buried on a festival, they may sit these three times as on a weekday(No.20 in Hagahot Minhagim). The same is true if the burial took place just before Shabbat : They may do this on Shabbat . People are accustomed to be very careful not to enter a house before washing and sitting three times, and the custom of our ancestors is Torah (Maharil , ibid.)....
According to Freehof , these two and the hundreds of other appeals to the durability of custom by Isserles are evidence that “the rabbinical authorities appreciated the fact that the creative material in Jewish law which the official law could only analyze, sift and organize, was the true basis of the continued vitality of Judaism .” The great emphasis on custom, he asserts, proves that practice was not a“mood” imposed on the community by the rabbinate,“but... a mass reaction, a mass creativity which produced practice and observance whenever Judaism needed to readjust itself to new conditions.”*
Freehof is certainly correct in seeing in Isserles ’ comments evidence for flourishing popular creativity, but his argument has a serious weakness. In the halakhic system, the power of minhag to create, change, or overrule halakhah varies widely depending on what sort of halakhah is in question. Custom does not carry equal weight in all realms of the law.
Menachem Elon ’s halakhic taxonomy divides the halakhah into two realms, mammon and issur.“Although all parts of the halakhah are rooted in the same source, share the same principles and methods of analysis, and provide and receive reciprocal support, nevertheless, study of the halakhic sources reveals that the halakhah did make very fundamental distinctions between its two major categories, namely, monetary matters(that part of the halakhah included in the concept of mamon) and nonmonetary matters(that part of the halakhah included in the concept of issur).”3 One of the significant differences between these two areas of halakhah concerns the force of minhag.“The distinction between issur and mamon is also an important factor in regard to the binding authority and the creative power of custom, particularly with regard to the fundamental principle in this field that‘custom overrides the law’(minhag mevattel halakhah), which applies exclusively to matters of mamon but not at all to matters of isur.”>’
In matters of mammon parties may agree betw “to contract out of a law contained in the Torah, ” so long as no
een themselves