Tag Archives: shabbos

Shabbos 94 שבות דשבות על ידי ישראל – a double derabonen by a Yisroel

Posted on by

Shabbos 94 שבות דשבות על ידי ישראל – a double derabonen by a Yisroel

One of the most powerful leniencies on Shabbos, is the rule of a שבות דשבות, an action which is only rabbinically prohibited for 2 different reasons.

The most common application of this applies to work done by a non-Jew on Shabbos for a Jew.

In general, it is forbidden to ask a non-Jew to perform a forbidden task for a Jew on Shabbos. According to most opinions, this is a rabbinical prohibition, which I hope to discuss in a later post.

However, one is permitted to ask a non-Jew to perform something that is only rabbinically prohibited, for example to move something that is Muktza, or perform a forbidden melacha in an unusual way, so long as there is a great need for this, to prevent suffering, or for the sake of a Mitzva. (This too, is not straight-forward, and I hope to devote a future post to it.)

Although subject to debate in the Rishonim, this is the generally accepted halacha, and is because this is only rabbinically forbidden, for 2 different reasons:

  • אמירה לעכום (asking a non-Jew to perform forbidden work) is only rabbinically forbidden
  • The actual act being requested, is also only rabbinically forbidden.
    The generally accepted source for this, is a sugya in Eruvin 67 , which allows one to ask a non-Jew to bring hot water for a bris milah through a shared courtyard where an eruv has not been made. (See Rif and Ran Shabbos 56 for a long analysis and debate on this.)

The question is, however, whether this is limited to a rabbinical prohibition performed by a non-Jew, or whether a Jew would also be allowed in case of great need, to perform an action that is a שבות דשבות, for example moving Muktza in an unusual way, or two people turning on a light in an unusual way.

In order to answer this question, one would either need to prove that whatever Chazal’s reason for this leniency is equally applicable to a שבות דשבות performed by a Jew, or find a specific case in the Gemara where a שבות דשבות by a Jew is permitted.

On the other hand, should we find a case where a שבות דשבות by a Jew is not permitted, even for the sake of a Mitzva, great need, or suffering, one would be forced to either prove that this is an exception or a non-authoritative view, or conclude that שבות דשבות is not permitted for a Jew.

I have been trying for many years to find a concrete example of what might be an example of שבות דשבות by a Jew that is permitted, within the Gemara.

Today’s daf got me extremely excited, at least for a minute!

We are told that there was a corpse in the town of Darukra, that Rav Nachman bar Yitzchak permitted to be moved to a Carmelis (an open area that is not closed enough to be a private domain and not busy enough to be a public domain.)

This action seems to be a clear example of what we are looking for, a שבות דשבות done by a Jew!

  • It is mentioned just after we have analyzed the view of Rabbi Shimon that מלאכה שאינה צריכה לגופה (A Melacha where the usual result is not needed- another post to look forward to!) is only rabbinically forbidden. As the corpse is not needed, but merely needs to be removed, this would be one reason that this is only rabbinically forbidden.
  • It was taken to a כרמלית, which is also only Rabbinically prohibited!
    It seems that we have our case!

The trick, however, comes in how we learn the continuation of the sugya!
Rabbi Yochanan, brother of Mar son of Ravina, challenges Rav Nachman bar Yitchak on his leniency.

He says that even if one holds like Rabbi Simon that מלאכה שאינה צריכה לגופה is only rabbinically prohibited (פטור אבל אסור), that does not make it permitted!

It seems clear that the challenger does not see a difference between one שבות or a שבות דשבות if it is done by a Jew, or the question would not be relevant- it would be true that even Rabbi Shimon agrees that מלאכה שאינה צריכה לגופה is at least rabbinically forbidden, but Rav Nachman bar Yitchak only permitted it to be moved to a כרמלית, which is also only דרבנן, and thus permitted as a שבות דשבות.

At this stage, one might still argue that Rav Nachman bar Yitchak himself does differentiate and permits a שבות דשבות even by a Jew.

However, if that were the case, one would expect him to reply accordingly.

Instead, he replies that even his challenger would permit this case, and even if he held like Rabbi Yehuda that מלאכה שאינה צריכה לגופא is biblically forbidden (i.e. Only one שבות is involved.)

This is because of the rule that כבוד הבריות (human dignity) over-rides any rabbinical prohibition, and seeing as this was only to a כרמלית , which is only rabbinically prohibited, it was permitted.

It seems from his reply that the reason he permitted this was NOT because of a general rule that שבות דשבות is permitted for any mitzva, or great need, but because of the התיר of כבוד הבריות that applies to any שבות, even if it isn’t a שבות דשבות.

Before I give up and acknowledge that this sugya is thus not a proof that שבות דשבות על ידי ישראל is permitted, but rather could be a proof that it is not, I make one final argument:

Perhaps, Rav Nachman’s reply is not meant to deny the permissibility of שבות דשבות על-ידי ישראל , which likely is his initial motivation for his decision.

Maybe, he is merely bringing the less controversial התיר of כבוד הבריות to answer his challenger and to show that even his challenger, and even Rabbi Yehuda himself, would also have no reason to oppose his reason!
Much more to discuss, but that’s it for tonight….

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

Shabbos 93 שנים שעשו    A melacha performed by 2 people

Posted on by

Shabbos 93 שנים שעשו    A melacha performed by 2 people

As mentioned yesterday, I would like to focus today on an extremely practical leniency in the laws of Shabbos- the exemption of a melacha done by 2 people.

 

This rules takes us all the way back to the beginning of the Masechta, where we learnt that in order to be forbidden biblically and liable to  a korban (or מיתה  or כרת  if done knowingly) for transferring something on Shabbos from one domain to another,  one has to both uproot the object from the one domain and put it down in the other.

 

Someone who does only one of these actions, has performed a rabbinical prohibition, not a biblical one, and is exempt from the biblically prescribed punishment.

 

A question that might have still been left open during the many daf that discussed this rule, is what the source is for this exemption!

 

One possibility is that it is simply another manifestation of the general rule that a biblically prohibited Melacha must be considered מלאכת מחשבת, an important, calculated, and significant act of work.

One could argue that if one only performed part of the action, leaving the rest for someone else to complete, one’s action is simply not מלאכת מחשבת.

 

On our daf, we face a different, though possibly related, exemption.

 

Here, two people perform a Melacha together, such as writing with the same quilt, or carrying the same item from one domain to another.

 

In this case, we are faced with 3 opinions:

-Rabbi Meir is of the view that one is liable

-Rabbi Yehuda is of the view that so long as neither of them could have managed the action on their own, they are exempt. Otherwise, they are liable.

– Rabbi Shimon is of the view that even if each of them could have managed the action on their own, they are still exempt.

 

The Gemara derives these 3 views from the passuk in Vayikra which is the basis for the requirement to bring a sin offering:

 

ואם נפש אחת תחטא בשגגה מעם הארץ בעשתה.

“and if one soul sins unknowingly from amongst the people, by doing it.”

According to Rabbi Yehuda, and Rabbi Shimon, there 3 מעוטים (exclusions) here:

נפש  (a person in the singular)

אחת (one)

בעשותה  performing it, ie ALL of the transgression)

 

Rabbi Yehuda uses one of these to exclude the case when each of them do part of the Melacha, ie either עקירה (uprooting) or הנחה (putting down), as in the first Mishna of the Masechta.

He then uses another one to exclude a case when two people perform the entire act together, when they could have done it on their own, ie our case, when two people carried a fig outside.

The third exclusion is used by him for a different matter.

 

Rabbi Shimon agrees with Rabbi Yehuda regarding the first two exclusions and uses the third as well to exclude a case when both of them could NOT have done the action on their own.

 

Rabbi Meir holds that the first 2 exclusions, i.e. נפש אחת , count as 1, not 2, and only excludes the case of 2 people doing different parts of the melacha- he uses the other exclusion (בעשותה) for  the same different matter Rabbi Yehuda derived from it.

 

It follows that both Rabbi Shimon and Rabbi Yehuda agree that in a case where two people perform the entire melacha together, and they could have each done it on their own, they are exempt.

The Halacha follows this majority view (see Rambam, Tur, and Shulchan Aruch on this subject), and both cases of שנים שעשו, the case where different parts of the melacha are performed by 2 different people, and our case, where an entire  melacha that could have been performed by one person is done by two people together, are exempt from the biblical punishment and are only rabbinically forbidden.

 

It also follows from our daf that both leniencies are learnt from their own unique words in the above mentioned passuk, and not just from the requirement for מלאכת מחשבת.

 

Why is it important at the end of the day whether this is derived from its own passuk, or from מלאכת מחשבת?

 

I would like to suggest two possible practical ramifications (נ”מ):

 

What happens if two people perform together another forbidden action, NOT related to shabbos, that they could have both done individually?

For example, if two people together made an idol.

If the exemption was only from מלאכת מחשבת, it would only apply to shabbos, and these two would definitely be liable.

However, if the exemption is due to the independent passuk regarding the laws of sacrifices, it has no specific relation to shabbos, and should in theory also apply to other prohibitions.

Yet despite this, I am yet to see an example of the Gemara applying this exemption to prohibitions other than shabbos.

 

Another Nafka Minah could be regarding the leniency of שבות דשבות (an action that is only rabbinical in nature for two different reasons.)

The rule is usually, regarding shabbos at least, that such an action is permitted in case of suffering, great need, or for the sake of a Mitzva (though whether this applies to an action performed by a Jew, or only to one performed by a non-Jew is in fact subject to debate.)

If this leniency  indeed applies to actions performed by a Jew as well, what happens if two people perform one action that each of them could have done on their own, in an unusual manner (שנוי)?

This action is only rabbinically prohibited for 2 reasons- it is unusual, AND 2 people have performed it instead of one.

However, if the leniency of שנים שעשו, is also, like שנוי, derived from the requirement of  מלאכת מחשבת , one could argue that this is not really a שבות דשבות , but all part of the same one exemption, namely מלאכת מחשבת!

(I did put this possibility to haGaon Moreinu haRav Osher Weiss Shelita, and his gut feel was that it would still be called a שבות דשבות, but there is certainly what to explore here.)

 

If, on the other hand, as we have proven, the leniency of שנים שעשו comes from a completely different context than that of שנוי  and other Mishkan\Meleches Machsheves related leniencies, our case would clearly be an example of  a שבות דשבות , and according to those who permit this even when done by a Jew for the sake of Mitzva, great need, or to avoid suffering, this should certainly be permitted!

Shabbos 92 מתעסק and unintentional melacha revisited

Posted on by

This Daf is packed with examples of some of the most important principles of Melocho on Shabbos, mainly based on the idea that in order to be biblically forbidden and punishable, an act has to be considered מלאכת מחשבת (a significant, important, or calculated act of work.)

Among them, are the idea that a melacha done in a significantly unusual way (שנוי) is exempt from punishment, as is the rule of two people performing a melacha that could be done by one person ( more on that tomorrow , Hashem willing .)

We have discussed before the concept of מתעסק, where someone who does not have full intention to perform the forbidden act might be exempt .

This, unlike many of the exemptions of מלאכת מחשבת, is derived ( כריתות יט.) from a specific מעוט ( exclusion) in the verse that obligates one to bring a קרבן חטאת for performing a serious transgression unknowingly – “וחטא בה פרט למתעסק” . ( interestingly enough, so is שנים שעשו, right here on the daf)

Yet , despite having its own source, the Gemara in numerous places also states that המסעסק בשבת פטור מלאכת מחשבת אסרה תורה המתעסק בחלבים ועריות חיב שכן נהנה – one who performs a melacha on shabbos without intention is exempt, as the Torah only forbade calculated melacha, but if one eats forbidden fats or sleeps with someone forbidden to him unintentionally, he is liable , as he has derived pleasure from it .

This seems to imply that מתעסק is yet another exemption of מלאכת מחשבת , and not an independent exemption based on its own source .

One can ask further that if the only reason מסעסק is liable by forbidden fats and עריות is because of the pleasure he gets ( a subject for analysis in its own right), then it should apply in ALL areas of halacha where pleasure is not a factor, not only on shabbos , so what is the relevance to מלאכת מחשבת , which is only an exemption on shabbos? ( see Rashi there who asks the question and takes a different approach to what I suggest below, which is more constant perhaps with other Rishonim here , for reasons outside the scope of this post, but that need to be fully studied to get an understanding of this concept.)

It stands to reason that there probably two different kinds of מתעסק or intentional melacha , one category that is exempt in all areas of halacha other than where הנאה ( pleasure) is involved , and one that is only exempt on shabbos .

For example , the classical case of מתעסק where one intends to pick up something detached from the ground and landed up picking up something connected to the ground ( see earlier post on perek 7) , is similar to intending to eating permitted fat and landing up eating forbidden fat, which would be exempt if not for the fact that he derived benefit.

It follows that there is no need for the concept of מלאכת מחשבת to exempt this, as it is covered under the blanket exemption learnt from its own source, which applies in theory to all areas of halacha.

But there is another kind of מתעסק , which we see in the main sugya in כריתות, as well as on our daf today !

This involves a case where one intends to do something that is forbidden, but lands up performing the same forbidden action on a different חפצא ( object ) than intended , or in a different manner (צורה) than intended .

One example subject to debate in the sugya in כריתות is when one intends to light or extinguish a certain candle and lands up lighting or extinguishing a different one .

In other areas of halocho, if one would intend to , for example, bow down to one idol. , and landed up bowing down to another , it is very possible that one would still be liable, seeing as one intended to do the same forbidden action, and there is no exclusion from וחטא בה .

However, on shabbos, the exemption of מלאכת מחשבת is so strong, that it requires a complete fulfillment of נתקים מחשבתו, (his intentions were fully fulfilled .)

Any deviation from this could be a reason for exemption, due to this broader form of מתעסק.

A far -reaching application on this rule is found in a Mishna on our daf!

If one intends to carry something in front of him, and lands up carrying it behind him, even though there is no lack of intent ( מתעסק) in the מעשה ( action), or even in the חפצא ( object of the action), but merely in the צורה ( manner or form of the action), one is exempt!

Rashi explains that this is a form of לא נתקיימה מחשבתו ( his intentions were not fully fulfilled ) which in turn is a form of מתעסק!

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

Shabbos 82  Health and safety  matters (excuse the pun)

Posted on by

On this daf, we are told how Rav Huna asked his son Rabbah, why he did not go to learn anymore by Rav Chisda, who was particularly sharp in his learning.

Rabbah replied that Rav Chisda used to always teach them “worldly matters”, and he preferred to focus on only Torah during his studies .

For example, he used to tell them that when one goes to the toilet, one should not sit down too quickly or push too hard, as it could cause injury .

Rabbah’s response was that he was teaching him matters of health (the life of people ) , and that was even more reason to go learn with him!

The most obvious explanation of this is that the Torah commands us to look after one’s health and safety and avoid danger, in the passuk

 ונשמרתם מאוד לנפשותיכם ( be very careful with your lives.) ( Devarim 4/9) 

The Rambam is generally presumed to hold that anything one does that is bad for one’s health or a danger to his life will usually be a transgression of this Mitzva ( See for example  Hilchos Deos chapter 4 and Rotzeach ushmiras hanefesh chapter 14 and 11/4, though he might also have other sources for this- another discussion for a different post, perhaps )

If the Rambam’s definition is correct, than anything which is health or safety related is part of this Mitzva and thus considered Torah, so Rabbah’s claim that he preferred to focus on “Torah” was ill informed, seeing as this very much WAS Torah !

In truth though, even if this particular passuk is not referring to avoiding physical danger, but rather spiritual danger as in its context (see Torah Temima on the passuk for different views on this ), there are plenty sources that avoiding danger is a Torah requirement, and in fact that it is MORE important than avoiding sin (חמירא סכנתא מאיסורא -see Chullin 10a.)

However, if one takes a more careful look, one still needs to explain :

1. What was Rabbah was initially thinking?- did he really not know that looking after oneself is a Torah requirement?

2. Why does Rav Huna say that it was even MORE reason to go? If health and safety is just another Mitzva , then why should it be even more important than learning Brachos  or Shabbos or Yevamos?

This is only one of many statements of Chazal that venture into the realm of health and medicine, to the point that one often finds what seem like clear contradictions between the views they express and those of modern medicine (more on this perhaps in a different post.)

In order to address this problem,  Rabbeinu Avraham son of the Rambam (Maamar al Derashos Chazal)  tells us that such contradictions should not worry us, as Chazal did not get their medical knowledge from any form of Torah  tradition or prophesy, but rather based their advice on the medical knowledge available to them at the time.

The Rambam himself wrote similar things regarding Astronomy (Moreh Nevuchim 3/14.)

Perhaps precisely for this reason, Rabbah was of the view that medical issues should be left to the doctors and Rabbis should focus on teaching Torah only, stating the mitzva to look after oneself , but not going into the practical details, which one should rather learn from the doctors of the time .

Rav Huna, however , knew that if Rabbis don’t take health matters seriously and teach it to their Talmidim, the talmidim won’t take it seriously, and it is therefore their absolute obligation to become as familiar as they can with the medical knowledge of the time, and under the guidance of their medical consultants, drill it into their students .

Alternatively, perhaps Rabbah held that such details, being subject to change as medical knowledge develops,  cannot be part of a timeless Torah ,that never changes .

Rav Huna taught him that although the facts and knowledge one has available to apply to the Mitzva might change , the Mitzva itself is timeless and part of that timelessness is the need to constantly apply new knowledge to how it is carried out.

In fact, Rav Huna might be suggesting that studying  a theoretical mitzva  which does not include practical ways of fulfilling it in each time and environment, is an inferior form of Torah study itself .

As such, he tells his son, destined to become a leading Amora in his own right , that on the contrary, the fact that Rav Chisda doesn’t just teach the mitzva out of context, but emphasizes the  contemporary wisdom required to carry it out in each place and time, is EVEN more of a reason to learn by him, as such Torah is actually superior – it is not enough to learn about the Mitzva of being healthy- one has to study health itself in order to be able to fulfill the mitzvah properly , and that is not a secondary level of Torah, or a mere הכשר מצוה , but Torah itself !

This also explains the Mitzva of learning astronomy which we discussed in a previous post re כי היא חכמתכם ובינתכם , and is summed up incredibly by the famous statement of the Vilna Gaon  that “all categories of (secular) wisdom are required for our holy Torah and are incorporated with it” (See  “הגרא” מאת דב אליאך   chapter 19 for references and detailed discussion)

And while it could be argued that this is only necessary later in life once one has completed a basic understanding of Torah , perhaps also the initial feeling of Rabbah bar Rav Huna, it seems that Rav Huna was teaching him that, on the contrary, one has to study these wisdoms in one’s youth, at least as they come up, in order for one’s learning to be of a more superior quality!

P.s. one could go a simpler route and argue that Rav Huna was simply teaching his son that looking after one’s health is NOT just another Mitzva, but more important than other Mitzvos, given the precedent of וחי בהם and pikuach nefesh,  but one would then have to explain how Rabbah bar Rav Huna was not aware of such a simple principle such as “danger is more severe than prohibition .”

In light of recent events where we have seen plenty people who learn regularly but seem to be unaware of this rule, at least on a practical level, that might seem less far-fetched  than our initial feeling, but I would still rather not attribute such a view to any one of the Amoraim, even in their earlier years of study !

Shabbos 81   Toilet paper shortages 

Posted on by

One of the most challenging aspects of Gemora study today is being able to step into the environment in which Chazal lived – the agricultural and pre medieval jargon often feels irrelevant to us and makes it harder to internalize the timeless laws and values that they teach us.

As hard as it is to identify with an ox goring a cow, or share cropping, it is even harder to identify with areas of halacha that seem to assume an extremely primitive lifestyle .

For example, so much Talmudic discussion assumes that nighttime was a time without good lighting, and unsuitable for many activities, and candlelight was often an unreliable  luxury. 

When the Gemara (Brachos 2) assumes that poor people eat dinner early, due to not being able to afford candles to eat by, or discusses what to do when the candles go out during the Shabbos meal ( Pesachim 101a ) , it is kind of hard to identify in an era where electric light is taken for granted in all but the most undeveloped regions .

Yet sometimes, Hashem puts us in situations, where we suddenly able to identify with the sugya- the regular power outages in today’s South Africa, for example, which seem to love shabbos evening in particular, or those experienced even in modern New York in the aftermath of hurricane Sandy , suddenly showed us how we cannot and shouldn’t take it for granted – I am not saying this was Hashem’s reason, chalila, but there is no doubt that we are expected to learn whatever logical lessons we can from situations he puts us in .

One of the ” lighter”  though still depressing  moments during the horror of the Corona outbreak was the pictures of shoppers from Australia to Israel hoarding toilet paper, often leaving the shelves bare .

The prospect of running short of such an essential commodity in modern times in a modern country was incomprehensible prior to this pandemic, but we soon realised that nothing is to be taken for granted .

The truth is that for most of our history, toilet paper of the modern kind did not exist, and we seem to have managed just fine.

In fact , until recently, having one’s own built in toilet in the house was not the norm, and people used to set aside a demarcated area as an ablution spot, sometimes in ones courtyard and sometimes out in the fields .

This was often fraught with embarrassment and sometimes danger, and we were faced with all kinds of questions  regarding davening near a “toilet”, where to leave one’s Tefillin ( which people wore all day), how to ensure modesty, protect against the many demons that were believed to hang out in such places, and of course, on our daf, how to use one on Shabbos.

Finding a suitable toilet was often such a challenge , that in searching for the meaning of the biblical phrase “לעת מצא” – a Eureka moment , one of the Amoraim applies it to the moment one finds a suitable toilet  (Brachos 8a) – something hard to appreciate today, but that those of us who have spent hours on safari or driving through India, can certainly identify with more easily .

On our daf, there is a halachik discussion as to how to carry stones on shabbos required for use as “toilet paper.”

In the absence of that most essential of household commodities, the norm was indeed to use a stone, or perhaps a reed, for cleaning oneself .

Although such a discussion might have seemed mundane or even comical to us “moderns”, it is incredible how this suddenly seems more understandable after the events of this year.

Issues discussed include how to carry  below the minimum amount required to become liable for punishment , how to avoid the concern of tearing out grass, how to bypass the problem of Muktza, and of course the very important factor of כבוד הבריות ( human dignity ) and how it can push aside rabbinical prohibitions 

We daven that we shall merit to appreciate the daily things we take for granted, as well as  the wisdom of every word of the Torah, without having to be put in difficult and unimaginable circumstances chalila in order to do so!

Shabbos 80 Remembering the Temple and leaving the wall unplastered 

Posted on by

In our Mishna, we are told that the minimum quantity of thick sand that one is liable for transporting on shabbos is the amount needed to put on top of a trowel filled with plaster (and mix with it) to strengthen it before use in building .

The Gemara suggests that this Mishna must be the opinion of Rabbi Yehuda who holds that sand indeed does strengthen plaster. ( otherwise this would not be considered something of importance to be considered a punishable act .)

This view is reflected in a Beraisa which says that one is not permitted to plaster his house, as a sign of mourning for the Temple, unless one mixes the plaster with straw or sand to make it less effective  .

Rabbi Yehuda holds that it is forbidden  even if one mixes it with sand, as sand strengthens it .

The Gemara refutes this suggestion and says that it is possible that even the Chachamim who argue with Rabbi Yehuda would accept the ruling in the Mishna, as the act of weakening the plaster is considering for its benefit so that it can be used for plastering one’s home.

It follows from this discussion that everyone agrees that there is a prohibition against plastering one’s house  even during the week without adding something to the cement that weakens it , and this prohibition was made in order to make us remember that we are in a constant state of mourning for the destroyed Temple , שיבנה במהרה וימינו .

The truth is that this prohibition is also brought in Bava Basra 60b,  and there  is a different Beraisa that is also brought  there that says that plastering the house is only permitted if one leaves a square of 1 armlength  unplastered.

We need to clarify whether this is a second condition, both of which are required , or whether anyone of the two is sufficient. A third option is that the authors of the two statements actually disagree with each other, and only one of the two conditions would work at all.

This is also part of a list of decrees that Chazal made after the destruction for the same reason , including refraining from serving one dish at a meal, putting ash on the head of a חתן (groom), leaving out a stone from women’s jewelry  , and based on Sotah 48a and Gittin 7a,  refraining from playing musical instruments (a topic for another post, Hashem willing .)

Although the custom to break a glass at a wedding might be a derivative of these customs, and there are some pious people in Yerushalayim  in particular that do indeed have unplastered squares in their homes, it does not seem to be common practise to follow all these things, and given that these are based on explicit rulings in the Talmud, this requires some serious explanation.

One possibility is that these decrees never actually caught on and were not accepted by the majority of Jews at the time, due to their being too harsh.

Although this might seem surprising, the Rambam does in fact rule (Mamrim 2/6-7) that if Chazal make a decree and it is not accepted by the majority of the people at the time, it is null and void!

He even rules further than even it appears to have caught but a later court din finds that this is not so, they may annul it, even if they of lesser stature than the court that enacted it .

However , we see  from our daf ( and the sugyas in Bava Basra and Sotah ) that this rule was discussed many years later by the Amoraim of the Gemora, and no mention is made of the possibility  that it didn’t catch on.

It is clear from the same  Rambam (Mamrim 2/2)  that once a decree was accepted , the decree remains in force and cannot be annulled ( though see Kesef Mishna there who toys with the idea that if the decree indeed was later dropped by the people because they could not  handle it, it may also be annullable- he rejects the idea mainly because of a Rashi that implies otherwise , itself an interesting point regarding his methodology .) 

Furthermore, the Rambam himself brings this rule, together with the others ( Taaniyos 5/12) and rules that it is only permitted if one leaves a square Ama unplastered – he doesn’t seem to clearly mention the heter of mixing the plaster with sand or straw ( why this is so requires an analysis  of the sugya and Rambam outside the scope of a daf post, but see the נוסעי כלים on the Rambam for a detailed discussion about this, or  preferably try work it out yourself first!)

However, he does make it clear, based on the Gemora, that if one buys a house already plastered , there is no need to remove a square Ama’s worth  of the plaster .

As most of our houses are bought already plastered, this could explain why we do not see these unplastered squares in most people’s homes.

However , it seems that if one builds a home from scratch, as people certainly do still do, one would be required to leave the square unplastered, as per the Gemara and the Rambam.

Yet many religious people do not seem to do this either, and many or all of the other decrees mentioned in the Gemara AND brought by the Rambam also do not seem to be  universal normative practise .

This is even more bizarre given that these laws are brought by the Tur and Shulchan Aruch as well( O.C 560.)

Although discussed by various Poskim, including the Chayei Adam, Mishna Berura  and the Tzitz Eliezer regarding music (15/33) , I am not aware of any halachically convincing explanation for this .

Shabbos 79 No-one is immune from financial temptation 

Posted on by

On our daf, we continue dealing with the question of whether a loan document ( שטר חוב)  that has already been paid back has any residual use to the lender or not. 

This will of course impact on liability for transferring it on Shabbos .

Typically, a person who borrows money will sign a document together with witnesses which the lender will then keep as proof of the loan. 

When the borrower pays back the loan, the document could be returned to him, or destroyed , or a שובר ( type of receipt ) could be signed and given to the borrower.

Given that documents were  written on animal hides   and involved a degree of expense (paper was not cheap and readily available as it is today,)  it stands to reason that the lender might wish to keep the document to use to cover a container with, or for some other use.

Yet we see an opinion that this is forbidden, presumably even if the borrower trusts him and agrees.

One opinion goes further and says that it is forbidden even if a שובר is written !

Rashi brings a passuk in Iyov as a source for this prohibition , which says “Corruption  should not dwell in your tent .”

Without discussing the propriety of using verses in the Navi or Kesubim as basis for laws, and whether this is a דרשה גמורה or a  kind of אסמכתא, It is clear that Rashi understands that even though someone is honest, and even trusted by the other side, it is forbidden to bring oneself into financial temptation.

Financial temptation  is one of the things that no-one is immune from – ” as bribery blinds the eyes of the wise and corrupts the words of the righteous ” ( Devarim 16/19,)  and although this is far from actual bribery, the temptation to claim back a repaid loan a second time, coupled with the chances that the borrower might lose his receipt , is enough reason to forbid the lender from retaining the loan document , even though it has some permitted  financial utility to him.

It could be noted that  according to Rashi at least, this is not a concern of חשד, or that people will suspect him of corrupt intent, as there is already an accepted source in the Chumash itself for the need to avoid any suspicion, namely ” and you shall be clean with regards to Hashem and Israel ” ( Bamidbar 32/22).

Rather, the passuk in Iyov is revealing to us that even if a person would not be suspected of wrong doing , he is not allowed to bring himself to any temptation to be corrupt .

It can be illustrated from various sugyas that the need to stay away from any financial temptation, or even the slightest financial suspicion,  applies to the greatest of people- in fact, the greater one is, the more squeaky clean one is expected to be.

In Brachos 5b , we are told how Rav Huna had 400 barrels of wine turn to vinegar. 

When his colleagues came to visit him, they told him to look into his affairs to see what he might have done to deserve it (important to note that this is not the way one should normally talk to people who are suffering and it might be a transgression of the prohibition of אונאת דברים – see Bava Metzia 58b)

After some give and take , he asked them if they heard anything negative about him, and they replied that they had heard that he did not pay his sharecropper his share in the yield.

Rav Huna replied that the sharecropper  stole more than the value of his share already, so he had no claim .

They replied that despite this, when one steals from a thief, one tastes the taste of theft ( see Rashi there.)

He then agreed to pay the sharecropper and the vinegar became wine again ( or was sold for the price of wine.)

The message seems to be that even though Rav Huna was within his legal rights , after all , the law is that  one is permitted to take  back what is his himself without going to court ( see Bava Kama 27b  re עביד איניש דינא לנפשיה ), someone of his level certainly has to be completely above any chance of suspicion – the mere fact that people suspected him of wrong doing was reason for him to lose a fortune of money . 

There is another law which prohibits lending money without witnesses, as one could be causing the borrower to sin by defaulting on the loan (  Bava Metzia 75b.) 

The Gemara tells a story where Ravina  asked if that even applies to someone who lends him money, given that he is honest and would never default. 

He was told that it applies even more so to him, as he is extra busy and could “forget.”

Although some of these cases refer to suspicion and some to temptation or even forgetfulness, all of them show that no matter how great one is, one cannot rely  on his greatness to take even the smallest chance of financial impropriety or suspicion.

If only we could live up to even part of these high expectations!

Shabbos 78   What is considered שכיח (common)   and its role in halacha 

Posted on by

(I have indulged  the common English  translation here for שכיח but obviously much meaning is often lost in translation and it would be more correct to at least use the hebrew equivalent that Chazal use, namely “מצוי” ) 

Our Gemara has been spending a lot of effort in determining the minimum quantity of various things that one would need to transport on shabbos in order to be subject to the relevant penalties.

The general rule that has been established so far is that we identify the minimum amount that is useful for its required purpose and that becomes the cut-off point. 

What happens, however, if something has a common use that requires a certain quantity, but also a less common, or uncommon use that requires a lesser quantity ?

Do we go by the higher quantity that is required for its common use , or are we stringent and go by the lower quantity required for the less  common or uncommon one?

As an example, water is used for many purposes – it is used for drinking , washing, cleaning or soothing wounds, cooking , and much more .

Drinking water is clearly a more common use than using it for a wound , given that people need to drink multiple times a day, but hopefully are not wounded that often  .

Abaya formulates a rule whereby whenever an item has a common and an uncommon use , the common use is the one that counts .

Therefore , even though both wine and milk can be used for healing, for which smaller quantities are sufficient , we go by the quality required for having a meaningful drink, namely a reviis ( or a quarter reviis for wine that needs to be diluted as discussed earlier.)

However, when an item has 2 common uses, we go by the smaller of the 2 quantities.

 ( he does not state whether they need to be equally common however , and whether common is an objective or relative term is an important discussion I hope to be able to address another time, and at least touch on here.)

As a result , when it comes to honey which is commonly used both for healing and eating, we go by the smaller amount  that is useful for putting on a wound .

However, Abayas rule is challenged by our Mishna, which says that the minimum quantity of water is the amount one used for eye ointment, significantly less than the amount used for a significant drink.

It is clear to all that drinking is a much more common usage of water than spreading eye ointment !

Abaya answers by limiting the scope of our Mishna to people in the Galil, who were poor, and would never use wine or milk for wounds.

For them, using water for a wound is thus also considered common, and the lower amount needed for that is what counts as far as shabbos is concerned .

Rava also seems to accept Abaya’s rule, but gives an alternative answer, whereby the scope of the Mishna is not limited but applies to everyone.

His reasoning is that seeing as according to Shmuel, wine and milk can cause long term harm to the eye when used in ointment and water does not, people prefer water for such purposes, and thus healing is also considered a common use of water .

How though do we define “שכיח” or “common” regarding this and other halachot?

Firstly, it is important to clarify that whereas we are indulging the use of the English word common as a translation for the Aramaic “שכיח” , what is important for the sugya is not the Oxford definition of the English word, but the halachik definition of the original Aramaic  word.

It is well known that one of the main criteria Chazal use to decide whether to make a decree against a certain action A in case it leads to a biblically prohibited action B, is how   common this forbidden result in fact is.

It should  also be known to any student of Bava Kama that the amount of liability  one has for damages done by one’s animal depends on how common (מצוי) , the damage is, and thus how much one was expected to guard it .

When it comes to entering dangerous situations , we also know from various sugyos ( for example Pesachim 8)  that when damage is common, a person may not rely on being protected by the Mitzva that he is performing. 

In addition, the requirement to check whether something is not kosher or not ( like checking a slaughtered animal  in various vital organs to see it does not bare signs of being critically injured before slaughter  ( a טריפה), is dependent on how common such injuries are ( see Rashi, Chullin 12a) , as is the requirement to check for bugs in fruit and vegetables ( see Rashba  on same sugya though he admits Rashi disagrees ) – the generally accepted rule there is that a “common” minority or “מעוט המצוי” of problematic  cases is enough to require checking, at a rabbinical level, even though biblically, a majority is required. 

It is not certain that the same definition of “common” would apply to all the above situations, but it certainly would be nice to find more rather than less consistency in the usage of the term – unfortunately I am unable to provide this right now .

However, let us at least try to define the term as much as possible within the scope of our current daf and sugya .

There are two major possibilities that stand out:

1. Common is defined by the person, or people who use the item.  If people  commonly  or perhaps most commonly use an item for purpose A, then even if they also use it for purpose B, we go by A and not B.

2. Common is defined by the purpose  the item serves .

If the purpose is  commonly or possibly  most commonly served by item A, then even if it is also sometimes served by item B, item A’s minimum required quantity is tied to that purpose , even if it has another equally, or possible more common purpose with a higher required amount .

A Nafka Minah would perhaps  be in our case, the case of water , (as well in the case of honey mentioned in this sugya, but I leave that to you to consider .)

If the first definition is used, then the important factor will be what water  is commonly used for. 

However , if the second definition  is used , then the  relevant factor will be whether water is a commonly used item for the purpose that the least amount of it is required for , namely eye ointment .

It seems more likely to me  from the answers of Abaya and Rava, and this is indeed how Rashi seems to learn, that  the second definition is what counts .

Even the people of the Galil, according to Abaya, and all people according to Rava , clearly use water more often for drinking than for wounds .

Yet the fact that when ointment is required for a wound, water is the item of choice and a commonly ( perhaps most commonly ) used item, ointment is considered a common use of water regarding our rule, and the smaller quantity required for it is what counts !

( p.s. The door is not necessarily closed on the first option, assuming that “common” has some objective rather than relative definition, which does not fit water being used for ointment in the הוה אמינא   but does in the מסקנה . Any suggestions are very welcome )

Shabbos 77/ Parshas Bamidbar Machlokes in metzius and the size of an olive

Posted on by

It is a generally accepted rule in the world of “lomdos” (analytical learning)  that even where a dispute amongst Chazal appears to be about facts [can a child father a child or not ,is one example of many (Sanhedrin 69a) as is דם מפקיד פקיד או מחבר מחבר ( Kesubos 5b) ] , if it is something that can be readily checked, we attempt to show that the argument is really based on something other than just superficial facts ( is someone who has matured to the point that he can father a child still considered a child, or is דם perceived halachically as if it is מפקיד פקיד or מחובר מיחבר , for possible, if not problematic examples )

When the dispute is about facts that cannot be easily verified by observation , like some historic arguments ( like how old biblical figures were at certain times ) or unobservable phenomena , there is no need to do this, as the dispute can simply be explained as being based on different interpretations of the evidence or pessukim.

On this daf, we learn the chiddush of Rabbi Nosson that whilst the minimum quantity of wine required to transgress the melacha of carrying is a reviis, if the wine is conjealed to the point that it is more solid than liquid, the minimum measure of a kezayis  applies instead. 

The Gemora understands that this is because when a reviis of wine congeals, it shrinks to a kezayis.

Rav Yoseif then suggests that this view is the same as that expressed by Rabbi Yossi son of Rabbi Yehuda regarding the blood of an animal that dies without halachik slaughter (a neveila)

A kezayis of flesh from a neveila can make someone impure, but what about liquid blood?

Beis Shamai holds that blood of a neveila is considered like the flesh and does not cause impurity, whereas Beis Hillel holds that it does.

Rabbi Yossi holds that even Beit Hillel require at least a reviis of blood to make someone impure, because if a reviis of blood were to congeal, it would shrink to a kezayis.

Rav Yoseif understands from this that both Rabbi Nosson and Rabbi Yossi agree that a reviis of liquid is the equivalent of a kezayis of solids.

However- Abaya questions this assumption, and suggests that on the contrary, they may in fact totally disagree.

He points out something that students of physics should recognize, namely the fact that not ALL liquids are equal (nor are all solids.)

Blood as a liquid is much thicker than wine as a liquid, and therefore it does not have to congeal as much to become solid.

It therefore follows that if a reviis of wine is required to produce a kezayis of congealed wine, less than a reviis of blood is required to produce a kezayis of congealed blood.

and if a reviis of blood is indeed required to produce a kezayis of congealed blood, then MORE than a reviis of wine is required to produce a kezayis of congealed wine.

If so, it follows that the amount of liquid blood and wine respectively that are required to produce a kezayis of the congealed equivalent is actually a matter of dispute between Rabbi Nosson and Rabbi Yossi!

This appears to be a classic example of a machlokes metzius (factual dispute) that should be easily checked out by experimentation, rather than debated.

We also need to explain what Rav Yoseif himself was thinking- surely he was not unaware of the basic fact that blood is thicker than wine?

I think that one can perhaps explain Rav Yoseif’s view by way of the important principle that Halachic rules are very often NOT based on precise facts, measurements, or statistics, but rather on fixed approximations based on perceptions.

When it comes to working out the required dimensions of a round Sukkah (Sukkah  7b) or of a round beam on top of an eruv (Eiruvin 13b), the Mishna simply applies a round ratio of 3 to 1 between the circumference of a circle and its diameter, substantially less than even a reasonable estimation of pi, which at the time of Chazal was historically already known to about 2 decimal places. (see also Bava Basra 14b)

Whereas Tosfos in Eruvin are bothered by this discrepancy, and seem to understand that the Mishna and certainly the accompanying sugya are taking the ratio of 3 to be precise, the Tosfos haRosh there actually suggests that Chazal are intentionally imprecise, based on precedent from the passuk describing the pool that Shlomo built.

We see from there that in at least some areas of halacha, the Torah does not require precise measures that fit absolute scientific reality, but rather simply estimations that Chazal taught us, which are perceptibly close to the real measurement but simple enough to apply across the board.

This principle is actually applied  by the Chazon Ish in very novel ways to issues relating to the dateline (subject of 2 previous posts) , whereby he allows it to follow the coastline and deviate somewhat from the 90 degrees he claims is its absolute geographic position.

Perhaps, Rav Yoseif believes that the relationship between solid and liquid measurements is also an example of a case where the Torah allows for an estimation, and we are not required to make allowances for the precise density of the liquid or the solid.

Similarly, perhaps Abaya holds that either there is simply no justification for applying such estimations in this case, or that the variance in density and resulting solid size is too high to be comparable to the pi analogy.

Perhaps a similar idea can be used to explain the machlokes that Abaya sees in Rabbi Nathan and Rabbi Yossi’s rulings, in that they are not debating the facts- both agree that neither a reviis of wine or blood is the precise equivalent of a kezayis of their congealed version.

Or perhaps the reviis to kezayis ratio is only true of some hypothetical congealable liquid with a density somewhere between that of wine and blood, and the dispute is on which side of the line to estimate?

One thing we seem to see  for sure from this daf at least, is that there is a direct relationship between the side of a kezayis and  that of a reviis, and if one follows a certain view as to the size of the kezayis, one should certainly follow the same view in regards to the size of a reviis!

in this parsha, we are told that 20 is the determining age for maturity regarding being counted in a census, going to the army, etc.

We also know from numerous sources (among them a few daf ahead in our Masechta), that it is also the also the determining age for liability to punishment in the hands of heaven.

We know from the Torah sheBaal Peh that when it comes to many other matters, including the obligation to perform mitzvos and liability to punishment in Beis Din, the cut-off age is 13.

Although it is clear and obvious that there is a huge variation in maturity amongst different 20 year olds, and different 13 years olds, we see here clearly that at least to some extent, halacha is not determined by precise objective factors, but by fixed estimations- the same argument can be applied to most halachik measurements.

However, unlike what we saw regarding pi and perhaps the other examples we mentioned, the actual age or measurement provided by the Torah here appears to be absolute- a minor who is one minute younger than 13 will be exempt , and one 13 or older will be liable.

A young man 1 day younger than 20 will be exempt from the army, and one day later will be recruited.

I suggest that wherever it is simply and straightforward to make a fixed precise measure, this is indeed what the Torah does, but when it is impossible (like in the case of pi) or extremely difficult for people to use  a precise fixed measure, an estimated fixed measure is provided instead.

so much to say still, but shabbos beckons- please share your thoughts either way.

Shabbat Shalom and Yom Yerushalayim Sameach

Shabbos 76 Diluting wine used for a blessing 

Posted on by

On our daf, we discuss the minimum amount of something one needs to transfer on shabbos in order to be liable to punishment.

The  previous Mishna taught us a general rule that something needs to be in a useful quantity  ( worth putting away or כשר להצניע ) in order to cause liability, which fits in well with the concept in general of מלאכת מחשבת , although it should be noted that prohibitions generally come with a minimum שעור    (measurement) that causes liability , not just shabbos prohibitions and these measures are derived from verses and/or oral tradition (הלכה למשה מסיני  עירובין ד.)

It should also be noted that although one is not liable to the prescribed punishment for a transgression that involves less than the minimum amount, we hold that it is still  biblically forbidden to perform such  a transgression  with less than the minimum measurement(חצי שעור אסור מן התורה ) 

When it comes to transferring wine on shabbos, the minimum amount the Mishna requires to be liable to punishment is “the amount required to mix a cup with.”

Wine was generally very potent and thus diluted before use, and the amount required to mix with water to make up one drinkable cup of wine was considered useful or important enough to make one liable for carrying it.

But what size cup are we dealing with?

The Gemara brings a Beraisa which says that it is referring to a minimum size כוס של ברכה , the cup used for  ברכת המזון (the blessings after a bread meal.)

Seeing that after dilution, the cup needs to contain a reviis of the mixed product (etween 86 and 150 ml depending on which opinion is followed ), a quarter of a reviis is sufficient for this .

Not only was it normal to dilute wine before drinking, but Rava was off the opinion that if the wine was not diluted properly , it is not considered wine at all.

This requirement is also the view of Rabbi Eliezer expressed in a Beraisa in שלושה שאכלו  (Brachos 50a)

Yet near the end of the same perek  (Brachos 52a ), we are told  by Rabbi Yochanan that the כוס של ברכה  has a number of requirements, one of them being that it should be “חי ” ( live or undiluted)

How do we reconcile that with our Gemora which clearly says that the wine not only should be diluted 3 to 1, but needs to be?

One possibility, brought by Rashi there, and quoted by Tosfos on our daf, is that the wine only needs to be undiluted when poured into the cup, but after that, it can and should be dilute.

The weakness of this answer is that the word “חי” is now not referring to the cup at the time of the blessing, but only at the time it is poured.  We would then need to prove that it is already considered a כוס של ברכה  from the time of pouring ( and what if he poured it for something else, diluted it, and then decided to use it for כוס של ברכה? The כוס של ברכה  cannot be פגום  (blemished) but being poured for the sake of כוס של ברכה doesn’t appear to be one of the requirements listed in Brachos …) 

An alternative answer brought by Tosfos is that “חי” means partially diluted as opposed to fully diluted, not completely “neat.” Tosfos brings an example of such usage from the law of the בן סורר ומורה (rebellious son), who is only liable if he drinks a certain quality of undiluted wine, yet it is taken there to mean partially diluted.

The initial ברכת הזמון is thus said on a only partially diluted cup which qualifies as חי, after which it is further diluted in the correct quantity.

Yet another answer brought by Tosfos from the sages of Narbonne, is that “חי” in this context does not mean “undiluted ” but rather whole or complete, in a similar way that eating an ant whole ( as opposed to crushed up) is referring to as חי , in the context of דין בריה ( the rule that one is liable for eating a complete forbidden creature even if it is smaller than the usual required quantity for liability ( a kezayis)

What is interesting is that in all 3 answers, Tosfos  seems to take  Rava’s requirement  that the כוס של ברכה be diluted at 25% wine and 75% water as authoritative in all situations , and leaves the Beraisa in Brachos about it needing to be חי subject to interpretation and limitation.

What should we do today? How much stronger was their wine really compared to ours, and how does that affect the halocho?

It seems logical that a weak 6% alcohol wine certainly does not require diluting, but what about a strong wine with 14% alcohol?

Even if their wine contained as much as 28% alcohol, more like our whiskies, 14% should then surely require at least 50% dilution?

Is it even possible to have wine that is 56% alcohol?  Does it depend only on alcohol percentage but also on age?

and who would really want to ruin a good merlot by diluting it?