Daf Ditty Beitza 11:Circumventions or Deceptions?

Charles River Bridge, Prague

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MISHNA: Beit Shammai say: One may not take a large pestle from a mortar, which is normally
used for crushing wheat in the preparation of porridge, for any other purpose on a Festival, e.g., to
cut meat on it; and Beit Hillel permit it. Likewise, Beit Shammai say: One may not place an
unprocessed hide before those who will tread on it, as this constitutes the prohibited labor of
tanning on a Festival. And one may not lift the hide from its place, as it is considered muktze,
unless there is an olive-bulk of meat on it, in which case it may be carried on account of its meat;
and Beit Hillel permit it in both cases.
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GEMARA: The Sage taught in a baraita: And Beit Shammai and Beit Hillel agree that if one
already cut the meat he needs for the Festival on the pestle, it is prohibited to move the pestle
farther on the Festival. The reason is that the vessel is muktze as a utensil whose primary function
is a prohibited use, and therefore it is permitted to handle it only when one requires it.

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Abaye said: This dispute applies specifically in the case of a pestle; however, in the case of a
wooden anvil used for breaking bones, everyone agrees that it is permitted. The Gemara asks:
This is obvious; we learned in the mishna: A pestle. Why would one think that an object not even
mentioned in the mishna is prohibited?
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The Gemara answers: Abaye’s statement is necessary, lest you say: The same is true, i.e., Beit
Shammai and Beit Hillel disagree, even with regard to a wooden anvil used for breaking bones;
and that which the mishna specifically teaches: A pestle, is to convey the far-reaching nature
of the opinion of Beit Hillel, that they permitted moving even an object whose primary function
is for a prohibited use. Abaye therefore teaches us that Beit Shammai and Beit Hillel did not
disagree with regard to a wooden anvil used for breaking bones.

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MISHNA: Beit Shammai say: One may not remove the shutters [terisin] of a store on a
Festival, due to the prohibition against building and demolishing. And Beit Hillel permit one not
only to open the shutters, but even to replace them.

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GEMARA: The Gemara asks: What are these shutters?Ulla said: This is referring to shutters
of shops. The marketplace shops or stalls were large crates or wagons, not buildings. They were
closed at night with shutters. The shopkeepers would open the shutters on the Festival so that
people who did not manage to finish all of their Festival preparations before the Festival could
take the articles they required and settle accounts with the storekeeper later. Beit Shammai and
Beit Hillel disputed whether the shutters may be opened and closed on the Festival itself.

And Ulla said: With regard to three matters, the Sages permitted an action whose result is
undesirable in order to encourage a desirable initial action. And these are the three matters: First,
they permitted spreading out the hide of an animal slaughtered on a Festival before those who
will tread on it, a stage in its tanning. This was permitted because the Sages wish to encourage
slaughtering the animal to enable celebration on the Festival. And second, the Sages permitted the
replacement of shutters of shops on a Festival, so that storeowners could supply the Festival
requirements for those in need.

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And the third permitted action is the replacement of a bandage in the Temple. If a priest had an
injury on his hand, he would have to remove the bandage while performing the Temple service, as
it is prohibited for any item to interpose between his hand and whatever he must handle as part of
the rite. After concluding his Temple service, he was allowed to replace the bandage on Shabbat,
despite the fact that this is ordinarily prohibited, so as not to discourage him from engaging in
Temple service.

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Summary

Introduction This mishnah continues with four more debates between Bet Shammai and Bet Hillel
on the laws of Yom Tov.

Bet Shammai says: one may not remove shutters on Yom Tov. But Bet Hillel permits even to
return them to their place. In mishnaic times the shutters which were used to close windows and
closets were removable. Bet Shammai forbade removing them because they considered this similar
to tearing down a building, a forbidden labor on Shabbat and Yom Tov. All the more so they would
hold that putting the shutters back in their place is forbidden because it is similar to “building”.
Bet Hillel holds that it is permitted even to put the shutters back in their place. Bet Hillel’s general
principle is that if an activity is permitted because it is done in the preparation of food, then it is
permitted even when it is done for another purpose. Removing a shutter to take food out of a closet
is permitted therefore removing shutters is always permitted, even if it is not for the sake of
removing food. Bet Hillel even allows returning the shutter to its place, because if it were
prohibited people would hesitate to remove them, knowing that they would not be able to put them
back in their place afterwards.

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Bird enthusiasts? Desperate to raise enough kosher doves for the offerings? People with too much
time on their hands?1 Our beloved rabbis continue to describe, in detail, the behaviour of fledgling
doves. We are given the tools to know which doves are appropriate and which are prohibited for
slaughtering.

A new Mishna moves on to other prohibitions: a large pestle removed from the mortar to cut meat,
a hide placed on the floor where it can be stepped on, lifting a hide as it is muktze, set aside, unless
it has meat on it. Or not... because Beit Hillel permit the last two prohibitions.

The rabbis explain some of our halachot regarding food preparation. After being used to cut meat
for the Festivals, pestles cannot be moved for safekeeping. They can be moved to be used again,
however. I am not completely clear about how this works; it seems that utensils are categorized as
muktze unless they are used for a food-preparation purpose during the Festival. But don't quote
me on that.

Is it the same for an anvil, used to crush bones? wonder our rabbis. Can we move a knife or an
animal to a butcher? Hillel rules with leniency in these and other scenarios.

1 http://dafyomibeginner.blogspot.com/2014/04/beitza-11-b.html
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We learn about the pros and cons of salting hides. Yes, the hide is preserved; the animal is ready
for roasting. But salting a hide is similar to tanning, which is prohibited on the Festivals. The
rabbis speak about some of the intricacies of hide preparation that are foreign to me - the use of
the fats. the use of fats and salt, the use of a pot for cooking...

Finally, in looking at stretching the hide, the rabbis look again at salting the hide. I am not clear
exactly how this is very different from the rabbis' second point.

A second Mishna teaches us about shutters. Beit Shammai tell us that we cannot remove the
shutters from a store on a Festival. We would be breaking the 'building and demolishing'
prohibition. Beit Hillel permit us to open the shutters and even to replace the shutters! The
Gemara notes that stores should be allowed to remain open so that people can prepare for the
Festival. Ulla reminds us of a principle: the Sages permit an action whose result is undesirable to
encourage a desirable initial action. An example is laying out hides, even if they are trodden
upon. Other examples of this principle are shared: bandaging Priests on Shabbat; selling wine and
dough on the Festival.

The rabbis tell us that these leniencies applied in the Temple but not in the rest of
Israel. Why? Because rabbinic law does not apply to the Temple. The rabbis share details
regarding which prohibitions were treated with greater leniency and why. For example, a person
outside of the Temple cannot replace her/his bandage on a Festival or Shabbat - unless s/he is
eligible for Temple service. In that case, bandages can be replaced.

The rabbis share their thoughts about selling wine and dough on Festivals. These products are
considered to be ritually pure until opened; there is some debate as to whether or not they regress
to a state of ritual impurity or whether they retain their status as ritually pure after selling some of
each product. Steinsaltz shares a note explaining that when these items are opened on a Festival,
they do retain their ritual purity until the end of the holiday, after which time they lose that
status. This is due to the principle cited earlier regarding an undesired outcome.

We learn more about shutters being removed. Rabbi Shimon ben Elazar suggest that Beit Hillel
and Beit Shammai in fact agree that it is permitted to remove shutters; they disagree about whether
or not it is allowed to replace them. The rabbis wonder about the hinges of the shutters: what work
would be involved in replacing the shutters? Without hinges, those shutters would be similar to
boards - no problem, because the action is not at all related to building/demolishing. In the end,
the rabbis agree that it is important to know where the hinges are attached to the board: the middle?
The ends/sides? This will help them to know when it is permitted to remove that shutter.

Today's daf demonstrates the minutiae that our Sages considered while they were forming
arguments about larger issues.
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Rav Avrohom Adler writes:2

We learned in the Mishnah on 10b that if one designated doves before Yom Tov and they were
inside the birdhouse and then on Yom Tov he found them on the ledge in front of the birdhouse,
they are prohibited. The Gemara again seeks to bring a proof to the opinion of Rabbi Chanina who
maintains that when the principles of rov, the majority, and karov, close in proximity, conflict with
each other, then we follow the principle of majority. In the case of the Mishnah, we say that the
birds that are found on the ledge on Yom Tov are from the majority of birds and are prohibited.
Abaye rejects this proof and maintains that the Mishnah refers to a case where there is a ledge
before the birdhouse, so even if the birds are from close by, we still say that they are forbidden,
because the majority of all the birds are muktzeh.

Rava maintains that the Mishnah refers to a case where there are two pigeonholes, one above the
other, and prior to Yom Tov he designated the birds of one pigeonhole. On Yom Tov he found
some birds on the ledge before the pigeonhole that he had designated, so the birds that he found
are prohibited, because we are concerned that the birds on the ledge are from the pigeonhole that
was not designated. Thus, we are not following the majority. Rather, we assume that the doves
come from the other pigeonhole.

The Mishnah stated that if prior to Yom Tov there were no birds near the birdhouse besides these,
then we assume that the birds that he designated are the same ones that he found now, although he
found the birds on Yom Tov on the ledge. The Gemara establishes that the Mishnah refers to a
case where there is another birdhouse within fifty amos of the first one, but the other birdhouse is
situated in a way that it cannot be seen from the other birdhouse. One may have thought that the
doves hopped from one birdhouse to the other because of their proximity, so the Mishnah therefore
teaches us that we are not concerned for this, because a bird will only hop if it sees its pigeonhole.
Since the birdhouses are fifty amos from each other, there is no concern that the doves found on
Yom Tov are from the other birdhouse.

Bais Shammai maintains that if an animal was far from the slaughterer’s knife on Yom Tov, one
cannot take the knife to the animal on Yom Tov because if he changes his mind and does not
slaughter the animal, he will have exerted himself unnecessarily. Similarly, one cannot take the
animal to the slaughterer and his knife on Yom Tov. Bais Hillel, however, maintains that one can
bring the knife to the animal and one can take the animal to the knife.

Bais Shammai maintains that one cannot take spices and a pestle to a mortar on Yom Tov, and one
cannot take a mortar to spices and a pestle, whereas Bais Hillel maintains that one is allowed to
take one to the other.

Bais Shammai and Bais Hillel agree that one can salt meat over a hide on Yom Tov, although the
salt will fall on the hide. The reason Bais Shammai agrees that this is permitted is because of joy

2 http://dafnotes.com/wp-content/uploads/2015/10/Beitzah_11.pdf
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on Yom Tov, for if one could not preserve the hide, he would not want to slaughter an animal on
Yom Tov. This ruling is qualified to mean that salting is permitted when one salts the meat for
roasting, and one does not need to salt the meat to remove the blood. Rather, one merely salts the
meat to give it taste. If one salts the meat for cooking, however, it is forbidden, because cooking
requires a large amount of salt. This qualification comes to teach us that even if one salted the meat
for roasting, but he salted the meat as if he was going to be cooking the meat, it is forbidden.

Rav Yehudah said in the name of Shmuel that one can salt a few pieces of meat together on Yom
Tov, despite the fact that he only needs one piece of meat on Yom Tov. The reason that this is
permitted is because he is only exerting himself once. Rav Adda bar Ahavah would salt one piece
of meat on Yom Tov and then he would pretend that he had changed his mind and he would salt
another piece of meat, and so on. The reason that this is permitted is because if people were not
permitted to salt meat on Yom Tov to preserve the meat, they would not slaughter meat on Yom
Tov because of the concern that the meat would spoil.

Bais Shammai maintains that one cannot bring challah and the Matnos Kehunah, the Priestly gifts
of meat, to a Kohen on Yom Tov. There is no distinction whether the challah and gifts were
separated prior to Yom Tov or if they were separated on Yom Tov. Despite the fact that the
Chachamim permitted one to separate challah and the Priestly gifts on Yom Tov, they did not
allow one to deliver them to the Kohen on Yom Tov. Bais Hillel, however, maintains that one can
deliver the challah and Priestly gifts to the Kohen on Yom Tov.

The reason that we need to be taught that a Kohen can replace his bandage on Shabbos or Yom
Tov is because one would think that even if a Kohen is not performing the avodah – the service,
he would be allowed to replace the bandage. For this reason it was necessary to state that the
Chachamim only allowed a Kohen who will be performing the avodah to replace the bandage,
because otherwise he may refrain from performing the avodah. A Kohen who is not performing
the avodah, however, is prohibited from replacing the bandage on Shabbos or Yom Tov.

Unnecessary Exertion

Bais Shammai rules that one is not allowed to take the knife to the animal on Yom Tov with the
intention of slaughtering the animal. Bais Hillel disagrees and permits one to take the knife to the
animal on Yom Tov. Rashi explains that the knife and the animal are far apart from each other.
Bais Shammai maintains that since there is a possibility that the slaughterer might change his mind
and not slaughter the animal, it would be deemed an unnecessary exertion on Yom Tov.

Rav Elchonon Wasserman hy”d wonders what the concern is according to Bais Shammai, because
even if one decided not to slaughter the animal, nonetheless, when he held the knife, his intention
was to slaughter the animal which at the time was a necessary act. If one was to cook food on Yom
Tov and subsequently he was to decide not to eat it, he certainly would not be liable retroactively
for cooking on Yom Tov. Rabbah maintains that if one cooks food on Yom Tov with the intention
of eating after Yom Tov, he would not be liable because guests may arrive at his house on Yom
Tov and he will offer them to eat from the food that he had cooked. This ruling is true even if no
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guests arrived, and it is clear that if he intended to cook for guests, he will not be violating a
prohibition, regardless of the guests arriving or not. Why, then, is there a concern in our case that
he may change his mind and not slaughter the animal?

Rav Menachem Kohn zt"l in his sefer Ateres Avi suggests that perhaps there is a distinction
between the melacha of cooking and the prohibition of one exerting himself unnecessarily on Yom
Tov. The Torah permits one to perform melachos on Yom Tov that are necessary in the act of food
preparation. The act of cooking is completely permitted on Yom Tov and even if the food was
subsequently not eaten, we will say that retroactively, one is liable for cooking on Yom Tov. With
regard to the prohibition of one unnecessarily exerting himself on Yom Tov, however, the
Chachamim only permitted one to exert himself regarding the preparation of food. If we see that
retroactively his exertion was not for the preparation of food, then we will deem his act as an
unnecessary exertion and for this reason, Bais Shammai was concerned that the one slaughtering
the animal would change his mind and not slaughter the animal, thus exerting himself
unnecessarily.

No Ignorance on Yom Tov

Rashi writes that amei haaretz, ignorant people, despite the fact that they are suspected of laxity in
observing the laws of taharah, ritual purity, on a Yom Tov they are not suspected of being lax, and
if and am haaretz touched food on Yom Tov, it does not become tamei. We find that and am haaretz
is believed on Shabbos to say that he tithed produce, as even an ignorant Jew is in awe of Shabbos.
We should utilize the Shabbos and the Yomim Tovim for Torah study, as even ignorant Jews are
on a higher spiritual plane on these holy days, so certainly one who studies Torah on these holy
days will be greatly uplifted.

RETURNING A DOOR TO ITS PLACE: THE DIFFERENCE BETWEEN A

BOLT IN THE MIDDLE AND A BOLT AT THE EDGE

Rav Mordechai Kornfeld writes:3

In the Mishnah, Beis Shamai prohibits the removal of a door from a vendor's closet. (The vendor
stores his wares in the closet. When he wants to sell his wares, he removes the door, lays it flat on
the ground, and spreads out his wares upon it (Rashi 10a, DH Terisin).) Beis Hillel permits one to
remove the door and to return it to its place.

In the Gemara, Ula states that Beis Hillel permits one to return the door to its place only because
the vendors would not open their shops and sell the wares if they would be prohibited from
returning the door to its place after they sell their wares ("Hetiru Sofo Mishum Techilaso").

The Gemara explains that the Mishnah refers to closets that are not attached to the ground. The
door of such closets can be made in one of three ways. It can be made as a flat rectangular board,
it can be made with one peg protruding out of the center of one side of the board, or it can be made

3 https://www.dafyomi.co.il/beitzah/insites/bt-dt-011.htm
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with two pegs protruding from two opposite sides, one at the top corner of the board and one at
the bottom corner of the board.

The Gemara explains that, according to Ula, Beis Hillel permits one to return the door to its
place only in the case of a door with a peg in the center (or with no peg at all, which Beis Shamai
also permits), and only when the closet is used as a shop. Beis Hillel does not permit one to replace
the door of a closet in one's home which is used for private purposes, because in that case the
reasoning of "Hetiru Sofo Mishum Techilaso" does not apply.

In the case of a door that has two pegs protruding from the two sides, Beis Hillel prohibits replacing
the door, both to closets used as shops and to closets in one's home.

RASHI explains that the reason why one is prohibited to replace a door with two pegs at the sides
is because it is "Domeh l'Binyan," similar to an act of building. Even though the closet is not
attached to the ground (and thus returning the door does not constitute a real act of building), it
looks as though it is.

TOSFOS says that it is prohibited because of a Gezeirah "Shema Yiska" -- perhaps one will secure
the door in its place by nailing it in, in which case one will have transgressed the Melachah of
Binyan b'Kelim. (Rashi rejects this reason because he maintains that the Isur d'Oraisa of Binyan
does not apply to the construction of a utensil, even if one fastens the door or cover to the utensil
very tightly.

When the Gemara in various places mentions a Gezeirah of "Shema Yiska" with regard to utensils,
it means that there is a Gezeirah that one might securely fasten the item in order for it to remain
there permanently, in which case one transgresses not Binyan, but Makeh b'Patish, because one
completes the construction of the utensil (Rashi to Shabbos 122b, DH Gezeirah, and 47a, DH
Patur). In the case of the Gemara here, there is no fear that the person will fasten the door to its
place permanently, because he needs to remove it in order to take out his wares and spread them
out on the door, as Rashi explains (10a, DH Terisin).

In any case, according to Beis Hillel one is prohibited to return the door to its place only when it
has two pegs on each side. This prohibition is only mid'Rabanan, a Gezeirah of "Shema Yiska" or
"Domeh l'Binyan." Why, though, does neither concern, "Shema Yiska" or "Domeh l'Binyan,"
apply when the peg is in the center of one side of the door?

(a) The ROSH YOSEF (based on Rashi, end of 11b) explains that the peg in the center is not a
vertical rod that protrudes from the side of the door and which is inserted into a hole in the door
frame to stabilize the door. Rather, the peg is attached to the center of the board, perpendicular to
the board, and the board is not a door at all but merely a utensil on which to display the vendor's
wares. When the vendor is finished for the day, he picks up the board and inserts its peg into a hole
in the middle of the closet's door (in order to hold the board there; the board itself, though, is not
the door).

(b) The RAMBAN in Shabbos (102b) answers differently. He explains that a door with pegs on
two sides can swing outward. Therefore, even if the door is tightly fastened in its place in a
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permanent manner, the contents of the closet still can be accessed easily by swinging open the
door without removing it. In contrast, when the peg is in the center of the side of the door, the door
cannot swing outward because the other half of the door (which will swing inward) is blocked by
the door frame. One would not tighten such a door in place because he would then be unable to
take out his merchandise.

A "GEZEIRAH L'GEZEIRAH"

In the Mishnah, Beis Hillel permits one to remove the door of a vendor's closet and to return it to
its place (see previous Insight). In the Gemara, Ula states that Beis Hillel permits one to return the
door to its place only because the vendors would not open their shops and sell the wares if they
would be prohibited from returning the door to its place afterwards ("Hetiru Sofo Mishum
Techilaso").

The Gemara explains that, according to Ula, Beis Hillel permits one to return the door to its
place only in the case of a door with a peg in the center (or with no peg at all; see previous Insight),
and only when the closet is used as a shop. Beis Hillel does not permit one to replace the door of
a closet in one's home which is used for private purposes, because in that case the reasoning of
"Hetiru Sofo Mishum Techilaso" does not apply.

In the case of a door that has two pegs protruding from the two sides, Beis Hillel prohibits replacing
the door, both to closets used as shops and closets in one's home.

Even though there is no concern that one will fasten a door with one peg to the closet, Beis Hillel
prohibits returning such a door to its place when the closet is in a private home because of a
Gezeirah lest one mistakenly think that he may return a door that has two pegs on its sides. Beis
Hillel maintains that only in the case of a closet owned by a vendor does Simchas Yom Tov permit
one to return a door with one peg.

Why does Beis Hillel prohibit replacing a door which has one peg at the center, in the case of a
private closet in one's home, because of a Gezeirah lest one replace a door with two pegs on its
sides? Replacing a door with two pegs on its sides is prohibited only mid'Rabanan (either because
of "Shema Yiska" or because of "Domeh l'Binyan"), and there is a rule that the Rabanan do not
enact a Gezeirah for a pre-existing Gezeirah.

(a) The RAMBAN in Shabbos (102b) explains that when a door has two pegs on its sides, it is
common for one to securely fasten the door to its place. Therefore, in this case the Rabanan indeed
enacted a Gezeirah for a Gezeirah (and made an exception to the general rule that "Ein Gozrin
Gezeirah l'Gezeirah") and prohibited one from returning a door with only one peg. (This is also
the explanation of the ROSH YOSEF.)

(b) When there are two pegs on opposite sides of the door, one is prohibited mid'Oraisa from
replacing the door even if he does not securely fasten it in place. Returning such a door is a
"Meleches Uman," a professional's labor, and it constitutes the construction of a utensil, which
Beis Hillel agrees is prohibited mid'Oraisa (see Shabbos 47a). (This answer may not apply

16
according to Rashi, who seems to rule (see previous Insight) that the prohibition against making a
utensil applies only when one intends for the utensil to remain with this change permanently.)

(c) The RAMBAN suggests further that Ula, who says that Beis Hillel permits one to return the
door only in the case of a vendor's closet but not in the case of a closet in one's home, perhaps
follows the view of Rebbi Yochanan who reversed the opinions in the Mishnah and said that Beis
Shamai is the one who permits one to return the door. Accordingly, both Beis Shamai and Beis
Hillel maintain that there is a prohibition mid'Oraisa of "Binyan b'Kelim." Therefore, it is
appropriate to enact a Gezeirah prohibiting one from returning a door with a peg in its center lest
one return a door with pegs at its sides, which indeed is forbidden mid'Oraisa because of Binyan.
In the case of a vendor's closet on Yom Tov, however, Beis Shamai does not apply the Gezeirah
and permits one to return a door with one peg because of Simchas Yom Tov.

According to this approach, one should be permitted to replace the door of a closet even in a house,
because the Halachah follows the opinion that there is no Binyan for Kelim (not like Rebbi
Yochanan). The opinions of the Mishnah are not reversed, and thus Beis Hillel permits one to
return the door of a vendor's closet because there is no Binyan for Kelim. Accordingly, he also
permits one to return the door of a closet even in a house.

(d) The words of the SHITAH MEKUBETZES imply that even though there is no Gezeirah of
"Shema Yiska" for a door with a peg in the center, nevertheless the act of returning such a door
still slightly resembles an act of Binyan. This factor combines with the need for a Gezeirah lest
one return a door with two pegs at its sides. These two factors permit the Rabanan to make a
Gezeirah for a Gezeirah in this case.

Steinzaltz (OBM) writes:4

Another case of muktzah that is discussed by Bet Shammai and Bet Hillel is the case of an eli – a
board of sorts that was ordinarily used to grind or crush things that cannot be done on Yom Tov.
Can such a pestle be used for permitted food preparation – e.g. cutting meat – on Yom Tov, or is
it considered muktzah and cannot be moved?

In the Mishnah, Bet Shammai forbids the use of an eli, while Bet Hillel permits its use.

Tosafot ask why the eli cannot be used according to Bet Shammai. Although the ordinary use of
the eli is for acts that are forbidden on Yom Tov, this appears to be a case of a kli she-melakhto
le-issur, le-tzorekh gufo – it is an implement which is ordinarily used for a forbidden purpose
(which would make it muktzah) for its own self – i.e. for another, permitted, purpose. Ordinarily
such use – like cracking nuts with a hammer – is not considered muktzah and would be permitted
on Yom Tov. This question also appears in the Talmud Yerushalmi, which offers an answer similar
to Tosafot, that this eli is muktzah for other reasons beyond its being a utensil used for activities
forbidden on Yom Tov.

4 https://www.ou.org/life/torah/masechet_beitzah_713/
17
The additional source of muktzah might be that it is a valuable implement which is muktzah
machamat chisaron kis – because of its value – and cannot be used for another purpose (Tosafot)
or it is a large utensil that has a specific place set aside and is not really used for purposes other
than its central function (Tosafot R”id). According to this answer, Bet Hillel, who permits its use,
does so only because they are lenient in order to encourage simchat Yom Tov – to enhance the
joyousness of the holiday.

The Me’iri gives a different explanation to the Mishnah. According to him, Bet Shammai forbids
use of the eli because it appears to be a ma’aseh hol – a weekday activity – something that is not
accepted by Bet Hillel.

Beis Shammai prohibit handling of a pestle on Yom Tov, even if the purpose of taking it is in order
to chop meat on it. Beis Hillel allows the handling of the pestle on Yom Tov, if it is taken to
perform a permitted act, such as chopping meat.5

The Rishonim discuss the underlying principle behind this dispute. Rashi and Rif explain that the
function of the pestle is generally for chopping wheat kernels, which is a prohibited act on Yom
Tov. This pestle is a vessel designated for an act prohibited on Yom Tov – a ‫ לאיסור שמלאכתו כלי‬.

The dispute between Beis Hillel and Beis Shammai is whether such a utensil can be used to
perform a permitted action, such as cutting meat upon it. Beis Shammai rules that it is muktzeh,
and it cannot be handled even under these circumstances.

Beis Hillel allows it. Accordingly, this halacha is not only applicable to Yom Tov, but it is relevant
to Shabbos as well. Tosafos (‫ )” אין ה ד‬understands that this pestle is muktzah due to its value is
too great to be used for any purpose other than its designated function (‫ כיס חסרון‬.(It is generally
used to chop, and as Yom Tov or Shabbos begins, the person knows that he will not be using this
tool for the next day.

Everyone agrees that this category of muktzah may not be handled even ‫ ומקומו גופו לצורך‬.Here,
Beis Hillel allows it to be handled for chopping meat due to the mitzvah of simchas Yom Tov. We
must make this dispensation to enable the person to prepare and eat meat to rejoice on Yom Tov.
Meiri explains our sugya as does Rashi, that the ‫ עלי‬is a ‫ כלי לאיסור שמלאכתו‬.

The reason Beis Shammai does not allow it to be used for cutting meat is that when the person
takes it in order to use it, others seeing him think that he is going to use it for its normal usage, to
chop wheat kernels, which is a prohibited act. ‫ ר”ן‬explains the reason for Beis Shammai is that it
appears as he is engaged in a weekday activity (‫)דחול עובדא‬. Mishna Berura (499:5) explains
according to Rashi and Rif.

5 https://www.dafdigest.org/masechtos/Beitza%20011.pdf
18
An important Yom Tov question is whether one is permitted to lower the flame on the gas stove
top for the purpose of cooking. Rema writes that if the only way to prevent a cooking food from
becoming ruined is to extinguish the flame, it is permitted, because in such a circumstance
extinguishing is considered part of the food preparation and thus permitted on Yom Tov (1).

Accordingly, there are Poskim (2) who maintain that it is permitted to lower the flame on the stove
to prevent a cooking food from becoming ruined. Most Poskim (3), however, maintain that it is
better to light a second flame, even on Yom Tov, for cooking at a lower temperature rather than
lowering the existing flame.

It could be argued that lowering the flame should be permitted according to the principle laid down
in our Gemara that certain activities are permitted because they assure that people will take the
necessary steps to enjoy simchas Yom Tov.

Therefore, we should permit the lowering of the flame because to not do so would cause people to
refrain from using a flame for cooking on Yom Tov (4). A careful reading of the Poskim, however,
yields a different conclusion. Rabbeinu Ephraim, cited by R. Eliezer ben R. Yoel Halevi5 , the
Ra’aviah, writes that this principle is limited to the three activities mentioned by Ulla, and creating
additional applications are not within our domain.

Secondly, the Chavos Yair (6) writes that the three examples of the Gemara are considered public
needs and thus they are subject to a more lenient approach, as opposed to lowering the flame on
the stovetop which is considered only a private need.

19
The Mekor Chaim, zt”l, explains that salting refers to giving charity, for as Chazal said, tzedakah
preserves one’s money just as salting preserves food. On today’s daf, we find that Rav Ada bar
Ahava would act with cunning and, while he would salt food for his present need, he would take
advantage of the opportunity it offered and salt extra for later.

The Yom Tov referred to on our daf represents an ideal time to perform the mitzvah of charity,
such as when food is scarce and need is great. At such times, one must be “cunning” and give all
that one can, because soon it might be too late. Rav Moshe Ravkash, the author of Be’er Hagolah,
zt”l, was a true ba’al tzedakah.

Despite the fact that he was himself very poor, he always gave as much as he could to help those
even less fortunate. One year, there was a severe famine in his district and Rav Moshe decided to
sell every non-essential object in his home so that he would have the resources to help as many
people as possible.

Since people were literally starving in the streets, Rav Moshe felt that he had no choice but to sell
even his furnishings to provide for his many suffering brothers. One of the family members decided
that, although they were obligated to sell all they owned to preserve Jewish life, their one family
heirloom should be retained.

This person therefore concealed this single possession of great value, an exquisite candelabrum
that had been in the family for generations. The Rav assumed that it had been sold along with
everything else, and did not realize that it was actually hidden away in the house. The famine
ended, and the following year was relatively bountiful.

As soon as the person who had hidden the candelabrum saw that the danger had passed, it was
taken out of hiding and placed on the Shabbos table after the Rav had already left for shul. When
the Rav returned and saw it, he fainted dead away. The family was in an uproar until they finally
managed to bring him around. As soon as the Rav regained consciousness, he cried out, “Vey iz
mir! Who knows how many people died because of this leichter!”

Rabbi Elliot Goldberg writes:6

Especially in a system of religious law, like halakhah, it is easy to assume that rules are black and
white. And some things are: Pork is never kosher,* Shabbat always begins at sundown.

But as today’s page reminds us, there’s a lot of gray area — and sometimes in places we might not
expect. At times the rabbis intentionally relax halakhic requirements because of a concern that
requiring people to adhere one law will interfere with their observance of another. This is
particularly the case with regard to the observance of festivals, which are meant to be a time of

6
Myjewishlearning.com
20
abundant joy (e.g. Deuteronomy 16:10–15). On today’s page, Ulla offers three examples of relaxed
legal requirements which are meant to preserve the joy of festival observance, starting with this:

They permitted spreading out the hide of an animal slaughtered on a festival before those who
will tread on it.

Tanning a hide into leather is one of the 39 categories of forbidden labor — and trampling that
hide was an early step in the process. So it is surprising that here Ulla tells us that not only may
we trample the hide, but it is intentionally laid out in a place where people will do so. The reason,
he explains, is that were the rabbis to prohibit the placement of the hide in a place where people
are prone to walk, people would worry about someone accidentally treading on a large new hide
during the festival. They might even, therefore, decide not to slaughter an animal for the festival
in the first place and, as a result, their festive meal would have less food — making it, well, less
festive.

Another example: The rabbis permitted the replacement of shop shutters during a festival, an
activity that seems to violate the prohibition on building and demolishing. Why? To allow
shopkeepers to open their shutters in the morning, allowing people to take produce and other goods
that they needed to celebrate the festival (which they would pay for later) and close them up again
at night. Here too, the rabbis would be inclined to prohibit this activity (because it is considering
building and, although the text does not mention it, because it is a form of commerce) were it not
for the fact that it allowed people to obtain what they needed to celebrate a holiday. Once again,
laying a beautiful holiday table is a greater priority than perfect avoidance of forbidden labor.

The third case permits priests to replace bandages after serving in the Temple. Certain tasks
required the priests to handle objects directly, and those that were injured could not perform them
if a bandage prevented direct touch. Ordinarily, the rabbis do not allow one to replace a bandage
on a festival, and we would expect injured priests might refrain from volunteering for Temple
service on a festival. But here too, the rabbis make an exception to keep the rules from discouraging
injured priests from participating in festival activities.

The rabbinic rules that restrict labor on festivals are there to “protect the holiday,” that is, to help
ensure that people refrain from work and celebrate with joy. But rules, by their very nature, are
restrictive and can feel limiting to those upon whom they fall — especially when they curtail
priestly involvement into Temple or prevent someone from making a nice meal. And the rabbis
are very sensitive to these potentially unintended consequences. While Ulla’s statement does not
reveal much about why the rabbis chose these three specific instances (and not others) to relax the
rules in order to enhance holiday celebrations, it does show that the rabbis were aware that
sometimes in order to “protect the holiday” you have to adjust the rules to make sure that they do
not drown out the joy.

*Pork is never kosher, but you can eat it to save your life.

Rabbi Johnny Solomon writes:7

7
www.rabbijohnnysolomon.com
21
The Mishna (Beitzah 1:5) in our daf (Beitzah 11a) notes how Beit Hillel permitted placing an
animal hide on Yom Tov in a location where it may be trampled on - for fear that failing to do so
would hold people back from slaughtering on Yom Tov (and also lists two further cases ‘where
the Rabbis permitted the final phase on account of their initial phase’).

At the same time, it also quotes a Beraita that rejects Rabbi Yehoshua’s position who argued that
pieces of forbidden fat (i.e. cheilev) from a slaughtered animal may be hung on Yom Tov in a
manner to prevent them from spoiling – notwithstanding the possible claim that by this being
prohibited, there may be those who hold back from slaughtering on Yom Tov.

Though these very specific cases may be hard for many of us to relate to, what this does tell us is
that while consequences of Rabbinic rulings must always be considered in halachic rulings, not
every consequence can, or necessarily should, be the determinant for a given halachic ruling, and
though poskim are often confronted by questioners who will tell them that, ‘if you don’t rule X
then I won’t do Y’, this should not automatically sway them to rule X.

There are those who seek ‘friendly’ poskim who are sensitive to the needs of people. Yet while
such sensitivity is a must, a posek who capitulates to the demands of a questioner - notwithstanding
it not being halachically appropriate - acts improperly. Instead, they should explain – as we find
in today’s daf with respect to the position of Rabbi Yehoshua – why it is inappropriate to rule in
this manner.

Rabbi Mendel Weinbach writes:8

A weeping rabbi, a Russian general and a wandering dove - what is the connection? It was the
custom of Rabbi Chaim Berlin, who spent the later years of his life in Jerusalem, to melodiously
chant the verses of Shir HaShirim (Song of Songs) on late Friday afternoons as a welcome to
Shabbat. Neighbors were so enchanted by the beauty of his recitation that they stood beneath his
window to listen. But they were always mystified by the manner in which his sweet singing was
interrupted by a tearful rendition of passage 1:15 in which the Jewish People are extolled as having
a special beauty and "the eyes of a dove."

When someone finally had the courage to ask for an explanation the rabbi told him the following
story:

"When I served as rabbi of the Jewish community in Moscow, one day an army general came into
my chambers and ordered me to remove all the people who had come to consult me so that he
could discuss something privately. He then confided to me that he was a Jew and that his wife had
given birth to a son for whom he wished to have me arrange a circumcision. Any public knowledge
of this would endanger his career and even his life, so it all had to be done with the greatest secrecy.

8 https://ohr.edu/this_week/the_weekly_daf/321
22
"Anticipating my question as to why such an assimilated high ranking officer in the czar's army
was so determined for his son to have a brit milah, he explained that although he had strayed so
far from Judaism, he maintained his Jewish identity because of what he saw and experienced in
the home of his observant parents. His son, however, will not have the privilege, he added, so
unless he is circumcised he will have nothing to remind him that he is a Jew.

"At that moment I recalled what the gemara says about doves that are found outside their nest on
a holiday. Since only a dove which had been designated before the holiday for use on the holiday
may be slaughtered for consumption, it is necessary to determine whether or not these doves came
from a designated nest. If these doves are old enough to fly, say our Sages, we must assume that
these birds could have come from far away, from an undesignated nest, and cannot be used on this
day. But if they are so young that they are only capable of wandering from the nest on foot, we
assume that if there is no other nest within fifty cubits of where the doves are found that they must
definitely have wandered from the designated nest. This criterion is based on the established
principle that a dove will not wander by foot more than fifty cubits from its nest. Even if there is
another nest within this distance, but the dove must go around a corner in order to reach it, we still
assume that it did not wander from that undesignated nest. This, once again, is based on another
facet of the dove's nature - it will wander from its nest only as long as it still can see that nest.

"This," concluded the rabbi, "is the meaning of Jews being compared to the eyes of a dove. A Jew
may wander from his faith, but he always keeps his eyes on the Jewish nest from which he came
and it is that awareness which preserves him as a Jew. Whenever I say these words in Shir
HaShirim I recall that encounter with the Russian general and I cannot help but cry."

Mark Kerzner writes:9

Of one wants to slaughter and eat some doves on a Holiday, he must "prepare" them from before,
by designating the ones he plans to eat. If he designated white ones in a dovecote and in the
morning found there black ones, or vice versa, they are forbidden.

This rule, however, is obvious! He can't use that he has not designated. Rabbah explained: "He
designated two dovecotes, one with ones doves another with black ones, and another with black
ones. The rules tells us that he cannot just say that they exchanged places, but rather, they all flew
away and new ones came in their place.

Can we derive a logical principle from here? There are two ways to decide matters: follow the
majority (and the majority of doves are not designated for his consumption) or follow the local
situation (and locally we have just two dovecotes, both designated). So could we say that the world
majority is more important than the specific local situation? - No, perhaps we cannot. Perhaps in
our case there is a platform in front of the dovecote, and birds from other parts of the world
constantly roost there. Normally they don't enter the dovecote, because of the fear of locals. But
once the locals leave, they do enter.

9 https://talmudilluminated.com/beitzah/beitzah11.html
23
Thus, in this case the worldly doves and the local majority is one and the same, and we cannot
derive a general principle from this example - even if the principle may still be right.

Beyond the Beginning

Rabbi Jay Kelman writes:10

Our Sages defined a chacham as one who is roeh et hanolad, who foresees the results of his
actions. We live in a world which is focused on the here and now, with only the great amongst us
able or even willing to try and see the impact on tomorrow of what we do today[1]. “Ulla said:
Three things the end was allowed due to the beginning, and these are they; placing leather hides
before those who trample upon them, returning shutters, and replacing a bandage in the
Temple” (Beitzah 11b).
Until the advent of modern refrigeration, in order to have fresh meat for Yom Tov, one would
slaughter an animal on Yom Tov itself. However, one could not prepare the skins of the animal
for use as leather, as such went beyond food preparation on Yom Tov. However, not wanting to
risk the loss of the hides, many decided not to slaughter the animal in the first place, depriving
themselves of the joy of the festival. The Sages thus allowed one to place the hides in a public
place where many would trample on them, preserving them for future use, so that there would be
no hesitation to slaughter the animal.
The second “ending” allowed by the rabbis was the putting back of shutters on food stalls so that
people would not hesitate to remove the cover to get food. This should have been forbidden, as
may run afoul of the prohibition of building. The third case was “replacing a bandage in the
Temple”. The kohanim performing their Temple service were not allowed a chatzitza, a barrier, to
come between their bare hands and any animal or vessels that they might handle. While normally,
one may not replace a bandage on Shabbat, had the Sages not allowed such, kohanim would be
hesitant to remove the bandage in the first place, and thus be disqualified from working in the
Temple[2].
What I find most interesting is a “fourth case” brought in the name of Rav Yehuda that “even one
who opens his barrel [of wine] or begins his dough on the holiday, Rav Yehuda says he may
finish”. What helped make the shalosh regalim so special was how Jews from all walks of life
would come together in Jerusalem to celebrate with their families, the community joining together
in national joy. During Temple times there were those known as chaver(im), who were meticulous
regarding the laws of tumah and tahara, purity and impurity, at all times.
They were careful not to eat food handled by an am haaretz[3], one who did not adopt such a
practice and whose food was not carefully guarded to ensure purity. There was no such requirement
to be careful about impurity unless one was planning to go the Temple or eat sacrificial food,
something all would do during the Yamim Tovim. While there was no way to ensure that the amei

10 https://torahinmotion.org/discussions-and-blogs/beitza-11-beyond-the-beginning
24
haaretz would properly observe the laws of purity on the Yamim Tovim, Jewish law trusted them
to do so and treated all who came to the Temple on Yom Tov as being in a state of purity. While
this was surely not universally true, we did not want to embarrass anyone—especially those
coming to the Temple to celebrate Yom Tov—and declare that which they came in contact with
to be impure. Given a choice between strict standards of “purity” and possibly embarrassing
someone, Jewish law chose to be careful about the latter.
What Rav Yehuda and the Sages debated was the status of food handled by an am haaretz after
Yom Tov. The Sages were of the view that the leniency with regard to purity applied only on Yom
Tov itself. With Yom Tov over and people dispersed to their homes, the same food that was
considered pure on Yom Tov was retroactively considered tameh. Merchants who had provided
food for the masses of Jews arriving in Jerusalem for the holidays had to be careful not to sell such
food to a chaver once Yom Tov was over.
While this retroactive change in status may seem strange—either the food is tameh or not, and a
change in date should have no impact—all legal systems balance many factors before arriving at
a ruling. The ability of all Jews to join together and the extreme care we must exercise so as not to
embarrass anyone resolved the doubt regarding the food towards leniency. These factors did not
apply after Yom Tov and hence, the doubt had to be resolved in a stringent manner[4]. Rav Yehuda
agrees in theory, but not in practice, “allowing the end because of the beginning”. If we did not
allow merchants to continue selling their produce after Yom Tov, they might not sell it during the
holiday either, fearing much left over and few potential buyers. Those travelling to Jerusalem for
Yom Tov would then not have readily available provisions.
Once again, we see how a single Jewish law considers not only the case before us, but the impact
any decision rendered would have. Legal theory and legal practice must, if need be, part ways.

[1] On the heels of the seder, it is worth noting that this is one of the distinguishing features between the question of
the chacham and that of the rasha. The question of the rasha is introduced with the phrase, “and when your children shall ask you”,
while that of the chacham begins, “and when your child will ask you, machar, tomorrow”. Thinking beyond today makes all the
difference.
[2] It is similar reasoning that allows a doctor called into emergency service on Shabbat to travel home on Shabbat once he has
administered the necessary medical care. Whether one may drive his own car or instead have a non-Jew drive him home is
dependent on whether “allowing the beginning because of the end” is rooted in biblical law or is a rabbinic innovation. If it is the
latter, and most authorities assume such, this principle may only be invoked to violate rabbinic law.
[3] While in modern parlance, and am haaretz refers to one who is ignorant in the Talmud, the term is most often used to describe
those who were not careful about the laws of purity.
[4] This is no different than convicting someone on civil charges, yet finding them innocent for the same “crime” in a criminal trial.
The rules of evidence are, as they should be, different when dealing with money, as opposed to life-and-death questions.

Ha'arama in Halakha The Facts, The Mechanism, and the Objective

Rav Mosheh Lichtenstein writes:11

11 https://torah.etzion.org.il/en/haarama-halakha-%D6%A0the-facts-mechanism-and-objective
25
Introduction

The holiday of Pesach is quickly approaching, and with it the wave of chametz sales. Once again
the question arises regarding the legitimacy of utilizing a mechanism the sole purpose of which is
circumventing a biblical law.

Truth be said, this sweeping declaration that the sale of chametz constitutes an attempt to
circumvent a Torah law requires qualification, for it depends upon the nature of
the mitzva of tashbitu (destroying chametz) and the prohibition of bal yera'e and bal
yimatze (owning chametz), and it is not all self-evident that selling chametz is merely a
circumvention (ha'arama). In other words, if we understand that these mitzvot are fulfilled when
a person removes his chametz from his possession, and that there is no obligation to actively
destroy the chametz, then the sale of chametz does not circumvent the command, but rather it
constitutes another way of fulfilling it.

It is not, however, my intention to deal here with the sale of chametz itself, with all of its various
components. But rather, I wish to exploit the periodic and public utilization of the sale as a starting
point for a discussion concerning the use of halakhic circumventions in general. It is well known
that halakhic circumventions are found all across the halakhic spectrum, the most famous among
them being the prozbul (allowing loans to be collected at the end of the Sabbatical year), the heter
iska (allowing the charge of interest), the sale of chametz, the heter mekhira during the Sabbatical
year (allowing the land to be worked), bills of sale on Shabbat (allowing businesses to operate as
usual), and the sale of firstborn animals (to permit their slaughter as nonsacred animals).

This question is not new. It was already raised by the ancient sages, for the Mishna and Gemara
sanction certain circumventions (Ma'aser Sheni 4:4, Temura 5:1, Shevi'it 10:3, Beitza 11b, and
elsewhere), while forbidding others. Already the Rambam writes that "a permitted stratagem is
called a ha'arama (circumvention), whereas one that is forbidden is called mirma (deception)"
(Commentary to the Mishna, Temura 5:1). The Rashba (Beitza 11b, s.v. Rav Ada) writes that
"regarding ha'aramot, we do not say that one is similar to the other." Later in the same passage,
he formulates principles to distinguish between legitimate circumventions and those which are
forbidden to be used.[1]

26
Before approaching the subject, let us note that the term ha'arama refers to two different halakhic
situations. The first type is a case of halakhic circumvention, the legal validity of which is beyond
doubt, so that he who employs the circumvention is exempt from his halakhic obligation. The only
question that arises is that of the religious and/or moral legitimacy of utilizing such a
circumvention. This category includes ha'aramot such as bringing produce into the house by way
of the roof or a window in order to exempt it from terumot and ma'asrot, the sale of firstborn
animals, and the like. The other type of ha'arama involves acting in a certain manner –different
than usual – which causes the action to be permitted. In other words, it is not the act itself or its
result that is forbidden, but rather a specific way of performing that act. Most of
the ha'aramot mentioned in the various passages regarding work that is forbidden
on Shabbat and Yom Tov fall into this category. The common denominator between these two
categories is the use of a certain stratagem to permit an act that is otherwise forbidden. For this
reason they are both designated as a ha'arama, even though we are dealing with two different
phenomena. In the coming lines we shall deal with the legitimacy of utilizing a ha'arama, rather
than with the efficacy of any particular ha'arama. We shall therefore focus on the examples taken
from the first category.

The Difference Between Obligation and Opportunity in the Observance

of Mitzvot

The observance of mitzvot rests on two foundations. The first is man's position as constantly
subject to God's command, a situation that stems from his absolute obligation to the Master of the
world. The prophet Yeshayahu proclaims: "I have formed you; you are My own
servant" (Yeshayahu 44:21), and man's encounter with God from his very creation has been in the
shadow of "And the Lord commanded the man, saying" (Bereishit 2:16). And let us not forget that
Moshe Rabbenu's greatest praise was the fact that he was God's servant. A sharp and trusted
expression of this idea may be found in tractate Rosh ha-Shana (16a) with respect to
the mitzva of shofar[2]:

Rabbi Yitzchak said: Why do we blow [a teki'a] on Rosh ha-Shana? – Why do we

blow [a teki'a]? The Torah says: "Blow [a teki'a]"! Rather, why do we blow
a teru'a? - Blow a teru'a? The Torah says: "A memorial of blowing [a teru'a]!
Rather, why do we blow a teki'a and a teru'a while seated, and a teki'a and
a teru'a while standing? In order to confuse Satan.
27
The Gemara recoils from the very thought of taking an interest in the rationale underlying
the mitzva. It has no other choice but to remove the statement from its plain sense, and shift the
attempt to answer the question of "why" from the mitzva to the common practice. The mitzva itself
has only one reason – the Torah says: "Blow."

Nevertheless, we are all familiar with the extensive literature regarding the reasons for the
commandments in general and the many reasons offered for blowing the shofar in particular.
Rabbenu Sa'adya Gaon did not rest until he found ten reasons for the mitzva. Whether we see
the shofar blast as an expression of God's kingdom, a call for repentance, or an early form of
prayer, common to all the Rishonim who offered these various reasons is the fact that they did not
interpret the Gemara's argument, "the Torah says: 'Blow,'" as an attempt to close the door on
offering rationales for the mitzvot. This is because observance of the mitzvot is not just a command
and an assignment, but also a favor that God performs for His creatures. In other words,
the mitzvot are an expression of God's love for His creations, and His desire to fill them with merit.
If we examine the mitzvot from this perspective, then we should certainly search for their
underlying reasons to the best of our abilities.

This duality can be illustrated in many areas of the Bible and Halakha, too numerous to be
presented here in detail. It is based upon the duality presented in Scripture regarding the nature of
the relationship between Israel and God, one of lover and beloved, on the one hand, and one of
master and slave, on the other. So too the two-fold description of the revelation and the giving of
the Torah at Sinai, both in the book of Shemot (chapters 19-20 vs, chapter 24) as well as in the
book of Devarim (chapter 4 and 5), despite the many differences between them, reflect this idea.
The first narration of the story presents God as the giver of the Torah, by arching the mountain
over Israel like a tub, whereas the second time the Torah states that "the Lord talked with you face
to face."

An interesting expression of this idea, and one that is important for our discussion, may be found
in Nefesh ha-Chayyim at the end of sha'ar 1 (chapters 21-22), which uses this model to explain
what Chazal meant when they said that the patriarchs observed the mitzvot. Rav Chayyim
Volozhiner argues that the patriarchs observed the mitzvot, though "they were not commanded
nor did they do so by law... it was only because they comprehended with the purity of their minds
the awesome repairs that are performed with each mitzva in the upper and lower worlds and
powers, and the great blemishes and destruction and devastation, God forbid, that they would
28
cause if they do not observe them." In other words, they acted as they did solely because of the
inner reasons of the mitzvot, and not because of a command. In this way, he explains the
phenomenon itself why the patriarchs observed the mitzvot despite the fact that no commandment
had yet been given, and also the fact that they could have refrained from fulfilling a
particular mitzva, if according to their understanding, that would have been preferable in their
special circumstances.

Therefore, when Ya'akov Avinu understood that, according to the root of his
soul, he would cause great repairs in the upper worlds and forces if he marries
these two sisters, Rachel and Leah, and they together will build the house of
Israel, he made great efforts and did much work to achieve this that they should
marry him.

When, however, the Torah was given at Sinai, the element of absolute imperative was added, and
from that point it was no longer possible to allow any exceptions whatsoever, ever were we to
know with certainty that the exception is justified from the perspective of the inner root of
the mitzva.

Rav Elchanan Wasserman, Hy"d,[3] exploits this principle to explain the contradiction between
the various talmudic passages regarding the mitzvot and prohibitions applying to a minor. On the
one hand, the passage dealing with the principle that "one prohibition does not take effect where
another prohibition already exists" (Yevamot 33a) implies that prohibitions do not apply to a minor
before he reaches majority, while on the other hand, the Gemara in Sanhedrin (55b), implies that
the action of a minor is indeed regarded as a transgression, and that he is merely exempted from
punishment. The reason for this, according to Rav Elchanan, is "that the reason for the
prohibition applies to a minor just as it applies to an adult. It is only that in practice the
prohibition does not apply to him, since he was not warned, because it is not possible to warn
him." In other words, the inner metaphysical reason for the mitzva applies even to a minor,
whereas the aspect of imperative and obedience does not apply to a minor because the warning
was never directed towards him.

As was stated above, our fundamental assumption is that the two elements exist in
every mitzva and prohibition. Thus, it is fitting to refrain from eating forbidden foods not only
because of the imperative, but also because they dull the heart, and to take the lulav, because it
29
gives expression to the joy of nature, and the like, according to the reason of each and every mitzva.
Situations may arise in which there is a gap between the reason for a mitzva as we understand it
and the command that falls upon us to fulfill. In other words, there may be tension or
incompatibility between the letter of the law and the spirit of the law.

Let us illustrate this phenomenon with a simple example. According to the Rambam, the reason
for the prohibition of sha'atnez is that in biblical times it was customary for priests to wear clothing
containing sha'atnez. If we accept this reason – the reasonability of this specific reason is of no
concern to us; we merely wish to illustrate the aforementioned principle, and not to examine the
reason for the prohibition of sha'atnez – then a wide gap opens between the reason for
the mitzva and the details of the prohibition. If we relate to the reason for the mitzva, a person who
wears sha'atnez today is not drawn to idolatry, nor does he cling to its adherents, whereas a person
who wears the uniform of a modern priest violates the spirit of the law in the most severe manner,
even if hands them in for an especially thorough examination in a sha'atnez laboratory. On the
other hand, from the perspective of the detailed laws, it is clear that the first one is liable for lashes
by Torah law, for having violated a biblical prohibition, whereas the second is exempt from all
punishment. The religious sensitivity towards idolatry and the feeling of revulsion which the Torah
wished to implant within us are lacking in the second person but not in the first person. However,
the absolute obedience and commitment to God's word as an obligating imperative are found and
are fulfilled in the one who wears the priestly garments free of sha'atnez, but not in the one who
wears the clothing with sha'atnez outside of its cultural-religious context. The conclusion that
follows from all this is that the one who wears modern priestly garb does not violate any formal
prohibition, but deserves every religious and spiritual condemnation, while the other one violates
a prohibition and is liable for lashes.

Ha'arama as a Halakhic Solution

Let us return now to the matter of ha'arama. Ha'arama is a halakhic mechanism intended to
circumvent the formal aspect of a prohibition. In other words, it is a stratagem that provides the
possibility of evading the obligating imperative, by creating conditions in which the details of
the mitzva do not apply. However, all that this can do is provide an exemption from the letter of
the law, but it is incapable of providing an answer to the fact that the spirit of the law is not fulfilled
and is not achieved, and that the person who utilizes the circumvention fails in that way. Formally,

30
he does not violate any prohibition, but spiritually, his course is flawed. Ha'arama is, therefore,
regarded as a negative phenomenon, and despite its efficacy, there is no justification to use it.

All this is true in a case where there is no great gap between the mitzva and its objective. To the
extent that the reason for the mitzva and the details of its laws no longer go hand in hand, the
situation changes. If the reason for the mitzva is no longer meaningful to us and our entire
obligation to the mitzva stems from the absolute imperative of master of the universe, then creating
a mechanism that evades the formal prohibition is no longer problematic, for the reason is no
longer a factor. In all such cases, ha'arama becomes legitimate, and perhaps even desirable.

There is no need to emphasize the danger lying in the attempt to examine each and every mitzva in
light of its reason, for the reasons for the mitzvot are concealed from us and how can we know the
mind of the Almighty. Many reasons have been offered by many commentators; who can say
which are more correct or less correct, and what are the esoteric that are hidden from us, and how
can we rely on such a distinction. Indeed, the concern about error is real and sets a great warning
sign before us. This notwithstanding, there are certain cases and defined situations regarding which
we can say that the Torah did not mean for the command to apply to them. Let us take as an
example the mitzva of releasing debts in the seventh year. The Torah inserts it next to the mitzva of
giving charity, and relates in its context to the social dimension of helping one's neighbor.
Releasing debts was intended to provide a poor person who had been forced to take a loan with
the opportunity to open a new page once every seven years, without the burden of past debts
preventing him from ever rehabilitating himself. The classic borrower in the Torah is a poor person
who needs a longer economic breathing space ("If you lend money to my people, to the poor man
among you..."), and if he fails to rid himself of the burden of debt that is oppressing him,
the mitzva of charity requires that the debt be released. It is clear as day that the Torah never meant
that every seven years this mitzva should give a windfall profit to large economic concerns like
banks or insurance companies. However, even though the Torah never intended to make the banks
richer on the backs of the simple saver, the mitzva is defined as a release of debt, and as such it
formally applies to all loans. A situation is created of a great gap between the purpose of
the mitzva and its practical application. Paraphrasing the prophet, this is a case of "that which I
commanded, but never entered My mind."

Desirable ha'arama entered the world to resolve such a problem. Ha'arama resolves the technical
halakhic problem without effecting a parallel change in the reason for the mitzva. Therefore, if the
31
original reason is still valid and a person extends a private loan to his poor neighbor, or to a pauper
who came to his door, the writing of a prozbul will provide him with the legal authority to collect
his loan, but all of his actions and goals will stand in contradiction to the will of the Creator with
respect to this mitzva. It is important to emphasize that even today such conduct is expected from
one who lends money to a neighbor or relative. However, with respect to a financial institution,
the relations with which are of a business nature, the goal of helping the poor is never fulfilled,
and the only thing that prevents a person from collecting his debt is the legal reality in itself. With
the writing of the prozbul, that problem altogether disappears, and there is no moral complaint or
religious criticism of his actions, and whoever writes a prozbul in such a situation is to be praised.

Hillel's considerations when he enacted the prozbul were based on this principle, though his
enactment related to "domestic loans" and not to savings accounts or business loans. Hillel saw
that people were hesitating to extend loans, and thus they were in violation of a biblical prohibition,
that the poor were left without a source of financing their basic needs, and that the objective of
the mitzva was not being fulfilled whatsoever. In such a situation, Hillel decided that the Torah's
objective would better be reached through the writing of a prozbul, through the waiving of the
lofty social vision of the Torah. However, the question remained regarding the substance of the
law and the definition of the details of the mitzva as an absolute imperative that prevent such a
waiver. In order to deal with this problem, the prozbul was enacted as a desirable circumvention
in the new circumstances. Another example is the sale of firstborn animals today. Here too, it is
clear that the objective of the mitzva is to offer the firstborn animal as a sacrifice, and in the absence
of this possibility, taking care of the unblemished firstborn turns from a desirable privilege to a
religious problem that lacks a reasonable solution, and therefore it is fitting to prevent the situation
from arising. And again, the absolute formal definition of the law does not allow us to proclaim
that the law has changed. Rather, we must create a legal mechanism that answers the halakhic
requirements, in order to attain what is right and desirable in the circumstances of a world that is
missing the Temple.

Disagreements may arise at times as to what should be preferred in given circumstances. A good
example of this may be found in the debate regarding the heter mekhira during the Sabbatical year.
Most of the debate revolves around the question of the efficacy of the circumvention, those who
forbid the sale asserting that the sale does not resolve the halakhic problem, and those who permit
the sale arguing that it does. The Netziv, however, in his discussion regarding the matter, addresses
the question of the desirability of the circumvention. He argues that even if the sale is formally
32
valid, it is not desirable, and not even correct, from a spiritual perspective. In contrast, those who
permit the sale argue that the Torah never meant for the mitzva of shemitah to bring an end to the
settlement of Eretz Israel, and if fulfillment of the mitzva will cause the land to be abandoned, it is
desirable to utilize a circumvention and prevent such an outcome.

The same applies also to the sale of chametz.[4] The Torah commands a person to rid himself of
all his chametz and utterly destroy it. It is, however, possible to circumvent the command by selling
the chametz. If we are dealing with ordinary household quantities of chametz, the right thing to do
is clearly to fulfill the Torah's mitzva and not to circumvent it. However, the Torah never meant
that the mitzva of destroying chametz should destroy a person's livelihood. Therefore, when the
Jews began to do business with chametz, and their livelihoods depended on it, circumvention
became a necessary and legitimate option for those that circumstances brought them to it.

Even today, then, it may be argued that the circumvention of selling chametz for one whose
livelihood depends upon it, such as grocery store owners, bakeries, and the like, but it is not
justified for the average person who wishes to save the small amount of spaghetti or whiskey
remaining in his cupboard, and regarding whom the verse states: "But on the first day you shall
destroy the leaven from your houses."

FOOTNOTES:

[1] A comprehensive summary of the topic may be found in Encyclopedia Talmudit, s.v., ha'arama.

[2] An absolutely parallel passage regarding the malkhuyot, zikhronot, and shofarot is found in Rosh ha-Shana 32a.

[3] Kovetz He'arot, sec. 75, no. 1-2; Kovetz Shi'urim, Betza, no. 67.

[4] I repeat that what we are saying here related to the sale of chametz on the assumption that we are dealing with ha'arama of the

type discussed above. We do not discuss here the efficacy of the sale or the many halakhic problems connected to its execution.

Similarly, we are ignoring the opposite possibility that we are not dealing here with ha'arama at all, but rather with the proper

fulfillment of the mitzva of bi'ur chametz.

33
 Old Town Bridge Tower, Prague during 1848 revolution

JEWISH SCHOLARS WELD OLD LAWS TO NEW TIMES

Irit Pazner-Garshowitz writes:

It's a familiar sight in Israel: A hot musty room, walls lined with hundreds of holy books
bound in brown leather and a small group of bearded men clad in yarmulkes and
traditional black suits sitting hunched over religious Jewish texts.

34
But this particular group of six men is unique. They are trying to bridge the gap between
contemporary life in Israel, with all its complexities, and ancient Jewish laws.

They are part of a team of 30 scholars and technicians who, at a time of growing tension
between secular and religious Jews, work at the Jerusalem Institute for Science and
Halacha.

With widespread outrage among secular Israeli Jews over the threatened imposition of
more religious restrictions on their freedoms, these traditional scholars continue finding
ingenious ways to circumvent many Halachic (Jewish law) rulings, or at least to operate
more easily within them.

Visitors entering the institute pass a peculiar array of inventions displayed like a science
exhibit, each with a little explanation printed beneath it, heralding mechanisms like the
Shabbat (Sabbath) elevator or telephone.

"There is no Jewish, or non-Jewish community, anywhere that has not benefited directly
or indirectly from our work," declares a jovial, white-bearded Rabbi Yitzhak Levy
Halperin, 75, who established the Institute of Halacha some 30 years ago.

He has spent the last three decades researching and investigating centuries-old Halacha,
seeking answers and precedents that may help link traditional Judaism with modern
developments in science, technology and medicine.

"The issues our predecessors dealt with are amazingly parallel to our own--the same
concepts and technical philosophy," Halperin said, explaining that the answers can all
be found in the ancient legal texts.

"I believe that some of what they wrote is applicable to us. They definitely dealt with
issues that were only theoretical then but are completely practical today," he said.

Traditional Jewish law bars Jews from performing certain tasks on the Sabbath, those
that were considered not only labor- and energy-expending but also creative, such as
lighting a fire. Today, that means that on the Sabbath, observant Jews cannot take any
35
action such as turning on a light, using a phone or riding in an elevator. They also are
barred from driving cars and operating machinery.

But, according to Halperin, Jewish law is a legal system that also has "purposely placed
loopholes to provide opportunities to modify the law and make life better and easier."

Applying Halachic principles to allow use of modern electrical systems led to the
development of a device that enables the user to operate electrical devices without
technically activating a switch.

The concept is based on pulses of light beams constantly being sent to a charging circuit
where they prevent it from operating an electrical device. When the user interrupts these
pulses by moving a little barrier, the mechanism turns on.

The user has technically not taken any action or broken the Sabbath rules. Halperin
explains it with a unique mesh of modern technical Hebrew and direct quotes from
ancient texts.

The institute recently completed planning for the installation of six Sabbath elevators
in high-rise buildings in Panama. Halperin said that while seeking an answer to the
prohibition against using elevators, he spent much time with elevator manufacturers
and developed a technical understanding of their operation.

In the end, the answer was simple. Observant Jews cannot press a button to set an
elevator in motion. But if the elevators are programmed to stop on every floor, the user
does not need to activate the mechanism. Today Sabbath elevators are common in many
Israeli high-rises.

Halperin complains that limited government funding and a dearth of private donations
are hampering the institute's research.

36
 Secular Law Enforcement of the Heter 'Iska

Kenneth H. Ryesky writes:12

Introduction:

A Jew is prohibited from charging interest (ribit) to another Jew. 1 The Heter 'Iska was
developed by the Rabbis in order to structure business transactions in such a manner as to avoid
running afoul of the prohibitions against ribit.2 The Heter 'Iska principle is based upon the
borrower and lender agreeing to be partners in a business venture, whereby one partner invests
money and the other uses his entrepreneurial skills to manage the venture. The investor-partner
can thereby earn "profit" attributable to his portion of the joint business venture, and the sharing
of such profit by the manager-partner would not constitute payment of interest upon a loan. The
arrangement thus has characteristics of both a loan and a trust.3

12 https://www.jlaw.com/Articles/heter1.html
37
Ideally, the business transaction is successful for all concerned parties. Realistically, such is not
always the case, and disputes often arise as the parties to the unfortunate deal seek to enforce
their rights and protect their property. The reality is that Jewish parties to ill-fated Heter
'Iska arrangements sometimes resort to the secular courts, a course of action fraught with
halachic issues.4 As detailed in this article, actual resolutions of disputes involving Heter 'Iska in
the normative secular American court system can and do leave something to be desired from a
halachic perspective. In addition to the usual propensities for litigants to disparage one another
unnecessarily, parties to Heter 'Iska disputes in secular courts can easily make contentions in the
heat of the dispute which, in the given context, can be perceived as minimizing the validity of
halacha. Furthermore, there is the risk that interest can be imposed by the secular courts in a
manner contrary to halacha.

The purpose of this article is to explore and analyze the American legal system in its approach
to situations involving a Heter 'Iska, with an eye towards formulating a Heter 'Iska that the
American courts can be expected to enforce in a manner as nearly consistent as possible with
halachic parameters. Heter 'Iska enforcement by courts in Israel, a land of diverse and often
discordant legal systems, 5 is beyond the ambit of this article.6 Prior to directly discussing
the Heter 'Iska per se, this article covers two essential background topics, the American law
concepts of interest and the American courts' approach to the Beth Din as a form of arbitration.

The examples and citations of American secular law in this article will be drawn largely, though
not exclusively, from New York state law, a function more of the fact that the author lives and
practices law in New York than of any superiority of the New York law over that of other states.
Emphasis upon the law of New York does not necessarily detract from the utility of this article,
however. For one thing, New York is disproportionate among the states in its numbers of people,
Jews, and Jewish religious institutions.7 Furthermore, the New York courts are respected as
precedent setting tribunals by numerous other courts in the United States, which often cite New
York court decisions as authority for their own. 8 From a practical standpoint, the secular lawing
New York is therefore usually relevant to most situations involving Jews in America.

The Beth Din in American Secular Law

In American secular law, the normative method for resolving disputes is for disputing parties to
take the matter to the secular court system, which will apply the law of the jurisdiction to impose
a settlement. The parties can choose to circumvent the normative method by specifying that the
dispute will be resolved by the application of alternate law and/or resolution by alternate tribunal.
Parties to a contractual agreement can and often do specify that the laws of a particular state shall
govern the contract. 15 New York and other states will readily apply the law of a sister state when
such is prescribed as the governing law by the parties. 16 Where the law of a foreign nation is
specified as applicable, however, the courts in New York and other states are not necessarily so
quick to apply such law, and impose certain burdens upon the party seeking to have the foreign
law applied.17 Parties claiming applicability of a foreign nation's law must often specifically

38
request the court to do so, 18 and must sufficiently set forth the substance of the foreign law they
seek to have the courts apply.19

When parties to a contract specify halacha as the law governing the contract, the secular courts do
not necessarily apply the halacha in the same sense as they would the laws of a typical foreign
jurisdiction.20 The courts will, however, apply secular law to enforce a contract that comports with
the secular law, notwithstanding that the contract might coincidently be in a halachic format, such
as a ketubah. 21

Parties to civil disputes can circumvent the normative court system and its associated formalities,
procedures, rules of evidence, time delay and paperwork (and, of course, the inherent monetary
expense). The American secular law provides for various alternate dispute-resolution methods,
most notably, arbitration. Even within the normative secular court system the parties often agree
to dispense with many of the courtroom formalities by having their case decided by a court
arbitrator.

American law does not weigh lightly the court system access rights accorded the citizenry; rights
necessarily waived in the arbitration process. Therefore, the American secular courts will only
enforce most arbitrations when the disputing parties expressly agree to resolve their differences
through arbitration.24

As the secular court systems become increasingly plagued by work overloads and scarce
resources,25 one can expect arbitration to be increasingly favored by the courts and disputant
parties as a means of resolving differences.26

Because halacha looks with very strong disfavor upon Jews' bringing their disputes with one
another before non-Jewish or secular courts (arcaot), 27 Jewish communities, wherever domiciled,
have traditionally established rabbinical courts, known as Batei Din, to resolve differences
between members of the community.28 The institution of the Beth Din has been characterized in
one New York court decision as follows: "[The Beth Din] method of arbitration has the imprimatur
of our own judicial system, as a useful means of relieving the burdens of the inundated courts
dealing with civil matters."29

The secular courts thus view the Din Torah process of the Beth Din as a type of arbitration, and
are strongly disposed to enforcing the decisions regarding commercial matters rendered
thereby. 30 Indeed, arbitration is given great preference in halacha over any formal court system as
a means of resolving disputes among individuals. 31 As with any other type of arbitration, however,
a Beth Din decision will be vacated by the secular courts if the threshold secular law requirement
of a written arbitration or submission agreement is not demonstrated. 32 Similarly, a Psak Beth Din
(ruling) will also be vacated upon the showing of such substantial injustices as arbitrator partiality
for or against a party to the dispute,.33 decisions beyond the scope of the arbitration, 34 refusal to
allow a party to present valid witnesses or evidence, 35 failure to set forth a definite and final record
of the award, or failure to include interested and necessary parties in the arbitration proceeding.
Notwithstanding such exceptional events, the secular courts will usually uphold an arbitration
decision, including one handed down by a Beth Din.

39
Secular Courts' Treatment of the Heter 'Iska:

Disputes involving Heter 'Iska arrangements have on occasion been brought before the secular
courts. A sampling of postures of the various secular courts towards the Heter iska is instructive.

In a footnote to a decision, the United States Court of Appeals for the Ninth Circuit (which covers
the western United States) characterized a Heter 'Iska as "... a religious document purporting to
characterize the bank and those to whom the bank charges interest as a 'venture' in order to avoid
violation of religious law." 38

In the case of Barclay Commerce Corp. v. Finkelstein,39 the Appellate Division of the New York
Supreme Court found the Heter 'Iska to be "... merely a compliance in form with Hebraic Law...",
and went on to find that the defendant's counterclaim of a joint venture raised what was "... at best
a `phantom' issue [which was] clearly without merit." The same Court maintained its stance more
than thirty years later, when it cited its own Barclay opinion in Arnav Industries, Inc. Employee
Retirement Trust v. Westside Realty Associates,41 another dispute involving a Heter 'Iska.

In the Arnav Industries case, one of the defendants had executed a mortgage note in secular format,
and had written above his signature the Hebrew phrase "AI Pi Heter 'Iska."42 No Shtar 'Iska
document was ever executed, however, and furthermore, the mortgage note specifically provided
that:

[nothing herein or in the mortgage is intended to create a

joint venture, partnership, tenancy-in-common or joint
tenancy relationship between Borrower and Lender, nor
to grant Lender any interest in the Mortgage Property
other than that of creditor or mortgagee.
Presented with a written agreement that appeared complete and unambiguous on its face, the Court
was constrained to rule as it did in the Arnav Industries case because it could not consider oral
evidence to contradict the terms of the written document. 44 The result might arguably have been
different if the parties had in fact executed a Shtar 'Iska in written form.

In Leibovici v. Rawicki ,45 the issue before New York City Civil Court in New York County
(Manhattan) was whether the transaction between the parties was usurious under the New York
secular law (if it was "usurious", then the plaintiffs' claim would be defeated). As noted earlier, the
concept of "usury" in the American secular law is dependent not upon whether interest is charged,
but rather, upon the rate of the interest. The Court found that the defendant could not raise the
defense of usury because he himself had promoted the investment given to him by the plaintiffs.
While the Court did view the transaction to be in the nature of a joint business venture rather than
a loan, the resulting decision was based upon the terms set forth in the relevant document,
regardless of whether the transaction could be characterized as a loan, joint venture, or anything
else. Applying the terms of the written document, the Court found that the plaintiff could withdraw
the principal with three-months' notice, and therefore, the Court awarded the plaintiffs their
principal investment of $5,000.00, plus interest from what ostensibly was the would-be withdrawal
date.

40
In a similar case, Bollag v. Dresdner,47 the Court found that the defendant could not interpose the
defense of usury and awarded the plaintiff his $15,000.00 investment. The Court further found that
the plaintiff's own admission that his religious beliefs forbade the charging of interest precluded
any recovery af interest on the loan, but did not bar the plaintiff from recovering interest after the
court entered its judgment. The Bollag decision effectively enforced the halachic prohibition
against ribit, but only up to the date of the Court's decision. Following the entry of the Court's
decision, the court specifically applied the secular statutory interest to the debt.

In light of the Leibovici and Bollag decisions, it seems that the secular court decisions involving a
Heter 'Iska would ultimately impose interest even under the most favorable circumstances when
the secular courts affirmatively attempt to respect or defer to halacha. Those courts that do not give
regard to halachic considerations can be expected to render decisions that comport all the less with
halachic norms.

A most blunt and revealing secular court attitude towards the Heter 'Iska is set forth in a decision
handed down by the New York Supreme Court of Kings County (Brooklyn) in the case of Berger
v. Moskowi tz:50

Defendants, if they chose, may call this instrument a

business transaction and the ten percent owing on the
principal, profit, not interest, but the intent as well as the
end result is still the same: the subject agreement is an
instrument for the payment of money only and the ten
percent represents interest. Despite all of defendants'
objections, the note itself requires the defendants to make
certain payments and nothing else.
In the Berger case, the plaintiffs presented to the Court a document written in Hebrew entitled
"Shtar 'Iska", which was signed by the defendants, along with an uncontroverted English
translation of the same.51 On the document, one of the defendants had signed his name beneath a
statement that all "Laws of Guarantee" (" dinei arevut" in the operative Hebrew document signed
by the parties) were applicable. 52 The defendants argued that the phrase "Laws of Guarantee"
referred to Jewish law and that Jewish law should therefore be applied by the Court, 53 but that
contention was apparently disregarded in the Court's ruling. 54 There is no indication in the record
that the parties attempted to resolve the matter before a Beth Din, and apparently no specific
written agreement [existed] between the parties that disputes arising in the course of the deal be
submitted to arbitration, Beth Din or otherwise. One of the defendants did contend that the phrase
"Laws of Guarantee" referred to the Jewish laws of guarantee and that the phraseology was used
with the express purpose that any dispute would be resolved before a Beth Din,55 but the Court
apparently ignored that contention. 56 Had a provision for resolution of disputes by a Beth Din
been set forth with specificity in the Shtar 'Iska document the Court probably would have enforced
the provision.57

In the Leibovici case discussed earlier, the extent of any joint venture relationship between the
parties was not particularly relevant to the Court's decision. It further must be noted that Leibovici
was decided in the New York City Civil Court, one of the lowest tribunals New York State court
system (albeit one of the busiest in the world). The American federal courts are required to apply
41
the law of the state, and must defer to the highest court in the state in determining state
law.59 Federal agencies, including and especially the Internal Revenue Service, must likewise defer
to the rulings of the highest court in a state over those of a lower court.60 Weighing the court
decisions according to the ranks of the courts, the secular American law clearly views the Heter
'Iska arrangement as a loan transaction, according little if any significant recognition of any joint
venture relationship between the parties.

Should the courts' postures ever shift towards recognition of a joint venture in the Heter 'Iska
transaction, there would be potential implications that could further complicate the secular law's
approach to enforcing such a transaction. For one thing, American secular law regards partners
and other joint venturers as fiduciaries with respect to one another, and imposes upon such
fiduciaries a standard of undivided loyalty, a higher standard of conduct than the standard of simple
honesty that is imposed upon parties to common marketplace transactions. 61 Joint venturers may
not exploit for themselves a business opportunity that rightly belongs to the joint venture unless
the co-venturer is informed and gives approval. Such an "opportunity" may consist if nothing more
than a "tangible expectancy" of a business advantage, and might even be usurped in certain
situations by one co- venturer acquiring property in the same "line of business" engaged in by the
joint venture.62 Thus, if the secular law would ever seriously view a Heter 'Iska arrangement as a
joint venture, the parties to the arrangement might conceivably be saddled with responsibilities
and liabilities above and beyond those placed upon borrowers and lenders.

Complicating the situation all the more is the fact that in a Heter 'Iska arrangement, the borrower
is designated as the managing partner and the lender the silent partner. The fiduciary
responsibilities imposed upon partners by the secular law are particularly applicable to managing
partners."63 In most business ventures the managing partner tends to occupy the position of
strength and power with respect to the silent partner. In most loan transactions, however, the
borrower typically tends to be in a weaker position than the lender. If the secular courts were ever
to emphasize the joint venture aspects of the Heter 'Iska arrangement, then there could potentially
be a situation where the weaker party is treated at law as the stronger party would normally be
treated, and vice versa.

Other implications could potentially arise from the secular courts' treatment of the Heter 'Iska
arrangement as a joint venture, including tax implications dependent upon the characterization of
the property interests and liabilities of the respective parties to the transaction. For example, in the
context of the Estate Tax, deductions of debts from the gross estate are only allowable to the extent
that the debt is enforceable at law.64 lf, arguendo, under state law the borrower is not obligated to
pay the "profit" to the lender because the Heter 'Iska arrangement was a joint venture in which the
lender assumed the risk, the debt would not be enforceable and therefore not available as a
deduction from the gross estate.

Kenneth H. Ryesky, Esq. - Attorney-at-Law, East

Northport, NY. Member of the Bar, New York, New Jersey,
and Pennsylvania.

1. Shemot xxii, 24; Vayikra xxv, 36-38; Devarim xxiii, 20.

42
2. See, e.g., J. Stern, "Ribis: A Halachic Anthology", IV J. Halacha
Contemp. Soc'y 46 (Fall 1982), at 66 - 69.
3. Baba Metzia 104b.
4. See Gittin 88b; see also S. Krauss, "Litigation in Secular Courts", III
J. Halacha Contermp. Soc'y 35 (Spring 1982).
5. See, e.g. B. Lifshitz, "Israeli Law and Jewish Law -- Interaction and
Independence", 24 Israel L. Rev. 507 (1990).
6. The often severe inflation that has historically plagued Israel's
economy has further complicated legal matters with respect to cases
having possible ribit issues. See, e.g., Rosenbaum v. Zeger, 9 Piskei
Din 533 (1955); see generally A. Levine, "Inflation Issues in Jewish
Law", V J. Halacha Contemp. Soc'y 25 (Spring 1983).
7. See, e.g. 91 American Jewish Yearbook, table at 207, which shows
New York in 1990 ranking second among the States in total
population (17.9 million), first in Jewish population (1.8 million) and
first in percentage of Jews in the total population (10.3 %). See also
Tillem, ed., The 1987 -88 Jewish Alrnanac, "yellow pages" section,
passim (New York entries for various Jewish institutions, including
mikvaot and Orthodox synagogues, decidedly outnumber those from
other states).
8. See, e.g. Jones v. Approved Bancredit Corp., 256 A.2d 739, 742,
(Del. 1969), 6 U.C.C. Rep. Serv. (Callaghan) 1001, 100.5; Ford v.
Ford 592 So.2d b98, 701 (FIa.App. 3 Dist. 7991); Lambeth v. Lewis,
114 Ga.App. 191, 150 5.E.2d 462, 463; First Bank of T'rust Co.,
Palatine v. Post, 10 Ill.App.3d 127, 293 N.E2d 907, 9I0 (1973);
Graves v. John Wunder Co., 205 Minn. 163, 286 N.W. 235, 236
(I939); State v. Dreher, 251 N.J.Super 300, 598 A.2d 216, 22l (App.
Div. 1991); PICPA Foundation v. Cornmonwealth, 598 A.2d I078,
I083 (Pa. Comwlth 1991). New York court decisions are also cited by
tribunals in other nations, including Israel, see, e.g. Kossoy v. Bank
Y. L. Feucjitwanger, Ltd., 38(3) Piskei Din 253 (1984).
9. See, e.g. Iggerot Moshe, Choshen Mishpat 29.
10. See, e.g. N.Y. Gen. Bus. Law 13 (malicious service of process on
Saturday upon a person who observes Saturday as a Sabbath is a
misdemeanor); N.Y. Relig. Corp. Law 207 - 209 (1990)(relating to
Jewish congregations); N.Y. Agric. & Mkts. Law sections 201-a -
201-j (1991)(New York Kosher Enforcement laws); N.J.S.A. 2C:21-
7.2 et seq. (1988)(New Jersey Kosher Food Law);18 Pa.C.S.A.
section 4107.1 (1978)(Pennsylvania criminal prohibition against
kosher food deception).
11. E.g., Estate of Berkman v. Commissioner, T.C. Memo 1979-46, 38
TCM (CCH) 183 (United States Tax Court held that stone erection
and setting was an integral part of funeral. service for the Jewish
decedent); Matter of Feifer, 151 Misc. 54, 270 N.Y.S. 905 (Sur. Ct.
N.Y. Co., l934) (Expense of paying someone to say Kaddish for
decedent not allowed as an expenditure from Estate funds inasmuch
as Kaddish was an obligation personal to the Estate's administrator,
the decedent's surviving son).
12. See, e.g. N.Y. Gen. Oblig. Law sections 5-501 et seq.
13. Shemot xxii, 24; Vayikra xxv, 36-38; Devarim xxiii, 20.
14. See, e.g. I.R.C. sections 6601 et seq. (interest on taxes imposed by
Internal Revenue Code); I.R.C. section 7872 (interest imputed to
certain below-market loan transactions); N.Y. Civ. Prac. Laws &
Rules 5002 - 5004 (interest on judgements); N.Y. Tax Law section
991 (interest on New York taxes); 41 Pa.C.S.A. sections 101 et seq.
(Pennsylvania interest statutes); see also Milbrandt v. A.P. Green
Refractories Co., 79 N.Y.2d 26, 580 N.Y.S.2d 147 (1992) (Clarifies
rules for imposition of pre-verdict interest in wrongful death awards);
Banks Estate, 8 Pa. Fiduc. 2d 338 (Orph. Ct. Phila. Co. 1988), aff'd
127 Pa.Comwlth 394, 561 A.2d 1298 (189), appeal denied 525 Pa.

43
 586, 575 A.2d 116 (1990) (Deductibility of interest expenses for
Federal and Pennsylvania Estate Tax purposes).
15. See, e.g. Woodling v. Garrett Corp., 813 F.2d 543, 551 (2d Cir.
1987); see also N.Y. Gen. Oblig. Law 5-1401.
16. See, e.g. N.Y. Civ. Prac. Laws & Rules 4511(a) (Courts required to
take judicial notice of the law in sister states).
17. See, e.g. N.Y. Civ. Prac. Laws & Rules º 3016(e) and 4511 (b).
18. Schedlmayer v. Trans Intern. Air Lines, 99 Misc.2d 478, 483, 416
N.Y.S.2d 461, 465 (N.Y. Civ. Ct., N.Y. Co. 1979).
19. Cf. Dresdner Bank AG v. Edelmann, 129 Misc.2d 686, 493 N.Y.S.2d
703 (Sup. Ct. N.Y. Co. 1985) (Plaintiff sufficiently set forth the law
of Germany in its pleadings) with Elghanayan v. F. Elghanayan, 148
Misc.2d 552, 560 N.Y.S. 2d 955 (Sup. Ct. N.Y. Co. 1990) (Substance
of Iranian law not specified in the pleadings nor otherwise reasonably
ascertainable by the Court).
20. See Hurwitz v. Hurwitz, 216 A.D. 362, 215 N.Y.S. 184 (2d Dept.
2926). (In an action where decedent's children sought to evict their
stepmother, the decedent's widow, from the decedent's residence, the
court declined to apply the "Laws of Moses and Israel" per se to
enforce the widow's ketubah. Nevertheless, the ketubah itself was
found to be a valid contract under New York law to the extent that it
related to the widow's rights in New York real property by virtue of
the fact that it was properly executed in New York by or on behalf of
two New York residents.).
21. Avitzur v. Avitzur, 58 N.Y.2d I08, 459 N.Y.S.2d 572, 446 N.E.2d
136 (1983), cert. denied 464 U.S. 817,104 S.Ct. 76, 78 L.Ed.2d 88
(1983); Hurwitz v. Hurwitz, Id.
22. See generally Abramson, "A Primer on Resolving Disputes Lessons
from Alternate Dispute Resolution", N.Y. St. Bar J., March/April
1992, at 48 (Brief overview of alternate dispute resolution
techniques); see also D. Siegel, New York Practice 607-09 (2d
Ed.1991).
23. See, e.g. N.Y. Unif. District Court Act section 1804-A, which
prvvides for arbitration of small commercial claims in District Court.
(The author has served as a Court Arbitrator for such claims in the
District Court of Suffolk County, New York). See also N.Y.C. Civil
Court Act 1844-A (applies same provisions to the New York City
Civil Court).
24. Thos. Crimmins Contracting Co., Inc.v. City of New York, 74 N.Y.2d
166, 171, 544 N.Y.S.2d 580, 582, 542 N.E.2d 1097, 1099 (1989);
Schubtex, Inc. v. Allen Snyder, Inc., 49 N.Y.2d 1, 424 N.Y.S.2d 133,
399 N.E.2d 1154 (1979). There are certain "compulsory arbitration"
exceptions to the law, for which the arbitrations are enforceable
regardless of whether the parties specifically agree to arbitration. See,
e.g. N.Y. Insurance Law 5l05(b); N.Y. Labor Law 716.
25. See, e.g. Gary Spencer, "$963 Million Sought for Courts in 1992-93",
N.Y.L.J., December 2, 1991 at 1. On each of the next three days, the
New York Law Journal similarly featured a front page article by the
same writer on different aspects of the fiscal crisis affecting the New
York courts. See also Letta Tayler, "Civil Courts Bogged Down,"
Newsday (Long Island, NY), January 3, 1992, page 4 (describes
overloaded condition of the Nassau and Suffolk County (NY) court
systems). Similar conditions proliferate throughout New York and
other states.).
26. See, e.g. Meisels v. Uhr,145 Misc.2d 571, 573-74, 547 N.Y.S2d 502,
505-06 (Sup. Ct. Kings Co. 1989) (dictum), aff'd 173 A.D.2d .542,
570 N.Y.S.2d I007 (2d Dept.1992), rev'd on other grounds 79 N.Y2d
526, 583 N.Y.S2d 951, 953 N.E.2d 1359 (1992).
27. Gittin 88b; Cf. Kilstein v. Agudath Council of Greater N.Y., Inc., 133
A.D.2d 809, 520 N.Y.S.2d 189 {2d Dept. 1987), lv. to appeal denied
71 N.Y.2d 805 (1988). (Observant Jew declined to bring matter

44
 before secular courts while the matter was pending before a Beth
Din).
28. See, e.g. E. Goodenough, The Jurisprudence of the Jewish Courts in
Egypt, (Yale Univ. Press, 1929); N. J. Laski, The Laws and Charities
of the Spanish and Portuguese Jews of London 68 (1952); D. M.
Shohet, The Jewish Courts in the Middle Ages (l931), reprinted in III
Studies in Jewish Jurisprudence (1974).
29. Mikel v. Scharf,105 Misc.2d 548, 551, 432 N.Y.S.2d 602, 605 (Sup.
Ct. Kings Co. 1980), aff'd 85 A.D.2d 604, 444 N.Y.S.2d 690 (2d
Dept.1981). Certain procedural irregularities in this particular matter
led the Court to vacate the Din Torah award; however, the Court
indicated its respect for and approval of the Din Torah institution in
general. The case is also noteworthy because the parties, both
observant Jews, who apparently faced the prospect of arbitration
before a secular Court Arbitrator, opted for a rabbinical court instead.
30. See Tugendrajch v. Heifetz, 560 F.Supp. 906 (S.D.N.Y. 1983);
Elmora Hebrew Center, Inc. v. Fishman;125 N.J. 404, 593 A.2d 725
(1991); Meisels v. Uhr, 79 N.Y.2d 526, 583 N.Y.S2d 951, 953
N.E.2d 1359 (1992). Kilstein v. Agudath Council of Greater N.Y.,
Inc.,133 A.D.2d 809, 520 N.Y.S.2d 189 (2d Dept. 1987), leave to
appeal denied 71 N.Y2d 805 (1988); Kingsbridge Center of Israel v.
Turk, 98 A.D.2d 664, 469 N.Y.S.2d 732 (lst Dept. 1983); Berman v.
Shatnes Laboratory, 43 A.D.2d 736, 350 N.Y.S2d 703 (2d Dept.
l973); Rosenbaum v. Drucker, 346 Pa. 434, 31 A.2d 117 (1943); see
also Zyskind v. Hebrew Academy of the Five Towns of Rockaway,
Misc.2d N.Y.S.2d , N.Y.L.J., March 20, 1992 at 27 (Sup. Ct., Nassau
Co.). (Court effectively preserved the status quo pending Din Torah
resolution of a dispute between the parties.)
31. See D. Bressler, "Arbitration and the Courts in Jewish Law", IX J.
Halacha & Contemp. Soc'y 105 (Spring l985).
32. Hellman v. Wolbrom, 31 A.D.2d 477, 298 N.Y.S.2d 540 (lst Dept.
1969).
33. See, e.g. Mikel v. Scharf, 105 Misc.2d 548, 551, 432 N.Y.S.2d 602,
605 (Sup. Ct. Kings Co.1980), aff'd 85 A.D.2d 604, 44 N.Y.S2d 690
(2d Dept. 1981). Cf. Devarim i:l6-17, xxui: 6-9.
34. See, e.g. Mikel v. Scharf, Id.
35. Ibid.
36. Kozlowski v. Seville Syndicate, Inc., 64 Misc.2d 109, 314 N.Y.S.2d
439 (Sup. Ct. N.Y. Co. 1970).
37. See, e.g. Levovitz v. Yeshiva Beth Henoch Inc., 120 A.D.2d 289, 508
N.Y.S.2d l96 (2d Dept.1980).
38. Barclay's Discount Bank Ltd. v. Levy 743 F.2d 722, note 2 at 724
(9th Cir. 1984).
39. Barclay's Commerce Corp. v. Finkelstein, 11 A.D.2d 327, 205
N.Y.S.2d 551 (lst Dept. 1960). Lv. to appeal denied, 11 A.D.2d 1019,
207 N.Y.S2d 995 (1960). The plaintiff in this case is not to be
confused with the plaintiff in the case cited above in the prior
footnote.
40. Id. at 328.
41. Arnav Industries, Inc. Employee Retirernent Trust v. Westside Realty
Associates, 180 A.D.2d 463, 579 N.Y.S.2d 382, (1st Dept 1992).
42. Id.
43. Id.
44. See Helmsley v. Pannnick, 13l A.D.2d 940, 516 N.Y.S.2d 804 (3d
Dept. 1987).
45. Leibovici v. Rawicki, 57 Misc2d 141, 290 N.Y.S2d 997 (N.Y.Civ.
Ct., N.Y. Co. 1968), aff'd per curiam 64 Misc.2d 858, 316 N.Y.S.2d
l81 (N.Y. App. Term, Ist Dept.1969).
46. Id. at 145, 290 N.Y.S.2d at l00l.
47. Bollag v. Dresdner, 130 Misc.2d 221, 495 N.Y.S.2d 560 (N.Y. Civ.
Ct. Kings Co.1985).

45
 48. See N.Y. Civ. Prac. Laws & Rules section 5002, which provides for
interest from date of judgment until actual payment.
49. Bollag v. Dresdner, supra at 226.
50. Berger v. Moskowitz, _ Misc.2d , N.Y.S.2d , N.Y.L.J., October 30,
l991 at 25, Index No. 15601-91 (Sup. Ct. Kings Co.1991 ).
51. Exhibits 1 and 2 to Affidavit of Plaintiff, Berger v. Moskowtz, Id.
52. Id.
53. Affirmation of John J. Hayes, Esq. at 3, Affidavit of B. Moskowitz at
5, Berger v. Moskowitz, Id.
54. See notes 17 through 21, supra; and accompanying text.
55. Affidavit of Israel Joseph Stern at 2, Berger v. Moskowitz, suprn,
note 50.
56. See notes 24 and 32, supra, and accompanying text.
57. Ibid.
58. See notes 45 and 46, supra, and accompanying text.
59. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188
(1938).
60. Commmissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, I8
L.Ed.2d 886 (1967).
61. Birnbaum v. Birnbaurn, 73 N.Y.2d 461, 541 N.Y.S2d 746, 539
N.E.2d 574 (1989); Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545
(1928); Cialeo v. Meinhard, Misc.2d _ N.Y.S.2d , N.Y.L.J., June 18,
1992 at 24, 25 (Sup. Ct. N.Y. Co.); Plotch v. Plotch, _ Misc.2d ,
N.Y.S.2d , N.Y.L.J., June 11, 1992 at 25 (Sup. Ct. Bronx Co.).
62. Plotch v.Plotch, _ Misc.2d __ N.Y.S.2d , N.Y.L.J., June 11,1992 at 25
(Sup. Ct. Bronx Co.).
63. Birnbaum v. Birnbaum, 73 N.Y.2d 461, 465, 541 N.Y.S.2d 746, 747,
539 N.E.2d 574 (1928); Meinhard v. Salmon, 249 N.Y. 458, 164 N.E.
545 (1928).
64. Treas. Reg. section 20.2053-4.
65. Bava Kama 113b.
66. The document need not be in the English language, but if it is
presented to a secular court there will be a need for an English
translation and an affidavit of the translator. See, e.g. N.Y. Civ. Prac.
Laws & Rules 2101 (b).
67. See Appendix to this article for a specimen document. The document
set forth in the Appendix is essentially in the nature of the witnesses
memorializing the fact that the borrower and lender made an
agreement. Signature upon the document by the parties themselves
will render the document into a valid and enforceable arbitration
agreement for purposes of the secular law. See N.Y. Civ. Prac. Laws
& Rules 7501.
68. Discussed supra, see notes 50 through 57 and accompanying text.
69. Baraitha d'Rabbi Yishmael - Sifra, P'tichah.
70. M. J. Broyde, "The Practice of Law Accurding to Halacha", XX J.
Halacha & Contemp. Soc'y 5, 6-16 (Fall 1990); S. Krauss, "Litigation
in Secular Courts", III J. Halacha Contemp. Soc'y 35 (Spring 1982).
71. Peah I:1; Shabbat 127a.

Jewish Law maintains an archive of articles concerning how Jewish law perceives
American law. The articles are listed below, by topic and title:
https://www.jlaw.com/Articles/

46
Thinking about the last year on this last day of the Hebrew cycle and the way COVID has forced
me to choose between rational scientific thinking and magical/mystical thinking in ways I never
would have imagined (like not stepping foot inside my beloved unmasked shteibl) I the present
the following article….

Plague, Practice, and Prescriptive Text

Jewish Traditions on Fleeing Afflicted Cities in Early Modern Ashkenaz

Moshe Dovid Chechik and Tamara Morsel-Eisenberg13 write:14

13 Moishe Dovid Chechik is a historian of halakha in Medieval Ashkenaz. He received his MAcum laude at the Talmud Department
of the Hebrew University of Jerusalem. His thesis won the Polonski Prize for originality and creativity. He is currently writing his
PhD at the Hebrew University, where he won the Dean’s Fellowship for outstanding students.
Tamara Morsel-Eisenberg is a historian of Early Modern Jewish cultural and intellectual history in Europe. She defended her PhD,
titled The Organization of Halakhic Knowledge in Early Modern Europe: The Transformation of a Scholarly Culture at the
University of Pennsylvania’s history department in 2018. She is currently a Junior Fellow at the Harvard Society of Fellows.

14
https://brill.com/view/journals/jlrs/8/2-3/article-p152_152.xml?language=en
47
Abstract
This article studies the fate of a contradiction between practice and prescriptive text in 16th-
century Ashkenaz. The practice was fleeing a plagued city, which contradicted a Talmudic
passage requiring self-isolation at home when plague strikes. The emergence of this
contradiction as a halakhic problem and its various forms of resolution are analyzed as a case
study for the development of halakhic literature in early modern Ashkenaz.

The Talmudic text was not considered a challenge to the accepted practice prior to the early
modern period. The conflict between practice and Talmud gradually emerged as a halakhic
problem in 15th-century rabbinic sources. These sources mixed legal and non-legal material,
leaving the status of this contradiction ambiguous. The 16th century saw a variety of solutions to
the problem in different halakhic writings, each with their own dynamics, type of authority,
possibilities, and limitations. This variety reflects the crystallization of separate genres of
halakhic literature.

1 Introduction1
The Talmud (BT Bava Qamma 60b) addresses proper conduct during plague and famine.
Regarding the latter, “famine in the city, scatter your feet [i.e., flee].” Regarding the former,
“plague in the city, gather your feet [i.e., go indoors].” The preference of the Talmud for sheltering
in place during times of plague is unambiguous, yet late medieval and early modern sources
abundantly attest that during times of plague, many Jewish city-dwellers would flee until the
danger had passed. The Jews who fled plague included some of the leading rabbis of those eras.
For instance, one of the best-known attestations to this phenomenon was penned by Rabbi Moshe
Isserles (Rema):2

I, Moshe, […], called Isserles from Krakow, was in the exile to which we fled from our city in
5316 [=1556], due to the stench of the air,3 may it not befall us. We were sojourners in a land not
ours in the city of Shidlov,4 where there is neither fig tree nor grape vine, and barely any water to
drink, […]; a city where bread is scarce and where there is no wood with which to keep warm.5
Thus, there was a clear gap between the conduct prescribed by the Talmud and the behavior of
Jews during plagues. The present study describes how late-medieval rabbis and later the first
generations of Polish-Ashkenazic rabbis, in the 16th century, addressed the practice of fleeing
from the plague.6It analyzes how these rabbis attempted to reconcile the prevailing practice with
the text of the Talmud in their writings, and to determine the proper course of action for their
communities and themselves during the all-too-frequent outbreaks.

The problem faced by the rabbis was simultaneously exegetical, theological, and halakhic (relating
to Jewish religious law).7 It had a textual, theoretical dimension of harmonizing disparate ideas,
sources, laws, and traditions, but it was also a concrete, urgent matter of life and death. Some
sources touch upon theological issues, grappling with questions about the relationship between
Divine providence and human endeavor in the face of catastrophe. This multifaceted problem
affords us a glimpse “backstage,” where these rabbis contended with a disparate array of
considerations and sources as they attempted to explain and even prescribe seemingly problematic
behavior. This view, in turn, exposes some important developments in the modes of rabbinic
writing and halakhic reasoning in early modern Ashkenazic culture.
48
The development we trace covers about two centuries. The practice of fleeing first appears in a
halakhic context in the early 15th century, in a responsum that embeds the Talmudic passage about
sheltering in place within an undifferentiated assortment of sources, observations, and discourses.
As we turn to the 16th century, however, we witness the crystallization of distinct rabbinic literary
genres, such as commentaries, legal glosses, codes, responsa, and sermons. Each of these genres
acknowledges the primacy of fleeing, but when justifying the practice, each employs a mode of
discourse that differentiates that genre from the others. This development, we argue, typifies a
broader trend in early modern Ashkenazic rabbinic writing.

2 The Talmudic Passage: Sheltering in Place

As noted, the prevailing practice of fleeing the city directly contravenes the Talmudic instructions
for times of plague (BT Bava Qamma 60b):

The Sages taught: If there is plague in the city, gather your feet, as it is stated: “And none of
you shall go out of the opening of his house until the morning” (Exodus 12:22). And it is
stated: “Come, my people, enter into your chambers, and shut your doors behind you; hide
yourself for a little moment, until the tempest has passed” (Isaiah 26:20). And it is stated:
“Outside the sword will bereave, and in the chambers — terror” (Deuteronomy 32:25).

This early Tannaitic baraita consists of a pithy instruction — “plague in the city, gather your
feet”—followed by three prooftexts from Scripture. The first, from Exodus, expands Moses’s
instruction to the Israelites to remain indoors during the Plague of the Firstborn to all instances of
plague. The Talmud then clarifies the need for the other two prooftexts as well. The first verse
addresses only the night, so the second verse, from Isaiah, is needed to teach that “gather your
feet” applies as long as the tempest rages, be it day or night. The third verse teaches that even if
remaining indoors may cause terror, one must remain inside.

The Talmud then relates the practice of a prominent sage:

At a time of wrath [i.e., plague], Rava would board up the windows, as it is written: “For death
is come up into our windows” (Jeremiah 9:20).

Subsequently, the Talmud discusses the proper practice in times of famine:

The Sages taught: If there is famine in the city, scatter your feet [i.e., flee], as it is stated: “And
there was a famine in the land; and Abram went down into Egypt to sojourn there” (Genesis
12:10). And it is stated: “If we say: We will enter into the city, then the famine is in the city, and
we shall die there” (II Kings 7:4) …

The Sages taught: If there is a plague in the city, one should not walk in the middle of the road,
because the Angel of Death walks in the middle of the road…

When there is famine in the city, one must flee. In the case of a plague, however, isolating indoors
is the prescribed course of action.

49
The Talmud contains a broad variety of hortative statements carrying different levels of normative
weight. At one end is absolute, binding halakhah, and at the other extreme are folk sayings,
medical recommendations, and general advice — a loose grouping of nonlegal contents known
as Aggadah(“lore”). Between these extremes are customs, traditions, and other statements whose
degree of normativity is ambiguous, indeterminate, or somewhere along the spectrum between law
and lore. Moreover, the associative organization of the Talmud and abrupt transitions between
different types of statements often make it difficult to classify, and thus ascertain the degree of
normativity, of any particular dictum.

The instructions of the Talmud for times of plague and famine seem, prima facie, to fall squarely
on the halakhic end of this spectrum. They exhibit several features of matters of law. The
Babylonian redactors of the passage begin by quoting the baraitot — teachings attributed to
the Tanna’im, the earliest rabbis, who lived in the first centuries of the common era and whose
statements are almost always deemed normative and authoritative. Moreover, in this case,
the baraitot also bolster their practical instructions with biblical prooftexts. Finally, the Talmud
reports that Rava, a central figure in the Babylonian Talmud whose views are almost always
accepted as binding law, not only followed the tannaitic instructions to the letter, but even went
beyond them by covering his windows as well.

It is noteworthy, then, that these instructions do not appear in any post-Talmudic halakhic work
until the 15th century. They are not included in any halakhic composition from the Geonic period
(late first millennium), nor in any of the three main medieval halakhic codes — Halakhot of Rabbi
Yitzḥaq Alfasi (“Rif”; 11th century), Maimonides’s Mishneh Torah (late 12th century),
and Halakhot of Rabbi Asher ben Yeḥiel (“Rosh”; late 13th/early 14th century). They are also
absent from Ashkenazic halakhic compositions and compendiums, from Sefer Ha-Turim (“Tur”)
of Rabbi Ya’aqov, the son of Rabbi Asher, who reorganized material from the codes of Rif,
Maimonides, and Rosh into a practical code.

The primary traditional litmus test of what constitutes a halakhah is inclusion in halakhic codes,
and the codifiers did not include the directives that appear in Bava Qamma 60b. The binary
division of Talmudic material into halakhah and aggadah,8 and the exclusion of aggadah from
legal discourse, crystallized after the Talmudic period. This division appears in the Geonic
academies and was systematized by Rif, who omitted aggadah from his Halakhot — organized
as a halakhic synopsis of the Talmud. Any Talmudic dictum omitted by Rif and subsequent
halakhic codes was, by definition, considered aggadic. Evidently, the statements on plague,
despite having the literary trappings of halakhah, were deemed nonbinding aggadah.
At the same time, none of the codes or halakhic works prescribe any alternative to the Talmud’s
instructions for times of plague. How Jews did respond to plague is not in evidence anywhere in
rabbinic literature from the close of the Talmud until the 13th century, at the earliest, and there is
no record of any attempt to reconcile the instructions of the Talmud with common practice.

One may speculate as to why there was no attempt at reconciliation. For the purposes of this study,
the relevant fact is that after the close of the Talmud, there is no record of how Jews should or did
respond to plague. And as for the conflict between Talmudic instructions and common Jewish
practice is concerned, the first attempts at reconciliation appear only in the early 15th century.

50
3 Flight from Plague in Late Medieval Ashkenazic Sources

Two medieval Ashkenazic sources mention the practice of fleeing from plague. One is difficult to
date but is certainly not older than the 13th century, whereas the other was composed around the
turn of the 15th century. Both sources mention, and even encourage, flight from plague. One
attempts to reconcile this practice with the instructions of the Talmud, while the other offers a
distinction that can serve to solve the apparent contradiction.

3.1 Sefer Ḥasidim

The earliest rabbinic source to addresses the phenomenon of fleeing plague is the 13th-century (at
the earliest) Sefer Ḥasidim:9

If there is plague in the city, and one heard that things are well in another city, they should not go
there, for the Angel of Death has power over those who originate in that land, even aliens, so when
caravans travel from a plagued city to a different land, it is smitten. However, if individuals go,
and their intention is not commercial, it will not cause harm, and they are acting wisely. Anyone
who wishes to escape should go to another land until the plague is arrested, and “May He destroy
death forever” (Isaiah 25:8).10

The author of this passage distinguishes between organized flight in a caravan — which causes
the plague to spread to the country of destination as well — and individuals, who are wise to flee.
This distinction justifies fleeing a plagued city, which can thus be formulated as a sweeping
recommendation: “Anyone who wishes to escape should go to another land until the plague is
arrested.” The passage does not address the directives of the Talmud at all. Rather, it asserts that
groups of people should not flee to an unafflicted city and explains why: the Angel of Death
expands his territory through the movement of large groups and merchandise.

The mention of the Angel of Death in this instance highlights just how difficult it is to disentangle
the different strands of thinking about epidemics present in these sources. To begin with, the Angel
of Death is already present in the Talmudic discussion, rendering it difficult to distinguish whether
the mention of this figure in later sources is a mere linguistic continuity, a paraphrase, or a
discussion of the Talmud. Furthermore, the Angel of Death could be read as a substitute for the
plague itself, a way of speculating about how disease travels and spreads. In this sense, the
discussion is about the empirical reality of plagues and the practical question about the efficiency
of fleeing. In the case of Sefer Ḥasidim, then, the mention that groups should not flee may simply
reflect their empirical knowledge-derived experience and observation that large groups fleeing
from one city to another often took the plague with them, whereas individuals did so less
frequently.

The Angel-of-Death theory may have been an explanation of the facts for the authors of Sefer
Ḥasidim, just as miasmatic theory was for Rema in the 16th century, and as microbial theory has
been since the 19th century. Third, the Angel of Death has a religious role as Divine agent who
collects souls destined for death. Following that connotation, the discussion is not just about how
disease spreads in a pseudo-scientific way, but also about the theological question of Divine justice
and providence versus personal initiative and action.11 Sefer Ḥasidim makes no attempt to overtly
51
explain why only group movement expands the territory over which the Angel of Death holds
power. This is consistent with the genre to which Sefer Ḥasidim belongs: non-legal folk literature.
Accordingly, it does not address the Talmudic directives and does not attempt to ground the
dynamics of the Angel of Death’s territoriality in any explicit theology. It addresses only the
practical aspects: when fleeing is effective and how individuals can save themselves.
The multiple strands of thought — legal, theological, practical — reappear in many of the sources
of this article, sometimes explicitly, at other times merely implied. Often, the different layers of
meaning cannot be separated successfully, nor would doing so properly reflect their multivalence.

3.2 Responsa Maharil

The first source to register the disparity between the common practice of fleeing and the directives
of the Talmud is a responsum — a letter written by a rabbi in response to a query, often from
another rabbi — by Rabbi Ya’aqov ben Moshe Moellin (Maharil, c. 1365–1427), the leading
Ashkenazic halakhist of the early 15th century.12 His responsum is addressed to Rabbi Yehudah
Loewe.13 Maharil opens his answer by paraphrasing the question at hand (which we no longer
have), then presents a brief collage of sources. We present them section by section, with our
comments interspersed:14

[A] Regarding what you wrote that it is apparently forbidden to flee, and so on. In the chapter
“Zeh Borer” [BT Sanhedrin 29a] we say: “Seven years there was a pestilence, yet no one died
before his time.” This implies, somewhat, that one should not flee.

In other words, if, as the Talmud states in this passage, people do not die before their time, then
fleeing would be pointless and even an act of evading divine will. Maharil continues weighing this
issue of divine providence by presenting another Talmudic passage, this one offering a different
view of fate:

[B] However, it seems that this is simply a popular aphorism, for in the first chapter of
[BT] Ḥagigah [4b], we say, “There are those who are swept away without justice,” as in the case
where [the Angel of Death] said to his emissary, “Go bring me Miriam, braider of women’s hair…”
which it states there.

The Talmudic source in BT Ḥagigah reads the verse, “There are those who are swept away without
justice” (Proverbs 13:23) as suggesting that the Angel of Death and his agents are prone to error.
For once he asked his emissary to bring — that is, to kill — Miriam megadla — i.e., braider —
of women’s hair, and instead the emissary killed Miriam megadla — i.e., teacher — of children.
Evidently, the righteous are at risk of undeserved death even under normal circumstances. This is
all the more so, Maharil explains, in a case like the plague, where the Angel of Death is given
permission to do as he pleases, without distinguishing the righteous from the wicked. Maharil
supports this with the source from the Talmud discussed at the opening of our article:

And we expound [in BT Bava Qamma 60a] from the verse, “‘None of you shall go out of the
opening of his house until the morning’ teaches that once power has been given to the destroyer
he does not distinguish between the righteous and the wicked.”

This leads Maharil to conclude the following, before bringing additional sources and justifications:
52
[C] For this reason, it is common to flee.

[D] It is also evident from Sefer Ḥasidim, authored by the Roqe’aḥ, that it is good to flee.

Rabbi Elazar ben Yehudah of Worms (died c. 1230), known as “The Roqe’aḥ” (Perfumer) after
his halakhic work, was one of the most prominent members of Ashkenazic pietistic circles, of
which Sefer Ḥasidim is the most famous. Maharil identified the Roqe’aḥ as the author of Sefer
Ḥasidim.15He supports these sources with further explanations. Maharil elliptically cites two
verses that support the claim that calamity can befall a specific place yet spare another place
nearby. The implication is that by fleeing, it is possible to escape calamity.
[E] There is good reason for this, as sometimes the decree is against one city or one country…16
The next sections of the responsum (which we skip here) address mourning customs in times of
panic and plague, after which Maharil returns to the question of whether fleeing is effective,
presenting two Talmudic passages that advise people to avoid dangerous situations, which can lead
to premature death. The implication is that by fleeing one can indeed evade a terrible fate:

[H] We further say [BT Shabbat 32a et al.]: “A person should not stand in a dangerous place…”
And we further say [BT Berakhot 55a]: “Three things recall a person’s sins: A collapsing wall…”

Next, Maharil presents testimony for the actions of authoritative figures, attesting that he has seen
great sages who fled during plagues:

[I] Further, I have seen great men who went elsewhere.

Finally, Maharil arrives at the problematic Talmudic passage:

[J] Regarding what we say in the chapter “HaKones” [sixth chapter of BT Bava Qamma60b]:
“Gather your feet,”which is derived from many verses,

I heard from our teacher, Rabbi Shalom, may he live, that once [the plague] has begun and has
taken hold, and [the Angel of Death] has been given permission to go out openly, one should gather
his feet.

We likewise say [PT Berakhot 4:4]: “All roads are presumed dangerous.”

However, at the beginning [of the plague], it is good to flee.

Maharil, citing Rabbi Shalom of Wiener-Neustadt (d. 1413), differentiates two stages of plague
within the city. During the first stage, before the plague intensifies, the proper course of action is
flight. The Talmud’s directive, “Gather your feet,” applies later once it has become dangerous to
go out onto the roads. The common practice, therefore, does not contradict the Talmudic
instruction.

We omit here two Talmudic cases cited by Maharil [K],17 in which the Talmudic sage Shmuel
argues that when there are groups frequently traveling from one place to the other there is more
likelihood that the plague will travel along. Finally, Maharil comes to his conclusion:

53
[L] All of this supports that which we said [above, Section B: “The destroyer] does not distinguish
[between the righteous and the wicked.] It is therefore apparent that there is no prohibition [to flee
a plagued city].

It is clear from the responsum that fleeing was common. The questioner, himself a scholar, asked
Maharil how this common practice squares with the belief that no one dies before their time —
which “implies, somewhat, that one should not flee.” The main concern of Maharil’s answer is
that death need not be foreordained, so fleeing is efficacious. In support of this point, he marshals
different kinds of arguments and sources: passages from the Babylonian and Palestinian Talmuds,
verses from Scripture, common practice, the behavior of leading sages, oral traditions from living
rabbis, and Sefer Ḥasidim.

In Section J of the responsum, the baraita that instructs, “gather your feet,” appears. Although this
instruction does not contradict Maharil’s earlier assertion that human beings can act to avoid death,
the directive does contradict the specific action of fleeing plague rather than sheltering in place.
Addressing this issue, Maharil refers to a teaching by Rabbi Shalom Neustadt, Maharil’s teacher
and a leading Ashkenzic sage at the turn of the 15th century. This teaching reconciles the directive
to stay at home with the common practice of fleeing by differentiating between different stages of
the outbreak.

It seems that Rabbi Shalom Neustadt himself was bothered by the exegetical problem of the
disparity between the behavior he witnessed and the Talmudic directive. He resolved the problem
by positing that the baraita in the Talmud and the common practice address different stages of an
outbreak. At an early stage, fleeing is acceptable. The directive about staying inside refers to a
later stage of the plague. Maharil does not explicitly mention whether the practice to flee that he
observed was indeed limited to the early stages of plague. It stands to reason that this was indeed
considered the right moment to do so. For one, a well-known adage about plagues at the time was
“Flee quickly, far away, stay long.”18 Jews may have shared the belief in this piece of common
wisdom to flee quickly. Moreover, Jews faced an added risk of anti-Jewish violence on the roads,
as the next source discussed in this article explicitly mentions.19 This particular danger increased
when the plague evolved, especially if the plague was perceived as having begun among Jews.20
It seems that this is also the reason for introducing the passage from BT Ta’anit (Section K). Once
the plague has taken hold, it can pass from one place to another by means of traveling groups. At
that point, fleeing is no longer efficacious, and so sheltering in place is the proper course of action.

Both these late-medieval sources attest to the phenomenon of fleeing plague and address its
normative dimensions. The first, Sefer Ḥasidim, does not even mention the conflicting Talmudic
dictum, whereas the other, Maharil’s responsum, tangentially addresses the conflict and resolves
it with an oral tradition from his (still-living) master, Rabbi Shalom Neustadt, who alone seems to
have dealt with the exegetical, halakhic conflict primarily. Neither source is a typical prescriptive
halakhic text in the sense that neither one is a systematic, methodical treatment of a specific area
of halakhah. Sefer Ḥasidim deals mainly with practices, and responsa treat particular complex
cases but do not treat halakhic topics in a general manner. In the prevalent halakhic literature, the
question of how to act during plague is not addressed at all. It would enter mainstream halakhic
discourse only in 16th-century Poland.

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4 16th-century Polish Halakhists

Polish halakhists belonged to the Ashkenazic halakhic tradition, which did not accept the medieval
halakhic codes mentioned in Part 2 of this article as ultimately authoritative, and thus had no
consolidated, post-Talmudic corpus by which to examine each Talmudic dictum. Consequently,
the distinctions between different types of knowledge were not too rigid. Even if Ashkenazic
halakhists agreed that the Talmudic directives regarding plague were non-binding, the directives
still indicate that what the Talmud viewed as proper behavior could not be ignored by anyone
presuming to follow the Talmud’s guidance in their lives. Thus, although fleeing from plagues
does not appear in medieval halakhic codes, 16th-century Ashkenazic halakhists address it as a
halakhic problem, because for them, the Talmudic discussion itself was a sufficient reason to take
it seriously.

Precisely because this case had ambiguous legal significance and did not belong to any distinct
genre of text, it serves to highlight some of the trends that comprise the halakhic revolution as a
literary revolution in 16th-century Poland, especially as reflected in the writings of two of its
leading lights: Rabbi Shlomo Luria (Maharshal, d. 1574) and Rema.

4.1 Maharshal (Rabbi Shlomo Luria)

Rabbi Shlomo Luria’s most important halakhic work is Yam shel Shlomo.21 It follows the order
of the Talmud and, after analyzing Talmudic discussions, brings them to a halakhic conclusion. In
the volume on Bava Qamma, he devotes a section (chapter 6 § 26) to the plague passage. The
influence of Rabbi Shalom Neustadt, who differentiated between fleeing early and late, is already
discernible in the heading: “The Law of a Plagued City: Before it takes hold one is obligated to
flee, and once it takes hold, one should gather his feet into his house.” Maharshal begins his
analysis by copying the Talmudic passage, concluding with the dictum, “If there is famine in the
city, scatter your feet.” He then begins his discussion:
Some wish to derive from here that we do not say “scatter your feet” with respect to plague, and
that it is forbidden to flee. It is also forbidden because of danger, for we say, “gather your feet,”
and “one should not walk in the middle of the road,” so how can he flee? Moreover, we say in the
chapter “Zeh Borer” [BT Sanhedrin 29a]: ‘Seven years there was a pestilence, yet no one died
before his time.’ However, I found written in the name of the great halakhists that it is permitted
[to flee].22

At this stage, Maharshal presents a reordered paraphrase of Maharil’s responsum (whose author is
not cited by name) with some minor additions.23 The novelty of Maharshal’s approach is not only
that he rearranged the contents of Maharil’s responsum, but that he reframed it, removing it from
a practical-theological context and embedding it in a direct halakhic-exegetical relationship with
the Talmudic statements. Given his larger project — returning to the text of Talmud and
reexamining its instructions — he could not do what so many of his predecessors had done and
simply ignore this passage. He therefore dismantled, rearranged, and reassembled Maharil’s
responsum in a way that places the text of the Talmud at the center of the discussion of proper
conduct during plague. A reader unfamiliar with Maharil’s responsum would not even recognize
Maharshal’s craftsmanship.

55
A careful reading of the opening lines of the unit discloses the agenda guiding the composition. It
begins with the passage from the Talmud, which contrasts plague (“gather your feet”) and famine
(“scatter your feet”). This seems to imply that fleeing from plague is forbidden. Moreover, even if
the Talmud merely advises against fleeing plague, but does not prohibit it outright, fleeing would
still be a dangerous undertaking to be avoided. Finally, the Talmud states in Sanhedrin that no
one dies before their time — so there is no reason to flee.

Having conceptualized fleeing from plague, Maharshal cited the view and prooftexts — material
that he took from Maharil — of the “great halakhists” who permit fleeing. He resolves the tension
by introducing Rabbi Shalom Neustadt’s temporal distinction, likewise, taken from Maharil. Yet
although all the individual components are taken from Maharil, the result is a wholly different kind
of composition: a textual analysis with the Talmud at the center and all the other sources and
traditions converted into a counterweight, until a distinction ultimately harmonizes the sources and
enables their coexistence.

Admittedly, certain elements of the Maharshal’s reframing are dictated by the nature of the
composition. It is only natural that the discussion in Yam shel Shlomo, a running analysis of the
Talmud, would begin with the Talmudic passage that triggers the discussion. Beyond that,
however, Maharshal could have found other ways to structure the discussion, without highlighting
the contradiction between the Talmudic dictum and the widespread custom, and without stating
from the outset that flight from plague is forbidden according to the plain meaning of the Talmud.
He clearly chose a literary framing that reflects his reassertion of the Talmud and its textual
centrality, even when it comes to passages that had never been considered binding.

Finally, we arrive at Maharshal’s halakhic conclusion: “It is therefore apparent that if plague comes
to the city, one is obligated to flee if he has the wherewithal, unless he has already contracted the
plague and been cured, for, then, everyone says that he has nothing to fear.”24 Astonishingly, his
conclusion ignores the distinction between the time before and after the plague takes hold.
Moreover, unlike Maharil, who wrote, “it is good to flee,” and, “it is therefore apparent that there
is no prohibition,” Maharshal states unequivocally: “One is obligated to flee.”

At first glance, this contradicts the heading for the unit, which repeats the distinction of Rabbi
Shalom Neustadt. This is easily resolved, however: it is presumed that the heading was not
composed by the author himself;25 Yam shel Shlomo was first printed in Prague in 1616, forty
years after Maharshal’s death.

To sum up, Maharshal devoted a unit of his work on Bava Qamma to the directives of the Talmud
for times of plague. In doing so, he established them, for the first time, as Talmudic halakhah that
must be accounted for. Nevertheless, although the contradiction between the Talmudic directives
and common practice provides the context for Maharshal’s discussion, he did not invest much
effort in resolving the contradiction. He contented himself with reorganizing Maharil’s responsum,
without adding anything new. In practice, he did not challenge the accepted custom to flee and did
not even limit flight to the early stages of the outbreak.

4.2 Rema

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Maharshal’s cousin and contemporary, Rema, creatively addresses the problem of fleeing plague
in two halakhic works he composed, taking another step forward from a literary perspective; he
was the first to integrate this directive into the classic halakhic literature — specifically, into the
formative codes of the rabbinic curriculum, Tur and Shulḥan Arukh.26 In Darkhei Moshe,
Rema’s commentary on Tur (Yoreh De’ah 116:5),27 he wrote:

Maharil wrote in responsum §3028 that it is good to flee in times of plague, may it not befall
us, and that one should flee at the beginning, not the end… It is likewise written in Zohar,
Parashat Vayera Elav, that one should flee the city. And even though we say in the Talmud,
“If there is famine in the city, scatter your feet,” it seems to me that fleeing is certainly better,
but if one can go inside and not leave [he need not flee]; if not, he is required to flee. And the
custom of Israel is Torah.

The section of Tur on which Rema is commenting is a compilation of things forbidden because
they are dangerous for one’s health and safety. Rema supplements Tur’s collection of precautions
with prohibitions based on precautions from texts and traditions in his milieu. It is here that he
discusses what to do when plague strikes.

Rema begins by citing Maharil’s responsum as a halakhic source with a straightforward ruling. He
then introduces and draws support from a new source: Zohar,29 which had just been printed for
the first time in 1558. Rema does not provide a specific citation, but presumably he is referring
to Zohar’s comments on the angel’s command to Lot to flee the condemned city of Sodom: “Flee
for your life! Do not look behind you, nor stop anywhere in the plain; flee to the hills, lest you be
swept away” (Genesis 19:17):

Come and see: When judgment prevails in the world, it is said that a person should not be found
in the marketplace, for when judgment prevails, it does not distinguish between the innocent and
the guilty, so he should not look there. It is also said that this is why Noah was placed in an ark,
so he would not examine the world when judgment is being executed. And it is written: “And none
of you shall go out of the opening of his house until the morning” — until judgment is done.
Therefore: “Flee for your life! Do not look behind you….”30

According to Zohar, the reason for avoiding the marketplace — a metonym for any public place
— and the reason for fleeing to a different city is one and the same: it is dangerous to witness a
time of punishment that does not distinguish the guilty from the innocent, for anyone present could
be included in this harsh sentence. Rema uses this source to resolve the exegetical conundrum
presented by the Talmudic directive and to produce a new interpretation: it is not forbidden to flee
the city, but it is dangerous to go out into its streets. The best course of action is to flee the city
completely. The sages’ directive to “gather your feet” applies only to one who can go indoors and
not go out into the street at all. If one is unable to remain indoors, he must flee. Rema thus reaches
the same conclusion as Maharshal, albeit by a different route.

Rema then addresses the conflict between the Talmudic directive to flee and both Maharil
and Zohar, the two sources he cited first. Rema offers his own novel interpretation to resolve the
difficulty, rather than Maharil’s earlier attempt to resolve it by limiting the Talmudic instruction
to a particular stage of the plague. Rema mentions Maharil’s distinction without noting that it was

57
intended as a resolution of the difficulty. Rema was not satisfied with the solution of distinguishing
between two stages of plague, perhaps because this distinction is not made in the text itself and its
logic is not readily apparent. Instead, he offers a more fundamental resolution that solves the
contradiction without positing unstated distinctions and limitations: “Gather your feet” and stay
home, because the street is a place of danger that must be avoided. And if one can avoid the street
by leaving the city completely, it is an even better option.

Rema concludes with a broad statement justifying his ruling: Jewish custom has the status of
Torah. Thus, in this short paragraph, Rema amalgamates four disparate elements — Maharil’s
responsum, the Zoharic passage, his own novel interpretation of the Talmudic statement, and the
principle that “the custom of Israel is Torah” — within a single halakhic discourse, fashioning
them into a cohesive approach.31 The last element, Rema’s appeal to the authority of established
custom as Torah, is formulated as a broad, overarching principle and deployed boldly as Rema’s
“closing argument” in support of his ruling that one must flee plague.

Although Rema frequently appeals to the authority of custom, only rarely does he assert that “the
custom of Israel is Torah”32 (one other place being in Darkhei Moshe, and another in his glosses
to Shulḥan Arukh). Each time the expression appears, it is to bolster a tradition that has no anchor
in any source and lacks halakhic logic.33 The use of such a rare expression in the present case
demands explanation.

Rema’s appeal to custom-as-Torah here can be explained in light of his attitude toward Zoharic
literature. In principle, Rema agrees with the view34 that one should adopt the position
of Zoharonly when it does not conflict with explicit rulings of the Talmud or halakhic codes.35 But
Rema’s definition of “Talmud” in this context is expansive, granting weight to a broad spectrum
of rabbinic literature. Rema also introduces another source of authority: custom. For instance, in
one case where Zohar conflicted with one of these late antique rabbinic works that he defined as
“Talmud,” and the Babylonian Talmud itself took no position, Rema decided against Zohar, and
in favor of the source that agreed with the prevalent custom, writing: “we need not concern
ourselves with the mysteries of Zohar that conflict with it, since the custom has already spread.”36
Thus, Rema indicates that the main reason for his ruling is “since the custom has already spread.”
According to Rema, when assessing the literary evidence to decide between Zohar and a minor
Talmudic tractate, prevailing custom should carry significant normative weight.

In his directives for times of plague, Rema appeals to custom-as-Torah to justify his Zohar-
influenced interpretation of the Talmudic directives to “gather one’s feet.” Even if the plain
meaning of the Talmud were normally given greater normative weight than a strained
interpretation that harmonizes with Zohar, “the custom of Israel is Torah,” and it is inconceivable
that custom would contradict the Talmud.

It is not clear what Rema’s position is regarding the limitation he cites in the name of Maharil to
flee at the beginning, not the end. Rema’s own novel interpretation of the Talmudic passage
renders superfluous the interpretation that Maharil proposed in the name of Rabbi Shalom
Neustadt, but perhaps Rema was citing Maharil as a halakhic opinion, not a Talmudic
interpretation. Thus, it is possible that Rema rejects Maharil’s interpretation but remains bound by
his practical ruling about fleeing at the beginning. Rema’s interpretive freedom was much greater

58
than his freedom to determine practice, so although he did not agree with the basis for the ruling,
he nevertheless determined the law in accordance with that view.37

Rema would go on to incorporate this as law in Mapah, his glosses to Shulḥan Arukh, at the end
of a unit that lists dangers to be avoided. He writes: “They further wrote that one should flee the
city when there is plague in the city, and one should leave the city at the beginning of the plague,
not the end.” Rema thus “filled in” what R. Yosef Karo did not include in Shulḥan Arukh.
Precisely because this subject had not been addressed in earlier halakhic sources, it allows us to
see how Rema reincorporated as halakhah and within the rubric of Shulḥan Arukh what earlier
halakhists had not considered halakhah and never codified. At the same time, the vague nature of
the law was what allowed Rema in Darkhei Moshe to uphold fleeing with the statement, “the
custom of Israel is Torah.”

The halakhah as formulated in the gloss to Shulḥan Arukh is faithful to Maharil’s responsum in
both content and style; Rema does not write that one must flee during plague, but that
one should flee. Nor does Rema repeat the forceful expression that he used in Darkhei Moshe:
“the custom of Israel is Torah.”

Rema ostensibly stepped back from the approach he forged in Darkhei Moshe in that he limited
fleeing to the conditions articulated by Rabbi Shalom Neustadt. This disparity between Rema’s
glosses in Mapah and Darkhei Moshe can be explained as follows: in Mapah, his glosses
to Shulḥan Arukh, Rema is more cautious about offending the honor of his predecessors and
avoids far-reaching innovations, because his objective in the glosses is to establish the accepted
custom. Mapah does not necessarily reflect Rema’s personal view of each halakhah. Rather, it
purports to reflect the view that best represents the Ashkenazic tradition. This contrasts
with Darkhei Moshe, which is a more personal work that incorporates Rema’s novel
interpretation.

Thus, the constraints of literary genre account for the differences between Mapah and Darkhei
Moshe in both style and substance. Mapah is about tabulating majority opinion, forging
compromises, and achieving a consensus that reflects the greatest common denominator of
Ashkenazic practice. In the present case, Rema ignores his own interpretation in Darkhei
Mosheand instead adopts the earlier and more representative ruling of Maharil. Note that the
distinction in Sefer Hasidim between groups, which must not flee, and individuals, who may, is
not mentioned at all by Rema, although it is mentioned in Maharil’s responsum.

5 Jewish Folk Literature in Poland in the 16th Century

Contemporary with Maharshal and Rema was a rabbi named Yeḥiel ben Yedidiah of Lublin,
known as R. Michel Moravchik (a moniker attesting to his Moravian origins). Whatever is known
about his life comes from the four books that he published in Krakow during a brief period of five
years at most, during the last quarter of the 16th century: Minḥah Ḥadashah (1577), an anthology
of interpretations of Tractate Avot of the Mishnah; Peirush Birkat HaMazon (1580), a
commentary on the benediction after meals and traditional hymns sung during festive
meals; Gezeirah MiMedinat Osterreich (1581), a chronicle of the anti-Jewish decrees in Vienna
in 1421–1422; and Seder Berakhot(1582), a halakhic monograph on the laws of benedictions. It

59
is evident from several places in his writings that R. Michel served as a darshan (preacher,
homilist) in various communities. Occasionally, the printed material preserves a trace of the
original oral presentation of his sermons.

Several features distinguish his first work, Minḥah Ḥadashah. Foremost is its exceptionally
frequent use of Zoharic literature, including many complete, exact quotations Despite its
prominence in the anthology, the name Zohar does not appear on the title page alongside the other
commentaries that serve as sources for the work (for Zohar does not include a commentary on
Tractate Avot). But the introduction of the anthology describes that it contains: “Dicta from the
Book of Zohar that are needed for this tractate; Talmud and aggadah; Midrash Rabbah and
[Midrash] Zuta; and Avot de-Rabbi Natan.”

The appearance of Zohar at the beginning of this list, before the rest of rabbinic literature, is not
unwarranted, as its lofty status within this work is obvious. Whereas the Talmud and Midrashim
are mentioned infrequently and synoptically, more than thirty Zohar passages are quoted verbatim
(and over ten more in a collection of passages appended to the book). It seems that Minḥah
Ḥadashah was the first printed work to be directly influenced by the printing of Zohar a few years
earlier.

Yet, in his treatment of the phenomenon of fleeing plague, R. Michel Moravchik does not mention
the Zohar passage cited by Rema in (the as-yet unpublished) Darkhei Moshe. Rather, he resolves
the issue through homiletic moralizing:

Nowadays we flee the city due to disturbance of the air, may God protect us, without realizing that
it was sent providentially from God […] Rather, it seems that the fact that we wander, roam, and
experience displacement subdues our uncircumcised hearts and our stiff necks, such that the
displacement and wandering becomes atonement for all of our sins. One should not be so bold as
to stand before his King when He is angry with him; hide yourself for a while, until the tempest
(za’am) has passed.38 You also find in the Torah: “None of you shall go out of the opening of his
house until the morning.” Once power has been given to the destroyer, he does not distinguish
between the righteous and the wicked.39 […] Therefore, distancing is good, and exile, wandering,
and displacement atone and halt [God’s] anger.40
In contrast to Rema and Maharshal, R. Michel addresses the problem of escaping foreordained fate
and the impossibility of evading an omnipresent God. He explains the common custom with
moralistic, homiletic thinking: he avers that for someone to remain in place when the King is angry
at him expresses impudence, and he explains that going indoors (as recommended by the prooftexts
that are themselves paraphrases of the Bava Qamma passage) is a symbolic act of hiding from
God — and that symbolism is accomplished by fleeing as well. Finally, there is moral logic in
fleeing, because through exile and displacement one can atone for sins by the suffering they cause.
At the end of the passage, he includes the principle that appeared in Maharil’s responsum: the
efficacy of flight from danger is predicated on the assertion that, “Once power has been given to
the destroyer, he does not distinguish between the righteous and the wicked.” Flight is therefore
not a denial of God’s providence.41

This passage from Minḥah Ḥadashah introduces a different audience than the ones with which
we are familiar from halakhic literature. This audience, who had its own intellectual climate, is
sparsely documented, and what little material exists about it can be found in moralistic and
60
homiletic literature that has not garnered much scholarly attention, like the works of R. Michel.
For members of this stratum, the key question is the practical one: when plague comes, what should
we do? Theological questions about providence versus human endeavor and halakhic-exegetical
questions about how to harmonize and assign normative weight to various sources fade into the
background. Working with the same building blocks as halakhic literature — common practice,
Talmudic passages, biblical prooftexts, and late medieval treatments of the issue — R. Michel uses
allegory, symbolic action, and ideas about the redeeming value of suffering to build the moral case
for fleeing from plague. The organizing logic of the Minḥah Ḥadashah passage is the logic of the
homily.

6 Summary and Conclusion

The Talmud prescribes a specific action — “gather your feet” — during times of plague. This
directive was left out of halakhic works until the end of the medieval era. By then, another practice
had emerged during times of plague: fleeing. The only source to discuss the practice of fleeing
prior to the 15th century is Sefer Ḥasidim, a non-halakhic work, which determines that individuals
can successfully flee an epidemic, but traveling groups cannot. The nature of this discussion is
ambiguous: it could either be a consideration of the permissibility of fleeing or of the efficacy of
doing so, and it includes theological, legal, moral, and practical aspects that are not always
differentiated or made explicit.

In the 15th century, the practice appears in an unambiguously halakhic context: a responsum of
Maharil that addresses the permissibility of fleeing from plague. The responsum brings together
disparate sources and a variety of discourses without distinguishing them sharply: textual and oral,
legal and theological, observed practice, custom, and law. The passage from the Talmud reemerges
here, and its conflict with the common practice is registered and resolved by means of a distinction
between various stages of a plague.

In the 16th century, with the stronger distinction between different literary genres that resulted,
among others, from the invention of print, variations in approach are determined by the type of
genre in which the scholar is working. There is less fluidity and co-occurrence of different types
of sources. Even when sources co-occur, they are translated and embedded in the language,
discourse, and mode of reasoning of the genre at hand, be it the intellectual argumentation of a
textual halakhic interpretation of the Talmud, a dense commentary on a legal code, a consensus-
based gloss on a prescriptive code, or the associative moral logic of a homily.

Maharshal, writing an analytical commentary on the Talmud, centers his discussion around the
Talmudic passage and reorganizes the contents of Maharil’s responsum accordingly. Despite
reasserting the centrality of the Talmud as a halakhic text and resolving the conflict between text
and practice by distinguishing different stages of plague, he does not adopt the distinction in his
conclusion, which follows the common practice and asserts that one must flee.

In Darkhei Moshe, Rema’s personal update of Tur’s collection of sources about avoiding danger,
Rema begins with Maharil but soon introduces Zohar, which he uses to suggest his own,
somewhat forced resolution of the conflict between the Talmud and common practice, bolstering
his reading by declaring the normative status of custom.

61
In his gloss to Shulḥan Arukh, a halakhic code with a more universal ambition, Rema leaves out
his own interpretation, the Zohar passage on which it is based, and the direct appeal to the
normative value of custom. What remains is only the temporal distinction between stages of
plague, cited by Maharil in the name of Rabbi Shalom Neustadt.

Finally, we examined yet another genre: the homily. This popular literary form allows for a more
associative combination of halakhah, textual exegesis, and theology, including some of the same
sources used by Rema and Maharshal, within a rhetorical discourse comprised of parables,
symbolism, and wordplay, addressing itself to the practical question of whether fleeing plague is
effective. The fluidity of the homily and the fact that it is unambiguously outside the legal realm
are not coincidental.

In the early 17th century, two Polish commentators on the Talmud addressed how “gather your
feet” is related to the practice of fleeing: Rabbi Avraham Ḥayim Schor (d. 1632), a disciple of
Rema, in Torat Ḥayim 42 and Rabbi Shmuel Eliezer HaLevi Eidels (Maharsha, d. 1631),
in Ḥiddushei Aggadot.43Like their predecessors, they accepted the practice of fleeing plague, but
despite the Talmudic passage that prescribes fleeing in cases of famine and sheltering at home for
plague, they did not consider the possibility that the text contradicts common practice.

R. Schor asks why the Talmud does not say, “If there is plague in the city, scatter your feet,” as it
does for famine, wondering why the Talmud does not say what it certainly means, which is that
fleeing is recommended. According to his answer, the Talmud must have considered it obvious
that fleeing is recommended, and only meant to add that whoever does not wish to flee plague may
instead “gather his feet” and remain at home, an option that is not available during famine, when
only fleeing will do.44

Maharsha’s formulation is particularly striking: he claims that the Talmudic statement cannot be
understood according to what he acknowledges is its most straightforward meaning, namely, that
“gather your feet” excludes the option of fleeing. Rather, he asserts, “It is impossible to understand
it in this manner, for it is certainly good to ‘scatter his feet’ and escape with his life when there is
plague in the city.” He therefore explains that “scatter your feet” must certainly apply only to one
who has neglected to flee the city.

Neither R. Schor nor Maharsha mentions names, but both explain the passage in accordance with
Rema’s explanation in Darkhei Moshe. R. Schor adds as an alternative the distinction between
the beginning of the plague and later points in time, as suggested by Maharil in the 15th century,
repeated by Maharshal in the 16th, and as codified by Rema in the same century in his gloss
on Shulḥan Arukh. Both Torat Ḥayim and Ḥiddushei Aggadot belong to the genre of
commentaries on the Talmud. Neither is a halakhic work; their concern was textual, not practical.
Moreover, it was obvious to these sages that the Talmud meant to say exactly what Rema said,
which accorded exactly with what they did in practice. Rather than solving any halakhic issue,
their sole goal was to make sense of a peculiar passage whose plain meaning was rendered
inconceivable by the developments within the Ashkenazic halakhic literature reviewed in this
article.

It was in the 16th century that heirs to an Ashkenazic tradition who mixed different kinds of
sources, discourses, and authority, without sharply distinguishing between them, reworked and
62
rearticulated this tradition within different genres, each with its own type of reasoning and
argumentation, its own type of authority, and its own system for determining the significance and
relative value of disparate sources. There are basic commonalities in all the 16th-century
Ashkenazic sources we analyzed. Each one respects the practice of fleeing, and each one addresses,
explicitly or implicitly, the traditions inherited from the late medieval era, specifically, Maharil’s
responsum. Yet each has its own modes of discourse and argumentation, its own literary function,
its own way of claiming authority, and its own manner of embedding and reworking the inherited
materials. Along the way, the Ashkenazic tradition gains clarity and definition. By the same token,
however, the interpretive fluidity and fertile ambiguity that characterize earlier Ashkenazic
treatments of the practice of fleeing epidemics — an issue that, at its core, amalgamates law, lore,
theological speculation, and practical considerations — are lost.
1
This article is dedicated to Elchanan Reiner, who taught us so much about the culture of early modern Ashkenazic halakhah, and
sparked this intellectual collaboration.The article has two antecedents: Moshe David Chechik, "Ha-Issur o ha-Ḥovah Livro’aḥ min
ha-Ir be-Sha’at ha-Magefah" ("The Prohibition or the Obligation to Flee the City During an Epidemic"), 60(3) HaMa’ayan (2020),
22 (Hebrew); Tamara Morsel-Eisenberg. "Is it Permitted to Flee the City?" 2020. Tablet Magazine. Retrieved 23 Jun
2020, tabletmag.com/sections/history/articles/coronavirus-16th-century-rabbis.The authors are thankful to Elli Fischer for
masterfully editing the writing of two authors to produce a seamless whole. Moreover, his passion for the topic and grasp of the
material resulted in significant contributions and substantive insights throughout the article. The insightful comments of Judah
Galinsky, Pawel Maciejko, Daniel R. Schwartz, and Shaul Stampfer are much appreciated. The authors are grateful to the Memorial
Foundation for Jewish Culture for providing a grant supporting this article
2
Rema died in Krakow, having lived there his whole life, in May 1572, at approximately fifty years of age. He was a judge on the
local rabbinical court and is considered one of the greatest rabbis in Poland. Mapah, Rema’s glosses on Shulḥan Arukh, resulted
in the acceptance of this code by Ashkenazic Jews. See, Elchanan Reiner, “The Ashkenazi Élite at the Beginning of the Modern
Era: Manuscript Versus Printed Book”, 10 Polin: Studies in Polish Jewry (1997), 85; on Rema, see Asher Siev, Rabbi Moses
Isserles (Ramo) (Yeshiva University Press: New York, 1972) (Hebrew); Asher Siev, “Rema as a Jewish Adjudicator and
Decisionmaker”, 25 Ha-darom (1967), 211 (Hebrew).

3
“Ipush ha-avir” (“stench of the air”) and similar Hebrew terms are equivalent to “miasma.” Miasmatic theory, which attributed
epidemics to airborne particles of decomposing matter, persisted as a functional medical paradigm until well into the modern period,
often alongside theories of contagion. See, for instance, the introduction in: Annemarie Kinzelbach, “Infection, Contagion and
Public Health in Late Medieval and Early Modern German Imperial Towns”, 61(3) Journal of the History of Medicine and Allied
Sciences (2006), 369.

4
Szydłów, Poland, approximately 100 km northeast of Krakow.

5
Rema, Meḥir Yayin (Cremona: Vincenzo Conti, 1559), Introduction. This book is a commentary on the Scroll of Esther that Rema
composed and sent to his father in lieu of the portions of food usually exchanged on Purim, which his displacement rendered
impossible. Asher Siev, in the introduction to his edition of Responsa Rema (Jerusalem: Hemed, 1971), 36–39, cited several
additional attestations to the phenomenon of fleeing plague in 16th-century Europe.

6
The parameters of this study are chronologically limited to sources about fleeing during epidemics written in the 16th century, with
some background on the late Middle Ages and an epilogue glancing ahead to the 17th century. Its geographic focus is the
Ashkenazic sphere. These boundaries serve the purpose of our larger inquiry into the development of Jewish legal literature in the
early modern period. There are no comparable Sephardic sources addressing this issue as a halakhic problem.

7
The term “halakhah” (pl. “halakhot”), generally translated as “Jewish law,” covers a range of discourses, normative modes, and
applicability. See: Chaim Saiman, Halakhah: The Rabbinic Idea of Law (Princeton: Princeton University Press, 2018), 17–73.

8
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The terminology of halakhah and aggadah appears in the earliest rabbinic literature, but the Talmud rarely assigns its contents to
one of these two categories explicitly. For an English summary of the division of the Talmud into halakhic and aggadic components,
and the exclusion of aggadah from halakhic discourse, see: Yair Lorberbaum, In God’s Image: Myth, Theology, and Law in
Classical Judaism (Cambridge: 2015), 62–64.

9
Sefer Ḥasidim is a collection of various compilations of personal practices (not customs) and observances. It is attributed to the
circle of Ashkenazic pietists centered in Regensburg during the 13th century. One of these compilations, which had many later
additions that were not part of the original Sefer Ḥasidim, was printed in Bologna in 1487. The edition generally considered to be
the most reliable is Mekize Nirdamim, printed in 1891–1893 (see next note). Additional versions remain in manuscript. See also,
Ivan G. Marcus, Sefer Hasidim and the Ashkenazic Book in Medieval Europe (Philadelphia: UPenn Press, 2018).

10
Sefer Ḥasidim (Wistinetzki-Freimann (ed.), Frankfurt aM: Mekize Nirdamim, 1891–1893), §372.

11
This theological problem did not concern only Jewish scholars. It was likewise treated by Christian and Muslim thinkers. In Islam,
the directive was generally not to flee the plague, even though many did so in practice. Martin Luther also dealt with this problem,
for instance: Martin Luther, “Whether One May Flee from a Deadly Plague,” in Luther’s Works, Vol. 43, [G. K. Wienke (ed. &
trans.), Philadelphia: Fortress Press, 1968], 115–138.

See also: Joseph P. Byrne, Encyclopedia of the Black Death (ABC-CLIO, 2012): “Flight,” 146–148; “Luther, Martin,” 218–219;
“Islamic Religious Responses,” 188–189. We thank Joel Binder for this reference.

12
On Maharil, see Yedidya Dinari, Hakhme Ashkenaz be-Shilhe Yeme ha-Benayim: Darkhehem, ve-kitvehem ba-Halakhah
(The Sages of Ashkenaz at the End of the Middle Ages: Their Ways and Their Writings in Halakhah) (Jerusalem: Bialik,
1984) (Hebrew); Israel Peles, Introduction to the Books of Maharil (Jerusalem: Machon Yerushalayim, 2016).

13
He is possibly Maharil’s disciple, Rabbi Yehudah Loewe Landau, whose son, Rabbi Ya’aqov, authored the halakhic code Sefer
Ha-Agur.

14
She’elot U-Teshuvot HaRav Ya’aqov Segal — Maharil (Cremona, 1556), §50, 13a.

This responsum is numbered as §50 in nearly all printed editions. In the Machon Yerushalayim edition [Responsa of Rabbi Yaacov
Molin — Maharil (Yitzchok Satz (ed.), Jerusalem: Machon Yerushalayim, 1979), 43], it is numbered §41 and printed as one
responsum with another entry that discusses a related issue.

15
Contemporary scholarship considers the author of Sefer Ḥasidim to be Rabbi Judah the Pious (d. 1317). See Marcus, supra note
8.

16
The continuation of this passage provides the verses from scripture: “[Whoever remains] in this city [shall die by the sword, by
famine, and by pestilence; but] whoever leaves shall at least gain his life” [Jeremiah 21:9]. And it is written: “[I therefore withheld
the rain from you three months before harvesttime:] I would make it rain on one town [and not on another; one field would be
rained upon while another on which it did not rain would wither]” [Amos 4:7]. Subsequently, Maharil explains that the same
principle of localized disaster applies to other types of calamity.

17
The omitted section [K] reads as follows: “In [BT] Tractate Ta’anit [21b]: ‘There is a pestilence in Bei Ḥozai — we decree a fast,
even though it is very far, for there are frequent caravans.’ It further states there: [Rabbi Yehudah] said to Shmuel: There is
pestilence among the swine — we decree a fast for their innards are similar to that of humans.’”

18
See Byrne, supra note 10, “Flight”, 146.

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19
The source in question is Rabbi Shlomo Luria. See infra note 21.2: “Especially after the plague has taken hold, the danger to those
who flee among the gentiles is greater than the danger of the plague, as is well known, due to our abundant sins. However, at the
beginning it is good to flee.”

20
There is some historical evidence that such violence was indeed a real risk, especially when epidemics that started in the Jewish
areas began spreading to other parts.

See, for instance, this letter about Kazimierz, the Jewish area outside Krakow, during the plague of 1588. The writer explains that
the Jews were worried about violence, “…because among Jews [in Kazimierz] there was bad air, and in the town [Krakow proper]
not, therefore no Jews could show themselves in the town or on the field, because hajduks [brigands] were knocking everything
down.” Bernard Weinryb, “A Pekel Briv in Yiddish Fun Yohr 1588”, 2 Historishe Shriftn fun YIVO (1937), 61 (Yiddish).

21
On Maharshal, see Rafeld, Rabbi Shlomo Luria and the Sea of Shlomo, (PhD. Diss., Bar Ilan University, 1991) (Hebrew).

22
Rabbi Shlomo Luria, Sefer Yam Shel Shlomo Al Masekhet Bava Qamma: Peraqim 1–6(Lakewood, NJ: Makhon Mishnat Rabbi
Aharon, 2020), 6:26, 385.

23
There are three such additions:

1. 1.After explaining why “there is good reason to flee,” Maharshal adds: “Nevertheless, if he can save people on
his own or with his money, heaven forfend that he hold himself back and detach himself from public distress.
He will not witness the comfort of Zion.” Here, Maharshal introduces a new variable into the discussion: the
ability to help others.
As evidenced by 16th-century letters from Krakow, the more important and powerful community leaders did indeed flee, but other
community functionaries, such as the notary, stayed in the city to help those left behind. See Weinryb, supra note 19.

1. 2.Maharshal’s paraphrase of Rabbi Shalom Neustadt’s distinction concludes: “We likewise say: ‘All roads are
presumed dangerous.’ Therefore, it is not good to flee.” He then adds: “Especially after the plague has taken
hold, the danger to those who flee among the gentiles is greater than the danger of the plague, as is well known,
due to our abundant sins. However, at the beginning it is good to flee. As to why Rava did not flee, we must
say that perhaps he was unsuccessful.”
2. 3.The third addition concerns the parts of Maharil’s responsum on mourning during times of panic and plague.
24
The phenomenon of immunity was known in the early modern era.

25
Meir Rafeld has shown that the synoptic headings in Yam Shel Shlomo often do not reflect the halakhic contents in the body of
the unit. The clearest demonstration of this is a comment that appears toward the end of Yam Shel Shlomo on Bava Qamma, in
which Maharshal’s son, Yeḥiel, reports that his father had a disciple, Rabbi Avraham of Ostroh, write the synopses, as Maharshal
himself deemed it a waste of his time. See: Meir Rafeld, “Maharshal (R. Shlomo Luria) and the Authority of Abridged Halakhic
Books”, 18–19 Shenaton ha-Mishpat ha-Ivri (1992–1993), 427 (Hebrew).

26
Shulḥan Arukh was authored by Rabbi Yosef Karo (see infra note 32) in his later years, and first printed in Venice in 1565. He
wrote this relatively short work on the basis of his earlier work, Beit Yosef, a revolutionary halakhic code, composed as a
commentary on the 14th-century Sefer Ha-Turim (“Tur”) of Rabbi Ya’aqov ben Asher, who reorganized material from earlier
codes into a practical work. In Shulḥan Arukh, Karo sought to unify all Jewish communities under a single halakhah. It is not
clear whether he intended Shulḥan Arukh as a source for halakhic rulings or as an index to his magnum opus, Beit Yosef. Within
a few years, Shulḥan Arukh became the most basic halakhic work of early modernity, and it continues to hold this status even
today, to the extent that “Shulḥan Arukh” has become synonymous with “halakhah” itself. See Isadore Twersky, “The Shulchan
Arukh: Enduring Code of Jewish Law,” in Judah Goldin (ed.), The Jewish Expression (New Haven: Yale University Press, 1976);
Ḥaim Tchernowitz, The history of the Jewish codes vol. 3 (New York, 1946–1947) (Hebrew).

65
27
Darkhei Moshe was first printed, and only partially, in 1692. Nevertheless, his disciples quote and mention the work, which clearly
circulated within Polish rabbinic circles in the late 16th and 17th centuries.

28
This should be §50, which is where this responsum appears in the Cremona, 1556 edition of Maharil’s Responsa that Rema used,
see supra, note 13.

29
Zohar is a collection of esoteric theological literature composed in Spain in the 13th century and attributed to Rabbi Shimon bar
Yoḥai, a Palestinian sage of the 2nd century. Zohar was first printed in the order of the weekly Torah readings, in two parallel
editions: Mantua 1558 and Cremona 1559. The communities of Ashkenaz and Poland used the Cremona edition. See Yiẓḥak
Yudlow, “On Books, Printing, and Publishers” in Yosef Eliyahu Movshovitz (ed.), The Book vol 2 (Jerusalem: Mossad ha-Rav
Kook, 2008), 558–559 (Hebrew).

30
Zohar, 281 (Cremona edition), 107b (Mantua edition).

31
For background on the status of custom in the Jewish tradition, see the first two volumes of Daniel Sperber, Minhagei
Israel (Jerusalem: Mossad ha-Rav Kook , 1990–1991) (Hebrew); Menachem Elon, Mishpat Ivri vol 1 (Jerusalem: Magnes, 1978),
714–717 (Hebrew).

On the primacy of custom in Ashkenaz, see Dinari, supra note 11, 297–302; Israel Ta-Shma, The Ancient Ashkenazic
Custom (Jerusalem: Magnes, 1992), 16–22 (Hebrew); Israel Ta-Shma, “Halakhah, Custom and Reality in Ashkenaz, 1000-1350”
in Kneset Meḥkarim (Jerusalem: Bialik, 2005), 9–10, 16, and 93–103 (Hebrew); Israel Ta-Shma, “Halakhah Custom and
Tradition in the Jewry of Ashkenaz in the 11th-12th Centuries”, 2 Sidra 2 (1987), 145 (Hebrew); see also Talya
Fishman, Becoming the People of the Talmud (Philadelphia: University of Pennsylvania Press, 2011), 177–178.

32
See Darkhei Moshe, Oraḥ Ḥayim 298:2 (where Rema’s assertion likewise bolsters a practice that aligns with Zohar) and Rema’s
gloss to Shulḥan Arukh, Yoreh De’ah 242:14. The phrase also appears twice in Responsa Rema: §§81 and 132:3. Rema’s source
for the phrase is apparently Rabbi Ya’aqov ibn Ḥabib, as he quotes it in his name (Darkhei Moshe, Yoreh De’ah 65:10). A similar
phrase, “the custom of our fathers is Torah,” is common in medieval Ashkenaz, but it differs in meaning, slightly or significantly,
from the expression “the custom of Israel is Torah,” which first appears in the writings of Sephardic rabbis. See Shmuel
Ashkenazi, Alfa Beta Kadmita de-Shmuel Ze’ira, (Shmuel Avraham Tefilinsky (ed.), Jerusalem: NP, 2000], 210–217. We thank
Prof. Simcha Emanuel for pointing out the difference between these two expressions.

33
In contrast, the expression, “the custom of our fathers is Torah,” which Rema uses several times in his works, is used in the context
of traditions that have no clear source but have some basis, and whose logic can be explained.

34
This is the view of Rabbi Yosef Karo (d. 1575). Rabbi Karo was born in Spain before the expulsion of 1492, and studied in
Constantinople and Adrianople (Edirne) before moving to Safed, where he lived most of his life. He wrote Shulḥan Arukh,
see supra note 23. On Karo, see Mor Altschuler The Life of Maran Yosef Karo (Tel-Aviv: TAU Press, 2016); Meir
Benayahu, Yosef My Chosen One (Jerusalem: Yad ha-Rav Nissim, 1991) (Hebrew); Yekutiel Yehuda Greenwald, The Life of
Rabbi Yosef Karo (New York, 1953) (Hebrew).

35
Eliezer Brodt studied the status of Zohar in Rema’s works and identified thirteen mentions of Zohar in Darkhei Moshe. In six of
those instances, Rema rules explicitly against Zohar. See Eliezer Brodt, “Halachic Commentaries to the Shulchan Aruch on Orach
Chayim from Ashkenaz and Poland in the Seventeenth Century” (Ph.D. dissertation, Ramat Gan: Bar-Ian University, 2015), 166–
167.

36
Darkhei Moshe, Oraḥ Ḥayim 59:2.

37

66
Alternatively, it is possible that Rema rejects Rabbi Shalom Neustadt’s interpretation because it did not reflect the reality he
observed. If people were not differentiating their behavior based on the stage of the plague, Rabbi Shalom Neustadt’s interpretation,
despite being textually coherent, does not resolve the conflict between the Talmudic directives and common practice.

38
Isaiah 26:20. As we saw, the Talmud also uses this verse as a prooftext for its directive to “gather your feet.”

39
Exodus 12:22, as cited in BT Bava Qamma 60a-b, which we saw above.

40
Rabbi Yeḥiel (Michel) Moravchik, Minḥah Ḥadashah (Krakow: Isaac Prostitz, 1577), 59b.

41
The notion of displacement as a form of atonement appears in a work by Rabbi Moshe de Trani (Mabit), one of the best-known
sages of Safed in his generation. The work, Beit Elohim, was published in 1576, the same year that Minḥah Ḥadashah was sent
to print (according to its colophon). Mabit, like his Sephardic predecessors (see supra note 5), addressed the practice of fleeing
plague in context of the broader theological question of preordained fate versus human endeavor, but he introduces a new element,
the expiative value of exile:
Some are absolutely bound by their death sentence, whether they remain in that place or… flee… And some are bound by their
sentence if they remain in that place, but if they flee… fleeing is sufficient; the pain he experiences is considered exile, and he is
saved… [Rabbi Moshe de Trani, Beit Elohim (Venice: Giovanni di Gara, 1576), Sha’ar HaTefilah, chapter 16, 18a].

It is difficult to determine whether R. Michel got the idea of applying the expiative value of exile from Mabit’s explanation for
fleeing the plague. On one hand, the idea that the pain of exile saves from death by plague is not attested in any source earlier
than Beit Elohim, and Minḥah Ḥadashah does make frequent use of Sephardic homiletic works that were then being printed in
Italy. On the other hand, the basic idea of the expiative value of exile was not new or original, so it is possible that two contemporary
thinkers thought of it independently. Moreover, the idea appears, in an incipient form, in Sefer Ḥasidim. Recall that, according
to Sefer Ḥasidim, traveling groups of merchants will not avoid the plague, but individuals can sometimes escape by fleeing.

42
Rabbi Avraham Ḥayim Schor (Lublin: Tzvi Bar Avraham Kalonymous Yaffa, 1624), 27b, s.v. “dever ba’ir”.

43
Rabbi Shmuel Eliezer HaLevi Eidels (Lublin: Tzvi Bar Avraham Kalonymous Yaffa, 1627), 50a, s.v. “sham dever ba’ir”. Note
that the two works were printed by the same printer within three years of one another.

44
R. Schor then offers an alternative explanation that was already taught by Maharil in the name of his teacher: “gather your feet”
refers to when plague has already taken hold, whereas fleeing is the proper course of action only before it takes hold. R. Schor did
not even raise the possibility that the Talmud meant to prohibit fleeing during the plague.

67
68
69
70
 Symbol of reconciliation unveiled in Prague

PRAGUE, March 9 (JTA)15 — A famous windswept landmark in the Czech capital has provided
the backdrop for a symbolic gesture of reconciliation between Catholics and Jews.

“A little part of history was made today,” said the president of the North American Board of
Rabbis, Marc Schneier, as he reflected on a ceremony on Prague’s Charles Bridge attended by 40
rabbis and a contingent of leading Czech Christians.

In what representatives of both faiths described as a historic occasion, a set of plaques explaining
a controversial 300-year-old Hebrew inscription mounted on a statue of Jesus on the Cross was
officially unveiled Wednesday on the bridge.

The inscription “Holy, Holy, Holy Is the Lord of Hosts” — a traditional Jewish prayer taken from
the Book of Isaiah — was placed there by Prague city authorities in 1696 to humiliate Jews for an
alleged blasphemy against the cross committed by a Prague Jew.

Some Prague tour guides and books suggest that it was placed there to mock a Jewish politician
named Elias Backoffen, who refused to bow to the cross. Others say Backoffen had spit at the
cross, cursing Christianity. Still others claim that it was placed there to ridicule local Jews who
had refused to remove their yarmulkas in the cross’ presence.

The inscription has for many years confused — and in many cases, offended — Jewish tourists.

Attempts by local Jewish groups to have the inscription removed, or at least explained, fell on deaf
ears until a delegation from the board of rabbis intervened last March, lobbying Prague Mayor Jan
Kasl for the circumstances of the wording to be explained.

Kasl agreed and, with the blessing of Czech Catholic Church representatives, a dedication
ceremony was arranged.

For symbolic reasons, they chose Ash Wednesday, the first day of Lent in the Christian calendar.

The new plaques state in English, Czech and Hebrew that the Hebrew inscription was added to the
statue “as the result of improper court proceedings against Elias Backoffen.”

It also points out that the addition “was intended to humiliate the Jewish community.”

“This has been designated a day of reconciliation between Christians and Jews,” Schneier told
guests and onlookers on the bridge. “This statue will now become a monument to the horrors of
anti-Semitism.”

15
https://www.jta.org/2000/03/09/lifestyle/symbol-of-reconciliation-unveiled-in-prague
71
A Prague priest, Father Tomas Halik, a keen supporter of interfaith relations, said he was pleased
to see the plaques in place.

“I support anything which brings together people of different cultures and religions,” he said.

Also present was John Shattuck, U.S. ambassador to the Czech Republic, who described the
ceremony as “an important moment in the life and culture” of the Czech Republic.

“Today demonstrates a sensitivity and tolerance across religions,” he added.

Shattock read a statement from Czech-born U.S. Secretary of State Madeleine Albright, who
expressed her disappointment, due to a prior engagement in Bosnia, at not being able to attend.

“The plaque, and the fact that you have gathered together on this historic bridge, symbolize the
growing bonds between the Jewish and Christian communities in Prague and throughout the Czech
Republic and beyond,” her statement read.

For Schneier, the event was history in the making. “This is one of the first events that can be seen
as a tangible response to the call” by the Catholic Church for reconciliation.

“Pope John Paul II is going to make a statement on Sunday about reconciliation, and I would pay
tribute to him for what I believe is a genuine and sincere effort on his part to strengthen relations
between our respective faiths.

“We are living in historic, if not revolutionary times, in terms of Jewish-Catholic relations,” he
said.

In 2010 I wrote this piece following my visit to Prague and the Charles River bridge .

I was so taken aback by the clash of images, of the crucifix and the Kedusha written in gold…

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