Question #1: A CANDID QUESTION!

Chayim calls me on the phone:

“Prior to our marriage, I was taught that one may open cans on Shabbos, provided one does not reuse the can, whereas my wife was taught that this is strictly forbidden. Since I was taught by someone very knowledgeable and observant, there is something inconsistent here that I would like to understand.”

Question #2: DON’T PULL THE RING!

“I was eating at someone’s house for Shabbos where they served soda in cans and opened them. I thought that this desecrates Shabbos, and was uncertain whether I could trust their kashrus. Could I?”

Answer:

Analyzing the laws of Shabbos properly is a very enriching experience. In this article, I will touch on some aspects of the following melachos germane to the issues involved:

(1) Boneh, Construction

(2) Soseir, Destruction

(3) Makeh Bepatish, literally, striking with a hammer

We also need to explain an important principle of the Shabbos laws called mekalkeil – literally, ruining. In general, a melachah activity is prohibited min haTorah only when the direct results are beneficial. An act whose direct result is destructive is not prohibited min haTorah but only miderabbanan. For example, digging a hole in the ground when one needs the earth but is not interested in the hole is considered a destructive activity and therefore prohibited only miderabbanan.  The need to acquire dirt notwithstanding, the dug hole that results is not a positive development, but a negative one. This renders the burrowing mekalkeil and relegates it to a rabbinically prohibited activity. However, digging a hole to plant or to create a posthole is a positive benefit and therefore prohibited min haTorah.

In a similar vein, smashing a barrel to obtain its contents is prohibited only miderabbanan, regardless of the need to obtain the food inside, since the smashed barrel is a negative result.

Boneh

The Torah violation of Boneh includes performing any type of home repair or enhancement, even only a minor repair (Shabbos 102b). Thus, it is prohibited min haTorah to hammer a nail into a wall in order to hang a picture (Rashi, Eruvin 102a s.v. Halachah). Similarly, one may not smooth the dirt floor of a house, because this enhances the “structure” (Shabbos 73b).

Constructing Movable Items

Does the melachah of Boneh apply only to items connected to the ground, or does it also apply to the construction of implements and other movable items?

My desktop dictionary defines “construct” as “to build or form by putting together parts.” Clearly, in English “construct” includes manufacturing implements, just as it includes building on the ground. Do the laws of Shabbos similarly recognize that assembling implements violates this melachah?

The Gemara (Beitzah 10a) cites a debate regarding this question. In halachic conclusion, we find the following basic approaches:

(1) The melachah of Boneh includes only building on the ground and does not include movable items (Rashi, Shabbos 47a s.v. Chayov; Beitzah 11b s.v. De’ein).

(2) Major construction of small movable items is prohibited min haTorah, but minor improvement is not (Tosafos, Shabbos 74b and 102b). What is considered “major construction”? Assembling something in a way that involves strength and skill constitutes Boneh. Therefore, manufacturing implements is prohibited min haTorah, since it involves both strength and skill to do the job properly, whereas making a minor repair to an implement is not included under Boneh.

Large = Connected

According to many authorities, there is another factor to consider: the size of the movable item (Rashi, Eruvin 35a s.v. Umasnisin). In their opinion, one may not perform even a minor repair or enhancement to a utensil so large that one does not usually move it when it is full to capacity. Thus, even a small repair to a refrigerator or a bookcase is prohibited min haTorah according to this opinion, since an item this large is halachically equivalent to something attached to the ground.

Soseir

Soseir, demolishing or razing, is also one of the 39 melachos, since the Jewish people disassembled the Mishkan whenever they moved it from place to place (Shabbos 31b).

Thus, removing something from a structure, such as removing a nail from a wall, or lifting a window or door off its hinges, is prohibited on Shabbos.

Destructive is Constructive?

Many acts of Soseir ruin something, and according to the rule of mekalkeil mentioned above, are prohibited only miderabbanan. Of course, this leads us to ask:

How can Soseir be prohibited min haTorah as one of the 39 melachos; is not demolishing always a destructive act? The answer is that Soseir is prohibited min haTorah when the destruction is constructive, despite the apparent contradiction in terms. The disassembly of the Mishkan was an act of demolition, yet it was constructive, since Hashem wanted the Mishkan (and the Jewish people) to move to a new location. Similarly, demolition of a building is prohibited min haTorah, if the ultimate results are beneficial, such as razing part of a building in order to renovate it, or razing a building in order to build anew on the site. In such cases, the demolition provides an immediate benefit, since it clears the site for the new construction.

In cases where there are no immediate benefits from the demolition, it is still prohibited miderabbanan. Thus, wrecking a house to save someone trapped inside does not involve a Torah prohibition of Soseir, since the act is itself destructive. (The activity is, of course, permitted in any case, because of the life-threatening situation involved.)

The authorities dispute whether someone who destroys something out of anger violates Shabbos min haTorah or only miderabbanan. According to most Rishonim, this incurs only a rabbinic desecration of Shabbos, since there is no positive benefit from the destruction (Pri Megadim 314:11 in Eishel Avraham). Of course, this act is prohibited for a variety of reasons, including bal tashchis (unnecessary destruction) and damaging one’s character development (Shabbos 105b). There is a minority opinion of the Rambam, who holds that wrecking something out of anger incurs a Shabbos violation min haTorah. He rules that performing an act that makes its perpetrator feel better incurs a Torah violation and is not considered mekalkeil, even though the act is extremely damaging both to the object of his wrath and to himself.

Does Soseir apply to Portable Implements?

Having established that Soseir is prohibited min haTorah only when it creates a direct positive result, we now want to understand whether destroying a vessel is included under the melachah of Soseir. Note that I discussed earlier whether the melachah of Boneh applies only to items connected to the ground, or whether it also applies to the construction of movable items. I noted that the Gemara debates this issue, and that the Rishonim provide the following conclusions:

1. Some contend that the melachah of Boneh includes only building on the ground.

2. Others contend that major construction of small movable items is prohibited min haTorah, but a minor improvement is not.

3. Many authorities contend that this previous dispute refers only to small, easy to move implements, but that a large implement is definitely included min haTorah within the melachah of Boneh, even to perform a minor repair or enhancement.

Since Soseir is the opposite of Boneh, if constructing an item constitutes Boneh, according to the opinions above, then destroying it is Soseir.

Makeh Bepatish

Before we analyze the Gemara texts that impact on our original questions, we still need to discuss one other prohibition: the melachah of Makeh Bepatish, which includes a general prohibition of completing items, such as smoothing a surface to finish an item. One aspect of this melachah is that it prohibits making a nice opening in a vessel, such as boring an outlet hole in a storage drum (Shabbos 146a; Rambam, Hilchos Shabbos 10:16). The Gemara teaches that it is prohibited min haTorah to make an opening that is to be used in both directions, whereas making an opening to be used only in one direction is prohibited miderabbanan. As an example of the first type of opening, the Gemara mentions an opening made in a chicken coop, which allows ventilation of its fumes and also allows light and/or air into the coop. Boring an outlet hole in a storage drum, the case I just mentioned above, is a classic example of something prohibited only miderabbanan, since the opening is intended only to remove the product, but not to return it to the vessel. However, creating a new opening that is meant both to remove and return product incurs a Torah prohibition.

The Can Opener

With the principles we have learned, we can now examine the Talmudic sources that directly affect our original questions: May one open a can or other package on Shabbos to obtain its contents?

The Mishnah (Shabbos 146a) permits smashing open a barrel of figs on Shabbos to reach the food inside, provided one does not try to make a proper opening. As I noted earlier, attempting to make a proper opening certainly desecrates Shabbos. The question is whether one can simply break the barrel to reach its figs without attempting to make a nice opening. This Mishnah states that this is permitted.

However, in another discussion (Eruvin 34b) the Gemara rules that one cannot break open a container to obtain the food inside. Since manufacturing a proper vessel, even a small one, is prohibited min haTorah, smashing it remains prohibited even when one is smashing the vessel to obtain food. Although I explained above that this act is mekalkeil and therefore not prohibited min haTorah, it is still prohibited miderabbanan.

If so, how can the Mishnah permit smashing a barrel to obtain its contents?

There are two major approaches to answer this question. Tosafos explains that the Mishnah that permits smashing to obtain food is not referring to a proper vessel, but to one that was previously smashed and then feebly repaired by use of resin as glue. Reconstructing this type of container, known in Aramaic as a mustaki, would not violate a Torah violation of Boneh since it is not considered a proper vessel. As a result, smashing this barrel does not really violate Soseir, and therefore, one may do so in order to obtain the figs. However, the Gemara in Eruvin is dealing with a regular vessel and therefore forbids smashing the vessel to obtain the food inside. This approach of Tosafos is followed by the Shulchan Aruch (Orach Chayim 314:1), who concludes that one may smash open a mustaki to obtain food on Shabbos, but not a proper vessel.

Other authorities distinguish between the two cases in a different way and therefore reach a different halachic conclusion. In their opinion, the Mishnah in Shabbos is describing a small vessel (as defined above) and the Gemara in Eruvin a large one. They conclude that in order to enhance the pleasures of Shabbos, Chazal permitted smashing a small vessel to obtain food, but they prohibited smashing a large vessel. According to this approach, one may smash open any “small” container on Shabbos in order to obtain its contents.

How do we Rule?

The Mishnah Berurah concludes that it is prohibited to smash open even a small vessel to obtain food on Shabbos, following the conclusion of the Shulchan Aruch (Bi’ur Halachah 314:1). Other authorities rule that one should not admonish those who smash vessels to obtain their contents, since this common practice is based on a bona fide opinion (Aruch Hashulchan 314:8). All agree that one may not open the container in a way that creates a nice opening.

However, this approach does not satisfactorily explain those who permit opening cans on Shabbos, since neither of these opinions permits being mekalkeil to obtain food on Shabbos. They only dispute whether one should correct those who do smash small vessels. Is there any basis for those who allow the opening of cans on Shabbos?

Enter Chosalos

There is another basis to permit opening packaging on Shabbos. The Gemara mentions a halachah of chosalos, which are a type of basket made of palm branches (also known as lulavim) in which one places unripe dates to ripen or where one stores dried figs. The Gemara rules that one may rip these chosalos open on Shabbos. The question is why this is not considered destroying a vessel, which we concluded before is prohibited, at least lechatchilah.

The Kolbo explains that chosalos are considered an artificial peel or shell around the dates or figs. The rationale is that the chosal is tafeil, secondary, to the food it contains and therefore it is not considered to be a vessel. Just as one may remove the natural peel or shell of a fruit on Shabbos and it is certainly not making or destroying a vessel, so one may remove an artificial “peel” or “shell” on Shabbos. Thus, anything included under the heading of chosalos may be opened on Shabbos. The Magen Avraham states that the permission to open chosalos does not permit the breaking of a regular vessel.

Can our contemporary packaging be compared to the law of chosalos? To answer this we need to have a clear definition of what defines a regular vessel and what defines chosalos.

Opening Cans

In a lengthy teshuvah on the subject, Rav Moshe Feinstein defines a chosal as any item that is not reused for any other product; everyone disposes of the chosal once its product is used up. A “regular” vessel is one that people reuse for another product. According to this definition of a chosal, even a tin can is a chosal, if everyone disposes of the can after finishing the original contents, and certainly if everyone disposes of the can immediately after opening it. Following this analysis, opening cans on Shabbos does not violate the melachos of Shabbos, since tin cans are not reused for other products. (In Rav Moshe’s teshuvah on the subject, he implies that this halachah is true, even if one returns the original product to the chosal.) Rav Moshe himself concludes at the end of his teshuvah that one should open these packages before Shabbos, explaining that people might misunderstand the laws and mistakenly open packaging that is prohibited. However, in the case of someone who made a sheva berachos or who invited guests and finds, to his embarrassment, that he does not have enough food to serve, he permits having a gentile open the cans and other containers on Shabbos (Shu’t Igros Moshe 1:122; for a similar approach, see Shu’t Chelkas Yaakov 3:8).

On the other hand, other authorities contend that any strong vessel is not considered a chosal.

We must note that in another responsum, Rav Moshe rules that one may not open a milk or juice carton on Shabbos, since this creates a spout (Shu’t Igros Moshe, Orach Chayim 4:78). Why is this not similar to opening a chosal, which Rav Moshe permits? It seems that although he permits opening a chosal on Shabbos, he does not permit opening it in a way that forms a nice opening. (By the way, we should note that, according to what I have just explained, Rav Moshe would prohibit opening cans with pull up rings  since pulling the lid off forms a nice opening.)

Soda Cans

Rav Shelomoh Zalman Auerbach permits opening soda cans on Shabbos (Shulchan Shelomoh 314:7:4). He makes no mention of the concerns voiced in Rav Moshe’s closing paragraphs (that people might err and exceed the perimeters of his leniency) and therefore concludes that even Jews may open them on Shabbos.

On the other hand, the Chazon Ish (Orach Chayim 51:13) contends that opening any cans violates the Torah prohibition of making an opening. He explains two different reasons why opening cans is prohibited min haTorah:

1. The opening is meant to be used both ways: it allows air inside the can to break the vacuum and it allows the product out.

2. Opening a can is like creating a new vessel, since the closed can is useless, and opening it creates a serviceable vessel. Although he acknowledges that few people reuse cans, they can be reused, particularly by resourceful people (Orach Chayim 51:11).

Rav Shelomoh Zalman disputes the rationale that a soda can opening is considered “two-way”, since the entire purpose of allowing the air in is to enable the product to exit. Also, he does not consider the resultant opening a “nice opening”, since it is simply a means of removing the product from the container.

In conclusion, the intent of this article is not to provide a definitive pesak regarding these issues – every person should ask his posek. Our goal is to give people a better understanding of the issues involved and an appreciation of their rav’s ruling, whatever it may be.

A contemporary halachic question which relates to this issue is as follows: Can a person suffering from angina or other heart disease carry his medication on Shabbos through a public thoroughfare? In case of a sudden attack, there would indeed be a life threatening need that permits procurement of such medication through any necessary means. However, there is no medical reason that compels the patient to leave his home where his medicine is kept. Is there halachic basis to allow him to carry his medication, since the possible medical emergency can be completely avoided? Granted that this would result in a great hardship by making the patient housebound on Shabbos, yet this deprivation would not constitute a life-threatening emergency and would not be grounds for overriding a Torah-proscribed Shabbos prohibition.

The halachic question is two-fold: Can carrying the medicine be considered a rabbinic violation, as opposed to a Torah violation, thus making it more acceptable? Does there exist a halachic basis for permitting the overriding of a rabbinic prohibition because of hardships?

The same principles can be applied to other medical situations. For example, the diabetic who receives insulin injections is usually medically advised to carry with him some food items containing sugar, as a precaution against insulin shock; and certain asthmatics and other allergy sufferers are advised never to go anywhere without their medication available. Would these patients be allowed to carry their sugar or medicine on Shabbos in a way that involves violating only a rabbinic decree?

Most contemporary authorities who address this issue base their discussion on a responsum of Rav Shmuel Engel, dated 9 Tammuz 5679 (July 7, 1919).[1] At the time of this question, there was a government regulation in force, requiring the carrying of identification papers whenever one walked outside, with serious consequences for those apprehended in violation. Rav Engel was asked whether one could place his identification papers under one’s hat on Shabbos while walking to shul. Rav Engel’s analysis of the halachic issues involved will clarify many of the aspects of our question.

Shabbos violations fall under two broad headings: those activities that are forbidden min hatorah (Torah-mandated), and those that are forbidden by rabbinic injunction, but do not qualify as melacha (forbidden work) according to the Torah’s requirements.

Torah law is not violated unless the melacha is performed in a manner in which that activity is usually done. If the act is done in a peculiar way, such as an item being carried in a way that things are not normally carried, it constitutes a rabbinic violation, but is permitted under Torah law. This deviation is called a shinui.[2]

Rav Engel points out that carrying identification papers in one’s hat would constitute a shinui, thus allowing a possibility of leniency. He quotes two Talmudic sources that permit melacha with a shinui on Shabbos because of extenuating — but not life-threatening – circumstances.

Rabbi Marinus said, "One who is suffering is allowed to suck milk directly from a goat on Shabbos. Why? [Is not milking an animal on Shabbos a violation of a Torah prohibition?] Sucking is considered milking in an unusual way, and the rabbis permitted it because of the discomfort of the patient." [3]

Tosafos notes that the leniency is allowed only if the suffering is caused by illness and not simply by thirst. The Talmudic text and commentary of Tosafos are quoted as halachic decision by the Shulchan Aruch.[4]

There is another Talmudic text with a similar conclusion:

Nachum of Gaul said, "One is allowed on Shabbos to clean a spout that has become clogged by crushing [the clogged matter] with one’s foot. Why? [Is it not forbidden to perform repair work on Shabbos?]Since the repair work is done in an unusual manner, the Rabbis permitted it in a case of potential damage."

Based on these Talmudic sources, Rav Engel concludes that the rabbis permitted the performance of melacha with a shinui under extenuating circumstances, even though rabbinic prohibitions are not usually waived for these situations. Furthermore, he points out two other mitigating factors: according to most opinions, the prohibition of carrying on Shabbos in our cities (even in the usual fashion) is rabbinic because "our public areas do not constitute a public domain according to Torah law." And carrying identification papers would constitute a melacha done without any need for the result, which would also provide a reason to be lenient, as will be explained.

Melacha She’einah tzricha legufah

In several places, the Gemara[5] records a dispute between Rabbi Yehudah and Rabbi Shimon as to whether a melacha she’einah tzricha legufah, an action done intentionally and in the normal fashion, but without a need for the result of the action, is forbidden by the Torah or only rabbinically. For example, carrying a corpse from a private domain into a public domain would not constitute a Torah desecration of Shabbos according to Rabbi Shimon, since one’s purpose is to remove the corpse from the private domain, and not because he has a need for it in the public domain. Similarly, snaring or killing a predator insect or reptile would be a melacha she’einah tzricha legufah, since one has no need for the caught reptile, and therefore constitutes only a rabbinic violation, according to Rabbi Shimon. Both of these cases violate Torah prohibition according to Rabbi Yehudah, who opines that a melacha she’einah tzricha legufah is a Torah-mandated prohibition.

Although the Rambam[6] follows the opinion of Rabbi Yehudah, the majority of halachic authorities concur with Rabbi Shimon.[7]

Rav Engel considers carrying identification papers in one’s hat as a melacha she’einah tzricha legufah, because the carrier has no personal use for the papers and is carrying them merely to avoid injury or loss. He compares this to the killing of the snake, where the intent is to avoid injury. Although his point is arguable, as evidenced by a later responsum,[8] Rav Engel reiterates his position that this situation qualifies as a melacha she’einah tzricha legufah.

Placing identification papers in one’s hat and carrying them that way is permitted by Rav Engel because of the following mitigating reasons.

1. The Gemara permits performing a melacha she’einah tzricha legufah under extenuating circumstances (illness or financial loss).

2. In any case, the prohibition involved, even if performed in a regular manner, would involve only rabbinic prohibition, not a Torah law. This conclusion is justified, either because of the principle of melacha she’einah tzricha legufah, or because no Torah-mandated public domain exists today.

3. Carrying the identification papers is to be allowed only to attend the synagogue or to perform a different mitzvah.

This responsum provides us with strong halachic precedent, although certain aspects of our case differ from those of Rav Engel’s. Firstly, whereas in Rav Engel’s case, the identification papers had no intrinsic worth to the carrier, the nitroglycerin tablets do have intrinsic value to the patient. This would render them a melacha hatzricha legufah, a melacha performed with interest in the results being done, which constitutes a Torah- forbidden melacha. Thus, one of the reasons for being lenient is nullified.

Secondly, Rav Engel permitted the carrying of identification papers only for the performance of a mitzvah. Would he have allowed a greater leniency for someone who is ill? Bearing in mind the case of Rabbi Marinus, where permission is based on medical needs, could leniency be extended to allow carrying with a shinui, even for social or other reasons?

Several later halachic works discuss the question of a patient carrying medication with a shinui, as a precaution against sudden attack. Rav Yekutiel Y. Greenwald[9] suggests that a sugar cube be sewn into the pocket of a diabetic’s coat before Shabbos, so that he would not be carrying in the usual manner. Rav Greenwald bases his opinion on the Gemara[10] which allows the carrying of an amulet on Shabbos as a medicinal item, and the responsum of Rav Shmuel Engel quoted above. Unfortunately, the comparison to the law of kamayah (amulet) seems strained. The halacha clearly states that the kamayah must be worn in the way that it is normally worn, and that it can be worn only if it is a proven remedy; under these circumstances, the kamayah is considered to be like a garment. There does not seem to be a basis in these considerations to allow carrying for non-life threatening medical need. However, Rav Greenwald allows the diabetic to go outside even for non-mitzvah-related activities.

Rav Eliezer Yehuda Waldenberg[11] cites the responsum of Rav Greenwald, but disputes his conclusions sharply. In addition to the difficulty we have noted, he also disputes two assumptions of Rav Greenwald.

1. Whereas Rav Greenwald says that one could allow the sugar cube (or medicine tablet) to be sewn into the garment in order to carry it on Shabbos, Rav Waldenberg finds no halachic source to permit carrying an item in this fashion.

2. Rav Waldenberg writes that the only situation in which Rav Engel permitted the carrying with a shinui was when the activity would have constituted a melacha she’einah tzricha legufah. This applies to carrying identification papers, where the carrier has no personal need for the papers and is carrying them only to avoid being apprehended. It does not apply to the case of medication, where the patient wants the medicine available for his own use.

Rav Waldenberg concludes that the leniency proposed by Rav Engel is not applicable to our situation, and that this patient would not be allowed to carry his medication outside, even when using a shinui. A mediating position is taken by Rav Yehoshua Neuwirth.[12] Although he equates the situation of the person carrying identification papers to the one carrying medication, and does permit the carrying of medication with a shinui for the propose of performing a mitzvah, Rav Neuwirth recommends other specific guidelines, a discussion of which is beyond the scope of this article.

In a responsum on this topic by Rav Menashe Klein,[13] he concludes that a patient is allowed to carry nitroglycerin tablets with a shinui for the purpose of going to shul or for performing another mitzvah. Rav Klein also includes two other reasons to be lenient:

1. There is currently no public domain according to Torah definitions.

2. He considers this carrying to be a melacha she’einah tzricha legufah, a point which is certainly disputed by the other authorities quoted.

An interesting comment quoted in the name of the Chasam Sofer by the Levushei Mordechai[14] should also shed light on this issue. Levushei Mordechai reports that the Chasam Sofer was in the habit of carrying a handkerchief tied around his wrist outside of the eruv on Shabbos, because it is considered carrying with a shinui and is permitted, because of the need for the handkerchief. The prohibition of rabbinic origin is overridden by the need for personal dignity (kavod haberiyos). No stipulation is made by Levushei Mordechai that the walking is done exclusively for a mitzvah purpose.

One might think that the discomfort of staying home on Shabbos provides greater reason to be lenient than the concept of personal dignity, and that this responsum could therefore be utilized as a basis to allow carrying of nitroglycerin with a shinui. However, few later poskim refer to the comment of the Levushei Mordechai.[15]

The following conclusions can be reached:

1. There is halachic basis for permitting the performance of rabbinically–prohibited activities with a shinui, in certain extenuating circumstances.

2. Rav Engel allowed the carrying of identification papers in one’s hat to enable one to perform a mitzvah.

3. Several contemporary poskim discuss this question and reach divergent conclusions.

[1] Shu’t Maharash Engel, 3:43

[2] See Shabbos 92a, 104b

[3] Kesubos 60a

[4] Orach Chayim 328:33

[5] Shabbos 12a, 31b, 73b etc.

[6] Hilchos Shabbos 1:7

[7] I refer the reader to read my Hebrew Kuntrus on the topic, published at the end of Nimla Tal Volume I

[8] Shu’t Maharash Engel, 7:20

[9] Kol Bo on the laws of Aveilus, Volume 2, page 20

[10] Shabbos 60a, 67a

[11] Shu’t Tzitz Eliezer 13:34

[12] Shemiras Shabbos KeHilchasah, Chapter 40 #7

[13] Shu’t Meshaneh Halachos 7:56

[14] Shu’t Levushei Mordechai #133

[15] It is quoted by Shearim HaMetzuyanim BaHalacha 84:13 and by Lev Avraham Volume 1, Chapter 6.

Thirty Days has September, April, June, November, Tishrei, Shvat, Nissan, Sivan, Av and sometimes Cheshvan^[1] and Kislev. Yet a reading of Mishnah Rosh Hashanah implies that whether a month has 29 days or 30 depends on when the witnesses saw the new moon and testified in Beis Din early enough to declare the thirtieth day Rosh Chodesh. In addition, the Gemara^[2] notes that Elul could be thirty days long, something that cannot happen in our calendar. How did our empirical calendar become so rigid and predictable in advance? Come with me as we explore the history and foundations of the Jewish calendar!

The Torah (Shemos 12:2) commands the main Beis Din of the Jewish people, or a Beis Din specially appointed by them, to declare Rosh Chodesh upon accepting the testimony of witnesses who observed the new moon (Rambam, Hilchos Kiddush HaChodesh 1:1, 7; 5:1). The purpose of having eyewitnesses was not to notify the Beis Din of its occurrence; the Beis Din had extensive knowledge of astronomy and already knew exactly when and where the new moon would appear and what size and shape it would have (Rambam, Hilchos Kiddush HaChodesh 2:4; Ritva on the Mishnah Rosh Hashanah 18a). The moon’s location and speed is constantly influenced by many factors, but the wise scholars of the tribe of Yissachar calculated where and when it would appear.

The Molad

As the moon orbits earth, we on earth observe it as passing through its various phases, from the very smallest crescent until full moon, and then shrinking until it disappears completely. This monthly cycle occurs because the moon has no light of its own, and only reflects sunlight back to earth. As the moon travels around the earth, the angle at which it reflects light changes. This evidences itself in the moon’s changing phases. When the moon is on the side of the earth away from the sun, we see the full moon, because it is now at an angle whereby the entire side is reflecting light to us. However, when the moon is on the side of earth nearest the sun, we see no reflection of its light at all, and that is the point of every month when the moon disappears from earthly view. The molad is the point at which the moon crosses the plane between the earth and the sun, which means it is the beginning of a new cycle, called in English the new moon and in technical jargon the point of conjunction.

From the time of the actual molad you can calculate when the moon will become visible. Chazal always kept secret how one can predict when the new moon was to appear so as to avoid false witnesses abusing the knowledge of this information (Rambam, Hilchos Kiddush HaChodesh, 11:4).

The purpose of having eyewitnesses was not to notify the Beis Din of its occurrence; rather, the Torah required the Beis Din to wait for witnesses to determine whether the 30^th day (of the previous month) would be the last day of the old month or the first day of a new month. If no witnesses to the new moon testified on the 30^th day, then the new month does not begin until the 31^st day, regardless of the astronomic calculations (Mishnah Rosh Hashanah 24a). Thus, prior to the establishment of our current "permanent" calendar, any month could be either 29 or 30 days, dependent on when the new moon appeared and whether witnesses arrived in Beis Din to testify about this phenomenon.

By the way, we should be aware that the above description follows the opinion of the Rambam, that the preferred and original mitzvah is to declare Rosh Chodesh based on the testimony of witnesses. However, there are several early authorities, including Rav Saadyah Gaon and Rabbeinu Chananel, who hold that the primary mitzvah is to declare Rosh Chodesh on the basis of the calculations, and that use of witnesses was implemented because of certain circumstantial issues.

According to either approach, the calendar printers could not go to press until the Beis Din had declared Rosh Chodesh, which probably explains why calendar manufacture in those times was a difficult business in which to turn a profit. Perhaps this is why organizations mailed out so few fundraising calendars in the days of Chazal!

There is another commandment of the Torah – that Pesach must always occur in the Spring (Devarim 16:1). This seemingly innocuous obligation actually requires considerable manipulation of the calendar, since the months, derived from the word moon, are determined by the length of time from one new moon to the next, which is a bit more than 29 1/2 days. However, the year and its seasons are determined by the relative location of the sun to the earth, which is a bit less than 365 1/4 days. By requiring Pesach to always be in the spring, the Torah required that the calendar could not be exclusively twelve lunar months, since this would result in Pesach wandering its way through the solar year and occurring in all seasons.^[3]

Among contemporary calendars, most make no attempt to accommodate the solar year and the lunar month. What we refer to as the common secular calendar, or the Gregorian calendar, is completely based on the sun. Although the year is broken into months, the use of the word "months" is borrowed from its original meaning and has been significantly changed since the months have no relationship to any cycle of the moon. Most of the secular months have 31 days, while the lunar cycle is only about 29 1/2 days, and even those secular months that have 30 days do not relate to any phase or change in the moon. Similarly, the length of February as a month of either 28 or 29 days has nothing to do with the moon. Thus, although the word month should correspond to the moon, the Western calendar is purely a solar one, with a borrowed unit "month" given a meaning that distorts its origins.

The Moslem calendar is purely a lunar calendar of twelve lunar months, some 29 days and some 30, but has no relationship to the solar year. In truth, a pure lunar calendar has no real "year," since a year is based on the relative locations of the sun and the earth and the resultant seasons, and the Moslem year completely ignores seasons. The word "year" is used in the Moslem sense only as a basis for counting longer periods of time, but has no relationship to the sun. Thus the Moslem "year" is only 354 or 355 days long — almost 11 days shorter than a true solar year. Therefore, a Moslem who tells you that he is 65 years old is really closer to 63 according to a solar year count. He has counted 65 years that are at least ten days shorter. I trust that Guinness takes these factors into account when computing longevity, and insurance companies realize this when calculating actuarial tables.

To review: the Moslem calendar accurately tracks the moon and the months, but has no relationship to a true year, and the Western secular calendar is fairly accurate at tracking the year and its seasons, but has no relationship to the moon and its phases.

It is noteworthy that although the Moslem "year" does not correspond at all to a solar or western year, it closely corresponds to our Jewish year in a "common" year which is only twelve months long, and the Moslem month follows closely the Jewish calendar month. (We will soon explain why there is sometimes a discrepancy of a day or two.) Thus, for three years recently, Ramadan, the Moslem holy month, corresponded to our month of Elul, although this year Ramadan falls in Av. It is accurate to say that the Moslem year "wanders" its way through the seasons as it takes 33 years until a specific month returns to the same corresponding time in the solar year, and in the interim the month has visited each of the other seasons for several consecutive years. Thus, Ramadan will not coincide with Elul again this generation, but falls in Av for three years, with Tamuz for two years, and then with Sivan, etc.

However, when Hashem commanded us to create a calendar, He insisted that we use the moon to define the months, and yet also keep our months in sync with the seasons, which are dependent on the sun; to determine the dates of the Yomim Tovim. The only way to do this is to use the Jewish calendar method of occasionally adding months – thereby creating 13 month years, which we call "leap years," to offset the almost 11 day difference between twelve lunar months and a solar year. The result of this calendar is that although each date does not fall exactly on the same "solar date" every year, it falls within a fairly close range relative to the solar year.

Who determined which year has thirteen months?

The original system was that the main Beis Din (also known as the Sanhedrin) appointed a smaller special Beis Din to determine whether the year should have an extra month added. This special Beis Din took into consideration:

1) Astronomical data, such as: When Pesach will fall out relative to the vernal equinox (the Spring day on which day and night are closest to being equal in length).

2) Agricultural data, such as: How ripe is the barley? How large are the newborn lambs and pigeons?

3) Weather: Is the rainy season drawing to a close? Is it a famine year?

4) Convenience – or more specifically, the halachic inconvenience of creating a leap year: Shemittah was never made into a leap year, and the year before shemittah usually was.

5) Infrastructure, such as: In what condition were the highways and bridges.

All of these points influenced whether the thirteenth month, the extra Adar, would be added.^[4] When this system was in place, which was from the time of Moshe and Yehoshua until almost three hundred years after the destruction of the Beis Hamikdash, the main Beis Din sent written messages notifying outlying communities of the decision to create a leap year and the reasons for their decision.^[5]

By the way, after the destruction of the Beis HaMikdash, the main Beis Din was not located in Yerushalayim, but wherever the Nasi of the Jewish people resided, as long as it was in Eretz Yisrael. This included several other communities at various times of Jewish history, including Teverya, Yavneh, and Shafraam.^[6] Indeed, during this period sometimes the special Beis Din met outside the land of Israel — should the head of the Beis Din be in the Diaspora and there be no one of his stature remaining in Eretz Yisrael.^[7]

This explains how the calendar is intended to be calculated.  I have not yet explained why and how our current calendar came to be. This will be discussed in a future article.

^[1] Although the correct name of the month is Marcheshvan, we will follow the colloquial use of calling it Cheshvan.

^[2] Rosh Hashanah 19b, 20a

^[3] Rambam, Hilchos Kiddush HaChodesh 4:1

^[4] Sanhedrin 11a- 12a

^[5] Sanhedrin 11b; Rambam, Hilchos Kiddush HaChodesh 4:17

^[6] Rosh Hashanah 31b

^[7] Berachos 63a; Rambam, Hilchos Kiddush HaChodesh 1:8

Yonasan, who was originally adopted by non-observant parents, called me with the following shaylah:

“My parents, meaning the couple who adopted me, eventually divorced, and later my father remarried, although there was a halachic problem with his second marriage. My adoptive father was a kohen, and his second wife, Martha, was a divorcee. Recently, my father passed away. My father’s final will, which was drafted when he was ill and very dependent on Martha, was completely different from his previous will, and left virtually all his property to her. Uncle Jack, my adoptive father’s brother, is very upset about the will, believing that this was certainly not my father’s intention, and that it can be overturned in court. This would make me the legal heir to my father’s estate, although halachically, I am not his son. Uncle Jack wants to file a lawsuit over the matter; however, he has no legal recourse to do so, since the civil law does not consider him my father’s heir. May I file a lawsuit to overturn the will?”

This shaylah is indeed as complicated halachically as it sounds, and actually involves three different areas of halacha:

I. Who is the heir?

II. What is the halachic status of a will?

III. May one file the lawsuit in secular court?

In addition, there is a fourth halachic issue that must be addressed, a question of yibum, which I will discuss later.

I will explain each area of halacha mentioned above in order to explain the procedure that I suggested that Yonasan follow.

I. Who is the heir?

Although civil law considers Yonasan the child of his adoptive parents for all matters, including his being their legal heir, the adoption did not make him their biological son. Indeed, the Gemara states that someone who raises a child is considered as if he had given birth to him;^[1] however, the adopted child does not inherit, unless he receives the property as some form of gift, as I will explain.

Thus, although Yonasan is his father’s legal heir (from a civil law perspective, if we ignore the will), halacha does not consider him an heir automatically, unless his father gave him the property in a halachically correct will. Since the existing will made other accommodations, Yonasan receives nothing from his father’s estate halachically, neither as an automatic heir nor as the receiver of gifts through his father’s will. Thus, Yonasan cannot make a financial claim against his stepmother for his father’s estate, since it does not belong to him. If the will is valid, then the property belongs to Martha, his stepmother. If the will is invalid, the property belongs to Uncle Jack.

Why Uncle Jack?

If a man dies without biological children and makes no halachic provisions for his estate, then his closest heir is his father, who, in this case, is already deceased. The next closest relative is any surviving brother. In this case, there is one biological brother of the deceased, Uncle Jack. Thus, he is the halachic heir of Yonasan’s father, and if indeed the will is halachically invalid, the property halachically belongs to him, although he may not be able to take possession of it according to civil law.

Halachically, a woman does not inherit from her husband as next of kin. Instead, the Torah gives her the rights of the kesubah, provides that she may live in her late husband’s house and guarantees her income and support from his property. Martha is entitled to these financial rights if she was halachically married to Yonasan’s father, even if the marriage fell into the category of a halachically prohibited marriage. (One method whereby Martha and Yonasan’s father could have been halachically married in a prohibited marriage would be if they had deceived an Orthodox rabbi, dishonestly getting his agreement to perform their ceremony. There are others.) Thus, if Martha proves that she was halachically married to Yonasan’s father, she will be entitled to this support, even though she was a divorcee and he was a kohen.^[2]

II. Is the will valid?

According to civil law, a person has the right to choose his heirs and thereby to choose to whom he distributes his earthly wealth after passing on. However, according to the Torah, a person does not have the ability to choose his heirs, nor can he arrange to give away property after death. When a man dies, the Torah instructs us how to distribute his assets, through the laws of yerusha.

How can someone leave his property to his adopted child?

There are methods whereby one can transfer his property to his adopted child, or to anyone else, for that matter, who is not a halachic heir. One method is to draw up a will, and then make a kinyan that transfers possession of the bequeathed property to the beneficiary of the will. (I mention this method as a possible illustration, since it does not work in all situations.) This can be done in a way that the person wishing to bequeath his property maintains ownership over it in the meantime and leaves him the right to change his bequest later. Some poskim, albeit a minority, contend that a legally valid will alone constitutes a kinyan. These authorities reason that arranging a legally valid will, knowing that the government will transfer property as a result, is halachically equivalent to making a kinyan.^[3] However, most poskim maintain that a standard civil will is not halachically valid.

Yonasan’s father was not observant and did not have his lawyer make the will halachically valid. (Unfortunately, many observant Jews do not attend to this important matter either. Just as it is important for a person to have a will drawn up, it is important to make sure that it is halachically valid.) Therefore, many poskim would consider Uncle Jack to be the halachic heir of the estate, yet he cannot file a civil suit concerning the property, since he is not an interested party according to civil law. But before we even get to this step in the discussion, we need to discuss whether the Torah permits Yonasan or Uncle Jack to sue in civil court.

III. Arka’os, the prohibition against filing a suit in a secular court.

A Jew may not litigate against a fellow Jew in civil court,^[4] even if both parties agree.^[5] This is known as the prohibition against using arka’os. Someone who uses court systems not sanctioned by the Torah performs a chillul Hashem, a desecration of G-d’s Name, because he demonstrates that he feels that G-d’s Torah cannot resolve his financial matters.^[6] In the words of the Rambam,^[7] “Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rasha. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu.”^[8] Someone who brought litigation to a secular court is invalidated from being a chazzan for Yomim Nora’im.^[9] In addition, he will probably transgress the violation of stealing (gezel), since the property he receives is not his according to halacha.

What if the Other Party Refuses to Go to Beis Din?

This problem is, unfortunately, neither uncommon nor recent, and apparently occurred even at the time of the Gemara.^[10] If this happens, the halachically correct procedure is for the plaintiff to have beis din summon the defendant. If the defendant fails to appear in beis din or indicates that he will not appear, the beis din authorizes the plaintiff to sue in civil court.^[11] Under these circumstances, the plaintiff has not violated the prohibition of going to arka’os, since he acted according to halacha.

(It should be noted that even if someone is authorized to sue in civil court, he is only entitled to receive what halacha entitles him. It could happen that the civil court awards him more money than he is entitled to according to halacha. Therefore, he should ask a posek after winning the litigation how much of the award he may keep. The balance he would be required to return to the other party.)

Applying these rules to our case means that Uncle Jack may file a suit in beis din against Martha. Although Uncle Jack would like Yonasan to sue in civil courts, Yonasan may not sue according to halacha for two different reasons:

(1) One may not sue in civil court without permission from beis din.

(2) Yonasan has no halachic grounds to claim his adopted father’s estate since he is halachically not an heir.

Does this mean that this was the end of the case?

No. Yonasan explained to Uncle Jack the halachic background to the shaylah. Uncle Jack feels strongly that Martha took unfair advantage of his ill brother, which is the reason why he and his attorney feel that the will can be easily overturned in civil court. Uncle Jack then asked Yonasan if there is any way that Yonasan could proceed with the claim.

Harsha’ah

Enter harsha’ah, which is the halachic equivalent of a power of attorney, into the picture. A harsha’ah allows someone who is not an interested party in the litigation to sue as if he is an interested party. In this instance, Uncle Jack, as the halachic heir, can authorize Yonasan by means of a harsha’ah to sue Martha in beis din. If Martha ignores the summons or indicates that she will not respond to it, the beis din authorizes Yonasan and Uncle Jack to pursue the matter in civil court. The court will not accept Uncle Jack as a plaintiff against the will, since they do not recognize him as the heir. Although the court does not recognize Uncle Jack’s claim, Yonasan may now sue in civil court, based on the beis din’s authorization. Halachically, the basis of the civil suit is to save Uncle Jack the money that is his, even though neither the civil court nor Uncle Jack himself accepts that the money is his.

At this point in the discussion, Yonasan e-mailed me a further question:

“Dear Rav Kaganoff,

“In the event that my uncle does choose, with permission from a beis din, to sue my father’s widow in civil court, *should* I or merely *may* I act on his behalf?”

Indeed, this is a difficult question. In general, saving someone’s money is a mitzvah, and therefore, if someone sued in beis din and was ignored, it is a mitzvah to help him save his money in civil court, providing that this approach was properly authorized by beis din. This act of chesed is included under the mitzvah of hashavas aveidah, returning a lost object to its proper owner.

In our instance, I was less certain if this is considered hashavas aveidah, since Uncle Jack does not consider the money his and is only planning to give it to Yonasan. Is Yonasan required to assist in helping Uncle Jack claim the money, knowing that Uncle Jack will probably assume that it is Yonasan’s and give it to him? Furthermore, since there might be poskim who feel that the money is legitimately Martha’s, one could certainly rely on their opinions to rule that it is not a requirement for him to be involved in the litigation. Thus, there are two different considerations as to why he may not be considered “saving someone’s money”:

(1) Can you say that he is saving someone else’s money, when that person intends to give it to him?

(2) According to some opinions, the money may not be Uncle Jack’s, but Martha’s. Although he is permitted to follow the opinion that the money is Uncle Jack’s, is he required to?

Another consideration: Chalitzah

At this point in the discussion, I introduced a new topic to Yonasan, that of the mitzvah of chalitzah. This requires some explanation. If a man dies without having biological children, there is a mitzvah for his brother to perform a procedure called chalitzah, which permits the widow to remarry. In addition, the chalitzah is a tremendous tikun neshamah for the departed. The mitzvah applies even if the widow is no longer of child-bearing age, and even if the couple married after she was beyond child-bearing age.

Many people do not realize that, if a couple has adopted children, but no biological children, the mitzvah of chalitzah still applies. Since Yonasan’s father had no biological children, his widow (assuming that they were halachically married, as she claims) is a yevamah, who requires chalitzah from Yonasan’s uncle to permit her to remarry.

I quote my letter to Yonasan:

“If your father’s marriage to his last wife was halachically valid, then there is a requirement/mitzvah for your uncle to perform chalitzah,^[12] even if your father’s widow has no intention of remarrying and is not observant.”

Yonasan replied:

“I’m surprised it didn’t occur to me.  Question, though — even if they did get married with chuppah and kiddushin, she was a grusha, and he a kohen, so the marriage was forbidden.  He claimed to have asked a rabbi, who permitted the marriage on the basis that since he was disabled, he would not be allowed to perform the avodah, even if the Beis HaMikdash was standing. I did not think this is correct [indeed it is not], but I didn’t see any point in making an issue of it.  Was he right?  Assuming that his marriage was halachically unacceptable. Would that in any way impact on chalitzah?"

To which I replied:

“There is absolutely no halachic basis to any of the reasons he told you to permit this marriage. I presume that he mentioned these reasons to relieve his own conscience, and that he never asked a shaylah; halachically, he was prohibited from marrying a divorcee.

“A halacha-abiding rabbi would not perform such a ceremony, unless he was unaware either that your father was a kohen or that his wife was a grusha. However, even if there had been no proper halachic ceremony, they might have been considered married according to halacha, particularly since they considered themselves married. Thus, although this marriage was forbidden, there may be a requirement to perform chalitzah. The mitzvah of chalitzah applies even in the case of a kohen who marries a divorcee.^[13] Is there anyone where they live knowledgeable enough to arrange this for them?”

Yonasan responded to my inquiry:

“There are some very prominent talmidei chachomim living near where both my uncle and my stepmother live.  However, they live a considerable distance from one another. I doubt that the widow is aware of the need for a chalitzah; I also doubt that she’ll object to it if it’s made easy for her. My uncle is, however, totally irreligious. How would I get him to agree to it and to travel the distance involved? He is unlikely to drop everything and fly to where she is to perform what he would see as an unimportant religious ceremony to help out a woman with whom he is upset.  What if he were to appoint someone else as a shaliach over the phone?  Would that be acceptable?”

To which I responded,

“Unfortunately, chalitzah cannot be performed through shelichus (agency). It sounds as if the most likely way for this to happen is to wait until a time that you know that they will be near one another  and then plan carefully how to present it to them. Alternatively, simply mention to them that chalitzah is a big tikun neshamah for your father, whom they both liked (I presume), and ask if they can keep it in mind in future travel plans.

"By the way, the mitzvah is your uncle’s mitzvah to perform, not hers.”

As of this writing, I do not know if Yonasan decided to proceed with the litigation over the will, and I presume that no action has resulted concerning the chalitzah. However, this situation affords us the opportunity to discuss halachos with which many people are unfamiliar, and it provides a tremendous opportunity to make people aware of a number of different mitzvos.

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

Indeed, through this entire halachic conversation, I was exceedingly impressed by Yonasan’s ability not to be swayed by financial considerations, but to be certain that what he did would be the perfectly correct approach halachically. In fact, he was shortly thereafter awarded a tremendous financial windfall – no doubt, for his adherence to halacha, despite whatever financial temptation existed.

^[1] Megillah 13a; Sanhedrin 19b

^[2] Mishnah Kesubos 100b

^[3] Shu’t Igros Moshe, Even HaEzer 1:104

^[4] Gittin 88b

^[5] Ramban, beginning of Parshas Mishpatim

^[6] Midrash Tanchuma, Mishpatim #3

^[7] Hilchos Sanhedrin 26:7

^[8] See also Rashi’s comments on Shemos 21:1

^[9] Mishnah Berurah 53:82

^[10] Bava Kama 92b, as explained by Rosh

^[11] Shulchan Aruch, Choshen Mishpat 26:2

^[12] Mishnah Yevamos 20a

^[13] Mishnah Yevamos 20a

This sounds like a good week (parshas Va’Yeshev) to study:

By Rabbi Yirmiyohu Kaganoff

Question # 1:  My boss asked me to attend a lunch meeting with a new client in a non-kosher restaurant. May I attend the meeting, or do I violate maris ayin if I am seen in a treif restaurant? If it is permissible to attend the meeting, may I order a cup of coffee or a fruit plate?

Question # 2: When I serve coffee after a fleishig meal, I like to put non-dairy creamer on the table in a small pitcher because the original container is unsightly. Recently, someone told me that I may not place the creamer on the fleishig table unless it is in its original container. Is this true?

Question # 3: Hyman Goldman would like to retire and sell his business, Hymie Goldman’s Bakery, to a non-Jew who will keep it open on Shabbos. Must he require the gentile to change the shop’s name?

Question #4: My not-yet-observant cousin is making a bar mitzvah in a Reform temple. We have a good relationship, and he is very curious about exploring authentic Judaism. May I attend the bar mitzvah?

Answer: Most of us are familiar with the prohibition of maris ayin, avoiding doing something that may raise suspicion that one violated halacha. However, most of us are uncertain when this rule applies, and when it does not.

Here are some examples of maris ayin mentioned by the Mishnah and Gemara:

A. One may not hang out wet clothes on Shabbos because neighbors might think that he washed them on Shabbos.^[1] This is true even when all the neighbors realize that he is a meticulously observant individual.

B. Officials who entered the Beis HaMikdash treasury did so barefoot and wearing garments that contained no hemmed parts or wide sleeves, and certainly no pockets or cuffs, so that it would be impossible for them to hide any coins.^[2] The Mishnah states that this practice is derived from the pasuk vihiyisem nekiyim meiHashem umiyisroel,^[3] — Do things in a way that is as obviously clean in the eyes of people as it is viewed by Hashem. Rav Moshe Feinstein contends that some types of maris ayin are prohibited min haTorah!^[4]

C. Tzedakah collectors should get other people to convert their currency for them and not convert it themselves, because people might think that they gave themselves a more favorable exchange rate.^[5]

A Curious Contradiction

The concept of it being a mitzvah to avoid a situation of maris ayin is a fascinating curiosity, because it contradicts another important Torah mitzvah – to judge people favorably. This mitzvah requires us to judge a Torah Jew favorably when we see him act in a questionable way.^[6] If everyone were to judge others favorably at all times, there would never be a reason for the law of maris ayin. Yet we see that the Torah is concerned that someone might judge a person unfavorably and suspect him of violating a mitzvah.

Indeed, a person’s actions must be above suspicion; at the same time, people observing him act in a suspicious way are required to judge him favorably.

Entering a Treif Restaurant

May I enter a non-kosher restaurant to use the bathroom, to eat a permitted item, or to attend a professional meeting?

A prominent rav once gleaned insight on this shaylah from early poskim, who discussed the kashrus issues of Jewish travelers. In the sixteenth century, there was a dispute between the Rama and the Maharshal whether a Jewish traveler may eat herring and pickles prepared and served in non-kosher inns.^[7] The Rama ruled that, under the circumstances, a traveler could eat these items on the inn’s non-kosher plates, whereas the Maharshal prohibited using the inn’s plates. However, neither sage prohibited either eating or entering the inn because of maris ayin; from this, the rav inferred that entering a non-kosher eating establishment does not violate maris ayin.

However, Rav Moshe Feinstein rules that entering a non-kosher eatery is a violation of maris ayin.^[8] Why does he not compare this law to the inn of the earlier poskim?

The answer is that in the sixteenth century, the inn functioned as a place of shelter and lodging, not only as a place providing food. Therefore, someone seeing you enter the inn would have assumed that you were looking for a place to sleep, and that you had no intention of eating non-kosher food there. Thus, the sixteenth-century inn is comparable to a twenty-first century hotel that contains non-kosher restaurants. There is certainly no maris ayin prohibition to visit a hotel, since a passerby would assume that you are entering the hotel for reasons other than eating non-kosher food. However, the primary reason people enter a non-kosher restaurant is to eat treif food. Therefore, Rav Moshe rules that it is prohibited to enter a treif restaurant because of maris ayin.

Likely? Or almost likely?

This leads us to a practical question. May one do something that could be interpreted in different ways, one of which involves violating the Torah and the other not? Is this activity prohibited because of maris ayin? For example, someone hanging up wet clothes on Shabbos may have just washed them, or he may have just accidentally dropped them into a basin of water or used them to mop up a spill. Yet the halacha is that this is prohibited because of maris ayin. This implies that since the most common reason for hanging out clothes is that they were recently washed, the activity is prohibited because of maris ayin.

Similarly, there are many reasons why one might enter a treif restaurant: to attend a meeting, to use the comfort facilities, or to drink a cup of water. On the other hand, the most common reason people enter a non-kosher restaurant is to eat non-kosher food. This is why Rav Moshe prohibits entering a treif restaurant.

However, Rav Moshe rules that under highly extenuating circumstances, such as when one is famished and there is nowhere else to eat, one may enter a treif restaurant. This is based on another principle of Chazal that when one suffers a great deal, one may override a rabbinic prohibition to alleviate the pain.^[9] For this reason, Rav Moshe permits someone who is famished to eat kosher food in a non-kosher restaurant. Based on his ruling, one could presumably permit entering a treif restaurant to use the restroom, if it is the only one readily available.

The Company Cafeteria

Many workplaces provide a cafeteria where one can purchase (non-kosher) food or bring in one’s own food. Alternatively, some cafeterias have packaged kosher food available. In either of these situations, there is no concern for maris ayin, since people enter the cafeteria to eat kosher food also.

May I Attend a Meeting where they will serve Non-Kosher food?

Rabbonim rule differently on this issue; therefore, one should ask a shaylah of his own rav. Personally, I believe that the answer depends on how secure one is at one’s employment. If you feel that skipping the meeting might jeopardize your employment, then you may attend, since losing your job entails a great amount of suffering. However, if you feel that it will not jeopardize your employment, you may not attend.

Are there new Maris Ayin cases?

If a situation exists that could be a case of maris ayin, but is not mentioned by Chazal, is it prohibited because of maris ayin? There is actually an early dispute about this question, between the Rashba and the Pri Chodosh. A little explanation is necessary before we present this case: Chazal prohibited placing fish blood, which is perfectly kosher, in a serving bowl since someone might confuse it with animal blood.^[10] Based on this Gemara, the Rashba prohibited cooking meat in human milk, even though human milk is halachically pareve.^[11] Similarly, the Rama prohibits cooking meat in “almond milk” — a white, milk-like liquid made from almonds that probably looked similar to our non-dairy creamer or soy milk — because of its similar appearance to cow’s milk. One may cook meat in almond milk and serve it only if one leaves pieces of almond in the “milk” to call attention to its non-dairy origin.^[12] The Pri Chadash disagrees with the Rama, contending that we should not create our own cases of maris ayin and one should prohibit only those items that were prohibited by Chazal.^[13] The consensus of poskim is to prohibit these new maris ayin cases, following the position of Rashba and Rama.

Based on this ruling, some contemporary authorities contend that one should not serve pareve, non-dairy creamer after a fleishig meal, since someone might think that something milchig is being served after a fleishig meal. They permit serving the “creamer” in the original container that clearly identifies it as a pareve product, similar to serving the meat cooked with almond milk, provided there are some almonds in the “milk.”

However, other poskim contend that today no maris ayin issue exists germane to these products, since the average person knows about the ready availability of pareve creamers, cheeses, ice creams, margarines, soy and rice milk, and the like.^[14]

This leads us to a new discussion –

Maybe this is no longer Maris Ayin?

If something was prohibited as maris ayin in earlier generations, does it become permitted if there is no longer a maris ayin issue? Can we prove that the prohibition against maris ayin disappears if the issue is no longer a concern? Is it correct that although, at one time, one could not cook meat in almond milk, today one may cook meat in soy milk, since pareve milk substitutes are readily available? Similarly, may one serve margarine at a fleishig meal?

We can gather proof for answering this shaylah from the following case:

One may not hire a gentile to perform work on Shabbos that a Jew may not do. However, a non-Jew may operate his own business on Shabbos, even if he rents his facility from a Jew.

The Gemara rules that a Jew may rent his field to a non-Jewish sharecropper, since the gentile is not his employee. However, a Jew may not rent his bathhouse to a gentile, since the non-Jew may operate the bathhouse on Shabbos.^[15]

How is a Bathhouse different from a Field?

Why may I rent the non-Jew my field, but not my bathhouse? What is the difference between the two?

At the time of the Gemara, it was common to rent fields, and thus someone seeing a gentile work a Jewish-owned field on Shabbos would assume that the gentile rented it. He would not think that the Jew hired the gentile to work for him, which would constitute a violation of the laws of Shabbos.

However in antiquity, it was uncommon to rent out a bathhouse. The person who owned the bathhouse hired employees to operate the business for him. Therefore, someone seeing a gentile operate a Jewish-owned bathhouse on Shabbos might assume that the Jew hired gentiles to operate his bathhouse on Shabbos, which violates halacha. Because of this, Chazal prohibited renting a bathhouse to a gentile, because it would result in maris ayin when people see the gentile operating the Jew’s bathhouse on Shabbos.^[16]

Shulchan Aruch^[17] rules that if it is common in a certain city for people to rent out their bathhouses, one may rent one’s bathhouse to a gentile, despite the Gemara’s ruling. There is no maris ayin, since people in this city will assume that the gentile rented the bathhouse from its owner. Thus, the maris ayin prohibition of the Gemara is rescinded in places and times when the concern of suspicion no longer exists. Similarly, we can conclude that nowadays, someone seeing non-dairy creamer served at a fleishig meal will assume that it is a pareve milk substitute, and that there is no issue of maris ayin.

Question # 3: Hyman Goldman would like to retire and sell his business, Hymie Goldman’s Bakery, to a non-Jew, who will keep the business open on Shabbos. Must he require the non-Jew to change the name of the shop?

First, some background to this shaylah.

Rama permits renting a business that people do not associate with a Jewish owner to a gentile.^[18] Thus, a Jew may buy the regional franchise of a non-Jewish company and rent or franchise out the individual stores to gentiles. Acharonim dispute whether he may do this even where the Jew is sometimes involved in the management of the stores.^[19] Similarly, a Jew who owns a shopping mall may rent the stores to gentiles, since people assume that each business is owned individually. However, if the rent includes a percentage of sales, he might thereby be receiving sechar Shabbos, profits from work performed on Shabbos. One should ask a shaylah, since the halacha in this case depends on the specific circumstances involved.

However, although a Jew may rent his facility to a gentile tenant, it is unclear whether he may sell the business to a gentile who will keep the Jew’s name on the business and have it open on Shabbos. Even if passersby realize that there are now exclusively non-Jews staffing Hymie’s, they may think that Hyman still owns the shop and is hiring gentiles to operate the business for him. I discussed this shaylah with several different rabbonim and received different answers.

Here is another interesting maris ayin shaylah:

“I will be working in a town with very few observant people. There is an observant woman in town who lives alone, who will be away the entire time I am there. She is very willing to let me use her house while she is away. Is there a problem that people may not realize that she is away, and they might think that we are violating the prohibition of yichud – being secluded with someone of the other gender to whom one is not closely related?”

Rav Moshe Feinstein discusses this almost identical shaylah. Someone wants to sleep and eat at a widow’s house when she is out of town. Is there a concern of maris ayin, because people will think that he is staying at her house when she is home, and that they are violating the prohibition of yichud? Rav Moshe rules that it is permitted, reasoning that since there are many ways to avoid yichud, we need not assume that people will think that he is violating the halacha.^[20]

This is not Maris Ayin

Rav Moshe Feinstein notes that maris ayin does not include doing something permitted that people might mistakenly think is forbidden. Maris ayin means that someone thinks I violated something – he thinks that I misappropriated someone else’s money, washed clothes on Shabbos, ate something non-kosher, etc. However, it does not include doing something permitted that people might mistakenly think is forbidden.

Thus, Rav Moshe discusses whether there is any prohibition in traveling a short distance by car on Friday evening after candle lighting time, when you will certainly not come to desecration of Shabbos. He rules that one may do this, since there is no prohibition against doing work after candle lighting time, even if ignorant people think that there is.

Question # 4: My not-yet-observant cousin is making a bar mitzvah in a Reform temple. We have a good relationship, and he is very curious about exploring authentic Judaism. May I attend the bar mitzvah?

Rav Moshe rules that one may not enter a reform temple at the time people are praying there, because someone might think one prayed there, which is prohibited according to halacha. Alternatively, someone might erroneously learn from this person’s example that it is permitted to pray with them. Someone faced with the above predicament should discuss the issue with his rav, how to develop the relationship with his cousin, without entangling himself in any halachic issues.

Conclusion:

By examining the parameters of maris ayin, we become aware of the importance of the impression that our actions make. We cannot delude ourselves into thinking that it does not matter what others think of us. Our behavior must not only be correct, but also appear correct. In general, our lives should be a model of appropriate behavior and kiddush Hashem. Let others look at us and say, “He is a frum Jew – he lives his life on a higher plane of honesty, of dignity, and of caring for others.” — As Chazal say in Pirkei Avos: “Kol she’ruach habrios nocha heimenu ruach hamakom nocha heimenu,” One who is pleasing to his fellowman is pleasing to his Creator.

^[1] Mishnah and Gemara Shabbos 146b

^[2] Shekalim 3:2

^[3] Bamidbar 32:22

^[4] Shu’t Igros Moshe, Orach Chayim 4:82

^[5] Bava Basra 8b; Shulchan Aruch, Yoreh Deah 257:2

^[6] For further information on the mitzvah of judging people favorably, see Shaarei Teshuvah of Rabbeinu Yonah, 3:218.

^[7] Yam shel Shelomoh, Chullin 8:44; quoted by Taz, Yoreh Deah 91:2

^[8] Shu’t Igros Moshe, Orach Chayim 2:40

^[9] see Kesubos 60a

^[10] Kereisos 21b

^[11] Shu’t HaRashba 3:257

^[12] Rama, Yoreh Deah 87:3

^[13] Yoreh Deah 87:6

^[14] Shu’t Yechaveh Daas 3:59

^[15] Mishnah Avodah Zarah 21a

^[16] Avodah Zarah 21b

^[17] Orach Chayim 243:2

^[18] 243:2

^[19] see Mishnah Berurah 243:14

^[20] Shu’t Igros Moshe, Even HaEzer 3:19

Miriam recently asked me these two questions regarding avodah zarah:

1) I received some figurines from a museum shop which resemble various Egyptian gods. May I keep them to demonstrate at the Seder what silly gods the Egyptians worshipped?

2) My non-observant, but very respectful, father has a rather eclectic collection of various art objects — including a four-foot-tall bronze statue of some Hindu figure. Do I have any obligation to say or do anything?

Zev, a chess enthusiast, asked me the following:

3) “I just received a present of a very nicely carved chess set. Unfortunately, the king has a cross. May I keep the set as is, or must I break off the cross on the king?”

Jack, an archeology student, sends me an e-mail:

4) "As part of my studies, I will be joining a dig. What happens if we find an idol? Even though it is not worshiped today, would the mitzvah of destroying it still be applicable? Also, in examining the object, one has to gaze on and familiarize himself with the piece. Does this violate the prohibition of gazing at avodah zarah?"

Each of these actual shaylos that I was asked revolves around the question of whether a Jew may own an item that has idolatrous overtones, even though he has no idolatrous intention. Is this lack of intent sufficient to avoid any Torah violations?

As we will see, there are several potential shaylos that we must analyze to determine the halacha:

I. May a Jew look at an icon?

II. Does it make a difference whether it is still worshipped?

III. May a Jew own an icon that represents an idol, even if it was never worshipped?

IV. If owning this icon infringes on no other prohibitions, does it violate maris ayin, doing something that arouses suspicion?

In Parshas Eikev, the Torah commands: “Burn their carved gods in fire. Do not desire and obtain the silver or gold that is upon them, lest you become ensnared by it, for it is repugnant to Hashem your G-d. Nor shall you bring this abomination into your house; rather, you should ban it. Abhor it and revile it, for it is banned.”^[i]

This pasuk includes the following mitzvos:

1. Burn their carved gods in fire commands us to destroy avodah zarah.^[ii]

2. Do not desire and obtain the silver or gold that is upon them prohibits benefit even from the decorations on an idol.^[iii] One may not own or sell idols, even if one thinks that they are the silliest things on earth, since he gains financially or in other ways.

3. Nor shall you bring this abomination into your house bans bringing an idol into your house and also forbids benefiting from idolatry,^[iv] since this is considered "bringing" the idol into your use and possession.

4. Furthermore, the Torah states al tifnu el elilim, do not turn to idols.^[v] What is included in this proscription? Does it include looking at idols or images that represent idols?

The Sifra^[vi] quotes two interpretations of this verse. One prohibits studying idolatry, including its beliefs and how the idol is worshipped. A second approach understands the verse to forbid even looking at idols.^[vii] The poskim rule that both approaches are accepted halacha: the Torah thus prohibits studying idolatrous practices and beliefs, as well as looking at icons.^[viii] (The Rambam states that one receives malkus for violating this prohibition.^[ix] Therefore, someone who violates either interpretation of this mitzvah is halachically invalidated for providing testimony, even if he has no idolatrous intent.)

DOES THAT MEAN THAT EVEN GLANCING AT AN IDOL IS A TORAH VIOLATION?

The Magen Avraham^[x] explains that the Torah prohibits only gazing at an idol, but does not prohibit glancing at it: seeing it is not prohibited, but intentionally looking at it is.

THE ICON OR ONLY THE IDOL?

Is it prohibited to look at articles that merely represent the actual idol, even though they are not themselves worshipped (icons), or is the prohibition limited to idols that are themselves worshipped? The answer to this question depends on how one understands the following passage of Gemara.

One may not look at the image itself, even on weekdays, because one thereby violates ‘Do not turn to idols.’ How do we derive this law from this verse? Rav Chanin explained, ‘do not face figures created by man.’”^[xi] This unclear passage implies that one may not look at any image, even one not worshipped.

On the other hand, elsewhere, the Gemara praises the Talmudic scholar Rabbi Menachem ben Sima’ie as a holy man, because he never looked at the images that one finds on coins.^[xii] This implies that an especially holy person does not look at likenesses, but a person who observes halacha without stringencies may do so. Thus, we are faced with a seeming inconsistency: one Gemara statement prohibits looking at any image, the other implies that one may (although it is meritorious to avoid it).

The rishonim suggest many different approaches to explain the Gemara in Shabbos. Here are two differing approaches that resolve the above quandary in very different ways:

1. First opinion: Some contend that the prohibition of looking at an image applies only to one that was manufactured for worship, and the image on a coin is not worshipped. According to this opinion, although the Gemara seems to derive that one may not look at any portrait or image whatsoever, it really means to limit the prohibition to actual idols. Nevertheless, it is praiseworthy not to look at any portraits or images at all.^[xiii]

2. Second opinion: Others understand that one may not look at any image whatsoever.^[xiv] If this approach is correct, why does the Gemara in Avodah Zarah imply that Rabbi Menachem ben Sima’ie’s acts are meritorious, but not required, when the Gemara in Shabbos prevents looking at any image?

To answer this question, some authorities explain that although it is prohibited to look at any image, this applies only when one’s attention is diverted to the image. Since coins are in common use all the time, glancing at them is not considered a diversion.^[xv]

EGYPTIAN FIGURINES

Whether one may own a replica of an ancient Egyptian icon depends on the above-quoted dispute among the rishonim. According to the first opinion quoted above, since these icons were meant for educational purposes, rather than to encourage worship, it is technically permitted to look at them (although it is meritorious to refrain). On the other hand, according to the second opinion, even looking at these pieces violates the Torah’s mitzvah, since only items as common as coins are excluded. Certainly, owning these items is problematic.

How does the Shulchan Aruch adjudicate this question?

Surprising as it may seem, the two statements of Shulchan Aruch appear to contradict one another. In Orach Chayim^[xvi] he cites the above-mentioned Gemara in Shabbos in a way that implies that he prohibits looking at any image at all. On the other hand, in the laws on idolatry, he limits the prohibition to looking at bona fide, worshipped idols. We should also note that there he cites a different reason to prohibit looking at idols: enjoying the artwork is considered benefiting from idolatry.^[xvii]

However, the major commentators on the Shulchan Aruch in both places note that the accepted practice is to prohibit only icons manufactured for worship.^[xviii]

COLLECTING ICON STAMPS

A stamp dealer-collector asked Rav Moshe Feinstein whether he could own, buy and sell stamps that contain crosses and other idolatrous images. Rav Moshe ruled that since stamps are a common item, like coins, one may own or sell their images, and may also look at them. Rav Moshe mentions that it is meritorious not to, presumably for the same reason that Rabbi Menachem ben Sima’ie of the Gemara avoided looking at coins.^[xix]

ZEV’S CHESS SET

According to the reasons we have applied so far, Zev may be able to keep his fancy carved chess set. No one worships the cross on the king, and one could, perhaps, argue that this is familiar enough that no one is led astray by these pieces. As mentioned above, it is meritorious not to have any images at all, and certainly not to have anything that is reminiscent of idolatry. Thus, there is good reason for the custom to break off the cross of such chess pieces.

Miriam’s Dad’s Hindu statue involves a more serious halachic problem. Firstly, if this image was manufactured for worship, all opinions prohibit looking at it and having any enjoyment from it. Furthermore, if it was once worshipped, then several other Torah violations are involved, including that of having an avodah zarah in one’s house and benefiting from avodah zarah (because he enjoys looking at the artwork). In addition, there is a mitzvah to destroy it.

SHOULD WE ASSUME THAT THIS STATUE WAS WORSHIPPED?

Are we required to assume that the Hindu statue was worshipped? After all, it looks as if it was created as a collector’s item, not for worship.

The answer is that if this statue was manufactured in a place where images of this nature are worshipped, he must assume that this icon is a bona fide idol.^[xx]

IS IT MARIS AYIN?

In addition to the halachic problem of looking at these idols, the Gemara raises an additional factor to take into consideration:  Is there concern that someone might suspect that the owner worships them.^[xxi]

Are we, today, still concerned that someone might worship idols?

The answer to this question goes back to understanding the basics of maris ayin. Doesn’t the concept of maris ayin conflict with the mitzvah of judging people favorably? If everyone always judged others favorably, there would never be a reason for maris ayin. Yet, we see that the Torah is concerned that someone might suspect a Torah Jew of violating a mitzvah and judge him unfavorably.

Indeed, although people are required to judge us favorably, we are also not permitted to do something that others may misinterpret as violating halacha. Therefore, a person’s actions must be above suspicion. In other words, a person should not rely on his sterling reputation to allow him to do something that might be misinterpreted.

However, if circumstances dictate that people will assume that nothing wrong was done, there is no violation of maris ayin. (I have written a different article entirely on the subject of maris ayin in which I discussed these details.) Indeed, even in cases where there was maris ayin at the time of the Gemara, the prohibition is rescinded in places and times when the concern no longer exists.

Concerning maris ayin and the prohibition of avodah zarah, the poskim conclude that if no one worships these icons anymore anywhere in the world, one need not be concerned about suspicion that they are being worshipped.^[xxii] As long as these idols are worshipped somewhere, one must be concerned about maris ayin.

Thus, it makes a difference whether this particular idol is still worshipped somewhere in the world. Since, unfortunately, Hinduism is still being practiced in the world, one may not own an idol that they might worship, because of the prohibition of maris ayin, even if no other prohibition to its ownership exists. On the other hand, since no one worships the ancient Egyptian idols any more, it is not maris ayin to own these figurines.

TEACHING ANCIENT RELIGIONS

I mentioned above that the Sifra rules that studying idolatry, including the religious beliefs and how the idol is worshipped, is prohibited min hatorah as part of the mitzvah of al tifnu el elilim, do not turn to idols.

Does this include studying ancient religions or archeology? Does this prohibit reading mythology as a form of literature?

In Nisan 5740 (1960), Rav Yehudah Parnes, a prominent Rosh Yeshivah, asked Rav Moshe Feinstein a shaylah regarding an observant public school teacher, whose required ancient history curriculum included teaching the beliefs of ancient Greece and Rome. Rav Parnes inquired whether the fact that these religions are not accorded respect in the modern world validates studying and teaching their beliefs. Do we therefore permit teaching these religions, since one is pointing out how invalid they are, or is this teaching and studying still prohibited?

Rav Moshe rules that the prohibition of studying idolatry exists, regardless for what reason one studies the religion. This also prohibits reading mythology that includes idolatry, even as a study of ancient literature.

However, Rav Moshe contends that the Torah prohibits studying only what is authored by a proponent of the religion. One may study something written by someone who scoffed at the religion, just as we see that even the Torah sometimes describes the way idolaters worshipped in order to ridicule the practice. Rav Moshe rules that one may study these subjects only if the teacher derides their beliefs and does not have the students read texts written by those who believe in the idols.

Rav Moshe points out that the students may even benefit from this instruction, if they realize that, although most of the world’s population once accepted these ridiculous beliefs, this does not demonstrate that they are true. Similarly, the fact that millions of people accept certain other false notions as true is not evidence of their veracity.^[xxiii] Truth is not determined by democratic means!

In conclusion, in reference  to our original questions, Miriam may save the Egyptian figurines, although it is praiseworthy to dispose of them, but her father may not hold onto his Hindu statue, even as art, or in order to mock it. Zev may keep his chess set. Jack is prohibited from gazing at an idol that he unearths, and furthermore he would be required to destroy such an idol. Since I presume this could get him into trouble with the authorities, he would have a different question – is he required to destroy the idol, knowing that he may get into legal trouble? This is a topic for a different time.

Our belief in Hashem is the most basic of mitzvos. Praiseworthy is he who stays far from idols and their modern substitutes and directs his heart to Hashem.

^[i] Devarim 7:25-26

^[ii] Rambam, Hilchos Avodah Zarah 7:1.

We should note that this mitzvah is also mentioned in Devarim 12:2.

^[iii] Sefer HaChinuch, Mitzvah 428

^[iv] Rambam, Hilchos Avodah Zarah 7:2

^[v] VaYikra 19:4

^[vi] VaYikra 19:4

^[vii] Yerushalmi, Avodah Zarah 3:1

^[viii] Rambam, Hilchos Avodah Zarah 2:2; Sefer HaMitzvos, Lo Saaseh #10; Chinuch #213

^[ix] Sefer HaMitzvos, Lo Saaseh #10

^[x] 307:23

^[xi] Shabbos 149a

^[xii] Avodah Zarah 50a

^[xiii] Tosafos, Shabbos ad loc.

^[xiv] Rashi; Tosafos Rid

^[xv] Tosafos, Avodah Zarah 50a

^[xvi] 307:16

^[xvii] Shulchan Aruch, Yoreh Deah 142:15, quoting Rabbeinu Yerucham

^[xviii] Shach; Magen Avraham

^[xix] Shu’t Igros Moshe, Yoreh Deah 1:69

^[xx] Rama, Yoreh Deah 141:3 and Shach ad loc. 17

^[xxi] Avodah Zarah 43b

^[xxii] see Rama, Shach, and Gra, Yoreh Deah 141:3

^[xxiii] Shu’t Igros Moshe, Yoreh Deah 2:53

Although a good quality pair of tefillin should last a lifetime, the straps on the tefillin do wear out and need replacement periodically.

Of what are Tefillin made?

All parts of tefillin and all other devarim she’bi’kedusha (holy items) must come from kosher species, although not necessarily from an animal that was slaughtered in a kosher way (Shabbos 108a; Shulchan Aruch, Orach Chayim 32:12). The different parts of tefillin come from dissimilar parts of the hide of the animal, the variation being the thickness of the hide and how it is processed.

Tefillin have three major components:

1. The Parshiyos (singular, parsha). These are the parchments, which are the processed skin on which the sofer carefully writes the four sections of the Torah that are inserted into Tefillin. For the tefillin shel yad (arm tefillin), all four parshiyos are written on one piece of parchment, whereas for the tefillin shel rosh (head tefillin), each parsha is written on a separate piece of parchment.

2. The Batim (singular, bayis). These are the housing of the parshiyos and are made from thick hide. The bayis itself has three subcomponents. (a) The Ketzitzah, the cube-shaped box inside which the parshiyos are placed. (Note that it is perfectly kosher and sometimes preferred for the height of the ketzitzah to be greater than its other two dimensions; however, most pairs of tefillin are made with a cubic ketzitzah. I have written another article in which I explained this issue more thoroughly.)  (b) The Titura, the square base on which the ketzitzah rests. (c) The Ma’avarta (Aramaic for “bridge”), the extension of the titura through which the straps are inserted. In good quality tefillin, the entire bayis, that is the ketzitzah, titura, and ma’avarta, are all made from one piece of hide.

3.  The Retzuos (singular, retzua), the straps, which are made from softer leather than that used for the batim.

For the sake of Tefillin!

Tefillin must be manufactured “lishma,” for the sake of the mitzvah. In practical terms, this means that an observant Jew begins each process and declares that the production is for the sake of the mitzvah of tefillin (Shulchan Aruch, Orach Chayim 32:8).

The contemporary process of tanning hide for parchment, batim and straps is a multi-stage process, similar to the method used to tan leather for mundane uses, such as belts, shoes and handbags. However, as I mentioned above, the parchment, batim and straps for tefillin must be tanned lishmah, for the sake of the mitzvah (Shulchan Aruch, Orach Chayim 32:37 and 33:3). For this reason, it is preferable that each step be performed, or at least begun, by an observant Jew lishma. Because of this, one of the questions to be ascertained when purchasing tefillin is to what extent an observant Jew was involved in the processing of the hide. This issue impacts on the question of machine-made vs. handmade retzuos, which I will discuss shortly, and on many other important questions of tefillin manufacture.

Painting

After the tanning of the retzuos is completed, they are painted jet-black to fulfill a halacha le’Moshe mi’Sinai (Menachos 35a). The paint used may contain only kosher ingredients, and the painting of the retzuos must also be performed lishmah (Mishnah Berurah 33:18).

Is there a halachic preference for handmade retzuos?

In earlier days, tanning retzuos and other leather items involved salting the hide and then soaking it in lime wash. Today, although both salt and lime are used in the tanning process, most of the tanning of retzuos is usually accomplished by the gradual, automatic adding of other chemicals to the soaking leather after the salt and lime have been rinsed out. Thus, although early poskim ruled that placing the lime into the water lishmah is sufficient to make retzuos lishmah, this may not be true today. For this reason, most contemporary poskim rule that one should use “avodas yad” retzuos, meaning that the extra chemicals added to the water were done lishmah by a Torah-observant person (Zichron Eliyahu). However, most retzuos sold for tefillin are not avodas yad.

According to my information, most retzuos are painted by transporting them on a conveyor belt through a large, electrically powered paint sprayer. This provides an additional reason to use only avodas yad retzuos. Most Torah-observant Jews use hand matzos for the seder because of concern that machine matzos are not considered lishmah. (I am not ruling that machine matzohs are a problem for Seder use. Most poskim contend that they are fine.) In all likelihood, the manufacture and painting of machine made retzuos has greater halachic concerns than the shaylos involved in machine matzos, because of several facts, including that the processing of retzuos is not one continuous process, as I explained above. (In addition, there are and were halachic authorities who preferred use of machine matzohs because they are baked much faster, and therefore might reduce the chance of chometz. This is not a factor in the manufacture of tefillin retzuos – there is only an advantage to use of handmade retzuos, and, to the best of my knowledge, no disadvantage.) When one realizes that the mitzvah of eating matzah is only once a year, yet most people use only hand matzohs rather than machine-made, whereas the tefillin will IY”H be worn daily for decades, I believe the choice is obvious.

Checking one’s retzuos

It is important to check periodically that the retzuos on one’s tefillin are still completely black and are not cracked or faded. The Mishnah Berurah, whom many people consider the final halachic authority in these areas of halacha, rules that the entire length of the retzua must always be black (Biur Halacha 33:3 s.v. retzuos). (There are authorities who disagree, most notably Rav Yosef Chayim Sonnenfeld, who contend that it is adequate if most of the retzuah is black.) Also check that the retzuos are black all the way to their tip. Be particular to check that they are black near where the knot is tightened, because at that point the paint often rubs out. One should also check that the retzua is still wide enough near the knot and that the knot of the shel yad is touching the ketzitzah of the tefillin. If it is not, this can be corrected by a knowledgeable sofer.

While checking the retzuos, check that the batim, titura, and stitches are all perfectly square. This means that the width and the length appear to be the same length to the naked eye, and that there are no dents, nicks, or projections along the sides or in the corners of the bayis. The back corners of the batim often become rounded because of hats or taleisim that are constantly rubbing against them.  By the way, the edges of the Ma’avarta do not need to be square.

If the stitch of the titura is not taut or it loops in the middle, it is not kosher, and you should contact your batim expert. With time or damage, the stitches often loosen or move, or the batim get banged or nicked and are no longer properly square. Your local batim expert has the equipment and know-how to repair them.

Know a batim macher or batim repair expert. Every major Jewish community should have at least one person who is trained and has the equipment to repair batim. Just as the community has shatnez testers, a mohel, a butcher, a mikvah for dishes, sefarim stores, and talmidei chachamim who are trained to check mezuzos, a community must have a talmid chacham who is trained properly in the repair of batim.

If the retzuos are no longer fully black, blacken them with kosher tefillin paint. Everyone who wears tefillin should have access to kosher tefillin paint or markers.

Depending on where you live, this might be an easy item to purchase and usually comes either in a pen looking like a marker or in a small container reminiscent of correction fluid.

If someone’s retzuos are cracking in several places, he should consider replacing them.

Before painting the retzuos, one must state that he is doing it l’sheim kedushas tefillin. I once wrote a halachic teshuvah (in Hebrew) in which I concluded that someone who painted the faded parts of their retzuos, but forgot to say that they were doing it lishma, has not invalidated the tefillin and they may be worn as they are. Still, one should lechatchilah (the preferred way) be careful to say that one is blackening them l’sheim kedushas tefillin.

Must the side of the retzua be black?

The side of the retzua that lies on the skin need not be dyed at all. There is an opinion that the edges of the retzuos should also be painted black (Keses HaSofer 23:2). However, this opinion is not accepted in halachic practice (see, for example, Mishnah Berurah 33:24 quoting Pri Megadim in Eishel Avraham 33:7).

Thoroughly black

Some manufacturers of tefillin retzuos soak the entire leather in a kosher black solution so that the entire thickness of the strap is now black. From my own observation, how black the inner part of the retzua gets when this is done varies tremendously from batch to batch. Although I see no halachic requirement in this additional process, there is a practical advantage that is up to the consumer to decide. As the retzuos age, they develop more cracks. If the retzua was originally soaked in black solution, then when the leather cracks, the retzua still appears black and does not require painting. However, if the retzua is not soaked, the cracked area now appears light colored and requires painting. I have found constantly checking to see whether my retzuos are still black to be annoying, and therefore, when I purchase retzuos, I ask for those that have been soaked black to avoid this issue. From a consumer perspective, I think the added price is worthwhile, because it is probable that these retzuos can be used for a longer period of time before they become so difficult to paint constantly that one replaces them.

How wide are my retzuos?

The retzuos should be about ½ inch wide. When purchasing new retzuos, they should be wider, so that they remain the proper width even after they become stretched out.

Where should I buy my tefillin?

The individual selling tefillin and tefillin accessories (such as replacement retzuos) should be a halachically reliable person, and preferably a talmid chacham. Furthermore, he should be fully familiar not only with the halachos of tefillin, but also with the details of tefillin manufacture. From my personal experience, it is not uncommon that a person selling tefillin, although extremely ehrlich, is totally unfamiliar with the halachic issues and concerns involved. Unfortunately, many sofrim and rabbanim lack sufficient training in the practical details of tefillin manufacture.

Where not to buy your tefillin!

I’ll share with you one frightening story of my personal experience. I was once "tipped off" by someone about a manufacturer of tefillin batim who was personally not observant. Shortly thereafter, I realized that an errand would require me to be in the same city in which this manufacturer was located. I presented myself to the owner, who was clearly not observant, as a rabbi from America looking for a supplier for tefillin for his congregation, but who would like to familiarize himself with the process of how tefillin are made. One might think that the manufacturer might be interested in the possibility of making some sales, but, indeed, he would not even let me past his front door! When one realizes the myriad details involved in tefillin manufacture that require yiras shamayim, one grasps how unlikely it is that these tefillin were kosher. Yet, lots of people are purchasing these tefillin.

Ask for what you want

Assuming that one is purchasing tefillin from someone familiar with the halachos and practical aspects of tefillin manufacture, be specific what level of tefillin kashrus you are looking for. If you don’t tell him that you want tefillin that are kosher lechatchilah, you might receive tefillin that only meet the very minimum standards of kashrus. A person who discriminately buys food with high kashrus standards should not settle for less when purchasing tefillin. Such a person should order “kosher mehudar tefillin,” or “kosher tefillin with extra hiddurim.” These descriptions may also affect other questions that we have not discussed in this article, such as the quality of the writing of the parshiyos or the source of the batim.

How to maintain your tefillin

Maintaining your tefillin is fairly easy. Never leave your tefillin in direct sunlight, in a very hot place, or inside your car during the daytime. As much as possible, your hair should be dry while wearing your tefillin. Protect the corners of the batim by leaving the cover on the shel yad. (It should be noted that some poskim contend that one should not place these covers on the shel yad while one is wearing them or while making the bracha. However, since most poskim permit leaving these covers on, one may be lenient.)

Tefillin are one of the special signs that Hashem gave the Jewish people, and we should certainly excel in treating this mitzvah with the appropriate dignity. When Yidden request that their tefillin be mehadrin only, they demonstrate their reverence for the sign that bonds us to Hashem.

When Noach offered his korbanos after the Mabul, Hashem promised that the days of the earth will never again be changed, and that day and night will never cease. But exactly when does day end and night begin?

Quiz Question #1:

Mrs. Yunger* gave birth to two healthy twin boys, each of whom had his bris on the first day that halacha mandates, yet the younger Yunger had his bris several days earlier than his older brother. How can this happen?

Question #2:

Moshe Litvag* asks me: "I have often wondered why my chassidishe brother-in-law davens mincha after sunset, when the Mishnah Berurah rules that one should not daven this late!"

Question #3:

"My sister and I live in the same yishuv (community), and the nearest hospital is Laniado in Netanya. She went into labor on Shabbos and left for the hospital. Immediately after Shabbos I phoned the hospital to find out how she was and whether she had a boy or a girl, and was told by the gentile receptionist that she could not put the call through until after ‘Rabbeinu Tam’ time arrives, which would not be for another half an hour. Why was the gentile receptionist so frum?"

Why Did the Younger Yunger have an Earlier Bris?

Although a bris that transpires on the eighth day of the child’s life supersedes Shabbos, when a baby is born during bein hashemashos, a halachic "twilight zone" which is uncertain whether it is part of the previous day or the next one, his bris cannot transpire on Shabbos. If the older Yunger was born during bein hashemashos on Friday evening – then we cannot perform his bris on either Friday or Shabbos, and his bris is postponed to Sunday. Moreover, if Yom Tov follows Shabbos, then his bris will be delayed even more. However, his younger brother was born at a time that was certainly Shabbos, and therefore, his bris took place on Shabbos. Thus, younger Yunger had his bris before older Yunger.

When is Twilight?

When is bein hashemashos?

We all are aware that the Jewish date begins at night. But at what exact moment does one day end and another begin? Do we know the precise instant when one day marches off into history, and its successor arrives with its banner unfurled?

A verse in the book of Nechemiah might help resolve this question. There it describes the unenviable circumstances in which the Jews were rebuilding the Second Beis Hamikdash while protecting themselves from the enemies who were determined to thwart its erection: And we were continuing the construction work from daybreak until the stars come out [tzeis hakochavim] while half our men were holding spears… and at night we were on guard, while in the day we could proceed with the work (Nechemiah 4: 15- 16). Nechemiah implies that "night" begins from when the stars emerge, and the time of dusk until they materialize is still considered the previous day (see Berachos 2b; Megillah 20b).

However, we still require more definition. Which stars? Can we pinpoint the moment that the stars come out, since the stars of the firmament do not all become visible at the same time?

Additional confusion is caused by a different verse that implies that the day ends when the sun sets, as the Torah (Vayikra 22:7) proclaims: And when the sun sets, he shall become pure, stating that the final stage of purification from some types of tumah is the sunset after immersion in a mikveh. However, at sunset no stars are yet visible. Thus, this verse implies that the changing of the day transpires at sunset, not when the stars appear (see Berachos 2b).

What a Phenomenal Dusk!

Is there any discussion in the Gemara that can "shed light" on our question? Indeed, there are several passages, and much literature is devoted to understanding them. One passage (Shabbos 34b) describes certain celestial phenomena that define when bein hashemashos begins and when it ends. The commentaries debate exactly what occurrences are being described, and, unfortunately, we derive little usable information from this passage.

When Three Stars Appear

Another passage indicates that the end of the day is determined by the appearance of stars. When one star appears, it is still day. When two appear, it is bein hashemashos, and when three appear, it is night. Not large stars that appear even in the day, and not small stars that first appear at night, but middle-sized stars (Shabbos 35b).

Now the job appears easy. Let us look at the darkening firmament this coming evening and count stars!

I am sure at times you have tried. Ever spent Shabbos on a camping trip and attempted to determine the end of Shabbos by stargazing? How did you decide which stars are considered "small," "large" and "middle-sized"? And this is assuming that one does not need to deal with light pollution!

Perhaps, locating a Gemara discussion that indicates more objective criteria, such as units of time, may be more helpful in our search to determine the end of day. Does such a discussion exist in the Gemara?

Yes it does — and not only one passage, but two. However, the two passages appear contradictory!

Conflicting Gemara Passages

The Gemara in Pesachim (94a) states that the time between shekiyah, a word usually translated as sunset, and tzeis hakochavim equals four mil, which, we will assume, is 72 minutes. (This concurs with the more obvious way of explaining the opinion of the Terumas Hadeshen [#123] and the Shulchan Aruch [Orach Chayim 459:2; Yoreh Deah 69:6 with Shach] that a mil used as a unit of time equals 18 minutes.) However, a different passage of Gemara, in Mesechta Shabbos (34b), quotes a dispute in which Rabbah states that nightfall occurs three-quarters of a mil, or 13 1/2 minutes, after shekiyah, and Rabbi Yosef rules that it transpires a bit earlier, two-thirds of a mil, or 12 minutes, after shekiyah. Obviously, we need to explain why one Gemara states that nightfall occurs 72 minutes after shekiyah, and another states that it occurs only 12 or 13 1/2 minutes after shekiyah!

Rabbeinu Tam’s Explanation

Among the many resolutions to this conundrum, the two most commonly quoted are those of Rabbeinu Tam and that of the Gr"a. Rabbeinu Tam contends that these two passages of Gemara are using the word "shekiyah" to refer to two different phenomena which occur about an hour apart. The Gemara in Pesachim uses the term shekiyah to mean sunset — when the sun vanishes beyond the western horizon. Rabbeinu Tam refers to sunset as techilas shekiyah, literally the beginning of shekiyah. However, when the Gemara in Shabbos refers to "shekiyah," it does not mean sunset, but a point in time about an hour later when virtually all light of the sun’s rays is dissipated from earth. Rabbeinu Tam refers to this later time as sof shekiyah, literally the end of shekiyah, and in his opinion, until sof shekiyah occurs, it is still halachically day, notwithstanding the setting of the sun and the appearance of hundreds of stars in the firmament. All these stars are considered "large stars" whose appearance does not demonstrate that the day has ended. Only at sof shekiyah does it become bein hashemashos, the time when we are uncertain whether it is day or night. At sof shekiyah, bein hashemashos has begun, meaning that now there are two, but not three, visible "middle-sized" stars, and we await the appearance of the third "middle-sized" star to know that it is now definitely night. (However, cf. Minchas Kohen for a variant understanding of Rabbeinu Tam’s position.)

Since according to Rabbeinu Tam it is definitely still day until about an hour after sunset, many authorities contend that there is no problem with davening mincha considerably after sunset (however, note that Rabbeinu Yonah ruled differently, even according to Rabbeinu Tam). Thus, there are communities who base themselves on this approach and daven mincha well after sunset.

Rabbeinu Tam and a Friday Night Birth

According to Rabbeinu Tam, a baby born 58 minutes after sunset on Friday evening, and certainly any time earlier, was born halachically on Friday and not on Shabbos. In Rabbeinu Tam’s opinion, this baby’s bris takes place the following Friday. A baby making his appearance a bit later is considered to be born during bein hashemashos and cannot have his bris on Shabbos because maybe bein hashemashos is still Friday — which makes Shabbos his ninth day of life. This bris will be postponed to Sunday. However, if he is born a bit later on Friday evening, at a time when it is definitely Shabbos, then the bris is performed on Shabbos

It goes without saying that according to Rabbeinu Tam, one may not perform any melacha on Saturday night until a considerable time has passed after sunset. There are various opinions exactly when Shabbos is definitely over according to Rabbeinu Tam, but most people assume that Shabbos is over by 72 minutes after sunset (Biur Halacha).

By the way, at this point we can answer our third question above: why the telephone lines at Laniado hospital are not open to non-pikuach nefesh related calls until more than a half hour later than the time Shabbos ends according to most calendars. The founder of the hospital, the Klausenberger Rebbe, insisted that Shabbos be observed at the hospital until it is over according to Rabbeinu Tam.

The opinion of the Gr"a

Since we know that many highly observant Jews do not wait this long for Shabbos to end, there must be another way of interpreting the two passages of Gemara that reaches a different halachic conclusion. Indeed, one such approach is presented by the Gr"a, who follows a completely different approach as to why the Gemara in Pesachim states that tzeis hakochavim does not occur until 72 minutes after sunset, whereas the Gemara in Shabbos has tzeis hakochavim occurring much earlier. The Gr"a contends that both passages use shekiyah to mean sunset, and this is the same sunset to which we customarily refer — however, they are not referring to the same tzeis hakochavim. The Gemara passage in Pesachim that refers to tzeis hakochavim being 72 minutes after sunset means that all visible stars of the firmament can now be seen, a time that the Gr"a calls tzeis kol hakochavim, literally, when all the stars have appeared, whereas the Gemara in Shabbos refers to the time at which three "middle-sized" stars are visible. The Gr"a concludes that sunset begins the time of bein hashemashos, the time when we are uncertain whether it is day or night, with tzeis hakochavim occurring when three "middle-sized" stars are visible. The Gemara in Pesachim that requires 72 minutes until the stars appear is not discussing when the day ends — the day ended much earlier — but is concerned about when all remnants of sunlight vanish.

According to the Gr"a’s opinion, once sunset arrives on Friday, it may already be Shabbos, and we therefore refrain from performing any melacha from this time, and consider this time to be already bein hashemashos. In the Gr"a’s opinion, a baby born after sunset Friday will have his bris performed on Sunday a week later unless he is born after three "middle-sized" stars appear, in which case (assuming that the baby is healthy) his bris will be performed on Shabbos. (In practice, since we are uncertain exactly which stars are called "middle-sized," we wait a bit longer, see Biur Halacha to 393.) According to Rabbeinu Tam, this same baby would have his bris performed on Friday unless he is born at least 58 1/2 minutes after sunset. If he is born between 58 1/2 minutes and 72 minutes after sunset Friday evening, according to the Gr"a his bris is on Shabbos, whereas according to Rabbeinu Tam his bris will be on Sunday. Both agree that a baby born later than this on Friday evening will have his bris performed on Shabbos.

The Gr"a rules that one should not daven mincha after sunset, since this is already a time at which the previous day may have already passed. Thus, it is already time to daven maariv.

How do we rule?

Although in the past there were Torah communities which did not follow the Gr"a at all, even regarding the onset of Shabbos, today, it is universally accepted to consider it Shabbos from sunset on Friday. Many communities follow the Gr"a’s opinion fully, and do not wait until 72 minutes after sunset on Saturday to end Shabbos. In a responsum on the subject, Rav Moshe Feinstein took great umbrage to this approach, contending that since a large number of Rishonim followed Rabbeinu Tam’s approach, one should act stringently and not end Shabbos until after "Rabbeinu Tam time" is over (Igros Moshe, Yoreh Deah 4:17:26).

*all names have been changed to protect privacy

Does a publisher have rights protecting him so that he has the opportunity to recoup his investment? Assuming that such rights exist, do they apply in all cases, or only if it is a new publication? For how long are his rights protected?

Does the Torah have a concept of intellectual property rights, meaning that someone who creates or invents an item is owner of his invention?

WHAT RIGHTS DOES THE PUBLISHER HAVE?

One of the earliest published responsa on this subject deals with a very interesting sixteenth century case. One of the gedolei Yisrael of the time, the Maharam of Padua, Italy, entered a partnership with a non-Jewish publisher in Venice to produce a new edition of Rambam. Maharam invested a huge amount of time checking and correcting the text for this edition, included notes of his own, and apparently also invested significant amounts of his own money in the undertaking. A competing publisher, also a non-Jew, produced an edition of Rambam (without Maharam’s corrections and notes) at a greatly reduced price, apparently out of spite that Maharam had engaged his competitor. It appears that the second publisher might have been selling the set of Rambam at a loss with the intent to ruin the Maharam financially. The halachic question was whether an individual may purchase the less expensive edition of the second publisher.

The shaylah was referred to the Rama for decision, who ruled that the second publisher’s actions constitute unfair trade practices. Rama prohibited purchasing or selling the competing edition, until the Maharam’s edition was sold out. Realizing that the non-Jewish publisher would not obey his ruling, Rama reinforced his ruling by placing a cherem (decree of excommunication) on anyone selling, buying or abetting the sale of the competing edition (Shu”t Rama #10). This was an effective way of guaranteeing that Jews did not purchase the less expensive (but inferior) edition.

The Rama’s ruling established a precedent. Subsequent to Rama’s ruling, it became common practice for publishers to include in their works a cherem (plural: charamim) from a well-known posek banning the publishing of the same sefer, usually for a period of six to twenty-five years. As a matter of fact, these charamim were the main reason why publishers sought haskamos when they published seforim. The purpose of the haskamah was that they included charamim, to make it financially worthwhile for the publisher to invest the resources necessary to produce the sefer. Thus, these charamim encouraged publishing more seforim and the spread of Torah learning.

Generally, these charamim protecting the publisher’s rights were accepted and obeyed. However, in the early nineteenth century, an interesting dispute arose between the Chasam Sofer, the Rav of Pressburg, and Rav Mordechai Benet, the Rav of Nikolsburg, germane to the production of the famous Roedelheim machzorim. Two competing editions of these machzorim were produced, the first by Wolf Heidenheim, who had invested much time and money gathering and comparing the texts in old editions and manuscripts. A Jewish publishing house located in a different city subsequently published a competing edition. Prior to Heidenheim’s issuing the machzorim, several prominent rabbonim had issued a cherem banning other publishers from competing.

The Chasam Sofer prohibited the second publisher from selling his machzorim and similarly banned people from purchasing them (Shu”t Chasam Sofer, Choshen Mishpat #41, #79). In his opinion, this case is halachically comparable to the edition of Rambam produced by the Maharam Padua.

Rav Benet disagreed, contending that there were several key differences between the cases. In his opinion, it is unnecessary to guarantee publication of machzorim by issuing charamim. Machzorim are a common item, and publishers know that they will profit from producing them. Thus, the entire purpose for which these charamim were created, to guarantee the production of seforim, does not apply. Furthermore, since non-Jewish publishers will certainly produce machzorim, issuing a cherem against competition will benefit the non-Jewish publishers, who will be faced with less competition, more than it will benefit a Jewish publisher, such as Wolf Heidenheim. In addition, Heidenheim’s first edition had already sold out, and charamim traditionally ended when the edition was sold out, assuming that one edition was sufficient to guarantee a publisher sufficient profit to make it worth his while. In addition, Rav Benet questioned whether the system of charamim was still appropriate, once the government had established its own rules and laws of copyright infringement (Shu”t Parashas Mordechai, Choshen Mishpat #7, 8).

The Chasam Sofer countered that since Heidenheim had invested time and money in checking and correcting texts, his business interest should be protected to a greater degree, and that Heidenheim should qualify under a special halachic dispensation allowed for those guaranteeing that Torah texts are accurate (see Kesubos 106a). As a result, the Chasam Sofer contended that Heidenheim’s monopoly should be allowed for the entire twenty-five years decreed in the original cherem, even after he had sold out his first edition.

DOES HALACHA RECOGNIZE INTELLECTUAL PROPERTY AS OWNERSHIP?

This shaylah came to the forefront in the middle of the nineteenth century, also as a result of a din torah. Around 1850, a printer named Yosef Hirsch Balaban published a large-size edition of Shulchan Aruch with major commentaries, accompanied for the first time by the anthologized commentary, Pischei Tshuvah. Balaban was sued in beis din by a printer named Avraham Yosef Madfis who claimed to have purchased exclusive rights to Pischei Tshuvah from its author. (I am uncertain whether "Madfis" was indeed his family name, or whether this referred to his profession.) At the time, Pischei Tshuvah had been printed only once, in a small-size edition, including only the Shulchan Aruch and one other commentary, the Be’er Heiteiv. Madfis claimed that Balaban had violated his (Madfis’s) exclusive ownership rights to Pischei Tshuvah.

The Rav who presided over the din torah, Rav Shmuel Valdberg of Zalkava, ruled in favor of Balaban for the following reason. The original edition of Pischei Tshuvah did not include any statement placing a cherem against someone printing a competing edition. Rav Valdberg contended that this voided any copyright on Pischei Tshuvah. Furthermore, Rav Valdberg included two more reasons to sustain his ruling. One, the original edition of Pischei Tshuvah was no longer available. Thus, even had a cherem banned a competing edition, it would have already expired once the first edition had sold out. Second, even if the first edition was still available for sale, Balaban’s reproducing Pischei Tshuvah as part of a multi-volume set of Shulchan Aruch was not competition for the original edition, where Pischei Tshuvah had been published as a small, presumably inexpensive sefer. Rav Valdberg reasoned that no one interested in purchasing Pischei Tshuvah would likely purchase Balaban’s edition of Shulchan Aruch just for that purpose; instead he would buy the small edition (assuming it was available). Thus, he did not consider Balaban’s edition to be unfair competition for those looking to purchase Pischei Tshuvah.

According to Rav Valdberg’s analysis, the author of Pischei Tshuvah has no greater ownership to his work than someone publishing a different person’s work. His latter two arguments, that the first edition was already sold out and therefore the cherem expired, and that the multi-volume set does not compete with the one volume edition, would both be preempted if we assume that the author retains ownership over his work. Thus, Rav Valdberg did not believe that halacha recognizes intellectual property rights.

The Sho’eil uMeishiv (1:44) took issue with this point. In a letter addressed to Rav Valdberg, which he subsequently published in his own responsa, he contended that the author of a work is its owner. Thus, Pischei Tshuvah retains his rights as author/owner whether or not a cherem was declared against competition. A cherem is to guarantee a publisher enough time to recoup his investment. An author is an owner, not an investor, and maintains ownership over the item produced, which he is entitled to sell, regulate, or contract. This is called intellectual property rights.

Upon reading the Sho’eil uMeishiv’s ruling, Rav Yitzchok Shmelkes, wrote him that he disagreed with Sho’eil uMeishiv’s reasoning (Shu”t Beis Yitzchok, Yoreh Deah 2:75). Beis Yitzchok contends that halacha does not recognize intellectual property rights as inherent ownership. In Beis Yitzchok’s opinion, the author has a right of ownership, but only because it is accepted by government regulation, which is termed dina dimalchusa dina, literally, the law of the government is binding. Although halacha does not usually accept non-Jewish legal regulations, a civil law established for the wellbeing of society is usually accepted. Since intellectual property rights encourage initiative and invention that are in society’s best interests, halacha accepts these ownership rights to the extent that they are recognized by civil law.

There are several key differences between the position of Sho’eil uMeishiv and that of Beis Yitzchok. According to Sho’eil uMeishiv, the ownership of an author exists forever, just as any other property that he owns. Upon his passing, they are inherited by his heirs, just like his other property. However, in Beis Yitzchok’s opinion, the ownership rights extend only according to what is established by government regulation and expire after a number of years. Moreover, in most countries, a copyright is valid only if registered, and it must also be indicated in the published work. Presumably this was not true in the Beis Yitzchok’s place and time, since he applied civil copyright law to Pischei Tshuvah, even though the author had not indicated any copyright in the sefer.

Thus, whether halacha recognizes intellectual property ownership is disputed.

Some authorities rally evidence that the Chofetz Chayim agreed with the Sho’eil uMeishiv’s position. The Chofetz Chayim left specific instructions detailing who owns the publishing rights to his seforim after his passing. He instructed that his seforim on loshon hora could be freely republished, and that Mishnah Berurah may be published by anyone, provided that 4% of its volumes printed are donated to shullen and batei medrash. However, he stipulated that most of his seforim could not be republished without permission of his family members, and that the proceeds from such publication should succor his widow for the rest of her life. Chofetz Chayim’s instructions imply that he considered his ownership to be in perpetuity. Furthermore, Chofetz Chayim did not publish any words of cherem or copyright inside his seforim. Thus, he seems to have presumed ownership over future editions of seforim on the basis of intellectual property (Shu”t Minchas Yitzchok 9:153), although it is possible that he based it on dina dimalchusa dina, following the opinion of Beis Yitzchok.

If one reads the haskamos on sefarim, published from the time of the Rama until the close of the nineteenth century, one notices that this dispute between the Sho’eil uMeishiv and the Beis Yitzchok seems to have been fairly widespread. For example, when the Chavos Yair published his own responsa, all the haskamos allow his copyright rights against someone else publishing his own responsa for a limited period of time. According to the Sho’eil uMeishiv’s opinion, the Chavos Yair should have owned these rights forever!

On the other hand, when a new edition of Shu"t Rivash was published in the 1870′s, it included a very extensive index that included all the places that the Rivash is quoted by the Beis Yosef and other halachic authorities. The edition contained three haskamos: from the Netziv, from Rav Yitzchak Elchanan Spector and from the Malbim. All three include a cherem against anyone publishing the Shu"t Rivash for six years, but explicitly mention that the ownership of the newly created index is the property of the publisher forever and may not be reproduced without his permission. They clearly are recognizing intellectual property rights in halacha.

Thus, we see interesting historical precedent both in favor of and in opposition to whether halacha recognizes intellectual property. Some of these factors are included when debating the role of copyright violation in halacha today.