Pesahim 50a-b - Following local custom
The fourth perek (chapter) of Massekhet Pesahim begins on our daf (page). It opens with a continuation of the discussion about preparations for the Passover holiday, specifically whether or not one can engage in mundane activities on erev Pesah. Must one dedicate the day before the holiday to the many necessary pre-Pesah preparations, like destroying hametz, baking matzot, arranging the Passover sacrifice, etc.? The Sages did not rule that erev Pesah need be a day of complete cessation of everyday matters; they left it to the discretion of each community - minhag ha-makom - to establish to what extent members of the community should refrain from work.
In fact, the majority of this chapter focuses not so much on Pesah matters as it does on the general approach that the halakha takes towards minhag, towards community custom and practice. What is the significance of minhag in Jewish law? What are the sources that obligate Jews to follow the local minhag? Can an established minhag change, if there is a change in circumstance? Which minhag should a traveler follow - the minhag of the place that he left, or the accepted practices of his new community? These are the issues dealt with in the fourth chapter, appropriately titled Makom She-Nahagu - "The place where they kept the custom."
Mishna: In a place where the people were accustomed to perform labor on Passover eve until midday, one may do so on that day. In a place where the people were accustomed not to perform labor, one may not do so. The performance of labor on the eve of Passover is not prohibited by Torah law, but is dependent on local custom. If one travels from a place where people perform labor on Passover eve to a place where people do not perform labor, or from a place where people do not perform labor on Passover eve to a place where people perform labor, the Sages impose upon him the stringencies of both the place from which he left and the stringencies of the place to which he went. In both cases, he may not perform labor.
The rishonim ask why a person would be obligated to
accept the stringencies of both communities. Would it not make more sense to
say that a person who travels to a new community and intends to remain there
would have to accept the local minhagim, but
if he planned to stay only a short time and return to his hometown he should
follow the traditions of his home?
Rabbenu Yehonatan argues that this, in fact, is the intention of the Mishnah in saying that he must keep the stringencies of the place that he is from - if he intends to return, and the stringencies of the place to which he arrived - if he intends to remain there.
The Ramban understands the Mishnah to be discussing a case where the man plans to return home, and the ruling that he must accept the customs of the new place is a temporary measure to avoid disagreements.
According to the Rashba, we are discussing a case where the individual is visiting Israel from Babylon, and he is obligated to accept the minhagim of Israel because halakha perceived the Babylonian community as being subservient to the Jewish community in Israel.
Pesahim 51a-b - Following local custom - II
Continuing the discussion of minhag ha-makom, the status of local custom in Jewish law, the Gemara brings a series of examples of traditions that are not requirements according to halakha and the reactions of the Sages to them. Some examples:
In answer to the Gemara's
question that Rabba bar bar
Hana was obligated to accept the local custom, Abaye explains that as a resident of Israel, he was not
obligated to accept the Babylonian minhagim. Rav Ashi argued that since he
was just visiting and he fully intended to return to Israel, he was not
obligated to accept the Babylonian customs.
The Gemara concludes by mentioning that Rabba bar bar Hana himself instructed his children that they could not eat d'ayitra. He told them that he could do so because of the tradition that he had from Rabbi Yohanan, who he had seen eating it, but that they, who had never seen the great Sage eat it, should accept the general practice and refrain.
The Rosh sums up the various stories by ruling that a reliable custom that was instituted and accepted by the local Rabbinic leadership becomes obligatory, and must be kept even if someone finds himself in another place. A lesser tradition that was accepted by the community members on their own does not obligate, and need not be kept if it is done where people will not see you.
Pesahim 52a-b - Consuming fruit on the
As an example of the principle that a person should be careful to conform to the local custom and avoid disagreements, the first Mishnah in our perek (chapter) (50b) brings a case of consuming fruit on the Sabbatical year. The Mishnah rules that if someone travels from a place where a certain type of fruit is available to a place where it is no longer available (or vice versa), he should behave according to the local custom.
Based on the passage in Vayikra 25:7, the Mishnah in Massekhet Shevi'it rules that a person is allowed to harvest and store fruits that grow on the Sabbatical year as long as similar fruits are available in the fields for all. Once the season comes to an end and that type of fruit is no longer on the trees, the person who is storing the fruit is obligated to perform bi'ur (removal).
There are two main positions in the rishonim with regard to defining bi'ur during the Shemittah year. According to Rashi, the Rambam and the Ra'avad, once a certain type of fruit is no longer readily available in the fields, all such fruit must be destroyed. The Ramban and Tosafot rule that performing bi'ur means that someone who is storing such fruit must remove it from his house and make it hefker, i.e. declare it ownerless and available to all (according to some opinions only the poor would be permitted to make use of it).
In explanation of our Mishnah, the Gemara on our daf (page) quotes a Mishnah from Massekhet Shevi'it (9:2) which teaches that not all places in Israel will end their seasons at the same time, thus someone could find himself traveling from Yehuda to the Galil, for example, and discover that his fruit, which was totally permissible to eat back home needs bi'ur performed on it in the new location. According to the Mishnah there were three distinct areas in
Pesahim 53a-b - Eating roasted meat on Pesah following the destruction of the Temple
One example of following the local custom that is discussed in the Mishnah on our daf (page) deals with a Pesah issue. Following the destruction of the Temple, what is the best course of action? Should we eat meat at the seder roasted in commemoration of the Passover sacrifice that had to be roasted (see Shmot 12: 8-9) or would doing so present a problem because it would appear that the sacrifice was being eaten outside the precincts of Jerusalem? The Mishnah rules that either of these customs can be followed, each in the community where it is the accepted tradition.
Rabbi Yosei said: Theodosius [Todos] of
While the tanna'im of the Mishnah apparently knew him well, Todos was not a well-known character to the amora'im of the Gemara, who ask whether the reluctance to place him under ban stemmed from the fact that he was a talmid hakham, or, perhaps, because he was a powerful figure who could not be punished. The Hatam Sofer points out that this is not merely a theoretical question, but a practical one from which we can deduce that a talmid hakham should not be punished for making an error, but should simply be warned about it.
In response, the Gemara offers two stories about him.
The first story quotes Todos as teaching an aggadic homily, in which he explained the actions of Hananiah, Misha'el and Azariah who allowed themselves to be thrown into a fiery furnace (see Daniel chapter 3 ) by comparing their situation to that of the frogs of the second of the ten plagues in Egypt who willingly jumped into burning ovens (see Shmot 7:28). According to this story, since we have records of Todos teaching Torah publicly, apparently he was a scholar.
Rabbi Yossi bar Avin relates the second story, that Todos was someone who supported Torah scholars by lending money or merchandise to them, thus allowing them to support themselves. It should be noted that the Rambam lists eight levels of charity (see Rambam Hilkhot Matnot Aniyim 10:7) ranging from giving a hand-out to a poor person to offering assistance in a secretive way. The highest level enumerated is someone who enters into a partnership with a poor person, allowing him to become self-sufficient, which, apparently, was Todos' relationship with the Torah scholars in his community.
Pesahim 54a-b - Mourning on the Ninth of Av
One halakha that is dependant on the local custom is whether or not one can work on the fast day of the Ninth of Av, which commemorates the destruction of both the first and second Temples. According to the Mishnah, even in places where the custom was to permit people to work on Tisha b'Av, Torah scholars refrained from working. Rabban Shimon ben Gamliel taught that it would be appropriate for everyone to consider himself a scholar with regard to this custom, i.e. that anyone who can, should refrain from work on the fast day.
Most of the special rules and regulations that apply on the Ninth of Av stem from traditions of aveilut - mourning. Just as someone who is in aveilut for a parent refrains from wearing leather shoes, engaging in sexual relations or learning Torah, similarly the community that is in mourning for the Temple refrains from these activities. Rabbi Shlomo Adani in his Melekhet Shlomo points out that the Sages did not establish work as one of the things that is forbidden on Tisha b'Av, even though someone who has a personal aveilut does not work, because the communal mourning over the Temple is aveilut yeshanah – it is commemorative mourning over a historical event, not a recent one.
In the Gemara, Shmuel rules that the only true ta'anit tzibur – communal fast – in Babylon is Tisha b'Av. The other fast days do not begin in the evening, nor do they encompass other rules aside from the fast itself. This also indicates that the fast days enumerated in Massekhet Ta'anit on the occasion of drought, will never be established in the Babylonian exile.
The rishonim differ in their explanations of Shmuel's ruling. Rashi explains that in
Pesahim 55a-b - Placing a hen to brood on erev Pesah
One of the activities that might be restricted on erev Pesah involves an egg farmer who prepares nests or coops for his birds. The Mishnah teaches that hens can be put on eggs to warm them for hatching on the 14th of Nisan; similarly, if a hen has abandoned her post on the eggs she can be returned to it, or if the hen dies another can be brought as a replacement. These activities are not true melakhot, but they do involve a certain amount of hard work to accomplish.
Gemara: Now, the mishna stated that placing a brooding hen to sit on eggs is permitted; is it necessary to mention that restoring a hen to its brooding place is permitted? Abaye said: In the last clause of the mishna we have arrived at the halakhot of the intermediate days of the Festival, when placing a hen to sit on eggs is prohibited, yet one may nevertheless restore a hen that fled, as failure to do so will cause him to incur a loss. On the fourteenth of Nisan, one may even place a hen to brood ab initio.
Rav Huna follows this by
teaching that the bird can only be returned to the nest within three days of
leaving d'akati lo parah
tzimra minei – because
the hen has not yet lost its warmth, but after that the hen cannot be returned.
When birds, including chickens, sit on their nests and warm their eggs, it is not a simple act of rest for them. "Brooding" (degirah in modern Hebrew) involves a complex hormonal change in the chicken that gets the bird to sit for weeks on end in a single place, ready to fend off any attackers. This condition is brought about by a number of factors, including the season and the physical touch and feel of eggs against the body. In many birds, the body temperature rises (some specific areas on the body become warmer) as part of the hormonal change. In the event that the bird loses its natural inclination towards brooding, returning it to the nest within a short time may successfully restart its instinct for remaining on the nest, due to the contact with the eggs. If the bird is not returned shortly after leaving the nest, it may not be possible to return it to brooding.
Pesahim 56a-b - More unique customs
Another example of customs unique to specific communities was that the people of Jericho, "the city of date palms" (see Devarim 34:3), permitted grafting of date palms throughout the day of erev Pesah. Rav Aha the son of Rava explains this to mean placing a branch of a male palm tree on the female.
Date palms are dioecious, that is each tree is specifically male or female. A male tree does not produce dates, but is necessary for its pollen in order for the female tree to give fruit. In nature or in orchards where the palm trees are planted very close together, the wind is enough to fertilize the female trees. When growing date palms commercially to produce dates, however, hand pollination is usually necessary to insure a good fruit harvest. Male flowers should be collected within a few hours after the sheath splits open to prevent pollen loss. The pollen should be stored in a cool place until the female florets on the female tree are ready for pollination. Three or four strands of the male flower should be placed with the female strand from one to three days after the female sheath splits open.
Once the female tree is ready to be fertilized, time is of the essence. Therefore we can well understand the concern in Jericho that hand pollination should be permitted throughout the day on erev Pesah.
Following the Mishnaic teaching about the six customs of the people
In Maimonides' commentary to the Mishnah, he argues that if this were simply a book of medicine from which the sick could be healed it should have been valued and used, and the Sages would never have agreed to allow it to be hidden away. He offers two possible explanations:
1. It was a book that listed a variety of forbidden activities that could have an effect on a given illness, which was written as a theoretical treatise, examining nature. When people began to use it in practice, King Hizkiyahu removed it.
2. It was a book that described how to make poison and its antidote. While the intent was to allow a doctor to heal someone who had become poisoned, when people used it to learn how to injure others, it was hidden away.