[Avodah] Street Minyanim/sh'as hadchak

[Chana Luntz]

RMB writes:

<<On the side-subject of whether she'as hadechaq means that we go more
lenient than iqar hadin or pair off norms that go beyond the iqar hadin...
Note that we often are allowed to do beshe'as hadechaq something labeled
bedi'eved. This identification of she'as hadechaq as a kind of bedi'eved
appear to argue for the former interpretation.>>

I am not sure that RZS will agree. Presumably he will still say that the
ikar hadin is what we are prepared to posken bidieved.

<<Se R Mordechai Torczyner's collection of sources at
http://www.hamakor.org/metahala/dechak.htm>>

Copying RMT as I was surprised to see that he included the Sde Chemed
marchechet Get siman 29 si'if 6 (which discusses the question briefly), but
not where the Sde Chemed discusses it in more detail, which can be found in
marechet daled siman 61 (page 70) and marechet daled (pe'at hasede) klallim,
klal lamed (p139).  There the Sde Chemed quotes the following achronim as
holding that a sh'as hadchak is like a bideved:

a) the Shulchan Gavoha (in the klalim at the beginning of hilchot pesach
letter 71)
b) the Teferet Yisrael (perek 5 of peah mishna 2)
c) the Ma'amar Mordechai  siman 204 letter 7
[Those three he summarises in klal lamed and brings some of the sources they
rely on]  
In siman 61 the Sdei brings those three just as source references, but also
another source for the Tiferet Yisrael (sheviit 44), the Lev Chaim chelek 2
page 101c, the Avodat Moshe page 77c (he also refers to himself in a
different place in ma'arechet get - in siman 18 letter 4 as well as the one
quoted by RMT) Chaim v'Shalom chelek 2 siman 50 page 100c; Sharei Teshuva at
the beginning of 527 as well as the Shvut Ya'akov that RMT has.

And in klal Lamed the Sdei Chemed explains that he returns to the matter
because in some cases, people learn bideved from sh'as hadchak, and in
others sh'as hadchak from bideved, and so goes on to summarise these three.

Always find the Sde Chemed a great way to get into the achronim on these
kinds of points.


[Email #2]

In my previous post on this I quoted the Rashba (Shut HaRashba Chelek 1
siman 253):

<<"that we do not say it is appropriate to rely on ploni in a time when
there is one who is greater than him in wisdom and number.  And the halacha
pesuka
[CL: is this not the same as ikar hadin?] is that they go after the one
greatest in wisdom and number.  And even in a sh'as hadchak we do not rely
on the small one in wisdom or in number.  And so in a place of disagreement
between an individual and the many unless there is a sh'as hadchak that
there is in it a hefsed meruba or similar to this.  And like that which is
said in the first perek of Nida (9b) [CL This was one of the key sources I
brought regarding sh'as hadchak, see previous post]>>

And I wanted to add to this as I think it is instructive to look more
closely at this particular source (ie in Nida) when examining our question,
namely when we rely on a minority opinion in a sh'as hadchak, is it because
the halacha is really like that minority opinion, ie that is the ikar hadin
and it is just in a l'chatchila situation we are more stringent, and prefer
to follow others opinions as well, or is this a derogation from poskening
like the ikar hadin.

The reason I believe this particular gemora in Nida is particularly
instructive is because of the person on whom it is deemed to be  "fitting to
rely" in this case - namely Rabbi Eliezer.  And similarly in Shabbas 130b,
it was again Rabbi Eliezer on whom they ended up having to rely.  The case
is described there in Shabbas as follows:

"Rabbi Shimon ben Lekish said in the name of Rabbi Yehuda haNasi: Once they
forgot and did not bring the knife on the eve of Shabbas, and they brought
it on Shabbats, and the matter was very hard for the Chachamim, how could
they leave the words of the Chachamim and do like Rabbi Eliezer: Firstly,
because shamuti hu, and secondly because an individual and a many, the
halacha is like the many."

So, Rabbi Eliezer has two strikes against him.  One he was an individual
against the rabbim, and secondly "shamuti hu".

Now Rashi explains shamuti hu there on Shabbas 130b  "they excommunicated
him, as it says (in Baba Metzia 59b) [after the not in heaven incident], but
in the Talmud Yerushalmi it explains: shamuti hu - he was a student of
Shammai."  

And Tosphos comments (Nida 7b): - Rashi explains that they excommunicated
him, and this is questionable because generally they do not use the language
shemta [for excommunication] and the event itself in Hazahav (Baba Metzia
59b) they used the language "beracha" [to mean excommunication], and Rabbanu
Tam and the Rashbam explain that shamuti hu is that he was one of the
students of Beit Shammai, and so brings the Yerushalmi the first perek of
Trumot.

Now it is true that in Nida 7b Rav Yehuda rules that the halacha follows
Rabbi Eliezer in at least four matters, but clearly where they are only
relying on him in a sh'as hadchak is not considered one of them.  And so the
general principle (as per Shabbas 130b) is that the halacha is not like
Rabbi Eliezer.

So if you say that it is fitting to rely on Rabbi X b'sh'as hadchak means
that Rabbi X's position is really ikar hadin - then that would mean that,
according to the Yerushalmi and the various ba'alei Tosfos, the teachings of
Beis Shammai as articulated by Rabbi Eliezer, even thoughbeis shammai
bimkom beis Hillel aina mishna (Brachos 36b) can be characterised as the
ikar hadin.  Or alternatively (if you take Rashi's pshat) that the opinions
of Rabbi Eliezer are ikar hadin, even though we rule lo b'shamayim hi.

Both of which, at least to me, seem very difficult.

Regards
Chana