[Avodah] Street Minyanim/sh'as hadchak

[Chana Luntz]

On 17/5/20 8:15 pm, Akiva Miller via Avodah wrote:

> 

>> That's not my understanding. To me,?even when we are accustomed to 

>> accommodating the stricter opinions, we can follow the ikar hadin when 

>> the stricter views are merely inconvenient or difficult. You don't 

>> need a "no alternative" situation to justify following the ikar hadin. 

.> Why on earth *would* you?

> 

>> Let's focus on the phrase "Kedai hu lismoch alav bish'as had'chak." In 

>> particular, the words "kedai hu". It seems clear to me that this 

>> refers to an individual, i.e., a daas yachid, but one of sufficient 

>> stature that he can be relied upon bish'as had'chak. Why on earth 

>> would we need to rely on this individual if his views were that of the
ikar hadin?

>> Rather, when the ikar hadin puts you in a "no alternative" situation,

>> *that's* when one might fall back on a minority opinion.

 

And RZS replied:

 

>I think we are simply working from different definitions of the term "ikar
hadin".  

>By that term I mean that when you get right down to it the halacha allows
us 

>to follow this opinion, but since there are so many who disagree

> with it we shouldn't unless there is no alternative. 

>The stronger the opposition to it, the more we should avoid relying on it,

> and thus the narrower the circumstances in which we consider ourselves

> to have no alternative.  

>But if the bedrock halacha says "no, this shita is rejected and cannot be
relied on"

> then lack of alternative can't change that to a "yes".

 

But if you look at the halachos of sh'as hadchak, I think it is clear that
these are cases where the bedrock halacha says no, this shita is rejected
and cannot be relied upon, and yet, in a sha'as hadchak it can.

 

Here are the cases in the gemara of sh'as hadchak that I could find:

 

a)      The one that comes up most often and seems the most classic is
mentioned in Eruvin 46a and Nida 6a-b and 9b.  In that case there was a
preparedness to rely on the position of Rabbi Eliezer (as against the
Rabanan) in a sh'as hadchak as to how far back one should look to considered
foodstuffs taameh if touched by someone ta'ameh in certain specific
circumstances. Generally the Rabanan held that it was necessary to go back
twenty four hours (m'eis l'eis)(rabbinically) in these circumstances and
Rabbi Eliezer held that it was only from the time the tumah was detected
(daya shayta).  On Nida 9b it asks what the sh'as hadchak was and answers
that some say it was a time of famine, and others that the girl in question
had prepared a lot of taharos (ie big monetary loss if rendered tameh).
Rashi brings the time of famine as the sh'as hadchak on Nida 6a-b too, while
Tosfos says it can't be that (as that is given on daf 9b), and postulates
that it was either because Rebbi initially ruled in accordance with Rabbi
Eliezer, before he realised that this was not the halacha and in the
meantime a lot more taharos were contaminated, or alternatively that the
person to whom he had ruled had already gone, and getting him back to give
him the correct answer was majorly difficult;

 

b)      Relying on Rabbi Shimon regarding muktzah (moving of an extinguished
Chanukah candleholder) b'shas hadchak. Rashi says the sh'as hadchak is
sakana, but presumably it was not a pikuach nefesh sakana, as that wouldn't
need to be said.

 

c)       Chulin 107a - washing your hands in the morning and stipulating it
covers all washing the whole day.  The sh'as hadchak being the scarcity of
water.

 

d)      Gitten 18b-19a - relying on Rabbi Shimon's position regarding
certain signature rules for witnesses in a sh'as hadchak.  The sh'as hadchak
according to Rashi was that either the relevant person had already gone on
his way (so presumably, as per Tosfos, it was difficult to get hold of him
again) or the woman had already gone and gotten married in reliance on this
get;

 

e)      Brachos 9a - where a couple of rabbinical students got drunk and
fell asleep and missed krias shema until after amud hashachar,  with the
answer that they could rely on Rabbi Shimon to say it as it was a sh'as
hadchak.  This one sounds a lot like a bideved.

 

f)       Sukkah 31a-b (this is actually bringing a tosefta)- that it is
permitted to use a dried esrog (following Rabbi Yehuda) b'shas hadchak, but
not an a quince or pomegranate. And the gemora there asks - isn't it obvious
that you can't use a pomegranate or a quince (it is not as though Rabbi
Yehuda even suggested that you could!) and it answers, somewhat mysteriously
(IMHO) what is the hava mina, that the torah of Etrog might be forgotten.
So then why should one not use a quince or a pomegranate?  Answer because
people might not understand that this is a sh'as hadchak and hand over a
tradition to davka use a quince or pomegranate.  In any event, the gemora
brings a ma'aseh that those in the cities used to bequeath their (dry)
lulavim to their children, and doesn't this prove that Rabbi Yehuda was
right, and it was answered that you can't bring a proof from a sh'as
hadchak.

 

Sh'as hadchak comes up a lot in the wider sources, there are dozens of
references in the Shulchan Aruch alone, so it is hard to pull together some
general principles (at least for cases where there is not financial hefsed
meruba).  The Pitchei Teshuva Even HaEzer siman 169 seems to suggest that a)
it needs to be a matter of dispute in relation to something rabbinic, not
from the Torah; b) it needs to be a b'dived situation; and c) not one that
can be fixed.  The case he was discussing there was where a yavam
deliberately stated during a chalitza that he was  not a lefty, so the
chalitza was done on the wrong leg. He apparently did so, so he could force
some sort of court case.  And the question was, could they rely on the SmaG
and the SmaK, against the majority, to say that it doesn't matter which leg
is used for chalitza, to validate this chalitza.  And the judgment was no,
because it was a matter of Torah law, and it wasn't as though she had
already gotten married in reliance on it, so it was a matter of fixing it by
persuading the yavam to redo it properly.  And he specifically says that a
wait of three or four months is not considered to be a sh'as hadchak.

 

But if the Pitchei Teshuva is right about it needing to be rabbinic (and the
Sdei Chemed (marechet kaf, klal 109- 113, seems to agree, and thinks this
can be derived from the gemora in Eruvin), then how do we explain the lulav
and Etrog, which on first day is from the Torah?  And maybe this idea about
not losing the "torah" of a mitzvah is an answer to that question, and that
is considered a form of sh'as hadchak, as discussed below.

 

In any event, our case of minyan is rabbinic, so that hurdle is crossed
(unless you fall into the bracha sheino tzricha is a violation of a d'orisa
camp).  But looking more closely at the cases where the consequences are not
loss of money, or opportunity to marry, or the like, but where the
fundamental loss appears to be a loss of mitzvah,  it is interesting to note
that the Shulchan Aruch in Orech Chaim siman 33 might be perhaps bringing
this idea  (ie the hava mina in the gemora, about not forgetting the torah
of the mitzvah) - when it says "And b' sh'as hadchak there is to rely on
those who permit, in order that he should not nullify the mitzvah of
tefillin" - even though the Taz and others makes it clear there that while
he can put the Halachically problematic tefillin on, he cannot bless on
them.  Similarly when discussing the actual case of the gemora (ie the four
species), the Shulchan Aruch in Orech Chaim siman 648 si'if 6 holds that "In
a sh'as hadchak that they do not find one that is kosher, we take all those
that are posul, and we do not bless". 

 

The Rema in contrast, however, brings those who do allow even blessing,
saying "there are those who render kosher a dry lulav, and even bless on it
and so we are accustomed to bless on dry lulavim, even when there are others
that are moist, but the rest of the species we are not accustomed so, and
there are those who are lenient even with a dry hadas, and there is to rely
on this in a sh'as hadchak, . and all this is for the matter of blessing on
it, but without a blessing he is able to take all the invalid ones, and not
bless on them."

 

Now it doesn't say in the case of the lulavim and esrogim that it is because
the torah of it might be forgotten (it might be that if you don't allow the
sh'as hadchak, people will spend a fortune trying to get hold of kosher
species, ie hefsed meruba), but it seems to me to be reasonably clear at
least from the discussion of the Rosh (Sukkah perek 3) on this that he holds
that the reason to allow is as a zecher for the real mitzvah, not out of
concern for what people will do if they  can't treat this as the mitzvah, as
he compares this to taking a quince or a pomegranate, where there is a risk
that the wrong tradition will be handed down. 

 

And for some sort of completeness, here is the Mishna Brura on this si'if
(siman 648 si'if katan 58): - "and the achronim agree to the law that in a
sh'as hadchak we are able to rely on the poskim who hold that with all the 4
species when they are dry we are able to bless on them.  And there is in
this 4 distinctions: if there are not found in the city moist ones just dry
ones then all of the four species may be taken and blessed.  If there is to
him completely dry and there is to others completely moist we bless davka on
the moist ones and even b'dieved he does not fulfil with the dry ones.  And
in lands where there are not found completely moist lulavim and hadassim,
and also the dry ones are not completely dry, it seems to me that we bless
on the dry ones that he has even l'chatchia and like that which is written
above.  And in a place that there are found by others completely moist ones
l'chatchila, it is possible to say that he should not bless on his dry ones
even if they are not completely dry, and bi'dieved when he blessed he should
take again the moist ones that are of others without a blessing."

 

Of course one major difference between the four species and other cases is
that the four species only happen once a year, and in places where they
struggle to get moist species, they are likely to struggle year on year, so
that there is much more of a risk of the torah of esrog being forgotten than
in cases of daily mitzvos, which is why the tefillin example is so
interesting.

 

But it seems much easier to say in the case of counting the katan in some
out of the way place where for years on end they might not have a minyan,
that there is a risk that the torah of minyan might be forgotten, than in
the case of porch minyanim, which nobody expects to need to operate for more
than a few months.  

 

But if it is not because the torah of minyanim will be forgotten, then what
is the sh'as hadchak? Which is why I came up with the list in my previous
post (Vol 38 issue 4).

 

Regards

 

Chana

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