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Klalei HaPoskim: Difference between revisions
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→Rosh: im timtzi lomar, stirahs, acceptance
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# 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> | # 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> | ||
# 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 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> | # 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: 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> | ||
=== Contradictions === | === 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> | # 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 Yoreh De'ah 15 and commentaries at length and above discussion from Tekafot Kohen. Yad Malachi (Klalei | # 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 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> says 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 341</ref> disagrees.<ref>Korban Netanel (Klalim 18)</ref> | # To resolve contradictions between the Piskei HaRosh and Shu"t HaRosh, the Tur<ref>Tur Choshen Mishpat 72</ref> says 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 341</ref> disagrees.<ref>Korban Netanel (Klalim 18)</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</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> | |||
== Tur == | == Tur == | ||
