Levud for Tumah

Ohalot (10:2) | Yisrael Bankier | 15 years ago

The Mishnah (10:2) discusses a case where tumah (originating from a corpse) is placed entirely beneath a hatch or opening in the ceiling (arubah) of a house that is less than a tephach wide. The ruling given is that anything inside that house remains tahor while anything vertically in line with that tumah is tameh.

The Bartenura notes that the Mishnah teaches that the principle of levud does not apply to the laws of tumah “even if it is less than a tephach”. One may recall that the principle of levud (Nachal Nove’ah Zeraim, “Levud”) is where a space that is less than three tephachim is considered filled in. It may be surprising then that the Bartenura notes that here levud does not apply for a space “even less than a tephach”. Certainly it should have been enough to just state that levud does not apply to tumah. It is made particularly more difficult since the previous Mishnah taught a similar law with an arubah that was the size of a tephach and there the Bartenura makes no mention of levud.

The Mishnah Achrona answers this question. First however, we shall bring the opinion of the Ritva (Sukkah 18a). The Ritva explains that Torah made one tephach for the laws of tumah (which is the minimum measure for tumat met to transfer between rooms) equivalent to the three tephachim for the laws of partitions. Indeed this is also the understanding of the Mishnah Achrona. Consequently the novelty is not that levud does not apply to the laws of tumah for an arubah the size of a tephach; it could never anyway just as levud could not apply for a space greater than three tephachim. The novelty is that it does not apply even for a space less than a tephach.

The Mishnah Achrona brings a proof that this is indeed the position of the Bartenura. Earlier (4:1) we learnt about a case of a migdal (chest) that was placed in a house such that the space between it and the walls, ceiling and floor was less than a tephach. The Mishnah ruled that if tumah was in the house and keilim (utensils) were in the spaces, they would be tahor – but only if the spaces were less than a tephach. The Bartenura there explains that this is because the principle of levud applies, thereby making it as if the keilim were not in the house. Consequently we find that the limit of levud for tumah is one tephach.

The proof however introduced a difficulty. Why does levud apply earlier whereas here it does not? Another important rule found in the Rama (Yoreh Deah 342:4), answers this question: the principle of levud is only applied when it results in a leniency and not stringency.40 Here, if levud applied it would result in the entire house being tameh and thus a stringency, where as in the earlier Mishnah, levud protected those keilim from becoming tameh.

The Taz question the ruling of the Rama. If levud is applied in the case of a leniency then how could tumah ever transfer between rooms where the adjoining hole is a tephach in size? The Mishnah Achronah answers the question of the Taz with the principle already stated in this article. The reason why it does not apply for a tephach sized hole for the laws of tumah is because such a space is equivalent to three tephachim. In other words it is too large for the principle of levud. The question only arises for tumah when the space is less than a tephach.

40 There is much discussion on this ruling of the Rama which is however beyond the scope of this article. See for example the Magen Avraham, Orach Chaim 502:9.


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