Tosefta Atiqta English abstract .docx

Summaries for: Shamma Friedman, Tosefta Atiqta, Pesaḥ Rishon, Synoptic Parallels of Mishna and Tosefta Analyzed, with a Methodological Introduction, Ramat Gan: Bar-Ilan University Press, 2002.

This English abstract (not published within the book) offers summaries of the 22 studies of Mishna/Tosefta parallels which comprise the body of this volume.




1. Two Rows in the Cellar
Mishna 1:1 / Tosefta 1:1-3 (p. 140)
Our mishna goes out its way to quote a passage from an older, otherwise unknown mishna (שתי שורות במרטף) in order to use it as a base for inclusion of the interesting debate between Bet Hillel and Bet Shammai regarding that passage. Aside from this digression, the Mishna has converted the list of particulars used in the earlier Tannaitic material into general statements. One of the two earlier lists of particulars is preserved here in the Tosefta. In addition the overall order of the passage is preserved originalier in the Tosefta.

The controversy between Bet Shammai and Bet Hillel appears in its earlier form in the Tosefta, whereas the Mishna sacrifices some clarity for the sake of brevity.


2. Two Thank-Offering Loaves
Mishna 1:4-5 / Tosefta 1:4 (p. 141)
Two different approaches are cited in this mishna for fixing the end of the period during which ḥametz may be eaten on the 14th of Nisan and the time for burning it. The first calculates according to hours, and the second according to placing or removing two loaves of the Thank-Offering on the roof of the portico in the Temple compound. These two approaches should be seen, essentially, not as conflicting halahkic positions, but on an historic continuum, one describing the practice in the Temple, and the other a later adaptation to the post-Temple reality and new national-religious centers, using a calculation of hours.

The description of the two loaves as a signal for the stages of the use of ḥametz is closely paralleled in the Mishna and the Tosefta, with the Tosefta presenting and earlier text in those several words where the two differ. Thus only the Tosefta records the fact that this statement of R. Judah was reported in the name of Rabban Gamliel. The middle signal, the removal of one loaf, has a clear and practical function in the Tosefta, introducing a period during which only ḥametz of T'rumah may be eaten, but other ḥametz may not. This reflects the concrete Temple reality of large quantities of T'rumah. In 1:4 R. Judah (using the "hours" system), calls for an intermediate waiting period of suspended action, similar to the early Temple practice of three stages. This terminology of suspended action (תולין) is also introduced in 1:5, in contrast with its generally exact parallel in the Tosefta, which specifies the eating of T'rumah during the intermediate period. Thus the two statements in the Mishna by R. Judah have been harmonized on this point.

The idea of eating T'rumah is reported in the Mishna in Rabban Gamliel's name only, instead of the original "R. Judah in the name of Rabban Gamliel", and is couched, for brevity's sake, in the later "hours" system.

The above analysis provides a simple explanation for the hour of suspended action (which the Amoraim went to great lengths to explain)
Corroboration of the fact that the middle hour was originally a time of ritual consumption of holy food which was ḥametz (קדשי חמץ) can be drawn from a baraita in PT which describes the actual consumption of the thank-offering loaves themselves during this period! The parallel of this same baraita in BT introduces the mishna's idea and language of suspended action in place of this clause.

Clearly then, the use of the thanks-offering loaves as a sign for the stages of the removal of ḥametz derives from the fact that they are themselves ḥametz, and their festive ritual consumption originally marked the last hour for the permissible eating of ḥametz.


3. Burning ḥametz of Pure Trumah
Mishna 1:6-7 / Tosefta 1:5-6 (pp. 141-42)

R. Meir (m 1:7) deduced support for his opinion (t 1:5) that all statuses of trumah, namely, pure, impure, and doubtful, when they are ḥametz, can be combined and burned together, from the statement of R. Hanania the Prefect of the Priests regarding the Priests' practice of burning together meat of varying degrees of impurity, and from the statement of R. Akiva regarding their similar practice in burning oil.

R. Meir's position is challenged and rejected in the Tosefta by two different Tannaim. First R. Simeon records his tradition that the masters two generations earlier, R. Eliezer and R. Joshua, both agreed that pure and impure trumah, when ḥametz, must be burned separately. The second statement, by R. Jose, specifically challenges the validity of R. Meir's deduction: the question under discussion is not comparable to the priests' practice, in that they simply combined substances of different degrees of impurity, but never combined the pure and the impure.

R. Jose's "statement" in the mishna is actually an abbreviated combination of the original statements of both R. Jose and R. Simeon in the Tosefta. It is thus demonstrated that, in editing his sources, the compiler of the Mishna combines explicate statements of two different Tannaim into one unit, despite certain incompatibility between them. Furthermore, he thus attributes the word of one Tanna to another.

Both Talmuds were aware of the basic incompatibility of the two parts of R. Jose's "statement" in the Mishna. The Bavli portrays R. Meir as correcting R. Jose after he voiced the first part of his statement, and R. Jose starting again with a different argument, which became the second part, in that both stages were retained, despite their contradiction. The Yerushalmi's reaction is stronger and more direct: (תברא!)- Two separate tannaim, are speaking here! We are able to corroborate the Yerushalmi's approach when we view the Tosefta's version of these statements as original to that of the Mishna, in which conflicting sources were edited and combined for brevity's sake showcasing the differing natures of the Mishna as a composition VS Tosefta as collection. The baraitot in the Bavli (15a, 20b) are parallel to our tosefta. As usual it can be shown that their base text was originally quite similar to the Tosefta, but later underwent style- and subject-editing.

4. A Time for Eating and a Time for Enjoying
Mishna 2:1 / Tosefta 1:7 (p. 142)

This Tosefta preserves an early halakha concerning the sale of ḥametz to non-Jews on the 14th of Nisan. An ancient opinion (בראשונה) required that the sale allow enough time for the purchasers to consume the ḥametz before the mandated time of its removal (שעת הביעור), countered by R. Akiva who allowed the sale even during the time of its removal. R. Jose held that these two opinions were originally the two sides of a dispute of the Hillelites and the Shammaites.

The Mishna generalizes the original law regarding the final time for sale to non-Jews to state the final time for all types of benefit from ḥametz. The daring leniency expounded by R. Akiva, allowing sale of ḥametz even during the time of its removal, is conservatively recast in the Mishna by setting the time back to a period before the removal time, thus equating the time for benefit with the time for eating, i.e. through the fifth hour (see 1:4).

In a certain case where an unredeemed deposit of ḥametz required sale by the authorities on the 14th of Nisan, Rabbi himself once issued a ruling permitting it (Yerushalmi and Bavli). His personal ruling used language identical to that of R. Akiva in the Tosefta, namely permitting sale during the time of removal, rather than the more conservative language used in the Mishna. The Amora'im, however, in interpreting this ruling, brought it into line with the Mishna by defining "the time of removal" mentioned by Rabbi as referring to some earlier time, e.g. the fifth hour. The Rishonim, followed by modern scholarship, harmonized this ruling with the language of the Mishna, and thus equated "the time of removal" with the fifth hour. This is a strange anomaly in that ḥametz may still be eaten during the fifth hour, and its mandated removal, usually by burning, is not until the sixth hour.

The observation that our mishna is a secondary composition is supported by the fact that most of the stylistic elements of its language are known from other contexts. A high concentration in a specific passage of language also appearing elsewhere is often an indication of secondary composition.

In connection with this mishna we discuss the phrase "from six hours onward" (משש שעות ולמעלה). When used by the Amorai'm, this phrase clearly means "the second half of the day", "from the beginning of the seventh hour onwards". R. Meir considered the prohibition of ḥametz during this time as rabbinic only, and not biblical. However, the anonymous talmudic editor, while applying this phrase as part of his explanation why our mishna emphasizes that eating and benefit time of ḥametz end together, uses it as referring to the sixth hour!

Both the Rishonim and modern scholars, in attempting a definition of our phrase, are troubled by the disparate usages, but, none the less, each authority adapts one or the other of the above two definitions only, as indeed one would expect consistency of meaning for such a technical phrase, forcing it upon all occurrences. In contrast, our source-critical approach maintains that the separate components of the Talmud each used a different definition. One component (Amoritic statements) used the phrase in the original meaning; the anonymous editor vigorously reinterpreted it under the influence of our mishna, which moves the prohibition of benefit up to the beginning of the sixth hour. As usual, the Bavli insists on adapting the literal meaning of the Mishna, which often, as here, presents a new concept, whereas the Yerushalmi is more willing to continue applying the content of the earlier halakha.

The practical halakhic upshot in our case involves an act of betrothal during the sixth hour, using ḥametz as the transferred object of value. The Amora'im determined the possession of the ḥametz, and thus the validity of the betrothal, according to the exact time that benefit of ḥametz became forbidden. Thus the above conflict as to the status of ḥametz during the sixth hour will affect the validity of such a betrothal.

5. ḥametz Belonging to a non-Jew
Mishna 2:2 / Tosefta 1:12 (p. 144), 1:8 (p. 142)

In that the exact correlation of this mishna with parallels in the Tosefta is not immediately obvious, it would be well to survey a segment of the first four mishnas of this chapter with their Tosefta parallels.

Mishna Tosefta

2:1 1:7
2:2a 1:12
2:3 2:9
2:4 1:10

The extremities of Mishna in this group (2:1; 2:4) have Tosefta parallels equally close to each other, and in comparable positions (1:7; 1:10). However, the Tosefta parallel of m2:3 appears a full chapter further in the text, 2:9. Similarly, m2:2a can be associated with a parallel significantly farther in the text, at the end of t1:12. An analysis capable of explaining this phenomenon is that m2:1 and m2:4 are original local material. The editor of the Mishna supplemented m2:1 by moving forward and attaching halakhot from later sections of the original arrangement, which is still maintained in the Tosefta. The purpose for attaching this supplement (m2:2a, 2:3) was in order to collect in one place several laws dealing with ḥametz and the non-Jew.

It would thus appear that m2:2b occurs here due to its local origin, and its parallel is t1:8, which is located in proper position between t1:7-1:10. In t1:8 Rabbi Judah held that eating ḥametz after Pesach, when such ḥametz had been in the possession of Jews during Pesach, violates a biblical prohibition. It is this prohibition that is capsuled in m2:2b, together with and attempt to identify by verse which biblical prohibition was meant in the older halakha.

The editor of the Mishna thus combined the local m2b with an imported m2a.The local terminology; (חמץ שעבר עליו הפסח) is now equally applied to 2a, creating an anomaly in that ḥametz possessed by a non-Jew is not (חמץ שעבר עליו הפסח) in the same full and literal sense of 2b.

The new tightly integrated combination of 2a and 2b creates further difficulties. When the Yerushalmi identifies the opinion of our mishna as that of Rabbi Judah, clearly only 2b is meant. The Bavli, however, tries to apply this, with difficulty, to 2a, leading, in the course of the discussion, to a strange halakha, viz., that there is no biblical prohibition to eating ḥametz during Pesach, when such is in the possession of a non-Jew!

6. ḥametz Pledged Towards Repayment of a Loan involving a Non-Jew
Mishna 2:3 / Tosefta 2:9-10 (p. 146)

According to Mekhilta Pisha 10 (p. 34) ḥametz belonging to a Jew but held by a non-Jew need not be removed during Passover. Our tosefta can be taken to be referring to such a midrash, addressing both the situation and the law. ḥametz belonging to a Jew is held by a non-Jew when it was surrendered to him as a pledge securing a loan. Furthermore, the tosefta makes clear that the law of the midrash would apply only if the pledge became the property of the non-Jew, such as when the borrower had stipulated that non-payment by a certain date before Passover would affect transfer of title for the pledge.

The mishna has been preserved differently in Palestinian and Babylonian versions. The Palestinian version makes it clear that without such an explicit stipulation no change of title for the pledge would take place. According to the Babylonian version such a transfer would indeed take place automatically. This conflict between the two mishna-types grew out of legal evolution on the status of a pawned object, with the Babylonian type representing the later position that a creditor has legal title of a pawn.

The above reconstruction of the legal and literary development behind these complex passages, in addition to further considerations, argues for construing our mishna (in its original Palestinian version) as an abbreviated general statement of the basic principles applying to the longer and more detailed law preserved in the Tosefta.


7. Value as Wood
Mishna 2:4 / Tosefta 1:10 (p. 143)

The mishna and the tosefta deal with a non-priest who mistakenly consumed trumah which was ḥametz on Passover. Non-intentional consumption of trumah by a non-priest carries a Biblical obligation to repay to the priest its value and add a fifth for atonement; in cases of intentional consumption the regular laws of theft apply, in which the value must be returned, there being, of course, no fifth. In that ḥametz on Passover is forbidden for consumption or any other use, it has no nominal value. Impure trumah not involving the prohibition of ḥametz is an intermediate situation. It is prohibited for consumption, but may be used as fuel. In such cases, payment is made based upon calculation of its value as fuel ("wood").

The tosefta is an early halakha which presents Rabbi Yohanan ben Nuri's suggestion that trumah which was ḥametz on Passover should also require payment based on its value as fuel, is then rejected by Rabbi Akiba, in that ḥametz may not be used as fuel, and consequently has no value what-so-ever. Clearly this discussion involves unintentional consumption, the classic Biblical context with its special additional fifth for atonement, Rabbi Yoḥanan ben Nuri is attempting to maintain some minimal application of this law.

The Mishna presents us with later developed stringencies. Both impure trumah not involving the prohibition of ḥametz (Trumot 6:1) and trumah which was ḥametz on Passover (our mishna) require full payment for non-intentional consumption, despite the fact that they have little value (the impure for fuel) or no value (the ḥametz), the latter fact clearly accepted by our mishana in that one is exempt for intentional consumption.

The discrepancies of the older law (Tosefta) and its later development (Mishna) are harmonized by both talmudic and modern scholars.


8. The Second Tithe as Matza
Mishna 2:5 / Tosefta 2:5 (p. 148)
Neither the mishna nor the tosefta under discussion present the primary form of the halakhot dealt with here. These can be found in the tannaitic midrashim, such as Mekhilta. Certain tanna'im held that dedicated foods, such as the Second Tithe or the First Fruits, which may be eaten in Jerusalem only, may not be used as matza on the eve of Passover since the Torah specifically defines matza as food which is eaten "in all your habitations".

The tosefta relates to such a position, but provides a rationale permitting pure Second Tithe as matza in Jerusalem, due to the fact that potentially it too could belong to the category of foods which may be eaten outside of Jerusalem, such as if it were impure and redeemed. The mishna is even farther removed from the basic law under discussion. It provides a stereotyped double list (positive and negative) which appears in several places throughout the Mishna. Its basic import is simply that only permitted categories of foods, such as redeemed Second Tithe, may be used for matza, but not prohibited ones, such as unredeemed Second Tithe. Its frame of reference is clearly places outside of Jerusalem, while the tosefta preserves the original frame of reference, foods which may be consumed in Jerusalem only. Thus, both in terms of the above, and for basic stylistic considerations, it is most difficult to construe the tosefta as orienting to this mishna and commentating upon it.

The Mishna's stereotyped list is supplemented by an issue directly related to the basic topic: cakes for the Thanksgiving offerings and wafers of a Nazirite, as to whether they can be used for matza on the eve of Passover. The formulation of this law, however, is borrowed from Hallah 1:6, together with a distinction between those baked for personal use and those baked for resale. This distinction derives from a discussion of early Tanna'im including Rabbi Eliezer and Rabbi Joshua concerning ḥallah, which was also secondarily restated for matzah in the Bavli's baraita in the light of our mishna. Thus it is impossible to view the baraita's ascribing a reference to a law similar to our mishna to Rabbi Joshua as a proof that this mishna is an early text already quoted by Rabbi Joshua.

9. Shrivelled Lettuce
Mishna 2:6 / Tosefta 2:21 (pp. 149-150)

The Mishna lists five herbs which can be used to fulfill the commandment of bitter-herbs (as five grains are listed in m5 for matzah). The parallel tosefta mentions two herbs only, in a list attributed to Rabbi Judah ben Betera. In each list the first is lettuce. The Mishna's is a later list, expansive and updated. Its last item is maror, identified by Albeck and Felix as sonchus, translated by Beer "Bitterkraut", and Danby "dandelion". A cognate of maror, referring to this plant, is mentioned in Syriac sources (Löw). Were such an herb used in earlier times, its linguistic affinity with the biblical m'rorim (bitter herbs) would certainly have curtailed the process of adding other species. This fact supports the above conclusion that the earlier list is that preserved in the Tosefta. This is further supported by the fact the tosefta includes "lettuce", a fact difficult to explain by those who take the tosefta as commenting upon out mishna, which itself lists that herb.

The Mishna, in its earlier textual witnesses and in the Palestinian Talmud, permits the use of herbs that are shriveled. Identical wording is found in the Tosefta, and this reading is the original text of the mishna, in as against the Bavli's mishna which reads "withered", namely, in an even drier state. In the Tosefta two minority opinions are recorded: Rabbi Meir, who permits use of herbs in a withered state, and Rabbi Zadok, who permits fulfillment of this commandment with pickled herbs. Both of these positions were rejected by Rabbi Judah the Prince in his Mishna, as preserved in the Palestinian version. The mishna thus integrates the various halakhic issues in one concise statements. However, scholars who viewed this mishna as the primary text vis-*-vis the tosefta, it great antiquity, already challenged by a pre-destruction sage; consequently their interpretation of various complex literary issues connected to our subject is often quite different from the above.

10. Incline or Plane
Mishna 2:8 / Tosefta 3:6-7 (p. 152)

It could easily be claimed that this short mishna forbidding the further use of water used by the baker is an original base text, expanded on by the tosefta. Further investigation suggests otherwise. Were this mishna the tosefta's literary point of departure, it would comment directly upon it rather than restating the kernel law. Furthermore, the tosefta's second clause would be superfluous.

The priority and independence of the tosefta is underscored by its stylistic usage. Throughout Tannaitic and Amoraic literature, water is pictured as pooling in a plane, and being dispersed on an incline. This tosefta describes these two actions oppositely: water disperses in a plane, but collects at (the foot of?) an incline! In that the Mishna as canon gave these usages a stereotyped fixity, the tosefta's independence of these conventions points to its literary formulation prior to the extension of the Mishna's influence, and stemming from an independent and older source that use the opposite convention.

11. "So too in the Matter of Impurity"
Mishna 3:2 / Tosefta 3:1 (p. 150)

The Tosefta contains a collection of three laws about dough or flour in a kneading-trough, the last two regarding Passover and the first regarding impurity. Eventually the first law was also applied to ḥametz, as indeed happened in our mishna, where the issue of dough in the cracks of a kneading-trough is applied to both areas. At the same time, the content of the law was simplified; its dual provision was separated, one part now applied only to ḥametz, the other only to impurity, with a connecting link, "So too in the matter of impurity". The Bavli found this language ("so too") difficult, in that the content of the two laws in the mishna is different. Many moderns were also disturbed by this. However, this phrase can definitely be used as a loose connecting link; despite the fact the content of the two laws is not identical.

As to the relation of the mishna and tosefta, the modern authorities attempted to construe the tosefta as a commentary to Mishna. Epstein posited an older form of the mishna, which he reconstructed so that the tosefta could serve as a commentary upon it (and at the same time using the connecting link in a way meeting the Bavli's demand). Lieberman forcedly took the tosefta as an explanatory commentary upon our mishna. A more satisfying approach takes this tosefta as an independent halakha, in this case similar to the source that our mishna used and reworked.


12. Separating ḥallah on the Festival of Passover in a State of Defilement
Mishna 3:3 / Tosefta 3:7 (p. 152)

The Mishna and Tosefta deal here with the problem of how to separate ḥallah on the festival of Passover in a state of defilement, due to which the ḥallah cannot be eaten by the Priest. On any other festival the procedure would be to separate the ḥallah, and keep it until the conclusion of the festival when burning defiled ḥallah would be permissible. On Passover, however, such a procedure would yield ḥametz!

R. Eliezer and R. Yehuda ben Betera each offer technical measures to overcome this dilemma. R. Joshua rejects any practical solution. His rejection, however, is stated in the Mishna and in the Tosefta in two diametrically opposite positions. In the Mishna he states, "Such ḥametz is not included in the prohibitions", interpreted to mean that no transgression whatsoever applies to this ḥametz. In the Tosefta he claims that in this situation there is no way of avoiding violation of some prohibition! Consequently he takes the stand there that desisting from action, even though a violation is committed, is preferable to any active transgression.

The Tosefta passage, where R. Joshua expresses his frustrating failure in finding a solution that avoids transgressing the law, is certainly the original version. The Mishna couches his position in phraseology that softens this failure with rhetoric; this now must be taken to mean that it is correct to keep the ḥallah, although it becomes ḥametz, since there is no way of avoiding a violation of a commandment.

In using this metaphor, the editor of the Mishna is actually applying and reusing language used by R. Joshua in T'rumot 8:11 with a meaning similar to the one we are suggesting here. As to the use in the Mishna of euphemistic rhetoric for unavoidable transgressions of the laws of the Torah, and thus creating the (mistaken) impression that there is no violation whatsoever, compare below, chapter fifteen.





13. Three Women
Mishna 3:4 / Tosefta 3:8 (p. 153)

The Sages' opinion in the Mishna is that three women may simultaneously prepare dough on Passover and bake it without concern that it will become ḥametz, as long as they coordinate their operations in sequence. The same law (12 words) is included in the Tosefta in identical formulation, except for one word. The middle operation is called עורכת in the Mishna, but מקטפת in the Tosefta. This operation stands between לישה (which usually indicates kneading) and אפייה, baking.

There are many passages in rabbinic literature that refer to this particular sequence of operations in the preparation of bread. Some refer to the middle operation as עריכה and others as קטיפה. In this regard the general behavior of the Mishna and the Tosefta are quite different. The Mishna's terminology is consistent -- always עריכה, but in the Tosefta some passages use the one term and some the other. We have already noted that the Mishna is a highly edited work, while the Tosefta is loosely edited, with less disturbance of the original style of its sources. This is corroborated by the present issue. The uniformity of the Mishna is more easily understood as a result of editing. Thus it must be concluded that עורכת is the original wording of our passage, edited in the Mishna to conform with its norm: מקטפת, but left undisturbed in the Tosefta.

Although the two terms are interchangeable in literary contexts, they are not synonymous; עריכה is "kneading" (as in Aramaic and Syriac) and קטיפה is "sprinkling". Consequently, in the sequence under discussion in the Mishna, עריכה is to be taken in its archaic meaning: "mixing".


14. When the Fourteenth of Nisan Falls on a Sabbath
Mishna 3:6 / Tosefta 3:9-11 (pp. 153-154)


In the Tosefta, three independent passages have been juxtaposed on the basis of similar style and content. In the Mishna these three passages have been condensed, and integrated into a coherent whole. Thus the name of "R. Meir", associated with the beginning of the second passage in the Tosefta is now used to indicate the author of the first statement in the Mishna, creating a bridge between these two originally separate pericopes.

The extended process of editing and recasting the original text (which is preserved in the Tosefta) is observed both in the Mishna and the braita of the Babylonian Talmud. As a result, the sense of various laws was changed. Eliminating "all ḥametz" before the Sabbath came to mean all, with the exception of enough ḥametz for eating two meals on the Sabbath. The original, simple meaning was intended literally, with matzot to be used for the Sabbath meals, even on the eve of Passover.

As to the Sages' opinion regarding the elimination of t'rumah which was ḥametz, the original reading in the Tosefta, preserved in a Geniza fragment, calls for the destruction of the ḥametz "after the conclusion of (the first day of the) festival". According to this text, the hesitancy to destroy t'rumah before the festival lead to maintaining ḥametz during Passover! This problematic situation was then avoided in the Mishna's reformulation, fixing the elimination of the t'rumot of ḥametz "at their [regular] time"; namely, on the fourteenth (which was Sabbath), ostensibly by dispersing to the wind. The new formulation was then reapplied to the later texts of the Tosefta, in various manners, and creating several types of awkward language, which bear witness to the entire process.



15. Cancellation of ḥametz
Mishna 3:7 / Tosefta 3:12 (p.154)


The institution of "cancellation of ḥametz", viewed by the Bavli as being of toraitic authority, has long been considered a legal enigma. How can a substance, whose possession is under severe prohibition, be willed away? Our Mishna, it would appear, contains the explanation of how this institution arose.

This Mishna and (almost verbatim) Tosefta present a dilemma resulting from conflicting obligations. If, on the fourteenth of Nisan, one set out on a journey to Jerusalem in order to slaughter the Pascal lamb, or on a journey in order to circumcise his son (two positive commandments whose omission is punishable by karet), and then recalled that he had not removed the ḥametz from his home, what should be done? If there is time to perform both the removal and the other commandment, he must return home. "If not, he should not return', says the Tosefta. No matter how disconcerting it may be to have violated the commandment of the removal of ḥametz, its observance has been outweighed in this case by a more binding commandment, since the fulfillment of both is impossible.

In the Mishna, the wording of this otherwise practically verbatim law is, "And if not [able to return] he should cancel [the ḥametz] in his mind!" The depressing result of the ancient law preserved in the Tosefta is here somewhat ameliorated, at least on the psychological level. If you can't get rid of it, at least declare it null and void in your mind. This interpretation can be supported by other passages which treat the cancellation of ḥametz as a supportive measure where one's ḥametz is physically out of reach, and consequently the possessor is exempt from the commandment of removing it. However, in the system of the Bavli's legal conceptualization, the remedy in our Mishna was apparently considered absolute, and consequently the concept of toraitic cancellation of ḥametz was formulated.



16. Work on the eve of Passover
Mishna 4:1,5 / Tosefta 3:18 (pp. 155-56)
The body of chapter four of Mishna Pesahim is an independent collection describing various customs accepted in some localities but not in others. The first pericope of the chapter deals with doing work on the day before Passover. However, this subject differs from the others contained in the collection in that its treatment is divided into two sections, the first (aforementioned) at the beginning of the chapter, and the second in mishna 5b-6. More surprising is that the second section cannot stand independently, and is clearly a continuation of the first. Current scholarship explains this situation as resulting from the non-integrated combination of two literary sources (whether the second passage itself is from a separate source, or the material standing between the two passages was added from a separate source).

A third possibility, however, is that the original location of both passages was in the middle of the collection, where the second passage stands today. As part of integrating this collection in the tractate of Pesahim, the editor of the Mishna moved part of this law to the beginning of the chapter, to emphasize its connection with the theme of the tractate, laws of Passover. This reconstruction is corroborated by the Tosefta, which presents the entire subject in the second position only. The Tosefta has been found to preserve a more original sequence of halakhot in general. Having suggested the original position of these two passages, we attempt a reconstruction of the original collection, which has now been divided between the Mishna and the Tosefta. The clear literary-structural patterns which emerge from this reconstruction corroborate the suggested placing of the passage dealing with work on the eve of Passover.

The particular difference between the Mishna and the Tosefta in the opening passage is that the Mishna speaks about work in general, whereas the Tosefta mentions work upon something connected to the ground. It is quite probable that the Tosefta is closer to the original emergence of the two customs. The fourteenth of Nisan was apparently an independent festival or quasi-festival in ancient halakha, with all work being forbidden. Gradually, however, certain pressing agricultural tasks were permitted, or at least sanctioned, in certain locations, such as palm pollination in Jericho (below, chapter 18). Accordingly the Tosefta stipulates "attached to the ground", whereas in the Mishna this has already been generalized to a custom allowing any work on the day before Passover



17. Lights on the Night of Yom Kippur
Mishna 4:4 / Tosefta 3:17 (p. 155)
Even in communities where it was the custom not to leave lights burning on the night of Yom Kippur, there were certain specific places for which an exception was made. The list of these places in the Mishna includes synagogues, study halls, dark alleyways and near the sick. In the Tosefta a different list appears for the places where the lights were left burning: inns and toilets. This would appear to be the original list, reflecting the mundane needs of real life. The Mishna presents a stylized list, shifting the emphasis to the realm of the holy, and in fact using a literary borrowing from T'rumot 10:11.


18. The People of Jericho
Mishna 4:8 / Tosefta 3:19 (pp. 156-57)
This is a remarkable example of the procedure we are studying, in that the Tosefta contains not only the older formulation of the passage, but also the criticism of its original language and the suggestion for its reformulation, which has been accepted and introduced in the Mishna! The Mishna is thus demonstrably the later text, containing the emendations offered by R. Judah himself.

The Mishna also includes other later features in comparison with the language of the Tosefta. The original text of the Tosefta speaks only about reaping before the omer, but not stacking. The Mishna speaks of reaping and stacking. This change is related to the Mishna in M'nahot 10:8, where Rabbi introduced "stacking".

The editing and adaptation of the related passages, especially regarding reaping and stacking, are an outgrowth of the basic change. The chronological order of the texts we are discussing and their various emendations can be stated as follows: 1. Tosefta, in its original language; 2. Mishna M'nahot; 3. Mishna P'sahim; 4. B'raita of the Talmud in its original form; 5. reworking of the B'raita in the Talmuds, including the Bavli's "Remove 'reaping' from here"; 6. adapting most of the texts of the Tosefta to the various emended forms of the B'raita in the Bavli; 6. Rashi's removal of "reaping" from the Mishna; 7. preference given to the emended forms of the Tosefta.

Thus the editorial action taken by Rabbi, both in M'nahot and P'sahim, in introducing "stacking", left its mark on all the sources, and eventually effected the original language in the Tosefta, bringing it into line with this change.

19. The Four Cups of Wine
Mishna 10:1 / Tosefta 10:1 (p. 196)
"They shall not give him less than four cups of wine". The subject of the verb in this sentence is not supplied, either in the Mishna or in the Tosefta. While the traditional commentators hold that it is the officials of the communal charity who are here described as distributing wine to the poor, modern scholars have taken this passage to refer to the servants who bring the foods of the Seder to the head of the household. Upon the basis of similar style used in other passages, support can be offered for the explanation that indeed the distribution of wine here is part of the services of communal charities. The Tosefta also strengthens this interpretation. Its description of the type and quality of wine permitted is best taken as basic standards for these officials. Concentrated, unmixed wine is reasonable as a form of distribution, but hardly understandable as the wine prescribed for drinking at the Seder, in that it is always considered a difficult and undesirable way to drink wine.

Our Mishna presents an abbreviated form of the law in the Tosefta. The first part is identical in both, but the details of wine qualities towards the end of the Tosefta passage are not recorded in the Mishna. Instead the Mishna summarizes the thrust of the earlier law briefly: "Even from the alms kitchen". This succeeds in communicating the underlying point of the original law. However, at the same time it adds to the unclear subject of the verb "they shall not give him less", in that the separate mention of charity now opens the way for explaining that verb as referring to something else.

Mentioning the four cups of wine at the beginning of the chapter is an apt introduction for the rest of the chapter, which organizes the various parts of the Seder around each cup. This literary conceit was supplied by the editor of the Mishna, and represents the post destruction practice of arranging the Seder in the form of a ceremonious banquet, where indeed cups of wine punctuated each stage.

20. The First Cup
Mishna 10:2 / Tosefta 10:2-3
The controversy of the Houses of Hillel and the Shammai as to the order of the blessings appears in its shorter form in the Mishna, both here in tractate P'sahim and also in Tractate B'rakhot, and in its longer form in the Tosefta, again in both Tractates. In such cases of doubling, it is necessary to determine which of the two contexts is the original. For our passage, the B'rakhot context is certainly the original, containing an entire collection of such differences between the Houses. There the subject is kiddush for Sabbath and festivals in general. In that the first Seder cup is used for kiddush, the editor of the Mishna has no specific Passover ritual to discuss here, and therefore transfers the B'rakhot discussion of the order of the kiddush blessings.

Scholars have suggested that the wording of the original Mishna in P'sahim was: "They poured the first cup for him [and he recites the blessing for the day]". However, such a reconstruction is unnecessary according to the approach presented here which views the literary structure of the four cups as an original element of the later Mishna. The introduction of the structure by the later editor (Rabbi) is the immediate occasion for attaching the Houses dispute. No intermediate stages are needed.

It would be difficult to claim that the supporting arguments for the positions of the Houses cited in the Tosefta passage are later additions. They bear every mark of originality. It is the Mishna which supplies an abbreviated precis of the positions, by removing the arguments. The Tosefta preserves an older form of the controversy, with argumentation an integral part of the primary literary document.




21. ḥaroset
Mishna 10:3 / Tosefta 10:7-10
Modern scholarly interpretation of this mishna has consistently attempted to view it as describing the seder during the Second Temple period. The parenthetic note, "And in the Temple they bring before him the body of the Passover-offering", was taken as expressing the contrast between the celebration of the Passover outside of Jerusalem with that in the holy city, during that period. Also, they accepted the version of the account of R. Elazar b. R. Zadok found in the Talmuds, which places the event, and the ḥaroset it includes, in Jerusalem, and rejected the Tosefta's location of "Lod" as erroneous. Furthermore, the scholars were very disturbed by the mishna's and Tosefta's telescoped style, e.g. no object for "They brought before him", on one hand, and its repetitiveness on the other: "They brought before him" twice, and "lettuce" twice!

They key to the proper understanding of the mishna and the tosefta lies in appreciating the pervasive use in this mishna of the patterns of the elegant formal meal (Tosefta Brakhot), with its multiple cups of wine, washing of the hands, and dipping. At the Temple observation of the Paschal offering, such studied niceties would be superfluous, with the availability and priority of the legally prescribed rites: the paschal lamb, matzot, and bitter herbs. In the post-destruction period, attempts were made to fill the void of the Paschal lamb with the adaptation of the trappings of the elegant meal, and the introduction of new foods, mainly, ḥaroset. In post-destruction Lod, R. Elazar b. R. Zadok holds a minority opinion that ḥaroset had already attained the status of "mitzvah, and pressed its inclusion in the Passover celebration upon the merchants of Lod, well-known for their conservative posture.

22. "And he concludes with the blessing of Redemption"
Mishna 10:6 / Tosefta 10:9 (pp. 197-198)

The tosefta presents a dispute between the Hillelites and the Shammaites, together with the argumentation of each position. As in chapter 20, so here we maintain that this argumentation is original, and was eliminated by the editor of the Mishna as part of his regular practice.

This approach can aid in solving a crux of the mishna as to the interpretation of "And he concludes with the blessing of Redemption". Some view this as a continuation of the previous paragraph, some have assigned it to the following, and some take it as part of the diction of the tanna who presents the dispute between the Hillelites and the Shammaites, as he presents the following stage of the seder which is accepted by both Houses. However, the occurrence of these two words in the Tosefta mitigates the first two explanations, and indeed allows us to put forward a new position in place of the third. "And he concludes with the blessing of Redemption" is part and parcel of the Hillelites' law, exactly the way its position would require. This is not a position common the both Houses, in that the Shammaites did not include the Redemption blessing after the recital of the first part of Hallel.

The theoretical background of this difference of opinions is a controversy between the Houses as to which hour the Exodus from Egypt took place. According to the Hillelites noon of Nisan 15, long after the seder would be finished; according to the Shammaites about midnight. Consequently they delayed the recitation of the blessing of Redemption until the latter stages of the seder so that its recitation would correspond to the actual hour of the Exodus.