Monday, July 30, 2007

Eating Potatoes From The Chulent During The Nine Days

(Important note: This post is not intended to be halacha lemaaseh. Furthermore, the development of the halacha has been in stages, so I might state something as halacha at an earlier stage which is subsequently forbidden, at a later stage.)
(Three sections follow: Eating Potatoes, Chulent and Kugel on Erev Shabbos, and The Nine Days and Lent.)

Eating Potatoes From The Chulent During The Nine Days.
That was the question I was pondering. Deep, I know. Can you take a potato from the Shabbos leftovers and eat it during the nine days? We have an ambidextrous dilemma -- on the one hand, it is (purportedly) fleishigs. On the other hand, it is not meat, and meat is what was forbidden.

Right at the outset, I will lay out two conclusions. First, is should not be forbidden. Second, as a matter of actual practice, alas, it is.

In a previous post, I discussed the temporal extension of the practice of not eating meat and drinking wine -- from a prohibition that the gemara took pains to limit to the seuda hamafsekes on erev Tisha beAv, but only if from the sixth hour of the day and on -- to other times, such as the week of, the beginning of the month of, or the entire three weeks. Read there.

This post is dedicated to a different issue -- rather than a temporal extension, a material extension to what types of food were prohibited.

The gemara, brought down lehalacha by the Rif, limits the prohibition of wine and meat.
{Taanit 30a}
ולא יאכל בשר ולא ישתה יין:
תניא אבל אוכל הוא בשר מליח ושותה יין מגתו

בשר מליח עד כמה
אמר רב חיננא בר כהנא אמר שמואל כ"ז שהוא כשלמים יין מגתו עד כמה כל זמן שהוא תוסס
דתניא יין תוסס אין בו משום גלוי
וכמה תסיסתו ג' ימים
"Nor may he eat meat nor drink wine":
They learnt {in a brayta}: But he may eat salted meat and drink wine from his vat.

Salted meat, until what? Rav Chanina bar Kahana cited Shmuel: So long as it is like the Shelamim {salted for three days, as long as the Shelamim may be eaten}.
Wine from his vat, until when? As long as it is fermenting, for they learnt {in a brayta}, fermenting wine does not have an issue of being left standing uncovered, and how much is its period of fermentation? Three days.
It is quite possible that grape juice, not having fermented, does not have this status here. But that will also hook into issues of using grape juice for the simcha during the Pesach seder. (And practically the forbade win from the vat as well for the seuda hamafsekes, so it is to no avail anyway.) Perhaps it is best to leave the definition of wine alone for now and focus on meat.

Salted meat is expressly allowed. This is meat that has been salt-cured for three days. Some examples of salt-cured meat, to the best of my knowledge: corned beef is salt cured; pastrami is corned beef that has also been smoked.

Interestingly, the halacha is also that when a son steals money from his parents and uses it to buy and gorge himself on meat and wine, he is a ben Sorer uMoreh, if the meat is such salted meat, he is not declared a ben Sorer uMoreh. Perhaps because it is not meat, or at least not the meat that is associated with extreme simcha, such that he is not excessively partying with ill-gotten gains.

What about chicken, or other fowl? Well, it actually has the same rule in terms of ben Sorer uMoreh (as per Rava), so perhaps we can extrapolate from there. After all, the general idea here is avoiding extreme simcha, joy. And you cannot fulfill joy with salted meat or with fowl, but only a chagiga will work. I would point out, on the other hand, the Mishna just said basar, meat, and we have one exclusion here. And in terms of chullin and elsewhere, meat is quite often inclusive of besar of, the flesh of fowl.

Shiltei haGiborim cites those reasons to exclude fowl from the prohibition, in the name of the רבינו שב"ט. Conversely, he suggests the issue is not only avoiding extreme joy but also eschewing the lessening of the mourning (and rather increasing it), such as not to forget the anguish of the destruction of the Temple. Therefore he suggests that fowl should be prohibited as well. (And so does Tur.)

(Note that I am omitting other analyses of salted meat and fowl -- that one reason for the salted meat is that is has lost some of its good meat taste, a reason not present for fowl.)

He also cited the Smak -- Sefer Mitzvot Ketanot (Rav Yitzchak of Corbeille, a 13th century Tosafist) that since most of their meat was meat salted for more than two days (thus, three days), one should forbid also that. And Tosafot on the daf (Taanit 30a) suggests the same. Specifically, Tosafot states:

"And even though the Shas says that salted meat is permitted so long as it is not like the Shelamim {peace-offering } that is to say, that more than two days passed from its slaughter -- even so, for us, it is forbidden to eat meat even if it was salted from a long time, since we are accustomed {regilim} to eat salted meat. And so too he needs to reduce his drinking, that if he was used to {ragil} drink ten cups of beer or another drink, he should only drink five. And he needs to change his place where he is used {ragil} to eat, just as was the practice of Rabbi Yehuda beRabbi Illai, who sat and ate on erev Tisha beAv between the oven and the double-stove, an unattractive place."

This, I think, sheds light on what the Smak is saying as well. Since most of their meat was salted meat, this is the normal practice to eat such meat, and if one is reducing from one's usual practice during the seuda hamafsekes, he should reduce here as well.

This practice of Rabbi Yehuda beRabbi Illai, by the way, follows in our gemara, and is recorded lehalacha by the Rif:
אמר רב יהודה אמר רב כך היה מנהגו של ר' יהודה בר' אלעאי ערב ט' באב מביאין לו פת חריבה במלח ושורה אותה במים ויושב בין תנור וכירים ואוכלה ושותה אחריה קיתון של מים ודומה כמי שמתו מוטל לפניו:
Rav Yehuda cited Rav: Such was the custom of Rabbi Yehuda beRabbi Illai: on erev 9th of Av, they would bring him dry bread with salt, and he would immerse it in water, and sit between the oven and stove and eat it, and he would drink afterwards a jug of water, and his manner was like one whose dead relative lay before him.
The part about changing accustomed practice is also a gemara cited lehalacha by the Rif:
תניא כלישנא קמא ותניא כלישנא בתרא
כלישנא בתרא הסועד ערב ת"ב אם עתיד לסעוד סעודה אחרת מותר לסעוד בשר ולשתות יין ואם לאו אסור
תניא כלישנא קמא ערב ת"ב לא יאכל אדם שני תבשילין ולא יאכל בשר ולא ישתה יין רבן שמעון בן גמליאל אומר ישנה א"ר יהודה כיצד משנה היה רגיל לאכול שני מיני תבשילין אוכל מין אחד היה רגיל לסעוד בי' בני אדם סועד בחמשה היה רגיל לשתות בי' כוסות שותה בחמשה בד"א מו' שעות ולמעלה אבל מו' שעות ולמטה מותר:
There is a brayta like the first phrasing {of Rav} and there is a brayta like the latter phrasing.
Like the latter phrasing: If one eats on erev 9th of Av, if he will later eat another meal, it is permitted to eat meat and drink wine, and if not, it is forbidden.
There is a brayta like the first phrasing: On erev 9th of Av, one should not eat two dishes, nor eat meat not drink wine. Rabban Shimon ben Gamliel says: He should change {his accustomed practice}. Rabbi Yehuda said: How should he change? If he was used to eating two types of dishes, he should eat only one. If he was used to eat with ten people, he should eat with five. If he was used to drink with ten cups, he should drink five. When are these words said? From 6 hours and one, but from 6 hours and earlier, it is permitted.
I believe that it important to read this Tosafot carefully. He is not saying that meat now includes all meat, such that we disregard the gemara which exempts salted meat. Rather, we are ragil, accustomed, now to eat salted meat, such that the other part of the brayta, and the practice of Rabbi Yehuda beRabbi Illai applies.

Thus, salted meat is not forbidden as a category of meat, but rather as a category of ragil.

This is quite important, in my humble opinion, because where Tosafot was talking, he was speaking of the seuda hamafsekes from 6 hours and on, just as the gemara was talking about. And the custom then developed to extend it to other times, such as the 9 days or associated time periods, depending on the particular minhag.

This temporal extension, in terms of what was it extended? The answer is that it was extended only in terms of meat and wine. It was not extended in terms of changing from regular practice. Thus, if you look in Shulchan Aruch -- which is lehalacha how to practice today, he mentions that one accustomed to drinking ten cups of beer should only drink five. But where does he say this? Only in regard to the seuda hamafsekes. He does not say this in regard to the 9 days, and other time periods. (And so too those who forbid even beer during the seuda hamafsekes, it is only in this regard but not to the full 9 days.) Thus, it is clear that only the meat and wine aspect of the seuda hamafsekes were temporally extended.

What, then, of salted meat? Should it be temporally extended for the 9 days (or for the week of Tisha beAv, or from the 17th of Tammuz)? Logically, if this is an extension of the seuda hamafsekes practice, then it should not. And indeed, it is an extension of the seuda hamafsekes practice -- it is not for nothing that it is the pair of wine and meat that is forbidden, quite clearly borrowed from the seuda hamafsekes of Tisha beAv.

However, the Bet Yosef brings a different analysis of this prohibition of 9 days (or other time period), citing the Teshuvat Ashkenazit. It is mitaam neder, and it is thus as if he vowed not to drink wine or eat meat during this time period. Thus, everything under the category of meat and wine is forbidden and everything else not. Thus, tavshil shel basar -- that is the potato cooked in the chulent, for example, which I'll eventually get to, and chometz shel yayin, vinegar of wine, are permitted. So too, rotav shel basar, gravy, is not meat. And taarovet shel basar, some food which contains an admixture of meat, is also not considered meat, and should be premitted. (And so in fact does the Aruch haShulchan say.) Under this theory, there should be no exceptions for salted meat, since it is in fact meat.

And the Shulchan Aruch brings down lehalacha a yesh mi sheOmer {but only cites him} that those who are accustomed to not eat meat during this time span {or 9 days, etc.} are allowed tavshil shel basar -- the potato out of the chulent -- and are forbidden in meat, even salted meat and flesh of fowl.

Shulchan Aruch also brings down that different people have different customs. Of the people who have the custom not to eat meat and wine during this time, some have the custom not to do so for the week of Tisha BeAv, some have the custom for the 9 days, and some have the custom not to do so from the 17th of Tammuz.

A bit later, he says that if someone in a location where they have a custom not to eat meat does so, he is doing wrong, and, to cite Kohelet 10:8:
ח חֹפֵר גּוּמָּץ, בּוֹ יִפּוֹל; וּפֹרֵץ גָּדֵר, יִשְּׁכֶנּוּ נָחָשׁ. 8 He that diggeth a pit shall fall into it; and whoso breaketh through a fence, a serpent shall bite him.

I can see the argument that this has the status of neder, a vow. Especially since minhag is often mitaam neder.

(I still have several sources to read on this score, though.)

Yet, I seriously wonder whether the nature of the vow is of one who vows off meat and wine, in those words. Rather, it is a vow to keep with the custom.

There is a related dispute in the commentaries of Tur and Shulchan Aruch about one who vows to not eat meat and wine from the 17th of Tammuz until Tish'a BeAv. The Bach says that he cannot eat meat or drink wine even on Shabbat. Magen Avraham rejects this, noting that he presumably meant to vow in keeping with the minhag, and the minhag was not inclusive of Shabbat, and therefore neither is this one who made the explicit vow. As if I have any say in the matter, I favor the Magen Avraham's position as more correct.

This was said in terms of temporal factors -- whether Shabbat is included -- and for one who explicitly made a vow. But the same should certainly apply to those who do not explicitly take the vow but just keep the custom. And (this is my extension) the same should apply not just to temporal factors such as Shabbat but to material factors as well.

That is, one who keeps the custom not to eat meat or drink wine -- or even one who explicitly makes this vow -- has the erev Tisha BeAv, seuda hamafsekes practice in mind. He is effectively adopting that which is prohibited during that time period, to another time period, for the same reasons -- excessive joy, etc. Since this was what they had in mind, the regular domain of meat and wine as defined by a regular vow not to eat meat and wine should not apply. Rather, meat and wine as defined by the gemara, or by seuda hamafsekes practice.

In which case we could say that the meat by that seuda which is prohibited because of a prohibition of meat (as opposed to a later prohibition because of regularity) does not include salted meat.

Regardless, that is not the halacha as brought down in Shulchan Aruch (before getting to certain commentaries). Rather, chicken and salted meat are included, for they fall under the definition of meat for vows, while tavshil shel basar (a potato from the chulent) does not -- and by extension, rotev shel basar (gravy) and taarovet shel basar (an admixture which contains meat) do not, and are permitted.

At this point, we have the halacha as encoded in the Shulchan Aruch, extended materially and temporally over the halacha in the gemara. But the path towards the final halacha is not yet over. We still have to forbid the tavshil shel basar, the potato in the chulent.

Tavshil shel basar is an interesting halachic category. It arises in gemara Chullin, in the context of waiting 6 hours. The gemara establishes that after eating meat, one needs to wait from one seuda to the next. Yet on the next side of the daf, in a discussion of mayim emtzaim, which is a hand-washing between courses, we are told that this practice is reshut, optional. However, an Amora points out, this is only between one tavshil and another tavshil, but between a tavshil and cheese, it is required. This is problematic to, among others, Tosafot, because if this is a tavshil which contains meat, then mere hand-washing should be insufficient. We should require an end to this meal and a beginning of another (which might mean 6 hours, etc.). The answer is that tavshil shel basar actually means not chulent including the meat, but rather food that was cooked with the meat but does not have any actual substance of meat therein. By cooking with the meat, it absorbed the taste {/flavor} of the meat. Taste of meat is not the same as substance within the halachic system, regardless of what our modern Western sensibilities have to say about atoms or particles of meat therein. Thus, according to pure halacha as classically deduced from that gemara (I have my own take on it which I will not get into over here), tavshil shel basar will not make you "fleishig," and of course you can eat milchigs immediately thereafter, though you should first wash your hands.

Of course, here too, the passage of time has added layers of restrictions. At some point, some people disregarded the halacha derived from the gemara and waited six hours after tavshil shel basar. This then became the custom, the minhag. And minhag is binding. And thus Rema paskens that one cannot, and to cite Kohelet 10:8:
ח חֹפֵר גּוּמָּץ, בּוֹ יִפּוֹל; וּפֹרֵץ גָּדֵר, יִשְּׁכֶנּוּ נָחָשׁ. 8 He that diggeth a pit shall fall into it; and whoso breaketh through a fence, a serpent shall bite him.

(I wonder, though, if there is room to argue that this is not a geder but rather a minhag ta'us lechumra, based on misunderstanding or ignorance of the gemara that then spread to custom, as opposed to a practice set up to be more machmir and to guard the more basic required practice. Regardless, and no matter how much I grimace, this is the accepted halacha nowadays.)

It could be that this regarding of tavshil shel basar as being fleishigs influenced people's approach to it and they thought (mistakenly) that one should not eat tavshil shel basar either during the 9 days. Or perhaps, since it does have meat flavor, it should be ruled as meat and it is inappropriate to eat this during the 9 days. Regardless, it became the custom, and so reports the Magen Avraham. (Taz, meanwhile maintains that tavshil shel basar and rotev is permitted.) So later authorities do indeed encode it as such and so the Aruch haShulchan (citing the Magen Avraham), for example, says that we cannot eat tavshil shel basar because of the minhag.

From the perspective of halachic logic of the prohibition, it does not really make sense. After all, a steak is joy, but salted meat and a potato from the chulent is not. And the extension to salted meat does not even translate to tavshil shel basar, since this is not on the level of something they were ragil to eat as a great meat dish. And if we take the approach of vows, we have already established that tavshil shel basar is not counted as meat for this purpose, just as chometz shel yayin is not the same as yayin (and is indeed still permitted). (But see in a moment how the definition in terms of neder might change.)

However, the custom does not need to make halachic sense. It only needs to develop as a minhag and then becomes binding, and so we are stuck. But more than than, the Magen Avraham gives reasons for prohibiting. The Bet Yosef and Darchei Moshe both wrote to prohibit (though not in Shulchan Aruch itself), and also, since the custom developed, it is now within the definition of basar. Therefore, even by nedarim nowadays, if someone forswore meat, he would be prohibited in tavshil shel basar, for vows follow minhag in terms of their definition. And so too here, this becomes the definition of the vow in terms of the 9 days as well.

Presumably rotev shel basar, gravy, is included in this prohibition. If water that has absorbed meat juice, then it has taam basar. If we look at it as melted fats and the like, even though this is not a steak, we would expect it to be treated as meat, following the same pattern and logic. (The Magen Avraham says that shamnunit would have the same status as meat and be prohibited, even without all this.)

What about taarovet shel basar, some food that is an admixture of meat and other material? By all logic, this should certainly be forbidden. After all, if mere taam, flavor, of meat will prohibit it for the 9 days, then certainly actual substance of meat should cause it to be prohibited.

Yet, the Aruch haShulchan in discussing the prohibition of meat and wine says that an admixture of wine with some other substance, or of meat with another substance, will not cause it to be prohibited, because the vow is against meat (/wine), and this is not included. This, he states, is even if its taste is discernible. A few seifim later he prohibits tavshil shel basar for the aforementioned reason, that of binding minhag even though the reason to permit is indeed reasonable. But he does not mention taarovet, and the impression one gets is that it is a different law entirely. (I admit I could be reading it wrong, but I don't think I am.)

That is, in Orach Chaim 551, he writes:

סעיף כג

מדינא דגמרא אין איסור באכילת בשר, רק בערב תשעה באב, ובסעודה המפסקת. אבל כבר קבלו אבותינו זה הרבה מאות בשנים: שלא לאכול בשר, ושלא לשתות יין, מן ראש חודש אב עד אחר תשעה באב, לבד מיום השבת, לזכר הקרבינות והנסכים שנתבטלו בעונותינו. ויש שנהגו מן שבעה עשר בתמוז, שבו בוטל התמיד. ויש שכתבו רק בשבוע שחל תשעה באב, אבל עתה בכל ארצות פזורינו – נוהגים מן ראש חודש.

ועתה בעוונותינו הרבים – כמה שמזלזלים באיסור זה! ולבד שהן עוברים איסור דאורייתא מטעם נדר, דכיון שאבותינו קבלו עליהם מנהג זה – הוי נדר של כלל ישראל. ולבד זה, איך לא נבוש ולא נכלם? הלא הרבה מהאומות שאין אוכלים הרבה שבועות לא בשר, ולא חלב, ולא ביצים; ואנחנו עם בני ישראל, שעלינו נאמר "קדושים תהיו" – לא יאבו לעצור את עצמם שמונה ימים בשנה, לזכרון בית קדשינו ותפארתינו? ועל כיוצא בזה אמר הנביא (יחזקאל לו לב): "בושו והכלמו מדרכיכם בית ישראל", ועונשם גדול מאד.

That is the setup. Then he writes, in seif 24:

ושארי משקים מותר, ואפילו חומץ של יין. והאיסור הוא בין בשר בהמה ובין בשר עוף. רק מי שהוא חלוש – יכול לאכול בשר עוף אם צריך לזה. ויש מי שמתיר ברוטב של בשר, ואין המנהג כן. ואפילו בשר שהיה אצלינו מקודם ראש חודש – אסור לאכול, ואפילו הנשאר משבת.

ולא דמי למה שכתב הרא"ש בפרק קמא דחולין, גבי איברי בשר נחירה שהכניסו ישראל לארץ, דבעיא להו אם מותרין או אסורין; וכתב הרא"ש דנפקא מינה לנודר מדבר, ויש לו מהדבר מקודם הנדר, עיין שם, דזהו בנדר חדש ולא בנדר שמדור דור, והוי כאיסור ישן.

ולעניין תערובות בשר בשאר דבר, נראה דלא הלכו בזה אחר נתינת טעם, דלא גזרו בכי האי גוונא. ועוד, דהנודר מיין – מותר בתבשיל שיש בו טעם יין, כמו שכתוב ביורה דעה סימן רטז, עיין שם. ואפילו מה שהיה יין באלו הימים, ונהפך לחומץ – גם כן מותר (ט"ז סעיף קטן ט).

ומי שנדר שלא לאכול בשר משבעה עשר בתמוז – מותר לאכול בשבתות, דכל הנודר – אדעתא דמנהגא נודר (מגן אברהם סעיף קטן כז). ויש חולקין, ומצריכין התרה (שם בשם ב"ח). מיהו אם לא אמר בלשון נדר, רק בלשון קבלה – וודאי מותר (שם

Thus, he explicitly allows taarovet shel basar, even if it gives taam to something else. But then later, he writes, in seif 26:

כתבו רבותינו בעלי השולחן ערוך בסעיף י: יש מי שאומר שהנוהג שלא לאכול בשר בימים הנזכרים – מותרים בתבשיל שנתבשל בו בשר, ואסורים בבשר מלוח, ובשר עוף, ויין תוסס. ומותר לשתות יין הבדלה, וברכת המזון. ונוהגין להחמיר שלא לשתות יין, לא בברכת המזון ולא בהבדלה, אלא נותנים לתינוק. ובמקום דליכא תינוק – מותר בעצמו לשתות ההבדלה; עד כאן לשונו.

ואנחנו נוהגים לאסור בתבשיל שנתבשל בו בשר (מגן אברהם סעיף קטן כט), וכן המנהג הפשוט, ואין לשנות.

Is he reversing himself here, when saying to follow the Magen Avraham? Rather, he seems to distinguish between tavshil shel basar, which is prohibited, and taarovet shel basar, which is permitted.

Could this really be so? Could we say that actual substance, though not visible, in a mixture will be permitted during the 9 days, but something that merely has flavor will be forbidden? Even though according to the initial Talmudic halacha, one will make you fleishigs and the the other will not? We can, because development of minhag is historical rather than logical. I can certainly advance a psychological reason for it. With a taarovet, we never see the meat in the cooked dish, and it has a different name and thus status. Meanwhile, in chulent or chicken soup, you actually see a piece of meat, be'ein, and so the dish takes on the status of meat it the viewer's mind. And so even the potato has the status of the meat.

Of course, minhagim can change, though the only apparently permissible direction is towards prohibition, so I would not be surprised, if taarovet is permitted, if eventually or even now it will be forbidden.

Luckily, things cooked in a fleishigs pot, which does not contain meat (even if it is ben yomo, as far I as understand), is still not prohibited.

Chulent and Kugel on Erev Shabbos
Last week, I saw something in the My Machberes column in the Jewish Press:
This past Friday, all take‑home food stores were open and busy. Many homemakers work full-time, have large families and even larger extended families, with grandparents, grandchildren, and cousins, entertain many guests, etc., and the convenience offered by take‑home food, is an absolute necessity. The stores are crowded and long lines form, waiting to be served.

In keeping with the custom of many great Chassidishe Rebbes, who tasted the food prepared for Shabbos on Friday afternoon, some husbands order a plate of cholent, kugel and kishka warmed up, to be eaten on the spot. Many of the take‑out stores have tables and chairs, restaurant‑like, and on Friday afternoons every chair is taken, many waiting their turn to “taste” the Shabbos foods at a table, while others eat standing up. However, On Friday Erev Shabbos Chazon, the lines overflow as usual, but every chair is empty.
It is really to "keep with the custom of many great Chassidishe Rebbes," or is such an excuse to fress on erev Shabbos when the food is hot and newly prepared? Let us assume this is because of the minhag. It is then a great thing that while everyone was buying food for Shabbos, of course no one would sit and eat in the store. (Presumably no one had the custom of shavua shechal bo rather than all 9 Days, or else felt uncomfortable flaunting this in public.) Here is, then, another example of minhag clashing against minhag. If the minhag not to eat meat gives way in the face of Shabbos, then why should it not give way in the face of the associated to Shabbos custom of tasting the food? This is also a "mitzvah." It doesn't, of course.

However, I would point out this sentence:
[S]ome husbands order a plate of cholent, kugel and kishka warmed up, to be eaten on the spot.
So we know they cannot eat the meat of the cholent, because it is meat. And they cannot eat the potatoes of the cholent, because it is tavshil shel basar. But the kugel and kishka? Why not? Perhaps in some cases, it is at most taarovet shel basar, but it probably is not even that in many cases. I guess because it has the presumption of being fleishigs. If so, maybe this is a further extension of the prohibition within the minhag. Either that or if they couldn't eat the chulent, they did not feel like sitting down just to eat some kugel, if they couldn't get their chulent as well, and never mind "the custom of many great Chassidishe Rebbes."

The Nine Days And Lent
One final, interesting point. The Aruch HaShulchan decried those who were mezalzel in the minhag by not practicing it, and compares this Jewish practice to Lent! He writes:

מדינא דגמרא אין איסור באכילת בשר, רק בערב תשעה באב, ובסעודה המפסקת. אבל כבר קבלו אבותינו זה הרבה מאות בשנים: שלא לאכול בשר, ושלא לשתות יין, מן ראש חודש אב עד אחר תשעה באב, לבד מיום השבת, לזכר הקרבינות והנסכים שנתבטלו בעונותינו. ויש שנהגו מן שבעה עשר בתמוז, שבו בוטל התמיד. ויש שכתבו רק בשבוע שחל תשעה באב, אבל עתה בכל ארצות פזורינו – נוהגים מן ראש חודש.

ועתה בעוונותינו הרבים – כמה שמזלזלים באיסור זה! ולבד שהן עוברים איסור דאורייתא מטעם נדר, דכיון שאבותינו קבלו עליהם מנהג זה – הוי נדר של כלל ישראל. ולבד זה, איך לא נבוש ולא נכלם? הלא הרבה מהאומות שאין אוכלים הרבה שבועות לא בשר, ולא חלב, ולא ביצים; ואנחנו עם בני ישראל, שעלינו נאמר "קדושים תהיו" – לא יאבו לעצור את עצמם שמונה ימים בשנה, לזכרון בית קדשינו ותפארתינו? ועל כיוצא בזה אמר הנביא (יחזקאל לו לב): "בושו והכלמו מדרכיכם בית ישראל", ועונשם גדול מאד

Thus, he admits that the actual practice mandated by the gemara is only on erev Tisha beAv during the seuda hamafsekes. (He does not add, only after 6 hours in the day.) Yet people have adopted all sorts of temporal extensions. Yet, in our great sins, many don't treat this prohibition properly. Yet it is Biblical, for it has the status of neder. And furthermore, look at the gentiles! Are we not embarrassed? They have Lent, and for many weeks (40 days) they do not eat meat, milk, or fish.

(To interject {says Josh} -- I would note that the Christian practice varied over time as well, permitted and prohibiting different foods. Furthermore, interestingly, it seems that Christian practice also extended this period of time. To cite Wikipedia:
The Lenten period of forty days owes its origin to the Latin word quadragesima, referring to the forty hours of total fast that preceded the Easter celebration in the early Church.[3] The main ceremony was the baptism of the initiates on Easter Eve. The fast was in preparation to receive this sacrament. Later, the period from Good Friday until Easter Day was extended to six days, to correspond with the six weeks of training, necessary to instruct the converts who were to be baptized.
It seems to have gone from 40 hours to six days to forty days.)

Anyway, the Aruch haShulchan continues: They refrain from consuming meat, milk, and eggs, and we, upon whom was stated "Thou shalt be holy" do not desire to hold ourselves back eight days of the year, as a remembrance for our holy house and glory? And upon things like this the Navi said, "Be embarrassed and ashamed, from their ways, house of Israel." And their punishment is great indeed.

So ends the Aruch haShulchan.

I wonder at this, though. Firstly, the trend and general disposition of the gemara was to minimize the trend towards asceticism, as we saw in the past post with Rabbi Yehoshua ben Chanania who challenged the ascetics, and as we saw from the fact that Rav minimizes it from erev Tisha BeAv to only seuda hamafsekes, and only during the six hours. And the gemara takes pains to say that it is the intersection rather than union of these two times, so as to further reduce the asceticism. And then it reduces it materially. True, custom varied and new things were progressively added, as the drift and feature bloat always occurs. But I am not sure countering this trend is a bad thing. And we need not be as ascetic as certain Christian sects are. Our Judaism can be self-confident and self-assured, not looking at what the others are doing.

Further, while it is true that minhag mitaam neder, and we often treat it in this regard (this case is a great example of this, as we use definitions of meat and wine from neder), I wonder how far this extends. Just to throw out an example, while Shacharit and Mincha are Rabbinically required, Maariv is a reshut. But it is not a reshut, writes e.g. the Rif, once you do it a few times. Or because all Israel accepted it. It has the status of neder. If this is so, what is worse to miss, Shacharit or Maariv? Would we really say that someone who neglects to daven Maariv is violating an issur deOrayta? Perhaps. (Maybe there are other reasons why not.) But it seems like it may be more polemical that straight halachic. I don't have the sources to back me up in this, though.

Further, the Shulchan Aruch recorded various customs in this regard, with different lengths of time. And his statement from
Kohelet 10:8:
ח חֹפֵר גּוּמָּץ, בּוֹ יִפּוֹל; וּפֹרֵץ גָּדֵר, יִשְּׁכֶנּוּ נָחָשׁ. 8 He that diggeth a pit shall fall into it; and whoso breaketh through a fence, a serpent shall bite him.
was specifically to someone who didn't in a place where they were noheg to do so.

I wonder, then, in a place where many are mezalzel (as Aruch haShulchan writes), if this is then showing that this is not the accepted custom by everyone. And if so, perhaps it does not have the status of neder of all of Israel, such that one violates a Biblical prohibition by ignoring it.

Even if that particular generation does violate in this regard, I wonder about the next generation. After all, all of this is minhag, and where minhag changes, it has changed, and that is definitional of the binding practice.

Please note: Please don't take any of this as a recommendation of how to act, either lekulah or lechumra. Consult your local Orthodox rabbi, and also learn through the sources yourself. And positions I take here need not, indeed do not, reflect my actual practice. Also, don't think I am saying this because I am bitter at not being able to fress cold-cuts, or left-over chulent, during the 9 days. Rather, this is one example among many of a greater trend and drift, that continues to this day, in many different places in halacha. And, I am not done researching this area yet, and may feel the need to revise.


Reuven said...

Kol hakavod on the discussion. Very interesting.
Just wanted to point out:
* the view that Minhag has din of neder deoriasa is commonly attributed to Chasam Sofer. See שו"ת חתם סופר חלק ב (יו"ד) סימן קז as one example of a מראה מקום but I am sure that it's widespread.
* There is (in my opinion) a fascinating discussion about eating the meat itself that is left over from shabbos as well as before Rosh Chodesh during the nine days. In contrast to the aruch hashulchan's dismissal of the basar nechira gemara (in your citation), many used this gemara as a heter. See שדי חמד ח"ה מערכת בין המצרים ו' עמ' 278 and ג' עמ' 366. I don't have this at home, so I didn't have a chance to finish the second piece. Included in the discussion there is whether a fleshig melave malka is allowed for one who is accustomed to do so every week.

joshwaxman said...

I'll try to take a look at it.


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