Category: Eretz Yisroel

What Is an Otzar Beis Din?

veggies in binWhat do the words “Otzar Beis Din” mean? And, as an old friend of mine would ask, “Is an Otzar Beis Din good for the Jews or bad for the Jews?”

Literally, the words mean “a storehouse operated by Beis Din.” Why would Beis Din operate a warehouse? Is this some type of gmach or warehouse for impounded goods? Or a place where Beis Din stores people who are recalcitrant to follow its rulings? Although these might be good ideas, they have nothing to do with an Otzar Beis Din, which is a halachically approved method of distributing shmittah produce.

Before explaining what is an Otzar Beis Din, we must first review briefly the halachos of shmittah. These rules fall under two general categories:

(1) Laws of the Land

(2) Laws of the Fruit.

LAWS OF THE LAND

The Torah (VaYikra 25:1-7) teaches that every seventh year is shmittah, and we are prohibited from working the land of Eretz Yisroel. One may not plow, plant, prune, or harvest one’s grapevines or perform most other agricultural work. Furthermore, one may not allow one’s land to be worked during shmittah, even by a gentile (Gemara Avodah Zarah 15b). Since we follow the opinion that shmittah today is only miderabbanan, we have one leniency — one may perform activities whose purpose is to prevent loss (see Gemara Moed Katan 3b). For example, one may water plants and trees so that they do not die (Gemara Moed Katan 3b; Rambam, Hil. Shmittah 1:10; cf. Chazon Ish, Shvi’is 16:4, 21:14, who is more lenient).

The landowner may not treat what grows during shmittah as his own; rather he must allow others to enter his field or orchard and help themselves. If his field is fenced, the owner must leave the gate unlocked and should remove any impediments that discourage people from helping themselves to the produce (Rambam, Hil. Shmittah 4:24). They may take only as much as their family will eat, and the landowner himself may also take this amount (see Rambam, Hil. Shmittah 4:1). According to many poskim, the owner has a special mitzvah to declare that his produce is hefker, ownerless (Shu’t Igros Moshe, Yorah Deah 3:90 s.v. vihataam).

One must not pick shmittah produce the way one usually would, but with a shinuy, some variation from the usual (Sifra). One may not sell shmittah produce in a business manner (Rambam, Hil. Shmittah 6:1).

LAWS OF THE FRUIT

Shmittah produce is imbued with special sanctity, called kedushas shvi’is. The Torah provides specific rules that govern how one treats shmittah produce. These laws fall under the following categories:

THE WAY IT IS EATEN

The Torah teaches that shmittah produce may be eaten, but it may not be ruined. What types of “ruining” did the Torah prohibit? Foods that are usually only eaten cooked should not be eaten raw, and those that are not cooked should not be cooked. For example, one may not eat shmittah potatoes raw, nor cook shmittah cucumbers or oranges, even as part of a recipe. Similarly, one may not squeeze a fruit into juice, since this is considered “ruining” the fruit, although one may squeeze grapes, olives or lemons that have kedushas shvi’is since in these cases the fruit is not ruined, but improved, when squeezed. However, one may not squeeze apples or carrots, even if one usually does so, since one is ruining the fruit in the process of extracting its juice. Similarly, one may not add slices of shmittah orange to a recipe for a roast since the orange is ruined in the process even though the roast is improved (Shu’t Mishpat Kohen, #85).

If someone errantly squeezed a shmittah fruit, or cooked produce that should have been eaten raw, the finished product is permitted. It goes without saying that one must be careful not to actively destroy shmittah produce.

If one uses a shmittah product as an ingredient, one must treat everything that absorbs the taste of the shmittah product with the laws of kedushas shvi’is. Therefore, if someone used shmittah potatoes in a cholent, or shmittah onions or bay leaves in a soup, one must treat the entire cholent or soup with the laws of kedushas shvi’is.

One may not feed animals shmittah produce that is usually eaten by people. However, one may feed animals shmittah product that is typically used as feed, such as peels and seeds that people do not consume, or if they are no longer considered fit for human consumption.

COMMERCE WITH SHMITTAH PRODUCE

One must be careful not to sell shmittah produce in a way that implies that one is its true owner. For this reason, shmittah produce may not be sold by weight or measure (Mishnah Shvi’is 8:3), nor sold in a regular store (Yerushalmi Shvi’is 7:1). Instead, it should be distributed in a way that implies that this is a division of produce rather than a sale.

One may not export shmittah produce to chutz la’aretz (Mishnah Shvi’is 6:5). There is a halachic controversy whether one may ship esrogim to chutz la’aretz for people to fulfill the mitzvah (Beis Ridbaz 5:18; Igros Moshe, Orach Chayim 1:186).

SANCTIFIES ITS EXCHANGE

Shmittah produce has an unusual halacha in that it is tofes damav, transfers its special laws onto the money or other item that is exchanged for it (Sukkah 40b). For this reason, if one sells or trades shmittah produce, the money or other item received in exchange also has kedushas shmittah and must be treated with all the laws mentioned above. Even so, the original produce maintains its kedushas shvi’is.

TERUMOS AND MAASROS

An interesting leniency applies to shmittah produce. Since it is halachically ownerless, there is no requirement to separate terumos and maasros from shmittah produce. The poskim dispute whether one must separate terumos and maasros from produce taken from the field of an owner who did not observe shmittah and did not allow people to help themselves (Shu’t Avkas Rocheil #24; Shu’t Mabit #11).

SEFICHIM

The Torah permits eating produce that grew by itself without working the field during shmittah. However, Chazal felt it necessary to prohibit grains and most vegetables that happened to grow on their own during shmittah year or were planted in violation of the laws of shmittah. The reason for this was that, even in the days of Chazal, it was unfortunately common to find Jews who deceitfully ignored shmittah laws. One practice of enterprising, unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own! To discourage this illegal business, Chazal forbade even grains and vegetables that did grow on their own, a prohibition called sefichim, literally, “plants that sprouted.” Several exceptions were made, including that the produce of a non-Jew’s field is not prohibited as sefichim. Since a gentile is not obligated to observe shmittah, Chazal saw no reason to ban produce grown during shmittah in his field (Rambam, Hil. Shmittah 4:29).

OWNERLESS

Since all shmittah produce is halachically ownerless, every consumer has the halachic right to “help himself” to whatever his family might eat. (The poskim dispute whether one has the right to do this if the owner refuses entry. Even if it may be permitted, I do not recommend helping yourself to shmittah produce if the owner is not observing the laws of shmittah.) If my neighbor owns fruit trees, I have the right to enter his field and help myself. Similarly, if he has a vineyard, I may enter his vineyard and take as many grapes as my family can eat as table grapes or drink as wine. The field and tree are not ownerless, but the produce is.

WHAT IS AN OTZAR BEIS DIN?

With this introduction, we can now discuss what an Otzar Beis Din is. The owner of a vineyard is not required to produce wine for me, to allow me to harvest the grapes only for myself. If I do not have the equipment or expertise to press and process grapes into wine or olives into oil, I will be unable to utilize my rights to these fruits. Similarly, although I have a right to travel from Yerushalayim to pick citrus, mangos and bananas grown along the coast or in the northern part of the country, it is not that convenient for me to do so. How then can I possibly utilize the benefit of shmittah?

Enter the Otzar Beis Din to help out! Beis Din represents the consumer and hires people to gather the fruit, crush the grapes and olives into juice and oil, ferment the juice into wine, package the product, and then distribute it to the consumer. The Otzar Beis Din acts as the consumer’s agent and hires pickers, truckers, and other laborers; rents wine production equipment; purchases the bottles; produces shmittah fruits, wines and oils; and delivers them to a convenient distribution center near my house.

 

Obviously, the Otzar Beis Din cannot expect the pickers, truckers, and other laborers to work as unpaid volunteers, nor can they use the production equipment without paying rent. Similarly, the managers who coordinate this project are also entitled to a wage for their efforts. The Otzar Beis Din divides these costs among the consumers. However, no charge is made whatsoever for the fruit, since it is hefker, only for the labor and other costs involved. Thus, Otzar Beis Din products should cost less than regular retail prices for the same items.

 

Similarly, the farmer is required to allow anyone to enter his field and help himself to his crops. However, since it is inconvenient for a resident of Yerushalayim to travel to an orchard in the northern part of Israel or along its coast to pick oranges and bananas, the Otzar Beis Din picks and transports them to the consumer. All the other halachos of shmittah apply to this produce.

A “MODERN” OTZAR BEIS DIN

The Rabbonim and Beis Din of Yerushalayim organized the first modern Otzar Beis Din in 5670 (1910). Rav Tzvi Hirsch Cohen, a talmid chacham from Rechovot who owned vineyards and orchards, came to the Rabbonim of Yerushalayim requesting that they function as his Beis Din to distribute the wine and fruit from his orchards for the coming shmittah. The written contract, extant to this day, was signed by Rav Chayim Berlin, Rav of Yerushalayim at the time; Rav Yosef Chayim Zonnenfeld and Rav Pesach Frank, both of whom were later rabbonim of the city of Yerushalayim; and by two other prominent dayanim, Rav Yisroel Yaakov Yaavetz and Rav Moshe Nachum Wallenstein. To enable Yerushalayim residents to receive wine and fruit from Rav Cohen’s orchards, someone had to arrange to harvest the fruit, process the grapes into wine, and transport the products to Yerushalayim. Since Rav Cohen was the most qualified person to take care of these arrangements, the Beis Din appointed him to be their representative on behalf of the general public to harvest and process the produce and transport it to Yerushalayim. As an agent he was entitled to a wage for his work, as were the other employees who harvested, crushed, packaged, and transported the crop, but no one was entitled to any profits on the produce.

The Beis Din established several rules to maintain that the laws of shmittah were scrupulously kept in this arrangement, and to guarantee that Rav Cohen was paid as a manager and not as an owner of the product. For one thing, they predetermined the price that the consumer would pay for the wine, guaranteeing that it be significantly lower than its usual market price (Sefer Minchas Yerushalayim pg. 161).

Because of the laws governing the harvest and use of shmittah products, the Beis Din also insisted on the following rules:

1) The wine and fruits could be distributed only to people who would observe the shmittah sanctity of the products (see Tosefta Shvi’is 6:11).

2) The vineyards and orchards had to be available for any shmittah observant person to enter and harvest for his own needs (Sefer Minchas Yerushalayim pg. 181).

3) The products were not distributed through stores, but were divided as a communal division of bulk product. The products were not weighed or measured. Each individual who participated in dividing the shmittah produce paid Rav Cohen as Beis Din’s agent, for which the consumer was entitled to “shares” of wine and produce that were delivered in bulk containers without an exact weight.

4) The actual harvest of the product was performed by gentiles and in an atypical way (Katif Shvi’is pg. 125).

In his analysis of the procedure of an Otzar Beis Din, the Chazon Ish (Shvi’is 11:7 s.v. bemashekasavti) follows a more lenient approach than that of the Beis Din of Yerushalayim. He ruled that representatives of an Otzar Beis Din may harvest in the normal way and use Jewish labor. Thus the Otzar Beis Din of a modern farm following the Chazon Ish’s ruling allows Jewish staff to use combines to harvest and process the shmittah produce (Sefer HaShmittah pg. 21).

In addition, the Chazon Ish permitted weighing and measuring produce sold through Otzar Beis Din. In his opinion, the prohibition against weighing and measuring shmittah produce is only because this indicates that I am the owner of the produce. However, weighing and measuring Otzar Beis Din produce is to determine a fair division of costs involved in supplying the produce, and not to demonstrate ownership.

The 1910 Otzar Beis Din of Yerushalayim was stricter than this approach and did not allow any weighing or measuring of produce. Each participating household received “units” of wine and/or fruit which were deliberately approximate and not measured or weighed.

In a modern Otzar Beis Din, the grower plants everything before shmittah and is given extremely detailed instructions regarding what he may and may not do during shmittah (Katif Shvi’is pg. 126). The grower must allow any shmittah observant person to enter the field or orchard and help himself to the produce (Mishpetei Aretz pg. 103).

Usually, the grower has agreed in advance to a price for his produce which he will receive regardless of the quality of the produce. The grower must understand that this price is not a purchase of the produce, but compensation for his out-of-pocket expenses, including compensation for his own time.

“HETER OTZAR BEIS DIN”

Now is the time to approach our second question: “Is an Otzar Beis Din good or bad for the Jews?” The modern term “heter Otzar Beis Din” is used pejoratively. The purpose of an Otzar Beis Din is to service the consumer, not the producer, as I explained above. Unfortunately, unscrupulous individuals sometimes manipulate the rubric of Otzar Beis Din to allow a “business as usual” attitude and violate both the spirit and the halacha of shmittah. If the farmer is operating with a true Otzar Beis Din, he will allow a shmittah observant person to enter his field and help himself to the produce. (If he is concerned that the individual may damage the field or the trees, then he can make other arrangements.) However, if the field owner treats the produce as completely his own and charges accordingly, this contradicts the meaning of Otzar Beis Din. Cases like these are called heter Otzar Beis Din; meaning a permissibility based on an abuse of the concept of Otzar Beis Din. Because of these concerns, some hechsherim discourage the use of Otzar Beis Din. (See extensive discussion of this question in Minchas Yerushalayim Chapter 9.)

Thus in answer to our question whether Otzar Beis Din is good for the Jews or bad for the Jews, the answer is that although it is good for the Jews in theory, in practice Otzar Beis Din becomes bad for the Jews when it degenerates into a heter Otzar Beis Din. I certainly encourage use of a properly run Otzar Beis Din, which also includes that the produce must be treated with all the rules of kedushas shevi’is.

For the modern farmer, observing shmittah is true mesiras nefesh, since among many other concerns he also risks losing customers who have been purchasing his products for years. Of course, since a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone, a sincerely observant farmer obeys the Torah dictates knowing that Hashem attends to all his needs. Indeed, all recent shmittos have had numerous miracles rewarding observant farmers in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

 

The Heter Mechirah Controversy

carotsThe Heter Mechirah Controversy

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

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

Let me explain the halachic issues that this product entails.

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

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

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

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

WHAT IS HETER MECHIRAH?

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

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

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

HISTORY OF MODERN HETER MECHIRAH

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

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

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

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

THE BEGINNINGS OF A CONTROVERSY

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

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

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

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

What happened? Did the Jewish farmers observe the shmittah as cajoled by the Rabbonei Yerushalayim, or did they rely on heter mechirah? Although the very committed farmers observed shmittah according to the dictates of the Gedolei Yerushalayim, many of the more marginally observant farmers succumbed to the pressure and relied on heter mechirah. Apparently, many farmers were subjected to considerable financial and social pressure not to observe shmittah.

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

WHAT CHANGED?

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

Prior to the next shmittah in 5663 (1903) Rav Hertz re-asked his shaylah from the rabbonim of Yerushalayim, Rav Shmuel Salant, and the Aderes, Rav Eliyahu Dovid Rabinowitz Teumim (Rav Diskin had passed on in the meantime), since the original approval stipulated only the 1896 shmittah year. These rabbonim felt that the circumstances had not changed and that there was still a need for heter mechirah. Rav Hertz himself passed away before the heter mechirah was finalized, and his son-in-law, Rav Yosef HaLevi, apparently a talmid chacham of note, finalized the mechirah in his stead, following the instructions of the rabbonei Yerushalayim.

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

In addition, Rav Kook instituted a new aspect to heter mechirah. Prior to his time, the heter mechirah involved appointing an agent to sell the land for the years of shmittah. Rav Kook improvised a facet of the mechira enabling even a farmer who did not avail himself of the mechirah to be included since it would be in his best interest to have some heter when he works his field rather than totally desecrating the Holy Land in the holy year.

Although there is merit in protecting the farmer from his sin, a practical question now results that affects a consumer purchasing this farmer’s produce. If the farmer did not authorize the sale, does the produce indeed not have the sanctity of shmittah produce? For this latter reason, many individuals who might otherwise accept heter mechirah produce do not.

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

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

SELLING ERETZ YISROEL

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

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

Among contemporary poskim there is wide disagreement whether one may eat produce manufactured through heter mechirah; some contending that one may, others ruling that both the produce and the pots are non-kosher, whereas others accept that the pots should not be considered non-kosher although one should carefully avoid eating heter mechirah produce. Because of the halachic controversies involved, none of the major hechsherim in North America approve heter mechirah produce. Someone visiting Eretz Yisroel during shmittah who wants to maintain this standard should clarify in advance what he intends to do.

FRUITS VERSUS VEGETABLES

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

SEFICHIM

The Torah permitted the use of any produce that grew on its own without working the field during shmittah. Unfortunately though, even in the days of Chazal, it was common to find Jews who deceitfully ignored shmittah laws. One practice of enterprising, unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew on their own, a prohibition called sefichim, or plants that sprouted.

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

WHY NOT FRUIT?

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

“GUARDED PRODUCE”

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

The rishonim dispute whether this fruit is forbidden. Some contemporary poskim prohibit the use of heter mechirah fruit on the basis that since heter mechirah is invalid, this fruit is now considered “guarded,” and therefore forbidden. Other poskim permit the fruit because they rule that working an orchard or treating it as private property does not prohibit its fruit.

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

What would you advise?

Holding the Torah Upright

According to some rishonim, the mitzvah to raise the Torah (hagbahah) is mentioned in parshas Ki Savo.

Question #1: Holy Roller

“I was in a shul, and when they took out the sefer Torah, they opened it and carried it all around the shul, showing everyone with a yad where the beginning of the keri’ah is. I had never seen this before, and was wondering if this is a common practice. Is it mentioned in halachic sources, or does it simply manifest someone’s enthusiasm?”

Question #2: Reversing the Trend

Is there any halachic basis for the custom on Simchas Torah of reversing the sefer Torah so that the writing faces away from the magbiah?

Answer: Needing a Lift

The mitzvah of hagbahah is to raise the sefer Torah and show it, so that everyone in the shul can see the writing of the sefer Torah. The prevalent, but not exclusive, tradition among Ashkenazim is that this mitzvah is performed after each sefer Torah is read, whereas the exclusive practice among edot hamizrach (Jews of Middle Eastern and Sefardic descent) is that this lifting is performed prior to reading from the Torah. Among the edot hamizrach, some open the sefer Torah and lift it up immediately upon removing it from the Aron Kodesh, whereas others first bring the sefer Torah to the shulchan and then perform hagbahah, prior to calling up the kohen for the first aliyah (Ben Ish Chai II, Tolados #16). Some even perform hagbahah both before and after the reading (ibid.; Kaf Hachayim 134:17) As a matter of curiosity, it is interesting to mention that some Chassidim and Perushim in Eretz Yisrael observe the practice of the Sefardim and perform hagbahah before the Torah is read. When following this procedure, the magbiah does not sit down with the sefer Torah after he has completed his job, but places it down on the shulchan from which it is read.

As we will soon see, both customs – performing hagbahah before the reading and performing it after the reading – can be traced back to antiquity.

The earliest description of hagbahah

The earliest extant description of the procedure of hagbahas haTorah is found in Masechta Sofrim, as follows:

“One must raise the sefer Torah when reciting the words Shema Yisrael… and then raise it again upon reciting Echad Elokeinu Gadol Adoneinu Kadosh Shemo… Immediately, [the person performing the mitzvah] opens the sefer Torah to a width of three columns and lifts the sefer Torah — showing the writing to all the people standing to his right and his left. Then he moves the sefer Torah in a circular motion before him and behind him — because it is a mitzvah incumbent on all the men and women to see the text of the sefer Torah, to bow, and to say Vezos HaTorah asher sam Moshe lifnei Bnei Yisrael” (Masechta Sofrim 14:11-14).

What are the sources for the divergent customs?

As noted by the Beis Yosef and the Gra, the Masechta Sofrim describes performing hagbahah before keri’as haTorah. Nevertheless, the venerated practice of the Bnei Ashkenaz is to do hagbahah after we read the Torah (see Darkei Moshe 147:4; the practice is quoted at least as early as the Sefer HaItur, who lived over eight hundred years ago). This custom is based on the Gemara (Megillah 32a) that states, “After ten people read the Torah, the greatest of them should roll up the Torah,” which refers to hagbahah and implies that it is performed after the Torah has been read. Similarly, a different passage of Gemara (Sotah 39b) mentions that the person reading the haftarah should be careful not to begin until the rolling of the Torah is complete. This implies that the hagbahah and subsequent rolling closed of the Torah is performed immediately prior to the haftarah, and not before the Torah is read.

Two places in Shulchan Aruch

This difference in practice resulted in an anomalous situation. Because the Tur was an Ashkenazi, he included the laws of hagbahas haTorah after the reading of the Torah, in Chapter 147 of Orach Chayim. On the other hand, the Shulchan Aruch, who follows Sefardic practice, mentions hagbahas haTorah before the rules of the reading of the Torah in Chapter 134:2, yet he also discusses the laws of hagbahas HaTorah where the Tur placed the halachah in Chapter 147. As a result, the halachos of hagbahas haTorah are located in two different places in Shulchan Aruch, some in Chapter 134, others in Chapter 147, with the laws of keri’as haTorah sandwiched between.

Why do Ashkenazim do hagbahah afterwards?

Logically, it would seem that we should display the text of the sefer Torah prior to reading the Torah, so that people observe the section that is about to be read, as, indeed, the Sefardim do. Why do Ashkenazim delay displaying the words of the Torah until after the reading is concluded?

The authorities present the following basis for what seems to be an anomalous practice: In earlier generations, there were unlettered people who mistakenly assumed that it was more important to see the words of the Torah during the hagbahah than it was to hear the reading of the Torah. As a result, many of these people would leave shul immediately after the hagbahah and miss the reading. Therefore, the practice was introduced to postpone the hagbahah until after the reading was concluded — which now caused these people to stay in shul and hear the reading of the Torah (Shiyarei Keneses Hagedolah 134:2, quoted by Kaf Hachayim 134:17).

Are there any other ramifications to this dispute?

Indeed, there is another interesting ramification that results from the Ashkenazic practice of delaying the hagbahah until after the reading is concluded. Should one notice a pesul in the sefer Torah that does not require taking out another sefer Torah, but precludes reading from this sefer Torah until it is repaired, one should not recite the words Vezos HaTorah and Toras Hashem temimah when being magbiah the sefer Torah (Kaf Hachayim 134:17, quoting Shu’t Adnei Paz #13).

What is the proper way to do hagbahah?

A sefer Torah is written on sections of parchment that are stitched together. The person who is performing hagbahah should make sure that the stitching is in front of him before he lifts the Torah, so that if the sefer Torah tears from the stress of the lifting, the stitching, which is easy to repair, will tear and not, G-d forbid, the parchment itself (Megillah 32a, as explained by the Tur; see esp. Aruch HaShulchan 147:13; cf., however, how Rashi explains the Gemara).

“Reading” the Torah

When the sefer Torah is raised, each person in shul should try to actually read the letters of the sefer Torah. This causes a bright, spiritual light of the Torah to reach him (Arizal, quoted by Magen Avraham 134:3). Some have the practice of looking for a word in the sefer Torah that begins with the same letter as their name (Ben Ish Chai II, Tolados #16). In most Sefardic communities, someone points to the beginning of the day’s reading while the sefer Torah is held aloft for all to see. Some congregations consider this a great honor that is given to the rav or another scholar (Kaf Hachayim 134:13). This may be the origin of the custom that some people have of pointing at the sefer Torah during hagbahah (cf. Yalkut Me’am Lo’ez, Parshas Ki Savo, 27:26).

In order to make sure that everyone sees the text of the sefer Torah, some Sefardic congregations have the magbiah carry the open sefer Torah around the shul to display its holy words to every attendee (Kaf Hachayim 134:13).

In which direction is the Torah held?

The usual Ashkenazic practice is that the magbiah holds the sefer Torah with its writing facing him. Some congregations have the practice that, on Simchas Torah, the sefer Torah is lifted in the reverse way, so that the writing is away from the magbiah. Most people think that this is a “shtick” as part of the Simchas Torah celebration, but this is not halachically accurate.

The Bach (147) contends that the original approach was to hold the sefer Torah with the writing visible to the people — as we do on Simchas Torah. This is because when the magbiah lifts the sefer Torah the way we usually do, his body blocks the view, and for this reason, the Maharam and other great Torah leaders held the Torah with its text away from them when they performed hagbahah. Presumably, the reason this practice was abandoned is because it is much more difficult to do hagbahah this way, and there is concern that someone might, G-d forbid, drop the sefer Torah while doing it. Nevertheless, in places where the custom is to perform hagbahah this way on Simchas Torah, the reason is to show that on this joyous occasion we want to perform hagbahah in the optimal way.

The more the merrier!!

The above-quoted Masechta Sofrim requires that the magbiah open the sefer Torah three columns wide. The authorities dispute whether the magbiah may open the sefer Torah more than three columns. In other words, does Masechta Sofrim mean that one should open the sefer Torah exactly three columns, or does it mean that one should open it at least three columns, so that everyone can see the words of the Torah, but that someone may open it wider, should he choose? The Magen Avraham (134:3) suggests that one should open it exactly three columns, although he provides no reason why one should not open the sefer Torah more, whereas the Mishnah Berurah says that it depends on the strength of the magbiah — implying that if he can open it more, it is even better. It is possible that the Magen Avraham was concerned that opening the sefer Torah wider might cause people to show off their prowess and cause the important mitzvah of hagbahas haTorah to become a source of inappropriate pride — the exact opposite of the humility people should have when performing mitzvos.

Lift and roll!?

Most people who perform the mitzvah of hagbahah roll open the sefer Torah to the requisite width and then lift it, whereas others unroll it while they are lifting it. Which of these approaches is preferred?

The Shaar Efrayim discusses this issue, and implies that there is no preference between the two approaches, whereas the standard wording of Masechta Sofrim is that one should unroll the sefer Torah first.

Reciting Vezos HaTorah

When the sefer Torah is elevated, everyone should bow and recite the pasuk Vezos HaTorah asher sam Moshe lifnei Bnei Yisrael (Masechta Sofrim 14:14). Indeed, the Chida cites sources who hold that since Chazal mention saying Vezos HaTorah, it has the status of a davar shebekedushah and can be said even if one is in the middle of birchos keri’as shema (Kenesses Hagedolah, quoted by Birkei Yosef 134:4). Subsequently, the Chida wrote a lengthy responsum in which he concluded that reciting Vezos HaTorah does not have the status of a davar shebekedushah, and therefore should not be said in a place where it interrupts one’s davening (Shu’t Chayim She’al 1:68).

Vezos HaTorah should be said only while facing the words of the sefer Torah (Be’er Heiteiv 134:6, quoting several earlier sources). If one began reciting Vezos HaTorah while facing the writing of the sefer Torah, one may complete the pasuk after the text of the sefer Torah has been rotated away from one’s view (Shaar Efrayim).

In many siddurim, after the sentence Vezos HaTorah asher sam Moshe lifnei Bnei Yisrael, five words are added: Al pi Hashem beyad Moshe (Bamidbar 9:23), as if this is the continuation of the verse. Many halachic authorities question adding the words Al pi Hashem beyad Moshe, since these words are from a different passage of the Torah (Aruch Hashulchan 134:3). Others are concerned for a different reason, because these last five words are not an entire verse and they question the practice of reciting partial verses of the Torah. Indeed, many old siddurim do not quote this addition, and many halachic authorities contend that one should not recite it.

Who should be honored with hagbahah?

The Gemara (Megillah 32a) states “Ten people who read the Torah, the greatest of them should roll the Torah,” which refers to the mitzvah of hagbahah, since the magbiah rolls the Torah both prior to displaying it, and when he closes it, afterwards. The Baal HaItur quotes two opinions as to whom the “ten people” refers. Does it mean the attendees of the current minyan, and that the greatest of this group should be the one who is honored with the mitzvah of lifting and displaying the Torah? Or, does it means according the honor of lifting and displaying the Torah to the greatest of the ten people who were involved in that day’s reading (the seven who had aliyos, the maftir, the baal keriyah, and the person who recited the Targum after each pasuk was read, which was standard procedure at the time of the Gemara).

The halachic authorities rule according to the first approach, that one should honor the greatest person in the shul (Gra; Mishnah Berurah 147:6). They also refer to another practice, which was to auction off the mitzvah of hagbahah to the highest bidder (Tur; Shulchan Aruch). However, where the hagbahah is not auctioned, one should provide the honor to the greatest Torah scholar in attendance (Machatzis Hashekel). The prevalent practice of not necessarily offering hagbahah to the greatest scholar is in order to avoid any machlokes (Shaar Efrayim; Mishnah Berurah). Nevertheless, in a situation where no machlokes will develop, one should certainly accord the mitzvah to the greatest talmid chacham who can properly perform hagbahah. Whatever the situation may be, the gabbai is responsible to give hagbahah only to someone who is both knowledgeable and capable of performing the mitzvah properly.

The importance of performing hagbahah correctly

The Ramban, in his commentary on the verse, Cursed be he who does not uphold the words of this Torah (Devarim 27:26), explains that this curse includes someone who, when performing hagbahah, does not raise the sefer Torah in a way that everyone in the shul can see it properly. Apparently, there were places that did not perform the mitzvah of hagbahah at all out of concern that someone will be cursed for not performing hagbahah properly (Birkei Yosef, Shiyurei Brachah 134:2; Kaf Hachayim 134:15; Encyclopedia Talmudis, quoting Orchos Chayim). Although I certainly do not advocate eliminating the mitzvah of hagbahah, a person who knows that he cannot perform the mitzvah correctly should defer the honor, and the gabbai should offer the honor only to someone who fulfills the mitzvah properly.

May I Participate in the Census?

In honor of this week’s Haftarah, I present the following halachic discussion:

Question #1: Counting sheep

Why would someone count sheep when he is trying to stay awake?

Question #2: Counting from a list

Is it permitted to count people from names on a list?

Question #3: Ki Sissa or Hoshea?

The Gemara bases the prohibition to count the Jewish people from the opening words of this week’s Haftarah: And the number of the children of Israel shall be like the sand of the sea that cannot be measured and cannot be counted (Hoshea 2:1). Why does the Gemara attribute the prohibition to this source in Hoshea, when the prohibition is mentioned in the Torah in the beginning of Parshas Ki Sissa?

Answer: Analyzing the Sources in Chazal

The Mishnah teaches that to determine which kohen would be awarded the mitzvah of removing ashes from the mizbei’ach, a lottery procedure was used, whereby the kohanim interested in performing the mitzvah extended their fingers, which were then counted. The person in charge picked a number much greater than the assembled kohanim, and then counted fingers until they reached that number. The kohen on whom the number landed performed the mitzvah (Rashi ad loc.).

The Gemara asks why they didn’t simply count the kohanim themselves, and answers that it is prohibited to count Jews (Yoma 22b) — counting fingers is permitted, counting people is not (Rambam, Hilchos Temidim Umusafim 4:4). We are aware of one common application of this mitzvah: when counting people for a minyan, one counts words of a ten-word pasuk, rather than counting the people directly (Sefer HaItim #174; Kitzur Shulchan Aruch 15:3).

Here is another application: to determine how many places one needs to set at a table, one should not count heads, but one may count sets of legs (Shu’t Torah Lishmah #386).

The Gemara cites three Biblical sources for this prohibition:

1. When the nation of Ammon threatened the Jewish community of Yaveish-Gilad, Shaul gathered a large Jewish army (Shmuel I 11:8). According to one opinion in the Gemara, Shaul counted the members of his army by having each soldier throw a piece of broken pottery into a pile. Thus, even to fulfill a mitzvah, one may count Jews only in an indirect manner.

2. Before attacking Amalek, Shaul gathered the Jewish people and had each person take a sheep from Shaul’s herds. By counting the sheep, he knew how many soldiers he had (Shmuel I 15:4, see Rashi). Again, we see that he used an indirect method to count them.

3. And the number of the children of Israel shall be like the sand of the sea that cannot be measured and cannot be counted (Hoshea 2:1). Taking the verse not only as a blessing, but as a commandment, the Gemara derives a prohibition against counting the Jewish people.

Isn’t the Torah a Clearer Source?

The obvious question is, why does the Gemara not quote the pasuk in the Torah as a source for the prohibition?

When you will take the headcount of the children of Israel to determine their numbers, each man should give atonement for his life to Hashem when being counted. Thereby, no plague will result from the counting. This is what whoever is counted should give: a half shekel (Shemos 30:12 -13).

This pasuk implies that the only permitted way to count Jews is indirectly, by having each one donate a half-shekel and then counting the coins. This seems to be the source of Shaul’s knowing to count the Jews indirectly. It is indeed odd that the Gemara quotes Shaul’s practice as the source for the prohibition, rather than Shaul’s own source, the Torah itself!

Before answering this question, I want to analyze a different point that we see in the pasuk. The Torah says: each man should give atonement for his life to Hashem when being counted. Thereby, no plague will result from the counting. In the discussion of no other mitzvah does the Torah say, “fulfill this commandment so that no plague results.” Why, suddenly, does the Torah apply such an expression in this case?

Rabbeinu Bachya (ad loc.) explains that when we count an individual separately, it causes the heavenly tribunal to note all his deeds, and this may result in his being punished for his sins, which otherwise would not be punished now.

Others explain the concern in terms of ayin hora. Abarbanel, for example, explains that counting people by head causes ill to enter through their eyes and mouth into their body, whereas counting fingers does not cause the ayin hora to enter them. I leave to the reader to decide whether he is referring to physical or metaphysical harm.

Why the Prophets?

So, indeed, if we see from the Torah, itself, that counting Jews is prohibited and potentially very harmful, why did the Gemara base its comments on the deeds and words of the Prophets?

The commentaries present several approaches to answer this question. Here is a sample of some answers:

(1) The Gemara is proving that one may not count Jews, even for the purpose of performing a mitzvah, something that the Torah did not expressly say (Sfas Emes to Yoma ad loc.). The practices of Shaul and the verse in Hoshea make clear that one may not count Jews directly, even for the sake of a mitzvah.

(2) The Gemara needs to prove that we may not count even a small group of Jews, whereas the pasuk in Ki Sissa may be prohibiting only counting the entire people (Mizrachi; Sfas Emes).

(3) The verse in Ki Sissa could mean that one may count the Jews in a normal census, but that, afterwards, they all provide a half-shekel as an atonement to make sure that no one suffers (Makom Shmuel, quoted by Shu’t Tzitz Eliezer 7:3). This last approach suggests that the verse When you will take the headcount of the children of Israel according to their numbers be explained in the following manner: When you take a regular census of the children of Israel, each man should give atonement for his life to Hashem when counting them – after you conduct your census, each person should give a half-shekel, to make sure no harm results. Indeed, the census could cause harm, but that does not necessarily mean that the Torah prohibited it. However, the stories of Shaul and the verse in Hoshea prove that the Torah prohibited counting Jews directly, since Shaul counted the people by counting sheep, rather than conducting a census and then having them all donate a half-shekel as atonement.

(4) One can interpret the verse in Ki Sissa to mean that the generation of the Desert, who had worshipped the eigel hazahav, the Golden Calf, was at risk, and that counting them might cause a plague (Maharsha to Yoma ad loc.; see also Ohr Hachayim to Shemos 30:2). However, one cannot prove from Ki Sissa that there is an inherent prohibition or risk in counting Jews when they have not violated such a grievous sin. However, the stories of Shaul or the verse in Hoshea prove that one may not count Jews, even when they have not violated serious prohibitions.

Thus, we see several possible ways to interpret why the Gemara did not consider the Torah source as adequate proof to prohibit counting the kohanim in the Beis Hamikdash, but instead rallied proof from later sources. As we will see shortly, there are actual distinctions in practical halacha that result from these diverse explanations. But first, a different question:

Counting from a List

For the purposes of fulfilling a mitzvah, may one count Jews by listing their names and then counting their names? Is this considered counting people indirectly, since one is counting names and not people, or is this considered counting the people themselves?

Advertising Campaigns to Help the Needy

Creative advertising campaigns aimed at generating tzedakah funds did not originate with modern organizations, such as Oorah or Kupat Ha’ir. About 200 years ago, Rav Yisrael of Shklov, a major disciple of the Vilna Gaon and an author of several scholarly Torah works (including Taklin Chadtin on Shekalim and Pe’as Hashulchan on the agricultural mitzvos), was organizing a fundraising campaign for the Yishuv in Eretz Yisrael in which he wanted to link donors to individual beneficiaries by listing the needy of Eretz Yisrael by name. Rav Yisrael held that this fundraising approach =did not violate the prohibition of counting Jews[MSOffice1] , since counting names on a list is an indirect way of counting people, and, furthermore, it was for the sake of fulfilling a mitzvah. He held that this is similar to Shaul’s method of counting his soldiers.

However, the Chasam Sofer disagreed, contending that counting names on a list is considered counting people directly. Even though one is not looking at their faces, counting from a list is considered counting the person and is therefore halachically different from counting fingers, legs, half-shekels, lambs or pottery shards (see Koveitz Teshuvos Chasam Sofer #8; Shu’t Kesav Sofer, Yoreh Deah #106). We will see shortly that this dispute exists to this day.

The Census

Is the State of Israel permitted to conduct a census of its population? Does an individual violate the mitzvah by working as a census taker or by providing the census takers with information?

This question was hotly debated by halachic authorities, even when the pre-state Zionist organizations began counting the Jewish population, and continued with the censuses of the State of Israel. Those who permitted the census provided a variety of reasons to justify it, the primary one was that servicing the medical, educational, economic, and safety needs of a large population requires knowing how many people there are. These authorities accepted that this qualifies as a dvar mitzvah, and that counting by list, or via computer and machine calculation is considered indirect counting (Shu’t Mishpatei Uziel 4:2; Noam XV=).

On the other hand, several prominent poskim prohibited taking the census or participating in it (Shu’t Tzitz Eliezer 7:3). On the 27th of Iyar, 5732 (May 11, ’72), the Steipler Gaon released a letter stating the following:

In the coming days, census takers will be counting the Jewish people. One should be careful not to answer them at all, to inform them that it is forbidden to take a census, and that it is possible that this is a Torah violation, as explained in the Gemara Yoma 22, the Rambam in the fourth chapter of Temidim and Musafim, and the Ramban in Parshas Bamidbar. Furthermore, the Tosafos Rid in Yoma writes that it is prohibited to do so even indirectly, unless one is accomplishing a mitzvah. It is explained in Kesav Sofer… that it is prohibited to do so even through writing. Furthermore, taking a census involves the possibility of danger.

At the same time, the Beis Din of the Eidah Hachareidis also issued a letter prohibiting participating in the census or answering any questions from the census takers, and reiterated that they had banned this ten years before at the previous census.

Subsequent to his publishing a responsum in which he prohibited participating in the census, the Tzitz Eliezer (7:3) was asked whether someone wishing to determine the numbers of people who made aliyah may count how many people there are. He answered that for the purposes of a mitzvah, one may count indirectly. However, we should note that such figures are often counted simply for curiosity or publicity, which the Tzitz Eliezer prohibits (22:13).

In a more recent responsum dated Elul 24, 5755 (September 19, ’95), Rav Vozner (Shu’t Shevet Halevi 9:35) writes that the heter of taking a census because of divrei mitzvah applies only when the statistics are used solely for divrei mitzvah. However, he permits the census for a different reason — because the census counts the entire population of Israel and not specifically Jews. Furthermore, even though the census in Israel includes a breakdown into religious groups, since thousands of those who are listed by the government as Jewish are not, Rav Vozner does not consider this as counting Jews. He adds that since no one is counted by name or family and the data does not correlate at all to the number of Jews, he does have any halachic objection to participating in the census.

On the basis of Rav Vozner’s responsum, there certainly should be no difficulty in participating in the United States census, since this also counts people and not Jews.

Conclusion

As Rav Hirsch points out, the census conducted in this week’s parsha is performed in the desert, demonstrating that its purpose was not for economic or political reasons. Rather, just as last week’s parsha closed with the counting of the flocks by their shepherds, so too, this week’s parsha begins with counting G-d’s flock by its Shepherd. Every individual is counted as an independent member of that flock to demonstrate the importance of his individual commitment and contribution.

The Laws of Yoshon

Question #1:

“When I was young, I do not think I ever heard about a prohibition called chodosh, or that something was yoshon. Now I am constantly hearing these terms. Do we now have a new mitzvah?”

Question #2:

“We have decided to stay permanently in Eretz Yisrael, but we visit the United States a few times a year. Do we need to be concerned about chodosh when we visit?”

The Basics

Before addressing the issue underlying both questions, which is whether the prohibition of chodosh applies outside Eretz Yisrael, we must first study some essential details of the mitzvah. The Torah teaches in our parsha:

“Bread, sweet flour made from toasted kernels, or the toasted kernels themselves, may not be eaten until that very day – until you bring the offering to your G-d. This is a law that you must always observe, throughout your generations, in all your dwelling places” (Vayikra 23:14). “That very day” refers to the second day of Pesach, the day that the korban omer, the “offering” mentioned in the pasuk, is brought. (This is the same day that we begin counting the omer.)

The Mishnah (Menachos 70a) explains that this mitzvah applies only to the five species that we usually categorize as grain, which Rashi (Pesachim 35a) defines as wheat, barley, spelt, oats and rye. The Gemara (Menachos 70b) demonstrates that the laws of chodosh apply to the same varieties of grain that can become chometz.

What permits the new grain?

We should note that the Torah mentions two different factors that permit the new grain – it “may not be eaten until that very day – until you bring the offering to your G-d.” This seems to be a bit contradictory. What permits the new grain, the day itself or the offering that is brought that day?

The New Korban

The Gemara (Menachos 68a) concludes that it depends on whether a korban omer will be offered that particular year. Until the Beis Hamikdash was destroyed, a korban omer was brought annually, and offering this korban permitted the new grain, thereby fulfilling “may not be eaten… until you bring the offering to your G-d.” After the Beis Hamikdash was destroyed, it is the day that permits the new grain.

There is a further question: when it is the day that permits the new grain, is it the beginning of the day or its end?

The Gemara quotes a dispute about this fact, but concludes that even those who permit the new grain at the beginning of the day do so only min hatorah; but, they agree that miderabbanan, the new grain is not permitted until the day ends (Sukkah 41b).

“New” Grain versus “Old” Grain

This new grain is called chodosh, literally, new. Once Pesach passes, the grain is called yoshon, old, even though it may have been planted only a few days before. The promotion from chodosh to yoshon transpires automatically on the second day of Pesach – all the existing chodosh becomes yoshon grain on that day, even that which is still growing. The only requirement is that, by then, the grain must have already taken root. Thus, designating the grain as “old” does not mean that it is either wizened or rancid. Grain planted in the late winter or early spring often becomes permitted well before it has even completed growing. On the other hand, grain that took root after the second day of Pesach is categorized as “new” grain that may not be eaten until the second day of Pesach the following year.

How do we know that it is newly rooted?

Since most of us spend little time subterraneanly, how are we to know when the newly planted seeds decided to take root? This question is already debated by the tanna’im. The halachic authorities dispute whether we assume that the seeds take root three days after planting or not until fourteen days after planting. If we assume that they take root in only three days, then grain planted on the thirteenth of Nisan is permitted after the sixteenth, whereas that planted on the fourteenth, Erev Pesach, is forbidden. This is because the remaining part of the thirteenth day counts as the first day, and the fifteenth day of Nisan (the first day of Pesach) is the third day, and we therefore assume that the new grain rooted early enough to become permitted (Terumas Hadeshen #151; Pischei Teshuvah, Yoreh Deah 293:4, 5; Aruch Hashulchan).

According to those who conclude that it takes fourteen days to take root, this grain does not become permitted until the 16th day of Nisan of the next year. In addition, any grain planted on the third of Nisan or afterwards will not be permitted until the coming year, whereas that planted on the second of Nisan becomes permitted this year. We count the second of Nisan as the first day, which makes the fifteenth of Nisan the fourteenth day, and the grain has taken root early enough so that it is permitted after the sixteenth (Nekudos Hakesef; Dagul Meirevavah; Shu’t Noda Biyehudah 2:Orach Chayim:84).

What’s New in Chutz La’aretz?

Now that we understand some basic information about chodosh, we can discuss whether this mitzvah applies to grain growing outside Eretz Yisrael. Following the general rule that agricultural mitzvahs, mitzvos ha’teluyos ba’aretz, apply only in Eretz Yisrael, we should assume that this mitzvah does not apply to grain that grew in chutz la’aretz. Indeed, this is the position of the tanna Rabbi Yishmael (Kiddushin 37a). However, Rabbi Eliezer disagrees, contending that the mitzvah applies also in chutz la’aretz.

This dispute is based on differing interpretations of an unusual verse. When closing its instructions concerning the mitzvah of chodosh, the Torah concludes: “This is a law that you must always observe, throughout your generations, in all your dwelling places.” Why did the Torah add the last words, “in all your dwelling places”? Would we think that a mitzvah applies only in some dwellings and not in others?

The tanna’im mentioned above dispute how we are to understand these unusual words. Rabbi Eliezer explains that “in all your dwelling places” teaches that this prohibition, chodosh, is an exception to the rule of mitzvos ha’teluyos ba’aretz and applies to all your dwelling places – even those outside Eretz Yisrael. Thus, although we have a usual rule that agricultural mitzvos apply only in Eretz Yisrael, the Torah itself taught that chodosh is an exception and applies even in chutz la’aretz.

Rabbi Yishmael explains the words “in all your dwelling places” to mean that the mitzvah was not obligatory until the Jews had settled the Land of Israel, which was fourteen years after they crossed the Jordan River in the days of Yehoshua. As a result, he contends that chodosh indeed follows the general rule of agricultural mitzvos and applies only in Eretz Yisrael.

The New Planting

“When” a farmer plants his crops depends on many factors, including what variety or strain he is planting, climate and weather conditions, and, perhaps, his own personal schedule. At times in history, even non-Jewish religious observances were considerations, as we see from the following incident:

The Rosh reports that, in his day, whether most of the new grain was chodosh or yoshon depended on the timing of the gentiles’ religious season. Apparently, the gentiles in his time did not plant crops during a certain month. In some years, the gentiles planted well before Pesach, and in those years there was no chodosh concern, since the new grain became permitted while it was still growing. However, there were years in which the gentiles refrained from planting until much later, and in those years, the new grain was chodosh (Shu’t Rosh 2:1). We find, therefore, the rather anomalous situation in which the Rosh needed to know exactly when the gentiles observed their religious month to determine whether the grain was chodosh or yoshon.

What is New in Agriculture?

But one minute — the Rosh lived in Europe, first in Germany and then in Spain. Why was he concerned about chodosh? Should this not be an agricultural mitzvah that does not apply to produce grown outside of Eretz Yisrael? From the case above, we see that the Rosh ruled that chodosh is prohibited even in chutz la’aretz. The Rosh is not alone. Indeed, most, but not all, of the Rishonim and poskim conclude that chodosh applies to all grain regardless where it grows, since we see from the Gemara that chodosh was practiced in Bavel, even though it is outside Eretz Yisrael (Menachos 68b). However, notwithstanding the fact that the Rosh, the Tur and the Shulchan Aruch all prohibit chodosh grown in chutz la’aretz, the traditional approach among Ashkenazic Jewry was to permit the use of new grain. Why were they lenient, when most authorities rule like Rabbi Eliezer that chodosh is prohibited even outside Eretz Yisrael?

Later authorities suggest several reasons to permit consuming the new grain.

Doubly Doubtful

Many authorities permitted the new grain, because the new crop may have been planted early enough to be permitted, and, in addition, the possibility exists that the available grain is from a previous crop year, which is certainly permitted. This approach accepts that chodosh applies equally in chutz la’aretz as it does in Eretz Yisrael, but contends that when one is uncertain whether the grain available is chodosh or yoshon, one can rely that it is yoshon and consume it. Because of this double doubt, called a sefek sefeika, many major authorities permitted people to consume the obtainable grain (Rama, Yoreh Deah 293). However, we should note that this heter is dependent on current information, and these authorities agree that when one knows for certain that the grain being used is chodosh, one may not consume it.

The Rosh accepted this approach, and every year monitored the planting seasons so as to ascertain each year that this “double doubt” was accurate. In years that there was a chodosh problem, he refrained from eating the new grain – however, it is interesting to note that he was extremely careful not to point out his concerns to others. He further notes that his rebbe, the Maharam, followed the same practice. Thus, we see that some early gedolim were themselves strict about observing chodosh, but refrained from making this public knowledge, not wanting to cause what could prove to be a major burden for others. This practice was followed in the contemporary world by such great luminaries as Rav Yaakov Kaminetzsky, who was personally stringent on not eating chodosh, but was careful not to tell anyone, even family members, who followed the lenient approaches that I will soon share.

Another Heter

Other authorities permitted the chutz la’aretz grain, relying on the minority of early poskim who treat chodosh as a mitzvah that applies only in Eretz Yisrael (Taz; Aruch Hashulchan). This is based on a Gemara that states that when something has not been ruled definitively, under extenuating circumstances, one may rely on a minority opinion. (Niddah 9b).

This dispute then embroils one in a different issue: When the Gemara rules that under extenuating circumstances one may rely on a minority opinion, is this true only when dealing with a rabbinic prohibition, or may one do so even when dealing with a potential Torah prohibition? The Taz and Aruch Hashulchan, who permitted chodosh for this reason, conclude that one may follow a minority opinion even when dealing with a potential Torah prohibition. The Shach rejects this approach, and concludes that one must be stringent when one knows that the grain is chodosh (Nekudos Hakesef. See also his Pilpul Behanhagos Hora’ah, located after Yoreh Deah 242; cf. the Bach’s essay on the same topic, published in the back of the Tur Yoreh Deah, where he rules leniently on this issue.)

The Bach’s Heter

Another halachic basis to permit use of the new grain is that chodosh applies only to grain that grows in a field owned by a Jew, and not to grain grown in a field owned by a non-Jew. Since most fields are owned by gentiles, one can be lenient when one does not know the origin of the grain and assume that it was grown in a gentile’s field, and it is therefore exempt from chodosh laws. This last approach, often referred to simply as “the Bach’s heter,” is the basis upon which most Ashkenazic Jewry relied.

We may note that the Rosh, quoted above, did not accept the Bach’s heter, and that among the early authorities who reject this approach, we can count Tosafos (Kiddushin 37a end of s.v. kol), the Tur and the Shulchan Aruch. Similarly, the above-quoted responsum from the Rosh explicitly rejects this logic and contends that chodosh applies to grain grown in a gentile’s field.

Nevertheless, common custom accepted this as the main opinion, at least among Ashkenazim, and even many gedolei Yisrael followed this approach. The Bach notes that many of the greatest luminaries of early Ashkenazic Jewry, including Rav Shachna and the Maharshal, were lenient regarding chodosh use in their native Europe. He shares that, as a young man, he advanced his theory that chodosh does not apply in a field owned by a gentile to the greatest scholars of that generation, all of whom accepted it. The Derisha, who predated the Bach, also accepts this approach and quotes approvingly several early authorities who accept this position.

The Bach, himself, further contends that, although the Rosh in his responsum rejected this approach, the Rosh subsequently changed his mind: in his halachic code, which was written after his responsa (see Tur, Choshen Mishpat, end of Chapter (72, he omits mention that the prohibition of chodosh applies to gentile-grown grain.

There is also an original position of the Kenesses Yechezkel who concludes that, although chodosh applies both in chutz la’aretz and to grain of a gentile, it does not apply when both circumstances apply simultaneously (Shu’t Yoreh Deah #41). Thus, those residing in chutz la’aretz have a right to follow the accepted practice, as indeed many, if not most, of the gedolei Yisrael did. However, others, such as the Mishnah Berurah, ruled strictly about this issue (see also Beis Hillel, Yoreh Deah).

Until fairly recently, many rabbonim felt that those who are strict about the prohibition should observe the law discreetly. They contended that one should do so because they felt that observing chodosh has the status of chumrah, and the underlying principle when observing any chumrah is hatznei’ah leches – chumros should be observed modestly. (See Michtav Mei’eliyahu Volume 3, page 294.) Others feel that the practice of being lenient was based on an extenuating circumstance that is no longer valid, since yoshon is readily available in most large Jewish communities, and that, on the contrary, we should let people be aware how easy it is to observe the mitzvah.

North American Hechsherim

The assumption of virtually all hechsherim is that, unless mentioned otherwise, they rely on the halachic opinion of the Bach. Many decades ago, Rav Aharon Soloveichek pioneered his own personal hechsher that did not follow either the heter of the Bach or that of the Taz and Aruch Hashulchan. He further insisted that the yeshivos that he served as Rosh Yeshivah serve exclusively food that did not rely on these heterim. Today, there are a few other hechsherim that are following this approach, whereas the majority of hechsherim accept the heter of the Bach.

With this background, we can now address the first question that began our article. “When I was young, I do not think I ever heard about a prohibition called chodosh, or that something was yoshon. Now, I am constantly hearing the terms. Do we now have a new mitzvah?”

The answer is that the mitzvah is not new. When you were young, most halachic authorities felt either that one could rely on the opinion of the Bach, or felt that one should keep the topic quiet. Today, many feel that one may advertise the availability of a yoshon product.

In addition, there is an interesting agricultural background to this question. At one point in history, the flour commonly sold in the United States was from the previous year’s crop and always yoshon. Rav Yaakov Kaminetzky used to monitor the situation, and when the United States no longer followed this practice, he began to freeze flour so that he would have a supply during the winter and spring months during which it was an issue.

At this time of the year, there is no concern about chodosh in the United States since all the grain products now available took root before Pesach. Usually, the earliest chodosh products begin coming to market midsummer, and some products do not appear until the fall.

Visitors from Abroad

Let us now begin to answer the last question: “We have decided to stay permanently in Eretz Yisrael, but we visit the United States a few times a year. Do we need to be concerned about chodosh when we visit?”

As I mentioned above, someone who lives in chutz la’aretz has the halachic right not to be concerned about observing chodosh on grain that grows in chutz la’aretz. The question is whether someone who has moved to Eretz Yisrael and is now visiting chutz la’aretz has the same right.

Does the Halacha change depending on where you are?

Strange as this may seem, it does, indeed.

It is interesting to note that, when I was involved in kashrus supervision in the United States, the Israeli Chief Rabbinate’s position was not to accept the heter of the Bach. The Chief Rabbinate felt that the accepted custom in Israel is to be strict about this matter, and to treat any grain that follows the opinion of the Bach as not yet kosher.

Most, but not all, rabbonim I have asked agree that someone who considers himself to be living permanently in Eretz Yisrael should be stringent about the observance of yoshon. Their reasoning is that, since the accepted approach in Eretz Yisrael is to not accept this heter, that in Israel one does not have the right to be lenient and rely on this approach.

In Conclusion

In explaining the reason for this mitzvah, Rav Hirsch notes that one of Man’s greatest enemies is success, for, when he achieves it, he easily forgets his Creator and views himself as master of his own destiny. For this reason, the Torah created several mitzvos whose goal is to remind and discipline us to be ever aware of Hashem’s role our lives. Among these is the mitzvah of chodosh, which forbids us to consume the new grain until the korban omer has been offered, reminding us that this year’s crop is only a result of Hashem’s blessing (Horeb, Section 2 Chapter 42). Whether one follows the Bach’s approach to the chodosh laws or not, one should make note every time he sees a reference to yoshon and chodosh to recognize that success is our enemy, and that humility is our savior.

The Fruits of the Fourth Year

The second of this week’s two parshios, Kedoshim, mentions the mitzvah of neta reva’ie. Hence…

The Fruits of the Fourth Year

Question #1:

Rabbi Lamdan, a local talmid chacham, asks his Rav: “I have carefully studied this week’s parsha, which contains the Torah’s only mention of the mitzvah of neta reva’ie (fruit that grows during the fourth year of a tree’s existence). Yet, I cannot find a single allusion in the Torah to the laws of neta reva’ie as recorded by the halachic authorities! What information am I missing?”

Question #2:

Tikvah, always known for her intellectual honesty, inquires: “I feel like a hypocrite. Every day I pray for Moshiach to come and our return to the land of our fathers, and yet, I know little about the agricultural mitzvos of the Torah. If I truly hope for his imminent appearance, should I not be familiarizing myself with the laws that will apply when he arrives?”

Question #3:

When the Levy family moved into their spacious Waterbury home, they planted several fruit trees and grapevines, which are now producing luscious looking pears, apples and grapes. May they begin enjoying the fruit? Must they perform any special procedures before eating them?

What do these three questions have in common?

Understanding the basic laws of neta reva’ie and their source will enable us to answer both Rabbi Lamdan’s and the Levys’ questions, and at the same time will assist Tikvah in her search for truth.

First, the basics:

This week’s parsha proclaims:

“When you arrive in the Land, and you plant any tree for its fruit, you shall restrict its fruit; what is produced the first three years is restricted from you and may not be eaten. And in the fourth year, all its fruit shall be holy for praises to Hashem. Only in the fifth year may you eat its fruit – therefore, it will increase its produce for you, for I am Hashem, your G-d” (Vayikra 19:23-25).

The fruit produced in the first three years of a tree’s life is called orlah and is forbidden. The Torah refers to planting an eitz maachal, which I translated as a tree for its fruit, rather than a fruit tree. This is because Chazal understand that the prohibition of orlah applies only to a fruit tree planted for its fruit, and not to a fruit tree planted for a non-food purpose, such as for lumber or as a hedge (Orlah 1:1). This rule may affect the Levys, as I will later explain.

Although the Torah states only that orlah may not be eaten, the Torah shebe’al peh teaches that one may not benefit from it either. For this reason, one may not dye one’s skirt with orlah pomegranate peels, heat a house with orlah nutshells, or even feed orlah fruits and peels to animals. (In a different article, I discussed how one determines the end of the three prohibited crop years.) Although the mitzvah of orlah is obviously agricultural, it nevertheless applies to trees growing outside Eretz Yisrael.

KODESH HILLULIM – HOLY FOR PRAISES

Although the fourth year’s fruit is no longer orlah, it still has a special status. When the Torah discusses this produce, it states, “And in the fourth year, all its fruit shall be holy for praises (in Hebrew, kodesh hillulim) to Hashem.” As Rabbi Lamdan correctly noted, the Torah’s entire description of the status of these fruits is these two words. What does this obscure phrase kodesh hillulim mean? What type of sanctity does the fruit manifest, and how does this result in praise?

REDEMPTION IS PRAISE

The Gemara explains that the sanctity of the neta reva’ie fruit prohibits one from eating it until it has been redeemed (Berachos 35a). This act of redemption is itself praise to Hashem (Rashba ad loc.).

However, Rabbi Lamdan is not entirely satisfied with this answer. He knows that one redeems neta reva’ie only if one cannot eat the fruit in Yerushalayim, an aspect that the verse does not mention. Furthermore, the verse says nothing about the method of redemption, which, in fact, has many detailed halachos, as we will see.

We must research further.

MILITARY EXEMPTIONS

We find another reference that might shed some light on the nature of neta reva’ie. Concerning the individuals exempted from going to war, the Torah states: “Who is the man who planted a vineyard, but he did not yet redeem it? He shall return to his house” (Devarim 20:6). Here the Torah alludes to the redeeming of a vineyard, although it mentions no details about when and how this happens (see Rashba, Berachos 35a). Although this verse does not answer any of Rabbi Lamdan’s questions, it does imply a new factor, heretofore unmentioned: that the mitzvah of neta reva’ie applies only to grapes. (In reality, the Gemara [Berachos 35a] cites a dispute whether neta reva’ie indeed applies only to grapes or to all fruits, a matter that we will soon discuss.)

Thus, our search for the sources for this mitzvah is still unresolved.

In fact, much of the law concerning neta reva’ie originates elsewhere. A mesorah, an oral tradition from Sinai, compares its sanctity to that of a different mitzvah, maaser sheni (Kiddushin 54a). There the Torah states:

“And you shall eat the maaser of your grain, your wine, and your olive oil …before Hashem your G-d, in the place where He will choose to rest His name — so that you will thereby learn always to be in awe of Hashem. However, when you will be blessed by Hashem your G-d such that you will be unable to carry [the maaser sheni] as far as the place that Hashem chose, then you may exchange it for money that you subsequently take with you when you go to the place that Hashem chose. You may then exchange the money for cattle, sheep, wine or anything else you desire, and you shall eat there before Hashem your G-d, and in this way, you and your family will celebrate” (Devarim 14:23-26).

THE LAWS OF MAASER SHENI

The Torah shebe’al peh teaches that “the place where He will choose to rest His name” refers to the city of Yerushalayim. Thus, we are to transport maaser sheni to Yerushalayim. However, if this is difficult, one may redeem the produce for coins instead, and the special sanctity of the maaser sheni transfers to the money. One adds an additional 25% to the money and brings it to Yerushalayim, where he purchases with it food to be eaten within the confines of the city. This acquisition transfers the maaser sheni sanctity from the money onto the food.

Whether one transports one’s maaser sheni produce itself to Yerushalayim or exchanges it for money, the farmer remains with a large value that may be consumed only in Yerushalayim, a city bursting with sanctity and special, holy people. The beauty of this mitzvah is that it entices the farmer to ascend to the Holy City and be part of the spiritual growth attainable only there.

One can even look at the maaser sheni as “vacation fund” money that the Torah provides. Although the farmer may not be wealthy, when he arrives in Yerushalayim, he can eat and drink like a king!

WHAT MAY ONE PURCHASE?

The Torah specifies that once in Yerushalayim, one may exchange the maaser sheni money for cattle, sheep, wine or anything else you desire, which seems both wordy and unusual. The Torah shebe’al peh interprets this to mean that one may not purchase just any food with maaser sheni money, but only those that grow either from the ground or on it. Therefore, one may use maaser sheni money to purchase fruit, vegetables, breads, pastry, meat or poultry, but not fish, which do not grow on the ground, not salt or water, which do not grow; and not mushrooms, which are fungi and also do not grow from or on the ground.

RITUAL PURITY — TAHARAH

Both the original maaser sheni and food purchased with its redemption money are holy and may be eaten only within the walls of the old Yerushalayim and only when both the food and the individual eating it are tahor, ritually pure.

OH MY JERUSALEM

By the way, the area of today’s Old City of Jerusalem is encompassed by walls constructed by the Ottoman Turks.  The Turkish walls surround areas that probably were not part of the city at the times of Tanach and Chazal, and therefore those areas do not have the halachic sanctity of the Holy City; at the same time, without any question, large sections that do have the sanctity of the Holy City are outside these walls.

CONTEMPORARY MAASER SHENI

The fact that one must be tahor to consume maaser sheni changes the way one observes this mitzvah today, when achieving this status is virtually unattainable. Since we have no ashes of a parah adumah with which to purify ourselves of certain types of tumah, we cannot eat the produce of maaser sheni, nor the food purchased with the redeeming coins, since they have the same sanctity. Because of this problem, it is pointless to purchase food with these coins, and instead, they remain unused and are eventually destroyed. To avoid excessive loss, one may redeem large quantities of maaser sheni onto a very small value within a coin: this is the way we redeem maaser sheni today. Of course, we are missing the main spiritual gain of consuming the foods in Yerushalayim, but this is one of the many reasons for which we mourn the destruction of the Beis HaMikdash and pray daily for its restoration.

THE LAWS OF NETA REVA’IE

We now return to the laws of neta reva’ie. Although the Torah alludes only to the redemption of neta reva’ie fruits, the Torah shebe’al peh teaches us to apply the laws of maaser sheni to neta reva’ie, where the redemption services the grower unable to transport his produce to Yerushalayim. Similarly, one may eat neta reva’ie itself only in Yerushalayim when tahor. Someone who cannot transport it there may redeem it by transferring its kedusha, holiness, to coins. When doing this, he add 25% to the value, brings the money to Yerushalayim instead of the fruit, and there purchases food to eat in the Holy City. Just as redeeming maaser sheni still allows the grower to reap the spiritual benefits of his produce, so, too, redeeming reva’ie enables the grower to benefit from the Yerushalayim experience.

At this point, we can answer Rabbi Lamdan’s original inquiry. The extensive literature of the Mishnah, Gemara and halachic authorities concerning neta reva’ie assumes that the laws of neta reva’ie derive from those of maaser sheni, and that the purpose of the redemption of neta reva’ie produce is to allow someone with a bountiful reva’ie crop to benefit from the spiritual gains of his produce.

And just as we cannot make ourselves tahor today, and therefore we cannot eat the produce of maaser sheni, we can also not consume the neta reva’ie or the food purchased with its redemption coins, since they have the same sanctity. Because of this problem and to avoid the loss that would result, we may transfer the kedusha of large quantities of neta reva’ie to a coin of small value. Again, we are missing the main spiritual gain of consuming the foods in Yerushalayim, and for this, too, we mourn the destruction of the Beis HaMikdash.

REVA’IE IN WATERBURY?

Having answered Rabbi Lamdan’s questions and also having addressed Tikvah’s concern, we will now tackle the questions raised by the Levys’ trees and vines. Does someone living outside Eretz Yisrael also merit fulfilling the mitzvah of neta reva’ie on his fruit? The Rishonim debate whether this mitzvah applies in chutz la’aretz, just as the mitzvah of orlah does, or if it is treated the same as most agricultural mitzvos that are exempt in chutz la’aretz. There are three basic approaches to this issue:

1. Some authorities contend that, since neta reva’ie is an agricultural mitzvah, it does not apply outside Eretz Yisrael, which is the usual, but not absolute, rule regarding these mitzvos (see Rambam, Hilchos Maachalos Asuros 10:16).  Although orlah is an exception and applies even in chutz la’aretz because of a special halacha leMoshe miSinai, an oral tradition that Moshe received at Mount Sinai, reva’ie applies only in Eretz Yisrael, since it was not specifically included in the halacha leMoshe miSinai. Those who rule this way conclude that the Torah did not extend the spiritual benefits of these mitzvos to include produce grown outside Hashem’s palace. Therefore, the Levys’ trees are exempt from the mitzvah of neta reva’ie and all fruit produced after the orlah years are available for consumption, without any redemption procedure.

2. On the opposite side, there are authorities who contend that the halacha leMoshe miSinai that requires that we observe orlah in chutz la’aretz also requires observing the mitzvah of reva’ie; Hashem wanted us to benefit from the mitzvah of neta reva’ie, even outside the Holy Land. Therefore, the fruit that grows on the Levys’ trees and vines in Waterbury during the fourth year have the sanctity of neta reva’ie (see Rabbeinu Yonah, Berachos, Chapter 6). This is the opinion that the Shulchan Aruch follows (Yoreh Deah 294:7). (For reasons beyond the scope of this article, reva’ie applies only when we are certain that the fruit grew in the fourth year, but not when we are uncertain whether it grew in the fourth year or the fifth.)

ALL FRUIT OR ONLY GRAPES

3. There is a third opinion that contends that reva’ie applies to grapes that grow in chutz la’aretz but not to other fruits (Tosafos, Kiddushin 2b s.v. esrog and Berachos 35a s.v. ulemaan). This is based on a dispute as to whether the mitzvah of reva’ie in Eretz Yisrael applies to all fruit trees, or only to grapes (Berachos 35a). Many authorities conclude that we rule leniently regarding produce grown in chutz la’aretz and therefore absolve all fruits from neta reva’ie, except for grapes (Rama and Gra to Yoreh Deah 294:7).

Thus, according to Sefardic practice of following the Shulchan Aruch, the pears, apples and grapes of the fourth year growing in Waterbury, have the status of reva’ie and require redemption. According to the Ashkenazic practice, the grapes require redemption, but not the pears or apples.

CONCLUSION

Note that the Torah states: “And in the fourth year, all its fruit shall be holy for praises to Hashem. Only in the fifth year may you eat its fruit – therefore, it will increase its produce for you, for I am Hashem your G-d” (Vayikra 19:23- 25). We see that Hashem Himself promises that He will reward those who observe the laws of the first four years with tremendous increase in the tree’s produce in future years. May we soon see the day when we can bring our reva’ie and eat it while tahor within the rebuilt walls of Yerushalayim!

Papaya and the Beginning of Elul

clip_image002Whether 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 (ba’al tashchis).

5. There are several agricultural halachos concerning kilayim, shmittah, and ma’aser, all of which are relevant only in Eretz Yisroel.

 

What does this have anything to do with the impending beginning of Elul and the papaya tree? Stay tuned and find out.

The Gemara mentions that a tree that takes root thirty days before Rosh Hashanah is halachically considered to complete its first year and begin its second year on Rosh Hashanah. This has major ramifications for determining which fruit are no longer prohibited as orlah, but more so, can actually be a factor as to whether certain crops are permitted or not. As we will soon see, the question germane to papaya is because most papaya fruit often grows before the tree is three years old, which may create a problem whether one may eat the papaya fruit. As we will soon see, although this problem is more serious in Eretz Yisroel, the question also exists germane to papaya that grows elsewhere.

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?

(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) Many poskim contend that the prohibition of orlah does not apply to a tree that produces fruit for three years or less.

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

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 there 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 with 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 Shevat 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 passionfruit, called pasiflora in 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 Yisroel and that growing in chutz la’aretz. Whereas the prohibition of orlah exists both in Eretz Yisroel and in chutz la’aretz, questionable orlah fruit is prohibited if it grew in Eretz Yisroel 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 meSinai that prohibits orlah fruit outside of Eretz Yisroel, but only when we are certain that the fruit is orlah. When we are uncertain whether the fruit is orlah, the halacha leMoshe meSinai permits this fruit.

Based on the above, one should be able to permit papaya growing outside Eretz Yisroel 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 were 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 plant 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 meSinai that safek orlah is permitted. Therefore, even if we consider papaya a tree, the fruit grown outside Eretz Yisroel 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 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.

Could the Fruit on My Tree Be Arlah?

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Question:

Recently, our school had several fruit trees planted for decorative and educational purposes. Someone told us that we must carefully collect the fallen fruits and bury them to make sure that no one eats them. Is there really an arlah prohibition in chutz la’aretz, and is it possible that these fully grown trees are producing arlah fruits? If indeed we need to be concerned about arlah, do we also need to redeem the fruits of the tree in the fourth year?

Before we can answer these questions, we need to discuss the following topics:

I. Is there a mitzvah of arlah in chutz la’aretz?

II. Can a fully-grown tree possibly have a mitzvah of arlah? I thought arlah only applies to the first three years of a tree’s growth!

III. Does arlah apply to an ornamental tree?

IV. Does the mitzvah of reva’ie apply in chutz la’aretz?

I. ARLAH

Introduction: The Torah (VaYikra 19:23) prohibits eating or benefiting from fruit grown on a tree during its first three years. Those fruits are called arlah and the prohibition of the Torah applies whether the tree was planted by a Jew or a gentile, and whether it grew in Eretz Yisroel or in chutz la’Aretz, although many leniencies apply to trees growing in chutz la’Aretz that do not apply to those growing in Eretz Yisroel (Mishnah Arlah 3:9). Arlah fruit must be burnt to guarantee that no one benefits from them (Mishnah Temurah 33b); in addition, Rav Shlomoh Zalman Auerbach, zt”l ruled that one must remove arlah fruits as soon as they begin to grow to prevent someone from mistakenly eating them (heard orally from Rabbi Shmuel Silinsky).

REVA’IE

The Torah (VaYikra 19:24) teaches that the fruit a tree produces the year following its arlah years has a unique halachic status called reva’ie. One may eat this fruit only within the area surrounded by the original city walls of Yerushalayim and only if one is tahor, a status that is virtually unattainable today as we have no ashes of a parah adumah. However, the Torah permitted us to redeem reva’ie by transferring its sanctity onto coins which must be treated with special sanctity. After performing this redemption, the reva’ie fruit lose all special reva’ie laws and one may eat them wherever one chooses to and even if one is tamei. We will discuss later whether reva’ie applies outside Eretz Yisroel.

Why does Arlah apply in chutz la’aretz? Is it not an agricultural mitzvah that should not apply outside Eretz Yisroel (Mishnah Kiddushin 36b)?

The Gemara (Kiddushin 39a; Mishnah Arlah 3:9) teaches that arlah in chutz la’aretz has a special status. Although it is true that agricultural mitzvos usually apply only in Eretz Yisroel, a special halacha leMoshe miSinai teaches that the mitzvah of arlah applies in chutz la’aretz. (A halacha leMoshe miSinai is a law Hashem taught Moshe Rabbeinu at Har Sinai that has no source in the written Torah.) However, this particular halacha leMoshe miSinai came with an intriguing leniency.

QUESTIONABLE ARLAH

The usual rule is that in a case of doubt whether or not something is prohibited, one must rule stringently and prohibit the item a Torah law is involved (Gemara Avodah Zarah 7a). Even though arlah in chutz la’aretz has the status of a Torah prohibition, the halacha leMoshe miSinai teaches that any doubt concerning whether a chutz la’aretz fruit is arlah may be treated with a unique leniency. In Eretz Yisroel, one may not purchase a fruit in a market without first determining whether there is a significant possibility that the fruit is arlah. In the case of arlah from chutz la’aretz, however, one is not required to research if the fruit is arlah. Even more, the fruit is prohibited only if one knows for certain that it is arlah and if one is uncertain it is permitted. Thus, doubtful arlah grown in chutz la’aretz is permitted even though definite arlah is prohibited min haTorah.

This leads us to our next discussion point:

FULLY GROWN ARLAH TREES

II. Can a mature tree possibly have a mitzvah of arlah? I thought arlah only applies to the first three years of a tree’s growth!

Today someone living in chutz la’aretz may actually be the proud owner of a mature tree whose fruit is prohibited min haTorah because of arlah. How can this happen?

The Mishnah (Arlah 1:3) teaches that if a tree was uprooted and replanted, its arlah count sometimes begins anew. If the uprooted tree retained enough of its soil to survive, the old arlah count remains and if the tree was past its three arlah years its fruit are permitted. But if the tree’s soil was removed from its roots during the uprooting, it is considered as planted anew and its arlah count starts all over. Thus halacha can consider a fully mature tree that has been transplanted as newly planted.

What determines whether the tree is halachically new or old? The criterion is whether the tree can survive with the soil still attached to its roots. However, the Mishnah omits one important detail: for how long must the tree be able to survive with that soil on its roots? Obviously, if the tree continues to grow for a long time, the small amount of soil on its roots will be insufficient. How much soil must the tree have on its roots to maintain its post-arlah status?

The Rishonim dispute this question, some contending that soil for fourteen days is sufficient, while others require enough soil for considerably longer (see Beis Yosef, Yoreh Deah 394; Chazon Ish, Arlah 2:10-12). Since we rule leniently on arlah questions in chutz la’aretz, one may be lenient and permit a tree that has only enough soil to live for fourteen days. In Eretz Yisroel, many poskim rule that one must follow the stricter opinion.

It is important to note that, according to all opinions, if one replanted a tree with little or no soil attached, the tree is halachically considered as newly planted and the next three years of fruit are arlah. The Torah not only prohibits eating these fruits, but even benefiting from them – or even giving them as a present to a non-Jewish neighbor.

HOW COMMON IS THIS?

How often is a mature, replanted tree considered new for arlah purposes?

According to the expert I contacted:

“In most parts of the United States, fruit trees sold in late winter and very early spring are usually bare root, meaning no soil around the roots but rather some material, like wood shavings, just to keep them moist. Unsold trees are then potted into bucket-size pots or bags of soil which begin to grow as spring progresses and the tree leafs out. The nurseryman is being perfectly honest when he says it is a three-year-old tree — except that for arlah count it is in year one because it was replanted without soil. This problem is very common with many varieties of fruit trees that lose their leaves in autumn such as pears, plums, peaches, cherries, apricots, and nuts.”

The same expert pointed out that there can be other arlah problems in chutz la’aretz, such as trees grafted onto a root stock that was cut down to less than a tefach above the ground. This case, which is apparently very common, is halachically arlah miderabbanan (see Gemara Sotah 43b). This would apply even with a potted tree that never lost its soil. The arlah count begins over from when the tree is replanted.

WHAT DO I ASK THE GARDENER?

When purchasing a fruit tree from a nursery or gardener, what questions should one ask?

According to the horticultural- halachic expert I asked, the most common, and unfortunately little known, problem is not arlah but kilayim, mixing of species, or more specifically, harkavas ilan, grafting of a fruit tree onto the stock of a different species –which also applies outside of Eretz Yisroel.

In regards to arlah, both of the previously mentioned problems could, and frequently do, happen: The tree may be replanted into your yard as bare-root, or it may be grafted onto a short stock that halachically qualifies the fruit that now grow as arlah.

Other arlah problems may occur. Here is a common case: Someone purchased a tree from a nursery where the soil was still attached to its root; the tree’s root ball was wrapped in burlap and tied. (This type of tree is called “balled and burlaped” in the nursery industry.) When purchasing such a tree, one should try to verify when the tree was planted, and also whether the soil ball fell off while replanting the tree, which is a common occurrence. All of these affect whether the fruits of the tree are arlah, and for how many years.

I will share with you one more case that some authorities consider an arlah problem. Some people grow fruit trees in pots and move them outdoors for the summer and back indoors for the winter. Some opinions contend that moving this tree outdoors is considered replanting it, particularly if the pot is placed on earth, and means that the fruit of this tree is always arlah!

III. ARLAH ON ORNAMENTAL TREES

If one plants a tree with no intention of using its fruit, is the fruit prohibited because of arlah?

The Mishnah (Arlah 1:1) rules that fruit growing on a tree planted as a barrier or hedge, for lumber, or for firewood are not arlah. The reason for this leniency is that the Torah states that the mitzvah of arlah applies “when you plant a tree for food” (VaYikra 19:23), and these trees are not meant for fruit. Perhaps the planting of our ornamental fruit trees is included in this leniency and their fruit is not arlah?

Unfortunately, this is not true. The Yerushalmi (Arlah 1:1) rules that this leniency applies only to trees planted in a way that makes it clear to an observer that they are not planted for their fruit. Examples of this are trees planted too close together for the proper growth of their fruit, or trees pruned in a way that the lumber will develop at the expense of the fruit. However, people usually do not grow ornamental trees in a way that demonstrates that they have no interest in the fruit.

Most poskim rule like this Yerushalmi (Rosh, Hilchos Arlah 1:2; Tur Yoreh Deah 294) including the Shulchan Aruch (Yoreh Deah 294:23). (Note that the Rambam [Maaser Sheni 10:2] does not quote this Yerushalmi as normative halacha. Those interested in researching why the Rambam seems to ignore the Yerushalmi should research the explanation of the Rashas to the Yerushalmi and the comments of the Beis Yosef on the above-quoted Tur.)

Many years ago when I was a rav in Baltimore, someone asked me a shaylah that is very germane to this discussion. He had planted a hopvine and asked me whether there was an arlah or reva’ie prohibition involved in this plant. Knowing only that hops are used as an ingredient in beer, I asked him what a “hopvine” is and why would one plant it? He answered that it is an ivy runner that climbs the walls of a building. He had planted the vine primarily because he liked the ivy cover for his house, but also because he was interested in brewing his own beer using organically grown hops. At that time I was under the impression that there was certainly an arlah problem since he also planned to harvest the fruit. But what would happen if if the planter had no interest in the fruit and was simply interested in the vine’s aesthetics? Would that absolve the vines from the mitzvah of arlah? I leave it to the reader to ponder this issue.

I subsequently discovered that hops are not an arlah concern for a totally different reason: Although hops do not need to be planted annually, halachically they are not considered trees since their shoots die off in the winter and re-grow each year. Such a plant is called a herbaceous perennial plant, not a tree, and is not subject to the halachos of arlah. Nevertheless, the concept of planting a tree not for its fruit is very halachically germane.

IV. DOES REVA’IE APPLY TO FRUITS GROWN OUTSIDE ERETZ YISROEL?

Does the mitzvah of reva’ie apply in chutz la’aretz as the mitzvah of arlah does, or is it treated like other agricultural mitzvos that apply only in Eretz Yisroel? The Rishonim debate this question and its answer depends on two other interesting disputes. The first, mentioned in the Gemara (Brachos 35a), is whether the mitzvah of reva’ie applies only to grapes or to all fruits. According to some opinions, the mitzvah of reva’ie applies only to grapes (see Tosafos, Kiddushin 2b s.v. esrog); according to a second opinion, it applies to all fruits (see Gemara Brachos 35a); and according to a third approach, the mitzvah applies min haTorah only to grapes, but it applies midirabbanan to all fruits (see Tosafos, Kiddushin 2b s.v. esrog).

A second dispute is whether the mitzvah of reva’ie applies outside the land of Israel, like the mitzvah of arlah, or whether it follows the general rule of most other agricultural mitzvos and applies only in Eretz Yisroel (Tosafos, Kiddushin 2b s.v. esrog and Brachos 35a s.v. ulimaan; Gra, Yoreh Deah 294:28). The logical question here is whether reva’ie is an extension of the mitzvah of arlah, in which case the halacha leMoshe miSinai that arlah applies in chutz la’aretz extends to reva’ie. On the other hand, it may be that reva’ie is a separate legal concept totally unrelated to the mitzvah of arlah. If the latter is true, reva’ie should be treated like any other agricultural mitzvah and would not apply in chutz la’aretz.

We should bear in mind that even if we conclude that reva’ie applies in chutz la’aretz, it applies only when these fruits are definitely obligated in reva’ie. If the fruit might be from a later year, one may eat the fruit without any kashrus concern.

How do we rule?

There are three opinions among the poskim:

(1) Reva’ie applies to the fruit of all trees growing outside Eretz Yisroel.

(2) Reva’ie applies only to grapes, but not to other fruit trees of chutz la’Aretz. This opinion assumes that since there is an opinion that even in Eretz Yisroel reva’ie does not apply to species other than grapes, one may be lenient with regard to chutz la’aretz and treat the fruits as a safek.

(3) Reva’ie does not apply in chutz la’Aretz.

These last poskim contend that the halacha leMoshe miSinai forbidding arlah in chutz la’aretz applies only to arlah, but not to reva’ie, which is a separate mitzvah. Concerning reva’ie, the general rule that agricultural mitzvos only apply in Eretz Yisroel applies, thus exempting these fruits from the mitzvah of reva’ie.

How do we paskin?

Shulchan Aruch (Yoreh Deah 294:7) quotes the first and third opinions, but rules primarily like the first opinion that the mitzvah of reva’ie does apply outside of Eretz Yisroel. Rama and Gra both rule like the second opinion that it applies only to grapes outside of Eretz Yisroel and not to other fruits. Therefore, Ashkenazim may be lenient and need not redeem fourth-year fruits grown outside of Eretz Yisroel except for grapes, whereas Sefardim must redeem them.

HASHKAFAH OF TU B’SHVAT AND ARLAH

We all know that Tu B’Shvat is the “Rosh Hashanah” for trees, but what does that mean? Do the trees ignite fireworks on their New Year? Does Hashem judge their deeds and misdeeds and grant them a fruitful year or otherwise, chas v’shalom? (In actuality, the Mishnah in Mesechta Rosh Hashanah teaches that the judgment for trees is on Shavuos, not Tu B’Shvat!).

The truth is that the arboreal New Year does indeed have major halachic ramifications for man, who is compared to a tree (see Rashi, Bamidbar 13:20); these ramifications are intimately bound up with the arlah count that depends on Tu B’shvat. As Rav Shimshon 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.

While nibbling on the fruit this Tu B’Shvat, we should think through the different halachic and hashkafah ramifications that affect us.

The author thanks Rabbi Shmuel Silinsky for his tremendous assistance in providing agricultural information for this article.

Praying for a Rainy Day

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Whereas those living  in chutz la’aretz do not recite ve’sein tal umatar (the prayer for rain added to the bracha of Boreich Aleinu in the weekday shmoneh esrei) until the beginning of December, those living in Eretz Yisroel begin reciting this prayer on the Seventh of MarCheshvan. This difference in practice leads to many interesting shaylos:

Question #1:

Yankel, who lives in New York, is in aveilos l”a for his father and tries to lead services (colloquially often called “davening before the amud”) at every opportunity. He will be visiting Eretz Yisroel during the month of November. Does he recite the prayer according to the Eretz Yisroel practice while there? Which version does he recite in his quiet shmoneh esrei? Perhaps he should not even lead services while he is there?

Question #2:

Does someone attending Yeshiva or seminary in Eretz Yisroel recite ve’sein tal umatar according to the custom of Eretz Yisroel or according to the chutz la’aretz practice?

Question #3:

Reuven lives in Eretz Yisroel but is in chutz la’aretz on the Seventh of MarCheshvan (the day that in Eretz Yisroel they begin praying for rain). Does he begin reciting ve’sein tal umatar while in chutz la’aretz, does he wait until he returns to Eretz Yisroel to begin reciting it, or does he follow the practice of those who live in chutz la’aretz and not recite it until December?

In order to explain the halachic issues involved in answering these shaylos, we must first explain why we begin requesting rain on different dates in Eretz Yisroel than we do in chutz la’aretz.

The Gemara (Taanis 10a) concludes that in Eretz Yisroel one begins reciting ve’sein tal umatar on the Seventh of MarCheshvan, whereas in Bavel (where there was a large concentration of Jews) one begins reciting it on the sixtieth day after the autumnal equinox. (The Gemara’s method for calculating the autumnal equinox is based on what is called a sidereal year and differs from our familiar calculation, which is based on the solar year. The reason for this is unfortunately beyond the scope of this article.) Someone who recites ve’sein tal umatar during the summer months in Eretz Yisroel must repeat the Shemoneh Esrei since this request in the summer is inappropriate (Gemara Taanis 3b; Shulchan Aruch Orach Chayim 117:3).

WHY ARE THERE TWO DIFFERENT “RAIN DATES?”

Since Eretz Yisroel requires rain earlier than Bavel, Chazal instituted that the Jews there begin requesting rain shortly after Sukkos. In Bavel, where it was better if it began raining later, reciting ve’sein tal umatar was delayed until later. This practice is followed in all of chutz la’aretz, even in places where rain is not seasonal or where it is necessary to rain earlier — although the precise reason why all of chutz la’aretz follows the practice of Bavel is uncertain (see Rashi and Rosh to Taanis 10a; Shu”t Rosh 4:10; Tur and Shulchan Aruch Orach Chayim 117).

LOCAL CONDITIONS

If a city’s residents need rain at a different time in the year, can they or should they recite ve’sein tal umatar then or not? The Gemara (Taanis 14b) raises this question and cites the following story:

“The people of the city of Nineveh (in contemporary Iraq) sent the following shaylah to Rebbe: In our city we need rain even in the middle of the summer. Should we be treated like individuals and request rain in the bracha of Shma Koleinu or like a community and recite ve’sein tal umatar during the bracha of Boreich Aleinu? Rebbe responded that they are considered individuals and should request rain during the bracha of Shma Koleinu.”

This means that an individual or a city that needs rain during a different part of the year should recite ve’sein tal umatar during the bracha of Shma Koleinu, but not as part of Boreich Aleinu.

NATIONAL CONDITIONS

Is a country different from a city? In other words, if an entire country or a large region requires rain at a different time of the year, should its residents recite ve’sein tal umatar during the bracha of Boreich Aleinu? The Rosh raises this question and contends, at least in theory, that residents of a country should recite ve’sein tal umatar in Boreich Aleinu during the season that it requires rain. In his opinion, most of North America and Europe should recite ve’sein tal umatar during the summer months. Although we do not follow this approach, someone who recites ve’sein tal umatar at a time when his country requires rain should not repeat the Shmoneh Esrei but should rely retroactively on the opinion of the Rosh (Shulchan Aruch and Rama 117:2). Similarly, someone who recited ve’sein tal umatar as part of Boreich Aleinu in error after the Seventh of MarCheshvan should not repeat Shmoneh Esrei afterwards unless he lives in a country where rain is not necessary at this time (Birkei Yosef 117:3; cf. Shu”t Ohalei Yaakov #87 of Maharikash who disagrees.).

With this introduction, we can now begin to analyze the questions at hand. What should someone do if he lives in Eretz Yisroel but is in chutz la’aretz, or vice versa, during the weeks when there is a difference in practice between the two places? As one can imagine, much halachic literature discusses this shaylah. I found three early opinions, which I quote in chronological order:

Opinion #1. The earliest opinion I found, that of the Maharikash (Shu”t Ohalei Yaakov #87) and the Radbaz (Shu”t #2055), discusses specifically an Eretz Yisroel resident who left his wife and children behind while traveling to chutz la’aretz. (In earlier generations, it was common that emissaries from the Eretz Yisroel communities traveled to chutz la’aretz to solicit funds.) These poskim ruled that if the traveler left his family in Eretz Yisroel, he should begin reciting ve’sein tal umatar on the Seventh of MarCheshvan, following the practice of Eretz Yisroel, regardless of whether he himself was then in Eretz Yisroel or in chutz la’aretz. If he is single, or alternatively, if he is traveling with his family, then when he begins reciting ve’sein tal umatar depends on whether he will be gone for the entire rainy season. If he leaves Eretz Yisroel before the Seventh of MarCheshvan and intends to be gone until Pesach or later, then he recites ve’sein tal umatar according to the practice of chutz la’aretz. If he intends to return before Pesach, then he recites ve’sein tal umatar beginning on the Seventh of MarCheshvan even though he is in chutz la’aretz.

The key question here is, what is the criterion for determining when someone recites ve’sein tal umatar? These poskim contend that it depends on his personal need. If his immediate family is in Eretz Yisroel and therefore requires rain already on the Seventh of MarCheshvan, he begins reciting ve’sein tal umatar then even though he himself is in chutz la’aretz. This is considered that he has a personal need for rain (Shu”t Igros Moshe, Orach Chayim 2:102).

Opinion #2. The Pri Chodosh (Orach Chayim 117) quotes the previous opinion (of the Maharikash and the Radbaz) and disputes with them, contending that only one factor determines when the traveler begins reciting ve’sein tal umatar – how long he plans to stay abroad. If he left Eretz Yisroel intending to be away for at least a year, he should consider himself a resident of chutz la’aretz (for this purpose) and begin reciting ve’sein tal umatar in December. If he intends to stay less than a year, he should begin reciting ve’sein tal umatar on the Seventh of MarCheshvan. Furthermore, the Pri Chodosh states that whether one leaves one’s immediate family behind or not does not affect this halacha.

These two approaches disagree what determines when an individual recites ve’sein tal umatar. According to Opinion #1 (the Maharikash and the Radbaz), the main criterion is whether one has a personal need for rain as early as the Seventh of MarCheshvan. According to the Opinion #2 (the Pri Chodosh), the issue is whether one is considered a resident of Eretz Yisroel or of chutz la’aretz.

According to this analysis of Opinion #2, a resident of chutz la’aretz who intends to spend a year in Eretz Yisroel begins reciting ve’sein tal umatar on the Seventh of MarCheshvan whereas if he intends to stay less than a year he follows the practice of chutz la’aretz (Pri Megadim; Mishnah Berurah; cf. however Halichos Shelomoh 8:28 pg. 107). However according to Opinion #1, he would being reciting ve’sein tal umatar on the Seventh of MarCheshvan if he or his family intend to spend any time during the rainy season in Eretz Yisroel. Thus, we already know some background to Question #2 above concerning a yeshiva bachur or seminary student in Eretz Yisroel. According to Opinion #1, they should follow the Eretz Yisroel practice, whereas according to Opinion #2, they should follow the chutz la’aretz practice if they intend to stay for less than a year.

Opinion #3. The Birkei Yosef quotes the two above-mentioned opinions and also other early poskim who follow a third approach, that the determining factor is where you are on the Seventh of MarCheshvan. (See also Shu”t Dvar Shmuel #323.) This approach implies that someone who is in Eretz Yisroel on the Seventh of MarCheshvan should begin praying for rain even though he intends to return to chutz la’aretz shortly, and that someone who is in chutz la’aretz on that date should not, even though he left his family in Eretz Yisroel.

Dvar Shmuel and Birkei Yosef explain that someone needs rain where he is, and it is not dependent on his residence. Birkei Yosef points out that if there is a severe drought where he is located it does not make any difference whether he lives elsewhere; he will be a casualty of the lack of water. This was certainly true in earlier generations where water supply was dependent on local wells. Even today, when water is supplied via piping from large reservoirs, this opinion would seemingly still rule that the halacha is determined by where one is located, and not one’s residence.

Opinion #3 (the Birkei Yosef’s approach) is fairly similar to that of Opinion #1 (the Maharikash and the Radbaz) in that both approaches see the determining factor to be temporary need and not permanent residency. However, these two opinions dispute concerning several details, including what is the ruling of someone in chutz la’aretz whose family remains in Eretz Yisroel. According to Opinion #1, this person begins ve’sein tal umatar on the Seventh of MarCheshvan, whereas Opinion #3 contends that he begins only when the other bnei chutz la’aretz do.

Why does Opinion #3 disregard his family being in Eretz Yisroel as a factor, whereas Opinion #1 is concerned? Birkei Yosef explains that praying for rain for one’s family when one is in chutz la’aretz is praying for an individual need, which is done in shma koleinu and not earlier in the shemoneh esrei since the rest of the community there has no need for rain. Opinion #1 presumably holds that praying for Eretz Yisroel when I am in chutz la’aretz is not considered praying for an individual even though my reason to pray for rain in Eretz Yisroel is personal.

After analyzing these three conflicting opinions, how do we rule? Although the later poskim, such as the Mishnah Berurah, refer to these earlier sources, it is unclear how they conclude halachically. (See Shu”t Tzitz Eliezer 6:38, which contains a careful analysis of the words of the Mishnah Berurah on this subject.) Thus, an individual should ask his Rav what to do in each case.

TRAVELING AND RETURNING

What does one do if he travels and returns within these days? Assuming that he began to recite ve’sein tal umatar on the Seventh of MarCheshvan because he was in Eretz Yisroel (and he followed those opinions that rule this way or he changed his plans), does he now stop reciting it upon his return to chutz la’aretz?

This question is raised by the Birkei Yosef (117:6), who rules that he continues reciting ve’sein tal umatar when he returns to chutz la’aretz.

What does one do if he is reciting ve’sein tal umatar and the community is not, or vice versa — and he would like to lead the services (“daven before the amud”)? Birkei Yosef rules that he should not lead the communal services; however, if he forgot and did so, he should follow his own version in the quiet Shmoneh Esrei and the community’s version in the repetition (Birkei Yosef 117:8). However, Rav Shlomoh Zalman Auerbach permitted him to lead the services (Halichos Shelomoh 5:21; note that according to Igros Moshe, Orach Chayim 2:23, 29; 4:33 he should not lead the services.).

Let us now examine some of the shaylos we raised above:

Question #1:

Yankel, who lives in New York, is in aveilos l”a for his father and tries to lead services (colloquially but inaccurately usually called “davening before the amud”) at every opportunity. He will be visiting Eretz Yisroel during the month of November. Does he recite the prayer according to the Eretz Yisroel practice while there? Which version does he recite in his quiet shmoneh esrei? Is he even permitted to lead services while he is there?

According to all of the opinions involved, when davening privately Yankel should not recite ve’sein tal umatar until it is recited in chutz la’aretz since he does not live in Eretz Yisroel, does not have immediate family living there, and was not there on the Seventh of MarCheshvan. As explained above, according to most opinions, he should not lead the services since he is not reciting ve’sein tal umatar and the congregation is, whereas according to Rav Shlomoh Zalman Auerbach he may lead the services. According to Birkei Yosef, if he is in Eretz Yisroel on the Seventh of MarCheshvan he should begin to recite ve’sein tal umatar then since he now has a need for rain; he should continue to recite this prayer even when he returns to chutz la’aretz. However, in this case, when returning to chutz la’aretz he should not lead services according to most opinions since he is reciting ve’sein tal umatar and they are not. If he forgot and led the services, he should recite ve’sein tal umatar in the quiet Shmoneh Esrei but not in the repetition.

According to the Pri Chodosh (Opinion #2 above), if he is in Eretz Yisroel on the Seventh of MarCheshvan he should not recite ve’sein tal umatar since he lives in chutz la’aretz. Following this approach, he should not lead services when in Eretz Yisroel, but he may resume when he returns to chutz la’aretz.

Question #2:

Does someone attending Yeshiva or seminary in Eretz Yisroel who observes two days of Yom Tov recite ve’sein tal umatar according to the custom of Eretz Yisroel or according to the chutz la’aretz practice?

The answer to this question will depend on which of the above-quoted authorities one follows. According to Opinion #1 (the Maharikash, the Radbaz) and Opinion #3 (the Birkei Yosef), they should follow the practice of Eretz Yisroel since they need the rain while here even though they are not (yet) permanent Israeli residents. According to Opinion #2 (the Pri Chodosh), if they are staying for less than a year, they follow the practice of chutz la’aretz, whereas if they are staying longer they should begin reciting it from the Seventh of MarCheshvan.

Question #3:

Reuven lives in Eretz Yisroel but is in chutz la’aretz on the Seventh of MarCheshvan (the day that in Eretz Yisroel they begin praying for rain). Does he begin reciting ve’sein tal umatar while in chutz la’aretz, does he wait until he returns to Eretz Yisroel, or does he follow the practice of those who live in chutz la’aretz?

According to Opinions # 1 and #2, he should follow the practice of those living in Eretz Yisroel, but for different reasons. According to Opinion #1, the reason is because he knows that he will return to Eretz Yisroel during the rainy season and therefore follows this approach. According to Opinion #2, since he left Eretz Yisroel for less than a year he is considered an Eretz Yisroel resident.

Although it would seem that the Birkei Yosef would hold that he should not recite ve’sein tal umatar until the bnei chutz la’aretz do, it is not absolutely clear that he would disagree with the other poskim in this case. One could explain that he only ruled that one follows the bnei chutz la’aretz if he is there for an extended trip but not if he is there for only a few weeks that happen to coincide with the Seventh of MarCheshvan. For this reason, when someone recently asked me this shaylah, I ruled that he should follow the practice of those dwelling in Eretz Yisroel. Subsequently, I found this exact shaylah in Shu”t Tzitz Eliezer (6:38) and was very happy to find that he ruled the same way I had. (However, Halichos Shelomoh 8:19 rules that he should recite ve’sein tal umatar in Shma Koleinu and not in Boreich Aleinu.)

Rashi (Breishis 2:5) points out that until Adam HaRishon appeared, there was no rain in the world. Rain fell and grasses sprouted only after Adam was created, understood that rain was necessary for the world, and prayed to Hashem for rain.  Whenever we pray for rain, we must always remember that the essence of prayer, and indeed the purpose for rain, is drawing ourselves closer to Hashem.

Can the Rav Make a Mistake?

clip_image002This article is somewhat more complicated than what I usually send out. Nevertheless, since questions about rabbinic infallibility are usually misunderstood and misinterpreted, I decided to send this article before Pesach.

Would You Like One Day or Two?

On the evening of the first night of Chol HaMoed in Eretz Yisroel (corresponding to the eve of the second night of Yom Tov in chutz la’aretz), I received a curious phone call:

“Rabbi,” the female voice began, “I am calling on behalf of my friend, Rivkah.” After decades of rabbinic experience, I was convinced that this was the introduction to an embarrassing question. People often prefer pretending that they are asking for someone else — hiding behind the name “of a friend.” But this time I was wrong.

KIDDUSH OR HAVDALAH?

“Rivkah is a student at Bnos Aliyah Seminary and is uncertain whether she should keep one day of Yom Tov or two. A few weeks ago she visited a family for Shabbos and mentioned her predicament. The man of the house graciously told her that he answers halachic inquiries and ruled that she need keep only one day of Yom Tov. However, upon returning to Seminary, a teacher told Rivkah that she should not ask her shaylah from anyone, but must ask one of the seminary rabbis. Rivkah did so, and was told to keep two days. Subsequently, someone told her that she should not have asked the question a second time and must follow the first ruling she received. Now she is in a dilemma: should she observe the second day of Yom Tov or not? Is she supposed to find someone reciting Kiddush or Havdalah?”

Although most people do not have a Yom Tov issue as Rivkah did, they could still stumble into a similar predicament by asking any query from two different rabbonim. As I understood the shaylah, the answer to Rivkah’s query did not involve analyzing the laws of who must observe two days, but whether she must follow the first opinion or the second. Although the Gemara states that one may not ask the same shaylah twice, perhaps this only applies if someone received a strict ruling that he or she is now trying to overturn. But what happens if someone first received a lenient ruling, and then received a stricter response? In our instance, the first authority told Rivkah that she need keep only one day Yom Tov; most opinions consider this a lenient ruling since she now may perform melacha on the second day (Minchas Shelomoh 1:19:8). (For reasons beyond the scope of this article, Shu”t Chacham Tzvi #167 contends that keeping one day is the stricter ruling.)

In order to resolve Rivkah’s quandary, we need to discuss the following questions:

1. May one ask again after receiving a lenient answer?

2. If one did, and the second authority ruled strictly, whose reply is binding? Is she still bound by the first ruling, which was lenient, or the second, stricter ruling; or perhaps she should now ask a third authority for a final decision?

3. Was the teacher correct in directing her to ask a second shaylah after she already received a psak?

BACKGROUND INFORMATION

Before focusing on Rivkah’s predicament, we must first understand the general principles of the topic:

The Gemara (Avodah Zarah 7a) teaches that someone who asked a shaylah and received a strict ruling may not subsequently ask the question from a different authority. I will refer to this principle as hanishal lachacham, based on the opening words of the Gemara’s statement (“One who asked a Torah scholar”).

Tosafos (Avodah Zarah 7a s.v. hanishal) inquires, “May one never question the rav’s decision? Let the different authorities debate the issue and perhaps the second will prove to the original authority that his decision was incorrect?” Tosafos concludes that the Gemara only prohibits asking a second rav without notifying him that one has already asked the question. However, if one notifies the second authority that the question had already been asked, the second authority may oppose the decision if he considers it mistaken. Can he actually overturn the first ruling? This depends, as there are three levels of error:

CLEAR MISTAKE

I. If it is obvious to the second rav that the first rav erred, the second rav may inform the inquirer of the correct practice (Tosafos). This is true only if the first rav‘s ruling conflicts with accepted halachic practice or was based on inaccurate information (see Mishnah Bechoros 28b). In these instances, the first opinion is totally disregarded, since it is erroneous. Judaism does not accept a doctrine of rabbinic infallibility; on the contrary, the Gemara records several instances where great halachic authorities erred in specific halachic rulings (see Horiyos 2a). For example, Rabbi Tarfon ruled that a cow whose uterus was surgically removed is not kosher as it will die shortly. The Mishnah records that when it was demonstrated that an animal can survive this surgery satisfactorily, Rabbi Tarfon acknowledged his error (Mishnah Bechoros 28b).

PROVABLE ERROR

II. If the second rav feels he can prove that the first ruling was mistaken, but the ruling is not an obvious error, the second authority may not say anything directly to the inquirer. Instead, he should contact the first rav to prove that the ruling was flawed. In the true style of intellectual honesty required of a Torah scholar, the first rav should carefully examine the second rav’s approach to see if it has merit. It is now up to the first rav to decide whether to change his ruling (Shu”t Panim Meiros #2; cf. Shach, Yoreh Deah 242:58; Choshen Mishpat 25:14:17). If he still feels that his first interpretation is correct, or not proven to be in error, he should maintain his original position. According to some opinions, he may retract his position if he no longer feels it to be correct, even though he cannot prove it wrong (Levush, Yoreh Deah 242:31; Aruch HaShulchan, Yoreh Deah 242:60).

A similar situation could result if the second rav knows that well-accepted authorities rule differently from the way the first rav did, and he suspects that the first rav would accept their position (see Rosh, Sanhedrin 4:6). In this situation, too, the second rav may simply notify the first rav of the variant opinion and then it is up to the first rav to decide whether to rescind his original decision.

In all the cases we mentioned so far, the first rav’s ruling is retracted, either because it was clearly erroneous or because he himself withdrew it.

DISPUTE IN INTERPRETATION

III. If the second rav disagrees with the first rav’s conclusion, but cannot prove it incorrect, the second rav should say nothing to the questioner, who remains bound by the original decision. There is no halachic error here, but a diversity of outlook, and the first rav’s verdict cannot be overturned. Even if the first rav himself subsequently reconsiders his decision, most authorities contend that he cannot alter his own original ruling since the original approach cannot be disproved (Shach, Yoreh Deah 242:58 and Choshen Mishpat 25:14:17; Shu”t Panim Meiros #2; Divrei Chamudos, Chullin 3:24). (However, note that the Levush, Yoreh Deah 242:31, and the Aruch HaShulchan, Yoreh Deah 242:60, rule that he can change his mind. They feel that the second rav should engage the first rav in debate because this might change the first one’s mind.)

How long does the ruling remain binding?

The Rama (Yoreh Deah 242:31) rules that the rav’s decision is binding only on the specific instance just asked. However, if the same shaylah recurs, one may re-ask the shaylah from either the same or a different rav. The same rav himself, and certainly any other rav, may rule differently when the question recurs. Therefore, if someone asked whether one may perform a certain activity on Shabbos, was told that it is forbidden, and subsequently discovers that the consensus of poskim permits this activity, he may be lenient in the future. Similarly, a rav who ruled one way and subsequently discovered that most poskim dispute his conclusion, may conclude differently the next time he is asked this question.

WHAT IF THE FIRST SCHOLAR WAS LENIENT?

So far, we have assumed that the first rav decided strictly. What happens if the first rav ruled leniently, and the questioner would like to ask someone else? This issue is germane to Rivkah asking her seminary rabbi about observing two days of Yom Tov after the first rabbi permitted her to keep only one day.

The answer to this question depends on why one may not ask a shaylah from a second authority. Here are two reasons given:

Reason #1: CONSIDERING IT PROHIBITED

Most Rishonim contend that when submitting a question to a rav, the inquirer accepts the rav’s decision as binding and must then consider the item either permitted or prohibited (Raavad quoted by Ran; Rosh). This concept is called shavya anafshei chaticha di’issura, considering something as prohibited. I will clarify this principle with a case that I discussed in a different article.

A man believes himself to be a kohen, even though there was insufficient evidence for his assumption. Since most Jews are yisroelim and not kohanim, his halachic status is a yisroel, and he has none of the rights of a kohen — he may not duchen, redeem a bechor or receive the first aliyah to the Torah. However, since he considers himself a kohen, he must assume the stringencies that result from that esteemed status — he may not come in contact with corpses, nor marry a woman forbidden to a kohen. Since he believes that he is a kohen he is shavya anafshei chaticha di’issura, he must consider himself prohibited as if he is a kohen.

The Rishonim mentioned above maintain that asking a shaylah means accepting the rav’s opinion as binding halacha; if he rules stringently I must accept his verdict and therefore I may not re-ask the question. (The exceptions mentioned previously where the ruling can be retracted are because the decision is considered an error and therefore not a valid decision.)

This approach rules that the principle of hanishal lachacham applies only when the first rav ruled stringently. If he ruled leniently, I am permitted to follow his ruling, but not obligated to, and therefore I may re-ask the shaylah from a different rav (see Tosafos, Avodah Zarah 7a s.v. hanishal). Thus Rivkah may ask her shaylah from the seminary rabbi, notwithstanding the first ruling she received. We will soon discuss whether she is obligated to keep the second day of Yom Tov once she received this second ruling.

Reason #2: RESPECT FOR A TALMID CHACHAM

Other authorities explain that re-asking a shaylah from a second rav affronts the respect due the first rav by implying that one is questioning his competence (cited by Ran to Avodah Zarah. See there that he also quotes an additional reason.) This rationale forbids re-asking a question even if the first rav ruled leniently, as it is still offensive to the rav’s honor. Following this approach, Rivkah should not have asked the seminary rabbi once she already asked someone qualified to answer her shaylah.

SHOULD HER TEACHER HAVE TOLD HER TO ASK THE SHAYLAH AGAIN?

Certainly, her teacher should have asked her own shaylah whether to instruct Rivkah to ask her shaylah again.

Do any other differences result from the dispute as to why one may not re-ask a shaylah? Indeed there are.

A BRACHA DISPUTE

Many halachic issues are not matters of being strict versus lenient, but simply questions regarding correct procedure. For example, whether or not to recite a bracha in a certain instance, which bracha to recite, or whether to repeat a tefillah, are all instances where there is no “stricter” or “more lenient” side of the question. Both sides of the question involve a stringency, and therefore the principle of shavya anafshei chaticha di’issura is not applicable.

Those who ban re-asking a question because of shavya anafshei chaticha di’issura should therefore permit re-asking any question of this type in order to receive a more accurate or authoritative response. On the other hand, those who ban re-asking a question because it is offensive to a scholar’s honor should prohibit it in this instance too, since it implies a lack of competence on the part of the first rav asked.

Before resolving Rivkah’s dilemma, we need to explore one other fascinating point:

A DISPUTE BETWEEN THE TALMUDS?

When the Gemara Bavli (Avodah Zarah 7a) cites the prohibition of re-asking a halachic inquiry, it refers only to cases where the first rav answered stringently, but mentions no cases where the first rav ruled leniently. This implies that the Bavli explains the reason for this prohibition like the first approach – that one has accepted the prohibition of the rav.

However, the Yerushalmi (Shabbos 19:1) quotes the following anecdote:

Rabbi Simon permitted something, which Rabbi Ami subsequently prohibited. Rabbi Simon was upset; is it not said that if one sage permitted something, a second sage may not prohibit it?

This Yerushalmi appears to rule that one may not re-ask a question even if one received a lenient ruling, which is impossible according to the first approach. Thus, the Yerushalmi appears to understand that the reason one may not re-ask a question is the talmid chacham’s honor, the second approach cited. This would imply that the two Talmuds dispute the exact question upon which our dear Rivkah and her teacher stumbled!

The Rishonim prefer to avoid saying that the two Talmuds disagree, suggesting different approaches to resolve this contradiction.

AN ALTERNATIVE READING

Tosafos suggests reading the last statement of the Yerushalmi rhetorically, as opposed to being a support for Rabbi Simon’s position. The passage now reads:

Rabbi Simon permitted something, which Rabbi Ami subsequently prohibited. Rabbi Simon was upset. The Yerushalmi now questions the validity of Rabbi Simon’s reaction:

“Does it say anywhere that if one sage permitted something, a second sage may not prohibit it?”

Following Tosafos’ approach, the Yerushalmi rules, exactly as the Bavli implies, that the prohibition to re-ask a question applies only when the first scholar decided stringently. However, when he ruled leniently, a second scholar may rule freely on the case.

On the other hand, the Rosh explains the Yerushalmi as I explained originally, that Rabbi Simon objected to Rabbi Ami’s strict ruling as halachically objectionable after he (Rabbi Simon) had permitted the matter. The Rosh quotes this approach as definitive halacha, meaning that hanishal lichacham is prohibited because of the honor of the first rav. The Rosh appears to hold that both reasons are true, the Bavli emphasizes one reason, and the Yerushalmi the second. This approach maintains that one may indeed not seek out a second rav’s opinion (without telling him that one already asked someone), whether the first rav was lenient or strict.

How do we rule in this dispute?

Most halachic authorities rule that the law of hanishal lichacham applies only when the initial ruling was strict, but if it was lenient, one may indeed re-ask the shaylah (Shach, Yoreh Deah 242:59; Gra). According to this approach, there was nothing wrong with Rivkah re-asking her question.

However, there are some who rule, like the Rosh, that hanishal lichacham applies whether the initial ruling was strict or lenient and forbid re-asking a question even if one received a lenient ruling (Rama, Yoreh Deah 242:31).

CONCLUSION

Now that Rivkah already re-asked the question, must she keep one or two days of Yom Tov? According to those who rule that hanishal lichacham is because one has accepted the stringent opinion, once Rivkah re-asked the question she is bound to follow the second, stricter ruling. Since most authorities rule this way, one who re-asks the question from a second authority will be obligated to follow his opinion, if he is stricter. No matter how many people one asks, one will be always obliged to follow the strictest ruling. Thus, Rivkah should celebrate two days of Yom Tov.

The final psak Rivkah received only applies to the Yom Tov about which she asked. Before the next Yom Tov arrives, she may ask again whether to observe one day Yom Tov or two. May she direct her question to a particular rav, knowing what answer she wants to receive? That is a topic for a different article.

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