Sunday, December 25, 2016

Bava Metzia 90a-b: How should we pasken?

The gemara reads:

תא שמע דשלחו ליה לאבוה דשמואל הלין תורי דגנבין ארמאי ומגנחין יתהון מהו שלח להו הערמה אתעביד בהו אערימו עלייהו ויזדבנון אמר רב פפא בני מערבא סברי לה כר' חידקא דאמר בני נח מצווין על הסירוס וקא עברי משום (ויקרא יט, יד) ולפני עור לא תתן מכשול סבר רבא למימר ימכרו לשחיטה א"ל אביי דיין שקנסת עליהם מכירה פשיטא בנו גדול כי אחר דמי בנו קטן מאי רב אחי אסר ורב אשי שרי מרימר ומר זוטרא ואמרי לה הנהו תרי חסידי מחלפי אהדדי
or they [the scholars] sent to Samuel's father: What of those oxen which Arameans1  steal [at the instance of the owners] and castrate?2  He replied: Since an evasion was committed with them, turn the evasion upon them [their owners], and let them be sold!3  — R. Papa replied: The Palestinian scholars4  hold with R. Hidka, viz., that the Noachides are themselves forbidden to practise castration, and hence he [the Israelite, in instructing the heathen to do it,] violates, Ye shall not put a stumbling block before the blind.5  Now, Raba thought to interpret: They must be sold for slaughter.6  Thereupon Abaye said to him: It is sufficient that you have penalised them to sell.7Now, it is obvious that an adult son is as a stranger;8  but what of a minor son? — R. Ahi forbade it;9  whilst R. Ashi permitted it. Meremar and Mar Zutra — others state, certain two hasidim — 10 interchanged with each other.11
1) Tellingly,  the Rif does not cite this gemara lehalacha. The Rosh does, as does the Nimukei Yosef. But I would like to justify the Rif, who I think likely correct here. The most straightforward is that the Rif sees Rav Pappa's statement that this is all based on the rejected unique position of Rav Chidka, and so every Amora who comments on the issue (Abaye, Rava, Rav Ashi, Rav Achi, Mereimar, Mar Zutra) are only going according to this rejected opinion of Rav Chidka.* So none of it is lehalacha.

I think that there is, even among many of those who are stringent in the sense of even seeing any problem at all, a desire to cleverly do away with the problem. The Jews of Eretz Yisrael saw a potential problem and asked Shmuel's father. When he say

הערמה אתעביד בהו אערימו עלייהו ויזדבנון

he is not saying that that we will employ trickery with them to punish their haaramah (trickery) and therefore punish them by making them sell it. He is, rather, suggesting a haarama to permit. Rather than outlawing the use of these geldings entirely, he says to sell them. They thereby don't suffer much. In fact, they have profited from castration, as another Jew or else a gentile will have use for the animal for plowing.

Rav Pappa then explains that the whole concern was for a rejected opinion.

Rava thought to say that this sale should be to be slaughtered, but Abaya corrects him that the sale is enough of a fine. And Rava submits to this interpretation of Abaye**. This is all within the father of Shmuel's opinion, so we understand that this sale is indeed a haarama.

Indeed, it is obvious, says the gemara, that the sale can be to his grown son. Is that not a haarama? But then, according to Rav Ashi, the haarama extends to the fact that he can sell to his minor son, who is still dependent upon his table.

Mereimar and Mar Zutra, who we see e.g. in the beginning of Taanis (12b) go out of their way to be stringent for positions of Eretz Yisrael (switching their shoes though it was not required), similarly we chassidim regarding this, even though it is not really a halachic requirement. And how far were they stringent? They would switch castrated bulls with one another.

It is a fair assumption, then, that this is not required halacha, but a stringency for a rejected opinion, in which even those who are stringent employ all sorts of haarama to almost eliminate it.

If a Rishon decides that it is not binding halacha, like Rav Papa, given that we are not choshesh for Rav Chidka's opinion, it is well within his rights.

* Others, who argue with Rif, say that it couldn't be that all these Amoraim are going according to Rav Chidka, and therefore they have a different reason to forbid, which is then lehalacha. See e.g. Nimukei Yosef.

** See Rosh. This is fascinating in its own right. He says, presumably based on the words סבר למימר, that when Abaye argued with Rava, Rava accepted Abaye's argument. This is something we could conceivably apply across Shas.

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