Mesorah: The Relationship between the Written and Oral Torah

I will begin our discussion by quoting the beautiful words of Rav Hirsch, explaining the relationship between the words of our written Torah and the laws of our Gemara:

The relationship between the Written Torah and the Oral Torah is like that between brief written notes taken on a scientific lecture, and the lecture itself. Students who attended the oral lecture require only their brief notes to recall at any time the entire lecture. They often find that a word, a question mark, an exclamation mark, a period, or the underscoring of a word is sufficient to bring to mind a whole series of ideas, observations, qualifications, and so forth. But for those who did not attend the instructor’s lecture, these notes are not of much use. If they try to reconstruct the lecture solely from these notes, they will of necessity make many errors. Words, marks, and so forth, that serve the students who listened to the lecture as most instructive guiding stars for the retention of the truths expounded by the lecturer appear completely meaningless to the uninitiated. The non-initiate who will attempt to use these same notes in order to construct (as opposed to reconstruct) for himself the lecture he did not attend will dismiss what seems unclear as baseless mental gymnastics and idle speculations leading nowhere.[i]

Thus, we see that the Oral Torah is indispensable for a proper understanding of the Written Torah.

The Rambam[ii] divides all the myriad laws of the Torah into three basic categories:

  1. Those that we know on the basis of mesorah, that is, we have a direct tradition from each generation’s greatest Torah leaders to its teachers of the previous generation, and this tradition can be traced directly back to Moshe Rabbeinu, who, in turn, was taught these laws by Hashem during his sojourn on Har Sinai. For this reason, the Rambam, both in the Introduction to his Mishneh Torah and in the Introduction to his Commentary to the Mishnah, lists the entire chain of the mesorah from Moshe Rabbeinu until the completion of the Talmud. Every law included in this first category was, itself, transmitted by the leaders of each generation to the next in an unbroken chain.
  2. Those laws that are derived from the Written Torah on the basis of rules that we were given at Har Sinai. In this instance, we were provided with the Written Torah as the lecture notes described above by Rav Hirsch, and accompanied by a detailed explanation of how to apply logic to derive and understand more details of these mitzvos. Any laws derived this way qualify as min haTorah.
  3. Those laws that were introduced by the Sages of each generation in fulfilling their role, as mandated by the Torah, to safeguard the observing of its commandments. This category includes also completely new mitzvos that Chazal introduced, such as kindling the Chanukah menorah, the various observances of Purim and washing one’s hands before partaking of bread.

The Rambam notes that there is a very sharp distinction between the first two categories, notwithstanding the fact that the laws of both are min haTorah. There cannot be any dispute about the veracity of any law that is in the first category, since all laws are based on mesorah. To quote the Rambam, divrei kabbalah lo naflah bahem machlokes le’olam, there can never be a dispute regarding concepts that are based on our Oral Tradition.

On the other hand, as the second category is based on logic, there will, of necessity, be differing opinions as to how to interpret and understand halachic concepts. As our Sages teach, just as no two people look the same, no two people think the same.[iii] Therefore, any time we discover a dispute between sages of the Mishnah or Gemara, the law being debated must fall under either the second category or the third, but it can never belong to the first.

A related difference between the two categories is that a Beis Din Hagadol of a later generation has the right and ability to overturn the ruling that is of the second category, but it cannot overturn a law that is based on mesorah from Har Sinai.

In the Introduction to his Commentary to the Mishnah, the Rambam divides the first category into two different subcategories, both of which include only laws that we were taught by mesorah. The Rambam calls the first subcategory peirushim hamekubalim, explanations of the verse that we know to be true on the basis of our mesorah. The second subcategory includes all laws that we know exclusively from mesorah without any allusion at all in the “lecture notes” – that is, the Written Torah.

Allow me to explain the difference between these two subcategories: The Torah instructs us to take on Sukkos the fruit of a beautiful tree, branches of date palms, twigs of a plaited tree and willows of a stream. In these two instances — the fruit of a beautiful tree and the twigs of a plaited tree — the notes provided by the Torah are insufficient on their own to identify which items are intended. However, those who attended the original “lecture” were told that the fruit of a beautiful tree means an esrog, and that the twigs of a plaited tree refers to hadasim. The mesorah explaining these oral lecture notes was transmitted by Moshe to Yeshoshua and the other great leaders of his era. They then transmitted this to the leaders of the next generation, and so on, until they were codified in the Mishnah and later in the Gemara. This subcategory is called peirushim hamekubalim.

On the other hand, there are concepts that are not alluded to in the lecture notes of the Written Torah. These were supplied completely via mesorah. For example, the laws of sukkah, or, more accurately, of the construction of “walls,” include concepts called gud and lavud. These laws have no basis in the Written Torah. This means that there is no mention whatsoever in the lecture notes and they therefore comprise the second subcategory. Chazal call this latter subcategory halacha leMoshe miSinai, meaning laws that are known only because of the mesorah of what Moshe was taught at Har Sinai.

Again, both of these two subcategories are laws that we know on the basis of mesorah, and whose veracity is never disputed, in the Rambam’s opinion. The difference between the two subcategories is that what is included under peirushim hamekubalim is something that we may have understood without mesorah on the basis of logic and the Written Torah, whereas we would never have known about a halacha leMoshe miSinai without our mesorah. Thus, the Gemara[iv] demonstrates several ways in which one may derive that the “fruit of a beautiful tree” is indeed an esrog, even had we not been provided this information in our mesorah. However, we would never have known the laws of gud and lavud without a mesorah.

Nisuch Hamayim

The mitzvah to pour water on the altar on Sukkos provides insight into another curiosity. The Gemara[v] cites approaches that derive this mitzvah by means of lecture notes in the Written Torah. Rabbi Yehudah ben Beseirah derives the mitzvah from the otherwise unnecessary letters mem, yud and mem (spelling mayim, water) in the words describing the wine libations on the second, sixth and seventh days of Sukkos. A different opinion, that of Rabbi Nechunya, says that this mitzvah is completely halacha leMoshe miSinai. [vi]

According to both opinions, the law is the same, and it was taught via a mesorah from Sinai. The dispute between the two opinions is under which subcategory this mitzvah should be included. Is it similar to esrog and hadas, in that a careful reading of Written Torah will teach the existence of this mitzvah, or is it like gud and lavud, that even the most careful reading of the Written Torah would not teach this law without our oral mesorah?

What if we forget a mesorah?

The Gemara[vii] states that thousands of laws were forgotten during the days that the Jewish people mourned Moshe Rabbeinu’s passing. However, the majority were restored through the brilliant analysis of Asniel ben Kenaz. Are these now mesorah, or based on logic? The answer is that although they were originally mesorah, they are now based on logic, notwithstanding the fact that there is no dispute about them.

None of us is as brilliant as Asniel. We accept that this is part of the halacha because we know that the Beis Din Hagadol accepted Asniel’s logic. This concept will become important in the rest of our discussion.

So far, we have explained the two subcategories, both of which are aspects of the first category – laws that are part of the mesorah that we were taught at Har Sinai. As I mentioned above, the second category of the Torah’s laws are laws that are derived from the notes of the written Torah on the basis of the principles that the Torah taught. Since these laws are interpreted through logic, there will be disputes that occur. Whenever we find a dispute recorded in the Mishnah and the Gemara, it can only be regarding a law that falls under either the second or third of the Rambam’s three categories. If a dispute regards a Torah law, it will always be in regard to a law that is part of the second category, and the dispute will be based either on two differing interpretations of a verse, on two differing interpretations of a halacha leMoshe miSinai,[viii] or on a dispute how to apply one of the rules that the Torah provided for interpreting the Written Torah. According to the Rambam, there is never a dispute with a position that is based on mesorah.

It occasionally happened that a great Torah leader received the mesorah of a halacha and a different leader was aware of the halacha but had not received the mesorah upon which it is based. In such an instance, the opinion that cites a mesorah as the source becomes the halachic basis for the law.[ix]

Who Decides?

When there is a dispute among gedolei Yisrael concerning how to interpret the words or concepts of the Torah, it is the duty of the Beis Din Hagadol, also known as the Sanhedrin, to decide which approach is the final halacha that Klal Yisrael will follow. In the era that the Beis Din Hagadol functioned, all disputed matters were brought to its attention for a ruling. Unfortunately, the Beis Din Hagadol has not functioned for many hundreds of years, and that is why, today, we are often left with unresolved disputes.[x]

The Torah teaches that a great scholar who refuses to follow the ruling of the Sanhedrin and persists in ruling differently from their decision is guilty of a capital offense and is called a zakein mamrei.[xi] The reason why the Torah treats this offense so seriously is that otherwise Klal Yisrael would become divided into many divergent groups, and we would lose our unified Torah.[xii]

The Story of Akavya

Let us digress to explain an often misunderstood Mishnah. The Mishnah[xiii] teaches that Akavya ben Mahalallel, considered perhaps the greatest Torah scholar of his generation, disagreed with the other Torah leaders of his generation and was a minority of one in four different disputes. The other Sages recognized Akavya’s tremendous scholarship and offered to make him the Av Beis Din, the head of the Sanhedrin, on the condition that he simply recant his position in these four areas. He rejected this offer because he considered it tantamount to falsifying the Torah.[xiv] Yet, when Akavya lay dying, he instructed his son to reject his positions on all four issues in favor of those of the other Sages. When his son asked him why Akavya, himself, would not withdraw his opinion, yet instructed his son to do so, Akavya answered: The opinion that I hold is because I heard this from the majority of Sages of an earlier generation, and therefore I am bound by what I heard. However, you heard this position only from me, and I am now a minority. You are bound by what you heard to be the majority position, which disagrees with me, and you should therefore follow the position of the majority.[xv]

It is apparent that the dispute between Akavya and the other Sages was not over a question of mesorah, for then there could have been no dispute. The dispute between them was based originally on a position that had been arrived at through logic. Akavya and the other Sages disputed what was the conclusion of the earlier generation. Since this was a position based on logic, they were freely able to do so.[xvi]

Was Akavyah a zakein mamrei?

Since Akavyah refused to accept the authority of the rest of the Sanhedrin, why did he not qualify as a zakein mamrei? The Gemara[xvii] asks this question and cites a dispute on the subject. The approach that is accepted is that, notwithstanding the fact that Akavyah opposed the decision of the Sanhedrin, he refrained from ruling for people. Although he would explain that he disagreed with the ruling of the members of the Sanhedrin, he would never tell someone to follow his position against theirs.

Can the Transmission be Faulty?

The Rambam emphasizes the vast difference that exists between these two categories: laws that are based on mesorah and those that are arrived at by logically applying the rules of halachic interpretation. To quote him:

Some think that there could be a dispute that is based on an error in the transmission of the laws or based on forgetfulness or because one scholar received the mesorah truthfully whereas a different scholar erred or forgot or simply never heard all that he should have heard… this is an improper approach and these are words of someone who is without common sense and is missing the basics. He is defaming the great men from whom we received the commandments. This entire approach is null and void. What caused people to make this terrible error is insufficient examination of the words of the Sages that are found in the Talmud. They found that every peirush hamekubal [the first category] that originates from Moshe is true, and they did not realize that there is a difference between the basics [laws in the first category] and those that are derived by logical analysis [the second category].[xviii]

Notwithstanding the sternness with which the Rambam presents this position, we will see that not all Rishonim accepted his premise. In other words, other Rishonim understood that there could be a dispute among great gedolei Yisrael in which both sides claim that they received the halachic information as a mesorah.

Here is one case where we see this. On Pesach, the Torah prohibits consuming either chometz or sourdough, the inedible yeast-like product that develops when one allows dough to over-leaven. One who consumes an olive-sized quantity of chometz on Pesach is liable for the punishment of kareis. The Mishnah[xix] records a dispute between Beis Hillel and Beis Shammai concerning the minimum quantity for a person to be legally responsible for consuming sourdough on Pesach — is it the size of an olive or the size of a date? In two different places, the Gemara debates at length what is the basis for the dispute, concluding that it is contingent on how one interprets the germane verses. However, Tosafos[xx] asks why the Gemara did not present a simpler approach: Since we have a general statement that the sizes of the measurements of the Torah are generally derived as halacha leMoshe miSinai, why did the Gemara not simply explain the dispute between Beis Hillel and Beis Shammai as being what the original mesorah from Sinai had been, Beis Shammai accepting the mesorah to have been the size of a date, and Beis Hillel the size of an olive. Regardless of how Tosafos answers this question, obviously Tosafos accepts the possibility that two disputing authorities could have disagreeing traditions concerning what we were taught at Sinai, and that it is not anathema to say that someone’s mesorah on a halacha leMoshe miSinai is wrong.

Kicking Pebbles

We will now explore another halachic discussion where we see the predominantly accepted approach does not agree with the Rambam. Here is the background to the subject:

The Torah[xxi] rules that if an animal trespasses into private property, its owner must compensate for the damage it caused. The discussion that concerns us is about damage that resulted from an animal kicking pebbles or moving some other item that, as a result, damaged property. The Mishnah[xxii] rules that the owner of the animal is obligated to pay for only half the damage caused when this happens, a concept called chatzi nezek tzeroros, half of the damage caused by pebbles.

What is the basis for this ruling? The Gemara[xxiii] states hilchesa gemira la, it is a law that we know from tradition, which Rashi[xxiv] explains to mean that it is a halacha leMoshe miSinai.[xxv]

The Gemara[xxvi] mentions that there is one Tanna, Sumchus, who disagrees with the concept of chatzi nezek tzeroros, and requires the owner to pay full damages.[xxvii] This, of course, leads us to a question. Once the Rambam has ruled that there can be no dispute regarding a halacha leMoshe miSinai, how could there be a dispute between Sumchus and the other Sages regarding the concept of chatzi nezek tzeroros?

The Netziv[xxviii] answers this question by noting that the Gemara never says that chatzi nezek tzeroros is a halacha leMoshe miSinai. Rather, the words of the Gemara are hilchesa gemira la, a law that we know from tradition. He explains that, in the Rambam’s opinion, there was never a halacha leMoshe miSinai concerning chatzi nezek tzeroros. An earlier generation’s Beis Din Hagadol had ruled that when an animal damages through tzeroros the owner is required to compensate for only half the damage. This earlier ruling was based on reason, although we are no longer aware of the logical basis. This could perhaps be compared to the type of analysis with which Asniel restored thousands of forgotten laws, and upon which the elders that Akavya quoted had ruled.

Sumchus disputed the ruling of the earlier Beis Din. The Sages, who held that the owner should pay half damages, held this opinion because of an old tradition that they had received from earlier generations – but no one claimed that this tradition’s source was from Moshe Rabbeinu at Har Sinai.

This approach resolves how the Rambam would explain this Gemara, but leads us to a new, interesting conclusion. Although the Rambam feels very strongly that there can be no argument regarding anything claimed to be a halacha leMoshe miSinai, Rashi here disagrees with this assumption, since he understands the leniency of tzeroros to be a halacha leMoshe miSinai, yet Sumchus denies that this leniency exists. This dispute means that although one authority claims that he knows a certain law to be a tradition from Sinai, a different sage could question whether this tradition is accurate.

An early acharon, Rav Yair Chayim Bachrach,[xxix] goes to great length to dispute the Rambam’s position that divrei kabbalah lo naflah bahem machlokes, rallying many sources that he feels prove that this principle is not accurate. On the other hand, the Maharatz Chayes[xxx] devotes an essay to proving that the Rambam’s principle is correct, despite the fact that he, himself, notes that there are other Rishonim who disagree with the Rambam.

Perhaps one can suggest the following approach to minimize the dispute among the Rishonim. Let us assume, for a moment, that the great Tanna’im knew that a certain halacha is observed, but no longer remembered its source. Would it be wrong to say that someone suggested that its source might have been a halacha leMoshe miSinai, that was since forgotten? If so, perhaps we could explain that both Rashi and the Rambam understood the case of tzeroros in a similar way. The Sages knew that an earlier generation had ruled that the owner is obligated to pay for only half the damages, but they no longer remembered the reason. The Sages suggested that, perhaps, this had originally been taught as a now-forgotten halacha leMoshe miSinai, a position that Sumchus rejected.

The Mesorah and the Esrog

An observant Jew does not need proof that our mesorah is correct. Nevertheless, we often feel some satisfaction when we discover that a secular source verifies our mesorah. The esrog with which most Ashkenazim are familiar looks quite different, both inside and outside, from the esrogim that the Moroccan and the Yemenite communities use, and the Moroccan and Yemenite esrogim look very different from one another. Several years ago, research teams from the University of Catania, Italy, and the Hebrew University conducted a joint study of twelve varieties of esrog, including the standard Moroccan, Yemenite, Italian, Chazon Ish, and other varieties, to see whether they were indeed consistently one species, or whether the DNA indicated that they were of different species and origins. Their pre-research assumption was that these were unrelated species and that Jews had simply used a native available citrus.

The study concluded that the DNA proves that all twelve varieties are in fact one species — and that they are all genetically separate from all other citrus fruits. To quote the study:[xxxi] “The results obtained are very clear and might be regarded as somewhat surprising. Notwithstanding diverse geographical origin and the considerable morphological variation, especially in fruit size and shape, presence of pulp and persistence of style, all the citron types examined revealed a high degree of similarity. There was no sign of introgression of lemon or other citrus genomes into any of the citrons examined.”[xxxii]

Conclusion

The mesorah is our link to the past and our guidance regarding how to perform our mitzvos. It is very reassuring to realize that the esrog and the other three species we pick up on Sukkos are the same species that the Jews used in the Desert, in the days of Shlomo Hamelech and in the days of Rabbi Akiva. It would be fascinating to watch a video of Jews in those eras holding their arba’ah minim while standing in their sukkos. Since we can’t watch that video, we can only reconstruct the vision in our minds and thank the mesorah that has kept us identified as Jews in so many different places and eras.

 

 

[i] Hirsch Commentary to Shemos 21:2, Haberman translation

[ii] There are several places where the Rambam discusses these ideas, the most extensive of which is in the Introduction to his Commentary to the Mishnah. He also discusses these ideas in Mishneh Torah, Hilchos Mamrim, Chapter 4, and in Sefer Hamitzvos, his second rule.

[iii] Berachos 58a

[iv] Sukkah 35a

[v] Taanis 2b, 3a

[vi] There is also a third opinion, Rabbi Nosson, who has a different scriptural source for this mitzvah.

[vii] Temurah 15b and 16a

[viii] See Kol Kisvei Maharatz Chayes, Volume 1, pg 115

[ix] Shiurim Lezeicher Aba Mari, Volume 1, page 230

[x] Rambam, Hilchos Mamrim 1:4

[xi] Devarim 17:12

[xii] Sefer Hachinuch, Mitzvah 495

[xiii] Eduyos 5:6

[xiv] Yam shel Shlomoh, Bava Kama 4:9, explains the seriousness of this prohibition.

[xv] Eduyos 5:7

[xvi] See Margaliyos Hayam, Sanhedrin 88a, who cites this explanation in the name of the Sanhedri Ketanah, for reasons independent of the Rambam’s position.

[xvii] Sanhedrin 88a

[xviii] Introduction to his Commentary to the Mishnayos.

[xix] Beitzah 2a

[xx] Tosafos, Yoma 79b s.v. Lomar

[xxi] Shemos 22:4

[xxii] Bava Kama 17a

[xxiii] Ibid. 17b

[xxiv] Bava Kama 3b s.v. Bechatzi

[xxv] The analysis that the Rosh, Bava Kama 2:2 applies to the discussion also clearly demonstrates that he understood the Gemara to mean a halacha leMoshe miSinai.

[xxvi] Ibid.

[xxvii] The Gemara actually cites two approaches to explain Sumchus’s position, according to one of which Sumchus accepts the lenient ruling of tzeroros, but disputes when it applies. According to this approach, there would be no problem for the Rambam to accept that tzeroros is a halacha leMoshe miSinai in which two authorities dispute some of its halachic applications. However, the Gemara presents another approach, according to which Sumchus denies the entire halachic principle of tzeroros.

Note also that Rashi, Bava Kama 17b s.v. Sumchus states explicitly that Sumchus disputes the halacha of tzeroros.

[xxviii] Introduction to his Commentary on the She’iltos, 1:2

[xxix] Shu’t Chavos Yair, #192

[xxx] Kol Kisvei Maharatz Chayes, Volume I page 111.

[xxxi] Proceedings of the International Society of Citriculture, December, ’00

[xxxii] We should note that even though genetically all the varieties tested are indeed esrogim, we cannot rely on genetic testing to prove the authenticity of a particular esrog, since, if it was grafted onto non-esrog stock, it would be invalid for use on Sukkos according to most authorities.

What May I Not Write?

“I was told that I should not include quotations from pesukim on my daughter’s wedding invitation. Yet I see that ‘everyone’ does! Could you please explain the halacha?”

“Someone told me that sukkah decorations should not include any pesukim. Is this true? My children bring home decorations like this from school.”

“Does a newspaper containing divrei Torah need to be placed in sheimos?”

To answer these questions, we need to explain several halachic issues, including:

1. The original prohibition against writing Torah she’be’al peh, and the later “heter” to write and publish it.

2. The concern about producing divrei Torah that will not be treated appropriately.

3. What items must be placed in sheimos?

The original prohibition against writing Torah she’be’al peh

Originally, it was prohibited to write down any Torah she’be’al peh (Gittin 60b), except for an individual’s personal notes recorded for one’s own review (Rambam, Introduction to Mishneh Torah; see also Rashi, Shabbos 6b s.v. Megilas). The Oral Torah was not permitted to be taught from a written format. Torah she’be’al peh was meant to be just that – Torah taught completely without any written text. Thus, Moshe Rabbeinu taught us the halachos of the Torah orally, and Klal Yisrael memorized them. Although each student wrote private notes for the sake of review, the Oral Torah was never taught from these notes.

The prohibition against writing Torah she’be’al peh included writing midrashim, prayers and the texts of berachos, as well as translations and commentaries of the Written Torah, since all these are considered Torah she’be’al peh. In those times, all these devarim she’be’kedusha were memorized, and the only parts of the Torah written were the pesukim themselves.

The Gemara (Gittin 60b) records this halacha as follows: “Devarim she’be’al peh, iy atah resha’ie le’omram bichsav,” “You are not permitted to transmit the Oral Torah in writing.” The Ritva (ad loc.) explains that this is because divrei Torah taught verbally are understood more precisely, whereas text learning is often misunderstood.

Another prohibition forbade writing the books of Tanach except when writing a complete sefer (Gittin 60a). Thus, one could not write out Parshas Toldos (or any other parsha) or a few pesukim for learning, although it was permitted to write an entire Chumash such as Sefer Shemos. Similarly, one could not write out part of a sefer of Navi to study or to read the haftarah. In order to recite the haftarahs regularly, every shul needed to own all of the eight Nevi’im (Yehoshua, Shoftim, Shemuel, Melachim, Yeshaya, Yirmiyahu, Yechezkel, and Terei Asar) to read the haftarah from the appropriate sefer. Similarly, a person who wished to study Shiras Devorah or the prayer of Channah had to write the entire Sefer Shoftim or Sefer Shemuel.

Why do we no longer abide by this prohibition?

Chazal realized that it was becoming increasingly difficult for people to learn Torah and to observe certain other mitzvos, such as reading the haftarah. Therefore, they ruled that the prohibition against writing Torah must be superseded by the more vital need of keeping Torah alive among the Jews. This takanah was based on the pasuk, “Eis la’asos laShem heifeiru torasecha,” which is understood to mean “It is the time to act for Hashem since Your Torah is being uprooted,” (Tehillim 119:126). In order to facilitate Torah study, they permitted writing individual verses and teaching Oral Torah from written texts. (We will refer to this takanah, or heter, as “eis la’asos.”)

The first part of the Oral Torah to be formally written for structured teaching was the Mishnah, edited by Rebbe (Rabbi Yehudah HaNasi) at the end of the period of the tanna’im (circa 3960/200 c.e.). To quote the Rambam, “Rebbe gathered all the laws and explanations that had been studied and interpreted by every beis din since the days of Moshe Rabbeinu and organized the Mishnah from them. He (Rebbe) proceeded to teach publicly the scholars of his generation from this text so that the Oral Torah would not be forgotten from the Jewish people. Why did Rebbe change the method that had been used previously? Because he saw that the numbers of Torah students were decreasing, the difficulties facing the Jewish people were on the rise, the Roman Empire was becoming stronger, and the Jews were becoming increasingly scattered. He therefore authored one work that would be in the hands of all the students to make it easier to study and remember the Oral Torah” (Introduction to Mishneh Torah).

We see that Rebbe instituted the first formalized use of a text to teach the Oral Torah because of the new circumstances confronting klal Yisrael. After Rebbe’s days, Chazal gradually permitted writing down other texts, first Aggadah (ethical teachings of the Gemara), later the entire Gemara, and still later the explanations and commentaries on the Gemara.

As a very important aside, we see from the end of the quoted Rambam, “to make it easier to study and remember the Oral Torah,” that even though it is now permitted to write down the Mishnah, it is still important to know the entire Oral Torah by heart.

In the context of the rule of eis la’asos, the Gemara tells us the following story:

Rabbi Yochanan and Reish Lakeish (amora’im in Eretz Yisrael shortly after the time of Rebbe) were studying from a Talmudic anthology of ethical teachings, a “sefer Aggadah.”

The Gemara asks, “How could they study from such a book, since it is prohibited to learn Torah from a written text?” The Gemara replies, “Since it is now impossible (to retain all the knowledge of the Torah without a written text), ‘it is the time to act for Hashem, since Your Torah is being uprooted,’” (Gittin 60a). We see that the Gemara initially assumed that it was still prohibited to study Torah from a written text, except for the study of Mishnah. The Gemara responded that the prohibition had been further relaxed because it had become even more difficult to learn Torah than it had been in the days of Rebbe.

The Gemara relates a similar episode concerning the recital of the haftarah. As mentioned above, it was originally forbidden to write part of a book of Tanach, and therefore, every shul needed to own scrolls of all the Nevi’im in order to read the haftarahs. However, as communities became more scattered, making this increasingly difficult, the Gemara permitted the writing of special haftarah books that contained only the haftarah texts, but not the text of the entire Nevi’im. This, too, was permitted because of eis la’asos (Gittin 60a).

What is permitted because of eis la’asos?

We see that in order to facilitate Torah learning, Chazal permitted the writing of the Oral Torah and parts of the books of the Written Torah. To what extent did they override the original prohibition?

This is a dispute among early poskim, some contending that it is permitted to write only as much as is necessary to prevent Torah from being forgotten. According to this opinion, it is prohibited to write or print even tefillos that include pesukim that are not intended for learning Torah (Rif and Milchemes Hashem, Shabbos Chapter 16). This opinion also prohibits translating Tanach into any language other than the original Aramaic Targum, because proper translations constitute Torah she’be’al peh. In addition, this opinion prohibits the printing of a parsha of Chumash in order to teach Torah, since one could write or print the entire sefer (Rambam, Hilchos Sefer Torah 7:14; Shulchan Aruch, Yoreh Deah 283:2). Other poskim permit the writing of any Torah that one uses to learn. Thus, they permit writing a single parsha in order to teach Torah (Taz 283:1; Shach 283:3) and the translating of Tanach into any language. These poskim rally support to their opinion from the fact that Rav Saadya Gaon wrote sefarim in Arabic, including commentaries on Tanach (Ran, Shabbos Chapter 16).

Both opinions agree that it is prohibited to publish translations of Tanach that will not be used to spread Torah knowledge (Ran, Shabbos Chapter 16).

How does this prohibition affect us?

All of the opinions quoted above prohibit writing disparate parts of the Written Torah and any of the Oral Torah in situations where there is no Torah benefit. For this reason, early poskim note that one may not embroider pesukim or a beracha on a talis, since writing this pasuk does not serve to teach Torah (Rabbeinu Yerucham, quoted by Beis Yosef, and Taz, Yoreh Deah 283:3. It should be noted that the Levush is more lenient, see Shach 283:6.).

Another concern

There is an additional reason why one should not embroider pesukim on a talis. Since the talis could be brought into an unclean place, it is not proper to have a pasuk written on it.

A third concern – causing the words of Torah to be destroyed

To explain this concept, we must first introduce a surprising statement of the Gemara: “Ko’sevei berachos kesorfei Torah,” “Those who write berachos (to enable people to recite them) are considered as if they burnt the Torah” (Shabbos 115b). What does this Gemara mean? We would think that these individuals have performed a tremendous mitzvah, since they have enabled people to recite berachos correctly!

This statement was authored at the time when it was still prohibited to write down the Oral Torah. At that time it was forbidden to teach any halachos in written form, even the correct text of a beracha. Everything had to be taught orally. Therefore, the Gemara states that by writing a beracha, even without the name of Hashem (Shu’t Tashbeitz #2), one is violating the halacha by teaching Torah she’be’al peh in writing.

But why is it considered like “burning the Torah?”

This Gemara introduces a new prohibition. Someone who writes prohibited Torah works is considered culpable afterwards if those divrei Torah become consumed by a fire!

We know that it is prohibited to erase or destroy the name of Hashem (Shabbos 120b), and that this prohibition includes erasing or destroying words of Torah and all other holy writings, including notes of Torah classes, stories of Chazal, sefarim for learning, “benschers,” etc., even if they do not include Hashem’s Name (Shu’t Tashbeitz #2). Therefore, even small benschers, tefillos haderech and similar items published with abbreviated names of Hashem are still considered divrei Torah imbued with kedusha. For the above reason, one must treat these items with proper care and dignity and place them in sheimos when they become unusable.

It is also prohibited to cause an indirect destruction of words of the Torah or to produce divrei Torah that might subsequently be destroyed. This prohibition exists whenever there is insufficient reason to write and publish the divrei Torah. For this reason, the Gemara states that someone who wrote berachos when it was prohibited to do so is held responsible if the words of Torah are subsequently destroyed.

Although nowadays, we are permitted to write and print berachos and siddurim to enable people to recite them properly, it is forbidden to produce these items unnecessarily. It is certainly prohibited to put pesukim, parts of pesukim, or divrei Torah in places where it is likely that they will be treated improperly. Both of these reasons preclude writing pesukim on Sukkah decorations, unless one can assume that they will be properly cared for.

How much of a pasuk is considered to be divrei Torah?

Even three words in a row are considered a pasuk that cannot be written without sufficient reason (see Gittin 6b). However, if the letters are improperly or incompletely formed or spelled, it is permitted (Shu’t Tashbeitz #2).

For this reason, some people print on invitations the following, “Naaleh es Yerushalayim al rosh simchaseinu,” “We will place our memories of Yerushalayim above our celebrations.” This is permitted because it is not a quotation of a pasuk, although it is similar to one (Tehillim 137:5).

There is another solution that may be used: rearranging the words of the pasuk so that they are not in the correct order. When doing this, one must be certain that one does not have three words in the proper order.

I once received an invitation which stated on the cover, Yom zeh asah Hashem nismecha venagila bo, “This day was made by Hashem. We shall rejoice and celebrate on it.” The person who prepared this quotation had done his halachic research. Although very similar to the pasuk, “Zeh hayom asah Hashem nagilah v’nismecha bo” (Tehillim 118:24), the words of the original pasuk were transposed in such a way that there were no longer three consecutive words together!

Some authorities permit printing pesukim if marks are placed between the words or if the words are not in a straight line. They feel that these arrangements of words do not constitute pesukim (cf. Shu’t Tashbeitz #2 who disagrees).

Some producers of “lulav bags” are meticulously careful not to quote three words of the pasuk in order. Thus, they write, “Ulekachtem lachem… kapos temarim…vesimachtem” avoiding writing three consecutive words of a pasuk. This is permitted.

Any written dvar Torah has sanctity and must be treated with appropriate dignity. When it will no longer be used, one must be careful to treat it respectfully, including eventually placing it in sheimos. Reference notes that are incomprehensible on their own are not considered divrei Torah and may be placed in the regular trash (Shu’t Igros Moshe, Yoreh Deah 2:75).

When is something placed in sheimos?

Placing Hashem’s name or words of Torah into sheimos to bury them is considered a tragedy. Putting sefarim in genizah is permitted only when they are worn out and no longer usable.

The Gemara rules that sifrei Torah that are unusable should be placed in earthenware vessels before burial to forestall their destruction as long as possible (Megillah 26b). This teaches us that burying holy things is permitted only after they have become unusable. Other sefarim do not require being placed in earthenware before burial. It is sufficient to place them in a protective wrapping before burying them.

Quoting pesukim as a writing style

The Ramban and other authors sometimes use the words of pesukim or Chazal out of the original context, as part of their poetic style. If someone wrote a letter using a pasuk this way, must it be treated with appropriate respect like holy writings?

This question is disputed by the early authorities. The Shulchan Aruch rules that such correspondence is not considered divrei Torah, whereas the Shach rules that it is (Yoreh Deah 284:2).

The writer’s intent

Some authorities contend that if a printer or writer did not intend to make sefarim or divrei kedusha, then the item produced does not have kedusha (Shu’t Ein Yitzchak 5:7; Shu’t Masas Binyamin #100; Magen Avraham 334:24). On this basis, Rav Moshe ruled that if the name of Hashem was printed in a secular newspaper, the name has no kedusha at all. However, Rav Moshe ruled that it is preferable to cut the name out of the paper and place it in sheimos (Shu’t Igros Moshe, Yoreh Deah 1:172). Similarly, Rav Elyashiv ruled that one is not required to put a newspaper containing divrei Torah into sheimos. However, one should still not treat the dvar Torah with disrespect, such as by putting it directly into the trash (quoted in Ginzei Hakodesh pg. 236). This is based on the assumption that it should not be treated with less dignity than worn-out tzitzis (see Mishnah Berurah 21:7). Rav Vozner rules that one may place the newspaper inside a bag and place it in the garbage. However, he contends that a regular Torah column or Torah section should be placed in sheimos (quoted in Ginzei Hakodesh pg. 253). Apparently, he feels that when there is a regular column or section, the printer knows that he is producing divrei Torah and not just a newspaper.

Others are less strict, requiring only that the paper be wrapped up before being discarded. Others rule that any divrei Torah printed in a newspaper should be placed in sheimos (quoted in Ginzei Hakodesh pg. 154). I’ll allow each reader to ask his own halachic authority what to do.

Invitations

Perhaps people who print pesukim on invitations rely on the fact that this is considered mere poetic writing style or that the printer has no intent to produce divrei kedusha. However, contemporary authorities prohibit this practice, since the invitations end up being treated with lack of dignity, which is worse than being destroyed. In Sivan 5750/June ’90 an open letter signed by the poskei hador warned that advertisements, invitations, receipts, signs, and raffle tickets should not include pesukim or parts of pesukim, except when the pasuk is written as part of literary style, with no connection to its context.

We live in an age of proliferation of written material. Many pamphlets have the positive value of spreading Torah. We must be careful to show our honor to Hashem by treating pesukim and divrei Torah with proper respect. May we always merit to demonstrate Hashem’s honor in the appropriate way!