Chol Hamo’eid – Weekday or Yom Tov?

Question #1: My shoes tore on Yom Tov. May I have them repaired on Chol Hamo’eid?

Question #2: The supermarket has something on sale on Chol Hamo’eid that I need for after Yom Tov. May I purchase it?

Question #3: I am visiting my parents in Chutz La’aretz for Yom Tov. I know that cooking on Chol Hamo’eid is permitted only for Yom Tov and Chol Hamo’eid. Does the fact that I must keep two days of Yom Tov while in Chutz La’aretz permit me to cook on Chol Hamo’eid for their Simchas Torah?

Question #4: Someone told me that Chol Hamo’eid is sometimes stricter than Shabbos. How can that be?

Answering these shaylos provides an opportunity to discuss the important and complicated halachos of Chol Hamo’eid. As the Gemara (Mo’eid Katan 12a) points out, the halachos of Chol Hamo’eid are hard to categorize. Therefore, although a short article cannot possibly explain all the halachos of Chol Hamo’eid, I will present many of the principles and provide a basis for each individual to ask his or her own shaylos.

The Gemara (Chagigah 18a) implies that working on Chol Hamo’eid is forbidden min haTorah. Indeed, observing Chol Hamo’eid is included in the mitzvah of keeping Yom Tov, which is testimony of Hashem’s special relationship with the Jewish people (Pesachim 118a with Rashbam).

The Torah describes four mitzvos as an “Os,” a sign of Hashem’s relationship with us: Bris Milah, Shabbos, Yom Tov (including Chol Hamo’eid) and Tefillin. Because Chol Hamo’eid is included in this very special category, Jews should treat Chol Hamo’eid with great respect. Indeed, the Gemara states that disregarding the kedusha of the Yomim Tovim, including Chol Hamo’eid, is like idolatry (Pesachim 118a with Rashbam). Some commentators explain that this includes even someone who fails to serve special meals in honor of Chol Hamo’eid (Bartenura, Avos 3:11). Observing Chol Hamo’eid appropriately attests to our special relationship with Hashem.

DEFINING WORK ON CHOL HAMO’EID

Chol Hamo’eid is an unusual holiday. On the one hand it is Yom Tov, and we may not engage in many melacha activities. On the other hand, we may do many activities that enhance the celebration of Yom Tov.

The laws determining what is permitted and what is prohibited on Chol Hamo’eid are very detailed and technical. What really governs whether something is permitted on Chol Hamo’eid or not? The Gemara explains that the Torah prohibits doing some melachos on Chol Hamo’eid, yet “passed on to Chazal the rules of what melacha is prohibited and what is permitted” (Chagigah 18a).

What does this mean? Is the foundation of this mitzvah min haTorah, or is it miderabbanan? How could the Torah create a prohibition and “pass on to Chazal” what is prohibited?

Here are three basic interpretations of this Gemara:

1. Some rishonim (Tosafos, Chagigah 18a) explain that melacha on Chol Hamo’eid is an asmachta, meaning something the Torah implies that it does not want us to do, but does not expressly forbid (see Ritva, Rosh Hashanah 16a). According to this approach, the Torah did not want Bnei Yisroel to work on Chol Hamo’eid, but never prohibited it. Thus, when the Gemara implies that melacha on Chol Hamo’eid is prohibited min haTorah, it is presenting the Torah’s sentiment, not a commandment. Working on Chol Hamo’eid violates the spirit of Yom Tov, but does not violate the letter of the law. Chazal then implemented the Torah’s sentiment as law, by forbidding certain melachos on Chol Hamo’eid. Since Chazal created the prohibition, they also created the rules, prohibiting some activities and permitting others.

2. Other rishonim explain that the details of Chol Hamo’eid law are part of Torah Shebe’al Peh that Hashem gave Moshe Rabbeinu at Har Sinai for him to transmit orally (Ritva, Mo’eid Katan 2a). Thus, someone who violates the laws of Chol Hamo’eid is violating a Torah prohibition, just as someone who violated any other interpretation of a Torah law that is transmitted to us through Chazal.

3. A third interpretation is that although the Torah prohibited melacha on Chol Hamo’eid, it delegated to Chazal the power to decide what to prohibit and what to permit. Thus, even though Chazal formulated the rules that govern Chol Hamo’eid, someone who violates them abrogates Torah law (Rashi, Chagigah 18a).

Whether the prohibition of melacha is min haTorah or only miderabbanan, the purpose of Chol Hamo’eid is to devote one’s time to learning Torah (Yerushalmi, Mo’eid Katan 2:3). In addition, ceasing from certain melachos elevates Chol Hamo’eid above ordinary weekdays (Rambam, Hilchos Yom Tov 7:1).

This last reason is a theme that lies behind the complex details of the laws of Chol Hamo’eid: we desist from activity that detracts from the purpose of Yom Tov. For this reason, Chazal prohibited some activities on Chol Hamo’eid that are not necessarily melacha, but nonetheless detract from the Yom Tov experience. These prohibited activities include:

1. Commerce that is not necessary for the festival.

2. Moving to a new residence.

COMMERCIAL ACTIVITY

Chazal prohibited business activity on Chol Hamo’eid, unless it is to enhance the festival or to prevent financial loss (Mo’eid Katan 10b). Even business that is permitted should be conducted in a discreet way that does not disturb kedushas Yom Tov (Mishnah, Mo’eid Katan 13b). Thus, Chazal ruled that a clothing store may sell clothes to be worn on the festival, but that its main door to the street should be closed. If it has two doors to the street, one may be open and the other should be closed, in order to demonstrate that today is Chol Hamo’eid (Gemara ad loc.; Shulchan Aruch, Orach Chayim, 539:11).

A store selling only perishable food items may remain open in the usual manner, since everything purchased there is for Chol Hamo’eid and Yom Tov (Shulchan Aruch, Orach Chayim, 539:10).

Thus, according to the Gemara and Shulchan Aruch, a Jew may not open his store for business as usual on Chol Hamo’eid (see Shu”t Chasam Sofer #1, at end). In the modern world, this is a hardship for business owners who may lose regular customers to their competitors who do not observe Chol Hamo’eid. The poskim consider loss of regular customers as a davar ha’avud that allows the business to make some accommodations. Details of this halacha are discussed by the poskim, and each store owner should ask his rav what to do (see Biur Halacha 539:5).

MOVING

Although one could, theoretically, change dwellings in a way that involves no melacha, the move itself is very strenuous and distracting. Therefore, Chazal forbade moving on Chol Hamo’eid (Mishnah, Mo’eid Katan 13a). Sometimes, moving results in an enhancement of Yom Tov, under which circumstances Chazal permitted it. Again, if someone feels that his particular circumstances may be included, he should ask his rav.

EASY WORK

On the other hand, one is permitted to do melacha that does not detract from the atmosphere of Chol Hamo’eid. Therefore, Chazal permitted moving muktzah items on Chol Hamo’eid (Tosafos, Shabbos 22a s. v. Sukkah), since this does not disturb the purpose of the day. Similarly, many poskim permit performing an actual melacha if it involves little effort, even if it does not fulfill any festival purpose (Terumas Hadeshen #153). According to these opinions, one may strike a match or take a photograph on Chol Hamo’eid, even if no festival need is involved. There are poskim who dispute this and permit such activities only to fulfill a festival need (see Shu”t Radbaz #727).

FOOD PREPARATION

Chazal permitted activities that enhance Chol Hamo’eid and Yom Tov, such as cooking and shopping for Yom Tov and traveling for festival purposes. One may grind, select, knead and perform other standard kitchen activities for Yom Tov or Chol Hamo’eid meals, but should not prepare for after Yom Tov.

This presents us with a problem that many people overlook. Since one may not cook on Chol Hamo’eid for after Yom Tov, someone living in Eretz Yisroel who observes one day of Yom Tov may not cook on Chol Hamo’eid for one’s Chutz La’aretz guests the food for Acharon shel Pesach or Simchas Torah of Chutz La’aretz, because these days are no longer Yom Tov for a resident of Eretz Yisroel. Thus, one is cooking on Chol Hamo’eid for after Yom Tov. This can result in an interesting problem. The visiting guests need to be served a special Yom Tov meal on the evening of Acharon shel Pesach or their Simchas Torah, yet the host/hostess, who lives in Eretz Yisroel, may not cook this meal on Chol Hamo’eid.

This problem has a simple solution, if one plans in advance. One can either wait until after Yom Tov is over to begin cooking for the Chutz La’aretz guests, or one may cook a lot on Chol Hamo’eid for Shemini Atzeres (called Simchas Torah in Eretz Yisroel) or the Seventh day of Pesach, making sure to serve something from each course on the Eretz Yisroel’s Simchas Torah (Shemini Atzeres) or Shvi’i shel Pesach. Then one serves the “leftovers” on the last day.

MAASEH HEDYOT, UNSKILLED WORK

Chazal permitted making and repairing items that are needed on Chol Hamo’eid, provided one does not use a skilled method (meleches uman) to do so. For example, one may tune an instrument, if it requires no special skills (Shu”t Shevus Yaakov #25). Shulchan Aruch (540:5) rules that one may build an animal’s trough in an unskilled way. Similarly, one may perform household repairs that serve a festival purpose in an unskilled manner (Shulchan Aruch, Orach Chayim 540:1). However, they may not be performed in a skilled way, unless a financial loss is involved (Shulchan Aruch, Orach Chayim 537:1).

Many years ago, a talmid chacham visited me on Chol Hamo’eid and noticed that one of our front steps was damaged and somewhat dangerous. Ruling that repairing the step is a meleches hedyot, he proceeded to measure the step, purchased a suitable piece of lumber and nailed it in.

However, one may not do skilled work on Chol Hamo’eid. Therefore, one may not develop film (does anybody still do this?), even for a festival purpose, since this is skilled work. However, one may use a digital camera, even though the picture “develops” on Chol Hamo’eid, since no skill is involved. Similarly, one may not repair shoes on Chol Hamo’eid, since this is skilled work. Theoretically, one may repair them in an unskilled way or with a shinui, meaning in an unusual way; however, neither of these methods is a practical way to repair shoes. As we will see later, one may not have a gentile shoemaker repair them either.

MAY I REPAIR A GARMENT FOR YOM TOV WEAR?

One may repair a torn garment in order to wear it on Yom Tov or Chol Hamo’eid, but only if one sews it in an unusual way or it is sewn by an unskilled person (Mishnah Mo’eid Katan 8b). In this instance, Chazal permitted the use of a shinui (doing something in an unusual way) for the sake of Yom Tov or Chol Hamo’eid. However, a skilled person may not sew in a normal way, even to fulfill a festival need.

Why did Chazal draw a distinction between skilled and unskilled work, and with a shinui and without? Does requiring the use of a shinui to repair a garment enhance the spirit of Yom Tov?

It appears that Chazal felt that regulating how one performs this activity reminds a person that today is Chol Hamo’eid, even while engaged in a melacha activity. This enhances the spirit of Yom Tov that should imbue all the days of Chol Hamo’eid.

“A WORKER WHO DOES NOT HAVE FOOD TO EAT”

Chazal permitted a worker who cannot provide his family with meat and wine for Yom Tov to work on Chol Hamo’eid (Biur Halacha 545:3; cf., however, the Magen Avraham 542:1, who says that only a worker who cannot provide bread for Yom Tov may work.) It is self-understood why permitting this melacha enhances Yom Tov.

DAVAR HA’AVUD, FINANCIAL LOSS

One of the situations where Chazal permitted working on Chol Hamo’eid is when financial loss will result, if the job waits until after Yom Tov. This is allowed, because otherwise a person may worry about his loss and spoil his simchas Yom Tov (Ritva, Mo’eid Katan 13a).

Another application of preventing financial loss is that one may repair a broken lock or a broken alarm system on Chol Hamo’eid (Mishnah Mo’eid Katan 11a). Similarly, someone may remove a stain from a garment that might become ruined. An employee may go to work on Chol Hamo’eid, if taking vacation will jeopardize his job. However, if he can take unpaid vacation on Chol Hamo’eid without jeopardizing his job, he may not work.

Someone may purchase an item that he will definitely need after Yom Tov, if the item is on sale during Chol Hamo’eid. Poskim conclude that this is considered a davar ha’avud (Shulchan Aruch, Orach Chayim 539:9).

Because of davar ha’avud, the Mishnah (Mo’eid Katan 2a) permits watering an irrigated field on Chol Hamo’eid, if a week without water will harm the growing produce. However, one may not irrigate a field that receives adequate rain, even though it benefits considerably from additional water. The latter situation is one of creating profit, for which I may not do melacha on Chol Hamo’eid; one may do melacha only to avoid loss and not to avoid loss of profit (Shulchan Aruch, Orach Chayim 537:1). Thus, although one may not engage in commercial activity in order to generate new business, one may service existing customers.

The rationale for distinguishing between loss and potential profit is that people become upset when they lose something they already own and this then disturbs their Yom Tov, but people are bothered much less when they lose potential profit.

LAUNDRY

Chazal prohibited laundering, shaving and haircutting on Chol Hamo’eid, precisely in order to enhance Yom Tov. In earlier days, people did their laundry and shaved only occasionally and may have postponed doing them before Yom Tov. To enhance Yom Tov observance, Chazal prohibited laundering, shaving and haircutting on Chol Hamo’eid to guarantee that people would make sure to attend to such things before Yom Tov.

Chazal permitted laundering handkerchiefs and children’s clothes, since, even if they are washed before Yom Tov, they get soiled very quickly (Mishnah Mo’eid Katan 14a; Shulchan Aruch, Orach Chayim 534:1).

Many poskim permit removing a spot from a garment on Chol Hamo’eid, contending that this was not included in the gezeirah. However, one may not have this garment dry cleaned, even at a gentile’s shop, since this would, indeed, violate the gezeirah against doing laundry. One may iron, because it is not included in the gezeirah (Shulchan Aruch, Orach Chayim 541:3). However, one may not make a new pleat, because it involves skilled work [meleches uman] (Magen Avraham 541:5).

WORK THROUGH A GENTILE

May a gentile do a type of work on my behalf on Chol Hamo’eid that Chazal prohibited me to do myself?

In general, if I may not do something myself on Chol Hamo’eid, I may not have a gentile do it, either (Mo’eid Katan 12a; Shulchan Aruch, Orach Chayim 543:1). However, if the non-Jew is a contractor paid by the job, there are some situations when I may allow him to work on Chol Hamo’eid.

WHY IS THIS CASE DIFFERENT?

When I pay someone by the job, it is halachically viewed as if he is working for himself and not for me. Therefore, when I hire a non-Jewish contractor and he chooses to work on Shabbos or Chol Hamo’eid, it is not considered that someone is working for me on these holy days. I may, therefore, allow him to work on Chol Hamo’eid, provided no one thinks that he is my employee.

Therefore, if I meet the following conditions, I need not prevent the gentile from working on Chol Hamo’eid:

1. I pay him a flat fee to complete the job, not an hourly or daily wage.

2. I hire him before Yom Tov and I do not instruct him to work on Chol Hamo’eid.

3. The gentile performs the work in a way that other Jews do not know that he is working for me. Thus, the gentile must work on his own premises and in a way and place that no one knows that he is working for a Jew.

I will explain this halacha with an actual case: Friedman’s Department Store, which is located outside a Jewish community, retains Tim McCartney as a contract gardener to maintain the lawn and hedges around the store. Must Mr. Friedman insist that his gentile gardener not work on Shabbos, Yom Tov, Chol Hamo’eid, even when it fits his regular routine?

The halacha is that Mr. Friedman may allow Tim to work on Shabbos or Yom Tov, but must insist that he refrain on Chol Hamo’eid.

HOW CAN CHOL HAMO’EID BE STRICTER THAN SHABBOS?

Since Friedman’s Department Store is not within walking distance to any Jewish community, we may assume that no observant Jew will see Tim trimming the hedges on Shabbos and Yom Tov and think that Mr. Friedman hired him to work on Shabbos or Yom Tov. Therefore, since Tim is a contractor he may do the work (Mo’eid Katan 12a; Shulchan Aruch, Orach Chayim 244:1).

However, on Chol Hamo’eid, since it is permitted to travel, a frum Jew might indeed see Tim mowing Friedman’s lawn and think that a Jew hired Tim to work on Chol Hamo’eid. Therefore, Tim may not mow the lawn or trim the hedges on Chol Hamo’eid (Mo’eid Katan 12a; Shulchan Aruch, Orach Chayim 543:2). (The irony is that he may do so on Shabbos or Yom Tov since we can assume that no frum Jew will be in this neighborhood!)

Chol Hamo’eid provides many unique opportunities to experience our special relationship with Hashem. When we observe it properly, we demonstrate the tremendous os between Hashem and us. May we always merit demonstrating Hashem’s presence amongst us and in His world!!

Second Day of Rosh Hashanah

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Question #1: Second Day?!

“Is it universally accepted that everyone in Eretz Yisroel is required to observe two days of Rosh Hashanah?”

Question #2: Second Day Haftarah

“Why do we read the specific haftarah that we do on the second day of Rosh Hashanah?”

Question #3: Second Day of Judgment!?

“How can our tefillos refer to the second day of Rosh Hashanah as the ‘Day of Judgment,’ when we were already judged on the first day?”

Introduction:

The Torah describes Rosh Hashanah as a one-day holiday that falls on the first day of the seventh month, the date that is Rosh Chodesh Tishrei. Yet, as we all know, we observe two days of Rosh Hashanah.

Each of the opening three questions notes something anomalous concerning this concept of two days of Rosh Hashanah, although, as we will see, the answers to these questions are not closely related to one another. Before discussing the opening questions, I need to provide some introduction. Let us enter a time machine and bring ourselves back to the era when there was a functioning Sanhedrin.

Among the numerous and multifaceted responsibilities of the Sanhedrin, also called by its proper Hebrew name, the Beis Din Hagadol, was overseeing the Jewish calendar. In that era, the determination of whether Rosh Chodesh would be on the thirtieth or on the thirty-first day (counting from the previous Rosh Chodesh) was uncertain, until the head of the Sanhedrin, called the nasi, declared it such. The Beis Din did not declare the thirtieth day as Rosh Chodesh until two witnesses testified that they had seen the new moon. Only after the witnesses were cross-examined by the Beis Din, and their testimony was analyzed carefully, did the Beis Din declare the thirtieth day to be Rosh Chodesh.

(By the way, the Beis Din was quite certain as to when the new moon occurred, where it could be located in the sky and whether the testimony of the witnesses was accurate. Notwithstanding that the Beis Din had all this information, the Torah requires eyewitness testimony of a sighting of the new moon. The witnesses and the Beis Din are fulfilling a mitzvah min haTorah by using this system to “determine” the new moon, notwithstanding that no new technical information is gleaned from the witnesses’ testimony.)

During this era, anyone not within walking distance of the Sanhedrin would be uncertain whether Elul was 29 or 30 days long, and, therefore, would also be uncertain whether Rosh Hashanah is the 30th or the 31st day after Rosh Chodesh Elul. Because of this uncertainty, everyone observed two days of Rosh Hashanah. The only possible exception was the town in which the Beis Din Hagadol met, where they would be certain during Rosh Hashanah which day had been chosen.

Sometimes, even the town in which the Beis Din Hagadol met was required to observe two days Rosh Hashanah, not because of an uncertainty, but because of a takanas chachamim. The Mishnah (Rosh Hashanah 30b) explains that once, when the Beis Hamikdash still stood, the witnesses attesting to the new moon appeared in Beis Din late in the afternoon of Rosh Hashanah. By the time the Beis Din had declared that day to be Rosh Chodesh and Rosh Hashanah, the afternoon korban tamid had already been offered. Since this korban had been offered before any declaration that the day was Rosh Chodesh, the Levi’im accompanied the korban by singing the shirah of the weekday korban. Result: the shirah specific for Rosh Hashanah was not sung that day as accompaniment to the daily korban.

To make sure that this situation did not recur, Chazal instituted that, should witnesses arrive after the afternoon korban was offered, Beis Din would not accept them, thus automatically postponing Rosh Hashanah to the next day, so that the correct shirah would

 be sung on that day. Although once Beis Din knew that they would not accept witnesses, the first day was no longer Rosh Hashanah, Chazal required that it be kept as such (as a takanah) so that, in the future, people would not be lax in observing the assumed day of Rosh Hashanah.

What is significant about this takanah is that now there could be instances when Chazal declared two days of Rosh Hashanah. Until this time, observing two days of Rosh Hashanah had always been only a result of uncertainty, because of lack of local knowledge about the decision of the Beis Din. Henceforth, observing two days of Rosh Hashanah was sometimes a takanas chachamim.

We realize that all of these reasons made it impossible for local schools to send out annual Jewish calendars as fundraisers. But the schools in this era had a different and much more efficient method to raise necessary funds. This is a topic we will discuss at some time in the future.

Changes because of permanent calendar

Thus far, we have explained the historical background to the observance of two days of Rosh Hashanah. However, today we do not wait for the Sanhedrin to determine which day is Rosh Chodesh. Hillel Hanasi (not to be confused with his better-known and much earlier ancestor, Hillel Hazakein), realizing that the Roman persecutions of his time (the third century C. E.), would soon make it impossible for Sanhedrin to function in Eretz Yisroel, created a predetermined calendar. His incredibly accurate and vastly simplified calendar allowed someone equipped with paper, pencil and a reasonable faculty for numbers to calculate the calendar, until the Sanhedrin again exists. In other words, Hillel set the Jewish calendar on autopilot.

(This is not halachically preferable. Ideally, the decisions germane to the calendar should be based upon witnesses and the monthly input of the Sanhedrin. However, Hillel Hanasi’s system is permitted when using the Sanhedrin is not an option.)

With the implementation of the new calendar not dependent on month-by-month decisions of Beis Din, the following observation was raised: At this point in history, people in chutz la’aretz can calculate definitively which day is Yom Tov. If so, there should be no reason to observe two days of any Yom Tov anymore (Beitzah 4b).

The Gemara explains that a special takanah was instituted at this time in history. The Beis Din in Eretz Yisroel sent a message to those in chutz la’aretz to continue observing a second day of Yom Tov, which is usually called yom tov sheini shel galiyos, following their prior custom, notwithstanding that the reason for the observance no longer applies. Rashi explains that the reason for the new takanah is that persecutions might cause Jews to forget the information necessary to figure out the calendar. The likelihood of a Jew eating chometz on Pesach unwittingly, or violating other serious prohibitions, is reduced when keeping two days of Yom Tov. In other words, although keeping an extra day of Yom Tov was originally for a completely different concern, once the custom had been established, Chazal required the continuation of the observance, for a basically unrelated reason.

Two days of Rosh Hashanah

Now that we have plowed through this extensive introduction, we have yet to analyze why the holiday of Rosh Hashanah has two days even in Eretz Yisroel. When the determination of Rosh Chodesh was in the hands of the Sanhedrin, we understand the need to observe two days of Rosh Hashanah – people were uncertain which day had been established as Rosh Hashanah, and therefore they were required to observe both. However, now that our calendar can be calculated in advance, why should those who live in Eretz Yisroel be observing two days of Rosh Hashanah?

Indeed, the rishonim dispute whether there is a requirement to keep two days of Rosh Hashanah in Eretz Yisroel, once the calendar is on autopilot as a result of Hillel Hanasi’s new takanah.

The Rif rules that, in Eretz Yisroel, two days of Rosh Hashanah should be observed. The Baal Hama’or not only questions why this should be true, but contends that, prior to the Rif’s ruling, the practice in Eretz Yisroel had been to observe only one day of Rosh Hashanah. This was changed, he claims, when disciples of the Rif arrived in Eretz Yisroel in the twelfth century and began promulgating his opinions. They changed the minhag of observing only one day of Rosh Hashanah in Eretz Yisroel, which the Baal Hama’or contends is the correct practice.

Upon what is this dispute dependent? It appears that the Baal Hama’or was of the opinion that while the communities in chutz la’aretz requested — and were denied — permission to drop their observance of the second day of Yom Tov, this discussion did not affect those in Eretz Yisroel, even on the one Yom Tov when they observed two days, Rosh Hashanah.

However, there are allusions in the Gemara that Rosh Hashanah is now a two-day observance. The Rif, and those who followed his approach, concluded that, since at one point there had been a takanah to observe two days of Rosh Hashanah, this takanah remained in place.

Why is Yom Kippur different?

If those who live in chutz la’aretz are required to observe two days of Sukkos because of the uncertainty which day is the proper Yom Tov, should not Yom Kippur, also, be kept for two consecutive days?

The reason why Yom Kippur is treated differently is simple: for most people, fasting two consecutive days constitutes pikuach nefesh, a life-threatening situation. Just as we override Shabbos to provide medical care for someone who might be in a life-threatening situation, and we permit a person for whom fasting for even one day is life-threatening to eat on Yom Kippur, so do we consider two days of Yom Kippur observance as life-threatening for most people. Therefore, no community ever observed two consecutive days of Yom Kippur.

There is another reason to be lenient. Elul was virtually always a 29-day month. It could happen in any given year that Elul would have thirty days, and therefore Rosh Hashanah and Sukkos were observed as two days of Yom Tov. However, because of the obvious difficulty of fasting two consecutive days, the practice regarding Yom Kippur was to assume that Elul was 29 days, and that the day we call the tenth of Tishrei is the correct Yom Kippur.

Second Day Haftarah

At this point, let us examine the second of our opening questions: “Why do we read the specific haftarah that we do on the second day of Rosh Hashanah?”

The haftarah read on the second day of Rosh Hashanah is in the book of Yirmiyahu and begins with the words: Koh amar Hashem. There is no obvious allusion to Rosh Hashanah in this haftarah, yet there appears to have been a takanah of Chazal to read this haftarah on this day.

Before proceeding to discuss this question, we need to explain the history of why we read the haftarah, altogether. The early halachic authorities report two reasons for the establishment of the reading of the haftarah. According to one approach, during the period of the second Beis Hamikdash, at the times of the persecutions prior to the Chanukah story, the Seleucid Greek emperor Antiochos Epiphanes was bent on destroying Judaism. Strongly assisted by assimilated Jewish elements, called the misyavnim, literally, “those who made themselves into Greeks,” or Hellenized Jews, Antiochos banned virtually all shemiras hamitzvos, until the remnant of Torah-true Jews rebelled. Eventually, they drove his empire out of the Holy Land, which had not even been their objective.

During the persecutions that were the run-up to their rebellion, Antiochos had banned the reading of the Torah, kerias haTorah. As a response to his persecutions, Chazal implemented several takanos to retain Jewish practices. One of these takanos was the introduction of the reading of the haftarah, which were selections of Nevi’im. On Shabbos, Yom Tov and fast days, the haftarah was read in shul at the point in the prayers when the Torah should have been read (Avudraham; Levush; Tosafos Yom Tov, Megillah 3:4).

A very different reason for reading haftarah on Shabbos and Yom Tov is that an early practice was for Jews to gather daily after they completed the morning davening and study together Torah, prophets, and other Torah subjects for a considerable amount of time, before they went to work. As generations passed, it became increasingly difficult to devote this amount of time to studying Torah, and the custom was abandoned on weekdays, but still maintained on Shabbos and Yom Tov, when people did not go to work (Teshuvos Hage’onim #55; Sefer Hapardes, page 306; Shibolei Haleket #44).

According to either approach, at the time that the takanah of haftarah was initiated, the individual who was called upon to read the haftarah could choose any reading he preferred. It was recommended to read something that was associated with the Torah reading of the day, either the one that had been missed (according to the first approach) or that actually was read (according to the second).

On certain dates of the year, Chazal instituted that specific haftarah portions be read (Mishnah, Megillah 30b; Maseches Sofrim 17; Gemara Megillah 31a). Among these instructions, the Gemara (Megillah 31a) mentions that on the second day of Rosh Hashanah the haftarah should be Habein yakir li Efrayim, from the 31st chapter of the book of Yirmiyahu. Rashi notes that this posuk quotes the expressions zochor ezkerenu, “I will certainly remember,” and racheim arachamenu,“I will certainly have mercy,” both concepts that are very appropriate to Rosh Hashanah.

Peculiarity about this haftarah

To the best of my knowledge, all of Klal Yisroel includes the posuk Habein yakir li Efrayim in the haftarah of the second day of Rosh Hashanah, as mentioned in the Gemara; however, there are different ways to read this haftarah. Ashkenazic and most other practices begin the haftarah with the words, Koh amar Hashem motzo chein bamidbar, and close it with the posuk, Habein yakir li Efrayim. Virtually all customs — Ashkenazi, Sefardi, Edot Hamizrah, Italian, and Yemenite — follow this basic approach, although some communities begin the haftarah one posuk earlier.

However, all of these customs appear to be strange. Whenever the Mishnah or Gemara identifies a reading by its words, these are the first words that we recite as part of that reading. (On occasion, it is the second posuk, and the Mishnah or Gemara uses the word beginning the second posuk because the first posuk may be Vayedabeir Hashem el Moshe Leimor or a similar wording that does not identify clearly what we are to read.) However, in the instance of this haftarah, virtually all customs end with the reading of Habein yakir li Efrayim, as the last posuk.

The only custom I discovered that seems to follow the Gemara literally and, it would seem, more accurately, is the ancient Greek custom, called Minhag Romaniot (so called because it was the practice of the Jewish communities who lived under the rule of the Eastern Roman Empire, which later came to be known as the Byzantine Empire). Unfortunately, the practices of Minhag Romaniot are virtually extinct. To the best of my knowledge, there are only three congregations anywhere in the world that still follow Romaniot practice, one in Crete, a second in Turkey, and a third in New York, and none has significant observant membership that follows Minhag Romaniot.

We are forced to explain that our common custom assumes that the Gemara is requiring simply to include the posuk of Habein yakir li Efrayim as part of the haftarah for the second day of Rosh Hashanah, and the accepted custom includes several other beautiful themes mentioned by the prophet Yirmiyahu that are appropriate to Rosh Hashanah, including the unique relationship of Hashem and the Jewish people, the promise that Hashem will return us, and the moving account of Rachel’s successful beseeching Hashem on behalf of her children. The last of these themes has a special relationship with Rosh Hashanah because of the statement of the Gemara that Rachel was one of the women remembered by Hashem on Rosh Hashanah, the other two being Sarah and Chana, who are the subjects of the first day’s Torah reading and haftarah, respectively.

Second Day of Judgment!?

At this point, let us address the last of our opening questions: “How can the second day of Rosh Hashanah be called the ‘Day of Judgment,’ when we were judged already on the first day?”

As we can well imagine, we are not the first to ask this question. Allow me to provide an introduction from Tanach that will help to explain the approach presented by the Zohar:

After Shlomoh Hamech’s lengthy prayer dedicating the Beis Hamikdash, he blessed the people by reciting the following: May these words of mine with which I beseech Hashem be close to Hashem day and night, to accomplish the justice of His servant and the justice of His people, each and every day (Melachim I 8:59).

The posuk implies that there are two different types of justice, one of Hashem’s servant, the king, and the other applied to the people, as a whole. The proof that there are two types of judgment is that the word justice is repeated in the posuk. The Zohar (Parshas Pinchas) refers to these types of justice as the “upper judgment” and the “lower judgment,” and that these are performed by two different heavenly courts. The upper judgment, which is the harsher one, is performed on the first day of Rosh Hashanah and the “lower judgment,” which is softer, is performed on the second day. The Zohar states that these two judgments are “correlated” or “combined,” and are both “existent,” whatever these terms mean in Kabbalistic terminology.

Rav Dessler intimates that the difference between these two types of judgment is the extent to which a person makes serving Hashem the central focus in his life. Someone who has diverted the focus of his daily life from serving Hashem must rely on his relationship with those greater than he is. This is the “lower judgment” that this person undergoes on the second day, with a greater chance of success.

Conclusion

The Torah refers to the Yomim Tovim as mo’ed. Just as the term ohel mo’ed refers to the tent in the desert which served as a meeting place between Hashem and the Jewish people, so, too, a mo’ed is a meeting time between Hashem and the Jewish people (Hirsch, Vayikra 23:3 and Horeb).

We understand well why our calendar involves use of the solar year – after all, our seasons, and the appropriate times for our holidays, are based on the sun. But why did the Torah insist that our months follow the moon and that our holidays depend, also, on the moon’s phases and rotation? It seems that we could live fine without months that are dependent on the moon’s rotation around the earth!

An answer to this question is that the waxing and waning of the moon is symbolic of our own relationship with Hashem – which also sometimes waxes and sometimes wanes. Yet, we know that just as the moon, after its waning and almost disappearing, always renews itself, so, too, we have the capacity to grow and improve, in accordance with how much we allow Hashem into our world and into our actions.

A Shmittah Glossary

This Shabbos is parshas Ki Savo, 10 days before Rosh Hashanah of shmittah year.

We are at the end of the sixth year of the shmittah cycle. Most chutz la’aretz residents are not that familiar with the laws of shmittah that will affect those who live in Eretz Yisroel every day next year. Actually, the laws can and do affect people living in chutz la’aretz also. This article will focus on explaining a basic glossary of shmittah-related terms.

Among the terms that we will learn are the following:

Biur

Havla’ah

Heter mechirah

Heter otzar beis din

Issur sechorah

Kedushas shvi’is

Ne’evad

Otzar beis din

Pach shvi’is

Sefichin

Shamur

Tefisas damim

First, let us discuss the basics:

Basic laws of the land

In Parshah Behar, the Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah. We are prohibited from plowing, planting or working the land of Eretz Yisroel in any way and must leave our land fallow. It is even prohibited to have a gentile work a Jew’s land (Avodah Zarah 15b), just as one may not hire a gentile to do work on Shabbos that a Jew may not do. The owner of a field or orchard must treat whatever grows on his land as ownerless, allowing others to enter his field or orchard to pick, without charge, as much as their families can use. The landowner himself also may pick as much as his family will eat (see Rambam, Hilchos Shmittah 4:1).

The landowner should make sure that others know that they may help themselves to the produce. One may not sell, in a business manner, the produce that grows on its own.

Kedushas shvi’is

The Torah declared vehoysah shabbas ha’aretz lochem le’ochlah, “the produce of the shmittah should be used only for food” (Vayikra 25:6), thereby imbuing the fruits and vegetables that grow in shmittah year with special sanctity, called kedushas shvi’is. There are many ramifications of this status, such as, the produce that grows during shmittah year should be used only for consumption and should be eaten (or drunk) only in the usual way. For example, one may not cook foods that are usually eaten raw, nor may one eat raw produce that is usually cooked (Yerushalmi, Shvi’is 8:2; Rambam, Hilchos Shvi’is 5:3). One may not eat raw shmittah potatoes, nor may one cook shmittah cucumbers or oranges. It would certainly be prohibited to use shmittah corn for gasohol or any other form of biofuel.

Contemporary authorities dispute whether one may add shmittah oranges or apricots to a recipe for roast or cake. Even though the fruit adds taste to the roast or cake, many poskim prohibit this cooking or baking, since these types of fruit are usually eaten raw (Shu”t Mishpat Cohen #85). Others permit this if it is a usual way of eating these fruits (Mishpetei Aretz page 172, footnote 10).

Similarly, juicing vegetables and most kinds of fruit is considered “ruining” the shmittah produce and is prohibited, although one may press grapes, olives and lemons, since the juice and oil of these fruits are considered superior to the fruit itself. Many contemporary authorities permit pressing oranges and grapefruits, provided one treats the remaining pulp with kedushas shvi’is. Even these authorities prohibit juicing most other fruit, such as apples and pears (Minchas Shlomoh, Shvi’is pg. 185).

Food and not feed

One may feed shmittah produce to animals only when it is not fit for human consumption, such as peels and seeds that people do not usually eat (Rambam, Hilchos Shmittah 5:5). Last shmittah, a neighbor of mine, or perhaps his turtle, had a problem: The turtle is fond of lettuce, and won’t eat grass. One may feed animals grass that grew in Eretz Yisroel during shmittah, but one may not feed them lettuce that grew during shmittah.

Jewish consumption

Shmittah produce is meant for Jewish consumption; one may not give or sell kedushas shvi’is produce to a gentile, although one may invite a gentile to join your meal that includes shmittah food (Rambam, Hilchos Shmittah 5:13 as explained by Mahari Korkos).

Although some authorities rule that there is a mitzvah to eat shmittah produce, most contend that there is no obligation to eat shmittah food – rather, the Torah permits us to eat it (Chazon Ish, Hilchos Shvi’is 14:10).

Don’t destroy edibles

One may not actively destroy shmittah produce suitable for human consumption. Therefore, one who has excess shvi’is produce may not trash it in the usual way.

Peels that are commonly eaten, such as apple peels, still have kedushas shvi’is and may not simply be disposed. Instead, we place these peels in a plastic bag and then place the bag in a small bin or box called a pach shvi’is, where it remains until the food is inedible. When it decomposes to this extent, one may dispose of the shmittah produce in the regular garbage.

Why is this true?

Once the shmittah produce can no longer be eaten, it loses its kedushas shvi’is. Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the many mitzvos where this principle applies. There are several other mitzvos where, in theory, this rule applies – meaning that the items have kedushah that governs how they may be consumed, but once they are no longer edible, this kedushah disappears. The mitzvos that this rule applies to are terumah, challah, bikkurim, revai’i and maaser sheini. However, although this rule applies to these mitzvos, in practice we cannot observe it since produce that has kedusha cannot be consumed by someone who is tamei (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11). This explains why most people are unfamiliar with the rules of kedushas shvi’is.

When eating shmittah food, one need not be concerned about the remaining bits stuck to a pot or an adult’s plate that one usually just washes off; one may wash these pots and plates without concern that one is destroying shmittah produce. However, the larger amounts left behind by children, or leftovers that people might save should not be disposed in the garbage. Instead, they can be scraped into the pach shvi’is.

Issur sechorah – commercial use

One may not harvest the produce of one’s field or tree in order to sell it in commercial quantities or in a business manner (Tosefta, Shvi’is 5:7; Rambam, Hilchos Shmittah 6:1). For example, shmittah produce may not be sold by weight or measure (Mishnah, Shvi’is 8:3), nor sold in a regular store (Yerushalmi, Shvi’is 7:1).

Tefisas damim

If one trades or sells shmittah produce, the food or money received in exchange becomes imbued with kedushas shvi’is. This means that the money should be used only to purchase food that will itself now have the laws of shmittah produce. The original produce also maintains its kedushas shvi’is (Sukkah 40b).

Havla’ah

At this point, we must discuss a very misunderstood concept called havla’ah, which means that one includes the price of one item with another. The Gemara (Sukkah 39a) describes using havla’ah to “purchase” an esrog that has shmittah sanctity, without the money received becoming sanctified with kedushas shvi’is. For example, Reuven wants to buy an esrog from Shimon; however, Shimon does not want the money he receives to have kedushas shvi’is. Can he avoid this occurring?

Yes, he may. If Shimon sells Reuven two items at the same time, one that has kedushas shvi’is and the other does not, he should sell him the item that does not have kedushas shvi’is at a high price, and the item that has kedushas shvi’is accompanies it as a gift. This method works, even though everyone realizes that this is a means of avoiding imbuing the sales money with kedushas shvi’is.

Shamur and ne’evad

According to many (and perhaps most) rishonim, if a farmer did not allow people to pick from his fields, the shmittah produce that grew there becomes prohibited (see Ra’avad and Ba’al Ha’maor to Sukkah 39a). This produce is called shamur. Similarly, many authorities prohibit consuming produce that was tended in a way that violated the agricultural laws of shmittah (Ramban, Yevamos 122a). This produce is called ne’evad.

Shmittah exports

The Mishnah (Shvi’is 6:5) prohibits exporting shmittah produce outside Eretz Yisroel. Some recognized authorities specifically permit exporting shmittah wine and esrogim, although the rationales permitting this are beyond the scope of this article (Beis Ridbaz 5:18; Tzitz Hakodesh, Volume 1 #15:4). This approach is the basic halachic reason to permit the export of esrogim that grow during shmittah next year for Sukkos, 5783. (The esrogim for this coming year will all be from the pre-shmittah crop and not involve any shmittah concerns.)

Sefichin

As explained in last week’s article, the prohibition of sefichin does not refer to perennials that do not require planting every year. Although trees and other perennials definitely thrive when pruned and cared for, most will produce even if left unattended for a year and the farmer has less incentive to violate shmittah by tending his trees.

Thus, tree fruits, nuts, strawberries and bananas do not involve the prohibition of sefichin. (If they grew in a field whose owner was not observing shmittah, they might involve the prohibition of shamur.)

Biur shevi’is

At this point in our discussion, we need to explain the concept of biur shvi’is. The word biur literally means elimination, as in biur chometz, which refers to the eradication of chometz performed each year before Pesach. One of the laws that applies to shmittah produce is that once a specific species is no longer available in the field, one can no longer keep shmittah produce from that species in one’s possession. At this point, one must perform a procedure called biur shvi’is. Although there is a dispute among the rishonim as to the exact definition and requirements of biur shvi’is, we rule that it means declaring ownerless (hefker) any shmittah produce in one’s possession (Ramban, Vayikra 25:7; cf. Rashi, Pesachim 52b s.v. mishum and Rambam, Hilchos Shmittah 7:3 for alternative approaches.) For example, let us say that I picked shmittah apricots and canned them as jam. When no more apricots are available in the field, I must take the remaining jam and declare it hefker in the presence of three people (Yerushalmi, Shvi’is 9:5). I may do this in front of three close friends who will probably not take the jam after my declaration; it is sufficient that they have the right to take possession. If someone fails to perform biur, the shmittah produce becomes prohibited.

Otzar beis din

What is an otzar beis din? Literally, the words means “a storehouse operated by beis din.” Why would a beis din be operating a storehouse? Did they need to impound so much merchandise while doing litigation? No, let me explain.

As mentioned above, the owner of an orchard may not harvest his produce for sale, and he must allow individuals to help themselves to what their family may use. But what about people who live far from the orchard? How will they utilize their right to pick shmittah fruit?

Enter the otzar beis din to help! The beis din represents the public interest by hiring people to pick and transport the produce to a distribution center near the consumer. Obviously, no one expects the pickers, sorters, truckers, and other laborers to work as unpaid volunteers; they are also entitled to earn a living. Similarly, the managers who coordinate this project are also entitled to an appropriate wage for their efforts. Furthermore, there is no reason why beis din cannot hire the owner of the orchard to supervise this massive project, paying him a wage appropriate to his significant skills and experience in knowing how to manage this operation. This is all legitimate use of an otzar beis din.

Who pays for otzar beis din services? The otzar beis din divides its costs among the consumers. The charges to the user should reflect the actual expenses incurred in bringing the products to the consumers, and may not include any profit for the finished product (Minchas Shlomoh, Shvi’is 9:8 pg. 250). Thus, otzar beis din products should cost less than regular retail prices for the same items, since there should be no profit margin. (See Yerushalmi, Shvi’is 8:3 that shvi’is produce should be less expensive than regular produce.)

Please note that all the halachos of kedushas shevi’is apply to otzar beis din produce. Also note that acquiring from an otzar beis din is not really “purchasing” since you are not buying the fruit, but receiving a distribution – your payment is exclusively to defray operating costs. Therefore, the money paid for otzar beis din produce does not have kedushas shvi’is, because it is compensation for expenses and not in exchange for the shmittah fruit (Minchas Shlomoh, Shvi’is 9:8 pg. 250).

Produce still in the possession of an otzar beis din at the time of biur is exempt from biur. The reason is that this product is still without an owner – the otzar beis din is a distribution center, not an owner. However, produce originally distributed through an otzar beis din and now in private possession must be declared hefker.

Heter otzar beis din

The modern term “Heter otzar beis din” is used pejoratively. The purpose of an otzar beis din is to service the consumer, not the producer, as I explained above. Unfortunately, unscrupulous individuals sometimes manipulate the rubric of otzar beis din to allow a “business as usual” attitude and violate both the spirit and the halacha of shmittah. If the farmer is operating with a true otzar beis din, he will allow people to enter his field and help themselves to the produce. If he bars people, then he is violating the basic laws of shmittah and his produce distribution is not according to otzar beis din principles. Similarly, if the field owner treats the produce as completely his own and charges accordingly, this contradicts the meaning of otzar beis din. These cases are disparagingly referred to as heter otzar beis din; meaning they reflect abuse of the concept of otzar beis din.

Conclusion

Those living in chutz la’aretz should be aware of the halachos of shvi’is and identify with this demonstration that the Ribbono Shel Olam created His world in six days, thereby making the seventh day and the seventh year holy.

The Heter Mechirah Controversy

In a few short weeks, we will begin shmittah year. In preparation, I present this article.

Photo by Rodolfo Belloli from FreeImagesOLYMPUS DIGITAL CAMERA

Several shmittah cycles ago, I was working as a mashgiach for a properly run American hechsher. One factory that I supervised manufactured breading and muffin mixes. This company was extremely careful about checking its incoming ingredients: George, the receiving clerk who also managed the warehouse, kept a careful list of what products he was to allow into the plant and what kosher symbols were acceptable.

On one visit to the plant, I noticed a problem, due to no fault of the company. For years, the company had been purchasing Israeli-produced, freeze-dried carrots with a reliable hechsher. The carrots always arrived in bulk boxes, with the Israeli hechsher prominently stamped in Hebrew and the word KOSHER prominently displayed, in English. George, who always supervised incoming raw materials, proudly showed me through “his warehouse” and noted how he carefully marked the arrival date of each new shipment. I saw crates of the newest shipment of Israeli carrots, from the same manufacturer, and the same prominently displayed English word KOSHER on the box. However, the Hebrew stamp on the box was from a different supervisory agency, one without the same sterling reputation. The reason for the sudden change in supervisory agency was rather obvious, when I noted that the Hebrew label stated very clearly “Heter Mechirah.”

Let me explain the halachic issues that this product entails.

The Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah and prohibits working the land of Eretz Yisroel. During that year, one may not plough, plant or work the field in any way. Furthermore, the farmer must treat whatever grows on his land as ownerless, allowing others to pick and keep his fruit. Many laws apply to the produce that grows during shmittah, including, for example, that one may not sell the produce in a business manner, nor may one export it outside Eretz Yisroel.

For the modern farmer, observing shmittah is indeed true mesiras nefesh, since, among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his citrus or avocado crop to a distributor in Europe who sells his produce throughout the European Community. If he informs his customer that he cannot export his produce during shmittah year, he risks losing the customer in the future.

Of course, a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone. Therefore, a sincerely observant farmer obeys the Torah dictates, knowing that Hashem attends to all his needs. Indeed, recent shmittos have each had numerous miracles by which observant farmers were rewarded in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

Unfortunately, the carrot farmer here was not committed to this level of bitachon and, instead, explored other options, deciding to rely on heter mechirah. He soon discovered that his regular, top-of-the line hechsher would not allow this, so he found an alternative hechsher that allowed him to be lenient, albeit by clearly forewarning customers who may consider this product non-kosher. Although he realized that sales would suffer without his regular hechsher, he figured that selling some product is better than selling none.

WHAT IS HETER MECHIRAH?

The basic concept of heter mechirah is that the farmer sells his land to a gentile, who is not required to observe shmittah. Since a gentile now owns the land, the gentile may farm the land, sell its produce and make a profit. The poskim dispute whether a Jew may work land owned by a gentile during shmittah (Tosafos, Gittin 62a s.v. ein odrin, prohibits; Rashi, Sanhedrin 26a s.v. agiston, permits).

IS THIS ANY DIFFERENT FROM SELLING ONE’S CHOMETZ FOR PESACH?

Although some poskim make this comparison (Shu’t Yeshuos Malko, Yoreh Deah #53), many point out differences between selling chometz to a gentile and selling him land in Eretz Yisroel. Indeed, although the Mishnah (Pesachim 21a) and other early halachic sources (Tosefta, Pesachim 2:6) mention selling chometz to a non-Jew before Pesach, no early source mentions selling land in Eretz Yisroel to avoid shmittah (Sefer Hashmittah pg. 71). The earliest source I found discussing this possibility was an eighteenth-century responsum penned by Rav Mordechai Rubyou, the Rosh Yeshivah in Hebron at the time, who discusses the tribulations of a Jew owning a vineyard in Eretz Yisroel in that era (Shu’t Shemen Hamor, Yoreh Deah #4; this sefer was published posthumously in 1793).

HISTORY OF MODERN HETER MECHIRAH

Before explaining the halachic background to the heter mechirah question, I think it is important to understand the historical context of the shaylah.

Rav Yechiel Michel Tukachinski, one of the great twentieth-century poskim of Eretz Yisroel, describes the history and development of the use of heter mechirah. (My source for most of the forthcoming historical material is his work, Sefer Hashmittah.)

The first modern shmittah was in the year 5642 (1882), when there was a mere handful of Jewish farmers in Israel, located in Petach Tikvah, Motza and Mikveh Yisroel. The highly observant farmers in these communities were uncompromising in their commitment to keep shmittah in full halachic detail. [Apparently, at the same time, there were some Sefardi farmers in Israel whose rabbonim did allow them to sell their fields to a gentile for the duration of shmittah (see Shu’t Yeshuos Malko, Yoreh Deah #53; Shu’t Yabia Omer 3:Yoreh Deah #19:7).]

By the next shmittah, 5649 (1889), there was already a much larger Jewish agricultural presence in Eretz Yisroel. Prior to that shmittah year, representatives of the developing Israeli agricultural communities approached several prominent Eastern European gedolim, claiming that the new yishuv could not survive financially if shmittah was observed fully, and that mass starvation would result. Could they sell their land to a gentile for the duration of shmittah and then plant the land and sell its produce?

THE BEGINNINGS OF A CONTROVERSY

Rav Naftali Hertz, the rav of Yaffo, who also served as the rav of most of the agricultural communities involved, directed the shaylah to the gedolei haposkim of the time, both in Israel and in Europe. The rabbonim in Europe were divided, with many prominent poskim, including Rav Yehoshua Kutno, Rav Yosef Engel and Rav Shmuel Mahliver, approving the sale of the land to non-Jews as a hora’as sha’ah, a ruling necessitated by the emergency circumstances prevailing, but not necessarily permitted in the future. They permitted the heter mechirah, but only with many provisos, including that only non-Jews perform most agricultural work. On the other hand, many great European poskim prohibited this heter mechirah, including such luminaries as the Netziv (Rav Naftali Tzvi Yehudah Berlin, the Rosh Yeshivah of the preeminent yeshiva of the era in Volozhin, Lithuania), the Beis Halevi (3:1; Rav Yosef Dov Halevi Soloveichek), the Aruch HaShulchan (Rav Yechiel Michel Epstein) and Rav Dovid Karliner.

Rav Yitzchak Elchanan Spector, the rav of Kovno, Lithuania, whom many viewed as the posek hador, ruled that Rav Hertz could perform the sale and instructed him to have the great poskim of Yerushalayim actuate the sale.

This complicated matters, since the Ashkenazi rabbonei Yerushalayim universally opposed the heter mechirah and published a letter decrying it stridently. This letter, signed by the two rabbonim of Yerushalayim, Rav Yehoshua Leib Diskin and Rav Shmuel Salant, and over twenty other gedolim and talmidei chachamim, implored the farmers in the new yishuv to keep shmittah steadfastly and expounded on the Divine blessings guaranteed them for observing shmittah. The letter also noted that Klal Yisroel was punished severely in earlier eras for abrogating shmittah (see Avos Chapter 5). As Rashi (Vayikra 26:35) points out, the seventy years of Jewish exile between the two batei hamikdash correspond to the exact number of shmittos that were not observed from when the Jews entered Eretz Yisroel until the exile. The great leaders of Yerushalayim hoped that if Klal Yisroel observed shmittah correctly, this would constitute a collective teshuvah for the sins of Klal Yisroel and would usher in the geulah.

Rav Hertz, who had originally asked the shaylah, was torn as to what to do. Although he had received letters from some of the greatest poskim of Europe permitting the mechirah, the poskei Yerushalayim adamantly opposed it. He decided not to sell the land himself, but arranged mechirah for those who wanted it through the Sefardi rabbonim in Yerushalayim, who had apparently performed this mechirah in previous years.

What happened? Did the Jewish farmers observe the shmittah as instructed by the rabbonei Yerushalayim, or did they rely on heter mechirah? Although the very committed farmers observed shmittah according to the dictates of the gedolei Yerushalayim, many of the more marginally observant farmers acceded to the pressure and relied on heter mechirah. Apparently, many farmers were subjected to considerable financial and social pressure to evade observance of shmittah.

Prior to shmittah year 5656 (1896), Rav Hertz again considered what to do in the coming shmittah and approached the rabbonei Yerushalayim. This time, both Rav Shmuel Salant and Rav Yehoshua Leib Diskin approved the mechirah and even suggested to Rav Hertz how to arrange this mechirah in a halachically approved fashion.

WHAT CHANGED?

Why were the very same rabbonim who vehemently opposed the mechirah seven years earlier not opposed to it this time? Initially, these rabbonim felt that since we had now merited returning to Eretz Yisroel, we should make sure to observe all the mitzvos of Eretz Yisroel without compromise, and evading shmittah with heter mechirah runs totally counter to this spirit. However, upon realizing that few farmers had observed the previous shmittah properly, the feeling of these great gedolim was that without the option of heter mechirah, most farmers would simply conduct business as usual and ignore shmittah completely. Therefore, it was better to permit heter mechirah, while at the same time encourage farmers not to rely on it.

Prior to the next shmittah, in 5663 (1903), Rav Hertz re-asked his shaylah from the rabbonim of Yerushalayim, Rav Shmuel Salant and the Aderes, Rav Eliyahu Dovid Rabinowitz Teumim (Rav Diskin had passed on in the meantime), since the original approval stipulated only that shmittah. These rabbonim felt that there was still a need for heter mechirah in 5663. Rav Hertz, himself, passed away before the heter mechirah was finalized, and his son-in-law, Rav Yosef Halevi, a talmid chacham of note, finalized the mechirah in his stead, following the instructions of the rabbonei Yerushalayim.

Seven years later (5670/1910), Rav Avraham Yitzchak Kook was the rav of Yaffo and continued the practice of the mechirah, while at the same time encouraging those who would observe shmittah correctly to do so. He continued this practice of performing the heter mechirah for the several subsequent shmittos of his life.

In addition, Rav Kook instituted a new aspect to heter mechirah. Prior to his time, the heter mechirah involved that the owner of the farm appointed a rav as his agent to sell the land, similar to what we usually do to arrange selling the chometz. Rav Kook added that a farmer who was not going to observe shmittah but did not appoint a rav to sell his land was included in the mechirah, since it is in his best interest to have some heter when he works his field, rather than totally desecrating the Holy Land in the holy year. Although there is merit in protecting the farmer from his sin, now, a practical question results that affects a consumer purchasing this farmer’s produce. If the farmer did not authorize the sale, perhaps the produce indeed has the sanctity of shmittah. For this latter reason, many individuals who might otherwise accept heter mechirah produce do not rely on this heter.

By the way, although the original heter mechirah specified that gentiles must perform all plowing, planting and harvesting, this provision is no longer observed by some farmers who rely on heter mechirah. Many farmers who rely on heter mechirah follow a “business as usual” attitude once they have dutifully signed the paperwork authorizing the sale. Indeed, who keeps the profits from the shmittah produce, the Jew or the non-Jew to whom he sold his land? One can ask — is this considered a sale?

Another point raised is that, although Chazal also contended with much laxity in observing the laws of shmittah, they did not mention selling the land to evade the mitzvah. This is underscored by the fact that there are indeed precedents where Chazal mention ways to avoid observing mitzvos. For example, the Gemara mentions methods whereby one could avoid separating maaser, for those who want to evade this mitzvah, although Chazal did not approve doing so. Furthermore, when Hillel realized that people were violating the halachos of shmittas kesafim, he instituted the pruzbul. Yet, no hint of avoiding shmittah by selling land to a gentile is ever mentioned, thus implying that there is halachic or hashkafic difficulty with this approach (Sefer Hashmittah pg. 82).

SELLING ERETZ YISROEL

In addition to the question of whether one should evade performing a mitzvah of the Torah, the issue of heter mechirah involves another tremendous halachic difficulty. How can one sell any land of Eretz Yisroel, when the Torah prohibits selling it to a non-Jew (Avodah Zarah 20a), and Chazal prohibit even renting the land (Mishnah, Avodah Zarah 20b)?

Different poskim have suggested various approaches to avoid this prohibition. Some contend that selling land temporarily, with an expressed condition that it return to the owner, preempts the violation (Shu’t Shemen Hamor, Yoreh Deah #4), while others permit the sale since its purpose is to assist the Jewish presence in Eretz Yisroel (Shu’t Yeshuos Malko, Yoreh Deah #55; Yalkut Yosef pg. 666, quoting Rav Reuven Katz, the late rav of Petach Tikvah). Others contend that the prohibition extends only to selling land to an idol-worshipper, but not to a gentile who does not worship idols (Sefer Hashmittah, pg. 74; Yalkut Yosef pg. 665, quoting Mizbei’ach Adamah), whereas still others maintain that one may sell land to a gentile who already owns land in Israel (Shabbas Ha’aretz, Mavo 12). The original contracts approved by the rabbonei Yerushalayim designed that sale to incorporate many aspects to avoid this concern (Sefer Hashemittah, pg. 75). However, each of these approaches is halachically controversial. In fact, the problem of selling the land to a gentile is so controversial that many poskim consider such a sale invalid because of the principle of ein shaliach lidvar aveirah, that transacting property through agency in a halachically unacceptable manner is invalid (Chazon Ish, Shvi’is 24:4).

Among contemporary poskim there is wide disagreement whether one may eat produce on the basis of heter mechirah. Some contend that one may, whereas others rule that both the produce and the pots used to cook this produce become non-kosher. Others follow a compromise position, accepting that the pots should not be considered non-kosher, although one should carefully avoid eating heter mechirah produce. Because of the halachic controversies involved, none of the major hechsherim in North America approve heter mechirah produce. Someone visiting Eretz Yisroel during shmittah who wants to maintain this standard should clarify his circumstances in advance.

FRUITS VERSUS VEGETABLES

Some rabbonim ruled that the fruits produced under heter mechirah may be treated as kosher, but not the vegetables. The reason for this distinction is as follows:

SEFICHIM

The Torah permitted the use of any produce that grew on its own in a field that was not worked during shmittah. Unfortunately, though, even in the days of Chazal, it was common to find Jews who deceitfully ignored shmittah laws. One practice of unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew on their own, a prohibition called sefichim, or plants that sprouted.

Several exceptions were made, including that produce of a non-Jew’s field is not prohibited as sefichim. Thus, if the heter mechirah is considered a charade and not a valid sale, the grain and vegetables growing in a heter mechirah field are prohibited as sefichim.

WHY NOT FRUIT?

Chazal did not extend the prohibition of sefichim to fruit, because there was less incentive for a cheating farmer. Although trees definitely thrive when pruned and attended to, they will produce even if left unattended for a year. Thus, the farmer has less incentive to tend his trees.

PERENNIALS

Similarly, perennials that do not require planting every year are not included in the prohibition of sefichin. Although perennials benefit when pruned and cared for, most will produce, even if left unattended for a year, and the farmer has less incentive to violate shmittah by caring for such plants.

Thus, tree fruits, nuts, strawberries and bananas do not involve the prohibition of sefichin. If they grew in a field whose owner was not observing shmittah, they might involve the prohibition of shamur, as explained below.)

“GUARDED PRODUCE”

I mentioned above that a farmer must allow others to help themselves to the produce that grows on his trees and fields during shmittah. What is the halacha if a farmer refused to allow others access to his produce during shmittah?

The rishonim dispute whether this fruit is forbidden. Some contemporary poskim prohibit the use of heter mechirah fruit on the basis that since heter mechirah is invalid, this fruit is now considered shamur, “guarded,” and therefore forbidden. Other poskim permit the fruit, because they rule that working an orchard or treating it as private property does not prohibit its fruit (see Shu’t Igros Moshe, Orach Chayim 1:186).

BACK TO OUR CARROT MUFFINS

What about our carrot muffins? If we remember our original story, the company had unwittingly purchased heter mechirah carrots. The hechsher required the company to return all unopened boxes of carrots to the supplier and to find an alternative source. However, by the time I discovered the problem, muffin mix using these carrots had been produced bearing the hechsher’s kashrus symbol and had already been distributed. The hechsher referred the shaylah to its posek, askingwhether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error occurred and allow the customer to ask his individual rav for halachic guidance.

What would you advise?

The Fateful U-Turn

ACT I – THE FATEFUL U-TURN

Location: The highway

Reuven missed his exit off the highway. Since it was a bright, clear day, he decided to make a U-turn to get back in the right direction. Although this was illegal, he did not consider it dangerous, since the road was virtually deserted, except for a car coming in the other direction which seemed to be quite a distance away.

Reuven was mistaken. His car collided with the other vehicle. Fortunately, no one was injured, but both cars suffered significant damage.

The other driver, Shimon, considered Reuven responsible for the damage to his vehicle, although Reuven insisted that Shimon must have been speeding for the accident to have occurred. Shimon insisted that he was not speeding.

To complicate matters, the car Reuven was driving was not his own. That morning, his friend Yaakov had asked Reuven to drive him to the airport using Yaakov’s car. On the way to the airport, Yaakov mentioned that, since he was leaving for a week, Reuven could borrow the car while he was gone.

After the accident, Reuven discovered that Yaakov’s car had no collision insurance, and worse yet, no liability insurance for any driver except Yaakov. Thus, there was no insurance coverage for the damage done to either vehicle.

Because Reuven would never have driven the car had he known it was uninsured, he claims that he never assumed responsibility for the value of the car when he borrowed it.

Is Reuven liable for the damage to both vehicles? Although Reuven is over his head in debt, if he is halachically obligated to pay either Yaakov or Shimon, he will do so. But if he is not required to do so, he feels that he is not in a financial position to make the compensation.

Reuven, Shimon, and Yaakov submit the shaylah to a beis din for arbitration. They schedule an appointment and come prepared to present their cases.

ACT II – THE COURTROOM

Location: The offices of the beis din

On the appointed day, the three litigants appear in the beis din. Shimon claims that Reuven must compensate him for the damage to his car, and that Yaakov should also be liable as the owner of an improperly insured vehicle. Reuven claims that Shimon is responsible for all the damages, since the accident happened because of Shimon’s speeding. Yaakov claims that Reuven damaged his vehicle and is therefore obligated to pay for its repair.

Yaakov presents his claim against Reuven first, stating that he has claims against Reuven for two different reasons:

1. First, Reuven should be liable as the borrower of the car, even if the damage was not his responsibility.

2. Second, Reuven is liable as a mazik, one who damages, since his negligence caused an accident.

Let us examine the validity of each claim separately, and then we will see what Reuven counters.

SHO’EIL

A sho’eil, a borrower, is responsible for almost any damage that takes place to the item he borrows, even if the damage is accidental and not caused by the borrower. (There are two circumstances where a sho’eil is not liable, but they do not apply here, and I am therefore omitting them from our discussion.) Yaakov claims that Reuven is responsible to make full restitution for the value of the car, since he borrowed it.

REUVEN’S DEFENSE

Reuven turns to the dayanim and explains, “I believe that I am not a sho’eil according to halacha, but I have the halacha of a socheir, a renter, notwithstanding the fact that I paid no money. Furthermore, I claim that as a socheir I am not responsible for the damages sustained, as I will explain.”

WHAT ARE THE RESPONSIBILITIES OF A SOCHEIR?

A socheir is liable for damage if the item is lost or stolen, or if he is negligent, but he is not responsible for accidental damage. There is also another major difference in halacha between a sho’eil and a socheir that Reuven uses as an essential component of his defense, as explained below.

WAS REUVEN A SHO’EIL OR A SOCHEIR?

In order to analyze this question, we need to explain why a sho’eil carries so much responsibility. The Gemara mentions that a sho’eil’s liability is so great because he gains all the benefits of the loan, without any responsibilities in return. (This is called kol hana’ah shelo, “all benefits are to the borrower.”) Since the borrower receives all the benefits, the Torah obligates him to compensate the owner for any damage whatsoever, even if it was beyond his control. Put in other terms, a lender who receives no benefits has a right to assume that his item, or its value, is returned to him.

However, any time the lender receives some compensation, even non-monetary, the arrangement is not kol hana’ah shelo, and the borrower is not liable for accidental damage. In our situation, Yaakov received a chauffeured ride to the airport in exchange for Reuven’s borrowing the car. Halacha views this as if Reuven rented the car from Yaakov, paying him for the rental by driving him to the airport. This is enough to make Reuven into a socheir rather than a sho’eil, and exempts him from paying for accidental damages (see Shu’t Haran #20).

BUT WAS THIS A CASE OF NEGLIGENCE?

Yaakov objects to Reuven’s defense. “Even if I received some benefit and you are not a sho’eil, you are still liable as a socheir, because the damage was caused by negligence!”

Furthermore, you are a sho’eil because giving me a ride to the airport was not an exchange for using the car; it was a chesed that you did for me.

However, Reuven has done his homework. He knows that there is another distinction between a renter and a borrower with regard to assumption of responsibility.

DID REUVEN ASSUME RESPONSIBILITY FOR THE CAR?

Reuven claims he would never have driven the car, had he known it was uninsured. Therefore, he never assumed any responsibility for the car’s value, and he is not liable for the damage. Does this defense have any merit?

The Gemara discusses a case where someone assumed responsibility for an item assuming it was worth far less than it actually was. If the item is subsequently lost, he is only responsible for as much value as he originally thought the item was worth (Shulchan Aruch, Choshen Mishpat 291:4). Thus, Reuven can legitimately claim that he was not responsible as a socheir of the car, because he never assumed responsibility for its value.

BUT WHY DID REUVEN INSIST THAT HE WAS NOT A SHO’EIL?

Reuven first claimed that he was not a sho’eil because Yaakov had received benefit. Only then did he claim that he wasn’t even a socheir, because he never assumed any responsibility. The first claim seems like an unnecessary step in his defense — let him simply claim that he never assumed any responsibility, whether as a sho’eil or as a socheir.

The answer is that there is a halachic difference between borrowing and renting. A borrower becomes responsible for all damages, even if he did not assume responsibility; that is, the fact that he uses the item without providing the lender any compensation makes him responsible (Machanei Efrayim, Hilchos She’eilah #1; Milu’ei Mishpat 346:8; cf. however Nesivos HaMishpat 346:8, who implies that even a sho’eil is not responsible under these circumstances).On the other hand, a renter’s liability is limited to how much responsibility he assumed.

WHY IS A BORROWER DIFFERENT FROM A RENTER?

A sho’eil is responsible because of the concept of kol hana’ah shelo, “all benefits are to the borrower.” The circumstances are what make him liable, not necessarily his agreement. (Although the lender can agree to exempt the borrower from all damages, in the absence of such an agreement, the borrower is responsible for all damages.) Thus, a borrower claiming that he never assumed responsibility, or that he was unaware of the liability, may not be a defense. However, a socheir’s liability results from his agreement to be responsible as a socheir. Therefore, claiming that he never assumed responsibility is a valid defense.

Thus, Reuven claims that he is not responsible as the borrower of the car for the following reasoning:

1)      He is not a sho’eil, but a socheir, since Yaakov received benefit from the “loan.”

2)      As a socheir, he can claim that he never accepted responsibility for the value of the car, because he assumed that insurance was covering the financial liability.

WHAT ABOUT A MAZIK, SOMEONE WHO DAMAGED SOMEONE ELSE’S PROPERTY?

Reuven has successfully demonstrated that he is not obligated to pay as a borrower. However, this does not exonerate him from Yaakov’s claim that he damaged the vehicle. His defense against this claim was that Shimon caused the accident. Is this claim a sufficient defense? Moreover, is it Yaakov’s responsibility to prove who caused the accident, in order to collect the damages from Reuven?

First, we must clarify two shaylos:

1. If someone damaged property in a traffic accident, is he considered a mazik who must pay for damages?

2. When two parties are involved in a collision, how do we assign financial responsibility?

The following incident that happened over seven hundred years ago resolves one of our questions.

ACT III – SOME HORSEPLAY

Location: Thirteenth century Germany

The Rosh (quoted by Tur, Choshen Mishpat 378:9) discusses the following din Torah:

During a wedding celebration, the groom was riding a very expensive mule that he had rented from a non-Jew for the occasion. (This was the thirteenth-century equivalent to renting a white Cadillac for a newlywed couple.) One of his well-wishers galloped up the street on horseback, unintentionally crashing his horse into the groom’s mule. Baruch Hashem, the groom emerged unscathed from the collision, but the mule suffered severe damage. Under civil law, the groom, as renter of the mule, was obligated to pay not only damages, but also a sizable penalty. Must the reckless rider compensate the groom for the damages and the penalty?

The horse rider refused to pay, contending that he was exempt from damages, since he was riding on a public thoroughfare. Furthermore, he had not done the damage; the horse was responsible. He claimed that this case is comparable to that of an animal that tramples on property while walking through a public area. In that instance, the halacha does not obligate the owner of the animal to pay if his animal tramples property left in a public area.

The Rosh ruled that there is a difference between an animal walking and a rider galloping on a horse. In the latter case, the rider, himself, is the damaging party, and the horse is the “tool” with which the rider damaged. A person is required to use a public thoroughfare in a responsible way, and galloping on a horse when other people are nearby is irresponsible. Since the rider acted irresponsibly, he must pay damages. (For reasons beyond the scope of this article, the Rosh absolved the rider from paying for the penalty that the groom incurred.)

When two cars collide, who is responsible for the damage?

Based on the above ruling, any damage performed by an automobile is considered damage performed by its driver, and the automobile is considered his tool. However, this does not tell us how we determine which driver is responsible, and for how much damage.

For this we will have to refer to an older discussion that traces back to the time of the Gemara.

ACT IV – A COLLISION

Location: Bavel, seventeen hundred years ago

The Gemara (Bava Kamma 32a; 48a) and the poskim discuss at length the case of two people colliding into one another on a city street, both of whom sustain injuries. Who is held responsible to pay for the damages?

We will simplify a very complicated discussion by providing some general rules that apply to our case:

If one party acted responsibly and the other acted irresponsibly, and the two parties collided, the party acting irresponsibly is liable for damages. Thus, if one person is running through the street and the other is walking, and the two people collide, the running person is liable, since that is considered acting irresponsibly. (There is an exception. The halacha acknowledges that someone is permitted to run through the streets late Friday afternoon, in order to complete his Shabbos preparations. Such running is not considered irresponsible.)

If both parties acted irresponsibly, the poskim dispute how we determine liability. Rashi (Bava Kamma 48b s.v. chayovin) rules that when the two parties collided into one another, each person is liable for the damage he did. Thus, if Levi and Yehudah collide, Levi is responsible for Yehudah’s injuries, and Yehudah for Levi’s.

Tosafos (Bava Kamma s.v. shenayim) disagrees, contending that in a case where both parties acted irresponsibly and the damage was accidental, neither party must pay for damages, since the damaged party also acted negligently. However, if someone injured or damaged intentionally, he must pay, even if the other party was negligent.

How do we pasken?

The Shulchan Aruch (Choshen Mishpat 378:7) rules like Rashi,whereas the Rema (421:8) rules like Tosafos.

Let us now apply the rules just mentioned to our case. By his own admission, Reuven made an illegal turn, which certainly qualifies as negligent driving. Thus, even if we accept Reuven’s claim that Shimon was speeding, it is still a case of both drivers acting irresponsibly. According to Rashi’s opinion, this would still make Reuven responsible for the damages to Shimon’s vehicle. In addition, Reuven would be responsible for the damage to the car he was driving, since he acted negligently. Reuven is claiming that Shimon should be responsible for those damages, a claim that he cannot substantiate.

According to Tosafos, Reuven is claiming that both parties contributed to the damage and that, therefore, he is not liable for the damages to Shimon’s vehicle. However, he would certainly be liable for the damages caused to the car that he was driving.

This is all assuming that we accept Reuven’s contention that Shimon was speeding. However, Reuven cannot prove that Shimon was speeding, and Shimon denies it. Since we know that Reuven made an illegal turn, the beis din ruled that Reuven acted negligently and is liable for the damage to both cars. Since there is no proof that Shimon was negligent, we cannot make any claim against him.

ACT V – EPILOGUE

Reuven was understandably disappointed with the beis din’s decision. However, as a G-d-fearing Jew, he knows that he is bound by their psak. Thankfully, there was only property damage involved, and he did not inadvertently suffer or cause any bodily harm. He now davens for Hashem’s help that he continue his driving career with no further incidents or accidents.

Hunting for Meat

Parshas Re’eih includes the commandment that instructs us how to prepare our meat for our table (Devorim 12:15).

Question #1:

Sheis, the son of Adom Harishon, was traveling one day and realized that he had not packed enough peanut butter sandwiches for the trip. Now hungry, he witnessed a travel accident, which resulted in an animal being killed. Was he permitted to cook the carcass for lunch?

Question #2:

Sheis’s descendant, Linda, lives in the modern era and is Jewish. While traveling in an unfamiliar area, she hunts for kosher meat, discovering some with an unfamiliar supervision, and calls her rabbi to ask whether he recommends it. What factors does he consider in advising her whether to use this product?

Question #3:

In a previous position, I was responsible for researching sources of meat that our local Vaad HaKashrus would accept. I traveled to many cities and visited many meat packing facilities. People have often asked why, sometimes, my hunt resulted in a new acceptable source, and why sometimes it did not. What was I looking for?

Before answering these questions, we need to understand what are the Torah’s requirements for allowable meat.

Upon Noach’s emerging from the teivah (the ark), Hashem speaks to Noach, notifying him that he and his descendants may now eat meat for the very first time. Prior to this time, no one had ever been permitted to sink his teeth into a steak or even a schnitzel (Sanhedrin 59b, based on Bereishis 1:29-30, 9:3; as interpreted by Rambam, Hilchos Melachim 9:1). In actuality, not all authorities agree that Adam and his pre-mabul descendants were required to be vegetarian – some maintain that they were permitted to eat the meat of animals that had already died, and were forbidden only to kill animals for meat (Rashi, Bereishis 1:29and Sanhedrin 57a s.v. limishri basar; Tosafos, Sanhedrin 56b s.v. achal). According to this last opinion, pre-Noach mankind may have eaten sushi, steak or schnitzel, provided that they did not take the animal’s life.

Thus, whether Sheis could barbecue the discovered road kill (Question #1 above) depends upon whether he held like Rashi, in which case he could, or like the Rambam, in which case he could not. According to the Rambam, he was restricted to a vegetarian diet, which included the responsibility to check that his veggies were insect-free. Presumably, he called the local Vaad HaKashrus to determine how to check each type of vegetable. I wonder what he did when he wanted to eat Brussels sprouts!

However, when Noach emerged from the teivah, he and his descendents were permitted to give up their vegetarian lifestyle, provided that they ate no meat that had been removed from an animal while it was still alive (eiver min hachai). Just think —  had Sheis lived after the time of Noach, he could have included some tuna sandwiches in his lunchbox or picked up a salami at the local grocery, instead of going hungry!

When the Torah was given, it both limited the species that a Jew may eat and created many other regulations, including that kosher meat and poultry must be slaughtered in the halachically-approved way (shechitah), and may be eaten only if they are without certain defects that render them tereifah. Even after ascertaining that the animal, itself, may be eaten, one must still remove the blood, certain fats called cheilev, and the sciatic nerve (the gid hanasheh). These last two prohibitions do not apply to fowl.

In the contemporary world, guaranteeing that one’s meat is appropriate for the Jewish table involves several trained and G-d-fearing people, including shochatim, bod’kim, menakerim, mashgichim, and knowledgeable rabbonim to oversee the entire process.

THE SHOCHEIT’S JOB

Aside from the shocheit’s obvious responsibility to slaughter the animal the way Hashem commanded, he must also fulfill another very important task: following the slaughtering, he must verify that he performed the shechitah correctly. This is a vitally important step; without this inspection, the animal or bird must be considered non-kosher – it will be acceptable for the table of Bnei Noach, but not for Klal Yisroel.

Next, the animal or bird is examined to ensure that it is not tereifah. Although common use of the word “treif” means something that is non-kosher, for any reason whatsoever, the technical meaning of the word refers to an animal with a physical defect that renders it non-kosher, even if it was the beneficiary of a proper shechitah.

THE BODEIK

In a meat packing plant (beef, veal or lamb), the individual accountable to check for these defects is called a bodeik (pl. bod’kim). Most bod’kim are trained shochatim, and, indeed, in most plants, the bod’kim and shochatim rotate their tasks, thus making it easier for them to be as attentive as the post requires. As a result, a person licensed both as a shocheit and as a bodeik is usually called a shocheit, although, technically, he should be called a shocheit ubodeik, to truly reflect the extent of his training.

THE SECOND BODEIK

The responsibility to check for tereifos is divided between two bod’kim. The first, the bodeik penim, checks the lungs in situ, which is the only way one can properly check that the lungs do not adhere to the ribs, to the membrane surrounding the heart (the pericardium), or to themselves in an improper way, all of which render the animal non-kosher. This checking is performed completely based on feel. The bodeik gently inserts his hand, and runs his fingers carefully over all eight sections of the lung, to see if he feels any adhesion between the lung and one of the other areas.

The second bodeik, the bodeik chutz, rechecks the lungs and makes a cursory check of other organs, upon their removal from the carcass, particularly the stomachs and intestines, for swallowed nails and for various imperfections that render the animal non-kosher.

After the two bod’kim are satisfied that the animal is kosher, the second bodeik or a mashgiach tags the different parts of the animal as kosher with lead or plastic seals. Longstanding practice is that, in addition, the bodeik or a mashgiach makes small slits between the ribs that identify the day and parsha of the week, to mark the piece as kosher. A mark made when the meat is this fresh appears completely different from one made even a few hours later, making it difficult to counterfeit. Of course, this mark is not, alone, used to verify that the meat is kosher, but it is an essential crosscheck, since the old-styled tags can be tampered with.

The modern kosher poultry plant is organized slightly differently: The shochatim perform shechitah only, whereas the bedikah inspection is performed by mashgichim trained to notice abnormalities. If they notice any, they remove the bird from the production line; a rav or bodeik then rules whether these birds are kosher.

For both animals and birds, one needs to check only for commonly occurring tereifos, but not for uncommon problems. For example, the established halachic practice of over a thousand years is to check an animal’s lungs, because of their high rate of tereifos, and today it is common practice in Israel to check legs. Animal lungs frequently have adhesions called sirchos, which render them non-kosher (Chullin 46b), although Ashkenazic custom is that easily removed adhesions on mature cattle do not render them treif (Rosh, Chullin 3:14; Rema, Yoreh Deah 39:13). An animal without any sircha adhesions is called glatt kosher, meaning that its lung is completely smooth – that is, without any adhesions, even of the easily removable variety.

The rav hamachishir’s responsibilities include deciding which problems are prevalent enough to require scrutiny and what is considered an adequate method of inspection.

Depending on the factory, the next steps in the preparation of beef, veal or lamb are occasionally performed in the same facility where the shechitah was performed, or alternatively, they are performed at the butcher shop.

TRABERING

Prior to soaking and salting meat to remove the blood, certain non-kosher parts of the animal, including the gid hanasheh (the sciatic nerve), non-kosher fats called “cheilev,” and certain large blood vessels, must be removed (Yoreh Deah 65:1). The Hebrew word for this process is “nikur,” excising, and the artisan who possesses the skill to properly perform it is called a menakeir (pl. menak’rim). The Yiddish word for this process is traberen,which derives from tarba, the Aramaic word for cheilev, the non-kosher fat. This step is omitted in the production of poultry, since it is exempt from the prohibitions of gid hanasheh and cheilev, and its blood vessels are small enough that it is sufficient to puncture them prior to the soaking and salting procedures.

Early in its butchering, a side of beef (which is half its carcass) is divided into its forequarter and hindquarter. Since the gid hanasheh and most of the cheilev are located in the hindquarter, trabering it is a tedious process that requires a highly skilled menakeir. (On RabbiKaganoff.com, there is an article on the history and halachic issues germane to this practice.) The forequarters must still be trabered prior to soaking and salting, to remove blood vessels and some fat (Rema, Yoreh Deah 64:1; Pischei Teshuvah 64:3). Although trabering is a relatively easy skill to learn, Linda’s rabbi might need to check whether the hechsher can be trusted that this was done properly, as the following story indicates.

I once investigated the kashrus of a certain well-known resort hotel, one not usually frequented by frum clientele. I called the hotel and asked who provided their hechsher, and was soon on the telephone with both the resident mashgiach and the rav hamachshir.

I began by introducing myself and the reason for my phone call, and then asked about the sources of the meat used in the hotel. In the course of the conversation, it became evident that neither the rabbi nor the mashgiach knew the slightest thing about traberen, although they were officially overseeing a staff of in-house butchers, none of whom was an observant Jew. I realized that the rather poor kashrus reputation of this establishment was, indeed, well deserved. The rabbi overseeing the hechsher, himself, did not know trabering, nor did he have any halachically reliable supervisor. What was he overseeing?

SOAKING AND SALTING

Returning to our brief overview of the proper preparations for kosher meat:  After the meat has been properly trabered, it is ready to be soaked and salted to remove its blood. In earlier generations, this process, usually called kashering meat, was performed exclusively at home, but today, common practice is that this is performed either by the butcher or at the meat packer. Almost all kosher poultry operations today soak and salt the meat immediately after shechitah, and it is becoming increasingly more common in beef operations.

To kasher meat, it should be rinsed well, soaked in water for half an hour, drained, salted for an hour, and then rinsed three times (Rema, Yoreh Deah 69:1, 5, 7). The halacha requires that the meat be covered with salt on all exposed surfaces (Yoreh Deah 69:4). Most packing plants do this job appropriately, although I have seen places where the salting was inadequate; entire areas of the meat were not salted. This is, probably, simple negligence; although when I called this problem to the attention of the mashgiach, he insisted that it was performed adequately, notwithstanding my observing the contrary. Needless to say, I did not approve this source.

WASHED MEAT

The Geonim instituted a requirement that meat be soaked and salted within 72 hours of its slaughter (Yoreh Deah 69:12). This is because of concern that once 72 hours have passed, the blood becomes hardened inside the meat, and salting no longer removes it. If more than 72 hours passed without the meat being salted, the Geonim ruled that if the meat is broiled, it may be eaten, since this process will still remove the blood, even though salting will not (Yoreh Deah 69:12).

A question that developed with time was whether wetting the meat prevents the blood from hardening inside. Some early authorities permitted soaking meat to extend the 72-hour period (Shach 69:53). However, this leniency often led to highly liberal interpretations. I have seen butchers take a damp rag and wipe the outside of the meat and considered it washed. Thus, there are two different reasons why most reliable kashrus operations do not allow the use of “washed meat,” either because they do not accept this lenience, altogether, or because of concern that once one accepts hosed meat, it becomes difficult to control what type of washing is acceptable.

THE RAV HAMACHSHIR

Thus far, I have described the tremendous responsibilities of most of the staff necessary to guarantee that the meat is of the highest kashrus standards. One person that I have not adequately discussed is the rav hamachshir, the supervising rabbi, who has the final say on the kashrus standards that the meat packer and butcher follow. Although a rav overseeing meat kashrus does not necessarily have to be a shocheit or trained menakeir himself, he certainly must be proficient in all of these areas, both in terms of thorough knowledge of halacha and in terms of practical experience. For most of Jewish history, the most basic requirement of every rav demanded that he be proficient in all the halachos of kosher meat production. As the local rav, his responsibility included all shechitah and bedikah in his town.

However, in the contemporary world of mass production and shipping, the local shul rav is rarely involved in the details of shechitah, and often has limited experience and training in these areas. Depending on the semicha program he attended, he may not have been required to study the laws of shechitah and tereifos. Thus, what was once the province of every rav has now become a specialty area, and, sometimes, rabbonim involved in the giving of meat hechsherim lack the proper training.

I was once given a tour of a meat packing plant by the supervising rabbi of the plant. During the course of the tour, I became painfully aware of the rabbi’s incompetence in this area of kashrus. For example, he was clearly unaware of how to check shechitah knives properly, certainly a basic skill necessary to oversee this type of hechsher. Would you approve this meat supplier for your local Vaad HaKashrus?

At this point, I want to address the third question I raised above: Sometimes, my visit to a meat packer resulted in a new, acceptable source, and sometimes it did not. What was I looking for, and why would I disapprove a source that a different rav was approving?

The answers to these questions are sometimes subjective, but I will provide you with some observations of mine.

IS THE SYSTEM WORKABLE?

There are many subtle and not-so-subtle observations that a rav makes when examining a meat packer. I could not possibly list in one article all the types of problems I have seen, but I will mention certain specific concerns to which I would always be attentive.

Is the production line too quick for the shocheit or mashgiach to do his job properly? Are the shochatim or mashgichim expected to perform their job in an unrealistic manner, either because of a shortage of trained manpower or because of the speed or organization of the production line?

QUALITY OF PERSONNEL

Are the shochatim knowledgeable? Do they appear to be G-d fearing individuals? Although it is impossible to know whether someone is, indeed, a yarei shamayim, it is unfortunately often very obvious that he is not. It can happen that one rav has questions about the staff, and for this reason, he does not approve a source of supply.

I will give you an example of this. While visiting a plant to determine whether we should allow this shechitah, we heard a conversation in which one of the shochatim showed a shortcoming in tzeniyus within his family. Although one could point to a specific law that disqualifies him as a shocheit, I, personally, was uncomfortable with entrusting him with decisions that would affect what I eat. After discussion with the other rabbonim in our community, we decided not to accept meat from this shechitah.

Does this mean that we considered this meat non-kosher? G-d forbid. It simply means that we were uncomfortable allowing it, and decided that we have that responsibility as rabbonim of our community.

Thus, it could indeed happen that what one rav considers acceptable, another rav feels is not. The differences may be based on the interpretation of halacha, or they may result from a rav’s inclination as to how a plant should be run.

CONCLUSION

Based on the above information, we can better understand many aspects of the preparation of kosher meat and why it is important to use only meat that has a proper hechsher. We can also gain a greater appreciation of how hard rabbonim and shochatim work to maintain a high kashrus standard. Now that we recognize the complexity involved in maintaining kosher meat standards, we should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

How Much Must I Bensch?

Question:

I mistakenly recited al hamichyah, when I was required to bensch. Am I now required to bensch?

Introduction

Prior to answering our opening question, we need to review many of the basic laws of brachos after eating, and their sources, which will help us understand the topic at hand. Parshas Eikev opens by teaching that when we observe all of Hashem’s mitzvos, we will be rewarded with a beautiful land. Shortly afterwards, the Torah continues: Ki Hashem Elokecha me’viacha el eretz tovah… eretz chitah u’se’orah vegefen u’se’einah verimon eretz zeis shemen u’devash. Eretz asher lo bemiskeinus tochal bah lechem, lo sechsar kol bah.“For Hashem, your G-d, is bringing you to a good land… a land of wheat and barley, grape vines, figs and pomegranates, a land of olive oil and honey. A land where you will eat bread without poverty; you will be missing nothing” (Devorim 8:7-9).

Bensching in the Torah

The Torah then continues: Ve’achalta ve’savata uveirachta es Hashem Elokecha al ha’aretz hatovah asher nosan loch, “And when you eat and are satisfied, you shall bless Hashem, your G-d, for the good land that He gave you.” This wording implies that we are required to bensch min haTorah only when a person has eaten enough to be fully satisfied, and this is the halachic opinion of most, but not all, rishonim. This law has halachic ramifications for someone who is uncertain whether he has a requirement to recite bensching. This uncertainty might be due to the fact that he does not remember if he bensched, or he was delayed and does not know if he has missed the time in which he can still bensch. When his doubt involves a possible Torah requirement, the rule is safeik de’oraysa lechumra, and he should recite bensching. However, if his question is regarding a rabbinic requirement, then the rule is safeik brachos lehakeil, and he does not recite the bracha acharonah. According to most rishonim, someone who ate a full meal and now is uncertain whether he is required to bensch should do so. If he ate less than a full meal, he does not bensch in case of doubt.

The requirement to recite a bracha acharonah after eating a snack is only miderabbanan. Therefore, if someone has a doubt whether he is required to recite this bracha, he does not, because of the rule of safeik brachos lehakeil.

Three aspects

The wording of the posuk that we should bless Hashem al ha’aretz hatovah asher nosan loch, “for the good land that He gave you,” implies that, in addition to thanking Hashem for providing us with sustenance, our bensching must include a reference to Hashem granting us Eretz Yisroel. Furthermore, the Gemara (Brachos 48b) derives that bensching must include reference to Yerushalayim and the Beis Hamikdash. These three aspects are represented in the first three brachos that we recite in our bensching. The first bracha is thanks for the fact that Hashem provides us, and the entire world, with food and sustenance. The second bracha praises Him for having given us Eretz Yisroel; and the third bracha is for the special gift of Yerushalayim and the Beis Hamikdash. Since, unfortunately, the Beis Hamikdash is now destroyed, the third bracha emphasizes our plea that Hashem have mercy on the land and rebuild it.

The Gemara explains that Moshe established the first bracha of bensching when the man first fell in the desert, Yehoshua established the second bracha of bensching when the Jews entered Eretz Yisroel, and Dovid Hamelech and Shelomoh Hamelech established the third bracha of bensching – Dovid establishing the reference to Yisroel and Yerushalayim, and Shelomoh adding the reference to the Beis Hamikdash (Brachos 48b).

Borei Nefashos

As we are all aware, other than the full bensching, there are two forms of bracha acharonah that we recite after we eat. One is a short bracha that begins with the words borei nefashos, which we recite after eating foods not mentioned in the above pesukim, including, but not exclusively, items upon which we recite the brachos of shehakol and ha’adamah. According to all opinions, this bracha is required only because of a takkanas chachomim, but is not included under the Torah’s mitzvah.

Bracha mei’ein shalosh

The other bracha, colloquially referred to as al hamichyah, is called in halachic sources bracha mei’ein shalosh, literally, a bracha that abbreviates three. This is because this bracha acharonah includes all three of the themes that are included in the posuk, similar to the full bensching. The difference is that in al hamichya, each theme does not have its own separate bracha, whereas in the full bensching that we recite after eating bread, each theme does.

There are three types of bracha mei’ein shalosh. We recite most frequently al hamichyah, the version that is said after eating grain products other than bread. This bracha is derived from the fact that the Torah praises Eretz Yisroel as “a land of wheat and barley.” Although there are also three other grains upon which we recite al hamichyah, namely spelt, rye and oats, these three are considered halachically as sub-categories of wheat and barley.

The second version of bracha mei’ein shalosh, al ha’eitz, is recited after eating olives, dates, grapes, figs, and pomegranates, all of which are also included in these pesukim. The order I chose, which has halachic significance, is not the order of the posuk, but reflects the proximity of each fruit to the word eretz in the posuk.

Although dates are not mentioned explicitly, the honey referred to in the posuk is date honey, not bee honey. (Silan, or date syrup, often used today as a natural, although not dietetic, sweetener, is similar to date honey. Silan is usually produced by cooking dates into syrup, whereas date honey in earlier days was produced simply by crushing dates.)

The third version of the bracha mei’ein shalosh is recited after drinking wine or grape juice, also alluded to in the posuk as the product of grapes. This is the only instance in which we recite bracha mei’ein shalosh after consuming a beverage. It is a reflection of the prominence we give wine, also evidenced by such mitzvos as kiddush and havdalah, and the fact that wine is used for such ceremonies as weddings, sheva brachos, brissin and pidyon haben.

These three versions are not mutually exclusive. Someone who ate grain products and fruit includes both texts in his bracha, as does someone who ate grain products and wine. Someone who ate all three “special” foods recites a bracha that includes all three references.

We should note that, since the Torah mentions all these varieties of food, there are rishonim who contend that the requirement to recite a bracha after consuming them is min haTorah. There are many halachic ramifications that result from this issue; however, that sub-topic requires its own article.

Fourth bracha

Our full bensching also has a fourth bracha, which is usually referred to as Hatov vehameitiv, which was added to the bensching by Chazal after the destruction that took place in Beitar, two generations after the churban (Brachos 48b). We will leave discussing the details of that topic for a different time, but I want to point out that this explains why this theme is not mentioned in the bracha of al hamichyah. When Chazal added this bracha, they added it only to the full bensching and not to the abbreviated version that is al hamichyah.

Harachaman

Common custom is to add a long list of general requests (Avudraham, Seder Birchas Hamazon) followed by a recital of several pesukim, after the fourth bracha of bensching. The origin for this practice is a passage of Gemara (Brachos 46a) that quotes a text that a guest should recite to bless his host. There, the Gemara quotes a basic bracha and then notes that others added to it. Based on this background, the Rambam (Hilchos Brachos 2:7) teaches that a guest can freely add to this blessing, and this has generated various additional texts to this bracha.

In his monumental work, Even Ha’azel, Rav Isser Zalman Meltzer notes that, according to the Rambam, the prayer of the guest for the host is an addendum to the fourth bracha of bensching. It would appear that, in the Rambam’s opinion, a person should not answer “amen” when a guest recites the words leolam al yechasreinu, since he has not yet completed his bracha until he blesses the host. This approach is not accepted, practically. The opinion of other halachic authorities (Avudraham, Seder Birchas Hamazon) as well as prevailing custom is to recite the blessing for the host a bit later in the bensching, after other prayers beginning with word Harachaman have already been expressed.

With time, many other requests were added to the bensching. Some individuals follow the practice of the Gra and recite these prayers only on weekdays, but not on Shabbos and Yom Tov when we generally do not make personal prayer requests, although theaccepted halachic practice is to recite these prayers and blessings on Shabbos, also.

Three brachos or one?

We noted above that the Torah requires the mention of three topics in our bensching, (1) thanks for sustenance, (2) thanks for the Land of Israel, and (3) a prayer for Yerushalayim and the Beis Hamikdash. However, it is disputed whether the Torah requires that each of these three themes have its own bracha, and that bensching min haTorah must contain at least three different brachos, or whether the Torah requirement is fulfilled by reciting one bracha that emphasizes the three different themes, and reciting three different brachos is only a rabbinic requirement.

There are several differences in practical halacha that result from this dispute.  One obvious difference is that, although one is certainly required to recite all the brachos of bensching, according to one approach, this requirement is only miderabbanan,whereas, according to the other approach, reciting three brachos is required min haTorah. We will soon see other halachic differences that result from this dispute.

This question, whether bensching min haTorah must contain at least three different brachos, or whether the Torah requirement is fulfilled by reciting one bracha, is the subject of a dispute between Tosafos and the Rambam. The opinion of Tosafos is stated in his comments germane to the following topic, to which I provide an introduction:

There is a general Talmudic assumption that a worker who is hired for a day is required to work a full day, and that taking time to check his personal email or to make a phone call violates his contractual obligation to his employer. (In today’s world, when it is assumed that a worker may take an occasional coffee break, presumably one may take time off that is assumed to be included in one’s work schedule. However, doing anything else at the time that a person is obligated to work for someone is certainly forbidden.)

In this context, the Gemara (Brachos 16a) quotes the following beraisa:

“Hired workers are required to read the Shema and to pray. When they eat bread, they are not required to recite a bracha before eating, but after eating they are required to recite two brachos. Which two brachos do they recite? The first bracha of bensching is recited in its usual fashion. The second bracha begins the way it usually begins, but includes the third bracha.” In other words, the Gemara assumes that the worker’s responsibility to his employer is more important than his requirement to recite the full bensching!

Tosafos, there, notes: “Although reciting both the second and third bracha is required min haTorah, the Sages have the ability to uproot a Torah requirement for the benefit of these workers, who are occupied with performing the work of their employer.” In order to explain how a worker is permitted to omit a bracha of the bensching, Tosafos utilizes a halachic principle called yeish koach be’yad chachomim la’akor davar min haTorah, that the Sages have the ability to “uproot” a law of the Torah, when deemed necessary. It is clear that Tosafos assumes that the requirement to recite three brachos is min haTorah.

In his monumental anthology, in which he gathers all the earlier halachic opinions, the Beis Yosef (Orach Chayim 191) indeed quotes Tosafos’ approach, but then disagrees, contending that there is no need to apply the principle of yeish koach be’yad chachomim la’akor davar min haTorah in this case. To quote the Beis Yosef: “It appears to me that there is no need for this answer, since there is no requirement min haTorah to recite several brachos to fulfill the mitzvah of birchas hamazon. This can be demonstrated from the words of the Rambam in his Sefer Hamitzvos, in which he writes: ‘The nineteenth mitzvah is that we are commanded to bless Him after eating.’ The Rambam makes no mention that there is a Torah requirement to recite several brachos. Notwithstanding that the Gemara derives the requirement of three brachos from verses, these derivations are only asmachta (which means that the requirement to do so is only rabbinic).”

In other words, although one is required min haTorah to mention all three themes, there is no Torah requirement that each theme have its own bracha. That requirement is only rabbinic. Since Chazal were the source of the requirement to recite three brachos for bensching, they had the ability to dispense with the requirement to recite all three brachos in the case of the hired worker. Thus, in the Beis Yosef’s opinion, whether three brachos are required min haTorah is a dispute between Tosafos and the Rambam, and the halacha follows the Rambam’s approach,that the requirement to recite three brachos is only miderabbanan. Those who disagree with the Rambam and contend that all three brachos are required min haTorah will be forced to find a way of explaining why the workers are exempt from reciting a full bensching, and will probably have to follow Tosafos’ difficult approach to resolve the conundrum.

It is significant that the Bach, in his commentary on the same chapter of Tur Orach Chayim,agrees that the Rambam rules that the requirement to recite three brachos for bensching is not min haTorah, but contends that his opinion is the minority. The Bach concludes that Tosafos’ approach is the primary one. In other words, both the Beis Yosef and the Bach recognize that there is a dispute among the rishonim whether we are required min haTorah to recite three brachos for bensching; they dispute regarding which of these approaches is considered the normative halacha.

Al hamichyah

Here is another practical difference that results from this dispute: According to the Beis Yosef, someone who recited al hamichyah when he was required to recite the full bensching has fulfilled his requirement min haTorah, although he has not fulfilled his requirement miderabbanan. A ramification of this will be that if he recited al hamichyah and he has a safeik whether he is required to recite the entire bensching, he will neither be required nor permitted to recite the full bensching. Since he has fulfilled his Torah requirement and what remains is an unresolved question regarding a rabbinic requirement, the rule of safeik brachos lehakeil applies.

However, according to the Bach, someone who recited al hamichyah when he was required to recite the full bensching may be missing a Torah requirement to recite three brachos.  This could mean that the rule of safeik de’oraysa lechumra applies, and he is required to repeat the bensching.

Uncertain identity

This analysis may explain exactly such a dispute between the Beis Yosef and the Bach that appears in a different context (Orach Chayim 168). The question concerns a food about which there is an unresolved question whether it is considered regular bread, requiring full bensching, or whether its bracha is mezonos, after which one should recite al hamichyah. The Beis Yosef appears to hold that one may eat the food and recite al hamichyah afterwards, whereas the Bach does not permit this approach, insisting that such a food should be eaten only as part of a regular bread meal in which hamotzi and full bensching were recited for the regular bread. Apparently, the Beis Yosef considers al hamichyah to be a type of bensching, whereas the Bach rejects this approach, which implies that they are consistently following the positions that each advocated in chapter 191.

Before we close, let us return to our opening question, which we can now resolve:

“I mistakenly recited al hamichyah, when I was required to bensch. Am I now required to bensch?”

The answer is that in this instance, one is required to bensch to fulfill the recitation of the three brachos that Chazal instituted. However, if there is a safeik whether there is a requirement to bensch, then, according to the Beis Yosef, since one has already fulfilled his Torah obligation by reciting al hamichyah, there is neither a requirement, nor should one bensch.

Conclusion

According to the Gemara (Bava Kamma 30a), someone who desires to become exemplary in his spiritual behavior should toil in understanding the laws of brachos. By investing energy in understanding the details of how we praise Hashem, we realize the importance of each aspect of that praise, and how we must recognize that everything we have is a gift from Him.

Honor the Elderly!

In the aseres hadibros, honoring parents features significantly, thus, we will discuss:

Question #1: Respect your elders?!

“Am I required to stand up anytime I see a senior citizen walking down the street?”

Question #2: Age before wisdom?!

“I give a daf yomi shiur. Many of those who attend are old enough to be my grandfather. Am I required to stand up for them when they arrive at the shiur?”

Question #3: Elder older?

“Does one older person need to stand up for another older person?”

Introduction

In parshas Kedoshim, the Torah teaches that there is a mitzvah to stand up before an older person and to treat a “zakein” with respect. The words of the posuk are: Mipnei seivah takum vehadarta penei zakein, “you should stand up for an older person and treat an ‘elder’ with respect” (Vayikra 19:32).

To begin with, we will raise several additional questions: How old does the person need to be to qualify as being “older”? Does it make a difference if it is an older man or an older woman? For how long must I remain standing? Is there any difference between someone who is “older,” in lashon kodesh, seivah, and someone who is an “elder,” which is the way I translated the word zakein? Is a demonstration of respect required, regardless of how religiously observant the older person is?

Elder or older?

I was very deliberate to translate the word zakein as “elder.” Indeed, the lashon kodesh word zakein, and the English word elder, carry the same two different meanings. The word zakein can mean an older person, but it can also mean a scholar, or someone who is respected for his sage advice and leadership qualities. Both meanings are similarly included in the English word “elder,” but not necessarily in the word “older.” Thus, the expression, “respect your elders,” does not have to refer to someone older than you are, since there can be a young elder, but it is difficult to have a young older.

The Gemara (Kiddushin 32b) presents a three-way dispute as to what type of older person, or “zakein,” is included in the mitzvah. According to the tanna kamma, the mitzvah applies only to someone who is both a Torah scholar and elderly. In his opinion, there is no requirement to stand up for a profound Torah scholar who is young. Rabbi Yosi Hagelili disagrees, contending that there is a mitzvah to rise and show respect both to an older person who is not a profound scholar, as long as he knows some Torah, and to a Torah scholar, even if he is young. A third tanna, Isi ben Yehudah, rules that there is a requirement to stand up for any Torah scholar and for an older person, provided the older person is basically Torah observant. (This reflects the opinion of Rabbeinu Tam, which is the approach accepted by the halachic authorities. According to Rashi, Isi ben Yehudah requires standing up for an older person, even if he is willingly non-observant, and even if he is a rosho.)

The Gemara (Kiddushin 32b-33a) concludes that the halacha follows the third tanna, Isi ben Yehudah, which is accepted by the halachic authorities. Thus, there is a requirement to stand up for an older person, if he is halachically observant, even if he is not a scholar.

The Rambam’s conclusion is that a young talmid chochom should demonstrate honor to someone elderly, even if the older person is not a talmid chochom. This means that he is required to rise slightly to demonstrate honor, but he is not required to stand up fully (Hilchos Talmud Torah 6:9, as explained by Tur Yoreh Deah 244 and later authorities). The poskim refer to this demonstration of honor as hiddur.

There is a minority opinion that no one is required to stand up fully before an older person who is not a Torah scholar, and that it is sufficient to rise slightly (hiddur), as a show of honor (Shu”t Binyamin Ze’ev #243; see Aruch Hashulchan, Yoreh Deah 244:10). However, the Tur (Yoreh Deah 244) and most later authorities do not accept this approach. They conclude that it is a mitzvas aseih min haTorah for anyone but a talmid chochom to stand up for an older person.

Why is a talmid chochom exempt?

This sounds strange! Where else do we have a mitzvah that applies to everyone but a talmid chochom? The answer is that the Torah’s mitzvah is to show respect to Torah scholars and to elderly people who are Torah observant. Of the two categories, a Torah scholar deserves greater respect. If a talmid chochom were obligated to stand up for a non-educated elderly person, this would mean that the Torah is respecting age before wisdom. In fact, the Torah respects Torah wisdom before age.

Nevertheless, the “young” talmid chochom should rise slightly to demonstrate his respect for the older person. Since rising slightly, without standing up completely, is not a tircha, this is not considered showing disrespect to the Torah that the young talmid chochom represents.

Age before wisdom?!

At this point, let us address the second of our opening questions: “I give a daf yomi shiur. Many of those who attend are old enough to be my grandfather. Am I required to stand up for them when they arrive at the shiur?”

In other words, is there a requirement for the rebbi to stand up for his talmid who qualifies as a seivah? This question is discussed by several acharonim. The work She’eiris Yaakov,by Rav Yisroel Yaakov Algazi, is quoted as ruling that the rebbi is required to stand up for his talmid, the seivah. However, the commentary Leiv Meivin, by Rav Bechor Yitzchak Navardo, a nineteenth-century, Turkish posek, proves that the rebbi is required to stand up for his talmid only when the seivah himself is a talmid chochom and only when the rebbi is not obviously a much greater scholar than the seivah (Hilchos Talmud Torah 6:9). In other words, the only time a rebbi is required to demonstrate honor to an older person who is his talmid is when they are both talmidei chochomim of approximately similar stature, such that the younger talmid chochom is not obviously a much greater scholar than the older one. Thus, whether our daf yomi maggid shiur is required to stand up for the golden-aged attendees of his shiur is a dispute between the She’eiris Yaakov and the Leiv Meivin.

An older woman

Is there a mitzvah to stand up for an older woman?

The Sefer Chassidim (#578) rules that there is. Presumably, he is referring to a woman who is halachically observant, even if she is not very knowledgeable about halacha. There are halachic authorities who may disagree with the ruling of the Sefer Chassidim (see Halachos Ketanos 1:154; Shu”t Beis Yehudah, Yoreh Deah #28; Birkei Yosef, Choshen Mishpat 17:5; Bris Olam #578).

Two elderlies

Is an elderly person required to rise for another elderly person?

The Tur suggests that two talmidei chachomim or two elderly people should show respect (hiddur) for one another, although they are not required to stand up fully. This approach is codified by the Shulchan Aruch (Yoreh Deah 244:8). Some authorities explain that this is only when the two are of approximately equal stature as talmidei chachomim. However, if one of the talmidei chachomim is a greater talmid chochom than the other, the “lesser” talmid chochom is required to stand up for his more learned colleague (Leiv Meivin).

How old?

For how old a person are you required to stand up?

In the context of this mitzvah, the halachic authorities mention what appear to be three different ages.

1. The Rambam (Hilchos Talmud Torah 6:9) says that the mitzvah applies to someone “pronouncedly old,” which does not appear to have an obvious, objective criterion.

2. Based on the words of the Mishnah in Pirkei Avos (end of Chapter 5), ben shiv’im le’seivah, the Tur and the Shulchan Aruch rule that these laws apply to a person of the age of 70.

3. The Arizal is quoted as being strict to observe this mitzvah for people who have reached the age of 60 (Birkei Yosef, Yoreh Deah 244:4).

However, the Tur explains that the Rambam’s term “pronouncedly old” means 70, and that he is not disputing the Rambam in this matter.

In addition, there are various interpretations why the Arizal applied this mitzvah to someone who achieved the age of 60. Most conclude that the Arizal agrees with the ruling of the Shulchan Aruch, but that he had a personal chumrah, which was not halachically required, to stand up for a person once the honoree turned 60. Therefore, most rule that even those who follow kabbalistic practices are required to rise only for someone who is 70 years old (Birkei Yosef, Yoreh Deah 244:1; Leiv Meivin).

The halachic conclusion follows the opinion of the Tur and the Shulchan Aruch, ruling that the requirement to stand up for an older person applies only when the older person is at least 70 years old. This halacha holds true today, notwithstanding that 70 is no longer considered advanced in age.

An older person may be mocheil on his honor, and someone who knows that a particular person really does not want people to stand up for him should follow the older person’s wishes. Disregarding his personal desire is not demonstrating respect.

No respect

There is no requirement to rise and show respect when you are in a place where demonstrating respect is inappropriate, such as a bathhouse or bathroom.

When do you stand?

The requirement to stand up for a talmid chochom or an older person applies only when he is within four amos, approximately seven feet, of where you are. There are exceptions to this rule. There is a requirement to stand up for the person who taught you most of the Torah that you know, called your rebbi muvhak. In this case, you are required to stand up once your see the rebbi walking by, even at a distance (Aruch Hashulchan, Yoreh Deah 244:13).

Why four amos?

If you stand up when the talmid chochom or the older person is within your four amos, it is apparent that the reason you stood up is to honor him.

Don’t lose work time

There is an interesting halachic ruling, that there is no requirement to rise and show respect when a person will lose work time as a result. Therefore, a self-employed person is not required to stand up, should he be working when an elderly person comes by, and a worker in the employ of someone else is not permitted to rise while he is working, since he is taking away from the time he owes his employer. In other words, an employee is not permitted to be machmir and stand up when it costs money to a third party. Although one can argue that, in today’s business environment which accepts reasonable coffee breaks and other occasional, brief interruptions, it is permitted for an employee to stand up to show respect for a talmid chochom, we learn a very important lesson how halacha views the responsibility of an employee to his employer. This discussion will be left for a different, future article.

Standing up while learning Torah

The halacha is that someone in the middle of studying Torah is required to stand up for a talmid chochom or for an elderly person (when the halacha requires, as explained above). This is because of a general rule that performing mitzvos of the Torah pushes aside studying Torah.

Transported

What is the halacha, if the elderly person is being carried or wheeled in a wheelchair? Is there still a responsibility to rise when he passes within four amos? The answer is that there is a responsibility to rise when the elderly person passes by, regardless as to whether he is walking or being transported (see Kiddushin 33b). Therefore, it is required to stand up when an older person passes you while he is being pushed in a wheelchair.

As I mentioned above, you are required to stand up for an elderly person, once he is within four amos of where you are. There is a dispute among authorities whether you may sit down as soon as the scholar, or elderly person, passes by, or whether you should wait to sit down until he has passed beyond your four amos (Birkei Yosef, Yoreh Deah 244:12; Aruch Hashulchan, Yoreh Deah 244:13).

At this point, we can address our opening question:

“Am I required to stand up anytime I see a senior citizen walking down the street?”

The answer is that if he is over seventy years old (or appears to be), observes halacha, and you are not busy earning a living, you are required to stand up for him, once he is within your four amos.

In shul or while davening?

Is there a mitzvah to stand up for a talmid chochom or an elderly person when you are in the middle of davening? There is an authority who contends that since you are in the middle of showing respect to Hashem, you should not, then, show respect for a human, who is, himself, required to show respect to Hashem (quoted by Birkei Yosef, Yoreh Deah 244:1). However, the other halachic authorities disagree, contending that fulfilling Hashem’s mitzvah is showing respect to Hashem, and, therefore, should be observed while you are davening (see Birkei Yosef ad locum and Shu”t Radbaz that he quotes).

Your whole house

The Birkei Yosef raises the following question: In general, halacha considers your entire house to be one area of four amos. This has many halachic ramifications. For example, upon awaking in the morning most people wash their hands somewhere in the house, without being careful that they walk less than four amos before doing so.

The question he raises is whether we consider the entire house to be four amos germane to standing up for an older person. If we do, that would mean that whenever you are indoors and you see an older person walking around or being transported in the same house, you are required to remain standing up for him until he reaches his destination, even if he never comes within your four amos!

The halachic authorities conclude that there is no difference between being inside or being outside – in either instance, you are not required to stand until the older person is within your four amos. This is because the point of four amos germane to this mitzvah is that a greater distance away is not apparent that you are standing to demonstrate honor. This is true whether you are indoors or outdoors, and, therefore, there is no requirement to stand up indoors for an older person until he is within your four amos (Birkei Yosef, Yoreh Deah 244:5).

Discordant scholar

The Aruch Hashulchan (Yoreh Deah 244:13) rules that there is no requirement to stand up to show respect for a Torah scholar who creates disputes that are not for the sake of Heaven. This ruling would also apply to an elderly person who creates disputes that are not lesheim shamayim. Even if he meets the age requirement and is observant, if he is a baal machlokess, there is no mitzvah to rise for him.

Can’t see

Does the mitzvah to stand up for a talmid chochom or an elderly person apply when the honoree will be unaware that you did so, such as, if he cannot see? The She’eilos Uteshuvos Halachos Ketanos (1:154) rules that you are not required to stand up for an older person who cannot see that you did so (quoted by Shearim Hametzuyanim Behalacha 144:5). However, many other authorities dispute this conclusion (Birkei Yosef, Yoreh Deah 244:2).

Conclusion

When the posuk (Bereishis 24:1) mentions that Avraham Avinu got older, it uses the expression, ba bayamim, “he came with his days,” the first time this expression occurs in Chumash, even though many people had lived much longer than Avraham. The Gemara explains that this was the first instance of a person looking like an old man. Most people are sensitive about looking older, but the Midrash writes that Avraham Avinu asked to look elderly, so that people would know to treat him with respect! As the Gemara expresses it, “Until the time of Avraham, there was no concept in the world of people looking old. Someone who wanted to talk to Avraham, would (by mistake) go to Yitzchok, since they looked so similar, and vice versa. Avraham then prayed to Hashem, and the concept of appearing elderly began for the first time in history” (Bava Metzia 87a). The Bereishis Rabbah adds, “Avraham requested to look old. He said to Hashem, ‘Creator of all worlds, a man and his son can arrive in a place, and no one knows which of them to honor. If you crown him with the appearance of being elderly, people know whom to honor!’ Hashem answered him. ‘You requested it; it will begin with you.’ From the beginning of the Torah, until Avraham, there is no mention of anyone getting old” (Bereishis Rabbah 65:9).

Avraham Avinu’s outlook should serve as a wise counterbalance to modern society’s adulation and adoration of youth. This approach makes aging something to dread, rather than something deserving of respect. Instead, Avraham Avinu referred to signs of advanced age as a well-earned “crown.”

My Vows I Shall Fulfill #2

Question #1: Can performing a mitzvah be a liability?

Question #2: What is hataras nedarim?

Question #3: How does Kol Nidrei work?

Question #4:

Yankel asked me the following question: “When I attended a Gemara shiur on Nedarim, I got the impression that performing hataras nedarim requires having a talmid chacham deliberate over the specific neder, until he concludes that there are grounds to release the neder. This seems to have no relationship to what we do on Erev Rosh Hashanah.”

Answer:

This week we will continue last week’s article on the topic of vows, oaths, and pledges. As we mentioned there, someone who recites a vow, an oath or a pledge is required to fulfill it (see Bamidbar 30:3). By virtue of the vow, oath or pledge, he now has a Torah obligation to observe something that he is otherwise not required to do. We also discovered that, for reasons discussed in last week’s article, one should be careful not to make vows or pledges. Here is a review of the six main ways to create an obligation upon oneself, either to fulfill something or to abstain from doing something:

(1) Nedarimvows

(2) Shevuosoaths

(3) Kabbalas mitzvah, declaring that one will perform a good deed

(4) Pledges to tzedakah, intending to donate charity

(5) Stringencies – performing a halachic chumra

(6) Doing something three times

The details of how these various activities become halachic responsibilities vary from category to category, and the outline of these rules was discussed in last week’s article. There we were taught that to avoid creating these commitments, someone expressing intent to perform a good deed should be careful to say that he/she is acting bli neder, without accepting it as an obligation. Similarly, someone who begins practicing a halachic hiddur should say, or at least think, that he is not accepting it as an obligation.

In addition, we presented last week how to release ourselves from vows and pledges via aprocess called hataras nedarim, which removes the continuing obligation to fulfill the vow. We noted that someone who violated his vow prior to performing hataras nedarim has sinned and is required to perform teshuvah for his or her infraction. In the case of a pledge to tzedakah¸ there is an additional requirement to pay it as soon as possible; otherwise, someone might violate the prohibition of bal te’acheir leshalmo – “Do not delay paying it” (Devarim 23:22).

If one contemplates making a vow or an oath, at what point has an oath been created? In most instances, thinking about making an oath or vow, or even deciding to do so without expressing it, does not create an oath. The vow or oath is created only by enunciating it.

If someone states the words of an oath or vow, but has no intention to accept an obligation upon himself, no oath or vow has been created. This is referred to by the Gemara as piv velibo shavim – his mouth and his heart are equal. In other words, his intent and his statement are both required in order to create an oath or vow. If he did not intend to create an oath or vow, the words alone do not create one because libo, his heart, meaning, his intention, was not to make an oath or vow.

What is the halacha if he wanted to make an oath or vow and began expressing it, but said something that is not a correct formula for either an oath or a vow? The halacha is that there are times when this is not a valid oath or vow, because what he said is insufficient to qualify, and there are other times when it is valid. Although the details are more complex than we will deal with in this article, we will discuss two instances in which the oath or vow is valid and must be kept.

  1. Yad nedarim – when the statement is incomplete. The word yad means a hand, but also can mean a handle. In this instance, it means that, although the vow was not fully expressed, enough of it was said to understand the person’s intent. He provided a “handle” with which the verbalization of the vow can be “held.” For example, if someone declared muderani mimcha, “I vow from you,” the person who states this is prohibited to talk to the other person until he has hataras nedarim performed (see Shulchan Aruch, Yoreh Deah 206:1).
  2. Nickname nedarim – when the neder is expressed in a colloquial fashion. The words themselves are not meaningful, but colloquially this is understood to be a neder. The halachic term used in the Mishnah for these nedarim is kinuyim, which means a nickname (Nedarim 2a). An example of this is someone declaring, “This loaf of bread is konam to me,” who is now prohibited to eat the loaf of bread.

The Gemara quotes a dispute between early amora’im why kinuyim are valid. According to one amora, this was an attempt by non-Jews to imitate Hebrew, but because of their native accents, the words ended up sounding very strange. Nevertheless, once these words became accepted to mean what was intended, they will now create an oath or vow. In other words, language in general is what people mean and is conventionally accepted. Every spoken language is constantly in flux, and, as people use the language, dialects and colloquialisms develop. These are all acceptable uses of the language. For our halachic purposes, these peculiar usages for expressions, such as “oath,” “vow” and the like, are considered part of the language – and, therefore, the oath or vow was stated. According to this approach, the word konam was originally a slang word of non-Jews meaning korban.

The other approach of the Gemara explains that the terms called kiyunim by the Mishnah were deliberate creations of Chazal. Chazal realized that since the posuk refers to a korban laShem, the most common way someone will refer to a vow not to use an item will be to say, “this item is a korban for G-d,” meaning that the item may not be used just as a korban may not be used. When doing so, the person may use Hashem’s name as we express it in Hebrew. Although halachically doing this it is not considered taking Hashem’s name in vain, it can easily lead to someone using Hashem’s name inappropriately and violating the Torah prohibition of lo sisa es sheim Hashem Elokecha lashav (Shemos 20:7). In order to avoid and discourage this, Chazal instituted a different nomenclature, specifically for the purpose of oaths and vows, whose purpose is to discourage people from using Hashem’s name without purpose.

According to both approaches that I have presented, the statement, “This loaf of bread is konam to me”means that he has made a vow that the loaf of bread is prohibited for him to eat, just as he is prohibited from eating a korban.

May I appoint an agent to perform hataras nedarim for me?

No, one must ask the beis din directly to release himself from vows (Shulchan Aruch, Yoreh Deah 228:16). If the members of the beis din do not understand the language that the nodeir speaks, they may use an interpreter to facilitate communication (Rema ad loc.).

There is one instance in which someone may make another person an agent to release nedarim. Sometimes, a husband may act as an agent for his wife to annul her nedarim. If a husband finds three people already gathered together – for example, they were performing hataras nedarim for him or for someone else – he may act as his wife’s agent to ask them to release her neder at the same time, if she appointed him to do so (Shulchan Aruch, Yoreh Deah 234:56). However, he may not gather three people together to become a beis din for the purpose of hataras nedarim.

How does a woman perform hataras nedarim?

A woman who has a specific oath, vow, or practice from which she wishes release should arrange to perform hataras nedarim with a talmid chacham or beis din. As mentioned above, if she is married, she may ask her husband to be her agent to perform hataras nedarim, according to the instructions I wrote above (Shulchan Aruch, Yoreh Deah 234:56).

Hataras nedarim on erev Rosh Hashanah

At this point, we can address Yankel’s question:

“When I attended a Gemara shiur on Nedarim, I got the impression that performing hataras nedarim requires having a talmid chacham deliberate over the specific neder, until he concludes that there are grounds to release the neder. This seems to have no relationship to what we do on Erev Rosh Hashanah.”

Indeed, Yankel’s question is valid: hataras nedarim requires mentioning specifically the vow that one desires to release, and the beis din must deliberate whether this particular neder can be revoked. Thus, it is unclear whether the generic hataras nedarim recited on Erev Rosh Hashanah, indeed, releases one from any commitments. The proper thing to do is to mention to an appropriate beis din every specific neder or practice for which one seeks annulment. What, then, is the purpose of hataras nedarim on Erev Rosh Hashanah.

Mesiras moda’ah

The Gemara mentions that a declaration at the beginning of the year that all vows one will make in the course of the year are invalid has some value. This declaration is called a mesiras moda’ah.The Gemara concludes that this statement has only limited value, and one should not intentionally rely upon it. In point of fact, the standard hataras nedarim procedure performed on Erev Rosh Hashanah includes a mesiras moda’ah.

Kol Nidrei

The rishonim dispute whether the purpose of Kol Nidrei that we recite at the beginning of our Yom Kippur service is also meant to be a form of hataras nedarim, performed at a time when virtually everyone is in shul to include the maximum number of people, or whether it is a mesiras modaah. It is for this reason that there are three different versions of the text: one that has Kol Nidrei refer to the past year’s declarations, which means that it is hataras nedarim; one that refers to the coming year’s declarations, which means that it is a mesiras modaah; and one that mentions both the past and the future years, which means that it is meant to accomplish both. From my experience, most congregations today follow the third approach.

There is another interesting difference in halachic practice that results from this last dispute: Should the congregation recite Kol Nidrei together with the chazzan? If it is a mesiras modaah, then one must declare it oneself, and each individual should read the Kol Nidrei together with the chazzan. On the other hand, if it is a form of hataras nedarim, then it should be declared by the chazzan, alone, accompanied by the two honored men alongside him who hold the sifrei Torah, so that they form a beis din that is annulling everyone’s nedarim. The Mishnah Berurah (619: 2) rules that we should consider it a mesiras modaah, and therefore concludes that each individual should recite Kol Nidrei softly along with the chazzan.

Conclusion

Now that we realize how serious our speech can be, we should reflect not only on the ideas of nedarim, but also on all the ramifications of our speech. As the pasuk (Mishlei 18:21) states, Ma’vess ve’chayim be’yad lashon – Life and death are controlled by our tongues!

My Vows I Shall Fulfill

Question #1: Quiz question

Can performing a mitzvah become a liability?

Question #2: Is this a “klutz question?”

What does it mean that I am doing something “bli neder”?

Question #3: A frum question

“My friend Billy Nader says bli neder on almost everything. Is this being too frum?

Answer:

What is a neder?

It is rather obvious why we are studying this topic this week – since Parshas Matos begins with the laws pertaining to vows.

Someone who recites a vow, an oath or a pledge is required to fulfill it (see Bamidbar 30:3). By virtue of the vow, oath or pledge, one creates a Torah obligation that he is otherwise not required to observe. For example, someone who declares that he will begin studying daf yomi every day is now obligated to do so, even on a day when it is inconvenient. Similarly, one who pledges tzedakah at yizkor or pledges a contribution to a shul upon receiving an aliyah becomes fully obligated, min haTorah, to pay the donation. In the case of a pledge to tzedakah¸ one must redeem it as soon as practical; otherwise, he risks violating an additional prohibition, bal te’acheir leshalmo, “Do not delay paying it” (see Devarim 23:22).

In general, one should be careful not to make vows or pledges. For one thing, one who does so has now created a stumbling block for himself, since he runs the risk that he will not observe his commitment (see Nedarim 20a, 22a). Furthermore, he has created an accusation against himself, for by committing to observe something that the Torah did not require, he implies that he is so skilled at observing mitzvos that he can add a few of his own. The satan can now level accusations against his occasional laxities in a much stronger fashion (see Nedarim 22a, based on Mishlei 20:25). (There are a few circumstances in which one is encouraged to make vows, but we will leave that topic for a different time.) For this reason, it is better not to pledge to contribute to tzedakah: if you have the money available, donate it; if it is not currently available, don’t pledge it! (Shulchan Aruch, Yoreh Deah 203:4). It is very important that gaba’im be in the habit of declaring that people’s pledges are bli neder, and a similar wording should appear on pledge cards.

Different types of obligations

There are six main ways to create an obligation upon oneself, either to fulfill something or to abstain from doing something.

(1) Nedarim – vows

A neder – a vow, in which one declares that something otherwise permitted is now prohibited – such as declaring that certain foods are prohibited.

Example:

In her desire to keep to her diet, Yaffah states: “I am going to prohibit all chocolate on myself.” Yaffah has now created a neder, which prohibits her, min haTorah, from eating chocolate.

(2) Shevuos – oaths

A shevuah – an oath, in which one swears to fulfill or refrain from some activity – such as swearing that one will fast on a certain day, or that one will say Tehillim every day.

Example:

To repair his somewhat sloppy record at making it to minyan every morning, Shachar makes a shevuah that he will be in shul for shacharis for the next three days. Should he fail to make it to shacharis any of those days, he would be breaking his shevuah, which contravenes a Torah prohibition.

Whether a specific declaration constitutes a neder or a shevuah depends on halachic technicalities, usually contingent on how one makes the declaration. Several halachic differences result from whether someone made a neder or a shevuah, including that violating a shevuah is a more serious infraction (Ran, Nedarim 20a). Later in this article I will mention another important difference between them.

(3) Kabbalas mitzvah, declaring that one will perform a good deed

Someone who declares: I will arise early and study this chapter or that mesechta has declared a great vow to the G-d of Israel (Nedarim 8a). Someone who expresses these plans, intending to perform an exemplary act, has now obligated himself, even though he did not use the terms “vow,” “oath,” or “pledge” (Shulchan Aruch, Yoreh Deah 213:2).

Example:

Asking others to say certain chapters of Tehillim can create a stumbling block. Specify that it is being done bli neder.

(4) Kabbalas tzedakah, intending to donate charity

In the specific instance of contributing tzedakah funds, even deciding to give tzedakah without verbalizing one’s intention creates an obligation to donate tzedakah (Rema, Yoreh Deah 259:13; see also Choshen Mishpat 212:8; based on Shevuos 26b).

(5) Performing a stringency

Someone who is aware that performing a certain hiddur in halacha is not obligatory, and begins to keep it with the intention of observing it regularly, becomes required to continue the practice as a form of vow. It becomes a binding obligation, requiring hataras nedarim, annulling vows – even if the individual fulfilled the practice only one time, and even if he did not declare that he intends to continue the practice (Nedarim 15a; Shulchan Aruch, Yoreh Deah 214:1).

Examples:

Someone who begins standing during kerias haTorah, intending to continue the practice, becomes obligated to do so, unless he specified that he is doing so bli neder. He should perform hataras nedarim at the first opportunity, so as to avoid violating the prohibition of abrogating observance of a vow. After performing hataras nedarim, he may continue the practice of standing during kerias haTorah, but should have in mind that he is doing it bli neder.

A woman began lighting a third Shabbos candle in her own home after her first child was born. This practice might now become an obligation. She then did so the first time she visited her parents’ house; most women who kindle more than two lights before Shabbos do so only in their own home, but kindle only two when they are guests in someone else’s home. She asked a shaylah whether she should have hataras nedarim on the practice of kindling a third light, and she was told to do so.

(6) Three times

Someone who performs a stringent practice three times without saying bli neder must continue to fulfill the hiddur, even if he had not planned to observe it always (Kitzur Shulchan Aruch 67:7).

Saying “bli neder

Should I not observe hiddurim? I want to do these mitzvos, but I certainly do not want to be punished if I fail to continue performing them! How do I avoid becoming obligated?

To avoid creating this commitment, someone expressing intent to perform a good deed should be careful to say that he/she is acting bli neder, without accepting it as an obligation (Kitzur Shulchan Aruch 67:4). Similarly, someone who begins practicing a halachic hiddur should say that he is not accepting it as an obligation.

Example:

Hadassah decides that she will eat only glatt kosher meat or will use only chalav Yisroel products, both meritorious activities. She should state that she is doing it “bli neder.”

Similarly, when pledging money during yizkor, while making a mishebeirach or making any other oral commitment to donate charity, one should be careful to say bli neder. When others are pledging to tzedakah and one feels pressured to participate, specify that the pledge is bli neder (Shulchan Aruch, Yoreh Deah 257:4). It is still proper to donate the money, but stating that it is prevents bli neder a mishap should one forget or later be unable to do so.

Saying “bli neder” even for a non-mitzvah

Some authorities recommend saying bli neder on all one’s activities, even those that do not fulfill a mitzvah, so that the habit helps prevent one from inadvertently creating nedarim (Kitzur Shulchan Aruch 67:4).

Example:

Chavah tells her husband, “I am going to exercise class this morning, bli neder.” Although the statement that she plans to exercise does not create any obligation on her part, habituating herself to say bli neder is a good practice to develop.

We can now answer one of the questions asked above. “I have a friend who says bli neder on almost everything. Is this being too frum?” The answer is that your friend is being astutely cautious and following the advice of halachic authorities.

Don’t delay paying

In addition to the abovementioned concerns involved in pledging tzedakah, the Gemara rules that the mitzvah of bal te’achar, not to delay the donation of a korban, applies also to tzedakah (Rosh Hashanah 6a). This means that someone who pledges money to a charitable cause is required to pay the pledge as soon as he can.

To quote the Rambam: Tzedakah is included in the laws of vows. Therefore, someone saying, “I am obligated to provide a sela coin to tzedakah,” or, “This sela shall go to tzedakah,” must give it to poor people immediately. If he subsequently delays redeeming the pledge, he violates bal te’acher, since he could have given it immediately, as there are poor people around. If there are no poor people, he should set aside the money until he finds a poor person. However, if, at the time of his pledge, he specified that he is not intending to redeem the pledge until he locates a poor person, he is not required to set aside the money (Hilchos Matanos Aniyim 8:1).

Someone who declares that he will give tzedakah to a certain poor person is not required to give the money until he sees that person (Rema, Yoreh Deah 257:3). However, someone who pledged to contribute to destitute people, without qualifying which poor people he meant, is required to fulfill his pledge immediately (Mordechai, Bava Basra 491).

What is hataras nedarim?

Now that we realize that creating obligations is rather extensive, we want to find out, quickly, how to release ourselves from these vows.

Chazal derive from the Torah that one can be absolved from a vow, pledge or other such commitment, by a process called hataras nedarim. Hataras nedarim does not, in the slightest way, diminish the reward that one receives for the good deeds performed. It simply removes the continuing obligation to fulfill the vow from the individual who created that vow. Therefore, in the vast majority of circumstances, someone who made a neder should undergo hataras nedarim, so that he releases the obligation from himself and therefore does not violate the neder (see Nedarim 22a).

How does one undergo hataras nedarim?

The person who made the vow or other commitment goes to three Jewish men who understand the logic of halacha and know the basics of how hataras nedarim operates (Shulchan Aruch, Yoreh Deah 228:1 and commentaries). These three form a type of ad hoc beis din for the purpose of releasing vows. One of the three should be a talmid chacham, proficient in the laws of hataras nedarim – and he should be knowledgeable concerning which vows one may not annul (Shulchan Aruch, Yoreh Deah 228:14; Kitzur Shulchan Aruch 67:8).

The nodeir, the person who made the vow, shares with the three (or, at least, with the talmid chacham who is proficient in the laws of nedarim) the content of the vow, oath, or good practice from which he desires release and why he seeks relief. The talmid chacham asks the nodeir several questions that must be answered truthfully. The talmid chacham thereby determines whether there are valid grounds to release the nodeir from the commitment (Shulchan Aruch, Yoreh Deah 228:14). Only a talmid chacham who understands the very complicated laws of vows should undertake hataras nedarim, because many details must be met for the hataras nedarim to be valid. (The details of what constitutes an adequate basis for hataras nedarim are beyond the scope of this article.)

Once the talmid chacham feels that there are adequate grounds for hataras nedarim, the beis din declares the neder or other commitment annulled by declaring, “mutar lach, mutar lach, mutar lach” – the activities prohibited by the vow are now permitted. Of course, in the case of a vow to do something, the words mutar lach mean the reverse – the person is no longer obligated to carry out the vow.

Someone who violated his vow prior to performing hataras nedarim has sinned, and is required to perform teshuvah for his or her infraction.

The difference between a neder and a shevuah

There is a halachic difference between performing hataras nedarim to release someone from the obligation he created with a neder, and performing hatarah after someone recited a shevuah. Whereas, in most instances, one should arrange to release someone from a neder, one annuls a shevuah only under extenuating circumstances (Rema, Yoreh Deah 203:3; Rambam end of Hilchos Shavuos). Explaining why this is so will need to wait for a future article.

When has a vow or an oath been created? We’ll discuss that in part 2 of this article.

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