Tag Archives: Maseches Eruvin

Eruvin 37 and 38 Yiftach’s daughter and ברירה

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eruvin 33 and 34 שבות בין השמשות and Eruv Techumim

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Eruvin 33 and 34 שבות בין השמשות and Eruv Techumim

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The list of forbidden things:

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

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

The list of permitted things:

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

The above 3 are all rabbinical requirements.

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

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

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

Eruvin 30-31 The Kohain in the plastic bag and טומאה on a plane

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Much attention was attracted a number of years ago by a photo of a Chareidi man sitting on a plane with a plastic bag wrapped around him.

The man was a kohain and was attempting to avoid the prohibition against Kohanim becoming ritually impure due to contact with a dead body.

The body, however, was not on the plane, a situation which is worthy of its own discussion.

In this case, the concern was that the plotted airpath of the plane passed over a Jewish cemetery close to Ben-Gurion Airport, something which reportedly happens from time to time.

The impurity of a Jewish grave rises above the grave, to infinite heights, and a kohain is thus technically forbidden to “fly” over it, unless he is inside something that serves as a חציצה (barrier) between him and the rising טומאה.

Whereas his action seems extreme and somehow instinctively ridiculous, particularly given the fact that most pious and learned people do not seem to practise such stringency, some discussion is indeed in place.

There are a few reasons why this might not be a valid concern, among them:

  1. Flight paths are never cast in stone and can and do change at anytime (making it a likely case of דבר שאין מתכוין) that is not פסיק רישיה)
  2. In case of doubt regarding טומאה ברשות הרבים (impurity in a public place,) we are lenient. Even though the plane itself is a רשות היחיד, the doubt is based regarding the ground below, which is a רשות הרבים.
  3. The plane itself, being its own “tent” or enclosure could possibly serve as a very effective barrier between the kohain and the rising impurity

The first 2 points are far from simple, but we will focus today on the third:

In order for this point to have any standing, one would first need to show that a plane fits the definition of an ohel (“tent” or enclosure) that acts as a barrier against rising impurity- for example, if the plane itself is made of metal and susceptible to impurity, it might not function as a barrier against it.

Without going into this question (but see Rashi 30b אהל זרוק לאו שמיה אהל ,)it is still far from straightforward, and is tied to the sugya at the bottom of 30b, going onto 31a.

We have established that although the food used for the Eruv needs to be edible and permitted to someone, it does not have to be permitted to the person making or using the Eruv.

For example, a Nazir may rely on an Eruv made with wine, even though he is not allowed to drink it, and a non-kohain may rely on an Eruv made with תרומה, even though he is not permitted to eat it himself.

Further than that, Rabbi Yehuda holds that the Eruv of a kohain may even be placed in a cemetery, somewhere that he is not allowed to go to avoid becoming impure.

The Gemara brings a Beraita that explains that this is because he is able to go there inside a container style cart (see text and Rashi for precise names and definition), which serves as a חציצה (barrier) between him and the graves.

It then links this dispute to a dispute regarding an אוהל זרוק ( a moving “tent” or enclosure.)

Unlike the Tana Kama who holds like Rebbe that such an enclosure does not protect one from impurity outside, Rabbi Yehuda holds like Rabbi Yosi bar Yehuda who is of the view that it does.

This debate seems to relate directly to our case of the plane flying above the cemetery.

The plane seems to be comparable to the enclosed wagon, seeing as it moves, and could thus be a typical case of an אהל זרוק.

That would make our case subject to the dispute between Rabbi Yehuda who is lenient, and the Tana Kama who is stringent.

Should we follow the usual rule of following the majority opinion, as well as the rule that the rulings of Rebbe are accepted over those of his colleagues, things would then not look so good.

The Rishonim also have different views regarding the precise scope of this debate.

Rashi defines a אהל זרוק as an אהל המטלטל , a tent that is moved/movable.

It is still unclear whether this is referring to a “tent” (read:container) that CAN move/be moved, or one that IS actually moving.

The simple flow of our sugya seems to imply that Rabbi Yehuda considers the אהל זרוק to be a valid barrier to the טומאה even while it is moving, otherwise the kohain would not be able to ride through the cemetery inside it. This is how the Rashba understands Rashi here as well, as well as the sugya itself.

However, he also quotes Rabbeinu Chananel who opines that the debate is only regarding a movable “tent” that is currently stationary, but that even Rabbi Yehuda admits that while it is actually moving, it is ineffective as a barrier.

The Rashba considers this later view to be problematic and seems to tend towards the simple meaning in our sugya, but the Ritva seems to adopt it as normative.

Given the fact that the plane is actually moving, some Rishonim would thus invalidate it as a barrier even according to the view that a movable “tent” is a valid barrier.

As such, relying on the plane itself as a barrier is unlikely to be sufficient, and one or more of the other reasons for leniency mentioned earlier in this post might need to be applied. This seems even more clear given that the Rosh explicitly rules like Rebbe due to the rule quoted above.

If all these reasons to be lenient and any others are found wanting, the kohain in the plastic bag have been onto something after all.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eruvin 24-25    The infamous קרפף, and Eruvin in resorts

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We have seen that even though on a biblical level, an area surrounded by halachically acceptable partitions is considered a רשות היחיד , and one is  liable for transferring an object from it to a רשות הרבים, various concerns made Chazal impose other criteria in order to be able to carry with such an area.

In an area greater than a בית סאתיים , the area of the courtyard of the mishkan, which was 5000 square amos, inferior partitions made of only vertical or horizontal components, are not always sufficient.

In order to carry from one adjoining רשות היחיד  to another, an עירוב חצירות  is required, a requirement that forms the main subject of the next chapter.

We also see on our daf that an area that has not been מוקף לדירה (enclosed for the sake of habitation) might also not be considered a רשות היחיד .

Examples of this are enclosures used for growing vegetables. As the purpose of the enclosure is to protect the vegetables and not to mark an area for human habitation, the area has not been מוקף לדירה  and it is not treated with the leniencies of a רשות היחיד .

In addition, if such an area is contained within an area that has been enclosed for habitation and not fenced off, it can also nullify the partitions making it forbidden to carry within the entire area.

This restriction can have a major impact on large holiday resorts, particularly those in nature reserves, whose fences enclose a large area that usually includes many such areas that are not only not  enclosed for habitation but are also not even fit for habitation- these could  include natural bush and/or jungle, large ponds or lakes, and even areas inhabited by wild animals.

Not every such גינה  or קרפף  is subject to this stringency, however.

The Mishna on daf 23a told us that so long as a קרפף is less than our now famous בית סאתיים  measurement (5000 square amos,) one is permitted to carry within it.

Although there is some debate in the Mishna as to what criteria are needed even for such an area to be permitted, the Amoraim on daf 23b rule leniently like Rabbi Akiva that this permission is not dependant on any conditions.

On our daf 24a, Rav Nachman teaches us that a קרפף larger than this which was originally not closed for purposes of habitation may be validated for such purposes with a relatively simple fix:

One makes a gap in the boundaries of more than 10 טפחים, thus invalidating them, and recloses it with the correct purpose in mind.

While this could be a solution in resorts that agree to such an act, it might only work if there are no areas larger than a בית סאתיים  that remain physically unfit for habitation- this requires further discussion but could be a lingering constraint in the way of using the properties boundary fences as valid Eruv partitions.

Another issue commonly encountered is the issue of bodies of water on the properties, such as large ponds or lakes, larger than a בית סאתיים  which are unfit for human habitation, and might even contain crocodiles, hippos, or other dangerous animals.

Our Gemara makes it clear that although a body of fresh water which is fit for drinking  does not invalidate an area that has been enclosed for habitation (as Rashi points out, there is no greater habitation-related need than water!), this does not apply if the water is not fit for its normal use, which Rashi identifies as drinking.

As such bodies of water most often do not contain water that is fit for drinking, even in the absence of dangerous animals that make it their home, they might be problematic, depending on what the halachik definition of “fit for drinking” is and how the particular body of water fits that definition.

Another interesting question is whether there are any solutions for a  קרפף  that is slightly over the 5000 square amos threshhold.

On Daf 25a, the Gemara discusses whether one can reduce its area by partitioning part of it with trees and says that this is not sufficient .

It does allow one to build a platform large and high enough to be its own רשות היחיד  inside that area, thus taking it below the threshold.

Lots more to say and discuss about קרפפים  but it almost Shabbos, so Shabbat Shalom for now!

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 22-23 The sea as an Eruv revisited, Islands, and הוקף לדירה

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In an earlier post, we discussed the debate around whether the sea may be used to close off a מבוי on one side.

On the one hand, the sea is deeper than the minimum 10 טפחים required, and at least at some point, the gradient is also sufficient, and we know from elsewhere (Shabbos 100a) that a pit filled with water is viewed as if it is empty as far as its depth is concerned.

On the other hand, there is a concern that the sea (or river) banks might accumulate שירטון (rocks and sand) to the point that the required gradient is on longer there, exposing an unfenced area between the sea and the מבוי.

We also saw that there is a dispute amongst the Rishonim as to whether we take this concern into account or not.

Today, we discuss a situation where an area is enclosed by the sea on all sides.

In such a case, there might be no concern of שירטון, as the entire area, including any banks or beaches that build up, are enclosed by the sea and thus could make up one large רשות היחיד (private domain.)

On the other hand, there might be additional reason for stringency seeing as the sea is not only being used for an area that is already enclosed by regular partitions on 2 or 3 sides, and thus probably already a רשות היחיד on a biblical level, but in place of partitions on all sides altogether!

The Gemara brings the radical ruling of Rabbi Yochanan that Eretz Yisrael is considered one large רשות היחיד at least on a biblical level (his precise words can better be paraphrased that one does not become liable to biblical punishment for carrying within it)

The Gemara first suggests that this might be because of the mountains and trenches that surround it, but notes that if this was sufficient, one could argue that Bavel (Mesopotamia) should also be one big רשות החיחד, seeing as it is enclosed by the 2 great rivers, the Euphrates and the Tigris.

The Gemara then goes further and argues that if a huge area surrounded by partitions is automatically considered one large רשות היחיד (as implied on Shabbos …) , one can argue that continents are all surrounded by the ocean, making them one large רשות היחיד as well, effectively rendering the biblical melacha of הוצאה null and void!

The truth is that the simple interpretation of Rabbi Yochanan’s statement seems absurd on its own, given that there are so many sources that imply that the melacha of הוצאה certainly applies on a biblical level in Eretz Yisrael, including Rabbi Yochanan’s own view that Yerushalayim would be a רשות הרבים if not for its doors being locked at night.

It is likely that the Gemara simply chose to ask further difficulties to highlight the further absurdity of this interpretation, rather than do so at this earlier stage (yet see Tosfos who deals with this issue.)

The Gemara thus concludes that Rabbi Yochanan is not referring to the whole of Eretz Yisrael, but only to the mountain passes in it.

It follows that there must be some limit regarding either the size or the nature of the area enclosed by partitions in order for it to be considered a רשות היחיד, and that neither Eretz Yisrael nor Bavel falls within whatever this limit is.

It is interesting that the Gemara did not mention the example of an island at all, which one could also have argued should be a רשות היחיד.

It could be that unlike a huge continent, the Gemara does not see this as such an absurd proposal, in which case we would need to find a cut-off point which defines the halachik parameters as to what is considered an island.

It is also possible, that the Gemara simply “went for the throat” as suggested above, choosing more extreme examples to highlight the absurdity of the idea, but an island would also clearly not qualify as a רשות היחיד .

In terms of the maximum size of a רשות הרבים, we have already seen that even a huge area can be closed off by complete partitions (as opposed to inferior partitions which have limitations at least on a rabbinical level) so basing the limit on size is far from straightforward.

Similarly, when it comes to purpose, we see here on daf 23b that large קרפפים are rabbinically disqualified from being considered a רשות היחיד, seeing as they were not closed off for the purpose of “living in,” but on a biblical level, this does not appear to be an issue either, and Rabbi Yochanan rules (Eruvin 67b) that one who throws from a רשות הרבים into such a קרפף is biblically liable- this forms the basis for the related sugya on our dapim (Eruvin 23b) as well.

The Rashba raises this issue and leaves it unresolved.

On the other hand, the Tosfos on our daf suggests that there is a difference between a partition made by people, which at least on a biblical level can enclose an area of any size, and a natural barrier, such as mountains or the sea, which is more limited even on a biblical level. The Meiri, though a little cryptic, seems to say a similar thing, differentiating between walls and “mountains and seas”

They too however, do not appear to define precisely what this limitation is- perhaps the main criteria would be whether the enclosed area is all ראוי לדירה (fit for human habitation,) which might exclude any islands which contain uninhabitable jungle, bush, desert or the like, but this needs further study.

The Ritva takes an entirely different approach, and quoting his Rebbe (probably Ramban,) claims that for any area to be considered a רשות הרבים even on a biblical level, one needs to רואה עצמו בתוך המחיצות (literally – see oneself inside the partitions.)

This phrase requires understanding, but the simple explanation seems to be that so long as one is able to see that he is inside a partitioned off area, (possibly even from a high vantage point, which could be possible even on very large properties) it is considered a רשות היחיד – if not, then it remains a רשות הרבים. (In truth, the Ritva points to his explanation of the sugya in sukkah 4b in the name of the Ramban which at face value does not appear to me to fit with this understanding, nor with the flow of the sugya here, but that’s for a more detailed study.)

This leaves open the possibility that according to this view, smaller islands would indeed be a רשות היחיד, at least on a biblical level, but means that larger properties without any line of site to the boundaries might not qualify, even if surrounded by man-made partitions!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Perhaps, however, this assumption is not fully necessary?

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

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

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

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

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

Eruvin 18-19 The Stalker ,making women feel safe , and wasted semen

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Until recently, the atmosphere in the Western world has made it extremely difficult to teach certain areas of Torah which appear to be unnecessarily stringent in an open society where members of the opposite sex mingle and interact completely freely.

Although modern society is certainly not alone in terms of its hedonistic excesses, for much of history, in most moral societies, it was understood and accepted that human nature is such that certain strict lines need to be drawn to avoid total moral breakdown.

For decades, since the cultural revolutions of the 60’s, Western society has lived in a state of ethical dissonance- On the one hand, the feminist movement has fought for equality for woman and the lines between the genders have been slowly blurred, yet in practise, girls and woman have been treated as badly or worse than any time in history, with “liberal” Hollywood turning woman into nothing other than sex symbols, and the most “respectable” of institutions turning a blind eye to rape, child abuse, and just about every outrage imaginable.

Many a young actress or businesswoman has literally had to sleep her way up the ladders of fame, and the rich, powerful and famous have carried out the worst abuses with virtual impunity.

A pornography industry has flourished that treats people like absolute garbage, taking advantage of the desperation of so many young people to sell them as commodities to serve people’s over-indulged libidos.

It is now, in recent years, with the advent of the much to talk about “me too” movement, that Western society is starting to come to terms with at least some of its excesses, and realize something that the Torah has always taught: true liberty is not the ability to give in to whatever selfish urges come your way, but rather the ability to control those urges and use them in a way that doesn’t harm the weak and the vulnerable but rather brings good to the world.

Reading these two daf, it is absolutely impossible not to think of the horrific events of the past week here in our beloved Israel, where in a scene reminiscent of the biblical פלגש בגבעה (concubine of Giv’ah who was gang-raped and murdered) a gang of teenagers and young adults reportedly stood in line outside a hotel room in Eilat waiting their turn to rape a drunk 16 year old girl.

In contrast to the biblical story which ended in a tragic civil war between the tribe of Binyamin who refused to stand up to those responsible, and the other tribes who demanded justice, the condemnation across our society and demand for change has been unanimous- whether anything will actually be done in practise is something only time will tell.

Yet despite people’s shock, how many of us have internalized the fact that such occurrences are a likely direct result of decades of subtle and not so subtle sexualization of woman and children in the media and on the streets?

The fact that it took an event like this for the city of Tel Aviv to finally remove an outrageous mural painted on a beach change-room of some “macho guys” peaking into the girls change-room, speaks volumes of where society has been.

The bastion of so-called liberalism has been absolutely ok with such a disgraceful “piece of art” which is only one of many such pieces of junk being produced by our subculture.

On our daf, the view is expressed that the first man and woman were created as one entity, with a male face on one side, and a female face on the other.

The Gemara asks which side was on front, and answers that the male side was probably in front.

This is because we have learnt in a Beraisa that a man should never walk behind a woman, even his own wife, and if he meets a woman on a single-file bridge, he should ask her to move to the side so that he can pass her.

The same Beraisa concludes that anyone who follows a woman in a river has no share in the world to come.

The question one immediately needs to ask is what exactly is so terrible about walking behind a woman.

The modern person’s first reaction might be to get defensive and say that this is an example of old-fashioned chauvinism that has no place in modern society- after all, were we not always taught as kids that “ladies go first?”

Indeed, a first glimpse at Rashi on the first statement of the Beraisa, who says that it is גנאי לו, loosely translated as “degrading for him,” might strengthen this claim, if we take it to mean that it is beneath the honor of a man to be behind a woman

Another important think to note is the difference between the first parts and last parts of the Beraisa- the former instruction not to walk behind a woman applies even to one’s own wife, but does not get the forceful condemnation of the later.

The later statement discusses following a woman in a river, does not mention one’s own wife, but issues a far more severe condemnation.

A look at Rashi’s comments on this later statement shows that he understands this to be referring only to another man’s wife, a view that seems to be accepted by the consensus of the Rishonim. He explains that the concern here is that she removes her clothes while washing or bathing in the river.

However, even an adulterer has a share in the world to come, so why would someone who follows someone else’s naked wife into a river forfeit this share?

As one continues down the daf, one sees that the suggestion that our Gemara makes light of woman is completely incorrect.

The Gemara labels Manoach, father of Shimshon, as an עם הארץ ignorant person(, for following his wife, when he should have gone first, but then counters this claim by pointing out that the prophets Elkana (father of Shmuel) and Elisha also “went after their wives.”

The Gemara notably seems to take for granted that a prophet cannot possible be an עם הארץ (c.f. 12a B.B. וחכם עדיף מנביא ” אבל אכמ”ל”) and concludes that they did not literally walk behind their wives which would be wrong, but rather went after their wives’ words and advice.

Given that Chazal were at the least ok, and possibly full of praise, for one who follows the advice of his righteous wife, something we have already seen both in the Torah , where Hashem tells Avraham to do whatever his wife says )(Beraishis 21/14) , and in Midrash (think, for example און בן פלת who was saved by his wife’s advice not to follow Korach -Sanhedrin 109b,) it is impossible to make the superficial claim that they denigrated woman. (There are admittedly some other statements of Chazal that might seem at face-value to do so, but this is not one of them.)

It is far more likely that this has more to do with the well-known concept of כל כבודה דבת מלך פנימה – the honor of a princess is all inside )Tehillim 45/14.)

When it comes to giving advice, woman might be considered more intuitive than men, in many ways the “brains” behind everything.

One does not send one’s most precious resources at the front of the battle as a pawn, one looks after them carefully.

For a man to walk behind his wife, making her walk ahead into the unknown dangers ahead on the road, might be degrading, not because she should be treating him with more respect, but on the contrary, because he should treat her with more consideration, paving the way for her.

It is thus precise that when it comes to walking behind one’s wife, the Beraisa specifically mentions -“בדרך” “on the road.”

It is possible that such considerations would not apply to opening the car-door for one’s wife before entering oneself, where in general no such concern for her safety should apply.

When it comes to another woman, and even more so another man’s wife, the consideration is completely different.

Here the concern could be both that one might make her feel uncomfortable and arouse himself unnecessarily, and at worst, come to rape her, chas veshalom.

This form of premeditated stalking might be even worse than a consensual affair, and in the case of someone’s else’s wife, combined with the additional severe of adultery, results in one’s losing one’s portion in the world to come, assuming this statement is to be taken literally.

For decades, the price of feminism has been that women have to ignore their natural female sense of vulnerability and just accept the fact that the nature of men has not and will not change, and that the guy behind them might just be that stalker she has always had nightmares above.

Hopefully, the balance will be restored to the point where women are revered, cherished and respected , but allowed to feel safe, without men harassing them constantly, the way the Torah has taught us.

The Gemara brings the words of Rabbi Yirmiya ben Elazar who tells us that after the sin of אדם הראשון (the first man) , he was “excommunicated” by Hashem for 130 years, and during this time, he gave birth to “רוחין, שידין, וליליו ” , understood by Rashi as various types of מזיקין (harmful entities, whatever that means…)

The Gemara questions how this was possible, given that Rabbi Meir has already taught us that he was a חסיד גדול (a pious person) who when seeing that he had been sentenced to death, fasted and separated from his wife from 130 years.

If he had separated from his wife, how could he have given birth to these “harmful entities.”

It answers that the entities were created from the wasted semen that he spilled unintentionally during this time.

This seemingly bizarre statement raises many questions that I have no time to analyze today, but which we will hopefully address in future posts:

  1. What exactly were these מזיקין that he gave birth to?
  2. Was this a natural process of some kind or was it supernatural?

If it was natural, how can it be explained naturally? If it was supernatural, then why was the Gemara bothered by the fact that he had separated from his wife, given that the process was supernatural anyway?

  1. Is the assumption that given his pious nature, he could not have intentionally spilled seed during this time, so the only possible option is that the מזיקין came from unintentional spill (מקרה לילה)? If so, how do we understand that someone who was now even more flawed than before the sin was able to withstand this strong temptation in the absence of his wife for so long? Furthermore, assuming he had reached such a supreme level of control that he was able to avoid intentionally spilling his seed at all during this time, what more could be expected of him? Why should harmful entities be the result of what would have arguably been essentially the greatest long-lasting act of self- control in history?

It is known that Chazal (see Niddah 13b) had very strong things to say about “המוציא שפחת זרע לבטלה” – (spilling seed in vain ;obviously the definition of לבטלה needs careful study), comparing it (probably metaphorically) to idol-worship, murder, and adultery.

It does not say such things about unintentional spill, and though a man who experiences such an emission becomes impure ,and one is also not supposed to intentionally have impure thoughts that might cause this to happen, it seems obvious that something beyond someone’s control should not be condemned in any way.

It seems more likely that the “מזיקין” were not a punishment in any way for unintentional spillage, but rather a result of his original sin itself, and the unintentional spillage was merely the means that they came about through.

However harsh Chazal seem to be in their condemnation of intentional wasting of seed, the Shulchan Aruch (E.H. 23/1) claims that this is the most severe sin in the Torah

Though this claim is very difficult for multiple reasons, and many other authorities (see B.S and C.M there for example, quoting Sefer Chasidim) have either disputed this ruling or clarified that it is not to be understood literally, the Zohar (p arshasVayechi 219b) seems to have gone further and claim that this is the only sin for which one cannot repent and whose perpetrator cannot “see” the face of Hashem’s shechina( whatever that means.)

This shocking statement was used by non-other than one of the leading Torah scholars of his time, Rav Yaakov Emden (mitpachas Seforim 1/on Vayechi) as one of multiple “proofs” for his controversial claim that parts of the Zohar contradict the Talmud and cannot possibly be authored by Rabbi Shimon bar Yochai!

His points out that Chazal taught us that nothing stands in the way of teshuva and always went out of their way to encourage teshuva. It is also not even listed in the more serious categories of sins which are subject to Kareit or death in court and require more than just repentance and Yom-Kippur to atone for.

Though I am certainly not qualified to get into this debate, which seems to hinge partly on how literally such statements in a very non-literal work are meant to be taken, and which is only the domain of experts in both the Talmud and the Zohar, there certainly seems to be one such proof from Daf 19 here in Eruvin that one can certainly do Teshuva for this sin.

The Gemara (I am admittedly merging a number of statements that the Gemara see as inter-dependant for the sake of brevity) relates how the sinners amongst the Jewish people all do Teshuva at some stage, and are “pulled out” of Gehinom by Avraham Avinu himself.

One exception given is a yisroel who has relations with an idol worshiper – Rashi’s clarifies that (probably to to impress her), he covers up his circumcision and Avraham can thus not recognize him.

Whatever the symbolism behind this exception is (which in no way means that a person cannot repent in his lifetime for such a deed,) it is clear that one who spills his seed is certainly not excluded even from this last-minute repentance and “rescue” operation, how much more so one who has made the effort to fully repent in his lifetime.

As mentioned above, only people well-versed in both the Talmud and Zohar might be qualified to comment on the claims of Rav Yaakov Emden, but assuming the Zohar was never intended to be taken literally in the first place, this would not an issue either way.

Eruvin 17 The army and spiritual challenges

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We have pointed out various times during our posts how everything in Torah is related, and that very often that relationship stands out so clearly that one is absolutely awestruck.

The direct connection between our daf and this weeks parsha is certainly one such example.

The parsha opens with the highly unusual law of אשת יפת תואר, the beautiful captive girl taken in war.

In an unprecedented ruling, the Torah permits the soldier who falls for an enemy captive to begin a process whereby he will be able to marry her and even gives him permission to sleep with her once before this process begins, in order to satisfy that lust.

The explanation for this most unusual capitulation to human sexual desire on the part of the Torah is that לא דברה תורה אלא כנגד יצר הרע – “The Torah only spoke against the evil inclination. “

In the heat of war, the Torah understood that if a soldier was not permitted any outlet for his desires, he would carry them out anyway, and thus came up with a permitted way that allowed him to do so if necessary, while never encouraging it.

There is much to discuss about this idea, and the first question that jumps to mind is why is this extreme lust treated any differently to other extreme situations of lust?

The Torah always insists that people have free will and are responsible for their actions, no matter what the temptations, yet here, suddenly it acts completely differently.

Is the lust of a soldier at war really so much stronger than a man whose wife is a Niddah, a homosexual man who has no permitted outlet for his passions, or a single man who isn’t even permitted to masturbate to satisfy his urges, let alone carry on a sexual relationship with someone outside marriage?

Even if we argue that this is a question of פקוח נפש, given the emotional pressures that a soldier is under, we have found that a person is not permitted to practise forbidden sexual relations even to save his life (Sanhedrin 74a,) one of three great transgressions which one may not even transgress with a gun to one’s head.

In the case where the danger to his life comes from his emotional state caused by his desires, this could apply even to a non-married Jewish woman!

We see this from the case (Sanhedrin 75a) where a certain man fell so badly for a woman that he became desperately ill from desire.

The doctors opined that he would never heal unless he got to sleep with her.

The Rabbis ruled that it is better to let him die than to allow him to sleep with her, or even “talk with her from behind the fence.”

Clearly, the fact that a person gets himself into an emotional state that endangers his life does not justify illegitimate sexual behaviour.

It might be possible to distinguish between the two cases in a few ways, among them:

  1. The reason given by the Gemara why such a harsh ruling was given even in the case of un unmarried Jewish girl (who was not even a Niddah) was either because of פגם משפחה (damage done to the girl and her family) or שלא יהו בנות ישראל פרוצות בעריות (so the daughters of Israel would not be engaged in sexual immorality. )

The former reason focusses on the individual girl and her family whereas the later focusses on societal needs – The good of society takes precedence than the good of this individual, as we need to uphold a moral society at all times.

The case in our parsha is different given that the girl is an enemy captive, and neither of those two concerns apply, at least on a technical legal level.

The fact that the soldier is away from society also lessens the impact on society.

  1. In the case mentioned in Sanhedrin, the threat to the person’s life came from his lust itself. We cannot allow our girls to become the “medicine” for every person who is unable to control himself. In the case of the solder, the danger is from the war, the lust simply increases that danger, and the permission given by the Torah simply removes that extra danger allowing him to focus on the prime directive of survival and most important, victory for the nation as a whole.

Despite the above, given the extreme stringency with which the Torah usually treats these matters, there is little doubt that the situation of war should be treated as the exception rather than the rule, and however we try our best to understand it, it is likely that it cannot be applied to any other situations and אין בו אלא חדושו .

On our daf, we see that this is not the only allowance made for people at war.

Our Mishna tells us that there are 4 areas in which Chazal were lenient went it comes to soldiers in an army camp:

  1. They may collect wood from anywhere, even if it does not belong to them.
  2. They are exempt from washing hands before eating bread.
  3. They are permitted to eat דמאי (produce bought from an ignorant person who might not have taken tithes.
  4. They are exempt from putting aside an ערוב חצירות (though they still need basic מחיצות in order to carry within a designated area.

With the exception of the first which involves the biblical prohibition of stealing (probably permitted through the rule of הפקר בית דין הפקר,) these are all rabbinical laws that are waived, but the facts that such allowances were made also makes it clear how much of a need Chazal saw to allow soldiers to focus on the sacred task at hand of achieving victory without having to allocate too much energy to other things that were not practical at the time.

In an even larger concession, the Gemara (Chullin 17a) says that during the wars to conquer the land, the soldiers were permitted to eat forbidden foods if they are hungry, even pig!

What all these things have in common is that the Torah and Chazal have waived certain very important halachik requirements in order to allow soldier to focus on the battle and not use all their energies battling hunger, the evil inclination, or circumstance.

In the context of all of these things, it seems that the although the Torah only spoke against the evil inclination in the case of the captive girl, this is not because the Torah allows people to sin “legally” in order that they not come to sin “illegally,” but because of the unusual situation soldiers face in war where survival and victory has to be their only goal and the Torah therefore chooses not to make them spend their energy fighting their evil inclination in almost certain losing battles.

One of the major objections raised by many in the Torah world against religious youth going to the Israel army involves the spiritual dangers that they face there, given that much of the army is irreligious.

One of the strongest arguments against this comes from the many extreme allowances that the Torah itself makes for those at war, to the point of permitting some very serious transgressions- what it does not do is in any way discourage soldiers from going to fight, whether the war is obligatory or voluntary in nature.

If this is the case in situations where religious life is not possible, how much more so, we could argue, should it be in a Jewish army where so many allowances are made for religious soldiers, such as kosher food, Shabbos observance, and even time to pray and study.

On the other hand, one could counter that there is a difference between leaving one’s own camp to go into battle or to enemy territory, where the religious threat is from the outside, and being in a Jewish camp where the religious temptations come from the inside, from one’s own side.

The former is more likely to be a temporary setback, whereas the chance of long-term assimilation into secular society poised by being part of an irreligious unit is on a completely different level.

One can argue back and forth on this issue, but one thing that we see for sure on our daf is that certain leniencies were applied by Chazal even INSIDE our own camp.

The army certainly does not seem like a place for imposing extra stringencies above the basic requirements of the law, and even certain laws themselves, namely the 4 mentioned in our Mishna, are pushed aside even while in the מחנה itself.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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