Tosafos writes that nowadays since people are not experts in making or fixing instruments, there is no issur to clap or dance.
Why isn't this considered a davar shebiminyan and remain assur even if the reason is no longer applicable?
It seems that Tosafos understands this to be similar to the cases where an issur had a time expiration, so we do not require a minyah acher l'ahtiro (tosafos 5a). This concept is further illustrated in Tosafos 6a where Tosafos claims since there are no longer "chavri", we can bury people on yom tov sheini - it is not davar shebiminyan bec. the reason was not just the cause for the gezeira but was said as part of the gezeira, so when the reason no longer applies, neither does the gezeira. Here too, Tosafos seems to understand that the gezeira wasn't "don't clap" bec. you may come to make an instrument, but rather "don't clap bec. you may come to make an instrument", therefore, when the reason no longer applies it is like a gezeira with an expiration time that does not need a minyan acher l'ahtiro.
However, Rashi who feels that even a gezeira with a time expiration needs a minyan l'hatiro, would certainly require a minyah l'hatiro in a case where the reason is no longer applicable.
See Rema (339:3) who adds that since people are not experts it is "uncommon", so the Rabonon weren't gozer. It seems that the Rema is coming to add, that even if one is an expert in making an instrument, there is no gezeira since most people aren't experts so it is a milsa d'lo shchicha, and there is no gezeira.
8 comments:
see here for a full discussion on this issue.
how does one know when the gezeira had a time limit?
I was going to let you know about Rav Shlomo Zalman's analysis but I see it has been linked to. I am surprised, though, that you didn't mention Rav Moshe's take on this (Orach Chaim II #100)or the Beis Yosef's explicit discussion of the issue (Orach Chaim 339).
The Beis Yosef com[ares it to mayim mrgulim which no longer applies but rav moshe doesn't like the tzu shtel because by the water the nature of the gezeira was to be concerned for even a tiny possibility of sakana. Now we don't even have a tiny possibility so it is mutar. The gezeira against clapping, on the other hand was clearly on the ma'ase and should still be relevant. Rav Moshe argues that maybe this is a gezeira that was not nispasheit b'kal yisrael (even though it was initially, but it wasn't after people stopped knowing how to fix instruments). I don't understand this explanation at all, but it deserves mention.
aryeh,
i agree that r' moshe's explanation of this tosafos is difficult. He means to say that to be mevatel a regular gezeira you need 1. they are albe mevatel it (if they convene), bec. it was not nispshet. 2. a minyan convened to actually be mevatel it. therefore, by this gezeira, since the reason no longer applies, it is like a gezeira which is not nispashet b'kol yisroel, that they are able to be mevatel, if they convened. So, even though they were not mevatel it b'minyan bec. they did not convene, he claims that the fact that we say mutav sheyihyu shog'gin (i.e. people are violating it left and right), is proof that all rabbonim would certainly agree to be mevatel it. so we have an anan sahadi that they would be mevatel it, and that is like a group actually convened to be mevatel it. - but of course it is difficult to accept that an anan sahadi would work as if a minyan actually got together to be mevatel it.
Regarding R' Moshe's assumption in his question to diffrentiate between mayim megulim/chavri and clapping, in that by clapping they were gozer on the act, not on the concern of what it would lead to. I think that the beis yosef understands simply, that although they were gozer on the act, the reason was an inherent part of the gezeira, like i explained. therefore, it is very comparable to say that when the reason no longer applies, the gezeira falls off, since the reason was an inherent part of the gezeira.
This is the peshat in tosafos avoda zara 35a by cheese, and tosafos 57b by stam yaynam. In both these gezeiros, they were not just gozer "don't ..." but rather "don"t... because...". meaning the reason was an inherent part of the gezeira. of course, unless rishonim say that it is a type of gezeira where the reason was included, we have to assume that the reason was not included and would remain assur unless a minyan acher is matir it.
I agree with your peshat - I recall Rav Schachter explaining the same way many times. thanks for the good summary of Rav Moshe
I must thank you all, for a long time i had this topic shver and you are shedding some light.
r Avi,
i was going along the same lines as you, but tell me, how do the rishonim know when the reason is part of the takana?
tradition?
i always thought that when the gemara mentions the reason you cann assume its in the takanah, but i didnt go thru all the sugyos. another pssibility: some places its obvious like the snakes the gemara says that places with no snakes is mutar (i think), also rav moshe is saying a sevara, since it is because of pikuach nefesh then it makes sense that this was the way the takana was made.
also whenever the gemara has exceptions (i think re cheese there are exceptions) then again you see from the sugya that it was made to be linked.
bottom line: you have to find a clue in each sugya as to how the takana was made.
in this tosfos, one rav made a stong diyuk, it seems that even acc to tosfos you may not play an instrument, so maybe tosfos heter is limited to something like clapping which was not in the original minyan...
I just came across a pischei teshuva in even haezer 145:9 who adds some insight to this issue. He explains that anything which chazal were gozer on b'toras vadai, meaning that at the time they were gozer there was no situation in which the gezeira would not apply, then even if later on the reason no longer applies, the gezeira is in full force and needs a minyan achar l'hatiro. But, if the gezeira was to be concerned for a safek like by mayim megulim and also by chavrei, even at the time of the gezeira there were exceptions to the rule, so when the reason no longer applies it is mutar.
This chiluk is really very similar to r' moshe's chiluk, just that r' moshe assumes that musical instruments fall under the category of things that were assur b'toras vadai.
The pischei teshuva could perhaps argue and say that by instruments also, the issur was to be choshesh for making instruments, and in a place where people weren't experts there would never have been a gezeira.
Post a Comment