Is This the Right Purim?

Question #1: Four Purims!

Could someone observe Purim four times in one year?

Question #2: Which Bar Mitzvah Day?

“My son, whose thirteenth birthday was on the fourteenth of Adar Rishon, wants to know why his bar mitzvah day was not Purim.”

Question #3: Mistaken Parshah

If a community mistakenly read one of the four parshi’os in Adar Rishon, must they read it again in Adar Sheini?

Introduction:

The Mishnah (Megillah 29a) teaches: “Rosh Chodesh Adar that falls on Shabbos, we read (for its maftir) Parshas Shekalim. If it falls during the week, we read this maftir the Shabbos before. We skip the next Shabbos (meaning that we do not read a special maftir). The second Shabbos after Shekalim,we read Parshas Zachor; the third, Parshas Parah Adumah; the fourth, Hachodesh Hazeh Lachem; and the fifth, we return to the regular order.” This Mishnah teaches about the four special readings, called the Arba Parshi’os, that we read for maftir during or near the month of Adar.

In a leap year, when there are two months of Adar, we observe the special laws of the month of Adar, including Purim, Taanis Esther and the Arba Parshi’os, in the second Adar. What many do not realize is that there is actually a dispute among the tanna’im, the Torah scholars of the era of the Mishnah, concerning in which Adar one should observe the special mitzvos of Adar.

The Gemara (Megillah 6b) records three opinions how we should observe these events. An anonymous opinion (known as the Tanna Kamma) contends that the four parshi’os may be observed either in Adar Rishon or in Adar Sheini, but Purim can be observed only in Adar Sheini. Rabbi Eliezer, the son of Rabbi Yosi, contends that all observances, including Purim, may be observed in Adar Rishon. In his opinion, these mitzvos should preferably be observed in the first Adar, but if one failed to do so, one can still fulfill the mitzvah by performing them in the second Adar. Rabbi Shimon ben Gamliel contends that all the mitzvos can be observed only in Adar Sheini.

Sanhedrin’s calendar

This dispute becomes even more interesting after we understand some additional historical background. One of the 613 mitzvos of the Torah is the establishment of a Jewish calendar that includes occasional leap years that are thirteen months long. The requirement of adding this extra month is so that Pesach always falls in the spring and Sukkos in the autumn (in the northern hemisphere). The preferred way to establish this calendar is through determination of the Sanhedrin in Eretz Yisroel. For thousands of years, a special court of seven judges was created each year to decide if there is a need to add an extra month. The judges were chosen by the nasi, the head of the Sanhedrin.  We hope and pray that this system will be re-implemented soon, when Moshiach arrives.

In the era when the Sanhedrin and its special committee determined whether to create a leap year, many considerations were included in the decision. Among the factors evaluated were not only astronomical and weather information, but also what year it was in the shemittah cycle, what was the condition of the roads, whether people had left Bavel early enough to arrive in Yerushalayim for Pesach, whether enough lambs would be available for korban Pesach and what was the condition of the ovens used to roast the korban Pesach.

The special court began meeting any time after Rosh Hashanah, and the deliberations regarding whether to add an extra month could continue until the last day of Adar of the year involved. This means that they could decide to make it into a leap year even after Purim had already been observed!

Rosh Chodesh Mussaf

By the way, a practice of ours results from the timetable in which the Sanhedrin was allowed to declare a leap year – after Rosh Hashanah and before Rosh Chodesh Nissan. During Musaf on Rosh Chodesh, we close the middle brocha with a prayer for twelve blessings to occur in the coming month, and, in a leap year, we add a thirteenth blessing to this prayer. Thus, the number of blessings mentioned in this brocha corresponds with the number of months that the specific year contains. However, most customs add the thirteenth blessing only from the months of Marcheshvan until and including the months of Adar (both of them), but do not recite this thirteenth blessing during the rest of the year. Why don’t we recite this additional blessing between Nissan and Elul?

Based on our knowledge of when the Sanhedrin could declare a leap year, we can explain why the additional blessing is omitted between Nissan and Elul. At the time that the calendar was created by the Sanhedrin, the decision whether to add a month to the year was never made before Rosh Hashanah, and, therefore, between Nissan and Elul one never knew if the coming year was a leap year or not. Therefore, at that time, adding an additional blessing in that part of the year would be inappropriate, not only when the Sanhedrin is making that determination, but even today, when, as we will soon explain, the cycle of leap years is predetermined.

Sanhedrin and the calendar printers

When the calendar was decided by the Sanhedrin, printers would be unable to print a calendar in advance and, on Purim, housewives might be uncertain whether they have four weeks in which to prepare for Pesach, or eight, since the Sanhedrin may not yet have decided whether to add an extra Adar. As we noted above, this decision could be reached as late as the last day of Adar, some fifteen days after Purim.

The contemporary calendar

Unfortunately, we no longer have a Sanhedrin to establish our calendar. Instead, we use the calendar established by Hillel Hanasi, during the time of the Gemara. (One should be careful not to confuse Hillel Hanasi, who was the great-grandson of Rabbi Yehudah Hanasi, with their very illustrious and more famous ancestor, Hillel, who is often called Hillel Hazakein.) Hillel Hanasi was the last head of a Sanhedrin in Eretz Yisroel before the Roman persecution made it impossible for the Sanhedrin to continue functioning. Hillel Hanasi created the calendar we currently use, which has, among its features, a regular pattern of seven leap years and twelve common years in a nineteen-year cycle. Hillel established a system whereby the 3rd, 6th, 8th, 11th, 14th, 17th and 19th years are leap years in which we add the additional Adar.

In which Adar is Purim?

We mentioned above the three-way dispute concerning when we observe Purim and the four parshi’os in a leap year. According to Rabbi Eliezer berabbi Yosi, the unique mitzvos of Adar, that is, the observances of the four parshi’os, Taanis Esther and Purim, should all be observed in the first Adar. However, should one fail to observe them then, one may observe them in the second Adar. According to the Tanna Kamma, the four parshi’os may be observed in either Adar Rishon or Adar Sheini, but Purim can be observed only in Adar Sheini. Rabbi Shimon ben Gamliel contends that all the mitzvos can be observed only in Adar Sheini.

Basis of the dispute

What are the reasons behind the dispute?

The Gemara explains that Rabbi Eliezer berabbi Yosi holds that all the mitzvos should be kept in Adar Rishon, because of the principle called ein ma’avirin al hamitzvos, the opportunity to observe a mitzvah should not be allowed to pass. Since, in Rabbi Eliezer berabbi Yosi’s opinion, one may observe these mitzvos in either Adar, one should fulfill them at the first opportunity and not wait until the second Adar.

Ein ma’avirin al hamitzvos

The law of ein ma’avirin al hamitzvos is referred to in several places, and, according to Rashi and the Mechilta (to Shemos 12:17), this requirement is derived from the Torah. When the Torah states, Ushemartem es hamatzos, and you shall guard the matzos, (Shemos 12:17), meaning to make sure that one’s matzos do not become chometz, the word matzos is understood hermeneutically to refer to all mitzvos. This renders the command of the Torah to mean that you should “watch” for the mitzvos, that is, wait eagerly to perform them. As explained by the Mechilta, this means that when one has an opportunity to fulfill a mitzvah one should not tarry, but should fulfill it as soon as one can.

Is ein ma’avirin al hamitzvos a Torah requirement?

Since Rashi and the Mechilta cite a verse as the source for the law of ein ma’avarin al hamitzvos, should we assume that this is a Torah requirement? This is indeed the position of Tosafos (Yoma 33a s.v. ein) and some other authorities (Nishmas Odom 13:2; see also Shu”t Divrei Malkiel, Orach Chayim #16). However, there are authorities who contend that ein ma’avirin al hamitzvos is required only miderabbanan, and the verse quoted is what is called in halachic terminology an asmachta, a Scriptural foundation or hint for a rabbinic law (Shu”t Radbaz #529).

Other examples of ein ma’avirin al hamitzvos

Here are some other examples of the principle of ein ma’avirin al hamitzvos.

When donning tefillin, one should be careful not to touch the shel rosh before he touches the shel yad. According to Tosafos (Yoma 33b, s. v. avurei), if he touches his shel rosh first, he will be forced to wait to put it on until after his shel yad, because the Torah implies that one should not don the shel rosh until he is already wearing the shel yad. This will constitute a violation of ein ma’avirin al hamitzvos, because he sets aside the shel rosh and does not put it on immediately.

Similarly, because of the law of ein ma’avirin al hamitzvos, one who touched his tefillin before his talis must put the tefillin on first.

Here is an unusual application of the principle of ein ma’avirin al hamitzvos. Someone who is imprisoned, and cannot fulfill many mitzvos, such as kerias haTorah, tefillah betzibur, shofar blowing, and hearing Megillah while he is incarcerated, is provided the opportunity for one furlough. When should he use his furlough? One early authority was uncertain whether he should request to get out for Yom Kippur, because of the sanctity of the day, or whether he should use it for Purim, since the mitzvah of pirsumei nisa accomplished by hearing Megillah is something that cannot be accomplished at any other time.

The Radbaz (Shu”t Haradbaz #1087) takes issue with these considerations, contending that whatever mitzvah he can observe first should be the one for which he takes his furlough, because of the principle of ein ma’avirin al hamitzvos. While his incarcertation makes him unable to perform many mitzvos, once he has been granted a furlough, he now has an opportunity to perform a mitzvah, and not taking advantage of that constitutes forgoing its observance!

Rabbi Shimon ben Gamliel

Having explained the reason why Rabbi Eliezer berabbi Yosi contends that one should read Megillah and the four parshi’os in Adar Rishon, the question is why does Rabbi Shimon ben Gamliel rule that one must wait until Adar Sheini to observe these mitzvos?

The Gemara presents two approaches to explain Rabbi Shimon ben Gamliel’s opinion. Rabbi Tevi maintains that since the celebration of Purim is to thank Hashem for redeeming us, we should observe these mitzvos in the Adar that is closer to the month of Nissan, when we celebrate another redemption, that of the Exodus from Egypt.

Rabbi Elazar explains Rabbi Shimon ben Gamliel’s opinion in a different way, deriving from a verse in Megillas Esther that, when there are two months of Adar, we should celebrate Purim and the other events in the second Adar.

Four Purims?

At this point, we can address one of the questions I raised at the very beginning of this article: Could someone observe Purim four times in one year?

I mentioned above that, in the era that the Sanhedrin establishes whether the year is a leap year or not, it could happen that a leap year is declared after Purim, but before the month of Adar has ended. This means that, in what appeared to be a common year, the beis din decided to declare, towards the end of the month of Adar, that they would add an extra month. In this scenario, Purim was already observed, yet now the Sanhedrin declared that there would be a second Adar. Does everyone need to observe Purim a second time?

As I explained above, according to Rabbi Eliezer berabbi Yosi, the addition of the second Adar does not affect the observances of the four parshi’os, Taanis Esther and Purim, since they are all kept in the first Adar. Regardless as to when the Sanhedrin decided to add an extra Adar, these mitzvos are performed in the first Adar.

According to the Tanna Kamma, the four parshi’os may be observed either in Adar Rishon or in Adar Sheini, but Purim can be observed only in Adar Sheini. This would mean that when the beis din decided prior to Adar to create a leap year, the mitzvos should all be observed in Adar Sheini. If the beis din did not decide until some time in Adar, whichever of the four parshi’os had been read already did not need to be repeated. However, if they decided to add an extra month after Purim had been observed, everyone is required to observe Purim for a second time in the second Adar.

Rabbi Shimon ben Gamliel contends that all the mitzvos can be observed only in Adar Sheini. In his opinion, if beis din decided to add an extra month at the end of Adar, then the four parshi’os and all of the observances of Purim must be repeated.

How do we rule?

The Gemara concludes that the halachah follows Rabbi Shimon ben Gamliel. For this reason, even though most tanna’im contend that a community that read the four parshi’os in Adar Rishon is not required to repeat them in Adar Sheini, the halachah is that they are required to do so. This ruling is followed by the Rif, the Rosh, the Rambam, the Tur, the Shulchan Aruch and all later halachic authorities.

Two or four?

We now know how one might end up observing Purim in both months of Adar; but how does one end up keeping Purim four times in one year?The answer to this question, also, requires a small introduction. As we know from the Megillah, the “open cities,” meaning places other than a city or town that were walled at the time that Yehoshua conquered Eretz Yisroel, observe the laws of Purim on the fourteenth of Adar, whereas the walled cities observe Purim on the fifteenth. Now, there are places in which it is uncertain whether Purim should be observed on the fourteenth of Adar, like the “open cities,” or the fifteenth, like the walled cities. For example, the Gemara (Megillah 5b) recounts that in Teverya, they read the Megillah on both the fourteenth and the fifteenth. Teverya was walled on three sides, and the Sea of Kineret (also known as the Sea of Galilee) served as its “wall” on the fourth side. It was uncertain whether this conformation qualifies it as a walled city or a non-walled one.

Now think: What would happen in Teverya in a year when the beis din decided at the end of Adar to create a leap year? They would end up, according to the Tanna Kamma and Rabbi Shimon ben Gamliel, observing Purim four times.

Which bar mitzvah day?

At this point, let us answer our remaining questions: My son, whose thirteenth birthday was on the fourteenth of Adar Rishon, wants to know why his bar mitzvah day was not Purim.

The answer is that he would be correct if we ruled according to Rabbi Eliezer berabbi Yosi. However, since the Gemara concludes that the halachah follows the disputing opinion of Rabbi Shimon ben Gamliel, we celebrate Purim in the second Adar. As I mentioned above, the Gemara cites two opinions why Rabbi Shimon ben Gamliel rules that we observe Purim in Adar Sheini. According to one opinion, this is because the redemption that we celebrate on Purim should be observed as close to the celebration of the redemption of Pesach as possible. According to the other opinion mentioned by the Gemara, there is a special hermeneutic derivation that teaches us this halachah.

Mistaken parshah

If a community mistakenly read one of the four parshi’os in Adar Rishon, must they read it again in Adar Sheini?

Although according to both the Tanna Kamma and Rabbi Eliezer berabbi Yosi, they would not be required to do so, the halachah follows Rabbi Shimon ben Gamliel, who requires them to read it again.

In conclusion

We see how important it is not to delay performing a mitzvah. Certainly, our attitude towards the performance of all mitzvos should be one of enthusiasm – we are overjoyed at the opportunity to fulfill Hashem‘s commandments.

Using a Thermos on Shabbos

Since most of the laws of Shabbos are derived from the construction of the Mishkan, it is an appropriate week to discuss:

Question #1: Using a Thermos

“May I pour hot water from an urn or a kettle that is on the blech into a thermos on Shabbos?”

Question #2: Wrapping a Thermos

“May I wrap a thermos bottle, containing hot water, with towels on Shabbos to keep the water hot?”

Introduction:

Explaining the background behind both of these questions involves an in-depth analysis of the rabbinic injunctions instituted by our Sages to safeguard the Shabbos. The laws of Shabbos include many Torah prohibitions, such as not to cook or stir a fire, and also many rabbinic prohibitions to guarantee that people not violate Torah laws. We will begin our explanation of this topic with an extensive glossary, but bear in mind that this is a brief overview of these concepts and not to be used for practical halacha.

Shehiyah – leaving food on the fire

Chazal prohibited shehiyah, which is leaving food on a fire or in an oven when Shabbos begins, because of concern that someone might mistakenly stir the coals. However, they permitted leaving food this way when one fulfills any one of the following three requirements:

1. Covering the fire

One may leave food cooking or warming as Shabbos begins, if he covers the fire in a way that lessens its heat and also reminds one not to stir the fire on Shabbos (see Shabbos 36b with Rashi and Ran). The most common method used today to accomplish this is to place a blech on top of the stove. It is preferable that the blech also cover the dials, to avoid inadvertently adjusting the flame (Shu”t Igros Moshe, Orach Chayim 1:93).

2. Adding raw meat

A second method to permit cooking or warming food when Shabbos begins is to place raw meat into the pot immediately before Shabbos (Shabbos 18b). By doing so, one knows that the food will certainly not be ready to eat for the Friday night meal, and it will be ready for the Shabbos day meal, so there is no need to be concerned about turning up the fire (Rashi ad locum).

Several late poskim are reluctant to rely on this heter today, for reasons beyond the scope of this article (Chazon Ish, Orach Chayim 37:22; Teshuvos Ivra in Kisvei Hagaon Rav Yosef Eliyahu Henkin, Volume 2, page 19).

3. Cooked before Shabbos

A third approach is to have the food cooked before Shabbos begins. According to Ashkenazic practice, one may leave the food even on an open fire, as long as it is considered edible when Shabbos begins. Sefardim follow a more stringent approach, allowing this heter only if the food is fully cooked and only for heating water and similar foods that do not improve by remaining longer on the fire. To prepare chamin shel Shabbat, what Ashkenazim call cholent, a Sefardi must rely on one of the other two heterim mentioned above, whereas an Ashkenazi may leave his food even on an open flame, if it is edible when Shabbos begins.

Chazarah – warming food on Shabbos

A second prohibition that Chazal instituted is called chazarah, which includes placing food, even if fully cooked, on a heat source on Shabbos to warm it up. The details of this prohibition are complicated, but for our purposes we will mention that it is permitted to return a pot or food to the fire on Shabbos, even if the food is fully cooked, only in two general ways:

A. The food is still hot, one removed it from the blech intending to return it to remain hot or warm, provided he kept his hand on the handle of  the pot the entire time that it was off the fire. Many Sefardim are lenient, maintaining that one does not need to observe the last two requirements, provided the pot of food was not placed on the ground; Ashkenazim can be lenient about returning the food to the fire, if someone mistakenly forgot these two requirements. Concerning how hot the food must be, Sefardim are stricter than Ashkenazim, contending that the food must be too hot to hold directly in one’s hand in order to permit returning. Ashkenazim rule that one may return the food as long as it is still warm enough to eat.

B. Under certain circumstances, Chazal permitted warming dry food on Shabbos in a way that is different from the way one normally cooks food. For example: One may place a fully-baked kugel on top of a pot that is on the fire.

Hatmanah – insulating

A third prohibition that Chazal instituted, one very relevant to our topic, is called hatmanah, wrapping or insulating food to keep it hot. This includes two different sets of rules – one for someone who wraps the food before Shabbos and one for someone who wants to wrap his food on Shabbos.

Before Shabbos

Chazal prohibited hatmanah before Shabbos in a way that increases the heat, such as with hot ash, fertilizer, or the remaining crushed-out pulp of olives or sesame seeds. These materials are called davar hamosif hevel, items that increase heat. This is prohibited because of a concern that someone might mistakenly stir coals on Shabbos (Shabbos 34b). However, it is permitted to insulate foods before Shabbos with materials that do not increase heat, called davar she’eino mosif hevel, such as clothing, blankets, towels, or sawdust. (In the case of sawdust, one may also have to deal with the laws of muktzah, but that is not today’s subject.)

Partial hatmanah before Shabbos

The Rishonim dispute what constitutes hatmanah. Does leaving food on a fire to continue warming when Shabbos arrives constitute hatmanah? Although this does not fulfill our usual definition of insulating, it warms the food on Shabbos by maintaining physical contact with a source of heat. According to many Rishonim, placing food so that it touches the fire is included in the prohibition of hatmanah (Ba’al Hamaor and Ran, beginning of Shabbos, Chapter 3). In their opinion, if one heats food on a wood fire and intends to leave the food that way into Shabbos, one must place the food atop a tripod or other device that raises it above the burning wood and coals. Placing the pot of food on the tripod avoids the prohibition of hatmanah (but may still involve the prohibition of shehiyah), since the food is no longer touching any heat source. Failing to distance the food from direct contact to the source of heat violates the prohibition of hatmanah, and the food may not be eaten on Shabbos.

According to other Rishonim, hatmanah is prohibited only when the pot of food is covered completely or mostly (see Tosafos, Shabbos 36b s.v. Lo; Sefer Hayashar, Cheilek Hachiddushim Chapter 235). The Shulchan Aruch (Orach Chayim 253:1) follows the first opinion that one may not have food lying directly on a flame or hot coals when Shabbos begins. Thus, Sefardim, who follow the Shulchan Aruch’s decisions, may not leave food for Shabbos touching the heat directly, even if it is otherwise exposed to the air. The Rema permits partial hatmanah on Shabbos, allowing placing a pot into warm coals before Shabbos, as long as the lid is not covered by the coals.

Thus, people on a camping trip over Shabbos who choose to keep their Friday night dinner warm by leaving it on their campfire need to know if they are Ashkenazim or Sefardim. If they are Ashkenazim, they may leave their food on the fire when Shabbos starts, as long as it is already cooked to the extent that it is edible. If they are Sefardim, they must have the food elevated above the fire when Shabbos begins, and, in addition, they can do this only with food that is fully cooked and does not improve when it stews longer.

Lid is not covered

If one is an Ashkenazi, how much of the pot may be covered without violating the laws of hatmanah? The Shulchan Aruch Harav (Kuntrus Acharon 257:3) contends that as long as the pot lid remains uncovered, one may cover all the sides of the pot. He permits placing a bottle into a pot of hot water before Shabbos, provided that the cover of the bottle is above the water level.

The Pri Megadim (Mishbetzos Zahav, Orach Chayim 259:3) discusses whether it is sufficient that the top of the pot be exposed, or whether a larger area of the pot must be exposed. Based on a ruling of the Taz (Orach Chayim 258:1), the Pri Megadim contends that one must leave most of the pot exposed to avoid violating hatmanah. (We should note that the Taz in Orach Chayim 253:14 appears to hold like the Shulchan Aruch Harav.)

This dispute would affect to what extent one may drape towels over an urn either before or on Shabbos. According to the Pri Megadim, one may do this only if the sides of the urn are predominantly exposed. According to the Shulchan Aruch Harav, it is sufficient if the sides are partially exposed.

Shabbos sleeve

I once saw a woman prepare her electric hot water urn by draping a cloth sleeve made especially for the urn and embroidered with the words “Lichvod Shabbos.” I asked her why she did that and she said, “It keeps it hotter.” When I told her she can’t use it because of hatmanah, she was incredulous, and responded, “but it says ‘lichvod Shabbos!’” I have no idea who produced this sleeve, but there was no hechsher embossed on it. Unfortunately, the label on the cloth does not permit its use.

By the way, there is a simple solution for this problem. If some space is left between the side of the urn and the towels or sleeve, this is not considered hatmanah and is permitted (Chayei Odom, Hilchos Shabbos 2:5). One may place a board or other item on top of the urn that is wider that the urn and drape the towel over the item. In this instance, one may leave the towel there all of Shabbos, and one may even place the towel there on Shabbos itself. Since the towel is not resting flush against the urn, this is not included in the prohibition of hatmanah.

On Shabbos

On Shabbos itself, Chazal prohibited covering the food, even with something that does not increase heat (Shabbos 34a). Therefore, one may not take a cholent pot or kettle and wrap it in towels on Shabbos to keep it hot. The reason for this prohibition is concern that someone insulating his food will discover that it is colder than he wants and will mistakenly heat it (Shabbos 34a).

Kli rishon and sheini

The next part of our glossary involves explaining the terms kli rishon, kli sheini and yad soledes bo.

A kli rishon is a pot, pan or other vessel containing food that was heated on top of a stove, inside an oven or any other way directly from a source of heat. A kli sheini is the platter or bowl into which food was poured from a kli rishon.

Here is a halachic example of the distinction between kli rishon and kli sheini. The Mishnah (Shabbos 42a) teaches that if a pan or pot of food was removed from the fire on Shabbos, one may not add spices into that pot, because this constitutes bishul. However, one may add spices to a platter which contains the food after it has been poured out of the original pot or pan. The second case is a kli sheini, meaning that the platter itself was never on the fire.

Why is there a halachic difference between a kli rishon and a kli sheini? Tosafos (Shabbos 40b s.v. Ushma) explains that when the vessel itself is on the fire or inside the oven, the heat of the food is sustained by the hot walls of the vessel, and that is why bishul occurs. However, when the container itself was never directly warmed, the walls of the vessel diminish the heat of the food placed therein. As a result, the food will not cook from the heat of the kli sheini walls. In other words, cooking requires not only sufficient heat, but also that the walls of the pot or vessel maintain that heat. Therefore, cooking occurs in a kli rishon even after it was removed from the fire, but, under most circumstances, not in a kli sheini.

Yad soledes bo

Whenever halacha discusses that something is hot, it means that it is at least yad soledes bo, a term meaning that it is hot enough that a person pulls his hand back instinctively when he touches it. There is much dispute among the halachic authorities as to how we measure this in degrees, which is a subtopic that we will leave for a different time.

Using a thermos

Now that we have completed our very extensive introduction, we can address the questions that began this article:

“May I pour hot water from an urn or a kettle that is on the blech into a thermos on Shabbos?”

“May I wrap a thermos bottle, containing hot water, with towels on Shabbos to keep the water hot?”

The Gemara (Shabbos 51a) quotes a Tosefta (see Shabbos 4:12) that provides the prologue to our question: “Rabban Shimon ben Gamliel says that they prohibited (insulating on Shabbos) only if the food is in the pot in which it was originally heated up, but if it was moved to a different pot, one may insulate it on Shabbos.” The Gemara explains that the prohibition to insulate food on Shabbos is out of concern that someone might increase the heat by stirring coals (see Shabbos 34a). Rashi explains that the reason Rabban Shimon ben Gamliel permitted wrapping up the pot of food in this case is because the person is actively trying to cool off the water by pouring it into a cooler vessel. However a thermos bottle that is being used to keep things hot may be different.

On the other hand, the Rambam (Hilchos Shabbos 4:5) cites this law as follows: “If you moved the cooked food or the hot water from one vessel to another, one is permitted to insulate the second vessel on Shabbos, provided one uses material that does not increase heat… because they forbade insulating food on Shabbos only in a kli rishon, in which the food was originally cooked, but once it was moved from that vessel, it is permitted.” Clearly, the Rambam understands that there was no decree prohibiting hatmanah in a kli sheini on Shabbos with devorim she’einam mosifim hevel. Following this logic, it would appear that one may pour hot water into a thermos bottle on Shabbos, even though one’s intent is to keep the water hot,since a thermos is only a kli sheini. Thus, whether one may pour hot water into a thermos on Shabbos may depend on this dispute between Rashi and the Rambam.

In general, halachic authorities rule according to the Rambam when he disputes with Rashi, both lechumrah and lekulah. The Birkei Yosef (Choshen Mishpat 25:31) explains the reason is because Rashi wrote his comments to explain the text of the Gemara, and it is possible that he might have reconsidered had he issued a final ruling.  Indeed, in this instance, several major authorities appear to rule according to the Rambam (Ran; Tur; Taz, Orach Chayim 257:5; see also Magen Avraham 252:13).

Notwithstanding the opinions of these authorities, Rav Moshe Feinstein writes that it is preferable to be machmir like Rashi (Shu”t Igros Moshe, Orach Chayim 1:95). Rav Moshe concludes, however, that, even according to Rashi, it is permitted to pour water into a thermos bottle on Shabbos, because of a different reason. The closing of a thermos bottle is not an act of hatmanah, but an act of closing the bottle. However, according to Rashi, it is certainly forbidden to wrap the thermos bottle with towels to keep it hot. According to Rambam, this should be permitted, because there is no hatmanah in a kli sheini.

In conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order that it be a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. Shabbos is a day on which we refrain from altering the world for our own purposes, and the goal of Shabbos is to allow Hashem’s rule to be the focus of creation, by refraining from our own creative acts (Shemos 20:11).

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 these prohibitions, created by Chazal to protect the Jewish people from major sins. Seeing how much attention the poskim apply to understanding the laws of Shabbos thoroughly should encourage us to make sure we know these laws well, in all their details.

Tidbits of Interest

Some Aspects of the Halachos of Ribbis

Question #1: Small Thanks

“May I give a small present of thanks to someone who helped me out with a loan?”

Question #2: Doing a chesed

“Can I violate ribbis by doing a chesed?”

Question #3: Lending my Credit Card

“How can you violate ribbis by letting someone use your credit card?”

There are a total of six different prohibitions that can be violated when creating and paying a loan in which there is interest. Someone who loans money for interest is in violation of the Torah’s prohibition, even before any interest is, indeed, charged or collected (see Bava Metzia 62a; Shu”t Mahar”a Sasson #162).

According to the Mishnah, not only do the borrower and the lender violate the prohibition against ribbis, but the witnesses to the loan, the co-signer on the loan and the scribe who writes up the loan document are also in violation of the prohibition (Bava Metzia 75b). Thus, anyone causing the loan to be finalized is in violation of this mitzvah. This would include someone who notarizes a loan document that includes a ribbis provision, and might even include a lawyer who draws up a document that includes provisions for ribbis (Bris Yehudah 1:6).

The halachos of ribbis are quite complex, and a review of some of the halachos is always in order. From my experience, even seasoned Torah scholars make mistakes about these halachos and may even have business activities that violate the prohibition of ribbis. What makes these matters even more regrettable is that virtually every one of these situations can be alleviated easily by usage of a heter iska, which will be explained later in this article.

Chazal were so concerned that someone would violate the prohibition of ribbis that they wanted the lender to gain no perceived advantages from the loan, even when the gains are completely of a non-monetary nature. Thus, the lender may not ask the borrower to do him a favor that he would not have asked had he not loaned him money (Tosafos, Bava Metzia 64b s.v. Avol). Similarly, the borrower may not invite the lender to his simcha, if he would not have invited him otherwise.  It is even prohibited for the borrower to thank the lender for the loan (Graz, Hilchos Ribbis #9).

Chazal also prohibited ribbis that occurs before or after the loan exists. For example, it is prohibited for the borrower to bring a small gift to the lender, as a token of thanks for the loan (Mishnah Bava Metzia 75b). This is prohibited, even after the loan has been paid off, and even many years later.

Ribbis Without a Loan

The halacha prohibits charging for the use of one’s money, even when a loan did not actually take place. Thus, a merchant may not add interest charges to a bill (sent to a Jew), because it is past due. He is permitted to bill for the actual expenses accrued due to his having had to send an additional bill, as well as any other collection costs he incurs. However, the merchant may not add service charges because he was forced to borrow money off his credit line to cover the shortfall.

The prohibition against charging for delay of payment also applies to acquisitions. Thus, a store may not charge one price for cash and a different price for credit or delayed payment.

The borrower may pay a co-signer to guarantee a gemach loan. In a situation where the borrower defaults and the co-signer has to pay off the loan, the co-signer may collect what he paid from the borrower (Taz to Yoreh Deah 170:3).

Neighborly Loans

When neighbors borrow small items such as flour, sugar, or eggs, a loan has taken place. They may not intentionally return more than was borrowed, which would be considered ribbis. However, if they are uncertain exactly how much flour or sugar they borrowed, they are permitted to return enough to be certain that they have definitely returned as much as they borrowed (see Bava Metzia 75a). One may return an item that is similar, but not identical, to what was borrowed, if the buyer and seller are not concerned about the difference. Thus, one who borrowed a loaf of bread of one brand need not be concerned whether the loaf of bread that he returns is the same brand or the identical size (Rema, Yoreh Deah 162:1). Similarly, one need not be concerned that the price may have fluctuated in the interim (Shaar HaTziyun 450:4). .

Ribbis Without any Benefit to the Lender

The Torah prohibits ribbis if the borrower pays more than he borrowed, even when no benefit is gained by the lender.

An actual case will show us how people can be guilty of this violation without realizing it. Reuvain is involved in many chesed projects, including raising money for tzedakah. Yankel had an excellent business opportunity and asked Reuvain to help him finance his new endeavor, of course in a permitted fashion. Reuvain decided that he would rather utilize this opportunity for a different mitzvah. He tells Yankel, “Instead of becoming a partner in your business, I will lend you the money interest free, but I’d like to make a condition that some of the maaser from the profits goes to support a yeshiva.”

Reuvain assumes that by making the arrangements this way, he fulfills the mitzvah of lending someone money, which, indeed, is a big mitzvah of chesed, and, in addition, he will be causing someone else to give tzedakah, which is also a tremendous mitzvah. Unfortunately for both Reuvain and Yaakov, since giving the tzedakah was a condition of the loan, this arrangement incurs a Biblical prohibition of ribbis. Although the lender, Reuvain, does not gain from the loan, since a condition of the loan was that Yankel pay more money than he borrowed, this is considered a Torah violation of ribbis (Rema, Yoreh Deah 160:14). (In this instance, there would be no violation of ribbis if he asked Yankel as a favor to donate to the tzedakah cause. Alternatively, they could arrange some form of heter iska, as will be explained later.)

Borrowing Credit or Credit Cards

Here is another instance that occurs frequently, in which people wish to do a tremendous chesed but in reality they are involved in a serious infraction of ribbis. Mrs. Friedman and Mrs. Goldstein meet at a closeout sale where top quality mattresses are available at an unbelievable price. Members of Mrs. Friedman’s family need new mattresses, and she realizes that by purchasing them at the closeout prices she will be saving hundreds of dollars.

Unfortunately, Mrs. Friedman does not have the money to purchase the mattresses, nor does she have any credit cards at her disposal. As she is bemoaning the fact that she will have to forgo this opportunity to save so much money, Mrs. Goldstein, always eager to do a chesed, offers Mrs. Friedman to charge the mattresses on her credit card. A very grateful Mrs. Friedman gladly takes up the opportunity and purchases the mattresses. Her intention is to make the credit card payments accrued to Mrs. Goldstein’s card until she can pay off the balance and interest for the mattresses.

Without either lady realizing it, they have now created a major halachic problem. The credit card company did not lend the money to Mrs. Friedman, but to Mrs. Goldstein, whose name is on the card. For this reason, what has transpired here is that two loans have taken place, both with interest: one from the credit card company to Mrs. Goldstein, and a second from Mrs. Goldstein to Mrs. Friedman. If Mrs. Friedman makes payments directly to the credit card company, she will be repaying Mrs. Goldstein’s loan to the credit company and her own loan to Mrs. Goldstein simultaneously. Thus, she is now paying her loan to Mrs.Goldstein with interest and  both well-meaning ladies will have violated the laws against ribbis (Shulchan Aruch Yoreh Deah 168:17). The parties involved should immediately consult a halachic authority who understands the halachos of ribbis well, since there are several ways that the situation described above can be rectified. (The different ways to alleviate the problem might depend on the individual’s circumstances, and are beyond the scope and length of this article.)

A similar problem often happens in a business partnership, in which one partner has access to a credit line and borrows money from the credit line for the benefit of the business. Since the credit line is in his name and not that of the business, without realizing it, he has borrowed money from the bank and then loaned it to the business, in which he is only one partner. Thus, he is now considered to be charging his partners for interest on a loan he has made to them. Again, this problem can be alleviated with a heter iska.

What is a heter iska?

A heter iska is a halachically approved way of restructuring a loan or debt so that it is some form of business deal that is not a loan. There are numerous ways of making a heter iska, and, indeed, different situations call for different types of heter iska. It is important for everyone who is involved in any type of business dealings to understand the fundamental principle of every heter iska: That a heter iska restructures the loan so that it is an investment or acquisition, rather than a loan.

Borrowing from Jewish-owned banks

Many people borrow money from banks, mortgage companies, credit card companies (including stores), brokerages, and credit unions, without verifying whether they are owned by a Jewish controlling interest. Without using a heter iska, it is forbidden to borrow money with interest from any Jewish-owned business, even if it is incorporated. Although there are some poskim who permit lending money to a corporation without a heter iska, as will be explained later in this article, this author is unaware of any posek who permits borrowing from a Jewish-owned corporation, without a heter iska.

Corporations

Rav Moshe Feinstein ruled that it is permitted to lend money to a Jewish-owned corporation, without incurring a problem of ribbis. In Rav Moshe’s opinion, a loan must have an individual who is responsible to pay for it. When a corporation borrows, no individual is responsible to pay for the loan. Therefore, Rav Moshe contends that a loan to a corporation does not incur the prohibition of ribbis, provided that no individual personally guarantees the loan (Shu”t Igros Moshe, Yoreh Deah 2:63). It should be noted that many other poskim do not agree with this lenience of Rav Moshe, contending that there can be ribbis even when a corporation borrows money (see extensive discussion in Bris Yehudah pg. 138). One practical difference is that, according to Rav Moshe, it is permitted to have a savings account in a Jewish-owned bank without having a heter iska, whereas, according to the other opinions, it is forbidden. However, according to all opinions it is forbidden to borrow from a Jewish-owned bank, credit union or brokerage without a heter iska. Thus, one may not buy stocks on margin from a Jewish-owned brokerage without a heter iska.

Hashkafah of Ribbis

The mitzvah of Ribbis poses an interesting hashkafah question. Why does the Torah forbid making a profit from my money? The Torah encourages earning a livelihood, so what is wrong with earning a profit from lending out money?

Many answers are offered to this question. Kli Yakar presents the following approach: When a farmer plows and plants his field, he knows well that if it does not rain sufficiently or if a blight attacks his crop, he will have nothing to show for his efforts. Thus, even with all his hishtadlus, he knows that he must daven for Hashem to help his efforts. Similarly, a person who opens a business knows well that even with all his planning, his business may not be successful. Thus, he also knows that he must daven for Hashem to help his efforts. However, someone who makes his parnasah from lending out money seems to have his entire livelihood totally secure. He has no daily reminder forcing him to pray for his daily livelihood. For this reason, explains the Kli Yakar, Hashem did not want a person to make his livelihood this way. By banning this method of parnasah, the Torah forced a person to make parnasah in a way that he must be reminded daily of his need for Hashem’s help.

Carrying in Public and the Use of an Eruv II

Last week, I began discussing many of the background issues germane to whether one can erect an eruv to permit carrying in a city. We discovered that the Torah prohibits carrying an object from one’s house or any other enclosed area (halachically called a reshus hayachid), to an area available to the general public, a reshus harabim, or vice versa; or to carry an item four amos (about seven feet) or more within a reshus harabim. Even when there is no Torah prohibition involved in carrying the item, there may still be a rabbinic violation.

As we noted there, with reference to the melacha of carrying on Shabbos, the terms reshus hayachid and reshus harabim do not relate to the ownership of the respective areas, but are determined by the extent that the areas are enclosed and how they are used. A reshus hayachid could certainly be public property, and there are ways whereby an individual could own a reshus harabim. I also mentioned that the construction of an eruv consisting of poles and wire cannot permit carrying in an area that is prohibited min haTorah. In addition, we learned that a reshus harabim must meet very specific and complex requirements, including:

(A) It must be unroofed (Shabbos 5a).

(B) It must be meant for public use or thoroughfare (Shabbos 6a).

(C) It must be at least sixteen amos (about twenty-eight feet) wide (Shabbos 99a).

(D) According to most authorities, it cannot be inside an enclosed area (cf., however, Be’er Heiteiv 345:7, quoting Rashba; and Baal HaMaor, Eruvin 22a,quoting Rabbeinu Efrayim). The exact definition of an “enclosed area” is the subject of a major dispute that I will discuss.

(E) According to many authorities, it must be used by at least 600,000 people daily (Rashi, Eruvin 59a, but see Rashi ad loc. 6a where he requires only that the city has this many residents). This is derived from the Torah’s description of carrying into the encampment in the desert, which we know was populated by 600,000 people.

(F) Many authorities require that it be a through street, or a gathering area that connects to a through street (Rashi, Eruvin 6a).

Some authorities add additional requirements.

We explained that an area that does not meet the Torah’s definition of a reshus harabim, yet is not enclosed, is called a karmelis. One may not carry into, from or within a karmelis, following the same basic rules that prohibit carrying into a reshus harabim. However, since the prohibition not to carry in a karmelis is rabbinic in origin, Chazal allowed a more lenient method of “enclosing” it.

At this point, let us continue our discussion.

600,000 People

An early dispute among Rishonim was whether one of the requirements of a reshus harabim is that it be accessible to 600,000 people, the number of male Jews over twenty the Torah tells us left Egypt (see Tosafos, Eruvin 6a s.v. keitzad). According to Rashi and others who follow this approach, one may enclose any metropolis with a population smaller than 600,000 with tzuros hapesach to permit carrying. (In some places Rashi describes the city as having 600,000 residents, and in others describes it as having 600,000 people using the area constantly. The exact definition is the subject of much literature; see, for example, Shu”t Mishkenos Yaakov #120 s.v. hinei harishon; and Shu”t Igros Moshe, Orach Chayim 1:139:5.)

However, other early authorities contend that an area with less than 600,000 people still qualifies as a reshus harabim, if it fulfills the other requirements that I listed above. In their opinion, such an area cannot be enclosed with tzuros hapesach. Although many authorities hold this way, the accepted practice in Ashkenazic communities was to follow the lenient interpretation and construct eruvin in places with less than 600,000 people (see, for example, Aruch Hashulchan 345:18). Nevertheless, the Mishnah Berurah discourages carrying in such an eruv, since many Rishonim hold that an eruv in such a place is not acceptable (364:8; Bi’ur Halacha to 345:7 and to 364:2). There are different opinions as to whether Sefardim may follow this leniency, although the prevalent practice today is for them to be lenient.

Modern City

Most large, metropolitan areas today are populated by more than 600,000 people. Some authorities still define many of our metropolitan areas as a karmelis, based on the following definition: Any area less concentrated than the Jews’ encampment in the desert is considered a karmelis. Since this encampment covered approximately 50 square miles (or approximately 130 sq km), these authorities permit an eruv in any place where the population density is less than 600,000 people per 50 square miles (Shu”t Igros Moshe, Orach Chayim 4:87). However, other authorities consider any metropolitan area or megalopolis containing 600,000 people to be a reshus harabim, regardless of its population density. Does this mean that there is no heter with which to construct an eruv in a large city? Indeed, many authorities contend this (Shu”t Mishnas Rav Aharon 1:2).

A Large Breach

Nevertheless, the Chazon Ish presented a different approach to permit construction of an eruv in a large contemporary city. His approach requires an introduction.

In general, an area enclosed by three or four full walls cannot be a reshus harabim (Eruvin 22a). What is the halacha if each of the three sides of an area is enclosed for most of its length – however, there are large gaps in the middle of the enclosure? For example, if walls or buildings enclose most of an area – however, there are gaps in the middle of the area between the buildings, where streets cross the city blocks. Does the area in the middle, surrounded by buildings and other structures, still qualify as a reshus harabim, or has it lost this status, because it is mostly “enclosed”?

The basis for the question is the following: There is a general halachic principle that an area that is mostly enclosed is considered enclosed, even in its breached areas (Eruvin 5b, et al.). For example, a yard enclosed by hedges tall enough to qualify as halachicwalls may be considered enclosed, despite open areas between the hedges, since each side is predominantly enclosed by either hedges or a house.

On the other hand, a breach wider than ten amos (about 17 feet, or about 5 meters) invalidates the area from being considered enclosed. Therefore, one may not carry within a fenced-in area that has a 20-foot opening, without enclosing the opening in some way.

The issue that affects the modern city is the following: Granted that a large breach needs to be enclosed to permit carrying within the area, is this required min haTorah or only rabbinically? If one encloses a large area with walls that run for miles but have large gaps, is this area considered enclosed min haTorah on the basis of its walls, or is it considered open because of its gaps?

This question was debated by two great nineteenth-century authorities, Rav Efrayim Zalman Margoliyos of Brody, known as the Beis Efrayim, and Rav Yaakov of Karlin, the Mishkenos Yaakov. The Beis Efrayim contended that a breach invalidates an enclosure only because of a rabbinic prohibition and the area is considered enclosed min haTorah, whereas the Mishkenos Yaakov held that the breach renders the area as a reshus harabim min haTorah. The lengthy correspondence between these two authorities covers a host of other eruv-related issues (Shu”t Beis Efrayim, Orach Chayim # 25, 26; Shu”t Mishkenos Yaakov, Orach Chayim, #120- 122).

What difference does it make whether this area is considered open min haTorah or miderabbanan, since either way one must enclose the area?

The difference is highly significant. If we follow the lenient approach, then even if the area in the middle meets all the other requirements of a reshus harabim, the Beis Efrayim contends that it loses its status as a reshus harabim because of its surrounding walls, notwithstanding their large gaps – in which case it may be possible to construct an eruv.

On the other hand, the Mishkenos Yaakov contends that this area is considered a reshus harabim because of the gaps, and we ignore the walls. According to the Mishkenos Yaakov, it is impossible to construct an eruv around this area.

How one rules in this dispute between these two gedolim affects the issue of constructing an eruv in a contemporary city. Most modern cities contain city blocks that consist predominantly of large buildings with small areas between the buildings, and streets that are much narrower than the blocks. One can easily envision that both sides of the street are considered enclosed min haTorah, according to the Beis Efrayim’s analysis. This, itself, does not sufficiently enclose our area, because the street is open at both ends. However, at certain points of the city, the street dead-ends into a street that is predominantly enclosed with buildings, fences, walls or something else. The result is that this section of the city can now be considered min haTorah as enclosed on three sides by virtue of the parallel buildings along both sides of the street and those at its dead end. Since, according to the Beis Efrayim, this area now qualifies as an enclosed area min haTorah, he also holds that the entire area is considered a reshus hayachid min haTorah.

The Chazon Ish now notes the following: Once you have established that this part of the city qualifies as a reshus hayachid min haTorah, this area is now considered completely enclosed halachically. For this reason, other city blocks that are predominantly enclosed on both sides of the street that intersect with this first area are now also considered to be enclosed areas min haTorah. As a result, a large section of most cities is considered min haTorah enclosed on at least three sides, according to this calculation. Although one cannot carry in these areas miderabbanan because of the “breaches” in their “enclosures,” they are no longer reshus harabim min haTorah, and one can, therefore, enclose the entire area with tzuros hapesach (Chazon Ish, Orach Chayim 107:5). As a result of this calculation, the Chazon Ish concludes that many large cities today qualify as a karmelis, and therefore one may construct tzuros hapesach to permit carrying there.

However, other authorities reject this calculation for a variety of reasons. Some contend, as explained above, that the gaps between the buildings invalidate the enclosure, thus leaving the area a reshus harabim, which cannot be enclosed (Shu”t Mishkenos Yaakov; Shu”t Mishnas Rav Aharon).

In conclusion, we see that a dispute among poskim over eruvin is not a recent phenomena. In practice, what should an individual do? The solution proposed by Chazal for all such issues is “Aseh lecha rav, vehistaleik min hasafek – Choose someone to be your rav, and remove yourself from doubt.” Your rav, or your halachic authority, can guide you as to whether it is appropriate to carry within a certain eruv, after considering the halachic basis for the specific eruv’s construction, the level of eruv maintenance, and family factors. Never underestimate the psak and advice of your rav!

Carrying in Public and the Use of an Eruv

Question #1:

“Is it a mitzvah to build an eruv?”

Question #2: Public or private ownership?

“Can I own a reshus harabim?”

Question #3:

“How does a little bit of wire enclose an area? Isn’t this a legal fiction?”

Answer:

In this week’s parsha, the Torah recounts the story of the mann, including the unbecoming episode where some people attempted to gather it on Shabbos. In the words of the Torah:

And Moshe said, “Eat it [the mann that remained from Friday] today, for today is Shabbos to Hashem. Today you will not find it [the mann] in the field. Six days you shall gather it, and the Seventh Day is Shabbos – There will be none.”

And it was on the Seventh Day. Some of the people went out to gather, and they did not find any.

And Hashem said to Moshe: “For how long will you refuse to observe My commandments and My teachings? See, Hashem gave you the Shabbos. For this reason, He provides you with two-day supply of bread on the sixth day. On the Seventh Day, each person should remain where he is and not leave his place” (Shemos 16:25- 29).

Although the Torah’s words “each person should remain where he is and not leave his place” might be understood to mean that even leaving one’s home is forbidden, the context implies that one may not leave one’s home while carrying the tools needed to gather the mann (Tosafos, Eruvin 17b). The main prohibition taught here is to refrain from carrying an object from one’s house or any other enclosed area (halachically called reshus hayachid) to an area available to the general public, a reshus harabim. Chazal further explain that moving an item in any way from a reshus hayachid to a reshus harabim violates the Torah law, whether one throws it, places it, hands it to someone else, or transports it in any other way (Shabbos 2a, 96). Furthermore, we derive from other sources that one may also not transport an item from a reshus harabim to a reshus hayachid, nor may one transport it four amos (about seven feet) or more within a reshus harabim (Shabbos 96b; Tosafos, Shabbos 2a s.v. pashat). Thus, carrying into, out of, or within a reshus harabim violates a severe Torah prohibition. For the sake of convenience, I will refer to the transport of an item from one reshus to another or within a reshus harabim as “carrying,” regardless of the method of conveyance.

One should note that with reference to the melacha of carrying on Shabbos, the terms reshus hayachid and reshus harabim do not relate to the ownership of the respective areas, but are determined by the extent that the areas are enclosed and how they are used. A reshus hayachid could certainly be public property, and there are ways whereby an individual could own a reshus harabim.

Notwithstanding the Torah’s clear prohibition against carrying into, from or within a reshus harabim, we are all familiar with the concept of an eruv that permits carrying in areas that are otherwise prohibited. You might ask, how can poles and wires permit that which is otherwise prohibited min haTorah? As we will soon see, it cannot – and the basis for permitting the use of an eruv is far more complicated.

We are also aware of controversies in which one respected authority certifies a particular eruv, while others contend that it is invalid. This is by no means a recent development. We find extensive disputes among early authorities regarding whether one may construct an eruv in certain areas. Some consider it a mitzvah to construct an eruv there, whereas others contend that the very same “eruv” is causing people to sin.

An Old Machlokes

Here is one instance. In the thirteenth century, Rav Yaakov ben Rav Moshe of Alinsiya wrote a letter to the Rosh explaining why he forbade constructing an eruv in his town. In his response, the Rosh contended that Rav Yaakov’s concerns were groundless, and that he should immediately construct an eruv. Subsequent correspondence reveals that Rav Yaakov did not change his mind and still refused to erect an eruv in his town.

The Rosh severely rebuked Rav Yaakov for this recalcitrance, insisting that if Rav Yaakov persisted, he, the Rosh, would place Rav Yaakov in cherem! The Rosh further contended that Rav Yaakov had the status of a zakein mamrei, a Torah scholar who rules against the decision of the Sanhedrin, which in the time of the Beis HaMikdash constitutes a capital offense (Shu”t HaRosh 21:8). This episode demonstrates that heated disputes over eruvin are by no means recent phenomena.

Is It a Mitzvah?

Before I present the arguments for and against eruv manufacture in the modern world, we should note that all accept that it is a mitzvah to erect a kosher eruv when this is halachically and practically possible, as the following anecdote indicates.

Rabbah the son of Rav Chanan asked Abayei: “How can it be that an area in which reside two such great scholars [Abayei and Abayei’s Rebbe] is without an eruv?” Abayei answered: “What should we do? It is not respectful for my Master to be involved, I am too busy with my studies, and the rest of the people are not concerned” (Eruvin 68a).

The commentaries note that Abayei accepted the position presented by Rabbah that one should build an eruv. Abayei merely deflected the inquiry by pointing out that no one was readily available to attend to the eruv, and that its construction did not preempt other activities: Abayei’s commitment to Torah study and the kovod haTorah of his Rebbe. Indeed, halachic authorities derive from this Talmudic passage that it is a mitzvah to erect an eruv whenever it is halachically permitted (Tashbeitz 2:37, quoted verbatim by the Birkei Yosef, Orach Chayim 363:2). These rulings are echoed by such luminaries as the Chasam Sofer (Shu”t Orach Chayim #99), the Avnei Neizer (Shu”t Avnei Neizer, Orach Chayim #266:4), the Levush Mordechai (Shu”t Levush Mordechai, Orach Chayim #4) and Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 1:139:5 s.v. Velichora).

I mentioned before that the construction of an eruv of poles and wire cannot permit carrying that is prohibited min haTorah. If this is true, upon what basis do we permit the construction of an eruv? To answer this question, we need to understand that not every open area is a reshus harabim – quite the contrary, a reshus harabim must meet very specific and complex requirements, including:

(A) It must be unroofed (Shabbos 5a).

(B) It must be meant for public use or thoroughfare (Shabbos 6a).

(C) It must be at least sixteen amos (about twenty-eight feet) wide (Shabbos 99a).

(D) According to most authorities, it cannot be inside an enclosed area (cf., however, Be’er Heiteiv 345:7, quoting Rashba; and Baal HaMaor, Eruvin 22a,quoting Rabbeinu Efrayim). The exact definition of an “enclosed area” is the subject of a major dispute that I will discuss.

(E) According to many authorities, it must be used by at least 600,000 people daily (Rashi, Eruvin 59a, but see Rashi ad loc. 6a where he requires only that the city have this many residents). This is derived from the Torah’s description of carrying into the encampment in the Desert, which we know was populated by 600,000 people.

(F) Many authorities require that it be a through street, or a gathering area that connects to a through street (Rashi, Eruvin 6a).

Some authorities add additional requirements.

Any area that does not meet the Torah’s definition of a reshus harabim yet is not enclosed is called a karmelis. One may not carry into, from or within a karmelis, following the same basic rules that prohibit carrying into a reshus harabim. However, since the prohibition not to carry in a karmelis is only rabbinic in origin, Chazal allowed a more lenient method of “enclosing” it.

Can One “Enclose” a Reshus Harabim?

As I mentioned earlier, carrying within a true reshus harabim is prohibited min haTorah – for this reason, a standard eruv does not permit carrying in such an area (Eruvin 6b). Nevertheless, large doors that restrict public traffic transform the reshus harabim into an area that one can enclose with an eruv. According to some authorities, the existence of these doors and occasionally closing them is sufficient for the area to lose its reshus harabim status. (Rashi, Eruvin 6b; however, cf. Rabbeinu Efrayim, quoted by Baal HaMaor, Eruvin 22a).

Please Close the Door!

There are some frum neighborhoods in Eretz Yisroel where a thoroughfare to a neighborhood or town is closed on Shabbos with doors, in order to allow an eruv to be constructed around the area. However, this approach is not practical in most places where people desire to construct an eruv.

So what does one do if one cannot close the area with doors?

This depends on the following issue: Does the area that one wants to enclose meet the requirements of a reshus harabim min haTorah, or is it only a karmelis? If the area is a reshus harabim min haTorah and one cannot occasionally close the area with doors, then there is no way to permit carrying in this area. One should abandon the idea of constructing an eruv around this city or neighborhood (see Eruvin 6a; Shulchan Aruch Orach Chayim 364:2). Depending on the circumstances, one may still be able to enclose smaller areas within the city.

Tzuras Hapesach

However, if the area one wants to enclose does not qualify as a reshus harabim, then most authorities rule that one may enclose the area by using a tzuras hapesach (plural, tzuros hapesach) – literally, “the form of a doorway.”(However, note that Shu”t Mishkenos Yaakov #120 s.v. Amnom and Shu”t Mishnas Rav Aharon #6 s.v. Kuntrus Be’Inyanei Eruvin paragraph #2 both forbid using a tzuras hapesach in many places that other poskim permit.)

A tzuras hapesach consists of two vertical side posts and a horizontal “lintel” that passes directly over them, thus vaguely resembling a doorway. According to halacha, a tzuras hapesach successfully encloses a karmelis area, but it cannot permit carrying in a true reshus harabim (Eruvin 6a). Using tzuros hapesach is the least expensive and most discreet way to construct an eruv. In a future article, I hope to explain some common problems that can occur while constructing tzuros hapesach and how to avoid them, and some important disputes relating to their construction.

Let us review. Carrying can be permitted in a karmelis, but not a reshus harabim, by enclosing the area with tzuros hapesach. Therefore, a decisive factor as to whether one can construct an eruv is whether the area is halachically a karmelis or a reshus harabim. If the area qualifies as a karmelis, then an eruv consisting of tzuros hapesach permits one to carry; if it is a reshus harabim, then tzuros hapesach do not. The issues concerning the definition of a reshus harabim form the basis of most controversies as to whether a specific eruv is kosher or not.

I will continue this article next week, bli neder.

Is Papaya a Tree?

Although the month of Shvat just began, since I have planned a different, very exciting article for next week, we are going to discuss an aspect of Tu Bishvat this week. For those who want to read more about the holiday themes of Tu Bishvat, you can check on RabbiKaganoff.com under the search words orlah or fourth year.

Question #1: What bracha?

What bracha do I recite before I eat papaya?

Question #2: Orlah

Does the prohibition of orlah apply to papaya?

Question #3:

Are there any kashrus concerns germane to papain?

Introduction:

Whether a particular plant is defined halachically as a tree or not influences several areas of halacha, including:

1. What bracha one recites on its fruit.

2. What bracha one recites on its fragrance.

3. Whether the prohibition of orlah applies to its fruit.

4. How severe is the prohibition to destroy it (bal tashchis).

5. What are its laws concerning kelayim, shemittah, and ma’aser, all of which are relevant only in Eretz Yisrael.

What is a tree?

Although it is obvious that an oak tree is not a vegetable, the status of many species of Hashem’s botanical wonders is questionable: are they trees or are they not? The Random House dictionary I have on my desk defines a tree as, “a plant having a permanently woody main stem or trunk, ordinarily growing to a considerable height, and usually developing branches at some distance from the ground.” If we exclude the two qualifiers, “ordinarily” and “usually,” then this definition does not consider a grape vine to be a tree since it lacks height if not supported and does not develop branches some distance from the ground. Since we know that halacha considers grapes to be fruits of the tree, this definition will not suffice. On the other hand, if we broaden the definition of “tree” to include all plants that have a “permanently woody stem or trunk” we will not only include grape vines, but also probably include eggplant, pineapple, and lavender, all of which have woody stems. On the other hand, several plants, such as the date palm and papaya, fit the Random House definition as a tree and yet grow very differently from typical trees. Are all of these plants trees?

For halachic purposes, a better working definition is that a tree is a woody perennial plant that possesses a stem that remains from year to year and produces fruit. This definition is also not without its difficulties. In a different article, I discussed the status of eggplant, several varieties of berry including raspberry and cranberry, and several fragrant plants and flowers, which may or may not qualify as trees, depending on our definition. There are many times that we treat a plant lechumrah as a tree regarding the very stringent laws of orlah, although we will not treat it as a tree regarding many or all of the other halachos mentioned. In that article, I noted that the following characteristics might be qualifying factors in providing the halachic definition of a tree:

(a) Is the species capable of producing fruit within its first year (after planting from seed)?

(b) Does the fruit production of the species begin to deteriorate the year after it begins producing? In other words, a typical tree species produces quality fruit for a few years. If the species produces quality fruit for only one year, and then the quality or quantity begins to deteriorate, does it halachically have the category of a tree?

(c) Does the species produce fruit from shoots that will never again produce fruit?

(d) Is its physical appearance markedly different from a typical tree?

(e) Does it produce fruit for three years or less?

We should also note that the poskim dispute whether the definition of a tree for the purposes of the brachaborei atzei besamim” is the same as the definition for the bracha of “borei pri ha’eitz” and for the halachos of orlah, shemittah, ma’aser, and kelayim.

Is papaya a tree?

A papaya may grow ten feet tall or more, but it bears closer similarity in many ways to being a very tall stalk since its stem is completely hollow on the inside and it does not usually produce branches. Its leaves and fruits grow directly on the top of the main stem, and it usually produces fruit during the first year, unlike most trees.

Commercially, the grower usually uproots the plant after four to five years of production, although the papaya can survive longer, and in some places it is standard to cut it down and replant it after three years.

With this introduction, we can now begin to discuss whether papaya is a tree fruit and its proper bracha borei pri ha’eitz, or whether is it is considered a large plant on which we recite ha’adamah as we do for banana. A more serious question is whether the prohibition of orlah applies to papaya. If it does, this could create an intriguing problem, since it may be that there are plantations, or even countries, where the entire papaya crop grows within three years and may be prohibited as orlah.

Commercial and halachic history of papaya

The Spaniards discovered papaya in Mexico and Central America, from where it was transported to the Old World. The earliest halachic reference to it that I am aware of is a shaylah sent from India to the Rav Pe’alim (Vol. 2, Orach Chayim #30), author of the Ben Ish Chai, asking which bracha to recite on its fruit.

The Rav Pe’alim discusses what the appropriate bracha on papaya is. He begins by comparing papaya to the eggplant. Based on four factors, Rav Pe’alim rules that papaya is not a tree and that the appropriate bracha is ha’adamah. These factors are:

1. The part of the stem that produces fruit never produces again. Instead, the fruit grows off the newer growth higher on the plant. Initially, I did not understand what the Rav Pe’alim meant with this, since there are many trees, such as dates, which produce only on their new growth, not on the old. Thus, this does not seem to be a feature that defines a tree. After further study, I realized that the difference is that papaya produces fruit only on top of the “tree,” and it looks atypical, not resembling other trees, whereas dates, although the fruit grows on the new growth high up on the tree, it does not grow on the top of the tree, but from branches on the new growth.

2. The stem of the papaya is hollow, which is not characteristic of trees. (Rav Moshe Shternbuch, in his teshuvah on whether papaya is included in the prohibition of orlah, describes papaya as a tall stalk. See Shu’t Teshuvos VeHanhagos 3:333).

3. The fruit grows directly on the trunk and not on the branches.

4. The papaya produces fruit within its first year.

In a follow-up letter, a correspondent wrote that the custom among Jews in India is to recite ha’eitz before eating the papaya’s fruit. Rav Pe’alim responded that he does not consider this custom to be a halachic opinion, since the community lacked Talmidei Chachomim to paskin shaylos. He points out that if the papaya is a tree, then we must prohibit its fruit as orlah since the grower usually cuts it down before its fourth year.

Among contemporary poskim, some follow the ruling of the Rav Pe’alim that papaya is exempt from orlah and its bracha is ha’adamah (Shu’t Yechaveh Daas 4:52), whereas most rule that papaya does have orlah concerns (Shu’t Sheivet Halevi 6:165; Mishpetei Aretz, page 27, quoting Rav Elyashiv; Teshuvos VeHanhagos). One should note that Rav Ovadyah Yosef, who rules that papaya is exempt from any orlah concerns, also rules that passion fruit, called pasiflora in Modern Hebrew, is also exempt from the prohibition of orlah since it produces fruit in its first year. Most other authorities do not accept this approach.

Papaya outside Eretz Yisrael

There should be a difference in halacha between papaya growing in Eretz Yisrael and that growing in chutz la’aretz. Whereas the prohibition of orlah exists both in Eretz Yisrael and in chutz la’aretz, questionable orlah fruit is prohibited if it grew in Eretz Yisrael but permitted if it grew in chutz la’aretz. This is because the mitzvah of orlah has a very unusual halachic status. There is a halacha leMoshe miSinai that prohibits orlah fruit outside of Eretz Yisrael, but only when we are certain that the fruit is orlah. When we are uncertain whether the fruit is orlah, the halacha leMoshe miSinai permits this fruit.

Based on the above, one should be able to permit papaya growing outside Eretz Yisrael either because (1) there is the possibility that this particular fruit grew after the orlah years had passed or (2) that perhaps papaya is not considered a tree for one of the reasons mentioned by the Rav Pe’alim.

There are two important differences in halacha between these two reasons. The first is whether the bracha on papaya is ha’eitz or ha’adamah. The Rav Pe’alim ruled that it is not a tree fruit and therefore its bracha is ha’adamah. According to the first approach, it may indeed be ha’eitz and still be permitted, since it is only safek orlah.

Here is another difference in halacha between the two reasons.

Papain

Papain is a highly popular enzyme extracted from the papaya. In the early twentieth century, Belgian colonists in the Congo noticed that the local population wrapped meat in papaya leaves. The colonists discovered that the papaya leaves preserved the meat and also tenderized it. Laboratory analysis discovered an enzyme, now called papain, as the agent of the process. This spawned a new industry producing and selling papain from papaya plantations around the world.  New applications were discovered, and papain is now also used in the production of beer, biscuits, and is very commonly used as a digestive aid.

If papain was still produced from leaves there would be no orlah issue, since orlah applies only to the fruit of a plant. Unfortunately, today’s papain is extracted not from the leaf, but from the peel of the papaya. If a fruit is prohibited as orlah, its peel is also prohibited.

In actuality, there is a more serious problem of orlah in papain than in eating the papaya fruit itself. Papain is collected by scratching the peel of the growing fruit, which causes a liquid containing the papain to exude from the peel, without harming the fruit. A bib is tied around the middle of a papaya tree, which catches all the papain from that particular tree. The papain is collected and sent to a factory where all the papain harvested is blended. The process can be repeated many times before the fruit is ripe for picking. Thus, the papain is a second crop.

However, this method of harvesting the papain creates a halachic complexity not encountered with the papaya fruit. Since safek orlah is permitted in chutz la’aretz, if we are uncertain as to whether a particular tree growing is within its orlah years, we may eat the fruit because of the halacha leMoshe miSinai that safek orlah is permitted. Therefore, even if we consider papaya a tree, the fruit grown outside Eretz Yisrael is permitted if there is a possibility that it is not orlah.  The papain, however, would be prohibited because the papain used is a mixture of extracts of all the fruit. If indeed this particular grove contained some trees that are orlah, then the mixture is permitted only if one can be mevateil the orlah that is in the mixture. In the case of the mitzvah of orlah, that would require 200 parts of kosher fruit to every one unit of orlah. Therefore, papain would be prohibited if there are 200 parts of non-orlah fruit to one part orlah, which in essence prohibits all the papain.

The above is true if we assume that the papaya is a tree subject to the laws of orlah. However, if we assume that the different reasons suggested are enough bases to rule that it is questionable whether papaya is subject to the laws of orlah, then we may permit papaya from trees that grow outside Eretz Yisrael even when we are certain that the tree is less than three years old. The latter reason would permit papain that originates in chutz la’aretz.

While nibbling on the fruit this Tu B’Shvat, we should think through the different halachic and hashkafic ramifications that affect us. Man himself is compared to a tree (see Rashi, Bamidbar 13:20); and his responsibility to observe orlah, terumos, and maasros are intimately bound with the count that depends on Tu B’shvat. As Rav Shamshon Raphael Hirsch explains, by observing Hashem’s command to refrain from the fruits of his own property, one learns to practice the self-restraint necessary to keep all pleasure within the limits of morality.

Of Frogs and Sanctification

Most people find it fascinating to discover that the great tzadikim,Chananyah, Mishael and Azaryah, learned from the frogs in this week’s parsha that there is a mitzvah to die al kiddush Hashem. Stay tuned to find out…

Question: Amphibious actions!

Where do we find that the deeds of amphibians affect a halachic decision?

Introduction:

The book of Daniel tells us the story of the great tzadikim, Chananyah, Mishael and Azaryah, who were thrown into a fiery furnace for refusing to prostrate themselves before the statue that Nevuchadnetzar had erected (see Daniel 3:1-30). The Gemara (Pesachim 53b) explains that their decision was based on the actions of the frogs in Mitzrayim. How and what Chananyah, Mishael and Azaryah derived from the frogs will be discussed shortly, but we first need to understand some halachic background on this topic.

In general, the observance of mitzvos is superseded when life is threatened. We are well familiar with the law that, in the case of a medical, fire or other emergency, Shabbos observance is suspended to the extent necessary to protect life. The Gemara (Yoma 85a-b) quotes several halachic sources that demonstrate this concept. The conclusion is that we derive the rule that Shabbos observance is suspended to protect life from the pasuk, Vechai bahem (Vayikra 18:5),that the purpose of the mitzvos is to cherish life.

Kiddush Hashem

On the other hand, there is a mitzvah of the Torah, Venikdashti besoch B’nei Yisroel, in which Hashem commanded us to sanctify His presence within the Jewish people. This law teaches that, when an evil malefactor wants Jews to desecrate the Torah, we are sometimes required to sacrifice our lives. When ten Jews are aware that, under these circumstances, a Jew is being coerced to break any commandment, Kiddush Hashem requires that he surrender his life (Sanhedrin 74b). In this situation, someone who did not surrender his life violated not only the positive mitzvah (mitzvas aseh) of Venikdashti besoch B’nei Yisroel, but he also violated a negative command (mitzvas lo sa’aseh) of Velo sechalelu es shem kodshi.

However, when an evil malefactor is coercing a Jew to violate the Torah, but ten Jews are unaware that this is happening, the Jew is not obligated to give up his life, and, according to many authorities, he is not permitted to. There are other exceptions when one is not required or permitted to give up one’s life, which we will learn about shortly.

The ruling requiring surrendering one’s life is only when the goal of the oppressor is exclusively to get Jews to violate the mitzvos. However, if his goal is to get some benefit or pleasure for himself, there is no obligation to surrender one’s life. The Gemara (Sanhedrin 74b) presents the following theoretical example to define the difference.

Rava said, “An idol worshipper who tells a Jew, ‘Cut that hay on Shabbos and feed it to the animals, or I will kill you,’ the Jew should cut the hay and not allow himself to be killed. On the other hand, if the idol worshipper demands of him, ‘Cut that hay on Shabbos and throw it into the fire,’ the Jew should allow himself to be killed and not cut the hay. What is the difference? In the latter case, the goal of the malevolent command is to have the Jew violate the mitzvah.”

Rashi notes that Rava was discussing a situation that took place in the presence of ten Jews or, as we will soon explain, during a time of persecution. Otherwise, a Jew is not required, and, according to some opinions, not permitted to give up his life.

What about idols?

Aside from the law of Kiddush Hashem that I just discussed, there are other situations in which one is required to surrender one’s life, rather than breach the Torah. The Gemara (Sanhedrin 74a) cites a dispute among tana’im concerning what is the halacha when someone’s life is threatened should he refuse to worship an idol. Rabbi Yishmael rules that, if the situation is in private, Vechai bahem applies, even regarding the prohibition of avodah zarah. In his opinion, one may perform the external motions that appear to be idolatrous to save one’s life. However, when the situation is in public, meaning that ten Jews know about it, Rabbi Yishmael agrees that the pasuk of Velo sechalelu es shem kodshi requires surrendering one’s life, rather than violating the Torah.

Rabbi Eliezer disagrees, ruling that the sin of avodah zarah requires yeihareig ve’al yaavor, meaning that one is always required to surrender one’s life rather than violate the prohibition against idolatry, even if the sin will be performed in private. Rabbi Eliezer derives this ruling from the pasuk we say several times daily, Ve’ohavto es Hashem Elokecha bechol levavcho uvechol nafshecho uvechol me’odecho, that we are required to love Hashem with our entire heart, soul and resources, which includes that we not renounce our belief in Him; we are required to demonstrate our love for Hashem, even in the event that it would require the ultimate sacrifice (Sanhedrin 74a).

Talmudic conclusion

Quoting the tana Rabbi Shimon ben Yehotzadok, the Gemara says that the Beis Din Hagadol, the final authority of halacha for the Jewish people, concluded that for three cardinal sins — idol worship, giluy arayos (incest, adultery and similar offenses), and murder — we always say yeihareig ve’al yaavor. The requirement to sacrifice one’s life rather than violate giluy arayos or murder is derived from other sources (Sanhedrin 74a).

In this context, the Gemara cites the following anecdote. A man approached the amora Rava, asking him the following she’eilah: The warlord of his town had told this man, “Go kill so-and-so; if not, I will kill you!” The man wanted to know whether he was permitted to follow the dictate of the warlord to save his life. Rava answered that the Torah does not permit murder, even to save your own life, because of the following point, “who tells you that your blood is redder. Perhaps the other person’s blood is redder than yours!” In other words, who tells you that Hashem prefers that you survive, when you have to kill someone else in order to do so (Nimukei Yosef ad locum)?

Thus, we see that there are two situations in which we rule yeihareig ve’al yaavor: When saving my life will require that I violate one of the three cardinal sins, or when the intent of the one posing the threat is only to get Jews to violate the mitzvos, and ten Jews are aware that this is happening.

During times of persecution

The Gemara (Sanhedrin 74a) adds a third situation in which the rule is yeihareig ve’al yaavor: When the government is intent on destroying Yiddishkeit, which the Gemara calls sha’as gezeiras malchus, literally, at the time of government decrees, one is required to give up one’s life rather than violate the Torah, even for a “light mitzvah.” What is defined as a “light” or small mitzvah? The Gemara explains that this includes even the difference between the color of the shoelaces that Jews and gentiles use. Rashi explains that the case is when there is a Jewish custom that is more modest. Since the Jews have accepted this practice, if the gentile is trying to get a Jew to violate accepted Jewish practice, he is required to give up his life. It is a Chillul Hashem to allow a gentile to force a Jew to violate accepted Jewish practice, and a Kiddush Hashem to follow Jewish practice. However, this halacha applies only when it is a time of religious persecution.

Rashi’s older contemporary, the Rif, explains that the gentiles wore red shoelaces. Although there is no halachic prohibition to wear a specific color of shoelace, since this was the defining difference in garb between Jew and non-Jew in that time and place, if a gentile insisted that he wants a Jew to dress like a gentile does, one is required to sacrifice his life and not do so.

Sum up

Although when life is threatened, the observance of a mitzvah is generally suspended, in three situations one is required to sacrifice one’s life rather than violate the Torah. The three situations are:

1. Being forced to commit one of the three cardinal sins.

2. At a time of persecution.

3. When someone is forcing a Jew to violate accepted Jewish law or practice in the presence of or with the knowledge of ten Jews.

The latter cases are true only when the perpetrator’s motive is to force Jews to forsake G-d’s law, but not when he is interested in benefiting from the transgression.

Based on the above, let us quote the Rambam:

“All members of the Jewish people are commanded to sanctify His great Name, as the Torah states, Venikdashti besoch B’nei Yisroel, and they are admonished not to desecrate it, as the Torah states, Velo sechalelu es sheim kodshi. How does this law manifest itself? If an idol worshipper will stand up and force a Jew to violate one of the mitzvos of the Torah in a situation that, if the Jew refuses, the idol worshipper will kill him, the Jew should transgress the mitzvah and not allow himself to be killed, since the Torah states, Vechai bahem — You shall live with them, and not die because of them. If he chooses to die and not violate the mitzvah, he is held responsible for the loss of his own life. When is this true? — regarding mitzvos other than idolatry, gilui arayos and shedding blood. However, regarding these three sins, if the idol worshipper tells him, “Violate one of these sins or be killed,” the Jew should allow himself to be killed and not violate the mitzvah.

“When is this true? When the idol worshipper’s intention is for his own pleasure, such as, he is forcing the Jew to build a house or to cook for the idol worshipper on Shabbos… . However, if the idol worshipper’s only goal is that the Jew violate the mitzvah, if… ten Jews are not present, the Jew should violate the mitzvah and not be killed. But if the idol worshipper forces the Jew in the presence of ten Jews, the Jew is required to give up his life rather than violate the mitzvah, even if it is one of the other mitzvos. Furthermore, these rules apply only when it is not a time when the gentiles are making decrees against the Jews. However, in an era that they are, such as when an evil king, like Nevuchadnetzar, makes decrees against the Jews to violate their religion or one of their mitzvos, a Jew is required to give up his life, regardless of which mitzvah he is being coerced to transgress and regardless as to whether this coercion is in the presence of ten Jews or in private” (Hilchos Yesodei HaTorah 5:1-3).

The Rambam continues: In every instance when it says that he should violate the mitzvah and not be killed, and the Jew chose instead to be killed rather than violate the mitzvah, he is guilty of giving up his life. And in every instance when it says that the Jew should give up his life rather than violate the mitzvah, and he surrendered his life and did not violate the mitzvah, he has sanctified Hashem’s Name. If this happened in the presence of ten Jews, he sanctified Hashem’s Name in public, as was done by Daniel, Chananyah, Mishael, Azaryah, Rabbi Akiva and others like them. These are the holy ones whose greatness is above all others… . However, one who was required to surrender his life, but chose instead to violate the mitzvah and did not surrender his life has desecrated Hashem’s Name, and, if ten Jews were present, he has desecrated Hashem’s Namein public, abrogated the positive mitzvah of the Torah, Kiddush Hashem, and violated a negative mitzvah of the Torah, Chillul Hashem. Nevertheless, since his violation was coerced, he is not culpable of transgressing of his own will and, therefore, not subject to punishment for the prohibition violated, since a person is not punished for a sin performed under coercion (Hilchos Yesodei HaTorah 5:4).

Elisha, owner of wings

In this context, the Gemara (Shabbos 130a) shares with us the following story about a tzadik named Elisha, who lived during the time of the Roman persecution:

“Why was he called Elisha, owner of wings?” It once happened that the evil kingdom (a Talmudic reference to the Roman Empire) decreed that any Jew who wears tefillin will have his brain smashed. Elisha went through the streets, proudly wearing his tefillin. A Roman soldier saw him and gave chase. Elisha whipped off his tefillin and hid them in his hands. The soldier caught him and demanded that Elisha tell him what he was holding. Elisha answered him that he was holding “dove’s wings.” Elisha then opened his hands and, indeed, he was holding the wings of doves! (We will soon explain why he used this example.)

How could he?

The rishonim ask why Elisha was permitted to remove the tefillin from his head. This was clearly an era of gezeirah, and, as we noted above, in such an era, one is required to give up one’s life even for a custom of the Jews, and certainly for a mitzvah of the Torah!

The rishonim answer that there is a difference between positive mitzvos and prohibitions. Since the evildoers could physically stop the Jews from keeping mitzvos requiring actions, e.g., by locking them up without access to tefillin, there is no requirement to sacrifice one’s life to fulfill them (Ran, Pesachim 6a in Rif’s dapim). However, in the case of participating in a forbidden activity in an era of gezeirah, there the Torah declared yeihoreig ve’al yaavor, that I am required to give up my life. This ruling is accepted by the poskim as the normative halacha (Shulchan Aruch, Yoreh Deah 157).

Return of the frogs

As mentioned in our introduction, the Gemara (Pesachim 53b) teaches that Chananyah, Mishael and Azaryah derived from the frogs that they could give up their lives, rather than bow to the statue. Chananyah, Mishael and Azaryah noted that the frogs jumped into the Egyptian ovens when the ovens were hot, thus cremating themselves. Thus, the frogs, who had no mitzvah of sanctifying Hashem’s Name, still did so. Chananyah, Mishael and Azaryah reasoned a fortiori (kal vechomer): if the frogs, who were not required to sanctify Hashem’s Name, burned themselves for the sake of demonstrating Hashem’s greatness, we certainly should.

Tosafos (ad locum) questions: Why did Chananyah, Mishael and Azaryah require a kal vechomer from the frogs to conclude that they should sacrifice themselves? The event with the statue of Nevuchadnetzar happened in public, and when an incident occurs in public and the evil person’s goal is to demonstrate that he can force a Jew to violate mitzvos, the Gemara requires that one give up one’s life. In such a case, it is a requirement to do so, even for a small mitzvah or even for a Jewish custom.

Rabbeinu Tam explained that, technically speaking, Chananyah, Mishael and Azaryah were not required to sacrifice themselves, because the statue that Nevuchadnetzar erected was not an idol – it was similar to the statues that we find in our cities whose purpose is to honor someone. Nevuchadnetzar instructed people to bow to the statue to demonstrate their subservience to him. Thus, there was no requirement for Chananyah, Mishael and Azaryah to give up their lives, but they derived from the frogs that it was permitted for them to do so.

In another approach, Rabbeinu Tam’s nephew, Rabbeinu Yitzchak (usually called simply the Ri) disagreed that this is what happened in the story of Chananyah, Mishael and Azaryah. Although he clearly accepts Rabbeinu Tam’s halachic analysis, he feels that the statue placed there by Nevuchadnetzar was, indeed, an idol. To answer the question why Chananyah, Mishael and Azaryah were not required to give up their lives because of the mitzvah of Kiddush Hashem, and needed reassurance from the frogs that they were permitted to sacrifice themselves, the Ri answers that Chananyah, Mishael and Azaryah could have fled. Their question was whether they were required to flee to save their lives or whether they were permitted to remain, knowing that by staying they would be required to give up their lives for Kiddush Hashem. They derived from the frogs that they were permitted to give up their lives for Kiddush Hashem, even though they had the opportunity to avoid the situation.

We see from this discussion two additional points:

1. Although there is a mitzvah of Kiddush Hashem, there is no requirement to make sure that one remains in his location to have the opportunity to perform the mitzvah. However, according to the Ri, it is permitted, and perhaps even meritorious, to do so.

2. We should note that the Rambam quoted above stated that, as a rule of thumb, when the Torah does not require yeihareig ve’al yaavor, one is prohibited from giving up one’s life to do so. This implies that the Rambam disagrees with Rabbeinu Tam, who ruled that Chananyah, Mishael and Azaryah were not required to sacrifice themselves in their situation, but were permitted to do so.

However, the Nimukei Yosef concludes that even the Rambam might agree here. When a person whom the Nimukei Yosef describes as a great tzadik sees that the generation is lax, he is permitted to sacrifice himself in order to teach his generation. He rallies evidence for this principle from the story of Chananyah, Mishael and Azaryah.

Conclusion

I quoted above the story of the great tzadik called Elisha, “the owner of wings,” and how he earned his moniker. The Gemara continues its sharing of the anecdote by asking why Elisha said that his tefillin were dove’s wings. The Gemara concludes that the Jewish people are compared to doves, as the pasuk in Tehillim (68:14) compares the Jewish people to the wings of a dove that are coated with silver, and her wing-feathers are like fine gold. Just as the dove is protected by its wings, Klal Yisroel is protected by its mitzvos (Shabbos 130a)! May we always be protected by our mitzvos and never have to live through times when our mitzvos or lives are challenged.

When May I Remove a Tree? Part II

The Midrash teaches that Yaakov brought with him to Egypt the shittim trees that would be planted so that the Bnei Yisroel would later be able to leave Egypt with wood to build the Mishkan. There is no halachic problem with uprooting non-fruit-bearing trees for lumber, but there is at times a halachic problem with uprooting fruit trees for lumber or other use. So, this provides an opportunity to discuss…

Question #1: Darkening Peaches

“A peach tree is now blocking sunlight from reaching our house. May we cut down the tree?”

Question #2: Building Expansion

The Goldbergs purchased a house hoping to expand it onto its lot that contains several fruit trees. May they remove the trees to expand their house?

Question #3: For a Shul

Congregation Ohavei Torah purchased a plot of land for their new shul building, but the property contains some fruit trees. May they chop down the trees for the mitzvah of building a new Beis Hakenesses?

Question #4: For a Sukkah

“We just moved into a new house, and the only place where we can put a sukkah is in an area that is shaded by a fruit tree. May we chop down the tree in order to have a place to build our sukkah?”

In a previous article, we discussed several issues concerning when it is permitted to remove or destroy a fruit tree. The Torah teaches that when going to war one may not destroy fruit trees unless doing so serves a strategic purpose, and that in general it is forbidden to destroy fruit trees randomly. In that article, I mentioned that there is a dispute among authorities whether one may raze trees in order to build a house in their place. We also learned that the Gemara considers it dangerous to destroy fruit trees, and, according to some authorities, this is true even when there is no prohibition involved in razing the tree.

A Shady Deal

At this point, let us refer to our opening question: “A peach tree is now blocking sunlight from reaching our house. May we cut down the tree?”

This actual question was addressed to the Chavos Yair, a great seventeenth-century, central-European posek.

Based on the opinion of the Rosh (Bava Kamma 8:15),who permitted cutting down a tree in order to construct a house, the Chavos Yair allowed chopping down the offending peach tree (Shu”t Chavos Yair #195). However, the Chavos Yair rules that this is permitted only when one cannot simply remove some branches to allow the light into his house. When one can remove some branches and spare the tree, the Chavos Yair prohibits chopping down the tree since it is unnecessary to destroy the entire tree. Even though the branches will eventually grow and again block his light, the Chavos Yair does not permit chopping down the entire tree, but requires one to repeatedly trim it. Thus, although he accepts the Rosh’s ruling permitting removing a tree for the sake of a dwelling, the Chavos Yair notes that this is permitted only when one cannot have the house and eat the fruits, too.

Expanding Living Space

The Chavos Yair further rules that the Rosh,who permitted chopping down a tree to allow construction on its place, only permitted this for an essential need of the house, and not merely to make the house nicer, such as to widen his yard or to provide a place to relax.

At this point, we can probably answer another of our opening questions. The Goldbergs purchased a house hoping to expand it onto its lot that contains several fruit trees. May they remove the trees to expand their house?

Even according to the Rosh, they may remove the trees only to provide something essential for the house. Thus, if the need is essential, this heter will apply. (However, we will soon share a different possible solution.)

Some Are Stricter

The Chavos Yair follows the Rosh’s approach and permits removing a fruit tree if there is no other way to build a house.However, not all later authorities are this lenient. When asked this exact question — “May one cut down a tree to construct a house?” — the Netziv,one of the leading authorities of nineteenth-century Lithuania, was not comfortable with relying on the opinion of the Rosh. Rather, he concluded that there are early authorities who disagree with the Rosh and permit razing a fruit tree only in the three situations that the Gemara mentions: When the tree is more valuable as lumber, when it is producing almost no fruit, or when it is affecting the growth of other fruit trees. In the first two instances, it is no longer considered a fruit tree. The Netziv (Shu”t Meisheiv Davar 2:56) provides two different reasons why, if it is still considered a fruit tree, one cannot remove it.

(1) One may chop down a fruit tree only when it is damaging other fruit trees.

(2) Chopping down a fruit tree is permitted only when removing it provides immediate benefit. However, when one clears a tree to make room for construction, there is no immediate benefit. The benefit is not realized until one builds the house — which does not take place until later,and we do not see from the Gemara that this is permitted.

Following this latter approach, it is prohibited to destroy older trees and replace them with new ones, and halacha-abiding fruit growers must wait until their fruit trees are hardly productive before replacing them with new saplings.

At this point, I refer back to the next of our original questions: 

“Congregation Ohavei Torah purchased a plot of land for their new shul building, but the property contains some fruit trees. May they chop down the trees for the mitzvah of building a new Beis Hakenesses?”

What About for Temporary Use?

This case is fairly similar to an actual shaylah that is discussed by the Yaavetz (She’eilas Yaavetz 1:76), a prominent18th century posek in Germany. A community is renting a house from a non-Jew for their shul. The number of congregants is now, thank G-d, exceeding the size of the shul building, and the gentile owner has allowed them to expand the building on which they still have nine more years on their lease. However, there is only one direction in which they can expand their building, and do to so would require uprooting a grape vine. The gentile owner has permitted them to rip out the vine for this purpose. The community’s question is whether expanding the shul is a valid reason to permit ripping out a grape vine, which is halachically considered a fruit tree. The question is more significant in light of the fact that the community’s benefit may be only temporary — the gentile landlord may not renew their lease when it comes up for renewal, and they may then need to look for new quarters.

The Yaavetz ruled that even the temporary use of a shul is a valid reason permitting the ripping out of the grape vine. However, because of his concern that it is dangerous to do so, he advises hiring a gentile to uproot the vine. Since the mitzvah of destroying fruit trees is not included among the mitzvos that a ben Noach must observe, the gentile is not required to observe this mitzvah and therefore it is not dangerous for him to remove it.

The Yaavetz then mentions another factor. In every instance mentioned by the earlier authorities, it was not possible to replant the tree that is being removed in a different place. The Yaavetz suggests that there is no prohibition to uproot a fruit tree if one will replant the tree elsewhere. Thus, he concludes that even when no other solution exists to permit destroying a fruit tree, one may remove it by its root and replant it elsewhere, and then use the land for whatever one chooses.

Saving the Goldbergs!

The Yaavetz’s suggestion is very welcome news to the Goldbergs. They purchased a new house hoping to expand it onto the huge lot that they have that contains several beautiful fruit trees. May they remove the trees to expand their house?

According to the Yaavetz, they may remove the trees and plant them elsewhere, and then expand their house onto the extended lot.Again, I suggest that the Goldbergs check whether this relocation of the tree can realistically be done.

There are a few concerns about relying on this ruling of the Yaavetz. First, I have been told that although the Yaavetz may have known that this can be done, the assumption among today’s experts is that a transplanted mature fruit tree will not survive. Thus, this will be considered destroying the tree,

Furthermore, even assuming that the tree can be successfully replanted, the ruling of the Yaavetz is not without its detractors. The Chasam Sofer (Yoreh Deah #102) the posek hador of early nineteenth-century central Europe, concludes that one should not rely on this idea of the Yaavetz to remove a tree when other lenient reasons do not apply. However, he does rule that even when halacha accepts that one may uproot a fruit tree, if one can replant it one may not destroy it, since the demolition of the tree is unnecessary. Thus, if a fruit tree is damaging other trees, one may destroy it only when replanting it is not an option.

Shady Mitzvah

At this point, I would like to discuss our fourth opening question:

“We just moved into a new house, and the only place where we can put a sukkah is in an area that is shaded by a fruit tree. May we chop down the tree in order to have a place to build our sukkah?”

This exact question was asked of Rav Tzvi Pesach Frank, who was the Rav of Yerushalayim for many decades until his passing in 1960. Rav Frank cites and analyzes many of the above-mentioned sources, and is inclined to be lenient, reasoning that the performance of a mitzvah cannot be considered a destructive act. He concludes that one should have a gentile remove it, but not as an agent for a Jew, although he does not explain how one accomplishes this (Shu”t Har Tzvi, Orach Chayim II #102).

Conclusion

Thus we see that there are different conclusions as to when one may destroy a fruit tree for a valid reason, and each person should ask his own rav what to do.

The Ramban explains that the reason for the mitzvah is that one should have trust in Hashem that He will assist us in vanquishing our enemies and then we will be able to use the fruit from this tree. Destroying the tree when this serves no strategic benefit means that we think we will never use it. Rather, one should feel that one will gain from this tree as soon as the enemy is vanquished. We should assume that the area and all it contains will become our property, so why destroy the tree growing there innocently? One should take care of this tree just as one would take care of a tree that is already my personal property.

The Longest Year

Since this is a leap year, in which we add an extra month for Adar, this year has 385 days – making it the longest year that our current Jewish calendar can have. Therefore, I am presenting:

The Longest Year

“Thirty days hath September / April, June and November.” If we were to adapt this poem to, l’havdil, our current, standardized Jewish calendar, we would say that thirty days hath Tishrei, Shvat, Nissan, Sivan, Av, and sometimes Cheshvan1 and Kislev. But the idea of having a standardized Jewish calendar seems to run counter to several mishnayos in Rosh HaShanah. In those mishnayos, we see that whether a specific month has 29 days or 30 days depends on whether witnesses saw the new moon and testified in beis din early enough to declare the 30th day Rosh Chodesh (that is, the first day of the next month). In addition, the Gemara2 states that at times Elul could be 30 days long — which cannot happen in our calendar.

How did our empirical calendar become so rigid and predictable? The Torah (Shemos 12:2) commands the main beis din of the Jewish people (also known as the Sanhedrin), or a beis din specially appointed by them, to declare Rosh Chodesh upon accepting the testimony of witnesses who observed the new moon.3 The purpose of having eyewitnesses was not to notify the beis din that the moon had appeared; the beis din had extensive knowledge of astronomy and could predict exactly when and where the new moon would appear and what size and shape it would be.4 The Torah obligated the beis din to wait for witnesses, however, and they could only rule on whether the 30th day would be the last day of the old month or would become the first day of a new month, based on testimony. If no witnesses to the new moon arrived on the 30th day, then the 31st day became Rosh Chodesh, regardless of the astronomic calculations (Mishnah Rosh HaShanah 24a). At that point in Jewish history, any month could be either 29 or 30 days.

The Torah also commands us that Pesach must always fall during the spring (Devarim 16:1). This seemingly innocuous mitzvah actually requires considerable manipulation of the calendar, since months, derived from the word moon, are determined by the length of time from one new moon to the next, which is a bit more than 29½ days. A lunar year is, or more accurately, twelve lunar months are, almost exactly 354 days. The seasons of the year, on the other hand, are calculated according to the solar year, because seasons change based on where the sun’s most direct rays strike the earth. This varies daily, as the most direct rays move from the north Tropic of Cancer to the south Tropic of Capricorn and back again. A solar year is a bit less than 365¼ days, and is based on the length of time it takes the earth to rotate around the sun. Since Pesach must always take place during the spring, the calendar cannot be twelve lunar months every year, because over time, the eleven-day discrepancy between the lunar and solar years would cause Pesach to wander through the solar year and occur in all seasons.5

The Two “Other” Calendars

There are four calendars commonly in use in the world today, two of which make no attempt to resolve the discrepancy between solar and lunar years. The most common secular calendar (the Gregorian or Western calendar) is based solely on the sun. Although the year is nominally broken into twelve months, the use of the word “months” here is a significant departure from its original meaning. In the Gregorian calendar, months have no relationship to the cycles of the moon. Most secular months have 31 days, while the lunar cycle is only about 29½ days, and even secular months that have 30 days do not relate to any phase or change in the moon. Similarly, the length of February as a month of either 28 or 29 days has nothing to do with the moon. Thus, although the word month should correspond to the moon, the Gregorian calendar is purely a solar one, with the borrowed term, “month,” given a meaning detached from its origin.

Another calendar that is seeing increased use today is the Muslim one, which is purely a lunar calendar of twelve lunar months, some 29 days and some 30. In truth, a pure lunar calendar has no real “year,” since a year is based on the relative locations of the sun and the Earth and the resultant seasons, while a lunar “year” of twelve lunar months completely ignores seasons. The word “year” is used in the Muslim sense only as a basis for counting longer periods of time, but has no relationship to the sun. In fact, the Muslim “year” is only 354 or 355 days long — almost eleven days shorter than a solar year. Therefore, a Muslim who tells you that he is 65 years old is really closer to 63 according to a solar year count. He has counted 65 years, each of which is at least ten days shorter than a real (solar) year. (I trust that Guinness takes these factors into account when computing world records for longevity and the like.)

The Muslim year “wanders” its way through the seasons, taking 33 years until a specific month returns to the exact same point in the solar year in the previous cycle. In the interim, that month has visited each of the other seasons for several consecutive years.

13 month years

There are two commonly used calendars whose months are based on the moon, and years are based on the sun. The traditional eastern Asian calendar, usually referred to as the “Chinese Calendar” and the Jewish calendar, both accommodate this by having some years that are thirteen months and others that are twelve. The methods used by these two calendars to decide which month is doubled and when are quite different. Since our articles are on halacha, I will not discuss the details on how the Chinese calendar decides which month to double and when to do so.

The Jewish Calendar

As we have seen, we are commanded to create a calendar that uses the lunar cycle to define the months, but also to keep our months in sync with the seasons, which are dependent on the sun, in order to determine the dates of the Yamim Tovim. The only way to do so is to occasionally add a month, thereby creating a thirteen-month year, to offset the almost eleven-day difference between twelve lunar months and a solar year. The result of this calendar is that although each date does not fall exactly on the same “solar date” every year, it falls within a close range relative to the solar year. Who determined which years have thirteen months?

Under the original system, the main beis din appointed a smaller special beis din to determine whether the year should have an extra month. This special beis din took into consideration:

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

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

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

4) Convenience, or more specifically, the halachic inconvenience of creating a leap year. The shmittah year and the year following were never made into leap years, and the year before shmittah usually was.

5) Infrastructure. For example, the condition of the highways and bridges.

All of these points influenced whether the thirteenth month, the additional Adar, would be added.6 When this system was in place — during a period without interruption from the time of Moshe and Yehoshua until about 300 years after the destruction of the Beis HaMikdash — the main beis din sent written messages notifying outlying communities of the decision to create a leap year, and the reasons for their decision.7

Creation of the “Permanent” Calendar

During the later era of the Talmud, Roman persecution made it impossible to continue declaring Rosh Chodesh based on eyewitness testimony. Thus, Hillel HaNasi (not to be confused with his more illustrious ancestor, the Tanna Hillel, also sometimes called Hillel Hazakein, who lived several hundred years earlier) instituted a calendar based purely on calculation, without human observation of the new moon. Rambam explains that the mitzvah of the Torah is that if it becomes impossible to declare Rosh Chodesh and leap years on the basis of observation, then the beis din should create a permanent calendar.8 Hillel HaNasi’s calendar kept the same basic structure of 29- and 30-day months and twelve- and thirteen-month years, but it was based purely on calculation and not on the variables mentioned above.

When Hillel HaNasi created the new calendar, he incorporated in its calculations several innovations. The two major changes in this new calendar are:

1) A Leap of Fate

Leap years now follow a regular pattern of seven leap years, called me’ubaros, and twelve non-leap years, called peshutos (ordinary), in a nineteen-year cycle. The third, sixth, eighth, eleventh, fourteenth, seventeenth, and nineteenth years of the cycle are always leap years, and the rest are ordinary years. This year, 5779, is the third year of the cycle and thus is a leap year.

2) The Haves vs. the Have-Nots

The length of most months is now fixed. Tishrei, Shvat, Adar Rishon (which exists only in a leap year), Nissan, Sivan, and Av will always have 30 days; Teves, regular Adar (in a common, nonleap year), Adar Sheini (in a leap year), Iyar, Tammuz, and Elul are always 29 days long. The months of Cheshvan and Kislev are the only months that can vary — sometimes they are 29 days and sometimes they are 30 days.9 A year in which both Cheshvan and Kislev have only 29 days is called chaseirah, lacking. If Cheshvan has 29 days and Kislev has 30, the year is considered kesidrah, expected or regular. If both Cheshvan and Kislev have 30 days, the year is called sheleimah, full.10

Both ordinary and leap years can be either chaseiros, kesidran, or sheleimos. Thus, in the new calendar, all ordinary years are either 353 days (if both Cheshvan and Kislev have 29 days), 354 days (if Cheshvan has 29 days and Kislev has 30), or 355 days (if both Cheshvan and Kislev have 30 days). All leap years are either 383 days (if both Cheshvan and Kislev have 29 days); 384 days (if Cheshvan has 29 days and Kislev has 30), or 385 days (if both Cheshvan and Kislev have 30 days). Since Adar Rishon always has 30 days, the addition of an extra month in a leap year always adds exactly thirty days.

(Because the nineteen-year cycle synchronizes the lunar calendar with the solar year, the Hebrew and English dates of births, anniversaries, and other occasions usually coincide on the nineteenth anniversary of the event. If yours is off by a day or two, do not fret. Your recordkeeping is accurate, but the cycle of nineteen years relates only to whether it is a leap year, not to whether the years are of the exact same length. The lengths of Cheshvan and Kislev are determined by other factors, plus the fact that February 29 does not occur every secular year will affect whether your 19th, 38th, 57th, 76th, or 95th Hebrew and secular birthday or anniversary exactly coincide, or whether they are slightly off.)

Revealing Top Secret Information

In order for the new calendar to be established properly, a very carefullyguarded secret had to be revealed. Chazal had always kept secret how one can predict when the new moon is destined to appear, a calculation called the sod ha’ibur. This information had always been kept secret in order to prevent false witnesses from coming forth and testifying that they saw the moon at a time when they knew it could be seen. With the new calendar coming into use, this was no longer a concern. Moreover, people had to know the secret in order to calculate the calendar correctly. The sod ha’ibur is that each new moon appears 29 days, 12 hours, and 793 chalakim or 793/1080 of an hour after the previous new moon.11

Once one knows when the new moon, called the molad, occurred on one Rosh HaShanah, he could add the sod ha’ibur figure either twelve or thirteen times (depending on the number of months that year) and determine the time of the molad in the next year, which is the most important factor in determining the date of the next Rosh HaShanah.

Another factor had also been guarded as a secret: that Rosh HaShanah sometimes takes place not on the day of the molad, but the next available day (see below). In the old system, this happened when the molad fell on the afternoon of Rosh HaShanah and the moon would not be visible in Eretz Yisrael until the next day. When Rosh HaShanah was determined by the observation of witnesses, this information was important not only in determining when Rosh HaShanah falls, but also when interrogating potential witnesses testifying to the appearance of the new moon. Although the new calendar is no longer dependent on witnesses seeing the moon, and so we could conceivably set Rosh HaShanah even in a year when the molad falls during the afternoon, we nevertheless postpone Rosh HaShanah to the following day. Thus, creating the calendar in a way that it could be used required revealing these two secrets, so that a person could determine which day should be Rosh HaShanah in the coming year.

Additional Innovations

Did you ever notice that Yom Kippur never falls on Friday or Sunday? If it did, we would have to observe two consecutive days, both of which have the stringency of Shabbos. Even today we can appreciate the difficulty that this poses, although it was even greater in the era before the discovery of the principles of refrigeration.

When the calendar was based on observation, Yom Kippur did sometimes fall on either Friday or Sunday.12 However, Hillel HaNasi’s new calendar included some innovations that were not part of the earlier calendar. The new calendar does not allow Yom Kippur to fall on either a Sunday or a Friday, thus avoiding the difficulty of having two Shabbos-like days fall consecutively. It also does not allow Hoshana Rabbah to fall on Shabbos, which would cause the cancellation of the hoshanos ceremony.

As long as the calendar was determined on the basis of eyewitness testimony, the halachah favored having Rosh Chodesh fall on its most correct day, over the concerns of having two Shabbos-like days fall consecutively, or canceling the hoshanah ceremony on Hoshanah Rabbah.13 But after eyewitness testimony could no longer be used, and we were going to implement a permanent calendar that fulfilled the mitzvah in a less-preferred way anyway, the halachah then went the other way: it favored keeping Yom Kippur from falling on Friday or Sunday, and keeping Hoshanah Rabbah from falling on Shabbos.

In order to accommodate these innovations, Rosh HaShanah could now fall only on Monday, Tuesday, Thursday, or Shabbos, since if it falls on Sunday, Hoshana Rabbah falls on Shabbos; if Rosh HaShanah falls on Wednesday, Yom Kippur falls on Friday; and if Rosh HaShanah falls on Friday, Yom Kippur falls on Sunday. This would mean that when Rosh HaShanah in the coming year would naturally fall on Sunday, Wednesday, or Friday, an extra day is added to the calendar to make sure that Rosh HaShanah falls on Monday, Thursday, or Shabbos instead.14 This concept of ensuring that Rosh HaShanah not fall on Sunday, Wednesday, or Friday is called

ראש לא אד”ו , lo adu Rosh, meaning that the beginning of the year, Rosh HaShanah, does not fall on א, the first day of the week, Sunday; ד, Wednesday; or ו, Friday. It is predominantly for this reason that there was a need to have Cheshvan and Kislev sometimes 29 days and sometimes 30, in order to make the exact length of the years flexible.

Although adding one day to the year so that Rosh HaShanah will not fall on a Sunday, Wednesday, or Friday seems simple, at times the calculation needs to take additional factors into consideration, as we will see shortly. Since Hillel HaNasi’s calendar did not allow a common year to be longer than 355 days and a leap year to be shorter than 383 days, the only way to avoid this happening is by planning in advance what will happen in the future years, and adjusting the calendar appropriately.

In order to accommodate these various calendar requirements, Hillel HaNasi established four rules, called dechiyos, which, together with the sod ha’ibur calculation and the nineteen-year rotation, form the basis of determining our calendar.15 We’ll use a sample two years calculation of the molad for Rosh HaShanah to explain a dechiyah. A few years ago, the molad calculation for Rosh HaShanah fell on Wednesday evening, and Rosh HaShanah therefore was on Thursday, which is what we would expect. But the following year’s molad fell on Tuesday, less than two hours before the end of the day. Although the molad was on Tuesday, it was too late in the day for this molad to be visible in Eretz Yisrael, and therefore Rosh HaShanah could not occur before Wednesday. However, since Rosh HaShanah cannot fall on a Wednesday, because of the rule of lo adu Rosh, it had to be pushed off to Thursday, or two days after the molad. For this reason, that year had to have an extra day, making it not only a leap year, but also a sheleimah, when both Cheshvan and Kislev have thirty days. This created a year of 385 days, the longest a year can be.16

As mentioned above, although the leap years follow a fixed nineteen-year cycle, whether the year is chaseirah, kesidrah, or sheleimah is determined by the other factors we have noted, and therefore does not follow the nineteen-year pattern. Rather, one first calculates when Rosh HaShanah should fall out based on the sod ha’ibur, then checks the rules of the dechiyos to see what adjustments need to be made, and then determines on which day Rosh HaShanah should fall. As a result, whether the year in question needs to be chaseirah, kesidrah, or sheleimah requires calculating not only that year’s schedule, but also the coming year’s calendar requirements. A result of all these calculations is that although there might seem to be many potential variables used in calculating the years (the day of the week of Rosh HaShanah, whether it is a leap year or ordinary year, and whether the year is chaseirah, kesidrah, or sheleimah), for reasons beyond the scope of this article, there are only seven possible prototype years for an ordinary year, and seven for a leap year.

Each of these fourteen prototype “years” is identified by a three-letter acronym, in which the first letter identifies the day of the week of the first day of Rosh HaShanah; the second letter denotes whether the year is chaseirah, kesidrah, or sheleimah; and the third letter identifies the day of the week of the first day of Pesach. No letter is used to denote whether the year is an ordinary year or a leap year, because this can be calculated by knowing how many days of the week there are between Pesach and Rosh HaShanah. In a common ordinary year that is kesidrah, Pesach falls two days later in the week than Rosh HaShanah. In a leap year, it falls four days later, the two additional days being the extra two days that Adar Rishon, which is thirty days long, adds to the count of the days of the week. Of course, these calculations must be adjusted one day in either direction if the year is chaseirah or sheleimah. Thus, the acronym for this year, 5779, is bais shin zayin בשז – Rosh HaShanah was on a Monday, the year is a sheleimah (both Cheshvan and Kislev had 30 days), and the first day of Pesach is on Shabbos.

 

(Endnotes)

1 Although the correct name of the month is Marcheshvan, we will use the colloquial name, Cheshvan.

2 Rosh HaShanah 19b, 20a.

3 Rambam, Hilchos Kiddush HaChodesh 1:1, 7; 5:1.

4 Ibid. 2:4; Ritva on the Mishnah Rosh HaShanah 18a.

5 Rambam, ibid. 4:1.

6 Sanhedrin 11a–12a.

7 Sanhedrin 11b; Rambam, Hilchos Kiddush HaChodesh 4:17.

8 Ibid. 5:2.

9 Ibid. 8:5.

10 Since Kislev is sometimes 29 days and sometimes 30, the last day of Chanukah can either be on the second or the third day of Teves.

11 The term chelek, used when announcing the molad on Shabbos Mevarchim, equals 1/1080 of an hour, or 3 and 1/3 seconds.

12 She’eilos of Rav Acha’ei Geon, 67; Rambam, Hilchos Shabbos 5:21; Ha’Emek She’eilah, ad loc., note 22.

13 Ha’Emek She’eilah, ibid.; Gri”z, Hilchos Kiddush HaChodesh.

14 Rambam, Hilchos Kiddush HaChodesh 7:1.

15 Because these dechiyos are extremely technical, we suffice with explaining one of them.

16 Technically, only one of the possible combinations will result in the year being this length. Of the fourteen different year prototypes, three are sheleimah leap years of 385 days.

 

The Chanukah Miracle

By Rabbis Avraham Rosenthal and Yirmiyohu Kaganoff

Question #1: How did the Seleucid Greeks defile the oils?

 Question #2: How was the oil in the flask protected from tumah?

 Question #3: How did the Chashmona’im know that it was indeed tahor, ritually pure?

 Question #4: Is there a prohibition against lighting the golden menorah with oil that is tamei?

 Introduction:

We are all familiar with the story of the flask of olive oil found with the seal of the kohein gadol that was used to light the menorah in the Beis Hamikdash after the defeat of the Seleucid army. There is much discussion in halachic literature concerning this flask of oil. This week’s article will attempt to address the opening questions about that flask.

To begin, let us quote the Gemara’s explanation of the story: “What is Chanukah? (As Rashi explains this question,) on account of which miracle did the Rabbis establish Chanukah? The Rabbis taught: On the twenty-fifth of Kislev the days of Chanukah commence. They are eight days, on which it is not permitted to eulogize or to fast. For when the Greeks entered the Sanctuary, they contaminated all the oil that was in the Sanctuary. And when the royal Chashmona’im house gained the upper hand and vanquished them, they searched [the Beis Hamikdash] and found only one flask of oil that had the kohein gadols seal. It contained only enough oil to kindle the menorah for one day. A miracle happened with this oil and they kindled the lights with it for eight days. In the following year, they rendered [these eight days] into a festival with respect to the recital of Hallel and thanksgiving” (Shabbos 21b).

Defiling the Oil

Our first question was: “How did the Seleucid Greeks defile the oils?” Concerning this question, we find several opinions among the Rishonim and Acharonim:

1) One possibility, suggested by Tosafos (ad loc.), is that, miderabbanan, non-Jews are treated as tamei to the extent that they make people and utensils tamei via physical contact or by lifting or moving them (Shabbos 17b; Nidah 31a; Rambam, Hilchos Metamei Mishkav Umoshav 2:10). According to this approach, if the Greeks merely moved the flasks of oil, they became tamei.

2) Another suggestion is that the oil became tamei through tumas meis, the type generated by a corpse. This works as follows: Let us say, for example, that a person enters a room in which there is a corpse. Both he and his clothes are now tamei. If he or his clothes then come in contact with a utensil, the utensil is now tamei. In a situation where there is food or liquid in the container, it becomes tamei because it is in contact with the utensil.

Thus, the garments worn by the Greek soldiers who entered the Beis Hamikdash were, in all likelihood, tamei, as the soldiers had most likely come in contact with their dead Jewish victims. When those garments came in contact with the flasks of oil located in the Sanctuary, the flasks become tamei, which in turn caused the oil to become tamei as well (Re’eim, commentary to Semag, Hilchos Chanukah).

3) Another possibility, suggested by the Rogetchover Gaon (Tzafnas Panei’ach, Hilchos Chanukah 3:1), is based on a passage of Gemara (Chullin 123a) that rules that when a platoon of non-Jewish soldiers enters a house, everything in the house contracts tumas meis. This is because the soldiers were wont to carry skins taken from a corpse in order to use them for witchcraft against the enemy. Based on this, the Greeks soldiers also brought this tumah into the Beis Hamikdash, thereby causing the oil to become tamei.

4) Rav Avraham Halevi Gombiner, author of the famous Magen Avraham commentary on Shulchan Aruch, also wrote commentaries on the midrashim called Zayis Raanan. There he suggests that the oil found in the Beis Hamikdash was not tamei, but the Chashmona’im did not want to use it out of concern that it had been used as part of an idolatrous service (Yalkut Shimoni, Emor, #655, Zayis Raanan, s.v. af betumah).

The Oil was Protected

Our second and third questions were: How was the oil in the flask protected from tumah, and how did the Chashmona’im know that it was indeed tahor, ritually pure?

Again, concerning this issue we find numerous approaches:

1) Rashi, commenting on the Gemara (Shabbos 21b, s.v. bechosmo), writes that they found the sealed flask in a hidden place, where it was unlikely to have been handled by the Greeks.

2) The Ran (Shabbos, ad loc.) writes that the flask was made out of pottery, which has the unique quality that it does not become tamei when someone touches its exterior.

3) Tosafos (Shabbos 21b, s.v. shehayah) write that the flask was situated in the ground in such a fashion that it was evident that the Greeks did not move it. Several Rishonim propose various possibilities as to how it was evident. Some suggest that they found the flask hidden in the area under the mizbei’ach into which flowed the water and wine libations (Yotzros, second Shabbos Chanukah). Others suggest that the flask was in a sealed cubby (Meiri, Shabbos 21b, s.v. neis zeh; see also Kol Bo #44).

4) Some Rishonim write that it is clear that the Greek army was not even aware of the flask’s existence, for had they come across it they would have certainly broken it open to see if there was anything valuable inside (Ran and Meiri, Shabbos ad loc.).

Using Tamei Oil

Now let us address the last of our opening questions: Is there a prohibition against lighting the golden menorah with oil that is tamei?

The basis of this question is that there is a halachic principle, “tumah hutrah betzibbur,” when the only way to offer the required regular public korbanos is by violating the rules of tumah, the Divine service in the Beis Hamikdash is permitted. Only individuals who are tamei are prohibited from bringing offerings and the like. The source of this halachah is based on a pasuk: “Command the Bnei Yisrael and they shall take for you pure olive oil, pressed, for illumination, to kindle a continual lamp (ner tamid)” (Vayikra 24:2). The Sifra elaborates: “‘Tamid’ – even on Shabbos; ‘tamid’ – even in tumah.” The Rambam quotes this ruling (Hilchos Tamidin Umusafin 3:10). If so, the menorah could have been kindled with tamei oil.

Adding to the question as to the necessity of attaining oil that was tahor, the Acharonim point out that the other korbanos at the time were offered even though everyone was tamei (see Aruch Hashulchan, Orach Chayim 670:3; Pnei Yehoshua, Shabbos 21b, s.v. mai chanuka).

We find several viewpoints in the Rishonim and Acharonim explaining why they required oil that was tahor.

1) Some Acharonim write that the permissibility of tumah hutrah betzibbur applies only to tumas meis, tumah generated by a corpse. However, this rule does not apply to other types of tumah. Therefore, since, according to some opinions, the oil was tamei for other reasons (see above), it could not be used (Pri Chadash 670).

2) Others contend that the rededication of the Beis Hamikdash by the Chashmona’im created a unique situation. The lighting of the menorah at that time was not merely a fulfillment of the daily mitzvah, but it initiated a new beginning, which required doing so in the purest way possible. This required that they attain oil that was tahor (Gilyonei Hashas [Mahari Engel], Shabbos 23).

A similar idea can be found in the Daas Zekeinim Mi’baalei Tosafos (Vayikra 10:4). Although a kohein gadol is not allowed to become tamei for one of his seven closest relatives, a kohein hedyot (regular kohein) is normally allowed to do so. The Daas Zekeinim points out that Aharon’s two remaining sons, Elazar and Isamar, were not allowed to become tamei upon the deaths of their brothers. This was because they were just then commencing their initiation as kohanim, and therefore they had the same restrictions as a kohein gadol.

3) Some explain that, in actuality, it was permitted to light with tamei oil because of the halachah of tumah hutrah betzibbur. Nevertheless, Hashem performed a miracle on their behalf allowing the one day’s worth of oil to burn for eight days in order to show them His love. This enabled them to light the menorah – the symbol that Hashem’s Divine Presence resides among the Jewish Nation – with oil that was tahor (Pnei Yehoshua, Shabbos 21b; Shu”t Chacham Tzvi #87; Rosh Yosef, Shabbos 21b).

4) According to the view of the Zayis Raanan mentioned earlier, the concern was that the oil had been contaminated by idol worship.  The Chasmona’im needed oil that did not have this problem, and the heter of tumah hutrah betzibbur did not apply.

Conclusion

Whereas Shabbos and most of our holidays include Kiddush and other festivities that we celebrate with the use of wine, on Chanukah we celebrate the miracle that happened with the olive oil in the Beis Hamikdash. Many of our customs, including the consumption of donuts and latkes, are to remind us of the miracle of the oil.

It is interesting to note the many comparisons made between olives and grapes, and this also has halachic overtones. Both vineyards and olive groves are called kerem in Tanach and Mishnaic Hebrew (see Berachos 35a). Wine and olive oil are the only fruit products used in korbanos on the mizbeiach. They are also the only liquids whose brocha is not shehakol; it is ha’eitz in the instance of olive oil and hagefen in the instance of wine and grape juice. They both have the halachic distinctiveness of being the only fruits with a Torah requirement of separating terumos and maasros; and they are the only fruits that may be squeezed for their product when they have terumah sanctity.

On the other hand, there is an interesting technical difference between grapes and olives, one with major hashkafic ramifications. Whereas it requires much tending to coax the vine to produce quality wine grapes, the olive tree requires little attention to produce quality olive oil. Once one has chosen the proper site for planting the trees, the main efforts required to produce quality oil are to harvest the olives exactly when they are ready and to crush them immediately without damaging them. Any significant delay reduces severely the quality of the oil extracted. This is also reflected in the halacha, which rules that one may harvest and process olives on Chol Hamoed, when work is usually prohibited, because delaying causes major loss (Mishnah, Moed Katan 11b).

The root of the word Chanukah is the same as that of chinuch; both instances include the concept of training or the beginning of performing mitzvos. Thus, the true translation of chinuch is not education, as it is ordinarily used, but training.  Similar to the grape, some children require constant involvement in their education. If you take your eyes off their chinuch for a moment, they will be in trouble. However, when you attend to them carefully and constantly, they’ll produce high quality wine. Other children resemble the olive. They require less oversight. Once they are planted correctly, they only require attentive oversight at key junctions. The rest of the time, they will do far better if left to grow on their own. This is indeed a manifestation of the other aspect of chinuch/Chanukah. As parents and teachers, it is our task to understand our children and apply the correct approach to maximize the potential of each child. As Mishlei (Proverbs) tells us, chanoch lanaar al pi darko (22:6), each child needs to be educated according to his own specific requirements. May the lights of Chanuka symbolize for us the dedication of our ancestors to direct their children and students in the way of Torah, and may they serve as a beacon for us to continue in that mission.