Avodah Mailing List

Volume 38: Number 52

Sun, 28 Jun 2020

• 1. Re: Arukh haShulchan and Halachic Process (Chana Luntz)
• 2. Re: Arukh haShulchan and Halachic Process (Micha Berger)
• 3. Re: Arukh haShulchan and Halachic Process (Chana Luntz)
• 4. Kiddush Levanah (David Havin)
• 5. Re: avoiding the issue (Akiva Miller)
• 6. Re: avoiding the issue (Rich, Joel)

I wrote:
> A minhag chashuv seems to be a minhag of a particular place, following 
> the rulings of their particular mara d'asra - even if other 
> equivalently weighty talmidei chachamim disagree (including rulings 
> such as milk and chicken in the place of Rabbi Yosi etc).

And RMB replied:

<<Whereas I called this local pesawq idea "not really a minhag", except by
homonym.>>

But if anything your proof text seems to support what I am saying, as you
then say:

<<See the Rosh Pesachaim 4:3
<https://www.sefaria.org/Rosh_on_Pesachim.4.3.1>.
He defines a minhag chashuv as one "shenahagu benei hamaqom al pi TC veTC
nahag imahem".>>

I see this as yet another illustration of someone holding exactly as I am
saying, a minhag chashuv is one that the people of a particular place
following the rulings of the mara d'asra. 

<<That doesn't sound like the description of a pesaq, although I guess that
could be fitted into the meaning if we had to. Why "veTC nahag imahem" for a
pesaq?>>

I think it sounds exactly like a pesaq - and the reason for the " veTC nahag
imahem" is because we know that an individual psak can be tailored for
individual circumstances (shas hadchak and a whole host of other scenarios).
This can be true of community wide psak as well (think of the basic Rabbanut
hechser, so at least the people keep kosher even if the Rav himself would
only ever eat mehadrin). If the TC is at one with the people in his
performance then this demonstrates that this is clearly not a psak based on
individual circumstances or halacha v'ain morin ken or any of these.  The
point being that minhag in the form of minhag chasuv is actually the highest
form of psak.  

That is why it makes sense that the Rema says all over "and the minhag in
our lands" - the point being, that is real minhag, minhag chasuv, what we
would call standard psak.  You might get an individual psak based on your
individual circumstances that is different from this, but actually the
minhag chasuv is the baseline.

I know that isn't how we normally think about it, but it seems to me fairly
clear that this is the way the rishonim thought about it.  And when you see
that the gemoras about changing ones minhag in Pesachim 51a [when Raba bar
bar Chana came from Israel to Bavel he ate certain stomach fat] and Chullin
18b [When Rav Zeira went up from Baval to Israel he ate from meat whose
slaughter was too slanted according to Rav and Shmuel], suddenly make sense.
That is, the basic rule that if you go to live somewhere new and you don't
intend to return, you can change your minhag to the new minhag of the place
you now reside (Chullin 18b), is somewhat bafflingly, unless you understand
this way, expressed in relation to whether a certain type of cut renders the
shechita kosher or treif.    The Rabbonim in Eretz Yisrael poskened that the
shechita was fine, and hence the meat could be eaten, and Rav and Shmuel
poskened that it was not fine, and the meat could not be eaten.  That is
very much a top down psak.  And yet when Rav Zeira moved from Bavel to Eretz
Yisrael, he switched from eating according to the psak of Rav and Shmuel, to
eating according to the psak of the Rabbonim of Eretz Yisrael.  And the
Gemora there questions from the Mishna in Pesachim - doesn't Rav Zeira hold
that if you go from place A to place B, you have to keep the stringencies of
both places, with the answer, not if you move permanently.  

Hence it seems to me that the rishonim, including the Rosh you mention,
would say, following the psak of Rav and Shmuel in Bavel is a minhag
chashuv, and Rav Zeira couldn't do anything else, and then when he switched
locales, following the psak of the Rabbonim of Eretz Yisrael was a minhag
chashuv, and he could do that too.  Ie it is Rabbonim driven, and indeed, it
is the way to work out who to follow where. Because while regarding Tannaim,
we have various rules (for Beis Hillel versus Beis Shammai we have the bas
kol, for Rabbi Akiva versus his contemporaries we have the rules in Eruvin
etc), and regarding some of the Amoraim we have rules (Rav versus Shmuel,
Abaye and Rava).  The more general overarching rule seems to me that where
the various authorities had their own locales, and you lived in them, the
minhag chashuv dominated.

Closer to your minhag garua:
> The minhag [garua] is the one we are discussing here - one that 
> appears in a certain place, or spreads from it and various scholars 
> give it more or less weight.

Again my minhag garua (or just plain minhag) seems to me to match the Rosh,
as  brought by RMB:

<<Whereas the Rosh says a "minhag garua" is one "shenagahu me'atzmam davar
echad".>>

As it is ordinary people driven, not rabbinically driven.

<<Sounds more like a minhag chashuv is being describes as being rabbinically
endorsed and followed, and a minhag garua as just a practice the masses
do.>>

I think it is more than that.  A minhag garua is something that the rabbis
will follow in public, and will not challenge (although it appears that
privately, if they genuinely think the halacha is otherwise, they can
practice as they believe the halacha to be).  In that sense it is
rabbinically endorsed.  The relevant rabbi will not sit on the public bench
on Shabbas, they will not wear slip on sandals, they will not bathe two
brothers together in the locale in which the minhag is [all cases from
Pesachim 50-51]  as opposed to a minhag shtus, where they feel there is some
other important value at stake (such as taking chala from rice which is also
brought there) , or that the minhag is stupid, where they will challenge and
try and change it.

>          For example the Shach in Yoreh Deah hilchot Nedarim siman 214 
> Si'if
> 2 is quite dismissive, saying a minhag garua is just people are 
> behaving this way (with the distinction that a scholar not from the 
> locale does not need to follow such a minhag except publically).

(This is at s"q 7.)

>>And the AhS OC 320:12 cites the same Tosafos Shabbos 92b (d"h ve'im timzeh
lomar anshei) as distinguishing between minhag chashuv and minhag she'eino
chashuv. His case of a minhag she'eino chashuv is whether the fruit is
commonly squeezed in their specific locale. The application changes practice
-- whether or not sechiatah is allowed there, or whether it's shelo
kedarkam.<<

It is an fascinating reference, but I confess I don't think the AhS here is
using the terminology in the same way as the Shach or the Rosh does.  For a
start, the AhS is actually not quoting the same Tosfos. The AhS is quoting
the Tosfos in Shabbas 92b, as you say, but the Shach is quoting the Tosfos
on Pesachim 51a (d"h ei ata rashay).  It is in the latter Tosfos that they
distinguish between a minhag chashuv and a minhag that is not chashuv.   In
the Tosfos the AhS quotes, they don't use the term minhag chosuv and minhag
sheino chashuv - the only thing they say is the use the term ???? ???? ????
?????  "that there the minhag of Arabia was chashuv" and goes on to say
that the custom of Arabia was chashuv because if everybody else in the world
had camels, they would have done like the people of Arabia.  Note that in
this case, Tosfos (and the gemora) are referring to customs of what seem
most likely to be non-Jewish people (the people in Arabia who keep camels).

But I agree, the AhS jumps off this reference in Tosfos in Shabbas 92b,
appears to elide it with the terminology of the Tosfos on Pesachim 51a, and
tries to use this to explain that there is no machlokus between the Beis
Yosef and the Rema, and that both are right. It would be interesting to keep
a watch out and see whether the AhS more generally has a different
definition of minhag chashuv - which seems to include non-Jewish minhagim,
or whether this is a bit of a once off. He needed to discuss what the
general world does in terms of behaviour, and used the term minhag and
chashuv in a more general manner, without meaning it to impact on the
concept of halachic minhag in the way we are discussing.  Perhaps minhag
with a small m, rather than minhag with a capital M.

 
> Note the reference "conducted themselves to do as a fence and a 
> boundary for the Torah" - which I suspect is reflecting the idea that 
> something that has to have a certain kind of Torah look and feel to be 
> a valid minhag, even if it is a minhag garua, to distinguish from a minhag
chashuv.

<<Like whether or not a given fruit is normally squeezed where you live???>>

By non Jews!

<<To me it would seem that:
- halakhah, even a regionally accepted pesaq is one thing (eg BY chalaq);
- a minhag chashuv is what I was calling the technical use of the word
  "minhag" (eg glatt); and
- a minhag garua is something like: whether the local practice is to
  squeeze pomegranates or not -- with, or to eat raw onions or not --
  with the effect of whether to require a ha'adamah or a shehakol if
  you were to eat one.>>

Whereas I don't see the last as being a halachic custom, about which there
could be any question of hetaras nedarim.  If you go from a place whether
the locals do not squeeze pomegranates, to a place where they do, you do not
need hetaras nedarim to squeeze pomegranates during the week.  Even though
you might use the language of minhag.   I don't think you would even need
hetaras nedarim to change your bracha, although it might feel weird.  It is
like saying that if you go from a place where it is physically possible to
construct an eruv, to a place where it is impossible (for whatever reason),
that you have been mevatel the minhag of eruv.  The custom in the local non
Jewish community or the physical layout of the place you have moved to can
at times determine what your practices on shabbas are (or during the week in
terms of brachos).   It is like the reality that surrounds your practice.
And I think the use of the word minhag in this context is merely about
behaviour.

-Micha

Shabbat Shalom

Chana

Beqitzur:

I see Chana Luntz as saying:
    Minhag chashuv = local pesaq
    Minhag garua = common religious practice

I am saying:
    Local pesaq is only called minhag in a non-technical sense of the word
    Minag chashuv = common religious practice, blessed by rabbinic approval
    Minhag garua = any other practice, religious or even a non-religious norm
       that has halachic impact

On Fri, Jun 26, 2020 at 7:01pm BDT, Chana opens by quoting me and arguing
for her definition of minhag chashuv:
>> See the Rosh Pesachaim 4:3
>> <https://www.sefaria.org/Rosh_on_Pesachim.4.3.1>.
>> He defines a minhag chashuv as one "shenahagu benei hamaqom al pi TC veTC
>> nahag imahem".
...
>> That doesn't sound like the description of a pesaq, although I guess that
>> could be fitted into the meaning if we had to. Why "veTC nahag imahem" for a
>> pesaq?
> 
> I think it sounds exactly like a pesaq - and the reason for the " veTC nahag
> imahem" is because we know that an individual psak can be tailored for
> individual circumstances (shas hadchak and a whole host of other scenarios).

Whereas I am hearing the Rosh as talking about a rabbinically endorsed common
practice.

Like the Rama on milchigs on Shavuos.

A problem with your read is that this is a poor way of saying "general pesaq
not just for one situation". After all, a pesaq for kohanim by a non-kohein
could be a general pesaq, or one about some food the poseiq is allergic too.
Why not say "lekhol hatzibbur" or something that actually says what he means
-- and in fewer words.

> I know that isn't how we normally think about it, but it seems to me fairly
> clear that this is the way the rishonim thought about it.  And when you see
> that the gemoras about changing ones minhag in Pesachim 51a [when Raba bar
> bar Chana came from Israel to Bavel he ate certain stomach fat] and Chullin
> 18b [When Rav Zeira went up from Baval to Israel he ate from meat whose
> slaughter was too slanted according to Rav and Shmuel], suddenly make sense.
> That is, the basic rule that if you go to live somewhere new and you don't
> intend to return, you can change your minhag to the new minhag of the place
> you now reside (Chullin 18b), is somewhat bafflingly, unless you understand
> this way, expressed in relation to whether a certain type of cut renders the
> shechita kosher or treif.

Not sure why.

Any different then a story in which Reb Shmuel moves from Hungary to
Lithuania and starts eading non-glatt meat?

Where in either of those gemaros do we see that not eating bow-fat was
an issur gamur (like the way Sepharadim treet non-chalaq) rather than
a commonly practiced hanhagah tovah (glatt)?

The truth is that when a Sepharadi moved to Ashkenaz, before mixed
communities became a norm, he did change actual pesaq. I just don't see
any indication which scnario is being spoken about here.

Nor any mention of the word "minhag" in either, so even it were a change
in pesaq, it wouldn't show whether "minhag chashuv" refers to such things
or not. It's just about "chumerei hamaqom".

Now moving on to minhag garua.
>> The minhag [garua] is the one we are discussing here - one that 
>> appears in a certain place, or spreads from it and various scholars 
>> give it more or less weight.

> Again my minhag garua (or just plain minhag) seems to me to match the Rosh,
> as  brought by RMB:

>> Whereas the Rosh says a "minhag garua" is one "shenagahu me'atzmam davar
>> echad".

> As it is ordinary people driven, not rabbinically driven.

Yes, but the example isn't even halachic. It's just "what people do".

Like in the Shakh YD 214 s"q 7 (on se'eif 2) who you describe as:
>>>   is quite dismissive, saying a minhag garua is just people are 
>>> behaving this way (with the distinction that a scholar not from the 
>>> locale does not need to follow such a minhag except publically).

The SA is speaking about something they are nohagim on thier own as
a geder usiyag laTorah. Not pesaq.

The Shakh opens "mihu hainu davqa beminhag chashuv"!

He outright says this extra-legal practice is what minhag chashuv means.

And then goes to the Tosafos about minhag she'eino chashuv. And that
Tosafos is discussing a case where the minhag in question is whether or
not one normally carries things on their head, because that has implications
for hilkhos Shabbos.

And isn't that how the AhS uses the Tosafos?

>> And the AhS OC 320:12 cites the same Tosafos Shabbos 92b (d"h ve'im timzeh
>> lomar anshei) as distinguishing between minhag chashuv and minhag she'eino
>> chashuv. His case of a minhag she'eino chashuv is whether the fruit is
>> commonly squeezed in their specific locale. The application changes practice
>> -- whether or not sechiatah is allowed there, or whether it's shelo
>> kedarkam.

> It is an fascinating reference, but I confess I don't think the AhS here is
> using the terminology in the same way as the Shach or the Rosh does...

Whereas I am taking him as a ra'ayah for my understanding of the Tosafos,
the Rosh and the Shach!

Why say the AhS has a whole new shitah, when you could instead say that
the other sources should be understood as I explained them?

:-)BBii!
-Micha

-- 
Micha Berger                 The greatest discovery of all time is that
http://www.aishdas.org/asp   a person can change their future
Author: Widen Your Tent      by merely changing their attitude.
- https://amzn.to/2JRxnDF                 - Oprah Winfrey

RMB writes:
<<Beqitzur:

I see Chana Luntz as saying:
    Minhag chashuv = local pesaq
    Minhag garua = common religious practice>>

Not quite.  Minhag chashuv is what arises when a community follows local
psak. It is the putting of that psak into action, not merely as theoretical,
but as the active base of performance.  Minhag garua is when a community
follows a community generated common religious practice that a Talmud
Chacham understands to have validity in terms of being rooted in the Torah
or a fence around prohibited matters and the like.  Or rather I believe that
this is the understanding of the Tosfos and the Rosh (sometimes minhag garua
is called minhag sheino chashuv or just minhag), with the Meiri adding a
third category, that of minhag taus. I believe this is the understanding of
the Shach as well.

<<I am saying:
    Local pesaq is only called minhag in a non-technical sense of the word
    Minag chashuv = common religious practice, blessed by rabbinic approval
    Minhag garua = any other practice, religious or even a non-religious
norm
       that has halachic impact>>

<<Whereas I am hearing the Rosh as talking about a rabbinically endorsed
common practice.>>

Even though the language is "al pi Talmud chacham" - I would argue that when
you do something al pi Talmud Chacham, that means you are doing it in
accordance with the psak of that Talmud Chacham.

<<Like the Rama on milchigs on Shavuos.>>

In that context I believe the Rema is bringing the minhag garua, the minhag
that arose amongst the people, but which is rabbinically supported as having
a root or reason in Torah.  Note that as practical difference is the
question as to whether, if someone Ashkenazi failed to have milchigs on
Shavuos, they would be in breach of the halacha.  If you say it is a minhag
chasuv, then you are obligated to follow it, even privately, if you say it
is a minhag garua, then one is just required not to denigrate it publically,
but privately one does not need to make sure one eats milchigs.

<<A problem with your read is that this is a poor way of saying "general
pesaq not just for one situation". After all, a pesaq for kohanim by a
non-kohein could be a general pesaq, or one about some food the poseiq is
allergic too.
Why not say "lekhol hatzibbur" or something that actually says what he means
-- and in fewer words.>>

Because the key here is local following.  Take for example the classic.
Rabbi Yossi held that there was no issur at all on eating chicken with milk.
That is a psak.  It is a general psak which according to Rabbi Yossi should
apply to you and me and everybody.  His colleagues held differently, that
there was a rabbinic ban on eating chicken with milk.  That is a (different)
psak, and according to them, it should apply to you and me and everybody.
If we are discussing the theory of eating chicken with milk, we would
discuss the one psak versus the other, and say we go according to the
majority.

But .. In the locale in which Rabbi Yossi was the rabbi, the minhag was to
eat chicken and milk together, because Rabbi Yossi was their local Talmud
Chacham, and they acted in accordance with his psak.  In the locale of the
other Tannaim, the populace followed their local rabbonim, and did not eat
chicken with milk.  The minhag for the town of Rabbi Yossi to eat chicken
and milk was a minhag chashuv. It was al pi a Talmud Chacham (Rabbi Yossi).
The minhag chashuv of the other towns was al pi their respective mora d'asa.
Because of the minhag chashuv, the people of the town of Rabbi Yossi did not
have to follow the majority of the rabbis, who prohibited chicken and milk.
So long as Rabbi Yossi was their Rav, they could continue to eat it.  The
same scenario occurred regarding Rabbi Eliezer and cutting down trees to
make the knife to do the bris (all on shabbas), where we are talking about
d'orisas.  And yet in the towns under the guidance of Rabbi Eliezer, this
was all permitted.  This was not the populace analysing the respective
sugyas and deciding, each and every one of them in his town, that Rabbi
Eiezer was right.  It was about following Rabbi Eliezer's psak.  But the way
it is described is that it was the minhag in the town of Rabbi Eliezer that
people cut down trees etc  Because the common people had accepted Rabbi
Eliezer as their Rav, and his psak went, and this was part and parcel of
this. 

This note is exactly the same usage as when we say, the minhag of the
Sephardim is to follow Maran, or the minhag of the Ashkenazim is to follow
the Rema.  We have now separated it from locale, but other than that it is
the same idea.  It is not that the Shulchan Aruch endorsed what the
Sephardim do as a rabbinically endorsed common practice (your language).
The Shulchan Aruch poskens (based on his three pillars, or however he
poskens), and the minhag chashuv of the Sephardim is to follow that psak
(except in a few rare cases, I think Rav Ovadiah has something like three,
where they don't, ie the minhag chashuv of the Sephardim is NOT to follow
the psak of the Shulchan Aruch in those three cases).  

> I know that isn't how we normally think about it, but it seems to me 
> fairly clear that this is the way the rishonim thought about it.  And 
> when you see that the gemoras about changing ones minhag in Pesachim 
> 51a [when Raba bar bar Chana came from Israel to Bavel he ate certain 
> stomach fat] and Chullin 18b [When Rav Zeira went up from Baval to 
> Israel he ate from meat whose slaughter was too slanted according to Rav
and Shmuel], suddenly make sense.
> That is, the basic rule that if you go to live somewhere new and you 
> don't intend to return, you can change your minhag to the new minhag 
> of the place you now reside (Chullin 18b), is somewhat bafflingly, 
> unless you understand this way, expressed in relation to whether a 
> certain type of cut renders the shechita kosher or treif.

<<Not sure why.

Any different then a story in which Reb Shmuel moves from Hungary to
Lithuania and starts eading non-glatt meat?>>

No difference, that is also about a minhag chashuv.

<<Where in either of those gemaros do we see that not eating bow-fat was an
issur gamur (like the way Sepharadim treet non-chalaq) rather than a
commonly practiced hanhagah tovah (glatt)?>>

I think it is pretty clear from the Rav Zeira case on Chullin 18b.  We are
discussing what kind of shechita is kosher, and what is treif.  The mishna
on 18a is discussing where the cut has to be made for it to be kosher, and
Rav and Shmuel qualify the statement of Rabbi Yossi bar Rabbi Yehuda who
says a certain cut is kosher by saying that he is only saying this if the
cut is made in the taba'as hagadola, but if the cut is made in the other
rings of the neck, No (Lo).  That is, Rav and Shmuel are saying that if you
make a cut in the other rings of the neck, then the meat is treif.  And the
text goes on to say (after a bit of toing and froing abut which part of
Rabbi Yossi bar Rabbi Yehuda's psak Rav and Shmuel agree with, and which
bits they don't) - "This is what Rav and Shmuel are saying - the halacha is
like him [ie Rabbi Yossi bar Rabbi Yehuda] b'taba'as hagadola, v'ain halacha
k'moso regarding the remaining rings.

And then the story of Rabbi Zeira immediately follows - saying that when
Rabbi Zeira went from Bavel to Eretz Yisrael, he ate from meat that had a
slanted cut not in accordance with Rav and Shmuel.  Given that Rav and
Shmuel clearly use the word "halacha", I don't see how anybody could
interpret this as merely a hanhaga tova.  And yet the challenge went to
Rabbi Zeira "are you not from the place of Rav and Shmuel"?  and then "Does
not Rav Zeira accept the mishna [from Pesachim] that we impose on him the
chumras of the place he left, and the place he is going to".  And then that
is ultimately explained as legitimate because Rabbi Zeira had left
permanently, and so was allowed to switch away from the halacha ie psak of
Rav and Shmuel, because he had switched locales, now adopting the minhagim
of the place he was now living.

<<The truth is that when a Sepharadi moved to Ashkenaz, before mixed
communities became a norm, he did change actual pesaq. I just don't see any
indication which scnario is being spoken about here.>>

Yes, exactly.

<<Nor any mention of the word "minhag" in either, so even it were a change
in pesaq, it wouldn't show whether "minhag chashuv" refers to such things or
not. It's just about "chumerei hamaqom".>>

Not in the small section of the mishna quoted in Chullin 18b there isn't.
But if you go and read the mishna in Pesachim 50b from which this small
section is drawn, it starts by saying - makom shenahagu [to perform work on
erev Pesach before midday] and the last part that is quoted on Chullin 18b
finishes up - if one goes from a place where they do not do work, to a place
where they do work we impose on him the stringencies of the place from which
he has gone, and the stringencies of the place to which he has arrived.

Note that I agree that, at first read, the mishna in Pesachim does seem to
be talking about classic minhag, (what I am calling minhag garua or minhag
lo chashuv, and which you want to call minhag chasuv).  Communities who had
taken on the practice, as a fence around the Torah, of not working erev
pesach before midday.  And I can understand why one would read it this way,
as there is no suggestion of any psak of a local Rav involved.

But then you get Rav Zeira and the challenge from this mishna.  If you are
right, then why is this a challenge to Rav Zeira?  Rav Zeira is dealing with
a psak of Rav and Shmuel, and surely he has to deal with it on that level.
Whereas the mishna has nothing to do with this, as it is dealing with a
minhag.

That, I think, is what bothered the Meiri.  And the resolution seems to be,
that it is a question of minhag, because where you have a famous talmid
chacham who leads a city, and who prohibits something l'halacha, because
that is what he genuinely holds.  Even though his colleagues do not agree
with him,  they consider what he says to be the minhag of the city that he
leads, and they will not violate what he says in that city, if they visit
(like Rav Avahu in the place of Rabbi Yochanan would not move a candle when
lit, even though he held it was permitted).  

So what does that mean for the mishna in Pesachim.  Well one answer is that
the rule in Pesachim catches both the minhag based on psak, and the minhag
based on what people do (ie not working).  But, then that doesn't work in
terms of the cases that are then brought further on in that gemora in
Pesachim.  Because it becomes clear that while there are valid minhagim in
cities - in many cases a talmid chacham who visits but is not intending to
stay is not required to follow the minhag privately, only publically.  So we
have a contradiction, some minhagim it seems one is required to keep in full
when one visits, until one leaves (the mishna case), and others one can just
do publically (other cases).  And this is where the Ri in the Tosfos steps
in.  He explains that the difference between these two is that one is "al pi
Talmid Chacham" and one is not.  With the mishna (ie the non-work on erev
pesach situation) being al pi talmud chacham, and the other cases being not
al pi Talmud chacham.

Now again, if you were just reading this mishna and gemora, you might well
end up with your assessment.  That the not working erev pesach merely has
rabbinic approval (although al pi Talmud chacham does seem a bit strong),
and the other is just what people do.  But that doesn't quite work either,
because it is not just what people do, it needs some level of rabbinic
endorsement, because there is yet a third case - when the minhag was to take
challa from rice. And on this there was a whole discussion about publically
going and refuting this custom.  Because maybe it needed to be publically
refuted.  And when you contrast the third case with this second, you can see
that the second needs at least some level of rabbinic approval, to stop it
falling into the third case.

And, once you factor the Rav Zeira and similar incidents into the  account,
you end up saying - local psak of a Rabbi has the same rules as custom with
strong rabbinic approval (al pi Talmud chacham), and appears to be treated
the same.  Second type of custom has weak rabbinic approval, as they are
happy to let it stand, and to conform (albeit maybe only publically), and
the third type is just simply wrong, and may even need challenge.

In which case, why not just understand it as amalgamating the two first
cases, that actually when we say "al pi Talmud Chacham" - you mean,
according to the mouth of the Talmud Chacham, ie his psak - and thus
understand that the cases where the people didn't work until midday was
because actually there was some Talmud Chacham in those locales ruling that
way.

<<The SA is speaking about something they are nohagim on thier own as a
geder usiyag laTorah. Not pesaq.>>

That is the second part of that sentence. The Shulchan Aruch starts out by
saying:

???? ????? ??? ????? (?) ??? ????; ?????? ?????? ??? ???? ????? ??? ????
?????? 

The acceptance of the multitude falls on them and on their children, and
even for things that the people did not accept on themselves by agreement. 
And then comes the part you quote:

??? ??????? ?? ????? ????? ??? ????? ?????

but that they are nohagim by themselves as a geder usiyag l'Torah

And then he says ??? ????? ???? ???? ???? ??, ??? ?? ????? ???? ? ???????
????? (?) ??????, ?] ??? ?????? ???? ?????? ??? ????? ???? ?????

"and so those who come from outside the city to live there, behold they are
like the people of the city and are obligated to do their enactments
[takanot].

And it is on this part - ie "and they are obligated to do their takanot"
that:

<<The Shakh opens "mihu hainu davqa beminhag chashuv"!

He outright says this extra-legal practice is what minhag chashuv means.>>

That is, Shach does *not* comment on the piece in the Shulchan Aruch that
they are noheg on their own as a geder u'siyag l'Torah".  Rather, he
comments on the piece about someone coming from elsewhere and having to
accept the takanos of the city.  And in explaining what those takanos are,
he says those takanos that they have to accept are only those that are davka
a minhag chashuv, and then adds the words "al pi Talmud Chacham".

Now, one might have thought the discussion in the Shulchan Aruch was about
yet a third category,  namely  takanos hair, which is something where the
legislature of the city get together and pass legislation, with the halacha
being that one need the tuvei hair to approve this, or a Talmud chacham (bit
like the Queen really having to sign legislation into existence), and if the
Rav of the city didn't like these takanos, in theory he could throw them
out, and they are not binding.  There is quite a lot of literature about
takanos hair, although I think they are mostly post gemora. But the Shach
does not refer to those sections, but to the Rosh and Tosfos 

<<And then goes to the Tosafos about minhag she'eino chashuv. >>

Yes.

<<And that Tosafos is discussing a case where the minhag in question is
whether or not one normally carries things on their head, because that has
implications for hilkhos Shabbos.>>

No. The Shach, as I mentioned last time, does *not* refer to a Tosfos
discussing a case where the minhag in question is whether or not one
normally carries things on their head.  He refers to *this* Tosfos:

?"? ??????? ????"? ??? ???? ?????

And so writes the Tosfos and the  Rosh *in perek makom shenahagu*.  Perek
makom shenahagu is in Pesachim, starting on daf 50a, and the Tosfos he is
referring to is found on 51a d"h "I ata rashay l'hetirin bfinehen" - you are
not allowed to rule as permitted in front of them, which is grappling with
why in other cases in Chullin certain Rabbonim did permit something in front
of the people who were accustomed to treat it as an issur, and then further
what does it mean you are not allowed to rule it as permitted in front of
them, implying that one can go against the minhag privately, as compared
with the mishna which says one has to have the stringencies of the place one
visits, implying even privately. With the resolution being this distinction
being between a minhag chashuv al pi haTalmud Chacham (which one cannot
violate even privately) and a minhag sheino chashuv (which one can violate
privately).  


>> And the AhS OC 320:12 cites the same Tosafos Shabbos 92b (d"h ve'im 
>> timzeh lomar anshei) as distinguishing between minhag chashuv and 
>> minhag she'eino chashuv. His case of a minhag she'eino chashuv is 
>> whether the fruit is commonly squeezed in their specific locale. The 
>> application changes practice
>> -- whether or not sechiatah is allowed there, or whether it's shelo 
>> kedarkam.

> It is an fascinating reference, but I confess I don't think the AhS 
> here is using the terminology in the same way as the Shach or the Rosh
does...

> It is an fascinating reference, but I confess I don't think the AhS 
> here is using the terminology in the same way as the Shach or the Rosh
does...

<<Whereas I am taking him as a ra'ayah for my understanding of the Tosafos,
the Rosh and the Shach!

Why say the AhS has a whole new shitah, when you could instead say that the
other sources should be understood as I explained them?>>

a) Because he is quoting a different Tosfos. 

???? ????' ??????? [?"?: ?"? ???"?]

Ba'alei Tosfos in [perek] Hamatznea d"h v'im timza lomar  [which is in
gemora Shabbas 92b)  which is NOT the same Tosfos quoted by the Shach.

b) Because the Tosfos that the Aruch HaShulchan quotes does not in fact,
despite what is stated above, use the language of minhag sheino chashuv (yes
the Aruch HaShulchan does, but the Tosfos does not).  The closest that
Tosfos comes, is that it uses the term ???? ???? ???? ?????  - d'hatam
chasuv minhag aruvia - that there the custom of the Arabians is chasuv.  The
Tosfos was trying to distinguish between the minhag of the people of Arabia
(who had lots of camels), and hence who planted thorns in their fields to
feed the camels, and about whom we do not say batla datam etzel kol adam,
and the people of Hurtzel who carried loads on their head, about whom who do
say batla datam etzel kol adam.  What's the distinction?  The distinction
being that anybody who had lots of camels would do as the people of Arabia
do, whereas the people of Hurtzel are a minority of people, and the fact
that they carry things on their head is considered nullified in the da'as of
the majority of the world.

That is what the Tosfos is discussing, and it does not relate either to the
Tosfos that the Shach is discussing, nor is it in fact a proof text for what
the AhS wants to justify.  The AhS is using this Tosfos to demonstrate that
there are non-Jewish customs in certain places that have a wider impact on
the world in general, and there are other non-Jewish customs in certain
places that are considered as local (that does not even seem to be what the
gemora or the Tosfos says here, because it states flatly that the people of
Hurtzel's actions are  nullified in the da'as of kol adam, but the AhS seems
to think you can learn out from this that locally you should follow that
custom).  It is a bit stretch from the Tosfos as it stands, and he is using
terminology not used by Tosfos in this context, and which does not fit with
the Tosfos where they do use this terminology.  And:

c) it doesn't help you either, because as you say at the beginning:

  <<  Minag chashuv = common religious practice, blessed by rabbinic
approval
    Minhag garua = any other practice, religious or even a non-religious
norm
       that has halachic impact>>

Whereas *both* the customs of the people of Arabia with lots of camels, and
the customs of the people of Hurtzel would fall into *your* definition of
Minhag garua (so your definition of minhag garua and minhag chasuv does not
in fact match the Aruch HaShulchan either).  What the people of Arabia do is
not something that has rabbinic approval, it is just a matter of fact that
if you have a lot of camels, you are going to want to plant thorns in your
vineyard to help feed those camels, and you won't (like the majority of
people worldwide without camels) regard those thorns as a darn nuisance and
something you really don't want in your vineyard (with the halachic
consequences similar to a dvar sheino miskaven,and  shelo niche lei).  But
the AhS uses the terminology of minhag chasuv for that planting of thorns by
the camel owning people of Arabia.


-Micha

Shavuah Tov

Chana

For the first time I recited it tonight by myself, omitting shalom aleichem. Has anyone seen this discussed by poskim in the last few months?
David Havin

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.
R' Micha Berger wrote:

> This strategy was always with us. Like what to do when bentching
> after "shaleshudis" when Rosh Chodesh already started. More
> common in hilkhos berakhos than anywhere else, I think.
> ...
> But in general, there is an increasing reluctance to pasqen in
> some circles. Whether Brisker chumeros or the MB's advice to
> either play safe in some places or avoid the question in another.
> So, we're seeing more and more of it.

I spent a couple of minutes trying to think of examples of this phenomenon,
and I ended up agreeing that this *seems* to be more common in hilchos
brachos. But I think that's only because brachos shailos tend to be
different than other kinds of shailos.

In hilchos brachos, the question is usually whether to say this bracha or
that bracha. R' Joel Rich's example (in the original post) was what to say
on a granola bar, and RMB's example (above) was which paragraph(s) to add
to bentching. This sort of shaila is most easily avoided by simply avoiding
the situation, and one who does so is not necessarily being "machmir". He's
not choosing the more machmir view, and he's not even choshesh for the
machmir view, because neither view is necessarily more machmir than the
other - it's just a question of choosing this view or that view.

However, in most other areas of halacha, it's not a choice of this or that.
It's a question of issur and heter. (Or of chiyuv and not.) In such cases,
"avoiding the situation" tends to be synonymous with "being machmir". Two
simple examples: (1) There's a machlokes about whether a certain action is
allowed on Shabbos. The only way to avoid the shaila is to avoid that
action, but isn't that the same thing as being choshesh for the machmir
view? (2) Ditto for questions about zmanim - regardless of whether we're
talking about the latest time to say Shma, or the earliest time to end
Shabbos, or the deadline to pay one's employees. In all these cases, one
cannot simply "avoid the shaila" by boycotting granola bars or by ending
shaleshudis before sunset; the only way to "avoid the shaila" is by
adopting the machmir view in practice, even if he remains on the fence in
theory.

Akiva Miller
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; the only way to "avoid the shaila" is by adopting the machmir view in practice, even if he remains on the fence in theory.
-------------------------------------------------------
Of course we still need to define which views we include in the
calculation(that is does every opinion ever opined need to be considered
[seemingly not], if not, what is the cut off?)
KT
Joel Rich
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