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Chagigah, 26

1) THIEVES AND TAX-COLLECTORS

QUESTION: The Gemara asks a contradiction between our Mishnah and the Mishnah in Taharos. Our Mishnah states that if tax-collectors (Gabai'm) or thieves (Ganavim) entered a house, they are believed to say that they did not touch anything (and the items in the house are Tahor). The Mishnah in Taharos (7:6), however, says that if tax-collectors enter a house, the entire house is Tamei, implying that it does not matter what they say; they are not believed to say that they did not touch anything.

The Gemara answers that the two Mishnayos are referring to two different cases, as Rashi explains. The Mishnah in Taharos is referring to when a Nochri accompanies the tax-collectors, in which case they are not believed to say that they did not touch anything in the house. Our Mishnah is referring to when there is no Nochri with the tax-collectors, in which case they are believed to say that they did not touch anything.

The Gemara asks what difference does it make if there is a Nochri accompanying them. The answer: they check the house more thoroughly either because they are either afraid of the Nochri himself, or because they are afraid that the Nochri will report back to their superior, who will punish them for not searching thoroughly.

Why does the Gemara not explain simply that if there is a Nochri with them, then everything in the house is Tamei because the *Nochri* might have touched it? The Nochri has the status of a Zav and is Metamei whatever he touches. Why does the Gemara say that it was the tax-collectors who touched the items because they are afraid of the Nochri? (SI'ACH YITZCHAK)

Second, the Gemara explains that the Mishnah in Taharos, which says that the house is Tamei, refers to a case when there is a Nochri accompanying the tax-collectors. The Gemara cites support for this from the Mishnah later in Taharos that says that when there is Nochri with them, they are not believed to say that they entered the house but did not touch anything.

This support that the Gemara cites is actually the *end* of the Mishnah that says (in the Reisha) that tax-collectors are not believed; the Mishnah there goes on to say that "if there is a Nochri with them, they are believed to say that they did not enter the house, but they are not believed to say that they entered the house but did not touch anything." How, then, can our Gemara say that the beginning of that Mishnah in Taharos is referring to when there is a Nochri with them? The Seifa of the Mishnah mentions that there is a Nochri, implying that the in the Reisha there is no Nochri, and yet the tax-collectors are still not believed!

ANSWERS:

(a) According to the way Rashi explains the Gemara, the questions can be addressed as follows:

Regarding the first question, that the house should be Tamei because of the possibility that the Nochri touched everything, we can answer that the Mishnah in Taharos implies that it is only the Jewish tax-collectors whom we suspect of touching the items in the house. The Mishnah says that "the tax-collectors accompanied by a Nochri are not believed to say that *they* did not touch," implying that we only suspect the Jews of touching. The Jewish workers search the house; the Nochri is only supervising.

Regarding the second question, how the Gemara can say that the Reisha of the Mishnah in Taharos is talking about when there is a Nochri if the Seifa there is talking about a Nochri, the TIFERES YISRAEL (Boaz #6) suggests that the Reisha of the Mishnah should be read together with the words that follow, "The entire house is Tamei_if_there_is_a_Nochri_with_them (Im Yesh Nochri Imahen)," and thus it is saying that the house is Tamei only *if there is a Nochri with them*. (The Mishnah there continues and says that if we ask them whether they touched the items in the house or not, and they say that they did not enter in the first place, then they are believed, but if they say that they went in but did not touch, they are not believed.)

Alternatively, the Reisha might be talking about when we did not ask the tax-collectors whether the house is Tahor or Tamei, and thus we must assume that they did touch things in the house. If so, what was the Gemara's question from the Mishnah in Taharos in the first place? The Gemara could have simply answered that the Mishnah in Taharos says that the house is Tamei because we did not ask them whether they touched anything or not (while our Mishnah says that the house is Tahor, because we asked them and they said it was Tahor)!

The answer is that the Gemara thought that when the Mishnah in Taharos says "When accompanied by a Nochri, the tax-collectors are believed to say that they did not enter the house," it means that we only believe them that they *did not enter* because the Nochri's presence reinforces their claim that they did not go in and touch anything. Initially, the Gemara thought that only when there is a Nochri are they *believed* to say that they did not enter the house. If so, that Mishnah contradicts our Mishnah, which asserts that the tax-collectors are believed even without a Nochri. In its answer, the Gemara says that the Nochri is not necessary to prove that they did *not* touch anything. To the contrary, only when there is a Nochri are they *not believed* to say that they entered but did not touch anything. The Nochri impairs their trustworthiness. But when there is no Nochri with them, they are believed to say that they entered the house but did not touch anything, like our Mishnah says.

(b) RABEINU CHANANEL has an original approach to the Mishnah and Gemara, which is also the view of the RAMBAM (in Perush ha'Mishnayos and in Hilchos Mishkav u'Moshav 12:12), according to which our questions do not begin.

Rabeinu Chananel learns that when the tax-collectors are accompanied by a Nochri, they are *believed* to say that they did not touch anything in the house. The Nochri actually reinforces their trustworthiness to say that they *did not* touch anything. This is because he makes sure that they maintain their professional etiquette and do not go rummaging around the house. His Girsa in the Gemara was the Girsa of the Mishnah in Taharos as it appears printed in the Vilna Shas, which says that "if there is a Nochri with them, they *are* believed to say that they entered but did not touch."

According to this approach, when the Gemara asks why the presence of a Nochri affects the trustworthiness of the tax-collectors, we cannot ask that perhaps the Nochri himself touched the items in the house, because the presence of the Nochri gives more reason to say that the house is *Tahor* and not Tamei!?

Also, regarding the second question -- how can the Gemara say that the Reisha of the Mishnah in Taharos is referring to when there is a Nochri with them -- according to Rabeinu Chananel this is no question. The Gemara is saying that in the Mishnah in Taharos, there *is no* Nochri with them, and that is why they are not believed. Our Mishnah, which says that they are believed, is referring to when there *is* a Nochri with them.

According to this explanation, though, what is the Gemara's next question? Our Mishnah says that thieves are trusted to say that they did not touch any other items in the house. The Gemara asks that the Mishnah in Taharos says that wherever the thieves walked in the house, the house is Tamei. According to Rabeinu Chananel, how can the Gemara suggest that the house should be Tahor when visited by thieves, if the only reason to believe uninvited guests is because a Nochri accompanies them, ensuring that they limit their activities to official business? When thieves come into a house, there is no official business, and there certainly is no Nochri accompanying the thieves making sure that they fulfill their duty! The house should certainly be Tamei!

Rabeinu Chananel and the Rambam seem to have different approaches to the Gemara at this point. Rabeinu Chananel is bothered by this question, and he explains that before asking about the contradiction between the Mishnayos with regard to thieves, the Gemara already inferred from our Mishnah that only thieves *who returned* the items that they stole are believed, but thieves who did not return what they stole are not believed, and the entire house is Tamei (because we assume that they touched the contents of the house). The Gemara is asking how could our Mishnah imply that if they did not return the stolen items, the whole house is Tamei, while the Mishnah in Taharos says that only where they walked is the house Tamei.

To that the Gemara answers that even after the thieves have done Teshuvah, the place where they walked is Tamei. The Mishnah in Taharos is referring to when they did Teshuvah, and thus the place where they walked is Tamei, as the Mishnah there states, but the rest of the house is Tahor. In our Mishnah, also, they are not trusted for the place where they walked and it will be Tamei, but they are trusted with regard to the rest of the items in the house. According to Rabeinu Chananel, therefore, when thieves have been in one's home, there is always Tum'ah -- either the entire house is Tamei (when they did not do Teshuvah), or only where they walked is Tamei (when they did Teshuvah).

The Rambam explains differently. The only time a Nochri is necessary to ensure their trustworthiness is when they are tax-collectors. Without a Nochri supervising them, the tax-collectors would feel at liberty to roam around the house and rummage through whatever catches their interest. In contrast, thieves work on a tight schedule. They never touch what they do not need to touch, because they are in a rush, and they go about their crime quickly and efficiently, touching only what they take.

According to the Rambam, therefore, if the thieves did Teshuvah, the whole house will be Tahor, and if they did not do Teshuvah, only where they walked is Tamei. (This conclusion is the same as Rashi's conclusion.)

SUMMARY: An Am ha'Aretz is normally not trusted to attest to the Taharah of an object. We assume that all of his food and utensils are Tamei. The Mishnayos in Chagigah teach us that there are four types of exceptions to this general rule.

1. An Am ha'Aretz is trusted during the wine and oil pressing seasons to say that his Terumah is Tahor.

2. An Am ha'Aretz is trusted all year long to say that his Kodesh is Tahor.

3. An Am ha'Aretz is trusted regarding the Taharah of the earthenware utensils that he vends. He is trusted as far away from Yerushalayim as Modi'im with regard to the small ones, and he is trusted only in Yerushalayim with regard to the large ones.

4. During each festival, when the entire Jewish nation gathers together in Yerushalayim, the Am ha'Aretz is trusted completely with regard to his Taharah, just like a Chaver.

Although Rashi does not list logical reasons for all of these exceptions, we find reasons given for them in the other Rishonim:

1. The reason why an Am ha'Aretz is trusted, during the wine and oil pressing seasons, to say that his Terumah is Tahor, is because he plans to give the Terumah to the Kohanim, and therefore he is careful to listen to the Chachamim and immerse all of his utensils, as the Chachamim required (RASHI 22a, DH Lo Mekablinan).

2. An Am ha'Aretz is believed regarding his Kodesh, because "Eimas Kodesh Alav" (TOSFOS 24b, DH sh'b'Yehudah), the "awe of Kodesh is upon him," meaning that he has respect for items of such holiness.

3. RABEINU CHANANEL (26a) and the RAMBAM explain that an Am ha'Aretz is believed regarding earthenware vessels because such vessels are very scarce in Yerushalayim (since kilns may not be built, in order to prevent air pollution in the holy city), and thus people take extra care that the earthenware vessels not become Tamei (because once they become Tamei, they cannot be made Tahor again and must be destroyed).

4. The RAMBAM (Hilchos Metamei Mishkav u'Moshav 11:9) writes that during the festival an Am ha'Aretz is Tahor, because prior to the festival everyone is Metaher himself in preparation for the Yom Tov (Rosh Hashanah 16b).

However, it is clear from the Gemara that despite the reasons listed above, we do not place our full trust in Amei ha'Aretz with regard to Tum'ah and Taharah in these situations. We find, for instance, that if someone opened his barrel to sell wine or flour during the festival, once the festival passes it is all considered Tamei because of the Amei ha'Aretz who touched it during the festival, and that the Kohanim would have to be Metaher the Azarah after the Regel. Similarly, the pot-sellers are only trusted in Modi'im if they are traveling in a different direction than the Chaver. It must be that the Chachamim trusted Amei ha'Aretz in these situations only out of necessity, and they lent support to their Takanah to trust the Amei ha'Aretz with the reasons cited above.

Why did they feel it *necessary* to trust the Amei ha'Aretz in the above situations?

1. Rashi (25b, DH u'v'Mele'in) says that with regard to Terumah, if the Chachamim were to uphold their decree that all of the items of an Am ha'Aretz are Tamei, the Kohanim would lose out considerably, since they would not be able to accept the Terumah being brought to them by the Amei ha'Aretz. Therefore, the Chachamim suspended their decree during the wine and oil pressing seasons.

2. The Gemara (22a) says with regard to trusting an Am ha'Aretz with Kodesh, that the Chachamim only trusted the Am ha'Aretz "so that they not go and build a Bamah for themselves," for if we were not to accept their items of Kodesh out of doubt that they are Tamei, it would create enmity and lead to worse transgressions.

3. The Amei ha'Aretz were trusted in and near Yerushalayim with regard to earthenware vessels due to the scarcity of such vessels around Yerushalayim. (RASHI 26a DH she'Ein, and Rambam in Perush ha'Mishnah ibid.)

4. During the Regel, because all of Klal Yisrael gathers in one small area, it would physically impossible for the Chaverim to separate themselves and all of their utensils and clothes from the Amei ha'Aretz. Besides, such practice during the Regel would undoubtedly cause a major rift in Israel.

In short, because of the necessity of the situation, the Chachamim relied on the supplementary reasons listed above to trust an Am ha'Aretz.

26b