Pesachim 50-51 When is a minhag binding?

In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l, whose love of Torah, passion for justice, and acts of kindness inspire everything I do.

Much of modern Jewish practise involves extra-halachik customs which have developed between the time of the Gemara and now, and a thorough analysis of the scope and authority of such “minhagim” is required.

Whereas the authority of rabbinic law is based on biblical law, the authority of customs taken on by an individual, family, or community seemingly lack this  strong grounding, and needs to be sourced and defined.

In the opening Mishna of chapter 4, we see that at least certain types of minhagim are grounded in rabbinic law.

The Mishna takes for granted the prohibition of performing work after midday on Pesach eve (a discussion in its own right) and discusses the custom followed in some places to forbid it even before midday, ruling that each place needs to follow its own minhag in this regard.

It then addresses an individual who comes from a place with one custom, who is currently in a place with a different custom.

Here, the ruling is that a person must keep the stringencies of  his place of origin as well as those of the place he is currently in.

That means that such a person will need to avoid work on erev pesach either way, either because that is the custom of the place which he came from, or because it is the custom of the place where he currently is- both customs are binding on him.

The Mishna then adds that one should never act differently to the מנהג המקום  (the custom of the place where one is ) because of מחלוקת  (conflict.)

An initial analysis of this case in the  Mishna reveals that

  1. No mention is made as to whether the relocation is temporary, as in a visit, or permanent.
  2. There seems to be an inherent contradiction between the need to keep the stringencies of both places, and the need not to act contrary to the customs of the place one is in. For example, if a person comes from a place where work is not done the whole day  to a place where it is done before midday:
  3. The first rule implies that one must refrain from work in deference to his own custom
  4. The second rule implies that one should not refrain from work in order not to “stick out.”
  5. The case in the Mishna refers to a stringency practiced in a certain place. In cases where an actual rabbinic prohibition applies in one place and not in another, or where one place follows a different opinion regarding the עיקר הדין  (actual law) that the other, it is not clear yet whether the same principles apply.

When one examines the סיפא (last case) of the Mishna, one sees that this principle applies to a related though possibly different situation too.

This case revolves around the prohibition of eating produce of the שמיטה (sabbatical year) after that species is no longer available in the fields, before performing a procedure called בעור  (removal.)

The Mishna rules that if one takes such produce from a place where it is no longer available in the fields to a place where it is still available or vice versa, he must be stringent and perform בעור, in deference to either the practise in the place from whence he came or to the practise in his current location.

In this case, it is not simply a question of one locale taking on a certain stringency and not the other.

Here, the עיקר הדין  requires those in the one locale to perform בעור  on that specific species, whereas there is absolutely no reason for those in the other locale to do so yet.

One can also note that if the produce comes from a place where בעור is already required, the obligation might have already fallen on the produce ( in Brisker terms חיוב הבעור כבר חל על החפצא.)

Yet despite these essential distinctions, the same principle seems to apply, something we will hopefully return to in later posts.

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At the bottom of Daf 50, the Gemara discusses a different custom.

The people of ביישן  had the custom to avoid sailing from the port of צור  to the port of צידון  on erev shabbos, despite their proximity and the commercial need  for them to be there for the market day in צידון.

This was clearly an extra stringency not required by law, and Rashi explains that this was to avoid neglecting their shabbos preparations.

The next generation approached Rabbi Yochanan asking him to let them off this stringency, seeing as unlike their fathers, they were unable to cope with it.

He answered that their fathers had already accepted this stringency, and it was binding upon them, based on the verse “שמע בני מסור אביך ואל תיטוש תורת אימך”    (Mishlei 11- “Hear my son the “Mussar” of your father and do not forsake the Torah of your mother.”)

Unlike the case in the Mishna, which deals with מנהג המקום  (the customs of the place,) this case seems to be an example of מנהג המשפחה (a family custom.)

Despite the above, it is not immediately clear whether this ruling applies only while they continued to live in ביישן, or whether they would still be bound by it even after moving to a different place with no such stringency.

The Gemara moves on to discuss a different custom, this time a stringency of the people of חוזאי, who used to separate חלה  from rice.

When Rav Yosef was told about this, he ruled that a זר  (non kohain( should deliberately eat it in front of them (to make the point that חלה  taken from rice is NOT חלה!)

We are immediately faced with the question why this is different to any other מנהג המקום  (local custom) which needs to be respected, as in the previous cases we have discussed.

Abaya questions Rav Yosef’s ruling based not on our Mishna or the case with Rabbi Yochanan, but on a related halachik principle.

This is the rule of “דברים המותרים ואחרים נהגו בהן אסור אי אתה רשאי להתירן בפניהם”  – permitted things that others have forbidden to themselves may not be permitted by you in front of them.

As such, how could Rav Yosef permit a non-kohain to eat what the people of this town treated as חלה  in front of them?

Rav Yosef responded that Rav Chisda had already ruled that the above principle only applied to כותאי  (Samaritans,)  who already made light of rabbinic law and who might be led to further leniency by such actions, to which Abaya retorted that these people were like כותאי  – Rashi explains that this was due to their ignorance.

Due to the above, Rav Ashi qualifies  Rav Yosef’s ruling to only apply to a place where most of the people eat grain products.

In such a case, the concern that allowing a non-kohain to eat the rice “חלה”  In front of them would cause them to practise further unjustified leniency is mitigated by the risk that they would land up using rice as חלה  for grain, a very serious action which would result in them eating טבל.

As such, this was a stringency that could lead to sin, and needed to be crushed!

However, in a place where most people ate rice and there was no such concern, one should not undermine their stringency, as it had the benefit of helping them remember the laws of challah!

At first glance, this seems to be a typical example of stringency not required by law.  However, it is also possible that their “minhag” was to follow the halachik opinion of רבי יוחנן בן נורי  who considered rice to be a form of grain (Pesachim 35a), which would make this an example of a custom to follow an already existing stringent halachic opinion, not just a new practise without halachic precedent.

The Gemara proceeds to bring 3 other examples of minhagim where the rule of דברים המותרים…  applies, pointing out that all 3 cases involved בני מדינת הים  (“overseas” people) who due to their lack of proximity to Torah centers, were also ignorant and treated like כותאי  regarding this law.

It seems clear that whereas no distinction is made between ignorant and learned people in the case of our Mishna and that of בני ביישן, the rule of דברים המותרין  is limited to ignorant people, suggesting that two or more very different principles regarding the source and  authority of minhagim are at play here, despite the relationship between them implied by their proximity in the sugya.

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The Gemara near the bottom of daf 51a brings yet another example of different customs.

This case revolves around דייתרא , a kind of fat that was treated as permitted in the land of Israel but not in Bavel.

It relates how רבה בר בר חנה  came from Israel to Bavel and continued to eat this fat, in accordance with the custom of Israel.

When רב עוירה סבא  and רבה בריה דרב הונא  came in, he quickly covered it up, so that they should not see him eating it.

Abaya, understanding that this was due to the rule of דברים המותרים … commented to them that רבה בר בר חנה  was obviously treating them like כותאי, further proof that this rule only applies to  ignorant people, but also very telling us what standards Abaya believed רבה בר בר חנה  applied to the definition of “ignorant” in this regard !

At this point, the Gemara finally relates to the principle of our Mishna and asks how רבה בר בר חנה could ignore the מנהג המקום and eat the דייתרא  even while he was by himself.

Whereas the rule of דברים המותרים… only applies לפניהם  (in front of those who are stringent,) it seems that the Gemara holds that the rule of the Mishna, namely following the stringencies of both places, applies in private as well.

Whereas Abaya answers differently, Rav Ashi answers that רבה בר בר חנה  intended to return to Israel, and in the absence of the concern of דברים המותרים…, the stringencies of Bavel were not yet binding on him!

With this distinction, Rav Ashi shows how he has interpreted the rule of “being bound by the stringencies of the place one has come to” as only applying to one who has relocated permanently.

Until one has permanently relocated, one is not personally bound by the stringencies of the place one is merely visiting, but simply needs to be careful not to “permit them” in front of the locals, if they are ignorant.

It is not immediately clear what the law would be where a person from a stringent locale permanently relocates to a lenient locale .

Would Rav Ashi go so far as to extend the rule that one goes by one’s permanent place of residence even to the leniencies of one’s new place, or would he require one to keep the stringencies of one’s previous abode even after permanently resettling?

The key to this and other unresolved issues that we have raised can be found in other sugyas on the subject, and will hopefully be discussed in our next post, in relation to second day Yom-Tov.

To sum up what we have seen so far, there are various  principles on which the authority of minhagim are based:

  1. מנהג המקום  (the local minhag) binds all inhabitants (the Mishna.)
  2. One who relocates is bound by the stringencies of his old place and of his current place (the Mishna) but this rule might depend on the nature of one’s relocation (as per Rav Ashi)
  3. One should not act contrary to local practise מפני המחלוקת  (the Mishna)
  4. A family minhag can be binding, based on the passuk in Mishlei. (the case of בני ביישן )
  5. Even where one is not bound by local stringency, one should not be lenient in front of the locals, if they are ignorant, due to the rule of דברים המותרים  .

The scope, authority, and interaction between these principles has been partly discussed already, and will hopefully continue in the next post, but it is clear that before one is able to define clear rules regarding the types of minhagim that are binding and under what circumstances they are binding, a thorough understanding of the above and any related sugyas needs to be obtained.

Not every custom is binding under all or any  circumstances, but the concept of certain customs being binding is well grounded in numerous Talmudic principles.

Eruvin 101-102 bolting the door, minhag, and the new Rav in town

In our earlier post on Eruvin 74-75, we discussed the situation where a community had received a lenient ruling which it followed and was later given a more stringent ruling by a new authority.

We noted the ruling of the Rema that a new Rav may indeed repeal the lenient ruling of a previous Rav, and that this might also apply to repealing an earlier stringent ruling.

The later might be more problematic, given the general rule (Pesachim 51a ) that דברים המותרים ואחרים נהגו בהם אסור אי אתה רשאי להתירן לפניהם  – things that are permitted but others were accustomed to forbid, one is not permitted to permit in front of them.

If this is the case for a stringency that a community took on by itself, how much more so should it be the case for something which they took on because of a ruling from their previous Rav!

In our Misha at the bottom of Eruvin 101, there is an explicit reference to a similar situation where Rabbis repealed existing lenient or stringent practices, though it is not clear whether the original practise was based on an earlier ruling of a Torah scholar, or simply developed over time.

The mishna continues to discuss actions that might resemble the מלאכה  of building on shabbos, including inserting a bolt whose one head is large enough to use to pound food (and thus considered a useful vessel already ) into a door in order to lock it (I have followed Rashi’s explanation here for the sake of brevity but this is a complex discussion in the Rishonim in its own right.)

The  Gemara later makes clear that if the bolt is already permanently connected to the door and is easily moved without the rope breaking (see Rashi and other Rishonim who give different explanations) even Rabbi Eliezer permits locking the door with it, as doing so no longer resembles building.

In contrast, if it was already connected to the door, but cannot be moved without the rope breaking (once again following Rashi’s explanation) , Rabbi Eliezer forbids doing so, seeing as it is not properly connected already, whereas Rabbi Yossi permits, seeing as it already has the features of a useful כלי and doing so does not resemble building.

The Ritva explains that this is because a person does not usually permanently set aside a useful כלי  as a bolt and it is clear to all that this is only a temporary fix and not an act of building .

Fascinatingly, both Rabbi Eliezer and Rabbi Yossi bring support for their view from an incident in the shul in Teverya.

Rabbi Eliezer reported that the original custom in that shul was to lock the door with such a bolt, and when Rabban Gamliel and the elders came, they forbade it.

In contrast, Rabbi Yossi accounts that the original custom had been not to do so, and that when Rabban Gamliel and the elders came, they permitted it!

Although they do not appear bothered at all by the fact that according to Rabbi Eliezer, Rabban Gamliel and the elders forbade something against the existing custom to permit it, Tosfos are bothered by how according to Rabbi Yossi, they permitted something against the existing custom to forbid it.

This is because , as mentioned above, we have learnt (Pesachim 51a) that if something is permitted but others have treated it as forbidden, it is forbidden to permit it in front of them.

Seeing as the member of that shul were long accustomed to prohibiting this, how could Rabban Gamliel and the elders come and permit it?

Their answer could have  far-reaching ramifications for the authority of minhagim in general, and we shall hopefully get the chance soon again in Pesachim to discuss this issue in more detail.

For our purposes, we shall note that Tosfos distinguishes between a custom which people took on because they mistakenly believed something was actually forbidden, and a custom which people took on as an extra chumra despite knowing that it was actually permitted.

In the former case, their minhag was taken on due to error, and one may certainly permit it to them.

In the later case, no error was involved, and one may not later permit it.

Tosfos understands that according to Rabbi Yosi, the members of the shul refrained from locking the door with such a bolt because they mistakenly believed it was forbidden, and Rabban Gamliel and the elders were well within their rights to correct their error and permit it!

What is still unclear is what the reason was for their initial error? Was it simply ignorance on their part, or was it because another Rabbi had mistakenly (at least in the view of the later Rabbi) told them that it was forbidden (as Rabbi Eliezer indeed held?)

If the later is true, it would solve our original problem of how a new Rabbi can permit something forbidden by the previous Rabbi if in his view, the previous Rabbi was wrong.

It is also possible, however, that seeing as the community was doing the right thing by following their Rabbi at the time, their stringent practise cannot be seen as an error, and in such a case, the new Rabbi may not permit it.

The role of rabbinic authority in the acceptance of minhagim is itself worthy of much discussion, and as mentioned, I hope to continue this when we reach the relevant sugya in Pesachim, Hashem willing!

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 74 The new Rav in town

One of the biggest causes of tension between a new Rav and his community almost invariably involves differences between his minhagim(customs) and the existing practise of the community.

Even the smallest of minhagim such as whether to say “shir shel yom” before or after the leining on shabbos can become a source of major friction and it takes a very mature Rav and community to learn how to fit in with one another for the sake of the new relationship.

However toxic such arguments can become, they pale in relation to conflicts regarding matters of actual halacha, where the previous Rav permitted something and the new Rav decides to forbid it, or (though less common perhaps) vice versa.

The role of מנהג המקום  (the established custom of the place) is very prevalent in halacha (see Mishna Pesachim 4/1 and the related Gemara for perhaps the most important primary source on the subject,) yet so is the authority of the מרה דאתרה (the Rav of the place), and the requirement to listen to the שופטים אשר יהיו בימים ההם (the judge at the current time [Devarim 19/17  ])

As usual, a comprehensive study of all related primary sources is necessary to reach any conclusions on the subject, something which is beyond both the scope of a daf post and my own personal scope.

However, in keeping with our model of “book-marking” relevant sources as we move through the daf cycle, I believe it is worth noting that there seems to be a very strong ראיה (proof) from the current daf regarding the authority of a new Rabbi, at least when it comes to imposing his stringent views on the community.

At the bottom of Eruvin 74b, the opinion of Rav is noted that in order for a מבוי to be treated with the leniencies of a מבוי (as opposed to a חצר,) there need to be courtyards and houses that open to it, understood to mean at least 2 courtyards with 2 houses each.

If it meets that rule, does not exceed the maximum width of 10 amos allowed for a מבוי, and has a width that is less than its length, the fourth open side along the width may be closed with a pole or beam, as discussed at the beginning of the chapter.

Otherwise, the fourth side needs to more substantially closed, as we have also seen earlier.

This rule of Rav is not universally accepted by any means, and various top Amoraim, including Shmuel and even Rabbi Yochanan, are more lenient.

For our purposes, we shall focus on Shmuel’s view, which holds that even one courtyard and one house is sufficient.

The Gemara relates that רב ברונא  was saying over Shmuel’s lenient view  and Rabbi Elazar of Rav’s school of learning queried whether Shmuel could really have held that way.

When רב ברונא  replied in the affirmative, Rabbi Elazar asked him to show him where Shmuel was staying, so that he could confront him over this.

When he met him, and Shmuel confirmed that he had indeed ruled this way, he asked Shmuel how he could possibly hold this way, seeing as he  had also said that regarding Eruvin, we only follow the principle    that a מבוי לחצרות כחחצר לבתים (An alley is to courtyards what a courtyard is to houses,) in other words, just like a courtyard opens to more than one house, so also מבוי must open to more than one courtyard.

Shmuel was silent at this point, and the story ends.

The Gemara wishes to know whether Shmuel retracted his lenient ruling based on the above argument or not- (silence is sometimes take as admission, but also sometimes taken as simply ignoring the argument due to its lack of weight)

In order to answer this question, the Gemara brings another story:

There was a certain מבוי in which a single person(or family)  איבות בר איהי lived- in other words, aמבוי  which serves just his courtyard.

He marked the open side with one post, as per the laws of a מבוי, and Shmuel consented to what he had done, in keeping with his view that one courtyard is sufficient.

Rav Anan then came and took the pole down, demonstratively forbidding what had been done.

The owner expressed his surprise as to how Rav Anan could simply come and invalidate the מבוי  which he had been relying on all this time with the support of Mar Shmuel himself (note the stress of the title “Mar”- a title denoting seniority.)

The story ends there and although Rav Anan does not seem to have answered the owner, it appears that his pleas were in vain and that Rav Anan’s stringent ruling was now accepted.

Yet the Gemara deduces from this that Shmuel never retracted his leniency and stuck to his leniency till the end.

The later deduction is not accepted for another reason we shall explore later, but we shall focus  first on the story as stated and its relevance to our discussion.

Firstly, let us attempt to clarify the facts.

Whereas we know that Shmuel had given permission to איבות בר איהי to mark his “private” מבוי  and Rav Anan later came and removed it, it is not clear from the Gemara

  1. Whether Shmuel was the Rav of that particular town initially and later replaced by Rav Anan, or simply a visitor whose ruling was accepted due to his great stature and later rejected due to another great visitor’s counter-ruling.
  2. Whether Shmuel had died when Rav Anan gave his new ruling, or whether he had simply left his position in the town or had gone back home.

At least from Rashi, it is evident that Shmuel had died before Rav Anan “overruled” him.

Why Rashi makes this “assumption” does not seem clear from the actual narrative, but could be based on סברא (logic) ,normative halacha, or simple historical fact

Given that Shmuel was the leading Amora of his time, together with Rav, it does not seem likely that Rav Anan would be able to rescind his ruling as long as he was still alive, and he might not even have been halachically permitted to do so.

This would be even less likely if this מבוי was in Shmuel’s territory of נהרדעא, where he was in charge until he died, and even less so given that Rav Anan appears to have been a student of Shmuel (see for example Eruvin 95a where he quotes things that he learnt from him.)

Although we have not eliminated the possibility that Shmuel could have been a “visiting Gadol,” it seems more probably that his view was accepted against Rav’s stringent view primarily because it was on his turf.

If we accept this as a given, then the case is now clearer:

The story took place in Shmuel’s area of authority , he permitted the מבוי, and his ruling was accepted.

After he died, Rav Anan become the new accepted authority there, and ruled stringently like Rav.

Despite the owner’s protests, it seems that Rav Anan’s stringent ruling was now accepted as binding.

If this conclusion is correct, it would follow that a new Rabbi may indeed rule stringently against the previous Rabbi under at least certain circumstances, namely if there is already precedent from an equal or greater authority (such as Rav) for the stringency, and if the previous Rabbi is no longer alive.

In the absence of the above 2 conditions, it would be hard to use this case as any form of precedent.

We should also note that the Gemara continues to refute the proof from this that Shmuel never retracted his lenient view, and answers that it is possible that he had retracted, but permitted the מבוי  for other reasons which no longer applied in Rav Anan’s time, something the owner never understood.

This reasoning was the fact that there was also a shul open to the מבוי  which counted as a second חצר, due to it being used for sleeping quarters for the shul supervisor (I have followed what seems to be the simple flow of the sugya acc Rashi, but see also Tosfos Rid. )

Shmuel simply followed his view that the main factor regarding what defines one’s home in terms of the laws of Eruvin is the place where one sleeps, and not the place where one eats.

The owner did not understand that and held that the place where one eats is what counts.

As a result, he held that Seeing as the caretaker ate somewhere else, the shul was not considered his home as far as the eruv is concerned, and the shul thus did not count as an inhabited courtyard- he thus (incorrectly) assumed that Shmuel’s permission was based on his original leniency permitting one courtyard.

According to this, Rav Anan did not necessarily repeal Shmuel’s permission because he disagreed with him on the halacha- the facts might simply have changed and the shul might no longer have been used for the caretaker’s sleeping quarters, leaving the מבוי  with only one valid courtyard.

For our purposes, seeing that the Gemara accepts this as an alternative view of what happens, there is no longer any definite proof that Rav Anan had repealed Shmuel’s lenient view- Shmuel himself might have retracted it long ago and Rav Anan was, unknown to the owner, simply adapting the same law to the new circumstances!

Despite the above “curve-ball,” the Gemara only brought this alternative in order to show that it is possible the Shmuel retracted- it does not conclude that he did retract and this was the correct version of events, and does not seem bothered at all by the clear implication of the first explanation that Rav Anan did indeed repeal Shmuel’s leniency.

This explanation also seems more likely as if it was simply a question of misunderstanding Shmuel’s reasoning, it stand to reason that some effort would to simply explain to the owner what Shmuel’s real reasoning was  (though it could be that given his entrenched view that the place of eating is “ikar”, the owner would never have accepted that Shmuel possibly held differently.)

As such, this Gemara certainly seems to offer some evidence, if not total proof, that a new Rabbi of a town may repeal leniencies of the previous Rabbi, at least subject to the 2 conditions mentioned above, namely that the previous Rabbi has died and that the stringency already has precedent from an equally rate or authority.

Though the Gra admittedly brings a different source for this, it is interesting that this indeed appears to be  the conclusion of the Rema (C.M 25/2,) though no mention of these two conditions seem to be made there, nor even of the need for him to be the official Rabbi of the city, and many poskim extend this rule to when the new Rabbi is more lenient than the previous one as well- hopefully we shall get a chance to follow up on this when we get to the next relevant sugya.

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.