An Unusual Haftarah – Tthat of Parshas Mishpatim

Question #1: A Rare Occurrence

Why is the haftarah for parshas Mishpatim read at such irregular intervals?

Question #2: Haftarah in Reverse

Why do we read the verses of this haftarah in a different order from how they appear in Tanach?

Question #3: Are We Ignoring Chazal?

How are we permitted to read this haftarah out of order, when Chazal prohibited this practice?

Introduction:

The section from sefer Yirmiyahu (34:8-22) beginning with the words Hadavar asher hayah leYirmiyahu discusses the laws of eved ivri, a Jewish slave. For this reason, it is an extremely appropriate haftarah for parshas Mishpatim. At the same time, as the questions above note, there are three unusual and curious aspects of this haftarah, which I will now explain.

Sporadic haftarah

The first question posed above is that, notwithstanding the appropriateness of Hadavar for parshas Mishpatim, in most years we read different haftaros this Shabbos. Furthermore, Hadavar is read in a fairly sporadic pattern. For example, we read it this year, and, under our current fixed calendar system, we will read it again in three years, in 5779 (2019), in 5782 (2022) and in 5785 (2025). This seems like a fairly regular schedule of every three years. However, this is followed by an interlude of ten years before we read it again — not until 5795 (2035). Why is the reading of Hadavar so erratic, when Mishpatim is read very predictably every year, the Shabbos after Yisro and before Terumah?

Driving in reverse

The second question raised above concerns the unusual structure of the haftarah. It consists of reading fifteen pesukim that begin with the words Hadavar from the book of Yirmiyahu (34:8-22) and then closes by reading two pesukim that are nine verses earlier in the sefer (Yirmiyahu 33:25-26). This is the only time that we close a haftarah by reading an earlier passage. Why do we read the passages in an order different from the order in which they appear in sefer Yirmiyahu?

Are we ignoring the Gemara?

The third question is a continuation of the previous one, although it necessitates an introduction. Chazal instituted several rules about reading the haftaros, one of which is called ein medalgim lemafrei’a, which prohibits going back to read an earlier section after we have read a later part. Thus, after reading Chapter 34 of Yirmiyahu, how are we permitted to return to Chapter 33?

Why so sporadic?

Having presented the three issues, allow me to answer these questions in the order in which they were asked. The first question was that the scheduling of this haftarah is both infrequent and sporadic. In most years, we read a different haftarah for Shabbos Mishpatim, and, occasionally, there is a gap of many years between one reading of Hadavar and the next. The reason for this is not as complicated is it sounds. Parshas Mishpatim almost always falls on the Shabbos before Rosh Chodesh Adar. In non-leap years, on that Shabbos we read parshas Shekalim for maftir and, therefore, we read the special haftarah for Shabbos Shekalim which is in sefer Melachim. As a result, almost the only time we read Hadavar is in a leap year, when Shekalim is read on or immediately before Rosh Chodesh of the second Adar – since it is the month immediately preceding Nissan – and Mishpatim falls before the first Adar. (There is a very occasional common year, such as 5785, when parshas Terumah falls on Rosh Chodesh Adar and is therefore the Shabbos on which we read Shekalim. In those years, we indeed read Hadavar on Mishpatim in a common year.)

Even in a leap year, when Shekalim never coincides with Mishpatim, there are years when Shabbos Mishpatim falls either on Rosh Chodesh or on Erev Rosh Chodesh. In these instances, we read the special haftaros for Rosh Chodesh or for Erev Rosh Chodesh. As a result, at times, many years go by until we again read Hadavar.

Haftarah in reverse

The second question concerned the unusual structure of the haftarah, in which we close by reading two pesukim that are a bit earlier in the sefer. Why do we read the haftarah in an order different from how it appears in sefer Yirmiyahu?

Happily ever after

The answer to this question requires our examining an accepted custom – not to end an aliyah, a haftarah or a megillah at a negative point. This concept is already mentioned by Rashi in his last comment on Eicha, where he notes that four seforim of Tanach Eicha, Yeshayahu, Trei Asar and Koheles – end on a negative tone, so we repeat the next to last pasuk afterwards to end on something positive. (The source for this idea is in Talmud Yerushalmi, Brachos, 5:1.)

In accordance with this approach, where the natural end of a haftarah closes on something negative, we often skip ahead a bit to find a more pleasant place to end the haftarah. The unusual aspect of Hadavar is that we do not skip ahead, but backwards, to find a pleasant ending. The reason we do this is because the next several chapters of Yirmiyahu do not include any pesukim that would be considered an appropriate ending for the haftarah. From a reader’s perspective, the most appropriate, pleasant place to stop is a few pesukim before Hadavar, which is why the custom developed of adding these two pesukim at the end.

Shuva versus Vayeitzei

An interesting related question: The haftarah for Shabbos Shuva begins towards the end of Hoshea, one of the twelve prophets whose writings comprise Trei Asar, with the words Shuva Yisroel. The final words of Hoshea are that Hashem’s ways are straight, yet sinners will stumble over them, u’poshe’im yikashlu bam. On Shabbos Shuva, we consider this to be a negative way to end the haftarah, and therefore we continue by reading elsewhere in Trei Asar in order to close with a pleasant ending. (There are many different customs how to accomplish this; I am aware of at least five.) However, the haftarah that most Ashkenazim read every year for Vayeitzei, which begins earlier in Hoshea, ends at the end of Hoshea with the words uposhe’im yikashlu bam. Why are these words considered positive enough to be an appropriate ending when we read this haftarah on Vayeitzei, but an inappropriate place to close on Shabbos Shuva? (It should be noted that the Mishnah Berurah [428:22] and many calendars published in Eretz Yisrael include reciting additional verses when this haftarah is read on Vayeitzei, in order to end more positively. However, most chumashim do not include these additional verses, and it is not the common practice in chutz la’aretz.)

I would like to suggest the following: The stumbling of the evil is not inherently a bad thing, and, for this reason, this is considered an appropriate place to end the haftarah on Vayeitzei. Nevertheless, on Shabbos Shuva, ending with u’poshe’im yikashlu bam, the sinners will stumble, is inappropriate, because the first Shabbos of the year should have a more encouraging conclusion. Alternatively, mention the sinning of the evil is an inappropriate closing during the aseres yemei teshuvah, when our entire theme is that everyone will do teshuvah.

Parshas Kedoshim

It should be noted that there are aliyos and readings that, indeed, do end in negative places, the most obvious example being the end of parshas Kedoshim, whose closing discusses a case of capital punishment. Why are we inconsistent – ending some aliyos in negative places, yet in others skipping or repeating verses to avoid this?

It seems that ending in a negative place is, in general, not forbidden but, rather, a custom that developed to try to find a pleasant ending, wherever this does not distort the reading. However, if finding a pleasant place to end an aliyah will complicate matters, we stop at a convenient place, even though it is negative. Alternatively, the division of the parshiyos predates the custom that we not end an aliyah at a negative point, and these divisions were left in place, even after the custom developed.

The tochachah

We can prove that ending an aliyah in a negative place is a custom that developed, but is not halachically required, from the Gemara and early halachic authorities, in their discussion concerning the public reading of the tochachah. In two different places, parshas Bechukosai at the end of sefer Vayikra and parshas Ki Savo in Devorim, the Torah describes in great detail the calamities that befall Klal Yisroel, should we fail to observe the Torah properly. This part of the Torah is customarily called the tochachah, literally, the admonition, although the Mishnah (Megillah 31a) calls it the curses. Chazal (Megillah 31b) discuss whether one may divide the tochachah into different aliyos. The Gemara concludes that the tochachah in Bechukosai, which is the harsher of the two, may not be divided into aliyos, whereas the tochachah of Ki Savo may be divided. Thus, we see that, other than the tochachah of Bechukosai, one may conclude an aliyah at an unpleasant point.

The Rambam (Hilchos Tefillah 13:7) and the Shulchan Aruch (Orach Chayim 428:6) already note that, although it is permitted to end aliyos in the middle of the tochachah of Ki Savo, the custom developed to avoid doing this. This custom was extended to include any place where an aliyah would end in an unpleasant place. However, where accommodating this practice would result in an unusual division of the parshiyos, such as at the end of parshas Kedoshim, we do end the parshah at its natural division, notwithstanding its being a negative place.

Are we ignoring Chazal?

At this point, we will discuss the third question I raised above. How are we permitted to read this haftarah out of order, when Chazal prohibited this practice? Let me explain the question.

Chazal established several rules regarding the reading of the haftarah. One beraisa provides the following directives:

One may not skip from one book of the prophets to another. However, one may skip from the reading of one prophet to another prophet within Trei Asar, provided that one does not skip from the end of the book to its beginning (Megillah 24a). I will refer to this last rule as the prohibition of ein medalgin lemafrei’a, literally, “not to skip backwards.”

Switching prophets midstream

The Gemara is ruling that although one may skip ahead within the same book of the prophets, one may not skip from the writings of one navi to another, such as from Yirmiyahu to Yeshayahu. Rashi explains that skipping from one navi to another confuses people, which is explained by the Aruch Hashulchan (Orach Chayim 144:2) in the following manner: When Hashem brings the presence of His Shechinah onto a prophet, the prophet perceives a vision and a message, which he will later describe. The way the prophet experiences his vision and how he expresses himself bear the mark of aspects of his personality. This is called ein shnei nevi’im misnabe’im besignon echad, literally, “no two prophets prophesy in the identical style” (Sanhedrin 89a). If the haftarah were to shift from one prophet to another, the audience listening would be required to adjust suddenly to the style and mindset of a different prophet, which is confusing. As a result, the listeners would not absorb the full impact of what is being taught, which is why Chazal forbade switching prophets in mid-haftarah.

The Gemara continues by explaining that within Trei Asar, a book composed of the writings of twelve different prophets, Chazal permitted skipping from the writings of one navi to another. Presumably, the reason is that people expect style changes within Trei Asar, so they are not confused.

Ein medalgin lemafrei’a

Returning to the original beraisa, which states: One may not skip from one book of the prophets to another. However, one may skip from the reading of one prophet to another prophet within Trei Asar, provided that one does not skip from the end of the book to its beginning. The question is whether the rule prohibiting medalgin lemafrei’a, reading verses of a book out of order, applies only to the book of Trei Asar, or is it prohibited in any sefer navi. If it refers only to Trei Asar, then reversing direction at the end of the haftarah of Hadavar, which is from the book of Yirmiyahu, does not present any problem.

The authorities dispute which interpretation of the beraisa is correct. The Kesef Mishneh, indeed, rules that ein medalgin lemafrei’a applies only to Trei Asar and nowhere else. However, the Magen Avraham disagrees and understands that ein medalgin lemafrei’a applies to the works of any of the prophets. It is possible that our custom of skipping backwards when reading Hadavar is based on the Kesef Mishneh’s understanding of the Gemara. However, since most late authorities follow the Magen Avraham’s approach, it is unusual that common custom should conflict with his ruling. Are there other approaches to justify the practice?

Foreign additions

Prior to presenting two other approaches to justify the practice of reading the end of the haftarah Hadavar out of order, we should examine a different controversial custom that dates back many hundreds of years. In the times of the rishonim, on the Shabbos after someone married, the haftarah was concluded by adding two or three verses from Yeshayahu (61:10) beginning with the words Sos Asis, because these verses refer to a chosson and kallah (Beis Yosef, Orach Chayim 144). The problem with this custom is that whenever the week’s haftarah is from a book other than Yeshayahu, reciting Sos Asis skips from one navi to another.

There was also another, similar practice that seems to violate Chazal’s dictates. When Rosh Chodesh begins on Sunday, a special haftarah from Shmuel is usually read that begins with the words Vayomer Yonasan mochor chodesh. A custom developed that, when Rosh Chodesh fell on Shabbos and Sunday, after reading the haftarah of Shabbos Rosh Chodesh, which is from the closing words of Yeshayahu, the first and last verses of the haftarah mochor Chodesh were read as a reminder that the next day is also Rosh Chodesh. Yet this practice runs counter to the Gemara’s prohibition of switching prophets in mid-haftarah!

The Terumas Hadeshen

One early authority, the Terumas Hadeshen, suggests why these customs do not violate the takkanah. He comments that there are two disputing reasons why one may not switch from one navi to another while reading the haftarah. As we noted above, Rashi explains that the reason is to avoid confusing the listeners. However, other rishonim provide a different reason why one may not skip from one navi to another: closing one navi scroll and opening a different one, while the congregation is waiting, constitutes tircha detzibura, literally, “inconveniencing the congregation.” According to the latter approach, the Terumas Hadeshen explains why the takkanah not to switch prophets in mid-haftarah no longer applied in his day.

Bound Bibles

Although the Terumas Hadeshen lived before the invention of the printing press, he notes that, in his day, they no longer wrote the works of the prophets as scrolls but, instead, they were written as manuscript pages and then bound into books. Among the practical advantages of the bound edition is that one can place a marker in the different places from which one intends to read and then simply turn the pages at the correct time to the appropriate marker. As a result, switching to the writings of a different prophet in mid-haftarah does not involve any tircha detzibura, as opposed to closing a scroll and opening a new one, which takes far more time. For this reason, the Terumas Hadeshen contends, those who explain that Chazal prohibited switching prophets in mid-haftarah because of tircha detzibura will conclude that this is permitted when the haftarah is in book form. He concludes that this is the rationale for those who add verses from Sos Asis or Mochor Chodesh on the appropriate occasions.

However, the Terumas Hadeshen notes that, according to those who prohibit changing prophets in mid-haftarah because the style-change is confusing, it will make no difference whether one is reading from a bound book or a scroll. In both instances, switching to a different author confuses people and may not be done.

Justified conclusion

Based on this approach of the Terumas Hadeshen, we may be able to permit going back to two earlier pesukim to conclude the haftarah of Hadavar, if we assume that the prohibition of ein medalgin lemafrei’a is because of tircha detzibura.

When more is less

However, the custom is not yet out of the woods. Another aspect that impacts on this ruling is the following: When people read the haftarah from a bound volume, the heter mentioned by the Terumas Hadeshen applies. However, today many yeshivos and yeshivah-type shullen have the mehudar custom of using handwritten scrolls of nevi’m for the reading the haftarah. (An explanation for this custom is a topic for a different article.) The Terumas Hadeshen’s rationale will not permit reading Sos Asis, Mochor Chodesh or the last verses for Hadavar from a scroll at the end of a haftarah. This would result in the rather anomalous situation in which the chumra of reading the haftarah from a scroll may ultimately lead to violating a takkanas Chazal!

Another answer

All is not lost, and we can still find justification, even for the scroll readers. Other authorities provide a different reason to permit reading Sos Asis after a haftarah from a different navi. They explain that these verses are not considered part of the haftarah but a concluding song after the haftarah (Beis Yosef, Orach Chayim 144, quoting Nemukei Yosef; Levush ad loc. 144:2). This is true, despite the fact that these pesukim are read before the brochos of the conclusion of the haftarah. Similarly, reading the verse Mochor Chodesh after the haftarah does not violate the takkanah of Chazal not to switch prophets in mid-haftarah because this is considered an announcement and not part of the haftarah.

Conclusion

According to this last approach, adding some verses for a pleasant conclusion is not considered part of the haftarah, and therefore does not violate the takkanas chachamim.

As an aside, I have been told that Rav Chayim Kanievsky, shlit”a, advises people who read the haftarah from a scroll to read the last two verses of this week’s haftarah from a regular, printed chumash. This emphasizes the fact that these are not considered part of the haftarah and therefore do not violate the takanas chachamim.

 

Make Our Mitzvos Count!

The Aseres Hadibros include allusions to all of the 613 mitzvos. What better week to…

Make Our Mitzvos Count!

The opening words of Rashi’s commentary on the Torah quote the following Midrash: Rabbi Yitzchak said, “There seems no need to begin the Torah before Hachodesh Hazeh Lochem, which is the first Mitzvah that the Jewish people were commanded.” I decided to use the parsha in which we read the Aseres Hadibros to discuss all 613 Mitzvos that we are commanded.

Most of us are unaware of the vast literature that debates, disputes and categorizes what exactly comprises these 613 Mitzvos, and the halachic ramifications resulting from these discussions. I will simply note that if one counts every time the Torah says to do or not to do something the result is thousands of Mitzvos. Aren’t we shortchanging ourselves by limiting our Mitzvah count to 613? Since the Mishnah (at the end of Makkos) states: Hashem wanted to provide Israel with much merit and, therefore, provided them with much Torah and many Mitzvos, why do we limit the count to 613?

Why 613?

What is the source for the count of 613 Mitzvos?

The Gemara teaches: Rav Simla’i explained: “Moshe Rabbeinu was taught 613 Mitzvos, 365 negative Mitzvos equal to the number of days of the solar year, and 248 positive Mitzvos, corresponding to a man’s number of ‘limbs.’Rav Hamnuna said: “What verse teaches this to us? ‘Torah tzivah lanu Moshe morashah kehillas Yaakov,’ Moshe taught us the Torah, which is an inheritance of the community descended from Yaakov. The Gematriya (numerical value) of the word Torah equals 611, and two Mitzvos of Anochi Hashem and Lo Yihyeh Lecha were taught to us directly by Hashem” (Makkos 23b).

Thus, we now know that we have 613 counted Mitzvos, and yet there are thousands of places that the Torah commands us what to do. Obviously, some of the Torah’s commandments are not counted, but which ones? This question led many early authorities to calculate what exactly is included in the 613 Mitzvos and thereby understand what the Gemara means. Several Geonim and Rishonim authored works that list the 613 Mitzvos of the Torah, and no two lists are exactly the same.

The Sefer Hachinuch

Most of us are familiar with the listing of the 613 Mitzvos of the Sefer Hachinuch. Actually, this author did not develop his own list of 613 Mitzvos, as he mentions several times in his work. He followed the calculation of the Rambam, who wrote a large work on the subject, called Sefer HaMitzvos, which includes both the rules of when to count something as a Mitzvah and a list of the 248 Mitzvos aseh and the 365 Mitzvos lo saaseh, organized in a logical pattern. (Actually, notwithstanding what the Sefer hachinuch himself writes, he counts one mitzvah that the Rambam does not, and omits one of the Rambam’s.)

Chronology versus Logic

The Sefer Hachinuch reorganized the Rambam’s list, numbering each Mitzvah according to its first appearance in the Torah. Thus, the first Mitzvah of the Torah, Pru Urvu, having children, which is mentioned in parshas Bereishis, is the first Mitzvah; Bris Milah, mentioned in parshas Lech Lecha is counted as the second Mitzvah, and Gid Hanasheh, taught in parshas Vayishlach, completes the three Mitzvos mentioned in Sefer Bereishis. Parshas Bo is the first that contains many Mitzvos, a total of twenty, reflecting its significance as the first parsha in which Hashem directly commanded Mitzvos to the Jewish people, as Rabbi Yitzchak noted in the above-quoted Midrash.

What Counts as a Mitzvah?

In the first section of the Sefer HaMitzvos, the Rambam details the rules that he used to determine what qualifies as a “Mitzvah” in the count of 613. He establishes 14 rules, which include:

I. No Rabbinics

Any Mitzvah that is only miderabbanan is not counted among the 613 Mitzvos. This rule may seem obvious, since the Gemara is calculating the 613 Mitzvos that Hashem commanded us, and not those later added by the Sages. However, one of the great Geonim, the author of the Baal Halachos Gedolos, counts many Mitzvos derabbanan in his list of the 613, including kindling Ner Chanukah, reading Megillah on Purim, and reciting Hallel. How could the Baal Halachos Gedolos include these in his list of Mitzvos that Hashem commanded us?

The Ramban, in his exhaustive commentary to the Rambam’s Sefer HaMitzvos, provides two answers:

  1. There is an alternative text to the Gemara in Makkos, which reads, “The Jewish people are commanded 613 Mitzvos.” According to this wording, the Gemara there cites a Biblical verse not to imply that we derive these 613 Mitzvos from the Torah, but merely as a mnemonic device (based on the Gematriya of the word Torah) to remind us that there are a total of 613 Mitzvos of both Torah and rabbinical sources.
  2. The Ramban contends that even the text of the Gemara that I quoted earlier, which states that Moshe Rabbeinu was commanded 611 Mitzvos, does not present an obstacle to the Behag’s approach, and could include Mitzvos introduced by Chazal. The Ramban cites many places where, even though the Gemara states that “The Torah required…” or “Hashem said…,” the statement refers to a rabbinic command, not a Torah requirement. In his opinion, Chazal used this terminology, even in the context of Rabbinic requirements, since the Torah requires us to observe the Mitzvos that Chazal commanded.

Thus, although the Rambam insists that there are 613 Mitzvos that Hashem commanded the Jewish people, and his opinion is accepted by most authorities, there are other Torah scholars who include Mitzvos introduced by the Sages among them.

Dispute the Rules

In addition to the above dispute, there are other authorities who disagree with many of the fourteen rules that the Rambam used to define the Mitzvos (listed below). Nevertheless, since the Jewish people have come to accept the Rambam’s and Chinuch’s count of the Mitzvos, it is important for us to know and understand these rules.

II. Only What the Torah Says

The Rambam’s second rule is to not count any Mitzvah that is derived hermeneutically, through a drasha, but only Mitzvos that are mentioned outright in the Torah. Therefore, says the Rambam, we do not list the requirements to treat one’s stepfather or stepmother with appropriate respect as separate Mitzvos, since these requirements are derived from the extra word es, rather than being mentioned outright. Instead, these responsibilities are included under the Mitzvah of respecting one’s parents. Similarly, the Rambam rules not to count Visiting the Sick (Bikkur Cholim) or Comforting Mourners (Nichum Aveilim), as separate Mitzvos, but includes them under the Torah’s Mitzvah of emulating Hashem by acting in ways that imitate His acts of kindness.

III. Mitzvos are Forever!

One counts only a Mitzvah that is everlasting, and not one that is temporary. For example, we do not count as one of the 613 commandments that a Levi may not serve in the Mishkan past his fiftieth birthday, since this rule applied only in the Desert and not afterwards.

The reason for not counting these commandments is that the 613 Mitzvos form an eternal relationship between Hashem and the Jewish people, and, as such, apply only to Mitzvos that apply forever. However, many Mitzvos that are not applicable today due to the absence of the Beis Hamikdash still count in the list of 613. This is because these Mitzvos are eternal commandments that are temporarily beyond our ability to observe.

IV. Torah, but Not the Whole Torah!

One should not count as part of the 613 any command that includes observing the entire Torah. For example, the Torah states: Be careful concerning all that I am telling you (Shemos 23:13) and Guard my decrees and observe my judgments (Vayikra 18:4). These and other similar statements are not counted among the 613 Mitzvos. The Rambam explains that each of the 613 Mitzvos involves a different mode of developing our relationship with Hashem, while a pasuk that instructs to keep all the Mitzvos is not indicating any specific way to grow.

V. No Reasons!

In the instances when the Torah provided a reason to observe a Mitzvah, we do not count the reason as a separate Mitzvah. Although these reasons are significant in understanding both our relationship with Hashem and why we observe His Mitzvos, they do not obligate any additional actions with which to deepen our relationship with Hashem.

VI. Yes and No

When there are two commands pursuant to an activity, one a positive command (mitzvas aseh) and the other a negative command (mitzvas lo saaseh), we count the Mitzvah twice, once among the 248 Mitzvos aseh and once among the 365 Mitzvos lo saaseh. There are numerous examples of this: For example, there is a positive Mitzvah, “to keep Shabbos,” and a negative Mitzvah, “not to perform melachah on Shabbos.” The situation is repeated concerning the observance of all the Yomim Tovim (seven times, or 14 more Mitzvos), afflicting ourselves on Yom Kippur (which has both a positive and a negative commandment), and regarding all korbanos being salted before placing them on the mizbeiach (which also has a lo saaseh, Do not place unsalted korbanos on the mizbeiach).

VII. Details, Details

Details about when a Mitzvah applies and how to fulfill it do not count as separate Mitzvos. For example, for certain sins the Torah requires an atoning korban that has a sliding scale: a wealthy person offers an animal, a pauper offers only a grain offering, and someone in-between offers a dove or pigeon. All this counts as only one Mitzvah, although there are many different ways of accomplishing it. Here again, there is one Mitzvah that develops our relationship with Hashem, although depending on one’s financial circumstances, there are different ways to perform it. Dividing this into several Mitzvos would send an erroneous message.

VIII. Not Every “No” means “No!”

There are instances where, even though a verse might seem to be forbidding something, a careful reading of the verse indicates that the Torah is merely stating that something will not happen or does not need to be performed. Obviously, these instances do not qualify as Mitzvos. For example, the Torah says that no prophet will arise who will be like Moshe. Although the wording of the Torah, Lo kam od navi kemoshe, might be read to mean, “No prophet should arise like Moshe,” which implies that we are commanded to make sure this does not happen, the translation of the verse is actually a prophetic Divine statement: “No prophet will arise like Moshe.” Thus, this verse is not a directive and does not count as a commandment.

IX. Five Times One Equals One.

When the Torah repeats a Mitzvah many times, we do not count each time as a separate Mitzvah, but we count it as one Mitzvah. Therefore, although the Torah prohibits eating blood on several occasions, it counts as only one of the 613 Mitzvos. As a result, in the Rambam’s opinion, someone who violates this prohibition is punished as if he violated only one lo saaseh, and not many.

According to this approach, when two similar Mitzvos lo saaseh or two similar Mitzvos aseh are both counted as Mitzvos, this must be because one Mitzvah is more comprehensive than the other. Otherwise, this Mitzvah would not be counted more than once.

Here is an example:

The Rambam counts two different Mitzvos against owning chometz on Pesach, bal yei’ra’eh, that chometz should not be seen, and bal yematzei, that chometz should not be found. Why does he count both of these Mitzvos, whereas he counts only one Mitzvah not to eat blood?

The answer is that these two Mitzvos are not identical: bal yematzei includes cases that are not included under bal ye’ra’eh. Specifically, someone who buried chometz does not violate bal yei’ra’eh, since the chometz cannot be seen. However, he does violate bal yematzei since the chometz can be found.

This distinction not only affects whether this Mitzvah is counted once or twice among the 613, but also has other halachic ramifications. Someone who purchased chometz or mixed dough and allowed it to rise on Pesach violates two different prohibitions, since these prohibitions count as two separate Mitzvos.

X. Preliminary Steps do not a Mitzvah Make

Preliminary steps involved in the performance of a Mitzvah are not counted as a Mitzvah on their own. For example, one does not count the statement that one should take flour to bring a korban mincha, a grain offering, as a Mitzvah on its own. It is simply one stage in the performance of the Mitzvah.

XI. Part of a Mitzvah is Equal to None

There are Mitzvos in which several items are involved in successfully performing one Mitzvah, such as taking the four species on Sukkos. The Rambam points out that one counts the taking of the four species as one Mitzvah, not as four separate Mitzvos, since taking each of them without the others, or even three without the fourth, does not fulfill a Mitzvah.

XII. Completing one Part of a Mitzvah

Some Mitzvos involve the successful completion of several other commandments, such as the Mitzvah to build the Mishkan/Beis Hamikdash, which involves the completion of many of the vessels, including the Menorah, the Shulchan, and the Altar. Each of these independent Mitzvos is not counted separately: Since the purpose of all of them is the creation of the Mishkan/Beis Hamikdash, they are all included under the one Mitzvah of building Hashem’s “house.”

XIII. Many Days are not Many Mitzvos

If a Mitzvah continues for several days, one counts the Mitzvah only once. It is interesting that the Rambam counts offering the Korban Musaf on Sukkos as only one Mitzvah, even though the number of its bulls changes daily.

Included in this rule is that a Mitzvah observed more than once a day is counted only once. Therefore, reciting Kerias Shma every morning and evening is counted as only one Mitzvah (Kinas Sofrim).

XIV. Punishments are not Mitzvos

When the Torah describes the punishment for violating a specific Mitzvah, we do not count that punishment as a separate Mitzvah in its own right.

Although almost every one of the Rambam’s rules has its disputants, this last rule is interesting because it entails a major dispute between the Geonim’s approach to counting Mitzvos and that of the Rambam. Several of the Geonim count each time the Torah mentions a punishment for violating a certain command as a separate Mitzvah. The individual’s command to observe this law counts as a Mitzvah, and the Beis Din’s instruction to mete out a specific punishment to those who violate the law is counted as a separate Mitzvah. This understanding of the Mitzvos creates a list of 71 Mitzvos of the Torah that apply to the Beis Din.

As mentioned above, the Rambam disputes this approach and counts simply five Mitzvos for the Beis Din to fulfill, one for each of the four types of capital punishment that Beis Din administers, and one for malkus, lashes.

Other Lists

Among those who did not follow the Rambam fully, the one that is probably closest to the Rambam’s count of the 613 Mitzvos was that of Rav Moshe of Coucy, one of the Baalei Tosafos, whose magnum opus, the Sefer HaMitzvos HaGadol (often abbreviated Smag) is a compendium of all the halachic conclusions of the Gemara, with a full analysis of the author’s decision, organized according to the list of the 613 Mitzvos. Although the book is not commonly studied today, and it is never used as the final halachic decision, at one time it was the major decisor of halachah for Ashkenazic Jewry.

What is interesting is that although he also organized the Mitzvos in a logical fashion, similar to the approach of the Rambam, his list is in a very different order from that of the Rambam. Nevertheless, his count is so similar to the Rambam that in his list of 248 positive Mitzvos, he agrees with the Rambam on 245 of them.

His extra three, which the Rambam does not count, include:

To accept Hashem’s judgment on anything that happens. Whereas the Smag counts this as one of the 613 Mitzvos, deriving it from a pasuk, the Rambam does not count this as one of the 613 Mitzvos.

Among the 613 Mitzvos, the Smag counts the Mitzvah to calculate seasons and the movement of heavenly bodies in order to know how to determine the Jewish calendar. The Rambam mentions in his second rule that one should not count this as a separate Mitzvah, because it is derived from a drasha. The Smag does not accept this rule.

The Third Smag Addition

The Smag counts as a positive Mitzvah: To distance oneself from falsehood. I admit to having no idea why the Rambam does not count this as a Mitzvah. He includes all the laws of distancing oneself from falsehood under the mitzvas lo saaseh of “Do not bear a false story,” a lo saaseh that includes the laws of speaking loshon hora. However, as we mentioned earlier, the Rambam contends that one counts overlapping Mitzvos aseh and lo saaseh separately, so why does he omit the count of this Mitzvah?

In conclusion, we have seen that much halachic literature is devoted to enumerating and understanding the various counts of the 613 Mitzvos. Some people have the practice of reviewing the Mitzvos that are included in the week’s Torah reading at the Shabbos table, a minhag that is not only praiseworthy, but has the additional benefit in that it familiarizes us with all the 613 Mitzvos.

 

Shabbos Shirah

By Rabbis Avraham Rosenthal and Yirmiyohu Kaganoff

Question #1: Shabbos Shirah

Why is this Shabbos called Shabbos Shirah?

Question #2: Shouldn’t I know where I stand?

Should I stand or sit while reciting Oz Yashir?

Question #3: Yom Layabashah

Why do some people recite Yom Layabashah at a bris?

Shabbos Parshas Beshalach is called Shabbos Shirah – the Shabbos of the Song. This refers to the Shiras HaYam, the song of thanks that the Jewish nation sang to Hashem after crossing through the Red Sea on dry land and seeing their enemies drown. The name Shabbos Shirah appears already in early authorities (Sefer HaMinhagim [Tyrnau], s.v. Shevat; Sefer Maharil, Hilchos Teves-Shevat-Adar, #7).

WHY SHABBOS SHIRAH?

It is interesting to note that Shabbos Shirah is the only Shabbos that has a unique name based on the parsha that is not taken from the opening words of the parsha. The Shabbosos of the four parshiyos, Shekalim, Zachor, Parah and HaChodesh and Shabbos Shuva receive their names from the maftir, not from the parsha. Shabbos Shuva, Shabbos Chazon, and Shabbos Nachamu receive their names from the haftarah. The Shabbosos on which we read other noteworthy events do not have a unique name; thus, Shabbos Parshas Yisro is not called Shabbos Aseres HaDibros and Shabbos Parshas Noach is not Shabbos HaMabul. Why does the Shabbos of Parshas Beshalach get this distinction? Additionally, the shirah is not the only seminal topic of the parsha. There is also Parshas HaMan and Parshas Marah, in which Hashem starts giving mitzvos to Klal Yisroel, one of which is Shabbos. Why is this Shabbos not referred to as Shabbos HaMan or Shabbos Shabbos?

The Shirah is unique. The Torah consists of what Hashem said to Klal Yisroel. Az Yashir, however, is what Klal Yisroel said to Hashem, and what they said became part of the Torah. This is because when they sang this shirah, they attained the highest levels of prophecy, as it says, “a maidservant saw at the sea more than what (the great prophets) Yeshayahu and Yechezkel saw” (Mechilta d’Rebbi Yishmael, Beshalach, Mesichta d’Shirah #3). Therefore, we call this Shabbos ‘Shabbos Shirah’, in order to remind ourselves of the great spiritual potential of Klal Yisroel (Sefer HaToda’ah, Shevat, s.v. Shabbos Shirah).

PIYUTIM: YOTZROS AND GEULAH

The authors quoted above discuss two minhagim in relation to this Shabbos. Sefer HaMinhagim writes that, “On Shabbos Shirah, we say Yom LaYabashah, and some places do not say it.” He is referring to the piyut that is often sung at the meal following a bris milah. This piyut was originally part of the davening in some communities and is referred to as a “Geulah.” Let us explain this term.

There was an old custom in Klal Yisroel to recite additional tefilos called Yotzros or Piyutim on Yomim Tovim and special Shabbosos. The most commonly still recited Yotzros are those added to the Shabbos morning davening in some communities, when reading the four parshiyos: Shekalim, Zachor, Parah and HaChodesh. They are incorporated into the first bracha of birchos Kri’as Shema, which starts with the words, “Yotzair or,” hence the term “yotzros.”

Another type of addition is called a “geulah.” While yotzros are added to the first bracha of birchos Kri’as Shema, the “geulah,” as implied by the name, is added to the last bracha, which ends with “Ga’al Yisroel.” The piyut of Yom LaYabashah was added to the davening on Shabbos Parshas Beshalach and on Shabbos and other Yomim Tovim whenever there was a bris. This is probably why it became customary to sing this piyut at the bris meal.

Although the minhag of reciting Yom LaYabasha as a piyut during davening has fallen into disuse in most communities, there are still many who are accustomed to sing it during the meals of Shabbos Shirah (Darchei Chaim v’Shalom #832; Siddur Beis Aharon [Karlin]; Sefer Mo’adim LeSimcha, pg. 74).

MINHAGEI HATEFILAH

In many communities there were and still are various minhagim regarding the davening on this Shabbos. In Frankfurt, there was a custom to sing Az Yashir during Pesukei d’Zimra and also to sing from “MiMitzrayim ge’altanu” until “Tzur Yisroel” in birchos kri’as Shema (Sefer Moadim LeSimcha, pg. 69, quoting seforim of minhagei Frankfurt).

In several kehilos, although the custom is not necessarily to sing Az Yashir, they recite it posuk by =posuk (Minhagei Mattersdorf; Darchei Chaim v’Shalom #832; Minhag Belz). It seems, however, that there are two minhagim as to how the Shirah is said. In some locations, the entire congregation, including the chazzan, recites each possuk in unison; while in other shuls, the chazzan recites a possuk and the tzibbur repeats it. It has been suggested that these two approaches of how to recite the shirah have their roots in a disagreement in the Gemara.

The Gemara (Sotah 30b) discusses how the Bnei Yisroel recited the shirah after Kri’as Yam Suf. One opinion maintains that Moshe said one posuk and the Bnei Yisroel repeated it; Moshe said the next posuk and they repeated that posuk as well, and so on. According to another opinion, Moshe initiated the shirah and the rest of Klal Yisroel attained prophecy and were able to join in with him, reciting it simultaneously (Sefer Nachalah LeYisroel 10:56, quoted in Sefer Mo’adim LeSimchah, pg. 70).

It is worthwhile to point out that the Mishnah Berurah (51:17) writes regarding the daily recital of Shiras HaYam in pesukei d’zimra: “One should recite shiras hayam joyfully, and he should imagine that he crossed the sea that day. One who recites it with joy will receive forgiveness for his sins.”

MINHAGIM DURING KRI’AS HATORAH

When leining from the Torah on fast days, most shuls have a custom that three pesukim are first recited aloud by the tzibbur and then by the ba’al kriah: 1) Shuv mei’charon apecha (Shemos 32:12), 2) Hashem, Hashem [the thirteen Divine attributes of mercy] (ibid. 34:6-7), and 3) veSalachta (ibid. 34:9). One of the sources of this minhag is the Avudraham (Seder HaParshiyos veHaHaftaros in the name of Rav Saadiah Gaon). However, he maintains that this custom of reciting pesukim out loud by the tzibbur was not limited to these three pesukim. Rather, he quotes that there are ten such pesukim where the custom is to do so, seven of which are in this week’s parsha: 1) Hashem yilachem lachem (ibid. 14:14), 2) Vaya’aminu baHashem (14:31), 3) Hashem Ish milchamah (15:3), 4) Mi chomocha ba’eilim (15:11), 5) Mikdash Hashem konanu yadecha (15:17), 6) Hashem yimloch l’olam va’ed (15:18), 7) Ki macho emcheh (17:14), 8-9). However, this custom has fallen into disuse, except for the pesukim of the fast day reading.

The generally accepted minhag is that when leining Az Yashir on Shabbos Shirah, a special, melodious tune is used instead of the regular trop (cantillations). However, different shuls have varying minhagim as to which pesukim are read with the special tune (Sefer Moadim LeSimcha, pg. 73).

It is also common practice to give honor to the Rav of the community by giving him the aliyah in which Shiras HaYam is read (Shu”t Radvaz #304; Magen Avraham 428:8).

In the event that there are many people who require an aliyah on Shabbos and it is customary to add aliyos beyond the mandatory seven, the minhag is that the Shirah is read in one aliyah and not divided (Avudraham ibid.; Sha’arei Efraim 7:25).

STANDING UP

In many kehilos, the minhag is to stand during the aliyah of Shiras HaYam from “Vayosha” until the end of the Shirah (Sefer Ketzos HaShulchan 84, Badei HaShulchan 22). One reason is based on the idea that the recital of the Shirah by Moshe and Bnei Yisroel was comparable to the recital of Hallel (Mishnah Sotah 27b). The halacha is that Hallel is to be said standing (Shulchan Aruch 422:7), because one is testifying to the fact that Hashem did miracles for us, and testimony must be said while standing. Therefore, the custom is to stand during the Shirah, and perhaps this is also the reason why many people have the practice of standing for Az Yashir, when reciting it during pesukei dezimra (Kitzur Shulchan Aruch 14:4; Badei HaShulchan ibid.).

Another reason for standing during the Shirah is based on the Zohar (Lech-Lecha 81b), which says that Dovid HaMelech merited to be the ancestor of Moshiach, because he stood up in order to say Shirah, as it says (Tehillim 119:62), “I will arise to praise You” (Siddur Tzelosa deAvraham, pg. 168).

On the other hand, there are those who do not have this minhag to stand during Krias HaTorah (Kaf HaChaim 494:30). It is reported that although Rav Yaakov Yisroel Kanievsky z”l stood during the leining of the Aseres HaDibros, he remained seated during Az Yashir (Sefer Orchos Rabbeinu, vol. I, pg. 120 #85).

Additionally, there are those who argue that if one is sitting during leining, he should not get up for the Shirah or the Aseres HaDibros. This is based on a Gemara (Brachos 11b-12a) that in the Beis HaMikdash the Aseres HaDibros were read together with Krias Shema on a daily basis, and it was suggested to institute this outside the Beis HaMikdash, as well. However, it became necessary to abandon this plan, due to the heretics who tried convincing the simple people that only the Aseres HaDibros are the truth, while the rest of the Torah is not, chas veshalom. They reasoned that since it is only the Aseres HaDibros that are being read, it must be the only thing that Hashem said at Har Sinai (Rashi ibid.). Based on this Gemara, some maintain that if we stand up, specifically, for the Aseres HaDibros or Az Yashir, this will lead people to claim that only these two parshiyos are Toras emes.

However, Rav Moshe Feinstein z”l (Shu”t Igros Moshe, Orach Chaim vol. IV, #22) maintains that this is not a reason to abandon the custom of standing while these parshiyos are read. The Gemara was speaking of a specific incident, and we cannot extrapolate a new prohibition from there. Rav Moshe Sternbuch, shlit”a, suggests that if one wishes to be stringent and is concerned about the above argument, he should stand up a few pessukim before the Shirah or Aseres HaDibros. In this way, he will not be standing up specifically for these two parshiyos, and there can no longer be a claim that only these are emes (Shu”t Teshuvos veHanhagos, vol. I, #144; see also Pischei She’arim to Sha’arei Efraim 7:37).

If one is accustomed to sit during Aseres HaDibros or the Shirah and he finds himself in a shul where the tzibbur stands, he must act in accordance with the local custom (Sha’arei Efraim ibid.; Shu”t Igros Moshe, ibid.).

* In this week’s article in Yated Neeman, Rabbi Kaganoff discusses the custom of feeding the birds on Shabbos Shirah.

EATING WHEAT

In addition to the custom of giving wheat or other food to birds on Shabbos Shirah, there is another fascinating minhag connected to wheat and Shabbos Shirah. There is a discussion among the poskim regarding the correct bracha acharonah to be recited after eating wheat. This topic is beyond the scope of our discussion. However, the Bach writes (Orach Chaim 208) that, “according to the custom of eating whole wheat grains on Shabbos Shirah, one should be careful… only to eat them during a meal.” In order to gain an appreciation of the age of this custom, one should keep in mind that the Bach lived over 350 years ago. This minhag was prevalent in Western Europe and is also cited in Minhagei Frankfurt and Minhagei Chasam Sofer.

One reason cited for the custom is because the manna looked like grains of wheat. Therefore, on Shabbos Shirah when the parshas =haman is read, we eat wheat, as a remembrance of the manna (Likutei Mahari’ach, Teves).

Rav Yehudah Michal Benga Segal, a trustee and a ba’al tekiah of the Frankfurt kehillah over 250 years ago, in his sefer Koach Yehudah, suggested another possible reason behind this custom. Although the primary time for commencing the Pesach preparations is Purim, as is indicated by the halacha that one begins studying Hilchos Pesach thirty days before the holiday (Shulchan Aruch Orach Chaim 429:1), some things required more time. One such item was wheat for matzos. The grains had to be checked, ground, sifted and stored in a chometz-free environment, all of which took much time and effort. Owing to the poor travel conditions of European winters, these preparations had to be started well before Purim.

Therefore, the Pesach wheat was bought for Shabbos Shirah, which is usually two months before Pesach, in order that it be ready for grinding to make the Pesach matzah flour. Once they had the Pesach wheat, they would eat some of it on Shabbos Shirah. This was based on another minhag, cited in the poskim (Magen Avraham 430:1, quoting Maharshal), to eat specifically Pesach wheat or flour before Pesach. The reason behind that minhag is beyond the scope of our discussion (see Sefer Mo’adim LeSimcha, vol. III, pg. 66). Interestingly, some have a custom of preparing a kugel from Pesach flour for Shabbos Hagadol (Luach Minhagei Belz).

THE TEN SONGS

According to the midrash (Mechilta d’Rebbi Yishmael, Beshalach, Mesichta d’Shira, #1), ten songs were sung to Hashem: 1) On the night of Yetzi’as Mitzrayim, 2) after Kri’as Yam Suf, 3) by the well in the desert (Bamidbar 21:17), 4) Moshe’s transcribing the Torah, which is referred to as a shirah (Devarim 31:24), 5) Yehoshua sang shirah when he stopped the sun in Givon and the moon in Emek Ayalon (Yehoshua 10:12), 6) Devorah and Barak ben Avinoam sang shirah after Sisra’s defeat (Shoftim 5:1), 7) Dovid sang shirah when he was saved from his enemies (Shmuel II 22:1), 8) Shlomo sang shirah when he inaugurated the Beis HaMikdash (Tehillim 30:1), 9) King Yehoshafat sang shirah and was saved from the enemy (Divrei HaYamim II 20), 10) the shirah that will be sung in the future when Moshiach comes (Yeshayahu 42:10).

The midrash points out that the first nine songs were referred to in the feminine form, shirah, while the last one, shir, is masculine. The reason for this is that, generally speaking, after a woman gives birth to a child, she will eventually repeat the entire process, thus subjecting herself again to the pains of childbirth. This cycle of childbirth, pain and childbirth represents our existence in this world. Hashem brings salvation, which prompts shirah. He again puts us through trial and tribulation, and again saves us. This is all true until Moshiach comes, when the shir that will be sung is “masculine.” A man cannot give birth. Once we experience the final geulah and sing that final shir, there will be no more pain and suffering. May we merit to see it very soon!

 

The Creation of the “Permanent” Calendar

calendar-1568148-639x424When the Torah commands us to create a calendar, it includes two different responsibilities: First, to have Rosh Chodesh and the length of each month determined on the basis of when the new moon appears, and, second, to have the holiday of Pesach fall in the spring and the holiday of Sukkos in the autumn (in the northern hemisphere). Thus, we have two separate and very different requirements, one of having the months determined by the moon, which is a little more than every 29½ days, and having years that coordinate with the seasons, which follow the solar year, which is a bit less than 365¼ days.

To accomplish that the dates and holidays should fall according to the seasons, the halacha is that some years have 12 months, or approximately 354 days, and others have 13 months, or approximately 384 days. This ensures that the holidays fall in their appropriate seasons. The mitzvah of the Torah is that the head of the Sanhedrin should be in charge, every month, to decide whether a month is 29 days long or 30, and of deciding whether a year should have an extra month. In the latter case, he appointed a special committee, comprised of members of the Sanhedrin, to review the relevant information and determine whether the year should be 13 months (a leap year) or only 12 (a common year).

By the way, after the destruction of the Beis HaMikdash, the main Beis Din was not located in Yerushalayim, but wherever the Nasi of the Jewish people resided, as long as it was in Eretz Yisrael. This included several communities at various times of Jewish history, including Teverya, Yavneh, and Shafraam.[i] Indeed, during this period, if the head of the Beis Din was in the Diaspora and there was no one of his stature remaining in Eretz Yisrael, the special Beis Din met outside the land of Israel.[ii]

Initially, all these decisions were made by the heads of the Sanhedrin, and, indeed, when Moshiach comes, we will again have this system. This was the system in place for thousands of years – from the time of Moshe Rabbeinu until about 250 years after the destruction of the second Beis Hamikdash. At that time, the head of the Sanhedrin, Hillel Hanasi (not to be confused with his ancestor, Hillel Hazakein), realized that, because of Roman persecution, the Sanhedrin’s days were numbered and it would be necessary to switch to a different system for determining the calendar. Hillel Hanasi implemented a temporary Jewish calendar, which is the one that we currently use. Although many people refer to it as a “permanent calendar,” it will be in use only until we again have a Sanhedrin, which will then be in charge of the calendar.

Hillel’s calendar kept the same basic structure of 29- and 30-day months and 12- and 13-month years, but it is based purely on calculation and not on observation. The two major changes in this new calendar are:

  • A Leap of Fate

The leap years now occur following a regular pattern of seven leap years and 12 non-leap (usually called “common”) years in a 19 year cycle. The third, sixth, eighth, eleventh, fourteenth, seventeenth and nineteenth years of the cycle are always leap years, and the rest are common years. This year is the nineteenth year of the cycle, and thus is a leap year.

  • The Haves versus the Have-nots

The length of most months is now predetermined. Tishrei, Shvat, Adar Rishon (which exists only in a leap year), Nissan, Sivan and Av always have 30 days; whereas Teiveis, regular Adar (in a common, non-leap year), Adar Sheini (in a leap year), Iyar, Tamuz and Elul are always only 29 days long. The two months of Cheshvan[iii] and Kislev are the only months whose length varies, sometimes 29 days and sometimes 30.[iv] A year in which both Cheshvan and Kislev have only 29 days is called chaseirah, lacking or defective; one in which Cheshvan has 29 days and Kislev has 30 is called kesidrah, as expected or regular; and one in which both Cheshvan and Kislev have 30 days is called sheleimah, full or excessive.

The terms chaseirah, kesidrah, and sheleimah apply in both common and leap years.[v] Thus, in the new calendar, all common years are either 353 days (if both Cheshvan and Kislev have 29 days), 354 days (if Cheshvan has 29 days and Kislev has 30) or 355 days (if both Cheshvan and Kislev have 30 days); all leap years are either 383 days (if both Cheshvan and Kislev have 29 days), 384 days (if Cheshvan has 29 days and Kislev has 30) or 385 days (if both Cheshvan and Kislev have 30 days). Since Adar in a common year always has 29 days, Adar Rishon always has 30 days, and Adar Sheini always has 29 days, like the regular Adar, the addition of an extra month of Adar in a leap year always adds exactly thirty days.

(Because the nineteen-year cycle synchronizes the lunar calendar with the solar year, the Hebrew and English dates of births, anniversaries and other occasions usually coincide on the nineteenth anniversary of the event. If yours does not, but is off by a day or two, do not fret. Your record keeping is accurate, but the cycle of nineteen years only relates to whether it is a leap year, not to whether the years are of the exact same length. The lengths of Cheshvan and Kislev are determined by other factors, and this will affect whether your 19th, 38th or 57th birthday or anniversary exactly coincides with its Hebrew/secular counterpart, or whether it is slightly off.)

The new calendar bases itself on an estimate, an average time that it takes the moon to revolve around the Earth. This molad calculation is that each new moon appears 29 days, 12 hours, and 793 chalakim (singular: chelek) or 793/1080 of an hour after the previous new moon. Once one knows when the new moon, called the molad, occurred on the previous Rosh Hashanah, one could now add either 12 or 13 times the above figure and determine the time of the molad in the next year, which is the most important factor in determining the date of the next Rosh Hashanah. (The term chelek, used on Shabbos Mevorchim when announcing when the molad is, equals 1/1080 of an hour, or 3 and 1/3 seconds.)

There is one other factor: Sometimes Rosh Hashanah takes place not on the day of the molad, but the next day, because the molad occurred on the afternoon of Rosh Hashanah and would not be visible in Eretz Yisrael until the next day. When Rosh Hashanah was determined by the observation of witnesses, this information was important not only in determining when Rosh Hashanah falls, but also for interrogating potential witnesses testifying to the appearance of the new moon. However, Hillel’s calendar is no longer dependent on witnesses, Rosh Hashanah is still not established on a day when the molad falls on its afternoon, but is postponed. Based on this information, one can determine which day should be Rosh Hashanah in the coming year.

Another major innovation

Did you ever notice that Yom Kippur never falls on Friday or Sunday? If it did, we would observe two consecutive days that both have the stringency of Shabbos. Indeed, when the calendar was based on observation, this could and did happen.[vi]

However, Hillel Hanasi’s calendar included some innovations that were not part of the earlier calendar. His calendar does not allow Yom Kippur to fall on either a Sunday or a Friday, thus avoiding the difficulty of having two Shabbos-like days fall consecutively. Hillel Hanasi’s calendar also does not allow Hoshana Rabbah to fall on Shabbos, which would cause the cancellation of the Hoshanos ceremony. As long as the calendar was determined on the basis of eyewitness testimony, it was halachically more important to have Rosh Chodesh fall on its correct day than to be concerned about difficulties created when certain holidays fall on or next to Shabbos.[vii] However, once we are fulfilling the mitzvah in a less-preferred way with Hillel’s “permanent” calendar, keeping Yom Kippur from falling on Friday or Sunday, and Hoshana Rabbah from falling on Shabbos, are factors to be included in establishing the calendar.

In order to accommodate these innovations, Rosh Hashanah could fall only on Monday, Tuesday, Thursday or Shabbos, since if it falls on Sunday, Hoshana Rabbah falls on Shabbos; if Rosh Hashanah falls on Wednesday, Yom Kippur falls on Friday; and if Rosh Hashanah falls on Friday, then Yom Kippur falls on Sunday. This would mean that when Rosh Hashanah in the coming year would naturally fall on Sunday, Wednesday or Friday, an extra day is added to the calendar to make sure that Rosh Hashanah falls on Monday, Thursday or Shabbos instead.[viii] This calendar concept of guaranteeing that Rosh Hashanah not fall on Sunday, Wednesday or Friday is called לא אד”ו ראש, lo adu rosh, meaning that the beginning of the year, Rosh Hashanah, does not fall on א, the first day of the week, Sunday; ד, Wednesday; or ו , Friday. It is predominantly for this reason that there was a need to have Cheshvan and Kislev sometimes 29 days and sometimes 30, in order to make the exact length of the years flexible.

Although the innovation of adding one day to the year so that Rosh Hashanah not fall on a Sunday, Wednesday or Friday seems relatively simple, it sometimes leads to more complex considerations. In some years, adjusting Rosh Hashanah to avoid Sunday, Wednesday and Friday creates a problem in the year before or the year after. Since Hillel Hanasi’s calendar did not allow a common year to be longer than 355 days and a leap year to be shorter than 383 days, the only way to avoid problems is to plan the calendar an additional year in advance and adjusting the calendar appropriately. In order to accomodate all these various calendar requirements, Hillel Hanasi established four rules, called dechiyos, which, together with the sod ha’ibur calculation and the 19 year leap year rotation, form the basis for determining our calendar.[ix]

To explain how this works, let us choose a sample year in which the molad calculation for Rosh Hashanah fell on Wednesday evening, and Rosh Hashanah therefore falls on Thursday, which is what we would expect. However, the next year’s molad for Rosh Hashanah falls on Tuesday less than two hours before the end of the day. Although the molad falls on Tuesday, it is too late in the day for this molad to be visible in Eretz Yisrael, and therefore, Rosh Hashanah cannot occur before Wednesday. However, since Rosh Hashanah cannot fall on a Wednesday because of the rule of lo adu rosh, it must be pushed off to Thursday, or two days after the molad. For this reason, that year must have an extra day. However, each year is limited how long it may be. In order to accommodate the proper dating of the second year, the year prior would have to have more days than the calendar allows. In order to resolve this, the year before is made longer than necessary. What is happening is that one Rosh Hashanah is postponed to allow that the next Rosh Hashanah should fall out in an acceptable way.

As I mentioned above, although the leap years follow an absolute nineteen-year cycle, whether the year is chaseirah, kesidrah, or sheleimah is determined by the other factors we have noted, and therefore does not follow the nineteen-year pattern. Rather, one first calculates when Rosh Hashanah should fall out based on the sod ha’ibur, checks the rules of the dechiyos to see what adjustments need to be made, and then determines on which day Rosh Hashanah should fall. As a result, whether the year in question needs to be chaseirah, kesidrah, or sheleimah requires calculating not only this year’s schedule, but also the coming year’s calendar requirements.

Based on all these calculations, there are seven prototype years for a common year and seven for a leap year that fulfill the calendar rules. Each of these fourteen prototype “years” is called by a three letter acronym in which the first letter identifies the day of the week of the first day of Rosh Hashanah, the second letter denotes whether the year is chaseirah, kesidrah, or sheleimah, and the third letter identifies the day of the week of the first day of Pesach. No letter is used to denote whether the year is common or leap, because this is understood by knowing how many days of the week Pesach follows Rosh Hashanah. In a common year that is kesidrah, Pesach falls two days later in the week than Rosh Hashanah, and in a leap year, it falls four days later, the two additional days being the extra two days that the extra month of Adar Rishon, thirty days long, adds to the day of the week count. Of course, these calculations must be adjusted one day in either direction, if the year is chaseirah or sheleimah. Either way, calculating how many days are between Rosh Hashanah and Pesach tells us whether it is a common or leap year, so there is no need to include this in the acronym.

Thus, this year 5776 is known as בשז because Rosh Hashanah fell on Monday (ב), it is a sheleimah (ש) year in which both Cheshvan and Kislev contain 30 days, and the first day of Pesach falls on Shabbos (ז).

At this point, we have the basic information to figure out how our calendar operates. Although we may not realize it, we actually already have enough information at our fingertips that we could already calculate the calendars for the coming years – indefinitely.

Conclusion

We understand well why our calendar involves use of the solar year – after all, our seasons, and the appropriate times for our holidays, are based on the sun. But why did the Torah insist that our months follow the moon? It seems that we could live fine without months that are dependent on the moon’s rotation around the earth!

One answer to this question is that the waxing and waning of the moon is symbolic of our own our relationship with Hashem – which is sometimes better and sometimes less so. However, we know that we can always improve that relationship, just as the moon after its waning and almost disappearing always renews itself.

 

[i] Rosh Hashanah 31b

[ii] Berachos 63a; Rambam, Hilchos Kiddush HaChodesh 1:8

[iii] Although the correct name of the month is Marcheshvan, we will follow the colloquial use of calling it Cheshvan.

[iv] Rambam, Hilchos Kiddush Hachodesh 8:5

[v] By the way, because Kislev is sometimes 29 days and sometimes 30, the last day of Chanukah is sometimes on the second day of Teiveis, and sometimes on the third.

[vi] She’iltos of Rav Acha’ei Geon, #67; Rambam, Hilchos Shabbos 5:21; Ha’emek She’eilah ad loc., Note 22.

[vii] Ha’emek She’ailah ibid; Gri”z, Hilchos Kiddush Hachodesh

[viii] Rambam, Hilchos Kiddush Hachodesh 7:1.

[ix] Because these dechiyos are extremely technical, I did not explain all of them.

The Contemporary Kosher Bakery and Its Halachic Issues

My wife and I are thrilled to announce the engagement of our daughter, Shalva, to Itzik (Avraham Yitzchak) Scarr, son of Dr. Tzvi and Mrs. Cindy Scarr of Har Nof, Yerushalayim. The chosson studies in Yeshivas Chevron in Yerushalayim.

Frogs jumping into Egyptian kneading bowls and ovens will create kashrus problems for the local bakeries. Thus, I present a revised version of part of an article I wrote originally over thirty years ago.

The Contemporary Kosher Bakery and Its Halachic Issues

bakeryQuestion #1: Labels

“May I rely on the label of a product that it contains no non-kosher ingredients?”

Question #2: Visiting Mom, but May I Eat?

“I will be visiting my mother, who lives in a small North American community. How can I find out if I can use the bread and other products made in the local ‘kosher-supervised’ bakery?”

Question #3: How Can They?

“How can a hechsher supervise as kosher a business that is open on Shabbos?”

Answer:

Since the twenty-first-century household does not bake its daily bread at home, a kosher bakery is a necessity for any sizable Jewish community. This often becomes one of the many challenges of a local rabbi: how to have a reliably kosher bakery in a town where there are not enough Jews who keep kosher to make it worthwhile?

Often, the situation is not ideal. In general, a food establishment should seek to be kosher supervised, rather than be solicited to become kosher. However, because of the need for a local kosher bakery, the local rabbi/rabbonim may not have that luxury, and they may have to convince a proprietor that it is worth his while to be kosher supervised.

Numerous kashrus and halachic issues must be clarified to enable this supervision. The rav hamachshir, or supervising rabbi, must assume many responsibilities, including ascertaining the kashrus of all incoming ingredients, the proper koshering of equipment, the maintenance of separate production facilities for dairy and pareve, assuring that no dairy products are added to the breads, and determining the practicality of the products being pas Yisrael (bread where a Jew participated in the baking). In other articles, I discussed at length the issues germane to making dairy bread.

To begin with, let me explain why one may not use baked goods on the basis of a scanning of the label to see that no obvious animal ingredients appear. There are several reasons that this is true, even if one knows that the label is accurate, which, I can tell you from personal experience, is not always the case. Even in an instance where the label meets legal requirements, and the government concerns itself with truth in labeling, government regulation does not usually require the listing of every ingredient on the label of a product. For example, release agents, which keep food products from sticking to machinery, may be produced from animal shortening. Legally, they are considered production aids, and not ingredients, and, as such, do not need to be listed on the label. Yet, they are sprayed or smeared directly on food, or on equipment immediately before food items are placed on them. Thus, the fact that they are legally not considered ingredients does not provide any halachic leniency. Thus, bread and other products must be certified kosher by a reliable rabbi or organization.

Ingredients

Even in a bakery where the owner is attempting to keep kosher, there are commonly problematic ingredients, such as the stabilizers, emulsifiers, and dough mixes since they frequently are animal-shortening based or include animal fats. Because these products often present a kashrus problem, it is fairly common to find that the same manufacturer produces two varieties of the product – one, a less expensive animal-oil based non-kosher version, and a replacement product, manufactured from vegetable oils and produced under responsible kosher supervision.

Tolayim

Of course, the hechsher also needs to make certain that the raw materials and the production facility itself are maintained in a way to resolve all kashrus concerns about insect contamination.

Raisin juice

Specifically in the case of pastry or some varieties of sweet bread or bagels, raisins can create a halachic problem that may go unnoticed by the hechsher. In addition to the hechsher’s requirement to ascertain that there are no tolayim concerns, raisins are often mixed or cooked with water to create a raisin juice, which functions both as a sweetener and as a natural, healthy preservative. However, this raisin juice now has a halachic status of wine, and when handled by a non-Jew becomes prohibited because of stam yeinam. Thus, one can have a very unusual situation where mixing two kosher ingredients, raisins and water, creates a non-kosher product.

Equipment

When the hechsher begins, the rabbi/rabbonim need to decide how to kasher the equipment of the bakery. This can sometimes be quite challenging, since the equipment may require libun gamur, burning in fire, which is not easy to do.

A bigger problem is keeping dairy and pareve equipment separated. Many years ago, I was asked to perform a kashrus review of a local vaad hakashrus. When I checked the shomer Shabbos bakery that the whole town was using, I discovered that the baking trays for milchig and pareve were not being kept separate. Nor was there any separation of production schedule. This meant that a tray may have been used to bake cheese Danishes, and then immediately used for challos for Shabbos without even  being cleaned in between.

I drew up a program to be followed to keep the breads pareve, but, to the best of my knowledge, the plan was not followed.

Jewish owned

If the local bakery is Jewish owned, additional questions must be dealt with, including Shabbos and Pesach production, ritual immersion of the equipment in a mikveh, and hafrashas challah — proper separation of the challah portion. (It is important to clarify that the commonly used word challah, meaning Shabbos bread [as I used it in the previous paragraph], is technically a misnomer. Here, I am using the word challah to mean the special portion removed from dough as mandated by Jewish law.) I will discuss the issues germane to challah taking in a different article.

Shabbos

Frequently, a local rabbinate, particularly in a community with a small Jewish population, is unable to arrange for a Jewish-owned bakery to be closed on Shabbos. This creates a strong moral dilemma for the rabbonim involved. By providing such a bakery with kosher certification, one is providing tacit approval to public desecration of Shabbos. In addition, one must deal with the halachic issues regarding whether the products made by a Jew on Shabbos are permitted to be used by a consumer after Shabbos. In practice, many communities allow the existence of these bakeries and provide them with kosher supervision, reasoning that this way the community at least has kosher product.

It has become more common today to have a kosher supervised bakery that is closed on Shabbos inside a supermarket that is open on Shabbos. In this instance, the supervising organization is not assuming any responsibility for the supermarket, which indeed sells non-kosher. The visiting consumer may still want to verify whether the standard maintained at the bakery is of a level similar to what he is accustomed.

Chometz and Pesach

A more serious problem is the instance of a bakery that is open on Pesach. Any chometz owned by the bakery during the festival is forbidden for use, even after Pesach. The rabbinate could remove supervision after Pesach, until all chometz items that were owned during the holiday have been consumed, thus permitting only items which were acquired after Yom Tov, but of course this leaves the community without “Kosher” bread for the duration. Based on a responsum from Rav Moshe Feinstein, some rabbis arrange a sale of all chometz items with a standard mechiras chometz document, but not all authorities agree that this sale has validity. The Maharam Schick, the Tevuos Shor, and others state that the sale of chometz is effective only for someone who does not want to own chometz during Pesach. According to this opinion, the mechiras chometz of a bakery that is open on Pesach would have no halachic validity. The bakery’s products may not be used until all chometz that it owned during Pesach has been used up or discarded.

Because of the potential chillul Hashem of having a “kosher supervised bakery” that operates on Shabbos, I know of hechsherim that supervise the “ingredients” of a bakery, but not the bakery itself. They contend, therefore, that it is not their responsibility to deal with the concerns about challah, chometz, or Shabbos desecration.

Personally, I do not see this as a solution to a problem, but as the cause of the problem. Even if we assume that the product produced on Shabbos is still kosher, and that it is not our concern to warn people about chometz she’avar alav hapesach, the average consumer does not realize that he is required to take challah. As someone once humorously put it, “this is a hechsher that everything was kosher before it got into the bakery, but what left might be treif.”

Pas Yisrael

The Mishnah in Avodah Zarah states:

The following items of a non-Jew are forbidden to be eaten, but are permitted for benefit: milk milked by a non-Jew without a Jew supervising; bread and oil of a non-Jew, although Rebbe and his rabbinic court permitted the oil of a non-Jew, and items cooked by a non-Jew [bishul akum, which, if certain conditions exist, would not be permitted.]

The latter items are prohibited because of the likelihood that increased social interaction would lead to intermarriage. Many of the rishonim note that there is evidence that the prohibition against pas akum, bread baked by a non-Jew, was not accepted in all places when introduced, because of the principle that a rabbinic injunction becomes universally binding only if the majority of people abides by it. Based on this approach, the Rema rules that one may use bread baked by gentiles for commercial sale, which is called pas paltar. Other opinions state that the permissibility of pas akum is dependent on whether there is comparable pas Yisrael (bread baked by a Jew) available. When pas Yisrael is available, one may not use pas akum. However, when suitable pas Yisrael is not available, one may use pas paltar. Bread baked for private use is still included under the rabbinic injunction of pas akum except for rare circumstances.

The Shulchan Aruch reaches the following conclusion: In a place where the custom is to use pas paltar, one is permitted to use bread prepared for commercial usage – provided that no comparable pas Yisrael is available. If pas Yisrael becomes available, then the pas paltar should not be used until the pas Yisrael is no longer available. The Rema disagrees and says that pas paltar can be used even when pas Yisrael is available in any place where the custom is to permit pas paltar. The Bach and the Gra follow the opinion of the Rema, whereas other opinions agree with Shulchan Aruch and permit pas paltar only when pas Yisrael is not available.

During the Ten Days of Repentance, even a place where the custom is to be lenient in the usage of pas paltar is required to be stringent. Most opinions also agree with the Magen Avraham that on Shabbos, one should use only pas Yisrael.

The entire issue of whether and under what circumstances a Jew may eat bread baked by a non-Jew is problematic, if the entire baking procedure is done without any participation of a Jew. However, if a Jew increases the heat of the fire being used for baking in any way, even by merely symbolically adding a splinter to the fire, the bread baked is considered pas Yisrael. The Rema furthermore states that if a Jew increased the fire once, and the oven was not turned off for twenty-four consecutive hours, then all the bread baked in that time is considered pas Yisrael. The Chachmas Adam concurs with the Rema, although the Aruch Hashulchan does not accept all these leniencies.

In conclusion, according to predominant opinion, if a Jew participated in heating the oven, then the bread is considered pas Yisrael. If no Jew participated in heating the oven, the bread baked by a non-Jew can be used wherever there is no suitable usage of pas paltar, except during the Ten Days of Repentance and Shabbos. According to the Rema, in a place where the custom is to be lenient, one can use pas paltar, even if pas Yisrael is available.

We have as yet not discussed the complicated topic of separating challah from a bakery that is owned and managed by a non-observant Jew. We will continue that part of this topic in a future issue. I am also planning articles that will discuss pas akum, the stam yeinam issues germane to the use of raisin juice, and the topic of dairy bread in more detail.

Conclusion

Based on the above information, we can gain a greater appreciation as to how hard it is to maintain a high kashrus standard. We certainly have a greater incentive to become better educated kosher consumers who better understand many aspects of the preparation of kosher food, and why it is important to ascertain that everything one consumes has a proper hechsher. We should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

 

What Do I Do with My Sheimos?

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I know that the name of the parsha is Shemos, and not Sheimos, but…

What do I do with my Sheimos?

Question #1:

vintage-pagesOne of the shul’s baalei batim calls the rav with the following concern:

“The shul’s sheimos collection is a fire hazard – a catastrophe waiting to happen. Can we just burn everything before a dangerous fire breaks out?”

Question #2:

I receive the following question from Cheryl:

“Rabbi, this has got to be the most interesting e-mail question you receive today. I am on a cruise in the Mediterranean, courtesy of, and with, my not-yet-observant parents, and today I spent the day looking at Jewish sites and other tourist attractions at our port-of-call. At one of the places, an elderly gentile lady gave me a large bag of old, tattered siddurim – no value. I have no idea what to do with them, and they are with me now in my cabin on the ship. May I bury them at sea?”

Response:

Answering the above questions provides an excellent opportunity to understand the topic called either genizah or sheimos. The particular emphasis in this article will be: what is the proper way to dispose of worn-out seforim?

Should it be called sheimos or genizah?

Which is the “correct” term? The word used in Modern Hebrew for a religious item whose discarding must be handled in a special way is genizah, which literally means that they must be hidden. Indeed, this is the term used by the Gemara for the process of disposing of these items, and it is easy to understand how the term came to refer to items that require genizah, although technically genizah refers to the place where the item is placed.

The Yiddish word for these items is sheimos, whose source is the term sheimos she’einam nimchakim, meaning the names of G-d that the Torah prohibits erasing. In Parshas Re’eih, the Torah commands: Destroy all the places where the gentiles that you are driving out worshipped their gods, whether they are on high mountains, on hills, or beneath foliate trees. Raze their altars, smash their pillars, burn their worshipped trees, and demolish the images of their gods. Obliterate the names (of their deities) from that place (Devarim 12:2-4).

The Torah then closes this passage: Do not do this to Hashem your G-d!

When the Torah states: Obliterate the names from that place. Do not do this to Hashem your G-d, it is prohibiting obliterating Hashem’s Name (Shabbos 120b; Rambam, Hilchos Yesodei HaTorah 6:1). The Gemara (Shavuos 35a) calls the names of Hashem that we may not erase sheimos she’einam nimchakim, which later became the origin of the term sheimos as a generic term to describe religious items whose discarding must be handled in a special way. Thus, either word, genizah or sheimos, may be used.

That which we call Hashem

Although there are many expressions, such as the All-merciful One and the Creator, which refer to Hashem, halachah recognizes a major distinction between erasing the actual holy names of Hashem, and between erasing terms that describe Hashem, but are not actual names. Erasing the actual “names” of Hashem, the sheimos she’einam nimchakim, violates a lo saaseh of the Torah, one of the 613 mitzvos, and qualifies as a prohibition as serious as desecrating Yom Tov or eating non-kosher (see Makkos 22a). The names of Hashem, of which there are about ten, include, among others, Elokim, Elokeinu, Keil, Shakai, Tzevakos, Eloak, and, of course, the names I will call havayah and adnus. (Following the usual practice, I have substituted the “k” sound somewhere in the above names, so that readers do not err and recite these holy names in vain.) Erasing any of these names is prohibited min haTorah.

Erasing attributes

On the other hand, expressions that describe attributes of Hashem — such as Rachum, All-merciful one; Chanun, He Who bestows kindness — may be erased, even when they refer to Hashem (Shavuos 35a; Rambam, Hilchos Yesodei HaTorah, 6:5). The Torah’s prohibition, do not do this to Hashem your G-d, applies only to a name of Hashem, not to an attribute that describes Hashem.

Similarly, there is no prohibition to erase His names written in other languages, such as G-d, even when spelled with the “o” in the middle (Shach, Yoreh Deah 179:11), although one must exercise care that these names do not become treated disrespectfully (Urim, 27:2, quoted also by Nesivos HaMishpat and Aruch HaShulchan ad loc.). The reason we are accustomed to spelling the name G-d, rather than with the added “o,” is because of concern that the paper it is written on might end up in the garbage or treated in some other disrespectful way.

Does the prohibition include commentaries, Gemaros, et cetera?

Although the Torah violation, do not do this to Hashem your G-d, applies only to actual names of Hashem, Chazal prohibited destroying other holy writings, including commentaries, works of Mishnah, Gemara or halachah, and other Torah works (see Rambam, Hilchos Yesodei HaTorah 6:8; Shu’t Tashbeitz 1:2).

What happens when they wear out?

Granted that the Torah prohibited destroying works that include Hashem’s Name, eventually a sefer Torah becomes worn out and unusable. What does one do with it, then, if it is prohibited to destroy it? The precise details of how to dispose of these items is exactly the topic for today’s article.

Buried in earthenware

The Gemara teaches that worn out sifrei Torah should be placed in earthenware vessels and then buried next to a talmid chacham, or, minimally, next to someone who learned halachah, meaning someone who at least studied Mishnayos (Megillah 26b). Placing them inside these vessels forestalls the decomposition of the sifrei Torah for a very long time (Ran), and placing them together with someone who studied Torah is a more respectful way of treating sifrei Torah that can no longer be used. It is very unfortunate that Hashem’s Name becomes obliterated, even in an indirect way, and we must delay the decomposition for as long as possible.

Genizah of printed sefarim

From after the time of the Gemara until the invention of the printing press in the 1400’s, we find little discussion about how to dispose of holy works. Since everything was handwritten and therefore scarce and very expensive, we can presume that there were not a lot of worn out sifrei kodesh, and there was no difficulty in following the Gemara’s description for their retirement. However, after the invention of the printing press, the sheer volume of printed material increased geometrically, and we find halachic discussion concerning whether wornout printed sefarim must be disposed of in the same manner as the Gemara describes for sifrei Torah.

The teshuvah of the Be’er Sheva

The earliest responsum I have seen on the subject is printed in the sefer Be’er Sheva, authored by one of the great Torah leaders of the early seventeenth century, Rabbi Yissachar Dov Eilenburg. He was a talmid of the Levush, and his sefer includes a haskamah from the Maharal of Prague! The Be’er Sheva reports that in his day, it was not uncommon for people to burn the worn-out printed editions of sifrei kodesh. Those who burned the sifrei kodesh claimed that this was more respectful than burying them, because burial often resulted in the sifrei kodesh being unearthed and therefore becoming treated disrespectfully.

The Be’er Sheva takes strong issue with this approach, noting that it is prohibited to destroy any type of kisvei hakodesh, and that burning them certainly violates halachah. The claim that burying the sefarim leads to their desecration is unfounded, he states, because the desecration is a result of not burying the genizah correctly. As we mentioned above, the Gemara describes burying in earthenware vessels. If, indeed, all genizah were to be buried this way, argues the Be’er Sheva, then the kisvei hakodesh would never be strewn about after their burial. He concludes that worn-out, printed Torah material must be buried in earthenware vessels, just as one is required to bury sifrei Torah this way. This responsum of the Be’er Sheva is subsequently cited authoritatively by the Magen Avraham (154:9).

Not enough earthenware to go around

Notwithstanding the rulings of the Be’er Sheva and the Magen Avraham prohibiting the burning of wornout kisvei hakodesh, we find the issue of burning sheimos resurfacing a century later. It appears that burying the massive amounts of sheimos in earthenware vessels was not practical, presumably because appropriate earthenware vessels were not easily available in the quantities required. Since no other practical solution was acceptable to the Be’er Sheva and the Magen Avraham, accumulations of sheimos were doing just that — accumulating. Thus we read:

The shul’s sheimos collection is a fire hazard – a catastrophe waiting to happen. Can we just burn everything, before a dangerous fire breaks out?”

This is the exact question asked three hundred years ago by members of the Jewish community in Metz, Alsace-Lorraine, from their rav, Rav Yaakov Reischer, one of the great halachic authorities of his era, famed for his many classic Torah works, including Minchas Yaakov (on the laws of kashrus), Chok Yaakov (on Hilchos Pesach), Toras Hashelamim (on Hilchos Niddah), Iyun Yaakov (on Agadah of Shas), and his responsa, Shevus Yaakov.

In a responsum published in Shevus Yaakov, Rav Reischer reports that previous attempts to bury the amassed sheimos had resulted in gentiles unearthing the kisvei hakodesh and using them in a highly degrading way. For lack of any solution, the sheimos were accumulating and indeed were a fire hazard. Because of the life-threatening emergency that now resulted, the Shevus Yaakov ruled that it was preferable to burn the sheimos, which he felt was the most viable resolution of the problem, since burial in earthenware vessels was no longer feasible.

Corresponding mechutanim

In Nissan 5483 (1723), Rav Reischer sent his teshuvah permitting, under these circumstances, the burning of genizah, to his mechutan, Rav Yechezkel Katzenellenbogen, the rav of Hamburg, for review, presumably hoping that Rav Katzenellenbogen would agree. The correspondence between these gedolei Torah was subsequently published in two different places – in Rav Reischer’s Shu’t Shevus Yaakov, as Yoreh Deah, Volume 1, #10-12, and in Rav Katzenellenbogen’s Shu’t Keneses Yechezkel as responsum #37. The two versions of the correspondence are not absolutely identical, but comparing the two versions broadens one’s understanding of the dispute. In general, the Keneses Yechezkel account is somewhat truncated in places, but includes the dates of the letters. Apparently, when Rav Katzenellenbogen decided to print this correspondence, he abbreviated his own letters, although he published his mechutan’s letters in full.

A more important fact is that the account published in Keneses Yechezkel includes a final letter from Rav Katzenellenbogen that does not appear in Shevus Yaakov.

Family feud

Although both gedolim correspond to one another with great respect, they dispute strongly regarding what one should do with the accumulated sheimos material when burial in earthenware vessels is not a practical solution. In his response dated 17 Kislev, the Keneses Yechezkel rejects fully his mechutan’s proposal that the circumstances permit burning the sheimos, but instead rules that one should construct wooden boxes around the genizah, find an abandoned lot, and bury the wooden-entombed sheimos with three tefachim (about 9-11 inches) of earth above them.

The second volley

On the 23 of Teiveis, the Shevus Yaakov penned his retort to his mechutan, rejecting the idea that wooden boxes are as good as earthenware, and insisting that if all kisvei hakodesh must be buried in earthenware, burying in wood, which decays much more quickly, will not suffice. He contends that burying in wood is the equivalent of burying directly in the earth, which he prohibits as a tremendous bizayon to the kisvei hakodesh. He feels that burying in earth, either with or without a wooden protection, is a far greater bizayon to the kisvei hakodesh than burning them. Thus, unswayed by his mechutan’s rejection of his proposal, he remains with his original suggestion – that since burying all the genizah in earthenware containers is not practical, and burying them in wooden containers is not acceptable, the remaining option is to burn the sheimos.

The response from the Keneses Yechezkel was not long in coming. On the 17th of Shvat, the Keneses Yechezkel penned his retort, again reiterating his position that it is absolutely forbidden to burn sheimos, and that it is perfectly acceptable, and therefore required, to bury them in wooden boxes. (This last letter is the part of the correspondence that does not appear in Shu’t Shevus Yaakov, but only in Keneses Yechezkel.)

Packing the printed material

It is noteworthy that both of these authorities rule that printed sefarim must be packed properly before burial, which was also the position of the Be’er Sheva and the Magen Avraham that I quoted above. On the other hand, the Pri Megadim (commenting on the above-quoted Magen Avraham), who was born shortly before the passing of the Keneses Yechezkel and the Shevus Yaakov, notes that the custom is to bury worn-out printed sefarim without placing them inside vessels, and to require burial in earthenware vessels only when burying worn-out, hand-written nevi’im and kesuvim that are written on parchment. (The nevi’im he is describing are used contemporarily by many shullen for reading the haftaros.) The custom mentioned by the Pri Megadim disputes the above quoted authorities, the Be’er Sheva, the Magen Avraham, the Keneses Yechezkel, and the Shevus Yaakov, all of whom held that printed sefarim must be packed in earthenware or with other protective means before burial.

What is the accepted halachic practice?

The prevalent accepted practice follows the Pri Megadim’s observation — that is, although we insist that worn-out printed sefarim must be buried, they are not packed in either earthenware or even wood boxes before burial. The Mishnah Berurah (154:22, 24), when discussing this issue, quotes only the Pri Megadim; he does not even mention the disputing earlier opinions.

How can we permit this?

Granted that the minhag follows the Pri Megadim, but what is the halachic basis to permit this? Neither the Pri Megadim nor the Mishnah Berurah explains the rationale to permit burying these items, without first packing them appropriately. However, an authority contemporary to the Pri Megadim, the Zera Emes (Volume II #133), does discuss this issue.

The Zera Emes was asked the same question that was asked of the Be’er Sheva, the Keneses Yechezkel and the Shevus Yaakov — whether there is any basis to permit the burning of printed sheimos. In response, the Zera Emes first cites many early authorities who held that all printed sefarim require burial in earthenware vessels. He indeed concludes that all genizah items require burial. He then analyzes whether all genizah items require to first be packed in earthenware vessels. He notes that the Gemara, itself, implies that there are different levels of kedushah when burying holy items. Although the Gemara mentions several items that require genizah, such as the coverings of the sefer Torah (often called mantelach), mezuzos, tefillin, tefillin bags and straps, it requires only that these items have genizah and does not mention that they be first placed in earthenware. The requirements of placing the genizah item in an earthenware vessel and burying it near a talmid chacham are mentioned only regarding a sefer Torah. Other holy writings do not require this, and it is sufficient to provide them with what the Zera Emes calls “a minimal burial” — meaning burial in earth. Burial is a respectful way to allow for the decay of holy works, both because burial is halachically a respectful way of disposal, and because the deterioration is caused indirectly.

The Zera Emes adds one more requirement – that the sheimos must be placed into some type of bag or covering before it is buried. This covering is necessary, in his opinion, because placing directly into the ground is not considered a respectful way to treat kisvei hakodesh. We should note that, according to the contemporary sefer Ginzei HaKodesh, Rav Elyashiv held that, in a situation where it is difficult to wrap the genizah, one may bury it without wrapping. This means that, in his opinion, placing kisvei hakodesh directly in the ground is not disrespectful.

Burial at sea

At this point, we can answer Cheryl’s question:

I am on a cruise in the Mediterranean. At one port-of-call, a gentile lady gave me a large bag of old, tattered siddurim, which are now in my cabin on the ship. May I bury them at sea?

As you can by now imagine, I answered Cheryl that she is not permitted to bury the genizah at sea. According to all opinions quoted above, disposing worn-out kisvei hakodesh in water is considered destroying them directly. According to the Be’er Sheva and the Keneses Yechezkel, all kisvei hakodesh require burial in the earth, and in earthenware. According to the Pri Megadim and the Zera Emes, although burial is permitted in earth, this is only in earth, where the deterioration takes time, but “burial at sea” is a bizayon to the holy works. Even the Shevus Yaakov, who permitted burning kisvei hakodesh when one cannot bury them in earthenware vessels, expressly forbade burial in earth without packing them first, because the moisture of the earth is considered directly destroying them and forbidden, and certainly, disposal directly in water is forbidden.

Conclusion — contemporary practice

Common practice of those who bury genizah today is to pack all handwritten kisvei hakodesh, including sifrei Torah, mezuzos, and tefillin parshiyos, in earthenware or glass containers before burial; whereas worn-out, printed sefarim are simply placed in bags or cardboard boxes and buried. Thus, it appears that although we are following the distinction between sifrei Torah and other holy writings as explained by the Zera Emes, contemporary practice is to be slightly stricter than his ruling regarding how we wrap mezuzos and tefillin parshiyos prior to burial.

Thousands of pages of Torah rattle off presses and home and business printers every day, spreading Torah to every corner of the globe. By disposing of this material appropriately, we help ensure that this glory of Torah does not lead to its desecration.

 

 

How Many Should be Saying Kaddish?

American Friends of Nimla Tal Inc. is a tzedakah that distributes all of the money received to situations here in Eretz Yisroel of which I have personal knowledge. Usually, the money is used to pay for therapy. In addition, a special feature, good through the month of December, is that PayPal adds 1% to the amount donated. So, click on www.paypal.me/rabbikaganoff to donate, and you will be given the option to enter your amount. If you enter $100, for example, you get a US IRS tax deduction of $100, and $101 goes to help the poor in Israel. No money goes to pay salaries or other no expenses.

Since, in Parshas Vayechi, we read of Yaakov Avinu’s last instructions to his children, this is an appropriate week to discuss some of the laws of kaddish.

How Many Should be Saying Kaddish?

Question: Is it better that each mourner recite only one kaddish, or that all the mourners recite all the kaddeishim?

Answer: Most people are under the impression that whether the “mourner’s kaddish” (kaddish yasom) is recited by only one person or whether many recite it simultaneously is a dispute between the practices of Germany and those of Eastern Europe. However, we will soon see that this simplification is inaccurate. There were many communities in Eastern Europe where kaddish was said by only one person at a time, and this was the universal Ashkenazic practice until about 250 years ago.

The custom that many people recite the mourner’s kaddish simultaneously was accepted and standard Sefardic practice (meaning the Jews of North Africa and the Middle East), going back at least to the early 18th century (see Siddur Yaavetz, comments after Aleinu), although when this custom was instituted is uncertain. But before we explore the issue of whether more than one person may say kaddish simultaneously, let us first examine the origins of reciting the mourner’s kaddish altogether.

Origins of kaddish

Although the Gemara refers to kaddish in numerous places (Brachos 3a, 57a; Shabbos 119b; Sukkah 39a; Sotah 49a), it never mentions what we call kaddish yasom, the kaddish recited by mourners, nor does it recommend or even suggest, anywhere, that a mourner lead the services. The Gemara, also, makes no mention of when kaddish is recited, with the exception of a very cryptic reference to kaddish recited after studying aggadah (see Sotah 49a). A different early source, Masechta Sofrim, mentions recital of kaddish before borchu (10:7) and after musaf (19:12). The fact that the Gemara says nothing about a mourner reciting kaddish or leading services is especially unusual, since the most common source for these practices is an event that predates the Gemara. The Or Zarua, a rishon, records the following story:

Rabbi Akiva once saw a man covered head to toe with soot, carrying on his head the load that one would expect ten men to carry, and running like a horse. Rabbi Akiva stopped the man, and asked him: “Why are you working so hard? If you are a slave and your master works you this hard, I’ll redeem you. If you are so poor that you need to work this hard to support your family, I’ll find you better employment.”

The man replied, “Please do not detain me, lest those appointed over me get angry at me.”

Rabbi Akiva asked him: “Who are you, and what is your story?”

The man answered: “I died, and everyday they send me like this to chop and carry these amounts of wood. When I am finished, they burn me with the wood that I have gathered.”

Rabbi Akiva asked him what his profession was when he was alive, to which he answered that he had been a tax collector (which, in their day, meant someone who purchased from the government the contract to collect taxes) who favored the rich by overtaxing the poor, which the Or Zarua calls “killing the poor.”

Rabbi Akiva: “Have you heard from your overseers whether there is any way to release you from your judgment?”

The man responded: “Please do not detain me, lest my overseers become angry with me. I have heard that there is no solution for me, except for one thing that I cannot do. I was told that if I have a son who would lead the tzibur in the recital of borchu or would recite kaddish so that the tzibur would answer yehei shemei rabba mevorach…, they would release me immediately from this suffering. However, I did not leave any sons, but a pregnant wife, and I have no idea if she gave birth to a male child, and if she did, whether anyone is concerned about teaching him, since I have not a friend left in the world.”

At that moment, Rabbi Akiva accepted upon himself to find whether a son existed and, if indeed he did, to teach him Torah until he could fulfill what was required to save his father. Rabbi Akiva asked the man for his name, his wife’s name, and the name of the town where he had lived. “My name is Akiva, my wife’s name is Shoshniva and I come from Ludkia.”

Rabbi Akiva traveled to Ludkia and asked people if they knew of a former resident, Akiva, the husband of Shoshniva, to which he received the following answer: “Let the bones of that scoundrel be ground to pulp.” When Rabbi Akiva asked about Shoshniva, he was answered: “May any memory of her be erased from the world.” He then inquired about their child, and was answered: “He is uncircumcised — for we were not interested in involving ourselves even to provide him with a bris milah!” Rabbi Akiva immediately began his search for the son, whom he located — it turned out that he was already a young adult. Rabbi Akiva performed a bris milah on him and attempted to teach him Torah, but was unable to do so. For forty days, Rabbi Akiva fasted, praying that the child be able to study Torah, at which time a heavenly voice announced: “Rabbi Akiva, now go and teach him Torah!”

Rabbi Akiva taught him Torah, shma, shmoneh esrei, birchas hamazon, and then brought him to shul in order for him to lead the tzibur by reciting kaddish and borchu, to which the tzibur responded, yehei shemei rabba mevorach le’olam ule’olmei olemaya and “Baruch Hashem hamevorach le’olam va’ed.

At that moment, Akiva, the husband of Shoshniva, was released from his punishment. This Akiva immediately came to Rabbi Akiva in a dream and told him: “May it be Hashem’s will that you eventually reach your eternal rest in Gan Eden — for you have saved me from Gehennom.” (This story is also found, with some variation, in the second chapter of Masechta Kallah Rabasi.)

Other versions

When a different rishon, the Rivash, was asked about this story, he reported that it is not found in the Gemara, but perhaps its origin is in Midrash Rabbah or Midrash Tanchuma. He then quotes a story from the Orchos Chayim similar to that quoted by Or Zarua. In conclusion, the Orchos Chayim emphasizes that, for the twelve months of mourning, a mourner should recite the last kaddish of the davening and maftir on Shabbos and Yom Tov, and lead the services for ma’ariv every motza’ei Shabbos (Shu’t Harivash #115).

A similar story is recorded in an earlier midrashic source, the Tanna Devei Eliyahu, where the protagonist is not Rabbi Akiva, but his rebbe’s rebbe, Rabbi Yochanan ben Zakai (see Rambam, Peirush Hamishnayos, end of the fifth chapter of Sotah). In this version, the man was punished until his son turned five and the son was educated to the point that he could answer borchu in shul (Eliyahu Zuta, Chapter 17). No mention is made of the son reciting kaddish. However, the halachic sources all quote the version of the Or Zarua, in which the protagonist of the story is Rabbi Akiva.

Merits for the deceased

This story serves as the basis for the practice that a mourner lead the services and recite kaddish. Relatively little of this topic is discussed until the time of the Maharil, who was asked the following question:

“Should someone who is uncertain whether his father or mother is still alive recite kaddish?”

To this question, frequent in earlier times when cell phones were not so commonplace, the Maharil replied that he is not required to recite kaddish and he should assume that the person is still alive (Mishnah, Gittin 3:3). Once the parent reaches the age of eighty, one should view it as uncertain whether the parent is still alive. Upon this basis, I am aware of a gadol be’yisrael who had escaped Hitler’s Europe before the war, who began to recite kaddish for his parents once the Nazis invaded the part of Russia where his parents were living.

The Maharil continues that if there are two people in shul, one who is reciting kaddish for a deceased parent, whereas the other is uncertain whether his parents are still alive, that the second person should not recite kaddish. This is because of the halachic principle of ein safek motzi midei vadai, someone who has a questionable claim does not preempt someone who has a definite claim or right – in this instance, the person whose parents might still be alive should not recite kaddish, rather than someone whose parents are known to be deceased. We see from this ruling that the Maharil assumes that kaddish is recited by only one person at a time.

The Maharil explains that, for this reason, he himself did not say kaddish when he was uncertain whether his parents were still alive. He then explains that someone who is not sure whether his parents are still alive and is capable to lead the services properly should lead the services in honor of his parents (Teshuvos Maharil #36).

Conclusions based on the Maharil

We see from the Maharil’s discussion that:

Only one person recites kaddish at a time.

The reason that someone whose parents are alive should not recite mourner’s kaddish is because he is taking the kaddish away from people who are mourners.

If there is no mourner present to lead the services, then the person uncertain if he is a mourner should lead services, if he can do the job properly.

Obligatory versus voluntary kaddish

The Maharil (Shu’t Maharil Hachadoshos #28) was also asked how a minor can recite kaddish if it is a requirement, as only one obligated to fulfill a mitzvah may fulfill a mitzvah on behalf of others. The Maharil answered that the kaddeishim that are recited by the shaliach tzibur as part of davening cannot be recited by minors. These kaddeishim are obligatory and therefore must be recited by an adult, who thereby fulfills the mitzvah on behalf of the entire community. However, non-obligatory kaddeishim, such as kaddish derabbanan and the kaddeishim recited at the end of davening, may be recited by minors. As a curious aside, the Mesechta Sofrim (10:7) explains that these kaddeishim were established primarily as make-up for people who arrived late and missed the kaddeishim that are required.

It is interesting to note that, already in the time of the Maharil, people assumed that the mourner’s kaddeishim are more important than the kaddeishim recited by the chazzan. The Maharil points out that this is incorrect, since the kaddeishim recited by the chazzan are required, and it is greater to perform a mitzvah that one is required to observe than one that is not required (gadol ha’metzuveh ve’oseh mimi she’eino metzuveh ve’oseh). The main merit that one performs for his deceased parent is to recite the kaddeishim that are said by the chazzan as part of davening.

Since minors cannot serve as chazzan, the Maharil considers it a great merit that they receive maftir, which a minor may receive, since they thereby recite borchu in front of the tzibur.

Mourner’s kaddish on weekdays

It appears from the Maharil’s responsum that, prior to his era, kaddish yasom was recited only on Shabbos and Yom Tov. In his day, a new custom had just begun in some communities to recite mourner’s kaddish on weekdays. The reason for the new custom was to enable minors to recite kaddish on a daily basis and to accommodate adults whom the tzibur did not want to lead the services.

Which kaddeishim should be said?

The Maharil writes that although these kaddeishim are not required, but only customary, they should still be recited after a shiur is completed, after bameh madlikin is recited Friday evening, and after pesukim are recited, such as when we recite kaddish after aleinu and the shir shel yom. He rules that someone whose parents are still alive may recite these kaddeishim. However, if his parents do not want him to recite these kaddeishim, he should not.

One at a time

At this point, let us address our opening question: Is it better that each mourner recite only one kaddish, or that all the mourners recite all the kaddeishim?

It appears that, initially, whoever wanted to recite what we call today the mourner’s kaddeishim would do so. Knowing the story of Rabbi Akiva, it became an element of competition, different people trying to chap the mitzvah, which sometimes engendered machlokes and chillul Hashem. To resolve this problem, two approaches developed for dealing with the issue. Among Sefardim, the accepted approach was that anyone who wanted to say kaddish did so, and everyone recited kaddish in unison. This practice is noted and praised by Rav Yaakov Emden in his commentary on the siddur (at the end of Aleinu). Among the Ashkenazim, the approach used was to establish rules of prioritization, whereby one person at a time recited kaddish.

These lists of prioritization are discussed and amplified by many later Ashkenazi authorities, thus implying that, in the Ashkenazi world, the early custom was that only one person recited kaddish at a time. We do not know exactly when the custom began to change, but by the late eighteenth/early nineteenth century, several major Ashkenazi authorities, among them the Chayei Odom (30:7) and the Chasam Sofer (Shu’t Orach Chayim #159; Yoreh Deah #345), discuss a practice whereby kaddish was recited by more than one person simultaneously. About this time, we find another custom in some communities, in which the mourner’s kaddish was said by only one person, but where everyone who chose could join in the recital of a kaddish derabbanan that was recited at the end of the daily morning prayer (see Shu’t Binyan Tziyon #1:122), presumably after the rav taught a shiur in halachah.

Merged community

With this background, we can understand the following mid-nineteenth century responsum. A community had two shullen and several shteiblach. The main shul was in serious disrepair, so they made an agreement to close all the smaller shullen in order to pool resources and invest in one large, beautiful new shul and have no other minyanim. Included in this decision was a new takkanah that all mourners would now recite all the kaddeishim in unison. Subsequently, some individuals claimed that the community should follow the practice of the Rema and the Magen Avraham of prioritizing the recital of kaddish and have one person say it at a time. The community leaders retorted that this would create machlokes, since there was only one shul and many people would like to say more kaddeishim than they can under the proposed system. Apparently, the dispute even involved some fisticuffs. The community sent the shaylah to Rav Ber Oppenheim, the rav and av beis din of Eibenschutz. He felt that the community practice of having all the mourners recite kaddish together should be maintained, but first wrote an extensive letter clarifying his position, which he sent to Rav Yaakov Ettlinger, the premier halachic authority of central Europe at the time. I will refer to Rav Ettlinger by the name he is usually called in yeshiva circles, the Aruch Laneir, the name of his most famous work, the multi-volumed Aruch Laneir commentary on much of Shas. The Aruch Laneir’s reply was subsequently published in his work of responsa called Shu’t Binyan Tziyon.

The Aruch Laneir contended that one should not change the established minhag of Germany and Poland, in practice for more than three hundred years, in which only one person recites kaddish at a time. He further notes that although the Yaavetz had praised the practice that several people recite kaddish in unison, the Yaavetz himself had lived in Altoona, Germany, where the accepted practice was that only one person said kaddish at a time. (The Aruch Laneir notes that he himself was the current rav of Altoona and had been so already for several decades.)

Furthermore, the Aruch Laneir contends that one cannot compare Ashkenazic to Sefardic observance for a practical reason. The Sefardim are accustomed to praying in unison, and therefore, when they say kaddish, everyone exhibits great care to synchronize its recital. When Ashkenazim attempt to recite kaddish in unison, no one hears the kaddeishim. The Aruch Laneir notes that when the kaddish derabbanan is recited by all mourners, the result is a cacophony. He writes that he wishes he could abolish this custom, since, as a result, no one hears or responds appropriately to kaddish.

In conclusion, the Aruch Laneir is adamant that where the custom is that one person at a time recite kaddish, one may not change the practice. On the other hand, we have seen that other authorities cite a custom whereby all the mourners recite kaddish in unison.

Conclusion: How does kaddish work?

The Gemara (Yoma 86a) records that any sin that a person commits in this world, no matter how grievous, will be atoned if the person does teshuvah. This does not mean that the teshuvah accomplishes atonement without any suffering. Some sins are so serious that a person must undergo suffering in this world in addition to performing teshuvah, before he is forgiven.

The greatest sin a person can be guilty of is chillul Hashem. Only teshuvah, suffering, and the individual’s eventual demise will be sufficient to atone for this transgression. Thus, a person’s death may result from his having caused a chillul Hashem.

The Maharal of Prague had a brother, Rav Chayim, who authored a work entitled Sefer Hachayim, in which he writes that most people die because at some point in their life they made a chillul Hashem. The reason a mourner recites kaddish is to use the parent’s death as a reason to create kiddush Hashem – by reciting kaddish – thus, atoning for the original chillul Hashem (Sefer Hachayim, end of chapter 8). May we all merit to create kiddush Hashem in our lives.

The Halachic Ramifications of Wills

Special end of Chanukah special—and chance to give Chanukah gelt to my favorite tzedakah.

Paypal has a new useful feature that you can use to donate money to American Friends of Nimla Tal. This tzedakah distributes all of the money received to situations here in Eretz Yisroel of which I have personal knowledge. Usually, the money is used to pay for therapy. In addition, a special feature, good through the month of December, is that PayPal adds 1% to the amount donated. So, click on www.paypal.me/rabbikaganoff to donate, and you will be given the option to enter your amount. If you enter $100, for example, you  get a US IRS tax deduction of $100, and $101 goes to help the poor in Israel. No money goes to pay salaries or other no expenses.

***

Before he embarked on the difficult trip to Egypt at the age of 130 years, no doubt that our forefather Yaakov made sure all his matters were in order. Thus, it is time to study:

The Halachic Ramifications of Wills

Should an observant Jew have a will drafted? What happens if the inheritance dictated by halacha is different from that dictated by civil law? If he already has a will, how can he arrange it so that it can be consistent with halacha? May one distribute one’s estate differently from what the Torah commands? In this article, we hope to clarify these shaylos that affect every one of us.

SHOULD A JEW WRITE A WILL?

The answer to this question depends on what would happen if one leaves no legally binding will. Who will become the legal guardians of one’s minor children? Does one want one’s property distributed according to the civil law applicable where one lives? The truth is that allowing one’s property to be distributed on the basis of civil law will almost always result in someone receiving money that is not halachically his or hers! Thus, by not writing a halachically acceptable will, one may indirectly cause someone to receive stolen property!

The following shaylah that I was asked recently illustrates this problem:

Reuven Stern, who had sons and daughters, did not leave a will, and his property was divided up according to the “law of the land”, without any concern about halacha. One of his daughters asked me the following: Is she allowed to keep the money that she has received? She knows that her father intended to divide his property equally among his children; however, he had never drafted a will.

I told her that she is obligated to tell her brothers that her inheritance money is not halachically hers. If they wish, they can allow her to keep the money, but if she did not tell them, she would violate the Torah prohibition of gezeilah, stealing (MiDor L’Dor pg. 2).

DON’T WE PASKEN THAT CIVIL LAW DETERMINES THE HALACHA IN SUCH CASES BECAUSE OF DINA DIMALCHUSA DINA?

This is an incorrect understanding of dina dimalchusa dina, that the law of the government is binding in halacha. Dina dimalchusa dina requires us to obey rules of the government, such as paying taxes and obeying traffic and safety laws, and prohibits us from smuggling and counterfeiting. Dina dimalchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews. According to all accepted opinions, dina dimalchusa dina does not apply to the laws of inheritance (Shu”t Rashba, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26, and by Shach, Choshen Mishpat 73:39).

IS A TYPICAL WILL VALID IN HALACHA?

Shimon had his lawyer draft a will. He instructed his lawyer to have certain bequests made to specific tzedakos, and to divide the rest of his estate equally among all his sons and daughters. Is this will halachically valid? If it is not, what are the halachic ramifications?

According to civil law, a person has the right to choose one’s heirs and thereby to choose to whom one distributes one’s earthly wealth, after one passes on. However, according to the Torah, a person does not have the ability to choose one’s heirs, nor can one give away property after one’s death. When a man dies, the Torah has a formula for distributing his assets.

If a person cannot designate his heirs, does this mean that it is impossible for one to determine who owns one’s assets after one’s passing? No. In this article, we will present different methods whereby one can make a civil will enforceable according to halacha. However, it is important to ask a shaylah to make sure that one’s will is indeed valid, according to halacha.

Here is a case of someone who drafted a will without first asking a shaylah. Mrs. Goldstein promised her nephew Yitzchak that she would support him in kollel. She told Yitzchak that she would make sure that he was provided for, if anything happened to her. Her own children were financially well-established but, unfortunately, non-observant. Any money she left them would be insignificant to them in terms of their own means. By supporting her nephew Yitzchak’s learning, Mrs. Goldstein felt that she would be ensured of a good reward in Olam HaEmes. However, when she had a will drafted, she failed to make any provisions for it to be halachically binding.

After Mrs. Goldstein’s passing, Yitzchak researched the halachos about wills and realized that the property left to him might not be his, from a halachic standpoint. According to many poskim, taking this money without the consent of his non-observant cousins would be stealing, so Yitzchak decided to take no money without his cousins’ willing consent (cf., however, Shu”t Igros Moshe, Even HaEzer 1:104). This consent was not forthcoming, and consequently, Yitzchak was unable to benefit from his aunt’s estate.

Unfortunately, even frum attorneys are often unaware of the halachic ramifications of drafting a will. Mrs. Goldstein’s estate could have been divided according to her wishes, if she or her attorney had only consulted a rav.

ONE METHOD OF MAKING THE WILL EFFECTIVE

One method of making a civil will halachically effective is to have ownership of the property transferred while the testator (the person making the will) is still alive. Thus, there is no need for the beneficiary of the will, called the legatee, to be a halachic heir since he/she is receiving ownership of the property as a gift, not as an inheritance.

However, most people do not want to give away all their properties until their last moment, since they may still have a need for them. Therefore, the date that the gift takes effect is delayed until immediately before the testator passes away. Thus, the testator may still use all his assets, without any hindrance, until the point at which he no longer needs them.

Based on the above, a will can be rendered halachically effective by making a kinyan that transfers assets to the legatee. There are many acts of kinyan recognized by halacha that transfer ownership. For the purposes at hand, the simplest kinyan is what is usually called kinyan sudar, the same type of kinyan that is used to authorize one’s rav to sell chametz. The testator lifts up a pen or any other utensil owned by someone else which thereby transfers the ownership of the estate to the beneficiaries of the will.

Although the act of kinyan is performed at the time the will is signed and witnessed, its effective date is delayed until shortly before the testator’s death. At that moment, it takes effect automatically, because of the kinyan that was performed previously. Thus the legatee will not own the legacy (the property given away in the will) until a few moments before the testator passes away.

Making the will halachically effective by using a kinyan does not require making any change in the will itself. After the will is drafted, one renders it halachically effective by making the kinyan described above.

Although technically not required, it is advisable to have the kinyan witnessed by two adult males, who sign a statement that they observed the kinyan. This statement can then be filed together with the will. Otherwise, halachic heirs can protest that no kinyan was made and refuse to hand over properties.

Although the above method is halachically binding, it has several drawbacks.

According to halacha, one can transfer property only if it already exists and is already owned by the person transferring it. Furthermore, one can only transfer property to someone who is already born. Thus the kinyan will transfer only property that the testator owns at the time that it is made, and will be effective only for legatees who are already born.

Since people generally purchase new properties and investments, earn more money, and include as yet unborn children and grandchildren in their wills, the kinyan should be periodically renewed. Although this is possible, most people generally forget to take care of it.

A more serious problem is that many of the items included in most people’s portfolios, such as bonds, bank deposits, and cash, are neither transacted according to halacha via kinyan sudar, nor through most other standard kinyan methods (Choshen Mishpat 203:1; 66:1). Thus, although the kinyan will work to transfer to the legatee real estate, ownership in businesses, chattel, and stocks, a significant percentage of the assets may not have been transacted in a binding way. As a result, the halachic heir could claim that the legatee did not acquire these items, and therefore that they are not included in the will according to halacha.

WHY ISN’T THE WILL VALID IN HALACHA BECAUSE OF THE MITZVAH TO FULFILL THE WISHES OF THE DECEASED?

It is true that there is a halachic principle called mitzvah l’kayeim divrei hameis, which literally means that it is a mitzvah to fulfill the directives of a deceased person. Thus, it would seem that the heirs are obligated to follow the directives of the will and distribute the property according to the instructions of the deceased.

However, the principle of mitzvah l’kayeim divrei hameis is extremely limited in its application, as we will explain. Relying on mitzvah l’kayeim divrei hameis does not guarantee the fulfillment of the terms of the will, for several reasons. Firstly, the Shulchan Aruch rules that mitzvah l’kayeim divrei hameis applies only when the property is handed over to a third party for the purpose of fulfilling the testator’s instructions at the time the instructions are received (Choshen Mishpat 252:2).

If this condition is not fulfilled, the heirs are not obligated to carry out directives of the will. Obviously, the implementation of these conditions is impractical in the vast majority of wills. Furthermore, even if every condition is fulfilled, if the heirs sell the property before the legatee receives it, the legatee will have no halachic recourse to claim his property (Rama ad loc.). In essence, mitzvah l’kayeim divrei hameis is a mitzvah that the heirs should perform, but it is not binding on them.

Furthermore, according to many poskim, mitzvah l’kayeim divrei hameis applies only if the instructions are given directly to the halachic heirs, which is not typical in most wills (Shach, Choshen Mishpat 252:7). Thus, mitzvah l’kayeim divrei hameis is not an effective means of forcing the halachic heirs to fulfill one’s will.

CAN’T THE TESTATOR TRANSFER THE PROPERTY THROUGH THE LAW OF METZAVE MACHMAS MISAH?

The words metzave machmas misah are the approximate equivalent of the English term “last will and testament,” meaning the instructions made by the testator for the distribution of his assets upon his passing. However, according to most poskim, metzave machmas misah has halachic validity only if made by a shechiv meirah, a deathly ill person (Rema, Choshen Mishpat 250:25). Thus, according to most opinions, it will have no validity in most contemporary wills that are drafted when the testator is healthy.

There is a minority opinion that metzave machmas misah takes affect even for a healthy person, provided he gives away all his property (Mordechai, Bava Basra #591). Based on this minority opinion, some poskim rule that if the legatees have already received the property, they may keep it (Gesher HaChaim 1:6, see Shu”t Maharsham 2:224). If faced with this question, one should ask his rav a shaylah.

DOES USING A TRUST OBVIATE THESE YERUSHA PROBLEMS?

I have seen poskim recommend the use of trusts to avoid some of the problems we mentioned above. However, I do not see any advantage in using a trust over simply making a kinyan. In the cases where the kinyan will not work, the trust will not work either, and the trust can create problems that the kinyan does not. Therefore, using a trust to assure that the will functions according to halacha is usually not warranted.

A MORE EFFECTIVE APPROACH – CREATING AN INDEBTEDNESS

There is a tried and true method that has been used for hundreds of years to guarantee that one’s will is upheld. The testator creates a large, theoretical indebtedness on his properties in favor of the beneficiaries of the will. This means that he creates a lien on all his property that is payable to the intended legatee, who is not a halachic heir. (In halacha, a person can create indebtedness against himself and against his property, even if there is no preexisting debt or obligation.) The debt the testator creates should be much greater than what he actually expects the legatee to receive, and may be larger than he estimates the value of his entire estate.

There is one important condition made on this debt – that it will be null and void if the heirs honor the conditions of the will. However, if the heirs refuse to honor the will, the lien becomes payable, thus depriving them of their inheritance; instead, the estate, or a significant part of it, is awarded to the legatees as payment of the debt. In reality, the indebtedness is never really used; its sole purpose is to enforce the terms of the will.

An example of how this method works will explain it better. Using our earlier examples, Reuven Stern wanted to leave property to his daughters, and Mrs. Goldstein wanted to leave property for her nephew. In both instances, the testator failed to arrange clear ownership of the legacy for the intended legatee.

What the testators could have done is to create a large, personal debt against their property to the benefit of the intended non-heir legatee. Thus, Reuven would have created a large indebtedness against his own property for the benefit of his daughters, and Mrs. Goldstein would have created one for her nephew. A condition would be placed on this debt that it is null and void if the conditions of the will are met and the heirs, in this case the sons, do not contest the will.

Both Reuven and Mrs. Goldstein would also have left a small but respectable legacy for their sons, something they should have done anyway, as will be explained later.

When the testator’s will is executed, the sons, who are the halachic heirs, have the option to ignore the terms of the will. However, by doing so, the estate now owes the full indebtedness. The result is that the sons will end up with no inheritance at all, since the debt might be greater than the entire estate. Thus, it is in the heirs’ best interest to obey the will, and at least receive the small inheritance specified for them.

Although this method may seem like a modern gimmick, it has been in use for hundreds of years. It was commonplace to write a halachic will to provide daughters with part of the inheritance together with their brothers. The father achieved this by creating a lien against his own property for an amount of money that made it worthwhile for the sons to fulfill the conditions of the will (see Rama, Choshen Mishpat 281:7).

It should be noted that because of reasons beyond the scope of this article, the indebtedness made against a wife’s properties would not be valid (see Kesubos 78b; Even HaEzer 90:9). However, the method of creating an indebtedness can still be used by placing the lien for the wife’s will against her husband’s properties. For this reason, when a couple has their wills drafted, the indebtedness for both of their wills should place the conditional lien against his estate, not hers. (This approach is suggested and described in detail by Rav Feivel Cohen in his sefer MiDor L’Dor).

IS IT PERMITTED TO DISTRIBUTE ONE’S ESTATE DIFFERENTLY FROM WHAT THE TORAH INSTRUCTS?

The Gemara tells us that Shmuel instructed his disciple, Rav Yehuda, to avoid becoming involved in situations where the Torah’s laws of inheritance would be overruled, even to transfer property from an evil son to a good son, or from a son to a daughter (Bava Basra 133b; Kesubos 53a).

Does this imply that all property should be inherited only by the halachic heirs? If this is so, why was there a widespread custom of providing daughters with an inheritance to which they are not entitled according to Torah law?

There are several approaches given to answer this question.

Some poskim rule that it is permitted to give away a large part of one’s estate, provided the testator makes certain that each of the heirs receives at least some inheritance (Tashbetz 3:147; Ketzos 282:2; see Shu”t Chasam Sofer, Choshen Mishpat #151 who disagrees).

Others explain that one should provide inheritance for one’s daughters as a means of encouraging their shidduchim, attracting potential husbands by the expectation that they will eventually receive an inheritance (Shu”t Maharam Mintz #47, quoted by Nachalas Shiva 21:4:2).

Others contend that when the accepted practice is that all children inherit equally, one should follow this custom to make sure that a machlokes does not result from unrealized expectations (Gesher HaChaim, 1:8; cf. MiDor L’Dor pg. 31 who seems to disagree).

Gesher HaChaim records a story of a great talmid chacham who wanted his estate divided exactly as the Torah instructs. Thus, he arranged legally that his bechor should receive a double portion, and that only his sons should receive inheritance and not his daughters. Unfortunately, the result of this distribution was a legacy of machlokes that created a tremendous chillul Hashem. For this reason, Gesher HaChaim strongly recommends that a person divide his estate according to what is the expected norm in his community.

It is important to realize that legal rights and responsibilities are never governed by secular law. A Torah Jew realizes that Hashem’s Torah is all-encompassing, and that every aspect of one’s life is directed by Torah. Thus all financial aspects of our lives are also governed by halacha, and one should be careful to ask shaylos about one’s business dealings.

 

Does Olive Oil Require a Hechsher?

olive oilQuestion #1: Were we mistaken?

“Where I grew up, we routinely used olive oil in the kitchen without any hechsher. Was there any halachic basis for this practice?”

Question #2: Is it the real thing?

“I read recently that adulteration of olive oil is very common. How can I use this oil?”

Question #3: Which should I choose?

“Which is preferred? Using vegetable oil from a factory that produces only vegetable oils, or from a factory that is being koshered prior to every production of kosher oil?”

Answer:

A discussion of whether one may consume olive oil or vegetable oils without a proper hechsher allows us to touch on several different kashrus issues, both theoretical and practical. Let us begin with the mitzvah of orlah. The Torah (Vayikra 19:23) prohibits eating or benefiting from fruit grown on a tree during its first three years. Such fruit is called orlah. The Torah’s prohibition applies whether the tree was planted by a Jew or a gentile, and whether it grew in Eretz Yisroel or in chutz la’aretz. However, many leniencies apply to the fruits that grow in chutz la’aretz that do not apply to those growing in Eretz Yisroel (Mishnah Orlah 3:9).

Although most agricultural mitzvos of the Torah apply only in Eretz Yisroel, a special halachah lemoshe misinai¸ a law taught to Moshe Rabbeinu at Har Sinai without any source in the written Torah, teaches that the mitzvah of orlah applies also in chutz la’aretz (Kiddushin 39a). However, this particular halachah lemoshe misinai came with an intriguing leniency. In a case of doubt whether or not something is prohibited according to Torah law, the usual rule requires that we be stringent and prohibit the item (Avodah Zarah 7a). As a result, in Eretz Yisroel, one may not purchase a fruit without first determining whether there is a significant possibility that the fruit is orlah. In the case of orlah from chutz la’aretz, the halachah lemoshe misinai teaches that the fruit is prohibited only if one knows for certain that it is orlah. Any other fruit grown in chutz la’aretz is not included in the prohibition of orlah.

Terumos, maasros and shmittah

Oil of olives grown in Eretz Yisroel involves other kashrus concerns, including the various laws germane to shevi’is (shmittah) and the requirement to separate terumos and maasros. Technically, terumos and maasros do not require kashrus supervision, since the consumer can always purchase the item un-tithed and then separate terumos and maasros himself. However, a consumer who prefers that someone else separate terumos and maasros must purchase fruit and vegetables only with a hechsher that can be assumed to have attended to this satisfactorily.

Shevi’is may also be a concern. (Please note that one does find shmittah wine in the marketplace. These products involve many halachic questions that need to be resolved. Prior to using them, and preferably before purchasing them, be careful to speak to a rav for direction as to what to do.)

Refined olive oil

When discussing olive oil, we should realize that edible olive oil can be divided into two categories: virgin, or cold-pressed oil, and refined oil. One concern about the kashrus of refined olive oil is the possibility that it was produced on equipment that had been used to refine oils made from animal fat. Edible-oil refineries often process products made from beef tallow, lard or non-kosher fish on the same equipment that they refine vegetable oil products, which could include olive oil. This creates a kashrus problem for two different reasons. First, the manufacturer has no incentive to clean the equipment between productions of animal and vegetable fat products, and therefore a run of a non-kosher product usually leaves a considerable amount of fat on the equipment that subsequently becomes mixed into whatever is run next. Second, since the refining of these products is done at high temperatures, the otherwise kosher oil absorbs non-kosher flavor.

Historical precedent

Hundreds of years ago, halachic questions fairly similar to our modern kashrus issues had already been raised. Before discussing some of these cases, we need an introduction to a different halachic issue, called nosein taam lifgam, meaning that an ingredient detracts from the taste of the finished product. There is a dispute among tanna’im (Avodah Zarah 67b) whether a non-kosher food is prohibited when it becomes dissolved into a kosher product to which it gives an unpleasant taste. The conclusion is that nosein taam lifgam is permitted, even when your taste buds sense the presence of the non-kosher food. The Mishnah’s (Avodah Zarah 65b) example is non-kosher wine that fell into dried figs, which remain kosher because the wine detracts from the taste of the figs.

Sixteenth century olive oil

With this added piece of information, we can now examine what I find to be a fascinating halachic discussion. In the sixteenth century, a talmid chacham named Aharon ben Gershom sent the Rema (Shu”t Harema #53, 54) the following inquiry:

A ger tzedek, whose father was in the business of importing olive oil to Poland from Italy, told me that shipping the oil in wooden casks (apparently the most common way of shipping oil in that era) presents a problem, because of the porous nature of wood. The ger told me that, to avoid precious oil from seeping into or through the barrels, the insides of the barrels are coated with lard, which seals the barrel so that the olive oil does not leak out.

Thus, all olive oil available in Poland, where the Rema lived, would present a kashrus problem.

The Rema responds

However, the Rema ruled that one may purchase the barreled olive oil. He contended that even if the barrels are indeed sealed with lard, the olive oil inside remains permitted. The Rema rallied several proofs to this conclusion. The first is based on the historical precedent of a similar case, in which wooden barrels used to store beer were first sealed with lard to prevent seepage. An earlier authority, the Mordechai (Avodah Zarah #819), had ruled that one may purchase beer from gentiles, even if the barrels were sealed with lard, because even if taste of the lard leaks into the beer, the taste is nosein taam lifgam, and therefore permitted.

The Rema further notes another source that indicates that seepage of this nature into oil will be considered nosein taam lifgam. The Gemara (Avodah Zarah 68b) mentions a case where a rat fell into edible oil, and it rules that the product is permitted because oil must be kept pleasant smelling, and the flavor that dead rats add to oil is unpleasant. To quote the Rambam (Hilchos Ma’achalos Asuros 15:31): “If a rat fell into beer or vinegar, we measure to see if the kosher liquid is sixty times the volume of the rat because of concern that it provides a good taste to the beer or vinegar. However, if it fell into wine, oil or honey, the product is permitted, even if one can taste the rat in the product, because it provides them with a taam pagum. These three foods require that they be very tasty, and this causes them to spoil and ruin their taste.”

Another proof cited by the Rema to sustain his conclusion is the statement of the Gemara (Avodah Zarah 38b) that cooked oil may be purchased from a non-Jew, without any kashrus concerns. In this passage, the Gemara concludes that though the oil was cooked in a non-kosher pot, the result is nosein taam lifgam and therefore permitted.

Furthermore, the Rema contended that the amount of olive oil in the barrel must surely be more than sixty times the volume of the lard, which would mean that the lard has become bateil, nullified, in the oil. He noted that since Jews have always consumed the barreled olive oil and never tasted any other substance in the oil, the lard is bateil.

Religious gentiles

The Rema provides an additional proof that the lard is bateil.  It is because of the fact that the gentiles used the barreled olive oil during their Lent season, when they were careful not to eat any meat or meat fat. Were they to notice any animal fat taste in the olive oil, they would certainly not use it. The Rema quotes precedent for this unusual reason from a responsum of the Rashba (1:67), in which the Rashba was asked the following:

“A Jew supervised the manufacture of cheese owned by a gentile, so that it should be kosher, and then placed his seal on it. Subsequently, the Jew left the cheese on the premises of the gentile. Do we need to be concerned that the gentile smeared lard on the cheese?”

To this inquiry, the Rashba answered: “If the cheese is owned by a Jew, there is no basis for halachic concern. …When it is sealed properly, we are concerned only that the gentile might substitute. Nowhere do we find that we are required to be concerned that a gentile would waste his own money to cause a Jew to violate a mitzvah. And even if the cheese is owned by a gentile, we do not need to be concerned that he smeared lard on the cheese, since today they consider this a prohibited food during the days that they do not eat meat, and they punish people for violating this law.”

A disputant

Rav Aharon, who posed the question to the Rema, noted that one early authority, the Issur Vaheter (32:16), expressly stated that animal oil provides a positive taste in vegetable oil. This was his case: “It once happened that someone cooked honey in a pot that had been used to cook meat and was not cleaned afterwards. The honey was then emptied, while still hot, into a dairy pot.” One would think that the both the honey and the dairy pot have now been rendered non-kosher. However, the Issur Vaheter surprises us with the following ruling: “We permitted it, because the meat is nosein taam lifgam into the honey, even though there was actual beef fat in the pot. However, if there had been oil, rather than honey, in the pot, it would have provided a good flavor, and the milchig pot would have become prohibited.” Thus, although the Issur Vaheter acknowledges that meat fat is nosein taam lifgam into honey, it adds a pleasant taste to vegetable oil.

The Rema responded by noting that since the Gemara is not concerned about animal oil mixing into olive oil, the halachah is that it is considered nosein taam lifgam, regardless of what the Issur Vaheter may have held. In order to avoid saying that the Issur Vaheter erred in his analysis, the Rema suggests that the Issur Vaheter drew a distinction between solid vegetable fat, in which case animal oil imparts a positive taste, and liquid vegetable oil, the flavor of which is not enhanced by non-kosher products, including animal fat.

The Shach disputes

Notwithstanding the Rema’s strong stance on the topic, the Shach (Yoreh Deah 103:14) disputes his conclusion, contending that animal oil always imparts a good taste to both solid vegetable fat and liquid vegetable oil. He explains that the Gemara from which the Rema proved his theory is not discussing animal oil at all, but the possibility of contamination with non-kosher wine, which certainly imparts an unpleasant taste to vegetable oil. Thus, in the Shach’s opinion, the position of the Issur Vaheter is correct. Although many authorities agree with the Rema (Shulchan Aruch, Yoreh Deah 103:4 and Gra ad loc.; Peleisi), the majority of later authorities conclude as does the Shach (Chachmas Odom 54:15; Chavos Daas 103, Chiddushim #13, Biurim #7; Badei Hashulchan 103:49).

The Yad Yehudah (103:25) adds another reason for concern, even according to the Rema. The Gemara was presumably discussing beef tallow or lard that has not been refined in any major way, whereas today, when the beef tallow or lard has been refined to remove their more pronounced flavors, they may now provide a positive taste in vegetable oil, notwithstanding the fact that the original product may have been nosein taam lifgam.

The Chachmas Odom and Yad Yehudah conclude that if one knows that the olive oil was produced on equipment that processed non-kosher fat that day, the oil is not kosher. However, when one does not know that this is the situation, one may assume that the oil is kosher. Thus, the barrels of olive oil in the time of the Rema were indeed kosher, although today’s vegetable oil manufactured on non-kosher equipment might not be, depending on how often the plant produces animal oil, and whether the equipment is cleaned thoroughly in between the two productions.

At this point, we can address one of our opening questions: “Where I grew up, we routinely used olive oil in the kitchen without any hechsher. Was there any halachic basis for this practice?”

I have been told that the rabbonim in both Tunisia and Morocco allow consumption of any oil produced there, whether olive or vegetable oil, whether refined or not. They say that no animal or fish oil is available in these countries. Although the equipment used for olive oil can also be used for grape seed oil, which might also be halachically problematic, I believe that these two countries do not produce any grape seed oil, either.

Hot off the press

However, one should avoid relying on these heterim in a country where animal oil products are produced on the same equipment as vegetable oil. As I mentioned above, one should not assume that these companies clean the equipment between runs of animal and vegetable oil, since this equipment is usually very difficult to clean. A proper hechsher at such a factory would require either that the non-kosher equipment be segregated in a way that it cannot contaminate the kosher product, or that the equipment be cleaned and koshered thoroughly prior to making kosher products. Both of these approaches require skilled and properly trained kashrus staff to make sure that they are done properly.

If the refinery processes only vegetable oil products, then the potential kashrus risks are easier to control.

Heimishe kashrus

A talmid of mine, now a recognized and respected rav where he lives, reported to me that his community sports two kashrus agencies, one that is used by the “frummer” population, and another that is meant for the general population. Notwithstanding this sociological distinction, he has discovered that, in a few instances, the standard of the general kashrus organization is, indeed, higher. For example, the “frummerkashrus organization approves vegetable oil and products only from a privately run, frum brand. This hechsher arranges for a mashgiach to oversee the cleaning and koshering of an otherwise treif facility that produces animal and vegetable oil goods on the same equipment. On the other hand, the “regular” kashrus organization manufactures its goods in a facility that produces only kosher vegetable oils. He asked me which is better to use. Our readers understand why I advised him to use products from a factory that is all kosher, rather than one that was cleaned after non-kosher manufacture.

We now have the answer to another of our original questions: “Which is preferred? Using vegetable oil from a factory that produces only vegetable oils, or from a factory that is being koshered prior to every production of kosher oil?”

Virgin oil

When discussing olive oil, we should realize that edible olive oil can be divided into two categories, virgin or cold-pressed oil and refined oil. Refined olive oil may involve all the concerns I mentioned above. “Virgin oil” means that the oil is separated from the olives without any added heat. Although the friction of the grinding of the olives into oil does create some heat, the mashgichim to whom I have spoken, who check the temperature of production, have told me that the olives get warm but not hot. Thus, there should be no cross-contamination of any non-kosher product into the virgin olive oil.

Although enzymes are sometimes added to assist in removing more oil from the olives during the pressing, these enzymes would not present any kashrus concerns to the finished product.

That which we call an olive…

However, there is concern about adulteration, since virgin olive oil commands a high price in the marketplace, and unscrupulous manufacturers have been caught adulterating it with less expensive oils. Both in Europe and in the United States there have been many scandals and prosecutions involving those who have doctored oil and sold it as virgin or refined olive oil.

Does this mean that the kashrus of virgin olive oil must be tightly monitored? When I researched this question, I received different answers from kashrus organizations. Some contended that although adulteration of virgin olive oil is not uncommon, there are no known instances of introduction of non-kosher ingredients. Therefore, they consider it sufficient for the kashrus agency to visit the factory producing the oil on a periodic basis. Other hechsherim are more concerned, and allow the product to be made under their supervision only when a mashgiach visits the facility frequently during the production.

Remember that these conclusions are only about virgin oil produced in chutz la’aretz, but olive oil produced in Eretz Yisroel may have additional kashrus concerns, particularly about orlah, and therefore requires a good hechsher.

Conclusion:

We should note the many comparisons made between olives and grapes, and this also has halachic overtones. In both instances, they are the only liquids whose brocha is not shehakol, but is ha’eitz, in the instance of olive oil, and hagefen for wine or grape juice. Wine and olive oil are the only fruit products used in korbanos on the mizbeiach. Both vineyards and olive farms are called kerem in Tanach and Mishnaic Hebrew (see Brachos 35a). Let us appreciate the uniqueness of olive oil, while we thank Hashem for the Chanukah miracles.

 

Rav Tzvi Pesach Frank, an Appreciation

Why do some people who keep cholov Yisroel use products made with regular powdered milk?

Can I wear a talis koton made out of nylon?

May one build an eruv around Manhattan?

These and thousands more shaylos were asked of the rav of Yerushalayim, Rav Tzvi Pesach Frank, whose yahrzeit is on the 21st of Kislev.

First, I will provide a brief biography of Rav Tzvi Pesach Frank, zt”l, followed by a discussion of some of his piskei halachah.

Rav Tzvi Pesach Frank was born in Kovno, Lithuania (then part of Russia), on the 4th of Tishrei, 1873 (5634). Kovno was a city full of talmidei chachamim, including Rav Tzvi Pesach’s father, Rav Yehuda Leib Frank. Rav Yehuda Leib had studied in the Volozhin Yeshiva for many years and, after his marriage, his wife supported the family while he continued to learn. As a youth, the young Tzvi Pesach outgrew the town’s melamdim at a young age and he continued to learn by himself in the shul, among married men much older than he.

Rav Tzvi Pesach’s early years were enriched by the contact he had with Rav Yisrael Salanter, who visited Kovno periodically to give shiurim, as well as by contact with Kovno’s rav, Rav Yitzchak Elchanan Spector. He later studied in the yeshivos of Rav Itzele Rabinowitz, known in Yeshivah world as Rav Itzele Ponovitcher, and in Telz, where he learned under Rav Shimon Shkop and Rav Leizer Gordon.

In 1892, Rav Yehuda Leib, Rav Tzvi Pesach’s father, decided that the time had come to move to Eretz Yisroel. He was particularly concerned for the welfare of his two older sons, Tzvi Pesach and Tanchum, who were in danger of being drafted into the Russian army. The two boys were therefore sent to the Holy Land ahead of the rest of the family. Rav Tzvi Pesach and Tanchum, together with a cousin, arrived in Yerushalayim in the fall of 1892.

Three years after he came to Yerushalayim, Rav Tzvi Pesach married. Two years after his marriage, several students of the Alter of Kelm, Rav Simcha Zissel Ziv, opened a Beis Mussar in Yerushalayim, and Rav Tzvi Pesach joined it. The Beis Mussar developed a kollel, where Rav Tzvi Pesach continued to grow in his learning.

THE YERUSHALAYIM BEIS DIN

The first Ashkenazi beis din in Yerushalayim was established in 1841 by Rav Shmuel Salant, the city’s rav. In 1907, Rav Tzvi Pesach, who had already begun teaching in Eitz Chaim Yeshiva, was appointed to the Yerushalayim Beis Din. He was to serve on this beis din until an advanced age, and from the start he was a well respected and astute dayan. When the Rabbonim and Beis Din of Yerushalayim organized the first modern Otzar Beis Din for Shevi’is in 5670 (1910), Rav Tzvi Pesach was one of the dayanim who signed as a member of the Beis Din.

He was a dayan and a poseik in Yerushalayim for over 50 years, the rav of Yerushalayim for 36 years, and a member of the Council of the Chief Rabbinate in Eretz Yisroel since its inception. In all these capacities, Rav Tzvi Pesach led and guided Klal Yisroel, teaching them what the Torah expected, even in the most challenging situations.

In the difficult years of World War I, he would not let hunger or worry distract him from learning. Quoting the sefer Akeidas Yitzchak, he said, “When a person is found in a situation of poverty, he will be able to learn and grow in Torah.” Following this teaching, Rav Tzvi Pesach gave shiurim and clarified halacha, even when there was no food to be had. He would sacrifice a bit of oil from his daily diet in order to learn by lantern, at night. When he lacked even this oil, he would learn by moonlight.

The Jews of Eretz Yisroel, and the rest of the world, rejoiced when the British captured the country from the Turks. The Balfour Declaration, which promised the Jews that Israel would become their national homeland, gave new hope to the war-weary people.

Anticipating new waves of aliya, Rav Tzvi Pesach began encouraging roshei yeshiva in Europe to move their yeshivos to Eretz Yisroel. Eventually, Rav Tzvi Pesach’s efforts bore fruit, and the Slobodka Yeshiva (under the leadership of Rav Moshe Mordechai Epstein and Rav Nosson Tzvi Finkel) moved first to Yerushalayim and then to Chevron, while the rosh yeshiva of Slutzk, Rav Isser Zalman Meltzer, moved to Yerushalayim.

DEVELOPING THE HOLY LAND

In the years following World War I, the Chief Rabbinate was established in Eretz Yisroel. It was viewed with mixed feelings by the religious community. Rav Tzvi Pesach joined the organization with the hopes that it would represent the Torah beliefs on different aspects of life in Eretz Yisroel. In 1918, he became the head of the Yerushalayim Beis Din.

Rav Tzvi Pesach’s love for Eretz Yisroel knew no bounds. He encouraged the creation of agricultural settlements, particularly among frum Jews, and he was always pained by the sight of settlements that did not keep the halachos pertaining to the Land properly. The way to improve the situation, he believed, was to increase the awareness and knowledge of these halachos.

In a letter, he explained his position clearly: “We must establish regular shiurim on these halachos, as our master and teacher, the gaon Rav Yisrael Salanter, wrote in his letter of mussar — the most exalted and fundamental cure…for the wiles of the evil inclination is to learn the Gemara and poskim on the subject vigorously and with great depth….”

Rav Tzvi Pesach also encouraged the purchase of Jewish products over non-Jewish products.

RAV OF YERUSHALAYIM

In 1935, Rav Avraham Yitzchak Kook passed away, leaving the positions of rav of Yerushalayim and chief rabbi of Eretz Yisroel vacant.

Rav Tzvi Pesach Frank was considered the best candidate for these positions. However, when he was approached with the request that he fill the roles, he declined the offer. He felt that the job of chief rabbi would involve too much time that could better be spent learning. In the end, he agreed to become the rav of Yerushalayim, but not to accept the rabbanus of Eretz Yisroel, which was eventually filled by Rav Herzog.

One of the most difficult things that Rav Tzvi Pesach had to contend with was chillul Shabbos. There had been virtually no chillul Shabbos in Yerushalayim prior to World War I, so the desecration of Shabbos in the holiest city on earth pained him terribly. He tried to minimize it, however he could.

In the days of the British Mandate, Rav Tzvi Pesach wrote letters to the British rulers, begging them to enact a law against public Shabbos desecration. He wrote them that his goal was not to compel every individual to observe Shabbos, but that he wanted stores to be closed and that the Hebrew radio hour should not be broadcast on Shabbos.

WAR AGAIN

In 1939, World War II broke out, bringing with it the destruction of European Jewry. Rav Tzvi Pesach, in Yerushalayim, organized days of prayer and fasting on behalf of the Jewish people. He urged his fellow Jews to improve their service of Hashem, in the hope that this would avert disaster. In a letter, Rav Tzvi Pesach wrote comfortingly, “For the Jews, a day is composed of night and then day. For non-Jews, a day is a day and a night. Why is this so?

“The main realm for Jews is the World to Come. Therefore, darkness precedes the light, and we consider a day to begin with the night and end with the day. Non-Jews, however, enjoy only this world, and afterwards they will be in darkness. They experience first day, and then night.”

LEADER OF A FLOCK

Later, as the fledgling country of Israel began to develop, organizing its government, army, industry, economy, education and health care, Rav Tzvi Pesach emerged as one of the, and perhaps the foremost, halachic authorities of his generation. He answered numerous shailos on technology, medicine and industry, covering every subject from powdered eggs to hydroponics.

At this point, let us examine some of his well-known halachic positions:

POWDERED MILK

Those who allow use of non-chalav Yisroel powdered milk follow the opinion presented by Rav Tzvi Pesach Frank. Rav Frank assumed that the halacha follows the Chasam Sofer, who requires Jewish supervision to permit non-Jewish milk, and did not accept the heter of the Pri Chodosh (Yoreh Deah 115:15), who understands that one needs to be concerned about chalav akum only when the non-kosher milk is less expensive than the kosher variety, nor the heter of the Igros Moshe and the Chazon Ish that the takanah did not specifically require that a Jew attend the milking, but that it is permitted when one is completely certain that there is no admixture of non-kosher milk (Igros Moshe, Yoreh Deah 1:47). Nevertheless, Rav Frank permitted powdered milk from an unsupervised gentile source for a different reason.

The poskim permit using cheese that is gevinas Yisrael and butter (I explained  both these topics in other articles), even when these products were made from unsupervised milk. Why did they permit this? Because non-kosher milk is low in casein; it does not curd, which is the first step in producing cheese; and it is also low in milk fat (also called butterfat or cream), which makes it non-profitable to make butter from non-kosher milk.

Rav Frank notes that there is a significant qualitative difference between cheese and butter, on the one hand, and powdered milk, on the other, in that there is an inherent problem with making cheese and butter from non-kosher milk, whereas one can powder any milk. Thus, one could argue that the leniency that applies to cheese and butter should not apply to milk powder, as indeed the Chazon Ish concludes.

However, Rav Frank quotes the Ritva (Avodah Zarah 35b), who pointed out that, technically, one could make cheese even from non-kosher species, but the cheese yield from these milks is very poor, and when the milk curds, most of it becomes whey. Thus, although it is theoretically possible to make cheese or butter from non-kosher milk, the halacha does not require one to be concerned about this. Rather, one may assume that a gentile would not adulterate this milk.

Rav Frank concludes that what permits the unsupervised milk used in cheese and butter is not that it is impossible to use non-kosher milk for this process, but that it is unlikely. Thus, he reasons, although one could powder non-kosher milk, the prohibition of chalav akum was limited to fluid milk and other products available in the days of Chazal which could easily be made from non-kosher milk. Since powdered milk did not exist in the days of Chazal, and since we are certain that standard, available powdered milk is of bovine origin, the prohibition against chalav akum does not apply to milk powder, just as it does not apply to butter and cheese.

NYLON TZITZIS

Another responsum authored by Rav Frank (Shu’t Har Tzvi, Orach Chayim 1:9) discusses whether one fulfills the mitzvah of tzitzis with a four-cornered garment made of nylon. He discusses whether nylon should be comparable to leather, which is exempt from the mitzvah of tzitzis. Rav Frank concludes that leather is not obligated in tzitzis, because it is not woven. He then notes that there are two types of nylon garments, one made from woven nylon thread, which he rules would be required to have tzitzis, and one made from sheets of nylon, which are not woven and are therefore absolved from the mitzvah of tzitzis, just as leather is.

DRINKING BEFORE YOUR ANIMALS

Why should drinking be permitted before one feeds one’s animals when it is forbidden to eat, and, according to many authorities, even to have a small snack? Rav Tzvi Pesach Frank (Shu”t Har Tzvi, Orach Chayim 1:90) provides two reasons for this distinction. First, suffering from thirst is far more uncomfortable than suffering from hunger, so the Torah did not require one to remain thirsty in order to make sure that the animals are fed. Second, the Torah forbade eating before feeding one’s animals out of concern that once one gets involved in eating, he may forget to feed his animals. Drinking does not create this concern, since it takes less time.

COTTONSEED OIL ON PESACH

Rav Pesach Frank (Sefer Mikrai Kodesh, Hilchos Pesach vol. 2 pg. 206) permits the use of cottonseed oil on Pesach, and quotes that Rav Chayim Brisker permitted its use. Cottonseed is not a food at all and, also, does not grow in any way similar to grains, unlike canola that grows similar to the way grains grow. However, Dayan Yitzchak Weiss of the Eidah Hachareidis writes that he is uncertain whether cottonseed oil may be used on Pesach. He cites sources that the prohibition against kitniyos includes any item stored the way grain is stored and forbids eating any seeds, grains, or anything derived from them (Shu’t Minchas Yitzchok 3:138:2 and 4:114:3). As a result, many hechsherim in Eretz Yisroel, for example, the Eidah HaChareidis, treat cottonseed oil as kitniyos, whereas the prevalent practice in the United States allows it.

DESTROYING A FRUIT TREE

Here is another psak of Rav Frank:

“We just moved into a new house, and the only place where we can put a sukkah is in an area which is shaded by a fruit tree. May we chop down the tree, in order to have a place to build our sukkah?” Rav Frank analyzes the topic and is inclined to be lenient, reasoning that the performance of a mitzvah cannot be considered a destructive act. He concludes that one should have a gentile remove it, but not as an agent for a Jew (Shu’t Har Tzvi, Orach Chayim II #102).

ERUV IN MANHATTAN

Rav Menachem Kasher asked Rav Frank whether one could build an eruv in Manhattan. Rav Frank answered that he was not in a position to answer the question specifically, but that, in general, he was in favor of the concept (Shu’t Har Tzvi, Orach Chayim II #24). In this particular psak, he followed a position that was disputed by many of the famed poskim and gedolim of the New York area, including Rav Moshe Feinstein and Rav Aharon Kotler, both of whom published teshuvos to the contrary.

Rav Frank’s teshuvos tend to be on the short side, and are written by explaining the sources of the halachos involved and the basis of his psak in a very clear way. He does not quote many later sources, but, rather, explains clearly how to understand the central issue of the topic and prove why the approach he is following is correct.

Always learning, always clarifying halachos — to his last days, Rav Tzvi Pesach remained the leader of his people in Yerushalayim and the rest of the world. He passed away on 21 Kislev, 1960 (5721), after over half a century of dedicated learning and serving the Klal.