Shiur 4: Meet the Gra's Commentary to the Shulchan Arukh

  • Rav Elyakim Krumbein

 

Over the course of our examination of the piyyutim issue, we made extensive use of the Gra's magnificent commentary to the Shulchan Arukh. Following this experience it is only natural that we should allow ourselves to become more closely acquainted with this work.

 

Already in the previous shiur we noted the important principle that guided the Gra in his work: uncovering the source of all the rulings in the Shulchan Arukh. He undertook this mission in order to create a unified system of the essence of the Torah together with its practical directives. To get a taste of the uniqueness of the Gra's approach, we will consider several examples from his commentary. At the end of this shiur we will return to the issue of the objective of the work, and raise a fundamental question in its regard.

 

Is there or is there not a source?

 

When we dealt with the issue of additions to the liturgy, we saw how the Gra built a new approach based on a passage in the Yerushalmi, which had been ignored by other authorities. We will open the present discussion with another case where the Gra, with his remarkable erudition, connects the issue at hand to a source that had never been considered by earlier scholars.

 

I refer to a law connected to Erev Yom Kippur. Rabbi Yosef Karo rules: "One does not fall on his face [i.e., recite Tachanun] on Erev Yom Kippur" (Shulchan Arukh, Orach Chayyim 604:2). The Rema (ad loc.) raises the question whether or not Selichot should be recited on Erev Yom Kippur, as they are recited on the rest of the Ten Days of Repentance. Since Tachanun is not recited, there would be room to say that the Selichot should also not be recited. Selichot, however,are generally recited before the break of dawn, and therefore they might be governed by a different law. The Rema writes as follows:

 

Nor does one say many Selichot before dawn. But there are places where it is customary to recite many Selichot. All [should act] in accordance with the accepted custom.

 

These two opinions can be understood in light of a comment of the Magen Avraham in the name of the Shela. There are people who are accustomed to abstain from eating meat except for on Yom Tov, apparently as a sign of mourning over the destruction of the Temple. For this matter, Erev Yom Kippur is treated like a Yom Tov, as there is a mitzva to eat a large meal on that day. A question arises, however, about the night before Erev Yom Kippur: Is it too regarded as a Yom Tov, on which these people are permitted to eat meat? Those who do not recite many Selichot before dawn apparently maintain that the night as well has the law of Yom Tov of Erev Yom Kippur. According to the second custom, to recite many Selichot as on the other nights, the assumption is that the night is not governed by the law of Yom Tov of Erev Yom Kippur. Accordingly, one who eats meat only on Yom Tov may not eat meat on that night.

 

The Gra comments on these diverse customs:

 

Their disagreement is as the Acharonim have written that they disagree about whether the night is also Yom Tov or only the day. See the Shela, brought by the Magen Avraham. And the correct position is that the mitzva to [eat] much is only during the day. This is supported by an explicit Gemara in Ketubot 5a. See Rashi (ad loc.), ibid., s.v. it lei.

 

The Gra argues that the law is that there is no mitzva to eat a large meal on the night before Erev Yom Kippur, but only during the day. He further argues that the dispute regarding this matter was already decided in the Talmud. The source cited by the Gra from tractate Ketubot states that a wedding feast should not be set for Motza'ei Shabbat, lest one come to slaughter a chicken for the celebration on Shabbat. The Gemara raises an objection that a similar problem arises when Yom Kippur falls out on a Monday, and a meal must be arranged for Erev Yom Kippur which is Sunday, and a person is liable to come to slaughter a chicken on Shabbat for that purpose. If indeed such a concern exists, we should arrange the calendar in such a manner that Yom Kippur could not fall out on a Monday! The Gemara answers as follows:

 

There he has time; here he has no time. (Ketubot 5a)

 

Rashi explains this as follows:

 

He has time – to slaughter at night, since the meal is only tomorrow.

 

Here he has no time – since the meal is at night after Shabbat immediately after it gets dark.

 

The Gemara is saying that the meal of Erev Yom Kippur is only during the day, which leaves plenty of time to slaughter after Shabbat. In contrast, the wedding meal is conducted already at night at the close of Shabbat, and therefore the concern about slaughtering on Shabbat because of the stress is very reasonable. From the fact that the meal of Erev Yom Kippur is not eaten at night, the Gra concludes that the night of Erev Yom Kippur does not have the law of a Yom Tov, and therefore one is permitted to recite Selichot at that time, as on the other nights of the Ten Days of Repentance.

 

Once again we see the Gra uncovering a source that never occurred to those who preceded him, a source which in this case does not deal directly with the matter in question. The Gra's ability to draw a connection between the issue at hand and this source in the Gemara is indeed unique and impressive.

 

However, the Gra's claim that this proof is unequivocal ("an explicit Gemara") is open to question. When we examine this source, we are likely to question the necessity of the connection between the two issues. Is it not possible, we may ask, that the mitzva to eat a large meal applies only during the day, but nevertheless, even the night of Erev Yom Kippur is considered a Yom Tov? According to the Halakha, the day always begins the night before. For example, the mitzva to feast on Purim applies only on the day of Purim, but nobody has ever suggested that the holiday of Purim begins only in the morning. What is more, it may be suggested that despite what is stated in the Gemara, there is a mitzva to eat a large meal even at night. For it may be argued that the Gemara merely relies on the fact that in practice the main festive meal of Erev Yom Kippur is eaten during the day, and toward the end of the day close to when the fast starts, and therefore there is less concern about prohibited slaughter on the previous day.

 

It may be assumed that the Vilna Gaon had answers to these questions. Nevertheless, there is room to raise doubts in the wake of this example. To illustrate the matter, I will relate the following anecdote.[1] Rav Chayyim of Brisk once met with Rav Meir Simcha Hacohen of Dvinsk, the author of the Or Same'ach, and presented him with a certain halakhic uncertainty. Rav Meir Simcha immediately quoted a talmudic source, on the basis of which he decided the matter. Rav Chayyim was greatly impressed by the brilliant connection that Rav Meir Simcha drew between the question and the talmudic source which deals with an entirely different matter. "I could easily have rebutted the proof that he offered," Rav Chayyim later told his students, "but it does not change the fact that only a great Torah authority, who has absolute mastery over the Talmud, could have suggested such an answer."

 

What we see here is a striking difference between Rav Chayyim Brisker's manner of thinking and that of Rav Meir Simcha. Rav Chayyim's strength lay in his analytical skill and precise discernment, while Rav Meir Simcha, though he was also exceedingly sharp, exploited for the purpose of his halakhic clarifications a wide range of sources, which he drew from the entire gamut of rabbinic literature and that of the Rishonim. Rav Meir Simcha exemplifies a certain type of Torah scholar, whose goal is to find a source and precedent for the matter before him. He emphasizes fluency and mastery over the sources as tools of his trade, and he believes that these are the primary means of answering all questions. In contrast, there are Torah scholars whose expertise lies in making distinctions, and they are especially capable of rejecting comparisons which on the face of it appear valid. This type of thinking, which can demonstrate why it is impossible to prove the law in one case from the law in another case, as the two cases are not the same, limits the possibility of reaching absolute answers. Such a situation may bother us, but on the other hand we may be enchanted by the idea of living with doubts and unanswered questions. In any event, Rav Chayyim Brisker would not have had a problem rejecting Rav Meir Simcha's analogy, but nevertheless he complimented the greatness displayed by his approach.

 

I related this story in connection with the Gra's approach. We know that locating the source of every halakhic ruling was his chosen path, part of his developed scholarly ideology. It is likely that this approach assumes that uncertainties and ambiguities stem from a lack of knowledge, and locating the correct source, if we know how to use it, is the key to clearing the fog. When we find such a connection in the course of some ingenious process, it is very impressive and we can easily be convinced that here is the solution: the sources have not disappointed us. But the questions we have raised regarding the relevance of the concern about prohibited slaughter before Erev Yom Kippur to the definition of the night as part of the Yom Tov, are likely to draw us to study of a different type – study that doubts the necessity of textual proofs, and therefore from the outset invests less in them. The preference will be to clarify the logic of the two possible halakhic positions, while leaving the practical question undecided (as we find that the Rema did not decide about our issue).

 

The Interpretive policy of the commentaries to the Shulchan Arukh

 

Let us now consider another example, where we will compare the Gra's commentary to the explanations given by other authorities. The discussion relates to a man who died, after his wife had predeceased him, and he left sons, daughters and limited assets.

 

As is well known, by Torah law, sons inherit their father's estate, while daughters inherit only if there are no sons. The Sages, however, enacted certain ordinances that transfer part of the father's estate before the Torah law is applied. In our case, there are two ordinances that must be applied, but since the man left only limited assets, the question arises which ordinance is given preference:

 

1) The daughters demand their dowry, that is, a portion of the estate that the sons must give their father's daughters as her dowry for marriage.

 

2) The sons demand ketubat benin dikhrin, "the ketuba of male children." The Sages ordained that if a woman predeceases her husband, so that she personally will never receive her ketuba (if a man predeceases his wife, she receives her ketuba), her ketuba does not disappear, but rather her sons, upon their father's death, inherit her ketuba. While the sons inherit their father's estate in any event, this ordinance is relevant in a case where the father also has children from another wife. Upon the death of the father-husband, the sons of each wife first inherit their mother's ketuba (the difference between the ketubot is liable to be large), and only afterwards is the rest of the estate divided equally among all the sons, in accordance with Torah law.

 

When the estate is large, there is enough for both the daughters' dowries and the sons' ketubat benin dikhrin, and there even remains a portion that is divided, in accordance with Torah law, exclusively among the sons. In our case, as stated, the assets are limited and do not cover both the daughters' dowries and the sons' ketubat benin dikhrin. The question arises who is given priority – the sons or the daughters? The Rema rules that in such a case:

 

The daughters' dowries are paid out before ketubat benin dikhrin. (Even ha-Ezer 113:6)

 

On what is this priority based? To answer this question, one might propose a reasoned argument, or else one might suggest a source. In light of what we have already seen, it should come as no surprise that the Gra will choose the second option, but in the case before us, it is instructive to compare what he says to the classical commentaries that preceded him.

 

Let's start with one of the most important commentators to Shulchan Arukh – Even ha-Ezer, the author of Chelkat Mechokek. He begins by raising a difficulty with the law:

 

Even though ketubat benin dikhrin is a condition of the ketuba and a debt falling upon the father, even so, the daughters' dowries are paid out first….

 

According to this, not only do we not understand the rationale of this law, but the logic is even reversed. For ketubat benin dikhrin should in fact be given priority over the daughters' dowries, as the father's obligation to leave his sons their mother's ketuba is part of his commitment to his wife, made at the time of their marriage; whereas the obligation to provide his daughters with dowries is later, created only in the wake of the father's death.[2] Should not by right priority be given to the earlier obligation to the sons, over the later obligation to the daughters? The Chelkat Mechokek explains why the daughters are shown preference:

 

For the sons as well are obligated to provide a dowry [even] from their inheritance by Torah law, and all the more so from ketubat benin dikhrin, which [they receive only] by rabbinic enactment.

 

The logic here is clear. Indeed, when we are dealing with two debts, we give priority to payment of the debt that had been created earlier. But when one of the debts is not treated like a debt, but rather it is defined as an inheritance that was received, the heirs must repay the other debt - even if it was created later – from the money they inherited. In our case, the obligation to pay the dowry was created later, with the male heirs and not with their father. But from what money should they pay this debt, if not from their inheritance? Surely ketubat benin dikhrin – by rabbinic decree – is part of the inheritance that passes to them. Therefore, should this be necessary, they must provide their father's daughters with dowries even from that part of their inheritance.

 

From where did the Chelkat Mechokek draw this explanation? From the words of one of the most important Rishonim, the Ran. And indeed, in the text of the Shulchan Arukh, the Ran is noted in parentheses as the source of this ruling. Not only does the Ran provide us with the logical rationale that we saw in the Chelkat Mechokek, but he also offers a source.

 

The Ran speaks of two situations – when there is a widow in the picture, and when there is no widow. Of course, when there is a widow, there is no ketubat benin dikhrin, and the ketuba is claimed by the widow herself. In this situation, there are two claims against the male heirs: the widow claims her ketuba, and the daughters claim their dowries. In such a case, the struggle is between two debts, one earlier and one later, and therefore the widow is shown priority, because the obligation towards her preceded the obligation to the daughters.

 

However, the Yerushalmi states that "the daughters' dowries are paid out before the ketuba," in contradiction to the words of the Ran. The Ran is aware of the Yerushalmi, and he answers that the Yerushalmi is referring to a case where there is no widow. The "ketuba" mentioned in the Yerushalmi is ketubat benin dikhrin. While it is true that the obligation of ketubat benin dikhrin was also created before the obligation of the dowries, "the Rabbis made [ketubat benin dikhrin] like an inheritance [by rabbinic decree], and just as the daughters take their dowries in a place where the sons receive an inheritance by Torah law, so too they take their dowries in a place where [the sons receive] ketubat benin dikhrin."

 

We see then that the Ran mentions a source for our law (the Yerushalmi), and also explains the logic underlying it. From all this, what interests the Chelkat Mechokek, who in essence copied from the Ran? He mentions only the logical explanation, but disregards the source in the Yerushalmi. The source is not very important to him, whereas the rationale "reigns supreme"! What is important is that the student should understand the logic of the priority mentioned by the Shulchan Arukh.

 

The Vilna Gaon, as well, follows in the footsteps of the Ran, only that he formulates the matter in an entirely different way. He comments on the ruling of the Rema, that the daughters' dowries are paid out before ketubat benin dikhrin:

 

Yerushalmi, chapter Mi she-haya nasui: Dowries and ketuba - dowries are paid first. That is to say, ketubat benin dikhrin, for the original ketuba is certainly paid out before [the dowries], as the woman is the father's creditor. 

 

We see then that the Gra takes from the Ran the source, the passage in the Yerushalmi, which states that dowries are paid out before the ketuba. You might say that perhaps the Yerushalmi is not relating to our case, but rather to the case of a widow who is demanding payment of her ketuba. This, argues the Gra (in the wake of the Ran), is impossible, for the obligation regarding the ketuba was created before the obligation regarding the dowries, and so it should certainly be paid out first. This proves that the Yerushalmi is not dealing with a ketuba, but rather with ketubat benin dikhrin.

 

The Vilna Gaon clarifies the intent of the Yerushalmi, but he does not deem it important that we understand why payment of the dowries should take precedence. The important thing is that we should know from where this law is derived. In that way, according to the Gra, the law becomes "understood."

 

To summarize, two commentators set out from the original discussion of the Ran, each of them adopting the most important element from his respective perspective: the one chose the rationale, whereas the other opted for the source.

 

Form and content: Does the commentary achieve its goal?

 

In our discussion thus far we have noted the significance of the Vilna Gaon's choice of scholarly approach: the belief that this is the way to solve dilemmas; the position that finding the source, in and of itself, explains the law; and the contrast between this principled position and other methods in the study and interpretation of Jewish law. We have not yet exhausted the potential latent in the Gra's unique approach, but for that we will have to wait for another opportunity.

 

I wish to dedicate the end of this shiur to a fundamental question. I would like to shift our attention from the content of the Gra's words to their external form. With each of the citations that we brought, we made sure of course to translate as though all the acronyms and abbreviations that appear in the printed edition of the Gra's commentary were "opened" and made explicit. But in the book itself, the text looks very different.

 

We are impressed by the Gra's extensive and extreme use of abbreviations and acronyms (which he may be willing to forego when citing relatively uncommon sources, e.g., the Yerushalmi.) This aspect of the Gra's writing makes his commentary into one of the most difficult commentaries to read, and in practice it hinders its use. Given a choice, we prefer to examine a more readable commentary, whose formulations are full and transparent. In recent generations various super-commentaries have been written on the Gra's commentary, which were intended to open up his words to the reader. These commentaries constitute a rewriting of the Gra's work in long and clear sentences, with full citations of the sources.

 

Rabbi Israel of Shklov already noted the Gra's "love of brevity," and presented us with certain rules to help in deciphering his concise writing. For example, when the Gra cites a source, he usually cites those words that he wishes to emphasize or explain, and the rest he notes with "etc." In most cases, however, it is impossible to understand the citation without knowing what stands behind the "etc." The expectation, of course, is that the student will open the book and examine it independently. The Gra also relies on the reader when he frequently writes the word "there." This term in the Gra's commentary refers to a source that was already mentioned. But where? The possibilities, says Rabbi Israel of Shklov, are numerous. It can be a source that the Vilna Gaon himself mentioned previously, or else a source mentioned in the reference printed in the text of the Shulchan Arukh,[3] or a source brought in the Be'er ha-Gola commentary to the Shulchan Arukh, which also cites sources.

 

This brevity greatly magnifies the difficulty of deciphering what the Gra is saying, and limits the use of his commentary to a narrow scholarly elite. This brings us to an uncomfortable question, regarding the goal and purpose of the entire enterprise.

 

We have already mentioned in the name of the Gaon's students that the commentary expresses a scholarly-spiritual statement, intended to fashion and guide Torah study and halakhic practice. The work involved a huge investment, and it stands to reason that its author wished that it be published, for he himself certainly knew (and remembered) what he wrote, and it is unlikely that all the pages that he filled were intended solely for his personal use. Did he not understand that his style of writing is almost an "own-goal"? How can we reconcile the Gra's desire to spread his approach to Torah study with the medium that he chose – a commentary written with extreme brevity, one that demands from the student an exceptional investment of time and effort in order to understand what the Gra means to say?

 

I do not know whether there is a full answer to this weighty question. In any event, we will return to it in the next shiur.

 

(Translated by David Strauss)



[1] I was told this story by a respected Torah scholar, Rav Chayyim Glicksberg, the rabbi of Givatayim and a member of the Chief Rabbinate council.

[2] As for a daughter who marries during her father's lifetime, the Sages did not formally obligate the father to provide her with a dowry, but rather sufficed with the customary practice of fathers to make the necessary arrangements.

[3] This is the case in our example: the Gra refers to the Ran who is cited in the parentheses in the Rema's gloss.