Bereishit: Natural Consequences

I've written before extensively on reading parshat Bereishit, and the narrative in the Garden of Eden as metaphor. A slight rehash: I think that such a reading should arise from text-internal concerns indicating its genre rather than from discomfort with accepting its claims as true at face-value. An author can write a story as fiction (Goldilocks and the Three Bears) without it containing some deep allegorical meaning, and an author can write falsehoods due to primitive / mistaken beliefs or due to malice (e.g. UFO stories) without it containing some deep allegorical meaning. With that said, I think that use of prototypes and the nature of the punishment as establishing the natural order, or the existence of a compelling allegory that works well with many of the details (the beginning of civilization / agriculture) would argue in favor of an allegorical meaning.

This year, I have been thinking about natural consequences. A surface read of the story certainly presents these changes to the natural order as a penalty from On High, because Adam and Chava did something wrong. But it can be viewed as a natural consequence. (See here for how it is used as a discipline strategy.)

Humankind was not meant to be a primitive primate, or an unblemished angel, or an unthinking automaton. God granted mankind with a Tzelem Elokim, that is, freedom of thought and choice, to be able to chose from good and evil. This design, briefly described in Genesis 1 (27), is described in greater detail in Genesis 3. Man is naked and uncomplicated, a wordplay / opposite of the serpent's cunning. He / she internalizes the ability to choose between bad and good by eating the Forbidden Fruit. The action, not the fruit, brings from potential to actuality the ability to make such a selection. What the snake says is as least partly correct, as is God's command, that הֵן הָאָדָם הָיָה כְּאַחַד מִמֶּנּוּ, לָדַעַת, טוֹב וָרָע. In this way Adam and Eve are "in His form and in His image". Such a human cannot remain in a Garden, but is properly meant to interact with the world.

The punishments are the way things should be. Mankind needs to and is meant to strive to produce, rather than being granted the rewards on a platter. That plays out in conventional historical human society, classically, as men sweating in the field to produce grain and as women enduring the pain of childbirth. The snake is a stand-in for humankind's struggle with their Evil Inclination. There is a love-hate relationship. There is constant struggle between them, and the snake is never really satisfied with its food.

A relative noted an interesting natural consequence. Other female primates - monkeys, chimpanzees, gorillas, do not suffer the pain of childbirth. Only humans do (and Neanderthals did). In Bereishit 3:

טז  אֶל-הָאִשָּׁה אָמַר, הַרְבָּה אַרְבֶּה עִצְּבוֹנֵךְ וְהֵרֹנֵךְ--בְּעֶצֶב, תֵּלְדִי בָנִים; וְאֶל-אִישֵׁךְ, תְּשׁוּקָתֵךְ, וְהוּא, יִמְשָׁל-בָּךְ.  {ס}

16 Unto the woman He said: 'I will greatly multiply thy pain and thy travail; in pain thou shalt bring forth children; and thy desire shall be to thy husband, and he shall rule over thee.' {S}

What causes this pain is the larger infant head size, in order to contain the larger human brain. So, in fact, the pain of childbirth is a natural consequence of this ability to reason and choose.
a

Arakhin 2b: Who does Yochanan ben Dahavai cite?

Today, in Daf Yomi, we started Arakhin. In the beginning of Arakhin, the Stam goes through various Mishnayot, asking each time the purpose of the inclusive language of HaKol. On Arakhin 2b, we encounter the following:

לאיתויי סומא באחת מעיניו ודלא כי האי תנא

The Gemara answers: It serves to add one who is blind in one of his eyes, and teaches that he is obligated to appear in the Temple, whereas one who is entirely blind is exempt. The Gemara notes: And this ruling is not in accordance with the opinion of this tanna, Rabbi Yehuda.

דתניא יוחנן בן דהבאי אומר משום רבי יהודה סומא באחת מעיניו פטור מן הראייה שנאמר יראה יראה כדרך שבא לראות כך בא ליראות מה לראות בשתי עיניו אף ליראות בשתי עיניו

As it is taught in a baraita that Yoḥanan ben Dahavai says in the name of Rabbi Yehuda: One who is blind in one of his eyes is exempt from the mitzva of appearance, as it is stated:“ Three times in the year all your males shall appear [yera’eh] before the Lord God” (Exodus 23:17). According to the way in which the verse is written, without vocalization, it can be read as yireh, meaning: Shall see, instead of yera’eh, meaning:Shall appear. This teaches that in the same manner that one comes to see, so he comes to appear, i. e., to be seen: Just as the usual way to see is with both of one’s eyes, so too, the obligation to appear applies only to one who comes with the sight of both his eyes. This is one possible explanation for what is added by the general statement of the mishna in Ḥagiga 2a, according to Ravina.

According to the highlighting, Yochanan ben Dahavai is a 4th generation Tanna. Rabbi Yehuda, who without patronymic refers to Rabbi Yehuda bar Ilai, is a 5th generation Tanna. Is seems strange for the former to cite the latter.

Meanwhile, Rabbi Yochanan ben Dahavai, at least according to my biographical data (e.g. Who's Who In The Talmud), is a student of Yehuda ben Tema, a 4th generation Tanna:

.
If so, the easiest to do would be to add the patronymic "ben Tema", and to assume that the absence is due to scribal error akin to dittography. Repeatedly in the sections above, certain positions were taken to be not that of Rabbi Yehuda, and there, the reference was to Rabbi Yehuda beRabbi Ilai. It is understandable, then, for the "ben Tema" to be accidentally dropped here.

Looking at the parallel text in Sanhedrin 2a, it appears that they do have Ben Tema:

דתניא יוחנן בן דהבאי אומר משום רבי יהודה בן תימא הסומא בא' מעיניו פטור מן הראיה שנא' יראה יראה כדרך שבא לראות כך בא ליראות מה לראות בשתי עיניו אף ליראות בשתי עיניו

It is difficult to say that occurrences in Chagiga, Arakhin, in Yerushalmi, and in the source Tosefta that they are citing all made the same error. Maybe it is just OK to leave out the patronymic, and people would have understood based on context which Rabbi Yehuda was intended; and only Sanhedrin added it.

This, of course, operates under the assumption that my biographical data is correct.

Now, looking at Toledot Tannaim vaAmoraim, volume 2, page 547, I see that he has a discussion:

He mentions that, though in our printed texts in Arakhin we lack it, the patronymic ben Tama does appear in Dikdukei Soferim.

Bechorot 46: In defense of Shmuel

The Mishna:

On the point of whether the live head of a nefel which was then retracted prior to the twin's birth effectively is poter (either "exempts" his brother, or consider: effects a peter rechem -- each has the same effect). The Mishna states that it would.

However, the language of the Tosefta strongly suggests otherwise: Tosefta perek 6:

That is, it just says שיצא but does not specify the head. Indeed only for the viable nine-month infant who died is the head mentioned. And then, we see rosho verubo mentioned in the general rule. This Tosefta would be like Shmuel, in the gemara, who is "refuted" by the Mishna.

I think that because of this, the Minchat Bikurim emends the text of the Tosefta, so that it would match the Mishna.

Here is the start of the Gemara:

However, I personally believe that it is difficult to refute Shmuel based on the Mishna, as the setama degemara eventually concludes. He is a first generation Amora, just like Rav (who sometimes is a Tanna who can effectively argue). He surely knows the text of the Mishna. He is arguing with it. And it turns out, there is a brayta that supports him!

If so, I don't think we need to reinterpret the Mishna as the gemara first attempts. If we do, I am somewhat convinced by the reinterpretation - that the focus in the reisha was on the aspect of bechor lanachala rather than on the peter rechem, and the author of the Mishna tried too hard to set up a minimal pair, of a contrasting case, because the main focus was the law in the seifa, where a live head would not only not be a bechor lanachala but even not for peter rechem. That some other distant Mishna states that novelty explicitly or implicitly does not mean, to me, that the gemara is right that the novelty is no longer necessary, and so the kvetch is unnecessary, which means we cannot reinterpret the Mishna. I don't accept the tanina, which I am not sure is even so regularly applied. Rather, it shows that the "novelty" is indeed something that is true, that holds in general. And so the Tanna's focus was similarly on this law, and in this focus ended up loosening the precision of the reisha. Indeed, I suspect that the Tosefta, and its language, is an earlier form of the gemara in reinterpreting the Mishna. (Thus for example the emphasis on rosho verubo.)

But even if we do say the Mishna is against Shmuel, we have a brayta that supports him. This is no refutation.

Bechorot 37-38: Trephination

Once again, I find myself taking issue with a Talmudology post. Trephination might be mentioned in the Mishna / Talmud, but why did the ancients practice this art?

Let us start by establishing the meaning of the word מקדח. It literally means a drill or borer, rather than the hole made by a drill. To cite Jastrow:

Talmudology writes:

בכורות לז,ב

ובגולגולת ב"ש אומרים כמלא מקדח וב"ה אומרים כדי שינטל מן החי וימות

Concerning the deficiency in the skull: Beit Shammai say that it must be missing a piece like the size of a drilled hole, and Beit Hillel say: It must be missing an amount that if removed from a living person, he would die.

But just how big is Bet Shammai’s “size of a drilled hole?” In tomorrow’s daf (38a) we learn that it is the size of “the small drill hole, used by physicians” (בקטן של רופאים). So around the first century BCE there were physicians going around drilling holes (of various sizes) into the skulls of the living. Why on earth would they do such a thing, and just how common was this practice?

I believe that this is a mistaken translation. It is not that the physicians were drilling holes of various sizes, large and small. Rather, there were drills of various sizes. The Mishna in Ohalot, cited by our gemara, contrasts Rabbi Meir's position that it was a hole made by a small drill, that of doctors, to the chachamim who say it is the hole made by a larger drill, used in the Temple:

דתנן באיזה מקדח אמרו בקטן של רופאים דברי רבי מאיר וחכ"א בגדול של לשכה

As we learned in a mishna (Oholot 2:3): With regard to which drill did Beit Shammai state their opinion concerning an incomplete skull? It was with regard to a small drill of doctors, used for drilling bones. This is the statement of Rabbi Meir. And the Rabbis say: It was with regard to a largedrill, such as that used in the Temple chamber. According to the mishna concerning a window that imparts impurity, the size of this drill is like that of a sela coin, and the opinions of Beit Shammai and Beit Hillel would still be identical.

So it is not a small vs. large hole that doctors make, but rather a smaller hole, made by the smaller drill, which is the standard drill doctors use. Nothing in the Mishna or gemara itself states that doctors use this to drill a hole in a skull - trephination -  rather than in other bone, but Rashi does in fact make the leap and state that the doctor drilled a hole in the skull:

באיזה מקדח אמרו - ב"ש בגולגולת כמלא מקדח כקטן של רופאים שקודרין בו את הראש לתקן את המכה:

Along the way, Rashi also gives an explicit reason the doctors would drill such a hole - to fix a head injury.

This is also where I think Talmudology missed the boat. Why did the doctors drill into the skull? He should mention Rashi. Instead, the only scientific discussion is why it was practiced in rather ancient cultures, as a result of superstition:

“..an opening in the head, trephination, could be “the activating element,” the act that could allow the demon to leave the body or the good spirit to enter it, for the necessary “undying” process to take place. If deities had to enter or leave the head, the opening had to be sufficiently large…The head was chosen for the procedure, not because of any particular intrinsic importance or because of magic or religious reasons, but because of the unique and universally accumulated experience observed by primitive man in the Stone Age with ubiquitous head injuries during altercations and hunting. Otherwise, the pelvic bone or femur could have served the same purpose. We must recall that even the much more advanced ancient Egyptian, Mesopotamian, Hindu, and even Hellenic civilizations believed the heart to be the center of thought and emotions, not the brain. In fact, the association of the heart with emotions lingered to the present age.

And so it was that the procedure came to be practiced across the world. This may also explain how it also ended up being used in ancient Israel, and trickled down into a teaching about ritual impurity cited by Bet Shammai.

If the purpose was to discuss the science of the Talmud, it seems that here would be a place to discuss trephination as contemporary science, as practiced by Galen, or by Hippocrates. For instance, here is Hippocrates:

That is just a taste. It is utterly confounding that he doesn't present this from a medical perspective.

Bechorot 36: The Truth Will Come Out!

The Talmudology blog is an excellent Daf Yomi blog. Its author, a doctor, looks at the modern scientific evidence for or against ideas presented in the Talmud. On today's post, about milta de'avida li'igluyei, I would have to say that he is off the mark.

In evaluating the veracity of a scientific claim in the Talmud, there are two steps. The first is establishing the content of the scientific claim. The second is checking whether the content matches the modern observable facts. I think the blogpost fails on the first step, by misidentifying the content of the claim. The disproof in the second step then misses its mark.

The claim, as put forth by Talmudology:

בכורות לו, א

מילתא דעבידא לאיגלויי לא משקרי בה אינשי

People do not lie about something that may later be revealed [as having been false]

Can a Cohen may be relied upon to testify that first-born animal in his possession has been declared by an expert to have a blemish (which would widen its permitted uses)? Rav Yehuda ruled (in the name of Rav) that the Cohen should indeed be believed. Since that expert could come forward and state that he issued no such ruling, the Cohen would not risk being discovered as having lied. In a small village or town of a few dozen to a few hundred families, this ruling is reasonable. To lie would expose the Cohen to the risk that his fraud might be exposed. But does Rav Yehuda’s no-lying rule make sense in today’s society?

The full quote is actually כל מילתא דעבידא לאיגלויי לא משקרי בה אינשי, but the omission of the word kol is not relevant. What is relevant is the English word I bolded in red above, "may".

As a contrast, this is how the Koren Talmud translated it (from Sefaria):

With regard to any matter that is likely to be revealed, people do not lie about it.

This is a major distinction. If Rav Yehuda, citing Rav, or even the setama degamara explaining him, asserts that one will not lie about anything which may / might be revealed, that means that where there is any level of risk in the matter, the person will not lie. And that is easily falsifiable. Students regularly cheat on tests, and are caught. People regularly lie, and they are caught in the lie, so there was obviously some risk. This assertion is easy to falsify.

If Rav Yehuda citing Rav asserts that this holds only when the truth is likely to come out, then that is more difficult to falsify. One would need to present studies where people lied even though there was a good likelihood that the truth would eventually come out.

The word דעבידא in the Aramaic strongly suggests the latter interpretation. That we can somewhat expect it to be revealed. The cases in which this is applied in the gemara also lends support to this interpretation. A woman claims her husband died, and we allow her to remarry. Because people know other people, the husband walking around when he is reported dead can be expected to eventually come to light. In terms of blemishes of bechorot declared by an expert, a bechor is big news, and the expert circulates. A local expert is somewhat likely to hear, and the lie will be found out.

Meanwhile, all of Talmudology's studies have to do with people who lie, either with no risk, or some risk, of being caught. This is "may", not "likely". Therefore, it is irrelevant.

Talmudology's blogpost concludes:

People will lie even if there is a risk of being discovered, and will do so brazenly and without concern for others. Just ask Elizabeth Holmes. Actually, don’t ask her, since she’d probably lie you. Rav Yehuda’s rule that people will not lie if there is a risk of their lie being uncovered is at best aspirational. Sadly, it is no-longer an accurate description of social norms. (Perhaps it never really was.) But wouldn’t it be wonderful if it were so?

Perhaps Elizabeth Holmes is somewhat who lied while knowing that she would eventually be caught out. Perhaps she dug herself into a hole and then lied in order to push off the inevitable fallout. Regardless, an anecdote is not data, and the plural of anecdote is not data. Indeed, the gemara in Bechorot itself pointed out a counterexample and dismissed this anecdotal evidence:

רפרם בפומבדיתא הוה ליה בוכרא ויהביה ליה לכהן בלא מומא אזל שדא ביה מומא יומא חד חלש בעיניה אייתיה לקמיה א"ל בכור זה נתן לי ישראל במומו ארפסיניה לעיניה חזייה בשקריה א"ל לאו אנא דיהיבתיה לך

In this regard, the Gemara relates that Rafram, who resided in Pumbedita, had a firstborn animal and he gave it to a priest in an unblemished state. The priest went and caused a blemish in it. One day, Rafram had an affliction in his eyes, which rendered it difficult for him to open them. The priest to whom Rafram had given the firstborn animal brought it before him,as an expert examiner, for him to deem the animal permitted. The priest said to him: An Israelite gave me this firstborn animal with its blemish upon it. Rafram forced his eyes open and saw the animal and recognized it [bashkerei] as the one he himself had given the priest. Rafram said to the priest: Is it not I who gave this firstborn animal to you?

ואפ"ה לא חש לה למילתא האי הוא דחציף כ"ע לא חציפי

The Gemara notes: And even so, Rafram was unconcerned by the matter of the priest’s attempted chicanery, as he maintained that it is only this priest who is impudent, but all other priests are not impudent. This scenario did not cause Rafram to discredit any other priest’s claim that he received a blemished firstborn animal from an Israelite, as this was an exceptional case. This priest demonstrated extreme impudence by bringing it to be examined by Rafram himself, and therefore one cannot draw conclusions about the behavior of other priests from this incident.

In sum, the Rav Yehuda's assertion was not disproved and shown to be merely "aspirational". Rather, the assertion was misunderstood (IMHO) and what was disproved was an assertion prime.

Chullin 96: What does Rav Pappa mean that Shmuel's position is a matter of Tannaitic dispute?

In today's daf yomi (Chullin 96a, going on to b), Shmuel had a position that only that portion of the sciatic nerve which was over directly the spoon of the thigh was prohibited. And Rav Pappa says:

אמר רב פפא כתנאי אכלו ואין בו כזית חייב רבי יהודה אומר עד שיהא בו כזית

That is, while the Mishna did not have Rabbi Yehuda argue regarding whether one who ate a full gid hanasheh was liable, in a brayta Rabbi Yehuda does argue. And, somehow, one unspecified side of this argument lines up with Shmuel's position limiting the (Biblically) prohibited area of the gid.

Rashi explains it as follows:

אמר רב פפא כתנאי - כדמפרש ואזיל דרבנן אית להו דשמואל ורבי יהודה לית ליה דשמואל

This is indeed a faithful rendition of the conclusion of the gemara, that the side in the machlokes who holds like Shmuel is the Rabbanan (=Rabbi Meir, I think), and it is not in accordance with Rabbi Yehuda.

The gemara which follows bears the clear mark of authorship by the setama degemara. It is a derasha chain. This Tanna interprets this pasuk in this way. So how does the opponent interpret the verse? And if so, where does the first Tanna derive that law? And so on, until the game of musical chairs ends. This is a systematic approach to derashot that one often finds in the setama.

And the way it operates here is that Rabbi Yehuda requires "asher al kaf hayarech" to derive a specific law, while the Rabbanan utilize that verse for Shmuel's derasha. So, even though the specifics of the dispute between Rabbi Yehuda and the Rabbanan about eating a berya of gid less than a kezayit have little semantically to do with Shmuel's identification of the prohibited gid, it turns out that the two positions are related because of competition for the verse each is derived from.

Besides being somewhat awkward and surprising, in the sense that Rav Pappa should really have been much clearer in how these relate, there are difficulties in the derasha chain itself. In particular (96b), we have to believe that Rabbi Yehuda holds that the presence of the word achila in the pasuk indicates that it must be a kezayit, and a berya does not suffice, even though (as Tosafot points out), in all other places, one is liable for a berya (such as an ant) even less than a kezayit, and there is no indication that Rabbi Yehuda disagrees there. Tosafot's question is better than any answer. And the Rabbanan's rejoinder, that the word achila is to indicate that one is liable even if there are multiple olive measures and he only ate one is also suspect. Would one say that one is liable only if he ate all the cheilev?

My resolution of Rav Pappa is against what is explicit in the setama degemara, but I think that it makes sense. Shmuel's position is in accordance with Rabbi Yehuda, not the Rabbanan. Here is how.

If the entire gid is forbidden, then it makes sense to say that eating a berya, meaning a complete forbidden entity, makes one liable, even if that whole entity is less than a kezayit. But if you tell me that only a small portion of the entity is forbidden, one cannot label it a berya. If only the cheilev of the ant were forbidden, eating a whole ant that includes that cheilev is not berya. And eating just all that forbidden portion is also not berya.

Therefore, since Shmuel holds that only a small subsection of the gid, namely that over the spoon of the thigh, is forbidden, Rabbi Yehuda would say that there is no aspect of berya here for eating that entire forbidden entity. The forbidden part of the gid is not a complete entity in and of itself. Therefore, the Rabbanan who maintain that it is indeed a berya for less than a kezayit could not hold that only a small portion of the gid is forbidden, and argue upon Shmuel.

How could Yaakov Avinu go out at night?

A few days ago, in daf yomi (Chullin 91a), we saw that one a Torah scholar should not go out alone at night, and that this is derived from the case of Yaakov, who went out alone after his small vessels at night.

(בראשית לב, כה) ויאבק איש עמו עד עלות השחר אמר רבי יצחק מכאן לת"ח שלא יצא יחידי בלילה

As Rashi explains, they wrestled until dawn, showing that mazikin cannot harm during the day, such that he would not need shemira during the day.

מדקאמר עד עלות השחר - שמע מינה לא ניתנה רשות למזיק להזיק ביום לפיכך לא הוצרך שמירה:
מכאן לתלמיד חכם כו' - שהרי יעקב נשאר יחידי והוזק:

Someone in the shiur asked how Yaakov could go out alone at night. After all, the avot kept the entire Torah. (And, I would add, the gemara just above sort-of endorsed this idea, stating that Yosef in disguyise commanded that his brothers be able to see the bet hashechita as well as that the gid hanasheh was removed.) How could Yaakov go out alone at night, when the gemara says that a Talmid Chacham should not go out at night?

My answer is this: Where is this halacha derived from, if not this very incident! What if Yaakov tried to keep this halachah, and did not go out at night? Then, the incident would not have happened and the gemara could not have derived the halachah. In which case, Yaakov would not have known not to go alone out at night.

More than that, not going out alone at night would have created a temporal paradox which could have destroyed the entire universe! Therefore, Yaakov had no choice but to go out alone at night and subject himself to danger.

Eating a bit before megillah / maariv

Based on today's Shivti seder.

If you tell me something is assur, I want to see it in the gemara and Rishonim. Today's discussion was about snacking a bit, as opposed to eating a full meal, and how it was prohibited. I was not convinced, based on the presentation, that such a prohibition exists.

The first focus was on the first Mishna in Berachot and on the ensuing gemara on 4a-b. The Mishna set out the time for keriat Shema at night, with the Chachamim saying until midnight, and Rabban Gamliel teaching that the time is really until dawn, and even that the Chachamim who say until midnight said so as a fence.

The gemara on 4a-b elaborates on the nature of this fence by citing a brayta:

והא דקא אמרי עד חצות כדי להרחיק את האדם מן העבירה 

כדתניא חכמים עשו סייג לדבריהם כדי שלא יהא אדם בא מן השדה בערב ואומר אלך לביתי ואוכל קימעא ואשתה קימעא ואישן קימעא ואחר כך אקרא קריאת שמע ואתפלל וחוטפתו שינה ונמצא ישן כל הלילה אבל אדם בא מן השדה בערב נכנס לבית הכנסת אם רגיל לקרות קורא ואם רגיל לשנות שונה וקורא קריאת שמע ומתפלל ואוכל פתו ומברך

and the fact that they say until midnight is in order to distance a person from transgression. 

As it was taught in a baraita, the Rabbis created a “fence” for their pronouncements with regard to the recitation of Shema in order to prevent a situation where a person comes home from the field in the evening, tired from his day’s work, and knowing that he is permitted to recite Shema until dawn says to himself: I will go home, eat a little, drink a little, sleep a little and then I will recite Shemaand recite the evening prayer. In the meantime, he is overcome by sleep and ends up sleeping all night. However, since one is concerned lest he fall asleep and fail to wake up before midnight in order to recite Shema at the appropriate time, he will come from the field in the evening, enter the synagogue, and until it is time to pray, he will immerse himself in Torah. If he is accustomed to reading the Bible, he reads. If he is accustomed to learning mishnayot, a more advanced level of study, he learns. And then he recites Shema and praysas he should. When he arrives home, he eats his meal with a contented heart and recites a blessing.

While the maggid shiur presented this as a separate fence / gezeira from that of the Mishna, I think that the plain meaning of the gemara is that this is the exact same fence. As Rashi writes ad loc.,

מן העבירה - שמא יסמוך על שהות שיש לו כדתניא:

That is, Rashi explains that the Chachamim setting midnight as the end time is to distance a person from sin, for one will rely on the fact that he has time, as is written in the ensuing brayta.

If so, the fact that someone will procrastinate and eat a bit, drink a bit, nap a bit, and so on, are not new and individual prohibitions, but rather explaining what will happen if the person thinks he has time. As per Rashi, the brayta is expanding on the fence of the Mishna and saying what will happen. And by saying (and misleading? decreeing?) instead that there is a closer time, this will influence people to go to shul, learn, say Shema, daven, and only then eat a meal.

That does not indicate that the bit of eating is itself forbidden.

The source presented (in Shivti) that it was in fact forbidden was the top Tosafot on the daf:

וקורא קריאת שמע ומתפלל - מכאן משמע שמשעה שהגיע זמן קריאת שמע של לילה שאין לו לאכול סעודה עד שיקרא ק"ש ויתפלל ערבית:

But, as we noted immediately, Tosafot said le'echol seudah, to eat a meal until he reads Shema and prays Maariv. This is not necessarily the same as the ochel kim`a, eating a little bit, of earlier in the gemara.

Further, we should pay attention to the dibur hamatchil. What part of the gemara are Tosafot commenting upon when they say mikaan mashma? It seems like it is the end of the brayta, that the effect will be that someone will end up first saying Shema, then praying Maariv, and only then eating a meal. (And see the iba'it eima of the gemara that this is according to the position that davening Maariv is not something optional.) That is, it is going on ואוכל פתו, rather than the earlier ואוכל קימעא. I don't think you can derive from here a prohibition on snacking a bit. And the prohibition on a full meal is fully in line with the prohibition we saw in masechet Shabbat, about eating (a full meal) prior to keriat Shema.

I am not the only one to read closely like this. Look at the Rosh on this gemara.

When citing the gemara, he omits the final words ve'ochel pito umevarech. On the spot (note ס), we have Maadanei Yom Tov who comments:

That is, that the Rosh omitted these final words. But Tosafot were medakdek on those very words that one should not eat a meal until he read Shema and prayed. And even the Rosh agrees to this, except that here he is going after the girsa of the Rif.

We can see the words of the Rif here, and I get the same sense, that there is no innovated prohibition of eating a bit, but rather the one gezeira we are speaking of is the time of midnight:

However, this that Rabban Gamliel said {that you can say the entire night} and this that R Shimon ben Yochai said {that the night one you can fulfill right before either dawn or sunrise} is bedieved - after the fact - and even if you did so willfully {bemeizid} and read keriat Shema before dawn you will have fulfilled your obligation, even though you are not permitted to do this, for we learnt in a brayta {Berachot 4b}:

The Sages made a fence to their words in order that a man should not come from the field in the evening and say 'I will eat a bit, drink a bit, and sleep a bit, and afterwards I will read Shema and pray' and if sleep snatches him he will have slept the entire night; but rather a man should come from the field and go to the house of gathering {shul} or the house of study - if he is used to reading {Scripture} he should read, and if he is used to learning he should learn - and afterwards read the Shema and pray. And all who violate the words of the Sages is liable the death penalty.

You are not permitted to delay until after Chatzos, and the brayta is brought for elaboration. I see no indication that prohibiting eating a bit, in and of itself, was a decree from Chazal.

So too, in the Tosafot HaRosh, he says the same thing as Tosafot, that one should not begin the seudah. And I took pains to point out during the shiur that we have to pay careful attention to the dibbur hamatchil, which in this case is explicit that it includes ואוכל פתו ומברך.

I don't think that Rashi on the daf, defining terms, is a clear-cut introduction of a prohibition. He writes:

קימעא - מעט:

We should not produce from here a machlokes between Rashi and Tosafot as to what is being prohibited. Even Tosafot know what the word kimi`ah means. They aren't arguing a definition in terms. Rather, Tosafot don't see any prohibition here, just and explanation of the procrastination that the person will do. And Rashi can agree with this as well, that this is an explanation of what the person will say and do as he procrastinates, if he thinks he will have time. It is just that, entirely separate from this, Tosafot and Rosh look at other words at the end and derive a prohibition on starting an entire meal, even before Maariv.

Maybe we can see such a decree in the words of the Rambam, though.In Hilchot Tefillah 6:7, we have:

ז  אַף עַל פִּי שֶׁתְּפִלַּת הָעֶרֶב רְשׁוּת, לֹא יָבוֹא אָדָם מִמְּלַאכְתּוֹ וְיֹאמַר, אֹכַל מְעַט וְאֶשְׁתֶה מְעַט וְאִישַׁן קִמְעָה, וְאַחַר כָּךְ אֶתְפַּלַּל--שֶׁמֶּא תֶּאֱנֹס אוֹתוֹ שִׁינָה, וְנִמְצָא יָשֵׁן כָּל הַלַּיְלָה; אֵלָא מִתְפַּלֵּל עַרְבִּית, וְאַחַר כָּךְ אוֹכֵל וְשׁוֹתֶה אוֹ יִישַׁן.  וּמֻתָּר לְהִסְתַּפַּר וּלְהִכָּנֵס לַמֶּרְחֵץ, סָמוּךְ לַשַּׁחְרִית, מִפְּנֵי שֶׁלֹּא גָזְרוּ אֵלָא סָמוּךְ לַמִּנְחָה שְׁהוּא דָּבָר הַמָּצוּי, שֶׁרֹב הָעָם נִכְנָסִין בַּיּוֹם; אֲבָל בַּשַּׁחַר, דָּבָר שְׁאֵינוּ מָצוּי, לֹא גָזְרוּ בּוֹ.

However, I don't think that even this needs to be a prohibition. The brayta was explaining the reason for the gezeira of until midnight, because they feared people would do this. They were thus coralling people away from falling into this trap. And the implication is that, totally separate from this, it makes sense that one should not fall into this trap. There is the correct hanhagah, and that is what one should follow, and that is why Rambam encodes it.

Even so, I would not say that this is a gezeira, and that this is an issur deRabbanan.

The result of all of this is that I don't think that it is correct to turn around and (like the Terumas HaDashen), in places of need, such as hearing a late Megillah reading after a long fast (which Chazal would have not have held of, since it is Yom Nikanor), that there is a gezeira that one cannot nibble on something.

That is my reading of the sources, though various Acharonim apparently read this differently.


Update: Here is a lengthy Artscroll footnote on the subject, which shows how others read differently. Bli neder, I will address in a follow-up post. Note that it is Rif (as explained by the Rashba) rather than just plain Rif. The Rashba is here and the (later, meaning siman 9) Rosh is here. And Avot deRabbi Natan, illustrating how the phrase asa seyag lidvarav is used as an expression of overstating one's opinion to be more stringent than the actual law, is here.

chamar medina, via Shivti

This morning, I attended a very interesting program at Beth Aaron with my son -- Shivta. Great egg salad and tuna, and a nice topic, namely chamar medina. First there was a chabura with the assistant rabbi, Rabbi Gabbai, and then a shiur continuing on from there by Rabbi Willig.

The presentation of Shivti in their pamphlet is a bit more elaborate than your typical shiur source sheet. The typical source sheet will have either (literal) cutouts from various gemaras and rishonim so that you see the tzuras hadaf or standard printed text from Bar Ilan. This is a combination, so that each full page is a source, in the original. So we will see the gemara in Pesachim 107a, together with Rashbam and Tosafot, in the full tzuras hadaf, with shading for what they deem the relevant material. And on the bottom, in plain printed text, just the excerpted material.

The order of presentation is also nice. It is chronological, so we start with the relevant gemara and meforshim on the daf, then on to Rosh, Rif, Rambam, and then Tur, Shulchan Aruch, and Mishnah Berurah. A few others in between. The result is that you get to see the development of the ideas and how it is fleshed out or derived from the original sources.

Rabbi Willig presented his take on the sugya and his halachic position that, nowadays, it is impossible to justify using beer or whiskey for kiddush on Shabbat morning. I cannot do it justice, so don't rely on my presentation for an accurate representation of his position. But it can only be used as a substitute (according to Rashbam) where wine or grape juice is not readily available. And according to the Rosh who cites the Rashbam and also says:

ויש מפרשים דחמר מדינה היינו עיר שאין יין גדל בתחום אותנ העיר עד כדי מהלך יום סביב לעיר

that the unavailability (due to what is grown) has to be one of a day's journey around the city limits. And meanwhile, today with airplanes, the entire world is within a day's journey. Also, whiskey and beer are very low on the list, in terms of beverages Americans drink. Water comes first, then soda, then coffee, then beer, and finally milk (maybe among kids).

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My thoughts on the matter. First, as an aside, in terms of growing, it is certainly not that they did not have wine transportation back in those days. One can certainly point to gemaras of people who went into business to purchase wine in a certain locale, and then the wine prices went down or up.

In terms of understanding the Rashbam, he did not invent of whole cloth this idea of no accessible wine in that city. He gets it from the story in Pesachim 107, that the first time Ameimar came to town, he did not make havdalah on the date beer, and went to bed hungry. And the next day they made efforts and were able to bring him wine, at which point he made havdalah and tasted something. So Rashbam is looking to the unavailability as a requirement, even while other Rishonim might argue.

So too, the position some held, cited by the Rosh, of the unavailability within a day's journey, is also not surprising and without clear basis. Rather, it appears to be a clear outgrowth of the same story, that they only managed to fetch it the next day.

What about today, where every place is accessible? As Thomas Friedman wrote, The World Is Flat, and every place is accessible? I don't think that this matters a whit. Are we concerned here with lechatchila vs. bedieved, such that the only allowance to use this is where you couldn't access the wine? That is one way of looking at it, but the other is that, in terms of respectability of the beverage, this is the equivalent of wine. Where they don't grow wine in that region, and where they typically use this instead of wine, it has the chashivus of wine. That the word is more accessible and one could go further in less time does not change this from being the regular regional drink.

When Ameimar came the second time and they brought him date beer, maybe it made it clear to him that wine was not accessible in the region. Or maybe the repeating bringing for havdalah made it clear to him that they treated it as a respectable drink.

In terms of water (or soda, or coffee) being intermediately popular before whiskey or beer as national drinks, this may indeed differ by region. I would imagine there are areas of the country (like New York) that prefer their Starbucks lattes, and other, rural areas of the country that prefer their beer. Or even neighborhoods in New York.

But see Rashbam (ad loc, in fact same d.h. as before), who also says that water does not count as chamar medina. He says this in the sense that you can't use it as such, even, as he says, in the absence of wine and beer. But I would say that water also doesn't count in chashivus even to disqualify. It should be considered kemi she'eino. Among intoxicating drinks that people treat in the equivalence class of wine, beer is actually more widely consumed than wine. And who cares about water, soda or milk?

So for those who do make kiddush on chamar medina on Shabbos morning, I think there is a way to read through the sources in their defense. (I personally use wine or grape juice, because I can't really stand whiskey or beer.)