You Can’t Take It with You — Moving and Removing Mezuzos

YOU CAN’T TAKE IT WITH YOU!

Question #1: “We are moving residences, and I understand that I must leave the mezuzos in my old home. However, they are beautiful, mehudar mezuzos that I would like to use in my new dwelling. Is there any way that I can take these mezuzos with me?”

Question #2: “My landlord is not Jewish, but this is a neighborhood where only frum Jews are moving in. Do I remove my mezuzos when I leave?”

Question #3: As I was preparing this article, someone called me with the following actual shaylah:

“We will be spending a few days with my ailing father who lives in Israel in an assisted living facility. We can stay in an apartment in his building, but there are no mezuzos on the doors. I know that in Israel one must place a mezuzah on one’s residence, even if one stays only overnight. I can borrow mezuzos for our stay; however, may I remove them when we depart?”

Answer: The obligation of placing mezuzos is incumbent on the person living in the house; nevertheless, when vacating the premises, one is usually required to leave the mezuzos in place. If one wants money for the mezuzos that are being left behind, the new resident is required to pay for them (Rama, Yoreh Deah 291:2).

In explaining these laws, the Gemara teaches:

When a Jew rents a house to a fellow Jew, the tenant is responsible to affix the mezuzos. However, when the tenant vacates, he may not remove them. On the other hand, a Jew who rents a residence from a gentile removes the mezuzos when he leaves (Bava Metzia 102a).

The Gemara subsequently describes a horrible calamity that befell someone who removed his mezuzos when he was prohibited from doing so. (If you are anxious to know what happened, I refer you to the Gemara.) Thus, removing mezuzos involves not only a halachic violation, but also a significant safety concern (Tzavaas Rabbi Yehudah HaChasid,addendum #7).

BUT WHY NOT?

It is difficult to understand why halachah requires one to leave the mezuzah behind: When a resident vacates a dwelling, he has no obligation to guarantee that mezuzos remain on its doorways. So why can’t he take his mezuzos with him?

There are actually two reasons, each requiring its own introduction, why one may not remove the mezuzos.

APPROACH #1: DISDAIN OF MITZVOS – BIZUY MITZVAH

The first approach derives from the concept of bizuy mitzvah, treating a mitzvah object inappropriately: Removing the mezuzah is considered improper abandonment of a mitzvah object.

But if this is so, shouldn’t it apply to other mitzvos as well? For example, may I remove tzitzis from a garment without due cause?

REMOVING TZITZIS FROM A GARMENT

The Gemara debates whether one may remove the tzitzis of one garment to tie them onto another four-cornered garment. The Amora Rav prohibits moving tzitzis from one garment to another, contending that this is bizuy mitzvah. His contemporary, Shmuel, permits moving the tzitzis from one garment to another, since they are still utilized for a mitzvah (Shabbos 22a). Both Rav and Shmuel prohibit removing the tzitzis when he will not use them on another garment as an act of bizuy mitzvah (She’iltos, Shlach; Shulchan Aruch, Orach Chayim 15:1). That is, removing tzitzis from a garment without placing them onto another garment is considered disrespectful. We follow Shmuel’s ruling, and therefore one may remove tzitzis from one garment to place them on another. One may also replace tzitzis with more mehudar ones, even if he will not use the removed tzitzis, since upgrading to a higher standard demonstrates increased respect for the mitzvah, the exact opposite of bizuy mitzvah (Taz, Orach Chayim 15:2).

REMOVING THE MEZUZAH

Just as Shmuel ruled that one may remove tzitzis from one garment to place them on another, but one may not remove them if one is not planning to place them now onto another garment, we can now appreciate why one may not remove a mezuzah upon vacating a residence, since this demonstrates disrespect for the mezuzah that is being forcibly retired from its role (She’iltos, Parshas Shlach; Tosafos, Shabbos 22a, s.v. Rav; Ritva, Bava Metzia 102a). (It would seem that one can derive from this that it is prohibited to forcibly retire someone from a position, or that one should strongly reconsider laying off employees, but we will leave this topic for a different time.) We will soon discuss whether the prohibition applies, even when one intends to use the mezuzah elsewhere.

By the way, the authorities dispute whether the new tenant, entering a house with mezuzos already on the door, recites a bracha, Baruch Atta Hashem Elokeinu Melech haolam asher kideshanu bemitzvosav vetzivanu ladur babayis sheyesh bo mezuzah (Magen Avraham 19:1; Shu”t Rabbi Akiva Eiger, end of #9). The reason why this bracha sounds so unfamiliar is that it refers not to placement of a mezuzah on the doorpost, but to entering a new dwelling where the mezuzah is already present. In practice, most late authorities follow the ruling of the Chida that one does not recite a bracha on a mitzvah if one is not actively performing the mitzvah (Birkei Yosef, Orach Chayim 19:2).

MOVING THE MEZUZAH FROM ONE HOUSE TO ANOTHER

At this point, we should note an important factor. If the only reason that one may not remove the mezuzah is due to bizuy mitzvah, is one permitted to remove a mezuzah from the “old” building to install it in one’s new residence? Indeed, those authorities who prohibit removing the mezuzah only because of bizuy mitzvah explain that one may remove a mezuzah from one building to install it in a new place (She’iltos, Shlach; Ritva, Bava Metzia 102a).

APPROACH #2: DIVINE PROTECTION

Most authorities explain that there is an additional reason, unique to mezuzah, why one must leave the mezuzah behind even if one wants to use it elsewhere. Although the primary reason a Jew observes any mitzvah is to fulfill Hashem’scommandment, the mitzvah of mezuzah has an additional benefit because it protects our homes and our families from mishap. Removing the mezuzah eliminates this Divine shield, exposing one to tragedy and misfortune (Tosafos, Bava Metzia 101b s.v. lo; Shitah Mekubetzes, Menachos 41b, note 24; Tosafos, Shabbos 22a s.v. Rav in his second answer). Because of this, there is a widespread practice to check one’s mezuzos if, G-d forbid, one is experiencing difficulties in one’s home, since these problems might indicate that the mezuzos are not providing the adequate protection that they should.

This approach understands that even though someone vacating a house is no longer responsible for there being mezuzos on the doors, removing them reduces the Divine protection on the domicile for the next Jewish person moving in. We now comprehend why removing the mezuzah may expose someone to danger, as the Gemara records.

If the property belongs to a gentile, however, one may, and according to many authorities must, remove the mezuzah, since removing the mezuzah is not depriving it of fulfilling a mitzvah, and the protection provided is only for Jews. Similarly, one may remove tzitzis from a garment that will no longer be used to fulfill a mitzvah (Rama, Orach Chayim 15:1 and Magen Avraham ad loc.).

HOW DO WE RULE?

The accepted halachic practice recognizes both concerns, forbidding one from removing the mezuzah to a new location. However, in an extenuating circumstance where someone is moving to a new residence and has no access to a kosher mezuzah, one may rely on the first opinion and take the mezuzah with him (Birkei Yosef, Yoreh Deah 291:2).

YOU CAN TAKE IT WITH YOU

Despite our conclusion that one should generally not remove the mezuzos when vacating a house, there are instances when one is required to do so. As I mentioned above, the Gemara notes that one who rents from a gentile should remove the mezuzos upon leaving (Bava Metzia 102a). The authorities dispute whether this is simply permission to remove the mezuzah, or whether one is required to do so. Rav Yaakov Emden (Shaylas Yaavetz 2:121) rules that one must remove the mezuzah, out of concern that the gentile will treat it inappropriately, whereas the Aruch HaShulchan (Yoreh Deah 291:3) implies that it is permitted, but not actually required, to remove the mezuzah under such circumstances.

CHANGING OWNERSHIP

What is the halachah if a Jew vacates a residence that he was renting from a gentile, but a different Jew is moving in? May/should the first Jew remove the mezuzah when he leaves, since the owner of the building is non-Jewish, or must he leave the mezuzah for the new Jewish resident?

Rav Yaakov Emden discusses a similar case: A Jew was renting a house from a gentile who then sold the house to a different Jew. The tenant will be moving out before the change of ownership takes effect. Should he remove the mezuzah before he leaves, since the house is still owned by a gentile, or is this forbidden, since a Jew will soon be acquiring the house and moving in? On the one hand, we do not want to leave the house mezuzah-less, yet there is a concern that the gentile owner may deface or steal the mezuzah before the Jew moves in.

Rav Emden rules that the tenant should remove the mezuzah before he vacates, out of concern that the gentile may treat the mezuzah inappropriately. He also quotes the Maharil, who requires removing the mezuzah because one may not give a mezuzah to a gentile. However, if the gentile’s sales contract with the purchasing Jew specifies that the mezuzah is included, the tenant should leave the mezuzah (Shaylas Yaavetz 2:121).

GENTILE LANDLORD, JEWISH TENANT

Rav Emden’s case is when the gentile has sold the property to a new Jewish owner. What is the halachah if the property remains the gentile’s, but he usually rents to Jews? Should one leave the mezuzah for the next Jewish occupant or not?

Beis Lechem Yehudah (Yoreh Deah 291:1) rules that one should remove the mezuzos, even if the gentile landlord usually rents to Jews, as long as the next Jewish tenant is not moving in immediately.

We can now answer one of our opening questions: “My landlord is not Jewish, but this is a neighborhood where only frum Jews are moving in. Do I remove my mezuzos when I leave?”

This depends. If a new tenant is moving in immediately, one should leave the mezuzos for him. However, if there will be a time lag before he moves in, one should remove the mezuzos — out of concern that, in the interim, they may be abused.

There are other instances when one is required to remove the mezuzah and, accordingly, no calamity will result from doing so. If there is concern that someone may damage or deface a mezuzah that is left behind, one must remove the mezuzah. For example, if the residence will be painted, the mezuzos must be removed to prevent their becoming invalidated. Even if the landlord is Jewish and the new tenant is also Jewish, if the apartment will be painted between residents, the vacating tenant should remove the mezuzos to save them from damage, which is certainly bizuy mitzvah, and no harm will befall him for doing so. Once he has removed the mezuzos for a legitimate reason, he is not required to return them. The new tenant is now responsible to affix new mezuzos.

Similarly, if there is concern that the mezuzah will be stolen or otherwise abused, one should remove it.

NEW RESIDENT HAS HIS OWN MEZUZOS

As I mentioned earlier, although the first resident is required to leave his mezuzos behind, he is technically permitted to charge the new tenant for them. What is the halachah if the new tenant wants to install his own mezuzos rather than purchase or receive gratis those of the previous tenant? Does this present any halachic problem, and is there any basis for a safety concern in this instance?

The contemporary authorities assume that if the new resident wants to install his own mezuzos, he may remove the “old” mezuzos owned by the previous tenant and put up his own. In this instance, one is not leaving the house unprotected, since new mezuzos are immediately placed on the doorposts. Based on this ruling, there is a common practice of having the new tenant, or his agent, remove the old mezuzos and install the new ones.

One should be careful to remove the “old” mezuzah before installing the new one, since having two mezuzos on one’s door violates the prohibition of adding to the Torah’s mitzvos, bal tosif (Pischei Teshuvah 291:2). Just as one may not add a fifth parsha to one’s tefillin when the Torah requires four, and just as a kohen may not add a fourth bracha to thethree brachos of duchening, so may one not add a second mezuzah to the doorpost when the Torah requires only one. For the same reason, one who moves to a house that has an old, painted over mezuzah on the door must remove that mezuzah, even if it is probably invalid, and not just affix a kosher mezuzah alongside it.

MEZUZAH SWITCH

At this point, we can now address our first question:

“We are moving residences, and I understand that I must leave the mezuzos in my old home. However, they are beautiful, mehudar mezuzos that I would like to use in my new dwelling. Is there any way that I can take these mezuzos with me?”

The answer: One may remove the nice mezuzos one has on his door and replace them with kosher, non-mehudar mezuzos. Since one is leaving the house with a kosher mezuzah, this suffices to protect the house (Da’as Kedoshim, Yoreh Deah 291:1).

At this point, we can discuss our third question, concerning someone using a house in Eretz Yisrael who borrowed a mezuzah. It is indeed true that Chazal required a person to place a mezuzah on his doorpost in Israel, even if he stays only overnight. However, may he remove the mezuzah when he vacates?

In this case, there is an interesting complication, since the person borrowed a mezuzah and must return it. Assuming that the landlord and/or future residents are/will be Jewish, he cannot leave the house without a mezuzah. He can, of course, resolve the problem by putting up replacement mezuzos for the borrowed ones, but this is a solution that he wants to avoid.

The problem was resolved by contacting the management of the building. The management was interested in having a mezuzah on the door of the residence and took care of the matter.

MEZUZAH REWARDS

Aside from fulfilling a mitzvah commanded by Hashem, the mitzvah of mezuzah serves to remind us constantly of His presence, every time we enter and exit our houses. In addition, the Gemara teaches that someone who is meticulous in his observance of the laws of mezuzah will merit acquiring a nice home (Shabbos 23b). We thus see that care in observing this mitzvah not only protects one’s family against any calamity, but also rewards one with a beautiful domicile. May we all be zocheh to be careful, always, in our observance of the laws of mezuzah and the other mitzvos, and reap all the rewards, both material and spiritual, for doing so!




What Happens When We Do Something Wrong?

Since the Aseres Hadibros which include the laws of Shabbos are in Parshas Va’eschanan, we have an opportunity to discuss what happens when we do something wrong on Shabbos.

Question #1: Cholent caper

Shimon looks rather sheepish when he asks this shaylah on Shabbos morning: During the night, he tasted the cholent and decided it needed some extra spices. Without thinking, he added some pepper and garlic powder, which is clearly an act of desecrating Shabbos. Can the cholent be eaten, or is it prohibited to benefit from this melachah?

Question #2: Bad advice

“My main mutual fund has performed wonderfully over time and I am very satisfied with it. However, I recently read a transcript in which the fund manager, who is probably Jewish, referred to investment discussions with his staff on Friday night. I am concerned that I may be benefiting from chillul Shabbos that he performs in the course of researching venture possibilities for the fund. Must I pull my money out and look for another investment vehicle?”

Question #3: The unrepentant knitter

Yehudis seeks guidance for a real predicament: “I have a non-observant relative who loves to knit and is presently knitting a baby blanket for my soon-to-be. I am certain that she is doing some of this on Shabbos. If we do not use her blanket she will be very upset — and she will notice if we fail to use it. What may we do to avoid antagonizing her?”

Each of these actual shaylos involves the same halachic issue: May one benefit from work performed on Shabbos? Although we certainly discourage any type of desecration of Shabbos, the current question is whether something produced on Shabbos may be used afterwards. This question is discussed in the Gemara in several places, which cites a three-way dispute among tanna’im concerning food cooked by a Jew on Shabbos. Each of the three opinions focuses on a different issue. The question in practical halachah is whether or not we are concerned about these reasons and to what extent. Briefly put, these are the three issues:

I. Intrinsically prohibited

Some contend that food cooked in violation of Shabbos becomes a substance that we are prohibited to eat min hatorah. Those who rule this way maintain that food cooked on Shabbos is non-kosher.

II. The sinner goes to the penalty box!

Others maintain that Chazal penalized a person who intentionally desecrated Shabbos by banning that individual from benefiting from his misdeed. Although the food is still considered kosher, there are restrictions as to who may eat it and when.

III. Defer benefit!

A third opinion contends that , to avoid profiting from the sin performed, one cannot benefit from an item created through Shabbos desecration until after Shabbos.

Let me explain the differences among these three approaches.

I. Intrinsically prohibited

Rabbi Yochanan Hasandlar contends that not only does the Torah forbid desecrating Shabbos, but it also bans benefiting from something created in defiance of Shabbos. For example, food cooked on Shabbos is forbidden and will never become permitted for use by anyone. If this food subsequently became mixed into otherwise kosher food, the same laws apply as any situation when non-kosher became mixed into kosher food.

However, Rabbi Yochanan Hasandlar prohibits the food only when it was produced in intentional desecration of Shabbos. An item created through negligent violation of Shabbos (shogeig) is treated more leniently.

II. The sinner goes to the penalty box!

Rabbi Yehudah follows a more lenient approach, prohibiting the sinner from using items made on Shabbos as a penalty created by the Sages, but not because the food is intrinsically non-kosher min hatorah. Chazal created this penalty so that the perpetrator should not benefit from his misdeed. For this reason, Rabbi Yehudah prohibits the item permanently but only to the person who desecrated Shabbos. Several authorities rule that this prohibition applies also to the members of his household (Graz, 253:24; Kaf Hachayim 318:11). Furthermore, the equipment used to cook the food on Shabbos must be koshered before it may be used again, since it has absorbed taste that is forbidden to him (Magen Avraham 318:1, quoting Rashba) and his household (according to the Graz and Kaf Hachayim). Other people may use the item after Shabbos is over.

Negligent desecration

Thus far, we have discussed what happens when something was prepared in intentional defilement of Shabbos. However, what is the halachah if someone violated Shabbos Shabbos unintentionally (beshogeig)?

According to Rabbi Yehudah, one may eat the food after Shabbos is over. If the sin was performed unintentionally, no distinction is made between the person who violated Shabbos and anyone else — we do not penalize the perpetrator after Shabbos is over. But Rabbi Yehudah requires that we defer the benefit until after Shabbos.

III. Deferring use

The third opinion, Rabbi Meir, is more lenient. He agrees that no one may benefit from an item created through intentional desecration of Shabbos on Shabbos itself. However, once Shabbos is over, the item may be used. Furthermore, only something produced in intentional defiance of Shabbos may not be used. The results of shogeig,negligent, violation of Shabbos are permitted for use and even for consumption. Although violating Shabbos is a most severe desecration, the Torah did not ban benefiting from the crime. The Sages did not prohibit a product that results from a misdeed, but merely postponed using it until after Shabbos so as not to benefit from the sin, and this, only when the sin was performed intentionally.

To review, Rabbi Meir makes no distinction between the violator himself and others. He also contends that there is no prohibition at all against using an item negligently prepared on Shabbos. Thus, Rabbi Meir and Rabbi Yehudah are in dispute concerning two key points:

(1) Whether or not the results of negligent violation of Shabbos are permitted. Rabbi Meir permits their use immediately whereas Rabbi Yehudah prohibits their use until Shabbos is over.

(2) Whether or not food prepared in intentional desecration of Shabbos may be used after Shabbos by the desecrator. Rabbi Meir permits their use, whereas Rabbi Yehudah prohibits it.

How do we rule?

Most halachic authorities rule according to Rabbi Yehudah, although there are several who follow the more lenient opinion of Rabbi Meir (Gra, Orach Chayim 318). (Notably, the Rosh, in Bava Kamma 7:6, rules according to the stricter approach of Rabbi Yochanan Hasandlar; however, in Chullin 1:18 he seems to conclude otherwise.)

What is the legal definition of “negligent”?

Before we rule on our opening cases, we need to know what defines whether an activity is considered shogeig (negligent) or whether it qualifies as meizid (intentional).

Negligent violation (shogeig) includes someone who forgot or was unaware that it is Shabbos, or forgot or was unaware that the activity being performed is forbidden on Shabbos. Someone who was told in error that the particular activity is permitted is also considered shogeig. Even if a competent scholar was asked and he erred and permitted something forbidden, the action is still considered a violation and one may not benefit from the results until Shabbos is over (Magen Avraham 318:3). As I mentioned above, in any of these situations, one may use the item after Shabbos ends.

Example:

Devorah discovered that she prepared food on Shabbos in a way that the Torah prohibits. Since she was unaware of the halachah, this is an act of shogeig, and the food may be eaten after Shabbos, but not on Shabbos, according to Rabbi Yehudah.

An Intended Beneficiary

As I explained above, Rabbi Yehudah maintains that a person who desecrated Shabbos intentionally may never benefit from the result, while others may benefit after Shabbos. Is the halachah different when the item was made to benefit someone specific? For example, if a Jew cooked for a guest on Shabbos, may the guest eat the food after Shabbos is over?

Why should the intended beneficiary be treated more stringently than anyone else?

To understand the background behind this question, we need to clarify some related issues. I mentioned above that Rabbi Yehudah prohibits the sinner from ever using an item that resulted from his desecration. This rule is not limited to Shabbos, but also applies to other areas of halachah. Here is an example:

Ein mevatelin issur lechatchilah

Although prohibited substances that spill into food are sometimes nullified,this applies only when the mixture occurred inadvertently. One may not deliberately add prohibited food to kosher food in order to nullify the banned substance. This prohibition is called ein mevatelin issur lechatchilah. Bitul is something that happens after the fact and cannot serve as a premeditated solution.

What happens if someone intentionally added a proscribed ingredient? Is the food now prohibited?

Indeed, the person who added the forbidden component may not consume it. This law is derived from the rules of Shabbos. Just as the intentional Shabbos desecrator may not benefit from his misdeed, so, too, the deliberate contaminator of kosher food may not consume the mixture (Gittin 54b). Therefore, if the CIA (Cashrus Intelligence Agency) detects the misdeed, the perpetrator will be banned from benefiting from the resultant product.

Already Added

Because of the above rule, if an amount of non-kosher food too great to be nullified fell into food, one may not add extra kosher food or liquid in order to nullify the prohibited substance. This act is also prohibited under the heading of ein mevatelin issur lechatchilah. Here, too, someone who knows that this act is prohibited and intentionally added permitted food to nullify the forbidden component may not consume it because he violated ein mevatelin issur lechatchilah (Shulchan Aruch, Yoreh Deah 99:5). However, if he did this negligently, he may use the finished product.

All these rulings derive from the laws of Shabbos that we discussed before. The person who added the product intentionally, knowing that this is prohibited, is comparable to someone who knowingly desecrates Shabbos, and may not benefit from his misdeed. However, the person who was unaware that his act is prohibited qualifies as a shogeig and may use the product. (Note that although on Shabbos we sometimes make a distinction between using the food on Shabbos and using it after Shabbos, no such distinction applies in the case of ein mevatelin issur lechatchilah.)

The following case explains this last situation more clearly. Mrs. Smallminded discovers that she inadvertently added a non-kosher ingredient to the huge pot of soup she is preparing for a family simcha. Realizing her error, she calls her rav, who concludes that the ratio of kosher to non-kosher in her soup is insufficient and that therefore the soup is not kosher. Unwilling to discard all her efforts and ingredients, Mrs. Smallminded adds water to the soup until there is sufficient kosher product to nullify the non-kosher ingredients. As mentioned above, this act is prohibited as a violation of the rule ein mevatelin issur lechatchilah. If Mrs. Smallminded was unaware that she was forbidden to add water, she qualifies as shogeig and may eat the soup. However, if she was aware that this was prohibited and she intentionally ignored the halachah, she may not eat the food, for this would allow her to benefit from her deliberate misdeed.

What about Her Guests?

Let us assume that Mrs. Smallminded realized that she was not allowed to add water, but did so anyway. Later, she has pangs of conscience about her misdeed. As I mentioned above, Mrs. Smallminded may not eat the soup. What about her guests? May they eat the soup because the non-kosher ingredient is indeed bateil, or are they also prohibited from eating it?

The halachah is that the intended beneficiaries may not eat the soup. Since all of Mrs. Smallminded’s family members and guests are intended beneficiaries, none of them may eat the soup (Rashba, Toras HaBayis 4:3, page 32; Tur Yoreh Deah 99). However, some authorities contend that this applies only if those people knew that the water was being mixed in for their benefit, as I will explain.

Not Aware of the Bitul

This leads us to a new question: What if the intended beneficiaries did not know that the item was being added for their benefit?

Some authorities rule that in this last situation the intended beneficiary may use the product (Maharshal; Taz 99:10). However, many authorities conclude that they are still prohibited from using it. Furthermore, most rule that if a store added prohibited substances to kosher food in order to sell it to Jewish customers, no Jewish customers may consume the finished product since they are all considered intended beneficiaries (Shu’t Rivash #498; Rabbi Akiva Eiger). According to this, Mrs. Smallminded’s guests would be forbidden from eating her soup even though they were unaware of what she did.

You might ask, why are they being penalized from eating the luscious soup when they were completely unaware of her intent to violate the law? After all, not only did they not intentionally violate any laws, they did not even know what Mrs. Smallminded was doing in the kitchen!

The Overambitious Butcher

It is easiest to explain this ruling by examining a case discussed by earlier halachic authorities. A town butcher had mastered the proper skills to be a qualified shocheit, but had never passed the next step – being licensed to be a bodeik, the person who checks after the shechitah to ascertain that the animal contains no imperfections that render it tereifah. Nevertheless, this butcher-shocheit performed the shechitah and the bedikah himself, thereby overextending his “license.” The shaylah was whether the meat could be eaten anyway, based on the halachah that if one cannot perform bedikah the animal is ruled kosher, since most animals are kosher.

The posek of the generation, the Rivash, ruled that no one may eat the meat. Although it is indeed true that if a bedikah cannot be performed the meat is kosher, one may not intentionally forgo the bedikah. The Rivash forbids the meat of the above-mentioned butcher-shocheit because of the principle of ein mevatelin issur lechatchilah, and rules that no one may use the meat, since all of the butcher’s customers are intended beneficiaries of his violation. This is true even though the customers certainly did not want the butcher to forgo a proper bedikah. We see that when prohibited food is prepared for someone else, the authorities forbid the intended beneficiary from eating the food, even when he did not want the bitul to transpire.

An Intended Shabbos Beneficiary

Having established that mixing food in violation of halachah prohibits the resultant product, we now need to determine the law on Shabbos. Does halachah ban the intended beneficiary from benefiting from the item produced on Shabbos, even if he/she did not want the item prepared on Shabbos?

The late halachic authorities dispute this question, some contending that since one cannot use the item until Shabbos is over, there is less reason to prohibit the intended beneficiary (Pri Megadim, Eishel Avraham 318:2, based on Beis Yosef, Yoreh Deah 99). Others conclude that food cooked on Shabbos for customers remains prohibited forever since they are all intended beneficiaries (Shu’t Ksav Sofer, Orach Chayim #50). If this question happens to you, I refer you to your rav or posek.

Answering Our Shaylos

At this point, let us try to resolve the different shaylos that I mentioned before.

Question #1: Cholent caper

Shimon negligently added spices to the cholent on Shabbos. Can his family still eat the cholent, or is it prohibited due to the prohibition of benefiting from melachah performed on Shabbos?

According to most authorities, the halachah follows Rabbi Yehudah and therefore this cholent would be prohibited, but only until Shabbos is over. However, some late authorities rule that, under extenuating circumstances, one may rely on those who accept Rabbi Meir’s more lenient approach (Mishnah Berurah 318:7). According to this approach, one could permit even Shimon to enjoy his cholent on Shabbos if there is not enough ready food for the family.

Question #2: Bad advice

Our second question was: “My main mutual fund has performed wonderfully over time and I am very satisfied with it. However, I recently read a transcript in which the fund manager, who is probably Jewish, referred to investment discussions with his staff on Friday night. I am concerned that I may be benefiting from chillul Shabbos that he performs in the course of researching venture possibilities for the fund. Must I pull my money out and look for another investment vehicle?”

Although we do not want to encourage anyone to desecrate Shabbos, there is, strictly speaking, no violation incurred in benefiting from this investment for an interesting reason. The prohibition of using something made on Shabbos applies only to an item that was actually created or transformed because of the desecration of Shabbos. Thus, the question applies to food made edible or clothing manufactured because of the Shabbos desecration. However, the fund manager’s desecrating Shabbos does not create any object, so that even the strictest opinion of Rabbi Yochanan Hasandlar would not prohibit the money earned by the fund.

Notwithstanding that there is no halachic concern here, one is still entitled to discuss what is really a hashkafah question: Do I want to make profit that results, albeit only partly, from a Jew being mechaleil Shabbos? After all, Hashem provides livelihood and perhaps I should steer away from building my nest egg from someone’s chillul Shabbos. I refer our readers who might have such a question to their own rav.

Question #3: The unrepentant knitter

Now let us now examine our third case above: Yehudis has a non-observant family member who has knit a baby blanket on Shabbos. May Yehudis use the blanket?

Assuming we follow Rabbi Yehudah’s approach, the main question here is whether an intended beneficiary is prohibited forever from use of an item made in violation of Shabbos. Since most later authorities permit this benefit, I ruled that she could use the blanket.

Conclusion

Observing Shabbos is our acknowledgement that Hashem created everything and brought the Creation of the world to conclusion on the seventh day. Shabbos is His statement that His creating the world was complete, and our observing Shabbos recognizes this. When we bring our workweek to a close, we thereby note Hashem’s supremacy and the message of Shabbos. Unfortunately, not all our brethren understand this message, thus leading to many of the shaylos that we discussed in this article. We hope and pray that all Jews soon understand the full beauty of Shabbos.

 




Preparing Food on Yom Tov

The Torah teaches that although most melachos are forbidden on Yom Tov, cooking and most other food preparation are permitted. Nevertheless, some types of food preparation are prohibited on Yom Tov, such as catching fish, picking fruit, and squeezing juice. Why are these activities different from cooking, kneading, and the other food preparatory activities that are permitted on Yom Tov?

To understand the answer to this question correctly, we must imagine ourselves preparing a meal in the days of Chazal: Refrigeration and most modern methods of preserving food do not exist, and preparing a festive meal requires baking and cooking on the day of the occasion. Although it may seem strange to us, even shechitah and soaking and salting the meat are performed the day the meal is served. Thus, the Torah permitted any activity necessary to prepare a meal that will be served on Yom Tov. It is even permitted to skin the hide off an animal that has been shechted on Yom Tov since one cannot remove the meat properly without first removing the hide.

However, some food preparatory activities are usually performed in advance of the day the meal will be served. Even in earlier days, one did not begin preparing the day’s meal by catching fish. One who planned fish for dinner would catch or purchase the fish the day before, and then leave the fish in water until it was time to prepare it. Therefore, it is forbidden to fish on Yom Tov, even if one intends to fry fish for the day’s meal.

Similarly, fruits are usually picked and squeezed when they ripen, and then the juice or oil is stored. Thus, picking and squeezing fruit is not permitted on Yom Tov, even though they are steps in the preparation of food. Even picking or squeezing a small amount of fruit is prohibited, since usually these activities are performed in quantity and stored for a longer period of time.

In a like manner, the day one prepares a meal is not the time to begin grinding the wheat into flour, and it is certainly not the time to harvest the grain or to thresh it. At an earlier date, one would grind the grain into flour and then store it for subsequent use. However, someone serving fresh bread or pastry prepares the dough the day the meal is to be served. Therefore, it is permitted to mix flour and water on Yom Tov. This subject leads us to a more extensive discussion about the melacha of kneading on Yom Tov.

Kneading on Yom Tov

One of the thirty-nine melachos of Shabbos is kneading, which includes any instance of combining fine particles together with a liquid until they stick together. Thus, one may not mix grains or powders with liquid to create an edible cereal on Shabbos. However, since one may knead dough on Yom Tov, all kneading is permitted on Yom Tov. Thus, one may prepare oatmeal, pudding, or baby cereals on Yom Tov the same way these foods would be prepared on a weekday. (One may not mix these foods in the usual fashion on Shabbos.)

Separating challah

When one kneads dough on Yom Tov, the challah portion is separated (assuming that one kneaded a sufficient quantity of dough), even though separating terumah and maaser is not permitted on Yom Tov. However, one does not burn the separated challah portion on Yom Tov. Instead, one sets the portion aside to be burnt after Yom Tov (Shulchan Aruch Orach Chayim 506:4).

If one baked before Shabbos or Yom Tov, one may not separate the challah portion on Shabbos or Yom Tov. What happens if you realize on Shabbos or Yom Tov that you forgot to separate challah? The answer to this shaylah depends on whether the dough was kneaded in Eretz Yisroel or in chutz la’aretz. If the dough was kneaded in Eretz Yisroel, then there is no solution but to leave the bread uneaten until after Shabbos or Yom Tov, and then separate the challah portion. However, if this dough was kneaded in chutz la’aretz, there is a different solution. One may eat the bread on Shabbos or Yom Tov as long as one makes sure that some of the bread remains until after Shabbos or Yom Tov. After Shabbos or Yom Tov, one separates the challah portion from the leftover bread. This separating “after the fact” is sufficient to fulfill the mitzvah of separating challah in a dough produced in chutz la’aretz (Rama 506:3). The reason for this distinction requires a bit of explanation.

Min HaTorah there is a requirement to separate challah only on dough that is made in Eretz Yisroel. (In actuality, the requirement is min hatorah only when most Jews live in Eretz Yisroel.)  The requirement to separate challah on dough mixed in chutz la’aretz is out of concern that Jews living in chutz la’aretz should not forget the mitzvah to separate challah. However, since the mitzvah is only miderabbanan, Chazal allowed the leniency of separating the challah portion “after the fact” (Shulchan Aruch Yoreh Deah 322:2-3).

Grating, grinding, and mashing on Yom Tov

The melacha of grinding is different from the melachos previously discussed. Some foods are ground as you prepare the meal, whereas others are ground well before the meal is prepared. For example, when preparing a kugel, the potatoes are grated when you prepare the meal; similarly, a gourmet chef might crush fresh pepper and other spices specifically for the meal. These types of grinding are permitted on Yom Tov, as I will explain. On the other hand, one does not grind wheat the day one plans to bake bread, and it is therefore prohibited to grind flour on Yom Tov.

The laws of Yom Tov divide the various items that might be ground into four categories:

1. Items that are usually ground well in advance of preparing a meal, such as flour, may not be ground at all.

2.  Items that might be ground while preparing the meal, but could have been ground earlier without affecting their flavor, such as salt, may be ground on Yom Tov, but only by grinding with a shinui, in a way that is different from usual. For example, the Mishnah states that one may grind salt on Yom Tov with a wooden pestle, rather than one of stone (Beitzah 14a). Therefore, if someone discovers on Yom Tov that he has no table salt in the house, only coarse koshering salt, he may crush the salt on Yom Tov directly on the table, but not with a mortar and pestle, or salt or pepper mill.

3.  Items that taste better fresh, but are usable if ground before Yom Tov, may be ground or chopped on Yom Tov, but only by grinding or chopping them with a slight shinui (Rama 504:1), such as by placing a napkin on the plate or mortar, on which they are being ground (Mishnah Berurah 504:19). Therefore, someone accustomed to freshly crushed pepper or spices may grind them on Yom Tov slightly differently from usual, but may not use a tabletop pepper mill.

4.  Items that will become useless if ground or chopped before Yom Tov may be ground or chopped on Yom Tov in the way that they would usually be ground or chopped on a weekday. Therefore, one may mash avocado and banana, grate potatoes and onions, and dice salad and apples on Yom Tov the way one would on a weekday (Piskei Teshuvos 504:3).

Measuring

In general, it is prohibited to measure on Yom Tov, just as it is prohibited to measure on Shabbos. Thus, one may not measure out how much flour, sugar, or oil to use in a recipe (Shulchan Aruch Orach Chayim 506:1). However, one may approximate how much flour, oil, or sugar is needed. It is permitted to use a measuring cup, as long as one does not fill the cup exactly to its measuring points (Mishnah Berurah 506:3).

The poskim dispute whether one may measure spices on Yom Tov, some permitting (even though it is prohibited to measure other items) because approximating spices may ruin the recipe if one errs (Beitzah 29a). However, Magen Avraham (504:10) contends that since most women cook without measuring spices on weekdays, but simply estimate how much they use, they may not measure spices on Yom Tov. Others contend that someone who measure spices on weekdays may measure them on Yom Tov.

Cooking that is prohibited

One is permitted to cook and prepare food on Yom Tov only when one intends to eat that food on Yom Tov, but one may not cook for after Yom Tov or on the first day of Yom Tov for the second. For this reason, it is important that all preparations of meals for the second night of Yom Tov wait until the first day of Yom Tov is over. Thus, there was a custom in many communities in Eastern Europe to delay the davening the second night of Yom Tov, in order to discourage beginning the meal preparations too early.

One may cook amply for the Yom Tov meal, knowing that there will certainly be leftovers that can then be served on the second day of Yom Tov. However, this is allowed only if everything is prepared in one action: For example, one may cook on the first day a two-pound piece of meat even if only one pound of meat is needed for that day. One may not prepare individual units of a food item, knowing that one is preparing more than can possibly be eaten on Yom Tov.

One is not permitted to cook on Yom Tov for a non-Jew, since he does not observe Yom Tov. Furthermore, Chazal forbade inviting a non-Jew for a Yom Tov meal, out of concern that one might cook for him on Yom Tov. One may invite a non-Jew, such as domestic help, for whom you would not prepare a special dish. However, one may not cook specifically for him on Yom Tov.

It is also forbidden to cook or do other melacha for an animal. Thus, although one is permitted to mix dry grains with liquid to create an edible cereal on Yom Tov, one may not mix these items to feed a pet.

Use of stoves and ovens on Yom Tov

Chazal prohibited kindling a new flame on Yom Tov (Mishnah Beitzah 33a). Thus, although one may turn up an existing flame, one may not strike a match on Yom Tov (Aruch Hashulchan 502:6), nor may one light a stove or oven by using an electric igniter, since this is considered lighting with a new flame (Igros Moshe 1:115). If someone has a stove or oven that does not light with a gas pilot, it is a good idea to have a twenty-four hour candle burning over Yom Tov to facilitate lighting the stove on Yom Tov. Another advantage to igniting this candle before Yom Tov is that it enables the lighting of the Yom Tov candles on the second night of Yom Tov.

One is permitted to lower a flame in order to cook on Yom Tov. However, there are poskim who rule that one may lower a flame only when there is no option for turning up or on a different flame. According to the latter opinion, if one is cooking on a stove and one wants to lower the fire so that the food does not burn or boil out, one can do so only if there is no option for turning on another flame (Magen Avraham 514:2). However, Rav Moshe Feinstein ruled that it is permitted to lower a flame, because one desires to cook with a lower flame or so that the food does not burn or boil out (Igros Moshe 1:115; 4:103).

Hashkafah of preparing food on Yom Tov

The Torah refers to the Yomim Tovim as moed. Just as the word ohel moed refers to the tent in the desert which served as a meeting place between Hashem and the Jewish people, so too a moed is a meeting time between Hashem and the Jewish people (Hirsch, Vayikra 23:3 and Horeb). Although on Shabbos we are to refrain from all melacha activity, on Yom Tov, the Torah permitted melacha activity that enhances the celebration of the Yom Tov as a Moed. Permitting the preparations of delicious, freshly prepared meals allows an even greater celebration of the festivities of the Yom Tov, as we celebrate our unique relationship with Hashem.




Appreciating Tashlich

Question #1: As a child, I remember being told that tashlich was our annual opportunity to throw away all our sins into the water. What is behind this custom?

Question #2: Someone once told me that tashlich alludes to the 13 middos of Hashem’s mercy. How do these middos correspond?

Answer:

Both of these questions revolve around developing a deeper understanding of the custom of reciting tashlich on Rosh Hashanah. Let us research the sources and halachos of this minhag, and comprehend the lessons that we should learn while observing it.

The earliest mention of tashlich of which I am aware is in the writings of the Maharil, who lived in Germany during the late Fourteenth Century, and others of his generation (Minhagei Rosh Hashanah #9). He mentions the custom of going on Rosh Hashanah to the ocean or rivers that contain fish in order to “throw our sins into the depths of the sea,” vesashlich bimtzulos yam kol chatosom.

We should note that in the verse upon which this is based (Micha 7:19), it is not we, but Hashem , who is casting our iniquities into the sea. This is important, because tashlich does not mean that we have now successfully thrown away our sins. It is the realization that only by doing teshuvah will Hashem throw away our sins.

Others cite a different biblical source for tashlich, from the verse in Nechemiah (8:1): “On the first day of the seventh month [which is, of course, Rosh Hashanah], all the people gathered together, as one, to the street that was before the gate of the water” (Rav Reuven Margulies, cited in Piskei Teshuvos 583: footnote 48).

Tashlich is recorded by the Rama and the Arizal, and has, of course, become standard practice. It is interesting to note that the earliest sources for tashlich are all Ashkenazic authors, and later the custom spread to Sefardic communities. For example, Rav Chaim Vital (Sha’ar Hakavanos, quoted by Kaf Hachayim 583:30) writes, “The custom practiced by the Ashkenazim, which they call ‘tashlich,’ to go on the first day of Rosh Hashanah after Mincha, slightly before sunset, to the Mediterranean Sea or to a spring is a proper custom. It is preferable to do this outside the city, stand on the seashore or alongside the spring, and recite three times, ‘Mi Keil Kamocha…’ (Micha 7:18-20).”

Is it a Good Omen?

The Rama, both in Darkei Moshe and in his glosses to Shulchan Aruch, cites the custom of tashlich in what appears to be an unusual place. We would have expected that he mention tashlich as part of the discussion concerning what to do after Rosh Hashanah morning davening, which is found in Chapter 596 of Orach Chayim, or, alternatively, together with the laws of Rosh Hashanah Mincha, which are found in Chapter 598. Indeed, we find other authorities who discuss the rules of tashlich in both of these places. However, the Rama mentions the custom of tashlich earlier, in Chapter 583, where the Tur and Shulchan Aruch record the custom, mentioned in the Gemara, of eating special foods on the night of Rosh Hashanah as a good omen, a siman tov, for the coming year. Why did the Rama insert the practice of tashlich in a place that is out of chronological order?

It appears that the Rama includes tashlich in the chapter of good omens for the New Year because the main reason for the custom of tashlich is its powerful symbolism.  One can certainly explain why, according to the Rama, there is a preference to recite tashlich near a river, ocean, or other source that contains fish, since they are a sign of prosperity without ayin hora.

A Different Reason

The Gra, in his notes to this Rama, presents a different reason for the custom, the reason to which the Maharil himself alluded. The Gra quotes the Midrash (Yalkut Shimoni #99):

If Avraham could see the place of the Akeidah, why did it take him three days to get there? The answer is that the Satan first attempted to dissuade Avraham from going. When the Satan realized that this plan would not be successful, the Satan tried a different tactic, and made himself into a large river that would be impossible to pass… Avraham continued on [accompanied by Yitzchak and the two lads] until the river was up to their necks. Avraham then lifted his eyes heavenward, saying, “Master of all worlds, you revealed yourself to me and said, ‘I am the only One, and you are the only one. Make the entire world know about My name and bring your son as an olah.’ I did not question your words, nor did I delay fulfilling them. Now we are drowning. If my son Yitzchak drowns, how will I guarantee that Your unity be known?” Immediately, Hashem scolded the Satan, who left.

According to this approach, tashlich is a reminder of the tremendous mesiras nefesh of Avraham Avinu. This should make us internalize the message repeated daily in Shema — to love Hashem with all our being, even to sacrifice our lives for Hashem because we love Him so. Developing this quality of Ahavas Hashem is certainly one of the main goals of Rosh Hashanah. Thus, according to the Gra, tashlich is primarily an educational lesson.

A Fishy Place

However, according to the Gra’s approach, there is no apparent reason for reciting tashlich near a water source containing fish, a preference mentioned in most early sources. We may also note that the first reason I mentioned, that we want Hashem to wash away our sins as we do teshuvah, should also not require that the water contain fish.

However, there are many other reasons for reciting tashlich at a water source that contains fish. For example, the Levush explains that we should see ourselves as fish caught in a net. This comparison should encourage us to do teshuvah and to take the Yomim Nora’im more seriously.

Here is another reason why tashlich should preferably be recited at a water source containing fish: Fish, living their lives concealed under water, are not exposed to ayin hora; we, also, hope not to be exposed to ayin hora (Elyah Zuta).

Must it be Fishy?

Notwithstanding the various reasons to explain saying tashlich at a place populated by fish, the Magen Avraham (583:5) emphasizes that whereas the Maharil wrote to say tashlich at a river with live fish, the Arizal implies that it is equally acceptable to say tashlich at a well, even one that contains no fish. I will explain more about this shortly.

Outside the City

The Arizal (quoted by Magen Avraham 583:5) emphasizes that it is preferable to go to a water source outside the city. Based on the Midrashic source cited above, we can understand that our traveling is an attempt to reenact, in our own small way, the tribulations that Avraham Avinu underwent on his way to performing the incredible mitzvah of the akeidah.

I quoted earlier Rav Chayim Vital, the main disciple of the Arizal, who writes that one should recite tashlich at the seashore or next to a spring. Going to the Mediterranean or some other sea is certainly hinted at in the verse asking Hashem to throw all one’s sins into the depths of the sea, implying that one is close enough to throw something into the water. However, not all gedolei Yisrael followed this practice of being next to the body of water when they recited tashlich; they were satisfied with having the water in sight. For example, it is recorded that the Chasam Sofer went to a high place from where he could see the Danube River running through his hometown of Pressburg (today known as Bratislava).

Anyone who has been in Yerushalayim for Rosh Hashanah has probably noted that because there is no flowing river near the city, tashlich is recited in interesting places, such as near mikvaos and alongside buckets of water. For some time, Yerushalayim has been without any natural source of water, something unusual for any old city. The custom of reciting tashlich alongside a mikvah or a water cistern in Yerushalayim is already mentioned by the Kaf Hachayim (583:30), who reports that it is acceptable to recite tashlich even next to an empty water cistern! He explains that tashlich is only an allusion, and the main “water” we mean to convey our message is the “yam ha’elyon.” Obviously, he is alluding to a kabbalistic reason for tashlich.

In contemporary Yerushalayim, where I live, the most common practice is to recite tashlich alongside small backyard fish ponds stocked with a few inexpensive fish from a pet store. I assume that in the time of the Kaf Hachayim, there were few pet stores in Yerushalayim, and the scarcity of both drinkable water and adequate living quarters did not allow for backyard fish ponds.

Feeding the Fish

The Maharil is emphatic that one should not take bread to tashlich on Rosh Hashanah to feed the fish. Apparently, this custom of feeding crumbs or bread to the fish was observed over six hundred years ago, despite the opposition of most halachic authorities.

What is wrong with feeding the fish?

It is forbidden to feed any animals, birds or fish on Yom Tov that are not dependent on you (see, for example, Rashi, Beitzah 23b).

Crumb Carrying

Some authorities quote an additional reason for prohibiting putting bread into the river on Yom Tov. Carrying is permitted on Yom Tov only for items that fulfill some Yom Tov need. Since fish in the sea are not dependent on us for nourishment, carrying in a public domain to feed them desecrates Yom Tov (Mateh Efrayim 598:5).

 

Instead of Feeding the Fish

Some authorities describe a different practice that does not desecrate Yom Tov: while reciting the word “tashlich,” one should empty out the dirt that one finds in the hems of one’s garment into the water, hinting at casting away our sins. With this act, we should accept doing teshuvah wholeheartedly (Likkutei Mahariach; Kaf Hachayim; see Mateh Efrayim 598:4).

Some sources quote, in the name of the Arizal, that one should only shake out the dust on the tzitzis of one’s talis koton (Likkutei Mahariach, cited by Piskei Teshuvos 583:footnote 50). Obviously, according to this Arizal, women cannot fulfill this part of the custom.

Women and Tashlich

Many authorities are strongly opposed to women going to tashlich altogether (Elef Hamagein 598:7). On the holy day of Rosh Hashanah, there should be no intermingling of the genders, and better that the men not see women. If women want to go to tashlich, the best approach to avoid this problem is that introduced by my Rosh Yeshivah, Rav Ruderman, that women go to tashlich before Mincha, and men after.

The Structure of Tashlich

The main part of tashlich is to recite three verses from Micha that allude to the thirteen attributes of Hashem’s kindness. Thus, to understand tashlich well, we should understand the concept of the thirteen attributes.

After the Jewish People sinned when we worshipped the Eigel Hazahav, the Golden Calf, Hashem taught Moshe to use these thirteen attributes of His kindness to achieve absolution.

Rabbi Yochanan said: ‘Were it not for the fact that the Torah itself wrote this, it would be impossible to say it. The Torah teaches that Hashem wrapped Himself in a talis like a chazzan and demonstrated to Moshe the order of prayer. Hashem told Moshe: “Whenever the Jews sin, they should perform this order and I will forgive them“‘ (Rosh Hashanah 17b).

Rabbi Yochanan noted that the anthropomorphism of his own statement is rather shocking, and without scriptural proof, we would refrain from repeating it. Nevertheless, the Torah compelled us to say that Hashem revealed to Moshe a means for pardoning our iniquities. According to the Maharal, Moshe asked Hashem to elucidate, to the extent that a human can comprehend, how Hashem deals with the world in mercy. Hashem did, indeed, enlighten Moshe, enabling him to implore for forgiveness for the Jewish people, and teaching him how to lead the Jews in prayer (Chiddushei Aggados, Rosh Hashanah 17b s.v. Melameid).

A Word about Attributes

What exactly are the thirteen attributes? For that matter, can we attribute personality characteristics to Hashem?

To quote Rabbeinu Bachyei: Although we no longer know how to beseech, nor do we properly understand the power of the thirteen attributes and how they connect to Hashem’s mercy, we still know that the attributes of mercy plead on our behalf, since this is what Hashem promised. Today, when we are without a kohein gadol to atone for our sins and without a mizbei’ach on which to offer korbanos and no Beis Hamikdash in which to pray, we have left only our prayers and these thirteen attributes (Kad Hakemach, Kippurim 2).

Who Knows Thirteen?

The Torah says: Hashem, Hashem, is a merciful and gracious G-d, slow to anger, full of kindness and truth. He preserves kindness for thousands of generations by forgiving sins whether they are intentional, rebellious or negligent; and He forgives (Shemos 34:6-7).

There are many opinions among the halachic authorities exactly how to calculate the thirteen merciful attributes of Hashem. The most commonly quoted approach is that of Rabbeinu Tam, who counts each of the three mentions of Hashem’s name at the beginning of the passage, Hashem, Hashem, and Keil, as a separate attribute.

However, it is important to note that the Arizal counted the thirteen merciful attributes in a different way. Whereas Rabbeinu Tam counted Hashem, Hashem, Keil as three different attributes, the Arizal does not count the first two Names (Hashem, Hashem). Thus, the first attribute mentioned by the verse is Keil. To compensate for the loss of two attributes in the count of thirteen, the Arizal reaches thirteen by dividing each of the phrases erech apayim and notzeir chesed la’alafim into two different attributes, whereas, according to Rabbeinu Tam’s count, each of these phrases counts as only one attribute.

Micha’s Thirteen Attributes

The kabbalistic sources explain that the three verses of Micha that form the basic structure of tashlich also allude to the thirteen attributes of Hashem. For many years, I tried to figure out how the verses in Micha correspond to the thirteen attributes until I discovered that this allusion follows the Arizal’s approach to the thirteen attributes. Many machzorim have this method of counting the thirteen attributes noted by placing the word from Moshe’s original prayer above the corresponding attributes in the verse from Micha.

What do I do?

At this point, I want to return to the above-quoted Talmudic source that explains the power of the thirteen attributes and note a very important point:

Hashem told Moshe: “Whenever the Jews sin, they should perform this order and I will forgive them.” The Hebrew word that I have translated as “perform” is yaasu, which means that the Jews must do something, definitely more than just reading the words. If all that is required is to read these words, the Gemara should have said simply: They should read these words. Obviously, action, which always speaks louder than words, is required to fulfill these instructions and accomplish automatic atonement.

What does the Gemara mean?

Emulate Hashem

The commandment to emulate Hashem may be the most important of the 613 mitzvos. To quote the Gemara: Just as Hashem is gracious and merciful, so should you become gracious and merciful (Shabbos 133b). Hashem told Moshe: Whenever the Jews perform this order, I will forgive them. He meant that when we act towards one another with the same qualities of rachamim as does Hashem, He forgives us. Reciting the thirteen attributes of Hashem’s mercy is the first step towards making ourselves merciful, emulating Hashem’s ways. Yaasu means that by emulating Hashem’s kindness and His tolerance, by accepting people who annoy and harm us, we become His G-dly People!

This sounds great in theory. What does it mean in practice?

Here are several examples, all taken from the sefer Tomer Devorah, to help us comprehend what our job is:

1. Whenever someone does something wrong, Hashem is at that very moment providing all the needs of the offender. This is a tremendous amount of forbearance that Hashem demonstrates. Our mitzvah is to train ourselves to be equally accepting of those who annoy and wrong us.

2. We should appreciate the extent to which Hashem considers the Jews to be His People, and identify with the needs of each Jew on a corresponding level.

3. Hashem waits with infinite patience for the sinner to do teshuvah, always confident in this person’s ability to repent and change. While Hashem is waiting, He continues to provide the sinner with all his needs. Similarly, we should not stand on ceremony, waiting for someone who wronged us to apologize.

4. When a person does teshuvah after sinning, Hashem loves him more than He loved him before he sinned. As the Gemara states: In a place where baalei teshuvah stand, complete tzadikim are unable to stand. Therefore if someone wronged me and now wants to makes amends, I must befriend him and accept him at a greater level than I had previously.

All of these ideas are included when we observe the mitzvah of tashlich. We should read the verses and think how we can emulate Hashem’s kindness, by demonstrating the same acts of kindness that He performs to His creations.

Conclusion

There are so many beautiful lessons to learn from observing this old minhag. We should be careful to observe this practice in the spirit of the day, and, by internalizing these lessons, may we and all klal Yisrael merit a kesivah vachasimah tovah.




The Whys, Hows, and Whats of Eruv Tavshillin

Question #1:

Avrumie, who studies in a local yeshiva, asks me: “I will be eating my Yom Tov and Shabbos meals as a guest in different homes. Do I need to make my own eruv tavshillin?”

Question #2:

Michal and Muttie are spending Rosh Hashanah near his Yeshiva and are invited out for all the meals. They have found an available apartment for Yom Tov, but do not intend to use the kitchen there at all. Someone told Muttie that, although he should make an eruv tavshillin, he should not recite a bracha when doing so. Is this the correct procedure?

Answer:

With Rosh Hashana falling out on Thursday and Friday, and in chutz la’aretz also Sukkos and Shemini Atzeres/Simchas Torah, many people will be asking these or similar questions. In order to reply accurately to the above inquiries we need to investigate several aspects of this mitzvah that the Sages implemented – particularly, the whys, hows, and whats of eruv tavshillin.

WHY DO WE MAKE AN ERUV TAVSHILLIN?

Although one may cook on Yom Tov, one may prepare food only for consumption on that Yom Tov. There is, however, one exceptional situation — one may cook on a Friday Yom Tov for Shabbos, but only if one makes an eruv tavshillin the day before Yom Tov.

WHAT IS THE RECIPE FOR PRODUCING AN ERUV TAVSHILLIN?

It is fairly easy to make an eruv tavshillin:

INGREDIENTS

On Erev Yom Tov, set aside two prepared foods, one cooked and one baked, that one is not planning to eat on Yom Tov. Many people use a hard-boiled egg for the cooked item, but it is actually preferable to use something more significant (Mishnah Berurah 527:8). I personally use the gefilte fish that we will be eating at the Shabbos seudos.

PROCEDURE

(Someone who includes people outside his family in his eruv, such as the rav of a community, adds an additional step at this point: He has someone who does not usually eat with him, whom we will call the zo’che, lift the food used for the eruv tavshillin four inches or more. By lifting the food, the zo’che acquires ownership in the eruv for those who will forget to make an eruv tavshillin. The zo’che then returns the food to the rav [Shulchan Aruch, Orach Chayim 527:10- 12 and commentaries]. I will soon explain what the zo’che’s involvement accomplishes.)

One holds the eruv tavshillin, recites a bracha, Baruch Atta Hashem Elokeinu Melech haolam asher ki’deshanu bemitzvosav vetzivanu al mitzvas eruv, and declares:

This eruv permits us to bake, cook, wrap food to keep it hot, to kindle lights, and make all other food preparations on Yom Tov for Shabbos (Shulchan Aruch Orach Chayim 527:12).

Those who include other people in their eruv, insert:

For ourselves and for all others who dwell in this city.

INSTRUCTIONS

The foods that have now become the eruv tavshillin should not be consumed until one has completed all the Shabbos preparations.

YIELD

The eruv tavshillin allows the members of this household to prepare food for Shabbos. The rav’s eruv tavshillin will allow others who forgot an eruv tavshillin to prepare food, subject to the details we will soon learn.

WHAT DO I DO WITH THE ERUV?

After one has completed preparing everything for Shabbos, there is no requirement to do anything with the eruv, although it is preferable to use the challah as the second loaf for the first two meals of Shabbos and to eat the entire eruv tavshillin as part of the third meal of Shabbos (seudah shelishis) in order to use the mitzvah item (that is, the eruv tavshillin) for other mitzvos, in this case the three Shabbos meals (see Mishnah Berurah 527:48). (For the same reason, many set aside the lulav and hoshanas after Sukkos to use as fuel for baking matzos or burning the chometz.)

If someone mistakenly ate the eruv tavshillin before Shabbos, one may continue the Shabbos preparations as long as at least an olive-sized piece of the cooked item remains, even if the entire baked item was consumed. However, if less than an olive-sized piece of the cooked item remains, one may no longer continue cooking especially for Shabbos, and should ask a shaylah how to proceed (Shulchan Aruch 527:15).

FORGOT TO MAKE AN ERUV

Someone who fails to make an eruv tavshillin may not cook or bake on Yom Tov for Shabbos, and needs to ask a shaylah how to prepare his Shabbos meals (see Shulchan Aruch 527:20- 22). The Rishonim dispute whether he may kindle lights on Yom Tov for Shabbos when he has no eruv tavshillin (Shulchan Aruch 527:19). This dispute will soon become significant to our discussion.

WHY DOES THE RAV INCLUDE OTHER PEOPLE IN HIS ERUV?

As mentioned above, someone who did not make an eruv tavshillin may not cook on Yom Tov for Shabbos. The Gemara narrates the following story:

Shmuel saw that someone was very sad on Yom Tov and asked him why. The man responded, “Because I neglected to make an eruv tavshillin, and therefore I will be unable to cook for Shabbos.” Shmuel explained that the man could rely on Shmuel’s eruv tavshillin.

The next year Yom Tov once more fell on Friday. Shmuel again noticed that the man was sad, and again the man mentioned that he had forgotten to make an eruv tavshillin. However, this time Shmuel advised him that since he had repeated the negligence, he would not be allowed to rely upon Shmuel’s eruv (Beitzah 16b).

We see that the rav should include everyone in his city in his eruv tavshillin, lest someone forget to make an eruv, although everyone is required to create his/her own (Shulchan Aruch 527:7).

WHY DOES THE RAV HAND HIS ERUV TO SOMEONE ELSE?

A person must own or be a partner in the eruv tavshillin with which he fulfills this mitzvah. An eruv tavshillin automatically includes all regular members of this household, but how does it include other people? Having someone pick up the eruv tavshillin on their behalf makes them partial owners in this eruv tavshillin.

MUST I MAKE AN ERUV?

At this point, we can begin to analyze the two questions I mentioned at the beginning of the article. Let us begin by rephrasing Avrumie’s question: “I will be eating my Yom Tov meals as a guest. Do I make an eruv tavshillin?”

Avrumie, Michal, and Muttie will not be cooking on Yom Tov; does that exempt them from eruv tavshillin, or must they make one anyway? Is eruv tavshillin merely a license to cook for Shabbos on Yom Tov and therefore someone not preparing food has no need for one, or is there a rabbinic requirement to make an eruv tavshillin even when one will not be cooking? Avrumie will not be preparing food for Shabbos, whereas Michal will only be kindling the Shabbos lights. I will discuss soon whether this distinction affects our question. In the interim, I will discuss Avrumie’s situation by presenting two differing ways of understanding the function of eruv tavshillin, which I will describe as (A) matir, license or (B) chovah, obligation.

A. Matir

According to this approach, eruv tavshillin functions solely to permit one to cook on Yom Tov for Shabbos, so that one who is not planning to cook on Yom Tov for Shabbos has no requirement to make an eruv tavshillin. This opinion compares eruv tavshillin to the mitzvah of shechitah. One is not required to shecht an animal; however, someone interested in converting a bird or animal into food must perform shechitah to make it kosher. Thus, shechitah is a matir; it permits one to eat the meat, but one is not required to shecht an animal if one does not want to eat it. Similarly, eruv tavshillin permits one to cook for Shabbos, but one who does not intend to cook does not need to make an eruv.

Those following this approach will note that the other types of eruv (eruvei chatzeiros and eruvei techumim) are both types of matir that permit either carrying or traveling that is otherwise prohibited, and conclude that eruv tavshillin is similar to the other types of eruvin.

According to this approach, Avrumie has no need for an eruv tavshillin since he has no intention to cook for Shabbos. We will discuss shortly whether Michal’s kindling requires her to make an eruv tavshillin.

B. Chovah

On the other hand, one could argue that eruv tavshillin is different from the other two types of eruv, and is an obligatory act. This approach understands that Chazal created a rabbinic mitzvah requiring each individual or family to make an eruv tavshillin even if there is no intention to cook or bake on Yom Tov for Shabbos.

Why should eruv tavshillin be different from the other types of eruv? To answer this question we need to explain the reason for the rabbinic mitzvah called eruv tavshillin.

WHAT IS THE REASON FOR ERUV TAVSHILLIN?

The Gemara records a dispute discussing why Chazal introduced eruv tavshillin: Was it for the sake of honoring Shabbos, or for the sake of honoring Yom Tov (Beitzah 15b)?

A. For Shabbos

According to the first opinion, that of Rava, Chazal instituted eruv tavshillin to guarantee that one not become so involved in the Yom Tov feasting that one forgets to prepare proper meals for Shabbos. The eruv tavshillin therefore serves as a “red flag”: “Don’t forget to also produce delicious repasts for Shabbos!”

B. For Yom Tov

The other approach, that of Rav Ashi, contends that eruv tavshillin reinforces the sanctity of Yom Tov by emphasizing that without the eruv tavshillin one may not cook on Yom Tov, even for Shabbos. A person thereby realizes: if cooking on Yom Tov for Shabbos is forbidden without an eruv tavshillin, certainly one may not prepare food on Yom Tov for a subsequent weekday!

How does this dispute affect Avrumie, Michal and Muttie?

The basis for treating eruv tavshillin as a chovah, an obligation, and not merely a matir, is Rava’s opinion that eruv tavshillin’s purpose is to guarantee that one celebrates Shabbos properly. In other words, eruv tavshillin is to remind us to cook for Shabbos. Clearly, this is not a matir, but a chovah. In Rava’s opinion, eruv tavshillin is similar to the rabbinic requirement of kindling lights before Shabbos to ensure that one does not sit in the dark. Even someone who enjoys sitting in the dark is required to kindle lights before Shabbos since this is not a matir but a chovah. Thus, according to Rava, Avrumie must make an eruv tavshillin (or be included in someone else’s), even though he has no intention to cook, because eruv tavshillin is a requirement that Chazal placed on every individual to remind him to prepare appropriate meals for Shabbos.

DO WE FOLLOW RAVA’S APPROACH?

However, the halacha does not follow Rava’s opinion but follows Rav Ashi’s position, that the purpose of eruv tavshillin is for Yom Tov’s honor. As noted above, Rav Ashi contended that the reason for eruv tavshillin is to guarantee that people realize that Yom Tov is so holy that one may not cook on it for weekday needs. According to this approach, one could argue that eruv tavshillin is simply a matir and that one who does not intend to cook for Shabbos need not make an eruv tavshillin, since if one is not cooking for Shabbos, it is unlikely that he will cook for the weekdays following Shabbos.

On the other hand, the usual assumption is that when the Gemara quotes two disputing opinions, the disagreement concerns only the one point mentioned and no other issues. Thus, once we have demonstrated that Rava contends that eruv tavshillin is mandatory, we should conclude either one of the following two points:

1. That the issue of whether eruv tavshillin is a matir or a chovah is itself the focal point of the dispute between Rav Ashi and Rava.

2. That Rav Ashi and Rava agree that eruv tavshillin is mandatory and not merely a matir.

The difficulty with the first approach is that we see no evidence that Rav Ashi considers eruv tavshillin to be only a matir. On the contrary, the Gemara maintains that the dispute between Rav Ashi and Rava is whether eruv tavshillin is for the honor of Yom Tov or of Shabbos. Since Rava must maintain that eruv tavshillin is a chovah, and the dispute between them concerns only whether eruv tavshillin is for the honor of Yom Tov or of Shabbos, we should infer that Rav Ashi agrees that eruv tavshillin is a chovah. This analysis would conclude that Avrumie, Michal and Muttie are all required to make an eruv tavshillin. However, notwithstanding this analysis, I have found no early source who states that eruv tavshillin is obligatory for someone who has no need to cook for Shabbos.

LITERATURE

Having discussed whether eruv tavshillin is a matir or a chovah we can now research whether the halachic literature produces any evidence supporting either side of this question. Analysis of the position of one recognized halachic authority demonstrates that he felt that eruv tavshillin is a matir, not a chovah.

The Maamar Mordechai, a respect commentary on the Shulchan Aruch, discusses the exact issue that I posed as Michal’s shaylah:

Someone will not be cooking or baking on Yom Tov for Shabbos, but will need to kindle lights immediately before the entry of Shabbos. Does this person recite a bracha prior to making his/her eruv tavshillin?

The background to his question is the dispute of the Rishonim whether a person may kindle lights for Shabbos even if he did not make an eruv tavshillin. In other words, some Rishonim hold that an eruv tavshillin is necessary not only to permit cooking on Yom Tov, but also to permit any preparations for Shabbos.

The Maamar Mordechai (527:18) rules that since many authorities contend that kindling lights for Shabbos does not require an eruv tavshillin, someone not intending to cook for Shabbos should make an eruv tavshillin without reciting a bracha.

Implicit in the Maamar Mordechai’s conclusion is that the purpose of eruv tavshillin is exclusively to permit cooking and baking on Yom Tov, and there is no independent requirement to make an eruv tavshillin. If the Maamar Mordechai feels that eruv tavshillin is a chovah and not merely a matir, the dispute whether or not one can kindle lights without an eruv tavshillin is irrelevant to reciting a bracha. Whether one needs the eruv tavshillin or not, one would recite a bracha for performing the mitzvah that Chazal instituted! Thus, the Maamar Mordechai clearly holds that eruv tavshillin is only a matir, and that one recites the bracha only if the matir is required.

However, the Maamar Mordechai’s ruling is not obvious, even assuming that eruv tavshillin is only a matir and not a chovah. It is possible that one should recite a bracha on making the eruv tavshillin even if he has no intention to cook on Yom Tov, since the eruv permits him to cook should he choose to. Thus, the eruv tavshillin fulfilled its role as a matir in permitting him to cook, and for that alone he should be able to recite a bracha even if he has no intention to cook. Yet the Maamar Mordechai values the eruv tavshillin only if one intends to use it, whereas, if one does not intend to use it, it is considered purposeless and warrants no bracha. Thus, according to the Maamar Mordechai, Michal and Muttie should make an eruv tavshillin without a bracha.

I was asked this exact shaylah one year when the first day of Pesach occurred on Thursday. Those of us who live in Eretz Yisrael had no mitzvah of eruv tavshillin since, for us, Friday was not Yom Tov. However, we had several guests for Yom Tov who live in chutz la’aretz and observe two days of Yom Tov even while visiting Eretz Yisroel. For them, it was prohibited to cook on Yom Tov without an eruv tavshillin. I suggested that they make an eruv tavshillin with a bracha, but out of deference to the opinion of the Maamar Mordechai, instructed that those reciting a bracha should participate in the cooking for Shabbos that would transpire on Yom Tov at least in a small way. Of course, I suggest that those of you faced with the same shaylah as Avrumie, Michal or Muttie ask your own rav for direction. I would be curious to know whether he agrees with me and, if not, for what reason.

THE HASHKAFAH OF PREPARING FOOD ON YOM TOV

The Torah refers to the Yomim Tovim as Moed. Just as the word ohel moed refers to the tent in the desert which served as a meeting place between Hashem and the Jewish people, so too, a Moed is a meeting time between Hashem and the Jewish people (Hirsch, Vayikra 23:3 and Horeb). Unlike Shabbos when we refrain from all melacha activity, on Yom Tov the Torah permitted melacha activity that enhances the celebration of the Yom Tov as a Moed. Permitting the preparations of delicious, freshly prepared meals allows an even greater celebration of this unique meeting time with Hashem.




When May I Remove a Tree? Part I

Question #1: Expansion or Destruction?

A community has been renting a house for their shul. Though the membership has now grown, thank G-d, the building has not and is no longer large enough to accommodate their needs. Their landlord has allowed them to expand the building, even though doing so will require removing a fruit tree. May they expand the shul at the expense of the tree?

Question #2: Shady Mitzvah

We just moved into a new house, and the only place for a sukkah is shaded by fruit trees. May we level the trees in order to build our sukkah?

Question #3: Darkening Peaches

A peach tree that grew on its own is now blocking the light from entering our house. May we cut down the tree?

Question #4: George and the Cherry Tree

If cherry wood prices had spiked, would George Washington* have been permitted to chop down the cherry tree for its valuable lumber?

(*Please note: George Washington did not ask me a shaylah about chopping down the cherry tree. The other shaylos mentioned are all actual cases. With the exception of George, all names have been changed to protect individuals’ privacy. Since George was not Jewish, he was not required to observe this mitzvah.)

Answer:

In this week’s parsha, the Torah teaches:

When you lay siege to a city for many days to wage war against it in order to capture it, do not destroy its trees by wielding an axe against them, because from them you shall eat, and for this reason you should not cut them down. For, is a tree of the field a man, that you are besieging it? Rather, a tree that you know will not produce food – it you may destroy and cut down, and with it build a battlement against the city that is waging war against you, until you conquer it (Devorim 20:19-20).

The Ramban explains that the Torah is discussing a very specific situation, in which the Jewish army needs to construct an earthwork to attack the enemy city, and has available both trees that are producing fruit and others that are not. The Torah prohibits razing the fruit trees, since one has the option of using only those trees that do not produce fruit. However, should obliterating the fruit trees be helpful militarily, one may destroy them (Ramban Commentary ad loc., and in his notes at the end of Sefer HaMitzvos, “Mitzvas Asei #6 that the Rav omitted”).

Use of Fruit Trees in War

Several possible scenarios exist in which razing fruit trees has battlefield benefit, and in all of these situations one may destroy the trees. For example, if there are not enough non-fruit trees available to build the earthwork or when the enemy might use the fruit trees either as cover, for wood or for food; in these cases, one may raze the fruit trees. What the Torah is banning is a scorched-earth policy of destroying everything around the city, simply to wreak devastation (Ramban Commentary, ad loc.).

Peach or Teakwood?

For this reason, some rule that if a non-fruit tree is valuable for use in furniture, one may spare that tree, even though as a result one will need to chop down fruit trees for the fortifications (Shu’t Chasam Sofer, Yoreh Deah #102, quoting Shitah Mekubetzes in the name of the Geonim). Thus, one could raze a fruit tree and use it for building the rampart and spare a teak tree for a commercially beneficial use.

Indirect Destruction

Looking back at the Torah’s verse that I quoted above, I would like to call attention to a redundancy: Do not destroy its trees by wielding an axe against it… you should not cut it down. The Torah appears to be stating the same thing twice. What additional lesson is the Torah teaching by repeating the command?

Some authorities, indeed, explain that there are two different negative commandments here (Baal Halachos Gedolos). The Sifrei explains that, with its seemingly redundant words, the Torah teaches that it is even prohibited to destroy the tree indirectly, such as by blocking its water source (see Lechem Mishneh, Hilchos Melachim 6:8).

In Peace Time

Although the Torah explicitly discusses razing trees in wartime, this prohibition applies equally in peaceful times. While comparing destroying trees to injuring oneself, the Mishnah states: Someone who cuts down his trees, although it is prohibited for him to do so, is not obligated to pay (Bava Kamma 90b). In its commentary on this Mishnah, the Gemara records the following discussion: Rav said: “One may not chop down an aging date palm, as long as it is still carrying a kav-weight of dates…” Ravina noted: “If the tree was worth more for its lumber, one may chop it down” (Bava Kamma 91b). Thus, the Mishnah teaches that one may not level a productive fruit tree, and the Gemara explains that a tree valued for its lumber and not its fruit, either because of the quality of its lumber or because of its age, is no longer considered a “fruit tree” and may be cut down.

Thus, one can explain that the Torah means: Even when you are involved in warfare, and the tendency is to destroy randomly everything in one’s path, keep in mind what fulfills your goal and what does not, and destroy only what is required. Surely, we must build a rampart, but we do not need to destroy productive fruit trees that the enemy cannot use to help him in the battle. However, just as one may destroy a fruit tree in war when there is a tactical reason to do so, one may chop it down in peacetime, when it is no longer productive. In addition to the two cases mentioned above — when it is worth more as wood, or it is not producing enough fruit to make its maintenance worthwhile — the Gemara adds a third example when one may raze a fruit tree: when it is damaging other fruit trees (Bava Kamma 91b- 92a; Rambam, Hilchos Melachim 6:8-9).

Clear for Construction

(1) The Goldbergs purchased a new house, hoping to expand it onto the huge lot that they have that contains several beautiful fruit trees. May they remove the trees to expand their house?

(2) or, the question I asked above: “A peach tree that grew on its own is now blocking the light from entering our house. May we cut down the tree?”

Beneficial Razing

May one raze a fruit tree in order to build on its location? May one raze an aging, but still productive, fruit tree to move new tree saplings to its location? Fruit farmers regularly level areas that are aging and becoming less productive in order to replant a new orchard in their place. Is this halachically permitted?

What we are asking is: Can we expand the three cases where the Gemara permitted destroying a fruit tree to other cases when it is beneficial to remove the tree?

One very early authority, the Rosh (Bava Kamma 8:15) seems to accept this approach, permitting cutting down a fruit tree to create an area on which to build a house. It seems that he understands that the Torah prohibited destroying a fruit tree only when there is no benefit from the destruction, or at least less gain than the tree is worth. Many authorities indeed rule like the Rosh and permit razing a tree when there is some resultant advantage (Taz, Yoreh Deah 115:6; Shu’t Chavos Yair #195; Shu’t Har Tzvi, Orach Chayim 2:102).  Other authorities permit this only when the house is worth more than the tree (She’eilas Yaavetz 1:76). Similarly, it would seem to me that, according to these authorities, there is a halachic basis for allowing the approach of farmers to destroy older trees and replace them with new ones.

However, other authorities dispute this conclusion, rallying evidence that other Rishonim prohibit chopping down a viable fruit tree for the sake of construction (Shu’t Beis Yaakov #140, quoted by above-mentioned Har Tzvi; Shu’t Meisheiv Davar 2:56).

A Shady Deal

Let us refer to one of our opening questions: A peach tree that grew on its own is now blocking the light from entering our house. May we cut down the tree?

This actual question was addressed to the Chavos Yair, a great 17th century Central European posek.

Based on the above-quoted Rosh, who permitted cutting down a tree in order to construct a house, the Chavos Yair allowed chopping down the offending peach tree. However, the Chavos Yair rules that this is permitted only when he cannot simply remove some branches to allow the light into his house. When one can simply remove some branches and spare the tree, the Chavos Yair prohibits chopping down the entire tree, since it is unnecessary to do so. Even though the branches will eventually grow back again and block his light, the Chavos Yair does not permit chopping down the tree, but requires one to repeatedly trim it, since it is not necessary to destroy it for the sake of the house. Thus, although he accepts the Rosh’s ruling permitting removing a tree for the sake of a dwelling, the Chavos Yair notes that this is permitted only when one cannot have the house and eat the fruits, too.

Expanding Living Space

The Chavos Yair further rules that the Rosh, who permitted chopping down a tree to have construction done on its place did so only when the construction filled an essential need for the house, and not when it was merely to make the house nicer, such as to widen the yard or to provide a place to relax.

At this point, we can probably answer the Goldbergs’ question. They purchased a new house, hoping to expand it onto the huge lot that they have that contains several beautiful fruit trees. May they remove the trees to expand their house?

Even according to the Rosh, they may remove the trees only to provide something essential for the house. Since the house was already usable, it is prohibited for them to raze the trees. (However, we will soon share with them a possible solution.)

Some are Much Stricter

The Chavos Yair follows the Rosh’s approach and permits removing a fruit tree if there is no other way to build a house. However, not all later authorities are this lenient. When asked this exact question, “May one cut down a tree to construct a house,” the Netziv, one of the leading authorities of 19th century Lithuania, was not comfortable with relying on the opinion of the Rosh and permitting it. Rather, he concluded that there are early authorities who disagree with the Rosh and permit razing a fruit tree only in the three situations that the Gemara mentions: when the tree is more valuable as lumber, when it is producing almost no fruit, or when it is affecting the growth of other fruit trees. In the first two instances, it is no longer considered a fruit tree. The Netziv provides two different reasons why, if it is still considered a fruit tree, one cannot remove it, unless it is damaging other trees.

(1) One may chop down the tree only because it is damaging other fruit trees, but for no other reason.

(2) Chopping down a fruit tree is permitted only when removing it provides immediate benefit. However, when one clears a tree to make room for construction, there is no immediate benefit when one clears away the tree. The benefit is not realized until one builds the house, which does not take place until later, and we do not see from the Gemara that this is permitted.

Following this latter approach, it is prohibited to destroy older trees and replace them with new ones, and halachically-abiding farmers must wait until the trees are hardly productive before replacing them with new saplings.

Hazardous to one’s Health

There is another reason to be concerned about chopping down fruit trees. In addition to the Torah’s prohibition, Chazal consider cutting down trees to be dangerous. To quote the Gemara, “Rabbi Chanina stated: My son Shivchas died only as punishment for cutting down a fig tree prematurely” (Bava Kamma 91b). Thus we see that cutting down a fruit tree is not only an issue of bal tashchis, but also a safety concern.

What About for Temporary Use?

A community was renting a house from a non-Jew for their shul. The number of congregants is now, thank G-d, exceeding the capacity of the shul building, and the gentile owner has allowed them to expand the building on which they still have nine more years on their lease. However, there is only one direction in which they can expand their building, and there is a grape vine growing there, which they would need to uproot to perform their expansion. The gentile owner has permitted them to rip up the vine for this purpose. The community’s question is whether expanding the shul is a valid reason to permit ripping up a grape vine, which is halachically considered a fruit tree; particularly since the community’s benefit may be only temporary, since the gentile landlord may not renew their lease, and they may then need to look for new quarters.

The Yaavetz ruled that even the temporary use of a shul is a valid reason permitting the ripping up of the grape vine. However, because of his concern that it is dangerous to do so, he advises hiring a gentile to uproot the vine. Since the mitzvah of destroying fruit trees is not included among the mitzvos that a ben Noach must observe, the gentile is not required to observe it, and therefore it is not dangerous for him to remove the vine.

The Yaavetz then mentions another factor. In every instance mentioned by the earlier authorities, the tree could not be removed and planted elsewhere. The Yaavetz suggests that there is no prohibition to uproot a fruit tree, if one will replant the tree elsewhere. Thus, he concludes that even when no other solution exists to permit destroying a fruit tree, one may remove it by its root and replant it elsewhere and then use the land for whatever one chooses.

Saving the Goldbergs!

The Yaavetz’s suggestion is very welcome news to the Goldbergs. They purchased a new house hoping to expand it onto the huge lot that they have that contains several beautiful fruit trees. May they remove the trees to expand their house?

According to the Yaavetz, they may remove the trees and plant them elsewhere, and then expand their house onto the extended lot.

This ruling of the Yaavetz is not without its detractors. The Chasam Sofer (Yoreh Deah #102) concludes that one should not rely on this idea of the Yaavetz to remove a tree when other lenient reasons do not apply. However, he does accept the Yaavetz’s rule as a stringency — that if one can replant a fruit tree it, one may not destroy it, since the demolition of the tree is unnecessary. Thus, if a fruit tree is damaging other trees, one may destroy it only when replanting it is not an option.

Shady Mitzvah

At this point, I would like to discuss one of the above-mentioned questions.

“We just moved into a new house, and the only place where we can put a sukkah is in an area which is shaded by a fruit tree. May we chop down the tree in order to have a place to build our sukkah?”

This exact question was asked of Rav Tzvi Pesach Frank, who was the rav of Yerushalayim for many decades until his passing in 1960. Rav Frank cites and analyzes many of the above-mentioned sources, and is inclined to be lenient, reasoning that the performance of a mitzvah cannot be considered a destructive act. He concludes that one should have a gentile remove it, but not as an agent for a Jew, although he does not explain how one accomplishes this (Shu’t Har Tzvi, Orach Chayim II #102).

Conclusion

Thus, we see that there are different ways of understanding when one may destroy a fruit tree for a valid reason, and each person should ask his own rav what to do in his particular circumstances.

The Ramban explains that the reason for the mitzvah is that one should have trust in Hashem that He will assist us in vanquishing our enemies, and then we will be able to use the fruit from this tree. So why destroy it? One should treat the tree as if it is already in my possession!

See part II of this article for more on this topic.




Mezuzah on a Rental

Question #1: Tenancy

“We rented a new apartment but did not put up mezuzos immediately, figuring that we had thirty days to do so. Someone told me that Rav Moshe held that we should put up mezuzos immediately. Is that true?”

Question #2: Temporary Dwelling

“When we went to visit our children in Ramat Beit Shemesh for two weeks, they had borrowed for us  a brand-new apartment that the owners themselves had not yet  used. I was surprised to see mezuzos on the doors already. My son-in-law explained that he put up mezuzos in the entire apartment, so that we could use it. Was he required to do so? I thought that one is not required to have mezuzos unless one lives in a place for at least a month.”

Question #3: Mezuzah on a Rehab

“My mother unfortunately fell and broke her femur and will be staying for an extended period of time in a rehabilitation hospital. Are we required to make sure that there is a kosher mezuzah on the door of her room?”

Basic Information:

The Torah requires that a mezuzah be placed on the doorposts of “your” house, beisecha. What is the definition of beisecha? Does the mitzvah apply even when I live in a house that I do not own? Does it apply to a property I own, even if I do not live there? These questions are addressed by the Gemara and its major early commentaries.

The Gemara (Pesachim 4a; Bava Metzia 101b; Avodah Zarah 21a) teaches that the obligation to put up a mezuzah devolves upon the person living in a house, and not upon a non-resident owner. Thus, a Jew who rents his home from a gentile is obligated to have mezuzos on the doors (Rambam, Hilchos Mezuzah 5:11; Beis Yosef, end of Yoreh Deah 286; however, cf. Hagahos Maimonis 5:7 who quotes a disputing opinion), whereas a Jewish landlord who owns residential properties where he does not live is not obligated to place mezuzos there.

When one Jew rents his house or apartment to a second Jew, the requirement to place a mezuzah rests with the tenant.

The Gemara’s Statement

There is another Talmudic passage that expands upon the previously-quoted rulings:

“One who lives in an inn in Eretz Yisroel, or one who rents a house in chutz la’aretz, is exempt from the mitzvah of mezuzah for thirty days. [If he rents] for longer, he is required to put up a mezuzah. However, one who rents a house in Eretz Yisroel must put a mezuzah up immediately, because this assists in the settling of Eretz Yisroel” (Menachos 44a).

This passage of Gemara mentions three halachos:

1. Someone who lives in an inn, hotel, or other temporary residence is, in general, not obligated to put up a mezuzah. The Gemara states that someone who dwells in an inn in Eretz Yisroel for thirty days becomes obligated in mezuzah.

2. Someone who rents a house or apartment for thirty days or more must put up a mezuzah.

3. However, someone who rents or borrows a house or apartment in Eretz Yisroel must put up a mezuzah immediately.

More Details

In order to answer our opening questions, we will need to clarify each of these halachos in more detail. First we will explain the rules governing a tenant in chutz la’aretz, who is required to put up a mezuzah when he lives thirty days in a rented or borrowed residence.

The first question is: As we mentioned above, the Torah requires placing a mezuzah on beisecha, your house. If a rented residence qualifies as “your house,” then a tenant should be obligated to place a mezuzah there immediately, and if a rented residence does not qualify as “your house,” then the tenant should not be obligated in the mitzvah, even if he lives there longer.

What difference does thirty days make?

As we can imagine, we are not the first to raise this question. Tosafos (Menachos 44a s.v. Talis) asks this question and presents two very different answers.

I. The person dwelling in a residence is the one who requires the shemirah that the mezuzah provides. For this reason, the mezuzah is the tenant’s responsibility. However, someone living in a dwelling for less than thirty days is not yet considered to be a resident. According to this approach, the requirement to install a mezuzah on a rented dwelling in which one lives for thirty days is min haTorah.

II. The second approach understands that min haTorah a tenant is not required to have a mezuzah on his door, since the Torah’s word beisecha, your house, implies that only one who owns the residence is required to have a mezuzah. A tenant who lives in a residence for thirty days is required to have a mezuzah as a takkanas chachamim instituted by the Sages, because the house appears to be his.

Several later authorities conclude that the second approach, that a tenant’s obligation to put up a mezuzah is only miderabbanan, is the approach that we follow in practical halachah (Shu”t Rabbi Akiva Eiger, 1:66; Shu”t Avnei Nezer, Yoreh Deah, #380).

What if I Borrow?

The halachic authorities rule that just as someone who rents a residence for thirty days is obligated to have a mezuzah, so, too, someone who borrows a residence for thirty days or more without paying any rent is obligated to have a mezuzah (Rabbeinu Manoach, quoted by Beis Yosef, Yoreh Deah, end of 286).

Is the Requirement for a Mezuzah Immediate?

At this point, I want to address the first question we quoted above:

“We rented a new apartment but did not put up mezuzos immediately, figuring that we had thirty days to do so. Someone told me that Rav Moshe held that we should put up mezuzos immediately. Is that true?”

The question here is: If someone knows that he will be living in a house or apartment for more than thirty days, does he have no chiyuv until the thirtieth day, or does the fact that he will be living there for thirty days create an immediate chiyuv? This matter is disputed. Some authorities contend that someone who intends to rent or borrow a home or apartment for more than thirty days becomes obligated in mezuzah immediately (Derech HaChayim; Shu”t Harei Besamim 2:219, quoted by Shu”t Minchas Yitzchak 2:82). This approach is implied by Rashi (Menachos 44a), who writes that a tenant is not obligated in mezuzah for thirty days because he might back out of the rental, thus implying that if he is already committed to renting it for more than thirty days, he is required to put up a mezuzah immediately.

Some derive support for this position from the halachah that someone who moves into a community is not obligated in local taxes until he lives there for thirty days. However, someone who demonstrates intention to live in the community for thirty days or more becomes obligated to pay taxes immediately. Thus, we see that intention to live somewhere for thirty days may determine permanent dwelling status.

However, other authorities contend that a tenant’s obligation to put up a mezuzah is because it looks as if he is living there permanently, and this does not happen until he is actually there for thirty days. They contend that even someone who signed a multi-year lease is not obligated to put up a mezuzah until he lives in the rental home for thirty days (Nachalas Zvi to Yoreh Deah 286:22; Pischei Teshuvah, Yoreh Deah 286:18).

Although some later authorities prefer that a long-term tenant put up the mezuzah immediately in deference to the Derech HaChayim’s position (Shu”t Igros Moshe, Yoreh Deah 1:179), the more common practice is to follow the second approach, that of the Nachalas Zvi, that one is not obligated to put up the mezuzah immediately upon moving in.

When should I actually put it up?

Assuming that a tenant is not required to do so until thirty days have passed, may he put up the mezuzah earlier and already recite a brocha, or should he wait until the thirtieth day? The question is: since the Nachalas Zvi rules that a tenant is not obligated to put up a mezuzah until he is living there for thirty days, perhaps one cannot recite a brocha upon installing the mezuzah until one is obligated to do so.

We find a dispute in this matter. The Nachalas Zvi and the Halachos Ketanos (quoted by Birkei Yosef, Yoreh Deah 286:7) conclude that, although it may be a bigger mitzvah to wait until the thirtieth day, so that one performs the mitzvah at a time when one is required to do so, one may put up the mezuzah any time during the thirty day period with a brocha. Others rule that one should not recite a brocha until the thirtieth day (Toras Chesed quoted by Birkei Yosef, Yoreh Deah 286:7; and others quoted by Chovas Hadar, page 29, ftn. 8).

Thus, we have three approaches as to what to do:

1. Put up the mezuzah immediately.

2. Put up the mezuzah any time during the thirty days.

3. Put up the mezuzah specifically on the thirtieth day.

I advise each individual to ask his or her own posek which approach to follow.

Temporary Dwelling in Eretz Yisroel

At this point, let us discuss the third point made by the Gemara I quoted above – that someone who rents or borrows a house or apartment in Eretz Yisroel must put up a mezuzah immediately.

How does putting up a mezuzah assist the settling of Eretz Yisroel?

To explain this idea, we need to discuss a different law. The halachah is that, when vacating a residence, one is usually required to leave the mezuzos in place. To quote the Gemara: “When a Jew rents a house to a fellow Jew, the tenant is responsible to affix the mezuzos. However, when the tenant vacates, he may not remove them. On the other hand, a Jew who rents a residence from a gentile removes the mezuzos when he leaves” (Bava Metzia 102a).

Based on this halachah, Rashi (Menachos 44a) explains why Chazal required someone renting in Eretz Yisroel to put up a mezuzah immediately. Since the tenant may not take the mezuzos with him, he will be reticent to move. And even if he does move, since the mezuzos are left behind, a different Jew will be eager to rent it, since he spares himself the expense of purchasing mezuzos. Either way, the dwelling will remain with a Jewish resident, which accomplishes that “this assists in the settling of Eretz Yisroel.”

Borrowing in Eretz Yisroel

We can now discuss the question I raised at the beginning of our article:

“When we went to visit our children in Ramat Beit Shemesh for two weeks, they had borrowed for us a brand-new apartment that the owners themselves had not yet used. I was surprised to see mezuzos on the doors already. My son-in-law explained that he put up mezuzos in the entire apartment, so that we could use it. Was he required to do so? I thought that one is not required to have mezuzos, unless one lives in a place for at least a month.”

As I mentioned above, the Gemara rules that someone who rents a house in Eretz Yisroel must put a mezuzah up immediately, because this assists in the settling of Eretz Yisroel. And, since borrowing a house is the same as renting it (Rama 286:22), a person who borrows someone’s house for just one night is required to install mezuzos on the entire house.

The “Inn” Thing

As I mentioned above, someone who lives in an inn, hotel, or other temporary residence is, in general, not obligated to put up a mezuzah. Since it is assumed that an inn is not a place in which one lives permanently, it is not considered a “dwelling” (Shach, Yoreh Deah 286:28). Rashi (Menachos 32b s.v. Hayu) implies that someone living temporarily in a residence that is clearly not intended to be permanent is not required to have a mezuzah, even if he owns the “residence.”

Thus, we see that if one is in a hotel in Eretz Yisroel, he or she is not required to have a mezuzah, and therefore certainly not required to ascertain if the mezuzos on the hotel room door are kosher.

Inn Chutz La’aretz

However, the Gemara states that someone who dwells in an inn in Eretz Yisroel for thirty days becomes obligated in mezuzah. What about someone whose permanent residence is in chutz la’aretz and in an inn? Is he obligated to put up a mezuzah?

Most authorities explain that someone who lives permanently in an inn in chutz la’aretz is not obligated to put up a mezuzah, because this is not considered having a house (see Chovas Hadar, page 31, footnote 16). Only in Eretz Yisroel did Chazal require one to put up a mezuzah if he lives permanently in a place that is usually meant for temporary dwelling. (Perhaps this explains why so many people in Eretz Yisroel live permanently in temporary housing, such as caravans and caravillas.)

However, the Aruch HaShulchan (Yoreh Deah 286:48) implies that someone living in an inn in chutz la’aretz for more than thirty days is required to put up a mezuzah, and I believe that this is the more common practice.

What about a Hut?

Later authorities discuss whether someone who lives in a hut or similar accommodation for longer than thirty days must put up a mezuzah. The Sdei Chemed concludes that if someone moves for more than thirty days into a hut, bungalow or similar accommodation, he is obligated in mezuzah, whereas someone living in a hut as a refugee is not obligated to put up a mezuzah (Volume 4 page 245). Others rule that one should put up a mezuzah without a brocha, even if he is a refugee (Chazon Nachum, quoted by Birkei Yosef, Yoreh Deah 286:9)

What about a Mobile Home?

The Minchas Yitzchak (2: 82) discusses whether someone who lives permanently in a mobile home is required to put up a mezuzah, concluding that he is required to do so; however the Minchas Yitzchak is uncertain whether he should recite a brocha when he puts it up.

A Boarding House

The Aruch HaShulchan (Yoreh Deah 286:46) rules that although someone staying temporarily in an inn is exempt from the mitzvah of mezuzah, this is true only when the room or the inn is not a part of someone’s house. However, a Jewish person who takes in boarders into his house is required to have mezuzos on all the doors. This is not a requirement because of the tenants, but because of the owner – having boarders is considered a residential use of his own property that requires him to have a mezuzah, just as all other rooms in his house must have one.

A similar situation would exist if someone has gentile help living in his house, or if he rents out rooms in his house to gentiles. Even though a gentile has no obligation to put up a mezuzah, since this is a room in his house, he is required to put up a mezuzah.

A Guest House

Chovas HaDor (page 20, ftn 1) explains that the Aruch HaShulchan includes the obligation for mezuzah only when the guest rooms are in the owner’s house. However, if a separate structure is used as a guesthouse, the owner has no responsibility to place mezuzos there.

If the gentile employees live in a separate building on one’s property, and the owner does not use that property for his own domestic needs, then there is no requirement to put a mezuzah on the gentiles’ residences (Chovas HaDor page 20, ftn 1).

In a Rehab Center

At this point, we should discuss the unfortunate third case mentioned above:

“My mother, unfortunately, fell and broke her femur and will be staying for an extended period of time in a rehabilitation hospital. Are we required to make sure that there is a kosher mezuzah on the door of her room?”

This question is discussed by one of the great Nineteenth Century halachic authorities, the Avnei Nezer. He concludes that someone hospitalized for an extensive period of time is not required to place a mezuzah on a hospital room for two reasons:

Even according to those opinions that a long-term tenant is obligated min haTorah to put up a mezuzah, the Avnei Nezer notes that this is true only when he rents a specific room, apartment or house. However, a patient in a hospital or rehab program is entitled to a bed only somewhere in the facility, and the hospital may move him to a different room without obtaining his agreement. Thus, he certainly has no ownership that requires him to have a mezuzah on the door.

In addition, if a tenant’s obligation to put up a mezuzah is a rabbinic requirement, it is because his use of the property it similar to that of an owner. Someone “dwelling” in a hospital can never be viewed as an owner or as having ownership. Therefore, the Avnei Nezer concludes that a patient in a hospital has no requirement to have a mezuzah on the door. (See also Shu”t Chayim Sha’al #22, who reaches the same conclusion.)

Mezuzah Rewards

Aside from fulfilling a mitzvah commanded by Hashem, the mitzvah of mezuzah serves to remind us constantly of His Presence, every time we enter and exit our houses. In addition, the Gemara teaches that someone who is meticulous in his observance of the laws of mezuzah will merit acquiring a nice home (Shabbos 23b). We thus see that care in observing this mitzvah not only protects one’s family against any calamity, but also rewards one with a beautiful domicile. May we all merit being careful, always, in our observance of the laws of mezuzah and the other mitzvos, and reaping all the rewards, both material and spiritual, for doing so!




Using Hashem’s Name

Question #1: Nasty Neighbor

Mrs. Goodhearted asks: “I have a neighbor who seems a bit disturbed and often spews out abusive invective against me. I am concerned that her cursing may bring evil things upon me. What should I do?”

Question #2: A Friend in Vain

Mr. Closefriend inquires: “A close friend of mine often makes comments like ‘for G-d’s sake,’ which I know are things that we may not say. I wanted my friend to be one of the witnesses at my wedding, but an acquaintance mentioned that my friend may not be a kosher witness, because he uses G-d’s Name in vain. Is this really true?”

Answer:

This week’s parshah, Va’eschanan, mentions several mitzvos that involve respecting the sanctity of Hashem’s name, including not swearing falsely and not cursing people. This provides an opportunity to study many of the laws about oaths, curses, and the proscription against taking Hashem’s name in vain. (For clarification: although both “swear” and “curse” are often used to mean “speaking vulgar language,” for this entire article I will not be using these words in this sense, but will use “swear” in the sense of “taking an oath,” and “curse” to mean “expressing desire that misfortune befall someone.”)

The Rambam counts a total of thirteen different mitzvos, ten mitzvos Lo Saaseh and three mitzvos Aseh, that involved oaths and curses. The ten Lo Saaseh prohibitions are:

1. Not to break an oath or commitment that one has made. (The Torah’s commandment concerning this law is located at the beginning of Parshas Matos. It is counted and discussed in the Rambam’s Sefer Hamitzvos as Lo Saaseh #157 and in the Sefer Hachinuch as Mitzvah #407.)

2. Not to swear falsely (Sefer Hamitzvos, Lo Saaseh #61; Sefer Hachinuch, Mitzvah #227). This is derived from the words, lo sishav’u bishmi lashaker, “you shall not swear falsely in My name,” which appear in this week’s parshah.

3. Not to deny falsely, with an oath, that one owes money. This mitzvah is also located in this week’s parshah and is derived from the words lo seshakru ish ba’amiso, “do not lie to your fellowman,” which Chazal interpret as a prohibition against swearing a false oath denying that one owes money (Bava Kama 105b; Sefer Hamitzvos, Lo Saaseh #249; Sefer Hachinuch, Mitzvah #226).

4. Not to swear an oath that has no purpose (Sefer Hamitzvos, Lo Saaseh #62; Sefer Hachinuch, Mitzvah #30). This mitzvah is derived from the words of the Aseres Hadibros, you shall not take the Name of Hashem, your G-d, in vain.

5. Not to cause someone to swear in the name of an idol (Sefer Hamitzvos, Lo Saaseh #14; Sefer Hachinuch, Mitzvah #86). This mitzvah is derived from the words vesheim elohim acherim… lo yishama al picha, “You should not cause the names of other gods to be used in an oath,” in Parshas Mishpatim (23:13; see Sanhedrin 63b).

6. Not to curse Hashem (Sefer Hamitzvos, Lo Saaseh #60; Sefer Hachinuch, Mitzvah #70).

7. Not to curse one’s parents (Sefer Hamitzvos, Lo Saaseh #318).

8. Not to curse the king of the Jewish people or the head of the Sanhedrin, who is called the Nasi (Rambam, Hilchos Sanhedrin 26:1; Sefer Hamitzvos 316; Sefer Hachinuch, Mitzvah #71). This mitzvah is derived from the words venasi be’amecha lo sa’or in Parshas Mishpatim.

9. Not to curse a dayan, a judge presiding over a beis din proceeding (Sefer Hamitzvos, Lo Saaseh #315; Sefer Hachinuch, Mitzvah #69; Rambam, Hilchos Sanhedrin 26:1). This mitzvah is derived from the words Elohim lo sekaleil in Parshas Mishpatim.

10. Not to curse any Jew (Rambam, Hilchos Sanhedrin 26:1; Sefer Hamitzvos 317; Sefer Hachinuch, Mitzvah #231). This mitzvah is derived from a verse in Parshas Kedoshim, since it is included under the Torah prohibition do not curse a deaf person. As the Sefer Hachinuch explains the mitzvah, “do not curse any Jewish man or woman, even one who cannot hear the curse.”

Four in one

We should note that the above-mentioned mitzvos are not mutually exclusive, and one could violate several of them at the same time. For example, the son of the Nasi of the Sanhedrin who curses his father violates four different Lo Saaseh prohibitions: for cursing: (1) a Jew, (2) his father, (3) a dayan, (4) the head of the Sanhedrin (Sefer Hachinuch, Mitzvah #231).

As we will see shortly, violating most of these prohibitions is punishable by 39 malkus, lashes (Temurah 3b). This is highly surprising, since violating a Torah mitzvah through speech does not usually lead to a sentence of malkus (Temurah 3a). However, the laws of swearing and cursing are exceptions to the usual rule, which demonstrates the severity of these prohibitions.

Three positive mitzvos

In addition to the ten Lo Saaseh mitzvos that this topic covers, there are also three positive mitzvos involved:

1. A mitzvah to fulfill something that one has accepted to do (located at the beginning of Parshas Matos; Sefer Hamitzvos, Mitzvas Aseh #94; Sefer Hachinuch, Mitzvah # 406).

2. Fearing Hashem, which includes treating His Name with respect (see Temurah 4a).

3. The Rambam counts a positive mitzvah of swearing, which we will soon explain (Sefer Hamitzvos #7).

What does a curse accomplish?

At this point, I would like to explain a very important and often misunderstood concept. When someone curses an innocent person, the curse causes no harm. To quote Rav Moshe Feinstein, “When someone curses his fellowman, the prohibition is not because it causes harm to the other person. First of all, Heaven will ignore a curse that was performed in violation of the Torah. Second of all, a curse without basis does not bring harm.” Rav Moshe refers to the verse in Mishlei (26:2): an unjustified curse affects only the one who uttered it. Rav Moshe continues “a curse of this nature causes no harm” (Shu’t Igros Moshe, Orach Chayim 3:78).

Furthermore, even the curses and evil intended by sorcerers (kishuf) do not affect Jews, since we are directly connected to Hashem, and therefore not affected by kishuf (Ramban, Bamidbar 24:23).

Rav Moshe concludes that one who cursed a fellow Jew is punished because he embarrassed someone, and because he acted with disdain for Hashem’s Holy Name. However, Rav Moshe explains that there is a difference in halachah between cursing someone else and cursing oneself. Someone who curses himself indeed will bring upon himself punishment and harm (Shu’t Igros Moshe, Orach Chayim 3:78).

Based on Rav Moshe’s analysis of the mitzvah, we can now understand several other halachos of cursing. Cursing a child old enough to understand what was said is liable to the same level of punishment as cursing an adult. This is because it is prohibited to hurt a child’s feelings, just as it is forbidden to insult an adult. However, cursing a dead person is exempt from the punishment of malkus (Toras Kohanim on Parshas Kedoshim; Rambam, Hilchos Sanhedrin 26:1-2). This is because the dead feel no pain when someone curses them. (There is one situation in which cursing a dead person is indeed punished — cursing one’s parents after their demise is a fully culpable crime [Sanhedrin 85b, quoted by Kesef Mishneh, Hilchos Sanhedrin 26:2].)

Cursing without using Hashem’s Name

Cursing a person without using G-d’s Name does not incur the punishment of malkus. However, the beis din has the halachic right and responsibility to punish the offender in a way that they feel is appropriate (Rambam, Hilchos Sanhedrin 26:5).

Having heard Rav Moshe’s explanation of the mitzvah, we can now explain why someone who curses without using Hashem’s Name is not liable. The most severe violation, which incurs the punishment of malkus, is violated only if one committed both aspects of the sin – he demonstrated total disregard both for G-d and for man, by desecrating G-d’s Name and by offending someone. However, one who cursed without offending anyone living, or who cursed without desecrating Hashem’s Name is spared from receiving corporeal chastisement, because his infringement was not of the highest level.

At this point, we can address our first question above. Mrs. Goodhearted asked: “I have a neighbor who seems a bit disturbed and often spews out abusive invective against me. I am concerned that her cursing may bring evil things upon me. What should I do?”

I would advise her to avoid her neighbor when she can, but for a different reason. Mrs. Goodhearted is concerned that she will be damaged by the neighbor’s curses – but according to Rav Moshe, there is no cause for concern. However, if her neighbor is sane enough to be responsible for her actions, the neighbor will be punished for cursing and for hurting people’s feelings, and Mrs. Goodhearted should try to avoid giving her neighbor an opportunity to sin.

Cursing in English

Does cursing using G-d’s Name in a language other than Hebrew violate this prohibition? The Rambam rules that cursing someone using a vernacular Name of G-d is also prohibited min haTorah and chayov malkus (Hilchos Sanhedrin 26:3; see also Shulchan Aruch, Choshen Mishpat 27:1).

What type of oath?

Having discussed the prohibitions against cursing one’s fellow Jew, let us now discuss the prohibitions against swearing in vain. What type of oath did the Torah prohibit taking?

In general, the Torah prohibits taking any type of oath, even when the oath is true, because it is an oath that has no purpose (Temurah 3b). For example, someone who swears truthfully that he did not eat anything today violates the Lo Saaseh, you shall not take Hashem’s Name in vain, since this oath accomplishes nothing.

Someone who swears an oath that is false, such as one who falsely swears that he did not eat breakfast that day, violates both the proscription for swearing a false oath and also for swearing a vain oath, since it serves no purpose.

Two exceptions

There are two instances when the Torah permits someone to swear a truthful oath (Temurah 3b). This is derived from the fact that the Torah says in two different places (Devarim 6:13; 10:20), uveshmo tishavei’a, “in His Name, you may swear.” We will see shortly that the halachic authorities dispute whether the words uveshmo tishavei’a should be translated as “in His Name, you shall swear” or as “in His Name you may swear.”

Encouraging mitzvah observance

What are the two exceptional instances in which the Torah permits someone to swear an oath?

(1) The first is when someone swears an oath as an incentive to support his efforts at growth and self-improvement. One may take an oath to encourage himself to perform a mitzvah that he might otherwise not perform (Temurah 3b). For example, one may swear to donate to tzedakah or to say a chapter of Tehillim every day.

Bear in mind that, in general, although permitted, it is not a good idea to create oaths or vows upon oneself (see Nedarim 22a). Someone who takes an oath or a vow is now bound to observe it, and failure to do so is a grievous sin. Therefore, although reciting such an oath (that has a purpose) does not violate the Torah’s prohibition against taking Hashem’s Name in vain, it is usually recommended not to do so.

A better approach is to accept the new practice bli neder, which means that one is hoping and planning to observe the new practice, but without the obligation and inherent problem of making it an obligation on the level of a shavua or a neder, a vow.

When required in litigation

(2) The second situation in which the Torah permitted swearing an oath is within the framework of halachic litigation. There are instances in which the psak halachah, the final ruling of a beis din, requires a litigant to take an oath in order to avoid paying or to receive payment. When the beis din rules that one is required to take an oath, the Gemara (Temurah 3b) concludes that the person swearing does not violate the Torah’s prohibition against swearing unnecessarily.

Permitted or a mitzvah?

It is important to note that in this last situation, the authorities dispute whether the halachah is that one may take an oath, but there is no mitzvah to do so, and we would discourage the oath, or whether in this situation it is a mitzvah to swear an oath. The Rambam (Hilchos Shavuos 11:1 and Sefer Hamitzvos, Positive Mitzvah #7) contends that someone who swears because of a din Torah fulfills a positive mitzvah of the Torah, uveshmo tishavei’a, “in His Name, you shall swear.” Others contend that this verse means simply “in His Name you may swear,” but that there is never a mitzvah of taking an oath (Ramban, Sefer Hamitzvos, Positive Mitzvah #7). Still others contend that even though the verse says, “in His Name you may swear,” this does not mean it is permitted to swear, but that one who swears is not punished for taking an oath (Shu’t Chasam Sofer, Choshen Mishpat #90). Thus, this last authority contends that one should avoid taking an oath even under these circumstances, and thereby explains why the custom is to pay large fees or fines rather than swear an oath that is fully truthful.

Testimony without oaths

It is worthwhile to note that testimony in halachah does not require one to swear an oath. This can be juxtaposed to the secular legal system, in which one must take an oath or pledge for one’s testimony to be considered binding. A Jew’s word is sacrosanct, and any time he testifies or makes a claim in court, whether as a litigant, as a witness or as an attorney, he is halachically bound to tell only the truth. It is therefore a serious infraction of the Torah for someone to file a legal brief including statements that are not true. In addition, filing these statements may involve many other violations including loshon hora, rechilus, motzi shem ra, machlokes and arka’os.

Oath without G-d

Does swearing an oath without mentioning Hashem’s Name qualify as an oath? This question is discussed extensively by the Rishonim, who conclude that someone who commits himself to doing (or refraining from doing) something, using terminology that implies an oath, is now bound to observe the pledge, whether or not he mentioned Hashem’s Name (Rambam, Hilchos Shavuos 2:4; Rashba, Shavuos 36a; Shulchan Aruch, Yoreh Deah 137:1). Nevertheless, according to most authorities, swearing an oath that mentions Hashem’s Name is a more serious violation of the Torah (Rambam, Hilchos Shavuos 2:4).

Taking Hashem’s Name in vain

It is also prohibited min haTorah to use Hashem’s Name unnecessarily, even when one is not taking an oath. This is prohibited as a mitzvas Aseh, since it violates the words of the Torah, es Hashem Elokecha tira, “You shall fear Hashem your G-d” (Devarim 6:13). Thus, it is prohibited min haTorah for someone to say as an expletive, “For G-d’s sake,” “Oh, my G-d in Heaven” or similar exclamations.

In this context, the following halachic question is raised:

“Is there anything wrong with what the common folk say: ‘Just as G-d is True, so this is true!’ Does halachah consider this to be an oath?”

This question, which may sound very contemporary, is discussed almost five hundred years ago by the Radbaz (Shu’t #17), who writes that these types of declarations are very serious infractions of the Torah and are considered blasphemous. Anyone who makes such statements should be severely reprimanded and punished, so that he realizes how sinful this is and will take it upon himself to do teshuvah for his crime. The Radbaz states that it is very wrong to compare the existence and truth of anything else to Hashem’s existence and truth. Furthermore, someone who makes such a declaration about a falsehood denies the Creator and forfeits his share in the World to Come.

A Friend in Vain

At this point, we have enough introductory information that we can examine Mr. Closefriend’s question posed above:

“A close friend of mine often makes comments like ‘for G-d’s sake,’ which I know are things that we should not say. I wanted my friend to be one of the witnesses at my wedding, but an acquaintance mentioned that my friend may not be a kosher witness, because he uses G-d’s name in vain. Is this really true?”

Although Mr. Closefriend should convince his close friend that this callous referring to Hashem and His Holy name is prohibited, it does not qualify as making an oath in vain, but as a violation of the Mitzvas Aseh of fearing Hashem (Temurah 4a). As such, there is a difference in halachah.

The halachah is that there are two categories of people who are disqualified as witnesses because they are sinners. One is someone who has demonstrated that he will compromise halachah for monetary benefit (Rambam, Hilchos Edus 10:4). The other category is someone who violates a sin so severe that, during the time of the Sanhedrin, he could be punished with malkus (Rambam, Hilchos Edus 10:1-3; Sefer Hamitzvos, Lo Saaseh 286; Sefer Hachinuch, Mitzvah 75). Such individuals may not serve as a witness to a wedding ceremony. Similarly, someone who curses people using G-d’s Name or one who swears is not a valid witness at a wedding ceremony. However, although it is highly sinful to violate mitzvos Aseh, one who violates them is not invalidated as a witness.

Conclusion

In addition to the above-mentioned reasons why one should be careful how and when one uses Hashem’s Name, the Sefer Hachinuch (Mitzvah 231) mentions the following reasons not to curse people. Cursing creates conflict, something we certainly want to avoid. Furthermore, we want to train ourselves not to be vengeful, and to learn to develop our self-control.



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Get Rid of the Stuff!

or

The Vanishing Importer and Other Tales

Dovid calls me with following shaylah:
”Several years ago, Yonasan asked permission to store some items in my basement for a few months. The items are still in my basement, and I have no idea where Yonasan now lives. I have tried to contact him without any success. How do I get rid of his stuff? I need the space for other things.”

People have often asked me this or similar questions, where someone ends up with someone else’s unwanted property on their premises. The issue is that two people’s rights are in conflict with one another. On the one hand, Dovid has a right to regain the use of his basement; yet, on the other hand, we cannot ignore Yonasan’s ownership rights.

We will see that although the halachos in these cases are complicated, we will be able to understand some of the rules involved.

In order to answer Dovid’s shaylah, we need to determine several halachic factors:

1. Was Dovid originally responsible for taking care of Yonasan’s items?

2. Assuming he was once responsible, is he still responsible?

3. If we assume that he is no longer responsible, or was never responsible, may he remove the items from his premises? What may he do with them if he removes them?

The Tanna’im (Bava Kamma 47) dispute whether or not granting someone permission to place belongings on my premises makes me automatically a shomer chinam, an unpaid watchman. The Sages contend that when I tell someone that he can place his items in my yard, the unstated assumption is that I am accepting responsibility for the items. If the item is subsequently lost or stolen through the homeowner’s negligence, he must pay for it, even though he was not paid to guard the item. Rebbe disagrees, contending that permitting someone to place items on my property is not equivalent to accepting responsibility for them.

Most halachic authorities conclude that if one offered to store items in his house, he has assumed some level of responsibility, but if he offered to store them in his yard, he has not assumed responsibility (Shach, Choshen Mishpat 291:8; cf., however Machanei Efrayim, Shomrim #4, who rules that he is not responsible in the house either). Thus, when Yonasan placed his items in Dovid’s basement, Dovid became a shomer chinam on those items, and is obligated to pay if he is negligent in taking care of them. As a result, if Dovid left the house unlocked one day and someone entered and stole Yonasan’s property, Dovid would be obligated to compensate Yonasan. By the way, Dovid could avoid this responsibility by simply telling Yonasan that although he may place items in Dovid’s house, Dovid is assuming no responsibility and is not a shomer.

HOW LONG DOES DOVID REMAIN RESPONSIBLE?

In our case, Yonasan asked permission to store his items in Dovid’s house “for a few months.” Assuming that Dovid really believed that Yonasan would remove his items at that time, he is no longer a shomer when the time is over and is no longer responsible for negligent damages (Machanei Efrayim, Shomrim #19). However, this does not mean that Dovid can now remove Yonasan’s items and place them on the street, because that would be considered as damaging Yonasan’s property, which is prohibited.

Let us compare this case to a fascinating anecdote of the Gemara:

THE CASE OF THE HAPLESS LADY

The Gemara (Bava Metzia 101b) relates the following episode. A businessman, whom we will call Mr. Wine, purchased a shipload of kosher wine and could not find a place to store it. When he asked a local woman, Ms. Storage, if he could rent warehouse space, she was initially unwilling to rent him the space, and only agreed after he consented to marry her. After this “marriage of convenience,” Mr. Wine promptly divorced Ms. Storage. She retaliated by selling some of the wine and using the proceeds to hire porters to move the wine into the street. When Mr. Wine summoned Ms. Storage to a din Torah for selling his wine to pay for the portage, Rav Huna, the son of Rav Yehoshua, ruled that since he tricked her into storing his goods, he had no monetary claim against her, and that she indeed had the legal right to remove the wine from her premises at his expense. As we will see, it is unclear whether she could remove the wine from her premises if this would cause the wine to be stolen or damaged.

In the above situation, because Mr. Wine discovered immediately what she had done, he suffered no further loss. Would Ms. Storage have been liable to pay if the wine was stolen before Mr. Wine discovered that it was in the street?

The Rosh rules that although Ms. Storage may remove the wine from her premises, she is liable for any loss that occurs until she notifies Mr. Wine that she has removed the wine. Therefore, the Rama rules that she must notify Mr. Wine before removing his wine from her premises.

Obviously, this ruling places Ms. Storage in an unenviable position if Mr. Wine leaves town and cannot be contacted. Although he tricked her into storing her goods, she cannot remove his items and place them where they may be damaged.

Not all authorities agree with the Rosh’s opinion. The Taz (Choshen Mishpat 319) contends that if someone stored property on your premises without your permission and it is in a place that you need, you may remove his property without being concerned about the loss he suffers as a result. (This is based on his understanding of the Rambam; note that some other poskim interpret the Rambam differently.) According to the Taz’s approach, Ms. Storage could have placed the wine in the street without notifying Mr. Wine, without any financial responsibility or risk. The line of reasoning behind the Taz’s approach is interesting.

The Gemara (Bava Kamma 27b) rules that “avid inish dina linafshei,” a person has the right to protect his own property. Thus if a person or his animal is damaging my property, I may use necessary force to remove him or his animal from my property.

Similarly, the Taz contends that one may remove items placed in my property if I do not want them there. However, Rav Moshe Feinstein (Shu’t Igros Moshe, Choshen Mishpat 2:56) appears to disagree with the Taz, contending that one does not have the right to remove someone else’s property and place it in the street. Rav Moshe’s responsum is in the context of a different, interesting case.

THE CASE OF THE VANISHING IMPORTER

A distributor asked Rav Moshe the following shaylah: “An importer/supplier asked me to store some merchandise for a couple of months and I agreed; but I neglected to get his address and phone number. A year later, the importer returned, very apologetically explaining that he was delayed and thought he would return sooner. In the middle of the conversation, the importer said, ‘I must take care of something. I’ll be back in a few minutes.’ He disappeared once again and has not returned since. It is now months later and I need to make room for my own merchandise. What can I do with his property?”

Rav Moshe compares the distributor’s predicament to the Case of the Hapless Lady. He contends that even in that case, one may not remove the wine to a place where it could be stolen unless one first notifies the owner. He further concludes that if Ms. Storage cannot locate Mr. Wine, she may not move his wine to the street. However, Rav Moshe rules that she could move his wine to an alternative warehouse and sell some of the wine to pay the portage and rent. Similarly, Rav Moshe rules that in the Case of the Vanishing Importer, the distributor may sell some of the importer’s goods to pay the moving costs and rent a different warehouse.

The Pischei Choshen (Hilchos Pikadon:7:ftn6) disagrees with Rav Moshe, contending that instead of selling some of the merchandise to rent storage space, one should sell all of the merchandise and hold the money for the importer’s return. (Certain other details must be followed in carrying out this sale.) Both approaches assume that one may not sell the importer’s merchandise if the distributor has available storage space, but dispute which approach is better if the distributor has no available space. Even though the importer took unfair advantage, the distributor may not treat the importer’s possessions with disregard.

Rav Moshe’s dispute with the Pischei Choshen what to do with the importer’s goods hinges on which of the following two rulings applies in our case. In the Case of the Hapless Lady that we mentioned above, the Rambam rules that although Ms. Storage need not notify Mr. Wine, it is commendable (midas chasidus) for her to inform Beis Din that she will be removing his wine from her premises. The Beis Din then proceeds to sell some of the wine and thereby pay for the portage and storage. Rav Moshe explains that Ms. Storage may do this herself if she wants, but that if she does not want to bother, all she is required to do is to notify Beis Din that she will be removing the wine from her premises. If Mr. Wine cannot be located, either Beis Din or Ms. Storage may remove his wine to a secure warehouse, paying for the portage and storage from the merchandise.

The Pischei Choshen contends that one sells the merchandise to pay rent only when its owner knew he would be paying rent until he returns — therefore he has no major unexpected loss from using an alternative warehouse. However, this is qualitatively different from the Vanishing Importer who may not have realized that he would be paying rent. The Pischei Choshen therefore compares the Case of the Vanishing Importer to a different Talmudic discussion where a shomer is responsible for produce whose owner is unaware that it has begun to spoil. In this case, since the owner will suffer from an unexpected major loss, the shomer sells the items under the supervision of a Beis Din to try salvaging whatever he can, and then the shomer holds the money for the owner until his return (Bava Metzia 38a). (The halacha is that the shomer may borrow the money, obviously interest free, until the owner returns [Shulchan Aruch, Choshen Mishpat 292:19].)

The Pischei Choshen contends that since the distributor is not obligated to store the importer’s items at a loss, and there is no place to store them for free, we are left with two possible courses of action, one of which we will eliminate:

1. Rent a storage facility paid for by gradually selling the merchandise. This will eventually erode the remaining value.

2. Sell the merchandise, thus recouping some value for the importer.

Since we cannot contact the importer, or know when he will return, the Pischei Choshen elects the second option as the correct halachic approach.

In Dovid’s original case, Yonasan had asked him to store his items for a few months, a timetable that passed several years ago. Thus, one can compare his predicament to the case of the Vanishing Importer, which would allow Dovid to follow one of the suggested procedures to save Yonasan from a loss: either to sell some of the property and thereby rent storage space (Rav Moshe’s approach), or to sell it all and hold the money (Pischei Choshen’s approach).

However, this is true only if the loss Yonasan would suffer is because Dovid must have the space available for some other purpose. If Dovid is simply annoyed by the cluttered basement, he has no halachic basis with which to remove Yonasan’s property.

Another complication usually occurs in these situations: If Dovid did not specify the length of time he is lending use of his premises, he is presumably still the shomer of Yonasan’s property and is still liable for any negligence, and certainly would be liable if he damaged the property. This is qualitatively different from the Case of Hapless Lady and the Case of the Vanishing Importer, where the homeowner is not a shomer.

The Pischei Choshen (Hilchos Pikadon:7:ftn5) asks whether in a case like this Dovid is required to be a shomer forever.

I attempted to find a source that would relieve Dovid of his responsibilities in this very common case. I have thus far been unsuccessful. The closest parallel I have found is the following case:

Yehudah agreed to be a shomer on someone’s property; now he wants to leave town and cannot take the item with him. What does he do? The Rambam (Hilchos She’eilah 7:12) rules that agreeing to watch an item does not make you a prisoner in your home; you have a right to leave. What does Yehudah do? He brings the item to Beis Din which then assigns it to the care of a reputable person.

However, this ruling is applicable only if the shomer wants to leave town and can no longer supervise the item. I have found no other halachic source that discusses how one can terminate one’s shmirah of an item when the shomer remains in town, and the owner is unaware that one wants to terminate responsibility.

THE CASE OF THE CARRY-ON LUGGAGE

This leads us to the following shaylah. What is the halacha in the following situation? At the airport gate, you agree to watch someone’s carry-on bag so he can use the comfort facilities. Forty-five minutes later, your plane is boarding, and the bag owner has not reappeared. Must I miss my flight because I agreed to watch his bag? What do I do with the bag?

In this carry-on case, I think one can assume that when someone asks me to watch an item at an airport gate, he knows that I can watch the item for only a brief period of time. If one needs to leave and the bag owner has not returned, I would recommend alerting airport personnel and letting them decide what to do, and at the same time leaving a note where you were sitting. Abandoning the bag will probably cause it to be stolen or impounded and destroyed by airport security, and I suspect that airport Lost and Found is also not a good alternative.

By now, I think we have become convinced of the necessity for clarifying our responsibilities in advance when someone asks us to watch their item or leave something at our house. Of course, realizing the complications that may result should not cause us to reconsider doing chesed for people; simply, we should be certain to do it in such a way that we do not create unnecessary entanglements.




Double-Duty Soups, Onerous Onions, and Nat bar Nat, or Preparing Milchig and Fleishig for Shavuos

There is a widespread custom to eat at least some milchig meals on Shavuos. A housewife asked me this question: since this year Shavuos follows on the heels of Shabbos, and she has no large pareve pots, is there a way for her to prepare side dishes or desserts that she may then serve with both her meat and her dairy meals? In response, I bring you:

Double-Duty Soups, Onerous Onions, and Nat bar Nat, or Preparing Milchig and Fleishig for Shavuos

Question #1:

Rachel asks her Rav:

“Someone told me that I may cook a pareve soup in my fleishig pot and then serve it with both milchig and fleishig meals. Can this possibly be true?”

Question #2: Reuven wants to know:

“May I eat the leftover kugel alongside my milchig lunch?”

Question #3:

Mrs. Goldberg calls with the following question:

“My neighbor, Mrs. Dwek, told me that she cooks her rice and other vegetables in her dairy pots and then serves them with either meat or dairy meals. I was taught that this is strictly forbidden. May I trust the kashrus in her house? She seems more knowledgeable and careful about halacha than I am.”

To answer these questions properly, we need to study the following halachic areas:

I.          What is the status of pareve food cooked in milchig or fleishig pots?

II.         The rules of pungent foods.

III.       Why we wait after eating fleishig before eating milchig.

We will also acquire a glossary of several halachic terms, such as nat bar nat, davar charif, and eino ben yomo. I will explain each of these terms as we come to them.

I.          What is the status of pareve food cooked in milchig or fleishig pots?

When the Torah prohibited eating meat cooked in milk, it also prohibited eating food that contains the flavors of both meat and dairy. For example, if one cooked meat and then dairy in the same pot on the same day, meat flavor goes into the dairy food – thus creating a prohibited mixture of meat and milk (Shulchan Aruch Yoreh Deah 93:1).

Chazal extended the Torah’s proscription against eating meat and milk cooked together to include eating meat and milk simultaneously, even when they are not cooked together (Shulchan Aruch Yoreh Deah 88:1). The issue that we will discuss is:

To what extent did Chazal prohibit the mixture of milk and meat? Did they prohibit eating pareve food cooked in fleishig pots together with dairy? To answer this question, we need to be introduced to the concept called nat bar nat.

NAT BAR NAT

The Gemara (Chullin 111b) states that, under certain circumstances, fish prepared in fleishig equipment may be eaten with dairy food. The poskim call this phenomenon nat bar nat, literally, a taste that is son of a taste. This means that since the meat taste has undergone two steps, first into the equipment (the first taste) and then back into the fish (the “son” of the taste), the residual “meat” taste is too insignificant to be considered meat. This rule also applies to the use of dairy equipment; that is, pareve food prepared in dairy equipment may be eaten with meat.

WHEN DOES THIS APPLY?

Most Rishonim contend that food cooked in a meat pot may be eaten with dairy, provided the meat equipment was clean from significant meat residue. Following their approach, a pareve soup cooked in a clean fleishig pot may be eaten together with dairy foods even if the pot was used to cook meat immediately before the pareve soup. Similarly, if one cooked dairy, emptied out the pot, and then immediately cooked vegetables in the same pot using exclusively pareve ingredients, these vegetables may be eaten with meat. The Shulchan Aruch (Yoreh Deah 95:1) follows this position, and this is the accepted ruling among Sefardim. However, many authorities rule that this is permitted only after the fact, but that one may not cook vegetables in a fleishig pot intending to eat or serve it with milchig food and vice versa.

Other authorities contend that nat bar nat applies only to pareve food placed in a kli sheni, that is, in a bowl in which hot meat had been placed after being removed from the fire. According to this approach, nat bar nat applies only if one cooked pareve food in a pareve pot and then emptied the very hot contents into a fleishig pot that was not heated or into fleishig serving vessels. However, fish or vegetables cooked in a pot in which meat was cooked the same day may not be eaten with dairy, nor can fish or vegetables cooked in a pot in which dairy was cooked the same day be eaten with meat (Rivan, quoted by Tosafos, Chullin 111b).

The Rama (ad loc.) follows this approach, ruling that one should not eat pareve food cooked in a meat pot together with dairy, or pareve food cooked in a dairy pot together with meat. However, the Rama accepts that one may eat such fish or vegetables which were cooked in a dairy pot on fleishig dishes and with fleishig utensils, and that one may eat them before and after eating meat. He prohibits eating these vegetables only together with meat. This is the approach followed by Ashkenazim.

MORE THAN 24

Even according to the Rama, pareve food cooked in a pot that was last used for meat more than 24 hours previously may be eaten with dairy. The reason for this is that, once 24 hours have passed, the meat flavor absorbed by the pot no longer imparts a pleasant taste – and, therefore, the flavor transmitted to the pareve food is no longer considered “meat.”

A vessel that has not been used for hot food for more than 24 hours is called eino ben yomo, which I will translate as not used today.

The authorities dispute whether one may lechatchilah cook pareve food in an eino ben yomo fleishig pot in order to eat it with milchig.

Let us now discuss Rachel’s question raised above: “Someone told me that I may cook a pareve soup in my fleishig pot and then serve it with both milchig and fleishig meals. Can this possibly be true?”

According to what we have said so far, if Rachel already cooked her soup, she could serve it at a milchig meal, but not at the same time that she has milchig food on the table. If she is sfardi, then most authorities rule that she could even have milchig food on the table. However, it is important to note that many authorities rule that one may not plan one’s menu this way, and that the heter of nat bar nat is only after the fact.

There is also another very important caveat that we will now explain – all this assumes that Rachel’s soup does not include any pungent ingredients that may already have become fleishig.

A PUNGENT EXCEPTION

Does the lenience of nat bar nat apply whenever one uses fleishig equipment to prepare pareve food? No, there are some exceptions. One major exception is that the rule of nat bar nat does not apply to what halacha calls a davar charif, a pungent food, such as radishes, onions, garlic and lemons. Pungent foods intensify flavor and therefore transmit flavor in ways that bland items do not. (For halachic purposes, we refer to any non-pungent food as “bland.”)

There are several ramifications to this law of pungent foods, as we will soon see.

A SHARP BACKGROUND

The Gemara (Chullin 111b) prohibits eating dairy together with a radish sliced by a knife that had previously been used to cut meat, but permits eating bland food sliced by the same knife. Shulchan Aruch (Yoreh Deah 96:1) rules that the radish is fleishig, because the meat flavor absorbed into the knife transferred into the radish and is still considered a strong meat flavor. We do not consider the knife to be a nat bar nat, notwithstanding the fact that the flavor of the meat was first absorbed into the knife and only then transferred from the knife into the radish. The reason is that pungent foods, such as radishes, intensify flavor, causing the meat flavor in the radish to remain strong enough to still be considered meat.

However, although one should not eat these pungent items together with dairy ingredients, they do not become so “meaty” as to require six hours after eating them. One should be careful not to eat them together with dairy, but one may eat dairy immediately after eating the onions or other pungent foods.

MORE THAN 24

Notwithstanding the fact that pareve food cooked in an eino ben yomo fleishig pot may be eaten with dairy, the Rama concludes that the lenience of eino ben yomo does not apply to pungent foods. Thus, someone who fried onions in an eino ben yomo fleishig pan must treat the onions as fleishig.

Therefore:

You sliced an onion or a lemon with a fleishig knife. Since these items are pungent, they have absorbed enough meat flavor to be considered fleishig and cannot be mixed with dairy.

COMMON KITCHEN MIX-UPS

From my experience, the most common type of kitchen mix-up involves the misuse of onions sliced with a fleishig or milchig knife. It is for this reason that I highly recommend a family kitchen policy of slicing all onions, lemons, radishes and garlic exclusively with pareve knives.

At this point, I want to return to Rachel’s question: All that we permitted Rachel to do assumes that she did not use pungent ingredients, such as onions or garlic, in her soup.

Should she want to add onions to her soup, she should be careful to slice them with a pareve knife. Should she want to sauté them first, and she has no pareve pot or pan large enough for the soup, she has the following option: she could first sauté her onions in a pareve pot. Once the onions are cooked, they lose their pungency; if they are now added to the bland ingredients in the fleishig pot, they will no longer absorb fleishig taste from the pot, and her soup will remain pareve. (Onions are interesting, because when raw, they qualify as davar charif, although they lose their pungency quickly when they are cooked.)

At this point, we can also answer the other two questions asked above:

“May I eat the leftover kugel alongside my milchig lunch?”

The answer is that if the pot in which the kugel was made was fleishig and ben yomo, then one should not eat the kugel at the same moment that one is eating actual dairy products, although one may eat it using dairy equipment.

“My neighbor, Mrs. Dwek, told me that she cooks her rice and other vegetables in her dairy pots and then serves them with either meat or dairy meals. May I trust the kashrus in her house?”

The answer is that what Mrs. Dwek is following a psak that, according to some authorities, is perfectly acceptable for Sfardim. An Askenazi should not do this lichatchilah. Either way, you may certainly trust her kashrus.