NAHAGU HA'AM B'CHARUVIN - the accepted practice regarding Carob trees (and any other tree that produces its crop at a single time during the year - TOSFOS)
it seems that the nohagu haam was utilized as the device to be mevatel the opinion of the chachamim as well as the codified halacha regarding carob trees its new year (tu Beshvat vs rosh chodesh shvat - two crops a year vs one crop a year etc).
It seems this is one of the sources for the Klal "Ba minhag & mevatel halacha", utilized extensively in halachik literature specifically regarding sukkah on shmini atzeres. is the above valid and accurate ??? any comments ??
thank you for all your efforts
Efraim Goldstein, New York, USA
(a) At first sight it would appear that this Gemara is a proof that Minhag cannot override Halachah. Rebbi Yochanan said that the people were Noheg like Rebbi Nechemyah with regards to Charuvim. Reish Lakish asked that this is not consistent with the Halachah which is like the Chachamim. The Gemara has no reply for this, aside from saying that the Halachah was not fixed like the Chachamim for Dinim d'Rabanan, only for Dinei Torah. The Meiri backs up this interpretation of the Gemara, explaining that Minhag Mevatel Halachah is only applicable where the Minhag is to be more stringent than required by Halachah. However, the Be'er Sheva (Teshuvah 22) learns that the Gemara's answer was that the Minhag can be Mevatel the Halachah in Halachos that are only mid'Rabanan.
(b) The question of sitting in the Sukah on Shemini Atzeres is discussed by various Poskim, but even amongst those who support the Minhag, I have not seen anyone who puts forward the argument of Minhag Mevatel Halachah. (See Aruch ha'Shulchan 669, Sefas Emes Sukah 46b, and Meishiv Tsedek (Reb Tsadok ha'Cohen of Lublin), Korban Nesanel Sukah 4:5:7). Perhaps this is because the Minhag has never been widespread enough to justify this reasoning.
(c) Minhag Mevatel Halachah is most commonly applied to monetary matters where it may work either because Hefker Beis Din Hefker or because the Minhag means that the contract between two parties is on condition of the Minhag. Minhag Mevatel Halachah may also apply where the Minhag is to be Machmir, even though the Halachah is more lenient. According to the Be'er Sheva it is also applicable when the Minhag is to be lenient even though mid'Rabanan the Halachah is more stringent.
Dov Freedman
This is a different Ephraim Goldstein responding to Efraim Goldstein's question
There is a mishna in Meseches Soferim which from memory I think is in chapter 14 halacha 18 or 19. It clearly says that minhag is only mevatel halacha if the minhag was institiuted by Vasikin or gedolei hador/torah (from memory). Look it up before quoting my memory. The issue was the split reading of the megilos. Careful investigation might suggest that the minhag has to be practiced but it cannot violate halacha and must be stated by vasikin etc.
The Mogen Avraham quotes this mishna L'halacha twice that I recall once in Hilchos purim.
There is a clear reference to minhag mevatel halacha in the REMA regarding payment to a POEL a day worker regarding whether there is a requirement to give him food in contemporary times if the minhag is not to. This is a financial issue and therefore the understanding of the compensation is important and called minhag but it is not really whaty you are referring to
I replied yesterday and misspoke ..
The inyan where the minhag is brought out as mevatel halacha was not the paying for the food of a poel but the requirement of working from morning as defined by alos and evening as defined by Tzeais (if it was not agreed upon beforehand.
The yerushalmi clearly calls it minhag mevatel halacha as it does in Yevamos by if eliyahu comes and tell us to use a healless sandal we can't listen to him Bavli- Shekvar nahagu and the Yerushalmi suggests that minhag is mevatel although the Pnai Moshe has a different pshat
The mishna in meseches soferim does say what I cited that it is only al pi vasiskn ugedolei torah and others say pshat if it is aligned what we know the torah says or is not an issur.