Mishnayos Yadayim Perek 4

Color Code: Case: Black; Ruling: Green or Red; Name of Tanna: Gold; Reason: Blue; Condition: Purple; Proof: Grey ; Rule: Fuscia

Chapter 4

The last Mishna of Chapter Three resolved a dispute whether Koheles and Shir HaShirim are M'Tamei Yadayim by introducing testimony that the issue was affirmatively resolved by majority vote among those present in the Yeshiva on the day Rabi Elazar ben Azariah was appointed Head of the Academy ("בו ביום"). The Gemara in Berochos 28a tells us, that following a dispute between Raban Gamliel and Rabi Yehoshua, Raban Gamliel is removed as Rosh Yeshiva and Rabi Elazar ben Azariah is installed as the new Rosh Yeshiva (https://www.bimbam.com/scholars/). Raban Gamliel was very selective of whom he allowed to enter into the Beis Midrash--limiting the amount of students. Whereas, Rabi Elazar on the day he was installed as Rosh Yeshiva, dismissed the guard to the Beis Midrash; welcoming all students to attend. It was, therefore, on this day that two things happened. First, each Student recited the traditions he received from his Rebbeim providing a definitive account of the Mesorah--many of these were transcribed in Mesechtas Ediyot. Second, with so many Chachomim present, they were able to resolve many long-disputed matters via majority vote. Many of these resolutions are collected in Mishnayos containing the term בו ביום (notably, the terminology used in the prior Mishna and in Mishna 2 below, is different).

The first four Mishnayos of our Perek detail disputes resolved on בו ביום. Mishna 5 returns to discussing some technical rules relating to Tumas Seforim. Having completed the laws of Tumas Seforim, Mishna 6 transcribes a dispute between the Chachomim and the Tziddukim regarding the entire notion of Tumas Seforim. Mishnayos 7 and 8 conclude our Mesechta by describing other disputes between the Chachomim and Tzidukkim.

Mishnah 4:1

Typically, Tumah is transmitted via touch and each progression reduces the level of Tumah (e.g., something touches an Av HaTumah it will become a Rishon; a Rishon will make a Sheini). However, in certain circumstances, a person who is an Av HaTumah will convey Tumah to an object by merely resting his weight on the object (i.e., the object is supporting his weight), even if he does not directly touch the object itself (i.e., he sits on 5 pillows--even the bottom pillow will be Tamei). This is called Tumas Midras. Further, the rule is that the object becomes Tamei at the same level as the person himself. So, for instance, if a person is a Zav, a serious form of Av Hatumah, and sits on 5 pillows, each of those pillows will be an Av HaTumah.

There is a caveat to this rule that the supporting object must be of the type of object that is normally used to support a person's weight AND that when doing so, the primary purpose of the object is not being usurped. Therefore, a chest that opens on top will not be susceptible to Tumas Midras if a Zav sits on it since at the moment he sits on it it loses its ability to perform its main purpose.

Our Mishna discusses the situation of a medium sized bowl/trough used to wash a person's feet. The bowl is just the right size to wash feet in and, when not being used to wash feet, it can be turned over and used to sit on. A smaller bowl would be too small to wash feet or to sit on. A larger bowl would be too big to sit on and therefore not susceptible to Tumas Midras. In our case, the bowl springs a leak and is no longer suitable to wash feet. All that's left is the possibility to use it as a stool. The question facing our Mishna is whether a person must specifically designate it as a stool in order to be susceptible to Tumas Midras. Or does the secondary purpose become the primary purpose automatically.

Notably, Rabi Akiva finds himself on the wrong side of the vote. It seems many of his traditions were challenged this day. See the 5th chapter of Mesechtas Sotah.

Mishnah 4:2

There are four essential processes when bringing a Korban.

1. שחיטה (slaughtering the animal),
2. קבלה (collecting the blood in a sanctified vessel),
3. הליכה (bringing the blood close to the Alter) and
4. זריקה (sprinkling the blood on the Mizbeach.

At all times during these processes the person performing them must have the right intent. This means, he must intend to be doing all these things for the right (i) type of Korban (i.e., an Olah for an Olah) and (ii) the right person.

The general rule is that when he has the wrong intent the Korban in question can be completed and burned on the Mizbeach and even eaten when appropriate. The person, however, will be required to bring another Korban to make up for it; this time having the right intentions. Our Mishna discusses certain exceptions to this rule. And for them there is no cure and the wrongfully intended Korban is pasul and must be burned.

Mishnah 4:3

The seven-year Jewish agricultural cycle consists of six "normal" years during which working the fields is permitted and a seventh year when the land must remain fallow, called Shmittah. During the six "normal" years the farmer would separate from his crops a certain amount as "gifts" for the Kohanim and Leviim. In addition to the regular Terumos and Maasros, there was an additional Ma'aser separated--either Ma'aser Ani (an additional tenth given to the poor) or Ma'aser Sheni, the second tithe. This second tithe is kept by the farmer but is considered Kodesh and must be brought to and consumed within Yerushlayim. During Shmittah, because the fields are considered Hefker the farmer does not need to give any Terumos or Ma'asros at all.

Ma'aser Ani and Sheini were not given each year of the cycle, rather you would alternate, giving two years of Ma'aser Sheini followed by one year of Ma'aser Ani. The schedule of Terumos and Ma'asros is as follows:

These rules apply in Eretz Yisroel proper. However, the Chachomim applied some of these rules to neighboring lands, including Egypt, Bavel and Transjordan. In each of these lands, the Chachomim instituted Terumos and Ma'asros on a Rabbinic level, requiring the farmers to set aside these gifts and portions from their fields. Importantly, however, Shmittah did not apply in these lands--therefore even during a Shmittah year they would need to separate Terumos and Ma'asros.

The question posed in our Mishna is which secondary Ma'aser is set aside during the Shmittah year in these lands? Ma'aser Ani or Ma'aser Sheini. The Chachomim had long standing traditions regarding both Egypt (Ma'aser Ani) and Bavel (Ma'aser Sheini). The dispute in our Mishna is over Transjordan--at least those areas not initially occupied by the two-and-a-half Tribes of Reuven, Gad and half of Menashe.

The Mishna first describes the back-and-forth conversation among the Ta'anaim in Yavneh. In support of their views they provide differing rationales why Transjordan should be more similar to Egypt or Bavel. These include, proximity to Israel, timing of initial decree and who enacted the decree. Eventually, on "Bo Bayom" this question is resolved in favor of Ma'aser Ani. The Mishna concludes with a story about Rabi Yosi visiting Rabi Eliezer ben Hyrcanus, who had been excommunicated and was no longer attending the Beis Midrash, and reporting in his name an ancient tradition in line with the Mishna's conclusion

Mishnah 4:4

The Torah forbids an Amonnite and Moavite, even after they convert, from marrying a Jew.* As it says in Devarim (23:4):

לֹֽא־יָבֹ֧א עַמּוֹנִ֛י וּמוֹאָבִ֖י בִּקְהַ֣ל יְיְ גַּ֚ם דּ֣וֹר עֲשִׂירִ֔י לֹא־יָבֹ֥א לָהֶ֛ם בִּקְהַ֥ל יְיְ עַד־עוֹלָֽם׃

עַל־דְּבַ֞ר אֲשֶׁ֨ר לֹא־קִדְּמ֤וּ אֶתְכֶם֙ בַּלֶּ֣חֶם וּבַמַּ֔יִם בַּדֶּ֖רֶךְ בְּצֵאתְכֶ֣ם מִמִּצְרָ֑יִם וַאֲשֶׁר֩ שָׂכַ֨ר עָלֶ֜יךָ אֶת־בִּלְעָ֣ם בֶּן־בְּע֗וֹר מִפְּת֛וֹר אֲרַ֥ם נַהֲרַ֖יִם לְקַֽלְלֶֽךָּ׃

Famously, this applies only to men, Moavite women may indeed marry a Jewish man.

Our Mishna relates how on Bo Bayom, an Ammonite man presented himself in the Beis Midrash and inquired about his status and whether the biblical injunction against marrying into the community still prevails. The Mishna record a dispute between Rabban Gamliel and Rabi Yehoshua.

Notably, Rabban Gamliel remained present and active in the Yeshiva even after he was deposed from his leadership position.

Mishnah 4:5

During significant portions of Jewish history, starting with the Babylonian exile, the main spoken language of the Jews was Aramaic. Thus, we find that portions of the Nevi’im Acharonim, like Ezra and Daniel, whose words were directed to those Jews living in Chutz L’aretz, were written in Aramaic. Further, during the time of the Second Beis HaMikdash a number of “translations” of the Torah were written—one of the most famous ones being Targum Onkelos. It became common to read these Targumim as part of the Kriyas haTorah so that the general population would understand what they were hearing.

Separately, one of the many decrees instituted by Ezra was to adopt a new font [or revitalize an older font] for the Hebrew Alphabet. While the letters and sounds remained the same, their depiction was changed to our familiar form—this is called Ksav Ashuris. The more ancient form is called Paleo-Hebrew or Ksav Ivris and is still used today by the Samaritans.

Our Mishna discusses whether the Aramaic portions of the Nevi’im, the Targumim and scrolls written in Ksav Ivris are considered Seforim for purposes of the decree of Tumas Seforim.

General Introduction to Mishnayos 6-8

The final three Mishnayos of our Mesechta form a distinct group of Mishnayos detailing four disputes between the Pharisees and the Sadducees. Each Mishna follows a similar pattern. First, the Sadducees ask a question on the presumptive Pharisaic practice by questioning the underlying logic of the practice. The Pharisees respond, in turn, by showing that the Sadducees have either a similar practice (undercutting their question) or misunderstood the underlying rationale or logic of the Pharisees' practice.

Traditional sources relate that the Sadducian sect was started by a wayward student of Antigonus Ish Socho named Tzadok. He misinterpreted one of his Rebbe's teachings and could not reconcile it with his faith. It is commonly misunderstood that that the Sadducees only believed in or followed exclusively the Torah Sh'beksav, the Written Torah (like the Karaites of the Middle Ages). However, as it appears in these Mishnayos and others, while they had their own distinctive way of explicating the Torah and its laws--often adhering to a more Peshat level understanding of the text--they did have an interpretive tradition. Many of their leaders were active in the Beis HaMikdash and the Beis Midrash and, more importantly, there likely was not a singular set of Halochos they all followed. In addition, while not identical, the Qumran sect espoused similar Halachik positions. See generally, Eyal Regev, הצדוקים והלכתם: על דת וחברה בימי בית שני, יד יצחק בן צבי, ירושלים תשס"ה and Yair Furstenberg, "קובלין אנו עליכם פרושים: לעיצובה של תמונת העולם הפרושית במשנה", א' רוזנק וד' שרייבר (עורכים), ההלכה: הקשרים רעיוניים ואידיאולוגיים גלויים וסמויים, מגנס וואן ליר, ירושלים תשע"ב, עמ' 283-211

Notably, we do not find specific cases of the Pharisees directly challenging the logic of the Sadducian Halacha, rather, you find numerous instances of the Pharisees (and the later Chachomim) taking actions to indoctrinate their own views and solidify its practice. For example, we find the Chachomim admonishing the Kohein Godol prior to Yom Kippur to properly observe the Incense Service. For the cutting of the Omer, the procession and the triple repeat of the instructions ensured that no one forgot the law. Finally, when it came to the Parah Adumah, the Chachomim would specifically make the Kohein designated to burn the Heifer a "T'vul Yom" so as to clearly indicate that the Halacha was not like the Sadducees.

The first two disputes are about purity rules: Tumas Seforim and the concept of "Nitzuk" (when pouring liquid from a pure vessel into an impure vessel the stream of water and the water remaining in the pure vessel remain pure). The third case is whether a master is held liable for the damages caused by his servant and maidservant. The final case is whether to include the words "כדת משה וישראל" in a divorce contract.

Mishna 4:6

Our Mishna, the first of the group, is directly related to our Mesechta. The Saducees challenge the notion that Seforim can be M'tamei Yadayim.* As commonly understood and as related in the Gemara in Mesechtas Shabbos, Seforim were deemed Tamei either to prevent a person from storing them with his Terumah or to prevent one from touching them with his naked hands.

It seems, that either Sadducees didn't know or misunderstood the basis for the decree or were trying to undermine Pharasaic authority and, therefore, were incredulous that something as holy as a Sefer Torah could be a source of Tumah--no different than a Korban that is Pigul or Nosar. The idea that Kedusha itself is the source of Tumah was illogical to them.**

To emphasize their objection they compare Seforim to unholy books, identified as either heretical books or the Homeric Epics, and question why those books do not generate Tumas Yadayim. The representative of the Pharisees is Rabi Yochanan ben Zakkai. According to most commentators, although knowing the real reason behind the decree, rather than disclose it, he plays into their thinking (i.e., devil's advocate) and tries to undercut their logic by utilizing a comparable case of the impurity of human bones vis-a-vis animal bones which even the Sadducees agree are pure. The Sadducees respond that the reason for this is that the more beloved an item is the greater the concern that we may act and use the object inappropriately in a misplaced desire to remain close to it (i.e., make a spoon from the bones of our parents). In response, Rabi Yochanan ben Zakkai says similarly, Seforim are very dear to us and we must make sure not to use them inappropriately (e.g., as an added layer under the saddle--see Tosefta), whereas these secular books are of no special value and therefore need no similar protection.***

* Some commentators understand the Sadducees' position as opposing the notion of Tumas Yadayim in its entirety. In other words, they did not accept the Chachomim's rule that hands alone, without the rest of the body, can become Tamei on a stand alone basis. See Regev p. 190-191 quoting Louis Finklestein The Pharisees: The Sociological Background of their Faith. Philadelphia: Jewish Publication Society of America, Third Edition, 1962.

** See Saul Lieberman, Tosefes Rishonim, Seder Taharos, Chelek R'vii, Yadayim, p. 156 accepting the Gemara's explanation of the decree's source but also noting that it is the Kedusha that gives rise to the Tumah for if the Sefer Torah was already Tamei, it would not make Yadayim Tamei. See also, The Paradox of the Red Heifer, Albert I. Baumgarten, Vetus Testamentum, Vol 43, Fasc. 4 (Oct., 1993) pp 449, where Baumgarten suggests a similar approach to our Mishnah as part of his larger thesis regarding the Red Heifer's supposed paradox, that contact with the sacred disturbs the natural equilibrium, hence causing defilement.

***See Regev, p. 191 in which he discusses an alternative reading of our Mishna in which the Tziddukim actually rule that the bones of animals are Tamei and that Rabi Yochanan ben Zakkai's conversation is rhetorical with his fellow Pharisees. We know from the MMT that the Qumran sect ruled the bones impure so it is certainly possible that the Sadducees held likewise. We translate our Mishna in accordance with the traditional commentators. But see the Chazon Nachum who intuits that perhaps Rabban Yochanan rhetorically to himself since it was uncommon for the Sadducees to try and respond to the Pharisees.

We find Rabi Yochanan ben Zakkai engaged in a similar conversation, undercutting his interlocutor's question, by referencing a situation similar to the case under scrutiny and showing how the outcome is natural in that case, yet, not revealing the real reason for the law. See Bamidbar Rabbah 19:8 where RYBZ is asked to defend the Parah Adumah ceremony from gentile ridicule.

Mishna 4:7

Our Mishna describes two cases of the Sadducees complaining to the Pharisees.

The Mishna in Machshirin (5:9) rules that כל הנצוק טהור. This means that when pouring a liquid from a pure vessel into an impure vessel, both the stream of liquid and the pure vessel will remain pure.* The Sadducees take exception since the waters are connected they should, in fact, become impure. In response, the Pharisees present another example of this phenomenon, a stream flowing through a cemetery, the portion outside where it pools into a Mikveh remains pure--a rule to which even the Sadducees would concede.

The Second case concerns a master's responsibility for the damage caused by his servants and maidservants. Under Torah law, a master is not responsible for their damages but is responsible if his animals cause damage (See Bava Kama 8:4). Once again the Sadducees take exception to this rule asking how can it be that while the master is obligated to manage the religious life of his servants he is not responsible for their monetary obligations? The Pharisees respond that the master cannot be held responsible, otherwise, because the servant has a mind of its own and can intentionally cause damage, anytime he got upset at his master he would go out and cause damage.**

* See Albeck, P. 609 who suggests an alternative source, Taharos 8:9, and suggests that the water is flowing from the impure to the pure vessel--similar to the example in our Mishna where the water flows from the cemetery (source of Tumah) to outside the cemetery.

**See Albeck, P. 609 who notes that in surrounding cultures the general rule was that masters are responsible for their servant's damages. But see Regev, P 109, who cautions not to jump to conclusions as to the role these laws may have influenced Sadducian legal thinking.

Mishna 4:8

Our Mishna, the final Mishna of the Mesechta, describes one last case of a Galilean "Min"* complaining to the Pharisees.

There is a convention with every legal document that it include the date it was entered into. This allows people to know when the transaction took place. Wrongly dating a contract could potentially invalidate them. The Mishna in Gitin 8:5 suggests that it was customary to date Jewish divorce contracts (Get) using the year of the then reigning non-Jewish sovereign (i.e., in the third year of the reign of King "so and so"). This was done to keep good relations with the government in power.

Separately, as part of the text, the Chachomim included the following words at the end of the Get: "כדת משה וישראל" (i.e., that the text is in accordance with Jewish religious law and custom). The Galilean took exception to the fact that both the secular ruler and the name of Moshe Rabbeinu are included in the same contract.**

The Chachomim respond that we find a similar situation in the Torah itself where we have the name of both the secular king (Pharaoh) and Hashem near each other. Moreover, Pharaoh's name is listed before Hashem's name.*** If it is not disrespectful for Hashem's name to be written as such, certainly we can do so for Moshe's name.

Finally, because the pasuk quoted is referencing Pharaoh's irreverence for Hashem "i.e., who is this Hashem?!?", to end on a positive note the Mishna ends with a quote showing that, in the end, even Pharaoh acknowledged Hashem's righteousness.

* While our Mishna uses the term Sadducee, most, if not all, extant manuscripts use the term Min instead of Sadducee. Historically, this term was used to denote an early Christian. Even if this time it was not so referencing, Medieval censors likely changed the word from Min to Tziduki. See Ma"Harsha on this Mishna who suggests that the whole notion of including the words כדת משה וישראל in the Get was to show that everlasting nature of our Tradition and the Torah.

**It is unclear whether he was suggesting that the king's name should be stricken or whether to exclude the concluding words from the Get. Because most contracts included this form of sovereign dating (see Mishna Rosh HaShana 1:1 and , generally, Rambam, Tosfos Yom Tov and Rash"ash), it would appear that it was the inclusion of כדת משה וישראל that upset him. But it does not seem like he was necessarily looking to undermine the authority of the Chachomim and the concept of Gittin.

***Albeck, p. 609-10 notes that some sects would actually split this pasuk in half, with Hashem's name starting on a new line. Making the reference in the Mishna to higher and lower (rather than prior or later) literal. He also notes that there is a different version of our Mishna that reads " את המושל עם השם " so that the question is how can it be that both Hashem's name and the secular king's name are mentioned in a Get. See Tosfos s.v. לפי שאין למדין Bava Basra 162a who rejects this reading and Aishel Avraham on Megillat Taanis (3rd day of Tishrei).

Nonetheless, the alternative reading has a certain inherent logic. By switching Hashem for Moshe, it better parallels the pasuk with Pharaoh. Further, it helps explain the Mishna's secondary question namely that in the Torah Pharaoh's name is written above Hashem's (unlike the Get where Hashem's name would come first). However, it also presupposes that Hashem's name is written in a Get, something our Gittin do not include (but, perhaps, ancient ones may have included). See Rabinowitz, J.J., "The legal papyrus from 'Auja el-Hafir," Yedi ‘ot ha-Hevrah la-hakirat Erets-Yisra'el ye-‘ atikoteha Volume 17, online in Digital Library for International Research Archive, Item #2143, http://www.dlir.org/archive/items/show/2143 (accessed February 26, 2017).

If the "Hashem" version is the correct version of our Mishna, it could mean our Mishna preserves an ancient text (i.e., Mishna Rishona) since such a practice of including Hashem's name in a contract would have been abolished as noted in Megillat Taanis. See Zeitlin, Solomon. “Megillat Taanit as a Source for Jewish Chronology and History in the Hellenistic and Roman Periods.” The Jewish Quarterly Review, vol. 10, no. 2/3, 1919, pp. 237–290. New Series, www.jstor.org/stable/1451411, especially footnote 269 and his hypothesis as to the cause of the mistaken version.