How Does Someone Convert to Judaism?

When our ancestors accepted responsibility to observe the Torah, they did so by performing bris milah, immersing in a mikveh, and offering a korban. In the same way, a non-Jew who chooses to join the Jewish people is entering the same covenant and must follow a similar procedure (Kerisus 9a).

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

DEFINITION OF A JEW

To the non-Jewish or non-observant world, the definition of a Jew is based on sociological criteria. But to the Torah Jew, the definition of a Jew is someone who is a member of a people who are obligated to fulfill all of the Torah’s commandments. For this reason, it is axiomatic that no one can become Jewish without first accepting the responsibility to observe mitzvos (kabbalas mitzvos). This concept, so obvious to the Torah Jew, is almost never appreciated by the non-observant. Someone who does not (yet) observe mitzvos himself usually does not appreciate why observing mitzvos is imperative to becoming Jewish. This is why a not-yet-observant Jew often finds our requirements for giyur to be “unrealistic” or even “intolerant.” However, in reality, attempting to bend the Torah’s rules reflects intolerance, or, more exactly, a lack of understanding. The Torah Jew realizes that the basic requirement for becoming a Jew is accepting Hashem’s commandments, since a Jew is, by definition, someone who is committed to leading his life in its every detail according to the laws of the Torah.

DISCOURAGE CONVERTS

As we all know, when someone requests to be converted to Judaism, we discourage him. As the Gemara (Yevamos 47a) says, if a potential convert comes, we ask him, “Why do you want to convert? Don’t you know that Jews are persecuted and dishonored? Constant suffering is their lot! Why do you want to join such a people?”

Why do we discourage a
sincere non-Jew from joining Jewish ranks? Shouldn’t we encourage someone to
undertake such a noble endeavor?

The reason is that, even if the potential convert is sincerely motivated, we still want to ascertain that he or she can persevere to keep the mitzvos, even under adversity. Although we can never be certain what the future will bring, by making the path to conversion difficult, we are helping the potential convert who might later regret his conversion, when the going gets rough. Because of this rationale, some batei din deliberately make it difficult for a potential convert, as a method of discouraging him. As the Gemara explains, we tell him, “Until now you received no punishment if you did not keep kosher. There was no punishment if you failed to observe Shabbos. If you become Jewish, you will receive very severe punishments for not keeping kosher or Shabbos!” (Yevamos 47a)

I have used a
different method of discouragement, by informing potential converts of the
seven mitzvos bnei Noach. In so doing, I point out that they can merit olam
haba without becoming obligated to keep all the Torah’s mitzvos. In this way, I
hope to make them responsible, moral non-Jews, without their becoming Jewish.

I once met a woman who
was enthusiastically interested in becoming Jewish. Although she was living in
a town with no Jewish community – she was keeping a kosher home!

After I explained the
mitzvos of bnei Noach to her, she insisted that this was not enough for her.
She wanted to be fully Jewish.

Because of her
enthusiasm, I expected to hear from her again. I was wrong. Perhaps her
tremendous enthusiasm petered out. Alternatively, and more likely, she found a
different way to consider herself Jewish, either on the basis of her
grandfather’s Judaism, or a “conversion” that was more “flexible.”

Had we accepted her
for conversion immediately, she would have become a sinning Jew, instead of a
very observant non-Jew, which is what she is now. These are the exact issues
that Chazal were concerned about. Therefore, they told us to make it difficult
for someone to become Jewish, to see whether his or her commitment survives
adversity. It was better that this woman’s enthusiasm waned before she became
Jewish than after she became Jewish and had no way out.

The following story from my personal experience is unfortunately very common. A gentile woman, eager to marry an observant Jewish man, agreed to fulfill all the mitzvos as a requirement for her conversion. (As we will point out shortly, this is not a recommended procedure.) Although she seemed initially very excited about observing mitzvos, with time she began to lose interest. In the end, she gave up observance completely. The unfortunate result is that she is now a chotei Yisrael (a Jew who sins).

MOTIVATION FOR
CONVERTING

We must ascertain that
the proposed convert wants to become Jewish for the correct reasons. If we
discern or suspect that there is an ulterior reason to convert, we do not
accept the potential convert, even if he is committed to observing all the
mitzvos.

For this reason, converts are not accepted at times when there is political, financial, or social gain in being Jewish. For example, no converts were accepted in the days of Mordechai and Esther, nor in the times of Dovid and Shelomoh, nor will geirim be accepted in the era of the Moshiach. During such times, we suspect that the convert is somewhat motivated by the financial or political advantages in being Jewish (Yevamos 24b). This applies even if we are certain that he will observe all the mitzvos.

Despite this rule, unlearned Jews created “batei din” during the reign of Dovid HaMelech and accepted converts against the wishes of the beis din hagadol (Rambam, Hilchos Issurei Bi’ah 13:15). There is much literature on whether these geirim are accepted, but, if indeed their conversion was sincere and afterward it is obvious that this is true, they will be accepted.

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

Because of this rule,
we do not accept someone who is converting because he or she wants to marry
someone who is Jewish, even if the convert is absolutely willing to observe all
the mitzvos (Yevamos 24b). I have seen numerous instances of non-Jews who
converted primarily for marriage and who agreed to keep all the mitzvos at the
time of the conversion. Even in the instances where mitzvos were indeed
observed initially, I have seen very few situations where mitzvos were still
being observed a few years (or even months) later.

GEIRUS WITH IMPROPER
MOTIVATION

What is the halachic
status of someone who went through the geirus process for the wrong reasons;
for example, they converted because they wanted to marry someone?

If the convert followed all the procedures, including full acceptance of all the mitzvos, the conversion is valid, even though we disapprove of what was done. If the convert remains faithful to Jewish observance, we will treat him with all the respect due to a Jew. However, before reaching a decision as to his status, the beis din waits a while, to see whether the convert is indeed fully committed to living a Jewish life (Rambam, Issurei Bi’ah 13:15-18).

However, someone who
is not committed to mitzvah observance and just goes through the procedures has
not become Jewish at all.

Jim was interested in “converting to Judaism” because his wife was Jewish, and not because he was interested in observing mitzvos. At first, he went to a Rav who explained that he must observe all the mitzvos, and certainly they must live within a frum community. This was not what Jim had in mind, so he went shopping for a “rabbi” who would meet his standards. Who would believe that there is any validity to this conversion?

CONVERSION PROCESS

How does a non-Jew become Jewish? As mentioned above, Klal Yisrael joined Hashem’s covenant with three steps: bris milah (for males), immersion in a mikveh, and offering a korban (Kerisus 9a). Since no korbanos are brought today, the convert becomes a geir without fulfilling this mitzvah. (We derive from a pasuk that geirim are accepted even in generations that do not have a Beis HaMikdash.) However, when the Beis HaMikdash is iy”H rebuilt, every geir will be required to offer a korban olah which is completely burnt on the mizbei’ach (Rambam, Hilchos Issurei Bi’ah 13:5). Those who have already become geirim will become obligated to bring this korban at that time.

Besides these three
steps, the convert must accept all the mitzvos, just as the Jews originally
took upon themselves the responsibility to observe all the mitzvos.

Preferably, each step in the geirus procedure should be witnessed by a beis din. Some poskim contend that the bris and tevilah are valid even if not witnessed by a beis din. But all poskim agree that if the kabbalas (accepting) mitzvos does not take place in the presence of a beis din, the conversion is invalid (Shulchan Aruch, Yoreh Deah 268:3). Thus, a minimal requirement for proper giyur (conversion) is that the geir’s commitment to observe all the mitzvos and practices of a Jew be made in the presence of a kosher beis din. Any “conversion” with no commitment to mitzvos is, by definition, invalid and without any halachic foundation.

Unfortunately, some well-intentioned converts have been misled by people purporting to be batei din for geirus. I know of more than one situation in which people underwent four different conversion procedures, until they performed a geirus in the presence of a kosher beis din with proper kabbalas mitzvos!

KABBALAS MITZVOS

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

If the potential convert states that he/she accepts responsibility to fulfill all the mitzvos, we usually assume that the geirus is valid. However, what is the halacha if a person declares that he accepts the mitzvos, but his behavior indicates the opposite? For example, what happens if the convert eats non-kosher food or desecrates Shabbos immediately following his conversion procedure? Is he considered Jewish?

Rav Moshe Feinstein rules that, when it is clear that the person never intended to observe mitzvos, the conversion is invalid. The person remains a non-Jew, since he never undertook kabbalas mitzvos, which is the most important component of geirus (Shu”t Igros Moshe, Yoreh Deah 1:157; 3:106).

BEIS DIN

As mentioned before,
conversion is an act that requires a proper beis din, meaning minimally, three
fully observant male Jews.

Since a beis din cannot perform a legal function at night or on Shabbos or Yom Tov, conversions cannot be performed at these times (Shulchan Aruch, Yoreh Deah 268:4).

CHILD CONVERSION

Until now we have
discussed the conversion of adults. A child can also be converted to Judaism
(Kesubos 11a). There are two common reasons why this is done: either when the
child’s parents are converting to Judaism, or when a non-Jewish child is
adopted by Jewish parents.

The conversion of a
child involves an interesting question. As we explained above, the convert’s
acceptance of the mitzvos is the main factor that makes him into a Jew.
However, since a child is too young to assume legal obligations and
responsibilities, how can his conversion be valid when it is without a legal
acceptance of mitzvos?

The answer is that we know that children can be converted from the historical precedent of Sinai, where the Jewish people accepted the Torah and mitzvos. Among them were thousands of children who also joined the covenant and became part of klal Yisrael. When these children became adults, they became responsible to keep mitzvos (Tosafos, Sanhedrin 68b). Thus, in the case of giyur katan, the geirus process consists of bris milah and immersion in a mikvah.

There is, however, a qualitative difference between a child who becomes part of the covenant together with his parents and an adopted child who is becoming Jewish without his birth parents. In the former case the parent assumes responsibility for the child’s decision (Kesubos 11a; Rashi, Yevamos 48a s.v. eved), whereas an adoptive parent cannot assume this role in the conversion process. Instead, the beis din supervising the geirus acts as the child’s surrogate parents and assumes responsibility for his geirus. This same approach is used if a child comes of his own volition and requests to be converted (Mordechai, Yevamos 4:40).

CAN THE CHILD REJECT
THIS DECISION?

Yes. If the child convert decides upon reaching maturity that he does not want to be Jewish, he invalidates his conversion and reverts to being a gentile. The age at which a child can make this decision is when he or she becomes obligated to observe mitzvos, twelve for a girl and thirteen for a boy (Shu”t Igros Moshe, Yoreh Deah 1:162).

CAN HE CHANGE HIS MIND
LATER IN LIFE?

No. Once the child
achieves maturity and is living an observant lifestyle, this is considered an
acceptance of the conversion that cannot be rejected afterwards.

WHAT IF THE CHILD
CONVERT WAS UNAWARE THAT HE WAS A GEIR AND DID NOT KNOW THAT HE HAD THE OPTION?

Rav Moshe Feinstein
discusses the case of a couple that adopted a non-Jewish child but did not want
to tell him that he was adopted. (Not telling the child he is adopted may be
inadvisable for psychological reasons, but this is an article on halacha, not
psychology.) Rav Moshe raises the following halachic reason why the parents
should tell the child that he is a convert. Assuming that the child knows he is
a child convert, he has the option to accept or reject his Judaism when turning
bar mitzvah (or bas mitzvah for a girl), which is a time that the parents have
much influence on their child. Subsequent to this time, he cannot opt out of
Judaism. However, if he does not discover that he is a convert until he becomes
an adult, he would have the option at that time to accept or reject his
Judaism, and the parents have limited influence on his decision.

WHAT IF THE CHILD
WANTS TO BE A NON-OBSERVANT JEW?

What is the halacha if
the child at age thirteen wants to be Jewish, but does not want to be
observant?

There is a dispute
among poskim whether this constitutes a rejection of one’s conversion. Some
contend that not observing mitzvos is not the same as rejecting conversion; the
conversion is only undone if the child does not want to be Jewish. Others
contend that not observing mitzvos is considered an abandonment of one’s being
Jewish.

Many years ago I asked my rebbe, Rav Yaakov Kulefsky zt”l, about the following situation. A boy underwent a giyur katan and was raised by non-observant “traditional” parents who kept a kosher home but did not observe Shabbos. The boy wanted to be Jewish without being observant, just like his adoptive parents. The family wanted to celebrate his bar mitzvah in an Orthodox shul and have the boy read from the Torah. Was this permitted or was the boy considered non-Jewish?

Rav Kulefsky, zt”l, paskened that the boy could read from the Torah and was considered halachically Jewish. Other poskim disagree, contending that being halachically Jewish requires acknowledging the mitzvos we must perform. Someone who rejects the mitzvos thereby rejects the concept of being Jewish.

GEIRIM ARE SPECIAL

If a potential geir persists in his determination to join the Jewish people, the beis din will usually recommend a program whereby he can learn about Judaism and set him on track for giyur. A geir tzedek should be treated with tremendous love and respect. Indeed, the Torah gives us a special mitzvah to “Love the Geir,” and we daven for them daily in our Shmoneh Esrei!

Throughout the years, I have met many sincere geirim and have been truly impressed by their dedication to Torah and mitzvos. Hearing about the journey to find truth that brought them to Judaism is usually fascinating. What would cause a gentile to join the Jewish people, risk confronting the brunt of anti-Semitism, while at the same time being uncertain that Jews will accept him?  Sincere converts are drawn by the truth of Torah and a desire to be part of the Chosen People. They know that they can follow the will of Hashem by doing seven mitzvos, but they insist on choosing an all-encompassing Torah lifestyle.

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

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

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

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

After further questioning, the beis din authorized her geirus, offering her two dates convenient for them. She chose the earlier one, so she could keep one extra Shabbos.

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




Redeeming a Firstborn Donkey!

As a cohen, I often participate in the mitzvah of pidyon
haben
, redeeming a firstborn male child, a bechor; but I have never been
asked to participate in redeeming a firstborn donkey, in Hebrew called petter
chamor
.

The Torah mentions this mitzvah in three different places.

(1) In Parshas Bo, the pasuk says: Every
firstborn donkey, you shall redeem with a “seh,” and if you do not
redeem it, you should break its neck. Furthermore, the firstborn of your
children, you shall also redeem (Shemos 13:13). (I will explain later
why I did not translate the world “seh.”)

(2) The pasuk repeats the same commandment almost verbatim in Parshas Ki Sissa (Shemos 34:20).

(3) In Parshas Korach, the
Torah states: And the firstborn of a non-kosher animal you shall redeem (Bamidbar
18:15). Although this third verse does not mention specifically that
it refers to a donkey, the halacha is that it refer exclusively to donkeys.
There is no mitzvah to redeem a firstborn colt, camel, or puppy (Tosefta,
Bechoros
1:2).

WITH WHAT DO WE REDEEM?

As mentioned above, the Torah commands the owner of a
firstborn male donkey to redeem him by giving the cohen a seh, a
word we usually translate as lamb. However, the word seh in the
Torah does not mean only a lamb, but includes a kid goat (Mishnah Bechoros 9a).
(In the mitzvah of Korban Pesach, Shemos 12:5, the Torah mentions
this explicitly.) In actuality, one fulfills this mitzvah by giving the cohen
either a sheep or a goat to redeem the donkey – whether they are young or
mature, male or female (Mishnah Bechoros 9a). Furthermore, there is an
alternative way to fulfill the mitzvah — by redeeming the donkey with anything
that is worth at least as much as the donkey (Bechoros 11a). However, if
the owner redeems the donkey with a sheep or goat, he fulfills the mitzvah,
even though the sheep or goat is worth far less than the donkey (Rambam,
Hilchos Bikkurim
12:11).

As we saw above, the Torah mentions the mitzvah of pidyon haben immediately after discussing the mitzvah of redeeming the firstborn donkey. Based on this juxtaposition of the two mitzvos, Chazal made several comparisons between them. For example, just as the mitzvah of pidyon haben applies only to a male child, so, too, the mitzvah of petter chamor applies only to a firstborn male donkey and not to a female. Similarly, just as the child of a cohen or levi is exempt from the mitzvah of pidyon haben, so, too, a donkey that is owned (or even partially owned) by a cohen or levi is exempt from the mitzvah of petter chamor (see Mishnah Bechoros 3b). And just as a newborn child whose mother is the daughter of a cohen or a levi is exempt from the mitzvah of pidyon haben, so, too, a donkey that is owned or even partially owned by the daughter of a cohen or a levi is exempt from the mitzvah of petter chamor (Shu”t HaRashba 1:366). This is true even if the bas cohen or bas levi is married to a yisroel (Rema, Yoreh Deah 321:19).

Thus, a yisroel who owns a donkey that is pregnant for the first time could avoid performing the mitzvah of petter chamor by selling a percentage of the pregnant donkey or a percentage of her fetus to a cohen,a levi,a bas cohen or a bas levi. He could even avoid the mitzvah by selling a percentage to his own wife, if she is a bas cohen or a bas levi. However, in order to perform this transaction in a halachically correct fashion, he should consult with a rav.

This is assuming that he wants to avoid the opportunity to
perform a mitzvah and save himself a few dollars. However, a Torah-observant
Jew welcomes the opportunity to observe every mitzvah he can, and certainly a
rare one. (How many people do you know who have fulfilled the mitzvah of petter
chamor
? Wouldn’t you want to be the first one on your block to have done
so?) Thus, he will try to create a chiyuv of petter chamor, not
try to avoid it. However, in the case of a different, but similar, mitzvah, we
try to avoid the mitzvah for very good reason, as we will explain.

BECHOR OF A KOSHER SPECIES

A firstborn male calf, kid, or lamb has kedusha,
sanctity, which requires treating this animal as a korban. When the Beis
HaMikdash
stood, the owner gave this animal to a cohen of his
choice, who offered it as a korban and ate its meat. Today, when,
unfortunately, we have no Beis HaMikdash, this animal still has the kedusha
of a korban, but we cannot offer it. Furthermore, as opposed to the
firstborn donkey that the owner redeems, the firstborn calf, kid, or lamb
cannot be redeemed.

This presents a serious problem. Many Jews are cattle
farmers, raising beef or dairy cattle. If a Jew owns a heifer (a young, female
cow that has not yet borne a calf) that calves for the first time, the male
offspring has the sanctity of a korban. Using it in any way is
prohibited min haTorah and is therefore a serious offense. One must wait
until the animal becomes permanently injured in a way that makes it not
serviceable as a korban, and then the animal may be slaughtered and
eaten. Until the animal becomes this severely injured, anyone who benefits from
this animal in any way will violate a serious Torah prohibition. Furthermore,
it is forbidden to injure this animal in any way or to cause it to become
blemished or damaged.

Thus, possessing a male firstborn calf, goat or lamb can be
a big problem, and could easily cause someone to violate halacha, certainly
something that we want to avoid. The method of avoiding these problems is to
sell a percentage of the mother or its fetus to a non-Jew before the
calf is born. If a non-Jew owns any part of either the mother of the firstborn
or the firstborn himself, there is no sanctity on the offspring. In this
instance, we deliberately avoid creating the kedusha on the offspring in
order to avoid a situation that may lead to undesired results. Since the animal
has kedusha that could be violated, and we cannot remove its kedusha,
we want to avoid creating this situation.

DOES A PETTER CHAMOR HAVE KEDUSHA?

Prior to its being redeemed, a firstborn donkey has kedusha
similar to that of a korban. It is prohibited min haTorah to
use it: one may not ride on it, have it carry for you, or even use its hair.
The hair that falls off may not be used and must be burnt. Someone who uses
this donkey violates a prohibition approximately equivalent to wearing shatnez
or eating non-kosher (Rashi, Pesachim 47a s.v.
Ve’hein
; Rivan, Makkos 21b s.v. ve’hein; cf., however,
Tosafos, Makkos
21b s.v. Hachoreish).

Until the donkey is redeemed, one
may not sell it, although some poskim permit selling it for the
difference between the value of the donkey and a sheep (Rosh,
Bechoros
1:11; Tur and Rema, Yoreh Deah 321:8). Many poskim
contend that if the donkey is sold, the money may not be used (Rambam,
Hilchos Bikkurim
12:4; Shulchan Aruch Yoreh Deah 321:8).

WHAT IF THE PETTER CHAMOR WAS NEVER REDEEMED?

If the donkey is unredeemed, it maintains its kedusha
its entire life! Thus, if it dies unredeemed, the carcass must be buried to
make sure that no one ever uses it. We may not even burn it, because of concern
that someone might use its ashes, which remain prohibited (Mishnah Temurah
33b-34a).

Furthermore, by not redeeming it, the owner violated the
mitzvah that requires him to redeem it.

Have you ever ridden a donkey? Although it is uncommon to
ride them in North America, in Eretz Yisroel this is not an unusual form
of entertainment. Did you stop to wonder whether the donkey might be a
firstborn and riding it is prohibited?

One need not be concerned. Since most of the donkeys of the
world are not firstborn, one does not need to assume that this donkey is.
Truthfully, the likelihood of a donkey being holy is very slim for another
reason — most donkeys are owned by non-Jews, and a non-Jew’s firstborn donkey
has no sanctity, as we explained before.

VANISHING KEDUSHA!!

Once the firstborn donkey is redeemed, both he and the lamb
used to redeem him have no kedusha at all. In this halacha, petter
chamor
is an anomalous mitzvah. In all other cases when we redeem an item
that may not be used, the kedusha is transferred to the redeeming item.
Only in the mitzvah of petter chamor does the kedusha disappear,
never to return. It is almost as if the kedusha that was on the donkey
vanished into thin air!

REFUSES TO REDEEM

What is the halacha if the owner refuses to redeem his
donkey?

As we know from the Torah, there is another option. If the
owner chooses not to redeem his firstborn donkey, he could instead perform the arifah,
in which he kills the firstborn donkey in a specific prescribed way. The Torah
does not want the owner to follow this approach — he is supposed to redeem the
donkey, rather than kill it (Mishnah Bechoros 13a). The Rishonim
dispute whether performing the arifah fulfills a mitzvah or, instead, is
considered an aveirah (see dispute between Rambam and Raavad in
Hilchos Bikkurim 12:1).

WHEN SHOULD THE OWNER PERFORM THE REDEMPTION?

In this halacha, there is a major difference between the
mitzvah of pidyon haben and the mitzvah of petter chamor. The father
of a newborn bechor does not perform the mitzvah of pidyon haben
until his son is at least thirty days old. However, the owner of the firstborn
donkey should redeem
him within the first 30 days of its birth, and should preferably perform the
mitzvah as soon as possible (Rambam, Hilchos Bikkurim 12:6; Shulchan
Aruch, Yoreh Deah
321:1).

PERFORMING THE MITZVAH

There are actually two stages in performing the mitzvah of petter
chamor,
although the two can be performed simultaneously. For our purposes,
we will call the two steps, (a) the redeeming and (b) the giving. In the
redeeming step, the owner takes a lamb, kid, or something else worth at least
as much as the donkey, and states that he is redeeming the donkey in exchange
for the redemption item. Prior to making this statement, the owner recites a bracha,
Asher kideshanu bemitzvosav vetzivanu al pidyon petter chamor
(Tosafos,
Bechoros
11a; Shulchan Aruch, Yoreh Deah 321:6). He then states that he is exchanging
the lamb or other item for the kedusha of the donkey. As soon as he
performs this exchange, the sanctity is removed from the petter chamor and
one may use the donkey (Mishnah Bechoros 12b).

In the giving step, the owner gives the lamb (or the item
exchanged for the donkey) to the cohen as a gift. The owner has the right to decide to which cohen he
gives the gift (see Rambam, Hilchos Bechoros 1:15). No bracha
is recited on this step of the mitzvah, and there is much discussion in poskim
regarding why this is so (Taz, Yoreh Deah 321:7).

Although there are two different parts of this mitzvah —
redeeming the kedusha from the firstborn and giving the gift to the cohen
— both parts of this mitzvah can be performed simultaneously, by giving the
lamb (or items of value) to the cohen and telling him that this is
redemption for the donkey. When redeeming the donkey this way, the owner does
recite a bracha.

Now, what does the cohen do with the lamb? He does
not need to leave it tied to a bedpost in his apartment, nor have it graze in
his backyard. He may sell it, should he choose, or can have it converted into
lamb or goat chops!

Conclusion

Why was the donkey an exception? Why is this the only one of
the non-kosher species whose firstborn carries kedusha?

The Gemara teaches that this is a reward for the donkey.
When the Bnei Yisroel left Egypt, the Egyptians gave us many gifts (see Shemos
11:2-3; 12:35-36). The Bnei Yisroel needed to transport all these
gifts out of Egypt and through the Desert to Eretz Yisroel. They could
not simply call Allied Van Lines to ship their belongings. Instead, they used
Donkey Lines, who performed this service for forty years, without complaint or
fanfare! In reward for the donkeys’ providing the Bnei Yisroel with a
very necessary shipping service, the Torah endowed the firstborn of this
species with sanctity (Bechoros 5b). Hashem rewarded the donkey with its
very own special kedusha.

Thus, this mitzvah teaches us the importance of hakaras
hatov
, acknowledging when someone helps us. We acknowledge donkeys, because
their ancestors performed kindness for us. If we are required to appreciate the
help given to our ancestors thousands of years ago, how much more do we need to
exhibit hakaras hatov to our parents, teachers, and spouses for all that
they have done and do for us!




A Hard Nachal – But What Is a Nachal?

Question #1: Valley Stream, Israel

What is a nachal eisan? A hard valley or a powerful
stream? And what is a “hard valley”?

Question #2: Celebrating birthdays!

When does halacha consider it significant to know
the birthday of a calf? Do we use the Hebrew birthday or the solar birthday
(sometimes called the “secular birthday” or the “Gregorian birthday”)?

Question #3: Why now?

Why are we discussing these questions this week?

Introduction

When the brothers return from Egypt to tell Yaakov the
exciting news that Yosef is, indeed, still alive, and that he is the ruler of
the entire country, Yaakov does not believe them. Only when he sees the wagons
that Yosef sent does he accept that the story is true. Why then? Chazal
explain that the last subject Yaakov and Yosef had been studying together
before Yosef so mysteriously disappeared was the topic of eglah arufah,
and the four Hebrew letters that spell the word eglah could also be
pronounced as agalah, wagon. Thus, Yaakov understood that only Yosef
would be able to supply this hint, and that the story that the brothers were
telling him was true.

This provides opportunity for us to study the detailed and
difficult laws surrounding the mitzvah of eglah arufah. Let us
begin with the description of this mitzvah as expressed in the Torah:

“Should you find, in the land that Hashem, your G-d,
is giving you to inherit, someone slain, lying in a field – and it is unknown
who killed him, your elders, your judges, must leave (the Sanhedrin) and
measure to the cities that are near the corpse. The elders of that city bring a
calf that
has never been worked and that never pulled a yoke. The elders of that city
bring this calf down to a nachal eisan (a term I will explain) that (asher
in Hebrew) will not be worked and not planted, and there, in that nachal,
they break the calf’s neck from behind. The kohanim, the sons of Levi,
come forward, because Hashem, your G-d, chose them to serve Him and to
bless in the Name of Hashem, and according to their word shall be every
dispute and every nega (affliction of tzaraas). Then, all the
elders of that city nearest the corpse shall wash their hands over the calf
that was killed in the nachal. They then raise their voices, declaring,
‘Our hands did not shed this blood, and our eyes did not see. Atone for Your
people, Yisroel, whom You, Hashem, have redeemed, and do not allow
innocent blood to be shed among Your people, Yisroel.’ Thereby shall this blood
be atoned” (Devorim, 21:1-8).

In the earlier article, which I sent out two weeks ago, we
noted that there are five different aspects to the mitzvah, each incumbent upon
a different participant:

(1) The finders of the fallen victim, who notify the main
Sanhedrin, take care of the corpse, and, eventually, bury it.

(2) The representatives of the main Sanhedrin, who measure
the distance from the fallen person to the nearby cities to determine which
city is nearest the scene of the crime.

(3) The beis din of the city nearest the crime
scene, which brings a female calf to a nachal eisan and performs the
procedure described by the posuk.

(4) All the elders of that city, who wash their hands and
make the declaration, “Our hands did not shed this blood and our eyes did not
see.”

(5) The kohanim, who make the declaration, “Atone
for Your people, Yisroel, whom You, Hashem, have redeemed, and do not
allow innocent blood to be shed among Your people, Yisroel.”

In addition to the five groups obligated to fulfill the
mitzvah of eglah arufah, there is another mitzvah that is incumbent on
all of Klal Yisroel: a prohibition not to use the nachal eisan in
the future.

In the previous article, we described the procedures
through step (2) above. The members of the Sanhedrin have completed the
measuring and have determined which city is nearest to where the victim fell.
This city and, specifically, its beis din now become responsible for
bringing the calf. We continue our discussion from this point.

The locals take over

The local beis din brings a female calf that is
under the age of two (Parah 1:1, Rash ad locum; Rambam,
Hilchos Rotzei’ach
10:2) to a place that the Torah calls nachal eisan,
where that beis din performs a very unusual course of action (see
below). Following this course of action, with all its details, is the main
fulfillment of the mitzvah of eglah arufah, and is what atones for the
local community’s negligence that allowed this tragedy to occur.

Age of calf

The calf must be before its second birthday, but it may be
any age younger, as long as it is at least eight days old.

At this point, we can address the second of our opening
questions: When does halacha consider it significant to know the
birthday of a calf? Not in order to celebrate it with streamers and a birthday
cake, but to know when it will be invalidated for use as an eglah arufah.
Similar laws are germane to korbanos –  in those korbanos
that allow use of an animal only up to a certain age, the age is determined by
the birth date of the individual animal. Since the halacha in this
regard deals with the Jewish calendar, it is important to keep track of the
calf’s Hebrew birth date. Even though extensive information is kept of dairy
cows in our day, including their vaccination and other full veterinary records,
the Hebrew date is not used, even if the calf is owned by a frum farmer.

What is a nachal eisan?

At this point, let us examine our opening question: “What
is a nachal eisan? A hard valley or a powerful stream?”

Rashi
and the Rambam disagree concerning the definition of a nachal eisan.
The Rambam explains it to be a strongly flowing stream (Hilchos
Rotzei’ach
9:2), whereas, according to Rashi, it is a rocky valley
that has never been tilled (Devorim 21:4; Sotah 46a, b; Pesachim
22a; Chagigah 19a). Their disagreement appears to be whether the
word nachal in this context means valley (Rashi) or stream
(Rambam). The Gemara (Sotah 46) explains that the word
eisan means hard; thus, Rashi explains it to mean a hard,
rocky valley, whereas the Rambam explains it to means a hard-flowing
stream.

Nachal that is not eisan?

The Mishnah (Sotah 45b) rules that if they
found an area that qualifies as a nachal, it can be used, even if it is
not that hard. The requirement that the area be eisan, hard, is lechatchilah,
preferred min haTorah, but not required. According to the Rambam,
this means that they found a stream they could use, but the flow is not that
strong; according to Rashi, it means a valley or dry wadi bed, but not
necessarily a rocky one.

The Minchas Chinuch points out that the nachal
eisan
area must either be ownerless or be owned by the people of the city.
This means that, having located a nachal eisan area, the beis din,
or the members of the city, must determine if the area has an owner. If there
indeed is one, they must purchase the property. No mention is made what they
are to do if they find the owner to be as unscrupulous as Efron was in his
dealings with Avraham. Presumably, they can continue to hunt for another nachal
eisan,
if they do not like his price. Assuming that there are two available
areas, one hard and the other not, they should choose the hard area. However,
if there is a major price differential between the two areas, I have no idea
how much they are expected to spend for the harder area.

No local nachal

The Minchas Chinuch rules that if no nachal eisan
was found in Eretz Yisroel, they could use one that is outside Eretz
Yisroel
. Although the mitzvah of eglah arufah applies only when the
victim is found in Eretz Yisroel, the actual place where the procedure
takes place can be anywhere. However, Rav Chayim Kanievski, in his monumental
work Nachal Eisan, draws evidence from rishonim that several of
them (Tosafos, Pesachim 52b s.v. ad; Tosafos
Shantz
, ad loc.; Sefer Hachinuch) held that the nachal
eisan
must be in Eretz Yisroel.

Washing and declaring

The beis din of the determined city is then
responsible for having the calf slaughtered according to the method described
here by the Torah. The next step is that the members of the beis din and
all the older people of that city wash their hands in the place where the calf
was killed. The Gemara rules that they must be careful to wash their
hands directly above the place where the calf died (Sotah 46b).

The Rambam rules that the mitzvah of washing hands
applies to “all the zekeinim of the city, even if there are a hundred,”
without explaining what definition we use for “zekeinim.” Rav Chayim
Kanievski explains that this includes anyone over the age of sixty who is able
to make the trip (Nachal Eisan 14:3). He further discusses whether a
woman above the age of sixty is also required to participate, and he is
inclined to think that she is not.

This is presumably the only time where, outside of the Beis
Hamikdash
, there is a requirement min haTorah to wash your hands.
According to Rav Chayim Kanievski, there is no requirement that they use a cup,
nor that a revi’is of water be used, nor are the elders required to dry
their hands afterwards. Rav Chayim rules that they fulfill the mitzvah even by
dipping their hands into a pail of water (Nachal Eisan 14:4).

After washing their hands, the zekeinim make a
declaration, “Our hands did not shed this blood and our eyes did not see.”
However, if they made the recital the way I just quoted it, they did not
fulfill the mitzvah, since the Mishnah (Sotah 32a) rules that it
must be recited in Hebrew, exactly as the words of the posuk are
written. This requirement exists, notwithstanding that we rule that both kerias
shema
and davening may be recited in any language that you
understand (Sotah 32a)!

Care must be taken that the words are recited accurately
and grammatically correctly, and that they are spaced in a way that the meaning
is not confused (based on Yevamos 106b).

The Mishnah (Sotah 45b-46a) rules that the
two pesukim mentioned by the Torah are divided into two units. The first
posuk, “Our hands did not shed this blood and our eyes did not see,” is
recited by the elders of the city, whereas the next posuk, “Atone for
your people, Yisroel, whom You, Hashem, have redeemed, and do not allow
innocent blood to be shed among your people, Yisroel,” is recited by the kohanim.
Rashi explains that the source for this law is because the Torah
instructs the kohanim to “come forward,” yet it does not clarify a
specific role for them to play.

Just as in the case of the laws of the first posuk,
the kohanim must recite this posuk in its original Hebrew.

The Mishnah (Sotah 45b) raises the following
question: “Is anyone accusing the elders of the city of being the murderers of
this unfortunate victim?” Why then must the elders make a statement that they
did not shed his blood? The answer is that the city may have contributed to the
death of the victim by not seeing adequately to his needs and safety. It is for
this negligence that they are seeking atonement. The statement, “Our hands did
not shed this blood and our eyes did not see,” means that nothing the townsmen
could have done would have saved this unfortunate soul. There was nothing for
them to have done that they failed to do.

Never be used

After the eglah arufah procedure is performed, it is
prohibited to use the earth of this nachal. (According to the Rambam,
this means either the riverbed beneath the stream, or its banks.) However, the
area above ground may be used. To quote the Mishnah: “Its location may
not be planted or worked, but it is permitted to comb flax there or to hew out
stones” (Sotah 45b). Based on droshos in the words of the posuk,
the Gemara (Sotah 46b) explains that it is prohibited to use the
earth itself, which occurs when the ground is plowed or planted, but using the
surface of the earth, or even mining it, is not called “using the earth.”As we
mentioned above, the Mishnah rules that, after the procedure of eglah
arufah
has been performed, the area used, the nachal eisan, may
never again be used. This prohibition is counted by the Rambam and the Sefer
Hachinuch
as a separate mitzvah of the 613. (In most editions of the Sefer
Hachinuch
, this is counted as mitzvah #531).

In this context, the Gemara (Sotah 46b)
quotes the following beraisa: “Our rabbis taught: which (in
Hebrew, asher) was not worked and not planted. This teaches that
it is never again permitted to plant in this nachal. How do we know that
other types of work are prohibited? Because the Torah states, which was not
worked
, meaning any type of work. If so, why did the Torah previously
state, which was not planted? This teaches us that, similarly to
planting, which uses the ground itself, the Torah is prohibiting only activity
using the ground itself. This excludes combing flax or removing stones, which
do not use the ground itself,” and are therefore permitted.

In conclusion, the Torah’s prohibition applies only to
using the nachal eisan for agricultural purposes. Thus, it is permitted
to build a shopping mall on top of the nachal eisan and make the land
worth billions of dollars!

There is halachic discussion whether whatever grows
from what was planted in violation of the law is prohibited from use. According
to most authorities, what grows there is prohibited, and it is even prohibited
to use the produce for any benefit, including selling it to non-Jews or as
animal feed (see Sefer Kerisus, at end; Pri Chodosh, Yoreh Deah 110:13;
however, see Minchas Chinuch).

Does the prohibition include harvesting vegetation that has
already grown there or subsequently grows on its own? The Minchas Chinuch
concludes that it does not, since reaping does not use the land, and the Torah
mentions specifically working the earth and planting, which do not seem to
include harvesting.

It is also implied by this discussion that there is no
prohibition in walking on or through the nachal eisan, even to use it as
a shortcut to get from place to place. This is not considered using the soil of
the nachal eisan.

Past use?

Must the nachal eisan be an area that was never used
in the past? This is a dispute among late tanna’im, as quoted by the
following Gemara: “Our rabbis taught: ‘that (asher in Hebrew)
will not be worked and not planted.’ This means that the area was never used in
the past – these are the words of Rabbi Yoshiyah. Rabbi Yonasan says, ‘in the
future.’ Rava explains, ‘Everyone agrees that it cannot be used in the future,
because the verse uses the future tense – “will not be worked.” Their dispute
regards only the past’” (Sotah 46b). The Gemara’s conclusion is
that the word asher in the posuk could be interpreted to mean
that, not only can this property never again be used in the future, but it had
never been used in the past, either. This is the dispute between Rabbi Yoshiyah
and Rabbi Yonasan.

Conclusion

One of the many rules of eglah arufah is that the mitzvah applies only when the victim was found lying open — unburied by the murderer. In Rav Hirsch’s analysis (Commentary to Devorim, 21:1), this means that leaving the victim exposed, as the perpetrator did, demonstrates a shocking lack of concern for society, a mockery for any authority. (Since I cannot do justice to Rav Hirsch’s beautiful explanation and analysis, I recommend that our readers examine it themselves.)

Based on an extensive analysis of both Talmudim’s explanations of aspects of the mitzvah, Rav Hirsch explains that the concept of eglah arufah is for the elders of the city to declare that this city takes care of the needs of all travelers who pass through, and also provides properly for all its residents. Severe poverty should not exist in a community – at least not to the extent that it can be used to excuse a crime.

Thus, although we sincerely hope that the mitzvah of eglah arufah is never observed, we should always learn from its lessons!




Eglah Arufah

Photo by Alexander Wallnöfer from FreeImages

Question #1: Which Cities?

What are the requirements for a city to be obligated in eglah
arufah
?

Question #2: Where?

How do we measure to determine the obligation of eglah
arufah
?

Question #3: Why Now?

Why are we discussing this mitzvah this week?

Background

Chazal teach us that the last subject Yaakov and
Yosef had been studying together before Yosef so mysteriously disappeared was
the topic of eglah arufah. This provides opportunity for us to study the
very detailed and difficult laws surrounding the mitzvah of eglah
arufah
. Let us begin with the description of this mitzvah as expressed in
the Torah:

“Should you find, lying in a field, someone slain in the
land that Hashem, your G-d, is giving to you to inherit – and it is unknown who
killed him, your elders, your judges, must leave (their usual location) and
measure the distance from the cities that are near the corpse. The elders of
the closest city bring a calf that has never been worked nor pulled a yoke. The
elders of that city bring this calf down to a ‘hard’ valley that will not be
worked and not planted, and there, in that valley, they decapitate the
calf. Then, the kohanim, who are the sons of Levi, come forward, because
Hashem, your G-d, chose them to serve Him and to bestow blessing in the Name of
Hashem, and by their mouths will be decided all disputes and all matters
germane to nega’im. Subsequently, all the elders of that city that is
nearest the corpse shall wash their hands over the calf that was decapitated in
that valley. They then raise their voices, declaring, ‘Our hands did not shed
this blood, and our eyes did not see. Atone for Your people, Yisroel, whom You,
Hashem, have redeemed, and do not allow innocent blood to be shed among Your
people, Yisroel.’ Thereby, shall this blood be atoned” (Devorim, 21:1-8).

The words of this posuk are carefully analyzed in Torah
she’be’al peh. To review: A terrible calamity occurred to the Jewish
nation. A murder has taken place, and, to make matters worse, indications are
that a Jew was the perpetrator. How do we see that it is appears that a Jew was
the murderer? Firstly, the halacha is that if there were non-Jews near
the murder site, no eglah arufah is offered, based on the supposition
that it was a non-Jew who performed the crime (see Sotah 44b, according
to the version quoted by the Rambam; see also Tosafos, Bava Basra
23b s.v. beyosheves, and Minchas Chinuch #530). In addition,
should the victim have fallen near the Jewish country’s borders, no eglah
arufah
is offered, under the assumption that he was murdered by a foreign
intruder (Mishnah, Sotah 44b). Furthermore, in an unfortunate era
when there were gangsters among the Jewish people, no eglah arufah was
offered either, since the assumption is that one of the gangsters performed the
heinous crime, and the eglah arufah is only offered when there is no
knowledge about the perpetrator’s identity (Mishnah, Sotah 47a).

There are several questions relating to these pesukim that
we will discuss. For example, the verse goes to great length to describe the
role of the kohanim in the Jewish people, yet it does not say what
function they perform in the eglah arufah procedure. (The answer to this
question will need to wait until our sequel.) Also, we should note that there
are three different descriptions of elders in the pesukim: At first it
refers to “your elders, your judges,” then it refers to “the elders of that
city,” and lastly it refers to “all the elders of that city.” These seem to be
three different categories of elders. Indeed, we will soon see that this is
exactly the situation.

Should the murderer be apprehended, no eglah arufah
is offered. Since no murderer has yet been caught or suspected, the community
from which it is most likely that the murderer came is required to atone for
itself. This atonement procedure is the fulfillment of the mitzvah of
bringing an eglah arufah, which is counted by the Sefer Hachinuch
as mitzvah number 530. If the procedure of the eglah arufah has
already been performed, and subsequently the murderer is identified in a way
that halacha rules that he be punished, the regular punishment is
carried out (Mishnah Sotah 47a). The purpose of the eglah
arufah
is to atone for the negligence of the community and its leadership,
not for the murderer.

Details, details

There are several different stages involved in fulfilling
the mitzvah of eglah arufah, each of which is performed by a different
group of people. The first step is the responsibility of those who find the
corpse. Contemporary society would expect them to call the police department to
file a criminal report, and the police would contact the coroner’s office to
examine the corpse. However, the halachic instructions are quite
different. Those who find the victim send a notification to the Sanhedrin,
wherever it is headquartered, to send representation to the location of the
fallen individual (Minchas Chinuch #530). The corpse is not moved in the
slightest, and the examination of the crime is performed only by observation.
In order to make sure that the meis has a proper burial place, the halacha requires
that he be buried in the place he was found, a halachic principle called
meis mitzvah koneh mekomo
, which literally means that someone who dies
without next of kin nearby or available to guarantee proper burial has an
automatic legal right to be buried in the place where he was found, unless it
is a place that causes public inconvenience (Eruvin 17a, b). The Gemara
explains that this was one of the ten rules that Yehoshua established when he
led Klal Yisroel into Eretz Yisroel (Bava Kama 81a).

Three groups of elders

Above it was noted that the posuk mentions three
groups of elders:

1. “Your elders, your judges,” who “must leave and measure
the distance from the cities that are near the corpse.” This refers to the Sanhedrin,
the main court of the Jewish people, responsible for the continuity of the Torah
she’be’al peh
and for all regulations regarding the Jewish people. They
send a group of their members from Yerushalayim, or their headquarters, to
oversee the measuring from the fallen victim to the nearby cities to determine
which is closest.

2. “The elders of that city,” who become responsible for
the proceedings once it is determined which city is closest to the victim of the
crime.

3. “All the elders of that city,” which, according to the Rambam,
includes even senior citizens who are not necessarily scholars. The members of
this group are required to wash their hands and to make a declaration of their
innocence.

The arrival of the members of the Sanhedrin

The Rambam rules that we leave the corpse in place
until a representative body of the Sanhedrin arrives. Bearing in mind
that, in his opinion, this could take many weeks until it happens, this seems
very unusual, as we usually bury someone as soon as possible, unless the
dignity due the departed requires that we wait for the arrival of next-of-kin or
a larger turnout at the funeral. Here, the delay will not result in either of
the above; yet, in the Rambam’s opinion, we delay.

How long can this delay be? Allow me to calculate. The mitzvah
of eglah arufah applies anywhere in Eretz Yisroel, including the
large area on the eastern side of the Jordan River (Sifri; Rambam,
Hilchos Rotzei’ach
10:1). We know that the most distant places in Eretz
Yisroel
were fifteen days travel time from Yerushalayim (Mishnah Taanis
10a). Granted that the Mishnah there is calculating the time it takes a family
to travel, we can shave off a few days of travel time, but not much more, since
we know that beis din’s messengers could still take about twelve days to
get to the most distant parts of Eretz Yisroel (Rambam, Hilchos Kiddush
Hachodesh
5:4, 6). Therefore, it could take at least twelve days after the
discovery of the corpse until the locals get a message to the Sanhedrin
to send its representatives. After the Sanhedrin chooses the members for
this mission, if the city is this far removed from Yerushalayim, it could take
at least twelve more days for the delegation to arrive. Thus, we can easily
have a situation in which the corpse has been left for almost thirty days until
burial according to the approach of the Rambam (Minchas Chinuch).

What happens to the corpse during these many weeks of
waiting? All the rules of kovod hameis apply, other than allowing no
delay to bury him. Since he must be left in situ in order not to bias
the measurements, there is a requirement to provide shemirah on the body
by day and by night, firstly for the human honor due him, and secondly to make
sure that animals and insects do not feed on him. Thus, in this situation the
requirement of meis mitzvah requires that people be available to be
shomeir
this meis outdoors, wherever he was found, 24/7, for up to
and perhaps more than thirty days, regardless of the weather conditions! We
should also note that, according to the opinion of Rabbi Eliezer ben Yaakov
that we will soon cite, the wait could be considerably longer.

Several acharonim (Chasdei Dovid, Minchas
Chinuch
) question the Rambam’s ruling that the corpse must be left in
situ
until the representatives of the Sanhedrin arrive. The text of the Tosefta
(Sotah 9:2) implies otherwise: As explained by the Chasdei Dovid,
when the corpse is located, the Tosefta rules that a nearby beis din
sends representatives to mark the exact point from which we are going to
measure. Then, the meis is buried in place, because of the principle of meis
mitzvah koneh mekomo
. The Sanhedrin members, when they arrive,
measure not from the meis himself, who has already been buried, but from
the marker on the gravesite that indicates the pinpointed location from which
they are to measure. The Talmud Yerushalmi (Sotah 9:1) quotes
this Tosefta, yet the Rambam rules otherwise.

Three, five or more?

There is a dispute among tanna’im how many members
of the Sanhedrin are required to come: According to Rabbi Shimon, three
members, and according to Rabbi Yehudah, five (Sotah 44b; Sanhedrin
2a, 14a). The Rambam rules according to Rabbi Yehudah, requiring five
members of the Sanhedrin to come to the site of the murder (Hilchos
Rotzei’ach
9:1).

There is a third tanna, Rabbi Eliezer ben Yaakov,
who requires a very large representation of the Jewish people, including the
king, the kohein gadol and the entire Sanhedrin, not just three
or five representatives (Sotah 45a). As I mentioned above, his opinion
could potentially cause an even greater delay until the Sanhedrin arrives
to measure the distance to the nearby cities, since both the king and the kohein
gadol
may have other obligations, and the king could be away on a war or
other affairs of state.

However, Rabbi Eliezer ben Yaakov’s position is not
accepted as normative halacha, evidenced by the fact that the Mishnah,
which discusses this issue in two different places, does not even mention his
opinion. The Rambam, also, does not rule this way, but requires only
five members of the Sanhedrin, unaccompanied by either the king or the kohein
gadol
.

Where is the Sanhedrin?

Until the destruction of the Beis Hamikdosh, the Sanhedrin
was always located either in a special chamber on the grounds of the Beis
Hamikdosh
or somewhere nearby. After the destruction of the Beis Hamikdosh,
the Sanhedrin went through a series of relocations, first to Yavneh, and
then to different places mostly in the Galil, including Shafra’am, Beis
She’arim, Tzipori, Usha and Teveryah (Rosh Hashanah 31). The Minchas
Chinuch
(530) rules that there was a law of eglah arufah during all
these periods. This would indicate that the Mishnah in Sotah 44b,
which states that the Sanhedrin members left from Yerushalayim, is an
old Mishnah dating back to the time of the Beis Hamikdosh and not
from the time of Rabbi Yehudah Hanasi, in whose day the Sanhedrin was
already in Teveryah, the last of its ten relocations.

Next mitzvah: Measuring

There is a mitzvah to measure even when the corpse
is found right outside one city, such that it is completely unnecessary to measure
to determine which city is closest (Sotah 45a; Rambam, Hilchos
Rotzei’ach
9:1).

Since this measurement is a Torah requirement, it must be
done very precisely (Eruvin 58b; Rambam, Hilchos Rotzei’ach 9:4).
Regarding other halachos involving measurement of distance, such as the techum
Shabbos
around a city or village within which one may walk on Shabbos,
we do not measure the elevations of hills around the city, but have various halachically
approved methods of estimating and shortening these distances. In other words,
techum Shabbos
is measured as the crow flies.

These rules do not apply to eglah arufah. In this
instance, the measurements must be exactly how far it would take someone to
walk this distance. In other words, the distance is measured not as the crow
flies, but as the person walks.

Must they measure it themselves?

Are the members of the Sanhedrin themselves required
to measure the distance from the corpse to the nearest city, or is it
sufficient if they supervise the measuring? The Minchas Chinuch rules
that they are not required to perform the actual measurements, but they must
oversee those who are measuring.

There are several unusual laws germane to the mitzvah
of measuring. We measure to the largest cities from which it is likely that the
murderer came. If there are smaller cities nearby, they are ignored (Rambam,
Hilchos Rotzei’ach 9:6, based on Bava Basra 23b). If the nearest
city includes a non-Jewish population, no measurement and no mitzvah of eglah
arufah
are performed (Rambam, Hilchos Rotzei’ach 9:5), and if
the nearest city is Yerushalayim, there is no mitzvah of eglah arufah
(Bava Kama 82b).

Is beis din a liability?

One of the unusual rules is a statement of the Mishnah
that the measurement is done only towards a city that has a beis din (Sotah
44b). This implies that if there are large, populous, completely Jewish
cities near the corpse that do not have a beis din, we do not measure
from the corpse in the direction of that city, but instead, we measure to a
more distant city that has a beis din. The question, raised already by Tosafos
(Bava Basra 23b s.v. bedeleika), is that the lack of a beis
din
does not demonstrate that the murderer was not a resident of that city.
Thus, if our goal is to determine which city most likely produced the murderer,
the farther city should not thereby be required to bring an eglah arufah.
This question has created much literature, but, to the best of my knowledge,
there is no universally accepted approach to answer it.

The measure of a man

From which point on the victim’s body do we measure? The Mishnah
(Sotah 45b) quotes a three-way dispute among tanna’im discussing
exactly from which point on the victim’s body we measure. According to Rabbi
Eliezer, we measure from the navel, which is where he first acquired
nourishment before birth. In Rabbi Akiva’s opinion, we measure from the
nostrils, which is the place from which a person draws his breath. Rabbi
Eliezer ben Yaakov rules we measure from the neck, which he bases on his
understanding of a posuk. The Rambam concludes that we follow
Rabbi Akiva and measure from the nostrils.

According to the above-referenced Tosefta, those who
found the body buried it in situ immediately, but were careful to mark
the exact place where his nostrils were at the moment they found him. The
elevation at which the body was found is also a factor in the measurement. This
means that they needed to measure carefully the height at which they found him,
not only his location on the ground before they buried him.

I will be sending the sequel to this article in two weeks.

Conclusion

The Sefer Hachinuch explains one of the reasons for the mitzvah of eglah arufah is that it teaches communal responsibility. The elders of the Sanhedrin are required to send a representation of either three or five members to personally oversee the measurement from the victim to the nearest city. After they complete their measurement, the city thus indicated must send out all its elders to participate in what can only be described as a very unusual ceremony. Certainly, they cannot declare innocence before Hashem unless they are certain that they provide every wayfarer with adequate security and provisions. Thus, the elders of the city must always be responsible for whatever happens in their city, not only among the residents, but even among the visitors.




What Could be Wrong with the Steak?

Since this week’s parsha includes the prohibition of gid hanasheh, we have the opportunity to discuss certain issues of shechitah.

One of my editors suggested that I mention to those who are squeamish
that this article will be graphic about aspects of shechitah, so I am
fulfilling this request.

Question #1:

When Yankel returns from kollel one day, his wife
Miriam asks for his advice about the following situation. While visiting a
neighbor, Miriam noticed her neighbor using a brand of meat that nobody she
knows considers reliably kosher. “Should I tell her that her meat does not have
a good hechsher?”

Question #2: Chayim asks me the following: “In parshas
Vayeishev, Rashi mentions that Yosef reported to his father that his
brothers ate meat that was prohibited, even for a Ben Noach; but
Yosef was mistaken — the brothers were very careful to eat only properly shechted
meat. Could it be that they were following different kashrus standards,
so that Yosef thought what they were eating was treif, whereas the
brothers were convinced that it was kosher?”

The Torah requires that kosher meat and poultry be
slaughtered in a specific, halachically approved way (shechitah)
and may be eaten only if they are without certain defects that render them tereifah.
In Parshas Re’eih, the Torah (Devarim 12:20-21) teaches, When
Hashem will enlarge your border as He has promised you, and you will say, “I
will eat meat” because you desire to eat meat, to your heart’s desire you may
eat meat… And you shall slaughter as I have commanded you
. Yet,nowhere
in all of Chumash does the Torah provide such instructions. This is one
of the internal proofs that the written Torah was accompanied by an explanatory
Oral Torah, and, indeed, the laws referred to in the verse, And you shall
slaughter as I have commanded you
, are part of this Torah she’baal peh.
Via halacha leMoshe miSinai, an oral communication that Hashem
taught Moshe at Har Sinai, the Torah provided five regulations that must be
followed for a shechitah to be kosher (Chullin 9a). Violating any
one of these regulations means that the meat was not slaughtered as I have
commanded you
, and is not kosher.

The five rules are:

  1. Shehiyah — Pausing during the act of shechitah invalidates it, even if the shechitah is subsequently completed (Mishnah Chullin 32a).
  2. Drasah – Pressing down or chopping with the knife invalidates the shechitah. A proper shechitah involves a slicing motion, usually with a back-and-forth stroke (Mishnah Chullin 30b).
  3. Chaladah – Burrowing the knife into the neck and then cutting in an outward direction invalidates the shechitah. Proper shechitah requires that the back of the knife is always exposed (Mishnah Chullin 32a).
  4. Hagramah – Cutting above or below the area of the neck designated by the Torah for proper shechitah (Mishnah Chullin 18a).
  5. Ikur – Tearing, rather than cutting, is not kosher (Tosafos, Chullin 9a s.v. Kulhu, in explanation of Rashi). If the shechitah knife has nicks in it, it may tear, rather than cut. 

Thus, a shocheit must be highly competent, both in
the halachos of shechitah and in the skills necessary to do the
job correctly. His shechitah blade must not only be sharper than a
razor, but also totally smooth, because a slight nick invalidates the shechitah
(see Shulchan Aruch, Yoreh Deah 18:2). It takes a considerable amount of
time and effort for a shocheit to learn all the skills of his trade
adequately, including how to quickly hone his knife to the required sharpness
and how to check with his fingernail that its blade is completely smooth. These
are difficult skills to learn. I recently borrowed the shechitah knife
of someone who is in the process of learning the skill, and although his knife
was adequately smooth, it was not nearly sharp enough to pass muster. Indeed, halachic
literature is replete with anecdotes of rabbonim who discovered that shochatim
active in the profession were not as proficient in their skills as the halacha
requires. The Maharshal reports checking the knife of a well-experienced
shocheit doing his rounds of shechting chickens for kaparos
Erev Yom Kippur, and discovering that not only was the shocheit’s
knife nicked, but the shocheit repeatedly checked his knife too speedily 
to notice it! (Yam shel Shelomoh, Chullin 1:39)

Furthermore, a shocheit must be fully proficient in
the detailed laws applying to his profession; he is expected to review the laws
of his field every thirty days to maintain his expertise.

Since it is easy for a shocheit to invalidate a shechitah
without anyone but him knowing about it, one should use only a shocheit
who is known to be G-d-fearing, a yarei shamayim. We now understand why
the old European shtetl people viewed the shocheit with tremendous
esteem. He was respected second only to the rav for his erudition and
his fear of heaven.

Other rules regarding shechitah include that the shechitah
must be performed by an observant Jew. A gentile’s shechitah is not
kosher, even if a knowledgeable observant Jew supervises to ensure that
everything is done correctly.

We can already see why people sometimes hesitate to use a
particular shechitah. Although one cannot be sure whether a shocheit
is a yarei shamayim, one can sometimes sense that he is not. Indeed, the
responsa literature is full of cases concerning shochatim whose behavior
or personal shortcomings caused concern about their trustworthiness.
Unfortunately, I, too, have met shochtim whose lackadaisical attitude to
mitzvah observance did not reflect the type of person I would want to entrust
with this responsibility.

But maybe it’s treif!

Even if the animal passed muster and merited a flawless
kosher shechitah, it may still not be kosher. The Torah prohibits eating
meat of a bird or animal that is tereifah, meaning that the animal has
certain physical defects (Chullin Chapter Three). For example, a bird or
animal that has a perforated lung, gall bladder or intestine; that has a torn spinal
cord; or that has been attacked with the fang of a predator, is tereifah.
Although people colloquially use the word tereifah for any non-kosher
food, technically speaking, it refers to an animal or bird with one of these
defects. Not only is a tereifah animal non-kosher, but so, too, are its
milk or eggs that were produced after it became tereifah.

This leads us to an interesting question. If the milk
produced by a tereifah cow is not kosher, how can we drink milk without
checking to see if the milked cow has none of these defects? Most signs of tereifah
are internal and cannot be verified on a living animal without a CT scan or MRI
equipment, not commonly available on a farm.  Obviously, such testing
would drive up the price of eggs and dairy products, even more than last year’s
heat wave.

The answer is that although the milk of an animal and the
eggs of a bird with any of these imperfections is indeed tereifah, so
long as we do not know that the animals or birds are tereifah, we assume
that most animals and birds are kosher and follow the majority. Therefore, we
can rely on milk and eggs being kosher, unless there is reason to assume that
there is a problem.

Regarding meat, we are not required to check for a
particular tereifah unless the defect occurs frequently. Thus, since
animals commonly have lung problems, one is required to check their lungs, even
if they do not smoke. Another example is a perforation in the intestinal wall
that renders its possessor treif. There is a section of the small intestine,
called Meckel’s diverticulum, that in poultry frequently becomes infected and
swollen, often resulting in a perforation that renders the bird tereifah.
Since this defect is not unusual, mashgichim in kosher poultry plants
routinely check this part of the intestine.

How do I check?

There are often different opinions among rabbonim how
carefully one needs to check for these tereifos, and, at times, whether
one needs to check altogether. There may also be a disagreement over other
subtle details, such as whether the factory is set up in a way that allows the shochatim
sufficient time to do their work properly. The rav overseeing the
packing plant may feel that all is in order, whereas another rav may
feel it is lacking.

At this point, I return to the question that Miriam asked
her husband Yankel: “While in my friend’s house, I noticed that they were using
a brand of meat that no one I know uses. Should I tell her that her meat does
not meet a proper kashrus standard?” The answer here would depend on
circumstances: If there is indeed a real, serious problem at that abattoir,
then Miriam should certainly tell her friend not to purchase that meat.
However, this applies only if Miriam has firsthand knowledge of this issue,
which is rarely the case. In the vast majority of situations, Miriam herself
has no idea why the people in “her circle” do not use that shechitah. It
may indeed be for the reasons we have mentioned, but sometimes it is not.

Yankel realized that besides the laws of loshon hora
involved here, he would also need active kashrus experience to answer
her question. Lacking this qualification, he decided to educate himself on the
subject by asking a rav who is experienced with the kashrus of
meat. Since this rav requested not to be identified, we will call him
Rav Posek as we present their conversation.

No brisket for me!

“I want to give you a bit of a history of shechitah,”
began the rav. “Originally, almost all American kosher meat packers used
a method called shechitah teluyah, which means ‘hanging shechitah.’
This method of shechitah was highly popular, because a non-kosher meat
packing plant can very easily be used to produce kosher meat. This was 
advantageous, since the kosher market in America does not use the meat from the
hindquarters, and the non-kosher market considers hindquarter cuts to be the
highest quality cuts. The non-kosher meat packers had trouble selling their
forequarters, so arranging a shechitah was a very convenient way of
finding a new market for their product without jeopardizing their existing
customers. It was a classic win-win arrangement that encouraged large,
non-kosher meat plants to have kosher shechitah and was responsible for
making kosher meat widely available and keeping its price down.

“The standard method of shechitah in these packing
plants involved hanging the animal from a hind leg, while gentile employees
held the animal’s head still for the shocheit. Although the abattoir
owners encouraged this method because it involved no investment on their part,
it was not viewed favorably among most of the other people involved. Not the rabbanim,
for reasons I will shortly explain; not animals’ rights advocates, who
justifiably noted that this method is cruel; not the shochatim and plant
workers, because it is unnecessarily dangerous; and, presumably, not the
animals themselves, although they were not consulted.

“Many rabbonim frowned on shechitah teluyah
because it inflicts unnecessary pain on the animals (Shu”t Mishneh
Halachos
16:2). Although this was perhaps the most popular method of shechitah
both in North and South America until fairly recently, many rabbonim had
additional reasons to disapprove of shechitah teluyah.”

Pulling a sefer off his bookshelf, the rav
continued. “Let me read you a teshuvah from Rav Pesach Frank, the Rav
of Yerushalayim for several decades, written on the 19th of
Elul, 5755, to Rav Shmuel Yaakov Glicksburg, then the rav of Buenos
Aires, Argentina:

‘I rejoiced when I read your letter saying that you have
succeeded to organize a shechitah where the animals are not hung,
similar to what we have here in Eretz Yisrael. This is a tremendous
accomplishment, and the merits of the public are yours. If you have any other
news about the kashrus of the shechitah, please notify me, as I am
often asked whether one may eat the meat from Argentina and am constantly
uncertain how to respond. I would like to hear from his dignity if I can
guarantee to a G-d-fearing person that this meat is kosher without any
concerns, because this is what they ask me’ (Shu”t Har Tzvi, Even HaEzer #189).

“In an article published in the rabbinic journal Hamaor, in
Teiveis, 5719 Rabbi Eliezer Silver ruled that one may not use shechitah
teluyah because he had concerns about the actual shechitah being non-kosher.
He felt that the gentile holding the animal might actually push the animal into
the shechitah knife, which would involve the gentile partially
performing the shechitah and thereby invalidating it.

“Rav Silver recorded that during
the years the Ridbaz (who served as the Rav of Slutzk, Tzefas, and served
briefly as the Chief Rabbi of Chicago) spent in the United States, he once saw
a shechitah teluyah in Denver and prohibited it. Also, when a shaylah
about this matter was sent from Caracas, Venezuela to Rav Menashe Klein, he
prohibited it (Shu”t Mishneh Halachos 9:151). Similarly, in an
interesting letter to Rav Pinchas Hirschsprung of Montreal, Rav Moshe Feinstein
describes a shechitah teluyah facility that he saw in Toronto.
Although his initial reaction was that there was basis to allow the shechitah,
he told them that he would need to examine the matter further. Upon further
research, Rav Moshe withdrew his original psak permitting this shechitah
and permitted it only if the animal’s head was secured during the shechitah,
and not if it was simply held by workers (Shu”t Igros Moshe, Yoreh Deah 2:13).
Rav Moshe makes no mention of any of the other concerns about this shechitah,
such as the possibility that the gentile may move the animal into the shechitah
or about tzaar baalei chayim.

“Nevertheless, this method of shechitah
was very popular in the United States even among some of the most responsible hechsherim.
When I was involved in examining shechitos, back in the 1980’s, most shechitos
that I saw were still shechitah teluyah.

“As the animals’ advocacy
organizations became stronger and plant procedures came under the scrutiny of
the general public, shechitah teluyah became less popular and was
replaced with shechitah in a pen. Although the pen would certainly
resolve Rav Moshe’s concern that the head must be secured during the shechitah,
it may have created its own issues.”

At this point Yankel interrupted
the Rav’s monologue: “What do you mean by shechitah in a pen?”

“I have seen many such pens, each one with a slightly
variant design. The basic idea is that the entire animal, especially its head,
is secured by a pen operated either by electricity or through hydraulic power,
which holds the animal securely during the shechitah. This appliance makes
the shechitah very safe for the shocheit, and he has plenty of
time in which to perform the shechitah and to check afterwards that it
was performed correctly. In the United States, this became the standard method
for most shechitos, but it is unusual to find such a shechitah in
Europe, in Eretz Yisroel, or in those in South America that shecht
for a chareidi market.

“Why do they not use this method
in Europe?”

Again the Rav perused his
well-stocked bookshelves and produced a sefer Yankel had never seen
before.

“In 1988, a movement was afoot in
England to require that all animals be shechted only while standing in a
pen. However, there was fierce opposition to requiring all Anglo-Jewish hechsherim
to shecht with this device. This volume, Bishvilei Hashechitah,
by an English shocheit named Rabbi Simcha Bunim Lieberman, includes an
essay that cites many reasons to oppose the change.

“1. The shocheit has to shecht
upwards. This is a highly technical halacha, but there are authorities
who contend that it is prohibited to shecht upwards, predominantly out
of concern that this might cause the shocheit to press rather than slice
while he is shechting, violating the Torah rule of drasah.

“2. A shocheit who is shechting
in a manner to which he is accustomed should not suddenly be required to shecht
in a different way, foreign to his experience.

“3. The greatest concern was that
since these devices are usually custom made, it is possible that the mechanical
force used to control the animal’s head may be so strong that it renders the
animal tereifah, before the shechitah takes place. The contention
was that such a device should not be used, without first seeing whether the
animal appears physically unharmed, and, ideally, the animal should be checked
carefully afterwards.”

Yankel asked Rav Posek if he was
familiar with the particular hechsher that Miriam had seen in the
neighbor’s house.

“Although I have not been in that shechitah
recently, I was there once many years ago. I cannot say that I was that happy
with the operation. The shochatim and bodakim all needed to work
quickly to keep pace with the speed of the assembly line production. I found it
difficult to imagine that they could do their jobs properly in the time
allowed. As I recall, I even mentioned this to the rav hamachshir, who
responded that he hires exclusively competent personnel who are up to the task.
I left very unsatisfied.”

“What would you tell our neighbor?”

“If she seems to be the type of
person who wants to do the correct thing, tell her: ‘According to what I have
heard, people feel that the kashrus standard used by that company is not
the highest.’ This statement is accurate and reflects exactly what you know.”

CONCLUSION

We now more fully appreciate the difficulties in maintaining
high kashrus standards, particularly when producing meat. We should
always hope and pray that the food we eat fulfills all the halachos that
the Torah commands.




Paying Workers on Time – The Mitzvah of “Bal Talin”

In honor of Yaakov Avinu’s contractual dealings with his
father-in-law, I present:

In parshas Ki Seitzei, the Torah instructs, “Beyomo
sitein secharo ve’lo sa’avor alav hashemesh –
On that day [the day the work
was completed] you should pay his wage, and the sun shall not set [without him
receiving payment]” (Devarim 24:15). The Torah mentions two mitzvos; a
positive mitzvah (mitzvas aseh) and a negative mitzvah (mitzvas lo
sa’aseh
) to guarantee that a worker is paid before sunset of the day
that he performed his job. Thus, someone who pays his worker on time fulfills a
positive mitzvah, whereas if he neglects to pay him on time and the worker
demands payment, he has transgressed a lo sa’aseh.

The Torah gives us a definition of “on time” – before
sunset. This mitzvah is mentioned in parshas Kedoshim as well. However,
there the Torah presents the mitzvah somewhat differently: Lo salin pe’ulas
sachir it’cha ad boker
, “The wages of a worker shall not remain with you
until morning” (Vayikra 19:13). Here, the Torah requires that the worker
be paid before morning, implying that one has the entire night to pay
him, rather than being responsible to pay him before the day is over. The two
verses appear to be contradictory, one implying that I must pay my worker
before sunset, the other implying that I have until morning.

Chazal resolve this conflict by explaining that
there are indeed two deadlines, the end of the day and the end of the night,
but that the two pesukim discuss different cases. The pasuk in Ki
Seitzei
discusses a worker whose job finished during the day or precisely
at the end of the night. Such a worker must be paid before the following
sunset, which is the first deadline that arrives after he completed his job.
However, the pasuk in Kedoshim refers to a worker who completed
his job at the end of the day or during the night. Such a worker must be paid
by morning.

Thus, the two verses together teach that there are two
payment deadlines, one at sunset and the other at daybreak. One is obligated to
pay his worker before the next deadline that occurs after the job is completed.
If the work was completed before the end of the day, he must be paid by sunset.
If the work was completed at night, he must be paid before daybreak (Bava
Metzia
111a, quoting the amora, Rav). It should be noted that one
violates the lo sa’aseh only in a case where the worker demanded payment
and the owner refused to pay. Furthermore, as we will note, there is no
violation if it is understood or prearranged that payment will be delayed.

WHAT TYPE OF WORK IS INCLUDED IN THIS MITZVAH?

The Torah was very concerned that a worker be paid on
time. This mitzvah applies not only to an employee, but also to a contractor
hired to perform a specific job; he must be paid by the first deadline after
the job is completed. It also applies to someone who works on the client’s item
on his own premises, such as a repairman of small appliances, or people who do
dry cleaning and tailoring. Payment on these items is due by the first deadline
after the item is returned (Shulchan Aruch Choshen Mishpat 339:6).

Likewise, someone hired for a specific length of time must
be paid by the first deadline after completion of employment. In all these
situations, if the job is completed (or the item returned) during the day, the
worker should be paid by sunset. If the job is completed by night, he should be
paid by morning.

This mitzvah applies to all kinds of hired work,
whether the worker is a contractor or an employee, permanent or temporary, poor
or wealthy, adult or minor. Thus, by paying on the day we receive the service,
we fulfill the mitzvah of beyomo sitein secharo, paying a worker on the day
he completes a job, as well as fulfilling other mitzvos mentioned later
in this article. The following is a partial list of workers included in this
mitzvah: automobile and appliance repairmen, babysitters, dentists, dry
cleaners, house cleaners, housing contractors, gardeners, lawyers, physicians,
psychologists, rebbes, teachers and tutors.

EXAMPLE:

Shimon picked up his garment from the tailor, who
asked him for payment. Shimon forgot to bring money to pay the tailor, and
asked the tailor if he minds waiting a couple of days until Shimon would be
back in the neighborhood. The tailor answered that his rent is due today, and
he is short on funds. Shimon is obligated min haTorah to make a
special trip to pay the tailor today. Of course, his reward for fulfilling the
mitzvah is increased many times because of the inconvenience involved.

Similarly, one is required to pay the doctor on the
day of the appointment, unless other provisions have been prearranged. If I
hire a teenager to mow the lawn, I must pay him when he finishes the job. I
should not delay payment to a later date because of my convenience.

The employee or hiree must be paid in cash (Tosafos,
Bava Basra
92b; Shach Choshen Mishpat 336:4) or by check that he can
readily convert into cash. One may not pay a worker or contractor with
merchandise unless this was arranged in advance.

The employer has not fulfilled his mitzvah if he pays
with a post-dated check or a check that cannot be cashed immediately (such as, if
the bank is closed that day). Again, if the employee is told before he is hired
that these are the arrangements, then there is no violation.

In keeping with the Torah’s concept of protecting
workers’ rights, it is prohibited to call a repairman knowing that I have no
money to pay him, without telling him that payment will be delayed (see Ahavas
Chesed
1:10:12).

RENTALS

Bal talin
also applies to rental arrangements. Thus, if I rent an appliance or an
automobile, I must pay the rental fee by the sunset or daybreak after the
rental is completed.

EXAMPLE:

Leah borrows a wedding dress from a gemach that
charges a fee for dry cleaning and other expenses. When she returns the dress,
she should pay the gemach before sunset or daybreak, whichever comes
first.

SMALL WAGES AND SMALL EMPLOYEES

Even the delay of a wage less than a perutah is
a violation of bal talin (Ritva, Bava Metzia 111b). As mentioned
above, I am required to pay a minor on the day he performs a job for me. Thus, if
I hire a child to run an errand for me, I must pay him that day (Ahavas
Chesed
1:9:5). Furthermore, if I offer a young child a candy to do a job, I
am required to give him the candy on the day he did the job.

EXAMPLE:

Reuven asked an eight-year-old to buy him an ice cream
cone, offering the child to buy himself a cone at the same time. The grocery
had only one cone left. If Reuven takes the cone for himself, he must make sure
to buy the child a cone before sunset that day. (In this instance, it will not
help Reuven if the child says that he does not mind, since a child cannot waive
his legal rights.)

Running a large business or being preoccupied is not a
valid reason for not paying on time (Tosafos, Bava Metzia 111a
s.v. Amar). Furthermore, arranging that someone else pay the workers or
contractors does not exempt the owner from responsibility if the agent is
remiss. This is because of a halachic principle that one may not assume
that an agent carried out a Torah command on my behalf (see Nesiv Hachesed 1:10:25).

WHAT IF I DIDN’T REALIZE I WOULD BE EXPECTED TO PAY
THAT DAY?

Unless there was a reason to assume that I was not
expected to pay until later, I am responsible to pay the day the work is
performed.

EXAMPLE:   

Mr. Siegal enters the doctor’s office and sees a sign
on the wall, “Payment is due when service is rendered.” Mr. Siegal had assumed
that he would pay when the bill arrives, and he has no money until his next
payday. He should tell the receptionist of his inability to pay and request that
the doctor be so informed before the appointment.

WHAT IF IT IS
ASSUMED THAT THE WORKER IS PAID LATER?

The Gemara (Bava Metzia 111a) discusses
the following situation and rules it halachically acceptable. The Jewish
merchants of Sura hired workers and paid them at the end of the next market
day, when the merchants had cash. Until market day, it was assumed that the
merchants would use their available cash to purchase more merchandise (Ritva
ad loc.), and the workers were always paid after market day. The Gemara
states that these merchants did not violate bal talin, since it was
assumed that the workers would not be paid until the following market day.

A contemporary analogy is when a business pays its
workers on Tuesdays for the week’s work or on the first of the month for the
previous month. In these situations, there is no violation of bal talin,
since this is the agreed arrangement.

WHAT IS THE HALACHA IF AN AGENT HIRED THE WORKERS?

The Gemara (Bava Metzia 110b) discusses
a case where the foreman hired workers on behalf of the employer, notifying
them that he is not responsible for their wages. Subsequently, the wages were
delayed. The Gemara states that neither the foreman nor the employer
violated bal talin. The foreman was not personally obligated to pay the
workers, and the owner did not violate bal talin, because he did not hire the
workers himself. Nevertheless, he is still required to pay them on time, if
possible (Shulchan Aruch Choshen Mishpat 339:7).

WHAT SHOULD I DO IF I MAY NOT BE ABLE TO PAY ON THE DUE
DATE?

To avoid violating any Torah mitzvos, the owner should
tell the workers before they begin working that he is making a condition that
they forgo their right to be paid on time (Nesiv Hachesed 1:10:24).

WHAT SHOULD THE OWNER DO IF HE WILL BE OUT OF TOWN ON
PAYDAY?

The owner is responsible for having his workers paid on
time. If he will be absent when his workers finish, he must make provisions to
pay them on time (Ahavas Chesed 1:10:12).

EXAMPLE:

Mrs. Schwartz is taking her child to the doctor and has hired a babysitter to take care of her other young children until her teenage daughter comes home at 4:00 p.m. Unless Mrs. Schwartz arranges otherwise, she must see that her babysitter is paid before sunset.

There are several ways Mrs. Schwartz can avoid violating the Torah’s law. When hiring the sitter, Mrs. Schwartz can tell her that she is hiring her with the understanding that the sitter waives her right to be paid before the day ends. In this case, if Mrs. Schwartz fails to pay the sitter before sunset, she will not violate any prohibition, although she will have missed the opportunity to perform a mitzvah. Therefore, it is better if Mrs. Schwartz gives her teenage daughter money to pay the sitter. This way Mrs. Schwartz has fulfilled the mitzvah of paying her worker on time. Optimally, Mrs. Schwartz should do both; that is, she should ask her sitter to waive her right, just in case the sitter is not paid on time, and arrange for her daughter to pay, so Mrs. Schwartz fulfills an extra mitzvah.

If the sitter did not waive her right to be paid before
sunset, Mrs. Schwartz must check with her daughter later in the day to see that
she did, indeed, pay the babysitter (see Nesiv Hachesed 1:10:25).

WHAT IF THE OWNER HAS NO MONEY WITH WHICH TO PAY?

Kalman Mandel’s business is running into a cash-flow
problem, and he is having difficulty paying his contractors. There are several shaylos
he should ask his rav:

(1) Is he required to pay his contractors from his own
personal money, or can he assume that, since his business is incorporated, he
is obligated to pay them only from his business account?

(2) How much is the business required to liquidate to
pay the contractors?

(3) How aggressively is the business required to
collect its receivables?

(4) Is he required to sell merchandise at a lower
price? At a loss?

Chofetz Chayim (Ahavas Chesed 1:9:7) rules that one is required to borrow money to
pay one’s workers on time, whereas Pischei Tshuva (339:8) and Graz
rule that it is the correct thing to do (midas chassidus), but it is not
required.

According to Biur Halacha (242:1), if one does
not have enough money both to pay wages due on Friday and to make Shabbos, one
is required to pay the wages, even if, as a result, he will not have money for
Shabbos.

Similarly, if sunset is approaching and the owner has
not yet paid wages that are due today, he must attend to paying his workers, if
they are demanding payment, even if the result is that he is unable to daven
mincha.

As we have mentioned before, if the employee does not
claim payment or states that he doesn’t mind if the payment is delayed, the
employer does not violate bal talin. Nevertheless, the employer should
still attempt to pay on time, and he fulfills a mitzvah by doing so.

It is wrong for the owner to delay paying the worker,
forcing him to repeatedly return for payment. These actions violate the mitzvah
taught by the pasuk in Mishlei, “Al tomar le’rei’acha lech
vashoov umachar etein ve’yeish itach –
Do not tell your neighbor ‘Go and
come back, I’ll pay you tomorrow,’ when you have [the money] with you” (Mishlei
3:28).

If the employer refuses to pay his worker altogether, he
violates the prohibition of Lo sa’ashok es rei’acha, “Do not hold back
payment due your neighbor” (Vayikra 19:13). If the employee or
contractor is needy, the employer violates an additional prohibition, Lo
sa’ashok sachir ani ve’evyon
, “Do not hold back payment due to a poor or destitute
person” (Devarim 24:14).

The Gemara (Bava Metzia 111a) counts a total
of seven Biblical mitzvos involved in withholding wages, including gezel,
stealing, as well as the above-mentioned mitzvos.

WHAT SHOULD THE OWNER DO IF HE IS SHORT ON MONEY?

What should the owner do when he does not have enough
money to pay all his employees and contractors? The Chofetz Chayim
discusses this exact shaylah in his sefer Ahavas Chesed. He rules
that if some of the workers are poor, he should pay those workers first. If all
or none of the workers are poor, he should divide the available funds among
them equally.

MAY THE OWNER OFFER
COMPENSATION FOR DELAYED PAYMENT?

The owner missed his deadline. Feeling bad, he considers compensating
his workers by providing them with a bonus for their patience. Unfortunately,
although he means well, the owner has now incurred a different prohibition,
because this is considered as paying interest (ribis). Since he is
obligated to pay his workers, the amount owed is a debt. The prohibition
against interest applies to any debt, even if it did not originate as a loan.
Therefore, an employer who delayed paying his workers or contractors cannot
offer them compensation for the delay, nor can they charge him a late fee (Shulchan
Aruch Yoreh Deah
173:12; Rema ibid. 176:6).

Similarly, if the owner is tight on cash, he may not
offer his workers, contractors or other creditors a bonus if they agree to wait
for payment. This situation might entail a Torah prohibition of ribis (see
Bris Yehudah pg. 451 ftn 15). If necessary, he could arrange this with a
heter iska, and a rav should be consulted.

THE CONTRACTOR IS OVERCHARGING ME. WILL I VIOLATE BAL
TALIN
IF I HOLD BACK PAYMENT?

When a person feels he is being overcharged, he
usually considers withholding part of the payment until the matter is
clarified. If indeed he is correct, this plan is not a problem. However, if he
is mistaken and the contractor deserves, and demands payment for, the total
amount, it means that he has violated bal talin by not paying the
contractor on time. For this reason, the Chofetz Chayim suggests always
negotiating a price with a contractor or repairman in advance.

SUGGESTION:

If the repairman is uncertain how much the work will
cost, tell him before he starts that you are stipulating that he waive his
right to be paid on time (see Graz Vol. 5 pg. 890 #18). This avoids
violating the prohibition of bal talin should a dispute develop between
the parties.

If this was not stipulated in advance, and a dispute
develops, discuss with a rav or posek how to proceed. Bear in
mind that if the worker is demanding payment and the contracting party is
wrong, he might end up violating a serious Torah prohibition by not paying on
time.

It is important that people become more familiar with
the details of bal talin in order to conduct their business dealings
according to halacha. Unfortunately, not everyone realizes that they
perform a mitzvah each time they pay their workers on time. Apparently, this is
not a recent phenomenon. Over a hundred years ago, the Chofetz Chayim
decried the fact that otherwise observant people were inattentive to the
observance of this mitzvah. He attributed this to ignorance of its details.
Hopefully, this article will spur people to learn more about this mitzvah and
the great reward for being attentive about its observance.




Writing a Sefer Torah

Question #1: Why not?

“Why doesn’t everyone write his own Sefer Torah?”

Question #2: Partners in Torah

“May two people partner
together to fulfill the mitzvah of writing a Sefer Torah?”

Question #3: Traditional
Chapters

“Why did some gedolei
Yisroel
not use perakim and pesukim numbers to identify pesukim,
whereas others did?”

Introduction:

The last mitzvah mentioned in the Torah, which we are taught
in parshas Vayeileich, is that each individual is required to write a Sefer
Torah
. The words of the Torah from which we derive this mitzvah are, Ve’atah
kisvu lachem es hashirah hazos velamdah es Bnei Yisroel simah befihem lema’an
tihyeh li hashirah hazos le’eid bivnei Yisroel,
“And now, write for
yourselves this song, and teach it to the Children of Israel, place it in their
mouths, so that this song shall be a testimony among the Children of Israel” (Devorim
31:19). We should note that two of the targumim, the early Aramaic
translations of the Torah, authored by Onkelus and by Yonasan ben Uziel, both
translate the word shirah not as “song,” but as
“praise.” On the other hand, both Rashi and the Rambam (Hilchos
Sefer Torah
7:1) explain the posuk a bit differently from the Targum,
translating shirah as “song” and understanding it to refer to
the song of parshas Ha’azinu. The Rambam explains the posuk
to mean that one should “write the Torah, which contains the song of Ha’azinu.”

The Baal Haturim on the posuk
notes two gematriyos, one that the words velamdah es Bnei Yisroel
equal zeh Torah shebiksav,“this is the Written Torah,” and the
words simah befihem equal zeh Talmud, “this is the Oral Torah.”

Nothing missing

Fulfilling the mitzvah of writing a Sefer Torah
requires that one write an entire Sefer Torah — even if one letter is
missing, one has not fulfilled the mitzvah (Rambam). A Sefer Torah
must be written in black ink on parchment. Parchment is made from animal hide,
and the mitzvos of Sifrei Torah, tefillin and mezuzos
require that the parchment is produced from the hide of a kosher species. There
is no halachic requirement to make it from an animal that was
slaughtered in accordance with Jewish law, and, as a matter of fact, the hide
is usually not from animals that were slaughtered according to halacha.

Lishmah

The tanning of the hide into parchment must be done lishmah,
for the purpose of using it for a Sefer Torah. At the first step of the
tanning, the Jew who processes the hide into parchment should state that he is
processing it lishmah. Whether or not a non-Jew can perform some of the
tanning under a Jew’s supervision, or whether doing this undermines the
requirement that the processing must be lishmah, is a lengthy discussion
among early halachic authorities (Rosh, Hilchos Sefer Torah #3).

The writing of the Sefer Torah must also be performed
lishmah. Before he begins writing, the sofer should state aloud,
“I am writing this Sefer Torah for the sanctity of Moshe Rabbeinu’s
Torah” (Rosh, Hilchos Sefer Torah #4). There is an additional
requirement that, when writing the names of Hashem, the scribe write
them for the sake of creating holy names.

Dipping the quill

There is an interesting halacha that, when writing
the name of Hashem, the sofer should not dip his quill into the
ink immediately before writing His name. The reason is that the first letter
written after a quill is dipped into ink often smears, and one does not want
this to occur while one is writing Hashem‘s name.

Scoring

Prior to writing the words of the Torah on the specially-made
parchment, one must score the parchment in a way that leaves no written marks.
This process, called sirtut, is accomplished by running an awl or other
sharp instrument across the parchmentto mark the lines on which one
plans to write (Rambam, Rosh, Tur; cf. Rabbeinu Tam, who disagrees).
This law is a halacha leMoshe miSinai, meaning that it is a mesorah,
a tradition, that we were taught by Moshe Rabbeinu, who learned it
directly from Hashem when he learned the Torah on Har Sinai.

Punctuating Torah

We have a mesorah how the words of the Torah are
vowelized and punctuated; the markings indicating this appear in every standard
chumash. However, in a Sefer Torah itself, halacha dictates
that no periods, other punctuation marks, reading aids or music notes appear.

Chapters

Similarly, the division of the Torah into chapters,
perakim
, is originally from non-Jewish sources and is never used in
handwritten Sifrei Torah. Indeed, this is true not only of the Torah,
but also in most of the rest of Tanach. The chapter divisions that are
commonly used for most of Tanach do not originate in Jewish sources. The
two books that are exceptions, where the chapters are according to Jewish
sources, are Tehillim and Eicha. In all other kisvei hakodesh,
the division into pesukim is part of our tradition, but not the division
into chapters. Consequently, the numbering of the pesukim, which is
based on the non-Jewish chapter division, is also not our tradition.

At this point, we can address one of our opening questions:
“Why did some gedolei Yisroel not use perakim and pesukim
numbers to identify pesukim, whereas others did?”

Many of our gedolim, for example, the Chofetz
Chayim
and the Ohr Somayach, refrained from referring to pesukim
according to chapter and posuk. Instead, they would refer to them by the
parsha of the week and its location within the parsha. Clearly,
they did not want to use a system that was non-Jewish in origin. Those who do
use the chapter and posuk system felt, presumably, that since there is no
prohibition to use this system, which makes it much easier for the student to
locate the posuk being quoted or studied, one may use it to facilitate
the student’s learning.

Pesuchos and sesumos

The Torah itself is divided into sections using a different
system, which are called pesuchos and sesumos. These are
indicated by the letter “pei” or “samach” in our standard chumashim.

There is a dispute among rishonim exactly how one is
to make the pesuchos and sesumos. Both approaches agree that when
the pesucha is in the middle or beginning of a line, it is indicated by
leaving the rest of the line blank, and then continuing the next passage on the
next line. When a sesumah is in the middle or beginning of a line, it is
indicated by leaving blank an area at least nine spaces long and then
continuing the next passage on the same line. However, when a pesucha or
sesumah is at the end or towards the end of a line, the poskim
dispute how it must be written. In order to avoid writing a Sefer Torah
that is kosher only according to some authorities, accepted practice is to
avoid having a pesucha or sesumah at the end or towards the end
of a line. We will see shortly how we make sure that this happens.

Write the letters carefully

The sofer must be careful to write the letters
clearly and to follow the halachic rules governing how the letters are
to be written. He must also make sure that each letter is completely surrounded
by parchment. This last requirement, called mukaf gevil, means that each
letter must be written in a way that it does not connect to another letter, nor
may it run to the top or bottom of the piece of parchment on which it is
written.

One of the rules for writing a Sefer Torah is that
the scribe must have another Sefer Torah or a tikun in front of him
that has all the words of the Torah correctly spelled. In practice, sofrim
use a tikun not only to help them spell the words correctly, but to
mimic their exact placement on the line and column. Among other reasons, this
is to avoid having the sesumos and pesuchos occur towards or at
the ends of lines, which creates a halachic problem, as mentioned above.

Size of letters

A Sefer Torah may be written with very small letters
or with very large ones, but the relative size of the letters within the same Sefer
Torah
must be consistent, except for those few letters that have a
tradition to be written larger or smaller.

The scribe who writes a Sefer Torah must be a
yarei
shamayim and knowledgeable in all the laws of writing a Sefer
Torah
. There are many more details of these laws, far more than we can
discuss in this article. Suffice it to say that numerous works are devoted
entirely to the topic of the correct writing of letters in a Sefer Torah.

Someone who does not believe in the G-d-given nature of the
Torah at Har Sinai is ineligible to be a scribe for Sifrei Torah, tefillin
and mezuzos. Such a person may write a kesubah, which is halachically
a contract and not holy writing.

How does it dry?

After writing a section of parchment that needs to dry, it is
prohibited to suspend it upside down to prevent dust from settling on it.
Notwithstanding that this is a simple method for making sure that the parchment
remains clean while drying, it is a disrespectful way to treat the words of Hashem
(Tur, Yoreh Deah Chapter 277).

Stitching

The pieces of parchment are stitched together with a
specially-made thread processed from sinews of kosher animals. (As before, the
animals must be of kosher species, but there is no requirement that they be
kosher-slaughtered.) It should not be stitched all the way to the top or all
the way to the bottom (Tur, Yoreh Deah Chapter 278).

Requirement

Until now, we have been discussing the halachos
germane to writing a Sefer Torah, all of which are essential to fulfill
this mitzvah. At this point, we will discuss some of the other laws germane to
fulfilling the mitzvah.

The Gemara writes that a person who purchased a Sefer
Torah
that was not kosher, even if only because of one letter, and then
repaired the error, it is considered as if he wrote an entire Sefer Torah
(Menachos 30a). This is because one is not permitted to own an incorrect
Sefer Torah.

Why would someone get credit for writing the entire Sefer
Torah
when all he did was write one letter? The answer is that a Sefer
Torah
containing mistakes must be repaired or checked within 30 days.
Otherwise, one should place it in genizah. Thus, the individual who
corrected the one letter took an incomplete Sefer Torah that would have
required genizah and made it into a source that can be used for study
and reading the Torah.

Selling a Sefer Torah

The Gemara teaches that one may not sell a Sefer
Torah,
even if he does not have food to put on his table (Megillah
27a). There are two situations in which one is permitted to sell a sefer Torah:
(1) one needs funds to study Torah, or (2) one needs funds to get married (ad
locum). The Rema (Yoreh Deah 270:1) adds a third case, permitting
the sale of a Sefer Torah in order to have funds with which to fulfill
the mitzvah of pidyon shevuyim, redeeming captives.

One may not sell a Sefer Torah, even if he owns
several already, and even if he wants to sell an older one in order to have the
funds with which to purchase a newer one (Tur, Yoreh Deah, Chapter 270).

Purchasing a Sefer Torah

Does one fulfill the mitzvah if one purchases a Sefer
Torah
? Based on his understanding of the Gemara (Menachos 30a),
the Rema rules that one fulfills the mitzvah only if the Sefer Torah
had mistakes and he purchased it and hired a sofer to repair it (or
repaired it himself); but, if the Sefer Torah was in good order, he has
not fulfilled the mitzvah of writing a Sefer Torah by purchasing it.

Indeed, there is a dispute among the rishonim
concerning this halacha: Rashi (Menachos 30a) and the Sefer
Hachinuch
explain that one fulfills the mitzvah in a non-optimal way by
purchasing a Sefer Torah, whereas the Rambam, Smag, Shulchan
Aruch
and Rema all rule that one is not yotzei by purchase,
because the Torah states that the mitzvah is to “write.”

The Minchas Chinuch notes that if he hired a sofer
to write a Sefer Torah and then failed to pay him, not only has he
violated the Torah prohibition of failing to pay a hiree, he has also not
fulfilled the mitzvah of writing a Sefer Torah.

Gave it away

According to the Toras Chayim (Sanhedrin 21,
quoted by Pischei Teshuvah, Yoreh Deah 270:3 and by Minchas
Chinuch
), someone who sold, lost or donated his Sefer Torah no
longer fulfills the mitzvah and he must write another one. The Sefer
Hachinuch
implies that he agrees with this approach, since he writes that
the mitzvah is that each individual should own a Sefer Torah. However,
there are prominent authorities who dispute this conclusion, ruling that once
he fulfilled the mitzvah by writing a Sefer Torah, selling it or giving
it away does not invalidate his fulfilling of the mitzvah (see Pischei
Teshuvah
).

Partners in Torah

At this point, let us examine another of our opening
questions: “May two people partner together to fulfill the mitzvah of
writing a Sefer Torah?”

The Pischei Teshuvah, an anthologized commentary on
the Shulchan Aruch, quotes a few poskim who discuss this
question. Most are inclined to rule that one has not fulfilled the mitzvah of
writing a Sefer Torah this way.

The Sefer Hachinuch defines the mitzvah as being that
each person must own a Sefer Torah, which sounds as if he also holds
that one does not fulfill the mitzvah by partnering with someone else to hire a
sofer to write it.

The Sefer Hachinuch also writes that the optimal hiddur
is to write the Torah himself, with his own hand. If someone is unable to
write it himself, he should hire someone to write it for him.

Purchasing seforim

Does one fulfill the mitzvah of writing a Sefer Torah
by purchasing seforim used to study Torah? The Rosh writes: Today,
when people write a Sefer Torah and it is then left in shul to be
used for the mitzvah of kerias haTorah, it is a positive mitzvah on
every Jewish male who can afford it to write Chumashim, Mishnayos,
Gemaras and their commentaries, in order that he and his children be
able to study them. This is because the mitzvah of the Torah specifies “in
order to learn from them,” and with the Gemara and commentaries one
understands the mitzvos and their details well (Hilchos Sefer Torah #1).

The Beis Yosef (Yoreh Deah 270) explains that
the Rosh was not coming to rule that there is no longer a mitzvah to
write a Sefer Torah, but that there is also a mitzvah to write
other seforim, and that this acquisition is a bigger mitzvah than
writing a Sefer Torah. In the Shulchan Aruch, he reflected this
opinion. However, there are prominent acharonim who disagree with the Shulchan
Aruch
and understand that the Rosh’s conclusion is that there is no
mitzvah today to write a Sefer Torah (Perisha; Shach). This
understanding of the Rosh explains that the mitzvah of the Torah is to
produce materials used to study Torah. Since a Sefer Torah is not used
today for this purpose, writing one does not fulfill the 613th mitzvah of the
Torah.

According to this approach, there
is an easy answer to our opening question: “Why doesn’t everyone write his
own Sefer Torah?”

There are other reasons to explain
why people do not write their own Sefer Torah. Another approach is that
one is not required to spend more than a fifth of what he owns to fulfill a
mitzvah (Minchas Chinuch). Thus, many poor and middle-class people are
exempt from the mitzvah. (See the Sha’agas Aryeh, Shu”t Chasam Sofer,
Yoreh Deah
#52 and #54 and the Minchas Chinuch for yet other reasons
to exempt people today from the mitzvah of writing a Sefer Torah.)

Conclusion

The goal of the Torah’s mitzvah to
write a Sefer Torah is so that, wherever Jews live, there should be
readily available seforim to study Torah. However, if this was the
Torah’s only concern, it would have required each individual to purchase seforim
according to his ability. Instead, the Torah required each individual to write
a Sefer Torah, thus implying two additional ideas. (1) The Torah wanted
each individual to be involved in the providing of Torah learning material,
regardless of his personal financial situation. (2) The Torah wanted each
individual to be involved, himself, in the writing of Torah materials and their
procurement, and not to deputize this mitzvah to others, even when they are
more skillful.

The Torah is referred to as a Tree
of Life.  B’nei Yisroel are depicted as an agricultural
people.  As the Torah is, indeed, a source — the Source — of life, it is
certainly appropriate that we care for its proper “planting” and
flourishing, as outlined in halacha.




Maaser Sheini

Photo by david Kadosh from FreeImages

Question #1: Where?

Many mitzvos can be performed only between the
“walls” of Yerushalayim. Do these laws apply to everywhere within the walls of
today’s “Old City”?

Question #2: What?

“What may I not remove from Yerushalayim?”

Question #3: When?

“When am I permitted to eat maaser sheini?”

Introduction:

This week’s parsha includes the mitzvah of maaser
sheini. Although people currently living in chutz la’aretz often
feel that they do not need to know the laws applicable to the agricultural mitzvos
of the Torah, everyone must know the basic laws of this mitzvah for many
reasons, including:

1. When in Eretz Yisroel, to which we all aspire, we
need to be sure that all terumos and maasros are properly
separated. Someone living outside of Eretz Yisroel also needs to know
the details of the laws on produce that grows in Eretz Yisroel.

2. We daven three times daily for Moshiach to come so that we can live in Eretz Yisroel and observe the mitzvos that apply there. Although most of the laws of maaser sheini do not apply today even in Eretz Yisroel, they will all apply again, iy’H, when the Beis Hamikdash is rebuilt and we can achieve a state of taharah by virtue of the ashes of the parah adumah.

3. Fruits of chutz la’aretz may have the status of neta
reva’ie
, which shares the laws of maaser sheini.

The basics

Produce grown in Eretz Yisroel and the lands nearby
must have several small portions separated from it before it may be consumed.
These are:

Terumah

First, a small amount is separated as terumah, which
is property of the kohen. When we are all tahor, the owner gives
the terumah to a kohen of his choice. Terumah may be eaten
by any close member of the kohen’s family – including his wife, sons,
and unmarried daughters — as long as they are completely tahor.

Since no kohen is tahor today, terumah
may not be eaten. If the terumah is itself tamei, it is
destroyed, preferably by burning it. If the terumah is tahor, we are
not permitted to eat it, nor to destroy it. What does one do with it?

We put it in a place where no one will mistakenly eat it,
and leave it there until it decomposes to the point that people will not eat it.
At that point, it is disposed of. We will soon explain why decomposition
permits one to destroy terumah.

Maaser rishon

After terumah has been separated, a tenth of the
remaining produce is separated as maaser rishon, which is the
property of the Levi. The Levi is required to separate one tenth
of what he receives, which is called terumas maaser and has all
the laws of terumah as explained above. The remaining maaser rishon
has no sanctity, and therefore may be eaten by anyone, even when tamei.
Therefore, maaser rishon can be eaten today, even though we are
all tamei, and the Levi can sell it or give it away to whomever
he chooses. Furthermore, none of the restrictions we will discuss shortly
regarding redemption or use applies to maaser rishon.

Maaser sheini/maaser ani

After maaser rishon is separated, there is an
obligation to set aside a tenth of what is left. Depending which year it is
relative to the shemittah cycle, either maaser sheini or maaser
ani is separated.

These two types of maaser are halachically
very different. Maaser ani is the property of the poor and has no
sanctity, similar to maaser rishon. The owner of the field
decides to which poor person or persons he gives the maaser ani. There
is detailed halacha defining who qualifies as “poor” for the purposes of
this mitzvah, but since the theme of this article is maaser sheini
and not maaser ani, we will leave this question for a different
time.

When is one required to separate maaser sheini,
and when is one required to separate maaser ani? The halacha is
that Eretz Yisroel follows a seven year shemittah cycle. In the
first, second, fourth and fifth years, the second tithe is maaser sheini,
and in the third and sixth years it is maaser ani. Since shemittah
produce is ownerless, there are usually no terumah and maasros
separations that year. In the unusual instances where there is, which is a
topic for a different time, there is extensive halachic discussion
whether the second tithe is maaser sheini or maaser ani.

Maaser sheini, the topic of our article, must
be eaten in Yerushalayim by people who are tahor. Any tahor Jew
is permitted to eat it, but it must be eaten within the walls of the ancient
city of Yerushalayim. We will soon discuss what that means and we will also see
that there are many other laws that apply to it. We will also discuss what can
be done if it is impractical to transport all of one’s maaser sheini to
Yerushalayim.

Which maaser?

We should note that the term maaser, without
specifying which one, is used sometimes to refer to maaser rishon
and sometimes to refer to maaser sheini, notwithstanding that
their laws are very different from one another. Usually, one can understand
from context which maaser is intended. If the context alludes to maaser
owned by a Levi, or to the first maaser being separated, maaser
rishon is intended. If it refers to something that has sanctity, usually
maaser sheini is intended. Since the rest of this article will be
discussing the specific and unusual sanctity of maaser sheini, I
will henceforth use the term maaser to mean only maaser sheini.

The parsha

At this point, let us examine the appropriate pesukim
in this week’s parsha: “And you shall eat the maaser of your
grain, your wine, and your olive oil… before Hashem your G-d, in the
place that He will choose to rest His Name — so that you will thereby learn to
be in awe of Hashem at all times. However, when you are blessed by Hashem,
your G-d, such that you are unable to carry [the maaser sheini] to a
place as distant as the one that Hashem chooses, then you may exchange
it for money that you bring with you on your visit to that place that Hashem
has chosen. Once you are there, you shall exchange the money for cattle, sheep,
wine or anything else you desire, which you shall eat there, before Hashem,
your G-d. In this way, you and your family will celebrate” (Devarim 14:23-26).

Obviously, the place that He will choose to rest His Name
refers to the city of Yerushalayim. Thus, we are told the following halachos:
Maaser should be brought with you when you travel to Yerushalayim.
However, if you have more produce than you can easily carry to Yerushalayim,
you may redeem the maaser produce, a process that removes the sanctity
and special laws from the maaser produce and places it on coins. The
Torah shebe’al peh teaches that this redemption can be performed only
onto minted coins. When the owner is redeeming his own maaser produce,
he must redeem it for coinage that is worth 25% more than its value. Then he
brings this money to Yerushalayim, where it is used to purchase food to be
eaten within the confines of the city. This acquisition transfers the maaser
sheini
sanctity from the money to the food, which means that this newly
acquired food can be eaten only within the walls of Yerushalayim and must be
eaten while tahor.

Vacation fund

Whether one transports one’s maaser sheini produce
itself to Yerushalayim, or purchases food with the money to which the sanctity
has been transferred, the farmer remains with a lot of maaser sheini
that may be consumed only in Yerushalayim, a city bursting with sanctity and
special, holy people. The beauty of this mitzvah is that it entices the
farmer to ascend to the Holy City and be part of the spiritual growth
attainable only there.

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

Sanctity and purity

As mentioned above, the original maaser sheini that
was separated and brought to Yerushalayim, and the food purchased in
Yerushalayim with the redemption money are holy and may be eaten only within
the walls of the old Yerushalayim and only when both the food and the
individual eating it are tahor, ritually pure.

In addition, there is another halacha pertaining to
Yerushalayim. Once maaser produce has been brought within the Holy
City’s walls, it may not be removed or redeemed.

O’ my Jerusalem!

By the way, the current “Old City” walls of Yerushalayim,
constructed by the Ottoman Turks almost 1500 years after the churban,
are not the borders that define the halachic sanctity of the city. The
Turkish walls encompass areas that were not part of the city at the times of Tanach
and Chazal, and therefore do not have the sanctity of Yerushalayim;
and, without question, parts endowed with the sanctity of the Holy City are
outside these walls. Thus, it will be necessary when Moshiach comes to
determine exactly where are the borders of the halachic “old city of
Yerushalayim.”

What food?

What food may one purchase with maaser sheini
money? There are many laws regarding what one may purchase. The Torah specifies
that, once in Yerushalayim, one may exchange maaser sheini money for
cattle, sheep, wine or anything else you desire
, which seems both wordy and
unusual. The Torah sheba’al peh explains this to mean that one may not
purchase any food with maaser sheini money, but only those that
grow either from the ground or meat and poultry, that grow “on the ground.”
Therefore, one may use maaser sheini money to purchase fruit,
vegetables, breads, pastry, meat or poultry; but not fish, which do not grow on
the ground; not salt or water, which do not grow; nor mushrooms, which are
fungi and are therefore not considered as growing from or on the ground.

The pasuk’s reference to purchasing cattle or sheep
teaches a new law. It is considered exemplary to purchase animals that will
then be offered in the Beis Hamikdash as korbanos shelamim. The
owner takes home most of the meat of these korbanos to eat with whomever
he chooses to invite. Of course, this must be eaten following all the laws of korbanos
shelamim
, which includes that everyone eating it must be tahor and
that the meat is eaten only within the walls of the city, as explained above.
Among many other laws, the meat may be eaten only until nightfall of the day
following the offering of the korban. Whatever is not eaten by that time
must be burned.

There is an interesting halacha germane to those who
purchase animals for korbanos shelamim with maaser funds. One may
use maaser funds to purchase an animal as a korban, even though
it is not completely eaten. Parts of the animal are burned on the mizbei’ach,
and the hide and bones are not consumed by anyone. Notwithstanding the strict
rules governing the consumption of maaser, the hide, which was purchased
as part of the animal with maaser funds, has no sanctity and belongs to
the owner!

Sanctity of maaser sheini

Although any tahor Jew is permitted to consume maaser,
there are many detailed rules governing how one must consume maaser.
For example, one may not cook foods that are usually eaten raw, nor may one eat
raw produce that is usually cooked. Therefore, one may not eat raw maaser
sheini potatoes, nor may one cook maaser sheini cucumbers
or oranges.

Similarly, juicing vegetables and most kinds of fruit is
considered “ruining” maaser sheini produce and it is therefore
prohibited, although one may press grapes, olives and lemons, since the juice
and oil of these fruits are considered more valuable than the fruit itself.

How do we determine whether processing a food “ruins” it or
not? Some poskim contend that one may not process maaser in such
a way that its brocha is changed (Shu”t Mishpat Cohen #85, based
on Brachos 38a and Rambam, Hilchos Shevi’is 5:3). Others contend
that it is permitted when this is the most common use of this fruit (Minchas
Shelomoh, Shvi’is
pg. 185). A practical difference in halacha between
these two positions is whether one is permitted to squeeze oranges and
grapefruits.

One must certainly be careful not to actively destroy maaser
sheini. Therefore, one may not destroy it when it could still be eaten.
Similarly, peels that are commonly eaten, such as those of cucumber or apple,
still have kedusha and may not simply be disposed of. One is required to
place them in a plastic bag and then place the bag in a small bin or box called
a pach maaser, where it remains until the food is inedible. When it
decomposes to this extent, one may dispose of it in the regular garbage.

Sanctity until spoilage

This leads us to a question: If indeed one may not throw maaser
sheini produce in the garbage because it has sanctity, why may one do so
after the produce decomposes? Does decomposition remove kedusha?

Indeed it does. Kedushas maaser sheini
means that as long as the food is still edible, one may not make it inedible or
use it atypically. This is because maaser sheini food is meant to
be eaten. However, once the maaser sheini is inedible, it loses
its special status and may be disposed of as trash.

This sounds very strange. Where do we find that something
holy loses its special status when it becomes inedible?

Although the concept that decay eliminates sanctity seems
unusual, this is only because we are unfamiliar with most of the mitzvos where
this principle applies. Other mitzvos where this concept exists are
shevi’is, terumah, challah
, bikkurim, and reva’ie (Rambam,
Hilchos Terumos
Chapter 11; Hilchos Maaser Sheini 3:11; Hilchos
Shevi’is
5:3). Of these types of produce that are holy, but meant to
be eaten, only shevi’is may be eaten by someone tamei. Even
though someone tamei may not consume tahor terumah, challah, or
maaser sheini,
one also may not dispose of them or even burn them. Instead,
one must place them in a secure place until they decay and only then dispose of
them (Tur, Yoreh Deah 331).  We burn the special challah
portion after separating it, only because it has become tamei. If it did
not become tamei, one may not destroy the challah portion, but
must place it somewhere until it decays on its own.

Contemporary maaser sheini

The fact that one must be tahor to consume maaser
sheini
changes the way one observes this mitzvah today, since we cannot
become tahor. Without the ashes of a parah adumah with which to
purify ourselves of certain types of tumah, we cannot eat maaser
produce, nor the food purchased with the redeeming coins. Because we cannot eat
maaser food, it is pointless to purchase food with these coins; instead,
maaser coins remain unused and are eventually destroyed. To avoid
excessive loss, one is permitted to redeem large quantities of maaser sheini
onto a very small value within a coin, and this is the way we redeem maaser
sheini
today. Of course, we are missing the main spiritual gain of
consuming the foods in Yerushalayim, but this is one of the many reasons for
which we mourn the destruction of the Beis Hamikdash and pray many times
daily for its restoration.

There is another law that is different because of our
unfortunate circumstances. Since the maaser will not be consumed, it is
permitted to redeem tamei maaser produce onto coins, even within
the boundaries of the Holy City. Otherwise, one is permitted to redeem maaser
produce only in a place where it cannot be eaten.

In conclusion, when we buy produce that grew in Israel,
either we should check that there is a good hechsher that attended to
all the maaser needs or we should make sure to separate all the terumos
and maasros ourselves and redeem the maaser sheini.

Neta reva’ie

I mentioned above that all the laws that apply to maaser sheini also apply to reva’ie. Reva’ie is the fruit that grows in the fourth year of a tree’s life. In a different article, I have explained how we calculate the years of a tree’s life. There is also an article titled Could the Fruit of My Tree Be Orlah? where I discussed whether and when the laws of reva’ie apply to trees planted in chutz la’aretz or only to those in Eretz Yisroel.

Conclusion

A prominent talmid of Rav Moshe Feinstein once
related to me the following story. A female calf was born that was completely
red. Of course, conversations were abuzz: Could this possibly be a hint that Moshiach
will be coming soon, and that we would soon have a parah adumah to use
in removing our tumah?

Some of the talmidim in Rav Moshe’s yeshivah
approached him with this information, expecting to see his reaction to the
great news. Much to their astonishment, Rav Moshe did not react at all.
Surprised, one of them asked Rav Moshe: “Does not the Rosh Yeshivah
think that this might be a sign that Moshiach will be coming soon?” To
this, Rav Moshe answered: “A parah adumah is not kosher until it is
three years old. I daven that Moshiach should come today,
not in three years.”

We should all have Rav Moshe’s desire for Moshiach to
be here, today, and, to demonstrate this desire, be as knowledgeable as
we can in all the halachos that will then be germane. May we soon see
the day when we can bring our maaser sheini and our reva’ie and
eat them betaharah within the rebuilt walls of Yerushalayim!




It’s for the Birds

The Mitzvah of Shiluach Hakein

Photo by MojtabaT from FreeImages

Question #1: Required???

“Must I physically send away the mother bird? I am
squeamish!”

Question #2: Keep the Babies

“Must I take the young to fulfill the mitzvah?”

Question #3: Educated!

“I am so excited about the opportunity to fulfill this
special mitzvah, with all its rewards, but I want to make sure I do it
properly. Can you please enlighten me?”

Well known and poorly understood

This week’s parsha includes the laws of a mitzvah,
or more accurately, two mitzvos that are both well-known and yet poorly
understood. The Torah teaches that when we happen to find a nest of birds, we
are to send away the mother and keep the young; that is, either the baby birds
or the eggs. An entire chapter of Mishnah and Gemara, the twelfth
and last perek of Chullin, is devoted to understanding this mitzvah,
which actually involves two mitzvos, a lo saaseh, a prohibition
against taking the mother, and a mitzvas aseih, a positive mitzvah
to send away the mother. At the same time, the Torah itself teaches of a very
specific reward gained by someone who observes this mitzvah. We will
therefore begin the study of this fascinating mitzvah in this article.

Let us rephrase briefly the first two of our opening
questions:

1. Should I find such a nest, may I simply ignore it and
continue on my way, or is doing so ignoring a requirement to fulfill a mitzvah?

2. “Must I take the young to fulfill the mitzvah?”
When I send away the mother bird, am I required to keep the young, or, at
least, to physically lift up the eggs or baby birds, thereby taking possession
of them? Or have I completed the performance of the mitzvah simply by
sending away the mother?

Introduction

At this point, we should read the words of the Torah very
carefully, because answering some of our questions will depend on properly
understanding these words.

Ki yikarei kan tzipor lefanecha baderech, bechol eitz oh
al ha’aretz, efrochim oh beitzim, veha’eim rovetzes al ha’efrochim oh al
habeitzim, lo sikach ha’eim al habanim. Shalei’ach teshalach es ha’eim, ve’es
habanim tikach loch, lemaan yitav loch veha’archata yamim
.“If a
bird’s nest, containing either chicks or eggs, happens to be before you on the
road, whether it (the nest) is in a tree or on the ground, and the mother is
nesting upon the chicks or upon the eggs, you shall not take the mother
from/with the offspring. (I will explain shortly why I left the translation
this way.) You shall certainly send away the mother and take the young for
yourself, so that it will be good for you, and you shall lengthen your days” (Devorim
22:6-7).

Off the derech

Several points in these pesukim are uncertain. The
Torah states that the nest must be on the derech, which means on the way
or road. Why does the Torah need to tell you that it was on the road? Does this
mitzvah not apply if the mother bird is off the derech?

The Gemara first suggests that the Torah is teaching
that there is no mitzvah of shiluach hakein if the bird built her
nest on the water. However, the Gemara demonstrates that this halacha
is inaccurate — a waterway is also called a derech, and, should one
find a nest on a waterway, the mitzvah of shiluach hakein
applies.

So, what case is exempt, because mommy bird is “off the
derech”? The Gemara concludes that there is no mitzvah
of shiluach hakein should the nest be on your property, since this is
not called “on the way,” which implies an ownerless area (Chullin 139b).
The Mishnah states that geese or chickens that set up their nests in an
orchard are included in the mitzvah of shiluach hakein, whereas
there is no requirement to send away the mother goose or hen if she set up her
nest in the house. The Mishnah’s term “chickens that set up their nests
in an orchard” means that they have run away from the owner’s jurisdiction.
However, if the chickens or geese are “rebellious,” occasionally wandering
beyond the confines of their usual home, but still returning to the owner’s
barn for nesting, they are still considered “owned.” Similarly, the laws of shiluach
hakein
apply to an ownerless bird that nests on your property (Shulchan
Aruch
, Yoreh Deah 292:2).

Late poskim explain that you are exempt from
performing the mitzvah on birds that could easily become yours, even if
at the moment they are not your property. Without delving into the halachic
analysis entailed, they conclude that the mitzvah of shiluach hakein
does not apply to chickens and similar domesticated species, unless this particular
bird refuses to be domesticated (Shu”t Imrei Yosher #158; Minchas
Shelomoh
2:97:26).

On the other hand, the mitzvah does apply, in
general, to doves and pigeons, which, even when kept in dovecotes, are not as
domesticated as chickens. However, one is exempt from performing the mitzvah
of shiluach hakein in the case of homing pigeons, which accept human
domination. This means that someone can remove chickens or homing pigeons
roosting on a nest and bring them to the shocheit.

Mommy or daddy

There are species of birds in which the father roosts on the
nest, or the two parents take turns. In this instance, does the mitzvah
apply, regardless as to which parent is on the nest, or is the mitzvah
gender-specific, applying only if the mother bird is on the nest? This question
is debated in the Mishnah and discussed in the Gemara. Normative halacha
rules that the mitzvah applies only if mother bird is on the nest. This
conclusion is implied by the posuk when it says veha’eim rovetzes,
“and the mother is nesting.”

Therefore, in order to fulfill the mitzvah of shiluach
hakein
, one must first determine that the nesting bird is, indeed, the
mother. One does not require a DNA test to verify these facts – usually a bit
of observation will show you whether one bird or two are nesting.

This question is germane to pigeons, who present the most
common contemporary application of shiluach hakein, since
non-domesticated ones often create their nests near or in human habitation.
Pigeons, which are loyal to their mates for life, take turns roosting on the
nest. Usually, the daddy bird takes day shift and mommy does the night shift.
(During their time off, each parent goes out to earn a living. Not many
social-life options in a full nest.)

There are several halachic ramifications to this
social knowledge of pigeon family structure, of which I will share two. Should
someone be interested in harvesting both a pigeon parent and its eggs or young,
he can determine which parent is male, and then, at the appropriate time, seize
daddy bird and the young at the same time without violating any prohibition of
the Torah.

A second ramification applies to someone eager to fulfill
the mitzvah of shiluach hakein. Before sending away the nesting
bird, one should determine whether, at the moment, mommy or daddy is roosting
there. If it is daddy, no mitzvah is fulfilled by sending him away, even
if you are a father’s rights activist.

From or with?

Allow me to return to the laws that we derive from
understanding the posuk. The Torah writes, lo sikach ha’eim al
habanim
, which can be translated and explained in more than one way. It
could mean that you should not take the mommy from the young, which
would mean that the prohibition is taking the mother, even should you leave the
offspring, which is the way Rashi explains the verse (as explained by Maharal;
note that Mizrachi seems to have understood Rashi differently).
On the other hand, the Rambam (Sefer Hamitzvos, Lo Saaseh #306)
translates the phrase ha’eim al habanim as with the young,
meaning that one violates the lo saaseh prohibition only if one takes
both mother and offspring. Should someone take the mother and not the
offspring, in the Rambam’s opinion, he violated the mitzvas aseih
commanding him to send away the mother, but not the lo saaseh. According
to Rashi, this person also violated the lo saaseh. Thus, we see
that a halachic difference can hinge on how you translate the
preposition al.

Earlier in this article, I translated this passage as “You
shall not take the mother from/with the young.” This was in order to avoid
biasing someone from translating the posuk in a way that supports either
side of the dispute between rishonim.

Required???

Our opening question was: “Must I physically send away the
mother bird? I am squeamish!” Or, as I explained it: Should I find such a nest,
may I simply ignore it and continue on my way, or would I thereby be ignoring a
requirement to fulfill a mitzvah?

To explain this a bit better: The Torah includes mitzvos
that I am required to observe, such asputting on tefillin and
eating matzoh on Pesach. Shiluach hakein is certainly not
such a mitzvah, since it depends upon circumstance and applies only when
I find a nest. However, among mitzvos of the Torah that are
non-obligatory, there are different levels of requirement. Some mitzvos
are simply a matir, they permit me to do something, but I have no
obligation to do them, whereas others become obligatory when certain
circumstances apply.

Some examples will make our explanation clearer. Here is an
example of a mitzvah that is not required: shechitah. I am not
required to walk down the street looking for animals to shecht. Even if
I am a shocheit and someone asks me to shecht for them, it is not
a requirement. The mitzvah is simply: If you want to eat meat, the
animal must be shechted in a specific way. If one does not shecht
it correctly, one may not eat the meat.

This type of mitzvah is a matir. There is no
requirement to observe the mitzvah, but if I want to gain a certain
benefit, the Torah provides me with specific instruction how to permit it.

If we understand shiluach hakein to be a matir,
then what the Torah instructed is that if I find a nesting bird, I may not take
both the young and their mother for my purposes. If I want to take the young, I
must first send away the mother. (By the way, it is forbidden to take the
mother, even if I do not want to take the young.)

Required

There is another way to understand shiluach hakein,
which holds that this mitzvah is not a matir, but a requirement,
should I encounter the appropriate situation. I will explain the second
approach by comparison to a different mitzvah.

One of the Torah’s mitzvos is to return lost objects.
There is no requirement for me to try to find lost objects in order to return
them to their owner. However, once I see a lost object, I am required to
retrieve the item and return it. If one understands that the mitzvah of shiluach
hakein
is comparable to hashavas aveidah, then, although I am not
required to go looking for nesting birds, should I find one, I am required to
send away the mother.

Based on Talmudic sources, early acharonim discuss
whether shiluach hakein should be considered a matir or a
requirement. If it is a matir, then our squeamish questioner is not
required to fulfill the mitzvah. However, if it is a requirement, then
it is a mitzvah that must be fulfilled. Halachically, it will be
approximately equivalent to living in a house and not putting mezuzos on
the doors.

Shalei’ach

The question is how one explains the words of the posuk,
which says Shalei’ach teshalach es ha’eim, “You shall certainly send
away the mother.” Here are two ways:

There is no requirement to send away the mother, but should
I happen upon a nest and want to eat the mother bird, the young, or both, I may
not take the mother, but must send her away. The act of sending away the mother
permits me to keep the young, should I want to take them. According to this
approach, the mitzvah of shiluach hakein is similar to shechitah.
There is no requirement to shecht, but should I want to eat meat, this
is the way to do so.

On the other hand, perhaps the mitzvah of shiluach
hakein
is similar to the mitzvah of hashavas aveidah. This
would mean that should I find a nest, I am now required to send away the
mother.

Among the early acharonim, we find a responsum from
the Chavos Ya’ir (#67) discussing this issue. To quote the Chavos
Yair
: “I was asked: if someone comes across a nest while he is walking
through a field, is he required to send away the mother, or may he just
continue on his way without doing anything?”

The Chavos Yair analyzes several passages of the Gemara
in his attempt to prove which approach is correct. Based on his analysis of
several texts of Chazal, he concludes that shiluach hakein is
like hashavas aveidah, and, should one find a nest that meets the halachic
requirements, there is an obligation to send away the mother, even though one
has no interest in the young. This position is also accepted by several other
prominent, later poskim (Shu”t Chacham Zvi #83; Rabbi Akiva
Eiger
to Yoreh Deah 292:1; Aruch Hashulchan, Yoreh De’ah
292:1-2).

On the other hand, there are several prominent poskim who
dispute this ruling, concluding that shiluach hakein is a matir, like
shechitah (Sefer Hamitzvos Hakatzar [of the Chofetz Chayim]
Mitzvos Aseh
#74; Chazon Ish (Yoreh De’ah 175:2); Shu”t
Avnei  Neizer, Orach Chayim
#48; Minchas Shelomoh 2:5:4 [5760
edition].

Keep the babies

Our second question that I quoted above was: “Must I take
the young to fulfill the mitzvah?” I explained that the question is:
When I send away the mother bird, am I required to keep the young, or, at
least, to physically lift up the eggs or baby birds, thereby taking possession
of them? Or have I completed the performance of the mitzvah simply by
sending away the mother?

This is another halachic question that is dependent
on the translation of a word of the posuk: The Torah says “You shall
certainly send away the mother and take the young for yourself.” Does the Torah
mean that you may take the young for yourself or that you are
required to take the young
? According to the second approach, the mitzvah
is fulfilled only if one picks up the eggs or baby birds. If one does not pick
them up, one has not fulfilled the mitzvah. According to the first
approach, the mitzvah is fulfilled by sending away the mother. Once one
has sent her away and fulfilled the mitzvah, one may pick up the eggs, should
one want them, or leave them as is.

Again, the correct interpretation depends on a proper
understanding of the posuk.

The Torah states, ve’es habanim tikach loch, “And
take the young for yourself.” Is this part of the requirement of the mitzvah?
In other words, did the Torah command that we perform two steps, send away the
mother and take the young? Or, more simply, the Torah instructed that once you
sent away the mother, you are permitted to keep the young for yourself.

This question is discussed by a prominent, early acharon,
the Chacham Tzvi (Shu”t Chacham Tzvi #83). To quote him: “That
which you asked me: One who sends away both the mother and the offspring, did
he fulfill the mitzvah of shiluach hakein? Do we say that the
words of the Torah, send away the mother and keep the young, must be
fulfilled literally to fulfill the mitzvah, or not? You wrote me that
the great scholars of Lublin were uncertain about this.”

The Chacham Tzvi rallies source material from the Gemara
that the mitzvah is to send away the mother, and one fulfills the mitzvah,
even if one does not take the young. Therefore, taking the young is not a
requirement for the fulfillment of the mitzvah, but presents an option
for the individual performing the mitzvah.  He compares this to the
words of the Torah, “Six days shall you work, and do all your melacha.”
Clearly, the Torah is not requiring one to work, but limiting one’s work time
to six days of the seven-day week. Similarly, shiluach hakein should be
understood that should you want to take the young, you may do so only after
sending away the mother, but there is no requirement to take the young. Put in
other terms, sending away the mother is a matir that permits taking the
young, similar to shechitah being the matir permitting one to
consume the meat. Just as shechitah does not require that someone eat
the meat, so too, it is not required to take the young, and one fulfills the mitzvah
without taking them.

Other acharonim disagree, demonstrating from the Zohar
that one is supposed to take the offspring (Beis Lechem Yehudah).
The Aruch Hashulchan (Yoreh Deah 292:3-4) concludes, like the Chacham
Tzvi
, that there is no requirement to take the offspring. Nevertheless,
since the posuk implies that one should, and there is evidence of this
approach from some rishonim, the Aruch Hashulchan concludes that
the proper approach is to make a kinyan on the young, such as by lifting
them up. Furthermore, he notes that, according to the reason for the mitzvah
of shiluach hakein proposed by many early authorities, which I hope to
discuss in a future article, one should take the young.

Conclusion

The mitzvah we have just studied teaches that although we
may eat kosher birds, we are prohibited to take a mother bird when she is in
her nest tending to her young. In explanation of the reason for this mitzvah,
Rav Hirsch sees a lesson to be learned regarding the sacred role of motherhood.
To quote him: “The respect that a nation accords to the woman’s calling is a
reliable barometer of that nation’s moral level… the paramount importance the
Torah attaches to the woman’s activities… traces even into the sphere of animal
life. It assures protection for a mother bird while she is engaged in her
activity as a mother and it demands that everyone… should demonstrate through
his actions this appreciation of the female as she carries out her task.”




Tefillin Retzuos, Maintenance, and Purchasing Instructions

Question #1: How are tefillin
retzuos made
?

Question #2: My tefillin
did not come with an “owner’s manual.” What should I do to maintain them in
good condition?

Question #3: How can I make
sure I get “quality” tefillin?

Introduction:

This week’s parsha has a
very indirect allusion to the mitzvah of tefillin, since it refers to
the mitzvah of zakein mamrei, the rebellious elder. The details of zakein
mamrei
are rather extensive and will not be discussed in this article.
However, the example chosen for establishing a person as a zakein mamrei
is someone who declares that tefillin are supposed to contain five parshios
rather than four (Rambam, Hilchos Mamrim 4:3).

As I sent out two articles on the topic of tefillin
manufacture only weeks ago, this article will be our “wrap-up” of the topic,
and will discuss the halachos of tefillin straps, what one should
ask when purchasing them and how to maintain your tefillin in perfect “operating”
order.

For the sake of tefillin!

Tefillin must be manufactured lishmah
– for the sake of the mitzvah. In practical terms, this means that an observant
Jew begins each process and declares that the production is for the sake of the
mitzvah of tefillin (Shulchan Aruch, Orach Chayim 32:8).

The contemporary process of tanning hide for
parchment, batim and straps is a multi-stage process, similar to the
method used to tan leather for mundane uses, such as belts, shoes and handbags.
However, as I mentioned above, the parchment, batim and straps for tefillin
must be tanned lishmah, for the sake of the mitzvah (Shulchan Aruch,
Orach Chayim
32:37 and 33:3). For this reason, it is preferable that each
step be performed, or at least begun, by an observant Jew, lishmah.
Therefore, one of the questions to be ascertained when purchasing tefillin
is to what extent an observant Jew was involved in the processing of the hide.
This issue impacts on the question of machine-made vs. handmade retzuos.

Is there a halachic preference for
handmade retzuos?

In earlier days, tanning retzuos and other
leather items involved salting the hide and then soaking it in lime wash.
Today, although both salt and lime are still used in the tanning process, most
of the tanning of retzuos is usually accomplished by the gradual,
automated adding of other chemicals to the soaking leather after the salt and
lime have been rinsed out. Thus, although many early poskim ruled that
placing the hide into the water lishmah (after the salt and lime have
been added) is sufficient to make retzuos lishmah, this may not
be true today. The hide must be processed in a way that it meets the
requirements of lishmah, which, in today’s world, probably requires that
the other chemicals were added to the water lishmah by a Torah-observant
person (Zichron Eliyahu).

Most Torah-observant Jews use hand
matzos for the seder, because of concern that machine matzos are not
considered lishmah. (I am not ruling that machine matzos are a
problem for seder use. The majority of poskim contend that they
are fine.) In all likelihood, the manufacture and painting of machine-made retzuos
has greater halachic concerns than the shaylos involved in
machine matzos, for several reasons, including the fact that the processing of retzuos
is not one continuous process, as I explained above. In addition, there are and
were halachic authorities who preferred the use of machine matzos
because they are baked much faster, and therefore might reduce the chance of
chometz
. This is not a factor in the manufacture of tefillin retzuos.
It is clearly advantageous to use handmade retzuos, and, to the best of
my knowledge, no disadvantage. When one realizes that the mitzvah of eating matzoh
is only once a year, yet most people use only hand matzos rather than
machine-made, whereas the tefillin will iy”h be worn daily for
decades, I believe the choice is obvious.

An additional question is whether lishmah
can be created by pushing the buttons that start the electric process. Although
most, but not all, halachic authorities accept that this is considered
lishmah,
it is easier to comprehend that this works for matzoh than
for retzuos.  The lishmah for matzoh is to make sure
it does not become chometz and therefore an observant Jew supervising the
process to make sure everything is kosher lepesach who starts the
machine’s operation lishmah is sufficient.However, germane to retzuos
and the like, the goal of tanning the leather lishmah is to create kedusha
on the leather so that it can be used for a sacred purpose. It might follow
that pushing buttons cannot be considered an act that creates kedusha.

Painting

After the tanning of the retzuos is
completed, they are painted jet-black lishmah (Mishnah Berurah
33:18).

Must the side of the retzua be black?

The underside of the retzua, the part that
lies on the skin, need not be dyed at all. There is an opinion that the edges
of the retzuos must also be painted black (Keses Hasofer 23:2).
However, this opinion is not accepted in halachic practice (see, for
example, Mishnah Berurah 33:24, quoting Pri Megadim, Eishel Avraham 33:7).

Thoroughly black

Some manufacturers of tefillin retzuos
soak the entire leather in a kosher black solution, so that the entire
thickness of the strap is now black. Although I see no halachic
requirement in this additional process, there is a practical advantage that is
up to the consumer to decide. As the retzuos age, they develop cracks.
If the retzua was originally soaked in black solution, when the leather
cracks, the retzua may still be black and not require painting. However,
if the retzua is not soaked, the now-showing cracked area is light
colored and requires painting. I have found it annoying to constantly check to
see whether my retzuos are still black, and therefore, when I purchase retzuos,
I ask for those that have been soaked black to avoid this issue. (Although from
my own observation, how black the inner part of the retzua gets when
this is done varies tremendously from batch to batch, I still usually find it
worthwhile.) From a consumer perspective, I think the additional cost is
worthwhile, because it is probable that these retzuos can be used for a
longer period of time before they become so difficult to paint constantly that
one replaces them. Again, I note that this is not a halachic consideration.

How wide are my retzuos?

The retzuos should be about half an inch
wide. When purchasing new retzuos, they should be wider, so that they
remain the proper width, even after they become stretched out.

How to maintain your tefillin

What should I do to maintain my tefillin
in good, kosher condition?

Maintaining the batim and parshios
of your tefillin is fairly easy. Never leave your tefillin in
direct sunlight, in a very hot place, or inside your car during the daytime. As
much as possible, your hair should be dry while wearing your tefillin.
When going to mikvah before weekday davening, make sure to dry
your hair well before putting on your tefillin.

Protect the corners of the batim by leaving
the cover on the shel yad. (It should be noted that some poskim contend
that one should not place these covers on the shel yad while one is
wearing them, or while making the brocha. However, since most poskim
permit leaving these covers on, one may be lenient.)

Checking retzuos

It is important to check periodically that the retzuos
on one’s tefillin are still completely black and are not cracked or
faded. Although a good quality pair of tefillin should last a lifetime,
the straps on the tefillin do wear out and periodically need to be
replaced.

The Mishnah Berurah, whom many people
consider the finalauthority in these areas of halacha, implies
that the entire length of the retzua must always be black (Biur
Halacha
33:3 s.v. haretzuos). (There are authorities who disagree,
most notably Rav Yosef Chayim Sonnenfeld, who contends that it is adequate for
most of the retzua to be black.) Check that the retzuos are black
all the way to their tip. Be particular to check that they are black near where
the retzua is tightened daily, because at that point the paint often
rubs off. One should also check that the retzua is still wide enough
where it is tightened near the knot and that the yud of the shel yad
is touching the ketzitzah of the tefillin. If it is not, this can
be corrected by a knowledgeable sofer or a batim macher (a
trained tefillin manufacturer).

If the retzuos are no longer fully black,
blacken them with kosher tefillin paint. Everyone who wears tefillin
should have access to kosher tefillin paint or kosher tefillin
markers.

Depending on where you live, this might be an easy
item to purchase; it usually comes either as a pen-looking marker or in a small
container reminiscent of correction fluid.

Before painting the retzuos, one must state
that he is doing it lesheim kedushas tefillin. I once wrote a halachic
teshuvah (in Hebrew) in which I concluded that someone who painted the
faded parts of their retzuos, but forgot to say that they were doing it lishmah,
has not invalidated the tefillin, and they may be worn as they are.
Still, one should lechatchilah (the preferred way) be careful to say
that one is blackening them lesheim kedushas tefillin.

If someone’s retzuos are cracking in
several places, he should consider replacing them.

While checking the retzuos, check that the batim,
titura, and stitches are all perfectly square. This means that, to the
naked eye, the width and the length appear to be the same, and that there are
no dents, nicks, or projections along the sides or in the corners of the bayis.
The back corners of the batim often become rounded because of hats or taleisim
that are constantly rubbing against them.  By the way, the edges of the ma’avarta
(the part of the tefillin bayis  through which the straps (retzuos)
are inserted) do not need to be square.

If the stitch of the titura is not taut or
it loops in the middle, it is not kosher, and you should contact your batim expert.
With time or damage, the stitches often loosen or move, or the batim get
banged or nicked and are no longer properly square. Your local batim expert
has the equipment and know-how to repair them.

Know a batim macher or batim repair
expert. Every major Jewish community should have at least one person who is
trained and has the equipment to repair batim. Just as the community has
shatnez testers, a mohel, a butcher, a mikvah for dishes, sefarim
stores, and talmidei chachamim who are trained to check mezuzos,
a community must have a talmid chacham who is trained properly in the
repair of batim.

Where should I buy my tefillin?

The individual selling tefillin and tefillin
accessories (such as replacement retzuos) should be a halachically
reliable person, and preferably a talmid chacham. Furthermore, he should
be fully familiar not only with the halachos of tefillin but also
with the details of tefillin manufacture. From my personal experience,
it is not uncommon for a person selling tefillin to be extremely ehrlich
but totally unfamiliar with the halachic issues and concerns involved.
Unfortunately, many sofrim and rabbanim lack sufficient training
in the practical details of tefillin manufacture.

Where not to buy your tefillin!

I’ll share with you one frightening story of my
personal experience. I was once “tipped off” by someone about a
manufacturer of tefillin batim who was personally not observant.
Shortly thereafter, I realized that an errand would require me to be in the
same city in which this manufacturer was located. I presented myself to the
owner, who was clearly not observant, as a rabbi from America looking for a
supplier of tefillin for his congregation, but who would like to
familiarize himself with the process of how tefillin are made. One would
think that the manufacturer might be interested in the possibility of making
some sales, but, indeed, he would not even let me past his front door! When one
realizes the myriad details involved in tefillin manufacture that
require yiras shamayim, one grasps how unlikely it is that these tefillin
were kosher. We will never know how many pairs of tefillin this manufacturer
produces annually, but clearly, lots of people are, unfortunately, purchasing
these tefillin.

The price of tefillin

Considering how much time, labor
and trained skill are required to produce a kosher pair of tefillin, it
amazes me how inexpensive tefillin are. Imagine purchasing an item that
requires tens of hours of skilled, expert workmanship! What would you expect to
pay for such an item? Probably thousands of dollars! And note that one wears tefillin
every weekday of one’s life, without exception. The tefillin are
certainly hundreds of times more valuable than a top-quality suit! Remember
that a top-quality pair of tefillin should last many decades. A pair of tefillin
that costs $1,500 and lasts for sixty years is worn approximately 300 times a
year, or a total of 18,000 times. Thus, this pair of tefillin cost about
8½ cents a day. Compare this to the cost per wearing of a nice suit!

Ask for what you want

Assuming that one is purchasing tefillin
from someone familiar with the halachos and practical aspects of tefillin
manufacture, be specific as to the level of tefillin kashrus you
are seeking. If you don’t tell him that you want tefillin that are
kosher lechatchilah, you might receive tefillin that meet only
the very minimum standards of kashrus. A person who discriminately buys
food with high kashrus standards should not settle for less when
purchasing tefillin. Such a person should order “kosher mehudar
tefillin
,” or “kosher tefillin with extra hiddurim.” These
descriptions may also affect other questions that we have not discussed in this
series of articles, such as the quality of the writing of the parshios
or the source of the batim.

What to ask when ordering tefillin?

When ordering a pair of tefillin,
one is entitled to ask as many questions about the tefillin as one
chooses. After all, one is making a major purchase. In addition, asking these
questions informs the seller that one wants tefillin that are
mehadrin
and are not simply minimally kosher.

Thus, it is perfectly acceptable
to ask whether the seller knows the sofer personally, or at least by
reputation. Why did he choose this sofer? Is the sofer licensed
by an organization that tests him periodically on the relevant halachos?
One should definitely request that the sofer be instructed to write parshios
that are kosher lemehadrin, and not simply kosher or even kosher lechatchilah.

Request that the parshios
be checked by two different examiners and also by computer. Also insist that
the examiner be instructed that the parshios should be kosher lemehadrin.
Usually, the examiners are only checking to see if the parshios are
minimally kosher.

From which manufacturer are the batim
being ordered? Why did the seller choose this batim macher? Do the
batim
carry a hechsher? Order batim that are kosher lemehadrin.
Clarify that the batim macher cuts between the compartments of the shel
rosh
after painting to guarantee that they are properly separated.

Of course, one needs to verify
that the tefillin are set up for someone left-handed or right-handed,
and whether the ksav (the script) and the knots are for nusach
Ashkenaz, Sfard
(Chassidish) or Edot Hamizrah. Clarify, in
advance, how large the batim of the tefillin will be. If the
bar-mitzvah bochur is small, one may have a shaylah whether the tefillin
are too large to fit correctly on his arm. Clarify this issue in advance with
your tefillin seller and with your rav.

None of the items above should
cost anything additional, and therefore one should always ask for them, even if
one’s budget is limited. These questions also make your seller aware that you
are looking for tefillin that are kosher lemehadrin, just as you
shop for food that is kosher lemehadrin.

What extra items should I ask
for when ordering tefillin?

There are several other hiddurim
one can order when purchasing new tefillin. Bear in mind that each of
these items will add to the price of your tefillin and may require that
you order the tefillin more in advance.

1. Ask your rav whether you
should order tefillin that were manufactured originally perudos ad
hatefer legamrei
, literally, separated completely down to the stitch,
referring to the stitching on the top of the titura. This means that the
batim were manufactured without any glue between the compartments of the
batim.

Although all poskim agree
that it is halachically preferable to have batim that are
constructed without any glue between the compartments, there is a risk that
these batim could separate, with time, and thus, no longer be properly
square. For this reason, if the person wearing the tefillin will not be
checking periodically to ensure that his tefillin are still properly
square, it may be preferable to have the compartments glued together. This is
one of the many reasons why your rav or posek should be
consulted.

If you are ordering tefillin
that are perudos ad hatefer legamrei, ask for batim that were
made originally this way, from the beginning of their manufacture. Sometimes a batim
macher
receiving an order for “perudos ad hatefer legamrei” will
take a knife and attempt to cut through the glue that is holding the
compartments of the bayis together, in order to separate them. If
you are purchasing perudos ad hatefer legamrei, then you should ask not
to have these batim. Firstly, the cutting could damage the batim.
Secondly, if you are paying for tefillin that are mehudar, why
settle for second best? Furthermore, the batim macher may have made his batim
assuming that they will hold together with glue, and without glue in the
middle, they will quickly separate and become posul.

2. Order batim, parshios,
gidin,
and retzuos that are avodas yad. Discuss with the sofer
whether the parshios should be written on extra-thin parchment.

3. Order tefillin where the
shin was pulled out by hand, and the mold was used only to enhance an
existing shin.

What should I check when the tefillin
arrive?

The big day arrives. Your local seforim
store, sofer, or rav tells you that your tefillin have
arrived!  Is there anything you should check on the tefillin?

Check if the batim, titura
and stitching are all properly square. You do not need to have a trained eye to
check. Look if they appear perfectly square to you. Pay special attention that
the titura area that faces the ma’avarta is smooth. It is not
unusual that this area is not finished to the extent that it should be.

What should I be checking on my
own tefillin?

Just as a car owner knows that he
must check the level of the motor oil periodically, the tefillin owner
should know to periodically check certain things on his tefillin.

Check that the retzuos and batim
are completely black and are not rubbed out, cracked or faded. Are the retzuos
black all the way to their tip? Be particular to check that they are black near
where the retzua is tightened daily, because at that point the paint
often rubs off. One should also check that the retzua is still wide
enough near the knot. If they are not fully black, blacken them with kosher tefillin
paint.

The yud of the shel yad
should be connected in such a way that it touches the ketzitzah of the tefillin.

Tefillin are one of the special signs that
Hashem gave the Jewish people, and we should certainly excel in treating this
mitzvah with the appropriate dignity. When Yidden request that their tefillin
be mehadrin, they demonstrate their reverence for the sign that bonds us
to Hashem.