Finishing the Fourth Part of Peri Megadim’s Petihah Kollelet

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by R. Gidon Rothstein

As he nears the end of this introduction, Peri Megadim seems to have wanted to come back to topics he hadn’t yet finished (and the whole fifth part is addenda to previous points). I have largely avoided pointing out when he refers to other works of his, particularly Ginnat Veradim and Shoshanat Ha-Amakim, which from his references seem to have much overlap. It shows a lifelong and interconnected concern with overall issues of the system, side by side with a deep engagement with specific questions, a balance I think rare and hard to achieve.

Observance for Benefit or Not

In an earlier section, he noted the idea of mitzvot lav le-hanot nitenumitzvah observance is not seen as a matter of benefit, allowing a Jew to fulfill a mitzvah with an item (or by agency of a person) from whom the Jew is not allowed to benefit [such as an item dedicated to a Mikdash purpose, assur be-hana’ah, prohibited for benefit to regular Jews, or where one Jew took an oath not to reap benefit from another, for whatever reason].

Ba’al Ha-Ma’or, an important interlocutor of Rif, claimed this idea did not apply to rabbinic law, that Hazal’s legislated practices did count as benefit. Ran disagreed, especially because Sukkah 29b said one should not shake a lulav taken off an Asherah tree, a tree a non-Jew had worshipped [were a Jew to have worshipped the tree, Gd forbid, we would be obligated to burn it, turning its lulavim into items considered to have no amount to them, because they are envisioned as already burned, and thus completely unusable for lulav purposes).

The Gemara there had to be discussing the second or later days of Sukkot, because the first day has a rule of lachem, the Jew must own the lulav, and were a Jew to own any part of an Asherah tree, even one worshipped by a non-Jew, it would immediately become destined for burning. Since a Jew certainly may not benefit from an Asherah, the Mishnah’s saying such a lulav could work if used (although it should not be done, because it dishonors a mitzvah to use such an item), seems to show even a rabbinic mitzvah—lulav after the first day outside the Temple–does not count as benefit.

[Another example he offers, if a Jew blew shofar on the second day of Rosh Ha-Shanah, another Jew who is mudar hana’ah, forsworn from benefit from that first Jew, could not listen to fulfill the mitzvah, according to Ba’al Ha-Ma’or.]

Items that are assurim be-hana’ah generally do not transfer that status to their purchase monies, Peri Megadim assumes. Were a Jew to sell an item and use the money for a mitzvah purpose, it seems to be effective regardless of the prohibition against benefit. (The Jew will have violated rules against benefit from the original item, but the mitzvah observance will take effect).

He then assumes, without explanation, this is the same as saying the mitzvah observance is effective be-di’avad, after the fact. Were that true, the debate about whether mitzvot constitute a benefit loses some of its significance, because after the fact the observance would work even for the Ba’al Ha-Ma’or, who thought rabbinic mitzvot did constitute a benefit.

A Reason for the Rule

Ritva in Sukkah 31b [Peri Megadim thought it was Rashba, R. Eisenberger says scholars have since come to realize it was really Ritva, Rashba’s student] says the principle means to say hana’ah is where the Jew gains some physical or financial benefit, not the very real but much more disconnected benefit of reward for observance. Rosh Ha-Shanah 28a allowed ritually immersing in a body of water from which one was mudar be-hana’ah in winter, because there are no other benefits.

In summer, when the water also refreshes, immersion would not be allowed. Similarly, as he has noted earlier, lighting Hanukkah candles with prohibited oil saves the Jew the cost of the oil and therefore counts as a benefit. On the other hand, while halitzah frees a widow to marry men other than her late husband’s brother, there is no direct physical or financial benefit, only a change of legal status, and is therefore included in the principle of mitzvot not being seen as a benefit themselves.

Reward in This World

Kiddushin 39b says there is no reward for mitzvot in this world (a reminder that one of Judaism’s responses to complaints or worries about the fairness of life was that Gd did not claim to settle scores during this life, hard as that may be to accept). Tevu’ot Shor assumed the rule included only mitzvot aseh, fulfillment of obligations, religious practices with no punishment in this world either. For prohibitions, where a court can punish, and any other religious aspects with this-world ramifications, Tevu’ot Shor thought there could be reward by Gd in this world as well.

[This builds off an assumption Peri Megadim has noted before, halachah sometimes takes the possibility of punishment as evidence of punishment. For the example I can think of now, violating a capital crime be-shogeg, unwittingly, still exempts the sinner from monetary consequences of the act because of kim lei, only the greater of two punishments attaches to a crime, even if that greater punishment in practice will not be administered. That itself is a surprising idea, and Tevu’ot Shor took it a step further.]

Courts do lash people to coerce them to fulfill a mitzvah, such as sukkah or lulavPeri Megadim points out those are not punishments, because if the opportunity to fulfill the mitzvah passes, the court will stop the pressure on the Jew.

Others (he does not name them) wonder at Tevu’ot Shor’s idea, because the Gemara knows of the possibility of a person recanting his/her prior good deeds, called toheh al ha-rishonot, regrets earlier observances [it means teshuvah isn’t a special gift to help people out of their evil pasts, it’s part of a broader and more thought-provoking idea, Gd gave people the right to write their pasts with their current intentions, for the good or the not]. If so, how could Gd give reward in this world, if the person might later wipe out the past and lose the right to reward for it [an implied justification of Gd’s withholding reward, that we cannot know the role of an action in a person’s life until the race is over, the battle if fully fought]?

Two groups of people might not have this impediment. Avot 5;18 tells us anyone who helps the public find their way to meritorious acts will never have a sin come at his/her hand, and Yoma 38b says if a person has lived most of his/her life without sin, s/he will not then later sin. For such people, Tevu’ot Shor’s idea could work, and reward for avoiding sins would be forthcoming in this world.

When Ignorance Is Bliss

On the topic of sin and punishment, Peri Megadim moves to the issue of mutav she-yihyu shogegin, better to leave someone sinning unwittingly than to point out the issue, have the other(s) ignore it, and now be sinning knowingly. He reminds us of one caveat, if the sin is written explicitly in the Torah, another Jew should speak up anyway [because Jews are expected to already know the Torah, so it does not count as unwitting, I think].

All rabbinic laws are in some sense written in the Torah, at least according to Rambam, who counted lo tasur as a specific prohibition against disobeying Hazal, but each specific rabbinic rule is not explicit, so the Jew could be unwitting for that. Cases of doubt also do not stop a rule from being explicit: as long as the underlying prohibition was explicit, we are required to inform people entering into a possible state of doubt. We do not tell people (who do not know better and would not listen to us) there is an obligation to stop eating a little before Yom Kippur, but we would tell them they must stop eating after sunset, even though the time between sunset and stars showing is a time of doubt.

The idea brings us back to one we discussed long ago, the status of laws derived through a gezerah shavah (where tradition tells us the presence of a word in two contexts indicates the laws of one apply to the other as well), a hekesh (juxtaposition in verses), or a kal va-homer (if a matter is true for a less stringent case, it is clearly true for a more serious one). For all these are likely considered de-oraita laws, Biblical obligations, they do not count as explicit, and we therefore would not disabuse someone about to violate the Torah in those ways (assuming we are confident they would not heed our warnings).

The Cost of Avoiding Sin

Shulhan Aruch Yoreh De’ah 157;1 and Rema Orah Hayyim 656;1 recorded the Talmudic idea a Jew need not (and likely should not) spend more than a fifth of his/her money to fulfill an obligation. To avoid a prohibition, Levush and Beit Yosef wrote, one might be required to spend all his/her money. That applies only to transgressing actively (to avoid eating pork, let’s say), but not to avoiding inactive sin (if it would cost too much to avoid owning hametz on Pesah by inaction, one is not required to take the loss, he says).

How much a Jew must spend to avoid active transgression of rabbinic law is unclear. The prohibition does stem from a Biblical commandment, and Shabbat 156a does allow a Jew to entrust his/her possessions to a non-Jew if s/he is traveling as Shabbat enters and has no place to put it. Asking a non-Jew to act on Shabbat on our behalf in ways we could not is a rabbinic prohibition, seeming to say we need not avoid such a prohibition if it will cost too much. The Gemara justifies the leniency based on the idea a person will be so bahul, so agitated about the situation, s/he might violate a more serious prohibition in that situation.

It implies where the loss is not sudden or agitation producing, this loophole does not exist. Yet Orah Hayyim 307;19 allows having non-Jews save property even from rain, where the homeowner is not bahul, and Shu”t Havvot Ya’ir suggested a Jew would be allowed to actively violate rabbinic laws to avoid bodily but not life-threatening harm. That and more examples leave Peri Megadim unsure of how much a Jew must spend to avoid violating rabbinic rules.

Biblical, Rabbinic, and In Between

Peri Megadim had previously wondered if Hazal’s prohibiting something also uprooted its Biblical feasibility, such as when the only materials a Jew has to cover his/her sukkah  a Jew only has sechach the rabbis said should not be used to roof a sukkah. While Magen Avraham had argued that Hazal did not apply their rules be-di’avad, when there was no other option, Peri Megadim still thinks it possible they did in some cases, such as when Rabban Gamliel’s sons asked him if they could recite Shema after midnight.

We have a well-known rule to act stringently in cases of Biblical doubt, leniently in rabbinic. As is his wont, Peri Megadim wonders about in-between, where a Biblical rule was inferred by use of the middot, the rules for how to derive new law that (according to most opinions) has the status of Torah law. While he thinks we likely rule le-humra, stringently, he reminds us Rambam held the whole principle was rabbinic, meaning in any case of doubt about whether a laws was Biblical, we should rule leniently.

The debate matters in two ways. First, if the idea is rabbinic, there is room to argue the Rabbis only instituted the rule in terms of fulfilling an obligation; where we have a doubt about whether some prohibition is in play, perhaps Hazal did not institute the rule. Second, the idea affects our reaction to a sefek sefeka. Usually, we discuss such a case as a “double doubt” weakening the pull of the doubt. If it is a rabbinic idea, though, there is room to say that after we rule stringently on the first doubt, we are still only left with a rabbinic rule (because the idea of ruling stringently is rabbinic), and we can then rule leniently on the second doubt, because it is now a rabbinic issue.

Where a possible Biblical obligation is in competition with a definite rabbinic one, this question arises. Rosh HaShanah 34b says a Jew should go to where he thinks he can hear shofar blown (because it is a Biblical obligation), even if it is not a certainty, as opposed to going where someone will recite the three blessings of Mussaf, because those are rabbinic [this was in the time before siddurim, so inexpert people had to hear the service].

If it is a sefek sefeka about the shofar blowing, such as where a person already heard the shofar blown with one kind of middle blast, but we are in doubt as to whether it is the correct one, and also about whether this other place has shofar blowing, should the Jew still opt to go there, or where he can certainly hear the rabbinic Mussaf blessings? If safek de-oraita le-humra is a Biblical principle, it should apply to the sefek sefeka as well, where if it is rabbinic, the double doubt says we can rule leniently, and the calculus changes.

Non-Jews and Fellow Jews

We have seen the principle of kim lei be-de-rabbah minei, a person is only liable for the more stringent punishment incurred in an act. Does it apply to non-Jews? Rashi in a few places seems to say yes, which would mean a non-Jew who steals becomes the owner of the item, since stealing is a death-penalty offense in Noahide law. If so, a Jew who purchases that item from a non-Jew can safely consider himself its owner, such as to use it for a wedding.

Skipping a piece on mumarim [we saw them already, and his attitude is enough out of step with current views of nonobservant Jews, it’s probably better to leave it], he comes back the many obligations Jews bear towards each other—ve-ahavta le-ra’acha kamocha, love your fellow as yourself, the prohibition against standing idly as a Jew is killed, the prohibition against misleading a Jew into trouble [the broader version of lifnei iver, not to put a stumbling block before the blind], and the rabbinic ban on mesaye’a, helping a fellow Jew sin even where lifnei iver allows it (such as where the Jew could easily sin himself).

That, with skippings here and there, is the fourth part of the Petihah Kollelet, a section that investigated nonobservance, how to react, what counts, and when we might properly choose not to observe. Next time, we start the fifth part, addenda to his earlier ideas.

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