Personal Judaism

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Personal stringencies in Jewish practice are private matters but they can also provide insight into the nature of Jewish law. In an undated responsum, R. Moshe Feinstein answered a question about the complex topic of eruvin with a brief musing on the effect of halakhic decision-making on contemporary religious life.

The Shulchan Arukh (Orach Chaim 362:10) quotes the Rambam as ruling that “doorpost” eruvin, the common string connecting poles, are ineffective unless the majority of the wall is solid. According to this position of the Rambam, nearly all contemporary eruvin are invalid because they utilize the “doorpost” model across most, maybe even all, the perimeter of the eruv. While the broad consensus of halakhic authorities rejects this ruling of the Rambam, some people adopt the stringency of refusing to utilize eruvin in deference to the Rambam.

An unidentified questioner asked R. Moshe Feinstein whether someone who followed this position of the Rambam may change his practice and adopt the mainstream position allowing “doorpost” eruvin. I imagine a recently married yeshiva student who easily refrained from using an eruv while single but now, with wife and baby in tow, finds rejecting the eruv overly burdensome. R. Feinstein (Iggeros Moshe, OC 2:83 – link) responded that it depends why he acted strictly. If it was because he followed a ruling that the Rambam was correct, then he may not change his practice. While no one in our generation, R. Feinstein stated, has the authority to rule either according to or against the Rambam in this debate, he may come from a community that has a longstanding ruling. Someone who comes from a community that follows the Rambam on this issue is as if he received a personal halakhic ruling according to the Rambam and he may not change his practice.

This last step is very important. Why does it matter whether he received a halakhic ruling? If the Rambam’s position is a stringency for most people, it should also be for someone who received a halakhic ruling on the subject. R. Feinstein directs readers to the Chayei Adam without specifying where. I believe he means ch. 127 par. 10, where the Chayei Adam follows the lead of the Peri Chadash (Orach Chaim 567) in a fascinating discussion of the nature of custom and halakhah. A custom, a minhag, retains the force of a vow. While this means that a personal custom is binding, it may be undone through the process of hataras nedarim, nullifying the vow.

A halakhic ruling, however, is not a matter of a vow. By asking a halakhic question, you are not merely implicitly accepting to follow a rabbi’s guidance on the matter you bring before him. When a rabbi rules for a questioner on an halakhic matter, his ruling shapes the questioner’s Torah obligation, creating a new halakhic reality for him. Such is the power of the halakhic decisor. The rabbi not only teaches the law but creates it. According to this approach, halakhah can be different for different people. For one person, the Rambam’s view is merely a stringency. For another, it is Torah law.

This personal nature of Jewish law is at once jarring and reassuring. The discovery that halakhah is not a static body of law, an objective corpus of knowledge that we need only access, but a vibrant tree with many branches can be misleading. If there are multiple options, can I choose the law I want just I like choose the pizza topping that fits my taste and mood? R. Feinstein tells us that we may not. We are bound by the religion of our ancestors, the practices of our birthplaces and the guidance of our teachers. The circumstances of our lives, the experiences that formed us and the people who molded us, determine the details of our religious lives.

About Gil Student

Rabbi Gil Student is the Editor of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student has served two terms on the Executive Committee of the Rabbinical Council of America and currently serves as the Director of the Halacha Commission of the Rabbinical Alliance of America. He serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

140 comments

  1. Great post. My own view, is that if you want to accept R. Moshe’s view, that’s fine. It’s awfully post-modern, and effectively denies that there is any fact of the matter in the Halakhic realm. By his logic, enough rabbis could eventually neutralize all Halakhic obligations. Of course, none of that renders his view internally inconsistent, and it’s thus a viable position. But I hardly think that that makes it a particularly strong position.

  2. Do you agree with this approach?

    The Rambam certainly did not…

  3. “According to this position of the Rambam, nearly all contemporary eruvin are invalid because they utilize the “doorpost” model across most, maybe even all, the perimeter of the eruv”. This is simply untrue – most contemporary urban eruvin have a small minority of their perimeter enclosed by tzuros hapesach, and the rest made up of fences and solid wall. As such, they would be kosher according to the Rambam.

  4. I should add that according to the Minchas Yehudah quoted in the Kaf Hachaim (362:92), once the area to be enclosed has ‘omed merubah’ due to the buildings surrounding it, even were one to enclose a specific area with only tzuros hapesach, this would still work according to the Rambam. To my knowledge, there is nobody who argues on this.

  5. I think it’s wrong to call this R. Moshe’s view. It’s the Pri Chadash’s that the Chayei Adam and R. Moshe follow. Does anyone disagree?

    E Fink: What do you mean that Rambam disagrees?

  6. interesting. does the structure of the question make a difference (e.g. if one just asks for an opinion vs. a psak)? what if one asks someone without smicha? with a smicha from an individual or institution they don’t know? (real ? is where does the binding authority suggested flow from when real smicha no longer exists?)
    KT

  7. This is consistent with modern Charedi hashkafa; what is the view from Modern Orthodox thinkers (e.g. RAL)?

  8. “It’s the Pri Chadash’s that the Chayei Adam and R. Moshe follow. Does anyone disagree?”

    Then are we going to stop claiming that if you don’t drink only chalav yisrael then you’re doing so because of R. Moshe, as opposed to the Peri Chadash, R. Henkin, and all the many other poskim who were matir?

    Does anyone disagree? If the Peri Chadash was mechadesh, then yes, obviously many disagree. He only lived 300 years ago.

  9. R. Moshe does not factor into the reason I consume Chalav Akum https://www.torahmusings.com/2005/05/halav-yisrael/

    But more importantly, who disagrees with the Pri Chadash, Chayei Adam and R. Moshe? That particular portion of the Pri Chadahs, his lengthy analysis of minhagim, is very influential in halakhah. It’s not like he was paskening against the Shulchan Arukh (like he did with Chalav Yisrael).

  10. I higlhy doubt that if R. Moshe (and other Litvish American poskim) had assered it, and all you had to go on was a Pri Chadash that has not attracted much support in recent centuries, you would be drinking chalav akum, however convincing you find his reasoning.

  11. I believe there is nothing in this post that was not contained in the much earlier discussion of “machloket”. As such, R’ Moshe’s approach works lekula just as much as lechumra: some of us might be required to follow the Rambam’s chumra on Eruv, but all of us are entitled and expected to follow Beit Hillel’s kulot against Beit Shammai, for example.

  12. Do you really think that R. Soloveitchik relied on R. Moshe’s pesak? I don’t.

  13. Could be. But I don’t think that anyone would be drinking chalav stam if Rav Soloveitchik had been the only contemporary authority to follow in the footsteps of the Pri Chadash. Rav Schachter reports in either Nefesh Harav or MiPninei Harav (I forget which) that Rav Soloveitchik ate non-hechshered ‘American’ cheese. I don’t see the OU following him on that one, and I find it hard to believe that you would be doing so even if you found his reasoning convincing.

  14. The bigger question is what sort of psak binds me. Let’s say I go to a rav for a shaila and I get the impression that he simply doesn’t understand my personal situation, or he just comes out with something that is patently outrageous from a common sense perspective, but can be justified by the strict letter of the law. Am I always bound by this?

  15. “Could be. But I don’t think that anyone would be drinking chalav stam if Rav Soloveitchik had been the only contemporary authority to follow in the footsteps of the Pri Chadash. ”

    Anyone? How about virtually the entire American Modern Orthodox world?

    But more importantly, they also don’t drink it because Rav Soloveitchik was matir (although it would be interesting if he had not, to see if they would not drink it). There has been a halachic tradition, and many many poskim, since the Pri Chodosh (and before him, since his whole thing came about because of what he witnessed in Amsterdam), who were mattir it. It isn’t as if American observant Jews were only drinking CY, or not using dairy at all, before either RMF or RYBS came on the scene.

  16. Because we all know the American MO world follow Rav Soloveitchik’s opinion on every significant halachic question.

  17. It’s awfully post-modern, and effectively denies that there is any fact of the matter in the Halakhic realm.

    Except that any psak of the Talmud Bavli is binding like that of the beis din ha gadol. R. Moshe is not denying that. No one is permitted to pasken against the gemara.

    For that matter, even as to the beis din ha gadol, there is a din of zil kri bei rav.

  18. R’ Gil
    As Rav Moshe himself states (see the following page) [most of] the poskim do not follow the Rambam regarding this inyan.

    Furthermore, the poskim maintain that even if only two mechitzos are omed merubeh al haparutz they would satisfy the shitas haRambam (however, the Bais Shlomo requires three mechitzos). This leaves us with an interesting dichotomy. Most large cities when establishing an eruv make use of the omed merubeh of their batim and usually even have four mechitzos omed merubeh. Hence their eruvin would definitely satisfy the Rambam’s shita. On the other hand, most small cities have houses that are far apart from each other, thus they do not meet the Rambam’s requirement as their mechitzos habatim are not omed merubeh al haparutz. There is a similar dichotomy in Rav Shlomo Dovid Kahane’s (Divrei Malkiel’s) argument that small cities meet the criterion of mefulash u’mechavanim m’shaar l’shaar more easily than large cities.

    Furthermore, as “J” mentioned, even if we would erect the tzuras hapesachim independently (without utilizing any batim) around the perimeter of an area that consists of mechitzos which are omed merubeh, the eruv is sufficient according to the Rambam. There is no doubt that large cities would then satisfy the Rambam’s shita.

    Many people cite this particular shitas haRambam when arguing against large city eruvin without realizing that these eruvin satisfy this requirement of the Rambam [while according to the Reshonim the Rambam does not allow for the criterion of shishim ribo (see this note http://eruvonline.blogspot.com/2009/06/reprinting-of-berlin-edition-of-behag.html#_ftn8 ), he does follow the Chachamim who uphold lo asu rabbim, which is further grounds to allow eruvin in larger cities].

  19. “Because we all know the American MO world follow Rav Soloveitchik’s opinion on every significant halachic question.”

    No, but you said that it’s likely only because RYBS’s psak agreed with others (e.g., Reb Moshe) that non-CY consumption is seen as okay. But there are things which broadly-speaking only RYBS was matir, e.g., teaching Talmud to girls, which were certainly accepted by the American MO.

  20. Yesh l’chalek.

  21. Ye’yasher kochakha to our Rosh Yeshiva R. Student.

    Two caveats:

    1) The Rambam’s position is to only prohibit relying on a tzurat ha’petach if it is *both* wider than 10 cubits *and* the majority of the side bounded by the tzurat ha’petach is empty space. This is based on the superimposition of Rav’s two stringent opinions in Eruvin 11a. There, Rav claims that a tzurat ha’petach fails if wider than 10 cubits, and Rav also claims that a tzurat ha’petach fails to enclose a side which is mostly empty space. Although each of Rav’s individual claims are rejected, Rambam believes that the superimposition of both conditions (wider than 10 cubts and mostly empty space) activates Rav’s position. Mishnah Berurah (OC 362, se’if katan 59) encourages being stringent like Rambam, even though the pure Halakhah is not like him.

    2) I believe the Chayei Adam, in context, is only espousing his principle for purposes of being stringent, not for purposes of being lenient.

    http://www.hebrewbooks.org/pdfpager.aspx?req=49395&st=&pgnum=314

    I believe that this is also RMF’s intention. Thus, our Rosh Yeshiva R. Student’s assertion that “the rabbi not only teaches the law but creates it” is true, but only for purposes of creating stringency.

  22. I wonder about the whole business of asking a shaila. Take eruv, for example. You know that there is a debate about eruv and that there are great rabbis who currently come out on both sides of that debate. And that person believes it’s an important, with respect to his family life as well as with respect to the strength of his local Orthodox community, that families share meals and fellowship on Shabbat. Or that it’s important that parents with young children should both be able to go to shul. Why should you have to be bound by the talmid chacham who happens to be the rabbi of your shul or was your rebbe inj yeshiva, to whom you ask question about halachic things you don’t know?

    Or, to take a perhaps more significant issue which we have discussed here extensively — brain death. I’m certainly no talmid chacham, but I’m very aware of the fact that there are serious halachic authorities on both sides of that issue and, therefore, on the issue of organ donation from a practical standpoint. If my personal deeply held values are that organ donation makes the world a better place and should be encouraged, why should I have to ask a shaila about this?

    One clarification. I could have spoken about “what God wants” rather than personal beliefs and values. But I have yet to read someone use in a discussion “that’s what God wants” when he doesn’t really mean that’s what I think is right. So I decided to cut out the middle man.

  23. J: I still don’t know why you think only R. Moshe was lenient. See, for example, this post quoting R. Henkin: https://www.torahmusings.com/2006/06/chalav-yisrael-ii/

  24. Joseph: There’s a difference between asking a rabbi who shares your values even though he is not your local/yeshiva rabbi and not asking any rabbi. I happen to be against both but only the latter follows from this post.

  25. J: The bigger question is what sort of psak binds me. Let’s say I go to a rav for a shaila and I get the impression that he simply doesn’t understand my personal situation, or he just comes out with something that is patently outrageous from a common sense perspective, but can be justified by the strict letter of the law. Am I always bound by this?

    See this post regarding reversible errors in pesak: https://www.torahmusings.com/2009/11/rabbinic-boundaries/

  26. Is a person truly always bound by his parent’s or community of origin’s approach and can not deviate as an adult? I find this hard to believe simply based on the numbers of people who have left e.g. a chassidic lifestyle that their parents/community of origin followed, along with all manner of stringent practices that are treated within these communities as ikar hadin.

    If someone comes from a family/community that is makpid on chalav yisrael, they can’t be matir neder…or only if they don’t view this as a chumra they’ve taken on? If someone comes from a family/community that is makpid on yashan in chul la’aretz…etc.?

    Don’t we all know many people who’ve changed such practices?

  27. To elaborate on my second caveat earlier at 12:52 p.m., this Chayei Adam is addressing a specific minhag ha-makom stringency: if one lives in a place where the minhag ha-makom is to be strict for a certain position among the poskim (e.g. not to eat Diaspora chadash, even in situations where there is a sfek sfeka to be lenient) despite the fact that the pure Halakhah is lenient, then hatarat nedarim will not work to absolve one who lives in that place of the stringency. RMF is applying the Chayei Adam to say that if his interlocutor was strict for the Rambam (re: tzurat ha’petach) because it is the minhag ha-makom where he lives, then his interlocutor must continue to be strict in accordance with minhag ha-makom, and hatarat nedarim will not work. For such a person, writes RMF, it is *as if* the Halakhah has been paskened to be strict, [in the sense that one must follow the stringencies of minhag ha-makom, pursuant to the fourth chapter of Pesachim (-S. Spira’s interpretation of RMF).] But if the interlocutor was strict for the Rambam simply for the sake of being personally strict (not because of any minhag ha-makom), then hatarat nedarim will be effective to allow the person to be lenient in the future.

    This should help answer the excellent question of R’ cp: If one permanently geographically moves out of the city that observes a certain minhag ha-makom stringency (but where the pure Halakhah is lenient), then one is free to be lenient.

  28. However, I must also note (as I definitely sympathize with R’ Joseph Kaplan’s cogent argument in favor of eruvin) that the thrust of RMF’s responsum is to be lenient. I.e. RMF is saying that there is no minhag ha-makom to be stringent like the Rambam (at least in the city where the interlocutor lives), and therefore the conclusion is to be lenient.

    I wasn’t present when the give-and-take occurred, but I would speculate (in an effort to reconstruct responsa history) that what transpired is that the interlocutor originally presented RMF with two sources: the Chayei Adam (which the interlocutor thought required stringency) and the rule “halakhah ke-divrei ha-mekel be-eruv” in Eruvin 46a (which the interlocutor thought authorized leniency). RMF responded by turning both sources upside down: Chayei Adam only refers to a minhag ha-makom, and Eruvin 46a only refers to the agglomeration of private domains through bread, not necessarily to the enclosure of private domains in the first place. Fortunately, the two errors cancelled each other out to produce a lenient result.

  29. R Gil wrote the following based on a teshuvah of RMF:

    “While no one in our generation, R. Feinstein stated, has the authority to rule either according to or against the Rambam in this debate, he may come from a community that has a longstanding ruling. Someone who comes from a community that follows the Rambam on this issue is as if he received a personal halakhic ruling according to the Rambam and he may not change his practice”

    Yet, how would RMF understand the various rulings of the CI on Hilcos Eruvin, which do not accept the stringencies of the Rambam? R B Simon, in his sefer on Eruvin, defended the views of both RMF and the CI, against the critique of R A Kotler ZL, who wondered what happened to the Shitas HaRambam in their respective views on Eruvin, and proved that RAK’s view , which relied on the Rambam, was not in accordance with the view of Rov Rishonim.

  30. R’ Gil,

    In the Hakdama to the MT the Rambam is pretty clear that asking a rabbi a question does not bind you to their answer. Certainly the way R Yaakov Weinberg understands him.

    Further, there is a contemporary gadol who disagrees and I have read his Teshuva on the matter but he has not given permission to disseminate it. V’hamayvin yavin…

  31. “Tal Benschar on November 10, 2011 at 12:11 pm
    . No one is permitted to pasken against the gemara.

    Do you go to work Dec 23, Dec 24? There are many times where our practice is counter to the gemara.

  32. tal – “No one is permitted to pasken against the gemara”
    except we do it all the time. do you do business with a non-jew before his/her holidays or day of worship…. did rabbis marry off their daughters while they were children in the middle ages (exactly the opposite of the maskana in the gemera)…etc..? do men have to support – earn a living – their wives – and not vice versa?
    halacha evolves – its just more complicated than the simple statement that you provided.

  33. MiMedinat HaYam

    IH — RAL not a good opinion on eruv issues. he personally does not hold the yerushalayim eruv (which everyone (?) approves of), but wont come out publically.

    2. the syrians built an eruv in flatbush that they claim complies with the rambam (wall vs doorpost, etc). see http://www.erub.org

  34. MMhY — thanks, but I was referring to Gil’s penultimate paragraph.

  35. Steve:
    The other issue regarding eruvin that RAK would have argued the Rambam was definitely stringent about would have been the criterion of shishim ribo. However, RAK does not cite the Rambam here and barely discusses the criterion at all (however, he is stringent). RAK does try to argue (following the Mishkenos Yaakov) that the Rambam maintains asu rabbim u’mevatlei mechitzta. However, this is counter to the Rishonim’s understanding of the Rambam (even according to the Rashba as explained by the Bais Ephraim). RMF barely mentions the Rambam regarding these issues. RAK does not mention RMF at all in his teshuvos. The CI maintained like most Rishonim that the Rambam upholds lo asu rabbim. So I am not sure what you are getting at.

    The tendency to be stringent regarding eruivn usually stems from the popularity of the Mishnah Berurah who is machmer regarding shishim ribo. Most people (including rabbanim) do not get further than this criterion. If they would learn through the inyan, they would see that there are many reasons to allow our eruvin. (Even the Mishnah Berurah’s list of Rishonim has been superseded.) People simply don’t realize that most of the objections to eruvin would do away with most of the eruvin of yesteryear, as well. Furthermore, it’s important to note that only regarding shishim ribo is there an issue of baal nefesh yachmir. There is simply no reason to be machmir when mechitzos are being used.

  36. “lineman”, have we met?

  37. R’ Mycroft and R’ Ruvie,

    Ye’yasher kochakhem on your rejoinders to R. Benschar. I think what R. Benschar means to write is that – while Rishonim may elucidate the gemara in ways that are not readily apparent from a quick glance at the sugya (as this the oral tradition the Rishonim were privileged to possess) – Acharonim generally do not. This is the point that emerges from “Paralysis in Contemporary Halakhah” by R. Sperber. The Acharonim are paralyzed when compared to Rishonim.

    As such, working on Dec. 23 and Dec. 24 is authorized by Tosafot in Avodah Zarah 2a (-Rishonim). Marrying off a minor child in a case of economic emergency is authorized by Tosafot in Kiddushin 41a (-Rishonim). Acharonim, on the other hand, would generally not duplicate Tosafot’s feat.

    It seems to me that even today, a husband, in principle, is obligated to support his wife, and a Beth Din would enforce it. It’s just that the ladies volunteer to forgive this right.

  38. Mycroft and Ruvie:

    None of your examples contradict what I wrote:

    1. The halakha of trading with Idolators prior to their holiday is a gezeirah, not a psak. Why it does not apply in our circumstances and not followed today is discussed at length in Tosafos Avodah Zarah 2a.

    2. Kiddushei ketanah is discussed in Kiddushin 41a. The gemara there expressly states that the reason for the prohibition is that the girl is too immature to indicate whether she wishes to marry the man. IOW, the prohibition is not one of kiddushin (the kiddushin are perfectly valid), the prohibition is bein adam lechaveiro — putting the woman in a situation where she will be stuck with a man she does not want. (Probably based on ve’ahavta le reiecha lamocha — see the gemara above which cites this re marrying a woman without seeing her.)

    Tosafos discusses the extreme circumstance where not marrying off the girl will lead to a real risk of spinsterhood (becauase of oppression, the father may lose his money and be unable to provide a dowry). In that situation, you are doing her no favor by not marrying her. So what was done was not a contradiction to the gemara — it was simply a changed circumstance.

    (To make this clearer, I once had a shayloh. My father requested that I wake him whenever he received phone calls from his clients. Although the gemara makes clear that waking one’s parent is consider a lack of kibbud av, in this case his request meant that he considered it a bigger kavod to be awoken for that purpose.)

    3. The obligation to support the wife is one of the chiyuivei kesubah, which can be varied. Furthermore, there is no reason that a wife aannot voluntarily work outside the home to support her husband’s learning, if she values it. This is hardly a “psak” of the gemara.

    So #1 and #2 are merely different circumstances and # 3 is not even a horaah at all.

    I think what R. Benschar means to write is that – while Rishonim may elucidate the gemara in ways that are not readily apparent from a quick glance at the sugya (as this the oral tradition the Rishonim were privileged to possess) – Acharonim generally do not. This is the point that emerges from “Paralysis in Contemporary Halakhah” by R. Sperber. The Acharonim are paralyzed when compared to Rishonim.

    I beg to differ. There are plenty of occassion where Acharonim interpret a gemara. It is true, of course, that Acharonim by and large rely on Rishonim to interpret the gemara, but this is hardly “paralysis” — it simply is a reliance on Masorah.

    Rishonim may elucidate the gemara in ways that are not readily apparent from a quick glance at the sugya (as this the oral tradition the Rishonim were privileged to possess)

    IMO, part of the problem is that people learn gemara in a shallow, historical way without paying attention to the underlying lomdus. What may “at quick glance” appear to be a contradiction to the gemara is simply an elucudation thereof — based on tradition or contradiction with other sugyas.

  39. Thank you and ye’yasher kochakha, R. Benschar. Your points are well taken. Indeed, when I referred to “paralysis”, I meant it in a positive way (i.e. it is a paralysis for us to celebrate), and so I am glad you replaced it with the positive-sounding (and accurate) term “Mesorah”.

  40. Beisrunner on November:
    I doubt it.

  41. “IMO, part of the problem is that people learn gemara in a shallow, historical way without paying attention to the underlying lomdus. What may “at quick glance” appear to be a contradiction to the gemara is simply an elucudation thereof — based on tradition or contradiction with other sugyas.”

    And, the inverse is also true.

  42. ” the syrians built an eruv in flatbush that they claim complies with the rambam”

    I was also told that the eruv in Center City Philadelphia also complies with Rambam. (Maybe that is why it took 267 years to build it.)

  43. tal – i guess a clarification of what : ““No one is permitted to pasken against the gemara”” really means.

    ITS EREV SHABBAT SO BRIEFLY (I AM COOKING AND TIME IS NOT ENOUGH TO FULLY FLESH THIS OUT)

    i can also explain away many of the gemera’s final halahik conclusions which we do not follow – but that is not what you said – i assume you meant the gemera’s halachik conclusions are binding and no one is permitted to pasken against it – which would mean that we follow all conclusions – on halacha – in the gemera – but we obviously do not. reinterpreting gemeras to explain away common practice that do not match up is a time honored jewish religious custom [how else can you have women learning torah especially gemera and torah she bel peh?]

    for example: the trumat hadeshen (late rishon or early acaharon?) on the custom of davening maariv (not only shema) before nightfall in france and germany during late middle ages – even though its against the halacha in the gemera (trumat hadeshen on SA, OH, 235:1). Not only does he condone this practice that has no basis but tells others who know its wrong not to separate themselves fro those that do – daven with them.

    check out mayim achronim – tosafits justifies the practice of ignoring it.

  44. “None of your examples contradict what I wrote”

    The examples do directly contradict definitive rulings in the gemara. Your “No one is permitted to pasken against the gemara.” is incorrect; both R’Spira and you yourself in your most recent post show examples of how rishonim did just that and how they justify it.

    I would have added women reading the Megillah for a man to the list of examples where the gemara gets overruled.

  45. tal: “IMO, part of the problem is that people learn gemara in a shallow, historical way without paying attention to the underlying lomdus. What may “at quick glance” appear to be a contradiction to the gemara is simply an elucudation thereof — based on tradition or contradiction with other sugyas.”

    one can argue which way is more shallow or ignorant – both sides may have valid points. nobody is taking about “a quick glance” – you need to explain what contradictions you referring to so your statement has some validity. do not forget the tosafists rejected the geonic and rashi’s understanding of many gemeras so that can harmonize all sygyas – and therefore, they innovated like none before them – especially on business dealing 3 days before and after their day of worship and holidays (totally different than rashi).

  46. typo : previous post should read:

    especially on business dealing 3 days before and after their – NON JEWS – day of worship and holidays (totally different than rashi).

  47. “mycroft on November 10, 2011 at 5:06 pm
    “Tal Benschar on November 10, 2011 at 12:11 pm
    . No one is permitted to pasken against the gemara.

    Do you go to work Dec 23, Dec 24? There are many times where our practice is counter to the gemara”

    is not contradicted by
    “1. The halakha of trading with Idolators prior to their holiday is a gezeirah, not a psak. Why it does not apply in our circumstances and not followed today is discussed at length in Tosafos Avodah Zarah 2a.”

  48. charlie hall – “I would have added women reading the Megillah for a man to the list of examples where the gemara gets overruled.”

    i guess there is an issue of whether woman have the same obligation – where i think the semag didn’t think so(minority opinion by the way) . but i here ya.

  49. tal – “1. The halakha of trading with Idolators prior to their holiday is a gezeirah, not a psak.”

    please clarify – halachot can be takanot and gezarot – are you suggest that the gezerot of moshe, yehoshua bi nun, ezra and yochan ben zakai etc are not binding(when endorse by the gemera) in general or different than recognized maskanot of halachot in the gemera?

  50. tal – “2. Kiddushei ketanah is discussed in Kiddushin 41a.”

    the biblical right of a father to marry off a minor daughter is rejected by the talmud – where we follow rav’s dictum per the maskama of the gemera – she has to be older. french jewry ignore it. todafists agree its unlawful but valid if carried out. their reasoning to allow is has to with the harsh conditions of the times – poor girls may not be married ever . hardly a good reason to override the gemera’s conclusion? again – we ignore the gemer’s halacha – but of course we have valid or semi valid reasons – and would could say we see it all the time in what we do vs. what is written in the gemer – this is called the evolutionary nature of halacha – it does change albeit slowly thru the ages.

  51. tal: “Tosafos discusses the extreme circumstance where not marrying off the girl will lead to a real risk of spinsterhood (becauase of oppression, the father may lose his money and be unable to provide a dowry).”

    please – great rabbis married off their child daughters in the middle ages regularly against the halacha in the gemera – this was widespread – not to mention that the christians did it too in those days – see avram grossman’s wonderful book – Pious and rebellious: Jewish women in Medieval Europe

  52. Tal – more examples of not following the psak of the Talmud:

    1. Clapping and dancing are assur on yamim tovim – Mishnah beitza 5:2 and tb beitza 36b -ignored by French Jewry – see tosafot beitza 30a s.v. Tenan for the reason why they ignored the Halacha.
    2. Two men sleeping together under one sheet – permitted by the chachamin ( law follows them) – kidushim 82a – see SA,Eh 24:1 – proper for males never to left alone together (contra to the Talmud).
    3. There is an obligation per the Talmud to marry and have children which can be enforced by a beit din (ketubot 77a) – see the rivash (issac b. sheshet perfect) where he admits that this old law has been abandoned and justifies it on the grounds of being strict would lead to constant strife and would be self defeating. See SA, Eh 1:3 where the rema codifies the rivash as the Halacha.
    4.mayim left expose overnight is assur to drink – hagigah 3a – rambam codifies this as law and is subject to malkot- see tosafot avodah zara 35a s.v. hada and beitza 6a – why we no longer follow this ruling.
    5. Renumeration for acting as a judge or teaching Torah is forbidden by the talmud- bekhorot 29a – people earned a living from other occupations but never from teaching Torah – see tosafot bekhorot 9a s.v. Man ani.clever answer that they are paid not for teaching but for giving up alternative methods of earning a living. But seriously aren’t they just explaining it away? like in the previous generations it was easier to do both – really not that convincing.
    And more if I have the time to look them up…
    There is no unifying theory that I know of that will explain why some Talmudic laws are later ignored or explained away while others are adhered to.

  53. Thank you, R’ Charlie Hall, for the kind recognition.

    I believe that Arukh ha-Shulchan, in his introduction to Choshen Mishpat, agrees with R. Benschar’s thesis. Arukh ha-Shulchan writes “in the days of Ravina and Rav Ashi and all the Sages of Israel of their days, this great and holy Talmud was completed. And from then on we have no permission either to add or to detract from the Talmud, only to understand its words.” In other words, Arukh ha-Shulchan thinks that halakhic decisions should follow the Talmud. Apparently, then, for Arukh ha-Shulchan the comments of Tosafot (and other Rishonim) are to be understood as elucidations. Some elucidations are quite surprising, as R’ Ruvie and R’ Charlie Hall have illuminated our eyes, but – at least in the opinion of Arukh ha-Shulchan – they appear to be elucidations. At the end of the paragraph, Arukh ha-Shulchan specifically describes the contributions of Tosafot as having “rendered the ocean of the Talmud like a sphere and illuminated its paths, and without their holy words we would search like a blind man in the obscurity.”

    Beginning second line from the top at
    http://www.hebrewbooks.org/pdfpager.aspx?req=9103&st=&pgnum=4&hilite=

    Ultimately, there is no scientific proof that Arukh ha-Shulchan is correct. It is a matter of faith (emunat chakhamim) that what he is saying is the accurate approach to Talmud. One could just as well interpret the Talmud to be an open book which a proficient scholar today is able to reform according to his philosophical discoveries. But it seems to me that the traditional Jewish approach is like Arukh ha-Shulchan, and I share that belief myself.

  54. That said, I definitely agree with R’ Charlie Hall and R’ Ruvie that there is an evolutionary nature to Halakhah. Were it not so, all the works of the Acharonim (including Arukh ha-Shulchan) would never be written. The Oral Torah provides the conducting program for how Halakhah should evolve. RHS discusses this in his chapter on Women’s Tefillah Groups in Be’ikvei Hatzon. [N.B. I am not necessarily denying the possibility of other conclusions on Women’s Tefillah Groups, I am just citing the methodology of RHS.]

  55. “Just as plantings are fruitful and multiply, so too words of Torah are fruitful and multiply” (Chagigah 3b) – if there is fruitful multiplication, by definition there is evolution. Yet the gemara continues that even this evolution was revealed to Mosheh Rabbeinu.

  56. Tal – “The halakha of trading with Idolators prior to their holiday is a gezeirah, not a psak. Why it does not apply in our circumstances and not followed today is discussed at length in Tosafos Avodah Zarah 2a.”

    You raise a very interesting issue. are all (or some) gezeirot time bound or context bound and do they became ineffective at certain points. secondly, do commerce dealings with gentiles fall into this category and what is tosafot’s response to the fact that in their day this law was ignored (and jews and christians had regular business dealings on 3 days before their holidays).

    your answer of why it does not apply is a misnomer. it does apply according to rabeinu tam who rejects rashi and the geonim as well as the earlier solution offered by tosafot (it maybe the editor rejects its ealier solutions because of its inherent problems that r’ tam solves). r’ tam reinterprets the mishnah as well as avoda zareh 6b with a novel solution that includes that the halacha of not transacting with gentiles is still enforced (yet explains why french jewry is not sinning).

  57. Gil – I note you haven’t removed the line in your post which states that according to the Rambam, “nearly all contemporary eruvin are invalid because they utilize the “doorpost” model across most, maybe even all, the perimeter of the eruv”, despite what various commenters have noted (primarily the fact that most contemporary eruvin use pre-existing mechitzos for the vast majority of their perimeter). Is this because you disagree with their explication of the Rambam’s position or for other reasons?

  58. Admittedly, I now see three explicit comments of Tosafot that address our question:

    1) “There are matters concerning which we leave aside our Gemara and we follow external books (sefarim chitzonim).” (Berakhot 18a, s.v. le-machar)

    2) “And concerning a number of matters we rely on external books and leave aside our Gemara.” (Pesachim 40b, s.v. aval)

    3) “And according to external books [which contradict the Gemara] we conduct ourselves in a number of matters, for example [reading] ‘Va’yechal Mosheh’ on the afternoons of fast days.” (Avodah Zarah 65b).

    Clearly, this requires a theological explanation if one is to accept Arukh ha-Shulchan’s belief (which seems to me to be the Orthodox Jewish belief) that all halakhah should flow from the Talmud. Apparently, there are rare cases of minhagim where external books override talmudic directive. I speculate that this can be compared to the Diaspora-wide practice of beginning “ve-ten tal umatar” 60 days after the autumn equinox, which is an instance of “minhag mevatel halakhah” (when so advocated by Rishonim), as explained by R. Zevin in Ha-Mo’adim ba-Halakhah.

    http://www.hebrewbooks.org/pdfpager.aspx?req=38888&st=&pgnum=142&hilite=

    Interestingly, the Artscroll English-language edition of Ha-Mo’adim ba-Halakhah adds a reference to “minhag mevatel halakhah” – Jerusalem Talmud, Yevamot, ch. 12. Apparently, the Artscroll publishers realized the important theological implications of R. Zevin’s analysis and so they wanted to explain that the concept “minhag mevatel halakhah” has a talmudic basis in its own right.

  59. On commerce between jews and gentiles prior to their holidays: a side note-

    It is interesting to note that one of earliest explanations on commerce dealings with gentiles is Rabbeinu Gershom (10th century – responsa 21). Based on a gemera (Hullin 13 b)where Rabbi Yoĥanan states that “Non-Jews outside Eretz-Israel are not idol worshippers: they are just following ancestral custom”, R’ Gershom concludes we are outside Eretz-Israel; and since they [the Christians] are thus not [according to Rabbi Yoĥanan] idolators we are not prohibited from doing business with them on their festive days. People often misconstrue R’ Gershom’s view to that he did not view christianity as idolatry. later on he says – “But Jews do trade [with Christians] on non-Jewish holidays and we should not forbid this. “It is preferable that they [Jewish traders] act in ignorance [of the law] rather than deliberately [disobey it]” [Betzah 30a] because their livelihood is dependent on our trading with them [the local Christians], and most of the days of the year are festive days for them.”

    I find it interesting that R’ Gershom and other poskim of that era distinguished between the Christian multitudes and the Christian religion. Relying on the argument in the Talmud Bavli that, “Gentiles outside of the land of Israel are not idolaters. Rather, they adhere to their ancestral customs” (Hulin 13b), these halakhists determined that because the local gentiles were not devout, some of the prohibitions on commerce did not apply to them. Nevertheless, they held that even though Christians were not devout in their religion, Christianity (and its symbols)itself was idolatrous. Also, it seems that Tosafot rejects this line of reasoning for its solution to dealings with gentiles in avoda zarah 2a.

    Its not until the 13th century that the Meiri comes up with the novel idea that christians were not to be idolators (as oppose to tosafot and rambam)with the result that many tamudic rules and regulations were not applied to those whom Meiri calls ‘nations restricted by the ways of religion’ (‘umot ha-gedurot be-darkhei ha-datot’), He creates a new halahik category : one believing in four matters is one “restricted by religion”, viz.creation ex nihilo, providence, recompense, and the existence and truth of metaphysical/spiritual
    incorporeal reality. Meiri’s own chiddush was not that such an individual is “religious”, but rather that a “religious” individual is exempt from the Talmud’s discriminatory civil legislation. According to the Me’iri, the discrimination that pervades the halakhah with respect to these rights applies only to the ancient nations, which are “not restricted by religious practices”. In the Me’iri’s view, contemporary gentiles are fully equal to Jews in these respects. The ramifications: The Me’iri treated the gentiles of his day no differently from Jews with respect to obligations and rights in the following matters: compensation for property damage, the prohibition on robbery, the obligation to return lost property, the obligation to rescue from harm, granting gratuitous gifts, the obligation to help in loading a beast of burden, the prohibition on excessive profit, the imposition of equal punishment for killing a gentile, the prohibition on delaying payment to a hired worker, the violation of the sabbath to save human life, the authorization to sell armaments to a gentile, and the authorization to stable an animal in a gentile’s inn.
    I thought this was aninteresting side note in the history of halacha (and its evolution). sorry for the long post.

  60. Ruvie:

    I wrote an extended response, which unfortunately was deleted when I tried to post it. The joys of cyberspace.

    Briefly, the main points were:

    1. There is a difference between horaah and gezeirah. The psak of the Talmud Bavli is binding as horaah — Ravina ve Rav Ashi sof horaah. The obligation to follow that is the parsah in Shoftim. It is that to which I was referrring.

    Gezeiros, OTOH, may have a different source and different rules as to when they are binding or not. If the tsibbur does not accept it, it is not binding. See, for example, shemen akum and tevillas Ezra.

    2. WRT to a horaah, while the psak of the gemara is binding, that does not mean that a change in circumstances might not result in a change in the bottom line psak. Halakha is formulated relative to the facts — change the facts and you change the psak.

    This is what R. Spira above calls elucidation. What seems to be an absolute psak may not be, based on masorah or contradiction with other gemaras.

    What Tosafos in Kiddushin 41a says about Kiddushei Ketana fits into this rubric perfectly. That you may find it unconvincing does not change the fact that Tosafos assumes that the gemara is binding, but must be understood more subtly than one might suppose at first glance. (In fact, that particular sugya is not all that subtle. The reason for the issur is interpersonal — the mitzvah of ve’ahavta le reiecha kamocha. In the extreme circumstances of the Middle Ages, the bottom line psak became different.)

    3. I refer you to R. Soloveichik’s famous moshol about the history of the atom bomb and the principles of physics. It elucidates rather clearly the appropriate and inappropriate place of history in halakha.

  61. Tal – i do not understand how your recent post elucidates your statement: “No one is permitted to pasken against the gemara” – are all my examples gezeirot whose time may have elapse? changes from the closing of gemera to halacha happens due to social change, changes circumstances, shifting categories, etz laasot (emergency rulings), reintepretation due to historical and custom changes – reinterpreting generot, etc – which i think you don’t disagree with but you would not call that paskening against the gemera – what would it be called? does it make a difference if its the tzibbur or a rabbi that does it?

    i am confused – what sof horaah has to do with it – for the halacha or final pesak in gemera? the redactors – whoever they are – rendered the maskanot – as well as the halacha – of the talmud (7th century).

    “If the tsibbur does not accept it, it is not binding” – agree – but are we talking in these cases- the ones i quoted above- of gezeirot? a gezeirah is a seyag latorah – here dealings with gentiles is not a seyag but assur for hanaah reasons as well as praising their idols or contributing to sacrifices of their idols ( i don’t see it as a gezeirah but admit that i have not research it plus i did see any ” haym gazru ” type of wording).

    “What seems to be an absolute psak may not be, based on masorah or contradiction with other gemaras.” i do not understand what you mean here – sorry i am slow sometimes.

    “What Tosafos in Kiddushin 41a says about Kiddushei Ketana fits into this rubric perfectly. ” i do not see how that is true – tosafot overrides the halacha based on economic reasons of the time – but is that justified is my issue – by the same logic we can do away with yom tov sheini – etc. tosafot went contra to halacha for a reason they believed to be valid – ok so they did not abide by the gemera to etz laasot. still it means what it means not that they abided by it – they change it.

  62. correction: “plus i did NOT see any ” haym gazru ” type of wording).”

  63. Ruvie, I am not sure how to make it clearer without becoming overly pedantic and verbose. The point I am trying to make is that all halakha (in fact all law) is a matter of general principles which are applied to specific cases. The principles are almost always relative to the facts. Change the facts and the bottom line psak will change.

    The problem is that the gemara often just gives you the bottom line psak and you have to elucidate the principle if you want to apply it elsewhere.

    Let me give you another example. The gemara states that for a man plucking out or coloring his grey hairs is forbidden as a form of simlas ishah. (Disputed whether this is deoraysa or derabbanan). Yet rishonim say that in a time and place where men do so, it is permitted. That psak is not a contradiction to the gemara. The Rishonim are rather inferring a principle — a man should not act in a way unique to women — and then applying it — in a society where a custom is generally accepted to be done by both men and women, it is muttar. The PRINCIPLE of the gemara has not changed, but its application has. True a shallow reading of the gemara would indicate it is ossur, but a more careful reading indicates that the issur is relative to how men and women behave in society. (The Rishonim’s inference is quite logical — the whole prohibition stems from the possuk lo yilbash gever simlas ishah — something unique to a woman. That certainly changes over time and place — we don’t wear skirts, but the Scottish wear kilts.)

    The same applies to kiddushei ketana for the reasons I elucidated. The gemara says it is ossur. Why is it ossur? Suppose I were to marry off my 10 year old daughter — what exactly have I violated?

    I think it is pretty clear for the reasons stated that what I have violated is ve ahavta le reiecha kamocha. I did my daughter a wrong turn — put her in a bad situation. There is nothing wrong with the marriage in terms of the laws of kiddushin, but there is something definitely wrong with how I treated my daughter.

    It follows, I think, that in an extreme situation where most girls would prefer to be married, even to someone they would rather not marry, rather than face a life of spinsterhood, then ve ahavta le reiecha kamocha might mean doing something else. That I believe is the explanation of what Tosafos is saying.

    That’s the best I can do, if you don’t see it, you don’t.

    What, BTW, is your learning background? I get the impression that it is heavily based on the historic-academic method.

  64. Tal – i do think we are talking pass each other at this point. we are using similar language in different ways to describe patterns of halacha changes post talmud. neither of us deny the reality of the changes but will explain it in different ways. more on your post shortly.

  65. tal – on your post of nov.14, 10:39

    never under stood why you needed say ravina and rav ashi sof horaah – it has nothing to do with our conversation (let alone what that means – “end of instruction”). halacha is what religious jews practice (or show fealty to)- which includes gezeirot, takanot, minhagim – as well as telling us the parameters of biblical commandments as well. you never articulated which of my examples are gezeirot or that they should have different rules than other halachot – i am aware that some dezeirot maybe time, geographical and context bound – but so too some non gezeirot (please provide a source if you are talking about a general klal). you seem to me mixing horaah, halacha – psak halacha, and gezeirot together : when you say-
    ” Halakha is formulated relative to the facts — change the facts and you change the psak.”

    do you mean all halacha – which includes all subsets of categories – is relative to facts? sounds like the conservative or reform theology in changing – from their view – jewish practice. this quite sweeping but i do not think you mean this – or i am misreading your post. no doubt there are circumstances where the halcha changes – there is nothing more flexible than halacha – but that is subject to a lot if ands and but (plus the slippery slope to forbidenville).
    again i was surprise to your blanket statement – as i posted later that idid not understand – change the facts and you change the psak – which no orthodox person or posek subscribes to.

  66. Ruvie, I agree that at this point we are talking past each other.

    Just to clarify one point:
    ” Halakha is formulated relative to the facts — change the facts and you change the psak.”

    do you mean all halacha – which includes all subsets of categories – is relative to facts?

    Of course, what facts are relevant or irrelevant to the psak is itself part of halakha. Not every change in facts will change the halakha, and every halakha is different. So perhaps that part was stated too broadly. But clearly every halakha contains some factual reference which if you change, changes the halakha. I don’t think any Orthodox poseik would disagree — in fact they would consider it trivially obvious.

    The Torah assurs eating pork. Seems pretty absolute. Yet if you dry it out to the point where it is inedible, it is no longer ossur (nor is it metamei). You could eat a “pigskin” football and not violate the issur of chazir. (This is true of most maachalos assuros — they have to be fit for human consumption. This is learned out by Chazal from a possuk.)

  67. Tal – on the gemera in kidushin 41a – kiddushei kittana –
    “Tosafos assumes that the gemara is binding, but must be understood more subtly …The reason for the issur is interpersonal — the mitzvah of ve’ahavta le reiecha kamocha. In the extreme circumstances of the Middle Ages, the bottom line psak became different.)”

    the gemera is explicit in the name of rav that it is prohibited to marry off an under age daughter until she says i want so and so. it would seem that the prohibition is based on needing consent from the child -and there is a min. age to consent- but if it is done of course the marriage is valid (there is no question to that). btw, we are talking about marriages at the age of 8 or 9 but sometimes much earlier.

    please read tosafot clearly – it has nothing to with v’ahavta – “now we are accustomed to marry off ..when they are minors. its not because they are poor but maybe he will not have a dowry later when she is older but when she is young – is that enough justification to overturn the halacha? it seems that way before tosafot it already had become common practice to ignore this halacha – the minhag of damascus was to mattu their daughters off at 8 or 9. in the name of r’ meir of rotenberg – rav’s halacha is only valid in talmudic times. my point- custom of the times change the halacha and the rabbis gave reasons – some better than the others to ignore the halacha in the gemera. what you try to do is a form of apologetics – its better for the girl – there is no subtlety to the reading of the gemera by tosafot and other rishonim – contra to your claim – its excuses why we ignore it. tosafot does NOT assume the gemera is binding.there is no mention of your term “extreme circumstances: – actually the tosafists themselves married off their children while minors. it would seem the minhag hamakom is to ignore rav’s prohibition in the gemera and tosafot gives one of many reasons that others gave in that period of time.

  68. tal: more on child marriages: this what i mean by apologetics:

    “I think it is pretty clear for the reasons stated that what I have violated is ve ahavta le reiecha kamocha. I did my daughter a wrong turn — put her in a bad situation. There is nothing wrong with the marriage in terms of the laws of kiddushin, but there is something definitely wrong with how I treated my daughter.

    It follows, I think, that in an extreme situation where most girls would prefer to be married, even to someone they would rather not marry, rather than face a life of spinsterhood, then ve ahavta le reiecha kamocha might mean doing something else. That I believe is the explanation of what Tosafos is saying.”

    you seem to miss the point that no one says – see my comments above – tosafot did not care about the child in their comments – they come to explain why rav’s assur is no longer followed – its black and white and similar to other geonim and rishonim responsa (all have their nuances). its nice you care about the girl – and she was done wrong – they would disagree with that. v’ahavata play no role in this discussion – at least not according to the poskim of their day. v’ ahavta applies to the man in not seeing the future bride – (a woman does not have to see her husband here) see a rough translation below:

    “One may not be Mekadesh a woman without seeing her. Perhaps he will see in her something displeasing, and despise her, and transgress “you will love your fellow man like yourself”!

    your reasoning seems to contradict the gemera and is faulty imho.

  69. tal – “The gemara states that for a man plucking out or coloring his grey hairs is forbidden as a form of simlas ishah. ”

    agree with your assessment. this is a perfect example of an halcha that was interpreted as depending on social condition of a time and place (nazir 59a). i would add that there was no change at all and it applied or didn’t depending on the custom of the area and included shaving armpits,pubic hair as well as wearing women’s clothes on purim – see ran. sa disgrees but the rema quoted the ran to include wearing dresses on purim because that is the norm for men but taz and bach forbid it.
    thank you for your time.

  70. Ruvie:

    You are ignoring the beginning of Tosafos, who asks why we do not apply tav lemeitav tan du to the issue of kiddushei ketana. If an adult woman can marry someone without seeing him because of tav le meitav, then why not apply that to a ketana? Answers Tosafos, because an adult woman, who agrees to marry a man sight unseen has accepted and agreed to that wholeheartedly, whereas a ketana may change her mind when she grows up and not agree to her father’s choice.

    This in fact puts a ketana in precisely the same position of a man marrying a woman sight unsign — either may change their mind later.*

    So sorry, it very much is a matter of the woman’s choice — or in this case the young girl’s choice. An adult woman can properly give her “ratzon,” an immature ketanah cannot. That is the gist of Tosafos’s understanding of why there is an issur.

    Indeed, that is stated in the gemara itself, which clearly states: “is it forbidden for a man to marry off his daughter while she is a minor until she matures and states to [marry] so-and-so I desire.” THe prohibition is until the girl is mature enough to give her mature agreement to the marriage.

    Your statment that you need the girl’s “consent” is misleading and fails to deal with the basic distinction between daas and ratzon. (Yes I know that is a lomdishe distinction, but it is basic.) Daas is the legal will to effect a transaction. Only adutlts have it. When a father marries off his daughter, it is HIS daas that counts. (Same applies to kiddushin of a naarah — a girl from 12 to 12 1/2 which the gemara there expressly permits.)

    Ratzon means acceptance of the situation — agreement. When a father marries off his naarah, HIS daas effects the kiddushin, but she may express ratzon.

    (For that matter, the gemara certainly implies that even with a naarah, the father would have to ask her whether she agrees to marry Ploni. To marry her off without even asking her opinion is no better than marrying off as a ketanah. Just a side observation.)

    Without meaning any insult, your explanation this is precisely what I mean by a shallow historical understanding of the gemara. Your explanation never answers my basic question. The gemara says it is ossur. What’s the issur? Even if the Rishonim don’t use the possuk, ve ahavta le reiechah kamochah, it is clear that the problem here is interpersonal, not a matter of kiddushin.

    (To put it differently, you could say that Tosafos is saying that in the circumstances they lived in, one would apply a version of tav le meitav even to a ketanah, since the likely alternative would be spinsterhood. That ties the two parts of Tosafos together nicely. If that makes you happy, fine.)

  71. One more thing I found. There is a website dafyomi.co.il which gives various study aids to gemara, put out by a kollel in Israel. One of the offerings is called “Insights to the Daf,” short summaries of discussions of the Rishonim on those topics. The page on Kiddushin 41a states:

    “The Gemara teaches that a father may not marry off his Ketanah daughter until she is old enough to consent. The Rishonim explain that the reason for this decree is the concern that the girl might eventually come to hate her husband and transgress the Mitzvah of “v’Ahavta l’Re’acha Kamocha” (Vayikra 19:18).”

    Unfortunately, it does not identify these unnamed Rishonim. I will try to see if I can track them down.

  72. Tal – thank you for the reference. But I think I have quoted enough rishonim to show that they didn’t care to go there. Actually, I would argue its contra to the gemera in that the gemera I believe acknowledges that I woman does not have to see her groom before the wedding. If so, it surely would imply at a ketena has no standing in v’ahavta. – for it states in said gemera that a woman prefers to be married than alone ( and therefore does not have e issue lest she find him ugly or whatever – this is from memory since I am running to a show and can’t look this up). In the end almost all the rishonim I have seen do not even offer this explanation – and for good reason.

  73. Tal – back to my original point about tosafot – would you agree that your reading is incorrect?

  74. Ruvie, you are again ignoring the fact that Tosafos expressly says that tav le meitav does NOT apply to a ketana. That is the very question of Tosafos — if you applied tav le meitav to a ketana then there should be no issur.* That’s Tosafos, not Tal Benschar. Look it up when you have time.

    ___________
    * That is a good starting place to understanding the Tosafos — why would there be no issur if tav le meitav applied?

  75. Tal – back to my original point about tosafot – would you agree that your reading is incorrect?

    No, for the reasons I have explained.

  76. tal – you are correct and my apologies – tav le meitav does not apply to a child per tosafot. i should never post from memory.

    my comment: back to my original point about tosafot – would you agree that your reading is incorrect?

    refers to your insistence kidushei kittana – “That you may find it unconvincing does not change the fact that Tosafos assumes that the gemara is binding, but must be understood more subtly than one might suppose at first glance. ”

    how is the gemera binding and according to you tosafot upholds the gemera? as oppose to avoda zora 2a where tosafot reinterprets the gemera so that french jewry is not acting against the gemera’s halachot. here its the opposite by saying circumstances have change and we ignore/override said halacha in the gemera? please explain.

    btw, didn’t see your 5:52 comment earlier and will respond tomorrow. you are also silent on many of the other examples given – on the fact that we follow the gemera’s final psak in general.

  77. how is the gemera binding and according to you tosafot upholds the gemera? as oppose to avoda zora 2a where tosafot reinterprets the gemera so that french jewry is not acting against the gemera’s halachot. here its the opposite by saying circumstances have change and we ignore/override said halacha in the gemera? please explain

    Because the principle of the gemara has not changed, but its application has because of changed circumstances.

    The principle of the gemara is that you need a woman’s ratzon to marry her off — even where the father is in control of the kiddushin. Without her ratzon, you are violating an issur.

    (I will use the term ratzon, rather than translate it which may lead to confusion. I will also refrain from identifying what the issur is — although I have indicated above what I think it is.)

    The gemara says a ketana cannot express her ratzon — until she is mature enough to do so. Tosafos initially is bothered that this seems to contradict the principle of tav le meitav tan du. Acc. to Tosafos’ question, tav le meitav means that generally women wish to get married, and would prefer any man to living alone. No reason that understanding should apply to an adult any more than to a ketanah. The chazakah of tav le meitav supplies the ratzon.

    Tosafos answers that tav le meitav is more subtle than that — it means that an adult woman can decide that she would rather accept marraige with a man without full knowledge than live alone. IOW tav le meitav is not a free-floating chazaka, its part of the calculus of a woman’s volitional decision making. If she says she is willing to marry a man sight unseen and accepts that, we believe her. (Not so for a man! Notice by the way how this turns tav le meitav inside out to what most people think it means).

    A ketanah, OTOH, does not have this volitional decision — she is too immature, and might change her mind, despite tav le meitav. Since she is too immature to express her ratzon, it is ossur to marry her off.

    Tosafos then points out that in his days people did marry off ketanas. What is the justification for that? Tosafos says that because of the great oppression of galus, there is a serious risk that the father may be rendered poverty stricken by oppression and be unable to fund her dowry. Hence if you do not marry her off, there is a real chance she will never marry.

    It appears that Tosafos is positing that in the circumstances of the Middle Ages, one must assume that the woman would want to get married under these circumstances — her father is now in a position to marry her off, and if he does not, she may never be able to marry. In other works, there is a chazakah that, under these circumstances, she would have ratzon to get married.

    Hence the principle of the gemara is satisifed — the woman’s ratzon is there, albeit through a presumption rather than through a mature decision. This is very similar to how Tosafos thought that tav le meitav worked in their question on the gemara.

  78. Tal – thank you for your time and indulgence to this am haaretz.

    lets look at your conclusion:”Tosafos is positing that in the circumstances of the Middle Ages, one must assume that the woman would want to get married under these circumstances…”

    what you are reading into tosafot contradicts the first part of tosafot. a kettana has no daat – period. therefore tav lemaitav can never apply to the kettana- so how can you seriously claim that tosafot is honoring the principle that a kettana would or could want anything and if she did it would have any halachik impact since she is not in the parsha? tosafot is simply stating why their minhag hamakom does not follow the ruling in the gemera – they are not ashame here to explain it away – they are not upholding anything you speak of.
    more later.

  79. what you are reading into tosafot contradicts the first part of tosafot. a kettana has no daat – period. therefore tav lemaitav can never apply to the kettana- so how can you seriously claim that tosafot is honoring the principle that a kettana would or could want anything and if she did it would have any halachik impact since she is not in the parsha?

    Because Tosafos never said any such thing. What they said was the ketanah was too immature and might change her mind, as opposed to an adult woman whom we are confident will not once she states that she accepts this marriage.*

    You are again confusing daas and ratzon. Daas means legal will, which minors are categorically excluded from. It has nothing to do with maturity. A boy the day before his bar mitzvah lacks daas and cannot legally transfer his property to another. The next day he can. It’s not that he is suddenly a mature adult, it is that he is now vested with daas.

    Ratzon means what a person wants in the situation. It is not a legal will — and it is possible that a chazaka could inform us that that is what the person wants. This is precisely what Tosafos thought in the question on the gemara — that tav le meitav tan du supplies the woman’s ratzon.

    Although Tosafos rejected that in the answer, there is no reason that another (extreme) circumstance might not lead us to conclude that a woman would indeed want to be married. That is what Tosafos is saying.

    ______________
    *Compare this to the answer of the Rashba to the same question, who states that we are concerned that the ketanah may have been convinced by others to accept a marriage she may later regret.

  80. BTW, the Rambam seems to hold that the “issur” is not really an issur but merely an inappropriate way to act — it is not “rauy.”

    ואף על פי שיש רשות לאב לקדש בתו כשהיא קטנה וכשהיא נערה, לכל מי שירצה–אין ראוי לעשות כן; אלא מצות חכמים שלא יקדש אדם את בתו כשהיא קטנה, עד שתגדיל ותאמר בפלוני אני רוצה.
    (Ishut 3:25)

  81. tal – on the rambam – as i alluded to it before the rambam doesn’t formulate the halacha like the gemera – rav’s “assur” becomes אין ראוי לעשות כן – its simple – child marriages were already happening. many of the gaonim already issue responsa saying its our minhag to do x vs the gemera’s psak. they seem less bothered than you do about upholding the “assur” of the gemera.

  82. tal – i apologize for using the word daat. will consent be ok?

    “This is precisely what Tosafos thought in the question on the gemara — that tav le meitav tan du supplies the woman’s ratzon.
    Although Tosafos rejected that in the answer, there is no reason that another (extreme) circumstance might not lead us to conclude that a woman would indeed want to be married. ”

    its not tosafot that rejects – the gemera does by saying it – actually tos. infers it- does not apply to a ketana since a kettana can not be mekadeshet.

    If tav lemativ does not work for the ratzon of the ketanna why should ANY circumstance be any different. you seem to be dreiin akup trying to fit tosafot into your reasoning which tosafot rejects but you seem not to be able to.

    “Although Tosafos rejected that in the answer” if they reject it but agree to child marriages what principle are they upholding – that there is ratzon? how so if they rejected your own reason which you just admitted to.
    WE ARE TALKING PASS EACH OTHER. there is no subtlety that i see. i must be deaf, dumb and blind.

  83. Lineman-thanks for your always enlightening post-don’t ask how many people think that the MB is the final word on Shishim Ribo.

  84. tal – would you agree to the following:

    structure of the gemra – mishnah – a man can mekadesh his daughter when she is a naarah by himself or through a shaliach.
    skip to : rav yehudah – one may not mekadesh a woman with out seeing her. perhaps he will find her displeasing and transgress ” v’ahavta kereacha…

    gemera – a woman may become mekudashet via a shaliach, for she will lover husband (assumption here is she does not see him before chupah). reis lakish gives the reason: a women prefers to be married than live alone (tav l’metav tan du): two dots and the generah moves on to the other part of the mishnah.
    mishnah: a man can makedesh his daughter when she is a naarah
    gemera: this only when she is a naarah but not when she is a minor. this supports rav who said: IT IS ASSUR (PROHIBITED) TO MEKADESH ONE’S DAUGHTER WHEN SHE IS A KETTANA UNTIL SHE IS OLDER AND SAYS SAYS SO AND SO I WANT.

    can we agree that this is the structure of the gemera and the rest is commentary?

  85. Tal – if the above is correct then every else are assumptions and commentary in order to make sense of the gemera.

    so when you say: “The principle of the gemara is that you need a woman’s ratzon to marry her off — even where the father is in control of the kiddushin. Without her ratzon, you are violating an issur.”

    its your principle not the gemera’s. “The chazakah of tav le meitav supplies the ratzon.” also not stated by tosafot. it simply states: it works by a gedolah because she wants to (or is willing) and we do not worry about her changing her mind but by a ketana this does not work – she may change her mind when she gets older. there is no discussion of a chazaka but the use of logic by tosafot (which is their usual mo).

  86. al – finally “It appears that Tosafos is positing that in the circumstances of the Middle Ages, one must assume that the woman would want to get married under these circumstances — her father is now in a position to marry her off, and if he does not, she may never be able to marry.” its a condition that doesn’t exists at the time. do you not find that odd?

    so does this work when she is in the cradle and married off too (which happened as well as 3 and 5 years old)? a chazakah – that does not exists – does not help when there is no possible ratzon since if there was then tosafot would have used your reason to defend the practice of child marriages.

  87. can we agree that this is the structure of the gemera and the rest is commentary?

    While that is true, I think the difference between us is that where I come from the tradition is that one cannot reach a proper understanding of the gemara without a throrough review of the “commentary” of the Rishonim.

  88. Ruvie, I really think that at this point there is no point in continuing. A statement in the gemara has a legal principle behind it. That is the difference between the lomdus approach and the historical approach. If you don’t want to go there, then fine, but that is not how gemara was traditionally learned.

    I don’t know if this will help you, but one might ask on the gemara, what if the ketanah is particularly mature and bright — and close to the age of maturity, let’s say 11. In fact she is mature enough to agree to the marriage. Does the issur still apply? The Koran Nesanel, quoting the Bach, rules that it does not. So the din of Rav is not a categorical prohibition on Kiddushei Ketanah, it is a prohibition on marrying off girls too immature to agree to marry the would-be husband.

    Before I sign off, let me reference a moshol given by R. Soloveichik about understanding halakha and its interaction with history.

    In the 1950s, someone published an article stating that in the time of Chazal there was a severe shortage of wood in EY, and there was great difficulty in finding wood to build sukkos. So the chachamim came up with many halakhos applicable to sukkos (like lavud) which would permit building a sukkah with minimal wood. This was the person’s thesis — a rather typical example of historical scholarship at its worst.

    R. Soloveichik said this may be true, but it does not matter. He gave the following moshol to explain.

    During WWII, the Allies had a deep fear that the Nazis, yimach shmam, were developing an Atomic bomb, and would use it to win the war and control the world, Ch’v. So, as we know, Einstein wrote to President Roosevelt urging him to act, and the U.S. govt. secretly gathered the great minds of physics of the day and the Manhattan Project was born. They worked feverishly to make the bomb happen, and as we know they eventually succeeded.

    Now imagine, said R. Y.D., that someone walks into a physics class and the teacher asks, “How does the atom bomb work?” And someone answers, “Professor, it works because in WWII everyone feared the Nazis would get the bomb first, so there was a great historical need for it!” That student would be laughed at. The workings of nuclear physics have to be understood on their own terms. True, a great need drove the great minds of the day to work hard to uncover and apply those principles. But those principles are eternal and have to be understood in their own light and on the terms of physics, not the history of WWII.

    The same thing applies to Torah. True, a great pressing need may have driven the chachamim to learn the relevant halakhos and investigate whether there might be a basis to be more lenient. But the principles are eternal and their validity has to be understood on its own terms.

    In any case, good luck.

  89. Tal – ” I think the difference between us is that where I come from the tradition is that one cannot reach a proper understanding of the gemara without a throrough review of the “commentary” of the Rishonim.”

    i actually do not disagree. my previous post was an attempt to show what is in the gemera and what was not. if not then it has to be bound by at least logic that holds up under review. i also wanted to show what exactly is in tosafot and what is read in especially your principles – which to me has not held up to scrutiny. it was an exercise thats all. i do not study via historical method (although i find scholarship interesting for important sugyas) but by brisker or other methods – currently i am going through shevuot with the rav’s kuntros by reichman.

  90. tal – will get to your last post in the am. just wanted to know how you think the concept of mi’un fits into your system and why a mother or brother would have a different event than a father (with a kettana) if the ratzon is the same? i have not yet look into it but care for your thoughts.

  91. tal – know the rav’s story well – heard it many a time. when it comes to applied halacha i believe that it is ahistorical. halacha has its own internal system – its own logic – which makes it very flexible in the hands of a creative posek. i think chazal wanted it that way and they showed their creativity by grounding in the sources but also by having an open and expanding book. history is of importance when one wants to study the development of halacha and see its transformation – it explains a lot more than any other method known to us – its just ineffective or useless in any application, imho. i am not sure if you agree but its something to think about.

  92. so when you say: “The principle of the gemara is that you need a woman’s ratzon to marry her off — even where the father is in control of the kiddushin. Without her ratzon, you are violating an issur.”

    its your principle not the gemera’s

    What I am trying to understand is, do you think the gemara has no principle at all? Or do you think that it has some other principle, other than what I have stated?

    Every halakha, whether deoraysa or derabbanan, has some geder ha din. Our job is to try to understand and formulate it the best we can.

    The two possible formulations I see in the gemara are:

    1. Rav made an arbitrary cut-off that kiddushei ketana are ossur per se — a ketana, by virtue of her status as a ketana, is forbidden to be married. (There is a similar geder by chalitzah — a katan and a ketana are per se excluded by a derasha.)

    2. Rav forbade marrying off a ketanah because she is too immature to know what she wants and to express her ratzon to marry this man.

    Maybe you can think of another formulation, or refine mine. But the operative presumption of lomdus, indeed all traditional learning, is that there is some legal principle which governs the psak in the particular case.

    THe language of the gemara ad she tagdil etc. suggests that my second formulation is correct.

    Based on the gemara, how would you pasken these two shailos:

    1. Can one marry off a ketanah who is 11 1/2 and is a pikachas — a clever mature girl who know what she wants? (Acharonim say yes.)

    2. If the girl is a naarah, can the father marry her off without even asking her, or over her protests? If he did has he violated the issur of Rav? (I would say clearly yes. The Rambam’s presentation of the halakha seems to support that — he puts together ketanah and naarah.)

    These two shailos depend on which of the above two formulations you accept.

  93. “The chazakah of tav le meitav supplies the ratzon.” also not stated by tosafot. it simply states: it works by a gedolah because she wants to (or is willing) and we do not worry about her changing her mind but by a ketana this does not work – she may change her mind when she gets older. there is no discussion of a chazaka but the use of logic by tosafot (which is their usual mo)

    I think you are confusing Tosafos’s question with the answer. I was explaining the question. Why does Tosafos think that the gemara that forbids marrying a ketanah contradicts the gemara that states tav le meitav? Put differently, why should tav le meitav take care of Rav’s issur?

    The question itself supports my formulation of the gemara’s issur as one of ratzon, and not a per se issur. If it were the latter, Tosafos question would make no sense.

    (As my rebbe once said, you can often learn more from a question or a hava amina than from an answer.)

  94. Tal – again thanks for your time and patience and sorry for my delayed response.

    i am not sure of the principle involved. sometimes formulations must be tested against the data – lets use the rishonim and see how the formulated and dealt with the issue. i d0 not think ratzon really play the role you have given it. lets look at the formulations first:

    1. “Rav made an arbitrary cut-off that kiddushei ketana are ossur per se..” why arbitrary – chazal have given people certain categories that they fall into by age. rav’s viewpoint can easily be an ethical or moral one. what assur can there be if there is no punishment at all at the kidushin is 100% valid…same to with rav’s earlier statement that a man is assur to mehadesh a woman he did not see. what happens if he does? nothing. it seems that rav wants to narrow the mishnah’s statement of who and how one is mekadesh. but yet all is valid and nothing happens if you do – hence it may be appropriate to think this in moral concerns not to hate your wife, domestic civility, less strife at home and hopefully less philandering due to unhappiness. this is not my personal view – its sefer hasidim (seif 1104): advise the father to imagine how he would feel if he were forced to marry a woman against his will. moreover, if the father pressures her to marry one whom she does not love, he will be held MORALLY accountable if she strays from him.

    2. “Rav forbade marrying off a ketanah because she is too immature to know what she wants and to express her ratzon to marry this man.” i would say that she may be too immature to be in the parsha – the ratzon part i am not sure about. consider the meiri (beit habechira – kidushin chapter2) – rav statement does NOT mean that once she grows we need to her say i want so and so…for the more she grows the more she accepts ANYONE..rather: “until she grows..” once she is older she accepts whomever her father choses is acceptable to her. he negates ratzon as a factor like most of the rishonim. see the rashba – (teshuvot harashbah) – a father may force his young daughter to marry the man to whom he had sworn to give her, EVEN THIS WAS OPPOSED TO HER OWN WILL.

    to wit the kol bo quoted the maharam of rotenberg claiming that rav’s edict was only in force in the geonic times “but now we are accustomed to mekadesh even a small child lest the groom be taken by another” (kol bo seif 65) – there is no attempt to reconcile rav’s edict with the custom of times – there seems to be no principle anyone is trying to upheld even superficially.

    we see that ratzon the minor was not in play according to the ones quoted above. it would seems its the father’s right that is in play and rav’s assur may be one of a moral or ethical nature but with enforcement if one does not abide by it – not even not listening to the rabbis – see the rambam’s formulation as proof in how they look at it (as you quoted above).

  95. tal – “THe language of the gemara ad she tagdil etc. suggests that my second formulation is correct.”
    not according to those quoted above.

    “Maybe you can think of another formulation” do i have to? A father can mekadesh a ketanna or naarah. however suggests rav that a man she see his wife before he mekadesh her and a kettana should not be mekadesh until she is of age. this all to do with civility of life and really is not enforceable under any circumstances. there are no punishments or consequences. i see a moral imperative stated as an assur since all is valid. also many geonim viewed: since there is no punishment it is an ETHICAL violation.
    rav could have based his assur on bereshit 24:57 – this week’s parsha with rivka – “and they said, lets us call the naarah and ask for her decision” see beresheit rabbah 60:12 – we learn from here we do not marry off a woman unless it is with her consent – daatah.

  96. tal – “1. Can one marry off a ketanah who is 11 1/2 and is a pikachas — a clever mature girl who know what she wants? (Acharonim say yes.)”
    the rishonim would say of course even she is against it. it will depend how you view rav’s statement – kettana is a technical category or conditional.

    2.”If the girl is a naarah, can the father marry her off without even asking her, or over her protests? If he did has he violated the issur of Rav?’ as i quoted the rasba and the meiri above her ratzon has nothing to do with it. they divorce until she says i want so and so from rav’s formulation as a de facto happening when she reaches that age. to wit, the rambam doesn’t even follows rav’s assur. he thinks its just good advice to follow this. how does the rambam reconcile the gemera? he just changes the halacha and does not abide by rav’s formulation. why?

  97. Tal – to sum up – how did we get here? you maintained that tosafot was upholding the principle in the gemera. i thought that tosafot explained why in their times rav’s edict did not hold. i compare this to tosafot upholding avoda zara 2a laws of not transacting commerce with gentiles (which of course they did in their time) by interpreting the gemara to mean a very specific type of dealings but not general commerce thus claiming that french jewry were not sinful (as oppose to r’ gershon).

    in the end your analysis that tosafot upheld rav’s edict (as oppose to saying times have change and economic circumstances takes precedent) falls into the putting the square peg in the round hole. its not lumdish (you need to set categories and test it against the many possibilities of the concepts you tried to employ) its baal batish.

    in the end rav’s edict assur to mekadesh a kettana until she of age to say i want so and so implies she has right in the choice of her husband and her consent (or her ratzon). this can be easily seen as a moral issue, rav is narrowing the mishnah’s legal rights by stating you can use a shaliach (but you must have seen her) and a father is limited to a naarah which excludes a kettana.

    i am curious if anyone has read the give and take here has any comments to what i have said. thanks for your patience apologize for the many typos.

  98. from the previous post: “implies she has right in the choice of her husband and her consent (or her ratzon)”

    of course many rishonim negate this as i have shown above. this would be today’s interpretation or post rishonim. according to rebeinu yohonatan (on the rif): it will be also assur for a woman to mekadesh a man if she does not know anything about him, his family, finances, etc – lo yodaat kellal (assuming she didn’t meet him before she still needs to know something to wan tot marry him).

  99. I have not (yet) reviewed the give and take, but just noticed this which may be helpful: http://menachemmendel.net/blog/2011/11/17/association-and-the-gentiles/

  100. Tal – to be clear – i objected to:

    “No one is permitted to pasken against the gemara.”

    “The halakha of trading with Idolators prior to their holiday is a gezeirah, not a psak”

    “Tosafos discusses the extreme circumstance where not marrying off the girl will lead to a real risk of spinsterhood” – not extreme but regular occurrence – minhag hamakom.

    “while the psak of the gemara is binding, that does not mean that a change in circumstances might not result in a change in the bottom line psak” then it is not binding but conditional.

    “that Tosafos assumes that the gemara is binding, but must be understood more subtly than one might suppose at first glance. ” tosafot does not assume the gemera is binding and neither does the rambam who says a father is not assur to mekadesh his kettana just not a nice thing to do(as well as the meiri, rashba and others).

    ” In the extreme circumstances of the Middle Ages, the bottom line psak became different.” agree – it was ignored and overridden by economic circumstances. tosafot says and now in our times we do do this…. it making an exception to what is written in the gemera and not reinterpreting it to comply like does in avoda zara 2a on commerce with gentiles.

    “there is something definitely wrong with how I treated my daughter.” not according to the rishonim such as the rambam, rashba, meiri and tosafot. there was no concern about the daughter’s rights or ratzon – that is a modern day concern read into the gemera and there is nothing wrong with that if you want to do that but the rishonim didn’t.

    “I think, that in an extreme situation where most girls would prefer to be married, even to someone they would rather not marry, rather than face a life of spinsterhood, then ve ahavta le reiecha kamocha might mean doing something else” we disagree this works for a naarah but not for a kettana – she can’t be in the picture according to rav and in tosafot time it does not make it so that she would have agree – she can’t.

    “This in fact puts a ketana in precisely the same position of a man marrying a woman sight unsign — either may change their mind later.” AGREE THERE may be a connection -BUT – “it very much is a matter of the woman’s choice — or in this case the young girl’s choice” – there is no idea of a woman’s choice – just that her father’s choice will be accepted – better to be married than a spinster – and that works only for a naarah. hence no fictitious ratzon.

    “the gemara certainly implies that even with a naarah, the father would have to ask her whether she agrees to marry Ploni” the rishonim rejects this line of reasoning – she has to maybe know not accept anything – she doesn’t matter in terms of her thoughts or wants per the rishonim.

    “Without meaning any insult, your explanation this is precisely what I mean by a shallow historical understanding of the gemara. Your explanation never answers my basic question. The gemara says it is ossur.” we simply DISAGREE. i am not using any historical method (maybe tosafot is but not me). it could be simply its unethical or moral. maybe it simply not best for domestic stability – darchei shalom anyone?

    “Without meaning any insult, your explanation this is precisely what I mean by a shallow historical understanding of the gemara. Your explanation never answers my basic question. The gemara says it is ossur.” but they didn’t because it doesn’t work for the kettana per the earlier tosafot.

    “The principle of the gemara is that you need a woman’s ratzon to marry her off — even where the father is in control of the kiddushin. ” no such principle exists per the rishonim i quoted. its just contradictory to what is practice by the rishonim. ratzon has nothing to do with a kettana or naarah it seems just knowledge what is going on.

    ” the woman’s ratzon is there, albeit through a presumption rather than through a mature decision”
    It would seem you have confused knowledge of what is going on and ratzon. the knowledge that this would be best what her father did. the presumption is the naarah but she has no mature decision of acceptance or giving consent.

    shabbat shalom and thank you for your patience of this am haaretz.

  101. Ruvie:

    We have a basic difference in how to understand Tosafos. I don’t think it is fruitful to respond to each and every point until you address this question:

    What was Tosafos’ initial question? Why does Tosafos think initially there is a contradiction between the din of Rav and the prior gemara of Tav le meitav tan du? IOW, if tav le meitav applied to a ketana (as Tosafos originally thought), then why would that obviate Rav’s issur?

  102. A father can mekadesh a ketanna or naarah. however suggests rav that a man she see his wife before he mekadesh her and a kettana should not be mekadesh until she is of age. this all to do with civility of life and really is not enforceable under any circumstances. there are no punishments or consequences. i see a moral imperative stated as an assur since all is valid. also many geonim viewed: since there is no punishment it is an ETHICAL violation.

    What is the difference between this and saying that the father has violated v’ahavta le reiecha kamocha? (That has not punishment either, nor would such invalidate the kiddushin.)

  103. Tal – my basic point even in the way you learn tosafot is that its not trying to uphold the integrity of the psak in the gemera – something that it did in avoda zara. surely, you can see the difference in approaches between tosafot here and in avoda zara 2a. that is my issue with your tosafot finds the psak in the gemera binding comment.

  104. tal – “What is the difference between this and saying that the father has violated v’ahavta le reiecha kamocha”
    its a moral issue which the rambam and tosafot didn’t abide with. the fact that the rambam changes it from assur – says it all (that the psak in the gemera was not binding). i think your lomdishe approach is not bad actually but tosafot doesn’t seem to abide by it (or use it).
    lastly, the v’havta – according to the rishonim – doesn’t seem to apply to the naarah or the kettana.
    i think the gemera’s focus is on the father on what he can do and what the gemera would like him to do but is powerless to even be over on a derabbanan.

  105. Ruvie, please answer my question at 10:10 a.m.

  106. Tal – how do you explain the rambam, meiri, rashba and sefer hasidim viewpoint? my issue is your philosophy of not going against the psak of the gemera. i do not think anyone believes that as a general k’lal for rishonim including tosafot. i happily agree with you that tosafot does that in avoda zara (with clever interpretation and rejecting geonim and rashi’s approach) – will you agree on part of what i am saying. is there any common ground between our approaches?

  107. tal – ” if tav le meitav applied to a ketana (as Tosafos originally thought), then why would that obviate Rav’s issur: al regel achat – you would think that a father who can make a naarah subserviant to his demands – since she would marry anyone with a heart beat -should also be in control of a kettana life.

  108. tal – please answer my 10:46 question – on the assumption that we can’t go against the psak din of the gemera – does it apply to their wording? were they aware of your k’lal? are all deviations from the psak in the gemera upholding internal principles and never disagree with the bavli? i wonder how many believe in this concept – i ask this seriously (its just foreign to me).

  109. tal – ” if tav le meitav applied to a ketana (as Tosafos originally thought), then why would that obviate Rav’s issur: al regel achat – you would think that a father who can make a naarah subserviant to his demands – since she would marry anyone with a heart beat -should also be in control of a kettana life.

    What in the world does this mean? Maybe I am too busy now to focus, but I don’t even understand what you are saying and how it relates to Tosafos.

    Furthermore, tav lemeitav was applied by the gemara to an ADULT woman deciding to marry a man on her own. It has nothing to do with overriding her will.

  110. Tal – 10:11 question: “the father has violated v’ahavta le reiecha kamocha ” – i am not convincedthat this concept applies to the father at all in any cases. i maybe wrong on this but a father has special status with his daughters – see miun as an example.

  111. tal – sorry my bad on earlier comment (tan l’meitav) need to look at it later – cooking for shabbat. can you answer my previous comment 10:46.? some reason i don not think you will.

  112. tal – please answer my 10:46 question – on the assumption that we can’t go against the psak din of the gemera – does it apply to their wording? were they aware of your k’lal? are all deviations from the psak in the gemera upholding internal principles and never disagree with the bavli? i wonder how many believe in this concept – i ask this seriously (its just foreign to me).

    Other than situations where minhag overrides a gezeirah or takkanah, the horaah (that is the correct term) of the gemara is final and binding like the horahh of the beis din ha gadol. That is what the Rambam says at the beginning of Mishnah Torah.

    What Rishonim and acharonim do often do is (a) elucidate the gemara to have a more subtle underlying principle than one might suppose at first glance or (b) state that facts and circumstances change, and hence while the principle of the gemara still applies, the bottom line psak has changed because of a change of facts. Or a combination of (a) and (b). Neither of these is paskening against the gemara, although historians would say it is.

    I don’t see why the Tosafos we have been discussing does not fit into this easily. The gemara says you may not marry off your ketanah daughter until she matures enough to say she wants the marriage. You describe that as a ethical impetus, I believe it is merely an application of v’ahavta le reiecha kamocha, or perhaps lifnei iver lo titein michshol. In any case, to use your term, ethical, it means bein adam la chaveiro — or here between a man and his daughter.

    Now let’s take that a step further. Nu, what is so unethical about marrying off your daughter to someone she doesn’t want? Obvious answer is, you are setting her up for a life of strife, possible even hatred of her husband. Certainly doing her a bad turn.

    Now let’s say that in the centuries since the gemara was written, the golus has become much worse, and there is a real fear that, although today I am in a position to marry off my daughter nicely (with a nice dowry, etc.), next year the marauding Crusaders might decide to drive the entire Jewish community out, leaving us all penniless refugees. (It happened many times in the Middle Ages). If that happened, said daughter will likely never marry and be left a spinster.

    Meanwhile, today, I have some money, enough to provide a nice dowry, and I have a proposed shuidduch with the son of my neighbor down the block, seems like a nice boy (let’s say he is 14) from a nice family. My daughter is now 10, a ketanah, and cannot say “rotzah ani.” Acc. to the gemara.

    So what is the ethical impetus in this situation?

    I believe what Tosafos is saying is that in this situation, it is more moral/ethical to marry her off, since otherwise the chance of spinsterhood has increased greatly.

    This is a change of circumstances as per (b) above.

  113. WRT the Rambam, who paskens this din as “aino rauy,” that is not overruling the gemara, it is interpreting it. Why the Rambam says that is a good question, but it is his understanding of what the gemara means, not his determination to pasken against it.

    There are many cases where the wording of the gemara does not mean literally what the words say. For example, the gemara in Shabbos says repeatedly “R. Shimon leis lei muktzeh.” — R. Shimon does not have the laws of muktzeh. Does that mean that acc. to R. Shimon (whom AFAIK all Rishonim pasken like), there is no such thing as muktzeh? That the book “Laws of Muktzeh on Shabbos” has nothing inside?

    No, it does not mean that. The gemara itself says that R. Shimon agrees that certain things are muktzeh.

    All it means is that certain types of muktzeh (which R. Yehudah does hold of) he does not.

    So sometimes the language of the gemara is overstated or has to be read more subtly. (There are probably many other examples of this, it is the first one that popped into my head.)

  114. Tal – 10:11 question: “the father has violated v’ahavta le reiecha kamocha ” – i am not convincedthat this concept applies to the father at all in any cases. i maybe wrong on this but a father has special status with his daughters – see miun as an example.

    Are you serious? Just because the Torah made the father in charge of his daughter’s marriage (and work — as per amah Ivriah), does that mean he can abuse her any way he wants? If some absolutely awful, abusive man happens to be rich, and offers the father a huge kessef kiddushin, the father can just take it and not worry that his daughter will be miserable the rest of her life? And that does not violate v’ahavta le reiecah kamocha?

  115. tal – ,”does that mean he can abuse her any way he wants? ”

    yes according to the meiri – especially the way it interprets til she gets older. from the responsa at the time of maharam, meiri and rashba it seems the daughter has no say or even has a right to knowledge. it seems not uncommon for the father to mekadesh the daughter of business trips abroad. the issue of the teshuvot is when after being mekadesh abroad by the father sometimes the mother also mekadesh her at home – its was a problem.
    but i agree with you the way you want to interpret it. i just do not think tosafot wen that way to explain their minhag hamakom which would be the exception to the rule – or a side track of it.

  116. tal – “Other than situations where minhag overrides a gezeirah or takkanah…” opens your original comment to wiggle in any way one wants. i do not really disagree – rather i see tosafot doing the upholding as in avoda zara and justifying minhag hamakom in kidushin. so we really are not far apart. do you see a difference in the way tosafot reads each gemera differently and i feel its not the same logic?

  117. tal – ” it is his understanding of what the gemara means, not his determination to pasken against it”
    it will depend on what reasons or other sources the rambam relied on. didn’t have a chance to check the nosei kalim on this yet. obviously, he had a reason to diminish the assur – i wonder why he did it.

  118. tal – “Neither of these is paskening against the gemara, although historians would say it is.” on the face of it they are partially right – there is deviation from it. however, as you know halacha’s internal system allows for modification based on it own internal logic. to use its not deviation per say but interpreting given new conditions. to a historian if it looks like a duck its a duck. to the posek its creative understanding of the under lying principle or perfering one gemera over another or seeing one tension of greater importance than other.

  119. tal – “Neither of these is paskening against the gemara, although historians would say it is.” on the face of it they are partially right – there is deviation from it. however, as you know halacha’s internal system allows for modification based on it own internal logic. to use its not deviation per say but interpreting given new conditions. to a historian if it looks like a duck its a duck. to the posek its creative understanding of the under lying principle or perfering one gemera over another or seeing one tension of greater importance than other

    Now you are saying what I have been saying, only in different words.

  120. anon – have i said anything differently?

  121. do you see a difference in the way tosafot reads each gemera differently and i feel its not the same logic?

    Tosafors in Kiddushin is a change-in-circumstance argument, type (b) as listed above, while Tosafos in AZ seems primarily an interpretive exercise, a type (a) argument, as per the above. (Although it has been a while since I learned AZ)

  122. anon was me.

    Re the Tos in Kiddushin, let me try one more time, with something a bit quirky. Do you remember the Star Trek episode where Spock goes down to some planet and gets infected by some alien bug, which drives him mad and will end up killing him. Then they discover that intese light will kill the bug. After they cleanse the planet, Dr. McCoy puts Spock in an intense light chamber and kills off the bug, saving Spocks life. Unforunately Spock comes out totally blind. When McCoy tries to apologize, Spock says something like “Dr., you have made me lose my eyesight to save my life. Overall that is a fair exchange.” (In the end, Spock recovers his eyesight, this is Hollywood after all.)

    Blinding someone usually is the height of cruelty. Doing so in order to save his life can be a great favor. Wht is a great cruelty in one set of circumstances can be a great favor in a different set.

    Mutatis mutandis, marrying off a daughter when she is too immature to agree to the marriage can be a cruelty. Doing so when, because of the circumstances, the likely alternative is spinsterhood, can be a great favor.

  123. Tal – “Tosafors in Kiddushin is a change-in-circumstance argument” – don’t disagree – just do not need to try to find the solution that tosafot is upholding any principles in the gemnera because i do not think they are. if so, they would try to do what they did in avoda zara. but please understand, avoda zara is also a change in circumstances – per rashi and geonim – just tosafot found a clever way to interpret the gemera and thereby upholding. shabbat shalom and thanks for your time – the salmon/tuna must be bought now before its too close to shabbat. you see we are not that far apart just explain things in a different language but i do believe in if it quaks its a duck – i just try to understand the duck.

  124. “Tosafors in Kiddushin is a change-in-circumstance argument” – don’t disagree – just do not need to try to find the solution that tosafot is upholding any principles in the gemnera because i do not think they are. if so, they would try to do what they did in avoda zara

    Here we disagree. A change in circumstance may or may not mean a change in the psak. The circumstance has to be relevant to the halakha — which means you have to understand the geder ha din in order to be able to determine whether the new circumstance changes anything or not.

  125. Tal – “Doing so when, because of the circumstances, the likely alternative is spinsterhood, can be a great favor.” nice analogy. where do you find that rav would agree to that and not say the kettana is off limits. lets not kid ourselves we need to look at how people were marry in those days. naarah and kettana were treated the same. rav just objected to the kettanah situation. who says that doing her a favor should change the psak? that is where we differ on reading tosafot and the back into the gemera – the other rishonim weren’t as nuanced.

  126. tal – “A change in circumstance may or may not mean a change in the psak. The circumstance has to be relevant to the halakha — which means you have to understand the geder ha din in order to be able to determine whether the new circumstance changes anything or not.”

    i wonder you can do the same to all the situations i reference to – maariv during the day etc where many rishonim couldn’t find a good reason or the did but they knew they were trying to justify after the fact so not accuse jews to be sinners.

  127. Tal – “Doing so when, because of the circumstances, the likely alternative is spinsterhood, can be a great favor.” nice analogy. where do you find that rav would agree to that and not say the kettana is off limits.

    Two ways, actually:

    1. The whole basis for Rav’s halakha is an ethical one, as you have indicated. Marrying off a ketanah is doing her a bad turn, as I have explained. Where circumstances change such that it is doing her a favor, then it is muttar.

    2. The change in circumstances means that we presume the girl would want to get married anyway — a kind of super tav le meitav tan du.

    Go back to the beginning of Tosafos and their question. You still have not explained that. That is the key, IMO.

    (For what it is worth, Tosafos understood that Rav was saying you cannot marry off a ketanah because she is too immature to know if she wants the marriage. She cannot express her ratzon — ad she tigdal ve tomar rotzah ani.

    His question is, but we can presume she wants to the marriage based on tav le meitav tan du. The principle supplies her ratzon. So why should it be ossur — she presumably would want the marriage based on tav le meitav, even if she is too young to know it.

    That’s why Tosafos has an issue — if tav le meitav applies, there should be no issur. That’s the crux of understanding Rav acc. to Tosafos.)

  128. tal – “she presumably would want the marriage based on tav le meitav, even if she is too young to know it.” this is were we part company. i think rav would say she is not in the parsha under any circumstances – and tosafot can’t put her into the parsha nor do they supply your answer. the fact that she is too young we can’t assume anything til she is older – not that jewry ever care for rav’s edict it seems. we see from the geonim that this was never universal centuries before tosafot – see teshivot of r’ sheirira hagaon.

  129. Ruvie, we keep coming back to the same point. What is Tosafos’s original question?

    Acc. to you, Rav categorically excluded a ketanah — she is “not in the parsha under any circumstances.” OTOH, tav le meitav was stated in teh gemara about an ADULT woman (in contrast to an ADULT man.) So there is no stirah at all — Rav is talking about a ketana, the other gemara about an adult. With your understanding, Tosafos never had a question and we don’t need their answer.

    This leads one to think that Tosafos had a more subtle understanding of Rav than you posit.

  130. tal – ” Tosafos never had a question and we don’t need their answer.” you would think that since it works by an adult shouldn’t tkal v’chomer work with a kettana – surely since she is under the runric of her father – should he not have the right to agree what is best for future and not remain a spinster – why doesn’t it work is the question and why doesn’t the gemera ask this question – is tosafot’s first issue.

  131. tal – look at he gemera before tav l;meitav – since a woman can be mikadeshet via a shliach but a man must see his bride why doesn’t the same apply to the woman – tav l’ meitav.
    then since a father is like the daughter and can use a shliach then why doesn’t that work for a kettana? i am doing this from memory – so correct if i err.

  132. Let’s not work from memory. Review the gemara and Tosafos over Shabbos. Bli neder I will do the same.

    Good Shabbos.

  133. Tal- after spending sometime over Shabbat on this subject I find your reasoning on tosafot even more implausible as well as your understanding of principles in the gemera. I would infer from tosafot itself that it rejects your reasoning outright.

    Tosafot wonders why tav l’meitav doesn’t operate on any female regardless of age. Surely, every girl will grow to eventually love the man she marries regardless if she saw him before chuppah – that reis lekish reason why tav l’meitav should work in every instance. Since the gemera does not even use this for a hava amina tosafot needs a reason. Why isn’t Tov l’meitav at least on the table? Why is it deficient ?

    As to your insistence that ther some super tav l’meitav working because of v’ahavta – and tosafot is upholding a principle and the current minhag is somehow in accordance with the gemera: please read tosafot clearly- it’s justifying it for economic reasons period. This not lomdish- more on that later- this obvious. If tosafot agreed with you it would have used a super tav l’meitav to be in accordance with the gemera but it knew that doesn’t work. More later

  134. tal – from a lomdish side you must conceptualize the categories and see what fits – from the maskana – into each box. it seems from the halacha that a father can mekadesh both his kettana and naarah without her consent. it also seems that a kettana cannot be mekadesh without the daat of the father – even to see bedieved there is no kiddushin after the fact. so it would seem that tav l’meitav would have to operate on the kettana via the father to be effective. bit the father is the one that is not married to the man – so he cannot grow to love him – hence she is not in the parsha. tosafot supplies a different answer in that she is liable to change her mind at that age and therefore too immature for tav l’meitav to even be operative. still tav l’meitav only works on a ishah for its inherent logic and that does not transfer to anyone that cannot be mekadeshet by herself or via shaliach – like a kettana. it seems that eventhough a kettana may grow up to want to be marrried to abyone in general – at the time of mekadeshet she has to have daat for that to work – and she doesn’t here. i think tosafot answer is still insufficient to explain why there is no give in take of this in the gemera – based on tosafot’s reasoning the gemera should have ask the question as a hava amina and then rejected it – unless the gemera viewed it as a klutz kasha – and peshita she is not in the parsha so there real was no question to begin with.

  135. tal – “1. The whole basis for Rav’s halakha is an ethical one, as you have indicated. Marrying off a ketanah is doing her a bad turn, as I have explained. Where circumstances change such that it is doing her a favor, then it is muttar.

    2. The change in circumstances means that we presume the girl would want to get married anyway — a kind of super tav le meitav tan du.”

    1.rav tried to limit the rights of the father given to him by the bible and later (after all he can still mekadesh his daughter against her will not matter what rav says – its effective). when circumstances change according to tosafot – economics and minhag hamakom trumps rav edict to the side. there is no mention or idea of doing her a favor. its the father the favor is for not the daughter. its still assur but the prohibition is weak to begin with and minhag hamakom is justify according to tosafot because of perceived changing economics and the galut worsens every day.

    2. change in circumstances justify not listening to rav. if you said was true then everyone would use it push aside more strongly rav’s edict. no one believes there is this principle that you fail to prove could be operative. also, econoimic circumstances would not make it active – the inherent logic would and it doesn’t exists. the logic and the boat has so many holes its sinking.

  136. tal – please feel free to bring this to a talmid hachem or lamdan of your choice for a second opinion. curious to what they would say.

  137. Ruvie:

    I think we have beat this to death. Briefly, here is my understanding:

    1. The basis of Tosafos’ question is that the same issur (or basis for issur) for a man to marry a woman without seeing her applies to a ketanah. The former is stated on the same page of gemara above, and in fact also in the name of Rav Yehudah amar Rav. In both cases, the person may come to hate his/her spouse and the Torah says veahavta le reiecha kamocha. (In the case of the father marrying off the ketanah, the issur may be linei iver — putting his daughter in a situation where she will hate her husband.)

    Thus the prior gemara informs this one — in both cases there is a concern that someone will enter a marriage without full consent and end up hating there spouse, a serious prohibition.

    BTW, the Rambam, interestingly in both cases presents the issur as “eino rauy laasos kein.”

    2. Tosafos question is that tav le meitav should mean that the ketanah will accept the marriage, just as the adult woman will accept the marriage. He answers that the difference is that the adult woman agrees to the arrangement — part of her decision is tav le meitav. The ketanah is too immature to make that decision, so she may change her mind.

    3. The Tosafos Ri Ha Zaken (printed in some gemaras) notes the view of the Raavad which is similar to what you quote in the name of the Meiri that when the girl matures, tav le meitav means that she will accept her father’s choice — that his will overrides her. He rejects that pshat because the gemara clearly states that one must wait until the girl matures and says she wants the marriage — ad she tigdal ve tomar rotzah ani be ish Ploni. This means that even for a naarah, one must obtain her agreement — not asking a naarah is no better than asking an immature ketanah.

    IMO, Tosafos on the daf is in accord with the view of Tosafos Ri ha Zakein — you need the girl’s agreement, or else she may end up in a marriage where she hates the husband. Tav le meitav only works where the woman agrees to the marriage and is mature enough to do so. Tav le meitav is simply a consideration in the woman’s agreement (but not a man’s!) — not, as Tosafos supposed in the question, a free-floating chazakha that means we assume that women will always accept any marriage no matter what.

    4. There are acharonim who quote other gemaras at the end of Kiddushin and from Kesubos which seem to indicate that the issur of Rav was not accepted or is not categorical.

    The Bach and the Korban Nesanel hold lehalachah that a ketanah who is a pikachas and almost a naarah may be relied upon to consent to the marriage.

    5. Clearly Tosafos says that the reason we do not follow Rav’s statement is changed circumstances, worsening of the galus, and the prospect that if we wait, the father may become penniless and not be able to fund the daughter’s dowry. The question is, what is the halakhic force of that new circumstance.

    Your view is simply that it is a shaas ha dechak allowing us to simply ignore a din in the gemara (assuming it is even a din and not an “eino rauy” type statement like the Rambam.)

    In my view, the changed reality undermines the whole basis for the original issur — which is base on veahavta le reiecha and perhaps also linei iver. I have outlined the reasoning above and see no reason to repeat it.

  138. One last point. When Tosafos justifies the practice in his time, and explains about the worsening of galus, he ends with a statement that the daughter may never marry — ve teishev bitto agunah le olam. If the matter were purely economic, then why bother mentioning that she may end up an agunah forever? It sounds like it is better to take a chance on a marriage that may or may not work, rather than a chance of never marrying at all.

    This is not an absolute proof, but that is how it sounds to me.

  139. tal – agree with beating it to death. you seemed to have brought our understanding closer.

    my major issue – can you demonstrate that tav l’meitav can ever operate on a kettana? and if it did shouldn’t tosafot have used it for justification? your reasoning is good enough that tosafot should have used it to justify NOT going against the gemera CONCLUSION OF RAV.

    “The Bach and the Korban Nesanel hold lehalachah that a ketanah who is a pikachas” yes, they read rav literally till she is older and can say – not till she is a gedolah (which is interesting in itself)

    lastly, the minhag – imho – developed (or rav’s edict was never 100% effective) before the rabbis justified it.

    kol tuv – thank you for spurning me on to spend time learning the sugya.

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