The Mourning Period of Sefirah – What Are the Guidelines of the Aveilus Observed During the Sefirah Weeks?

Reason for Mourning

The medrash teaches that one reason for the counting of the omer is so that we again experience the excitement of anticipating the receiving of the Torah (quoted by Ran, end of Pesachim). At the same time, it is unfortunate that this very same part of the year has witnessed much tragedy for the Jewish people. Indeed, the Mishnah (Eduyos 2:10) points out that the season between Pesach and Shavuos is a time of travail. One major calamity that befell us during this season is the plague that took the lives of the 24,000 disciples of Rabbi Akiva. They died within several weeks in one year between Pesach and Shavuos because they did not treat one another with proper respect (Yevamos 62b). The world was desolate for the loss of Torah until Rabbi Akiva went to the southern part of Eretz Yisroel to teach five great scholars, Rabbi Meir, Rabbi Yehudah, Rabbi Shimon bar Yochai, Rabbi Yosi, and Rabbi Elozor ben Shamua, who became the upholders of the future of Torah.

Again, in the time of the Crusades, terrible tragedies happened to the Jewish communities of the Rhine River Valley during the period between Pesach and Shavuos (Taz and Aruch HaShulchan, Orach Chayim 493). Some of these catastrophies are recorded in the Kinos that we recite on Tisha B’Av. The reciting of “Av HaRachamim” after Keriyas HaTorah on Shabbos was introduced as a testimonial to remember these holy communities who perished in sanctification of Hashem’s name rather than accept baptism.

What Practices Are Prohibited

At the time of the tragic passing of Rabbi Akiva’s disciples, the minhag was established to treat the sefirah period as a time of mourning and to prohibit the conducting of weddings during this season. It is interesting to note that although it is forbidden to hold a wedding during this season, if someone schedules a wedding during this season in violation of the accepted community practice, we do not penalize him for having done so (Tshuvos Geonim #278). Thus, although this person violated the community rules by scheduling the wedding, others may attend the wedding (see Igros Moshe, Orach Chayim 2:95). There are poskim who permit weddings under extenuating circumstances, such as concern that a delay may cause the engagement to be broken (Aruch HaShulchan 493:2).

In addition to abstaining from weddings, certain other mourning practices are also observed during the period of sefirah. One does not take a haircut during this season (Tur Orach Chayim Chapter 493). However, if there is a bris during sefirah, the mohel, the sandek, and the father of the baby are permitted to have their hair cut in honor of the occasion (Rema), but not the kvatter or those who are honored with “cheika” (Mishneh Brura 493:12). Those who are permitted to have their hair cut in honor of the occasion may even have their hair cut the evening before (Mishneh Brura 493:13).

Dancing is not permitted during the sefirah season (Magen Avraham). Listening to music is likewise prohibited (Igros Moshe 1:166; Minchas Yitzchok 1:111; Yechaveh Daas 3:30). One is permitted to teach, learn, or play music if it is for his livelihood (Igros Moshe 3:87). This is permitted since he is not playing for enjoyment. However, one should not take music lessons for pleasure.

Rav Moshe Feinstein ruled that if a wedding took place on Lag B’omer or before Rosh Chodesh Iyar (in places where this is the accepted practice, see below), it is permitted to celebrate the week of sheva berachos with live music and dancing (Igros Moshe, Orach Chayim 2:95). There are others who disagree (Shu”t Minchas Yitzchok 1:111. See Piskei Tshuvos Chapter 493 footnotes 39 and 81 who quotes many authorities on both sides of the question.).

Although certain mourning practices are observed during sefirah, many practices that are prohibited during the three weeks or the nine days preceding Tisha B’Av are permitted. For example, house remodeling, which is prohibited during “the nine days” preceding Tisha B’Av, is permitted during the sefirah period (Shu”t Yechaveh Daas 3:30). Similarly, although during the nine days one is discouraged from doing things that are dangerous, no such concern is mentioned in regard to the period of sefirah. Thus, although the Minchas Elozor reports that he knew of people who would not travel during sefirah, he rules that it is permitted, and that this practice is without halachic basis (Shu”t Minchas Elozor 4:44).

In a similar vein, according to most poskim, one may recite a brocha of shehechiyanu on a new garment or a new fruit during the period of sefirah (Maamar Mordechai 493:2; Kaf HaChayim 493:4). The Maamar Mordechai explains that the custom not to recite shehechiyanu is a mistake that developed because of confusion with the three weeks before Tisha B’Av when one should not recite a shehechiyanu (Maamar Mordechai 493:2). However, there are early poskim that record a custom not to recite shehechiyanu during the mourning period of sefirah (Piskei Tshuvos, quoting Leket Yosher).

It is permitted during sefirah to sing or to have a festive meal without music (Graz; Aruch HaShulchan). It is also permitted to make an engagement party (a vort) or a tnoyim during the sefirah period, provided that there is no music or dancing (Shulchan Aruch Chapter 493 and Magen Avraham).

When Do We Observe Mourning?

There are numerous customs regarding which days of sefirah are to be kept as a period of mourning. The Shulchan Aruch rules that the mourning period runs from the beginning of the sefirah counting and ends on the thirty-fourth day of the omer count (Beis Yosef and Shulchan Aruch Chapter 493; Kaf HaChayim 493:25). In his opinion, there is no celebration on Lag B’Omer, and it is forbidden to schedule a wedding on that day! The source for this opinion is a medrash that states that the plague that caused the deaths of the disciples of Rabbi Akiva ended fifteen days before Shavuos. According to Shulchan Aruch’s understanding, the last day of the plague was the thirty-fourth day of the omer. Thus, the mourning ends fifteen days before Shavuos, ending the day after Lag B’Omer.

However, the generally accepted practice is to treat the thirty-third day of the Omer count as a day of celebration (Rema and Darchei Moshe Chapter 493, quoting Maharil) because according to this tradition, the last day of the tragedy was the thirty-third day (Gra). There are several other reasons mentioned why Lag B’Omer should be treated as a day of celebration. Some record that it is celebrated because it is the yahrzeit of Rav Shimon bar Yochai, the author of the Zohar (Birkei Yosef; Chaya Odom, Klal 131:11; Aruch HaShulchan). Others say that it is celebrated because it is the day that Rabbi Shimon bar Yochai was able to leave the cave in which he had been hiding (Aruch HaShulchan). Another reason recorded for celebrating this day is because it was the day that Rabbi Akiva granted semichah to his surviving disciples (Kaf HaChayim 493:26). Others record that it was the first day that the man began falling for the Jews in the desert (Shu”t Chasam Sofer, Yoreh Deah #233 s.v. amnam yodati).

According to Maharil and Rema, the evening of Lag B’Omer should be included in the mourning period and the celebration should not begin until morning. In their opinion, Lag B’Omer is still counted as one of the thirty-three days of mourning. The aveilos period ends on the morning of Lag B’Omer because of a concept called miktzas hayom ki’chulloh, which means that the last day of mourning does not need to be a complete day (Gemara Moed Katan 19b). If one observes the beginning of the day in mourning, the entire day is included in the count of the mourning days. For this reason, someone getting up from sitting shiva does so on the morning of the seventh day. Observing mourning requirements at the beginning of the seventh day satisfies the requirement to observe the seventh day of shiva. Similarly, one satisfies the requirement to observe the thirty-third day of sefirah mourning by observing mourning only at the beginning of the thirty-third day of sefirah. According to this approach, one should not conduct a wedding on the evening of Lag B’Omer, but only in the daytime. This is because we paskin according to the opinions that the principle of miktzas hayom ki’chulloh only applies if the mourning was observed in the daytime, and it is insufficient to observe aveilos only in the evening of the seventh day.

However, there are other opinions that permit scheduling a wedding even on the evening of the thirty-third, at least under extenuating circumstances (see Gra”z 493:5; Kaf HaChayim 493:28; Igros Moshe 1:159). Some explain that since we consider Lag B’Omer to be a day of celebration, it is not counted as one of the days of mourning (see Chok Yaakov 493:6 and Kaf HaChayim 493:28). Thus, there are some poskim who contend that there are only thirty-two days in the sefirah mourning period (Gra”z 493:5). Another reason to permit scheduling a wedding the evening of Lag B’Omer is based on the opinion that rules that miktzas hayom ki’chulloh applies even when one observes the mourning only at night (Ramban in Toras HoAdam, Chavel edition page 215). Thus, according to this approach, it is sufficient to have the beginning of the night of Lag B’Omer as a mourning period. (It should be noted that according to this opinion, shiva ends in the evening of the seventh day, not in the morning.)

When Lag B’Omer falls out on Shabbos or Sunday, there is a dispute among early poskim whether one is permitted to get a haircut on Friday in honor of Shabbos. The accepted practice it to permit it (Rema 493:2 and Be’er Heiteiv ad loc.). Apparently, the combined honor of Shabbos and the approaching Lag B’Omer together supersede the mourning of sefirah. Some poskim even permit a wedding to take place on the Friday afternoon before Lag B’Omer that falls out on Sunday (Shu”t HaAlef Lecho Shelomoh, Orach Chayim #330). (Bear in mind that the custom in Europe going back hundreds of years was to schedule most weddings on Friday afternoon.)

Are those who follow the practice of observing mourning during the beginning of sefirah permitted to play music during chol hamoed? This subject is disputed by poskim, but the accepted practice is to permit music during chol hamoed (see Piskei Tshuvos 493:6).

There are several other customs that observe the mourning dates of sefirah in different ways. Some observe the mourning period the entire time of sefirah until Shavuos except for Yom Tov, Chol HaMoed, and Rosh Chodesh (and also presumably Lag B’Omer). Therefore, they permit the playing of music on Chol HaMoed and holding weddings and music on Rosh Chodesh. (One cannot have a wedding on Chol HaMoed for an unrelated reason. The sanctity of Yom Tov precludes celebrating a wedding on this day, see Gemara Moed Katan 8b.) This approach is based on an early source that states that Rabbi Akiva’s disciples died only on the thirty-three days of sefirah when tachanun is recited, thus excluding the days of Shabbos, Yom Tov, Chol HaMoed, and Rosh Chodesh (Bach, quoting Tosafos). If one subtracts from the forty-nine days of sefirah for the days of Pesach, Chol HaMoed, Rosh Chodesh, and the Shabbosos, one is left with thirty-three days. It is on these days that the mourning is observed. (This approach assumes that in earlier days they recited tachanun during the month of Nisan and during the several days before Shavuos.)

Another custom recorded is to refrain from taking haircuts or making weddings from the beginning of sefirah until the morning of Lag B’Omer, but after Lag B’Omer to observe partial mourning by refraining from weddings, although haircuts were permitted. This approach follows the assumption that the original custom of aveilus during sefirah was based on the fact that the plague that killed the disciples of Rabbi Akiva ended on Lag B’Omer. Later, because of the tragedies of the Crusades period, the custom developed not to schedule weddings between Lag B’Omer and Shavuos. However, the mourning period accepted because of the tragedies of the Crusades was not accepted as strictly, and it was permitted to take haircuts (Taz 493:2).

Still others have the custom that the mourning period does not begin until after Rosh Chodesh Iyar but then continues until Shavuos (Maharil, quoted by Darchei Moshe 493:3). This approach assumes that the thirty-three days of mourning are contiguous, but that the mourning period does not begin until after the month of Nisan is over. In Salonica they observed a Sefardic version of this custom: They practiced the mourning period of sefirah from after Rosh Chodesh Iyar until Shavuos. However, they took haircuts on the thirty-fourth day of the sefirah count (cited by Shu”t Dvar Moshe, Orach Chayim #32).

A similar custom existed in many communities in Lithuania and northern Poland, where they kept the mourning period of sefirah from the first day of Rosh Chodesh Iyar until the morning of the third day of Sivan. According to this practice, weddings were permitted during the three days before Shavuos. This practice was based on the assumption that the disciples of Rabbi Akiva died after Lag B’Omer until Shavuos (Aruch HaShulchan, based on Gemara Yevamos). Magen Avraham reports that this was the custom in his area (Danzig/Gdansk); Chayei Adam reports that this was the practice in his city (Vilna), and Aruch HaShulchan report that this was the custom in his community (Novardok). These customs are followed to this day in communities where weddings are allowed after Pesach through the month of Nisan.

Rav Moshe Feinstein points out that although these customs differ which days are considered days of mourning, the premise of most of the customs is the same: Thirty-three days of sefirah should be observed as days of mourning in memory of the disciples of Rabbi Akiva. In Rav Moshe’s opinion, these different customs should be considered as one minhag, and the differences between them are variations in observing the same minhag (Igros Moshe 1:159). This has major halachic ramifications, as we shall see.

Can One Change From One Custom to Another?

We would usually assume that someone must follow the same practice as his parents – or the practice of his community –­­ because of the principle of al titosh toras imecha, “do not forsake the Torah of your mother (Mishlei 1:8)”. This posuk is understood by chazal to mean that we are obligated to observe a practice that our parents observed. However, Rav Moshe Feinstein contends that since the different customs that are currently observed are all considered to be one minhag, changing from one custom to another is not considered changing one’s minhag, and it is therefore permitted. There is ample evidence that other, earlier poskim also agreed that a community may change its custom how it observes the mourning days of sefirah (see Shut Chasam Sofer, Orach Chayim #142). According to this opinion, the specific dates that one observes are not considered part of the minhag and are not necessarily binding on each individual, as long as he observes thirty-three days of sefirah mourning.

How Should a Community Conduct Itself?

Rama rules that although each of the various customs mentioned has halachic validity (Darchei Moshe 493:3), each community should be careful to follow only one practice, and certainly not follow the leniencies of two different customs. This is because if a community follows two different practices, it appears that Hashem’s chosen people are following two different versions of the Torah, G-d forbid.

Rav Moshe Feinstein points out that the Rama is discussing a community that has only one besdin or only one Rav. Under these circumstances, the entire community must follow the exact same practice for sefirah. However, in a city where there are many rabbonim and kehilos, each of which has its own custom regarding the observance of sefirah, there is no requirement for the entire community to follow one practice (Igros Moshe 1:159). Thus, there is no requirement that everyone in a large city follow the same custom for sefirah, unless it has been accepted that the community has one standard custom.

Of course. as in all matters of halacha, each community should follow its practices and Rabbonim, and each individual should follow the ruling of his Rav.

Attending a Wedding During One’s Sefirah Mourning

If a friend schedules a wedding for a time that one is keeping sefirah, is it permitted to attend? One is permitted to attend and celebrate a wedding during his sefirah mourning period, even listening to music and dancing there (Igros Moshe 1:159).

Thus, although I am required to have a mourning period during sefirah of at least thirty-three days, I may attend the wedding of a friend or acquaintance that is scheduled at a time that I keep the mourning period of sefirah. However, Rav Moshe rules that if one is going to a wedding on a day that he is keeping sefirah, he should not shave, unless his unshaved appearance will disturb the simcha (Igros Moshe 2:95).

We should all hope and pray that the season between Pesach and Shavuos should cease from being a time of travail, but instead revert to being a time of total excitement in anticipation of the receiving of the Torah.




Chol HaMoed – Weekday or Yom Tov?

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

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

Question #3: I am visiting my parents in Chutz La’Aretz for Yom Tov. I know that I must keep two days of Yom Tov while visiting them, but does that permit me to cook on Chol HaMoed for their Simchas Torah?

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

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

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

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

DEFINING WORK ON CHOL HAMOED

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

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

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

There are three basic interpretations of this Gemara:

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

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

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

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

This last reason is a theme that lies behind the complex details of hilchos Chol HaMoed; we desist from activity that detracts from the purpose of Yom Tov. For this reason, Chazal prohibited some activities on Chol HaMoed that are not necessarily melacha but nonetheless detract from the Yom Tov experience.

These prohibited activities include:

1. Commerce that is not necessary for the festival.

2. Moving to a new residence.

COMMERCIAL ACTIVITY

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

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

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

MOVING

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

EASY WORK

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

FOOD PREPARATION

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

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

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

MAASEH HEDYOT, UNSKILLED WORK

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

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

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

MAY I REPAIR A GARMENT FOR YOM TOV WEAR?

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

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

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

“A WORKER WHO DOES NOT HAVE FOOD TO EAT”

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

DAVAR HA’AVUD, FINANCIAL LOSS

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

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

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

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

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

LAUNDRY

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

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

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

WORK THROUGH A GENTILE

May a gentile do work on my behalf on Chol HaMoed that Chazal prohibited me to do myself?

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

WHY IS THIS CASE DIFFERENT?

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

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

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

2. I do not instruct him to work on Chol HaMoed, and I hire him before Yom Tov.

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

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

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

HOW CAN CHOL HAMOED BE STRICTER THAN SHABBOS?

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

However, on Chol HaMoed a frum Jew might be traveling and see Tim mowing Friedman’s lawn and think that a Jew hired Tim to work on Chol HaMoed. Therefore, Tim may not mow the lawn or trim the hedges on Chol HaMoed (Gemara Moed Katan 12a; Shulchan Aruch, Orach Chayim 543:2). (The irony is that he may on Shabbos or Yom Tov!)

Chol HaMoed provides many unique mitzvah opportunities. By observing it properly, we demonstrate the tremendous os between Hashem and us. May we always merit to demonstrate Hashem’s presence amongst us and in His world!!




Making Our Days Count

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A Review of the Halachos of Sefiras HaOmer

In Parshas Emor, the Torah teaches: “Hashem spoke to Moshe saying, Speak to the Children of Israel and say to them: ‘When you enter the land that I am giving to you and you will cut its harvesting, then you shall bring an omer-sized portion from the first of its harvest to the Kohen. And he (the Kohen) shall wave the omer before Hashem for your benefit, on the day after the ‘day of rest’ the Kohen shall wave it… And you should count for yourselves from the day after the ‘day of rest, from the day you bring the omer of waving, until there will be seven complete weeks. Until the day after the seventh week, you shall count fifty days.’” (Vayikra 23:9-11,15-16). It should be noted that the words in the posuk, mimacharas hashabos, which we have translated as the “the day after the ‘day of rest,’” would usually be translated “the day after Shabbos”. However, the Oral Torah (Torah shebaal peh) teaches us that the words “day of rest” here mean the first day of Pesach (Menachos 65b). Thus, the omer offering is brought on the second day of Pesach, whether or not that date falls on the day after Shabbos. From the day that we bring the omer offering we begin to count the omer, until we complete the counting of seven weeks.

The Gemara recounts a fascinating story that occurred at the time of the Second Temple. There was a group of non-believing Jews, the Baytusim, who disregarded the teachings of Chazal. (Indeed, the Baytusim also disavowed belief in reward and punishment and other basic Jewish tenets, see Avos diRabbi Nassan, Chapter 5:2). Since the Baytusim followed their own interpretation of the posuk, they decided that the korban omer must be offered on a Sunday and not necessarily on the second day of Pesach. They plotted to have Rosh Chodesh Nisan fall out on Shabbos, realizing that the second day of Pesach would then fall out on Sunday. The result would be that the korban omer would be offered on Sunday, even though it was not supposed to happen that particular year.

The Baytusim were so determined to have the korban omer offered on Sunday that they hired false witnesses in an attempt to manipulate the main Besdin to declare Rosh Chodesh Nisan on a Shabbos. Fortunately, one of the witnesses that they hired did not believe in the Baytusi creed and told the Rabbonim about the plot (Gemara Rosh HaShanah 22b). Because of this event, major changes were instituted in the type of witnesses accepted by the Besdin (Rosh HaShanah 22a).

As mentioned above, the mitzvah of counting omer begins from the day that the korban omer is offered. This implies that when there is no korban omer, there is no requirement min hatorah to count the omer (Menachos 66a). Indeed, most poskim contend that since there is unfortunately no Beis Hamikdash today and there are no korbanos, there is no mitzvah min hatorah to count omer (Ran, end of Pesachim; see Shulchan Aruch 489:3 and Mishnah Berurah). However, Chazal instituted that we should count omer even though there is no Beis Hamikdash in order to remember the mitzvah as it was at the time of the Beis HaMikdash. (Menachos 66a).

Details About the Counting

Before counting the Omer, we recite a brocha on the performing of the mitzvah. One should be careful to stand while reciting both the brocha and the counting (Rosh, end of Pesachim; Shulchan Aruch 489:1).

The Torah states: “And you should count for yourselves… seven complete weeks. Until the day after the seventh week, you shall count fifty days.” It is noteworthy that the Torah makes two statements, one that we should count seven weeks, and a second that we should count fifty days. Based on this observation, the Gemara derives that there are two mitzvohs, one to count the days and the other to count the weeks (Menachos 66a).

Tosafos raises the following question: Why does the Torah say, “Until the day after the seventh week, you shall count fifty days,” if the mitzvah is to count for only forty-nine days? Tosafos explains that the verse should be translated: “Until the day after the seventh week, which is the fiftieth day, shall you count” (Menachos 65b s.v. Kasuv.) According to this translation, there is a mitzvah to count up until the fiftieth day, which is Shavuos, but that there is no mitzvah to count the fiftieth day itself.

As mentioned above, the Gemara rules that there is a mitzvah to count the weeks. Obviously, there is no mitzvah to count the weeks until the end of the first week — at which point there is a mitzvah to state that one week of counting has been completed. From this point on, is there a mitzvah to mention the weekly count every day, or is it sufficient to count the weeks only at the end of each week? According to the latter interpretation, one counts the weeks only seven times, once at the end of each week (Tur, quoting Yesh Omrim). However, the accepted opinion is that every day of sefirah (except for the first six days) one counts the number of days and then one calculates how many weeks and days. Thus, on the eleventh day of sefirah we count, “Today is eleven days, which is one week and four days in the omer” (Shulchan Aruch, Orach Chayim 489:1). (According to the first opinion cited above [that of Tur, quoting Yesh Omrim], there is no mitzvah to count the weeks on the eleventh day. According to this opinion, the entire counting is: “Today is eleven days.”)

Some Practical Applications

Someone who counts the wrong number has not fulfilled the mitzvah. However, if he remembered immediately and corrected his error, he has fulfilled the mitzvah (Mishnah Berurah 489:32).

One should not recite the blessing without knowing the day’s exact count, even if he knows that he will hear the correct count from someone else immediately. Rather, one should first find out what the correct count is before reciting the blessing (Mishnah Berurah 489:29 and Shaar HaTziyun ad loc.).

Sefirah can be counted in any language, provided one understands what he is saying. Someone who does not understand what he is saying has not fulfilled the mitzvah, even if he counts in Hebrew (Magen Avraham).

A very common question is whether one who missed counting one day of sefirah may still recite a brocha when he counts the remaining days. Some early poskim contend that someone who missed counting one day has no mitzvah to count the remaining days since his counting of forty-nine days is no longer complete (Tur, quoting Bahag). According to this opinion, someone who missed one day may continue to count sefirah, but he is forbidden to recite a brocha since he is no longer fulfilling a mitzvah. However, other poskim contend that missing one day does not affect the upcoming days. In their opinion, each day there is a mitzvah to count the sefirah of that day even if one has not counted the preceding days (Tur, quoting Rav Hai Gaon). Shulchan Aruch (489:8) treats this shaylah as an unresolved issue. Thus he rules that someone who missed counting one day of sefirah should count the remaining days without a brocha. The count should continue because it is possible that he is still fulfilling the mitzvah. Yet he does not recite a brocha, because if he is no longer fulfilling a mitzvah the brocha would be a brocha li-vatala (a brocha recited in vain).

In this case, and all other cases where there is a doubt whether one is still fulfilling the mitzvah, it is preferable to hear the brocha from someone who is definitely required to count (Mishnah Berurah ad loc.). The person reciting the brocha must have in mind to include the other person in his brocha, and the person who is not reciting the brocha must have in mind to be included in the brocha. If there is no one available to make the brocha for him, he should count sefirah without a brocha.

An Interesting Shaylah

There is another interesting shaylah that results from the above-mentioned dispute whether each day’s sefirah counting is dependent on still having a complete count: Does a boy who becomes bar mitzvah between Pesach and Shavuos recite a brocha on the counting of sefirah? Even if the twelve-year old was counting sefirah every night very diligently, he was not fulfilling a mitzvah since he was still a minor. Thus, if the mitzvah of counting sefirah is dependent on a complete count, the bar mitzvah bochur may not have a complete sefirah count.

Many poskim discuss this issue and there is no common agreement what to do. (See for example, Birkei Yosef 489:20; Shaarei Tshuva 489:20; Shu”t Maharam Shick #269; Shu”t Har Tzvi 2:76.) Therefore, one should ask his Rav for a ruling on this shaylah.

As we mentioned above, someone who missed one day of sefirah should continue counting but without a brocha. However, someone who is not sure if he missed counting one day may still count with a brocha (Shulchan Aruch 489:8). Since it is not certain that his counting is incomplete, he can rely on the possibility that his counting is still complete with the possibility that the halacha is that one can recite a brocha even if the count is incomplete. This concept is called a sfek sfeika, which means that there are two possibilities why it is permitted to do something. In this case, the two possibilities that it is acceptable to recite the brocha allow him to recite a brocha.

Similarly, in any other case where it is questionable whether he fulfilled the requirement to count, or where the law is that he should count without a brocha on a particular night, the halacha is that he may proceed to continue counting the next night with a brocha (Mishnah Berurah 489:38).

If on a given night someone counted sefirah without reciting a brocha first, he may not recite the brocha afterwards for that day’s counting. Although he fulfilled the mitzvah of counting omer that night, he is unable to fulfill the mitzvah of making a brocha on the counting. Therefore, one should be careful not to tell someone what night of sefirah it is before one has fulfilled the mitzvah (Shulchan Aruch 489:4). The accepted practice is to respond to the question “What night is it?” by stating what was the count of the previous day.

Some Unusual Applications

What is the halacha if someone alluded to the correct number of the day’s omer count, but did so in an unusual way? For example, has someone fulfilled the mitzvah if he counted on the thirty-ninth day of the omer that today is “forty days minus one”? Is this considered a valid method of counting thirty-nine days, or must one count thirty-nine in a direct way? The halacha is that this unusual method of counting is considered counting, and he has fulfilled the mitzvah (Be’er Heiteiv 469:6).

Another shaylah about an unusual method of counting has very common application.

In Hebrew, one can allude to a number by reciting the Hebrew letter or letters that represent it. For example, one could attempt to count the eleventh day of sefirah by stating that today is yud alef b’omer, or attempt to count the thirty-third day of sefirah by counting that today is lag b’omer. Poskim dispute whether one fulfills the mitzvah if one counts this way. Whereas some poskim rule that this is a valid method of counting, other poskim rule that he has not fulfilled the mitzvah since he did not count the number explicitly (Shaarei Tshuvah 489:6).

There is a very common shaylah that results from this dispute. On the evening of Lag B’omer someone stated “tonight is Lag B’omer” before he counted sefirah. Can he still recite a brocha on the counting of sefirah that night, or do we say that he has already counted for that night and cannot recite the brocha anymore? Biyur Halacha rules that this issue remains unresolved. Therefore, one should count in the regular way to make certain he fulfills the mitzvah, but without a brocha since it is a doubt whether he is still obligated to perform the mitzvah (Biyur Halacha 489:1 s.v. moneh). On subsequent nights he would be able to resume counting with a brocha.

The Korban Omer was harvested at night, hence the mitzvah of counting Omer is at night. If the omer was not harvested at night, there is a dispute among poskim whether it could be harvested instead in the daytime (Tosafos Menachos 66a). The same dispute is reflected in a different shaylah that is germane to each of us: If someone forgot to count the omer at night, can he still fulfill the mitzvah if he counts in the daytime? Since the matter is disputed, he should count in the daytime, but without a brocha, since we refrain from making a brocha whenever it is uncertain whether one is performing a mitzvah (Shulchan Aruch 489:7). The accepted psak halacha is that he may resume counting with a brocha the following evening (Mishnah Berurah 489:34).

What Happens if…

As we mentioned above, according to most poskim the mitzvah of counting the omer is only rabbinic in our era since unfortunately the Beis HaMikdash is destroyed. Some poskim contend that since the counting is only midirabanan one is permitted to count the omer before it is definitely nightfall (Rosh and other Rishonim, end of Pesachim). Thus, the practice developed in some communities to count the omer during twilight even though it is uncertain whether it is day or night. Shulchan Aruch rules that one should preferably wait until after nightfall to count. However, someone who is davening in a shul where the people are counting before nightfall is permitted to count with them lest he forget to count later (see Shulchan Aruch 489:2-3). In this situation, Shulchan Aruch rules that he should count together with the shul without a brocha and have in mind that if he remembers later, he will count again. If he indeed remembers to count again, then he recites a brocha and counts a second time.

This ruling seems very strange. How can one count the second time with a brocha—didn’t he fulfill the mitzvah the first time he counted? Counting with a brocha should be a brocha li-vatala, a brocha recited in vain!

The answer is that when he counted the first time, he made an automatic condition that if he indeed remembers to count again later, he does not want to fulfill the mitzvah now. It is considered that he specified that he does not want to fulfill the mitzvah. However, if he forgets to count later, then the first counting he performed is valid, since his condition was not fulfilled. Thus, he will rely on the opinions that counting sefirah before nightfall is valid, and he may resume counting the following night with a brocha.

Is writing out the number count of the sefirah considered counting sefirah? If someone wrote a letter before he had counted sefirah, and he dated the letter with that night’s sefirah count, may he still count sefirah with a brocha? This issue is discussed at length by poskim. The conclusion is that although writing shows the intention of the person, it does not constitute speaking. When a mitzvah requires one to speak, such as saying Shma, reciting tefila, or counting omer, one does not fulfill his mitzvah by writing. Thus, someone who dated a letter with the night’s sefirah count before he counted sefirah can still recite a brocha on the night’s sefirah count.

As mentioned above, the Torah associates the counting of the sefirah with the offering of the korban omer. An additional idea is conveyed by the Medrash. When the Jews brought the Pesach offering in Egypt, they were eager to receive the Torah immediately. When they asked Moshe, “When do we receive the Torah?” he answered them, “On the fiftieth day”. In their enthusiasm, each of them counted every day, eagerly awaiting the exciting day on which they would receive the Torah. In commemoration of this event, we count the days from Pesach until Shavuos. (This Medrash is quoted by Ran at the end of Mesechta Pesachim.) We should all be zocheh to anticipate receiving the Torah anew on Shavuos with the same excitement and enthusiasm that our ancestors had.




Indigestible Matzos, or Performing Mitzvos When Suffering from Food Allergies

clip_image002[1]Question #1: I have acid reflux, and as a result I never drink any alcohol since it gives me severe heartburn. I also have difficulty tolerating grape juice, which does not agree with me. Am I required to drink either wine or grape juice for the four cups at the Seder?

Question #2: My body is intolerant to gluten. Am I required to eat matzoh on Pesach, and if so, how much?”

Question #3: How far must one go to fulfill the mitzvah of maror when the only variety available is straight horseradish?

Consuming matzoh, maror, wine or grape juice is uncomfortable for many people for a variety of reasons. Consumption of these foods exacerbates many medical conditions, such as allergies, diabetes, celiac disease, Crohn’s disease, irritable bowel syndrome, and reflux. To what extent must someone afflicted by these conditions extend him/herself to fulfill these mitzvos? Does it make a difference whether the mitzvah is required min haTorah, such as matzoh, or only miderabbanan, such as arba kosos, the mitzvah of drinking the four cups of wine at the Seder. (Similarly, the mitzvah of maror, is required today only miderabbanan since the Torah requires eating maror only when we offer the korban pesach.)

PIKUACH NEFESH

One is never required to perform a positive mitzvah when there is a potential threat to one’s life. Quite the contrary, it is forbidden to carry out any mitzvah whose performance may be life threatening. Therefore, someone who has a potentially life-threatening allergy to grain may not consume matzoh or any other grain product – ever — and this prohibition applies fully on Seder night.

NOT DANGEROUS BUT UNPLEASANT

However, must one observe these mitzvos when the situation is not life threatening, but is painful or affects one’s wellbeing? Must one always fulfill the mitzvah even though doing so is extremely uncomfortable or makes one unwell? As always, our column is not intended to provide psak halacha; that should be left for one’s personal rav. Our goal is to provide halachic background.

RABBI YEHUDAH’S HEADACHE

The Gemara reports that the great Tanna Rabbi Yehudah, who is quoted hundreds of times in the Mishnah and Gemara, suffered from the consumption of wine. The Gemara tells us the following anecdote:

Rabbi Yehudah looked so happy that a Roman woman accused him of being inebriated. He responded that he is a teetotaler, “Trust me that I taste wine only for kiddush, havdalah and the four cups of Pesach. Furthermore, after drinking four cups of wine at the Seder, I have a splitting headache that lasts until Shavuos” (see Nedarim 49b).

This passage implies that one is required to undergo a great deal of discomfort to fulfill even a mitzvah that is rabbinic in origin, and certainly a Torah-required law, such as consuming matzoh on Pesach. Based on this anecdote, the Rashba (Shu”t 1:238) requires someone who avoids wine because he despises its taste or because it harms him (“mazik”) to drink the four cups; this conclusion is quoted definitively in Shulchan Aruch (Orach Chayim 472:10). Thus, one might conclude that one must fulfill arba kosos in any non-life-threatening situation even when the consequences are unpleasant.

However, several authorities sanction abstaining from arba kosos under certain extenuating, but not life-threatening, circumstances, even though they also accept the ruling of the Shulchan Aruch! For example, the Aruch HaShulchan (472:14) permits someone who is ill to refrain from consuming the four cups on Seder night and the Mishnah Berurah rules similarly (472:35). They explain that the harm (in Hebrew, mazik) one must undergo to fulfill the mitzvah does not include physical harm, but is limited to discomfort or moderate pain.

DERECH CHEIRUS

In Shaar HaTziyun, the Mishnah Berurah explains why he permits refraining from arba kosos under such circumstances: Becoming bedridden because one consumed arba kosos is not derech cheirus, which I will translate as demonstrating freedom. His reference to derech cheirus alludes to the following Gemara:

One who drinks the wine undiluted has fulfilled the requirement of arba kosos, but he did not fulfill the requirement of demonstrating freedom (Pesachim 108b).

What does this Gemara mean? Why does drinking one’s wine straight not fulfill this mitzvah called demonstrating freedom?

The wine of the Gemara’s era required one to dilute it before drinking. Imbibing it straight was not the normal method of drinking and therefore does not demonstrate the freedom that the Seder emphasizes.

The Mishnah Berurah contends that a mitzvah whose purpose is to demonstrate that we are freemen cannot require becoming bedridden as a result. Although a potential massive headache, such as what affected Rabbi Yehudah, does not exempt one from the mitzvah, becoming bedridden is qualitatively worse. The Aruch HaShulchan rules similarly, although he omits the reasoning of derech cheirus, and simply assumes that the mitzvah could not apply under these circumstances.

(There may be a difference in opinion between the Mishnah Berurah and the Aruch HaShulchan germane to mitzvas maror. The Mishnah Berurah’s reason of derech cheirus applies only to the arba kosos, and therefore he might hold that one must eat maror even if he becomes bedridden as a result. However, the Aruch HaShulchan’s ruling may apply to any rabbinic mitzvah, and thus permit someone who would become ill from eating maror to abstain from performing this mitzvah.)

ALCOHOLIC CONTENT

Let us assume that our patient could drink grape juice without any ill result, but may have some difficulty with wine. Is there a requirement for him/her to drink wine?

The Gemara states that “One may squeeze a cluster of grapes and then immediately recite Kiddush over it” (Bava Basra 97b). Obviously, this grape juice has no alcoholic content, and yet it is acceptable for Kiddush.

However, the Gemara’s ruling that someone who drank the arba kosos without dilution does not fulfill cheirus implies that the Seder mitzvah requires a wine with alcoholic content, and therefore grape juice does not perform this aspect of the mitzvah. Nevertheless, someone who cannot have any alcohol may fulfill the mitzvah of arba kosos with grape juice (Shu”t Shevet HaLevi 9:58).

DILUTING WINE

Is it better for someone to dilute their wine with water rather than drink grape juice?

Some authorities contend that one fulfills this concept of cheirus as long as one can detect alcoholic content, even though the wine is diluted. However, before diluting our wine with water, contact the manufacturer or the hechsher, since some wines are already diluted to the maximum halachically allowable and still recite over it hagafen. The Pri Megadim (Eishel Avraham 204:16) rules that although Chazal diluted their wine significantly (Shabbos 77a), our wine is very weak and should be diluted very moderately. He contends that if one adds more water than wine the bracha becomes shehakol; one can certainly not use this wine for Kiddush or arba kosos. The Aruch HaShulchan (204:14) rules even stricter, that any added water renders our wines into shehakol and invalidates them for Kiddush or arba kosos. I suspect that this was not a dispute, but a reflection of the quality of the wine available; the wine available to the Pri Megadim could be diluted without ruining it as long as there was more wine than water, whereas that available to the Aruch HaShulchan was easily ruined.

On the other hand, diluting wine with grape juice does not jeopardize the bracha, and if the alcohol content is still noticeable still fulfills the concept of cheirus.

ARBA KOSOS SUBSTITUTES

If someone cannot drink four cups of wine or grape juice, should they simply not drink anything for the arba kosos?

The Mishnah Berurah rules that one may substitute chamar medinah, literally, the national “wine.” This follows a ruling of the Rama (483) that someone who has no available wine may fulfill the mitzvah of arba kosos with chamar medinah.

Exactly what chamar medinah includes is beyond the scope of this article. For our purposes, I will simply note that there is much discussion about this matter, some rabbonim holding that tea or coffee qualifies, others contending that it must be alcoholic, and still others maintaining that most places today have no chamar medinah.

SOME PRACTICAL SUGGESTIONS

Thus far, we have concluded that someone who will become ill enough to be bedridden may not be obligated in arba kosos, but someone who finds drinking four cups of wine or grape juice uncomfortable and even painful, but does not become bedridden as a result, is required to drink them. However, note that sometimes one may be more lenient and use a smaller cup and drink a smaller proportion of its wine than we would usually permit. These are matters to discuss with one’s rav.

WHAT ABOUT MATZOH?

Our second question above read: “My body is intolerant to gluten. Am I required to eat matzoh on Pesach, and if so, how much?”

Our previous discussion only explained the rules pursuant to drinking the four cups of wine, which is a rabbinic mitzvah. Does any leniency exist to exempt someone from eating matzoh Seder night in non life-threatening situations? Granted, that one is certainly not required or permitted to eat matzoh if doing so may be life threatening, but if the results are simply discomfort, to what degree must one extend oneself to observe a positive mitzvah min hatorah?

The Binyan Shelomoh (#47), a nineteenth century work authored by Rav Shelomoh of Vilna, the city’s halachic authority at the time, discusses this very issue. (Out of deference to the Vilna Gaon, the Jewish community of Vilna appointed no one to the title of rav from the passing of the Gaon until the government required them to do so in the era of Rav Chayim Ozer Grodzenski over a hundred and twenty years later.) In a lengthy responsum, The Binyan Shelomoh establishes how far must someone ill go to eat matzoh when there is nothing life threatening. He based his analysis on the following law:

Chazal prohibited spending more than one fifth of one’s money to fulfill a positive mitzvah (Rambam, Hilchos Arachin 8:13, based on Gemara Kesubos 50a. See also Rambam’s Peirush HaMishnayos Pei’ah 1:1).

The Binyan Shelomoh reasons that since maintaining good health is more important to most people than spending a fifth of one’s money, one is exempt from performing a mitzvah that will impair one’s health even when there is no risk to one’s life. (We find other authorities who derive similar laws from this halacha. See for example, Shu”t Avnei Nezer, Yoreh Deah #321; Shu”t Igros Moshe, Even HaEzer 1:57). The Binyan Shelomoh applies this rule to all mitzvos: One is exempt from observing any mitzvah if fulfilling it will seriously impair one’s health. Furthermore, one could conclude that if fulfilling a mitzvah causes such intense discomfort that one would part with one fifth of one’s financial resources to avoid this pain, one may forgo the mitzvah.

According to the Binyan Shelomoh, if this law is true regarding matzoh, it will certainly hold true regarding arba kosos and maror, which are only rabbinic requirements. Thus, someone who will not be bedridden as a result of consuming arba kosos or maror, but whose health will be severely impaired as a result of this consumption is absolved from fulfilling this mitzvah, as will someone to whom the consumption is so unpleasant that he would gladly part with one fifth of his earthly possessions to avoid this situation.

DIFFERENCE BETWEEN MATZOH AND WINE

If we assume that the Mishnah Berurah accepts the Binyan Shelomoh’s approach and vice versa, we would reach the following conclusion:

MATZOH:

Someone whose health will be severely impaired is not required to eat matzoh on Pesach, even if no life-threatening emergency results.

ARBA KOSOS:

In addition to the above leniencies regarding matzoh, there is an additional lenience regarding the arba kosos. Someone who will become sick enough that they will become bedridden is absolved from drinking four cups at the Seder, even though it will not result in any permanent health problems. However, it is unclear whether this latter leniency also extends to the rabbinic mitzvah of maror.

NON-WHEAT FLOURS

In the last few years, matzoh for Pesach produced from either spelt or oat flour has become available. For a variety of reasons beyond the scope of this article, only someone who may not eat regular matzoh should eat these matzohs on Pesach. However, someone who is absolved from eating matzoh on Pesach according to the above-mentioned definition, but who can eat either of these varieties of matzoh, should eat them to fulfill the mitzvah on the first night of Pesach. Someone who can tolerate both spelt and oat matzoh should eat spelt.

No discussion of this topic is complete without mention of the following responsum by the great nineteenth century authority, the Maharam Shik (Shu”t #260). Someone for whom eating matzoh or maror is potentially life threatening insisted on eating them at the Seder against the halacha. The Maharam Shik was asked whether this person should recite the bracha al achilas matzoh before eating the matzoh and al achilas maror before eating the maror!

The Maharam Shik responded that he is uncertain whether the patient may recite any bracha at all before eating the matzoh and the maror, even the bracha of hamotzi! His reason is that consuming harmful food is not considered eating, but damaging oneself, and one does not recite a bracha prior to inflicting self-harm! The Maharam then questions his supposition, demonstrating that someone who overeats recites a bracha even though he is clearly damaging himself. He therefore concludes that one does not recite a bracha when eating something that causes immediate damage. However, when eating something where the damage is not immediate, reciting a bracha before eating is required.

Pursuant to the original shaylah whether one recites al achilas matzoh before eating the matzoh, and al achilas maror before eating the maror, the Maharam Shik concludes that one should not recite these brachos in this situation. Since the patient is not permitted to eat matzoh and maror since it is dangerous to his life, he is not performing a mitzvah when eating them, but a sin of ignoring the proper care his body requires, and one does not recite a bracha prior to transgressing.

In conclusion, anyone to whom these shaylos are unfortunately relevant should discuss them with his/her rav. We found that the Shulchan Aruch rules that one is required to fulfill arba kosos even if one will suffer a severe headache as a result, and certainly if one despises the taste. However, should one become bedridden as a result or suffer severe health consequences, there are authorities who permit forgoing drinking wine or grape juice and substituting a different beverage instead that qualifies as chamar medinah. Similarly, there are authorities who permit forgoing consuming matzoh at the Seder if one would suffer severe health consequences as a result even if the situation is not life-threatening.

Although not everyone may be able to fulfill the mitzvos of eating matzoh, maror, and arba kosos, hopefully, all will be able to discuss the miracles that Hashem performed when removing us from Egypt. In the merit of joyously performing the mitzvos of Seder night, may we soon see the return of the Divine Presence to Yerushalayim and the rededication of the Beis HaMikdash, and be zocheh to fulfill all of these mitzvos including the korban pesach!




The Matzoh Shoppers Guide

clip_image002The Four Questions of Matzoh Purchasing

The First Question Is: On all other nights of the year we do not check our matzoh and bread, although we sometimes check our flour before we bake with it; on this night of Pesach we check our matzoh before eating it. For what are we checking?

The Second Question Is: On all other nights of the year we eat any kind of matzoh; on this night of Pesach, some people eat only hand matzoh, others eat only machine-made machine, and still others eat hand matzoh for the bracha and machine matzoh afterwards. What is the basis for these different practices?

The Third Question Is: On all other nights of the year we prepare our food leisurely; on this night of Pesach we eat matzoh advertised as special “18-minute matzoh.” But I thought that matzoh dough becomes chometz after 18 minutes, so all matzoh left around longer than 18 minutes before baking should be chometz. So what is special about 18-minute matzoh?

The Fourth Question Is: On all other nights of the year, no guests arrive early in order to “lift up” their food before Yom Tov, but on this night of Pesach some guests arrive before Yom Tov in order to “lift up” the matzos they intend eating at the Seder. Why do only some of my guests ask me if they can do this?

“Father, what is the answer to my four questions?”

“Son, before I answer your excellent questions, hearken to how matzoh is made.”

WE WERE ONCE SLAVES IN EGYPT

Although matzoh is the simplest of products, simply flour and water, much detail is involved at every step to process it halachically correctly. The matzoh that we eat to fulfill the mitzvah on Seder night must be “guarded,” or supervised, to guarantee that it did not become chometz.

The mitzvah of matzoh on Seder night is fulfilled exclusively with matzoh produced lishmah – that is, protecting it from becoming chometz for the sake of the mitzvah. Thus, even if we know by remote-control camera that matzoh was produced 100% kosher for Pesach, but a well-trained team of chimpanzees manufactured it, one cannot use this matzoh to fulfill the mitzvah on Seder night because it was not produced lishmah. Only adult Jews can produce matzoh lishmah (Shulchan Aruch Orach Chayim 460:1). Therefore, before beginning work each day in a matzoh bakery the workers must say: Kol mah she-ani oseh hayom, hareini oseh lisheim matzos mitzvah, “Everything that I am doing today, I am doing for the sake of producing matzos that will be used for the mitzvah.”

Although the Gemara (Pesachim 40a) discusses preparing matzoh lishmah, it is unclear how early in its production one must have active concern that it not become chometz. We need not plant the wheat for the sake of the mitzvah, since nothing at this stage can make the product chometz-dik. Until the grain can become chometz, there is no need to guard it lishmah from becoming chometz.

The early poskim have three opinions concerning the stage when one must prepare matzoh lisheim matzos mitzvah:

(1) From the time of harvesting, which is the earliest time the grain can usually become chometz.

(2) From the time of grinding, at which time it is more probable that the flour could become chometz. In earlier times, most flour mills were located alongside rivers and used the flow of the river as their power source. Thus, there is great concern that the flour could become wet and begin to leaven.

(3) From the time of kneading, when one must certainly be concerned about the possibility of chimutz (fermentation).

Shulchan Aruch (Orach Chayim 453:4) concludes that it is preferable to guard the wheat lishmah from the time of the harvesting, but that it is satisfactory to use wheat that supervised only from the time of grinding. Other poskim require lishmah from the time of the harvest (Pri Chodosh). Nowadays, shmurah matzoh generally refers to matzoh that was supervised against chimutz from the harvest.

HARVESTING CONCERNS

Fully ripe grain can become chometz even while still connected to the ground (Piskei Tosafos, Menachos 208). Thus, in order to guarantee that the grain harvested for matzoh does not become chometz, it is harvested early, before it is fully ripe (Chayei Odom 128:2; Mishnah Berurah 453:22; Bi’ur Halacha to 453:4 s.v. Tov) and when it is dry. Furthermore, we cut the wheat in the afternoon of a dry day to allow the night’s dew to evaporate in the morning. Before cutting the wheat, someone checks to see that it has not yet sprouted. A combine used to harvest shmurah wheat must be clean and dry.

The poskim dispute whether a non-Jew may operate the combine when it harvests the wheat, or whether a Jew must operate it (Sefer Matzos Mitzvah pg. 26). According to the second opinion, harvesting lishmah requires that someone who is commanded to observe the mitzvah actually cuts the grain – and operating a large combine is technically equivalent to swinging a sickle.

Sometimes, it seems that life was simpler when people harvested wheat by hand. A friend of mine born in the Soviet Union once described how his father harvested wheat for matzoh baking with a hand sickle. Even today, some people are mehader to use hand-cut flour for their Seder matzos.

After cutting, the wheat must be stored and transported in a way that guarantees that it remains dry (Sdei Chemed, Vol. 7 pg. 383), and one must make sure that it always remains shamur by an observant Jew (Bi’ur Halacha 453:4 s.v. ulipachos). Furthermore, one must be careful to store it a way that it does not become infested by insects. One must also check grain samples for signs of sprouting, which is considered a chimutz problem (see Rama 453:3). There is a well-established custom that an experienced posek checks the grains before they are ground (Daas Torah to 453:1 s.v. ve’od).

GRINDING THE FLOUR

As mentioned above, most poskim require supervising the grain lishmah from chimutz from the time it is ground into flour. Nowadays, matzoh sold as kosher l’pesach is supervised at least from the time it is ground. This should include care that the wheat was not soaked before it was ground, which is common practice in many places. Furthermore, a mashgiach must carefully inspect the milling equipment to ensure that no non-Passover flour remains in the grinders and filters.

Chazal instituted many halachos to guarantee that the dough does not become chometz prematurely. For example, one should not bake matzoh with freshly-ground flour, but wait a day or two after the grinding to allow the flour to cool so that it does not leaven too quickly (Shulchan Aruch 453:9). They were also concerned that one should not bag the Pesach flour in old sacks previously used for chometz-dik flour. In many countries, non-Pesach grains are covered with leaves before grinding in order that they should be moist when they are ground. This facilitates separating the different parts of the kernel. Of course, this is prohibited for Pesach-dik flour.

SPECIAL WATER: MAYIM SHELANU

Pesach matzoh must be baked exclusively with mayim shelanu, water that remained overnight (Gemara Pesachim 42a). This means that one draws water from a spring, well, or river immediately before twilight and leaves it in a cool place for a minimum of one complete night to allow it to cool (Shulchan Aruch Orach Chayim 455:1 and commentaries). One may draw water for several days at one time (Shulchan Aruch 455:1), provided one draws the water immediately before twilight and then stores it in a cool place, although some poskim prefer that the water be drawn freshly each night (Maharil quoted by Ba’er Heiteiv 455:7). The water should not be drawn or stored in a metal vessel since metal conducts heat and warms the water (Magen Avraham 455:9). In addition, the water should not be drawn or stored in a vessel that has been used previously to hold other liquids since some liquid may mix with the water, and this may cause the dough to rise faster than otherwise (Magen Avraham ibid.). Many contemporary poskim discourage using tap water for matzos because of concern that fluoride and other chemicals introduced into the water may cause the dough to rise more quickly (see Mo’adim U’zemanim 3:261). It is important to note that the requirement for mayim shelanu is not only for the matzos eaten at the Seder, but also for all matzos eaten during the entire Pesach.

The words mayim shelanu, which mean water that rested overnight, also translate as “our water.” This once led to a humorous incident recorded by the Gemara: When Rav Masneh told the public in Papunia that they must use mayim shelanu to bake their matzos, the following day a long line of people stood outside his door, requesting that he provide them with water to bake their Pesach matzos! At this point, he clarified to them that mayim shelanu means “water that rested” and not “our water” (Pesachim 42a).

KNEADING THE DOUGH

One may not knead matzoh dough in a warm area or in a place exposed to the sun. Similarly, one must cover the windows so that no sunlight streams through (see Mishnah Berurah 459:2). Furthermore, one must be very careful that the tremendous heat from the oven does not spread to the other parts of the bakery, warming dough before it is placed into the oven (Shulchan Aruch 459:1). Thus, one must construct a matzoh factory so that dough can be transported to the oven quickly without exposing the kneading area to heat from the oven.

Once the flour and the water are mixed, one must strive to produce the matzoh as quickly as possible (Shulchan Aruch Orach Chayim 459:1). If dough is left un-worked for eighteen minutes, it is regarded as chometz. However, if one works on the dough constantly, we are not concerned if more than eighteen minutes elapses before placing it into the oven. On the other hand, once one begins to work the dough it warms up and may begin to leaven if left idle. Therefore the Shulchan Aruch (Orach Chayim 459:2) rules that once one begins working with the dough, it becomes chometz immediately if one leaves it idle. Although there are more lenient opinions as to whether the dough becomes chometz immediately, all agree that one must not allow unnecessary delay without working the dough (see Mishnah Berurah 459:18; Bi’ur Halacha ad loc.; Chazon Ish, Orach Chayim 121:16). Thus, practically speaking, it is far more important to work constantly on the dough to ensure that it does not begin to leaven, than to guarantee that it takes eighteen minutes from start to finish.

One should not assume that all hand matzoh bakeries have the same standard of kashrus. I once visited a hand matzoh bakery and observed dough sitting on the table ready for baking without anyone working on it. I think that people paying the kind of money this bakery charges for its finished product should not receive matzoh that is only kosher bedei’eid (after the fact).

It is of course a much bigger concern if dough from an earlier batch is not cleaned off hands and equipment and mixes into later batches. All equipment must be cleaned thoroughly to make sure this does not happen.

BAKING PROBLEMS

Several problems can occur during the baking of the matzos. If the baker leaves a matzoh in the oven too long it burns, and if he removes it too soon it becomes chometz. Even if he removes a matzoh from the oven before it is fully baked, he may not return it to the oven to finish (Rama 461:3).

Certain other problems can occur while matzoh is baking. Two very common problems are that matzoh becomes kefulah (folded) or nefucha (swollen). A matzoh kefulah is folded inside the oven in such a way that the area between the folds is not exposed directly to the flame or heat of the oven. This area does not bake properly making the matzoh chometz-dik (Rama 461:5). One may not use the folded part of the matzoh nor the area immediately around the fold (Mishnah Berurah 461:28).

A matzoh nefucha is a matzoh that swells up, usually because it was not perforated properly (Rama 461:5). During baking, air trapped inside the matzoh develops a large bubble. If the swollen area is the size of a hazelnut, the matzoh should not be used (see Mishnah Berurah 461:34 for a full discussion).

To avoid discovering these problems on Yom Tov, one should check one’s matzos before Yom Tov to ascertain that none of the matzos are kefulah or nefucha. I can personally attest to finding both among matzos that I intended to use for the Seder.

Of course you may ask, “Why didn’t the bakery mashgiach notice these matzos and remove them?” I too am very bothered by this question, but nevertheless, I and many other people have found that the matzos one purchases often include kefulos and nefuchos.

Now, my dear son, I am glad you have been so patient, because now I can answer your first question: “On this night of Pesach we check our matzoh before eating it. What are we looking for?” We are checking that there are no folded matzos, or bubbles in the matzos the size of a hazelnut.

At this point, I think we can begin to answer the second question:

“On this night of Pesach, some people eat only hand matzoh, others eat only machine-made machine, and still others eat hand matzoh for the bracha and machine matzoh afterwards. What is the basis for these different practices?”

Although most people today accept the use of machine matzoh for Pesach, it is instructional to understand a major dispute that existed among nineteenth century poskim over their use. The two main protagonists in the original 1850’s controversy were Rav Shlomoh Kluger, Rav of Brody, and the Shaul Umeishiv, Rav Yosef Shaul Natanson. Both of these renowned poskim, as well as dozens of other great Rabbonim who became involved in this dispute, were gedolei yisroel. Unfortunately, the machlokes over the use of machine matzos became as heated as the temperature of the matzoh ovens, with each side issuing broadsides and rallying support from other rabbonim.

Rav Shlomoh Kluger opposed the use of machine-made matzoh on Pesach primarily because of the following three concerns:

1. The economic factor: He was concerned that introduction of machine matzoh would seriously affect the livelihood of many Jewish poor who were employed kneading and baking matzos.

2. The chometz factor: There were major concerns about whether the factories’ matzoh met all the above-mentioned halachic requirements. Among the concerns raised were: Is all dough cleaned off the machinery, or does dough stick to the equipment and remain in place for more than eighteen minutes? Does the machinery work the dough constantly, or does it sit after it has begun to be worked?

Apparently this was a big concern in the early matzoh bakeries. In a teshuvah dated Monday, Erev Rosh Chodesh Nisan 5618 (1858), the Divrei Chayim (Shu’t 1:23) refers to machine matzoh as chometz gamur (unquestionably chometz) based on the way it was produced.

3. The lishmah factor: Another issue involved in the manufacture of machine matzos is whether it is considered lishmah? Is the intent of the person operating an electrically-powered machine considered as making matzos lishmah? The same issue affects many other halachic questions, such as the spinning of tzitzis threads by machine, the manufacture of leather for tefillin straps and batim, and making hide into parchment. Some poskim contend that pushing the button to start a machine is not sufficient to make it lishmah since the pushing of the button only produces the very first action, and the rest happens on its own and is not considered made lishmah (Shu’t Divrei Chayim 1:23). There is much discussion and dispute about this issue in the poskim (see for example, Shu’t Chesed L’Avraham 2:OC:3; Shu’t Maharsham 2:16; Shu’t Achiezer 3:69 at end, Sdei Chemed Vol. 7 pgs. 396-398; Chazon Ish, Orach Chayim 6:10 s.v. vinireh d’ein tzorech; Shu’t Har Tzvi, OC#10; Mikra’ei Kodesh, Pesach II pgs. 11-17.). It is primarily for this reason that many people today who use machine-made matzoh on Pesach, still use hand-made matzoh for the Seder.

It is also curious to note that the initial matzoh machines over which these poskim debated were nothing more that hand turned rollers that quickly made a large quantity of thin dough into circles the way a cookie cutter operates. They enabled a fantastic increase in the output of one small factory.

Thirty years after the original dispute, the issue was still heated as evidenced by the following teshuvah of Rav Yehoshua Trunk of Kutno, widely acknowledged in the latter half of the nineteenth century as the posek hador of Poland.

“On the subject of the new idea brought to knead matzos by machine, G-d forbid that one should follow this practice. Over thirty years ago, all the Gedolei Yisroel in our country prohibited it. At their head were the Av Beis Din of Tshechnov; Rav Yitzchok Meir of Gur (The Chiddushei Rim, the first Gerer Rebbe); and Rav Meir, the Rav of Kalish; all of whom signed the declaration prohibiting their use. Not a single individual was lenient about this matter. I therefore say to our brethren, ‘Do not separate yourselves from your brethren since all the gedolim in our country prohibited this machine and virtually all the people accepted this prohibition” (Shu’t Yeshu’os Molko, Orach Chayim #43). Thus, it appears that in central Poland, where these gedolim lived, hand matzos were used almost exclusively.

Similarly, in a teshuvah penned in the year 5635 (1895), the Avnei Nezer (Orach Chayim #372), renowned posek and gadol hador a generation later, echoed this sentiment with emphasis. He writes that although he had never seen a matzoh factory, he prohibited eating this matzoh based on the fact the previous generation’s poskim had prohibited it, quoting Rav Yehoshua of Kutno.

At about the same time that the Avnei Nezer wrote his above-quoted responsum, the Maharsham (Shu’t 2:16) was asked by the Rav of St. Louis, Missouri, Rav Zecharyah Yosef Rosenfeld, about a matzoh machine that took a half hour to prepare the matzoh. Rav Rosenfeld was highly concerned about several problems regarding this machine. The Maharsham ruled that if all the equipment is kept cool and all the other requirements are met, then the matzoh may be used.

In the contemporary world, one can plan and construct a factory for baking matzos so that a minimal amount of dough adheres to equipment, and mashgichim can supervise that whatever dough sticks is swiftly removed. Someone who purchases machine-made matzoh is relying on the supervising agency or rabbi to guarantee that the operation runs properly.

Many rabbonim and communities contend that it is preferable to use machine matzos because one can control the product better – thus in German communities and in “the old yishuv” in Eretz Yisroel, machine matzos were preferred. Rav Shlomoh Zalman Auerbach zt”l, and his brother-in-law Rav Sholom Shvadron zt”l only ate machine matzos on Pesach, as well as Rav Yosef Breuer zt”l, and I have been told of many other gedolim who ate only machine matzos on Pesach.

Among the reasons quoted for favoring machine matzos are:

1) Kneading by hand takes considerably more time before the matzoh is ready for baking. In addition, the dough is likely to warm up considerably by the hands of the kneader, which may lead to it becoming chometz.

2) Hand matzos are of uneven thickness, so that some parts of the matzoh are burnt while other parts may still be incompletely baked, thus there could be a problem of a matzoh being removed from the oven before it is uniformly baked.

3) Machine matzos are thinner and thus less susceptible to leavening.

Although the following may be unappetizing, I have witnessed someone leaning over the table busily kneading his hand matzoh, while beads of perspiration are falling into the matzoh. Aside from the lack of sanitary conditions, there are also kashrus concerns about matzoh produced this way.

On the other hand, many Chassidic circles eat only hand matzos on Pesach, following the long list of Chassidic poskim who strongly opposed machine matzos. In between these two approaches are those who feel that the kashrus of machine matzos is fine or even preferred, but who are concerned about whether matzoh produced by a machine is considered lishmah. To avoid any halachic problem, they use hand matzos at the Seder, but eat machine matzoh the rest of Yom Tov.

At this point, my son, I can answer your Third Question:

“On all other nights of the year we do not rush to prepare our food quickly, on this night of Pesach we eat matzoh that is advertised as ‘18-minute matzoh.’ What do they mean that they are selling 18-minute matzoh?”

Ideally, one should stop every matzoh machine every eighteen minutes to guarantee that the equipment is completely clean. However, factory owners feel that this is a non-profitable way to operate a matzoh factory. Thus, the equipment usually runs constantly with the hope that no dough sticks to it and remains from one batch to the next. To avoid this problem, many people who use machine matzoh insist on using only matzoh produced after the equipment was stopped for a thorough cleaning and examination. This matzoh is usually called “eighteen minute matzoh,” that is, the machine has not been running for eighteen minutes since it was last thoroughly cleaned.

Different hechsherim have different standards – thus, whether some dough remains on the equipment longer than eighteen minutes will depend on how tight the hechsher’s standards are. It is fair to assume that if the factory is not stopped for cleaning every eighteen minutes that some dough remains on the equipment for more than eighteen minutes from one production to the next. However, even if dough was abandoned on the equipment for over 18 minutes, it is batail, nullified, in the final product.

To quote a friend’s recent observation: “I went to a major matzoh bakery a few years ago where they had two runs simultaneously. One was mehadrin, where they stopped the equipment every 16 minutes for cleaning. The other production was constant, and we witnessed piles of dough building up along the sides of the conveyor belt that eventually mixed into the production dough.”

The Fourth Question was:

“A guest once asked me if he could pick up the matzos on Erev Pesach that he was planning on eating at the Seder. Why did he request this, and why have I never heard of this before?”

The halacha is that to fulfill the mitzvah of eating matzoh, the matzoh must be your property. Thus, one cannot fulfill the mitzvah with stolen matzoh. Some have the practice of being certain that they have paid for their matzoh before Pesach to demonstrate that the matzoh is definitely theirs (based on Mishnah Berurah 454:15).

There is an interesting dispute between poskim as to whether a guest at someone else’s Seder fulfills the mitzvah with matzoh that belongs to the host. Sfas Emes (commentary to Sukkah 35a s.v. biGemara asya) contends that one can fulfill the mitzvah of matzoh only with matzoh that one owns to the extent that one would be able to sell it. Therefore, a host must give to each of his guests their matzoh as a present before they eat the mitzvah or they have not fulfilled the mitzvah. However, the universally accepted practice is to follow the opinion of the Mishnah Berurah (454:15) who states that one fulfills the mitzvah with borrowed matzoh.

May we all be zocheh to eat our matzoh this year together with the Korban Pesach in Yerushalayim.




Only the Choicest of Wine – What’s Best for Kiddush and Arba Kosos?

clip_image002Yankel enters my study, with one of his inquisitive looks on his face.

“Rabbi,” he begins, “I have heard that it is best to use red, non-pasteurized wine at the seder. However, my father-in-law likes Chablis, which is a white wine, and my mother-in-law never drinks any wine. The grape juice she likes is from concentrate, and someone told me that one cannot use it for kiddush. What should I do?”

Knowing that Yankel likes very complete explanations, I prepared myself for a lengthy conversation.

“Let us divide your shaylah into its four constituent parts: Color, cooked (mevushal), alcohol, and concentrate. We’ll discuss each part of the shaylah separately and then we’ll see what is preferable to use.”

RED OR WHITE

The Gemara (Bava Basra 97b) quotes the following discussion: Rav Kahana asked Rava “May one use chamar chivaryin, white wine.” Rava answered him by quoting a pasuk in Mishlei (23:31), “Do not pay attention to how red your wine becomes,” (meaning focus your life on permanent, spiritual values and not on the transient and physical). The pasuk implies that the redder the wine, the better its quality.

This Gemara, which is discussing the requirements of wine for kiddush and other mitzvos, implies that one may not use white wine for kiddush, and indeed this is the way the Ramban rules (ad loc.). However, Rashbam concludes that the Gemara is discussing only whether white wine is kosher for nisuch (libation) on the mizbeiach, but it may be used for kiddush. Others reach the same conclusion that our white wine is acceptable for kiddush, but for a different reason. They contend that the Gemara is not discussing quality white wine, but inferior wine that has no color at all (Tosafos). (White wine is always light-colored or yellowish.) According to this opinion, quality white wine is acceptable even for the mizbeiach.

The halacha is that one should preferably use a red wine unless the white wine is better quality (Rama 472:11; Mishnah Berurah 272:10). At the seder, there is an additional reason to use red wine, because it reminds us of Pharaoh’s slaughter of Bnei Yisroel (Mishnah Berurah 472:38). Therefore, if one chooses to use white wine, some suggest mixing red wine into the white wine to give it a little red color (Piskei Tshuvos 472:10). When mixing the wine, it is preferred to pour the red wine into the cup first and then add the white. If one adds red wine to white wine he will color the white wine, which is prohibited on Shabbos and Yom Tov according to some poskim because of the melacha of tzove’a, dyeing or coloring (see Mishnah Berurah 320:56).

MEVUSHAL (Cooked)

Cooking wine harms it, and cooking grape juice affects its ability to ferment naturally. Indeed, some winemakers never pasteurize the juice from which they produce their wines because heating compromises the taste. For these reasons, halacha views wine that is mevushal as inferior, and this has several ramifications. The prohibition not to use wine touched by a gentile, stam yeinam, does not exist if the wine was mevushal before the gentile handled it (Gemara Avodah Zarah 30a). This is because no self-respecting idolater would consecrate cooked wine to his deity (Rambam, Hilchos Maachalei Asuros 11:9; cf. Rosh, Avodah Zarah 2:12 who explains the halacha somewhat differently).

Similarly, one may not pour cooked wine as a libation for a korban. Some poskim contend that mevushal wine is so inferior that one does not recite hagafen on it but shehakol, and that it is invalid for kiddush and arba kosos (see Tosafos Bava Basra 97a s.v. ileima; Tur Orach Chayim, Chapter 272). Although we recite hagafen on mevushal wine and rule that it is kosher for kiddush and arba kosos (Shulchan Aruch 472:12), one should try to use uncooked wine unless the mevushal wine is superior (Rama 272:8; Mishnah Berurah 472:39).

There is one situation where one must use mevushal wine, and that is when gentiles might handle open bottles of wine. This is why most hechsherim insist that all wine served in restaurants and at catered events be mevushal.

Incidentally, almost all bottlers in North America pasteurize their juice before bottling. Commercial pasteurization of juice products is usually at about 180° Fahrenheit.

BUT I HEARD THAT PASTEURIZATION DOES NOT NECESSARILY EQUAL BISHUL?

The early poskim state that heating wine until it begins to evaporate makes it mevushal (Shach, Yoreh Deah 123:7, quoting Rashba and Ran). How hot is this temperature? Rav Moshe Feinstein ruled that 175° Fahrenheit is definitely hot enough to be considered mevushal (Igros Moshe, Yoreh Deah 2:52; see also 3:31), although some poskim contend that wine must be heated to a much higher temperature (see Darchei Teshuvah, Yoreh Deah 123:15; Minchas Shlomo 1:25). Because of this dispute, some hechsherim rule that only wine and grape juice that is heated until boiling is considered mevushal, whereas others consider all commercially available grape juice as mevushal.

However, some poskim contend that the laws of mevushal wine do not apply to contemporary pasteurized juice since the processing is made in a way that the wine does not taste inferior (Shu”t Minchas Shlomoh 1:25). Thus, one could use wine made from pasteurized juice or pasteurized juice without any concern, but one should not use wine that was cooked after fermentation which definitely tastes inferior. According to this opinion, a gentile touching pasteurized wine or grape juice will make it prohibited.

At this point in my monologue, Yankel interjected a question:

“I am not sure if I understood you correctly. If grape juice is usually pasteurized, then according to Rav Moshe’s psak, it is all mevushal. And, since one should preferably not use mevushal wine, one should not use grape juice for kiddush or arba kosos?”

“That is correct,” I responded. “Actually, there is also another reason why it is preferable to use wine for arba kosos.”

WINE VS. GRAPE JUICE

One may use freshly pressed grape juice for kiddush, even though it contains no alcohol (Gemara Bava Basra 97b). However, one should preferably not use grape juice for the seder as I will explain.

In the time of the Gemara, wine was so strong that people diluted it with three parts water (per one part wine) before using it for kiddush and other mitzvos. The Gemara teaches that someone who drank the wine without dilution fulfills the mitzvah of drinking four cups of wine, but does not fulfill the mitzvah of cheirus, freedom (Pesachim 108b). This is because the complete mitzvah of arba kosos requires drinking wine with a pleasurable amount of alcohol. This undiluted wine is too strong and not pleasurable. We derive from this Gemara that wine is better for the seder than grape juice, because the alcoholic content of the wine provides the element of cheirus.

However, someone who cannot drink wine may fulfill the mitzvah of arba kosos with grape juice.

Yankel interjected another question. “My mother-in-law never drinks wine the rest of the year. If I tell her that she should drink wine, she will do it because of the mitzvah. How much wine must she drink?”

“She can use a small cup that holds exactly a revi’is of wine with very low alcohol content or even mix wine and grape juice in the cup so that one can barely notice the alcohol and she will fulfill this mitzvah,” I replied. “The poskim dispute how much is a revi’is, with different opinions ranging from three ounces to five ounces. This the minimum amount of wine for each of the four cups. She is required to drink only a little more than half the cup, although it is better if she drinks the entire cup. She should drink the entire last cup in order to recite the bracha acharonah.”

RECONSTITUTED GRAPE JUICE

Reconstituting grape juice involves evaporating at least 80% of the water that is naturally part of the juice, and then later adding water back. (Juice is concentrated and then reconstituted because it saves tremendous amounts of shipping and storage costs, and because the concentrate has a longer shelf life.) It is important to note that the concentrate is not drinkable before adding water.

Rav Shlomo Zalman Auerbach has a lengthy tshuvah whether reconstituted grape juice may be used for kiddush and whether its correct bracha is shehakol or hagafen. The basis of his discussion follows:

The correct bracha on all beverages except wine is shehakol. Wine merits a unique bracha because it is special in that it “makes man and Hashem happy” (see Mishnah and Gemara Berachos 35a). Men appreciate the intoxicating properties of wine, and in addition, it is the only liquid that the Torah commands us to pour on the mizbeiach every day. (Water, the only other liquid ever poured on the mizbeiach, is only poured on the mizbeiach during Sukkos.)

Grape juice does not have all of these qualities since it does not contain any alcohol. However, since it can potentially become wine, it merits the special bracha of hagafen and may be used for kiddush.

Rav Shlomo Zalman posed the following question: Do we consider natural grape juice as a mixture of the tasty part of the grape and plain water, or do we make no distinctions and consider grape juice as a mixture of everything inside the grape?

Obviously, everyone will conclude that grape juice is what grows inside the grape. Although natural juice is over ninety percent water, the water that grows inside the grape is considered grape juice, not water. However, water added to concentrate does not metamorphose into juice but remains water. Thus, he rules that the finished product is concentrate mixed with water and not pure grape juice.

“I understand that the water in a cup of reconstituted grape juice should not be counted and therefore you should not use it for kiddush,” Yankel interjected. “But I don’t see why there is a shaylah what bracha to make since you are tasting and drinking natural grape juice?”

“Good question,” I responded. “However, Rav Shlomo Zalman points out that the concentrate may not be considered grape juice since during the processing it becomes undrinkable. Therefore, the juice is no longer a prize beverage that warrants its own unique bracha, nor can it potentially become wine. This is why Rav Shlomo Zalman conjectures that even after the juice is reconstituted, its bracha may be shehakol, not hagafen (Minchas Shlomoh #4). Although some poskim disagree with Rav Shlomo Zalman’s conclusions, it is advisable not to use reconstituted juice for kiddush and arba kosos (Shu”t Minchas Yitzchok 8:14; ViZos HaBeracha pg. 116; Piskei Tshuvos, 272:2).

Yankel had one more question. “I was told that one should not drink a new wine during the seder meal that was not on the table at the beginning of the seder. Is this true, and if so, why?”

“Answering this question requires an introduction,” I responded.

HATOV VEHAMEITIV

When there is one wine on the table and the host serves another variety of wine, Chazal instituted a special bracha called “Hatov vehameitiv.” This bracha demonstrates our appreciation of the increased joy brought about by having varieties of wine (Mishnah Berurah 175:2). (Some authorities explain that the reason for this bracha is the exact opposite. To make sure that the additional wine does not cause too much frivolity, we recite a bracha that reminds us of the destruction of Beitar when the Romans crushed the Bar Kochba rebellion [Kad HaKemach]. Chazal instituted the fourth bracha of bensching, which is also called “Hatov vehameitiv,” when the Jews finally received permission to bury the thousands of people killed. Thus, the bracha on the new wine reminds us of the bracha recited because of that tragedy.)

Someone who brings out a new bottle of wine in the middle of the seder should technically recite the bracha of hatov vehameitiv. However, many poskim contend that reciting an extra bracha on a cup of wine makes it appear that one is adding another cup to the four that Chazal instituted (Maharil, as explained by Mishnah Berurah 175:2). Therefore, they ruled that one should not bring out a new variety of wine during the seder meal.

Yankel prepared to leave. “So which wine is choicest?” I asked him.

“One should drink a red wine that has never been cooked. However, if a white or cooked wine is better, one should use the better wine. Someone who does not like wine may mix grape juice with wine as long as they can still taste the alcohol, but they should not use reconstituted grape juice.”

“May we all have a Yom Tov of freedom and celebration!”




Would You Like One or Two?

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

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

KIDDUSH OR HAVDALAH?

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

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

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

  1. May one ask again after receiving a lenient answer?
  2. If one did, and the second authority ruled strictly, whose reply is binding? Is one still bound by the first ruling, which in Rivkah’s case was lenient, or the second, stricter ruling; or perhaps she should now ask a third authority for a final decision?
  3. Was the teacher correct in directing her to ask a second shaylah after she already received a psak?

BACKGROUND INFORMATION

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

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

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

CLEAR MISTAKE

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

PROVABLE ERROR

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

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

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

DISPUTE IN INTERPRETATION

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

HOW LONG?

How long does the ruling remain binding?

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

WHAT IF THE FIRST SCHOLAR WAS LENIENT?

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

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

Reason #1: CONSIDERING IT PROHIBITED

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

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

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

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

Reason #2: RESPECT FOR A TALMID CHACHAM

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

In view of the second reason, Rivkah’s teacher should certainly have asked her own shaylah as to whether to instruct Rivkah to ask her shaylah again.

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

A BRACHA DISPUTE

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

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

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

A DISPUTE BETWEEN THE TALMUDS?

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

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

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

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

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

AN ALTERNATIVE READING

Tosafos (Avodah Zarah 7a s.v. hanishal) suggests reading the last statement of the Yerushalmi rhetorically, as opposed to being a support for Rabbi Simon’s position. The passage now reads:

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

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

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

On the other hand, the Rosh explains the Yerushalmi as I explained originally, that Rabbi Simon objected to Rabbi Ami’s strict ruling as halachically objectionable, after he (Rabbi Simon) had permitted the matter. The Rosh quotes this approach as definitive halacha, meaning that hanishal lechacham is prohibited because of the honor of the first rav. The Rosh appears to contend that both reasons are true, the Bavli emphasizes one reason, and the Yerushalmi the second. This approach maintains that one may, indeed, not seek out a second rav’s opinion, whether the first rav was lenient or strict.

HOW DO WE RULE?

How do we rule in this dispute?

Most halachic authorities rule that the law of hanishal lechacham applies only when the initial ruling was strict, but if it was lenient, one may, indeed, re-ask the shaylah (Shach, Yoreh Deah 242:59; Gra). However, there are some who rule, like the Rosh, that hanishal lechacham applies whether the initial ruling was strict or lenient and therefore forbid re-asking a question, even if one received a lenient ruling (Rama, Yoreh Deah 242:31). According to the first approach, there was nothing wrong with Rivkah re-asking her question.

CONCLUSION

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

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




Can the Rav Make a Mistake?

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

Would You Like One Day or Two?

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

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

KIDDUSH OR HAVDALAH?

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

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

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

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

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

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

BACKGROUND INFORMATION

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

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

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

CLEAR MISTAKE

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

PROVABLE ERROR

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

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

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

DISPUTE IN INTERPRETATION

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

How long does the ruling remain binding?

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

WHAT IF THE FIRST SCHOLAR WAS LENIENT?

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

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

Reason #1: CONSIDERING IT PROHIBITED

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

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

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

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

Reason #2: RESPECT FOR A TALMID CHACHAM

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

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

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

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

A BRACHA DISPUTE

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

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

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

A DISPUTE BETWEEN THE TALMUDS?

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

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

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

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

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

AN ALTERNATIVE READING

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

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

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

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

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

How do we rule in this dispute?

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

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

CONCLUSION

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

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




Can We Offer the Korban Pesach without the Beis HaMikdash?

In the year 5017 (1257), several hundred Baalei Tosafos, led by Rav Yechiel of Paris, headed for Eretz Yisroel. A younger contemporary, Rav Ashtori HaParchi, the author of Kaftor VaFerech, records a fascinating story (Vol. 1, page 101 in the 5757 edition). The Kaftor VaFerech had gone to Yerushalayim to have his sefer reviewed by a talmid chacham named Rav Baruch. Rav Baruch told the Kaftor VaFerech that Rav Yechiel had planned to offer korbanos upon arriving in Yerushalayim. Kaftor VaFerech records that at the time he was preoccupied readying his sefer for publication and did not think about the halachic issues involved, but after the pressures of his publishing deadline passed, he realized that there were practical halachic problems with Rav Yechiel’s plan, as we will discuss shortly.

It seems that Rav Yechiel’s plan to offer korbanos failed, presumably because Yerushalayim was under Crusader rule at the time. His community of Baalei Tosafos settled in Acco, as we know from a report of the Ramban about ten years later. (The Ramban reports that he spent Rosh HaShanah that year with the community of the Baalei Tosafos in Acco and delivered to them a drasha that was recorded for posterity. This is quoted in Kisvei HaRamban, Vol. 1 pg. 211.)

Let us fast forward to the early nineteenth century. Rav Tzvi Hersh Kalisher, the rav of Thorn, Germany, who had studied as a youth in the yeshivos headed by Rabbi Akiva Eiger and the Nesivos HaMishpat (Rav Yaakov of Lisa), published a sefer advocating bringing korbanos in the location where the Beis HaMikdash once stood in Yerushalayim. Rav Kalisher considered it not only permissible to offer korbanos before the Beis HaMikdash is rebuilt, but even obligatory.

As one can well imagine, his sefer created a huge furor. Rav Kalisher corresponded extensively with his own rabbonim, Rabbi Akiva Eiger and the Nesivos, and other well-known luminaries of his era including the Chasam Sofer and the Aruch LaNer. All of them opposed Rav Kalisher’s opinion, although not necessarily for the same reasons.

We can categorize the opposition to Rav Kalisher’s proposal under three headings:

  1. There was almost universal disagreement with his opinion that there is a requirement to offer korbanos before the reconstruction of the Beis HaMikdash.
  2. Some rabbonim, notably Rav Yaakov Ettlinger, the author of the Aruch LaNer, prohibited offering korbanos before the reconstruction of the Beis HaMikdash even if we could resolve all the other halachic issues involved (Shu”t Binyan Tzion #1). However, it should be noted that this question did not bother either Rav Yechiel of Paris or Rav Ashtori HaParchi. Furthermore, Rabbi Akiva Eiger asked his son-in-law, the Chasam Sofer, to request permission from the ruler of Yerushalayim to allow the offering of korbanos. Presumably, Rabbi Akiva Eiger felt that his son-in-law, who had a close connection to the Austro-Hungarian royal family, might be able to use their influence to gain access to the Ottoman Empire who ruled over Yerushalayim at the time. The Chasam Sofer responded with great respect to his father-in-law, but pointed out that the Beis HaMikdash area is unfortunately covered by a mosque that is sacred to its Moslem rulers who will not permit any non-Moslem to enter (Shu’t Chasam Sofer, Yoreh Deah #236). Thus, we see that both Rabbi Akiva Eiger and the Chasam Sofer agreed with Rav Kalisher that we are permitted to bring korbanos before the reconstruction of the Beis HaMikdash.
  3. Numerous halachic hurdles need to be overcome in order to offer korbanos. The discussion of these issues constitutes the lion’s share of the debate.

Rav Kalisher responded to the correspondence, eventually producing a sefer “Derishas Tzion” (published many years after the demise of Rabbi Akiva Eiger, the Chasam Sofer, and the Nesivos) and subsequent essays where he presented and clarified his position. At least three full-length books and numerous essays and responsa were published opposing Rav Kalisher’s thesis.

Before quoting this discussion, we need to clarify several points. First, can we indeed offer korbanos without the existence of the Beis HaMikdash?

MAY ONE BRING KORBANOS WITHOUT THE BEIS HAMIKDASH?

The Mishnah (Eduyos 8:6) quotes Rabbi Yehoshua as saying, “I heard that we can offer korbanos even though there is no Beis HaMikdash.” The Gemara (Zevachim 62a) tells us a story that provides us with some background about this statement. “Three prophets returned with the Jews from Bavel (prior to the building of the second Beis HaMikdash), Chaggai, Zecharyah and Malachi, each bringing with him a halachic tradition that would be necessary for the implementation of korbanos. One of them testified about the maximum size of the mizbeiach, one testified about the location of the mizbeiach, and the third testified that we may offer korbanos even when there is no Beis HaMikdash.” Based on these testimonies, the Jews returning to Eretz Yisroel began offering korbanos before the Beis HaMikdash was rebuilt.

Obviously, Rav Kalisher and Rav Ettlinger interpret this Gemara differently. According to Rav Kalisher and those who agreed with him, the prophet testified that we may offer korbanos at any time, even if there is no Beis HaMikdash. Rav Ettlinger, however, understands the Gemara to mean that one may offer korbanos once the construction of the Beis HaMikdash has begun, even though it is still incomplete. But in the view of Rav Ettlinger, after the destruction of the Beis HaMikdash we may not offer korbanos until Eliyahu announces the building of the third Beis HaMikdash.

An earlier posek, Rav Yaakov Emden, clearly agreed with Rav Kalisher in this dispute. Rav Emden, often referred to as “The Yaavetz,” contends that Jews offered korbanos, at least occasionally, even after the second Beis HaMikdash was destroyed, which would be forbidden according to Rav Ettlinger’s position (She’aylas Yaavetz #89). This is based on an anecdote cited by a mishnah (Pesachim 74a) that Rabban Gamliel instructed his slave, Tevi, to roast the Korban Pesach for him. There were two Tanna’im named Rabban Gamliel, a grandfather and a grandson. The earlier Rabban Gamliel, referred to as “Rabban Gamliel the Elder,” lived at the time of the second Beis HaMikdash, whereas his grandson, “Rabban Gamliel of Yavneh,” was the head of the Yeshivah in Yavneh and was renowned after the destruction of the Beis HaMikdash. Thus, if we can determine which Rabban Gamliel is the protagonist of the mishnah’s story, we may be able to determine whether Jews offered korbanos after the Churban. This would verify Rav Kalisher’s opinion.

Rav Emden assumes that the Rabban Gamliel who owned a slave named Tevi was the later one. He thus concludes that Rabban Gamliel of Yavneh offered korbanos after the destruction of the Beis HaMikdash. Although the Yaavetz brings no proof that the Rabban Gamliel in the above-quoted mishnah is Rabban Gamliel of Yavneh, he may have based his assumption on a different Gemara (Bava Kamma 74b), which records a conversation between Rabbi Yehoshua and Rabban Gamliel concerning Tevi. Since Rabbi Yehoshua was a contemporary of Rabban Gamliel of Yavneh, this would imply that the later Rabban Gamliel indeed offered the Korban Pesach after the destruction of the Beis HaMikdash.

However, this does not solve the numerous halachic issues that need to be resolved in order to allow the offering of korbanos. Although Rav Kalisher responded to these issues, the other gedolim considered his replies insufficient.

KORBANOS ON THE MOUNTAIN

The Brisker Rav, Rav Velvel Soloveichek, raised a different objection to Rav Kalisher’s proposal. Basing himself on several pesukim and halachic sources, he contended that the Beis HaMikdash site only has kedusha when it is a high mountain. Since the Romans razed the present site and it is no longer the prominent height it once was, it is not kosher for offering korbanos until the mountain is raised again to its former glory (quoted in Moadim U’Zemanim Volume 5, pg. 222). Thus, according to this approach, one of Moshiach’s jobs will be to raise the mountain to its former height. Presumably, Rav Kalisher felt that although the mountain should and will be raised, korbanos may be offered before that time.

I will now present some of the other questions involved in ascertaining whether we may bring korbanos before the coming of Eliyahu and Moshiach.

MAY A TAMEI PERSON ENTER THE BEIS HAMIKDASH?

Virtually all opinions agree that it is a Torah prohibition to offer korbanos anywhere in the world except for the designated place in the Beis HaMikdash called the mizbeiach. This creates a halachic problem, because it is a severe Torah prohibition to enter the Beis HaMikdash grounds while tamei, and virtually everyone today has become tamei meis through contact with a corpse. (Someone who was ever in the same room or under the same roof as a corpse also becomes tamei meis.) Although other forms of tumah can be removed by immersion in a mikveh at the appropriate time, tumas meis can be removed only by sprinkling ashes of the parah adumah (the red heifer). Since the ashes of the previously prepared paros adumos are lost, we cannot purify ourselves from tumas meis. Thus, we would be prohibited from bringing most korbanos because every kohen is presumed to be tamei meis.

Gedolim have discussed whether a new parah adumah can be prepared before the arrival of the Moshiach, but I am refraining from citing this discussion because of space considerations.

However, although we have no available tahor cohanim, this would not preclude our offering Korban Pesach or certain other public korbanos (korbanos tzibur).

WHY IS KORBAN PESACH DIFFERENT FROM MOST OTHER KORBANOS?

Most korbanos cannot be brought when either the owner of the korban or the kohen offering the korban is tamei. However, the Torah decrees that korbanos that are offered on a specific day must be brought even when every kohen is tamei. Thus, the Korban Pesach, the daily korban tamid, and the special mussaf korbanos that are brought on Shabbos, Yom Tov and Rosh Chodesh may be offered by a kohen who is tamei meis if necessary.

Other korbanos, however, may not be offered by a tamei kohen even if this results in them not being brought at all. Thus, since there is no tahor kohen available today, we would assume that Rav Yechiel only planned to offer one of the above korbanos (Shu”t Chasam Sofer, Yoreh Deah #236).

LOCATION OF THE MIZBEIACH

As mentioned above, the debate over Rav Kalisher’s proposal concerned other halachic issues that must be resolved before we may offer korbanos. The Kaftor VaFerech raised two of these issues over five hundred years before Rav Kalisher. How could Rav Yechiel offer korbanos when we do not know the exact location of the mizbeiach? As the Rambam writes, “The location of the mizbeiach is extremely exact and it may never be moved from its location…. We have an established tradition that the place where David and Shlomoh built the mizbeiach is the same place where Avraham built the mizbeiach and bound Yitzchak. This is the same place where Noach built a mizbeiach when he left the Ark and where Kayin and Hevel built their mizbeiach. It is the same place where Adam offered the first korban, and it is the place where he (Adam) was created.

“The dimensions and shape of the mizbeiach are very exact. The mizbeiach constructed when the Jews returned from the first exile was built according to the dimensions of the mizbeiach that will be built in the future. One may not add or detract from its size,” (Hilchos Beis HaBechirah 2:1-3).

As noted above, prior to building the second Beis HaMikdash, the prophets Chaggai, Zecharyah and Malachi testified regarding three halachos about the mizbeiach that were necessary to reinstitute the korbanos, one of which was the exact location the mizbeiach and. If so, how can we offer korbanos without knowing the location of the mizbeiach?

Rav Kalisher offered an answer to this question, contending that the prophets’ testimonies were necessary only after the destruction of the first Beis HaMikdash, because the Babylonians razed it to its very foundations. However, Rav Kalisher contended that sufficient remnants exist of the second Beis HaMikdash to determine the mizbeiach’s precise location, thus eliminating the need for prophecy or testimony to establish its location.

Rav Kalisher’s correspondents were dissatisfied with this response, maintaining that the calculations based on the Beis HaMikdash remnants could not be sufficiently precise to determine the mizbeiach’s exact location. Thus, they felt that we must await the arrival of Eliyahu HaNavi to ascertain the mizbeiach’s correct place.

YICHUS OF COHANIM

Do we have “real” cohanim today? Only a kohen who can prove the purity of his lineage may serve in the Beis HaMikdash (see Rambam, Hilchos Issurei Biah 20:2). The Gemara calls such cohanimcohanim meyuchasim.” Cohanim who cannot prove their lineage, but who have such a family tradition, are called “cohanei chazakah,” cohanim because of traditional practice. Although they may observe other mitzvos of cohanim, they may not serve in the Beis HaMikdash.

An early source for the distinction between cohanim who can prove their lineage and those who cannot is the story found in Tanach about the sons of Barzilai the Kohen. When these cohanim came to bring korbanos in the second Beis HaMikdash, Nechemiah rebuffed them because of concerns about their ancestry (Ezra 2:61-63; Nechemiah 7:63-65). The Gemara states that although Nechemiah permitted them to eat terumah and to duchen, he prohibited them from eating korbanos or serving in the Beis HaMikdash (Kesubos 24b). Similarly, today’s cohanim who cannot prove their kehunah status should be unable to serve in the Beis HaMikdash. This would eliminate the possibility of offering korbanos today.

However, Rav Kalisher permits cohanei chazakah to offer korbanos. He contends that only in the generation of Ezra and Nechemiah, when there was a serious problem of intermarriage (see Ezra, Chapter 9), did they restrict service in the Beis HaMikdash to cohanim meyuchasim. However, in subsequent generations, any kohen with a mesorah may serve in the Beis HaMikdash.

Chasam Sofer (Shu”t Yoreh Deah #236) also permits cohanei chazakah to offer korbanos, but for a different reason, contending that although using a kohen meyuchas is preferred, a non-meyuchas kohen may serve in the Beis HaMikdash when no kohen meyuchas is available.

Other poskim dispute this, maintaining that a kohen who is not meyuchas may not serve in the Beis HaMikdash (Kaftor VaFerech).

The question then becomes – If only a kohen who can prove his kehunah may offer korbanos, and there are no surviving cohanim who can prove their kehunah, how will we ever again be able to bring korbanos?

The answer is that Moshiach will use his Ruach HaKodesh to determine who is indeed a kosher kohen that may serve in the Beis HaMikdash (Rambam, Hilchos Melachim 12:3). This approach preempts Rav Kalisher’s proposal completely.

VESTMENTS OF THE KOHEN

Before korbanos are reintroduced, gedolei poskim will have to decide several other matters, including the definitive determination of several materials necessary for the kohen’s vestments.

The Torah describes the garments worn to serve in the Beis HaMikdash as follows: “Aharon and his sons shall put on their belt and their hat, and they (the garments) shall be for them as kehunah as a statute forever,” (Shmos 29:9). The Gemara deduces, “When their clothes are on them, their kehunah is on them. When their clothes are not on them, their kehunah is not on them,” (Zevachim 17b). This means that korbanos are valid only if the kohen offering them wears the appropriate garments.

One of the vestments worn by the cohanim is the avneit, the belt. Although the Torah never describes the avneit worn by the regular kohen, the halachic conclusion is that his avneit includes threads made of techeiles, argaman, and tola’as shani (Gemara Yoma 6a). There is uncertainty about the identification of each of these items. For example, the Rambam and the Ravad dispute the color of argaman (Hilchos Klei HaMikdash 8:13). The identity of techeiles is also unknown. Most poskim conclude that Hashem hid the source of techeiles, a fish known as chilazon, and that it will only be revealed at the time of Moshiach. Thus, even if we rule that our cohanim are kosher for performing the service, they cannot serve without valid garments! (It should be noted that several great poskim, including the Radziner Rebbe, the Maharsham, Rav Herzog and Rav Yechiel Michel Tukochinski, contended that we could research the correct identity of the techeiles. I have written a different article on the subject of identifying the techeiles.)

Rav Kalisher himself contended that the garments of the kohen do not require chilazon as the dye source, only the color of techeiles. In his opinion, chilazon dye is only necessary for tzitzis. (He based this approach on the wording of the Rambam in Hilchos Tzitzis 2:1-2.) Therefore, in Rabbi Kalisher’s opinion, one may dye the threads of the avneit the correct color and perform the service. However, other poskim did not accept this interpretation but require the specific dye source of chilazon blood to dye the vestments (Likutei Halachos, Zevachim Chapter 13 pg. 67a).

Rav Kalisher did not discuss the dispute between the Rambam and the Ravad about the color of the argaman. Apparently, he felt that we could determine the answer and dye the avneit threads appropriately.

ADDITIONAL ISSUES

The poskim raised several other issues concerning Rav Kalisher’s proposal. One problem raised is that Klal Yisroel must purchase all public korbanos from the funds of the machatzis hashekel, which would require arranging the collection of these funds before the publically owned korbanos could be offered. However, this question would not preclude offering Korban Pesach, which is a privately owned korban.

Rav Kalisher’s disputants raised several other questions, more than can be presented here. As we know, the gedolei haposkim rejected Rav Kalisher’s plan to reintroduce korbanos before the rebuilding of the Beis HaMikdash.

However, we have much to learn from Rav Kalisher’s intense desire to offer korbanos. Do we live with a burning desire to see the Beis HaMikdash rebuilt speedily in our days? Even if, chas veshalom, we are still not able to offer Korban Pesach this year, we should still devote Erev Pesach to studying the halachos of that korban. And may we soon merit seeing the cohanim offering all the korbanos in the Beis HaMikdash in purity and sanctity, Amen.




The Mitzvah of “Duchening” – Birchas Kohanim

The Mitzvah of “Duchening” – Birchas Kohanim

In Parshas Naso, the Torah teaches us about the beautiful mitzvah of Birchas Kohanim, wherein the kohanim are commanded to bless the people of Israel. This mitzvah is usually referred to by Ashkenazic Jews as “duchening” and by Sefardic Jews as Birchat Kohanim, or occasionally as Nesiyat Kapayim, which refers to the raising of the hands that the kohanim do in order to recite the blessings.

Why Is This Mitzvah Called Duchening?

Duchen is the Aramaic word for the platform that is in front of the Aron Kodesh. The duchen exists to remind us of the ulam, the antechamber that stood in front of the Kodesh and the Kodshei HaKodoshim, the holy chambers in the Beis HaMikdash. The Kodshei HaKodoshim was entered on only one day of the year, on Yom Kippur, and then only by the Kohen Gadol. The Kodesh was entered a few times daily but only to perform the mitzvos of the Menorah, the Golden Mizbayach (altar), and the Shulchan (the Holy Table that held the Lechem HaPanim). Before entering the Kodesh, one ascended into the Ulam as a sign of respect that one should not immediately enter the Kodesh.

Similarly, in our shuls the Aron Kodesh represents the Kodesh, since we are permitted to open it and to remove the sifrei torah when we need to. But before entering the Kodesh, one ascends the duchen as a sign of respect that one should not immediately each the Aron Kodesh.

 

The duchen also serves other functions, one of which is that the kohanim stand upon it when they recite the blessings of Birchas Kohanim. For this reason, this mitzvah is called duchening (duchenen in Yiddish). In the absence of a duchen, or if there are more kohanim in the shul than there is room for them on the duchen, the kohanimduchen” while standing on the floor in the front of the shul.

Basics of Duchening

There is a basic order to the duchening that occurs during the repetition of the shmoneh esray. When the chazan completes the brochah of modim and the congregation answers “amen” to his brocha, someone (either the chazan of a member of congregation, depending on minhag) then calls out “kohanim” to inform the kohanim that it is time for them to begin the brochah. The chazan then reads each word of the Birchas Kohanim that is recorded in the Torah (Bamidbar 6:24-26) for the kohanim to recite, and the kohanim respond. After each of the three brochahs are recited, the congregation responds “amen” to the brochah. Finally, after the last brochah of the birchas kohanim is completed by the kohanim, the chazan returns to the repetition of the shmoneh esray by reciting the brochah of sim shalom.

The Gemara and poskim teach us that at each of these stages, one must be careful not to recite one’s part before the previous step has been completed. Thus,

the person who calls out “kohanim,” must be careful not to do so before the congregation has finished answering “amen” to the chazan’s brochah; the kohanim should be careful not to recite the words of the brochah before the chazan has completed saying the word “kohanim”; the chazan may not call out “yivarechecha” before the congregation has completed saying “amen” to the brochah of the kohanim, etc. It is important to be mindful of these halachos and allow each stage to be completed before beginning the next. Unfortunately, even well-learned people are sometimes not sufficiently careful to wait until it is time for their part to be recited.

Wearing Shoes During Duchening

A kohen may not duchen while wearing shoes. The Gemara tells us that this was one of the nine takkanos that were instituted by Rabbi Yochanan ben Zakai (Sotah 40a). Although there would seem to be an obvious association with the halacha that the kohanim performed the service in the Beis HaMikdash barefoot, the actual reason for this takkanah is more practical. Rabbi Yochanan ben Zakai was concerned that a kohen’s shoelace would tear while he was on the way to the duchen. While stopping to retie his shoelace, the kohen would miss the duchening. However, people who saw that he missed the duchening would rumor that he is not a valid kohen and that is why he did not duchen! For this reason, chazal instituted that every kohen simply removes his shoes before duchening.

Wbat if the Chazan is a Kohen?

The mishnah states that when there is only one kohen in shul, and he is the chazan, then he may (and should) duchen (Berachos 34a). In this instance, the kohen will remove his shoes and wash his hands prior to beginning repetition of the shmoneh esray. There is a dispute among poskim whether a kohen may duchen when he is the chazan and there are other kohanim who will be duchening. Shulchan Aruch rules that he should not duchen under these circumstances, because of a concern that he will become confused where he is up to in the davening and have difficulty resuming his role as chazan (128:20). Chazal instituted this even when we are certain that the chazan will not become confused, such as today when he has a siddur in front of him (Mishneh Berurah 128:72).

However, the Pri Chodosh rules that he may duchen, and that the concern referred to by Shulchan Aruch was only when the chazan might become confused (such as he does not have a siddur to daven from). In most communities in Eretz Yisrael the custom is to follow the Pri Chodosh’s ruling allowing a kohen who is the chazan to duchen. However, in chutz la’aretz the practice is to follow the Shulchan Aruch and the chazan does not duchen (unless he is the only kohen).

In a situation where the chazan is the only kohen and there is a platform (the “duchen”) in front of the aron kodesh, there is a very interesting halacha that results. Since the duchening should take place on the platform, the kohen actually walks up in the middle of the shmoneh esray he is reciting as chazan in order to walk up to the duchen. After completing the duchening, he returns to his place as chazan and completes the repetition of the shmoneh esray.

The Minyan Disappeared

What do you do if you started davening with a minyan, but in the middle of davening some men left leaving you with less than a minyan? Can you still duchen?

If the minyan started the duchening with ten men or more, and then some men left in the middle of the duchening, they should complete the duchening (Biyur Halachah 128:1 s.v. bipachus).

What Happens if a Kohen Who Does Not Want to Duchen?

A kohen who does not want to duchen for some reason should stand outside the shul from before the time that the word “kohanim” is called out, until the duchening is completed.

The Days that We Duchen

The prevalent custom among sefardim and other edot hamizrach is to duchen every day. There are many Ashkenazic poskim who contend that Ashkenazim should also duchen every day. However, the standard practice in chutz la’aretz is that Ashkenazim duchen only on Yomim Tovim. In most of Eretz Yisroel, the prevalent practice is that Ashkenazim duchen every day. However, in Tzfas and much of the Galil the custom is that the kohanim duchen only on shabbos and Yom Tov.

Why do Ashkenazim duchen in Eretz Yisrael every day, and in Chutz La’Aretz only on Yom Tov?

Several reasons are cited to explain this practice. Rema explains that a person can only confer blessing when he is fully happy. Unfortunately, except for the Yomim Tovim, the kohanim are distracted from true happiness by the difficulties involved in obtaining basic daily needs. However, on Yomim Tovim the kohanim are in a mood of celebration. Thus, they forget their difficulties and can bless people with a complete heart (Rema 128:44; cf. Be’er Heiteiv ad loc.). Thus, only on Yom Tov do the kohanim duchen.

In Eretz Yisroel, the practice is to duchen daily because the Ashkenazim there followed the ruling of the Vilna Gaon. He contended that Ashkenazim everywhere should duchen every day.

Why do the kohanim in Tzfas duchen only on Shabbos and Yom Tov?

The reason for this custom is unclear. I was once told in the name of Rav Kaplan, the Rav of Tzfas for many decades, that since Tzfas had many tzoros over the years, including many serious earthquakes and frequent attacks by bandits, that the people living there did not have true simcha. However, they were able to achieve enough simcha on Shabbos to be able to duchen. This reason does not explain why the other communities in the Galil duchen only on Shabbos.

It should be noted that the Sefardim in Tzfas duchen every day, not only on Shabbos.

Taking off Shoes

Chazal instituted that a kohen should remove his shoes before duchening. Unfortunately, some kohanim leave their shoes lying around in the front of the shul when they go up to duchen. This practice is incorrect. The kohanim are required to place their shoes under the benches or in some other inconspicuous place when they go up to duchen. It shows a lack of kovod to leave the shoes lying about (Mishneh Berurah 128:15)

Washing Hands

In some shuls the Kohanim wash their hands in the front of the shul before they go up to duchen. What is the reason for this practice?

This custom has a source in Rishonim and Poskim and should definitely be encouraged  Tosafos (Sotah 39a s.v. kol) rules that one should wash one’s hands relatively near to the duchen. In Tosafos’ opinion, washing further from the duchen constitutes an interruption, a hefsek, similar to talking between washing netilas yodayim and making hamotzi on eating bread. (His actual ruling is that one should wash one’s hands within twenty-two amos of the duchen, which is a distance of less than forty feet.) Thus, according to Tosafos, we are required to place a sink within that distance of the duchen where the kohanim stand to duchen. Magen Avrohom rules like this Tosafos. Magen Avrohom adds that, according to Tosafos, since the kohanim wash their hands before retzay, the chazan should recite the brochah of retzay speedily. In his opinion, the time that transpires after the kohen washes his hands should be less time than it takes to walk twenty-two amos (128:9). Thus, retzay must be recited in less time than it takes to walk twenty-two amos. Biyur Halachah adds that the kohanim should not converse between the washing of their hands and the duchening because this also constitutes a hefsek.

Duchening and Dreams

A person who had a dream that requires interpretation, but does know whether the dream bodes well, should recite a prayer at the time of the duchening (Berachos 55b; Shulchan Aruch 130:1). It should be noted that the text of the prayer quoted by the Gemara is different from that quoted in the majority of siddurim. The Gemara cites the following text for this prayer:

“Master of the World, I am yours and my dreams are yours. I dreamed a dream that I do not know what it is- whether it is something I have dreamt about myself or it is something that my friends dreamt about me or whether it is something that I dreamt about them. If these dreams are indeed good, strengthen them like the dreams of Yosef. However, if the dreams need to be healed, heal them like Moshe healed the bitters waters of Marah and as Miriam was healed from her tzaraas and as Chizkiyahu was healed from his illness and as the waters on Yericho were healed by Elisha. Just as you changed the curse of Bilaam to a blessing, so to change all my dreams for goodness.” According to the opinion of the Vilna Gaon, this prayer should be recited at the end of all three blessings rather than reciting the “Yehi Ratzon” that is printed in most siddurim (Mishneh Berurah 130:5).

One should complete the prayer at the moment that the congregation answers Amen to the blessings of Birkas Kohanim. This prayer can be recited not only when one is uncertain of the interpretation of the dream but even when one knows that the dream bodes evil (Mishneh Berurah 130:4).

Among Ashkenazim in chutz la-aretz, where the practice is to duchen only on Yom

Tov, the custom is to recite this prayer every time one hears the duchening since there is a likelihood that since the last Yom Tov one had a dream that requires interpretation (Mishneh Berurah 130:1). This prayer is not recited on Shabbos unless one had a bad dream that night (Mishneh Berurah 130:4). In Eretz Yisrael, where the custom is to duchen daily, the practice among Ashkenazim is to recite the prayer for dreams at the last of the three berachos of the duchening at musaf on Yom Tov. The custom is that the kohanim chant the last word of the brochah on these days of on these days of Yom Tov to allow people sufficient time to recite these prayers.

In all places, the custom among Sefardim is not to recite the prayer unless the person had such a dream.

As a kohen myself, I find duchening to be the most beautiful of mitzvohs. We are indeed so fortunate to have a commandment to bless the our fellow Jews, the children of Our Creator. The nusach of the bracha is also worth noting. “levarach es amo yisrael b’ahava”- to bless His nation Israel with love. The blessings of a kohen must flow from a heart full of love for the Jews that he is privileged to bless.