When Minhag Trumps Halacha

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  • #617634

    flatbusher
    Participant

    This is a spinoff of a different thread, but my question is why is Minhag allowed to trump halachah and who let it happen? I will mention just one example where the Mishneh Berurah states the Shulchan Aruch says to say Hallel on the first night of Pesach but then Rama says but Ashkenaz custom is not to say but nusach Sfard is. So, what’s the deal?

    #1180393

    ☕ DaasYochid ☕
    Participant

    It doesn’t.

    The halachah is that you’re allowed to say a brachah for a minhag (e.g. Hallel, menorah in shul).

    #1180394

    Joseph
    Participant

    When the Rema differs from the S”A, it usually means the Rema holds the halacha differently than the Mechaber.

    #1180395

    flatbusher
    Participant

    Why should there be different halacha?

    #1180396

    Neville ChaimBerlin
    Participant

    When I saw this thread title I knew you were going to have commented, DY. I’ve seen you correct this misconception on so many CR threads before.

    #1180397

    benignuman
    Participant

    The statement that a minhag trumps halacha is a bit misleading. Where there are multiple legitimate halachic positions and there is a minhag comports with one of them, we will follow the minhag, even if the majority position is against the minhag.

    In other words, a minhag without any halachic support is a minhag shtus or minhag taus. A minhag with halachic support, however, can override the normal klalei horaah and the halacha would follow the minhag.

    #1180398

    Joseph
    Participant

    Flatbusher, there are frequently machlokes’ what the halacha is, with some shittas saying one way and other shittas saying the other way. Sometimes it is a difference between Sephardim and Ashkenazim (i.e. Shulchan Aruch and Rema) and other times there are differences even within Sephardim or Ashkenazim. And different communities may hold differently from each other. It’s been like this since the era of the Tanaaim.

    #1180399

    “When Minhag Trumps Halacha”

    You call Donald Trump to Trump it up lol

    Have a gut Yom Tov

    #1180400

    Avi K
    Participant

    This almost always occurs in monetary matters. In other areas the psokim attempt to show that really the minhag is in consonance with the Halacha. The reason is that a person’s money is his. He has the right to give it away if he wishes. This is extended to communities. By being part of a community one accepts monetary obligations enacted by that community.

    #1180401

    ☕ DaasYochid ☕
    Participant

    The statement that a minhag trumps halacha is a bit misleading.

    It’s not only misleading, it is dangerous. It allows people to think chas v’shalom that halachah can be violated at whim, as long as it’s called a minhag.

    #1180402

    Avi K
    Participant

    DY, if you rearrange the letters of ????? you get ?????. Learn

    “???? ?????” with mefarshim.

    #1180403

    imarks
    Member

    Halacha says one must pay back a loan…

    The Minhag though, is not to…

    #1180404

    mik5
    Participant

    nittel nacht is a minhag that trumps the biblical obligation to learn Torah.

    In Lubavitch the minhag is to recite all the morning benedictions, with exception of Asher Yatzar, even if one did not sleep at night, although it says in Shulchan Aruch not like this.

    halacha says you have to sleep in the sukkah, but the minhag is….

    halacha says you should ideally wash for shalosh seudos, but the minhag in lubavitch is…. (with exception of yesterday, where the minhag was to wash for the Moshiach seuda).

    #1180406

    lakewoodwife
    Member

    We keep the minhag to ‘klap’ by Haman during megilla even though the Halacha is you cannot have an interruption during the megilla leining.

    When a minhag has a mekor (a valid source) then it can even override a halacha.

    #1180407

    ☕ DaasYochid ☕
    Participant

    If it were k’neged halachah, it wouldn’t have a valid mekor.

    The klapping is not considered a hefsek.

    #1180408

    Neville ChaimBerlin
    Participant

    There are no real examples of “minhag trumping halachah.” I wish people would stop trying to invent them here.

    Mik:

    Those who don’t learn Torah on nittel nacht still say the Shema and are technically learning Torah (if it really “trumped halachah” then they wouldn’t even do this).

    About the brachas hashachar, perhaps the Shulchan Aruch HaRav says otherwise?

    The Sukkah thing is interesting. I noticed that in the Kitzur he says that people started neglecting to sleep in the Sukkah, so poskim used a technicality of say it’s mutar so that there wouldn’t be so many people blatantly violating halachah. I assume this is where that minhag came from.

    Washing for seudah shlishi is not, by any stretch of the imagination, “halachic.”

    #1180409

    Avi K
    Participant

    Mik,

    1. Who says that it is a good minhag in our day? It originated because Jews were afraid to go outside on that night as Xtians got drunk after hearing fiery anti-Semitic sermons and they were too poor to have sefarim in their homes.

    2. Someone who is mitzta’er is halachically exempt from sleeping in the sukka. This is, of course, subjective. I heard that they are mitzta’er because they cannot feel the or makif (@Neville).

    3. You yourself wrote that this is only the ideal. However, it is legitimate not to do so. This is why someone who forgets “retzeh” in birkat hamazon does not have to go back.

    #1180410

    Geordie613
    Participant

    I just learned the gemorah in Taanis 26b this morning, concerning Birkas Cohanim at Mincha and neilah on a taanis. There are 3 opinions, but the conclusion of the gemorah is a little tricky.

    There is ‘Halocho’ like one opinion, then there is ‘Minhag’ like another and ‘Nohagu’ like a different way.

    The explanation in short is, that even though the strict method of halachic interpretation points to one opinion, the minhag is like a second opinion. That means the way people should act in regard to this din. The gemorah says “?????? ??????” that we instruct people this way if they come and ask. Nevertheless, the people act in a different way if they don’t ask.

    It seems the correct way is the ‘Minhag’ i.e. that which we are told when we ask our Rabbis, even though it may be different to the strict ‘Halocho’.

    #1180411

    Geordie613
    Participant

    In a slightly different twist, I once heard it said that the Mishnah Brura was written for Baalei Tshuva and geirim. What this means is, that a minhag (obviously with a solid mesorah) overrules the halocho. Someone who doesn’t have a mesorah to act according to a particular minhag will follow the halocho as paskened in mishna brura.

    Please forgive me if that sounds offensive to anyone. The intention is as an anecdote by way of explaining a concept.

    #1180412

    Geordie613
    Participant

    Regarding Mik5, and the Chabad minhagim:

    The Alter Rebbe holds that birchos hashachar are said on the concept of what they refer to, not on my having experienced that benefit. To illustrate; I say Hamaavir Shaina, to thank Hashem for waking me up generally every day, not that I was asleep last night and He woke me up today.

    Therefore Minhag Chabad is to say these brochos whether or not they apply to me today. I have heard Rabonim rely on this psak in case of doubt.

    Lubavitchers eat in the sukkah in the rain but don’t sleep in the sukkah. I believe this was the hanhogoh of the Rebbes (which as Chassidim will be relied on), but if anyone knows differently please let me know.

    #1180413

    ☕ DaasYochid ☕
    Participant

    Avi K, I once asked a Lubavicher chossid if he’s really mitztaer. He responded that he’s mitztaer that he’s not mitztaer. I told him he can do that in the succah.

    The point remains that even they don’t believe minhag trumps halachah; they think it is correct l’halachah.

    #1180414

    Abba_S
    Participant

    I always had this question for example, the The Alter Rebbi’s Shulcan Orach says you are suppose to wear Tiffilon on Chol Ha Moaide while no Lubavichers that I know do. If anyone knows the reason please let me know.

    #1180415

    Sam2
    Participant

    mik5: The Rema says (implies) that you can make the Brachos even if you didn’t sleep.

    #1180416

    Avi K
    Participant

    DY, ask him if you can be exempt as when you are in the sukka you are thinking of his attitude and that makes you mitztaer. Ask him also how a Chassid can be mitztaer when he is supposed to always be b’simcha.

    Abba, this is his exact wording:

    ? ?? ?????? ????? ?? ????? ????? ????? ??? ???? ????? ??????? ??? ??????

    ?? ??? ????? ???? ?? ?????? ???? ???? ?????? ?? ???? ????? ????? ???

    ???? ???? ????? ?????

    ??? ?????? ????? ??? ????? ????? ????? ???? ????? ??? ????? ?????

    ?????? ?? ????? ???? ????????

    ??? ?????? ??? ?????? ???? ?????? ????? ????? ????? ??? ???? ?????? ????? ????

    ????? ???? ?? ??? ???? ???? ???? ?????? ??? ??? ??? ????? ???? ????

    ??? ??”? ???? ???? ?? ?????? ???? ????? ??? ???? ????? ???? ???? ???? ?????

    ??? ??? ??? ???? ??????? ??? ??? ???????.

    ??? ?? ?????? ??? ???? ??? ??? ???? ?? ??? ????? ???? ?????? ????

    ??????.

    It comes out that he does not explicitly say to wear them, only that that was the custom in his area. Rabbi Menachem Posner, the Staff Editor of chabad.org says that their minhag is not to wear them on Chol HaMoed. You can ask him about it yourself.

    #1180417

    lakewoodwife
    Member

    DY- A hefsek of time is also considered a hefsek. The klapping is definitely a halachik hefsek. My husband is a Baal Koreh. He told me that the Mogen Avrom discusses this issue in the halachos of krias hamegilla (He’s not near his sefer right now so he couldn’t give me the exact location).

    #1180418

    ☕ DaasYochid ☕
    Participant

    Lakewoodwife, I will bl”n research it.

    I have seen it done in places where the rav has told people to abandon minhagim which are clearly against halachah, so I’m confident that there is halachic justification.

    #1180419

    zogt_besser
    Participant

    The Pri Megadim (O.C. 690:21) says klapping for Haman is a hefsek, and discourages it for that reason. Interestingly, no other major acharonim agree. An online article I saw suggests that since klapping is a kiyum of timcheh es zeicher amalek/shem rishaim yirkav, the concern of hefsek is irrelevant.

    #1180420

    ☕ DaasYochid ☕
    Participant
    #1180421

    ☕ DaasYochid ☕
    Participant

    And here is the Mogen Avraham

    http://beta.hebrewbooks.org/tursa.aspx?a=oc_x3070

    who is explaining the concept of ???? ???? ???? almost precisely as Benignuman said.

    #1180422

    Sam2
    Participant

    DY and Benig: The concept of ???? ???? ???? actually made sense in the times of the Geonim when there were still some more or less oral traditions from the time of the Amoraim. Maybe this barely continued into the early Rishonim. Nowadays, though, the phrase really makes no sense.

    #1180423

    ubiquitin
    Participant

    I’m a little confused by this conversation.

    Dy perhaps you (or anybody else) can help.

    It seems to me that by definition any minhag practiced by frum Jews has some rabbinic backing, including many brought above (banging by haman, not washing for shalsoh seudos not sleeping in sukkah etc) If there is no “justification” then a forced one is brought or a daas yachid is relied upon.

    What is an example of a minhag with NO halachic support about which the expression “minhag trumps halacha” or “minhag brecht a din” would be (wrongly) applied.

    DY the reason I singled you out is this line “where the rav has told people to abandon minhagim which are clearly against halachah,” do you (or anybody else) mind listing these minhagim?

    #1180424

    ☕ DaasYochid ☕
    Participant

    Ubiquitin, it is well known that Litvish gedolim have told people to eat in the succah on Shmini Atzeres.

    It is also well known that many great Chassidish Rebbe’s who were talmidei chachomim didn’t, and to be dan l’kaf z’chus, even if we don’t understand it, we assume that they must have had halachic justification.

    Nevertheless, that is an example where poskim have said to abandon a minhag because it can’t override halachah.

    Sam, did you see the M”A I linked?

    #1180425

    ubiquitin
    Participant

    Thanks

    DY

    I was actually thinking of that example. But dismissed it since in my view there is legitimate backing to avoid eating (I actually have a hard time understanding the heter to eat in the sukkah on shemini atzeres

    but dont want to hijack this thread).

    I did not know Litvish gedolim advised people to eat in sukkah, so that is a decent example, yet you ruin it with “It is also well known that many great Chassidish Rebbe’s who were talmidei chachomim didn’t, and to be dan l’kaf z’chus, even if we don’t understand it, we assume that they must have had halachic justification.”

    So in that example. Given that my family doesnt eat in the sukkah on shemnini atzeres, are you saying I should eat in the sukkah?

    Do you have any other examples? preferably without a caveat allowing for the “minhag to trump halacha”

    #1180426

    zogt_besser
    Participant

    I think it’s important for people to realize the theological significance of what DY is saying about minhagim. The idea that “we assume that they must have had halachic justification” isn’t just some lame post-hoc excuse. Rather, it’s a very ancient feature of the system. Even in the gemara, we have amoraim saying “puk chazi” to decide halacha. Moreover, there is a concept of “im lo neviim hem, bnei neviim hem,” which establishes Bnei Yisroel’s credentials to create minhagim, and for rabbonim to assume that what they practice is right. Even the gezeiros of the sanhedrin have to be accepted by the am, and if most people find a gezeirah too hard, it is annulled! All of these principles (and more) clarify that being melamed zechus on minhagim isn’t just intellectual laziness, but a function of our kedushas yisrael and a very ancient feature of the system.

    #1180427

    ☕ DaasYochid ☕
    Participant

    So in that example. Given that my family doesnt eat in the sukkah on shemnini atzeres, are you saying I should eat in the sukkah?

    Who cares what I would say? I know of two people who were told by two different Litvish roshei yeshiva to do so, and yes, if somehow I were in the position to tell people what to do, that’s what I would say (but I don’t look negatively at someone who doesn’t, although I tease some of my friends about it).

    Off the top of my head, I can’t think of any other widespread minhagim that way.

    #1180428

    frumnotyeshivish
    Participant

    I watch people trying to say that the halacha is that minhag trumps halacha. My minhag says not like that.

    Minhag simply means what was/is done.

    Halacha is the application of God’s law to our actions.

    God wins all conflicts, obviously.

    If a person family or place accepted upon themselves to go above but not beyond the requirements of Halacha, it can obtain a neder-like obligation.

    The importance of minhag comes most into play imho when dealing with new “chumros.” Aside from the fact that nearly every theoretical construct can have stringent and lenient applications, causing people to play both sides of the fence in an inherently intellectually dishonest way, it may call into doubt age-old previously unquestioned behaviors. Hotzaas laaz is serious business indeed.

    As far as silly minhagim to avoid chometz, my minhag is to pretend like they are important as a symbolic representation of avoiding the yetzer hara at all costs. Provided it doesn’t violate halacha and/or perpetuate sadly prevalent mental illnesses.

    Because again, God always wins. I attempt to humbly seek God through his Torah. I believe this is the purpose of existence. It seems to me that there are people so focused on things in the name of “Judaism” which draw themselves and others away from God. Do they have good intentions? Perhaps. Some of them.But the road to gihennom is paved with good intentions.

    I end with my favorite quote from a brilliant anti-semite:

    “And thus I clothe my naked villany

    With odd old ends stol’n out of holy writ,And seem a saint, when most I play the devil.” — Shakespeare. Good night folks. I likely wont be around to respond. And if you (the reader) are offended, remember that I meant to personally attack you, obviously. Because I’m discussing people, not ideas. And never forget: there’s no such thing as denial.

    #1180429

    Neville ChaimBerlin
    Participant

    Most do not sleep in the Sukkah on Shmini Atzeres because of concern that it would get in the way of enjoying the holiday which is technically a new holiday.

    Some people do not eat in it during the night of Smini Atzeres but do during the day for the same rationale.

    Some don’t all day for the same reasons.

    An example that I’m surprised hasn’t come up yet for you, Ubi: Some people (namely Chasidim) are strict to never clap for applause on Shabbos, but when davening or singing Shabbos zmiros, it suddenly becomes magically mutar to clap and bang on tables. The Chazon Ish himself apparently denounced this one. I’ve never understood how this could have a halachic basis, but like DY said, we have to assume it does. If anyone knows the explanation I would be really interested to hear it.

    #1180430

    Joseph
    Participant

    I think Rav Moshe has a psak about people davening Nusach Sefard should change to Nusach Ashkenaz (but not vice versa.)

    #1180431

    ☕ DaasYochid ☕
    Participant
    #1180432

    Sam2
    Participant

    DY: Of course. But it’s self-contradictory to not clap. That was his point.

    #1180433

    ☕ DaasYochid ☕
    Participant

    You mean for applause?

    #1180434

    ubiquitin
    Participant

    DY

    “Who cares what I would say?”

    Me! Dont sell yourself short I value your opinion (even if your wrong most of the time 🙂 .

    Thanks for the reply and Joseph your example is a good one too thanks.

    Bottom line is I guess I misunderstood the point of the thread.

    I imagined it went like this

    Guy 1 “why are you doing [fill in the blank] it is keneged halacha?”

    Guy 2 “Oh it is my minhag and “minhag trumps halacha”

    DY “It doesn’t.”

    the reality is that in (virtually?) every case, even the decent examples provided by you and Joseph, those following their minhag (not eating in sukkah on shemini atzeres or davening sefard) aren’t blindly violating halacha because “minhag trumps halacha” What they mean is they are relying on the shitos that allow those practices (And there were/are gedolei olam who did both) since it is their minhag even if most poskim, and perhaps the strict interpretation of halacha disagree. Which is correct behavior as I understand the M”A you provided.

    So minhag DOES trump halacha. In the sense that since my family minhag is not to eat in the sukkah and to daven sefard I dont follow R’ Moshe as I might generally but rather follow the minority poskim/gedolim and continue my minhag.

    #1180435

    Here’s an example – On tisha b’av there’s a minhag to say 3 parshiyos of shema after mincha while wearing tefilin, since during shachris while shema is recited, it was done w/o tefilin. The mishna berura says NOT to say shema since the mitzva of krias shema was already fulfilled, saying it now would be in the category of limud hatorah. A rov who is the son of a godol beyisroel was consulted. The response was to follow the minhag of saying shema.

    #1180436

    Neville ChaimBerlin
    Participant

    “Guy 1 “why are you doing [fill in the blank] it is keneged halacha?”

    Guy 2 “Oh it is my minhag and “minhag trumps halacha”

    DY “It doesn’t.””

    I love this. This exact conversation has happened so many times in the CR.

    Ubi, I think you have it pretty much right. But, don’t ever say “minhag trumps halachah” out of context. I think R’ Moshe was talking about the Litvaks who otherwise follow Ashkenzi, non-Chassidishe minhagim with the Nusach Sphard thing as a matter of being consistent. He had to know his rulings mean nothing to actual Chassidim, but might mean something to Litvaks who have adopted some Chassidish minhagim like Nusach Sphard because they like it of whatever.

    DY: Could you elaborate on the clapping thing at all? I’ve noticed that Sphardim tend to clap backhandedly on Shabbos to show a difference while Litvaks don’t tend to clap at all (especially not during davening). Are you saying the Rema is the source for the clap-only-during-davening? Or that he said it’s mutar to clap whenever you want on Shabbos?

    #1180437

    ubiquitin
    Participant

    NC

    Even if R’ Moshe did mean chasidim should change, we don’t follow that.

    what I mean is we all recognize certain leeway (for lack of a better word) within the halachic process. As long as the rules are followed even if different conclusions are reached all are valid within a certain framework.

    For example if you were to ask r” Moshe regarding carrying in Brooklyn he would say no. However we (collectively) still allow those who follow R” Menashe Klein or Ybcl”c R’ Yechezkel Roth to follow their psak and carry.

    So even if R’ Moshe did mean that all chasidim should abandon nusach Sefard (I haven’t seen the teshuva recently I think the mashmaos was he did feel that way) and even if the two Roshei Yeshiva DID mean that all should eat in the sukka on shemini atzeres, we (again collectively) allow for those with a different minhag to “trump halacha” again, within the framework laid out by the M”A cited by DY earlier. As DY said “but I don’t look negatively at someone who doesn’t” He and I assume all of us allow for these variances within a certain framework.

    Obvoiously if someone had a minhag to bow down to yushke (or to bake a loaf of bread with a cross or cross shaped object that’s a inyanei diyoma joke, I have such a minhag)when pointing out that it is kineged halacha “minhag trumps halacha” is not a valid response.

    however in all the examples cited in the thread including davening nusach sefard, not eating in sukkah, klapping by haman, not learning by nittel etc etc, minhag DOES override halacha within a certain framework

    #1180438

    ☕ DaasYochid ☕
    Participant

    Ubiquitin, I don’t agree with all of your examples. Eruv is a pure halachic shailah, and FWIW, some well known poskim completely rejectct the validity of the eruv no matter what your rav says.

    Similarly, I think eating in the house is an absolute no-no, it’s just that I can’t argue with the process of following rebbeim (maaseh rav) against the Shulchan Aruch when those rebbeim clearly believe in following halachah 100%; it’s the specific application I’m arguing with. Hence, I can fully respect that the person thinks they are following halachah while at the samextime thinking they are wrong.

    Again, the reason talmidim were told to sit in the succah is that not doing so is a mistake in halachah (see Aruch Hashulchan for a strong possibility for how that mistake happened) and the fact that it’s the family minhag doesn’t mean a thing against a clear halachah.

    I think everyone agrees that minhag doesn’t trump halachah, the disagreement is about what suffices to allow the assumption that the minhag is in accordance with the halachah.

    #1180439

    ☕ DaasYochid ☕
    Participant

    NC, I have seen some who don’t clap at all, and some who do with a shinui.

    Perhaps there are those who mistakenly sometimes do and sometimes don’t clap with no significant halachic chilluk; that’s a mistake.

    My point is that the R’ma was moreh heter for those who do clap, because they have a Tosafos to rely on (those who don’t clap hold its a shver’e. Tosafos which we don’t pasken like). Those who do dance and clap don’t hold that their minhag trumps halachah; they hold it’s muttar l’halachah (it was once explained to me that chassidim hold you’re allowed to follow a daas yochid b’sha’as had’chak, and dancing on Shabbos is considered a sha’as had’chak. Perhaps those with seemingly contradictory conduct hold when it’s not the purpose of dancing, it’s not a sha’as had’chak).

    #1180440

    Neville ChaimBerlin
    Participant

    Oh I wasn’t accusing anyone of having a minhag that trumps halachah. I just think the clapping one is a tough to understand one kind of like not eating in the Sukkah. I’ve heard the argument for clapping only while dancing on Shabbos like the Chasidim, but that seemed like more of an explanation rather than an actual halachic justification to me if you follow me. I wondered if maybe they consider the dancing and zmiros singing to be their form of a shinui so to speak.

    Does the Rema actually fully allow clapping however and whenever? Or, is it more like “if someone claps because they don’t know better, they can rely on this tosafos. If you know better, then you shouldn’t clap.”

    #1180441

    ☕ DaasYochid ☕
    Participant

    Does the Rema actually fully allow clapping however and whenever? Or, is it more like “if someone claps because they don’t know better, they can rely on this tosafos. If you know better, then you shouldn’t clap.”

    It seems that latter.

    #1180442

    Sam2
    Participant

    DY: Yes, I meant for applause.

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