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Monday, May 09, 2005

2 difficult leniencies in halacha

There are 2 kulos in halacha that are very widely adopted and are very difficult.
1. Chodosh is permitted in חוץ לארץ
2. The fact that you need 600,000 people to make a רשות הרבים

I thought about these now because Pesach just passed meaning that there is no problem of chodosh, and the daf yomi just started learning the first perek of shabbos where the issur of הוצאה is discussed

1. There is a Torah prohibition not to eat any products of the five types of grains specified in the Torah (wheat, barley, oats, spelt, and rye) before the second day of Pesach, the 16th of Nissan, when the Korban Omer was brought. If planted before the 16th of Nissan, it may be used after that time. However, if planted (or actually take root) after that time, it may not be eaten before the 16th of Nissan of the following year. Therefore, wheat etc., planted during the summer and harvested in the fall, may not be eaten until after the next 16th of Nissan, in the spring. During the time that it is prohibited, it is known as "Chodosh", the new grain. When it is permissible, it is known as "Yoshon", the old grain. All grains sold during the spring and the summer can be assumed to be Yoshon, since it is likely that they were planted before the 16th of Nissan. The problem starts to arise when the spring and summer grains hit the market in the fall.

According to all the standard rules of pesak we should pasken that it applies in Chutz laaretz as this is the position of most of the Rishonim (including the Rambam). Everyone relies on the Bach who was matir. In his day and throughout the generations in Europe (as the acharonim say) it was a question of survival, without chodosh Jews would have had a hard time surviving. Obviously today the situation is much different.

The reason why this only recently became a problem in America is because for many, many years America had a surplus of wheat that they would store, and would only sell the older wheat to the millers. Therefore, all wheat was Yoshon. However, approximately 10-15 years ago they sold off their surplus wheat to the Russians, and the new wheat is hitting the market before the 16th day of Nissan. Although they once again have a surplus, the experts say that they are storing the older wheat indefinitely, and allowing the new wheat to come to the market.

Note: in Israel this is not an issue as chodosh is prohibited according to everyone and therefore all the hechsherim are makpid on chodosh.

2. One of the melachos of shabbos is הוצאה, you are not allowed to carry an object from a private domain to a public domain, in addition you cannot carry an object 4 amos in a public domain. The gemara at the beginning of Shabbos (daf yomi), define what is a רשות הרבים. Nowhere does it say that you need 600,000 people. Rashi (Tosafos also) came up with this idea in Eruvin. It is very difficult for a number of reasons, chief among them it doesn't say it in the gemara.

Why is this important? All our eruvin rely on the fact that we don't have a רשות הרבים min hatorah because they use a צורת הפתח (this requires a whole separate discussion which is not for now). Why don't we have a רשות הרבים min hatorah? because we lack 600,000 people (this is a big part of the controversy of the Brooklyn and Manhattan eruv). If we deny this requirement of 600,000 people, then all our eruvin are no good. Again, the accepted principles in psak would dictate that we should follow the more stringent opinion, however the minhag is to be מיקל.

The truth is that by chodosh more and more people are starting to be machmir. If you go into most of the kosher pizza stores in Brooklyn or in Queens you will see a sign קמח ישן. This really requires the kashrus agencies to decide that they want to be makpid on this.

The issue with eruvin is more difficult because without an eruv you condemn the women with little babies to sit inside all shabbos. I know a number of people who they themselves are machmir not to use an eruv, but allow their wife to use the eruv. This is very difficult to me, if you think it is assur how can yu let your wife do it and if you think it is mutar so why are you machmir?

In any case, we find that in these 2 cases the minhag seems to override the halacha.

29 Comments:

At 6:51 PM, Anonymous a pashut yid said...

At first glance it does seem strange that one would be machmir for himself, but maikil for othes.
However, I dont think its a problem. Many people have chumras that the are lenient on in certain circamstances. Kavod Habrios. Kibud AV V'Aim. Tircha Yesira.
Most people that are machmir on the Eiruv, I assume, hold that really its mutar (though, like you said, its wierd). However, since many rishonim, poskim, etc hold its a problem, they take a chumra upon themselves. This is not Tircha Yeseira as they dont need to carry, nor do they feel locked up in their house. But the wife might, so he doesnt insist on her being machmir. Also, being that its a chumra, why does she need to accept all of his chumras?

With regards to passling of all eiruvs, here in Eretz Yisroel, there is whats called mahadrin eiruvin, where they try not to rely on tzuras hapesach, but rather they use "walls" that to the avg person, we dont notice. Buildings, mountains, fences, etc. Of course this leads the way to more and more eruvin in the same city....

 
At 9:00 PM, Anonymous Eliezer said...

The other rishonim set no parameters for what makes up a r'shus ha'rabim?!?

 
At 10:39 PM, Blogger bluke said...

They do set parameters (mentioned in the gemara, the street has to be 16 amos wide, etc.) but those are met in just about all cities today.

 
At 10:40 PM, Blogger bluke said...

Even the mehadrin eruvim in Eretz Yisrael rely on tzuras hapesach in some places, they have no choice.

 
At 1:18 AM, Anonymous Anonymous said...

Although it may be more mehadrin to not rely on tzuras hapesach, it doesn't help for the question of Reshus Harabbim. You cannot make an eruv to cover a reshus harabbim. It cannot be done. An eruv only permits a rabbinic prohibition, so to say that an eruv can cover a standard 16 amos wide street relies on the opinion that 600,000 people have to walk through it for it to be a Torah prohibition.

Yoshon is definitely getting a revival. Some people are makpid on yoshon but not cholov yisroel, even though there is much more to forbid the latter over the former.

 
At 3:20 AM, Anonymous Anonymous said...

It all depends on how you look at it. I do not carry and my wife does. It is not that I do not carry so as to be machmir, but rather I don't know if Rashi or the Rambam was correct. So as to not play games, I do not carry. However, I am not positive that the this is truly required, so I don't see fit to force my wife to remain indoors all of Shabbos. I don't really see any inconsistency here. Regarding the comment that there's more reason to keep cholov Yisroel than chodosh, I find this a bit surprising. While it's true that one can claim that there's a machlokes hasugias (or so I understand), most rishonim hold that there's a prohibition here from the Torah. Noone (I think) holds that cholov Yisroel is min hatorah and I'm under the impression that R. Moshe's leniency is very solid (not having learned it myself).

 
At 5:38 AM, Anonymous Anonymous said...

"However, approximately 10-15 years ago they sold off their surplus wheat to the Russians, and the new wheat is hitting the market before the 16th day of Nissan. Although they once again have a surplus, the experts say that they are storing the older wheat indefinitely, and allowing the new wheat to come to the market."
"The truth is that by chodosh more and more people are starting to be machmir. If you go into most of the kosher pizza stores in Brooklyn or in Queens you will see a sign קמח ישן. This really requires the kashrus agencies to decide that they want to be makpid on this"

I think the error here is due to misinformation. There is chodosh flour on the market, but many major brands are yoshon. I began checking so I could know if I could give baked goods to those who were makpid on yoshon, and now check every year, and have yet to have a problem with the brands of flour etc that I buy.

this:

"Yoshon is definitely getting a revival. Some people are makpid on yoshon but not cholov yisroel, even though there is much more to forbid the latter over the former."

is probably due to perceived convenience.

 
At 5:39 AM, Anonymous Anonymous said...

"is probably due to perceived convenience."
i.e. it isn't that hard to find yoshon flour (its hard to davka find chodosh) and there are equivalents for most baked goods. but there are still specific cholov stam items with no cholov yisroel equivalent. (this is just speculation of course).

 
At 7:37 AM, Anonymous Anonymous said...

"It is not that I do not carry so as to be machmir, but rather I don't know if Rashi or the Rambam was correct. So as to not play games, I do not carry. However, I am not positive that the this is truly required, so I don't see fit to force my wife to remain indoors all of Shabbos."

That would seem to imply a Sofek in an issur D'oraisa, so being lenient wouldn't really be appropriate. Normally such lieniencies are said where you were sure that Min HaDin the halacha is that 600,000 is required, but you are stringent where possible, but since it is a big Tircha for your wife, she isn't. That is more the kind of reasoning which underlies a heter of hefsid meruba. The halacha is really like the lenient opinion, so the stringency is dispensed with in the face of a serious loss.

Although there are things that women are customarily more lenient than men (leaning at the Seder, for example) this one is strange because 1) it is a question of a D'oraisa and 2) it is public. It also just *feels* weird, even if it were perfectly OK.

"Regarding the comment that there's more reason to keep cholov Yisroel than chodosh, I find this a bit surprising. While it's true that one can claim that there's a machlokes hasugias (or so I understand), most rishonim hold that there's a prohibition here from the Torah. Noone (I think) holds that cholov Yisroel is min hatorah and I'm under the impression that R. Moshe's leniency is very solid (not having learned it myself)."

It is true that chodosh is a question of a Torah prohibition, but the Bach permits it pretty strongly, and does not encourage people to encourage the churma by others. On the other hand, regarding cholov yisroel Rav Moshe writes that a Ba'al Nefesh should be strict, and even kasher from the very milk he permits, yeshivos should spend extra money on cholov yisroel because it is part of their chinuch to teach children to be machmir, and in the letters published after his passing, he writes that the heter is only B'dieved (the editor inserts several lines saying that this contradicts the previous letters). So here we have the very one most credited with the heter not really encouraging the use of the heter, and wanting children to be raised not to rely on the heter. That was the basis for my comment.

 
At 10:00 AM, Blogger bluke said...

Rgearding chodosh vs. chalav stam, I don't see how you can copmpare the 2. Cholov stam is a din drabbanan where R' Moshe was matir (although he said you should be machmir), R' Soloveitchik and his students are mekil even l'chatchila. Chodosh is an issur d'oraysa, the Bach may be matir and the minhag may be like that but it is still a very difficult shita. The mishna berura states that a baal nefesh should be machmir.

In short, one is a safek issur d'oraysa with a weak heter the other is a din d'rabbanan with a strong heter

 
At 10:03 AM, Blogger bluke said...

It all depends on how you look at it. I do not carry and my wife does. It is not that I do not carry so as to be machmir, but rather I don't know if Rashi or the Rambam was correct. So as to not play games, I do not carry. However, I am not positive that the this is truly required, so I don't see fit to force my wife to remain indoors all of Shabbos. I don't really see any inconsistency here.

The inconsistency is that you seem to hold that there is a safe issur d'oraysa of carrying so that you are machmir. If that is the case how can you permit your wife to do a safek melacha?

 
At 10:05 AM, Blogger bluke said...

it doesn't help for the question of Reshus Harabbim. You cannot make an eruv to cover a reshus harabbim. It cannot be done.

This is not really correct. If you take a street that is a reshus harabim and enclose it with real walls it will become a reshus hayachid. You can't build an eiruv with the kinds of mechitzos that we use, but if you have real walls that people cannot go through the area truns into a reshus hayachid.

 
At 10:11 AM, Blogger bluke said...

The Aruch Hashulchan in סימן שמ"ה makes a fascinating point. He quotes a Teshuvas Mishkenos Yaakov that he agrees with, that the overwhelming majority of rishonim hold that you don't need 600,000 people. He says however that the minhag for hundreds of years in Europe was to rely on eruvin which are based on the fact that it is not a reshus harabbim d'oraysa because there aren't 600,000 people. He writes: כאילו יצתה בת קול that we pasken like Rashi. He then goes on to come up with another that our cities are not a reshus harabbim.

 
At 5:12 PM, Anonymous Anonymous said...

"In short, one is a safek issur d'oraysa with a weak heter the other is a din d'rabbanan with a strong heter"

I would charaterize it the other way around: one is a chashash issur d'oraysa with a strong opinion that permits it (the bach), and the other is a din d'rabbanan with a weaker heter (where the matir says to be machmir to the point of kashering - something the machmirs on Chodosh don't say). Unless of course you are talking about R' Soloveitchik, but those who are being makpid on chodosh but not cholov yisroel these days don't rely on his heterim, they will quote R' Moshe, but not him.

"This is not really correct. If you take a street that is a reshus harabim and enclose it with real walls it will become a reshus hayachid."

But that is not from the din of eruv, that is because you break apart the reshus harabim. It is the conceptual equivalent of narrowing the street to less than 16 amos.

 
At 5:18 PM, Blogger bluke said...

I guess we will agree to disagree. The Bach to my mind cannot be called a strong heter. It is a daas yachid that was accepted because it would have been very hard/impossible for the Jews of Europe to live without the heter (see the Taz for example there)

What do you think an eruv does? An eruv does not work like magic. An eruv creates mechitzos, the problem with an eruv is that the mechitzos used are weak ones (people can walk right through them) and therefore cannot be used on a reshus harabim d'oraysa.

 
At 5:39 PM, Anonymous dave said...

I don't know the context of Rav Moshe ZTL's letters, but I separately asked both his sons, Rav Dovid & Rav Revain, about eating Chalav Stam lechatchilah, & both said it was peritted.

 
At 5:43 PM, Anonymous dave said...

P.S. All you 'anonymouses'. I can't keep track of who is saying what. Just use a fake (or even your real first)name! Don't worry. No one is going to know who are anyway. (Meaning, your kid won't get thrown out of yeshivah).

 
At 6:27 PM, Blogger Mississippi Fred MacDowell said...

A chumra doesn't imply that you think it is otherwise prohibited.

Here is a statement by "R. Shmuel of Kelme (1797-1868, a Lithuanian talmid hakham, one of the few who lived in accordance with the halakhic practices of the Gaon of Vilna:

My father, may his memory be blessed, was not from those who [only] ate yashan, nor did he [only] eat matzah shemurah, and he also walked in polished shoes. And I am from those who restrict themselves to yashan, who [only] eat shemurah, and I do not walk in polished shoes. And those who follow me might add even more cautionary restrictions than I did. But, in the same way that it is known that I do not compare to my father z"l even as vinegar to wine, so it is possible that those who follow me will not fear Heaven more than I do. And the cause of the matter is as follows... my father, may his memory be blessed, whose fear of and trembling from God was as a burning flame, and his piety was exceedingly great, did not need to inspire his fear, and therefore found it proper not to engage in excessive piety. But we, who do not have the inner flame as he did, may we achieve our goal to be inspired in the fear of God via [accepting upon ourseles] many cautionary restrictions.

"He found in his less accomplished, albeit educated, father the inner flame of the fear of Heaven and great piety. Because his own external halakhic practice seemed more stringent than that of his father he felt compelled to justify himself. "

http://www.yutorah.org/_shiurim//TU7_Chavel.pdf

 
At 6:41 PM, Anonymous Nobody said...

"What do you think an eruv does? An eruv does not work like magic. An eruv creates mechitzos"

What I think an eruv does is permit a rabbinic prohibition. In the case of carrying, the Chachamim regarded carrying as a "light" melacha because it isn't obvious to a person why carrying from one house to another is perfectly OK (min hatorah) yet carrying to the street is chillul shabbos d'oraisa. So they forbade carrying from reshus to reshus. Similarly for a carmilis, there is no obvious difference carrying 4 amos in a carmilis (a 15 amah wide street, say) and a reshus harabim. What an eruv does is create the *impression* of walls, so it works around the rabbinic concern - it reminds people that there is a difference, it makes them think about an eruv, therefore think about the implications of why carrying here is different. Just as an eruv chatzeros doesn't really make everyone live in the same house, and making one in the middle of a reshus harabim wouldn't do anything, so too making an eruv of door openings doesn't do anything to the reshus harabim, and the chachamim cannot enact a takanah which allows you to do a melacha on shabbos.

The same thing applies to an eruv tavshilin, which is why the food has to be edible on friday. The eruv only works around a rabbinic prohibition, not the Torah prohibition of cooking so close to the end of yom tov that even surprise guests couldn't eat it.

Building real walls, on the other hand, changes the situation min hatorah. No "eruv," in the usual meaning anyway, involved.

 
At 7:13 PM, Blogger bluke said...

A mechitza made from a tzuras hapesach is a mechitza. If I am not mistaken the gemara says that migo d'havei mechitza l'shabbos havei mechitza lsukka. In other words, an Eruv creates mechitzos and therefore can be used for a succa.

 
At 6:19 AM, Anonymous Nobody said...

"A mechitza made from a tzuras hapesach is a mechitza"

I looked into it and you are right. According to Shulchan Aruch HaRav, Tzuras Hapesach alone, in the middle of a Reshus Harabbim is considered a Reshus Hayachid Min Hatorah. M'Derabbanan it is not if the area is a true Reshus Harabim, which involves the Machlokes of 600,000 passing through.

This changes the discussion above, as that means the whole question is about an Issure D'Rabbanan, and Sofek D'Rabbanan L'Hakeil, so a woman being lenient instead of having the Tircha of being forced to stay in the house a whole Shabbos becomes well founded.

 
At 1:24 PM, Blogger bluke said...

To the best of my recollection many hold that a tzuras hapesach doesn't work on a level of d'oraysa in a reshus harabim d'oraysa because of asu rabim u'mavtlei l'mechitzta, because people can walk right through the mechitza it doesn't create a reshus hayachid and therefore it is a safek d'oraysa.

In any case, a tzuras hapesach is a mechitza d'oraysa.

 
At 5:42 PM, Anonymous Anonymous said...

Interesting discussion. Bottom line for me is I have to believe R' Moshe ZT"L was aware of your concerns and still felt compelled to approve the Eiruv as we know it. (Kew Gardens Hills comes to mind) Be machmir on yourself if you wish and leave the wife alone.

 
At 9:01 PM, Blogger bluke said...

I wasn't trying to say not to use eruvin. I use an eiruv. The accepted psak is like Rashi (as the Aruch Hashulchan it is like a bas kol came down taht we pasken like Rashi). My whole point was that looking at it from a purely theoretical point of view we would probably pasken differently

 
At 2:34 AM, Anonymous Anonymous said...

"In short, one is a safek issur d'oraysa with a weak heter the other is a din d'rabbanan with a strong heter"

it's cultural. people came from europe used to cholov yisroel, and relying on cholov stam was a new leniency in america. those who took it on were viewed as taking on a new and big kula. chodosh was not a new issue.

 
At 7:29 AM, Anonymous Qolea L Hasaarah said...

These two you gave are very good examples but there are many others.
For instance not wearing teffilin all day, writing torah sheb'al peh (hazal were never matir it all the way), not bringing a korban pesah... and you will never finish whith d'rabanans example: hilhoth aveluth-(atifath harosh, keffiath hamitah and more), b'rachoth that are not said in practice and litterely thousands more

 
At 4:57 AM, Anonymous Anonymous said...

You missed a main point concerning the Brooklyn Eruv. Brooklyn is a walled city. 1. There are man made walls around more than three sides of Brooklyn. Fourth side, has fences along highway going to the airport. We rule even if there is a break in a wall it's still a valid wall according to Jewish Law: and, area surrounded by it is a private domain(reshus hayochid). 2. Brooklyn has the ocean and rivers on more than three sides. Anyone looking at a map of Brooklyn sees this. Ruling of holy sages for hundreds of years was to rely on oceans and river as walls. See website: "Flatbush eruv shiah director", where this is explained in detail. Also see comments by shiah director on "Manhattan Eruv Returns".

 
At 4:20 AM, Anonymous Anonymous said...

There are people who don't like anonymous posts on the internet. Please be adavised previous post was by SHIAH DIRECTOR. Don't know why my name didn't come up on post.
Also please be advised. There was an eruv in Manhattan in 1908 approved of by seven leading sages of their generation. They ruled rivers and oceans around Manhattan are walls. This also applies to Brooklyn. Their super genius discussions on this matter were published in SEFER ERUV VHOTZAH for all Torah scholars to study. No one in past 80 years was equal to them. Therefore, any opposition to Brooklyn Eruv is complete nonsense.
Printed with this book is book about eruv in Odessa, Russia, which is on the Black Sea. Ten leading Torah sages living then ruled the Black Sea is a wall.
These two books were reprinted in 1979: and, are available at P.O.B. 786, Woodbourne, N Y 12788. Please include $5.00.
Anyone learning subject of eruvin has an obligation to study this monumental work.

SHIAH DIRECTOR

 
At 7:17 AM, Anonymous Anonymous said...

For important information about eruvin see website:www.Israel613.com and click on "ERUV"

 

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