Beitzah 5

Vestigial laws.

When I first got to college in Massachusetts in the late ’90’s, I learned that alcohol was never sold in the state on Sundays. This rule was a kind of vestigial law left over from some combination of the state’s puritanical roots and the fervor of the Prohibition Era — and it no longer made cultural sense for most of the population. But the rule nevertheless remained on the books. 

Today’s daf includes two examples of outdated laws, asking: If they’re obviously outdated, is it OK to just ignore them?

Example 1: Three days before the fantastic moment of revelation at Sinai, God prohibited Israelite men from going near women (so they would not defile themselves through sexual intercourse or seminal emissions). The idea was to approach this encounter with God in a state of absolutely purity. After the moment of revelation, it would have been reasonable to assume that this prohibition had expired. However, on our page, Rav Yosef insists that assuming is not enough — a prohibition needs to be explicitly revoked. He finds textual evidence to back this claim:

Rav Yosef said: From where do I say my opinion? As it is written (after the Jews received the Torah): Go, say to them: Return to your tents. (Deuteronomy 5:26)

Rav Yosef understands “return to your tents” as permission for the Israelites to return to their wives (whom, incidentally, the rabbis sometimes refer to using the Hebrew word for house). From this, Rav Yosef understands that Torah law, however outdated it seems, is only nullified if explicitly reversed by God.

Example 2: The rabbinic laws of ma’aser sheni, the second tithe, required that someone who has produce take a portion of it to Jerusalem and eat it there, in a state of purity. According to the rabbis, who developed the different tithing laws from a number of scattered biblical statements on the subject, this law applied to anyone who lived within a day’s walk of Jerusalem — those who lived farther were allowed to sell the tithed produce, bring the money to Jerusalem and use it to purchase something to eat while there.

The rabbis also understood that ma’aser sheni was eaten only in the presence of the Temple (as a discussion on Terumah 21a makes clear). According to Rabbi Eliezer, however, the destruction of the Temple does not allow us to automatically presume this law is obsolete. However, his students then informed him:

His students said to him: Rabbi, there is no need to do so, as your colleagues have already voted for you and permitted it.

In this case, Rabbi Eliezer erred on the side of caution and only considered the law defunct when he learned that it was explicitly erased from the books by a rabbinic court.

Both of these examples make the claim that prohibitions like these must be explicitly reversed. As the Gemara summarizes: 

Conclude from this that any matter established by a vote requires another vote to permit it.

Laws can change — but that must happen with intention and proper process, no matter how antiquated they seem.

The Gemara now wonders: Why are we given two examples of laws that needed to be changed and not just one, which would have apparently been sufficient? What more do we learn by having two different examples shown to us? The Gemara shows that the first example applies to matters of Torah law, which are reversed by God, and the second teaches that the same principle applies in rabbinic law, which can be reversed by rabbis.

In 2004, Massachusetts officially voted to allow alcohol to be sold on Sundays. Times do change.

Read all of Beitzah 5 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 5th, 2021. If you are interested in receiving the newsletter, sign up here.

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