Bothering to Rule Like Rav
In Kiddushin 79a, Rav and Shmuel discuss a case of a young woman and her father separately accepting kiddushin, where we determine she is a bogeret now but it is not established what she was at the time. Rav retrojects her present established identity to earlier, while Shmuel does not, such that we must worry that either her kiddushin or her father’s kiddushin was the one that took effect.
The same dispute can potentially be applied (in the gemara) to Niddah and mikveh, and to separating terumah, and to transferring property on one’s deathbed.
In Kiddushin 79b, the sugya ends with this:
אֲמַר לֵיהּ מָר זוּטְרָא לְרַב אָשֵׁי, הָכִי אָמַר אַמֵּימָר: הִילְכְתָא כְּווֹתֵיהּ דִּשְׁמוּאֵל. וְרַב אָשֵׁי אָמַר: הִילְכְתָא כְּווֹתֵיהּ דְּרַב. וְהִילְכְתָא כְּווֹתֵיהּ דְּרַב.
Mar Zutra said to Rav Ashi: This is what Ameimar said: The halakha is in accordance with the opinion of Shmuel. And Rav Ashi said: The halakha is in accordance with the opinion of Rav. The Gemara concludes: And the halakha is in accordance with the opinion of Rav.
Tosafot are bothered why the Gemara must conclude that the halacha is in accordance with Rav. That is:
והילכתא כוותיה דרב - ואף על גב דבכולי גמרא קי"ל (בכורות דף מט:) דהילכתא כוותיה דרב באיסורי הוצרך לפסוק כאן הלכה כמותו משום דאיכא אמוראי דפסקי כשמואל:
“Even though throughout the gemara we establish (Bechorot 49b) that the halacha is like Rav in ritual matters, we need to (explicitly) rule like him here because there are Amoraim who rule like Shmuel.
Bechorot 49b reads:
תני תנא קמיה דרב יהודה הפודה את בנו בתוך שלשים יום בנו פדוי
אמר ליה שמואל אמר אין בנו פדוי ואת אמרת בנו פדוי
ואע"ג דקיימא לן כרב באיסורי וכשמואל בדיני הכא הלכתא כותיה דשמואל:
The Gemara relates that a tanna taught a baraita in the presence of Rav Yehuda: In the case of one who redeems his firstborn son within thirty days of his birth, his son is redeemed.
Rav Yehuda said to him: Shmuel said his son is not redeemed, and yet you say his son is redeemed?
The Gemara comments: And even though we maintain that the halakha is in accordance with the opinion of Rav in ritual matters and in accordance with the opinion of Shmuel in monetary matters, here the halakha is in accordance with the opinion of Shmuel.
Note that that decisive principle is set out by the Talmudic Narrator, which may be / is often post-Amoraic, so we can perhaps argue on various applications. Indeed, I think I would.
The general decisive principle is that we generally rule like Rav in matters of ritual law and prohibitions (issurei). Is this chicken slaughtered properly? Is this woman married, such that there are adultery concerns? When is the onset of Shabbat? But, that we rule like Shmuel in monetary matters (dinei).
However, what about broader concepts, with possible applications to both issurei and dinei? Say they argue whether breira is valid, establishing a condition based on a later choice by the same party. One can set up such a breira condition for acquiring a ring, and then use that ring to marry a woman. Would we say that since ownership is a monetary matter, and marriage is a ritual matter, we’d split the difference?
Here in Kiddushin, the broad principle is whether to retroject assumptions backwards in time. I believe they would be consistent whether it is a ritual or monetary matter as the eventual target. Indeed, one possibility raised by the Gemara was transferring property on one’s deathbed, which is a monetary matter! If this crosses this boundary, why are Tosafot so convinced that this is issurei such that we would rule like Rav?
Similarly, in Bechorot, why does the Talmudic Narrator say that this is ruling like Shmuel in violation of the typical practice of ruling like Rav? I’m confused, because under discussion is redemption of the firstborn son from now (within 30 days), while the money was squandered away in the interim. This sounds like effectuating kinyanim, which I would have labeled a dinei concern. Even though there is a ritual obligation at play.
So I am confused and unhappy with this. Perhaps I need a better understanding of what is classified as dinei or issurei. Or, maybe that is the very point Rav Yehuda was making: “Rav Yehuda said to him: Shmuel said his son is not redeemed, and yet you say his son is redeemed?” Meaning, Shmuel is the authority when it comes to acquisitions, so how could you not rule like him? And the Talmudic Narrator endorses this idea, even though he doesn’t spell out just why we are deviating - that we aren’t deviating. (Still, the plain meaning is that it is a deviation.)
Another point is that this principle, ruling like Rav in issurei, is just a rule of thumb. If individual Amoraim weigh in and take specific sides, perhaps the principle would not apply. That is why the Talmudic Narrator had to say who we rule like, explain Tosafot. (But see above, that maybe it doesn’t entirely fall into one of these easy categories.)
The two Amoraim who weighed in are Rav Ashi and Ameimar. Rav Ashi was a sixth-generation Amora who presided over the reestablished Sura academy. Ameimar was a fifth / sixth-generation Amora who presided over the reestablished Nehardea academy.
Let us see that segment again:
אֲמַר לֵיהּ מָר זוּטְרָא לְרַב אָשֵׁי, הָכִי אָמַר אַמֵּימָר: הִילְכְתָא כְּווֹתֵיהּ דִּשְׁמוּאֵל. וְרַב אָשֵׁי אָמַר: הִילְכְתָא כְּווֹתֵיהּ דְּרַב. וְהִילְכְתָא כְּווֹתֵיהּ דְּרַב.
Mar Zutra said to Rav Ashi: This is what Ameimar said: The halakha is in accordance with the opinion of Shmuel. And Rav Ashi said: The halakha is in accordance with the opinion of Rav. The Gemara concludes: And the halakha is in accordance with the opinion of Rav.
So it is really a dispute between academies of something very late in the Amoraic era. The Gemara’s conclusion, like Rav, is siding with Sura academy. That could simply be a reflection of the academy / tradition the particular (Savoraic) Talmudic Redactor emerges from. And had it been redacted by someone Nehardea-aligned, we might have heard that the halacha is like Shmuel. Perhaps we can spot the Sura alignment from Ameimar’s statement being related to the local Rav Ashi, as a report of what a foreign person said. Meanwhile, the local Rav Ashi’s position is simply laid out as something known.