Shita vs. Rabban Shimon ben Gamliel Winning
Another point on Bava Batra 165a. The preceding Mishna had a statement by Rabban Shimon ben Gamliel II, juxtaposed with a statement by his brother Rabbi Chanina ben Gamliel. This Rabban Shimon ben Gamliel was the father of Rabbi Yehuda HaNasi.
רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר: הַכֹּל כְּמִנְהַג הַמְּדִינָה. וְתַנָּא קַמָּא לֵית לֵיהּ מִנְהַג מְדִינָה?
§ The mishna teaches, with regard to documents, that Rabban Shimon ben Gamliel says: Everything is in accordance with regional custom. The Gemara wonders: And does the first tanna not accept that one should follow the regional custom? It is not reasonable that he would take issue with such a basic concept.
אָמַר רַב אָשֵׁי: בְּאַתְרָא דִּנְהִיגִי פָּשׁוּט, וַאֲמַר לֵיהּ: ״עֲבֵיד לִי פָּשׁוּט״, וַאֲזַל עֲבַד לֵיהּ מְקוּשָּׁר – קְפֵידָא. נְהִיגִי מְקוּשָּׁר, וַאֲמַר לֵיהּ: ״עֲבֵיד לִי מְקוּשָּׁר״, וַאֲזַל עֲבַד לֵיהּ פָּשׁוּט – קְפֵידָא.
Rav Ashi said in explanation: In a place where the custom is to write an ordinary document, and one said to a scribe: Make an ordinary document for me, and the scribe went and made a tied document for him, it is assumed that he was particular about wanting an ordinary document. Similarly, in a place where the custom is to write a tied document, and one said to a scribe: Make a tied document for me, and the scribe went and made an ordinary document for him, it is assumed that he was particular about wanting a tied document. In both of these cases, the document is considered to have been written without the consent of the one who requested it. If it is a bill of divorce it may not be used, as a bill of divorce must be written with the knowledge and consent of the husband.
כִּי פְּלִיגִי – בְּאַתְרָא דִּנְהִיגִי בְּפָשׁוּט וּמְקוּשָּׁר, וַאֲמַר לֵיהּ: ״עֲבֵיד לִי פָּשׁוּט״, וַאֲזַל עֲבַד לֵיהּ מְקוּשָּׁר; מָר סָבַר: קְפֵידָא, וּמָר סָבַר: מַרְאֶה מָקוֹם הוּא לוֹ.
When the tanna’im of the mishna disagree is in a place where the custom is to write both an ordinary document and a tied document, and one said to a scribe: Make an ordinary document for me, and the scribe went and made a tied document for him. In such a case, one Sage, the first tanna, holds that the one requesting the document was particular about wanting an ordinary document, and since the scribe wrote a tied document, it is considered to have been written without his consent. And one Sage, Rabban Shimon ben Gamliel, holds that the one requesting the document was merely indicating his position to the scribe, stating that if the scribe wanted to save himself the trouble of writing a tied document there would no objection.
On this Rav Ashi, Vilna Shas has a Masoret HaShas note:
in which Rasha”l (Rav Shlomo Luria) changes it to Abaye.
This is not the text we see in printings or most manuscripts in Hachi Garsinan, except for an important one, Munich 95.
What sevara could possibly motivate this Rasha’”l? Well, recall that Rav Ashi is a sixth-generation Amora, and Abaye is a fourth-generation Amora. And, Rav Ashi’s answers concludes with מָר סָבַר: קְפֵידָא, וּמָר סָבַר: מַרְאֶה מָקוֹם הוּא לוֹ. So one master, namely Rabban Shimon ben Gamliel, maintains that it is mar’eh makom for her.
And, juxtaposed in the very next statement is Abaye, who makes a Shitta, an alignment of opinions of Tannaim across Shas, about מַרְאֶה מָקוֹם הוּא לוֹ.
אָמַר אַבָּיֵי: רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְרַבִּי שִׁמְעוֹן וְרַבִּי אֶלְעָזָר – כּוּלְּהוּ סְבִירָא לְהוּ: מַרְאֶה מָקוֹם הוּא לוֹ.
Abaye said: Concerning Rabban Shimon ben Gamliel, and Rabbi Shimon, and Rabbi Elazar, they all hold that when one gives instructions to an agent, he is merely indicating his position to him, as opposed to expressing an insistence on certain details.
רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל – הָא דַּאֲמַרַן. רַבִּי שִׁמְעוֹן – דִּתְנַן,
Rabban Shimon ben Gamliel holds this is the case, as we have just said. Rabbi Shimon holds this as well, as we learned in a mishna (Kiddushin 48a), as explained by the Gemara there, that the first tanna rules that if a woman appoints an agent to accept her betrothal money and tells him that the man will be giving a golden dinar, or that he will be giving a silver dinar, and he in fact gives the other type of dinar, the betrothal is not valid, as in accepting the wrong dinar the agent did not follow the woman’s instructions exactly.
This certainly smells like Abaye is reacting to an analysis of Rav Ashi. And we should not have that, because as far as we can tell, these Amoraim living in different times and different places did not interact. It goes against the typical chronology.
So, a solution would be that Abaye actually made both statements. On the other hand, this is a kind of upward bleed, taking an attribution from a later statement and associating it with the preceding statement.
Another answer could be to strip away attribution entirely. Look at Rif, for instance, who does not ascribe this Rav Ashi statement to any Amora, even while attributing the Abaye statement to Abaye.
A third answer, which I perhaps like even more, is that this statement of Abaye doesn’t really belong here, to this analysis of Rabban Shimon ben Gamliel’s statement. After all, we have three Tannaim, and Abaye says this where each of these Tannaim were local. To quote Masoret HaShas again, note daled gives other instances, but only one, Kiddushin.
There, in reaction to Rava, we have Kiddushin 48:
אָמַר אַבָּיֵי: רַבִּי שִׁמְעוֹן וְרַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל וְרַבִּי אֶלְעָזָר כּוּלְּהוּ סְבִירָא לְהוּ מַרְאֶה מָקוֹם הוּא לוֹ. רַבִּי שִׁמְעוֹן – הָא דַּאֲמַרַן, רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל – דִּתְנַן:
Abaye said: With regard to Rabbi Shimon, and Rabban Shimon ben Gamliel, and Rabbi Elazar, they all hold that when one instructs an agent in such a manner he is merely indicating his position to him, as opposed to expressing an insistence on certain details. If the agent makes insignificant changes to the instructions the agency is still fulfilled. Rabbi Shimon holds this, as seen in this mishna that we just said. Rabban Shimon ben Gamliel holds this, as we learned in a mishna (Bava Batra 160a):
which cites our very Mishna as well as vehaveinan bah, meaning the gemara analyzes it, together with citing Rav Ashi on Bava Batra 165.
So, perhaps we can simply have Abaye reacting to his contemporary Rava, who associated mareh makom there with Rabbi Shimon. And then, later, Rav Ashi will expand upon this earlier idea.
If you look at Rif and Rosh on this gemara, you’ll see that they rule against Rabban Shimon ben Gamliel. Thus, Rif:
כגון אתרא דנהיגי בפשוט ובמקושר וא"ל עביד לי מקושר ועבד ליה פשוט או אמר לו עביד לי פשוט ואזל עבד ליה מקושר תנא קמא סבר קפידא ורשב"ג סבר מראה מקום הוא לו אמר אביי רשב"ג ור"ש ורבי אלעזר כולהו סבירא להו מראה מקום הוא לו רשב"ג הא דאמרן ר"ש דתנן ר"ש אומר אם הטעה לשבח הרי זו מקודשת רבי אלעזר דתנן האשה שאמרה התקבל לי גטי ממקום פלוני וקבלו לה ממקום אחר פסול ור"א מכשיר והני כולהו שיטה אינון ולית הילכתא כחד מינייהו:
This is an idea expressed by the Geonim, that when we see a Shitta, an organized list of Tannaim all expressing the same idea (or often just a related idea), the purpose is not to make them into a rabbim, majority, but to say that we do not hold like any of them. They are each a daat yachid.
I don’t know that this is what Abaye necessarily intended as he surveyed Tannaitic disputes and found patterns.
I would note that this statement of Rabban Shimon ben Gamliel II is found in a Mishnah, and there is another rule of thumb of pesak from Rabbi Yochanan, that wherever we see Rabban Shimon ben Gamliel II in our Mishnah, the halacha is like him, except in three enumerated cases.
So which decisive principle wins? Obviously, assuming he considered it, Rif would say that ruling against a Shitta wins. After all, Abaye is a later Amora than Rabbi Yochanan, a batrai, and Abaye is interpreted as saying that these are the Tannaim who we rule against. I’d also note that other Shittas expressed by Abaye, e.g. in Bava Metzia, also encompass Rabban Shimon ben Gamliel II.
I think an alternative would be that Rabbi Yochanan makes his rule explicit, while this is an interpretation Abaye’s implicit agenda, so we should follow Rabbi Yochanan’s rule.