A Split Tiyomet

 

Rav Pappa asked: If the tiyomet (the central leaf of the lulav; Rashi: [it is called tiyomet] because [the halves] cleave together like twins [te'omim]) is split, what is the law? - Come and hear, for Rabbi Matun said in the name of Rabbi Yehoshua ben Levi: If the tiyomet is removed, [the lulav] is unfit. Is it not that the same law applies if it is split? - No, if it is removed, it is different, for something is missing. – There are those who say: Rabbi Matun said in the name of Rabbi Yehoshua ben Levi: If the tiyomet is split, it is as if the tiyomet were removed, and unfit. (Sukka 32a)

           

THE CASE UNDER DISCUSSION

 

            We must clarify the precise case under discussion, as well as the nature of the disqualification. Regarding the case, we find several opinions among the Rishonim. One of the most stringent views is cited by the Tosafot in Bava Kama 96a in the name of a Geonic responsum:

 

If the tiyomet is split, etc. Ri found in a responsum of the Geonim: The uppermost leaf at the top of the lulav, there being no leaf above it. It is like two leaves stuck together and is called tiyomet. This is also implied by the Halakhot Gedolot. According to them, we cannot find a fit lulav, for it is with great effort that one can find such a tiyomet, even one in five hundred. It may be suggested that even according to them it is only unfit if it is was like this from the outset, and then it split, thus changing from its natural state.

 

            See, however, the Ran on our passage (p. 15a in Alfasi), who brings two possibilities whether we are dealing with a majority of the leaf, or even a minority. Most of the Rishonim are not as stringent as this, and suggest other understandings. Rashi (on our passage) explains:

 

If the tiyomet is split – If the two middle and uppermost leaves where the spine [of the lulav] ends become split one from the other, and the spine is split until the leaves under them.

 

            See also the continuation of the Tosafot in Bava Kama:

 

And the Kuntrus (Rashi) explained: If the tiyomet is split – If the two middle and uppermost leaves where the spine [of the lulav] ends become split one from the other, and the spine is split until the leaves under them. His explanation implies that the spine became so split that the upper leaves appear to be split and separated one from the other.

And Ri said further that there are those who explain that all the leaves of the lulav are doubled, each one being two, and at the top of the lulav at the end of the spine there are two leaves, each being doubled, like the other leaves of the lulav, and these two leaves at the top of the spine are called tiyomet. And it is regarding them that the Gemara asks: If the tiyomet is split, what is the law – if they are split one from the other, that is, part of the spine. Most lulavs, however, are not like this, but nevertheless the Gemara asks what is the law in such a case.

 

            The Rif (on our passage, p. 15a) adopts an entirely different and exceedingly lenient approach:

 

Tiyomet refers to the back of the leaf which joins the two sides of the leaf, and turns them into one, for each one is doubled and joined in the back. If the leaves become separated from each other and each one stands apart doubled, and their tiyomet remains intact, it is fit. And if the tiyomet is split, it is as if the leaves became severed, and is unfit.

 

            The Rosh explains in sec. 6:

 

We are talking about a majority of the leaves… and where the majority of each leaf is split.

 

            As for the final Halakha, Rabbi Yosef Karo and the Rema disagree:

 

The natural state of the leaves of the lulav is as follows: When they grow, they grow in pairs, stuck together in the back. The back of [each set of two] is called the tiyomet. If the tiyomet is split (in a majority of the leaves) (Tur, Bet Yosef), [the lulav] is unfit… Rema: And some explain that if the middle and uppermost leaf on the spine is split to the spine, it is called a split tiyomet, and is unfit; and this is our custom (Terumat ha-Deshen, no. 94, 96). Lekhatchila, however, the best way to perform the mitzva is to take a lulav in which the tiyomet is not split at all, for there are some who are stringent even in the case where it is partly split. (Shulchan Arukh, OH, 645:3)

 

The Arukh ha-Shulchan comments on the words of the Rema:

 

I am astonished by this ruling, for according to the Rif, the Rambam, the Ra'avad, the Behag, and the Geonim, there is no disqualification whatsoever where there is a split in the single tiyomet, as by us. And so too according to Rashi in Sukka, there is no disqualification unless the spine is split. This is also true according to Rashi in Bava Kama. And even if the Terumat ha-Deshen understood from him that where it is split in its entirety it is unfit, is one understanding of Rashi stronger than his own explanation on the spot in Sukka, and against all these authorities. Moreover, it is so stated explicitly in the Yerushalmi. And even the Ran who brought such an explanation immediately rejected it, though he wrote that it is right to be stringent, see there. And the Rashba in Bava Kama brought from Tosafot that they explained like Rashi by us in Sukka. And the Rashba and the Ran and the Maggid Mishne themselves agree that the Halakha is in accordance with the Rif and the Rambam, that it refers to all the leaves; see there. Therefore, even if he found this in some explanation of Rashi, why should we disqualify? Surely in all matters of Torah law, we follow the majority, and here it is not even the view of single authority, for according to Rashi in Sukka it is fit. What did the Rema see to be stringent in the matter? This requires examination… Therefore, in my humble opinion, the Halakha is clear that certainly since it issued from the mouth of the Rema, one should not take a lulav if most of its tiyomet is split, when another one is available. But if no other lulav is available, e.g., in a village or the like, a blessing may be recited [over such a lulav], even on the first day without any concern or reservation, for this is the basic law. And especially in the case of our lulavs which come from Italy, most of which are split. But where it is less than half-way split, there is no concern whatsoever. (paragraphs 10-11)

 

THE NATURE OF THE DISQUALIFICATION

 

            Rashi on the Mishna at the beginning of the chapter explained that a lulav whose top is broken off or its leaves are severed is disqualified because of hadar, and there is room to say that the same applies to a split tiyomet.  This is also the implication of the Tosafot in Bava Kama, s.v. nitla. According to this, most Rishonim would disqualify a lulav with a split tiyomet all seven days of Sukkot, whereas the Ra'avad, who maintains that the disqualifications based on hadar apply only on the first day, a split tiyomet should also not disqualify the lulav during the rest of the festival.

 

            The posekim, however, propose a different understanding of the disqualification. When the Gemara thought to distinguish between a tiyomet that is removed and a tiyomet that is split, it explained that in the former case, something is missing. This suggests that we are talking here about the disqualification of chasser (missing). See Ran, who explained (in the context of the position of the Rif) the Gemara's conclusion, that if the tiyomet is split, it is as if the tiyomet were removed, and therefore unfit:

 

If the leaves are split in the place that they are joined, it is as if there were removed from each one that sliver that joins them, and it is regarded as missing something in every leaf. And in that case it is certainly unfit, for it is obvious that if something is missing in every leaf, it is disqualified.

 

            Regarding the disqualification of chasser, we saw in one of the earlier shiurim different understandings among the Rishonim. Some understand that it too is based on the law of hadar (Ran, p. 13b in Alfasi), but many explain that it is disqualified because it is not lekicha tam("an unblemished taking"). Nevertheless, many have ruled that chasser is fit the rest of the days of the festival. According to this, there is room to say that if the tiyomet is split, the lulav should be fit after the first day of Sukkot. Thus ruled the Magen Avraham, no. 6, in the name of Rabbenu Yerucham, and this is the ruling of the Mishna Berura, no. 17.

 

            In the next section, we shall suggest yet another way of understanding the disqualification.

 

Acquisition of stolen property through a change and the disqualification of a split tiyomet

 

            Our passage is found once again, almost word for word, in the Gemara in Bava Kama (96a-96b), though in a most surprising context:

 

Rava said: If one stole a lulav and converted it into leaves he would acquire title to them, as originally it was called lulav whereas now they are mere leaves. So also where out of the leaves he made a broom he would acquire title to it, as originally they were leaves whereas now they form a broom. But where out of the broom he made a rope he would not acquire title to it since if he were to undo it, it would again become a broom.

Rav Pappa asked: What is the law if the tiyomet becomes split? — Come and hear, for Rabbi Matun said in the name of Rabbi Yehoshua ben Levi: If the tiyomet is removed, [the lulav] is unfit. Is it not that the same law applies if it is split?  - No, if it is removed, it is different, for something is missing. – There are those who say: Rabbi Matun said in the name of Rabbi Yehoshua ben Levi: If the tiyomet is split, it is as if the tiyomet were removed, and unfit. Conclude from this.

 

            Rav Pappa's uncertainty regarding a split tiyomet, which in the Gemara in Sukka is brought as a question with respect to the suitability of the lulav for the mitzva, is brought here in the context of defining the phenomenon as a change that effects a kinyan. However, the proofs that are brought to resolve the uncertainty, are the very same proofs that are cited in Sukka, both of which relate to the suitability of the lulav for the mitzva. Rashi explains:

 

Since regarding suitability [for the mitzva] it disqualifies, regarding acquisition it is considered a change that effects a kinyan. (Rashi, 96b, s.v. mai)

 

            In other words, the Gemara assumes that there is a correspondence between phenomena that disqualify a lulav for the mitzva and phenomena that are recognized as a change in the lulav regarding the kinyan of a thief. This assumption is not self-evident and requires explanation. [Sh. Atlas in his commentary to Chiddushei ha-Ra'avad (ad loc.) suggests, as opposed to Rashi, that Rav Pappa's question in the Gemara in Bava Kama also relates to the lulav's suitability for the mitzva, and simply copies the passage in the Gemara in Sukka, incidental to its discussion of similar terms. In my humble opinion, this suggestion is untenable in light of the continuity of the entire passage there.]

 

            There are those who understand that the Gemara uses the laws governing disqualification of a lulav for the mitzva as a sign regarding the laws of theft. That is to say, the Gemara assumes that if a split tiyomet is disqualified, it is because it has changed from its natural state and is no longer called a lulav, and therefore it has undergone a change in name so that it is acquired by the thief.

 

This is the implication of the Ra'avad (ad loc.):

 

If the tiyomet is removed, [the lulav] is unfit. Is it not that the same law applies if it is split? This implies that it has changed and become disqualified. Here too it has changed so that he acquires it. (s.v. ba'i)

 

            The same idea is voiced more sharply by the Rama, cited in Shita Mekubetzet:

 

Since it is disqualified with respect to the mitzva, even though it is not missing anything, which implies that it is considered like mere leaves – with respect to a thief it also effects a kinyan, for originally it was called lulav whereas now they are mere leaves. (s.v. ve-ze lashon)

 

            This is also the conclusion of R. Elchanan Wasserman in his Kovetz Shiurim:

 

The change is not a result of the disqualification, but on the contrary, the disqualification is because it has changed from its natural state, and were this not regarded as a change, it would not be disqualified. (no. 112)

 

            The Ra'avad, the Rema, and the Kovetz Shiurim suggest a new understanding of the disqualification of a split tiyomet. It is not a disqualification of hadar or chasser, but rather of "lack of identity," for the palm branch lost its identity as a lulav, and turned into a bunch of leaves. We must examine which understanding of the case of a split tiyomet fits in with this definition of the disqualification, but it is clear that it cannot be reconciled with the view of Rabbenu Yerucham and the Mishna Berura, for according to all views a disqualification based on "lack of identity" applies all seven days of the festival. In order to reconcile their view, we must find a different understanding of the Gemara in Bava Kama, which infers a thief's kinyan through a change from the disqualification of a lulav with a split tiyomet.

 

The lulav's Status as a utensil

 

            It is possible to adopt an approach that is different from what we have seen thus far, namely, that the dependence of the disqualification of a lulav for the mitzva on the definition of a change in the lulav regarding acquisition is not based on a sign – if the lulav is disqualified, it is because it has changed – but on a cause – the reason that a lulav is acquired is that it has become disqualified for its mitzva, and thus has changed its identity from an object that is fit for the mitzva to an object that is unfit for the mitzva. This follows from the words of a disciple of the Rashba and the Rosh:

 

Since at first it had been fit for the mitzva, and now it is unfit, it is also regarded as a change that effects a kinyan. (s.v. ba'i)

 

            This explanation has a very important ramification – the Gemara's conclusion that a split tiyomet is regarded as a change that affects a kinyan applies exclusively to a lulav that was to be used for the mitzva on Sukkot, for only in such a case does a lulav lose its identity as an object of mitzva. This is also implied by the wording of another Rishon:

 

If a person stole a lulav that was to be used for the mitzva and the tiyomet split while in his hands, since it became disqualified for its mitzva, it no longer bears the name "lulav," and he acquires it with this change. (Piskei Ri'az, introduction to chap. 9 of Bava Kama, no. 9)

 

Earlier we brought the words of the Kovetz Shiurim who supported the first approach. At the beginning of his discussion, however, he supported the understanding that we are now discussing, but he raised an objection from the halakha rising from a later Mishna (96b), that one who mutilates the ear of an animal does not acquire it by way of the change, despite the fact that the animal can no longer be offered as a sacrifice. Owing to this objection, he rejected this understanding.

 

There is a simple resolution of this difficulty: there is a basic difference between a lulav and an animal. An animal is an object with a clear identity, which among many other things can be offered on the altar as a sacrifice. Disqualifying the animal for sacrifice does not change its basic identity, even if we are dealing with a consecrated animal that had been designated for sacrifice (see Tosafot 98a, s.v. ha-tzorem, who understand the case of the Mishna in this fashion). A lulav, on other hand, is an article whose disqualification for use for the mitzva turns it from an object of mitzva to a mere branch, which at the very best can be used as a broom.

 

The Acharonim were in doubt whether the Gemara's conclusion, that the disqualification of a lulav is regarded as a change that can effect a kinyan, is valid regarding other mitzvot as well, e.g., tzitzit or tefilin.[1]  In light of what we have said above, it seems obvious that the disqualification of tefilin should be considered a change, for we are talking about an article that is meaningless without the mitzva. As for tzitzit, it seems that a distinction can be made between an ordinary four-cornered garment to which tzitzit have been appended, and the common situation today, where tzitzit refers to a garment whose entire purpose is for the mitzva.

 

The last explanation frees us from the need to propose a novel definition of the law of a split tiyomet, but it also teaches us a new principle regarding lulav, that on the one hand it is not a "utensil" but rather a meaningless object, but its qualification for the mitzva on Sukkot defines it as a "utensil."

 

(Translated by David Strauss)

 

 

, full_html