Wednesday, April 30, 2014

Beitza 30a - Doing Away With Gezeiros Chazal

Tosafos writes that the gezeira of against clapping and dancing because of שמא יתקן כלי שיר no longer applies since people don't know how to construct instruments. This is also recorded by the Rama. However, it is very difficult to understand how this works in light of the concept that we have on 5a - כל דבר שבמנין צריך מנין אחר להתירו - whenever chazal make a gezeira, even if the compelling reason is no longer applicable, the gezeira remains in effect until it is formally nullified by a greater beis din. We normally assume that when the reason no longer applies, the gezeira remains in tact. Why is this different? Tosafos on 6a discusses two other cases where we disregard the gezeira after the reason no longer applies. The first is the gezeira against burying on yom tov out of fear that if the goyim see us doing that they will force us to work. Tosafos suggests that this no longer applies since we no longer have goyim like that. Even the dissenting opinion of Rabbeinu Tam that it should apply is because the reason does somewhat apply (or because of a zilzul concern). Rabbeinu Tam doesn't attack the suggestion based on the concept of כל דבר שבמנין צריך מנין אחר להתירו. The second issue is restriction against water left uncovered out of fear that a snake will drink from it and leave venom behind. Tosafos suggests that nowadays where snakes are uncommon, there is no concern. Tosafos directly deals with the question of davar she'biminyan and writes - ואין לומר שצריך מנין אחר להתירו, דכיון דזה הטעם משום חששא, ועברה החששא עבר הטעם. Tosafos seems to say that there are different forms of gezeiros. Some forms of gezeiros are made with the reasons being part of the actual gezeira, therefore when the gezeira disappears the gezeira will no longer apply. Others are made with the reason merely compelling the gezeira but not being part of the gezira. Based on this Tosafos, our Tosafos would also be assuming that the gezeira against musical instruments included the concern, therefore when the concern is no longer applicable, the gezeira disappears.
However, this approach is very difficult and arbitrary. How does Tosafos know when the concern motivating the gezeira was incorporated in the gezeira and when it isnt? Tosafos says in Pesachim 50a regarding doing melacha after chatzos on erev pesach that it was originally forbidden because it was when we were bringing korbanos, and even though we no longer bring korbanos, the gezeira remains in tact. Similarly, in Avoda Zara 35a Tosafos writes that even when vegetable rennet is used for cheese so that the concerns aren't applicable, the gezeira against non-jewish made cheese remains in tact because it is a davar shebeminyan. Yet, in Avoda Zara 2a Tosafos writes that the restrictions against doing business within 3 days of their holidays no longer applies because they aren't as connected to their avoda zara and don't display the same level of allegiance to be concerned for אזיל ומודי. Since the reason no longer applies it becomes permissible.
The Pri Chadash (Yoreh Deiah 116:2) struggles with most of these Tosafos and tries to explain when we maintain the gezeira and when we don't. The Pri Chadash explains that any gezeira that was done across the board in the time of chazal, would apply even when the problem disappears. However, any gezeira that was limited to a specific place such as not burying on Yom Tov in a place where they will force you to work, and not drinking from uncovered water where snakes are common, would only apply to when the concern is still real. It still remains difficult to understand how Tosafos knew that the gezeira against clapping and dancing would have been limited to places where they were familiar with constructing instruments. For whatever reason, the Pri Chadash leaves our Tosafos out of his discussion - וצריך עיון.

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