Customs

Pesachim (4:1) | Yaron Gottlieb | 19 years ago

The fourth chapter of Pesachim contains a series of Mishnayot that deal with a number of localised customs that existed in different communities. This leads to the question of what is the status of customs in Halacha.

The first problem that is encountered when trying to deal with this question is understanding the terminology. In the language of Chazal the term minhag is used for a practice that has been adopted in all communities around the world and consequently has the status comparable to any other law from the Torah. There are also customs that are based on local traditions (such as the cases in our Mishnayot) and others that depend on localised preferences that have minimal Halachic ramifications, such as what vegetable is used for karpas on Pesach. There is a need to determine the significance of the customs that appears in the Mishnah.

The classic example of a custom that has become accepted by all Jews is saying Hallel on Rosh Chodesh. The Gemara in Ta’anit (28b) states that it is not permitted to say a full Hallel for the new month and it appears in certain parts of the Jewish world that the prevailing custom was that no Hallel was said at all. However since then it has become universally accepted that a “half” Hallel is said for the new month. The dispute in the Shulchan Aruch is with regards to whether or not one should recite a blessing. Should someone today decide that it is not necessary to say Hallel at all it would seem that he would transgress a rabbinical obligation.

More significantly the Sha’ar Tzion (422:13) mentions that when women take the lulav they should make a bracha even though they are not obligated in performing the mitzvah. This is despite the fact that their taking the lulav has not been universally accepted, thus demonstrating the power of customs that contain enough halachic significance to avoid the problems of an unnecessary blessing.

These issues however only demonstrate the binding strength of the positive precept. The opposite side is seen with second day of Yom Tov which has been accepted universally. The Shulchan Aruch states that it is as binding as the first day of Yom Tov, although it does have some differences in the punishments due to its having a non-biblical status.

From the above sources we may be able to infer that the customs spoken of in Pesachim are as binding in Halacha as any other statement of Chazal. In fact this is the case as brought down in both the Shulchan Aruch and the Rambam that the customs mentioned are absolutely binding, even though they are purely local in their status. Someone’s custom would not move with him if he relocates, rather the custom would be focused on the location of the community.

The ways that these customs relate to Halacha is brought in the Rambam in his introduction to the Yad Chazakah where he states that originally customs were centrally controlled and were therefore universal, but since the decentralisation of Halacha, customs have become far more localised, until the time when the authority can once again become centralised under the Sanhedrin. Based on this the localised customs of today are just as binding as the global customs of the Gemara. The Rambam takes this idea one step further in the first chapter of Hilchot Mamrim where he states that anyone who ignores one of the customs ignores the positive commandment of על פי התורה אשר יורוך. Even though there are many authorities that dispute making rabbinic customs into a biblical commandment, the binding nature of the traditions on the local communities is still accepted.

Daniel Shfarber in his book Minhagei Yisrael quotes from Otzar Ge’onim that the very fact that the customs have become standard in a number of communities proves their significance in a halachic sense, and makes them binding upon us. Although some traditions do not stretch back to the time of Moshe at Har Sinai, the authorities consider them significant. Nonetheless the nature of customs has changed from being location-based to the family-traditions regardless of their current location.

Download