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Klalei HaPoskim: Difference between revisions
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→Tur: pasken like the rosh stam, rosh agreeing with tosafot, disagreement with rambam pointed out, rav amram, grouping poskim, rosh is last, Rosh Haya Omer
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== Tur == | == Tur == | ||
=== General Approach === | === 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> | # 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> | # Halachot whose source Gemarot have unresolved textual variants (Safek Girsaot) are omitted by the Tur.<ref>Yad Malachi (Klalei HaTur 17)</ref> | ||
=== Writing Style === | === 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> | # 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> | # 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> | # 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> | # 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 ==== | ==== 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> | # 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> | ||
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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> | # 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> | ||
# 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> | # 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> | ||
# 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> | |||
# 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> | |||
# 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> | |||
=== Kitzur Piskei HaRosh === | === Kitzur Piskei HaRosh === | ||
# 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> | # 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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# 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> | # 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> | ||
# The Tur only had Torat HaBayit HaKatzar, not Aruch.<ref>Yad Malachi (Klalei HaTur 15)</ref> | # The Tur only had Torat HaBayit HaKatzar, not Aruch.<ref>Yad Malachi (Klalei HaTur 15)</ref> | ||
# 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. | |||
== Maggid Mishneh == | == Maggid Mishneh == | ||
