by R. Gidon Rothstein
Peri Megadim subtitles the fifth part of his introduction hashmatot, omissions or addenda, meaning this is a series of notes on the previous parts. He does not order them as they appeared in the original Petihah, just tells us where he is adding [a more dedicated summarizer than myself would go through the whole fifth part, pull out the comments on the first part, then the second part, etc. Sorry, that’s not me. You get what you get, and you don’t get upset.
Also, theoretically, I would fully review the pieces he is supplementing. I am just going to include points he makes here where I see something new and interesting.
His first comment refers back to I;25. He had quoted a responsum of R. Shlomo b. Shimon, the son of Tashbetz, suggesting that rabbinic lashes too require hatra’ah, warning by the witnesses (like with Biblical lashes), when the sin violates a rabbinic rule instituted as adjunct to Torah law, such as not eating milk and fowl cooked together.
Where the lashes are for other reasons—such as to maintain communal discipline—no warning is necessary. [Peri Megadim does not give an example; I suggest one would be where the Jew violated the Torah in a way we know the sin was deliberate but evaded the Torah punishment.] Here, he adds a question: we have learned a few times about kim lei, where a person’s incurring a higher form of punishment absolves him/her of a lighter one, even if the more stringent one is not in practice going to happen, such as where someone violated a capital crime be-shogeg. Although it was unwitting, and will not be punished, such a person would not receive lashes.
What about if the act also deserved makkat mardut, rabbinic lashes? Peri Megadim phrases the question as a matter of the possibility rabbinic lashes are more stringent; R. Eisenberger in the notes suggests the lashes may be a possibility because they are less stringent, where I would have thought it might be they are part of a completely different framework (communal discipline rather than punishment). That we can put the issue three ways shows the underlying lack of clarity about kim lei, how and why it negates other punishments, the uncertainty Peri Megadim sought to highlight.
Two Kinds of Situational Confidence
In the third part of the Petihah, Peri Megadim had discussed capital punishment. Here, he notes a responsum of Terumat Ha-Deshen 1;207, who thought presumptions about how the world works can be relied upon in sentencing a Jew to death. In his example, halachah assumes a child who lives with an adult, relies on that adult as biological offspring would, is that adult’s child, barring other information. Were, Gd forbid, the child to grow up and have a marital relationship with the adult, courts would take for granted this was incest and act accordingly [without needing further verification of the relationship]. The hazakah, the general assumption of how life works, can be accepted unless evidence is offered otherwise.
That is not as true with hazakot established by a particular incident. The first kind of hazakah he terms hazakah mi-rubah, built on the ordinary course of life, this less certain hazakah called a hazakah de-sha’ata, of the hour, built on this particular situation. [He does not give an example; it would be wherever the continuation of an existing situation matters, such as if a person was still alive at the time of some event.]
The hazakah me-ruba (his example is of witnesses signing a document where we are not sure one party to the transaction had reached majority; we have a hazakah witnesses check such matters out, sign only documents executed for adults.) It is surprising because we generally say ein holchin be-mamon ahar ha-rov, we do not rule on monetary matters based on the majority of cases.
Peri Megadim argues a hazakah based on majority means the exceptions are so unusual, they are irrelevant to our assessment, do not even count as a minority. The majority of children being with their biological parents is so great or, for another example he gives, the prevalence of haverim, those careful about halachah, tithing produce before selling or giving it to someone else, is so great, the other option need not be considered. (It’s not following the majority, it’s this hazakah makes it the reality until proven not.)
Sometimes There’s Not Even a Doubt
The fourth part of the Petihah had discussed safek derabbanan le-kula, we rule leniently in situations of doubt regarding rabbinic law. Here, Peri Megadim points to a comment of Mishneh Le-Melech, Laws of the First-Born 4;1, who noted the idea only applies where an occurrence raised the rabbinic doubt.
For example, if someone went to mikveh (the event) and later was unsure whether something on his/her body had blocked the water from reaching everywhere, or was unsure whether the mikveh had had enough water, or even whether s/he had fully immersed, we could apply the rule of leniency. We have an established event, his/her immersion, and doubts about its efficacy at a rabbinic level, so we apply our rule.
Where we are unsure if the person had even gone down to the mikveh to immerse, though, [say, they said they were going to, and are now unconscious so we cannot ask], it’s not yet a safek, a doubt, to which we can apply the rule.
Take the Bad with the Good in Children
Back in Part II, Peri Megadim had questioned if all descendants count as part of the family, even those with a significant halachic handicap. Here, he quotes a R. Yehiel Bassan (a 17th century Chief Rabbi of Turkey), who thought zera pasul, unfit lineage, such as a mamzer, did not count as zera, as halachic offspring.
Tosafot Yevamot 22b took a similar perspective, said the Gemara needed the inference of ayen la, see if a man has any descendants before requiring his widow to undergo yibum or halitzah, because we normally only look at kosher ones. Rambam seems to includes a Jew who has abandoned observance or is an idolater among those who count as brothers who necessitate yibum (but only because of the extra clause, so otherwise they seem to also be zera pasul, unfit offspring).
When Hannah prays to Gd for a son, she says zera anashim; Rashi adds hashuvim, important. Peri Megadim thinks she added the word because Gd could have given her a mamzer or otherwise defective child, supporting the other side, such a child is also called zera.
Except he then disagrees, without proving it, says zera does not include a mamzer [I think because the mamzer’s descendants throughout history will not be able to marry ordinary Jews, so they are not fully integrated in the nation]. He does agree sin cannot take an individual or community out of the larger nation, as II Melachim 17;20 speaks of Gd being disgusted with zera Yisra’el, where the point is the nation was sinning.
The next few paragraphs make a point each, with no obvious link between them. He says makkat mardut, rabbinic lashes, do not render a person a rasha de-rabbanan, an evildoer at a rabbinic level, unless it comes for an actual sin. Where a woman violated an oath she later found out had been nullified, or someone thought to eat helev, prohibited fat, and later found out it was shuman, permitted, there would be lashes but not an evildoer status.
His next paragraph notes a debate about money one Jew is supposed to give another but is not required to. (Halachah sometimes requires a Jew to pay money to fulfill the will of Heaven, latzet dinei shamayim, but courts will not enforce it.) Where a Jew to whom money is owed takes it by force, the court will leave it with the Jew who took it (that is also true in situations where there is not enough proof either way of to whom the money belongs).
Here, Shvut Ya’akov and Shach thought the dinei shamayim obligation was enough, where Maharshal disagreed. Another option, also presented by Shvut Ya’akov, was that Biblical obligations of this level would not be extracted from the Jew who collected it him/herself, where rabbinic ones would.
Avodah Zarah 14a says lifnei iver, the obligation not to lead others to sin, applies only directly, the person with whom one is currently interacting; Jews may sell items used to violate prohibitions to non-Jews despite knowing they will sell them to other non-Jews, for example, because there is no obligation of lifnei de-lifnei, to worry about the second stage of a situation.
Where the third party is Jewish, however, we do sometimes worry about lifnei de-lifnei. Taz, Yoreh De’ah 151;3 pointed out Jews are not to sell wheat that fell into water on Pesah to non-Jews, lest they sell it (now leavened) to Jews, making clear we do see ourselves as responsible for lifnei iver of a fellow Jew even two steps down the line.
That might be a rabbinic prohibition, as is—according to Shach there, paragraph nine—the impermissibility of extending an item of sin to a Jew who could otherwise get it him/herself. For a non-Jew or a Jew who has abandoned the religion, the rabbis did not obligate us to be as concerned for their spiritual welfare.
Where others will not listen to our pointing out their mistakes in observance, we tend to opt for silence, so as not to have them now be transgressing knowingly. What is explicit in the Torah, however, we say anyway, because Jews are expected to know the Torah itself. Havvot Yair 164 argued that the logic should mean we would not speak up if someone was about to hunt on Shabbat, since the specific category of tzeidah, hunting or trapping, is not explicit in the Torah.
While understandable, Peri Megadim notes it would mean we would not point out almost any of the prohibited Shabbat activities, nor any of the kinds of wounds that make an animal terefah, since they are not specified, nor about any of the ideas taught by the Oral Law. Peri Megadim thinks “explicit” includes all interpretations of the Torah given with the Torah itself [such as that an etrog is the “fruit of the beautiful tree to shake on Sukkot, for an example I thought of], bringing us back, for those keeping count, to the thorny thicket of the types of inferences halachah allows, with the varying levels of law produced. Peri Megadim is saying that laws known by oral tradition are not only full Torah law, they count as explicit in the Torah.
Last for this time, he talks about how far to go with the principle of ein onshin min ha-din, courts do not administer punishments for sins inferred through a kal va-homer, a logical argument from the less extreme to the more, as well as the idea courts cannot punish based on a halachah le-Moshe mi-Sinai, unless we can see it as really included in some piece of Torah (his example is carrying in public, where an oral tradition from Sinai tells us to include this act among prohibited Shabbat activities, inserting it into that existing framework).
More next time!