   (one who dirties his mouth gets a deeper spot in hell- Shabbos 33a) would be acceptable had it not been for this unusual exception made by the Torah?

It seems to be that we need to differentiate between truly dirty language and words like “night”, “impure” ,and “riding” (in the context of a woman) that can hardly be said to be objectively dirty or rude.

It might go without saying that the former has to be avoided in all but perhaps the most extreme or necessary cases, if at all (objectively “dirty” language is found even in Tanach in reference to idol-worship for example- see Sanhedrin 63b  “ליצנותא דע”ז.)

The later, however, is part of everyday language that often cannot be avoided.

So important , however, is the sanctity of one’s speech, that even remotely negative words should be avoided wherever possible, and the Torah breaks its golden rule of never using unnecessary letters that once in order to drive home this essential point (see  ר”ן ד”ה “לישנא מעליה”  who seems to take this approach.)

Negative language inevitably leads to negative thoughts and actions, and although the Torah doesn’t avoid negative statement where absolutely necessary to make a point, as the ultimate “לקח טוב”  (good gift or teaching,) positivity is at its core, and should be at ours as well!

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.

Pesachim 2 Bedikat Chametz and the biblical fence

The opening Mishna of Pesachim introduces the mitzva of בדיקת חמץ  (searching for Chametz) before Pesach.

The mishna tells us that אור לארבעה עשר בודקין את החמץ לאור הנר.

After much debate on this and the next daf, the Gemara concludes that אור לארבעה עשר refers to the evening of the 14’th of Nisan, and that the evening is referred to as אור  (literally light) in order to use לשון נקיה (clean language,) something I hope to discuss in tomorrow’s post.

As such, the Mishna is understood to mean that on the evening BEFORE Pesach starts, we need to search for any chametz with the light of a candle.

The reason for this search is subject to debate amongst the Rishonim.

Rashi explains that it is to avoid the prohibition of בל יראה ובל ימצא (owning chametz on pesach- see Shmos 12/19 and 13/7), and the Ran seems to understand that it is also connected to the positive mitzva of תשביתו (removing chametz from one’s possession- see Shmos 12/16.)

By searching for any remaining chametz in the house and burning it the next day, we make sure to avoid this prohibition (and fulfill the positive mitzva.)

It seems to follow that Rashi considers this to be a חיוב דאורייתא  (biblical requirement) due to the prohibition of owning chametz.

The Tosfos famously take issue with this based on a later sugya (Pesachim 6b) where Rav Yehuda rules in the name of Rav that one who has searched also needs to perform בטול חמץ  (nullify the chametz in his heart.)

Seeing as this is a requirement in any case, and מדאורייתא בבטול בעלמא סגי ליה (on a Torah level, annulment is enough to avoid the prohibition of owning chametz-Pesachim 4b), they dispute what they understand as Rashi’s claim that the search is necessary in order to avoid this prohibition. Indeed, the Gemara itself there states that בדיקת חמץ  is only a rabbinical requirement!

Instead, they explain that this a rabbinic requirement in case one sees chametz on Pesach that he has already annulled and comes to eat it- the prohibition of eating chametz carries the severe penalty of כרת and applies to all real chometz whether one owns it or not.

Whereas the Tosfos clearly saw Rashi as claiming that the search is NECESSARY in order to avoid the prohibition of owning chametz, it is possible to understand him simply as saying that the search is a legitimate and possibly preferable way of avoiding the prohibition- one can do so without it by nullification, but seeing as the search takes place first, in practise it has also removed any concern of this prohibition by the time the nullification comes along.

This is how Rishonim such as the Ran understand Rashi: The Torah requires the end result that we do not own chometz on Pesach, but Chazal determined how we get to that result, and due to the severity of the prohibition and the need to cover all bases, they required us to go through two processes- search and destroy, and nullification.

The Tosfos, on the other end, seem to hold that there was no need for Chazal to institute two methods to remove chometz from one’s possession, and that seeing as they made nullification mandatory, they must have required the “search and destroy” operation for other reasons. )It should be noted though that whereas the requirement to search is recorded in the Mishna, the requirement  to perform בטול is only recorded later in the early Amoraic period  by רב יהודה אמר רב, making this argument seem problematic unless the requirement for בטול  also goes back to the time of the Mishna and Rav was simply recording it, something that requires evidence.)

According to this view, one needs to understand why Chazal were so concerned about us coming to eat chametz that they required us to search for it and destroy it?

After all, there are many other things we are forbidden to eat or even benefit from, and Chazal made no such requirement.

The Tosfos suggest that this is because of the severe penalty prescribed for one who eats חמץ,  but are still faced with the fact that eating certain other foods such as חלב (forbidden fats) is also subject to the same כרת  punishment.

As such, they add another factor to explain this special stringency, namely the fact that chometz is something which people are not used to avoiding, given that it is permitted the rest of the year, and in addition to the severity of the penalty for doing so, this was enough reason for Chazal to set this prohibition apart from others and require search and destroy.

They also suggest that Chazal treated chometz more seriously than other prohibitions because the Torah itself did so- It is the only food subject to a ban of eating and benefitting from which is also subject to a prohibition against owning.

The simplest explanation of this idea is that  the fact that the Torah prohibited even owning chometz shows us that this prohibition is to be taken even more seriously than others- Chazal followed this queue and imposed the obligation to search and destroy in addition to nullifying it.

The Ran (דפי הריף א. ד”ה “ומה” ) is even more explicit and suggests that the reason the Torah itself forbade owning Chometz on Pesach was because people are not used to refraining from eating it the rest of the day, and combined with the severity of eating it on Pesach, the Torah took extra precautions to prevent this.

This idea is rather novel in that it would be a rare example of the Torah creating its own fence to protect another Torah commandment, something usually the mandate of Chazal.

  This is not completely without precedent- the אבות דרבי נתן  (chapter 2) understands that the Torah made a “fence” around the prohibition of forbidden sexual relations such as Niddah by prohibiting  קירבה(coming near) -sexually arousing acts such as hugging and kissing are thus forbidden on a Torah level as a restraint against sexual acts themselves.

Although the Ramban (השגת לספר המצוות לאו שנג), based on the view of רבי פדת (Shabbos 13a) understands this to be an אסמכתא  and the prohibition of “coming near” to be rabbinical in nature, the Rambam (ספר המצוות לאו שנג)  takes this literally and holds that it is a Torah prohibition punishable by lashes.

If we accept the Ran’s reasoning regarding בל יראה ובל ימצא and the Rambam’s regarding קרבה, the common denominator is clear- both eating chometz on Pesach and forbidden sexual relations are extremely serious prohibitions punishing by כרת, both are unusually hard to avoid (chometz because of habit and עריות  because of the power of the libido) and both have “satellite” biblical prohibitions to keep us far away from them!

If the Torah itself singled out these prohibitions by making its own biblical fences around them, and Chazal themselves followed with fences of their own, how careful should we all be to stay as far away as possible from them.

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 105 Intellectual honesty opposed to a philosophy of leniencies

This short daf deals with various work needed for the maintenance of the מקדש , to remove impure items from it, and how and by whom it should be done.

This is based on a debate in the concluding Mishna of the Masechta regarding how to remove a dead שרץ  (creeping creature/bug) from the Temple.

The Masechta ends, however, by focusing on a rather cryptic statement in the final Mishna by Rabbi Shimon: מקום שהתירו לך חכמים משלך נתנו לך שלא התירו לך אלא משום שבות – “The place where the sages permitted it to you, they gave you from your own, as they only permitted it because of a rabbinical prohibition.”

Whatever the meaning of this statement, we might instinctively think that it has something to do with the debate in this Mishna itself.

Yet the Gemara understands this as a flashback to two other debates that Rabbi Shimon was involved in:

  1. Although the Chachamim hold that even if one stepped one אמה outside the תחום  (shabbos zone), it is forbidden to return, Rabbi Shimon allows a leeway of up to 15 אמות  because the people who measure the תחום  do not do so precisely and leave a safety net of this distance inside the תחום.

The first part of his cryptic statement thus reads:

“That which they (according to me) permitted you, ie 15 amos, was really yours to begin with, due to the safety net made by the measurers.”

  • Although Chachamim permitted retying a string that came loose on a musical instrument required for the Temple service, due to the rule of אין שבות במקדש , Rabbi Shimon forbade it, seeing as he held that this is a biblical prohibition, and only permitted tying it with a bow.

The second part of his cryptic statement thus reads:

“They only permitted  tying a bow which is a שבות, not tying a knot which (according to me) is a biblical transgression.

Rashi and Tosfos both explain that Rabbi Shimon makes these statements here because they are connected to his ruling regarding the string of an instrument.

Tosfos adds that this discussion was interrupted by listing the other things permitted because אין שבות במקדש  (there are no rabbinical prohibitions when it comes to Temple service) and Rabbi Shimon is now returning to explain his position there.

They both explain that Rabbi Shimon is going out of his way to stress that his leniency regarding the תחום  was not due to his taking shabbos lightly and a general policy of leniency, but because he felt it was objectively the correct ruling, seeing as the safety net was intentionally placed for that reason.

In contrast, when  it comes to making  a knot, he believed that a biblical prohibition was involved and only permitted a bow, in keeping consistently with the rule of אין שבות במקדש, even though the Chachamim were lenient.

Although both Rashi and Tosfos explain the positioning of Rabbi Shimon’s “clarification” of his approach based on the recent placement of the late dispute, it seems fitting that the Maseches concludes in this way.

After all, as we have seen so many times, Eruvin is not just about the technical and specific laws of Eruvin, but also about the power of rabbinical decrees as a whole and many global rules of psak halocho.

We have seen many leniencies when it comes to rabbinic decrees, such as ספק דרבנן לקולא, אין שבות במקדש, אין גוזרין גזירה לגזירה etc , as well as many exceptions to these rules.

Rabbi Shimon, in particular, is known for many leniencies in the rules of Shabbos, among them דבר שאין מתכוין מותר, מלאכה  שאינה צריכה לגופא פטור, לית ליה מוקצה,  גגות חצירות וקרפפים רשוצ אחת הן,  כתבי קודש  etc.

However, as we discussed early in the Maseches (see post on Eruvin 7,) halacha ideally should not be about having a philosophy of leniency or stringency, but rather about searching for the objective truth.

It is so fitting that such a Masechta should end with no other than the “lenient” Rabbi Shimon clarifying his position that his leniencies do not flow from any זלזול (making light of) the laws of Shabbos, chas veshalom, but from his objective view of the truth in each case.

Just like he was lenient so often in cases where he believed the truth required leniency, he was not afraid to be stringent against consensus when he felt that the truth required it.

Although a poseik might often be required to take local circumstances or even “meta-halachik” factors into account when issuing rulings, Rabbi Shimon, forever the idealist, seems to be teaching us that the ideal derech of a poseik and Talmid Chacham, namely intellectual honesty and objectivity, must never be forgotten.

הדרן עליך מסכת עירובין והדרון עליך

Its been an incredible journey, and we will miss you, as we temporarily move on to exciting new territory with Maseches Pesachim, Hashem willing, truly inspired and looking forward to the next round!