Minhag
MINHAG
MINHAG (Heb. מִנְהָג; "custom," "usage") from the verb "to lead."
definition
The word is found in the Bible (ii Kings 9:2) meaning "the driving" (of a chariot) but it was taken by the rabbis to refer to "usage." As such, it is used in a wide variety of senses. It refers primarily:
(1) to customs which, having been accepted in practice, became binding and assume the force of *halakhah in all areas of Jewish law and practice (see below);
(2) to local custom (minhag ha-makom) which obtains in one locality, whether a whole country or a single community, but not in another, and is binding upon the local community. The question of the extent to which the minhag is binding upon those who come from a place where it does not obtain is exhaustively debated in the Talmud and codes. The Mishnah already takes notice of this difference of local custom and its binding force (Pes. 4). These local minhagim have been collected in special *minhagim books;
(3) The word minhag is also employed to designate the various liturgical rites which have developed, e.g., minhag Romania, minhag Polin, minhag Ashkenaz (see *Liturgy).
general
Custom is one of the most important foundations of the halakhah. It can be assumed that the Written Law (cf. *Oral Law) already takes for granted the continuation of some customs that were common practice before the giving of the law. This is probably the reason why the Torah makes no mention of laws which are fundamental in some domains, in spite of their importance and central position in life (such as the detailed laws of *betrothal and *marriage, modes of acquisition, *buying and selling). On the other hand, external customs entered the world of the precepts during later periods as a result of prevailing conditions, and were either temporarily integrated or remained permanently. An instructive example is that of the *New Moon, which the Torah only mentions with regard to the additional sacrifice and the blowing of the trumpets (and this too was probably only intended against those who believed it to be a festival to the god of the *Moon as was common in the ancient Middle East). During the days of the First Temple, however, as a result of Canaanite-Phoenician influence, the day became an accepted and important festival in Israel to such a degree that work and commerce were interrupted (with the difference that with the Jewish people the New Moon lost its pagan character and assumed a purified Jewish value of "a statute for Israel – a law of the God of Jacob" (Ps. 81:5)). Frequently, a particular matter of the halakhah is nothing but the consolidation of customs created among the people over the generations (e.g., see *Mourning, *Fasts). There are some customs which are as binding as legal regulations (see Tosef., Nid. 9:17) while others are no more than a consensus (ʾajmāʿ with Muslims) which is accepted in cases where there is no fixed and decided halakhah ("Go out and see what the custom of the public is and act likewise" (tj, Pe'ah 7:5, 20c); cf. "Go out and see how the people act" or "the people are accustomed" (tb, many times)). There are also individual customs in situations where there is no existing halakhah; these may be a local custom ("the custom of the country" (Suk. 3:11; Ket. 6:4; bm 7:1, 9:1; et al.); "in a place where the custom has been" (Pes. 4:1–5; Suk. 3:11; Av. Zar. 1:6; et al.); "the custom in Jerusalem" (bb 93b; Sof. 18:7)), or a custom of a section of the public ("the custom of those traveling with a caravan" (Tosef., bm 7:13); "the custom of the sailors" (ibid.), "the custom of women" (tj, Pes. 4:1; 30c–d); "the custom of landlords" (Tosef., Pe'ah 2:21); "the custom of the priests" (ibid. 4:3)), and even from one of these "there must be no deviation" (Tosef., bk 11:18; et al.). There are, however, also customs which are in opposition to the halakhah, and of these the sages said: "The custom annuls the halakhah" (tj, Yev. 12:1, 12c; and cf.: "R. Judah said, the halakhah is according to the opinion of Bet Shammai, but the majority acts according to the opinion of Bet Hillel"; Tosef., Ter. 3:12). It is obvious that "just as punishment is inflicted for transgression of the halakhah, so it is inflicted for transgression of a custom" (tj, Pes. 4:3, 30d) and "permitted things [or actions] which the custom of others considers as prohibited, you are not authorized to permit them in their presence" (Pes. 50b–51a). It has also been prescribed many times that a man should deviate "neither from the custom of the place nor from that of his ancestors" (see tj, Pes. 4:1, 30d; etc.), even though the reason for the custom has become obsolete. The following saying indicates the importance of the custom as a basis of the halakhah: "It has become accepted by the people that the halakhah cannot be fixed until a custom exists; and the saying, that a custom annuls the halakhah, applies to a custom of the earnest, while a custom for which there is no proof from the Torah is nothing but an error in reasoning" (Sof. 14:16).
Indeed, to prevent vain and foolish customs superseding the halakhah, the rabbis opposed following stupid customs which had their origin in error or even in periods of persecution. *Yehudai Gaon, who wrote to the population of Palestine in order to abolish the "custom of the persecution era" which they respected "against the halakhah" was unsuccessful. He received the reply that "A custom annuls the halakhah" (Pirkoi b. Baboi, L. Ginzberg, Genizah Studies, 2 (1929), 559–60). Maimonides violently attacked erroneous customs (see, e.g., Yad, Issurei Bi'ah 11:14–15, even in opposition to the opinion of the geonim; cf. responsa of Maimonides, ed. A.H. Freimann, §98–99), but even he stressed that there are certain cases which "depend on the custom" (see, e.g., Yad, Issurei Bi'ah 11:5–7). Customs arising from ignorance, however, and even those of which it was evident, not only from their origin but by their very nature, that they belonged to the "ways of the Amorites" and were to be suspected as idolatrous, often penetrated within the limits of the halakhah and secured a permanent place. It is significant that such customs often became so popular with the public, in spite of the opposition of the rabbis, that more importance was attached to them than to some of the strictest precepts of the Torah. There were instances where strange and doubtful customs became sanctified with the masses only because of the superstitious beliefs attaching to them. Such customs penetrated not only the text of the prayers but also the field of the prohibited and the permitted (see *Issur ve-Hetter). They were especially tenacious in critical periods of human life (birth, marriage, death) or in the calendar (Day of Atonement, New Year). Thus, for example, some consider that the essentials of repentance and expiation can be found in the customs of *Kapparot (expiation ceremony) and *Tashlikh, and throughout the whole year do not visit the synagogue except for the Kol Nidrei ceremony. One common denominator of all these customs is their foreign origin and nature. However, they became so popular with the masses that even some of the rabbis attempted to find grounds to permit them, even through some kind of compromise. This was naturally even more true of customs which did not stem from a foreign origin, such as the recitation of piyyutim in the morning benedictions of Shema and during the repetition of the Amidah prayer by the ḥazzan, which became the accepted practice in many countries in spite of the opposition of many authorities. The same also applies to the foreign custom of addressing prayers to angels or mentioning their names in the mezuzah. This situation, whereby nonsensical customs found a home in Jewish life, still remains and has possibly even been strengthened in modern times. It is sufficient to mention the demonological customs connected with birth and circumcision (the night of vigil before the circumcision) or with death and burial, such as the strange custom current among Ashkenazim that a person whose parents are alive leaves the synagogue when the souls of the dead are remembered, or the "prohibition" of the sons from entering the cemetery during their fathers' funeral, which is widespread among the Ashkenazim of Jerusalem. Thus it can be said that the custom has been the most important channel through which external influences, even odd and unwanted ones, penetrated and still penetrate into the domain of halakhah. The general importance of customs is also reflected in literature.
[Moshe David Herr]
in jewish law
Minhag as a Source of Law
Three possible meanings may be attributed to the term "source of law": a historical source of the law, i.e., a source which factually and historically speaking constitutes the origin of a particular legal norm; a legal source of the law, i.e., the source which lends the particular normative direction legal recognition and validity as part of the entire body of legal rules comprising the relevant legal system; and a literary source of the law, i.e., the informative source constituting the authentic repository for purposes of ascertaining the content of a particular legal direction (see *Mishpat Ivri). Minhag, as does custom in other legal systems, sometimes serves as the historical source of a particular legal norm and sometimes as the legal source.
as a historical source
A study of the formative stages of any legal system will reveal that to some extent its directions originated from customs evolved in the practical life of the society concerned, and that only at a later stage was legal recognition conferred on such customs – by way of legislation or decision on the part of the legislator or judge. This phenomenon is also evidenced in Jewish law. Thus, for instance, certain legal usages which had been prevalent in pre-Mosaic Hebrew society later came to be affirmed in the Torah, as, for example, the law of the bailees' liability (see *Shomerim), and sometimes also with material modifications, as with regard to the laws of yibbum (see *Levirate Marriage and Ḥaliẓah). The historical source of such directions is the pre-Mosaic usage, but their legal source is the Written Law, which gave them recognition and validity. Custom has fulfilled this historical function in all stages of the development of Jewish law, by serving to prepare a particular normative direction for acceptance into this legal system.
as a legal source
In Jewish law minhag, like custom in any other legal system, has also fulfilled an important function as a legal source, and it is with custom in this capacity that this article is concerned. Custom constitutes a legal source when the legal system, in certain circumstances and upon fulfillment of certain requirements, recognizes a consistently followed course of conduct as a binding legal norm. When custom serves merely as a historical source, it is only capable of preparing the normative course of conduct toward acquisition of legal recognition by means of a law-creating source, such as *takkanah; however, when custom is a legal source, the normative usage already has legal force by virtue of such usage alone, without the affirmation of any law-creating source. As a legal source, the primary purpose of custom is like that of legislation (see *Takkanot ha-Kahal), namely to fill a void in the existing halakhah when the latter offers no solution to new problems that arise, or in order to rectify or vary existing legal rules if and when the need arises. There is, however, a formal difference – which, as will be seen below, is also of substantive importance – between these two legal sources: legislation functions demonstratively and directly, at the direction of the competent authority, such as the halakhic scholars or the leaders of the people and of the community; custom, on the other hand, functions without preconceived intent and anonymously – at the hands of all or part of the people at large – and in order to ascertain it, it is necessary to "go and see what is the practice of the people" (Ber. 45a; Pes. 54a; in the tj the version is, "go and see what is the practice of the public, and follow it" (tj, Pe'ah 7:6, 20c; Ma'as. Sh. 5:3, 56b; Yev. 7:2, 8a). It is true that even in the case of a normative direction originating from custom there is the indirect influence of the halakhic scholars, by virtue of a certain control which they exercise over it (see below; see also Yad, Mamrim 1:2–3); nevertheless it is the public as a whole that is the direct creative source of the legal direction. The public is invested with such creative authority on the presumption that, since its conduct is founded on the Torah, its creative authority will be directed in the spirit of the Torah, in accordance with the statement of Hillel the Elder made in affirmation of the binding force of a public custom in determining the halakhah: "Leave it to Israel. If they are not prophets, they are still the children of prophets" (Pes. 66a).
substantiating the validity of minhag as a legal source
Some of the scholars apparently sought to explainthe validity of a custom by saying that it had to be assumed that the earliest source of such a norm – now appearing in the form of custom – was ancient halakhah founded on transmitted tradition, takkanah, or other legal sources, but that the latter had become forgotten in the course of time, leaving the norm in the form of a custom only. This opinion finds expression in the Jerusalem Talmud: "Any Torah which has no source (bet av) is no Torah" (tj, Shab. 19:1, 17a stated in relation to the baraita (Pes. 66a) in which Hillel recalls that the custom followed by the people concerning the paschal sacrifice on a Sabbath day he had heard mentioned by Shemaiah and Avtalyon (see below); the term torah is here used in the sense of custom). Elsewhere it is stated: "A custom which has no support in the Torah, is like the erroneous exercise of discretion" (Sof. 14:18; see also Mordekhai bm 366). According to this view custom has no independent creative force, but merely offers testimony to the existence of a rule created by one of the legal sources of the halakhah. In post-talmudic times some halakhic scholars expressly adopted this attitude toward custom (Resp. Rif no. 13; Nov. Ramban bb 144b, s.v.Ha de-Amrinan). Some scholars explained the decisive power of custom, even when this was called forth only to decide between disputing scholarly opinions (see below), on the basis that a custom proves the existence of an ancient, deliberate determination of the law which has become forgotten, being preserved in this form only (Resp. Rosh 55:10). The source of authority of custom remained a matter of dispute among the aḥaronim (for particulars, see Pitḥei Teshuvah Ḥm, 163, n. 16).
Certainly there are customs which have their source in ancient halakhah, as is evidenced by the Jerusalem Talmud in the matter of the paschal sacrifice on a Sabbath day (see above) and in other instances (see, e.g., Tosef., mk 2:14–15; see also Pes. 51a and tj, Pes. 4:1, 30d). However, it transpires that the distinguishing feature of custom as a legal source lies not in its probative efficacy but in the law-creating authority of the public, whether the custom serves to decide between disputing opinions or to add to the existing halakhah. This is undoubtedly so as regards the validity of custom in matters of the civil law (dinei mamonot), where it is within the power of custom to operate even contrary to the existing law, in terms of the general principle of Jewish law which permits the parties to a transaction – and all the more so the public as a whole – to contract out of the Law of the Torah (see below). This is accepted by the majority of halakhic scholars as the explanation for the rule that custom overrides the law in matters of the civil law, which is certainly a classic illustration of the creative activity of custom.
Elucidation of Terms
At times, a particular halakhic direction which has its source in custom is also called dat (Beẓ. 25b and Rashi thereto) or dat yehudit (Ket 7:6 and Rashi to Ket. 72a; Tosef., Ket. 7:7). At other times the term minhag is used by the halakhic scholars to describe a normative direction having its source in takkanah (e.g., tj, Ket. 1:5, 25c; Mid. Prov. to 22:28) and even the verb הנהיג is sometimes used to describe the enactment of a takkanah (cf. Tosef., rh 4:3 with rh 4:1 and Suk. 3:12). The use of a common term to describe both takkanah and custom (cf. further Yad, Mamrim 1:2–3; Resp. Rashba, vol. 2, no. 268) is attributable to their common function, namely legislative activity (each in its own different way, as already mentioned). Sometimes the term minhag is also used to describe halakhah which has its source in the Bible itself (see Sifra, Emor 17:8, the law concerning habitation of a sukkah etc., described as minhag le-dorot; in Suk. 43a/b, the phrase is mitzvah le-dorot). Contrariwise, a normative direction having its source in custom is sometimes called halakhah (bm 7:8; Kid. 38b; and see Samuel's interpretation, in tj, Or. 3:8, 63b of the term halakhah appearing in Or. 3:9). Such use of common labels of minhag, takkanah, and halakhah for differing concepts not only calls for the exercise of great care in distinguishing the correct identity of each law appearing under such a name, but also offers proof of the legal efficacy of normative directions which have their source in custom and are integrated into the general halakhic system as a substantive part of it (even though there is a variance at times between the force of a direction originating from takkanah and one originating from custom; see below). Transgression against a direction decreed by custom is punishable by sanction: "Just as a fine is imposed in matters of halakhah, so a fine is imposed in matters of minhag" (tj, Pes. 4:3, 30d) and R. Abbahu even sought to have punishment by flogging imposed on a person who transgressed a prohibition decreed by custom (tj, Kid. 4:6, 66b; see also Kid. 77a).
At the same time, the scholars occasionally distinguished, primarily in the field of the ritual law, between a rule originating from custom and one originating from another legal source. Such distinctions, particularly from the amoraic period onward, are illustrated by the following examples: the majority of the amoraim held that the prohibition of *orlah (eating the fruit of young trees) outside of Ereẓ Israel hadits source in custom, and therefore they sought various legal ways in which to permit the fruit of orlah outside of Ereẓ Israel – something they would not have done had the prohibition belonged to the category of halakhah le-Moshe mi-Sinai (Kid. 38b–39a and see above). Similarly, there is recorded the talmudic dispute between R. Johanan and R. Joshua b. Levi as to whether the rite of taking the willow-branch on Sukkot (the branch that is raised and beaten on Hoshana Rabba) was an enactment of the prophets or a custom of the latter – i.e., a usage of the prophets but not enacted as a takkanah (Suk. 44a and Rashi ad loc.; see also Sha'arei Teshuvah no. 307); the answer to this question was relevant to the need (i.e., if it was an enactment) or otherwise (if it was a custom) for recital of a benediction at the time of beating the willow-branch (see Suk. 44a and see takkanot concerning benedictions in respect of matters instituted by the halakhic scholars). Even as regards deciding the halakhah in a matter under dispute, the amoraim distinguished between halakhah determined by way of open and deliberate decision, halakhah determined by custom introduced by the scholars, and halakhah determined by mere anonymous undirected custom (see tj, Shek. 1:1, 46a; Meg. 1:6, 70d; Nid. 3:1, 50c; and Pes. 4:6, 31a; Av. Zar. 14b; Yev. 13b; Nid. 66a; et al.). Some of the Babylonian amoraim even laid down a further distinction, one relating to the nature of the custom. Thus three possibilities are distinguished: nahagu ha-am ("the practice followed by the people") was apparently interpreted by the Babylonian amoraim as referring to a usage not yet fully crystallized into an established custom, and therefore "we do not teach in this way initially, but should a person have done so, we allow the matter to stand"; minhag, to a crystallized custom which, although it has sufficient authority for the people to be taught to act from the start in accordance with it, nevertheless does not have the same force as a rule openly and expressly decided by the halakhic scholars – "we do not teach to act in this way in public, but we may teach (those who ask, to act according to the rule embodied in the custom)"; and that which is decided as halakhah, which must be published and made known to the public (Ta'an. 26b and see also Er. 62b and 72a). These distinctions relate primarily to the field of ritual law and not to the creative function of custom in civil law matters (see below, "Custom Overrides the Law").
Scriptural Support for the Validity of Minhag as a Legal Source
Halakhic scholars sought to rely on various scriptural passages as the source of the validity of custom. Simeon b. Yoḥai's statement, "Change not the custom set by your fathers!" is supported in the Midrash (Mid. Prov. 22:28, and see annotation there), by allusion to the scriptural injunction, "Remove not the ancient landmark, which thy fathers have set" (Prov. 22:28). R. Johanan found support for the validity of custom in another passage from the Book of Proverbs (1:8), "Hear, my son, the instruction of thy father, and forsake not the teaching of thy mother" (see Pes. 50b; Ḥul. 93b; cf. also She'iltot, Va-Yakhel, Sh. 67; Halakhot Gedolot end of Hil. Megillah). Sherira Gaon quotes the following tradition, which is not extant in the Talmuds: "Whence is it said that custom obliges? As it is said, 'Thou shalt not remove thy neighbor's landmark, which they of old time have set'" (Deut. 19:14; Sha'arei Ẓedek, 1:4, 20; Tur, Ḥm 368). The discussion concerns an article stolen from its owner and sold to another; in law, if the owner has "despaired" (see *Ownership), the purchaser will not be required to return the article to him, but Sherira Gaon decided that there was in operation a custom to restore the article in such circumstance, from which there could be no departure. The factor which is common to all legal sources is that a norm which has been followed for some considerable time (see below) acquires for itself a fixed place in the halakhah and may not be overlooked nor "trespassed" upon (cf. the comment of Philo on the above scriptural passage, Spec. 4:149).
Functions and Categories of Minhag
Just as takkanah – the directed legislation of the halakhic scholars – has functioned in all fields of the halakhah, so custom – anonymous legislation – has also functioned in all its fields, although in some of them the measure of authority of custom is limited as compared with that of takkanah. Custom fulfills a number of functions in halakhah and is also divisible into several further categories.
functions
Custom serves three possible functions:
(1) as the decisive factor in the case of disputing opinions as to a particular halakhic rule; in this event the custom operates even where the halakhah, but for such a custom, would be decided differently in accordance with the accepted rules of decision;
(2) as adding to the existing halakhah, whenever the practical realities give rise to new problems to which the former has no available answer;
(3) as establishing new norms which stand in contradiction to the existing halakhah, i.e., norms which serve to vary the latter, or derogate therefrom.
The latter two functions of custom parallel that of legislation (see takkanot), save that the last one (abrogation of an existing law) is of lesser efficacy than is the case with legislation (see below).
categories of minhag
Custom (Minhag) and Usage (Nohag). At times minhag functions of its own inherent power, independently and directly, just as does a direction by express takkanah; at other times it functions by way of an inference that the parties to a particular matter acted as they did on the assumption that the decree of the minhag concerned would determine their relationship. This distinction is developed in other legal systems too, and in English law minhag of the first kind is termed "legal custom" or simply "custom," and minhag of the second kind "conventional custom" or "usage." In current Hebrew the latter is customarily termed nohag.
General Custom and Local Custom
A custom may be general in the sense of obliging the whole of the people or the public, or it may be local and obligatory only for the people of a particular place, in which case it is termed local custom, mores civitatis in Roman law. In the same way the operation of a custom may be confined to people of a particular class, occupation, etc., and further like subdivisions of custom may be made (see below).
Minhag as Deciding the Halakhah
In case of dispute between halakhic scholars as to the law, custom decides the issue – whether in circumstances where there are no established rules of decision concerning the particular matter, or in circumstances where the custom stands in contradiction to the accepted rules of decision. The matter is illustrated by the following examples: It is recorded that R. Tarfon differed from the majority opinion of the scholars with regard to the blessing to be recited over water (Ber. 6:8) and the amoraim, when asked how to decide the halakhah, replied: "go and see what is the practice of the people" (Ber. 45a; Eruv. 14b); this was also stated with regard to a similar question concerning the eating of *terumah (tj, Pe'ah 7:6, 20c; Ma'as. Sh. 5:3, 56b; and Yev. 7:2, 8a). In another case R. Judah and R. Yose held the view that just as the priests generally did not lift their hands when reciting the priestly benediction at the Minḥah (afternoon) service – because of the proximity of the service to the meal and the apprehension that a priest might lift his hands while intoxicated – so this was forbidden at the Minḥah service on the Day of Atonement (even though the above apprehension would not exist) lest this lead the priests to the erroneous practice of lifting their hands during weekday Minḥah services; however, R. Meir differed, holding that such lifting of the hands was permissible at the Minḥah service on the Day of Atonement (Ta'an. 26b). Although the accepted rules of decision required that the halakhah on the matter be decided according to R. Yose (see Eruv. 46b) – who in this case represented the stringent view – it was nevertheless decided according to the view of R. Meir – representing in this case the lenient view – for the reason that "the people followed the view of R. Meir" (Ta'an. 26b; see also Resp. Maharik no. 171).
According to some of the Babylonian amoraim, the power of determining the halakhah contrary to the accepted rules of decision was to be withheld from custom in matters concerning the ritual law (dinei hetter ve-issur). Thus in response to R. Johanan's statement, "In regard to carob trees, it has become the custom of the people to follow the rule of R. Nehemiah" (rh 15b) – i.e., contrary to the majority of the scholars – the question is asked: "In a matter of prohibition, shall it be permitted to follow a custom?" (ibid.). On the other hand, the amoraim of Ereẓ Israel – along with some Babylonian amoraim – conferred on custom the power of deciding the law in any case of dispute, even in matters of ritual law and even when it was contrary to the accepted rules of decision, for instance when decreeing in favor of an individual opinion against the majority opinion (tj, Shev. 5:1, the opinion of R. Johanan quoted in rh 15b; cf. the statement of Rava, "The custom accords with the view of R. Meir" Ta'an. 26b; see also Pes. 103a and Ber. 52b, contrary to the unqualified statement of the law in the Mishnah).
In the 13th century, *Meir b. Baruch of Rothenburg stated, "For in all matters on which the great halakhic scholars are in dispute, I hold that a stringent approach must be followed, save … when the permissibility of a matter has spread in accordance with the custom of the scholars by whom we have been preceded" (Resp. Maharam of Rothenburg, ed. Berlin, no. 386). At this time too the dispute concerning the extent to which it was within the power of custom to determine thehalakhah was continued. Thus Jacob *Moellin justified the custom of lending the money of orphans at fixed interest (ribbit keẓuẓah, see *Usury), contrary to the opinion of the majority of scholars, who held this to be prohibited; Moellin based his view on a solitary opinion (Resp. Maharil no. 37), which in fact only permitted such interest in respect of loans given from charitable funds (Or Zaru'a, Hil. Ẓedakah, no. 30), but Moellin extended the opinion to embrace also money lent by orphans, "for all matters concerning orphans are deemed to be matters of mitzvah, and this is truly so because they are alone and meek" (Maharil, loc. cit.). Other scholars contested this view: "There are places where it is customary for an *apotropos [guardian] to lend orphans' money at fixed interest, but this is an erroneous custom and should not be followed" (Rema to yd 160:18; see also Siftei Kohen thereto, n. 27).
Minhag as Adding to Existing Halakhah
In its previously described function, custom serves to decide between two existing disputing opinions rather than to create a new rule. The latter effect is achieved by custom in fulfillment of its second function, namely that of establishing a new rule in relation to a question to which the existing halakhah offers no solution. For instance, as regards the paschal sacrifice, it is enjoined that it shall be brought on the 14th day of the month of Nisan (Num. 9:3), even when this falls on a Sabbath day (Pes. 6:1); when Hillel the Elder was asked what the law was in the event that it had been forgotten to prepare the knife on the eve of the Sabbath – i.e., whether it was also permissible to have the knife fetched on the Sabbath – he replied: "Leave it to Israel! If they are not prophets, they are still the children of prophets" (i.e., to await the morrow and see how the people would act); on the morrow, "he whose sacrifice was a lamb, stuck it [the knife] in its wool, and he whose sacrifice was a goat, stuck it between its horns; he [Hillel] saw the act and recalled the halakhah, saying, 'thus have I received the tradition from Shemaiah and Avtalyon'" (Pes. 66a). Hillel thus left the solution to the custom of the people, only later recalling that this custom had its source in ancient halakhah. A further illustration is to be found in the reply given in the Jerusalem Talmud to the question whether it was necessary or not to set aside tithes from the fruit of trees in their fourth year: "when there is no clearly established halakhah on any matter before the court and you do not know what its true nature is – go and ascertain the custom of the public and act accordingly, and we see that the public does not set aside tithes in this case" (tj, Pe'ah 7:6, 20c and see Ma'as. Sh. 5:3, 56b). In this way custom served to decide the halakhah in a lenient manner (in tj, Yev. 7:2, 8a – the above rule is quoted in connection with the function of custom as deciding between disputing opinions; see also Resp. Rosh 55:10).
"Custom Overrides the Law" – Minhag Mevattel Halakhah
Many halakhic scholars devoted a great deal of attention and research to the question whether it was within the power of custom, "concealed legislation," not only to add to existing halakhah but also to vary the latter and set aside any of its rules in certain circumstances – as it was within the power of takkanah, "open legislation," to do. This function, which in talmudic sources is termed minhag mevattel halakhah ("custom overrides the law"), has been the subject of much dispute – as in other legal systems in which custom is a recognized legal source. In Roman law, for instance, disputing opinions are found on the question whether custom (mores, consuetudo) has the power to create also a rule that is contrary to existing law (contra legem, see J. Salmond, Jurisprudence (196612), 189–212; C.K. Allen, Law in the Making (19647), 82f.).
distinction between civil and ritual law
Jewish law distinguishes between civil and ritual law for purposes of the instant function of custom, recognizing the power of the latter to set aside the law in civil law matters but not in matters of the ritual law, where it cannot operate contrary to existing law in permitting that which has been prohibited. The explanation for this distinction lies in one of the substantive differences between these two fields of the law – one that relates to the freedom of stipulation (see *Contract; *MishpatIvri). In matters of the civil law the rule is, "a person may contract out of the law of the Torah" – i.e., the law is jus dispositivum, since the premise is that halakhic rules of the civil law are laid down as a binding arrangement only as long as the parties do not disclose their preference for an alternative arrangement. On the other hand, the directions of the ritual law are jus cogens, obligatory and not variable at the will of the parties concerned. The logical conclusion is that just as the order in civil law matters is variable at the instance of the parties to a particular transaction, so it may be varied by the public as a whole, which, as it were, stipulates in advance that such and such an order, contrary to that laid down in the Torah, is convenient and desirable for each and every one of its members (see Resp. Rosh 64:4; Resp. Rashbash no. 562; Resp. Maharashdam Ḥm no. 380). Thus custom, in expressing the collective will of the public, functions with power to change the halakhah in the civil law field – where the will to change the law has recognized authority – but not in the field of ritual law, in which a prohibition is obligatory and unchangeable whether at the will of the instant parties or of the public as a whole. In this function there is accordingly an important distinction between open legislation by way of takkanah and concealed legislation by way of custom. The Torah, in all fields, was entrusted to the authority of the halakhic scholars (see *Authority, Rabbinical), authority being delegated to them in the Torah itself to make legislation, whether to add to or derogate from the existing halakhah (see *Takkanot). This is not the case as regards the authority of the public in relation to concealed legislation; the public may decide, by way of minhag, between disputing opinions of the halakhic scholars within the existing halakhah, may add to the halakhah, but may not set aside any rule of the existing halakhah – except when the abrogation of such a rule is rendered possible at the hands of individual members of that public by way of express stipulation, i.e., in the field of civil law.
coinage of the phrase minhag mevattel halakhah
The essential principle that in the field of civil law custom overrides the law is mentioned in various parts of talmudic and post-talmudic halakhic literature (see below). However, the characteristic phrase for this principle, minhag mevattel halakhah, is quoted in the Jerusalem Talmud in connection with the following two matters: The first relates to the determination in the Mishnah (bm 7:1) of the laborer's working hours in two different ways: one whereby he goes to work early in the morning and returns home late, these being the hours of work according to law (bm 83a–b); the other, whereby the laborer goes to work at a later hour and returns home earlier. The Mishnah lays down that local custom determines the hours of work even if this is contrary to the hours laid down by law; the comment of R. Hoshaiah is, "that is to say the custom overrides the halakhah" (tj, bm 7:1, 11b), so that the employer may not withhold the wages of the worker by requiring that he abide by the legally prescribed working hours, but will himself have to abide by the working-hours decreed by custom – this without need for any proof that the parties had so intended (tj,ibid.). The second matter in which the phrase is quoted relates to the laws of ḥaliẓah (see *Levirate Marriage); the fact that this forms part of ritual law does not affect the premise that in the latter field of the law the doctrine of minhag mevattel halakhah does not operate. In the Mishnah (Yev. 12:1) it is stated that the ḥaliẓah rite may be performed with a shoe or sandal (both of leather) but not with anpilya (sock or shoe made of cloth) since only the first two are included in the Pentateuchal term na'al (Deut. 25:9). In the Jerusalem Talmud (Yev. 12:1, 12c) it is stated: "If Elijah should come and state that ḥaliẓah may be performed with a shoe he would be obeyed; that ḥaliẓah may not be performed with a sandal he would not be obeyed, for it has been the practice of the public to perform ḥaliẓah with a sandal, and custom overrides the law." In this particular case custom supports the existing halakhah, since the Mishnah permits ḥaliẓah with a sandal and this is not prohibited by any extant talmudic source; accordingly, if Elijah were to come and forbid performance of ḥaliẓah with a sandal he would be determining a new rule, contradicting the existing halakhah, and in such an event custom – in supporting the existing halakhah – would serve to override the new halakhah being laid down by Elijah, a function of custom effective in the field of the ritual law. (It is also possible that the phrase minhag mevattel halakhah was originally stated in relation to the laborer's hours of work and its application extended to the case of ḥaliẓah by the redactor of the talmudic discussion. It may be noted that the above version of the doctrine does not occur in Yev. 102a, where the rule, "if Elijah should come…" is also found, nor in bm 83a–b; see also Men. 31b–32a.)
The rule that it is not within the power of custom to render permissible an undisputed prohibition is stressed by the use, on several occasions, of the phrase, "Does the matter then depend on custom?" (Ḥul. 63a; bm 69b–70a). On the other hand, custom does have the power, even in the field of the ritual law, to render prohibited something that has been permitted, since the law is not abrogated thereby but only rendered more stringent: "Custom cannot set aside a prohibition, it can only prohibit that which has been permitted" (Yad, Shevitat Asor 3:3; see also Resp. Rosh 55:10). According to some scholars, custom – even in civil law matters – only overrides halakhah when it has been accepted by way of a communal enactment (see *Takkanot ha-Kahal; and see Nimmukei Yosefbb 144b; Nov. Ritba to Ket. 100a and Shittah Mekubbeẓet ad loc.; Bedek ha-BayitḤm 368:6, commentary on the statement of Sherira Gaon). This view seems to be in conflict with the plain meaning of a number of talmudic discussions, particularly as regards the rule of sitomta (affixing of a mark; see below), and was not accepted by the majority of the scholars. The matter was succinctly summarized by Solomon b. Simeon *Duran – after a detailed discussion of the two relevant talmudic references – as follows: "It will be seen that the doctrine of 'custom overrides halakhah' is true in matters of civil law, but erroneous when applied to a matter in which it has been the practice to permit something that is prohibited, for custom only has the power to prohibit something that has been permitted, and not to render permissible something that has been prohibited" (Resp. Rashbash no. 562).
minhag as varying the law in various fields
The facility of custom to override the law in civil matters has lent Jewish law great flexibility in adapting to changing economic realities, and many rules – sometimes even entire branches of the law – have come to be based on the legal source of custom.
In the Talmudic Period
The following are some of the rules that were laid down: deeds that are not signed as required by law are valid if prepared in accordance with local custom (bb 10:1; bb 165a; Kid. 49a); debts which according to law may only be recovered from the debtor's immovable property (Ket. 51a, 69b) may also be recovered from his movable property when it is local custom to recover them in this way (tj, Git. 5:3, 46d; in geonic times a special takkanah was enacted permitting the recovery of debts from the debtor's movable property since at that time most Jews had ceased to be landowners (see *Execution, Civil); this is an illustration of halakhah received first by way of custom and later by expressly enacted takkanah). Similarly, many illustrations of the rule that custom overrides the law are to be found in matters of the financial relationship between *husband and wife (see Ket. 6:3–4; Tosef., Ket. 6:5–6; see also Beit ha-Beḥirah, Nov. Rashba, and Shitah Mekubbeẓet to Ket. 68b).
In the Post-Talmudic Period
In this period too custom actively fulfilled the far-reaching function of changing the law, this phenomenon sometimes leading to sharp dispute – even in the case of one specific matter only – and at other times accepted by all scholars in relation to an entire branch of the law. Thus, as regards the authentication of deeds (see *Shetar) – which according to law must be done by three judges and is ineffective if done by a single judge (Ket. 22a) – it was stated in the 15th century: "For the scholars of the yeshivot it is the accepted custom for deeds to be authenticated by the signature of one [judge], and this is a possible application of the doctrine that custom overrides the law in matters of the civil law" (Terumat ha-Deshen, Resp. no. 332). This custom was accepted by Moses Isserles (RemaḤm 46:4), but others differed (see Yamshel Shelomo, bk 10:11; Siftei KohenḤm 46, n. 8). On the other hand, it is generally accepted that the extensive field of tax law is largely founded on the legal source of custom. This is due to the fact that halakhic principles stated in the Talmud in this field (including also the rule of *dina de-malkhuta dina and the laws of *partnership) were unable to offer adequate solutions to the multiple legal problem that had arisen – commencing from the tenth century onward – in this field of the law (see *Taxation). At first a certain hesitation was expressed concerning the extent to which it was within the power of custom to create an obligation even when it was contrary to "established and known halakhah" of the Talmud concerning tax law matters (see statement of Baruch of Mainz, 12th-century author of the Sefer ha-Ḥokhmah, quoted in Mordekhaibb no. 477); later, however, this hesitation gave way to full recognition of the validity of any legal rule or usage sanctioned by custom, even when it was contrary to the existing halakhah.
Nowhere are the tax laws founded on talmudic sanctity and everywhere there are to be found variations of such laws deriving from local usage and the consent of earlier scholars; and the town residents are entitled to establish fixed takkanot and uphold recognized customs as they please, even if these are not according to halakhah, this being a matter of civil law. Therefore if in this matter they have an established custom, it should be followed, since custom overrides the halakhah in matters of this kind (Resp. Rashba, vol. 4, nos. 177, 260 and see *Taxation for further particulars).
The preference for flexible custom above rule of halakhah as regards the legal order in all public matters was emphasized by Israel *Isserlein:
In all matters affecting the public, their custom shall be followed in accordance with the order they set for themselves as dictated by their needs and the matter under consideration, for if they be required to follow the strict law in every matter, there will always be strife among themselves; furthermore, at the outset they allow each other to waive the strict law and make up their minds to follow the decree of their own custom (Terumat ha-Deshen, Resp. no. 342).
At the same time, the halakhic scholars made every effort to integrate the legal norm originating from custom into the pattern and spirit of the rules within the Jewish legal system, and in this regard Isserlein adds (ibid.):
Even though it has been said that in tax matters custom overrides the law, it is at any rate desirable and proper to examine carefully whether we can reconcile all customs with the strict law and even if not entirely so, it is yet preferable that we find support and authority in the statements of the scholars and substantiate them with the aid of reason and legal logic (ibid.).
In this and in other ways – for instance by means of the control exercised by the halakhic scholars to ensure that rules originating from custom should not depart from the Jewish law principles of justice and equity – the rules of tax law, largely derived from custom, became an integral part of the Jewish legal system.
In Jewish Law in the State of Israel
The stated power of custom continues even in present times actively to assert itself in Jewish law, a fact that finds expression particularly in the decisions of the rabbinical courts in Israel. A notable example concerns the matter of severance pay, payable to the employee on his dismissal. The rabbinical courts have sought various legal ways of conferring binding legal force on the employer's duty to pay this (see *Ha'anakah), and one of the principal ways has been reliance on the legal source of custom. Thus it was held, "since in our times there has spread this custom of paying compensation to employees … we have to enforce this as an obligation according to the law of the Torah, in terms of the rule stated in regard to the hire of workers: 'all in accordance with local custom'" (pdr, 1:330); moreover, by virtue of custom the claim for severance pay "is not a matter of grace, but a claim founded on law," for which the employer, even if a charitable institution, is liable (pdr, 3:286f.). Particular importance was held to attach to custom in this case, since "we have found support for it in the Torah and halakhah … this custom being based on the Pentateuchal law of the grant payable by the master to his Hebrew bound servant" (ha'anakat eved Ivri, pdr, 4:129; Yam ha-Gadol no. 22), and as such represented "a proper and just custom" (pdr, 1:330f.; cf. Terumatha-Deshen, Resp. no. 342 concerning reliance on the Pentateuchal law on tax matters).
minhag in the development of the modes of acquisition and of establishing obligation
In the above field – one that is particularly sensitive to changing trends in commercial life, the nature and scope of which is subject to constant fluctuation – custom was destined to exercise a decisive influence. A transaction executed in a verbal manner alone attains no legal validity in Jewish law, which provides for the transfer of ownership and establishment of an obligation in prescribed ways, generally requiring much formality, as by way of kinyan meshikhah or hagbahah, etc. ("acquisition by pulling or lifting," etc.; see *Contract; *Acquisition). Such formality was not in keeping with the demands of developing commerce, which called for more convenient and flexible modes of acquisition. Custom, in the form of mercantile or trade usage, was instrumental in providing a large part of the forthcoming answer to the stated demands.
As early as talmudic times (bm 74a), it was laid down that where it was the custom of the merchants for a sale of wine to be concluded by the purchaser affixing a mark (sitomta, Rashi ad loc. and Targ. Jon., Gen. 38:18) on the barrel of wine, this action would complete the sale even though the purchaser had not yet "pulled" the barrel and it remained in the seller's possession. This is an illustration of law overridden by custom, since in law acquisition was not complete until the purchaser had "pulled" the barrel, and until then both the seller and the purchaser remained free to retract; thus, in law the barrel would still have remained in the ownership of the seller but custom decreed that ownership of the chattel would pass to the purchaser after it was marked in the customary manner and after this the parties might no longer retract. From this halakhahSolomon b. Abraham *Adret concluded: "From this we learn that custom overrides the law in all matters of the civil law, in which everything is acquired and transferred in accordance with custom; hence the merchants effect kinyan in any mode according with their own usage" (Nov. Rashba bm 73b; see also Nimmukei Yosefbm, loc. cit.; Maggid Mishneh Mekhirah 7:6; SmaḤm 201, n. 2). In the course of time and on the basis of this principle, Jewish law came to recognize new modes of acquisition and of establishing obligation. Thus the fact that it was the trade custom to conclude a transaction by shaking hands, by making an advance on the purchase price (Piskei ha-Rosh, bm 5:72), or by delivering a key to the place where the goods were stored was held to be sufficient to confer full legal validity on a transaction concluded in any of these ways (Sh. Ar., Ḥm 201:2).
The extent of the creative power of custom in relation to the modes of acquisition has been the subject of much discussion founded on halakhic and economic considerations. R. Joel *Sirkes held that custom served to create new modes of acquisition in respect of transactions of movables only, "as there is much trade in these and he [the purchaser] has not the time to pull all the goods into his possession" (BahḤm 201:2), but the majority of scholars took the view that custom also served to do so as regards various transactions of immovable property (Yam shel Shelomo, bk 5:36; SmaḤm 201, n. 6; Siftei Kohen thereto, n. 1). Similarly, many scholars held that custom served to lend full legal validity to an acquisition of something not yet in existence (see *Acquisition, Modes of; *Contract; Resp. Rosh 13:20; other scholars differed – see Keẓot ha-Ḥoshen 201, n. 1; Netivot ha-Mishpat, Mishpat ha-Urim, 201, n. 1). At times custom operated with such far-reaching effect that not only were new modes of acquisition added to those halakhically recognized but even certain substantive elements of the existing acquisitory modes as determined by the halakhic scholars were changed (see, e.g., Resp. Ribash no. 345 on the custom concerning acquisition incidental to four cubits of land (kinyan aggav arba ammot karka), without specification of the land, contrary to the opinion of Maimonides, when locally the latter's statement of the law was otherwise followed; similarly, in Resp. Rosh 79:4).
In the 13th century a question of principle arose whose answer was to be of great significance as regards the measure of the creative power attaching to custom in general. The fundamental idea underlying the need in Jewish law for acquisitory formalities in the formation of legal transaction is that in a such manner the parties demonstrate their absolute gemirut ha-da'at ("making up of their minds") to close the transaction (see *Contract). The modes of acquisition that came to be decreed by custom also served to demonstrate such gemirut hada'at, since these represented accepted trade customs; however, the question arose whether local custom to close a transaction in a verbal manner alone was capable, from the standpoint of Jewish law, of conferring full legal validity on such transaction. *Asher b. Jehiel took the view that no affirmative conclusion could be drawn from the rule of sitomta (see above), except with regard to the validity of a custom requiring the performance of some act such as those mentioned above (hand-shake, etc.), "but never by mere speech alone, and even when this is the practice it is a bad custom which is not to be followed" (Resp. Rosh 12:3). This view denied custom the power of contraverting the basic requirement of Jewish law for the performance of some act indicating the absolute gemirut hada'at; a custom of this kind was therefore not proper except when it served only to change the substance of the act, but when it was aimed at eliminating the need for any act at all it was a "bad custom" from which the scholars would withhold validity (see below).
Another view was that whenever custom decreed mere speech alone as sufficient for the conclusion of a legal transaction it had to be assumed that absolute gemirut ha-da'at would come about in such a way too (opinion of Meir of Rothenburg and of R. Jehiel, quoted in Mordekhai, Shab. nos. 472–3), and this was the opinion accepted by the majority of the posekim. Thus it was decided that a person who had promised his neighbor to be the ba'al berit ("sandek"; see *Circumcision) at a circumcision ceremony was not free to retract from such an undertaking and assign it to another "since it has long been the practice among all Israelites for the privilege of performing such a mitzvah to be conferred in mere verbal manner and it is already established that custom is an important tenet in all matters of this kind" (Resp. Radbaz no. 278). This is also the position as regards the formation of partnership. According to talmudic law a partnership is formed by performance on the part of each partner of an act of acquisition in relation to the share of the other partners (Ket. 10:4; Yad, Sheluhin 4:1; and see *Partnership). However, it was held that "where it is local custom to become a partner even by speech alone – there will be a partnership; such is the custom in this country too … and so we decide in every case, for custom is an important matter in the field of the civil law" (Resp. Radbaz no. 380). This opinion came to be accepted as halakhah by the later posekim, "reason inclines to the view that whenever it is the custom to rely on speech alone, it is like the custom of sitomta" (Kesef ha-KedoshimḤm 201:1), in terms of which full recognition according to Jewish law was given to public sales (Mishpat u-Ẓedakah be-Ya'akov, no. 33), to sales on the exchanges (Resp. Maharsham, pt. 3, no. 18), and to like legal transactions customarily concluded in mere verbal manner (see Ohel Moshe pt. 2, no. 138).
In cases before the rabbinical courts in the State of Israel reliance on custom (see above) is particularly evident in the field of the modes of kinyan. In several cases acquisition by way of registration in the registry in accordance with the state law is recognized as a valid kinyan according to Jewish law, by the force of custom (see, e.g., pdr 4:81). In another leading decision it was laid down that "in our times a signed contract between purchaser and seller constitutes a kinyan by virtue of the rule of sitomta, whether relating to immovable or to movable property, since this is a trade custom" (pdr 6:216, and see also the distinction drawn with regard to the text of the contract).
the rule of minhag mevattel halakhah – in the case of local custom
Custom overrides the law even when it is not general but customary with part of the public only. Thus in talmudic law it is laid down that when a desert caravan is attacked by robbers who demand a price for the release of the travelers, each must pay according to the amount of the property he carries and not on a per capita basis; in the case where a guide is taken to avert danger to life, payment of the guide is made according to a calculation based both on the amount of property carried by each and per capita; however, "the custom of caravan travelers must not be departed from" (i.e., if the custom decrees that the participation always be according to property and not per capita, it must be followed, Tosef., bm 7:13–14; see also bk 116b; tj, bm 6:4, 11a). Similarly, it is laid down that "a shippers' custom [minhag sappanin] must not be departed from" in the case where cargo has to be jettisoned to lighten the load (Tosef., loc. cit.). Hence it follows that a local custom or trade usage overrides the halakhah for the people governed by such custom: "In matters of the civil law custom is followed, even the custom of ass drivers and shippers, for even if the strict law requires that participation must be according to money and the load carried, nevertheless the custom of ass drivers and of shippers overrides the law" (Resp. Maharik, no. 102).
Proof of the Existence of a Custom
Jewish law sets three requirements for the validity of a custom:
(1) It must be widespread over the whole country, or in the whole of a particular locality, or amidst the whole of a particular class of people, according to its purported field of operation: "In all such matters [of the financial relationship between spouses] custom is an important tenet and must be followed in deciding the law, provided, however, that the custom be widespread (pashut) over the whole country" (Yad, Ishut 23:12 and cf. with the matter of takkanah, ibid. 16:7–9). A custom which exists in most parts of a particular district must be presumed to exist in the whole of such a district (Resp. Rosh 79:4; Beit YosefḤm 42:21).
(2) A custom must be of frequent application: "It must be known that the custom is established and widespread, that the townspeople have followed it at least three times, for often the public adopt for themselves a practice to suit their immediate needs [i.e., in regard to a particular matter only] without intending to establish a custom at all" (Terumat ha-Deshen, Resp. no. 342; Resp. Maharashdam, Ḥm no. 436). The time required for the evolution of a custom depends on the nature of the matter in each case: "This matter [whether or not there was a custom to exempt the communal cantor from tax payment] is not like a custom relating to the hire of workers, which happens every day so that everyone can see what the custom is; but as regards the cantor's tax immunity, since there is only one cantor in the town, how shall the fact that tax was not demanded from one or two cantors be called a custom unless it be public knowledge in the town that cantors had been exempted there on account of local custom to exempt them" (Resp. Ribash no. 475).
(3) The custom must be clear: "The custom must be clear to exempt" (Resp. Ribash, loc. cit.). In another matter Samuel b. Moses *Medina held that the rule of custom overrides halakhah was applicable to that case, provided only that the instant custom was sufficiently clear, "there are two approaches to this matter: one according to the law of our holy Torah, the other according to the trade custom; for there is no doubt that in such matters custom is decisive, provided that the import of the custom be clear, but if there be any doubt about this then we have to revert to what is decreed by the law of the Torah" (Resp. Maharashdam, Ḥm no. 33).
Jewish law dispenses with the formality of the laws of evidence for purposes of proving the establishment of a custom – a fact that has provided custom with wide creative opportunity. Thus hearsay evidence suffices and the testimony of normally disqualified witnesses is admitted (Terumat ha-Deshen, Resp. no. 342). The wide latitude which Jewish law allows to the creative power of custom is evidenced in a decision given by the rabbinical court in the State of Israel concerning the matter of severance pay due to an employee upon his dismissal (see above). In 1945 R. Ouziel (in a responsum quoted in M. Findling, Teḥukat ha-Avodah, p. 133f.) refrained from basing the law of severance pay on the legal source of custom (relying instead on an ethical-halakhic principle: see *Ha'anakah), for the reason that a custom had no validity unless it was widespread, of frequent application, and clear: "and as far as I am aware this custom [of severance pay] is not widespread in the whole country nor of common application, but only followed in certain specific cases, and therefore the court is not ordering severance pay to be paid in terms thereof " (ibid.). A mere ten years later the rabbinical court – seeking a full legal justification for the obligation of severance pay – held: "Now that this custom has spread and become accepted in the whole country, and is popular and of common, daily application, it must be followed and the statements mentioned above (i.e., of R. Ouziel), made in the year 1945, are no longer applicable or valid because the custom has become widespread and established." Recognition of such an accelerated spread of a custom within the short period of ten years is indicative of the special readiness of Jewish law to enrich itself by means of the legal source of custom.
Custom (Minhag) and Usage (Nohag)
The customs so far discussed belong mainly to those in the category of a legal norm functioning of its own power and independently of the consent of the parties to a particular transaction. Thus, for instance, the validity of a mode of acquisition sanctioned by custom is not to be explained on the ground that the parties to a particular transaction intended, by implication, to confer legal validity thereon – since it is beyond the authority of the parties to pass on the validity of a kinyan even if they should expressly say so. In this case the new mode of acquisition draws its validity from the efficacy of custom to create new legal norms of selfstanding force. On the other hand, many customs operate in the halakhah – as in other legal systems – not from their own independent force but by virtue of a presumption that the parties intended, by implication, to introduce a particular usage as part of the transaction between themselves. An agreement between two parties is generally composed of two kinds of terms, those expressly stipulated and those imported by implication as an integral part of the agreement. Such implied terms may be inferred in two ways: either because they are decreed by factors of logic and reasonableness, or because they are usual and customary, since it may be presumed that the parties intended to include in the terms of their agreement the dictates of all the former factors (see J. Salmond, Jurisprudence (196612), 193–7). The matter may be illustrated as follows: The Mishnah (bm 9:1) lays down that a transaction of arisut or ḥakhirah (land tenancy and cultivation in return for a share of the crop, see *Lease and Hire) includes implied terms concerning cultivation of the land in accordance with local usage – keminhag ha-medinah – and that neither party to the transaction may contend, for instance, that he intended the crop to be reaped by scythe when it was local custom to reap by hand (bm 9:1). The Talmud adds that a party's plea that he had not intended to abide by local custom will not be accepted even if it is supported by circumstantial evidence, such as higher or lower rental than usual (see bm 103b), because in the absence of any express stipulation to the contrary it will be presumed that both parties intended to embrace local custom in their agreement (see also Yad, Sekhirut 8:6; Sh. Ar., Ḥm 320:4–5). Talmudic halakhah offers abundant examples, in most branches of the civil law, of usages which are imported by implication as part of the terms agreed upon between the parties to a transaction, e.g., in the laws of joint ownership (bb 1:1 and 4a; tj, bb 1:2, 12b) and partnership (bm 68b; 69b; Tosef., bm 5:6–7; tj, bm 5:6, 10b; see also Yad, Sheluḥin 5:1 and 8:4; and see Partnership); in the laws of *pledge (e.g., bm 67b–68a; Yad, Malveh 7:2–3); in the laws of master and servant (bm 7:1; bm 83a concerning the hours of work; 86a concerning the worker's sustenance; 87a concerning the worker's wages; and see *Labor Law); in the laws concerning the pecuniary relationship between spouses (see above; see also *Husband and Wife), etc. Usages of the above kind also fulfill an important role as regards the interpretation of various deeds and documents, in which local usage in the particular matter is of decisive importance (bb 166b; Yad, Malveh 27:15; and see *Interpretation).
The Rule of Doreshin Lashon Hedyot
This rule (Tosef., Ket. 4:9ff.; tj, Ket. 4:8, 28d; tj, Yev. 15:3, 14d; bm 104a) is of application in the interpretation of documents (for details, see *Interpretation). Many halakhic scholars regarded this rule as serving to give recognition to the implicit importation into the terms of a document of a usage followed by the people, on the presumption that the parties intended their transaction to be subject to such usage: "For whatever is customarily written by the people is deemed to have been written by the parties, even if they have not done so … and this is as if provided by an enactment" (tenai bet din; Resp. Rashba vol. 1, no. 662; vol. 3, nos. 17,433, et al.; this is also the view of Hai Gaon and Ramban, in Nov. Ramban, Tos., Beit ha-Beḥirah Nov. Ritba and Shitah Mekubbeẓetbm 104a; Resp. Ran no. 54; Resp. Ritba no. 53). Just as scholars saw the need in matters of marriage and ketubbah to enact essential conditions for the good of all, these being applicable, setaman ke-ferushan, i.e., binding even if not expressly stipulated between the parties – so there are matters "which the scholars did not enact and which have not been accepted by all, but are usages which have been followed by the people in certain places, simply of their own accord without [communal] enactment, and this too is a matter of setaman ke-ferushan, which the scholars refer to as derishat hedyotot" (Resp. Rashba, vol. 4, no. 186). In this sense the rule of derishat leshon hedyot served the halakhic scholars as a means of solving many legal problems relating to the laws of marriage, property, and obligations (see Resp. Rashba, Ritba, and Ran as cited above; for an interesting example in the field of obligations see Resp. Rashba, vol. 4, no. 125).
General and Local Custom
A general custom is created at the hands of the public as a whole and as such applies to the whole of that public, whereas a local custom is created at the hands of the people of a certain place, class, or some other group, and as such its application and validity is confined to the people of that place or group. Already mentioned above are the customs of various trade associations like those of shippers and caravan drivers, and the talmudic sources also mention customs relating to priests (Kid. 78b; tj, Bik. 1:5, 64a; and tj, Kid. 4:6, 66b), women (Pes. 48b; tj, Pes. 4:1, 30c), havurot in Jerusalem (Tosef., Meg. 4:10, 25c), the fair-minded (nekiyyei ha-da'at) of Jerusalem (Sanh. 30a), etc. Often a custom is referred to as minhag ha-medinah (i.e., custom of a particular area or district: bm 7:1 and 9:1; bb 1:1 and 10:1; Suk. 3:11, et al.). Sometimes a custom is quoted as followed in Judea (Tosef. Ket. 1:4, 1:5 and 4:12; bb 100b, et al.), in Galilee (Tosef. and Mishnah, ibid.), or in particular settlements, e.g., Tiberias, Acre, Kabul (tj, Pes. 4:1, 30d; tj, Ta'an. 1:6, 64c), also Jabneh, Sepphoris, etc. Such local or group customs relate to diverse fields of the halakhah, both the civil and the ritual law.
Many local customs render the law more severe by prohibiting matters which are permitted (see, e.g., Pes. 4:1–4). Thus although the law permitted the performance of all labor on the 14th day of Nisan – i.e., on the eve of Passover – it became the general custom to refrain from labor from noon onward, since from that time the paschal sacrifice could properly be brought, so that the rest of the day was treated as a festival day; the Mishnah records that there were places where it was customary to perform labor until noon, and other places where it was customary not to do so lest the need for burning the leaven and other requirements of the festival be forgotten, and the Mishnah prescribes that the local inhabitants should follow their own custom. The halakhic validity of a custom that prohibited what was legally permissible was justified by regarding this as a form of vow undertaken by the public, and the sanction against breaking such a custom as akin to that of the prohibition against breaking a vow: "Matters which are permitted [in law] but prohibited by others by virtue of their custom may not be rendered permissible to the latter, as it is said (Num. 30:3), 'he shall not break his word'" (Ned. 15a; see also Ḥ. Albeck, Shishah Sidrei Mishnah, Nashim, p. 137f.). It seems however that the Babylonian amoraim restricted the operation of the prohibition deriving from the above rule, holding it as applicable only to a custom of the Cuthites (non-Jews), or of Jews amidst whom there were no scholars – out of apprehension that if the latter persons were permitted matters which their own custom prohibited, even though these were permissible in law, they would make light also of other prohibitions stemming from the law itself (Pes. 50b–51a).
These local customs were also discussed in relation to the biblical injunction, "you shall not cut yourselves" (Deut. 14:1), interpreted by the halakhic scholars as a stringent prohibition against the formation of separate "societies" in relation to the rules of halakhah, so that the Torah "should not become like several Torot." In R. Johanan's opinion this prohibition only applied in circumstances where in one place a decision is given according to one opinion – for instance according to Bet Hillel, and in another place according to another opinion – for instance according to Bet Shammai, for in this way the halakhah itself would be divided; however, if from the standpoint of the law all decide according to the same opinion but part of the public renders the law additionally stringent for itself, this does not amount to a division of the halakhah, and it is permissible in the same way as any individual may take a vow and render prohibited for himself that which is permissible in law (tj, Pes. 4:1, 30d; Yev. 13b; see also L. Ginzberg, Perushim ve-Ḥiddushim ba-Yerushalmi, 1 (1941), 152–60). Despite this theoretical distinction, the halakhic scholars maintained that in practice the diversity of customs might lead to division and strife and therefore laid down that a person should follow no custom but that of the place where he finds himself at any given time, if to do otherwise might lead to dispute (Pes. 4:1 and 51a; Yad, Yom Tov 8:20; see also in detail Peri Hadash, oh 468 and 496).
Minhag and the Conflict of Laws (within Jewish Law)
The multiplicity of customs, particularly local customs, inevitably gave rise to the phenomenon of varying laws on the same legal subject. At times it transpired that the law on the same subject differed in different places, and in this event – when the different stages of a legal obligation required performance in different places, in each of which there prevailed a different law concerning such an obligation – there arose the question of whether to apply the customary law at the time and place of establishment of the obligation, or the customary law at the time and place of its performance, or some other law. This and like questions, relating to the field of the conflict of laws, frequently arose in many fields of Jewish law against the background of differing customs on the same subject: e.g., as regards the laws of marriage, divorce, labor, partnership, and land tenancy. The result was the evolution of a proliferous body of case law on the subject of the *conflict of laws, constituting one of the important contributions made by custom to the development and creativity of Jewish law.
Control over Minhag by the Halakhic Scholars
Custom, because of its spontaneous and undirected nature, sometimes calls for a measure of supervision and control. At times a custom may be founded on error, or develop unreasonably or illogically in a certain direction, or may even be in conflict with substantive and fundamental principles of Jewish law in a manner leaving no room for its integration into this system. From time to time the halakhic scholars exercised such control in order to contain or discredit entirely a particular custom.
custom founded on error
The Mishnah (Er. 10:10) mentions the case of a certain usage observed in Tiberias until the scholars came and set it aside; according to one opinion the usage of the people of Tiberias involved a prohibition which the scholars later permitted; according to another opinion, it involved a permission which the scholars later forbade (ibid.). Some commentators held that the usage was set aside because it was based on error (Tos. to Eruv. 101b, s.v. "R. Yose Omer"; for a further illustration, see Ḥul. 6b concerning Rabbi's permissiveness regarding the eating of untithed fruit from Beth-Shean). In the Jerusalem Talmud a rule is laid down by R. Abun that a custom founded on error may be set aside: if the custom prohibits when it is clearly known that the relevant matter is permitted in law, the custom is valid and the matter must not be rendered permissible; however, if the custom prohibits as an outcome of an erroneous belief that the relevant matter is prohibited in law, when the error is discovered, the matter may be rendered permissible and the custom discredited (tj, Pes. 4:1, 30d).
In post-talmudic literature frequent reference is made to customs discredited by the halakhic scholars on the ground of error. Thus Rabbenu Tam censured those who counted a minor as helping to make up a minyan as long as he held a Pentateuch in his hand: "This is a nonsensical custom … is a Pentateuch to be regarded as a man?" (Tos. to Ber. 48a). In another case Asher b. Jehiel examined the source of a custom concerning the testamentary disposition of property by a woman, concluding that "this is certainly an erroneous custom" and even if widespread, "it is not a custom that may properly be relied upon for purposes of the disposition of property … the custom is wrong and it must be invalidated" (Resp. Rosh 55:10). Similarly Mordecai *Jaffe opposed the custom of not reciting birkat ha-mazon (*Grace after Meals) in the home of a gentile, holding that the spread of "this nonsensical custom" originated from an erroneous understanding of a talmudic statement completely unconnected with such a custom (Levush ha-Tekhelet, 193:6). In another instance it became customary to take a stringent view and regard a woman as married in circumstances where – in the opinion of all scholars – there was no kiddushin at all in law; Simeon Duran strongly condemned this custom: "In circumstances where the whole world holds that there is no kiddushin, some people wish to impose on themselves such a stringent rendering of the law – this is a custom born in ignorance which the public must not be compelled to uphold" (Tashbeẓ, 1:154).
unreasonable or illogical custom
At times the scholars examined a custom from the aspect of its reasonableness. Thus it was determined that a custom of the women not to do any work during the whole of the evening following the Sabbath was unreasonable and of no validity except insofar as it was restricted to the time of prayer on that evening (tj, Pes. 4:1, 30d; Ta'an. 1:6, 64c); similarly invalid was a custom of the women not to do any work on Mondays and Thursdays, but their custom to do no work on a public fast-day or on Rosh Hodesh was reasonable and proper (ibid.). Some customs were condemned as imposing hardship on the public and contrary to the purpose of the actual law concerned. Thus the custom of those who prepared grits in Sepphoris and of the crushers of wheat in Acre not to work on ḥol ha-mo'ed was held to be a good custom since it was not likely to detract from the joy of the festival; however, the custom of the fishermen of Tiberias not to work on ḥol ha-mo'ed was opposed by the scholars, since it was impossible to prepare in advance fresh fish for the whole festival, and the custom was therefore likely to detract from the joy of the festival (tj,ibid.).
bad custom
In post-talmudic times there was disputed the question of the extent to which a custom concerning a matter of civil law had to be accepted even when it appeared to be a "bad custom." On the dispute over a custom concerning the erection of a partition between two joint holders so that one might not observe the other (see below), Rabbenu Tam held that a custom of erecting a partition which fell short of the talmudic requirements was a bad custom and was not to be followed: "it may be concluded that some customs are not to be relied upon, even though it has been said, 'all in accordance with custom'" (Tos. to bb 2a). This opinion was followed by many scholars but others held that in civil law matters even a custom of this kind had to be followed when locally accepted (see Piskei ha-Rosh bb 1:1 and 5; Tur, Ḥm 157:3–4, 16; Sh. Ar., Ḥm 157:1 and commentaries; Haggahot Maimuniyyot, Shekhenim 2:20; Mordekhai, bm no. 366). Even those who took the former view conceded that in certain matters even a bad custom had to be followed – for instance in tax matters – if it was necessary for the good order of the public (Terumat ha-Deshen, Resp. no. 342; Sh. Ar., Ḥm 163:3, Rema and commentaries).
custom contrary to fundamental rules and the principles of equity and justice
The halakhic scholars were also at pains to ensure that custom did not controvert basic general rules as well as the principles of equity and justice in Jewish law. In so doing they rendered possible the integration of legal norms originating from custom into the general framework of the law, in the same way as their similar close control over communal enactments (see Takkanot ha-Kahal) rendered possible their integration. The matter is illustrated by the following examples:
(1) When Asher b. Jehiel decided that the custom of closing a transaction by verbal agreement alone controverted the basic rule requiring demonstration of the absolute gemirut ha-da'at of the parties to a transaction, he laid down that this amounted to a bad custom which was not to be followed (see above).
(2) In law, on division of a courtyard between joint owners, "a partition must be built by both of them in the middle, so that neither may observe his neighbor in the enjoyment of his portions, since the injury of being observed is a real injury" (Yad, Shekhenim 2:14, based on bb 3a); the width of the partition is determined by local custom "even when the custom is to build the partition of reeds and palm fronds" (bb 4a; Yad, Shekhenim 2:15). In this regard, Rashba decided that a custom not to erect any partition at all – leaving each neighbor free to observe the other – was of no legal validity, so that either partner could oblige the other to erect the partition: "If it has been the custom, as regards houses and courtyards, not to pay heed at all to the injury of observing one's neighbor, the custom is a bad one and no custom at all; for waiver may only be made in matters of civil law in which event a person may give of his own or tolerate damage to his property, but he is not free to breach the fences of Israel and to act immodestly in a manner causing the Divine Presence [Shekhinah] to depart from this people, as it is said, 'a person shall not make his windows to open onto his joint owner's courtyard' (bb 3:7) … Scripture relates, 'And Balaam lifted up his eyes, and he saw Israel abiding in his tents according to their tribes' (Num. 24:2). What did he see? That the openings to their tents were not made to face each other, and he said, 'These are worthy that the Divine Presence abide with them'" (bb 60a; Resp. Rashba, vol. 2, no. 268). Thus the custom in question stood in conflict with a material tract of the halakhah and could be given no legal recognition.
(3) A custom may not conflict with the Jewish law principles of justice and equity. Hence even in cases where a bad custom is given legal recognition, as in tax matters (see above), some way must be found for anchoring it within the general spirit of the halakhah. Hence a tax custom which did not adequately distinguish between rich and poor was held to have no legal validity: "The contention of the rich has no justification, for certainly according to the law of the Torah taxes must be shared according to financial means and there can be no greater injustice than to make the rich and the poor bear the tax burden in virtually equal measure, and even if the custom has been in existence for some years it must not be upheld" (Moses Rothenburg, quoted in Pitḥei Teshuvah, Ḥm 163, n. 16).
[Menachem Elon]
bibliography:
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