Decree when the reason no longer applies

Tosfos (Daf Yomi: Gittin 18a) asks: One of the reasons mentioned for the decree that the date should be recorded on a get is because perhaps the husband will want to save his niece from capital punishment if she committed adultery. Nowadays, Tosfos asks, when we do not execute anyone, why is there still a necessity to write the date in the get?

The Avnei Neizer (E”H: 188) cites a challenge to Tosfos’ question: Although the reason may not be applicable, the sages’ decree should still apply unless a greater Beis Din comes and nullifies it!

He answers that Tosfos understood that the initial decree was only established in a time and a place where they administered capital punishment. Accordingly, if nowadays, it is universal that we do not execute anyone, we are not nullifying the decree; rather, the enactment was never instituted for such cases. This is why it is not necessary for another Beis Din to annul the initial decree.

This would be comparable to that which Tosfos in Beitzah (6a) states: Tosfos writes that a matter that was only prohibited because of a specific concern will be permitted when the concern no longer exists. This principle justifies why we do not have to be concerned for water that was exposed at night and one is allowed to drink from it because in modern times snakes are not frequent in our homes.

The Gemora (Beitzah 30a) cites a Mishna that states that one is not allowed to clap or dance on Shabbos or Yom Tov. Rashi explains that the reason that one is prohibited from performing any of these actions is because they can lead to one fixing musical instruments. Tosfos states that this prohibition only applied in those days when they were experts in fashioning musical instruments. Presently, however, the decree does not apply, because we do not know how to fashion these instruments.

The Rema (O.C. 339:3) rules in accordance with Tosfos. Teshuvos HaRema (125) writes that there was an incident where a marriage occurred on Friday night and the people were not concerned that the groom would write the kesuvah, marriage contract on Shabbos. The reason for this permit was because it is not common in our times for the groom to write his own kesuvah.

Rav Shlomo Zalman Auerbach zt”l poses an interesting question. The halacha is that presently we do not have a legally qualified reshus harabim and for this reason one would be permitted to walk in a public thoroughfare on Shabbos while wearing various ornaments. According to this ruling, then, why are we still forbidden to blow shofar, shake a lulav and read the Megillah. Regarding these mitzvos there is a concern that one may come to carry the shofar, lulav or Megillah in the reshus harabim. Yet, the halachah is that our public thoroughfares are not deemed to be a legal reshus harabim, so we should no longer have these concerns.

Reb Shlomo Zalman also questions the opinion of the Raavad who maintains that muktzah is forbidden on account of a rabbinical decree that one should not come to carry into a reshus harabim. Why should this decree still apply when there is no longer a legally qualified reshus harabim?

Rav Shlomo Zalman explains that Tosfos is only referring to musical instruments. In previous times, everyone was capable of playing and repairing musical instruments. For this reason there was a decree prohibiting clapping and dancing. In our times, however, only a minority of people is capable of fixing musical instruments and because it is uncommon for people to fix musical instruments, there is no necessity for the decree against clapping and dancing.

Rabbah (Beitzah 5a) maintained that Rabban Yochanan Ben Zakkai rescinded the prohibition against accepting witnesses after the offering of the afternoon tamid sacrifice, and subsequently an egg that was laid on the first day of Rosh HaShanah was permitted to be eaten on the second day. Rav Yosef challenged Rabbah’s ruling because if the Chachamim assembled to render a ruling, they would need to reassemble to revoke their ruling. Rav Yosef added that one could not say that Rabban Yochanan Ben Zakkai convened with his colleagues to permit one to eat the egg, because their decision was only to accept the testimony after the offering of the afternoon tamid sacrifice, but they never took a vote on permitting the egg to be eaten.

Tosfos HaRosh in Avodah Zara (2a) rules that one is permitted to conduct business with gentiles during their holiday season as initially this was prohibited because gentiles in the past worshipped idols and now that gentiles do not worship idols, the decree is irrelevant.

Tosfos in Brachos (53b) writes that people are not scrupulous regarding mayim acharonim, washing the hands at the end of a meal, because we no longer have melach sedomis, salt from Sodom. Tosfos notes that although the practice of washing mayim achronmim was instituted by an assembly of a Bais Din, this institution was not unanimously accepted and thus this institution is not categorized as a ruling that is irrevocable unless a Bais Din reassembles and rescinds the ruling.

Reb Shlomo Kluger in Elef Lecho Shlomo (116) rules that one is permitted to learn by candlelight on Shabbos and we are not concerned that he may come to move the wick which will cause the fire to burn brighter, thus violating a biblical prohibition, because one does not need to move the wick of our present-day candles.

Teshuvos HaRosh (klal 2:8) rules that one is permitted to tie strings of linen on a four-cornered garment that is made from linen to fulfill the mitzvah of tzitzis and we are not concerned that one might tie strings of wool to the garment. The reason for this ruling is because all know that techeiles, a blue-dyed wool used for tzitzis, is not prevalent, thus there is no permit to tie strings of wool to a linen garment.

Teshuvos HaRosh writes that if is common knowledge why a decree was instituted and the rationale no longer applies, then the decree is considered irrelevant. Teshuvos HaRosh draws a contrast of this supposition to the case in our Gemora regarding the egg that was laid on the first day of Rosh HaShanah, because some people are not aware whey the egg was initially prohibited, nor do they understand why the reason to prohibit no longer applies.

Shearim Mitzuyanim B’Halachah rules that if necessary, one is permitted to take medicine on Shabbos. Taking medicine on Shabbos was initially forbidden as there was a concern that one would violate the prohibition of grinding. Now that medicine is prepared by the manufacturer and most people are not even aware of the process involved in manufacturing the medicine, there is no longer a concern that one who wishes to take medicine will violate the Shabbos prohibition of grinding herbs or spices.

[END]

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Daf Yomi - Taanis 26 - Eating Prior to Mussaf

It emerges from the Gemora that Rabbi Yehuda maintains that there will never be the Priestly Blessing by Mincha or Ne’ilah; only by Shacharis or Mussaf. This is true even on Yom Kippur. The reason given is because there is a concern that the kohen might get drunk and he is prohibited from reciting the Blessing in that state. There is generally no concern for drunkenness in the morning before Shacharis or Mussaf. Since Mincha and Ne’ilah can be recited the entire day, drunkenness is common and therefore he rules that the Blessing is not recited by those tefillos.

The Rosh states in the name of Rabbeinu Chananel that it is implicit from our Gemora that one is not allowed to eat before Mussaf for otherwise, the kohanim might get drunk before Mussaf as well.

Shulchan Aruch (O”C 286:3) rules that it is permitted to taste fruit or a little bread prior to davening Mussaf. However, eating a meal is prohibited. This would be consistent with the opinion of the Rosh.

The Bach writes that from the language of the Shulchan Aruch, he can infer that there is no prohibition against eating prior to Mussaf; rather, it has become an accepted practice and therefore drunkenness is not so common. According to the Bach, if one would be weak and he appraises that he cannot daven Mussaf without eating, he would be permitted to eat since it is only a custom not to eat.

In the sefer Shoel U’meishiv (3,1:120), he comments on the custom of some communities, where they refrain from eating prior to shaking the lulav on Sukkos. They daven Shacharis and Hallel early in the morning and then they go home to eat and afterwards return to the Shul to daven Mussaf. The Shoel U’meishiv objects to this because they are now eating before Mussaf. He writes, however, that he remembers in the year 5597, in the city of Nikolsburg, he witnessed people davening every Shabbos morning until the Torah reading, going home to eat and afterwards returning to daven Mussaf in the tenth hour of the day. When he asked them to explain this custom, they responded that the Gaon Rav Mordechai Bennet ruled that they had permission to do so since they were weak and desired to eat. This ruling is seemingly based on the Bach who maintains that there is no actual prohibition regarding eating prior to Mussaf, rather it is only a custom and therefore it can be overridden.

There are many communities where it has become the custom for the entire congregation to recite kiddush and eat a little prior to Mussaf. Rav Shmuel Rosenberg, the Av Beis Din in Unsdorf was asked if it was permitted for an individual to separate from the tzibur and daven Mussaf while everyone is making kiddush and only then would he eat. He rules that the custom of not eating prior to reciting Mussaf is an established custom and there have been many G-d fearing Torah scholars who refrain from eating prior to davening Mussaf. We cannot object to someone who wants to be stringent on himself in this regard. Furthermore, since Shulchan Aruch rules that only tasting is permitted and not an eating which will cause satiation, who can be so meticulous to discern the amount in which he is eating.

There is an argument amongst the poskim as to the amount of food that one is permitted to eat prior to davening Mussaf. Some rule that there is no set amount that is prohibited, providing that he is not eating a meal that would require Birchas Hamazon afterwards. According to this, one would be allowed to eat cake and drink coffee before he davens Mussaf. The Mishna Berura’s opinion is that one should not eat cake that measures more than the size of an egg. It is brought in the name of Rav Shlomo Zalman Auerbach that the custom is to be lenient and one has who to rely on if he will eat cake that measures more than the size of an egg prior to davening Mussaf. (Peninei Halacha)

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Daf Yomi - Beitza 30 - When the Reason doesn't Apply (Untzumdritimel)

The Gemara cites a Mishna that states that one is not allowed to clap or dance on Shabbos or Yom Tov. Rashi explains that the reason that one is prohibited from performing any of these actions is because they can lead to one fixing musical instruments. Tosfos states that this prohibition only applied in those days when they were experts in fashioning musical instruments. Presently, however, the decree does not apply, because we do not know how to fashion these instruments.

The Rema (O.C. 339:3) rules in accordance with Tosfos. Teshuvos HaRema (125) writes that there was an incident where a marriage occurred on Friday night and the people were not concerned that the groom would write the kesuvah, marriage contract on Shabbos. The reason for this permit was because it is not common in our times for the groom to write his own kesuvah and proof to this is from our Tosfos.

Rav Shlomo Zalman Auerbach zt”l poses an interesting question. The halacha is that presently we do not have a legally qualified reshus harabim and for this reason one would be permitted to walk in a public thoroughfare on Shabbos while wearing various ornaments. According to this ruling, then, why are we still forbidden to blow shofar, shake a lulav and read the Megillah. Regarding these mitzvos there is a concern that one may come to carry the shofar, lulav or Megillah in the reshus harabim. Yet, the halacha is that our public thoroughfares are not deemed to be a legal reshus harabim, so we should no longer have these concerns.


Reb Shlomo Zalman also questions the opinion of the Raavad who maintains that muktzeh is forbidden on account of a rabbinical decree that one should not come to carry into a reshus harabim. Why should this decree still apply when there is no longer a legally qualified reshus harabim?

Rav Shlomo Zalman explains that Tosfos is only referring to musical instruments. In previous times, everyone was capable of playing and repairing musical instruments. For this reason there was a decree prohibiting clapping and dancing. In our times, however, only a minority of people is capable of fixing musical instruments and because it is uncommon for people to fix musical instruments, there is no necessity for the decree against clapping and dancing.

We discussed these issues previously on Dafnotes on Daf 5. Here is the discussion and the comments.

Daf Yomi - Beitza 5 - Decrees where the reason does not apply any longer

Rabbah maintained that Rabban Yochanan Ben Zakkai rescinded the prohibition against accepting witnesses after the offering of the afternoon tamid sacrifice, and subsequently an egg that was laid on the first day of Rosh HaShanah was permitted to be eaten on the second day. Rav Yosef challenged Rabbah’s ruling because if the Chachamim assembled to render a ruling, they would need to reassemble to revoke their ruling. Rav Yosef added that one could not say that Rabban Yochanan Ben Zakkai convened with his colleagues to permit one to eat the egg, because their decision was only to accept the testimony after the offering of the afternoon tamid sacrifice, but they never took a vote on permitting the egg to be eaten.

Tosfos rules that a matter that was only prohibited for a specific amount of time will be permitted once that time period elapses. Tosfos on Daf 6 writes that a matter that was only prohibited because of a specific concern will be permitted when the concern no longer exists. This principle justifies why we do not have to be concerned for water that was exposed at night and one is allowed to drink from it because in modern times snakes are not frequent in our homes.


Tosfos HaRosh in Avodah Zara (2a) rules that one is permitted to conduct business with gentiles during their holiday season as initially this was prohibited because gentiles in the past worshipped idols and now that gentiles do not worship idols, the decree is irrelevant.


Tosfos in Brachos (53b) writes that people are not scrupulous regarding mayim acharonim , washing the hands at the end of a meal, because we no longer have melach sedomis, salt from Sodom. Tosfos notes that although the practice of washing mayim achronmim was instituted by an assembly of a Bais Din, this institution was not unanimously accepted and thus this institution is not categorized as a ruling that is irrevocable unless a Bais Din reassembles and rescinds the ruling.


Reb Shlomo Kluger in Elef Lecho Shlomo (116) rules that one is permitted to learn by candlelight on Shabbos and we are not concerned that he may come to move the wick which will cause the fire to burn brighter, thus violating a biblical prohibition, because one does not need to move the wick of our present-day candles.


Teshuvos HaRosh (klal 2:8) rules that one is permitted to tie strings of linen on a four-cornered garment that is made from linen to fulfill the mitzvah of tzitzis and we are not concerned that one might tie strings of wool to the garment. The reason for this ruling is because all know that techeiles, a blue-dyed wool used for tzitzis, is not prevalent, thus there is no permit to tie strings of wool to a linen garment.


Teshuvos HaRosh writes that if is common knowledge why a decree was instituted and the rationale no longer applies, then the decree is considered irrelevant. Teshuvos HaRosh draws a contrast of this supposition to the case in our Gemara regarding the egg that was laid on the first day of Rosh HaShanah, because some people are not aware whey the egg was initially prohibited, nor do they understand why the reason to prohibit no longer applies.

Shearim Mitzuyanim B’Halacha rules that if necessary, one is permitted to take medicine on Shabbos. Taking medicine on Shabbos was initially forbidden as there was a concern that one would violate the prohibition of grinding. Now that medicine is prepared by the manufacturer and most people are not even aware of the process involved in manufacturing the medicine, there is no longer a concern that one who wishes to take medicine will violate the Shabbos prohibition of grinding herbs or spices.

Leapa said...
Apropos to gezeiros which may no longer apply, and the Daf.

1. Why is Rosh Hoshana on the first and second day of Tishrei, rather than on the 30th of Elul and the first of Tishrei?

2. Why is Rosh Hoshana 2 days in Israel?

Wed Nov 01, 11:42:07 AM 2006


Avromi said...
Rava on daf 5b on the bottom learns that even after the churban if witnesses came after mincha, both days would be kodosh and the original takanah of both days being one kedusha still remained.
this says the Rosh is the source for E"Y to still have two days now.

Look in Baal Hamaor whi disagrees and actually states that there was a long period of time kept only one day.Milchamos (Ramban) disagrees vehemently.

Wed Nov 01, 04:07:14 PM 2006


Avromi said...
I found this elsewhere and I disagree below:

TheProf said...

The reason Rosh Hashono is on 1 and 2 Tishrei and not 30 Elul and 1 Tishrei like other molei month end Rosh Chodesh is that the 1st day of Rosh Hashono would then actually be the last day of last year. Since the 1st day is actually 1 Tishrei, all of the Yomtov is in the New Year.
The reason it is also 2 days in Israel is because when Chazal originally made Rosh Hashono 2 days, it was during the time of the Bais Hamikdosh and the concept remained after the Churban because of the concept of "ishtaked", people may forget from year to year and observe the Yomtov on the wrong date.

here's why:

I would disagree with the professor since rashi on today's daf explicitly states that when the witnesses didnot come until mincha, both days would be rosh hashana and the first day would be elul 30 and the next day 1 tishrei.

Wed Nov 01, 04:25:43 PM 2006


David said...
These Poskim write that if the reason is not longer valid, the decree is no longer valid. In fact, that is one of the reasons we are allowed to dance and clap our hands on shabbos, even though it was originally outlawed for fear one might come to fashion an instrument - it is becasue we are not skilled enough. I beleive the Rama states this, but he is challenged by the Magen Avraham.

Question: The reason we are prohibited from swimming on Shabbos is b/c we are concerned one may come to make a flotation device. ( Contrary to the popular idea that it has to do with squezzing hair). But how many peopel today can do this? Should we then be permitted to swim on Shabbos

Thu Nov 02, 11:15:46 AM 2006


ben said...
From: Rabbi Doniel Neustadt.

Firstly making a floating device is a lot less complicated than making a musical instrument. Any geshikete fellow can make a makeshift floating device

Secondly, the Rama's shita is very difficult to understand even by music, and we dare not stretch it any more

Thirdly, and most important, the real reason why nowadays we do not swim is because of the old minghag Yisrael not to dip one's entire body on Shabbos even in cold water because of the concern that it may lead to sechitah or carrying; see Mishnah Berurah 326:21.

Thu Nov 02, 06:24:09 PM 2006

Daf Yomi - Beitzah 5 - More on clapping on Shabbos

Reb Dave wrote:
These Poskim write that if the reason is not longer valid, the decree is no longer valid. In fact, that is one of the reasons we are allowed to dance and clap our hands on shabbos, even though it was originally outlawed for fear one might come to fashion an instrument - it is becasue we are not skilled enough. I beleive the Rama states this, but he is challenged by the Magen Avraham.Question: The reason we are prohibited from swimming on Shabbos is b/c we are concerned one may come to make a flotation device. ( Contrary to the popular idea that it has to do with squezzing hair). But how many peopel today can do this? Should we then be permitted to swim on Shabbos

Rabbi Doniel Neustadt responds:
Firstly making a floating device is a lot less complicated than making a musical instrument. Any geshikete fellow can make a makeshift floating deviceSecondly, the Rama's shita is very difficult to understand even by music, and we dare not stretch it any moreThirdly, and most important, the real reason why nowadays we do not swim is because of the old minghag Yisrael not to dip one's entire body on Shabbos even in cold water because of the concern that it may lead to sechitah or carrying; see Mishnah Berurah 326:21.
Rabbi Ephraim Nissenbaum adds:
I only saw the piece of the posting that was e-mailed to me, but the comparison to clapping on Shabbos is a little different. Although the Rema says that we don't know how to fix instruments today, the Biur Halacha says from Elya Rabba that the Rema is not permitting every type of clapping or dancing. He's not clear what he does permit )I didn't see the Elya Rabba) but it sounds like he's saying that Chazal only prohibited certain types of clapping and dancing, and we're not going to prohibit any more since we don't know how to fix the instruments anyway. The Aruch Hashulchan says this clearly, that our clapping and dancing is a different type than they used to do....

joshwaxman said...
consider whether to delete this comment or not, because of silliness or because of the fact that Rema himself says "mutav..."

The Rema in question is in Shulchan Aruch Orach Chaim, 339 seif 3, where he comments:
. הגה: והא דמספקין ומרקדין האידנא ולא מחינן בהו משום דמוטב שיהיו שוגגין וכו'. וי"א דבזמן הזה הכל שרי, דאין אנו בקיאין בעשיית כלי שיר וליכא למגזר שמא יתקן כלי שיר דמלתא דלא שכיח הוא ואפשר שעל זה נהגו * (י) להקל בכל (תוספות סוף פרק המביא כדי יין).

Thus, his first reason is that it is in fact wrong, but not to tell. He then proceeds to offer a rationalization for existing custom. I would say he is not pleased with this development, but his citation of the yesh omrim is part of a trend among Rishonim and Acharonim to rationalize existing custom even while expressing reservations about it. So one should not go out and broadly apply a principle which is applied with extreme difficultly and duress even where it was applied.

Note that in reference to the question, in the first seif the Mechaber brings down the prohibition of swimming, and the Rema does NOT offer the out that the questioner offered - because he does not really hold that it is a strongly valid reason.

Fri Nov 03, 02:25:39 PM 2006


Thinking Man said...
Everyone is ignoring the elephant in the room: If the reason doesn't apply, why are we still doing it? We would riddicule some African bushman tribe that will not eat meat today b/c someone once died from food poisining two thousand yers ago - are we not doing the exact same thing, all lomdishe rationales aside? " Zoo hee koshiah sh'ain alav teshuvah". Truly, it makes no sense.

Sun Nov 05, 11:03:03 AM 2006

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