Eruvin 55 The extended techum and Table Mountain continued, and self-sacrifice for Torah

Today’s daf has a solid mix of aggadic material and a return to the technical rules regarding how to work out the extended shabbos domain of a city.

I wish to start with the halachik side of the daf, כדרכינו בקודש, even though some of  the aggadic material precedes it, and hope to return to the Agadot thereafter.

For the sake of clarity, the אגדה includes all content in the Talmud that does not involve the halachik (legal) process, including מדרשי אגדה  that comment on the narrative portions of the Tanach or complement them and ethical and other advice- see מבוא התלמוד attributed by many to Rabbeinu Shmuel haNagid, one of the first of the Rishonim  and published at the back of מסכת ברכות  for his exact definition, though note that his view on the source and authority of agada is subject to much debate amongst the Geonim, Rishonim and later authorities (my in-depth Hebrew article on this subject is currently work in progress.)

We have already learnt that the general rule is that the techum (shabbos domain) of a city in which one is permitted to walk on Shabbos  stretches to a maximum of 2000 amos (between about 800-1000 m) from the last house in the city’s halachik borders (recall that 2 houses separated by 141 amos or more of empty space might be considered halachically to be in 2 different “cities.”

We have also seen recently that this applies in theory, but that in practise, the distance one may walk from the last house of the city might be significantly more, for 2 reasons:

  1. The limits of the city proper might stretch significantly beyond the last house, such as when the shape of the city is irregular (non-rectangular or grid-like) in which case some open space might be included in these limits themselves.
  • The techum of the city, while theoretically stretching 2000 amos from the end of the city-proper, is effectively measured by placing a rectangular block at the corners of the city and not a circle, meaning that while the shortest this techum will extend is 2000 amos, at the diagonals, it will extend significantly more (by pythagorus.)

The first rule is not applied universally, and one needs to be familiar with all the different shapes discussed in the sugya and which other shapes would be treated like these shapes, before jumping into using this potentially very useful tool.

For example, while a circular city has a square circumscribed around it, including the empty-space outside the circle but inside the square in the city proper itself, and a trapezium seems to be  viewed as if it is was the smallest rectangle that it could fit inside, a rectangular city is left as is, and  a parallelogram could be more complex.

There is also some discussion as to whether the square needs to be on the North-East-South-West axis of the world or can face any direction.

One of the more fascinating shapes describes is the עיר העשויה כקשת – a city in the form of a bow (or rainbow.)

The Beraisa  initially taught us that we draw a fictitious line from the one extreme of the bow to the other (this line is known as the יתר and represents the string which would be pulled back by the arrow before the arrow is released ) and view all the empty space between this line and the houses of the city as part of the city-proper, measuring the techum from this line.

However, Rav Huna rules that this only applies if the length of this line is no more than 4000 amos, allowing someone whose shabbos base or house is in the middle of this line (the spot where the arrow would be placed)  to walk to the city within his own 2000 amos (see Rabbeinu Chananel for his full explanation.)

However, if the length of this line is more than 4000 amos, the empty space is not included in the city limits, and the techum is measured from each individual house.

According to Rabbah bar Rav Huna, the space between the bow and the middle of the line also needs to be less than 2000 amos in order to include the empty space in the city proper, but according to his son, Rava, this is not necessary, and Abaya supports  his lenient view, seeing as anyone in the city could reach the middle of the  line by walking first to the end of the city.

Tosfos suggests that  according to Rava son of Rabbah bar Rav Huna, if the distance between the bow and the line itself is less than 2000 amos, the 4000 amos  restriction on the length of the line might not apply due to the same reasoning of Abaya- the midpoint of the line could be accessed through the 2000 amos or less route to the bow itself- this too is subject to debate amongst the Rishonim.

Tosfos further assumes that the 4000 amos limitation on  a bow-shaped city does not apply to the case discussed earlier where a house or row of houses  protrudes outside the grid of the city. In such a case, even if it is more than 4000 amos to the fictitious parallel row of houses we draw on the opposite end, the empty space is included in the city proper. 

Although he attempts to explain the reasons for this distinction, he admits that the Ri (one of the two most senior Baalei haTosfos) holds that this limitation applies to that case as well. Once again, this topic has generated much discussion and debate amongst the Rishonim and can also affect L shaped cities.

Though there is so much more to learn and understand regarding the above and other related issues (those whose appetite has been whet might enjoy the extensive treatment of this issue in the Rashba, Ritva, Meiri and other Rishonim) ,it is now clear that including the empty natural space between the extremes of an irregularly shaped city is far more complex than it might have originally seemed.

We are not even close to theoretically allowing climbing table mountain on shabbos or Yom-Tov  even without the other multiple halachik challenges one would face (though as per accompanying images from google Earth, it seems that the “Lions Head” Mountain might fall completely within the techum of Cape Town City, and at least on Yom-Tov where carrying is less of an issue, with the guidance of the local Rabbis and eruv experts, the gorgeous trail up and down MIGHT indeed be permissible.

In the beginning of the daf, various explanations are given of the passuk “לא בשמיים היא ולא מעבר לים היא  ” – (it is not in heaven nor is it on the other side of the sea.)

I would like to focus for a minute on the explanation of רב אבדמי בר חמא בר דוסא  who derives by implication that although the Torah is indeed reachable for us, even if it were not, we would be liable to reach to the sky and cross the sea in order to get it.

There are times indeed when Torah goals seem unobtainable to us, and although we should be encouraged by the fact that in essence, they are vey much obtainable, we need to push ourselves and be prepared for self-sacrifice in order to achieve these goals despite how unobtainable they seem.

The Rosh Yeshiva זצ”ל , Rabbi Tanzer, was a prime example of someone for whom no goal was too far away when it came to his life’s mission of spreading Torah.

Starting with the literally huge distance diagonally over the Atlantic that he set out on together with his young wife, leaving behind their friends and extended families in an era of very limited communication for what was at first envisioned as a 2 year stint in Africa, he moved onto the virtually impossible goal of turning what was then a virtual spiritual wasteland into a vibrant Torah center.

This was not a job he fulfilled from the ivory tower of an office, or even a classroom, but one that took him literally from door to door begging parents to enroll their children in his fledgling Torah day-school.

Almost 6 decades later, the Yeshiva College campus has served  as the largest center of the Johannesburg Jewish Community and educated generations of students who span the Jewish world, from Rabbis and Torah teachers to businessmen and professionals, as well as some combinations of both.

Returning briefly to the more technical parts of daf, the rather superficial summary we have done above and the fastest reading of the daf reveals how an understanding of mathematics is essential to being able to make the complex calculations needed for taking full advantage of the shabbos techum- One also clearly needs some conception of how much a factor raw mathematics was in Chazal’s reasoning, something that only a good knowledge of both Chazal’s methodology and mathematics would allow.

Though those who knew him know that Rabbi Tanzer was first and fore-most a Rosh-Yeshiva who was most at home in the Beis-Midrash and who got the most joy out of those students who went on to become serious Torah Scholars, he always pushed his students to excel in their general education as well, creating a generation of students with the knowledge required not only for their chosen careers, but also for understanding many areas of Torah that are beyond the reach of those who lack this knowledge.

The Gaon of Vilna, broadly considered the greatest Torah figure in many centuries, was famous for stating that it is impossible to fully understand the Torah without understand all the forms of general (I prefer not to use the term secular) wisdom (see “haGaon” by D.E. Eliach for citation) , something he himself accomplished, and though neither he nor our Rosh Yeshiva would encourage one to give more priority to general studies than to Torah, chalila, I personally have found great benefit from the general education I received under Moreinu haRav Tanzer and his team, not just in my business, but most importantly in so many areas of my Torah Study.

Although reaching the wisdom of the Vilna Gaon is certainly like reaching for the sky, and building en empire of Torah like the Rosh Yeshiva did is certainly also above most of us, we can learn from him to be prepared to try our absolute best, and if we do so, the results will speak for themselves, with Hashem’s help!

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 51 מדבר שקר תרחק and telling an untruth for people’s good

My next few daf posts, admittedly slightly behind, are dedicated in loving memory of our dear Rosh-Yeshiva of Yeshiva-college, South Africa, Moreinu haRav Avraham Tanzer of blessed memory, who passed-away peacefully last night in Johannesburg.

It is thanks to him, that I, and countless others, started on our journeys in Torah study as children, and that I, and so many others, have had a long and successful career in Torah Chinuch as adults.

I also hope to share in this forum some personal thoughts and experiences about my relationship with the Rosh-Yeshiva and what I have learned from him in the coming weeks, Hashem willing.

With wishes of comfort and a long and good life to his holy Rebbetzin, children, and grandchildren, and to all his family of students around the world.

Yoni Isaacson/Ramat Beit-Shemesh.

There is an incredible story with the two leading third generation Amoraim of Bavel, Rabbah and Rav Yosef, who were on a walking journey home on erev shabbos and realized that they would not make it to the techum of their homes before shabbos.

Rabbah relied on the leniency we have been discussing that allows a poor person ( a traveler being considered a poor person regarding this law) to set aside his shabbos base from a distance in a place that is within 2000 amos both of their current position and that of their home , thus allowing them to get home on shabbos.

Rav Yosef responded that he was not familiar with that place, and Rabbah suggested that he rely on the Beraisa that brings Rabbi Yosi’s view that if one of the travellors is not familiar with the designated place, his companion may declare the shabbos base on his behalf together with his.

The Gemara then notes that Rabbi Yossi was not really the author of the quoted Beraisa, but that Rabbah merely told Rav Yosef that he was in order that he would accept the ruling, given the stature of Rabbi Yossi.

We should note that Rav Yosef was not some newly religious zealot or regular community member who needed “permission” from a great Rav to do something .

He was Rabbah’s colleague, known also as רב יוסף סיני after his superior breadth of knowledge, as opposed to Rabbah who was known as עוקר הרים- ” an uprooter of mountains- after his superior analytical skills ( see Brachos 64a.)

It is simply mind boggling that Rabbah would attempt to mislead Rav Yosef in such a way and that Rav Yosef with his superior knowledge of Beraisa’s would be misled, unaware that the quoted Beraisa was not the view of Rabbi Yossi.

Whereas it is possible that this event occurred at the time in Rav Yosef’s life when illness had caused him to forget his learning (Nedarim 41a) , it seems beyond understanding how a leading sage like Rabbah, could “lie” about the authorship of a Beraisa to get Rav Yosef to listen .

The Torah is the ultimate truth, the true Kohain has the Torah of truth in his mouth (Malachi 2/6), the seal of Hashem is truth (Sanhedrin 64a) , and we are warned clearly in the Torah “מדבר שקר תרחק” – ” distance yourself from falsehood.” )Shmos 23/7)

This command is taken so seriously by Chazal that someone who knows the law is on his side but lacks 2 witnesses to testify in his favor is not permitted to bring a second witness just to stand there to strengthen the words of the other ( see Shvuos 31a)

We seem to see from here that truth is not simply a utilitarian means to an end but also a means in itself- even lying for the sake of justice is problematic.

Whereas the context of the passuk and the above quoted sugya is clearly focused on a court situation, the passuk is also interpreted in a broader sense as referring to gossip and talking falsehood in general (see Rishonim on the passuk and the discussion regarding a bride in Kesubos 17a for an example)

Despite the above, we cannot escape the fact that there are some exceptions to the command to stay away from falsehood.

Yaakov Avinu himself was told by his mother, presumably prophetically, to lie to his father about his identity.

Chazal too tell us that for the sake of peace, it is sometimes permitted not to tell the whole truth, and that even Hashem did so with Avraham and Sarah, the angel did with Manoach, and we erased Hashem’s name in the case of the Sotah, (Bamidbar Rabbah 11/6.)

They also taught that Torah Scholars are accustomed to “change” their story in 3 cases- regarding his personal life ( for modesty reasons,) regarding his hosts generosity( to prevent others from taking advantage of this generosity, and regarding his knowledge (for reasons of humility – (Bava Metzia 23b and Rashi there)

It appears that there are some values such as peace, humility, modesty and shielding others from being taken advantage of that are even higher values than telling the objective truth.

This does not apply to one’s own financial benefit, even when the law is on one’s side, as seen in the above quoted sugya in Shvuos, but does seem to apply in the above instances.

It seems from the case on our daf that this is the case when it comes to the welfare and/or convenience of one’s neighbor or colleague.

Given the extreme discomfort that being stringent would cause Rav Yosef, and possibly even some risk to his wellbeing, given his age and health, Rabbah was prepared to compromise on the absolute truth of the identity of the lenient opinion’s author, seeing as he was himself of that opinion in any case.

Given the various mitigating factors in this case, and the severity of making false statements in general, it is clear that extreme caution is required in applying this leniency to other situations, but we can certainly learn the importance of helping others be lenient when permitted in cases of inconvenience- as Chazal have taught us – כח דהתירא עדיף – the power of leniency is preferred )see eg brachos 60a), a principle that might be given new meaning by this story!

Rav Tanzer of blessed memory, embodied the combination of dedication to Torah, truth, and helping others that we learn from this story- It is see who spread the truth of Torah in South-Africa over almost 60 years, at first going from door to door begging parents to enroll their children in his once fledgling and now flourishing Torah school in an age where this was almost unthinkable for most parents.

Yet the same Rosh-Yeshiva was never unnecessarily stringent at other’s expense, and always applied the principle of כח דהתירא עדיף to make life as easy for people as the halacha allowed him to do, even if it meant following more lenient opinions that colleagues of his were uncomfortable with.

After all, if Rabbah went to such lengths for Rav Yosef whose spiritual motivation hardly needed protection, how much more so is this necessary in a time and place where undue stringency can hurt, chase away or burn-out the very people we try to bring near.

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

Eruvin 37 and 38 Yiftach’s daughter and ברירה

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.

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 132 עשה דוחה לא תעשה and מצוה הבאה בעבירה- Does the end justify the means?


On this daf, we discuss the reason why one is permitted to perform a bris on Shabbos, despite the fact that the forbidden melacha of making a wound is an inevitable part of the removal of the foreskin.
We also discuss why it is permitted to perform a bris on someone who has a leprous lesion on the site of the bris.
Various reasons are given for the former, but the most accepted view seems to be that   of Rabbi Yochanan who learns it from the passuk וביום השמיני ימול, (on the eight’s day he shall be circumcised), the derasha being “even on shabbos.”
The later is also derived from a similar דרשה- “בשר אע”פ שיש שם בהרת ” but there is also a view that it is because the positive command of performing a bris pushes aside the negative command of cutting off a leprous lesion,  
This in turn, together with the permission to wear linen tzitzit on a woolen garment or vice versa, seems to serve as examples of  a general rule by which a positive mitzva pushes aside a negative one – עשה דוחה לא תעשה (see the  long sugya in the beginning of Yevamos for a more detailed discussion regarding the source for and parameters of this rule.)
There is, however, another commonly applied rule, which seems to state the complete opposite, and that is the rule of מצוה הבאה בעבירה (A mitzva that comes in/with/from a sin.)
The most famous example of this is found in the Mishna (Sukkah 29b) where we are told that a stolen Lulav is not fit for fulfilling the Mitzva.
Not only does one get punished for stealing the Lulav, but one also does not get the reward for taking the Lulav- not only do the ends NOT justify the means, the means invalidate the end!
Why does one simply not apply the former principle of עשה דוחה לא תעשה  and say that the positive commandment to take the Lulav pushes aside the prohibition of stealing, not only validating the ends (the mitzva of Lulav,) but also the means (stealing it.)
The most obvious distinction can also be found on our daf.
The Gemara is dealing with a case where a person wants to perform service in the Temple but is impure due to a leprous lesion.
It wants to know why the rule of עשה דוחה לא תעשה cannot be applied to allow him to remove the relevant lesion in order to fulfil the mitzva of the divine service.
  Rav Ashi answers that the rule of עשה דוחה לא תעשה only applies when one transgresses the prohibition at the SAME time as one performs the Mitzva.
The logic might be that an action needs to be defined one way or another as either something positive or something negative.
The Chidush (novelty) of this rule is that when ONE action contains both a Mitzva and an aveira, the action is defined as positive, based on the mitzva, rather than negative, based on the aveira.
However, where two separate actions are involved and the prohibition does not take place simultaneously with the mitzva but rather beforehand, like in this case where a person first removes a lesion in order to later be able to perform the service, this reasoning does not apply, and the original prohibition cannot be permitted.
It thus follows from the chiddush of מצוה הבאה בעבירה  that seeing as the original prohibition was not permitted at all, the mitzva that is fulfilled later as a result of the prohibition is also not considered a mitzva at all.
Similarly in our case, seeing as the Lulav is first stolen and only used afterwards for the mitzva, the rule of עשה דוחה לא תעשה  does not apply, and the rule of מצוה הבאה בעבירה  then comes and invalidates even the mitzva.
The problem with this approach is that it could technically be possible to perform the mitzva of lulav at the same time as he steals it.
If one grabs a Lulav from someone on Sukkot and at the same time as  he makes the קנין גזילה   (symbolic act that affects the transaction, in this case giving it the status of a stolen object,) he has intention to fulfil the mitzva of taking it, the rule of עשה דוחה לא תעשה  should surely apply?
Perhaps the answer lies in another rule we have learnt on our daf, namely the reason the Gemara itself has issues with deriving the permission to perform a bris on the site of a leprous lesion: אין עשה דוחה לא תעשה ועשה – a positive commandment can not push aside a prohibition which also involves a positive commandment.
In the case of stealing, there is not only the negative commandment against stealing, there is also the positive command to return whatever one has stolen.
So long as one is still in possession of stolen property, one has not only transgressed the prohibition of stealing, but has avoided the command to return it.
If a person steals a lulav and simultaneously takes it, he is not only transgressing the prohibition of stealing the Lulav- he is also avoiding the Mitzva of returning it.
Thus the rule of עשה דוחה לא תעשה cannot possibly apply, and the rule of מצוה הבאה בעבירה prevents one from fulfilling the Mitzva.
 
In truth, The rule of מצוה הבאה בעבירה also seems to be found in other cases where the prohibition is performed at the same time as the Mitzva.
For example, one who eats מצה של טבל (matza from untithed produce) on Pesach, one  does not fulfill the Mitzva of eating matza, even though the prohibition of eating untithed produce has been performed simultaneously with the mitzva )Pesachim 35a)
However, the Gemara brings a separate passuk to prove this, and although our argument could possibly also be applied to the case of  טבל too, seeing as there is also a positive mitzva to separate the various tithes, we will leave that till Pesachim bli neder.
All this is on the level of technical halachik pilpul.
Yet on an ethical level, the fact that we clearly do not apply the rule of עשה דוחה לא תעשה to stealing, or as far as I am aware, other מצות בין אדם לחבירו can easily be understood.
It is one thing to trade-off one mitzva with another when both are between man and Hashem.
However, if your mitzva will be at the expense of someone else, this goes against the very idea of what mitzvot are supposed to accomplish and is also a tremendous Chillul Hashem.
On such things, Hashem says “”חדשיכם ומועדיכם שנאה נפשי (my soul has hated your new-moons and your festivals- Yeshayahu 1/14/)
Going into the 9 days, this message is more relevant than ever.
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 121 מלאכה שאינה צריכה לגופא ,dangers to safety, and the foolish Chasid

One of the most far-reaching disputes amongst the Tannaim (sages of the Mishnaic period) regarding the laws of Shabbos is regarding מלאכה שאינה צריכה לגופא ,literally a melacha done for a purpose other than the improvement of the object of the melacha, but usually understood by extension to refer to melacha done for a purpose other than the purpose it was done for in the work of the mishkan.
Unlike דבר שאין מתכוין, where there is no intention to perform the forbidden act at all, here the action is performed completely intentionally, but for a different purpose.
A classic example is where someone takes a dead body out of one’s domain on shabbos (Shabbos 93a)
This constitutes the forbidden melacha of הוצאה (“carrying” or transferring an item from one domain to another.)
However, in this case, the corpse in not removed because one wants it to be somewhere else, it is removed because one does NOT want it to be where it currently is.
In such a case, Rabbi Yehuda holds that he is biblically liable still, but Rabbi Shimon holds that one is exempt on a biblical level and has only transgressed a rabbinical prohibition.
Another classic example is someone who digs a hole in the ground (Shabbos 73b). This constitutes the melacha of חופר (ploughing), which is usually defined as making the ground more suitable for planting.
What happens, however, if a person digs a hole, not because he wants the resulting hole, but because he wants to make use of the dust or sand which he digs up?
According to Rabbi Yehuda, the purpose of the melacha makes no difference, so long as it is constructive, whereas according to Rabbi Shimon, although such an action is rabbinically forbidden, there is no biblical prohibition and one is thus exempt from the harsh biblical punishment associated with it. (note that when the hold is made inside one’s home, the Gemara opines that even Rabbi Yehuda exempts the person seeing as it is מקלקל. This seems to imply that if an action itself is destructive, even if it has a constructive purpose, one is still biblically exempt, which is rather problematic in light of the fact that some מלאכות such as making a wound, knocking down a building, or tearing are by definition destructive, but still biblically forbidden seeing as there main purpose is constructive. But this is for a different discussion (see Shabbos 31b regarding סותר על מנת לבנות במקום אחר for a possible approach)
It is generally understood (see Chagiga 10b where this is explicit) that this is another example of the exemption of מלאכת מחשבת, significant and calculated work – in this case the different purpose of the action reduces the significance or importance of the action , seeing as had it been done in the mishkan for such a purpose, it would not have been a significant part of the work performed there.

Another classic example of מלאכה שאינה צריכה לגופא is most cases of extinguishing a flame or a fire.
We should all be familiar with the famous Mishna said every shabbos evening )Shabbos 29b,) which records the view of Rabbi Yossi that one is only liable for extinguishing a flame if he does it for the wick itself, in order to make it easier to burn .
In contrast, extinguishing a fire simply because one wants it to be dark, or because one does not want to waste the oil or blacken the lamp, is only a rabbinical prohibition.
It is important to note that the תנא קמא (first opinion) in the same Mishna holds that one is biblically liable for such an action and is only exempt if it was done to prevent actual danger.
This aligns the view of the Tana Kama with that of Rabbi Yehuda, and Rabbi Yossi with Rabbi Shimon.
As it is a well known rule of psak, stated by the authoritative Amora Rabbi Yochanan, that the Halacha usually follows a סתם משנה (anonymous Mishna where no dissenting opinion is recorded,) finding such a Mishna which takes a stand on this subject could be a major factor in how we rule.
On this daf, we have at least 3 different examples of what appears to be מלאכה שאינה צריכה לגופא.
In the first Mishna on the daf, which is indeed a סתם משנה , we are told that it is forbidden to actively ask a non-Jew to extinguish a fire, but one does not have to stop him from doing so.
As the reason for the extinguishing the fire is clearly to save one’s property, and not for the wick, this seems to be a clear case of מלאכה שאינה צריכא לגופא.
If the author of our Mishna held that מלאכה שאינה צריכה לגופא is only a rabbinical prohibition, it seems rather harsh that he would forbidden asking a non- Jew to do this, giving the principle of שבות דשבות that we have discussed many times, which allows one to ask a non-Jew to perform a rabbinically forbidden melacha for the sake of a mitzva, great need, or distress.
There are very few greater needs than preventing one’s house from burning down chalila, and it would certainly be a severe form of distress if it did so.
One is forced to conclude that either the author of this Mishna holds that מלאכה שאינה צריכא לגופא is a biblical prohibition, or that he rejects the entire principle of שבות דשבות as stated.
Indeed, the Rambam, (Shabbos 1/7) rules like Rabbi Yehuda that מלאכה שאינה צריכה לגופא is a biblical transgression, and this Mishna might be one of his main sources for this.
In contrast, Rabbeinu Chananel, Raavad, Tosfos and many other authorities hold that מלאכה שאינה צריכה לגופא is only a rabbinical prohibition.
Accordingly, Tosfos on our daf states clearly that there is indeed no blanket permission for a שבות דשבות even for the sake of a mitzva or great need,(presumably he holds that the example we learn this leniency from in the gemara, namely bris milah, is an exception due to the fundamental uniqueness of this mitzva.)
Yet it is the view of many other authorities, as well as that of the Shulchan Aruch and Rema, that מלאכה שאינה צריכה לגופא is indeed only rabbinical, and that the leniency of שבות דשבות applies across the board, at least when the rabbinical action is performed by a non-Jew.
As such, in order to explain this Mishna, we would need to either

  1. find another equally authoritative Mishna that holds that מלאכה שאינה צריכה לגופא is only rabbinical
  2. Conclude that even according to Rabbi Shimon who holds that מלאכה שאינה צריכה לגופא is only rabbinical, it is more severe than most rabbinical prohibitions and the leniency of שבות דשבות does not apply to it.
  3. Conclude that the author of our Mishna does not consider extinguishing a fire to save property to be מלאכה שאינה צריכא לגופא, in contrast to the explicit view of Rabbi Yossi who does.
  4. Explain why Chazal where particularly strict in the case of our Mishna

In the next Mishna on the daf, we are told among other things that it is permitted to trap a scorpion on shabbos to prevent it from biting by covering it with a vessel.
However, the Mishna then states that such a case was brought in front of Rabban Yochanan ben Zakai and he expressed his concern that shabbos might have been desecrated unknowingly.
As it is obvious that if this was a poisonous scorpion that was likely to bite him, no one would argue that covering it was forbidden, it seems clear that we are talking about a non-toxic scorpion, and the basis of the Tana Kama’s leniency is that one does not want the scorpion, but merely to prevent it from damaging.
This makes it מלאכה שאינה צריכה לגופא, and given that it is only rabbinically prohibited in the first place, the Tana Kama permits it in order to prevent the pain inflict by a bite.
If this analysis is correct, we could be faced with another two Tannaim debating the status of מלאכה שאינה צריכא לגופא.

On the second side of the daf, the Amora (sage of the Talmudic period,) Rabbi Yehoshua ben Levi rules that any creature that causes damage may be killed on shabbos. Rav Yosef quotes a Beraisa that mentions 5 specifically dangerous creatures (one of them being the snake of Eretz Yisroel- probably the venomous Palestinian viper that is ironically a protected species despite the danger it poises to residents.)
He derives from this that other creatures that cause damage but are not life-threatening may not be killed on shabbos, which serves to disprove the lenient ruling of Rabbi Yehoshua ben Levi.
Rav Yosef reconciles these two statements by saying that everyone agrees that if a life-threatening creature is running towards him, poising an immediate danger, one may kill it.
In such a case, even Rabbi Yehuda agrees that it is permitted to kill them due to concerns for pikuach nefesh.
When it comes to other non-life-threatening creatures that nevertheless cause damage (such as biting,) Rabbi Yehuda would forbid it but Rabbi Shimon would permit it, seeing as it is מלאכה שאינה צריכה לגופא , which according to him is only rabbinically forbidden, and thus permitted to prevent damage. (see Rashi and Tosfos though for 2 different ways of understanding the Gemara’s answer.)
We have shown how 3 different cases on our daf form essential primary material in the analysis of the law regarding מלאכה שאינה צריכא לגופא, and its scope- the actual halacha is beyond the scope of this post, but familiar to any serious student of hilchos Shabbos.
In addition to its ramifications for this principle, this sugya seems to imply that although the golden rule with matters of pikuach nefesh is that ספק נפשות להקיל, in case of doubt, one always errs on the side of caution, this rule does have certain limits and the perceived danger to life does have to be more than just the realm of the paranoid.
This is further illustrated in the continuation of the sugya.
The Gemara tells how a Tana(in this context, reader of Beraitot, not someone from the tannaic period) taught a Beraita in front of Rabbah bar Rav Huna:
“One who kills snakes and scorpions on shabbos, the spirit of the Chasidim (pious ones) is not at peace with (does not approve.)”
Rabbah bar Rav Huna retorted that if this is the case, the spirit of the sages is not at peace with those Chasidim! (seeing as they were being stringent in the laws of shabbos at the expense of concern for safety!)
This reminds of the case of the חסיד שוטה, the foolish pious person, who sees a woman drowning and refuses to save her because it is not modest to look at her (Sotah 21b.)
Yet, for an entirely different reason, Rav Huna disagrees in this case.
The Gemara accounts how he once saw someone killing a wasp on shabbos, presumably for the above reason, and rebuked him, saying “Have you finished killing them all?”
Rav Huna seems to be of the view that given that there is no end to how many insects one can spend one’s shabbos killing, and the efficacy of each act in itself is doubtful, this is outside the normal concern of pikuach nefesh and in the realm of paranoia.
Once again, it is not our mandate here to come to halachik conclusions, but the basic messages of this incident need to be internalized – On the one hand, being concerned about other prohibitions at the expense of danger to life is considered “foolish piety” and not to be tolerated. On the other hand, we need to be able to distinguish between real, albeit small, concerns for life and actions with a reasonable chance of mitigating that risk, and obsessive paranoia with little efficacy.

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.)

PINCHAS, YEHOSHUA, AND YIRMIYAHU- DON’T TAKE ERETZ-YISRAEL FOR GRANTED.

 
the Haftara for Parshas Pinchas is normally about Eliyahu, for well-known reasons.
 
Yet, when it falls after 17 Tammuz, we read from the first chapter of Yirmiyahu instead, to fit the sad theme of this time of year.
 
Yet there is also a very strong connection between the Parsha itself and the Haftara from Yirmiyahu.
 
The first chapter of Yirmiyahu deals with his sanctification as a Navi. In Parshas Pinchas, Yehoshua is sanctified as a Navi in place of Moshe Rabbenu.
 
It cannot be coincidental that Yehoshua is the one who took us into Eretz-Yisrael , and Yirmiyahu is the one who, in his prophecies of punishment, took us out into exile.
 
During this period of time, the message is stark: We cannot take Eretz-Yisrael for granted- our rights to it are completely determined on whether we keep our part of the deal.
 
At the same time as we meet Yehoshua, we also meet Yirmiyahu, and its is up to us to decide, whose message will be fulfilled in our day.