Category Archives: General Concepts

Eruvin 50 Tannaic versus Amoraic authority and “רב תנא הוא ופליג”

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In the Mishna on 49b, we are told that  a person who is on a journey home on erev Shabbos and realizes that it is starting to get dark and he is still not within 2000 amos of his home or city (but is within 4000 amos) , may designate a place that he knows along the way as his shabbos base, thus allowing himself to walk a further 2000 amos from that designated space and reach his home on Shabbos.

The Mishna stresses though that simply declaring his shabbos base to be under a particular tree does not do the trick- he needs to specify where under the tree, such as at its base, otherwise “he has not done anything.”

Rav and Shmuel dispute what the Mishna means by “has not done anything.”

Rav is of the view that he has disqualified his current position from being his shabbos base by showing that he does not intend it to serve this purpose, but has also not successfully declared a new shabbos base, and he is thus confined to his 4 amos for the duration of shabbos (as explained by Rashi, but see Rambam Eruvin 7/5 who appears to rule like Rav but understand that his current position remains his shabbos base.)

Shmuel, in contrast, holds that so long as the entire area under the tree is within 2000 amos of where he is, he may walk to the area under the tree and 2000 amos from it.  However, seeing as he did not specify which area under the tree is to be his shabbos base, this area has the law of a חמר גמל  (donkey and camel man- see earlier post on Eruvin 35) and he may only walk within 2000 amos of the furthest part of it from where he wishes to go.

Most of our daf is dedicated to discussing this issue, and on 50b, the Gemara brings a Beraisa in support of Shmuel and in refutation of Rav, yet the Gemara answers that bringing a Beraisa against Rav is not sufficient to prove him wrong, seeing as “רב תנא הוא ופליג” -Rav is  a “Tana” and argues (with other Tannaim.)

It is taken as axiomatic throughout the shas that the Tannaim (sages of the Mishnaic period) are more authoritative than the Amoraim (sages of the Talmudic period) and that an Amora may never disagree with a Tana unless he has another Tana to back him up- The main job of the sages of the Gemara is to interpret, reconcile, and adjudicate between the Tannaim but not to disagree with them.

Yet on our daf, in addition to various other places in the shas, we are told that the leading Babylonian Amora of the first generation of Amoraim, Rav, is an exception, and is considered a Tana who may and does argue with Tanaim.

In another place where this exception is made (Kesubos 8,) Rav and Rabbi Yochanan are both quoted separately as stating that a groom can be counted in a minyan but a mourner can not (what precisely this is referring to is discussed there.)

The Gemara brings a Beraisa to refute Rav which says that both grooms and mourners may be included in the minyan but responds that רב תנא הוא ופליג- Rav is a Tana and argues with the Beraisa.

It brings the same Beraisa to refute Rabbi Yochanan and answers that the Beraisa is talking about ברכת המזון  (grace after meals) in which the mourner may be included towards the required 10 for זמון בשם  and Rabbi Yochanan is talking about the שורה  (the line for comforting the mourners) in which the mourners may not be counted.

There appears to be some logic in this distinction, given that the purpose of the minyan for ברכת המזון  is to allow Hashem’s name to be mentioned in the zimun, and a mourner is equally obligated in being part of this than anyone else.  However, the purpose of the minyan for the שורה  is to comfort the mourners, and the mourners are not part of the mitzva of comforting themselves.

Yet despite this seemingly obvious distinction, Tosfos points out that the Gemara saw this as a “forced” distinction and preferred to use Rav’s status as a Tana to answer the difficulty on him.

In contrast, seeing as Rabbi Yochanan does not have the status of a Tana (the Rabbi Yochanan quoted in a Beraisa [Nazir ] is a different person, a Tana by that name, possibly Rabbi Yochanan ben Nuri,) the Gemara had no choice but to resort to this distinction.

Given the apparent superiority of Rav over Rabbi  Yochanan to the point that Rav had the status of a Tana and was thus able to argue with Tanaim, and Rabbi Yochanan did not, it seems rather inconsistent that the rule of thumb throughout the Talmud is that we follow Rabbi Yochanan in cases where he argues with Rav.

To solve this apparent inconsistency, it is necessary to examine various possibilities as to why a Tana is more authoritative than an Amora.

1.       One  possibility is that the Tanaim were closer chronologically to the giving of the Torah, and thus their מסורת  is considered purer and more uncorrupted.

2.       Another option is that the Tanaim were objectively greater in learning than the Amoraim.

3.       A third possibility is that the Amoraim simply had  different roles to that of the Tannaim because  once Rebbe sealed the Mishna, its words become like the authoritative ruling of the great court which could no longer be over-ruled. As such, their only role and sphere of authority was now in interpreting, reconciling, and adjudicating disputes in the Mishna.

Whereas possibilities 1 and 3 above are less likely to allow for individual exceptions, the second reason might leave the door open for an unusually great Amora whose learning was equal or greater to that of some Tannaim  to be able to argue with at least some of them.

According to this reason, it could simply be that Rav’s greatness in learning was such that it was recognized throughout the Talmudic world as being on par with the Tanaim, something that other Amoraim lacked.

However, we would then need to explain why Rabbi Yochanan is considered more authoritative than Rav, despite Rav being on par learning-wise with Tannaim and his apparent failure to be considered as such.

According to the first option, it is certainly possible that the generation that formed the transition between the Tannaim and Amoraim (see Meiri/introduction to Avos who clearly defines this transition, and  includes Rav in this list but not Rabbi Yochanan) were close enough to the מסורות  of the Tannaim  that their מסורות  was sometimes treated as almost or equally as pure.  We would still need to explain why Rabbi Yochanan, though living in the same period, was not included in this transition generation but still was considered more authoritative than Rav when it came to disputes between the two of them.

According to the third reason, it is very possible that when Rebbe and his  court sealed the Mishna as authoritative over all future generations, they excluded certain specific Amoraim who were particularly close to them in terms of the chain of transmission from this limitation, and even conferred them with the type of neo-Tannaic semicha (ordination) needed in order to be exempt from this ruling.

An example of Rebbe’s close relationship and partial ordination of Rav before he went to Bavel can be found in Sanhedrin 5a-5b  where Rabbi Chiya arranged for רשות  (permission to rule) to be given by Rebbe to Rabbah bar bar Chana and to Rav. It is apparent from that sugya that Rav was actually the greater of the two in learning!

It is important to note that this was not actual סמיכה  as in the ordination passed down from Moshe, which might or might not have been held by Rav and/or Rabbi Yochanan, but נטילת רשות להורות  (permission to rule) and to be exempt from liability for errors made- this on its own does not serve as proof of Rav’s exclusion from submission to the Tannaim, but simply as an illustration of his extra closeness to Rebbe.

As Rabbi Yochanan remained in Eretz-Yisroel and might also not have had this same connection to Rebbe, it is possible that he simply never received this special status from Rebbe, and was thus bound by Rebbe’s decree that the words of the Tanaim would be henceforth binding on the Amoraim.

This distinction between Rav and Rabbi Yochanan seems to be mentioned by the Ritva (quoted in Shita Mekubetzes, Kesubos 8a) in order to answer our original question- He explains that we follow Rabbi Yochanan over Rav in a local dispute between the two of them due to Rabbi Yochanan’s greater wisdom but that unlike Rav, Rabbi Yochanan never had the “luck” to be ordained as a Tana in the way that Rav had been.

From the fact that the sugya in Kesubos chose to use Rav’s superior status to refute the proof against him from the beraisa rather than give the answer it gave to uphold Rabbi Yochanan against the same beraisa, it seems that this status is strong enough that it is preferential at least to a “forced” answer, and we indeed see various places in the Rishonim (see Tosfos/Menachos 5a for example)  where they say that instead of giving whatever answer is given to reconcile Rav’s words with a seemingly contradictory beraisa, the Gemara could indeed have chosen to use his superior status as a Tana to answer the question.

Yet in contrast, from the fact that the Gemara regularly poises difficulties on Rav’s statements from various Tannaic sources, it is clear that finding a “non-forced” way of reconciling such difficulties is preferable to resorting to his Tannaic status, which is evidently significantly weaker than that of regular Tannaim.

we see further that some Rishonim in our sugya rule like Shmuel against Rav (see for example Tosfos Eruvin 49b and Piskei Rid Eruvin 50b), even though the halocho almost always follows Rav in a dispute with Shmuel, specifically because the beraisa supports him, implying that this status is not absolute, and that although he may indeed argue with a Tana, other Tannaim are more authoritative than him and the halocho follows them against him, at least when Shmuel rules against him (see though Rif and Rosh who base their ruling like Shmuel on other factors as well.)

It is also clear that his status as a Tana is limited to his ability to argue with Tannaim, but does not limit other Amoraim’s ability to argue with him, or in the case of Rabbi Yochanan in particular, to be considered more authoritative than him when involved in a direct dispute with him.

As such, it seems that the third possibility we raised fits best with Rav’s exceptional status, and that the superiority of Tannaim over Amoraim is not based on either their chronological precedence or their innate superiority in learning, but rather on the authority given by Rebbe’s Beis Din to them over Amoraim, something he likely excluded transition figures such as  Rav from.

While his court excluded Rav from the requirement to submit completely to Tannaim, he did not include him in the list of Tannaim that Amoraim are required to submit.

As a curveball, there is a fourth approach which I would like to entertain.

Perhaps, there was never a specific court ruling or decision that Amoraim may not argue with Tannaim, but it was simply an unwritten agreement that developed amongst the Amoraim of the transition period, for some of the above-suggested or other reasons, which later became established practise.

Amongst the Amoraim of this transition period, some were more accepting of this approach than others, and while Rabbi Yochanan went along with it, Rav did not, as least as far as he himself was concerned.

We can recall that Rav was generally fiercely independent in his approach to halachik decision making and did not accept the many rules of psak that delegated more authority to certain Tannaim over others (see recent  post on Eruvin 47), rules which Rabbi Yochanan did accept and have generally  been accepted to this day.

As usual, there is much more to bring, much more to analyze, and the Rambam’s view on all of this  requires its own unique treatment-hopefully we shall have the opportunity to revisit this again when the topic next occurs.

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 46 and 47 Rules of psak: הלכה כדברי המקיל בערוב, דעת יחיד בשעת הדחק, ספק דאורייתא לחומרא ,ספק דרבנן לקולא

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This daf is heavily concentrated with some of the most important principles of psak halacha that it is even harder than usual to do it justice.

We shall suffice with a brief explanation of some of them and some notes based on an initial analysis of how they are applied on this daf, hoping to build on what we have already done and continue to do based on their application in other sugyas.

The Mishna on Eruvin 45b recorded a dispute between Rabbi Yochanan ben Nuri and the Chachamim whether a person can acquire his shabbos techum during twilight of erev shabbos if he is asleep.

Rabbi Yochanan ben Nuri rules that he can, whereas chachamim hold that seeing as he was not awake at the time, he did not acquire his 2000 amos from the place where he was, and is limited to the 4 amos in which he was.

Rabbi Yehoshua ben Levi is quote by Rav Yaakov bar Idi as ruling in accordance with Rabbi Yochanan ben Nuri’s lenient opinion.

Rabbi Zeira asked Rav Yaakov ben Idi whether he heard this from Rabbi Yehoshua ben Levi as a specific ruling relating to this case, or deduced it based on a general rule of his, which the Gemara identifies as “הלכה כדברי המקיל בערוב” -the law follows the lenient opinion regarding Eruvin.

Rav Yaakov bar Idi replied that he heard it as a specific ruling, and the Gemara explains that this specific ruling was needed in addition to the rule to teach us that this rule applies even when the lenient opinion is a דעת יחיד (single opinion) against the majority opinion, such as in the case of Rabbi Yochanan ben Nuri versus the Chachamim.

It is not clear at this point whether this leniency is meant to apply only to this case, or whether this case now serves as a precedent for all the laws of Eruvin, or perhaps even all rabbinical disputes

If the former is correct, we need to explain why this dispute in different to all other disputes regarding Eruvin. If the middle option is correct, we need to explain why the laws of Eruvin are treated more leniently than other rabbinical laws, where we are only lenient when there are as many lenient views than stringent ones.

If the latter is correct, we need to explain why we are so lenient with all rabbinical disputes to the point of pushing aside the general rule of אחרי רבים להטות – following the majority, and defend this statement against any other statements of Chazal that imply the opposite.

We also need to investigate whether Rabbi Yehoshua’s rule of הלכה כדברי המקיל בערוב is merely an application of the general rule of ספק דרבנן לקולא (as in the third option above), with the assumption that an unresolved dispute has the status of a doubt, and whose lenient applications are thus shared with all unresolved rabbinical disputes, or whether it is an independent rule that has its own unique leniencies not shared with other rabbinical disputes (as in the middle option above.)

We have touched on a similar question in an earlier post (Eruvin 35-36) where we discussed ספק עירוב לקולא – the rule that in matters of doubt regarding the validity of an eruv, we are lenient, and there is appeared that the Gemara understood this as simply an extension of the general rule of ספק דרבנן לקולא.

Assuming that a ספיקא דדינא ( a doubt as to which authority the halacha follows) is an extension of the concept of ספק דרבנן, this would imply that a dispute regarding Eruvin should also simply be an extension of the rule of leniency in the case of a dispute regarding any rabbinical law.

However, from a question asked by Rava on the Gemara’s understanding of Rabbi Yehoshua ben Levi’s statement, it seems that he understands that disputes regarding Eruvin have their own unique leniences.

Rava asks why there was even a הוא אמינא (initial thought) that we would not follow a lenient single opinion against a stringent majority opinion when it comes to Eruvin?!

He points out that this should be obvious, seeing Eruvin is a rabbinical requirement, and in rabbinical disputes, we always follow the lenient opinion, even if it is an individual against the majority!

Various proofs are brought to dispute this assumption of Rava, and this issue is far from resolved at this point, but from his question, it certainly seems that he understood that his colleagues saw Rabbi Yehoshua ben Levi’s lenient view regarding Eruvin to be unique to Eruvin.

Though Rava’s assumption seems to be rejected, the Gemara clearly seems to understand than in another unique area of rabbinical law, namely the laws of mourning, the rule of הלכה כדברי המקיל באבל applies even when the lenient opinion is a single authority versus the majority!

More than that, Tosfos seems to understand that this rule that we follow the lenient opinion in the laws of mourning applies even on the first day of mourning which is דאורייתא (biblical) in nature, suggesting that this might be the case regarding biblical laws of Eruvin too (such as the larger techum of 4 parsah (about 16 km) which some view as deorayso, or when enclosing a real public domain), certainly a huge חדוש (novelty!)

Given that the usually undisputed rule regarding biblical laws is ספק דאורייתא לחומרא – in disputes we follow the stringent opinion, this is nothing short of remarkable, and we cannot escape the need to distinguish between the laws of mourning and possibly also Eruvin, from other rabbinical, and even biblical laws.

There is a fairly well- known dispute amongst the Rishonim regarding the status of the rule of ספק דאורייתא לחומרא .

The Rambam (see Issurei Biah 18/17, for example) opines that this rule is itself only rabbinical in nature, and that on a biblical level, one is not required to be stringent in the case of a doubt- the Torah by default forbids things that we know are forbidden and not things whose forbidden status is subject to doubt.

In contrast, when it comes to the status of rabbinical laws, he is of the view that all rabbinical laws start out with biblical status by default, based on the commandment of לא תסור (do not go against their words…see for example intro to M.T)

Although the various leniencies Chazal applied to their own laws can still be explained based on the fact that the Torah gave them the power to both make and define their own laws, in the case of a doubt, this is not necessary, given that the Rambam considers all doubts to only be subject to rabbinical law, and the Rabbis chose to be stringent with biblical doubts and lenient with their own.

This means that theoretically, in cases of doubt, Chazal have the authority to apply any leniencies they choose, even if the doubt is biblical in nature- they simply chose to be stringent most of the time.

In the case of mourning laws and possibly Eruvin, it is thus quite legal for Chazal to choose to be lenient even in cases of biblical level doubt, and perhaps out of sensitivity to a mourner already in such a sad state, and a person stuck outside his techum on shabbos, they chose to be lenient.

Whether this can be extended to following a single lenient opinion against the majority in a biblical matter is less straight-forward, as it is possible that even the Rambam admits that when there is clear majority on the side of stringency in a biblical dispute, it is a biblical requirement to follow the majority, based on אחרי רבים להטות .

It could be possible, however, that the Rambam holds that אחרי רבים להטות only applies when the dispute has come to the great Sanhedrin, but that a dispute that has not come before the great Sanhedrin had no such law, and remains a bona fide ספק , over which Chazal have total control.

However, some other Rishonim )see for example Rashba, Kiddushin 73a regarding Mamzer) are of the view that the requirement to follow the stringent opinion in case of doubt is a biblical requirement, and according to them, it seems impossible for Chazal to be able to push this rule aside in biblical aspects of Eruvin and the laws of mourning.

The mere fact that Tosfos suggests that the laws follows the lenient opinion even in biblical disputes when it comes to mourning and Eruvin, as well as the proofs he brings for it, seem to offer support for the Rambam’s view!

When it comes to most of the laws of Eruvin and mourning which are clearly rabbinical, Chazal clearly have total authority over their own laws, and if for the reasons suggested above, or other reasons, they chose to treat Eruvin and mourning even more leniently than their other laws and follow even a single lenient opinion against the majority, the were certainly within their mandate.

For further analysis, particularly regarding whether we follow this leniency even against the majority, the Ramban’s long treatment on the daf is essential reading.

We have seen above that although regarding the laws of mourning, and possibly also Eruvin, we may follow a single lenient opinion against a stringent majority, this is not necessarily the case in other rabbinic laws.

Whereas we are usually lenient in cases of doubts and disputes regarding rabbinic laws, where the stringent opinion is the majority, the majority might still prevail.

Yet there is a time where it seems to be permitted to follow a lenient single opinion against a majority stringent opinion, under certain circumstances, and that is the case of שעת הדחק – an emergency.

There is a debate (Niddah 2a) between Rabbi Eliezer and Chachamim regarding whether a woman who has not had a period in 3 months and then has a period may assume that until that moment, she was still pure- this would affect the purity status of whatever she was in contact with before.

According to Rabbi Eliezer, everything she was in contact with until now is treated as pure, whereas the Chachamim rule that anything susceptible to becoming impure from contact with a Niddah that she was in contact with over the 24 hours prior to her period is considered impure.

This is a rabbinical rule due a concern that she was already a niddah earlier, even though on a biblical level, we would be lenient.

Rebbe commented that he once mistakenly thought that the law is like Rabbi Eliezer and declared the items in question to be pure.

When he later discovered that the law was like the Chachamim, he did not rule them to be impure, saying that כדאי הוא רבי אליעזר לסמוך עליו בשעת הדחק – in an emergency, one may rely on Rabbi Eliezer.

The Gemara understands this to mean that unlike Rava’s suggestion, we normally follow the stringent majority against a lenient single opinion even in rabbinical disputes, and only in a שעת הדחק, the minority view may be followed.

It follows from this that even according to Rava’s antagonists, a דעת יחיד may be followed in an urgent situation, at least in a rabbinical matter.

What is not clear yet is the scope of this rule:

  1. Does it apply even to a biblical level dispute? According to Rambam’s above quoted view, it is certainly possible, but according to the stringent views that hold a biblical doubt is subject to biblical level stringency, it seems less likely that שעת הדחק would override that rule.
  2. Does it apply to any dispute, even one already resolved, or only to an unresolved dispute- The Gemara seems to take it for granted that this is limited this to an unresolved dispute (possibly similar to that between Rabbi Yehuda and Chachamim regarding the times for Mincha and Maariv- Brachos,) and that in a dispute that has already been resolved, שעת הדחק would not be a factor. It is still unclear, however, what the Gemara means by a resolved dispute- is this only one that has been resolved by Sanhedrin, do even the Amoraim count, or even post Talmud Geonim and Rishonim?
  3. What is the definition of שעת הדחק as far as this leniency is concerned- Tosfos seems to identify two different levels of שעת הדחק !

The above questions can have immense ramifications in many areas of contemporary halacha, and as we move through the daf cycle, we hope to collect more evidence to help us answer them!

Later on Eruvin 46 and moving onto 47, we move to a different set of rules of psak halacha.

Here we deal with the weight given to various Tannaim against one another when a dispute is given.

Various rules of thumb are given, amongst them:

  1. The halacha follows Rabbi Akiva against a single colleague of his
  2. The halacha follows Rabbi Yossi even against a majority
  3. The halacha follows Rebbe against a single colleague of his

Various other now well-known such rules are also stated, after which רב משרשיה claims that none of these rules actually apply, meaning that each case is in fact to be treated on its own merits- bases this on various ruling of Rav which seem to negate these rules.

After various examples brought to back this claim up, it becomes clear that even those who accept these rules must accept that there are some exceptions. היכא דאיתמר איתמר – in a place where a definitive ruling was made against the general rule, that ruling overrides the general rule. Only in a place where no definitive ruling has been made, do we apply these rules of thumb.

Incredibly, Rav does not except the existence of these rules at all, and even in undecided cases, leaves it up to the individual current authority to rule according to which argument makes most sense to him.

As Rabbi Yochanan does except these rules, the irony is that by the rule of thumb that we follow Rabbi Yochanan against Rav, it should follow that these rules are indeed authoritative, and Rashi on the daf says so explicitly, but what is to force those who choose to follow Rav to accept a ruling based on a rule they do not accept in the first place? Seems Kind of like what came first, the chicken or the egg, but in truth has a lot to do with the power of מעשה בית-דין which still applied to an extent in the time of Rabbi Yochanan!

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 44 and 45 Returning from emergency travel on shabbos

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The other examples that Ullah brings are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 כתיבה וחתימה טובה  

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

Eruvin 37 and 38 Yiftach’s daughter and ברירה

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eruvin 35 and 36 ספק דרבנן, ספק עירוב, and חזקה

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

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

Various examples are given:

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

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

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

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

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

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

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

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

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

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

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

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

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

1.       He is not sure if he actually immersed himself

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Such is the beauty and complexity  of Gemara!

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

Eruvin 33 and 34 שבות בין השמשות and Eruv Techumim

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Eruvin 33 and 34 שבות בין השמשות and Eruv Techumim

Our Masechta is starting to move deep into the detailed laws of עירוב תחומין, another type of Eruv that we have not focused on much till now.

In addition to the forbidden melacha of transporting things from one domain to another, there are also limitations on where a person himself may walk on Shabbos.

Though there is no prohibition on walking from one domain to another, there is a prohibition of walking outside one’s תחום של שבת, one’s shabbos domain.

This domain is measured 2000 amos (around or a little less than a km) from the place where one is or intends to base oneself for shabbos, as at nightfall before shabbos.

By default, it is measured from one’s own house, or if in a halachically defined city or enclosed private property, from the halachik boundaries of that city or private domain.

There is a debate on the next daf (Eruvin 35) as to whether the law of תחומין is biblical or rabbinical, but the 2000 Amah domain is very stringent, to the point that if someone leaves this area on shabbos, he might have to stay put within his own 4 amos for the rest of the shabbos!

Clearly, this has a major impact on people who wish to walk from one village to another on shabbos, sometimes even from one suburb to another, if the suburbs have significant open space between them (about 139 amos, which is not very much.)

In suburban neighborhoods with large open yards, this could even affect walking from one house to another, as each house might make up its own תחום!

This also applies to going for nature walks or hikes outside fenced resorts, or even within unfenced resorts.

To address this problem, Chazal allowed one who intends in advance to travel more than 2000 amos but less than 4000 amos from his shabbos base, to make an ערוב תחומין before shabbos.

By placing some food just under 2000 amos away from his base and intending to make that place his symbolic shabbos base, he would be permitted to go anywhere with a 2000 amah radius of where he put his food, rather than from his house.

The disadvantage of doing this, is that his house will now be on or at least closer to the boundaries of his new shabbos domain in the other direction, limiting his walking over the same shabbos in that direction- as such, his shabbos movements need to be planned very carefully.

One of the requirements for the food used for the Eruv is that the food has to be accessible from the place that one makes one’s new symbolic shabbos base.

The Mishna on 32b tells us that If one places one’s Eruv food on top of a tree, this might thus present a problem.

If one’s intended shabbos base is at the bottom of the tree, but the Eruv is more than 10 handbreadths high, and more than 4 handbreadths wide, the part of the tree above 10 handbreadths might form its own private domain.

This means that carrying his Eruv from the top to the bottom, assuming the tree is in a public domain, would be forbidden, and the Eruv would thus be invalid.

The mishna rules that if the Eruv is below 10 handbreadths, the Eruv is valid.

This seems to be despite the fact that an area between 3 and 10 handbreadths above a public domain might be considered a כרמלית (neither a private or public domain) and carrying the Eruv from there to one’s shabbos base at the bottom would thus be rabbinically forbidden.

In addition, there is a rabbinical prohibition against making use of a tree on shabbos, which extends to removing something from it.

As such, regardless of where it has been placed, it should be forbidden to remove it, and the Eruv should be invalid.

The Gemara solves the later problem (and according to Rashi, by implication the former too) by explaining that the validity of the Eruv is based on whether it may be carried to one’s shabbos base during the period of בית השמשות on shabbos eve.

Although its precise time and definition is also subject to much debate, this is generally viewed as the time between שקיעה (sunset) and צאת הכוכבים (the time the stars come out), and is also referred to as ספק חשכה ספק אינה חשיכה , a time when there is a doubt whether it is considered night yet or not.

This means that during this time, it is a doubt whether it is shabbos yet or not.

When it comes to biblical law, it goes without saying that one has to treat this time as if it is shabbos, due to the rule of ספק דאורייתא לחומרא .

Yet when it comes to rabbinical law, it is possible that Chazal followed the general rule of ספק דרבנן לקולא and did not treat that time as shabbos, thus making performing rabbinically prohibited activities (שבותים) permitted during that time.

It is also possible that seeing as Chazal were aware of the ambiguous nature of this period, but did not want to confuse us whether it is shabbos or not, they intentionally applied rabbinical prohibitions during this time as well, making it no longer a question of doubt.

The Gemara explains further that the author of our Mishna follows the view of Rebbe, who holds that Chazal did not impose their own rabbinical shabbos restrictions during this twilight period.

As such, at the crucial time of בין השמשות that determines the validity of the Eruv, the biblical prohibitions of removing something from a tree (or transferring it from a כרמלית to a רשות הרבים) does not apply, and the Eruv is valid!

On 33a, the Gemara brings an explicit Beraisa where Rebbe and the רבנן argue about an Eruv placed at a height of between 3 and 10 tefachim on a tree.

Rebbe is of the view that even though this area is a כרמלית and the Eruv may thus not be moved to the public domain at the base of the tree on shabbos itself, seeing as this rabbinical prohibition did not apply during בין השמשות, the Eruv is valid for the entire shabbos.

The Rabbis disagree, arguing that any Eruv that cannot be moved to one’s shabbos domain, is invalid- the Gemara seems to understand that while they agree that בין השמשות is the definitive time, they hold that these rabbinical prohibitions apply during בין השמשות as well.

This crucial debate is also found on 34b, regarding the same Mishna’s permission to place the eruv in a pit deeper than 10 tefachim, even though it too forms its own private domain.

The Gemara understands that this part of the mishna is referring to a case where one’s chosen shabbos base above the pit is a כרמלית , and that this once again reflects the lenient view of Rebbe that rabbinical restrictions of Shabbos do not apply בין השמשות.

It follows from all the above that according to Rebbe, though biblical prohibitions of shabbos apply from sunset on Erev shabbos, activities that are only forbidden rabbinically remain permitted until dark, which could be extremely useful for those well versed in shabbos laws (and very dangerous for those who are not.)

According to those Rabbis who disagree with him, both biblical and rabbinical prohibitions come into force the moment the sun sets on Friday. (I have assumed for purposes of this post that what we refer to today as sunset is the same as the talmudic concept of שקיעה, something which is in fact the subject of an entirely different discussion.

Given the rule that הלכה כרבי מחבריו, (the law usually follows Rebbe against his colleagues,) it seems likely that his lenient ruling here might actually be authoritative.

However, we need to examine closely at least one other major source on this subject.

This is an explicit Mishna (Shabbos 34a ) which states that during ספק חשכה ספק אינה חשיכה , the twilight period, certain actions forbidden on shabbos are forbidden, but others are permitted.

At first glance, this might seem to support the lenient view of Rebbe.

However, when examining the list, one finds some things that are only rabbinically forbidden on shabbos which one may also not do during twilight!

The list of forbidden things:

  1. separating tithes from ודאי (produce that has definitely or probably not been tithed)
  2. Immersing new vessels (טבילת כלים)
  3. Lighting candles

Whereas lighting candles is clearly a biblical prohibition, separating tithes and immersing vessels seem to be rabbinical prohibitions, yet they are still forbidden during twilight!

The list of permitted things:

  1. Separated tithes from דמאי (produce bought from an ignorant person who has probably but not definitely already separated tithes.)
  2. Making an Eruv
  3. Insulating hot food

The above 3 are all rabbinical requirements.

This Mishna seems to take a view between that of Rebbe and the Rabbis and permit certain rabbinically forbidden actions during twilight but forbid others.

This needs serious clarification, and there seem to be two main approaches to reconciling these Mishnayos amongst the commentators, but that is it for our daf!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Perhaps, however, this assumption is not fully necessary?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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