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Eruvin 97

1) HALACHAH: FINDING TEFILIN, OLD AND NEW

OPINIONS: The Mishnah (95a) states that if one finds a pair of Tefilin, on Shabbos, outside of the settled area, he should bring it to a safe place in the city (which is a Reshus ha'Yachid) by wearing it in the manner that one normally wears Tefilin. The Mishnah adds that this applies only with regard to "Yeshanos" (old Tefilin) and not to "Chadashos" (new Tefilin). The Gemara suggests two ways of understanding the difference between old Tefilin and new ones.

According to the first approach (that of Rava, 96b), the Mishnah is referring to Tefilin that have straps that are not tied into the knots of Tefilin. "Chadashos" means that one does not see any sign on the straps indicating that they were *ever* tied into a knot. "Yeshanos" means that one can see that the straps were once knotted and now they are just untied. When one does not any signs of a knot altogether, we assume that it is just a Kamei'a, because a person *does*, at times, go to the trouble to make a Kamei'a in the form of Tefilin. If one sees that the straps were knotted once, one may assume that they are Tefilin (because no one would bother to make a Kamei'a that looks like Tefilin *and* go to the trouble of tying it like a Tefilin, Tosfos DH v'Chi).

The Gemara then (97a) introduces a new approach, cited from the teachings of Avuha d'Shmuel. He explains that "old" Tefilin refers to Tefilin that already have their knots tied. One merely has to don them and wear them home. "New" Tefilin refers to Tefilin that do not have the knots of their straps tied. One may not bring them home because one is not allowed to make knots on Shabbos, and to wear them without making the knots is not considered "wearing" Tefilin, but carrying them. (One may not even make an Anivah, a bow.) There is no choice but to leave the Tefilin where they are.

What is the Halachah?

(a) A simple reading of the Sugya leads us to conclude that the Halachah is like Avuha d'Shmuel, since the Gemara appears to reject Rava's suggestion in favor of his ("v'Hashta d'Tani..."). Tefilin without their knots are left behind because one may not tie them and wear them on Shabbos. This is indeed the ruling of TOSFOS (DH Abaye Amar), the BA'AL HA'ME'OR, and the RA'AVAD (Hilchos Shabbos 19:24, Hilchos Tzitzis 2:7). Consequently, the Halachah is that we do *not* assume that a person will bother to make a Kamei'a to look Tefilin or make strings that look like Tzitzis.

(b) The RIF, ROSH and RAMBAM (Hilchos Shabbos 19:24, Hilchos Tzitzis 2:7) rule that if one finds knotted Tefilin he may wear them home, and if the straps were not knotted, then he must leave the Tefilin where they are *because we assume* that they are a Kamei'a.

These Rishonim seem to mix together the Gemara's two explanations. On one hand, they accept the explanation of Avuha d'Shmuel, who differentiates between when the straps are knotted and when they are not knotted. On the other hand, they seem to rule that when the straps are not knotted, we are afraid that it is a Kamei'a! Where did they get that from? The Gemara says a different reason (according to Avuha d'Shmuel) -- if they are not knotted, one may not wear them on Shabbos since he may not tie their knots! In addition, the Rambam rules that if one finds short strands dyed with Techeles, he may not use them for Tzitzis, since a person *will* go to the trouble of making strings in a garment which look like Tzitzis.

In fact, when the Rambam was confronted by "Chachmei Lousiere" about his ruling with regard to Tzitzis, he responded in a Teshuvah that he apologizes for the mistake and that he misread his manuscript when preparing the draft for publication. Indeed, the Halachah is that a person does *not* bother to make strings like Tzitzis (or a Kamei'a like Tefilin).

However, the VILNA GA'ON (OC 301:42) points out that the Rambam's ruling with regard to Tzitzis is indeed valid. In fact, his ruling follows that of the Rif, his Rebbi, and the source of most of the Rambam's rulings (Introduction of the Rambam to Mishnah). This is borne out by the Rambam's ruling in Hilchos Shabbos, where he says explicitly that a person *does* go to the trouble to make a Kamei'a like Tefilin (like the Rif). But how did the Rif and Rambam understand our Sugya?

1. The RAMBAN (Milchamos) explains that Rava is not arguing with Avuha d'Shmuel when he says that we are afraid that one makes Kamei'a look like Tefilin. Rather, he understands Avuha d'Shmuel differently. He understands Avuha d'Shmuel's reason, when he says that one may not take home Tefilin that do not have knots, to be because we are afraid that the Tefilin are a Kamei'a -- and *not* simply because it is forbidden to make a knot on Shabbos. (Even though Abaye says that the reason one may not take the Tefilin home when they are not tied according to Avuha d'Shmuel is because one may not tie a knot on Shabbos, Rava understood Avuha d'Shmuel's reasoning differently. When Rava and Abaye argue, the Halachah follows Rava.)

2. The VILNA GA'ON (OC 301:42) explains that the Rif derived his ruling from the Mishnah. Although it is true that Rebbi Yehudah maintains that one may not take home Tefilin that are not tied because of the prohibition against tying on Shabbos, that cannot be the reason of the Mishnah. The Mishnah says that one is "*Patur*" from taking the Tefilin home; if the reason one may not take them is because the straps are not knotted, that means that the Tefilin still have Kedushas ha'Tefilin. Even if one cannot carry them home, he should still have to wait there until after Shabbos! Why, then, does the Mishnah say that he is "Patur," i.e. he is exempt from any obligation with regard to these Tefilin? It must be that we assume that it the Tefilin are really a Kamei'a, and not Tefilin, like Rava's ruling.

Abaye, who says that the reason one may not take the untied Tefilin home is because one may not tie the straps, was explaining the reason according to Rebbi Yehudah in the Beraisa. The Beraisa says that Rebbi Yehudah is "*Oser* ba'Chadashos" -- he *forbids* taking them home, that is, because one is forbidden from tying them. The Mishnah and Beraisa are giving two separate reasons, reflecting two entirely different Halachos, when they say that one may not take home new Tefilin.

97b