Klalei HaPoskim

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Overview

In order to be privy to the nuances and mindsets of the Poskim, it is advantageous to understand the Klalim relevant to the Poskim, from the two Talmuds through the Rishonim to the Shulchan Aruch. The Machon Yerushalayim edition of the Yad Malachi is particularly helpful for this, as the Yad Malachi is fantastic for collecting all the ideas mentioned throughout Halachic literature and the Matnat Yado footnotes add many additional sources from those who came before and after him, as well as direct quotations of sources.

A number of these Klalim, such as Stam vaYesh and Yesh veYesh have much import in understanding many of the Rishonim, though the idea is only written out under the heading of one of them.

Klalei HaRishonim

Klalei HaAcharonim

Safrut Chazal: Talmud Bavli and Yerushalmi, Tosefta, Midrashim, and Zohar

Bavli

  1. Regarding intra-Talmudic Halachic decision making (Klalei HaShas), see Klalei HaTalmud (Talmudic Methodology).
  2. "Sugya veDuchteh Adifah" - The Amoraim focused most on the precise presentation of the Halacha when discussing it in its proper context. When discussing tangential points, the they were not as careful to speak with complete precision satisfactory for inferring the Halacha from.[1]

Differences Between the Yerushalmi and Bavli

  1. Since the Talmud Bavli was written after the Talmud Yerushalmi, its codifiers were able to filter out the points they didn't think were accepted. As such, when the two contradict, we follow the Talmud Bavli, and some say we should never even be concerned for the Yerushalmi's statements altogether for this reason.[2]
  2. The Halacha follows the Bavli over the Yerushalmi wherever they disagree, but, if the Yerushalmi discusses a Halacha not mentioned in the Bavli, the Halacha follows the Yerushalmi. If it's a distinction not mentioned in the Bavli, then there's a strong argument to say the Bavli's omission is an indication of disagreement.[3]
  3. The Rosh[4] writes how we only follow the Bavli over the Yerushalmi with respect to Halachot, such as Tuma veTaharah, Issur veHetter, Chiyuv and Pettur, but not things that are Tzorech Hashaah and have no ramifications on Dinei HaTorah. Those are subjective to the time, place, and needs of the people. Similarly, the Rashbesh [5] says that with respect to Minhagim, we would follow the Yerushalmi.[6]
  4. If two approaches are offered in the Bavli and only one of them appears in the Yerushalmi, the Halacha follows that approach.[7]
  5. The Rishonim observe that the Yerushalmi in our possession is corrupt and enigmatic. At most, one person in a generation can crack its meaning.[8] If a Baraita is quoted slightly differently in the Bavli from the way it's quoted in the Yerushalmi, the Ohr HaChaim claims one can accept the Yerushalmi's version and label the Baraita in the Bavli as Meshabeshta (corrupt). The Yad Malachi takes issue with this approach, in light of the general issue of textual obstacles in reading the Yerushalmi and the Tashbetz's claim that said even the girsa of the Yerushalmi is unreliable, not just the Halachot.[9]
  6. Given a Machaloket in the Bavli and a "Maaseh Rav" (anecdote about a Talmudic figure) in the Yerushalmi that takes a side, the Halacha follows the side expressed by the Maaseh Rav in the Yerushalmi.[10]
  7. The Poskim often try to harmonize the Bavli and Yerushalmi as much as possible.[11]
  8. Sometimes, when referring to topics in different locations, the Yerushalmi mixes up "here" and "there," because the topic appears more than once and the same text was copied/repeated completely from one location to the other without adjustment.[12]

Differences Between Other Sefarim

  1. When the Talmud and Zohar contradict, the Radbaz[13] is well known for positing that one should follow the Talmud and Poskim.[14]
  2. When faced with a contradiction between the Yerushalmi and the Tosefta, the Rambam generally sides with the Yerushalmi. The Kessef Mishneh (Hilchot Maaser Sheni 1:10) explains that the authenticity of our set of Toseftas is questionable: they may not be the same Toseftas compiled by Rav Chiya and Rav Oshiya.[15] The Peri Chadash[16] adds that it's based on the Yerushalmi's later date of redaction. The Radbaz thinks the Rif takes the side of the Tosefta in such instances, while the Sdei Chemed and Korban Netanel[17] think not so.[18]
  3. As we would follow the Yerushalmi against the silence of the Bavli, if there is a contradiction between a Midrash Rabbah and Yerushalmi, the Halacha follows the Yerushalmi over the Midrash.[19]

Sefarim HaChitzonim (Masechet Semachot, Sofrim, and others)

  1. Tosafot in a number of places writes how with respect to some Halachot, they follow Sefarim Chitzonim, such as Masechet Semachot and Masechet Sofrim, which were compiled later on, against the Talmud. They're called Chitzonim, according to the Bach[20] because they are external to the Gemara, or, according to the Chidah, because they're even further removed from the Baraitot, which are already "outside," as their name suggests.[21] Some say the Girsaot are also enigmatic.[22]

Sefer Mitzvot Gadol (Semag / Samag)

  1. When quoting the Gemara, the Samag will often paraphrase to make the language flow more quickly.[23]
  2. The Samag draws heavily from the Rambam for the most part[24] and entirely from his teacher, the Sefer HaTerumah, whose Maftechot he copied letter for letter.[25] When in agreement with the Rambam, he writes so implicitly, and he only disagrees when out-rightly quoting the Rambam by name.[26]
  3. At the same time, most of his words are based on the Tosafot Shanz, and, for some reason, he does not seem to have seen the Tosafot Tuch.[27]
  4. The Bach says the Samag's way is to rule like the Ri Baal HaTosafot.[28]
  5. There's a debate if the Samag saw the Rambam's Sefer HaMitzvot or parts of it.[29]

Rashi

Fundamentals

  1. Rashi, colloquially known as "Kuntress,"[30] always takes the simplest Peshat of the Gemara, even if it's not in line with the accepted Halacha - even a Hava Amina rejected by the Gemara itself later on![31]
  2. Along the same lines and by no means in disparagement of Rashi, the Radbaz alerts us that Rashi is primarily a Mefaresh, not a Posek,[32] so much so that he doesn't even register as a Shitah when deciding a Machloket between Rishonim, such as the Rosh and Rambam.[33], though some disagree.[34][35]
  3. In his inimitable and calculated pithiness, Rashi negates numerous difficulties with the understanding of the Gemara with just a few words. This is very much part of Rashi's claim to fame.[36]
  4. Rashi made multiple editions of his commentaries, which accounts for the apparent contradictions.[37]
  5. One cannot pose the tradition of the Geonim as a question on Rashi - "Gavra Agavra KaRamit?!"[38]
  6. Whenever Rashi uses the words כלומר he is offering that particular interpretation where one would have been able to offer an alternative one.[39]
  7. When Tosafot attacks Rashi with a series of difficulties from later Masechtot, one could argue Rashi assumes the Gemara at this point isn't working with them in mind.[40]

Works Not by Rashi

  1. The commentary on Divrei HaYamim is not by Rashi.[41]
  2. The commentaries on the side of the Gemara where Rashi should be on Masechtot Meilah, Nazir, and Nedarim, are not by Rashi.[42]
  3. There is a debate among Acharonim if the commentary of Rashi on Masechet Ta'anit is authentic or not; it seems that many Acharonim assume that it indeed is by Rashi.[43]
  4. The commentary Rashi on the Rif was compiled by a later student based heavily on Rashi.[44]

Tosafot

Jargon

  1. Beyond the surface level understanding of their words, the Rishonim imbued layers of implicit teachings in their words. There is often what to learn from inference, in addition to the basic understanding.[45]
  2. Sometimes Tosafot will argue "Ein Lehakshot" - not to pose a question - but not provide the reasoning, thereby leaving it to the reader to derive the answer or they find it in a parallel Tosafot.[46]
  3. Even though Tosafot often poses a question with "Im Tomar" and answers it with "Yesh Lomar," there are instances where the question will be asked in the formal manner but left unanswered.[47]
  4. If the primary answer presented to Tosafot's question suffers from a difficulty, an alternative answer will often be offered, prefaced by "הבה מצי לשנויי" or "הבה מצי לתרץ", that isn't subject to the other answers difficulty. This alternative answer, however, is not accepted, as it itself is vulnerable to a much greater challenge, which only the primary answer is safe from. In other words, if the main answer isn't perfect, another, weaker answer that resolves the difficulty with that answer will be suggested but not accepted, because it's subject to much stronger questions.[48]
  5. In instances where two answers are offered without quoting one of the Baalei HaTosafot by name, the second answer will only be prefaced with "ועוד" if it doesn't directly contradict the previous one. If the first answer is by a named Baal HaTosafot, though, then the word "ועוד" would be appropriate regardless of the answer, to indicate that this answer is also from the aforementioned Baal HaTosafot.[49]
  6. In terms of deciding which of two answers to follow, the Sheyarei Kenesset HaGedolah[50] claims the first answer is ikar; the Chazon Nachum disagrees.[51]
  7. Sometimes Tosafot will pose a question with "Teimah" and leave it unanswered but not also "VeTzarich Iyun," because the answer was obvious.[52]

Authorship

  1. It is not uncommon to discover contradictions between comments of Tosafot across different Masechtot. For example, in one place, Tosafot will leave a question unresolved, while, in another place, it will be answered, and stil, in another location, a different answer will be presented and the other one rejected. Each side of that contradiction is in fact representing the opinion of a different Baal HaTosafot.[53] Similarly, when two Poskim each associate a different understanding with Tosafot, one could explain that they're referring to different Baalei HaTosafot.[54]
  2. Even within a Masechet, sometimes there are missing comments of Tosafot or comments of other Baalei HaTosafot mixed in, the latter of which leads to contradictions within one set of Tosafot comments.[55] Regardless, we try to reconcile the differences as much as possible.[56]
  3. The Maharshal has a well known illustration of how Rabbeinu Tam had around eighty students of incredible caliber.[57]
  4. The Tosafot commentary on most of the Masechtot studied originates with the Tosafot compiled by the Rash MiShantz, a compilation known as the Tosafot Shantz. However, our version was abridged by R' Elazar Tukh, whose redaction is known as the Tosafot Tukh and whose goal was to elucidate the give and take of the Gemara, not decide Halacha. Nevertheless, we follow the Tosafot Tukh over the Tosafot Shantz, because the Tosafot Tukh came later.[58]. In fact, some say that we should follow the Tosafot on the more major masechtot, such as Yevamot, over the Tosafot on smaller Masechtot, because the former are from the Tosafot Tukh.[59]
  5. The Tosafot commentary to Yoma comes from the Maharam Rutenberg.[60]
  6. There is a debate if Tosafot and Rabbeinu Tam are considered two separate entities or not with respect to Kim Li and other Halachic calculations.[61]

Misc.

  1. Chochmei HaTzarfatim according to many refers to Baalei HaTosafot, although some are unsure.[62]

Rosh

General Style

  1. The Piskei Rosh are essentially summaries of the Tosafot on the Daf, so each can be used to complement the other in terms of understanding and drive. Where Tosafot is vague and the Rosh is clear or vice versa, one can rely on the clearer explanation to be a worthy interpretation of the vague one's words. Often times, the Rosh does not deviate from their position.[63]
  2. The Rosh primarily focuses on Sevarot accepted leHalacha and ignores those that are not. According to the Kenesset HaGedolah, if he presents two positions without deciding, it's because he's unsure which should be accepted.[64] Sometimes, he'll present two interpretations, because he thinks they're both true.[65] As such, his position will be vague, so we can logically infer he follows the majority of Poskim. Additionally, his son, the Tur, has the credibility to tell us what his father's position was in practice.[66]
  3. The Rosh mainly is drawn after the Rif except perhaps by explanations of Mishnayot, in which case he often prefers the Rash's understanding.[67]
  4. The Rambam's understanding of Im Timtzi Lomar as Halacha is not accepted by the Rosh, who posits that even those who accept it must admit that further levels are only accepted if they are consistent with the positions of the previous ones.[68] Bach argues that Rosh will agree that when presented with four questions, two of which are Im Timtzi Lomar, that their standing out indicates the Gemara is following them.[69]
  5. An additional answer or through will be introduced with merely a "Vav," such as "וקמשמע לן" - and we also learn.[70]
  6. If an elucidation of the Gemara is not presented by the Rosh against Rashi, we assume he agrees with Rashi.[71]
  7. The breakup of Shu"t HaRosh into Klalim was done by later individuals, not the Rosh.[72]

Contradictions

  1. Just as Ein Seder LaMishnah in the days of Tannaim, meaning they didn't compile Shas in the order it now exists in, so, too, Rishonim didn't necessarily learn and write on Shas in order. It's therefore possible for an initial position to be written in a commentary to a later Masechet and the retracted corrected one to be presented in an earlier Masechet. This knowledge allows us to resolve difficulties in the Rosh and other Rishonim.[73]
  2. Given two contradictory statements in the Piskei HaRosh, some Poskim recommend following the one that fits with the Rif, but according to the Shach, if one is just an instance of parroting the Rif and the other is the Rosh speaking for himself, the latter should be followed.[74]
  3. To resolve contradictions between the Piskei HaRosh and Shu"t HaRosh, the Tur[75] and his brother Rabbeinu Yehudah ben HaRosh[76] say and the Bach[77] postulates that the Piskei HaRosh were written later, so they should be followed over the Teshuvot. The Beit Yosef[78] disagrees.[79] The Maharil[80] argues the Teshuvot should be followed, because they were formulated in the context of Horaah.[81] The Kenesset HaGedolah writes how even according to the former view, if the conflicting Teshuva is based on additional, seemingly seen afterwards, sources, then we would follow the Teshuvah.[82] Rav Yosef Yedid HaLevi adds that these rules are only applicable when it's an explicit contradiction, if not we rather reconcile the two.[83]

Acceptance

  1. Many testify to the grand acceptance of the Rosh throughout Spain, which the Kenesset HaGedolah argues is true even over the Rambam and Riaz. Meanwhile, the Radbaz recommends to at least follow the Rosh whenever the Rambam is unclear. He adds that the Halacha follows the Rosh against the Rashba, as the former came later.[84]

Misc.

  1. Uncharacteristically, the Rosh on Bava Kamma does not quote all the Gemaras and Piskei Dinim, but, rather, quotes the Gemara concisely when needed to discuss a novel idea.[85]
  2. Sometimes, the Hagahot Ashri on the Rosh is commenting on the Gemara itself, not the Rosh, and may even be disagreeing with him.[86]

Tur

General Approach

  1. Like his father the Rosh, the Tur only discusses matters that are relevant to Halacha.[87] Moreover, only cases mentioned or hinted to in the Talmud are discussed in the Tur.[88] Of the topics discussed, he writes the spectrum of positions that arise in the Talmud, Geonin, and Poskim.[89]
  2. Halachot whose source Gemarot have unresolved textual variants (Safek Girsaot) are omitted by the Tur.[90]

Writing Style

  1. Some say that if the Tur omits a Halacha from its appropriate context, one cannot infer that he still accepts it based on a Halacha written in a different context of the Tur, because this is its proper place. For example, if a certain Halacha about lighting Shabbat candles doesn't appear in the Siman about candlelighting, one cannot infer it based on a Halacha in a different, unrelated Siman. Others disagree.[91] At the same time, some say the Tur will directly quote the Rambam or a different Rishon's articulation of a ruling, though he himself does not completely subscribe to the ruling and all its details, because he's relying on having written his own view in a different location.[92]
  2. At the same time, the Tur will outline a debate between the Rosh and other Rishonim in one Siman and then assume like the Rosh's position on the issue in other Simanim without mentioning the other opinion.[93]
  3. When writing how a Rishon concurs with a statement, the Tur will use the language "Al Derech Zeh Katav HaRambam" to means that it's not exactly the Rishon's Shitah, but similar - i.e. there are some differences. "Ken Katav HaRambam" is an indication the Rishon entertains the same position.[94]
  4. The Tur himself concurs with a previously stated ruling when he writes "Nireh Li" to introduce the next idea, while the language "Li Nireh" introduces his own dissenting opinion.[95]
  5. Sometimes, a ruling will be written in the name of the Rambam, even though it's explicit in the Gemara, because the Rif and Rosh omitted it.[96]
  6. When the Tur or another Posek responds to a statement he quotes with "I don't know why" (איני יודע למה), it is not a sufficient indication of his disagreement.[97]
  7. The Tur will point out how the Rosh is unlike the Rambam but not the Rif.[98]
  8. Poskim of the same position are grouped together. The entire group of one position is outlined first, and then the next group.[99]

Stam vaYesh and Yesh veYesh

  1. In line with the general rule, know colloquially as "Yesh veYesh Halacha KeYesh Batra," the Acharonim write how one should follow the last of a series of positions presented by the Tur. The Yad Malachi[100] adds how this is also written regarding the Rif, the Tur's understanding of the Rosh, and the Samag, but he notes how the Beit Yosef takes contradictory approaches to this with respect to the Rosh. In the Tur, this is true when it's "Yesh Omrim... veYesh Omrim..." or "So and so says this, and so and so says that;" however, If it's a case of "Stam vaYesh, then the Halacha follows the Stam[101]
  2. The rule is most compelling when the two positions are not listed in chronological order.[102]. Some say this is true even regarding Shulchan Aruch.[103]
  3. If the verbiage is of the formulation "LeDaat Ploni Assur u'leDaat Ploni Muttar," this rule does not apply.[104]
  4. Independently of the "Yesh veYesh" rule, if the Tur writes "Aval" to introduce an additional position, it's an indication that this is the opinion he accepts.[105]. However, if he elucidates the reasoning of the first opinion before introducing the second, there's firm reason to believe he leans towards the first one as primary. This Klal also has import in understanding the position of the Beit Yosef when he records debates among the Rishonim.[106]

When Quoting Baalei HaTosafot and Rosh

  1. If the position of the Rashba quoted by the Tur contradicts what the Rashba himself writes in his Sefarim, the former is actually the Rash MiShantz, not Rav Shlomo Ben Aderet.[107]
  2. When the Tur writes "My father decided this way" based on proofs, then the idea has import to other topics, as well, while "This is my father's conclusion" does not.[108]
  3. The Tur always follows his father's view when he writes "And my master, my father wrote this way, as well" (כן כתב אדוני אבי הרא"ש). As above, in general, he follows the last position presented in a series of opinions, unless the first opinion was written anonymously. This is in line with the common rules of "Yesh veYesh" always following the last one and "Stam vaYesh Halacha KeStam."[109]
  4. The Tur will attribute the unsourced statement of the Rosh to one of the Baalei HaTosafot, such as the Ri.[110]
  5. Ri (ר"י) without a Heh refers to R' Yitzchak Baal HaTosafot, and HaRi (הר"י) with a Heh refers to Rabbeinu Yonah.[111]
  6. "Ken Daat Adoni Avi" (כן דעת אדוני אבי) means the idea is not explicit in the Rosh; "Ken Katav Adoni Avi" (כן כתב אדוני אבי) does. Similarly, "Lo Katav Adoni Avi HaRosh Ken" (לא כתב אדוני אבי הרא"ש כן) means that it's not understood from the Rosh.[112]
  7. There is a fleet of Acharonim who assert the Tur does not disagree with his father without doing so explicitly; therefore, we always work hard to reconcile any inconsistencies.[113]
  8. Even if there are those who disagree with the Rosh, the Tur will not necessarily quote them to contrast.[114]
  9. Rosh's position is usually quoted last, not first, to indicate this is the position the Tur accepts.[115]
  10. Although the Rosh might agree with the position of the Baalei HaTosafot, the Tur will suffice with quoting the position in name of Tosafot and not mention the Rosh's agreement.[116]
  11. Wherever the Tur writes "And my father the Rosh would say..." (ואדוני אבי הרא"ש ז"ל היה אומר), the Beit Yosef often points out how it was an oral communication between father and son, not a written ruling. [117]

Kitzur Piskei HaRosh

  1. The Kitzur Piskei HaRosh were written by the Tur. When they contradict the Tur itself, the latter should be followed, as it was written later.[118]
  2. In Kitzur Piskei HaRosh, the Tur writes no more than the explicit point of the Rosh.[119]

Misc.

  1. When referring to the Rambam, the Tur is exclusively referring to Mishneh Torah, as Perush HaMishnah was not available to him. [120]
  2. The Tur only had Torat HaBayit HaKatzar, not Aruch.[121]
  3. The Rosh Yosef[122] thought the Rav Amram mentioned in the Tur is not the same as Rav Amram Gaon, but the Chidah[123] argues they indeed are the same person.

Maggid Mishneh

  1. The Kenesset HaGedolah writes that wherever the Maggid Mishneh says he couldn't find a proof for the Rambam, he doesn't agree. [124] Some even say if he doesn't provide a proof, even without articulating that lack of finding, it's an indication of disagreement.[125]
  2. A contemporary of the Rivash[126], the Maggid Mishneh's allegiance to the Rashba[127] is indicative through his throrough familiarity with the Rashba's opinions. Therefore, when in doubt as to how to understand the Rashba's opinion, the Maggid Mishneh's understanding is a valuable and acceptable window to determining what the Rashba means.[128] Some say the opposite is therefore a valuable tool of understanding the Maggid Mishneh, as well.[129]
  3. His tremendous dedication to elucidating the Rambam gives the Maggid Mishneh credence in deciding what the true explanation is when the Rambam's position is debatable, according to the Radbaz.[130]
  4. The Rivash posits that when the Maggid Mishneh refers to the Rambam as "HaMechaber" and not "Rabbenu," it indicates lack of satisfaction with the Rambam's position on his part,[131] but the Chidah argues that the verbiage is arbitrary.[132]
  5. The first three Perakim of Maggid Mishneh on Hilchot Gerushin (until Halacha 9) were not extant even in the times of the Maggid Mishneh himself; what we have printed was probably written by a student, not the Maggid Mishneh himself.[133]
  6. Maggid Mishneh doesn't usually refer to Perush HaMishnayot.[134]

Migdal Oz

  1. Many Acharonim, including the Maharshal, Radbaz, and Shach, have disparaging things to say about the Migal Oz, but the Yad Malachi minimizes the context of their complains to his responses to the Raavad's challenges to the Rambam. Indeed, the Koreh HaDorot praises the Migdal Oz, R' Shem Tov,[135] for his great erudition and familiarity with Nigleh and Nistar.[136]

Ramban

  1. Ramban first wrote his disagreements on the Sefer HaMitzvot and then his Sefer.[137]

Rashba

  1. The Rashba had editions of Tosafot other than the one printed on the page of our Gemaras.[138]
  2. In Avodat HaKodesh, the Rashba writes "יראה לי" when referring to Halachot from the Yerushalmi, Tosefta, and anything else not mentioned in Talmud Bavli.[139]
  3. The Mishmeret HaBayit was written by the Rashba,[140] but it wasn't in print at the times of the Beit Yosef, Rama, and Maharshal for them to see it.[141]
  4. The Baalei HaTosafot and Rashba share a similar approach, therefore, if the Rashba copies Tosafot, it's a sign of agreement.[142]
  5. The extent Shu"t HaRasha are a condensed version of the original.[143]
  6. Maharashdam relates often how his rebbe, Maharitatz would weigh the Rashba's position on a matter equal to the majority of Poskim.[144] Similar statements are made by Rav Yosef Karo and the Radbaz.[145]

Ritva

The Ritva's primary teacher was the Ra'ah, but he studied under the Rashba, as well.[146]

Ran

Style

  1. For the most part, the Ran and the Rosh's words are the same, especially when elucidating Tosafot's position.[147]

Contradictions

  1. The Ran wrote his Chiddushim on Shas when he was younger and his commentary on the Rif when he was older[148], so it's possible that he came to a deeper understanding of a topic and changed his mind the second time around. Therefore, one should follow the commentary on the Rif if it contradicts the Chiddushim. The Yad Malachi extends this to the Teshuvot, as well.[149]
  2. In terms of internal contradictions, the Ran's style in his commentary on the Rif is to copy sections of Rashi anonymously but write an alternative approach elsewhere. He won't necessarily explicate the fact that he disagrees when quoting Rashi.[150]

Works Not by the Ran

  1. Despite some Acharonim referring to the commentary on the side of the Rif on Masechtot Bava Kamma, Bava Metzia, Bava Batra, Makkot, and Moed Kattan as the Ran, they are in fact the Nimukei Yosef.[151]

Further Reading

  • Koreh HaDorot, Ahavat Shalom edition with footnotes of the Chida
  • Kenesset HaGedolah, Klalei HaPoskim
  • Yad Malachi, especially the Machon Yerushalayim annotated edition
  • Yair Ozen / Ein Zocher, by the Chida
  • Shem HaGedolim, by the Chida
  • Kol HaChaim, by Rav Chaim Palagi
  • Sdei Chemed, Klalei HaPoskim (in some editions, vol. 6, page 55, and vol. 9, page 125 in others)
  • Ein Yitzchak vol. 1, by Rav Yitzchak Yosef

Sources

  1. Yad Malachi (Klalei Shnei HaTalmudim 13)
  2. Yad Malachi (Klalei Shnei HaTalmudim 1). See Maharatz Chayut Taanit 16a, Darkei Horaah vol. 2, Imrei Binah Siman 2 in the Hagah, Pachad Yitzchak "Gemara Bavlit"
  3. Yad Malachi (Klalei Shnei HaTalmudim 4). The Beit Yosef's position on this matter needs further elaboration.
  4. Shu"t HaRosh 4:10
  5. Shu"t HaRashbesh Siman 251
  6. Yad Malachi (Klalei Shnei HaTalmudim 5)
  7. Yad Malachi (Klalei Shnei HaTalmudim 8)
  8. Yad Malachi (Klalei Shnei HaTalmudim 6)
  9. Yad Malachi (Klalei Shnei HaTalmudim 7). See footnote 35 who writes that the Ohr HaChaim meant his statement only when there's no discussion of the Baraita in the Bavli. See Maharatz Chayut in Tiferet LeMoshe Chapter 3 and Sukkah 41b.
  10. Yad Malachi (Klalei Shnei HaTalmudim 9)
  11. Yad Malachi (Klalei Shnei HaTalmudim 10)
  12. Yad Malachi (Klalei Shnei HaTalmudim 11)
  13. Shu"t HaRadbaz Siman 1111
  14. Yad Malachi (Klalei Shnei HaTalmudim 1), See Kenesset HaGedolah (Klalei HaPoskim 1), see Radbaz (Siman 1151), Chacham Tzvi vol. 1 Siman 36, Magen Avraham 25:20, Shaarei Teshuvah Orach Chaim 25:14, Shulchan Aruch HaRav Orach Chaim 25:28, Kaf HaChaim (Orach Chaim 25:75), Sdei Chemed (Klalei HaPoskim 2:12), Shu"t Afarseka deAnya 2:101, Keter Rosh at the end Siman 15, Mishnah Berurah 3:11, Yabia Omer (vol. 2 Orach Chaim 25:12), Tzitz Eliezer (vol. 21 Siman 5), Gevurat HaAri (R' Yaakov Hillel), Kuntress Yirat HaHoraah by Rav Reuven Yissachar Nissan (page 95, printed in the back of the new Mekavtziel of the Ben Ish Chai)
  15. For more on the authenticity of our Toseftas, see Kessef Mishneh (Hilchot Teshuvah 4:1), Berit Olam on Sefer Chassidim Siman 19, Mishnat Rabbi Yaakov (Introduction to the Tosefta, 7:3, page 20), and Klalei HaGemara (Sha'ar 1 Perek 1 Ot 2).
  16. Pri Chadash Orach Chaim Siman 450
  17. Korban Netanel (Klalim 18)
  18. Yad Malachi (Klalei Shnei HaTalmudim 3)
  19. Yad Malachi (Klalei Shnei HaTalmudim 14)
  20. Bach Yoreh De'ah 178:2
  21. Shem HaGedolim vol. 2 "Sefarim HaChitzonim"
  22. There's a debate if the Gemara quoting Baraitot that appear in Masechet Sofrim means the Gemara is quoting from Masechet Soferim or the other way around. Some say these Sefarim have no actual derashot, just asmachtot. Yad Malachi (Klalei Shnei HaTalmudim 12) See Matnat Yado ad loc at length. See Ein Zocher (Samech 31), Birkei Yosef (Orach Chaim 581:7), Shem HaGedolim vol. 2 "Soferim," Sdei Chemed Klalei HaPoskim 2:3.
  23. Yad Malachi (Klalei HaRambam Ra'avad veSamag 52)
  24. Yad Malachi (Klalei HaRambam Ra'avad veSamag 46)
  25. Yad Malachi (Klalei HaRambam Ra'avad veSamag 47)
  26. So much so that the Sdei Chemed is willing to use the Samag to ascertain the correct text of the Rambam when the former doesn't disagree with the latter explicitly. Yad Malachi (Klalei HaRambam Ra'avad veSamag 48) and footnotes there.
  27. Yad Malachi (Klalei HaRambam Ra'avad veSamag 50)
  28. Yad Malachi (Klalei HaRambam Ra'avad veSamag 46)
  29. Yad Malachi (Klalei HaRambam Ra'avad veSamag 51) and footnotes there
  30. Yad Malachi (Klalei Tosafot 10)
  31. Yad Malachi (Klalei Rashi 1), Chiddushei Rabbi Akiva Eiger Eruvin 47 and Yevamot 30b, Shu"t Rabbi Akiva Eiger Mahadurah Kamma 222:8. See Minchat Chinuch Mitzvah 116 and Tzitz Eliezer vol 8 Siman 32.
  32. Shu"t HaRadbaz (vol. 1 Siman 109, vol. 3 Siman 510, vol. 4 Siman 108/1180)
  33. Beit Yosef (Orach Chaim 10). See Matnat Yado ad loc for extensive citations.
  34. Sheyarei Kenesset HaGedolah (Klalei HaPoskim 19). Regarding saying Kim Li KeRashi, see Sdei Chemed Klalei HaPoskim 8:9
  35. Yad Malachi (Klalei Rasi 2)
  36. Yad Malachi (Klalei Rashi 4). See also Shem HaGedolim (Gedolim, Shin 35).
  37. Yad Malachi (Klalei Tosafor 22)
  38. Kenesset HaGedolah (Yoreh Deah 124 Hagahot Beit Yosef 104, Yad Malachi (Klalei Rashi 3)
  39. Pri Toar Yoreh Deah 21:2, Matnat Yado on Yad Malachi Klalei HaRif fn. 104
  40. Yad Malachi (Klalei Tosafot 9)
  41. Yad Malachi (Klalei Rashi 7)
  42. Yad Malachi (Klalei Rashi 7). See Matnat Yado ad loc who quotes some who say that the commentary on Nedarim is Rashi until Daf 22, and then substituted with Rabbeinu Gershom Meor HaGolah for the remainder of the Masechet and the Netziv (Ha'Emek She'elah She'elta 166) who holds that the commentary was written by the Rivan.
  43. Matnat Yadot (Klalei Rashi fn. 20) quotes the Maharatz Chayut (beginning and end of Taanit) who says it's not Rashi, but the Chidah says the large number of printing errors are misleading.
  44. Yad Malachi (Klalei Rashi 5), Elyah Rabbah (Orach Chaim 540:8). See Maamar Mordechai 557 at the beginning who thinks it may have been R' Yehoshua Boaz. See also Maadanei Yom Tov (Berachot 8 at the end), Shem HaGedolim (Gedolim, Shin 35), Birkei Yosef Orach Chaim 15, Sdei Chemed (Klalei HaPoskim 8:7), and Rav Avraham Havatzelet's article in Moriah (19:1/2, pages 106-116) at length.
  45. Yad Malachi (Klalei Tosafot 15), though, his words are somewhat cryptic also.
  46. Yad Malachi (Klalei Tosafot 11)
  47. Yad Malachi (Klalei Tosafot 12)
  48. Yad Malachi (Klalei Tosafot 19)
  49. Yad Malachi (Klalei Tosafot 23)
  50. Klalei HaPoskim 19
  51. Yad Malachi (Klalei Tosafot 24). Matnat Yado fn 52 has a whole list of those who agree, including Sdei Chemed (Klalei HaPoskim 9:2, Yabia Omer vol. 8 Orach Chaim vol. 4), and Taharat HaBayit vol. 3 2 page 551. See also Sdei Chamed (ibid 9:3-6) about if the answers are flipped elsewhere or if only one is presented.
  52. Yad Malachi (Klalei Tosafot 25)
  53. Yad Malachi (Klalei Tosafot 20)
  54. Yad Malachi (Klalei Tosafot 8)
  55. Yad Malachi (Klalei Tosafot 22)
  56. Yad Malachi (Klalei HaPoskim 25)
  57. Yam Shel Shlomo (Hakdama to Bava Kamma), Yad Malachi (Klalei Tosafot 20)
  58. Yad Malachi (Klalei Tosafot 14). For more on the redaction of the Tosafot we have today, see Rabbi Ephraim Kanarfogel's The Intellectual History and Rabbinic Culture of Medieval Ashkenaz (Detroit: Wayne State University Press, 2012),"The Emergence and Development of Tosafot on the Talmud" (Hakira vol. 15 page 143), "Redacting Tosafot on the Talmud: Part I―Sources" (Hakira vol. 18 page 235),"Part II―Editing Methods" (Hakira vol. 20 page 191), and Tosafot Tukh on the Talmud: A Critical Analysis of R. Eliezer of Tukh's Tosafot Redaction and Marginalia by Rabbi Dr. Aryeh Leibowitz
  59. Yad Malachi (Klalei Tosafot 22)
  60. Yad Malachi (Klalei Tosafot 17)
  61. Yad Malachi (Klalei Tosafot 27)
  62. Yad Malachi (Klalei Tosafot 21)
  63. Yad Malachi (Klalei HaRosh 30), see Matnat Yado fn. 68 for the list of those who subscribe to this view and the few who claim the Rosh will quote Tosafot even though he doesn't agree with them.
  64. Yad Malachi (Klalei HaRosh 33)
  65. Yad Malachi (Klalei HaRosh 43)
  66. Yad Malachi (Klalei HaRosh 38)
  67. Yad Malachi (Klalei Rosh 28, 31). See Matnat Yado fn 62 who adds that there's a discussion regarding when the Rif is a Daat Yachid if we should assume the Rosh still stands with him or of we should count the Rosh with those who disagree. There's also a general issue of how the Rosh originally wrote his Pesakim, as a commentary on the Rif with the direct quotes added in later (Tekafo Kohen 46, Korban Netanel (Klalim 2)) or like we have it (Shem HaGedolim HaRosh). Sdei Chemed (Klalei HaPoskim 11:2) points out how the Chatam Sofer did not have the Shem HaGedolim to be aware of this approach. See Yad Malachi (Klalei HaTalmud 510, 517) and "Contradictions" below.
  68. Korban Netanel (Klalim 9, 10)
  69. Yad Malachi (Klalei HaRosh 35)
  70. Yad Malachi (Klalei HaRosh 39)
  71. Yad Malachi (Klalei HaRosh 42)
  72. Yad Malachi (Klalei HaRosh 44)
  73. Yad Malachi (Klalei HaRosh 34)
  74. See Shulchan Aruch Yoreh De'ah 15 and commentaries at length and above discussion from Tekafot Kohen. Yad Malachi (Klalei HaRosh 29)
  75. Tur Choshen Mishpat 72
  76. Beit Yosef Yoreh Deah 341 and Choshen Mishpat 110
  77. Bach Yoreh Deah 334:10
  78. Beit Yosef Yoreh Deah 201 s.v. Aval Rabbeinu and Yoreh Deah 341
  79. See Beit Yosef Orach Chaim 12, Shu"t Beit Yosef Even HaEzer Siman 2, and Maggid Meisharim (Parashat Vayakhel, Rosh Chodesh Nissan 296) where he actually writes to follow the Pesakim and not the Teshuvot, unless it's clear that the individual Teshuvah was written later. See also Shu"T Maharanach Siman 46 and Shu"t Meishiv Davar vol. 1 Siman 24. Yalkut Mefarshim on Yad Malachi ad loc
  80. Shu"t Maharil Siman 77
  81. Korban Netanel (Klalim 18). See sources cited in Yad Malachi (Klalei HaRosh 46) and Matnat Yado ad loc at length.
  82. Yad Malachi (Klalei HaRosh 37)
  83. Vayechi Yosef Gittin page 67 col. 3, Matnat Yado fn. 93, see Yad Malachi (Klalei Rosh 40) who writes similarly in the name of the Bach.
  84. Yad Malachi (Klalei HaRosh 36)
  85. Yad Malachi (Klalei HaRosh 41)
  86. Yad Malachi (Klalei HaRosh 45)
  87. Yad Malachi (Klalei HaTur 1)
  88. Yad Malachi (Klalei HaTur 14)
  89. Yad Malachi (Klalei HaTur 14)
  90. Yad Malachi (Klalei HaTur 17)
  91. Yad Malachi (Klalei HaTur 3) and Matnat Yado fn. 4
  92. Yad Malachi (Klalei HaTur 11)
  93. Yad Malachi (Klalei HaTur 27)
  94. Yad Malachi (Klalei HaTur 12)
  95. Yad Malachi (Klalei HaTur 13)
  96. Yad Malachi (Klalei HaTur 19)
  97. Yad Malachi (Klalei HaTur 25)
  98. Yad Malachi (Klalei HaTur 29)
  99. Yad Malachi (Klalei HaTur 31)
  100. Yad Malachi (Klalei HaTur 5)
  101. Korban Netanel (Klalim 5)
  102. Yad Malachi (Klalei HaTur 7)
  103. Matnat Yado fn. 24
  104. Yad Malachi (Klalei HaTur 8)
  105. Yad Malachi (Klalei HaTur 9)
  106. Yad Malachi (Klalei HaTur 10)
  107. Yad Malachi (Klalei HaTur 2)
  108. Perishah Choshen Mishpat 182:14, Korban Netanel (Klalim 4)
  109. Korban Netanel (Klalim 5)
  110. Yad Malachi (Klalei HaTur 16)
  111. Yad Malachi (Klalei HaTur 18)
  112. Yad Malachi (Klalei HaTur 20)
  113. Yad Malachi (Klalei HaTur 23). It is noteworthy, however, that the Taz Yoreh Deah 240:2 elucidates that the Tur does disagree with his father a number of times in Choshen Mishpat but does so by quoting someone else of the same position as his father and disagreeing with that Rishon instead. This way, it's "Shelo beFanav," in terms of Hilchot Mora Av.
  114. Yad Malachi (Klalei HaTur 24)
  115. Yad Malachi (Klalei HaTur 30)
  116. Yad Malachi (Klalei HaTur 32)
  117. Yad Malachi (Klalei HaTur 34). See Sdei Chemed (Klalei HaPoskim 12:7) for a discussion of this rule and its exceptions. Matnat Yado fn. 99. Same is true for "היה מתיר."
  118. Yad Malachi (Klalei HaTur 21)
  119. Yad Malachi (Klalei HaTur 22)
  120. Yad Malachi (Klalei HaTur 26), Matnat Yado fn. 87
  121. Yad Malachi (Klalei HaTur 15)
  122. Yad Malachi (Klalei HaTur 33)
  123. Shem HaGedolim vol. 2 "Seder Rav Amram"
  124. Yad Malachi (Klalei HaRav HaMaggid 1)
  125. Matnat Yado fn. 1
  126. Shu"t HaRivash Siman 473
  127. Matnat Yado fn. 5 writes how the Radbaz claims he was a Talmid of the Rashba, but the Chida argues the dates don't line up.
  128. Yad Malachi (Klalei HaRav HaMaggid 2)
  129. Matnat Yado fn 3
  130. Yad Malachi (Klalei HaRav HaMaggid 3)
  131. Shu"t HaRivash Siman 168, Shu"t HaRashbetz vol. 4 Tur 3 Siman 2 end of s.v. ואין לומר, Yad Malachi (Klalei HaRav HaMaggid 4)
  132. Shem HaGedolim Maarechet Vav Ot 4. See Sdei Chemed (Klalei HaPoskim 7:1), Kovetz Ohr Yisrael (vol. 54 page 207), and Matnat Yado fn. 7 at length
  133. See the last line of Shu"t HaRivash Siman 117. The Kessef Mishneh (Hilchot Ishut 3:5) even refers to the commentary as the Mefaresh. Yad Malachi (Klalei HaRav HaMaggid 5)
  134. Yad Malachi (Klalei HaTur 26) and Matnat Yado ad loc fn. 88
  135. Regarding the story with the Ritva, it's actually about the Maggid Mishneh, whose name was also Yom Tov, unlike the Migdal Oz, whose name was Shem Tov. See Toldot Chachmei Yisrael (Shulman, vol. 3 page 137)
  136. Yad Malachi (Klalei HaMigdal Oz 8). See Matnat Yado ad loc for the whole list of citations.
  137. Kesef Mishneh Hilchot Chametz uMatzah 1:6, Yad Malachi Yalkut Mefarshim.
  138. Yad Malachi (Klalei HaRashba 2)
  139. Pri Chadash Orach Chaim 498:9, Yad Malachi (Klalei HaRashba 3)
  140. Yad Malachi (Klalei HaRashba 4)
  141. Matnat Yado fn. 10
  142. Yad Malachi (Klalei HaRashba 5)
  143. Yad Malachi (Klalei HaRashba 6)
  144. Yad Malachi (Klalei HaRashba 7)
  145. Matnat Yado 18-19. See Sdei Chemed (Klalei HaPoskim 10:3) regarding the practical applications of this approach.
  146. Yad Malachi (Klalei HaRitva 9)
  147. Yad Malachi (Klalei HaRan 13)
  148. Matnat Yado 38
  149. Yad Malachi (Klalei HaRan 10)
  150. Yad Malachi (Klalei HaRan 10). See Sdei Chemed (Klalei HaPoskim 4:1)
  151. Yad Malachi (Klalei HaRan 12), though the Beit Yosef also writes this way in Choshen Mishpat, perhaps one could argue he knew it was by the Nimukei Yosef but continued to call it the Ran, as that was what common people thought, similar to his attitude towards Shu"t HaRamban HaMeyuchasot that are really the Rashba