Category Archives: General Concepts

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

Posted on by

In the Mishna on 12b, there is a 3-way dispute between Beis Shamai, Beis Hillel, and Rabbi Eliezer, regarding what is required to mark the open fourth side of a מבוי closed on the other 3 sides.

Whereas we have been working until now under the correct assumption that the lenient view requiring only one post on either side is authoritative, we see that though this is the view of Beis Hillel, Beis Shamai require a post and a beam, and Rabbi Eliezer requires 2 posts, one on each side.

In an early post )Shabbos 130b), we discussed the way Rabbi Eliezer was referred to by the Gemara there as a שמותי , a term that the Yerushalmi quoted in the second explanation in Rashi there, as well as in Tosfos, understood to mean that he belonged to Beis Shamai.

However, as we also know )Avos 2/9) that Rabbi Eliezer was one of the greatest students of Rabban Yochanan ben Zakai, who received his tradition from both Hillel and Shamai, it is very possible that he had influence from the scions of both houses.

In this Mishna, it seems that Rabbi Eliezer was neither bound completely to either Beis Hillel or Beis Shamai, but fiercely independent.

This is somehow despite the fact that he took such pride in the fact that he never said anything that he never heard from his Rabbi (Sukkah 28a.)

This can be explained by the fact that his tradition came directly from Rabban Yochanan ben Zakai who learnt from both Hillel and Shamai, as mentioned above, and thus sometimes was in line with Beis Shamai and sometimes with Beis Hillel.

It can also be that what he meant was not that he heard every precise ruling from his Rebbe, but that he always followed the methodology he learnt from his Rebbe, no matter what conclusion it led to, thus ironically adding to his independence in the realm of practical halacha.

It is a common experience that independents, despite often being revered on both sides of the aisle, usually struggle for acceptance on either side.

Perhaps Rabbi Eliezer was both great and confident enough to have his feet in both worlds, but still able to interpret the Torah and rule according to his own view, even taking a separate stand from both strong “councils of sages.”

Even for the usually tolerant members of Beit Hillel, despite his having learnt from some of their teachers, he was never “Beis Hillel” enough, but a “שמותי”

This independence and consequent lack of acceptance came to a head in the case of the stove of Achnai (Bava Metzia 59b), where his refusal to accept the majority opinion of all the other sages resulted in his virtually unprecedented excommunication, which according to the first explanation in the above-quoted Rashi, was the reason for his being called a שמותי”” , from the word “שמתא” (excommunication.)

The truth is that lacking the safety in numbers that members of both main parties tend to have, independents often suffer the most, and are treated more harshly by members of the dominant party than members of the opposition are treated, even if their ideologies are somewhere in-between.

Whereas Rabbi Eliezer’s independence was virtually stamped out by his colleagues, who burnt all the things that he had declared pure, Beis Hillel are lauded towards the end of daf 13b for their respectful attitude to the views of Beis Shamai, not only quoting their views, but even mentioning them before their own, as illustrated in a Mishna in Sukkah brought by our Gemara.

My beloved son, Noam, asked me the other night, while learning mishnayos Shabbos together, why Beis Shamai are mentioned first so often in Mishnayos even though Beis Hillel are more authoritative.

I answered that this could very well be a reflection of this tolerant attitude first illustrated in the Mishna in sukkah quoted by our Gemara, which Rabbi Yehuda haNasi, a direct descendant of Hillel, carried on when he compiled the Mishna.

This tolerance of the other side, is given in our Gemara as the reason that the view of Beis Hillel became normatively accepted over that of Beis Shamai- In order for one’s view to be accepted, it seems important that one is open-minded, respectful, and confident enough to hear, consider, and even quote dissenting views. This shows that this view was acquired after fully considering all sides and without automatically putting down the other side and is thus a view worthy of acceptance.

Our Gemara points out that this preference given to Beis Hillel was not because the rulings of Shamai were not legitimate, but rather for the above reason- objectively speaking, “אלו ואלו דברי אלוקים חיים”-“these and those are the words of the living G-d!”

It might seem logically impossible that two seemingly contradictory views can both be considered objectively part of the divine Torah, but this seems to be precisely what the Gemara is saying.

The Torah is the word of the “living G-d” and thus constantly branching off into different explanations and possibilities.

So long as different views are all based on the “מסורה”, that living chain of transmission that goes back to Moshe at Sinai, it is not so much the actual conclusion that makes them legitimate, but the way that was achieved.

Not every alternative view has halachik legitimacy- only those that can be justified based on previous stages in the tradition.

Both Beis Hillel and Beis Shamai were required to back their views up with pessukim in the Torah, or oral traditions dating back to Moshe at Sinai, and the same applies to those that come after them.

It is not tolerance alone that gave Beis Hillel their authority, as reading this sugya in isolation might imply. In other places, their authority is derived on their greater numbers and on the “voice from heaven” )see Eruvin 7a for example) that proclaimed that the halacha is like them.

In fact, in the earlier sugya in this masechta, it seems that before this voice from heaven, one was permitted to choose which one of these great schools of Torah to follows, and that according to those who did not consider a voice from heaven to be authoritative, such as none other than Rabbi Yehoshua himself, this was permitted even after this voice from heaven, despite the other factors in Beis Hillel’s favor!

We have explained the idea of “אלו ואלו” with the understanding that in matters subject to debate, there is no objectively true answer, but both sides are legitimate “Torah”- the superiority of Beis Hillel is only practical, and as a result of the traits they possess, their superior numbers, and the voice from heaven.

Yet the Rambam appears to limit this idea significantly.

According to him (Mamrim 1/4), matters mentioned explicitly in the Torah or received orally through tradition tracing back to Moshe’s revelation at Sinai are never subject to debate.

Only matters that are derived though Chazal’s use of the rules for interpreting the Torah, can be subject to debate.

Even the later, were subject to the final ruling of the great court, so long as that court was still functioning, and debate was only legitimate until such a ruling was given.

Once it ceased to function, such matters that had not yet been resolved became subject to debate again.

Given that many or most of the disputes between Beis Shamai and Beis Hillel occurred at a time when the great court was still functioning, it follows that these disputes were subject to a final ruling by that court.

It is those rulings, according to the Rambam, not the tolerance of Beis Hillel or the voice from heaven, that were authoritative.

This fits well with the view that the main reason for their greater authority was their superior numbers, which would have allowed them to dominate the great court they were part of.

How the Rambam would explain the other reasons given for their authority, is subject to further analysis- it is possible, that as might often be his way, he simply regarded one source to be more authoritative in keeping with other accepted rules of halacha, and rules accordingly.

It is also possible that it is precisely that tolerance and extra willingness to engage in respectful debate that swung the majority of the Sanhedrin, including the “independents” towards their side, and that the “voice from heaven” was the מכה בפטיש (final blow) that brought them to this decision.

This also explains the harsh treatment meted out to Rabbi Eliezer by the members of Beis Hillel.

According to the Rambam above, even matters that were subject to dispute, were eventually concluded by the Sanhedrin while it functioned , and thereafter, no-one had the authority to act to the contrary.

Their opinions were still recorded out of respect, but they were now out of the realm of accepted halacha.

They might still have theoretical value in the study-halls, and even be considered “the words of the living G-d,” but the option for anyone to rule accordingly was now closed.

It follows that in post Sanhedrin times, debate in practical halacha is possible once again, and there is no threat of excommunication for those who follow their own or other minority views, but only in matters that had not already been decided by the Sanhedrin, and in matters that fit the Rambam’s strict criteria for debate.

If so, given that the Talmud itself was sealed by Ravina and Rav Ashi long after the Sanhedrin had ceased to function, how do we explain the universally accepted binding authority given to it by all followers of the מסורות?

We will have to leave this for a difference discussion, but a good place to start is the introduction of the Rambam himself to the Mishna Torah, the great masterwork we just quoted from.

Does everyone agree with the Rambam’s strict criteria regarding which matters are subject to debate, and does the huge collection of debates scattered throughout the Mishna and the Gemara back up this very strong claim? This too, will need to be left for a later discussion.

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

Shmuli Phillips Ari Kahn Johnny Solomon

Eruvin 7 A philosophy of stringencies or leniencies

Posted on by


There is a tendency in parts of the Torah world to err on the side of caution in all halachik matters and take on the more stringent opinions in all areas of halacha.
On the other hand, there is a tendency amongst other sectors to constantly search for  leniencies, picking and choosing the easier opinion in each area of halacha.
Are either of the above policies legitimate, or is one perhaps required to choose one or more recognized halachik authorities and follow their views in every area of halacha, irrespective of whether they are lenient or stringent?
On the previous daf, we recorded a dispute between Rav and Shmuel regarding how to close off a מבוי מפולש (alley open to the public domain at both ends.)
Rav ruled leniently like the Tana Kama in the beraisa and held that a צורת הפתח (form of an entrance) on one end and a pole or beam on the other end was sufficient.
On the other hand, Shmuel ruled stringently like Beis Hillel according to Chananya, and held that a צורת הפתח was not sufficient on the one side, but doors were required.
We also saw a different dispute, also between Rav and Shmuel, regarding a    מבוי עקום (bent alley.)
Until then, we had been dealing solely with a straight, rectangular מבוי, closed along its lengths and open either on one or two ends.
This dispute, however, centered around an “L” shaped מבוי that makes a right-angled turn in the middle, but is still open at both ends.
As such, the one end is not aligned with the other, and it is unclear whether such a מבוי  is to be treated at each end as if it is only open on that end, making a pole or beam sufficient, or whether it is to be treated like a מבוי open on both ends to a public domain, and thus require one of the more stringent solutions discussed in the Beraisa .
In this case, Rav is stringent, and holds that it is to be regarded as open on both sides (מפולש), whereas Shmuel is lenient and treats it as if it is only open on one side (סתום).
When we combine both disputes, it comes out that such a מבוי does not require doors according to either Rav or Shmuel.
This is because:
1.       Although Rav rules that it is to be treated like a מבוי מפולש (open alley), he also rules like the Tana Kama that a מבוי מפולש (open alley) does not require doors on either side.
2.       Although Shmuel rules that a מבוי מפולש requires doors on one side, he rules that such a מבוי עכום is to be treated like a מבוי סתום (closed alley.)
 
Despite the fact that we have thus not found ANY authority who holds that a מבוי עכום  requires doors, the Gemara tells us that there was such a מבוי  in the city of Neharda, Shmuel’s home town, and the authorities treated it with the stringencies of both Rav and Shmuel, requiring doors on one side!
This means essentially that they “collected” the stringencies of both, treating it like an open מבוי in accordance with Rav, and requiring an open מבוי to have doors in accordance with Shmuel.
The Gemara is extremely bothered with this approach of collecting חומרות (stringencies,) due to a Beraisa that focusses on general principles applying to disputes between בית הלל and בית שמאי.
The Beraisa rules that the law is in accordance with Beis Hillel in all cases. Yet, one is permitted to choose which of them to follow (the Gemara later explains that this was only before the בת קול  (voice from heaven) that proclaimed that the law is always like Beis Hillel, or according to the view of Rabbi Yehoshua who did not accept the authority of voices from heaven, or that this statement refers to similar disputes amongst later sages that have not yet been resolved.)
The Beraisa, however, condemns those who rely on the leniencies of both of them, calling them “wicked,” and mocks those who follow the stringencies of both of them, applying to them the verse הכסיל בחושך הולך (“the fool walks in darkness”- Koheles 2.)
On today’s daf, 2 approaches are given to explain how the authorities in Neharda had not behaved like “fools” by being stringent like both opinions:
1.       Rav Nachman bar Yitchak is of the view that in practise, even Rav would not be lenient and accept only a צורת הפתח, a claim made already by Rav Huna.
2.       Rav Shizvi seeks to explain this even according to the view of Rav Ada bar Ahava that Rav was indeed lenient in practise. He interprets the Beraisa’s application of the term “fools” to those who practise the stringencies of both houses in a far more limited fashion.
He claims that this only applies when the two disputes are inter-connected, with the lenient view in the one case logically requiring a stringent view in the other, and vice versa.
Where the two debates are completely independent of one another, there is no issue with practicing the stringencies of both.
 
To support the second approach, Rav Shizvi brings the case of the “spine and the skull,” discussed in a Mishna (Ohalos 2/3)
This Mishna deals with the bones of a corpse that are considered like the whole corpse itself and cause everything in the same אהל (covered area) to become impure.
In contrast, most bones on their own do not cause such impurity, and only cause impurity to things that touch them.
It is universally accepted that the whole spine and whole skull, being the most essentially bones of the body, are treated with the stringencies of the body itself, and make everything under the same roof of them impure.
If the spine or skull is no longer whole, however, they are treated more leniently like any other bone.
There is a dispute between בית הלל and בית שמאי regarding how much of the spine or skull needs to be missing for it to no longer be considered whole.
Regarding the spine, בית שמאי holds that unless at least 2 vertebrae are missing, it is still considered whole and the more stringent rules of impurity apply. בית הלל, on the other hand, hold that as soon as one vertebrae is missing, the spine is no longer considered whole and the more lenient rules of impurity apply.
Regarding the skull, בית שמאי are once again stringent and hold that it still considered whole unless enough is missing to cause death in a living person.
בית הלל once again are more lenient, and say if the amount normally removed by a doctor’s drill (possibly in therapeutic  surgery) from a live person is missing from the dead man’s skull, it is already considered incomplete.
Rav Shizvi then refers to the ruling of Rav Yehuda in the name of Shmuel that the same criteria apply to the laws of טריפות (terminally injured animals.)
Missing pieces in the spine and skull before slaughter are counted amongst the terminal injuries that render an animal non-kosher even after proper slaughter.
In order for it to be considered “incomplete” and thus non-kosher, בית שמאי use the more stringent criteria they applied to a corpse, essentially making it harder for it to be considered non-kosher. This turns out effectively to be a leniency in the rules of kashrus.
בית הלל in contrast, use the more lenient criteria they use to release the spine and skull from the more stringent laws of impurity, in effect making it easier for the animal to be considered non-kosher, and thus creating a stringency in the laws of kashrus!
This means that in this case, a leniency in one area of halacha, namely impurity, logically requires a corresponding stringency in a different area, namely the laws of kashrus, and vice versa.
Thus being stringent in both areas, and applying the stringent laws of impurity to a spine missing only one bone, but also considering an animal with such a spine to be non-kosher, is logically inconsistent, as is applying the lenient laws of impurity but also considering it to be kosher.
In such cases, says Rav Shizvi, being stringent like both opinions is logically inconsistent and thus foolish.
A generally cautious and stringent approach to halacha in which the stringencies of different authorities are adopted is thus not considered like a “fool walking in the darkness”  according to his interpretation of the Beraisa, unless it leads to logically inconsistency in one’s behaviour.
It is not stringency per se that is the issue, but logically inconsistent behaviour.

A spine missing one vertebra is either considered whole or not, but cannot be both whole and incomplete.

In order to develop a broader approach to this issue, a number of questions need to be raised, among them:
1.       IS Rav Shizvi’s interpretation of the Beraisa only brought in order to reconcile Rav Ada bar Ahava’s view that Rav was lenient in practise regarding a צורת הפתח in a מבוי מפולש, but Rav Nachman bar Yitchak would still prefer the original and  simpler interpretation of the Beraisa that considers collecting stringencies in general to  be a foolish and dark approach?
2.        If this is not so, we would need to explain why Rav Nachman bar Yitchak doesn’t make the obvious distinction that Rav Shizvi makes and instead chooses a view of Rav that is subject to debate.
3.       If Rav Nachman bar Yitchak indeed favors the original and simple approach, do we accept his broader view of the “fool in the dark” or the more limited interpretation of Rav Shizvi?
4.       If Rav Shizvi’s distinction is to be accepted, does this apply only to the Beraisa’s mockery of the chronic מחמיר  (one who is stringent) or does it also apply to the Beraisa’s condemnation of the chronic מקיל   (one who is lenient.) On the one hand, he only makes the distinction regarding stringency, but the need for consistency within the wording of the Beraisa seems to indicate that it applies equally to leniencies. If this is so, he would see no “wickedness” in “collecting” leniencies from different authorities, so long as they are not logically inconsistent with each other.
 
 
Answering these questions requires a thorough study of all parallel and related sugyos  and the Rishonim who comment on them. As this is way out of the scope of this post, we shall have to wait for future opportunities to revisit this topic!


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 4 “Halacha leMoshe miSinai”

Posted on by

On the previous 2 dapim, as well as the parallel sugya in Sukkah (2b) the Gemara has pointed out a number of times that in contrast to Sukkah which is a biblical requirement, the requirement to close the fourth side of a מבוי  is only rabbinical in nature.

On this daf, Rav Chiya bar Ashi quotes Rav’s saying that the laws of 3 things,  מחיצות  (boundaries that make up a private domain), חציצות  (barriers that get in the way of immersion in the mikveh such as clothes, dirt, knots etc,) and שעורים  (the minimum quantities of things  that are required for various mitzvot or in order to be liable for various transgressions) are all הלכה למשה מסיני  (laws given orally to Moshe on Mount Sinai.)

These are generally understood to not only form part of תורה שבעל פה, but have a full דאורייתא דין (biblical status.)

It is therefore surprising when the Gemara challenges Rav’s ruling about the “Halacha leMoshe miSinai” status of these 3 things, by bringing sources that indicate that they are really דאורייתא, based on verses.

Surely הלכה למשה מסני is just as דאורייתא as things written explicitly in the written Torah or derived from דרשות   from the verses?

The above 3 examples have major impacts on all areas of biblical law, determining biblical status regards to purity, shabbos law, punishments, marriage law, and so much else, that seem to be weigh beyond something without biblical status.

In addition, the first Mishna in Avos makes it clear that the oral tradition originates with Moshe at har Sinai, and what is this if not “halocho leMoshe miSinai?”

The original phrase “halacha leMoshe MiSinai” is found in a few Mishnayos.

We find (Peah 2/6) the following:

  אמר נחום הלבלר מקובל אני מרבי מיאשא שקבל מאבא שקבל מן הזוגות שקבלו מן הנביאים הלכה למשה מסיני בזורע את שדהו שני מיני חטין אם עשאן גורן אחת נותן פאה אחת שתי גרנות נותן שתי פאות

“Nachum the scribe said: I have received from Rabbi Myasha who received from his father, who received from the pairs, who received from the prophets a “halacha leMoshe miSinai” regarding one who sows his field with two types of wheat. If he sowed them for 1 threshing floor, he gives one peah (corner of field left for the poor.) If he made them into two threshing floors, he gives two .

We see clearly that halacha leMoshe miSinai is a tradition received orally that can be traced back through the זוגות   (pairs) to the prophets all the way back to what Hashem taught Moshe on har Sinai, which certainly sounds like something of divine origin which should be accorded biblical status.

In another mishna (Eduyos 8/7), we find the following:

אמר רבי יהושע מקובל אני מרבן יוחנן בן זכאי ששמע מרבו ורבו מרבו הלכה למשה מסיני שאין אליהו בא לטמא ולטהר לרחק ולקרב אלא לרחק המקורבין בזרוע ולקרב המרוחקין בזרוע….

“Rabbi Yehoshua said: I received from Rabban Yochanan ben Zakai who heard from his Rabbi, who heard from his Rabbi a ‘halocho leMoshe miSinai’ that Eliyahu will not come to declare things impure or pure, to distance or bring close, but rather to distance those who were drawn near by force and draw near those who were distanced by force.”

Together with the dissenting views recorded therein, this Mishna presents a fascinating perspective on what the role of Eliyahu haNavi (Elijah the Prophet) will be in Messianic times.

For our purposes, it is interesting to note that  this does seem like  a halachik matter but rather a prediction, and even if it is a halachik matter which prescribes Eliyahu’s behavior in the future, it is in the realm of הלכתא דמשיחא (theoretical halacha only relevant in the messianic era,) yet the phrase “halocho leMoshe miSinai” is still applied.

It is also important to notice that unlike in the previous Mishna which traces this “halocho leMoshe miSinai” back through the sages and prophets, Rabbi Yehoshua only traces this back to Rabbi Yochanan ben Zakai’s Rabbi.”

This could be understood in two ways:

It is possible that this is a different form of “halocho leMoshe miSinai,” less authoritative than the first, perhaps only rabbinic in nature, to which the phrase is still applied – some explanation would be needed for such a novel claim.

It is also possible that this is a regular halacha leMoshe MiSinai with divine origins and biblical status, and for some reason, Rabbi Yehoshua simply gave a more abridged version of his Masoretic chain than Rabbi Myasha did.

In another Mishna (Yadayim 4/3,) we find a major dispute regarding the status of the lands of Amon and Moav (identified by some Rishonim as the land of Sichon and Og which we inherited, i.e.  עור לירדן [Rambam] and others as the core land of Amon and Moav that we were not allowed to conquer [see for example Bartenura.  )

For various reasons, these lands were subject to some of the laws of the land of Israel, and although Teruma (the priests’ portion) and Maaser Rishon (the tithe given to the Levite)  did not need to be separated, either Maaser Sheini (the tithe eaten in Jerusalem or redeemed) or Maaser Ani (the tithe given to the poor)  had to be given. The dispute is to which one of these two needed to be given during the shemita (sabbatical) year, where produce in Israel was exempt from tithing, and the decision was that it should be given to the poor as Maaser ani.

When this decision was reported to Rabbi Eliezer, he responded that they should have no concerns about their ruling, seeing as:

מקובל אני מרבן יוחנן בן זכאי ששמע מרבו ורבו מרבו עד הלכה למשה מסיני שעמון ומואב מעשרין מעשר עני בשביעית

“I have received from Rabban Yochanan ben Zakai who heard from his Rabbi and his Rabbi back till “halocho leMoshe miSinai” that in Amon and Moav, maser ani must be taken during shemita.”

While we see that Rabbi Eliezer put their mind at ease that their ruling was actually a “halacha leMoshe miSinai” (see Bava Basra 12b where we see that this sometimes happened with things said by a great man) it is important to note that this was a matter of prime halachik significance. Maaser sheini was considered קודש (sanctified property) and eating it outside Jerusalem if not redeemed was a punishable offense, whereas maaser ani was considered חולין  (non-sacred) and anyone could eat it anywhere, provided the poor person who received it gave him permission to do so.

We also note that the wording here is more similar to the second case, where the tradition is only traced back to the teacher of the early Tana Rabbi Yochanan ben Zakai, who received the “halocho leMoshe miSinai” , and the rest of the chain of transmission through the pairs and the prophets was not mentioned.

On the other hand, in contrast with the second case which says that the tradition received by Rabban Yochanan ben Zakai’s Rabbi was a “halocho leMoshe miSinai,” here it says that his Rabbi received a tradition that goes back to “halocho leMoshe miSinai,” presumably through the pairs and the prophets.

Yet despite the later point, the Bartenura comments that this is not a regular “halocho leMoshe miSinai” but rather a rabbinic tradition which can sometimes be referred to by that title.

He admits, however, that the Tosefta (Yadayim 2) uses a version of the tradition similar to the first case, involving the pairs and the prophets (and interestingly enough, not Rabban Yochanan ben Zakai’s father), and leaves the question open.

All this seems to point in the direction of the second explanation we suggested, namely that these are just different abridged versions of the same full tradition recorded in the first Mishna of Avos, but essentially mean the same thing.

It is of course possible, that the second case, which does not say “back to halocho leMoshe miSinai” but simply “halocho leMoshe miSinai” could certainly be an example of a rabbinic tradition referred to as “halocho leMoshe miSinai” for some reason.

In another twist, the Gemara (Hagiga 4b) brings our Mishna in Yadayim, albeit with slightly different language.

There the wording is:

לך אמור להם: אל תחושו למניינכם, כך מקובלני מרבן יוחנן בן זכאי, ששמע מרבו, ורבו מרבו: הלכתא למשה מסיני, עמון ומואב מעשרין מעשר עני בשביעית.

 Which is pretty much the same as the version in Eduyos, rendering the subtle difference in language in our version more likely a result of גירסא (different textual variants) than anything else.

Yet, Ironically, Rashi there says explicitly that this is a rabbinic law, and not a standard “halocho leMoshe miSinai.”

______________

Back to our daf:

We have seen that the Gemara has challenged Rav’s ruling that shiurim, mechitzah, and chatzitza are all halocho leMoshe MiSinai based on sources that derive them from verses, which make them  דאורייתא .

We questioned why the term דאורייתא is employed there, given the fact that Halocho leMoshe miSinai should also be considered biblical.

Having examined various usages of this phrase in the original Mishnayos, we have seen that there is a strong possibility, a view accepted by Rashi and the Bartenura, that there are indeed two types of “halocho leMoshe miSinai’- some of completely divine origin as handed over to Moshe “literally,” and others being strong rabbinic traditions that are given this title.

One could certainly entertain the possible that the 3 things mentioned in our sugya are examples of the later category, and thus although still called הלכה למשה מסיני, do not have the stringent status of biblical law.

However, given the major ramifications these rules have on so many areas of biblical halacha including biblical punishments, it seems very hard to reach this conclusion.

Even according to the Rishonim who suggested that there are two different types of halocho leMoshe miSinai, it seems far more likely that these are examples of the first type of pure divine origin.

As such, our original question as to why the term דאורייתא is not employed to them here has not been sufficiently resolved.

Perhaps we can suggest that the term דאורייתא  has both broad and narrow scope- when used on its own, it refers to everything that has the same legal stringency of biblical law, and that includes things written explicitly in the text, things learn from דרשות  on the text, using the principles of דרש  given to Moshe orally at Sinai, as well as laws given explicitly BUT orally to Moshe at Sinai.

However, when used in comparison to other things within the same legal category, it can also be used to denote things that are learnt from the written text, or at least tied to it via דרשות, as opposed to things that were transmitted only orally, ie.  הלכה למשה מסיני.

Addendum: The Meiri on the first daf seems to take a similar approach. He is of the seemingly radical opinion that even the requirement to mark the open side of a מבוי with a pole or beam is of Sinaitic origination and halocho leMoshe miSinai.

He is thus bothered by the fact that it is referred to in the Gemara as rabbinic in nature.

He proposes that although halocho leMoshe miSinai is always of Sinaitic origin, it is sometimes referred to by Chazal as דאורייתא and sometimes as דרבנן.

It seems that his intent is that even though it was given on Sinai and has the stringency of biblical law, it is not actually written in the Torah and thus technically not דאורייתא.

Why Chazal choose sometimes to refer to it based on its halachik status and sometimes based on its technical status requires further discussion, as does how the Meiri explains the “softer” language ימעט  used for a מבוי, according to the first answer in the Gemara on daf 2.

It certainly explains how one version in the sugya on daf 3 treats it more stringently than Sukkah where part of the top is below 20 amos and part is not without going against the usual rule that a rabbinical law is treated less stringently.

In his case, מבוי actually has the halachik stringency of halocho leMoshe miSinai, but due to it not being written explicitly in the Torah, it needs חזוק (strengthening) and is thus treated even more strictly!

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 3 Biblical versus rabbinical prohibitions

Posted on by

We have seen that the maximum height of the beam that goes from one side of a מבוי to the other is 20 amos, and if it is higher than that, it needs to be lowered.

The same applies to the סכך (“roof”) of a sukkah.

There is a debate on our daf regarding the law if only part of the beam or סכך is above 20 amos.

Rabbah rules that in the case of the מבוי, it is fine, but not in the case of the Sukkah.

The Gemara seems to understand that in theory, it should be fine in both cases, but there is a real concern that the lower part of the beam or סכך could rot or fall off, leaving only the higher invalid part. It then brings 2 reasons why in the case of a Sukkah, we take this concern into account, and not in the case of a מבוי.

I wish to focus on the second reason given by Ravina- I have seen that my colleague Rabbi @Johnny Solomon has already focused beautifully as usual on the first reason in his daily post.

Ravina explains that the main difference lies in the severity of the matter at stake.

Seeing as Sukkah is a biblical law, we are stringent and take this concern into account.

As the requirement to mark the fourth side of a מבוי is only rabbinical, this concern is not significant enough for us to consider.

This fits in well with what we saw on the first daf, at least according to the explanation of Tosfos quoted in the previous post, that the added severity of the biblical law of Sukkah is the reason why we use the stronger phrase “it is invalid” rather than the more positive phrase “it should be reduced.”

It also fits well with our general understanding that Torah law is treated more strictly than rabbinical law. One of the most common applications of this is the famous rule that in case of doubt in a biblical matter, we are stringent, whereas in case of a doubt in a rabbinical matter, we are lenient, but there are of course many others.

It thus comes as a surprise when a different version of this discussion is brought in the Gemara where Rabbah rules that we are lenient in the case of Sukkah and allow part of the סכך (covering) to be higher than the maximum height, but are stringent in the case of the מבוי and do not allow part of the beam to be above the 20 amot maximum height.

Two explanations are given, and Ravina explains that we are more stringent with the מבוי specifically because it is only a rabbinical requirement, and thus requires strengthening.

Seeing as people naturally, and as a result of the various halachik leniencies involved, tend to take rabbinical requirements less seriously than biblical ones, Chazal sometimes imposed harsher rules specifically on the former, in order to make us take them more seriously.

We see this idea in numerous other places as well.

There is the famous story of Rabbi Tarfon (Brachos 10b) who went against the ruling of Beis Hillel and lay down to read the night-time Shema, in accordance with the stringent view of Beis Shamai.

He was attacked by robbers and was told by his colleagues after surviving that he got off relatively light, and really had deserved to die for going against the authoritative view of Beis Hillel.

Although missing out on performing a positive mitzva does not incur any official penalty, we seem to see from the above that performing a positive mitzva in a different way to the accepted rabbinic position can be serious enough that the phrase “deserve to die” can be applied to one who does so.

Later in our perek (Eruvin 21a,) we see the following:

דרש רבא: מאי דכתיב ויתר מהמה בני הזהר עשות ספרים הרבה וגו’. בני! הזהר בדברי סופרים יותר מדברי תורה. שדברי תורה יש בהן עשה ולא תעשה, ודברי סופרים – כל העובר על דברי סופרים חייב מיתה.

Rava, based on a derasha from a passuk, exhorts us to be even more careful with דברי סופרים (a term usually applied to rabbinical law, though some analysis is needed regarding this) than one is with Torah law, seeing as Torah law is divided into positive and negative commands (the punishment for avoiding the former being less severe than the later,) whereas anyone who transgresses the words of the סופרים (lit scribes) is liable to death.

This phrase is used explicitly to refer to rabbinical law (Brachos 4b) regarding one who deliberately delays saying Shema until after midnight- We are told in that regard “כל העובר על דברי חכמים חייב מיתה “ – anyone who transgresses the words of the sages deserves to die.

While it is clear that neither of these refer to an official death penalty in a court, and it is even possible that this is also an example of exaggerated language used by Chazal to make a strong point (I am almost finished a detailed Hebrew analysis on this subject,) it is clearly more than enough to show us the seriousness with which rabbinical laws should be taken.

There are many other examples of both approaches we see in our sugya, some which treat rabbinical laws less strictly than biblical laws, and others that treat them even more stringently.

There is also a similar idea we see with Shabbos and Yom-Tov, this time both biblical commandments but of different severity.

Whereas intentionally desecrating the Shabbos can involve a capital transgression, doing the same on Yom-Tov is a regular negative prohibition which incurs at most corporal punishment.

There are also various melachot, namely some of those associated with food preparation, that are permitted on Yom-Tov but forbidden on Shabbos.

Despite the less stringent nature of Yom-Tov, and specifically because of it, we find that Chazal )Beitza 2b) were occasionally more stringent with Yom-Tov, and forbade forms of Nolad (a type of muktza status applying to “newly born/made “ things on Yom-Tov even though they are permitted on shabbos.

Much discussion is needed to define when “more severe” prohibitions are treated more seriously than less severe ones, and when the “less severe” ones are davka afforded extra “protection,” but the analysis required involves many more cases than can be brought in the scope of this post- I will thus make do for now with having raised the issues , and please stay tuned for a future post which will hopefully continue the discussion!

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

Eruvin 2 Introduction, Technical measurements and clean language.

Posted on by

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

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

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

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

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

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

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

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

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

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

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

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

Rabbi Yehuda disagrees and says there is no such requirement.

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

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

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

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

Two answers are given :

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

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

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

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

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

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

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

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

As such, the harsher language is preferred.

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

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

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

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

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

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

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

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

Shabbos 146 Original sin, the purifying effect of Torah, and converts

Posted on by

It is often though that the idea of original sin, that a person is borne already tainted by the sin of the first man, is a Christian concept (some Christian denominations go further and see every-man as not only tainted by, but guilty as a result of it), whereas the Jewish belief is that each person is borne pure and free of sin, and only becomes tainted by his own sins, mainly after he reaches the ages of majority, namely 12 for a girl and 13 for a boy.

Not only does every person need to purge this original sin in Christian theology, but for many centuries, Jews were persecuted and murdered for their very own “original sin”- namely the crucifixion, for which their persecutors held them responsible, despite it having been carried out by the Romans, not the Jews, and in much earlier generations.

One of our most essential beliefs regarding reward and punishment is indeed the idea that איש בחטאו יומת – each man will be “killed” for his OWN sins, and no one else’s (Devarim 24/16; Melachim II 14/6.)

Yet one cannot escape the fact that there are times where the Tanach and Chazal certainly seem to teach that people can be punished for the sins of their fathers.

Rehavam, the son of King Shlomo (Solomon) had his kingdom split into two, with ten of the 12 tribes rebelling and breaking away from him, due to the sins of his father Shlomo, allowing his wives to bring idolatry into the land (Melachim I 11/12.)

Many of the dynasties of biblical kings came to an end with severe retribution, blamed on the sins of the dynasty’s founder (see Melachim I 16/12 for example,) and we are told that every punishment in history involves a component of the original Jewish sin of the golden calf (Sanhedrin 102a.)

In fact, we are explicitly told (Shmos 34/7) that פוקד עון אבות על בנים ועל בני בנים על שלשים ואל רבעים – “he visits the sins of fathers on their sons and grandsons until 3 or 4 generations.”

In dealing with this contradiction, the Gemara (Sanhedrin 27b) concludes that so long as the son is righteous himself, he will not be punished for the sins of his father.

However, if he knowingly follows in the path of his wicked father, he will be punished not only for his own sins but also for those of his father.

Yet even when later generations are not punished for the sins of their fathers, their does seem to be some concept of “original filth,” if not original sin, that Chazal believed in.

On this daf, we are told that when the snake caused Chava, the first woman, to sin, he engaged in sexual relations with her and implanted זוהמא (filth) into her.

Only when the Jewish people stood on Mount Sinai, the filth that the original snake had given to her, was cleansed from them.

The Gemara asked what about גרים (strangers or converts,) who were not present at Sinai- how were they cleansed of their original impurity.

It answers that even though they were not there physically, their מזל (literally star) was there.

Without a full analysis of the subject of whether such statements of Chazal are meant to be taken literally, which is an important discussion in its own right (spoiler alert- very often at least, they are not,) or what the idea of מזל actually means, one can understand that whatever impurity that came into mankind after he/she disobeyed the divine command that very first time by following the snake instead of his/her maker, was somehow made right by the unconditional acceptance of his Torah on Sinai.

That “cleansing” is not only limited to the Jewish people who were on the mountain and their descendants, but to any righteous convert who takes on the law of G-d on his own volition.

Without getting involved in the discussion as to whether this option applies in our time or not, it is possible that this not only applies to a גר צדק ( someone who converts to Judaism,) but also to a גר תושב , someone who accepts upon himself the 7 Noachide laws but remains non-Jewish, at least at a certain level, for he too has accepted upon himself again the most basic level of divine law.

On a symbolic level, every person has his personality (star) that was present at Sinai and that thus has the potential to receive the benefits of Sinai retroactively- all he needs to do is take the plunge.

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

Shabbos 134 Autonomy, Submission, and ירידת הדורות revisited.

Posted on by


On this daf, the Mishna tells us that it is permitted to wash the child before and after his bris.
It then tells us that one may   sprinkle water on him with one’s hands but not with a vessel.
Although it is not normally permitted to wash one’s entire body in warm water on shabbos (a subject for its own discussion,) this prohibition is waived, presumably due to pikuach nefesh considerations.
Rabbi Elazar ben Azaria goes further and permits one to wash the child again on the third day, if it falls on shabbos, because the third day is usually the hardest time during recovery.
The Gemara notes an apparent contradiction in the words of the Tana Kama (first opinion.)
One the one hand, we are told that it is permitted to wash the child properly, but we are then told that one may only sprinkle water on him with one’s hands.
The Amoraim debate how to reconcile this contradiction.
Rav Yehuda and Rabbah bar Avuha understand that the second part of the Mishna is coming to explain the first part- the washing permitted in the first part refers to sprinkling with one’s hand only.
Rava, on the other hand, is unconvinced.
He believes that the word “washing” referred to in the first part is precise, and refers to a proper wash, not just sprinkling.
As such, he interprets the Tana Kama’s words as permitting normal washing with warm water before and after the bris, but only sprinkling with the hand on the third day.
According to this interpretation, Rabbi Elazar ben Azaria then comes and permit regular washing even on the third day.
A Beraisa is then brought which supports Rava’s interpretation.         
The Gemara then relates that this question was brought to Rava and he ruled according to his view, permitting regular washing of the infant.
Rava became ill, and he blamed his illness on himself for going against the view of his seniors, Rav Yehuda and Rabbah bar Avuha, who held that the Mishna only permitted sprinkling water with the hands.
This story needs some explanation: Is a later Amora really not allowed to disagree with an earlier one?  In general, the golden rule is that Amoraim(sages of the Talmud) may not disagree with Tannaim (sages of the Mishna), but the entire shas is filled with cases where later Tannaim disagree with earlier Tannaim and later Amoraim disagree with earlier ones! Moreover, under certain conditions when this happens, the rule is even that הלכה כבתראי, the law follows the later authority!
Not only that, but there are many cases of Rabbi’s who have reached an independent status in  their own learning, disagreeing with their own Rabbis (Reish Lakish being one of the most common examples in his regular debates with Rabbi Yochanan!)
Furthermore, is this not a transgression of the prohibition of superstitious behaviour, namely basing one’s actions on logically unrelated signs with no evidence of cause and effect (see Sanhedrin 66a.)
It seems clear from an earlier analysis we did (at least according to Rambam,)  that the dictum אם ראשונים כמלאכים אנו כבני אדם אם ראשונים כבני אדם אנו כחמורים  (If the early one’s were like angels, we are like people, if they were like people, we are like donkeys- Shabbos 112,) is not meant to be a halachik statement preventing a later authority from differing with an earlier one, but rather a statement about a general trend.
We have discussed this in a previous post, and also noted how in a different sugya (Brachos 20), Rav Papa asks Abaya why it is that the earlier generations merited to experience miracles, and their generation did not.
Rav Papa pointed out that it cannot be because they knew more Torah, as Rav Yehuda’s generation were focused on the part of the Talmud that focusses on damages, and they were focused on all 6 sections of the Talmud.
It also could not be that they understood it better, as Rav Yehuda expressed great difficulty with a certain Mishna while they were able to expand on it with ease.
Yet Rav Yehuda only needed to remove his shoe for rain to come, and their generation could daven all day and nothing happened!
Abaya responded that Rav Yehuda’s generation sacrificed themselves to sanctify Hashem’s name (did risky things to preserve the honor of the Torah) and their generation did not.
It seems from there that the superiority of the earlier generations lies NOT in their breadth of knowledge, nor in their greater analytical ability, but rather in their מסירות נפש (self-sacrifice.)
It  also is not likely to be coincidental that Rava was of the same generation of Abaya, and had disagreed with a ruling of Rav Yehuda, the very Amora that Abaya had praised for his superior self-sacrifice, but NOT for his superior learning.(though see our earlier post on daf 112 where we brought the view of the Rosh that  the rule of הלכתא כבתראי  applied only from Abaya and Rava onwards, and not to the period of Rav Yehuda!)
Perhaps Rava was not concerned so much about the fact that he had disagreed with a senior of his, but that he had disagreed with TWO of his seniors, with none of his own colleagues supporting him, possibly without being sure enough of his own position.
It is one thing to have the authority, or even the knowledge, to disagree with one’s seniors, and to use that right where necessary.
It is another thing completely to do this lightly, without being completely sure that it is the correct thing to do.
When disagreeing with a group of scholars who are both his seniors and more numerous than himself, the question is not only whether one MAY do so, but whether one should.
Perhaps Rava, while aware of his own status and ability to disagree, once faced with his illness , had second thoughts, and was modest enough to look at things from scratch and consider that maybe  his more numerous and older antagonists were indeed correct.
The continuation of the sugya shows that this was indeed the case.
Rava’s colleagues expressed surprise at his recanting, pointing to the fact that a Beraita had been quoted supporting his interpretation of the Mishna.
It is likely that Rava too was aware of that Beraita and took it into account when making his decision.
Yet even with what appears to be good evidence against one’s seniors, one needs to have a very strong degree of certainty that the evidence is irrefutable.
Rava replied to his colleagues that even though the Beraita did indeed support him,  he  saw that the wording of the more authoritative Mishna supported Rav Yehuda and Rabbah bar Avuha better, and therefore had serious reason to reconsider his ruling.
We see from this that though one should  have very strong evidence before disagreeing with a plurality of those who came before you,  once one has that evidence,  an event which could be seen as a sign that one was wrong should not on its own be a reason to recant- that could even  be a transgression of the prohibition of superstitious behaviour!
At most, it should serve as a sign that one should look again at the evidence and be open to the possibility that he was wrong.
As Chazal said, though admittedly in a slightly different context  אע”פ שאין נחש יש סימן  (even though we do not base our actions on superstitious interpretations of events that happen, one can see them as a sign! (Chullin 95b)
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

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

Posted on by


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

Shabbos 119 Siyum Masechta, Barmitzva, and Kabbalat Shabbat

Posted on by


On some of the daf we have been studying, we find a large concentration of references to various minhagim and mitzvot which Chazal praised themselves for doing.
These are the kind of dapim that could have a daf post like ours for virtually every line and choosing which one to focus on is a major effort.
However, “לא עליך המלאכה לגמור ולא אתה בן חורין להפטר ממנה” (the work is not on you to complete, but you are not free to exempt yourself from it.” (Avos 2/16)
Just as a complex and long sugya spanning many daf cannot be given justice in one daf post, neither can daf like these which contain large amounts of short but infinitely deep one-liners.
Let us at least try have a brief look at a few:

  1. The daf opens continuing with the statement of Abaya, who praises himself for making a festive day celebration for his Yeshiva students whenever they completed a Talmudic tractate.
    This is an important primary source for the common practice to make a festive meal, or Siyum, when a tractate is completed, but the implication of the statement seems to be that such an event does not only justify a festive meal, but an actual festival like day, perhaps with the rules of other festive days where melacha is not forbidden, such as Rosh Chodesh, Purim, or Chanuka, on which activities such as fasting, eulogies, and saying תחנונים (supplications) are not allowed.
    We see a similar concept (Bava Kama 87a ) where Rav Yosef declares that if he were to find out that the halacha follows the view that a blind man is liable to perform all commandments, he would make a ימא טבא לרבנן (a festive day for the Rabbis), seeing as Rabbi Chanina taught us (perhaps contra instinctively) that one who is commanded to fulfil a commandment is actually greater than who performs it voluntarily.
    This is the primary source for making a celebratory meal on the day that a boy becomes barmitzvah (and possibly when a girl becomes bat-mitzva), where he celebrates that fact that he is now in the superior category of those who are obligated to perform the mitzvos.
    Once again, although the implication of the words seems to imply that a festive day should be declared, not only for the barmitzvah boy, but for those who participate in his celebration ( a festive day for the Rabbis ,) the minhag seems to be somewhat more limited to having a festive meal, as well as to giving the boy priority when it comes to reading from the Torah- we have not found that this day is treated with the laws of a mini Yom-Tov either for the celebrants or the Barmitzva himself.
    Another apparent anomaly between the wording of Abaya’s statement is that given that the Talmud had not yet been sealed, the completion of a tractate he was referring to is likely to have consisted merely of the Mishnayot, perhaps together with the explanations of the leading Amoraim at the time (שמוש תלמידי חכמים)
    Yet common practice seems to be to only make a festive meal on the completion of an entire tractate of the Talmud as we have in front of us today, including not only the teaching from Abaya and Rava till Ravina and Rav Ashi, but also those parts of the Talmud that were completed after them, as well as all the aggadic material that is not directly tied to the Mishnayot at all.
    Perhaps the answer to these questions is that we do not find that either Abaya or Rav Yosef held that it was an obligation to follow their actions in these cases.
    As such, these were not decrees as such, but simply examples of good practices which the Amoraim performed, and on which similar, but not completely identical later customs were based.
    As a result, all we have is the part of their actions that actually became common practice, and the completion of a tractate and attainment of Bar Mitzva are indeed celebrated with a festive meal, as done by these Amoraim, but not with all the laws associated as a full on celebratory day.
    Similarly, common practice is to follow Abaya’s practise of making a festive meal on the completion of a Masechta, but only when the entire Masechta we have in front of us has been completed.
    Yet, it is always first prize when one can reconcile as much of the existing minhag with its basis in the Talmud as possible.
    Regarding the actual study material required to qualify for a Siyum, our teacher haRav Osher Weiss שליט”א , recently wrote an entire booklet on the subject for his annual shiur on Shas, held in memory of his late wife זצ”ל.
    In addition to showing that a Siyum is also commonly made on the completion of a book of Tanach, he opines that it can be made on an in depth study of even one of the more complex tractates of Mishna, such as those in Zeraim and Taharos which do not have accompanying Talmud Bavli- for more details on his view and reasoning, please refer to this .
    I was then delighted to find that our phrase יומא טבא לרבנן is also used regarding a celebratory meal for one who has recovered from illness.
    The Gemara (Brachos 46a) tells us that when Rabbi Zeira was ill, Rabbi Abahu took it upon himself to make a יומא טבא לרבנן (festive day for the Rabbis) when he would recover.
    The way he fulfilled this commitment was by making a festive meal for the Rabbis!
    This seems to reinforce the common practise of interpreting the phrase יומא טבא לרבנן as a perhaps exaggerated expression referring to making a festive meal, rather than taking it literally as referring to an entire day with the literal status of a minor Yom Tov!
  2. We find in our daf another example of a practice of Amoraim that evolved over time into a related but not identical practice
    Rabbi Chanina used to wrap himself up on Erev Shabbos and say “באו נצא לקראת שבת מלכה”(“let us go out to greet the Shabbos queen.”)
    Rabbi Yannai used to dress up on Erev Shabbos and call out ” באי כלה באי כלה“(come o bride, come o bride.”
    This practice is the primary source for an entire service known as קבלת שבת, greeting the shabbos, which is held as shabbos is coming in, before Maariv.
    It is interesting to note that whereas Rabbi Chanina used to be the one to actively go out and greet the shabbos, Rabbi Yannai used to call to the shabbos to come in, perhaps two different approaches as to how to greet royalty, or alternatively, as to the nature of the special royalty of Shabbos.
    This approach is reflected in the much later Lecha Dodi poem, written roughly 1000 years after the Talmudic period by the Kabbalist of Rabbi Shlomo Alkabetz in Safed, which forms a major part of our relatively modern Kabbalat Shabbat.
    The chorus of the verse calls on us to go out and meet the bride (לכה דודי לקראת כלה), whereas the final stanza ends with the words באי כלה באי כלה , (come of bride, come o bride), as on 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.

Shabbos 112 Yeridas hadoros (the drop in the generations)

Posted on by


On this Daf, we encounter a fascinating narrative where the sage Chizkiya asks his student, the famous Rabbi Yochanan , a complex question regarding the laws of impurity, and is so impressed with the answer he gives that he exclaims: “This is no man” (but rather an angel, according to Rashi’s explanation.)
A different version of this event is then brought where he exclaims: “THIS is a man.” (ie a real man.)
It appears that there could be a major disagreement between the 2 versions of what Chizkiya said regarding whether an outstanding Torah scholar is to be considered the sign of a truly great man, or an angelic quality, virtually out of reach of a mere human being.
The latter is supported by the well-known statement of Chazal (Bava Metzia 59b) that “לא בשמיים היא “- it is not in heaven. The Torah in supposed to be interpreted, and applied by human beings who have reached the highest levels they can as human beings, NOT by angels, and a voice from heaven is usually not admissible when it comes to halachik rulings.
This is further backed up the exhortation of Hillel (Avos 2\5) that in a place where there is no “man”, one should try to be a man!
However, the continuation of the Gemara does seems to leave both approaches as equally viable options.
It brings the famous statement of Rabbi Zeira in the name of Rava bar Zimuna that אם ראשונים בני מלאכים אנו בני אנשים ואם ראשונים בני אנשים אנו כחמורים… -if the early authorities are like angels, we are human beings, and if they are like human beings, we are like donkeys….
One cannot escape the fact that this statement is brought here in order to refer back to the two different versions of Chizkiya’s statement, and does not only consider both options, but sees the relationship between humans and angels as similar to that between donkeys and humans.
It is clear from this that angelic qualities are considered by our sugya to be superior to human one’s in this regard, but the only debate is as to how we are to be view the qualities of those before us and what Hizkiya considered Rabbi Yochanan’s level to be.
There is much to discuss about it, but one thing that is clear from this sugya is that the later Amoraim considered the scholars of the earlier generations to be far superior in their Torah scholarship to those in their generation.
This is so axiomatic throughout the Shas that entire sugyas are based on ensuring that Amoraim statements do not contradict the statements of the Tannaim before them.
It is necessary, however, to define what precisely this superiority is based on, as well as its scope.
We need to investigate whether this superiority based on the assumption that the quality of quantity of their knowledge and/or reasoning was better, the fact that their divine inspiration and guidance was better, their superiority in righteousness, or their being closer in history to the Sinaitic tradition?
Although Amoraim generally could not or would not argue with Tannaim, its is common for later Tannaim to disagree with earlier Tannaim or for later Amoraim to disagree with earlier Amoraim.
In fact, in a dispute between later Amoraim and earlier Amoraim, we ironically apply the rule of הלכתא כבתראי – the law is like the later authority! (see however Rosh, Bava Metzia 57 who opines that this rule only applies from Abaya and Rava onwards and not before, against the Rif who seems not to differentiate.)
How does this fit in with the idea of אם ראשונים כמלאכים?
In a fascinating case (Brachos 20), Rav Papa asks Abaya why it is that the earlier generations merited to experience miracles, and their generation did not.
He points out that it cannot be because they knew more Torah, as Rav Yehuda’s generation (notably second generation Amoraim) were focused on the part of the Talmud that focusses on damages, and they were focused on all 6 sections of the Talmud.
It also could not be that they understood it better, as Rav Yehuda expressed great difficulty with a certain Mishna while they were able to expand on it with ease.
Yet Rav Yehuda only needed to remove his shoe for rain to come, and their generation could daven all day and nothing happened!
Abaya responded that Rav Yehuda’s generation sacrificed themselves to sanctify Hashem’s name (did risky things in order to preserve the honor of the Torah) and their generation did not.
It seems from here that the superiority of the earlier generations lies NOT in their breadth of knowledge, nor in their greater analytical ability, but rather in their מסירות נפש (self-sacrifice.)
This contrasts greatly with the view expressed by Rabbi Zeira on our daf which seems to put it down to greater analytical ability.
It should also be noted that BOTH of these examples are brought by later Amoraim in reference to earlier ones (whether Rabbi Zeira comparing his generation of scholars to those of Rabbi Yochanan or Abaya comparing his to that of Rav Yehuda.)
Perhaps one answer lies in a radical Rambam (Mamrim 2/1 ) which states that even though when it comes to גזירות made by Chazal, a later Beis Din cannot annul the ruling of an earlier one unless it is greater than them in wisdom and numbers (see Megilla 2a), this does not apply to things that Chazal derives from the Torah itself via the logical rules of interpretation (יג עקרים ).
The Kesef Mishna is extremely bothered by this Rambam, given that we have a rule throughout the Shas that an Amora cannot disagree with a Tanna in anything!
However, a reading of the Rambam’s introduction to the Mishna Torah reveals that he too agrees with this rule, and holds that nobody after the sealing of the Talmud can argue with the ruling of the Talmud either.
This is indeed the answer given by the Kesef Mishna, without reference to the above introduction.
However, his reasoning has nothing to do with the superiority of these different groups of sages in their learning, but rather is explained by the fact that the ruling of the Mishna and later the Gemara were accepted by the entire Jewish people and the leading scholars of the time, and thus had the status of a ruling of the great Sanhedrin.
However, within one period, such as amongst the Tannaim , amongst the Amoraim, or amongst the post-Talmudic sages, there is no such restriction, other than the general rule regarding decrees only being annullable by a greater and more numerous Beis Din.
In case one might argue that such is impossible, as each generation is weaker than the previous one, the Rambam ( Mamrim 2/2) makes it clear that it is certainly possible, even if one cannot get a larger court than that of 71 judges, should there be more Torah scholars who support them.
It is clear from the above that the Rambam has a very limited view of ירידת הדורות and does not subscribe any halachik weight to the statement of Rabbi Zeira on our daf.
It is possible that he views the case in Brachos which attributes the superiority of the earlier generations to their greater מסירות נפש, as the more authoritative of the two, but sees neither case as forbidding disagreement per say with the earlier generations, the only exception being Amoraim disagreeing with Tannaim and post Talmudic authorities disagreeing with Amoraim, for entirely different reasons as mentioned above.
Whether the view of the Rambam is accepted by other authorities and whether this indeed is his view required further study, but in the context of a daf post, this should serve as a basis for opening the discussion.