Siman 79 Debate between the Rashba and the Rosh
Yeshivat Har Etzion
SHIUR #46: Siman 79
by Rav Asher Meir
DEBATE BETWEEN THE RASHBA AND THE ROSH
This debate is mentioned in the Shulchan Arukh, the MB, the BH, and in the citation from the Pri Megadim. Let's examine it in a little more detail. [Terminology: "A smell with a source" means that there is a particular smelly substance which is giving off a scent. "A smell without a source" means that the smelly substance has been removed but the scent remains, or that the smell comes from some gas wafting from something which is not in itself smelly. I know from e-mail that many of you read these shiurim during your lunch breaks, but you have probably already realized that this is not a shiur to be read together with your meal.]
"A bad smell with a source: Rav Huna says, one must distance oneself four amot [paces] to read KS; Rav Chisda says, four amot from where the scent stops.
There is a beraita which accords with Rav Chisda:
One may not read KS in the presence of the dung of people, dogs, pigs, or chickens, nor in the presence of the dung in a garbage heap which has a bad smell. If it was in a place ten tefachim [handbreadths] high or ten tefachim deep, one may sit aside it and read KS, but otherwise it must be out of range of sight. And the same applies for prayer. A bad smell with a source, one must distance oneself four amot from where the scent stops.
Raba said, the halakha is not in accordance with this beraita, but rather like the following beraita: One may not read KS in the presence of human dung, nor near pig or dog dung when tanning hides are soaked in them.
Rav Sheshet was asked, what about a bad smell with NO source? He replied, Look and see that in the Bet Midrash some students are learning while others are sleeping [and are liable to pass]! But that is only permissible for learning Torah, not for KS. [For KS one must move to where there is no smell.]" (Berakhot 25a)
Most Rishonim rule like Rav Chisda, since the beraita supports him. Raba did not mean to disqualify the entire beraita, only to demonstrate that dog and pig droppings are not a problem if they are not smelly. (The exception is the Rambam, who rules that one does not have to move four amot from a bad smell, but only to a place where the smell is not noticeable, just as we do for a smell without a source.)
What does the beraita mean when it says that filth which is ten tefachim deep or high is the same as if it is out of sight?
The Rosh writes as follows:
"When the dung is ten tefachim high or deep, it is permissible [to read KS there] even if one sees it. Since it is in its own separate domain, "your camp shall be holy" is fulfilled. Likewise, it seems that if one sees filth through the door of the house, one may read KS in the house even if the dung is withing four amot. As long as the smell does not reach him, this is considered a separate domain." [Rosh on Berakhot 25a, chapter 3 siman 46.]
The Rashba [also on Berakhot 25a] writes:
"If one is four amot away from the source of the smell, even though he can see it, why can't he read KS? ... It seems that according to all opinions [Rav Huna and Rav Chisda], since the Torah included both [immodesty and uncleanness] together, both of them are subject to the rule of "not being seen."
The text of the Torah reads: " ... Turn back to cover your excrement. For HaShem your God goes about in the midst of your encampment, to save you and to subdue your enemy before you; let your camp be holy, and no immodest thing shall be seen in your camp, to push away [God's presence]." (Devarim 23, end of 14 and 15.) The Rashba understands that "no immodest thing" applies also to the uncleanness mentioned in the previous verse.
According to the Rashba, filth is a problem if it is in his "camp" - vicinity - OR if it is visible, violating "no immodest thing shall be SEEN." This is what we learn from verse 15. However, we learn from verse 14 that if the uncleanness is covered up, there is no problem whatsover.
The Pri Megadim (as cited in the MB) infers, that since for the Rashba seeing is a separate transgression, learned from "no immodest thing shall be seen," it follows that SEEING prohibits only SPEAKING. We learned last week that silently thinking Torah thoughts is permissible in the presence of immodesty, though not in the presence of uncleanness. We gave then the reason, but not the source. The source is that the Torah refers to "no immodest THING" - "ervat DAVAR," and we learn from the word "DAVAR" that what is prohibited is "DIBUR" - speaking. But silent thought is permissible [MB 75:29. This is not explicit in the gemara]. It follows that the Rashba permits thinking Torah thoughts in "eyeshot" of filth.
For the Rosh, on the contrary, there is no separate prohibition of seeing - that is only for immodesty. The reason that filth needs to be out of "eyeshot" must be that otherwise it is in the see-ers figurative "encampment." It follows that if the uncleanness is really in a separate domain, there is no particular prohibition to see it. But on the other hand, when he sees it within his own domain, the problem is one of filth - not of immodesty. Therefore, even silent contemplation of holiness is prohibited. [The Pri Megadim, citing the Pri Chadash, raises another possibility: that for the Rosh also filth is a kind of immodesty - "erva." But this kind of "erva" is only forbidden within the encampment. According to this, contemplation would be permissible. This is what the MB is hinting at when he says that according to the approach of the Pri Chadash, there is no chumra according to the Rosh.]
The main halakhic dispute is far from irrelevant. Only recently I went with my family to the zoo in Tzova and encountered an impromptu minyan. It is likely that smelly substances were visible in the cages; but a cage is a separate domain. In other words, this minyan was probably permissible according to the Rosh and forbidden according to the Rashba.
How do we rule? See BH s.v. Aval and MB s.k. 16.
Assuming that there was a "sha'at ha-dachak" (it was almost sunset), how could it have been permissible to daven in the zoo according to BOTH approaches? See MB s.k. 14.
A BAD SMELL WHICH IS NOT FROM WASTE
Regarding a smell which comes from chemicals and the like, see what the MB writes in s.k. 23. Smells which come from putrefaction, but not from human or animal waste - infer the ruling from SA 85:2.
The practical halakha accords with what we explained last shiur: the problem with filth is not the unpleasantness per se, rather the fact that it exemplifies waste and decomposition. (It is obvious that if the smell is so pungent that it affects one's concentration in davening, then one should find another place to pray.)
The SA (79:8) forbids reading KS in the presence of a garbage heap (ashpa), and the MB explains that an ashpa is considered filth for all intents and purposes. What is the status of the garbage bins on the streets of Israel ("tzefardeim") - or the garbage cans in America? On the one hand, these are not like the ashpa of the SA, which was most likely a proper dung heap. On the other hand, in a typical religious neighborhood in Israel the typical garbage bin holds a lot of dirty diapers.
In the book "Tefilla Ke-Hilkheta," chapter two footnote 44, the author writes that "Kuntres Ve-Haya Machaneikha Kadosh" "goes to great lengths to demonstrate, with the approbation of the leading posekim shelita, that one should be stringent and consider garbage bins in the street to be like a chamber pot and not read [KS] as long as they are visible."
This means that practically speaking, in a good fraction of any urban religious neighborhood in Israel a Torah conversation is prohibited. Those who are lenient probably consider that most dirty diapers are both folded up and enclosed in a plastic bag before they reach the garbage bin.