Reb Meir Simcha in the Rambam Hilchos Mamrim asks the following question. The Rambam defines one of the cases of Bal Tosif as one who presents a din Derabanan as if it were a De’oraysa. He asks, if so, how do we understand the endless drashos in the Sifri and the Torah Kohanim that are presented as De’oraysas and are really asmachtos, i.e., Derabanan?
And what about the many Gemoros that discuss drashos as if they were de’oraysa, and ask many kashes, and end up saying “ello derabanan ukra asmachta be’alma.” This indicates that the din was passed off as a de’orayso until it was demonstrated that it was only a derabanan! This should be Bal Tosif!
(I would think that the answer is that when the drasha was given, it was stated that it was derabanan, like the Ritva in Eiruvin, and that caveat was forgotten. But Reb Meir Simcha apparently holds that this is not mistavra, because if it were presented as a derabanan, what was the point of hanging it on a drasha, if not to scare people into believing it was really a de’oraysa.)
So he answers with a remarkable chiddush: there are two kinds of drashos. One is gufei Torah, and one is a drasha gemura, but it’s not as chamur as gufei Torah. To claim that a drasha is gufei Torah is Bal Tosif. To claim that a drasha is a drasha gemura but not gufei Torah, even if you say that it is a de’oraysa and it’s really not, is not Bal Tosif. Exactly how the categorization is made is unclear.
It seems to me that Rashi in Yevomos towards the beginning of Ha’isha, on 90b, addresses this in the context of the afke’inhu rabbanan le’kiddushin minei sugya, and Rashi says it is 100% wrong, and there is no difference between a be’feirushe possuk and a drasha like kiddushei kesef.
See also the Brisker Rov in Megillas Esther where he explains why Ploni was worried that a later beis din could overturn the ruling that was mattir Rus and his children would be passeled. He says that even a drasha of the yud gimmel middos can be overturned by a later beis din. He brings that the Rambam in Mamrim 1:4 says that the double lashon in Lo Sosur of mishpat asher yomru and davar asher yagidu refer to drashos based on yud gimmel middos and kabbalah ish mipi ish, and the difference is that the former can be overturned while the latter cannot.
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8 comments:
It's wonderful to read a blog where the baalim throw out "the Ritva in Eiruvin" and expect the gentle reader to immediately grasp which particular Ritva is meant.
I refer you to another Ritva, which might resolve the issue you raised, at least in part. The one in Rosh Hashana.
For those who minds may not immediately swoop down upon the specific mar'eh makom, that's Rosh Hashana 16a, on the inyan of asmachata.
Also, you might be interested in what Rav Soloveichik, the Bostoner Rav, ZT"L has to say in Shiurim l'Zecher Nishmas Aba Mori 1:241 on the two type of Mesora. He presents a very expansive analysis of the Rambam in Mamrim, with a tremendous chiddush on the expression "halacha l'Moshe miSinai."
I'm glad you put in the caveat "at least in part." It's fort a derabanan, and the retzon Hashem that we come up with it doesn't make it a deoraysa any more than lo sasur makes them into de'oraysas.
I've found that when I talk in learning with big talmidei chachomim, I seem to be a lot smarter, because they make my little glimmers into big fireworks. I'm glad you're enjoying my he'oros.
Actually, the implication of the Ritva, as I was mekabel from my Rabai'im, is that it is a de'oraysa, except that it is contingent on the Rabbanan invoking it. This is analogous to melacha on Chol HaMoed being de'oraysa, where melacha is defined at the discretion of ChaZaL.
OK, I hear your teretz: the din of Bal Tosif has nothing to do with the degree of chumra, it simply requires that we make clear the difference between derabanans and deoraysas. So according to the Ritva, since asmachtas are merumaz in the Torah, and although the whole point of not writing them befeirush is so they will not be so chamur, they can be called deoraysa, although they are intentionally limited deoraysas.
Not only that they not be so chamur: but rather they are to be invoked by ChaZaL if and when necessary - over and above Lo Sasur.
Are you going to do a Post on Reb Yoel's Yahrtzeit?
>>>But Reb Meir Simcha apparently holds that this is not mistavra, because if it were presented as a derabanan, what was the point of hanging it on a drasha
It is mashma from the Ra'avad in
Mamrim 2 that an asmachta is stronger than a regular din derabbanan (I think the PM"G also has such an idea in the Pesicha haKolleles). If such a sevara works, then there is a good reason to create asmachtos - they are categorically different than regular derabbanans without the smach.
I'm going to have to check out the PMG and the Raavad in Mamrim. I'll try to get a hold of RYB's sefer also, bl'n.
Thanks for the mar'ei makom. But I don't think the melachos of chol hamo'eid are the same at all, since the loshon there is that the Torah left it to Chazal to decide what is and what is not a melacha. To expand that to all asmachtos is a stretch.
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