The Status of a Sleeper — Eruvin 38b

The Status of a Sleeper — Eruvin 38b

תלמוד בבלי מסכת עירובין דף לח/ב

עד כאן לא פליגי רבנן עליה דרבי יוחנן בן נורי אלא בישן דלא מצי אמר אבל בניעור דאי בעי למימר מצי אמר אף על גב דלא אמר כמאן דאמר דמי.

"The Shechinah rests" on any group of ten (male) Jews. Indeed, Rabbeinu Tam (Tosafos, Berachos 48a d.h. V'leis) maintains that this is the case even if one of them is a baby in his cradle! Thus, Hagahos Maimonios (Hil. Tefillah 8:9 in the name of Maharam) writes that even if one of the group is davening and not paying attention to a shaliach tzibbur, the group is still considered complete and may recite devarim she'b'kedushah. Maharil (Teshuvos, §150) extends the logic further, and rules that even a person who is sleeping may be included in a minyan — despite the ruling of the Rosh (Teshuvos 4:19), that all of the other nine men must be paying attention to the shaliach tzibbur. Maharil suggests that his own ruling may be sustained on the basis of the custom to include everyone present in a minyan, even if they are involved in mundane conversations. Nevertheless, concludes Maharil, perhaps the principle that "mixing does not impede any amount that is capable of being mixed, but mixing does impede an amount that is not capable of being mixed" (כל הראוי לבילה אין בילה מעכבת בו וכל שאין ראוי לבילה בילה מעכבת בו) requires that the person be awake, and capable of responding to the devarim she'b'kedushah, even if he does not respond. Hence, a person who is asleep and incapable of responding could not be included in a minyan.

In our Gemara, the Sages maintain that a person who is awake may transact eruvei techumin even if he does not articulate the proper formula; while a person who is sleeping may not transact eruvei techumin. R' Yosef Engel (Gilyonei HaShas) notes that our Gemara clearly reflects the dissenting position — viz., that the person need at least be awake.

Mishnah Berurah (54:32) rules that one should certainly not include more than one sleeping person, since many authorities rule that even one sleeper cannot be counted towards the minyan. (See Emek Berachah pp. 13-14 that the source for the inclusion of one, and no more, is the Gemara in Berachos [loc. cit] which considers the inclusion of a Sefer Torah or Aron in a minyan, but only as the "tenth man." See also Rashi to Bereishis 18:32).

Conditions that are not yet extant — Eruvin 37b

Conditions that are not yet extant — Eruvin 37b

תלמוד בבלי מסכת עירובין דף לז/ב

אמר ליה אביי אלא מעתה היו לפניו שני רמונים של טבל ואמר אם ירדו גשמים היום יהא זה תרומה על זה ואם לא ירדו גשמים היום יהא זה תרומה על זה הכי נמי בין ירדו בין לא ירדו דאין בדבריו כלום.

Abaye challenges Rava with the case of a person before whom there rested two untithed pomegranates. The person said: "If it rains today let this one be terumah on that one, but if it does not rain, let that one be terumah on this one." Abaye clearly understands this condition to be a valid condition.

Maharam MeRutenberg (Teshuvos, §939) considers the following case: Reuven had a minor son and Shimon had a minor daughter. Shimon obligated himself in writing to Reuven that when Reuven's son would become an adult, Shimon would marry his daughter to Reuven's son. Shimon stipulated that if neither he nor his daughter would accept Reuven's son's offer of marriage, then he would pay Reuven a specified penalty. In the end, however, Shimon died before Reuven's son reached adulthood, and when Shimon's daughter reached adulthood, she married someone else. However, Maharam exempted Shimon's estate from paying Reuven the promised penalty, as Shimon was prevented from fulfilling his obligation through no fault of his own (אונס רחמנא פטריה).

Maharam rejects the possibility that Shimon's estate is exempt for another reason: Because the stipulated condition involves a scenario that could not possibly take place at the moment — viz., the marriage — because a minor boy cannot contract a marriage. Maharam explains that this is because the concept of "a thing that has not yet come to the world" (דבר שלא בא לעולם) is only an issue when it comes to the object that is the subject of a transaction. For example, in the case in question, if the promised penalty was not extant at the time of the obligation, the transaction would be void (אין אדם מקנה דבר שלא בא לעולם). A stipulated condition, however, need not be extant at the time of the transaction. As proof of this principle, Maharam cites our case, in which Abaye takes it for granted that a transaction may be contingent on whether it rains, or not — a condition that has not yet come to the world.

Chazakah Shaliach Oseh Shelichuso [We assume an agent fulfills his agency] — Eruvin 32a

Chazakah Shaliach Oseh Shelichuso [We assume an agent fulfills his agency] — Eruvin 32a

חזקה שליח עושה שליחותו

1. In accordance with the Gemara here, the Mishneh LaMelech in the fourth chapter of Hil. Bechoros rules that the assumption that an agent fulfills his agency is not effective immediately, but only at the end of the day. Hence, even if a person appointed an agent in the morning, he cannot assume that the agency is fulfilled until evening.
2. The Mishneh LaMelech also rules that the assumption that an agent fulfills his agency only applies in regard to a matter that the agent can complete on his own, such as to slaughter an animal or separate terumah. However, in regard to a matter which the agent cannot complete on his own, such as the sale of chametz, we are afraid that the other party might not participate in the process, and therefore in such cases we cannot assume that the agent fulfills his agency.

[Mishneh LaMelech bases this ruling on Tosafos, Gittin 64a (d.h.Assur). The Gemara there rules that if a person appointed an agent to marry a woman on his behalf and the agent does not return to identify the woman, he is forbidden to marry all the women in the world, lest they be forbidden relatives of his wife. Tosafos write that this ruling is a penalty, not the strict letter of the law — because the fulfillment of this agency requires another person's participation. Moreover, although the Ramban (ad loc.) disagrees with the Tosafos, Mishneh LaMelech explains why this argument is unique to the case of marriage and not applicable to other cases (see also Melo HaRo'im, Shaliach Oseh Shelichuso §5).]

A Person Who Deliberately Traveled Beyond Techum Shabbos — Eruvin 29a

A Person Who Deliberately Traveled Beyond Techum Shabbos — Eruvin 29a

תוספות מסכת עירובין דף כט עמוד א

והושיבו ר' מאיר בד' אמותיו - חוץ לעיר היה דבעיר היה מהלך את כולה כדאמר במי שהוציאוהו (דף מא:) ... ועוד כיון דחשבינן כל העיר כארבע אמות אפילו במזיד נמי מהלך את את כולה דמזיד נמי אית ליה ארבע אמות ...

According to the Tosafos (d.h. V'Hoshivo), a person who deliberately traveled beyond his allotted Techum Shabbos is only limited to the four amos in which he comes to a halt when those four amos do not happen to be in an enclosed city. However, if this person halted within a city (or within any other form of enclosure, such an airport), he is permitted to walk throughout the city.

The Beur Halachah, Orach Chaim 405:6 (d.h. Aval) notes that the Rambam and Shulchan Aruch dispute the Tosafos on this point. They hold that the person who deliberately traveled beyond his allotted Techum Shabbos is even limited to the four amos in which he comes to a halt when those four amos indeed do happen to be in an enclosed city. Normally, in the case of a dispute such as this one — i.e., one that concerns a Rabbinic Decree — we would rule in accordance with the lenient position (ספק דרבנן לקולא). In this case, however, the Beur Halachah cites many authorities who disagree with the Tosafos, and seeing that the disagreeing authorities make up a significant majority, he states that one may not conduct oneself leniently, and must therefore remain within the four amos in which he haltes, even if they are within an enclosed city.

"Down Time" — Eruvin 28b

"Down Time" — Eruvin 28b

ר' זירא כי הוי חלש הוי אזיל ויתיב אפתחא דרבי יהודה בר רבי אמי אמר כי נפקי ועיילי רבנן איקום מקמייהו

In the course of its deliberations here, the Gemara tells us that when R' Zeira felt weak, he would sit outside the door of R' Yehuda, so that he could stand up in honor of the rabbis that entered and exited the house.

The Kav V'Yashar (Chap. 45) learns from this Gemara a general principle, that a person should strive to always occupy himself with mitzvos. He states that he received a tradition from "Anshei Ma'aseh" ("Men of Deeds") that when they found themselves idle — i.e., not involved in performing any specific mitzvah — they would finger their tzitzis and look at them. He explains that from a Kabbalistic perspective as well, looking at tzitzis is an activity of great weight which helps in the process of restoring the Divine Presence to its proper place in the world.

The Kav v'Yashar reveals a little of the Kabbalistic significance of looking at tzitzis, with a fascinating gematriya: A person looks at the tzitzis with two eyes. An eye, in Hebrew, is Ayin — the numerical equivalent of 130, so two eyes are the numerical equivalent of 260. The word tzizis itself (which is spelled ציצת in the Torah) is the numerical equivalent of 590. Together, the two numbers equal 850, the numerical equivalent of the word techeles. Hence, posits the Kav v'Yashar, a person who focuses his eyes on his tzitzis fulfills the purpose of techeles even in our day and age.