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Determining Factors in Reaching a Psak Halaka – Gefet #9

How do we paskin halacha? Are there different levels of halacha: a popular level meant for the masses and an aristocratic level meant only for people who ask? When reality changes does the halacha change with it? We will discuss these questions through the words of Rashi and Tosfot on today’s daf.

 

The mishna on daf 29 discusses with the prohibition of measuring on yom tov and describes in what way it is still possible to measure on yom tov and shabbat:

讗讜诪专 讗讚诐 诇讞讘专讜: 诪诇讗 诇讬 讻诇讬 讝讛, 讗讘诇 诇讗 讘诪讚讛. 专讘讬 讬讛讜讚讛 讗讜诪专: 讗诐 讛讬讛 讻诇讬 砖诇 诪讚讛 – 诇讗 讬诪诇讗谞讜. 诪注砖讛 讘讗讘讗 砖讗讜诇 讘谉 讘讟谞讬转 砖讛讬讛 诪诪诇讗 诪讚讜转讬讜 诪注专讘 讬讜诐 讟讜讘 讜谞讜转谞谉 诇诇拽讜讞讜转 讘讬讜诐 讟讜讘. 讗讘讗 砖讗讜诇 讗讜诪专: 讗祝 讘诪讜注讚 注讜砖讛 讻谉, 诪驻谞讬 讘专讜专讬 讛诪讚讜转. 讜讞讻诪讬诐 讗讜诪专讬诐: 讗祝 讘讞讜诇 注讜砖讛 讻谉, 诪驻谞讬 诪爪讜讬 讛诪讚讜转.

Rashi on the continuation of the sugiya explains the reason for the takkana and writes in 讚”讛 “诇讗 讬诪讚讜讚”:聽

讗驻讬诇讜 诇讬转谉 诇讘讛诪转讜, 砖谞专讗讛 讻诪讜讚讚 诇诪讻讜专.

This means that according to Rashi, the reason for the rabbis鈥 takkna is that measuring gives the impression of doing business, which is prohibited on yom tov and shabbat. At the end of Massechet Shabbat there is a parallel discussion which deals with the prohibition of measuring on shabbtaot and yamim tovim, and the heter where the rabbis allowed this and other forbidden actions to be done when the purpose is for a mitzvah. There, Tosfot clarify that the rabbis allowed forbidden actions 鈥溩炞┳曌 诪爪讜讜讛鈥 only when the prohibition is not of a serious nature, like measuring where the reason for the takkana is 鈥溩⒆曌懽撟欁 讚讞讜诇鈥:

讙讘讬 诪讚讬讚讛 讚讛转诐 诇讗 讛讜讬 讗讬住讜专 讻诇 讻讱 讗诇讗 诪砖讜诐 讚讛讜讬 讻注讜讘讚讗 讚讞讜诇

It seems that Rashi and Tosfot argue as to the reason for the prohibition against measuring: is it because of the impression of doing business or because of 注讜讘讚讬谉 讚讞讜诇? This argument can have many practical implications regarding the question of whether measuring done in the home – like measuring done in the kitchen, or even taking one鈥檚 temperature on shabbat, and the like, is included in the takkana of the prohibition, or whether it is allowed (whoever would like to look into this further can look in 讗讙专讜转 诪砖讛 注诇 讗讜”讞 讞”讗 转砖讜讘讛 拽讻讞).

Further on in the sugiya, the gemara discusses a statement of Rav who allowed a woman to measure flour on yom tov before she kneaded and made the loaf of challah for the holiday:

讗诪专 专讘 讬专诪讬讛 讘专 讗讘讗 讗诪专 专讘: 诪讜讚讚转 讗砖讛 拽诪讞 讘讬讜诐 讟讜讘 讜谞讜转谞转 诇转讜讱 注讬住转讛, 讻讚讬 砖转讟讜诇 讞诇讛 讘注讬谉 讬驻讛. 讜砖诪讜讗诇 讗诪专: 讗住讜专. 讜讛讗 转谞讗 讚讘讬 砖诪讜讗诇 诪讜转专! – 讗诪专 讗讘讬讬: 讛砖转讗 讚讗诪专 砖诪讜讗诇 讗住讜专, 讜转谞讗 讚讘讬 砖诪讜讗诇 诪讜转专, 砖诪讜讗诇 讛诇讻讛 诇诪注砖讛 讗转讗 诇讗砖诪讜注讬谞谉.

The reason brought by Rav for the heter is: “讻讚讬 砖转讬讟讜诇 讘注讬谉 讬驻讛”, and Rashi explains:

砖讬注讜专 讞诇讛 讗讞讚 诪注砖专讬诐 讜讗专讘注讛 诇讻讛谉, 讜讻砖讗讬谞讛 讬讜讚注转 诪讚转 注讬住转讛 – 讛讬讗 诪拽诪爪转 讜讗讜诪专转 讗讬谉 讻讗谉 讻诇 讻讱, 讗讘诇 讻砖讬讜讚注转 诪讚转 注讬住转讛 – 讬讜讚注转 诪讛 转驻专讬砖, 讜注讬谞讛 讬驻讛 讘讛.

This means that since the woman needs to separate challah from the loaf, and the amount to be separated is 1/24 – we are worried that if we don鈥檛 allow her to measure, she will separate for the cohen stingily. Therefore the halacha allows her to measure so that she can know the exact amount to separate 讘注讬谉 讟讜讘讛.聽

In the context of Rav鈥檚 heter, the sugiya brings a discussion as to what is the opinion of Shmuel: at the beginning it determines that Shmuel argues and forbids this type of measuring, however it immediately quotes a source in the name of “转谞讗 讚讘讬 砖诪讜讗诇” which explicitly says that Shmuel allows a woman to measure flour used to make challah on the holiday, just like Rav. Rashi helps us to understand what exactly is the source that the sugiya quotes, and in 讚”讛 “转谞讗 讚讘讬 砖诪讜讗诇”, writes that Shmuel had a sort of Tosefta book where he organized different texts that he received from tannaim who preceded him. We do not have this book today, and all we have today is the Tosefta that is attributed to Rabbi Chiyya and Rabbi Oshaya, but Rashi鈥檚 words remind us that much of the Torah of earlier generations has disappeared with time – without the technology of print and modern ways to spread material. This is an opportunity to thank Hashem that we were born into a world where it is very simple to preserve Torah and chiddushim.聽

In order to solve the contradiction between Shmuel鈥檚 words and what is written in the book that he put together, the sugiya suggests: “砖诪讜讗诇 讛诇讻讛 诇诪注砖讛 讗转讗 诇讗砖诪讜注讬谞谉”. Rashi explains the 讗讜拽讬诪转讗 of the sugiya:

讜讛讜讗 砖谞讛 讘诪砖谞转讜 诪讜转专, 砖诪讜讗诇 讘砖诪注转讬讛 讚讗诪专 讗住讜专 – 讛诇讻讛 诇诪注砖讛 讗转讗 诇讗砖诪讜注讬谞谉 砖讛讘讗 诇砖讗讜诇 讛诇讻讛 诇注砖讜转 诪注砖讛 诪讜专讬谉 诇讜 讗住讜专, 讜讗讬 讞讝讬谞谉 讗讬谞讬砖 讚注讘讬讚 – 诇讗 诪讞讬谞谉 讘讬讚讬讛, 讚讛诇讻讛 讚诪讜转专 讜讗讬谉 诪讜专讬谉 讻谉.

Rashi explains that in the halachic world of Shmuel, there is a difference in this halacha between someone who asks and someone who doesn’t ask. In his statement, Shmuel defined the halacha for those who ask how they should act, while in the 住驻专 讛转谞讗讬诐 that he collected, the halacha is defined for people who don鈥檛 ask. There he determines that when we see someone who is acting against the halacha and measures the dough for the loaf on yom tov, we don鈥檛 need to object and make a comment. From a conceptual perspective, the structure which is suggested here is fascinating and invites further thought about what is halacha? To what extent does it have defined stratification? To what extent am I responsible for others鈥 keeping of halacha?

For the purposes of Gefet, we will move on to see the discussion brought in Tosfot on the sugiya. Tosfot opens by quoting Rashi, and immediately after brings the explanation of the 讘讛鈥澴 of the 讗讜拽讬诪转讗 of the sugiya:

诪讬讛讜 讘讛”讙 驻讬专砖 讜砖诪讜讗诇 讛诇讻讛 诇诪注砖讛 讗转讗 诇讗砖诪讜注讬谞谉 讜驻诇讬讙 讗讘专讬讬转讗 讜驻诇讬讙 讗专讘

The 讘讛”讙 argues with Rashi鈥檚 explanation, and so disagrees about the strange structure that he suggested – that the halacha has different levels and Shmuel鈥檚 words in the statement (which are at odds with Rav) are his real opinion, while in his written source he only brought the opinion of the tannaim who argue, yet understands that the halacha goes like them and not like his opinion. In the 讘讛”讙鈥檚 alternative explanation for the progression of the sugiya, he organizes Shmuel鈥檚 opinion in a systematic way, and gives us an opening into understanding the way we determine the halacha in arguments between Rav and Shmuel. Tosfot continue:

讜讬砖 砖驻讜住拽讬谉 讻砖诪讜讗诇 讜讗祝 注诇 讙讘 讚讛诇讻讛 讻专讘 讘讗住讜专讬 诪”诪 诪讚讗诪专 住转诪讗 讚讛砖”住 砖诪讜讗诇 讛诇讻讛 诇诪注砖讛 讗转讗 诇讗砖诪讜注讬谞谉 诪砖诪注 讚讛诇讻讛 讻讜转讬讛 讜讬砖 驻讜住拽讬谉 讻专讘 诪砖讜诐 讚讛诇讻讛 讻专讘 讘讗住讜专讬 讜讻”砖 讛讻讗 讚讛讗 转谞讗 [讚讘讬] 砖诪讜讗诇 讻讜转讬讛 讚专讘

转讜住驻讜转 诪谞讬讞 讻讚讘专 驻砖讜讟 砖讻讗砖专 讬砖 诪讞诇讜拽转 专讘 讜砖诪讜讗诇 讘砖”住: 讗诐 讛谞讬讚讜谉 讛讜讗 “讘讗讬住讜专讬” 讛诇讻讛 讻专讘 讜讗诐 讛谞讬讚讜谉 讛讜讗 “讘诪诪讜谞讜转” 讛诇讻讛 讻砖诪讜讗诇. 讗爪诇谞讜 诪讘讬讗 转讜住驻讜转 诪讞诇讜拽转 讻讬爪讚 讬砖 诇讛讻专讬注 讘诪拽专讛 讝讛: 讻讬讜讜谉 诪爪讚 讗讞讚 讝讛 诪拽专讛 拽诇讗住讬 讛注讜住拽 讘讗讬住讜专讬诐: 讛诇讻讜转 砖讘转 讜讬讜诐 讟讜讘, 讗讱 诪爪讚 砖谞讬 讗诐 谞讘讗专 讗转 讛诪砖驻讟 讛讞讜转诐 讗转 讛住讜讙讬讛: “砖诪讜讗诇 讛诇讻讛 诇诪注砖讛 讗转讗 诇讗砖诪讜注讬谞谉” 讻讛讻专注讛 砖诇 讛讙诪专讗 砖讻讗谉 讛诇讻讛 讻砖诪讜讗诇聽 – 讛专讬 砖讬砖 诇讛讻专讬注 讻讗谉 讘讗讜驻谉 讞专讬讙 讻砖诪讜讗诇 (讻诪讜 讘砖诇讜砖讛 诪拽专讬诐 谞讜住驻讬诐 讛诪讜讝讻专讬诐 讘诪驻讜专砖 讘讙诪专讗 砖讛诐 讗讬住讜专讬诐 讛诐 讛诇讻讛 讻砖诪讜讗诇).聽 讗讙讘 讚讬讜谉 讝讛 讛讘讬讗 转讜住驻讜转 讘讬讗讜专 谞讜住祝 诇诪砖驻讟 讛讞讜转诐 讗转 讛住讜讙讬讛. 讻诇讜诪专:

Tosfot assume that when there is an argument between Rav and Shmuel in Shas: if the topic of the argument is in “讗讬住讜专讬”, the halacha is like Rav, but if it is in monetary issues, the halacha goes like Shmuel. In our sugiya, Tosfot bring an argument as to how we should decide in this case: on the one hand it is a classic case of 讗讬住讜专讬诐: hilchot shabbat and yom tov, but on the other hand, if we understand the concluding line of the sugiya: “砖诪讜讗诇 讛诇讻讛 诇诪注砖讛 讗转讗 诇讗砖诪讜注讬谞谉” as the gemara deciding that the halacha is indeed like Shmuel – this would be an exception case (just like three other cases of 讗讬住讜专讬诐 that are explicitly mentioned in the gemara where the halacha is like Shmuel). By the way of this discussion, Tosfot bring a different understanding for the concluding line of the sugiya. Meaning:

For Rashi: the two opinions brought by Shmuel are connected to the difference between the halacha for the masses and the halacha for people who ask.

For the 讘讛”讙: the two opinions brought by Shmuel are connected to the difference between Shmuel鈥檚 opinion and his recognition that the halacha actually goes like Rav.

For Tosfot:聽 the two opinions brought by Shmuel are connected to the difference within Shmuel鈥檚 own position: in once source he thought that it is forbidden while in another source he thought that it is allowed, and at the end of the day determined that the halacha is like Rav, that it is allowed.聽

The principle upon which Tosfot鈥檚 words rest, that the halacha is like Rav in 讗讬住讜专讬诐 and like Shmuel in monetary matters, is brought already in Shas in two places (Masechet Bechorot daf 49b and Masechet Niddah daf 24b). We can find two explanations for this among the poskim:

  1. The Rosh, in his comentary on Masechet Bava Kamma聽 (驻专拽 讚’ 住讬诪谉 讚) writes:

讻谉 讚注转讬 谞讜讟讛 讚诪讗讬讝讛 讟注诐 注砖讜 讞讻诪讬 讛讙诪专讗 讻诇诇 讝讛 诇驻住讜拽 讛诇讻讛 讻砖诪讜讗诇 讘讚讬谞讬 讜讻专讘 讘讗讬住讜专讬 讘讻诇 诪拽讜诐. 诇驻讬 砖讬讚注讜 砖砖诪讜讗诇 讛讬讛 专讙讬诇 转诪讬讚 诇驻住讜拽 讚讬谞讬谉 讜诇讻讱 讛讬讛 诪讚拽讚拽 讘讛谉 讜讬讜专讚 诇注讜诪拽谉 讜诪砖讻讬诇 注诇 讻诇 讚讘专 讗诪转. 讜讻谉 专讘 讛讬讛 专讙讬诇 诇讚拽讚拽 讘讛讜专讗转 讗讬住讜专 讜讛讬转专 诇讻讱 住诪讻讜 注诇 讛讜专讗讜转讬讜 诇注谞讬谞讬 讗讬住讜专 讜讛讬转专.

Meaning, according to the Rosh, the reason for this rule is connected to the expertise of these amoraim in the subject matter: Rav was used to paskining in 讗讬住讜专讬诐, and so naturally gained expertise in this area, while Shmuel was used to paskining in monetary matters, and so naturally gained expertise in this area specifically.聽

  1. Rav Yair Bacharach wrote a different possible explanation in (砖讜”转 讞讜讜转 讬讗讬专 (住讬诪谉 爪”讚:

讜诇讜诇讬 讚诪讬住转驻讬谞讗 讗诪讬谞讗 讻讬 砖诪讜讗诇 诇专讜讘 讞拽讬专转讜 讜讬讚讬注转讜 讘讗爪讟讙谞讬谞讜转 讜专驻讜讗讜转 诇讗 讛讬讛 讘拽讬 讗祝 讻讬 讗诪专 砖诇讗 谞住转讻诇 讘讗讬爪讟讙谞讬谞讜转 专拽 讻砖讛讜诇讱 诇注砖讬讬转 爪专讻讬诐 诪”诪 讛讬转讛 讚注转讜 诪砖讜讟讟讜转 注讚 讻讬 讛讬讜 谞讛讬专讬谉 诇讜 砖讘讬诇讬谉 讚专拽讬注 讜讻讜’ 讜讛讬讛 诪讜驻诇讙 讘注讬讜谉 讜砖讬拽讜诇 讛讚注转 砖讛讜讗 讻讞 讛诪爪讬讬专 讜讛诪讚诪讛 讜讛诪驻专讬讚 讘讬谉 讚讘专 诇讚讘专 讘住讘专讗 讻诇 讚讛讜 讜诪爪讚 讝讛 讚讬谞讬 诪诪讜谞讜转 讛诐 诪拽爪讜注 讙讚讜诇 讚讬砖 讞讚砖讬诐 诇讘拽专讬诐 讜诪注讟 诪讝注讬专 谞诪爪讗 讘诪砖谞讛 讜讘专讬讬转讗 讜爪专讬讱 砖讬拽讜诇 讛讚注转 拽讜诇注 讗诇 讛砖注专讛 讜诇讗 讬讞讟讬讗…聽 讜专讘 讛讬讛 诪诇讗 讘专讻转 讛’ 讘诪砖谞讬讜转 讜讘专讬讬转讜转 注讚 砖讗诪专讜 注诇讬讜 专讘 转谞讗 讜驻诇讬讙.

Rav Bacharach suggests that the difference is not connected to the area of expertise of each of these amoraim, rather to the characteristics and special talents of each of them, and the different skills needed for each of the different areas in the Torah: For monetary matters, you need logic and the ability to conjecture, as each case is different, and this was the special skill of Shmuel. For 讗讬住讜专讬诐, however, you mainly need yirat shamayim and vast expertise in halacha, and that was Rav鈥檚 special skill.聽

We will conclude with the end of Tosfots鈥 words, which give us an interesting additional look into the way that halacha develops:

讜讗讜诪专 讛专”专 砖诪讜讗诇 诪讗讬讬讘专”讗 讚讗驻讬’ 诇诪”讚 讚讛诇讻讛 讻专讘 诪”诪 讗住讜专 诇谞讜 讘讝诪谉 讛讝讛 诇诪讚讜讚 诪砖讜诐 诇讬讟讜诇 讞诇讛 讘注讬谉 讬驻讛 讚讚讜拽讗 讘讬诪讬讛谉 砖讛讬讜 诪驻专讬砖讬谉 讞诇讛 讗讞转 诪讻”讚 讜谞讜转谞讬谉 诇讻讛谉 砖讬讬讱 诇讜诪专 讚诪讜转专 诪砖讜诐 注讬谉 讬驻讛 讗讘诇 讗谞讜 砖讗讬谉 诪驻专讬砖讬谉 讻讬 讗诐 诪注讟 讗驻讬诇讜 诪注讬住讛 诪专讜讘讛 讜讗讜转讜 诪注讟 谞诪讬 讗讬谞讜 谞讗讻诇 讗诇讗 谞砖专祝 讗讬谉 诇诪讚讜讚 讚诇讗 砖讬讬讻讗 住讘专讗 讚拽讗诪专 讛讻讗 讻讚讬 砖转讟讜诇 讞诇讛 讘注讬谉 讬驻讛 讗诇讗 讬砖 诇谞讜 诇砖注专 诪讗讜诪讚 砖转讛讬讛 讘专讬讜讞 讻砖讬注讜专 诪砖讜诐 讛讘专讻讛

Rav Shmuel of 脡vreux, one of the Ba鈥檃lei Ha鈥橳osafot, explains that since the reason for the heter, in Rav鈥檚 opinion, is so that it will be possible to separate challah in the proper way – this heter doesn鈥檛 apply today when we no longer separate challah for the cohen, rather only separate it symbolically, and burn the tahor challah, as the laws of priestly gifts do not apply today. This qualification opens up the question of to what extent 讗讬住讜专讬诐 讜讛讬转专讬诐 stay relevant and in practice even when the reason for them no longer applies.聽

Translated by Daphna Ansel-Nizan

 

Rabbanit Yael Shimoni

Rabbanit Shimoni has learned at Migdal Oz, Matan, and the Susi Bradfield Women鈥檚 Institute for Halakhic Leadership at Midreshet Lindenbaum. She holds a BFA from Bezalel Academy of Arts and Design and a BEd in Torah Shebe鈥檃l Peh and Jewish Thought from Herzog College. She is currently studying towards an MA in Jewish Thought Education at Herzog College. Rabbanit Shimoni taught gemara and halakha at Pelech High School and served as a ramit for shana bet at Migdal Oz. She directs Meshivat Nefesh, the online responsa program of the rabbaniyot of Beit Hillel. She is also a plastic artist and member of 鈥淎 Studio of Her Own.
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