Is a Position Inherited?

Question #1: The inherited shofar

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

Question #2: I’d like a change!

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

Question #3: Long live the Rabbi!

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

Answer:

In parshas Vayechi, Yaakov Avinu provides a glimpse of the different qualities that will be inherited among the tribes of Bnei Yisroel. Does the scion of someone who achieved a leadership, communal or rabbinic position among the Jewish people have a halachic claim to his father’s position?

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

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

Retiring Chazzan

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

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

The ruling

The Rashba sided with the chazzan for three different reasons:

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

Second reason of Rashba

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

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

The son’s right

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

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

Choosing someone else

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

How do we rule?

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

Inherited his voice?

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

As we saw above, this halachah is true for any position in klal Yisroel: The son has the right to the position as long as he meets the basic requirements for the position.

Can the son sell the position?

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

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

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

Source for the Rema

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

Other reasons

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

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

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

Exceptions

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

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

I’d like a change!

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

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

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

A major exception?

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

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

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

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

Conclusion

When the Mishnah Berurah (53:83) discusses this matter, he cites the opinions we have mentioned without taking an obvious position on the matter. Thus, I leave the individual congregation to have its rav or posek decide whether a son has the right to replace his father, where there is no established minhag and the community would like to appoint someone else.

 

It’s About Time

The Gemara that discusses this topic includes a reference from this week’s parsha.

It’s About Time

sunsetQuiz Question #1:

Mrs. Yunger gave birth to two healthy twin boys, each of whom had his bris on the first day that halacha mandates, yet the younger Yunger had his bris several days earlier than his older brother. How can this happen?

Question #2:

Moshe Litvak asks me: “I have often wondered why my chassidishe brother-in-law davens mincha after sunset, when the Mishnah Berurah rules that one should not daven this late!”

Question #3:

“My sister and I live in the same yishuv (community), and the nearest hospital is Laniado, in Netanya. She went into labor on Shabbos and left for the hospital. Immediately after Shabbos, I phoned the hospital to find out how she was and whether she had a boy or a girl, and was told by the gentile receptionist that she could not put the call through to my sister until after the time ‘Rabbeinu Tam’ arrives, which would not be for another half an hour. Why was the gentile receptionist so frum?”

Why Did the Younger Yunger have an Earlier Bris?

Although a bris that transpires on the eighth day of a child’s life supersedes Shabbos, when a baby is born during bein hashemashos, a halachic “twilight zone” in which it is uncertain whether it is part of the previous day or the next one, his bris cannot be conducted on Shabbos. The older Yunger was born during bein hashemashos on Friday evening. Thus, his bris could not be performed on either Friday or Shabbos, and his bris was postponed to Sunday. Moreover, if one or two days of Yom Tov immediately followed Shabbos, then his bris would be delayed until after Yom Tov. However, his younger brother was born at a time that was certainly Shabbos, and therefore, his bris took place on Shabbos. Thus, younger Yunger had his bris before older Yunger.

When is Twilight?

When is bein hashemashos?

We all are aware that the Jewish date begins at night. But at what exact moment does one day end and another begin? Do we know the precise instant when one day marches off into history, and its successor arrives with its banner unfurled?

A verse in the book of Nechemiah might help resolve this question. There it describes the unenviable circumstances in which the Jews were rebuilding the Second Beis Hamikdash, while protecting themselves from the enemies who were determined to thwart its erection: And we were continuing the construction work from daybreak until the stars come out [tzeis hakochavim] while half our men were holding spears… and at night we were on guard, while in the day we could proceed with the work (Nechemiah 4:15-16). Nechemiah implies that “night” begins when the stars emerge, and the time of dusk until they become visible is still considered the previous day (see Berachos 2b; Megillah 20b).

However, we still require more definition. Which stars? Can we pinpoint the moment that the stars come out, since the stars of the firmament do not all become visible at the same time?

Additional confusion is caused by a different verse that implies that the day ends when the sun sets, as the Torah (Vayikra 22:7) proclaims: And when the sun sets, he shall become pure, stating that the final stage of purification from some types of tumah is the sunset after immersion in a mikveh. However, at sunset no stars are yet visible. Thus, this verse implies that the changing of the day transpires at sunset, not when the stars appear (see Berachos 2b).

What a Phenomenal Dusk!

Is there any discussion in the Gemara that can “shed light” on our question? Indeed, there are several passages, and much literature is devoted to understanding them. One passage (Shabbos 34b) describes certain celestial phenomena that define when bein hashemashos begins and when it ends. The commentaries debate exactly what occurrences are being described, and, unfortunately, we derive little usable information from this passage.

When Three Stars Appear

Another passage indicates that the end of the day is determined by the appearance of stars. When one star appears, it is still day. When two appear, it is bein hashemashos, and when three appear, it is night. Not large stars that appear even in the day, and not small stars that first appear at night, but middle-sized stars (Shabbos 35b).

Now the job appears easy. Let us look at the darkening firmament this coming evening and count stars!

I am sure that there have been times when you have tried. Ever spent Shabbos on a camping trip and attempted to determine the end of Shabbos by stargazing? How did you decide which stars are considered “small,” “large” and “middle-sized”? And this is assuming that one does not need to deal with light pollution!

Perhaps, locating a Gemara discussion that indicates more objective criteria, such as units of time, may be more helpful in our search to determine the end of day. Does such a discussion exist in the Gemara?

Yes, it does — and not only one passage, but two. However, the two passages appear contradictory!

Conflicting Gemara passages

The Gemara in Pesachim (94a) states that the time between shekiyah, a word usually translated as sunset, and tzeis hakochavim equals four mil, which we will assume is 72 minutes. (This concurs with the more obvious way of explaining the opinion of the Terumas Hadeshen [#123] and the Shulchan Aruch [Orach Chayim 459:2; Yoreh Deah 69:6 with Shach] that a mil used as a unit of time equals 18 minutes.) However, a different passage of Gemara, in Mesechta Shabbos (34b), quotes a dispute in which Rabbah states that nightfall occurs three-quarters of a mil, or 13½ minutes, after shekiyah, and Rabbi Yosef rules that it transpires a bit earlier, two-thirds of a mil, or 12 minutes, after shekiyah. Obviously, we need to explain why one Gemara states that nightfall occurs 72 minutes after shekiyah, and another states that it occurs only 12 or 13½ minutes after shekiyah!

Rabbeinu Tam’s explanation

Among the many resolutions to this conundrum, the two most commonly quoted are those of Rabbeinu Tam and the Gr”a. Rabbeinu Tam contends that these two passages of Gemara are using the word “shekiyah” to refer to two different phenomena which occur about an hour apart. The Gemara in Pesachim uses the term shekiyah to mean sunset — when the sun vanishes beyond the western horizon. Rabbeinu Tam refers to sunset as techilas shekiyah, literally the beginning of shekiyah. However, when the Gemara in Shabbos refers to “shekiyah,” it does not mean sunset, but a point in time about an hour later when virtually all light of the sun’s rays is dissipated from earth. Rabbeinu Tam refers to this later time as sof shekiyah, literally the end of shekiyah, and, in his opinion, until sof shekiyah occurs it is still halachically day, notwithstanding the setting of the sun and the appearance of hundreds of stars in the firmament. All these stars are considered “large stars” whose appearance does not demonstrate that the day has ended. Only at sof shekiyah does it become bein hashemashos, the time when we are uncertain whether it is day or night. At sof shekiyah, bein hashemashos has begun, meaning that now two, but not three, “middle-sized” stars are visible, and we await the appearance of the third “middle-sized” star to know that it is definitely night. (However, cf. Minchas Kohen for a variant understanding of Rabbeinu Tam’s position.)

Since, according to Rabbeinu Tam, it is definitely still day until about an hour after sunset, many authorities contend that there is no problem with davening mincha considerably after sunset. (However, note that Rabbeinu Yonah understands the opinion of Rabbeinu Tam differently from what I just explained.) Thus, there are communities who base themselves on this approach and daven mincha well after sunset.

Rabbeinu Tam and a friday night birth

According to Rabbeinu Tam, a baby born 58 minutes after sunset on Friday evening, and certainly any time earlier, was born halachically on Friday, and not on Shabbos. In Rabbeinu Tam’s opinion, this baby’s bris takes place the following Friday. A baby making his appearance a bit later is considered to be born during bein hashemashos and cannot have his bris on Shabbos, because maybe bein hashemashos is still Friday — which makes Shabbos his ninth day of life. This bris will be postponed to Sunday. However, if he is born later on Friday evening, at a time when it is definitely Shabbos, then the bris is performed on Shabbos.

It goes without saying that, according to Rabbeinu Tam, one may not perform any melacha on Saturday night until a considerable time has passed after sunset. There are various opinions as to exactly when Shabbos is definitely over according to Rabbeinu Tam, but most people assume that Shabbos is over by 72 minutes after sunset (Biur Halacha).

By the way, at this point we can answer our third question above: why the telephone lines at Laniado hospital are not open to non-pikuach nefesh related calls until more than a half hour later than the time Shabbos ends according to most calendars. The founder of the hospital, the Klausenberger Rebbe, insisted that Shabbos be observed at the hospital until it is over according to Rabbeinu Tam.

The opinion of the Gr”a

Since we know that many highly observant Jews do not wait this long for Shabbos to end, there must be another way of interpreting the two passages of Gemara that reaches a different halachic conclusion. Indeed, one such approach is presented by the Gr”a, who who has a completely different way of explaining why the Gemara in Pesachim states that tzeis hakochavim does not occur until 72 minutes after sunset, whereas the Gemara in Shabbos has tzeis hakochavim occurring much earlier. The Gr”a contends that both passages use shekiyah to mean sunset, and this is the same sunset to which we customarily refer — however, they are not referring to the same tzeis hakochavim. The Gemara passage in Pesachim that refers to tzeis hakochavim being 72 minutes after sunset means that all visible stars of the firmament can now be seen, a time that the Gr”a calls tzeis kol hakochavim, literally, when all the stars have appeared, whereas the Gemara in Shabbos refers to the time at which three “middle-sized” stars are visible. The Gr”a concludes that sunset begins the time of bein hashemashos, the time when we are uncertain whether it is day or night, with tzeis hakochavim occurring when three “middle-sized” stars are visible. The Gemara in Pesachim that requires 72 minutes until the stars appear is not discussing when the day ends — the day ended much earlier — but is concerned about when all remnants of sunlight vanish.

According to the Gr”a’s opinion, once sunset arrives on Friday, it may already be Shabbos. We consider this time to be already bein hashemashos, and we therefore refrain from performing any melacha from this time. In the Gr”a’s opinion, a baby born after sunset Friday will have his bris performed on Sunday a week later, unless he is born after three “middle-sized” stars appear, in which case his bris will be performed on Shabbos. (In practice, since we are uncertain exactly which stars are called “middle-sized,” we wait a bit longer, see Biur Halacha to 393.) According to Rabbeinu Tam, this same baby would have his bris performed on Friday, unless he is born at least 58 1/2 minutes after sunset. If he is born between 58½ minutes and 72 minutes after sunset Friday evening, according to the Gr”a, his bris will be on Shabbos, whereas according to Rabbeinu Tam – his bris will be on Sunday. Rabbeinu Tam agrees that a baby born later on Friday evening will have his bris performed on Shabbos.

The Gr”a rules that one should not daven mincha after sunset, since this is already a time at which the previous day may have already passed. Thus, it is already time to daven maariv.

How do we rule?

Although in the past there were Torah communities that did not follow the Gr”a at all, even regarding the onset of Shabbos, today, it is universally accepted to consider it Shabbos from sunset on Friday. Many communities follow the Gr”a’s opinion fully, and do not wait until 72 minutes after sunset on Saturday to end Shabbos. In a responsum on the subject, Rav Moshe Feinstein took great umbrage at those in Eretz Yisroel who wait only 25 minutes after sunset to end Shabbos, contending that since a large number of Rishonim followed Rabbeinu Tam’s approach, one should act stringently and not end Shabbos until at least fifty minutes after sunset, which he felt fulfills “Rabbeinu Tam time” according to the basic halachic requirement (Igros Moshe, Yoreh Deah 4:17:26; and Orach Chayim 4:62).

Under the Big Top

With apologies for the delay in sending this out…

Since parshas Eikev teaches that “all Hashem wants from us is to fear Him,” it is an opportune time to discuss:

Under the Big Top

skullcap“Why do some people wear big yarmulkes that cover their entire head?”

“How large must my yarmulke be?”

“Is there a halachic difference between going bareheaded indoors versus outdoors?”

“Why don’t we clip a waterproof yarmulke to our heads while we swim?”

“May one swear an oath, using G-d’s Name, while bareheaded?”

Answer:

All of the above questions concern the laws regarding covering one’s head and walking bareheaded, a topic mentioned several times in the Gemara. For example:

“Rabbi Huna, the son of Rabbi Yehoshua, did not walk four amos (about seven feet) with an uncovered head, saying ‘The Shechinah is above my head’” (Kiddushin 31a). Similarly, the Gemara says elsewhere that Rabbi Huna the son of Rabbi Yehoshua said about himself “I will be rewarded, because I never walked four amos with an uncovered head” (Shabbos 118b).

“Ravina was sitting in front of Rav Yirmiyah of Difti, when a man passed by and did not cover his head. Ravina said to Rav Yirmiyah of Difti, ‘How arrogant is this man (for walking bareheaded in the presence of Torah scholars)?’ Rav Yirmiyah responded, ‘Perhaps he comes from the town of Mechasya, where the people are so familiar with talmidei chachamim (that in their presence the townspeople do not cover their heads)” (Kiddushin 33a).

“An astrologer told the mother of Rav Nachman bar Yitzchak: ‘Your son will be a thief.’ To avoid this from happening, she made sure that his head was always covered, and cautioned him: ‘Cover your head, so that you will always be in fear of Heaven and always pray for Divine assistance in serving Hashem.’ Rav Nachman bar Yitzchak was unaware of the reason behind her instructions, but always followed them meticulously, from his youth and on into adulthood, when he became a great Torah scholar. One day, he was studying Torah under a date palm that was not his, when his head covering fell off. Raising his eyes, he saw the dates, and his yetzer hora overwhelmed him. It was so powerful that he snapped off dates with his teeth, thus fulfilling the prophecy of the astrologer” (Shabbos 156b).

Mesechta Sofrim, which is a collection of beraisos, or halachic teachings of the tanna’im not included in the Mishnah, quotes a dispute whether someone whose head is uncovered may lead the services by being poreis al shema, which means to recite kaddish and borchu that follow the pesukei dezimra. (There are various opinions as to how much of the prayer is included in poreis al shema, a topic beyond the scope of this article.) The first opinion, mentioned anonymously, permits someone bareheaded to lead the services, whereas the second opinion prohibits doing so, because one may not say Hashem’s name with an uncovered head (Sofrim 14:15). In a dispute of this nature, the general rule is that we follow the first opinion, although, in this particular dispute, we find authorities who rule according to the second opinion.

The Rambam about being bareheaded

The Rambam prohibits praying the shemoneh esrei bareheaded (Hilchos Tefillah 5:5), and he also states that it is appropriate for a talmid chacham to cover his head at all times (Hilchos Dei’os 5:6). Thus, in the dispute of Mesechta Sofrim quoted above, he follows the first opinion.

Interpreting the Talmudic sources

Based on the above sources, most, but not all, halachic authorities contend that, in Talmudic times, covering one’s head was performed on special occasions, such as when praying, reciting blessings, and in the presence of a Torah scholar, but was not always otherwise observed (Tur, Orach Chayim 8, as explained by Darkei Moshe; Shu”t Maharshal #72; Gra on Orach Chayim 8:2). These rulings imply that someone other than a talmid chacham is not required to cover his head, except when davening. As we will soon see, most authorities conclude that, today, one is required to cover one’s head, because of reasons that did not apply in the time of the Gemara.

A minority opinion

We must note that one prominent late authority, Rav Shlomo Kluger, understands the Talmudic sources in a different way. He contends that, even in earlier times, it was forbidden to leave one’s head completely uncovered. In his opinion, the passages that imply that a person may go bareheaded are, in fact, allowing him to have his head partially covered. (Shu”t Ha’elef Lecha Shlomo #3). I will soon explain the practical ramifications of this dispute.

Protecting from sin

According to all opinions, covering one’s head helps achieve yiras shamayim, being in constant recognition and awe of G-d’s presence, as borne out by the anecdote of Rav Nachman bar Yitzchak that I quoted above. Let us understand this story in its context, which concerns the topic of ein mazal leYisroel.

Ein mazal leYisroel

Hashem set up the world in such a way that the events that transpire in one’s life, and even one’s personality and tendencies, are influenced by one’s mazal. However, because of the principle of ein mazal leYisroel, one can override this preordained fortune through prayer. Recognizing that Hashem is The Source of all, and praying to Him for help and assistance, can change one’s situation.

We now understand what Rav Nachman bar Yitzchak’s mother did. The astrologer understood the mazalos and knew that her son was born under a mazal that would influence him to steal. Rav Nachman bar Yitzchak’s mother knew that although mazalos have a strong influence on a person, their power is not absolute. Therefore, she understood, correctly, that the astrologer’s diagnosis presented her with a reason to treat her son in a special way. Since prayer and being careful about mitzvah observance can offset the influence of mazalos, this is what she taught him, knowing that covering one’s head provides a strong influence. She was proven correct, because her son developed into a great Torah scholar and yarei shamayim, despite the influences of his personal mazalos. Still, only when he remained on guard and kept his head covered was he able to combat his tremendous drive to steal. The moment his head became uncovered, the temptation to steal overwhelmed him. He now knew that, in spite of his tremendous accomplishments in ruchniyus, he could not relax his guard, even for a second. We also understand why the custom developed that people cover their heads at all times, even though the Gemara did not require it.

Responsum of the Maharshal

With this background, we can understand the following responsum, penned by the sixteenth-century halachic luminary, Rav Shlomo Luria, known as the Maharshal. “I am unaware of a prohibition to recite a brocha without a cover on one’s head, although the Terumas Hadeshen was certain that it is prohibited to mention G-d’s Name without one’s head being covered, I am unaware of the source of this ruling. He writes that it is a dispute in Mesechta Sofrim, and, furthermore, Rabbeinu Yerucham writes that it is prohibited to recite a brocha bareheaded. Even though I do not dispute the earlier authorities unless I find a major scholar on my side of the dispute, I am inclined to be lenient in ruling that one may recite a brocha and even recite keri’as shema bareheaded. I can prove this from a Midrash Rabbah that states that a human king requires people to rise and uncover their heads in respect, prior to reading a declaration that he has issued, which they then read with great awe and trepidation. Hakadosh Baruch Hu told the Jews that when you read My declaration, the shema, you are not required to stand while doing so, nor are you required to expose your heads.” The Maharshal notes that this midrash implies that uncovering one’s head while reciting shema is not required, and it is certainly not prohibited.

The Maharshal continues: “Despite my own proofs to the contrary, what can I do that people consider being bareheaded to be prohibited? However, I am astonished at the custom of treating uncovering one’s head as a prohibited activity, even when not praying, and I have no idea where they got this from, since the only source that we find about having one’s head uncovered is regarding a woman, and it is only a midas chasidus (exemplary conduct) to be careful not to walk four amos bareheaded — but this midas chasidus applies only to walking four amos and not one who walks for a shorter distance, as is implied by the statement of Rav Huna the son of Rav Yehoshua… . Furthermore, I found written that being bareheaded is a concern only when one is outdoors… . Avoiding reciting G-d’s Name with an exposed head is a midas chasidus, just as is avoiding walking four amos bareheaded. However, the Rif wrote that we should protest someone’s entering a shul bareheaded, and the Tur wrote that one should not pray bareheaded, but did not prohibit reciting shema bareheaded.”

The Maharshal then concludes: “I am powerless to change this approach. Since people are in the practice of not being bareheaded anywhere, I may not be lenient in their presence. I heard of a talmid chacham who used to study Torah bareheaded, saying that the covering bothered him. Nevertheless, although, technically, there is nothing wrong with being bareheaded, provided one is not saying G-d’s Name, even from a perspective of exemplary conduct (midas chasidus), nevertheless, a talmid chacham should be careful not to do this, since people may think that he is not serious about his observance of Torah and mitzvos. Therefore, a talmid chacham should not study Torah bareheaded, even in the privacy of his own home, lest someone see him and, as a result, treat him without the proper respect he is due.”

In his conclusion, the Maharshal rules that a talmid chacham is required to cover his head. He also contends that one may recite a brocha by placing his hand over his head, despite the rule that one part of the body cannot cover another part (see Brachos 24b and Shulchan Aruch, Orach Chayim 74:1). The Maharshal reasons that since, in his opinion, halacha does not require one to cover one’s head when saying Hashem’s Name, and the reason one needs to cover his head is only so that people not consider him to be someone who does not take the Torah seriously, it is sufficient to place one’s hand over one’s head to fulfill this concern.

Other authorities

Although the Gra (on Orach Chayim 8:2) echoes the Maharshal’s approach to the subject at hand, other early poskim follow a more stringent approach. The Terumas Hadeshen (1:10), the Shulchan Aruch (Orach Chayim 91:3, 4) and the Rema (Orach Chayim 74:2) rule that it is prohibited to say Hashem’s Name bareheaded, following the second opinion of Mesechta Sofrim. As a result, they conclude that a person may not recite a brocha with only his hand on top of his head, although the Shulchan Aruch permits reciting a brocha with someone else’s hand covering your head. As I will explain shortly, the Taz agrees that one may not recite a brocha with only one’s hand on top of his head, but he permits standing or walking four amos with one’s hand on top of his head.

The Bach (comments to Tur Orach Chayim, Chapter 2) takes issue with a different lenient ruling of the Maharshal, contending that it is forbidden to walk even less than four amos bareheaded.

The Taz’s approach

Although the Maharshal concluded that the only reason one should not go bareheaded is because people will look at him askance, the Taz (Orach Chayim 8:3) concludes that, in our day, it is halachically prohibited to be bareheaded. In his opinion, since the gentiles of the western world are meticulous to uncover their heads upon entering a building, being bareheaded violates the law of bechukoseihem lo seileichu (Vayikra 18:3), one may not follow the practices of the gentiles. This lo saaseh of the Torah is often called chukos akum. There are many opinions among the rishonim and the poskim as to the exact definition of what is included under chukos akum. The Taz explains that since the gentiles consider it unacceptable to have one’s head covered indoors, uncovering one’s head violates this prohibition.

Thus, according to the Taz, there are two different reasons to have one’s head covered: to encourage one’s yiras shamayim, and because of chukos akum. Placing one’s hand over one’s head is sufficient to avoid chukos akum, since this shows that one does not want to sit bareheaded, but it is not sufficient to allow one to recite a brocha.

Bareheaded indoors

Based on the Maharshal, the Be’er Heiteiv (Orach Chayim 2:6) rules that, under extenuating circumstances, one is permitted to have one’s head exposed while indoors.  However, the Bechor Shor (Shabbos 118b) opposes this ruling, contending that having one’s head exposed indoors is a more serious violation of chukos akum than outdoors, since the practice of the gentiles is deliberately to be bareheaded indoors.

At this point, we can refer to one of our original questions: “Is there a halachic difference between going bareheaded indoors versus outdoors?”

According to the Maharshal and the Be’er Heiteiv, although, under normal circumstances, one should cover one’s head in both venues, walking bareheaded outdoors is of greater concern. Under extenuating circumstances, the Be’er Heiteiv permitted walking indoors bareheaded. However, the Bechor Shor considers walking bareheaded indoors to be a bigger violation of halacha, since it violates chukos akum, whereas walking outdoors with one’s head exposed violates only the minhag Yisroel.

Livelihood

Although Rav Moshe Feinstein rules according to the Taz that one is required to cover one’s head whether indoors or outdoors, he concludes that when one’s employment or livelihood may be jeopardized, it is permitted to work bareheaded. This lenient ruling applies only while someone is at his place of work, but once he leaves his place of employment, he must cover his head, since his livelihood is no longer jeopardized (Shu”t Igros Moshe, Orach Chayim 1:1 and 4:2; Choshen Mishpat 1:93). (Those interested in seeing two very different approaches to this question are encouraged to compare Shu”t Nachalas Binyamin #30 and Shu”t Melamed Leho’il, Yoreh Deah, #56.)

Different gentiles

Some authorities note that the Taz’s reason should apply only in western countries and other places where the gentiles have a specific practice to uncover their heads. However, in places where the gentiles have no such concerns, such as in Moslem countries, there is no prohibition of chukos akum in leaving one’s head uncovered (Shu”t Igros Moshe, Orach Chayim 1:1). It may still be prohibited because of Jewish custom.

Swearing bareheaded

At this point, let us examine one of our opening questions: “May one swear an oath, using G-d’s Name, while bareheaded?” Is it not forbidden to recite Hashem’s Name with one’s head uncovered?

This question returns us to the dispute in Mesechta Sofrim that I quoted earlier, whether one may recite Hashem’s Name bareheaded. According to the Rambam, the Gra and the other halachic authorities who rule like the first tanna, there is nothing technically wrong with reciting Hashem’s Name bareheaded. Even among those authorities, such as the Terumas Hadeshen (1:10), who rule like the second tanna who prohibits enunciating Hashem’s Name bareheaded, many, including the Terumas Hadeshen himself (2:203), rule that one may recite an oath bareheaded. For example, the Beis Lechem Yehudah (Yoreh Deah 157:5) rules that, when no other option exists, it is permitted to swear an oath while bareheaded.

Under the big top

At this point, we can examine two of our opening questions:

“Why do some people where big yarmulkes that cover their entire head?”

“How large must my yarmulke be?”

In the above-quoted responsum of Rav Shlomo Kluger, he ruled that one is required to cover one’s head completely when walking outdoors four amos or more. When walking less than this distance, or when walking indoors, one must cover one’s head, but it does not need to be covered completely. This explains why some people wear big yarmulkes that cover their entire head.

However, this ruling is not universally accepted. Rav Moshe Feinstein was asked how can people walk in the street wearing only a yarmulke, when Rav Shlomoh Kluger required covering one’s entire head? Rav Moshe demonstrates that all the major authorities disagreed with Rav Kluger’s ruling. Rav Moshe concludes that even a small yarmulke meets the halachic requirements, but that individuals who would like to follow the more stringent opinion of Rav Kluger as regards walking outside  should cover their heads in a way that covers more than half the top of the head.

Swimming bareheaded

Previously, I quoted the following question: “Why don’t we clip a waterproof yarmulke to our heads while we swim?”

One of the authorities mentioned above, the Bechor Shor, rules that there is no requirement to cover your head while swimming or while walking from the changing room to the mikveh, not even as a midas chasidus. He demonstrates from passages of the Gemara that midas chasidus does not include covering your head in the mikveh, and also notes that swimming bareheaded does not violate chukas akum, since it is obvious that the uncovered head is not because one is trying to mimic gentile practice.

Conclusion

We see from the halachic sources that covering one’s head was a highly respected practice that assisted a person’s growth in yiras shamayim. With time, covering one’s head became part of the “uniform” of the Jewish man. In addition, there are other halachic reasons to keep one’s head covered, such as chukos akum. When donning a yarmulke or other head covering, one should avail himself of the opportunity to think about our Father in Heaven.

 

Tzaar Baalei Chayim

In Chutz La’aretz, this week parshas Balak is read, and in Eretz Yisroel, this is one of the rare years when we read parshas Pinchas before the Three Weeks. Since both parshiyos include allusions to tzaar baalei chayim, I present:

Tzaar Baalei Chayim

Question #1: Scientific experimenting

“Are there halachic laws governing when and how one may conduct scientific or medical experiments on animals?”

Question #2: Licensed to kill!

“Are there any halachic concerns that I should know about becoming an exterminator?”

Question #3: Oversized rider

pony“On visiting day in camp, we went pony riding, accompanied by some parents. One of our campers’ fathers is very obese, and the ponies were small, meant to carry the weight of children or, at most, average-sized adults. Fortunately for the pony involved, Mr. Big decided to forgo the ride. But does halachah address whether he would have been permitted to ride one of the ponies?”

Answer:

The topic of tzaar baalei chayim, the responsibility to alleviate, avoid and prevent the suffering of animals, is discussed fairly extensively by the halachic authorities. One early source, the Sefer Chassidim, discusses this mitzvah in regard to this week’s parshah — within the context of Bilaam striking his donkey.

All authorities agree that it is forbidden to cause animals to suffer unnecessarily, such as to strike an animal out of anger or frustration (Sefer Chassidim #666). If an animal that is normally well-behaved and responsive to its vocation refuses to work one day, one should not beat it to get it to cooperate – rather, one should consider the possibility that it might be ill (Sefer Chassidim #668). Animals do get sick and, as we see from the story of Bilaam, they may have difficulty expressing themselves. Thus, the Sefer Chassidim teaches that Bilaam was punished for striking his donkey (Sefer Chassidim #668). This esteemed early authority thereby implies that a gentile is required to observe the laws of tzaar baalei chayim, an aspect of the mitzvah that we will leave for a future article.

One should not work his pregnant animal too hard when he knows that it is ready to give birth (Sefer Chassidim #667). It goes without saying that it is prohibited to raise livestock in an inhumane way, such as by feeding them an unusual diet or depriving them of proper ventilation or exercise. Also, tzaar baalei chayim includes alleviating the suffering of an animal (Orach Meisharim Chapter 15:1).

Using animals

One may use an animal to service people, even though doing so involves inflicting pain on the animal (Nimukei Yosef, Bava Metzia 32b; Terumas Hadeshen 2:105; Rema, Even Ha’ezer 5:14; these authorities base their rulings on Talmudic sources, see Chagigah 14b; Shabbos 110b and 154b; Avodah Zarah 13b). The rationale provided is that animals and the rest of creation were created in order to service mankind (Terumas Hadeshen, based on Kiddushin 82a).

How much suffering?

A question raised by earlier authorities: Is there a limit to how much pain one may cause an animal, if the goal is for human benefit? We find a dispute among rishonim whether it is prohibited to burden an animal excessively, so that humans can benefit. For example, may I place a load on an animal that is greater than it should be carrying? According to the Sefer Chassidim #666, this constitutes tzaar baalei chayim. On the other hand, the Terumas Hadeshen (1:105) rules that this is permitted. He further discusses whether one may remove the down, which is the soft feathers, from live geese. Is this halachically the same as shearing sheep, which is certainly permitted, or is it prohibited because of the level of discomfort? The Terumas Hadeshen concludes that although any use of an animal is permitted and does not violate tzaar baalei chayim, the custom is not to remove the down from live birds because this is very painful. This conclusion is quoted by the Rema as standard halachah (Even Ha’ezer 5:14).

Scientific experimentation

Is it permitted to use animals to run tests for medical research or other scientific experimentation? The earliest discussion I found on this question dates back over three hundred years, in a responsum penned by Rav Yaakov Reisher (Shu”t Shevus Yaakov 3:71), who permitted it. A much lengthier and very thorough analysis of the topic is found in a more recent work, the twentieth-century responsum of the late rav of Zurich, Rav Yaakov Breisch (Shu”t Chelkas Yaakov, Choshen Mishpat #34). He concludes that one may use animals to test products to see if they are safe, although it seems that this is permitted only when there is a direct research benefit and the potential suffering of the animals cannot be avoided. In other words, it is permitted to test a new medicine or cosmetic item on an animal to see if medical problems develop, but one may only do this to the extent necessary to see if the product is safe. One may not, while experimenting, abuse the animals in any way that is not necessary for the test being performed.

What is the halachah if the medical testing will cause excessive pain to the animals? Is this still permitted? As mentioned above, all opinions forbid inflicting or causing any unnecessary pain to animals. Whether one may conduct medical test or research that will cause considerable pain to the animal might be the subject of a dispute between the Sefer Chassidim and the Terumas Hadeshen. The Terumas Hadeshen rules that this is permitted, as long as there is human benefit. The Sefer Chassidim states that even human benefit permits only a degree of normal discomfort to the animal, but not an excessive amount.

However, it is possible that the Sefer Chassidim agrees that one may test a medicine under these circumstances, since the importance of the potential benefit is great. It would seem that he would prohibit testing a new cosmetic item that will cause an animal to suffer tremendously, whereas the Terumas Hadeshen would permit it.

The Shevus Yaakov concludes that testing a medicine or cosmetic item on a living creature to see if it is safe for humans is permitted, even if it causes much suffering to the animal (Shu”t Shevus Yaakov 3:71). This is because one is not causing pain to the animal directly, and one is trying to research whether this product is safe for people.

Shimshon

Some authorities bring evidence from the story of Shimshon that, when necessary, one may even cause excruciating pain to an animal. The book of Shoftim tells us that Shimshon captured 300 foxes and tied together their tails in a way that each knot held a torch; he then sent the foxes into the fields and orchards of the Pelishtim, burning everything to the ground (Shoftim 15:4-5). Thus, we see that one can cause tremendous pain to animals when necessary for human need.

However, others question this proof, since during warfare, much is permitted that is not otherwise allowed. Thus, in general, causing this degree of pain to an animal would certainly be forbidden (Shu”t Chelkas Yaakov).

Furthermore, I question this proof, since nowhere does it say that the foxes themselves were on fire – the torches that they transported set fire to the fields and orchards of the Pelishtim.

Animals or even insects?

Does the prohibition of tzaar baalei chayim apply to all living creatures? We find a dispute among the acharonim concerning this issue.

Rav Moshe Feinstein (Shu”t Igros Moshe, Choshen Mishpat 2:47) discusses whether one is permitted to work as an exterminator of unwanted mice, insects and other such wildlife. He rules that this is permitted when it is necessary for people, but that one should try to avoid killing the unwanted creatures directly.

Rav Moshe’s reason is that although it is permitted to eliminate pests when they are harmful to mankind, killing them still remains an act of cruelty that makes an impression on the neshamah of the person who does it. Rav Moshe demonstrates this from the fact that after we fulfill the mitzvah of destroying the ir hanidachas, the city that goes wayward, the Torah promises that Hashem will provide rachamim to the Jewish people (Devorim 13:18). Rav Moshe quotes the Ohr Hachayim, who says that notwithstanding that this destruction is necessary and fulfills a mitzvah, it still affects the neshamah of those involved, because doing brutal things makes one into a nasty person. However, the Torah promises that Hashem will provide us with rachamim, meaning that He will restore us to being our usual, merciful selves. In other words, He will remove from our neshamos the harm created by what we were forced to do. (To the best of my knowledge, this is one of only three places in all of Rav Moshe’s responsa that he quotes the Ohr Hachayim.) Similarly, exterminating varmints, even though it is necessary and therefore permitted, will affect one’s neshamah. Therefore, it is better to do the exterminating in an indirect way, which makes less of an impression on the neshamah. According to Rav Moshe, we can conclude that killing a fly, moth or other insect that is not bothering anyone is prohibited.

(Rav Moshe contends that shechting for food will not cause a person to become cruel, since this act fulfills a mitzvah, notwithstanding that one is not required to perform it. Rav Moshe seems to hold that since the Torah sometimes requires shechitah, such as, when offering a korban, its performance could never cause someone to become cruel.)

Insects should not apply

However, we find that an earlier authority, Rav Yaakov Emden, who sometimes referred to himself by his acronym Ya’avetz* (Yaakov ben Tzvi), did not understand that the concept of tzaar baalei chayim extends this far. He rules that tzaar baalei chayim does not apply to insects, but only to creatures large enough that mankind can use them for work (She’eilas Ya’avetz 1:110). Although Rav Yaakov Emden quotes the Arizal as having commanded his students not to kill even lice, the Ya’avetz explains this to be a midas chassidus, beyond the strict requirements of the halachah. In his understanding, it could be that the Arizal prohibited this destruction because it causes harm to one’s neshamah, the same line of reasoning that Rav Moshe applied to discourage an exterminator from killing insects in a direct way.

Is it prohibited min hatorah?

The tanna’im dispute whether the law of tzaar baalei chayim is min hatorah or whether it is only of rabbinic origin (Bava Metzia 32b; Shabbos 154b). One of the differences that results from this dispute is as follows: Let us assume that in order to avoid causing an animal pain or distress, one would need to violate a rabbinic prohibition. May one supersede the rabbinic prohibition in order to avoid tzaar baalei chayim? The answer is that if tzaar baalei chayim, itself, is only a rabbinic prohibition, one cannot violate one rabbinic mitzvah for the sake of another. However, if tzaar baalei chayim is prohibited min hatorah, then preventing suffering to an animal overrides a rabbinic prohibition (Shu”t Maharam meiRottenberg 3:181).

The following discussion of the Gemara will demonstrate this to us:

Rabban Gamliel’s donkey was laden with barrels of honey, and he did not want to unburden it until Shabbos was over. The Gemara asks why Rabban Gamliel waited until Shabbos was over, since this was clearly causing unnecessary discomfort for the animal. The Gemara replies that the honey had hardened and was therefore no longer suitable as a food, which would make it muktzah on Shabbos. The Gemara then asks why didn’t Rabban Gamliel release the ropes binding the barrels to the donkey so that they could fall off the donkey on Shabbos, something he could do without moving the muktzah. The answer was that Rabban Gamliel did not want the barrels to break. The Gemara, still not satisfied, asks why didn’t he place pillows under the barrels, thus cushioning their fall so that they would not break? The Gemara answers that the pillows would get dirty this way and become useless for the rest of Shabbos, and doing this on Shabbos is prohibited because of a rabbinic proscription called bitul kli meiheichano, literally, nullifying a tool from its use. The Gemara then asks that the prohibition of tzaar baalei chayim should supersede the rabbinic prohibition of bitul kli meiheichano. To this the Gemara replies that Rabban Gamliel held that the law of tzaar baalei chayim is only rabbinic, and therefore it does not supersede a different rabbinic prohibition (Shabbos 154b).

The Gemara’s conclusion

Notwithstanding Rabban Gamliel’s position that tzaar baalei chayim is forbidden only as a rabbinic injunction, there are other tanna’im who rule that it is forbidden min hatorah. The following passage of Gemara implies that Rabban Gamliel’s position is rejected by the later authorities in the time of the Gemara:

Rav Yehudah said in the name of Rav: One may place cushions and pillows underneath an animal that fell into an irrigation ditch to enable it to get out by itself. However, it is preferred to bring food and water to the animal for the rest of Shabbos, if possible, and if this will satisfy the animal’s needs, rather than place cushions and pillows underneath the animal, which will violate bitul kli meiheichano (Shabbos 128b).

This Gemara implies that if we can avoid both transgressing the law of bitul kli meiheichano and avoiding tzaar baalei chayim, we strive to accomplish both, but if that option does not exist, then tzaar baalei chayim supersedes the rabbinic prohibition of bitul kli meiheichano. Since this passage reflects the conclusion of the amora’im, we see that we do not rule in accordance with Rabban Gamliel, but rather we rule that tzaar baalei chayim is min hatorah. This is the halachic conclusion reached by most, if not all, halachic authorities (Shu”t Maharam of Rottenberg 3:181; Mordechai, Shabbos #448; Nimukei Yosef, Bava Metzia 32b; Sefer Chassidim #666; Shiltei Hagiborim, Shabbos chapter 18, pg. 51a note 3, quoting Riaz; Kesef Mishneh, Hilchos Rotzeach 13:9; Rema, Choshen Mishpat 272:9; Sma 272:12, 15; Gra, Choshen Mishpat 272:11). This law is also codified in Shulchan Aruch (Orach Chayim 305:19).

The Shulchan Aruch, reflecting this conclusion, cites a different halachah that results from the fact that tzaar baalei chayim is prohibited min hatorah. Although there is a rabbinic injunction prohibiting mounting or dismounting from an animal on Shabbos or Yom Tov, if someone did mount an animal, he is required to get off. (If this were forbidden, he would be required to remain on horseback the rest of Shabbos or Yom Tov, which would certainly cause tzaar baalei chayim.) This is true, notwithstanding that the act of dismounting constitutes a rabbinic violation of Shabbos (Shulchan Aruch, Orach Chayim 305:18). This ruling is consistent with our previous analysis. Since we conclude that tzaar baalei chayim is prohibited min hatorah, it can, when necessary, supersede a rabbinic prohibition, such as that of dismounting from an animal on Shabbos.

Violent rooster

Here is a related question, culled from the more contemporary responsa literature. If one discovers on Shabbos that one rooster is attacking other chickens, may one remove it from the coop on Shabbos, notwithstanding that a live animal is muktzah on Shabbos (Shu”t Har Tzvi, Orach Chayim 1:205)?

This question was asked of the late Rav Tzvi Pesach Frank, then rav of Yerushalayim. In his analysis of the topic, he quotes the previously mentioned conclusions of the Shulchan Aruch, that someone who mounted an animal on Shabbos should dismount it, because of tzaar baalei chayim, and that one must remove a burden from an animal, even by moving muktzah if no other method will work, because of tzaar baalei chayim. Therefore, Rav Frank concludes that it is permitted to remove the treacherous rooster from the others. He writes that it is preferred to have a gentile worker remove it, but if there is no gentile available, a Jew may remove it, notwithstanding that a rooster is muktzah on Shabbos. In other words, tzaar baalei chayim supersedes the prohibition of muktzah, when there is no way to accommodate both laws.

Conclusion:

Shlomoh Hamelech teaches (in Mishlei 12:10) Rachamei re’sha’im achzari, that the compassion of the evil is cruelty. What does this mean, particularly since the context of the pasuk implies that it is discussing the care one takes of his animals? The example chosen by the Sefer Chassidim (#669) is of an evil person who fed his animal well, but then expects it to perform beyond its capabilities – after all, he treated it so nicely. When the owner’s expectations are not realized, he beats the animal mercilessly. It turns out that his initial compassion caused him to be cruel.

The Tosefta (Bava Kama, end of Chapter 9) states that Rabbi Yehudah said in the name of Rabban Gamliel: “Know this sign well: as long as you act with mercy, Hashem will have mercy on you.” Sefer Chassidim #666 notes: If we are merciful to our animals, Hashem and others will be merciful to us.

*Note that several different scholars are referred to by this acronym.

 

Wanted Dead or Alive

In honor of Parashas Terumah and the Construction of the Mishkan…

Wanted Dead or Alive

bug trapQuestion #1: Getting Rid of those Bugs!

“May I trap or kill mosquitoes, bees, or wasps on Shabbos?”

Question #2: Hanging from the Lowest Tree

“I forgot to hang flypaper before Shabbos. May I do it on Shabbos?”

Question #3: A Charming Shabbos

“May a snake charmer work on Shabbos?”

Answer: Catching or dispatching

We have all been in the following uncomfortable situation. Some time during Shabbos, a mosquito appears in our vicinity, seeking to earn its living. Although we realize that this creature requires its sustenance, we are not eager that we, our children, or our guests should become mosquito fodder, even just as a minor donation. Are we permitted to trap or kill the mosquito? Trapping living things, tzad, was an action necessary for acquiring some of the materials used to build the Mishkan, and is one of the 39 melachos, categories of prohibited activity on Shabbos (Mishnah Shabbos 73a and Rashi ad loc.). Killing living things also violates the melachos of Shabbos, but space constraints will require that we leave this discussion for a different time. We will use this opportunity to discuss many pertinent principles of Shabbos and some details of the melachah of tzad.

Shabbos nomenclature

When discussing what one may or may not do on Shabbos, the Mishnah and Gemara use three terms: (1) chayov, punishable, when a particular act constitutes melachah, meaning that it desecrates Shabbos by violating a Torah law; (2) patur, exempt, meaning it does not violate a Torah law, and (3) mutar, permitted, when an act may be performed on Shabbos. We will discuss the middle term, patur, which states that a particular act does not violate Torah law, since this usually indicates something prohibited due to rabbinic sanction. Even though the word patur usually implies an act prohibited by rabbinic law, sometimes the Sages permitted it. But what makes performing a forbidden activity patur?

Meleches machsheves

The Gemara (Chagigah 10b; Bava Kama 26b; Kerisus 19b) teaches that the Torah prohibited only something that can be categorized as meleches machsheves, which can perhaps be translated as premeditated melachah. An obvious example of meleches machsheves would be trapping an animal to obtain its hide or meat. Similarly, someone who digs a hole to plant the base of a tree violates the meleches machsheves of choreish, ploughing, and one who picks a fruit performs a meleches machsheves of kotzeir, harvesting.

Meleches machsheves is often explained by what it is not. Following that approach, I will provide three categories of labor that are exempt from being defined as desecrating Shabbos min hatorah, because they do not qualify as meleches machsheves, at least according to some opinions.

Mekalkeil

In general, an act constitutes meleches machsheves only when its direct result is beneficial. This means that an action that is inherently destructive does not violate Shabbos min hatorah, even when one needs the result. For example, digging a hole in the ground, which one does not need, in order to obtain earth is defined as a destructive activity and prohibited only miderabbanan. The dug hole itself is a negative development, which renders the burrowing an act of mekalkeil, not prohibited min hatorah, but only because of rabbinic injunction. However, digging a hole to plant or to create a posthole results in a positive benefit and is indeed prohibited min hatorah, since one wants the hole in the ground.

Bemino nitzad

Here is a second example of meleches machsheves that is particular to the melachah that we are discussing, tzad. The tanna’im (Shabbos107b) dispute whether it is prohibited min hatorah to ensnare a creature that mankind does not typically use, such as a scorpion or a flea, which is called ein bemino nitzad, literally, a species that is not trapped. The halachic conclusion follows the lenient opinion, ruling that tzad applies min hatorah only to a species that is bemino nitzad, commonly trapped, so that mankind can benefit from it. For example, a species that is eaten, from whose body a medicine is extracted, or whose hide is used as leather qualifies as bemino nitzad. The halachic authorities discuss whether trapping an animal for scientific research or so that one can have it as a pet makes the animal into bemino nitzad (Rambam, Hilchos Shabbos 10:21; Chazon Ish, Orach Chayim 50:4 at end).

However, a species that is caught only because it is an annoyance has the status of ein bemino nitzad.

Why is this true? The purpose of trapping is to harness a living creature, so that mankind can use it. Thus, tzad is a type of acquisition (see Shu’t Avnei Neizer, Orach Chayim 189:7; however, see Biur Halachah, 316:2 s.v. Oh Choleh, who might disagree with this analysis.) However, trapping creatures that mankind does not generally use, such as scorpions or fleas, is not an act of acquiring these creatures, but of distancing them from victims that they may harm. Therefore, most opinions conclude that trapping a species that is ein bemino nitzad does not violate the melachah of tzad, and is prohibited only because of rabbinic injunction. Thus, since flies are ein bemino nitzad, catching them would not violate a Torah prohibition. Hanging flypaper on Shabbos would still involve a rabbinic prohibition, and it is similarly prohibited to set up a mousetrap on Shabbos (Magen Avraham 316:9; see Piskei Tosafos, Shabbos 17b #62).

By the way, many authorities consider mice to be bemino nitzad, since there are places in the world where their hide is used (Chayei Odom 30:7). There is also a dispute whether a non-kosher species that is harvested as food for non-Jewish consumption is considered bemino nitzad (Ritva, Shabbos 106b; Nimla Tal, Meleches Tzad #37).

Melachah she’einah tzerichah legufah

Many authorities rule that another category of activity is not prohibited min hatorah, because it is not considered meleches machsheves. There is a dispute among tanna’im whether a melachah she’einah tzerichah legufah, literally, an act not needed for its purpose, is prohibited min hatorah or only miderabbanan. Whereas Rabbi Yehudah contends that melachah she’einah tzerichah legufah is prohibited min hatorah, according to Rabbi Shimon, these acts are prohibited only by virtue of rabbinic injunction. Let me explain.

What is a melachah she’einah tzerichah legufah? Among the rishonim, we find differing opinions how to define and even how to translate this term, and there are many instances where a dispute in halachah results. Since this complicated question is a bit tangential to our topic, I am going to present only one approach. According to Tosafos (Shabbos 94a s.v. Rabbi Shimon) and the Rivash (Shu’t Harivash #394), Rabbi Shimon contends that the 39 melachos are prohibited min hatorah only when performed for a goal or purpose similar to the reason why this melachah was done when constructing the Mishkan. Performing a melachah to accomplish a purpose other than that for which this melachah was performed in the Mishkan qualifies as a melachah she’einah tzerichah legufah. This means that it is prohibited only miderabbanan, according to Rabbi Shimon and those who rule like him.

Here is an explanatory example: Removing an item that has a bad odor from a reshus hayachid, an enclosed area, into a reshus harabim, an open area meant for public use, is a classic case of melachah she’einah tzerichah legufah. Although moving something from a reshus hayachid into a reshus harabim constitutes the melachah of carrying, moving the foul-smelling item from a house to a reshus harabim does not constitute a melachah min hatorah, according to Rabbi Shimon, because the purpose of the carrying when building the Mishkan was to move the item being carried to a new location. However, when removing a foul-smelling item, there is no significance attached to the place to which the item is moved; one’s only goal is to distance it from its current location. The public area does not constitute the goal of one’s act, but, rather, a convenient place to dump unwanted material. For this reason, Rabbi Shimon contends that this act was not prohibited by the Torah, but only by the Sages. On the other hand, Rabbi Yehudah considers melachah she’einah tzerichah legufah to fulfill the definition of meleches machsheves and therefore prohibited min hatorah.

Although most rishonim conclude that the halachah follows Rabbi Shimon that melachah she’einah tzerichah legufah is prohibited only because of rabbinic injunction, the Rambam and others rule, according to Rabbi Yehudah, that melachah she’einah tzerichah legufah is prohibited min hatorah.

When exempt is permitted

There is a passage of Gemara that reflects both on our opening question and on a different aspect of the melachah of tzad. “Shmuel said: Whenever the Mishnah states that something is patur when performed on Shabbos, the activity is prohibited [because of a rabbinic injunction], with the exception of the following three instances, where patur means that the activity is permitted. The first case is catching a deer, the second is catching a snake and the third is lancing a boil” (Shabbos 3a; 107a, as explained by Tosafos, Shabbos 3a s.v. Bar). Shmuel proves from Mishnayos that, in these three instances, the acts are permitted (Shabbos 107a). The first two of these cases educate us to understand what constitutes the melachah of trapping. (The case of lancing a boil involves a different topic that we will leave for a future article.)

What are the first two cases presented by Shmuel? The first situation is when a deer entered a building and someone sat in the doorway of the building, thereby preventing the deer’s escape. When that person sat down, he trapped the deer and therefore performed the melachah of tzad. This is true, even if he was not involved in coaxing the deer into the building. The Mishnah (Shabbos 106b) then states that if a second person sits alongside the first in a way that the deer’s escape is still blocked, even when the first person gets up, the second person has not desecrated Shabbos. This is because the second person did not trap the deer but merely guaranteed that a captured animal remain in captivity. Although the Mishnah says that the second person is patur, Shmuel explains that one may lechatchilah sit down alongside the first person, even if one’s intention is to keep the deer trapped when the first person gets up. This explains a different aspect of tzad — the melachah is making the animal available for human use; once it is already trapped, there is no further violation in maintaining it under human control.

The second case is based on two different mishnayos. One Mishnah (Shabbos 107a) permits catching a scorpion so that it doesn’t bite, and another states that catching a snake to prevent it from biting does not violate Shabbos min hatorah, whereas catching it for medicinal use does (Eduyos 2:5). Tosafos proves that both Mishnayos that permit tzad to protect someone are discussing creatures whose bite is painful, but not life-threatening, pikuach nefesh (Tosafos, Shabbos 3a s.v. Bar). Were the Mishnah discussing a creature whose bite is life-threatening, it would be obvious that one may kill it, because of the general rule that actions necessary to protect life supersede Shabbos and almost all other mitzvos.

Shmuel ruled that although catching non-dangerous creatures is ordinarily prohibited on Shabbos, since this involves only a rabbinic injunction, the Sages permitted it under extenuating circumstances.

Why is this considered only a rabbinic injunction? We have already presented two possible reasons. The first is because of the principle of melachah she’einah tzerichah legufah, since one has no interest in capturing a snake or a scorpion (Tosafos op. cit.). The second reason is that one is not catching these species to make them available for human use, which is an essential component of the melachah of tzad (Avnei Neizer, Orach Chayim 189:7; see Biur Halachah, 316:2 s.v. Oh Choleh).

Mosquitoes versus snakes

Although we have discovered that one may catch snakes and scorpions that are not life-threatening, this does not tell us whether one may trap mosquitoes, bees or wasps. Although the sting or bite of these species is indeed painful, it is not usually as painful as a snake or scorpion bite. Thus, it might be that Chazal did not permit catching mosquitoes, bees or wasps.

Based on the following passage of Gemara, we can presumably prove the correct answer to this question:

“Someone who trapped a flea on Shabbos — Rabbi Eliezer rules that he is liable for desecrating Shabbos min hatorah, whereas Rabbi Yehoshua rules that his desecration of Shabbos violates only a rabbinic ordinance” (Shabbos 107b). The Gemara explains that this dispute is dependent on an issue that we discussed earlier — Does one desecrate Shabbos min hatorah if he traps a species that is not usually trapped? Rabbi Eliezer rules that he does, whereas Rabbi Yehoshua rules that he does not. Thus, it appears from this Gemara that although Shmuel proved that it is permitted to trap a scorpion, even of the non-deadly variety, one cannot trap a flea, which only causes discomfort.

Three types of varments

We can, therefore, divide the different types of unpleasant biters and stingers into three categories:

  1. Those that are potentially life-threatening to people. In this instance, if there is even the slightest possibility of danger, one may kill or catch them on Shabbos.
  2. Those whose bite is very painful, but does not present any life-threatening danger. These may be trapped on Shabbos, provided that one’s intent is to save people from harm (Rambam, Hilchos Shabbos 10:25). However, it is forbidden to trap if one intends to use the insect, reptile or arachnid. (Modern biology categorizes spiders and scorpions as arachnids, because they have eight legs, are carnivorous and are wingless. If we want to categorize insects and arachnids together, we should use the word arthropods, but that still excludes snakes and other reptiles. So, for most of this article, I have simply used the word creatures. My apologies to the scientists reading this.)
  3. Those whose bite will be unpleasant, but not highly painful. In this instance, there is a dispute among the rishonim. Tosafos and the Rosh (ad loc.) quote from an earlier baal Tosafos, named Rav Poras, that if one sees that an insect may bite him, he is permitted to catch the insect so that he can remove it. When the insect is not so close to him, he may brush the insect off, but he may not trap it.

Not all authorities accepted Rabbi Poras’s approach. The Mordechai (#402) quotes Rav Yehudah Gaon that he noticed that the “elder rabbis” did not trap fleas, even when the fleas were on their skin. The Beis Yosef, however, contends that even Rav Yehudah Gaon accepts the ruling of Rabbi Poras, but that he himself practiced this as a personal chumrah, not as the required halachah that he would rule for others. There are other rishonim, however, who disagree with Rabbi Poras and prohibit trapping mosquitoes, even when they are on someone’s skin, since they are only a discomfort and not dangerous (Meiri, Shabbos 107b).

Consensus

The consensus of halachic authorities follows Rabbi Poras, although there is a dispute among them whether it is permitted to catch the insect only when it is actually biting (Shulchan Aruch, Orach Chayim 316:9; Bach) or whether one may remove the insects even when they are in close proximity (Taz 316:8; Magen Avraham 316:18; Elyah Rabbah). The Mishnah Berurah (316:37) concludes that when one can brush off the insect, he should not rely on the heter of trapping it, but he implies that one may trap the insect if brushing it off will not suffice.

Answers

At this point, let us take a fresh look at some of our original questions:

“May I trap mosquitoes, bees, or wasps on Shabbos?”

The answer is that if the insect is about to attack someone, one may trap it. One may also trap it if its sting or bite is very painful, and certainly if it is potentially dangerous.

“May a snake charmer work on Shabbos?” If one is not intending to use the snake, it is permitted. This is all the more so if the snake is dangerous.

In conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos to ensure that Shabbos is a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. We certainly see this idea borne out by the ideas of meleches machsheves, which denote the purpose of the action, and have no correlation at all to the amount of energy expended. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by our refraining from our own creative acts (Rav Samson Raphael Hirsch Commentary to Shemos 20:11).

 

An Unusual Haftarah – That of Parshas Mishpatim

Question #1: A Rare Occurrence

Why is the haftarah for parshas Mishpatim read at such irregular intervals?

Question #2: Haftarah in Reverse

Why do we read the verses of this haftarah in a different order from how they appear in Tanach?

Question #3: Are We Ignoring Chazal?

How are we permitted to read this haftarah out of order, when Chazal prohibited this practice?

Introduction:

The section from sefer Yirmiyahu (34:8-22) beginning with the words Hadavar asher hayah leYirmiyahu discusses the laws of eved ivri, a Jewish slave. For this reason, it is an extremely appropriate haftarah for parshas Mishpatim. At the same time, as the questions above note, there are three unusual and curious aspects of this haftarah, which I will now explain.

Sporadic haftarah

The first question posed above is that, notwithstanding the appropriateness of Hadavar for parshas Mishpatim, in most years we read different haftaros this Shabbos. Furthermore, Hadavar is read in a fairly sporadic pattern. For example, we read it this year, and, under our current fixed calendar system, we will read it again in three years, in 5779 (2019), in 5782 (2022) and in 5785 (2025). This seems like a fairly regular schedule of every three years. However, this is followed by an interlude of ten years before we read it again — not until 5795 (2035). Why is the reading of Hadavar so erratic, when Mishpatim is read very predictably every year, the Shabbos after Yisro and before Terumah?

Driving in reverse

The second question raised above concerns the unusual structure of the haftarah. It consists of reading fifteen pesukim that begin with the words Hadavar from the book of Yirmiyahu (34:8-22) and then closes by reading two pesukim that are nine verses earlier in the sefer (Yirmiyahu 33:25-26). This is the only time that we close a haftarah by reading an earlier passage. Why do we read the passages in an order different from the order in which they appear in sefer Yirmiyahu?

Are we ignoring the Gemara?

The third question is a continuation of the previous one, although it necessitates an introduction. Chazal instituted several rules about reading the haftaros, one of which is called ein medalgim lemafrei’a, which prohibits going back to read an earlier section after we have read a later part. Thus, after reading Chapter 34 of Yirmiyahu, how are we permitted to return to Chapter 33?

Why so sporadic?

Having presented the three issues, allow me to answer these questions in the order in which they were asked. The first question was that the scheduling of this haftarah is both infrequent and sporadic. In most years, we read a different haftarah for Shabbos Mishpatim, and, occasionally, there is a gap of many years between one reading of Hadavar and the next. The reason for this is not as complicated is it sounds. Parshas Mishpatim almost always falls on the Shabbos before Rosh Chodesh Adar. In non-leap years, on that Shabbos we read parshas Shekalim for maftir and, therefore, we read the special haftarah for Shabbos Shekalim which is in sefer Melachim. As a result, almost the only time we read Hadavar is in a leap year, when Shekalim is read on or immediately before Rosh Chodesh of the second Adar – since it is the month immediately preceding Nissan – and Mishpatim falls before the first Adar. (There is a very occasional common year, such as 5785, when parshas Terumah falls on Rosh Chodesh Adar and is therefore the Shabbos on which we read Shekalim. In those years, we indeed read Hadavar on Mishpatim in a common year.)

Even in a leap year, when Shekalim never coincides with Mishpatim, there are years when Shabbos Mishpatim falls either on Rosh Chodesh or on Erev Rosh Chodesh. In these instances, we read the special haftaros for Rosh Chodesh or for Erev Rosh Chodesh. As a result, at times, many years go by until we again read Hadavar.

Haftarah in reverse

The second question concerned the unusual structure of the haftarah, in which we close by reading two pesukim that are a bit earlier in the sefer. Why do we read the haftarah in an order different from how it appears in sefer Yirmiyahu?

Happily ever after

The answer to this question requires our examining an accepted custom – not to end an aliyah, a haftarah or a megillah at a negative point. This concept is already mentioned by Rashi in his last comment on Eicha, where he notes that four seforim of Tanach Eicha, Yeshayahu, Trei Asar and Koheles – end on a negative tone, so we repeat the next to last pasuk afterwards to end on something positive. (The source for this idea is in Talmud Yerushalmi, Brachos, 5:1.)

In accordance with this approach, where the natural end of a haftarah closes on something negative, we often skip ahead a bit to find a more pleasant place to end the haftarah. The unusual aspect of Hadavar is that we do not skip ahead, but backwards, to find a pleasant ending. The reason we do this is because the next several chapters of Yirmiyahu do not include any pesukim that would be considered an appropriate ending for the haftarah. From a reader’s perspective, the most appropriate, pleasant place to stop is a few pesukim before Hadavar, which is why the custom developed of adding these two pesukim at the end.

Shuva versus Vayeitzei

An interesting related question: The haftarah for Shabbos Shuva begins towards the end of Hoshea, one of the twelve prophets whose writings comprise Trei Asar, with the words Shuva Yisroel. The final words of Hoshea are that Hashem’s ways are straight, yet sinners will stumble over them, u’poshe’im yikashlu bam. On Shabbos Shuva, we consider this to be a negative way to end the haftarah, and therefore we continue by reading elsewhere in Trei Asar in order to close with a pleasant ending. (There are many different customs how to accomplish this; I am aware of at least five.) However, the haftarah that most Ashkenazim read every year for Vayeitzei, which begins earlier in Hoshea, ends at the end of Hoshea with the words uposhe’im yikashlu bam. Why are these words considered positive enough to be an appropriate ending when we read this haftarah on Vayeitzei, but an inappropriate place to close on Shabbos Shuva? (It should be noted that the Mishnah Berurah [428:22] and many calendars published in Eretz Yisrael include reciting additional verses when this haftarah is read on Vayeitzei, in order to end more positively. However, most chumashim do not include these additional verses, and it is not the common practice in chutz la’aretz.)

I would like to suggest the following: The stumbling of the evil is not inherently a bad thing, and, for this reason, this is considered an appropriate place to end the haftarah on Vayeitzei. Nevertheless, on Shabbos Shuva, ending with u’poshe’im yikashlu bam, the sinners will stumble, is inappropriate, because the first Shabbos of the year should have a more encouraging conclusion. Alternatively, mention the sinning of the evil is an inappropriate closing during the aseres yemei teshuvah, when our entire theme is that everyone will do teshuvah.

Parshas Kedoshim

It should be noted that there are aliyos and readings that, indeed, do end in negative places, the most obvious example being the end of parshas Kedoshim, whose closing discusses a case of capital punishment. Why are we inconsistent – ending some aliyos in negative places, yet in others skipping or repeating verses to avoid this?

It seems that ending in a negative place is, in general, not forbidden but, rather, a custom that developed to try to find a pleasant ending, wherever this does not distort the reading. However, if finding a pleasant place to end an aliyah will complicate matters, we stop at a convenient place, even though it is negative. Alternatively, the division of the parshiyos predates the custom that we not end an aliyah at a negative point, and these divisions were left in place, even after the custom developed.

The tochachah

We can prove that ending an aliyah in a negative place is a custom that developed, but is not halachically required, from the Gemara and early halachic authorities, in their discussion concerning the public reading of the tochachah. In two different places, parshas Bechukosai at the end of sefer Vayikra and parshas Ki Savo in Devorim, the Torah describes in great detail the calamities that befall Klal Yisroel, should we fail to observe the Torah properly. This part of the Torah is customarily called the tochachah, literally, the admonition, although the Mishnah (Megillah 31a) calls it the curses. Chazal (Megillah 31b) discuss whether one may divide the tochachah into different aliyos. The Gemara concludes that the tochachah in Bechukosai, which is the harsher of the two, may not be divided into aliyos, whereas the tochachah of Ki Savo may be divided. Thus, we see that, other than the tochachah of Bechukosai, one may conclude an aliyah at an unpleasant point.

The Rambam (Hilchos Tefillah 13:7) and the Shulchan Aruch (Orach Chayim 428:6) already note that, although it is permitted to end aliyos in the middle of the tochachah of Ki Savo, the custom developed to avoid doing this. This custom was extended to include any place where an aliyah would end in an unpleasant place. However, where accommodating this practice would result in an unusual division of the parshiyos, such as at the end of parshas Kedoshim, we do end the parshah at its natural division, notwithstanding its being a negative place.

Are we ignoring Chazal?

At this point, we will discuss the third question I raised above. How are we permitted to read this haftarah out of order, when Chazal prohibited this practice? Let me explain the question.

Chazal established several rules regarding the reading of the haftarah. One beraisa provides the following directives:

One may not skip from one book of the prophets to another. However, one may skip from the reading of one prophet to another prophet within Trei Asar, provided that one does not skip from the end of the book to its beginning (Megillah 24a). I will refer to this last rule as the prohibition of ein medalgin lemafrei’a, literally, “not to skip backwards.”

Switching prophets midstream

The Gemara is ruling that although one may skip ahead within the same book of the prophets, one may not skip from the writings of one navi to another, such as from Yirmiyahu to Yeshayahu. Rashi explains that skipping from one navi to another confuses people, which is explained by the Aruch Hashulchan (Orach Chayim 144:2) in the following manner: When Hashem brings the presence of His Shechinah onto a prophet, the prophet perceives a vision and a message, which he will later describe. The way the prophet experiences his vision and how he expresses himself bear the mark of aspects of his personality. This is called ein shnei nevi’im misnabe’im besignon echad, literally, “no two prophets prophesy in the identical style” (Sanhedrin 89a). If the haftarah were to shift from one prophet to another, the audience listening would be required to adjust suddenly to the style and mindset of a different prophet, which is confusing. As a result, the listeners would not absorb the full impact of what is being taught, which is why Chazal forbade switching prophets in mid-haftarah.

The Gemara continues by explaining that within Trei Asar, a book composed of the writings of twelve different prophets, Chazal permitted skipping from the writings of one navi to another. Presumably, the reason is that people expect style changes within Trei Asar, so they are not confused.

Ein medalgin lemafrei’a

Returning to the original beraisa, which states: One may not skip from one book of the prophets to another. However, one may skip from the reading of one prophet to another prophet within Trei Asar, provided that one does not skip from the end of the book to its beginning. The question is whether the rule prohibiting medalgin lemafrei’a, reading verses of a book out of order, applies only to the book of Trei Asar, or is it prohibited in any sefer navi. If it refers only to Trei Asar, then reversing direction at the end of the haftarah of Hadavar, which is from the book of Yirmiyahu, does not present any problem.

The authorities dispute which interpretation of the beraisa is correct. The Kesef Mishneh, indeed, rules that ein medalgin lemafrei’a applies only to Trei Asar and nowhere else. However, the Magen Avraham disagrees and understands that ein medalgin lemafrei’a applies to the works of any of the prophets. It is possible that our custom of skipping backwards when reading Hadavar is based on the Kesef Mishneh’s understanding of the Gemara. However, since most late authorities follow the Magen Avraham’s approach, it is unusual that common custom should conflict with his ruling. Are there other approaches to justify the practice?

Foreign additions

Prior to presenting two other approaches to justify the practice of reading the end of the haftarah Hadavar out of order, we should examine a different controversial custom that dates back many hundreds of years. In the times of the rishonim, on the Shabbos after someone married, the haftarah was concluded by adding two or three verses from Yeshayahu (61:10) beginning with the words Sos Asis, because these verses refer to a chosson and kallah (Beis Yosef, Orach Chayim 144). The problem with this custom is that whenever the week’s haftarah is from a book other than Yeshayahu, reciting Sos Asis skips from one navi to another.

There was also another, similar practice that seems to violate Chazal’s dictates. When Rosh Chodesh begins on Sunday, a special haftarah from Shmuel is usually read that begins with the words Vayomer Yonasan mochor chodesh. A custom developed that, when Rosh Chodesh fell on Shabbos and Sunday, after reading the haftarah of Shabbos Rosh Chodesh, which is from the closing words of Yeshayahu, the first and last verses of the haftarah mochor Chodesh were read as a reminder that the next day is also Rosh Chodesh. Yet this practice runs counter to the Gemara’s prohibition of switching prophets in mid-haftarah!

The Terumas Hadeshen

One early authority, the Terumas Hadeshen, suggests why these customs do not violate the takkanah. He comments that there are two disputing reasons why one may not switch from one navi to another while reading the haftarah. As we noted above, Rashi explains that the reason is to avoid confusing the listeners. However, other rishonim provide a different reason why one may not skip from one navi to another: closing one navi scroll and opening a different one, while the congregation is waiting, constitutes tircha detzibura, literally, “inconveniencing the congregation.” According to the latter approach, the Terumas Hadeshen explains why the takkanah not to switch prophets in mid-haftarah no longer applied in his day.

Bound Bibles

Although the Terumas Hadeshen lived before the invention of the printing press, he notes that, in his day, they no longer wrote the works of the prophets as scrolls but, instead, they were written as manuscript pages and then bound into books. Among the practical advantages of the bound edition is that one can place a marker in the different places from which one intends to read and then simply turn the pages at the correct time to the appropriate marker. As a result, switching to the writings of a different prophet in mid-haftarah does not involve any tircha detzibura, as opposed to closing a scroll and opening a new one, which takes far more time. For this reason, the Terumas Hadeshen contends, those who explain that Chazal prohibited switching prophets in mid-haftarah because of tircha detzibura will conclude that this is permitted when the haftarah is in book form. He concludes that this is the rationale for those who add verses from Sos Asis or Mochor Chodesh on the appropriate occasions.

However, the Terumas Hadeshen notes that, according to those who prohibit changing prophets in mid-haftarah because the style-change is confusing, it will make no difference whether one is reading from a bound book or a scroll. In both instances, switching to a different author confuses people and may not be done.

Justified conclusion

Based on this approach of the Terumas Hadeshen, we may be able to permit going back to two earlier pesukim to conclude the haftarah of Hadavar, if we assume that the prohibition of ein medalgin lemafrei’a is because of tircha detzibura.

When more is less

However, the custom is not yet out of the woods. Another aspect that impacts on this ruling is the following: When people read the haftarah from a bound volume, the heter mentioned by the Terumas Hadeshen applies. However, today many yeshivos and yeshivah-type shullen have the mehudar custom of using handwritten scrolls of nevi’m for the reading the haftarah. (An explanation for this custom is a topic for a different article.) The Terumas Hadeshen’s rationale will not permit reading Sos Asis, Mochor Chodesh or the last verses for Hadavar from a scroll at the end of a haftarah. This would result in the rather anomalous situation in which the chumra of reading the haftarah from a scroll may ultimately lead to violating a takkanas Chazal!

Another answer

All is not lost, and we can still find justification, even for the scroll readers. Other authorities provide a different reason to permit reading Sos Asis after a haftarah from a different navi. They explain that these verses are not considered part of the haftarah but a concluding song after the haftarah (Beis Yosef, Orach Chayim 144, quoting Nemukei Yosef; Levush ad loc. 144:2). This is true, despite the fact that these pesukim are read before the brochos of the conclusion of the haftarah. Similarly, reading the verse Mochor Chodesh after the haftarah does not violate the takkanah of Chazal not to switch prophets in mid-haftarah because this is considered an announcement and not part of the haftarah.

Conclusion

According to this last approach, adding some verses for a pleasant conclusion is not considered part of the haftarah, and therefore does not violate the takkanas chachamim.

As an aside, I have been told that Rav Chayim Kanievsky, shlit”a, advises people who read the haftarah from a scroll to read the last two verses of this week’s haftarah from a regular, printed chumash. This emphasizes the fact that these are not considered part of the haftarah and therefore do not violate the takanas chachamim.

 

What Do I Do with My Sheimos?

American Friends of Nimla Tal Inc. is a tzedakah that distributes all of the money received to situations here in Eretz Yisroel. In addition, a special feature, good through the month of December, is that PayPal adds 1% to the amount donated. So, click on www.paypal.me/rabbikaganoff to donate, and you will be given the option to enter your amount. If you enter $100, for example, you get a US IRS tax deduction of $100, and $101 goes to help the poor in Israel. No money goes to pay salaries or other no expenses.

I know that the name of the parsha is Shemos, and not Sheimos, but…

What do I do with my Sheimos?

Question #1:

vintage-pagesOne of the shul’s baalei batim calls the rav with the following concern:

“The shul’s sheimos collection is a fire hazard – a catastrophe waiting to happen. Can we just burn everything before a dangerous fire breaks out?”

Question #2:

I receive the following question from Cheryl:

“Rabbi, this has got to be the most interesting e-mail question you receive today. I am on a cruise in the Mediterranean, courtesy of, and with, my not-yet-observant parents, and today I spent the day looking at Jewish sites and other tourist attractions at our port-of-call. At one of the places, an elderly gentile lady gave me a large bag of old, tattered siddurim – no value. I have no idea what to do with them, and they are with me now in my cabin on the ship. May I bury them at sea?”

Response:

Answering the above questions provides an excellent opportunity to understand the topic called either genizah or sheimos. The particular emphasis in this article will be: what is the proper way to dispose of worn-out seforim?

Should it be called sheimos or genizah?

Which is the “correct” term? The word used in Modern Hebrew for a religious item whose discarding must be handled in a special way is genizah, which literally means that they must be hidden. Indeed, this is the term used by the Gemara for the process of disposing of these items, and it is easy to understand how the term came to refer to items that require genizah, although technically genizah refers to the place where the item is placed.

The Yiddish word for these items is sheimos, whose source is the term sheimos she’einam nimchakim, meaning the names of G-d that the Torah prohibits erasing. In Parshas Re’eih, the Torah commands: Destroy all the places where the gentiles that you are driving out worshipped their gods, whether they are on high mountains, on hills, or beneath foliate trees. Raze their altars, smash their pillars, burn their worshipped trees, and demolish the images of their gods. Obliterate the names (of their deities) from that place (Devarim 12:2-4).

The Torah then closes this passage: Do not do this to Hashem your G-d!

When the Torah states: Obliterate the names from that place. Do not do this to Hashem your G-d, it is prohibiting obliterating Hashem’s Name (Shabbos 120b; Rambam, Hilchos Yesodei HaTorah 6:1). The Gemara (Shavuos 35a) calls the names of Hashem that we may not erase sheimos she’einam nimchakim, which later became the origin of the term sheimos as a generic term to describe religious items whose discarding must be handled in a special way. Thus, either word, genizah or sheimos, may be used.

That which we call Hashem

Although there are many expressions, such as the All-merciful One and the Creator, which refer to Hashem, halachah recognizes a major distinction between erasing the actual holy names of Hashem, and between erasing terms that describe Hashem, but are not actual names. Erasing the actual “names” of Hashem, the sheimos she’einam nimchakim, violates a lo saaseh of the Torah, one of the 613 mitzvos, and qualifies as a prohibition as serious as desecrating Yom Tov or eating non-kosher (see Makkos 22a). The names of Hashem, of which there are about ten, include, among others, Elokim, Elokeinu, Keil, Shakai, Tzevakos, Eloak, and, of course, the names I will call havayah and adnus. (Following the usual practice, I have substituted the “k” sound somewhere in the above names, so that readers do not err and recite these holy names in vain.) Erasing any of these names is prohibited min haTorah.

Erasing attributes

On the other hand, expressions that describe attributes of Hashem — such as Rachum, All-merciful one; Chanun, He Who bestows kindness — may be erased, even when they refer to Hashem (Shavuos 35a; Rambam, Hilchos Yesodei HaTorah, 6:5). The Torah’s prohibition, do not do this to Hashem your G-d, applies only to a name of Hashem, not to an attribute that describes Hashem.

Similarly, there is no prohibition to erase His names written in other languages, such as G-d, even when spelled with the “o” in the middle (Shach, Yoreh Deah 179:11), although one must exercise care that these names do not become treated disrespectfully (Urim, 27:2, quoted also by Nesivos HaMishpat and Aruch HaShulchan ad loc.). The reason we are accustomed to spelling the name G-d, rather than with the added “o,” is because of concern that the paper it is written on might end up in the garbage or treated in some other disrespectful way.

Does the prohibition include commentaries, Gemaros, et cetera?

Although the Torah violation, do not do this to Hashem your G-d, applies only to actual names of Hashem, Chazal prohibited destroying other holy writings, including commentaries, works of Mishnah, Gemara or halachah, and other Torah works (see Rambam, Hilchos Yesodei HaTorah 6:8; Shu’t Tashbeitz 1:2).

What happens when they wear out?

Granted that the Torah prohibited destroying works that include Hashem’s Name, eventually a sefer Torah becomes worn out and unusable. What does one do with it, then, if it is prohibited to destroy it? The precise details of how to dispose of these items is exactly the topic for today’s article.

Buried in earthenware

The Gemara teaches that worn out sifrei Torah should be placed in earthenware vessels and then buried next to a talmid chacham, or, minimally, next to someone who learned halachah, meaning someone who at least studied Mishnayos (Megillah 26b). Placing them inside these vessels forestalls the decomposition of the sifrei Torah for a very long time (Ran), and placing them together with someone who studied Torah is a more respectful way of treating sifrei Torah that can no longer be used. It is very unfortunate that Hashem’s Name becomes obliterated, even in an indirect way, and we must delay the decomposition for as long as possible.

Genizah of printed sefarim

From after the time of the Gemara until the invention of the printing press in the 1400’s, we find little discussion about how to dispose of holy works. Since everything was handwritten and therefore scarce and very expensive, we can presume that there were not a lot of worn out sifrei kodesh, and there was no difficulty in following the Gemara’s description for their retirement. However, after the invention of the printing press, the sheer volume of printed material increased geometrically, and we find halachic discussion concerning whether wornout printed sefarim must be disposed of in the same manner as the Gemara describes for sifrei Torah.

The teshuvah of the Be’er Sheva

The earliest responsum I have seen on the subject is printed in the sefer Be’er Sheva, authored by one of the great Torah leaders of the early seventeenth century, Rabbi Yissachar Dov Eilenburg. He was a talmid of the Levush, and his sefer includes a haskamah from the Maharal of Prague! The Be’er Sheva reports that in his day, it was not uncommon for people to burn the worn-out printed editions of sifrei kodesh. Those who burned the sifrei kodesh claimed that this was more respectful than burying them, because burial often resulted in the sifrei kodesh being unearthed and therefore becoming treated disrespectfully.

The Be’er Sheva takes strong issue with this approach, noting that it is prohibited to destroy any type of kisvei hakodesh, and that burning them certainly violates halachah. The claim that burying the sefarim leads to their desecration is unfounded, he states, because the desecration is a result of not burying the genizah correctly. As we mentioned above, the Gemara describes burying in earthenware vessels. If, indeed, all genizah were to be buried this way, argues the Be’er Sheva, then the kisvei hakodesh would never be strewn about after their burial. He concludes that worn-out, printed Torah material must be buried in earthenware vessels, just as one is required to bury sifrei Torah this way. This responsum of the Be’er Sheva is subsequently cited authoritatively by the Magen Avraham (154:9).

Not enough earthenware to go around

Notwithstanding the rulings of the Be’er Sheva and the Magen Avraham prohibiting the burning of wornout kisvei hakodesh, we find the issue of burning sheimos resurfacing a century later. It appears that burying the massive amounts of sheimos in earthenware vessels was not practical, presumably because appropriate earthenware vessels were not easily available in the quantities required. Since no other practical solution was acceptable to the Be’er Sheva and the Magen Avraham, accumulations of sheimos were doing just that — accumulating. Thus we read:

The shul’s sheimos collection is a fire hazard – a catastrophe waiting to happen. Can we just burn everything, before a dangerous fire breaks out?”

This is the exact question asked three hundred years ago by members of the Jewish community in Metz, Alsace-Lorraine, from their rav, Rav Yaakov Reischer, one of the great halachic authorities of his era, famed for his many classic Torah works, including Minchas Yaakov (on the laws of kashrus), Chok Yaakov (on Hilchos Pesach), Toras Hashelamim (on Hilchos Niddah), Iyun Yaakov (on Agadah of Shas), and his responsa, Shevus Yaakov.

In a responsum published in Shevus Yaakov, Rav Reischer reports that previous attempts to bury the amassed sheimos had resulted in gentiles unearthing the kisvei hakodesh and using them in a highly degrading way. For lack of any solution, the sheimos were accumulating and indeed were a fire hazard. Because of the life-threatening emergency that now resulted, the Shevus Yaakov ruled that it was preferable to burn the sheimos, which he felt was the most viable resolution of the problem, since burial in earthenware vessels was no longer feasible.

Corresponding mechutanim

In Nissan 5483 (1723), Rav Reischer sent his teshuvah permitting, under these circumstances, the burning of genizah, to his mechutan, Rav Yechezkel Katzenellenbogen, the rav of Hamburg, for review, presumably hoping that Rav Katzenellenbogen would agree. The correspondence between these gedolei Torah was subsequently published in two different places – in Rav Reischer’s Shu’t Shevus Yaakov, as Yoreh Deah, Volume 1, #10-12, and in Rav Katzenellenbogen’s Shu’t Keneses Yechezkel as responsum #37. The two versions of the correspondence are not absolutely identical, but comparing the two versions broadens one’s understanding of the dispute. In general, the Keneses Yechezkel account is somewhat truncated in places, but includes the dates of the letters. Apparently, when Rav Katzenellenbogen decided to print this correspondence, he abbreviated his own letters, although he published his mechutan’s letters in full.

A more important fact is that the account published in Keneses Yechezkel includes a final letter from Rav Katzenellenbogen that does not appear in Shevus Yaakov.

Family feud

Although both gedolim correspond to one another with great respect, they dispute strongly regarding what one should do with the accumulated sheimos material when burial in earthenware vessels is not a practical solution. In his response dated 17 Kislev, the Keneses Yechezkel rejects fully his mechutan’s proposal that the circumstances permit burning the sheimos, but instead rules that one should construct wooden boxes around the genizah, find an abandoned lot, and bury the wooden-entombed sheimos with three tefachim (about 9-11 inches) of earth above them.

The second volley

On the 23 of Teiveis, the Shevus Yaakov penned his retort to his mechutan, rejecting the idea that wooden boxes are as good as earthenware, and insisting that if all kisvei hakodesh must be buried in earthenware, burying in wood, which decays much more quickly, will not suffice. He contends that burying in wood is the equivalent of burying directly in the earth, which he prohibits as a tremendous bizayon to the kisvei hakodesh. He feels that burying in earth, either with or without a wooden protection, is a far greater bizayon to the kisvei hakodesh than burning them. Thus, unswayed by his mechutan’s rejection of his proposal, he remains with his original suggestion – that since burying all the genizah in earthenware containers is not practical, and burying them in wooden containers is not acceptable, the remaining option is to burn the sheimos.

The response from the Keneses Yechezkel was not long in coming. On the 17th of Shvat, the Keneses Yechezkel penned his retort, again reiterating his position that it is absolutely forbidden to burn sheimos, and that it is perfectly acceptable, and therefore required, to bury them in wooden boxes. (This last letter is the part of the correspondence that does not appear in Shu’t Shevus Yaakov, but only in Keneses Yechezkel.)

Packing the printed material

It is noteworthy that both of these authorities rule that printed sefarim must be packed properly before burial, which was also the position of the Be’er Sheva and the Magen Avraham that I quoted above. On the other hand, the Pri Megadim (commenting on the above-quoted Magen Avraham), who was born shortly before the passing of the Keneses Yechezkel and the Shevus Yaakov, notes that the custom is to bury worn-out printed sefarim without placing them inside vessels, and to require burial in earthenware vessels only when burying worn-out, hand-written nevi’im and kesuvim that are written on parchment. (The nevi’im he is describing are used contemporarily by many shullen for reading the haftaros.) The custom mentioned by the Pri Megadim disputes the above quoted authorities, the Be’er Sheva, the Magen Avraham, the Keneses Yechezkel, and the Shevus Yaakov, all of whom held that printed sefarim must be packed in earthenware or with other protective means before burial.

What is the accepted halachic practice?

The prevalent accepted practice follows the Pri Megadim’s observation — that is, although we insist that worn-out printed sefarim must be buried, they are not packed in either earthenware or even wood boxes before burial. The Mishnah Berurah (154:22, 24), when discussing this issue, quotes only the Pri Megadim; he does not even mention the disputing earlier opinions.

How can we permit this?

Granted that the minhag follows the Pri Megadim, but what is the halachic basis to permit this? Neither the Pri Megadim nor the Mishnah Berurah explains the rationale to permit burying these items, without first packing them appropriately. However, an authority contemporary to the Pri Megadim, the Zera Emes (Volume II #133), does discuss this issue.

The Zera Emes was asked the same question that was asked of the Be’er Sheva, the Keneses Yechezkel and the Shevus Yaakov — whether there is any basis to permit the burning of printed sheimos. In response, the Zera Emes first cites many early authorities who held that all printed sefarim require burial in earthenware vessels. He indeed concludes that all genizah items require burial. He then analyzes whether all genizah items require to first be packed in earthenware vessels. He notes that the Gemara, itself, implies that there are different levels of kedushah when burying holy items. Although the Gemara mentions several items that require genizah, such as the coverings of the sefer Torah (often called mantelach), mezuzos, tefillin, tefillin bags and straps, it requires only that these items have genizah and does not mention that they be first placed in earthenware. The requirements of placing the genizah item in an earthenware vessel and burying it near a talmid chacham are mentioned only regarding a sefer Torah. Other holy writings do not require this, and it is sufficient to provide them with what the Zera Emes calls “a minimal burial” — meaning burial in earth. Burial is a respectful way to allow for the decay of holy works, both because burial is halachically a respectful way of disposal, and because the deterioration is caused indirectly.

The Zera Emes adds one more requirement – that the sheimos must be placed into some type of bag or covering before it is buried. This covering is necessary, in his opinion, because placing directly into the ground is not considered a respectful way to treat kisvei hakodesh. We should note that, according to the contemporary sefer Ginzei HaKodesh, Rav Elyashiv held that, in a situation where it is difficult to wrap the genizah, one may bury it without wrapping. This means that, in his opinion, placing kisvei hakodesh directly in the ground is not disrespectful.

Burial at sea

At this point, we can answer Cheryl’s question:

I am on a cruise in the Mediterranean. At one port-of-call, a gentile lady gave me a large bag of old, tattered siddurim, which are now in my cabin on the ship. May I bury them at sea?

As you can by now imagine, I answered Cheryl that she is not permitted to bury the genizah at sea. According to all opinions quoted above, disposing worn-out kisvei hakodesh in water is considered destroying them directly. According to the Be’er Sheva and the Keneses Yechezkel, all kisvei hakodesh require burial in the earth, and in earthenware. According to the Pri Megadim and the Zera Emes, although burial is permitted in earth, this is only in earth, where the deterioration takes time, but “burial at sea” is a bizayon to the holy works. Even the Shevus Yaakov, who permitted burning kisvei hakodesh when one cannot bury them in earthenware vessels, expressly forbade burial in earth without packing them first, because the moisture of the earth is considered directly destroying them and forbidden, and certainly, disposal directly in water is forbidden.

Conclusion — contemporary practice

Common practice of those who bury genizah today is to pack all handwritten kisvei hakodesh, including sifrei Torah, mezuzos, and tefillin parshiyos, in earthenware or glass containers before burial; whereas worn-out, printed sefarim are simply placed in bags or cardboard boxes and buried. Thus, it appears that although we are following the distinction between sifrei Torah and other holy writings as explained by the Zera Emes, contemporary practice is to be slightly stricter than his ruling regarding how we wrap mezuzos and tefillin parshiyos prior to burial.

Thousands of pages of Torah rattle off presses and home and business printers every day, spreading Torah to every corner of the globe. By disposing of this material appropriately, we help ensure that this glory of Torah does not lead to its desecration.

 

 

How Many Should be Saying Kaddish?

American Friends of Nimla Tal Inc. is a tzedakah that distributes all of the money received to situations here in Eretz Yisroel of which I have personal knowledge. Usually, the money is used to pay for therapy. In addition, a special feature, good through the month of December, is that PayPal adds 1% to the amount donated. So, click on www.paypal.me/rabbikaganoff to donate, and you will be given the option to enter your amount. If you enter $100, for example, you get a US IRS tax deduction of $100, and $101 goes to help the poor in Israel. No money goes to pay salaries or other no expenses.

Since, in Parshas Vayechi, we read of Yaakov Avinu’s last instructions to his children, this is an appropriate week to discuss some of the laws of kaddish.

How Many Should be Saying Kaddish?

Question: Is it better that each mourner recite only one kaddish, or that all the mourners recite all the kaddeishim?

Answer: Most people are under the impression that whether the “mourner’s kaddish” (kaddish yasom) is recited by only one person or whether many recite it simultaneously is a dispute between the practices of Germany and those of Eastern Europe. However, we will soon see that this simplification is inaccurate. There were many communities in Eastern Europe where kaddish was said by only one person at a time, and this was the universal Ashkenazic practice until about 250 years ago.

The custom that many people recite the mourner’s kaddish simultaneously was accepted and standard Sefardic practice (meaning the Jews of North Africa and the Middle East), going back at least to the early 18th century (see Siddur Yaavetz, comments after Aleinu), although when this custom was instituted is uncertain. But before we explore the issue of whether more than one person may say kaddish simultaneously, let us first examine the origins of reciting the mourner’s kaddish altogether.

Origins of kaddish

Although the Gemara refers to kaddish in numerous places (Brachos 3a, 57a; Shabbos 119b; Sukkah 39a; Sotah 49a), it never mentions what we call kaddish yasom, the kaddish recited by mourners, nor does it recommend or even suggest, anywhere, that a mourner lead the services. The Gemara, also, makes no mention of when kaddish is recited, with the exception of a very cryptic reference to kaddish recited after studying aggadah (see Sotah 49a). A different early source, Masechta Sofrim, mentions recital of kaddish before borchu (10:7) and after musaf (19:12). The fact that the Gemara says nothing about a mourner reciting kaddish or leading services is especially unusual, since the most common source for these practices is an event that predates the Gemara. The Or Zarua, a rishon, records the following story:

Rabbi Akiva once saw a man covered head to toe with soot, carrying on his head the load that one would expect ten men to carry, and running like a horse. Rabbi Akiva stopped the man, and asked him: “Why are you working so hard? If you are a slave and your master works you this hard, I’ll redeem you. If you are so poor that you need to work this hard to support your family, I’ll find you better employment.”

The man replied, “Please do not detain me, lest those appointed over me get angry at me.”

Rabbi Akiva asked him: “Who are you, and what is your story?”

The man answered: “I died, and everyday they send me like this to chop and carry these amounts of wood. When I am finished, they burn me with the wood that I have gathered.”

Rabbi Akiva asked him what his profession was when he was alive, to which he answered that he had been a tax collector (which, in their day, meant someone who purchased from the government the contract to collect taxes) who favored the rich by overtaxing the poor, which the Or Zarua calls “killing the poor.”

Rabbi Akiva: “Have you heard from your overseers whether there is any way to release you from your judgment?”

The man responded: “Please do not detain me, lest my overseers become angry with me. I have heard that there is no solution for me, except for one thing that I cannot do. I was told that if I have a son who would lead the tzibur in the recital of borchu or would recite kaddish so that the tzibur would answer yehei shemei rabba mevorach…, they would release me immediately from this suffering. However, I did not leave any sons, but a pregnant wife, and I have no idea if she gave birth to a male child, and if she did, whether anyone is concerned about teaching him, since I have not a friend left in the world.”

At that moment, Rabbi Akiva accepted upon himself to find whether a son existed and, if indeed he did, to teach him Torah until he could fulfill what was required to save his father. Rabbi Akiva asked the man for his name, his wife’s name, and the name of the town where he had lived. “My name is Akiva, my wife’s name is Shoshniva and I come from Ludkia.”

Rabbi Akiva traveled to Ludkia and asked people if they knew of a former resident, Akiva, the husband of Shoshniva, to which he received the following answer: “Let the bones of that scoundrel be ground to pulp.” When Rabbi Akiva asked about Shoshniva, he was answered: “May any memory of her be erased from the world.” He then inquired about their child, and was answered: “He is uncircumcised — for we were not interested in involving ourselves even to provide him with a bris milah!” Rabbi Akiva immediately began his search for the son, whom he located — it turned out that he was already a young adult. Rabbi Akiva performed a bris milah on him and attempted to teach him Torah, but was unable to do so. For forty days, Rabbi Akiva fasted, praying that the child be able to study Torah, at which time a heavenly voice announced: “Rabbi Akiva, now go and teach him Torah!”

Rabbi Akiva taught him Torah, shma, shmoneh esrei, birchas hamazon, and then brought him to shul in order for him to lead the tzibur by reciting kaddish and borchu, to which the tzibur responded, yehei shemei rabba mevorach le’olam ule’olmei olemaya and “Baruch Hashem hamevorach le’olam va’ed.

At that moment, Akiva, the husband of Shoshniva, was released from his punishment. This Akiva immediately came to Rabbi Akiva in a dream and told him: “May it be Hashem’s will that you eventually reach your eternal rest in Gan Eden — for you have saved me from Gehennom.” (This story is also found, with some variation, in the second chapter of Masechta Kallah Rabasi.)

Other versions

When a different rishon, the Rivash, was asked about this story, he reported that it is not found in the Gemara, but perhaps its origin is in Midrash Rabbah or Midrash Tanchuma. He then quotes a story from the Orchos Chayim similar to that quoted by Or Zarua. In conclusion, the Orchos Chayim emphasizes that, for the twelve months of mourning, a mourner should recite the last kaddish of the davening and maftir on Shabbos and Yom Tov, and lead the services for ma’ariv every motza’ei Shabbos (Shu’t Harivash #115).

A similar story is recorded in an earlier midrashic source, the Tanna Devei Eliyahu, where the protagonist is not Rabbi Akiva, but his rebbe’s rebbe, Rabbi Yochanan ben Zakai (see Rambam, Peirush Hamishnayos, end of the fifth chapter of Sotah). In this version, the man was punished until his son turned five and the son was educated to the point that he could answer borchu in shul (Eliyahu Zuta, Chapter 17). No mention is made of the son reciting kaddish. However, the halachic sources all quote the version of the Or Zarua, in which the protagonist of the story is Rabbi Akiva.

Merits for the deceased

This story serves as the basis for the practice that a mourner lead the services and recite kaddish. Relatively little of this topic is discussed until the time of the Maharil, who was asked the following question:

“Should someone who is uncertain whether his father or mother is still alive recite kaddish?”

To this question, frequent in earlier times when cell phones were not so commonplace, the Maharil replied that he is not required to recite kaddish and he should assume that the person is still alive (Mishnah, Gittin 3:3). Once the parent reaches the age of eighty, one should view it as uncertain whether the parent is still alive. Upon this basis, I am aware of a gadol be’yisrael who had escaped Hitler’s Europe before the war, who began to recite kaddish for his parents once the Nazis invaded the part of Russia where his parents were living.

The Maharil continues that if there are two people in shul, one who is reciting kaddish for a deceased parent, whereas the other is uncertain whether his parents are still alive, that the second person should not recite kaddish. This is because of the halachic principle of ein safek motzi midei vadai, someone who has a questionable claim does not preempt someone who has a definite claim or right – in this instance, the person whose parents might still be alive should not recite kaddish, rather than someone whose parents are known to be deceased. We see from this ruling that the Maharil assumes that kaddish is recited by only one person at a time.

The Maharil explains that, for this reason, he himself did not say kaddish when he was uncertain whether his parents were still alive. He then explains that someone who is not sure whether his parents are still alive and is capable to lead the services properly should lead the services in honor of his parents (Teshuvos Maharil #36).

Conclusions based on the Maharil

We see from the Maharil’s discussion that:

Only one person recites kaddish at a time.

The reason that someone whose parents are alive should not recite mourner’s kaddish is because he is taking the kaddish away from people who are mourners.

If there is no mourner present to lead the services, then the person uncertain if he is a mourner should lead services, if he can do the job properly.

Obligatory versus voluntary kaddish

The Maharil (Shu’t Maharil Hachadoshos #28) was also asked how a minor can recite kaddish if it is a requirement, as only one obligated to fulfill a mitzvah may fulfill a mitzvah on behalf of others. The Maharil answered that the kaddeishim that are recited by the shaliach tzibur as part of davening cannot be recited by minors. These kaddeishim are obligatory and therefore must be recited by an adult, who thereby fulfills the mitzvah on behalf of the entire community. However, non-obligatory kaddeishim, such as kaddish derabbanan and the kaddeishim recited at the end of davening, may be recited by minors. As a curious aside, the Mesechta Sofrim (10:7) explains that these kaddeishim were established primarily as make-up for people who arrived late and missed the kaddeishim that are required.

It is interesting to note that, already in the time of the Maharil, people assumed that the mourner’s kaddeishim are more important than the kaddeishim recited by the chazzan. The Maharil points out that this is incorrect, since the kaddeishim recited by the chazzan are required, and it is greater to perform a mitzvah that one is required to observe than one that is not required (gadol ha’metzuveh ve’oseh mimi she’eino metzuveh ve’oseh). The main merit that one performs for his deceased parent is to recite the kaddeishim that are said by the chazzan as part of davening.

Since minors cannot serve as chazzan, the Maharil considers it a great merit that they receive maftir, which a minor may receive, since they thereby recite borchu in front of the tzibur.

Mourner’s kaddish on weekdays

It appears from the Maharil’s responsum that, prior to his era, kaddish yasom was recited only on Shabbos and Yom Tov. In his day, a new custom had just begun in some communities to recite mourner’s kaddish on weekdays. The reason for the new custom was to enable minors to recite kaddish on a daily basis and to accommodate adults whom the tzibur did not want to lead the services.

Which kaddeishim should be said?

The Maharil writes that although these kaddeishim are not required, but only customary, they should still be recited after a shiur is completed, after bameh madlikin is recited Friday evening, and after pesukim are recited, such as when we recite kaddish after aleinu and the shir shel yom. He rules that someone whose parents are still alive may recite these kaddeishim. However, if his parents do not want him to recite these kaddeishim, he should not.

One at a time

At this point, let us address our opening question: Is it better that each mourner recite only one kaddish, or that all the mourners recite all the kaddeishim?

It appears that, initially, whoever wanted to recite what we call today the mourner’s kaddeishim would do so. Knowing the story of Rabbi Akiva, it became an element of competition, different people trying to chap the mitzvah, which sometimes engendered machlokes and chillul Hashem. To resolve this problem, two approaches developed for dealing with the issue. Among Sefardim, the accepted approach was that anyone who wanted to say kaddish did so, and everyone recited kaddish in unison. This practice is noted and praised by Rav Yaakov Emden in his commentary on the siddur (at the end of Aleinu). Among the Ashkenazim, the approach used was to establish rules of prioritization, whereby one person at a time recited kaddish.

These lists of prioritization are discussed and amplified by many later Ashkenazi authorities, thus implying that, in the Ashkenazi world, the early custom was that only one person recited kaddish at a time. We do not know exactly when the custom began to change, but by the late eighteenth/early nineteenth century, several major Ashkenazi authorities, among them the Chayei Odom (30:7) and the Chasam Sofer (Shu’t Orach Chayim #159; Yoreh Deah #345), discuss a practice whereby kaddish was recited by more than one person simultaneously. About this time, we find another custom in some communities, in which the mourner’s kaddish was said by only one person, but where everyone who chose could join in the recital of a kaddish derabbanan that was recited at the end of the daily morning prayer (see Shu’t Binyan Tziyon #1:122), presumably after the rav taught a shiur in halachah.

Merged community

With this background, we can understand the following mid-nineteenth century responsum. A community had two shullen and several shteiblach. The main shul was in serious disrepair, so they made an agreement to close all the smaller shullen in order to pool resources and invest in one large, beautiful new shul and have no other minyanim. Included in this decision was a new takkanah that all mourners would now recite all the kaddeishim in unison. Subsequently, some individuals claimed that the community should follow the practice of the Rema and the Magen Avraham of prioritizing the recital of kaddish and have one person say it at a time. The community leaders retorted that this would create machlokes, since there was only one shul and many people would like to say more kaddeishim than they can under the proposed system. Apparently, the dispute even involved some fisticuffs. The community sent the shaylah to Rav Ber Oppenheim, the rav and av beis din of Eibenschutz. He felt that the community practice of having all the mourners recite kaddish together should be maintained, but first wrote an extensive letter clarifying his position, which he sent to Rav Yaakov Ettlinger, the premier halachic authority of central Europe at the time. I will refer to Rav Ettlinger by the name he is usually called in yeshiva circles, the Aruch Laneir, the name of his most famous work, the multi-volumed Aruch Laneir commentary on much of Shas. The Aruch Laneir’s reply was subsequently published in his work of responsa called Shu’t Binyan Tziyon.

The Aruch Laneir contended that one should not change the established minhag of Germany and Poland, in practice for more than three hundred years, in which only one person recites kaddish at a time. He further notes that although the Yaavetz had praised the practice that several people recite kaddish in unison, the Yaavetz himself had lived in Altoona, Germany, where the accepted practice was that only one person said kaddish at a time. (The Aruch Laneir notes that he himself was the current rav of Altoona and had been so already for several decades.)

Furthermore, the Aruch Laneir contends that one cannot compare Ashkenazic to Sefardic observance for a practical reason. The Sefardim are accustomed to praying in unison, and therefore, when they say kaddish, everyone exhibits great care to synchronize its recital. When Ashkenazim attempt to recite kaddish in unison, no one hears the kaddeishim. The Aruch Laneir notes that when the kaddish derabbanan is recited by all mourners, the result is a cacophony. He writes that he wishes he could abolish this custom, since, as a result, no one hears or responds appropriately to kaddish.

In conclusion, the Aruch Laneir is adamant that where the custom is that one person at a time recite kaddish, one may not change the practice. On the other hand, we have seen that other authorities cite a custom whereby all the mourners recite kaddish in unison.

Conclusion: How does kaddish work?

The Gemara (Yoma 86a) records that any sin that a person commits in this world, no matter how grievous, will be atoned if the person does teshuvah. This does not mean that the teshuvah accomplishes atonement without any suffering. Some sins are so serious that a person must undergo suffering in this world in addition to performing teshuvah, before he is forgiven.

The greatest sin a person can be guilty of is chillul Hashem. Only teshuvah, suffering, and the individual’s eventual demise will be sufficient to atone for this transgression. Thus, a person’s death may result from his having caused a chillul Hashem.

The Maharal of Prague had a brother, Rav Chayim, who authored a work entitled Sefer Hachayim, in which he writes that most people die because at some point in their life they made a chillul Hashem. The reason a mourner recites kaddish is to use the parent’s death as a reason to create kiddush Hashem – by reciting kaddish – thus, atoning for the original chillul Hashem (Sefer Hachayim, end of chapter 8). May we all merit to create kiddush Hashem in our lives.

The Gadol of Sochatchov-Baltimore, Part I

Question #1: How was a chassidishe gadol instrumental in creating one of the most prominent Litvishe yeshivos?

Question #2: How did the same gadol make his parnasah during the Great Depression?

Question #3: Who was Rav Gifter’s first rebbe, someone with whom he kept an active correspondence for almost thirty years?

All three of these questions revolve around the life of an almost unknown gadol beYisrael named Rav Michael Forschleger, whose 57th yahrzeit falls on the fifteenth of Marcheshvan. Although on several occasions Rav Forschleger was asked to become the Rosh Yeshivah of well-known yeshivos, and he could have been the rav of a very prominent community, he never took a position in either rabbonus or as a Rosh Yeshivah, content to spend his life learning and writing his voluminous chiddushei Torah. Furthermore, through his entire life he refused even to sit in a prominent place (along the mizrach wall) in a yeshivah or shul, but always insisted on sitting together with the regular mispallelim.

However, notwithstanding his reticent nature, he was highly influential in his own, original way, and in every place that he lived there were individuals who asked him questions in learning. Many of these individuals subsequently became great gedolim and talmidei chachamim and viewed themselves as his talmidim for the rest of their lives.

Rav Michael Eliezer Lipman Hakohen Forschleger was born in 5644/1884 in a village named Leubitsch, in southwestern Poland, to a large family of Sochatchover Chassidim. Leubitsch was located about 25 kilometers from Sochatchov, the town whose name was made famous because the great gadol, Rav Avraham of Sochatchov, author of the classic works, Avnei Neizer and Eglei Tal, served as its rav and rebbe. “The Sochatchover,” as Rav Avraham was known, was a disciple, son-in-law, and successor of Rav Mendel of Kotsk, known universally and simply as “The Kotsker,” whose reputation was well established as a fearless leader of chassidus and whose pithy adages have become part of standard Jewish lexicon. The Sochatchover was respected by all talmidei chachamim and gedolei Yisroel, and his halachic works are studied in every beis hamedrash. In the chassidishe world, the Sochatchover was considered the posek of his generation. Completely unknown to the Litvishe yeshivah world is the fact that the Sochatchover was also the author of works on Chassidic thought.

Rav Michael Forschleger made his first pilgrimage to Sochatchov when only six years old. He continued to study in chadarim and with rabbei’im in his hometown until the age of fourteen, when he moved to Sochatchov to become a student in the Sochatchover’s yeshivah. He remained there as a disciple and later a chavrusa of the Sochatchover, until the latter’s passing in 1910. Rav Forschleger continued to be part of the yeshivah in Sochatchov until it disbanded during World War I.

At the age of 18, Rav Michoel married Sarah Reizel Fleischman of Sochatchov. His father-in-law, a devout Sochatchover chassid, was a successful businessman, and intended to support, indefinitely, his new son-in-law and his family, which eventually included seven children.

Already as a young man in Sochatchov, Rav Forschleger was known by the gedolim of that region and time as a mammoth talmid chacham. Among the great gedolim who knew him were: Rav Yosef Engel, author of Gilyonei Hashas and many other works; Rav Yoav Yehoshua Weingarten, author of the Chelkas Yoav and Kaba Dekash’yesa, and Rav Yehosha Kotno, author of Yeshuos Malko, all of them highly respected poskim and authors of well-known classics. On their visits to Sochatchov to consult with the Eglei Tal, they spent their free time “talking in learning” with the younger talmid and chavrusa of the posek hador, who, when not learning with his rebbe, could always be found in his place in the beis hamedrash. Rav Forschleger was, at this time, also the bochein in the Sochatchover Yeshivah, responsible for testing the attainments of the many talmidim, which he did without ever resorting to looking at a Gemara or commentaries, even to check a minor point in the Ran or the Tosafos that they were studying.

Already in Sochatchov, Rav Forschleger was involved in conferring semicha. As recorded by Rav Yitzchak Hoberman, who was later the rav of Raananah, Israel, “In 5671 (1911), in order to receive semicha from Rav Forschleger, I was required to know by heart and explain all of Mesechta Chullin with the commentaries, Rif, Rosh and Ran; and the Tur and the Beis Yosef on all of the topics covered in Mesechta Chullin. I also had to understand thoroughly the Shulchan Aruch with all its commentaries on those topics, and I was expected to present my own novel explanations (chiddushei Torah).”

Although most of Rav Forschleger’s disciples and talmidim from this era, unfortunately, did not survive the Holocaust, well-known talmidim of his from this early era of his life include the aforementioned Rav Hoberman and Rav Avraham Aharon Price of Toronto, who was viewed as the main posek of that illustrious city during his lifetime.

During this time, Rav Forschleger’s parents and siblings had all moved to the United States and settled in Baltimore.

When the Eglei Tal passed away, Rav Forschleger became a chassid of the Eglei Tal’s only son and successor, the Shem Mi’shmuel. The Shem Mi’shmuel requested Rav Forschleger to become the Rosh Yeshivah of the Sochatchover yeshivah, a position that he refused, as would become his approach for the rest of his life. (Decades later, after the passing of Rav Meir Shapiro, Rav Forschleger was asked to become Rosh Yeshiva of Yeshivas Chachmei Lublin, the most prominent yeshivah in Poland, and he turned down that position, also. The fact is that because he turned down that position, he was saved from the Holocaust.)

When the Shem Mi’shmuel passed on in 1916, only six years after his father, Rav Forschleger viewed himself as the chassid of the Shem Mi’shmuel’s son, the Chasdei Dovid. When, decades later, the Chasdei Dovid passed on, he wrote to the Chasdei Dovid’s younger brother, Rav Chanoch of Sochatzev, including a sizable pidyon donation, that he was accepting him as his rebbe. Rav Chanoch responded that since he had studied under Rav Forschleger as a student in the yeshivah in Sochatchov, he considered himself a talmid of Rav Forschleger, not his rebbe.

The Great War

Rav Forschleger and his family were supported completely by his father-in-law until the outbreak of the First World War. The area of Poland in which Sochatchov was located was under Russian rule and was located not far from the German border. When the war broke out, the eastern front between Germany and Russia passed right through this part of Poland, bringing with it financial ruin, starvation, deprivation and disease upon the Jews in the area. Tens of thousands of Jews were left homeless. The city of Sochatchov was completely destroyed and its Jews were scattered, left as destitute, starving refugees. The Shem Mi’shmuel moved first to Lodz, and then to a nearby town, Lezgerge. When he passed away in the middle of the war, they were able to bury him in Sochatchov next to his father, the Eglei Tal. However, the headquarters of the chassidus never returned to Sochatchov. The Shem Mi’shmuel’s son, the Chasdei Dovid, established his court in other Polish towns. The chassidus called Sochatchov still exists today in Eretz Yisroel, headed by descendants of the Shem Mi’shmuel, with batei medrash and yeshivos in the Bayit Vegan neighborhood of Yerushalayim and in Bnei Braq.

The Forschlegers during the war

The chaos of the war completely destroyed Rav Forschleger’s father-in-law’s business, plunging the entire family into extreme poverty. Rav Forschleger moved with his family to Warsaw. During the war years, the Forschleger family was without any structured support, and Rav Forschleger, a gadol baTorah, performed manual labor, while his wife and daughters did sewing work to try to provide some food for the family. Four of Rav Forschleger’s seven children died because of disease or starvation during the war years. When the war finally ended, everything in the area was in ruins.

Notwithstanding the hardships that he endured, whenever time availed itself, Rav Forschleger returned to the local beis medrash, where he learned and taught talmidim. Among his talmidim in Warsaw was Rabbi Alexander Zushia Friedman, the noted author of Mayanah shel Torah, who quotes insights from Rav Forschleger in his work.

Post-war and United States

After the war, Rav Forschleger’s attempts to support his family were unsuccessful, and his father, who had by now established a successful real estate business in Baltimore, implored Rav Forschleger to join him, noting that he could and would support Rav Michael and his family. At first, Rav Michael refused, realizing the spiritual galus that was America in those years; but, eventually, realizing that he had no choice, he accepted the move to America as a gezeirah min hashamayim. In 5881/1921, he, his rebbitzen and their three surviving children, Golda, Rivka and Yechiel Meir, traveled from Le Havre, France, via the S.S. La Touraine for the United States.

Notwithstanding the fact that he was aware of the spiritual desert that awaited him, Rav Forschleger was still shocked by the vast differences in priorities between the Jews of America and what he had left in Europe. Whereas prior to this time, he had always learned in a beis medrash or yeshivah, in Baltimore there was no such thing. He made his house into his beis medrash, investing all his time and energies into continuing his learning and, with time, accumulating seforim. As Rav Gifter described it, the house may have physically been located in Baltimore, but inside it were the Torah citadels of Warsaw. My Rosh Yeshivah, Rav Yaakov Ruderman, described how he was a houseguest of Rav Forschleger in 1932. At that time, Rav Ruderman lived in Cleveland, where his father-in-law, Rav Sheftel Kramer, had a small yeshivah and kollel, and Rav Ruderman was visiting Baltimore to fundraise for his father-in-law’s institution. He said that Rav Forschleger’s command of kol hatorah kulo was unmatched in America. “At the time, America did not have a gadol in his league.”

Whenever Rav Forschleger would find a young man interested in Torah, he would devote all his time and energies to studying with him. Through this method, he developed a relationship with a young man, named Mordechai Gifter, born in Portsmouth, Virginia, whose family had fortuitously moved to Baltimore. Rav Forschleger studied with him until the young, aspiring man decided to attend yeshiva in New York and then in Europe. Rav Gifter maintained correspondence with Rav Forschleger, first from New York, then from Telz, Lithuania, later from Waterbury, Connecticut, and eventually from Cleveland. Whenever Rav Gifter had a question in Torah, whether it was in understanding a difficult passage, a major question to which he had found no answer, or a question in hashkafah, he wrote Rav Forschleger. Rav Forschleger did not save copies of any of this correspondence, but it appears that Rav Gifter saved every reply that he received from Rav Forschleger. I have read some of this recently-published correspondence. Rav Forschleger’s answers, brilliant, insightful and novel, run the gamut of learning, from explanations of passages of Yerushalmi to expositions of kisvei Arizal. Aside from his incredible bekiyus in both Talmudim and their commentaries, Rav Forschleger, himself, was well read in a vast array of machshavah and kabbalistic writings. Rav Gifter often repeated that Rav Forschleger would emphasize “it is not sufficient that one learn Torah. One’s entire essence should become Torah.”

Click here for part II of this article.

 

Sukkah Schach Review

bamboo matQuestion #1: “What are the potential halachic issues encountered with schach mats?”

Question #2: “My aunt, who always takes the family out to eat when she visits, will be in town for Sukkos, and knows that her favorite restaurant has a sukkah for Chol Hamoed. Can we rely on the restaurant’s sukkah?”

Answer: This article, which is a revised version of an interview I provided to Mishpacha magazine a few years ago, covers some of the more common halachic issues and problems one finds regarding Sukkos. Although I have edited the original article somewhat, I have left the interview structure. A pdf of the original article can be found on RabbiKaganoff.com

Mishpacha: Rav Kaganoff, I am very appreciative that you have been able to make time for us. Can you mention what types of halachic issues you have noticed concerning the validity of Sukkos?

RYK: The laws of sukkah are very complicated, and a rav should not assume that his members know how to construct a kosher sukkah, unless he himself has been certain to teach them thoroughly. If the rav has not (yet) taught them properly, then one can certainly assume that there will be many issues concerning the sukkah walls and the schach, and, potentially, questions even where they place the sukkah, since they may build it under trees or overhangs.

How frequent the problems occur will depend on how well a rav has succeeded in educating his membership to the basic requirements of sukkah. There are two obvious ways he can teach them. One is by mentioning aspects of the laws of sukkah whenever he has an opportunity during the weeks before Sukkos – a little bit before his drasha on Shabbos; a little after daily Shacharis and between Mincha and Maariv. Another method is to offer to make “sukkah calls,” just like doctors used to make house calls! The message eventually gets through, and I noticed how, with time, my shul members became very sensitized to the main issues.

Mishpacha: Could you point out the most frequent problems you have found and explain why there are concerns?

RYK: Certainly. Let me first introduce the fundamentals of sukkah construction. A sukkah consists of two basic components, its walls and its roof, which we call the schach; and each has very specific halachic requirements. The schach must be of vegetative material that once grew from the earth but is no longer connected to the earth, is not food, and has not been fashioned in a way that halacha considers it a “vessel” or a “utensil.”

The correct term for these items is that they are mekabeil tumah, susceptible to becoming tamei, should they be in contact with a tamei item. The exact rules defining what qualifies as a utensil are fairly complicated, and it is interesting how much halachic literature is devoted to defining whether such diverse items as arrow shafts, wooden ladders, thread, and straw or reed mats may be used as schach – meaning, are they processed enough to be considered “utensils” for halachic purposes or not. However, a full treatment of this topic is beyond the parameters of this article.

A “Venetian” Sukkah

There are many interesting discussions about the use of other common household items for schach. For example, in 1941 a rav asked Rav Moshe Feinstein whether one can use venetian blinds, at that time made of wood slats attached with cloth, as schach. The inquirer wanted to permit their use, since both the slats and the cloth are made from materials that grow from the ground. Rav Moshe demonstrates from the Talmudic sources that although the wood is basically unprocessed, once it has been attached to the cloth, it is halachically considered a utensil and may not be used as schach.[i]

Walking (under) the Plank

There are also categories of items that the Torah permitted as kosher schach, but were later prohibited by the Sages because of various concerns. For example, wide wooden planks are not utensils and do meet all the other requirements for schach and, therefore, should be acceptable. However, the Sages prohibited using them out of concern that someone might mistakenly assume that his regular wood roof would be satisfactory as a cover for his sukkah.[ii] Although today it is unusual to make a roof out of wood boards, in early generations these were standard roofing materials.

This developed into a halachic controversy not that long ago: May one use wooden slats or laths for schach? I remember seeing wooden slats used commonly as schach material by respected Torah scholars, whereas other, equally knowledgeable Torah scholars took strong exception to using this as schach, invalidating it because slats are used in construction. (Shu”t Yaskil Avdi Volume VI Orach Chayim #20 analyzes both sides of the question. He also quotes a very interesting reason why people prefer using slats to other types of schach. He contends that it is uncommon for them to be insect infested, whereas other forms of schach often have such a problem.)

Metal in the Schach

Many people assume that if one puts any metal into the schach, such as nailing together the schach, the sukkah cannot be used. This is not accurate, although they are correct that one should not use metal to assemble or support the schach, such as by resting the schach on a metal framework. However, the vast majority of halachic authorities conclude that if a sukkah was assembled in a way that its schach is held up by metal, the sukkah may be used. Let me explain.

Supporting the Schach – the Maamid

The Gemara discusses whether the schach must be “held up” — supported by material that could be used for the schach itself. The majority opinion contends that the rules I mentioned above apply only to the schach and not to what supports the schach, which is called the maamid.[iii] According to this opinion, one may use any material at all to support schach, and even having your schach rest directly on steel girders is perfectly fine.[iv]

There is a minority opinion that contends that the rules of schach material apply, also, to what supports the schach. Following this latter approach, one must be careful not to have the schach supported by metal or, for that matter, any other material that would not be kosher schach.

Usually the halacha follows the majority opinion, and following their view, as long as the schach itself is “kosher,” we need not be concerned about what supports the schach. Indeed, most early authorities follow the majority opinion, concluding that there is no halachic problem with supporting the schach with material that would, itself, be invalid schach.[v] Thus, according to them, one could construct a metal framework, rest the schach on it and the sukkah is perfectly kosher. However, there are some early authorities who take the more stringent approach and conclude that one may not support the schach with material that is itself not kosher for schach.[vi]

The conclusion of the later halachic authorities is that although we follow the majority opinion and permit the use of a sukkah whose schach is supported by metal or other invalid-for-schach material, one should not construct a sukkah this way. In other words, one should try to construct a sukkah that is kosher according to all opinions, by supporting the schach with material that itself is valid for schach, but a sukkah constructed ignoring this concern is nevertheless kosher.[vii]

This has many ramifications. For example, you are invited to someone’s house for a meal or Kiddush during Sukkos and discover that their schach is held up by metal or other material that is invalid as schach. Alternatively, you take the family to a recreational area on Chol Hamoed and discover that the sukkah there was erected with the schach held up by a metal frame. You may eat there and enjoy your meal, since the sukkah is kosher, notwithstanding that those in charge should not have assembled the sukkah this way.

The above section elicited the following subsequent inquiry: “It would seem that this halacha applies only regarding the beams that hold up the schach. Meaning, if the metal nails are making sure only that the schach doesn’t slip off the beams, metal may be used. However, if the schach would blow away with a ruach metzuyah, a typical wind, then nailing it down would be forbidden according to the opinion that you should not use metal or the like to hold up the schach.”

Rabbi Kaganoff responds:

“My answer was somewhat ambiguous, and I thank you for bringing it to my attention.

To clarify the matter: the schach should be placed in a way that it is held up and held in place by items which are themselves kosher for schach. If the schach would fall through, or be blown off by a commonly occurring wind, one should not secure it with something that, itself, is not kosher schach. However, if the schach is sufficiently heavy that a common wind would not blow it out of place, but one wants to secure it better so that it does not slip or move, one may secure it even with metal or a different item that is, itself, not kosher schach.”

“Threading” the Schach

I mentioned before that there are items that meet the Torah’s requirements as kosher schach, but were later prohibited by the Sages because of various concerns: The Sages prohibited using combed flax as schach, even though it meets all the Torah requirements[viii] — it grows from the ground and is now disconnected, is not edible and is not a utensil. The early authorities debate why combed flax was banned for schach use, some contending that it was prohibited because it no longer appears like it grew from the ground,[ix] whereas others prohibited its use because it is only one step away from spun flax which is mekabeil tumah,[x] as stated in the Torah, and is therefore invalid because of Torah law.[xi]

Does this dispute concerning why the Sages banned use of unspun flax have any halachic ramifications? Indeed it does, and this affects the kashrus of some varieties of schach mats. Is cotton or hemp thread kosher for schach use? This will depend on why combed but unspun flax was prohibited. If combed flax was prohibited because it no longer appears like it grew from the ground, then cotton or hemp thread or string would similarly be prohibited. On the other hand, if unspun flax was prohibited because someone may errantly use spun flax as schach, then there is no reason to invalidate the use of cotton, hemp or similar thread as schach. Now, it appears highly impractical that anyone would use thread as schach, but but the question whether thread can be used as schach impacts on whether thread can be used to tie together the schach, a topic that became an interesting issue with the development of “schach mats.”

Mishpacha:

How so?

Schach Mats

Let me mention that I may have been the first rabbi ever to provide a hechsher to schach mats. Before that time, different companies were producing these mats, but none of them had a hechsher, although a few responsa had been written concerning whether these mats were valid schach.

There was a very interesting curiosity with the schach mats. The fellow who met me and asked me for a hechsher was manufacturing and selling prefab sukkahs, complete with the schach. He came to me with his planned design for the schach, and I suggested improvements on the design, so that there would be no halachic issues involved, which he followed. I then provided him with a letter of certification on the mats. At the time, the idea of a hechsher on schach mats was very original, and I received inquiries from many rabbonim.

Mishpacha:

What design changes did you make?

RYK:

His sukkah design called for large mats made from split pieces of bamboo tied together with string. Assuming that these were to be made in China, I had a halachic concern. In China, bamboo mats are used as mattresses, which might invalidate a mat made there, even if it was intended for transport and sale elsewhere.[xii] To avoid this problem, I told him to have the factory weave every six inches a piece of bamboo too thick to lie upon comfortably. This way these mats could never be used for sleeping, even by the Chinese, and their status as kosher schach mats was uncompromised.

I also had him make another design correction. The sample had the mats tied together with nylon thread, which I did not want. The problem is that nylon does not grow from the ground, and it is therefore not kosher schach. Thus, the thread holding the mat together was not kosher schach, and this thread has the status of a maamid, that which “supports” the schach, since the mat would fall into the sukkah if it was not tied together.

There was another potential question about these mats, even if they were tied with cotton or hemp string. As I mentioned above, it appears to be dependent on a dispute among authorities whether these threads are valid for use as schach. If they are not valid, then they should not be used to be “maamid” the schach either, since we rule that one should build a sukkah in a way that it is kosher according to all opinions, including those who invalidate maamid that is not kosher for schach.

However, I permitted him to make the sukkah mats and tie them together with cotton thread. Since some authorities consider these strings to be valid schach, the ruling of the late authorities not to use invalid schach material to support the schach should only apply when the supporting material is certainly invalid.[xiii]

There is a second reason to permit cotton string to tie the schach mat. Even if we assume that cotton string is invalid for schach, it is invalid only as a rabbinic stringency, and there are early sources who rule that even those who invalidate maamid that is not kosher schach do so only with schach that the Torah prohibited using, not with schach that was prohibited only as a rabbinic prohibition. To explain:

The halachic authorities cite two reasons to invalidate maamid that is not kosher as schach. Rashi states that using an invalid maamid is equivalent to using invalid schach. According to this approach, the Bach contends that the Torah, itself, invalidated maamid that is not kosher schach. On the other hand, Milchemes Hashem and Ran both state that the use of invalid maamid is only a rabbinic injunction to avoid people erring and using invalid schach. According to the latter approach, one could argue strongly that Chazal only prohibited use of a maamid that would be invalid schach min haTorah, but banning something invalid only miderabbanan would constitute a gezeirah legezeirah, a rabbinic injunction created to avoid violating another rabbinic injunction, something that Chazal are not empowered to do.

Slatted Mats

When the first commercially-produced schach mats reached the market in Israel, there was debate among the halachic authorities whether they could be used. These mats were made from thin pieces of wood tied together with nylon or cotton string. For a variety of reasons, the authorities disagreed on whether these mats could be used as schach. Some were concerned that tying wood pieces together might make the entire piece into one big board and invalidate its use as schach, just as the Sages prohibited use of wide boards, out of concern that someone might think that his regular house roof is valid for a sukkah. The majority of authorities were not concerned about this problem, but were very concerned about mats that used nylon strings to hold them together, considering the string as a maamid.

Some authorities were even concerned with the use of schach mats that used cotton or hemp thread or string to tie them together, being more concerned than I had been when I gave a hechsher to the schach mats. They felt that, ideally, one should not manufacture mats with cotton thread since, according to some opinions, this might constitute a maamid that is not valid schach.[xiv] Others felt that it was perfectly fine to use schach mats tied together with cotton thread.[xv]

By the way, some of today’s schach mats are produced with a much rougher bamboo that could not possibly be used for roofing material, and they are then tied together with a rough natural twine that should avoid any concerns about the thread.

Must I Fumigate my Schach?

Mishpacha:

Talking about schach mats, there has been a large of discussion lately about the problem of insect infestation in schach mats, and people are being given very extensive instructions in how to fumigate their mats.

RYK:

There are some contemporary authorities who feel that people should check their schach carefully for insects, whether their schach is brand new or stored from last year.[xvi] One should note that the Aruch Laneir, in his addenda Tosafos Bikkurim to the end of Shulchan Aruch Orach Chayim Chapter 627, advises not to hang flowers from the schach for decorations, out of concern that the flowers are infested with small insects that, indeed, could fall unnoticed into one’s food.

Others note that since most people spread beautiful white tablecloths on their tables during Sukkos, they would readily notice if insects had fallen from the schach onto the white cloth.

I will continue this article next week, with a discussion about the manufacture of the sukkah walls.

 

[i] Shu”t Igros Moshe, Orach Chayim 1:177

[ii] Gemara Sukkah 14a

[iii] Gemara Sukkah 21b

[iv] See Gemara Sukkah 2a

[v] Few Rishonim (other than those mentioned in the next footnote) quote the issue of maamid, and Terumas Hadeshen (1:91) and Shulchan Aruch in Orach Chayim 630:13 clearly rule that maamid is not a concern.

[vi] Milchemes Hashem and Ran, Sukkah 21b; Bach, Orach Chayim 629.

[vii] Magen Avraham 629:9, whose position is accepted by the majority of later authorities.

[viii] Gemara Sukkah 12b

[ix] Rambam, Hilchos Sukkah 5:4

[x] Tosafos, Sukkah 12b s.v. Ba’anitzei. There are other opinions to explain this Gemara, but they will not affect the halacha that we are discussing.

[xi] Linen thread, which is the same thing as spun flax, will become tamei if tzaraas appears on it, see Vayikra 13:48, and is therefore invalid schach since this qualifies it as a davar hamekabeil tumah.

[xii] See Gemara Sukkah 19b and the Rosh ad loc.

[xiv] Shu”t Shevet Halevi 6:74; Shu”t Yeshuas Moshe 3:52

[xv] Shu”t Yechaveh Daas 1:64

[xvi]Bedikas Hamazon Kahalacha by Rabbi Moshe Vaya, Volume III pages 784-786