The Whys and Wherefores of Zachor

Question #1: Homebound

“As a mother of several small children, it is not easy for me to go out on Shabbos to hear Parshas Zachor. Am I required to do so?”

Question #2: Outreaching in the Afternoon

“At the outreach program that I run, many of our students do not arrive on Shabbos until the afternoon. Should we have a second Parshas Zachor reading for them?”

Question #3: Reading without a Brochah

“Why is no birkas haTorah recited on Parshas Zachor at a women’s reading?”

Answer:

Introduction:

This Shabbos we read the special maftir that begins with the words Zachor es asher asah lecha Amalek baderech be’tzeis’chem miMitzrayim, “Remember what Amalek did to you on the road as you were leaving Egypt.” According to the Rambam and many others, this short maftir reading actually includes three different commandments:

(1) A positive mitzvah, mitzvas aseh, to remember the evil that Amalek did (Sefer Hamitzvos, Positive Mitzvah #189).

(2) A lo saaseh commandment not to forget what happened (Sefer Hamitzvos, Negative Mitzvah #59).

(3) The mitzvah to blot out the people of Amalek, mechiyas Amalek (Rambam, Hilchos Melachim 5:5, and Sefer Hamitzvos, Positive Mitzvah #188; Semag).

The Torah’s repetitive emphasis, remember and do not forget, teaches that the commandment “remember” means to express, to state it as a declaration. This is similar to the mitzvah of Kiddush, Zachor es yom haShabbos lekadsho, which is a requirement to state the sanctity of Shabbos and not simply to remember Shabbos (Sifra, beginning of Parshas Bechukosai). In addition, many authorities derive from the doubled command that the Torah requires us to review this declaration annually, since after a year one might forget it (see Sefer Hachinuch, Mitzvah 603). The Sefer Hachinuch explains that since the mitzvah is to make sure that one does not forget, the Torah requirement is to restate this reminder every one to three years. The requirement of the mitzvah is fulfilled both in one’s heart and on one’s lips (Sefer Hachinuch).

(We should note that some authorities [Behag, Rav Saadya] count all three of the mitzvos mentioned above as one mitzvah in the count of the 613. Presumably, they consider these additional statements of the Torah as encouraging us to remember to fulfill the mitzvah of destroying Amalek.)

The Gemara (Megillah 18a) states that the positive mitzvah of remembering what Amalek did requires reading from a sefer Torah. For this reason, many authorities conclude that the annual public reading of Parshas Zachor from a Sefer Torah is required min haTorah (see Tosafos, Megillah 17b s.v. kol and Ritva ad loc.; Tosafos, Brachos 13a; Rosh, Brachos 7:20). Some conclude that the requirement to hear Parshas Zachor is even greater than that of hearing Megillas Esther, since the mitzvah of reading Megillah is miderabbanan, whereas Parshas Zachor is required by the Torah (Terumas Hadeshen #108). For this reason, the Terumas Hadeshen concludes that those who live in places that have no minyan are required to go to where there is a minyan for Shabbos Zachor to hear this reading, a ruling codified in the Shulchan Aruch (Orach Chayim 685:7).

Those who disagree

Notwithstanding the long list of recognized early authorities who rule that an annual reading of Parshas Zachor is required min haTorah, several later authorities find this position difficult to sustain, contending that the requirement was introduced by Chazal. For example, the Minchas Chinuch (#603) states that the requirements for a minyan and a sefer Torah can be only miderabbanan. Similarly, Shu’t Toras Chesed (Orach Chayim #37) provides a lengthy analysis as to why he feels that it is difficult to rule that reading Parshas Zachor annually is a Torah requirement. Nevertheless, in his final conclusion, he accepts the decision of the earlier authorities who rule that the Torah requires that we hear Parshas Zachor every year.

Hearing the parshah

At this point, we should explain the following question: If we are required to read Parshas Zachor, how do we perform the mitzvah by listening to the reading, without actually saying the words? The answer is that there is a halachic principle called shomei’a ke’oneh, hearing someone recite the appropriate passage fulfills a mitzvah responsibility the same way reciting it does. Shomei’a ke’oneh explains how we observe the mitzvah of kiddush when we hear someone else recite it, and applies in numerous other situations, such as reading Megillas Esther and blowing shofar.

For shomei’a ke’oneh to work, the individual who is reciting must have in mind that he is performing the mitzvah on behalf of those listening, and the listeners must have in mind that they are fulfilling their duty to perform the mitzvah by listening. It is for this reason that, in most shullen, prior to the reading of Parshas Zachor the gabbai, baal keriah or rabbi announces that everyone should have the intention to fulfill the mitzvah.

Custom of the Gra

The Maaseh Rav (#133) records that the Gra not only received the aliyah for Parshas Zachor, but used to read the Torah himself for that aliyah. Presumably, the reason he did this was because of the general principle of mitzvah bo yoseir mibeshelucho, “it is a bigger mitzvah to fulfill a commandment by performing the mitzvah oneself than by relying on someone else to perform it.”

The Sefer Torah was pasul!

What is the halachah if one discovers, after the reading, that the Sefer Torah used for reading Parshas Zachor is missing a letter or has some other defect that renders it invalid? Must one re-read Parshas Zachor?

Allow me to provide some background. Although there are rishonim who rule that the mitzvah of keri’as haTorah does not require reading from a kosher Sefer Torah, the halachic conclusion is that it does. However, if during or after keri’as haTorah one finds that the sefer Torah was not kosher, one is not required to repeat what was already read (Shulchan Aruch, Orach Chayim 143:4). The rationale behind this is that since the mitzvah of reading the Torah is miderabbanan, one can rule that, bedei’evid, after one read the Torah, one fulfilled the mitzvah.

Based on the assumption that the mitzvah of Parshas Zachor is min haTorah, the Pri Megadim suggests that if the sefer Torah used was found to be invalid, one is required to read Parshas Zachor a second time, from a different sefer Torah (Pri Megadim, Mishbetzos Zahav, Orach Chayim 143:1).

Birkas hamitzvah

Why is no birkas hamitzvah recited for Zachor? When Parshas Zachor is read as maftir, the person receiving the aliyah recites birkas haTorah before it is read, as we do with all aliyos to the Torah. Why is no birkas hamitzvah recited before reading Zachor es asher asah lecha Amelek,since it is one of the 613 mitzvos?

The authorities answer that we do not recite a brochah on an act of destruction, even though the world benefits from the removal of evildoers. This can be compared to one of the reasons cited why we do not recite the full Hallel on Pesach after the first day or days. “My creations are drowning, and you are singing praise?” Similarly, it is inappropriate to bless Hashem for the ability to destroy evil (Kaf Hachayim 685:29, quoting Yafeh Leleiv).

What exactly is the mitzvah?

Among the rishonim and geonim, we find differing opinions as to exactly what this mitzvah entails. Some understand that the mitzvah of remembering Amalek is a requirement to know the laws involved in destroying Amalek (Raavad and Rash to Sifra, beginning of Parshas Bechukosai, as explained by the Encyclopedia Talmudis). According to this approach, the mitzvah of zechiras Amalek is primarily a mitzvah of learning Torah.

On the other hand, most authorities seem to understand that the mitzvah is to take to heart the evil that Amalek did and represents, and that it is our responsibility to combat evil in the world and help make the world a more G-dly place.

Why specifically Amalek? Because after the Exodus from Egypt and the splitting of the sea, all the nations were afraid of the Jews, until the moment that Amalek attacked. Although Amalek was beaten, this attack decreased the nations’ tremendous awe and fear of the Jews (Rashi).

An afternoon reading

At this point, I would like to address one of the questions cited above:

“At the outreach program that I run, many of our students do not arrive on Shabbos until the afternoon. Should we have a second Parshas Zachor reading for them?”

This question was posed to Rav Shmuel Vozner, of Bnei Braq, by someone doing outreach in a small community in Brazil (Shu’t Shevet Halevi 4:71). The community had a minyan in the morning, but most of the people did not come. The question was whether they should have a second Parshas Zachor reading late in the day.

Rav Vozner compares this situation to the following responsum authored by the Chida.

On Shabbos Parshas Shekalim in a small town, the local townspeople forgot to read the special maftir on Shabbos morning, and realized it in the afternoon. The townspeople proposed three options:

Some suggested that at minchah they read Parshas Shekalim for the kohen, and for the other two aliyos they read the regular minchah reading from the next week’s parshah.

Others suggested that they read Parshas Shekalim on Monday, instead of the weekday reading, since it was still before Rosh Chodesh Adar.

Still others suggested that they read Parshas Shekalim the next Shabbos, as maftir.

The Chida disputed all three approaches, contending that Parshas Shekalim may be read only in the morning, and can be read only on the Shabbos on which it is designated to be read. In his opinion, one who missed reading Parshas Shekalim at its appropriate time does not fulfill the takanas chachamim by reading it any other time (Shu’t Yosef Ometz #27).

Rav Vozner contends that, according to the Chida, just as one cannot read Parshas Shekalim after its designated time, one cannot read Parshas Zachor after its designated time, and that, therefore, one cannot read it in the afternoon for those who missed it in the morning.

However, it appears that not all authorities accepted this ruling of the Chida. The Dagul Meirevavah (Orach Chayim 135) rules that a community that was unable to have keri’as haTorah on Shabbos morning, but was able to have it on Shabbos afternoon, should read the full reading and call up seven people prior to beginning minchah. Then, after reciting Ashrei and Uva Letzion, they should take out the Sefer Torah again and read the appropriate minchah reading from the following week’s parshah. Thus, he holds that one may read the main Shabbos reading in the afternoon, if necessary, which disagrees with the Chida’s ruling.

One could argue, however, that the Dagul Meirevavah might accept the Chida’s ruling that one cannot read Parshas Shekalim in the afternoon, but for a different reason: maftir may be read only immediately following the rest of the week’s reading, and not by itself.

However, there might be a difference between Parshas Shekalim, whose reading does not fulfill any mitzvah of the Torah, and Parshas Zachor. Since Parshas Zachor might fulfill a Torah requirement, there is a responsibility to hear it, even if you were not in shul Shabbos morning. This is the reason why there is a widespread custom of having Parshas Zachor readings in the afternoon for those who cannot attend the reading in the morning.

Women and Parshas Zachor

Now that we understand the basics of the mitzvah, we can address the first question asked above — whether women are obligated to hear Parshas Zachor annually. The Chinuch states that women are excluded from the requirement to remember to destroy Amalek, since they are not expected to wage war. In his opinion, women have no obligation to hear Parshas Zachor, although they certainly may hear it and receive reward for doing so, as one who observes a mitzvah in which s/he is not obligated.

Other authorities dispute the Sefer Hachinuch’s approach. In Adar 5628 (1868), Rav Yaakov Ettlinger, the author of the classic Aruch Laneir commentary on several mesechtos of the Gemara, was asked by his son-in-law, Rav Moshe Leib Bamberger, whether women are required to hear Parshas Zachor. The Aruch Laneir reports that he asked his rebbe, Rav Avraham Bing, who told him that Rav Nosson Adler (the rebbe of the Chasam Sofer) ruled that women are required to hear Parshas Zachor, and he insisted that they all go to hear it. The Aruch Laneir explains that Parshas Zachor is not a time-bound mitzvah, since one can read Parshas Zachor whenever one wants, as long as one reads it once a year. He then quotes the Chinuch’s reason to absolve women from the obligation, and notes that it should not make any difference if women are the actual warriors, since they are involved in destroying Amalek – as evidenced by Esther’s participation (Shu’t Binyan Tziyon 2:8).

Others dispute the basic assumption of the Chinuch, since, in a milchemes mitzvah, everyone is obligated to contribute to the war effort, even a newlywed bride (Sotah 44b). Evidence of this is drawn from Yael, who eliminated Sisra, and Devorah, who led that war effort (Minchas Chinuch). On the other hand, others find creative reasons to explain and justify the Sefer Hachinuch’s position. (The intrepid reader is referred to the responsum on the subject penned by Rav Avraham of Sochatchov [Shu’t Avnei Nezer, Orach Chayim #509].)

The Kaf Hachayim (685:30) presents a compromise position, ruling that women are obligated in the mitzvah to remember the events of Amalek, but are not obligated to hear Parshas Zachor, since this is a time-bound mitzvah. (See also the Toras Chesed, who reaches a similar conclusion, but based on a different reason. More sources on this topic are cited by Shu’t Yechaveh Daas 1:84.)

With or without a brochah?

It has become fairly common today to have special women’s readings of Parshas Zachor later in the day, for the benefit of those who must take care of their children in the morning, during regular shul davening. The universal practice is not to recite a brochah of any type before these readings. There are three reasons why one should not recite a brochah on the afternoon reading:

(1) We do not recite a brochah on the mitzvah of Zachor.

(2) It is not certain that women are obligated to hear this reading.

(3) It is not clear that one may recite maftir when it does not immediately follow the reading of the Torah.

Despite what we have just written, some authorities contend that whenever one reads from a sefer Torah in public, one is required to recite a brochah, because of the Torah-ordained mitzvah of birkas haTorah. In their opinion, this is true even when the reading itself is not required, and even when one has already recited birkas haTorah in the morning (Be’er Sheva and Shu’t Mishkenos Yaakov, both quoted by the Toras Refael #2). Although the Toras Refael concludes that most rishonim dispute that reciting birkas haTorah under these circumstances is a Torah requirement, he nevertheless understands that the Shulchan Aruch rules that birkas haTorah is required miderabbanan, whenever the Torah is read in public.

Based on this opinion of the Toras Refael, some contemporary authorities feel that one should avoid entirely the practice of additional Shabbos Zachor readings, since the special reading creates a safek brochah, a question as towhether one should recite a brochah on the reading (seen in print in the name of Rav Elyashiv). Nevertheless, the accepted practice is to have these special readings to enable women to fulfill the mitzvah.

On the other hand, the Minchas Yitzchak was asked whether one makes a brochah for an auxiliary Parshas Zachor reading (Shu’t Minchas Yitzchak 9:68). He quotes those who contend that every public reading of the Torah requires a brochah, and then notes many authorities who did not share this opinion. The Minchas Yitzchak then specifically mentions the practice of those who read all of Sefer Devarim in shul on the night of Hoshanah Rabbah without reciting a brochah, noting that this was the practice of the Divrei Chayim of Sanz. He also quotes several other authorities who advocate reading the parshah of the day’s nasi after davening each day of the first twelve days of Nissan, also a custom performed without first reciting a brochah.

Thus, we have several precedents and authorities who ruled that one may have a public reading of the Torah without reciting a brochah, and there is, therefore, no need to change the established practice of reading Parshas Zachor and not reciting a brochah beforehand. We should also note that when the Magen Avraham (139:5) quotes the opinion of the Be’er Sheva, he opines that once one has recited birkos haTorah in the morning, he exempts himself from any requirement to recite further brochos on reading Torah that day, unless there is a specific institution of Chazal to recite them.

Reading on Purim

Some authorities contend that a woman may fulfill her responsibility to hear the mitzvah of mechiyas Amalek by hearing the Torah reading on Purim that begins with the words Vayavo Amalek (Magen Avraham 685). Since many later poskim dispute this, I refer you to your halachic authority regarding this question.

Conclusion

The Semak (Mitzvah #23) explains that the reason for the mitzvah not to forget what Amalek did is so that we always remember that Hashem saved us from Amalek’s hands. Constant perpetuation of this remembrance will keep us in awe of Hashem, and this will prevent us from acting against His wishes.

Shul Building, Part II

Question #1: One shul

“May we merge two existent shullen, when each has its own minhagim?”

Question #2: Two shuls

“Is it permitted to leave a shul to start our own?’

Question #3: More seats?

“Can there ever be a problem with adding more seats to a shul?”

Introduction:

Our batei kenesiyos and batei midrashos, the buildings that we designate for prayer and for study, are referred to as our mikdash me’at, our holy buildings reminiscent of the the sanctity of the Mishkan and the Beis Hamikdash.

As I mentioned in last week’s article, there is a halachic requirement to build a shul. To quote the Rambam (Hilchos Tefillah 11:1-2), Any place that has ten Jews must have available a building that they can enter to pray at every time of prayer.

Changing neighborhoods

An interesting teshuvah from Rav Moshe relates to a shul building that had been originally planned with a lower level to use as a social hall, with the shul intended to be on the upper floor. They began to use the social hall for davening until they built the shul on top, but the neighborhood began to change. Before they even finished the social hall, it became clear that they would have no need to complete the structure of the building. They never finished the building, and instead, directed the efforts and finances toward purchasing a new shul in a neighborhood to which people were moving. The old shul, or, more accurately, the “social hall” part of the old shul building, is at the stage where there is barely a minyan left, and the dwindling numbers imply that it is not going to be very long until there is no functioning minyan. The question is that they would like to sell the old building and use the money to complete the purchase of the new building. Furthermore, the mikveh in the town is now in a neighborhood to which women are hesitant to travel, so they want to use the funds from the old shul building to defray the construction costs of a necessary new mikveh.

Because of the specific circumstances involved, including that it is unlikely that people from the outside will drop in to daven in this minyan anymore, Rav Moshe rules that they are permitted to sell the building.

A similar responsum from Rav Moshe was when they needed to create a shul in a neighborhood where there was a good chance that the Jewish community there would not last long. Rather than declare their building a shul, they called it a library and used it as their shul. Rav Moshe suggests that they might have been required to do so, since they knew from the outset that the days of the Jewish community were numbered (Shu”t Igros Moshe, Orach Chayim, 2:44).

More seats?

At this point, let us discuss the third of our opening questions:

“Can there ever be a problem with adding more seats to a shul?”

There is an early responsum on the topic (Shu”t Harivosh #253), and the ruling might seem to us counterintuitive. A wealthy individual purchased several seats in the shul many years before. Probably, when the shul was built, the community had sold or perhaps even auctioned seats, at prices depending on their location (think of the relative ticket prices on theater seats, lehavdil). The seats are considered private property and are even at times rented out to others.

There is now a shortage of seats in the shul and the community would like to add new seats in empty areas of the shul. The wealthy fellow claims that this will make it more difficult for him to get to his seat, and that his own seat will be more crowded as a result. Can the community add seats, notwithstanding his claim?

The Rivosh rules that the community cannot add new seats, because the wealthy fellow already owns the right to get to his seat in a comfortable way. However, the Rivosh rules that the community may do the following to try to increase the availability of seats:

1. They may set a limit on the rental price of the existing seats.

2. They may pass a regulation that unused seats must be rented out.

Building two shuls

There is an old Jewish joke about the Jew stranded on a desert island who built two shuls, one to daven in, and the other never to walk into. Is there any halachic basis to this habit we have of opening several competing shullen in the same neighborhood?

Indeed, there are old responsa regarding this question. The Radbaz, one of the greatest halachic authorities of the fifteenth century, was asked such a shaylah (Shu”t Haradbaz #910).

A man named Yehudah Abualfas wanted to open a second shul in his town. The background appears to be as follows: The community, which may have been located somewhere in Egypt, was composed predominantly of families who originated from Tunisia, but there were individuals who had settled there from other places. The shul followed the minhag of Tunis.

Yehudah Abualfas, who was born and raised in this community with Tunisian customs, and everyone else living in the town, were members of the general community. They donated to the community’s tzedakah fund, participated in its fees and taxes, and davened in the community shul which followed minhagei Tunis.

Abualfas’s family originated from a place where they followed the customs of the Spanish communities, not those of Tunisia. (Ashkenazim tend to group Sefardim and Edot Hamizrah together as one group. Technically, Sefardim are those whose antecedents once lived in Spain, whereas there were Jewish communities from Morocco to Iran and even farther east whose ancestors never lived in Spain and should be called Edot Hamizrah.) Abualfas and his friends had begun to develop their own community, consisting of members who identified as Sefardim and not as Tunisians, and they wanted to create their own community following minhag Sefard.

Shul versus community

The Radbaz divides the question into two topics: May the Sefardim establish their own shul, and may they establish their own community?

Regarding the establishing of their own community, which would mean that they would no longer participate in the tzedakah fund and other taxes and fees of the general community, the Radbaz rules that, once they have individually been paying as members of the main community, they cannot separate from that community and create their own. As individuals, they are bound to continue contributing to the main community.

However, regarding whether they may create their own shul, the Radbaz rules that they may, for the following reason: since they do not want to be forced to daven with the rest of the community, their desire to have their own shul will disturb their kavanah while davening. The Radbaz discusses at length the issue of davening with kavanah. He notes that one is not permitted to daven when one is angry, and that the Gemara states that, if the amora Rav Chanina ever got angry, he did not daven that day. Furthermore, we see that any distraction is a reason why one should not daven, even that of an enticing fragrance. Therefore, one may not daven when in the presence of people that one does not like. The Radbaz further suggests that just as there is a halacha that one will study Torah properly only when he is interested in the topic, a person will be able to concentrate in his davening only when he is praying where he is happy. For these reasons, the Radbaz rules that people who are not satisfied praying with the rest of the community are permitted to organize their own shul. However, he rules that it is within the community’s prerogative to ban the forming of other shullen, when this will harm community interests.

Berov am hadras melech

The Radbaz then discusses the halachic preference of berov am hadras melech, a large group of people (attending a mitzvah) honors the King (Rosh Hashanah 32b). This means that it is preferable that a large group of people daven in one shul, rather than split among several smaller shullen. The Radbaz concludes that, indeed, it is preferable for everyone to daven in the same shul but, when people will be unhappy, that factor permits them to open their own shul.

The Radbaz closes this discussion with the following:

“Do not interpret my words to think that I believe that dividing into different shullen is good. G-d forbid… However, we are required to try as hard as possible that everyone pray with a full heart to his Father in Heaven. If it is impossible to pray with a full heart when davening in a shul that one does not enjoy, and the people will constantly be arguing, having different shullen is the lesser of the two evils.”

An earlier authority, the Rivosh (Shu”t Harivosh #253) mentions the same ruling — individuals who want to establish their own breakaway minyan cannot be stopped, and that it is improper to prevent this. However, if the members of the existing shul claim that their shul requires the income or membership to keep going, one should examine whether the claim is truthful. If, indeed, it is, one should work out a plan that accommodates the needs of both communities. (See also Rema, Choshen Mishpat 162:7.)

Two shuls

At this point, we can now address the second of our opening questions: “Is it permitted to leave a shul to start our own?”

The short answer is that there are circumstances when this is permitted, although, in an ideal world, it is not preferred.

One shul

At this point, let us examine the first of our opening questions: “May we merge two existent shullen, when each has its own minhagim?”

The answer is that, because of the rule of berov am hadras melech, it is preferable to merge shuls into a larger entity, but, as I explained above, this will depend on circumstances (see also Shu”t Binyan Tziyon 1:122). If the members understand that it is a greater honor to Hashem to have a large shul with many people davening together, that is preferred.

Conclusion

Understanding how much concern Chazal placed in the relatively minor aspects of davening should make us more aware of the fact that davening is our attempt at building a relationship with Hashem. As the Kuzari notes, every day should have three high points — the three times that we daven. We should gain our strength and inspiration for the rest of the day from these three prayers.

The power of tefillah is very great. Man was created by Hashem as the only creation that has free choice. Therefore, our serving Hashem and our davening is unique in the entire spectrum of creation. Remember that we are actually speaking to Hashem, and that we are trying to build a relationship with Him. Through tefillah, one can save lives, bring people closer to Hashem, and overturn harsh decrees. We are required to believe in this power. One should not think, “Who am I to daven to Hashem?” Rather, we must reinforce the concept that Hashem wants our tefillos, and He listens to them!

Shul Building

Question #1: One shul

“May we merge together two existent shullen, when each has its own minhagim?”

Question #2: Two shuls

“Is it permitted to leave a shul to start our own?’

Question #3: Old shul

“In our town, almost everyone has moved away from the ‘old neighborhood,’ which has now, unfortunately, become a slum. The sprinkling of Jewish people still there can no longer maintain the shul. Are the people who used to live there still obligated to maintain the old shul building?”

Question #4: New shul

“We have been comfortably davening in different people’s houses, three times a day, seven days a week. Now, some individuals are clamoring that they want us to build a shul, which is a huge expense. Isn’t this chutzpah on their part, when we are all struggling to pay our mortgages?”

Introduction:

Our batei kenesiyos and batei midrashos, the buildings that we designate for prayer and for study, are referred to as our mikdash me’at, our holy buildings reminiscent of the the sanctity of the Mishkan and the Beis Hamikdash.

There is a halachic requirement to build a shul. To quote the Rambam (Hilchos Tefillah 11:1-2), Any place that has ten Jews must have available a building that they can enter to pray at every time of prayer. This building is called a beis hakenesses(synagogue). The members of the community can force one another to build a synagogue, to purchase a sefer Torah and books of the prophets and of the kesuvim. When you build a synagogue, you must build it in the highest part of the town… and you must elevate it, until it is taller than any of the courtyards in town.

We see from the words of the Rambam that it is not sufficient to have an area available in which one can daven when necessary – it is required to have a building designated specifically for this purpose, even if the shul will be empty the rest of the day (Shu”t Igros Moshe, Orach Chayim, 2:44). Rav Moshe Feinstein explains that a community is required to have a building designated to be their mikdash me’at.

Since it is a community responsibility to have a shul building, the minority of the membership of a community may force the majority to raise the money to build a shul (Rema, Choshen Mishpat 163:1). In earlier generations, communities had the authority to levy taxes on their members. Since building a shul is a community responsibility, they could require people to provide the funds necessary for this project.

Must we build a shul?

At this point, let us address one of our opening questions: “We have been comfortably davening in different people’s houses, three times a day, seven days a week. Now, some individuals are clamoring that they want us to build a shul, which is a huge expense. Isn’t this chutzpah on their part, when we are all struggling to pay our mortgages?”

The answer is that, not only is it not chutzpah on the part of those individuals, the halachic right is on their side. The community is required to have a shul, and it is unsatisfactory that the minyan takes place in a home that is not meant to be a beis tefillah. Therefore, individuals can certainly force the rest to build a shul.

I cannot resist telling over the following story from my experience as a shul rav. At one time, I was invited for an interview to a new shul that was located in an affluent area. I made a trip to meet the shul search committee, which was very interested in engaging me as their rav. They showed me the converted house that they were using as the shul, and mentioned that when they had renovated the building, they did so in a way that there would be an apartment in the building for the rav to use as his residence, since they did not have much money for a respectable salary. In their minds, since the rav could now save himself mortgage or rent money, that was a hefty part of what they intended for his salary.

I noted to them that in the position I had at the time, I could devote myself fully to rabbinic duties, something that would be quite impossible in the circumstances that they proposed. Their response was that although they understood my predicament, this was all they could afford, since most of their members were paying very huge mortgages for the zechus of living in this neighborhood. I made a mental note that none of them seemed to feel that the apartment part of the shul building that they were proposing was certainly nothing that any of them would consider suitable residential accommodations, nor would they consider the shul building representative of the high-class lifestyle that they had chosen for themselves.

How do we assess?

In earlier generations, the Jewish community had the ability to levy taxes and other fees on its membership. Virtually all Jewish communities had fairly strong authority over its membership because the community levied taxes and also was responsible for collectively paying taxes to the local monarch.

When assessing individuals for the construction of a local shul, do we charge according to people’s financial means, or does everyone share equally in the costs of the building?

The Rema rules that when raising the money for a shul, we take into consideration both the resources of the individuals and also who will be using the facility. Therefore, when assessing people for the building of a shul, the costs are allocated both according to the financial means and according to individuals. Thus, the wealthier members of a community will be paying a somewhat higher percentage of the costs.

Rent a shul

If the community does not have the resources to build or purchase a shul, they can force one another to put up enough money to rent a place (Mishnah Berurah 150:2)

Where not to rent

In a responsum in Igros Moshe (Shu”t Igros Moshe, Orach Chayim 3:25), Rav Moshe Feinstein was asked the following: There is no orthodox shul in town, and they have been davening in houses. Now, they want to rent space from a local conservative congregation. May they do so?

Rav Moshe prohibits this for two reasons:

1. This arrangement provides some credibility to the conservative congregation.

2. When people see the orthodox people entering or exiting the building of the conservative temple, they may think that these people are intending to pray in the conservative facility, which is prohibited. This involves the prohibition of maris ayin, doing something that may raise suspicion that one violated halacha.

Changing neighborhoods

Let us now address a different one of our opening questions: “In our town, almost everyone has moved away from the ‘old neighborhood,’ which has now, unfortunately, become a slum. The sprinkling of Jewish people still there can no longer maintain the shul. Are the people who used to live there still obligated to maintain the old shul building?”

This question was asked of Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 3:28).

In the case that he was asked, the shul had already opened a new facility in a nicer area and, until this point, the expenses of the old shul were being covered from the budget of the new shul. However, the members no longer saw any gain from doing so, since it was only a question of time until the old shul would no longer be at all functional. They would like to close down the old shul and sell the building. Are they permitted to?

The general rule is that a shul is considered communal public property and, as long as it functions as a shul, no one has the right to sell or modify its use. This is because the “owners” of the shul include anyone who might visit the area and want to find a minyan in which to daven. This is true, providing that there are still minyanim that meet in the shul on a regular basis — they cannot sell the building or close it down (Shu”t Igros Moshe, Orach Chayim III #29).

In the case at hand, Rav Moshe rules that those who have moved out of the neighborhood of the old shul have no responsibility to pay for the upkeep or repairs of the shul building that they are not using. The fact that the community has been treating the two shul buildings as one institution does not change this. Rav Moshe then mentions that, since the old shul is in a bad neighborhood, they may have a responsibility to remove the sifrei Torah from the shul, and perhaps even the siddurim, chumashim and other seforim, in order to protect them. He concludes that, since those who still daven in the old shul have no means of their own to keep the shul going, it is permitted to shutter the shul building and sell it. He also mentions that, if the bank will foreclose on the mortgage and re-possess the building, this does not require them to continue paying the mortgage. Nor does the bank’s decision as to what it will do with the shul property after the foreclosure require them to continue paying the mortgage.

Regarding those who still live in the old neighborhood, Rav Moshe rules that they should conduct the minyanim in a house where the sifrei Torah and the other seforim will be secure (Shu”t Igros Moshe, Orach Chayim III #28).

An interesting teshuvah from Rav Moshe relates to a shul building that had been originally planned to have a lower level to use as a social hall, with the shul intended to be on the upper floor. They began to use the social hall for davening until they built the shul on top, but the neighborhood began to change, and it became clear that they would have no need to complete the structure of the building. They never finished the building, and instead, directed the efforts and finances toward purchasing a new shul in a neighborhood to which people were moving. The old shul, or, more accurately, the “social hall” part of the old shul building, is at the stage where there is barely a minyan left, and the dwindling numbers imply that it is not going to be very long until there is no functioning minyan. The question is that they would like to sell the old building and use the money to complete the purchase of the new building. Furthermore, the mikveh in the town is now in a neighborhood to which women are hesitant to travel, so they want to use the funds from the old shul building to defray the construction costs of a necessary new mikveh.

Because of the specific circumstances involved, including that it is unlikely that people from the outside will drop in to daven in this minyan anymore, Rav Moshe rules that they are permitted to sell the building. A similar responsum from Rav Moshe was when they needed to create a shul in a neighborhood where there was a good chance that the Jewish community there would not last long. Rather than declare their building a shul, they called it a library and used it as their shul. Rav Moshe suggests that this was a good suggestion, since they knew from the outset that the days of the Jewish community were numbered (Shu”t Igros Moshe, Orach Chayim, 2:44).

We will continue this article next week…

Sewing on Shabbos

Question #1: Stuffing a Pillow

“My pillow is torn, and some of the filling has fallen out. May I restuff it on Shabbos?”

Question #2: Stitches

“Does stitching a wound closed involve a Torah prohibition on Shabbos?

Question #3: Miscellaneous

What do these questions have to do with one another?

Introduction

Among the 39 melachos of Shabbos, we find several sets of pairs, including tying and untying, writing and erasing, building and razing, and kindling and extinguishing. One of the sets is tofeir and korei’a, sewing and tearing. Of this pair, korei’a usually gets more coverage in practical halacha, because it involves many common questions such as opening packaging and tearing toilet paper. So that tofeir does not feel left out, the aim of this article is to show that there are many interesting details relevant to this melacha, and we will also discover some halachic surprises.

Tofeir 101

First, some introductory information about this melacha: One violates the av melacha either by sewing three stitches (meaning that the needle goes through the material three times) or by sewing two stitches and then tying the thread with a knot, so that the stitches remain (Rambam, Hilchos Shabbos 10:9). Without this last step, the stitches will not last, and, therefore, one does not violate the melacha min haTorah.

Non-permanent sewing

The rishonim dispute whether one violates a melacha min haTorah if one sews an item closed, but intends to open the stitches very shortly. Why would one do this? An example is that launderers sometimes stitched small items of clothing to larger ones, so that they will not get lost. This stitching will be removed as soon as the laundry is complete. Does this involve a Torah prohibition or is it prohibited only because of a rabbinic injunction?

I’ll provide a contemporary application, although it presumably does not affect most of our readers. To make sure that they remain firmly in place, boxing gloves are sewn closed around the wrists of the boxer. However, the boxer presumably wants to remove his gloves before his next meal or when he next needs to blow his nose. Thus, although the gloves are sewn very tightly onto his hands, the stitches will be undone very shortly, sometimes within a few minutes, if the boxer is either extremely successful or extremely unsuccessful. Does this sewing involve a Torah prohibition?

Most rishonim follow the more stringent approach, which is also the way the Shulchan Aruch rules (Orach Chayim 340:7). The Rema (Orach Chayim 317:3) quotes both approaches. Most later authorities understand that the Rema also concludes that the primary opinion is that sewing properly is prohibited min haTorah, even when one intends to rip out the stitches shortly (Tehillah Ledavid 340:6; Chazon Ish, hashmatos, Orach Chayim page 257; cf., however, Graz 317:7). So, boxers, beware, don’t sew your gloves on Shabbos! (Now, can you have a non-Jew do it? That is a topic for a different time!)

Tightening stitches

Here is a case that involves sewing min haTorah that most people do not realize is prohibited. On Shabbos, someone sees that some stitching on his garment is loose, so he pulls the stitching together. Halachically, this is considered an act of sewing the two pieces of the garment together, and, therefore, this seemingly innocent act involves a Torah prohibition of sewing (see Rashi, Shabbos 75a). This act will be prohibited min haTorah also on Yom Tov.

Embroidering

Embroidering cloth also violates the av melacha of tofeir (Nimla Tal, Meleches Tofeir note 25). Notwithstanding that, when embroidering, one does not necessarily stitch through the entire thickness of the cloth, there is still a Torah violation of tofeir (Yerushalmi, Shabbos 7:2, as explained by Pnei Moshe).

Pinning

A safety pin is usually inserted twice through cloth and then closed. Could this be considered sewing, since it is similar to making two stitches and then tying a knot, which is prohibited min haTorah?

Indeed, several prominent early acharonim banned the use of safety pins for precisely this reason (Shu”t Ginas Veradim, Orach Chayim 3:17, 19; Rabbi Akiva Eiger, notes to Magen Avraham 340:11; see also Korban Nesanel, Shabbos 7:50). However, many later acharonim permitted the use of pins on Shabbos, citing the following reasons:

(1) The closing performed by pinning is by nature temporary, and therefore not an act of tofeir (Chazon Ish, Orach Chayim #156, page 257, notes to Chapter 340; Az Nidberu 3:72).

(2) Tofeir is the act of making two or more items into one unit, which a pin does not do (Shu”t Igros Moshe, Orach Chayim 2:84). Notwithstanding that a pin attaches two items, there are many activities that attach two items, such as buttoning, zippering and snapping, all of which are permitted on Shabbos. So, there is no reason to assume that pinning two items together should be treated any more stringently than buttoning them together.

The position of the Mishnah Berurah on this question is unclear (see 308:46; 340:27). Rav Yaakov Kamenetsky understood that the Mishnah Berurah was also lenient about the use of pins on Shabbos (Emes Leya’akov, Orach Chayim 340).

Stuffing a pillow

Now that we have a basic introduction to the melacha, we are in a position to discuss the halachos relevant to our opening question: “My pillow is torn, and some of the filling has fallen out. May I restuff it on Shabbos?”

The answer to this question lies in understanding a small passage of Gemara (Shabbos 48a), which teaches the following:

Rav Chisda permitted returning stuffing into a pillow on Shabbos. Rav Chanan bar Chisda asked Rav Chisda how he could permit this, since an earlier, authoritative source (a beraisa) prohibited stuffing soft material into a pillow on either Yom Tov or Shabbos. Rav Chisda responded that it is prohibited to create a pillow for the first time by stuffing it, but it is permitted to restuff an old pillow.

Why can’t you stuff?

What is wrong with stuffing a pillow on Shabbos? The rishonim dispute why the beraisa prohibited stuffing a new pillow on Yom Tov or Shabbos. Rashi explains that the prohibition is because of the melacha of makeh bepatish, making a new item, since one is manufacturing a new pillow. The Mishnah Berurah (340:33) understands this act to be a Torah violation of the melacha.

However, the Rambam explains the Gemara quite differently, that the prohibition here is rabbinic, and that this is not a case of makeh bepatish. He understands that Chazal prohibited stuffing the pillow because of concern that someone might forget and sew the pillow closed (Hilchos Shabbos 22:23).

Both opinions agree that the prohibition is only to stuff a pillow for the first time, but that it is permitted to replace stuffing that fell out (Shulchan Aruch, Orach Chayim 340:8). Thus, we have an answer to the question: “My pillow is torn, and some of the filling has fallen out. May I restuff it on Shabbos?” The answer is that one may, assuming that one does not tighten the thread that connects the two sides.

Stitches

An interesting and contemporary question with a surprising answer is whether suturing a wound on Shabbos by a physician involves a de’Oraysa prohibition of sewing. In truth, most instances of stitching usually entail an element of pikuach nefesh, life-threatening emergency, because of the risk of infection. It seems to this author that this would permit stitching a wound on Shabbos, even if it involves an act that is a melacha min haTorah. However, there are at least three situations in which it will make a practical difference whether stitching a wound closed involves a Torah prohibition or not.

I. Extra stitches

One of the differences that might result is whether, because of asthetic, non-medical reasons, it is permitted to make more stitches than necessary. For example, when a plastic surgeon closes a wound, he makes the stitches very close together in order to avoid a serious-looking scar. To do so, he uses more stitches than necessary from a strictly medical basis. These additional stitches are not pikuach nefesh, since one can safely close the wound with fewer stitches.

II. Non-Jew

Whether one can have a Jew perform melacha that is pikuach nefesh when a non-Jew is available is a dispute among rishonim and early poskim. In our case, it would have the following application: Is one permitted to have a Jewish physician suture a wound closed on Shabbos when there is a non-Jewish physician available who can?

III. Late on Shabbos

If an injury was sustained on Shabbos afternoon not long before sunset, it is usually not pikuach nefesh to close the wound immediately; one can wait safely until Shabbos is over and then stitch the wound closed. Thus, if stitching the wound involves a Torah prohibition, one should wait until after Shabbos to suture it. However, if no violation is involved, one might be able to suture it immediately.

At this point, we will discuss whether stitching a wound is included under the melacha of tofeir on Shabbos. I have seen two reasons to contend that there is no melacha of tofeir involved in stitching a wound closed:

A. We do not find that sewing as a melacha applies to the bodies of people (Shemiras Shabbos Kehilchasah, 1979 edition, Chapter 35, note 62).

B. Tofeir is the combining of two items. Stitching skin does not make the two sides into one unit, but draws them close together so that they can heal into one unit (Nimla Tal, meleches tofeir #37). Thus, the stitching does not consist of a melacha min haTorah.

Tied in knots

However, either of these approaches may not change what the practical halacha is in these situations, because of a completely different problem. When stitching a wound closed, every stitch is followed by tying a knot, which is left permanently. Even when the stitch is removed, it is removed by cutting the thread and slipping out the stitching, not by untying the knot. Thus, the surgeon’s knot, which is definitely a specialist’s knot and is also knotted permanently, probably involves a melacha de’oraysah of kosheir, tying knots, a different one of the 39 melachos. Since this article is about tofeir and not about kosheir, I will leave further discussion on this point for a different time. Those who have the shaylah should get direction from their rav or posek.

We can now address the second of our opening questions: “Does stitching a wound closed involve a Torah prohibition on Shabbos?”

It would seem that stitching a wound closed on Shabbos involves a Torah prohibition of knotting.

Conclusion

We have learned many details about the melacha of sewing. Sewing three stitches violates the melacha min haTorah, as does sewing two stitches and then securing them so that they hold. Although using a safety pin may appear to be similar to sewing two stitches and securing them, many later authorities permit using pins to hold things together on Shabbos. We learned that stuffing a pillow for the first time is prohibited on Shabbos, and, according to some authorities, the reason for this prohibition is because we are concerned that someone may inadvertently sew the pillow closed. We also learned that there is an interesting halachic discussion whether stitching a wound closed involves a Torah prohibition on Shabbos.

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 melacha, which implies purpose and accomplishment. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Shemos 20:11).

Is This the Right Purim?

Question #1: Four Purims!

Could someone observe Purim four times in one year?

Question #2: Which Bar Mitzvah Day?

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

Question #3: Mistaken Parshah

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

Introduction:

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

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

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

Sanhedrin’s calendar

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

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

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

Rosh Chodesh Mussaf

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

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

Sanhedrin and the calendar printers

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

The contemporary calendar

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

In which Adar is Purim?

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

Basis of the dispute

What are the reasons behind the dispute?

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

Ein ma’avirin al hamitzvos

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

Is ein ma’avirin al hamitzvos a Torah requirement?

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

Other examples of ein ma’avirin al hamitzvos

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

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

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

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

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

Rabbi Shimon ben Gamliel

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

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

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

Four Purims?

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

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

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

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

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

How do we rule?

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

Two or four?

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

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

Which bar mitzvah day?

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

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

Mistaken parshah

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

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

In conclusion

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

Using a Thermos on Shabbos

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

Question #1: Using a Thermos

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

Question #2: Wrapping a Thermos

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

Introduction:

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

Shehiyah – leaving food on the fire

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

1. Covering the fire

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

2. Adding raw meat

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

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

3. Cooked before Shabbos

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

Chazarah – warming food on Shabbos

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

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

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

Hatmanah – insulating

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

Before Shabbos

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

Partial hatmanah before Shabbos

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

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

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

Lid is not covered

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

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

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

Shabbos sleeve

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

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

On Shabbos

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

Kli rishon and sheini

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

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

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

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

Yad soledes bo

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

Using a thermos

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

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

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

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

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

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

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

In conclusion

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

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this context, we can explain the vast halachic literature devoted to understanding these prohibitions, created by Chazal to protect the Jewish people from major sins. Seeing how much attention the poskim apply to understanding the laws of Shabbos thoroughly should encourage us to make sure we know these laws well, in all their details.

Tidbits of Interest

Some Aspects of the Halachos of Ribbis

Question #1: Small Thanks

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

Question #2: Doing a chesed

“Can I violate ribbis by doing a chesed?”

Question #3: Lending my Credit Card

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

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

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

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

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

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

Ribbis Without a Loan

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

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

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

Neighborly Loans

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

Ribbis Without any Benefit to the Lender

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

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

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

Borrowing Credit or Credit Cards

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

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

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

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

What is a heter iska?

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

Borrowing from Jewish-owned banks

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

Corporations

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

Hashkafah of Ribbis

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

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

Carrying in Public and the Use of an Eruv II

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

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

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

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

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

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

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

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

Some authorities add additional requirements.

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

At this point, let us continue our discussion.

600,000 People

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

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

Modern City

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

A Large Breach

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

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

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

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

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

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

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

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

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

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

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

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

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

Carrying in Public and the Use of an Eruv

Question #1:

“Is it a mitzvah to build an eruv?”

Question #2: Public or private ownership?

“Can I own a reshus harabim?”

Question #3:

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

Answer:

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

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

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

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

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

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

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

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

An Old Machlokes

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

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

Is It a Mitzvah?

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

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

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

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

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

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

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

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

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

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

Some authorities add additional requirements.

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

Can One “Enclose” a Reshus Harabim?

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

Please Close the Door!

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

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

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

Tzuras Hapesach

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

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

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

I will continue this article next week, bli neder.

Is Papaya a Tree?

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

Question #1: What bracha?

What bracha do I recite before I eat papaya?

Question #2: Orlah

Does the prohibition of orlah apply to papaya?

Question #3:

Are there any kashrus concerns germane to papain?

Introduction:

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

1. What bracha one recites on its fruit.

2. What bracha one recites on its fragrance.

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

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

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

What is a tree?

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

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

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

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

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

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

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

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

Is papaya a tree?

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

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

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

Commercial and halachic history of papaya

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

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

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

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

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

4. The papaya produces fruit within its first year.

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

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

Papaya outside Eretz Yisrael

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

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

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

Here is another difference in halacha between the two reasons.

Papain

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

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

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

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

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

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