Rav Yehudah Hachassid and His Shidduchin

Question #1: A Shidduch Crisis

“My husband’s name is Chayim Shlomo, and an excellent shidduch possibility was just suggested for my daughter. However, the bachur’s name, which was originally Shlomo, was changed to Chayim Shlomo when he was ill as a child. May we proceed with this shidduch?”

Question #2: Must we turn down this shidduch?

“My wife’s name is Rivkah, and we were just suggested an excellent shidduch for my son.  However, the girl’s name is Esther Rivkah. Must we turn down the shidduch?”

Answer:

Both of these questions relate to rules that are not based on Talmudic sources, but on the writings of Rav Yehudah Hachassid, who prohibited or advised against many potential marriages that are otherwise perfectly acceptable, according to halachah. But before we discuss the writings of Rav Yehudah Hachassid, let us discover who he was, and why his opinion carries so much weight.

Who was Rav Yehudah Hachassid?

Well, to complicate matters a bit, there were two people in Jewish history who were called Rav Yehudah Hachassid. These two individuals lived hundreds of years apart, and, to the best of my knowledge, had no known connection to one another, other than that they were both esteemed Ashkenazic leaders in their respective generations. The Rav Yehudah Hachassid of the seventeenth century, famed as the builder of a shul in the Old City of Jerusalem, now called the Churva shul, spearheaded the first “modern” effort to establish an Ashkenazi community in the holy city. Although this failed attempt had political and practical ramifications that lasted until the middle of the twentieth century, I have never heard him blamed for the blocking of a potential shidduch.

On the other hand, the much earlier Rav Yehudah Hachassid,whose writings and rulings will be discussed in this article, was a great posek and mekubal, whose halachic decisions and advice have been followed extensively by both Ashkenazim and Sefardim.

Rav Yehudah Hachassid, who was born in approximately 4910 (1150), is quoted several times in the Tosafos printed in our Gemara (for example, Tosafos, Bava Metzia 5b, s.v. Dechashid and Kesuvos 18b, s.v. Uvekulei). Rav Yehudah’s students included a number of famous rishonim who are themselves Baalei Tosafos, such as the Or Zarua, the Rokeach, the Semag, and the Sefer Haterumah.

Rav Yehudah Hachassid was the head of a select group of mekubalim called the Chassidei Ashkenaz. He authored numerous works on kabbalah and was the author of the poem Anim Zemiros, sung in many shullen at the end of Shabbos davening. Two works of his are intended for use by the common laymen, the Sefer Chassidim and the Tzava’as [the ethical will of] Rav Yehudah Hachassid, and these mention the subject of today’s article.

The tzava’ah of Rav Yehudah Hachassid

In his ethical will, Rav Yehudah Hachassid lists 56 practices that he prohibits and/or advises against. Most of these have no source in the Gemara. Why did Rav Yehudah Hachassid prohibit these actions? Although he did not explain his reasons, later authorities assume that these are practices that Rav Yehudah Hachassid considered to be dangerous, based on kabbalah. It is quoted, in the name of Rav Shneur Zalman of Liadi (the first Lubavitcher Rebbe, author of Shulchan Aruch Harav and Tanya), that to elucidate one of Rav Yehudah Hachassid’s statements in his tzava’ah would require a work the size of the Shelah, a classic of halachah, kabbalah and musar, that is hundreds of pages long.

I am not going to list everything in Rav Yehudah Hachassid’s tzava’ah, but, instead, will simply cite some of the practices that he prohibits.

–          A man should not marry a woman who has the same name as his mother, nor should he marry a woman whose father has the same name that he has.

Rav Yehudah Hachassid closes by saying that if people violated these instructions, one of the parties with the name in common should change his/her name – perhaps this will provide some hope. He does not specify what the harm is or what the hope is for.

–          Two mechutanim should not have the same name.

–          Two mechutanim should not make two shidduchim, a son with a daughter and a daughter with a son.

–          One should not marry one’s niece, either his brother’s daughter or his sister’s daughter.

–          A father and son should not marry two sisters.

–          Two brothers should not marry two sisters, nor should they marry a mother and her daughter.

–          A stepbrother and a stepsister should not marry.

–          Two married brothers should not live in the same city.

Before we get everyone disturbed, I will share with you that many of these relationships prohibited (or advised against) by Rav Yehudah Hachassid are not recognized as binding by later authorities. For example, the Chofetz Chayim’s first rebbitzen was his stepsister: he married the daughter of his stepfather, who was married to the Chofetz Chayim’s widowed mother. Similarly, I know of numerous instances in which two brothers married two sisters, without anyone being concerned about it. And the Tzemach Tzedek of Lubavitch mentions that one need not be concerned about pursuing a shidduch in which the fathers of the chosson and the kallah have the same given name (Shu’t Tzemach Tzedek, Even Ha’ezer #143).

Selective service

In most places, the only shidduchin-related rule of Rav Yehudah Hachassid that has been accepted is that a man not marry a woman who has the same given name as his mother, nor should a woman marry a man who has the same name as her father. Why is this rule more accepted than any of the others?

Early poskim note that the custom of being concerned about this was far more widespread than concern about the other prohibitions of Rav Yehudah Hachassid. They propose several reasons to explain why this is true.

One answer is because the Arizal was also concerned about a man marrying a woman whose name is the same as his mother. Yet, there is no evidence of the Arior other authorities being concerned regarding the other rules of Rav Yehudah Hachassid (see Shu’t Mizmor Ledavid of Rav David Pardo, #116, quoted by Sedei Chemed, Volume 7, page 17; Shu’t Divrei Chayim, Even Ha’ezer #8).

Another possible reason is that the Chida writes that he, indeed, saw problems result in the marriages of people who ignored this specific prohibition of Rav Yehudah Hachassid.

Rav Chayim Sanzer adds that one should be concerned about this particular practice only because klal Yisroel has accepted as custom to pass up these marriages. To quote him: If the children of Israel are not prophets, they are descended from prophets, and there is an innate understanding that these shidduchin should not be made.

The responsum of the Noda Biyehudah

No discussion of the instructions of Rav Yehudah Hachassid is complete without mentioning a responsum of the Noda Biyehudah, the rav of Prague and posek hador of the eighteenth century. The Noda Biyehudah (Shu’t Even Ha’ezer II #79) discusses the following case: A shidduch was suggested for the sister-in-law of a certain Reb Dovid, a close talmid of the Noda Biyehudah, in which the proposed chosson had once had his name changed, because of illness, to the name of the girl’s father. The Noda Biyehudah replied to Reb Dovid that generally he does not discuss questions that are not based on sources in Talmud and authorities. Nevertheless, he writes that he will break his usual rules and answer the inquiry.

First, the Noda Biyehudah points out a very important halachic principle: No talmid chacham may dispute any halachic conclusion of the Gemara, whether he chooses to be lenient or stringent, and anyone who does so is not to be considered a talmid chacham. Upon this basis, the Noda Biyehudah notes that we should question the entire tzava’ah of Rav Yehudah Hachassid, since the work forbids numerous practices that run counter to rulings of the Gemara. To quote the Noda Biyehudah, “We find things in Rav Yehudah Hachassid’s tzava’ah that are almost forbidden for us to hear.” The examples the Noda Biyehudah chooses include:

One should not marry one’s sister’s daughter. However, the Gemara (Yevamos 62b) rules that it is a mitzvah to do so.

Rav Yehudah Hachassid prohibited a father and son from marrying two sisters, yet we see that the great amora Rav Papa arranged the marriage of his son to his wife’s younger sister (Kesubos 52b).

Another example is that Rav Yehudah Hachassid writes that two brothers should not marry two sisters, yet the Gemara (Berachos 44a) writes approvingly of these marriages. Furthermore, the amora, Rav Chisda, arranged for his two daughters to marry two brothers, Rami bar Chamma and Ukva bar Chamma (ibid.).

Explaining Rav Yehudah Hachassid’s concern

The Noda Biyehudah continues: “However, out of esteem for Rav Yehudah Hachassid, we must explain that in his great holiness, he realized that the shidduchin he was discouraging would all be bad for his descendants. Therefore, Rav Yehudah Hachassid’s comments do not conflict with the Gemara, since he was writing a special ruling for individuals that should not be applied to anyone else.” Therefore, Reb Dovid does not need to be concerned about his sister-in-law proceeding with this shidduch.

The Noda Biyehudah presents an additional reason why Reb Dovid does not need to be concerned: Rav Yehudah Hachassid’s concerns apply only to birth names or names given to sons at their bris, but do not apply to any name changes that take place afterwards. The Noda Biyehudah rallies proofs that adding or changing a name because of illness can only help a person and cannot hurt. In addition, the Noda Biyehudah reasons that if someone was an appropriate shidduch because of his birth name, changing or adding to his name cannot now make this shidduch prohibited.

Marry a talmid chacham

Aside from the other reasons why the Noda Biyehudah feels that this shidduch can proceed, he adds another rule: It is more important for someone to marry off his daughter to a talmid chacham, which the Gemara says is the most important thing to look for in a shidduch, than to worry oneself about names, a concern that has no source in the Gemara.

At this point, let us examine one of our opening questions:

“My husband’s name is Chayim Shlomo, and an excellent shidduch possibility was just suggested for my daughter. However, the bachur’s name, which was originally Shlomo, was changed to Chayim Shlomo when he was ill as a child. May we proceed with this shidduch?”

According to the Noda Biyehudah, one may proceed with the shidduch, even if the younger Chayim Shlomh does not qualify as a talmid chacham and even if they are descended from Rav Yehudah Hachassid, since the name Chayim was not part of his birth name.

Stricter approaches

On the other hand, there are other authorities who are, in fact, concerned about violating the instructions of Rav Yehudah Hachassid and do not mention any of the above heterim (quoted in Sdei Chemed Volume 7, pages 17- 20; Kaf Hachayim, Yoreh Deah 116:125). These authorities supply a variety of reasons why the arguments of the Noda Biyehudah do not apply. As far as the Noda Biyehudah’s statement that Rav Yehudah Hachassid could not have banned that which is expressly permitted, or even recommended in the Gemara as a mitzvah, some respond that, although at the time of the Gemara there was no need to be concerned about the kabbalistic problems that these concerns may involve, our physical world has changed (nishtaneh hateva), and there is therefore, currently, a concern of ayin hora (quoted by Sdei Chemed pg. 19).

In conclusion

I leave it to the individual to discuss with his or her posek whether or not to pursue a particular shidduch because of an identical name or any other concern raised by Rav Yehudah Hachassid. Of course, we all realize that the most important factor in finding a shidduch is to daven that Hashem will provide the appropriate match in the right time.

This discussion is continued in part II of this article.

Contemporary Conversion Conundrums

Question #1: Who is a Jew?

Are Jews an ethnic group?

Question #2: What is a Jew?

Or is Judaism a religion?

Question #3: Teaching a Non-Jew?

May I teach Torah to someone who is interested in becoming Jewish?

Introduction

When our ancestors accepted collective responsibility to observe the Torah, they did so by performing bris milah, immersing in a mikveh and offering a korban. So, too, a non-Jew who is joining the Jewish people is entering the same covenant and follows a similar procedure (Kerisus 9a). When the bris milah is performed, a special form of the brocha is recited: lamul es hageir. Immediately after immersion in the mikveh, the new convert recites a brocha, al hatevilah.

Since, unfortunately, no korbanos can be offered today, an individual may join the Jewish people and become fully obligated to fulfill all the mitzvos without fulfilling this korban requirement. (We derive from a pasuk that geirim are accepted even in generations that do not have a Beis Hamikdash.) However, when the Beis Hamikdash is iy”H rebuilt, every geir will be required to offer a korban olah, which is completely burnt on the mizbei’ach (Rambam, Hilchos Issurei Bi’ah 13:5). Those who have already become geirim will be obligated to bring this korban at that time.

The privilege of becoming a geir tzedek comes with very exact and exacting guidelines. On a technical level, the geir is accepting responsibility to perform mitzvos. Through the geirus procedure, he creates an obligation upon himself to observe mitzvos (Birkas Shemuel, Kiddushin #15).

Who is a Jew?

To the non-Jewish or non-observant world, the definition of a Jew is based on ethno-sociological criteria. But to the Torah Jew, the definition of a Jew is someone who is a member of a people obligated to fulfill the Torah’s commandments. For this reason, it is axiomatic that joining the Jewish people means accepting the responsibility to observe mitzvos (kabbalas mitzvos). This concept, so obvious to the Torah Jew, is almost never appreciated by the non-observant. This is why a not-yet-observant Jew often finds the requirements for giyur to be “unrealistic” or “intolerant.” In reality, attempting to bend the Torah’s rules reflects a lack of understanding of the concept of “commandment” and the unique status of the Jewish people as a nation whose definition is: living according to the laws of Hashem.

In other words, the answer to our opening question — are Jews an ethnic group or is Judaism a religion? — is that the Jewish people are a divinely created religious community chartered with a specific relationship with our Creator. He who made the Rules instructed that others desiring to join the community may do so, but those who choose to leave it may not dispense with their obligation. Thus, we are not technically “an ethnic group,” because you cannot “join” one. On the other hand, we are not simply a “religion” either, because someone who does not believe in the tenets of Judaism may still be Jewish.

Desire to convert

Someone requesting to be converted to Judaism is discouraged from doing so. As the Gemara (Yevamos 47a) says, we ask him, “Why do you want to convert? Don’t you know that Jews are persecuted and dishonored? Constant suffering is their lot! Why do you want to join such a people?”

Why discourage a sincere person from joining Jewish ranks? Shouldn’t we promote this noble endeavor?

This is because even a sincerely motivated convert may not successfully persevere when encountering major adversity. We can never be certain what the future will bring, but placing obstacles in the path to conversion helps a potential geir who might later regret the decision. As the Gemara explains, we tell him, “Until now you received no punishment if you did not keep kosher. There was no punishment if you failed to observe Shabbos. If you become Jewish, you will receive very severe punishments for not keeping kosher or Shabbos!” (Yevamos 47a)

A different method of discouraging someone from converting is to explain that someone not Jewish who observes the seven mitzvos benei Noach properly merits olam haba, without becoming obligated to keep all the Torah’s mitzvos.

The beis din overseeing the conversion attempts to ascertain that the candidate wants to become Jewish for the correct reasons. If we suspect that there is an ulterior reason to convert, the potential convert is not accepted, even if they commit to full mitzvah observance. The Gemara and the Rambam note that a beis din should be aware that a man may seek conversion to allow him to marry a Jewish woman, or a woman because she wants to marry a Jewish man. The Gemara and the Rambam rule that we should reject these conversion candidates, because their motivation is not fully sincere.

If the potential convert states that he/she accepts responsibility to fulfill all the mitzvos, we usually assume that the geirus is valid. However, what is the halacha if the potential convert declared acceptance of all the mitzvos, but the individual’s conduct indicates that this was merely lip service? For example, what happens if the convert eats non-kosher food or desecrates Shabbos immediately following his conversion procedure? Is he considered Jewish? This question is disputed by Rav Avraham Yitzchak Kook, first Chief Rabbi of the new yishuv in pre-state Israel, and Rav Chayim Ozer Grodzenski, accepted posek hador and rav of Vilna until his passing in 1940, in which Rav Kook rules that the geirus is valid, as long as the beis din believes, at the time of the conversion, that the person is fully accepting observance of the mitzvos, whereas Rav Chayim Ozer rules that the geirus is invalid. Rav Moshe Feinstein rules that, when it is clear that the person never intended to observe mitzvos, the conversion is invalid. The person remains a non-Jew, since he never undertook kabbalas mitzvos, which is the most important component of geirus (Shu”t Igros Moshe, Yoreh Deah 1:157; 3:106).

Accepting mitzvos

As mentioned above, kabbalas mitzvos is a verbal acceptance to observe all the Torah’s mitzvos. We do not accept a convert who states that he is accepting all the mitzvos of the Torah, except for one (Bechoros 30b). Rav Moshe Feinstein discusses a woman who was interested in converting and was willing to fulfill all the mitzvos, except the requirement to dress in a halachically appropriate manner. Rav Moshe rules that it is questionable if her geirus is valid (Shu”t Igros Moshe, Yoreh Deah 3:106).

Sincerity

It is important to accept only converts who want to join the Jewish people and observe the mitzvos for sincere reasons. This is why converts are not accepted whenever there is political, financial, or social gain in being Jewish. For example, no converts were accepted by batei din in the days of Mordechai and Esther, nor in the times of Dovid and Shelomoh, nor will geirim be accepted in the era of the Moshiach. In these era, we assume that the interest in conversion is influenced by the financial or political advantages in being Jewish (Yevamos 24b). For this reason, Megillas Esther (8:17) refers to misyahadim, “those who made themselves into Jews,” without acceptance by the official batei din. Similarly, in an earlier era, unlearned Jews created ersatz “batei din” during the reign of Dovid Hamelech, converting people against the wishes of the beis din hagadol (Rambam, Hilchos Issurei Bi’ah 13:15).

The Rambam explains that the “non-Jewish” wives that Shelomoh married were really insincere converts. In his words, “In the days of Shelomoh, converts were not accepted by the official batei din…however, Shelomoh converted women and married them… and it was known that they converted for ulterior reasons and not through the official batei din. For this reason, the pasuk refers to them as non-Jews… furthermore, the end bears out – because they worshipped idols and built altars to them” (Rambam, Hilchos Issurei Bi’ah 13:15-16).

A successful spouse trap

In all of the above instances, where there is an ulterior motive to convert, should someone manage to become converted, the giyur is valid, provided that the individual, indeed, accepted full mitzvah observance.

Why is this valid bedei’evid?

Since they want to marry this particular spouse, and the only way to accomplish this is by accepting mitzvos and becoming Jewish, he or she has accepted keeping the mitzvos (Ritva and Nimukei Yosef, both to Yevamos 24a).

Because of this rule, we do not accept someone who is converting because he or she wants to marry someone who is Jewish, even if the convert is absolutely willing to observe all the mitzvos (Yevamos 24b; Menachos 44a). However, if the convert followed all the procedures, including full acceptance of all the mitzvos, the conversion is valid, even though we disapprove of what was done (Rambam, Hilchos Issurei Bi’ah 13:15-18).

Times have changed

This assumption was true at the time of the Gemara and the Rambam, when societal norms did not permit someone to marry Jewish without being part of a Jewish community that was halachically observant. In the contemporary world, a non-Jew can marry someone Jewish without any commitment to the Jewish people. Does this affect the status of someone who wants to convert to Judaism for the sake of marriage?

The two greatest Litvishe halachic authorities of pre-war Europe both contended that it does affect the geirus, but they reached diametrically opposite conclusions. Rav Chayim Ozer noted that, since in the contemporary world, any couple can get married regardless of their religious affiliation, someone wanting to convert and observe mitzvos for the sake of marriage may be accepted for conversion lechatchilah (Shu”t Achiezer 3:27).

At the same time, the rav of Kovna was the Devar Avraham, Rav Avraham Kahana-Shapiro, who, upon seeing Rav Chayim Ozer’s responsum, wrote him a letter disagreeing with his conclusion. The Devar Avraham contended the exact opposite: that since someone today may marry out of their religion, there is no longer anything to prove that the potential convert indeed accepted to observe mitzvos (Shu”t Devar Avraham 3:28). This is based on the approach, quoted above in the name of the Ritva and the Nimukei Yosef, that kabbalas mitzvos that is not completely sincere, but is somewhat compelled by the desire to marry this particular individual, is acceptable only when there is no other way for him or her to marry this particular spouse.

Hillel

We are all familiar with the famous stories of Hillel, which present a halachic conundrum with very differing resolutions. Let me review the situations as they are presented by the Gemara: Three different non-Jews approached Hillel, the first requesting that he convert him on condition that Hillel teach him only the Written Torah and stating that he rejects the authenticity of the Oral Torah. The second requested that Hillel convert him on condition that Hillel teach him the entire Torah while the convert would remain standing on one foot, and the third, on condition that he can become the kohein gadol. Hillel accepted all of them as righteous converts (Shabbos 31a), and then convinced them to study the rest of the Torah.

This Gemara presents a very great difficulty. In what way did any of these converts accept the Torah? The first one certainly did not – he only accepted the authenticity of the Written Torah; therefore, his conversion should be invalid.

Tosafos (to Yevamos 109b s.v. Ra’ah) answers that Hillel realized that all three of these gentlemen were sincere and would keep the entire Torah.

The Maharsha (Shabbos 31a) understands that Hillel did not convert these three men immediately, but accepted them as students to teach them Torah. In his opinion, it is permitted to teach Torah to an individual interested in converting, since its purpose is to enable him or her to observe mitzvos properly as a Jew.

On the other hand, Rabbi Akiva Eiger holds that Hillel converted the three of them immediately, and only after they were halachically Jewish was he permitted to teach them Torah, In his opinion, it is forbidden to teach Torah to a non-Jew simply because he is in the process of conversion.

Thus, our opening third question —  May I teach Torah to someone who is interested in becoming Jewish? – is a dispute among these acharonim.

Common practice is to follow the Maharsha’s approach. Therefore, if the beis din is convinced of the sincerity of a potential convert, they will usually recommend an appropriate program whereby he or she can learn about Judaism and become knowledgeable in mitzvah observance and proper Torah perspective, to prepare them for their eventual conversion to Judaism.

Typical anecdotes

I shall now present to our readers various situations thatI know of concerning potential converts.

Tom

Tom was converted by a non-Orthodox rabbi because his father wanted him to be of his own religion and not that of his mother. At one point in Hebrew school, he mentioned his Judaic origins to one of his teachers – who happened to be Orthodox. At a discreet time, the teacher told him that how to live his life was his own decision, but he should be aware that his conversion would not be recognized by an Orthodox Jew, or by the State of Israel, to allow him to marry someone Jewish. When he got older and began searching for authentic Yiddishkeit, he remembered being told that his status as a Jew was questionable, at best. He found a proper beis din for conversion and persuaded them that he was seriously interested in observing the Torah and becoming halachically Jewish. He then underwent a proper geirus. Subsequently, he was set up on a shidduch with a ba’alas teshuvah, and they have built a Torah family together. By the way, he no longer goes by the name of Tom.

Manny

Manny’s mother and younger siblings underwent conversion when his sibs were all under the age of twelve. Manny, who eventually became fully frum, was already a teenager at the time of the conversion and also went through the conversion process, although he later reported that he did not believe that he accepted mitzvos at the time of the conversion, but simply pretended to join the family. Now an adult and observant, he wonders whether he should perform a new geirus.

According to Rav Kook’s opinion that I presented above, he is certainly Jewish and has no need to undergo any further conversion procedure. According to Rav Chayim Ozer, it is unclear whether he is Jewish, since he attests to the possibility that his conversion was invalid, since he did not really accept mitzvos at the time of his conversion. For this reason, the conclusion was that he should undergo another geirus to remove any doubt as to his status. Manny underwent the second geirus procedure, without reciting a brocha upon his immersion.

Jennifer

Jennifer has two Jewish grandfathers, but both of her grandmothers are not Jewish. Raised to consider herself Jewish, she keeps a kosher home, no small undertaking in the community in which she lives. She scheduled an appointment with a rabbi about an Orthodox conversion. The rabbi, yours truly, told her what observing Torah entails, and also shared with her that it would be virtually impossible for her to observe Judaism all by herself. Realistically, she would need to relocate to a place where she can live an Orthodox lifestyle, within an Orthodox community. Not surprisingly, the rabbi never heard from her again. This is exactly what is meant when we say that we discourage potential converts.

Iliana

When Iliana became interested in joining the Jewish people, she went to the first rabbi she found, not realizing that not all rabbis are Orthodox, and not even knowing what is meant by Orthodox Judaism. After undergoing a non-Orthodox “conversion,” which did not require any acceptance of mitzvos, she realized that this was not the type of being Jewish she wanted. She found a rabbi who had her accept mitzvos and granted her a conversion certificate. However, once she became part of a Jewish community and became engaged, she and her chosson discovered that the rabbi who had issued her the “certificate” was completely unknown to all the rabbis they approached. At this point, she underwent a third conversion with a recognized rav to facilitate her marriage and the acceptance of her children as Jewish.

Conclusion

Throughout the years, I have met many sincere geirim and have been truly impressed by their dedication to Torah and mitzvos. Hearing about the journey to find truth that brought them to Judaism is truly fascinating. What would cause a gentile to join the Jewish people, risk confronting the brunt of anti-Semitism, while at the same time being uncertain that Jews will accept him? Sincere converts are drawn by the truth of Torah and a desire to be part of the Chosen People. They know that they can follow the will of Hashem by doing seven mitzvos, but they insist on choosing an all-encompassing Torah lifestyle. A geir tzedek should be treated with tremendous love and respect. Indeed, the Torah gives us a special mitzvah, repeated many times in the Torah, to “Love the Geir,” and we daven for them, daily, in our Shemoneh Esrei!

Geneivas Da’as

Question #1: “Stealing” Minds

How do you “steal someone’s mind”? Is that like borrowing his brains?

Question #2: Potential Guests

May I invite someone for a meal, knowing that he always declines invitations?

Question #3: Mistaken Identity

Someone donated money to our organization, but it is clear that she did not realize what we do. Must I bring this to her attention?

Question #4: Permission to Deceive

Am I ever permitted to be deceptive?

Introduction

When someone deceives his fellowman, he may violate two different prohibitions of the Torah. The first is called ona’ah, cheating or taking unfair advantage. Selling something that is definitely worth less than the money received qualifies as ona’ah that the Torah forbids. This includes selling merchandise that is defective in a non-obvious way, or engaging in a transaction on the basis of insider information. It also includes over-presenting a product or disguising its blemishes.

In most circumstances, if ona’ah was violated, the cheated party has a halachic right to get his money back or to be compensated the difference in value. There are many more details concerning the prohibition of ona’ah, which I discussed in a previous article, How Much May I Charge.

Geneivas da’as

This article will deal with a different form of deception called geneivas da’as, literally “stealing a mind.” This means that a person misleads someone else concerning a matter or item. This is prohibited, even when the deceived party does not lose money or value as a result. It applies even in non-financial matters; intentionally misleading someone is prohibited as geneivas da’as.

There are several halachic differences between ona’ah and geneivas da’as. As I mentioned above, if a situation violates ona’ah, the cheated party may be entitled to invalidate the entire sale, or to receive back the amount of the deception. (In some instances when the amount of deception is small relative to the value of the sale, halacha does not require restitution. I refer you to the above-referenced article.) On the other hand, geneivas da’as does not require restitution, since there was no direct financial benefit as a result of the deception that occurred.

Here are a few examples of geneivas da’as:

Deception without cheating

1. The deceiver convinces his customer that the item has a benefit that it does not have. This is forbidden, even though the feature does not increase the item’s sale value.

2. Misleading a customer to think that he is getting a bargain, when he is buying something at its correct price, is geneivas da’as. In other words, it is prohibited to tell someone that the item is being sold at a discount, when the purchaser is paying the actual worth of the merchandise. There is deception going on, even though there is no cheating. Notwithstanding that the buyer is not losing any money, he is still being deceived, and this is a violation of geneivas da’as.

A purchaser may also violate geneivas da’as, if he attempts to convince the seller that the item is worth less than it really is. Also, note that there might be a prohibition of ona’ah if your customer assumes the product to be higher quality than it is, and therefore, agrees to a price that is inappropriately high.

Donations

3. Here is another instance that involves geneivas da’as: someone donated money to tzedakah, specifically requesting that the money be used for a particular cause, but the money is instead diverted to a different purpose. For example, taking funds earmarked to help destitute Torah scholars and using the money for people who are not scholars or not even observant of mitzvos involves geneivas da’as (Orach Meisharim 24:7). Since this is a violation of geneivas da’as, it applies equally if the donor is non-Jewish.

However, if the use is included in the term the donor expressed when he made his donation, it is not geneivas da’as. For this reason, we can explain the famous, although possibly apocryphal, anecdote attributed to the Ponevitzer Rav. A person who was not observant made a large donation to theRav, specifying that the money be used for Torah study by students who would not be wearing yarmulkas. The Ravused the money to fund a Beis Yaakov, which certainly met the requirements as expressed by the donor, although it may not have been what he intended.

Similarly, it is said that the Klausenberger Rav, who did not accept donations for his Torah mosados from individuals who were not Shomrei Shabbos, accepted donations from non-observant individuals for his “institutions,” and used the funds for Laniado Hospital.

Mezuzah for a gentile

Rav Moshe Feinstein rules that the following case is an example of geneivas da’as: A gentile asked his Jewish landlord to place a mezuzah on the gentile’s door. Rav Moshe prohibits placing an invalid mezuzah on the door, because of geneivas da’as (Shu”t Igros Moshe, Yoreh Deah 1:184).

Giddin and gentiles

In parshas Vayishlach, the Torah teaches us the mitzvah of gid hanasheh, the prohibition of eating the sciatic nerve, which runs along and over the thigh bone. The Mishnah (Chullin 93b) states that it is permitted to send the leg portion of a shechted animal to a non-Jew with the gid hanasheh intact, because it is obvious that it is there. The Gemara is highly curious as to what the Mishnah is trying to teach. There is nothing wrong with a non-Jew eating gid hanasheh, since this is not one of the mitzvos which he is commanded. If the concern is that the non-Jew may sell the meat to a Jew who does not realize that the gid hanasheh is still there, why would a Jew be purchasing unmarked meat from a non-Jew?

After the Gemara presents several attempts to explain the Mishnah, the Gemara concludes that the Mishnah is teaching us about geneivas da’as. It is prohibited to mislead the non-Jew into thinking that you are selling him a portion of meat in which the gid hanasheh has already been removed, notwithstanding that this piece of information is basically irrelevant to him. Although the removal of the gid does not create any greater value to the non-Jew, he should not be given the impression that you sold him a product that had greater value to the Jewish seller than it really did.

Although this level of deception is not considered ona’ah (because it makes no financial difference to the purchaser), it is still prohibited as geneivas da’as, because the purchaser feels a small level of obligation, thinking that he received a product that had more value to the seller than to him, when indeed this was not true. In some future matter, he might decide to give you something to which you are not entitled, because he feels an unjustified sense of obligation to you.

Shemuel’s crossing

Once, the great amora, Shemuel, while traveling, crossed a river on a ferryboat. He asked his attendant to pay the ferry master for their fares. The attendant bartered with the ferry master, and gave him a slaughtered chicken as payment, implying that this chicken was kosher, when it was not. This act on the part of his attendant irked Shemuel, since this was an act of geneivas da’as. Notwithstanding that, to the non-Jewish ferry master, kosher and non-kosher chicken have the identical value, leading him to think that the chicken was properly kosher when it was not implies that you are giving the non-Jew something more valuable (from your perspective) than it was.

Thus, we see that giving someone an impression that you are doing him a bigger favor than you actually are violates geneivas da’as. However, we should note that most authorities contend that you violate geneivas da’as only when you say or do something that misleads the other person, but if you acted as you typically would, and there is no reason for him to think that you are misleading him, you are not in any violation.

Therefore, if the other person deceives himself, there is no violation of geneivas da’as. An example of this is when a person assumes that you attended an event specifically in his honor, but you work in that neighborhood where the event took place. Since younever said or implied that you made the trip especially for him, this is not geneivas da’as. Geneivas da’as is only if you say or do something that might lead him to such a self-deception. Therefore, it is forbidden to imply to someone that you made a special trip to attend his simcha, when, in fact, you had to be in that area anyway.

Two concerns

Geneivas da’as involves two concerns, one for the deceived party and the other for the deceiver.

It is also damaging to the individual who does the deceiving because he habituates himself to live with untruth. Of course, this affects his neshamah, and a person must train himself to live with truth.

This might be a reason why the Rambam discusses the laws of geneivas da’as in two different places: in Hilchos Dei’os (2:6), where he usually discusses how we are to develop our personalities in a Torah way, and in Hilchos Mechirah (18:1), where he discusses the laws of business honesty and ona’ah.

Non-business

The Gemara mentions several instances of geneivas da’as that have nothing to do with financial matters. An example of this is begging someone repeatedly to join you for a meal, when you do not really want him to come, and you are inviting him because you know that he will turn down the invitation (Chullin 94a). This is prohibited because the invited party feels some level of obligation to reciprocate this false invitation, and it also trains the inviter to act falsely, pretending that he wants to have this guest when he does not. Similarly, it is forbidden to send someone gifts repeatedly knowing that he does not accept them. The giver wants the intended recipient to feel indebted to him, without it costing the giver anything.

At this point, let us discuss the second of our opening questions: “May I invite someone for a meal, knowing that he always declines invitations?”

If I truly want him to visit me, there is no violation of geneivas da’as. If I don’t necessarily want him to visit, I may invite him a few times to show my respect for him. However, once he has made it clear that he does not want to accept the invitation, I should invite him only if I truly want him to come. We will also see, shortly, that if I feel that people are not showing him proper respect, I may continue to invite him (even if I don’t really want him to come), if I feel that this may influence others to respect him.

The charlatan

Here are a few more examples of geneivas da’as:

Someone who acts as a big tzadik in front of people, but is, in private, not halachically meticulous (Tosafos, Bechoros 31a s.v. vechulan and s.v. ika). This display of righteousness is a form of deception (see Sotah 21b; 22b).

Implying to someone that you did something special for him when you didn’t.

Acting as if you are someone’s best buddy, but your intention is for something else. You are misleading him to think that you are his friend. In other words, where someone is אחד בפה ואחד בלב, his actions or verbal statements imply one goal, but his heart has a different goal, he is in violation of geneivas da’as (Orach Meisharim).

Why is it called geneivas da’as?

Geneivas da’as, literally, “stealing a mind,” means creating a false impression – that is, deluding a person, i.e., giving him a false perception of reality. The Gemara (Chullin 94a) rules asur lignov da’as ha’beriyos, “it is prohibited to steal someone’s mind.”

At this point, we can address the opening question: How do you ‘steal someone’s mind?’ Is that like borrowing his brains?

No, it is not. Geneivas da’as, which can literally be translated as “stealing his mind,” means to mislead or deceive him, even when the misled party is not losing anything material as a result. Simply leaving him with a wrong impression violates the prohibition.

Mistaken identity

At this point, we can begin discussing the third of our opening questions: “Someone donated money to our organization, but it is clear that she did not realize what we do. Must I bring this to her attention?”

I was once faced with this type of situation. Let me present what happened: A school that I taught in asked me to visit a gentleman who had, a few years before, made a very generous donation. After a bit of work locating him and being able to schedule an appointment with him, it was quite clear to me that he was confusing me with someone else, and that he might have been confusing the school’s program with that of another institution. In other words, there seemed to be a case of mistaken identity. Was I required to call this to his attention?

Anyone who has this question should address it to his own rav or posek. I can tell you what I did under the circumstances, which was a split-second decision without any opportunity either to research the shaylah or to discuss it with anyone.

First of all, I had not tried to deceive the potential donor. I had been supplied with accurate information that he had made a few very large donations, and that the school had tried to be in touch with him several times, unsuccessfully, in recent years. None of this involved any deception.

I presented to him many of the special, and perhaps unique, features of our institution and emphasized aspects that I thought would attract him to make another substantive donation to our cause. None of this involved any deception.

At some point in the conversation, it became clear to me that he was confusing me with someone else whom he had met previously. To this day, I do not know with whom he was confusing me, but I certainly made no attempt to create any deception.

I neither denied nor sustained his assumption that we had met before. I simply noted that he had made very significant donations in the past, and that we were hoping he would be interested in continuing the relationship.

In short, I think I handled the situation in a way that was completely honorable from a halachic perspective.

I am sure that our readers want to know if the organization actually did receive the hoped-for donation. Unfortunately, it did not.

Permission to deceive

At this point, let us discuss the last of our opening questions: “Am I ever permitted to be deceptive?”

Notwithstanding that geneivas da’as is forbidden, and it appears that most rishonim prohibit it min haTorah, there are a few instances that may appear as if they are geneivas da’as, but are permitted halachically. In other words, although they appear to be geneivas da’as, they are not.

One situation is when you do something that otherwise would be geneivas da’as, such as, you tell people that a person is a greater Torah scholar than he really is, because your goal is that others will treat him with the respect that he deserves.

Dealing in kind

There is another instance in which halacha permits someone to overlook the geneivas da’as that will result. When dealing with someone dishonest, it is permitted to act deceitfully, if it is necessary to protect yourself. For this reason, it was permitted for Shimon and Levi to deal deceitfully with Shechem.

Conclusion

The Gemara tells us that the great tanna, Rabbi Yehoshua, the rebbe of Rabbi Akiva, was asked: “What is the best means to become wealthy?” Rabbi Yehoshua advised that, aside from being very careful in one’s business dealings, the most important factor is to daven to He Who owns all wealth (Niddah 70b). A Jew must realize that Hashem’s Torah and His awareness and supervision of our fate is all-encompassing. Making this realization an integral part of our thinking is the true benchmark of how His kedusha influences our lives.

The true believer in Hashem and His Torah understands that every aspect of his life is directed by Hashem, and that the only procedures we follow in any part of our lives are those that the Torah sanctions.

Twilight

Question #1: Why then?

“After sunset on a Friday evening, may I ask a non-Jewish person to turn on the lights?”

Question #2: Until when?

“May I toivel dishes, glasses and silverware during the same twilight period?”

Question #3: Challah

“May I separate challah during bein hashemashos?”

Introduction: Twilight laws

As we are all aware, the halachic day begins and ends at nightfall. But at what exact moment does one day march off into history and its successor arrive with its banner unfurled? Is it before sunset, at sunset, when the stars appear, or dependent on some other factor? And, if a day begins when the stars appear, which stars and how many? Does the amount of time after sunset vary according to longitude and/or season of the year? And does it, perhaps, vary according to the amount of humidity in the atmosphere?

There is much discussion in the Gemara and the poskim concerning many of these issues, some of which I have written about previously. This article will discuss the halachic rules that apply during the period of time called bein hashemashos, which is the term used to refer to the twilight interval when we are uncertain whether it is still day or already night. Of particular concern is what is the halacha of this time on Friday evening, when it is unclear whether or not Shabbos has already begun. Does bein hashemashos have the exact same halachic status as the time that is definitely Shabbos, or does its questionable status allow any lenience? The answer is that, under extenuating circumstances, some lenience is allowed. We will see that the definition of “extenuating” for these purposes is rather moderate.

The earliest sources

In several places, the Mishnah, the Gemara and the poskim explain that certain activities that are prohibited on Shabbos are permitted during bein hashemashos of Friday evening. We will begin our research with a Mishnah (Shabbos 34a) that many recite every Friday evening in shul, as the last passage in Bameh Madlikin. There, it teaches: If it is in doubt whether nightfall has already arrived, it is forbidden to separate maaser from produce, when we are certain that it was not yet separated. (Such untithed produce is referred to as tevel.) It is also prohibited to immerse vessels to make them tahor. (Unfortunately, since we are all tamei today, this question is not relevant, but we will soon discuss whether immersing vessels used for food that were previously owned by a non-Jew is permitted during bein hashemashos.) The Mishnah also prohibits kindling lights during bein hashemashos. However, it permits separating maaser from demai produce, about which it is uncertain whether this separation is required. It is permitted during bein hashemashos to make an eiruv chatzeiros, which allows carrying from one’s house to a neighbor’s house on Shabbos. The Mishnah also permits insulating food, hatmanah, using something that does not increase heat (such as clothing), notwithstanding that this is prohibited on Shabbos.

As we will see shortly, there is much discussion among rishonim and early poskim whether we rule according to the conclusions of this Mishnah, or whether we rule more leniently. But first, we need to understand each of the halachic issues that the Mishnah mentions. For example, what is wrong with separating maasros, even on Shabbos itself? Which melacha of Shabbos does this violate?

Maasering

The Mishnah (Beitzah 36b) prohibits separating maasros on Yom Tov, and certainly on Shabbos. The reason for this prohibition is that, since it makes the food edible halachically, it is viewed as a form of forbidden “repair work.”

Demai has an in-between status. What is demai? In the times of Chazal, observant but poorly educated Jews observed the mitzvos, although some of them would occasionally “cut corners,” violating details of halachos that involve major expense. These people, called amei ha’aretz, were lax predominantly regarding three areas of halacha –the laws of shemittah, the laws of tumah and taharah, and the laws of separating maasros. Although most amei ha’aretz indeed separated maasros faithfully, Chazal instituted that produce purchased from an am ha’aratz should have maaser separated from it, albeit without first reciting the brocha for taking maaser. This produce was called demai, and the institution of this takkanah was because it was difficult to ascertain which amei ha’aretz were separating maasros and which were not. Thus, we treat this produce as a type of safek tevel. For this reason, the brocha for separating maasros was omitted prior to separating maaser from demai because, indeed, most amei ha’aretz separated maasros. In addition, because most amei ha’aretz separated maasros, Chazal allowed other leniencies pertaining to its use; for example, they permitted serving demai produce to the poor or to soldiers in the army.

Because there is a great deal of reason to be lenient relative to demai, the Mishnah permitted separating maasros from it during bein hashemashos (Shabbos 34a). The reason this is permitted is because this separation may not actually be “fixing” anything – it is more than likely that the maasros were already separated.

Immersing utensils

During bein hashemashos, the Mishnah permitted immersing vessels and other items that had previously become tamei. This immersion is prohibited on Shabbos or Yom Tov, itself, as mentioned in Mesechta Beitzah (Mishnah 17b and Gemara ad loc.). There, the Gemara (Beitzah 18a) cites a four-way dispute why it is prohibited to immerse vessels to make them tahor on Shabbos or Yom Tov. The four reasons are:

1. Someone immersing vessels on Shabbos may inadvertently carry them through a public area. According to this opinion, immersing vessels on Yom Tov was prohibited as an extension of the prohibition of Shabbos.

2. Clothing and cloth that became tamei, and was then toiveled on Shabbos or Yom Tov, could cause someone to squeeze out the water. According to this opinion, immersing pots, plates, silverware and other items that do not absorb water was prohibited as an extension of the prohibition to immerse cloth and other squeezable items.

3. Knowing that someone has time to toivel vessels on Shabbos or Yom Tov, the owner might delay toiveling them until then. This procrastination might then result in foods or other vessels becoming tamei. Banning the immersions on Shabbos or Yom Tov would cause people to immerse the vessels at an earlier opportunity.

4. Immersing vessels to make them usable is considered “repairing” them on Shabbos or Yom Tov.

The rishonim disagree how we rule in this dispute: in other words, which of the four reasons is accepted (see Rif, Rosh, etc.). There are halachic ramifications of this dispute. Although immersing vessels to make them tahor is not a germane topic today, since we are all tamei anyway, the question is raised whether vessels acquired from a non-Jew, which require immersion in a mikveh prior to use, may be immersed on Shabbos and Yom Tov. When we look at the reasons mentioned by the Gemara why Chazal forbade immersing tamei vessels on Shabbos and Yom Tov, we can conclude that some of the reasons should definitely apply to the immersing of vessels for this latter reason, whereas others might not. The Rosh concludes that it is prohibited on Shabbos and Yom Tov to immerse vessels acquired from a non-Jew. (See, however, Shaagas Aryeh #56.) We will discuss shortly whether one can immerse them during bein hashemashos.

Kindling lights

During bein hashemashos, any Torah prohibition cannot be performed because of safek de’oraysa lechumrah, the rule that cases of doubt regarding Torah prohibitions are treated stringently. The Mishnah’s example of this is kindling lights, which is certainly forbidden during bein hashemashos.

Hatmanah — Insulating food

The Gemara explains that the Mishnah’s last ruling, insulating food, is permitted bein hashemashos because of a specific reason applicable only to its case. Since explaining the details of this rabbinic injunction, called hatmanah, would take us far afield, we will forgo that discussion in this article.


Rebbe and the Rabbanan

Up until this point, I have been explaining the Mishnah in Bameh Madlikin. However, elsewhere, the Gemara (Eruvin 32b) cites a dispute between Rebbe and the Rabbanan, in which Rebbe contends that all rabbinic prohibitions may be performed during the bein hashemashos period, whereas the Rabbanan prohibit this. The obvious reading of the Mishnah in Bameh Madlikin is that it follows the approach of the Rabbanan who prohibit performing most rabbinically prohibited acts during the bein hashemashos period, and, indeed, this is how Rashi explains that Mishnah. However, the Gemara (Eruvin 32b-34b) demonstrates that the Mishnah there in Eruvin follows the opinion of Rebbe. On its own, this is not a halachic concern, since there are instances in which different Mishnayos follow the opinions of different tana’im. The practical question that needs to be decided is whether we indeed rule according to the Rabbanan’s position as stated in the Mishnah in Bameh Madlikin, or whether we follow Rebbe’s more lenient ruling. The conclusion of the Gemara in Eruvin implies that the halacha follows the opinion of Rebbe, and not that of the Rabbanan.

Among the rishonim, we find variant halachic conclusions regarding this question (Rashi, Shabbos 34a s.v. safek; Rambam, Hilchos Shabbos 24:10 and Hilchos Eruvin 6:9; Tur Orach Chayim 342; Beis Yosef Orach Chayim 261 and 342). The Shulchan Aruch (Orach Chayim 342) concludes according to the Rambam’s opinion, ruling that during bein hashemashos Chazal did not forbid anything that is prohibited because of a rabbinic injunction, provided that there is some mitzvah involved or that there were extenuating reasons why it was not performed on erev Shabbos. The Shulchan Aruch mentions, specifically, that it is permitted during bein hashemashos to climb a tree on Rosh Hashanah to get a shofar in order to perform the mitzvah, although it is prohibited to climb a tree on Yom Tov itself even if, as a result, you will be unable to blow shofar. Returning to our first question (“After sunset on a Friday evening, may I ask a non-Jewish person to turn on the lights?”, the Shulchan Aruch also permits asking a non-Jew to kindle a light during bein hashemashos. The Mishnah Berurah 261:17 permits asking him, even if you already accepted Shabbos.

Similarly, the Magen Avraham (261:6) permits separating maasros during bein hashemashos, if you do not have enough food ready for Shabbos. (The Ketzos Hashulchan [75:5, 6 in Badei Hashulchan] explains that the situation is such that he does not have enough fruit or vegetables to have an enjoyable Shabbos meal.) It is very interesting that the Magen Avraham permits this, because the Mishnah at the end of Bameh Madlikin thatwe quoted above expressly prohibits separating maasros during bein hashemashos. Nevertheless, the Magen Avraham permits this separating of maasros, since we rule according to Rebbe, not like the Mishnah.

Toiveling during bein hashemashos

With this background, let us examine the second of our opening questions: is it permitted during the bein hashemashos period to toivel dishes, glasses and silverware purchased from a non-Jew? Assuming we conclude, like the Rosh does, that it is prohibited to toivel these items on Shabbos or Yom Tov, which is the common practice, someone who has no others to use on Shabbos or Yom Tov may toivel them during bein hashemashos (Magen Avraham 261:6).

Separating challah

There is much discussion among halachic authorities whether it is permitted to separate challah during bein hashemashos, if you realize that you forgot to do so before. As we will see shortly, the Magen Avraham (261:2) prohibits separating challah bein hashemashos, whereas other authorities qualify this. To explain their halachic conclusions, we need to provide some background to the laws of separating challah.

Although people are often surprised to discover this, challah is categorized under the mitzvos ha’teluyos ba’aretz, the agricultural mitzvos that apply min haTorah only in Eretz Yisroel. The requirement of separating challah from dough made in chutz la’aretz is a rabbinic requirement. However, when implementing this requirement, Chazal instructed that the mitzvah be performed in a different way from how it is observed in Eretz Yisroel. Dough made in Eretz Yisroel that has not yet had its challah portion separated has the halachic status of tevel and may not be eaten. Dough made in chutz la’aretz does not become tevel. There is a mitzvah to separate challah, but this mitzvah can be fulfilled even after most of the dough has been eaten.

Therefore, should one realize on Shabbos that challah was not separated from dough made in Eretz Yisroel, the bread cannot be eaten because it is tevel. However, if the dough was made in chutz la’aretz, the bread can be eaten on Shabbos, and the challah separated after Shabbos. To do this, you must make sure that you keep some of the bread until after Shabbos, and then separate challah from what was set aside.

Reverse the law

The result of this halacha is that dough produced in chutz la’aretz does not require that its challah is separated in order to permit eating it on Shabbos, whereas dough produced in Eretz Yisroel does. We therefore have an anomalous conclusion regarding whether the challah may be separated during bein hashemashos. Challah may not be separated from dough made in chutz la’aretz, because you can wait to separate the challah until after Shabbos. The later authorities explain that this is the intention of the ruling of the Magen Avraham (261:2). However, when the dough was prepared in Eretz Yisroel and challah was not taken, it will be forbidden to eat the bread on Shabbos. Therefore, when you realize that you forgot to separate challah, and you are relying on that bread for your Shabbos meals, you may separate the challah during bein hashemashos (Machatzis Hashekel 261:2; Pri Megadim, Eishel Avraham 261:2; Mishnah Berurah 261:4).

We can now address the third of our opening questions: “May I separate challah during bein hashemashos?” The answer is that if the dough was mixed in chutz la’aretz, I may not, but I may eat the baked bread during Shabbos, as long as I leave some of it for after Shabbos and then separate challah retroactively. On the other hand, if the dough was made in Eretz Yisroel, I may therefore not eat it without first separating challah, and I may separate the challah during bein hashemashos.

In conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this instance, we see that Chazal provided lenience to permit otherwise prohibited activities to be done during the bein hashemashos period.

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

Is a Position Inherited?

Question #1: The inherited shofar

“Our shul’s longstanding shofar blower passed on. Are we required to appoint his son, when we would prefer to appoint a different master blaster?”

Question #2: I’d like a change!

“Is there a halachic reason why, in some communities, people hold their appointments on shul and school boards forever, whereas, in other communities, these positions are constantly rotated?”

Question #3: Long live the Rabbi!

“When a rav passes on, does his son have a claim to the position?”

Answer:

In several places, Chazal derive that a son qualified for a communal appointment held by his father inherits the position (Horiyos 11b; Kesubos 103b; Sifrei, Devorim 17:20). To quote the Rambam’s halachic ruling on the topic: When the king, the kohen gadol, or a different appointee dies, we appoint, in his stead, his son or someone else who would inherit from him. Whoever would be first to inherit from him comes first for the position of the deceased, provided he is a valid substitute… the same is true for any appointment in the Jewish people — one who receives it does so for himself and his descendants (Hilchos Klei Hamikdash 4:20).

The Rambam mentions this law a second time,in which he explains in more detail what is meant by saying that the son is a “valid substitute”: whoever has a prior right germane to receive inheritance has a prior right for inheriting the monarchy… not only the kingship, but any other position of authority and any other appointment in Israel is an inheritance for his son and his son’s son, forever, provided that the son fills the place of his father in wisdom and fear of G-d. If he meets the standard in fear of G-d, but not in wisdom, we appoint him and then teach him. However, anyone lacking in fear of G-d, even if he is very wise, is not appointed to any position in Israel (Hilchos Melachim 1:7).

Retiring chazzan

One of the earliest surviving responsa related to this question was penned hundreds of years ago, when the Rashba was asked about the following case (Shu”t HaRashba 1:300). A chazzan/baal keriyah had been serving a community faithfully for 38 years, a position that he inherited from his father, who had inherited the position from his father. The current chazzan’s vision is now somewhat impaired, making it difficult for him to be the baal keriyah, and he has been having his son function as baal keriyah and also as community secretary and scribe, which apparently were other responsibilities included in the position. Some members of the community are dissatisfied with the new arrangements — they feel that the son does not have as nice a voice as his father. They are requesting that either the chazzan fulfill all the requirements of his position, or that he retire and allow the community to hire a new chazzan, who can perform to their specifications. When the community hired this chazzan over a generation before, he was able to perform all his tasks admirably. They are still satisfied with his skills as a chazzan, and they would not request that he step down, as long as he can fulfill his job. However, they feel that they did not hire his replacement, and they are dissatisfied with the son’s voice, which is not as melodious as that of his father.

For his part, the chazzan notes that he has a life contract with the community, which states that no one can take his place at any of his tasks without his permission. Furthermore, he claims that most of the 150 members of the community are willing to have his son help him in the areas that are now difficult for him, whereas only about ten members voice disapproval of the new arrangement. Each of the two sides in the dispute presented its position to the Rashba to rule on the case via correspondence. We are highly grateful that they chose this specific method of dealing with their litigation, because it provides a written record of the case and the Rashba’s detailed decision. Based on what we have seen so far, how would you rule?

The ruling

The Rashba sided with the chazzan for three different reasons:

First, when you hire someone for a position as chazzan, it is self understood that he will occasionally need someone to substitute for him, either because he is ill or needs to be out of town. The Rashba rules that it is within the authority of the chazzan to choose who should serve as his substitute, assuming that he chooses someone who can do an adequate job. (A later authority, the Keneses Hagedolah, notes that there is another requirement – the substitute is G-d-fearing enough to fill the position [quoted by the Mishnah Berurah 53:84].)

Second reason of Rashba

A second reason why the Rashba rules in favor of the chazzan is that the contract states that the community cannot have someone else take his place without his agreement. This implies that the chazzan has the authority, at his option, to choose someone to assist him in carrying out his responsibilities.

The Rashba does not make any distinction between having someone substitute for the chazzan on an occasional basis and having someone assume some of his responsibilities permanently. In both instances, he considers it the right of the chazzan to assign part of this job to someone else, provided the assignee can perform the job adequately. It is not necessary that the substitute or replacement perform the job at the same level as the chazzan himself.

The son’s right

The third reason the Rashba cites is that, should the chazzan no longer be able to fulfill his responsibilities, his son has the right to the position as long as he can perform the job adequately. It is not necessary that the son have a voice as melodious as that of his father, as long as he is G-d fearing enough to fulfill the position. It is, therefore, certainly true that the son has the right to assist the current chazzan ahead of anyone else. Some later authorities rule that the son does not have a right to the position if his voice sounds strange (Magen Avraham 53:32).

To simplify: The Rashba’s first two reasons explain why the chazzan has a right to choose his own replacement, and the third reason explains why the son has the right to assume the chazzan’s responsibilities, ahead of any other candidate.

Choosing someone else

What would the Rashba hold if the different reasons are in conflict – meaning that the son would like to be his father’s replacement, but the father does not want him? The Rashba implies that, should the chazzan want to appoint someone other than his son to help him with his responsibilities, he may do so.

How do we rule?

The Rema (Orach Chayim 53:25) quotes this Rashba, but implies that he limits the right of the chazzan to appointing his son, and does not accept that the chazzan has the right to appoint someone else. The Mishnah Berurah explains as follows: There are indeed two different concepts that explain why the Rashba ruled according to the chazzan. One is that the chazzan has a right to appoint a substitute to assist him on an occasional basis, or to take over for him while he is away or ill. However, it may be that this right is his only when the substitute is temporarily fulfilling one of the chazzan’s responsibilities. It may not follow that the chazzan can appoint someone to replace him permanently in one of his roles. In this instance, that job would pass to the chazzan’s son. In the opinion of the Rema, when a permanent appointment is being made, the son has the right to the position, whereas the Rashba, himself, held that the chazzan has the right to appoint even someone other than his son on a permanent basis to assist him in his responsibilities. We will soon see a possible source for the Rema’s opinion.

Inherited his voice?

Why does the son of a chazzan have the right to inherit his father’s position? After all, when the chazzan died, he made his son into an orphan, not into a chazzan!

However, as we saw above, this halachah is in fact the case for any position in klal Yisroel: A son has the right to his father’s position, as long as he meets the basic requirements for the position.

Can the son sell the position?

To what extent does the son have the right to the position? Can he offer the position to someone else, and if so, can he do so even for payment?

An early authority, the Mordechai (Bava Kama 8:108), quoting a responsum from his rebbe, the Maharam Rottenberg, discusses this exact question. He rules that although a position of authority among the Jewish people is bequeathed to a son, the son does not have any right to give the position to someone else. He compares this to the rights of a kohen or a levi, which also are bequeathed to sons, but cannot be sold or transferred.

This is explained nicely by the Chasam Sofer (Shu”t Orach Chayim #12), who notes that a position, even of king of the Jewish people, is not inherited in the same way that one inherits property. According to the Torah, when a man dies, his sons automatically become the owners of his property. They do not require an authorization of a beis din, a court order, or a formal transfer of title – the property automatically becomes theirs. This is not the case regarding the inheriting of a position. The son does not automatically become king or kohen gadol – he must be appointed to the position. (Those interested in knowing how the kohen gadol is appointed should check the following sources: Tosafos, Zevachim 18a s.v. Hagah; Tosafos, Yoma 12b s.v. Kohein; Tosafos, Megillah 9b s.v. Velo; Aruch Hashulchan Ha’asid,Chapter 23.)

Source for the Rema

This Mordechai might be the source for the above-quoted Rema, who ruled that the chazzan may transfer some of his responsibilities to his son, but cannot appoint someone else instead of his son. The Rema accepted that it is understood that a position of chazzan will require that he occasionally needs someone to substitute, and that the choice of substitute may be left to the chazzan. But the chazzan does not own the position to the extent that he can transfer it to someone else permanently, either completely or partially.

Other reasons

Let us return to the original responsum of the Rashba, in which he ruled that the chazzan has the right to appoint his own substitute. The Rashba contends that, even without a contract, the community cannot replace the chazzan. In a different responsum (Shu”t Harashba 5:283), heprovides several reasons why a chazzan or anyone else in a community position has a right to keep his post. One reason is that halachah recognizes that, once someone has been fulfilling a communal role, he acquires a chazakah, the right of status quo, to keep the position, as long as there is no reason to disqualify him.

The Rashba presents a second reason why an appointee has the right to keep his position: because of darchei shalom. It reduces machlokes when people have an assumption that replacements are not made arbitrarily. Anyone who has lived in a community where this is not common practice can certainly attest to the strife created when a public servant’s contract is not renewed. (However, see Shu”t Maharalnach, quoted by Magen Avraham 53:32.)

A third reason why the person has the right to keep his position is because, if he is replaced, people may think that this was because of malfeasance. Maintaining him in the position protects his personal reputation.

Exceptions

Even the Rashba felt that there can be exceptions to his ruling – in other words, there are some instances in which one may be able to terminate a person’s tenure from a community position without that person having committed a malfeasance. The Rashba notes that there are places in which the recognized custom is that all positions are regularly rotated. In these communities, all appointments, whether salaried or voluntary, are temporary. He explains that since this is an accepted practice in these congregations, the reasons mentioned above why one may not remove someone from a position do not apply. Since everyone knows that his appointment is only temporary, no machlokes should result when a replacement is made. Similarly, no one will assume that an appointee was replaced because of malfeasance.

The later authorities note that this is true only when it is already an established custom in these places that appointments are always temporary and replacements are made at a specified time. However, when it is usual practice that people remain in their positions, one may not remove someone from his position, unless there was malfeasance (Shu”t Chemdas Shelomoh #7and Shu”t Chasam Sofer, Orach Chayim #206, both quoted by Mishnah Berurah 53:86). The Chasam Sofer allows another exception — when it was stipulated at the time of the original appointment that a new negotiation and appointment is necessary to renew the person’s appointment after his term is complete.

I’d like a change!

At this point, we can discuss one of our original questions:

“Is there a halachic reason why, in some communities, people hold their appointments on shul and school boards forever, whereas in other communities, these positions are constantly rotated?”

We now see that there is halachic basis both for the practice that in some communities that people remain in the position of shul or school president for long periods of time, whereas in other communities these positions are rotated on a regular basis.

A major exception?

Although we have noted that a son has a right to inherit his father’s position, several authorities contend that there is a major exception to this rule: a Torah position is not automatically inherited. One of the major advocates of this approach, the Chasam Sofer (Shu”t Chasam Sofer, Orach Chayim #12 and glosses to Orach Chayim end of 53), asked the following question: The Gemara (Yoma 72b) states that the position of kohen meshuach milchamah, the kohen anointed to provide encouragement and announce the halachos to the soldiers of the Jewish army, is not a hereditary position. Why is this position different from all the other appointments that we say are hereditary? The Chasam Sofer answers that there is a difference between positions of authority and religious positions. Positions of authority, such as king, do belong to the son, if he is qualified. However, there is no inheritance of religious positions, unless that is the accepted custom. (A similar view is stated by the Shu”t Maharashdam, Yoreh Deah #85.) The one exception to this rule is the position of kohen gadol, which the Torah says does go to the son, notwithstanding the fact that it is a religious position. Thus, the Rashba’s case in which the son inherits his father’s position as chazzan (a religious position) is only because that was the accepted custom.

The Chasam Sofer rallies support for his approach based on the fact that the positions of nasi and head of the Sanhedrin did not usually pass from father to son, but instead passed to the most qualified scholar. Only the nesi’im from Hillel and onward passed the position from father to son. The Chasam Sofer explains that from the time of Hillel until the Sanhedrin disbanded, the nasi of the Sanhedrin was also viewed as the “king” of the Jewish people, thus making it a position of authority and not merely religious. During this era, the position was bequeathed to the oldest son of the previous nasi, if he was G-d-fearing and enough of a scholar to fulfill his duties. However, prior to this era, the position was viewed only as a religious role and, therefore, it was assigned to the greatest scholar in the Jewish people.

Based on his analysis, the Chasam Sofer concludes that the son of a deceased rav does not automatically have the right to the position. If most of the tzibur does not want him, they have a right to pick any other qualified G-d-fearing Torah scholar who is qualified enough to rule on the community’s needs. They are not required to choose the most qualified talmid chacham for the position. For example, they may choose a person who is a stronger leader over a bigger talmid chacham who does not have the same leadership abilities.

The Chasam Sofer closes his responsum with the following proof to his position: The Midrash, quoted by Rashi, states that when Moshe Rabbeinu asked Hashem to appoint a leader to head the Bnei Yisroel, he wanted his sons to be his replacement. Obviously, his sons had all the qualities that Moshe felt were necessary for the position – otherwise, why would he have thought that they should qualify? Yet, Hashem chose Yehoshua for other reasons. Thus, we see that the position of Torah leader over the Jewish people is not an inherited one.

Conclusion

When the Mishnah Berurah (53:83) discusses this matter, he cites the opinions we have mentioned without ruling on the matter. Thus, an individual congregation will need to ask a shaylah whether a son has the right to father’s position, where there is no established minhag and the community would like to appoint someone else.

Avraham’s Prophecy

Question #1: Vayeira

How could Avraham Avinu attend to his guests if he was in the midst of a prophetic trance?

Question #2: Kesuvim

What is the difference between Nevi’im and Kesuvim?

Question #3: Tehillim

Is Tehillim prophetic?

Parshas Vayeira

Parshas Vayeira begins with Hashem appearing to Avraham. When a navi, Avraham included, receives a prophecy, he is in a prophetic trance or a dreamlike state, as we will see later in the words of the Rambam regarding prophecy. Yet, the very next posuk has Avraham seeing travelers, racing out to invite them into his tent, cooking and serving them a meal, and carrying on conversation with them. How could he do this if he was in the middle of having a prophetic vision?

The answer to this question involves a dispute among rishonim. According to Rashi, the Ramban, the Ritva and the vast majority of rishonim, it seems that receiving a prophecy did not preclude Avraham Avinu from requesting permission of Hashem to leave his prophetic state in order to attend to the visitors. This is explained by Chazal as: Gedolah hachnasas orchim mei’hakbolas penei ShechinaBringing in guests is greater than receiving the Divine presence (Shabbos 127a; Shavuos 35b). This is based on the observation of what Avraham did. This should seem similar to someone who is on the telephone with “The Rosh Yeshivah (or “The Boss”) and says to Him, “Can G-d please hold the telephone line for a moment; I have guests to entertain!” This may sound strange to us – is it not greater to receive Hashem’s presence than to receive common people?

The answer is that it is more important that we emulate what Hashem does — in this case, make sure that wanderers have a place to rest, wash and eat (and, if necessary, sleep), all of which reflects what Hashem does for the entire world daily — than it is to receive communication from Hashem on the level that a prophet does.

On the other hand, the Rambam has a very different way of understanding what happened, which I will explain after the following introduction:

Levels of prophecy

According to the Rambam (Moreh Nevuchim 2:44), there are twelve different levels of prophecy:

Levels 1 and 2 are different levels of ruach hakodesh, which the Rambam considers on a lower level than prophecy, and which I will soon explain in more detail.

Levels 3-11 are various degrees of prophecy. It is unnecessary for us to explore every category in this gamut of qualities of prophecy to explain our topic. We simply need to understand that these are different types of Divine experience that the Rambam includes under the general heading of prophecy.

Level 12 is the highest level of prophecy, which was achieved only by Moshe Rabbeinu, and is based on the Torah’s description (Bamidbar 12:6-8) that Hashem communicates with other prophets in visions and riddles, whereas Hashem speaks to Moshe in regular conversation. As the Rambam explains, Moshe is the father of all prophets, both of those who preceded him and those who succeeded him. Other prophets receive their prophecy when they are asleep or in a trance, when their physical senses are inactive;  Moshe could receive a prophecy while awake. Other prophets see symbolic images or allegories; Moshe needed no metaphors. Moshe was able to receive words of prophecy and remain fully composed. Other prophets can only wait and hope to receive a vision; only Moshe could initiate a dialogue with Hashem (Rambam, Hilchos Yesodei Hatorah 7:6; Commentary to Mishnah, Sanhedrin, Chapter 10).

Ruach hakodesh

(1) Divine assistance

At this point, I am going to explain the first level, as I promised above. According to the Rambam, most of the passages in Tanach in which it says “and the Ruach of Hashem came upon” or enveloped someone mean that the individual received Divine assistance to achieve something that he would, otherwise, probably have been unable to accomplish on his own. The Rambam implies that the individual may not even realize that he has been the beneficiary of special Divine involvement. Among the many personalities in Tanach who achieved ruach hakodesh are Yosef, Shimshon, Shaul and the many shoftim. The Rambam explains that this was the level that Moshe Rabbeinu had achieved before his first prophecy at the Burning Bush.

This level is not true prophecy, which is receiving a communication from Hashem; nor does it necessarily effect a permanent change in the individual receiving this Divine blessing, again unlike true prophecy in which the prophet now feels a qualitative difference in his own spirituality that remains with him for the rest of his life.

Many authorities accept fully this approach of the Rambam, including theRadak (in the introduction to his commentary on Tehillim) and the Abarbanel (in his commentaries to Tanach and Moreh Nevuchim).

(2) Higher Ruach hakodesh

There is a higher level of ruach hakodesh, in which the individual is aware that he has received a Divine gift that allows him to accomplish more than he would otherwise have been able to. This higher level of ruach hakodesh enabled Dovid Hamelech to compose Tehillim, Shelomoh Hamelech to write Mishlei, Koheles and Shir Hashirim, and Daniel, Mordechai, Esther and others to write all the works that we call Kesuvim. This was also the level achieved by Eldad and Meidad, when they foretold the future (Bamidbar 11:26-27), and by the kohanim gedolim, when they requested advice or direction from the Urim Vetumim. It is noteworthy that the Rambam places Eldad and Meidad in this category, notwithstanding that the posuk says that they prophesied (misnabe’im).

While receiving this Divine gift, Dovid, Shelomoh, Daniel and the others retained full possession of their senses, which is why the Rambam explains that this is not true nevuah, in which a prophet reaches a state of trance. With this approach, the Rambam explains the passage of the Gemara wherein it states that Chaggai, Zecharyah and Malachi were prophets, although Daniel, who was not a prophet, perceived more than they did (Megillah 3a; Sanhedrin 94a). Daniel did not achieve the level of true prophecy, but his accomplishments in ruach hakodesh enabled him to foresee more than Chaggai, Zecharyah and Malachi did with their prophecy.

The Rambam does not consider Dovid, Shelomoh and Daniel to be true prophets, but to have received a high level of ruach hakodesh. This does not in any way demean these great Torah leaders of their spiritual genius and accomplishments. It is simply a definition of forms and levels of prophecy that different great Torah leaders achieved.

Other rishonim, such as Rashi (Megillah 14a), disagree with the Rambam and consider Dovid, Shelomoh and Daniel to be true prophets, and, presumably, also place Eldad and Meidad in the same category.

Kesuvim

At this point, we can answer the second of our opening questions: “What is the difference between Nevi’im and Kesuvim?” In other words, why did Chazal divide the non-Torah parts of Tanach into two sections, one called “Nevi’im” and the other called “Kesuvim?” According to the Rambam, the words of Nevi’im were received as prophecy (levels 3-11), whereas the words of the Kesuvim were received in ruach hakodesh. In the instances where the same person wrote seforim both in Nevi’im and Kesuvim, such as Yirmiyohu, who wrote the book of Nevi’im that bears his name, the book of Melachim, which is also in Nevi’im, and also Megillas Eicha, which is part of Kesuvim (Bava Basra 15a; Mo’ed Katan 26a), the book that is in Kesuvim was written with ruach hakodesh, whereas the books in Nevi’im were written with prophecy (Commentary of Abarbanel to Moreh Nevuchim).

Since Rashi understands that Dovid, Shelomoh and Daniel were prophets, and presumably is of the opinion that the books of Kesuvim are also written with prophecy, he cannot accept the Rambam’s approach to explain the difference between Nevi’im and Kesuvim. There are many other answers to explain what is the difference between Nevi’im and Kesuvim. In the work, Ohel Rivkah, by Rabbi Yitzchak Sender, several approaches to this question are quoted (pages 133-139).

(3-11) The words of the prophets

Levels numbered three through eleven of the Rambam are different intensities of prophecy (Moreh Nevuchim 2:44). Prophecy can be received either in a vision or in a dream. The prophet may perceive that Hashem is speaking to him, or that he is receiving communication via an angel, whom he might see and/or hear. He might hear and see a human or an unusual being talking to him, or he may hear only a voice or a series of different voices. It might even be a voice of someone who is familiar to him, such as when Shemuel heard what he thought was the voice of Eili (Shemuel I, Chapter 3). A prophet might receive a message that is meant only for his own erudition and growth, but not to be communicated to others, or he might receive a message that is meant to be told to others, as we see numerous times in Chumash and Navi (Rambam, Hilchos Yesodei Hatorah 7:7). A prophet may receive a vision that is anywhere among these levels. The fact that he once received a more intense level of prophecy does not mean that his future prophecies will be as intense.

In the Rambam’s opinion, when the Torah describes, in parshas Shoftim: “A prophet from among you, from your brothers, like me (Moshe), will Hashem, your G-d, establish for you. You shall listen to him…. Then, Hashem said to me… ‘I will establish for you a prophet from among your brothers, like you, and I will put My words in his mouth – everything that I will command him’” (Devorim 18: 15-18), it is not referring to someone who received ruach hakodesh, but to someone who received true prophecy. Therefore, although the Torah prescribes a stern sentence for someone who pays no attention to the admonition of a prophet, that punishment does not apply to someone who ignored a message received through ruach hakodesh.

Two prophets

The Midrash teaches that ein shenei nevi’im misnabe’im besignon echod, two prophets will never prophesy using the exact same words (Pesikta and Midrash Seichel Tov, parshas Va’eira 9:14). This is because a prophet saw a vision, which he later describes. Each prophet still maintains his own personality and upbringing that is reflected when he describes what he saw. Since no two people have the same personality, no two people — not even prophets who see the same Divine vision — will describe what they saw using the exact same words.

Profitable prophet

The Rambam explains: “Prophecy is bestowed only to a very wise talmid chacham who is in total control of his personality traits. Prophecy can be achieved only by someone whose yetzeir hora never controls him – rather, he is in control of his yetzeir hora always.

Once he is filled with all these qualities, particularly tremendous and correct understanding, and he is physically complete and healthy, he may begin studying the deeper aspects of Torah. When he is drawn by these deep subjects, his great understanding must be channeled to becoming sanctified and to continue to grow spiritually. At this point, he separates himself from the ways of common people who follow the darkness of the time, and, instead, this individual constantly grows and spurs himself onward. He teaches himself to control his thoughts so as not to think of things that have no value. Rather, his thoughts should always be engaged with the Throne of Hashem, in his attempts to understand holy and pure ideas.… When the spirit of Hashem rests upon him, his soul becomes mixed with that of the angels… and he becomes a new person who understands that he is no longer the same as he was before, but that he has become elevated beyond the level of other talmidei chachomim”(Hilchos Yesodei Hatorah 7:1).

In the Rambam’s opinion, while achieving true prophecy, every prophet, with the exception of Moshe Rabbeinu, goes into a trance. The nine different levels of prophecy that the Rambam describes in Moreh Nevuchim represent lesser or greater, clearer or more opaque communication from Hashem, but they are all in visions, allegories or dreams.

The intent of the prophecy is clear

It is clear to the prophet what message is intended, and he will be able afterward to explain, in his own words, what he envisioned and what was the message. Even after the prophetic experience has dissipated, the prophet has become a changed person who will live with this experience the rest of his life. This was the level of prophecy of the avos, Yehoshua, anyone whom the posuk calls a navi, and all authors of the books of Nevi’im.

Parshas Vayeira

Now that we understand a bit about how the Rambam categorizes the various levels of prophecy, we are faced with a conundrum regarding the first two pesukim of parshas Vayeira. In the first posuk, Hashem appears to Avraham, while he is sitting at the opening of his tent. In the second posuk, Avraham sees three travelers outside, in the midday heat of the desert, and he runs to greet them; and then, the posuk describes how Avraham invited them to rest and refresh themselves. The problem facing us is that, if all prophecy, except that granted to Moshe, required that the prophet be in a state of trance, how could Avraham have even noticed the three visitors or been able to run to greet them, invite them into his house and provide them with gracious hospitality?

The Rambam’s approach is that the appearance of three men in the desert near the entrance to Avraham Avinu’s tent was the beginning of the prophecy that Avraham Avinu received. All the chesed that Avraham performed, the ensuing conversation between Avraham and Sarah, the angels visiting Lot, the riot of the men of Sodom concerning Lot’s hachnasas orchim, and Avraham’s prayers and “negotiating” with Hashem to save Sodom were all part of the prophecy. Thus, all the events of the first chapters of the parsha are included in the prophecy received by Avraham, and these are introduced with the first words, “And Hashem appeared to him.”

The Ramban, in his commentary to the beginning of parshas Vayeira, takes great issue with the Rambam’s approach. To quote the Ramban: “How can the Torah say that Hashem appeared to Avraham, when [in the details of the prophecy that follows] all he saw was [not Hashem but] three men eating meat! He has no vision or thought of Hashem! This is unlike any other prophecy. Furthermore, according to the Rambam, Sarah never kneaded dough, Avraham never prepared meat and Sarah never laughed, but it was all a vision… what could possibly be the purpose in all this as a vision? In addition, according to the Rambam, no angels ever arrived at Lot’s house; he never baked matzos for them nor did they eat in his house, for it was all a vision! If Lot had achieved prophecy to see the angels, who told the people of Sodom of the arrival of these men in his house? Did they also achieve the level of prophets? And, if indeed, this was also part of the prophecy, when did the angels urge Lot to take his wife and daughters and escape from Sodom? And how did Lot negotiate with the angels to save one city?”

The Ramban disagrees with the Rambam that seeing an angel is a form of prophecy. After all, notes the Ramban, Hagar was not a prophetess, notwithstanding that she had a conversation with an angel, or perhaps four different angels (according to Rashi). (By the way, the Rambam explains that Hagar’s conversation was with a prophet, and not with an angel [Moreh Nevuchim 2:42]. He explains that in some places in Tanach the word malach should be translated as prophet and not as angel.)

Sefer Hazikaron

We should be aware that the Ritva, known predominantly for his commentaries to Shas, authored a work called Sefer Hazikaron,whose entire purpose was to answer questions raised by the Ramban, in his commentary on Chumash, against positions taught by the Rambam in Moreh Nevuchim. The Ritva was a disciple of Rabbeinu Aharon Halevi (usually abbreviated to “ReAH”), who himself was a disciple  of the Ramban. The Ritva elucidates the Rambam’s opinions and answers the questions of the Ramban, but, invariably, concludes that the Ramban’s approach should be followed. In his understanding of parshas Vayeira, the Ramban’s approach is accepted by the vast majority of rishonim, including Rashi and the Ibn Ezra. I specifically mention the Ibn Ezra because, in many places where the Rambam’s philosophic approach influences how he understands Tanach, statements of Chazal, or halacha, the Ibn Ezra is often one of his major co-travelers. However, in his interpretation of this parsha, Ibn Ezra appears to follow the main highway of exposition – that Avraham interrupted his prophetic experience with Hashem to take care of his guests, and that his conversation with Hashem resumes later in the parsha.

Tehillim

At this point, let us examine the next of our opening questions: “Is Tehillim prophetic?” Assuming that we define prophetic as that which tells about future events, it is, since Dovid sings of events that had not yet occurred in his time, such as the destruction of the Beis Hamikdash, which took place 417 years after his passing, and the tragedies that happened to the Jews in its aftermath (Tehillim 74, 79). Dovid Hamelech describes the emotional reaction to the destruction of the Beis Hamikdash and to finally reaching the rivers in Bavel (Tehillim 137), although these events transpired hundreds of years after his passing.

Conclusion

In Sefer Hachinuch, Mitzvah #424 is entitled, “Not to test a true prophet too much.” The Sefer Hachinuch explains that if a navi is subjected to excessive evaluation to prove his veracity, those jealous or otherwise pained by his success may use inadequate testing as an excuse to disobey his commandments. They might deny the prophet’s authenticity by claiming, unjustifiably, that he did not undergo enough investigation. Thus, we see that even something so obvious as the ability of a great tzadik to foretell the future can be denied by people when they don’t want to accept the truth!

Am I Jewish?

Situation #1: Richard

Richard was born into a non-observant family and married a woman who keeps a kosher home, but she is not interested in becoming more observant. Richard is under the impression that, going back a few generations, his mother’s family was not originally Jewish, and, as far as he is aware, never was observant; yet his mother’s kesubah, which was written up and witnessed by a talmid chacham, identifies her as Jewish from birth. Does this mean that he is halachically Jewish and can wear tefillin and be counted as part of a minyan?

Situation #2: Gail

Gail does not think that her maternal grandmother was born Jewish, but she has little information about that part of her family.

Situation #3: Julia

Julia’s mother always told her that she was Jewish, although she grew up in an area with few Jews and no Jewish community. Recently, she has discovered that her mother is fond of inventing stories about her life, and Julia’s father tells her that he never believed that Mom is Jewish.

Situation #4: Norman

Norman, who was not raised Orthodox, has since become fully frum, is married and has children. Years ago, his bar mitzvah was at a local Orthodox synagogue, but his mother was not Jewish at the time. The rabbi had him undergo a conversion, but he has no recollection whether this was before or after his bar mitzvah, and he was certainly not interested in being observant at the time, so any statement that he was planning to observe mitzvos would not have been serious.

Introduction:

Although I have made some modifications to the above stories, each represents a shaylah that I have been asked. In all four situations, and for literally thousands of similar individuals, their status as Jews is unclear. This article is not intended to provide halachic ruling for any individual, who should address their specific question to a posek.

Korban Pesach

The Gemara in Pesachim (3b) records the following event. A non-Jew came to Rabbi Yehudah ben Beseira, taunting him that, although the Torah states in parshas Bo, kol ben neichar lo yochal bo (Shemos 12:43), kol areil lo yochal bo (ibid. Verse 48)any son of a stranger (i.e., who is not Jewish) may not eat from it (the korban Pesach), no one uncircumcised may eat from it — he had successfully posed as Jewish and eaten the best cuts of the korban Pesach on a number of occasions. Without batting an eyelash, Rabbi Yehudah ben Beseira turned to the gentile and asked him if they ever offered him to eat the alyah, the fatty tail of sheep that was a prized delicacy. Thereby, Rabbi Yehudah ben Beseira implied to the non-Jew that they had given him only the scrawny parts of the korban, not the juicy, tasty parts that they reserved for the gentry (see Rashi).

Upon his return to the Beis Hamikdash the following Erev Pesach, the gentile requested the alyah portion, not realizing that he had thereby fallen into Rabbi Yehudah ben Beseira’s trap: the alyah is offered on the mizbei’ach. When they asked the non-Jew who told him to ask for the alyah, and he told them that it was Rabbi Yehudah ben Beseira, the people in Yerushalayim now realized that something serious was amiss. They researched the matter, discovered that the fellow was a charlatan, and made certain he would never give them trouble again. The Torah leadership then sent a message to Rabbi Yehudah ben Beseira that although he was very distant from the Beis Hamikdash and unable to attend the offering of the korban Pesach (see Tosafos ad loc. s.v. Ve’ana), his trap set from quite a distance had snared its prey.

This story provides opportunity to discuss the following problem, raised by Tosafos and other rishonim: How was this gentile able to attend the Beis Hamikdash on Erev Pesach and pretend that he was Jewish? Did he not have to bring proof that he was Jewish before being allowed to consume korban Pesach? May anyone claiming to be Jewish be believed, without having to produce a driver’s license, passport or other photo identification?

Tosafos notes that our story does not prove that this conclusion is true. Indeed, someone claiming he is Jewish might require proof, but, since most of those who attended the korban Pesach procedures were Jewish, there was no need for someone to bring additional proof. Halachically, we accept the principle of rov, that we follow the majority, which includes that someone in a place where most people are Jewish may not be required to prove that he is, too. This is similar to the halachic rule that, although the milk of an animal containing unknown internal injuries, tereifos, is not kosher, we may drink milk, assuming that the cow is kosher, since most living animals are kosher. This is a very useful ruling, because if we needed to prove that every cow whose milk we drink is kosher, it would increase the price of kosher milk considerably.

Shidduch crisis

Tosafos notes that other passages of Gemara imply that someone is accepted as Jewish on their say so, without any other proof. For example, the Gemara (Yevamos 45a) quotes several amora’im who contend that someone whose mother is Jewish, but not his father, is halachically Jewish, a principle called matrilineal descent. (Compare, however, Shu”t Chemdas Shelomoh, Even Ha’ezer #2, who quotes an extensive responsum from Rav Yaakov Loeberbaum of Lissa, the author of the Nesivos Hamishpat and many other major halachic works, who understands this passage of Gemara differently.) Subsequently, the Gemara quotes several anecdotes in which sons of such relationships wanted to marry, but were having difficulty finding a shidduch; Rava advised one to move to a place where his genealogy was unknown, in order to find a shidduch.

Tosafos questions: If this person whose father is not Jewish has to prove his lineage wherever he goes, how does this self-imposed exile help? Tosafos concludes (in both Pesachim and Yevamos) that someone presenting himself as Jewish does not need to prove it. Therefore, someone whose father is not Jewish will be able to keep his personal family circumstances a secret.

When the Rambam quotes this law, he records the following: “Someone who came and said, I was a non-Jew and now I have properly converted in beis din, he is believed (without any other proof, because without his saying so we would have no basis to assume that he was once non-Jewish). This is true in Eretz Yisroel, in an era when we could assume that everyone is Jewish. However, outside Eretz Yisroel, he needs to bring proof before he may marry a Jewish woman. In my opinion, this requirement is a stringency created by Chazal to protect proper yichus” (Hilchos Issurei Bi’ah 13:10). The Ra’avad disagrees, contending that, whether he is in Eretz Yisroel or in chutz la’aretz, and regardless of what era he is in, he is required to bring proof that he is Jewish before he marries.

Three opinions

Thus, it appears that we have three differing opinions among the rishonim:

1. Tosafos, who rules that he is never required to prove that he is Jewish, even to marry. It should be noted that this is probably true only when the individual is living a frum lifestyle.

2. The Rambam, who rules that, in Eretz Yisroel, at a time that we would assume that everyone is Jewish, he may marry without any evidence proving his Jewish identity, but, in all other times and places, he must prove he is Jewish to marry, but not for any other benefits.

3. The Ra’avad, who rules that, in all times and places, he must prove he is Jewish to marry. (Also see Yam shel Shelomoh, Kesubos 2:40, who cites, without sources or clarification, the opinions of Rashi and the Remah, who dispute some of what we have written above. However, the Maharshal, the author of the Yam shel Shelomoh, does not provide the sources whence he derived these conclusions from the writings of Rashi and the Remah; it appears that their position may have been similar to that of the Ra’avad.)

How do we rule?

As the primary opinion, the Shulchan Aruch (Yoreh Deah 268:10) quotes Tosafos, although he also then mentions the Rambam’s position. However, several major authorities understand that the Rambam agreed with Tosafos that someone arriving in our community, presenting himself as born Jewish, does not need to prove this. They explain that the Rambam contends only that someone who admits to having once been non-Jewish must provide evidence that he had a proper conversion to allow him to marry (Yam shel Shelomoh, Kesubos 2:40; Bach, Yoreh Deah 268; Shach, Yoreh Deah 268:21). This approach to understanding the Rambam explains how the Rambam can easily explain the Gemara (Yevamos 45a), quoted above, that advised someone to hide his family’s past and get married, without any other proof. This individual,  who had a non-Jewish father but a Jewish mother, was Jewish from birth and, therefore, exempt from providing any other proof to verify his being Jewish.

It should be noted that the Migdal Oz (Hilchos Issurei Bi’ah 13:10)and the Gra (Yoreh Deah 268:25) provide a different approach to explain the Rambam, based on a passage in Mesechta Geirim (4:4), which they both accredit to the Talmud Yerushalmi, that seems to conflict with the Gemara in Yevamos. The Gra’s halachic conclusion agrees with that of the Shulchan Aruch.

Halachic conclusion

In summary, the following are the halachic conclusions:

  • Someone that we know was not Jewish and claims to have been properly converted must prove that he underwent a proper conversion (Tosafos, Yevamos 47a s.v. Bemuchzak quoting Rabbeinu Tam; Shulchan Aruch, Yoreh Deah 268:10).
  • Someone claiming to be Jewish from birth is believed, without any proof, even to marry (Shach, Yoreh Deah 268:21).
  • Someone claiming that he was properly converted, about whom we have no previous information whether he is Jewish or not, is a subject of dispute, whether he needs to prove that he was properly converted in order to marry. However, if he is observant, we accept him as fully Jewish for all other halachos (see Shulchan Aruch, Yoreh Deah 268:10; Shach, Yoreh Deah 268:21; Aruch Hashulchan, Yoreh Deah 268:14).

Why is he believed?

At this point, I would like to discuss a question that underlies what the rishonim have concluded. Why is someone believed on his own that he is Jewish? What is the halachic reasoning behind this assumption?

I have found three answers to this question:

1. Tosafos (Yevamos 47a s.v. Bemuchzak) states that there is a concept of rov, majority – meaning that most people who act like frum Jews and claim to be Jewish are indeed Jewish.

2. The Tiferes Yisroel (Kesubos 2, Boaz 1) questions Tosafos’s approach by noting that most people in the world are not Jewish. Therefore, he suggests a different approach: when an individual claims he is Jewish, he requires himself to observe all the laws of Shabbos, kashrus, etc., which he is not required to do if he is not Jewish. It is difficult to imagine that someone would do this, if he were not, indeed, already observing these mitzvos.

3. The Tiferes Yisroel then shares another option, which is very similar, and perhaps logically identical, to that of Tosafos,although he explains it in a slightly different way than Tosafos does. Someone who observes halacha as a frum person has a chazakah that he is Jewish, and there is no further reason to require him to prove that he is Jewish (see Yevamos 47a; Kiddushin 80a).

It would seem that all three approaches we have presented accept that only someone who is clearly religiously observant when he presents himself as Jewish is believed.

Situation #1: Richard

Richard was born into a non-observant family and married a woman who keeps a kosher home, but neither he nor his wife are interested in becoming more observant. He is under the impression that, going back a few generations, his mother’s family was not originally Jewish, and, as far as he is aware, never was observant; yet his mother’s kesubah, which was written up and witnessed by a talmid chacham, identifies her as Jewish from birth. Does this mean that he is halachically Jewish and can wear tefillin and be counted as part of a minyan?

At the time that this shaylah came up, I asked Rav Yisroel Belsky, zt”l , who answered me that once we saw that a talmid chacham wrote a kesubah assuming that Richard’s mother was born Jewish, this becomes the accepted halacha. Therefore, Richard is assumed to be Jewish for any halachos.

Situation #2: Gail

Gail does not think that her maternal grandmother was born Jewish, but she has little information about that part of her family.

Answer:

Gail is now living a fully frum lifestyle. As such, for all halachos, those around her should assume that she is Jewish. The only question is whether she can marry someone Jewish. Since she has no proof of her Jewish identity, according to some authorities she may not marry someone Jewish. As opposed to Richard, Gail has no evidence that her grandmother and mother are Jewish. Therefore, Gail was advised to have a giyur lechumra, meaning to undergo a geirus process, but without reciting any brachos when immersing in the mikveh, because of safek brachos lechumra — when we are uncertain about whether to recite a brocha, we do not do so. She subsequently married a fine, frum-from-birth young man.

Situation #3: Julia

Julia’s mother always told her that she was Jewish, although she grew up in an area with few Jews and no Jewish community. Recently, she has discovered that her mother is fond of inventing stories about her life, and Julia’s father tells her that he never believed that Mom is Jewish.

Since Julia is now living a fully frum lifestyle, other people should assume that she is Jewish. However, there is major uncertainty whether or not to believe her mother, and, therefore, I advised her to undergo a geirus procedure.

Situation #4: Norman

Norman, who was not raised Orthodox, has since become fully frum, is married and has children. Years ago, his bar mitzvah was at a local Orthodox synagogue, but his mother was not Jewish at the time. The rabbi had him undergo a conversion, but he has no recollection whether this was before or after his bar mitzvah, and he was certainly not interested in being observant at the time, so any statement that he was planning to observe mitzvos would not have been serious.

Does Norman need to have another conversion procedure?

The answer to this question takes us a bit afield from our topic at hand, but I will supply some of the information in a cursory way. If the conversion process was performed before Norman was bar mitzvah, there are halachic authorities who would rule that he is certainly Jewish, but there are others who might question this, depending on the circumstances. Therefore, it was advised that he perform geirus leshufra demilsa, which means a geirus that may not be necessary, but resolves all issues. This was expedited very discreetly and very swiftly.

Conclusion – geirim are special

A geir tzedek should be treated with tremendous love and respect. Indeed, the Torah gives us a special mitzvah to “Love the geir,” and we daven for them daily in our Shmoneh Esrei! Throughout the years, I have met many sincere geirim and have been truly impressed by their dedication to Torah and mitzvos. Hearing about the journey to find truth that brought them to Judaism is usually fascinating. What would cause a gentile to join the Jewish people, risk confronting the brunt of anti-Semitism, while at the same time being uncertain that Jews will accept him? Sincere converts are drawn by the truth of Torah and a desire to be part of the Chosen People. They know that they can follow the Will of Hashem by doing seven mitzvos, but they insist on choosing an all-encompassing Torah lifestyle.

One sincere young woman, of Oriental background, stood firmly before the beis din. “Why would you want this?” questioned the rav.

“Because it is truth and gives my life meaning.”

“There are many rules to follow,” he cautioned.

“I know. I have been following them meticulously for two years,” was the immediate reply. “I identify with the Jews.”

After further questioning, the beis din authorized her geirus, offering her two dates convenient for them. She chose the earlier one, so that she would be able to keep an extra Shabbos.

We should learn from the geir to observe our mitzvos every day with tremendous excitement – just as if we had received them for the first time!

The Numbers Game

Question #1: Pie r Squared

Yanki is supposed to be watching his weight and therefore needs to figure out how many calories are in the pie he beholds. To figure out how big the pie is, he measures the diameter of the pie, and divides in it half to get the length of its radius. He then multiplies the length of the radius by itself to get “r squared,” and multiplies the result by three so that he knows the area of the pie’s surface. Is there anything wrong with his calculation?

Question #2: Puzzled by the Pasuk

“How can the pesukim tell us that the relationship between the circumference of a circle and its diameter is three to one, when simply taking a string and measuring around a circle demonstrates that the circumference is noticeably longer than three times the diameter?”

Question #3: Performing Mitzvos Accurately

“How accurate a calculation must I make when determining the size of an item to be used for a mitzvah?”

Introduction

In numerous places, both Tanach and Chazal approximate certain mathematical values, such as evaluating the ratio of the circumference of a circle to its diameter as three to one. The problem is that we can demonstrate mathematically that the ratio is greater than three and is almost 3 1/7. This leads to the following questions:

(1) Why would Chazal calculate using inaccurate approximations?

(2) When making halachic calculations, may we rely on these estimates, or do we need to be mathematically more accurate?

(3) A corollary question is: When providing an estimate, one must allow for a margin of error. Does halachah require a margin of error, and, if so, how much?

The Slide Rule versus the Calculator

Let me begin our discussion with a modern analogy, if something I remember can still be considered “modern.” When I first studied sophisticated mathematical estimates, I learned to use a slide rule, which today is as valuable to an engineer as his abacus. Relative to the calculator, a slide rule does not provide accurate measurements, and someone using a slide rule must allow for a fairly significant margin of error.

Today, complex computations are made with calculators, which provide far more accurate results that can be rounded off, as necessary, to the nearest tenth, millionth, quadrillionth or smaller. Of course, using a calculator still requires one to round upward or downward, but because it is much more precise, the margin of error is greatly reduced.

How Irrational Are You?

Numerous halachic questions require mathematical calculations that involve what we call “irrational numbers.” An irrational number means one that cannot be expressed in fractional notation. Another way of explaining an irrational number is that its value can never be calculated totally accurately, but can only be estimated. The two most common examples of irrational numbers that show up in Chazal are:

Pi

(1) The ratio of the circumference of a circle to its diameter, which we are used to calling by the Greek letter ∏ (pronounced like the word “pie,” and spelled in English “pi”). Since the 19th century, the letter pi has been used to represent this number, because the Greek word for periphery is peripherion, which begins with the letter ∏. Hundreds of years earlier, the Rambam (Commentary to the Mishnah, Eruvin 1:5) noted that the ratio of the circumference of a circle to its diameter is an irrational number that can only be approximated, and that the scientists of his era used an estimate of 3 and 1/7, which is actually slightly greater than the value of ∏. The Rambam explains that since there is no accurate ratio, Chazal used a round number, three, for this calculation.

The Diagonal of a Square

(2) The length of a diagonal of a square, which is equal to the side of the square multiplied by the square root of two (√2). Chazal calculated the length of a diagonal of a square to be 1 and 2/5 times its side, which is slightly smaller than the value of the √2. (Another way of expressing this idea is that the ratio between the diagonal and the side is 7:5.) The fact that Chazal’s figuring is somewhat smaller than the mathematical reality is already proved by Tosafos (to Sukkah 8a s.v. kol).

Since both pi and the square root of two are irrational numbers, they can only be estimated but can never be calculated with absolute accuracy.

Based on the above-quoted statement of the Rambam, we can already address one of our earlier questions: “Why would Chazal have used inaccurate evaluations for calculation?” The answer is that any computation of the correlation of the circumference of a circle to its diameter will be an estimate. The only question is how accurate must this estimate be for the purpose at hand.

Chazal or Tanach?

Although the Rambam attributes the rounding of pi to Chazal, in actuality, there are sources in Tanach that calculate the ratio of the circumference of a circle to its diameter as three-to-one. Both in Melachim (I 7:23) and again in Divrei Hayamim (II 4:2), Tanach teaches that the Yam shel Shelomoh, the large, round pool or mikveh that was built in the first Beis Hamikdash, was thirty amos in circumference and ten amos in diameter, which provides a ratio of circumference to diameter of three-to-one. Thus, we can ask a question of the Rambam: Why does he attribute this ratio to Chazal, rather than the source for Chazal’s calculation, the pesukim?

The commentaries there, however, already ask how the verse can make a calculation that we know is not accurate. The Ralbag suggests two options: either that the numbers used are intended to be a very broad estimate, or, alternatively, that the diameter is measured from the external dimensions of the mikveh, whereas the circumference is measured from its inside, which makes the estimate closer to mathematical reality. According to the second approach, we have no Biblical source that uses an estimate of three-to-one as a substitute for pi.

This will explain why the Rambam attributed the estimation of pi as three to Chazal, rather than to the Tanach. The Rambam was fully aware that one could interpret the verses according to the second approach of the Ralbag, in which case, there is no proof from the verse. He, therefore, attributed this estimate to Chazal.

Gemara Eruvin

However, the Ralbag’s approach seems to conflict with a passage of Gemara. The Mishnah in Eruvin states that if the circumference of a pole is three tefachim, its diameter is one tefach, which means that the Mishnah assumes a ratio of three-to-one.

The Gemara questions how the Mishnah knows that the ratio is three-to-one, and then draws proof from the above-quoted verse that the Yam shel Shelomoh was thirty amos around and ten amos across. The Gemara then debates whether the calculations of the Yam shel Shelomoh indeed result in a ratio of three-to-one, because one must also include the thickness of the poolitself, which offsets the computation. The Gemara eventually concludes that the verse was calculating from the inside of the pool, not its outside, and therefore the thickness of the pool’s containing wall is not included in the calculation (Eruvin 14a).

However, this Gemara’s discussion leaves the mathematician dissatisfied, a question already noted by Tosafos. If the internal diameter of the Yam shel Shelomoh was ten amos, its circumference must have been greater than thirty amos, and if its circumference was thirty amos, then its internal diameter must have been less than ten amos.

A Different Question

The Rosh, in his responsa, is bothered by a different question, based on Talmudic logic rather than on mathematical calculation. He finds the Gemara’s question — requesting proof for the ratio between a circle’s circumference and its diameter — to be odd. The ratio between a circle’s circumference and its diameter is a value that one should calculate. By its nature, this is not a question that requires a Biblical proof or source.

In the literature that we have received from the Rosh, he asks this question in two different places. In his responsa (Shu”t Harosh 2:19), we find a letter that he wrote to the Rashba, in which he asked a series of questions that the Rosh notes bother him tremendously and to whom he has no one else to turn for an answer. One of the questions the Rosh asks is: “Why does the Gemara ask for a Biblical source for a mathematical calculation?”

It is curious to note that a later commentary mentions that, in all the considerable literature that we have received from the Rashba, we have no recorded answer of the Rashba to this question of the Rosh (Cheishek Shelomoh to Eruvin 14a).

Another Rosh

As I mentioned above, there is another place where the Rosh asks why the Gemara wanted a Biblical source for a mathematical calculation, but in this second place the Rosh provides an answer to the question. In his Tosafos Harosh commentary on Eruvin, which was published for the first time fairly recently, the Rosh provides the following answer: Since the calculation of three-to-one is not accurate, the Gemara wanted a biblical source as proof that we are permitted to rely on this estimate.

(It is curious to note that the Cheishek Shelomoh whom I quoted above provided the same answer to this question as did the Rosh in his Tosafos. The Cheishek Shelomoh never saw the Tosafos Harosh, which had not yet been printed in his day.)

Curiousity about the Tosafos Harosh

There is an interesting historical point that can presumably be derived from this statement of the Rosh. As I mentioned, in the Tosafos Harosh, the Rosh does answer the question that he raised, and accredits this answer to himself. This should be able to prove which work the Rosh had written earlier, and also whether he ever received an answer to his question from the Rashba. This analysis is based on the following question: Why did the Rosh cite an answer in his Tosafos¸but not in his responsum, which was addressed as a question to the Rashba. There are three obvious possibilities:

(1) Although the Rosh wrote this answer in his Tosafos, he was dissatisfied with it, and therefore wrote a question to the Rashba. I would reject this possibility because, if it is true, then, in his correspondence to the Rashba, the Rosh would have mentioned this answer and his reason for rejecting it.

(2) The Rosh indeed received an answer, either this one or a different answer, from the Rashba. I reject this approach also, because, were it true, the Rosh would have quoted the Rashba’s answer in his Tosafos and, if need be, discussed it.

(3) Therefore, I conclude that the Rosh, indeed, never received an answer to the question he asked of the Rashba and subsequently reached his own conclusion as to how to answer the question, which he then recorded in the Tosafos Harosh. This would lead us to conclude that the Tosafos Harosh were written later in his life than his responsa, or, at least, than this responsum.

Mathematical Accuracy

At this point, we can address one of earlier questions.When making halachic calculations, may we rely on these estimates, or do we need to be mathematically more accurate?” We might be able to prove this point by noting something in the Mishnah in Eruvin. The Mishnah there ruled that, under certain circumstances, an area that is fully enclosed on three of its sides and has a beam, a tefach wide, above the fourth side, is considered halachically fully enclosed, and one may carry inside it. The Mishnah then proceeds to explain that if the beam is round and has a circumference of three tefachim, one may carry inside the area because, based on the calculation that the relationship of its circumference to its diameter is three-to-one, the beam is considered to be a tefach wide. However, as the Rambam notes, the beam is actually less than a tefach in diameter, and therefore, one should not be permitted to carry in this area!

The Aruch Hashulchan (Orach Chayim 363:22; Yoreh Deah 30:13) notes this problem and concludes that one may carry in this area. He contends that this is exactly what the Gemara was asking when it requested Scriptural proof for a mathematical calculation. “Upon what halachic basis may we be lenient in using this estimate of three-to-one, when this will permit carrying in an area in which the beam is less than a tefach wide? The answer is that this is a halachah that we derive from the verse.”

To clarify this concept, the Chazon Ish notes that the purpose of mitzvos is to draw us nearer to Hashem, to accept His reign, and to be meticulously careful in observing His laws. However, none of this is conflicted when the Torah teaches that we may use certain calculations, even if they are not completely mathematically accurate. In this instance, relying on these estimates is exactly what the Torah requires (Chazon Ish, Orach Chayim 138:4). As expressed by a different author, the Gemara (Eruvin 4a; Sukkah 5b) teaches that the measurements, the shiurim, required to fulfill mitzvos are all halachah leMoshe miSinai, laws that Moshe Rabbeinu received as a mesorah in Har Sinai. Similarly, these estimates of irrational numbers mentioned above are all halachah leMoshe miSinai that one may rely upon to fulfill mitzvos, whether or not they are mathematically accurate. The same Torah takes these calculations into consideration when instructing us which dimensions are required in order to fulfill these specific mitzvos (Shu”t Tashbeitz 1:165).

In the context of a different halachah in the laws of Eruvin, the Mishnah Berurah makes a similar statement, contending that we can rely on Chazal’s estimates, even when the result is lenient. However, the Mishnah Berurah there vacillates a bit in his conclusion, ruling that one can certainly rely on this when the issue is a rabbinic concern (Shaar Hatziyun 372:18). In a responsum, Rav Moshe Feinstein questions why the Mishnah Berurah limits relying on this approach, and Rav Moshe rules unequivocally that the rule permitting one to rely on these estimates holds true even germane to de’oraysa laws and even leniently (Shu”t Igros Moshe, Yoreh Deah Volume3 #120:5).

How Straight Are My Tefillin?

Personally, I find the context of Rav Moshe’s teshuvah very interesting. There is a halachah leMoshe miSinai that requires that the boxes of the tefillin, the batim, must be perfectly square. In a responsum dated 21 Adar II, 5736, Rav Moshe was asked whether there is a halachic preference to use scientific measuring equipment to determine that one’s tefillin are perfectly square. Rav Moshe rules that there is neither a reason nor a hiddur to measure the tefillin squareness this accurately. Since Chazal have used the calculation of 1.4 or a ratio of 7:5, which we know is an estimate, to determine the correct diagonal of a square, there is no requirement to make one’s tefillin squarer than this, and it is perfectly fine simply to measure the length of each of the sides of one’s tefillin and its two diagonals to ascertain that the ratio between the diagonal and the side is 7:5.

In the above-cited responsum, Rav Moshe notes that he had heard that the Brisker Rav, Rav Yitzchak Ze’ev Soloveitchik, had ruled that it was preferable to check one’s tefillin in the most scientific method available. Rav Moshe writes that he finds this suggestion very strange and disputes its being halachically correct (Shu”t Igros Moshe, Yoreh Deah Volume3 #120:5).

Thus, according to these authorities, we have answered our previous question regarding the halachic significance of estimated values: Indeed, the purpose of Chazal‘s making these estimates was that observing halachah does not require that these calculations be mathematically precise, provided they meet the criteria that the halachah established.

An Alternate Approach

Although the majority of late authorities conclude that the calculations of Chazal are indeed part of the halachos of shiurim, this is not a universally held position. The Tashbeitz, a rishon, wrote a lengthy responsum on the topic, in which he presents two ways to explain why Chazal used estimates that are not precisely accurate. His first approach reaches the same conclusion as we have already found in the later poskim, that these measurements are included within the halachos of shiurim that are part of the halachah leMoshe miSinai.

The second approach of the Tashbeitz, however, differs with the above-mentioned halachic conclusion. In his second approach, he contends that all the above estimates were meant for pedagogic, but not halachic reasons. The rounding of pi to three and the diagonal of a square to 1.4 were provided to make the material easily comprehensible to all students, since every individual is required to know the entire Torah. Thus, when Chazal used these estimates in calculating the laws, their intent was to enable the average student to comprehend the halachic material, not to provide the most accurate interpretation. When an actual halachic calculation is made, it must be totally accurate, and any halachic authority involved would realize that he must use a highly accurate mathematical computation and then round either upward or downward as necessary for the specific application. (A similar position is held by Chiddushim Uviurim, Ohalos 5:6.)

Conclusion

Certainly, the majority of late halachic opinions conclude that the estimates of Chazal are meant to be halachically definitive, and not simply pedagogic in nature. However, I leave it to the individual reader to ask his or her posek what to do when a practical question presents itself.

May a Kohen Go to the Dentist?

Yaakov Avinu blessed his sons with brachos appropriate to their future callings in life. They and their children after them for generations engaged in many different professions, some of them even becoming dentists…

Yankel Katz (*Names are fictitious) called me recently with a very surprising shaylah:

“I am scheduled to have a dental implant placed in my mouth. My dentist told me that the procedure may require the insertion of cadaver bone around the implant. Since I am a kohen, I immediately realized that I may have a serious halacha problem on my hands, or more accurately, in his hands and my mouth. May I have these products inserted? May I even go into the dentist’s office knowing he has these remains (parts of a corpse) on hand? Maybe I cannot even enter the building?”

I admit that I was more than a bit incredulous that human remains are commonly used today in basic dentistry and medicine. I did some research and discovered that indeed, Yankel’s information is accurate. Many forms of dental, oral, podiatric and other kinds of surgery utilize cadaver-derived products. Surgeons and dentists use these human products (typically bone, skin, and heart muscle) in various grafting procedures. Similarly, many podiatrists use human remains in the construction of foot implants. Because of this, most periodontists (gum specialists) and dentists specializing in implants store human muscle and bone in their offices. Thus, Yankel’s shaylah is realistic: May a kohen enter an office building knowing that there is probably a dental or foot clinic somewhere in the building that contains human remains? Does this prohibit a kohen from freely entering large office buildings?

Furthermore, a non-kohen who causes a kohen to become tamei will also be violating the Torah. Obviously, the ramifications of these shaylos are ominous, and the potential repercussions could be catastrophic for people employed in most cities. Because of these considerations, I researched this shaylah with utmost seriousness.

There are three potential halachic issues involved in this shaylah:

I. Benefiting From Human Remains (Issur Hana’ah)

II. The Mitzvah of Burial

III. Tumah.

To address these questions, we first need to gather some factual information. I began by asking Yankel’s dentist the following questions:

1) How extensively are cadaver bones and muscle used?

2) How much material does a dentist keep in his office?

I received the following answers:

1) Every periodontist and oral surgeon has this material in his office. In addition, many general dentists have it too if they perform gum surgery or implant surgery.

2) There is no practical way to answer this question accurately. Specialists such as oral surgeons probably have a lot. I keep between 2-10cc. They are usually stored in 0.5, 1, and 2cc bottles.

And now some background to the halachic shaylos involved:

I. BENEFITING FROM A CORPSE

May one benefit from a corpse or from human remains?

The Gemara rules that one may not benefit from a corpse (Avodah Zarah 29b). However, the Gemara does not discuss whether this prohibition applies only to the remains of a Jew or also to those of a non-Jew.

Why should it make a difference?

The Torah pasuk teaching that one may not benefit from a corpse refers to a Jew. Thus, many poskim conclude that the prohibition is restricted to the remains of a Jew (Tosafos and Rashba, Bava Kamma 10a; Nekudos HaKesef and Gra, Yoreh Deah 349; Shu’t Radbaz #741; Mishneh LaMelech, Hilchos Aveil 14:21). Others rule that remains of either Jews or non-Jews are equally forbidden (Shu’t Rashba 365; Shulchan Aruch, Yoreh Deah 349:1). Still others compromise between these two positions, contending that the prohibition to use a gentile cadaver is Rabbinic, whereas not using a Jewish corpse is prohibited min haTorah (Pischei Teshuvah ad loc.).

In a circumstance of pikuach nefesh one may of course benefit, as is true with virtually all mitzvos of the Torah. Although tooth replacement is not a life threatening urgency, it is important to use the best quality dental implant.

To quote Yankel’s dentist, himself an observant Jew:

“In my opinion, the severity of this halachic issue should hinge on the detriment caused by tooth loss. Clearly losing one tooth or even all the teeth will not result in death. However, tooth loss often results in dietary/nutritional issues. People who have a difficult time chewing will not have a proper diet. Although people who lose their teeth can still eat, they tend to eat soft foods, which are usually high in carbohydrates and low in protein, vitamins, and minerals. Foods that are high in protein, vitamins, and minerals, such as meat, poultry, grains, and fresh fruits and vegetables, tend to be harder to chew. Consequently, people who eat mainly soft foods may become undernourished. I have seen many cases where people receiving their first set of dentures lose a lot of weight due to the difficulty involved in learning how to use them. Some people adapt and those who do not often seek implants if they can afford it. The only thing preventing most people from having implants is the exorbitant cost, since insurance does not usually pay for them at this time.”

At this point, I think it is important to explain the difference between dentures and implants.

DENTURES VERSUS IMPLANTS

Dentures are removable appliances that replace some or all of the teeth. They are usually not firm enough to allow a proper bite and chew, and thus a patient using dentures usually regains only a very partial ability to chew. In addition, they are often uncomfortable.

To install dental implants, the dentist utilizes a surgical screw to which he cements crowns or bridges. Alternatively, he uses the implants as anchors to hold complete dentures in place. In either instance, the resultant bite is much stronger than dentures and allows the patient an almost total ability to chew a regular diet.

Dental researchers introduced implants in the ‘60’s, and they became mainstream practice in the ‘90’s. They are now usually considered the “standard of care” for tooth replacement.

Therefore, one can understand the practical importance of using high-quality implants, assuming, of course, that no compromise of halacha results for either the patient, the dentist, or kohanim in the vicinity.

USE OF HUMAN TISSUE

Rav Moshe Feinstein wrote a teshuvah concerning transplanting human remains in non-life-threatening situations (Shu’t Igros Moshe, Yoreh Deah 1:229, 230). Clearly, one may transplant such organs as kidneys, livers, and heart because of pikuach nefashos (life-threatening emergency). However, transplanting items such as bone, cornea, muscle, and ligament are not usually for life-threatening situations. As explained above, dental implants relieve a non-life-threatening emergency, although one could argue that these situations are considered choleh kol gufo, where halachic rules are somewhat relaxed. Nevertheless, treating a choleh kol gufo does not permit violating a Torah prohibition.

We noted above that there is a dispute whether one may use remains of a non-Jew; Rav Moshe concludes that, under extenuating circumstances, one may rely on the lenient opinions. A second question now presents itself, which is whether one may assume that the remains used are those of a non-Jew, since using remains of a Jew is certainly prohibited min haTorah. Again, here also Rav Moshe ruled leniently that one may assume that the remains are of non-Jewish source, since most people are not Jewish (Mishneh LaMelech, Hil. Aveil 3:1).

NOT THE NORMAL USE

Some poskim permit the use of human remains for non-life-threatening emergencies because of a different line of reasoning. The Gemara (Pesachim 25b) rules that someone who is ill, but does not have a life threatening condition, may apply a balm made from orlah fruit (that grew in the first three years of a tree’s growth), notwithstanding that the Torah prohibits benefiting from such fruit.

Why is this permitted where the situation is not life threatening?

This is because many prohibitions that are asur b’hana’ah (forbidden to benefit from), are prohibited min haTorah only when the prohibited item is used in its normal way. Smearing fruit on one’s skin is not a typical, normal use. Since orlah is prohibited min haTorah b’hana’ah only when used in its normal way, smearing orlah fruit as a balm involves only a rabbinic prohibition, which is relaxed for an ill person.

However, this leniency does not apply to all prohibitions. For example, the Torah prohibits using kilayim (forbidden fruit of a grapevine) even in an atypical way. For this reason, an ill person may not smear kilayim as a balm, even though he may smear orlah balm.

Where does the prohibition to use human remains fall? Is it like orlah, and is permitted for an ill person to use in an atypical manner, or like kilayim and prohibited.

The poskim dispute whether the prohibition not to use human remains applies to using them in an atypical way, Shu’t Radbaz #979 and Mishneh L’Melech, Hilchos Aveil 14:21 are lenient, whereas Rabbi Akiva Eiger (notes to Yoreh Deah 349) prohibits. If it is permitted, there is a basis to permit the use of human remains from a Jew for someone who is ill when the situation is not life-threatening.

Rav Moshe rules that min hatorah one may not use human remains in an atypical way, although other poskim are lenient (Shu’t Har Tzvi, Yoreh Deah #277). The latter approach might allow using muscle and bone for implants even from a Jewish cadaver.

However, since there are alternative sources for implants, such as bovine tissue, it is halachically unclear whether this justifies use of human implants. Although some dentists feel that the cadaver-based material is superior, others do not agree. Therefore, someone who is considering cadaver implants should ask a shaylah from his or her Rav, whether or not one is a kohen. In addition, although the dentist may have asked a shaylah and been told that he or she may use human implants, the patient’s Rav may feel otherwise. Thus I believe that a frum dentist who received a psak that he may use human tissue should advise his frum patients to ask their own shaylah.

II. THE REQUIREMENT TO BURY THE DEAD

Is one required to bury a small amount of human remains?

The poskim dispute how small an amount of Jewish remains requires the mitzvah of burying. Some contend that one must bury even an amount as small as a k’zayis (Tosafos Yom Tov to Shabbos 10:5). Others contend that one is required to bury only that which could represent an entire body (Mishneh LaMelech, Hilchos Aveil 14:21). However, it seems that all agree that there is no Torah mitzvah to bury the remains of a gentile, except due to tumah concerns. Thus, this question would not affect our shaylah once we assume that the remains involved are of a non-Jew.

III. TUMAH AND A KOHEN

A human cadaver (meis) of either Jew or gentile conveys tumah when a person touches remains or carries them. Although these halachos do not affect most Jews nowadays, a kohen is still forbidden to come in contact with human remains in a way that he will become tamei.

Jewish remains convey tumah through ohel, which means that a kohen may not be under the same roof or in the same room as the remains. However, if all the doors and windows in the room holding the remains are closed, the tumas ohel is probably contained within that room (see Nekudos HaKesef on Taz, Yoreh Deah 371:3; see also Shu’t Noda BiYehudah, Yoreh Deah #94). However, there is a lesser form of tumah, called sof tumah latzeis (lit., the tumah will eventually leave), that extends beyond the closed doors or windows, though only in the direction that one will eventually remove the tumah.

OHEL AND A NON-JEW

The poskim dispute whether non-Jewish remains convey tumah through ohel; i.e., does someone in the same room as non-Jewish remains become tamei? According to those who contend that non-Jewish remains convey tumas ohel, a kohen may not enter a room containing a gentile corpse or part of a corpse. Thus, a kohen should be careful not to enter any hospital except for a life-threatening emergency, since there is likely to be human remains somewhere in the hospital. Similarly, a kohen may not enter a museum without carefully verifying that it does not contain any human remains — an unusual circumstance. According to those who contend that non-Jewish remains do not convey tumas ohel, a kohen may enter a hospital when one may assume that it contains no Jewish remains.

The Shulchan Aruch rules that non-Jewish remains do not convey tumas ohel, yet a kohen should still be machmir not to be in the same ohel as gentile remains. Thus, a kohen should not visit someone in the hospital unless there is an extenuating reason, i.e., there is something important that only he may accomplish. Similarly, a kohen should not enter a museum without verifying that it does not contain human remains. [This discussion is limited to a case where the remains in the hospital are of a non-Jew. In a situation where there are likely to be Jewish remains in the hospital, a kohen would be allowed to enter the hospital only for a life-threatening emergency (pikuach nefashos).]

Thus, if we assume that the remains contained in the dental office are a non-Jew’s, then a kohen entering the office would not entail a halachic violation, but would be something that should be avoided (according to the above ruling of the Shulchan Aruch). However because of other halachic factors (too complicated to explain in this article), there is a basis to be lenient and allow a kohen to enter the dentist’s office and certainly the building. Personally, I would encourage the dentist to store the remains in a way that guarantees that there is no tumas ohel, a procedure that I will gladly explain to any dentist on an individual basis, but that is too complicated to elucidate in this article.

WHAT ABOUT YANKEL KATZ’S IMPLANT?

So far we have discussed whether one may use human remains as an implant and whether a kohen may enter the office. Assuming that Yankel’s Rav rules that he may rely on the remains being of a non-Jew and that one may use gentile remains, the shaylah is still not completely resolved. Because Yankel has the bone graft installed in his mouth, he will now be touching and carrying the remains, and a kohen may not touch or carry non-Jewish remains. Is there any possible solution to this issue, or must Yankel opt for a non-human product? The answer to this question lies in a different direction.

IS THERE A MINIMUM AMOUNT OF REMAINS THAT CONVEYS TUMAH?

Here the issue is, how small an amount still conveys tumah? Although the amount of flesh that conveys tumah is one k’zayis, the amount of human bone that conveys tumah in this situation may be as small as a k’se’orah, the size of a barleycorn, which is tiny (Ohalos 2:7; Rambam, Tumas Meis 4:4).

How big is a k’zayis? The estimates of the poskim range from as little as 3 cc. to as much as 25 cc. A dentist typically uses less than this amount in a patient, although sometimes he might use a larger amount. Thus, one should verify this information in order to ask a shaylah. However the amount of bone used is certainly greater than the size of a barleycorn, thus precluding a kohen from receiving a dental implant of human origin.

There is one other aspect about dental offices that one should know: Some dentists keep a human skull on hand for explanation and education. A kohen should clarify in advance before visiting a dentist whether he is a skull-bearer, and should make similar research before scheduling an appointment at the podiatrist and other physicians, who often also use human remains in their surgeries or have cadaver models on hand for visual explanations. A concerned practitioner will procure plastic replicas rather than genuine human parts to minimize difficult situations for a kohen.

A kohen has the privilege of blessing the people, in addition to serving in the Beis HaMikdash, may it be built speedily in our day. Concurrent with these privileges come many responsibilities, including the requirement of avoiding tumah. This necessitates an awareness of possible tumah situations and being aware of new developments in our constantly changing society.

Cutting Corners

Question #1: Idolatrous shavers

What does my style of haircut have to do with idolatry?

Question #2: Women shaving

Are women included in the prohibition of shaving?

Question #3: Tweezing my beard

May I tweeze out my facial hairs?

Question #4: Am I square-headed?

Where are my head’s corners? My head is round!

Introduction

In two places in the Torah, the mitzvos not to shave the “corners” or “edges” of one’s head and beard are discussed. In parshas Kedoshim, the Torah states, “Lo sakifu pe’as roshechem velo sashchis eis pe’as zekanecha, “Do not round the corners of your head, and do not destroy the corners of your beard” (Vayikra 19:27). We should note that the first part of the posuk states sakifu and roshechem, both plural, whereas the latter part of the posuk states tashchis and zekanecha, which are both singular and masculine. This observation will be significant in our forthcoming discussion.

The other place where the Torah discusses the prohibition not to shave is in parshas Emor,where the Torah states, “They should not shave the corners of their beard” (Vayikra 21:5). Just reading these two pesukim already raises questions: What does the Torah mean in referring to the “corners” of your head and beard. I, like most people, have an oval-shaped head that has no straight lines or corners! My barber tells me that my beard is roundish also, so, pray tell, where are the corners of my beard?

Even should we explain the posuk to mean “edges” rather than “corners,” it is still unclear. Where are the “edges” of my head, or those of my beard? We will return to these questions shortly.

Shaving and avodah zarah

The Rambam discusses these laws in a place that we might find somewhat unusual — at the end of Hilchos Avodah Zarah, the laws of idol worship. As he explains himself: “It is prohibited to shave the edges of the head, as the idol worshippers and their priests used to do.” Clearly, he understands that this prohibition is linked to the general laws prohibiting idol worship, notwithstanding that these laws apply only to Jews and not to non-Jews, whose responsibility not to worship idols is the same as that of a Jew.

Similarly, when the Rambam introduces the lo saaseh not to shave, he states as follows: “The approach of the priests of idolatry was to shave their beards. Therefore, the Torah forbade shaving the beard.” It is also interesting to note that, although I translated the Rambam as “shaving,” he actually here uses the word hashchasah, which, as in the translation of the posuk in parshas Kedoshim above, means “destroying” the beard.

Both of these statements of the Rambam are unusual. Although he often quotes reasons for mitzvos before concluding the laws of that mitzvah, he rarely introduces a mitzvah with an explanation of the reason for the mitzvah. Here, he obviously felt that there was a reason to do so, which provoked other rishonim to take issue with him, as we will soon see. It is fascinating to note that today there are idolatrous practices that involve shaving the sides of the head in a way somewhat reminiscent of the Rambam’s description. It is also interesting to note that the Yiddish word for a priest, “galach,” is derived from the word giluach, shaving.

Women and hair corners

The two mitzvos, “rounding” the head and “destroying” the edges of the beard, apply only to men and not to women, but where does the Torah teach this? The question is even stronger, since neither of these mitzvos is timebound, and they are both mitzvos lo saaseh, prohibitions of the Torah. The general rule is that women are exempt only from time-bound positive mitzvos (mitzvos aseih) and not from mitzvos lo saaseh, nor from mitzvos that are not time-bound!

To answer this last question, let us quote the Mishnah, which states, “Men are obligated and women are exempt from positive time-bound mitzvos (mitzvas aseih shehazeman grama). Men and women are equally obligated to observe positive mitzvos that are not timebound (mitzvas aseih shelo hazeman grama). Men and women are equally obligated to observe all prohibitions (lo saaseh), except for “Don’t round (bal takif),” “Don’t destroy (bal tashchis),” and “Don’t become tamei to the dead (bal tetamei lameisim)” (Kiddushin 29a).

Thus, we are taught that there are three mitzvos lo saaseh that are discriminatory – they apply only to men, but not to women. In other words, male kohanim may not become tamei to a human corpse, but women who are wives or daughters of a kohein (called kohanos in numerous places) may become tamei. Male Jews are prohibited from “rounding out” the “edges” of their heads, but women are exempt from any prohibition of “rounding out” the “edges” of their heads. And male Jews are prohibited from “destroying” the “edges” of their beards, whereas women are exempt from any prohibition of “destroying” the “edges” of their unwanted facial hairs.

We do not yet know why these mitzvos should be exceptions and not apply to women. The Gemara asks (Kiddushin 35b), “What is the hermeneutic basis for these rulings?” In other words, how do we see in the Written Torah that this is true, based on the thirteen midos of Rabbi Yishmael.

I will note that the Gemara is not questioning why these three mitzvos are exceptions. This we know via our mesorah, the Torah she’be’al peh. The Gemara’s question is how are these laws derived from the Torah shebiksav (see Rambam, Introduction to Commentary on the Mishnah).

The relevant passage of Gemara explains that the law that a kohein may not become tamei through contact with the dead applies only to men and not to women is clearly implied in the posuk (in parshas Emor), where it states: “Speak to the kohanim who are the sons of Aharon,” implying that the prohibition applies only to the male descendants of Aharon, but not to his female progeny. However, from where in the verse would we know that the two prohibitions of rounding the head and destroying the beard apply only to men? The Gemara first explains how we know that the prohibition against destroying the beard applies only to men. The proof for this returns us to the observation we made above: When the Torah states, Lo sakifu pe’as roshechem velo tashchis eis pe’as zekanecha, “Do not round the corners of your head, and do not destroy the corners of your beard,” the beginning of the posuk is plural, whereas the latter part is masculine singular. This change and emphasis implies that lo tashchis eis pe’as zekanecha, which translates, “You (male, singular) are not to destroy the corners of your beard” applies only to men. (This is not the only approach mentioned in the Gemara, but it is the clearest.) The Gemara also demonstrates the hermeneutic source why the lo saaseh of Lo sakifu pe’as roshechem,“Do not round the corners of your head,” also applies only to men, but not to women.

Tweezing my beard

At this point, let us examine one of our opening questions: “May I tweeze out my facial hairs?” We have already learned that a woman is permitted to do this, but we do not know what the halacha is regarding a man. In this context, we should study the Mishnah in Makkos (20a), in which the tanna kamma rules that the prohibition is violated min haTorah only by shaving with a razor, whereas Rabbi Eliezer prohibits min haTorah using either a malkeit or a rehitni. What are these two instruments? According to many rishonim, a malkeit is a pair of tweezers, and the word’s root lelakeit indeed can be translated as “to tweeze” (Bartenura, Makkos 3:5; however, cf. Rashi, Shabbos 97a). Rehitni is understood by most rishonim to mean a plane or similar implement, which has a single blade as sharp as a razor, but is meant for purposes other than shaving (Rashi, Shabbos 48b, 58b, 97a; Rambam Commentary and Bartenura, Makkos 3:5). Notwithstanding that the rishonim differ regarding the correct identification of malkeit and rehitni, they appear to agree regarding the halachic issues that result.

At the beginning of this article, we noted that there are two pesukim banning shaving, one in parshas Kedoshim, which prohibits “destroying” your beard, and the other in parshas Emor, which prohibits shaving. The Gemara (Makkos 21a) explains the tanna kamma to mean that the two pesukim, together, mean that the lo saaseh applies only when someone uses an implement that is both a normal way of shaving and destroys. Although both tweezers and planes will “destroy” the beard, the Gemara explains that neither is commonly used to shave, and, therefore, they are excluded from this prohibition, at least min haTorah. Rabbi Eliezer contends that although they are not the most common shaving instruments, it is still called shaving when they are used and, therefore, it is forbidden min haTorah to shave with them (Rivan ad loc.). Although Rabbi Eliezer disagrees with the tanna kamma, since the majority opinion rules that these two instruments are permitted, this is the halachic conclusion.

The Gemara then makes a distinction between scissors, on the one hand, and tweezers and planes on the other, explaining that even Rabbi Eliezer rules that this prohibition of the Torah does not include cutting the beard with scissors, since this does not “destroy” your beard. Since Rabbi Eliezer rules that scissors do not violate the prohibition of shaving the beard, certainly the tanna kamma agrees. Therefore, this lo saaseh is not violated when cutting beard hairs with tweezers, planes or scissors. We should note that many authorities, nevertheless, prohibit shaving using these items, for a variety of different reasons, which we will explain in a future article.=

One blade

Even when using scissors or a beard trimmer, one must be extremely careful not to shave the beard only with the lower blade of the scissors, since this is halachically the same as cutting with a razor and prohibited min haTorah (Rema, Yoreh Deah 181:10). In other words, scissors’ action is not a razor only because the cutting uses both blades. Should one blade of the scissors be used by itself, it is functioning as a razor – the upper blade may be hanging on for the ride, but the lower blade is shaving as a razor does.

Similarly, it is prohibited min haTorah to shave using a flintstone (which was apparently common at one time in history), since this is equivalent to shaving with a razor (Shu’t Noda Biyehudah, Yoreh Deah 2:81).

Powders and Creams

Several halachic authorities rule that, just as a scissors may be used to shave the beard, so can depilatory powders and creams be used to remove the beard (Shu’t Noda Biyehudah, Yoreh Deah 2:81; Shu’t Shemesh Tzedakah Yoreh Deah #61; Birkei Yosef, to Yoreh Deah 181:10; Tiferes Yisroel, Makkos 3:5 #34). They caution against using a knife or other sharp implement to scrape off the powder or cream, since this may result in using a razor-type instrument to remove the hair, if the powder or cream did not yet separate the hair from the face. Instead, they recommend using an implement made of wood or a smooth piece of bone to wipe off the powder or cream.

We will continue this topic in a future article.

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