Permitted Rulings

The Gemora (Daf Yomi: Gittin 41b) had stated, applying the classic principle that it is preferable to render a permissible ruling. Rashi in Beitzah (2b) explains that this means that something that is permitted indicates that the Tanna is relying on his knowledge of the subject matter, and is not afraid to rule leniently. One can be strict even if he is in doubt and it does not necessarily indicate the conclusiveness of the ruling.

Rashbam in Pesachim (102a) writes that if there is no compelling logic to rule stringently, then ruling leniently is not regarded as a more preferred option. Rather, it is the only option. The Rema in his responsa (§ 54) rules that one is not allowed to be stringent regarding an issue where there is no uncertainty.

Pischei Teshuvah (Yoreh Deah 116:10) cites a dispute amongst the Acharonim if one is permitted to be stringent for himself regarding a matter that has been permitted by the Torah, such as a prohibited matter that was nullified.

Bnei Yissachar writes that it is a mitzvah not to be stringent in such a situation.

The Tzlach writes that it is preferable to record the permitted ruling regarding a situation that may be subject to a Biblical prohibition, because if there would be uncertainty, we would be compelled to rule stringently. The Tanna would not be introducing a novel ruling if the ruling was that the matter is prohibited. Regarding a matter that may be subject to a Rabbinic prohibition, however, the reverse would be true. It is preferable to record the stringent ruling because if there would be uncertainty, we would rule leniently.

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Decree when the reason no longer applies

Tosfos (Daf Yomi: Gittin 18a) asks: One of the reasons mentioned for the decree that the date should be recorded on a get is because perhaps the husband will want to save his niece from capital punishment if she committed adultery. Nowadays, Tosfos asks, when we do not execute anyone, why is there still a necessity to write the date in the get?

The Avnei Neizer (E”H: 188) cites a challenge to Tosfos’ question: Although the reason may not be applicable, the sages’ decree should still apply unless a greater Beis Din comes and nullifies it!

He answers that Tosfos understood that the initial decree was only established in a time and a place where they administered capital punishment. Accordingly, if nowadays, it is universal that we do not execute anyone, we are not nullifying the decree; rather, the enactment was never instituted for such cases. This is why it is not necessary for another Beis Din to annul the initial decree.

This would be comparable to that which Tosfos in Beitzah (6a) states: Tosfos writes that a matter that was only prohibited because of a specific concern will be permitted when the concern no longer exists. This principle justifies why we do not have to be concerned for water that was exposed at night and one is allowed to drink from it because in modern times snakes are not frequent in our homes.

The Gemora (Beitzah 30a) cites a Mishna that states that one is not allowed to clap or dance on Shabbos or Yom Tov. Rashi explains that the reason that one is prohibited from performing any of these actions is because they can lead to one fixing musical instruments. Tosfos states that this prohibition only applied in those days when they were experts in fashioning musical instruments. Presently, however, the decree does not apply, because we do not know how to fashion these instruments.

The Rema (O.C. 339:3) rules in accordance with Tosfos. Teshuvos HaRema (125) writes that there was an incident where a marriage occurred on Friday night and the people were not concerned that the groom would write the kesuvah, marriage contract on Shabbos. The reason for this permit was because it is not common in our times for the groom to write his own kesuvah.

Rav Shlomo Zalman Auerbach zt”l poses an interesting question. The halacha is that presently we do not have a legally qualified reshus harabim and for this reason one would be permitted to walk in a public thoroughfare on Shabbos while wearing various ornaments. According to this ruling, then, why are we still forbidden to blow shofar, shake a lulav and read the Megillah. Regarding these mitzvos there is a concern that one may come to carry the shofar, lulav or Megillah in the reshus harabim. Yet, the halachah is that our public thoroughfares are not deemed to be a legal reshus harabim, so we should no longer have these concerns.

Reb Shlomo Zalman also questions the opinion of the Raavad who maintains that muktzah is forbidden on account of a rabbinical decree that one should not come to carry into a reshus harabim. Why should this decree still apply when there is no longer a legally qualified reshus harabim?

Rav Shlomo Zalman explains that Tosfos is only referring to musical instruments. In previous times, everyone was capable of playing and repairing musical instruments. For this reason there was a decree prohibiting clapping and dancing. In our times, however, only a minority of people is capable of fixing musical instruments and because it is uncommon for people to fix musical instruments, there is no necessity for the decree against clapping and dancing.

Rabbah (Beitzah 5a) maintained that Rabban Yochanan Ben Zakkai rescinded the prohibition against accepting witnesses after the offering of the afternoon tamid sacrifice, and subsequently an egg that was laid on the first day of Rosh HaShanah was permitted to be eaten on the second day. Rav Yosef challenged Rabbah’s ruling because if the Chachamim assembled to render a ruling, they would need to reassemble to revoke their ruling. Rav Yosef added that one could not say that Rabban Yochanan Ben Zakkai convened with his colleagues to permit one to eat the egg, because their decision was only to accept the testimony after the offering of the afternoon tamid sacrifice, but they never took a vote on permitting the egg to be eaten.

Tosfos HaRosh in Avodah Zara (2a) rules that one is permitted to conduct business with gentiles during their holiday season as initially this was prohibited because gentiles in the past worshipped idols and now that gentiles do not worship idols, the decree is irrelevant.

Tosfos in Brachos (53b) writes that people are not scrupulous regarding mayim acharonim, washing the hands at the end of a meal, because we no longer have melach sedomis, salt from Sodom. Tosfos notes that although the practice of washing mayim achronmim was instituted by an assembly of a Bais Din, this institution was not unanimously accepted and thus this institution is not categorized as a ruling that is irrevocable unless a Bais Din reassembles and rescinds the ruling.

Reb Shlomo Kluger in Elef Lecho Shlomo (116) rules that one is permitted to learn by candlelight on Shabbos and we are not concerned that he may come to move the wick which will cause the fire to burn brighter, thus violating a biblical prohibition, because one does not need to move the wick of our present-day candles.

Teshuvos HaRosh (klal 2:8) rules that one is permitted to tie strings of linen on a four-cornered garment that is made from linen to fulfill the mitzvah of tzitzis and we are not concerned that one might tie strings of wool to the garment. The reason for this ruling is because all know that techeiles, a blue-dyed wool used for tzitzis, is not prevalent, thus there is no permit to tie strings of wool to a linen garment.

Teshuvos HaRosh writes that if is common knowledge why a decree was instituted and the rationale no longer applies, then the decree is considered irrelevant. Teshuvos HaRosh draws a contrast of this supposition to the case in our Gemora regarding the egg that was laid on the first day of Rosh HaShanah, because some people are not aware whey the egg was initially prohibited, nor do they understand why the reason to prohibit no longer applies.

Shearim Mitzuyanim B’Halachah rules that if necessary, one is permitted to take medicine on Shabbos. Taking medicine on Shabbos was initially forbidden as there was a concern that one would violate the prohibition of grinding. Now that medicine is prepared by the manufacturer and most people are not even aware of the process involved in manufacturing the medicine, there is no longer a concern that one who wishes to take medicine will violate the Shabbos prohibition of grinding herbs or spices.

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Pigs in the Future

(Nedarim 59a) The Rishonim disagree regarding a food item that the Gemora is uncertain if it is forbidden or not and it remains unresolved. The inquiry will remain in that state until Eliyahu Hanavi clarifies it for us. The Ohr Zarua maintains that this is regarded as “something which can become permitted,” since there is a possibility that Eliyahu will say that it is permitted. The Rashba (Beitzah 4a) disagrees and he explains: If Eliyahu will decide that the food is forbidden, it will emerge that this item will never be permitted. If he will rule that it is permitted, it actually was never forbidden. Either way, he argues, it cannot be labeled as “something which can become permitted.” The Bach cites a Mordechai that it is not considered “something which can become permitted,” for by the time Eliyahu will permit it, the food will be already ruined.

The Chasam Sofer cites the following question from the Rav in Frankfurt: Chazal write that a pig is called a “chazir,” for in the future, Hashem will reverse the prohibition of the pig and it will be permitted. If so, according to those Rishonim, pig should be regarded as “something which can become permitted”?

The Chasam Sofer answers based upon that which was written in the Toldos Yitzchak: The Torah forbids animals that do not have split hooves, or those that do not chew their cud because those animals are naturally conceited; they trample with their feet and they have a poison inside of them, which is extremely dangerous for a Jew to eat. The animals that do not digest their food easily and they are compelled to chew their cud; those animals are permitted to eat.

If so, explains the Chasam Sofer, there will be no change in halacha regarding the pig. It was forbidden and will remain forbidden. Rather, Hashem will change the nature of the pig and it will begin to chew its cud. That is why it will be permitted then. Accordingly, the only pigs that will be permitted then, are those that will be born after this change occurs; however, the pigs that were in existence prior to that will remain forbidden. This is why a pig is not classified as “something which can become permitted.”

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