We begin with the following Mishnah on דף נ״ט עמוּד ב. Up to this point we’ve elaborated alot on the categories of damage classified as שׁוֹר and בּוֹר, and for the rest of this perek we’re going to concentrate on the category of אֵשׁ:
הַשּׁוֹלֵחַ אֶת הַבְּעֵרָה בְּיַד חֵרֵשׁ שׁוֹטֶה וְקָטָן – פָּטוּר בְּדִינֵי אָדָם, וְחַיָּיב בְּדִינֵי שָׁמַיִם. שִׁלַּח בְּיַד פִּקֵּחַ – הַפִּקֵּחַ חַיָּיב
One who sends a fire, i.e., places a burning object, in the hand of a חֵרֵשׁ שׁוֹטֶה וְקָטָן is פָּטוּר for any damage later caused by the fire פָּטוּר בְּדִינֵי אָדָם, but חַיָּיב according to דִינֵי שָׁמַיִם. If he sent it in the hand of a halachically competent person, the halachically competent person is liable, not the one who sent him. You may want to glance back a the Daf we did last week, when we discussed חֵרֵשׁ שׁוֹטֶה וְקָטָן in the context of halachic competence. In addition, here is an excellent article on a reappraisal of deafness in halacha.
ArtScroll has extensive notes here, so let’s have a look. The Mishnah refers to a case where someone hands something incendiary to a חֵרֵשׁ שׁוֹטֶה וְקָטָן, who cannot be relied upon to guard it properly, or to refrain from setting something on fire with it. Sure enough, the חֵרֵשׁ שׁוֹטֶה וְקָטָן took the flammable source and to the property (such as a stack of grain) of a third party and set it ablaze. Although the first person caused the damage to take place, this is merely “גְרָמָא”, or indirect causation, for which he is פָּטוּר בְּדִינֵי אָדָם.
Even if the first person actually instructed the חֵרֵשׁ שׁוֹטֶה וְקָטָן to set the fire, he is פָּטוּר בְּדִינֵי אָדָם. Why is that? Didn’t we learn that in general, when one person instructs another to perform an action on his behalf, we apply the rule of שֽׁלוּחוֹ שֶׁל אָדָם כְּמוֹתוֹ? ArtScroll cites a Tosafos in Bava Metzia that a חֵרֵשׁ שׁוֹטֶה וְקָטָן does not qualify as a שָׁלִיחַ. But in any event, the חֵרֵשׁ שׁוֹטֶה וְקָטָן who set the fire is פָּטוּר (even בְּדִינֵי שָׁמַיִם) since in view of his mental inadequacy his is not responsible for his actions.
The Mishnah continues:
אֶחָד הֵבִיא אֶת הָאוּר וְאֶחָד הֵבִיא אֶת הָעֵצִים – הַמֵּבִיא אֶת הָעֵצִים חַיָּיב. אֶחָד הֵבִיא אֶת הָעֵצִים וְאֶחָד הֵבִיא אֶת הָאוּר – הַמֵּבִיא אֶת הָאוּר חַיָּיב.
If one person brought the fire, and one other person subsequently brought the wood, causing the fire to spread, the one who brought the wood is liable for any damage caused. Conversely, if one person first brought the wood, and subsequently one other person brought the fire, the one who brought the fire is liable, since it was he who actually kindled the wood.
And the Mishnah concludes:
בָּא אַחֵר וְלִיבָּה – הַמְלַבֶּה חַיָּיב. לִיבְּתָה הָרוּחַ – כּוּלָּן פְּטוּרִין.
If another came and fanned the flame, and as a result the fire spread and caused damage, the one who fanned it is liable, since he is the proximate cause of the damage. If the wind fanned the flames, all the people involved are פָּטוּר, since none of them actually caused the damage.
The Gemara elaborates on the Mishnah:
אָמַר רֵישׁ לָקִישׁ מִשְּׁמֵיהּ דְּחִזְקִיָּה: לֹא שָׁנוּ אֶלָּא שֶׁמָּסַר לוֹ גַּחֶלֶת וְלִיבָּהּ, אֲבָל מָסַר לוֹ שַׁלְהֶבֶת – חַיָּיב, מַאי טַעְמָא? מַעֲשָׂיו קָא גָרְמוּ לוֹ
רֵישׁ לָקִישׁ says in the name of חִזְקִיָּה: They taught that one who sends fire in the hand of a חֵרֵשׁ שׁוֹטֶה וְקָטָן is פָּטוּר only when he gave him a glowing coal and one of these people fanned it himself and set it alight. But if gave a torch to a חֵרֵשׁ שׁוֹטֶה וְקָטָן, the one who gave it to him is חַיָיב. What is the reason for this halacha? The action of the one who gave it to him directly caused the fire to spread.
וְרַבִּי יוֹחָנָן אָמַר: אֲפִילּוּ מָסַר לוֹ שַׁלְהֶבֶת – פָּטוּר, מַאי טַעְמָא? צְבָתָא דְחֵרֵשׁ גָּרְמָה לוֹ. וְלָא מִחַיַּיב עַד שֶׁיִּמְסוֹר לוֹ גְּווֹזָא
And רַבִּי יוֹחָנָן says: Even if he handed a flame to him, he is פָּטוּר. What is the reason? It is the tongs of the חֵרֵשׁ that caused the damage, since flames do not cause fires on their own. And the one who gives dangerous objects to a חֵרֵשׁ is not rendered liable for the damage caused, unless he hands branches to him …
סִלְתָּא, שְׁרָגָא, דְּהָהוּא וַדַּאי מַעֲשֵׂה דִידֵיהּ גָּרְמוּ
… of thin wood and a candle, since in that case his own action, i.e., that of the one who sent the flame, definitely caused the fire to spread.
שִׁלַּח בְּיַד פִּקֵּחַ – הַפִּקֵּחַ חַיָּיב וְכוּ׳. אָמַר רַב נַחְמָן בַּר יִצְחָק: מַאן דְּתָנֵי ״לִיבָּה״ לָא מִשְׁתַּבַּשׁ, וּמַאן דְּתָנֵי ״נִיבָּה״ לָא מִשְׁתַּבַּשׁ.
The Mishnah teaches that if one sent a fire in the hand of a halachically competent person, the halachically competent person is liable…If another came and fanned the flame the one who fanned it is liable. רַב נַחְמָן בַּר יִצְחָק says with regard to the correct text of the Mishnah: The one who teaches it using the word fanned is not mistaken, and the one who teaches it using the word blew is not mistaken.
The Gemara continues with a stretch that explains that hold someone accountable to the extent that his actions were capable of causing a fire independently, or whether an act of nature such as a gust of wind was required to kindle the fire that did the damage. Tosafos comments that if it was a wind that could have been anticipated to occur, he is חַיָיב; but if not then he is פָּטוּר:
ליבה ולבתה הרוח אם יש בליבויו כדי ללבות חייב ואם לאו פטור – בשאין ברוח בפני עצמו כדי ללבות מיירי דאי בשיש בו כדי ללבות אפילו כשיש בליבוי המלבה כדי ללבות למה יתחייב דבלאו איהו נמי היה הולך ומזיק אלא ודאי כשאין ברוח כדי ללבות מיירי
That brings us to the next Mishnah, which is a brief one:
הַשּׁוֹלֵחַ אֶת הַבְּעֵרָה, וְאָכְלָה עֵצִים אוֹ אֲבָנִים אוֹ עָפָר – חַיָּיב; שֶׁנֶּאֱמַר: ״כִּי תֵצֵא אֵשׁ וּמָצְאָה קֹצִים, וְנֶאֱכַל גָּדִישׁ אוֹ הַקָּמָה אוֹ הַשָּׂדֶה, שַׁלֵּם יְשַׁלֵּם הַמַּבְעִר אֶת הַבְּעֵרָה״
If one sends forth a fire, i.e., allows it to escape, and it consumes wood, or stones, or earth, he is חַיָיב, as it is stated: “If a fire breaks out, and catches in thorns, so that a stack of grain, or standing grain, or the field, is consumed, the one who kindled the fire shall pay compensation” (כִּֽי־תֵצֵ֨א אֵ֜שׁ וּמָצְאָ֤ה קֹצִים֙ וְנֶאֱכַ֣ל גָּדִ֔ישׁ א֥וֹ הַקָּמָ֖ה א֣וֹ הַשָּׂדֶ֑ה שַׁלֵּ֣ם יְשַׁלֵּ֔ם הַמַּבְעִ֖ר אֶת־הַבְּעֵרָֽה – Shemos 22:5), which teaches that he is liable also for destroying the field itself.
The Gemara explains:
אָמַר רָבָא: לְמָה לִי דִּכְתַב רַחֲמָנָא ״קוֹצִים״, ״גָּדִישׁ״, ״קָמָה״ וְ״שָׂדֶה״
With regard to the pasuk cited in the Mishnah, רָבָא says: Why do I need הקבּ״ה to write in the Torah all of these terms: ״קוֹצִים״, ״גָּדִישׁ״, ״קָמָה״ וְ״שָׂדֶה״, which seem to be redundant? The Gemara proceeds to explain why you need each of them.
Let’s zoom ahead to a stretch of aggadata:
אָמַר רַבִּי שְׁמוּאֵל בַּר נַחְמָנִי אָמַר רַבִּי יוֹנָתָן: אֵין פּוּרְעָנוּת בָּאָה לָעוֹלָם אֶלָּא בִּזְמַן שֶׁהָרְשָׁעִים בָּעוֹלָם, וְאֵינָהּ מַתְחֶלֶת אֶלָּא מִן הַצַּדִּיקִים תְּחִלָּה
רַבִּי שְׁמוּאֵל בַּר נַחְמָנִי says in the name of רַבִּי יוֹנָתָן: Calamity befalls the world only when wicked people are in the world, but the calamity begins only with the righteous first. It’s as if the existence of outstanding Gedolim in the world has a protective effect against calamity. (In due time, history will place the impact of losing the protective effect of R’ Chaim Kanievsky in אֶרֶץ יִשְׂרָאֵל in 2022 into proper context). Rabbi Stern mentioned that he heard that the Chazon Ish commented that there were three great Gedolim who passed away around 1940, precipitating the loss of many Jewish lives, particularly in Vilna, as the horrors of WWII were unleashed:
#1: Rav Boruch Ber Leibowitz in 1939.
#2: Rav Shimon Shkop in 1939.
#3: Rav Chaim Ozer Grodzinski in 1940.
Rav Grodzinksi (on the right) in conversation with Rav Shkop.
This is echoed by an article in The Yeshiva World which relates:
“Immediately before the holocaust, Rav Shimon Shkop zt”l had passed away on October 22nd, 1939. Twenty six days later, on November 17th, 1939, Rav Boruch Ber Leibowitz passed away. According to Rav Chaim Avrohom Pincus (Mashgiach in Yeshiva Torah VaDaas and Mir Talmid in Europe) and Rav Yonah Bromberg, upon hearing of Rav Boruch Ber’s passing, Rav Chaim Ozer Grodzinsky remarked, “Now that Rabbi Shimon and Rabbi Boruch Ber are gone, the Ameilus baTorah that has protected the generation is also gone. I am worried that the way now will be open for the accursed Germans.” On August 9th, 1940, Rav Chaim Ozer Grodzinsky zt”l himself passed away. Three shepherds of Klal Yisroel had died. Six days later, Adolf Eichmann y”s sets into motion a plan to murder the Jews of Europe.”
The Gemara continues:
לְעוֹלָם יִכָּנֵס אָדָם בְּ״כִי טוֹב״ וְיֵצֵא בְּ״כִי טוֹב״, שֶׁנֶּאֱמַר: ״וְאַתֶּם לֹא תֵצְאוּ אִישׁ מִפֶּתַח בֵּיתוֹ עַד בֹּקֶר״
A person should always enter an unfamiliar city at a time of good, i.e., while it is light, as the Torah uses the expression “It is good” with regard to the creation of light (וַיַּ֧רְא אֱלֹהִ֛ים אֶת־הָא֖וֹר כִּי־ט֑וֹב וַיַּבְדֵּ֣ל אֱלֹהִ֔ים בֵּ֥ין הָא֖וֹר וּבֵ֥ין הַחֹֽשֶׁךְ – Bereishis 1:4). This goodness is manifest in the sense of security one feels when it is light. And likewise, when one leaves a city he should leave at a time of good, meaning after sunrise the next morning, as it is stated in the pasuk: “And none of you shall go out of the opening of his house until the morning” (וּלְקַחְתֶּ֞ם אֲגֻדַּ֣ת אֵז֗וֹב וּטְבַלְתֶּם֮ בַּדָּ֣ם אֲשֶׁר־בַּסַּף֒ וְהִגַּעְתֶּ֤ם אֶל־הַמַּשְׁקוֹף֙ וְאֶל־שְׁתֵּ֣י הַמְּזוּזֹ֔ת מִן־הַדָּ֖ם אֲשֶׁ֣ר בַּסָּ֑ף וְאַתֶּ֗ם לֹ֥א תֵצְא֛וּ אִ֥ישׁ מִפֶּֽתַח־בֵּית֖וֹ עַד־בֹּֽקֶר – Shemos 12:22).
Let’s zoom ahead to finish with this:
תָּנוּ רַבָּנַן: דֶּבֶר בָּעִיר – כַּנֵּס רַגְלֶיךָ, שֶׁנֶּאֱמַר: ״וְאַתֶּם לֹא תֵצְאוּ אִישׁ מִפֶּתַח בֵּיתוֹ עַד בֹּקֶר״. וְאוֹמֵר: ״לֵךְ עַמִּי בֹּא בַחֲדָרֶיךָ, וּסְגוֹר דְּלָתְךָ בַּעֲדֶךָ״. וְאוֹמֵר: ״מִחוּץ תְּשַׁכֶּל חֶרֶב, וּמֵחֲדָרִים אֵימָה״
If there is plague in the city, gather your feet, i.e., limit the time you spend out of the house, as it is stated in the pasuk: “And none of you shall go out of the opening of his house until the morning.” And it says in another pasuk: “Come, my people, enter into your chambers, and shut your doors behind you; hide yourself for a little moment, until the anger has passed by” (לֵ֤ךְ עַמִּי֙ בֹּ֣א בַֽחֲדָרֶ֔יךָ וּֽסְגֹ֥ר (דלתיך) [דְּלָֽתְךָ֖] בַּעֲדֶ֑ךָ חֲבִ֥י כִמְעַט־רֶ֖גַע עַד־(יעבור)־[יַעֲבר־]זָֽעַם – Yeshaya 26:20). And it says: “Outside the sword will bereave, and in the chambers terror” (מִחוּץ֙ תְּשַׁכֶּל־חֶ֔רֶב וּמֵחֲדָרִ֖ים אֵימָ֑ה גַּם־בָּחוּר֙ גַּם־בְּתוּלָ֔ה יוֹנֵ֖ק עִם־אִ֥ישׁ שֵׂיבָֽה – Devairm 32:25).
This concept of what to do if there is a plague in the city obviously triggers thoughts about the recent global pandemic. On that note, I’m going to import the entry from Dr. Jeremy Brown at Talmudology.com related to this portion of today’s Daf, which is as follows:
By now, we are all experts in the pros and cons of quarantine and social distancing. COVID taught us that (before we became experts in containing Russia, and, more recently, in dealing with the intractable problem of peace in the Middle East). The COVID pandemic might seem like a long time ago, but we can still recall with ease the days of isolation that we had to observe, and how often the rules changed.
All of this makes today’s page of Talmud all the more interesting, since it contains the locus classicus that addresses quarantine and social distancing during a pandemic.
ת”ר דבר בעיר כנס רגליך
Our Rabbis taught: When there is an epidemic in the town keep your feet inside your house (Bava Kamma 60b.)
SOCIAL ISOLATION
There is a long history of isolating those with disease, beginning with our own Hebrew Bible:
(כל ימי אשר הנגע בו יטמא טמא הוא בדד ישב מחוץ למחנה מושבו. (ויקרא פרק יג, מו
As long as they have the disease they remain unclean. They must live alone; they must live outside the camp (Lev. 13:46).
(צו את בני ישראל וישלחו מן המחנה כל צרוע וכל זב וכל טמא לנפש. (במדבר ה, ב
Command the people of Israel to remove from the camp anyone who has a skin disease or a discharge, or who has become ceremonially unclean by touching a dead person (Num. 5:2).
These are examples of social isolation, that is, individual and community measures that reduce the frequency of human contact during an epidemic. Here, for example, are some of the ways that social distancing was enforced during the Spanish flu epidemic of 1918-1918, an outbreak that killed about 40 million people worldwide:
… isolation of the ill; quarantine of suspect cases and families of the ill; closing schools; protective sequestration measures; closing worship services; closing entertainment venues and other public areas; staggered work schedules; face-mask recommendations or laws; reducing or shutting down public transportation services; restrictions on funerals, parties, and weddings; restrictions on door-to-door sales; curfews and business closures; social-distancing strategies for those encountering others during the crisis; public-health education measures; and declarations of public health emergencies. The motive, of course, was to help mitigate community transmission of influenza.
And you certainly don’t need to be reminded of the social isolation that we all went through during the COVID pandemic. The teaching in this page of Talmud emphasizes not the isolation or removal of those who are sick, but rather the reverse – the isolation of those who are well. Of course the effect is the same: there is no contact between those who are ill and those who are well, but since there are usually many more well than there are sick, the effort and social disruption of isolation of the healthy will be much greater.
“Implementation of social distancing strategies is challenging. They likely must be imposed for the duration of the local epidemic and possibly until a strain-specific vaccine is developed and distributed. If compliance with the strategy is high over this period, an epidemic within a community can be averted. However, if neighboring communities do not also use these interventions, infected neighbors will continue to introduce influenza and prolong the local epidemic, albeit at a depressed level more easily accommodated by healthcare systems.
— Glass, RJ. et al. Targeted Social Distancing Design for Pandemic Influenza. Emerging Infectious Diseases 2006. 12: (11); 1671-1681.
It is not hard to see a relationship between expelling those who are ill and denying entry to those whose health is in doubt. In the 14th century, when Europe was ravaged by several waves of bubonic plague that killed one-third of the population, many towns enacted measures to control the disease. Around 1347 the physician Jacob of Padua advised the city to establish a treatment area outside of the city walls for those who were sick. “The impetus for these recommendations” wrote Paul Sehdev from the University of Maryland School of Medicine, “was an early contagion theory, which promoted separation of healthy persons from those who were sick. Unfortunately, these measures proved to be only modestly effective and prompted the Great Council of the City to pursue more radical steps to prevent spread of the epidemic.” And so the notion of quarantine was born. Here is Sehdev’s version of the story:
In 1377, the Great Council passed a law establishing a trentino, or thirty-day isolation period . The 4 tenets of this law were as follows: (1) that citizens or visitors from plague-endemic areas would not be admitted into Ragusa until they had first remained in isolation for 1 month; (2) that no person from Ragusa was permitted go to the isolation area, under penalty of remaining there for 30 days; (3) that persons not assigned by the Great Council to care for those being quarantined were not permitted to bring food to isolated persons, under penalty of remaining with them for 1 month; and (4) that whoever did not observe these regulations would be fined and subjected to isolation for 1 month. During the next 80 years, similar laws were introduced in Marseilles, Venice, Pisa, and Genoa. Moreover, during this time the isolation period was extended from 30 days to 40 days, thus changing the name trentino to quarantino, a term derived from the Italian word quaranta, which means “forty.”
The precise rationale for changing the isolation period from 30 days to 40 days is not known. Some authors suggest that it was changed because the shorter period was insufficient to pre- vent disease spread . Others believe that the change was related to the Christian observance of Lent, a 40-day period of spiritual purification. Still others believe that the 40-day period was adopted to reflect the duration of other biblical events, such as the great flood, Moses’ stay on Mt. Sinai, or Jesus’ stay in the wilderness. Perhaps the imposition of 40 days of isolation was derived from the ancient Greek doctrine of “critical days,” which held that contagious disease will develop within 40 days after exposure. Although the underlying rationale for changing the duration of isolation may never be known, the fundamental concept embodied in the quarantino has survived and is the basis for the modern practice of quarantine.
MORE TALMUDIC HEALTH MEASURES DURING AN EPIDEMIC
In addition to staying indoors, on today’s page the Talmud recommends two other interventions during a plague:
ת”ר דבר בעיר אל יהלך אדם באמצע הדרך מפני שמלאך המות מהלך באמצע הדרכים
Our Rabbis taught: When there is an epidemic in the town, a person should not walk in the middle of the road, for the Angel of Death walks in the middle of the road…
ת”ר דבר בעיר אל יכנס אדם יחיד לבית הכנסת שמלאך המות מפקיד שם כליו
Our Rabbis taught: When there is an epidemic in the town, a person should not enter the synagogue alone, because the Angel of Death deposits his tools there…
It probably won’t surprise you to learn that neither of these two measures is discussed in the medical literature, and in fact if there’s an epidemic in town, you probably shouldn’t go to shul at all.
HOW THIS PAGE OF TALMUD WAS IGNORED BY…
The early Codes of Jewish Law
There is nothing about this topic in the literature of the Ga’onim, the rabbis who continued to shape Jewish law after the redaction of the Babylonian Talmud, from about 600–1040. Neither is it mentioned in any of the three earliest codes of Jewish law, the Halakhot of Rabbi Yitzhaq Alfasi (11th century), the Mishnah Torah of Maimonides (late 12th century), and the Halakhot of Rabbi Asher ben Yehiel, better known by his acronym Rosh (late 13th to early 14th century). Asher ben Yehiel had a son by the name of Ya’akov, who organized the material from these three codes into an important new work known as the Tur, and which itself became the basis for the later authoritative Shulhan Aruch, which became the accepted Code of Jewish Law. But Ya’akov also ignored the entire topic of behavior during a pandemic.
The Maharsha
Later commentators on the Talmud added their own rulings about social isolation during a pandemic. The Polish exegete Rabbi Shmuel Eidels known by his acronym as Maharsha (1555–1631) wrote that the rabbis of the Talmud could not have been suggesting that one should not flee from the locus of a pandemic. “This is certainly not the case, because if there is an outbreak of plague in a town it is best to leave and flee for one’s life. Rather, the intent of the Talmud is that if one cannot flee, then do not go outside into the streets.” In true talmudic fashion, this comment of the Maharsha was itself commented on by a later rabbi, Yosef Hayyim from Baghdad (1835–1909) who is better known by the title of his major work on Jewish law, Ben Ish Hai. In his commentary on the Talmud, he wrote that “the words of the Maharsha are only applicable to [bubonic] plague. But in the case of cholera, even when arrangements could be made to care for a sick person at home, it is best to flee the city. Because cholera also frightens a person, and he can be consumed by the illness on account of this fear . . . Therefore it is best to flee far away so that his ears cannot hear and his eyes cannot see the sickness that rules over everyone, lest he be overtaken with fear, and he himself be taken, God forbid.
Sefer Hasidim
Although the practice of relocating because of a pandemic outbreak was not addressed in the early Jewish codes, it is mentioned in an important work called Sefer Hasidim (The Book of the Pious), a collection of folk stories, customs, and ethical adjurations that originated in the German Jewish community around Regensberg in the thirteenth century and was first published in 1487.
If there is plague in the city, and one heard that things are well in another city, they should not go there, for the Angel of Death has power over those who originate in that land, even aliens, so when caravans travel from a plagued city to a different land, it is smitten. However, if individuals go, and their intention is not commercial, it will not cause harm, and they are acting wisely. Anyone who wishes to escape should go to another land until the plague is arrested, and “May He destroy death forever” (Isaiah 25:8).
Clearly the Sefer Hasidim ignored the talmudic dictum to stay in one’s own house and ride out the pandemic. Sefer Hasidim encouraged individuals to flee, while disapproving of any large-scale organized temporary migration. It is not clear whether the Angel of Death alluded to here is identical with the Angel mentioned in the Talmud as “walking in the middle of the road” or is instead a moniker for the miasma, the tainted air that was thought to be the direct cause of pandemic illness from the time of the Talmud until the nineteenth century. Either way, the advice offered by Sefer Hasidim demonstrates that the Jewish practice at the time did not follow the advice of the Talmud.
The Maharil
The Sefer Hasidim was cited by a later authority, Rabbi Ya’akov ben Moshe Moellin (c. 1365–1427) who is better known by his acronym Maharil. He was born in Mainz but spent his later years in Worms where he was buried. In his most important work, he addressed the same vexing question: is it permitted to flee in the face of an impending epidemic? He offered a quasi-religious observation. The Talmud in tractate Sanhedrin observed that for “seven years there was a pestilence, yet no one died before his time.” Since death is predestined, fleeing from an epidemic or remaining in place is of no consequence; those who were fated by God to live will survive, while those ordained by God to die will do so, regardless of where they are. But Maharil downplayed this uncomfortable observation.
Instead, he cited the talmudic stories about the free reign of the Angel of Death. He also mentioned a ruling from his own teacher Rabbi Shalom Neusdadt (died c. 1413) who gave permission to flee during the early stages of an epidemic (though what constituted an “early stage” was not defined). This gave Maharil the freedom to find a rabbinic way to permit what it was that Jews were doing anyway. Faced with the conflicting talmudic sources but basing himself in part on the earlier Sefer Hasidim, Maharil wrote simply “for these reasons we do in fact flee” and concluded that “there appears to be no prohibition” in doing so.
The Maharshal
A century after Maharil, another rabbi codified the rulings about when and where to flee from an epidemic into law. The Polish Rabbi Shlomo Luria (1510– 1573), better known as Maharshal, descended from a family line that it was claimed could be traced back to Rashi, and his mother was herself a Talmudist of some repute. The Maharshal, like Maharil before him, ignored the talmudic advice that required to shelter-in-place: Here is his ruling:
“Section 26. The law about when a plague breaks out in a city: if the plague is not widespread you are required to flee. If it has become widespread, you should stay at home [lit. gather your feet].”
Luria considered the same talmudic sources cited by Maharil that suggested death can be indiscriminate during a plague, and referenced Maharil’s work, though without naming Maharil as the author. He concluded:
If a person has the ability to save himself and his property, then God forbid that he should not do so. He must separate himself from the sorrows of the community—even if as a result he will be punished by not being among those comforted by Zion.
Here is how the Maharshal concludes his legal opinion: “Therefore it is clear that if a plague comes to the city, a person must flee if he can do so, unless he has already contracted the plague and been cured, for then everyone says that he has nothing to fear.” He analyzed and reinterpreted today’s passage in the Talmud to be in harmony with what it was that everyone, Jew and Gentile alike, were doing when faced with an outbreak of plague, or indeed any infectious disease.
and by the Aruch Hashulchan
A few centuries later, another rabbi wrestled with the Talmud’s applicability, this time in a world in which vaccination was a reality. Rabbi Yehiel Michel Halevi Epstein (1829– 1908) served as the rabbi of Novogrudok (Navahrudak), in what is now Belarus for over 30 years, and while there he wrote the halakhic work by which he is best known, Aruch Hashulchan, first published in 1884.
The great rabbis have ruled that when there is an outbreak of smallpox in children and there are many deaths, a public fast should be declared. Every person, together with their young children should distance themselves from the city [where there is an outbreak], and should he not do so will pay for this with his life. And in the Talmud it is written “If there is plague in the city, gather your feet.” But smallpox is an infectious disease, and so there is an obligation to stay far from the city. Today the disease is not common, because about one hundred and fifty years ago the doctors started to give the cowpox [vaccine] to every young child aged about a year. In doing so they prevented this disease, as is well known.
But today the childhood disease called diphtheria is widespread, and it is a form of [the disease described in the Talmud as] askara which constricts the throat. I believe that if, God forbid, there is an outbreak of this disease, one should impose a public fast day.
Here, perhaps for the first time, is a new reason to ignore the Talmud’s advice: the infectious nature of smallpox. It had been well understood for centuries that many diseases are contagious, and that a person may become infected merely by having contact with the sick. But Rabbi Yehiel Michel Halevi Epstein was among the first to use the phrase mahala midabeket, which in modern Hebrew means “infectious disease.” Once the mechanisms of transmission began to be understood, it made sense to re-evaluate the talmudic advice to shelter-in-place. Such counsel was not sensible if the disease was likely to be spread easily from person to person, and the discovery of the role of bacteria and viruses would further support the importance of putting as much distance as possible between oneself and the outbreak of an epidemic. Epidemic outbreaks had once been understood as an unavoidable consequence of divine anger, planetary misalignment, or polluted air. But now they were acknowledged to be the entirely avoidable consequence of poor hand hygiene and an inattention to antisepsis.
[There is much, much more on the topic of fleeing, and on the larger Jewish encounter with pandemics in my book, The Eleventh Plague, from where much of the above is taken.]
שולחן ערוך יורה דעה הלכות מאכלי עובדי כוכבים סימן קטז סעיף ה
עוד כתבו שיש לברוח מן העיר כשדבר בעיר, ויש לצאת מן העיר בתחלת הדבר, ולא בסופו. וכל אלו הדברים הם משום סכנה, ושומר נפשו ירחק מהם ואסור לסמוך אנס או לסכן נפשו בכל כיוצא בזה
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