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

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.

Eruvin 4 “Halacha leMoshe miSinai”

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.