Daf 36b

  • Rav Michael Siev


Introduction to the Study of Talmud
by Rav Michael Siev

Kiddushin 27

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We will be continuing our study of the first perek of Massekhet Kiddushin with the mishna on daf 36b, which begins a new discussion. The two previous mishnayot discussed which mitzvot are limited to men and which apply to women as well. Our mishna presents another distinction between categories of mitzvot and their applicability to different situations.

We are three lines from the end of 36b. I would like to encourage everyone once again to follow along in a standard Gemara; doing so will help the reader gain an important measure of comfort with the text and will thereby facilitate future independent learning.

Mishna Any mitzva that is dependent upon the Land

only applies in the Land [of Israel];


and [any mitzva] that is not dependent upon the Land

applies whether in the Land or outside the Land;


except for orla and kilayim;

Rabbi Eliezer says, "even the [prohibition of] the new grain."

מתני' כל מצוה שהיא תלויה בארץ

אינה נוהגת אלא בארץ;

ושאינה תלויה בארץ

נוהגת בין בארץ בין בחוצה לארץ,

חוץ מן הערלה וכלאים;

ר"א (רבי אליעזר) אומר: אף החדש.

The mishna introduces the distinction between two types of mitzvot: ha-teluyot ba-aretz, those that are dependent upon the land, and she-einan teluyot ba-aretz, those that are not dependent upon the land. Mitzvot that are teluyot ba-aretz apply only in the Land of Israel, while mitzvot that are not apply in Israel as well as in other locations. The gemara will shortly define what exactly "mitzvot ha-teluyot ba-aretz" means.

The mishna lists exceptions to this rule. According to the tanna kamma (first, anonymous tanna), the exceptions are orla and kilayim, which are mitzvot ha-teluyot ba-aretz, but nevertheless apply outside of the Land of Israel. The Torah (Vayikra 19:23-25) prohibits the consumption of orla, the fruit of the first three years of a tree's existence. In the fourth year, the fruits are considered sanctified and must be taken to Yerushalayim and eaten there; the fruit may be eaten freely, anywhere, from the fifth year on.The mitzva of kilayim forbids one from planting different types of plants in immediate proximity to each other (Vayikra 19:19, Devarim 22:9). [There are other types of forbidden mixtures as well which are included in the general category of kilayim, including cross-mating different species of animals and wearing garments that contain a mixture of wool and linen, known as sha'atnez; however, our sugya refers specifically to planting different species in close proximity to each other.]  

Rabbi Eliezer claims that there is a third exception as well: the mitzva of chadash, new grain. Grain from a new crop may not be eaten until the korban omer is offered in the beit ha-mikdash on the sixteenth day of Nisan; in times when there is no beit ha-mikdash, the grain may be consumed any time after that date. Once the sixteenth of Nisan passes, any grain that currently exists, including the grain that will be reaped from seeds that have been planted and have already taken root in the ground, attains the status of yashan, old grain, and may be eaten. Grain from a seed that had not yet taken root in the ground on the sixteenth of Nisan is considered chadash, and may not be consumed until the sixteenth of Nissan in the following year. Rabbi Eliezer argues that this restriction applies even to grain grown outside of the Land of Israel, while the tanna kamma asserts that it is limited to grain that is grown in the Land of Israel.

Let us continue with the gemara, on the second line of 37a.

Gemara What is "dependent" and what is "not dependent?"

If you say "dependent" [refers to mitzvot found in passages] in which entering [the Land of Israel] is written,

and "not dependent" [refers to mitzvot found in passages] in which entering is not written,

but [what about] tefillin and peter chamor, [found in passages] in which entering is written,

and they apply both in the Land and outside the Land!

Rav Yehuda said: "This is what it means to say:

Any mitzva which is an obligation of the person applies both in the Land and outside the Land;

[any mitzva that is] an obligation of the ground applies on in the Land [of Israel].

גמ' מאי תלויה, ומאי שאינה תלויה?

אילימא תלויה - דכתיב בה ביאה,

ושאינה תלויה - דלא כתיב בה ביאה;

והרי תפילין ופטר חמור דכתיב בהן ביאה,

ונוהגין בין בארץ בין בח"ל (בחוץ לארץ)!

אמר רב יהודה, ה"ק (הכי קאמר):

כל מצוה שהיא חובת הגוף - נוהגת בין בארץ בין בח"ל;

חובת קרקע - אינה נוהגת אלא בארץ.

The gemara begins by questioning the meaning of the term mitzvot ha-teluyot ba-aretz: what does it mean when the mishna refers to mitzvot that depend upon the land? At first the gemara suggests the possibility that this category refers to mitzvot which are contained in passages that discuss entering the Land of Israel; if these mitzvot become applicable only when the Jewish people leave the desert and enter the Land of Israel, perhaps that is an indication that these particular mitzvot do not apply at all outside of the Land of Israel.

The gemara rejects this suggestion due to the fact that there are two mitzvot, tefillin and peter chamor, which apply even outside of the Land of Israel despite the fact that the Torah, in introducing them, explicitly mentions our entering the Land of Israel. With regard to tefillin, phylacteries, the Torah (Shemot 13:9) commands us to wear tefillin in a context that explicitly refers to the time of our entering the Land of Israel (ibid., v. 5). The same applies to the mitzva of peter chamor (ibid., v. 13), which is introduced by a pasuk that states: "And it will be when God will bring you to the land of the Canaanites, etc." (ibid. v. 11). Thus, it is clear that the mention of the Jewish people entering the Land of Israel in a passage does not mean that its mitzvot applies only in the Land of Israel.

Let us take a moment to explain the mitzva of peter chamor, which is not widely known due to the fact that most of us to do not raise livestock nowadays. The mitzva of peter chamor is part of the laws of bekhor: a first-born male animal that is born to its Jewish-owned mother has the status of a bekhor. This means that it has a degree of sanctity and must be given to a kohen; he, in turn, must offer it as a sacrifice and partake of its meat, or, if the animal develops a physical blemish, the kohen may eat it. Non-kosher animals are generally not included in this law and have no special status; however, a first-born donkey (peter chamor) must be exchanged for a sheep, which, in turn, is given to a kohen, who may eat it even with no blemish. If the owner of the donkey does not exchange it for a sheep, he must kill the donkey by breaking its neck.

Having rejected its initial understanding of mitzvot ha-teluyot ba-aretz, the gemara quotes Rabbi Yehuda, who suggests that the definition relates to the locus of the demand that the mitzva makes upon the person. A mitzva that relates to man's use of land (karka) is considered a mitzva ha-teluya ba-aretz, while a mitzva that involves one's person is considered eina teluya ba-aretz. Thus, mitzvot such as tithing produce and shemitta apply only in Israel, while mitzvot such as Shabbat, holidays, tefillin and the like apply everywhere.  

It is important to note that the fact that mitzvot that relate to land apply only in the Land of Israel clearly demonstrates the unique spiritual status of the Land of Israel. Its significance when it comes to mitzvot is not limited to mitzvot ha-teluyot ba-aretz, however. The Midrash (Sifri, Devarim 43), famously quoted and explicated by Ramban in his commentary to the Torah (Vayikra 18:25), goes so far as to say that the Land of Israel is the place where all mitzvot find their full significance, and that even though we are obligated to keep mitzvot outside of the Land, that is essentially practice for when we will be able to fulfill the mitzvot when they are fully relevant, in the Land of Israel. The Netziv (Rav Naftali Tzvi Yehuda Berlin, 19th century scholar and rosh yeshiva of the famed Yeshiva of Volozhin), in his commentary to Torah (Ha'amek Davar, Shemot 12:20), claims that this principle applies even to the rational mitzvot that govern interpersonal relations; every mitzva achieves greater significance in the Land of Israel, where God's presence is more directly manifest.

Back to the Gemara

At this point, we will skip to the gemara's discussion on 38b, where the gemara discusses the exceptions to the general rule that mitzvot ha-teluyot ba-aretz apply only in the Land of Israel. We begin with the first word on the line, approximately two thirds of the way down the page.

It is stated in a mishna there: "Chadash is forbidden by the Torah is every place,

orla [is forbidden by a] halakha,

and kilayim [is forbidden] from the words of the scribes."


What is "halakha"?

Rav Yehuda said in the name of Shemu'el: "The law of the land."

Ula said in the name of Rabbi Yochanan: "A law to Moshe at Sinai."

תנן התם: החדש - אסור מן התורה בכל מקום,

ערלה - הלכה,

והכלאים - מדברי סופרים.

מאי הלכה?

אמר רב יהודה אמר שמואל: הלכתא מדינה.

עולא אמר רבי יוחנן: הלכה למשה מסיני.

The gemara begins by quoting a mishna (the word תנן always denotes a mishna) "there." In order to find the location of this quote, one who is using a standard page of Gemara may follow the asterisk to the inside margin of the page, where the Mesorat Ha-Shas references this quote as a mishna in Masekhet Orla (3:9). The mishna takes as a given that all three halakhot mentioned, chadash, orla and kilayim, apply even outside of the Land of Israel, in "every place;" this is in accordance with the opinion of Rabbi Eliezer in our mishna here in Kiddushin, and is at variance with the opinion of the tanna kamma of our mishna.

The mishna in Orla claims that chadash is forbidden everywhere on a biblical level, while orla is forbidden outside of Israel as a "halakha," and the prohibition of kilayim is a Rabbinical ordinance. Clearly, the term halakha in this contexts is ambiguous, and the gemara questions the nature of this halakha. Rav Yehuda in the name of Shemu'el explains that this refers to the "law of the land." Rashi (s.v. Hilkheta medina) explains that this means that the Jewish communities outside of Israel took it upon themselves to keep this halakha. Ula, quoting Rabbi Yochanan, presents a different explanation: halakha in this context means halakha le-Moshe mi-Sinai, a law that God gave to Moshe as part of the Oral Torah at Sinai. Laws that are halakha le-Moshe mi-Sinai essentially have the status of biblical laws, though they are not explicit in the Written Torah, and therefore are of lesser status than laws that are fully explained in the Written Torah.

Our sugya is an important source in the debate regarding the parameters of the prohibition of chadash, which is a debate that has considerable practical ramifications. We have seen there there is a dispute among the tanna'im about whether or not this prohibition applies outside of Israel. The Gemara (Menachot 68b) seems to assume that chadash is forbidden even outside of Israel, and debates whether or not this prohibition is of biblical of rabbinical status. There is one view among the early authorities (Sefer Ha-teruma) that argues that the prohibition is rabbinical and that it was applied only to the lands that are right next to Israel. However, most Rishonim rule that chadash applies to all places on a biblical level. A further consideration is whether the rule of chadash applies to grain that was grown by a non-Jew. Tosafot (36b-37a, end of s.v. Kol mitzva) rule that chadash does apply even in such circumstances. The Bach (acronym for Bayit Chadash, a commentary on the Tur written by Rav Yoel Sirkes, a 15th-16th century Ashkenazi authority) famously argues (YD 293), however, that grain of a non-Jew is exempt from the prohibition of chadash.

Practically, the Shulchan Arukh (OC 489:10, YD 293:2) rules that chadash applies even to grain of a non-Jew that was grown outside of Israel. Rema (YD, ibid.) agrees, but notes that if there exists substantial doubt as to whether grain is in fact chadash, there is room for leniency. For centuries, the general practice of Diaspora communities has been to be lenient, and that is the practice of most kashrut organizations today as well; nevertheless, many later authorities question this practice, and it has become more widespread in recent years to be stringent on this matter. [For more information on this topic, see Mishna Berura (OC, ibid.) and Arukh Ha-shulchan (YD ibid.).]