{Kiddushin 24b}ת"ר וכולן עבד יוצא בהן לחירות וצריך גט שחרור דברי ר"ש
ר"מ אומר אינו צריך
ר' אלעזר אומר צריך
ר' טרפון אומר א"צ
ר"ע אומר צריך
המכריעין לפני חכמים אומרים נראין דברי ר"ט בשן ועין שהתורה זכתה לו ודברי ר"ע בשאר אברים הואיל ומדרש חכמים הואוהלכתא כר"ע
דר"ט חבירו הוא וקי"ל הלכה כר"ע מחבירו
ואע"ג דמכריעין לפני חכמים אמרו נראין דברי ר"ט בשן ועין לא סמכינן אהא דלא אמרינן כ"מ ששנים חולקין ואחר מכריע הלכה כדברי המכריע אלא במתני' אבל בברייתא לאThe Sages learnt {in a brayta}: And all of them, a servant goes out for them to freedom. And he requires a deed of manumission. These are the words of Rabbi Shimon. Rabbi Meir says: He does not need it. Rabbi Eleazar says: He does need it. Rabbi Tarfon says: He does not need it. Rabbi Akiva says: He needs it.
These who are machria {/decide amongst opinions -- or quite likely, compromise} before the Sages say: The words of Rabbi Tarfon appear true by tooth and eye, for the Torah {itself} gives it to him. And the words of Rabbi Akiva by the remainder of the limbs, since it is a midrash of the Sages.
And the halacha is like Rabbi Akiva. For Rabbi Tarfon is his colleague, and we establish that the halacha is like Rabbi Akiva over his colleague. And even though those who are machria before the Sages said "the words of Rabbi Tarfon appear true by tooth and eye," we do not rely upon this, for we do not say that any place that two {people} argue and one is machria, the halacha is like the words of the machria, except by a Mishna, but in a brayta, no.דגרסי' בפ' כירה בענין הא דתניא לא ישתטף אדם כל גופו בין בחמין בין בצונן דברי ר' מאיר
ר"ש מתיר
ר' יהודה אומר בחמין אסור בצונן מותר
אמר רבה בר בר חנה אמר ר' יוחנן הלכה כרבי יהודה
אמר ליה רב יוסף לרבב"ח בפירוש שמיע לך או מכללא שמיע לך
מאי כללא דא"ר תנחום א"ר יוחנן א"ר ינאי אמר רבי כ"מ ששנים חולקין ואחר מכריע הלכתא כדברי המכריע חוץ מקולי מטלניות שאע"פ שר' אליעזר מחמיר ורבי יהושע מיקל ור"ע מכריע אין הלכה כדברי המכריע דר"ע גבי ר' אליעזר ור' יהושע תלמיד הוא ועוד הא הדר ביה ר"ע לגבי רבי יהושע
ואמר ליה ואי מכללא מאי
דלמא הני מילי במתני' אבל בברייתא לא
אמר ליה אנא בפירוש שמיע לי:For we learn in perek Kira {Shabbat 39b, here in the Rif}, in the matter of this which they learnt {in a brayta}:A person must not souse his entire body, whether in hot or cold water. These are the words of Rabbi Meir. Rabbi Shimon permits. Rabbi Yehuda says: In hot it is forbidden, while in cold it is permitted.Rabba bar bar Channa cited Rabbi Yochanan: The halacha is like Rabbi Yehuda.
Rav Yosef said to Rabba bar bar Chana: Did you hear this explicitly, or are you deriving this from a principle?
What principle {was he referring to}? For R' Tanchum cited Rabbi Yochanan who cited Rabbi Yannai who cited Rabbi: Any place where two people argue and one is machria, the halacha is like the words of the machria, except for the leniencies related to rags {three square tefachim used for specific purposes, whether they become tamei, as discussed on Shabbat 29a}, where even though Rabbi Eliezer is stringent, Rabbi Yehoshua is lenient, and Rabbi Akiva is machria, the halacha is not like the words of the machria. {switch to Aramaic} For Rabbi Akiva in regard to Rabbi Eliezer and Rabbi Yehoshua is a student, and furthermore, Rabbi Akiva retracted in this in regard to Rabbi Yehoshua.
And he {=Rabba bar bar Channa} said to him: and if it is derived from a principle, what of it?
{The response:} "Perhaps these words were by a Mishna, but by a brayta, no.
He said to him: I heard it explicitly.
It is interesting, this application of the rule by the Rif, which is a klal horaah he extracted from perek Kira. A few notes, though:
1) In that gemara in perek Kira, a lot of information is actually provided by the setama digemara, something we can discover by looking at the transition between the Hebrew and the Aramaic, and other cues.
I would declare that the original discussion between Rav Yosef and Rabba bar bar Chana did not include a discussion of the specific "kelal" involved. Thus, the discussion went:
אמר רבה בר בר חנה אמר ר' יוחנן הלכה כרבי יהודה
אמר ליה רב יוסף לרבב"ח בפירוש שמיע לך או מכללא שמיע לך
אמר ליה אנא בפירוש שמיע לי
Even though Rif has the words
ואמר ליה ואי מכללא מאי
which would suggest that Rabba bar bar Channa uttered those words, in which case Rav Yosef would have had to have replied
דלמא הני מילי במתני' אבל בברייתא לא
in fact, the words ואמר ליה are supplied by Rif to explain the progression of that sugya, but in our text of gemara, the words ואמר ליה are absent. Thus, this explanation of
דלמא הני מילי במתני' אבל בברייתא לא
are not necessarily the words of Rav Yosef, but rather quite possibly the words of the setama, and one should keep this in mind before deciding that this is a limitation on one of the kelalei horaah.
2) Another point is that within the citation of the statement of Rabbi Tanchum, there is a distinction between the words of Rabbi and the setama's explanation. And this is made clear by a sudden shift from Hebrew to Aramaic. Thus,
מאי כללא דא"ר תנחום א"ר יוחנן א"ר ינאי אמר רבי כ"מ ששנים חולקין ואחר מכריע הלכתא כדברי המכריע חוץ מקולי מטלניות שאע"פ שר' אליעזר מחמיר ורבי יהושע מיקל ור"ע מכריע אין הלכה כדברי המכריע
דר"ע גבי ר' אליעזר ור' יהושע תלמיד הוא ועוד הא הדר ביה ר"ע לגבי רבי יהושע
The text in red is the actual statement cited by Rabbi Tanchum, while the text in blue is the explanation. We can tell because the text in red is Hebrew, and thus uses a shin to mean "that," while the text in blue, which is the explanation, is introduced with a daled to mean "that," and has the Aramaic word beih therein.
This distinction is possibly important, since this is then, once again, just a suggested reason for the divergence in this case, within the general class in which it is true, for Mishnayot.
3) Is Rif correct to extract this restriction, that halacha kidivrei hamachria only applies to Mishna and not to brayta? After all, it was quite possibly a suggestion by a setama, rather than a named Amora such as Rav Yosef.
And even if we do lend it full credence, whoever said it used the language of dilma, perhaps. In asking this, Rav Yosef is not entirely discounting it. Rather, he is uncertain, and perhaps it only applies to Mishnayot.
4) Does this restriction, to Mishnayot, make sense? I would say that it depends.
On the one hand, see who authored the original statement. If we follow the chain all the way up, it was Rabbi, that is Rabbi Yehuda HaNasi, who compiled the Mishnayot. If so, we can readily say that he was making a declaration about the corpus he was responsible for, namely Mishna, and what metziut is true for that corpus.
But who is to say that the other compilers of Tannaitic material, Rabbi Chiyya Rabba and Rabbi Hoshaya, that the same general rule holds true.
On the other hand, we can understand Rabbi's rule as an observation of the structure of the Tannaitic literature. If one bothers to give two conflicting opinions and follow it up with a machria, one who compromises, the purpose is to endorse the machria as practical halacha. And if so, such would (or could) also be true for Tannaitic material in a brayta.
Or looking at it from a slightly different perspective, if another Tanna bothered to inspect other Tannaitic opinions, and feels capable of being machria, such that it applies one way in one situation and another in another situation, then perforce the halacha is like him. Perhaps something akin to hilcheta kebatrai. This would then also apply even to braytot.
Perhaps we can call back to mind that the reason for the exception was not made clear by Rabbi. Rather, the setama gave two different suggestions. If this is just the way that Rabbi happened to arrange the Mishnayot, then we do not need to give a reason for an exception to the rule, that in this particular case, Rabbi Akiva is not qualified as a machria, or that he retracted as a machria. But if one needs to give reasons for the exclusion as a machria, then perhaps this is a general rule that indeed should apply even by braytos, for why not?
5) If we ignore this kelal horaah restricting ruling like the machria, then it would perhaps be pashut that we rule like the machria.
But let us say we do decide to apply this exclusion to the general rule. Do we then just apply that the halacha is like Rabbi Akiva over his colleague?
Perhaps, and perhaps not. For example, let me suggest that the machria is also arguing with Rabbi Akiva. And then, while the halacha is like Rabbi Akiva over his colleague, the halacha is not like Rabbi Akiva over his colleagues. Would the machria indeed be considered his colleague, though?
6) Ignoring the machriin, one should point out the following:
ת"ר וכולן עבד יוצא בהן לחירות וצריך גט שחרור דברי ר"ש
ר"מ אומר אינו צריך
ר' אלעזר אומר צריך
ר' טרפון אומר א"צ
ר"ע אומר צריך
Rabbi Tarfon and Rabbi Akiva are clearly contemporaries, and take different positions. And Rabbi Akiva says it is necessary. But Rabbi Eleazar (ben Shamua) was a student of Rabbi Akiva, and agrees with him. And Rabbi Shimon (ben Yochai) was also a student of Rabbi Akiva and agrees with him. But Rabbi Meir was a student of Rabbi Akiva and argues with him.
I am still learning kelalei horaah. But do we say that the halacha is like Rabbi Akiva over his colleague, when it is dispute also within the subsequent Tannaitic generation? It would seem so, but perhaps there is room for discussion. We have to see when this is generally applied.
Note: Obviously not intended halacha lemaaseh. I am only wandering about here.
1) In that gemara in perek Kira, a lot of information is actually provided by the setama digemara, something we can discover by looking at the transition between the Hebrew and the Aramaic, and other cues.
I would declare that the original discussion between Rav Yosef and Rabba bar bar Chana did not include a discussion of the specific "kelal" involved. Thus, the discussion went:
אמר רבה בר בר חנה אמר ר' יוחנן הלכה כרבי יהודה
אמר ליה רב יוסף לרבב"ח בפירוש שמיע לך או מכללא שמיע לך
אמר ליה אנא בפירוש שמיע לי
Even though Rif has the words
ואמר ליה ואי מכללא מאי
which would suggest that Rabba bar bar Channa uttered those words, in which case Rav Yosef would have had to have replied
דלמא הני מילי במתני' אבל בברייתא לא
in fact, the words ואמר ליה are supplied by Rif to explain the progression of that sugya, but in our text of gemara, the words ואמר ליה are absent. Thus, this explanation of
דלמא הני מילי במתני' אבל בברייתא לא
are not necessarily the words of Rav Yosef, but rather quite possibly the words of the setama, and one should keep this in mind before deciding that this is a limitation on one of the kelalei horaah.
2) Another point is that within the citation of the statement of Rabbi Tanchum, there is a distinction between the words of Rabbi and the setama's explanation. And this is made clear by a sudden shift from Hebrew to Aramaic. Thus,
מאי כללא דא"ר תנחום א"ר יוחנן א"ר ינאי אמר רבי כ"מ ששנים חולקין ואחר מכריע הלכתא כדברי המכריע חוץ מקולי מטלניות שאע"פ שר' אליעזר מחמיר ורבי יהושע מיקל ור"ע מכריע אין הלכה כדברי המכריע
דר"ע גבי ר' אליעזר ור' יהושע תלמיד הוא ועוד הא הדר ביה ר"ע לגבי רבי יהושע
The text in red is the actual statement cited by Rabbi Tanchum, while the text in blue is the explanation. We can tell because the text in red is Hebrew, and thus uses a shin to mean "that," while the text in blue, which is the explanation, is introduced with a daled to mean "that," and has the Aramaic word beih therein.
This distinction is possibly important, since this is then, once again, just a suggested reason for the divergence in this case, within the general class in which it is true, for Mishnayot.
3) Is Rif correct to extract this restriction, that halacha kidivrei hamachria only applies to Mishna and not to brayta? After all, it was quite possibly a suggestion by a setama, rather than a named Amora such as Rav Yosef.
And even if we do lend it full credence, whoever said it used the language of dilma, perhaps. In asking this, Rav Yosef is not entirely discounting it. Rather, he is uncertain, and perhaps it only applies to Mishnayot.
4) Does this restriction, to Mishnayot, make sense? I would say that it depends.
On the one hand, see who authored the original statement. If we follow the chain all the way up, it was Rabbi, that is Rabbi Yehuda HaNasi, who compiled the Mishnayot. If so, we can readily say that he was making a declaration about the corpus he was responsible for, namely Mishna, and what metziut is true for that corpus.
But who is to say that the other compilers of Tannaitic material, Rabbi Chiyya Rabba and Rabbi Hoshaya, that the same general rule holds true.
On the other hand, we can understand Rabbi's rule as an observation of the structure of the Tannaitic literature. If one bothers to give two conflicting opinions and follow it up with a machria, one who compromises, the purpose is to endorse the machria as practical halacha. And if so, such would (or could) also be true for Tannaitic material in a brayta.
Or looking at it from a slightly different perspective, if another Tanna bothered to inspect other Tannaitic opinions, and feels capable of being machria, such that it applies one way in one situation and another in another situation, then perforce the halacha is like him. Perhaps something akin to hilcheta kebatrai. This would then also apply even to braytot.
Perhaps we can call back to mind that the reason for the exception was not made clear by Rabbi. Rather, the setama gave two different suggestions. If this is just the way that Rabbi happened to arrange the Mishnayot, then we do not need to give a reason for an exception to the rule, that in this particular case, Rabbi Akiva is not qualified as a machria, or that he retracted as a machria. But if one needs to give reasons for the exclusion as a machria, then perhaps this is a general rule that indeed should apply even by braytos, for why not?
5) If we ignore this kelal horaah restricting ruling like the machria, then it would perhaps be pashut that we rule like the machria.
But let us say we do decide to apply this exclusion to the general rule. Do we then just apply that the halacha is like Rabbi Akiva over his colleague?
Perhaps, and perhaps not. For example, let me suggest that the machria is also arguing with Rabbi Akiva. And then, while the halacha is like Rabbi Akiva over his colleague, the halacha is not like Rabbi Akiva over his colleagues. Would the machria indeed be considered his colleague, though?
6) Ignoring the machriin, one should point out the following:
ת"ר וכולן עבד יוצא בהן לחירות וצריך גט שחרור דברי ר"ש
ר"מ אומר אינו צריך
ר' אלעזר אומר צריך
ר' טרפון אומר א"צ
ר"ע אומר צריך
Rabbi Tarfon and Rabbi Akiva are clearly contemporaries, and take different positions. And Rabbi Akiva says it is necessary. But Rabbi Eleazar (ben Shamua) was a student of Rabbi Akiva, and agrees with him. And Rabbi Shimon (ben Yochai) was also a student of Rabbi Akiva and agrees with him. But Rabbi Meir was a student of Rabbi Akiva and argues with him.
I am still learning kelalei horaah. But do we say that the halacha is like Rabbi Akiva over his colleague, when it is dispute also within the subsequent Tannaitic generation? It would seem so, but perhaps there is room for discussion. We have to see when this is generally applied.
Note: Obviously not intended halacha lemaaseh. I am only wandering about here.
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