[Avodah] . paskening from old/new infformation

[Ezra Chwat]

To: Harvey Benton harvw613 at yahoo.com<mailto:harvw613 at yahoo.com> Fri, 29 Jun 2012 11:58:28 -0700 (PDT)



"do we ever pasken from a beraita not in the mishna gemmarra (eg,

tosefta??)"



why would the authority of the Tosefta be any less than that of the Talmud Yerushalmi?

Similar to the usage of Yerushalmi, The Rif will often cite Tosefta as a supplement, providing a Halakha not dealt with explicitly in the Gmara (I counted 19 such cases), or at least as a source to clarify ambiguity in the Gmara (9 of these).

The Rishonim often use the Tosefta as a backup for a new pshat in gmara. This could happen even if the trend of the sugya is leaning otherwise (E.G Ramban Ktuvot 51b).



An extreme example of the relying on an extra-Talmudic source, even an obscure one, is the usage of Masekhet Soferim for numerous European minhagim, sometimes even against the Talmudic or Gaonic Halakha. See Tosfot Brakhot 18a; Sefer Hayashar, Tshuvot p. 81; Ramban in Hidushe R. David and RM Hlawa Psahim 117b; Hamahkim (Krakow 1909) p. 7; many more examples collect by Higger , intro to Soferim , 1937, p. 70



      "which would open up the door to findinng a set of dead sea set of scrolls/egypt geniza set of sefarim, which would contain heretofore, unknown sets of literature/commentary??"



The door is wide open: On revision of  psak based on newly-found sources, unavailable to previous poskim: RMA, HM 25:2, (no reason to believe Maran Hamhaber disagrees).

On revision based on newly found nusach of known sources: RMM Kasher, Noam 16 (1973) p. 165-.




Dr. Ezra Chwat
The Department of Manuscripts/
National Library of Israel
blog: Giluy Milta B'Alma: http://imhm.blogspot.com




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