Daf 38b

  • Rav Michael Siev


Introduction to the Study of Talmud
by Rav Michael Siev

Kiddushin 28

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At the end of last week's shiur, we learned the mishna in Orla (3:9), quoted in our gemara, which says that orla, the fruit of a tree's first three years, is forbidden even outside of Israel, due to a halakha. The amora'im debated the meaning of the term halakha in this context: Rav Yehuda in the name of Shemu'el claimed that the law is something that the Diaspora communities took upon themselves, while Ula argued in the name of Rabbi Yochanan that it is a halakha le-Moshe mi-Sinai, part of the Oral Tradition that Moshe received from God at Sinai. The gemara we will study today resumes this discussion. Ula challenges Rav Yehuda's view regarding orla in chutz la-aretz (land outside of Israel), based on the first part of the same mishna in Orla that we quoted last week. The mishna examines cases of questionable orla and kilyaim; let us explain each case by itself and then Ula's question, which is based upon the interplay between the two.

We are nine lines from the end of 38b.

Ula said to Rav Yehuda: "It is good for me,

that I say [orla is forbidden outside of Israel through] a law to Moshe at Sinai;

that is why we differentiate between a doubt regarding orla and a doubt regarding kilayim.

For we learned in a mishna: 'A doubt regarding orla in the Land is forbidden,

in Syria it is permitted,

outside the Land - one may go down and buy, as long as he doesn't see him [the seller] pick [the fruits from trees of orla].'

א"ל (אמל ליה) עולא לרב יהודה: בשלמא לדידי

דאמינא הלכה למשה מסיני,

היינו דשני לן בין ספק ערלה לספק כלאים;

דתנן: ספק ערלה בארץ - אסור,

בסוריא - מותר,

בחוצה לארץ - יורד ולוקח ובלבד שלא יראנו לוקט.

In order to understand this ruling, we must appreciate why Syria is mentioned apart from other areas of chutz la-aretz. Rashi (s.v. Be-Surya) explains that King David conquered Syria and annexed it to Israel; nevertheless, this conquest was considered a kibbush yachid, a personal conquest [for an explanation of why this is, see Rashi to Gittin 8b, s.v. Kibbush yachid; Tosafot ibid. 8a, s.v. Kibbush yachid], and the author of this mishna holds that an annexation carried out under such circumstances is considered incomplete. Nevertheless, because of the close proximity of Syria to Israel and the possibility of confusing the two, we are not as lenient in Syria as we are in other parts of chutz la-aretz.

With this introduction, we can understand the mishna's ruling with regard to questionable orla. In Israel, such fruit is prohibited. In Syria, which is essentially considered chutz la-aretz, the fruit is permitted. However, this applies only when one purchases the fruit outside of the orchard which has orla trees in it. In such cases, it is possible that the fruit came from another orchard, and even if it came from the orchard with orla trees in it, it is possible that this fruit was from one of the older trees. In other parts of chutz la-aretz, we are even more lenient and permit one to purchase the questionable fruit even in the orchard itself, which makes it very unlikely that the fruit has come from a different orchard. This is true as long as one does not see the owner actually pick the fruits from the orla trees; since there is still some doubt as to the source of these fruits, one may eat them.

We continue with the mishna's ruling regarding questionable kilayim (forbidden mixtures):

And with regard to kilayim we learned in a mishna:

'A vineyard which is planted with vegetables, and vegetables are sold outside of it,

in the Land it is forbidden [to consume those vegetables], in Syria it is permitted,

and outside the Land - one may go down and pick as long as one does not pick by hand.'

But according to you,

it should state either that in this (the case of orla) and this (the case of kilayim) one may go down and buy,

or in this and this one may go down and pick!"


Shemu'el indeed said to Rav Anan, "Either teach: 'this and this he may go down and buy,'

or 'this and this he may go down and pick.'"

Mar son of Ravina taught it leniently: "This and this he may go down and pick, as long as he does not pick by hand."

ואילו גבי כלאים תנן:

כרם הנטוע ירק וירק נמכר חוצה לו,

בארץ - אסור, בסוריא - מותר,

בחוצה לארץ - יורד ולוקט ובלבד שלא ילקוט ביד.

אלא לדידך,

ניתני: או זה וזה יורד ולוקח,

או זה וזה יורד ולוקט!

האמר ליה שמואל לרב ענן, תני: או זה וזה יורד ולוקח,

או זה וזה יורד ולוקט.

מר בריה דרבנא מתני ליה לקולא: זה וזה יורד ולוקט, ובלבד שלא ילקוט ביד.

The mishna continues with its ruling regarding kilayim: once again, produce that is possibly kilayim may not be consumed in Israel, but may be consumed in Syria; as the mishna indicates, this leniency applies if the vegetables are being sold outside the vineyard which has vegetables growing in it (i.e., the place where there is kilayim growing). In the rest of chutz la-aretz, we are even more lenient, and allow one to order the (non-Jewish) owner to pick the vegetables from that vineyard, as long as the the (Jewish) customer does not do the picking himself. Even though the owner may pick from the plants that have the status of kilayim, it is permitted to eat the vegetables. [This is based on the explanation of the Ran, 15b in dapei ha-Rif. For an alternate explanation, see Rashi, top of 39a, s.v. Nitni.]

Based on the mishna's rulings regarding questionable cases of orla and kilayim, Ula argues that Rabbi Yochanan's opinion seems to be correct. According to Shemu'el, both orla and kilayim are prohibited in chutz la-aretz due to Rabbinic legislation; if so, the two laws should be of equal strength. However, the mishna indicates that when it comes to questionable kilayim one may order the owner to pick vegetables that may have the status of kilayim, whereas when it comes to orla one may consume the fruit of questionable status only when they have already be picked! If the laws have the same status, why are we more lenient with kilayim than with orla?

The gemara answers that Shemu'el in fact instructed Rav Anan to emend the mishna such that the laws of questionable orla and questionable kilayim are consistent. The gemara informs us that Mar, son of Ravina, would in fact teach the mishna in such a manner, such that even in cases of questionable orla one may instruct the owner to pick the fruit, as long as one does not see that he picks from orla trees.

The gemara questions Rabbi Yochanan's opinion, based on this same mishna. We are skipping a few lines, and resuming a bit more than a third of the way down the page on 39a.

Rabbi Assi said in the name of Rabbi Yochanan: "Orla outside the Land

is [prohibited by a] law to Moshe at Sinai."

Rabbi Zeira said to Rabbi Assi,

"But it is taught in a mishna: 'A doubt regarding orla in the Land is forbidden,

in Syria is permitted, (outside the Land he may go down and pick)!

He was bewildered for a time.

He said to him, "I will say, this is how [the law to Moshe] was stated: 'Its doubt is permitted, its certainty is forbidden.'"

אמר רבי אסי אמר ר' יוחנן: ערלה בח"ל (בחוץ לארץ) -

הלכה למשה מסיני.

א"ל ר' זירא לרבי אסי,

והתניא: ספק ערלה בארץ - אסור,

בסוריא - מותר, (בחוצה לארץ - יורד ולוקט)!

אישתומם כשעה חדא,

א"ל, אימא כך נאמר: ספיקא מותר, ודאה אסור.

The gemara begins with a quote from Rabbi Assi, who confirms what our gemara has already quoted Ula as teaching in the name of Rabbi Yochanan; that orla is prohibited outside of Israel based on a halakha le-Moshe mi-Sinai. Rabbi Zeira questions this based on the mishna in Orla that we saw above. It should be noted that the standard text of the gemara has the word והתניא, "but is is taught in a beraita" (תניא always implies a beraita). However, since this quote is from a mishna, the word תניא is not fully accurate; indeed, the Mesorat Ha-Shas quotes a variant text which states והתנן (the word תנן always denotes a mishna).

Interestingly, we have already seen how Ula attempted to prove Rabbi Yochanan correct on the basis of this mishna, which seemingly differentiates between orla and kilayim. Rabbi Zeira, on the other hand, sees the mishna as posing a difficulty for Rabbi Yochanan, based on the fact that the mishna teaches that if there is doubt about whether or not fruit is orla, one may be lenient. The background for this question is the policy that safek de-rabbanan le-kulla and safek de-oraita le-chumra. This means that in cases of doubt, we are lenient with regard to laws that are of rabbinic origin (safek de-rabbanan le-kulla) and stringent regarding laws that are of biblical origin (safek de-oraita le-chumra). A halakha le-Moshe mi-Sinai has the status of biblical law. Thus, the normal procedure would require one to be stringent in any case of doubt; how, then, can it be that the mishna permits one to be lenient outside of Israel? The mishna seems to prove Shemu'el's thesis that the prohibition of orla outside of Israel is a rabbinic law!

Rabbi Assi was stumped and could not answer for some time (as indicated by the citation of a phrase from Daniyyel 4:16, in which the hero struggles to interpret a perplexing dream). After further thought, though, he did suggest an answer: the halakha le-Moshe mi-Sinai itself stipulates that orla is forbidden outside of Israel only when the fruit is definitely orla; any case of doubt is excluded from the prohibition. Since the statement of prohibition includes this allowance, it is an exception to the general principle that safek de-oraita le-chumra

This gemara is of significance in a nuanced debate among the Rishonim regarding the rule of safek de-oraita le-chumra; understanding its place in that debate will help us gain perspective on the full import and meaning of our gemara. Rambam (Hilkhot Kilayim 10:27) maintains that the policy of being stringent in a case of doubt with regard to biblical laws is itself a rabbinic injunction; from a biblical perspective, one would not have to be strict. Rashba (Kiddushin 73a), on the other hand, argues that the policy of safek de-oraita le-chumra is of biblical origin.

Which opinion seems to make the most sense based on our gemara?

One of the Rashba's challenges to the Rambam is based on our gemara. Remember, the gemara stated that we would have had to be strict regarding cases of questionable orla if not for the fact that the halakha le-Moshe mi-Sinai itself made allowance in a case of doubt. If, however, the policy of safek de-oraita le-chumra is itself only a rabbinic ordinance, then on the level of the halakha le-Moshe mi-Sinai one could have been lenient even if such an allowance was not inserted into the original prohibition! The fact that the halakha le-Moshe mi-Sinai had to be limited indicates that without such a limitation we would have had to be strict, even without any special rabbinic decrees forbidding cases of questionable prohibition! Thus, he concludes, safek de-oraita le-chumra is a procedure that itself is of biblical status.

The Ran on our gemara (15b in the pages of the Rif) answers this question. He explains that according to the Rambam, we would have had the right to be lenient even without a special, built-in allowance to that effect; however, the built-in allowance changes the extent to which such a leniency could apply. Because of the fact that the halakha le-Moshe mi-Sinai excludes cases of doubt, one may even purposely bring about a doubt in order to be lenient, and one may be lenient due to any doubt, even if it is quite likely that the fruit is orla.

Some of the later authorities (for example, Rav Elchanan Wasserman, Kovetz Shiurim Vol. 2, 45:14) explain how this might work: in standard cases of doubt with regard to a biblical command, Rambam holds that, on a bibilical level, one may be lenient; what this means is that one has the right to take one's chances. If it turns out to have been forbidden, however, the person will have lost his gamble, and would be held accountable for inadvertantly violating a Torah prohibition. When it comes to orla, the halakha le-Moshe mi-Sinai itself excludes cases of doubt; therefore, even if the fruit really is orla, the person is not held accountable for violating the prohibition. The prohibition itself does not apply at all in cases of doubt; thus, there is no gamble involved in being lenient. It is for this reason that one may even purposely bring about a safek, and that even a low level doubt is sufficient to allow us to adopt a lenient policy.