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| A number of these Klalim, such as Stam vaYesh and Yesh veYesh have much import in understanding many of the Rishonim, though the idea is only written out under the heading of one of them. | | A number of these Klalim, such as Stam vaYesh and Yesh veYesh have much import in understanding many of the Rishonim, though the idea is only written out under the heading of one of them. |
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| ==Safrut Chazal: Talmud Bavli and Yerushalmi, Tosefta, Midrashim, and Zohar ==
| | The Chida writes how important it is to learn the chronological/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.<ref>Shem HaGedolim (Sefarim, Tet 11)</ref> |
| === Bavli ===
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| # Regarding intra-Talmudic Halachic decision making ([[Klalei HaShas]]), see [[Klalei HaTalmud]] ([[Talmudic Methodology]]).
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| # "Sugya veDuchteh Adifah" - The Amoraim focused most on the precise presentation of the Halacha when discussing it in its proper context. When discussing tangential points, the they were not as careful to speak with complete precision satisfactory for inferring the Halacha from.<ref>Yad Malachi (Klalei Shnei HaTalmudim 13)</ref>
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| === Differences Between the Yerushalmi and Bavli ===
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| # Since the Talmud Bavli was written after the Talmud Yerushalmi, its codifiers were able to filter out the points they didn't think were accepted. As such, when the two contradict, we follow the Talmud Bavli, and some say we should never even be concerned for the Yerushalmi's statements altogether for this reason.<ref>Yad Malachi (Klalei Shnei HaTalmudim 1). See Maharatz Chayut Taanit 16a, Darkei Horaah vol. 2, Imrei Binah Siman 2 in the Hagah, Pachad Yitzchak "Gemara Bavlit"</ref>
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| # The Halacha follows the Bavli over the Yerushalmi wherever they disagree, but, if the Yerushalmi discusses a ''Halacha'' not mentioned in the Bavli, the Halacha follows the Yerushalmi. If it's a ''distinction'' not mentioned in the Bavli, then there's a strong argument to say the Bavli's omission is an indication of disagreement.<ref>Yad Malachi (Klalei Shnei HaTalmudim 4). The Beit Yosef's position on this matter needs further elaboration.</ref>
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| # The Rosh<ref>Shu"t HaRosh 4:10</ref> writes how we only follow the Bavli over the Yerushalmi with respect to Halachot, such as Tuma veTaharah, Issur veHetter, Chiyuv and Pettur, but not things that are Tzorech Hashaah and have no ramifications on Dinei HaTorah. Those are subjective to the time, place, and needs of the people. Similarly, the Rashbesh <ref>Shu"t HaRashbesh Siman 251</ref> says that with respect to Minhagim, we would follow the Yerushalmi.<ref>Yad Malachi (Klalei Shnei HaTalmudim 5)</ref>
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| # If two approaches are offered in the Bavli and only one of them appears in the Yerushalmi, the Halacha follows that approach.<ref>Yad Malachi (Klalei Shnei HaTalmudim 8)</ref>
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| # The Rishonim observe that the Yerushalmi in our possession is corrupt and enigmatic. At most, one person in a generation can crack its meaning.<ref>Yad Malachi (Klalei Shnei HaTalmudim 6)</ref> If a Baraita is quoted slightly differently in the Bavli from the way it's quoted in the Yerushalmi, the Ohr HaChaim claims one can accept the Yerushalmi's version and label the Baraita in the Bavli as Meshabeshta (corrupt). The Yad Malachi takes issue with this approach, in light of the general issue of textual obstacles in reading the Yerushalmi and the Tashbetz's claim that said even the girsa of the Yerushalmi is unreliable, not just the Halachot.<ref>Yad Malachi (Klalei Shnei HaTalmudim 7). See footnote 35 who writes that the Ohr HaChaim meant his statement only when there's no discussion of the Baraita in the Bavli. See Maharatz Chayut in Tiferet LeMoshe Chapter 3 and Sukkah 41b.</ref>
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| # Given a Machaloket in the Bavli and a "Maaseh Rav" (anecdote about a Talmudic figure) in the Yerushalmi that takes a side, the Halacha follows the side expressed by the Maaseh Rav in the Yerushalmi.<ref>Yad Malachi (Klalei Shnei HaTalmudim 9)</ref>
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| # The Poskim often try to harmonize the Bavli and Yerushalmi as much as possible.<ref>Yad Malachi (Klalei Shnei HaTalmudim 10)</ref>
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| # Sometimes, when referring to topics in different locations, the Yerushalmi mixes up "here" and "there," because the topic appears more than once and the same text was copied/repeated completely from one location to the other without adjustment.<ref>Yad Malachi (Klalei Shnei HaTalmudim 11)</ref>
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| === Differences Between Other Sefarim ===
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| # When the Talmud and Zohar contradict, the Radbaz<ref>Shu"t HaRadbaz Siman 1111</ref> is well known for positing that one should follow the Talmud and Poskim.<ref>Yad Malachi (Klalei Shnei HaTalmudim 1), See Kenesset HaGedolah (Klalei HaPoskim 1), see Radbaz (Siman 1151), Chacham Tzvi vol. 1 Siman 36, Magen Avraham 25:20, Shaarei Teshuvah Orach Chaim 25:14, Shulchan Aruch HaRav Orach Chaim 25:28, Kaf HaChaim (Orach Chaim 25:75), Sdei Chemed (Klalei HaPoskim 2:12), Shu"t Afarseka deAnya 2:101, Keter Rosh at the end Siman 15, Mishnah Berurah 3:11, Yabia Omer (vol. 2 Orach Chaim 25:12), [http://www.hebrewbooks.org/pdfpager.aspx?req=14520&pgnum=23 Tzitz Eliezer (vol. 21 Siman 5)], Gevurat HaAri (R' Yaakov Hillel), Kuntress Yirat HaHoraah by Rav Reuven Yissachar Nissan (page 95, printed in the back of the new Mekavtziel of the Ben Ish Chai)</ref>
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| # When faced with a contradiction between the Yerushalmi and the Tosefta, the Rambam generally sides with the Yerushalmi. The Kessef Mishneh (Hilchot Maaser Sheni 1:10) explains that the authenticity of our set of Toseftas is questionable: they may not be the same Toseftas compiled by Rav Chiya and Rav Oshiya.<ref>For more on the authenticity of our Toseftas, see Kessef Mishneh (Hilchot Teshuvah 4:1), Berit Olam on Sefer Chassidim Siman 19, [https://www.otzar.org/wotzar/book.aspx?103473&pageid=Y0019 Mishnat Rabbi Yaakov (Introduction to the Tosefta, 7:3, page 20)], and Klalei HaGemara (Sha'ar 1 Perek 1 Ot 2).</ref> The Peri Chadash<ref>Pri Chadash Orach Chaim Siman 450</ref> adds that it's based on the Yerushalmi's later date of redaction. The Radbaz thinks the Rif takes the side of the Tosefta in such instances, while the Sdei Chemed and Korban Netanel<ref>Korban Netanel (Klalim 18)</ref> think not so.<ref>Yad Malachi (Klalei Shnei HaTalmudim 3)</ref>
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| # As we would follow the Yerushalmi against the silence of the Bavli, if there is a contradiction between a Midrash Rabbah and Yerushalmi, the Halacha follows the Yerushalmi over the Midrash.<ref>Yad Malachi (Klalei Shnei HaTalmudim 14)</ref>
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| === Sefarim HaChitzonim (Masechet Semachot, Sofrim, and others) === | | ==Safrut Chazal == |
| # Tosafot in a number of places writes how with respect to some Halachot, they follow Sefarim Chitzonim, such as Masechet Semachot and Masechet Sofrim, which were compiled later on, against the Talmud. They're called Chitzonim, according to the Bach<ref>Bach Yoreh De'ah 178:2</ref> because they are external to the Gemara, or, according to the Chidah, because they're even further removed from the Baraitot, which are already "outside," as their name suggests.<ref>Shem HaGedolim vol. 2 "Sefarim HaChitzonim"</ref> Some say the Girsaot are also enigmatic.<ref>There's a debate if the Gemara quoting Baraitot that appear in Masechet Sofrim means the Gemara is quoting from Masechet Soferim or the other way around. Some say these Sefarim have no actual derashot, just asmachtot. Yad Malachi (Klalei Shnei HaTalmudim 12) See Matnat Yado ad loc at length. See Ein Zocher (Samech 31), Birkei Yosef (Orach Chaim 581:7), Shem HaGedolim vol. 2 "Soferim," Sdei Chemed Klalei HaPoskim 2:3.</ref>
| | * [[Talmud Bavli and Yerushalmi]] |
| | * [[Tosefta]] |
| | * [[Midrashim]] |
| | * [[Zohar]] |
| | * [[Sefarim HaChitzonim]] |
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| == Bahag (Ba'al Halachot Gedolot) == | | ==Klalei HaRishonim== |
| # Often times, the Rishonim will disagree with the Bahag but conclude in favor of his ruling anyway, even if it's illogical, because "Devarav Divrei Kabbalah Hem." Because of the tradition stemming from the Amoraim, through the Savoraim, to him, the Bahag is granted special authority when the Gemara does not explicitly say otherwise; however, if the Rishonim feel the Gemara contradicts his words, then they freely disagree in practice, as well.<ref>Yad Malachi (Klalei Bahag 3)</ref>
| | Some Rishonim are know by the same acronym, which can be confusing. See [[Disambiguations of Rishonim]] for clarification. |
| # The Rishonim are uncertain if the Halachot Gedolot was authored by Rav Yehudai Gaon, who was blind, or by Rav Shimon Kayyara. Illogical rulings could be pinned on the former's students misinterpretation of their rebbe's words when writing his sefer. Some say Rav Shimon Kayyara wrote Halachot Gedolot, and Rav Yehudai Gaon wrote a different sefer known as Halachot Pesukot, while others claim they each wrote a sefer called Halachot Gedolot.<ref>Yad Malachi (Klalei Bahag 4). There is also much to say in the realm of academic scholarship on this topic.
| | {| class="wikitable" |
| See the [https://en.wikipedia.org/wiki/Halachot_Gedolot Wikipedia page] for more sources.</ref>
| | | [[Geonim]] |
| | | [[Rashi]] |
| | | [[Maharam Rutenberg]] |
| | | [[Ramban]] |
| | | [[Tosafot Rid|Tosfot Rid]] |
| | |- |
| | | [[Baal Halachot Gedolot]] ([[Bahag]]) |
| | | [[Tosafot|Tosfot]] |
| | | [[Rosh]] |
| | | [[Ra'ah]] |
| | | [[Riaz]] |
| | |- |
| | | [[Rif]] |
| | | [[Sefer HaTerumah]] |
| | | [[Tur]] |
| | | [[Rabbeinu Yonah]] |
| | | [[Shiltei HaGibborim]] |
| | |- |
| | | [[Rambam]] |
| | | [[Baal HaIttur]] |
| | | [[Rabbeinu Yerucham]] |
| | | [[Rashba]] |
| | | [[Maharik]] |
| | |- |
| | | [[Raavad]] |
| | | [[Rash MiShantz]] |
| | | [[Mordechai]] |
| | | [[Ritva]] |
| | | [[R' Ovadia MiBartenura]] |
| | |- |
| | | [[Baal HaMaor]] |
| | | [[Sefer Mitzvot Gadol]] ([[Samag|Smag]]/[[Semag]]) |
| | | [[Hagahot Maimoniot]] |
| | | [[Ran]] |
| | | [[Maharil]] |
| | |- |
| | | [[Ra'avan]] |
| | | [[Ra'avyah]] |
| | | [[Hagahot Ashri]] |
| | | [[Nimukei Yosef]] |
| | | [[Kol Bo]] |
| | |- |
| | | [[Rabbi Eliezer MiMitz]] |
| | | [[Sefer HaTerumot]] |
| | | |
| | | [[Maggid Mishneh]] |
| | | [[Terumat HaDeshen|Trumat HaDeshen]] |
| | |- |
| | | |
| | | [[Meiri]] |
| | | |
| | | [[Migdal Oz]] |
| | | [[Orchot Chaim]] |
| | |- |
| | | |
| | | |
| | | |
| | | [[Rivash]] |
| | | |
| | |- |
| | | |
| | | |
| | | |
| | | [[Tashbetz]] |
| | | |
| | |} |
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| ==Rif== | | ==Klalei HaAcharonim== |
| === Practical Focus ===
| | * [[Shulchan Aruch and Rama]] |
| The Rif generally quotes only relevant passages of the Gemara and leaves out points that aren't accepted at the end of the sugya. That said, there are some exceptions to be aware of.
| | * [[Radbaz]] ([[Rav David ben Zimra]]) |
| # Even though the Rif generally only records Halachot that are relevant nowadays, for example, to the exclusion of Kodashim, if a Halacha that is generally relevant has a detail that is not, he will write the entire Halacha including the detail. Moreover, if there is some relevant Halacha or Chiddush to derive from the irrelevant Halacha, then that Halacha will be included, as well,<ref>Yad Malachi (Klalei HaRif 7)</ref> but practical but uncommon Halachot will not be recorded.<ref>Korban Netanel (Klalim 3) in the name of the Ran</ref>
| | * [[Maharikash]] ([[Rav Yaakov Kastro]]) |
| # If a din that does not appear to be subject of debate in the Gemara is only recorded partially in the Rif, it's an indication that the Rif holds the omitted segments are not accepted in practice.<ref>Yad Malachi (Klalei HaRif 16)</ref>
| | * [[Binyamin Ze'ev]] |
| # Periodically, the Rif will quote a Tosefta by opening with Tanu Rabbanan, because the end of that Tosefta is quoted in the Gemara.<ref>Yad Malachi (Klalei HaRif 11)</ref>
| | * [[Kenesset HaGedolah]] |
| # When the Gemara presents two Baraitot that each derive the same Halacha but from different sources (Tanya and Tanya Idach), the Rif will quote both.<ref>Yad Malachi (Klalei HaRif 12)</ref>
| | * [[Mishneh LeMelech]] |
| # However, some say he will not quote a Baraita that is not in line with the accepted Halacha.<ref>Yad Malachi (Klalei HaRif 9)</ref>
| | * [[Chelkat Mechokek]] |
| # If the Gemara presents an answer that unanimously resolves a difficulty in the Mishna but then continues to present additional resolutions from other Amoraim, which we would assume like in practice, the Rif will still quote the unanimously agreeable upon answer, even if it's not LeHalacha.<ref>Yad Malachi (Klalei HaRif 21)</ref>
| | * [[Lechem Mishneh (on the Rambam)]] |
| # The Be'er Sheva advises one to not be surprised if the Rif omits the okimta of the Gemara in favor of his own original understanding, as he rathers to minimize Machaloket than quote the Gemara. The Yad Malachi argues lengthily against this approach and posits that the Rif merely omits Gemaras he feels to not be Aliba deHilcheta. The Rif and Rambam aren't Amoraim who have the ability to decide unresolved issues in the Gemara!<ref>Yad Malachi (Klalei HaRif 6)</ref>
| | * [[Magen Avraham]] |
| # Similar to the rule of Stam vaYesh in reading Shulchan Aruch, when the Rif states that the Halacha follows a certain ruling but there are those who disagree, he intends to rule like the former and is only sharing the latter to transmit the rulings of earlier generations.<ref>Yad Malachi (Klalei HaRif 5), Korban Netanel (Klalim 5)</ref>
| | * [[Taz]] |
| # If the Gemara presents an alternative answer (איכא דאמרי), the Rif will pasken like it instead of the first answer, even if the second answer is more stringent and the case is only of DeRabbanan nature.<ref>Korban Netanel (Klalim 1)</ref>
| | * [[Chida]] ([[Rav Chaim Yosef David Azoulay]]) |
| # Unless explicitly stated by the Rif that one should be stringent, the assumption is that a lenient approach is taken with unresolved inquiries of the Gemara (Tiku)<ref>Yad Malachi (Klalei HaRif 8)</ref>
| | * [[Chesed LeAlafim]] |
| # Similar to Rashi, the Rif will only explain a Halacha with the words כלומר or פירוש to offer specifically this interpreation over a possible alternative one that would be subject to some question.<ref>Yad Malachi (Klalei HaRif 19)</ref>
| | * [[Mishnah Berurah|Mishnah Brurah]] |
| | | * [[Moroccan Halacha]] |
| === Rav Hai Gaon ===
| |
| # "The Gaon" in the Rif's jargon most probably refers to Rav Hai Gaon.<ref>Yad Malachi (Klalei HaRif 14). See Shem HaGedolim Maarechet Sofrim Kuntress Acharon Gimmel 2 and Sdei Chemed Klalei HaPoskim 3:7.</ref>
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| # When the Rif cites a ruling of Rav Hai Gaon without explicitly agreeing with it, the Raavad and Rosh believe that he is disagreeing, while the Ramban and Rashba argue he is agreeing since he didn't state otherwise. The Yad Malachi finds that the Rashba is more logical, a great number of Rishonim side with him on this matter, and the former opinion isn't so clear in the first place.<ref>Korban Netanel (Klalim 6), Yad Malachi (Klalei HaRif 13). This is related to general din of Omer Davar Beshem Omro holds that way unless stated otherwise, see Yad Malachi (Klalei HaTalmud Vav 245)</ref>
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| # After presenting a Machaloket, if the Rif concludes with citing Rav Hai Gaon as taking a certain side, that would indicates he agrees with that side, as well.<ref>Yad Malachi (Klalei HaRif 15)</ref>
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| === Misc. ===
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| # There is controversy regarding the reliability and authorship of the Rif's responsa.<ref>Yad Malachi (Klalei HaRif 17)</ref>
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| # Rabbeinu Yitzchak ben Yaakov Alfasi, the Rif, had a grandson, Rav Yitzchak ben Reuven, who is known as the Baal HaShe'arim. Some Poskim weren't aware of this and mistakenly posed contradictions between the writings of the two.<ref>Yad Malachi (Klalei HaRif 20)</ref>
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| == Rambam ==
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| === General ===
| |
| # The Maharashdam believes that since the Rambam saw the other opinions on each issue and still decided the way we did, we should follow his rulings (analogous to the Radbaz and the Rif).<ref>Yad Malachi (Klalei HaRambam 27)</ref> On the other hand, a number of Ashkenazi authorities feel that the Rambam is a minority in the face of the Baalei HaTosafot.<ref>Yad Malachi (Klalei HaRambam 28)</ref>
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| # One cannot pose questions from Tosafot's logic against the Rambam. Gavra aGavra KaRamit?!<ref>Yad Malachi (Klalei HaRambam 8)</ref>
| |
| # The Rivash and Rosh warn that one who attempts to rule on practical matters solely from Mishneh Torah without understanding its Talmudic context will likely mistake Assur for Muttar and Muttar for Assur, thinking he understands the material. At the same time, the Rambam's explicit intention was to write the Halacha so clearly that one need not be bogged down by the confusing Sugya and need only Mishneh Torah to know how to act, so some Acharonim, such as the Ohr HaChaim and Baal HaTanya are less concerned. While that is true, the Rambam himself explains in a letter that he did so for people for whom understanding the Gemara was beyond their reach.<ref>Shu"t HaRivash (Siman 144), Shu"t HaRosh (Klal 31 Siman 9), Rishon LeTzion (Berachot 60a, Sukkah 12b), Yad Malachi (Klalei HaRambam 20), Shulchan Aruch HaRav (Kuntress Acharon Hilchot Talmud Torah Perek 2), Iggerot HaRambam (Shilat Edition, page 439)</ref>
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| # Seldom does the Rambam disagree with the Rif, so one should not assume so unless there are already a great number of Rishonim for him to side with.<ref>Yad Malachi (Klalei HaRambam 29)</ref>
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| === Mishneh Torah ===
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| ==== General Approach ====
| |
| # In Mishneh Torah, the Rambam focuses on relaying rulings explicated in the Gemara in a lucid way, while leaving out rulings that can only be inferred but aren't stated explicitly.<ref>Yad Malachi (Klalei HaRambam 2)</ref>
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| # The Rambam's style is to write only what it says in the Gemara and not the interpretation, but his intention is to for the interpretation of the Gemara to be applied to his words, as well, though some disagree.<ref>Yad Malachi (Klalei HaRambam 24)</ref>
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| # It's abnormal for the Rambam to omit a din dealt with explicitly in the Talmud and instead write a different idea not mentioned in the Talmud that implies the one mentioned explicitly.<ref>Yad Malachi (Klalei HaRambam 35)</ref>
| |
| # Counts of the number of Perakim, Halachot, Mitzvot, etc are provided in Mishneh Torah to facilitate memorization, not to imply additional ideas.<ref>Introduction to Mishneh Torah, Yad Malachi (Klalei HaRambam 34)</ref>
| |
| # The Rambam will rule like a Halacha found in the Sifrei if it's not contradicted by the Talmud.<ref>Yad Malachi (Klalei HaRambam 9)</ref>
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| # Every word of the Rambam is written with tremendous precision and exactness, enough for one to infer from his words as one would from the Gemara itself.<ref>Yad Malachi (Klalei HaRambam 3)</ref> Similarly, the Maharalbach warns that one shouldn't rush to reject the Rambam for coming off as against the Gemara, but should rather pin the in-congruence on our own lack of understanding.<ref>Yad Malachi (Klalei HaRambam 26)</ref>
| |
| # One cannot infer from the presentation of a ruling in one section of Mishneh Torah and its absence in another seemingly appropriate section that it only applies in one and not the other, as the Rambam's goal is to present the Talmud's rulings in their wording in their appropriate place. For example, a Halacha in Terumot that might also fit in Maachalot Assurot cannot be assumed to only apply in Terumot and not Maachalot Assurot given its presence in the former and absence in the latter. This is, however, a valid tool in reading other Poskim, such as the Tur.<ref>Yad Malachi (Klalei HaRambam 5)</ref>
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| # It's debatable if Halachot whose source Gemarot have unresolved textual variants (Safek Girsaot) are omitted by the Rambam.<ref>Yad Malachi (Klalei HaTur 17)</ref>
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| ==== Writing Style ====
| |
| # The word Assur is used even when referring to Dinim MiDeoraita that would warrant Malkot.<ref>Yad Malachi (Klalei HaRambam 10)</ref>
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| # "MiPi HaShmua" refers to a Halacha whose source is not explicit in the Torah,<ref>Yad Malachi (Klalei HaRambam 39)</ref> and "MiPi HaKabbalah" refers to Halachot learned from Pesukim in Neviim.<ref>Yad Malachi (Klalei HaRambam 40)</ref>
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| # The term "MiDivrei Sofrim" can refer to Dinim MiDeRabbanan, as well as any Din MiDeoraita not stated explicitly in the Torah, such as one derived via the thirteen Middot, because without the Chachamim it would not be understood.<ref>Yad Malachi (Klalei HaRambam 7)</ref>
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| # Consistently marking each Din as a Gezeirah or Halacha LeMoshe MiSinai is not a priority for the Rambam: sometime he mentions the Din's classification, while other times he does not.<ref>Yad Malachi (Klalei HaRambam 30)</ref>
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| # The Rivash argues that the Rambam will refer to a Takkanat Chachamim as "Torah," such as in "Lo Hikpida Torah" in reference to the Ne'emanut of an Ed Echad, while others disagree.<ref>Yad Malachi (Klalei HaRambam 19)</ref>
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| # When the Gemara presents more specific arguments predicated on accepting one of two possible assumptions - "Im Timtzi Lomar" - the Geonim and Rambam understand that the Halacha assumes like that assumption.<ref>Yad Malachi (Klalei HaRambam 13)</ref> Some say this is only true if the Gemara did not leave the very same uncertainty pending with a "Tiku" elsewhere, while others argue the opposite.<ref>Yad Malachi (Klalei HaRambam 14)</ref> The two levels of the Im Timtzi Lomar cannot be interchangeable, meaning if assuming A over B and then asking C over D is equivalent to assuming C over D and then asking A over B, this rule does not apply for the Rambam.<ref>Yad Malachi (Klalei HaRambam 15)</ref> The words must also be explicit in the text of the Gemara, so two subsequent questions, one building on the previous, would not be subject to this rule.<ref>Yad Malachi (Klalei HaRambam 16)</ref> The Poskim dispute if this is only true when the Amora in the Gemara himself uses these words to navigate the situation or if it's even true when the omniscient narrator of the Sugya does so externally of the Amora's words. <ref>Yad Malachi (Klalei HaRambam 18)</ref> Some say that the Rambam will not follow Im Timtzi Lomar if the Gemara explicitly assumes the opposite idea to be true.<ref>Yad Malachi (Klalei HaRosh 35)</ref>
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| # If the Gemara presents two opposite understandings and then rejects one, the Rambam will formulate it in a way that accepts the accepted one and implies the rejection of the rejected one.<ref>Yad Malachi (Klalei HaRambam 31)</ref>
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| # Often times, answers presented in the Gemara in rejection of a difficulty are omitted by the Rambam in favor of the simple meaning of the Mishnah, Baraita, or Amoraic statement.<ref>Yad Malachi (Klalei HaRambam 33)</ref>
| |
| # It is not uncommon for the Rambam to pin a ruling on a Pasuk not mentioned in or even rejected by the Gemara, because he felt it to be simpler or more acceptable, especially if there's no practical difference.<ref>Yad Malachi (Klalei HaRambam 4). See the Shut Rama MiFano Siman 108 he cites who says that the Rambam will often present a ruling borrowing the wording of one opinion but adjust it to match the other.</ref>
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| # In a few places, the Rambam employs a Talmudic phrase to mean something different from what it does in the Talmud.<ref>Yad Malachi (Klalei HaRambam 38)</ref>
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| | |
| ==== Connections to Other Works ====
| |
| # Though the Rambam never relies in Mishneh Torah on what he already wrote in Peirush HaMishnayot, he does rely on what he wrote in earlier sections of Mishneh Torah, and perhaps even later ones, or, at least, in that chapter.<ref>Yad Malachi (Klalei HaRambam 6, 37)</ref>
| |
| # When a contradiction is found between the Perush HaMishnayot and the Mishneh Torah, the Halacha follows Mishneh Torah, which was written later and as a set of rulings, not a set of elucidations of the Mishnah.<ref>Yad Malachi (Klalei HaRambam 1)</ref>
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| === Sefer HaMitzvot ===
| |
| # The focus of Sefer HaMitzvot is not to determine which Mitzvot are part of the 613, not to present a comprehensive of accurate representation of their Halachot and details. Therefore, when studying Sefer HaMitzvot, questioning the count of Mitzvot is wholly acceptable, but questioning the details of the Mitzvot is not. The Mishneh Torah was written to address those details, and, even if there are distinct differences, it's always possible that he changed his mind over time.<ref>Yad Malachi (Klalei HaRambam 23)</ref>
| |
| # There's a debate regarding if specific Rishonim such as the Samag, Maggid Mishneh, and Migdal Oz saw the Sefer HaMitzvot, as it wasn't translated from Arabic to Hebrew for some time. Later Acharonim culled lists of instances in which each of them cites the Sefer HaMitzvot to dispel those claims.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 51) and footnotes there.</ref>
| |
| | |
| === Perush HaMishnah ===
| |
| # In Perush HaMishnayot, wherever there is an opinion that misleadingly seems to be the minority one but is, in fact, the one the Halacha follows, the Rambam will buttress that opinion by writing of its truth or singularity or the like to indicate that the Halacha does indeed follow it.<ref>Yad Malachi (Klalei HaRambam 36)</ref>
| |
| # Sometimes our translation of Perush HaMishnayot will refer to a din as being MiDeRabbanan, but it's probably just a mistaken translation of "MiDivrei Sofrim."<ref>Yad Malachi (Klalei HaRambam 22)</ref>
| |
| # The Ramban did not have the Introduction to Perush HaMishnayot available to him, as Hebrew translations of the Arabic work were not yet available in Spain, according to the Yad Malachi, who posits that had they been available, the Ramban would not have been as quick to argue.<ref>Yad Malachi (Klalei HaRambam 21)</ref> The Rashba did not have the Perush HaMishnah available at all either.<ref>Yad Malachi (Klalei HaRashba 8)</ref>
| |
| | |
| ==Ra'avad==
| |
| [https://en.wikipedia.org/wiki/RABaD Disambiguation]: It's important to be aware that there are three individuals known as the Ra'avad: R' Avraham ibn Daud of Spain, author of Sefer HaKabbalah; R' Avraham ben Yitzchak Av Beit Din of Narbonne, who wrote the Sefer HaEshkol; his son in law, and R' Avraham ben David of Posquières, author of the Hasagot on the Baal HaMaor and Rambam, Baalei HaNefesh, and quoted extensively by Rishonim.<ref>See Shach Choshen Mishpat 39:2</ref> Here, we also refer to the third one. | |
| # In a dispute between the Rambam and Ra'avad, some argue the Halacha should be treated as a Safek, while others favor the Ra'avad when he is more stringent than the Rambam, and still others are willing to be lenient like the Ra'avad against the Rambam.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 41)</ref>
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| # When the Ra'avad presents a dissenting opinion with the opening of "Yesh Mi SheOmer," the Tur seems to think he actually paskens that way, but the Beit Yosef does not.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 42)</ref>
| |
| # In his inimitable style, the Ra'avad's critiques of the Rambam should not be seen as personal attacks to belittle the Rambam but rather as means of raising the red flag to warn people not to follow the rulings he felt the Rambam was mistaken in presenting.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 42)</ref>
| |
| # Neither the Rambam's Perush HaMishnayot nor Moreh Nevuchim were present before the Ra'avad, as they had not yet been translated from Arabic to Hebrew.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 43, 44)</ref>
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| # "Gedolei HaMefarshim" and "Gedolei HaMagihim" refer to the Ra'avad.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 45)</ref>
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| | |
| == Sefer Mitzvot Gadol (Semag / Samag) ==
| |
| # When quoting the Gemara, the Samag will often paraphrase to make the language flow more quickly.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 52)</ref>
| |
| # The Samag draws heavily from the Rambam for the most part<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 46)</ref> and entirely from his teacher, the Sefer HaTerumah, whose Maftechot he copied letter for letter.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 47)</ref> When in agreement with the Rambam, he writes so implicitly, and he only disagrees when out-rightly quoting the Rambam by name.<ref>So much so that the Sdei Chemed is willing to use the Samag to ascertain the correct text of the Rambam when the former doesn't disagree with the latter explicitly. Yad Malachi (Klalei HaRambam Ra'avad veSamag 48) and footnotes there.</ref>
| |
| # At the same time, most of his words are based on the Tosafot Shanz, and, for some reason, he does not seem to have seen the Tosafot Tuch.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 50)</ref>
| |
| # The Bach says the Samag's way is to rule like the Ri Baal HaTosafot.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 46)</ref>
| |
| # There's a debate if the Samag saw the Rambam's Sefer HaMitzvot or parts of it.<ref>Yad Malachi (Klalei HaRambam Ra'avad veSamag 51) and footnotes there</ref>
| |
| | |
| ==Rashi==
| |
| === Fundamentals ===
| |
| # Rashi, colloquially known as "Kuntress,"<ref>Yad Malachi (Klalei Tosafot 10)</ref> always takes the simplest Peshat of the Gemara, even if it's not in line with the accepted Halacha - even a Hava Amina rejected by the Gemara itself later on!<ref>Yad Malachi (Klalei Rashi 1), Chiddushei Rabbi Akiva Eiger Eruvin 47 and Yevamot 30b, Shu"t Rabbi Akiva Eiger Mahadurah Kamma 222:8. See Minchat Chinuch Mitzvah 116 and Tzitz Eliezer vol 8 Siman 32.</ref>
| |
| # Along the same lines and by no means in disparagement of Rashi, the Radbaz alerts us that Rashi is primarily a '''Mefaresh''', not a '''Posek''',<ref>Shu"t HaRadbaz (vol. 1 Siman 109, vol. 3 Siman 510, vol. 4 Siman 108/1180)</ref> so much so that he doesn't even register as a Shitah when deciding a Machloket between Rishonim, such as the Rosh and Rambam.<ref> Beit Yosef (Orach Chaim 10). See Matnat Yado ad loc for extensive citations.</ref>, though some disagree.<ref>Sheyarei Kenesset HaGedolah (Klalei HaPoskim 19). Regarding saying Kim Li KeRashi,
| |
| see Sdei Chemed Klalei HaPoskim 8:9</ref><ref>Yad Malachi (Klalei Rasi 2)</ref>
| |
| # In his inimitable and calculated pithiness, Rashi negates numerous difficulties with the understanding of the Gemara with just a few words. This is very much part of Rashi's claim to fame.<ref>Yad Malachi (Klalei Rashi 4). See also Shem HaGedolim (Gedolim, Shin 35).</ref>
| |
| # Rashi made multiple editions of his commentaries, which accounts for the apparent contradictions.<ref>Yad Malachi (Klalei Tosafor 22)</ref>
| |
| # One cannot pose the tradition of the Geonim as a question on Rashi - "Gavra Agavra KaRamit?!"<ref>Kenesset HaGedolah (Yoreh Deah 124 Hagahot Beit Yosef 104, Yad Malachi (Klalei Rashi 3)</ref>
| |
| # Whenever Rashi uses the words כלומר he is offering that particular interpretation where one would have been able to offer an alternative one.<ref>Pri Toar Yoreh Deah 21:2, Matnat Yado on Yad Malachi Klalei HaRif fn. 104</ref>
| |
| # When Tosafot attacks Rashi with a series of difficulties from later Masechtot, one could argue Rashi assumes the Gemara at this point isn't working with them in mind.<ref>Yad Malachi (Klalei Tosafot 9)</ref>
| |
| | |
| === Works Not by Rashi ===
| |
| # The commentary on Divrei HaYamim is not by Rashi.<ref>Yad Malachi (Klalei Rashi 7)</ref>
| |
| # The commentaries on the side of the Gemara where Rashi should be on Masechtot Meilah, Nazir, and Nedarim, are not by Rashi.<ref>Yad Malachi (Klalei Rashi 7). See Matnat Yado ad loc who quotes some who say that the commentary on Nedarim is Rashi until Daf 22, and then substituted with Rabbeinu Gershom Meor HaGolah for the remainder of the Masechet and the Netziv (Ha'Emek She'elah She'elta 166) who holds that the commentary was written by the Rivan.</ref>
| |
| # There is a debate among Acharonim if the commentary of Rashi on Masechet Ta'anit is authentic or not; it seems that many Acharonim assume that it indeed is by Rashi.<ref>Matnat Yadot (Klalei Rashi fn. 20) quotes the Maharatz Chayut (beginning and end of Taanit) who says it's not Rashi, but the Chidah says the large number of printing errors are misleading.</ref>
| |
| # The commentary Rashi on the Rif was compiled by a later student based heavily on Rashi.<ref>Yad Malachi (Klalei Rashi 5), Elyah Rabbah (Orach Chaim 540:8). See Maamar Mordechai 557 at the beginning who thinks it may have been R' Yehoshua Boaz. See also Maadanei Yom Tov (Berachot 8 at the end), Shem HaGedolim (Gedolim, Shin 35), Birkei Yosef Orach Chaim 15, Sdei Chemed (Klalei HaPoskim 8:7), and [http://www.otzar.org/wotzar/book.aspx?108106&pageid=P0108 Rav Avraham Havatzelet's article in Moriah (19:1/2, pages 106-116)] at length.</ref>
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| | |
| ==Tosafot==
| |
| === Jargon ===
| |
| # Beyond the surface level understanding of their words, the Rishonim imbued layers of implicit teachings in their words. There is often what to learn from inference, in addition to the basic understanding.<ref>Yad Malachi (Klalei Tosafot 15), though, his words are somewhat cryptic also.</ref>
| |
| # Sometimes Tosafot will argue "Ein Lehakshot" - not to pose a question - but not provide the reasoning, thereby leaving it to the reader to derive the answer or they find it in a parallel Tosafot.<ref>Yad Malachi (Klalei Tosafot 11)</ref>
| |
| # Even though Tosafot often poses a question with "Im Tomar" and answers it with "Yesh Lomar," there are instances where the question will be asked in the formal manner but left unanswered.<ref>Yad Malachi (Klalei Tosafot 12)</ref>
| |
| # If the primary answer presented to Tosafot's question suffers from a difficulty, an alternative answer will often be offered, prefaced by "הבה מצי לשנויי" or "הבה מצי לתרץ", that isn't subject to the other answers difficulty. This alternative answer, however, is not accepted, as it itself is vulnerable to a much greater challenge, which only the primary answer is safe from. In other words, if the main answer isn't perfect, another, weaker answer that resolves the difficulty with that answer will be suggested but not accepted, because it's subject to much stronger questions.<ref>Yad Malachi (Klalei Tosafot 19)</ref>
| |
| # In instances where two answers are offered without quoting one of the Baalei HaTosafot by name, the second answer will only be prefaced with "ועוד" if it doesn't directly contradict the previous one. If the first answer is by a named Baal HaTosafot, though, then the word "ועוד" would be appropriate regardless of the answer, to indicate that this answer is also from the aforementioned Baal HaTosafot.<ref>Yad Malachi (Klalei Tosafot 23)</ref>
| |
| # In terms of deciding which of two answers to follow, the Sheyarei Kenesset HaGedolah<ref>Klalei HaPoskim 19</ref> claims the first answer is ikar; the Chazon Nachum disagrees.<ref>Yad Malachi (Klalei Tosafot 24). Matnat Yado fn 52 has a whole list of those who agree, including Sdei Chemed (Klalei HaPoskim 9:2, Yabia Omer vol. 8 Orach Chaim vol. 4), and Taharat HaBayit vol. 3 2 page 551. See also Sdei Chamed (ibid 9:3-6) about if the answers are flipped elsewhere or if only one is presented.</ref>
| |
| # Sometimes Tosafot will pose a question with "Teimah" and leave it unanswered but not also "VeTzarich Iyun," because the answer was obvious.<ref>Yad Malachi (Klalei Tosafot 25)</ref>
| |
| | |
| === Authorship ===
| |
| # It is not uncommon to discover contradictions between comments of Tosafot across different Masechtot. For example, in one place, Tosafot will leave a question unresolved, while, in another place, it will be answered, and stil, in another location, a different answer will be presented and the other one rejected. Each side of that contradiction is in fact representing the opinion of a different Baal HaTosafot.<ref>Yad Malachi (Klalei Tosafot 20)</ref> Similarly, when two Poskim each associate a different understanding with Tosafot, one could explain that they're referring to different Baalei HaTosafot.<ref>Yad Malachi (Klalei Tosafot 8)</ref>
| |
| # Even within a Masechet, sometimes there are missing comments of Tosafot or comments of other Baalei HaTosafot mixed in, the latter of which leads to contradictions within one set of Tosafot comments.<ref>Yad Malachi (Klalei Tosafot 22)</ref> Regardless, we try to reconcile the differences as much as possible.<ref>Yad Malachi (Klalei HaPoskim 25)</ref>
| |
| # The Maharshal has a well known illustration of how Rabbeinu Tam had around eighty students of incredible caliber.<ref>Yam Shel Shlomo (Hakdama to Bava Kamma), Yad Malachi (Klalei Tosafot 20)</ref>
| |
| # The Tosafot commentary on most of the Masechtot studied originates with the Tosafot compiled by the Rash MiShantz, a compilation known as the Tosafot Shantz. However, our version was abridged by R' Elazar Tukh, whose redaction is known as the Tosafot Tukh and whose goal was to elucidate the give and take of the Gemara, not decide Halacha. Nevertheless, we follow the Tosafot Tukh over the Tosafot Shantz, because the Tosafot Tukh came later.<ref>Yad Malachi (Klalei Tosafot 14). For more on the redaction of the Tosafot we have today, see Rabbi Ephraim Kanarfogel's The Intellectual History and Rabbinic Culture of Medieval Ashkenaz (Detroit: Wayne State University Press, 2012),[http://www.hakirah.org/Vol15Leibowitz.pdf "The Emergence and Development of Tosafot on the Talmud" (Hakira vol. 15 page 143)], [http://www.hakirah.org/Vol18Leibowitz.pdf "Redacting Tosafot on the Talmud: Part I―Sources" (Hakira vol. 18 page 235)],[http://www.hakirah.org/Vol20Leibowitz.pdf "Part II―Editing Methods" (Hakira vol. 20 page 191)], and Tosafot Tukh on the Talmud: A Critical Analysis of R. Eliezer of Tukh's Tosafot Redaction and Marginalia by Rabbi Dr. Aryeh Leibowitz</ref>. In fact, some say that we should follow the Tosafot on the more major masechtot, such as Yevamot, over the Tosafot on smaller Masechtot, because the former are from the Tosafot Tukh.<ref>Yad Malachi (Klalei Tosafot 22)</ref>
| |
| # The Tosafot commentary to Yoma comes from the Maharam Rutenberg.<ref>Yad Malachi (Klalei Tosafot 17)</ref>
| |
| # There is a debate if Tosafot and Rabbeinu Tam are considered two separate entities or not with respect to Kim Li and other Halachic calculations.<ref>Yad Malachi (Klalei Tosafot 27)</ref>
| |
| | |
| === Misc. ===
| |
| # Chochmei HaTzarfatim according to many refers to Baalei HaTosafot, although some are unsure.<ref>Yad Malachi (Klalei Tosafot 21)</ref>
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| | |
| == Rosh ==
| |
| === General Style ===
| |
| # The Piskei Rosh are essentially summaries of the Tosafot on the Daf, so each can be used to complement the other in terms of understanding and drive. Where Tosafot is vague and the Rosh is clear or vice versa, one can rely on the clearer explanation to be a worthy interpretation of the vague one's words. Often times, the Rosh does not deviate from their position.<ref>Yad Malachi (Klalei HaRosh 30), see Matnat Yado fn. 68 for the list of those who subscribe to this view and the few who claim the Rosh will quote Tosafot even though he doesn't agree with them.</ref>
| |
| # The Rosh primarily focuses on Sevarot accepted leHalacha and ignores those that are not. According to the Kenesset HaGedolah, if he presents two positions without deciding, it's because he's unsure which should be accepted.<ref>Yad Malachi (Klalei HaRosh 33)</ref> Sometimes, he'll present two interpretations, because he thinks they're both true.<ref>Yad Malachi (Klalei HaRosh 43)</ref> As such, his position will be vague, so we can logically infer he follows the majority of Poskim. Additionally, his son, the Tur, has the credibility to tell us what his father's position was in practice.<ref>Yad Malachi (Klalei HaRosh 38)</ref>
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| # The Rosh mainly is drawn after the Rif except perhaps by explanations of Mishnayot, in which case he often prefers the Rash's understanding.<ref>Yad Malachi (Klalei Rosh 28, 31). See Matnat Yado fn 62 who adds that there's a discussion regarding when the Rif is a Daat Yachid if we should assume the Rosh still stands with him or of we should count the Rosh with those who disagree. There's also a general issue of how the Rosh originally wrote his Pesakim, as a commentary on the Rif with the direct quotes added in later (Tekafo Kohen 46, Korban Netanel (Klalim 2)) or like we have it (Shem HaGedolim HaRosh). Sdei Chemed (Klalei HaPoskim 11:2) points out how the Chatam Sofer did not have the Shem HaGedolim to be aware of this approach. See Yad Malachi (Klalei HaTalmud 510, 517) and "Contradictions" below.</ref>
| |
| # The Rambam's understanding of Im Timtzi Lomar as Halacha is not accepted by the Rosh, who posits that even those who accept it must admit that further levels are only accepted if they are consistent with the positions of the previous ones.<ref>Korban Netanel (Klalim 9, 10)</ref> Bach argues that Rosh will agree that when presented with four questions, two of which are Im Timtzi Lomar, that their standing out indicates the Gemara is following them.<ref>Yad Malachi (Klalei HaRosh 35)</ref>
| |
| # An additional answer or through will be introduced with merely a "Vav," such as "וקמשמע לן" - and we ''also'' learn.<ref>Yad Malachi (Klalei HaRosh 39)</ref>
| |
| # If an elucidation of the Gemara is not presented by the Rosh against Rashi, we assume he agrees with Rashi.<ref>Yad Malachi (Klalei HaRosh 42)</ref>
| |
| # The breakup of Shu"t HaRosh into Klalim was done by later individuals, not the Rosh.<ref>Yad Malachi (Klalei HaRosh 44)</ref>
| |
| === Contradictions ===
| |
| # Just as Ein Seder LaMishnah in the days of Tannaim, meaning they didn't compile Shas in the order it now exists in, so, too, Rishonim didn't necessarily learn and write on Shas in order. It's therefore possible for an initial position to be written in a commentary to a later Masechet and the retracted corrected one to be presented in an earlier Masechet. This knowledge allows us to resolve difficulties in the Rosh and other Rishonim.<ref>Yad Malachi (Klalei HaRosh 34)</ref>
| |
| # Given two contradictory statements in the Piskei HaRosh, some Poskim recommend following the one that fits with the Rif, but according to the Shach, if one is just an instance of parroting the Rif and the other is the Rosh speaking for himself, the latter should be followed.<ref>See Shulchan Aruch Yoreh De'ah 15 and commentaries at length and above discussion from Tekafot Kohen. Yad Malachi (Klalei HaRosh 29)</ref>
| |
| # To resolve contradictions between the Piskei HaRosh and Shu"t HaRosh, the Tur<ref>Tur Choshen Mishpat 72</ref> and his brother Rabbeinu Yehudah ben HaRosh<ref>Beit Yosef Yoreh Deah 341 and Choshen Mishpat 110</ref> say and the Bach<ref>Bach Yoreh Deah 334:10</ref> postulates that the Piskei HaRosh were written later, so they should be followed over the Teshuvot. The Beit Yosef<ref>Beit Yosef Yoreh Deah 201 s.v. Aval Rabbeinu and Yoreh Deah 341</ref> disagrees.<ref>See Beit Yosef Orach Chaim 12, Shu"t Beit Yosef Even HaEzer Siman 2, and Maggid Meisharim (Parashat Vayakhel, Rosh Chodesh Nissan 296) where he actually writes to follow the Pesakim and not the Teshuvot, unless it's clear that the individual Teshuvah was written later. See also Shu"T Maharanach Siman 46 and Shu"t Meishiv Davar vol. 1 Siman 24. Yalkut Mefarshim on Yad Malachi ad loc</ref> The Maharil<ref>Shu"t Maharil Siman 77</ref> argues the Teshuvot should be followed, because they were formulated in the context of Horaah.<ref>Korban Netanel (Klalim 18). See sources cited in Yad Malachi (Klalei HaRosh 46) and Matnat Yado ad loc at length.</ref> The Kenesset HaGedolah writes how even according to the former view, if the conflicting Teshuva is based on additional, seemingly seen afterwards, sources, then we would follow the Teshuvah.<ref>Yad Malachi (Klalei HaRosh 37)</ref> Rav Yosef Yedid HaLevi adds that these rules are only applicable when it's an explicit contradiction, if not we rather reconcile the two.<ref>Vayechi Yosef Gittin page 67 col. 3, Matnat Yado fn. 93, see Yad Malachi (Klalei Rosh 40) who writes similarly in the name of the Bach.</ref>
| |
| | |
| ===Acceptance===
| |
| # Many testify to the grand acceptance of the Rosh throughout Spain, which the Kenesset HaGedolah argues is true even over the Rambam and Riaz. Meanwhile, the Radbaz recommends to at least follow the Rosh whenever the Rambam is unclear. He adds that the Halacha follows the Rosh against the Rashba, as the former came later.<ref>Yad Malachi (Klalei HaRosh 36)</ref>
| |
| | |
| === Misc. ===
| |
| # Uncharacteristically, the Rosh on Bava Kamma does not quote all the Gemaras and Piskei Dinim, but, rather, quotes the Gemara concisely when needed to discuss a novel idea.<ref>Yad Malachi (Klalei HaRosh 41)</ref>
| |
| # Sometimes, the Hagahot Ashri on the Rosh is commenting on the Gemara itself, not the Rosh, and may even be disagreeing with him.<ref>Yad Malachi (Klalei HaRosh 45)</ref>
| |
| | |
| == Tur ==
| |
| === General Approach ===
| |
| # Like his father the Rosh, the Tur only discusses matters that are relevant to Halacha.<ref>Yad Malachi (Klalei HaTur 1)</ref> Moreover, only cases mentioned or hinted to in the Talmud are discussed in the Tur.<ref>Yad Malachi (Klalei HaTur 14)</ref> Of the topics discussed, he writes the spectrum of positions that arise in the Talmud, Geonin, and Poskim.<ref>Yad Malachi (Klalei HaTur 14)</ref>
| |
| # Halachot whose source Gemarot have unresolved textual variants (Safek Girsaot) are omitted by the Tur.<ref>Yad Malachi (Klalei HaTur 17)</ref>
| |
| === Writing Style ===
| |
| # Some say that if the Tur omits a Halacha from its appropriate context, one cannot infer that he still accepts it based on a Halacha written in a different context of the Tur, because this is its proper place. For example, if a certain Halacha about lighting Shabbat candles doesn't appear in the Siman about candlelighting, one cannot infer it based on a Halacha in a different, unrelated Siman. Others disagree.<ref>Yad Malachi (Klalei HaTur 3) and Matnat Yado fn. 4</ref> At the same time, some say the Tur will directly quote the Rambam or a different Rishon's articulation of a ruling, though he himself does not completely subscribe to the ruling and all its details, because he's relying on having written his own view in a different location.<ref>Yad Malachi (Klalei HaTur 11)</ref>
| |
| # At the same time, the Tur will outline a debate between the Rosh and other Rishonim in one Siman and then assume like the Rosh's position on the issue in other Simanim without mentioning the other opinion.<ref>Yad Malachi (Klalei HaTur 27)</ref>
| |
| # When writing how a Rishon concurs with a statement, the Tur will use the language "Al Derech Zeh Katav HaRambam" to means that it's not exactly the Rishon's Shitah, but similar - i.e. there are some differences. "Ken Katav HaRambam" is an indication the Rishon entertains the same position.<ref>Yad Malachi (Klalei HaTur 12)</ref>
| |
| # The Tur himself concurs with a previously stated ruling when he writes "Nireh Li" to introduce the next idea, while the language "Li Nireh" introduces his own dissenting opinion.<ref>Yad Malachi (Klalei HaTur 13)</ref>
| |
| # Sometimes, a ruling will be written in the name of the Rambam, even though it's explicit in the Gemara, because the Rif and Rosh omitted it.<ref>Yad Malachi (Klalei HaTur 19)</ref>
| |
| # When the Tur or another Posek responds to a statement he quotes with "I don't know why" (איני יודע למה), it is not a sufficient indication of his disagreement.<ref>Yad Malachi (Klalei HaTur 25)</ref>
| |
| # The Tur will point out how the Rosh is unlike the Rambam but not the Rif.<ref>Yad Malachi (Klalei HaTur 29)</ref>
| |
| # Poskim of the same position are grouped together. The entire group of one position is outlined first, and then the next group.<ref>Yad Malachi (Klalei HaTur 31)</ref>
| |
| ==== Stam vaYesh and Yesh veYesh ====
| |
| # In line with the general rule, know colloquially as "Yesh veYesh Halacha KeYesh Batra," the Acharonim write how one should follow the last of a series of positions presented by the Tur. The Yad Malachi<ref>Yad Malachi (Klalei HaTur 5)</ref> adds how this is also written regarding the Rif, the Tur's understanding of the Rosh, and the Samag, but he notes how the Beit Yosef takes contradictory approaches to this with respect to the Rosh. In the Tur, this is true when it's "Yesh Omrim... veYesh Omrim..." or "So and so says this, ''and'' so and so says that;" however, If it's a case of "Stam vaYesh, then the Halacha follows the Stam<ref>Korban Netanel (Klalim 5)</ref>
| |
| # The rule is most compelling when the two positions are not listed in chronological order.<ref>Yad Malachi (Klalei HaTur 7)</ref>. Some say this is true even regarding Shulchan Aruch.<ref>Matnat Yado fn. 24</ref>
| |
| # If the verbiage is of the formulation "LeDaat Ploni Assur u'leDaat Ploni Muttar," this rule does not apply.<ref>Yad Malachi (Klalei HaTur 8)</ref>
| |
| # Independently of the "Yesh veYesh" rule, if the Tur writes "Aval" to introduce an additional position, it's an indication that this is the opinion he accepts.<ref>Yad Malachi (Klalei HaTur 9)</ref>. However, if he elucidates the reasoning of the first opinion before introducing the second, there's firm reason to believe he leans towards the first one as primary. This Klal also has import in understanding the position of the Beit Yosef when he records debates among the Rishonim.<ref>Yad Malachi (Klalei HaTur 10)</ref>
| |
| ==== When Quoting Baalei HaTosafot and Rosh ====
| |
| # If the position of the Rashba quoted by the Tur contradicts what the Rashba himself writes in his Sefarim, the former is actually the Rash MiShantz, not Rav Shlomo Ben Aderet.<ref>Yad Malachi (Klalei HaTur 2)</ref>
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| # When the Tur writes "My father decided this way" based on proofs, then the idea has import to other topics, as well, while "This is my father's conclusion" does not.<ref>Perishah Choshen Mishpat 182:14, Korban Netanel (Klalim 4)</ref>
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| # The Tur always follows his father's view when he writes "And my master, my father wrote this way, as well" (כן כתב אדוני אבי הרא"ש). As above, in general, he follows the last position presented in a series of opinions, unless the first opinion was written anonymously. This is in line with the common rules of "Yesh veYesh" always following the last one and "Stam vaYesh Halacha KeStam."<ref>Korban Netanel (Klalim 5)</ref>
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| # The Tur will attribute the unsourced statement of the Rosh to one of the Baalei HaTosafot, such as the Ri.<ref>Yad Malachi (Klalei HaTur 16)</ref>
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| # Ri (ר"י) without a Heh refers to R' Yitzchak Baal HaTosafot, and HaRi (הר"י) with a Heh refers to Rabbeinu Yonah.<ref>Yad Malachi (Klalei HaTur 18)</ref>
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| # "Ken Daat Adoni Avi" (כן דעת אדוני אבי) means the idea is not explicit in the Rosh; "Ken Katav Adoni Avi" (כן כתב אדוני אבי) does. Similarly, "Lo Katav Adoni Avi HaRosh Ken" (לא כתב אדוני אבי הרא"ש כן) means that it's not understood from the Rosh.<ref>Yad Malachi (Klalei HaTur 20)</ref>
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| # There is a fleet of Acharonim who assert the Tur does not disagree with his father without doing so explicitly; therefore, we always work hard to reconcile any inconsistencies.<ref>Yad Malachi (Klalei HaTur 23). It is noteworthy, however, that the Taz Yoreh Deah 240:2 elucidates that the Tur does disagree with his father a number of times in Choshen Mishpat but does so by quoting someone else of the same position as his father and disagreeing with that Rishon instead. This way, it's "Shelo beFanav," in terms of Hilchot Mora Av.</ref>
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| # Even if there are those who disagree with the Rosh, the Tur will not necessarily quote them to contrast.<ref>Yad Malachi (Klalei HaTur 24)</ref>
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| # Rosh's position is usually quoted last, not first, to indicate this is the position the Tur accepts.<ref>Yad Malachi (Klalei HaTur 30)</ref>
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| # Although the Rosh might agree with the position of the Baalei HaTosafot, the Tur will suffice with quoting the position in name of Tosafot and not mention the Rosh's agreement.<ref>Yad Malachi (Klalei HaTur 32)</ref>
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| # Wherever the Tur writes "And my father the Rosh would say..." (ואדוני אבי הרא"ש ז"ל היה אומר), the Beit Yosef often points out how it was an oral communication between father and son, not a written ruling. <ref>Yad Malachi (Klalei HaTur 34). See Sdei Chemed (Klalei HaPoskim 12:7) for a discussion of this rule and its exceptions. Matnat Yado fn. 99. Same is true for "היה מתיר."</ref>
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| === Kitzur Piskei HaRosh ===
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| # The Kitzur Piskei HaRosh were written by the Tur. When they contradict the Tur itself, the latter should be followed, as it was written later.<ref>Yad Malachi (Klalei HaTur 21)</ref>
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| # In Kitzur Piskei HaRosh, the Tur writes no more than the explicit point of the Rosh.<ref>Yad Malachi (Klalei HaTur 22)</ref>
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| === Misc. ===
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| # When referring to the Rambam, the Tur is exclusively referring to Mishneh Torah, as Perush HaMishnah was not available to him. <ref>Yad Malachi (Klalei HaTur 26), Matnat Yado fn. 87</ref>
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| # The Tur only had Torat HaBayit HaKatzar, not Aruch.<ref>Yad Malachi (Klalei HaTur 15)</ref>
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| # The Rosh Yosef<ref>Yad Malachi (Klalei HaTur 33)</ref> thought the Rav Amram mentioned in the Tur is not the same as Rav Amram Gaon, but the Chidah<ref>Shem HaGedolim vol. 2 "Seder Rav Amram"</ref> argues they indeed are the same person.
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| == Maggid Mishneh ==
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| # The Kenesset HaGedolah writes that wherever the Maggid Mishneh says he couldn't find a proof for the Rambam, he doesn't agree. <ref>Yad Malachi (Klalei HaRav HaMaggid 1)</ref> Some even say if he doesn't provide a proof, even without articulating that lack of finding, it's an indication of disagreement.<ref>Matnat Yado fn. 1</ref>
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| # A contemporary of the Rivash<ref>Shu"t HaRivash Siman 473</ref>, the Maggid Mishneh's allegiance to the Rashba<ref>Matnat Yado fn. 5 writes how the Radbaz claims he was a Talmid of the Rashba, but the Chida argues the dates don't line up.</ref> is indicative through his throrough familiarity with the Rashba's opinions. Therefore, when in doubt as to how to understand the Rashba's opinion, the Maggid Mishneh's understanding is a valuable and acceptable window to determining what the Rashba means.<ref>Yad Malachi (Klalei HaRav HaMaggid 2)</ref> Some say the opposite is therefore a valuable tool of understanding the Maggid Mishneh, as well.<ref>Matnat Yado fn 3</ref>
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| # His tremendous dedication to elucidating the Rambam gives the Maggid Mishneh credence in deciding what the true explanation is when the Rambam's position is debatable, according to the Radbaz.<ref>Yad Malachi (Klalei HaRav HaMaggid 3)</ref>
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| # The Rivash posits that when the Maggid Mishneh refers to the Rambam as "HaMechaber" and not "Rabbenu," it indicates lack of satisfaction with the Rambam's position on his part,<ref>Shu"t HaRivash Siman 168, Shu"t HaRashbetz vol. 4 Tur 3 Siman 2 end of s.v. ואין לומר, Yad Malachi (Klalei HaRav HaMaggid 4)</ref> but the Chidah argues that the verbiage is arbitrary.<ref>Shem HaGedolim Maarechet Vav Ot 4. See Sdei Chemed (Klalei HaPoskim 7:1), [http://www.hebrewbooks.org/pdfpager.aspx?req=56124&st=&pgnum=207&hilite= Kovetz Ohr Yisrael (vol. 54 page 207)], and Matnat Yado fn. 7 at length</ref>
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| # The first three Perakim of Maggid Mishneh on Hilchot Gerushin (until Halacha 9) were not extant even in the times of the Maggid Mishneh himself; what we have printed was probably written by a student, not the Maggid Mishneh himself.<ref>See the last line of Shu"t HaRivash Siman 117. The Kessef Mishneh (Hilchot Ishut 3:5) even refers to the commentary as the Mefaresh. Yad Malachi (Klalei HaRav HaMaggid 5)</ref>
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| # Maggid Mishneh doesn't usually refer to Perush HaMishnayot.<ref>Yad Malachi (Klalei HaTur 26) and Matnat Yado ad loc fn. 88</ref>
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| == Migdal Oz ==
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| # Many Acharonim, including the Maharshal, Radbaz, and Shach, have disparaging things to say about the Migal Oz, but the Yad Malachi minimizes the context of their complains to his responses to the Raavad's challenges to the Rambam. Indeed, the Koreh HaDorot praises the Migdal Oz, R' Shem Tov,<ref>Regarding the story with the Ritva, it's actually about the Maggid Mishneh, whose name was also Yom Tov, unlike the Migdal Oz, whose name was Shem Tov. See [http://www.hebrewbooks.org/pdfpager.aspx?req=46874&st=&pgnum=139 Toldot Chachmei Yisrael (Shulman, vol. 3 page 137)]</ref> for his great erudition and familiarity with Nigleh and Nistar.<ref>Yad Malachi (Klalei HaMigdal Oz 8). See Matnat Yado ad loc for the whole list of citations.</ref>
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| == Ramban ==
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| # Ramban first wrote his disagreements on the Sefer HaMitzvot and then his Sefer.<ref>Kesef Mishneh Hilchot Chametz uMatzah 1:6, Yad Malachi Yalkut Mefarshim.</ref>
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| == Rashba ==
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| # The Rashba had editions of Tosafot other than the one printed on the page of our Gemaras.<ref>Yad Malachi (Klalei HaRashba 2)</ref>
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| # In Avodat HaKodesh, the Rashba writes "יראה לי" when referring to Halachot from the Yerushalmi, Tosefta, and anything else not mentioned in Talmud Bavli.<ref>Pri Chadash Orach Chaim 498:9, Yad Malachi (Klalei HaRashba 3)</ref>
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| # The Mishmeret HaBayit was written by the Rashba,<ref>Yad Malachi (Klalei HaRashba 4)</ref> but it wasn't in print at the times of the Beit Yosef, Rama, and Maharshal for them to see it.<ref>Matnat Yado fn. 10</ref>
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| # The Baalei HaTosafot and Rashba share a similar approach, therefore, if the Rashba copies Tosafot, it's a sign of agreement.<ref>Yad Malachi (Klalei HaRashba 5)</ref>
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| # The extent Shu"t HaRasha are a condensed version of the original.<ref>Yad Malachi (Klalei HaRashba 6)</ref>
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| # Maharashdam relates often how his rebbe, Maharitatz would weigh the Rashba's position on a matter equal to the majority of Poskim.<ref>Yad Malachi (Klalei HaRashba 7)</ref> Similar statements are made by Rav Yosef Karo and the Radbaz.<ref>Matnat Yado 18-19. See Sdei Chemed (Klalei HaPoskim 10:3) regarding the practical applications of this approach.</ref>
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| == Ritva ==
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| The Ritva's primary teacher was the Ra'ah, but he studied under the Rashba, as well.<reF>Yad Malachi (Klalei HaRitva 9)</ref>
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| == Ran ==
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| === Style ===
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| # For the most part, the Ran and the Rosh's words are the same, especially when elucidating Tosafot's position.<ref>Yad Malachi (Klalei HaRan 13)</ref>
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| === Contradictions ===
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| # The Ran wrote his Chiddushim on Shas when he was younger and his commentary on the Rif when he was older<ref>Matnat Yado 38</ref>, so it's possible that he came to a deeper understanding of a topic and changed his mind the second time around. Therefore, one should follow the commentary on the Rif if it contradicts the Chiddushim. The Yad Malachi extends this to the Teshuvot, as well.<ref>Yad Malachi (Klalei HaRan 10)</ref>
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| # In terms of internal contradictions, the Ran's style in his commentary on the Rif is to copy sections of Rashi anonymously but write an alternative approach elsewhere. He won't necessarily explicate the fact that he disagrees when quoting Rashi.<ref>Yad Malachi (Klalei HaRan 10). See Sdei Chemed (Klalei HaPoskim 4:1)</ref>
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| === Works Not by the Ran ===
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| # Despite some Acharonim referring to the commentary on the side of the Rif on Masechtot Bava Kamma, Bava Metzia, Bava Batra, Makkot, and Moed Kattan as the Ran, they are in fact the Nimukei Yosef.<ref>Yad Malachi (Klalei HaRan 12), though the Beit Yosef also writes this way in Choshen Mishpat, perhaps one could argue he knew it was by the Nimukei Yosef but continued to call it the Ran, as that was what common people thought, similar to his attitude towards Shu"t HaRamban HaMeyuchasot that are really the Rashba</ref>
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| == Further Reading == | | == Further Reading == |
| * Koreh HaDorot, Ahavat Shalom edition with footnotes of the Chida | | * Koreh HaDorot, Ahavat Shalom edition with footnotes of the Chida |
| * Kenesset HaGedolah, Klalei HaPoskim | | * Kenesset HaGedolah, Klalei HaPoskim |
| * Yad Malachi, especially the Machon Yerushalayim annotated edition | | * Yad Malachi, especially the [http://www.machon-y.com/VSHOP/WSHOP.wzx?UC=machonj&SingleItem=%e9%e3%20%ee%ec%e0%eb%e9&category=Empty Machon Yerushalayim annotated edition] |
| * Yair Ozen / Ein Zocher, by the Chida | | * Yair Ozen / Ein Zocher, by the Chida |
| * Shem HaGedolim, by the Chida | | * Shem HaGedolim, by the Chida |
| Line 252: |
Line 108: |
| * Sdei Chemed, Klalei HaPoskim (in some editions, vol. 6, page 55, and [http://www.hebrewbooks.org/pdfpager.aspx?req=14151&st=&pgnum=123 vol. 9, page 125] in others) | | * Sdei Chemed, Klalei HaPoskim (in some editions, vol. 6, page 55, and [http://www.hebrewbooks.org/pdfpager.aspx?req=14151&st=&pgnum=123 vol. 9, page 125] in others) |
| * [http://www.hebrewbooks.org/56802 Ein Yitzchak vol. 1], by Rav Yitzchak Yosef | | * [http://www.hebrewbooks.org/56802 Ein Yitzchak vol. 1], by Rav Yitzchak Yosef |
| | | * על ספרים וסופרים by Rav Yaakov Chaim Sofer, Rosh Yeshivat Kaf HaChaim and grandson of the Kaf HaChaim [Parts [http://www.hebrewbooks.org/pdfpager.aspx?req=46425&st=&pgnum=685 I], [http://www.hebrewbooks.org/pdfpager.aspx?req=46426&st=&pgnum=667 II], [http://www.hebrewbooks.org/pdfpager.aspx?req=53557&st=&pgnum=886&hilite= III]] |
| ==Sources== | | == Sources== |
| {{Reflist|30em}} | | {{Reflist}} |
| [[Category:Klalim]] | | [[Category:Rules for Determining Halacha]] |
