Minhagim Part I

By Rabbi Joshua Flug

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I. Introduction
a. Minhagim are an important part of daily life. Much of what we do, is defined in
some way by minhagim. Yet, the concept of minhag can be confusing. Take, for
example, the following questions:
i. Do minhagim follow one's location or one's family?
ii. Is a woman bound by her husband's minhagim after she gets married?
iii. If a person enters a yeshiva that has different minhagim/nusach than his
family's can he switch?
iv. How do we resolve the discrepancy between phrases such as "minhag Yisrael
Torah" and "minhag mevatel halacha" {} with phrases such as "minhag osios
gehinnom"? {}
b. In order to address the topic of minhagim, the minhagim need to be categorized.
There are potentially six categories of minhagim:
i. Minhagim that were accepted by a community to protect themselves from
violating a prohibition. For example, a community accepts upon themselves
to refrain from travelling to another city on Friday out of concern that they
will not be able to prepare for Shabbos properly (this minhag is mentioned in
the Gemara).
ii. Minhagim whose acceptance was not limited to a certain community, but to a
large area. The most famous example of this is Cherem D'Rabbeinu
Gershom.
iii. Minhagim that developed in order to resolve a halachic dispute. Until now,
there was no clear resolution of which opinion to follow regarding a certain
dispute, but the minhag developed to follow one of the opinions.
iv. Minhagim that introduce a new practice. Examples of this include the minhag
to takes aravos around the bimah on Sukkos, or lighting Chanukah lights in
the shul.
v. Minhagim that come to define an existing practice. For example, the various
siddurim come to define exactly which prayers one should recite and the text
of those prayers.
vi. Minhagim that developed based on a mistake.
c. The first two categories of minhagim will be discussed in this shiur outline. The next
four will be discusses in part II.
II. Minhagim designed to protect from prohibition
a. The Mishna discusses the minhag to refrain from melacha on erev Pesach before
chatzos. The Mishna states two principles: {}
 i. If you go from a place that observes this minhag to a place that doesn't, you
must accept the chumras of both places.
ii. There is a prohibition against defying the minhag of the current location
because it can cause machlokes.
b. The Gemara records the story of the people of Baishan where the local custom was to
refrain from travelling from Tzur to Tzidon on Fridays. The second generation came
to Rav Yochanan and said that the first generation was able to refrain from travelling
on Fridays, but we cannot afford to do that. R. Yochanan said that since the first
generation already accepted this practice, it cannot be undone because of the verse
(Mishlei 1:8) "Al titosh Toras Imecha". {}
c. There is a dispute among the Rishonim regarding minhagim that were accepted to
protect from prohibition:
i. Rabbeinu Asher (c. 1250-1327) is of the opinion that one can perform hataras
nedarim on such a minhag just as one can perform hataras nedarim on a neder.
{}
ii. Ramban (1194-1270) {} and Rashba (1235-1310) {} are of the opinion that
one cannot perform hataras nedarim. Rashba explains that acceptance of a
minhag is more stringent than a neder and therefore not subject to hatarah.
1. R. Chaim Halberstam (The Tzanzer Rav 1793-1876) explains that
Rashba is of the opinion that the source for the obligation to keep
minhagim is not the same source as the obligation to keep nedarim.
Rather, it is based on "Al titosh." Therefore, it has a special status and
is not subject to hatarah. {}
d. Shulchan Aruch quotes both opinions of the Rishonim, but seems to side with the
opinion of Rabbeinu Asher. There is a further dispute among the acharonim whether
the next generation can perform a hatarah: {}
i. The Gemara implies that the next generation cannot perform hatarah. This is
the opinion of R. Shmuel ben Medina (Maharashdam 1505-1589). {}
ii. R. Chizkiah de Silva (P'ri Chadash 1659-1698) writes that the next generation
is entitled to perform hatarah according to Rabbeinu Asher. {}
iii. R. Chaim Halberstam notes that perhaps Rabbeinu Asher distinguishes
between minhagim to protect from specific transgressions and minhagim
which are more general acts of piety. In the former, there is no hatarah for the
next generation. In the latter, the next generation can perform hatarah. R.
Halberstam seems to accept Rashba's opinion in general and therefore, hatarah
is not an option. {}
e. One who settles elsewhere:
 i. The Gemara quotes the opinion of Rav Ashi who notes that there is a
difference between someone who travels to another location to visit and one
who moves there. If he goes to visit, he must keep the chumras of both
places. If he moves there, he is not required to keep the chumras of the place
where he came from. {}
ii. Rabbeinu Asher writes that Rav Ashi's opinion is the normative opinion and
therefore, even if one had previous minhagim and then moved, he is not
required to keep the old minhagim and must adopt the minhagim of the new
town in which he settles. {}
iii. Rambam (1135-1204) doesn't seem to accept that approach. Rambam implies
that one always keeps the stringencies of the place where one was born, even
after one moves elsewhere. {}
1. Maharashdam explains that Rambam is of the opinion that when you
travel to a new place, you also take on their minhagim, but don't ignore
the original minhagim. {}
2. Pri Chadash adds that the reason why you can't abandon the original
minhagim is that "Al titosh" requires that one keep the minhagim of
one's father. {}
3. R. David Karliner (1828-1915) writes that Rabbeinu Asher's opinion is
that "Toras imecha" does not refer to the parents but to the rabbis of
the town. {}
4. R. Shabsai Kohen (Shach 1621-1662) notes that Rambam may only be
dealing with a situation where one left his own town but did not settle
in a new town yet. As such, he must keep his old minhagim and when
he visits a new city, he must also keep those minhagim. As a matter of
halacha, he rules that when one moves to a new town, one does not
keep the minhagim from the previous place. {}
iv. One of the famous applications of this rule is with regards to Yom Tov Sheni
Shel Galuyos. R. Aharon HaKohen M'Lunil (13th-14th century) writes that one
who travels from Israel to the Diaspora for Yom Tov should follow the model
that we follow for minhagim. Therefore, if he plans to return to Israel, he can
technically keep one day as long as he is not in the Jewish community. If he
is in the Jewish community, he must keep the chumras of the Diaspora (i.e. he
can't perform melacha). If he plans on remaining in the Diaspora, he must
keep two days of Yom Tov. {}
1. R. Yisrael M. Kagan (1838-1933) writes that the same applies to
someone who travels from the Diaspora to Israel: He must keep two
days in accordance with his minhag in the Diaspora, but he must daven
privately so as not to publicly act against the local practice. {}
 2. Nowadays, there are some who don't follow this approach. It is
beyond the scope of this shiur outline, but they basically don't treat
Yom Tov Sheni as a classic minhag. We are also more lenient to all a
minyan for people observing Yom Tov Sheni.
f. What happened to minhag hamakom in modern times?
i. Ostensibly, minhagim are location based and not family based. Yet, we find
that nowadays, people keep minhagim based on where their families
originated from. What is the reason for this?
ii. The Gemara discusses the default hours for a day laborer. The Gemara notes
that normally the hours are determined by the local custom. However, if there
is no local custom, the laborer stays until dusk but doesn't start until sunrise.
The Gemara asks how it's possible that there is no local custom and answers
that we are dealing with a new city that didn't yet establish a local custom.
The Gemara then asks: why not follow the city where they came from? The
Gemara answers that we are dealing with people who come from different
locations. {}
1. Nimukkei Yosef quotes Rashba that we see from here that if a group
of people leave one town and settle in a new town, they follow the
minhagim of the town they left. {}
2. P'ri Chadash notes that this doesn't only apply to local monetary
customs but to minhagim as well. However, he notes that this only
applies in a situation where they are the first to settle in a town. If
there is already a community established there, they must follow the
minhagim that were already established. He further states that if
people settle a town from multiple places, but majority of them come
from one place, they follow the minhagim of the majority. {}
3. R. Moshe Feinstein (1895-1986) notes that based on the Gemara, when
one cannot determine the minhag of the new inhabitants, one falls back
to the Torah law. In most cases, this means that one may be lenient
because we are dealing with a chumra, which can't be more stringent
that a din d'rabanan, where we are lenient in cases of doubt. The only
time the minhag will carry over to the new place is in a situation where
majority of the inhabitants come from places that observed a specific
minhag. {}
iii. R. Yosef Karo (1488-1575) has two different discussions about Ashkenazim
who settle in Sefardic communities or vice versa:
1. In the first scenario, a group of Ashkenazim come and settle in a
Sefardic community and integrate into the Sefardic community. R.
Karo writes that the Ashkenazim must take on Sefardic customs, even
if they are now the majority and certainly if they are the minority. {}
 2. In the second scenario, there is a group of Sefardim who have their
own shul and a larger group of Ashkenazim who also have their own
shul. R. Karo rules that the Sefardim are not bound by the minhagim
of the Ashkenazim because we treat each shul as its own entity. {}
iv. This distinction is accepted by the Poskim
1. Maharashdam writes that if a group of people move into town, they
can decide to either accept the preexisting minhagim of the town or
choose to be a separate kehillah. {}
2. P'ri Chadash qualifies Maharashdam's ruling to a case where the group
who moves in remain a distinct kehillah. If they decide to integrate
with the existing community, even if they are majority, they cannot
influence the minhagim of the existing community. {}
3. Mishna Berurah defines a separate kehillah as a group that has its own
separate infrastructure, such as a rabbi, daily minyanim and its own
mikveh. If it relies on the existing infrastructure for its needs, it must
adopt their minhagim. {}
4. R. Moshe Feinstein observes that in America, most people follow the
minhagim of their origins in Europe. {}
a. In the teshuva we quoted previously, it seems that his
justification is based on the fact that we treat America as a new
place with people from all different places and therefore, they
keep their own minhagim.
b. He reiterates this point regarding the different minhagim of
which days of sefirah to observe aveilus. {}
5. R. Avraham Yeshaya Karelitz (Chazon Ish 1878-1953) writes that if a
town had certain minhagim but was later destroyed or abandoned,
when new inhabitants resettle the area, they are not bound by the
original minhagim. Therefore, although we have sources that indicate
that the minhag was to follow Rambam's position in Israel during the
time of R. Karo, we are no longer bound by that minhag because there
were many years where there were no communities established in
Israel. {}
6. R. Ovadia Yosef writes that in Israel, R. Yosef Karo is considered the
absolute posek and its inhabitants follow his minhagim. {}
a. It is unclear whether he disagrees with Chazon Ish and
maintains that once certain minhagim are established in an
area, those minhagim remain, even if there is a lapse in
inhabitants or whether he is of the opinion that Sefardim were
 the first to settle Israel in modern times and they established R.
Karo as the posek for Israel.
g. Is a wife bound by her husband's minhagim?
i. R. Shimon ben Tzemach (1361-1444) writes that when a woman gets married,
she follows the minhagim of her husband because if she were to keep her
father's minhagim it would lead to dispute and they wouldn't be able to eat the
same food. {}
1. It's important to note that he is not dealing with minhagim that are
based on a chumra. Rather, he is dealing with minhagim that provide
a resolution to a dispute. This will be discussed in Part II.
ii. R. Moshe Feinstein writes that a woman who gets married is comparable to
one who leaves one place and settles elsewhere. Since she now lives in her
husband's home, she abandons her father's minhagim and adopts her husband's
minhagim. {}
iii. R. Moshe Shternbuch quotes the Chazon Ish that if her family has a certain
chumra and she would like to keep it after she is married, she may do so if it
doesn't negatively affect him. {}
iv. There is an interesting discussion about a couple with an Ashkezazi husband
and a Sefardi wife (or vice versa) that decide to get divorced. Should the
giving of the get follow Ashkenazi custom or Sefardi custom?
1. R. Moshe ibn Chabib (1654-1696) writes that we follow the husband's
minhagim because it is his mandate to divorce her. [I.e. the Torah
states that he writes her a bill of divorce.] {}
2. According to R. Feinstein, it is arguable that until she moves back into
her father's house or joins another community, she still follows the
husband's minhagim.
III. Minhagim that were instituted across a wide spectrum of Judaism
a. Rabbeinu Nissim (1320-1380) writes that there is a special status regarding minhagim
that were instituted across a wide spectrum of Judaism. For this reason, he writes that
one who was born in a place where the Cherem D'Rabbeinu Gershom was practiced,
he may not marry a second wife if he moves to a place where they don't follow
Cherem D'Rabbeinu Gershom. He explains that if a minhag was accepted with intent
that if the "beis din hagadol" institutes in a way that it would be accepted all over and
on all future generations, one must keep the practice even if he moves to a place that
is not under the jurisdiction of this beis din. {}
i. R. Yitzchak ben Sheshes (Rivash 1326-1408) adopts the same position and
assumes that the critical factor is whether the minhag was instituted to
specifically be binding on the children. {}
b. R. Pinchas Yosef Mizrachi (18th Century) applies this to the minhag of Ashkenazim to
refrain from eating rice on Pesach. He notes that this was not just a local minhag, but
it was widespread throughout Ashkenazi Jewry. As such, one who moves to a place
where they keep Sefardic customs must still observe this minhag. {}
i. He notes that a woman who was Ashkenazi who marries a Sefardi is not
required to continue the minhag because it is well known that women accept
their husbands' minhagim and therefore, the original institution never required
women to keep the minhag if they married out.
ii. R. Ovadia Yosef writes that the minhag of refraining from rice does not have
the status of a widespread minhag and therefore, one who moves may change
their minhag. {}
iii. R. Menachem M. Schneersohn (1789-1866) in addressing the issues of hataras
nedarim on the minhag to refrain from eating kitniyos, notes that the minhag
is not just a local minhag and therefore has a special status. Therefore,
hatarah does not work. {}
 ‫‪ .7‬שו"ת הרשב"א ג‪:‬רלו‬ ‫‪ .1‬שו"ת הרשב"א ה‪:‬רפו‬

‫‪ .2‬תשובות בעלי התוספות ס' יא‬

‫‪ .8‬שו"ת דברי חיים יו"ד א‪:‬מח‬ ‫‪ .3‬פסחים נ‪.‬‬

‫‪ .4‬פסחים נ‪:‬‬

‫‪ .9‬שלחן ערוך יו"ד ריד‪:‬א‬

‫‪ .5‬רא"ש פסחים ד‪:‬ג‬

‫‪ .10‬מהרשד"ם יו"ד ס' מ‬

‫‪ .6‬רמב"ן‪ -‬מלחמות ה' פסחים פרק ד'‬

‫שהלך לשם‪ .‬ואע"פ כן לא יתראה בפניהם‬ ‫‪ .11‬פרי חדש מנהגי איסור ס' ח‬
‫שהוא בטל מפני האסור‪ .‬לעולם אל ישנה‬
‫אדם מפני המחלוקת‪ .‬וכן מי שדעתו לחזור‬
‫למקומו נוהג כאנשי מקומו בין להקל בין‬
‫להחמיר‪ .‬והוא שלא יתראה בפני אנשי‬
‫המקום שהוא בו מפני המחלוקת‪.‬‬

‫‪ .16‬שו"ת מהרשד"ם או"ח ס' טו‬

‫‪ .17‬פרי חדש או"ח ס' תסח‬

‫‪ .12‬דברי חיים יו"ד א‪:‬מח‬

‫‪ .18‬שאילת דוד קונטרס המנהגים אות ג'‬

‫‪ .13‬פסחים נא‪.‬‬

‫‪ .14‬רא"ש פסחים ד‪:‬ד‬

‫‪ .19‬ש"ך יו"ד ריד‪:‬ז‬

‫תימה דכאן כתב כדברי הריב"ש סי' צ"ט‬
‫שהוציא כן מן הש"ס פ"ק דחולין )דף י"ח(‬
‫גבי הא דמשני רבי זירא אין דעתו לחזור‬
‫הוי והוא ע"פ שיטת התו' והרא"ש ר"פ‬
‫מקום שנהגו וכן דעת הר"ן שם והטור‬
‫בא"ח סי' תס"ח וכ"כ הט"ו בא"ח ר"ס‬
‫תקע"ד ההולך למקום שאין מתענין ממקום‬
‫שמתענין ודעתו לחזור צריך להתענות כו'‬ ‫‪ .15‬רמב"ם הל' יו"ט ח‪:‬כ‬
‫אלמא דאם אין דעתו לחזור א"צ להתענות‬ ‫ההולך ממקום שעושין למקום שאין עושין‬
‫ובא"ח סי' תס"ח ס"ד העתיק המחבר דברי‬ ‫לא יעשה ביישוב מפני המחלוקת אבל‬
‫הרמב"ם שבסוף הל' יו"ט ונראה מדבריו‬ ‫עושה הוא במדבר‪ .‬וההולך ממקום שאין‬
‫דאפי' אין דעתו לחזור נותנין עליו חומרי‬ ‫עושין למקום שעושין לא יעשה‪ .‬נותנין עליו‬
‫מקום שיצא משם והיינו על פי הסוגיא‬ ‫חומרי מקום שיצא משם וחומרי מקום‬
 ‫‪ .23‬נמוקי יוסף ב"מ נב‪.‬‬ ‫דר"פ מקום שנהגו וכן נראה מדברי הרב‬
‫המגיד שם שכן דעת רמב"ם ע"ש ולא‬
‫הביא שם המחבר ולא הרב סברת הרא"ש‬
‫וסייעתו כלל )ובב"י שם לא הביא רק‬
‫סברת הרא"ש וסייעתו ולא זכר דעת‬
‫הרמב"ם כלל( ואפשר דעת המחבר לחלק‬
‫בין אין דעתו לחזור ומ"מ אין דעתו‬
‫להשתקע בעיר שהלך לשם רק במקום‬
‫אחר ובהך גוונא מיירי בא"ח סי' תס"ח ובין‬
‫דעתו להשתקע במקום שהלך שם ובהכי‬
‫מיירי שם סי' תקע"ד וכאן וצ"ע ולענין דינא‬
‫נראה כסברת הרא"ש וסיעתו דלעולם יש‬
‫‪ .24‬פרי חדש מנהגי איסור ס' יט‬ ‫לו לעשות כמנהג המקום שדעתו להשתקע‬
‫שם בין לקולא בין לחומרא‪.‬‬
‫‪ .20‬אורחות חיים הל' ערבי פסחים ס' ה‬

‫‪ .21‬משנה ברורה תצו‪:‬יג‬

‫‪ .22‬בבא מציעא פג‪ :‬ורש"י‬

 ‫‪ .27‬שו"ת אבקת רוכל ס' לב‬ ‫‪ .25‬אגרות משה יו"ד ב‪:‬טו‬

‫‪ .28‬שו"ת מהרשד"ם יו"ד ס' מ‬

‫‪ .26‬שו"ת אבקת רוכל ס' ריב‬

‫‪ .29‬פרי חדש מנהגי איסור ס' יט‬

 ‫‪ .34‬יחוה דעת א‪:‬יב‬ ‫‪ .30‬ביאור הלכה תסח‪:‬ה‬

‫‪ .35‬תשב"ץ ג‪:‬קעט‬

‫‪ .31‬אגרות משה או"ח א‪:‬קנח‬

‫‪ .36‬אגרות משה או"ח א‪:‬קנח‬

‫‪ .37‬תשובות והנהגות ב‪:‬רלא‬

‫‪ .32‬אגרות משה או"ח א‪:‬קנט‬

‫‪ .33‬חזון איש שביעית כג‪:‬ה‬

‫‪ .38‬גט פשוט קכט‪:‬קמב‬

‫‪ .41‬שו"ת אדמת קודש או"ח ב‪:‬ב‬ ‫‪ .39‬שו"ת הר"ן ס' מח‬

‫‪ .40‬שו"ת הריב"ש ס' שצט‬

‫‪ .42‬יביע אומר או"ח ה‪:‬לז‬

‫‪ .43‬שו"ת צמח צדק או"ח ס' נו‬