The Crisis of Unwashed Meat

All the water in Egypt turned to blood. We also use water as part of the process in removing blood from meat, and, therefore, this week we will discuss:

Photo by Ove Tøpfer from FreeImages

Devorah calls me: “During our summer vacation, I entered a butcher shop that has reliable supervision and noticed a sign on the wall, ‘We sell washed and unwashed meat.’ This seemed very strange: Would anyone eat unwashed meat? Besides, isn’t all meat washed as part of the koshering process? What did the sign mean?”

Michael asked me: “Someone asked me if I have any problem with the kashrus of frozen meat. What can possibly be wrong with frozen meat?”

Answer: We should be aware that, although today we usually have a steady supply of kosher meat with all possible hiddurim, sometimes circumstances are more difficult. This is where “washed meat” and “frozen meat” may enter the picture, both terms referring to specific cases whose kashrus is subject to halachic dispute.

Knowing that Devorah enjoys stories, I told her an anecdote that illustrates what can happen when kosher choices are slim.

I was once rabbi in a community that has memorable winters. Our city was often covered with snow by Sukkos and, in some years, it was still snowing in May. There were several times that we could not use the sukkah without clearing snow off the schach, something my Yerushalmi neighbors find hard to comprehend.

One short erev Shabbos, the weather was unusually inclement, even for our region of the country; the major interstate highway and all secondary “state routes” were closed because of a blizzard. The locals called this weather “whiteout” — referring not to a fluid for correcting errors, but to the zero visibility created by the combination of wind and snow.

Fortunately, I lived around the corner from shul and was able to navigate my way back and forth by foot. Our house, too, was – baruch Hashem – sufficiently stocked to get through Shabbos.

About a half-hour before Shabbos, in the midst of our last minute preparations, the telephone rang:

“Is this Rabbi Kaganoff?” inquired an unfamiliar female voice. I responded affirmatively, though somewhat apprehensive. People do not call with shaylos late Friday afternoon, unless it is an emergency. What new crisis would this call introduce? Perhaps I was lucky and this was simply a damsel in distress inquiring about the kashrus of her cholent, or one who had just learned that her crock pot may fail to meet proper Shabbos standards. Hoping that the emergency was no more severe, I listened attentively.

“Rabbi Kaganoff, I was given your phone number in case of emergency.” I felt the first knots in my stomach. What emergency was this when I hoped to momentarily head out to greet the Shabbos queen? Was someone, G-d forbid, caught in the storm? I was certainly unprepared for the continuing conversation.

“I am a dispatcher for the All-American Transport Company,” she continued. “We have a load of kosher meat held up by the storm that needs to be washed by 11 p.m. Saturday.” My caller, located somewhere in the Nebraska Corn Belt, was clearly more familiar with halachos of kosher meat than she was with the ramifications of calling a frum household minutes before candle lighting. Although I was very curious how All-American had located me, a potential Lone Washer in the Wilderness, the hour of the week required expedition, not curiosity. Realizing that, under stress, one’s tone of voice can create a kiddush Hashem or, G-d forbid, the opposite, I politely asked if she could call me back in about 25 hours, which would still be several hours before the meat’s deadline. I guess that she assumed that it would take me that long to dig my car out.

Later, I determined the meat’s ultimate destination, a place we will call Faroutof Town, information that ultimately proved highly important.

Why was a Nebraska truck dispatcher calling to arrange the washing of kosher meat? Before returning to our meat stalled at the side of the highway, I need to provide some halachic background.

EXORCISING THE BLOOD

In several places, the Torah commands that we may not eat blood, but only meat. Of course, blood is the efficient transporter of nutrients to the muscles and permeates the animal’s flesh while it is still alive. If so, how do we extract the prohibited blood from the permitted meat?

Chazal gave us two methods of removing blood from meat. One is by soaking and salting the meat, and the other is by broiling it. In practical terms, the first approach, usually referred to simply as “kashering meat,” involves soaking the meat for thirty minutes, shaking off the water, salting the meat thoroughly on all sides, and then allowing the blood to drain freely for an hour. At the end of this process, the meat is rinsed thoroughly to wash away all the blood and salt. Indeed, Devorah is correct that the salting of all meat involves several washings. She was correct in assuming that the sign she saw in the butcher’s shop did not refer to these washings, but to a different washing that I will soon explain.

BROILING MEAT

An alternative method of extracting blood from meat is by broiling it. This is the only halachically accepted method of removing blood from liver. In this approach, the liver is sliced or slit to allow its blood to run out, the surface blood is rinsed off and the liver is placed under or over a flame to broil in a way that allows the blood to drain freely. Accepted practice is that we sprinkle a small amount of salt on the liver immediately prior to broiling it (Rema, Yoreh Deah 73:5).

Halachically, it is perfectly acceptable to broil any meat, rather than soak and salt it. However, on a commercial level, customers want to purchase raw meat and, therefore, the usual method used for kosher cuisine is soaking and salting. For most of mankind’s history, kashering meat was performed at home, but contemporaneously, the properly supervised butcher or other commercial facility almost universally performs it.

Although this explains why one must kasher meat before serving it, we still do not know why Ms. Nebraska was so concerned that her meat be washed en route.

SEVENTY-TWO HOURS OR BUST

The Geonim enacted that meat must be salted within seventy-two hours of its shechitah. They contended that, after three days, blood inside the meat hardens and is no longer extractable through soaking and salting. Should meat not be soaked and salted within 72 hours, they ruled that only broiling successfully removes the blood. Of course, if one does not want to eat broiled meat, this last suggestion will not satisfy one’s culinary preferences.

Is there any way to extend the 72 hours?

The authorities discuss this question extensively. Most contend that one may extend the time if the meat is soaked thoroughly for a while during the 72 hours (Shulchan Aruch, Yoreh Deah 69:13, see Taz ad loc.), although some permit this only under extenuating circumstances (Toras Chatos, quoted by Shach 69:53). On the other hand, some authorities rule that even a minor rinsing extends the 72 hours (Shu”t Masas Binyamin #108). It became standard to refer to meat that was washed to extend its time by the Yiddish expression, gegosena fleisch, hence the literal English translation, washed meat.

Also, bear in mind that this soaking helps only when the meat was soaked within 72 hours of its slaughter. Once 72 hours have passed without a proper soaking, only broiling will remove the blood. If the meat was soaked thoroughly, those who accept this heter allow a delay to kasher the meat for another 72 hours. If one is unable to kasher it by then, one can re-soak it again to further extend its 72 hours.

WASHING OR SOAKING?

At this point in my monologue, Devorah interrupted with a question:

“You mentioned soaking the meat and extending its time for three more days. But the sign called it ‘washed meat,’ not soaked meat. There is a big difference between washing something and soaking it.”

“Yes, you are raising a significant issue. Although most early authorities only mention ‘soaking’ meat, it became common practice to wash the meat instead, a practice that many authorities disputed (Pischei Teshuvah, Yoreh Deah 69:28; Darkei Teshuvah 69:231- 237). There are also many different standards of what is called ‘washing’ the meat. Some hechsherim permit meat that was not salted within seventy-two hours of its shechitah by having the meat hosed down before this time elapsed. Some spray a light mist over the meat and assume that the meat is ‘washed,’ or simply take a wet rag and wipe down the outside of the meat.”

“Why would anyone do that?” inquired Devorah.

“In general, people like to save work and water, and soaking properly a whole side of beef is difficult and uses a lot of water. In addition, if one hoses meat while it is on a truck, the water may damage the truck, whereas it is even more work to remove the meat from the truck. But if one does not hose the meat properly, most authorities prohibit it.”

At this point, we can understand why Ms. Nebraska was concerned about the washing of the meat. She knew that if the meat went 72 hours without being hosed, the rabbis would reject the delivery as non-kosher. During my brief conversation, I asked her if she knew the last time the meat was washed. “It was last washed 11 p.m. Wednesday and needs re-washing by 11 p.m. Saturday,” she dutifully notified me.

At this point, I noted to Devorah that we now had enough information to address her question. “The sign in the butcher shop stating that they sell washed meat means that they sell meat that was not kashered within 72 hours of slaughter, but was washed sometime before the 72 hours ran out. It does not tell us how they washed the meat, but it is safe to assume that they did not submerge it in water. If they were following a higher standard, they hosed the meat on all sides until it was soaking wet. If they followed a different standard, hopefully, they still did whatever their rav ruled. Since you told me that it was a reliable hechsher, presumably they hosed the meat thoroughly.”

I then asked Devorah if she wanted to hear the rest of the blizzard story. As I suspected, she did – and so I return to our snowed-in town.

MOTZA’EI SHABBOS

By Motza’ei Shabbos the entire region was in the grip of a record-breaking blizzard. Walking the half block home from shul had been highly treacherous. There was no way in the world I was going anywhere that night, nor anyone else I could imagine.

At the very moment I had told the dispatcher I could be reached, the telephone rang. A different, unfamiliar voice identified itself as the driver of the stuck truck. His vehicle was exactly where it had been Friday afternoon, stranded not far from the main highway.

The driver told me the already-familiar story about his load of kosher meat, and his instructions to have the meat washed before 11 p.m., if his trip was delayed.

There was little I could do for either the driver or the meat, a fact I found frustrating. Out of desperation, I called my most trusted mashgiach, Yaakov, who lived a little closer to the scene of the non-action. Yaakov was an excellent employee, always eager to work whenever there was a job opportunity.  I explained the situation to him.

“Rabbi,” responded Yaakov, “I was just out in this storm. Not this time. Sorry.”

I was disappointed. Not that I blamed Yaakov in the slightest. It was sheer insanity to go anywhere in this storm. In fact, I was a bit surprised at myself for taking the matter so seriously. After all, it was only a load of meat.

With no good news to tell the trucker, I was not exactly enthusiastic about calling him back. I hate to be the bearer of bad tidings. So I procrastinated, rather than tell the trucker he should sit back and wait for his kosher meat to expire.

An hour later, the phone rang again, with Mr. Trucker on the line. “Rabbi,” he told me, with obvious excitement in his voice, “I’ve solved the problem.” I was highly curious to find out where he located an Orthodox Jew in the middle of a blizzard in the middle of nowhere. For a fleeting moment, I envisioned a frum Jew stranded nearby and shuddered at the type of Shabbos he must have experienced.

The trucker’s continuing conversation brought me back to the reality of the unwashed meat.

“Well, Rabbi,” he exclaimed with the exhilaration Columbus’s lookout must have felt upon spotting land, “I discovered that I was stranded a few thousand feet from a fire station. And now, all the meat has been properly hosed. Listen to this letter.” The trucker proceeded to read me the documentation of his successful find:

“On Saturday evening, the 22nd of January, at exactly 9:25 pm, I personally oversaw the successful washing of a kosher load of meat loaded on trailer 186CX and tractor 2008PR. To this declaration, I do solemnly lend my signature and seal,

“James P. O’Donald, Fire Chief, Lincoln Fire Station #2.”

Probably noticing my momentary hesitation, the trucker continues, “Rabbi, do I need to have this letter notarized?”

“No, I am sure that won’t be necessary,” I replied. I was not about to tell the driver that halachah requires that a Torah observant Jew supervise the washing of the meat. On the contrary, I complimented him on his diligence and his tremendous sense of responsibility.

At this point, I had a bit of halachic responsibility on my hands. Since I knew the meat’s ultimate destination, I needed to inform the rav in Faroutof Townof the situation.

I was able to reach the Faroutofer Rav, Rabbi Oncelearned. “I just want to notify you that your city will shortly receive a load of meat that was washed under the supervision of the ‘Fire Station K.’” Rabbi Oncelearned had never heard of the “Fire Station K” supervision and asked if I was familiar with this hechsher. I told him the whole story and we had a good laugh. I felt good that I had supplied Rabbi Oncelearned with accurate information and prepared him for the meat’s arrival. After all, it would be his learned decision that would rule once the meat arrived in town.

WHERE’S THE BEEF?

Of course, Rabbi Oncelearned now had his own predicament: Would he have to reject the town’s entire order of kosher meat, incurring the wrath of hungry customers and undersupplied butchers? Or could he figure out a legitimate way to permit the meat?

There was, indeed, a halachic basis to permit the meat under the extenuating circumstances because of a different heter, but not because of the Lincoln fire station hose.

FROZEN MEAT

It is common that meat is slaughtered quite a distance from where it is consumed – such as slaughtering it in South America and shipping it frozen to Israel. Today, all mehadrin supervisions arrange that meat shipped this way is kosher butchered (called trabering)and kashered before it is frozen and shipped. This is a tremendous boon to proper kashrus, but it is a relatively recent innovation. Initially, these meats were shipped frozen and, upon reaching their destination several weeks later, they were thawed, trabered and kashered. Thus, the question developed whether this meat was fit to eat, since it arrived weeks after its slaughter.

In truth, earlier halachic authorities had already debated whether meat frozen for 72 hours can still be kashered by salting, some contending that this meat can only be broiled (Minchas Yaakov, Responsum #14 at end, quoted by Be’er Heiteiv 69:8; Pri Megadim, Sifsei Daas 69:60), whereas others ruled that deep freezing prevents the blood from hardening (Aruch Hashulchan, Yoreh Deah 69:79; Yad Yehudah 69:59; Shu”t Yabia Omer 2:YD:4 and Shu”t Yechaveh Daas 6:46). Some frowned on making such arrangements lechatchilah, but ruled that kashering frozen meat is acceptable under extenuating circumstances (Shu”t Igros Moshe, Yoreh Deah 1:27; 2:21).

Rabbi Oncelearned consulted with a posek who reasoned that since the truck had been stuck in a major blizzard, unquestionably the meat had been frozen solid, and that they could rely on this to kasher the meat after it thawed out. Thus, the firemen’s hose was used for naught, but I never told them. Please help me keep it a secret.

Someone meticulous about kashrus plans trips in advance to know what hechsherim and kashrus situations he may encounter. When in doubt what to do, one’s rav is available for guidance how to handle the situation.

Assembling Portable Cribs and Adjusting Shtenders on Shabbos

Since the parsha tells us that the Jews were enslaved to perform many construction projects, this is an appropriate week to analyze the halachos of construction on Shabbos.

Question #1: I am having a lot of company for Shabbos and we have a small house. On Friday night, I would like to remove the extra leaves from the table and then set up the “portacrib” in the space that creates, and then, in the morning, fold up the crib and put the table leaves back. May I do this on Shabbos?

Question #2: The lens fell out of my eyeglasses on Shabbos. May I pop it back in?

Question #3: I have an adjustable shtender that I usually leave at the same height. May I adjust it on Shabbos?

Question #4: The house is very crowded and stuffy because we are celebrating a kiddush. May I remove a door or a window to allow some additional ventilation? (I was asked this shaylah in Israel where doors and windows are hinged in a way that they are easily removable.)

Question #5: May I remove the pieces of glass from a broken window on Shabbos?

Before discussing these shaylos, we need to explain the halachos of construction on Shabbos, and how they apply to movable items such as household furnishings and accessories.

CONSTRUCTION ON SHABBOS

Boneh, building or constructing, is one of the 39 melachos of Shabbos. Included in this melacha is performing any type of home repair or enhancement, even only a minor repair (see Shabbos 102b). Thus, it is prohibited min haTorah to hammer a nail into a wall in order to hang a picture (Rashi, Eruvin 102a s.v. halacha). Similarly, one may not smooth the dirt floor of a house because this enhances the “structure” (Shabbos 73b).

Sosair, demolishing or razing, is also one of the 39 melachos, since the Bnei Yisroel disassembled the mishkan whenever they moved from place to place (Shabbos 31b). Therefore, any demolition of a building is prohibited min haTorah if the ultimate results are beneficial, such as the razing of part of a building in order to renovate it.

If there are no benefits to the demolition, it is still prohibited miderabbanan. Thus, wrecking the house out of anger violates Shabbos only miderabbanan (according to most Rishonim) since there is no positive benefit from the destruction (Pri Megadim 314:11 in Eishel Avraham). It is prohibited min haTorah because of other reasons, such as bal tashchis (unnecessary destruction) and being bad for one’s midos (see Shabbos 105b).

We already have enough information to address questions #4 and #5 above, whether one may remove a window to ventilate the house and whether one may remove pieces of glass from a broken window. It would seem that the first case is prohibited min haTorah since it involves the melacha of sosair for positive results. The second case may depend on whether the removal of the broken glass is so that no one hurts himself, in which case this might be prohibited only because of a rabbinic injunction, or whether it is being removed as the first step in the repair, in which case it would be prohibited min haTorah.

If the broken window is dangerous (but not life threatening), I may ask a non-Jew to remove the broken pieces of glass.

CONSTRUCTION OF MOVABLE ITEMS

Do the melachos of boneh and sosair apply to movable items, keilim (sing., kli), as well, or only to buildings? In other words, does the Torah’s prohibition refer only to something connected to the ground, or does it include construction of a movable item?

This question is disputed in the Gemara and by the Rishonim (Beitzah 10a). There are three basic opinions:

1. Keilim are not included in the prohibition of boneh and sosair.

2. Keilim are totally included in the prohibition of boneh and sosair.

3. A compromise position in which total construction or destruction of a kli is prohibited min haTorah, but minor improvement is not (Tosafos, Shabbos 74b and 102b). The halacha follows this opinion (Shulchan Aruch Orach Chayim 314:1).

WHEN DOES BONEH APPLY TO KEILIM?

Assembling or improving a kli in a way that involves strength and skill constitutes boneh, and disassembling it involves sosair. Therefore, it is prohibited min haTorah to assemble a piece of furniture in a way that tightens the pieces since this involves strength and skill to do the job properly. Similarly, replacing the handle on a hoe or other appliance is prohibited min haTorah since it requires skill and strength to do the job properly (Shabbos 102b).

Assembling furniture without tightening the pieces is not prohibited min haTorah, but is prohibited miderabbanan out of concern that one might tighten them (Tosafos, Shabbos 48a s.v. ha; Hagahos Ashri Shabbos 3:23). Therefore, one may not assemble a bed, crib, or table even without tightening the pieces (Kaf Hachayim 313:63).

To review:

One may not assemble a crib on Shabbos. Assembling it in a tight way is prohibited min haTorah, whereas assembling it without tightening the pieces is prohibited miderabbanan since one might assemble it tightly.

However, the halacha regarding the setting up of portacribs is lenient, since this does not involve re-assembling. Everything remains attached and the parts are merely straightened out. So they can certainly be opened and closed on Shabbos.

FIXING A BROKEN APPLIANCE

Repairing a broken appliance on Shabbos follows the same guidelines as assembling. Therefore it is prohibited when the repair requires skill and strength even if one repairs it in a temporary way.

Therefore, if the leg of a bed or table fell out, one may not reinsert it even temporarily out of concern that one might repair it permanently (Shulchan Aruch Orach Chayim 313:8). In this instance, Chazal decreed that the bed or table itself becomes muktzah in order to ensure that someone does not repair it (Rema Orach Chayim 308:16).

TWO EXCEPTIONS

There are two exceptions to this rabbinic prohibition, when one may assemble or repair an item in a non-permanent way. The first is on Yom Tov where the halacha is that one may use a temporary repair to fix a furniture item for a Yom Tov need (Tosafos, Beitzah 22a; Shulchan Aruch Orach Chayim 519:2, Magen Avraham and Gra ad loc.).

Example:

A leg fell off the table on Yom Tov. Repairing the table in a proper way is prohibited min haTorah, and therefore on Shabbos I may not even reinsert the leg into the table in a temporary way.  On Yom Tov, however, I may reinsert the leg without performing a proper repair, if this is the most convenient table to use.

ANOTHER EXCEPTION

If the broken or disassembled item is usually repaired or assembled without strength or skill, I may repair it in a temporary fashion. Chazal did not forbid this since it is unlikely that it will cause any Torah violation (Shabbos 47b with Tosafos).

Example:

In the time of the Gemara there existed a type of bed called “a coppersmiths’ bed.” Apparently, it was common that coppersmiths traveled from place to place making their living as iterant repairmen, and took portable beds with them that they reassembled at each destination. May one assemble this bed on Shabbos or is it considered construction? The Gemara quotes a dispute on the subject. According to the Tanna who contends that keilim are totally included in the prohibition of boneh and sosair, one may not assemble these beds on Shabbos (Shabbos 47a).

However, the conclusion of the Gemara is that one may assemble these beds on Shabbos. That is because these beds were never assembled very tightly and therefore it is not considered boneh to construct them, nor does it qualify as a rabbinic prohibition. However, an appliance that is normally assembled very tightly would be prohibited to assemble even loosely since it might be tightened (Tosafos ad loc.).

TABLE LEAVES

Inserting table leaves also does not require skill or strength and is therefore permitted on Shabbos. However, some tables have a clamp to tighten the table after inserting or removing the leaf. Some authorities contend that tightening this clamp might be prohibited min haTorah. Those who hold that way will also prohibit adding or removing leaves from these tables on Shabbos, even if one does not tighten the clamp, out of concern that one might tighten it.

THE SCREW – AN INTERESTING INVENTION

About three hundred and fifty years ago, the poskim began discussing appliances held together with screws. Around this time a drinking cup became available where the cup part screwed into a base. Does screwing this appliance together on Shabbos constitute boneh?

The halachic question here is as follows: Although this cup does not require someone particularly strong or skilled to assemble and disassemble, screwing on the base makes the cup into a well-made permanent appliance. Thus, the screw enables someone who is not particularly skilled to build a strong appliance.

The early poskim debate this issue. The Magen Avraham (313:12) rules that screwing an appliance together constitutes a melacha min haTorah (see Shaar Hatziyun 313:32); the Maamar Mordechai disagrees. In practice however, the Maamar Mordechai concludes that one should follow the stringent ruling of the Magen Avraham, and this is the accepted halachic practice. Thus, screwing the cup together is considered manufacturing a cup.

Similarly, today you can purchase furniture that you take home and assemble by yourself. Assembling this furniture is prohibited min haTorah even though it is made in a way that an unskilled person can assemble it. Thus, the definition of “skill and strength” is not whether the assembler needs to be skilled or strong, but whether the appliance thereby made is a permanent, well-made appliance.

BINOCULARS

Focusing a pair of binoculars involves turning a screw to make it tighter and looser. Does this violate boneh on Shabbos?

The poskim rule that one may focus binoculars on Shabbos (Kaf Hachayim 313:73; Ketzos Hashulchan 119:12). They explain that there is a qualitative difference between screwing the base onto the cup, which creates an appliance, and screwing the binoculars, which is the method of using it. One may use an appliance, just as one may use a house by opening and closing the doors and windows. This is not considered building an extension onto the house, but normal daily usage.

SHTENDER

Many shtenders are tightened and loosened by the use of a screw. May one adjust ashtender by loosening and tightening the screw?

According to Rav Shlomo Zalman Auerbach and Rav Vozner, one may adjust the height of the shtender on Shabbos since this is considered using the shtender, not making a new appliance (Shulchan Shlomoh 313:7; Shu”t Shevet Halevi 6:32; cf. Shu”t Minchas Yitzchok 9:38, who prohibits).

SALTSHAKER

Question:

I forgot to fill the saltshaker before Shabbos, and now I realize that it is empty. May I unscrew the saltshaker on Shabbos to fill it, or is this considered demolishing and repairing the saltshaker?

Rav Shlomo Zalman Auerbach rules that it is permitted to open, refill, and close the saltshaker on Shabbos without violating boneh. Although the saltshaker is indeed screwed closed, it is typically not screwed as tightly as one screws furniture or the cup we described earlier (Minchas Shlomoh 1:11:4 s.v. gam nireh).

A similar halacha, although for a different reason, applies to opening and closing a baby bottle. Although it is opened and closed by screwing, since it is intended to be opened and closed constantly, it is not considered demolishing and reconstructing it.

EYEGLASSES

If someone’s eyeglass lens falls out on Shabbos, may he reinsert it back into the glasses?

It would seem that it depends on the type of eyeglasses. In glasses where the lens is held in place simply by placing the lens in the frame, one may pop the lens back into place. This is because placing the lens into the glasses cannot constitute boneh since it does not require skill.

However, there are some frames that tighten around the lens with screws. According to the Magen Avraham, it would seem that tightening the screws to hold in the lens involves a Torah prohibition of boneh. If that is true, then one may also not pop the lens because of concern that one might screw the frame tight.

CONSTRUCTIVE WORK

We may ask ourselves, why is screwing a cup together or removing a window from its hinge considered melacha? They take a second to do and are not at all strenuous.

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos so that it should be a day of rest. He points out that the Torah did not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. Shabbos is a day that we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by withdrawing from our own creative acts (Shemos 20:11). By restraining from building for one day a week, we demonstrate Who indeed is the Builder of the world and all it contains.

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.

A Special Bar Mitzvah Brocha

We will shortly see a midrash that describes the childhood of Yaakov and Eisav, and how they went their separate ways after they turned bar mitzvah. Certainly, the most appropriate week to discuss:

Question #1: When?

When does a father recite the brochashe’petorani”?

Question #2: What?

What does this brocha mean?

Question #3: Why?

Why do we not recite this brocha at a bas mitzvah?

Question #4: Whether?

Does an adoptive father recite this brocha at his son’s bar mitzvah?

Introduction

After a bochur habar mitzvah receives his aliyah to the Torah, his father recites the following passage: Boruch she’petorani mei’onsho shel zeh. We will be discussing many questions about this passage, including:

What does it mean?

Is it a brocha or a prayer?

Why does it have such an impersonal text? The brocha does not even say that the bar mitzvah is his child!

Background: With Sheim and Malchus

In the Sefer Maharil, an early and highly respected source for accepted Ashkenazi halachic practice, we find the following:

“When the Maharil’s son turned bar mitzvah and read from the Torah, the Maharil recited a brocha, Boruch Atah Hashem Elokeinu Melech Ha’olam asher petorani mei’onsho shel zeh. Furthermore, we find this brocha in the works of the Mordechai with Sheim and malchus” (Sefer Maharil, Hilchos Kerias HaTorah). Thus, the Maharil rules that there is a regular brocha, including the words Hashem Elokeinu Melech Ha’olam (which is referred to as sheim umalchus), that is recited by a father when his son reaches the age of bar mitzvah and demonstrates this by reading from the Torah. It should be noted that although the Maharil attributes this ruling to an early rishon, the Mordechai, this ruling is not found in any extant editions of the Mordechai, although, as we will soon see, we do find it quoted in other authorities of the same era and school.

Some mention a custom that the father should place his hand on his son’s head when he recites the brocha, although I have never seen this in practice (mentioned in the Meshivas Nefesh [Vayikra 9] of R. Yochanan Luria, a prominent posek in fifteenth-century western Germany).

The ruling of the Maharil to recite the brocha of Boruch she’petorani with sheim umalchus is quoted by the Rema in his Darchei Moshe commentary on the Tur (Orach Chayim 225:1), where he adds the following, “However, I did not find this brocha in the Gemara, and I find it difficult to recite a brocha that is not mentioned in the Gemara and in the halachic authorities, although Bereishis Rabbah mentions it at the beginning of parshas Tolados.

Rosh

Presumably, what bothered the Rema is the following statement of the Rosh (Kiddushin 1:41), “We do not find that we recite any brocha that is not mentioned in the Mishnah, Tosefta, or Gemara.” Thus, the Rema was concerned that the brocha of Boruch she’petorani was never established by Chazal, and reciting it with sheim umalchus constitutes a brocha levatalah, a brocha recited in vain.

Bereishis Rabbah

The Bereishis Rabbah that the Rema quotes says as follows: “‘And the lads [Yaakov and Eisav] grew up (Bereishis 25:27).’ Rabbi Levi explained, ‘this can be compared to a hadas and a thorn bush that grew next to one another. Once they grew and blossomed, the hadas provided its beautiful fragrance and the thorn bush produced its thorns. Similarly, for thirteen years, both lads went to yeshivah and came home from yeshivah. After they turned thirteen, one went to batei midrash and the other went to houses of idolatry.’ Rabbi Elazar explained, ‘A person is obligated to work with his son until he turns thirteen years old. After that time, he should declare, “Boruch she’petorani mei’onsho shel zeh”’” (Bereishis Rabbah ad loc.).

Commentaries on Shulchan Aruch

In his glosses to the Shulchan Aruch, the Rema alludes to what he wrote in his Darkei Moshe commentary on the Tur and reaches the same conclusion: “Some say that when one’s son turns bar mitzvah, he should recite Boruch Atah Hashem Elokeinu Melech Ha’olam she’petorani mei’onsho shel zeh, but it is better to recite it without sheim umalchus” (Orach Chayim 225:2). We should note that I found no reference to this brocha in any Sefardic authorities, until the very late poskim. All the discussion about reciting it, and whether it should be a full brocha with sheim umalchus, I found only among the Ashkenazic authorities.

The Rema’s conclusion that Boruch she’petorani should be recited without sheim umalchus is followed by most, but not all, subsequent halachic authorities, including the Derisha, Levush, Tosafos Yom Tov (in his Divrei Chamudos commentary on the Rosh, Brochos 9:30), Shelah, Magen Avraham, Mishnah Berurah, and the Kaf Hachayim. The Kaf Hachayim, a very late authority who quotes many Ashkenazic sources, is the first Sefardic authority that I saw who makes any reference at all to the brocha of Boruch she’petorani.

(In the standard, older editions of the Derisha, his comments on this topic were omitted by the publisher, since the Derisha there merely quoted the comments of the Darchei Moshe written by his rebbe, the Rema. However, the Shelah had this quotation in his edition of the Derisha, and it is published in the newer editions of the Tur.)

With sheim umalchus

Thus far, I have quoted predominantly the majority who rule that Boruch she’petorani should be recited without sheim umalchus – in other words, not as a real brocha. However, there are several major authorities who rule that one must recite this brocha with sheim umalchus. In their opinion, since a brocha must include sheim umalchus, reciting this brocha without sheim umalchus does not fulfill the requirement. The Gra, in his comments to the Rema on Shulchan Aruch, simply states that the decision of the Maharil to recite the brocha with sheim umalchus is correct. This approach is subsequently quoted as the primary opinion by both the Chayei Odom (Klal 65:3) and the Aruch Hashulchan. The Chayei Odom rules very directly, “One whose son turns bar mitzvah, when he reads the Torah for the first time, he [the father] should recite the following brocha, Boruch Atah Hashem Elokeinu Melech Ha’olam asher petorani mei’onsho shel zeh.” He then reviews the discussion of the Rema, adding the following points:

Although the Bereishis Rabbah does not state explicitly that one should recite the brocha with sheim umalchus, the Gemara uses the same abbreviated wording when it means that one should recite a regular brocha with sheim umalchus.

The Chayei Odom then refers to a discussion in which the Maharshal ruled that we are not to introduce brochos that are not mentioned in the Gemara, and notes that this includes only brochos that are not mentioned in midrashim, either. However, a brocha that is mentioned in a midrash is halachically valid. The Chayei Odom completes his discussion by noting that his own halachic conclusion (in Klal 8:1) was that reciting a brocha in vain is only a rabbinic prohibition. Therefore, he concludes that once the Maharil and the Gra both rule that Boruch she’petorani should be considered a regular brocha, and we have a source for it in a midrash, then hamevoreich lo hifsid – one who recites it as a regular brocha does not lose. He notes that this is despite the fact that the prevalent custom follows the Rema. Even if Chazal never introduced such a brocha, reciting it would constitute only a rabbinic violation, and one may rely on the many opinions who rule that this brocha does exist (safek derabbanan lehakeil).

It is interesting to note that the Aruch Hashulchan, who usually follows accepted custom even when it appears to run against halachic literature, also rules to recite Boruch she’petorani with sheim umalchus. In other words, he agrees with the position of the Maharil, Gra and Chayei Odom, even though the general custom is not to follow that approach.

As mentioned above, the Maharil notes that he found this practice recorded in the Mordechai. We do not have this in our editions of the Mordechai, but obviously it was in the Maharil’s edition. Furthermore, we do have this practice mentioned in other sources from the same era and area. For example, the Tashbeitz Koton, who lived in the same place and time as the Mordechai (13th century Germany), writes the following: “In Bereishis Rabbah it says that a person should work with his son until he turns thirteen. Afterward, he is required to recite Boruch Atah Hashem Elokeinu Melech Ha’olam she’petorani mei’onsho shel zeh (Tashbeitz Koton #390).”

Early disputants

On the other hand, there are other rishonim who believe that Boruch she’petorani should not be treated as a regular brocha. For example, Rabbeinu Yehonoson, a talmid of the Raavad, cites the text of the brocha as Boruch Hamakom she’petorani mei’onsho shel zeh, which, clearly, avoids reciting Hashem’s Name as one does in a brocha (notes to Rif, Shabbos 55b). We should note that this is not from an Ashkenazic source, but from Provence. Although today Provence is often referred to as an area that followed Sefardic custom, that is not truly accurate. Provence, the area of southern France that borders on the Mediterranean Sea, was at the time of the rishonim an area that had its own minhagim, neither Sefardic nor Ashkenazic. It had absorbed from the traditions and authorities of both areas, yet had developed independently. For example, they began recital of ve’sein tal umatar on the 7th of Marcheshvan, which follows neither Sefardic nor Ashkenazic practice in chutz la’aretz.

What does the brocha mean?

Until this point, I have carefully avoided translating and explaining the words of Boruch she’petorani. An early posek, the Levush, upon recording the halachic discussion germane to the brocha of Boruch she’petorani, states the following: “The text of this brocha is not clear, since one who continues in the evil ways of his ancestors can be punished for their misdeeds for several generations, as the Torah states, pokeid avon avos al banim al shileishim ve’al ribei’im – that Hashem will remember the sins of someone who performed evil to four generations, if the descendants continue the nefarious practices of their antecedents.”

Apparently, the Levush understood the brocha to mean that the son is now exempt from the sins of his father. This means that until bar mitzvah, what happens to the son is because of the father’s misdeeds, and that, therefore, the father will be punished for harm that he caused to the son. This is based on the Gemara (Shabbos 149b) that a person is responsible for punishment that he caused to someone else. It is also borne out by a statement in a midrash, concerning the deaths of Machlon and Kilyon, Naomi’s sons, “Rav Chiya bar Abba said: ‘Until a child turns thirteen, the son is punished for the sins of his father; afterward, he is punished for his own sins.’”

Challenges to the Levush

The Tosafos Yom Tov, in his commentary to the Rosh (Divrei Chamudos 9:30), reviews much of the above material and then challenges the Levush’s approach to explaining the brocha. He writes, “This approach [of the Levush] is forced and difficult to reconcile with the words of the brocha. The intention of the brocha is that, until now, the father was responsible to educate his child in mitzvos and to have him grow in Torah. If the father did not fulfill his responsibility, he will be punished for this. Now that the son has become bar mitzvah, the responsibilities fall on the son himself, and the father will no longer be punished.” This approach is also recorded by the Magen Avraham.

When should the brocha be recited?

The Maharil mentions reciting the brocha when the son receives his first aliyah. The authorities explain this to mean that he performs a mitzvah activity that a child cannot perform (Divrei Chamudos; Magen Avraham). Thus, they rule that if the son led the services (davened in front of the amud), the father should already recite the brocha at that time, since a child cannot fulfill this mitzvah. One may also argue that a father should not recite it when his son has been called up to maftir and read only the maftir and the haftarah, since these activities can be performed by a minor –  a topic that we will need to address a different time. However, if the son read a different part of the parsha, and certainly, if he read the entire parsha, the father can recite Boruch she’petorani then.

Under which category of brochos does this fit?

We know that we have birchos hanehenin – brochos of benefit, including the brochos we recite before and after eating and the brochos before we smell certain fragrances. We also have brochos of praise, which include brochos upon seeing or otherwise experiencing wondrous creations of Hashem, such as the brochos recited when one sees the sea, sees something unusual, hears thunder, or witnesses lightning. And we have brochos of prayer, such as davening, tefilas haderech, and some of the brochos of sheva brochos. Under which heading does the brocha of Boruch she’petorani fit?

From the way the halachic authorities discuss it, it appears that it should be categorized under the heading of brochos of praise.

Why no malchus?

When the Rema ruled that one should not recite the name of Hashem when reciting Boruch she’petorani because he was concerned that it might be a brocha levatalah, why didn’t he suggest the following text: Boruch Atah Melech Ha’olam she’petorani mei’onsho shel zeh? Since one is not reciting the words Hashem and Elokeinu, there is no question about reciting a brocha levatalah, yet one is reciting a text closer to the brocha advocated by the Maharil,and this text includes the concept of malchus.

Indeed, this question can be asked on the Shulchan Aruch, Orach Chayim 218:9, in a different context. There, the Shulchan Aruch discusses someone reciting a brocha on a personal miracle that he has experienced, and it states as follows: “Some say that one should not recite this brocha unless it was a miracle that was beyond what usually happens in the world; but on a miracle that is within natural experience, such as, he was endangered by thieves at night and saved, or something similar, he is not required to recite a brocha. There are other authorities – who disagree with this [and require a brocha in this instance also]. Therefore, it is proper to recite this brocha without sheim umalchus.” The question to be asked on this ruling of the Shulchan Aruch is that there would be no question of brocha levatalah should one recite the brocha with the words Melech Ha’olam, so why does he omit them?

Rav Yosef Chayim Sonnenfeld answers that one does not recite Melech Ha’olam in these situations so that people will not think that someone fulfills a brocha by reciting Melech Ha’olam without reciting Hashem’s Name and Elokeinu (Shu”t Salmas Chayim, Orach Chayim #197).

Why an impersonal brocha?

Why did Chazal institute such an impersonal wording for this brocha, which makes no reference to the fact that the child is his son? I found this question in the sefer Alei Tamar, authored by Rav Yissochor Tamar, an eastern European rav who moved to Eretz Yisroel in 1933, where he became a rav in Tel Aviv. He suggests the following: The father is reciting a brocha that he is thankful that he is no longer responsible for his son’s sins (if we explain the brocha according to the Tosafos Yom Tov and the Magen Avraham). This implies that he thinks that his son will sin, certainly not something he wants to advertise in his role as father.

Daughters?

Why don’t we recite Boruch she’petorani when a daughter turns bas mitzvah? This question is raised by some of the later poskim, and I found two quite variant answers. The Pri Megodim explains that since min haTorah a father has the ability to marry off his daughter, in which case he would no longer be responsible for her education and not be punished for her aveiros, Chazal did not institute a brocha (Eishel Avraham 225:5). Explained in other terms, a father recites this brocha when he is no longer responsible for his son’s sins, because he has no other way of avoiding this responsibility, whereas he has a technical way to avoid responsibility for his daughter’s sins.

The Kaf Hachayim (225:15) provides a different answer to this question, which looks at the topic from almost the opposite angle. Since a daughter usually remains living in the home of her birth family until she marries, a father remains responsible for her, even after she becomes an adult. Therefore, reciting this brocha at her bas mitzvah would be premature.

One could perhaps suggest a third answer: Although a son who reads the Torah, receives an aliyah to the Torah, or leads the services has publicly demonstrated that he is now an adult, what equivalent action does a daughter perform at which we would expect her father to recite Boruch she’petorani?

Adoptive father

And now, for our last question: Does an adoptive father recite this brocha at his son’s bar mitzvah?

Rav Yitzchok Silberstein, in his sefer Chashukei Chemed,rules that an adoptive father is not responsible for his son’s aveiros, and, therefore, does not recite the brocha of Boruch she’petorani.

Conclusion

The father gets up to announce that he realizes the scope of his responsibility. Delving into the details of this brocha make us realize that raising a child to be G-d fearing is a serious task, incumbent on all those who are blessed with children. There are many factors that interplay in the raising of a child, especially in our age, but this brocha reminds us of our responsibility to do our best to imbue our children with a knowledge and love of Hashem and His Torah and mitzvos.

Take a Bow

Question #1: Davening in Public

“I am traveling, and the only place to daven is in a crowded terminal. Are there any special laws that I need to know?”

Question #2: Bowing or Genuflecting?

Have you ever genuflected?

Question #3: Bow and Arrow!

Does bowing have anything to do with bows and arrows?

Introduction:

Parshas Chayei Sarah mentions that Avraham bowed to the descendants of Cheis, when they agreed to give him a burial area for Sarah (Bereishis 23:7). The parsha also mentions that Eliezer bowed to Hashem to thank Him that his mission appeared to be achieving success. These provide a special opportunity to discuss some of the laws of bowing during the shemoneh esrei. As there is far more to this topic than can be covered in one article, we will, bli neder, have to return to the topic at some time in the future.

Thirteen components of tefillah

The Rambam rules that our daily mitzvah to daven includes thirteen factors, five of which are essential components of prayer that, if missing, require that davening be repeated. The headings of these five requirements are: Clean hands, proper covering of the body, cleanliness of the location, absence of physical bodily distractions, and proper focus (kavanah).

The other eight categories are important aspects for discharging the mitzvah, but someone who did not, or could not, observe them has still fulfilled the mitzvah. For example, there is a requirement to daven shemoneh esrei while standing and while facing the Beis Hamikdash. However, if someone could not, or did not, do either, he has fulfilled his mitzvah. Similarly, there is a requirement to bow at points during the shemoneh esrei, but someone who did not do so has fulfilled his mitzvah.

The Rambam (Hilchos Tefillah 5:10) explains that, for most people, davening requires that we bow five times in the course of the recital of the shemoneh esrei. I will explain shortly why I wrote “for most people.”

These five times are:

At the beginning and end of the first brocha of shemoneh esrei

At the beginning and end of the brocha of modim

At the very end of the shemoneh esrei

Most people?

Why did I say that the requirement to bow five times at every prayer is for “most people?”

This is because the Rambam (Hilchos Tefillah 5:10) alludes to the following passage of Talmud Yerushalmi (Brochos 1:5): “For the following brochos, one should bow: For the first brocha, both at the beginning and at the end, and for modim, both at the beginning and at the end. Someone who bows for every brocha should be taught not to do this. (See also Tosefta, Brochos 1:11 and Bavli, Brochos 34a.) Rabbi Yitzchak bar Nachman cited in the name of Rabbi Yehoshua ben Levi, ‘A kohein gadol bows at the end of every brocha; the king, at both the beginning and end of every brocha. Rabbi Simon quoted from Rabbi Yehoshua ben Levi, ‘The king – once he bows, he does not straighten up until he completes his entire prayer. What is my source? The verse that teaches, and it was when Shelomoh completed praying to Hashem this entire prayer and this entire supplication, that he then stood up from before the mizbei’ach of Hashem from bowing on his knees (Melachim I 8, 54).’”

We see that there is a dispute between Rabbi Yitzchak bar Nachman and Rabbi Simon (his name is not Shimon, but Simon, spelled with a samech, and he is an amora frequently quoted in the Yerushalmi) whether Shelomoh Hamelech teaches us that a king should always daven shemoneh esrei while kneeling, or whether this was a one-time practice, but not something that a king is always required to do.

Thus, those whom the Torah insists receive much honor must bow more frequently during their daily tefillah. The kohein gadol is required to bow in every brocha of shemoneh esrei, which is forbidden for everyone else, as we see in the above-referenced Tosefta. The Rambam rules according to Rabbi Simon, that the king, who receives much greater honor, is required to bow for his entire prayer.

Term limits?

This poses a question: The Tosefta rules that we should not bow in every brocha of shemoneh esrei; yet, we have now been taught that both the kohein gadol and the king should bow in each brocha of shemoneh esrei. How can it be that something is forbidden for everyone else and is required of the kohein gadol and the king?

The answer to this question seems to lie in the following explanation of Tosafos (Brochos 34a s.v. melamdin), who asks, “What is wrong with bowing extra times?” Tosafos provides two answers to the question (see also Tosafos Rabbeinu Yehudah and Bach, Orach Chayim 113):

1. If people develop the habit of bowing whenever they want to, it will cause Chazal’s takkanah (requiring that we bow at the beginning and end of only these two brochos) to become uprooted. Therefore, we insist that they not bow any extra times.

2. It is being ostentatious about his religious observance, a halachic concept called yohara.

The Tur (Orach Chayim 113) rules according to Tosafos. Based on Tosafos’s first answer, he concludes that it is permitted to bow in the middle of any brocha of shemoneh esrei, just not at the beginning or end.

We can also explain why Rabbi Yitzchak bar Nachman ruled that the kohein gadol and the king bowing in each brocha does not violate the ruling of the Tosefta. This was the takkanah – that a commoner bow only in two brochos, and the kohein gadol and king bow in each brocha.

When the bow breaks

As I mentioned above, the halacha is that bowing is not essential, which means that you fulfill the mitzvah to daven, even if you did not bow. There are extenuating circumstances in which you are not permitted to bow, but you are required to daven without bowing. The Shulchan Aruch (Orach Chayim 113:8) cites such a case — someone who must daven in a public place, and a person opposite him is sporting a cross or other idolatrous image. The halacha is that you should daven but you should not bow, so that a bystander not think that you are bowing to the image.

Don’t bow to idols!

At this point, we can address our opening question: “I am traveling, and the only place to daven is in a crowded terminal. Are there any special laws that I need to know?”

The answer is that you should look around to see if any of your co-travelers are sporting crosses or other signs of idolatry, and, if they are, do not bow during your davening.

Take a bow

The Rambam mentioned that we are required to bow five times, including another time at the end of the shemoneh esrei, whose source is from a different passage of Gemara (Yoma 53b). “Rabbi Chiya, the son of Rav Huna, reported that he saw that Abayei and Rava would take three steps back while bowing.” This passage of Gemara is quoted not only by the Rambam, but also by the Rif and the Rosh (both at the end of the fifth chapter of Brochos, after they quote the other halachos about bowing during davening). Because of space considerations, we will have to leave the detailed discussion of the topic of bowing at the end of shemoneh esrei for a different time.

How can you bow?

We now have some background to understand the words of the Rambam and the other rishonim who rule that we are required to bow five times during the shemoneh esrei. However, we do not yet know what type of bowing is required. We do know  from the verse in Melachim quoted above that when Shelomoh Hamelech bowed, he actually kneeled with both knees on the ground. We do not usually consider this to be a Jewish way of prayer, but associate it with other religions. What does the Torah teach about this?

In Tanach and Chazal we find at least five different levels of bowing, each with its own defining terms.

Hishtachavayah

Hishtachavayah is bowing in which a person is completely prostrate, with arms and legs stretched out completely flat on the ground(Megillah 22b; Shavuos 16b). The Gemara proves this from the rebuke that Yaakov gave to Yosef, after the latter told his father about his dream, havo navo ani ve’imcha ve’achecha lehishtachavos lecha artzah, “Will it happen that I, your mother and your brothers will bow (root: hishtachavayah) down to you to the ground?” Thus, we see that the word hishtachavayah refers to bowing all the way to the ground.

This type of bowing is mentioned several times in Tanach and the Gemara. Some people bow this way during the repetition of musaf on Yom Kippur when we “fall kor’im.”

Kidah

Kidah is kneeling and placing one’s face against the floor. On the basis of a posuk (Melachim I 1:31), the Gemara (Brochos 34b; Megillah 22b; Shavuos 16b) proves that this is the meaning of the word kidah. If you have ever seen how Moslems pray, this is what kidah is.

Korei’a al birkav

Korei’a al birkav ­is called, in English, kneeling. As I mentioned above, this is what the posuk describes Shelomoh Hamelech doing when he dedicated the Beis Hamikdash (Melachim I 8:54).

Shocheh

Shocheh is what in English is called bowing, which means lowering your head and upper part of your torso, but remain standing on your feet.

Kor’im

Kor’im or more accurately, keri’a (the root is spelled kof, reish, ayin, not to be confused with the word for reading, which is spelled kuf, reish, alef) is used at times to mean when you bow and also bend your knees as part of your bowing. In English, this is called genuflecting.

How do we bow?

The Gemara (Brochos 12a), cited by the Rambam (Hilchos Tefillah 5:10), rules: “Someone who is praying should bow at the word Boruch, and straighten himself to an upright position when he says the name of Hashem.” The Gemara continues: “Rav Sheishes, when he bowed, bowed down like a stick, when he straightened himself upright, he straightened himself like a snake.” Although there are other interpretations of this passage of Gemara, Rashi explains that Rav Sheishes bowed down in one motion, but when he straightened himself upright upon reciting the name of Hashem, he did so in two motions, his head first, and then the rest of his body, so that he should not give the impression that bowing was something that he did not want to do. The Rambam (Hilchos Tefillah 5:10) and the later authorities codify this as the proper method of bowing in shemoneh esrei. To quote the Rambam, “How should one bow? When he says Boruch, he should bend his knees; upon saying Attah, he should bow quickly; and upon saying Hashem’s name, he should slowly rise, his head first and then his body.” However, an older or ill person is not required to bow with his entire body, and it is sufficient if he simply bends his head. This last ruling is quoted in the Shulchan Aruch (Orach Chayim 113:5.)

Modim

In three of the places in the shemoneh esrei when we bow, we do so when saying the words Boruch Attah Hashem, and, according to the instructions that we have studied, we now know how to genuflect and bow when we say these prayers. However, the other two places, at the end of davening, and for modim, there is no “Boruch” in the tefillah when we bow. Therefore, at these places, common custom is to bow, but not genuflect (Mishnah Berurah).

Bow like a bow

This subtitle is not meant to be a corny pun, but an expression of the halacha. The Rambam (Hilchos Tefillah 5:12) rules: “All these bowings require that one bow until all the vertebrae in the spine protrude and (his back) is shaped like a bow.” In Hebrew, this is not a pun: the word for bow, keshes, and the word for bowing, korei’a,bear no similarity.

The source for the Rambam’s explanation is from the following passage of Gemara (Brochos 28b): Rav Tanchum quoted from Rabbi Yehoshua ben Levi, someone who is praying must bow until all the vertebrae in his spine protrude. Ulla said: Until a coin the size of an issar can be seen opposite his heart. Rav Chanina said, once he tilted his head, he is not required to do more. Rava explained Rav Chanina to mean that this is true when it is obvious that he is trying to bow more, but he is unable to do so, because of age or infirmity (see Tur and Shulchan Aruch, Orach Chayim 113).

The halachic authorities also rule that someone should not bow so low that his mouth is opposite his belt (Shulchan Aruch, Orach Chayim 113:5). This is because it looks like he is trying to show off (Mishnah Berurah).

Bowing or genuflecting?

At this point, let us refer to our second opening question: Have you ever genuflected?

Since we bend our knees when we say the word boruch, someone who davens three times a day and bows by bending his knees at the beginning and end of the first brocha and at the end of modim genuflects nine times a day. Thus, the surprising answer is that you probably genuflect many times a day, without knowing that you are doing so!

Genuflect, kneel, korei’a

There is a very interesting linguistic curiosity that I want to point out. The word genuflect comes from a contraction of two words, genu, related to knee, and flect, which means to bend. (Think of the English verbs deflect, flex.) Language experts explain that the origin of the word genu,which is Latin, and the words, knee and kneel, which are German, are of common origin, both coming from a common cognate ancestor that refers to the knee. This association is very surprising, because old German and pre-Latin languages, although both of Indo-European origin, have few common sources. When there are common roots in both, the origin of the word can invariably be traced to the time of the dor ha’pelagah, when the scattering of the nations occurred and the languages of mankind became divided. In these instances, the true root of the word is invariably Hebrew, notwithstanding that linguists categorize Hebrew as a Semitic language and not Indo-European. This rule bears true here again, once we realize that it is not unusual that a reish sound becomes a nun when changing languages, as in the example of Nevuchadnetzar, called Nevuchadretzar at times. Thus, since, according to Chazal (see Yoma 10a), German is the older of the two languages (German and Latin), clearly the original root was kof, reish, ayin, the shoresh of the word korei’a, which means to bow on one’s knee or knees, or to genuflect or kneel, with the reish becoming an “n” sound, first in German and then later in Latin. Thus, the English words knee and kneel and the Latin word genu all originate from the Hebrew word korei’a, or, more accurately, its root, kof, reish, ayin.

Conclusion

The power of tefillah is very great. Through tefillah one can save lives, bring people closer to Hashem, and overturn harsh decrees. We have to believe in this power. One should not think, “Who am I to daven to Hashem?” Rather, we must continually drive home the concept that Hashem wants our tefillos, and He listens to them! Man was created by Hashem as the only creation that has free choice. Therefore, our serving Hashem and our davening are unique in the entire spectrum of creation.

Understanding how much concern Chazal placed in the relatively minor aspects of davening should make us more aware of the fact that davening is our attempt at building a relationship with Hashem. As the Kuzari notes, every day should have three very high points — the three times that we daven. Certainly, one should do whatever one can to make sure to pay attention to the meaning of the words of one’s Tefillah. We should gain our strength and inspiration for the rest of the day from these three prayers. Let us hope that Hashem will accept our tefillos together with those of all Klal Yisrael!

Bishul Akum for the Ill

Photo by rea einskisson from FreeImages

Question #1: Cooked on Shabbos

If a non-Jew cooks on Shabbos for someone who is ill, is the food he cooks prohibited because of bishul akum? Obviously, the ill person is permitted to eat the food, but there are several ramifications to this question.

Question #2: Bishul akum equipment

If a non-Jew cooked using my pots, do they require kashering because they absorbed non-kosher food?

Background:

Chazal instituted the law of bishul akum to discourage inappropriate social interaction, which could lead to intermarriage, and also to guarantee that kashrus not be compromised (Rashi, Avodah Zarah 35b s.v. Vehashelakos and38a s.v. Miderabbanan and Tosafos ad loc.).

There are two major exceptions to the law of bishul akum – that is, situations in which a non-Jew cooked food that one may eat, despite the prohibition against bishul akum. One exception is food that is usually eaten raw, such as an apple. Therefore, if a non-Jew baked apples and did not use anything non-kosher while doing so, the apples are kosher.

Another exception is something that would not be served on a king’s table. There are many interpretations as to how to define this, but all poskim agree that small fish and porridge are permitted when cooked by a non-Jew, as long as nothing non-kosher was added – because these items are not served to a king.

This article will discuss a possible third exception to bishul akum: Food cooked by a non-Jew on Shabbos for someone who is ill.

Bishul akum for the ill

In a different article, we learned that we may ask a non-Jew to do on Shabbos whatever is required for the care of a person who is ill, even asking a non-Jew to cook for the sick person. This is permitted even if no life-threatening emergency exists, as long as the person is ill enough to be choleh kol gufo, usually defined as someone ill enough to go to bed (Shulchan Aruch, Orach Chayim 328:17), or whose discomfort is intense enough that he feels that his entire body is affected (Rema ad locum).

In the previous article, I did not discuss an important question: If food cooked by a non-Jew is prohibited because of bishul akum, how can a Jewish person eat what the non-Jew cooked? There are two obvious answers to this question:

1. Food cooked by a non-Jew to take care of a sick person was excluded from the prohibition of bishul akum.

2. Because of his medical needs, a choleh kol gufo is exempt from the prohibition of bishul akum.

In either event, we have several follow-up questions:

Does this heter apply only to what is cooked on Shabbos, when a Jew may not cook for the sick person, or does it apply all the time? If this dispensation applies only to what a non-Jew cooked on Shabbos,is the ill person permitted to eat the leftovers after Shabbos, or does that food become prohibited once a Jew can cook for him? And, assuming that the sick person is permitted to eat the food after Shabbos, is it permitted for a different Jew, who is perfectly healthy, to eat what the non-Jew cooked on Shabbos?

Does bishul akum affect pots?

Finally, if the non-Jew used a Jew’s kosher pots to cook for the ill on Shabbos, do the pots become non-kosher because they absorbed bishul akum? If so, do the pots now need to be koshered before they may be used again? Or, since it is permitted to ask the non-Jew to cook for the Jewish ill, do the pots not need to be koshered afterward? Or, an even more lenient idea: perhaps bishul akum applies only to food, but does not prohibit pots at all?

This entire list of questions is discussed and debated by the rishonim. Their differing approaches provide a goldmine for the scholar attempting to analyze critically the legal (halachic) status of bishul akum and to comprehend clearly Chazal’s ruling permitting asking a non-Jew to cook for the ill. As we will soon see, there are various ways to answer the questions that we raised, and differences in halachic opinion affect decisions made in kosher nursing homes and hospital to this very day.

Explaining these issues also affords an opportunity to understand an important chapter in Jewish history that is not as well known as it should be.

Debate in Barcelona

Barcelona is the second largest city in Spain and the capital of Catalonia, the northeastern region of the country. Today, there is a tiny Jewish presence in the city, but, in the times of the rishonim, Barcelona was a major headquarters of Torah. At different times, many gedolei Yisroel lived in the city, including the Raavad, the Ramban, Rav Yehudah Bartzeloni, theRashba, the Rosh (who had fled from Germany, which had become very dangerous for rabbonim), the Rosh’s distinguished sons (including his son Yaakov, who later  authored the Tur), Rav Aharon Halevi (known as the Re’ah), the Ohr Hashem (Rav Chasdai Kreskas), the Ritva, and the Nimukei Yosef, to list some of the better-known gedolim who walked the streets of this city.

In the thirteenth century, three major halachic works appeared in Barcelona in quick succession. These works clarified the halachos observed in a frum house. The first, written by theRashba, was aptly called Toras Habayis (literally, the laws of the house), whichdiscussed, in very organized and detailed fashion, the laws of kashrus, mikveh, netilas yadayim and other household laws. It was actually two different works. One, a brief edition called the Toras Habayis Hakatzar, offered instructions for household owners to manage their homes in accordance with halacha. The other, Toras Habayis He’aruch,is an extensive and thorough explanation of the halachic background to the topics, quoting the original sources in the Mishnah, Gemara, and early authorities. It discusses and explains the arguments, sources and opinions cited by the various great, early poskim on the subject, and then the Rashba reaches his conclusion.

Shortly after the Toras Habayis saw the light of day, another work, called Bedek Habayis (literally, inspections [or repairs] of the house) appeared, written by Rav Aharon Halevi ( the Re’ah) exclusively to disagree with the conclusions of the Toras Habayis. The Bedek Habayis went to great length to demonstrate where he felt the Toras Habayis’s analysis and comparisons were incorrect.

Eventually, a third work was produced anonymously, called the Mishmeres Habayis (protecting the house), the purpose of which was to explain that the original Toras Habayis’s conclusions had been correct and that the Bedek Habayis was incorrect.

These works were all produced before the invention of the printing press, which means that they were circulated via copying them by hand.

The mystery is discovered

At first, the members of the community were baffled trying to identify the author of the Mishmeres Habayis. This should indicate the high level of Talmudic scholarship that existed then in Barcelona – apparently, there were enough Torah scholars in Barcelona capable of writing such an incredibly scholarly work that it could be published anonymously, without the identity of its author being immediately obvious.

Eventually, it was discovered that the author of the Mishmeres Habayis was none other than theRashba himself.

At this point, let us return to our topic, and to our original opening questions:

1. If a non-Jew cooks on Shabbos for someone who is ill, is the food he cooks prohibited because of bishul akum?

2. If a non-Jew cooked using my pots, do they require kashering because they absorbed non-kosher food?

Opinion of the Re’ah

Although the Toras Habayis does not discuss these topics, both the Bedek Habayis and the Mishmeres Habayis do. The Bedek Habayis (Bayis 3 Shaar 7) concludes that:

1. Food cooked by a non-Jew to take care of the needs of someone ill does not carry the prohibition of bishul akum.

2. Bishul akum does not affect equipment.

The Bedek Habayis permits the first case for the following reason: At the time this food was cooked, it was permitted to be eaten. A person who is well may not eat it because of the laws of Shabbos – we are concerned that someone may ask the non-Jew to do something on Shabbos that is not permitted for a Jew to do – but not because of the prohibition of bishul akum. Since the cooking was performed not for social reasons but in order to have fresh food for ill people, no prohibition of bishul akum was incurred at the time that the food was cooked. Therefore, it cannot become prohibited as bishul akum after Shabbos is over. The Re’ah concludes that the food cooked by a non-Jew for an ill Jewish person on Shabbos is permitted after Shabbos, even for a perfectly healthy person.

Furthermore, reasons the Bedek Habayis, should a non-Jew cook for himself in a kosher pot, the food is prohibited because of bishul akum but the pot itself remains kosher. The reason is that the use of this pot does not create any favorable social interaction between Jews and non-Jews that we must avoid. In other words, the Bedek Habayis contends that since the prohibition of bishul akum was limited to situations that encourage social interaction, the taste of bishul akum that is absorbed into pots was never prohibited. Enjoying the residual taste remaining in a pot does not encourage unwanted social interaction.

The Bedek Habayis then quotes Rav Yitzchak beRabbi Manoach, who rules that what a non-Jewish slave cooks as part of the responsibility to the household that owns him or her is not prohibited as bishul akum, since there is no increased social interaction when someone cooks as an aspect of being a slave. The point of the Bedek Habayis is that Rav Yitzchak beRabbi Manoach contends that eating what a gentile cooked is not included in the prohibition of bishul akum when the circumstances do not encourage social interaction – and certainly the residual absorption in the pots is permitted.

The Bedek Habayis then quotes from “mori rabbeinu Moshe, z”l,” the Ramban (who had headed a yeshivah in Barcelona and was the Re’ah’s primary rebbe), that, lechatchilah, cooking in a Jewish house should not be performed by a non-Jewish slave – but if it was, the food is permitted bedi’eved.

TheRashba’s response

TheRashba, in his Mishmeres Habayis, disagrees with every point made by the Re’ah in the Bedek Habayis. He compares a non-Jew cooking food for an ill person on Shabbos to the situation of a person who is deathly ill and there is no fresh meat to eat. The halacha in the latter situation is that, if no shocheit is available, you are required to kill an animal, rendering its meat neveilah, and cook it for the sick person. As soon as a shocheit becomes available, you are no longer permitted to feed the sick person non-kosher. Of course, the pot in which the neveilah was cooked is not kosher and must be koshered. Similarly, Mishmeres Habayis contends that although it is permitted to have a non-Jew cook for someone ill, the food is permitted to be eaten only by the ill and only until there is enough time after Shabbos to cook fresh food. Once that time arrives, all the food that was cooked by the non-Jew becomes prohibited as bishul akum, even for the sick person, and certainly it was never permitted for someone well to eat. In addition, the previously kosher pot used by the non-Jew to cook for the ill on Shabbos is prohibited because of the bishul akum absorbed in it, and the pot must be koshered before it can be used again.

The Mishmeres Habayis explains the basis for this law as the general rule, “kol detikun rabbanan ke’ein de’oraysa tikun,”whatever the Sages established they did in a system similar to the rules of the Torah” (Pesachim 30b, 39b, et al.). Therefore, when Chazal created the prohibition of bishul akum, they gave the prohibited product all the rules that apply to items prohibited min haTorah. Thus, we see that Barcelona was the scene of a major halachic controversy that has ramifications to this very day.

How do we rule?

Well, who is “we”? The Ran (Shu”t Haran 5:11-12), the primary Spanish halachic authority in the generation following theRashba and Re’ah, discusses the second question, whether bishul akum prohibits the equipment used to cook it. He opines that logically the prohibition of bishul akum should apply only to the food prepared and not to the equipment in which it was produced, since concerns about social interaction apply only to the food, and not to the equipment. However, that since there are poskim who disagreed with the Re’ah, the Ran concludes that it is preferable to have the equipment koshered, and, if this food was cooked in an earthenware pot (which cannot be kashered), the earthenware pot should be broken (see Pesachim 30b; Avodah Zarah 33b-34a).

Two contemporaries of the Ran also weigh in on the question of whether we require kashering of equipment in which bishul akum occurred. The Tur (end of Yoreh Deah 113) quotes that theRashba required kashering equipment that cooked bishul akum, even if it was a case of non-Jewish servants who cooked in a Jew’s house. He notes that theRashba holds that, to avoid prohibiting the pots, when non-Jewish workers cook for themselves in a Jewish house, someone Jewish must participate in the cooking, in a way that avoids the prohibition of bishul akum.

The Tur himself does not conclude this way. He quotes that his father, the Rosh, a contemporary of theRashba, contends that Chazal prohibited only the food of bishul akum, but did not extend the prohibition to flavor absorbed into pots and other equipment. In other words, the Rosh accepts the approach of the Re’ah that bishul akum is different from other proscriptions and is prohibited only to the extent that it would cause unwanted social interactions.

The other contemporary of the Ran who discusses this issue is Rabbeinu Yerucham, a disciple of the Rosh, who writes that most authorities agreed with the Rosh that bishul akum does not create a prohibition on the equipment used to cook it. However, the Beis Yosef, after quoting Rabbeinu Yerucham, disagrees with his conclusion that most authorities accept the Rosh’s opinion. The Beis Yosef writes that most authorities who lived after theera of the Rashba, Re’ah and Rosh accept the opinion of theRashba as the conclusive halacha. In Shulchan Aruch,he mentions both approaches, but concludes that the main approach is that equipment used for bishul akum does require kashering.

Three times lucky

Above, I quoted the Ran who states that if bishul akum prohibits the vessels, if an earthenware pot was used, the pot must be broken. However, theRashba himself did not rule this way. This is based on a passage of Talmud Yerushalmi (Terumos 11:4) that rules that a lenience applies when a prohibition is rabbinic in origin, which is the case of bishul akum. In these circumstances, Chazal permitted kashering earthenware by boiling the vessel three times(Rashba, quoted by Tur Yoreh Deah 123). This ruling is accepted by the Shulchan Aruch (Yoreh Deah 113:16).

What about for the ill?

Above, we mentioned that theRashba and Re’ah also disagreed about whether food cooked by a non-Jew on Shabbos for a Jewish person who is ill is prohibited as bishul akum. How do we rule on this question? Again, it depends on whom you ask: The Rema and the Shach conclude that the food is permitted after Shabbos, even for a healthy person, whereas the Taz, Mishnah Berurah (328:63) and others rule that it is prohibited even for the ill person once food cooked by a Jew becomes available.

Conclusion

According to the Rambam, the reason Chazal prohibited asking a non-Jew to do work on Shabbos is in order not to diminish sensitivity to doing melacha ourselves. Refraining from having even a non-Jew work is testimony to our deep conviction that Hashem created the world.

We have just learned an exception to this rule: When someone is ill, we are permitted to ask a non-Jew to cook for him. This will not diminish sensitivity to doing melacha ourselves, but will increase our sensitivity to the needs of the ill and the mitzvah of bikur cholim, ensuring that we attend to their needs as best as we can.

The Torah’s Instructions to Non-Jews—The Laws of Bnei Noach

This article is dedicated to the memory of my much beloved and missed brother-in-law, Rabbi Yosef Azar, a very exceptional and popular teacher at various seminaries, who lost his protracted battle with cancer this past week. Rav Yosef leaves behind a widow, my sister Yocheved, and ten children, eight of whom are still living at home; the youngest is only five years old.

Although it may seem strange for a non-Jew to ask a rav a shaylah, it should actually be commonplace. After all, there are hundreds of times more non-Jews than Jews in the world, and each one of them should be concerned about his or her halachic responsibility. Many non-Jews are indeed concerned about their future place in Olam Haba, and had the nations not been deceived by spurious religions, many thousands more would observe the mitzvos that they are commanded. It is tragic that they have been misled into false beliefs and practices.

An entire body of literature discusses the mitzvah responsibilities of non-Jews. Although it was Adam who was originally commanded to observe these mitzvos, they are usually referred to as the “Seven Mitzvos of Bnei Noach,” since all of mankind is descended from Noach.

Furthermore, a Jew should be familiar with the halachos that apply to a non-Jew, since it is forbidden to cause a non-Jew to transgress his mitzvos. This is included under the Torah’s violation of lifnei iver lo sitein michshol, “Do not place a stumbling block before a blind person.” In this case, this means do not cause someone to sin, if he is blind to the severity of his violation (Avodah Zarah 6b).

In actuality, a non-Jew must observe more than seven mitzvos. The “Seven Mitzvos” are really categories; furthermore, there are additional mitzvos that apply, as we will explain.

THE BASICS

The seven cardinal prohibitions that apply to a non-Jew are:

1. AVODAH ZARAH

It is forbidden for a non-Jew to worship idols in any way. Most religions of the world are idolatrous, particularly the major religions of the East.

Although Christianity constitutes idol worship for a Jew, there is a dispute whether it is idolatry for a ben Noach. Some poskim contend that its concepts of G-d do not violate the prohibition against Avodah Zarah that was commanded to Adam and Noach (Tosafos, Bechoros 2b s.v. Shema; Rama, Orach Chayim 156). However, most later poskim contend that Christian belief does constitute Avodah Zarah, even for a non-Jew (Shu’t Noda BiYehudah, Tenina, Yoreh Deah #148; Chazon Ish, Likutim, Sanhedrin 63b p. 536). In this regard, there is a widespread misconception among Jews that only Catholicism is Avodah Zarah, but not Protestantism. This is untrue. Every branch and type of Christianity includes idolatrous beliefs.

2. GILUY ARAYOS, which prohibits many illicit relationships.

3. MURDER, including abortion (Sanhedrin 57b), suicide, and mercy killing.

4. EIVER MIN HACHAI, eating flesh taken from a live animal.

This prohibition includes eating a limb or flesh removed from an animal while it was alive, even if the animal is now dead.

In the context of this mitzvah, the Rishonim raise an interesting question. Adam was forbidden to eat meat (see Bereishis 1:29-30), but, after the Flood, Noach was permitted to do so (Bereishis 9:3; see Rashi in both places). So, why was Adam prohibited from eating flesh of a living animal, if he was prohibited from eating meat altogether?

Two differing approaches are presented to answer this question. The Rambam explains that the prohibition to eat meat that was given to Adam was rescinded after the Flood, and it was then that the prohibition of Eiver Min HaChai was commanded to Noach for the first time (Rambam, Hilchos Melachim 9:1). According to this approach, six of the present day “Seven Mitzvos” were commanded to Adam, while the seventh was commanded only at the time of Noach.

Other Rishonim contend that Adam was permitted to eat the meat of an animal that was already dead, and was prohibited only from killing animals for food. In addition, he was prohibited to eat meat that was removed from a living animal, and this prohibition is one of the “Seven Mitzvos” (Rashi, Sanhedrin 57a s.v. Lemishri and Bereishis 1:29; Tosafos, Sanhedrin 56b s.v. Achal). The first prohibition was rescinded after the Flood, when mankind was permitted to slaughter animals for food. Thus, according to the Rambam, Adam was prohibited both from killing animals and from eating any meat, while according to the other Rishonim, he was prohibited from killing animals but allowed to eat meat.

ANIMAL BLOOD

Although a non-Jew may not eat the flesh of a living animal, he may eat blood drawn from a living animal (Rambam, Hilchos Melachim 9:10; cf. Sanhedrin 56b and 59a, and Rashi, Bereishis 9:3). Some African tribesmen extract blood from their livestock, mix it with milk, and drink it for a nutritious beverage. Although we may consider this practice very offensive, it does not in any way violate the mitzvos for a non-Jew.

5. BLASPHEMY.

Cursing Hashem. As with his other mitzvos, a non-Jew may not claim that he was unaware it is forbidden.

6. STEALING.

This prohibition includes taking even a very small item that does not belong to him, eating something of the owner’s food on the job without permission, or not paying his employees or contractors (Rambam, Hilchos Melachim 9:9). According to some opinions, it includes not paying his workers or contractors on time (Meiri, Sanhedrin).

7. DINIM, literally, laws.

This mitzvah includes the application of a code of civil law, including laws of damages, torts, loans, assault, cheating, and commerce (Ramban, Breishis 34:13; cf. Rambam, Hilchos Melachim 9:14). Furthermore, there is a requirement to establish courts in every city and region, to guarantee that people observe their mitzvos (Sanhedrin 56b; Rambam, Hilchos Melachim 9:14).

ARE NON-JEWS REQUIRED TO OBSERVE THE COMMERCIAL LAW OF THE TORAH?

Does the mitzvah of Dinim require non-Jews to establish their own system of law, or is the mitzvah to observe and enforce the Torah’s mitzvos, which we usually refer to as the halachos of Choshen Mishpat?

In a long teshuvah, the Rama (Shu’t #10) contends that this question is disputed by Amora’im in the Gemara. He concludes that non-Jews are required to observe the laws of Choshen Mishpat, just like Jews. Following this approach, a non-Jew may not sue in a civil court that uses any system of law other than that of the Torah. Instead, he must litigate in a beis din or in a court of non-Jewish judges who follow halachic guidelines (see Rambam, Hilchos Melachim 10:11). Therefore, a non-Jew who accepts money on the basis of civil litigation is considered stealing, just like a Jew. The Rama’s opinion is accepted by many early poskim (e.g., Tumim 110:3; Shu’t Chasam Sofer, Choshen Mishpat #91).

However, the Netziv disagrees with the Rama, contending that non-Jews are not obligated to observe the laws of Choshen Mishpat. In his opinion, the Torah requires non-Jews to create their own legal rules and procedures. Although a Jew is forbidden from using the non-Jewish court system and laws, according to the Netziv a non-Jew may use secular courts to resolve his litigation and indeed fulfills a mitzvah when doing so (HaEmek Shaylah #2:3). Other poskim accept the Netziv’s position (Chazon Ish, Bava Kama 10:1). Several major poskim contend that the dispute between the Rama and Netziv is an earlier dispute between the Rambam and Ramban (Shu’t Maharam Schick, Orach Chayim #142; Shu’t Maharsham 4:86; Shu’t Avnei Nezer, Choshen Mishpat #55).

What is a non-Jew to do if he wishes to sue someone? May he litigate in civil court or must he sue in beis din? Because this subject is disputed, we would have to decide whether the rule of safek de’oraysa lechumra (we are strict regarding a doubt concerning a Torah law) applies to a non-Jew. If the non-Jew asks how to proceed in the most mehadrin fashion, we would tell him to take his matter to beis din, because this is permitted (and a mitzvah) according to all opinions.

It should be noted that, according to both opinions, a non-Jew must observe dina demalchusa dina – laws established by civil authorities for the common good. Therefore, he must certainly observe tax codes, traffic laws, building and zoning codes, and regulations against smuggling.

AN INTERESTING SHAYLAH – BRIBING A DISHONEST JUDGE

The Chasam Sofer (6:14) was asked the following shaylah: A non-Jew sued a Jew falsely in a dishonest court. The Jew knew that the non-Jewish judge would rule against him, despite the absence of any evidence. However, bribing the judge may gain a ruling in the Jew’s favor. May he bribe the dishonest judge to rule honestly?

Chasam Sofer rules that it is permitted. The prohibition against bribing a non-Jew is because he is responsible to have an honest court. However, if the result of the bribe will be a legitimate ruling, it is permitted. (Of course, the Jewish litigant must be absolutely certain that he is right.)

OTHER PROHIBITIONS

In addition to the “Seven Mitzvos,” there are other activities that are also prohibited to a non-Jew. According to many opinions, a non-Jew may not graft trees from different species or crossbreed animals (Sanhedrin 56b; Rambam, Hilchos Melachim 10:6; Meiri ad loc.; cf. Shach Yoreh Deah 297:3 and Dagul Mei’re’vavah ad loc.; Chazon Ish, Kelayim 1:1). According to many poskim, a non-Jew may not even own a grafted fruit tree, and a Jew may not sell him such a tree, because that would cause a non-Jew to violate his mitzvah (Shu’t Mahari Asad, Yoreh Deah #350; Shu’t Maharsham 1:179).

Some poskim contend that non-Jews are prohibited from engaging in sorcery (see Kesef Mishneh, Hilchos Avodah Zarah 11:4). According to this opinion, a non-Jew may not use any type of black magic, necromancy or fortune telling. However, most opinions disagree (Radbaz, Hilchos Melachim 10:6).

MAY A NON-JEW OBSERVE MITZVOS?

A non-Jew may not keep Shabbos or a day of rest (without doing melacha) on any day of the week (Sanhedrin 58b). The reason for this is subject to dispute. Rashi explains that a non-Jew is obligated to work every day, because the Torah writes, “Yom Valayla Lo Yishbosu,” which can be interpreted to mean, “Day and night they (i.e., the non-Jews) may not rest.” The Rambam (Hilchos Melachim 10:9), however, explains that a gentile is prohibited from making his own holiday or religious observance, because the Torah is opposed to the creation of man-made religions. In the words of the Rambam, “A non-Jew is not permitted to create his own religion or mitzvah. Either he becomes a righteous convert (a ger tzedek) and accepts the observance of all the mitzvos, or he remains with the laws that he has, without adding or detracting.” A third reason mentioned is that a Jew may mistakenly learn from a gentile who keeps a day of rest, and the Jew may create his own mitzvos (Meiri).

Because of this halacha, a non-Jew studying for conversion must perform a small act of Shabbos desecration every Shabbos. There is a dispute among poskim whether this applies to a non-Jew who has undergone bris milah and is awaiting immersion in a mikvah to complete his conversion (Shu’t Binyan Tzion #91).

POSITIVE MITZVOS

You probably noticed that there are few positive mitzvos among the non-Jew’s commandments. They are required to believe that the mitzvos were commanded by Hashem through Moshe Rabbeinu (Rambam, Hilchos Melachim 8:11). They are also obligated to establish courts. A non-Jew is permitted to observe the mitzvos of the Torah, with a few exceptions (for example, see Rambam, Hilchos Melachim 10:10). He is even permitted to offer korbanos (Zevachim 116b).

STUDYING TORAH

The Gemara states that a non-Jew is not permitted to study Torah (Sanhedrin 59a). One opinion of the Gemara explains that the Torah belongs to the Jewish people, and by studying Torah the gentile is “stealing” Jewish property. However, there are many exceptions to this ruling. First, a gentile may study all the halachos applicable to observing his mitzvos (Meiri). Rambam rules that it is a mitzvah to teach a non-Jew the halachos of offering korbanos, if he intends to bring them (Rambam, Maasei Hakorbanos 19:16). According to the Rama’s opinion that a non-Jew must observe the Torah’s civil laws, the non-Jew may study all the intricate laws of Choshen Mishpat. Furthermore, since a non-Jew is permitted to observe most mitzvos of the Torah, some opinions contend that he may learn the laws of those mitzvos in order to observe them correctly (Meiri, Sanhedrin 58b).

There is a dispute among poskim whether one may teach a non-Jew Torah if the non-Jew is planning to convert. The Meiri (Sanhedrin 58b) and Maharsha (Shabbos 31a s.v. Amar lei mikra) rule that it is permitted, whereas Rabbi Akiva Eiger forbids it (Shu’t #41). Others permit teaching Nevi’im and Kesuvim to non-Jews (Shiltei HaGibborim, Avodah Zarah 20a, quoting Or Zarua), and other poskim permit teaching a non-Jew about miracles that the Jews experienced (Shu’t Melamed Leho’il Yoreh Deah #77).

Incidentally, Rav Moshe Feinstein rules that one is permitted to teach Torah to Jews while a non-Jew is listening (Shu’t Igros Moshe, Yoreh Deah 2:132). For this reason, he permits conducting a Seder with a non-Jew in attendance.

OLAM HABA FOR A NON-JEW

A gentile who observes his mitzvos because Hashem commanded them through Moshe Rabbeinu is called one of the Chassidei Umos HaOlam and merits a place in Olam Haba. Observing these mitzvos carefully does not suffice to make a non-Jew into a Chassid. He must observe his mitzvos as a commandment of Hashem (Rambam, Hilchos Melachim 8:11).

When I was a congregational rabbi, I often met non-Jews who were interested in Judaism. I always presented the option of becoming an observant ben Noach. I vividly recall meeting a woman whose grandfather was Jewish, but who herself was halachically not Jewish. She was keeping kosher – no small feat in her town, where there was no Jewish community. Although she had come to speak about converting, since we do not encourage conversion I explained the halachos of Bnei Noach to her instead.

An even more interesting experience occurred when I was once making a kashrus inspection at an ice cream plant. A worker there asked me where I was from, and then informed me that he used to attend a Reform Temple two blocks from my house! I was surprised, not expecting to find a Jew in the plant. However, it turned out that he was not Jewish at all, but had stopped attending church after rejecting its beliefs. Now, he was concerned, because he had stopped attending the Reform Temple that was far from his house. I discussed with him the religious beliefs and observances of Bnei Noach, explaining that they must be meticulously honest in all their business dealings, just like Jews. I told him that Hashem gave mitzvos to both Jews and non-Jews, and that Judaism is the only major religion that does not claim a monopoly on heaven. Non-Jews, too, merit olam haba if they observe their mitzvos.

Over the years, I have noticed that many churchgoing non-Jews in the United States have rejected the tenets of Christianity. What they have accepted is that Hashem appeared to Moshe and the Jewish people at Sinai and commanded us about His mitzvos. This belief is vital for non-Jews to qualify as Chassidei Umos HaOlam – they must accept that the commandments of Bnei Noach were commanded to Moshe (Rambam, Hilchos Melachim 8:11).

CONCLUSION

As Jews, we do not proselytize to gentiles, nor seek converts. However, when we meet sincere non-Jews, we should direct them correctly in their quest for truth by introducing them to the Seven Mitzvos of Bnei Noach.

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