The Mishna on daf 64a describes how the Kohanim were divided into 3 different shifts for offering up the קרבן פסח in order to prevent overcrowding.
When the first group was full, נעלו דלתות העזרה (they locked the doors of the courtyard.)
On daf 64b, Aba opines that the correct גירסא (wording) of the Mishna is “ננעלו” (“were locked”-or that is at least what was meant by the Mishna.)
This implies that the doors were miraculous locked when occupancy was full.
Rava, in contrast, upholds the reading of the Mishna in front of us, and insists that people locked the doors.
The Gemara understands this as a debate between Abaya and Rava regarding whether we rely on miracles.
According to Abaya, people kept entering until the doors locked by themselves, relying on the expected miracle to keep them from the dangers of overcrowding.
In contrast, Rava holds that we do not rely on such miracles, and that people actively locked the doors.
Although it might seem from here that Abaya believes that it is permitted to rely on miracles, it is possible that this was only in the בית המקדש where miracles were the norm.
In fact, the Gemara on our daf later quotes a Beraisa that says that there was only one case in history when a person was harmed by the crowding in the Beis haMikdash!
Further, The Mishna (Avos 5/5) lists no less than 10 miracles that regularly took place in the בית המקדש , which I have attempted to translate as follows:
No woman miscarried from the smell of the sanctified meat.
The sanctified meat never became rotten.
A fly was never seen in the slaughterhouse.
The Kohain Gadol never had a seminal emission on Yom-Kippur.
The rain never extinguished the fire on the altar.
The wind never prevailed over the pillar of smoke.
A disqualifying property was never found in the Omer, two loaves, or show bread.
People stood crowded but had plenty space to bow.
A snake or scorpion never caused damage in Jerusalem.
No one ever said that he felt claustrophobic in Jerusalem .
Whereas most or perhaps all of this miracles could be considered natural miracles that though unlikely, do not involve that which is impossible according to the laws of nature, it is certainly clear from here that the בית המקדש was not comparable to anywhere else when it comes to the frequency of miracles, and even if a supernatural miracle such as doors automatically closing occurred there regularly enough that it could be relied upon, one can certainly not conclude from there that Abaya would condone relying on miracles anywhere else.
Although there is a concept that Torah and Mitzvos offer a degree of protection (see Sotah 21a and post on Pesachim 8) it is clear that where the danger is common or definitely present, one may not rely on that protection even while fulfilling a mitzva (Pesachim 8.)
Although Rabbi Yehoshua ben Levi took the rather extreme step of learning next to people who were afflicted with רעתן (a terrible contagious disease) relying on this protective power (Kesubos 77b), most Amoraim were particular to keep their distance, and if that was the case with some of the greatest Amoraim, it follows that this is certainly the case for all of us, whose stature does not compare to theirs.
Returning to our daf, we should note that Rava appears to hold that relying on miracles is not acceptable where a common danger is present, even in the בית המקדש where miracles were so common, AND even though it was during the fulfillment of one of the greatest mitzvos!
We should also note that with only 6 exceptions (see Bava Metzia 22b ) the halacha usually follows Rava in his disputes with Abaya.
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.
The Opening Mishna of our new perek lists the various מלאכות that form part of the process of the קרבן פסח that override Shabbos.
These include slaughtering it, sprinkling its blood, מחוי קרביו (cleaning the insides), and burning its fat, but not roasting it or rinsing the insides-Rashi explains that the later two can done after dark on Pesach night itself and thus do not override the shabbos laws.
Furthermore, the Tana Kama rules that הרכבתו (carry it on one’s shoulders), bringing it from outside the techum, or cutting a יבולת (wart) off it may not be done on shabbos.
Rabbi Eliezer, however, attempts to learn by way of קל וחומר that if מלאכה דאורייתא is pushed aside by the קרבן פסח , surely a שבות should be.
Rashi explains the view of the Tanna Kama, later expressed by Rabbi Akiva, that although these are all only שבותים (rabbinical prohibitions- see inside for why,) they could have been done before shabbos and are thus not permitted, an explanation Rabbi Akiva himself gives after some back and forth which itself requires further analysis.
It should be noted that although we have indeed seen places where a שבות is treated more stringently than a מצוה דאורייתא in order that people should not make light of it (see my post of Eruvin 2 for sources and some discussion), neither Rabbi Eliezer nor Rabbi Akiva appear to apply this argument to our discussion.
This seems consistent with what appears to be the default principle that biblical prohibitions are to be treated more seriously than rabbinical ones, in the absence of Chazal ruling to the contrary, something which itself is subject to much discussion and analysis.
The Gemara on daf 66 opens by relating how the בני בתירה had forgotten the rule that the קרבן פסח pushes aside the laws of shabbos, as per the above Mishna.
Hillel then proceeded to prove it to them by way of גזירה שוה based on the word “במועדו” which is used both by the תמיד and the פסח- just like the תמיד pushes aside the laws of shabbos, so does קרבן פסח.
He then adds that this can also be derived by means of a קל וחומר- if a regular תמיד which does not cause one who fails to bring it to be liable to כרת overrides shabbos, surely the קרבן פסח whose neglect brings about כרת should do so.
The Gemara asks how we know that the תמיד itself may be offered on shabbos, and concludes that we learn this from the passuk “עולת שבת בשבתו על עולת התמיד ונסכה”( “ The burnt-offering of Shabbos on its Shabbos, in addition to the regular burnt-offering” – Bamidbar 28/10), which clearly implies that the regular burnt-offering (תמיד) is offered even on Shabbos.
The Gemara then ask how Hillel could base himself on the קל וחומר when the logical argument is flawed- the תמיד is תדיר (regular) and is also a burnt offering, the holiest type of sacrifice which is completely burnt whereas the קרבן פסח is only once a year and is eaten by the owners!
Although the קרבן פסח is taken more seriously regarding punishment, the תמיד is taken more seriously in other ways and the former can thus not be said to be objectively more important than the later.
It answers that the קל וחומר was actually argued first, and when the בני בתירה countered its logic as per the above argument, he then presented the גזירה שוה.
Unlike a קל וחומר argument, which any sage could make based on his own logic but could also be countered by another sage’s logic, a גזירה שוה is based not on logic (at least alone) but on מסורת (tradition.)
A sage may not simply derive anything he wishes from a גזירה שוה, but may only apply a גזירה שוה which he has received from his teacher as part of the oral tradition (see Rashi ד”ה “וכי מאחר” for his precise explanation of this rule, which we shall hopefully be able to revisit in a later post.)
This limitation also gives it an advantage, in that a countering logical argument cannot push It aside.
The Gemara explains that despite this advantage, Hillel initially preferred to use the קל וחומר argument , seeing as his contemporaries could retort that they not received this גזירה שוה by way of tradition like he had- only once the קל וחומר failed, did he resort to the גזירה שוה.
Although the Mishna clearly holds like Hillel, it remains unclear if and how he was able to convince the בני בתירה of this, given that they had countered the logic in the קל וחומר and also did not have the גזירה שוה as part of their tradition.
Are we to learn from this event that even if a certain sage has not received a גזירה שוה from his Rabbi, once another sage has revealed a גזירה שוה to them from his מסורות, they are also to accept it?
If so, why was Hillel initially reluctant to use this גזירה שוה?
On the other hand, if those sages are not required to accept a גזירה שוה revealed by a colleague, of what help was the גזירה שוה in advancing Hillel’s argument at the end?
The Gemara on daf 66b returns to discussing the relative weight of a שבות as compared to aמלאכה דאורייתא and asks whether a melacha may be performed כלאחר יד (in a back-handed or unusual manner) for the sake of a mitzva.
The specific case discussed is what happens if one forgot to bring the knife needed for the שחיטה before Shabbos, seeing as this is not one of the things one is permitted to do on shabbos for the sake of the קרבן.
On the previous amud, we learnt that Hillel and his teachers, Shmaya and Avtalyon, had permitted sticking the knife required for the שחיטה in the wool or hair of the animal so that it is carried by the animal and not by a person.
The Gemara queries this for various reasons, among them the fact that it is biblically forbidden to perform an action which causes one’s animal to carry something for him on shabbos (מחמר).
It answers that this is מחמר כלאחר יד , an unusual way of getting an animal to carry something,and Rashi explains that this is because a lamb is not usually used for carrying things (like a donkey or camel are.)
The Gemara counters that מחמר כלאחר יד is still forbidden on a rabbinical level, and answers that this is precisely the question that had been asked of Hillel.
As its wording seems rather cryptic, I choose to quote the original Aramaic:
דבר שיש לו התיר מין התורה ודבר שבות עומד לפניו לעקרו כלאחר יד במקום מצוה מאי?
Something which is permitted on a biblical level and a rabbinical prohibition stands in its way- may one up-route it in a back-handed manner for the sake of a mitzva?
Although the precise wording seems to be referring to performing a שבות in a backhanded manner, closer to what we often referred to in halacha as a שבות דשבות לדבר מצוה, the comparison drawn to our case seems to be referring to performing a מלאכה דאורייתא with a שנוי for the sake of a mitzva, which would be a far more drastic leniency.
The answer he gave, as quoted on the previous amud was in the affirmative – הנח להם לישראל אם לא נביאים הם בני נביאים הם!
May one derive from here that any שבות may be performed for the sake of the mitzva?
It seems clear from the Mishna (according to Rabbi Akiva) that it certainly may not, even for the sake of a קרבן פסח, at least if it could have been done before Yom-Tov.
As such, this leniency needs to be applied less broadly, perhaps specifically to the שבות of כלאחר יד .
Rashi (ד”ה שיש לו התיר) , explicitly notes this distinction and explains that doing something כלאחר יד is less severe than other שבותים, seeing as it is (relatively) uncommon (Chazal usually only make their decrees in cases that are common!)
In contrast, the Tosfos do not appear to make this distinction, and query how this could be permitted, seeing that it is clear from the Mishna that even a שבות may not be done for the sake of the mitzva of korban pesach if it could have been performed before Yom-Tov.
Whereas Rashi’s distinction would render their query rather mute, the Tosfos suggest a different distinction, namely between a שבות performed by a Jew and one performed by his animal- only the later is permitted for the sake of a mitzva-a distinction that appears to fit less into the actual wording of the question asked to Hillel, where no mention of an animal is made.
There could be a major נפקא מינה (practical ramification) between these two distinctions:
According to Rashi, it seems to follow that ANY melacha may be performed כלאחר יד/ with a שנוי for the sake of a mitzva but no other שבות is permitted (except perhaps in the case of a שבות דשבות.)
In contrast , according to Tosfos, it seems like ANY שבות might be performed by one’s animal for the sake of a mitzva, but not even כלאחר יד is permitted by a Jew himself even for such a purpose.
Although this seems the most precise conclusion, given that the Gemara mentions “for the sake of a mitzva” in general and does not limit its version of the question asked to Hillel to the case at hand, it is also possible that both Rashi and Tosfos would limit their respective interpretations of this leniency to a mitzva of the stature of קרבן פסח, however that is defined, which sometimes pushes aside even severe biblical restrictions such the laws of shabbos, and not any other mitzva!
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.
In loving memory of our dear friends, Judith Ginsburg and Ian Shapiro of blessed memory, who were both recently taken by the cursed COVID-19 plagues, as well as that pillar of the South Africa and world Jewish community, the great philanthropist and איש חסד, Eric Samson of blessed memory, who passed away yesterday in Los Angeles.
In an all-encompassing field such as halacha, it is inevitable that at times, one value will clash with another, and it is reasonable to assume that the halacha itself provides solutions for such a clash.
One of the rules we have seen is the principle of עשה דוחה לא תעשה – a positive mitzva pushes aside a negative one (Yevamos from 3a.)
Although the basis behind this rule requires much analysis, one approach seems to be that when one action involves both a prohibition and a positive mitzva, we define the act based on the positive mitzva and not based on the prohibition.
For example, the act of circumcision when the 8’th day falls on shabbos involves a prohibition against melacha on Shabbos, as well as the mitzva of circumcision, and this rule tells us that the positive mitzva of circumcision pushes aside the prohibition of melacha on shabbos, and the act is performed.
Where a garment is made out of linen and the tzitzit are made out of wool, the same principle tells us that the act of wearing is defined by the positive mitzva of tzitzit and not by the prohibition of wearing shaatnez.
On the other hand, a different principle tells us that the ends does not always justify the means- for example, one may not fulfil the mitzva of the 4 species on Sukkot if they have been stolen- this would be considered a מצוה הבאה בעבירה (a mitzva that comes/came with/through a sin), another rule requiring more precise definition.
On our dapim, we encounter another principle that relates to clashes between mitzvos, this time when one positive mitzva clashes with another.
There is a positive mitzva, known as עשה דהשלמה , which states that the תמיד של בין הערביים (regular afternoon sacrifice) should be the last sacrifice of the day, with the notable exceptions of the נרות (evening candles) the evening קטורת (incense), and the קרבן פסח (pesach offering.)
Yet there are times when someone might need to offer a different sacrifice after the afternoon offering has already been made, in order to be declared fit again to eat the קרבן פסח .
For example, a מצורע (leper) might need to still bring his final offerings that afternoon, without which he would not be permitted to eat his קרבן פסח .
The same might apply to one who needs to eat a קרבן שלמים (peace offering) that he has brought.
Here, there is no blanket permission to actively be מבטל מצות עשה (nullify a positive mitzva) in order to actively fulfill another.
Yet there are cases where due to the greater status of the one commandment, the other will take priority.
The Gemara on 59a brings a Beraisa which tells us that a מצורע (leper) who needs to bring his final sacrifices to clear him to fulfill the command of eating the korban pesach, one of the only two positive mitzvot that one incurs the severe punishment of כרת for neglecting to perform, the more severe commandment to eat the korban pesach pushes aside the requirement for the regular afternoon sacrifice to be the last non-Pesach sacrifice of the day!
The same Beraisa, however, also gave permission any time to a regular impure person on any evening of the year to bring his outstanding sacrifice after the תמיד של בין-הערביים in order to be able to eat his קרבן שלמים that needs to be eaten that night!
The Gemara notes that seeing as refraining from eating these sacrifices is not subject to the same severe terms, they should not in and of themselves be enough to push away the עשה דהשלמה.
The Gemara thus qualifies the later permission to be referring to situations where the אסור עשה does not apply, seemingly concluding that only a positive mitzva that involves כרת if not performed may push aside another positive mitzva (or its related אסור עשה.)
Yet, as mentioned above, there are other times when a positive mitzva pushes aside another one, among them:
The laws of mourning (even the biblical ones on the first day) do not apply on Chol-hamoed, as the obligation to mourn is pushed off by the obligation to rejoice on the festivals, which is an עשה דרבים (positive command on the public-Moed Katan 14b.)
The prohibition against freeing an עבד כנעני (Caananite slave [in the days when slavery was acceptable]) is derived from the positive mitzva of לעולם בהם תעבודו (you shall work them forever.) Yet, the Gemara (Brachos 47b) tells us how Rabbi Eliezer freed his slave to make a minyan (Brachos 47b), and that it was not considered a מצוה הבאה בעבירה because it was for the sake of a מצוה דרבים (public mitzva.)
We should note that the term עשה דרבים is not used there, probably because making a minyan is only a rabbinical mitzva, but that we see that even a rabbinical mitzva of the public, however that is defined, might push aside an אסור עשה , at least this particular one.
3. There is a similar case of the חצי עבד חצי בן חורין (half slave half free person whose owner is compelled to free him so that he can fulfill the mitzva of פרו ורבו (having children- Gittin 41a) Seeing as the mitzva of פרו ורבו is based on the idea that the world should not become desolate of people, perhaps this is also considered a מצוה דרבים- see Tosfos and other Rishonim on the above sugyos for further discussion.
There is much to discuss about the rule that a more serious mitzva can push aside a less serious one, but I would like to focus on one issue brought up by the Tosfos.
One of the limitations of the rule of עשה דוחה לא תעשה is that one has to perform the לא תעשה at the same time as the עשה .
If the לא תעשה is done before the עשה, then the rule does not apply, its is forbidden, and might also be a מצוה הבאה בעבירה.
This makes sense according to the explanation we brought regarding the dynamics of עשה דוחה לא תעשה.
One can only define an action based on its mitzva component as opposed to its aveira component when they are both components of the same action, forcing one to choose how to define it. In such a case, the Torah teaches us that the mitzva component prevails.
If however, two different actions are involved, then there is no need to choose, and the initial forbidden action cannot become permitted because of a later different “mitzva” action- here we say that the ends do not justify the means.
Assuming the mechanism whereby a more serious positive mitzva pushes aside a less serious one is similar to that of עשה דוחה לא תעשה, one would expect the same limitation to apply, and in the case of mourning on chol hamoed, it indeed could- one is pushing aside one’s obligation to mourn at precisely the same time that he is fulfilling the mitzva of rejoicing on the festival.
Yet in our case, we see that one may bring a sacrifice after the תמיד של בין בערביים in order that one will later be able to fulfill the mitzva of קרבן פסח, even though these do actions are clearly not at the same time!
Tosfos points out that the same applies in the case of freeing the slave in order to make the minyan (as it does while freeing a slave in order for him to be able to have children.)
In truth, one could have explained the case of the slave differently, saying that the very prohibition of freeing a slave only applies if it is not done for the sake of a mitzva, making it different from other אסורי עשה .
From the fact that Tosfos does not do this, we see that he sees the case of the slave not as an exception but as a precedent for any public mitzva pushing aside an אסור עשה, possibly even a rabbinical one, which would be a tremendous חדוש requiring further discussion.
In any case, in our case, there is no possibility of such an explanation, and Tosfos concludes that when it comes to situations where we do apply the rule of עשה דוחה עשה, the limitation that the two need to take place simultaneously does not apply. This is because unlike its “sister” principle where a positive mitzva pushes off a negative mitzva which is generally treated as more severe than a positive mitzva, in this case it is the more serious mitzva which is pushing off the less serious one.
It is clear that even if Tosfos would accept the “lomdus” in עשה דוחה לא תעשה that we have discussed, this same mechanism could not explain the principle of עשה דוחה עשה , making them two unrelated principles, rather than “sister principles” as we assumed!
It remains for us to suggest an alternative explanation for the dynamics of at least this second principle!
Hopefully we shall have a chance in the future to do precisely that.
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.
In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l, whose love of Torah, passion for justice, and acts of kindness inspire everything I do.
Much of modern Jewish practise involves extra-halachik customs which have developed between the time of the Gemara and now, and a thorough analysis of the scope and authority of such “minhagim” is required.
Whereas the authority of rabbinic law is based on biblical law, the authority of customs taken on by an individual, family, or community seemingly lack this strong grounding, and needs to be sourced and defined.
In the opening Mishna of chapter 4, we see that at least certain types of minhagim are grounded in rabbinic law.
The Mishna takes for granted the prohibition of performing work after midday on Pesach eve (a discussion in its own right) and discusses the custom followed in some places to forbid it even before midday, ruling that each place needs to follow its own minhag in this regard.
It then addresses an individual who comes from a place with one custom, who is currently in a place with a different custom.
Here, the ruling is that a person must keep the stringencies of his place of origin as well as those of the place he is currently in.
That means that such a person will need to avoid work on erev pesach either way, either because that is the custom of the place which he came from, or because it is the custom of the place where he currently is- both customs are binding on him.
The Mishna then adds that one should never act differently to the מנהג המקום (the custom of the place where one is ) because of מחלוקת (conflict.)
An initial analysis of this case in the Mishna reveals that
No mention is made as to whether the relocation is temporary, as in a visit, or permanent.
There seems to be an inherent contradiction between the need to keep the stringencies of both places, and the need not to act contrary to the customs of the place one is in. For example, if a person comes from a place where work is not done the whole day to a place where it is done before midday:
The first rule implies that one must refrain from work in deference to his own custom
The second rule implies that one should not refrain from work in order not to “stick out.”
The case in the Mishna refers to a stringency practiced in a certain place. In cases where an actual rabbinic prohibition applies in one place and not in another, or where one place follows a different opinion regarding the עיקר הדין (actual law) that the other, it is not clear yet whether the same principles apply.
When one examines the סיפא (last case) of the Mishna, one sees that this principle applies to a related though possibly different situation too.
This case revolves around the prohibition of eating produce of the שמיטה (sabbatical year) after that species is no longer available in the fields, before performing a procedure called בעור (removal.)
The Mishna rules that if one takes such produce from a place where it is no longer available in the fields to a place where it is still available or vice versa, he must be stringent and perform בעור, in deference to either the practise in the place from whence he came or to the practise in his current location.
In this case, it is not simply a question of one locale taking on a certain stringency and not the other.
Here, the עיקר הדין requires those in the one locale to perform בעור on that specific species, whereas there is absolutely no reason for those in the other locale to do so yet.
One can also note that if the produce comes from a place where בעור is already required, the obligation might have already fallen on the produce ( in Brisker terms חיוב הבעור כבר חל על החפצא.)
Yet despite these essential distinctions, the same principle seems to apply, something we will hopefully return to in later posts.
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At the bottom of Daf 50, the Gemara discusses a different custom.
The people of ביישן had the custom to avoid sailing from the port of צור to the port of צידון on erev shabbos, despite their proximity and the commercial need for them to be there for the market day in צידון.
This was clearly an extra stringency not required by law, and Rashi explains that this was to avoid neglecting their shabbos preparations.
The next generation approached Rabbi Yochanan asking him to let them off this stringency, seeing as unlike their fathers, they were unable to cope with it.
He answered that their fathers had already accepted this stringency, and it was binding upon them, based on the verse “שמע בני מסור אביך ואל תיטוש תורת אימך” (Mishlei 11- “Hear my son the “Mussar” of your father and do not forsake the Torah of your mother.”)
Unlike the case in the Mishna, which deals with מנהג המקום (the customs of the place,) this case seems to be an example of מנהג המשפחה (a family custom.)
Despite the above, it is not immediately clear whether this ruling applies only while they continued to live in ביישן, or whether they would still be bound by it even after moving to a different place with no such stringency.
The Gemara moves on to discuss a different custom, this time a stringency of the people of חוזאי, who used to separate חלה from rice.
When Rav Yosef was told about this, he ruled that a זר (non kohain( should deliberately eat it in front of them (to make the point that חלה taken from rice is NOT חלה!)
We are immediately faced with the question why this is different to any other מנהג המקום (local custom) which needs to be respected, as in the previous cases we have discussed.
Abaya questions Rav Yosef’s ruling based not on our Mishna or the case with Rabbi Yochanan, but on a related halachik principle.
This is the rule of “דברים המותרים ואחרים נהגו בהן אסור אי אתה רשאי להתירן בפניהם” – permitted things that others have forbidden to themselves may not be permitted by you in front of them.
As such, how could Rav Yosef permit a non-kohain to eat what the people of this town treated as חלה in front of them?
Rav Yosef responded that Rav Chisda had already ruled that the above principle only applied to כותאי (Samaritans,) who already made light of rabbinic law and who might be led to further leniency by such actions, to which Abaya retorted that these people were like כותאי – Rashi explains that this was due to their ignorance.
Due to the above, Rav Ashi qualifies Rav Yosef’s ruling to only apply to a place where most of the people eat grain products.
In such a case, the concern that allowing a non-kohain to eat the rice “חלה” In front of them would cause them to practise further unjustified leniency is mitigated by the risk that they would land up using rice as חלה for grain, a very serious action which would result in them eating טבל.
As such, this was a stringency that could lead to sin, and needed to be crushed!
However, in a place where most people ate rice and there was no such concern, one should not undermine their stringency, as it had the benefit of helping them remember the laws of challah!
At first glance, this seems to be a typical example of stringency not required by law. However, it is also possible that their “minhag” was to follow the halachik opinion of רבי יוחנן בן נורי who considered rice to be a form of grain (Pesachim 35a), which would make this an example of a custom to follow an already existing stringent halachic opinion, not just a new practise without halachic precedent.
The Gemara proceeds to bring 3 other examples of minhagim where the rule of דברים המותרים… applies, pointing out that all 3 cases involved בני מדינת הים (“overseas” people) who due to their lack of proximity to Torah centers, were also ignorant and treated like כותאי regarding this law.
It seems clear that whereas no distinction is made between ignorant and learned people in the case of our Mishna and that of בני ביישן, the rule of דברים המותרין is limited to ignorant people, suggesting that two or more very different principles regarding the source and authority of minhagim are at play here, despite the relationship between them implied by their proximity in the sugya.
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The Gemara near the bottom of daf 51a brings yet another example of different customs.
This case revolves around דייתרא , a kind of fat that was treated as permitted in the land of Israel but not in Bavel.
It relates how רבה בר בר חנה came from Israel to Bavel and continued to eat this fat, in accordance with the custom of Israel.
When רב עוירה סבא and רבה בריה דרב הונא came in, he quickly covered it up, so that they should not see him eating it.
Abaya, understanding that this was due to the rule of דברים המותרים … commented to them that רבה בר בר חנה was obviously treating them like כותאי, further proof that this rule only applies to ignorant people, but also very telling us what standards Abaya believed רבה בר בר חנה applied to the definition of “ignorant” in this regard !
At this point, the Gemara finally relates to the principle of our Mishna and asks how רבה בר בר חנה could ignore the מנהג המקום and eat the דייתרא even while he was by himself.
Whereas the rule of דברים המותרים… only applies לפניהם (in front of those who are stringent,) it seems that the Gemara holds that the rule of the Mishna, namely following the stringencies of both places, applies in private as well.
Whereas Abaya answers differently, Rav Ashi answers that רבה בר בר חנה intended to return to Israel, and in the absence of the concern of דברים המותרים…, the stringencies of Bavel were not yet binding on him!
With this distinction, Rav Ashi shows how he has interpreted the rule of “being bound by the stringencies of the place one has come to” as only applying to one who has relocated permanently.
Until one has permanently relocated, one is not personally bound by the stringencies of the place one is merely visiting, but simply needs to be careful not to “permit them” in front of the locals, if they are ignorant.
It is not immediately clear what the law would be where a person from a stringent locale permanently relocates to a lenient locale .
Would Rav Ashi go so far as to extend the rule that one goes by one’s permanent place of residence even to the leniencies of one’s new place, or would he require one to keep the stringencies of one’s previous abode even after permanently resettling?
The key to this and other unresolved issues that we have raised can be found in other sugyas on the subject, and will hopefully be discussed in our next post, in relation to second day Yom-Tov.
To sum up what we have seen so far, there are various principles on which the authority of minhagim are based:
מנהג המקום (the local minhag) binds all inhabitants (the Mishna.)
One who relocates is bound by the stringencies of his old place and of his current place (the Mishna) but this rule might depend on the nature of one’s relocation (as per Rav Ashi)
One should not act contrary to local practise מפני המחלוקת (the Mishna)
A family minhag can be binding, based on the passuk in Mishlei. (the case of בני ביישן )
Even where one is not bound by local stringency, one should not be lenient in front of the locals, if they are ignorant, due to the rule of דברים המותרים .
The scope, authority, and interaction between these principles has been partly discussed already, and will hopefully continue in the next post, but it is clear that before one is able to define clear rules regarding the types of minhagim that are binding and under what circumstances they are binding, a thorough understanding of the above and any related sugyas needs to be obtained.
Not every custom is binding under all or any circumstances, but the concept of certain customs being binding is well grounded in numerous Talmudic principles.
Given that the prohibition of chametz on pesach is included in the list of איסורי הנאה (prohibitions that one is not allowed to derive any benefit from,) our perek spends considerable time discussing the scope of such prohibitions.
Whereas when it comes to most forbidden foods, the prohibition is limited to the act of eating and when it comes to shabbos and forbidden relationships, specific actions are forbidden, when it comes to this category of prohibitions, benefit itself is prohibited, and this might apply even to benefits that do not involve a specific action (לאו שאין בו נעשה) such as just smelling the fragrant aroma of incense offered for idolatrous purposes.
The central topic of the end of daf 25 and most of daf 26 is the status of הנאה הבאה לאדם בעל כרחיה, benefit which comes to a person “by force.”
Although the Gemara itself does not initially give an example of this, Rashi cites the case mentioned above of a person who walks past a place where incense is being offered for idolatrous purposes and cannot help smelling the fragrant aroma.
Abaya holds that this is permitted, whereas Rava holds that it is forbidden.
Seeing as we are dealing with benefit which is unavoidable, debating whether it is permitted or forbidden seems rather spurious, and it is thus obvious that the debate does not center around someone already in the situation, but whether one is permitted to willingly enter into a situation where one knows that this will or might happen.
Alternatively, the debate could center upon whether a person is required to immediately move away from such a situation the moment he encounters it, even if it means retracing his steps and taking an alternative or possibly longer route to avoid further benefit, or whether one may carry on and pass the area, seeing as the benefit he gets from the smell is forced upon him.
Either way, the Gemara divides the discussion up into 4 different scenarios, which depend on whether it is אפשר (possible) to avoid the benefit or not, and whether one is מתכוין (intends) to derive benefit or not.
The 4 permutations are as follows:
When it is both impossible to avoid the prohibition and one has no intention to derive benefit from it (2 factors in one’s favor)
When it is impossible to avoid the prohibition, but one has intention to derive benefit from it. (1 factor in one’s favor and 1 against)
When it is possible to avoid the prohibition, but one has no intention to derive benefit from it. (1 factor against and one fact in favor)
When it is possible to avoid the prohibition and one has intention to benefit from it. (2 factors against)
The Gemara first claims that everyone would be lenient in the first case, and stringent in the second and fourth cases- in other words, if one has intention to benefit, it is forbidden, whether it is possible to avoid the situation or not, and if one has no intention to benefit AND it is impossible to avoid the situation, they both agree that it is permitted.
The debate is solely focussed on the third case, where it is possible to avoid the situation but one does not intend to derive benefit from the prohibition, and centers around the famous view of Rabbi Shimon (see our various posts on this back in Shabbos) who holds that דבר שאין מתכוין מותר (one is permitted to perform a permitted action even if there is a significant concern that it will be accompanied by a secondary forbidden action.)
The classic example of this principle is his permission for a person to drag a bed, chair, or bench along the ground even though he might dig a ditch while doing so, as long as this is not his intention.
However, as we have seen, it is clear from various sources ( see post on Shabbos 133) that this leniency of Rabbi Shimon’s applies not only to the laws of shabbos but to all areas of halacha.
As such, Abaya argues that seeing as the act of walking to wherever one is going is a permitted action, it remains permitted even though one might transgress the prohibition of benefitting from עבודה זרה (idol-worship) along the way.
Rava, on the other hand, claims that the leniency of Rabbi Shimon is limited to cases where it is impossible to achieve one’s goal without taking the risk, for example if the above-mentioned furniture is too large or heavy to lift.
However, if it is possible to avoid the risk, such as in the case of smaller/less heavy furniture which one can lift, one is required to avoid the risk altogether.
It should be noted that this limitation to Rabbi Shimon’s leniency was suggested elsewhere (Shabbos 29b) and rejected, as it will be later in this sugya, but it is of course important to understand this הוה אמינא (initial thought) as well.
The Gemara immediately brings an איכא דאמרי (alternative version) whereby everyone (in this case both Rabbi Shimon and Rabbi Yehuda [who normally forbids דבר שאין מתכוין ] ) agrees that in the first case, where the situation is unavoidable and one has no intention to benefit, it is permitted, and that in the fourth situation where the situation is avoidable and one has intention to benefit, it is forbidden.
The third scenario where it is possible to avoid the situation, but one has no intention to benefit, is the classic dispute between Rabbi Shimon and Rabbi Yehuda.
According to this version, It is the second scenario, where it is impossible to avoid the situation but one DOES intend to benefit once one is in the situation, which is subject to debate between Abaya and Rava.
According to this version, the debate between Abaya and Rava centers not on the view of Rabbi Shimon, for whom intention is the critical factor and for whom it would thus be clearly forbidden (see Rashi) but on the view of Rabbi Yehuda who seems less concerned with intention and more concerned with whether it is possible to avoid the situation or not.
Abaya claims that just like Rabbi Yehuda makes no distinction in a case where it is possible to avoid the situation between a case when one intends to benefit and a case when one does not, forbidding דבר שאין מתכוין regardless, so also in a case where it is impossible to avoid the situation, he does not care whether one intends to derive an otherwise forbidden side benefit from it, or not, and permits it either way. If this is correct, it would follow that once a person is in an unavoidable situation in which he is forced to derive a forbidden benefit, having conscious intent to enjoy the situation might be permitted, something which seems like a tremendous novelty.
Rava, in contrast, counters that Rabbi Yehuda’s lack of concern for whether one has intention for the forbidden action or benefit or not only applies לחומרה (stringently) to forbid an otherwise permitted act if it could involve a forbidden secondary action or benefit.
However, he certainly does not disregard intention in order to be lenient and permit one to have specific intention to perform a forbidden action or derive a forbidden benefit if one is already in a situation where some benefit is “forced on him.” Although one might not be required to leave the situation, one is certainly not permitted to have intention to derive benefit from it.
After bringing various proof texts for the views of Abaya and Rava (with it being important for us to take note of which version of the debate the proofs seem to assume to be correct,) the Gemara brings a Mishna (Kil’ayim 9/5 ) which permits one to “wear” כלאים (forbidden garments which contain a mixture of wool and linen, also known as שעטנז ) in order to display it to would be non-Jewish buyers, so long as one does not intend to derive warmth or protection from it.
This is despite the fact that one could rather display it from behind, as the צנועים (more “modest” or careful people) would do.
This proves without a doubt that the view that permits דבר שאין מתכוין, namely Rabbi Shimon, permits it even when it is possible to avoid the situation and achieve one’s objective without risking the secondary forbidden action, thus disproving the first version of Rava’s opinion.
Although this case and the proof from it requires its own analysis, it follows that we would either rule like Abaya in the first version, despite the rule that we follow Rava in all but 6 disputes against him (Bava Metzia 22b) or more likely, in order to keep with this rule, that we follow the second version of Rava’s opinion.
Either way, as following the second version of Abaya’s view would unnecessarily go against this rule, this seems like an unlikely possibility.
As such, it seems to be the conclusion of the sugya that scenarios 1 and 3 are clearly permitted (at least according to Rabbi Shimon whom later Amoraim have clearly deemed authoritative )- so long as one has no intention to derive forbidden benefit, even if the situation is avoidable, there is no obligation to avoid it.
On the other hand, in cases 2 and 4, where one has intention to derive forbidden benefit, entering the situation is forbidden, irrespective of whether it is avoidable or not.
Now that we have summarized the flow of the sugya, according to Rashi and the consensus of most Rishonim, it is time to focus on some of the difficulties raised by this sugya.
Semantic Matters
As we have seen, the case of הנאה הבאה לאדם בעל כרחיה (benefit which is forced upon a person) has been divided into 4 scenarios, based on 2 critical factors, namely whether is it possible to avoid the situation and whether one intends to derive the forbidden benefit.
However, the very term בעל כרחיה (by force) seems to exclude a situation where it is possible to avoid the situation, as well as a case where one has intention to derive forbidden benefit.
If one is able to avoid the situation, how can any subsequent benefit be considered “by force?”
Similarly, if when faced with the situation, one consciously has intention to enjoy it, how can that be considered “by force?”
It seems that Rashi and most Rishonim understand that
when referring to אפשר ( the possibility to avoid the situation,) the Gemara means that it is possible to achieve the intended permitted goal (such as reaching one’s destination) by taking an alternative route
Whereas
ii. לא אפשר refers to a situation where it is impossible to achieve one’s otherwise permitted goal without taking the problematic route.
Tosfos and other Rishonim (see for example Ritva in the name of the רא”ה) add that it is also considered לא אפשר (impossible to avoid) if the alternative route or method is longer or requires more effort, time, or money.
“אפשר” , in contrast, is understand to refer to a situation where it is possible to perform one’s intended otherwise permitted task in an equally convenient way that avoids the risk.
Yet even such a case, while forbidden according to the first version of Rava’s view, seems to still be referred to by the Gemara as “by force,” seeing as if he goes on his chosen route, he is forced into encountering the forbidden benefit, an extremely broad definition of “by force” to say the least.
Furthermore, it seems according to Rashi and most other Rishonim (see for example Meiri, though see Ritva for a different view) that קא מכוין refers to one who consciously intends to enjoy the forbidden benefit, and it requires some serious analysis to understand how this could ever be considered “by force.”
One could possibly explain that once a person is forced into a situation where he cannot avoid enjoying a forbidden pleasure, then “giving in” and consciously enjoying it, while probably not permitted, is to a certain extent, still considered to be “forced.”
This could perhaps be compared to a person who is raped but at a certain point, once feeling the pleasure of physical stimulation, gives in and “enjoys it.” (obviously, the plausibility of this depends on the individual and precise circumstances, but such cases certainly seem to exist -a thorough analysis if the sugya in Yevamos 53b of אין אונס לערוה is recommended at this point.)
Whereas the victim might be obligated to try his best to mentally detach himself and avoid deriving pleasure from the physical sensation, it might be harder to condemn him for succumbing and doing so, given that the combination of being forced into the situation and biology make it close to impossible to avoid- even if he is punished for this, as in the case of אונס לערוה (Yevamos 53b,) it might still be called “by force.”- he was simply required to resist the force.
The Ran, however, simply explains that even though one intends to derive benefit, if the benefit is not intended for him (or brought about by him) but comes automatically, it is still called in this context “by force.”
As mentioned above, the Ritva goes to the opposite extreme and says that whenever a person benefits, it is considered intentional, and that לא קא מכוין refers to when the person himself does not (or perhaps believes he will not ) derive pleasure from the forbidden entity, even if many or most people would (why the phrase הנאה is used to describe someone who does not have הנאה requires explanation according to this view.)
These various explanations could have major practical ramifications, but more on that at a later stage hopefully.
פסיק רישיה and הנאה הבאה לאדם בעל כרחיה
One of the issues that bothers the Rishonim is the fact that in our sugya, it seems clear that according to Rabbi Shimon who permits דבר שאין מתכוין, there is no problem walking past a place where there is a pleasant forbidden fragrance.
Likewise, examples are given of sitting in the shade of the Temple’s walls for a derasha and lowering workers into the קדש הקדשים for maintenance even though they will derive forbidden benefit from seeing the inside.
Yet it is made clear in many places that even Rabbi Shimon forbids פסיק רישיה , a situation where the secondary forbidden action (in this case benefit) is inevitable, and it seems pretty much inevitable that a person in these situations will derive some benefit from them.
Whereas the Tosfos choose to assume that all these cases do not involve inevitable benefit (perhaps as different people react differently to certain scents and sights etc) the מהר”ם חאלאוה distinguishes between a forbidden action such as a melacha on shabbos whose completion is not affected by one’s lack of intention, and benefit, which is not considered complete when one lacks intention to benefit.
The latter’s חידוש (novel idea) seems to be that unintended pleasure is not considered complete pleasure at all, and even if such pleasure is inevitable, the stringency of פסיק רישיה does not apply to it, something which of course requires further explanation.
Of course, according to the view of the Ritva in the name of the רא”ה quoted above, the leniency of דבר שאין מתכוין only applies where a person does not derive pleasure from the problematic situation, but if he does derive pleasure, it is considered intentional, and the question does not begin.
הנאה as a stringency
We have seen in our sugya that Rabbi Shimon’s leniency of דבר שאין מתכוין מותר is extended to forbidden benefits occurred during otherwise permitted actions.
However, we have dealt before with another related leniency, namely מתעסק, where one intends to perform a permitted action and lands up doing something that is forbidden (see posts on shabbos 72 and 92 for background.)
Regarding מתעסק, we have seen that when benefit is derived from the unintended forbidden action (such as eating forbidden fats thinking that it is permitted fat or sleeping with a woman who is forbidden to him, thinking she is permitted to him,) one is still liable to bring a korban (sacrifice) for one’s actions.
We see a similar idea regarding נזיקין (damages- B.K. 19b) that although an ox is sometimes exempt from damages it does with its mouth in public property, the owner is liable up to the value of the benefit that it derived from doing so (such as the cost of the food it ate.)
It seems from the above that whenever a person (or his animal) derives pleasure from something, his lack of intent or warning is irrelevant to his liability for any transgression derived thereby.
It seems, at least on the face of it, that there must be a strong distinction between מתעסק and דבר שאין מתכוין when it comes to benefit and that the latter is conceptually so different that הנאה does not affect it at all.
Perhaps this because whereas in מתעסק, the primary action one lands up doing, albeit unintentionally, is forbidden, in the case of דבר שאין מתכוין, the primary action remains permitted and the forbidden action is merely a secondary by-product of that action- secondary benefit that is only a by-product of a permitted action might not be enough to create liability or even to forbid the permitted action in the first place.
OF course, once again, if we were to adopt the approach of the Ritva quoted above, then any benefit is treated as intentional (even though possibly still called “by force”) and there is no need for any such distinction.
Entering situations of sexual temptation for the sake of permitted activities
It follows from the conclusion of our sugya, at least according to most Rishonim, that it is permitted to enter a situation where one might derive forbidden but unintended benefit, if one needs to for some otherwise permitted purpose, even if there is an equally convenient alternative route or way of achieving that objective (אפשר ולא קא מכוין)
Yet we are told (Bava Basra 57b) that a man who intentionally walks past a place where women are washing clothes (and thus not fully covered) where another path exists to where he is going, is called a רשע (wicked person.)- Only if there is no alternative path, may he walk past and turn his eyes away.
It is not immediately clear from that sugya whether the alternative path needs to be as convenient as the problematic one or not, but If intentionally walking past a place where he will derive pleasure from the forbidden fragrance of idolatrous incense is permitted, even if there is an equally convenient alternative route, why should walking past this immodest situation even if an EQUALLY convenient alternative route exists, be not only forbidden but bad enough to be called a רשע ? (see though Rashbam on the sugya, as opposed to Rabbeinu Gershom, regarding what exactly this means.)
Once again, if we accept the Ritva’s explanation above, the question might not even begin.
Although it is indeed possible for a person to know in advance (or at least think) that he does not derive pleasure from incense, the principle of אין אפוטרופוס לעריות might teach us that it is impossible for any man to know or assume in advance that he will not derive pleasure from immodestly dressed women.
Similarly, according to the Tosfos who say that הנאה הבאה לאדם בעל כרחיה is only permitted in cases where דבר שאין מתכוין itself is permitted, namely when the benefit is not inevitable, perhaps the strength of the sexual urge is such that such benefit is inevitable.
However, according to the מהר”ם חאלאוה quoted above, who explains that benefit one is “forced into” is not subject to the stringency of פסיק רישיה, neither of these explanations hold water.
Pinning an explanation on the severe status of forbidden relations in things related to them is also not sufficient, seeing as idolatry and things related to it are treated equally strictly.
Perhaps a combination of the severity of the transgression and likelihood thereof due to its overpowering attraction sets entering a situation of sexual temptation apart and even the מהרם חאלואה would agree that the leniency of הנאה הבאה לאדם בעל כרחיה does not apply to it.
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.
On Daf 12b, the Gemara quotes a Mishna which records a dispute between Rabbi Meir and Rabbi Yehuda regarding the last time one is permitted to eat chametz on erev Pesach.
Rabbi Meir holds that one may eat chametz until the end of the fifth hour of the day and must burn in at the beginning of the sixth hour.
Rabbi Yehuda, however, holds that one may only eat chametz until the end of the fourth hour, may keep it in one’s possession till the end of the fifth hour, and burns it in the beginning of the sixth hour.
It should be noted that the prohibition of eating and owning chametz on a biblical level only applies from midday, and that these are rabbinical “fences” designed to avoid missing the biblical deadline.
The Gemara in 13b notes that Rav Nachman ruled like Rabbi Yehuda, and later claims that Rebbe’s own ruling supported his conclusion.
It tells how someone had deposited a leather sack (see Rashi) filled with chametz with יוחנן חקוקאה and it was bitten open by a mouse.
It was erev pesach, and the chametz was leaking out and getting lost, and he wanted to sell it to recover whatever money he could for the owner while doing so was still allowed.
Rebbe kept telling him to wait, in case the owner came and wanted to eat it, until the beginning of the fifth hour when he told him to go to the market and sell it on his behalf.
The Gemara assumes that Rebbe meant for him to sell it to non-Jews, thus implying that he agreed with Rabbi Yehuda that eating chametz during this time is already forbidden for Jews.
After all, if he meant for him to sell it to Jews and agreed with Rabbi Meir that Jews were still permitted to eat chametz during this time, he should have rather given Yochanan the option to buy it himself first and eat it during this time, rather than requiring him to make the effort to go to the market to sell it!
The Gemara refutes this suggestion, explaining that Rebbe might indeed agree with Rabbi Meir and have intended for Yochanan to sell it to Jews on behalf of the owner.
However, Rebbe did not want him to buy it himself, due to concerns for חשד (arousing suspicion.)
As Yochanan had a vested interest in fixing the price lower than the going rate in order to buy it himself, Rebbe held that it was wrong to buy it, even for the same price as others would agree to, in order not to arouse suspicion that he had indeed done so.
To back this reasoning up, it brings a Beraisa that discussed someone who collects copper coins for charity and currently has no poor people to give them to. Due to the concern that they might go rusty, he needs to exchange them for silver coins with someone else, but he may NOT exchange them for his own silver coins, in order not to arouse suspicion that he gave himself a favorable rate.
This would be going against the apparently biblical directive of “והייתם נקיים מה’ ומישראל ” – “you shall be clean from Hashem and the Jewish people (Bamidbar 32/22.)
The same applies to someone who works in a soup kitchen and has excess food: He needs to sell it to someone else, but may not buy it himself from the charity, to avoid suspicion that he might give himself a better price!
This idea can be found in an explicit Mishna (Shekalim 3/2,) which tells us that the person who puts donations given to the Temple in the 3 boxes used for storing them may not wear a garment that is folded over, shoes, an amulet, or even Tefillin, in order not to arouse suspicion that he stole from them and hid the money in one of the above items (see Rambam there.)
The idea that someone would be so brazen as to un-sow Tefillin and hide stolen money in them might seem extreme , but there have indeed been cases in modern times where “religious” Jews have been caught smuggling diamonds and other things in their Tefillin, making this Mishna even more chilling (Rav Mordechai Kamenetzky (https://torah.org/torah-portion/drasha-5757-shoftim/) tells how when consulted about this phenomena, his saintly grandfather Rav Yaakov Kamenetzky זצ”ל compared such behavior to someone who approaches enemy lines with a white flag as if to surrender, and throws a grenade, violating a sacred symbol of peaceful intent so that others no longer trust it.)
We saw earlier in the daf cycle (Shabbos 23a) that a person is required to leave פאה (the corner of the field left for the poor) at the end of his field, for 4 different reasons, one of them being to avoid חשד (suspicion) that he might not have left anything at all.
Similarly, The Gemara (Bava Basra 8b) rules that it is forbidden for someone who is collecting money for charity to put money that he finds in the street, or that someone gives him in repayment of a loan, in his own wallet, so that people should not think that it is charity money that he is taking for himself.
Rather, he should put it in the charity box, and transfer it to his own wallet once home. The people collecting money are also supposed to go in pairs for the same reason (Bava Basra 8b.)
We should note that unlike the practise in many corrupt areas of making traffic police work in pairs to make it more risky to accept bribes, the concern here is not even that they would steal the money but simply that they might be suspected of doing so- such is the ethical standard expected of a Jew.
The directive to “be clean” does not only apply to monetary matters, but also to arousing suspicion of other types of improper behavior.
For example, one of the reasons that it is forbidden to enter a חורבה (ruin ) is to avoid suspicion that one might be meeting a prostitute there (Brachos 3a and Rashi there.)
A Jew is required to not avoid corruption, but to avoid any suspicion of corrupt behave, and to always be AND appear squeaky clean.
There is a related concept called מראית עיין, where Chazal forbade or required certain actions to avoid “looking bad.”
Whether this is an extension of the concern of חשד or an independent concept requires some analysis, which I hope to be able to do at a later opportunity.
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.
There are some dapim that flow from one to the other remaining focussed on one theme or sugya, bringing proof and counterproof for possible answers to a certain question regarding this theme.
There are other daf that seem to have much of shas contained in them, microcosms of many different albeit often interrelated principles and rules.
These daf are extreme examples of the “mini-shas” style daf, moving roller-coast style from one global principle to the next, making all but the most experienced students of Talmud gasp for breath.
Examining all of them in detail could take years but let us have a brief look at some of them and how they relate to the central theme of the perek, namely getting rid of chametz before Pesach.
The Mishna on Daf 9 rules that there is no need to be concerned that a weasel has taken chametz into a house that one has already checked for chametz from one that has not been checked, or from one place to another.
Once one has checked it, one may assume that it remains chametz free.
The Mishna adds that if one would have to be concerned about this, there would be no end to the matter (אין לדבר סוף) , and even a complete chametz-free city would not be immune from the concern that chometz was brought in from a neighboring settlement.
This kicks off a discussion in the Gemara which involves some of the most important rules and concepts in all of Shas and halacha, among them
חזקה מעיקרא – we assume an item retains the status it had when we last saw it unless we have significant reason (רעותא) to believe its status has changed.
This rule is derived (Chullin 10b) from the case of the בית המנוגע (leprous house.)
In the case of our Mishna, we assume that a house that has been checked remains free of chametz unless we have strong reason to assume otherwise. In fact, this is such an established principle that we need to understand what theחדוש of the Mishna is and why we need the idea of אין לדבר סוף to explain it.
כל דפריש מרובא כפריש – we assume that any item that has left its place of origin, and whose place of origin is subject to doubt, has the status of the majority of places it could have left. This is an extension of the general rule of זיל בתר רובא (following the majority,) derived from the verse “אחרי רבים להטות” (see Chullin 11a)
In our sugya, if crumbs became separated from one of 10 piles, 9 being matza and 1 being chametz, and is then dragged by a weasel into a room, we follow the majority and assume it was chametz that was dragged in.
כל הקבוע כמחצה על מחצה דמי – so long as the item in point 2 above is in its place of origin (or by extension, if we observed it leaving its place of origin,) the rule of majority does not apply, and in case of doubt as to the status of the place of origin, it is regarded as 50/50 and the rules of ספק (doubt) apply (presumably in biblical matters be stringent and in rabbinical matters be lenient, but perhaps not as simple as all that.)
This rule is extremely complex and hard to define precisely.
In our case, if one sees a weasel dragging crumbs from one of 10 piles into a checked house, 9 being matza and 1 being chametz, and one is not sure about the status of the pile it was taken from, we do not follow the majority, and must check again out of doubt.
(the assumption here seems to be that בדיקת חמץ is דאורייתא , possibly in the absence of בטול ועיין תוס’ ד”ה “היינו” )
אין ספק מוציא מדי ודאי – a doubt may not remove a certainty. If an item has a certain status and there is a chance that that status may have been removed, that chance is not sufficient to remove that status.
In our case, if one sees a weasel dragging chametz into an already checked house, one may not assume that it ate it all, and needs to recheck.
שאני אומר – There are two boxes, one containing something permitted and one containing something forbidden, and there are also 2 items, one of the same status as the contents of the permitted box and one of the same status as the contents of the forbidden box.
Each item falls into one box, and we are not sure which item fell into which box.
We sometimes assume that the permitted item (for example Chullin) fell into the box with permitted contents (Chullin) and that the forbidden item (for example Teruma) fell into the box with the forbidden contents (Teruma) thus preserving the permitted status of the box with the permitted contents. The Gemara limits this rule to rabbinic prohibitions, possibly due to the general rule of ספק דרבנן לקולא .
It is interesting to note in this context that Rashi points out, possibly based on this sugya, that Teruma in our time is rabbinical in nature
Regarding chametz, the Gemara suggests that this rule applies in a case where there are 2 boxes, one of chametz and one of matza, and two houses, one that has been checked, and one that has not been checked.
One mouse takes something from the chametz box and drags it into one of the houses, and another mouse takes something from the matza box and drags it into the house.
We are not sure which house each mouse went into.
By this rule, we can assume that the mouse with the chametz went into the checked house and the mouse without the chametz went into the unchecked house.
חזקת הטבע (assumptions regarding human nature)- for example, on our daf, produce left by a deceased Torah scholar can be assumed to have been tithed, as there is a חזקה that a Talmid Chacham does not allow untithed produce to leave his hands (חזקה אין חבר מוציא מידו דבר שאינו מתוקן). This makes it a case of ודאי וודאי and not comparable to the case regarding chametz we brought where we say אין ספק מוציא מידי ודאי.
הערמה (legal fiction)- there are times when a person may you a legal loophole to permit something that would not normally be permitted.
For example, one our daf, one is permitted to intentionally bring one’s produce “through the back door” [דרך גגות חצירות וקרפפות] in order to exempt them from מעשר. This would make a case of produce bought from a Talmid Chacham ספק וספק even in the absence of חזקה mentioned in point 6.
All that and so much more to analyze in one or 2 daf and we have barely touched the Rishonim!- this is one of those times when the pace of daf yomi starts to get seriously frustrating!
How I yearn for the Yeshiva days….
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.
Without prejudging this issue, I would like to daven that in the zechus of this and all the other learning we do, My dear father שליט”א , and teacher of so much Torah to so many, should have a refuah shleimah.
One of the most emotionally, politically, and religiously charged topics in Israel during the Corona outbreak has been the closure of shuls, Torah schools, and Yeshivos in order to prevent the spread of the disease.
On the one hand, preservation of life is one of the most sacred principles in Judaism, and one is not only permitted, but required, to transgress all commandments, except for murder, idolatry, and sexual immorality, in order to save lives (Yoma 85b,Sanhedrin 74a.)
On the other hand, not only is Torah study and prayer considered to be pillars of our and the entire world’s existence (Mishna Avos 1/2,) there is even some evidence that at least some Chazal considered both Torah and the commandments to have protective, or even healing power (see Sotah 21a.)
Despite this possibility, however, there is also a clear prohibition against intentionally using the words of Torah to heal (see Shvuos 16b,Sanhedrin 90a/101a) opening the door to a third approach whereby learning Torah and performing mitzvot for their own sake might be permitted despite the existence of dangers in doing so, due to this protective power.
The subject is complex, and there are many sugyos that need to be studied to even get a superficial view of the issues involved. In the context of a daf post like this, I wish to study the topic as it appears in this daf, what seems מוכרח (indisputable) from it, and what possibilities are left open.
Near the bottom of Pesachim 8a, the Gemara brings a Beraisa which states that we do not require a person to put his hand into holes and cracks in order to find chametz (rather a visual inspection with the candle is sufficient.)
The reason given for this is due to the danger involved.
The Gemara, in questioning what this danger is, rejects the possibility that it is the danger that a scorpion might be hiding in one of the holes and cracks, because it was normal to use these holes and cracks (in the walls) for storage (otherwise one would not be required to search there anyway, as only places where chametz is kept need to be searched.)
The rejection of this concern can be explained in two ways:
One would not use holes and cracks for storage if scorpions were found in them due to the danger, so the danger almost certainly does not exist.
There is indeed some danger of scorpions in the holes and cracks, but as it clearly did not stop one from using them for storage, it is clearly not enough of a concern to exempt one from the mitzva.
An important נפקא מינה (practical ramification) would be whether one is liable to take reasonable every-day risks for the sake of a mitzva.
If the reason that the danger factor is rejected is because we are referring even to places where scorpions are not find in holes in the wall used for storage, it could follow that in places where people used holes in the wall for storage despite the risk of scorpions (whether this is permitted or not,) there might still be no obligation to take this risk in order to perform the mitzva of בדיקת חמץ.
On the other hand, if the danger factor is rejected because we are dealing with places where despite the danger of scorpions, people still take the risk and use the holes, it would follow that in the case of a reasonable every day risk that people take, such a risk might indeed be obligatory for the sake of a mitzva like בדיקת חמץ .
It should be noted that given that, at least when בטול is performed, בדיקת חמץ is only דרבנן (a rabbinical requirement,) extending the exemption due to this level of danger to biblical obligations, though possible, should not be taken for granted based on this sugya alone.
After rejecting the possibility that the Beraisa is exempting one from searching holes or cracks in the walls for chametz, it concludes that we are dealing with searching in the holes formed in the heap of a collapsed wall.
Though it does not state precisely what the danger is, Rashi takes for granted that this concern is indeed due to scorpions, seeing as scorpions are far more common in garbage dumps and heaps.
Despite the more significant danger involved in this case, the Gemara is still troubled by the Beraisa’s exemption, due to the principle stated by Rabbi Elazer that שלוחי מצוה אינם ניזוקין (those on a mission to perform a mitzva are not harmed.)
This principle seems to indicate that a person merits protection while performing a mitzva, and that even if there is a real danger of scorpions in the pile, the mitzva of בדיקת חמץ will protect him.
It is important to stress that we see from here that this principle, whatever it means, applies even to a rabbinical mitzva!
After some give and take, the Gemara seems to accept the fact that although a real concern normally, the danger of scorpions is not sufficient to exempt one from the search, due to this rule.
It concludes that the danger mentioned is that once the mitzva is over and the protection it affords is no longer active, he might continue feeling for a lost item and get stung by a scorpion while doing so.
We see from here that whatever protective power a mitzva has, it ceases to function once the mitzva is complete, even if one does a voluntary action that one would not have done had he not performed the mitzva.
Alternatively, Rav Nachman bar Yitchak suggests that the danger referred to is not that of scorpions but of his non-Jewish neighbor, who might find his actions suspicious and suspect him of practicing witchcraft against him.
The Gemara once again attempts to refute this with Rabbi Elazer’s principle that שלוחי מצוה אינם ניזוקין and concludes that “היכא דשכיח הזיקא שאני” (where danger is “שכיח” , it is different.)
The word שכיח is the Aramaic equivalent of the Hebrew “מצוי”, literally translated as “found or present” but most often refers to “common.” (note that in a similar discussion in Yoma 11a, the phrase (fixed)קביע הזיקא is used, and as the same prooftext is brought, it seems that the two are equivalent at least to some degree.)
It follows that where the danger is common (such as a non-Jewish neighboring accusing a Jew of witchcraft,) as opposed to danger that is real but less common (such as a scorpion being present in the hole at the time or stinging one when he puts his hands in) the principle may not be relied upon.
We can now attempt to list a hierarchy of dangers, regarding the applicability of the principle of שלוחי מצוה אינם נזוקין .
A situation with no significant danger (such as holes in the wall in a place where scorpions are hardly ever found.)- There is no need for this principle, and it is obvious that the mitzva must be fulfilled.
A situation where there is some risk of danger, but it is a normal risk accepted in every day life (Equivalent or similar to what Chazal call “דשו בו רבים” in other contexts such as Shabbos 129b and Yevamos 12b- It is possible that here too there is no need for this principle, and the mitzva must be fulfilled even without it, but it is also possible that in the absence of this principle, there would be no obligation to take the risk, even if its permitted to do so voluntarily.
A situation where the danger is significant enough that one would normally avoid it in every-day life, but not in the category of “common.”
The principle would require one to take the risk for the sake of a mitzva.
A situation where the danger is common ,the principle is not relevant, and one is exempt from the mitzva.
The above analysis, though already complex, deals solely with the question of whether one is obligated to take risks to perform mitzvot and not whether one is permitted to do so voluntarily, a topic for another discussion.
It also fails to tackle the actual meaning and mechanism behind the principle, and the fact that we see In front of us many cases where people have been harmed, even by freak occurrences, in the performance of a mitzva (see Kiddushin 39b for example re שלוח הקן)
We have to bare in mind the possibility that the principle is less a statement of fact, and more of a halachik principle (as well as a kind of hope, blessing or prayer), which defines certain types of risk that one would normally avoid as obligatory when it comes to performing mitzvot.
The sugya ends with Rav being asked whether his students who live far away in the valleys should risk harm in order to go early and come back late from the study-house.
His response was that he took the responsibility for any harm that comes to them on himself.
Once again, there are two possibilities for understanding what he meant:
Rav admitted that some risk was involved, but was prepared to take responsibility for the risk, given the enormity of the mitzva of Torah study. Such a willingness to risk other people’s lives would certainly require further discussion.
Rav believed that due to Rabbi Elazar’s principle, there was no risk at all, and they would not be harmed (see Rashi who seems to understand it this way!)
Whereas this explanation appears easier to understand ethically, it is harder to understand on a factual basis.
Although the Gemara does not elaborate on the level of danger that was involved in making this daily journey before dawn and after dark, it seems clear that it was great enough that people would normally be hesitant to risk it for non-mitzva related purposes, and despite that fact, Rav still encouraged them to come for the sake of Torah study and took the risk on himself.
It is also necessary to point out that the above analysis applies to an individual taking certain levels of danger on himself for the sake of a mitzva- none of these examples directly deal with endangering other people or the public in general for the sake of one’s own personal mitzva or Torah-study, or endangering the public for the sake of a public mitzva or public Torah study, though the above case of Rav and his students might come closest to this.
I do not intend to come to practical conclusions regarding the current situation from this analysis- there are far too many other sugyot to analyze (see for example Yoma 11a which seems to include monetary risk in the exemption, Kiddushin 39b regarding שילוח הקן, Kesubos 77b regarding חולי ראתן, Sotah 21a regarding the מים המאררים ,as well as what might be a completely different approach to the entire idea of שלוחי מצוה אינם ניזוקין in the Rambam and the Meiri) and I leave this to senior Talmidei-Chachamim, but what seems certain from this sugya is that
A certain level of significant risks that people normally try to avoid in their everyday lives wherever possible not only may, but MUST, be taken for the sake of mitzvot, even rabbinic mitzvot, and even more so for Torah study.
There is a level of risk which may not be taken even for the sake of mitzvot.
Finding the balance between the above two levels of risk, is not simple, but is essential to make practical decisions in this and other situations.
On the previous daf, the Mishna told us that we need to search for chametz by the light of a candle on “אור לארבעה עשר” [ lit: “the light of the 14’th.]
One of the first פסוקים (verses) we learnt as children tells us how Hashem created “אור” [“light”] on the first day, called it “יום” [day], and called the “חושך” [darkness], “לילה” [ night.]
As such, our first assumption when reading this Mishna would be that we need to search for Chametz during the day, or perhaps at first light, of the 14’th, i.e. the day before Pesach.
Yet, far from taking it for granted, the Gemara asks what “אור” is referring to, and brings a debate between Rav Huna, who says it is referring to “נגהי” (Aramaic for “light”] and Rav Yehuda, who says that it is referring to “לילי” (Aramaic for night.)
Seemingly unbothered by the apparent bizarreness of Rav Yehuda “translating” a word “everyone” knows means “light” as “night-time”, the Gemara initially assumes that at least Rav Huna holds that the mishna is referring to day-time, as would be our natural assumption.
Yet after bringing an array of פסוקים that all seem to use the word “אור” to refer to day-time, and offering seemingly forced alternate explanations of all them in a way that the word “אור” itself might still refer to night, it brings various examples of usage in משניות and ברייתות where the word clearly seems to refer to night.
Clearly choosing the later over the most obvious usage in the pessukim, the Gemara concludes that even Rav Huna agrees that the Mishna refers to night-time, but explains that in his town, the word “נגהי” was also used to refer to night-time.
Seeing as we are dealing with the usage of words by Chazal, it is not surprising that the Gemara chooses examples of its usage from Chazal over the simple meaning of its usage in the scriptures, but given that Chazal do sometimes use language differently to the scriptures (see for example B.M. 2a re “ראיה”), it seems strange that the Gemara feels the need to explain the פסוקים in a way that is consistent with their usage- perhaps the Torah simply uses “אור” in its literal usage to describe light or day, and Chazal use it as a reference to “night”, for whatever reason?
The Gemara concludes that the reason why the Mishna (and by implication other statements of Chazal) use the word “אור” in place of “חושך” or “לילה” is in order to make use of “לישנע מעליה” (lit. “superior language.”)
It bases this on Rabbi Yehoshua ben Levi’s ruling that a person should never let a “דבר מגונה”- “degrading word” came out of his mouth.
This ruling is in turn based on the fact that Torah added 8 extra letters, despite the golden rule that it NEVER wastes letters or words, in order to replace the phrase ” בהמה טמאה” (impure animal ) with “בהמה אשר איננה טהורה” (“ an animal which is not pure.”
This proof is followed by others from different Amoraim.
The school of Rabbi Yishmael then brings a similar rule requiring people to always speak with “לשון נקיה” (clean language.)
This is based on the fact that whereas something that a זב (male impure due to an unusual emission) rides on (and thus becomes impure) is referred to as מרכב הזב (lit. something the זב rode on), the equivalent by a woman is referred to as “מושב” (lit. something she sits on.)
Rashi explains that seeing as riding an animal involves spreading one’s legs out to a degree, something normally considered immodest for a woman, the Torah prefers to use the more modest sounding “מושב”
They then bring another two verses to substantiate their claim, which the Gemara understand come to teach us that not only does the Torah, due to its extra sanctity, go out of its way to use clean language, but Chazal were also expected to do so.
Furthermore, not only are the Rabbis due to their stature required to do so, but one is required to do so in every day talk as well!
Perhaps this could explain why the Gemara was not satisfied to simply take the verses that refer to “אור” at face value and explain the Mishna on the basis that Chazal use the word differently.
In the case in Bava Metzia, Chazal might have used the word “ראיה” in the every day sense as in “seeing” even though in the language of the Torah, it usually implies “דאתיא לידיה” – something that comes into one’s hand.
However, the idea that the Torah would never be concerned about using ‘clean language” and Chazal would be was not something the Gemara could consider, as we have seen that the greater sanctity of the Torah should make it more concerned about such things, not less so!
As such, the Gemara needs to go out of its way to show that the Torah could also have used the word “אור” in place of night, and the places where it means “light” literally can be explained in other ways.
Yet in truth, it is hard to say that words like “night” and “impure” are examples of such unclean language, and as the Gemara itself points out, the Torah itself often uses such words such as “טמא”
The Gemara thus qualifies the requirement to use “clean language” to a situation where the clean language is just as short and concise as the “less clean” alternative, in keeping with the dictum of Rav that a person should always teach his students with concise language.
The clarity of concise language usually thus takes priority over being particular over “clean language,” at least regarding talking to one’s students.
If so, how do we explain the fact that in the examples brought earlier, the Torah indeed added extra letters in order to make use of “clean language?”
Rashi explains that this was an exception the Torah made in order to teach us the importance of using clean language wherever possible, and Tosfos adds that had the Torah not done so in that case, we would not have known that we need to be particular about using clean language in cases where it does not affect the concise nature of the statement.
The incredible implication of this seems at face value to mean that if it was not for this special exception the Torah made, we would think that using “unclean language” even for no justified reason is acceptable?
Is it possible that bad language, of which it is said “כל המנבל את פיו מעמיקים לו גהינום” (one who dirties his mouth gets a deeper spot in hell- Shabbos 33a) would be acceptable had it not been for this unusual exception made by the Torah?
It seems to be that we need to differentiate between truly dirty language and words like “night”, “impure” ,and “riding” (in the context of a woman) that can hardly be said to be objectively dirty or rude.
It might go without saying that the former has to be avoided in all but perhaps the most extreme or necessary cases, if at all (objectively “dirty” language is found even in Tanach in reference to idol-worship for example- see Sanhedrin 63b “ליצנותא דע”ז.)
The later, however, is part of everyday language that often cannot be avoided.
So important , however, is the sanctity of one’s speech, that even remotely negative words should be avoided wherever possible, and the Torah breaks its golden rule of never using unnecessary letters that once in order to drive home this essential point (see ר”ן ד”ה “לישנא מעליה” who seems to take this approach.)
Negative language inevitably leads to negative thoughts and actions, and although the Torah doesn’t avoid negative statement where absolutely necessary to make a point, as the ultimate “לקח טוב” (good gift or teaching,) positivity is at its core, and should be at ours as well!
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.
The opening Mishna of Pesachim introduces the mitzva of בדיקת חמץ (searching for Chametz) before Pesach.
The mishna tells us that אור לארבעה עשר בודקין את החמץ לאור הנר.
After much debate on this and the next daf, the Gemara concludes that אור לארבעה עשר refers to the evening of the 14’th of Nisan, and that the evening is referred to as אור (literally light) in order to use לשון נקיה (clean language,) something I hope to discuss in tomorrow’s post.
As such, the Mishna is understood to mean that on the evening BEFORE Pesach starts, we need to search for any chametz with the light of a candle.
The reason for this search is subject to debate amongst the Rishonim.
Rashi explains that it is to avoid the prohibition of בל יראה ובל ימצא (owning chametz on pesach- see Shmos 12/19 and 13/7), and the Ran seems to understand that it is also connected to the positive mitzva of תשביתו (removing chametz from one’s possession- see Shmos 12/16.)
By searching for any remaining chametz in the house and burning it the next day, we make sure to avoid this prohibition (and fulfill the positive mitzva.)
It seems to follow that Rashi considers this to be a חיוב דאורייתא (biblical requirement) due to the prohibition of owning chametz.
The Tosfos famously take issue with this based on a later sugya (Pesachim 6b) where Rav Yehuda rules in the name of Rav that one who has searched also needs to perform בטול חמץ (nullify the chametz in his heart.)
Seeing as this is a requirement in any case, and מדאורייתא בבטול בעלמא סגי ליה (on a Torah level, annulment is enough to avoid the prohibition of owning chametz-Pesachim 4b), they dispute what they understand as Rashi’s claim that the search is necessary in order to avoid this prohibition. Indeed, the Gemara itself there states that בדיקת חמץ is only a rabbinical requirement!
Instead, they explain that this a rabbinic requirement in case one sees chametz on Pesach that he has already annulled and comes to eat it- the prohibition of eating chametz carries the severe penalty of כרת and applies to all real chometz whether one owns it or not.
Whereas the Tosfos clearly saw Rashi as claiming that the search is NECESSARY in order to avoid the prohibition of owning chametz, it is possible to understand him simply as saying that the search is a legitimate and possibly preferable way of avoiding the prohibition- one can do so without it by nullification, but seeing as the search takes place first, in practise it has also removed any concern of this prohibition by the time the nullification comes along.
This is how Rishonim such as the Ran understand Rashi: The Torah requires the end result that we do not own chometz on Pesach, but Chazal determined how we get to that result, and due to the severity of the prohibition and the need to cover all bases, they required us to go through two processes- search and destroy, and nullification.
The Tosfos, on the other end, seem to hold that there was no need for Chazal to institute two methods to remove chometz from one’s possession, and that seeing as they made nullification mandatory, they must have required the “search and destroy” operation for other reasons. )It should be noted though that whereas the requirement to search is recorded in the Mishna, the requirement to perform בטול is only recorded later in the early Amoraic period by רב יהודה אמר רב, making this argument seem problematic unless the requirement for בטול also goes back to the time of the Mishna and Rav was simply recording it, something that requires evidence.)
According to this view, one needs to understand why Chazal were so concerned about us coming to eat chametz that they required us to search for it and destroy it?
After all, there are many other things we are forbidden to eat or even benefit from, and Chazal made no such requirement.
The Tosfos suggest that this is because of the severe penalty prescribed for one who eats חמץ, but are still faced with the fact that eating certain other foods such as חלב (forbidden fats) is also subject to the same כרת punishment.
As such, they add another factor to explain this special stringency, namely the fact that chometz is something which people are not used to avoiding, given that it is permitted the rest of the year, and in addition to the severity of the penalty for doing so, this was enough reason for Chazal to set this prohibition apart from others and require search and destroy.
They also suggest that Chazal treated chometz more seriously than other prohibitions because the Torah itself did so- It is the only food subject to a ban of eating and benefitting from which is also subject to a prohibition against owning.
The simplest explanation of this idea is that the fact that the Torah prohibited even owning chometz shows us that this prohibition is to be taken even more seriously than others- Chazal followed this queue and imposed the obligation to search and destroy in addition to nullifying it.
The Ran (דפי הריף א. ד”ה “ומה” ) is even more explicit and suggests that the reason the Torah itself forbade owning Chometz on Pesach was because people are not used to refraining from eating it the rest of the day, and combined with the severity of eating it on Pesach, the Torah took extra precautions to prevent this.
This idea is rather novel in that it would be a rare example of the Torah creating its own fence to protect another Torah commandment, something usually the mandate of Chazal.
This is not completely without precedent- the אבות דרבי נתן (chapter 2) understands that the Torah made a “fence” around the prohibition of forbidden sexual relations such as Niddah by prohibiting קירבה(coming near) -sexually arousing acts such as hugging and kissing are thus forbidden on a Torah level as a restraint against sexual acts themselves.
Although the Ramban (השגת לספר המצוות לאו שנג), based on the view of רבי פדת (Shabbos 13a) understands this to be an אסמכתא and the prohibition of “coming near” to be rabbinical in nature, the Rambam (ספר המצוות לאו שנג) takes this literally and holds that it is a Torah prohibition punishable by lashes.
If we accept the Ran’s reasoning regarding בל יראה ובל ימצא and the Rambam’s regarding קרבה, the common denominator is clear- both eating chometz on Pesach and forbidden sexual relations are extremely serious prohibitions punishing by כרת, both are unusually hard to avoid (chometz because of habit and עריות because of the power of the libido) and both have “satellite” biblical prohibitions to keep us far away from them!
If the Torah itself singled out these prohibitions by making its own biblical fences around them, and Chazal themselves followed with fences of their own, how careful should we all be to stay as far away as possible from them.
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.
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