Sources:
[1]
Behold, similar to your question, I too was uncertain when I wrote in my small work Choshen Shmuel an examination of the law of the kinyan of situmta. It occurred to me that, seemingly, since this kinyan changes and is renewed in every generation according to the custom of the merchants in its particular place and time, and only its consequence may have practical ramifications for Torah law (such as regarding theft, or where “lachem”—“yours”—is required, and the like), then engaging in the details of the forms of acquisition (as recorded by the Rosh and the Tur in Choshen Mishpat, siman 201) does not fulfill the mitzvah of Torah study.
For granted, regarding the types of kinyanim learned from the Torah, by engaging in the details of the form of acquisition one interprets the Scriptural verses and the tradition transmitted to us, person to person, from Chazal back to Moshe Rabbeinu. This is not so with the kinyan of situmta, whose details seemingly have no essential basis in the Torah; rather, they change and are renewed according to the customs even of the nations of the world (at least once Jews also practice them; see Genzei Chaim Palagi, ma’arechet tav, entry Tekiat Kaf, and Netivot Yehudah Itach, end of siman 45).
Go and see the Aruch HaShulchan (Orach Chaim, siman 47, סעיף 8), who cites what the disciples of Rabbeinu Yonah wrote (Berachot 11): the reason one recites Birkot HaTorah over the Mishnah is because the Mishnah explains the reasons for the mitzvot. Rabbi Elazar said that one must also recite a blessing over Gemara, because the Talmud explains the essential meaning of the verses. The conclusion is that one must also recite a blessing over Midrash, because in Midrash one likewise derives from verses through kal va-chomer, gezeirah shavah, and the hermeneutical principles through which the Torah is expounded. He wrote that according to this, it would appear that the obligation applies only to matters that explain Torah laws, whereas Aggadah or Kabbalah, whose essence is not laws and halachot, do not require a blessing. However, if the reason is that everything was given to Moshe at Sinai (the Gra”z), or because all of it is called Torah (Levush), then certainly Aggadah and Kabbalah too were given to Moshe at Sinai and are called Torah. Yet this does not seem to emerge from the wording of the disciples of Rabbeinu Yonah, and the practical ruling requires further analysis. These are his words.
In our case, seemingly, even according to the Gra”z and the Levush this would not help, for it is difficult to say that the forms of acquisition were given to Moshe at Sinai, since they are renewed in every generation and place, including through the nations of the world. How, then, can engagement in these new details be considered and called Torah—at least regarding Birkot HaTorah?
Even regarding the laws of derech eretz, concerning which we have an organized Mishnah from Chazal, the Bach wrote (Orach Chaim, siman 102) that one who engages in the laws of derech eretz is not called one engaged in Torah, as is evident in the chapter Mi Shemeto (Berachot 20). Many later authorities cite this. (There are further such discussions among later authorities concerning Masechet Derech Eretz and various subjects; see Piskei Teshuvot, vol. 5, 5779 edition, siman 470, note 65. This is not the place to elaborate.)
It is also known that Rabbi Aharon Leib Shteinman zt”l maintained that one who engages in the laws of a rabbinic mitzvah does not thereby fulfill the Torah-level mitzvah of Torah study. Thus, one who studies Masechet Eruvin, whose laws are mostly rabbinic, receives reward only for a rabbinic mitzvah. He held that this is evident from the Rema (Yoreh De’ah, siman 246:5). Rabbi Chaim Kanievsky also agreed with this. Therefore, Rabbi Yitzchak Zev Soloveitchik of Brisk would endeavor to study primarily matters of Kodashim, since all its laws are Torah-level. This is cited at great length at the end of the Ayal Ta’arog journal (Parashat Naso–Shavuot 5776), where they discuss and refine this based on the words of early and later authorities. See there. See also BeZot Tivacheinu (p. 313), and at the end of the Meriach Nichoach journal (no. 710)[1].
[2]
Additionally, even regarding other kinyanim, Ruth Rabbah (2:14) states: Rabbi Zeira said, “This scroll contains neither tumah nor taharah, neither prohibition nor permission. Why, then, was it written? To teach you how great is the reward of those who perform acts of kindness.”
Seemingly, many laws of kinyanim are derived from this scroll. This indicates that they are not on the same level as the other laws of prohibition and permission in the Torah.
However, I saw in Aryeh Sha’ag (p. 142) that Rabbi Chaim Kanievsky was asked about this Midrash: it requires explanation, since many laws of conversion and kinyanim are derived from this scroll. He answered: “That is incidental.”
[See also Reshimot Shiurim of Rabbi Joseph B. Soloveitchik (Masechet Yevamot 45b, letter 4), who likewise wrote that this is puzzling, for all the laws of conversion are derived from Megillat Ruth. See there what he wrote on this.]
[3]
However, I was somewhat reassured by what is written in Responsa Devar Avraham (vol. 1, siman 1): “For the entire basis of the custom concerning kinyanim of chalifin is derived by us from it.” See there. Accordingly, this is somewhat understandable, for engaging in the clarification of the customs of kinyanim broadens the fulfillment of what is written, “And this was formerly the practice in Israel,” etc., from which we likewise derive chalifin, based on the custom of their time through which they validated every matter. [However, if this is the reason, one could say that regarding studying the parameters of “the custom of the land,” it is ultimately not Torah study. See further below.]
Especially according to what is written in Sefer HaChinuch (Parashat Behar, mitzvah 336): “There is no doubt that all these acquisitions are rabbinic enactments, and the verses were brought as support for their words. The truth is that their precious wisdom, destined to be revealed through them, was alluded to and concealed within the verses. Although the primary meaning of the verses is not those supports, they are nevertheless derived from them.” These are his words. Thus, even regarding all the other kinyanim derived in the Talmud from verses, he maintains that Chazal merely found support in them for their reasoning. [Indeed, see Minchat Chinuch there, who writes that he does not know the source for this. See there.] Necessarily, this is because he holds that the Torah basis of what effects acquisition is gemirat da’at—firm intent (see what I wrote in the preceding discussion, section 10)—and Chazal explained what brings about gemirat da’at in the various forms of acquisition for which they found support in Scripture. Thus, they interpreted and expounded the verses, and this constitutes Torah teachings. (This is also written in Kovetz Beit Aharon VeYisrael 128, p. 67.)
[I subsequently saw the wonderful words of Rabbi Yechezkel Abramsky zt”l in his pamphlet Dinei Mamonot (p. 9), where he wrote in his golden language: “The validity of acts of acquisition was confirmed by merchant custom. They themselves initially instituted them as a sign and proof that the business transaction had reached its conclusion, and that the item sold was henceforth definitively the buyer’s. Those actions which people instituted as an effective force in transferring property from one person to another, Halachah established as a legal act of acquisition, after which nothing remains to be done, etc. The most significant kinyanim begin as custom and end as Halachah. In this field, custom and law have an internal fusion, and every act of acquisition that merchants have upheld as a binding commitment is a statute in Israel and judgment in Yaakov, etc. Many customary social modes of acquisition have had the stamp of Halachah impressed upon them by Jewish law, which empowered them with the full force of law as though they had been written in the Torah. This is because all acts of acquisition are merely the supreme expression of the negotiations and the conclusion of the matters discussed between the parties—that everything between them has been completed and finalized. This is what Rav Pappi said in the name of Rava: ‘This situmta effects acquisition,’ etc. The entire essence of an act of acquisition is only that it is an external sign of that inner will and an expression of the seller’s and buyer’s, giver’s and recipient’s final resolve, bringing it from potential into actuality, etc.” These are his words.]
Accordingly, the same may be said regarding situmta: its essence is gemirat da’at, and engaging in the clarification of its details is an interpretation and expansion of what is written, “to validate every matter.”
Indeed, according to the Chinuch himself, it may be said that engaging in this is an interpretation of the mitzvah, “And if you sell something to your fellow or buy from your fellow” (Vayikra 25:14). At the beginning of his discussion there, the Chinuch writes that this is the mitzvah to administer justice between buyer and seller: we must judge according to the laws of commerce as the Torah commanded—that is, there are circumstances in which a sale is valid between seller and buyer, and circumstances in which it is not valid, and we are obligated to judge between them in accordance with the Torah’s command. [At the conclusion of the mitzvah, he wrote: “It applies in every place and at all times to males, for they are charged with administering justice. A beit din that transgresses this and judges between seller and buyer contrary to the law commanded in this regard by our perfect Torah has neglected this positive mitzvah.” These are his words.]
Perhaps all this led Chazal to expound the verse, “from the morning until the evening” (Shemot 18:13): “Is it possible to say so? Rather, every judge who renders a judgment of absolute truth, even for one hour, Scripture considers him as though he engaged in Torah all day, and as though he became a partner with the Holy One, blessed be He, in the work of Creation.” This is Rashi’s wording in his commentary on that verse. See Shabbat 10a.
I have just seen in She’elat Rav (vol. 1, p. 12) that Rabbi Chaim Kanievsky was asked: When there is a din Torah and, as a result, the dayan investigates the custom of the land—even that of non-Jews—does he fulfill the mitzvah of Torah study through this investigation? He answered: “Yes.”
[He further answered that even what is cited in the Gemara as “This is what people say” is all considered Torah. Indeed, we have already found in the words of the gaon Rabbi Tzadok HaKohen of Lublin, in Dover Tzedek (p. 188), who wrote: “We find many popular sayings in the Gemara. Since they were recorded in the Gemara, they are certainly complete Torah teachings. At the end of Moed Katan (28b), there are sayings of the women of Shechantziv (where scoffers were common, as stated in Pesachim 112b; they were accustomed to clever, mocking conversation, though some of these sayings also relate to Torah matters concerning eulogy and mourning, for mockery departs from a house of mourning). Every person, even an am ha’aretz, has speech that is Torah teaching, which is the root of his soul and life-force; he himself simply does not know it, because he is still in darkness. It is called Hashem’s Torah, but it is not yet his Torah. In the future, when it will be called his Torah, for all will know that every human utterance and deed is entirely from Hashem, may He be blessed, then ‘they shall no longer teach,’ etc., for each person will have Torah teachings—the teachings connected to his root; that which is above his level cannot be taught to him at all.” These are his words[2]]. (See also Orayta DeShmuel, Tehillim 48:13, section 9, and in the introduction, p. 22.)
Rabbi Moshe Peretz shlit”a wrote to me: “I saw that you discussed whether one who investigates what constitutes the custom of the land regarding situmta is considered engaged in Torah. One may add that, according to all opinions, he is regarded as serving his Creator, as Maran wrote in the Shulchan Aruch (Orach Chaim, siman 231). Perhaps because of this uncertainty, Chazal said that every judge who renders a judgment of absolute truth is as though he fulfilled the Five Books of the Torah (Ba’al HaTurim, Mishpatim 21:1), so that a dayan should not think he is deemed to be neglecting Torah study when he engages in the details accompanying the halachic matters adjudicated in a din Torah.” These are his words.
[4]
Aside from this, if one studies Torah lishmah, seemingly we have no concern, for the author of Lachmei Todah wrote at the beginning of his introduction to Petichat She’arim (folio 2a, s.v. VeHineh): “One who engages in Torah lishmah merits that even his mundane conversation is considered actual Torah study. This is what our Sages of blessed memory said (Sukkah 21b): ‘And its leaf shall not wither’—even the conversation of Torah scholars requires study.” Rabbi Chaim Palagi cites this in Nefesh Kol Chai (ma’arechet tav, subsection 67) and writes: “With this I explained the intent of the Tanna Rabbi Meir (Avot 6:1): ‘Whoever engages in Torah lishmah merits many things’—meaning, he merits that many ordinary words and mundane conversations are considered study for him. This is in the manner of what our Sages expounded on several verses: ‘Take words with you’ (Hoshea 14:3; Yoma 86b), and the like, which refer to words.” These are his words.
(See also the words of Rabbi Eliezer Menachem Man Shach at the beginning of that work in the Machon Shuvi Nafshi edition, concerning engagement in the book of visions and lots found there and the like—whether it constitutes bittul Torah. He wrote to prove from the very fact that Rabbi Chaim Vital engaged in and wrote these matters. See there. Seemingly, he could have cited the author’s own words here. Yet, seemingly, this undermines his proof, for perhaps one cannot derive from Rabbi Chaim Vital, who engaged in Torah lishmah, and even whose mundane conversation was considered Torah. See further below. See also the introduction to Sefer HaBrit, which states that its first volume came to explain the foundations of nature and the like, which Rabbi Chaim Vital wrote about very briefly in Sha’arei Kedushah. See there. As is well known, all the great Torah leaders studied his work.)
One should not ask from what is written in Menachot (99b): Ben Dama, Rabbi Yishmael’s sister’s son, asked Rabbi Yishmael, “For one such as I, who has learned the entire Torah, what is the law regarding studying Greek wisdom?” He applied to him the verse, “This Book of the Torah shall not depart from your mouth, and you shall meditate upon it day and night.” “Go and find an hour that is neither day nor night, and study Greek wisdom then.” These are its words. Seemingly, he had the remedy in hand—to study lishmah. One may answer that there the discussion is not from the perspective of bittul Torah, just as there is no prohibition against learning a trade, but rather from the independent prohibition of Greek wisdom, as Rabbi Joseph B. Soloveitchik explained (Yeshurun, vol. 8, p. 292) based on the Yerushalmi (Peah 1:1). This is cited in Yalkut Biurim there, note 252.
Even if we say that it concerns the prohibition of bittul Torah, one may say it addresses studying Greek wisdom on the same scale as “learning the entire Torah” with which he began (see also Birkat Shmuel, Kiddushin, siman 27, section 8), whereas Rabbi Chaim Palagi referred only to something that is merely “words and conversation.”
In truth, even otherwise, there is no difficulty in the first place, for studying lishmah is no small matter, and perhaps Ben Dama had not yet reached that level at that time. (As written in Pesachim 50b, “A person should always engage in Torah even shelo lishmah,” etc.; and they infer that “always” applies initially.) This is what is meant by his saying, “For one such as I, who has learned the entire Torah,” etc., and “He applied to him the verse,” etc. Note also precisely the terms “I” and “to him” used here[3]. Indeed, one who reaches the level of Torah lishmah is permitted to do so. This provides resolution for what many have labored to explain concerning the conduct of the Rambam, who studied other disciplines. I found support for this in Lev Mevin (Navarro, Hilchot Talmud Torah, end of chapter 1), who analyzed the Gemara as we have and explained it according to his approach regarding Ben Dama’s level at that time. See there. According to our approach, this is likewise what the Rambam himself said of himself (Responsa of the Rashba, vol. 1, siman 414): that he studied secular wisdom only “as ointments, cooks, and bakers [serve] the holy Torah.” This falls within the category of his Torah lishmah, which permitted him even this mundane conversation, since he used it for the needs of Torah. I have been very brief.
[5]
It is relevant to cite what is written in Shevet Mussar (chapter 11): “Let us return to the virtue of Torah and speak of the wisdom of the Sages, to whom hidden secrets of wisdom were revealed, and who know and recognize all that the Holy One, blessed be He, created in His world, and are expert in everything. This applies not only to the Sages of the Talmud, whose stature was greater than that of the ministering angels, but even to the Sages of every generation. I shall write for you several remedies, segulot, and matters concerning creatures unusual in their nature and birth that are scattered throughout books, so that you may see with your own eyes that nothing was hidden from them, apart from matters found in the Talmud and Midrash, which I do not write because they are known. I cite only a few matters that appear hidden and are not widely known, etc.” (He subsequently wrote:) “I have written these matters because they relate to the service of Hashem: so that you know that there is no deity besides Him, and that He changes nature, as with the viper, weasel, raven, and a creature of the sea that swallows its young and brings them forth alive; and a small fish that holds back a ship with its sting. All is by His decree, may He be blessed. Some are medicinal matters, so that you may be healthy to serve Hashem, as the Rambam wrote medicinal matters for this reason. Some remove harm and facial blemishes, so that one should not be embarrassed among his fellows; some eliminate drunkenness and hatred of wine, which lead to transgression; some preserve fruit from rotting, wine from turning sour, and flour from becoming wormy, so that you not be troubled from the service of Hashem. Some enable letters to be erased easily to remove errors and enable blurred letters to be read correctly. Some concern the innate nature of animals in seeking remedies, so that a person should know and give thanks to his Creator, Who gave wisdom to all His creatures. Some are beneficial segulot serving as a preparation to understand something in Torah, for everything the Holy One, blessed be He, created in His world was created solely for His glory. Therefore, a person must know of all these matters with this awareness: that his intention is to understand matters of Torah and to praise, glorify, and exalt the One Who created everything according to His will for the sake of man, so that they may serve Him, to benefit them in both worlds through the reward for their service of Torah and mitzvot.” These are his words. (See HeYu Devarim MeOlam, vol. 2, chapter 2.)
See also the Ramchal’s introduction to Mesillat Yesharim, where he writes: “You will see, if you observe the present state of most of the world, that most people of quick intellect and sharp understanding devote most of their contemplation and examination to the subtleties of the disciplines and the depth of inquiry, each according to his intellectual inclination and natural desire. Some labor greatly in investigating creation and nature; others devote all their study to astronomy and engineering; others to crafts. Others enter further into holiness—that is, the study of the holy Torah: some through dialectical analysis of halachot, some through Midrashim, and some through halachic rulings.” These are his words.
Behold, from his phrase, “enter further into holiness,” it appears that everything previously mentioned—investigation of nature and creation, astronomy, engineering, and so forth—is included within holiness, but Torah study is further within holiness. Perhaps the word “further” modifies only the first part—namely, “enter”—and not the latter part, namely, “into holiness.” This requires further analysis. (Here, however, the discussion is not from the standpoint of a mitzvah to know a trade and the like.) [See also Sefer HaBrit, vol. 1 and its introduction, which states that through knowledge of nature and the like, one may prepare oneself to attain Ruach HaKodesh, as Rabbi Chaim Vital wrote in Sha’arei Kedushah. See there.]
(See also what I wrote in my work Orayta DeShmuel, p. 888, concerning the source of Chazal’s knowledge in natural science and the like. This is not the place to elaborate.)
[1] However, what they wrote that Rabbi Chaim Kanievsky agreed with this requires examination in light of what is written in Simchat Mordechai (p. 446), that Rabbi Chaim Kanievsky responded to Rabbi Aharon Leib Shteinman’s reasoning cited above: “It is not necessary.” More explicitly, She’elat Rav (vol. 2, p. 11) records that he answered that one who studies a sugya concerning a rabbinic mitzvah, such as Chanukah candles, fulfills a Torah-level mitzvah thereby. (See below for further statements from Rabbi Chaim Kanievsky.)
[See also Kuntres Karov Eilecha (chapter 11, section 19, p. 105 in the 5779 edition), where Rabbi Chaim Kanievsky was asked: Must one read the foreign-language words in Rashi? He answered: “My father zt”l used to say them, and said: Since Rashi wrote them, it is Torah.” These are his words. This is also found in Derech Sichah (vol. 1, p. 514). See also his words in Aryeh Sha’ag (p. 663), where he was asked this and answered that one must read them even though one does not understand them, as stated in Avodah Zarah (19a): “A person should first review, even though he does not understand.” A Peninim journal, no. 84, has now appeared, collecting statements and practices on this subject from several of our great later Torah leaders. See there and in readers’ letters in no. 85. See also what I wrote to him in a letter on this subject printed in no. 87, and in Ori Devorah, vol. 10 (siman 11). See also my Chiddushim on the Rambam printed in Ori Devorah, vol. 12 (p. 113), and what I wrote briefly in Tzelota DeShmuel (p. 784).]
(It is already known what Rabbi Elazar Menachem Man Shach wrote in the introduction to Avi Ezri—Madda, fourth edition—regarding the category of studying “Kabbalah” in relation to Torah study; and what several Torah scholars wrote in the Aliba DeHilchata journals, no. 16, p. 14, and no. 22, p. 26. See also what I wrote in my work Ori Devorah, vol. 8, p. 158.)
[2] My distinguished nephew, the eminent Torah scholar and G-d-fearing Rabbi Meir Dragoli shlit”a, author of HaMeir LaAretz, added that Rabbi Tzadok HaKohen likewise wrote this in his work Poked Akarim (folio 26b), s.v. VeChol Nisei. See there. See also Responsa of the Rashba (siman 413), Midrash Talpiyot (entry Heinu DeAmrei Inshi), Petach Einayim (Bava Kamma 92a), Midbar Kedemot (ma’arechet tav, section 11), Rabbi Chaim Palagi in Nefesh Chaim (ma’arechet mem, section 186), and Divrei Torah (vol. 4, section 112). The gaon Rabbi Adleret z”l composed a pamphlet on this entitled Kosht Divrei Emet. See also Megadim Chadashim on Eruvin (3a), Moed Katan (5a), and Ta’anit (9a), and Leket HaShibolim (vol. 2, p. 402). These are his words.
[3] Perhaps this is also why he is not called here by his full name and with the title Rabbi, for he was Rabbi Elazar ben Dama, Rabbi Yishmael’s sister’s son. (See Sefer Yuchasin, first essay, before the third group; and first essay, alphabetical listing, letter aleph, entry Rabbi Eliezer ben Dama.) This is how he is called before his passing in the Yerushalmi, Shabbat (end of chapter 14), and in the Tosefta, Chullin (chapter 2, halachah 22). [Apparently, these words were omitted from the Babylonian Talmud, Avodah Zarah 27b. However, I found no support for this in manuscript evidence. It appears more likely that the source abbreviated its wording. See also the Yerushalmi there, chapter 2, halachah 2, and examine carefully Sefer Yuchasin, first essay, there.] In Masechet Heichalot as well (end of chapter 4; Otzar HaMidrashim, p. 113), he is described at the time of his passing as one of the mighty ones of Israel. See there. (See further there in chapter 14, p. 116.) [It is interesting to compare this with what is written in Berachot 56b. See there.]
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
