Medicines for Pesach

medicineQuestion #1: The Ubiquitous Lists

“Why do we have lists of acceptable medicines for Pesach? Aren’t they all inedible?”

Question #2: Leavening Forever!

“Is leavened dough always chometz?”

Question #3: The Spoiler

“Do prohibited foods remain so after they spoil?”

Introduction

As we all know, the Torah prohibits eating, using or even owning chometz on Pesach. But do these laws apply to something that is no longer edible? May I swallow it as medicine? Understanding properly the source material is our topic for this week’s article.

We should first note that many of these issues are germane not only to chometz, but also in regard to all foods that the Torah prohibits (issurei achilah): Does the Torah ban them even after they have become inedible? Can this be considered eating? And, assuming that the Torah does not prohibit them, are they perhaps forbidden because of a rabbinic injunction? Furthermore, if they were proscribed due to a rabbinic decree, perchance some exemption was provided for a medical reason, even when it is not pikuach nefesh, a life-threatening emergency.

Pikuach nefesh

It is important to point out that most of our discussion is not about instances of medicines necessary because of pikuach nefesh. With very few exceptions, an emergency that might endanger someone’s life, even if the possibility is remote, requires one to take whatever action is necessary, including consuming non-kosher food and benefiting from prohibited substances. We will return to this discussion later in this article, but only after we understand the basic principles.

Unusual benefits

A question similar to what was raised above — whether non-kosher foods that are now inedible remain prohibited — relates to items from which the Torah prohibited benefit (issurei hana’ah), such as the mitzvah of orlah. Does this prohibition apply only if one benefits from orlah fruit the way people typically utilize the forbidden item, such as by selling it or by polishing furniture with orlah lemon juice, or does the prohibition apply even to using the item in an unusual way, such as by taking edible fruit and using it as an ointment?

Unusual eats

Let us begin our search with the original Gemara sources of this discussion, which provides the following statement: One does not get punished for violating any prohibitions of the Torah unless he consumes them the way they are usually eaten (Pesachim 24b). It is not prohibited min hatorah to eat or drink a prohibited substance that is now inedible either because it became spoiled or because a bitter ingredient was introduced (Rambam, Hilchos Yesodei Hatorah 5:8). We will discuss shortly whether there is a rabbinic prohibition involved in eating this food.

The same rule applies regarding eating on Yom Kippur. For example, someone who drank salad dressing on Yom Kippur is not punished for violating the Torah’s law requiring one to fast, because this is not a typical way to eat (Yoma 81a). However, someone who dipped food into salad dressing and ate it violates the Torah laws of Yom Kippur also for the dressing, since this is a normal way of consuming it.

Bad benefits

Similarly, when the Torah prohibits issurei hana’ah, they were usually prohibited min hatorah only when used the way the substance is typically used. However, using the material in an abnormal way, such as by smearing an orlah fruit on his body as an ointment, is not proscribed by the Torah, but only because of an injunction introduced by the Sages, an issur derabbanan. Such an atypical benefit is called: shelo kederech hana’asah.

Rubs me the wrong way

Since the prohibition of benefiting in an unusual way is rabbinic, it is relaxed when there is a medical reason to do so, even when no life-threatening emergency exists. These principles are reflected by the following Talmudic passage:

Mar the son of Rav Ashi found Ravina rubbing undeveloped orlah olives onto his daughter, who was ill. Whereupon Rav Ashi asked Ravina why he did this since the disease was not life threatening? Ravina responded that using the fruit this way is considered unusual because people typically wait until the olives ripen before extracting their oil. Since this is not the normal way to use the olives, the prohibition to use orlah fruit this way is only miderabbanan, and in the case of medical need Chazal were lenient (second version of Pesachim 25b, see Rashi ad locum and Tosafos, Shavuos 22b s.v. aheitera and 23b s.v. demuki).

To sum up: We have established that both issurei achilah and issurei hana’ah are prohibited min hatorah only when they are eaten or used in the way that someone would typically consume them or benefit from them. Benefiting from issurei hana’ah in an atypical way is prohibited miderabbanan; however, the Sages permitted this to be done when a medical need exists. We do not yet know whether this ruling holds true also regarding someone who needs to eat something that is not typically eaten.

Now that we have established some of the basic principles, let us examine some rules specific to the prohibition of chometz that will help us answer our original questions.

When is it no longer chometz?

Can chometz change its stripes so that it is no longer considered chometz? The answer is that it can lose its status as chometz – when it is decomposed or otherwise ruined to a point that it is nifsal mei’achilas kelev, a dog will no longer eat it (see Pesachim 45b). Since it no longer can be used for either food or feed, it loses its status as chometz that one is prohibited from owning and using on Pesach (Tosafos ad locum; Shulchan Aruch, Orach Chayim 442:9; cf. Rashi, Pesachim op cit., whose position is more lenient).

This is true only when the chometz was rendered inedible before Pesach. The Gemara (21b) states that if chometz became burnt before the time on Erev Pesach when one is prohibited from owning it, one may benefit from it even on Pesach. If it was still chometz when Pesach arrived, and it was destroyed or rendered inedible in the course of Yom Tov, it is prohibited from benefit on Pesach (Pesachim 21b).

We will see shortly that there are instances when it is permitted to own and use chometz on Pesach even though it is still edible. But first, we need to explain an important principle.

What is sourdough?

The Torah explicitly prohibits possessing on Pesach not only chometz, but also sourdough (Shemos 12:15, 19; 13:7; Devarim 16:4). What is sourdough? It is dough left to rise until it has become inedible. However, it can be used as a leavening agent added to other dough to cause or hasten fermentation. Since sourdough originates as chometz and can produce more chometz it shares the same fate as chometz – one may not consume, use, or even own it on Pesach. (By the way, although yeast has replaced sourdough as the commonly used fermentation agent, sourdough is often used today in rye breads and other products to impart a certain desired flavor.) This halachah implies that something may no longer be edible and yet still be prohibited as chometz.

Can sourdough go sour?

I mentioned above that once chometz is no longer edible for a dog, it loses its status as a prohibited substance. Does this law apply also to sourdough? Although a Jew may not own or use inedible sourdough on Pesach, does this prohibition apply only to what a dog would eat? May one own and use sourdough on Pesach that decomposed to the point that a dog would not eat it?

These questions are the subject of a disagreement among the rishonim. Many authorities permit owning sourdough that would no longer be eaten by a dog, whereas others, such as the Raavad (Hilchos Chometz Umatzoh 1:2), proscribe owning over-soured dough on Pesach. Those who forbid it do so because sourdough is never considered an edible product, yet the Torah banned it because of its facility as a leavening agent, which is not harmed by its becoming inedible. Edibility, whether for man or beast, is only a factor when we are defining prohibited foods, but not when the Torah forbade an item that was never a food to begin with.

The later authorities dispute which way we should rule in this last matter. See the Biur Halachah 442:9 s.v. Chometz who quotes much of the dispute.

When is edible chometz permitted?

We have so far established that although chometz that a dog would not eat is no longer forbidden as chometz, sourdough that a dog would not eat might still be prohibited. However, there is a major exception to this rule – that is, there are instances when chometz may not have reached the level of nifsal mei’achilas kelev, and yet one may own it and even use it on Pesach. This exception is when the chometz is no longer considered to have any food use, notwithstanding that it is technically still edible. Here is the germane passage of Gemara:

Rabbi Shimon ben Elazar says one must destroy chometz only as long as the bread or the sourdough still exists as a food. However, a block of sourdough that was designated to use for sitting is no longer considered chometz,  even when it is still edible (Pesachim 45b and Tosafos ad loc.).

How can one possibly own this sourdough on Pesach if a dog would still eat it?

When presenting this case as a halachic rule, the Rambam (Hilchos Chometz Umatzoh 4:10, 11) introduces us to a new term: nifsad tzuras hachametz, literally, its appearance as chometz is lost. The Chazon Ish (Orach Chayim 116:8) explains this to mean that since people are now repulsed to eat it or to use it in a food product, it is no longer halachically chometz since people no longer regard it as food. The same ruling applies to similar items whose use is not for food, such as chometz used in ointments or to starch clothes (Rambam, Hilchos Chometz Umatzoh 4:10; Rosh, Pesachim 3:5).

A sourdough cover-up

Although the Gemara concludes that we are not quite as lenient as is Rabbi Shimon ben Elazar, this is a question of degree, but not of basic principle. Whereas Rabbi Shimon ben Elazar permitted sourdough that one intends to use as a seat, the Gemara permits it only when the surface of the block is coated with a layer of dried mud. This demonstrates that it is now viewed as a piece of furniture (Rashi). The halachic authorities dispute to what extent one must coat the sourdough block, some ruling that it must be covered on all sides whereas others rule that it is sufficient if the top, the part that will be sat upon, is coated with mud (see discussion in Mishnah Berurah 442:42 and Shaar Hatziyun ad loc.).

Notwithstanding this dispute concerning how much of the block needs to be coated, all agree that the sourdough beneath the dried mud surface is still theoretically edible, yet one may own and use it on Pesach (Shaar Hatziyun 442:69). Since people no longer view this sourdough as food, it loses its status. As the Mishnah Berurah (442:41) emphasizes, our conclusion is that two steps must have occurred to this block before Pesach to permit owning and using it on Pesach:

  • The owner must have designated the sourdough as a seat.
  • Its surface was overlaid with mud.

The dispute among tanna’im regards only whether we require the second step, which Rabbi Shimon ben Elazar did not require.

At this point we can answer one of our opening questions:

“Is leavened dough always chometz?”

The answer is that there are two instances when it is not considered chometz anymore:

  • When it was rendered before Pesach so inedible that a dog would not eat it.
  • When it is being used for a non-food purpose and something has been done to it that makes people repulsed by the idea of eating it.

Eating spoiled chometz

We mentioned above the Gemara’s statement that chometz burnt before Pesach may be used on Pesach (Pesachim 21b). The wording of the Gemara causes the rishonim to raise the following question: Why does the Gemara say that one may benefit from the burnt chometz, rather than permit even eating it, since it is no longer considered food and therefore not included under the prohibition of chometz?

There are two major approaches to answer this question, which result in a dispute in practical halachah. According to the Ran, since the burning rendered the chometz inedible even by an animal, one may even eat it, but the Gemara does not mention this. This approach seems to have the support of the Rambam (Yesodei Hatorah 5:8), who permits consuming a prohibited beverage after a bitter ingredient was added to it.

However, the Rosh contends that the rabbis prohibited one from eating the inedible chometz because of a principle called achshevei, which means that by eating it one is treating it as food. Most later authorities (e.g., Terumas Hadeshen #129; Taz, Orach Chayim 442:8; Magen Avraham 442:15; Shaagas Aryeh #75) follow the Rosh’s approach, prohibiting someone from ingesting inedible chometz because of this rabbinic prohibition.

Is chometz medicine prohibited?

With this lengthy introduction, we are now able to discuss the original question posed above: “Why do we have lists of acceptable medicines for Pesach? Aren’t they all inedible?”

I will now rephrase the question: Does oral intake of a chometz-based medicine qualify as achshevei? If it does, then it is prohibited to ingest inedible chometz, even as medicine, unless the situation is life-threatening.

We find a dispute among later authorities whether ingesting medicine is prohibited because of achshevei. We can categorize the positions into three basic approaches:

  1. Taking medicine is considered achshevei.

The Shaagas Aryeh (#75) rules that ingesting medicine is prohibited miderabbanan because of the rule of achshevei.

  1. Taking medicine is not considered achshevei.

Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 2:92) maintains that medicine never qualifies as achshevei. His reason is that people take even very bitter items for their medicinal value; thus taking something as a medicine does not demonstrate that one views it as food. (See also Shu”t Yechaveh Daas 2:60.)

  1. It depends on why the chometz is an ingredient.

The Chazon Ish advocates a compromise position. Although he agrees with the Shaagas Aryeh that consuming something as a medicine qualifies as achshevei, he contends that achshevei applies only to the active ingredient – the item for which one is taking the medicine. However, he maintains that achshevei does not apply to the excipient ingredients, those added so that the medicine can be made into a tablet.

According to Rav Moshe, as long as the medicine is foul-tasting, there is no need to check if it contains chometz. The chometz is nifsal mei’achilas kelev, and the consumption of medicine does not qualify as achshevei. The only need for a medicine list is when the medicine is pleasant tasting.

On the other hand, according to the Shaagas Aryeh, barring a situation of pikuach nefesh, one may not ingest a medicine containing chometz on Pesach, and it is important to research whether it contains chometz. There are also some authorities who contend that when a prohibited substance has a bitter ingredient added, it remains prohibited. I leave it for each individual to ask his or her own halachic authority to decide which approach they should follow. A lay person should not decide on his or her own not to take a necessary medicine without consulting with a rav or posek.

Even according to the Shaagas Aryeh, there is nothing wrong with owning or even benefiting from these medicines on Pesach – the only prohibition would be to ingest them. Thus, a Jewish owned pharmacy is not required to remove from its shelves foul-tasting medicines that are on the prohibited chometz lists.

Regardless as to which approach one follows, one must be absolutely careful not to look down on someone who follows the other approach. In any situation such as this, this attitude will unfortunately cause great harm, since it can lead to feelings of conceit.

Pikuach nefesh medicine lists

There can be another situation in which it is important for a rav or posek to know whether a product contains chometz, but, personally, I would discourage making such a list available to lay people. The case is: Someone who is taking a pleasant-tasting food supplement containing chometz for a pikuach nefashos condition in which the chometz is not a necessary ingredient. Halachically, we should try to find for this person a non-chometz substitute. For example, many years ago, someone I knew used a medicine where the active ingredient required being dissolved in alcohol, which could be chometz. We arranged to have a knowledgeable pharmacist make a special preparation for Pesach using alcohol that was kosher lepesach. (It is humorous to note that the pharmacist used his home supply of kosher lepesach Slivovitz since it was the easiest available Pesach-dik alcohol, and the preparation did not require pure alcohol.)

Is it a good idea to make a medicine list available to the general public? We know of situations when lay people thought that a product may contain chometz and therefore refused to use it, which led to a safek or definite pikuach nefashos situation, itself a serious violation of halachah. Many rabbonim feel that these lists should be restricted to the people who understand what to do with the information – the rabbonim and the poskim.

Conclusion

According to Kabbalah, chometz is symbolic of our own arrogant selves. We should spend at least as much time working on these midos as we do making sure that we observe a kosher Pesach!

 

Megillas Esther and the Hard of Hearing

Question #1: Congregation Shomei’a Kol

gragger“Our long-standing baal keri’ah for the Megillah has unfortunately become very hard-of-hearing, yet he still insists on reading the Megillah. Do we fulfill the mitzvah if he cannot hear his own reading?”

Question #2: Mrs. Senior Citizen

“At my age, I no longer hear every word of the Megillah. What should I do?”

Answer:

How clearly must one hear the Megillah to fulfill the mitzvah? Do I fulfill the mitzvah if the reader is hard of hearing? These are the first questions we will discuss. As we will see, answering them impacts on the laws of several other mitzvos.

We will start our discussion with the Mishnah (Megillah 19b), which states: Everyone is kosher to read the Megillah, except for someone who is deaf, deranged, or a minor. This seems to provide Congregation Shomei’a Kol with an answer: A deaf person may not read the Megillah.

However, further examination makes this less obvious. The Gemara, expounding upon this Mishnah, discusses a dispute (Mishnah, Berachos 15a) concerning a person who read Shema so softly that he could not hear himself. Has he fulfilled the mitzvah? The Gemara equates the law of one who reads Shema softly to the issue of listening to the Megillah read by a deaf person.

Tanna’ic opinion

The Gemara concludes with four opinions:

  1. Must hear

Rabbi Yosi contends that fulfilling the mitzvos of Shema, Birchas Hamazon, berachos, or the Megillah requires that one hear one’s voice. (As we will see shortly, this understanding of Rabbi Yosi is not universal.) One who recited any of these so softly that he did not hear himself has not performed the mitzvah. Consequently, someone whose hearing is impaired to the extent that he cannot hear himself is absolved from observing these mitzvos, since there is no way for him to perform them. Furthermore, due to the halachic principle that only one commanded to perform a particular mitzvah may be motzi (discharge) others from their responsibility, he cannot read these mitzvos for anyone else. Thus, according to Rabbi Yosi, such a person may also not recite Kiddush or be the sheliach tzibur for others.

  1. Rav Yosef’s understanding of Rabbi Yosi

The Gemara mentions an alternative interpretation of Rabbi Yosi’s position, that only Shema requires one to hear his own words, since there the Torah states Shema Yisrael.  According to this opinion, even a completely deaf person is commanded to read the Megillah and recite all berachos, and someone who recites the Megillah and berachos very softly has fulfilled the mitzvah.

  1. The better to hear you, my dear

The tanna Rabbi Yehudah agrees that one is required to recite Shema, Birchas Hamazon, berachos and the Megillah loudly enough to hear them, yet he maintains that saying them in a softer voice fulfills the mitzvah bedei’evid, after the fact. One who cannot hear is still required to observe all of these mitzvos, including Shema. The Gemara concludes that, according to Rabbi Yehudah, although it is preferable that a deaf person not be motzi others, if he did so, they have fulfilled the obligation.

  1. No need to hear

The most lenient position is that of Rabbi Meir. He maintains that there is nothing wrong, even lechatchilah, with reciting any of these passages so softly that one cannot hear what he said, and he fulfills the mitzvah. A deaf person is obligated in all of these mitzvos and can be motzi others.

The halacha

The Gemara (Berachos) concludes that the halacha follows Rabbi Yehudah.  Preferably, one should read loudly enough to hear, but if one read softly, one fulfilled the mitzvah. This conclusion implies that a deaf person is obligated in all of these mitzvos and that he may be motzi others, at least after the fact.

At this point of our discussion, it would seem that Congregation Shomei’a Kol should determine whether the baal keri’ah can still hear himself speak. If he can, he may read the Megillah for the tzibur. If he cannot hear himself speak, he should not lechatchilah be the reader, but those who hear him have performed the mitzvah bedi’eved. This is indeed the halachic conclusion of several authorities (Bach; Magen Avraham; Gra).

However, the Beis Yosef (Orach Chayim 689) notes a problem: According to his interpretation of the Rif and the Rosh, and the standard text of the Rambam, all three of these major halachic authorities rule that someone who is deaf cannot be motzi others in reading the Megillah, for all three cite the Mishnah we mentioned earlier: Everyone is kosher for reading the Megillah, except for someone who is deaf, deranged, or a minor. This conflicts with the Gemara ruling that reading without hearing fulfills the mitzvah. This conundrum is even more challenging in light of the Beis Yosef’s policy to generally rule according to these three authorities.

(The Beis Yosef notes that there are alternative readings of the Rambam’s Mishneh Torah on this topic. According to some of the readings, the question we just raised will not be difficult according to the Rambam, but only according to the Rif and the Rosh.)

Position of the Bach

For reasons beyond the scope of this article, the Bach disputes the Beis Yosef’s analysis of the Rif’s position on this matter. However, he agrees with the Beis Yosef’s understanding that the Rosh held that a deaf person cannot be motzi others in reading the Megillah. Thus, he is also faced with the Beis Yosef‘s conundrum that this ruling contradicts the conclusion of the Gemara. How one resolves this contradiction will affect several halachic issues, and will impact the questions mentioned in the beginning of our article.

I am aware of two approaches presented by the early poskim to resolve the problem. The Beis Yosef himself suggests that, because reading Megillah is a mitzvah that requires pirsumei nisa, publicizing the miracle, this quality is lacking when the Megillah is read by a deaf person. Therefore, hearing the Megillah read by a deaf person does not fulfill the mitzvah.

Incapable of hearing himself

Other authorities explain the ruling of the Rosh by drawing a distinction between a deaf person and someone who spoke very softly. They explain that someone who is absolutely deaf cannot fulfill the mitzvos of Shema, Birchas Hamazon, berachos or hearing the Megillah (Bach; Taz). But someone who read them softly fulfills the mitzvah, provided that he is capable of hearing these words were he to recite them louder.

Based on these answers, the Shulchan Aruch and the Taz conclude that someone who heard the Megillah from a deaf person did not fulfill his mitzvah. Other authorities disagree, concluding that those who heard the Megillah from a deaf person have fulfilled their obligation (Bach; Magen Avraham; Gra).

Let us now examine one of our opening questions: “Our long-standing baal keri’ah for the Megillah has, unfortunately, become very hard-of-hearing, yet he still insists on reading the Megillah. Do we fulfill the mitzvah when he reads it?”

As long as he can still hear what he reads, he can be motzi people in Megillah reading. If his hearing is so impaired that he cannot hear himself, the Shulchan Aruch rules that those who hear his Megillah reading have not fulfilled the mitzvah. Although there are authorities who are more lenient bedei’evid, they agree that lechatchilah he should not read the Megillah for others.

Must a deaf person read the Megillah?

Is a deaf person obligated to read the Megillah? (Obviously, he is incapable of hearing it from others.) Most authorities conclude that he must read the Megillah, unlike the conclusion of the Shulchan Aruch. The Mishnah Berurah notes that several rishonim rule that a deaf person is required to read the Megillah, and that this approach should be treated as the primary halachic opinion.

With this background, we can now discuss another of our opening questions:

Mrs. Senior Citizen

“At my age, I no longer hear every word of the Megillah. What should I do?”

We should note that women are obligated to hear Megillah to the same degree that men are. Many elderly people share the problem raised by Mrs. Citizen. Technically, they must hear every word of the Megillah read by someone else, or they must read it themselves. Another option is to read along with someone who knows how to read it correctly. If this person whose hearing is impaired is following this last option, he or she must be careful to read from a kosher Megillah (Shulchan Aruch, Orach Chayim 490:4, 7). However, reading from a kosher Megillah is a daunting task for people who never learned to read the Megillah in their youth.

What to do?

Here is a lucrative, and very useful, suggestion for sofrim. Halacha prohibits adding anything unnecessary to a sefer Torah. But a Megillah is kosher, even if it contains vowel signs (nikud) and/or taamei hamikra (often called trop) to instruct how to chant it correctly. (One fulfills the mitzvah even if one cannot read the taamei hamikra at all, as long as one is able to read the words.)

One should note, however, that some early authorities maintain that one should not place nikud in a Megillah, although they agree that a Megillah with added nikud is still kosher (Levush, Orach Chayim 691:5). Other authorities rule that if there is no proficient Megillah reader available, one may add nikud to a Megillah and use it for public reading (Elyah Rabbah 691:6, quoting Be’er Sheva). Thus, we have a halachic basis for this niche market.

Suggestion for an enterprising sofer

Here is a suggestion that should be acceptable according to all opinions – to prepare transparencies with nikud and trop to place directly over the Megillah. Thus, nothing has been written into the Megillah itself, accomodating the Levush’s position, yet anyone able to read Hebrew can read the Megillah with the transparency on it, enabling the hard-of-hearing to fulfill the mitzvah. If a sofer prepares standard-sized megillos, he can mass-produce the corresponding transparencies. People would be forced to purchase his megillos, since other megillos would be out of sync with his transparencies.

Conclusive hearing

In conclusion, most authorities require even completely deaf people to read the Megillah (see Biur Halacha 689:2 s.v. Cheiresh). Since they cannot hear it from someone else, they must obviously read it themselves from a kosher Megillah. We suggested that people who find this difficult can overcome the challenge by having nikud and trop written in a kosher Megillah or by using a transparency that includes them.

 

The Whys and Wherefores of Parshas Zachor

Purim maskQuestion #1: Homebound

“As a mother of several small children, it is not easy for me to go out on Shabbos to hear Parshas Zachor. Am I required to do so?”

Question #2: Outreaching in the Afternoon

“At the outreach program that I run, many of our students do not arrive until Shabbos afternoon. Should we conduct a Parshas Zachor reading then for them?”

Question #3: Reading without a Brochah

“Why is no brochah recited on Parshas Zachor at a women’s reading?”

Introduction

This Shabbos we read the special maftir that begins with the words Zachor es asher asah lecha Amalek baderech be’tzeis’chem mimitzrayim, “Remember what Amalek did to you on the road as you were leaving Egypt.” According to the Rambam and many others, this short maftir reading actually includes three different commandments:

(1) A positive mitzvah, mitzvas aseh, to remember the evil that Amalek did.

(2) A lo saaseh commandment not to forget what happened.

(3) The mitzvah to blot out the people of Amalek, mechiyas Amalek (Rambam, Hilchos Melachim 5:5, and Sefer Hamitzvos, Positive Mitzvos #188, 189; Negative Mitzvah #59; Semag).

The Torah’s repetitive emphasis, remember and do not forget, teaches that the commandment “remember” means to express, to state it as a declaration. This is similar to the mitzvah of Kiddush, Zachor es yom haShabbos lekadsho, which is a requirement to state the sanctity of Shabbos, and not simply to remember Shabbos (Sifra, beginning of Parshas Bechukosei). In addition, many authorities derive from the doubled command that the Torah requires us to review this declaration annually, since, after a year, one might forget (see Sefer Hachinuch, Mitzvah 603). The Sefer Hachinuch explains that since the mitzvah is to make sure that one does not forget, the Torah requirement is to restate this reminder every one to three years. The requirement of the mitzvah is fulfilled both in one’s heart and on one’s lips (Sefer Hachinuch).

(We should note that some authorities [Behag, Rav Saadiya] count all three of these as one mitzvah in the count of the 613. Presumably, they consider these additional statements of the Torah as encouraging us to remember to fulfill the mitzvah of destroying Amalek.)

The Gemara (Megillah 18a) states that the positive mitzvah of remembering what Amalek did requires reading from a Sefer Torah. For this reason, many authorities conclude that the annual public reading of Parshas Zachor from a Sefer Torah is required min haTorah (see Tosafos, Megillah 17b s.v. kol and Ritva ad loc.; Tosafos, Brachos 13a; Rosh, Brachos 7:20). Some conclude that the requirement to hear Parshas Zachor is even greater than that of hearing Megillas Esther, since the mitzvah of reading Megillah is miderabbanan, whereas Parshas Zachor is required by the Torah (Terumas Hadeshen #108). For this reason, the Terumas Hadeshen concludes that those who live in settlements that have no minyan are required to go to a place where there is a minyan for Shabbos Zachor to hear this reading, a ruling codified in the Shulchan Aruch (Orach Chayim 685:7).

Those that disagree

Notwithstanding the long list of recognized early authorities who rule that an annual reading of Parshas Zachor is required min haTorah, several later authorities find this position difficult to sustain, contending that the requirement was introduced by Chazal. For example, the Minchas Chinuch (#603) states that the requirements for a minyan and a Sefer Torah can be only miderabbanan. Similarly, Shu’t Toras Chesed (Orach Chayim #37) provides a lengthy analysis why he feels that it is difficult to rule that reading Parshas Zachor annually is a Torah requirement. Nevertheless, in his final conclusion, he accepts the decision of the many earlier authorities, who rule that the Torah requires that we hear Parshas Zachor every year.

Hearing the parshah

At this point, we should address the following question: If we are required to read Parshas Zachor, how do we perform the mitzvah by listening to the reading, without actually saying the words? The answer is that there is a halachic principle called shomei’a ke’oneh: hearing someone recite the appropriate passage fulfills a mitzvah responsibility the same way reciting it does. Shomei’a ke’oneh explains how we observe the mitzvah of Kiddush when we hear someone else recite it, and applies in numerous other situations, such as reading Megillas Esther and hearing shofar.

For shomei’a ke’oneh to work, the individual who is reciting must have in mind that he is performing the mitzvah on behalf of those listening, and the listeners must have in mind that they are fulfilling their duty to perform the mitzvah by listening. It is for this reason that, in most shullen, prior to the reading of Parshas Zachor the gabbai, baal keriyah or rabbi announces that everyone should focus on fulfilling the mitzvah.

Custom of the Gra

The Maaseh Rav (#133) records that the Gra not only received the aliyah for Parshas Zachor, but used to read the Torah himself for that aliyah. Presumably, the reason that he did this was because of the general principle of mitzvah bo yoseir mibeshelucho, “it is a bigger mitzvah to fulfill a commandment by performing the mitzvah oneself than by relying on someone else to perform it.”

The Sefer Torah was pasul!

What is the halachah if one discovers that the Sefer Torah used for reading Parshas Zachor was missing a letter or sustained some other shortcoming that renders it invalid? Must one re-read Parshas Zachor?

Allow me to provide some background. Although there are Rishonim who rule that the mitzvah of keri’as haTorah in general does not require one to read from a kosher Sefer Torah, the halachic conclusion requires that we do. However, if, during or after keri’as haTorah, one finds that the Sefer Torah was not kosher, one is not required to repeat what was already read (Shulchan Aruch, Orach Chayim 143:4). The rationale behind this is that since the mitzvah of reading the Torah is miderabbanan, one can rule that, bedei’evid, after the Torah has been read, the mitzvah has been fulfilled.

The same ruling would apply if the mitzvah of reading Parshas Zachor is miderabbanan. Based on the assumption that the mitzvah of Parshas Zachor is min haTorah, the Pri Megadim suggests that if the Sefer Torah used was found to be invalid, one is required to read Parshas Zachor a second time, from a different Sefer Torah (Mishbetzos Zahav, Orach Chayim 143:1).

Birchas hamitzvah

When Parshas Zachor is read as the maftir, the person receiving the aliyah recites birchas haTorah before it is read, as we do with all aliyos to the Torah. Why is no birchas hamitzvah recited before reading Zachor es asher asah lecha Amalek, since it is one of the 613 mitzvos?

The authorities answer that we do not recite a brochah on an act of destruction, even though the world benefits from the removal of evildoers. This can be compared to one of the reasons cited why one does not recite the full Hallel on the last day of Pesach. “My creations are drowning, and you are singing praise?!” Similarly, it is inappropriate to bless Hashem for the ability to destroy evil (Kaf Hachayim 685:29, quoting Yafeh Leleiv).

What exactly is the mitzvah?

Among the Rishonim and Geonim, we actually find differing opinions as to exactly what the mitzvah entails. Some understand that the mitzvah of remembering Amalek is a requirement to know the laws involved in destroying Amalek (Raavad and Rash to Sifra, beginning of Parshas Bechukosai, as explained by the Encyclopedia Talmudis). According to this approach, the mitzvah of zechiras Amalek is primarily a mitzvah of learning Torah.

On the other hand, most authorities seem to understand that the mitzvah is to take to heart the evil that Amalek did and represents, and that it is our responsibility to combat evil in the world and help make the world a more G-dly place.

Why specifically Amalek? Because after the Exodus from Egypt and the splitting of the sea, all the nations were afraid of the Jews until the moment that Amalek attacked. Although Amalek was beaten, he decreased the tremendous awe and fear that the nations had of the Jews (Rashi).

An afternoon reading

At this point, I would like to address one of the questions cited above:

“At the outreach program that I run, many of our students do not arrive until Shabbos afternoon. Should we conduct a Parshas Zachor reading then for them?”

This actual question was posed to Rav Shmuel Vozner, of Bnei Braq, by someone doing outreach in a small community in Brazil (Shu’t Shevet Halevi 4:71). The community had a minyan in the morning, but most of the people did not come that early. The question was whether they should have a second Parshas Zachor reading late in the day.

Rav Vozner compares this situation to the following responsum authored by the Chida. On Shabbos Parshas Shekalim in a small town, the local townspeople forgot to read the special maftir on Shabbos morning, and realized it in the afternoon. The townspeople, themselves, proposed three suggestions:

Some suggested that at minchah they read Shekalim for the kohen, and for the other two aliyos they read the regular minchah reading from the next week’s parshah.

Others suggested that they read Shekalim on Monday instead of the weekday reading, since it was still before Rosh Chodesh Adar.

Still others suggested that they read Parshas Shekalim the next Shabbos as maftir.

The Chida disputed all three approaches, contending that Shekalim may be read only in the morning, and can be read only on the Shabbos on which it is designated to be read. In his opinion, one who missed reading Shekalim at its appropriate time does not fulfill the takanas chachamim by reading it any other time (Shu’t Yosef Ometz #27).

Rav Vozner contends that, according to the Chida, just as one cannot read Parshas Shekalim after its designated time, one cannot read Parshas Zachor after its designated time, and that, therefore, one cannot read it in the afternoon for those who missed it in the morning.

However, it appears that not all authorities accepted this ruling of the Chida. The Dagul Meirevavah (Orach Chayim 135) rules that a community that was unable to have keri’as haTorah on Shabbos morning, but was able to have it on Shabbos afternoon, should read the full reading and call up seven people prior to beginning minchah. Then, after reciting Ashrei and Uva Letzion, they should take out the Sefer Torah again and read the appropriate minchah reading from the following week’s parshah. Thus, he holds that one may read the main Shabbos reading in the afternoon, if necessary, which conflicts with the Chida’s ruling to the contrary.

One could argue, however, that the Dagul Meirevavah might accept the Chida’s ruling that one cannot read Parshas Shekalim in the afternoon, but for a different reason: maftir may be read only immediately following the rest of the week’s reading, and not by itself.

On the other hand, there might be a difference between Shekalim, whose reading does not fulfill any mitzvah of the Torah, and Zachor, which fulfills a Torah mitzvah that we are required to observe, even if Chazal had not made any special takanah. This is the reason why there is a widespread custom of having Parshas Zachor readings in the afternoon for those who cannot attend the reading in the morning.

Women and Parshas Zachor

Now that we understand the basics of the mitzvah, we can address the question of whether women are obligated to hear Parshas Zachor annually. The Chinuch states that women are excluded from the requirement to remember to destroy Amalek, since they are not the ones who are expected to wage war. Therefore, in his opinion, women have no obligation to hear Parshas Zachor, although they certainly may hear it and receive reward for doing so, as one who observes a mitzvah that he/she is not required.

However, other authorities dispute the Sefer Hachinuch’s approach. In Adar 5628 (1868), Rav Yaakov Ettlinger, the author of the classic Aruch Laneir commentary on several mesechtos of the Gemara, was asked by his son-in-law, Rav Moshe Leib Bamberger, whether women are required to hear Parshas Zachor. The Aruch Laneir reports that he asked his rebbe, Rav Avraham Bing, who told him that Rav Nosson Adler (who was also the rebbe of the Chasam Sofer) ruled that women are required to hear Parshas Zachor, and he insisted that they all go to hear it. The Aruch Laneir explains that Parshas Zachor is not a time-bound mitzvah, since one can read Parshas Zachor whenever one wants, as long as one reads it once a year. He then quotes the Chinuch’s reason to absolve women from the obligation, and notes that it should not make any difference whether women are the actual warriors; they still are involved in destroying Amalek, as evidenced by Esther’s participation (Shu’t Binyan Tziyon 2:8).

Others dispute the basic assumption of the Chinuch, since, in a milchemes mitzvah, everyone is obligated to contribute to the war effort, even a newlywed bride (Sotah 44b). Evidence of this is drawn from Yael, who eliminated Sisra, and Devorah, who led the war effort (Minchas Chinuch). On the other hand, others find creative reasons to explain and justify the Sefer Hachinuch’s position. (The intrepid reader is referred to the responsum on the subject penned by Rav Avraham of Sochatzov [Shu’t Avnei Nezer, Orach Chayim #509].)

The Kaf Hachayim (685:30) presents a compromise position, ruling that women are obligated in the mitzvah to remember the events of Amalek, but that they are absolved of hearing Parshas Zachor, since this is a timebound mitzvah. (See also the Toras Chesed, who reaches a similar conclusion, but based on a different reason. More sources on this topic are cited by Shu’t Yechaveh Daas 1:84.)

With or without a brochah?

It has become fairly common today to have special women’s readings of Parshas Zachor later in the day, for the benefit of those who must take care of their children in the morning during regular shul davening. It is also universal practice not to recite a brochah before these readings. There are three reasons why one should not recite a brochah on the afternoon reading:

(1) We do not recite a brochah on the mitzvah of Zachor.

(2) It is not certain that women are obligated to hear this reading.

(3) It is not clear that one may recite maftir when it does not immediately follow the reading of the Torah.

Notwithstanding what we have just written, some authorities contend that whenever one reads from a Sefer Torah in public, one is required to recite a brochah, because of the Torah-ordained mitzvah of birchas haTorah. In their opinion, this is true even when the reading itself is not required, and even when one has already recited birchas haTorah in the morning (Be’er Sheva and Shu’t Mishkenos Yaakov, both quoted by the Toras Refael #2). Although the Toras Refael concludes that most Rishonim dispute that reciting birchas haTorah under these circumstances is a Torah requirement, he nevertheless understands that the Shulchan Aruch rules that birchos haTorah is required miderabbanan whenever the Torah is read in public.

Based on this opinion of the Toras Refael, some contemporary authorities feel that one should avoid the entire practice of extra Shabbos Zachor readings, since the special reading creates a safek brochah, a question as to whether one should recite a brochah on the reading (seen in print in the name of Rav Elyashiv). Nevertheless, the accepted practice is to have these special readings to enable women to fulfill the mitzvah.

On the other hand, the Minchas Yitzchak was asked whether one makes a brochah for an auxiliary Parshas Zachor reading (Shu’t Minchas Yitzchak 9:68). He quotes those who contend that every public reading of the Torah requires a brochah and then notes many authorities who did not share this opinion. The Minchas Yitzchak then specifically mentions the practice of those who read all of Sefer Devarim in shul on the night of Hoshanah Rabbah without reciting a brochah, noting that this was the practice of the Divrei Chayim of Sanz. He also quotes several other authorities who advocate reading the parshah of the day’s nasi after davening each day of the first twelve days of Nissan, also a custom performed without first reciting a brochah. Thus, we have several precedents and authorities who ruled that one may have a public reading of the Torah without reciting a brochah, and there is, therefore, no need to change the established practice of reading Parshas Zachor and not reciting a brochah beforehand. We should also note that when the Magen Avraham (139:5) quotes the opinion of the Be’er Sheva, he opines that once one has recited the birchos haTorah in the morning, he exempts himself from any requirement to recite further brochos on reading Torah that day, unless there is a specific institution of Chazal to recite them.

Reading on Purim

Some authorities contend that a woman may fulfill her responsibility to hear the mitzvah of mechiyas amalek by hearing the Torah reading on Purim that begins with the words Vayavo Amalek (Magen Avraham 685). Since many later poskim dispute this, I refer you to your halachic authority regarding this question.

Conclusion

The Semak (Mitzvah #23) explains that the reason for the mitzvah not to forget what Amalek did is so that we always remember that Hashem saved us from Amalek’s hands. Constant perpetuation of this remembrance will keep us in awe of Hashem, and this will inspire us to act in accordance with His wishes.

 

 

Bensching in the Dark on Rosh Chodesh

In honor of Rosh Chodesh later this week, and Purim in two more weeks, I present:

Bensching in the Dark on Rosh Chodesh

sunsetQuestion #1: Rosh Chodesh arrival

“I began eating dinner before Rosh Chodesh, but when I finished, it was dark. Do I recite Yaaleh Veyavo?”

Question #2: Rosh Chodesh departure

“I began eating dinner on Rosh Chodesh, but when I finished, it was dark. Do I recite Yaaleh Veyavo?”

Introduction

When we recite birchas hamazon on Shabbos, Yom Tov, Chol Hamoed, Rosh Chodesh, Chanukah and Purim, we include special prayers to commemorate the holiday: On Shabbos, a passage beginning with the word Retzei; on Yom Tov, Chol Hamoed, and Rosh Chodesh, the prayer Yaaleh Veyavo; and on Chanukah and Purim, Al Hanissim. However, it is inappropriate to recite these prayers on an ordinary weekday. What does one do when the date changes between the beginning of the eating of the meal and the bensching? Do we recite the bensching appropriate to the day on which the meal began or appropriate to when the meal ended?

Weekly seudah shelishis

Let us start this discussion with a very common application. Many people eat the last meal of Shabbos, colloquially but not accurately called shalosh seudos, late in the afternoon, finish after dark, and then recite Retzei in bensching. (The correct way to refer to this meal is seudah shelishis or seudah shelishit.) Most of us are unaware that this practice is disputed by early authorities. The Rosh (Shu’t HaRosh 22:6; Pesachim 10:7) asserts that once Shabbos is over, one cannot say Retzei. He compares this to davening a Shabbos prayer after the conclusion of Shabbos, which is certainly inappropriate. Just as the fitting prayer is determined by when one is praying, so, too, the correct text of bensching is determined by when one is reciting it. Similarly, in the Rosh’s opinion, a meal begun on Rosh Chodesh, Chanukah or Purim that continues into the night following the holiday should not include mention of the special day on which the meal began. This position is followed by the Rosh’s son in the Tur (Orach Chayim 695). According to this approach, the common practice of completing the Purim seudah after the day is over and including Al Hanissim in the bensching is incorrect.

A disputing opinion is quoted in the name of the Maharam (see Hagahos Maimaniyos, Megillah 2:14:1), which states that a meal begun on a holiday maintains its special mention, even when one bensches after the day is over. Thus, when one bensches on seudah shelishis after it is dark, one still recites Retzei. Similarly, if one’s Purim seudah extends into the night, one still recites Al Hanissim in the bensching. These laws apply, as well, on Yom Tov, Rosh Chodesh and Chanukah (Shulchan Aruch, Orach Chayim 188:10). The practice, already cited in earlier authorities, of completing the Purim seudah after the day is over and then reciting Al Hanissim is based on this position of the Maharam (Rema, Orach Chayim 695:3).

What is the Maharam’s rationale? According to one approach, his position is based on the concept that one can extend the sanctity of Shabbos, even after the day is technically over (Dagul Mei’revavah, end of Orach Chayim 188).

Of course, the question is how this affects Purim. The Maharam is quoted as ruling that one who began his meal on Purim, and completed it after the holiday is over, should still recite Al Hanissim in bensching. However, there is no Talmudic source to say that Purim has a concept of tosefes kedusha. According to the Dagul Mei’revavah’s approach to understanding the Maharam, one must assume that there is tosefes kedusha on Purim, Chanukah and Rosh Chodesh to the extent that one then recites the appropriate addition to the bensching.

Ending Shabbos before bensching

As we just explained, the Maharam rules that one recites Retzei on motza’ei Shabbos for a meal that began on Shabbos. However, if someone recited havdalah and has not yet bensched for seudah shelishis, he must omit Retzei, since recital of havdalah ends Shabbos. The same is true not only regarding havdalah, which clearly ends Shabbos, but even when one does anything implying that Shabbos is over – such as davening maariv or even simply answering Borchu, since these activities occur only after the conclusion of Shabbos (Shu’t Maharil #56). The Magen Avraham (188:17) notes that someone who davened maariv before Shabbos is over (which is halachically permitted under extenuating circumstances) does not say Retzei when he subsequently bensches, even though he is still required to observe Shabbos (since it is before nightfall). This ruling is followed by the Mishnah Berurah (188:32) and other authorities. The Magen Avraham (263:33) and other authorities are uncertain whether one who said hamavdil bein kodesh lechol after Shabbos is over, but has as yet not bensched after seudah shelishis, may still say retzei.

Halachic deciders

How do the halachic authorities decide regarding the dispute between the Maharam and the Rosh?

The Rema consistently follows the position of the Maharam (Orach Chayim 271:6; 695:3). However, it is a bit unclear how the Shulchan Aruch rules. He discusses these laws in three different places in Orach Chayim. In the laws of bensching (188:10), he concludes according to the Maharam that the structure of the bensching follows the beginning of the meal, whether it is Shabbos, Rosh Chodesh, Purim or Chanukah. When discussing a Purim seudah that continues into the night, the Shulchan Aruch (695:3) cites as the main opinion the position of the Maharam that one recites Al Hanissim in bensching, yet he quotes the Rosh as an alternative opinion that one omits Al Hanissim once Purim is over. However, regarding someone who concludes a meal on Friday afternoon immediately before Shabbos and who will be bensching on Shabbos, the Shulchan Aruch requires the person to include Retzei (271:6), even if he did not eat anything on Shabbos.

The Bach (188 and 695) views the Shulchan Aruch as being inconsistent, arguing that this last decision contradicts the position of the Maharam, which the Shulchan Aruch himself follows in 188 and 695. The Bach understands, as do other authorities (e.g., the Aruch Hashulchan 188:23), that, according, to the Maharam, the essential factor is when the meal began, whereas, according to the Rosh, the determining factor is what day it is at the moment of bensching. According to the Bach’s understanding of the Maharam, someone who began a meal before Shabbos and continued it into Shabbos should omit Retzei, which contradicts the conclusion of the Shulchan Aruch. The Bach’s approach is consistent with the ruling of the Rema.

There are other approaches how to resolve the conflicting rulings of the Shulchan Aruch. The Magen Avraham (271:14) explains that when a ruling is contingent on the dispute between the Maharam and the Rosh, one should say Retzei. That is, someone who eats Friday afternoon and is bensching on Shabbos should say Retzei, following the approach of the Rosh, whereas someone who eats on Shabbos and is bensching after Shabbos should recite Retzei, in accordance with the opinion of the Maharam.

However, other authorities contend that the Shulchan Aruch is following the Maharam consistently, but they understand the Maharam’s position differently from the way the Bach did. Whereas the Bach understood the Maharam to be saying that the sole determinant is when the meal began, they understand that either the beginning of the meal or the time of bensching determines whether we recite the special holiday prayer. In their opinion, if one began a meal on a holiday but bensched only after the holiday was over, one recites the appropriate holiday passage (Taz 188:7; Elyah Rabbah 188:20).

Tosefta

A compromise position

Until now, we have cited two early authorities, the Rosh and the Maharam, as the basic positions on this topic. There are later authorities who present a middle ground that clearly disagrees with both the Maharam and the Rosh (Magen Avraham 188:18, quoting Maharash, quoted by the Shelah and the Eimek Beracha; see also Shu’t Rema 132:5). This approach draws a distinction between a Shabbos meal extending after Shabbos and those of Rosh Chodesh and Chanukah extending after the respective holiday. Since there is a concept of tosefes Shabbos, i.e., the mitzvah to extend the day of Shabbos, the extension of the day retains sanctity, and therefore the meal is still considered a Shabbos meal warranting the recital of Retzei. However, since neither Rosh Chodesh nor Chanukah have a concept of tosefes kedusha, and, in addition, they have no requirement to eat special meals, the special prayer associated with them should not be recited once the day has passed.

Rosh Chodesh arrival

At this point, we can discuss our opening question:

“I began eating dinner before Rosh Chodesh, but when I finished, it was dark. Do I recite Yaaleh Veyavo?”

We need to ask a few questions: Did he eat on Rosh Chodesh? If he did, then according to Magen Avraham, Taz, Elyah Rabbah and Mishnah Berurah he should recite Yaaleh Veyavo, whereas according to the Aruch Hashulchan, and probably several other authorities, he should not. I would personally rule that he should follow the majority opinion and recite Yaaleh Veyavo in this situation.

If he did not eat on Rosh Chodesh, according to the Rosh and Magen Avraham, he should recite Yaaleh Veyavo. I refer our reader to his own posek for an answer what to do under these circumstances.

Rosh Chodesh departure

As far as our second question is concerned: “I began eating dinner on Rosh Chodesh, but when I finished, it was dark. Do I recite Yaaleh Veyavo?”

Assuming that he did not yet daven maariv, according to the Magen Avraham, Taz, Elyah Rabbah, Aruch Hashulchan and Mishnah Berurah, he should say Yaaleh Veyavo, whereas according to the Rosh, Tur, Maharash and Shelah he does not. It would seem to me that, in this instance, the halachah should not be affected by whether he ate after it became dark.

Conclusion

When we show how careful we are to honor Hashem with the appropriate wording of our bensching, we demonstrate our concern and our priorities. Whatever conclusion we reach regarding whether we recite these special inserts, we should certainly pay careful attention to the meaning of the words of one’s bensching at all times.

 

Raiding the Pushka and Related Questions

In honor of Shabbos Shekalim, I present:

Raiding the Pushka and Related Questions

clip_image002Question #1: TREMENDOUSLY APPEALING!

Yehudah presents the following dilemma: “I often feel pressured to pledge to the tzedakah appeals in shul; however, I am afraid that I will forget to pay afterwards. Is there a simple way to avoid creating a problem?”

Question #2: BORROWERS ANONYMOUS

Susan asks: “I often borrow small change from the pushkas that I keep on my window sill, but I am meticulous to return what I borrowed. Am I, indeed, permitted to borrow from the pushka?”

Question #3: DIVERTING ACTIVITIES

Tamar calls: I have a pushka in the house from an organization with which I have no contact. Instead, I would like to donate the money to my son’s yeshiva, to demonstrate my hakaras hatov.

Answer:

In order to answer these questions, I first need to explain how a few general concepts affect the laws of tzedakah:

  1. NEDER – A VOW

The Torah requires us to fulfill our vows (Bamidbar 30:3), and the consequences for neglecting this obligation are very serious (see Kesubos 72a). To avoid violating this prohibition, it is better to simply fulfill the mitzvah involved without reciting a vow to commit oneself (Nedarim 9a). For this reason, concerned people say “bli neder” whenever stating something that may imply a commitment to perform a good deed. The words bli neder prevent the commitment from becoming a vow, although one is still obligated to fulfill what one has promised to keep (Shu’t Shevet HaLevi 10:156:1; see also Shla’h, Torah SheBe’kesav, Parshas Matos, Derech Chayim). (In this article, I am not going to distinguish between the technical differences that exist between a neder, a vow, and a shavua, an oath; but I will refer always to neder.)

TZEDAKAH PLEDGES

Pledging money to tzedakah is a vow that one must fulfill. To quote the Torah:

Motza sifasecha tishmor ve’asisa ka’asher nadarta LaHashem Elokecha nedava asher dibarta bificha. You must be careful and fulfill that which exits your mouth, according to the vow that one recited to Hashem your G-d – anything that you spoke with your mouth (Devarim 23:24).

The Gemara rules explicitly that tzedakah is included in the requirements of this verse (Rosh HaShanah 6a). Therefore, one is required min haTorah to redeem a pledge that one made to tzedakah. Because of this law, it is strongly advisable to make charitable commitments bli neder so that the pledge does not assume the severity of a vow (Shulchan Aruch Yoreh Deah 203:4 and 257:4).

  1. BAL TE’ACHEIR Do not delay paying

This mitzvah prohibits delaying the redemption of a pledge, such as a commitment to offer a korban in the Beis HaMikdash. Reciting a charitable pledge requires one to fulfill it as soon as possible; failure to do so violates the prohibition of bal te’acheir (Devarim 23:22; Rosh HaShanah 6a). The Gemara notes that the requirements of bal te’acheir for a tzedakah pledge are even more exacting than they are concerning other mitzvos, such as korbanos. One who (at the time of the Beis HaMikdash) pledges a korban may wait until the Festivals (Pesach, Shavuos, and Sukkos) to offer them, since he will then be traveling to Yerushalayim, anyway. (Technically, he is required because of a positive mitzvah to offer the korban the first Yom Tov, but does not violate the lo saaseh until all three Yomim Tovim pass.) However, since a pledge to tzedakah can easily be fulfilled as soon as one locates a poor person, one must disburse the funds quickly.

The mitzvah of bal te’acheir provides another reason why one’s pledges to tzedakah should be made bli neder. If someone pledged tzedakah without specifying bli neder, he/she is obligated to redeem the pledge immediately. However, if one specified that the obligation is bli neder, failing to redeem it immediately does not violate bal te’acheir.

We can now address Yehudah’s concern about responding to tzedakah appeals. His question was that he felt pressured to pledge donations and was concerned that he might forget to pay them. Ideally, he should donate without pledging, or alternatively, he can say that he is pledging with the understanding that he is not making any commitment whatsoever. (Essentially, this is disallowing his pledge.) A less preferable choice is to pledge bli neder, which accomplishes that, should he forget to redeem his pledge, he will not have violated either the prohibition of vows or of bal te’acheir.

THE APPEAL WAS SUCCESSFUL, BUT THE INSTITUTION DIED!

By the way, it appears that although the organizations making appeals in Yehudah’s shul are doing a good job, they could use logistic help in recording and collecting the pledges to their cause. Any reader interested in volunteering to help them out?

BORROWING FROM TZEDAKAH FUNDS

At this point, we will address Susan’s concerns about borrowing from the pushka. Her first question was: May one borrow tzedakah’s funds for one’s personal use? The following passage of Gemara discusses this issue:

Rabbah bar Avahu stated, “Someone who declares: ‘This sela coin shall go to tzedakah,’ may use it for his own purposes, and then later pay tzedakah a different coin” (Arachin 6a, as explained by Rashi).

Rabbah bar Avahu’s is teaching that although pledging a coin to tzedakah creates a charitable vow that one must redeem, one may still borrow that coin and replace it. The reason this is true is that tzedakah does not create sanctity that forbids its use (Rambam, Hilchos Matanos Aniyim 8:5). In essence, declaring “this coin shall go to tzedakah” is equivalent to saying, “I hereby commit myself to donate to tzedakah an amount of money equal to the value of this coin.” The coin remains the donor’s, and he may borrow it and later replace it (see Shulchan Aruch Yoreh Deah 259:1).

The Gemara subsequently teaches that one may borrow the pledged coin only if it was not yet given to the gabbai, the tzedakah treasurer. Once the gabbai receives the money it is tzedakah’s property, and one may not borrow it. Under normal circumstances, a treasurer is not authorized to lend or exchange tzedakah funds (Bava Basra 8a; Rambam, Hilchos Matanos Aniyim 8:4). One exception is when the lending or exchanging benefits the recipient of the funds (Arachin 6b; see Pischei Teshuvah, Yoreh Deah 259:4 for another exception).

LIMITED LIABILITY

By the way, the sanction to borrow pledged money is also a liability, since it sometimes makes the person responsible to replace the money if it is stolen (see Choshen Mishpat 301:6). On the other hand, in a case when one may not use tzedakah money, he is not liable, unless he is negligent, such as forgetting where he put it.

WHO OWNS THE MONEY IN THE PUSHKA?

May Susan borrow from the pushka? According to what we have just learned, this depends on whether the money in the pushka already belongs to the organization or is still Susan’s property. Many authorities debated this question extensively about 150 years ago. The shaylah that spawned this literature is interesting.

HISTORICAL BACKGROUND

For the last few hundred years, many Jewish Diaspora households owned a pushka dedicated to Rabbi Meir Baal HaNes, a fund whose purpose was to succor the indigent Jews living in Eretz Yisrael. In a responsum dated Marcheshvan 18, 5626 (1865), Rav Mordechai Eitinga, then rav of Lvov (currently located in western Ukraine), was asked about someone who had accumulated a large sum of money in his Rabbi Meir Baal HaNes pushka and now felt that the local poor had a much greater need for these funds. Could he divert the money to local needs, instead of sending it to Eretz Yisrael? Rav Eitinga discusses two issues:

(1) May money pledged to one charitable cause be diverted to a different one?

(2) Do the poor of Eretz Yisrael already own the money in the pushka?

If the answer to the first question is “yes,” and to the second question is “no,” then the money may be diverted to the local indigent. Otherwise, it must be sent to Eretz Yisrael, because either the terms of the pledge must be absolutely fulfilled, or one is “stealing” money that already belongs to the poor of Eretz Yisroel (Shu’t Maamar Mordechai #15).

Let us follow his analysis.

DIVERTING OR A DIVERSION

Whether one may divert tzedakah money from one individual or organization to another is, indeed, a dispute among early poskim. Why should one be permitted to divert the funds? Explaining this approach requires that we note a new factor that the Gemara did not discuss. In Rabbah bar Avahu’s case, the donor simply declared, “This coin goes to tzedakah,” without specifying a specific individual or organization. However, what happens if someone holding a wad of hundred dollar bills declares, “I dedicate this money to the Asher Richman Hebrew Academy.” Must he contribute this amount of money to the Richman Academy, or may he afterwards decide to send them to the Pauper Yeshiva? Does halachah require him to honor a pledge to a specific organization or individual, or is he simply required to donate this amount of money to any tzedakah? If indeed the pledge is simply a generic requirement to donate this amount to tzedakah, then it should follow that one may actually contribute the funds to a charity different from what he originally intended.

13TH CENTURY CHUTZPAH

Early authorities discuss this question. A major posek of 13th century Germany reports a very unusual din Torah. A pauper claimed that a wealthy individual promised him a specific amount of money and had not paid it, whereas the rich man denied ever pledging any money. The poor man contended that the pledge obligated the donor to pay him and that the case is therefore no different from any plaintiff claiming money from a defendant who denies that he owes any. The halachah, in such instances, is that the defendant is required to swear an oath (shevuas heses) denying the claim. Similarly, the Mordechai (Bava Kamma #172) ruled that the affluent man is required to swear that he never pledged any money to the pauper! He does not report whether this pauper was subsequently offered any positions as a publicity director for any major Torah institution.

The poskim prove from this Mordechai that when one pledges money to an individual tzedakah, the particular tzedakah can demand payment. Otherwise, what claim does the pauper have on the rich man? Even assuming that the rich man pledged him money, this is merely an obligation to give tzedakah, which the affluent man may donate anywhere. If the pauper indeed has a claim, it must follow that a pledge automatically includes a debt to the specific individual. Following this line of reasoning, money pledged to one tzedakah cannot be subsequently rerouted to a different one, however legitimate the need (Shach, Choshen Mishpat 87:51; Machanei Efrayim, Hilchos Tzedakah #7).

LOCAL OR ISRAEL?

Although not all authorities accept this position of the Mordechai (cf. Shu’t Maharit #22 and #39), many later authorities do follow his ruling (Ketzos HaChoshen, 87:21). Based on this analysis, most later authorities contend that money placed in a Rabbi Meir Baal HaNes pushka may not be given instead to the local poor (Shu’t Maharya HaLevi #49; Shu’t Beis Yitzchak, Orach Chayim #21).

This allows us to answer our third question asked above: “I have a pushka in the house from an organization with which I have no contact. I would like to donate the money instead to my son’s yeshiva, to demonstrate my hakaras hatov.” The answer is that although supporting the Torah institutions that educate our children is vital, since this money is already designated for one organization, one may not transfer it to another.

PUSHKA BORROWERS ANONYMOUS

All of this does not answer Susan’s question whether she may borrow money from the pushka. Even if money pledged to one institution cannot be transferred to another, until the money becomes the property of the institution, one may borrow it, as we learned before. Thus, we need to determine whether money in the pushka is already the property of the institution or not.

Now we reach an interesting question: What is the status of money in the pushka? Do I still have some control over it, and may I, therefore, borrow it, subject to the above conditions? Or is it now the property of the tzedakah and I may not?

This halachah depends on the following: Who owns the pushka? If I own the pushka, then placing money in the pushka requires me to donate it to tzedakah, but it is not yet their property and I may borrow it. As I mentioned above, this situation may create liability for the funds, should they be stolen.

On the other hand, if the organization assumes that money placed in the pushka belongs to them, then I may not borrow any of that money. The reason for this is that since the pushka is their vessel, money placed inside is equivalent to being given to the gabbai, the tzedakah treasurer (based on Shulchan Aruch Choshen Mishpat 200:3). Most authorities follow this latter interpretation of the halachah.

HABITUAL BORROWERS

Some people are in the habit of borrowing money from the pushkas on a regular basis. Now, after reading my words, they may realize that this practice is sometimes forbidden. Nevertheless, there is a method whereby a person may put money into any pushka and yet still be able to borrow it afterwards

; he should make a condition in advance that when he puts money into the pushka, he is not donating it to the institution, but simply pledging it to them. This way, the money is not yet the property of the institution, and one may borrow it. Although this solution will not help for the money already in the pushka, it can be used to avoid this problem in the future.

Some contemporary authorities suggest that someone who usually borrows from the pushka might be considered as if he made this condition from the beginning, i.e., that he is not giving the money yet to the tzedakah cause, but only pledging it (Derech Emunah, Matanos Aniyim 7:note 121).

To answer Susan’s question, I would suggest that she make a condition, henceforth, that when she places money in the pushka, she is not donating it at this time. In so doing, she reserves the right to borrow from the pushka, although she also creates a responsibility for herself, should the money be stolen. She may decide that she is better off curbing her habit of borrowing from the pushka and make an appointment to join Borrowers Anonymous.

Making change from the pushka benefits the tzedakah which would rather not distribute, transport or deposit its money as small change, but rather in the form of bills (Tzedakah Umishpat Chapter 8, footnote 25, page 148).

Unfortunately, most people do not realize the complex shaylos that arise from shul appeals and pushkas – hopefully this article helps repair this breach. May we all always be showered with berachos for contributing generously to tzedakah!

 

Infidels and Judaism

Certainly parshas Ki Sisa provides opportunity to discuss:

Infidels and Judaism

Question #1: The Sin or the Sinner?

“Why did Chazal establish a brachah in the Shemoneh Esrei against those who reject Judaism? Aren’t we supposed to pray that sinners find their way back to Judaism?”

Question # 2: Various Infidels

“What are the differences between the Tzedukim, the Baitusim, the kara’im, and other deviant groups?”

Answer:

Antigonus ish Socho, one of our great Torah leaders, was the head of the Sanhedrin towards the beginning of the second Beis Hamikdash period, in the generation immediately following the passing of the last of the Anshei Kenesses Hagedolah. Two of his disciples, Tzadok and Baitus, misunderstood him to say that there is no reward for observing mitzvos (Avos Derabbi Nosson 5:2). In fact, what Antigonus had said was that one should not observe the Torah for the goal of receiving its reward, but because we want to serve and fear Hashem (see Avos 1:3).

Unfortunately, Tzadok and Baitus were cunning and charismatic individuals. Soon, each had amassed his own following of people who accepted them as their religious leaders in place of Chazal. Although both Tzadok and Baitus had, by now, rejected everything in the Torah, they understood that if their followers knew this, they would look for other leaders (Rambam, Commentary to Mishnah, Avos 1:3). As a result, both Tzadok and Baitus pretended to accept the Written Torah, but they rejected the Oral Torah, thus making them the deciders of what their new religions would observe. This created two splinter religious sects, called the Tzedukim and the Baitusim, each named for its founder, which became thorns in the sides of the Torah community throughout the rest of the period of the second Beis Hamikdash and the Tanna’im. At times, these groups even became violent in their attacks on halachah-observant Jewry (see Meiri, Rosh Hashanah 22a).

Although the origins of both groups were similar, they developed dissimilar practices and became two distinct groups (Tosafos Yom Tov, Menachos 10:3). Some early authorities note that there was also a divergence in style between the Tzedukim and the Baitusim. Whereas the Baitusim were brazen in disputing the halachic authorities, the Tzedukim were concerned about what the rabbonim held (Ritva, Eruvin 69b). The Gemara records instances where they followed rabbinic practice, even when it differed with what they theoretically held (Yoma 19b; Niddah 33b). The Baitusim, on the other hand, achieved notoriety for their troublemaking (see, for example, Rosh Hashanah 22a-b).

Baitusi bloopers

Notwithstanding the fact that the Baitusim behaved in a more brazen manner than did the Tzedukim, Chazal record only three instances where their official practices conflicted with halachah. They are:

  1. The Baitusim held that an individual could donate a korban tamid to be used by the community for the daily offering in the Beis Hamikdash (Megillas Taanis; Tosafos, Taanis 17b s.v. Meireish). The halachah is that these offerings, similar to all other required public offerings, must be purchased from the terumas halishkah, that is, from the half-shekel coins that each adult male Jew was required to donate annually to the Beis Hamikdash for this purpose.
  2. The Baitusim did not want the korban omer to be offered on any day of the week other than Sunday (Menachos 65a). The halachah is that it is offered on the day that we begin counting the omer, the second day of Pesach, regardless of which day of the week this transpires.
  3. The Baitusim were opposed to the observance of the mitzvah of aravah (Ritva, Sukkah 43b), a practice performed in the Beis Hamikdash every day of Sukkos (see Mishnah, Sukkah 42b and Gemara ad locum).

It is significant to note that all three of these divergent practices involved mitzvos performed in the Beis Hamikdash, and none of them impinges on how a person is required to observe his individual mitzvos. Thus, although, as we will soon see, the Tzedukim had many practices that differed from halachah, the more brazen Baitusim had fewer “official” practices that differed from halachah. I have attempted to find sources to explain the underlying reason for the Baitusim’s divergences, but I have not, as yet, found an approach I find satisfactory.

Baitusi slackness

This should not be interpreted to mean that the Baitusim were careful about the other laws. Quite the contrary, they observed all mitzvos that are not taught expressly by the written Torah in a haphazard way. For example, the Gemara states that one should presume that a Baitusi does not keep the laws of carrying on Shabbos properly (Eruvin 68b). Similarly, the rishonim state that it should be assumed that Baitusim do not observe the laws of shechitah (Meiri, Chullin 2a). This approach is codified in Shulchan Aruch (Yoreh Deah 2:9). But, it appears that these were not formal practices of the Baitusim; rather, this reflected their attitude towards Torah she’be’al peh, which they treated with disdain.

Sadducee sophistry

On the other hand, the Tzedukim seem to have followed their own code of deviant practices. For example, they practiced the laws of netilas yadayim differently from the way halachah requires (Yadayim 4:6). Similarly, they followed different rules germane to some of the laws of family purity (Niddah 33b), of inheritance (Yalkut Shimoni, Bereishis #140), of damages (Yadayim 4:7), and of jurisprudence (Sanhedrin 52b; Makkos 5b). They had occasional philosophic or religious debates with Chazal (Yadayim Chapter 4; Yalkut Shimoni, Devorim #824).

Similar to the Baitusim, the Tzedukim, also attempted to change specific practices of the Beis Hamikdash. They were opposed to the mitzvah of pouring water on the mizbei’ach on Sukkos (nissuch hamayim), since it has no explicit source in the written Torah. A more critical deviance was that they felt that the special offering of the ketores (incense) in the Kodesh Hakodoshim (the Holy of Holies) on Yom Kippur should be brought differently from the way that the halachah specifies. In their opinion, the kohein gadol should place the ketores onto the fire in the pan prior to his entering the Kodesh Hakodoshim, whereas the halachah is that he places it onto the fire after entering (Yoma 53a). This deviance of theirs was unusual, because, in this instance, the literal reading of the Torah is much closer to the halachah than it is to the Tzedukim’s practice (see Commentary of Rav Hirsch, Vayikra 16:13). To quote Rav Hirsch, “The tradition of the chachamim is in full accordance with the sense of Scripture; the Sadducean conception, however, entails a most forced reading of Scripture.” We will continue this discussion later.

Another practice in which the Tzedukim diverged from accepted practice concerned some of the preparations of the parah adumah. In this instance, Chazal went to great lengths to make it impossible for the Tzedukim’s approach to be observed. Why?

It is strictly forbidden to imply that the halachah is different from what it actually is. Since the Tzedukim denied the authenticity of Torah, we are required to emphasize the correct halachah. A great early authority, the Maharshal, proves that teaching a distortion of the Torah is forbidden to the extent that it is yeihareig ve’al ya’avor, one is required to avoid violating it to the extent that one is required to give up one’s life, if necessary to avoid such an eventuality (Yam shel Shelomoh, Bava Kama  4:9; see Shu’t Igros Moshe, Orach Chayim, II:51).

The Kara’im

Whereas the Tzedukim came into prominence during the period of the second Beis Hamikdash and the era of the Tanna’im, the Kara’im began in the period of the Geonim (the Middle Ages) in Bavel and the Fertile Crescent region. A prominent Jew named Anan ben David, descended from the royal family of Dovid Hamelech, was passed over in his bid to become the reish gelusa, or Exilarch, the political head of the Jewish community, because of concerns about his level of fear of G-d. He then proved that the concerns about him were valid, when he created a new religion that broke away from Judaism and denied the authenticity of the Torah she’be’al peh. As evidenced by the efforts expended by Rav Saadiah Gaon and others to combat it, Karaism, at one time, posed a serious threat to Jewish souls.

Kara’im versus Tzedukim

Both historically and religiously, there is no direct connection between the Tzedukim and the Kara’im. Both the Tzedukim and the Baitusim had died out centuries before the Kara’im showed up on the scene. Furthermore, the observances of the Kara’im vary tremendously from those of both the Tzedukim and the Baitusim. For example, the Tzedukim kept some form of the mitzvah of netilas yadayim, wore tefillin, and observed the laws of family purity, in a way similar to halachah. The Kara’im do not observe any of these mitzvos.

We see from the Gemara that someone could be a Tzeduki and yet observe halachah sufficiently to mislead a person to thinking that he was halachically abiding. Thus, it was necessary, at the time of the second Beis Hamikdash, to have the kohein gadol take an oath that he would follow halachah and not the Tzeduki practice, when he was in the Holy of Holies. Anyone familiar with Karaite practice quickly realizes that there is no way anyone can confuse them with halachically observant Jews.

Notwithstanding their vast dissimilarities, all three groups shared one common ground. Their primary motivation was to be free of the authority of the Torah; they decided that the only way to be one’s own boss was to reject the concept of Torah she’be’al peh. Ultimately, all three ceased to be factors of any significance for the Jewish people, the Tzedukim and the Baitusim because they disappeared, and the Kara’im because, with time, the small surviving remnants were not identified with Jews. Even Hitler did not consider the Kara’im to be Jews and excluded them from his nefarious final solution.

The Sin or the Sinner?

At this point, let us examine one of our opening questions:

“Why did Chazal establish a brachah in the Shemoneh Esrei against those who reject Judaism? Aren’t we supposed to pray that sinners find their way back to Judaism?”

Indeed, we seem to find two conflicting passages of Gemara. The first reads:

There were some biryonim, troublemakers, in Rabbi Meir’s neighborhood, who were causing him considerable distress. To end the situation, Rabbi Meir wanted to pray that they die! His wife, Beruryah, told him: “What do you think? That it is acceptable to do this, as we see from the verse: ‘Chata’im should cease from the world.’ Does the verse say that chot’im should cease from the world, which would mean that the sinners, themselves, should be destroyed? Furthermore, look at the end of the verse, which states u’resha’im od einam, and there will be no more wicked people. Instead, you should pray that they do teshuvah!” Rabbi Meir prayed that they do teshuvah, and, indeed, they did! (Brochos 10a).

According to the way Rashi explains this dispute, Rabbi Meir understood that the word chata’im should be translated as “the sinners.” However, the grammatical form of this word could be understood to mean “those who cause others to sin.” If one translates the verse this way, the way Beruryah understood the verse, it means that the evil inclination, the yetzer hora, which causes people to sin, should cease. This passage of Gemara implies that one should not pray that the evildoers cease to exist, but that they should no longer sin.

On the other hand, we find the following passage of Gemara:

Shimon Hapekoli organized the eighteen brachos (of the Shemoneh Esrei) in the correct order in the presence of Rabban Gamliel, in Yavneh. Rabban Gamliel then asked the Sages: “Is there anyone here who is able to establish a brachah against the heretics?” Shmuel Hakatan stood up and established what is now called the birchas haminim (Brochos 28b).

Here we have a passage of Gemara that teaches that Chazal added a brachah to the Shemoneh Esrei, specifically requesting that Hashem destroy the evildoers. So, do we rule according to Beruryah or not?

Two additional questions

We can actually add two other questions to this discussion. One is that the conversation between Rabbi Meir and Beruryah transpired after Rabban Gamliel and Shmuel Hakatan had added birchas haminim to the Shemoneh Esrei to destroy the evildoers, yet its existence and the related halachic discussion is not mentioned as part of the conversation between Rabbi Meir and Beruryah. Why didn’t Rabbi Meir rally birchas haminim as support for his approach that one may pray that evildoers die?

An additional question is that, historically, the Tzedukim and Baitusim began early in the period of the Beis Hamikdash, and both succeeded in annoying the gedolei Yisroel sufficiently that several takanos were instituted to combat them. For example, as mentioned above, the kohein gadol was required to recite an oath that he would follow what he had been instructed to do by the Torah leaders, because there were kohanim gedolim who were suspected of being closet Tzedukim. And during the preparation of the parah adumah, numerous extra precautions were instituted to combat a practice of the Tzedukim. Also, initially, any witness who claimed to see the new moon was accepted by Beis Din, until it was revealed that the Baitusim had hired witnesses to testify falsely about what they saw. Each of these matters required a change in procedures germane to how mitzvos were observed in the Beis Hamikdash. Obviously, both the Tzedukim and Baitusim were sources of major exasperation to Chazal.

Yet, we do not find any attempt of Chazal to add a brachah to the tefillah against either the Tzedukim or the Baitusim. The core prayer, which had been established by the Anshei Keneses Hagedolah at the beginning of the second Beis Hamikdash, remained. Only in Yavneh, approximately four hundred years after the tefillah had originally been structured, did Chazal add a new brachah against evildoers. Why did they wait until this time, rather than establish something similar to birchas haminim to combat the Tzedukim and the Baitusim?

It seems that, although Chazal needed to be concerned about the deviances of both the Tzedukim and the Baitusim, they understood that there was no need to make a permanent change in Klal Yisroel’s prayers. These deviant groups would never pose a long-term hazard to the Jewish people. And, we see how accurate Chazal were in their assessment, because both groups disappeared long ago. However, it seems that the concern of the birchas haminim was against the early Christians, who originally considered themselves part of the Jewish people, and it was based on a realization that this group would pose a long-term hazard. Remember that during its infancy, Christianity viewed itself as a branch of Judaism. To this day, Christians have tremendous difficulty explaining why Jews have so whole-heartedly rejected their religion. This is a tremendous blot on its reputation. Since Christianity was completely rejected by those who were around at the time this religion was invented, obviously, it is a forgery.

Against this backdrop, we can explain why Rabbi Meir made no reference to birchas haminim during his conversation with Beruryah. Rabbi Meir was being vexed by a local group of hooligans. The birchas haminim is not about such people, but was established to combat a permanent foe. Indeed, we see from this conversation that, under usual circumstances, one should not pray that an evil person die.

In conclusion

Above I mentioned the deviant practice espoused by the Tzedukim when they insisted that the ketores be burnt prior to the kohein gadol’s entering the Holy of Holies. In Rav Hirsch’s commentary to the Torah, he notes:

Toras Kohanim informs us of the motive of the Tzedukim to contradict the words of Scripture here. They openly put forward a plea of ‘etiquette.’ At human banquets, the incense is brought in already smoking, it is not put on the fire in the presence of the guests. How much more so should this same mannerly conduct be followed in the presence of G-d! Thus would the ancient Sadduccees bow to the idol of external etiquette – the same idol to which the modern ‘Sadduccees’ bow, and in whose name they break every law at the holiest moments of Divine worship.

“Further reflection reveals that the method of offering the ketores that was adopted by the Tzedukim had been employed, also, by Nadav and Avihu. They, too, brought their disastrous ketores offering in this manner…

“If this is correct, then we have here. again. what is so very characteristic: the Tzedukim, in their time, were the disciples of Nadav and Avihu, just as the Karaites later based themselves on all those whose opinions and teachings were rejected by the chachmei Yisroel.

“It appears further that this Sadduccean doctrine is emblematic of the whole principle of the Sadduccean deviation… for the true kohein gadol is nothing but a servant of the Will of G-d, a servant who subordinates his own subjective view. To him… only that which is pleasing to G-d is pleasing to him… The Sadduccean kohein, however, turns the altar fire into his fire and makes it an instrument for his own action… He lights the ketores in a manner that appeals to himself… and forces it on G-d’s will. That which fits his conception of rei’ach nichoach, G-d, too, will accept.

…Who knows whether this very contrast – which epitomizes the Sadduccean principle – is what led the Sadduccees to this doctrine, in blatant contradiction to the sense of Scripture!”

 

Do Clothes Make the Man?

Since this parsha discusses the special clothes worn by the kohanim, and all the melachos of Shabbos are derived from the building of the mishkan, what other week could be more appropriate to discuss the laws of wearing clothing on Shabbos?

Do Clothes Make the Man?

Question #1: The clown of town

clown“To entertain a chosson and kallah at their Shabbos sheva brachos, I want to dress in a clown suit, which includes wearing multiple hats, one atop the other. May I walk this way through an area that has no eruv?”

Question #2: Belts and braces

“May I wear a belt on Shabbos when I am already holding my pants up with suspenders?”

Question #3: Lehoniach muffler

“May I wear my talis as a scarf when I am outside an eruv?”

Question #4: Gallant garteling

“May I wear my gartel to shul on Shabbos the way I usually do?”

Introduction:

As we are aware, one of the 39 melachos of Shabbos is hotza’ah, which is transporting or, as we usually call it, carrying items through a reshus harabim, an unwalled public thoroughfare or marketplace. This melachah also prohibits moving items from a reshus harabim into a reshus hayachid, an enclosed area, or from a reshus hayachid into a reshus harabim. In other articles, I discussed how an eruv permits carrying. (These articles can be read or downloaded from RabbiKaganoff. Com under the titles An Eruv Primer and Carrying in Public and the Use of an Eruv.) This article will discuss the issues of wearing clothing and similar items on Shabbos, in a place that does not have an acceptable eruv.

Violating the melachah of carrying is not necessarily through one’s carrying the item in his hand. Walking through or into a public area with a needle pinned to one’s garment or a handkerchief in one’s pocket breaks the Torah’s proscription. It is also prohibited to have chewing gum or candy in one’s mouth while walking through a reshus harabim or between a reshus harabim and a reshus hayachid.

Although wearing clothing or jewelry is permitted, one may wear them only in a way that they are usually worn. In addition, at times Chazal prohibited wearing certain items to guarantee that a person would not mistakenly carry on Shabbos.

Permitted to carry

One may wear something that qualifies as a garment and is being worn in a normal way, even if you, yourself, do not usually wear it (Chayei Odom 56:4). For example, a rich man may wear something that he would not usually wear, because he considers it demeaning (Chayei Odom 56:4). Similarly, someone may wear earmuffs or an extra pair of socks or other garment, even when he usually does not. This is permitted even on a hot day and when the intention is to bring the extra garment for someone else (see Shulchan Aruch, Orach Chayim 301:36).

Example: Some teenagers got involved in a very non-Shabbosdik water fight, with some of the contestants now completely drenched. Yitzie, who lives nearby, may make several trips home, each time donning several layers of clothing and a few pairs of socks, in order to supply his friends with dry clothing, even though there is no eruv.

The garment district

Wearing a handkerchief around one’s neck is permitted, since it can be used this way either to provide warmth or to absorb perspiration (Mishnah Berurah 301:133, quoting Chayei Odom).

In an early ruling that sends shivers up my spine, the Rema (Orach Chayim 301:23) permits wearing Jewish “yellow circles” on Shabbos, the forerunner of the Nazi’s “Jewish stars,” even if they are not sewn fully onto the garment.

Not normal

As I mentioned above, one may wear a garment outside an eruv only in a style that is considered “usual.” However, one may not wear a garment in an atypical manner. For example, the Gemara (Shabbos 58a; 147a) teaches that wearing a talis wrapped around one’s neck like a scarf in a reshus harabim is a Torah violation, since it is not the way this garment is meant to be worn. For the same reason, the Mishnah Berurah 301:133 prohibits wrapping a handkerchief around one’s leg and walking this way in a reshus harabim. (However, see Shu’t Levushei Mordechai #133.)

Only a garment

One may not “wear” something that is not a garment, such as a box (Chayei Odom 56:4), even if it is cut out to allow you to slide your head inside.

We do not all hang together

Sometimes two “wearings” may appear to be similar, but halachah treats them in completely different ways. For example, although a woman’s wearing a necklace is an appropriate mode of dress, hanging a key on a string that one wears around one’s neck is prohibited. This is true, even if the string is tied to the key in a way that it would fall off her neck without the key. Wearing a necklace around one’s neck is an accepted way to wear jewelry. A key on a string is neither jewelry nor a garment, and therefore, it is prohibited to use this as a method of transporting a key on Shabbos.

Lo yilbash

The Torah’s mitzvah prohibiting a man from wearing a woman’s clothes and vice versa has an interesting ramification germane to the laws of carrying on Shabbos. This mitzvah applies not only to clothing, but also to ornaments and jewelry – meaning, for example, that a man is forbidden to wear jewelry that would ordinarily be worn only by a woman.

The Shabbos ramification of this question is that someone wearing ornaments inappropriate for his or her gender on Shabbos in an area without an eruv desecrates Shabbos by transporting the ornaments (Chayei Odom 56:4). Since this is not an acceptable way to wear them, it is halachically equivalent to carrying them in a reshus harabim. For this reason, a woman may not wear a talis in a reshus harabim (Chayei Odom 56:4). Perhaps this is something we should draw to the attention of the “women of the wall.”

Finding tefillin

There is an interesting ramification of this law. Suppose that someone discovers several pairs of tefillin on Shabbos, outside of an eruv, in a place where they could become ruined or treated with disrespect. Does the kedushah of the tefillin supersede the violation of carrying on Shabbos? If it does not, what can one do to save the tefillin?

The halachah is that one may not do anything that would desecrate Shabbos to save the tefillin. Nevertheless, although it is usually forbidden to wear tefillin on Shabbos, they are still considered ornaments that men wear. And, since the halachah is that there is sufficient room on one’s head and arm to wear two pairs of tefillin simultaneously, it is permitted to wear two pairs of tefillin. Therefore, a man who finds these tefillin can put on two pairs at a time, two pairs of tefillin shel yad on his arm, and two pairs of tefillin shel rosh on his head, bring the tefillin to a secure place, and then return for more (Eruvin 95). (We should note that some authorities permit wearing two pairs at a time only when they are fairly small.) However, since women do not wear tefillin, they are not considered an ornament for them, and they may not wear even one (Chayei Odom 56:4).

Tafeil parts of a garment

When wearing a garment, one does not need to remove a part of the garment that is not being used at the moment, even when this can be done easily. For example, the Biur Halachah (s.v. Shedarko) permits walking through a reshus harabim while wearing a garment that has pockets, provided that they are empty. Although we are all familiar with this law (I am unaware of anyone who wears pocket-less shirts and slacks on Shabbos), we should stop and ask why it is true. After all, pockets provide no warmth or any other clothing-related benefit – why are they considered clothing, rather than small “backpacks” that happen to be attached to clothing?

The answer is that when wearing a garment in a way that it is usually worn, one need not be concerned about the tafeil, or secondary, parts of the garment. Halachah views the tafeil parts as having no consequence – any significance they have is lost to the garment. For the same reason, one does not need to remove the hood of a garment, even when it is attached by a zipper or buttons and can be easily removed (see Biur Halachah). Similarly, one may drape a coat over one’s shoulders, even though he is not “wearing” the sleeves (Shemiras Shabbos Kehilchasah). The pockets, hood and sleeves are all considered parts of the garment, even when they are not being used.

Tafeil parts of a garment also include such items as stray threads on a garment, whether partially attached or not. Since no one saves them, they are rendered insignificant.

Embellishments

Another type of tafeil part of a garment is something that enhances it aesthetically, such as decorations. For example, one may wear bells that have been woven onto one’s clothing as ornaments (Mishnah, Shabbos 66b, as understood by the Shulchan Aruch, Orach Chayim 301:23).

Not tafeil

To sum up: something is considered part of a garment when it is either (1) insignificant on its own (2) it decorates the garment or (3) it is functionally part of the garment. However, there are items connected to the garment that are certainly not tafeil. Even sewing something onto one’s clothes permits carrying it only when it is an item that is usually worn on that garment (Rema, Orach Chayim 301:23). For example, shirts often have spare buttons attached to them to be used as replacements, should the originals get lost. Some authorities rule that these extra buttons are significant, because the intent is to save them, in case they are ever needed. At the same time, their attachment to the garment does not service the garment or the wearer, since they are not doing anything functional for the shirt, nor are they decorative. Therefore, some authorities require that one remove these buttons from the garment before wearing it in a reshus harabim. On the other hand, other authorities contend that these extra buttons are not considered important and that one does not need to remove them (Shu’t Rivevos Efrayim, 4:87).

Hanging your jacket

Should the cloth loop used for hanging one’s jacket become torn, this often creates a problem in wearing this garment outside of an eruv. Allow me to explain. As long as the loop is not torn, it is tafeil to the jacket, since it has a functional purpose — to hang the jacket on a hook. The halachic problem is when one side of the loop tears, yet the loop remains attached to the garment. This loop is still considered important, since one intends to sew it back into place, so that it can again be used. Yet, the loop is no longer functional, and it serves no aesthetic purpose. Thus, the loop is no longer included in any of the three categories whereby it could be tafeil to the jacket. As a result, wearing the jacket in an area without an eruv will be a problem, since the loop is now being carried (Chayei Odom).

Should the loop tear in a way that it cannot be resewn into the garment, one may wear the garment outside an eruv, since, in this situation, the remnants of the loop have no significance, and they are therefore tafeil to the garment. It is also permitted if one does not intend to use the loop, but to throw it away and use something else to replace it.

Not decorative

We learned above that one may wear a decorative item that lies upon or attaches to a garment. However, this is permitted only when the attached item is indeed decorative. One may not wear a pin in one’s clothes, unless it is either decorative or it is being used in a functional way, such as being used instead of a button (Chayei Odom 56:2). As I mentioned above, it is therefore forbidden to go outside an eruv with a house key attached to one’s clothes with a safety pin, since this does not enhance the garments aesthetically. I will soon discuss other possible options of what one may do.

Two belts

I mentioned earlier that one may wear two or more of the same garment, even though one usually does not. There is a dispute among authorities whether this is true regarding wearing two belts. Based on different ways of understanding a passage of Gemara (Shabbos 59b), the rishonim disagree as to whether one may wear two belts, one on top of the other. The dispute is whether it is considered normative for someone to wear two belts in this way. The Shulchan Aruch (Orach Chayim 301:36) concludes that this is permitted, whereas the Rema prohibits it; the latter is the accepted practice of Ashkenazim. This is prohibited, even when the two belts are not placed one directly on top of the other, but one is placed somewhat higher than the other, as long as they are both holding tight the same garment (Minchas Shabbos 84:20).

Nevertheless, the Magen Avraham concludes that where the two belts are accomplishing different things, such as, where one is attached to a garment above and therefore functions more like suspenders than a belt, that it is permitted. Similarly, the Pri Megadim (Mishbetzos Zahav 301:25) permits two belts, one on top of the other, when there is a practical reason to wear them this way, such as the inside belt is not aesthetic but is functional, and the outer belt is attractive; or when the two belts are worn so that they lift up one’s garments to prevent them from getting dirty (Mishnah Berurah 301:134).

Gartels

Rav Moshe Feinstein forbids wearing a gartel in the street on Shabbos on top of one’s shirt or slacks, if one is already wearing a belt, since this is considered to be wearing two belts, one on top of the other. It is, similarly, forbidden to wear the gartel over a tie, since this is not a normal way of keeping a tie in place (Shu’t Igros Moshe, Orach Chayim 2:76). It is permitted to wear the gartel on top of one’s jacket, so that it functions as a type of a belt holding the jacket in place.

Wearing two hats

May one wear two hats? Some early authorities prohibit wearing two hats on Shabbos, unless the hats are of a type that people occasionally wear one atop the other (Machatzis Hashekel 301:49). Similarly, we find those who forbid wearing two yarmulkas, one atop the other (Minchas Shabbos 84:19). So, although people say that “they wear two hats,” they should be careful how they do it on Shabbos.

A rain cover

May one wear a raincover on one’s hat on Shabbos? Many authorities prohibit this, since it is not to protect your body, but your hat (see Chayei Odom 56:4). Thus, it does not serve a clothing purpose, and it is also not an ornament. Some authorities draw a distinction between raincovers used by men to cover their hats, which they prohibit, and the rainbonnets worn by women, which, although they are also used to protect sheitelach, also protect the wearer. They rally evidence that this is so, since they are also used by single women, which demonstrates that its primary purpose is to protect the wearer, not the hat or sheitel (Kitzur Hilchos Shabbos).

Shabbos keys

Is there any permitted way to transport keys through a public area on Shabbos?

The basic question here is that the key is not a garment and one is permitted, on Shabbos, to wear only a garment or an ornament. Many authorities permit making the key into a proper ornament, but, to do this, it must be made of silver and have the appearance of something that one would wear as jewelry (Shulchan Aruch, Orach Chayim 301:11 and Mishnah Berurah 42; Chayei Odom 56:3. It should be noted that although the Shulchan Aruch cites the lenient opinion in this dispute, he rules that this last suggestion is prohibited.) The other option is to make the key a functional part of a garment, such as by using it as the prong of the belt, which is the part that one inserts into the holes when buckling (Mishnah Berurah 301:45; Shu’t Minchas Yitzchok 4:33).

Walking stick

One of the more difficult problems to resolve is that of an older person, who usually walks outdoors with a cane or walking stick, but can walk without it. The halachah is that someone who cannot walk at all unassisted may use a cane (Chayei Odom). However, if one can walk without the stick, even only at home, the Kitzur Shulchan Aruch (84:5) prohibits him from using a cane on Shabbos in an area without an eruv.

Conclusion

The Navi Yirmiyohu (17:19-27) was concerned about carrying on Shabbos; it is a melachah like any other, yet people mistakenly think that it is not important. Indeed, we would not usually define transporting something as changing something functionally, which is what most melachos accomplish.

Rav Hirsch (Shemos 35:2) explains that whereas other melachos demonstrate man’s mastery over the physical world, carrying demonstrates his mastery over the social sphere. The actions that show the responsibility of the individual to the community and vice versa are often acts of hotza’ah. Thus, the prohibition to carry on Shabbos is to demonstrate man’s subordination to Hashem regarding his role and position in his social and national life.

 

Wanted Dead or Alive

In honor of Parashas Terumah and the Construction of the Mishkan…

Wanted Dead or Alive

bug trapQuestion #1: Getting Rid of those Bugs!

“May I trap or kill mosquitoes, bees, or wasps on Shabbos?”

Question #2: Hanging from the Lowest Tree

“I forgot to hang flypaper before Shabbos. May I do it on Shabbos?”

Question #3: A Charming Shabbos

“May a snake charmer work on Shabbos?”

Answer: Catching or dispatching

We have all been in the following uncomfortable situation. Some time during Shabbos, a mosquito appears in our vicinity, seeking to earn its living. Although we realize that this creature requires its sustenance, we are not eager that we, our children, or our guests should become mosquito fodder, even just as a minor donation. Are we permitted to trap or kill the mosquito? Trapping living things, tzad, was an action necessary for acquiring some of the materials used to build the Mishkan, and is one of the 39 melachos, categories of prohibited activity on Shabbos (Mishnah Shabbos 73a and Rashi ad loc.). Killing living things also violates the melachos of Shabbos, but space constraints will require that we leave this discussion for a different time. We will use this opportunity to discuss many pertinent principles of Shabbos and some details of the melachah of tzad.

Shabbos nomenclature

When discussing what one may or may not do on Shabbos, the Mishnah and Gemara use three terms: (1) chayov, punishable, when a particular act constitutes melachah, meaning that it desecrates Shabbos by violating a Torah law; (2) patur, exempt, meaning it does not violate a Torah law, and (3) mutar, permitted, when an act may be performed on Shabbos. We will discuss the middle term, patur, which states that a particular act does not violate Torah law, since this usually indicates something prohibited due to rabbinic sanction. Even though the word patur usually implies an act prohibited by rabbinic law, sometimes the Sages permitted it. But what makes performing a forbidden activity patur?

Meleches machsheves

The Gemara (Chagigah 10b; Bava Kama 26b; Kerisus 19b) teaches that the Torah prohibited only something that can be categorized as meleches machsheves, which can perhaps be translated as premeditated melachah. An obvious example of meleches machsheves would be trapping an animal to obtain its hide or meat. Similarly, someone who digs a hole to plant the base of a tree violates the meleches machsheves of choreish, ploughing, and one who picks a fruit performs a meleches machsheves of kotzeir, harvesting.

Meleches machsheves is often explained by what it is not. Following that approach, I will provide three categories of labor that are exempt from being defined as desecrating Shabbos min hatorah, because they do not qualify as meleches machsheves, at least according to some opinions.

Mekalkeil

In general, an act constitutes meleches machsheves only when its direct result is beneficial. This means that an action that is inherently destructive does not violate Shabbos min hatorah, even when one needs the result. For example, digging a hole in the ground, which one does not need, in order to obtain earth is defined as a destructive activity and prohibited only miderabbanan. The dug hole itself is a negative development, which renders the burrowing an act of mekalkeil, not prohibited min hatorah, but only because of rabbinic injunction. However, digging a hole to plant or to create a posthole results in a positive benefit and is indeed prohibited min hatorah, since one wants the hole in the ground.

Bemino nitzad

Here is a second example of meleches machsheves that is particular to the melachah that we are discussing, tzad. The tanna’im (Shabbos107b) dispute whether it is prohibited min hatorah to ensnare a creature that mankind does not typically use, such as a scorpion or a flea, which is called ein bemino nitzad, literally, a species that is not trapped. The halachic conclusion follows the lenient opinion, ruling that tzad applies min hatorah only to a species that is bemino nitzad, commonly trapped, so that mankind can benefit from it. For example, a species that is eaten, from whose body a medicine is extracted, or whose hide is used as leather qualifies as bemino nitzad. The halachic authorities discuss whether trapping an animal for scientific research or so that one can have it as a pet makes the animal into bemino nitzad (Rambam, Hilchos Shabbos 10:21; Chazon Ish, Orach Chayim 50:4 at end).

However, a species that is caught only because it is an annoyance has the status of ein bemino nitzad.

Why is this true? The purpose of trapping is to harness a living creature, so that mankind can use it. Thus, tzad is a type of acquisition (see Shu’t Avnei Neizer, Orach Chayim 189:7; however, see Biur Halachah, 316:2 s.v. Oh Choleh, who might disagree with this analysis.) However, trapping creatures that mankind does not generally use, such as scorpions or fleas, is not an act of acquiring these creatures, but of distancing them from victims that they may harm. Therefore, most opinions conclude that trapping a species that is ein bemino nitzad does not violate the melachah of tzad, and is prohibited only because of rabbinic injunction. Thus, since flies are ein bemino nitzad, catching them would not violate a Torah prohibition. Hanging flypaper on Shabbos would still involve a rabbinic prohibition, and it is similarly prohibited to set up a mousetrap on Shabbos (Magen Avraham 316:9; see Piskei Tosafos, Shabbos 17b #62).

By the way, many authorities consider mice to be bemino nitzad, since there are places in the world where their hide is used (Chayei Odom 30:7). There is also a dispute whether a non-kosher species that is harvested as food for non-Jewish consumption is considered bemino nitzad (Ritva, Shabbos 106b; Nimla Tal, Meleches Tzad #37).

Melachah she’einah tzerichah legufah

Many authorities rule that another category of activity is not prohibited min hatorah, because it is not considered meleches machsheves. There is a dispute among tanna’im whether a melachah she’einah tzerichah legufah, literally, an act not needed for its purpose, is prohibited min hatorah or only miderabbanan. Whereas Rabbi Yehudah contends that melachah she’einah tzerichah legufah is prohibited min hatorah, according to Rabbi Shimon, these acts are prohibited only by virtue of rabbinic injunction. Let me explain.

What is a melachah she’einah tzerichah legufah? Among the rishonim, we find differing opinions how to define and even how to translate this term, and there are many instances where a dispute in halachah results. Since this complicated question is a bit tangential to our topic, I am going to present only one approach. According to Tosafos (Shabbos 94a s.v. Rabbi Shimon) and the Rivash (Shu’t Harivash #394), Rabbi Shimon contends that the 39 melachos are prohibited min hatorah only when performed for a goal or purpose similar to the reason why this melachah was done when constructing the Mishkan. Performing a melachah to accomplish a purpose other than that for which this melachah was performed in the Mishkan qualifies as a melachah she’einah tzerichah legufah. This means that it is prohibited only miderabbanan, according to Rabbi Shimon and those who rule like him.

Here is an explanatory example: Removing an item that has a bad odor from a reshus hayachid, an enclosed area, into a reshus harabim, an open area meant for public use, is a classic case of melachah she’einah tzerichah legufah. Although moving something from a reshus hayachid into a reshus harabim constitutes the melachah of carrying, moving the foul-smelling item from a house to a reshus harabim does not constitute a melachah min hatorah, according to Rabbi Shimon, because the purpose of the carrying when building the Mishkan was to move the item being carried to a new location. However, when removing a foul-smelling item, there is no significance attached to the place to which the item is moved; one’s only goal is to distance it from its current location. The public area does not constitute the goal of one’s act, but, rather, a convenient place to dump unwanted material. For this reason, Rabbi Shimon contends that this act was not prohibited by the Torah, but only by the Sages. On the other hand, Rabbi Yehudah considers melachah she’einah tzerichah legufah to fulfill the definition of meleches machsheves and therefore prohibited min hatorah.

Although most rishonim conclude that the halachah follows Rabbi Shimon that melachah she’einah tzerichah legufah is prohibited only because of rabbinic injunction, the Rambam and others rule, according to Rabbi Yehudah, that melachah she’einah tzerichah legufah is prohibited min hatorah.

When exempt is permitted

There is a passage of Gemara that reflects both on our opening question and on a different aspect of the melachah of tzad. “Shmuel said: Whenever the Mishnah states that something is patur when performed on Shabbos, the activity is prohibited [because of a rabbinic injunction], with the exception of the following three instances, where patur means that the activity is permitted. The first case is catching a deer, the second is catching a snake and the third is lancing a boil” (Shabbos 3a; 107a, as explained by Tosafos, Shabbos 3a s.v. Bar). Shmuel proves from Mishnayos that, in these three instances, the acts are permitted (Shabbos 107a). The first two of these cases educate us to understand what constitutes the melachah of trapping. (The case of lancing a boil involves a different topic that we will leave for a future article.)

What are the first two cases presented by Shmuel? The first situation is when a deer entered a building and someone sat in the doorway of the building, thereby preventing the deer’s escape. When that person sat down, he trapped the deer and therefore performed the melachah of tzad. This is true, even if he was not involved in coaxing the deer into the building. The Mishnah (Shabbos 106b) then states that if a second person sits alongside the first in a way that the deer’s escape is still blocked, even when the first person gets up, the second person has not desecrated Shabbos. This is because the second person did not trap the deer but merely guaranteed that a captured animal remain in captivity. Although the Mishnah says that the second person is patur, Shmuel explains that one may lechatchilah sit down alongside the first person, even if one’s intention is to keep the deer trapped when the first person gets up. This explains a different aspect of tzad — the melachah is making the animal available for human use; once it is already trapped, there is no further violation in maintaining it under human control.

The second case is based on two different mishnayos. One Mishnah (Shabbos 107a) permits catching a scorpion so that it doesn’t bite, and another states that catching a snake to prevent it from biting does not violate Shabbos min hatorah, whereas catching it for medicinal use does (Eduyos 2:5). Tosafos proves that both Mishnayos that permit tzad to protect someone are discussing creatures whose bite is painful, but not life-threatening, pikuach nefesh (Tosafos, Shabbos 3a s.v. Bar). Were the Mishnah discussing a creature whose bite is life-threatening, it would be obvious that one may kill it, because of the general rule that actions necessary to protect life supersede Shabbos and almost all other mitzvos.

Shmuel ruled that although catching non-dangerous creatures is ordinarily prohibited on Shabbos, since this involves only a rabbinic injunction, the Sages permitted it under extenuating circumstances.

Why is this considered only a rabbinic injunction? We have already presented two possible reasons. The first is because of the principle of melachah she’einah tzerichah legufah, since one has no interest in capturing a snake or a scorpion (Tosafos op. cit.). The second reason is that one is not catching these species to make them available for human use, which is an essential component of the melachah of tzad (Avnei Neizer, Orach Chayim 189:7; see Biur Halachah, 316:2 s.v. Oh Choleh).

Mosquitoes versus snakes

Although we have discovered that one may catch snakes and scorpions that are not life-threatening, this does not tell us whether one may trap mosquitoes, bees or wasps. Although the sting or bite of these species is indeed painful, it is not usually as painful as a snake or scorpion bite. Thus, it might be that Chazal did not permit catching mosquitoes, bees or wasps.

Based on the following passage of Gemara, we can presumably prove the correct answer to this question:

“Someone who trapped a flea on Shabbos — Rabbi Eliezer rules that he is liable for desecrating Shabbos min hatorah, whereas Rabbi Yehoshua rules that his desecration of Shabbos violates only a rabbinic ordinance” (Shabbos 107b). The Gemara explains that this dispute is dependent on an issue that we discussed earlier — Does one desecrate Shabbos min hatorah if he traps a species that is not usually trapped? Rabbi Eliezer rules that he does, whereas Rabbi Yehoshua rules that he does not. Thus, it appears from this Gemara that although Shmuel proved that it is permitted to trap a scorpion, even of the non-deadly variety, one cannot trap a flea, which only causes discomfort.

Three types of varments

We can, therefore, divide the different types of unpleasant biters and stingers into three categories:

  1. Those that are potentially life-threatening to people. In this instance, if there is even the slightest possibility of danger, one may kill or catch them on Shabbos.
  2. Those whose bite is very painful, but does not present any life-threatening danger. These may be trapped on Shabbos, provided that one’s intent is to save people from harm (Rambam, Hilchos Shabbos 10:25). However, it is forbidden to trap if one intends to use the insect, reptile or arachnid. (Modern biology categorizes spiders and scorpions as arachnids, because they have eight legs, are carnivorous and are wingless. If we want to categorize insects and arachnids together, we should use the word arthropods, but that still excludes snakes and other reptiles. So, for most of this article, I have simply used the word creatures. My apologies to the scientists reading this.)
  3. Those whose bite will be unpleasant, but not highly painful. In this instance, there is a dispute among the rishonim. Tosafos and the Rosh (ad loc.) quote from an earlier baal Tosafos, named Rav Poras, that if one sees that an insect may bite him, he is permitted to catch the insect so that he can remove it. When the insect is not so close to him, he may brush the insect off, but he may not trap it.

Not all authorities accepted Rabbi Poras’s approach. The Mordechai (#402) quotes Rav Yehudah Gaon that he noticed that the “elder rabbis” did not trap fleas, even when the fleas were on their skin. The Beis Yosef, however, contends that even Rav Yehudah Gaon accepts the ruling of Rabbi Poras, but that he himself practiced this as a personal chumrah, not as the required halachah that he would rule for others. There are other rishonim, however, who disagree with Rabbi Poras and prohibit trapping mosquitoes, even when they are on someone’s skin, since they are only a discomfort and not dangerous (Meiri, Shabbos 107b).

Consensus

The consensus of halachic authorities follows Rabbi Poras, although there is a dispute among them whether it is permitted to catch the insect only when it is actually biting (Shulchan Aruch, Orach Chayim 316:9; Bach) or whether one may remove the insects even when they are in close proximity (Taz 316:8; Magen Avraham 316:18; Elyah Rabbah). The Mishnah Berurah (316:37) concludes that when one can brush off the insect, he should not rely on the heter of trapping it, but he implies that one may trap the insect if brushing it off will not suffice.

Answers

At this point, let us take a fresh look at some of our original questions:

“May I trap mosquitoes, bees, or wasps on Shabbos?”

The answer is that if the insect is about to attack someone, one may trap it. One may also trap it if its sting or bite is very painful, and certainly if it is potentially dangerous.

“May a snake charmer work on Shabbos?” If one is not intending to use the snake, it is permitted. This is all the more so if the snake is dangerous.

In conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos to ensure that Shabbos is a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. We certainly see this idea borne out by the ideas of meleches machsheves, which denote the purpose of the action, and have no correlation at all to the amount of energy expended. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by our refraining from our own creative acts (Rav Samson Raphael Hirsch Commentary to Shemos 20:11).

 

An Unusual Haftarah – That 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.