Eruvin 37 and 38 Yiftach’s daughter and ברירה

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

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 2 Introduction, Technical measurements and clean language.

I was discussing my daf posts with my friend and colleague, Rabbi Matthew Liebenberg of Claremont Shul, Cape-Town, and he tried to warn me that keeping up the pace and variety of posts will be much more challenging when we get to Eruvin, which is known as a particularly complicated and technical masechta.

Though I could not deny that I share a degree of concern, I replied that Eruvin is actually one of my “favorite” tractates, assuming it is possible or appropriate to say such a thing. In addition to being filled with fascinating and extremely practical rules essential to understanding the practicalities of Eruv building, something almost all of us need to know, it also contains many general ideas and topics that apply to all of Torah holistically.

This combination of material typical of the Gemara can be found right here on the first daf as well.

The thrust of the first daf deals with the technical requirements for a quiet side-street or alley to be considered a private domain on Shabbos.

The typical neighborhood in the times of Chazal (as can still be seen in some older neighborhoods of Yerushalayim) consisted of a מבוי – a short and narrow side-street or alley which opened to the main public thoroughfare on 1 or 2 sides.

Various חצרות (courtyards) opened to this central מבוי and each courtyard had houses that opened to it.

מדאורייתא ( at a biblical level,) any area enclosed on 3 sides (the exact number of sides/partitions is subject to debate later) was considered a private domain, and carrying within it was permitted.

As such, as far as biblical law is concerned, it is permitted to carry from one house to another within the courtyard, from one courtyard to another within the common מבוי , or within the courtyards or מבוי , so long as the מבאי is only open on one side to the public domain.

If the מבוי is open on two sides to the public domain, it is more complex, as the מבוי itself could be considered part of it.

Our Mishna and sugya deals with a מבוי that is closed on 3 sides and only open on one side to the public domain.

We see later that there is a rabbinical requirement to symbolically mark or enclose such a מבוי with either a pole on one side, or a beam going from one side to the other (there is some debate about these precise requirements as well.)

Our Mishna focusses on the maximum height that this pole or beam may be, as well as the maximum width of the open side, and rules that if they are higher than 20 amos (arm-lengths/cubits) or wider than 10 amos respectively, they need to be lowered or narrowed.

Rabbi Yehuda disagrees and says there is no such requirement.

It is unclear from the Mishna whether Rabbi Yehuda holds that the fourth side can be of infinite height or width, or whether he too places a limit on this, but simply a higher or wider one, but it would seem that if the later is correct, one could have expected him to say what this limit is.

The Gemara notes that a similar maximum height is discussed regarding a Sukkah (Sukkah 2a,) but the language used there is different.

Whereas in our case, we are told that a מבוי that is too high needs to be lowered, regarding Sukkah, we are simply told that it is פסול (invalid.)

As in both cases, lowering it is both compulsory and effective, the difference in language needs to be explained, and the parallel sugya in sukkah asks the very same question and gives the very same answers.

Two answers are given :

  1. Seeing as the Sukkah is דאורייתא (biblical,) the Mishna uses the word “invalid.” As the pole or beam of aמבוי are only rabbinical requirements, the mishna simply tells us the תקנתיה (solution.)
  2. The later language is also appropriate in theory for the biblical requirement of Sukkah, but seeing as a Sukkah has multiple constraints, each requiring a different solution, the Mishna chooses one word that applies to all of them, for the sake of brevity. Rashi explains that this is based on the principle (Pesachim 3b) that one should always teach one’s students using concise language.

There are various approaches in the Rishonim as to how to understand the first answer.

Rashi seems to understand that when the Gemara contrasts the biblical Sukkah with the rabbinical מבוי , it is not referring to the actual requirement of dwelling in a Sukkah or putting a pole or beam on a מבוי, even though the distinction certainly applies to that as well, but to the maximum height of the Sukkah and the מבוי.

We derive the maximum height of a sukkah from a verse in the Torah: למען ידעו דורותיכם כי בסוכות הושבתי את בני ישראל (“So that your generations will know that I placed the Jewish people in sukkot” -Vayikra 23/43.)- the Sukkah has to be low enough for the roof to be noticed.

As such, this requirement predates the writing down of the mishna by far, and it is appropriate to say that it is already invalid.

In contrast, the requirement to mark a מבוי with a pole or a beam itself is only rabbinical and its maximum dimensions are also. Seeing as the Mishna is the first to teach us these maximum dimensions, it is not appropriate to label the מבוי as already invalid but only to tell us how to solve the issue from the beginning.

This explanation has various difficulties, but I shall not dwell on them in this post.

Tosfos understands the answer a little differently- Due to the strict biblical requirements of sukkah, we are concerned that using a softer language would make us think that the requirement to fix it up is only לכתחילה (in the first place,) but if one sat in the sukkah without making these corrections, one would fulfill the mitzva still בדיעבד (post-facto.)

As such, the harsher language is preferred.

In the case of Eruvin, seeing as the requirement is only rabbinical, we are less concerned that a person might make this error, and we choose to use the softer language, in keeping with the principle (Pesachim 3a) that it is always best to use לישנא מעליה (positive language ) where possible.

We see that there are 3 principles at work here, which sometimes need to be traded off against each other, and it is fascinating to note that both Rashi and Tosfos refer to the same sugya in Pesachim which discusses 2 of these principles and the trade-off between them, but for completely opposite purposes.

  1. Language needs to be נקיה (clean), and that doesn’t just mean avoiding foul language but specifically choosing לשון מעליא (positive language.)
  2. Language needs to be concise (probably to make it easier to comprehend and remember.)
  3. Language needs to be clear or strong enough to convey the historical timeline of the law (Rashi) or the stringency of the law (Tosfos)

According to the first answer in the Gemara, the third factor over-rides the first factor, and strength of message over-rides the need for positive language.

According to the second answer in the Gemara, either positive language still takes priority over strength of message, or the positive language given is still considered appropriate or strong enough to give over the importance of the message.

However, the second factor certainly takes priority over the first, and concise direct language is preferred over positive language, as is indeed the conclusion of the above-quoted sugya in Pesachim.

There is lots more to say about the requirements for language to be clean, concise, and strong enough and how they trade-off with each other, but we have certainly seen on this first daf how the Gemara is able to focus on the one hand on specific and technical rules relating to the subject at hand, and at the same time teach us multiple principles that could apply to every aspect of our lives!

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.

Shabbos 150-151 לפני עור, work done by a non-Jew on shabbos, and שבות דשבות re-examined

On the previous daf, the Mishna taught us that it is forbidden to hire workers on shabbos or to ask one’s friend to do so on one’s behalf.

Although hiring workers does not involve any specific melacha as such, Rashi explains that it goes against the passuk in Yeshayahu (58) which tells us to honor the shabbos and refrain from weekday activities and discussions, namely a “rabbinic” prohibition.

The Gemara ask why it is necessary to forbid asking one’s friend to do so- after all, he is equally obligated in the laws of shabbos!

Rashi understand that because he is equally obligated not to engage in weekday conversation, telling him to do so goes under against the prohibition of “putting a stumbling block in front of the blind,” interpreted by chazal among others things to refer to causing someone to sin)A.Z. 6b.)

It requires some analysis to determine whether one can transgress the biblical command against causing someone to sin by causing him to do something that is only rabbinically prohibited.

It could be argued that a rabbinical sin is not a stumbling-block on a biblical level and one can thus not transgress this prohibition if the sin one causes him to do is only rabbinical in nature.

On the other hand, one could argue that the prohibition is not specifically against causing someone to sin on a biblical level, but on putting a stumbling block in front of him on any level, and a rabbinical prohibition, once forbidden by Chazal, is certainly a stumbling block.

The irony would then be that hiring workers oneself on shabbos might only be a rabbinical prohibition but asking one’s friend to do so would be a biblical prohibition!

The way Rashi understands our Mishna seems to be a proof for this later understanding as he says explicitly that asking one’s friend to hire workers involves the prohibition of putting a stumbling block in front of the blind.

Whether the Gemara itself is a proof for this depends on whether there are any other legitimate ways of explaining why this should so obviously be forbidden.

It is of course possible that Rashi means that he transgresses the prohibition of “putting a stumbling block before the blind” on a rabbinic level, but we would need some precedent for such a thing for this argument to be convincing.

There are indeed times when chazal refer to transgressing a biblical prohibition and mean it on a biblical level (see for example Rashi Sanhedrin 82 regarding נשגז )but for Rashi to claim that this is such an example without saying so explicitly would seem unusual.

Perhaps the act of telling one’s friend to hire workers itself goes against the prohibition of weekday conversation?

However, this is not likely, seeing as the Gemara answers that the Mishna is needed to tell us that even asking a non- Jewish friend to do so is forbidden.

It answers that we already know that too, as it falls under the shvus (rabbinical prohibition) of אמירה לנכרי (asking a non-Jew to perform a forbidden melacha on shabbos.)

If telling someone else to engage in a weekday conversation was also considered weekday conversation, there should be no different between asking one’s Jewish friend or one’s non- Jewish friend


If yesterday we dealt with the general prohibition against telling a non-Jew to do melacha on shabbos, today’s daf deals with work which a non-Jew has done on his own initiative on shabbos.

The rule of the Mishna and accompanying Gemara is that if he performed it for his own benefit or for that of another non-Jew , one may benefit from it, whereas if he did it for a Jew, one may not.

The Mishna gives an example of a non-Jew who brings a reed-based wind instrument on shabbos to play during the eulogies for a Jew who died and is to be buried after shabbos.

It rules that it may only be used if it was brought from inside the techum (area in which walking is permitted on shabbos.

It then discusses a case where a non-Jew dug a grave or made a coffin on shabbos and It is now wanted for burying a Jew after shabbos.

It rules that if it was done for a non-Jew, it may be used for a Jew, but if it was intended for burying a Jew, he may not ever be buried in it.

The general rule coming out of the Mishna seems to be that it is permitted to benefit from a melacha done by a non-Jew on shabbos only if the non-Jew did it for himself or another non-Jew.

If he did it for a Jew, even without being told to do so, it may not be used.

The question is for how long it might not be used: in the first case of the reedpipes, the Mishna does not say that they may not ever be used again for a Jew (though see Rashi who does make this assumption.)

Yet in the second case of the grave/coffin, it says that they may never be used, at least for the Jew they were made for.

Perhaps the distinction lies in the fact that walking outside of the techum is only a rabbinic prohibition according to the view of this Tana (this is a dispute in various places, see Beitza 36: for example.)

On the other hand, making a coffin or grave is a biblical prohibition.

If this distinction is correct, we would conclude that if a non-Jew performs a biblical melacha for a Jew on shabbos, he may never benefit from it, but if he only performed a rabbinic prohibition , he may do so.

However, the assumption that the non-Jew who brought the reed pipe from outside the techum has only performed a rabbinically forbidden act is highly problematic for various reasons.

  1. Even if walking from outside the techum is only rabbinically prohibited, carrying an item from outside also involves the biblical melacha of הוצאה ( transferring something from one domain to another.) – If there was an eruv, there would not be an issue of the techum either.

One could answer that the Mishna is dealing with something brought through a non-built up area that is not defined as a private or public place , but a כרמלית, which too is only a rabbinical prohibition, but one would still be faced with the question why the important factor is whether it came from outside the techum and not whether a biblical or rabbinical melacha of carrying was performed. The Tosfos and other Rishonim deal further with this issue., but I will move on.

  1. We have learnt many times that according to most views, it is permitted to ask a non-Jew to perform an act that is only rabbinically forbidden on shabbos for the sake of a mitzva (שבות דשבות לדבר מצוה) .

We have seen that some later authorities understand that this principle even permits a Jew to himself perform an action that is only rabbinically prohibited for 2 independent reasons for the sake of a mitzva.

If so, seeing as the instrument is being used for the mitzva of כבוד המת (honoring the dead,) a truly great mitzva, and leaving the techum is only rabbinically forbidden, surely it would have been permitted to ask the non-Jew to bring it lechatchila on shabbos to avoid delaying the burial afterwards?

It is true that the Tosfos are of the view that this principle does not apply to any mitzva, but only certain special mitzvas mentioned explicitly such as circumcision and settling the land of Israel, and this could be a proof for this view, but this not the view of most authorities including the Rambam.

  1. In any case, the distinction we suggested between biblical and rabbinical melacha performed by a non-Jew would not survive the Gemara’s discussion of this Mishna.

The Gemara, for a different purpose ( establishing the law in a case where it is not certain if the non-Jew performed the melacha for a Jew or a non-Jew ) compares this to a different case, where a bathhouse is heated by a non-Jew on shabbos for whoever comes.

The ruling in that case is that if the bathhouse is in a place with a non-Jewish majority, we assume that it was heated for non-Jews and a Jew may bath there immediately after shabbos.

If the majority or even half the people the bathhouse serves are Jewish, then a Jew must wait כדי שיעשה (the time it takes to heat the bathhouse) after shabbos before using it.

Heating the bathhouse clearly involves at least one biblical melacha, lighting the fire and perhaps heating the water, depending on the temperature it reaches, yet the prohibition to use the bathhouse is limited to the period of כדי שיעשה and not forever.

Perhaps the real distinction lies in who the object of the forbidden action is going to serve. In a case where the non-Jew had a specific Jew in mind as the beneficiary of his actions, such as the case of the grave or coffin, that Jew may never benefit from his action.

On the other hand, other Jews, may benefit from it after the period of כדי שיעשה, and in a case where he had no specific person in mind, like the bathhouse and possibly the reed-pipes, any Jew may benefit from it after the period of כדי שיעשה .

These issues form the subject of long and major discussions in the Rishonim before the final halacha is determined- I have just come to take you through a preliminary analysis I have done on my own, in order to open the subject for further study.

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.

Shabbos 149 Gambling in Halacha and opening function-halls during the Corona Crisis

The Mishna at the bottom of 148b tells us that it is permitted to cast lots with one’s family members on Shabbos to see who gets which portion, which will presumably prevent fighting over them.

I happen to be particularly sensitive to my children fighting over food portions, and am rather strict in insisting they avoid doing so, after all is it really fitting for thankfully relatively well-off children to be fighting with each other over who gets the thicker piece of salmon when so many people are hungry?

It is appropriate behaviour for frum children in the first place, even if they are relatively poor?

Yet this seems to be an old problem amongst kids and Chazal took a realistic view to dealing with it- rather than ignoring the problem or tackling it head on, they suggested a simple fair solution.

However, despite the lofty goal of keeping peace in the home, the Mishna attaches a key condition- one may not intentionally make one portion larger than the other and draw lots on the larger portion- one has to at least attempt to make the portions equal.

The Gemara rules that drawing lots on different sized portions is forbidden even during the week because of קוביא (gambling.)

The Mishna (Sanhedrin 24b) includes a gambler in the list of people who are unfit to be witnesses.

Rabbi Yehuda comments that this is only the case when the gambler has no other trade/profession other than gambling.

It is not immediately clear whether Rabbi Yehuda and the Chachamim disagree on this point, or whether Rabbi Yehuda is simply clarifying the position of the Chachamim.

The Gemara asks what issue the Mishna has with a gambler, and 2 opinions are given:

  1. Rami bar Chama explains that gambling is a form of אסמכתא (a transaction based on incorrect assumptions) which are not valid.

He seems to argue that when a person gambles, he is convinced psychologically that he will win, and it is on that basis that he agrees to the terms of the bet/lottery.

Although this might seem far-fetched, this is particularly common with habitual gamblers whose addiction keeps pushing them to try “one more time.”

When he fails to win, the transaction is invalid, and the winner is considered a form of thief if he takes the money.

Rav Sheishes disputes this ruling and holds that such a transaction is not a valid example of אסמכתא seeing as the gambler is still fully aware that he might lose and chooses to take the chance.

He explains that the reason the gambler is not fit to testify is not because he has committed a form of theft, even at a rabbinical level, but because he isn’t עוסק בישובו של עולם (he does not busy himself with “settling” the world.)

This fits in with Rabbi Yehuda’s view in the Mishna that only a gambler who has no other profession is unfit to be a witness.

According to this view, while gambling might not be a prohibited act as such, it is a non- constructive profession that does not help build society in a positive way.

A person who does not engage in a constructive profession is simply not a trust-worthy witness, perhaps because he does not take people’s needs and property rights seriously enough.

There is much to analyze and debate, both in the text of the Gemara and in the Rishonim, regarding the scope of both אסמכתא and ישובו של עולם , as well as the reason and nature for the gambler’s disqualification as a witness, but we will focus for now on what appears to be the most simple interpretation of the debate:

According to Rami bar Chama, and the Chachamim of the Mishna according to his view, anyone who gambles is unfit to be a witness as he is a form of thief.

According to Rav Sheshet, and Rabbi Yehuda in the Mishna, only a professional gambler with no other profession is unfit to be a witness- in contrast, the casual gambler has done nothing wrong and is certainly fit to act as a witness.

Back to our sugya in Shabbos, it seems that our Gemara holds like Rami bar Chama that gambling is indeed forbidden even if one has another profession.

As it is usual in case of a debate in one sugya where the סתמא דגמרא (undisputed assumption or ruing) in another sugya supports one side , it thus seems appropriate to rule like Rami bar Chama and forbid even casual gambling, as well as disqualify the casual gambler from being a witness, until he has repented and stopped gambling.

Furthermore, a different Mishna (Rosh haShana 22a) gives a similar list of people who are invalid as witnesses, and does not record the lenient view of Rabbi Yehuda- the Gemara there understands that they are all forms of rabbinical theft, which seems to support the view of Rami bar Chama as well.

This is indeed the way the Rambam (Gezeila veaveida 6/10, Mechira 21/3) appears to rule (though compare Eidus 10/4 and Shabbos 23/17) and the Shulchan Aruch (C.M gezeila 370/1-3) is also generally understood to take this view.

However, based on the continuation of the sugya in Sanhedrin, it is clear that some Amoraim are of the view that Rabbi Yehuda and the Chachamim agree that casual gambling does not disqualify one from testifying, and even though Rami bar Chama disagrees, there is some logic in following those Amoraim who do not see the Tannaim of the Mishna as arguing, particularly as both Rabbi Yochanan and Rabbi Yehoshua ben Levi take that view.

This is the way that the Tur and the Rema rule, essentially making normative Ashkenazi halacha more tolerant of casual gambling- interestingly enough, the Rif also takes this lenient view, and it is somewhat surprising that the Shulchan Aruch rules like what is really an ambiguous Rambam against a clear Rif and Tur.

However, there is another way to reconcile the sugya in Shabbos that forbids casual gambling with the view of Rav Sheishes in Sanhedrin who says that it is not considered אסמכתא and does not disqualify one from being a witness.

We could suggest that even Rav Sheishes agrees that casual gambling is rabbinically forbidden. However, he holds that it is not enough of a sin to disqualify one from being a witness.

Instead of rejecting the prohibition of casual gambling completely, Rav Sheishes’ statement would then simply be interpreted as pointing out that it does not qualify as אסמכתא on a biblical level.

He could thus still hold that only a professional gambler with no other profession is included in the Mishna’s disqualification, without permitting casual gambling.

If we learn like this, our sugya in shabbos could also work according to Rav Sheishes- casting lots on different sized portions is indeed a form of gambling and rabbinical theft and thus forbidden even during the week, but might still not be something that would disqualify one from serving as a witness.

This approach would make it easier to rule leniently like Rav Sheishes and only disqualify professional gamblers as witnesses, but would at the same time be taking a stricter form of Rav Sheishes’ view and concluding that even he agrees that casual gambling is forbidden, shutting the door on permitting casual gambling.

Could this possibly be the real view of the Rambam, some other Rishonim, or even the Shulchan Aruch?

It certainly would help reconcile the above-quoted view of the Rambam that gambling is forbidden as a rabbinical form of theft with his words elsewhere which say that only the professional gambler is unfit to be a witness.

This is indeed close to the approach of the Vilna Gaon, who actually deletes the phrase כל כי האי גוונא לאו אסמכתא הוא from the sugya in Sanhedrin and seems to understands that Rav Sheishes agrees that it is indeed a rabbinic form of theft, just not enough to disqualify one as a witness.

In practise:

Most contemporary Sephardi authorities forbid all forms of gambling including lotteries and consider them a form of theft.

Most mainstream Ashkenazi authorities, while discouraging gambling, do not forbid it out-right on a casual basis.

All authorities agree that someone whose sole profession is gambling is unfit to be a witness.

Mussar:

The idea that the professional gambler is unfit as a witness because he is not engaged in constructive pursuits, is understood in various ways in the Rishonim, and a more complete analysis of the subject obviously requires a through study of all these views.

Yet I cannot help but be bothered by the idea that the modern-day wealthy philanthropist who owns many casinos, employs huge numbers of people, keeps the laws of the land with everything on the books, and supports countless charitable causes, including many Torah institutions, could be invalid as a witness if this is the main way he made/makes his money.

Can he truly be regarded as someone who does not respect other people’s money, and is likely to lie under oath, when he clearly does so much good for society as well?

Without ruling on this issue, given that this does in fact appear to be the default law, there appears to be a powerful message behind this halacha- not only does the end not justify the means, the means doesn’t even justify the means!

A profession which does so much damage to society as a whole and ruins countless lives cannot be justified simply because it creates work for many other people, or because so many of the proceeds go to charity.

Although it is questionable whether this concept could be extended on a halachik level to other areas of business that do more harm than good to society, such as cigarette manufacture and sales, and possibly even alcohol, at an ethical level there is certainly a comparison.

Just like it is clear, or at least has been till recently, that people who sell dangerous drugs are not to be praised just because they create employment for others who work for them, or give some of the proceeds to charity, anyone engaged in industries that are mainly harmful to the public should be very aware of the serious ethical and probably halachik issues they face.

Current Affairs and food for thought:

During the current Corona Crisis in Israel, one of the justifications for allowing high-risk businesses such as function-halls to reopen, is the fact that they employ many people and help support the economy.

If these events are essentially endangering society’s well-being, are these arguments not irrelevant , and should we not say that people who open such businesses at this dangerous time are at least on an ethical level, not involved in constructively building the world?

Shabbos 126-127 Hachnasas Orchim (Hospitality

The Mishna on daf 125b tells us that one is permitted to clear out 4 or 5 boxes of straw from one’s property on shabbos to make place for visitors or for people to learn Torah.
Although this is clearly limited to moving them within a private domain, this flies in the face of the prohibition against טרחה יתירה (exertion) on Shabbos, which in turn could fall under the prohibition of performing weekday activities.
The Gemara on daf 126a deduces from this leniency that hosting guests is as great, or even greater, than Torah learning, seeing as it is mentioned in the Mishna together with, and indeed before, Torah learning.
In Parshas Vayeira (Beraishis 18/1), we are told how Hashem appeared to Avraham when he was sitting at the entrance of his tent.
We are then told that he lifted his eyes, saw 3 people standing in front of him, and ran to greet them.
He then beseeched “Please my Master, do not leave”, and instructed his family to bring them some water to wash their feet.
The word אדני used in this passuk has a dual purpose- it can be used as קודש (a holy expression referring to Hashem), or as חול (a regular noun referring to a human master.)
There is a debate (Shvuos 35b) regarding what the meaning of the word is in this context, which in turn has major ramifications for the narrative.
One version is that the word “master” mentioned here is a term of respect for the one whom he believed to be the leader of the 3 guests.
Hashem appeared to him by sending 3 angels in the form of men. He rushed to great them and asked the leader not to leave while he arranged for their hospitality.
The other view is that the “Master” being referred to is indeed Hashem- Hashem first appeared to Avraham (prophetically) to ask how he was doing after his circumcision. While Avraham was “talking” to Hashem, he saw 3 visitors coming, and ran towards them, asking Hashem to wait while he arranged for their hospitality.
The Gemara continues with the incredible statement that hospitality is even greater than greeting Hashem!
This is learnt from Avraham who asked Hashem to wait for him while he sorted out the needs of his guests.
Tosfos here points out that our Gemara supports this later reading, and the Gemara in Shvuos itself makes this observation.
Are we supposed to treat this statement as a possibly exaggerated or at least non-halachik aggadic statement, or is to be taken at face value in a halachik sense?
Are we truly supposed to interrupt our engagement with Hashem, such as davening, or even Torah study, for the sake of hospitality?
After all, we know that although one is permitted to interrupt the Shema and its Brachos under certain limited circumstances to greet someone or return a greeting (Brachos 13a), the same permission does not seem to be applied to one’s actual davening (Shmona Esrei,) during even which even the presence of a non -venomous snake is not considered enough of a reason to interrupt (Brachos 33a.)
We were also told the story of a certain pious person who refused to interrupt his tefilla even to answer an envoy of the king, seeing as he was speaking to the “king of kings!” (Brachos 32b)
Yet from the context of this statement, in the midst of the very halachik discussion about being permitted to exert oneself on shabbos for hospitality as well as Torah study, it seems to be a rather halachik statement, and indeed, the Rambam )Aveil 14/1) quotes this statement, almost word for word, and rules that although hospitality is a rabbinic commandment, it is also included in the biblical command of ואהבת לרעיך כמוך (love your neighbor like yourself.)
Perhaps tefilla is not the same as “greeting Hashem” but something even more serious, that indeed cannot be interrupted for the sake of guests, but it seems rather far fetched to assume that our tefilla is more important that the prophetic revelation that Avraham experienced.
One could also suggest that tefilla is different, in that it is us who are praising Hashem, asking him for OUR needs as a collective, and thanking him for what he has done for us, whereas in the case of Avraham, Hashem was “coming” to check on Avraham’s individual well-being only, which Avraham was entitled to put on hold for the needs of his guests.
Once again though, this sound far-fetched, seeing as at the end of the day, Avraham was indeed asking Hashem to “wait” for him , after “coming especially” to visit him, and it is doubtful that our tefilla can be viewed as less delayable than this precious visit.
I would like to suggest that the distinction lies rather in the reason for the disruption.
When a person is distracted by a non-dangerous snake, his interruption is not due to his caring for others, but rather for his own peace of mind.
The same applies when he is distracted by a king.
Although it is obvious that if there is danger to his own life or that of others, he would clearly be required to interrupt his davening, this is not necessarily so for his own peace of mind.
However, when greeting guests, particularly travelers in need of basics such as food, water, and a place to sleep, this disruption is not for one’s own needs, but for other people, whom Hashem himself has commanded us to look after, and for whom even the basic rule of דרך ארץ קדמה לתורה would probably require one to look after, at least in the absence of such a clash of values.
In such a situation, the Torah teaches that the value of looking after other people’s needs takes priority over your personal Tefilla.
As is made so clear in in numerous places, and summed up so clearly by Yeshayahu (58), in the famous excerpt which serves as the Haftarah of Yom-Kippur, the purpose of fasting (and other divine service) is not “bowing one’s head like a fish-hook”, but rather “removing the bonds of wickedness” and “giving out your bread to the poor, clothing a naked person when you see him.”
Hashem is more than happy to “wait around” while one performs one of his most precious mitzvos.
It should be noted from here that the main mitzva of hospitality involves hosting travelers and other people in need, not simply having people from one’s own circle of friends over for the sake of socializing.
While it could be argued that this is also a form of chesed or even included in this mitzva, after all most people , at least in today’s world, have social needs, the main source we have seen regarding Avraham Avinu specifically refers to strangers and others in need, as does the logical explanation we discussed above.
Indeed, the Beis Yosef (O.C. 333,) discusses this in detail and rules explicitly that the leniencies regarding the mitzva of hospitality do not apply simply to social meals, as does the Rema O.C. 333/1.
The biggest thrust of one’s efforts should thus specifically be hosting travelers, students who are away from home, the poor, single people or older couples who are alone, and the like, and not those who we personally prefer to have around!

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.

Shabbos 120 Honesty in business and about one’s qualifications


On the previous daf, we learnt the frightening statement of Rava that Yerushalayim was destroyed because there were no אנשי אמנה (trustworthy people.)
He backs this shocking accusation up with a verse (Yirmiyahu 5):
שׁוֹטְט֞וּ בְּחוּצ֣וֹת יְרוּשָׁלִַ֗ם וּרְאוּ־נָ֤א וּדְעוּ֙ וּבַקְשׁ֣וּ בִרְחוֹבוֹתֶ֔יהָ אִם־תִּמְצְא֣וּ אִ֔ישׁ אִם־יֵ֛שׁ עֹשֶׂ֥ה מִשְׁפָּ֖ט מְבַקֵּ֣שׁ אֱמוּנָ֑ה וְאֶסְלַ֖ח לָֽהּ:
Go walk around the courtyards of Jerusalem and please see, and know, and search in its streets, if you can find a man, if there is one who performs justice and seeks trustworthiness, and I shall forgive her.
In a no holds barred rebuke, the prophet Yirmiyahu gives the about to be exiled inhabitants of the city  a divine message that if even one honest man can be found in her streets, Hashem is prepared to spare her.
Rava deduces from this that the inability to find even one such person, is the reason for the destruction!
It is beyond our ability to even fathom that the holiest city of the holiest nation in history had sunk to the depths where not even one honest man could be found in it.
It could well be that this statement is to be seen as somewhat of an exaggeration which comes to teach us that the people as a whole did not meet the high levels of total honesty that was expected of the “chosen people.”
However, even if this is the correct way of reading this verse and passuk (which is questionable,) there is no escaping the severity of the statement and the fact that the prophets and sages viewed lack of honesty as one of the worst possible characteristics, making it a leading candidate for the cause of the destruction.
The frightening fact that these were not necessarily the most evil, crooked people, or that different from many of us, can be further backed from the continuation of the sugya.
The Gemara questions Rava’s harsh statement with  a seemingly contradictory statement of Rav Katina, who states that even at the lowest point reached in the city, there were always honest people left in it, and brings another, rather cryptic, verse to back himself up.
The Gemara interprets this verse to mean that people at the time would   confess that they hadn’t invested in their Torah studies and that they were  basically ignorant of all 3 main areas of study,  Mikra (the written word), Mishna, and Talmud.
This seems to imply that people were so honest that they would not even claim to have learnt more than they had.
The Gemara attempts to retort that this could simply be because they didn’t want people to question them and find their knowledge lacking, but have nothing to do with their inherent honesty, and thus not apply in situations where others were not likely to find out.
It answers that this would not be a reason to be this honest and harsh on themselves, because if asked a question they were unable to answer, they could simply reply that they had learnt it but forgotten!
The fact that they were completely straight about their lack of effort in their learning and resultant lack of knowledge shows that they were doing it out of honesty!
This might seem trivial, but I can personally attest that one of the hardest things for someone who is in a position of leadership is to admit his shortcomings regarding his qualifications.
People go to incredible lengths to make themselves seem more qualified than they are, sometimes to the point of forging the necessary documentation.
Those of us in the world of Torah teaching also like our students and followers to look up to us and see us as good examples in our learning, to the point that we are sometimes tempted to exaggerated our knowledge .
Sometimes we even convince ourselves that it is in the greater good to do so, so that we will be able to get their ear and at least influence them to learn more(this was admittedly part of my initial motivation for obtaining semicha (rabbinical ordination.)
Numerous times, I have been asked by students if I have finished the Shas,  and admitting that I haven’t come close has been a major embarrassment.
Contrast this with the behaviour of truly great Torah scholars, who often minimize the extent of their knowledge, in the spirit of chazal’s permission to tell a “white lie” in three cases, one of them being מסכתא  , denying having learnt a particular tractate even if one has done so (Bava Metzia 23b.)
This reminds me of a talk that I merited to hear in person from haGaon Rav Herschel Shachter, שליט”א, someone we all know is familiar with Shas virtually by heart.
It was at our annual shul Siyum hashas(completion of the Talmud)  that had been divided amongst members of the community, and Rav Schachter, in his typical fashion, quipped “Its an incredible achievement to finish the Shas. I haven’t finished the Shas yet!”
Even when we are able to be honest about the extent of the knowledge we have accumulated, we often tend to quote primary sources as if we have studied them first hand, when we really only became aware of them because of  a database search, one of the modern works on the subject who quotes them, or even a Tosfos quoting a Yerushalmi.
 Rav Baruch Epstein  of blessed memory, was one of the Torah giants of the previous century and author of the encyclopedic work “Torah Temima”, which links every passuk in the Torah to the corresponding  midrashim of Chazal  ,a particularly  incredible feat in the days prior to computer search engines, and also analyzes them.
He was also the son of one of the greatest halachik authorities and writers of post Shulchan-Aruch times, the famed Rav Yechiel Michel Epstein, author of “Aruch haShulchan.”
In his epic biographic work “Mekor Baruch,” he has an enlightening section entitled “the wisdom of women,” where he tells, amongst others, a story about one of his encounters with his illustrious Aunt Rebbetzin Batya, the wife of his uncle,  the famed Netziv of Volozhin.
He tells how in his younger years, he was at the table of his uncle and aunt and was asked to  say some words of Torah.
During his talk, he referred to a piece from the Yerushalmi (Jerusalem Talmud), something usually only studied by older Talmidei Chachamim who have already studied the Bavli (Babylonian Talmud) in great depth.
His Aunt asked him, in a not so gentle rebuke, whether he had actually studied the Yerushalmi.
He responded, honestly, that he had not, but had seen it quoted in a Tosfos, or one of the other Rishonim (see the book for a precise account- I am telling this from memory seeing as I do not have it in front of me right now.)
She then asked him how he could have the cheek to quote from the Yerushalmi if he had not studied it directly?
She admonished him that if he only saw the Yerushalmi inside a Tosfos, he should have made it clear that he had quoted it second hand, and had seen it in the Tosfos, and not given the impression that he was a scholar in Yerushalmi.
We see how such a common and innocent failure to disclose the  secondary source from where one identified a primary source was taken so seriously in a palace of Torah such as that of the Berlin’s.
Coming back to our daf, the Gemara finally reconciles the contradictory views by shockingly differentiating between honesty related to one’s Torah knowledge, and honesty in business.
There were indeed people left in Jerusalem willing to admit their failure to learn and acquire Torah knowledge, but there was none who was truly honest in business!
This seems at first to be counter intuitive- surely none of use would dream of dishonesty in business, but we certainly could make the error of inflating our own achievements in learning?
Yet based on the conclusion,  perhaps when we examine our actions more closely, we will see that behaving completely honestly in business is one of the biggest challenges that we face, and even those of us who would stick fastidiously to the advice of the formidable Rebbetzin Batya, might need to examine our actions in the business sphere more carefully- after all, we do not want to be in the category of those who caused the destruction of our Holy city and Temple, chas veshalom. 

Shabbos 114 Shabbos clothes, The definition of a Talmid Chacham and Chillul Hashem

Our daf continues to discuss the Mitzva of having special clothes for Shabbos, based on the famous Pesukim (Yeshayahu 58), read as the Haftarah for Yom Kippur.

These Pessukim teach us that just like Hashem is not just interested in the technical aspects of the sacrifices, but is even more concerned about the concept behind them, the “spirit of the sacrifices” so to speak, so also when it comes to Shabbat, it is not only the technical specifications about whether something is considered a forbidden melacha that are important, but also the special sanctity of the day- the “spirit of shabbos, “ so to speak.

As such, we are required not only to refrain from biblical forbidden melacha on shabbos and their rabbinically related prohibitions, but also to refrain from things that are associated with the vibe of the weekday (עובדין דחול) and to engage in activities that are special for shabbos and that are in keeping with the sanctity of the day.

This is not an extra chumra (stringency), as many mistakenly believe, but a complete מצוה מדי סופרים (Mitzva of the prophets or later sages), that is binding on everyone, and that might also affect biblical law (possibly a גלוי מלתא as to what is included in the biblical requirement of תשבות, but that is for a different analysis!)

In addition to avoiding any business transactions or even business related talk, walking quickly in long steps or running (see previous daf), one of these requirements is that one’s shabbos clothes should not be the same as those worn during the week, and our daf brings a source in the Chumash itself that changing one’s clothes is a sign of respect from the Kohanim who needed to change their clothes between cleaning out the ashes and performing the actual offerings.

The logic given is that one should not use the same vessel he has used to mix a drink for his master to serve one’s master with.
Similarly, part of the mitzva of honoring shabbos referring to in Yeshayahu, must surely include putting on special clothes that befit the sanctity of the shabbos.

Often, I see people, children and teens in particular, who come to shul on shabbos wearing weekday clothes, such as jeans and t-shirts, and although it is clearly preferable that they come dressed that way rather than not come at all,I believe that parents and Rabbis should use common sense where appropriate to encourage those who are likely to listen to wear the appropriate formal and special attire for Shabbos.

I also often see people, once again children and teens in particular, changing out of their shabbos clothes after lunch on shabbos, and going to play sports in shorts, t-shirts, and the like.

This is a more complex issue, which involves the question of which, if any, sports are permitted or forbidden on shabbos, and whether they fit into the requirement to avoid weekday activities and focus on things appropriate for the day.

If, and only if, one is able to permit such activities as part of עונג שבת, subject to any halachik restrictions involved, are we able to deal with whether it is permitted to change into weekday clothes for such activities.

On the one hand, just like running might be permitted for youth because that is their עונג שבת (enjoyment of the day,) rather than a stressful weekday activity, perhaps wearing comfortable clothing suitable for such activities might also be.

On the other hand, it is possible that any activity that cannot be performed comfortably in shabbos clothes (other than resting or sleeping obviously) might be a weekday activity by definition!

In addition to clothes being a way of highlighting the honor of shabbos and the divine services, they are also a way of highlighting one’s honor for davening(prayer) , and the honor of the Torah , as represented by Talmidei Chachamim (Torah scholars.)

As such, Talmidei Chachamim traditionally wore special clothing, and were expected to be particularly careful not to have any dirt or stains on their clothes.

The later not only fails to show honor to the Torah they represent, but causes a terrible Chillul Hashem, and as a result, the Gemara uses the very harsh expression חייב מיתה (deserving of death) for one who does so.

This is based on the verse משניאי אהבו מוות (those who make people hate me, love death-Misheli 8/36)
As Rashi explains, when a Talmid Chacham appears dirty, it causes people to hate the Torah that he represents, and ultimately Hashem himself!

These words might seem harsh, but they certainly convey the sensitivity that a Torah society should show to cleanliness, and that a person who is looked up to by others, should highlight in himself.
This presumably applies not only to a stain, but also wearing torn or smelly clothing, or giving off bad body odor or breathe.

Although it is logical that all of us should show sensitivity to this essential value, it is clear from our sugya that the more of a Talmid Chacham one is, the more careful one needs to be.
At this point, this begs the question- how do we define a Talmid Chacham, at least as far as this rule is concerned?

Does this apply only to one of the Gedolei haDor (leading Torah sages), to anyone with a good general knowledge of all areas of Torah, or perhaps to someone with a high level of knowledge in one area of Torah, someone who serves as a community Rabbi or Torah teacher, or anyone who studies Torah daily or who is more knowledgeable than average?

On our daf, Rabbi Yochanan presents 3 definitions of a Talmid Chacham:

  1. A Talmid Chacham on the level that one would return lost property to him without him being requirement to produce simanim (identification signs), as long as he says that he recognizes it- Rabbi Yochanan identifies this as someone who is careful to turn over his shirt if he put it on the wrong way.
  2. A Talmid Chacham who is worthy of being appointed as a פרנס (leader) of the community- this is defined as someone who can be asked a halacha in any area of the Torah and is able to answer, even in less commonly studied areas like the “minor tractate” of Kallah.
  3. A Talmid Chacham whose labor the community is required to perform on his behalf (possibly meaning to support)- Anyone who puts asides his own concerns and focusses on the concerns of heaven.

It seems from the above definitions that the term “Talmid Chacham” is not only used to describe a person’s actual knowledge, but also his trustworthiness, reputation, and self-sacrifice for divine matters (see our earlier post on ירידת הדורות for an interesting parallel.)

When it comes to appointing someone as Rabbinic leader, the person is expected not only to have the correct character traits (which should go without saying, after all דרך ארך קדמה לתורה), but also have total knowledge of the entire corpus of Jewish law, to the point that he can answer any questions that come his way.

As the Gemara later says, in order to be a local community Rabbi, such knowledge in one מסכתא (tractate) is actually sufficient (presumably he will then have the skills to look up or refer questions in area outside his expertise) , and to be the Rosh Yeshiva (presumably of the entire country or nation), such knowledge of the entire Torah is required, as per Rabbi Yochanan’s definition.

However, there are other traits that make the title of Talmid Chacham appropriate for someone:

When it comes to trusting his honesty as a Talmid Chacham is supposed to be trusted, the fact that he has the reputation of an honest and generally well-learned figure is sufficient. (the later requirement being my own assumption, as it is unlikely than any honest person would be referred to as a Talmid Chacham without any minimum level of Torah wisdom/knowledge)

When it comes to giving him the support needed to carry on his holy work, his level of learning and reputation is less of a factor, and his motivation and self-sacrifice is what counts the most.
Seeing as the laws we have discussed regarding being clean and presentable are based on preventing Chillul Hashem and thus dependent very much on the person’s reputation, it seems logical that the appropriate definition for the purposes of this law would be anyone with the reputation of being a Torah personality, such that one would trust his honesty in monetary matters.

As such, it is possible that in today’s time, anyone who is a Ben Torah- someone whose life-center is the study and application of Torah regardless of what trade or profession he follows, might well be in the spotlight of the majority who unfortunately do not yet fit into this category.

In a world where the majority of Jews are not yet observant unfortunately, this argument could possibly be applied to ALL “frum” (religiously observant) people.

As such, anyone in this category needs to be particularly concerned about how he presents him/her self, and of course even more so, about how he/she behaves!

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.

Shabbos 97 False Accusations and justifiable censorship

On this daf, we continue dealing with a fascinating מחלוקת (disagreement) between Rabbi Akiva and Rabbi Yehuda ben Beseira, regarding the identity of the מקושש (the person found guilty of gathering wood on Shabbos.)

Every cheider kid will tell you that there is no question here- it was obviously צלפחד, the man whose daughters were later granted his estate.

However, nowhere in the text of the Torah is his identity mentioned, and it is Rabbi Akiva, who derives it from a גזירה שוה (an orally transmitted tradition hinted at by use of similar language in the text.)

This identification of the מקושש as צלפחד seemed so radical to Rabbi Yehuda ben Beseira, that he rebuked Rabbi Akiva with the argument that if he was wrong, he was guilty of false accusations, and even if he was right, he was guilty of revealing information that the Torah had chosen not to reveal!

The Gemara questions how Rabbi Yehuda could take issue with Rabbi Akiva, given that a גזירה שוה is a legitimate form of interpreting the Torah, and in fact, anything derived from one is considered as if it was actually written in the Torah explicitly!

The Gemara responds that Rabbi Yehuda ben Baseira had not received that גזירה שוה in his oral tradition from his Rabbi.

The nature of דרשות in general, and a גזירה שוה in particular, could make an essential study in its own right, perhaps in a later post, but for today, I wish to focus on the 2 things that Rabbi Yehuda ben Beteira accused (irony noted) Rabbi Akiva of doing, i.e.

i. Possibly falsely accusing צלפחד of something he never did

ii. Possibly revealing the identity of the מקושש when the Torah had chosen to cover it up.

The Gemara proceeds to record a similar debate, where Rabbi Akiva claims that Aharon was punished the same as Miriam for speaking lashon haRah about Moshe, and became a מצורע (lepor) too.

Once again, Rabbi Yehuda rebukes him for either spreading falsehood about the righteous Aharon or revealing the fact that he was equally implicated and punished, when for some reason the Torah had chosen to cover it up.

The Gemara later on brings Reish Lakish who claims that Moshe Rabbeinu himself was afflicted with צרעת on his hand because he had falsely suspected the Jewish people of not being open to listening to his message- He learns from this a general rule that anyone who falsely suspects an innocent person will suffer physical afflictions on his body.

The Navi Yeshayahu too, appears to have fallen prey to this sin during his initiation as a Navi (Yeshayahu 6/5), when he accuses the nation of being a nation with impure lips- We see there as well that the angel strikes him on his mouth as a punishment.

Those who have learnt Brachos might also recall the famous story with Chana and Eli (Brachos 31b) where he accused her falsely of being drunk, and she responded that he needed to bless her in compensation.

There too, we see reference to the biblical case of a Sotah, who if falsely accused by her husband of adultery, is blessed with having children (Bamidbar 5/12.)

It is important to note that Rabbi Akiva does not in any way minimize the severity of false accusations, or revealing what the Torah covered up- he simply has a received oral tradition that his facts were correct, and thus also believed the Torah had never covered them up.

While anyone who has ever been falsely accused of anything can testify to what a crushing experience it is, It is also important to note that Rabbi Yehuda ben Beteira rebuked Rabbi Akiva for this in two cases where the relevant person was already dead and would not suffer the results of the accusation, at least as we livings humans do (what the dead do or don’t feel is another subject- you might recall the discussion on this in מי שמתו)

It seems that this would thus apply even more so to falsely accusing someone who is still alive (though one could also argue to the contrary, the living are able to defend their own reputation, but the dead cannot.)

Yet surely there is also a time when one needs to take the risk of falsely accusing someone?

The case of a Sotah is a clear example of this- the accusation is allowed, and the woman subjected to a very unpleasant procedure, and if it is false, she is compensated.

If there is compelling evidence that someone is a dishonest in business, even if it cannot yet be proven in court, is it not necessary to take the risk of publicizing this in order to protect others, and later compensate him if the proof is found wanting?

If there is compelling evidence that someone is a child molestor, is it not necessary to first warn people to keep their children away from, and later compensate him if the evidence is found to be lacking?

As to the second rebuke of Rabbi ben Beteira, is he really discouraging freedom of reporting? Does he really suggest that terrible travesties should not be publicized by those who know about him, because the authorities that be have decided to cover them up?

This question is extremely complex and lies at the heart of the way Jewish leaders need to deal with such things. It is certainly not solvable in the few lines that make up this essay, and requires, amongst much else, a thorough analysis of the idea of חושש מבעי (although one may not believe lashon haRah, one may sometimes take it into account in order to prevent harm- see Niddah 61a and Chafetz Chaim/Lashon haRah 6.)

However, it seems clear that one must very carefully weigh the damage done to the victim of possible false accusations against the damage that could be done to innocent people if the charges are true.

Sages like Rabbi Akiva and Rabbi Yehuda ben Beteira knew how to make these calls. In the case of the Sotah, we had the miraculous bitter waters to make the call for us- for us, it is much harder.

Similarly, there are times that it is constructive to publicize the confirmed sins of people, particularly great people, for the public good- Yet there are also times that such revelations are not constructive.

The Torah is certainly the supreme authority over such decisions and can hardly be accused of covering up the sins of great people, as any biblical student can attest.

During the times that the Torah does choose not to publicize something, it is not for us to reveal it, and we must assume that doing so is not sufficiently constructive to justify it.

This fits in well with the fact that lashon haRah is forbidden even if it true unless there is justifiable benefit to spreading it.

Our great prophets and sages struggled with these choices and sometimes even they failed.

How much more so must those of us responsible for such decisions in our time, relate to them with great trepidation and after coming to a rational halacha based decision, daven hard שלא תבוא תקלה על ידי (that no damage should be caused by my decision.)

Shabbos 91 and Parshas Behaaloscha Racism, Self-Defense, and Prison Reform

Today’s daf contains an unusually high amount of different Talmudic principles, all of which can be the subject of post after post on their own.

Among them we see again the concept of אחשביה, the idea that something (or quantity) generally not appreciated as significant by a society in general and thus not subject to the penalty for transferring on shabbos, can become significant when someone sets it aside for a useful purpose.

Besides, for being a recurring theme in our masechta regarding shabbos, we have also seen this in a recent post regarding inedible chametz on Pesach, which can become forbidden when someone chooses to eat it.

We also see the principle of בטל דעתו אצל בני אדם, ( a person’s view is nullified by the view of others), which in our case, shows that the converse DOES NOT apply- even if someone does not regard something as significant, if the majority of people do regard it as such, it is also considered significant.

And towards the end of the daf, we encounter a famous legal rule of קים ליה בדרבה מיניה (a person who does one action subject to multiple punishments, is only subject to the greater of the two.)

It is very tempting with our high, often justified, but often exaggerated, regard for the modern, western justice system, to chas veshalom view the Torah approach to justice as archaic, and even cruel chalila.

While there are certainly many aspects of it, that at least on the face of it, do create philosophical and ethical challenges for us , there are So many concepts, that even on the simple face of it, should be so easy for modern society to learn from.

Punishment is supposed to be constructive, fit the crime, and not over burden society.

On the one hand, self-defense, and defense of one’s property, is a legitimate reaction, and one of the main sugyas of the idea of קים ליה בדרבה מיניה, is the sugya in Sanhedrin (72a), where one is permitted to kill a robber breaking into one’s house, when the assumption is that the thief is coming to kill.

This is so much so, that the thief is exempt from monetary claims caused by his damage during the crime, seeing as he was subject at the time to a possible death penalty!

Yet, the rule is also very clear that this (as well as the general rule of a pursuer) is an absolutely last resort- If there is any way to save oneself by wounding the attacker, one is required to do so, and if one fails to, one is guilty of murder )Sanhedrin 74a.)

In a world where so many people are treated as second class citizens, the rule of אחשביה could teach us on an ideological level, that we are able to elevate these people and restore their dignity simply by starting with ourselves and being the one’s to appreciate them.

At the same time, we can never be guilty of being the ones to treat people with less dignity than the norms of the society in which we live.

In our parsha, Miriam is guilty of gossip against her brother, Moshe Rabbeinu, the greatest prophet of all time.

The passuk tells us that this gossip, had something to do with the Cushite (Ethiopian black) wife that Moshe had taken.

There are many varied explanations in Chazal and the Rishonim as to the precise nature of the gossip (some of which might have more appeal than others to our personal views on racial matters) , and of course, there are multiple facets to everything in Torah.

However, we have one iron-clad rule that Chazal themselves taught us (earlier in our masechta) : אין המקרא יוצא פשוטו (a verse does not depart from its simple meaning.)

This golden rule is usually taken to mean that the various midrashim, even those that seem to contradict the simple reading of the passuk, come to supplement and add additional messages to the simple meaning of the text, NOT to replace it, and although there is much to discuss about this idea in its own right, I will take it as a given for the purposes of this post at least. (for further reading, see the various explanations in Rashi, Ibn Ezra, the Targumim, and in particular, the Sifsei Chachomim on the two explanations in Rashi, on this episode.)

Although it is always hard to understand how great people can do terrible things, whatever the precise nature of this gossip was, the terrible punishment makes it clear that it was indeed a terrible mistake.

I would like to suggest what to me, at least in the context of our time (and the timeless Torah speaks to ALL of us, in ALL times), is the most obvious simple meaning of the text.

In the biblical society, like in today’s so called liberal western world, the illness of racism was a scourge, that even otherwise great, and good people, were affected by.

Moshe Rabbeinu’s marriage to a black woman, was frowned on so much in that society, that even his own great and righteous sister couldn’t handle it.

And what happened- she become ill with an affliction which makes the skin go snow-white!

In Judaism, diversity in creation is actually celebrated, and even has its own bracha, משנה הבריות, (one who diversifies his creations), one that is actually made on rare animals like elephants (depending on time and place), as well as unbelievably, black people, who were very rarely seen in Talmudic Israel and Babylon (Brachos 58b.)

Perhaps the simple lesson from Miriam is that if one doesn’t appreciate that “black is beautiful”, one can land up as a leprous outcast, as white as white can be!

Shabbat Shalom ,and may we see the end of the terrible scourge of racism and the appreciation of every person created in the Image of Hashem.