The Obligation to Observe Minhagim

     In dealing with the topic of minhag (customs), we must address several different issues:

 

     In general, we are familiar with several different types of minhag: those deeply rooted within the realm of halakha; those that involve simply a decision between two conflicting halakhic views; those that have no halakhic source whatsoever but "everybody" follows this practice; those that form part of the tradition of a specific family or community.  As we will see, even those in this final group have received considerable attention in halakhic literature.  In this shiur we will try to determine the basis of the obligation to follow the minhagim in each of these categories.

 

1.   In Masekhet Pesachim 66a we find a dispute among the Tanna'im regarding a certain issue relevant to Erev Pesach.  Since the halakha was forgotten, the Sages relied on common practice to resolve their uncertainty, as the Gemara comments, "Let Israel be - for if they are not prophets, they are at least the descendants of prophets."  Here, the minhag clearly originates in an ancient halakha that had been forgotten.  Herein lies as well the concept known in halakhic jargon as "pok chazi mai ama davar" - "go and see how everyone acts."  Meaning, the nation knows how to conduct themselves regarding halakhic matters.  In such a case, the custom carries no intrinsic weight, but simply informs us of what the halakha has established.

 

     An additional type of custom, as mentioned, is one that comes to decide upon one among several conflicting views among the poskim, or a minhag that runs in opposition to explicit sugyot in the Talmud and Rishonim.  The Gemara in Masekhet Rosh Hashanah (34a) writes that Rabbi Avahu had a question concerning what type of shofar sound we should blow.  Rav Hai Gaon, in one of his teshuvot, asks why Rabbi Avahu did not simply observe the common practice and resolve his query accordingly?  This question assumes that when we observe a custom practically applied, we can fulfill our requirement without doubt vis-à-vis the given mitzva through that practice.  And if we find something in the Gemara contradicting this practice, we must find some method of explaining the Gemara to accommodate this custom.  If this is impossible - we must still follow the common custom(!).

 

     This represents an extreme approach, and it stands to reason that Rav Hai Gaon speaks here of a practice adopted by the entire Jewish people and implemented consistently year after year.  We must ensure not to apply this theory to any custom we come across.  In any event, what emerges is a perspective that views a practically-applied minhag as more authoritative than a recorded one.  This attitude finds expression in the Gemara's statement, "Ma'aseh rav adif" - we accept a given ruling based on our knowledge that it was indeed followed in practice, and not merely on the fact that it has been recorded.

 

     In Masekhet Shabbat 48a, the Gemara mentions the prohibition against placing a pot on a fire and covering it on Shabbat.  Tosefot there note the common practice permitting doing so, contrary to the explicit ruling of the Gemara.  (Here we deal with a minhag that was not universally followed, so we cannot apply Rav Hai Gaon's principle.)  Several Rishonim try to deal with this problem.  Interestingly enough, the Ran, in his second approach, writes that indeed this is an incorrect practice that should be discontinued.

 

     We have thus seen two different approaches as to the issue of which takes precedence: a minhag that has been implemented in practice, or a sugya in a Gemara with its halakhic implications.

 

2.   A different area involves those minhagim which have no halakhic foundation or reason but for many generations people have taken on the practice anyway.  For example, there is a popular minhag to immerse in the mikve on Erev Yom Kippur.  The question, of course, arises as to the extent to which we bear an obligation to observe these customs, and what is the obligating force.

 

     The Gemara in Masekhet Rosh Hashanah (18b) discusses the four fasts days commemorating the various stages of the churban and the level of obligation entailed in their observance.  Rav Papa asserts that during periods of "shalom," these days become festive occasions; in times of religious oppression, they must be observed as fast days; when there is neither "shalom" nor oppression (which most authorities assume describes our situation nowadays), one has the option of whether or not to fast.  We find in the Rishonim two opposite attitudes towards this final halakha.  The Ramban writes that nowadays, the Jewish people have taken upon themselves the observance of these fast days, and thus no individual has the option of doing otherwise.  Thus, the very existence of the custom itself mandates its observance.  Ostensibly, should a generation arise that wishes to cancel this obligatory fast, they would not have the power to do so, due to Am Yisrael's initial acceptance of these fast days.  The Rashba, by contrast, presents a different view, that the general acceptance of these fasts do not render it binding, and nowadays we do not bear a strict obligation fast.

 

     This debate may stem from different possible ways of understanding the sugya.  Namely, did the Gemara mean that the fast depends on the will of every generation, or does it hinge solely on the decision of that first generation, whereas nowadays we have no choice whether or not to fast?  Alternatively, however, we may view this debate as a fundamental dispute dealing with the status of minhag, whether or not it remains binding for future generations.

 

     The Gemara in Pesachim 50b writes that the people of Baishan had the practice to refrain from traveling from Tyre to Sidon on Erev Shabbat.  Their children later came before Rabbi Yochanan and asked whether this practice binds them, as well.  He replied, "Your fathers already accepted it upon themselves, as it says, 'Listen, my son, to the reproach of your father, and do not abandon the teaching of your mother'."  The Yerushalmi (Pesachim 4:1) tells a similar story, that the people of Meisha took upon themselves the practice to refrain from sailing in the Mediterranean Sea (on Erev Shabbat).  The children came to Rebbe to ask whether or not they were bound by this stringency.  He answered, "Since your fathers observed this prohibition, you should not deviate from the practice of your fathers whose souls now rest."  The Yerushalmi then asks why the children could not seek an annulment of the custom, just as one can seek annulment for a vow he had taken and now regrets.  The Gemara responds that since the parents, not the children, had taken on the practice, the children do not have the right to attain annulment; this right is reserved to those who themselves took the vow or, in this case, took on the custom.  However, the Gemara continues, if this is so, then why does the custom affect the children altogether?  The Yerushalmi concludes that in truth, Rebbe ruled stringently in this case for a different reason entirely: because he himself personally held that one may not set sail in the Mediterranean.  His stringent ruling thus had nothing to do with the parents' minhag.

 

     It is not clear from the Yerushalmi whether or not the conclusion, that one may not embark on a journey in the Mediterranean on Erev Shabbat, discounts the possibility that minhagim have the status of a vow, and must consequently be observed.  The Gemara may have simply noted that indeed Rebbe followed his own personal view, while accepting the original assumption that minhagim are obligatory as a form of vow.  According to the second approach, the Yerushalmi would then argue with the Talmud Bavli regarding the basis for observing minhagim: The Bavli maintains that the fact that one's parents observed a minhag renders it obligatory upon the children, whereas the Yerushalmi sees this obligation as an extension of the laws of nedarim (vows).

 

     Rabbenu Chananel there in Pesachim explains the Bavli according to the Yerushalmi's approach, viewing the prohibition as an inherent prohibition against sailing in the Mediterranean on Erev Shabbat, and not as a result of a minhag.

 

     The Rosh there draws an interesting distinction between two types of customs.  A person who mistakenly adopts a given stringency under the notion that halakha forbids it may discontinue this practice even without the process of hatarat nedarim.  If, however, he knew from the outset that he takes upon himself an added stringency, he must adhere to his custom unless he undergoes the process of hatara.

 

     The Ra'avad draws a slightly different distinction between different forms of minhagim.  One category, he claims, consists of practices that do not relate at all to halakhic prohibitions or obligations.  The second type of minhag is a custom instituted solely as a "seyag," to help safeguard against violations.  The custom to refrain from journeying from Tyre to Sidon developed as a means to protect against possible Shabbat violations, and it thus becomes binding.  By contrast, a minhag that does not involve any kind of safeguard may be discontinued if the entire community so wishes.  (An individual, however, does not have the right to personally neglect a practice accepted by his community.)  The Ramban likewise maintains that certain minhagim are not subject to hatara, though he distinguishes between customs initially accepted under mistaken notions and those which one accepts with full awareness and correct knowledge.

 

     We find yet a different distinction in the comments of Tosefot, who draw the line between customs developed by the masses and those instituted by the rabbinic leadership of a given locale.  The Gemara states that one may not violate a given minhag in the presence of someone who observes it, in order that he does not himself come to mistakenly violate it.  Tosefot ask, is not one required to observe the minhagim of the local community?  Why, then, does the Gemara forbid violating a local custom only to avoid confusion?  Tosefot answer that foreigners must observe a local minhag only if it originated from the religious leadership; by contrast, a custom that developed among the masses does not bind those who come from other communities.

 

     Generally, the source for observing minhagim, according to the Rambam in Hilkhot Mamrim, is the verse of "lo tassur" - "Do not deviate from anything they tell you right or left" (Devarim 17:11).  The Rambam writes that this verse includes all "gezeirot, takanot u-minhagot" - decrees, legislation and customs.

 

3.   Now let us attempt to precisely define the term "minhag."  The Gemara in Masekhet Sukka (54a) discusses the practice of chibut arava (hitting the floor with the aravot on Hoshana Rabba) and claims that if we view this ritual as just a minhag (rather than a formal halakha), no berakha is recited before its performance.  Rashi explains that if chibut arava was not formally instituted as halakha, then we cannot declare in a berakha, "who… commanded us… ," since this practice does not fall under the aforementioned prohibition of "lo tassur."  From the comments of Tosefot there it appears that they disagree and claim that one can recite a berakha even over a practice whose neglect would not violate the prohibition of "lo tassur."  The Rambam's position in this regard seems difficult to understand.  He agrees with Rashi's view, that we cannot recite a berakha over minhagim, although, as mentioned, he includes minhagim under the prohibition of "lo tassur."  Apparently, the Rambam felt that although the Chakhamim had the authority to establish mandatory customs, which then become part of the Torah she-be'al peh (oral tradition), these customs are nevertheless not subject to berakhot.  Berakhot are not recited over minhagim, which do not stem from strictly binding legislation.  Thus, for example, the Chakhamim established the practice of chibut arava only on the level of minhag, not strict halakha, and thus it does not require the recitation of a berakha.  What would the Rambam say about a minhag that developed in a specific location, but not as a general institution?  Conceivably, such a custom would be mandatory as a form of neder (which could perhaps be subject to hatara).  On the other hand, however, a local practice may enjoy the status of a quasi local Bet Din, whose laws are binding on all local residents.  This situation would then resemble a minhag instituted by the national Bet Din, which becomes mandatory even though it does not necessarily relate to any specific area of Torah law.

 

     According to this approach in the Rambam, we can perhaps explain the aforementioned distinction suggested by the Ra'avad, between customs intended to help prevent Torah violations, and those with no connection to any mitzva or prohibition.  A minhag established as a safeguard becomes akin to Torah law and hence binding.  Other customs, however, have the status of nedarim, which are subject to hatara.

 

     This approach may also shed light on Tosefot's view, cited earlier.  A custom originating from the local rabbinate has a status of quasi Torah law, given its stature as the halakhic authority for that locale.  Their legislation thus binds visitors to that community.  Clearly, this would not apply to minhagim developed among the masses, that were not initiated by the rabbinic leadership.

 

4.   An additional question that arises from this discussion involves the halakhic significance of family practices.  In the Gemara in Pesachim we saw that the people of Baishan bore an obligation to follow the practice observed by their parents.  Accordingly, it would seem, any family minhag has intrinsic halakhic significance.  The Chavot Yair, however, understood that a family minhag has no inherent halakhic significance, but has meaning only insofar as it is deemed a local practice.  He would presumably explain that the custom adopted by the people of Baishan became quasi Torah law since it was instituted as a safeguard against the violation of Shabbat.

 

     In summary, we encountered several different types of minhagim and the Rishonim's attitude towards them.  We saw that some minhagim have a stronger basis than others and therefore do not lend themselves to any possibility of violation.  We discussed the criteria by which we classify the various types of customs according to the different views among the Rishonim and poskim.

 

[​A student's summary of a shiur delivered in the yeshiva on 7 Tevet 5762, this summary was not reviewed by Rav Gigi.]