Shulchan Aruch: Difference between revisions

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# In general, if a community with Minhagim is removed from its location for whatever reason and another community (not just individuals) eventually takes its location, the second community maintains its own traditions and is not bound by the traditions of the original one.<ref>See Beur Halacha 468 s.v. Vechumrei HaMakom</ref> However, in Eretz Yisrael, where the Minhag has been like the Shulchan Aruch, the lack of current Sepharadic community following the Shulchan Aruch does not mean that the new Sepharadic communities to settle there are independent of its rulings, because '''the Sepharadic acceptance of Shulchan Aruch is not a function of Minhag HaMakom or Mara deAtra, which could be lost, but rather, acceptance on the community and all its descendants.''' Therefore, the communities moving to Eretz Yisrael are themselves communities that already live under the banner of Shulchan Aruch, as they have for centuries, and continue to do so. Of course, if they ''never'' accepted the Shulchan Aruch, that's a different story. With respect to the [[Rambam]], however, the acceptance ''was'' a function of Mara deAtra, so the acceptance is not binding on new communities. With the great Kibbutz Galuyot of the past century, it's worthwhile for all those gathering in Eretz Yisrael to accept Minhag Yerushalayim as a unifying force and avoid controversy in the commonly non-uniform communities that now exist.<ref>Rav Chaim David HaLevi (Shu"t Aseh Lecha Rav vol. 7 Siman 4) defending Rav Ovadia (Shu"t Yechave Da'at 1:12) against a question by Rav Avraham Sherman ([http://www.daat.ac.il/daat/kitveyet/niv/yesodot1-2.htm Niv HaMidrashia vol. 18-19 Iyyar 5745]). He continues to point out that the Chazon Ish's illustration (Zeraim, Sheviit 23:5) of the Minhag evolving from the following [[Rambam]], to the Shulchan Aruch, and then to Acharonim is only relevant to Ashkenazim, who dird not accept the Shulchan Aruch's rulings on themselves and their descendants, unlike the Sepharadim.</ref>
# In general, if a community with Minhagim is removed from its location for whatever reason and another community (not just individuals) eventually takes its location, the second community maintains its own traditions and is not bound by the traditions of the original one.<ref>See Beur Halacha 468 s.v. Vechumrei HaMakom</ref> However, in Eretz Yisrael, where the Minhag has been like the Shulchan Aruch, the lack of current Sepharadic community following the Shulchan Aruch does not mean that the new Sepharadic communities to settle there are independent of its rulings, because '''the Sepharadic acceptance of Shulchan Aruch is not a function of Minhag HaMakom or Mara deAtra, which could be lost, but rather, acceptance on the community and all its descendants.''' Therefore, the communities moving to Eretz Yisrael are themselves communities that already live under the banner of Shulchan Aruch, as they have for centuries, and continue to do so. Of course, if they ''never'' accepted the Shulchan Aruch, that's a different story. With respect to the [[Rambam]], however, the acceptance ''was'' a function of Mara deAtra, so the acceptance is not binding on new communities. With the great Kibbutz Galuyot of the past century, it's worthwhile for all those gathering in Eretz Yisrael to accept Minhag Yerushalayim as a unifying force and avoid controversy in the commonly non-uniform communities that now exist.<ref>Rav Chaim David HaLevi (Shu"t Aseh Lecha Rav vol. 7 Siman 4) defending Rav Ovadia (Shu"t Yechave Da'at 1:12) against a question by Rav Avraham Sherman ([http://www.daat.ac.il/daat/kitveyet/niv/yesodot1-2.htm Niv HaMidrashia vol. 18-19 Iyyar 5745]). He continues to point out that the Chazon Ish's illustration (Zeraim, Sheviit 23:5) of the Minhag evolving from the following [[Rambam]], to the Shulchan Aruch, and then to Acharonim is only relevant to Ashkenazim, who dird not accept the Shulchan Aruch's rulings on themselves and their descendants, unlike the Sepharadim.</ref>
# The first printing of Beit Yosef was such a success that Maran was unable to send Bedek HaBayit, his additions and revisions, to the printers in time for them to be included in the second printing, so it had to be printed as a separate sefer and then incorporated in later editions of Beit Yosef.<ref>Hakdama to Bedek HaBayit</ref>
# The first printing of Beit Yosef was such a success that Maran was unable to send Bedek HaBayit, his additions and revisions, to the printers in time for them to be included in the second printing, so it had to be printed as a separate sefer and then incorporated in later editions of Beit Yosef.<ref>Hakdama to Bedek HaBayit</ref>
# The [[Chida]] writes how Maran had the Neshama of R' Yehudah Bar Ilay, who was "Rosh HaMedabrim beChol Makom"<ref>Shabbat 33b</ref>. His ruling were accepted throughout Eretz Yisrael, Turkey, Syria, Iran, etc, but not with respect to monetary matters. According to him, one who follows the stringencies of the Rama in Eretz Yisrael need not be rebuked, but one who follows the leniencies should be. The Panim Meirot says that an Ashkenazi who keeps the leniencies of the Shulchan Aruch needs Teshuvah, and the Chida says a Yerei Hashem should keep the stringencies of both.<ref>Shem HaGedolim (Sefarim, Tet 11)</ref>
# The Acharonim debate whether one can employ a [[Safek Sefekah]] leHalacha when both other sides are against Maran. Rav Ovadia is lenient,<ref>Yabia Omer vol. 9 Yoreh Deah 6:4, because we accepted Maran BeTorat Safek, not Vaday</ref> but Rav Ben Tzion Abba Shaul is not.<ref>Shu"t Ohr LeTzion volume 2 page 12</ref>
# The Acharonim debate whether one can employ a [[Safek Sefekah]] leHalacha when both other sides are against Maran. Rav Ovadia is lenient,<ref>Yabia Omer vol. 9 Yoreh Deah 6:4, because we accepted Maran BeTorat Safek, not Vaday</ref> but Rav Ben Tzion Abba Shaul is not.<ref>Shu"t Ohr LeTzion volume 2 page 12</ref>


Revision as of 00:30, 2 December 2018

Overview

בית יוסף - הקדמה

ועלה בדעתי שאחר כל הדברים אפסוק הלכה ואכריע בין הסברות כי זהו התכלית להיות לנו תורה אחת ומשפט אחד. וראיתי שאם באנו לומר שנכריע דין בין הפוסקים בטענות וראיות תלמודיות הנה התוספות וחידושי הרמב"ן והרשב"א והר"ן ז"ל מלאים טענות וראיות לכל אחת מהדיעות. ומי זה אשר יערב לבו לגשת להוסיף טענות וראיות. ואיזהו אשר ימלאהו לבו להכניס ראשו בין ההרים הררי אל להכריע ביניהם על פי טענות וראיות לסתור מה שביררו הם או להכריע במה שלא הכריעו הם. כי בעונותינו הרבים קצר מצע שכלינו להבין דבריהם כל שכן להתחכם עליהם. ולא עוד אלא שאפילו היה אפשר לנו לדרוך דרך זה לא היה ראוי להחזיק בה לפי שהיא דרך ארוכה ביותר:

ולכן הסכמתי בדעתי כי להיות שלשת עמודי ההוראה אשר הבית בית ישראל נשען עליהם בהוראותיהם הלא המה הרי"ף והרמב"ם והרא"ש ז"ל אמרתי אל לבי שבמקום ששנים מהם מסכימים לדעת אחת נפסוק הלכה כמותם אם לא במקצת מקומות שכל חכמי ישראל או רובם חולקין על הדעת ההוא ולכן פשט המנהג בהיפך:

In his acclaimed introduction to the Beit Yosef, Rav Yosef Karo sets down his monumental rules of Pesak, to follow the three Amudei Horaah, the Rif, Rambam, and Rosh, upon whom the entire Jewish nation relies. We are simply incapable of decide for ourselves who is correct from among the dominating figures of the Rishonim. There exist a number of approaches to understanding the Beit Yosef's approach to Halacha and the extent to which it has been accepted among the Jewish people. Such discussions also appear regarding the acceptance of the Arizal's rulings. These are some basic approaches to elaborated on further below.[1]

Sepharadim

  1. Chacham Ovadia Yosef: The rulings of Shulchan Aruch have been accepted in any case, lenient or strict, even Lechatchilah. In a case of "Stam vaYesh," the Halacha follows the Stam unequivocally.[2]
  2. Chacham Ben Tzion Abba Shaul: The Shulchan Aruch's rulings are not absolute "BeTorat Vaday. Although he decides debates between the Rishonim, if one side was not completely rejected, the Shulchan Aruch will present the more correct one as "Stam" and the less correct but still significant view as a "Yesh Omrim" to recommend one be stringent if easily possible. If the "Yesh" is more lenient, then it's worthy of being included as an additional reason to be lenient in situations of need. This understanding resolves numerous contradictions in Shulchan Aruch and stringencies in Ben Ish Chai. Similarly, in a "Yesh veYesh" - two Yesh Omrims - the Halacha follows the latter, but the former was written for the above reasons. Essentially, the rulings of the Shulchan Aruch were accepted "BeTorat Safek;" therefore, one can better understand how Acharonim can rule stringently against the Shulchan Aruch in cases of Torah level prohibitions, such as by employing the principle of Safek Berachot leHakel Neged Maran.[3]
  3. Chacham Mordechai Eliyahu: The Ben Ish Chai unified Nigleh and Nistar, the rulings of Maran Rav Yosef Karo with those of the Zohar and Mekubalim, with the Arizal at their head, and he was accepted as the Posek Acharon.[4] One's role is to satisfy all opinions, not find lenient views to rely upon. Those are reserved for only dire circumstances.[5]

Ashkenazim

  1. The Ashkenazi custom is to follow the rulings of Rav Moshe Isserles, known as the Rama. In places where the Rama did not write glosses on Shulchan Aruch, Ashkenazim revert to following the positions of the Shulchan Aruch. The Rama[6] and Maharshal[7] admit to the magnificent work that is the Beit Yosef; they argue that the way opinions of the Baalei HaTosafot, Mordechai, etc. are weighted leaves their Minhagim in question.

Teimanim

  1. Peulat Tzaddik (Maharitz): Minhag is to follow Shulchan Aruch in general in addition to the stringent opinions of the Rambam.[8]
  2. Shtilei Zeitim[9] and Revid HaZahav[10]: Teimanim follow Shulchan Aruch completely, with a sprinkling of Minhagim like the Rama, but not the Rambam.[11]
  3. Rav Yosef Kapach: The custom in Teiman was to follow the Rambam almost exclusively.[12]

Acceptance of Shulchan Aruch

  1. The Chida teaches that the holiness of the Tur and Rav Yosef Karo's Neshamot merited that they should be the first steps of every Posek's decision making.[13]

Sepharadim

  1. In general, if a community with Minhagim is removed from its location for whatever reason and another community (not just individuals) eventually takes its location, the second community maintains its own traditions and is not bound by the traditions of the original one.[14] However, in Eretz Yisrael, where the Minhag has been like the Shulchan Aruch, the lack of current Sepharadic community following the Shulchan Aruch does not mean that the new Sepharadic communities to settle there are independent of its rulings, because the Sepharadic acceptance of Shulchan Aruch is not a function of Minhag HaMakom or Mara deAtra, which could be lost, but rather, acceptance on the community and all its descendants. Therefore, the communities moving to Eretz Yisrael are themselves communities that already live under the banner of Shulchan Aruch, as they have for centuries, and continue to do so. Of course, if they never accepted the Shulchan Aruch, that's a different story. With respect to the Rambam, however, the acceptance was a function of Mara deAtra, so the acceptance is not binding on new communities. With the great Kibbutz Galuyot of the past century, it's worthwhile for all those gathering in Eretz Yisrael to accept Minhag Yerushalayim as a unifying force and avoid controversy in the commonly non-uniform communities that now exist.[15]
  2. The first printing of Beit Yosef was such a success that Maran was unable to send Bedek HaBayit, his additions and revisions, to the printers in time for them to be included in the second printing, so it had to be printed as a separate sefer and then incorporated in later editions of Beit Yosef.[16]
  3. The Chida writes how Maran had the Neshama of R' Yehudah Bar Ilay, who was "Rosh HaMedabrim beChol Makom"[17]. His ruling were accepted throughout Eretz Yisrael, Turkey, Syria, Iran, etc, but not with respect to monetary matters. According to him, one who follows the stringencies of the Rama in Eretz Yisrael need not be rebuked, but one who follows the leniencies should be. The Panim Meirot says that an Ashkenazi who keeps the leniencies of the Shulchan Aruch needs Teshuvah, and the Chida says a Yerei Hashem should keep the stringencies of both.[18]
  4. The Acharonim debate whether one can employ a Safek Sefekah leHalacha when both other sides are against Maran. Rav Ovadia is lenient,[19] but Rav Ben Tzion Abba Shaul is not.[20]

Chronology of Writings

  1. The Chida writes how important it is to learn the historical/bibliographic details of Sefarim, because it alleviates many uncertainties and prevents one from entertaining mistaken understandings, as is evidenced by the many times he uses such details to resolve issues throughout Shem HaGedolim.[21]
  2. Authorities are uncertain which work was written first, Kessef Mishneh or Beit Yosef. The number of cross citations from one book to another are too numerous in each direction to be convincing of one side or the other and, in fact, lead the Shulchan Gavoah[22] to determine that Rav Yosef Karo worked on both works simultaneously The Yad Malachi, however, argues that the Kessef Mishneh must have been completed after the Beit Yosef, because, in Kessef Mishneh, it says that the Shemitta is in year 5327, and in the end of Beit Yosef, it says the Sefer was completed in the year 5314. It's certainly possible, though, that he worked on both simultaneously and therefore referenced the Kessef Mishneh manuscript in Beit Yosef.[23] The Chida disproves this claim, because the first printing of Beit Yosef was in 5310, and Kessef Mishneh was complete but not printed until the end of Rav Yosef Karo's life. As long as he was alive, he continued to work on the Sefer, and he passed away in middle of the printing endeavor.[24]
  3. Many postulate that Shulchan Aruch was written after Bedek HaBayit, as the later positions taken in Bedek HaBayit appear in Shulchan Aruch, as well.[25] Maamar Mordechai[26] extrapolates that when Shulchan Aruch doesn't align with Bedek HaBayit, it means he retracted [again].[27]
  4. Rav Yosef Karo wrote a commentary called Klalei HaGemara on the Sefer Halichot Olam, which discusses Klalei HaTalmud. The Beit David claims Maran wrote the Klalei HaGemara later in life after completing his other works, but the Yad Malachi[28] thinks the reverse is more likely. The Chida[29] sides with the Beit David and adds that when Maran wrote his other Sefarim, he kept a list of Klalim that he extrapolated along the way and that eventually became Klalei HaGemara. [30]

Beit Yosef

Purpose

In his acclaimed introduction to Beit Yosef, Maran HaRav Yosef Karo elaborates his reasoning for writing his Sefer. Here are some of the highlights:

Context

  1. In a post Expulsion world, there is much blending of Halachic paths taking place, and there needs to be a unified voice of guidance.
  2. Although many Sefarim have been written, they often induce much confusion, by rehashing what others already wrote beforehand or misleading one to think the rulings are unequivocal, while they in fact are laden in controversy. Demanding that one research the sources himself is unreasonable, and existing resources like the Maggid Mishneh and Rabbeinu Yerucham are not comprehensive, lacking, or limited in scope. Even if one knows the source, he still bears the burden of looking it and all of its commentaries up himself, find the relevant responsa, and determine which to follow. Certainly one who intends to cover much ground and gather wide, sweeping knowledge of the gamut of Halacha has his hands overflowing with sources to learn, remember, and not get sidetracked by. Even looking up the relevant Gemaras on each topic is already a handful. Attempting to substitute with Sifrei Kitzurim is a recipe to not know a single Halacha well. Therefore he decided to write a Sefer that includes all of the Halachot with their sources and arrays of understandings in the Poskim.

Structure

  1. Instead of writing a new Sefer and rehashing that which has already been done, I decided to write my work as a commentary on a major Posek's work. At first, I considered writing it on the Rambam, since he's the most lauded Posek in the world. Then, I changed my mind and wrote on the Tur instead, because the Rambam only presents his own opinion and not those of others, which would mean Rav Yosef Karo would have to write even more.
  2. As a result, the Beit Yosef was written on the Tur, to:
    1. Source the Halachot in the writings of Chazal
    2. Include the reasonings of the cited Rishonim
    3. Fill in those approaches of Rishonim that were omitted
    4. Elucidate the words of Rishonim, especially the difficult ones, like the Rambam, whose words are often cryptic
    5. This way, one who learns it will have the the explained opinions of major Rishonim plus some Zohar organized in front of him.

The Remarkable Derech HaPesak

  1. The goal of the Beit Yosef is to indeed to decide which position to follow, but not with Talmudic proofs. The Chiddushim of the Rishonim are already erupting with the back and forth of Talmud Torah at levels that we are incapable of determining who is correct. Attempting to do so would be foolish, cavalier, and simply arrogant. We're incapable in our diminished state of sin to understand or outsmart them.
  2. Therefore, I decided to use the three pillars of Halacha upon which the entire Jewish nation is supported - the Rif, Rambam, and Rosh.
  3. Where two of the three agree, the Halacha will follow them, except for the few places where all or the majority of Chachmei Yisrael disagree and result in the Minhag being the opposite.
  4. If one of the three did not reveal his opinion, then we'll follow the eminent Chachamim who did voice an opinion on the matter.
  5. In locations where there was already a pre-established Minhag to prohibit something, they should uphold it, as is elaborated in Perek Makom SheNahagu[31]

The Name

  1. As the Sefer will sustain students of any caliber in understanding the Tur, it's called Beit Yosef, just as everyone was fed from Yosef's estate in Mitzrayim.
  2. Also because it's my home in Olam HaZeh and Olam HaBa.

Klalim

  1. Given that the Rosh, Mordechai. Samag, Samak, Sefer HaTerumah, and Hagahot Maimoniot all draw from the Baalei HaTosafot, the complete list of citations regarding Halachot they all write of is omitted in favor of just citing the location in Tosafot. Therefore, one shouldn't be concerned that the those sources were not seen by the Beit Yosef.[32]
  2. Due to the fact that the Shu"t HaRashba printed in the times of the Beit Yosef was mistakenly attributed to the Ramban, the Beit Yosef refers to it as Shu"t HaRamban, even though he knew it was really the Rashba's. This way, one who seeks to look up the source will know which Sefer to open.[33]
  3. The Kenesset HaGedolah laments how sometimes the Beit Yosef will quote another Rishon quoting the Rambam, when the Rambam's ruling is already written explicitly. He suggests that the secondary source must have added an additional dimension to the idea to warrant its inclusion.[34]
  4. Rav Yosef Karo usually rules stringently by Safek DeOraita, so it's astonishing when he doesn't.[35]
  5. The Beit Yosef does not employ the mechanism of Kim Li to determine a ruling but rather, if none of the three Amudei Horaah elicits an opinion, he finds one of the commonly accepted Poskim ("Mefursamim") who did and rules like him. Some take issue with his exclusion of Kim Li in favor of his Amudei Horaah rule in monetary cases.[36]
  6. When many Rishonim share a position, the Beit Yosef does not list off all of their names but rather shares it in the name of the most notable Posek who says it.[37]
  7. According to the Kenesset HaGedolah, the style of the Beit Yosef is to collect sevarot, so sometimes opposite ideas will be separated by an "Aval" but not always, because his intention is to inform us of the spectrum of opinions and for the Posek to decide.[38]

Bedek HaBayit

  1. The emendations of the Bedek HaBayit were not always printed on the right Siman in Beit Yosef.[39]
  2. The Rama didn't see the Bedek HaBayit,[40] because it was printed after he died. Neither id the Sma, Bach, or Tosafot Yom Tov.[41]
  3. When faced with a Bedek HaBayit that permits something prohibited in the Beit Yosef, the Kenesset HaGedolah argues it doesn't indicate retraction: the Beit Yosef is a comprehensive compilation of all the opinions, so he was just filling it in but doesn't necessarily hold of it.[42]
  4. According to Rav Yosef Karo's son, some of the pamphlets of Bedek HaBayit were lost, which may account for contradictions between Beit Yosef and Shulchan Aruch, as the retracting statements never made it to the page. The Chida postulates that only 1/50 of the actual Bedek HaBayit is extant and adds that had they still be available, most of the objections raised against the Shulchan Aruch would be resolved.[43]

Shulchan Aruch

Purpose

  1. The intention of Maran and the Rama was for Shulchan Aruch to serve as a tool for monthly review by those who have already learned the Tur and Beit Yosef.[44] The purpose is not to rule from the sefer itself. The Sma[45] laments how in his day, centuries ago, many people wanted to learn the entire Torah on one foot and would rule from the Shulchan Aruch alone. The Beit Yosef himself[46] himself makes this point. As the Sdei Chemed[47] puts it, if you don't know the source you won't understand the din. The Acharonim, notably the Maharsha[48], term such mistaken people "destroyers of the world," but nowadays with the many commentaries on the page of Shulchan Aruch, there's a strong argument to be made that this isn't as relevant of a concern, because the reasoning and source will be explained among the commentators, as well.[49]

Audience

  1. The Kenesset HaGedolah postulates all rulings in the Beit Yosef are intended for all Jewish communities, while those in Shulchan Aruch are only intended for Eretz Yisrael. This would even be plausible to say between two contradictory statements in Shulchan Aruch itself.[50]

Inconsistencies with Beit Yosef

  1. Often times, Maran will omit from Shulchan Aruch a nunber of rulings cited in Beit Yosef, because, the Kenesset HaGedolah explains, he didn't find these rulings in those of other Poskim. They were cited in Beit Yosef, because the goal of Beit Yosef is to gather all the opinions. Others say he retracted his position[51] While others yet insist that the content omitted is still accepted.[52]
  2. Sometimes, Maran records rulings or customs in Shulchan Aruch that do not appear in Beit Yosef, because he discovered them after it was printed.[53]

Methodology & Writing Style

  1. According to the Sma, even though Maran shows astonishment regarding a certain Rishon's opinion, he still records it in Shulchan Aruch despite his question.[54] The Kenesset HaGedolah does not seem to assume this way, though. Ultimately, the Sdei Chemed[55] does insist that if something that Maran questioned in Beit Yosef is omitted from Shulchan Aruch, it is an indication of nonacceptance.[56]
  2. If Maran stipulates that something is only permissible given a certain parameter yet he himself elsewhere writes that that parameter isn't necessary, his intention here is just to say that with this additional factor everyone is lenient.[57]
  3. When Maran writes "דברי פלוני נראין," he concurs to rule stringently but not for that Posek's reasoning. Additionally, "ויש לאסור כסברא פלוני" means he rules that way and agrees with the reasoning, too.[58]
  4. Maran always records the ruling in the original articulation of the Posek it comes from, even if there is some difficulty in his language that may even have practical ramifications. Essentially, he leaves room to inject whatever explanation is given for that Posek's words to the ruling in Shulchan Aruch, as well.[59]

Stam veYesh (סתם ויש)

Table courtesy of Rabbi Jonathan Cohen[60]

כשהי"א לקולא כשהי"א לחומרא עיקר שיטה
יש אומרים צמח צדק (הקדמון)
ספק בנין ציון
סתם גט פשוט, יד מלאכי
יש להקל בהפסד מרובה סתם משאת בנימין, פרי חדש
יש להקל בדרנן בהפ"מ סתם לגמרי סתם ש"ך, (חוץ מהחי"א ויד מלאכי דמבינים דס"ל כרמ"ע מפאנו), הגר"ע יוסף
יש להקל בהפסד מרובה סתם לגמרי סתם חיד"א בדעת הש"ע (ע"פ הגר"ע יוסף)
סתם לגמרי (לא כ' לגבי דרבנן) סתם לגמרי סתם ב"ח, פר"מ, שמש ומגן (הגר"ש משאש)
סתם לגמרי סתם מהרי"ט, רמ"ע מפאנו (ע"פ חוות יאיר, אליה רבה, והגר"ע יוסף),

חוות יאיר, אליה רבה, ישיב משה

יש להקל בהפסד מרובה יש לחוש לי"א סתם כנסת הגדולה
יש לחוש לי"א סתם שלחן גבוה, רמ"ע מפאו (ע"פ היד מלאכי והגינת ורדים והחיד"א)
יש להקל בהפסד מרובה יש לחוש לכתחילה,

ומקילים כסתם במקום הפסד אפ' הפסד מועט

סתם חיד"א בדעת הש"ע (ע"פ הכה"ח ואור לציון),

כה"ח בדעת הש"וע ולהלכה גבי רה"ר, ואפשר שכן דעת האור לציון (הגרב"צ אבא שאול)

סתם לגמרי אפ' בהפמ"מ יש לחוש, ומקילן כסתם רק בהפ"מ סתם חיד"א להלכה מקבלת רבותיו, זב"צ, בא"ח, כה"ח, (ואפשר שכן דעת האור לציון)
יש לחוש, ומקילין כסתם רק בהפ"מ סתם הלכות קטנות בקבלה מרבותיו
  1. The Kenesset HaGedolah writes that Shulchan Aruch follows the Stam unequivocally and unabashedly and only presents the Yesh to give Kavod to the Rishon who maintains that position, unless indicated otherwise.[61] The Ginat Veradim says it's a dispensation to allow later Chachamim who invest themselves in the Halacha and come to the conclusion of the Yesh Omrim to follow it. Many Acharonim accept this Klal, including the Rama miFano, Bach, Shach, Pri Chadash, Beit David, Elyah Rabbah, Chelkat Mechokek, and Yad Malachi.[62]
  2. A Stam VeYesh that is reversed elsewhere, meaning the Stam here is the Yesh there and the Yesh here is the Stam there, leaves us uncertain how to proceed.[63]

Yesh veYesh (יש ויש)

See Tur#Stam vaYesh and Yesh veYesh

  1. There are three basic Shitot in Yesh veYesh (יש אומרים ויש אומרים): The Halacha follows the first, the second, or whichever one the Posek chooses.[64]
  2. "Yesh veYesh" means "Yesh Omrim X veYesh Omrim Y," but "Yesh vePloni," such as "Yesh Omrim X, veHaRambam Omer Y" would not qualify under this rule; rather, Maran is highlighting the opinion of a Yachid that we do not follow.[65] Some might argue that when both Yesh Omrim's begin with a vav - "veYesh Omrim X, veYesh Omrim Y" - the rule does not apply.[66]
  3. When Maran presents the first opinion in the plural "Yesh Omrim" (יש אומרים) and the second in the singular "Yesh Mi SheOmer" (ויש מי שאומר), the Ginat Veradim and Kenesset HaGedolah understand that he accepts the first position and is implying that the latter one is a Yachid.[67]
  4. If there's an added layer of distinction to be made, it will sometimes be appended as a Yesh Omrim to a Stam, not because it's a Machaloket but because the distinction wasn't exicit in the first opinion's presentation.[68]
  5. When Maran appends "ויש חולקים" to a Halacha, some say he means to disagree with the position he just presented and side with the Cholkim, while others disagree and say he would have written it as Yesh Omrim if that was the case.[69]
  6. Sma writes that Maran and the Rama use the phrase "Yesh Mi SheOmer" (יש מי שאומר) in the singular to introduce a Rishon's position that is accepted but not mentioned by anyone else. In other words, such formulations are not a Stam vaYesh or Yesh veYesh. The Kenesset HaGedolah and others accept this Klal, but the Yad Malachi[70] argues strongly, however, that this cannot always be true, given numerous contradictory examples. Therefore, he relegates the Sma's rule to be a general one that is true most but not all of the time. Finally, there are a number of Acharonim cited by the Yad Malachi who categorically reject this Klal, but the majority seem to indeed accept it, Chida[71] and Maamar Mordechai[72] included.[73]

Authorship

  1. A number of Acharonim, including the Maharikash, R' Shmuel Abuhab, and even Rav Chaim Vital claim or heard that Shulchan Aruch was written at the end of Rav Yosef Karo's life, which accounts for contradictions and inaccuracies that crept in. They claim either he wrote it himself and was weak and old, or students wrote it for him or on their own. The printing dates suffice to trounce this claim. The Maharitatz writes that the Shulchan Aruch was written for laymen and Amei HaAretz, which caused the Yad Malachi to call attention to the introduction to Shulchan Aruch where Maran writes exactly not so and to the testimonies of the Ginat Veradim and Kenesset HaGedolah to the grand acceptance of Shulchan Aruch. Some argue the proof from the Hakdama is invalid, as it could be referring to one who uses both Shulchan Aruch and Beit Yosef. The Maamar Mordechai 38:4 defends the Maharitatz as being taken out of context.[74]

She'elot u'Teshuvot

  1. Maran wrote responsa on all areas of Shulchan Aruch (see "Works No Longer Extant"). We have Avkat Rochel, which is a compilation of responsa to his contemporaries, such as the Alishich, Ramak, Mabit, and Radbaz.[75] and Shu"t Beit Yosef on Even HaEzer.

Maggid Mesharim

  1. Rav Yosef Karo had an angel, a Maggid, whose teachings he recorded in Maggid Mesharim. The story of how the Maggid was revealed to him one Leil Shavuot is recorded in the Sefer Shnei Luchot HaBrit (Aseret HaDibbrot, Masechet Shavuot, Ner Mitzvah s. v. Leharot).

Works Not Available to Rav Yosef Karo

  1. The Ra'ah's Bedek HaBayit was not available to Maran, but the Bach, Sma, and Maharsha did have it.[76] The Rashba's Mishmeret HaBayit was similarly unavailable to Maran.[77]
  2. Maran never saw Piskei or Chiddushei HaRiaz or Shiltei HaGibborim.[78]

Works No Longer Extant

  1. In addition to the aforementioned missing sections of Bedek HaBayit, Rav Yosef Karo wrote a commentary on those of Rashi and Ramban, a commentary on Mishnayot, and responsa on all four sections of Shulchan Aruch,[79] though we only have the Shu"t Beit Yosef on Even HaEzer today. The Chida saw the other sections of responsa in manuscript.[80]

Klalei HaRama

See the Rama page.

Further Reading

Sources

  1. ↑ This overview section is based heavily on the Darkei Horaah section of Orot HaTahorah, by Rav Zecharia ben Shlomo. It also appears in the back of his other Sefarim, Hilchot Tzava and Orot HaHalacha.
  2. ↑ See Yabia Omer (vol. 1 Yoreh De'ah 25), the end of Yechaveh Da'at (vol. 5), and the introduction to Taharat haBayit.
  3. ↑ Ohr LeTzion vol. 2 "Yesodot Darkei Horaah." This is also the primary approach of Rav Zecharia ben Shlomo
  4. ↑ Hakdama to Kitzur Shulchan Aruch with comments of Rav Mordechai Eliyahu. For a crisp and concise articulation of this approach, see Which Hacham/Rabbi Should Sephardim Follow? by Rabbi Ya'aqob Menashe.
  5. ↑ רב לכלל ישראל by HaRav Eliezer Melamed
  6. ↑ Hakdama to Darkei Moshe, Shu"t HaRama Siman 48 where he writes incredible accolades, such as "Nesi Elokim Atah beTocheinu"
  7. ↑ Hakdama to Chullin
  8. ↑ Peulat Tzaddik vol. 2 Siman 251. See Klalei Maharitz by Rav Yitzchak Ratzabi printed at the end of Shulchan Aruch HaMekutzar and maharitz.co.il. Similarly, Rav Ovadia (Yechaveh Daat vol. 1 Siman 27) argues Teimanim who move to Eretz Yisrael should accept the positions of the Shulchan Aruch, such as by reciting a Beracha on lighting Yom Tov candles.
  9. ↑ Hakdama to Shtilei Zeitim
  10. ↑ Revid HaZahav Siman 26, page 37
  11. ↑ See Iggerot Moshe Yoreh Deah vol. 3 Siman 117
  12. ↑ Hakdama to Biur on Mishneh Torah, pages 21-22, He told HaRav Zecharia Ben Shlomo on more than one occasion that there are cases where they do not follow the Rambam
  13. ↑ Shem HaGedolim (Sefarim, Tet 17)
  14. ↑ See Beur Halacha 468 s.v. Vechumrei HaMakom
  15. ↑ Rav Chaim David HaLevi (Shu"t Aseh Lecha Rav vol. 7 Siman 4) defending Rav Ovadia (Shu"t Yechave Da'at 1:12) against a question by Rav Avraham Sherman (Niv HaMidrashia vol. 18-19 Iyyar 5745). He continues to point out that the Chazon Ish's illustration (Zeraim, Sheviit 23:5) of the Minhag evolving from the following Rambam, to the Shulchan Aruch, and then to Acharonim is only relevant to Ashkenazim, who dird not accept the Shulchan Aruch's rulings on themselves and their descendants, unlike the Sepharadim.
  16. ↑ Hakdama to Bedek HaBayit
  17. ↑ Shabbat 33b
  18. ↑ Shem HaGedolim (Sefarim, Tet 11)
  19. ↑ Yabia Omer vol. 9 Yoreh Deah 6:4, because we accepted Maran BeTorat Safek, not Vaday
  20. ↑ Shu"t Ohr LeTzion volume 2 page 12
  21. ↑ Shem HaGedolim (Sefarim, Tet 11)
  22. ↑ Shulchan Gavoah (Klalim Siman 13)
  23. ↑ Yad Malachi (Klalei HaKessef Mishneh 1-2)
  24. ↑ Shem HaGedolim (Sefarim, Maarechet Bet Ot 59, Maarechet Kaf Ot 50), Matnat Yado fn. 17. See Sdei Chemed (Klalei HaPoskim 13:28)
  25. ↑ Kenesset HaGedolah and Ginat Veradim cited in Yad Malachi (Klalei Shulchan Aruch 15)
  26. ↑ Maamar Mordechai 27:1
  27. ↑ See Shem HaGedolim vol. 2 Bedek HaBayit, Sdei Chemed Klalei HaPoskim 13:30, Shu"t Yabia Omer (vol 4 Orach Chaim 8:23, vol. 6 Chosen Mishpat 6:5, and vol. 9 Yoreh Deah 8:2
  28. ↑ Yad Malachi (Klalei Beit Yosef 42)
  29. ↑ Ein Zocher Lamed 14
  30. ↑ Shem HaGedolim vol. 2 Ot Chaf 24. Matnat Yado fn. 110. In fn. 111 he quotes the Ein Zocher (ibid) who writes how the Kenesset HaGedolah did the same.
  31. ↑ Pesachim 51a
  32. ↑ Hakdama to Beit Yosef
  33. ↑ Hakdama to Beit Yosef
  34. ↑ Yad Malachi (Klalei Beit Yosef 35)
  35. ↑ Yad Malachi (Klalei Beit Yosef 36)
  36. ↑ Yad Malachi (Klalei Beit Yosef 38)
  37. ↑ Yad Malachi (Klalei Beit Yosef 40)
  38. ↑ Yad Malachi (Klalei Beit Yosef 41)
  39. ↑ Yad Malachi (Klalei Beit Yosef 39), Shem HaGedolim (Gedolim, Yud 165; Sefarim, Bet 31)
  40. ↑ Yad Malachi (Klalei Beit Yosef 39)
  41. ↑ Beit Shmuel 15, Shach (Yoreh Deah 34), Elyah Rabbah 101:3, Birkei Yosef Yoreh Deah 286:2 and Orach Chaim 27:4 and 101, Shem HaGedolim (Sefarim, Bet 31) and Menachem Tzion ad loc., Sdei Chemed Klalei HaPoskim 14:9), Matnat Yado ad loc.
  42. ↑ Yad Malachi (Klalei Beit Yosef 37)
  43. ↑ Shem HaGedolim (Gedolim, Yud 165; Sefarim, Bet 31)
  44. ↑ Hakdama to Shulchan Aruch
  45. ↑ Sma Hakdama
  46. ↑ Shu"t Beit Yosef Even HaEzer Dinei Gittin Siman 4
  47. ↑ Sdei Chemed (Klalei HaPoskim 13:2)
  48. ↑ Chiddushei Aggadot Sotah 22a
  49. ↑ Pitchei Teshuva Yoreh Deah 242. Yad Malachi (Klalei Shulchan Aruch 1) and Matnat Yado ad loc.
  50. ↑ Yad Malachi (Klalei Shulchan Aruch 3)
  51. ↑ Minchat Yitzchak vol. 8 Siman 31 extends to Rama also.
  52. ↑ Yad Malachi (Klalei Shulchan Aruch 4) and Matnat Yado ad loc. See also Petach HaDevir vol. 4 Siman 339:4, Shu"t Rav Pe'alim (vol. 2 Siman 43), Shu"t Yabia Omer (vol. 3 Even HaEzer Siman 13:2, vol. 5 Orach Chaim Siman 39:4, vol. 6 Orach Chaim 24:2), Shu"t Yechaveh Daat (vol. 2 Siman 40, vol. 4 Siman 46 in the footnotes), Leviat Chen (Siman 40), Taharat HaBayit (vol. 1 Siman 2 page 58, vol. 2 Siman 13 page 377 and 427). Chief Rabbi of the Israeli Police Force and former rabbi of the Yishuv Talmon, Rav Rami Berachyahu delivers a clear treatment of this in Tal Livracha vol. 2 Siman 38 and concludes that many Acharonim agree with the Chida that the Halacha follows the Shulchan Aruch except for in three types of cases: the case is uncommon, the idea is obvious, or it's hinted to in another place. Of course, each instance requires its own investigation, though.
  53. ↑ Yad Malachi (Klalei Shulchan Aruch 5) and Matnat Yado ad loc.
  54. ↑ See Rav Berachot, Chukot HaChaim Siman 51, and Kol HaChaim Mem 62 where Rav Chaim Palagi and the Ben Ish Chai discuss this further.
  55. ↑ Sdei Chemed Klalei HaPoskim 13:4
  56. ↑ Yad Malachi (Klalei Shulchan Aruch 7), Matnat Yado fn. 25
  57. ↑ Yad Malachi (Klalei Shulchan Aruch 8)
  58. ↑ Yad Malachi (Klalei Shulchan Aruch 9)
  59. ↑ Yad Malachi (Klalei Shulchan Aruch 11)
  60. ↑ See his Sephardi Yoreh Deah Chabura - Taaruvot 98 - Stam VaYesh Part I, Part II, and Part III for a deeper understanding, plus source sheets.
  61. ↑ Yad Malachi (Klalei Shaar HaPoskim 17)
  62. ↑ Yad Malachi (Klalei Shulchan Aruch 17). See Sdei Chemed Klalei HaPoskim 13:8, Minchat Yitzchak 10:8.
  63. ↑ Yad Malachi (Klalei Shaar HaPoskim 18)
  64. ↑ The three positions are:
    1. Kenesset HaGedolah, Elyah Rabbah, and Beit David write that the Shulchan Aruch and Rama accept the second Yesh. Yad Malachi (Klalei Shulchan Aruch 13) has a bunch of problematic examples and suggests that it's only applicable where there is no decisive line at the end indicating which to follow. For example, if the Halacha follows the second approach, why does Maran sometimes append a "Hachi Mistavra" to the second Yesh? Isn't the Klal sufficient to inform us that he accepts that position? Why tell us that it's logical also? The Chida (Birkei Yosef Orach Chaim 273:8) elucidates that Maran doesn't rule based on his own intellect but rather by the majority of the Poskim's. The Klal indicates which position was accepted by the Gedolei HaPoskim, and the addendum of "Hachi Mistavra" means that Maran himseld also though it logical.
    2. Ginat Veradim interestingly posits you can choose.
    See Yafeh LeLev Orach Chayim vol. 1 159:6 who adds another challenging citation to the Yad Malachi's list, Petach HaDevir vol 3 pg 296 col 3, and Sdei Chemed (Klalei HaPoskim 13:14-15), as cited in Matnat Yado fn. 71.
  65. ↑ Yad Malachi (Klalei Shulchan Aruch 14
  66. ↑ Magen Avot Orach Chaim 422:2 fn. 308 s.v. Vegam.
  67. ↑ However, the Yad Malachi (Klalei Shulchan Aruch 15) feels the Kenesset HaGedolah eventually retracted his position in his Klalim, while others argue that he misunderstood the second Klal and there was never a retraction (Matnat Yado ad loc.). It's noteworthy how Maran presents a Yesh Omrim veYesh Mi SheOmer in Choshen Mishpat 213 and the Chida (Birkei Yosef Orach Chaim 561) treats it like a regular Yesh veYesh.
  68. ↑ Yad Malachi (Klalei Shulchan Aruch 6)
  69. ↑ Yad Malachi (Klalei Shulchan Aruch 10)
  70. ↑ Yad Malachi (Klalei Shulchan Aruch 12)
  71. ↑ Birkei Yosef Orach Chaim 672:1, Machzik Bracha Yoreh Deah 83:16
  72. ↑ Ma'amar Mordechai 273:1
  73. ↑ Matnat Yado fn. 55, 58<. See also Sdei Chemed (Klalei HaPoskim 13:22), Yabia Omer (vol. 2 Orach Chaim 4:3), and Elkabetz (Aflalo, vol. 1 Even HaEzer 1)
  74. ↑ Yad Malachi (Klalei Shulchan Aruch 2), Matnat Yado ad loc
  75. ↑ Shem HaGedolim (Sefarim, Aleph 13)
  76. ↑ Yad Malachi (Klalei HaTur 15), Shem HaGedolim (Gedolim, Shin 19)
  77. ↑ Shem HaGedolim (Gedolim, Shin 19)
  78. ↑ Yad Malachi (Klalei Shear HaMechabrim 44), Birkei Yosef Orach Chaim 188:2, Shem HaGedolim (Sefarim, Shiltei HaGibborim)
  79. ↑ Hakdama to Shu"t Beit Yosef (Even HaEzer)
  80. ↑ Shem HaGedolim (Gedolim, Yud 165)
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