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Beitzah 5

1) AN EGG ON THE SECOND DAY OF ROSH HA'SHANAH: "HA LAN V'HA LEHU"

QUESTION: The Gemara says that after the Takanah of Raban Yochanan ben Zakai, who reinstated the initial practice that Beis Din may accept witnesses all day, even after the time of Minchah, who are testifying about the new moon, an egg laid on the second day of Rosh ha'Shanah should be Mutar. Since the Takanah that required that there be two days of Rosh ha'Shanah -- not out of doubt but in the event that witnesses came after Minchah time (and therefore their testimony was accepted only on the morrow, thus requiring that both days be declared as Rosh ha'Shanah, with one long Kedushah) -- is no longer in effect, the only reason why two days of Rosh ha'Shanah are observed is because of the doubt which day is really the first of the month.

The Gemara explains that when Rav and Shmuel said that an egg laid on the second day of Rosh ha'Shanah is Asur nowadays, even after Raban Yochanan ben Zakai's Takanah, they were referring to "us" and not to "them." Rashi explains that "them" refers to the people in Eretz Yisrael. Since they did not have the practice of observing two days of Rosh ha'Shanah every year, but only when the witnesses arrived after Minchah time, nowadays that witnesses are accepted after Minchah time, there is never two days of Rosh ha'Shanah in Eretz Yisrael. In contrast, the people in Bavel (outside of Eretz Yisrael) have always observed two days of Rosh ha'Shanah, out of doubt when the new month was declared in Yerushalayim, and thus those two days retain the status which they had during the time of the original Takanah (not to accept witnesses after Minchah time), and thus the two days of Rosh ha'Shanah have one long Kedushah. As such, an egg laid on the first day will be Asur on both days.

Why does the Gemara differentiate only between the people of Bavel and the people of Eretz Yisrael? Even in Eretz Yisrael, the people in most places must observe two days of Rosh ha'Shanah, because they did not know exactly when the Beis Din in Yerushalayim declared the new month. Beis Din could not inform any of the places that were beyond the Techum, beyond which one may not travel on Yom Tov. Both before and after the Takanah not to accept witnesses after Minchah time, most places in Eretz Yisrael observed two days of Rosh ha'Shanah, and therefore those days should have one long Kedushah!

ANSWERS:

(a) The BA'AL HA'ME'OR and the ME'IRI write that "them" refers not to the people in Eretz Yisrael, but to the people who live in Yerushalayim, within the Techum of the Beis Din that declares the new month.

Rashi, though, mentions nothing about Yerushalayim, and differentiates only between the people in Bavel and the people in Eretz Yisrael, implying that all of the people in Eretz Yisrael, no matter where they are, had the same practice. How could this be, if those places outside of the Techum of Beis Din had to keep two days of Rosh ha'Shanah just like the people in Bavel, while the places near Beis Din observed only one day?

(b) Perhaps RASHI understood that since it is possible to declare the new month in any part of Eretz Yisrael, therefore every place in Eretz Yisrael follows the location of the Beis Din which declares the new month and has the same status as that place (as the ME'IRI remarks in reference to another matter, see Insights #3). After the Takanah of Raban Yochanan ben Zakai, the place that Beis Din declares the new month would have two days of Rosh ha'Shanah with *two* Kedushos. Therefore, in the rest of Eretz Yisrael as well, the two days of Rosh ha'Shanah would not be one long Kedushah but two separate Kedushos.

5b

OPINIONS: The Gemara states that an enactment instituted by Beis Din can only be rescinded through the annulment of Beis Din ("Davar sh'b'Minyan Tzarich Minyan Acher l'Hatiro"). Without the annulment, the enactment will not be canceled even when the cause for the enactment is no longer extant. When does this principle apply, and to what extent?

(a) RASHI in Sanhedrin (59b) writes that this rule applies even when the original enactment was made for a set amount of time. Even after the time has passed, the enactment remains in force until a Beis Din annuls it. It does not become annulled by itself, even though it was made contingent on a specific period of time.

Rashi's proof for this is from the source quoted by our Gemara for this rule. Hashem commanded the Jewish people to separate from their wives for three days before Matan Torah. Even though this commandment was specified to apply for only three days, nevertheless it needed an annulment from Hashem in order to permit the men to return to their wives.

Rashi, as quoted by the AGUDAH, was also stringent in a case of a Cherem (excommunication) made by Beis Din against a certain act. Even if the Cherem was limited to a certain amount of time, the act remains forbidden by the Cherem even after the time period has passed.

(b) The other Rishonim reject this approach, saying that Hashem did not command the men to separate from their wives *for three days*, but rather to separate from their wives *in honor of the event that was to occur after three days*. Thus, the commandment was not bound by a given amount of time. TOSFOS (Sanhedrin 59b) writes that Rashi himself rescinded his opinion. Indeed, Rashi in our Sugya (5b, DH Hachi ka'Amar) and on the Chumash (Shemos 19:15) explains that this is the meaning of "for three days."

Therefore, these Rishonim write that a Takanah limited to a certain period of time does *not* need a Beis Din to annul it. It becomes annulled by itself when the time has passed, both in the case of a Takanah and in the case of a Cherem. The only time a special annulment is necessary is when the wording of the original enactment did not specify that the Takanah should become annulled if certain circumstances change, or if the wording did not specify that the Takanah was made for a certain reason.

(c) The SHITAH MEKUBETZES here differentiates between an enactment to prohibit something (Takanas Isur) and an enactment of Cherem. A Cherem requires the annulment of Beis Din even if a time limit was given to it, because it is very severe. He proves this from the Gemara in Makos (11b) that says that a Cherem Al Tenai (a Cherem against a person that takes effect on condition that he does or does not do a certain thing) needs to be annulled by Beis Din even if the condition is not fulfilled. For example, Yehudah accepted upon himself a Cherem that he would bring Binyamin back to his father (that is, if he did not bring Binyamin back, the Cherem would take effect). Even though he did bring Binyamin back, the Cherem took effect (and the bones of Yehudah rolled around in the coffin).

Other Rishonim refute this proof from Yehudah. The RITVA in Makos writes that Yehudah did not completely fulfill the condition upon which the Cherem was contingent. He did not bring Binyamin all the way back to his father; he merely left him with Yosef until his father came to Yosef (as the PANE'ACH RAZA in Bereishis 45:23 says), and only in such a case does the Cherem remain. Had Yehudah completely fulfilled the condition, the Cherem would have been annulled automatically, without the need for Beis Din to annul it.

HALACHAH: It is not clear from the Poskim to what extent a decree needs a Beis Din in order to annul it. The DARCHEI MOSHE (YD 231) seems to be Machmir like Rashi, that even a Cherem or Takanah which was enacted for a specific amount of time needs the annulment of Beis Din. The SHULCHAN ARUCH (YD 334:13, 27) seems to be Machmir even in the case of a Cherem upon an individual, and maintains that it will not become annulled by itself, even after its stated time period has passed.

OPINIONS: At the time of the Gemara, when the Beis Din declared the new month based on the testimony of witnesses who saw the new moon, the people in the areas outside of the place of the Beis Din had to observe two days of Rosh ha'Shanah. This was because they had a doubt as to which day was declared as the new month, and Beis Din could not notify them since they were outside of the Techum of Beis Din. Nowadays, we use a calendar, and the day of the new month is determined by astronomical mathematics. It is a Halachah l'Moshe m'Sinai that when there is no Beis Din declaring the new month, then we use a set calendar. Accordingly, we always know exactly which day is Rosh ha'Shanah, well in advance, and there is no doubt that the next day might be Rosh ha'Shanah.

In all areas outside of Eretz Yisrael, we observe two days of Rosh ha'Shanah because of the principle of "Minhag Avoseinu b'Yadeinu" (4b) -- the Rabanan decreed that we follow the practice of our fathers, who kept two days of Rosh ha'Shanah in Chutz la'Aretz during the time that Beis Din was Mekadesh the Chodesh in Yerushalayim. As the Gemara (4b) explains, it was instituted that people in Chutz la'Aretz keep "Minhag Avoseihem b'Yedeihem" lest the difficult subjugation under the nations cause us to forget the proper way to calculate the new month. In the place of the Beis Din, they certainly never had any practice to observe two days because they knew exactly when the new month occurred. Should the people in Yerushalayim today also observe only one day of Rosh ha'Shanah?

What about in the rest of Eretz Yisrael? On one hand, they observed two days, because they did not know when Beis Din was Mekadesh the Chodesh. On the other hand, nowadays that we know exactly when the new month occurs, and we do not find that it was instituted to keep "Minhag Avoseinu b'Yadeinu" in Eretz Yisrael, perhaps the people in Eretz Yisrael should observe only one day.

How many days of Rosh ha'Shanah should be observed in Eretz Yisrael and in the place of the Beis Din?

(a) The BA'AL HA'ME'OR writes in the name of the TESHUVOS HA'GE'ONIM that the people in Eretz Yisrael sent a question to the Ge'onim regarding whether they were correct in their practice of observing only one day of Rosh ha'Shanah. The Ge'onim replied simply that "Minhag Avoseichem b'Yedeichem," that they have the practice of their fathers in their hands, clearly implying that their practice of keeping one day was correct. The Ba'al ha'Me'or writes that even though, now, the people in Eretz Yisrael keep two days of Rosh ha'Shanah, they do so only in error, based on a misconception introduced by the sages of Provence based on. the Rif.

Why, though, should all of Eretz Yisrael keep one day? Outside of the place of the Beis Din, they certainly must have observed two days of Rosh ha'Shanah during the period that Beis Din was Mekadesh the Chodesh based on testimony of witnesses! Now, then, they should also observe two days, just like the people in Chutz la'Aretz.

The ME'IRI explains that in Eretz Yisrael, the Rabanan were not concerned that foreign subjugation would cause the people to forget how to calculate the new month. Therefore, the Rabanan never instituted the practice of following the Minhag of their fathers, for only in Chutz la'Aretz is there a fear that the people will forget how to calculate the new month. In addition, the rest of Eretz Yisrael follows the status of the place of Beis Din (see Insight 1:b, above).

(b) The ME'IRI implies that in Yerushalayim, the Ba'al ha'Me'or is correct, and one should observe only one day of Rosh ha'Shanah there because there never was a "Minhag Avoseinu" there. In the rest of Eretz Yisrael, though, one should observe two days, because "Minhag Avoseinu" does apply.

(c) The RAMBAN (in Milchamos) strongly opposes the view of the Ba'al ha'Me'or and writes that in Eretz Yisrael, the people should observe two days of Rosh ha'Shanah. He writes that the Ba'al ha'Me'or misunderstood the Teshuvah of the Ge'onim. When they replied that the people in Eretz Yisrael should keep the Minhag of their fathers, they were not referring to the Minhag of observing one day of Rosh ha'Shanah, but rather they were referring to the Minhag (4b) of observing *two* days in Eretz Yisrael when Beis Din was Mekadesh the Chodesh based on the testimony of witnesses. The Ramban does not differentiate between Yerushalayim and the rest of Eretz Yisrael in this matter.

Why should they keep two days even in Yerushalayim nowadays, considering that there never was a practice to observe two days there? Perhaps the Ramban holds that since the place where they were Mekadesh the Chodesh did not *have* to be Yerushalayim but could be any place in Eretz Yisrael, it cannot be considered the custom of Yerushalayim to observe only one day of Rosh ha'Shanah -- there is no single place which we can say observes only one day. Therefore, all of Eretz Yisrael keeps two days, including Yerushalayim.

Another reason why the principle of "Minhag Avoseihem" applies even in Yerushalayim is because even there, when witnesses did not come on the first day, two days of Rosh ha'Shanah would be observed (according to Rashi here, two days would be observed when witnesses came after Minchah on the first day, even after the Takanah of Raban Yochanan ben Zakai -- see Background to the Daf). Even though it did happen on occasion that witnesses came early on the first day, and only one day of Rosh ha'Shanah was observed, nevertheless since it sometimes happened that the witnesses came later and two days were observed, it is considered the "Minhag Avoseihem" to keep two days of Rosh ha'Shanah in Yerushalayim.