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

Question #1:

Chaim knows that, as the head of the family, he has the responsibility to care for his wife, Fruma, and their children. He feels that this responsibility obligates him to acquire an adequate amount of life insurance should something chas veshalom happen to him. Fruma’s upbringing was that even discussing this matter can cause bad things to happen. Who is right – Chaim or Fruma?

Question #2:

Miriam calls her rav with a shaylah. "My husband and I would like to buy life insurance, but we’re concerned that it might show a lack of bitachon that Hashem always does what is best for us. Is that correct?"

Question #3:

Tzadok is one of the city’s biggest tzaddikim. He teaches, voluntarily oversees some local tzedakah projects, not to mention his incredibly solid kevi’us itim.  He is a talmid chacham and is raising his own large family. One of the ba’alei batim has offered to purchase a life insurance policy on his behalf, but Tzadok questions whether doing so might jeopardize him, since his family would no longer be dependent on his support. Is his fear founded?

Answer:

At times we have heard someone opposing life insurance –claiming that it reflects a lack of bitachon, or that its acquisition could actually be to one’s detriment. Let us understand what the halachic authorities say about this subject. Indeed, are there halachic or hashkafic concerns about purchasing life insurance? From a Torah perspective, should this practice be encouraged or discouraged ?

The three situations I presented above demonstrate three different issues that poskim discuss when analyzing whether there is a halachic problem in purchasing life insurance. They are:

I. Creating a Devil’s Advocate

The Gemara^[1] states that one should not say something that might cause evil to occur. Al yiftach adam piv l’satan – Do not create an opportunity for Satan to mix in! Is purchasing life insurance not considered encouraging the evil Satan to do something nefarious?

II. In G-d We Trust

If we really believe that Hashem provides for all of our needs, doesn’t purchasing life insurance demonstrate that we are worried about the future and lack trust in Hashem?

III. Succeeding in Divine Judgment

As opposed to a human court, Hashem’s judgment and decisions are perfect, and take all ramifications into consideration. The Heavenly Tribunal will not recall someone unless all the consequences of his disappearance are calculated. Based on this, perhaps purchasing life insurance jeopardizes the insured, since his family is no longer as dependent on his support, thus minimizing the merits he has when judged by the Heavenly Tribunal?

Let’s analyze each one of these issues individually, in order to determine whether or not purchasing life insurance should be allowed or even encouraged.

Issue #1 — Creating a Devil’s Advocate

Al yiftach adam piv l’satan literally translates as, “A person should not open his mouth for Satan.” One should be careful not to say something that might provide Satan with ammunition. The Gemara^[2] applies this rule to forbid a person from saying, “I sinned a lot, but Hashem has not punished me." The admission that one is guilty and deserves punishment gives Satan a chance to prosecute one in the Heavenly Tribunal. According to the Magen Avraham,^[3] the main concern here is that the words "Hashem has not punished me" imply that one anticipates the punishment, although this is clearly not what the speaker intends. However, when Satan prosecutes, he might take the speaker’s words out of context.

The question is whether purchasing life insurance provides Satan with such an opportunity to prosecute.

A different Talmudic discussion implies that it is absolutely permissible to make arrangements for oneself in the event of one’s demise, and that doing so is not considered opening one’s mouth to Satan. The Gemara^[4] discusses whether someone who prepares for himself shrouds (tachrichim) that are four-cornered is required to attach tzitzis to their corners, implying that it is, indeed, permitted to prepare shrouds for oneself. In other words, planning for one’s death does not constitute violating the warning al yiftach adam piv l’satan and does not provide the Satan with any ammunition.

Indeed, this Gemara’s discussion is rallied as a source in the following situation. Maury Bond is lying on his deathbed on a hot Friday afternoon. There is concern that if he dies before Shabbos, his corpse will begin to decompose and smell unpleasant before it can be buried after Shabbos, which would not be a kavod for the departed. (Remember that earlier generations did not have ready access to refrigeration.) The authorities debate whether it is permitted to dig Maury’s grave while he is still breathing, so that, should he die on Friday, he could be buried quickly before Shabbos. Most authorities^[5] permit digging the grave while Maury is still living; the dissenting opinion prohibits this out of concern that Maury might find out that his grave is already dug, which will distress him, and this itself could lead to his premature demise.^[6] However, none of the authorities debating this case is concerned that the efficacy of digging Maury’s grave while he is still alive violates al yiftach adam piv l’satan and provides Satan with the opportunity to clamor for Maury’s swift departure. Some of the authorities who discuss this question explicitly state that it is perfectly acceptable for a healthy person to arrange the digging of his own grave and to prepare his own shrouds, as we see from the above-quoted passage in the Gemara. One highly respected authority expressly approves the practice of purchasing adjacent burial plots for a couple, the fact that at least one member is still alive notwithstanding.^[7]

Thus, we see that it is not considered al yiftach adam piv l’satan when a healthy person makes funeral arrangements for himself, since he is not mentioning his sins and giving Satan any reason to prosecute him. Based on this, several authorities rule that purchasing life insurance is also not a violation of al yiftach adam piv l’satan.^[8]

However, I would like to note that there are two sources from which it seems that al yiftach adam piv l’satan applies in some other cases. In Kesubos 8b, the Gemara states that a person should not make the following declaration, “Many will drink the cup of mourning” because of the concern of al yiftach adam piv l’satan. This source implies that there is concern of al yiftach adam piv l’satan even when one’s statement does not imply that one has sinned and deserves punishment. Similarly, a different Gemara passage states that upon entering the bathhouse (which in those days involved a moderate degree of danger), one should not say “if something goes wrong, my death should atone for my sins” because of al yiftach adam piv l’satan.^[9]

Thus, we need to resolve why the halachic authorities who discuss making shrouds, digging a grave, or purchasing a burial plot for a living person do not prohibit these actions because of the principle of al yiftach adam piv l’satan, even though the statements “many will drink the cup of mourning” and “if something goes wrong, my death should atone for my sins” are prohibited for this reason.

The answer appears to be that these last two cases are a concern only because one is expressing the possibility of one’s passing, which fits the words of Chazal: a person should not say, “I sinned a lot, but Hashem has not punished me." Assuming our solution is correct, arranging plans for one’s demise, including writing one’s will and purchasing life insurance do not violate al yiftach adam piv l’satan, provided that one does not express verbally the possibility of one’s death.

Issue #2: — In G-d We Trust – Exclusively

A Jew is obligated to believe that although he makes an effort to earn his livelihood, parnasah, it is ultimately Hashem alone Who provides it. The question is whether there is a difference between working for one’s daily needs and working to save money for future expenses. Is it a shortcoming in bitachon to save for the future? Does purchasing life insurance imply lack of confidence that Hashem will provide for his family?

To answer these questions, we must first examine the halachic relationship between parnasah and bitachon.

Is there a Dispute in the Mishnah?

The Mishnah quotes two ostensibly dissenting opinions. Rabbi Meir is quoted first as saying: “A person should teach his son a livelihood that is easy (to learn) and free of potential sin. (At the same time, he should) pray to Him Who is the source of all wealth and property. (Always realize that) there is no profession that does not have its vicissitudes. Poverty and wealth are dependent on his merit.” We see that Rabbi Meir advocates teaching one’s child a livelihood, while simultaneously acknowledging that livelihood comes from Hashem and not from our efforts.^[10]

On the other hand, the very same mishnah quotes Rabbi Nehorai as saying, “I abandon all means of livelihood and teach my son only Torah.”

Thus, we appear to have a dispute between two tanna’im as to whether one should take time from teaching one’s son Torah in order to provide him with vocational training. However, this analysis cannot be accurate for the following reason:

The Gemara^[11] teaches that Rabbi Meir was an alternate name for Rabbi Nehorai, because his teaching of Torah produced so much light. (Meir means “He who gives light,” and the word Nehorai also means "light".) How could Rabbi Nehorai disagree with himself?

Resolving the Dispute

One answer to this problem is that Rabbi Nehorai’s statement that he would teach his son nothing but Torah was personal – Rabbi Nehorai himself had no worldly concerns, because he placed complete trust in Hashem. Someone at this level should indeed not teach his son any worldly occupation. However, most people do not reach this level of trust and must provide their son with a livelihood, while emphasizing that parnasah is from Hashem.^[12]

Rav Moshe Feinstein^[13] presents an alternative answer to the contradictory statements of Rabbi Meir. The two statements are discussing different stages of life, one before the son must begin supporting his family, and the other when he has to support his family. Rabbi Nehorai’s statement that “I teach my son only Torah” applies before the son needs parnasah. Until then, he should learn only Torah. The other statement refers to a son who has to earn a living. At that point, his father should teach him a livelihood that involves few halachic challenges and is easy to learn, while at the same time teaching him that his vocation is only hishtadlus, one’s feeble apparent attempt, and that parnasah comes only from Hashem.

There is a halachic difference between the two approaches. According to the first approach, someone with total trust that Hashem will provide for him, even if he makes no hishtadlus, should not make any effort toward parnasah. According to Rav Moshe’s approach, even a person with total trust in Hashem is required to have a livelihood. Rav Moshe brings evidence from several sources that it is inappropriate to rely on miracles for one’s parnasah. Furthermore, he considers having no livelihood as equivalent to relying on miracles.^[14]

On the other hand, Rav Vozner rules,^[15] similarly to the first approach, that a pure baal bitachon is permitted to rely totally on Hashem for parnasah; however, he agrees that this applies only to rare individuals. There are stories about Gedolim, such as Rav Yosef Chayim Sonnenfeld, who made no conventional hishtadlus to attain parnasah. These Gedolim, too, must have had the same opinion as Rav Vozner. According to Rav Moshe’s approach, one may not deliberately adopt such a lifestyle.

Both Rav Moshe and Rav Vozner rule that, generally speaking, people are required to have some type of parnasah, and that it is not a lack of bitachon to do so. Unless he is a great tzaddik, no one should assume that he has sufficient zechuyos (merits) to expect Hashem to provide his parnasah with no hishtadlus whatsoever on his part.

The poskim bring evidence from Tosafos that it is not a shortcoming to make arrangements to take care of one’s financial future. The Gemara^[16] rules that although a father has the halachic ability to marry off his daughter while she is a minor, he is prohibited to do so out of concern that when she grows up, she may not like her husband. In Tosafos’ time, however, underage daughters were married off, which appeared to be a violation of this halacha. Upon what basis was there a practice contrary to the Gemara’s ruling?

Tosafos explains that in his turbulent times (the Baalei Tosafos lived during the period of the Crusades), a man who had sufficient means to provide his daughter with a dowry, should arrange her marriage to someone appropriate. If the father delayed, he risked losing his money, which could have been tantamount to his becoming unable to marry off his daughter. Tosafos does not contend that a person should have bitachon that he will have the means to be able to marry her off later.

Similarly, someone who can purchase life insurance, an annuity, or other means for making his life or the lives of his dependents more secure, may do so.^[17] Bitachon does not require someone to ignore future needs. Bitachon does require that a person realize that everything that happens is under Hashem’s supervision and control.^[18]

What will I eat tomorrow?

But doesn’t this approach violate the statement that “Someone who has (today’s) bread in his basket, and asks, ‘What will I eat tomorrow?’ lacks faith”?^[19] Aren’t Chazal teaching us that someone who plans for tomorrow’s livelihood lacks proper trust in Hashem?

The answer is no. This last passage is discussing people’s beliefs. Everyone must believe that Hashem provides for him and that whatever happens is under His control. One may not say, “What will I eat tomorrow?” thereby ignoring Hashem’s supervision. However, this does not mean that making practical plans for the future is a violation of bitachon, provided one fully realizes that everything comes from Hashem and is dependent on Him.

The Manna

However, there is another passage of Gemara^[20] that may indicate otherwise:

“Rabbi Shimon ben Yochai’s disciples asked him, ‘Why did the manna not fall for the B’nei Yisrael once a year (for the entire year)?’ He answered them, ‘I will give you a parable. A human king once provided his son with support on an annual basis. The son visited his father once a year to receive his allowance. Wanting to see his son more often, the father altered the system and began providing his son with support on a daily basis. Thereafter, his son visited his father every day. Similarly, the head of a large household worried that no manna would fall on the morrow; thus he would pray daily for sustenance.” Doesn’t this Gemara imply that it is better for one’s parnasah to arrive one day at a time than to plan for the future?

The halachic authorities provide two answers to this question that are dependent on the dispute between Rav Vozner and Rav Moshe mentioned earlier. According to Rav Vozner, this Gemara reflects the ideal: a great tzaddik should indeed receive his parnasah one day at a time. However, most people are not at this level of faith and may plan for the future. According to Rav Moshe’s approach, the Gemara means that a person should mentally acknowledge every day that Hashem provides for all his needs; however, he is permitted and required to make hishtadlus, which includes planning for future needs. It should be noted that all the poskim that I have seen discussing this issue rule that purchasing life insurance qualifies as normal hishtadlus.

In this context, it is worthwhile to quote a Midrash that demonstrates the obligation to make hishtadlus. Quoting the pasuk,^[21] “L’ma’an yevorechecha Hashem Elokecha b’chol ma’asecha asher ta’aseh,” “So that Hashem Your G-d will bless you in all your deeds that you will perform,” the Midrash points out that the last two words of the posuk, “asher taaseh,” “that you will perform” are seemingly superfluous, because the Torah already stated, “b’chol ma’asecha,” “in all your deeds.” What is added with the words, “that you will perform?”

The Midrash^[22] explains, “The Torah states, ‘Keep the mitzvos.’ I might think that he should do nothing and expect his parnasah to come automatically? Therefore, the Torah repeats, ‘that you will perform.’ If you work, you will receive blessing, and if you do not work, you will not receive blessing." This Midrash proves that one has a responsibility to earn parnasah.

Issue #3  — Succeeding in Divine Judgment

I have heard people give yet another reason why someone should not purchase life insurance. What happens if a husband does not have the personal merit to guarantee longevity, while his wife and children do have the merit or the mazel (fortune) to live financially secure lives? In a case like this, the husband would live a long productive life as their provider. By purchasing life insurance, which guarantees their sustenance even without his presence, he jeopardizes his life, since his dependents are now provided for should something bad happen to him.

In the one halachic source that I saw mention this concern, the author, Rav Yitzchok Sternhell zt”l, quoted the exact opposite approach in the name of the Shinaver Rav (Rav Yechezkel Shraga Halberstam zt”l, author of Divrei Yechezkel), who was one of the greatest halachic authorities of his day in Galicia. The Shinaver contended that buying life insurance should provide longevity. He argues that since the mazel of the people who own insurance companies is to become wealthy, their mazel will prevail and prevent them from losing money by having to pay out life insurance policies. Thus, purchasing a policy actually rallies mazel to one’s side and does not jeopardize one’s life.^[23]

Another counter-argument runs as follows: If loss of merit is a concern, then there is valid reason to refrain from accumulating any wealth. The family members of a man who ekes out a daily existence are far more dependent on their breadwinner than are the wife and children of a wealthy man, since he will leave them with an appreciable inheritance should something happen to him. Thus, one could argue that accumulating wealth is not in one’s best interest, an approach that does not have too many advocates. I have never seen anyone refrain from accumulating wealth because of this concern, and neither have I seen any halachic authority suggest this as a reason to avoid affluence. Therefore, I conclude that this is not a factor in the question of purchasing life insurance.

Conclusion

In conclusion, I am aware of thirteen written teshuvos^[24] (responsa) on the purchase of life insurance or annuities, written by authorities representing Litvishe, Chassidishe and Sefardic approaches. All thirteen teshuvos permit purchasing life insurance, and some encourage the practice strongly.

Rav Meir Shapiro, the Rosh Yeshivah of Yeshivas Chachmei Lublin, had a very large life insurance policy, even though he unfortunately had no children. His reason was that since fundraising for the yeshiva was completely on his shoulders, he was concerned that in the event of his premature death, the yeshiva would be forced to close. We see that he was not concerned with any of the above issues and felt that purchasing insurance was an appropriate course of action.

May we all be blessed with long years and good health.

^[1] Kesubos 8b

^[2] Berachos 19a

^[3] 239:7

^[4] Menachos 41a

^[5] Beis Yosef, Bach and Gr’a to Yoreh Deah 339; Mishneh LaMelech, Hilchos Aveil 4:5

^[6] Shu’t Rivash #114 as explained by Bach, Yoreh Deah 339

^[7] Shu’t Rivash #114

^[8] Shu’t Be’er Moshe 8:118, quoting Shu’t Lechem Shelomoh by Rav Shelomoh Zalman Ehrenreich, #68; Shu’t Yechaveh Daas 3:85

^[9] Berachos 60a

^[10] Kiddushin 82a

^[11] Eruvin 13b

^[12] Sefer HaMikneh, Kiddushin 82a. See Kochavei Ohr of Rav Yitzchak Blazer (colloquially called Rav Itzele Peterburger, because he once served as the Rav of St. Petersburg), the disciple of Rav Yisrael Salanter, Chapter 11, for a description of the difference between these two types of people.

^[13] Shu’t Igros Moshe, Orach Chayim 2:111; see also Orach Chayim 4:48).

^[14] We should note that Rav Samson Raphael Hirsch also follows this approach numerous times in his commentary on the Torah.

^[15] Shu’t Shevet HaLevi 4:1:2

^[16] Kiddushin 41a

^[17] Shu’t Yechaveh Daas 3:85; Shu’t Kochavei Yitzchak 1:22, both quoting several other authorities.

^[18] Both Shu’t Be’er Moshe 8:118 and Shu’t Teshuvos VeHanhagos 4:325 also reach the same conclusion and bring support to this conclusion from several other Talmudic passages and concepts. To keep this chapter reasonably small I have omitted his proofs. In addition, Shu’t Teshuvos VeHanhagos provides sources that a person cannot selectively apply bitachon to say medical issues. One should be consistent in how he bases his decisions on bitachon. The reader is encouraged to read their responsa on the subject.

^[19] Sotah 48b

^[20] Yoma 76a

^[21] Devarim 14:29

^[22] Midrash Shocher Tov, cited by Shu’t Yechaveh Daas 3:85

^[23] Shu’t Kochavei Yitzchak 1:22

^[24] In addition to the above quoted sources and sources that they quote, see Koveitz Teshuvos 1:19 a letter from Rav Elyashiv to Rav Elya Svei and Rav Malkiel Kotler encouraging Torah institutions to provide their educators with life insurance policies.

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.

“I suggested that a local girl meet a bachur who is currently learning in Eretz Yisroel,” Mrs. Weinberg began. “Both families did their research and agreed that it sounded worth pursuing, but they decided to wait until the summer when the bachur would be visiting his family here.”

“When the summer arrived,” Mrs. Weinberg continued, “I called the families back to arrange for the young people to meet. However they told me that someone else suggested the shidduch, and that they are following up through the other shadchan. Are they permitted to cut me out of the arrangements? After all, it was my idea first!”

Does Mrs. Weinberg have a claim? If she does, for how much money and against whom?

SHADCHANUS GELT

Before we discuss these issues, we need to establish whether paying a shadchan is indeed a halachic requirement.

I often find that people feel that one is not required to pay a shadchan. However, this is a misconception, since the halachic sources require paying a shadchan a fee, usually called by its Yiddish name, shadchanus gelt (Rama, Choshen Mishpat 264:7).  Just as you expect to pay your real estate broker, so too, you should assume you will pay the shadchan. (We should be aware that a shadchan’s claim for services rendered has a stronger foundation than a doctor’s fee for an office visit [see Shulchan Aruch, Yoreh Deah 336:2], but that is a topic for a different article.)

Furthermore, there is nothing wrong with a shadchan requesting payment for services rendered just as an attorney or accountant has every right to demand payment for services.

BROKERAGE FEES

Although it sometimes sounds strange, shadchanus fees are halachically categorized as brokerage fees. Just as one pays a real estate agent for arranging a transaction, so too one pays a shadchan for making the arrangements necessary for the engagement and marriage to transpire. Therefore, we must first explain the halachic sources for brokerage fees.

The Gemara (Bava Metzia 63b) mentions the responsibility to pay a broker’s fee to the person who arranges the sale of property or merchandise (Shulchan Aruch Choshen Mishpat 185:1; Rama 87:39). This is a standard business practice, similar to paying a commission to a stockbroker, real estate agent, or personnel recruiter (sometimes called a “headhunter”).

BUT WHAT IF I DIDN’T ASK HIM?

People easily understand that if you approach a broker or agent, you thereby obligate yourself to pay him for his services. However, some people assume that if you did not solicit the service, are not obligated to pay. Does this distinction have any basis?

According to halacha, you are required to pay for any unsolicited benefit that you would usually pay for. Providing unsolicited benefit is called yored lisoch sdei chaveiro shelo birshus, entering someone else’s field without authorization, and the provider of the benefit is referred to simply as the yored (Gemara Bava Metzia 101a).

The case where the Gemara demonstrates this halacha is very instructive: Someone owns a field that he usually plants, but he has not yet planted it this year. Someone else planted the field without asking the owner’s permission and now asks the owner to pay him! Is the planter entitled to compensation for his efforts? The Gemara rules that he is entitled to compensation since you benefit from his work.

HOW MUCH DO YOU OWE THE YORED?

You are required to pay the yored as much as you have benefited. If he performed work for you that would normally require you to hire someone, you must pay him the market rate for hiring someone for this work (Gemara Bava Metzia 76a; Sma, Choshen Mishpat 375:1).

WHY MUST ONE PAY THE SHADCHAN?

When a single person or the parent of a single person asks someone if they know of any marriageable prospects, they are asking them to perform a valuable service on their behalf. This service has a market value, just as any other brokerage or recruiting fee has a market value (Rama Choshen Mishpat 264:7).

WHAT IF YOU DID NOT ASK THE SHADCHAN?

Although there are halachic differences whether you approach the shadchan or the shadchan offers his/her service, in either case you are required to pay the shadchan. The basis for this requirement is as follows:

In this latter instance the shadchan is a yored, since you received benefit from him for an unsolicited service that you would normally pay for (Gra, Choshen Mishpat 87:117). As explained above, you must pay him whatever you would have otherwise paid for that service (Gemara Bava Metzia 76a, 101a).

AM I REQUIRED TO PAY SHADCHONUS TO A FAMILY MEMBER OR CLOSE FRIEND?

This shaylah was discussed hundreds of years ago. A professional shadchan contacted Mr. Reuven suggesting a gentleman he thought appropriate for Mr. Reuven’s widowed sister-in-law. Mr. Reuven was involved in researching the shidduch and in arranging the couple’s meeting. When the couple announced their engagement, Mr. Reuven informed the professional shadchan that he was expecting half the shadchanus gelt, claiming that he was the shadchan who convinced the woman to consider this shidduch. The professional shadchan contended that he was the only shadchan, and that Mr. Reuven was an interested party and not a shadchan. Mr. Reuven countered that the professional had never made direct contact with his sister-in-law but relied exclusively on him (Mr. Reuven) to encourage the shidduch. The matter was referred to Rav Yair Chayim Bachrach, known as the Chavos Yair (after one of the seforim he authored). The rav ruled that Mr. Reuven was indeed a shadchan since he influenced his sister-in-law to pursue the shidduch. He was therefore entitled to half the shadchanus fee even though he was related to one of the principals (Shu’t Chut HaShani #3, quoted in Pischei Tshuvah, Even HaEzer 50:16).

WHO MUST PAY THE SHADCHANUS FEE, THE PARENTS OR THE COUPLE?

Usually the parents of an engaged party pay the shadchanus gelt. Are they required to pay this fee, or is it really the responsibility of the young couple that the parents assume? As we will see, there are halachic ramifications to this question.

The poskim debate this question, making razor-thin distinctions that have major ramifications. Some contend that the responsibility falls upon the young couple since they are the ones who benefit, even though the prevalent custom is that the parents pay (Shu’t Avnei Nezer, Choshen Mishpat #36). Others contend that since the parents usually pay, the shadchan only expects payment from them and therefore he has no claim against the young couple (Halichos Yisroel #3, quoting Eirech Shai, Choshen Mishpat Chapter 185).

There is a major dispute between these approaches. The first opinion holds that if the shadchan is unable to collect from the parents, he may collect from the couple. According to the second opinion, his only claim is against the parents, and if he cannot collect from the parents, he cannot claim his fee from the young couple.

ARE THERE ANY HALACHIC DIFFERENCES WHETHER YOU ASKED THE SHADCHAN, OR HE APPROACHED YOU WITH THE SUGGESTION?

Since we have learned that one must pay the shadchan whether or not one solicited him or her initially or not, does it make any difference whether I asked the shadchan or the shadchan approached me first?

There are several differences in halacha that pertain to whether you solicited the shadchan initially or vice versa, including when you are required to pay the shadchan and whether one violates the mitzvah of bal talin if one fails to pay the shadchan on time.

If you approached or telephoned the shadchan initially, then you have hired him or her to perform a job — in this case to find an appropriate shidduch. If he/she succeeds in his/her mission, then you are required to pay when the job is completed, and you must pay the shadchan as soon as the couple becomes engaged (Shu’t Halichos Yisroel #1-2). Furthermore if you do not pay him/her on time and the shadchan demands payment, you will violate a Torah prohibition called bal talin, not paying a worker on time, a mitzvah we will explain shortly.

However, if you did not hire the shadchan, then you do not violate bal talin if you do not pay him/her on time since the shadchan is not your employee.

Another difference in halacha affected by whether the shadchan was solicited or not, is whether you must pay him or her at the time the couple becomes engaged or at the wedding. If the shadchan solicited you, then the time you are required to pay the shadchan depends on minhag- accepted local custom (Rama Choshen Mishpat 185:10). If the local custom is that people do not pay the shadchan until the wedding, then the shadchanus gelt is considered a marriage expense to be paid then, not an engagement expense. However, if you solicited the shadchan, then you are required to pay the shadchan when his/her job is completed, which is when the couple becomes engaged (Shu’t Halichos Yisroel #4).

BAL TALIN – PAYING WORKERS ON TIME

As explained above, if one hired the shadchan, one must pay him/her on time because of the mitzvah of bal talin.

WHAT IS ON TIME?

There are two deadlines, sunset and daybreak, and one is obligated to pay one’s worker before the first deadline after the job is completed. Therefore, if the worker finished his job before the end of the day, I must pay him by sunset. If he completed the work at night, I must pay him before daybreak (Bava Metzia 111a). (As mentioned above, one violates this prohibition only if the worker demanded payment and the owner refused to pay and there was no understanding or prearrangement of late payment.) According to this approach, if you went to a shadchan who, Baruch Hashem, arranged a successful shidduch, one should make sure to pay him or her immediately after the couple becomes engaged before the next deadline arrives (Shu’t Halichos Yisroel #11). Others contend that one need not pay the shadchan until the wedding unless the custom is otherwise (Rav Elyashiv, introduction to Shu’t Halichos Yisroel).

Still other poskim contend that since the responsibility of paying the shadchan really lies with the marrying couple, there is no violation of bal talin if the shadchan is assuming that the parents are paying his fee since they are technically not required to pay shadchanus gelt.

HOW MUCH MUST I PAY THE SHADCHAN?

One must pay the shadchan whatever is the accepted fee in your community for this service (Pischei Teshuvah, Even HaEzer Chapter 50:16).

DIVIDING THE FEE

What happens if two different shadchanim were involved at different stages of encouraging the shidduch? Are they both entitled to be paid? How does one divide the fee? As we can imagine, this is not a recent shaylah.

An early posek, the Shev Yaakov (Choshen Mishpat #13), discusses the following case: Levi recommended that Reuven’s son meet Shimon’s daughter. After the engagement of the young couple, Gad claimed that he had originally suggested the shidduch to the parties and thus he is entitled to part of the shadchanus.

The Shev Yaakov researched the claims. As it turned out, Gad had indeed originally suggested the shidduch to both parties, but Shimon and his family had no interest in pursuing it. Levi, however, was a more persistent shadchan and convinced Shimon to consider Reuven’s son for his daughter.

Shev Yaakov ruled that Gad was not entitled to any part of the shadchanus fee. He contends that a shadchan is only entitled to a fee when he was involved in the part of the discussion that reached fruition. However in this case, Gad’s proposal did not accomplish anything and therefore he is not considered to be a shadchan.

By a similar reasoning, a real estate agent who showed a prospective client a house, but was unable to interest them in the house, and then a different agent showed them the same house and succeeded in convincing them to purchase the house, the second agent is entitled to the commission according to halacha. (In these instances, if accepted business practice is different it might affect the halacha, which is a topic for a different time.)

Thus, it seems that Mrs. Weinberg is not entitled to any shadchanus fee in our situation, since she was not part of the actual introduction that took place. However, one could argue differently – that she had interested them in the shidduch, and therefore she is entitled to part of the shadchanus gelt. It would seem to me that this latter argument is stronger.

Notwithstanding that the Shev Yaakov ruled that Gad was not entitled to a share of the fee, there are cases in which the shidduch involves several parties and each is entitled to a part of the fee. If Sarah suggested a shidduch, but then felt that Rivkah would be a better go between, and eventually Leah was necessary to get involved and was instrumental in the couple subsequently becoming engaged, all three ladies are considered partial shadchanim according to many poskim. the accepted practice in this case is to divide the accepted shadchanus fee and to award 1/3 to each of the ladies. Other poskim contend that only the person who suggested the shidduch and the one who finalized it are considered shadchanim and they split the fee – but that a go-between who neither suggested a shidduch nor finalized it is not viewed as a shadchan (Shu’t Avnei Nezer, Choshen Mishpat #36).

SOME INTERESTING SHADCHANUS STORIES

A shadchan unsuccessfully attempted to arrange a shidduch between a daughter of the wealthy Weiss family and the son of the wealthy Schwartz family. Although the two families did meet and enjoyed one another, the shidduch did not materialize and the Weiss girl subsequently married someone else. Later, other shadchanim suggested a match between a younger Weiss daughter and the widowed Mr. Schwartz, and the couple became engaged. The original shadchan now claimed that he is entitled to a percentage of the shadchanus gelt, claiming that his involvement in the previous unsuccessful shidduch was instrumental in forging the close relationship between the two families that caused the latter shidduch to happen. Does the original shadchan have a claim?

The parties referred this shaylah to the Avnei Nezer (Choshen Mishpat #36). In a very complicated ruling he contends that the original shadchan might be entitled to a very small percentage of the shadchanus gelt for his role. He suggests a compromise on this basis, but rules that it is uncertain that he is entitled to any part of the fee.

IF A SHADCHAN ASKS FOR A HIGHER THAN TYPICAL FEE, AM I REQUIRED TO PAY IT?

If the shadchan did not provide any unusual shadchanus service, and the fee for a shadchan in your area is fairly standard, then the shadchan is not entitled to the extra fee. However, if there is no standard shadchanus fee in your area, or the shadchan performed a special service, then one must pay the shadchan’s higher fee (see Rama, Choshen Mishpat 335:1 and 264:7; Shach 264:15). Shadchanus is like any other profession where one may not charge significantly above the going rate. However, when there is no fixed accepted amount, then the shadchan is not overcharging since there is no market figure. Similarly, if the shadchan extends him/herself more than is expected, he may command a higher fee since one is paying for the extra service (see Rama 335:1)

According to the Midrash, Moshe Rabbeinu was the shadchan between Klal Yisroel and Hashem at the giving of the Torah. Furthermore, Hashem Himself is indeed the ultimate Shadchan of every marriage. Thus, we should respect the wonderful role of the shadchanim in our midst who are involved in a mitzvah that emulates both Hashem and Moshe.

Question #2: Is there a halachic definition of what constitutes a eulogy?

Question #3: Should the bereaved or the deceased’s individual circumstances affect how one eulogizes?

Our Parsha

“And Sarah died in Kiryas Arba, which is Hebron, in the Land of Canaan. And Avraham came to eulogize Sarah and to cry over her.” This is the earliest of many verses the Gemara cites when discussing the mitzvah of eulogizing. People often avoid writing halachic articles about hespedim in favor of more exciting or popular topics, leaving many unaware that there is much halachah on the subject. Are there rules to follow when organizing or delivering hespedim? Indeed, there are many, as we will soon see.

The Mitzvah

Most authorities do not count performing eulogies as one of the 613 mitzvos of the Torah. Indeed, most consider it only a rabbinic mitzvah. Nonetheless, the hesped accomplishes the Torah mitzvah of ve’ahavta le’reicha komocha, loving one’s fellow as oneself, since a properly delivered hesped is a very great chesed. To quote the Rambam:

“It is a positive mitzvah of the Sages to check on the ill, to console mourners… to be involved in all aspects of the burial… to eulogize… Even though all of these mitzvos are rabbinic, they are all included in the mitzvah that one should love one’s fellow as oneself. Anything that you want someone to do for you, you should do to someone else who also keeps Torah and observes mitzvos” (Hilchos Aveil 14:1).

As the following passages demonstrate, our Sages strongly emphasized the importance of performing this mitzvah properly :

“When a Torah scholar passes away, the entire nation is obligated in his eulogy, as it states: ‘and Shmuel died, and all of Israel eulogized him’” (Mesechta Kallah Rabbasi Chapter 6).

“Whoever is idle in carrying out the hesped of a Torah scholar does not live long” (Yalkut Shimoni, Yehoshua 35).

“Whoever is idle in carrying out the hesped of a Torah scholar deserves to be buried alive” (Shabbos 105b)!

“A voice from above declared, ‘Whoever was not idle in participating in Rabbi Yehudah Hanasi’s eulogy is assured of life in the World to Come” (Koheles Rabbah 7).

“If someone cries upon the passing of an adam kosher (a halachically observant person) Hashem counts his tears and then stores them (Shabbos 105b).”

From all of the above we see that the responsibility of hesped applies both to the person eulogizing, to those who attend, and even to the individuals who are required to attend and participate. Furthermore, we see that the reward for fulfilling this mitzvah properly is very significant, both physically and spiritually, and that the eulogy and the crying associated with mourning are both highly important.

A “Kosher” Person

Above, I cited the statement: “If someone cries upon the passing of an adam kosher, Hashem counts his tears and then stores them.” I translated adam kosher as a halachically observant person.

Who qualifies as an adam kosher?

The Rishonim discuss this question. Although the Rosh (Moed Katan 3:59) notes that his rebbe¸ the Maharam of Rottenberg, was uncertain what the term means, he himself concludes that it refers to someone who observes mitzvos properly, even if the person is not a talmid chacham and one sees nothing particularly meticulous about his religiosity. The Shulchan Aruch follows this definition.

Others explain that this is not enough to qualify as an adam kosher. Rather, the title applies to someone who, in addition to observing mitzvos properly, also pursues opportunities to perform chesed (Shach, Yoreh Deah 340:11, quoting Rabbeinu Yonah, Ramban and Bach). According to either approach, one should cry at the funeral of an adam kosher.

What is a proper hesped?

“It is a great mitzvah to eulogize the deceased appropriately. The mitzvah is to raise one’s voice, saying about him things that break the heart in order to increase crying and to commemorate his praise. However, it is prohibited to exaggerate his praise excessively. One mentions his good qualities and adds a little… If the person had no positive qualities, say nothing about him (Shulchan Aruch, Yoreh Deah 444:1).” (In a different article, I will discuss why one may exaggerate “a little bit,” even though, it would seem, a small lie is also a falsehood.) The eulogy should be appropriate to the purpose and extent of the tragedy. For example, one should eulogize more intensely for someone who died young than for an older person, and more for someone who left no surviving descendants than for someone who had children (Meiri, Moed Katan 27b). The crying of every hesped should not be to excess (Meiri, ad loc.).

In summation, we see that the purpose of a hesped is to cause people to cry over the loss of a Jew who observed mitzvos properly. On the other hand, eulogizing inappropriately is very sinful.

At this point, we can answer the first question: “I have heard eulogies where the speaker seemed more interested in demonstrating his ability as a speaker than in commemorating the departed. Is this the proper way to eulogize?”

Despite its frequency, such behavior is obviously wrong. I discovered that this sin of eulogizing in non-accordance with  halachah, such as speaking for one’s own self aggrandizement or exaggerating excessively, is so serious that in some places there was a custom to never eulogize and to forgo the mitzvah altogether, despite its importance (see Gesher HaChayim 1:13:4).

Why Do We Eulogize?

The Gemara (Sanhedrin 46b) raises a halachic question: Do we eulogize out of respect for the deceased, or in order to honor the surviving family members? In other words, is the chesed of this mitzvah due to the posthumous dignity granted to the departed, or is it due to its inspiring people to realize the extent to which the surviving family members have been bereaved? The Gemara devotes a lengthy discussion in proving which option is correct.

Do any variations in observance result from this question?

The Gemara notes two such differences:

No Hespedim for Me!!

I. What happens if a person requests that no one eulogize him?

If the purpose of a eulogy is to honor the deceased, the deceased has a right to forgo the honor and request that no eulogies be recited. Since the hespedim are in his/her honor, he/she has the right to forgo the honor and we respect this request. However, if the purpose of a eulogy is to honor the surviving relatives, a request of the deceased does not forgo the honor of the survivors, and we will eulogize him/her anyway if the family so desires.

Paying for a Speaker

II. A second halachic difference resulting from the above question (whether the mitzvah is to respect the deceased or to honor the surviving family members) is whether one may obligate the heirs to pay for the eulogy.

In many circles and/or eras, it is or was common to hire a rabbi or other professional speaker to provide the eulogy. May one hire such a speaker and obligate the heirs to pay his fee? If the mitzvah is to honor the deceased and hiring a professional speaker is standard procedure, then one can obligate the heirs to hire a speaker just as they are required to pay for the funeral. If eulogizing is for the sake of the bereaved, one cannot obligate them to pay for professional eulogizers if they prefer to forgo the honor.

The Gemara rallies proof from this week’s parsha that the mitzvah is to honor the deceased. As the pasuk clearly mentions, Avraham Avinu was not present when his wife Sarah died. The Gemara asks why did they wait until Avraham arrived to eulogize her. If the reason for the hesped is indeed to honor the living, Sarah should not have been left unburied until Avraham arrived. On the other hand, if the mitzvah is to honor the deceased, then Sarah was left unburied so that Avraham should honor her with his hesped.

Although the Gemara rejects this proof, it ultimately concludes that the purpose of a hesped is to honor the deceased. Therefore, if the deceased requested no eulogies, we honor his/her request, and also, heirs are obligated to pay eulogies where appropriate.

Pre-Torah

You might ask, how can we derive halachos from events that pre-date the Torah? Didn’t the mitzvos change when the Torah was given?

The answer is that since this mitzvah fulfills the concept of ve’ahavata lereiacha kamocha, love your fellow as yourself, we can derive from its mode of performance whether its purpose is to honor the deceased or, alternatively, the surviving family members.

Conclusion

The Torah begins and ends by describing acts of chesed that Hashem performed, the last one entailing His burying of Moshe Rabbeinu. Our purpose in life is to imitate Hashem in all activities until our personality develops to the point that we instinctively behave like Hashem. Fulfilling the mitzvah of hesped correctly, whether as a speaker or as a listener, develops our personality appropriately, and thus fulfills another highly important role in our Jewish lives.

When our ancestors accepted responsibility to observe the Torah, they did so by performing bris milah, immersing themselves in a mikveh, and offering korbanos. In the same way, a non-Jew who chooses to join the Jewish people is entering the same covenant and must follow a similar procedure (Gemara Kerisus 9a).

The privilege of becoming a ger tzedek requires very exact and exacting guidelines. On a technical level, the ger is accepting responsibility to perform mitzvos. Through the geirus procedure, he creates an obligation upon himself to observe mitzvos (Birchas Shmuel, Kiddushin #15).

DEFINITION OF A JEW

To the non-Jewish or non-observant world, the definition of a Jew is based on sociological criteria. But to the Torah Jew, the definition of a Jew is someone who is a member of a people who are obligated to fulfill all of the Torah’s commandments. For this reason, it is axiomatic that no one can become Jewish without first accepting the responsibility to observe mitzvos (kabbalas mitzvos). This concept, so obvious to the Torah Jew, is almost never appreciated by the non-observant. Someone who does not (yet) observe mitzvos himself usually does not appreciate why observing mitzvos is imperative to becoming Jewish. This is why a not-yet-observant Jew often finds our requirements for giyur to be “unrealistic” or even “intolerant.” However in true reality, attempting to bend the Torah’s rules reflects an intolerance, or more exactly, a lack of understanding. The Torah Jew realizes that the basic requirement for becoming a Jew is accepting Hashem’s commandments, since a Jew is by definition someone who is bound by the Torah.

DISCOURAGE CONVERTS

As we all know, when someone requests to be converted to Judaism, we discourage him. As the Gemara (Yevamos 47a) says, if a potential convert comes, we ask him, “Why do you want to convert? Don’t you know that Jews are persecuted and dishonored? Constant suffering is their lot! Why do you want to join such a people?”

Why do we discourage a sincere non-Jew from joining Jewish ranks? Shouldn’t we encourage someone to undertake such a noble endeavor!

The reason is that even if the potential convert is very sincerely motivated, we still want to ascertain that he or she can persevere to keep the mitzvos even under adversity. Although we can never be certain what the future brings, by making the path to conversion difficult we are helping the potential convert who might later regret his conversion when the going gets hard. Because of this rationale, some batei din deliberately make it difficult for a potential convert as a method of discouraging him.

I have used a different method of discouragement, by informing potential converts of the seven mitzvos bnei Noach. In so doing, I point out that they can merit olam haba without becoming obligated to keep all the Torah’s mitzvos. In this way, I hope to make them responsible moral non-Jews without their becoming Jewish. As the Gemara explains, we tell him, “Until now you received no punishment if you failed to keep kosher. There was no punishment if you failed to observe Shabbos. If you become Jewish, you will receive very severe punishments for not keeping kosher or Shabbos!” (Yevamos 47a).

I once met a woman who was enthusiastically interested in becoming Jewish. Although she was living in a town with no Jewish community – she was already keeping a kosher home!

After I explained the mitzvos of bnei Noach to her, she insisted that this was not enough for her. She wanted to be fully Jewish.

Because of her enthusiasm, I expected to hear from her again. I was wrong. I never heard from her again. It seems that her tremendous enthusiasm petered out. This is exactly what Chazal were concerned about. Therefore they told us to make it difficult for someone to become Jewish and see whether his or her commitment survives adversity. It was better that this woman’s enthusiasm waned before she became Jewish than after she became Jewish and had no way out.
The following story from my personal experience is unfortunately very common. A gentile woman, eager to marry an observant Jewish man, agreed to fulfill all the mitzvos as a requirement for her conversion. (As we will point out shortly, this is not a recommended procedure.) Although she seemed initially very excited about observing mitzvos, with time she began to lose interest. In the end, she ended up giving up observance completely. The unfortunate result is that she is now a chotei Yisrael (a Jew who sins).

MOTIVATION FOR CONVERTING

We must ascertain that the proposed convert wants to become Jewish for the correct reasons. If we discern or suspect that there is an ulterior reason to convert, we do not accept the potential convert even if he is committed to observing all the mitzvos.

For this reason converts are not accepted at times when there is political, financial, or social gain in being Jewish. For example, no converts were accepted in the days of Mordechai and Esther, nor in the times of Dovid and Shlomoh, nor will geirim be accepted in the era of the Moshiach. During such times, we suspect that the convert is somewhat motivated by the financial or political advantages in being Jewish (Gemara Yevamos 24b). This applies even if we are certain that they will observe all the mitzvos.

Despite this rule, unlearned Jews created “batei din” during the reign of Dovid HaMelech and accepted converts against the wishes of the gedolim (Rambam, Hilchos Issurei Biyah 13:15).

The Rambam explains that the “non-Jewish” wives that Shlomoh married were really insincere converts. In his words, “In the days of Shlomoh converts were not accepted by the official batei din…however Shlomoh converted women and married them…and it was known that they converted for ulterior reasons and not through the official batei din. For this reason, the pasuk treats them as non-Jews…furthermore the end bears out that they worshipped idols and built altars to them” (Rambam, Hilchos Issurei Biyah 13:15-16).

Because of this rule, we do not accept someone who is converting because he or she wants to marry someone who is Jewish, even if the convert is absolutely willing to observe all the mitzvos (Gemara Yevamos 24b). I have seen numerous instances of non-Jews who converted primarily for marriage and who agreed to keep all the mitzvos at the time of the conversion. Even in the instances where mitzvos were indeed observed, I have seen very few situations where mitzvos were still being observed a few years (or even months) later.

GEIRUS WITH IMPROPER MOTIVATION

What is the halachic status of someone who went through the geirus process for the wrong reasons, such as they converted because they wanted to marry someone?

If the convert followed all the procedures including full acceptance of all the mitzvos, the conversion is valid even though we disapprove of what was done. If the convert remains faithful to Jewish observance, we will treat him with all the respect due to a Jew. However, before reaching a decision on his status, the beis din waits a while to see whether the convert is indeed fully committed to living a Jewish life (Rambam, Issurei Biyah 13:15-18).

However, someone who is not committed to mitzvah observance and just goes through the procedures has not become Jewish at all.

Jim was interested in “converting to Judaism” because his wife was Jewish and not because he was interested in observing mitzvos. At first he went to a Rav who explained that he must observe all the mitzvos, and certainly they must live within the frum community. This was not what Jim had in mind, so he went shopping for a “rabbi” who would meet his standards. Is there any validity to this conversion?

CONVERSION PROCESS

How does a non-Jew become Jewish? As mentioned above, Klal Yisrael joined Hashem’s covenant with three steps: bris milah (for males), immersion in a mikveh, and offering a korban (Gemara Krisus 9a). Since no korbanos are brought today, the convert becomes a ger without fulfilling this mitzvah. (We derive from a pasuk that geirim are accepted even in generations that do not have a Beis HaMikdash.) However, when the Beis HaMikdash is iy”h rebuilt, every ger will be required to offer a korban olah which is completely burnt on the mizbayach (Rambam, Hilchos Issurei Biyah 13:5).

Besides these three steps, the convert must accept all the mitzvos, just as the Jews accepted to keep all the mitzvos.

Preferably, each step in the geirus procedure should be witnessed by a beis din. Some poskim contend that the bris and tevilah are valid even if not witnessed by a beis din. But all poskim agree that if the kabbalas (accepting) mitzvos does not take place in the presence of a beis din, the conversion is invalid (Shulchan Aruch, Yoreh Deah 268:3). Thus, a minimal requirement for proper giyur (conversion) is that the ger’s commitment to observe all the mitzvos and practices of a Jew be made in the presence of a kosher beis din. Any “conversion” with no commitment to mitzvos, or where the commitment is made without observant Jews present, is by definition invalid and without any halachic foundation.

Unfortunately, some well-intentioned converts have been misled by people purporting to be batei din for geirus. I know of a woman who underwent four different conversion procedures until she performed a geirus in the presence of a kosher beis din!

KABBALAS MITZVOS

As mentioned above, kabbalas mitzvos is a verbalized acceptance to observe all the Torah’s mitzvos. We do not accept a convert who states that he is accepting all the mitzvos of the Torah except for one (Gemara Bechoros 30b). Rav Moshe Feinstein discusses a woman who was interested in converting and was willing to fulfill all the mitzvos except that she did not want to dress in the halachically-required tzniyus way. Rav Moshe rules that it is questionable if her geirus is valid (Shu”t Igros Moshe Yoreh Deah 3:106).

If the potential convert states that he/she accepts kabbalas mitzvos, we usually assume that the geirus is valid. However, what is the halacha if a person declares that he accepts the mitzvos but his behavior indicates the opposite? For example, what happens if the convert eats non-kosher or desecrates Shabbos immediately following his conversion procedure? Is he considered Jewish?

Rav Moshe Feinstein rules that if it is clear that the person never intended to observe mitzvos, his conversion is invalid. The person remains a non-Jew since he never undertook kabbalas mitzvos, which is the most important component of geirus (Shu”t Igros Moshe, Yoreh Deah 1:157; 3:106).

BEIS DIN

As mentioned before, conversion is an act that requires a proper beis din, meaning minimally three fully observant male Jews.

Since a beis din cannot perform a legal function at night or on Shabbos or Yom Tov, conversions cannot be performed at these times (Shulchan Aruch, Yoreh Deah 268:4).

CHILD CONVERSION

Until now we discussed the conversion of adults. A child can also be converted to Judaism (Gemara Kesubos 11a). There are two common reasons why this is done: Either when the child’s parents are converting to Judaism, or when a non-Jewish child is adopted by Jewish parents.

The conversion of a child involves an interesting question. As we explained above, the convert’s acceptance of the mitzvos is the main factor that makes him into a Jew. However, since a child is too young to assume legal obligations and responsibilities, how can his conversion be valid when it is without a legal accepting of mitzvos?

The answer is that we know that children can be converted from the historical precedent of Sinai where the Jewish people accepted the Torah and mitzvos. Among them were thousands of children who also joined the covenant and became part of klal Yisrael. When these children became adults, they became responsible to keep mitzvos (Tosafos Sanhedrin 68b).

There is, however, a qualitative difference between a child who becomes part of the covenant together with his parents, and an adopted child who is becoming Jewish without his birth parents. In the former case the parent assumes responsibility for the child’s decision (Gemara Kesubos 11a; Rashi Yevamos 48a s.v. eved), whereas an adopting parent cannot assume this role in the conversion process. Instead, the beis din supervising the geirus acts as the child’s surrogate parents and accepts his geirus. This same approach is used if a child comes of his own volition and requests to be converted (Mordechai, Yevamos 4:40).

CAN THE CHILD REJECT THIS DECISION?

Yes. If the child convert decides on reaching maturity that he does not want to be Jewish, he invalidates his conversion and reverts to being a gentile. The age at which a child can make this decision is when he or she becomes obligated to observe mitzvos, twelve for a girl and thirteen for a boy (Shu”t Igros Moshe, Yoreh Deah 1:162).

CAN HE CHANGE HIS MIND LATER IN LIFE?

No. Once the child achieves maturity and is living an observant lifestyle, this is considered an acceptance of the conversion that cannot be rejected afterwards.

WHAT IF THE CHILD CONVERT WAS UNAWARE THAT HE WAS A GER AND DID NOT KNOW THAT HE HAD THE OPTION?

Rav Moshe Feinstein discusses the case of a couple that adopted a non-Jewish child but did not want to tell him that he was adopted. (Not telling the child he is adopted may be inadvisable for psychological reasons, but this is an article on halacha, not psychology.) Rav Moshe raises the following halachic reason why the parents should tell the child that he is a convert. Assuming that the child knows he is a child convert, he has the option to accept or reject his Judaism when turning bar mitzvah (bas mitzvah for a girl), which is a time that the parents have much influence on their child. Subsequent to this time, he cannot opt out of Judaism. However, if he does not discover that he is a convert until he becomes an adult, he would have the option at that time to accept or reject his Judaism, and the parents have limited influence on his decision.

WHAT IF THE CHILD WANTS TO BE A NON-OBSERVANT JEW?

What is the halacha if the child at age thirteen wants to be Jewish, but does not want to be observant?

There is a dispute among poskim whether this constitutes a rejection of one’s conversion or not. Some contend that not observing mitzvos is not the same as rejecting conversion; the conversion is only undone if the child does not want to be Jewish. Others contend that not observing mitzvos is considered an abandonment of one’s being Jewish.

Many years ago I asked my rebbe, Rav Yaakov Kulefsky zt”l, about the following situation. A boy underwent a giyur katan and was raised by non-observant “traditional” parents who kept a kosher home but did not observe Shabbos. The boy wanted to be Jewish without being observant, just like his adopted parents. The family wanted to celebrate his bar mitzvah in an Orthodox shul and have the boy “lein” the Torah. Was this permitted or was the boy considered non-Jewish?

Rav Kulefsky zt”l paskined that the boy could “lein” and was considered halachically Jewish. Other poskim disagree, contending that being halachically Jewish requires acknowledging the mitzvos we must perform. Someone who rejects the mitzvos thereby rejects the concept of being Jewish.

GERIM ARE SPECIAL

Once a potential ger persists in his determination to join the Jewish people, the beis din will usually recommend a program whereby he can learn about Judaism and that sets him on track for giyur. A ger tzedek should be treated with tremendous love and respect. Indeed, the Torah gives us a special mitzvah to “Love the Ger,” and we daven for them daily in our Shmoneh Esrei!

Throughout the years, I have met many sincere gerim and have been truly impressed by their dedication to Torah and mitzvos. Hearing about the journey to find truth that brought them to Judaism is usually fascinating. What would cause a gentile to join the Jewish people, risk confronting the brunt of anti-Semitism, while at the same time being uncertain that Jews will accept him?  Sincere converts are drawn by the truth of Torah and a desire to be part of the Chosen People. They know that they can follow the will of Hashem by doing seven mitzvos, but they insist on choosing an all-encompassing Torah lifestyle.

One sincere young woman, of Oriental background, stood firmly before the Beis Din. “Why would you want this?” questioned the Rav.

“Because it is truth and gives my life meaning.”

“There are many rules to follow,” he cautioned.

“I know. I have been following them meticulously for two years,” came the immediate reply. “I identify with the Jews.”

After further questioning, the beis din authorized her geirus, offering her two dates convenient for them. She chose the earlier one, so she could keep one extra Shabbos.
We should learn from the ger to observe our mitzvos every day with tremendous excitement – just as if we just received them for the first time!

It was a big simcha, the birth of twin boys. Avi Habanim, the new Daddy, wondered whether he and Reb Mendel the mohel should recite the brachos once or twice. He also wanted to know whether the bracha after the bris, asher kidash yedid mibeten, is recited separately for each baby or not. Since holding the baby while this bracha is recited is a big honor, this would amount to two extra kibbudim for Avi to distribute – quite an asset in his sensitive family!

Response:

When celebrating the Habanim sons’ bris, the older son was brought to shul first; the mohel recited the bracha of al hamilah prior to performing the older boy’s bris. Avi then recited the bracha lehachniso bivriso shel Avraham Avinu, to bring him into the Covenant of Avraham our forefather. After the bris was completed, Uncle Max was honored with reciting the bracha asher kidash yedid mibeten prior to naming the baby Peretz after Uncle Max’s late father. After Max’s booming baritone rendition was complete, the mohel recited the mishebeirach wishing Peretz a speedy recovery and then began Aleinu, the customary closing prayer to the bris ceremony.

Now the Second Bris

After Aleinu and kaddish were completed, Reb Mendel, Avi and Uncle Herman (I will soon explain why he, and not Uncle Max) took a brief walk outside the shul, and then Avi’s younger son arrived just in time for his bris. Reb Mendel declared kvatter, the standard announcement politely asking people to end their conversations because the bris is beginning. Mendel recited the bracha al hamilah a second time and Avi then recited the bracha lehachniso again. After the bris was completed, Uncle Herman was honored with reciting the bracha asher kidash yedid mibeten prior to naming the baby Zerach.

The Dvar Torah

At the banquet celebrating the brisin, Avi began his comments by thanking Hashem not only for the birth of two healthy boys, but also for the opportunity to have had time to analyze a complex halachic topic that he had never previously researched. He then devoted his “Bris Torah” to sharing his research on the subject at hand. He began by noting that most early authorities contend that one should not recite the brachos twice, but recite one al hamilah and one lehachniso bivriso for both brisin (this is the commonly used plural). When following this approach, one should be careful not to talk about anything not germane to the bris prior to performing the second bris (see Beis Yosef, Yoreh Deah 265; Gra”z 213:7).

Lehachnisam bivriso

Indeed, even the text of the bracha recited by the father changes to the plural: lehachnisam bivriso shel Avraham Avinu, to bring them into the Covenant (Beis Yosef; Rama, Yoreh Deah 265:5). The Rama even amends the prayer that includes naming the child to plural by saying kayem es hayeladim.

Among those authorities who follow this approach, we find a dispute concerning when Dad recites his bracha lehachnisam; although some imply that he should recite it immediately after the mohel recites his bracha on the first bris (Yam shel Shelomoh, Chullin 6:9), most contend that he should not recite it until after the mohel performs the second bris (Shu”t HaRashba 1:382). This dispute concerns whether the optimal time to recite this bracha (on every bris) is prior to the performing of the bris, assuming that it is a bracha on the performing of the mitzvah, or afterwards, considering it a bracha of praise (see Tosafos, Pesachim 7a s.v. Beliva’eir). This is a complex discussion on its own that we will need to leave for now; perhaps it is a topic for a future bris. In order to accommodate both approaches, the father usually recites lehachniso bivriso immediately after the mohel begins removing the foreskin but prior to his peeling back the membrane underneath that is halachically called the or haperiyah.

Asher Kidash

There is an additional dispute whether to recite the bracha asher kidash yedid mibeten (recited after the bris and before the baby is named) twice or only once. Rabbeinu Yeruchem implies that one should recite it after each bris, whereas the Beis Yosef disagrees, contending that it should be recited only once — after the second bris. I would like to note that a much earlier authority than the Beis Yosef, the Tashbeitz (2:42), already ruled exactly as the Beis Yosef did — that it should be recited only once, and after the second bris, so that it refers back to both brisin.

Avi noted that some might be concerned about the following curious problem. Since we usually name the child immediately after reciting the bracha asher kidash yedid mibeten, and one is now reciting only one bracha for both boys, how does anyone know which child was given which name? (Avi then noted tongue-in-cheek that in his particular instance this probably would not be such a concern, since people could always refer to Chumash and see that Peretz is the older twin.)

Actually, an early halachic source alludes to a response to this question. The Tashbeitz notes that after reciting the bracha asher kidash yedid mibeten, the custom was to pour two different cups of wine and name each baby while holding a different cup, although one recites only one bracha of hagafen for both cups since there is no interruption between them. He notes that there is no real reason to have two cups for this purpose other than to pacify people. One cup of wine for the bracha certainly suffices. Presumably, each cup of wine was brought near the child who was now being named so that people would know which child would bear which name, although it is also clear from the Tashbeitz that there is no necessity to do this.

Avi continued: According to the Rama’s recommendation that one recites only one naming prayer for both boys, obviously one is using only one cup of wine. It also seems that one concludes this prayer by saying viyakaru shemam biYisrael Peretz ben Avraham veZerach ben Avraham. Since one recites only one prayer that then names both boys, presumably the naming follows the order in which they were circumcised.

Double Blessings

Avi then noted a more serious issue: If most poskim contend that one should not recite the brachos twice for the two brisin, why do we ignore this majority opinion! As you can imagine, after researching the shaylah, I asked my rav what to do, and followed his advice. However, before explaining his reasoning, I would like to share with you more of my research.

Truthfully, several different authorities, both early and late, recommend different reasons why one should recite separate brachos for each bris. The earliest dissenting opinion is that of the Baal HaItur, an early rishon, who rules that each bris always requires its own bracha. Why should this be so? Does the Baal HaItur contend that whenever one fulfills a mitzvah twice that each act requires its own bracha? This would mean that when installing several mezuzos one would recite a bracha on each mezuzah, and that a shocheit slaughtering many birds or animals should recite a new bracha before each shechitah. Although there is a recognized very early authority who indeed advocates this position (Rabbeinu Shmuel ben Chofni, quoted by Mordechai, Chullin #658), the other authorities, Baal HaItur included, accept that one recites only one bracha before performing the same mitzvah several times (Tashbeitz 2:42). So why is this case different?

Baal HaItur himself explains that bris milah is different from the other mitzvos mentioned because one may not perform two brisin simultaneously. Presumably, he means that because of the principle of ain osim mitzvos chavilos chavilos, one may not “bundle” together two mitzvos and perform them together because this implies that one finds performing mitzvos a burden that one wants to be rid of. The logic is that since I cannot perform the second bris until after I perform the first, the first bris is in effect an interruption between the bracha and the second bris (Shu”t Maharam Shick, Yoreh Deah #250).

Most early authorities dispute with the Baal HaItur’s logic. Although they presumably agree that one may not perform both brisin simultaneously because of safety concerns and because of the principle of ain osim mitzvos chavilos chavilos, they feel that this does not create a sufficient reason to require a new bracha on the second bris. Remember that the mohel knows that he will be performing a second bris when he recites the bracha on the first child.

Although most early authorities rule differently, some seem somewhat unconvinced that one is forbidden from reciting separate brachos on each bris. For example, someone sent the Rashba a letter inquiring whether it is correct to recite only one bracha when performing two brisin. The Rashba responded that he had never been in attendance when two brisin occurred together and consequently was unaware of an accepted practice. Logically, he feels that one should recite only one bracha, just as a shocheit should recite only one bracha prior to performing multiple shechitos, although it is clear from the Rashba’s discussion that he would certainly defer to a minhag differing from his ruling (Shu”t HaRashba 1:382).

Later Authorities

Avi continued his discussion by mentioning that the Tur cites the opinion of the Baal HaItur, but then quotes his father, the Rosh, who disputed the Baal HaItur’s conclusions. The Rosh compares this case to having two newly married couples in attendance at one sheva brachos, and whether one should recite two sets of brachos, one for each couple, or one series of brachos for both. He concludes that one should recite one set of brachos for both couples, and rules that when performing brisin on twins that one should recite only one series of brachos for both. Clearly, there is concern that one is reciting unnecessary brachos, brachos she’ainam tzricha, which is a violation of halacha. The Rosh then notes that this is true even if there are two different mohalim involved – and even if the two babies are from different families — one mohel should recite the bracha before performing the first bris with the other mohel present and include the second mohel in his bracha. The second mohel should have in mind to be included in this first one’s bracha. He then also rules that the same is true for the bracha recited after the bris, asher kidash yedid mibeten – concluding that this bracha should also be recited only once for both children, and even if the second child is not present when the first bris is performed since one knows that one will be performing both brisin (Shu”t HaRosh 26:4). Of course, this presents an interesting question, since this bracha is recited after the bris, and one may have already performed the first bris before the second baby arrived. The authorities conclude that even so, one should delay reciting the bracha asher kidash yedid mibeten until the second bris is performed, and then recite it after the second bris with intent for the first bris as well.

To sum up, there is a dispute between the Baal HaItur and the Rosh whether one must recite separate brachos on these two brisin, or whether one is required to recite one bracha on both brisin.

Other reasons

Other, later, authorities present completely different reasons why one should not recite the brachos on two brisin together. The Beis Shmuel (Even HaEzer 62:3) quotes the Perisha as stating that one should not make two brisin together because of ayin hora, just as one should not perform two wedding ceremonies together. According to the Perisha, the concern is not about the brachos, but about the ceremony itself, and that therefore one should complete one bris ceremony before beginning the next one. However, most other authorities do not share this concern (see Taz, Yoreh Deah 265:11 for one approach why).

We should note that the Perisha’s approach results in a different procedure than the Baal HaItur would advise. According to the Perisha, one should not bring the second baby to the location of the bris until after the first bris is complete, whereas according to the Baal HaItur, one may bring both babies at the beginning and conduct the two brisin step-by-step one after the other.

Avi then mentioned a different approach why we should not bring the two babies together. If we remember the Baal HaItur’s position, he contended that simultaneously performing the bris act for both babies violates ein osin mitzvos chavilos chavilos, bundling together mitzvos. However, the Baal HaItur was not concerned that bringing the babies together violates ein osin mitzvos chavilos chavilos. However, there are authorities who feel that bringing two babies together with the intent of performing their brisin consecutively involves a problem of ein osin mitzvos chavilos chavilos (see Magen Avraham 147:11). Thus, we have two authorities who advise against bringing the two babies together to perform their brisin together . We are now going to present a third reason not to do this.

Interrupting the Brachos

Most authorities rule that if someone interrupted after reciting the bracha for the first bris, he must recite a new bracha for the second bris. They contend that it is prohibited to interrupt because this now causes the recital of a new bracha, which is a bracha she’ainah tzricha, an unnecessary bracha. For this reason, the Maharshal reached an interesting conclusion: Departing from the Rosh’s conclusions, he contended that when two different families are making a bris, one should have them each recite its own brachos. He voices two different reasons for his conclusion:

1. There is likelihood that they will interrupt, which requires a new bracha, but fail to recite the bracha.

2. When dealing with two families, one needs to be concerned that they will get into a fight over who recites the brachos.

As a result, the Maharshal recommends making certain that the two brisin have an interruption between them to guarantee that they require two separate brachos. This alleviates the possibility of a machlokes and also guarantees that the proper brachos will indeed be recited (Yam shel Shelomoh, Chullin 6:9).

The Shach’s Conclusion

The Shach (Yoreh Deah 265:15) takes the Maharshal’s concerns even further, being concerned that even in the case of twins, there will be interruptions between the two brisin, and that one should therefore separate between them. In taking this position, he is disputing the conclusions of most Rishonim, and those of the Shulchan Aruch, Rama, and Taz, although one could argue that he was not disagreeing as much as reflecting changing patterns of human behavior. It may be that in earlier generations, people exhibited better self-control and remained quiet between the two brisin, whereas in his generation they did not.

Differing Customs

“If I have not yet put you to sleep,” the erudite father continued, “I will return to the original dispute I mentioned above between the Baal HaItur and the Rosh whether one must recite separate brachos on these two brisin, or whether one is required to recite one bracha on both brisin. Among the later authorities, there is much discussion whether the custom follows the Baal HaItur or the Rosh. The Bach records that in his day this was dependent on local custom, some places following the Baal HaItur’s approach of reciting separate brachos, and others following the Rosh. He mentions that the custom in Cracow followed the Rosh. The Bach concludes that the preferred practice in a place without an established custom is to bring one baby and perform his bris with its brachos, and then when finished bring the second baby and recite separate all the brachos again.

“What is the Sefardic Custom?

“The Tashbeitz, who was the Chief Rabbi in Algiers, a Sefardic community, reports that he attended many brisin of twins and never saw two brachos recited. This is also the conclusion of the Shulchan Aruch, usually the source for all Sefardic custom and practice. Nevertheless, some authorities quote an old established practice in Egypt, a Sefardic community, of performing the first bris with all its brachos, then reciting pesukim and similar things to create an interruption, following which they performed the second bris with all the brachos again (Shu”t Darchei Noam, Yoreh Deah #27, quoted by Pischei Teshuvah 265:10).

“A similar practice is noted in Nineteenth Century Hungary (Shu”t Maharam Shick, Yoreh Deah #250). Thus, it appears that in different places throughout Jewish history there were different established practices. However, Rav Elyashiv takes much umbrage at this practice, claiming that since most authorities quoted rule that one should recite only one bracha, they were also aware of minhagim, and that the places where the minhag was otherwise are the exception, not the rule (Introduction to Otzar HaBris).

“With this information, I asked my rav a shaylah, and he told me that he has attended many brisin of twins, and that the practice is always to perform one bris, make a slight interruption, and then begin the second. He told me that some people provide refreshments between the two brisin, both to accomplish more of an interruption and to have a “bris seudah” for the first twin.

“In Conclusion

“Prior to thanking all those who have helped us, I want to share with everyone the idea that we should recognize the paramount importance of being careful with our brachos. Here we see how much ink was used to clarify whether one should recite one or two brachos. Certainly, it behooves us to be careful about our recital of our brachos.”

The mitzvah of Bris Milah has been enhanced by many beautiful customs. We will explain the background of these minhagim in the course of a guide to the honors bestowed during a bris and the steps of a bris procedure.

THE DIFFERENT HONORS AT THE BRIS

Each of the “kibbudim” at a bris performs a different mitzvah. The sandek is the greatest honor at a bris since the milah is performed upon his lap. The Zohar teaches that bringing one’s son to a Bris Milah is equivalent to building the mizbayach (the altar) in the Beis HaMikdash and offering all the korbanos of the whole world (Parshas Lech Lecha 95a). Since milah is compared to a korban, the sandek himself is like a mizbayach (altar). In addition, since holding the baby assists the mohel perform the bris, the sandek also partly fulfills the mitzvah of performing the bris.

The kvatter and kvattern perform the mitzvah of transporting the baby to the bris. Frequently, this honor is given to a couple who do not as yet have children. It is hoped that as reward for performing the mitzvah of bring a child to the bris, they will soon merit to bring their own child to a bris.

The other honors at a bris include: placing the baby on Eliyahu’s chair, reciting the b’rachos after the bris, naming the baby (in some places the last two honors are combined), and holding the baby during the b’rachos and the naming.

KVATTER

With this word, the mohel calls the assembled to attention. The “kvaterin” carries the baby in from the women’s area and hands him to her husband, the kvater, who brings the baby to the mohel. Some have the custom of sharing the mitzvah of bringing the baby to the bris among several people, an honor called “cheika.” Those who follow this practice should make sure that each honoree brings the baby closer to where the bris will take place. (I have seen brisin where the people honored with cheika carried the baby in the opposite direction from where the bris was to be held. These individuals did not realize that they were doing the opposite of what they were supposed to be doing and thus not performing a mitzvah.)

Two chairs of honor are set up, one for Eliyahu (Shulchan Aruch Yoreh Deah 265:11) and one for the sandek who will hold the baby during the bris.

WHY IS THERE A CHAIR FOR ELIYAHU?

According to the Midrash Eliyahu Hanavi attends every bris, and the chair that the baby is placed upon before the bris is referred to as Kisay shel Eliyahu. Before Eliyahu rose to heaven and assumed the role of an angel, he was the prophet responsible to admonish the wicked monarchs Achav and Izevel. Eliyahu was a zealot for Hashem’s honor (Melachim 1:19:10, 14) and accused Bnei Yisrael of abrogating Bris Milah. As a response, Hashem decreed that Eliyahu will be present at every bris to see that the Jews indeed fulfill bris milah. Chazal therefore instituted that there should be a seat of honor for Eliyahu at every bris (Pirkei D’Rabbi Eliezer, Chapter 29; Zohar 93a). Eliyahu thus came to be called the “Angel of the Covenant,” since he attends and attests to every bris (Malachi 3:1, 23 with Rashi).

THE SANDEK

The poskim discuss whether it is better to give the mitzvah of sandek to a great tzadik or to a family member (see Shu’t Chacham Tzvi #70). Incidentally, some poskim contend that the father of the baby should be sandek since he thereby assists in the bris which is his mitzvah to perform (Shu’t Divrei Malkiel 4:86). However, the prevailing custom is to give the honor either to a grandparent or other honored family member or to a tzadik or talmid chacham.

Very special rewards and blessings are associated with being sandek. For this reason, the Rama cites a custom not to honor the same person with being sandek twice (Yoreh Deah 265:11; compare Gra and Noda Bi’yehudah, YD 86; see also Shu’t Chasam Sofer, Orach Chayim #159).

There is a custom, seven hundred years old, that the sandek immerse himself in a mikveh before the bris. Since the sandek is compared to the mizbayach, he must make every attempt to make himself pure and holy (Maharil).

B’RACHOS AT A BRIS

Several b’rachos are recited both before and after the bris. Immediately before performing the bris, the mohel recites the b’racha “asher kidishanu b’mitzvosav v’tzivanu al hamilah” (that He commanded us to observe the mitzvah of Bris Milah), and the father immediately recites “asher kidishanu b’mitzvosav v’tzivanu lihachniso bivriso shel Avraham Avinu” (that He commanded us to bring the child into the Covenant of Avraham). If the father is himself the mohel, he recites both b’rachos and then performs the bris. Among Sfardim, the father also recites the b’racha shehechiyanu (Yoreh Deah 265:7). In Eretz Yisrael, shehechiyanu is recited at a bris even by Ashkenazim. In Chutz LaAretz, most Ashkenazim do not recite shehechiyanu at a bris.

WHY ARE TWO B’RACHOS RECITED ON THE MITZVAH OF MILAH?

It is indeed unusual to recite two different b’rachos before fulfilling a mitzvah, each beginning with the words “asher kidishanu b’mitzvosav”. Why do we recite two such b’rachos?

According to one opinion, the b’racha of lihachniso is recited on the mitzvah of training the child in mitzvos (chinuch) rather than being exclusively about milah (Abudraham). It is recited at the bris since this is the first mitzvah that the father performs in raising his child as a Torah Jew.

An alternative approach is that this b’racha is an appreciation for bringing the child into the kedusha of Klal Yisrael (Aruch HaShulchan 265:5-8). According to this approach, the b’racha of lihachniso is a b’racha of thanks and praise rather than being a b’racha on the performance of a specific mitzvah (Tosafos Pesachim 7a).

WHY DO SOME COMMUNITIES RECITE SHEHECHIYANU AT A BRIS, AND OTHERS DO NOT?

This machlokes is hundreds of years old. Usually, we recite a shehechiyanu on a mitzvah that is observed on special occasions, such as Yom Tov, Pidyon HaBen, Shofar, and Lulav. Thus, it would seem that one should recite shehechiyanu at a Bris Milah. Nonetheless, the old minhag in Ashkenaz was to omit shehechiyanu at a Bris Milah (Tosafos Sukah 46a; Rama 265:7). What was the reason for this minhag? (The custom among Sfardim was, and is, to recite shehechiyanu at a bris.)

The poskim offer several reasons why there is no shehechiyanu. Some suggest that shehechiyanu is recited only on a mitzvah that is dependent on a date, such as a Yom Tov, or a very specific time, such as Pidyon HaBen, which is always performed on the thirtieth day after birth (Ran, Sukah Chapter 4). Although Bris Milah can only be performed beginning the eighth day, since there are occasions when one cannot perform the bris on the eighth day (such as when the baby is ill or when it is uncertain which day the baby was born), there was no establishment of shehechiyanu.

An alternative approach is that Chazal did not institute reciting shehechiyanu at a bris because it is not a totally joyous time, since the baby suffers pain. However, other poskim disagree with this reason, pointing out that one recites shehechiyanu when hearing news that includes both good and bad tidings (see Gemara Berachos 46b, 59b). Thus, suffering does not preclude reciting the b’racha of shehechiyanu (Hagahos Maimoniyos, Hilchos Milah 3:4, who also cites two other reasons for the Ashkenazic custom).

The Gra, himself an Ashkenazi, disagreed with the accepted practice and ruled that one should recite shehechiyanu at a bris (Yoreh Deah 265:36). Since disciples of the Gra established the contemporary Ashkenazic community in Eretz Yisrael, they followed his practice to recite shehechiyanu at a bris. As a result, the custom in Eretz Yisrael developed that everyone recites shehechiyanu at a bris. The prevalent Ashkenazic practice in Chutz La’Aretz follows the opinion of Tosafos and Rama not to recite shehechiyanu.

WHAT B’RACHOS ARE RECITED AFTER THE BRIS?

After the bris is performed, two more b’rachos are recited over a cup of wine- first a borei pri hagafen and then a lengthy special b’racha that begins with the words “Asher Kideish Y’did Mi’beten,” (Shabbos 137b). (Sfardim have the custom to recite an additional b’racha, “Borei Atzei Besamim” on a hadas, after the b’racha on the wine, see Shulchan Aruch 265:1.) This b’racha translates, “Praised are you, Hashem our G-d King of the Universe, Who sanctified Yitzchok Avinu from birth, placed a permanent mark on his body, and sealed the holy covenant upon his descendants. As a reward for fulfilling Bris Milah, Hashem the living G-d, command that Avrohom’s descendants be saved from the punishment of Gehenom (Shabbos 137b with Rashi; Shach Yoreh Deah 265:5).

An alternative interpretation of the beginning of the b’racha is that it refers to the three forefathers, Avraham, Yitzchok, and Yaakov (Tosafos Shabbos 137b).

WHY WAS THIS B’RACHA INSTITUTED?

It is unusual to have an additional b’racha recited AFTER a mitzvah is performed.

Some Rishonim explain that milah warrants an extra b’racha since it was commanded to the Avos before the Torah was given (Tosafos Rid to Shabbos 137b). This theme is reflected in the structure of the b’racha, since it refers to the Avos Avraham and Yitzchok (and also Yaakov according to the second explanation above).

The wording of the b’racha is unusual, since it instructs Hashem to command that Avrohom’s descendants be saved from the punishment of Gehenom. What is meant by this unusual b’racha?

This b’racha can be explained by the following Agada. The Gemara teaches that Avrohom Avinu rescues all of his descendents from Gehenom, no matter how many sins they performed during their time on Earth, provided they observed Bris Milah and did not intermarry (Gemara Eruvin 19a). Thus, the observance of just this one mitzvah may be enough to guarantee that a Jew not end up in Gehenom. We ask Hashem to command that all Jews be protected in this way (Shach 265:5).

An alternative approach to explain this bracha is that the Hebrew word “tzavei” should instead be pronounced “tzivah,” He commanded. In this interpretation of the bracha we are not asking Hashem to command- we are mentioning that in this merit he did command (Shaylas Yaavetz #146). Some prominent gedolim have the practice of saying both versions of the bracha, although others take issue with this practice (Shu’t Nimla Tal).

THE NAMING OF THE BABY

After the b’racha “Asher kideish”, the baby is named in a special text that quotes the Prophet Yechezkel (16:6), “vo’e’evor olayich vo’er’eich misbo’seses b’domoyich vo’omar loch ‘b’domayich chayi’ vo’omar loch ‘b’domayich chayi’,” “And I passed over you and I saw you wallowing in your blood. And I said to you, ‘By your blood, live!’ And I say to you, ‘By your blood, live!’

Reading this posuk presents us with the question: Why is the clause “And I say to you, ‘By your blood, live!’” repeated?

The Targum explains this posuk to be quoting Hashem, “When you, the Jews, were deeply enslaved in Mitzrayim, I remembered the covenant made with the Forefathers. I saw your suffering and told you that I will have mercy on you because of the blood of Bris Milah and will redeem you because of the blood of Korban Pesach.” Thus, according to Targum, the two statements “By your blood, live!” refer to the blood of two different mitzvos, Bris Milah and Korban Pesach. (Because of the latter reason, this posuk is also quoted in the Pesach Hagadah.)

A similar interpretation of this posuk appears in a Midrash: “When the Jews exited Mitzrayim they had Bris Milah performed. They took the blood of the milah and mixed it with the blood of Korban Pesach and placed it on the lintels of their doors. For this reason the pasuk repeats, ‘By your blood, live!’ one reference to blood of milah, and the other to blood of Korban Pesach (Pirkei D’Rabbi Eliezer, Chapter 29)

WHEN SHOULD ONE DRINK FROM THE CUP?

The custom is that one places a bit of the wine in the baby’s mouth when reciting the words, “b’domayich chayi.” However, when does the person reciting the b’rachos drink the wine?

According to some opinions, one should drink the wine immediately after completing the b’racha of “Asher Kideish” in order to avoid an interruption (a hefsek) between the b’racha of “HaGafen” and drinking the wine (Tur Yoreh Deah 265). Although the b’racha of “Asher Kideish” intervenes between HaGafen and drinking, this is not considered a hefsek just like reciting the b’rachos of kiddush or havdala between “HaGafen” and drinking the wine are not. However, naming the baby constitutes an interruption since it is not a b’racha. Others contend that naming the baby is not considered an interruption between the b’racha and the drinking of the wine since it is part of the procedure (Itur). To avoid this shaylah, the most common practice in Chutz La’Aretz is to honor one person with reciting the b’rachos and someone else with naming the baby. This way the honoree who recited the b’rachos can lick the wine off his fingers in a discreet way, thus avoiding the hefsek. In Eretz Yisrael, the prevalent custom is to honor one person with both kibudim; some follow the Tur’s approach that he drinks from the cup before he names the baby whereas others follow the Itur’s approach that he does not drink the wine until the baby is named.

WHO DRINKS THE WINE ON A FAST DAY?

Since one may not drink the cup of wine, can one recite a b’racha on the wine if it will not be drunk? Indeed, many poskim rule that making Borei Pri HaGafen on the wine constitutes a b’racha levatalah, a b’racha recited in vain (Itur; Shu’t Ran #52; Mordechai, end of Yoma). Others contend that reciting Borei Pri HaGafen without drinking the wine is not a b’racha levatalah since the b’racha is part of the procedure (Rabbeinu Tam). There are numerous opinions among early Rishonim what is the correct procedure to observe.

Some contend that one should not make the b’racha of HaGafen at all on a fast day (Itur; Shu’t Rashba 7:536). (There are poskim who distinguish between Yom Kippur, when the mother may not drink the wine, and other fast days, where the mother might be available to drink the wine.) In their opinion, when no adult will drink the wine, Borei Pri HaGafen should not be recited. (This follows the first opinion quoted above.)

Others go one step further, contending that one cannot even recite the b’racha of Asher Kideish. In their opinion, since the wine cannot be drunk it is not permitted even to pour a cup of wine for a mitzvah without drinking it subsequently (Mordechai end of Yoma, quoting Rabbeinu Yaakov ben Shimshon). Furthermore, they contend that Asher Kideish may not be recited in the absence of the wine.

This last point is disputed by a prominent Rishon, Rav Yitzchok ibn Giat, who contends that one recites the b’racha Asher Kideish without any wine (quoted by Abudraham and Beis Yosef 265). In his opinion, it is only preferential, but not essential, to recite Asher Kideish over a cup of wine.

Others rule that you make a b’racha on the cup of wine but don’t drink it until after the fast (Rav Tzemach Gaon, quoted by Itur). This opinion contends that when reciting “Borei Pri haGefen” on a mitzvah it is not necessary to drink the cup of wine to avoid a b’racha levatalah. The reason we drink the cup of wine is that it is not a kavod for a “kos shel b’racha” to be left undrunk. However, this requirement is fulfilled when the cup of wine is drunk the evening after the bris.

WHAT DO WE DO WITH THE FORESKIN AFTER THE BRIS?

The foreskin is placed in some sand or earth to remind us that the Jews in the desert buried the foreskins from the milah in the earth (Shulchan Aruch, Yoreh Deah 265:10 from Pirkei D’Rabbi Eliezer, Chapter 29). It also reminds us that the Jews will be as plentiful as the dust of the earth (Breishis 28:14).

TWINS

If there are two milos (plural of milah) to be performed on the same day, such as when there are twins, should one repeat all the b’rachos when performing the second bris, or should one perform the bris on the second child without repeating the b’rachos? There is a dispute among poskim which to do, some poskim rule that when performing two mitzvos that cannot be performed simultaneously one should recite two separate b’rachos (Itur). Others contend that one should recite separate b’rachos because of “ayin hora” that could result (Rama, Prisha, and Beis Shmuel, Even HaEzer 62:3). Although Shulchan Aruch rules that one should recite only one set of b’rachos (Yoreh Deah 265:5), the widespread practice is to make separate b’rachos for each bris, and to interrupt between the two brisos by going outside to require a new b’racha (Shu’t Darchei Noam, Yoreh Deah #27, cited by Rabbi Akiva Eiger and Pischei Tshuvah to Yoreh Deah). (It should be noted that Mishnah Berurah [8:34 & 639:48] rules that changing one’s location after performing a mitzvah does not require a new b’racha.)

BRIS MILAH AND ATONEMENT

The Midrash tells us that Avraham Avinu’s bris took place on Yom Kippur on the place where the Mizbayach of the Beis HaMikdash was later built. Thus, the atonement both of Yom Kippur and of korbanos is combined in the observance of Birs Milah. In the words of the Midrash “Every year HaKodosh Boruch Hu sees the blood of the Bris of Avrohom Avinu and He atones for all our sins.” Thus, Bris Milah guarantees the future redemption of the Jewish people, and the kaparah (atonement) from all sins (Pirkei D’Rabbi Eliezer, Chapter 29).

The dollar value of the five sela’im varies, depending on the market price of silver. Some people have the custom of giving the cohen six coins, in case the coins are defective and do not contain enough silver.

WHO IS REQUIRED TO REDEEM THE BECHOR?

The obligation rests on the father of a boy who is the first-born of his mother and was born through natural delivery. If the father is a cohen or a levi, or if the mother is the daughter of a cohen or a levi, there is no mitzvah of pidyon haben. Since pidyon haben is dependent on the boy being the first-born of his mother, her pedigree is taken into consideration concerning whether there is a requirement to redeem her son (Bechoros 47a).

If a boy is born from a non-Jewish father and a bas levi, there is also no mitzvah of pidyon haben since his mother is the daughter of a levi. However, if a boy is born from a non-Jewish father and a bas cohen, there is a mitzvah. Since the daughter of the cohen has violated her kedusha by being with a gentile, she loses her status as a bas cohen. Because of this relationship, she loses her rights as the daughter of a cohen – for example, she may no longer eat terumah even when we can reestablish tehorah.

Similarly, the son of a yisroel who marries a bas cohen who had previously been with a gentile is required to be redeemed.

Incidentally, there are poskim who rule that the grandson of a non-Jewish father and a bas levi is also excluded from pidyon haben. This means that the son of a non-Jewish father and a bas levi does not have a mitzvah to redeem his son. Since this man does not have a Jewish father, he is considered to be a levi pasul who is not obligated to perform pidyon haben on the basis of his mother being a bas levi. (Note that Shu’t Maharam Shick, Yoreh Deah  #299 rejects this ruling.)

WHAT HAPPENS IF A COHEN MARRIED A DIVORCEE?

If a cohen married a divorcee or any other woman prohibited to him, the children born are challalim, which means that they have become defiled from kehuna. The daughters may not marry cohanim, and the first-born son born to this cohen from this woman needs to be redeemed just like any yisroel. Furthermore, his son’s son will also require pidyon haben like any other yisroel.

WHAT IS THE HALACHA OF A BECHOR BORN THROUGH CAESARIAN SECTION?

There is no mitzvah of pidyon haben if the boy was delivered through caesarian section. His younger brother is also not considered a first-born even if he is born through natural delivery. Similarly, a boy born after a miscarriage is not a bechor for purposes of the mitzvah of pidyon haben (Bechoros 46a). This last halacha depends on how far advanced was the terminated pregnancy, a topic that we will leave for a different time.

WHAT HAPPENS IF NO ONE REDEEMS THE BECHOR?

If the father cannot or does not redeem the bechor, other people can redeem him but are not required to do so. However, if no one redeemed the bechor as a child, then he is required to redeem himself when he becomes an adult (Kiddushin 29a).

Many men who are not from an observant background did not have a pidyon haben. At a pidyon haben that I once performed (I am a cohen), the grandfather of the newly redeemed baby came over to me, saying, “You know, I am also a first-born and a baal tshuva. I can’t imagine anyone ever made a pidyon haben for me.” And so two pidyonim were performed on the same day, one for the grandson and one for the grandfather!

WHAT IS THE PROCEDURE?

As opposed to other mitzvos such as bris mila and a wedding where the mitzvah is performed first and then the festive meal is eaten, pidyon haben is performed during the meal in order to call attention to the mitzvah.

The procedure is as follows: after the assembled have made hamotzi and taken their seats, the father brings the bechor to the cohen, who is seated at a place of honor. The custom is to bring the bechor on a large silver platter. Many have the custom of placing sugar cubes, cloves of garlic, and jewelry on the platter. The father declares to the cohen that the baby is a first-born child, a male that must be redeemed.

The cohen then responds with the famous and enigmatic question: “Mai Ba-is Tefay?” Which do you prefer? Would you rather have your child or the five sela’im of pidyon?

The father responds that he would prefer his son, and that he is prepared to redeem his son. He then recites the bracha on the mitzvah and the bracha of shehechiyanu, and places the coins into the cohen’s right hand. The cohen waves the coins over the head of the bechor while blessing him. Then the cohen recites the Birkas Cohanim and other words of blessing on the head of the bechor. The procedure is completed by the cohen reciting a bracha on a cup of wine and drinking it.

WHAT DOES IT MEAN WHEN THE COHEN SAYS “MAI BA-IS TEFAY?” — DOES THE FATHER REALLY HAVE A CHOICE?

The wording of the cohen’s question, “Which do you prefer?” — implying that the father has a choice — i­­s extremely strange. Halachically, there is no choice or option. The father has a mitzvah to fulfill, which he is required to observe. So why does the cohen suggest to the father that he has a choice?

The text of our pidyon haben ceremony goes back 1,000 years, and since that time probably tens of thousands of interpretations have been suggested for this question. Think of your own answer to this question, and you’ll have something to share with others the next time you attend a pidyon haben!

WHY DO SOME PEOPLE PLACE GARLIC CLOVES AND SUGAR CUBES ON THE PLATTER THAT HOLDS THE BABY?

There are many customs that have developed around the mitzvah of pidyon haben. Some people place pieces of garlic, sugar cubes, or candies alongside the bechor when he is brought in for the pidyon. Among the many reasons I have heard for this custom: The sugar cubes show that the mitzvos are sweet, and garlic is a symbol and segula for fertility.

WHEN IS THE PIDYON PERFORMED? WHY IS THE MINHAG TO PERFORM PIDYON HABEN IN THE AFTERNOON?

The Torah says that the mitzvah is to redeem the bechor when he turns a month old.

How does one determine that a child is a month old? Although one is accustomed to thinking of a Jewish month as being either 29 or 30 days long, these are actually calculations of the calendar which deal only with complete days. There is a dispute in halacha as to how one determines that the bechor is a month old.

One opinion follows the day-count method and rules that the pidyon haben should take place on the 31^st day after the boy was born, counting his day of birth as day one (Magen Avraham 339:8).

However, others rule that a month for pidyon haben is determined by the astronomical method, meaning the same amount of time that transpires from one new moon to the next. Since the time that transpires from one new moon to the next is 29 days, 12 hours and 793/1080 of an hour (usually called 793 chalakim), the time for pidyon haben begins when the bechor is exactly 29 days, 12 hours and 793 chalakim old (Shach 305:12).

The common practice is not to perform a pidyon haben until both opinions have been fulfilled.

Usually, by the morning of the 31^st day, the bechor is 29 days, 12 hours and 793 chalakim old. However, if the bechor was born shortly before sunset on a long summer day, daybreak on the morning of the 31^st day is less than 29 days, 12 hours and 793 chalakim since his birth. In this situation, one should wait to perform the pidyon until he is 29 days, 12 hours and 793 chalakim after birth (Pischei Tshuva 305:17). For this reason, it is a common custom to schedule a pidyon haben on the afternoon of the 31^st day, which is always an appropriate time according to both opinions.

When the earliest time to perform the pidyon is on an erev Shabbos or erev Yom Tov, the pidyon should be scheduled in the morning (Mishna Berura 249:13). In the rare case that it is not yet 29 days, 12 hours and 793 chalakim after birth, one should calculate when the 29 days, 12 hours and 793 chalakim after birth falls out and schedule the pidyon then.

When the 31^st falls on Shabbos or Yom Tov, the pidyon should be scheduled for Motzei Shabbos or Motzei Yom Tov (Shu”t Noda Biyehuda Tenina, Yoreh Deah #187).

WHAT DOES ONE DO IF THE THIRTY-FIRST DAY FALLS OUT ON A FAST DAY?

There are two practices mentioned by the poskim. One approach is to perform the pidyon during the fast day so as not to delay the opportunity to observe the mitzvah, and conduct the festive meal at night after the fast is over. The other approach is to delay the pidyon until the night after the fast, and then perform the pidyon during the meal as it usually is done (Shach, Yoreh Deah 305:12).

CAN ONE PERFORM THE MITZVAH OF PIDYON HABEN BY GIVING THE COHEN A CHECK OR A BOND?

One does not fulfill the mitzvah of pidyon haben if one gives the cohen an IOU note or a bond. The yisroel must give the cohen something that has inherent value such as merchandise. A check is an order of payment instructing the bank to release funds, but itself has no inherent value. Therefore a check is not equal to cash and is not valid for pidyon haben.

It should be noted that according to many prominent gedolei poskim, our paper money or coins should not be used for pidyon haben because they also do not have inherent value. (Shu”t Chasam Sofer, Yoreh Deah #134; Aruch Hashulchan (305:18) and Shu”t Oneg Yom Tov YD # 102 all rule not to use our money for pidyon haben.)

Usually the pidyon haben is performed with silver coins, although at one pidyon haben I performed the father handed me 96 grams of silver. When coins are used, they are often supplied by the cohen, in which case he sells them to the father before the pidyon. It is halachically acceptable for the father to pay for the coins by check when he buys them from the cohen, and then give those coins to the cohen for the pidyon.

CAN ONE FULFILL THE MITZVAH BY BUYING THE COHEN A PRESENT?

Yes, as long as the present is worth at least the value of five sela’im (96 grams of silver). However, the prevalent custom is to give the cohen silver coins as mentioned above.

MAY THE COHEN RETURN THE MONEY TO THE FATHER OF THE BECHOR?

The cohen may return the money. However, this should not be his regular practice since it might cause a loss of revenue to other cohanim because yisraelim may stop using them for pidyon haben (Shulchan Aruch Yoreh Deah 305:8). There are some poskim who contend that today the money should be returned since the cohen cannot prove that he is a cohen (Shu”t Yaavetz #155). However, the accepted practice is that the cohen does not return the money (Pischei Tshuva 305:12, quoting Chasam Sofer).

ONCE THE FATHER ASKED A COHEN TO BE THE COHEN AT HIS SON’S PIDYON HABEN, MAY HE SUBSEQUENTLY CHANGE HIS MIND AND USE A DIFFERENT COHEN?

Once the father has asked one cohen to “officiate” at the pidyon haben, he should not ask another cohen. However, if he does give the redemption money to a different cohen, the pidyon is valid (Rama 305:4).

MAY THE FATHER OF THE BECHOR DIVIDE THE MONEY FOR PIDYON HABEN BETWEEN TWO OR MORE COHANIM?

It is preferable not to do this, but if he did so, the pidyon is valid (Pischei Tshuva 305:10, quoting Chasam Sofer).

A RATIONALE FOR THE MITZVAH

It behooves us to consider the reason for the mitzvah of pidyon haben. Following the smiting of the first-born in Egypt, all first-born boys had a certain kedusha, which should have entitled them to a role of service in the Beis Hamikdash.

However, because the bechorim were involved in worshipping the Eigel Hazahav, the Golden Calf, they lost their unique status and could no longer perform any special role in the Beis Hamikdash. Therefore, the bechor must undergo a redemption ceremony to make amends – which is to pay the cohen as a means of  “redeeming” his former kedusha.