Minhag: Difference between revisions
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# A minhag to recite a certain bracha even if it is questionable according to the halacha can be left and not protested.<ref>Gemara Tanait 28b tells the story of Rav who went to Bavel and didn't say anything when he heard the congregation reciting [[Hallel]] on [[Rosh Chodesh]] even though presumably they recited it with a bracha. Pri Chadash 496:2:10 quotes the Maharik (Shoresh 9) who cites this as a proof that one can follow a minhag even against the halacha. The Pri Chadash disagrees and answers that reciting a bracha is different. Since a [[Bracha Levatala| bracha sheino tzaricha]] is only rabbinic and if there's a minhag the rabbis can say that it is permitted to recite a bracha for the sake of a minhag as we find in Beitzah 4b for [[Yom Tov Sheni]].</ref> | # A minhag to recite a certain bracha even if it is questionable according to the halacha can be left and not protested.<ref>Gemara Tanait 28b tells the story of Rav who went to Bavel and didn't say anything when he heard the congregation reciting [[Hallel]] on [[Rosh Chodesh]] even though presumably they recited it with a bracha. Pri Chadash 496:2:10 quotes the Maharik (Shoresh 9) who cites this as a proof that one can follow a minhag even against the halacha. The Pri Chadash disagrees and answers that reciting a bracha is different. Since a [[Bracha Levatala| bracha sheino tzaricha]] is only rabbinic and if there's a minhag the rabbis can say that it is permitted to recite a bracha for the sake of a minhag as we find in Beitzah 4b for [[Yom Tov Sheni]].</ref> | ||
# Generally when a minhag is in violation of the halacha, whether it be Biblical or rabbinic, it should be abolished.<ref>Pri Chadash 496:2:10 based on several gemara's as well as a Rivash. Other proofs include: Ritva Pesachim 51a s.v. vkatav citing the Raah, Radvaz 1:359. However, Lev Avot Lebhar p. 14 tries to prove that we don't follow the Pri Chadash's approach. He quotes that he personally heard from Rav Elyashiv this as well. He also cites Rav Elyashiv in Kovetz Teshuvot 1:60 with a similar idea. He supports his approach with the Petach Dvir OC 2:233 that any practice which can be justified with some opinion should be left alone. Other proofs include: Sdei Chemed 40:37 s.v. hamuram quoting the Zera Yakov, Maharam Paduah 78, and Maharashdam YD 193.</ref> Some, however, hold that if it is an established minhag and it is only in violation of a rabbinic prohibition can be left alone.<ref>Pri Chadash 496:2:10 cites the Masa Hamelech and Bear Sheva who thought that if a minhag is only in vioaltion of a rabbinic prohibition it can be upheld. Rabbi Akiva Eiger in his comments to Pri Chadash there questions the proof of the Pri Chadash from Rosh Hashana 15b against the Masa Hamelech and in fact claims that it is a proof against the Pri Chadash.</ref> | # Generally when a minhag is in violation of the halacha, whether it be Biblical or rabbinic, it should be abolished.<ref>Pri Chadash 496:2:10 based on several gemara's as well as a Rivash. Other proofs include: Ritva Pesachim 51a s.v. vkatav citing the Raah, Radvaz 1:359. However, Lev Avot Lebhar p. 14 tries to prove that we don't follow the Pri Chadash's approach. He quotes that he personally heard from Rav Elyashiv this as well. He also cites Rav Elyashiv in Kovetz Teshuvot 1:60 with a similar idea. He supports his approach with the Petach Dvir OC 2:233 that any practice which can be justified with some opinion should be left alone. Other proofs include: Sdei Chemed 40:37 s.v. hamuram quoting the Zera Yakov, Maharam Paduah 78, and Maharashdam YD 193.</ref> Some, however, hold that if it is an established minhag and it is only in violation of a rabbinic prohibition can be left alone.<ref>Pri Chadash 496:2:10 cites the Masa Hamelech and Bear Sheva who thought that if a minhag is only in vioaltion of a rabbinic prohibition it can be upheld. Rabbi Akiva Eiger in his comments to Pri Chadash there questions the proof of the Pri Chadash from Rosh Hashana 15b against the Masa Hamelech and in fact claims that it is a proof against the Pri Chadash.</ref> | ||
# A minhag established by local rabbis even if others hold that it is against the halacha, many hold that it shouldn't be abrogated.<ref>Mordechai b"m 7:366, Radvaz 3:532 based on Maharik 9</ref> | |||
# For example, see the discussions of piyutim during [[Birchot Kriyat Shema]] in OC 68 between the Tur, Bach, and Bet Shaarim whether it is right to upkeep the minhag even though it seems to be problematic in terms of [[hefsek]]. | # For example, see the discussions of piyutim during [[Birchot Kriyat Shema]] in OC 68 between the Tur, Bach, and Bet Shaarim whether it is right to upkeep the minhag even though it seems to be problematic in terms of [[hefsek]]. | ||
===Minhagim that Choose a Side in a Halachic Dispute=== | ===Minhagim that Choose a Side in a Halachic Dispute=== | ||
# If a certain halacha isn't clear and there is justifiable basis on either side of the dispute or question at hand, one can view the minhag in order to decide the dispute.<ref>Yerushalmi Peah 7:5, Gemara Brachot 45a. Rambam Shemitta Vyovel 10:6 writes that in calculating the calendaric years of Shemitta he differs from the Geonim in his calculations. Nonetheless, he concludes that since the Geonim have an old tradition for their calculations and the practice is like them, great is the significant of tradition to follow them. Rav Hai Goan in Tamim Deyim 119 seems also to subscribe to this approach in that he first defends the minhag and says that generally you first have to accept minhagim even under question and then answer the questions. He then goes on to justify the particular minhag in question. Tosfot Brachot 21b disagrees with Rashi's practice and yet concludes that the minhag follows Rashi and great is the minhag that we can follow it. Halichot Shlomo ch. 19 fnt. 27 cited by Magen Avot p. 15 cites the the Shoel Umeishiv responded to the Shem Aryeh that although his responses were reasonable he sometimes disagreed because he knew that the practice was otherwise and he tried to explain the basis for the minhag. Rav Shlomo Zalman agreed with such an approach.</ref> | # If a certain halacha isn't clear and there is justifiable basis on either side of the dispute or question at hand, one can view the minhag in order to decide the dispute.<ref>Yerushalmi Peah 7:5, Gemara Brachot 45a. Rambam Shemitta Vyovel 10:6 writes that in calculating the calendaric years of Shemitta he differs from the Geonim in his calculations. Nonetheless, he concludes that since the Geonim have an old tradition for their calculations and the practice is like them, great is the significant of tradition to follow them. Rav Hai Goan in Tamim Deyim 119 seems also to subscribe to this approach in that he first defends the minhag and says that generally you first have to accept minhagim even under question and then answer the questions. He then goes on to justify the particular minhag in question. Tosfot Brachot 21b disagrees with Rashi's practice and yet concludes that the minhag follows Rashi and great is the minhag that we can follow it. Halichot Shlomo ch. 19 fnt. 27 cited by Magen Avot p. 15 cites the the Shoel Umeishiv responded to the Shem Aryeh that although his responses were reasonable he sometimes disagreed because he knew that the practice was otherwise and he tried to explain the basis for the minhag. Rav Shlomo Zalman agreed with such an approach.</ref> | ||
#A minhag is binding if it involves a stringency above the actual strict law. However, generally speaking, a minhag to follow one opinion on a matter that is a dispute in the Rishonim isn't a binding minhag.<ref>[http://www.hebrewbooks.org/pdfpager.aspx?req=14145&st=&pgnum=78&hilite= Sdei Chemed (v. 4, Maarechet Mem, Klal 37)]</ref> | #A minhag is binding if it involves a stringency above the actual strict law. However, generally speaking, a minhag to follow one opinion on a matter that is a dispute in the Rishonim isn't a binding minhag.<ref>[http://www.hebrewbooks.org/pdfpager.aspx?req=14145&st=&pgnum=78&hilite= Sdei Chemed (v. 4, Maarechet Mem, Klal 37)]</ref> Therefore, if one local rabbi ruled in one way and the minhag followed his opinion and later that rabbi moved or died and another rabbi was appointed and had another opinion the minhag can be changed.<ref>Pri Chadash 496:2:2 (Dinei Minhagei Issur #2) based on Maharashdam YD 40</ref> | ||
==Non-Binding Minhagim== | ==Non-Binding Minhagim== | ||
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==Abrogating Minhagim== | ==Abrogating Minhagim== | ||
===Minhag in Error=== | |||
#If a person has a practice in error, some say that it isn't binding and one doesn't require [[hatarat nedarim]]. However, others say that it is binding and in order for it to become permitted one would require [[hatarat nedarim]]. The halacha follows the first opinion. <ref>Tosfot Pesachim 51a s.v. Iy and the Rosh (Pesachim 4:3) hold that a minhag that is based on an error isn't binding at all and may be abrogated without any [[hatarat nedarim]]. Their proof is the gemara Chullin 6b. The Ran (Pesachim 17a) and Rashba (responsa 3:236) hold that a minhag made in error is binding and can only be broken with [[hatarat nedarim]]. Each opinion differs in how they understand the Yerushalmi Pesachim 4:1 which states that a minhag made in error can be abrogated. The Rosh would understand it to mean that it can be abrogated without any formal process. The Ran, however, would explain the Yerushalmi as saying that it could only be broken with [[hatarat nedarim]]. Shulchan Aruch YD 214:1 quotes the Rosh as the primary opinion but also cites the Ran. The Rama follows the Rosh. Also, the Pri Chadash (Dinei Minhagei Issur #1) writes that the halacha is like the Rosh and brings proofs to that effect.</ref> | |||
===Using Hatarat Nedarim=== | |||
#A person who has a meritorious minhag, some say that it can never be broken, while others say that it can break that minhag with [[hatarat nedarim]]. The halacha follows the second opinion. <ref>Tosfot Pesachim 51a s.v. Iy and the Rosh (Pesachim 4:3) hold that a meritorious minhag is binding like a neder but can be broken with [[hatarat nedarim]]. However, the Ran (Pesachim 17a) and Rashba (responsa 3:236, cited by Bet Yosef YD 214:1) hold that minhagim can't be broken if they are meritorious. The two opinions differ in how they understand the Yerushalmi Pesachim 4:1 which says that a good minhag can't be abrogated. The Rosh understands it to mean that without [[hatarat nedarim]] it can't be broken. The Ran, however, understands the Yerushalmi more absolutely; a good minhag can not be broken. Another proof for the Ran is the Yerushalmi Nedarim 5:4 which forbids permitting a neder against gambling, even though theoretically some say there is no prohibition with gambling (see Sanhedrin 24b). Shulchan Aruch Y.D. 214:1 rules like the Rosh. The Pri Chadash 496:2:1 (Dinei Minhagei Issur #1) also rules like the Rosh but wonders why Shulchan Aruch YD 228:15 rules like the Rivash, who follows the Ran.</ref> | |||
#The above dispute is relevant to a minhag that is intended to protect an existing halacha, however, everyone agrees that a minhag out of piety or abstinence can be broken with [[hatarat nedarim]].<ref>Pri Chadash (Dinei Minhagei Issur #1) proves this from the language of the rishonim who forbid abrogating a minhag as well as the fact that the Ran Nedarim 81b writes that a minhag can be broken with a hatarat nedarim although he generally holds (Pesachim 17a) that it is forbidden.</ref> | |||
#It is possible to abrogate a minhag with [[hatarat nedarim]] even if it is established by rabbis.<ref>Pri Chadash 496:2:4 (Dinei Minhagei Issur #4)</ref> | |||
# | ===Communal Minhagim=== | ||
# | #A communal minhag that is meritorious can only be broken if majority of the community does [[hatarat nedarim]]. An individual can't abrogated the minhag if he does a personal [[hatarat nedarim]].<ref>Pri Chadash (Dinei Minhagei Issur #5)</ref> | ||
#If a community has a practice, there is a dispute to what extent it applies to the next generation. One opinion holds that the minhag is not binding upon the next generation unless they have observed it one time.<ref>Zichron Yosef YD 14 cited by Pitchei Teshuva YD 214:5</ref> On the opposite end, some say the minhag is binding upon the children and it is impossible for them to do [[hatarat nedarim]] on that minhag because they weren't the ones who instituted it.<ref>Maharshdam YD 40, Maharik 144</ref> In the middle are those who say that the minhag is binding upon the next generation but they can do [[hatarat nedarim]] just like the previous generation could.<ref>Pri Chadash (Dinei Minhagei Issur #8)</ref> | |||
===Universal Minhagim=== | |||
#A minhag that was accepted by all Jews can't be broken by a [[hatarat nedarim]].<ref>Pri Chadash (Dinei Minhagei Issur #6) citing Sh"t Maharshal 7</ref> | #A minhag that was accepted by all Jews can't be broken by a [[hatarat nedarim]].<ref>Pri Chadash (Dinei Minhagei Issur #6) citing Sh"t Maharshal 7</ref> | ||
===Parent's Minhag=== | |||
#If one's parent had a meritorious practice, it is not binding upon the children unless they observe the practice one time, either in the life of their parent or after their death. <ref>Pri Chadash (Dinei Minhagei Issur #7) based on the Gemara Chullin 105a</ref> | #If one's parent had a meritorious practice, it is not binding upon the children unless they observe the practice one time, either in the life of their parent or after their death. <ref>Pri Chadash (Dinei Minhagei Issur #7) based on the Gemara Chullin 105a</ref> | ||
==Changing Minhagim== | ==Changing Minhagim== | ||
