Tractate Berakhot of the Talmud of Eret—-Israel: 0020

1:
We are still discussing the rather strange case mentioned in the mishnah in which Rabban Gamli'el instructs his sons to act according to his private opinion and not according to the majority opinion of the sages. In the previous shiur we saw that the Gemara brought two examples of prominent sages, Rabbi Me'ir and Rabbi Akiva, who held opinions on a matter of halakhah that differed from the majority opinion of the sages and yet, when circumstances demanded it, they required action according to the majority opinion rather than their own.

2:
The Gemara now brings a third instance of such behaviour. Rabbi Shim'on ben-Yoḥai differed from the sages in a certain matter connected with Shemittah — the requirement of the Torah [Leviticus 25:1-7] that every seventh year the land lie fallow. (This year, 5772, for example, is the 4th year of the septennial cycle and the next Shemittah year will be 5775.) During a Shemittah year no seeds may be sown nor trees pruned and so forth. Neither may the produce of field or orchard be reaped. However, some plants seed themselves during the seventh year and produce grows without human intervention. Such produce is 'hefker': it does not belong to the farmer in whose field it grows but it belongs to everybody and it may be reaped on a 'first come first served' basis.

3:
However, sometimes produce of the sixth year self-seeds and the produce grows during the seventh year. According to the opinion of Rabbi Shim'on such produce may be reaped just as if it were seventh year self-seeded produce; the rest of the sages disagreed and forbade the collection of such produce. And yet, when confronted with a situation in which he sees someone disobeying the sages — perhaps because he knew the private opinion of Rabbi Shim'on — he castigated this person for not heeding the requirement of the majority of the sages. Rabbi Shim'on recited to him the biblical verse [Ecclesiastes 10:8] "May a snake bite anyone who makes a gap in the fence". The 'gap in the fence' is a poetic reference to undermining the rulings of the sages. The Gemara rather laconically adds that this was, in fact, the fate of this person! Apparently he was bitten by a snake and died.

4:
So now we have three examples of sages no less prominent than Rabban Gamli'el himself who did not hesitate to ignore their private views when required to state accepted halakhah. So, asks the Gemara, how could Rabban Gamli'el have instructed his sons the way he did in the mishnah? Surely he should have upheld the view of the sages that the Evening Shema must be recited before midnight.

5:
Two responses are given in the Gemara to this question. The first is that he did not actually tell them to recite the Shema after midnight: he told them to read the relevant passages from the Torah as study — which is permitted, of course, at all times. However, the weakness of this response (a virtual cop out!) is immediately pointed out in the Gemara: study of Torah is permitted at all times, yet Rabban Gamli'el requires his sons to read the Shema after midnight "if dawn has not yet broken". If he were only telling them to study those passages what has the break of dawn got to do with the issue?

6:
The second response is different. It seeks to show that the situation in the case of the sons of Rabban Gamli'el is different from the three other cases quoted, Rabbis Me'ir, Akiva and Shim'on. In the three latter cases there was no impediment to carrying out the ruling of the sages. However, in the case of the sons of Rabban Gamli'el they were not able to carry out the ruling of the sages. The time limit set by the sages, midnight, had already passed. Had they asked Rabban Gamli'el before midnight he doubtless would have instructed them to follow the opinion of the sages; however, since that is no longer possible they should at least follow his own private opinion and recite the Shema before dawn.

7:
This is now accepted halakhah: the Evening Shema must be recited before midnight. However, if that limit has inadvertently been passed it should be read provided that dawn has not yet broken signalling the end of night and the break of a new day.