Mizmor Lesodah, Parshas Tzav and Erev Pesach

 

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IFQuestion #1: Korban Todah or bensching Goimel?

“Which is the better way to thank Hashem for a personal salvation, by reciting birchas hagomeil, or by making a seudas hodaah?”

Question #2: Bringing home the bread!

“Why is the korban todah accompanied by so many loaves of bread and so much matzoh?”

Question #3: Mizmor Lesodah and Pesach

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

Answer:

Although Chapter 100 of Tehillim is known by its opening words as Mizmor Lesodah, there actually are two different chapters of Tehillim, #100 and #107, that devote themselves to the thanksgiving acknowledgement of someone who has survived a major physical challenge. In Psalm 107, Dovid Hamelech describes four different types of treacherous predicaments: traveling through the desert, traveling overseas, illness, and imprisonment, in which a person would pray to Hashem for salvation. When the person survives the travails and thanks Hashem, the following passage reflects this thanks, Yodu lashem chasdo venifle’osav livnei adam, “they acknowledge thanks to Hashem for His kindness and His wondrous deeds for mankind.” These words are repeated four times, once after each of the situations is described.

The Gemara cites this Psalm as the source for many of the laws of birchas hagomeil, the brocha we recite when surviving these calamities. Actually, someone who survived these predicaments should offer a korban todah, which is described in parshas Tzav. The birchas hagomeil is recited in place of the korban todah that we cannot bring, since, unfortunately, our Beis Hamikdash lies in ruin (Rosh, Brachos 9:3; Tur, Orach Chayim 219).

What are the unusual features of the korban todah?

The korban todah is a specialized variety of shelamim, whose name means, according to the Toras Kohanim, that it creates peace in the world, since the owner, the kohen and the mizbeiach (the altar) all share in consuming it (quoted by Rashi, Vayikra 3:1). A shelamim, which was perhaps the most common korban in the Beis Hamikdash, was offered to express the desire to draw closer to Hashem from a sense that one lacks nothing in his physical life (see Commentary of Rav Hirsch, Vayikra 3:1).

The korban todah is offered following the general procedures and rules of a shelamim; however, it has several unique features. The first is that the korban itself is accompanied by a huge amount of bread, called korbanos mincha (plural, menachos), a total of forty loaves. Thirty of these comprise ten loaves each of three varieties of matzoh. However, the remaining ten loaves are highly unusual: first of all they are chometz, and this is the only instance of a private korban that includes chometz. (There is only one other korban any time that is chometz, and that is the two loaves offered by the community on Shavuos.) As a result, the korban todah could not be offered on Erev Pesach or on Pesach itself.

The chometz loaves are unusual in another way, in that each of them is three times the volume of the matzoh loaves (see Menachos 76b). Thus, the ten chometz loaves were, together, of equal size to the thirty matzohs.

Of the four varieties of mincha that accompany the korban todah, one of each type of loaf is given to the kohen to take home and consume together with his family and friends. The other 36 loaves are given to the offerer of the korban.

There is another unusual facet of the korban todah offering. Whereas a korban shelamim may be eaten until nightfall of the next day after it is offered, the korban todah must be eaten before the morning after it was offered, a much shorter period of time. Chazal further shortened the time it may be eaten — permitting it to be eaten only until halachic midnight — to assure that no one eat the korban when it is forbidden.

Thus, there are two ways in which the korban todah is treated differently from an ordinary shelamim: The todah is accompanied by an absolutely huge amount of bread, made from a total of twenty isronim of flour, which is twenty times the amount of flour that requires one to separate challah. Half of this bread is chometz and half matzoh, and it must be consumed within a very short period of time.

Why would the Torah “impose” these additional requirements on the offerer of the korban? Well, let us figure out what is he going to do. He has a significant amount of holy meat that must be eaten by midnight, and a huge amount of accompanying bread with the same restrictions. What will he do?

Presumably, he invites a large crowd to join him in his feast and thereby explains to them the reason for his repast. Thus, we increase the appreciation of others for the thanksgiving that Hashem has provided him. This now leads us directly into our discussion of the chapter of Tehillim that begins with the words Mizmor Lesodah.

Mizmor Lesodah

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

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

We can now understand better why the Mizmor Lesodah chapter of Tehillim is structured as it is. It provides the beneficiary of Hashem’s miracle with a drosha to present at the seudas hodaah that he makes with all the bread and meat that he does not want to go to waste — complete with encouragement to others to internalize our thanks to Hashem.

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

Mizmor Lesodah on Shabbos

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

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

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

Mizmor Lesodah on Chol Hamoed Pesach

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

Mizmor Lesodah on Erev Pesach

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

With this background, I can now begin to address the third question raised above.

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

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

Mizmor Lesodah and our daily davening

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

Desktop Gardening, Or Growing Vegetables in Thin Air

vegetable gardenWell, not quite thin air, because plants, like the rest of us, require nutrients and water to grow. Although the word “aeroponics” does not show up in either of the dictionaries I use for handy reference, and is totally ignored by my spellchecker, it is actually common enough that it should be appearing in any current dictionary of the English language. I admit that I had no idea what the word meant when Yehudah asked me the following shaylah:

“To overcome the many problems that may be involved in purchasing products during shemittah, we want to purchase a large aeroponics kit and grow our own vegetables. Will this present us with any halachic problems in terms of either the laws of shemittah, or the laws of kelayim?”

And so, I began my education about this subject. This is what I discovered:

Aeroponics is a method of growing vegetables or herbs without soil by spraying the plant roots with water and nutrients (as opposed to hydroponics where the roots are submerged in a nutrient solution). Although it can be done on a commercial scale, the company Yehudah contacted sells aeroponic kits for growing herbs and vegetables in the comfort of one’s home. Each kit includes the seeds and nutrients required for specific types of plants, a complete, self-contained, open-top growing tank that includes its own light fixtures and instructions on how to make it all work. Just add water and electricity to run the pump and lights.

The company advises growing lettuce, herbs, tomatoes, peppers, or strawberries each in its own tank, since they have quite different needs. Nevertheless, the first question we will discuss is whether this is a halachic requirement to do so because of the prohibition of kelayim.

WHAT IS KELAYIM?

It is important to clarify a common misconception. The prohibition of kelayim is not the creation of a new species; it is the appearance that one is mingling two species together. This is why hauling loads with two species of animal, grafting one tree species onto another, mixing wool and linen in a garment or planting grains in a vineyard are all Torah violations of kelayim, although none of these acts affect the genetic make-up of the species.

Yehudah’s question involves two halachic topics:

  1. Kelayim

Could someone gardening on his desktop possibly violate the mitzvah of kilei zera’im, which prohibits planting two species together or near one another? Violating this prohibition requires three basic conditions, all of which Yehudah met:

  1. The prohibition applies to herbaceous, as opposed to woody plants, meaning that it does not apply to trees and shrubs, but it does apply to vegetables and many herbs. Thus, one may plant seeds of different trees together, yet one is forbidden to plant a mix of vegetable seeds (Rambam, Hilchos Kelayim 1:6).
  2. The prohibition of kilei zera’im applies only to edible crops (Rambam, Hilchos Kelayim 1:4). Thus, one may plant seeds of different ornamental flowers and grasses within close proximity.
  3. It applies only in Eretz Yisroel (Kiddushin 39a), and is min hatorah according to most halachic authorities, even today (implied by Rambam, Hilchos Kelayim 1:1). (However, note that in Rashi’s opinion [Shabbos 84b, s. v. ve’achas] the prohibition of kilei zera’im in Eretz Yisroel is only miderabbanan and Tosafos [Yevamos 81a, s.v. mai] contends that although kilei zera’im is essentially min hatorah, in our era it is only rabbinic because most of the Jewish people do not currently live in Eretz Yisroel.) Therefore, someone in Chutz La’Aretz may plant his backyard garden with a wide variety of herbs and vegetables, without any concern for how close they are, whereas in Eretz Yisroel, someone planting a garden patch must be very careful to keep the different species separate (Rambam, Hilchos Kelayim 1:3). I will discuss later how far apart one must plant different species to avoid violating this prohibition (see Chazon Ish, Hilchos Kelayim 6:1).
  4. Shemittah

One may not plant in Eretz Yisroel during shemittah. Does planting this indoor garden in Eretz Yisroel violate the laws of shemittah?

Yehuda’s question requires analyzing the following subjects:

Do these mitzvos apply when planting indoors?

Would they apply when planting outdoors in a pot or planter that is disconnected from the ground?

Do they apply when one is not planting in soil?

INDOORS

Two Talmudic passages discuss whether agricultural mitzvos apply indoors. In Eruvin (93a), the Gemara prohibits planting grain in a vineyard that is underneath a roof extending from a house. This passage implies that agricultural mitzvos apply within physical structures.

On the other hand, the Talmud Yerushalmi (Orlah 1:2) discusses whether three agricultural mitzvos, orlah (the prohibition to use fruit produced in the first three years of a tree’s life), maaser (tithing produce), and shemittah, apply to indoor plants. The Yerushalmi rules that whereas orlah applies, there is no requirement to separate maaser on produce grown indoors. The Yerushalmi questions whether shemittah applies to indoor produce, but does not conclude clearly whether it does or not.

WHY IS ORLAH DIFFERENT FROM MAASER?

The Yerushalmi notes that when the Torah instructs us to separate maaser, it states: You shall tithe all the produce of your planting, that which your field produces each year (Devarim 14:22). Since the Torah requires maaser only on produce of a field, there is no requirement to separate maaser from what grows indoors, since, by definition, a field is outdoors. Therefore, one need not separate maaser min hatorah when planting indoors, even if one is planting directly in the soil floor of the structure. (The Rishonim dispute whether there is a rabbinic requirement to separate terumos and maasros when planting in the ground within a building; see Rambam and Raavad, Hilchos Maasros 1:10.)

However, when the Torah describes the mitzvah of orlah, it introduces the subject by stating When you will enter the Land (Vayikra 19:23). A tree planted indoors is definitely in the Land of Israel, and thus is included within the parameters of this mitzvah, even if it is not in a field.

SHEMITTAH INDOORS

Do the laws of shemittah apply to produce grown indoors? Does shemittah apply only to a field, or to anything planted in the Land of Israel?

The Yerushalmi notes that when the Torah discusses the mitzvah of shemittah, it uses both terms, land (Vayikra 25:2) and field (Vayikra 25:4). It is unclear how the Yerushalmi concludes and the poskim dispute whether the mitzvah of shemittah applies indoors in Eretz Yisroel. Ridbaz (Hilchos Shevi’is, end of Chapter 1), Chazon Ish (Shevi’is 22), and Pnei Moshe all rule that it does; Pe’as Hashulchan (20:52) rules that it does not. Most later authorities conclude that one should not plant indoors during shemittah, at least not in the soil. I will discuss, shortly, whether one may plant during shemittah indoors hydroponically or in an indoor area where the dirt floor is covered.

INDOOR KELAYIM

May one plant different species next to one another indoors? Does the prohibition of kelayim apply to produce planted under a roof?

Based on the Talmud Yerushalmi we quoted above, we should be able to establish the following rule:

When the Torah commands that a specific mitzvah applies to the land, it is immaterial whether the planting is indoors or outdoors. However, when the Torah commands that a mitzvah applies to a field, it does not apply indoors. As noted above, an indoor area can never be called a field.

How does the Torah describe the mitzvah of kilei zera’im? The Torah states “you shall not plant kelayim in your field” (Vayikra 19:19), implying that the mitzvah does not apply indoors. Thus, we should conclude that there should be no prohibition min hatorah against planting herbs or vegetables proximately if they are indoors. (Nevertheless, both the Yeshuos Malko [Hilchos Kelayim 1:1] and the Chazon Ish rule that kilei zera’im does apply indoors and apparently disagree with the above analysis. I will take this into consideration later.) However, it is probably prohibited miderabbanan, according to the opinion that the Sages required tithing produce grown indoors.

BUT…

At this point, the discerning reader will note a seeming discrepancy with the passage from Eruvin 93a that I cited earlier. The Gemara rules that one may not plant grain in a roofed vineyard, implying that kelayim does apply indoors. This seemingly conflicts with my conclusion based on the Yerushalmi that one may plant different herbs or vegetables proximately indoors, without violating the prohibition of kelayim.

THE SOLUTION: GRAPES VERSUS VEGETABLES

The answer is that there is a major halachic difference between the two cases: Planting grain in a roofed vineyard violates kilei hakerem, planting other crops in a vineyard. Although both kilei hakerem and kilei zera’im are called kelayim, kilei hakerem is a separate mitzvah and is derived from a different pasuk than the one prohibiting kilei zera’im, planting herbaceous species together. The Torah commands us about kilei hakerem by stating: “You shall not plant your vineyard with kelayim (Devorim 22:9), using the word vineyard, not field. Whereas a field cannot be indoors, a vineyard could.

At this point, we have resolved the first of our questions asked above:

“Do these mitzvos apply when planting in a covered area?”

The answer is that planting kelayim species should seemingly not apply, although some prominent authorities disagree. Shemittah does apply, according to most poskim.

FLOWERPOTS

We now progress to our next question:

Do agricultural mitzvos apply to plants growing in Eretz Yisroel in closed pots and planters that are separated from the ground and yet exposed to the elements?

The Mishnah (Shabbos 95a) teaches that someone who plants in a flowerpot that has a hole in its bottom, called an atzitz nakuv, violates Shabbos as if he planted in the earth itself. However, planting in a flowerpot that is fully closed underneath, called an atzitz she’aino nakuv, is forbidden only because of rabbinic injunction and does not involve a Torah-prohibited violation of Shabbos. The same categories usually apply to agricultural mitzvos: plants in a pot with a hole in the bottom are equivalent to being in the ground itself; those whose bottom is completely sealed are included in agricultural mitzvos by rabbinic injunction.

Therefore, one must separate terumah and maaser from produce grown in pots or planters, whether or not the containers are completely closed underneath, and one would violate kelayim if one planted two species near one another in a flowerpot or other container.

There are some exceptions to this rule. In some instances, planting in a closed container is the same as planting in the ground. According to the Rambam [Hilchos Maaser Sheni 10:8] and the Shulchan Aruch [Yoreh Deah 294:26], orlah applies min hatorah to a tree planted in a closed flowerpot. The reason for this phenomenon is that a tree root will, with time, perforate the bottom of its pot, and therefore, it is already considered to have a hole and be part of the ground below.

SHEMITTAH IN A HOTHOUSE

On the other hand, there are also poskim who contend that shemittah does not apply at all, even miderabbanan, to items planted in a planter or flowerpot whose bottom is completely closed. What is the halacha if one plants in a covered area in a pot that is completely closed underneath? May one be lenient, since the pot is both indoors and is also an atzitz she’aino nakuv, which is not considered connected to the earth min hatorah? This question leads us directly to the following question that Israeli farmers asked, about sixty years ago: May one plant in a hothouse during shemittah, in a closed-bottom vessel? As I mentioned above, although some authorities permit planting in the soil indoors during shemittah, the consensus is to be more stringent. However, many poskim permit planting in pots in a hothouse, if its floor is covered with a thick material, such as heavy plastic or metal (see Chazon Ish, Shevi’is 26:4; Mishpatei Aretz pg. 239; however, cf. Shu’t Shevet HaLevi who prohibits this).

AEROPONICS AND SHEMITTAH

At this point, we can discuss our original question: Aeroponics, like a hothouse, means growing indoors, and is also similar to planting atop a floor that is covered with metal or heavy plastic. Based on the above discussion, we may conclude that most authorities would permit planting aeroponically during shemittah, provided that the bottoms of the tanks are metal or plastic.

WHAT ABOUT KIL’EI ZERAIM?

We still need to explore whether desktop planting violates the laws of kilei zera’im.

I concluded above that there is probably only a rabbinic prohibition of kilei zera’im on indoor planting, but that some prominent authorities prohibit it min hatorah. Can we offer a solution for Yehudah’s plans? To answer this we need to address another issue.

KEEP YOUR DISTANCE

As I mentioned in the beginning of this article, kelayim occurs when different species are mingled together. If there is enough distance between the plants, no mingling is transpiring.

How far apart must I plant herbs or vegetables to avoid violating kelayim? This is a complicated topic, and its answer is contingent on such factors as how and what one is planting. I will, however, go directly to the conclusion that affects our case.

Since the desktop garden involves only herbs and vegetables and only a single plant or a few plants of each species, the halacha requires only a relatively small distance between species. Min hatorah one is required to plant only one tefach apart; the additional space requirement is rabbinic (see Rambam, Hilchos Kelayim 3:10). The poskim dispute how distant one is required to avoid a rabbinic prohibition. Some require that the plants are at least three tefachim apart [about ten inches] (Rashi, Shabbos 85a), whereas others determine that it is sufficient for the plants to be only 1½ tefachim apart [about five inches] (Rambam, Hil. Kelayim 4:9; Shulchan Aruch, Yoreh Deah 297:5). In the case of the aeroponically-grown produce, since the tanks are completely closed underneath, they have, at worst, the halachic status of atzitz she’eino nakuv, a closed pot or planter, considered part of the ground only because of rabbinic injunction, but not min hatorah. We can, therefore, conclude that as long as the seeds are placed more than a tefach apart, we avoid any Torah prohibition. As far as the possible rabbinic prohibition if the plants are only a bit more than one tefach apart, we could additionally rely on the likelihood that kilei zera’im does not apply indoors in an eino nakuv planter.

Having completed the halachic research, we corresponded with the company that produces the desktop planting kits, asking them how far apart are the holes in which one “plants” the seeds, and how many different herbs and vegetables can be planted in a single tank.

The company replied that the kit usually has seven holes, each four inches apart from the other, center to center. When planting peppers and tomatoes, which grow larger than the greens or herbs, the company recommends plugging four of the holes and using only three, which are far enough apart to avoid any kelayim issue, according to our conclusion. However, when planting herbs and greens, the distance between the holes is just about the distance that might present a halachic problem. I therefore advised Yehudah to plant in alternative holes, even when planting herbs of different varieties.

The Spectrum of Muktzah Utensils

Our parsha opens by mentioning the supremacy of the importance of observing Shabbos. We therefore bring…

The Spectrum of Muktzah Utensils

OLYMPUS DIGITAL CAMERAIn the period of the construction of the second Beis HaMikdash, Nechemiah noticed that many Jews were extremely lax in Shabbos observance. In his own words, “In those days, I saw people in Judea operating their winepresses on Shabbos and loading their harvest on donkeys; and also their wine, grapes, and figs and all other burdens; and transporting them to Yerushalayim on Shabbos… the Tyrians would bring fish and other merchandise and sell them to the Jews” (Nechemiah 13:15-16). Nechemiah then describes how he succeeded in closing the city gates the entire Shabbos in order to keep the markets closed.

To strengthen Shabbos observance, Nechemiah established very strict rules concerning which utensils one may move on Shabbos. These rules form the foundation of the halachos of muktzah (Gemara Shabbos 123b). Initially, he prohibited using and moving on Shabbos virtually all utensils, excluding only basic eating appliances such as table knives. We will call this Nechemiah’s “First Takanah.” By prohibiting the moving of items even indoors, he reinforced the strictness of not carrying outdoors on Shabbos (Gemara Shabbos 124b; Raavad, Hilchos Shabbos 24:13). Furthermore, observing the laws of muktzah protects people from mistakenly doing forbidden melacha with these tools. In addition, the laws of muktzah guarantee that Shabbos is qualitatively different from the rest of the week even for someone whose daily life does not involve any manual labor (Rambam, Hilchos Shabbos 24:12-13).

As the Jews became more careful in their Shabbos observance, Nechemiah gradually relaxed the rules of muktzah, permitting limited use of some utensils on Shabbos. Eventually, Nechemiah established rules whereby most utensils may be moved and used on Shabbos when necessary, whereas certain utensils that one usually would not use on Shabbos remained prohibited (except for unusual circumstances such as danger). When discussing the halachos of muktzah as they apply today, I will refer to Nechemiah’s “Final Takanah.”

Nechemiah’s Final Takanah established four distinct categories of utensils:

  1. Not Muktzah. Items that one may move without any reason whatsoever. This category includes food, sifrei kodesh and, according to many poskim, tableware (Mishnah Berurah 308:23) and clothing (see Shitah La’Ran 123b s.v. Barishonah).
  2. Kli she’me’lachto l’heter, which means a utensil whose primary use is permitted on Shabbos, such as a chair or pillow. One may move this utensil if one needs to use it, if it is in the way, or if it may become damaged. However, one may not move it without any reason (Gemara Shabbos 123b-124a; Shulchan Aruch 308:4).
  3. Kli she’me’lachto l’issur, which means a utensil whose primary use is forbidden on Shabbos, such as a hammer, a saw, or a needle. Items in this category may be moved if they are in the way or if one has a need to use it for a purpose that is permitted on Shabbos (Gemara Shabbos 124a). Under normal circumstances, one may not move it for any other purpose.
  4. Completely Muktzah. These are utensils that one may not move under normal circumstances.

I will now explain the four categories.

  1. NOT MUKTZAH

One may move food and sifrei kodesh without any reason, and, according to many poskim, also tableware and clothing. Why may I move certain items on Shabbos without any purpose, whereas I may move other items only if I have a purpose?

The answer to this halachic question is historical. When Nechemiah declared his original gezeirah prohibiting muktzah, he applied the gezeirah only to utensils, not to food, and also excluded table knives and similar appliances. Thus, Nechemiah never declared food and table knives muktzah, even during the First Takanah. However, a kli she’me’lachto l’heter was included in the First Takanah, and at that time was completely muktzah. Later, Nechemiah relaxed the takanah to permit moving these utensils under the circumstances mentioned above; however, when these circumstances do not apply, the original prohibition declaring them muktzah remains in effect.

As mentioned above, many poskim rule that forks, spoons, dishes, and drinking glasses are also excluded from any halachos of muktzah (Mishnah Berurah 308:23, quoting Shiltei HaGibborim), although there are opinions who consider them keilim she’me’lachtam l’heter (Ben Ish Chai, 2:Mikeitz). The lenient opinion contends that Nechemiah permitted moving tableware just as he permitted moving table knives. The strict opinion contends that Nechemiah excluded only table knives, but no other tableware. They hold that forks, spoons, dishes, and drinking glasses are included in the gezeirah of muktzah as members of category # 2, kli she’me’lachto l’heter. (This means that they may be moved when needed but not otherwise.) I will soon explain the practical difference between these opinions.

  1. KLI SHE’ME’LACHTO L’HETER

A utensil that is used primarily for a task that is permitted on Shabbos, such as a chair or pillow, is categorized as a kli she’me’lachto l’heter. I may move such a utensil for one of three reasons:

  1. I want to use it on Shabbos. The Gemara (Shabbos 123b) calls this l’tzorech gufo, literally, for its own use.
  2. It is in my way. The Gemara calls this l’tzorech m’komo, literally, to use its place.
  3. I am concerned that it might become damaged. The Gemara refers to this as moving the utensil from the sun to the shade.

However, I may not move a kli she’me’lachto l’heter without any purpose, nor may I use it when I do not really need a utensil. Thus, I may not use a kli she’me’lachto l’heter to help me with a task that I can do it without any tool (Gemara Shabbos 124a; Shaar HaTziyun 308:13).

I mentioned above that the poskim dispute whether we categorize tableware as not muktzah at all, or as kli she’me’lachto l’heter. Ben Ish Chai and others, who contend that it should be considered kli she’me’lachto l’heter, rule that if one placed extra pieces of silverware on the table, one may not move them back into the kitchen simply because they serve no purpose on the table. He points out that this fulfills none of the three conditions mentioned above necessary to move a kli she’me’lachto l’heter. (Ben Ish Chai agrees that one may remove the silverware from the table if they are in the way or if one is concerned that they might become damaged.) However, the other opinion contends that silverware is not muktzah at all and may be returned it to its correct storage place even without any other need.

  1. KLI SHE’ME’LACHTO L’ISSUR

A utensil whose primary use is forbidden on Shabbos, such as a hammer, saw, or needle, may be moved if I need to use it for something permitted on Shabbos or if it is in the way of something I need to do. Thus, I may use a hammer to crack open a coconut on Shabbos or a needle to remove a splinter (Mishnah Shabbos 122b). (When removing the splinter, one must be careful not to intentionally cause bleeding [Magen Avraham 328:32; see also Biur Halacha 308:11]. Also, one may not sterilize the needle on Shabbos [Rambam, Hilchos Shabbos 12:1]. ) Similarly, on Shabbos I may remove a hammer or saw that was left on a table, counter, or chair, if I need to put something else there.

However, I may not move a kli she’me’lachto l’issur to save it from becoming broken. When Nechemiah relaxed the takanah that treated kli she’me’lachto l’issur as completely muktzah, he only allowed it to be moved if I need it or its place on Shabbos, but for no other reason.

If I know I will need a kli she’me’lachto l’issur later today, and I am afraid it will get broken or ruined and be unusable by then, I may save it from breaking (Tehillah LeDavid 308:5). This is because moving it now makes it available to me later and thus it is considered l’tzorech gufo.

Once someone picks up a kli she’me’lachto l’issur for a permitted reason, he may put it wherever he chooses (Gemara Shabbos 43a). Some poskim extend this rule further, permitting someone who picked up a kli she’me’lachto l’issur by mistake to place it down wherever he pleases since the item is already in his hand (Magen Avraham 308:7). However, many poskim dispute this, arguing that this lenience applies only when one has permission to pick up the utensil but not when it was picked up in error (Gra, Yoreh Deah 266:12). Thus, someone who picked up a hammer, saw, or needle by mistake may not continue to hold it. Mishnah Berurah (308:13) implies that one may follow the lenient approach when necessary. Therefore, in an extenuating situation, one may hold the kli she’me’lachto l’issur until he finds a convenient place to put it down.

DIFFERENCES BETWEEN KLI SHE’ME’LACHTO L’HETER AND SHE’ME’LACHTO L’ISSUR

After Nechemiah’s later takanos, both kli she’me’lachto l’heter and kli she’me’lachto l’issur have an interesting status: sometimes they are muktzah and sometimes not, depending on why one wants to move them. Even within this in-between category of sometimes-muktzah items, there is a “pecking order” whereby kli she’me’lachto l’heter is less muktzah than kli she’me’lachto l’issur. Several differences in halacha result:

  1. As mentioned above, one may move a kli she’me’lachto l’heter if one is concerned it may become damaged, whereas a kli she’me’lachto l’issur may not be moved.
  2. A kli she’me’lachto l’issur may not be moved when a kli she’me’lachto l’heter is available to do the job (Mishnah Berurah 308:12; Elyah Rabbah 308:32).
  3. One may carry a kli she’me’lachto l’heter early in the day even though he does not anticipate needing it until much later that day (Taz 308:2). This is considered as using the kli. On the other hand, a kli she’me’lachto l’issur may only be picked up when one needs to use it.
  4. Many poskim contend that a kli she’me’lachto l’issur that was intentionally left for Shabbos lying on top of a permitted item conveys the law of a kli she’me’lachto l’issur onto the lower item (Tehillah LeDavid 266:7 & 308:1; Aruch HaShulchan 310:9). The lower item becomes a “bosis l’davar ha’asur,” literally, a base for a prohibited item. Thus according to these poskim, if a hammer was intentionally left on a chair in the backyard for Shabbos, one may not move the chair afterwards if one is concerned that the chair may become damaged, just as one may not move the hammer itself. However, according to the poskim who contend that there is no concept of bosis l’davar ha’asur for a kli she’me’lachto l’issur, one may bring the chair into the house to save it from damage (Pri Megadim, introduction to 308). (We will leave a full discussion of the subject of bosis l’davar ha’asur for a different time.)

However, to the best of my knowledge, no posek contends that a kli she’me’lachto l’heter creates a “bosis l’davar ha’asur.” Thus, if someone intentionally left an ice cream scoop on top of a basket of fruit, the fruit does not have the laws of a kli she’me’lachto l’heter but retains the status of the fruit, which is not muktzah at all.

IS SOMETHING MELACHTO L’HETER OR MELACHTO L’ISSUR?

What is the halacha of an appliance that has two equal usages, one l’heter and the other l’issur? This appliance has the halachic status of a kli she’me’lachto l’heter (Magen Avraham 308:9). Thus, if I use an index card as a place mark although I also might write on it, it is melachto l’heter.

What about a utensil whose primary use is for a prohibited purpose, but its typical use includes a permitted purpose, such as a pot? Its primary use, cooking, renders it a kli she’me’lachto l’issur. However, it also functions as a storage vessel after the food finishes cooking, which is a permitted purpose on Shabbos. What is its status?

A FIFTH CATEGORY OF MUKZTAH UTENSIL

This type of utensil has an interesting status: It changes in the course of Shabbos from being a kli she’me’lachto l’heter to a kli she’me’lachto l’issur and back again. When storing food, it has the status of a kli she’me’lachto l’heter. However, when the food is emptied out, it reverts to its primary status and again becomes a kli she’me’lachto l’issur (Rashba, Shabbos 123a s.v. ha disnan, quoted by Pri Megadim, Eishel Avraham 308:9 and Mishnah Berurah 308:26).

Therefore, while it has food inside it, I may move it if I am concerned it might become damaged. However, once the food has been removed, I may not. I may still move it if I want to use the pot or it is in the way. (Furthermore, I may move a used pot out of the way because it looks disgusting [Gemara Shabbos 124a]. However, this is another topic that we will leave for a different article.)

  1. COMPLETELY MUKTZAH

Most items categorized as muktzah are not utensils and are muktzah because they usually have no Shabbos use. Thus, pieces of scrap wood, dirt, money, ashes and a useless broken item are all muktzah because we do not expect to use them on Shabbos. Even if a use presents itself on Shabbos, or the item is in one’s way, one may not use or move them.

(There are a few instances when one may move such items, such as when someone might get hurt, or when they are very disgusting.)

MUKTZAH MACHMAS CHISARON KIS

Several utensils are completely muktzah. One category includes specialized tools whose primary use is prohibited on Shabbos and are not used for other purposes lest they become damaged. Such utensils are muktzah machmas chisaron kis, muktzah because of financial loss. Since the owner would never use them for any other use, and their primary use is prohibited on Shabbos, he never expects to use them on Shabbos, which renders them muktzah (Tosafos Shabbos 123a s.v. basichi). Thus, a musical instrument, a mohel’s or shocheit’s knife, craftsman’s tools or any other specialty equipment whose owner would not allow it to be used except for its intended purpose is muktzah. Since a shocheit will not use his knife to carve a turkey or slice salami his knife is muktzah. However, an old shechitah knife that its owner no longer uses for shechitah is not muktzah.

MERCHANDISE

Merchandise that one intends to sell is usually muktzah on Shabbos, since one does not intend to use it oneself (Rama 308:1).

A kli that is muktzah machmas chisaron kis that becomes damaged on Shabbos so that it is no longer valuable, remains muktzah machmas chisaron kis for that Shabbos, although for future Shabbosos it will be treated like a kli she’me’lachto l’issur. This is because once a utensil is muktzah at the beginning of Shabbos, it remains muktzah the whole Shabbos (Magen Avraham 308:19; Tosafos Beitzah 2b).

Example: I sell fancy merchandise out of my house that I would never use myself.

On Shabbos, a child opens the package and uses one of the items, so that I could never sell it. Although I will now use the item myself, I must treat it as muktzah until Shabbos is over, since it was muktzah when Shabbos began.

BROKEN UTENSIL

A utensil that broke or tore on Shabbos does not become muktzah unless it has no use whatsoever. This is true even if you immediately threw it into the garbage. However, if it broke before Shabbos and you threw it into the garbage before Shabbos, it becomes muktzah (Gemara Shabbos 124b). Since it was in the garbage when Shabbos arrived, that renders it muktzah.

Thus, a shirt that tore on Shabbos does not become muktzah since you might use it as a rag, even if you threw the torn shirt into the garbage on Shabbos. However, if it tore before Shabbos and you disposed of it before Shabbos, it is muktzah.

TEFILLIN

Where do tefillin fit into the muktzah spectrum? Most people assume that Tefillin are muktzah since we do not wear them on Shabbos. However, the halacha is otherwise. Some poskim rule that Tefillin are kli she’me’lachto l’heter since one may don tefillin on Shabbos as long as one does not intend to fulfill the mitzvah (see Rama 308:4), whereas most poskim treat them as kli she’me’lachto l’issur (Taz, Magen Avraham and others ad loc.). Therefore, if a pair of tefillin are lying in an inconvenient place, one may remove them and then put them wherever is convenient.

Of course, this article cannot serve even as a primer in hilchos muktzah, but merely intends to mention some interesting aspects of the halachos of muktzah.

The entire takanah of muktzah is highly unusual. While observing Shabbos, we constantly need to focus on what we move and how we use it. Thus, hilchos muktzah become more absorbing than the halachos of Shabbos that the Torah itself mandated. Nechemiah instituted these halachos precisely for these reasons. By implementing the laws of muktzah, he accomplished that Shabbos observance is constantly on our minds.

 

From Cairo to Frankfurt, Part II

Purim Cairo and Purim Frankfurt

face maskIs there a halachic basis for the various local observances, such as Purim Frankfurt, Purim Cairo and Purim Ancona?

Answer: Local Purims

In the course of Jewish history, there have unfortunately been numerous occasions when communities suffered from major crises that threatened their survival. We began talking about this topic last week, and this article is a continuation of that discussion.

Other methods of celebration

Since the Pri Chodosh rejects the creation of new holidays as long as the Beis Hamikdash is destroyed, how should one thank Hashem for saving him? In the time of the Beis Hamikdash, an individual thanked Hashem by offering a korban todah (see Brachos 54b), but what does one do now that it is destroyed? Many authorities approve making a festive meal, called a seudas hodaah, instead, to commemorate the occasion, but the Pri Chodosh himself considers these meals seudos reshus and not seudos mitzvah, implying that he does not consider this the most appropriate way to acknowledge thanks to Hashem.

Another option is to bensch gomel as the fitting acknowledgment of thanks. However, bensching gomel is not always the appropriate approach, as the next discussion will indicate.

Should someone bensch gomel when saved from a situation where he was willing to give up his life al Kiddush Hashem?

The Chida, in his Machazik Brocha commentary to Shulchan Aruch (219:1-3), presents a lengthy correpondence that transpired between his father and another talmid chacham, Rav Eliezer Nachum. Rav Yitzchak Zerachyah Azulai, the Chida’s father, contended that only someone who was placed in a situation involuntarily, including one who traveled by sea or through the desert because circumstances compelled him to endanger himself, recites birkas hagomeil, but not someone who chose to give up his life to fulfill the mitzvah of Kiddush Hashem. Even when someone in the latter situation is saved by an obvious miracle, he should not recite birkas hagomeil since, had he lost his life, he would immediately have been elevated above all that this world could possibly offer. Similarly, he rules that the kohen gadol does not recite birkas hagomeil upon leaving the kodesh hakodoshim on Yom Kippur, since his entering was to fulfill the mitzvah of Hashem. Furthermore, he adds, a kohen gadol worthy of his position was never in any danger to begin with – only an unworthy kohen gadol need be concerned of the dangers of entering the kodesh hakodoshim on Yom Kippur.

Rav Elazar Nachum disagreed strongly with Rav Azulai’s position. Rav Nachum notes several midrashic and Talmudic passages that mention the tremendous songs of praise that were sung by great tzadikim upon surviving these travails. Certainly, upon surviving these dangers one is required to recite birkas hagomeil to thank Hashem for his salvation.

Hallel?

The Pri Chodosh could accept the ruling of the Meiri that one may recite Hallel without a brocha, since this does not declare that the day is holy. However, any observances that imply giving sanctity to the day, such as prohibiting fasting and eulogies or banning people from working, are not binding, according to the Pri Chodosh.

Later authorities

Notwithstanding that the Pri Chodosh disputed the conclusion of the Maharam Alashkar, two highly respected later authorities, the Chasam Sofer and the Chayei Odom, both reject the Pri Chodosh’s analysis and rule according to the Maharam Alashkar. The Chasam Sofer (Shu’t Orach Chayim #191) demonstrates that a holiday created to thank Hashem for a miracle He performed has halachic significance and must be observed — unlike the special days recorded in Megillas Taanis. Nevertheless, the Chasam Sofer adds a qualification — a community can create a special festival only when they were saved from a life-threatening situation.

The Chasam Sofer concludes, like the Maharam Alashkar, that the takkanah to observe a holiday may be binding even on descendants of town residents who no longer live where the salvation occurred. He notes that his rebbe, Rav Nosson Adler, a Frankfurt native, observed Purim Frankfurt even when he did not live in Frankfurt. However, when living out of Frankfurt, Rav Nosson Adler did not fast on the day before Purim Frankfurt. The Chasam Sofer assumes that this was because Rav Adler held that observing the fast while in a different community may conflict with the customs of where he was currently living, and halachah prohibits acting in a manner different from local practice. The Chasam Sofer, who was always proud that he had been born in Frankfurt, lived the rabbinic years of his life outside of Germany. He records that, although he did not fast on the day before Purim Frankfurt, he conducted a siyum mesechta on that day in order to supersede any requirement to fast, similar to our practice on Erev Pesach.

Chayei Odom

Another later authority who rejected the Pri Chodosh’s criticism of the Maharam Alashkar’s ruling was the Chayei Odom (155:41). He concluded that an individual, and certainly a community, can establish a day to be their own festival. Based on the ruling of the Maharshal, which I will quote shortly, the Chayei Odom ruled that a meal observed because of a community’s thanksgiving has the halachic status of a seudas mitzvah. Futhermore, the Chayei Odom contended that had the Pri Chodosh seen what the Maharshal wrote (Yam shel Shelomoh, Bava Kama 7:37), which the Chayei Odom notes was not yet printed in the days of the Pri Chodosh, the Pri Chodosh himself would also have accepted that these thanksgiving seudos qualify as seudos mitzvah.

What did the Maharshal write that the Chayei Odom felt was so authoritative?

Seudas Hodaah

The Maharshal cites a different Gemara source and rationale for the practice of celebrating a festive meal in honor of salvation. The Gemara (Bava Kama 80a-b) mentions that Rav, Shmuel and Rav Assi all attended a seudas mitzvah, which, according to one version of the Gemara, was probably a pidyon haben. The Maharshal notes that the Gemara (Chullin 95b) states that Rav never ate from a festive meal unless it was a seudas mitzvah. Furthemore, we do not find that the Gemara characterizes pidyon haben as a seudas mitzvah.  Therefore, asks the Maharshal, why Rav would have participated in this seudah? The Maharshal answers that making a festive meal in order to bring attention to the observance of a mitzvah or to thank Hashem that a miracle happened is a seudas mitzvah. He then quotes an earlier authority who held that a pidyon haben qualifies as a seudas mitzvah (Terumas Hadeshen #269).

The Chayei Odom concludes halachically like the Maharshal that celebrating salvation by Hashem with a festive meal qualifies as a seudas mitzvah.

Private Purim

The Chayei Odom closes his remarks on this topic by noting that he actually established a Yom Tov for himself and his descendants because of a salvation that his family experienced. On the evening of the 16th of Kislev 5564 (1803), a gunpowder explosion blew up several buildings in the area where the Chayei Odom lived, killing thirty-one people. Every member of the Chayei Odom’s family suffered injuries, his wife most severely. The windows and door of the room imploded and the walls and sections of the roof crashed. The Chayei Odom thanked Hashem that, although he suffered major financial loss from the catastrophe, every member of his family survived.

To commemorate the event, the Chayei Odom instituted that the physically-able members of his family and his descendants should fast on the 16th of Kislev. The night after the fast they should gather immediately after maariv to kindle lights as one does on Yom Tov, recite the entire Shir Hayichud, slowly and with the accustomed melody, as is the custom after maariv on Yom Kippur night. The Chayei Odom’s observance continues: After reciting Shir Hayichud, they should recite Anim Zemiros with a festive tune, and then read slowly through sixteen selected chapters of Tehillim. After this ceremony, they should give as much tzedakah as they are able and those descendants who can financially afford it should sponsor a seudah for scholars who study Torah.

Festival of the Tosafos Yom Tov

Similar to the way the Chayei Odom observed his own family Purim was the observance of a much earlier gadol beyisrael, the Tosafos Yom Tov. In 5387 (1627), the Tosafos Yom Tov became the rav of the entire region of Bohemia (now an area in the Czech Republic). The Thirty Years War was escalating, and the government imposed a heavy tax on the Jewish community to help pay war costs. As rav, the Tosafos Yom Tov headed the committee charged with the responsibility of levying the share each individual was required to pay of the collective tax. Naturally, there were those who felt that they had been assessed too high, and some unscrupulous individuals were vicious enough to turn to the government with a list of defamatory accusations against the Tosafos Yom Tov. On the 5th of Tammuz 5389 (1629), he was summoned to the capital, Vienna, and there he was sentenced to a large fine and imprisonment as punishment for the slanderous canards. When he was freed from prison, he declared the 5th of Tammuz, the day on which his troubles began, as a fast for his descendants, but he did not have it followed by any celebration since he was still in trouble and had no reason to rejoice. For fifteen years, he experienced repeated sufferings. However, when on Rosh Chodesh Adar, 5404 (1644), he became the rav of Krakow, Poland, which was out of the range of the Austro-Hungarian Empire, he felt that salvation was finally achieved and he proclaimed a family festival as a result. Unfortunately, there is a bitter ending to this celebration, because four years later the Chmielnitzki revolt and massacres began. I have written about this topic elsewhere (see RabbiKaganoff.com, The Twentieth of Sivan.)

Other commemorations

Other gedolei Yisrael chose to commemorate their salvation in other ways. The Pnei Yehoshua decided to write his sefer, which is one of the most basic works on Shas, because he survived a fire and explosion.

Halachic conclusion

The later halachic authorities did not accept the Pri Chodosh’s concern and ruled that one may observe special local festivals to thank Hashem for salvation. We have seen three different sources for observing local festivals:

  1. To recite Hallel to commemorate Hashem’s salvation.
  2. The authority of a community to establish a festival and regulations.
  3. A festive meal to thank Hashem qualifies as a seudas mitzvah.

Unusual local purims

Having discussed the halachic background for these festivals, let us note some curious aspects of some of these local celebrations.

Four Purims

To the best of my knowledge, the record for local Purims was held by the Jewish community of Ancona, Italy, which observed four different dates as special festivals, each in thanks to Hashem for being saved from a different catastrophe: revolutionary riots, an earthquake, and two fires. As was done with Purim Frankfurt and Taanis Esther, they observed a fast on the day before.

Double Purim

One of the unusual observances was Purim Rhodes, which was celebrated on the day of Purim itself! In 5600 (1840), a gentile child disappeared and the Jews were accused of the frightening blood libel — slaughtering the child to use his blood for matzohs. The local governor was behind the incitements against the Jews. As the Jews prepared for what they expected to be their last Purim, the child was found alive on a neighboring island. The sultan deposed the governor, and gave the Jews a firman declaring that the accusation of ritual murder was false. As a result, the Jews of Rhodes read special prayers and hymns on Purim to commemorate their communal miracle.

Kol Yisrael areivim

One very early observance serves as a reminder of how each Jew must assume responsibility for all his brethren. On the 21st of Adar, 1236, in Narbonne, France, the rash action of one Jew who struck a gentile in an argument, killing him, endangered the entire community. A mob rioted, threatening to kill everyone in the Jewish quarter. Fortunately, the local officer and his soldiers arrived just in time to avert calamity. This should serve as a powerful reminder of how one thoughtless Jew can endanger all.

Being locked in the ghetto

One of the oddest reasons for a local festival occurred on the 18th of Tammuz 5367 (1607) in Verona, Italy, the day after a fast day. The Jews there had been confined to sleeping overnight in a locked ghetto for the previous eight years. They requested that they be the holders of the keys to the gates of the ghetto, rather than being locked in. This plea was finally granted, and from then one the date the plea was granted was celebrated as a Purim!  Its observance continued until Napoleon abolished the ghetto. (We should note that according to the above-quoted Chasam Sofer, this would not have been sufficient reason to have created a local festival.)

Conclusion

Rav Hirsch (Commentary to Tehillim 100:1) notes that the root of the word for thanks is the same as that for viduy, confession and admitting wrongdoing. All kinds of salvation should elicit in us deep feelings of gratitude for what Hashem has done for us in the past and does in the present. This is why it can be both an acknowledgement of guilt and thanks.

We often cry out to Hashem in crisis, sigh in relief when the crisis passes, but fail to express our thanks adequately for the salvation. Our thanks to Hashem should match the intensity of our pleas. In our daily lives we hopefully do not encounter the types of dangers that we have described above, yet we should still fill our hearts with thanks, focus these thoughts during our recital of mizmor lesodah, az yashir, modim or at some other appropriate point in our prayers.

From Cairo to Frankfurt: Purim Cairo and Purim Frankfurt

face maskIs there a halachic basis for the various local observances, such as Purim Frankfurt, Purim Cairo and Purim Ancona?

Local Purims

In the course of Jewish history, there have unfortunately been numerous occasions when communities suffered from major crises that threatened their lives. Upon surviving these travails, many communities chose to commemorate the event by creating a Yom Tov with special observances to thank Hashem for His salvation. Many of these observances were called “Purim,” and in the course of the last several hundred years there were dozens of recorded local Purims, some that were celebrated by the Jewish community of a town or city, and others that were observed by families. Some of these commemorations included that the festival was preceded by a fast day, similar to Taanis Esther preceding Purim.

As the events of the last seventy years have emptied many of these communities of their Jews, most of these celebrations and the miracles they commemorate have become forgotten. This article will be concerned primarily with the halachic sources and controversies concerning these celebrations. But first, let me share some of the background events of a few of these local observances.

Purim Cairo

One of the earliest recorded local holidays is a festival that was celebrated in Cairo on the 28th of Adar, which bears a strong similarity to the original Purim. In 5284 (1524), the Governor of Egypt, Ahmed Pasha, became a very powerful ruler, although he was officially responsible to the Ottoman Empire and Sultan Suleiman the Magnificent. Pasha craved the wealth of many of the Egyptian Jews and, in order to seize their possessions, he arrested twelve prominent leaders of the Jewish community, including the community’s rav, the Radbaz. Pasha demanded an exorbitant ransom, far more than the community could ever raise, to be paid by the 28th of Adar, or he would execute the captives and exile the rest of the community.

On the day set for the ransom deadline, Pasha was assassinated by some of his servants who knew that he was plotting to overthrow the sultan. The 28th of Adar was joyously proclaimed a local festival and was observed for as long as a sizable Jewish community existed in Cairo.

Purim Frankfurt
The rogue of the Purim Frankfurt story (5374/1614), Vincent Fettmilch, actually called himself the “new Haman of the Jews.” He was a fiery agitator whose hordes attacked the Jewish quarter of Frankfurt. After two years of anti-Semitic disturbance, he angered the Holy Roman Emperor, who had Fettmilch hanged. The Jewish community commemorated these events by creating a fast day, similar to Taanis Esther, on the 19th of Adar, and a festival on the 20th, which was called Purim Frankfurt. A special megillah was written, known as Megillas Vinz (for Vincent), to commemorate the occasion.

Tunis

Purim Kidebuni was a festival observed in parts of North Africa. In 5465 (1705), the governor of Tunis, warlord of one faction of the barbary pirates, laid siege to Tripoli, threatening to decimate the population should he conquer the city. Fortunately, disease broke out suddenly among his followers, and the siege failed. A festival was declared for the 24th of Teiveis.

Another North African Purim

On the 4th of Marcheshvan, 5302 (1541), Charles V of Spain attempted to seize Algiers, where many Jews had taken refuge fifty years earlier when fleeing during the Spanish expulsion. The Spaniards landed, but their fleet and army were destroyed by a storm because of the prayers of Rav Shelomoh Duran, a descendant of the Tashbeitz. Thus the Jews were spared facing expulsion a second time and the inquisition that the Spaniards would have brought with them. For obvious reasons, they called the holiday they established Purim Edom.

Shiraz

On the 2nd day of Marcheshvan, the Jews of Shiraz (Iran) celebrate a festival called “Moed Katan.” According to an old manuscript written in the Jewish-Persian language (similar to what Yiddish is to German, and Ladino to Spanish), a Jew who was supposed to have been both a shocheit and a kosher retail butcher was caught selling non-kosher meat. The criminal converted to Islam, changed his name to Abu al-chasan, and then became a moseir, accusing the Jews of many crimes. The Shiite rulers gave the Jews of Shiraz the choice between death and conversion to Islam. Suddenly and mysteriously, Abu al-chasan died on the 2nd of Marcheshvan, leaving behind a retraction that all his accusations were false. The evil decree against the Jews was rescinded. The incident was commemorated via a local festival called “Moed Katan.”

These are a few examples of the kinds of local festivals that were established to thank Hashem for His kindness. The first question we have is whether we can find a halachic source for a community establishing its own local festival.

Who introduced Hallel?

One source for the observance of local festivals is based on the following passage of Gemara (Pesachim 117a, as explained by Rashbam; cf. Rashi ad locum).  The Gemara asks: “Who originally declared the Hallel?” The Gemara proceeds to mention several instances in Jewish history when Hallel was recited spontaneously to thank Hashem for His salvation (Rashi ad loc.). Among the specific situations mentioned are:

— In addition to singing Az Yashir upon surviving keriyas yam suf, Moshe and the Bnei Yisrael also sang Hallel (Rashbam).

— Yehoshua and the Bnei Yisrael sang Hallel after their victory over the 31 kings.

— In addition to the song of Devorah, she and Barak recited Hallel after their victory over Sisra.

— Chizkiyah sang Hallel when he survived Sancheiriv.

— Chananyah, Misha’el and Azaryah sang Hallel when Hashem saved them from the fiery furnace.

— Mordechai and Esther recited Hallel when they were in control of the city of Shushan.

Chananyah, Misha’el and Azaryah

The reason for the reciting of Hallel by Chananyah, Misha’el and Azaryah is somewhat different from the other events recorded in the Gemara. In all the other instances, the entire Jewish nation was imperiled and saved, whereas, in their situation, Chananyah, Misha’el and Azaryah were saved as individuals. One may have thought that Hallel should be recited only to thank Hashem for the saving of the entire nation. However, we see from Chananyah, Misha’el and Azaryah that reciting Hallel is an appropriate way of thanking Hashem even for a salvation that affected only individuals.

In his halachic commentary on this Gemara, the Meiri (Pesachim 117a) rules that an individual or community may establish a practice of reciting Hallel every subsequent year as a commemorative way to celebrate their salvation, provided that they do not recite a brocha prior to reciting the Hallel. To quote the Meiri: “Any individual who was redeemed from a potential calamity may institute that he recite Hallel that day every year, albeit without reciting a brocha beforehand. The same is true for every community. In fact, a practice of the prophets was to recite Hallel whenever one was redeemed from trouble.” Thus, a community or an individual may establish the annual recital of Hallel on a specific date to commemorate an event of salvation.

After they move

Are individuals who have relocated from a community required to continue observing the local Purim? I found this question discussed about five hundred years ago by Rav Moshe ben Yitzchak Alashkar, known as the Maharam Alashkar, a gadol of his generation, who received halachic inquiries from the greatest gedolim of his era, including the Mahari Beirav, Rav Eliyahu Mizrahi, and the Maharalnach. It is interesting to note the difficulties and wanderings of the Maharam Alashkar himself. Born about 5226 (1466) in Spain, he was expelled in 1492 with all the other Jews, and in his escape from Spain was captured by pirates who threatened to execute him. Eventually, he escaped from the pirates and found refuge in Tunis, but the Jews of this community were then expelled. The Maharam Alashkar wandered onward to Greece, then later Cairo, and eventually succeeded in settling in Yerushalayim, where he passed on in 5302 (1542). In addition to probably being the posek hador in the Mediterranian basin, he was  also the source of many teshuvos of the geonim that would otherwise have been lost, and he translated responsa of the Rambam from Arabic into Hebrew.

The following question that the Maharam Alashkar discusses is germane to our discussion: A local takkanah (based on other evidence, I believe it was Sepanto, Italy) had established the 11th of Teiveis as a local festival, for the Jews of that town and their descendants wherever they would reside, in commemoration of some deliverance that had transpired on that date. The question was: The community is now destroyed. Must they continue to observe this takkanah?

The Maharam Alashkar first quotes the Talmudic sources that a community has the ability to establish regulations that are binding on its members. He writes that although regulations and customs of a community are, in general, not obligatory upon someone once he relocates, when the community accepted upon its members and their descendants to follow a certain practice regardless of whether they reside in the original location, they must continue observing the practice even after they relocate (Shu”t Maharam Alashkar #49). His conclusion is quoted by many prominent halachic authorities as definitive (Magen Avraham, 686:5, Elyah Rabbah, 686:5, Mishnah Berurah, 686:8; also see the Chayei Odom and the Chasam Sofer that I will quote later in this article).

Celebrating on the Tenth of Av

Our next discussion is the extent to which we go to celebrate a personal Purim.

Sena’ah was the name of one of the large Jewish family clans that returned from Bavel together with Ezra (Ezra 2:35; Nechemiah 7:38). According to the Mishnah (Taanis 26a), they were descended from the tribe of Binyamin (see Tosafos, Eruvin 41a s.v. Mivnei) and they brought wood to the Beis Hamikdash on the tenth of Av, which was then observed as a day of celebration. The Gemara (Eruvin 41a; Taanis 12a) records that the Tanna Rabbi Elazar ben Tzadok, continued to observe this date even after the churban (Tosafos, Taanis 12a s,v, Hasam), although the cause for the celebration no longer existed. This is even more surprising since Rabbi Elazar ben Tzadok himself was a kohen (see Bechoros 36a), and therefore not descended on his father’s side from Sena’ah and the tribe of Binyamin. As Tosafos (Eruvin 41a s.v. Mivnei) notes, his observance of this date as a family festival was either because his membership in this family clan was from his mother’s side or because his wife was a descendant of the tribe of Binyamin and a member of this family.

Tisha B’Av on the tenth

As we know, when Tisha B’Av falls on Shabbos, the fast day is observed on Sunday, which is the tenth of Av. Since we now know that the Sena’ah family observed the tenth of Av as a festival even after the churban, what did they do when Tisha B’Av fell on Shabbos, causing the national day of mourning to coincide with their personal festival? The Gemara quotes Rabbi Elazar ben Tzadok as saying that they began the fast together with the rest of klal Yisrael, but did not complete its observance to the end of the day since it was a family festival. This means that they ate on the day that the rest of klal Yisrael was still observing all the laws of Tisha B’Av! We see the extent to which the observance of the family festival was kept. Based on this Gemara, the Maharam Alashkar ruled that a local festival must continue to be observed.

[There is a curious halachah that results from this Gemara. Several rishonim record the following practice from the baal Tosafos, Rabbeinu Yaakov ben Rabbeinu Yitzchak Halevi, who is also called Yaavetz. (He should not be confused with much later gedolim, such as Rav Yaakov Emden, who are also called Yaavetz.) Yaavetz once celebrated a bris on the tenth of Av which was a Sunday and therefore a postponed Tisha B’Av. Several rishonim record that after davening mincha, Yaavetz bathed and broke the fast because it was his own personal Yom Tov (Mordechai, Taanis #630; Hagahos Maimoniyos, Taanis 5:8; Tur Orach Chayim, Chapter 559). This practice is recorded as normative halachah – that the baalei simcha, meaning the mohel, the sandek and the parents of a bris that falls on a postponed Tisha B’Av do not complete the fast because it is their own personal Yom Tov.]

Controversial custom

However, the Maharam Alashkar’s position on this question was not universally accepted. The Pri Chodosh (Orach Chayim 496:14) expressly disputes what the Maharam Alashkar writes, concluding that even a local resident does not need to observe the custom of local festivals and celebrations. The Pri Chodosh contends that the practice is not binding even while the original inhabitants continue to reside in the same city in which the miracle happened, and it is certainly not incumbent upon their descendants or anyone who relocated from the city.

Explaining the Pri Chodosh’s objection to the Maharam Alashkar’s ruling requires an introduction regarding an ancient manuscript called Megillas Taanis, which the Gemara (Shabbos 13b) teaches us was written by the Tanna Chananyah ben Chizkiyah, who lived at the end of the second Beis Hamikdash period (Rambam, Introduction to Peirush Hamishnah, towards the end). Megillas Taanis is a list of dates on which miraculous events occurred. To commemorate these celebrations, Chazal prohibited fasting and conducting eulogies on these dates. After the destruction of the Beis Hamikdash, a dispute (Rosh Hashanah 18b-19b) developed as to whether these dates remained minor festivals prohibiting hespedim and fasts, or whether, in light of the churban, these festive days are no longer significant, a position that the Gemara calls: batlah Megillas Taanis, Megillas Taanis is no longer in effect.” The Gemara (Rosh Hashanah 19b) concludes that, with the exception of Chanukah and Purim, batlah Megillas Taanis. It is also important to note the Gemara’s comment that if batlah Megillas Taanis, certainly no new days can be added as holidays (Rosh Hashanah (18b, 19a).

The Pri Chodosh contends that the creation of any of these local festivals runs counter to the Gemara’s conclusion that batlah Megillas Taanis. He, therefore, concludes that the community declaring specific practices on these days has no halachic legitimacy and that one is not required to observe them.

We will continue this topic next week…

 

Complex Clearings or Removing Muktzah from the Table

loaded tableIt is Mrs. Friedman’s* unmistakable and excitable voice on the phone. “Rabbi,” she begins in her trademark high pitch, “I am married almost twenty years, and have been clearing my Shabbos table the same way all these years: I brush the small items off the tablecloth and pick up the large ones. Last week, a guest, Aviva, politely suggested that I ask my rabbi whether I am doing this correctly. She was taught that she may not remove pistachio shells and used napkins by hand; instead, to place a disposable clear cover on the tablecloth before setting the table, and after clearing the dirty dishes at the end of the meal, to simply roll up the plastic. However, I place my candlesticks in the middle of the Shabbos table; furthermore, I do not consider it Shabbos-dik to have a cover on my exquisite linen tablecloth! Am I indeed doing something wrong for the last twenty years! I was never told this during all my years in Beis Yaakov!”

What would you tell Mrs. Friedman? In order to answer her accurately, we need to understand these halachos well.

In parshas Terumah, the Torah discusses building the Mishkan, which are the same activities that are categorized as melacha activity on Shabbos. As a fence around the Torah, Chazal banned moving items that do not have a use on Shabbos, a law we refer to as muktzah (see Rambam and Raavad, Hil. Shabbos 24:13). For this reason, we may not move on Shabbos items that are not considered utensils, such as stones and pieces of wood. The rules of muktzah are highly complex, and yet at the same time affect each of us every Shabbos. Although we deal with removing items from the table several times every Shabbos, most of us do not realize all the detailed laws that this simple, common activity entails.

HOW, WHAT, AND WHEN

Certain specific questions about the laws of muktzah directly influence how one may clear the table.

I. HOW

How does one remove a muktzah item without violating the laws of Shabbos?

II. WHAT

Which items commonly left on a table are muktzah?

III. WHEN

When may I move an item, notwithstanding that it is muktzah?

Answering these three questions will explain what Aviva was taught and provide Mrs. Friedman with some practical, level-headed advice to keep her table Shabbos-dik.

I. HOW

Since it is likely that the remnants of a meal contain muktzah, how does one remove them on Shabbos? The Mishnah (Shabbos 143a) permits tilting the tabletop, thereby tumbling the muktzah to the floor. However, this leads us to question: If one may not move a muktzah item, how may I tilt the tabletop? This is also moving muktzah!

INDIRECT CARRYING – TILTUL MIN HATZAD

The answer is that (under certain circumstances) Chazal permitted lifting a permitted item that indirectly moves something muktzah.

In addition to tilting the tabletop, the Shulchan Aruch (308:27) suggests two other options to clear the table, both of which permit carrying the entire tabletop to a place where one can then tilt off the muktzah:

  1. If there is bread on the table in addition to something muktzah, the muktzah item is treated as bateil, nullified, to the piece of bread. For this reason, one may now carry the entire table or tabletop to a place where it is convenient to drop off the muktzah. One may even place bread on the table expressly for this purpose (Rosh, as explained by Magen Avraham 308:51).

Based on the above, if nutshells, which are muktzah, ended up on a plate during Shabbos, one may place some bread on the plate and then remove it from the table. Upon arrival in the kitchen, one may tilt the muktzah items into the garbage can. Bear in mind, that when one empties the muktzah items into a garbage can, one can no longer move the garbage can itself. (In all likelihood, the garbage can is already muktzah because of other items it contains. My observation is that people are sometimes not meticulous to treat their household garbage cans as muktzah. One should always leave the garbage can in place. Only under certain unusual circumstances, beyond the scope of this article, may one remove the garbage.)

  1. Even if there is no bread on the tabletop or plate, the Shulchan Aruch permits moving them to remove muktzah if one needs to use the area. Since this is often the situation, one usually does not need to place bread on the table or plate to remove the muktzah.

(All cases in this article assume that both the table and the plates do not qualify as a basis ledavar he’asur, meaning that it was not intended to be a base for the muktzah [see Tosafos, Beitzah 2a s.v. Uveis; Magen Avraham 308:50]. An item that is a basis ledavar he’asur, intended to be a base for a muktzah item, becomes muktzah and cannot be moved on Shabbos, even if somehow the muktzah item was removed. Detailing the laws of basis ledavar he’asur is beyond the scope of this article.)

DISPOSABLES TO THE RESCUE!

Similarly, someone who places a disposable plastic cover atop the tablecloth may remove the plastic cover and dispose of it even though it is covered with muktzah, provided there is some bread on the plastic cover. As we explained, even if there is no bread on the table, one may remove the plastic if one needs to use the table on Shabbos and cannot do so with the muktzah items still there.

AVIVA’S PSAK

Based on the above halachic discussion, Aviva was taught that the easiest way to clear the table without concern about moving muktzah is to remove a plastic table cover with everything on it. In this method, any potential muktzah is being carried indirectly.

For those who do not like placing plastic covers over their tablecloths, one could follow the same rule by removing the plates with the muktzah items on them, and then removing the tablecloth. Alternatively, one could simply lift the entire tablecloth to a different area and shake it out — then return it to the table.

However, what may one do to clear the table if one leaves the candlesticks on the table, thus making it impossible to remove the tablecloth, and one does not cover the tablecloth with a plastic?

CLEARING MRS. FRIEDMAN’S TABLE

Certainly, Mrs. Friedman will not be satisfied with any of the above methods of clearing her table. Although her son Yanky may like the Mishnah’s method of tilting the tabletop, or the Shulchan Aruch’s suggestion of lifting the entire table, I would elect to be absent should he tilt her table and dump her candlesticks along with the leftovers onto the carpet. Therefore, to avoid receiving her phone call should Yanky clear the table this way, we should explore other options how to do so.

My best advice in this situation is to place the muktzah shells, pits, and napkins directly onto a plate rather than on the tablecloth. Afterwards, one may remove the plate with the muktzah on it. Following the conclusion of the Shulchan Aruch, if one places some bread on the plate, one may remove the plate even without knowing that he has any need to use that particular part of the table. If one knows that he will need that part of the table later on Shabbos, then one may remove the plate even without any bread on it.

However, what does one do if someone errantly placed their muktzah item directly on Mrs. Friedman’s gorgeous linen cloth, and there is no practical way to remove the tablecloth from the table?

In this situation, may one remove the muktzah items by picking them up or brushing them off the tablecloth? This is what Mrs. Friedman was doing that attracted Aviva’s attention.

Let us first analyze if indeed Mrs. Friedman’s pristine post-dinner table contains any items that are muktzah. This takes us back to our second original question:

II. WHAT

Which items commonly left on a table are muktzah?

BONES AND SHELLS

When humans consume food, we often leave behind bones, shells and pits that we consider inedible, although other creatures consider them a delicious dinner. Are these leftovers considered useless and therefore muktzah, or are they functional, permitting one to move them?

Indeed, the Mishnah discusses whether bones and shells are muktzah, ruling that food remnants that animals do not eat are muktzah, whereas those that they will eat are not (Tosafos, Shabbos 143a s.v. Atzamos).

However, this definition requires refinement since one can find some creature that will consume virtually every organic substance. Does this mean that no biodegradable substances are muktzah? The answer is that only substances eaten by normally available animals, birds, and fish are not muktzah.

What type of animal food is included?

Items eaten by an animal or bird that someone in your neighborhood may own are not muktzah. Therefore, provisions eaten by dogs, cats, gerbils, hamsters, rabbits, parakeets, or even household aquarium fish are not muktzah since it is not unusual to find these as pets. For this reason, bones that dogs may lick are not muktzah (see Shulchan Aruch 308:27). Similarly, crumbs are not muktzah, even though no one will be eating them. Halachically, these are still considered feed since one could leave them for animals.

ZOO ANIMALS

On the other hand, items that are eaten only by animals not commonly owned by people in your area are muktzah (Shulchan Aruch, Orach Chayim 308:29). Specifically, the Gemara concludes that items considered food only by a raven, an ostrich, or an elephant are muktzah since it is uncommon to find these as pets in someone’s house. Items eaten only by these types of creatures are muktzah unless one owns them. Therefore, a zoo may consider the feed common for any animal it keeps as non-muktzah, whereas in a private home, nutshells, bones, pits, and peels not suitable to feed locally available animals are muktzah unless there is some food still attached to them (Mishnah Berurah 308:114).

Potentially, other muktzah items could easily end up on a table, particularly if there are young children around who have a knack of placing crayons and similar items on the table. Furthermore, some authorities consider used napkins and tissues to be muktzah since no one utilizes them anymore.

MAY ONE REMOVE MUKTZAH?

We therefore see that one could easily find muktzah items on the table after a meal. How does one remove these items?

We noted above, that one may remove muktzah items if they are placed on a non-muktzah surface, particularly if some bread is placed on the same surface. Therefore, after licking clean a bone or pit one should place it onto a plate or other item that will later be removed. When shelling pistachios or other nuts, one should be careful to place the shells on a plate, and one should follow the same approach when one finishes using a tissue or napkin.

But what do you do with the shells that missed the plate? One now has muktzah items on Mrs. Friedman’s deluxe linen cloth!

This takes us to our third original question:

III. WHEN

When may I move an item by hand, notwithstanding that it is muktzah? Let us explore a possibility.

GRAF SHEL RE’I

The halacha is that a malodorous or otherwise disgusting but muktzah item that ends up in a residential place may be removed. For example, after changing a baby, one may remove the soiled Pamper notwithstanding that it is now muktzah. This halacha is called removing a graf shel re’i, a chamber pot, which one may remove from a residential place where its presence disgusts people.

Why may one remove a graf shel re’i? Chazal permitted the removal of a graf shel re’i, even when it is muktzah, because of their concern for kavod habriyos, human dignity (Pri Megadim, Eishel Avraham 308:58; Aruch HaShulchan 308:60). This means, that although moving muktzah is an ancient and sacred prohibition, Chazal permitted moving a muktzah item that affects one’s sense of self-dignity if the malodorous item is located in a place where one lives.

However, this halacha only permits the minimum necessary to restore one’s self dignity. For this reason, one usually may not create a kavod habriyus situation in order to facilitate removing muktzah. For example, if the unpleasant muktzah item is located in a part of the house that one does not normally use, one cannot decide to use that area on Shabbos to be able to remove the muktzah. (There is an exception to this rule that is beyond the scope of this article.) Similarly, one may not have a Jew move a graf shel re’i when a gentile could move it (Aruch HaShulchan 308:60).

The question we need to resolve is whether shells and dirty napkins are included under the heading of graf shel re’i. Perhaps one may remove only items far more disgusting, such as vomit and human soil (see Shulchan Aruch 308:34).

Furthermore, even though the lenience of graf shel re’i may not exist for bones, many authorities permit brushing them away with an implement (Taz, 308:18; however, the Chazon Ish 47:14 prohibits.)

Indeed, we find three opinions among the Rishonim regarding this subject. The Raavad prohibited moving muktzah bones and shells even if they are in a residential area, even by sweeping them and certainly by picking them up. He contends that only truly repulsive items are muktzah, and he further maintains that whereas removing a plate or cloth containing muktzah is considered moving muktzah indirectly, pushing muktzah with an implement is considered moving it directly.

On the other hand, the Rashba permitted sweeping away muktzah bones as an extension of the lenience of graf shel re’i (Ran, end of Tenth Chapter of Shabbos). The Ramban allowed sweeping these bones with a broom or other utensil because he considers it removing muktzah in an indirect way, but did not consider them to be a graf shel re’i.

CONCLUSION

The Shulchan Aruch and the Rama (337:2) both imply that one may remove shells and bones even when they are muktzah. The later authorities dispute whether they permitted sweeping muktzah only because this is removing it indirectly (see Shaar HaTziyun 337:7) or because we treat them as a graf shel re’i and permit removing them even by hand (Magen Avraham 337:4; Gra”z 337:2). This last dispute affects Mrs. Friedman’s table tremendously. The rav who advised Aviva suggested an approach that avoids all these questions: By lifting up the plastic tablecloth with all the rubbish on it, one avoids the entire question, since everyone rules that this is permitted. Whether Mrs. Friedman must push the muktzah items off the table with a knife or napkin or whether she may pick up some of the objectionable items by hand depends on the last dispute quoted. However, it is still preferable that as the muktzah items are created, one should place them directly on a plate.

Observing the halachos of muktzah properly forces us to constantly focus on what we move and how we use it. Thereby, these laws imbue our whole Shabbos observance with greater focus and meaning!

*all names have been changed

 

The Lost Gift: Parashas Mishpatim and Shomrim

In this parshas Mishpatim, the Torah discuss the responsibility that a shomer assumes for someone else’s property. Does a shomer always assume this much responsibility? Stay tuned and find out!

gift boxWhile learning in my study one day, I was greeted by a knock at the door. I opened the door to find two women, Rivkah and Leah, standing in the doorway.

“Rabbi,” Rivka began somewhat apprehensively, “We have a shaylah that we need to ask you. I was supposed to bring a present to Lakewood for Leah’s daughter, but, somehow, it got along the way. I feel responsible. Leah feels that I am not responsible and I should not feel any obligation to compensate her daughter, but I feel that I should.”

“If anyone is responsible it is I,” replied Leah. “I keep insisting that Rivka should not pay, and she keeps insisting that she should. We decided that we would refer this to the Rav to decide.”

The case turned out to be a very interesting halachic shaylah.

A family member bought a very expensive wedding gift for Leah’s recently married daughter, who now lives in Lakewood. Leah heard that Rivka’s husband was driving to Lakewood, so she called to ask if he could bring the gift with him. Rivka suggested that Leah drop by and put the gift in the trunk of the car, so that they wouldn’t misplace it.

Upon reaching Lakewood, Leah’s daughter arrives to pick up the package. Rivka’s husband checks the trunk of the car, but the gift is not there!! He calls Rivka, who in turn calls Leah, who says that she definitely placed the gift in the trunk. The gift seems to have inexplicably disappeared!

Who, if anyone, is responsible to replace the gift?

I asked for some time to think about the shaylah. In the interim, I needed to address some pertinent questions, which provides an opportunity to review the relevant halachos.

There are several halachic areas we need to clarify:

  1. To what extent are you responsible for replacing an item that you were watching without remuneration?
  2. If you permit someone to place an item in your house or car, does that mean that you are now responsible if the item is damaged, lost or stolen?
  3. If you agree to transport an item as a favor, is there an assumption of responsibility, and if so, to what extent?

WHAT IS A SHOMER CHINAM AND TO WHAT EXTENT IS HE RESPONSIBLE?

Someone who assumes responsibility to take care of an item, but receives no benefit for doing so, is called a shomer chinam. He is responsible if the item becomes damaged, stolen, or lost because of his negligence, but not if he took proper care of the item.

EXAMPLE: Binyomin entrusted money to a shomer for safekeeping. When he came to collect his money, the shomer replied that he does not remember where he put it. Rava ruled that not knowing where you put something is negligent and the shomer must pay (Bava Metzia 42a).

WHAT IF HE DID NOT EXPRESSLY ASSUME RESPONSIBILITY?

A shomer may specify that he assumes no responsibility for an item (Mishnah, Bava Metzia 94a). Furthermore, if he clearly did not assume responsibility, he is also not obligated to pay.

EXAMPLE: While fleeing from the Napoleonic wars, Naftali buried valuables in a pit in his backyard, and offered Asher to hide his valuables there, too. The two of them fled to a safer area, hoping to return one day to unearth their valuables. Fortunately, the war ended, and they were able to return. Naftali was eager to unearth the valuables and give Asher back his money, but Asher was busy taking care of other matters. Naftali sent Asher a message that he was unearthing the valuables, but Asher did not arrive immediately. By the time Asher arrived, his valuables had disappeared. Does Naftali bear responsibility?

Naftali and Asher addressed the question to Rav Yaakov of Lisa, the author of Nesivos Hamishpat (291:2). The rav ruled that Naftali is not obligated to pay any damages, since he never assumed any responsibility for Asher’s valuables but merely made his hiding place available.

Thus, we have established that if a shomer assumes responsibility, he will have to pay for damage caused by his negligence, but if he does not assume responsibility, he does not have to pay.

However, our case is somewhat different from the case of the Nesivos. In his case, Asher knows that Naftali will not be around to supervise his property. In our case, Leah had accepted the gift on behalf of her daughter and Rivka suggested that it be placed in her car. Does that make Rivka responsible to replace it if it is lost?

Or, as we phrased our second question above: If you permit someone to place an item in your house or car, does that mean that you are now responsible if the item gets damaged, lost or stolen?

The Gemara raises the following shaylah which affects our question:

Daniel asked Shlomo if he could leave his sheep and some equipment in Shlomo’s yard. Subsequently, Shlomo’s dog, Fido, bit Daniel’s sheep; the next day, someone stole the equipment. Assuming that Shlomo was negligent, must he pay for the damages?

The question is whether Shlomo ever assumed responsibility for Daniel’s property. If he permitted Daniel to place the sheep and the equipment in his yard, does that mean that he assumed responsibility for this property? The Mishnah (Bava Kamma 47a) quotes a dispute between Rebbe and the Chachomim as to whether we assume that Shlomo took responsibility.

HOW DO WE PASKIN?

There are three opinions:

  1. Some rule that Shlomo is responsible for the damage. They contend that when someone grants permission to place items on his property, he assumes responsibility to look out for the items.
  2. Others contend that Shlomo is not responsible for the stolen equipment, but he is responsible for Fido biting the sheep (Shach 291:9). Permitting someone to place items on his property doesn’t mean that he assumes responsibility. However, Shlomo is liable if his animal caused damage to property that he allowed onto his premises.
  3. Shlomo does not need to pay at all since he never accepted responsibility (Shulchan Aruch, Choshen Mishpat 291:3). (According to this opinion, even though Shlomo’s dog bit Daniel’s sheep, Shlomo is not responsible for damage done by his own animal on his own property.)

The Shulchan Aruch rules like the third opinion that Shlomo is not responsible, although other poskim disagree. Thus, we see that although someone permits you to put something in his house or car, you cannot assume that this means he is taking responsibility for it. Thus, placing the gift in Rivka’s car does not, necessarily, mean that either Rivka or her husband is responsible for the gift.

However, there is a difference between Leah’s gift and Daniel’s sheep, other than the fact that one of them bleats. I am going to use another din Torah to demonstrate the difference between the two.

While Levi was packing his donkey to travel to the next city, Yehuda asked if he could send his shoes along. Levi responded, “You can put them on top of the donkey.” Yehuda complied, and Levi rode off without tying the shoes adequately to the donkey. Subsequently, when the shoes were lost, Levi claimed that he never assumed any responsibility for Yehuda’s shoes.

Is Levi responsible to pay Yehuda for his shoes? After all, he never told Yehuda that he was assuming responsibility; he simply allowed Yehuda to place his shoes on the donkey.

The Rosh (quoted by Tur Choshen Mishpat Chapter 291) ruled that Levi is indeed responsible, even though he never told Yehuda that he was assuming responsibility.

Why are Yehuda’s shoes different from Daniel’s sheep, where we assumed that Shlomo took no responsibility? The difference is that when Levi transports the shoes with him, Yehuda will no longer be able to watch them. Under these circumstances, we assume that Levi accepted responsibility, unless he specifically stated at the time that he did not. However, when Daniel puts his sheep into Shlomo’s yard, there is no reason why Daniel cannot continue to be responsible to take care of his sheep. Thus, there is nothing in Shlomo’s action that implies that he is assuming responsibility.

Based on the above analysis, it would seem that Rivka is indeed responsible since she made Leah the offer of placing the gift in her car. This implies that Rivka assumed responsibility.

However, Rivka’s gift is different from Yehuda’s shoes for two reasons:

  1. Rivka’s gift was not put into a place that requires any type of supervision. The locked trunk of a car is a secure place to leave items. Thus, it is less certain that we can assume that Rivka accepted responsibility.
  2. More importantly, Rivka told Leah to put the gift in the car, but also told her that her husband, not she, was going to Lakewood. Thus, Rivka certainly was not assuming responsibility for bringing the gift to Lakewood. We also cannot say that her husband assumed responsibility, when he never agreed expressly to take the package. Thus, it would seem that neither Rivka nor her husband is responsible. However, if her husband agreed to take the package, he would be responsible if, indeed, he had been negligent. Since we do not know where the package went, we would probably assume that the package disappeared because of some negligence on his part.

DOES THIS MEAN THAT LEAH IS RESPONSIBLE TO PAY HER DAUGHTER FOR THE GIFT?

Indeed it might. When Leah accepted the gift on her daughter’s behalf, she assumed responsibility as a shomer chinam. We now have a new shaylah: Did she discharge this responsibility when she placed the gift in Rivka’s car for the trip to Lakewood?

The Gemara records an interesting parallel to this case.

At the time of the Gemara, houses were not particularly secure places to leave valuables. For this reason, the proper place to store money and non-perishable valuables was to bury them in the ground. A shomer chinam who received money but did not bury the money would be ruled negligent, if the money was subsequently stolen (Bava Metzia 42a).

The Gemara mentions a case when this rule was not applied:

Someone entrusted money to a shomer who gave it to his mother to put away. His mother assumed that it was her son’s own money, not money that he was safekeeping for someone else, and therefore placed it in his wallet rather than burying it. Subsequently, the money was stolen and all three of them ended up appearing before Rava to paskin the shaylah.

Rava analyzed the case as follows: The shomer is entitled to say that he has a right to give something entrusted to him to a different member of his family for safekeeping. Furthermore, there is no claim against him for not telling his mother that the money was not his, because she will take better care of it assuming that it was his. Therefore, the shomer did not act negligently. The mother also did not act negligently – based on the information she had, she acted responsibly. Thus, neither one of them is obligated to pay (Bava Metzia 42b).

The principles of this last Gemara can be applied to our case. Neither Leah, nor Rivka, nor Rivka’s husband acted negligently in our case. Leah gave the gift to someone in a responsible way to get it to Lakewood. We have already pointed out that neither Rivka nor her husband ever assumed responsibility for the gift. Furthermore, neither one of them acted irresponsibly. Thus, it seems to me that none of the parties involved is halachically obligated to make restitution.

There is actually a slight additional angle to this story. Leah is, technically, obligated in an oath (a shevua) to her own daughter to verify that she indeed placed the gift in the car. However, since it is unlikely that Leah’s daughter will demand an oath from her, she is not obligated to pay.

Needless to say, Leah will apologize to her daughter even if she has no technical responsibility, and will probably offer her daughter a replacement gift. Hopefully her daughter will accept the loss of a gift as a minor mishap, and put it out of her mind.

In general, we should be careful when we assume responsibility for items belonging to others, to take good care of them and not leave them around irresponsibly or near young children. We should pray to be successful messengers when entrusted with other people’s property.

 

Do People Live in the Zoo, Part II

PENTACON DIGITAL CAMERALast week, I raised the following questions:

Question #1: Checking inside the eruv

“Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?”

Question #2: Shabbos in a warehouse

“May one carry in a warehouse on Shabbos?”

Question #3: Do people live in the zoo?

What do the previous two questions have to do with the title of this article?

One may carry inside such an area only when it is no larger than 5000 square amos (Mishnah Eruvin 23a), which equals approximately 1000* square meters or 10,000-11,000 square feet. For the balance of this article, I will refer to an area larger than a beis sasayim, that is, one that contains more than 5000 square amos, as a large area, and any area smaller than this as a small area. There is another factor that must be met to permit carrying in a small area that is not enclosed for residential use – its length may not exceed twice its width by more than one amoh (Mishnah, Eruvin 23a).

We will now continue our topic from where we left it last week.

Water sources

If a body of water, such as a lake or stream, is within an enclosed area, is the area still considered mukaf ledirah? Similarly, if an area was mukaf ledirah and then became flooded, may one still carry there (Eruvin 24a-b)?

On the one hand, since people do not live under water one could argue that any area covered by water is, by definition, not suitable for human habitation. On the other hand, mankind cannot survive without water; a nearby source of potable water is definitely a residential need.

The halachah is that water covering the ground does not usually create a problem, but there are three factors to be considered:

The quality of the water – can people use it?

How large an area is covered by water?

How deep is the water?

If the water is deep, not usable and covers a large area (more than 2500 square amos), that area is not mukaf ledirah, and the enclosures surrounding it do not permit one to carry there.

How deep?

According to most authorities, one need be concerned only when the water is ten tefachim deep, which is about 80 centimeters or about 2.5 feet (Shulchan Aruch, Orach Chayim 358:11). Others are more stringent and are concerned when the water is only three tefachim deep (quoted in Biur Halachah ad loc.).

Water quality

What is meant when we say that the water is usable? This issue is a subject of dispute among both early and late halachic authorities. There are two basic approaches, a stricter approach, which defines usable water as being drinkable (Rashi, Eruvin 24b s.v. Dechazi), and a more lenient approach, which rules that water suitable for laundry and similar uses is considered usable (Rashba, Avodas Hakodesh, Beis Nesivos 1:14:90 and 3:3:144; Ritva, Eruvin 24a).

In today’s world, this dispute would, seemingly, have a very common application. The run-off from rainstorms in suburbia crosses fertilized and pesticide-treated lawns. This water is definitely unsafe to drink. As a result, water accumulating to an appreciable depth over a large area could invalidate an eruv. However, when the water looks clear and is therefore suitable for laundry use, the Rashba would rule that it would not invalidate the eruv, even if it is deep and covers a large area. Thus, whether this water invalidates the eruv should be dependent on the dispute between Rashi and the Rasha.

How do we rule?

There is an interesting halachic curiousity that results here. Two of the most respected late halachic authorities are the Aruch Hashulchan and the Mishnah Berurah. In the vast majority of halachic issues, the Aruch Hashulchan rules more leniently than does the Mishnah Berurah. However, this is one of the instances in which the Mishnah Berurah (Shaar Hatziyun 358:81) rules more leniently, permitting carrying within an enclosed area that contains non-potable water that may be used for laundry or for animals to drink. The Aruch Hashulchan (358:23) requires that the water be potable.

Water seclusion

What does one do if there is an area of land covered by water in a way that it has the halachic status of a carmelis? The halachah is that, as in the instance of other areas that are not mukaf ledirah, carrying is prohibited in the adjacent residential area only when the area covered by water is not separated by a mechitzah. For example, a stream that contains unusable water runs through an area surrounded by an eruv. Does this render the entire eruv pasul?

One possible solution: To construct a tzuras hapesach that separates the prohibited area from the permitted.

A second possible solution: If the banks of the stream are sufficiently steep, these banks themselves serve to divide the water area from the eruv area and no further adaptation is necessary.

The city eruv

At this point, let us examine the first question I noted above:

“Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?”

We now are equipped to answer this question. Indeed, if the area within the eruv includes a large area that is planted or contains non-usable water, that area must be cordoned off from the eruv area in a halachically acceptable fashion. This requires essentially creating some type of halachically-approved divider. Otherwise, the eruv is invalid, and one may not carry there.

Thus, even if an eruv’s perimeters somehow, miraculously, survived the onslaught of a hurricane of the magnitude of Sandy, one will still not be permitted to carry within the eruv if there are areas of deep, unusable water that are more than ~5500 square feet.

Planting and the city eruv

Some authorities rule that planting an area is less of a problem in a city eruv than it is in someone’s private area. This is based on the reasoning, mentioned in the Gemara, that planting in a karpif invalidates an individual’s residential “wall.” However, if an entire city was enclosed, the planting of one individual cannot invalidate the enclosure. (Shu’t Dvar Shmuel #259, who introduces this approach, described planting which, by its nature is temporary, inside a city wall. It may not follow that this can be compared to a modern city and its eruv.) There are authorities who dispute this approach and rule that planting invalidates any type of enclosure (Maamar Mordechai 358:14; Chazon Ish, Orach Chayim 88:25).

Does an overgrown area invalidate an eruv?

Thus far, we have learned how planting or water can invalidate an eruv. What is the halachah if an area becomes overgrown with weeds or other shrubbery? Will this invalidate an eruv?

The late authorities debate whether only a planted area invalidates an eruv, or even an area that becomes overgrown on its own. I leave this question for the local eruv committee to discuss with its halachic authorities.

Do people live in the zoo?

The preceding discussion about mukad ledirah serves as an introduction to understanding the question, “Do people live in the zoo?” a practical question that was raised as early as the eighteenth century. The author of a series of scholarly Torah works, the Ohr Chodosh, Rabbi Elazar ben Elazar, sent a halachic inquiry to his mechutan, the Noda Biyehudah, Rav Yechezkel Landau, the chief rabbi of Prague. Where the Ohr Chodosh was then rav, in Cologne, there was a menagerie of wild animals within the area that they wanted to include within the town’s eruv. Based on his analysis of the dfference between the cases that are considered mukaf ledirah and those that are not, the Ohr Chodosh wanted to permit the zoo area as mukaf ledirah. He begins his analysis with the question:

Why is a vegetable garden or wood storage area considered non-residential, and yet an area in which animals are penned (a dir) is treated as residential?

The Ohr Chodosh, himself, felt that the dwelling of an animal is considered a residential use, and that this is true even regarding the dwellings of wild animals. Therefore, if someone builds a zoo with enclosures for the tigers, lions, bears and other species, each enclosure has the status of mukaf ledirah and can be more than a beis sasayim without prohibiting carrying.

A different scholar, identified in the responsum simply as Rabbi Nissan, disagreed with the Ohr Chodosh, contending that animal pens are considered mukaf ledirah only when they include a hut or other type of residence where the shepherd lives. He notes that Rabbeinu Yonasan, the major commentary on the Rif on Eruvin, mentions this distinction. The Ohr Chodosh retorted that he found this restriction, that a dir is considered mukaf ledirah only when it contains a residence of sorts for the shepherd, in no other halachic source, and therefore concluded that Rabbeinu Yonasan’s ruling is a minority opinion. The Ohr Chodosh contended that most authorities would accept his analysis.

On Rosh Chodesh Nisan 5548 (1788), the Noda Biyehudah answered the letter of the Ohr Chodosh, siding with Rabbi Nissan. Although the Noda Biyehudah agrees that the other authorities may not accept Rabbeinu Yonasan’s requirement of a guard hut, the key difference between a dir and a vegetable patch is that a dir requires a human presence, whereas a vegetable patch does not require a human presence. The Noda Biyehudah contends that an enclosure for wild animals will not be considered mukaf ledirah, and will be prohibited if the area is more than a beis sasayim, since people do not dwell among wild animals.

In his responsum, the Noda Biyehudah does not discuss what is the exact difference between a dir and a ginah, but other authorities do. The Tosafos Shabbos explains the difference to be that a dir is used by people at night, whereas a ginah is used only during the daytime. The Biur Halachah explains the dissimilarity in a different way, contending that a dir is adjacent to the house, and includes milking and other uses that are domestic. Therefore, its use is incorporated with the use of the residence.

Roofed

From the case of burgenin and some others, it appears that even a roofed area can be considered not mukaf ledirah. This is the opinion of most halachic authorities, although one major authority feels that burgenin is an exception, and that most roofed areas can be considered mukaf ledirah.

Based on this discussion, one can ask whether a warehouse, larger than a beis sasayim, that does not contain any type of residence, is considered mukaf ledirah. The use of a warehouse is not domestic and therefore could be conceived as not mukaf ledirah.

This question involved a dispute between the Mishnah Berurah and the Chazon Ish. The Mishnah Berurah holds that since a warehouse is a strongly constructed building, it qualifies as mukaf ledirah, regardless as to why it was constructed and how it is currently used. The Chazon Ish challenges this position, insisting that unless a structure includes some place to be used for sleeping, it is not considered mukaf ledirah, unless it meets one of the categories that the Mishnah or Gemara qualify as mukaf ledirah.

The dispute between the Mishnah Berurah and the Chazon Ish should affect only the status of the warehouse itself, and that only if it is larger than a beis sasayim. However, since a warehouse is completely enclosed its status will not prohibit an adjacent area. Thus, the area within the eruv surrounding the warehouse will remain unaffected by its status.

Shuls, batei medrash and bathhouses

The Aruch Hashulchan notes that shuls, batei medrash and bathhouses are all buildings whose purpose is not for residential purpose. One is not permitted to use a shul or a beis medrash for personal use, and a bathhouse is also not used for typical residential use. The Aruch Hashulchan therefore concludes that all of these areas do not qualify as mukaf ledirah, unless they include some type of residence for the building’s caretaker.

Conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. Certainly no more calories are expended when carrying from a reshus hayachid to a reshus harabim than when carrying a heavier item a greater distance within a reshus hayachid; yet, the first activity desecrates Shabbos and the second is permitted.

The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Rav Samson Raphael Hirsch Commentary to Shemos 20:11). Creating a beautiful Shabbos entails much planning and organization, realizing that preparation for Shabbos includes studying all the melachos of Shabbos. This helps us have a greater appreciation of Shabbos, and to get the maximum joy out of this special day.

* The measurements used in this article are meant only for rough calculation.

 

Do People Live in the Zoo?

PENTACON DIGITAL CAMERAQuestion #1: Checking inside the eruv

“Can the eruv fences, walls, and wires be checked religiously every week, yet the eruv is invalid?”

Question #2: Shabbos in a warehouse

“May one carry in a warehouse on Shabbos?”

Question #3: Do people live in the zoo?

What do the previous two questions have to do with the title of this article?

Answer: Invalidating an eruv from inside

With the direction of his rav, Yankel has joined the committee of makers and shakers working on building an eruv in his hometown. He now knows that the area in which he currently lives has the halachic status of a karmelis, an Aramaic word meaning an area in which one may not carry, but which can be enclosed to permit carrying. Creating the enclosure in a halachically approved way is what one does when building an eruv.

One of the benefits of his new project is that Yankel learns much about the laws of eruv. Among the laws he discovers is an entire area of halachah with which he was not familiar – that enclosing an area does not always permit carrying. Often, there is an area within the eruv that precludes carrying there. These areas are often called karpif, although Yankel discovers that this term is also not really accurate. As a result of his curiosity, he studies the relevant source material in the second chapter of Mesechta Eruvin, a topic that he, like most people, had never studied during his years in yeshivah.

What is a karpif?

Although min hatorah one may carry within any enclosed area, Chazal permitted carrying in a large area only when the enclosing of the area serves a residential purpose, which is called mukaf ledirah. If the enclosure was not mukaf ledirah, the area inside is also considered a karmelis in which one may not carry.

Technically, the word karpif means an enclosure outside the city in which one stores felled wood (Rashi, Eruvin 18a). However, the term is generally used to mean an enclosed area that is not mukaf ledirah.

Yankel learned that if an enclosure does not serve a residential purpose, one may carry within it only when it encloses an area that is no larger than the size of the courtyard of the mishkan, which was 50 amos (cubits) wide and 100 amos long, the size of 5000 square amos (Mishnah Eruvin 23a). An area this size is called a beis sasayim, an old farmers’ term based on how much seed they would plant there, and equals approximately 1000* square meters or 10,000-11,000 square feet. For the balance of this article, I will refer to an area larger than a beis sasayim, that is, one that contains more than 5000 square amos, as a large area, and any area smaller than this as a small area.

There is another factor that must be met to permit carrying in a small area that is not enclosed for residential use – its length may not exceed twice its width by more than one amoh (Mishnah, Eruvin 23a).

Why is a small karpif permitted?

Why may one carry in an area that is not mukaf ledirah when it is 5000 square amos or smaller? Was this size chosen arbitrarily?

Chazal permitted carrying in a small area, even when it is not mukaf ledirah, for the following reason: Since no one is permitted to live in the courtyard of the mishkan, the curtains that surround it do not make it mukaf ledirah. This would mean that carrying within the mishkan would be under the heading of a rabbinic prohibition. Yet this carrying was necessary on Shabbos for the regular functioning of the mishkan. Rather than treat the mishkan as an exception to the halachah, Chazal permitted carrying in any area that is this small, even when it is not mukaf ledirah (see Graz, Orach Chayim 358:3).

What is mukaf ledirah?

The definition of what qualifies as mukaf ledirah and what does not is, at times, not obvious. The Gemara (Eruvin 22a) itself states that there are instances when an enclosed area is roofed and resembles a building, yet it is considered not mukaf ledirah, and there are places that are open-air and yet have the status of mukaf ledirah. The Mishnah (Eruvin 18a) mentions four cases that qualify as mukaf ledirah, even though (according to Rashi) there is no roof over them. They are:

(1) Dir — a corralled area that one intends to plant eventually. At the moment, it is fallow, and one is grazing one’s livestock there, so that they naturally fertilize the field.

(2) Sohar, which is, according to Rashi, an area where the townspeople graze their animals, and, according to the Rambam, a prison.

(3) Muktzah — a backyard area.

(4) Chatzeir, a front yard.

The Ritva (Eruvin 22a) explains that the list is progressively more obvious; meaning that the first case, that of dir, is the least obvious “residential” area. Indeed, much halachic literature is devoted to explaining why an area enclosed for animals is considered residential, when, as we will soon see, areas enclosed for trees or vegetation are not.

Non-residential enclosures

Our next objective is to define what is considered a non-residential enclosure, eino mukaf ledirah, in which one may not carry unless it is small, as defined above. The Mishnah and the Gemara teach that several different types of enclosed areas are not mukafim ledirah. As I mentioned above, one of these is a karpif, an enclosure outside the city in which one stores felled wood (Rashi, Eruvin 18a). Similarly, a fenced-in orchard (Rambam, Hilchos Shabbos 16:1, based on Eruvin 25b), a vegetable patch or a grain field (Mishnah Eruvin 18a; Eruvin 23b) are not mukaf ledirah, even when they contain huts, called burgenin, for the watchmen (Eruvin 22a). In all of these instances, the fence built around the perimeter does not serve a residential need. Even the watchman’s hut is there not to serve as a residence, but to allow the watchman to remain nearby (Rashi, Eruvin 15a). (We should note that some authorities [Tosafos Shabbos, 358:1; Pri Megadim, Eishel Avraham 358:1] contend that if the watchman sleeps overnight in the hut, it is considered a residence. In their opinion, a burgenin is considered not mukaf ledirah because one uses it only in the daytime.)

We need to understand exactly why certain uses are considered residential, and others are not. However, prior to explaining these ideas, we need to clarify another aspect of this discussion.

Mixed neighborhoods

What is the halachah if an enclosure comprises both an area considered residential and an area that is not? For example, Yankel’s neighbor, Shmerel, has a large fenced-in backyard, which his family uses predominantly for barbecues and other recreation. It sounds as if this area should be treated as mukaf ledirah, even if it is larger than 5000 square amos. Indeed, its proximity to the house and its use would make this backyard mukaf ledirah.

However, this yard also includes a section planted with various spices and vegetables. As we learned above, a planted area is not mukaf ledirah. Do we consider the entire yard mukaf ledirah or not? May Shmerel’s family carry in the backyard? In the course of Yankel’s studying the laws of Eruvin, he discovered that carrying in his neighbor’s fenced-in yard might be prohibited!

A breached eruvNifratz bemilu’oh

To answer these questions, we need to explain a principle, called nifratz bemilu’oh, literally, breached in its entirety. Whenever an area in which one would otherwise be permitted to carry is open to an area where carrying is forbidden, the halachic result is that one may not carry in the otherwise permitted area (see Eruvin 25b). Thus, if it is prohibited to carry in the planted area, and the recreational part of Shmerel’s yard is nifratz bemilu’oh to the planted area, one cannot carry in any part of Shmerel’s yard (Shulchan Aruch, Orach Chayim 358:10). As we will soon see, this law has major ramifications for city eruvin also.

What is called “breached?”

Our next question, germane both to Shmerel’s yard and to our city eruv, is: How big a breach prohibits carrying?

There are two ways that a breach forbids carrying. One is when it is greater than ten amos, approximately seventeen feet or five meters. The other way is when the breach is smaller than ten amos but it comprises an entire side of the otherwise-permitted mukaf ledirah area. For example, if an otherwise-permitted rectangularly-shaped area is mukaf ledirah on three of its sides, but the remaining unwalled side opens to an area in which carrying is forbidden, even if the unwalled side is less than 10 amos wide one may not carry in the mukaf ledirah area.

In terms of Shmerel’s yard, this means that if the recreational part is not isolated from the garden, and the garden is large enough to prohibit carrying, the entire yard is prohibited. The same concept is true in a city eruv, as we will soon see.

How large a garden?

Before we can issue a ruling regarding Shmerel’s garden, we need one more piece of information. How large a garden will prohibit carrying?

The Gemara (Eruvin 23b-24a) states that if a planted area is larger than 5000 square amos, one may not carry in any part of the backyard. Even when the planted area is smaller than 5000 square amos, if the planted part is larger than the rest of the yard and the entire yard is larger than 5000 square amos, one may not carry in any part of it.

Healing a breach

Yankel and Shmerel measure the vegetable garden and the yard and discover that, lo and behold, one may not carry in Shmerel’s yard. Is there any way to fix the above problem to permit carrying within the recreational part of the yard?

Yes, there are at least two ways that one can do this. The first is to separate the recreational area from the planted area, and the second is to subdivide the planted area until it is small enough not to create a halachic issue. There are several ways of implementing either of these methods, but discussing them is beyond the scope of this article.

A flower garden

What is the halachah if Shmerel’s garden consists of a flower garden, rather than a vegetable patch? Does his flower garden invalidate the area for carrying, just as the vegetable garden did?

The halachic issue here is the following: People do not live in vegetable patches, but they do enjoy looking and smelling pretty and fragrant flowers. Is this a sufficient reason to consider a flower garden mukaf ledirah?

This matter is a subject of dispute, with different authorities on, shall we say, different sides of the fence. Although most authorities rule that a flower garden does not present a problem (see also Meiri, Eruvin 24a), the Divrei Chayim of Sanz (Shu’t Divrei Chayim, Orach Chayim 2:28) and the Sha’ul Umeishiv (Shu’t 3:131) were among the authorities who ruled that a flower garden will prohibit an eruv. Someone with a similar shaylah should refer it to his own rav or posek.

Fair lawn

As I mentioned above, the Gemara rules that a large, planted area for vegetables or grains will invalidate the eruv. Several halachic authorities say that a grass cover does not invalidate an eruv, since people relax by sitting or lying on the grass. However, can this logic apply when someone does not permit anyone to walk across their expensively tended lawn? This phenomenon, not uncommon in a modern suburban setting, implies that the contemporary lawn of this nature may not be considered mukaf ledirah and can therefore create a problem, if it is larger than a beis sasayim. I leave this question for the eruv movers and shakers to discuss with their posek.

Fenced first

Another halachic factor is that mukaf ledirah requires that the enclosure must have been constructed initially for residential use. This is called pasach u’le’besof hukaf, literally, he opened the entrance first and then afterwards enclosed the area (Eruvin 24a). However, if the area was enclosed when it did not yet have a residential use, providing it with a residential purpose later will not render the area one in which carrying is permitted.

For example, if Shmerel had originally decided to fence in his large yard because he wanted to plant vegetables, and only later decided to use it for domestic purposes, one may not carry in the yard, since its enclosure was originally not for domestic use. (There are ways to rectify such a situation, but this is a topic that we need to leave for a different time.)

Bitul mechitzos

We have yet to discuss another related question: What is the halachah if an area was originally mukaf ledirah, and then someone planted within the mukaf ledirah area? Does this now render the area a karmelis and prohibit carrying? As an example, let us imagine the following scenario: When Shmerel built the fence around his yard, his intention was for residential purposes, and it therefore had a status of mukaf ledirah. At this point, one could carry in the yard. Later, Shmerel decided to plant a large vegetable garden in the yard. Do we say that the yard remains permitted?

The halachah is that planting grain or vegetables invalidates the enclosure, and it is prohibited to carry in his yard.

However, there is an interesting halachah here. Not all planting invalidates the external walls. For example, the Gemara (Eruvin 23b) states explicitly that if one plants a large area of trees, one may continue carrying in the area. This ruling is very interesting, especially in light of the fact that a fence surrounding an orchard is not considered mukaf ledirah.

Trees versus veggies

What is the different between trees, which do not invalidate the eruv, and grain and vegetables, which do?

Rashi (Eruvin 23b) explains that people do not live in a vegetable patch; however, people will walk through an orchard to enjoy the shade. Thus, the planting of trees does not remove the designation of mukaf ledirah from the area.

As I noted above, the latter halachah applies only when one planted trees in an area that was already mukaf ledirah. In other words, there is a difference between enclosing the area, which requires that it initially is mukaf ledirah, and changing its status once it was mukaf ledirah. Enclosing an orchard is not considered mukaf ledirah.

We will continue this article next week…

* The measurements used in this article are meant only for rough calculation.

 

Who Is the True Redeemer?

Discussing the mitzvah of pidyon haben is certainly appropriate to this week’s parsha—I therefore bring you…

Who is the True Redeemer?

Ìàøóëå 1 ìåñÿöQuestion #1: Deadbeat dad

Mrs. Gerusha* calls me with the following question:

“I am a divorced baalas teshuvah with two young children, a son and a daughter. My son never had a pidyon haben, and my ex-husband is an agnostic who is not interested in participating. Am I required to perform the pidyon haben for my twelve-year-old son, and what is the procedure if I do?”

Question #2: Who’s on first?

Mrs. Gerusha’s son asks: “May I perform my pidyon haben at my bar mitzvah?”

Question #3: Late bloomer

The Schwartz family discovered observant Judaism sometime after their oldest son was born some twenty years ago. Recently, they realized that they have never fulfilled the mitzvah of pidyon haben. The question is: Who should perform the mitzvah now, Mr. Schwartz or his yeshivah-bachur oldest son? In other words, if a father did not redeem his firstborn son who is now an adult, may he still fulfill the mitzvah?

Answer

This week’s parshah includes one of the places where the Torah mentions the mitzvah of pidyon haben, the redeeming of a firstborn son. This mitzvah is usually fulfilled by a father giving to a kohen five silver coins, each of which is worth a sela (plural sela’im), the cost established by the Torah to fulfill this mitzvah. This mitzvah is required only if the firstborn is not a kohen or a levi, his mother is not the daughter of either a kohen or a levi, and his delivery was a natural birth, in which case he is called a petter rechem.

The Gemara (Kiddushin 29a) derives that a father is required to fulfill the mitzvah of redeeming his firstborn son.

There are three obvious situations in which the father would not perform this mitzvah:

  1. The father died before he performed the mitzvah.
  2. The father is not Jewish or is unknown.
  3. The father did not fulfill the mitzvah, although he could have.

Regardless as to why the father does not perform the mitzvah, the mother has no responsibility to do so. Rather, upon becoming bar mitzvah, the firstborn son himself becomes obligated in the mitzvah.

Thus, we can already examine Mrs. Gerusha’s question concerning her son who never had a pidyon haben, and whose father is unwilling to perform the mitzvah. She asked whether she is required to perform the pidyon haben.

Certainly, Mrs. Gerusha is not required to redeem her son.

May she?

When Mrs. Gerusha was told that she is not required to perform pidyon haben, she immediately asked whether she may perform the mitzvah. Answering this question requires an introduction.

Pidyon haben vs. bris

Pidyon haben is similar to the mitzvah of bris milah in that the father is the individual primarily responsible to fulfill it. However, there is a major difference between the two mitzvos: Should the father not fulfill the mitzvah of bris milah, the rest of the Jewish people become obligated to perform the bris milah on the uncircumsized child. The Gemara calls this “beis din being obligated in the mitzvah,” since they are the representative of the Jewish people.

On the other hand, in the case of pidyon haben, the community is not obligated to redeem this child. Should there be no father or should he fail to redeem his son, the mitzvah becomes the child’s to perform upon his becoming old enough to do so.

May they redeem?

Granted that no one is obligated to perform pidyon haben other than a father of the firstborn or, upon becoming of age, the firstborn son himself, may someone else give money to a kohen for the purposes of pidyon haben and thereby redeem the firstborn?

This question is discussed by several halachic authorities, the Taz (Yoreh Deah 305:11) concluding that someone other than the father cannot perform the redemption on behalf of a minor, whereas most authorities rule that a third party may redeem the firstborn (Nekudas Hakesef and Gra ad loc; Machaneh Efrayim, Hilchos Zechiyah #7; see also Ketzos Hachoshen 243:7 and Milu’ei Choshen ad locum). Thus, although Mrs. Gerusha is not required to redeem her son, according to most authorities, should she choose to do so, the redemption is effective.

When the bechor redeems himself, he recites a different version of the text than a father does when he redeems his son. When a father redeems his son, he recites Asher kideshanu bemitzvosav vetzivanu al pidyon haben [He Who commanded us in His commandments concerning redeeming the son] (Shulchan Aruch, Yoreh Deah 305:10). According to the Shulchan Aruch and the prevalent practice among Sefardim, when the bechor redeems himself, since he is not redeeming his son he closes the brocha with the words lifdos habechor (to redeem the firstborn). According to the Rema and the prevalent Ashkenazic custom, he concludes with the words al pidyon habechor (concerning redeeming the firstborn).

Early responsum

One of our opening questions asked whether a father is still responsible to observe the mitzvah of pidyon haben after his son becomes old enough to fulfill the mitzvah himself. This very question is discussed by the Rashba (Shu’t Harashba 2:321). The rabbonim of the city of Toledo, Spain, asked the Rashba (who lived his entire life in Barcelona) to rule on a situation in which a father had not redeemed his son shortly after the latter’s birth. Many years have passed, and the son is an adult who is interested in performing the mitzvah himself. The father has decided that he would like now to do the mitzvah, and contends that it is his mitzvah to perform. On the other hand, the son feels that once he became an adult the mitzvah is entirely his and no longer his father’s. Does the father still have a requirement to perform the mitzvah? Assuming that he does, is there a preference which of the two, the father or the son, performs the mitzvah?

The Toledo contention

The rabbonim of Toledo were unsure what to do, and therefore decided to have both the father and the son give the required amount for pidyon haben to the kohen, to be certain that the mitzvah was performed correctly. Since they were undecided as to whether the father or the son was observing the mitzvah, they ruled that neither one should recite the brocha prior to giving the kohen the redemption money. Since the kohen had now received more money than he was entitled to according to the halachah, he was required to return the difference. (The responsum does not say to whom the money was returned.)

Rashba’s ruling

Although the pidyon had already been performed according to their ruling, the rabbonim of Toledo asked the Rashba whether their decision was accurate. The Rashba explained that the rabbonim of Toledo had not ruled correctly. The mitzvah of a father to redeem his son never ends, even when the son becomes old enough to be required to perform his own redemption. Since both father and son are now required to perform the redemption, yet only one pidyon is required, whoever performs it first fulfills the mitzvah and should recite the brocha prior to giving the kohen the redemption money. The Rashba concludes that if the father and son ask which of them should preferably perform the mitzvah, the answer is the father. Therefore, in the case of Toledo, the son could have performed the mitzvah and recited the brochos (including shehecheyanu, see below), but, preferably, the father should have performed the mitzvah, in which case he would recite the brochos.

At this point, we can return to our opening question #3: The Schwartz family joined observant Judaism some time after their oldest son was born, some twenty years ago. Recently, they realized that they had never fulfilled the mitzvah of pidyon haben. The question is: Who should perform the mitzvah now, Mr. Schwartz, or his yeshivah-bachur oldest son? In other words, if a father did not redeem his firstborn son who is now an adult, may he still fulfill the mitzvah?

The answer is that either the father or the son can perform the mitzvah, and whoever does so recites the brochos. If they ask who should preferably perform the mitzvah, the answer is that it should be Mr. Schwartz.

Coercion

Should a father fail to perform the mitzvah of pidyon haben, the beis din has the halachic right and responsibility to coerce him to perform his mitzvah. What is the law if the father did not perform the mitzvah when his son was young, and now the son is old enough to perform the mitzvah himself? Does beis din coerce one of them to perform the mitzvah, and if it does, which one, the father or the son?

The Rashba rules that if the son is in a financial position to perform the mitzvah, we coerce the son, rather than the father, to do so. If the son is not in a financial position to perform the mitzvah himself, beis din should force the father.

Redeeming yourself

What is the procedure for performing pidyon haben when the adult son redeems himself?

Let us first review the basic steps of a regular pidyon haben performed by a father to redeem his recently born son.

A festive meal is celebrated in honor of the pidyon haben, in order to call attention to the mitzvah. After hamotzi has been recited, the father brings the bechor to the kohen, who is seated at a place of honor. The father declares to the kohen that the baby is a firstborn son, whom he is required to redeem.

The kohen then responds with the famous and enigmatic thousand-year old question: “Mai ba’is tefei?” “Which do you prefer? Would you rather have your child or the five silver coins, sela’im, of pidyon?”

The father responds that he would prefer his son, and that he has the money on hand with which to redeem his son. The father then recites two brochos: Asher kideshanu bemitzvosav vetzivanu al pidyon haben for the mitzvah of pidyon haben, and Shehecheyanu (Rema, Yoreh Deah 305:10). He then places the silver coins in the kohen’s hand. The kohen recites the verses of the birchas Kohanim and other words of blessing over the head of the bechor. The procedure is completed by the kohen reciting a brocha on a cup of wine and drinking it.

Redeeming oneself

An early halachic authority, the Maharshal, adapts the choreography of a standard pidyon haben to the situation in which a firstborn is redeeming himself because his father died before fulfilling the mitzvah:

The adult firstborn begins the proceedings by reciting the following declaration: “I am a firstborn petter rechem (see above) and Hashem commanded us to redeem the firstborn. Unfortunately, my father died before he redeemed me, and I remain with the responsibility to redeem myself… I am now prepared to fulfill the mitzvah of Hashem.”

The kohen then tells the firstborn, “Would you prefer your own body or the five sela’im that you are required to pay as your redemption money?” To which the firstborn answers: “I want to keep myself, and here are the five sela’im coins.” The firstborn then recites two brochos, the brocha on the mitzvah of pidyon haben and the brocha of Shehecheyanu (Yam shel Shlomoh, Kiddushin 1:53).

At this point, we can complete our answer to Mrs. Gerusha’s opening inquiry: “I am a divorced baalas teshuvah with two young children, a son and a daughter. My son never had a pidyon haben, and my ex-husband is an agnostic who is not interested in participating. Am I required to perform the pidyon haben for my twelve-year-old son, and what is the procedure if I do?”

As we mentioned above, the halachah is that a mother is not required to perform the mitzvah of pidyon haben. If the father refuses to perform the mitzvah, the mitzvah will devolve upon the firstborn son, upon his becoming obligated in mitzvos. In this latter case, the choreography would follow the Maharshal’s approach, making a slight modification in the text to accommodate the difference in circumstances – the firstborn’s father is alive.

Should the mother perform the pidyon on behalf of her son, as we mentioned above, most authorities consider the redemption valid, and the son will not be obligated in this mitzvah upon his becoming an adult. If she followed this approach, she should modify the pidyon haben choreography to note that she is redeeming her son. Personally, if I were asked what to do, I would advise them to wait until the son is old enough to perform his own pidyon, and to follow the text mentioned by the Maharshal, with the appropriate change reflecting the fact that the father is still alive.

When to redeem himself?

If the son is performing his own pidyon haben, when should he do it?

Since he becomes obligated in this mitzvah upon his bar mitzvah, he should perform the pidyon haben as soon as he has money with which to perform it. He is not required to beg or borrow money in order to do so, but may wait until he has earned the money or received it as a present. Other people may give him money so that he can perform the pidyon haben. Anyone may pay for the festive pidyon haben seudah.

This leads us to a new question: Since they would be celebrating a special meal on the occasion of his turning bar mitzvah, should they make the pidyon haben at that meal, or have two separate festive meals, one for the pidyon and the other for the bar mitzvah?

Combining semachos

Is it permitted for the firstborn bar mitzvah to combine his bar mitzvah celebration party with the pidyon haben? The background to this question is as follows:

The Mishnah (Moed Katan 8b) prohibits getting married on Chol Hamoed. The Gemara presents several disputing reasons for this ruling. One approach is that one should not overlap two festivities. Does this concern apply should the firstborn son celebrate his pidyon haben and his bar mitzvah at the same banquet – that this joint celebration deters from the celebration of one of the mitzvos?

Pidyon haben on Chol Hamoed

Tosafos (Moed Katan 8b s.v. Mipenei) discusses whether the prohibition against marrying on Chol Hamoed extends to other celebrations, such as a pidyon haben. At first, he considers that this might be prohibited, but he concludes that the Mishnah’s prohibition includes only getting married on Chol Hamoed, but not pidyon haben and other celebrations that are not as festive as is a wedding. This decision is followed by the Shulchan Aruch (Orach Chayim 546:4) and others (Birchei Yosef, Yoreh Deah 305:18), but not by all authorities (see Rema, Yoreh Deah, 305:11). Similarly, we rule that a bris, a sheva brachos or a bar mitzvah may be celebrated on Chol Hamoed (Shulchan Aruch, Orach Chayim 546:3, 4), and that the only combined celebration prohibited is a wedding on Chol Hamoed.

Thus, it is perfectly fine for the son to do his pidyon haben at his bar mitzvah celebration. As a matter of fact, I would strongly encourage that he do so if he has the money with which to fulfill the mitzvah, since this accomplishes that fulfilling the mitzvah of pidyon haben is not delayed, and that it is observed at a festive occasion.

Thus we can now answer Mrs. Gerusha’s son’s question that we quoted at the beginning of this article: “May I perform my pidyon haben at my bar mitzvah?”

The answer is that he certainly may, and, since it is the first opportunity for the son to do so, it is, indeed, an exemplary time to perform the mitzvah.

Conclusion

Since the time of makas bechoros, all first-born males have a certain kedusha. This special sanctity should have resulted in their taking a special role in the service in the Beis Hamikdash. However, because the bechorim were involved in worshipping the eigel hazahav, they lost their unique status and could no longer perform any special role there. As a result, the bechor must undergo a redemption ceremony to make amends – which is accomplished by giving money to a kohen as a means of “redeeming” his kedusha.

* All names have been changed to protect people’s privacy.