Minhag: Difference between revisions

<p class="indent">Why are minhagim binding? In what capacity do we have to observe them? To answer these questions we are going to explore the halachic foundations upon which minhagim are based. There are two primary approaches to explain the obligation for minhagim. The first is based on a Gemara Nedarim 81b which states that one who violates a minhag is in a violation of a neder. The Ran (ibid.) explains that if a person practices a good practice with intention of continuing to keep that practice, rabbinically it is considered as though he took a vow and he is forbidden from breaking that vow. In order for the vow to be effective biblically he would have to enunciate it, however, rabbinically it is sufficient to have acted upon the intent to keep the practice.<ref>Tur and Shulchan Aruch 214:1 cite the approach of the Ran. Birkei Yosef YD 214 also points out that it is only treated like a neder and is binding rabbinically. Thus, if there is a doubt if something is prohibited based on a minhag, one may be lenient.</ref></p>  

<p class="indent">The second approach to explain minhagim is based on a Gemara Pesachim 50b. The gemara relates a story in which the people of Bayshan took upon themselves a practice to refrain from traveling on Friday so as not to come to desecrate Shabbat. The next generation, however, found this practice too cumbersome and inhibited their ability to make a livelihood. Yet, when they asked Rabbi Yochanan if they could abolish this practice they were told that they should not disregard the practices of their parents citing a pasuk from Mishlei 1:8. The gemara implies that there is an inherent issue with breaking from communal practices and particularly apply to later generations. From the fact that the Gemara doesn't cite the violation of breaking a vow as the Gemara Nedarim does it seems that the Gemara Pesachim believes that there is another binding force of minhagim.<ref>The Ramban (Mishpat HaCherem, cited by the Bet Yosef YD 214:2) describes minhagim as communal acceptances and doesn't use the language of vows.</ref> Rav Hershel Schachter<ref>Nefesh HaRav (p. 235)</ref> cites Rav Moshe Soloveitchik as having explained that the Rambam's opinion was that minhagim are binding because the act of breaking the minhag is an issue of separating from the community, which in it of itself is a problem.<ref>Pirkei Avot 2:4. See Nefesh HaRav where he explains that separating from the community is a way of breaking from the tradition in which the Torah was meant to be kept. The Torah was given to Bnei Yisrael as a unit (see Rashi Shemot 19:2) and should be kept that way. A person who deviates from communal practices is in essence causing the Torah to be perverted.</ref></p>

<p class="indent">Now that we have examined two approaches to minhagim, let us explore a few potential applications and see how each approach relates to that case. First, do minhagim apply to halachic scenarios? That is, what happens when minhag and halacha clashes? For example, there is a major discussion in the rishonim and achronim whether there is an obligation to wear Tefillin on Chol HaMoed. Let's suppose that I usually follow a certain Rabbi or sefer for my halachic questions and he says that I should wear Tefillin on Chol HaMoed, but my father's minhag is not to wear Tefillin, what should I do? According to the first approach, it is reasonable to assume that a community can only take upon themselves vows in gray areas of halacha. For example, the Gemara points out that a person may not vow to abrogate a mitzvah because that simply isn't up to his discretion. Similarly, the halachic question of wearing Tefillin on Chol HaMoed shouldn't be one decided upon by a community and its vow shouldn't be binding.<ref>This position is endorsed by the Sdei Chemed (v. 4, n. 38) and Yabia Omer O.C. 2:23. Both express the idea that the institutors of the minhag may not have the ability to be a decider of halacha to arbitrate between the rishonim. In such a case, the minhag is not binding. According to this opinion, as opposed to issues of minhag, on issues of halacha a person should follow his personal Rebbe Muvhak like the [http://www.hebrewbooks.org/pdfpager.aspx?req=14334&pgnum=367 Chazon Ish YD 150:1] writes.</ref>However, according to the second approach it is possible that a community's practice is binding even in areas of halacha because however the practice was established, the individual should be restricted from breaking from the communal practices.<ref>In fact, the Ohr Letzion (v. 2, p. 17-8 and v. 1, 5:7) advocates this approach with reservation. He explains that the community of Rabbi Yose HaGlali ate cheese and chicken together because the opinion of Rabbi Yose was that it was permitted even though the other Rabbis forbad it. Even after Rabbi Yose died, they followed his opinion, says the Or Letzion, because once they practice in accordance with his opinion before it was known to be a dispute, for that community it remains a permitted activity and do not need to consider the other opinion. One of his proofs is the Rambam (Shmitta VeYovel 10:6) who writes although he believes that the halacha does not follow the geonim in their count of the Shmitta cycle, because the practice is like the geonim, the practice should continue.</ref></p>

<p class="indent">Does a person who moves communities need to continue his old practices or should he follow the customs of the place he entered? If one were to suppose that minhagim are like vows, it is logical that the vows should follow a person wherever he may be. However, if minhagim are a way of observing local customs, then upon moving one should adopt the local practices. In reality, everyone agrees that upon moving one should change his customs to follow the place where he plans on staying.<ref>Shulchan Aruch YD 214:2</ref> It could be explained by supposing that the way communal vows work is that they only apply to a person while he is still part of that community.</p>

<p class="indent">Are minhagim binding if they were instituted in error? The Gemara Chullin 6b tells of a story in which Rabbi Yehuda HaNasi came to Beyt Shan and permitted the people not to take Trumot and Maaserot from their crops being that it was not part of Israel. However, the gemara asks how could Rabbi Yehuda HaNasi abrogate their minhag? To this the gemara answers that sometimes a later rabbi is given the opportunity to say something that no one before has said. Tosfot Pesachim 51a s.v. Iy though is bothered because this gemara seems to disregard the entire principle behind minhagim. Tosfot explains that minhagim are only binding when formulated with the correct knowledge of halacha and the minhag is just an added restriction or practice. However, if the community mistakenly thought something is forbidden when it is in reality permitted, that isn't a minhag at all. Seemingly, this idea fits nicely with the approach of communal vows because vows aren't binding when taken in error.<ref>Shulchan Aruch YD 232:10. See Mishna Nedarim 25b.</ref></p>

<p class="indent">Lastly, is it possible to have a temporary minhag? If we assume that minhagim are based on vows, then certainly yes, because it is possible to stipulate that a certain vow should only apply for a certain amount of time.<ref>It is clear from chazal that one may stipulate a vow to apply to a certain time period. A simple proof is the Mishna Nedarim 57a. Additionally, Shulchan Aruch YD 214:1 implies that if one has a practice that one only plans on doing a couple of times and not forever, it isn't binding as an oath, yet to any question, one should stipulate so explicitly. </ref> However, if we suppose that minhagim are based on not breaking from the practices of the everlasting Jewish community, then perhaps it is impossible for minhagim to be temporary just as biblical and rabbinic laws are permanent in nature. Yet, it seems that everyone can agree that minhagim could be instituted temporarily because minhagim are very much based on intent and if the community never accepted the practice with intent that it should last forever, reasonably it should be limited.<ref>The concept that minhagim can have a limited time-frame is shown in Shulchan Aruch YD 228:27.</ref></p>

==When minhagim clash with halacha==