The Bankrupt Borrower

This week’s parsha, Behar, includes details about being honest in our business dealings. Is declaring bankruptcy to absolve one of one’s debts, considered honest according to halachah?

The Bankrupt Borrower

Mr. Gomel Chessed shares with his rav, Rav Chacham, the following predicament: “I loaned someone money, and I did not hassle him for payment when he told me that things were tough. Recently, I contacted him to ask if he is in any position to pay back. He replied that he was forced into bankruptcy and thereby absolved all his debts. Does he, indeed, no longer owe me for the loan?”

Gomel’s rav explains that although the Gemara and the Shulchan Aruch do not recognize a concept called bankruptcy, there are authorities who contend that, at least in some circumstances, halachah requires that a bankruptcy court’s decision be honored. Gomel is eager to hear the full explanation, so his rav provides him with some background material to read until they make an appointment to discuss the matter at length.

Gomel truly enjoyed researching the topic, and discovered that he also wanted to know all the related subjects. As a result, he became somewhat of an expert on much of the halachic material germane to his question.

Responsibilities of a Borrower

One of the first topics Gomel researched was the extent that a borrower must go to pay his debts. He was surprised to discover how strongly halachah requires someone to repay his debts and to make his payments on time. In addition, it is strictly forbidden to claim that one is unable to pay a debt when he can, and it is similarly forbidden to hide money so that a creditor cannot collect. This is true even if the creditor is very wealthy.

It is forbidden to borrow money that one does not think he will be able to repay. According to some authorities, money borrowed under the false pretense that the borrower intends to repay it is considered stolen, and not borrowed, funds. The halachic ramifications of this distinction are beyond the scope of this article.

If a debtor’s loan is due and he cannot pay, halachah requires that he sell his house, his furniture and his other household items, if necessary, to repay the debt, unless he can convince his creditor to forgive the debt or to wait longer for payment (Graz, Hilchos Halvaah 1:5).

Since the debtor must use whatever money he has available to pay his debt, he is required to trim his expenditures so that he can pay his creditor. Until his debt is repaid, he may not make significant contributions to tzedakah (Sefer Chassidim #454). Furthermore, he may not purchase a lulav and esrog, but instead must fulfill the mitzvah by borrowing from someone else (see Pischei Teshuvah, Choshen Mishpat 97:8). It goes without saying that luxuries and vacations are out. Someone who uses his money to purchase non-essential items when he has an overdue debt demonstrates a lack of understanding of the Torah’s priorities. One who squanders money and therefore is unable to repay his loans is called a rosho (Rambam, Hilchos Malveh 1:3).

Systematic Collection

Having researched how responsible a debtor must be, Gomel next studied the following topic: If a debtor unfortunately owes more money than he can pay, how does the halachah decide that we divide the debtor’s limited financial resources among his creditors?

Gomel discovered that the halachos governing who collects first are highly complicated. He also discovered that, when there are insufficient financial resources to pay all of the person’s debts, halachah views the priorities of who receives, and how much, very differently from civil law. Here are some basic ideas.

The Gemara works with a concept called shibud by which most debts are automatically secured with property that the debtor owned at the time he created the obligation. When this system was followed, if a debtor defaulted on an obligation, a creditor who exhausted all means of collecting directly from the debtor’s holdings could collect these secured debts from real properties that the debtor once owned and had subsequently sold. The system in place allowed that potential purchasers could find out whether a property had a lien on it prior to purchasing it. (This would loosely parallel what we call today a “title search” performed before purchasing property to ascertain that the property is without any liens and that the seller has clear ownership.) The potential lien on all the properties of a debtor encouraged people to pay their debts so that they could sell their properties more easily, and also enabled people to borrow investment capital.

Who Collects First?

Under the Gemara’s shibud system, when there are two or more claims on a property whose value is less than the outstanding debt, the creditor with the earliest claim collects as much as he can, and, after his claim is paid, the creditor with the next earliest claim collects, and so on (Shulchan Aruch, Choshen Mishpat 104:1).

When Gomel asked contemporary halachic authorities if this system is used today, he was told that one would not be able to collect from such properties unless they were mortgaged.

Why did the halachah change?

Since today no one applies the system of the Gemara, the creditor did not expect to be able to collect from any properties after the debtor sells them. As a result, the creditor did not acquire shibud on any of the debtor’s properties (Shu’t Igros Moshe, Choshen Mishpat 2:62).

Bad Talmudic Debts

When there is no shibud claim on any properties, then, under the Gemara’s system, the outstanding creditors collect, but not proportional to the amount that each is owed. According to most authorities, we still follow whose claim is earliest. Others rule that everyone is paid equally according to the availability of resources (Shulchan Aruch, Choshen Mishpat 104:13 and Sma). Either approach results in a major difference between the Gemara’s system and the modern approach. Under the modern approach, the court calculates what is the ratio of the available resources to the debt, and pays all creditors a percentage of the debt based on the result.

By now, Gomel has studied much of the Gemara and commentaries on the topic of debt collection, and he has a good idea how bad debt was collected in the time of the Gemara. After reviewing his studies with Rav Chacham, Gomel is ready to understand how and if bankruptcy fits into a halachic system. He soon discovers that he now needs to master a very complicated concept of halachah called dina demalchusa dina.

Dina Demalchusa Dina

In the time of the Gemara, most countries and governments were kingdoms. This meant that the people living in an area recognized one individual to be responsible to maintain law and order within the country and to protect the citizenry from external enemies and greedy neighbors. Without a government, people are in constant danger from the chaos that occurs when there is no respect for a central authority. To quote the Mishnah in Pirkei Avos (3:2), “Pray for the peace of the kingdom, for if people are not afraid of it, one man will swallow another alive.” Anyone who has ever seen or read of the mass looting that transpires when there is a breakdown of authority knows exactly what this means.

The king or government requires an army to protect the country from its external enemies, a police force to uphold law and order, and royal palaces and government offices that are well maintained so that the king’s authority is respected. All this requires funding, and the people realize that they need to pay taxes so that the king and/or government can protect them (see Rashbam, Bava Basra 54b s.v. VeHa’amar). The halachah of dina demalchusa dina recognizes that the king and his properly appointed agents have the right to collect taxes (Nedarim 28a).

Din Melech

When the tribes of Israel approached their prophet, Shmuel, requesting that he appoint a king, Shmuel attempted to dissuade them by noting the tremendous power that a king has. He will draft the most talented sons to till his fields, harvest his crops and perform other services; he will draft their daughters as perfumers, bakers and cooks; and he will raise high taxes (Shmuel I 8:11-18). The Gemara (Sanhedrin 20a) cites a dispute as to whether a Jewish monarch has the extensive authority that Shmuel describes or if Shmuel was simply threatening the people in an attempt to dissuade them from having a king. The Rambam (Hilchos Melachim 4:1) and most authorities rule that the king indeed does have this authority.

Some poskim understand that a non-Jewish king, also, draws his authority based on this concept of din melech. That is, the Torah reserved the rights described by the prophet Shmuel for any monarch. (Even for those who contend that Shmuel was merely threatening the people and that the king does not have this extensive authority, the concept of dina demalchusa dina is still accepted; they simply do not consider the din melech of Shmuel to be the source of the law of dina demalchusa dina.)

Democratic Taxes

Although the early authorities discuss dina demalchusa dina primarily in terms of the rights of a king, most later authorities understand that this halachic power exists equally in a democracy (see Shu’t Yechaveh Daas 5:63).

Gomel discovered that the vast majority of halachic authorities regard dina demalchusa dina as a Torah-mandated concept (see Shu’t Dvar Avraham 1:1; Avnei Meluim 28:2; Shu’t Chasam Sofer, Yoreh Deah #314), although there is a minority opinion that contends that dina demalchusa dina was introduced by Chazal (Beis Shemuel, 28:3).

Many authorities rule that a king may not arbitrarily create new taxes; he may only collect that which has been previously established (Ritva, Nedarim 28a; see lengthy list in Encyclopedia Talmudis, Volume 7, page 318, footnote 559). Why is this true? When people appointed the original king to protect them, they accepted certain taxes with which to pay him for his “services.” According to these rishonim, neither this king nor his successors have an arbitrary right to create new taxes or increase taxes without the consent of the governed.

Traffic and Safety Regulations

Thus far, we have seen that dina demalchusa dina governs the right of the king or the government to collect taxes. Dina demalchusa dina also requires obeying rules of the government, such as the prohibitions against smuggling and counterfeiting. However, dina demalchusa dina goes much further. Some authorities maintain that dina demalchusa dina requires everyone to obey government-created rules that are clearly for the common good (Ramban, Bava Basra 55a). One may argue that this includes traffic laws, and regulations governing sanitation, safety and health. Those who do not agree that dina demalchusa dina extends this far feel that dina demalchusa dina is limited to matters that more directly affect the government (see Maggid Mishnah, Hilchos Malveh 27:1). All opinions agree that dina demalchusa dina applies to matters which breach the authority of the governing parties (Igros Moshe op. cit.). The exact extent to which this is applied practically will affect Gomel’s original question, whether dina demalchusa dina applies to bankruptcy law.

No Government Influence

What areas of halachah are not subject to dina demalchusa dina?

Dina demalchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews (Shu’t Harashba 3:109, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26; Shach, Choshen Mishpat 73:39). For example, dina demalchusa dina does not affect the laws of inheritance. These laws are governed by the Torah’s laws of yerushah.

Similarly, the laws of damages (nezakin), the laws of shomrim – responsibility for taking care of someone else’s property – and the property laws involved in  marriage are all areas of halachah in which Jews are required to follow the laws of the Torah. Therefore, when a Jew lends an item to another, the laws governing his responsibility are those of the Torah, not the local civil code. This is because it is no infringement on the government’s authority when people make their own arrangements as to how to manage these areas of their lives (Igros Moshe).

Government Influence

On the other hand, there are certain areas of contract law that are heavily influenced by dina demalchusa dina. For example, the laws of employee relations are governed by local custom (Yerushalmi, Bava Metzia 7:1), and these are usually heavily influenced by civil law.

What about Bankruptcy?

As I wrote above, the Gemara and the Shulchan Aruch do not mention any concept of bankruptcy. Gomel began to research if anyone discusses whether or not halachah recognizes the laws of bankruptcy under the laws of dina demalchusa dina. Indeed, he discovered a dispute among great authorities of the late twentieth century whether dina demalchusa dina applies to the laws of bankruptcy. In a responsum, Rav Moshe Feinstein rules

that dina demalchusa dina applies only to matters in which the government takes an interest because they may affect the stability of the country. For example, if the country does not have consistent markets, this could create problems that the government wants to avoid. Therefore, the government has a halachic right under dina demalchusa dina to insist that its laws insuring stable markets are followed.

Rav Moshe concludes that the laws of bankruptcy are within the parameters of dina demalchusa dina, since the government has a right to insist that there be a consistent rule of law applied throughout the country regarding how bad debts are discharged.

In the case brought before Rav Moshe, a company had gone bankrupt, and the directors had paid one of its creditors for his outstanding debt in violation of the bankruptcy rulings. The question was whether the individual was required to return the money that he had been paid because of dina demalchusa dina. Rav Moshe ruled that if the company had already filed for bankruptcy when this money was paid, then the creditor is halachically required to return the money. This is because dina demalchusa dina establishes the regulations how one may pay once one has filed for bankruptcy.

We find responsa from two prominent European authorities, Rav Yitzchak Weiss (Shu’t Minchas Yitzchak 3:134), then the av beis din of Manchester (and later the Gaon Av Beis Din of the Eidah HaChareidis in Yerushalayim), and from Rav Yaakov Breisch of Zurich, Switzerland (Shu’t Chelkas Yaakov 3:160). (It is interesting to note that these two great poskim were mechutanim.) From the limited description of the cases that each responsum contains, it seems that they were asked concerning the same situation:

Reuven advanced Shimon a personal loan, and Shimon subsequently declared bankruptcy. As required by law, Shimon had notified all his creditors, Reuven included, that he had filed for bankruptcy protection and that Reuven had the right to protest the bankruptcy arrangements. Reuven did not protest the bankruptcy proceedings, which ultimately ruled that Shimon was required to pay only thirty cents per dollar owed to his creditors.

Subsequently, Reuven sued Shimon in beis din for the entire loan. Shimon contended that he is not required to pay Reuven any more than the thirty cents to the dollar that the bankruptcy court ruled that he was required to pay. Reuven, the creditor, claimed that he had never forgiven any part of the loan. He claimed that he did not protest the bankruptcy proceedings for several reasons, among them that he was unaware that a personal loan which was not meant for profit is included in bankruptcy proceedings.

The rav who was asked the shaylah referred it to these well-known poskim. They both contend that dina demalchusa dina does not apply to bankruptcy procedures. In their opinion, dina demalchusa dina never supplants an area of halachah where the Torah provides its own guidelines.

They do agree that if there was evidence that Reuven had accepted the court’s ruling, he would no longer be entitled to full payment, because he had been mocheil, forgiven, the balance of the loan. Once someone is mocheil a loan or part of a loan, he cannot afterwards claim it. However, they contend that in the situation at hand, there is no evidence that Reuven was ever mocheil the balance of the loan.

It would seem from Rav Moshe Feinstein’s responsum that he would have ruled differently and contended that once the court declared Shimon bankrupt, Reuven would have been obligated to honor the court’s decision because of dina demalchusa dina.

At this point, Gomel sat down to discuss with Rav Chacham whether his own debtor can claim protection from the balance of his loan because he has declared bankruptcy. According to the Chelkas Yaakov, the Minchas Yitzchak, and other authorities, the debtor has no basis for claiming bankruptcy protection. According to Rav Moshe Feinstein, one would have to check with an attorney whether the debtor’s bankruptcy protects him legally from Gomel’s loan even though Gomel was not informed of the bankruptcy proceedings. Assuming that the bankruptcy proceedings can, indeed, protect the debtor, it would seem that, according to Rav Moshe and some other authorities, the debtor has grounds to his argument.

Conclusion

Lending money is a valuable mitzvah. When someone fulfills the mitzvah of lending money to a fellow Jew, he is not providing a gift, but a loan that he has a right to expect will be repaid. As the Tanna, Rabbi Shimon, notes in the second chapter of Pirkei Avos, “the evil path from which a person should distance himself” can be explained easily in the words of Dovid Hamelech: The wicked borrow and do not repay; whereas the righteous is gracious in his giving. Someone who borrows must always have a plan how he intends to return the funds.

HaRav Abba Berman zt”l, An Appreciation

This Shabbos is the ninth yahrzeit of Rav Abba Berman, zt”l. I decided to send the hesped that I wrote shortly after his passing.

Rav Abba Berman once explained that superficial learning is like watching the hands of a clock move around its dial. In-depth learning, which he felt is the goal of all learning, is like “opening the back of the watch to see what makes it tick.”

What did he mean by this mashal?

The goal of learning is to understand the ideas and concepts of Torah – in its totality, what its “parts” are, and how the parts integrate to produce the result. Rav Abba was vexed by those who gave over ideas without understanding the concepts thoroughly. He devoted himself and his shiurim to develop a deeper and broader understanding of Torah. His yeshiva and the seforim he wrote were called Iyun HaTalmud because that is exactly what his goal was; one must strive to understand why the concepts and ideas of Torah are what they are. Even a gezeiras hakasuv, a Torah decree, must be understood, according to Rav Abba, – what exactly is the concept that the Torah is introducing to us, how does it work, and what are its ramifications.

In his own words, his shiurim tried to define the mechanism of how Torah concepts work, to understand what “makes the din tick.”

In the words of a close talmid, “Two people look at and appreciate a beautiful flower. Although both of them appreciate the beauty, one of them may be able to appreciate the subtleties, intricacies and complexities of the flower, compare it to other species and varieties, and savor the subtleties of its fragrance. So, too, Rav Abba taught how to be a Torah connoisseur – how to appreciate the depth and breadth of Torah, how to understand its beauty and ramifications in greater and greater ways.”

With this introduction, we can begin to appreciate the greatness of HaRav Abba Berman zt”l.

AS A YOUTH

He was born on Tu B’Shvat 5679 (January 16, 1919) in Lodz where his father, Rav Shaul Yosef Berman, a talmid of the Chofetz Chaim, was Rosh Yeshiva of Yeshivas Toras Chesed. Rav Abba’s rebbe was his father, whose influence lasted for the rest of his life.

Without any question, Rav Abba was a child prodigy, yet I hesitate to tell the astounding story of his meeting as a six-year-old with the Chofetz Chaim. The Chofetz Chaim tested the young child on all of Perek HaMafkid in Gemara Bava Metzia and then gave him a bracha and some advice to his father. However, in a way it is a disservice to relate this story because one might assume that Rav Abba was too brilliant a genius for us to learn from. This was the exactly the opposite of what Rav Abba desired in life, which was to teach people to toil attentively and honestly over a sugya of Gemara with common sense, constantly delving into a deeper understanding of the subject.

At the age of 14 he left Lodz to attend the Mir Yeshiva in Poland. He developed a close relationship with the mashgiach, Rav Yerucham Levovitz zt”l, possibly the greatest mussar personality of his generation. Although Rav Yerucham passed away when Rav Abba was only 17, he always considered himself a talmid of Rav Yerucham, whose worldview he absorbed.

SHANGHAI AND CHIDDUSHEI RABBEINU CHAIM

During the war years, Rav Abba was part of the Mir Yeshiva exile in Shanghai. Although he grew tremendously in learning during his years in Shanghai, those years took a tremendous toll on his health, which affected him the rest of his life. He had prodigious achievements in learning and teaching Torah despite the fact that he always suffered from medical problems that needed constant attention.

In Shanghai, he began developing his distinctive derech halimud (approach to learning). There he became absorbed with the sefer Chiddushei Rabbeinu Chaim HaLevi of Rav Chaim Brisker. Rav Abba drew upon and developed concepts from Rav Chaim and incorporated them into his understanding of the Gemara and Rishonim.

It was known in Shanghai that if you did not understand something in the works of Rav Chaim Brisker, the address to seek was Rav Abba Berman, then known as “Abba Lodzer,” after his birthplace, as was common in that era. In Shanghai he developed into one of the Gedolei Yisroel.

Due to his own profundity, his diligence, and his application, Rav Abba often recognized deeper concepts in the writings of Rav Chaim than others did. He considered himself a disciple of Rav Chaim, because studying Rav Chaim’s sefer deepened his own understanding of the concepts of Shas. One might say that the entire publication of the Chiddushei Rabbeinu Chaim was worthwhile just to make it available to Rav Abba Berman.

ROSH YESHIVA

After the war, Rav Abba joined the Mirrer Yeshiva in Brooklyn, married, and gave chaburahs and said shiurim there. After giving shiurim in Kaminetz and other yeshivos, he then opened his own yeshiva, Iyun HaTalmud, first in Brooklyn, then in Bnei Brak, Far Rockaway, and later in Monsey. In Elul 5739/1979 he moved the Yeshiva back to Eretz Yisroel, to Yerushalayim. Later he moved it to Kiryat Sefer. Although he was offered positions in many yeshivos over the years, he preferred (until his last years) having his own yeshiva where he could alone decide what, how, and where to teach.

He once told a talmid that he had considered naming the Yeshiva “Yeshivas VeHa’er Eineinu B’Sorasecha,” “Open our eyes in Your Torah,” which describes our goal to appreciate Hashem’s Torah in deeper and deeper levels. However, because the name was a bit long, he decided instead to name the Yeshiva “Iyun HaTalmud,” which emphasizes the method — appreciating Hashem’s Torah by utilizing our own efforts to delve into it deeper and deeper. His view was that man accomplishes his greatest purpose on Earth and fulfills ratzon Hashem by learning the concepts of Shas as deeply as he can.

A seasoned talmid chacham who came to study under Rav Abba found that it took him several years until he could understand Rav Abba’s profound shiur. However, during the same period of time he would regularly attend the chazarah shiur, which reviewed Rav Abba’s shiur in a simplified way, but for years he could not see what the chazarah shiur had to do with the shiur he had heard earlier in the day from the Rosh Yeshiva. After many years of hearing Rav Abba’s shiur, and as the depth of his own learning developed immeasurably, he began to understand Rav Abba’s shiur. After several more years, this talmid chacham began to give the chazarah shiur, although he relates that it took him approximately six hours to review Rav Abba’s 1¼ hour-long shiur until he felt ready to repeat the shiur! Yet he felt the investment of most of his day extremely worthwhile because that was how he achieved proper understanding of Torah.

A talmid once spent the month of Elul studying in Rav Abba’s yeshiva, but he missed the bekiyus (breadth of Torah knowledge) style of his previous yeshiva. He went to discuss the matter with Rav Nochum Pertzovitz, Rosh Yeshiva of the Mir, who advised him to remain learning in Rav Abba’s yeshiva, saying “What could be greater bekiyus than mastering the basic understanding of Bava Kamma.”

(One should not get the impression that Rav Abba was opposed to bekiyus. Quite the contrary, he himself reviewed Shas and Rishonim until most of it was in front of his eyes. However, Rav Abba viewed bekiyus as the foundation with which to understand Amkus HaTorah, the deep true understanding of Torah, which was his passion.)

To Rav Abba, all of Torah is one contiguous whole. It was anathema to develop an idea that was inconsistent with a principle elsewhere. Quite the contrary, a concept that elucidates one part of Shas might clarify a seemingly unrelated subject. In so doing, he developed his own nomenclature and his own system of understanding.

Rav Abba was a master of saying things punctiliously and was extremely careful in his choice of words when he gave a shiur. He only included a line of logic in a shiur if he was convinced that it was completely accurate. He once remarked to a talmid that he would think through a svara 30 or 40 times before saying it over in a shiur.

Rav Abba used the late commentaries and the published shiurim of the Roshei Yeshiva judiciously. Sometimes he began with their concepts and then developed the idea into a brilliant analysis of the concepts. At other times, he would spare no words in pointing out that he felt the true understanding of the sugya lay elsewhere.

GOALS OF LEARNING

It was not Rav Abba’s goal to have talmidim memorize his shiur; he wanted them to absorb his approach at analyzing the Gemara to its deepest concept.

In the week after his passing, two talmidim were discussing a shiur that one had delivered in the Yeshiva where he is currently a Rav. The Rav mentioned that he had given a shiur based substantially on a shiur printed in one of Rav Abba’s seforim, then added, “Assuming I understood the Rosh Yeshiva correctly.” The other talmid replied, “Either you told over Rav Abba’s Torah, or you explained what you thought is the correct understanding of the sugya. The latter is what Rav Abba wanted even more, and is a greater achievement of his goal.”

Rav Abba did not tolerate lazy thinking. One must fully understand what one says. A talmid chacham interested in joining Kollel Iyun HaTalmud told Rav Abba a shiur that he had delivered in his previous kollel. Rav Abba heard his shiur and then responded, “If you would learn by me, you would never talk like this.” The kollel scholar was baffled by the response, because the shiur had been well received in his previous kollel. He requested to share with Rav Abba a different shiur he had delivered and received the same response.

Ultimately, Rav Abba accepted this talmid chacham into his kollel. Years later, when he told me the story, he explained, “I thought that I understood what I was saying. But when I began to study under Rav Abba, I realized that this man REALLY knows what he’s talking about – and that I had been totally superficial in my understanding without realizing it. I may not understand him, but I know that he knows what he is talking about. After years of studying under Rav Abba I realized that my whole thought process had changed. Rav Abba taught me how to truly understand what I was learning.”

His talmidim usually spent many years studying in his yeshiva. His yeshiva was always small, but it included a very impressive group of top talmidim, who today are accomplished roshei yeshiva, roshei kollel, magiddei shiur, and dayanim.

HIS IMMERSION IN LEARNING

To say that Rav Abba was a tremendous masmid is not sufficient. It is more appropriate to say that he was totally immersed in learning and that he constantly applied himself to delve deeper and deeper into understanding Shas. He thought in learning constantly — his lips were constantly moving. Presumably, he was constantly thinking of a deeper way to understand the sugya that he was learning at the moment.

MUSSAR

Rav Abba was a true talmid of the mashgiach, Rav Yerucham zt”l, and delved into hashkafah subjects with the same enthusiasm and analysis that he studied halacha and lomdus. He taught how to be deep in one’s hashkafah and how to intensify one’s avodas Hashem. For many years he gave chaburos on emunah, hashkafah, and philosophical subjects on Shabbos afternoon. In his younger years, he also gave mussar schmoozen in the Yeshiva. His schmoozen were not fire and brimstone, but shiurim on deep machshavah. He would devote a series of schmoozen to developing one’s thoughts on a specific topic.

He was also readily available and accessible to his talmidim to discuss any topic at all. Although his own world was totally devoted to understanding Shas better, he was a big pikeach in understanding people.

HIS SEFORIM

Five volumes of Rav Abba’s shiurim were published in his lifetime, under the titles Shiurei Moreinu HaGaon Rabbi Abba Berman or Shiurei Iyun HaTalmud. Technically the seforim were authored by his talmidim based on notes and tapes of his weekly shiur klali, but I was told that Rav Abba reviewed the shiurim before publication. This does not include the “blatt shiurim” that he gave, nor is it more than a fraction of the shiurei klali that he delivered, and certainly does not include notes on other parts of Shas. Hopefully, we will be zocheh to see the publication of many more volumes of his shiurim.

One of the five volumes is unique. Although all of his years as Rosh Yeshiva he gave shiurim only on Nashim and Nezikin, his personal favorite seder was Kodashim. At one time, a chaburah of advanced talmidim in his kollel learned Kodashim, and then he gave chaburos to them on Mesechta Zevachim. One volume of his published chiddushim is taken from these shiurim.

HIS FAMILY

Rav Abba and his Rebbitzen, tichyeh, created a European-type home in the United States at a time when the prevailing environment, even among frum Torah Jews, was highly permissive. His daughters were taught to stand up for him as is correct according to halacha. They were taught to plan their schedules so as not to disturb his learning. They absorbed none of the liberal attitude towards Yiddishkeit of the “frum” world around them — and this is manifest in their own highly notable achievements.

Rav Abba had six daughters. In a humorous moment, Rav Abba once quipped to a talmid, “You get to choose your sons-in-law but not your sons.” His six sons-in-law are all tremendous talmidei chachomim, marbitzei Torah, magiddei shiur and roshei yeshiva in yeshivos in America and Eretz Yisroel. His daughters are all n’shei chayil, well-recognized and respected as top mechanchos.

Mizmor Lesodah and Pesach

Question #1: Mizmor Lesodah and Pesach

“I recently assumed a position teaching in a small town day school. Before Pesach, I mentioned that we do not recite Mizmor Lesodah on Erev and Chol Hamoed Pesach. One of the students afterwards told me that this is not his family minhag, but only Ashkenazi practice. Is he correct?”

Question #2: Why at the Very Beginning?

“I am curious why Mizmor Lesodah is located at the beginning of pesukei dezimra. Isn’t Ashrei and the five chapters of Tehillim that follow it the essence of pesukei dezimra?”

Question #3: Standing Room Only

“My father always told me that one should stand when saying Mizmor Lesodah, but I cannot find this halachah in the Mishnah Berurah. Where is it located?”

Answer

There are two different chapters of Tehillim, #100 and #107, that devote themselves to the thanksgiving acknowledgement of someone who has survived a major physical challenge. In Psalm 107, Dovid Hamelech describes four different types of treacherous predicaments — traveling through the desert, traveling overseas, illness, and imprisonment — in which a person would pray to Hashem for salvation. When the person survives the travails and thanks Hashem, the passage reflects this thanks: Yodu lashem chasdo venifle’osav livnei adam, “they acknowledge thanks to Hashem for His kindness and His wondrous deeds for mankind.”

The Gemara cites this Psalm as the source for many of the laws of birchas hagomeil, the brocha we recite when surviving these calamities. To quote the Gemara: Four people need to acknowledge thanks to Hashem.

Mizmor Lesodah

Whereas Chapter 107 of Tehillim describes the background behind korban todah and birchas hagomeil, the 100th chapter of Tehillim, Mizmor Lesodah, represents the actual praise that the saved person recites. Although only five verses long, this psalm, one of the eleven written by Moshe Rabbeinu (see Rashi ad locum), captivates the emotion of a person who has just survived a major ordeal. The first verse expresses the need for everyone on Earth to recognize Hashem, certainly conveying the emotions of someone very recently saved from a major tribulation. The second verse shares the same passion, since it calls upon everyone to serve Hashem in gladness and to appear before Him in jubilation. The third sentence continues this idea. In it, the thankful person who has been saved calls on everyone to recognize that Hashem is the personal G-d of every individual, and that we are His people and the sheep of his pasture. He then calls on all to enter into Hashem’s gates and His courts, so that we can thank and bless Him. We should note that the Gates of the Beis Hamikdash were meant for all of mankind, not only the Jewish People, as specifically included in Shlomoh Hamelech’s prayer while inaugurating it (Melachim I 8:41-43).

The closing sentence is also very significant: “For Hashem is good, His kindness is forever, and our trust should be placed in Him in every future generation.” (We should note that the word olam in Tanach means “forever” and never means “world,” which is a meaning given to this word by Chazal. The most common Tanach word for “world” is teiveil; see, for example, Tehillim 19:5; 33:8; and 90:2, all of which are recited during the pesukei dezimra of Shabbos, and 96:10, 13; 97:4; 98:7, which are part of kabbalas Shabbos.) The celebrant calls upon those he has assembled to spread the message that Hashem is the only Source of all good, and that we should recognize this at all times, not only in the extraordinary situations where we see the manifestation of His presence!

We can now understand better why the Mizmor Lesodah chapter of Tehillim is structured as it is. It provides the beneficiary of Hashem’s miracle with a drosha to present at the seudas hodaah that he makes with all the bread and meat of the korban todah — complete with encouragement to others to internalize our thanks to Hashem.

Clearly, then, this psalm was meant to be recited by the thankful person prior to offering his korban, and this is his invitation to others to join him as he thanks Hashem. The Avudraham notes that Hashem’s name appears four times in the psalm, corresponding to the four people who need to thank Him for their salvation.

Mizmor Lesodah and Our Daily Davening

In order to make sure that this thanks to Hashem takes place daily, the chapter of Mizmor Lesodah was introduced into our daily pesukei dezimra. We should remember that miracles happen to us daily, even when we do not realize it (quoted in name of Sefer Nehora; see also Beis Yosef, Orach Chayim 281). Although Mizmor Lesodah was not part of the original structure of the daily prayers established by the Anshei Keneses Hagedolah, it apparently was already common practice in ancient times, long before the time of the Rishonim, to recite it at or near the beginning of pesukei dezimra. The importance of reciting this psalm should not be underestimated. The Shulchan Aruch (Orach Chayim 51:9) states: One should recite Mizmor Lesodah with song, since eventually all songs will cease except for Mizmor Lesodah. This statement of Chazal is explained by Rav Hirsch (Commentary to Psalm 100) in the following manner: One day in the future, everything on Earth will be so ideal that there will be no reason to supplicate Hashem for changes. Even then, prayers of gratitude and thanksgiving will still be appropriate.

Why Start at the Very Beginning?

In nusach and minhag Sfard, Mizmor Lesodah is the first psalm recited in pesukei dezimra, and in all versions it is recited before the essential parts of pesukei dezimra, which are Ashrei and the five chapters of Tehillim that follow it. Why do we recite Mizmor Lesodah towards the beginning of pesukei dezimra?

The Avudraham explains that Mizmor Lesodah is in its place because it corresponds to the second statement of Creation – yehi or, “Let there be Light,” since all of mankind needs to thank Hashem for providing light and for our existence.

One could perhaps suggest another reason. Since Mizmor Lesodah was written by Moshe Rabbeinu, it predates the other parts of Tehillim we say in our daily pesukei dezimra, and therefore is recited first.

At this point, we can answer one of the questions raised above. “I am curious why Mizmor Lesodah is located at the beginning of pesukei dezimra. Isn’t Ashrei and the five chapters of Tehillim that follow it the essence of pesukei dezimra?”

Indeed, the questioner is correct that the original and most vital part of pesukei dezimra is Ashrei and the five psalms that follow it. Nevertheless, since Mizmor Lesodah serves such an important function, and it also corresponds to the second of the ten statements of Creation, it was placed earlier in our davening.

“No Thanks”

We find a dispute among early authorities whether one should recite Mizmor Lesodah on Shabbos (Shibbolei Haleket, quoted by Beis Yosef, Orach Chayim 281). Why should this be?

Since the korban todah is a voluntary offering, it cannot be offered on Shabbos. The Tur mentions that established custom is to omit Mizmor Lesodah on Shabbos and Yom Tov, out of concern that when the Beis Hamikdash is rebuilt, someone may mistakenly offer the korban todah on these days. On Shabbos, of course, it is prohibited to offer any korban other than the required daily tamid and the special Shabbos korbanos, whereas on Yom Tov one may offer only voluntary korbanos that are because of the Yom Tov (Beitzah 19b).

The Tur does not agree that this is a valid reason to omit reciting Mizmor Lesodah on these days, contending that we need not be concerned that people will mistakenly offer a korban todah on Shabbos or Yom Tov (Orach Chayim, Chapter 51 and Chapter 281). Others explain that we recite Mizmor Lesodah to remind us of the korban todah, and since it was not offered on these days, there is no point in reciting it (see Pri Megadim, Eishel Avraham 51:11). Perhaps this is done as an aspect of uneshalma parim sefaseinu (Hoshea 14:3), “may our lips replace the bulls (of offerings),” which is interpreted to mean that when we have no Beis Hamikdash, we recite passages that commemorate those offerings. For this reason, the custom developed among Ashkenazim to omit Mizmor Lesodah on days that the offering could not be brought in the Beis Hamikdash.

Mizmor Lesodah on Rosh Hashanah and Yom Kippur

There are places where the custom was to recite Mizmor Lesodah on Rosh Hashanah and Yom Kippur, because of the words hari’u lashem kol ha’aretz, which calls on the entire Earth to sing praise to Hashem (Magen Avraham 51:10, quoting Kenesses Hagadol). Kaf Hachayim (51:50) notes that the most common custom among Sefardim was to recite Mizmor Lesodah on Rosh Hashanah, but not on Yom Kippur, although some places omitted it on Rosh Hashanah, similar to the Ashkenazic practice. Pri Megadim, an Ashkenazi, mentions that he was unaware of any community that did recite Mizmor Lesodah on Rosh Hashanah.

Mizmor Lesodah on Erev Yom Kippur

Ashkenazic custom is to omit Mizmor Lesodah on Erev Yom Kippur, and for a very interesting reason: One may not offer a korban in a way that curtails the amount of time that the Torah permitted one to consume the parts of the korban that are eaten (Zevachim 75b). Were a todah offered on Erev Yom Kippur, one would be permitted to eat it and its bread only until sunset, whereas the time limit for a todah is usually until midnight. Thus, one cannot offer the korban todah on Erev Yom Kippur, and the custom is to omit reciting Mizmor Lesodah.

Mizmor Lesodah on Chol Hamoed Pesach

For the same reason that Mizmor Lesodah is omitted on Shabbos, Ashkenazim omit reciting it on Chol Hamoed Pesach. Since the korban todah contained chometz, it could not be offered on Pesach.

Mizmor Lesodah on Erev Pesach

For the same reason that Ashkenazim omit recital of Mizmor Lesodah on Erev Yom Kippur, they omit it on Erev Pesach. The korban todah and its breads can usually be eaten until the midnight after the day it was offered. However, were one to offer a korban todah early on Erev Pesach, one would be restricted to eating its chometz for only a few hours. Since one may not offer a korban whose time limit is curtailed, one may not offer korban todah on Erev Pesach, and, following Ashkenazic practice, Mizmor Lesodah is omitted then, also. The common custom among Sefardim is to recite Mizmor Lesodah on Erev Yom Kippur, Erev Pesach and Chol Hamoed Pesach (Pri Chodosh 429:2; Kaf Hachayim 51:51-52).

With this background, I can now begin to answer the first question raised above.

“I recently assumed a position teaching in a small town day school. Before Pesach, I mentioned that we do not recite Mizmor Lesodah on Erev and Chol Hamoed Pesach. One of the students afterwards told me that this is not his family minhag, but only Ashkenazi practice. Is he correct?”

Indeed, in this instance, the student is correct. Hopefully, the rebbe was not that badly embarrassed.

Mizmor Lesodah on Tisha B’av

Apparently, there were places where the custom was to omit reciting Mizmor Lesodah on Tisha B’av and on Erev Tisha B’av (Magen Avraham 51:11, quoting Hagahos Maimoniyos). Shu”t Maharshal (#64) writes that this is a gross error, because when the Beis Hamikdash stood and when it will be rebuilt, Tisha B’av was and will not be a fast day, and there is no reason why one could not offer a korban todah then.

Standing Only

The Rambam (Hilchos Tefillah, 10:8) requires that a person stand up when he recites birchas hagomeil. The Bach (Orach Chayim 219) feels that there is an allusion to this practice in Tehillim 107, whereas the Elyah Rabbah (219:3) presents a different reason why one should stand, explaining that birchas hagomeil is a form of Hallel, which must be recited standing. Others explain that since birchas hagomeil substitutes for the korban todah, it bears similarity to shmoneh esrei, which is similarly bimkom korban and is recited standing (Nahar Shalom 219:1). According to all of these opinions, we can understand why a custom developed to stand when reciting Mizmor Lesodah (see Kitzur Shulchan Aruch, 14:4, and sources quoted by Kaf Hachayim 51:48). However, the Kaf Hachayim quotes the Arizal that one should deliberately sit while reciting Mizmor Lesodah, and he (the Kaf Hachayim) concludes that this is the preferred practice. The Mishnah Berurah does not mention anything about either practice.

We can now answer the last question raised above: “My father always told me that one should stand when saying Mizmor Lesodah, but I cannot find this halachah in the Mishnah Berurah. Where is it located?”

The answer is that although there are some halachic authorities who record this custom, it is not universally accepted. As a point in fact, the Mishnah Berurah does not discuss this particular question.

Conclusion

Why is korban todah the only private offering that includes chometz and the only offering that includes both chometz and matzoh? Rav Hirsch (Commentary to Vayikra 7:14) explains that the three types of matzoh represent different degrees of prosperity, but using matzoh conveys the idea that it is obvious that everything I have is dependent on Hashem. Chometz, however, implies that a person is living more independently – his need for Hashem’s regular involvement is not nearly as obvious.

The person who has survived one of the four ordeals requiring a korban todah now recognizes that only the outside world views him as independent. He himself understands that everything he has is dependent on Hashem. Similarly, on Pesach, we all need to acknowledge our salvation and creation as a Nation by Hashem.

Hallel in Shul on Seder Night

Question #1: When I visit Eretz Yisroel, I notice that even Nusach Ashkenaz shullen recite Hallel on the first night of Pesach. Should I be reciting Hallel with them when my family custom is not to?

Question #2: Should a woman whose husband recites Hallel in shul on Seder night recite Hallel with a bracha before the Seder?

Question #3: When I was in Eretz Yisroel for Pesach, I davened maariv the second day of Pesach with a chutz la’aretz Nusach Ashkenaz minyan, but none of us knew whether to recite Hallel. What should we have done?

Hallel is our unique praise to Hashem that is reserved for special occasions. Whenever the Jews survived a crisis, they responded by singing Hallel. Thus we sang Hallel after crossing the Yam Suf and again after Yehoshua defeated the allied kings of Canaan. Devorah and Barak sang Hallel when their small force defeated the mighty army of Sisra; the Jews sang this praise when the huge army of Sancheiriv fled from Yerushalayim and when Hashem saved them from Haman’s evil decrees. Chananyah, Mishael, and Azaryah sang Hallel after surviving Nevuchadnetzar’s fiery furnace. After each of these events, Jews recited Hallel to thank Hashem for their miraculous salvation (Pesachim 117a, as explained by Rashi; cf. Rashbam ad loc.).

Before addressing the above questions, let us clarify the five different ways we recite Hallel during Pesach.

THE FIVE TYPES OF PESACH HALLEL

I. Thanking Hashem while performing mitzvos

In the Beis HaMikdash, the Jews sang Hallel while offering the korban pesach on Erev Pesach (Mishnah Pesachim 64a, 95a; Gemara 117a) and then again during the festive meal when they ate it that night. To quote the immortal words of the Gemara, “Could it possibly be that the Jews would offer their korban pesach without reciting Hallel?”

The Jews sang Hallel at the Seder with such fervor that a new expression was coined, “The kezayis of Pesach and the Hallel split the roof.” It is unlikely that people needed to hire roofers to repair the damage after Pesach; this statement reflects the zeal of the experience. As Chazal teach, we should sing every Hallel with ecstatic feeling and melody (Mesechta Sofrim 20:9).

The Hallel recited while offering and consuming the korban pesach is inspired by the fervor of the event. Similarly, some have the custom of reciting Hallel while baking matzos on Erev Pesach to remember the arousing passion of singing Hallel while offering korban pesach. Unfortunately, as we have no korban pesach with which to ignite this enthusiasm, we substitute the experience of baking the matzos.

II. Part of the evening davening

In the times of Chazal (Mesechta Sofrim 20:9; Yerushalmi Berachos 1:5), the Jews recited Hallel immediately after maariv in shul on Seder night, a practice continued by Nusach Sefard and in Eretz Yisroel. I will soon discuss the different reasons for this practice.

III. During the Seder

We sing Hallel as part of the Seder. This Hallel is different from the regular Hallel in the following ways:

We divide this Hallel into two parts, separating the two parts with the festive Yom Tov meal. We sing the first part as the conclusion of the Maggid part of the Seder, as we describe the ecstasy of the Exodus while holding a cup of wine in celebration. The bracha, Asher Ga’alanu, is recited after these preliminary paragraphs of the Hallel, immediately followed by a bracha upon the second cup of wine. (Sefardim do not recite a bracha on this cup of wine.)

Following the birchas hamazon after the meal, which concludes with the third cup of wine, we pour a fourth cup of wine and hold it while reciting the rest of Hallel. Upon completing Hallel, we recite Chapter 136 of Tehillim, Nishmas, a bracha to conclude the Hallel (there are different opinions which bracha to recite), a bracha upon the wine (Sefardim do not recite a bracha on this cup of wine either), and then drink the cup of wine as the last of the four kosos.

Another difference between Hallel on Seder night and Hallel during the year is that we sit for Hallel at the Seder. Halacha requires that one give testimony standing, and when we recite Hallel we testify that Hashem performed wonders for us. Furthermore, the pasuk in Hallel declares, “Sing praise, servants of Hashem who are standing” (Tehillim 135:1-2), implying that this is the appropriate way to praise. However, at the Seder we sit because the Hallel is part of the meal and is recited while holding a cup of wine, which is not conducive to standing; furthermore, sitting demonstrates that we are free from bondage (Shibbolei HaLeket #173).

Reciting Hallel during the Seder commemorates singing Hallel while eating the korban pesach (Mishnah Pesachim 95a). Unfortunately, we have no korban pesach, so we must substitute the Yom Tov meal and the matzos.

IV. After Shacharis on the first day(s) of Pesach

We recite the full Hallel immediately following shmoneh esrei on the first day(s) of Pesach to fulfill the mitzvah of reciting Hallel on days that are either Yom Tov or commemorate a miracle. These days include Chanukah, Sukkos, Shavuos, and the first day(s) of Pesach (Arachin 10a). This Hallel can only be recited during daytime hours, which the Gemara (Megillah 20b) derives from the verse, from the rising of the sun until it sets, Hashem’s name shall be praised (Tehillim 113:3).

V. After Shacharis on the other days of Pesach

We recite Hallel with parts deleted (colloquially referred to as half Hallel) immediately following shmoneh esrei on the other days of Pesach. This reading is not part of the original takanah to recite Hallel on Yomim Tovim, but is a custom introduced later, similar to the recitation of Hallel on Rosh Chodesh. Thus the poskim dispute whether one recites a bracha prior to reciting this Hallel. Rambam (Hilchos Chanukah 3:7) rules that one does not recite a bracha, and this is the prevalent custom among the Sefardim and Edot HaMizrach in Eretz Yisrael (Shulchan Aruch, Orach Chayim 422:2). Tosafos (Taanis 28b), however, rules that one may recite a bracha on Hallel on Rosh Chodesh and the last days of Pesach, and this is the universal practice among Ashkenazim.

Why do we recite the full Hallel every day of Sukkos, bur only on the first day of Pesach? The Gemara gives a surprising answer to this question. We recite full Hallel every day of Sukkos since each has different korban requirements in the Beis HaMikdash; on Pesach, we do not recite full Hallel every day because the same korban was offered every day. The fact that a day is Yom Tov is insufficient reason to recite Hallel; there must also be something original about that particular day’s celebration. Thus, although the Seventh (and Eighth) day of Pesach is Yom Tov, full Hallel is omitted.

The Midrash presents a different explanation why full Hallel is not recited on Pesach — we should not recite it at a time that commemorates human suffering, even of the evil, since this was the day that the Egyptians drowned in the Yam Suf (quoted by Shibbolei HaLeket #174).

Now that we have a basic background to the five types of Hallel, we can now discuss the Hallel we recite at the Seder. The Gemara’s list of dates that we recite Hallel only mentions reciting Hallel in the daytime. However, other sources in Chazal (Mesechta Sofrim 20:9; Tosefta Sukkah 3:2; Yerushalmi Sukkah 4:5) include Hallel of Seder night when mentioning the different days when we are required to recite Hallel. This leads us to an obvious question:

DO WE RECITE A BRACHA ON HALLEL AT THE SEDER?

Since we recite Hallel at the Seder, should we not introduce it with a bracha? Although the universal practice today is to not recite a bracha before this Hallel, whether one recites a bracha on this Hallel is actually disputed. Here are three opinions:

1. One should recite a bracha twice; once before reciting the first part of Hallel before the meal and once before resuming Hallel after bensching (Tur Orach Chayim 473, quoting Ritzba and several others).

2. One should recite a bracha before beginning the first part of Hallel, notwithstanding the interruption in the middle of Hallel (Ran; Maharal).

3. One should not recite any bracha on Hallel at the Seder (Shu’t Ri MiGash #44; Rama; Bach).

Of course, this last opinion presents us with an interesting difficulty: If Chazal instituted reciting Hallel on Seder night, why does it not require a bracha beforehand?

I found three very different approaches to answer this question:

A. Some contend that, despite inferences to the contrary, Hallel on Seder night is not a mitzvah but only expresses our rejoicing (Shu’t Ri MiGash #44).

B. Alternatively, although there is a mitzvah Seder night to praise Hashem, this praise could be spontaneous and unstructured which would not technically require reciting the structured Hallel. Since no specific song or praise is required, Chazal did not require a bracha before singing Hallel (see Rav Hai Gaon’s opinion, as quoted by Ran, Pesachim Chapter 10).

C. Although Hallel Seder night should require a bracha, we cannot do so because we interrupt the recital of the Hallel with the meal (Tur Orach Chayim 473). This approach leads us to our next discussion:

HALLEL SEDER NIGHT IN SHUL

In several places Chazal mention reciting Hallel in shul on the first night of Pesach. Why recite Hallel in shul, if we are going to recite it anyway as part of the Seder?

The Rishonim present us with several approaches to explain this practice.

A. In Chazal’s times, there were no siddurim and therefore the common people davened together with the chazzan or by listening to the chazzan’s prayer. (This is why the chazzan is called a shaliach tzibur, the emissary of the community, since he indeed prayed on behalf of many individuals.) On the days that we are required to recite Hallel, these people listened to the chazzan’s Hallel and responded appropriately and thereby fulfilled their mitzvah. However, how could they recite Hallel Seder night? They did so by reciting Hallel together with the chazzan in shul before coming home (see Gra, Orach Chayim 487).

B. A different approach contends that the community recited Hallel in shul the first night of Pesach in order to fulfill the mitzvah with a large group. Although one may recite Hallel by oneself, reciting it communally is a greater observance of the mitzvah.

Neither of these two approaches necessarily assumes that Hallel on Seder night requires a bracha. Indeed, the Chazon Ish recited Hallel in shul Seder night without reciting a bracha beforehand. There are congregations in Bnei Braq that follow this approach.

C. A third approach contends that the primary reason for reciting Hallel in shul is to recite a bracha beforehand. These poskim contend that Hallel at the Seder would require a bracha if it was not interrupted by the meal; to resolve this, Hallel is recited twice, once in shul with a bracha without interruption, and then a second time during the Seder. According to this opinion, Hallel Seder night fulfills two different purposes:

(1) We sing Hallel to Hashem as we do on all Yomim Tovim because of his miracles; on Seder night we sing Hallel at night because that is when we were redeemed.

(2) We praise Hashem while performing the mitzvos of Seder night – haggadah, matzah etc.

Although one could fulfill both of these mitzvos by reciting Hallel one time during the Seder, one would miss making a bracha. Therefore, Hallel is recited during davening so that it can be introduced with a bracha, and is sung again during the Seder so that it surrounds the mitzvos of the night. This is the prevalent practice of Sefardim, Chassidim, and the most common approach followed in Eretz Yisroel today (see Gra, Orach Chayim 487).

At this point, we can begin to discuss the questions we raised above:

Question #1: When I visit Eretz Yisroel, I notice that even the Nusach Ashkenaz shullen recite Hallel on the first night of Pesach. Should I be reciting Hallel with them when my family custom it not to?

Your custom follows the poskim that reciting Hallel Seder night does not require a bracha. You should preferably follow your own practice and not recite a bracha on the Hallel, but there is no reason why you cannot recite Hallel with them. Since you do not lose anything, have in mind to fulfill the bracha by listening to the chazzan’s bracha.

However, there is another halachic issue, which is that one should not do things in a way that could cause strife. Rav Moshe Feinstein (Igros Moshe, Orach Chayim 2:94) discusses a situation of someone in chutz la’aretz who does not recite Hallel in shul on Seder night, but davens in a Nusach Ashkenaz shul that does. The person asking the shaylah, a certain Reb Yitzchak, was apparently upset that his shul recited Hallel with a bracha on Seder night and wanted to create a commotion to change the practice. Rav Moshe forbids this and emphasizes that one should follow a path of shalom. Rav Moshe further demonstrates that if it is noticeable that Reb Yitzchak is omitting the bracha on Hallel, he must recite the bracha with them so that no machlokes results.

Question #2: Should a woman whose husband recites a bracha on Hallel in shul Seder night recite Hallel with a bracha before the Seder?

This takes us to a new question. Assuming that one’s husband recites Hallel with a bracha on the night of Pesach, should his wife also recite Hallel before the Seder with a bracha?

WOMEN AND HALLEL

Are women required to recite Hallel?

Although Hallel is usually a time-bound mitzvah from which women are absolved (Mishnah Sukkah 38a), some poskim rule that women are obligated to recite Hallel on Chanukah and Pesach since this Hallel is recited because of miracles that benefited women (see Tosafos, Sukkah 38a s.v. Mi; Toras Refael, Orach Chayim #75). All agree that women are required to recite Hallel Seder night because women were also redeemed from Mitzrayim. Rav Ovadiah Yosef reasons that the wife or daughter of someone who recites a bracha before Hallel in shul on Seder night should also recite Hallel with a bracha before the Seder (Shu’t Yechavah Daas 5:34). However, the prevalent custom is not to.

Question #3: When I was in Eretz Yisroel for Pesach, I davened the second day of Pesach with a chutz la’aretz Nusach Ashkenaz minyan, but none of us knew whether we should recite Hallel. What should we have done?

Assuming that this minyan consisted of people who do not usually recite Hallel in shul on Pesach night, they did not need to recite Hallel, and certainly not a bracha on Hallel, in their minyan. Since they are only visiting Israel, and have not yet assumed residence there, they follow their own custom in their own minyan, and their custom is to not recite a bracha on Hallel Seder night.

Reciting Hallel with tremendous emotion and reliving Hashem’s miracles rekindles the cognizance of Hashem’s presence. The moments that we recite Hallel can encapsulate the most fervent experience of His closeness.

In the merit of joyously reciting Hallel, may we see the return of the Divine Presence to Yerushalayim and the rededication of the Beis HaMikdash, speedily in our days.

Spilling the Beans

Question #1: Is Cottonseed Oil Kitniyos?

I know that, in America, everyone uses cottonseed oil on Pesach. However, when I was in Israel for Pesach I was told that they don’t use cottonseed oil because it is kitniyos. Why is there a difference in practice?

Question #2: Lecithin in Pesach Products

When I was a child, it was common to find Pesachdik chocolates containing an ingredient called lecithin. Now I am told that lecithin is not Pesachdik. Do I need to do tshuva on all the lecithin that I consumed?

Question #3: Ascorbic Acid from Kitniyos

I have been told that there are reliable kosher-certifying agencies that allow the use of products that have a kitniyos base. I thought that all forms of kitniyos are prohibited on Pesach. Am I making a mistake?

Knows His Beans

Although the Torah’s prohibition against eating, benefiting from, and owning chometz on Pesach applies only to foods made from the five grains (wheat, barley, spelt, oats, and rye), Ashkenazic Jews and most North African and some other Sefardim have accepted the practice not to eat rice and other grain-like and leguminous foods on Pesach. This is referred to as the prohibition against eating kitniyos. Among the reason given for this custom are:

The possibility that chometz grains could easily become mixed into the kitniyos (Tur 453, see Taz 453:1 and Mishna Berura 453:6).

Kitniyos varieties could be ground into flour and baked into a type of bread, which can create confusion (Taz 453:1, quoting Smak).

There is no requirement to sell kitniyos and no prohibition in deriving benefit from them (Rama 453:1), as long as one does not eat the kitniyos. Therefore one may use soap or lotion made of kitniyos.

Spilled the Beans

Furthermore, if kitniyos became mixed into Pesachdik food, one is permitted to eat the food (Rama 453:1) provided that the kitniyos is not noticeable and it is less than half of the food item (Chayei Odom 127:1). If the kitniyos is noticeable, one should remove the kitniyos and may eat the rest (Chayei Odom 127:1). However, some authorities prohibit the product when the kitniyos was added for taste (Shu’t Avnei Nezer 373).

The prohibition against eating kitniyos is based on custom. In addition to keeping commandments of the Torah and the prohibitions instituted at the times of the Mishna and the Gemara, we are also required to observe those restrictions that were accepted by communities of the Jewish people. This is included in the concept of Al titosh toras imecha, “Do not forsake the Torah taught you by your mother” — that is, the customs accepted by the Jewish people. Thus, we find that some of the details of the rules of kitniyos vary from community to community, and what is prohibited as kitniyos in one community is permitted in another. In these situations, an item that is prohibited in one community because of kitniyos is permitted in a different community.

The Bean Counter

If someone placed kitniyos on my Pesachdik counter, may I still use it on Pesach?

Although I have read responsa from contemporary Rabbonim requiring Ashkenazim to kasher pots used to cook kitniyos, this is by no means obvious. As I mentioned above, kitniyos that fell by mistake into other Pesachdik food becomes bateil as long as the non-kitniyos food is the majority. Based on this, many authorities contend that Ashkenazim may cook in pots previously used for kitniyos since whatever kitniyos flavor transferred to food cooked in the pots will certainly be nullified (Shu’t Zera Emes 3:48). Others prohibit using pots that absorbed kitniyos, stating that the minhag is to not use either the kitniyos food or the pots (Shu’t Rav Pe’alim 3:30; Shu’t Maharam Shick, Orach Chayim #241). Still others follow a compromise position, ruling that one should not use the pots within 24 hours of cooking kitniyos, but permitting use of the pots after 24 hours without kashering (Kaf HaChayim 453:27).

By the way, many Sefardim do not eat kitniyos on Pesach, and many follow an approach that prohibits some kitniyos species. For example, most North African Sefardim (Moroccan, Algerian, Tunisian, and Egyptian) do not eat any kitniyos on Pesach, following the same custom as Ashkenazim; this was also the practice of many Turkish communities (Shu’t Lev Chayim 2:33). Although Iraqi communities usually ate kitniyos on Pesach, many families in Baghdad did not eat rice and most did not eat chickpeas (Rav Pe’alim 3:30). Similarly, the Chida reports that the Sefardim in Yerushalayim in his day did not eat rice.

Full of Beans

What species are included in the prohibition of kitniyos?

Rama (Chapter 464) prohibits the use of mustard on Pesach, although he states that anise and coriander are not kitniyos varieties (453:1). Taz (453:1) asks why mustard is treated more stringently than anise and coriander, since mustard is also not very similar to a grain. Taz explains that mustard is prohibited because its seeds grow on a stalk similar to the way grain grows. Thus, the prohibition of kitniyos includes items that grow similarly to the way grain grows. For this reason, Shu’t Avnei Nezer (#373) prohibits the use of rapeseed oil (canola oil is a variety of rapeseed oil) on Pesach, even though the raw rapeseed is not edible. However, Maharsham (1:183) ruled that rapeseed oil is not necessarily included in the prohibition of kitniyos and may be used in places where the custom is to permit its use. (Today, most communities treat canola oil as kitniyos. However, the predominant custom in South Africa is to not consider canola oil kitniyos on Pesach and permit it.)

It is interesting to note that several other items that we would consider staples for Pesach, such as coffee and potatoes, were involved in kitniyos controversies.

Coffee Beans

Although coffee is the product of a roasted bean, accepted practice is that it is not considered kitniyos since it is the product of a tree, and does not grow directly from the ground. Thus, it does not grow in a way at all similar to grains. Nevertheless, there were places where the custom was to prohibit the use of coffee on Pesach since the average person is not aware of the source of the coffee bean (Shaarei Tshuvah 453:1). Incidentally, one should be aware that coffee now requires proper kosher certification for Pesach. Although in the past, there were no chometz concerns involved in the production of coffee, because of changes in the mass production of coffee one should not use coffee that is not kosher for Passover by a reliable hashgacha.)

Potatoes

Why is potato starch not included in the prohibition of kitniyos?

Indeed, many poskim felt that potatoes and potato starch should be included in the prohibition of kitniyos on Pesach, and there were places where the accepted practice was to prohibit their use (Nishmas Odom Hilchos Pesach #20; Pri Megadim 453:1). Nevertheless, the prevalent custom is to permit the use of potatoes on Pesach (Igros Moshe 3:63). Rav Moshe explains that although some of the reasons that apply to kitniyos apply to potatoes, the prohibition was never extended onto potatoes, probably because it would have created tremendous difficulty.

Popcorn

Some have advocated the production of “shmura popcorn” for Pesach. Although corn is generally assumed to be a variety of kitniyos, the rationale to permit “Pesachdik” popcorn is that one need not treat kitniyos more strictly than one would treat wheat and the other potentially-chometz grains themselves. Thus, since we all eat wheat products on Pesach in the form of shmura matzoh, why can’t one produce “Pesachdik” popcorn? One would carefully check the kernels that they are not accompanied by grain, and then pop the kernels within eighteen minutes from the time that they come in contact with water. This is very easy to do since popcorn does not usually come into contact with water.

Indeed, according to most poskim there would be no problem with making kosher for Pesach popcorn (Chayei Odom 127:1; Rav Shulchan Aruch 453:5). However, the custom is to follow the opinions that prohibit producing products for Pesach consumption out of kitniyos in this fashion. The reason we are stringent is that since people know that kitniyos is not chometz, once people begin making a kitniyos product of any type for Pesach, the standards will not be maintained. Thus, some poskim contend that the prohibition against eating kitniyos on Pesach includes producing kitniyos in any method whatsoever (Shu’t Maamar Mordechai #32).

Cottonseed Oil

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

Lecithin and Vegetable Oils

There were poskim who permitted the use of oils derived from kitniyos sources (Shu’t Maharsham 1:183; Marcheshes). Upon this basis, many communities permitted the use of vegetable oils, lecithin (usually a soy-based product) and other items on Pesach. However, today the accepted practice is not to use these items on Pesach.

A contemporary shaylah is the usage of products that are grown on a medium of soybeans or other kitniyos. Some modern poskim refer to these products as “kitniyos shenishtaneh” or kitniyos that has undergone a transformation. The discussion revolves around a dispute among early poskim whether a prohibited substance that has completely transformed is still considered non-kosher (see Rosh to Berachos=). Based on the ruling of Mishna Berura (216:7), some halachic organizations permit the use of enzymes and other raw materials that are grown on products that are considered kitniyos. Other poskim contend that although these products may be considered kosher lePesach after the fact, one should not arrange a hechsher upon this basis.

Thus, we see that many of the details of the halachos of observance of kitniyos are dependent on local custom. Indeed, one will find discrepancy in practice even among communities that are following halacha fully.

How Do We Make Kosher Wine?

Kashrus is significant to this week’s parsha, and right after Purim and beginning our Pesach preparations. This seems like the perfect week to discuss how we make kosher wine.

Question: Business Lunch

“On a business visit to Israel, I needed to take out some non-Jewish business contacts to a top-quality restaurant, but I was told that I could not order wine to accompany the meal. Yet in America I do this all the time. What am I missing?”

Answer:

The importance of wine to Jewish celebration cannot be underestimated. The pasuk in Tehillim (104:15) teaches that wine gladdens a man’s heart. Chazal, also, treat wine as a special beverage, and therefore it has its very own beracha. Every special event – kiddush, havdalah, weddings, sheva berachos, brisin, pidyon haben – includes a beracha over a cup of wine. And halachah mentions the special role of wine in celebrating Yom Tov.

Grapes and the contemporary “food chain”

In addition, the importance of grapes in modern use can not be taken lightly. Grape-based products are used extensively in all types of food production, including alcohol, liquor, wine vinegar, flavors, natural extracts, colorings, sweeteners, juice drinks, jam, jelly, preserves, candies, fruit ices and various other foods. Thus, not only the wine connoisseur but also the teetotaler and everyone in between are using grape products, although they often do not realize it.

Example:

Many years ago, I was contracted to oversee a special production of kosher grape concentrate, which is another way of saying grape juice with most of the natural water removed, at a non-kosher plant. The entire four-day production was ordered specifically in order to produce a run of kosher fruit ice.

Producing kosher wine

Manufacturing kosher grape juice and wine is a complicated process that requires a very knowledgeable and yarei shamayim staff. From a kashrus perspective, grapes are unusual. They are kosher when they grow, yet kosher wine and grape juice must be manufactured without the product being touched or moved by anyone but an observant Jew. If the product was produced in any other way, it is no longer kosher.

Why is this?

What are yayin nesech and stam yeinam?

In addition to the cardinal prohibition against worshipping idols, avodah zarah, the Torah distanced us from any involvement with or benefit from avodah zarah. One of the laws relating to idol worship is the prohibition from using an item that was used to worship idols, called tikroves avodah zarah. According to the accepted halachic opinion, using tikroves avodah zarah is prohibited min hatorah (Rambam, Hilchos Avodah Zarah 7:2; cf. Tosafos, Bava Kama 72b s.v. De’i, who rules that the prohibition against its use is only miderabanan). Included in the prohibition against using tikroves avodah zarah is that one may not derive any benefit from wine that was used to worship an idol. This prohibited beverage is called yayin nesech, literally, sacramental wine, or wine used for worship.

Chazal extended this proscription by banning use of any wine or grape juice which a gentile touched, and, in some instances, even if he just moved it or caused it to move. This prohibition is called stam yeinam.

Although one may not drink stam yeinam, the halachic authorities dispute whether one may benefit from stam yeinam. According to the lenient opinion, this means that if a gentile who does not worship idols, touched or moved wine that a Jew owned, one may derive benefit from the wine. Notwithstanding this leniency, most authorities prohibit purchasing stam yeinam, and only permit benefiting from it if one already owns it. Nevertheless, a minority opinion permits a Jew to purchase stam yeinam in order to make a profit, and, upon this basis, many Jews own and owned taverns or liquor stores, where they sold non-kosher wine to gentile customers (see Rama, Yoreh Deah 123:1).

Producing kosher wine

Unquestionably, manufacturing kosher wine and grape juice is one of the more complex areas of kosher food production. If one is making kosher wine in an otherwise non-kosher facility, one needs to laboriously kosher the entire factory. The actual manufacture of the wine also usually requires a large team of G-d-fearing individuals, who are all properly trained to fulfill their responsibilities. Furthermore, every facility producing kosher wine should have a resident supervisor who is a talmid chacham and expert in the relevant halachos. It is for this reason that people should be very careful to ask questions before drinking wines, to make sure that the people overseeing the hechsher are knowledgeable and G-d-fearing.

The basics of wine production

Wine is the fermented juice of grapes. All grapes grow with naturally occurring yeast on their skin that, left to its own devices, feeds on the natural grape sugars in the juice, thereby converting it to alcohol. The result is that sweet grape juice becomes intoxicating and delicious wine. This is the way Rashi produced wine in northern France over nine hundred years ago and the way wine was produced until the modern era. Wine produced this way is completely natural, but its taste will vary from year to year, and perhaps even from vat to vat.

Modern wineries rarely produce wine this way, preferring to pasteurize the juice, thereby killing the natural yeast, so that they can control how their wine will taste. After pasteurization, they add specific strains of yeast to produce wine to their desire. The wine is then bottled under vacuum and sealed.

Often, grape juice is concentrated by evaporating off most of its natural water. Grape concentrate lasts much longer than grape juice and has its own uses as a sweetener.

Here come the grapes!

Now let us follow the production – from grapes to bottled wine. Wine grapes are picked and dropped into closed-bottom boxes, since one wants to preserve as much of the juice as possible. The grapes are delivered by truck to the winery, where a forklift picks up the boxes and turns them upside down, dropping the contents into a piece of equipment that removes the stems from the grapes and is therefore called a “destemmer.” What is left is a mixture of grapes and juice that is pumped to a holding tank.

In a properly run hechsher, every step after the initial dumping of the boxes of grapes into the destemmer is performed by an observant Jew. That means that a frum Jew must push the production buttons of the equipment. In the special production that I oversaw, since the mashgichim hired for the special run were inexperienced in plant operations, every production point was manned by two people – a factory worker, who instructed the mashgiach how to operate the machinery, and a mashgiach who pushed the buttons and actually did what needed to be done.

At this point, we need to take a break from the juicing process and turn our attention to a discussion in halachah.

When does it become wine?

As I mentioned before, wine becomes forbidden when it is touched by a non-Jew. At what point is the product called “wine,” causing this prohibition to take effect? While the grapes are growing, or even while they are being harvested, a gentile’s contact will not affect them. So, at what point do we need to be concerned?

The halachic conclusion is that grape product is considered wine once the juice has been removed or separated from the pulp of the grapes (Shulchan Aruch, Yoreh Deah 123:17). This step is called hamshachah, literally, drawing away. When this happens, both the liquid that has been removed as well as the entire remaining mixture are considered wine and become forbidden if handled by a non-Jew. Once hamshachah takes place, if a gentile touches the juice, he makes it prohibited.

Example:

I was once visiting a wine production facility with a less-than-stellar reputation for its kashrus standard. While there, I noticed gentile staff remove samples of juice from the crushed material well before the wine had been formally separated. The lab technician dipped a paper cup into the vat to draw his sample, gently separating some juice from the rest. This simple act made the entire batch into prohibited stam yeinam. (If you are curious to know what I did subsequently — I brought the fact to the attention of the mashgiach, who told me that he follows the instructions he is given by the certifying rabbi. I asked the rabbi — who denied that laboratory personnel take any samples, since he had instructed them not to do so. This is merely one example of why this particular brand is avoided by anyone seriously concerned about kashrus.)

As we noted, it is crucial to avoid any contact of non-Jews with the juice from the time any hamshachah has occurred. It is also forbidden to allow a non-Jew to pour wine or move a vessel containing wine, even though he does not touch the wine directly. If he touches a stream of wine being poured from a container, then the contents of the entire container, even that which has not yet been poured, becomes forbidden. For this reason, an observant Jew must operate every procedure during production until the wine becomes mevushal, a concept I will explain shortly. Therefore, a winery must have an adequate staff of qualified mashgichim throughout all phases of the production.

It is permitted to allow a gentile to carry or touch a sealed bottle or container of wine. Also, a non-Jew’s touching the outside of an open container or tank of wine without moving the wine inside does not prohibit the wine.

Back to our grapes

Now that we understand the serious problem that can result from inadequate control, let us return to our juice production. The first step common to all types of wine production is called the “crush” — where the grapes are literally crushed to remove all juice from the pulp. When the crushing is finished, every drop of juice has been removed, and the remaining pulp is so dry that it is almost useless. Sometimes, it can be salvaged as animal feed, other times as fertilizer, or it can be fermented into a product called marc alcohol, but these are not the primary concerns of the wine or juice producer.

The Heat Exchanger

After pressing, the juice is filtered. In most North American wine production, the juice is now pasteurized by processing it in a piece of equipment called a plate heat exchanger. This highly efficient piece of equipment consists of interlocking plates tightly screwed together, in which the product and extremely hot water pass through alternating sections, thereby pasteurizing the juice without losing any to evaporation. The juice is then cooled down and placed in huge, refrigerated storage tanks.

If the wine is to be sold as non-mevushal, the juice is not sent to the heat exchanger, but instead is pumped directly from the filter to the refrigerated storage tanks. This juice will be inoculated with yeast and aged to become the desired wine product.

Mevushal

The Gemara (Avodah Zarah 30a) teaches that the prohibition of stam yeinam does not exist if the wine was mevushal before the gentile handled it. According to the Rambam (Hilchos Maachalos Asuros 11:9), the reason for this heter is because no self-respecting idolater would consecrate cooked wine to his deity. Cooking wine harms it, and cooking grape juice affects its ability to ferment naturally. Indeed, some winemakers never pasteurize the juice from which they produce their wines, because heating compromises the taste. For this reason, halachah views wine that is mevushal as inferior, and this has several ramifications.

The Rosh (Avodah Zarah 2:13) does not consider this a sufficient reason to explain why cooked gentile wine is not included under the prohibition of stam yeinam. He explains that mevushal wine is permitted because it is extremely uncommon, and, therefore, Chazal did not include it within the prohibition of stam yeinam.

Is pasteurization the same is mevushal?

Most American hechsherim treat pasteurized juice and wine as mevushal, and therefore are not concerned if a gentile is in contact with grape juice or wine after it has been pasteurized.

However, many prominent Eretz Yisrael authorities feel that contemporary heat exchange pasteurization does not qualify as bishul. Among these authorities, we find two different reasons. Rav Shelomoh Zalman Auerbach feels that mevushal wine must be a product that is clearly recognized as inferior, whereas pasteurized wine is not considered an inferior product. Even if we assume that certain varieties of wine would never be pasteurized, and we also assume that a professional winemaker can always identify that a wine is mevushal, Rav Shelomoh Zalman contends that mevushal wine must be so affected by the bishul that the typical gentile would notice its inferior quality. However, a modern heat exchanger pasteurizes the product without making a pronounced change in the product’s taste (Shu’t Minchas Shelomoh 1:25).

Those who challenge his approach feel that since pasteurization heats the wine to a sufficient temperature to be considered bishul, the wine meets the standard that Chazal established for it to be outside of their gezeirah. Furthermore, they contend that it is halachically significant that a wine connoisseur will notice whether a wine was pasteurized or not. For example, French wines, Niagara wines, many quality California wines and many quality Israeli wines are not pasteurized, because this ruins the wine’s taste.

Rav Yosef Shalom Elyashiv held a different reason why pasteurized wine does not qualify as mevushal. Since this wine is readily available today, the reason why the Rosh permitted mevushal wine – that it is uncommon — does not apply. The decision of Rav Shelomoh Zalman Auerbach and Rav Yosef Shalom Elyashiv is followed by many contemporary authorities.

Rav Ovadyah Yosef followed an approach in-between the position just quoted and that of the lenient American poskim mentioned above (quoted in Nishmas Avraham, end of Yoreh Deah). Although he accepted that pasteurized wine can be considered mevushal after-the-fact, he considered this psak a be’di’eved, to be relied upon only if a mistake occurred. He forbade a company selling pasteurized kosher wine from labeling the product as mevushal.

Now, we may return to question #1: Someone will have non-Jews at his table and must serve quality wine. What does he do? It is impolite to pour the wine and keep the bottle off the table. Therefore, his only viable option is to serve mevushal wine. May he use pasteurized wine? While the American hechsherim allow him to, according to Rav Shelomoh Zalman Auerbach and Rav Elyashiv he could only bring wine to the table if he first poured it into a pot and cooked it – which will undoubtedly ruin the wine.

It is interesting to note that the earliest discussion of kashrus standards for any food production is mentioned in the context of producing and storing kosher wine in a gentile’s facility. The Mishnah that discusses this topic is the source for the concept of yotzei venichnas, that a mashgiach may exit the facility, as long as the gentiles involved think that he may return at any moment. However, if they know when the Jew will be returning, one has jeopardized all kashrus arrangements. For this reason, every hechsher must be careful that their mashgichim make surprise visits to the factories under their supervision, including visits to the facility in the middle of the night and at other odd times.

Conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this context, we can explain the vast halachic literature devoted to understanding the prohibition of stam yeinam, created by Chazal to protect the Jewish people from major sins. We should always hope and pray that the foods are prepared in accordance with all the halachos that the Torah commands us.

Is It Time for Maariv?

sunset

Question #1:

When is the correct time to daven maariv?

Question #2:

Why is there no repetition of shmoneh esrei for maariv?

Question #3:

Must women daven maariv?

Introduction:

In citing the source for our three daily prayers, the Gemara quotes two approaches. Rabbi Yosi ben Chanina explains that our three daily prayers were founded by our forefathers: Avraham instituting shacharis, Yitzchak mincha, and Yaakov maariv. The source that Yaakov introduced maariv is in the second verse of parshas Vayeitzei, where it says vayifga bamakom and the Gemara explains the word vayifga to mean he prayed. The Gemara also cites Rabbi Yehoshua ben Levi’s statement that shacharis and mincha were established by the Anshei Keneses HaGedolah (the great leaders of Klal Yisrael who lived during the time of the building and the beginning of the Second Beis Hamikdash) to correspond to the offerings that were brought every morning and afternoon in the Beis Hamikdash (see Bamidbar 28:1-8), whereas maariv corresponds to the burning of the remaining parts of these offerings that transpired at night (Brachos 26b).

What we call “maariv” actually fulfills three different mitzvos, and the above-quoted Gemara is referring to only one of these mitzvos, the part called the tefillah, which are the prayers we recite as shmoneh esrei. (The avos did not establish the shmoneh esrei, but the concept that one should daven three times a day. The text of the shmoneh esrei was written by the Anshei Keneses HaGedolah.)

The other two mitzvos that we fulfill when we pray maariv are kriyas shma, whose recital is required min haTorah every morning and night (Brachos 2a), and the birchos kriyas shma, which Chazal instituted to surround the shma with brachos (Mishnah Brachos 11a). These brachos together with the shma constitute the part of the davening between borchu and the shmoneh esrei. (Ashkenazim in chutz la’aretz also add another bracha that begins with the words Baruch Hashem LeOlam between the birchos kriyas shma and the kaddish that precedes the shmoneh esrei.)

Although we are very familiar with how we recite the order of the different parts of maariv, we should be aware that, at the time of the Gemara, this order was a topic of dispute between Rabbi Yochanan, whose opinion we follow, and Rabbi Yehoshua ben Levi, who contended that the shmoneh esrei of maariv should be recited before shma and the birchos kriyas shma, so that one recites shma closer to the time one retires (Brachos 4b).

Why is there no maariv repetition?

As a preamble to answering this question, let us examine a famous event that occurred shortly after the destruction of the Beis Hamikdash, after the main Sanhedrin and its associated yeshiva had been forced to evacuate Yerushalayim and reestablish itself in the city of Yavneh. To understand this anecdote properly, we must realize the historical context that the Beis Hamikdash, which had been the central focus of all organized Torah life, had been recently destroyed, and there was concern whether an organized Jewish community could maintain itself without the Beis Hamikdash.

Rabbi Shimon bar Yochai, then a young student in the yeshiva, posed the following query: Is maariv (referring to the tefillah part) reshus, usually translated as “optional,” or is it required? First he brought his inquiry to the great scholar Rabbi Yehoshua, the rebbe of Rabbi Akiva, who ruled that tefillas arvis reshus. Afterwards, Rabbi Shimon shared his question with Rabban Gamliel, who was the rosh yeshiva and the head of the Sanhedrin, who responded tefillas arvis chovah, the maariv prayer is required.

Rabbi Shimon noted that he had previously heard Rabbi Yehoshua’s opinion to the contrary, to which Rabban Gamliel responded that Rabbi Shimon should wait until all the scholars had arrived in the Beis Hamedrash. After the students entered the Beis Hamedrash, Rabbi Shimon repeated his inquiry, and Rabban Gamliel immediately answered tefillas arvis chovah. Rabban Gamliel then asked whether anyone disputed this, to which Rabbi Yehoshua responded in the negative. Rabban Gamliel challenged Rabbi Yehoshua, announcing that it had been reported that Rabbi Yehoshua had ruled that tefillas arvis reshus. Rabban Gamliel then ordered Rabbi Yehoshua to arise so that they could hear the testimony that he had indeed ruled maariv to be only reshus. Rabbi Yehoshua acknowledged that he had indeed ruled this way. Rabban Gamliel then continued the lecture, without granting Rabbi Yehoshua permission to sit down.

This continued for a short while, until the students objected to Rabban Gamliel’s highhanded treatment of Rabbi Yehoshua. The lecture was stopped, and the decision was reached to remove Rabban Gamliel from his position as rosh yeshiva and as head of the Sanhedrin, and to install Rabbi Elazar ben Azaryah in his stead. Eventually, all understood that although the consensus was that Rabban Gamliel was wrong for his strong tactics, his motives were completely sincere. He had been ruling with an iron fist to maintain a central authority for Torah in Klal Yisrael, out of concern that in the absence of such strong authority, the centrality of Torah leadership over Klal Yisrael may dissipate. Eventually, Rabban Gamliel was returned to his position with Rabbi Elazar ben Azaryah serving as rosh yeshiva and the head of the Sanhedrin one week in four (Brachos 27b- 28a).

Is Maariv Optional?

Ultimately, the halachic conclusion is that maariv is a reshus. Is maariv really optional? Can one decide every night if he wants to skip maariv?

The Rishonim already note a ruling that appears to contravene the statement that maariv is optional. Someone who missed maariv must recite a makeup prayer, called a tefillas tashlumim, after the next morning’s shacharis. However, this ruling appears to contradict the statement that tefillas arvis reshus. If maariv is optional, why must one make up the missed prayer?

In response to this question, Tosafos explains that when the Gemara states that maariv is reshus, it does not mean that it is optional, but that it is less obligatory than other requirements. For example, should one need to choose between fulfilling two different mitzvos in a situation where one cannot fulfill both of them, maariv is pushed aside (Tosafos, Brachos 26a s.v. Ta’ah). In all other circumstances, one is obligated to recite maariv.

The Rif answers the question in a different way. He explains that indeed maariv is technically not obligatory. However, someone who decided to recite maariv makes it obligatory on himself and must pray correctly, even if he needs to pray a makeup.

Must a Woman Daven Maariv?

Does any other halachic distinction result from this difference of opinion between Tosafos and the Rif? It seems that a difference results regarding whether, according to those authorities who rule that women are obligated to daven shacharis and mincha daily, a woman must also daven maariv daily. According to Tosafos, who contends that maariv is obligatory, a woman should be required to daven maariv daily. This ruling is stated by the Aruch Hashulchan (106:7). However, other authorities rule that women are not obligated to daven maariv since they never accepted it as a responsibility (Graz 106:2; Mishnah Berurah 106:4; cf. Magen Avraham 299:16). This approach reflects the opinion of the Rif that although maariv was originally reshus, since men daven maariv regularly, they must continue to do so, but women, who for the most part do not regularly daven maariv, are exempt from doing so (see Shach, Yoreh Deah 375:14).

Why should Yaakov lose out?

This previous discussion should arouse a question in every one of our readers. Since Yaakov Avinu introduced tefillas maariv, why is it treated “second rate” – why is maariv reshus, and only the tefillos founded by Avraham and Yitzchak are obligatory?

Why is Maariv Different?

To answer this question, let us revert to our previous discussion – where I noted that there were two approaches, one contending that the daily prayers were instituted by our forefathers, and the other maintaining that the prayers were created to correspond to the daily offerings. According to both of these approaches, we can explain why maariv is treated somewhat differently from shacharis and mincha.

According to the interpretation that the forefathers instituted the daily prayers, although Yaakov was the first to daven maariv, he had not intended to daven so late in the day, but Hashem caused the sun to set suddenly, giving Yaakov no choice but to daven after nightfall. Since this davening was performed not as Yaakov’s first choice, but because he had no other option, the prayer instituted this way is reshus (Pnei Yehoshua, Brachos 26b s.v. Mihu).

According to the approach that our prayers correspond to the daily offerings, shacharis and mincha each represent the daily korban tamid that was offered in the Beis Hamikdash. Maariv represents the remaining parts of the daily tamid that were burnt the following night on the mizbei’ach. As such, since this step in the processing of the korban is non-essential, the prayer is also not required (Rashi to Shabbos 9b s.v. Lemaan).

Repetition of Maariv

With this background, we can now answer the question we raised above: Why does maariv not include a chazzan‘s repetition of shmoneh esrei, as is done for both shacharis and mincha. The answer is that although today maariv is obligatory, it is not the same level of requirement as are shacharis and mincha. Since everyone is required to daven shacharis and mincha, Chazal were concerned that unlettered individuals would be unable to fulfill the mitzvah. Chazal therefore instituted the repetition of the tefillah so that those unable to daven otherwise can fulfill their requirement by listening to the chazzan‘s prayer. However, since maariv is reshus, Chazal were less concerned that the unlettered would be unable to fulfill this responsibility and therefore they did not institute a repetition.

When Do We Daven Maariv?

Having established that maariv is indeed obligatory, our next question is: When is the earliest time that one may begin maariv? Indeed, although the Mishnah establishes times for the other prayers, it leaves the time for maariv fairly vague. The accepted halachah is that once the time for davening mincha is over, one may daven maariv (Tosafos, Brachos 2a).

So now we need to resolve: Until when can one daven mincha?

The Mishnah records a dispute between the Tana’im regarding this question. According to the Sages, one is allowed to daven mincha until “the evening,” while according to Rabbi Yehudah, the last time for mincha is “plag hamincha,” which I will soon explain. The dispute between them is dependent on how late one may offer the afternoon korban tamid. According to Rabbi Yehudah, one may offer it only until plag hamincha; whereas according to the Sages, one may offer it until evening (Brachos 26b).

So we now know. According to Rabbi Yehudah, one may daven mincha until plag hamincha, and maariv after plag hamincha, whereas the Sages contend that one may daven mincha until “evening,” and maariv afterwards.

When is Evening?

Of course, now we need to find out when is “evening,” when is plag hamincha, and whether we rule like the Sages or like Rabbi Yehudah.

The authorities dispute whether “evening” here means shortly before tzeis hakochavim, nightfall (see Rama 233:1 and Mishnah Berurah #14) or whether it means sunset (Rabbeinu Yonah; authorities cited by Shaarei Tziyun 233:18). According to the first approach, the Sages hold that one may daven mincha until nightfall but one may not daven maariv until after nightfall. According to the second approach, one may not daven mincha after sunset but one may daven maariv then.

When is Plag Hamincha?

Rabbi Yehudah ruled that the latest time to daven mincha is a point in time called plag hamincha. When is plag hamincha? According to the most commonly accepted interpretation, plag hamincha is calculated by dividing the time between sunrise and sunset into 48 “quarter-hour” segments. The point of time that is five of those segments prior to sunset is plag hamincha. Obviously, each segment will not be exactly fifteen minutes, but will vary according to the length of the day. An easier way to express this is to say that plag hamincha is 1 1/4 “halachic hours” (in Hebrew, sha’os zemaniyos) before sunset, where a “halachic hour” is defined as a twelfth of the time between sunrise and sunset. (There are other authorities who calculate the halachic hours and plag hamincha from halachic dawn, alos hashachar, until nightfall, tzeis hakochavim. In their opinion, plag hamincha is considerably later in the day than it is according to the first opinion quoted.)

Do We Rule like the Sages or like Rabbi Yehudah?

Now that we have discussed the dispute between the Sages and Rabbi Yehudah, we need to know how we rule so that we can determine when is the latest time for mincha and the earliest time for maariv. Most disputes in the Gemara are resolved either by the Gemara itself or by the early halachic authorities. However, in regard to this dispute, the Gemara states something unusual — that one can choose which opinion he wants to follow (Brachos 27a). One wishing to daven maariv after plag hamincha, following the opinion of Rabbi Yehudah, may do so, and one who would rather recite mincha after plag hamincha may follow the opinion of the Sages and do so.

Now our question is:

How consistent must I be? May I follow Rabbi Yehudah’s approach one day and the Sages approach on a different day? What about on the same day – may I daven mincha after plag hamincha following the Sages, and then daven maariv before sunset following Rabbi Yehudah?

Most Rishonim rule that one must consistently follow one of these two opinions. In other words, if one decides to daven maariv before sunset following Rabbi Yehudah, then he must be consistent and always daven mincha before plag. Once he follows Rabbi Yehudah’s ruling in this matter, he may no longer daven mincha after plag — to do so is contradictory (Rabbeinu Yonah, Brachos 18b, s.v. D’avad; Rosh, Brachos 4:3; Tur, Beis Yosef, and Shulchan Aruch 233). Being inconsistent is referred to as following a path that is tarti desasri ahadadi, two approaches that contradict one another, since neither Rabbi Yehudah nor the Sages approve of what he is doing, albeit for different reasons.

Some authorities permit one to follow Rabbi Yehudah on one day and the Sages on a different day, providing one is consistent on the same day by davening mincha after plag and maariv before sunset (Hashlamah and Mordechai, both quoted by Beis Yosef 233).

Notwithstanding this discussion, the frequent practice was to daven mincha and maariv together after plag hamincha, which appears to be inconsistent according to all opinions. Nevertheless, the poskim acknowledge that this was commonly done and suggest different reasons why this practice was accepted, or at least tolerated. Some explain that if this approach was not accepted, many communities would be unable to consistently have a regular minyan, or people would not daven maariv since they would not wait in shul until the later time to daven maariv. As a result, for the sake of tefillah betzibur many authorities allowed the tarti desasri but ruled that someone who davened mincha after plag and is davening maariv privately (beyechidus) must wait until nightfall to daven maariv (Magen Avraham 233:7).

We should note that, according to the accepted halachah, one who davens maariv before nightfall, should recite the full shma over again after nightfall (Shulchan Aruch Orach Chayim 235:1). This is for two different reasons. Firstly, although Rabbi Yehudah ruled that the cutoff time between mincha and maariv is plag hamincha, this is only germane to the shmoneh esrei parts of our davening, whose timing is dependent on the daily tamid offerings as mentioned above. However, the mitzvah of reading shma must be fulfilled at the time people retire for the evening, as the Torah says beshachbecha, and few people retire for the evening before it gets dark. Since the time for reciting the evening shma is when most people might consider it bedtime, one cannot not fulfill this mitzvah until nightfall according to most opinions. (However, see Rabbeinu Tam, quoted by Tosafos, Brachos 2a.)

Secondly, the requirements of davening at a specific time and reciting the birchos kriyas shma are rabbinic in nature rather than Torah mandated, which allows some leniency. However, regarding the Torah requirement of reading the shma, we should follow the stricter approach and recite it again after it is definitely nightfall.

I’ll share one anecdote to show how far we should be concerned that one recites shma after it is dark. One gadol I knew from the previous generation, who established his community in America, was concerned that baalei batim would not recite shma after dark, and thus not fulfill the mitzvah min haTorah properly. He also knew that if the break between mincha and maariv was too long, many would not attend shul regularly. He thus established in his community that they began mincha after sunset, followed by a fifteen minute shiur and then maariv so that people would daven maariv in its correct time. In other words, he decided that the entire community should daven mincha at a time that he himself considered non-optimal according to some poskim, in order to guarantee that everyone recite shma properly in its proper time! Although this approach is certainly not the most accepted, we should all be aware of the many considerations

Contemporarily, most communities have many minyanim scheduled both for mincha and for maariv. An individual can, therefore, with a small amount of planning, daven in a way that he avoids any question of davening tarti desasri.

The Significance of Vehu Rachum

Question #1:

“I was once told that there are places in the long Vehu Rachum prayer where one should stop and wait to hear keriyas haTorah. What are they, and why?”

Question #2:

“Why is the prayer Vehu Rachum recited only on Monday and Thursday?”

Question #3:

“In some shullen that I attend, there is often a bang on a shtender with an announcement that today is the yahrzeit of some great rebbe, and therefore we will skip Tachanun. What is the source of this practice?”

 

Answer:

This week, since we begin reading about the Mishkan, the forerunner of the Beis Hamikdash, of which it says ki beisi beis tefillah yi’karei, I am sending an article about the special prayer that we say on Mondays and Thursdays that begins with the words Vehu Rachum. The original article was written many years ago for parshas Shemos, and I am including the original introduction.

Our parsha mentions that when the king of Mitzrayim died, vayei’anchu bnei Yisrael min ha’avodah, vayiz’aku, vataal shav’asam el haElokim, that the Jewish people sighed and cried out, and that their cry for help (shav’a) rose to Hashem. Three different terms for prayer are mentioned in this verse. Indeed, the Hebrew language has almost twenty words to describe different types of prayer. This week is a good time to study a special prayer of ours – one that represents a different type of prayer.

What is the significance of the special prayer that begins with the words Vehu Rachum?

Vehu Rachum is the lengthy prayer recited on Monday and Thursday mornings on days when we say Tachanun (Shulchan Aruch, Orach Chayim 134:1). There is a very moving story concerning the origin of this prayer. After the destruction of the Second Beis HaMikdash, a boatload of fleeing Jews was captured by a cruel, anti-Semitic ruler. Discovering that they were Jews, he decreed that he would throw them into a fiery furnace, just as Nevuchadnezzar had cast Chananyah, Mishael, and Azaryah into a fiery furnace for refusing to worship idols.

The unfortunate Jews requested thirty days to prepare themselves for their fate. During those days, one of the older Jews dreamt of a pasuk that mentions the word “ki” twice and the word “lo” three times, but he could not remember it. A wise elder realized that the pasuk was Ki sa’avor bamayim itcha ani, uvaneharos lo yishtefucha. Ki seileich bemo eish lo sikaveh, velehavah lo siv’ar boch, “I will be with you when you pass through water; the rivers will not overcome you. When you pass through fire, you will not be singed, and flame will not burn you” (Yeshayah 43:2). The elder declared that this was clearly a sign from Hashem that just as they had been saved from the sea, so they would be saved from the conflagration.

After thirty days, the wicked ruler ordered that a huge fire be lit, and the old man entered it first. The fire separated into three sections, and three tzaddikim appeared. The first began to recite a prayer to Hashem beginning with the words Vehu Rachum, ending with the words melech chanun verachum attah. (In most printed editions that I have seen, these are the first three paragraphs of the prayer.) The second tzaddik added an additional prayer, beginning with the words Anna melech, chanun verachum, again ending with the words melech chanun verachum attah. (In the siddurim, these are the next two paragraphs of the prayer.) The third tzaddik completed the prayer. The fire remained split in three and no Jews were harmed. The prayers recited by all these three tzaddikim is the Vehu Rachum prayer that we recite on Mondays and Thursdays (Kolbo #18).

We can now answer one of the questions asked above:

“I was once told that there are places in the long Vehu Rachum prayer that one should stop and wait to hear keriyas haTorah. What are they, and why?”

Presumably, it is preferable to stop, if possible, at a place which is the end of one of the original three tefillos.

Why is this prayer recited on Mondays and Thursdays?

What sets apart these days from the rest of the week?

Moshe Rabbeinu ascended Mount Sinai to receive the second set of luchos on a Thursday, and returned with them forty days later on a Monday. Hashem’s decision to give Moshe these luchos clearly implied that the Jewish people were forgiven for the sin of the Golden Calf. As a result, Monday and Thursday became etched into the calendar as days of repentance and divine favor for the Jewish people. This is why these days are chosen for fasting and special prayers in times of need, such as during a drought or during Bahab, the three fast days observed a few weeks after Pesach and Sukkos.

What is the order after Shemoneh Esrei?

Ashkenazim recite Chapter 6 of Tehillim while “falling Tachanun.” After this, they say the prayer Shomer Yisrael, while still sitting, and then they begin the prayer Va’anachnu lo neida. The first three words, Va’anachnu lo neida, are recited sitting, after which one stands up to recite the rest of the prayer. On Monday and Thursday mornings, Vehu Rachum is recited while standing before Tachanun is begun.

 

According to Sefardic (Edot HaMizrach) custom, Shemoneh Esrei is followed by Viduy (confession) and then by the Thirteen Attributes of Hashem’s mercy (Hashem, Hashem, Keil, Rachum…). These are both said standing, and then one sits down to recite Chapter 25 of Tehillim, which is the primary part of Tachanun. On Monday and Thursday mornings, the Vehu Rachum prayer is recited after the Tachanun.

In nusach Sefard (the custom of those descended from Eastern European Jewry based on Hassidic influence), Shemoneh Esrei is followed by Viduy and by the Thirteen Attributes of Hashem’s mercy. These are both said standing, after which one sits down to recite Chapter 6 of Tehillim while “falling Tachanun.” This is followed by the prayer Shomer Yisrael, which is said while still sitting, and then by the prayer Va’anachnu lo neida. On Monday and Thursday mornings, the Vehu Rachum is recited between the Thirteen Attributes and Tachanun.

 

Is it more important to say Vehu Rachum or to say Tachanun?

What happens if there is insufficient time to recite both Vehu Rachum and the rest of the Tachanun together with the tzibur?

It seems that one should recite Tachanun with the tzibur and “Vehu Rachum” after davening.

It should be noted that the commentaries dispute what is included in the takanah of reciting Vehu Rachum. Some contend that the takanah is to say Vehu Rachum, and to say it while standing (Shulchan Aruch, Orach Chayim 134:1), whereas others explain that the takanah included only reciting Vehu Rachum, but did not require one to stand (Levush). (They all agree, however, that one should recite Vehu Rachum while standing.)

Vehu Rachum should be treated with the kedusha of the Shemoneh Esrei (Magen Avraham). Therefore, there are those who contend that it should be said quietly (Rama 134:1). However, the Beis Yosef rules that one may say Vehu Rachum aloud, as is the custom of many people.

When do we omit saying Vehu Rachum?

Vehu Rachum is omitted on days that we do not say Tachanun, which include Yomim Tovim and minor festivals.

The Gemara mentions that Tachanun is not recited on Rosh Chodesh (Bava Metzia 59b), because it is considered a minor Yom Tov (see Shibbolei HaLeket).

Why is Tachanun omitted on Yomim Tovim and minor festivals?

Apparently, since Tachanun is a very serious prayer, and a person may become overcome with emotion while reciting it, it was felt that reciting it on these occasions would detract from the day’s celebration.

Numerous customs are recorded concerning when Tachanun is omitted. Records of this topic go back over a thousand years. In the time of the Geonim, Rav Amram Gaon’s yeshivah recited Tachanun even on Chanukah and Purim, whereas in Rav Hai Gaon’s yeshivah, they did not (Shu’t Rivash #412). There were places in Bavel where the custom was to recite Tachanun on Rosh Hashanah, Yom Kippur and Shabbos Shuvah (Shu’t Rivash #412), something that we would find extremely unusual. Every community should follow its custom.

We omit Tachanun between Yom Kippur and Sukkos because the Beis HaMikdash was completed during these days, and there was great celebration (Beis Yosef, quoting Shibbolei HaLeket).

Some communities have adopted the practice of omitting Tachanun on the yahrzeit of a great tzaddik. However, virtually all poskim frown on this practice (Shu’t Shoel Umeishiv 5:39; Shu’t Yabia Omer 3:11; see Chayei Moshe 131:4:4, quoting the Rebbes of Ger, Satmar and Munkach).

It is an accepted practice not to say Tachanun when a chosson is in attendance during the entire week after his wedding. The Magen Avraham (131:12) rules that we omit Tachanun until exactly a week after the moment of the wedding. Some contend that the chosson should not deprive people from saying Tachanun, and therefore rule that a chosson should not come to shul the entire sheva berachos week (Taz 131:10)! This is the way the Mishnah Berurah rules (131:26).

There is also a dispute as to whether we recite Tachanun when a chosson is present on the day ofhis wedding. The Magen Avraham contends that Tachanun is not said, while the Taz holds that it is. Each community should follow its custom or the psak of its rav.

There are many other dates or special occasions when the accepted practice is to omit Tachanun. However, space does not allow us to explain the reasons for each of these customs.

Conclusion

Now that we are aware of the origin of the tefillah Vehu Rachum, we can recite the words with far deeper and greater feeling, knowing how grateful we must be for not having to contend with such intense and trying tests. Let us use the spiritual steps that those tzaddikim built for us to make an effort to internalize the message.

The Saga of the Expired Ticket

PART I: The Saga of the Expired Ticket

Two yeshiva students, Beryl Bernstein and Aaron Adler*, make an appointment to discuss a financial matter with me. Thank G-d, there is no ill feeling between them, just a practical question regarding who is required to pay for a plane ticket. Here is the background to the story:

Beryl and Aaron were taking a brief trip to visit their families. Beryl purchased a round trip ticket, whereas Aaron had the return ticket from his previous trip and was planning to purchase a ticket back to Yeshiva from home. All went well on the trip there; however, shortly after their arrival, Beryl took ill and realized that he would be unable to return to yeshiva on the flight he had originally booked. The travel agent informed his parents that although it was impossible to transfer the ticket to a later flight, he could rewrite the ticket in someone else’s name with only a small transfer fee.

Beryl called Aaron, asking him if he had as yet purchased a ticket back, which indeed he had not. Aaron discussed the matter with his parents, who decided to help out the Bernsteins, since Aaron needed a new ticket anyway. Beryl’s parents instructed the agent to change the name on the ticket while leaving the billing on their credit card. The Bernsteins agreed that they will pay the change fee whereas the Adlers will compensate them for the price of the ticket.

All was fine until the morning of the flight. Aaron woke up sick; clearly he would not be flying today. The Adlers contacted the issuing travel agent to find out what he could do with the ticket. He responded that he could transfer the ticket yet again but needed the Bernsteins’ approval to change the billing on their credit card. The Adlers tried many times to contact the Bernsteins to arrange the change of ticket, but were unsuccessful at reaching them. Unfortunately, the ticket went unused and became worthless.

Later, both Aaron and Beryl purchased new tickets for the flight back to yeshiva. In the meantime, the Adlers have not yet paid the Bernsteins for the first ticket and have the following question: Must they pay for the ticket which they were unable to use, thus requiring them to pay for two tickets? In their opinion, all they were trying to do was to help out the Bernsteins from having the ticket go to waste, although unfortunately it did anyway. The Adlers contend that they had found a cheaper ticket and chose to help out the Bernsteins even though it was more expensive. They feel it unfair to expect them to compensate the Bernsteins for attempting to do a favor that backfired, particularly since they tried to reach the Bernsteins to make sure the ticket did not go to waste.

On their part, the Bernsteins contend that other people were interested in using Beryl’s ticket, and that they sold it to the Adlers for the Adlers’ benefit. Furthermore, they note that they were not home the day the Adlers called because they were away at a simcha and that they did have their cell phones with them.

Are the Adlers obligated to compensate the Bernsteins for the unused ticket or not?

PART II: Who Appears Before the “Judge”?

Aaron and Beryl came to me with the request that I resolve an issue germane to the payment of an airline ticket. Before hearing details of the case, I asked them who were the parties to the litigation. Were Aaron and Beryl assuming responsibility to pay? Both fine, young gentlemen respond that the parents are assuming responsibility. The bachurim noted that there is no ill will between the families, simply a true desire to do what is halachically correct. Both sets of parents felt that a rav near their sons’ yeshiva would be the easiest way to resolve the issue in an amicable and halachically proper fashion.

I pointed out to Aaron and Beryl that while asking a rav to clarify the halacha is indeed an excellent way to resolve the matter, at the same time, the situation was in one way somewhat unusual. Ordinarily, when two parties submit litigation to a rav or a Beis Din, each party makes a kabbalas kinyan (to be explained shortly) obligating them to obey the decision of that particular rav or Beis Din. In the modern world, the two parties also typically sign an arbitration agreement that they are accepting this rav’s or Beis Din’s adjudication. Although halacha does not require signing an arbitration agreement, this is done nowadays in order to provide simple proof that both parties accepted the particular Beis Din’s authority and to strengthen the Beis Din’s power as an arbitration board under secular law. (In most locales and circumstances, a civil court will accept the decision of a Beis Din as a form of binding arbitration.)

WHAT IS A KABBALAS KINYAN?

A kabbalas kinyan means performing an act that obligates one to fulfill an agreement. For example, prior to the signing of a kesubah, the chosson makes a kabbalas kinyan, usually by lifting a pen or a handkerchief, thereby demonstrating that he has accepted the responsibility to support his wife. Similarly, when appointing a rav to sell one’s chometz, one performs a kabbalas kinyan to demonstrate the authorization of the rav as one’s agent.

In our instance, a kabbalas kinyan demonstrates that one accepts the authority of this particular rav or Beis Din to rule on the matter at hand.

HARSHA’AH – POWER OF ATTORNEY

Beryl asked me, “Can’t I represent my parents in this matter?”

I answered him, “Certainly. One can appoint someone to represent him in halachic litigation by creating a harsha’ah. For example, let us say that it is impractical for the suing party to appear before the Beis Din in the city where the defendant resides. He can sue by appointing someone on his behalf and authorizing this by executing a harsha’ah, the halachic equivalent of a power of attorney.”

I returned to the case at hand.

“Therefore, in our case, the two of you could represent your parents by having them execute harsha’os appointing you as their respective agents.”

Aaron piped up: “I don’t think anyone really wants to make a full din torah out of this. I think we simply want to know what is the right thing to do according to halacha.”

Technically, without execution of harsha’os, either side could later claim not to have accepted the decision of the rav or Beis Din involved, and could avoid having the litigation binding. Nevertheless, in our situation, both parties seemed honorable and simply wanted to know the halacha. Both sons said that their parents had requested that they jointly ask a shaylah and that they would follow the decision. Thus, although following the strict rules of litigation requires both a harsha’ah and a kabbalas kinyan from each side, I elected to handle the situation informally, calculating that this would generate the most shalom.

PART III: Are They Parties or Participants?

Why didn’t I have the two bachurim each make a kabbalas kinyan binding themselves to my ruling?

Such a kabbalas kinyan would have no value, since the person making the kabbalas kinyan binds himself to accept the authority of the specific rav or Beis Din. However, the sons here are not parties to the litigation and therefore their kinyan would not bind either themselves or their parents unless they had previously executed a harsha’ah.

PART IV: Opening Arguments

Let us review the points made by each of the parties: The Adlers claim that they were simply doing a favor for the Bernsteins. They were willing to absorb a small loss for the sake of the favor, but certainly had no intention of paying the Bernsteins for a ticket that they would never use. They also feel that since they could not reach the Bernsteins to change the ticket, the Bernsteins were partially responsible for the ticket becoming void.

The Bernsteins are claiming that the Adlers purchased the ticket from them and that what occurred subsequently is exclusively the Adlers’ predicament and responsibility. Furthermore, the Bernsteins contend that the Adlers did not really save them money because there were other people who would have purchased the ticket from them. And regarding their unavailability, they were at a simcha, which is certainly a reasonable reason to be away, and they were reachable by cell phone. It is not their fault that the Adlers did not ask them for cell phone numbers.

Do the Adlers owe the Bernsteins for the ticket that they did not use? After all, the Adlers point out that they were doing the Bernsteins a favor, and that they tried to contact the Bernsteins before the ticket became worthless. Having discussed the background to this “litigation,” we need to address the halachos pertinent to the case.

PART V: In the Judge’s “Chambers”

At this point, we can consider the arguments and counter-arguments of the two parties. The Adlers’ contention that the Bernsteins were unavailable does not affect the issues at stake. The Bernsteins are not obligated to be accessible at all hours of the day, and cannot be considered as having damaged the Adlers through their unavailability. Thus, whether the Bernsteins could have been reached by cell phone or not, whether they should have remembered to supply the Adlers with their cell phone number or not, and whether they were away to celebrate a simcha or not, are all not germane to the issue.

WHO OWNED THE TICKET?

Essentially, the Adlers are contending that they assumed no fiscal liability for the ticket unless they used it, and were simply attempting to help the Bernsteins. Does this perception reflect what happened?

Certainly, if the Adlers had told the Bernsteins that they were not assuming any responsibility for the ticket unless they actually used it, they would not be liable for it. However, they did not say this when they arranged for Aaron to obtain the ticket. Rather, they had agreed that the ticket be reissued in Aaron’s name without any conditions.

The issue we need to resolve is, “Who owned the ticket when it became invalid?” Here we have a somewhat complicated issue, since the ticket was reissued, yet it remained billed to the Bernsteins’ credit card.

Someone who purchased an item that was subsequently damaged cannot claim a refund from the seller unless the seller was guilty of deception (Bava Metzia 110a). Once the item has changed possession, any damage that occurs is the loss of its current owner and he cannot shift responsibility to the previous owner. This occurrence is called mazalo garam, his fortune caused this to happen (see, for example, Rashi to Bava Metzia 103a, s.v. azla lei). This means that each person has a mazel that will bring him certain benefits and losses during his lifetime, and one must learn to accept that this is Hashem’s will. Specifically, the Gemara refers to children, life and sustenance as three areas dependent on mazel (Moed Katan 28a). [One can daven to change one’s mazel, but that is not today’s topic (Meiri, Shabbos 156).] Thus, if the Adlers indeed owned the ticket, the resultant loss is theirs, and they should chalk it up to Hashem’s will. (Colloquially, we very accurately refer to this situation as being bashert.) Thus, what we need to determine is whether the Adlers had halachically taken possession of the ticket.

KINYAN

According to halacha, for property to change hands there must be not only the meeting of the minds of the buyer and the seller, but also the performance of an act, called a maaseh kinyan, that transfers the item into the possession of the buyer. Although both the buyer and the seller agreed to transact an item, it does not actually change possession until the maaseh kinyan transpires. Therefore, if the item is damaged after the two parties agreed to a deal, but before a maaseh kinyan transpired, the seller takes the loss since the item was still his when it became damaged. Determining the exact moment that the act of kinyan takes place and that therefore the item changed possession is therefore highly significant.

[It is important to note that, although a deal may not have been finalized without a kinyan, it is usually forbidden to back out once the two parties have made an agreement. This is based on the verse in Tzefaniah (3:13) which states that a Jew always fulfills his word (see also Pesachim 91a; Bava Metzia 106b). Someone who has a question whether he is bound to an agreement must ask a shaylah to find out whether he may abandon the deal.]

What act creates the kinyan? There is a vast halachic literature devoted to defining what exactly constitutes a maaseh kinyan and under which circumstances these kinyanim work. For example, the methods of transacting real estate are quite different from how one acquires chattel or food.

How does an airline ticket change possession? Obviously, there is no Mishnah or Gemara discussion teaching how one acquires an airline ticket.

In reality, we should first analyze, what exactly does one purchase when one buys an airline ticket? The ticket itself is only a piece of paper, and is even less if it is an e-ticket and has no intrinsic value.

What one is purchasing is the right to a seat on a flight, and the ticket is basically a receipt verifying the acquisition. If our analysis is correct, then the purchase of a non-refundable ticket is essentially buying a right to a particular flight. So we now have a halachic question: How does one acquire such rights and how does one transfer those rights to someone else?

SUTIMTA

One way of acquiring property is called sutimta, which means using a method of acquisition that is commonly used in the marketplace. Since society accepts this as a means of acquiring property, halacha recognizes it as a kinyan. For example, in the diamond trade, people consummate a deal by a handshake accompanied by the good wishes of “mazel ubracha.” Since this is the accepted method of transacting property, the kinyan is binding and halacha recognizes the deal as complete.

Based on the above, we can reach the following conclusion: When the Bernsteins instructed their travel agent to transfer the ticket to Aaron’s name, they were asking him to change the ownership of the right to the seat on that flight from Beryl to Aaron. Once the agent followed up on their instruction and reissued the ticket, the right to that seat became Aaron’s, and the Bernsteins are exempt from any fiscal responsibility. Although Aaron was unfortunately unable to utilize this right and it became void, there is no basis to making the Bernsteins pay for the ticket once it was transferred.

Therefore, the Adlers should accept that Aaron’s illness and the resultant loss of the ticket is Hashem’s will which we do not challenge. Since the loss of this money is attributed to mazel, had the ticket situation developed differently they would have suffered this loss in a different, perhaps more painful way, and they should not be upset at the Bernsteins for the financial loss.

Knowing how some people react to these situations, there is a good chance that the Adlers may be upset at the Bernsteins for what happened, even though this anger is unjustified. To avoid this result, I suggested that the Bernsteins offer some compensation to the Adlers for the ticket. It is very praiseworthy to spend some money and avoid bad feelings even if such expenditure is not required according to the letter of the law.

A Jew must realize that Hashem’s Torah and His awareness and supervision of our fate is all encompassing. Making this realization an integral part of our lives is the true benchmark of how His kedusha influences us personally.

*Although the story is true, all names have been changed.

Should I Recite Ga’al Yisrael Aloud?

Question #1: As a child in shul, I noticed that shortly before the Shemoneh esrei was begun, some of the older European Jews would wait before reciting the words "Shirah chadasha” until the chazzan completed the entire beracha and said "Ga’al Yisrael." They would answer "Amen" to the chazzan’s beracha, then complete the beracha themselves and begin the Shemoneh esrei. I no longer see anyone doing this. Were they following a correct procedure?

Question #2: I have noticed a recent trend that the chazzan recites the beracha of Ga’al Yisrael very softly, and some members of the tzibur recite the beracha aloud with him. Is this a correct procedure?

Question #3: I see that in some minyanim, the chazzan says the words Ga’al Yisrael inaudibly, and in others he says it loud enough for people to hear. Which is the correct approach?

Answer:

Before we can explain this issue, we first need to discuss a topic that appears to be unrelated. The Gemara quotes two apparently contradictory statements as to whether one should recite "amen" after one’s own beracha; one beraisa stating that it is meritorious to do so and the other frowning on the practice. To quote the Gemara:

"It was taught in one source, ‘someone who responds "amen" after his own blessings is praiseworthy,’ whereas another source states it is reprehensible to do this." The Gemara explains that the two statements do not conflict. Rather, they refer to two different berachos. It is praiseworthy to recite amen upon concluding the beracha Bonei Yerushalayim in bensching, whereas it is reprehensible to recite amen after any other beracha (Berachos 45b). The halacha is that someone who is completing a beracha at the same time as the chazzan or anyone else may not recite amen to the other person’s beracha, since in doing so, one has recited amen to his own beracha. For example, when reciting Baruch she’amar, if one completes the beracha at the same moment that the chazzan did, one may not recite amen (Elyah Rabbah 51:2).

What is unique about the beracha Bonei Yerushalayim that one may recite amen after his own beracha?

The Rishonim note that it is not the beracha Bonei Yerushalayim that makes its law special; rather, it is its location as the last of the three main berachos of birchas hamazon. (Although there is still another beracha afterwards, this last beracha is not part of the series, as it was added at a later time in history. Because it is not part of the series, it begins with a full beracha "Baruch ata Hashem Elokeinu Melech Ha’olam,” whereas berachos that are the continuation of a series, such as most of the berachos of Shemoneh esrei, do not begin with these words [Pesachim 104b].) Reciting amen after Bonei Yerushalayim demonstrates the completion of a series of berachos (Rambam, Hilchos Berachos 1:17, 18). On the other hand, reciting amen after one makes any other beracha implies that one has completed a unit, which is not true (Rabbeinu Yonah). We find a similar idea that, upon completing the pesukei dezimra, we repeat the last pasuk (both at the end of Chapter 150 and at the end of Az yashir) to demonstrate that this section has now been concluded (see Tur, Orach Chayim Chapter 51).

Is Bonei Yerushalayim Unique?

Are there other instances, besides Bonei Yerushalayim, when it is praiseworthy to recite amen to your own beracha at the closing of a sequence?

Rashi, in his comments to the above Gemara, indeed mentions that one concludes with amen after reciting the last beracha of the birchos keriyas shema, which is the beracha of Ga’al Yisrael in the morning and of Shomer amo Yisrael la’ad in the evening. (The beracha that Ashkenazim outside Eretz Yisrael recite on weekdays after Shomer amo Yisrael la’ad, beginning with the words Baruch Hashem le’olam, is an addition from the times of the Geonim, and is not one of the birchos keriyas shema.) Many other Rishonim advise reciting amen at the end of any sequence of berachos, adding to Rashi’s list also Yishtabach, the end of a "sequence" that begins with Baruch she’amar, and the closing beracha of Hallel, the sequel to the beracha introducing Hallel (quoted by Beis Yosef, Orach Chayim 66).

From our personal experience, we all realize that there must be something more to the story. We know that whereas we always complete the beracha of Bonei Yerushalayim with amen, we do not close the other berachos mentioned with the word amen. This practice is very old and is already mentioned by Tosafos, who notes that the custom among Ashkenazim is not to recite amen after one’s own beracha except after Bonei Yerushalayim.

To explain our practice, we will first see what other Rishonim state concerning the topic. For example, although accepting the premise that we may recite amen following the last beracha of a series, the Rambam disputes what is considered a succession. He contends that if anything is recited between the berachos, there is no longer a series – thus, Yishtabach, the latter beracha of Hallel and the beracha of Ga’al Yisrael are not considered the ends of series, although the berachos immediately before keriyas shema are (see Hilchos Berachos 1:17, 18, as explained by Beis Yosef). The Beis Yosef (Orach Chayim 51) explains that the Rambam accepts the same distinction regarding reciting amen after Yishtabach or after Hallel. The pesukim recited between the berachos break the succession, and, therefore, one should not recite amen. Those who dispute with the Rambam contend that both Yishtabach and the ending beracha of Hallel are considered the end of a series, since they connect back to the original beracha.

How do we rule?

The Shulchan Aruch, reflecting Sephardic practice, rules a compromise position: Upon concluding Yishtabach, one may add amen to one’s own beracha, but it is not required (Orach Chayim 51:3). It is curious to note that in another place (Orach Chayim 215:1), the Shulchan Aruch mentions that Sephardic custom is to recite amen after Yishtabach and the last beracha of Hallel, and the Rama there notes that, according to the Shulchan Aruch’s conclusion, one should recite amen also after concluding Shomer amo Yisrael la’ad, the last beracha of the evening keriyas shema series. Thus, we see that there is a qualitative difference between berachos that complete a sequence and those that do not. After the first group, one may recite amen after one’s own beracha, whereas after the second group, one may not.

Although Ashkenazim agree that one may recite amen after these berachos, we usually do not recite amen then. However, if one hears the closing of someone else’s beracha when completing one of these berachos, one answers amen to the other person’s beracha (Elyah Rabbah 51:2).

Why is Bonei Yerushalayim Different?

However, we have still not answered the original question: Why single out the beracha Bonei Yerushalayim? If, indeed, one may recite amen after the last beracha of any series, to signify that the series is completed, why does the Gemara mention this only regarding the beracha Bonei Yerushalayim? And, furthermore, why is the prevalent Ashkenazi custom to recite amen, almost as if it is part of the beracha, only after the beracha Bonei Yerushalayim, but not after other closing berachos?

Both of these questions can be answered by studying a different passage of Gemara (Berachos 45b), which cites a dispute between Abayei and Rav Ashi whether the word amen recited following Bonei Yerushalayim should be said aloud. Abayei recited this amen aloud in order to announce his completing the main berachos of birchas hamazon. He did so to remind employed workers to return diligently to work. That is, although Chazal had instituted a fourth beracha to birchas hamazon, they exempted people working for others from reciting this beracha, thereby emphasizing an employee’s responsibility to be meticulous not to cut corners on his full day of work. (In today’s environment, where it is assumed that workers take off for coffee breaks during the workday, an employee is required to recite the fourth beracha of birchas hamazon.) Abayei recited amen aloud at the end of the third beracha, so that everyone would realize that the fourth beracha is not part of the series and is treated halachically differently.

Rav Ashi, on the other hand, deliberately recited amen softly, so that people should not disrespect the fourth beracha. Reciting amen after the third beracha of Bonei Yerushalayim is an apparent carryover of Abayei’s practice – that is, we emphasize that the fourth beracha is not min hatorah.

At this point, we understand the laws applicable to the question of whether one recites amen after Bonei Yerushalayim, Yishtabach, Shomer amo Yisrael la’ad, and the end of Hallel. Sephardim recite amen after all these berachos. Ashkenazim permit this, but in practice say amen only after Bonei Yerushalayim, and for the other three berachos only when responding to someone else’s beracha at the same time.

What about Sheva Berachos?

The Beis Yosef and other authorities note what appears to be an inconsistency in Sephardic practice: Whereas they recite amen after the above-mentioned berachos, they do not recite amen after other series of berachos, such as the morning berachos (birchos hashachar) or sheva berachos.

The resolution of this seeming inconsistency is that a “series” for our purposes means a unit of berachos that one is not permitted to interrupt, which includes Hallel, pesukei dezimra, birchos keriyas shema and birchas hamazon. Although morning berachos and the berachos of sheva berachos are recited as a group, one may interrupt between them. This means that they are not an indivisible unit or series.

What about Ga’al Yisrael?

Now that we have completed our analysis of the amen after Bonei Yerushalayim and other ends of series, we are in a position to discuss whether one should recite amen after the beracha Ga’al Yisrael, and what should be the proper practice regarding the closing of this beracha.

The Beis Yosef contends that, logically, this beracha should be treated the same as any other beracha at the end of a series, which would mean that Sephardim would recite amen afterwards and Ashkenazim would recite amen if they hear the ending of someone else’s beracha at the same time. Indeed, this is how the Rama rules, contending that if someone recited Ga’al Yisrael at the same time as the chazzan, he should recite amen. However, the Beis Yosef (Orach Chayim Chapter 66 and Shulchan Aruch, Orach Chayim 66:7) reports that the Sephardic custom is different, but because of a special consideration: "Now the custom is not to say amen after Ga’al Yisrael… because it is considered a hefsek, an interruption, between completing Ga’al Yisrael and beginning Shemoneh esrei." In a different place, the Beis Yosef (Orach Chayim 51) quotes an ancient source for this "custom" – the Zohar.

The Rama disputes this, contending that reciting amen between Ga’al Yisrael and Shemoneh esrei is not an interruption. However, once one began reciting the words Hashem sefasei tiftach, one is considered to have started Shemoneh esrei and he should not answer amen (Elyah Rabbah).

Avoiding Dispute

Now the story gets interesting. Since the early authorities dispute whether or not one should recite amen after Ga’al Yisrael, which side should we follow? With time, different attempts to resolve this predicament developed. Not wanting to take sides, a practice developed of waiting before one says either Shirah chadasha or Tzur Yisrael in order to answer amen. The Acharonim decry this practice for two reasons:

1. Both of these places are in the middle of the birchos keriyas shema, where it is prohibited to answer amen for any beracha except for Ha’keil hakadosh and Shomei’a tefillah.

2. One is required to start the Shemoneh esrei together with the tzibur.

With this background, we can answer question #1 raised above:

“As a child in shul, I noticed that shortly before the Shemoneh esrei was begun, some of the older European Jews would wait before reciting the words "Shirah chadasha until the chazzan completed the entire beracha and said "Ga’al Yisrael." They would then answer "Amen" to the chazzan’s beracha, complete the beracha themselves, and begin the Shemoneh esrei. I no longer see anyone doing this. Were they following a correct procedure?”

The answer is that although these Jews had observed such a custom, the halachic authorities are opposed to this approach.

So we return to our predicament. Since there is a dispute as to what to do, what should we do?

Some Suggestions

Among early Acharonim, we find two other suggestions regarding answering amen to the beracha of Ga’al Yisrael. The Magen Avraham advocates reciting the words Ga’al Yisrael together with the chazzan and not saying amen to the beracha. Based on the records of community minhag books and the halachic recommendations of later authorities, it appears that this was the custom followed in most Ashkenazi kehillos. The chazzan recited Ga’al Yisrael aloud, and the community recited it softly along with him.

However, this approach does not resolve all conflict, since, according to the Rama, in this situation one should recite amen after Ga’al Yisrael.

Start Early!

Another suggestion is mentioned, which appears to resolve all difficulty. The Levushei Serad suggests beginning saying Hashem sefasei tiftach just a little bit before the chazzan completes the beracha Ga’al Yisrael. Since this is considered having already started Shemoneh esrei, one may no longer answer amen according to all opinions, thus avoiding being caught in a dispute, and one will begin the Shemoneh esrei together with the tzibur.

Today, I have noticed that many shullen follow a fairly new method of avoiding the shaylah by having the chazzan complete the beracha of Ga’al Yisrael silently, so that no one can answer amen to his beracha. Although I have occasionally heard of prominent talmidei chachamim who advocate this position (see, for example, Yesodei Yeshurun, Volume I page 284), one should be aware that several renowned gedolei Yisrael have strongly contested this practice, including Rav Elyashiv zt”l, and Rav Henkin zt"l (Hapardes, Tishrei 5730). In addition, I am personally unaware of a single community that did not have the minhag that the chazzan recite the ending of the beracha Ga’al Yisrael aloud. Proof that this was a universal custom can be rallied from the fact that during the entire discussion as to what to do, none of the earlier authorities mention the option that the chazzan close the beracha Ga’al Yisrael inaudibly.

Of course, the question is: why is this option ignored? Why not have the chazzan close the beracha in such a soft voice that no one is placed in the halachic predicament whether to answer amen or not?

The answer lies, I believe, in the words of the Rambam, who says explicitly that the chazzan recites the words Ga’al Yisrael aloud. The Rambam explains that the requirement of having a chazzan includes reciting the entire birchos keriyas shema aloud. Initially, this was so that the chazzan could be motzi those who could not daven on their own. Although today most people use siddurim and thereby fulfill their own mitzvah, the institution of the chazzan and his requirements still remain.

Some may take issue and contend that according to the Rambam’s position, the chazzan recites every word of the birchos keriyas shema, which reflects Sephardic practice to this day, whereas Ashkenazi practice is that the chazzan says aloud only the end of the beracha. The contention, then, is that Sephardim rule that the chazzan’s responsibility is to recite the full berachos, but Ashkenazim do not require this. However, the universal custom demonstrates that the Ashkenazi custom still requires the chazzan to close the beracha in way that the individual could at least hear the end of the beracha. Even if the individual does not fulfill his halachic responsibility this way, it would still seem that some measure of birkas keriyas shema is accomplished this way, and this was included in the takanah.

Those who advocate that the chazzan recite the closing of Ga’al Yisrael softly contend that there is no such takanah.

At this point, we can now address the other questions that I raised above:

“I have noticed a recent trend that the chazzan recites the beracha of Ga’al Yisrael very softly, and some members of the tzibur recite the beracha aloud with him. Is this a correct procedure?”

“I see that in some minyanim the chazzan says the words Ga’al Yisrael inaudibly, and in others he says it loud enough for people to hear. Which is the correct approach?”

Answer:

I prefer that the chazzan recite the words Ga’al Yisrael aloud, and the tzibur recite the words quietly either along with the chazzan or just ahead of the chazzan and begin the verse Hashem sefasei tiftach while the chazzan says the words Ga’al Yisrael. There is no reason for the tzibur to close the beracha Ga’al Yisrael aloud, since this simply creates a shaylah for those hearing their beracha and it is not part of the takanas chachamim.

Conclusion

Chazal emphasize that one should not interrupt between reciting the words Ga’al Yisrael that close the birchos keriyas shema and beginning the Shemoneh esrei. Only by remembering the unique redemption of our forefathers and our identification with their travails can we proceed to pray to Hashem.

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