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Minhag: Difference between revisions
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[[Image:minhag.png|200px|right]] | [[Image:minhag.png|200px|right]] | ||
A minhag is a local or communal practice of halacha. Minhagim are of such significance that we even find that the angels<ref>Gemara Bava Metsia 86b, Yismach Moshe Beresheet 1:11</ref> and even Hashem himself follow the local practice, minhag.<ref>Sanhedrin 46b, Maharam Mintz (teshuva 54)</ref> Hashem likes a variation of minhagim just as he wanted different tribes each encamped around the Mishkan with a different role.<Ref>Shlah Torah Shebichtav Naso quoting the Arizal</ref> | A minhag is a local or communal practice of halacha. Minhagim are of such significance that we even find that the angels<ref name=":0">Gemara Bava Metsia 86b, Yismach Moshe Beresheet 1:11</ref> and even Hashem himself follow the local practice, minhag.<ref name=":1">Sanhedrin 46b, Maharam Mintz (teshuva 54)</ref> Hashem likes a variation of minhagim just as he wanted different tribes each encamped around the Mishkan with a different role.<Ref>Shlah Torah Shebichtav Naso quoting the Arizal</ref> | ||
==What are minhagim based on?== | ==What are minhagim based on?== | ||
<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">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> | ||
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==Abrogating Minhagim== | ==Abrogating Minhagim== | ||
===Minhag in Error=== | ===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> | #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> | ||
=== Minhag that is Against the Halacha === | |||
# Any minhag which is even slightly against the halacha may be abrogated. For example, if a person has a minhag not to eat meat on Shabbat during the three weeks or not to go fishing on chol hamoed in order to have fish to eat on chol hamoed he may abrogate that minhag.<ref name=":1" /> However, some poskim may imply otherwise.<ref name=":0" /> | |||
===Using Hatarat Nedarim=== | ===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> | #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> | #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> | #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> | ||
