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Pesachim 52

1) HALACHAH: A PERSON WHO COMES FROM ISRAEL KEEPING TWO DAYS OF YOM TOV OUTSIDE OF ISRAEL

OPINIONS: The Gemara establishes that one who normally observes only one day of Yom Tov (such as a resident of Eretz Yisrael) must refrain from doing Melachah for two days of Yom Tov when he finds himself outside of Israel in a Jewish community that observes two days of Yom Tov. Why must one conduct himself like the residents of the place he is in, and to what extent does this Halachah apply?

(a) The RAMBAM (Hilchos Yom Tov 8:20) does not distinguish between the Minhag of refraining from Melachah on the second day of Yom Tov outside of Israel and observing any other Minhag. He simply writes, with regard to all Minhagim, that if a person has intention to return to his original place then he may conduct himself according to the Minhag of his original place, however, he should not do Melachah where others will see him doing it in order to avoid Machlokes, as our Mishnah (50a-b) says. Presumably, according to the Rambam one who comes from Eretz Yisrael is permitted to do Melachah on Yom Tov Sheni in Chutz La'aretz in private. This is indeed the conclusion of a number of authorities (TAZ, citing MAHARSHAL, in OC 496:2; Harav Ovadyah Yosef in YECHAVEH DA'AS 3: 35.)

(b) TOSFOS (52a, DH b'Yishuv, see also RAN) writes that the Minhag of refraining from Melachah on Yom Tov Sheni is more stringent than other Minhagim, because it is not possible to do Melachah in private without it becoming known that Melachah was done. (Even though there are some Melachos that can be done quietly without anyone knowing about them, the Rabanan did not differentiate and they forbid all Melachos in private, -Machtzis ha'Shekel OC 496:4.) Therefore, wherever Melachah is forbidden, it is forbidden even in private.

However, it is not clear exactly in which cases Melachah is normally forbidden in private. TOSFOS (51a, DH Iy Ata) points out an apparent contradiction. The Mishnah states unequivocally that one must conduct himself according to the Chumra of the place at which he has arrived, because he must avoid causing Machlokes. However, the Gemara says that the reason one must conduct himself according to the Chumra of the place is because of the Kusim in that place, who will misunderstand one's practice to be lenient and they will permit other things which really are forbidden. The Gemara seems to be saying a different reason than the Mishnah!

Tosfos cites the RI who explains that the Mishnah is talking about a "Minhag Chashuv," that is, a Minhag with a strong basis. One may not be lenient with regard to such a Minhag even in front of Talmidei Chachamim who understand one's reason for being lenient even if he does not plan on returning his original residence. On the other hand, one *may* be lenient and permit a Minhag which does not have a strong basis but is based on a mistake or on a practice that evolved without the consent of the Chachamim. However, even such a Minhag may not be permitted in front of Kusim.

Next, citing the RASHBA (RABEINU SHIMSHON M'SHANTZ), Tosfos says that the Mishnah is talking about when the person does *not* have intention to return to his original place ("Ein Da'ato Lachzhor"), in which case he takes on the Minhag of the place at which he has arrived whether its populace is learned or ignorant, since it is as if he has already become a member of that community. When he has intention to return, though, he does not take on the Minhag of the new place unless there are Kusim there. (This also appears to be the ruling of the RAMBAN in Milchamos Hashem.)

The Minhag of Yom Tov Sheni fits the criteria of being a Minhag with a strong basis (see Beitzah 4b). Therefore, according to the RI, one who comes from Eretz Yisrael to Chutz la'Aretz would have to take on that Minhag in order to avoid Machlokes, even if one intends to return to Eretz Yisrael. The RASHBA, though, is more lenient. According to the RASHBA, only if one does not intend to return to Eretz Yisrael does he have to observe the second day of Yom Tov in Chutz la'Aretz. If he intends to return to Eretz Yisrael, then he may do Melachah on the second day of Yom Tov as long as there are no Kusim in the place, but only Talmidei Chachamim.

As mentioned above, Tosfos holds that with regard to the second day of Yom Tov, wherever Melachah is forbidden, it is forbidden even in private. Consequently, one may not do Melachah even in private at all according to the RI -- even when there are no Kusim around -- and according to the RASHBA he may not do Melachah in private in a place where there are Kusim.

(c) The BA'AL HA'ME'OR explains that when the Mishnah says that one must be stringent and follow the Minhag of the place in order to avoid causing Machlokes, it really means that one must be stringent *only in a place where there are Kusim*. Accordingly, it should be permitted to do Melachah on Yom Tov Sheni in a place in which only Talmidei Chachamim reside. However, the Ba'al ha'Me'or explains that the Minhag of refraining from Melachah on Yom Tov Sheni is a stronger Minhag than any other, and therefore one must be stringent and refrain from Melachah even in a place where there are only Talmidei Chachamim. (The Acharonim understand this to mean that even in private one may not do Melachah.) If so, not only is Melachah prohibited on private on Yom Tov Sheni, but in all aspects Yom Tov Sheni must be kept when in Chutz l'Aretz, even in private.

(d) The RA'AVAD on the RIF writes that when a resident of Eretz Yisrael travels to Chutz la'Aretz, there is no question of which one of the two Minhagim should one choose -- to do Melachah on Yom Tov Sheni or not to do Melachah on Yom Tov Sheni. There is no such thing as a Minhag for a resident of Eretz Yisrael to do Melachah in Chutz la'Aretz on Yom Tov Sheni. That is, even someone from Eretz Yisrael has a Minhag to keep Yom Tov Sheni *when in Chutz la'Aretz*. The Ra'avad apparently learns our Gemara like TOSFOS in Sukah (43a; see Insights to 51b) that even people from Eretz Yisrael have a Minhag to keep two days of Yom Tov when they are in a place where the messengers of Beis Din cannot reach. In other words, their Minhag is that *when they go to Chutz la'Aretz*, they keep two days of Yom Tov.

HALACHAH: The SHULCHAN ARUCH (OC 468:4) rules like TOSFOS, that one must be stringent even in front of Talmidei Chachamim (like the RI) and in private as well (Mishnah Berurah 468:14). If one is in an area outside the Techum of the nearest Jewish community ("Midbar"), then he is permitted to do Melachah. This is assuming that he has intention to return to his original place. If he does not intend to return, then he keeps the Minhagim of Chutz la'Aretz right away, even in a Midbar before reaching the Jewish community. (See also SHULCHAN ARUCH 496:3.)

QUESTION: The Gemara at first understands that Rebbi Yehudah of the Mishnah holds that one does not have to perform Bi'ur on fruit which was brought to a place in which that type of fruit no longer can be found in the fields, if in the place from which the fruit originated it has not yet disappeared from the fields. The Gemara challenges this interpretation from the beginning of the Mishnah, which states that one is required to observe the stringencies of the place which one visits.

RASHI (DH v'Leis Lei) goes to lengths to address an obvious problem with this Gemara. The Mishnah says that one must observe the stringencies of the place which he visits in order *to avoid causing Machlokes*. But in this case, there is no Machlokes to cause! Here, it is simply a question of whether the fruits in the place from which one came are still in the fields or not. "Machlokes" applies only when one person or group does not accept the stringent Halachic considerations of another group. It does not apply to the case of Shemitah fruits, since the fruits coming from out of town are under different circumstances than the fruit in town!

Rashi explains that the Gemara understood from our Mishnah that there is *another* reason to require that one observe the stringencies of the place in which he is found besides inciting Machlokes: wherever a person is to be found the Minhagim of that place become binding on him simply by virtue of his being there. Rashi proves this from the fact that one must observe the stringent practices of the place from which he came. Certainly one cannot incite Machlokes if he disregards the stringent practices of his place of origin when he is no longer there! It must be that he observes those practices simply because they are considered to be his own Minhagim. Similarly, then, one must keep the Chumros of the place in which one currently resides because a person takes on the Minhagim of the place that he is in.

How can Rashi make such an assertion? The Mishnah states explicitly that it is to avoid inciting Machlokes that one keeps the Minhagim of the place he is in, as the Gemara (Abaye on 51b) explained earlier! What does Rashi mean?

ANSWERS:

(a) The SEFAS EMES says that when it says "Mipnei ha'Machlokes," that refers to performing Melachah in public when a person intends to return to his original place ("Da'ato Lachzor"). Rashi is talking about one who has no intention to return ("Ein Da'ato Lachzor").

(b) Perhaps Rashi understood that when the Mishnah says "Mipnei ha'Machlokes," it is giving an *additional* reason why one must conduct himself according to the Minhag of the place. The Mishnah is saying that one must observe the Minhag of the place at which he arrives because (1) that places becomes his place of residence and thus he becomes bound by all of its Minhagim, and (2) he must conduct himself in a way which will avoid causing Machlokes. The Mishnah is not saying that "Mipnei ha'Machlokes" is the only reason.

52b