Our Mesorah (Part II)
Rabbi Kaganoff
Our Mesorah (Part II)
By Rabbi Yirmiyohu Kaganoff
In the first part of this article, we read the beautiful description of Rav Hirsch explaining the relationship between the Written Torah and the Oral Torah. We also cited the Rambam who delineates that all halacha is categorized under three origins:
1.Those halachos that are transmitted directly through mesorah. Aside from what is usually called halacha leMoshe miSinai, these also include laws that are based on a halachic interpretation of a pasuk that are accepted as part of our mesorah, which is called a peirush hamekubal. An example of the latter is that the fruit that the Torah calls pri eitz hadar is what we call an esrog.
2. Those halachos that are derived using principles that have been transmitted through our great Torah leaders, tracing back to Moshe Rabbeinu.
3. Those halachos that are of rabbinic origin.
The Rambam notes that there is a major distinction between the first two categories, notwithstanding the fact that the laws of both are min haTorah. There cannot be adispute about the veracity of any law that is in the first category, since they are all based on mesorah. To quote the Rambam, divrei kabbalah lo naflah bahem machlokes le’olam, there can never be a dispute regarding concepts that are based on our Oral Tradition. On the other hand, as the second category is based on logic, there will, of necessity, be differing opinions as to how to understand halachic concepts. Thus, it is axiomatic that whenever we discover a dispute between different sages, the law being debated must fall under either the second category or the third, but it can never belong to the first.
Can the transmission be faulty?
The Rambam emphasizes that there can never be a dispute concerning whether a mesorah is true. To quote him:
“Some think that there could be a dispute that is based on an error in the transmission of the laws or based on forgetfulness or because one scholar received the mesorah truthfully whereas a different scholar erred or forgot or simply never heard all that he should have heard… this is an improper approach and these are words of someone who is without common sense and is missing the basics. He is defaming the great men from whom we received the commandments. This entire approach is null and void. What caused people to make this terrible error is insufficient examination of the words of the Sages that are found in the Talmud. They discovered that every peirush hamekubal that originates from Moshe is true, and they did not realize that there is a difference between the basics and those that are derived by logical analysis.”[1]
Notwithstanding the sternness with which the Rambam presents this position, not all rishonim accept his premise. In other words, other rishonim understood that there could be a dispute among tanna’im or amora’im in which both sides claim that they received the halachic information as a mesorah.
Here is one case where we see this: On Pesach, the Torah prohibits consuming either chometz or sourdough, the inedible yeast-like product that develops when one allows dough to over-leaven. One who consumes an olive-sized quantity of chometz on Pesach is liable for the punishment of kareis. The Mishnah[2] records a dispute between Beis Hillel and Beis Shammai concerning the minimum quantity for a person to be legally responsible for consuming sourdough on Pesach -- is it the size of an olive or the size of a date? In two places, the Gemara debates at length what is the basis for the dispute, concluding that it is contingent on how one interprets the germane verses. However, Tosafos[3] asks why the Gemara did not present a simpler approach: Since we have a general statement that the sizes of the measurements of the Torah are generally derived as halacha leMoshe miSinai, why did the Gemara not simply explain the dispute between Beis Hillel and Beis Shammai as being what the original mesorah from Sinai had been, Beis Shammai accepting the mesorah to have been the size of a date, and Beis Hillel, the size of an olive. Regardless of how Tosafos answers this question, obviously Tosafos accepts the possibility that two disputing authorities could have different traditions concerning what we were taught at Sinai, and that it is not anathema to say that someone’s mesorah on a halacha leMoshe miSinai is wrong.
Kicking pebbles
We will now explore a halachic discussion where we see the predominantly accepted approach does not agree fully with the Rambam. Here is the background to the subject:
The Torah[4] rules that if an animal trespasses onto private property, its owner must compensate for the damage it caused. The discussion that concerns us is about damage that results because the animal kicked pebbles or moved some other item that then damaged property. The Mishnah[5] rules that the owner of the animal is obligated to pay for only half the damage caused when this happens, a concept called chatzi nezek tzeroros, half of the damage caused by pebbles.
What is the basis for this ruling? The Gemara[6] states hilchisa gemira la, it is a law that we know from tradition, which Rashi[7] explains to mean that it is a halacha leMoshe miSinai.[8]
The Gemara[9] mentions that there is a tanna, Sumchus, who disagrees with the concept of chatzi nezek tzeroros, and requires the owner to pay full damages.[10] This, of course, leads to a question. Once the Rambam has ruled that there can be no dispute regarding a halacha leMoshe miSinai, how could there be a dispute between Sumchus and the other sages regarding the concept of chatzi nezek tzeroros?
The Netziv[11] answers this question by noting that the Gemara never says that chatzi nezek tzeroros is a halacha leMoshe miSinai. Rather, the words of the Gemara are hilchisa gemira la, meaning that it is a law that we know from tradition. He explains that, in the Rambam’s opinion, there was never a halacha leMoshe miSinai concerning chatzi nezek tzeroros. An earlier generation’s Beis Din Hagadol had ruled that when an animal damages through tzeroros the owner is required to compensate for only half the damage. This earlier ruling was based on reasoning, although we are no longer aware of the logical basis. This could perhaps be compared to the analysis with which Asniel restored thousands of forgotten laws. As we learned in the first part of this article, thousands of laws were forgotten during the days that the Jewish people mourned Moshe Rabbeinu’s passing, the majority of which were restored through the brilliant analysis of Asniel ben Kenaz.
Sumchus disputed the ruling of the earlier Beis Din. The sages who held that the owner should pay half damages were of this opinion because of a tradition that they had received from earlier generations – but no one claimed that this tradition’s source was from Moshe Rabbeinu at Har Sinai.
This approach resolves how the Rambam would explain this Gemara, but leads us to a new, interesting conclusion. Although the Rambam declares adamantly that there can never be a dispute regarding whether a halacha leMoshe miSinai exists, Rashi disagrees with this assumption. He understands the ruling of tzeroros to be a halacha leMoshe miSinai, yet Sumchus disputes that this halacha leMoshe miSinai exists. This means that, although one authority claims that he knows a certain law to be a tradition from Sinai, a different sage could dispute whether this tradition is accurate.
An early acharon, Rav Yair Chayim Bachrach,[12] goes to great lengths to dispute the Rambam’s position that divrei kabbalah lo naflah bahem machlokes, rallying many sources that he feels prove that this principle is not accurate. On the other hand, the Maharatz Chayes,[13] a later acharon, wrote an essay to prove that the Rambam’s principle is correct, although he does accept that there are rishonim who dispute this principle.
The following approach can minimize the dispute among the rishonim. Let us assume, for a moment, that the great Tanna’im knew that a certain halacha is observed, but no longer remembered its source. Would it be wrong to say that someone suggested that its source might have been a halacha leMoshe miSinai, which has since been forgotten? This appears to be a statement of the amora Rabbi Yosi bar Rabbi Bun quoting Rabbi Abba bar Mamal, cited in the Talmud Yerushalmi (Pesachim 6:1). Rav Abba declared that a person may create a gezeirah shava to sustain a halachic ruling of which he is aware, but not one that runs counter to a known halachic ruling.
At first glance, Rabbi Abba’s statement appears to be highly novel, since it is universally accepted that one cannot create his own gezeirah shava; every gezeirah shava must be received as a mesorah from Sinai (see Pesachim 66a; Niddah 19b; Rashi to Shabbos 97a and 132a; to Sukkah 11b, to Megillah 2b and numerous other places). As a matter of fact, the very same passage of Yerushalmi that quotes Rabbi Abba’s statement also states that a person may not create a gezeirah shava on his own, and even proves that this must be true!
It seems that Rabbi Abba meant that when we know that an earlier generation had ruled a certain way, and we are dumbfounded to find a source for their ruling, we can suggest that its source was a gezeirah shavah that has since become lost in our mesorah. As long as we do not make any further rulings based on this gezeirah shavah, we may suggest the existence of this gezeirah shavah as the source for the law (see also Korban Ha’eidah commentary to this passage of Yerushalmi).
Perhaps we could explain that both Rashi and the Rambam understood the case of tzeroros in a similar way. The Sages knew that an earlier generation had ruled that the owner is obligated to pay for only half the damages, but they no longer remembered the reason. The Sages suggested that, perhaps, this had originally been taught as a now-forgotten halacha leMoshe miSinai, a position that Sumchus rejected.
The mesorah and the esrog
Although an observant Jew never requires proof that our mesorah is correct, nevertheless, we often feel some satisfaction when we discover that a secular source verifies our mesorah. The esrog with which most Ashkenazim are familiar looks quite different, both inside and outside, from the esrogim that the Moroccan and the Yemenite communities use, and the Moroccan and Yemenite esrogim look very different from one another. And yet, each has a mesorah that it is the fruit that the Torah commanded us to take on Sukkos to fulfill the mitzvah.
Many years ago, research teams from the University of Catania, Italy, and the Hebrew University conducted a joint study of twelve varieties of esrog, including the Moroccan, Yemenite, Italian, Chazon Ish, and other varieties, to see whether they were indeed consistently one species, or whether the DNA indicated that they were of different species and origins. Their pre-research assumption was that these were unrelated species and that Jews had simply used a native available citrus. (Bear in mind that there does not appear to have been any other citrus growing in the Middle East and the Mediterranean Basin until well after Talmudic times.)
The study concluded that the DNA proves that all twelve varieties are in fact one species -- and that they are all genetically different from all other citrus fruits. To quote the study:[14] "The results obtained are very clear and might be regarded as somewhat surprising. Notwithstanding diverse geographical origin and the considerable morphological variation, especially in fruit size and shape, presence of pulp and persistence of style, all the citron types examined revealed a high degree of similarity. There was no sign of introgression of lemon or other citrus genomes into any of the citrons examined."[15] Thus, the researchers had no choice other than to confirm our halachic mesorah!
Conclusion
The mesorah is our link to the past and our guide regarding how to perform our mitzvos. It is very reassuring to realize that the esrog and the other three species about which we were commanded when we were in the Desert are the same species that Yehoshua took on Sukkos and that were used in the days of Shelomoh Hamelech and in the days of Rabbi Akiva. It would be fascinating to watch a video of Jews in those eras holding their arba’ah minim while standing in their sukkos. Since we can’t watch that video, we can only reconstruct the vision in our minds and thank the mesorah that has kept us identified as Jews in so many different places and eras.
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[1] Introduction to his Commentary on the Mishnayos.
[2] Beitzah 2a
[3] Tosafos, Yoma 79b s.v. Lomar
[4] Shemos 22:4
[5] Bava Kama 17a
[6] Ibid. 17b
[7] Bava Kama 3b s.v. Bechatzi
[8] The analysis that the Rosh, Bava Kama 2:2 applies to the discussion also clearly demonstrates that he understood the Gemara to mean a halacha leMoshe miSinai.
[9] Ibid.
[10] The Gemara actually cites two approaches to explain Sumchus’s position, according to one of which Sumchus accepts the lenient ruling of tzeroros, but disputes when it applies. According to this approach, there would be no problem for the Rambam to accept that tzeroros is a halacha leMoshe miSinai in which two authorities dispute some of its halachic applications. However, the Gemara presents another approach, according to which Sumchus denies the entire halachic principle of tzeroros.
Note also that Rashi, Bava Kama 17b s.v. Sumchus states explicitly that Sumchus disputes the halacha of tzeroros.
[11] Introduction to his Commentary on the She’iltos, 1:2
[12] Shu’t Chavos Yair, #192
[13] Kol Kisvei Maharatz Chayes, Volume I page 111.
[14] Proceedings of the International Society of Citriculture, December, 2000
[15] We should note, that even though genetically all the varieties tested are indeed esrogim, we cannot rely on genetic testing to prove the authenticity of a particular esrog, since, if it was grafted onto non-esrog stock, it would be invalid for use for Sukkos according to most authorities.