Levels of Ownership

Introduction

Ownership of an item does not have to be complete. Two or more people can own something jointly, with equal or unequal shares in it. The split also does not have to be defined by a percentage. Using the example of a cow, an arrangement can be made whereby one person's owns the cow in respect to its milk (they will receive the milk), another person owns the rights to any offspring born by the cow and a third person owns the meat once the cow can no longer give milk.

There will then be questions as to who has the right to decide how much the cow is milked, how expenses are shared etc. Any legal system needs to have an answer to these questions, as well as any other issues that are owner-dependent according to the system. For example, the Torah imposes a fine on a thief who is testified against in court and found guilty – he must pay double. The owners of the cow will divide the payment between them, but this is more complicated when their shares are not defined by percentages.[1]

Here I would like to discuss a particular case subject to a dispute in the gemara, and some ramifications for Hilchos Shemita.[2]

Leasehold and Freehold

While the laws of Yovel (the Jubilee Year) applied, one who sold land in Eretz Yisrael did so only for a limited period. When Yovel came, the land would return to its original owner. In other words, only the leasehold could be sold and not the freehold. In halacha, the leasehold is known as קניין פירות (lit. ownership of the produce).

The dispute in the gemara is in regard to the laws of bikurim (the first fruits, which must be brought to the Beis Hamikdash). One who brings bikurim usually needs to make the declaration spelled out in the Torah,[3] but as this declaration refers to 'the land which you have given me', it can only be made by the true owner of the land. Reish Lakish therefore maintains that one who buys only the leasehold of the land, including any buyer when the laws of Yovel apply,[4] cannot make this declaration. R' Yochanan disagrees, and the gemara explains that he holds that the leaseholder is considered the true owner (קניין פירות כקניין הגוף דמי).[5]

The halacha follows Reish Lakish, i.e. that only the freeholder is the 'real' owner of the land.[6] While there are other applications to this halacha in the gemara, there are not as many as we might have expected for such a fundamental principle. It would seem that the main ramifications are for bikurim and other land-related mitzvos, and we shall discuss this in relation to Shemita.

Non-Jewish Ownership

Produce of non-Jewish owned land is not subject to the prohibition of Sefichim according to the Rambam, and nowadays this view is the complete halachic consensus. Furthermore, according to the Beis Yosef, none of the laws of Shemita apply to the produce of non-Jewish owned land.[7] As the leaseholder of land is not the halachic owner, these leniencies can only be applied to land where a non-Jew is also the freeholder.

This creates a potential problem for Heter Mechira, whereby Jewish landowners 'sell' their land to non-Jews in order to circumvent the laws of Shemita. For both halachic and practical reasons, there is no desire to sell the land permanently; selling just the leasehold will not achieve anything.

A Temporary Freehold?

One of the solutions suggested to overcome this problem will sound to many like a contradiction in terms. The Rambam (not in relation to Hilchos Shemita) differentiates between selling land for its produce (מכירת גוף לפירותיו) and selling for a limited period (מכירה לזמן). The former has no right to make changes to the land such as building or destroying, whereas the latter may make such changes during his tenure as owner of the land.[8]

The suggestion is that instead of selling the land only in respect to its produce, the entire ownership of the land should be sold for a limited period. In this way, the argument is that the non-Jewish buyer will be the true halachic owner even according to Reish Lakish.

However, this claim is far from straightforward. Firstly, the Ran writes explicitly that any temporary ownership is akin to ownership of the produce alone.[9] He proves this from the same gemara quoted above regarding bikurim, which says that any land sale at the time where the laws of Yovel apply is a sale of the land only in respect to its produce.[10]

It is not even clear that the Rambam is in dispute with the Ran. The Ran certainly agrees that it is possible to have an arrangement where the buyer is allowed to build and destroy, but must return the land at the end of his tenure. Although he classifies this as mere קניין פירות and the Rambam calls it קניין הגוף לזמן קצוב, the Rambam may agree that this level of ownership is also not sufficient to make the declaration when bringing bikurim, or to avoid the prohibition of Sefichim during Shemita.[11]

Fictitious Sales

The truth is that there is a more significant problem, which applies even if we assume that the 'temporary freeholder' is the real owner. Landowners do not want to allow non-Jews to build on their land during Shemita, so it is not practical to implement a genuine sale of the body of the land, even for a limited period. The whole point of Heter Mechira is to ensure that crops can be grown on the 'sold' land, but if the sale is genuine there is no way to achieve this.

The Mishna tells of a case where a father, apparently upset with his son, took a vow not to get any benefit from his son's possessions. The son tried to circumvent this vow by giving a meal as a 'present' to his friend, so that his father could partake from it. The friend then declared that if this meal is really his, it is now consecrated to Heaven (and forbidden for consumption)! When the son backtracked and said that the 'present' was not meant for this purpose, the Chachamim ruled that the gift was fictitious and the father may not eat. They formulated a general rule, that "any gift that the recipient is unable to consecrate is not a gift."[12]

The Rosh points out that a person certainly can make a gift with limitations, resulting in some form of shared ownership. A limitation on the recipient's ability to consecrate the gift is no different, and this would have been valid. The problem with the case of the Mishna is that no such clarification was made at the time of sale, and in reality, the son did not intend to give any meaningful gift at all. If the recipient is given real control over the item in one regard alone, this is sufficient to make it halachically valid.[13]

The implication is that a heavily limited gift (or sale) is sufficient to make the recipient the new halachic owner as far as the laws of vows are concerned, and presumably for other laws as well. Extrapolating to Hilchos Shemita, this would imply that giving the non-Jewish buyer any limited right to the land would be sufficient to prevent any issue of Sefichim.[14]

This corollary to the comments of the Rosh is astonishing to me, as it seems to make the halachic ownership subject to the arbitrary decision of the buyer and seller, irrespective of the breakdown of their financial rights in the object.[15] Furthermore, it would appear to be in contradiction to the gemara regarding the status of the leaseholder. The leaseholder also has ownership of the land in one respect, and according to both views, the halachic 'real' owner is determined objectively.[16]

Limitations and Stipulations

Partly due to the concerns described above, in recent times an alternative to the sale of land for a limited period has been suggested. It is possible to transfer full ownership of an object, on condition that a certain term is fulfilled. The recipient owns the item completely, from the moment that the transaction takes place, provided that the condition be met at a specified later date. If the term is not met, in retrospect we will know that the transaction was not effective.

The gemara says that with a few exceptions due to technicalities, one can even make a gift contingent on the recipient returning the item later (מתנה על מנת להחזיר). As long as the item is indeed returned, it is considered the property of the recipient in the interim. One may utilise this method to give an esrog to one who doesn't have one, allowing him to fulfil the mitzvah provided that he returns it afterwards.[17]

The new form of Heter Mechira works along similar lines. Land is sold to a non-Jew on condition that he will agree to sell it back after Shemita. The claim is that during Shemita, the land will belong to the non-Jew entirely; at the same time, there will be no risk of the seller not getting his land back.

However, this method is not without its problems. One major risk is that if the non-Jew decides not to sell the land back, the original sale will be invalidated and all Shemita-related prohibitions will turn out to have been in full force.[18] Proponents of this solution argue that as long as we find an honest non-Jew who has our interest at heart, this risk can be mitigated.[19]

Perhaps more importantly, this method does nothing to solve the problem of the non-Jew being able to use the land as he chooses during Shemita. As long as he returns the land in the state he received it, he could theoretically sow whatever he wants or rent the land to a third party.

In practice, the non-Jew would not be allowed to exercise such a right. I can only assume that additional conditions or limitations are made to the sale designed to prevent this possibility, but I do not know how these limitations could be valid while preserving the genuineness of the sale. Unfortunately, I have not been able to obtain the text of the contract used.[20]

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[1] In practice, an assessment of the value of the various different shares of the cow will need to be made. It is questionable whether the owner to sell the cow only in respect to the right to these fines – see Bava Metsia 33b-34a and Tosfos there (ד"ה כגון); Ktzos HaChoshen and Nesivos HaMishpat siman 295.

[2] These ramifications were discussed in Chapter 6 of Understanding Halacha - Hilchos Shemita and there is some overlap, but here I elaborate more on the general issue of ownership, using Hilchos Shemita as an example.

[3] Devarim 26

[4] While all the twelve tribes were living in their individual territories.

[5] Gitin 47b-48a

[6] Yevamos 36b

[7] See Chapter 6 of Understanding Halacha - Hilchos Shemita for an in-depth discussion.

[8] Hilchos Mechira 23:6. Both of these are able to sow or plant whichever species they want, and have the right to rent the land to a third party – this right distinguishes them from a renter of land (Ibid. 23:8).

[9] Nedarim 29a

[10] Were there to be an in-between possibility of selling the body of the land for a limited period, the gemara should have applied this rule to Yovel as well. It is possible that the Rambam would counter that although this possibility exists in theory, when the laws of Yovel apply this too is impossible. The Torah says explicitly that under Yovel, a sale of land is essentially a sale of harvests of produce (Vayikra 25:15).

[11] See also Ktzos HaChoshen and Nesivos HaMishpat siman 241.

[12] Nedarim 48a

[13] Bava Basra 8:38 (also quoted in Shulchan Aruch, Choshen Mishpat 241:5). There is some discussion as to how clear an indication is required as to the intentions of the person making the gift, and when we should apply the rule of דברים שבלב אינם דברים (unspoken words do not count). But this is not relevant to our discussion, as we are dealing with cases where the terms of the sale are spelled out explicitly.

[14] In practice, I am under the impression that the non-Jew 'purchasing' under Heter Mechira actually has no rights at all, but I have been unable to verify this fully.

[15] Perhaps this is similar to the possibility of selling a cow only in respect to the right to the fine payable for stealing it, discussed briefly in footnote 1 above.

[16] The Rosh would presumably be forced to make a distinction between a temporary owner, who can never be considered the 'real' owner, and a permanent owner of one of the rights of an object.

[17] Kidushin 6b

[18] It is for this reason that we do not sell Chametz before Pesach on condition that the non-Jew will sell it back – such an arrangement risks transgressing the prohibition of owning Chametz on Pesach.

[19] Although of course there is no guarantee that the non-Jew will stay in good health.

[20] From this article (in Hebrew) it appears that the new method was first implemented in the Shemita of תשס"ח (2007-8), but I have not even been able to verify whether this has continued for the current Shemita year. If anyone has more information, I would be grateful to hear.

Torah will Emanate from Zion

The role of the Jewish People in relation to the other nations of the world is described by the Torah, the rest of Tanach and Chazal in various places. However, as these references tend to be vague or abstract,[1] a variety of different approaches have been taken by leading figures throughout our history. I will analyse the sources and some of these approaches, trying to clarify what our aims should be as well as the practicalities of achieving these aims.

A Receptacle for the World

The choosing of the Jewish People starts with Hashem's first words to Avraham Avinu. After the promises of great nationhood and other blessings, Avraham is told somewhat cryptically:

"... ונברכו בך כל משפחת האדמה."            (בראשית יב, ג)

"All the families of the Earth will be blessed through you."              (Bereishis 12:3)

The mechanism of this transmission of blessing is unclear. It could be a metaphysical transmission, unrelated to any connection between Jews and non-Jews on Earth, or perhaps non-Jews will earn their blessings following Jewish influence on their ways.[2]

Avraham himself took a proactive approach to this. When commanded in the same passage to leave his homeland for Eretz Yisrael, he takes with him "the souls that they had 'made' in Charan,"[3] which Chazal explain as referring to people whom Avraham and Sarah had brought close to Hashem (the first 'kiruv' workers).[4] Although these people seem to have been recruited prior to Hashem's words to Avraham, presumably Avraham was chosen in part because of the work he had already done.

However, it is unclear whether Avraham's project had long-term success. In Avraham's lifetime, we see further references to members of the clan, perhaps most notably the 318 people who assisted in the rescue of Lot (and the kingdom of Sedom) from the conquest of K'darlaomer.[5] Yitzchak also appears to have had a following,[6] although when Yaakov is forced to flee from Esav, all of this is left behind. When Yaakov eventually travels to Egypt, only his family (numbering seventy) comes with him.[7]

What became of these people is therefore somewhat of a mystery.[8] The praise given to Avraham for his actions indicates that the project was a worthy one, which leads me to believe that it also had at least a degree of success. The fact that the people did not ultimately become part of the Jewish nation is wholly consistent with the view unanimously accepted within Judaism – non-Jews can serve Hashem without converting.[9]

Shlomo HaMelech

Avraham Avinu was a significant figure in the world that he lived in, as is indicated by his conversations with various kings in the area. However, he did not have a kingdom and his influence was limited by the relatively small area of land that he occupied. The next figure who explicitly and actively engaged in spreading the influence of the Jewish People to other nations was Shlomo HaMelech, who was not held back by such limitations.

Shlomo was the first person to mention the idea of the Beis HaMikdash being a place that non-Jews could also come to serve Hashem.[10] He also enlisted non-Jewish assistance in its building,[11] promoted other international trade[12] and received warmly those who came to seek his counsel from far and wide.[13]

All of this appears to be viewed in a positive light in Tanach. The criticism comes over Shlomo marrying 1,000 wives, from nations whom we are explicitly commanded not to marry, who subsequently turned Shlomo to idolatry (either actively, as the simple reading of Tanach suggests, or at least by allowing idolatry to take place in Israel).[14]

Marrying these wives was certainly part of Shlomo's wider plan to further international relations, presumably with the aim of spreading the word of Hashem. It is possible that ulterior, lustful motives also were part of it, ultimately leading to Shlomo's downfall. It also seems likely that there was an inherent problem with this part of Shlomo's plan, even if his intentions were pure.

While the details are not clear, the simple message seems to be that spreading the word of Hashem among the non-Jews is an important task, but one that must be done with care. The more ambitious the project, the greater the risks that may be involved.

Another point to take from the episode is that a leader cannot hope for a plan of this nature to be successful without widespread support from the people. The physical and financial toil of Shlomo's project proved to be too much, eventually leading to the split of the kingdom.[15] Whether or not this rebellion could have been avoided had the spiritual decline been mitigated,[16] it is important for all leaders to heed the fact that they are representatives of the people and must act accordingly.

For the Individual

For various reasons that I will not go into, I do not think that today's government has the ability to undertake projects such as that of Shlomo HaMelech. Regular individuals certainly do not have this power, but it may be possible to have an influence on non-Jews on a smaller scale, in a similar manner to Avraham Avinu.

However, the Torah and Chazal warn us clearly to avoid getting too close to non-Jews, out of concern that the influence will be in the opposite direction.[17] The Torah mandates the removal of the idolatrous nations from Eretz Yisrael, the explicit reason being the prevention of intermarriage and learning from their sinful practices.[18] Chazal added the rabbinic prohibitions of eating food cooked by a non-Jew, bread baked by a non-Jew, and more, as a further strengthening of this barrier.[19]

None of this is necessarily at odds with the work of Avraham Avinu, who invited guests into his own home but did not eat out in the homes of others, at least as far as we know.[20] We are only discouraged from socialising with those who do not share our values as equal friends. Nevertheless, this barrier is itself a limitation on the influence we can have, and we can hardly expect that the Avraham Avinu model of 'kiruv' will change the world.[21]

In the Internet Age

I believe that at least one reason why Tanach and Chazal do not give us any clear formula for how we should be a 'light unto nations', is because by nature this will vary considerably based on the time and place. A Jew fleeing from pogroms, or even living during the more peaceful periods of our exile, had his work cut out to live his own life according to the Torah and to care for his family and community.

We are fortunate enough to live in an age where our actions can have an effect on a large number of people, without even leaving home. While the internet and social media hold their own dangers, it is certainly practical to utilise them effectively without getting too close to harmful influences. Success is far from guaranteed, but in my view, for those who are well thought out it is also far from impossible.

This field has only caught my interest in in the last year or so.[22] In this time, I have observed that the Internet stores an unsurprisingly large amount of material promoting atheism, Christianity and Islam to others, but the same is not true for Judaism. There are plenty of websites, blogs (this one included), podcasts, YouTube channels and similar that are 'by Jews and for Jews', but there is very little aimed at spreading the Jewish view to those who are not Jewish.[23] The result is that the Jewish voice is either missing or poorly represented, to the detriment of the truth-seekers who consume this content.

One reason for this is likely the fact that historically Jews have been insular, for good reason. Our reluctance to 'impose' on the rest of the world when it can be avoided is well understood. However, for the reasons discussed above, it is high time for a change of direction.

May we merit to see (and to help bring about) the prophecy of Zecharia:

"וְהָיָה כָּל הַנּוֹתָר מִכָּל הַגּוֹיִם הַבָּאִים עַל יְרוּשָׁלָ‍ִם וְעָלוּ מִדֵּי שָׁנָה בְשָׁנָה לְהִשְׁתַּחֲו‍ֹת לְמֶלֶךְ ה' צְבָאוֹת וְלָחֹג אֶת חַג הַסֻּכּוֹת."

זכריה יד, טז

"The remnant of the nations that will come against Yerushalayim, will ascend each year to prostrate themselves to the King, Hashem Tzeva'os, and to celebrate the festival of Sukkos."

Zecharia 14:16

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[1] I discussed one of the main sources in Yerushalayim and the World, but in that post I focussed on the passive influence of the internal actions of the Jewish People.

[2] See also Rashi and others who avoid this question by translating the term ונברכו בך differently.

[3] Bereishis 12:5

[4] See Rashi ibid, quoting Bereishis Rabbah. However, as Rashi also points out, it is possible to interpret this term in different ways.

[5] Bereishis 14:14

[6] See Bereishis 26:14.

[7] Bereishis 46:8-27

[8] While theories have been put forward, those that I have seen do not come close to being proven.

[9] I deliberately do not discuss the Erev Rav and the Torah's overall approach to converts here, as my purpose is defining our role in relation to those who do not choose to convert. The fact that the Torah does not encourage proselytisation is not relevant to this.

[10] Melachim 1, 8:41-3

[11] Ibid. 5:16-20

[12] Ibid. 10:28-9

[13] Ibid. 10:1-10

[14] Ibid. 11:1-11

[15] Ibid. 12:1-24

[16] It is quite possible that the people would have been happy to support the project had it not involved the financing of a home for the daughter of Pharaoh and her idolatry.

[17] There was also a safety concern – Chazal forbade being secluded with a non-Jew, as the non-Jews were suspected of wanting to murder us (Mishna, Avoda Zara 22a). It is generally assumed that this prohibition no longer applies in countries where law and order is upheld, although in truth this may be dependent on the general question as to whether rabbinical institutions dissipate when the reason is no longer relevant (see Eternal or Obsolete?).

[18] Shemos 24:32-3, Devarim 7:1-6.

[19] Avoda Zara 35b and other places.

[20] He, like us, was not in a position to be able to drive out idolaters from Eretz Yisrael.

[21] Avraham Avinu also seems to have predominantly influenced those who needed him, with the vast majority of the world around him remaining pagan.

[22] Corona has had its effects on all of us.

[23] This is of course partly explained by the demographics (roughly 31% of the world identify as Christian, 25% as Muslim, 16% as secular and just 0.18% as Jewish). However, one would expect someone like myself to be exposed to a disproportionate amount of Jewish material available (algorithms, echo chambers etc.). Furthermore, one would also expect the truth to be represented 'disproportionally,' and it should come as no surprise that I believe Judaism to be the truth.

When Rabbis Make Mistakes (part 2)

Introduction

Part 1 of When Rabbis Make Mistakes was written over two years ago. The post discussed serious mistakes caused by negligence of a rabbi, and the implications for the offender. This post will deal with a completely different aspect of rabbinic mistakes – the question of if and when individuals are halachically bound to follow rulings that turn out to be mistaken.

The main overlap between these posts is the fact that rabbis do make mistakes and that following their rulings blindly does not absolve all personal responsibility (as illustrated in part 1 by the words of R' Zerachia HaLevi, aka the Ba'al Hama'or). However, there certainly are also times when we are bound by rulings that we may not agree with, and here we will try to clarify when this applies.

If they tell you that right is left

Probably the most famous comment of Chazal related to this issue is a derivation from the command "not to veer to the right or the left" from the words of the Sanhedrin.[1] The Sifri, quoted by Rashi, explains that the phrase 'right or left' hints to us that one must listen to the Sanhedrin even if they tell us that right is left or left is right.

However, this is not the complete picture. The Mishna says that an individual who followed a lenient ruling of the Sanhedrin that he knew was erroneous, must bring a sin-offering (where applicable), as he did not genuinely rely on the Sanhedrin.[2] The gemara explains further that as deliberate transgressors do not bring sin-offerings, the Mishna must be discussing a person who knew that the Sanhedrin were wrong but mistakenly believed that he was obligated to follow them even when they were wrong.[3]

The clear premise of the gemara is that the truth is that one who knows that the Sanhedrin are mistaken, must not follow their lenient ruling. The Yerushalmi quotes a Beraisa that derives this principle from the very same verse quoted above, but in an opposite manner to the Sifri - 'right or left' limits the obligation to follow the Sanhedrin to cases where they tell us that 'right is right or left is left.'[4]

A precise reading of the Sifri and the Yerushalmi will show that as far as practical halacha is concerned, there is no contradiction between them. The Sifri explicitly refers to a person to whom it appears that the Sanhedrin's ruling mistakes 'right and left,' whereas the Yerushalmi is discussing the Mishna which deals with a person who knows that Sanhedrin have erred. This reconciliation was already suggested in the sefer Be'er Sheva (R' Yissachar Ber Eilenburg, Eastern Europe 1550-1623) in his commentary on the gemara.[5]

The line between 'knowing' of an error and 'appearing' to a person as an error is not always easy to draw. The human mind can never be 100% sure about anything, and 'knowledge' may really represent over-confidence whereas uncertainty may be a function of a lack of self-assuredness.[6] Part of a person's avoda is introspection in order to ascertain whether one really is, or should be, sure about any convictions.

Due to this difficulty, the Ramban does not accept the distinction between knowledge and 'appearance.' Instead, he writes that although one who thinks/knows that the Sanhedrin have made a mistake must not follow their ruling blindly, he must raise his objection for their consideration. They will discuss with him and potentially retract their position; however, if they are not convinced and decide that he is the mistaken one, he is obligated to follow the rule of the majority and forgo his own beliefs.[7]

Support for the position of the Ramban may be found from the law of the Zaken Mamrei ('rebellious elder', who does not accept the majority rule of the Sanhedrin). The process can start with a dispute in a local beis din, which is subsequently taken to the Sanhedrin for adjudication. A judge who returns home and continues to rule in accordance with his own minority opinion is liable to the death penalty;[8] the same applies if he acts personally in accordance with his own opinion.[9]

The Rambam writes that this applies even if the rebellious ruling is a stringency.[10] The clear implication is that the minority dayan must accept the lenient ruling and act accordingly, with no distinction being made if he 'knows' that the majority are wrong. However, the Chidushei HaRan[11] questions this, as lenient rulings do not obligate a person to action.[12]

Proven Mistakes (Ta'us bidvar Mishna)

The Ramban's solution of discussing any reservations with the Sanhedrin, but accepting their final ruling, is workable under ideal conditions. Even if those responsible for the original ruling are no longer alive, one who disagrees can raise his concerns with the judges of his time, who have the right to overturn earlier rulings based on their own understanding of halacha.[13]

The problem comes when, as in our times, there is no Sanhedrin and no authority to overturn earlier rulings. One who thinks that the Sanhedrin have erred has no-one to turn to, or at least no-one with the authority to uphold the concerns.[14]

There is potentially one exception. Chazal discuss the laws of mistakes made by Jewish courts – in some cases the ruling stands, but the judges may be held personally accountable and charged with paying compensation to the party found guilty in error. However, one category of mistake, called a ta'us bidvar Mishna (lit. error regarding a Mishna), can never stand.[15] This is usually when the mistake can be proven from an explicit, halachically binding text.

This rule also applies when the mistake is proven not from a halachic source, but from secular knowledge. The Mishna tells us of the case of a cow whose uterus was removed. R' Tarfon ruled that this rendered the cow a tereifa and thus ordered it to be fed to dogs; the other sages reversed this ruling based on the testimony of a doctor, that in Egypt it was commonplace to remove uteruses of cows (and this did not cause any fatal injury).[16] The gemara describes R' Tarfon's original ruling as a ta'us bidvar Mishna, and this is one reason why R' Tarfon was exempt from paying compensation.[17]

We have already quoted the explanation of the Ba'al Hama'or, that the exemption from payment is due to the personal responsibility of the one following the ruling. Although the Ramban disagrees with this reasoning, all agree that a ruling based on such a mistake is null and void.[18]

It would therefore make sense to say that as long as there is no longer any dispute regarding the facts, the original ruling may be disregarded without any need for a formal statement from the beis din. This was famously the position of R' Yitzchak Lampronti (1679-1756, Ferrara), who wrote that although the accepted halacha allows the killing of lice on Shabbos because lice 'do not reproduce through a male and a female,' this is now known not to be true and therefore one must be stringent.[19]

While there are many who disagree with R' Lampronti's ruling, this is predominantly based on claims that we should rely on Chazal's understanding of science rather than scientists,[20] or that Chazal themselves did not mean literally that lice do not reproduce.[21] The implication is that were there to have been a clear mistake, all would agree that this could be overturned.

However, R' Moshe Shmuel Glasner (Hungary, 1856 – 1924, Yerushalayim) writes that this is not the case. Affirming that Chazal indeed issued rulings such as permitting the killing of lice on Shabbos based on the imperfect scientific knowledge of their time, he claims that we are nevertheless bound by these rulings.[22] This was also the position of R' Yitzchak Herzog (first Ashkenazi Chief Rabbi of the State of Israel).[23]

Rather disappointingly, neither R' Glasner nor R' Herzog explain how their statements square with the principle of ta'us bidvar Mishna.[24] Presumably, they must hold that even a clear mistake must be confirmed by a halachic authority. Although this appears to be a mere technicality, R' Glasner argues that this is necessary in order to prevent a loss of faith in the entire system.

I would counter that at least in a generation where information is readily accessible to all, this attitude is counter-productive. People know when a clear mistake has been made, and we are better off knowing that the system itself incorporates a method for fixing these mistakes in an efficient manner.

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[1] Devarim 17:11. This command has already been discussed extensively here in How does halacha work? and less directly in several other posts.

[2] Horayos 2a. This Mishna follows the view of R' Yehuda that one who does genuinely rely on the Sanhedrin is exempt from bringing an offering. The halacha does not follow this view, but the principle that R' Yehuda's distinction is based on is undisputed.

[3] Ibid. 2b

[4] Yerushalmi Horayos 1:1

[5] A clear contradiction remains regarding the explanation the verse, as it does not seem reasonable to derive opposite meanings from the same word (even on the level of drash). However, the truth is that no more than one of these derivations is necessary. For example, we can read like the Yerushalmi that the verse only speaks of rulings that do not contradict known reality, and we automatically know that one who is not sure of an error is bound by the ruling. It is also quite possible that neither derivation is the real source for the halacha, as neither is explicit or clearly implied from the verse. Rather, the halacha is derived from logic and the words 'right or left' are a mere asmachta (hint or even a form of mnemonic - see Halachic Exegesis).

[6] See Obligations of the mind where we discussed what level of knowledge is required regarding the beliefs the Torah requires us to hold.

[7] Sefer HaMitzvos, Shoresh 1.

[8] Sanhedrin 86b

[9] Ibid. 88b

[10] Hilchos Mamrim 4:1

[11] Written by an unknown author, not Rabbeinu Nissim of Gerona.

[12] Sanhedrin 86b. He concludes that even the Rambam only spoke in a case where the stringency contains a corresponding leniency, but this is difficult to accept.

[13] See Rambam, Hilchos Mamrim 2:1.

[14] In How does halacha work? we explained that the binding nature of the gemara is based on the same principle that obligates following the Sanhedrin, and that until the consensus attained in relation to the gemara is replicated, we must not deviate from its rulings. This situation, being unable to alter laws dating from thousands of years ago in order to fit the needs of the time, is clearly not an ideal, and one of the reasons why the restoration of the Sanhedrin is so critical (see Ubitul Sanhedreya).

In part 6 of Mehalchim bein Ha'Omdim, R' Michael Avraham raises potential ways of mitigating this problem even without a Sanhedrin. However, were it possible to achieve any kind of consensus regarding these controversial ideas, it would likely also be possible to restore the Sanhedrin and thus render these methods unnecessary.

[15] Sanhedrin 33a and other places.

[16] Bechoros 28b

[17] Sanhedrin 33a. See also Shach, Choshen Mishpat 25:9

[18] Rashi writes אין דינו דין לגמרי (the ruling is completely invalid).

[19] Pachad Yitzchak, volume 10, צידה.

[20] The position of R' Yehuda Bril of Mantua, quoted by R' Lampronti there.

[21] See Michtav Me'Eliyahu, volume 4, page 355 footnote 4.

[22] Introduction to Sefer Dor Revi'i on Chulin.

[23] Shu"t Heichal Yitzchak, Orach Chaim siman 29.

[24] Similarly, R' Lampronti does not cite this principle in his support.