Category: Parsha Related

How Does a Heter Iska Work?

Andy Gross, a businessman who is proud that he is now observing mitzvos, is on time for his appointment. After a brief greeting, I ask him what brings him to my office on this beautiful morning.

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“I recently learned that even though the Torah prohibits paying or receiving interest, there is something called a heter iska that legalizes it. How can we legitimize something that the Torah expressly prohibits?”

Indeed, Andy’s question is both insightful and important, and deserves a thorough explanation. Why don’t you join us!

I note that this week’s parsha discusses the prohibition of interest:

Do not collect interest from him, for you shall fear Hashem and allow your brother to live. Therefore, do not provide him money with interest (Chapter 25:36-37).

This verse teaches three different mitzvos:

1. Do not collect interest from him. This entails a prohibition on the lender against collecting interest (Bava Metzia 75b).

2. Allow your brother to live. From the words allow your brother to live we derive a positive commandment that one who did collect interest is required to return it (Bava Metzia 62a).

3. Do not provide him money with interest. This prohibits creating a loan that involves interest, even if the lender never collects it (Bava Metzia 62a). A lender who later collects the interest also violates the first prohibition, and if he subsequently does not return it, he violates the positive commandment.

Not only does the lender violate the prohibition against ribbis, but also the borrower, the witnesses, the broker, the co-signer, the scribe who writes up the loan document (Mishnah Bava Metzia 75b), the notary public who notarizes it, and possibly even the attorney who drafts a document that includes provisions for ribbis,all violate the laws of ribbis (Bris Yehudah 1:6). Thus, anyone causing the loan to be either finalized or collected violates the Torah’s law.

“The halachos of ribbis are quite complex,” I told Andy. “From my experience, even seasoned Torah scholars sometimes mistakenly violate the prohibition of ribbis. For example, having a margin account at a Jewish-owned brokerage, charging a Jewish customer for late payment, or borrowing off someone else’s credit line usually entail violations of ribbis. I even know of Torah institutions that ‘borrow’ the use of someone’s credit card in order to meet their payroll, intending to gradually pay back the interest charges.”

“Why does the last case involve ribbis?” inquired an inquisitive Andy.

“Let me present a case where I was involved. A Torah institution was behind on payroll, and had no one available from whom to borrow. The director asked a backer if the institution could borrow money through his bank credit line.”

“I still do not see any ribbis problem here” replied Andy, “just a chesed that costs him nothing.”

“To whom did the bank lend money?” I asked Andy.

“As far as they are concerned, they are lending money to the backer, since it was his credit line.”

“So from whom did the institution borrow? The bank did not lend to them. Doesn’t this mean that really two loans have taken place: one from the bank to Mr. Chesed, and another from him to the institution? The loan from the bank incurs interest charges that Mr. Chesed is obligated to pay. Who is paying those charges?”

“It would only be fair for the institution to pay them,” responded Andy.

“However, if the institution pays those charges, they are in effect paying more money to Mr. Chesed than they borrowed from him, since they are also paying his debt to the bank. This violates ribbis. The fact that the institution pays the bank directly does not mitigate the problem (see Bava Metzia 71b).”

Andy was noticeably stunned. “I have always thought of interest as a prohibition against usury – or taking advantage of a desperate borrower. Here the ‘usurer’ did not even lend any money, and thought he was doing a tremendous chesed for tzedakah; he did not realize that his assistance caused both of them to violate a serious prohibition!”

“What is even more unfortunate,” I continued, “is that one can convert most of these prohibited transactions into a heter iska that is perfectly permitted.

WHAT IS A HETER ISKA?

“A heter iska is a halachically approved way of restructuring a loan or debt so that it becomes an investment instead of a loan. This presumes that the investor assumes some element of risk should the business fail, which is one basic difference between an investment and a loan. An investor could potentially lose money, whereas a lender does not lose because the borrower always remains responsible to pay.

“One is permitted to create a heter iska even when the goal of both parties is only to find a kosher way of creating a transaction that is very similar to an interest- bearing loan (Terumas Ha’deshen #302). The words heter iska mean exactly that: performing an allowable business deal that is similar to a prohibited transaction. As we will see, the structure must still allow for an element of risk and loss as accepted by halacha, otherwise it fails the test of being an investment.

“There are several ways of structuring a heter iska, and, indeed, different situations may call for different types of heter iska. In order to explain how a basic heter iska operates, I must first explain an investment that involve no ribbis, so that we can understand how a heter iska was developed. For the balance of this article, we will no longer refer to “borrowers” and “lenders.” Instead, I will refer to a “managing partner” or “manager” and an “investor.”

Andy interrupts my monologue. “Was heter iska used in earlier generations?”

THE EARLIEST HETER ISKA

“The concept of heter iska is many hundreds of years old. The earliest heter iska of which I am aware is suggested by the Terumas Ha’deshen (1390-1460). His case involves Reuven, who wishes to invest in interest-bearing loans to gentile customers, but does not want to take any risk. Shimon, who is an experienced broker of such loans, is willing to take the risk in return for some of the profit on Reuven’s money.

“Reuven wants a guarantee that he will receive back all his capital regardless of what actually happens in the business venture. Essentially, this means that Shimon is borrowing money from Reuven and lending it to gentiles; this would result in a straightforward Torah prohibition of ribbis, since Shimon is paying Reuven a return on the loan. Is there any way that Reuven and Shimon can structure the deal without violating the Torah’s prohibitions against paying and receiving interest?”

At this point, Andy exclaims: “Either this is a loan, and Reuven’s money is protected, or it is an investment, and it is not. How can Reuven have his cake and eat it too!”

“Actually, all the attempts at creating heter iska are attempts to find a balance whereby the investor is fairly secure that his assets are safe, and yet can generate profit. In your words, to try to have his cake and eat it.

PIKADON – INVESTING

“Let me explain how a heter iska accomplishes both these goals, by developing a case: Mr. Sweat has a business idea, but he lacks the capital to implement it. He approaches Mr. Bucks for investment capital. If Bucks has sufficient confidence in Sweat’s acumen to build a business, he might decide to invest even without knowing any details about it, since Sweat knows how to provide handsome profits. None of this involves any ribbis issues since there is no loan and no one is paying to use the other person’s capital. This business venture is called a pikadon.

GUARANTEEING THE INVESTMENT

“Your model is highly theoretical,” Andy points out, “since it assumes that Mr. Bucks invests without much assurance. Few people I know would entrust someone with their money without some type of guarantee.”

“You have hit on a key point – let us see how halacha deals with this. Whenever an investor entrusts someone with funds, the Torah permits him to demand an oath afterwards that the manager was not negligent. Therefore, Bucks may insist that Sweat swears an oath that he was not negligent with the money, and also that he reported accurately how much profit Bucks receives. An agreement may even require that Sweat swears this oath by using G-d’s name and while holding a Sefer Torah in front of the entire congregation.”

“That should certainly get Sweat to sweat,” quipped Andy. “But then again, assuming Mr. Sweat is a frum Jew, is he going to want to swear any oath at all?”

“That is exactly the point that secures Bucks’ bucks, since observant people would pay a substantial sum of money to avoid swearing an oath. The heter iska specifies that the manager has the option of swearing the oath and paying only what the investor is entitled. However, the manager also has the option of substituting an agreed-upon payment for the oath. Since observant Jews would rather pay the fixed return rather than swear an oath, we accomplish that the investor is reasonably secure, although no loan and no ribbis transpired. The result is not a loan, but a cleverly structured investment.”

After waiting a few seconds and absorbing what he just learned, Andy continued:

“Is there anything else I need to know about a heter iska before I use one?”

“I need to explain one other very important detail that, unfortunately, people often overlook. Most forms of heter iska state that the investor paid the manager a specific sum of money, say one dollar, for his time involved in the business venture. It is vitally important that this dollar be actually paid; otherwise there is a ribbis prohibition involved. Yet I know that many people overlook this requirement and do not understand its importance.”

“Why is this important?”

STANDARD ISKA – A SILENT PARTNERSHIP

“The standard heter iska assumes that the arrangement is half loan and half pikadon. This means that if Mr. Bucks invests $100,000 with Mr. Sweat to open a business, Mr. Bucks and Mr. Sweat become partners in the business because half of the amount is a $50,000 loan that Mr. Sweat must eventually repay, and the other half is a $50,000 outlay that Mr. Bucks has invested in a business that Mr. Sweat owns or intends to open. Bucks may receive no profit on the $50,000 loan he extended — if he does, it is prohibited ribbis. However, he may receive as much profit on the investment part of the portfolio as is generated by half the business. As a result, Mr. Bucks and Mr. Sweat are both 50% partners in the business.

RECEIVING PROFIT FROM THE LOAN

“However, there is an interesting problem that we must resolve. Bucks invested a sum with Sweat, for which he received a profit, and he also loaned Sweat money, for which he may not receive any profit. However, the return on the investment was realized only because Mr. Sweat is investing his know-how and labor to generate profit for the partnership – know-how and labor for which Bucks did not pay. Why is this not payment for Mr. Bucks’ loan, and therefore ribbis?

“This concern is raised by the Gemara, which presents two methods to resolve the problem.

“One approach is that the investor pays the manager a certain amount for his expertise and effort. As long as both parties agree in advance, we are unconcerned how little (or much) this amount is (Bava Metzia 68b). However, there must be an amount, and it must actually be paid. Even if they agree to a sum as paltry as one dollar, this is an acceptable arrangement, similar to Michael Bloomberg’s accepting one dollar as salary to be mayor of New York.”

“I now understand,” interjected Andy, “why it is so important that this amount be actually paid. If Mr. Sweat receives no compensation for his hard work on behalf of Mr. Bucks’ investment, it demonstrates that he was working because he received a loan, which is prohibited ribbis.”

“Precisely. However, there is another way to structure the heter iska to avoid the problem; have the profit and loss percentages vary. This means that if the business profits, the managing partner makes a larger part of the profit than he loses if there is a loss. For example, our silent and managing partners divide the profits evenly, but in case of loss, our manager is responsible to pay only 30% of the loss, which means that he owns only 30% of the business. The extra 20% of the profits he receives is his salary for managing the business. He is therefore being paid a percentage of Bucks’ profits for his efforts, similar to the way a money manager or financial consultant is often compensated by receiving a percentage of the profits on the funds he manages. Personally, I prefer this type of heter iska, but the type I described previously is perfectly acceptable as long as Mr. Sweat receives some compensation for his effort and know-how.

“The heter iska I have seen used by the Jewish owned banks in Israel includes this method. The bank invests 45% in a “business” managed by the mortgage borrower, but the borrower is entitled to 50% of the profits. Thus, he is ‘paid’ five per cent of the profits to manage the investment.”

“Can you explain to me how the Terumas Ha’deshen’s money lender would use a heter iska?” inquired Andy.

“Actually, his heter iska varied slightly from what we use today. Using today’s accepted heter iska, Shimon, the manager, accepts the money with the understanding that he is borrowing part and managing the balance for Reuven. He is compensated for his efforts according to one of the approaches mentioned above, and agrees in advance to divide the profits. He also agrees that he will swear an oath guaranteeing that he was not negligent in his responsibilities, and the two parties agree that if he subsequently chooses to pay Reuven a certain amount he is absolved of swearing the oath. Thus, Reuven’s return is not interest on a loan, but the amount Shimon had agreed to pay rather than swear how much he actually owes Reuven.

“This approach has been accepted by thousands of halachic authorities as a valid method of receiving a return on one’s investment that looks like interest but is not. The Chofetz Chayim notes that if someone can lend money without compensation, he should certainly do so and not utilize a heter iska, because he is performing chesed (Ahavas Chesed 2:15). Heter iska is meant for investment situations, and should ideally be limited to them.

“I would like to close by sharing with you a thought from Rav Samson Raphael Hirsch about the reason why the Torah prohibited interest. He notes that if the Torah considered charging interest to be inherently immoral, it would have banned charging interest from non-Jews, and also would have prohibited only the lender and not the borrower. Rather, Rav Hirsch notes, the Torah’s prohibition is so that the capital we receive from Hashem is used for tzedakah and loans, thereby building and maintaining a Torah community. The Torah’s goal in banning the use of capital for interest-paying loans is to direct excess funds to chesed and tzedakah.”

Bedeviled by Stirring Events

Some Insights on the Melacha of Losh

I was recently asked the following question:

“My daughter was taught that we cannot make deviled eggs on Shabbos because adding mustard and shaping them is considered ‘kneading’ the yolks. But I remember my mother always mixed hard boiled eggs with minced onion and oil on Shabbos morning shortly before the meal. Could my mother have been wrong?”

As our readership is aware, the Torah prohibits melachos on Shabbos not because they are taxing, but because these activities are significant and important (Bava Kamma 2a). As the Yerushalmi relates, after toiling for three and a half years to understand all the prohibited activities of Shabbos, Rabbi Yochanan and his brother-in-law, Reish Lakish, concluded that each of the 39 major melachos (avos) has at least 39 sub-categories, tolados, which are also prohibited min haTorah (Yerushalmi, Shabbos, beginning of 7:2). As is clear from the passage, these eminent scholars realized that the Torah prohibited these types of significant activity. As Rav Shamshon Raphael Hirsch notes, the Torah does not prohibit avodah, which connotes hard work, but melacha, which implies purpose and accomplishment (Commentary to Shemos 20:10).

One of the melacha activities prohibited on Shabbos is losh, kneading (Mishnah Shabbos 73a). Although building the Mishkan did not involve kneading dough, dying the cloth used in its construction required kneading a thick paste (see Rashi, Shabbos 73a and Shabbos 156a). (Some Rishonim contend that we derive forbidden melachos also from activities performed for the service of the Mishkan and the Beis HaMikdash, and not only from the Mishkan’s construction. According to these opinions, the melacha of kneading could be derived from the meal offerings of the Mishkan that involved the kneading of dough [Rav Hai Gaon, quoted in introduction to Maasei Rokei’ach and by Eglei Tal].)

WHAT IS LOSH?

The concept of losh is to combine fine powders or similar small items into a unit by adding liquid (Shevisas Hashabbas). Thus, mixing clay for pottery, or cement and sand into concrete, violates the Torah prohibition of losh (see Rambam, Hilchos Shabbos 8:16; Rashi, Shabbos 74b). Similarly, mixing oatmeal or reconstituting instant mashed potatoes violates the Torah prohibition of losh (in addition to whatever prohibitions of cooking may be involved).

Similarly, preparing certain other food items might fall under the rubric of losh. For example, the Gemara discusses whether one may mix bran with water to feed one’s animals. Although bran and water do not form dough, this question is discussed because adding water makes the bran stick together (Shabbos 155b).

The Tanna’im dispute whether one may add water to bran on Shabbos to feed one’s animals, Rebbe prohibiting because he feels that this constitutes a Torah violation of losh, whereas Rabbi Yosi ben Rabbi Yehudah maintains that adding water to bran involves only a rabbinic prohibition and is permitted in order to feed one’s animals, if performed in an indirect way. This introduces a new concept in the laws of losh – that one may perform a rabbinically prohibited activity in an indirect way, in order to prepare food or feed on Shabbos (Shabbos 155b-156a). Performing a prohibited activity in an indirect way is called a shinui or kil’achar yad (literally, using the back of one’s hand), and is usually prohibited miderabbanan. However, under extenuating circumstances, Chazal relaxed the prohibition.

Losh applies only when mixing fine items that stick together to form a unit. It does not apply when adding liquid to large items even if they stick together, since they do not combine into one item (Taz, Orach Chayim 321:12). Therefore, one may use oil or mayonnaise to make a potato salad or tuna salad on Shabbos, if the pieces of potato or tuna are large enough to prevent the salad appearing like a single mass.

BATTER VERSUS DOUGH

The Gemara implies that there is a halachic difference between a belilah rakkah, the consistency of batter, and belilah avah, the consistency of dough. By “batter” we mean a mix that does hold together, so it is not a liquid, yet is fluid enough that one can pour it from one bowl to another (Chazon Ish, Orach Chayim 58:9). Creating a batter involves only a rabbinic violation, whereas mixing a consistency like dough, which is thick enough that one cannot pour it, has stricter rules, often involving a Torah violation.

If the mix does not hold together at all, then one may make such a mixture without any concerns because it is considered a liquid (Chazon Ish, Orach Chayim 58:9).

DEVILING THE EGGS

Based on the above discussion, it would appear that one may not mix egg salad or deviled eggs on Shabbos without a shinui, and possibly not even with a shinui. The mix created when making these foods cannot be poured, and therefore does not qualify as a “batter” but as “dough,” which may entail a Torah prohibition of mixing on Shabbos. Ordinarily, food preparation on Shabbos that involves a Torah prohibition is not permitted, even with a shinui.

However, a standard appetizer in many parts of Europe for the Shabbos day meal was to chop up and stir together hard-boiled eggs, onion and schmaltz, a dish called zwiebel eire or “eggs and onions” that required preparation immediately before serving. Was it permitted to mix “eggs and onions” on Shabbos or did this violate the prohibition against kneading on Shabbos, since the finished product was mashed egg and onion held together with fat? Although it would seem to be prohibited to prepare this food on Shabbos, this food was commonly prepared every Shabbos morning prior to serving. Does this mean that all these observant Jews were violating the Torah’s command? When we consider that this was the standard appetizer eaten by thousands of Jewish households every Shabbos for hundreds of years, it is difficult to imagine that millions of eggs and onions were prepared in violation of the laws of Shabbos!

Several halachic authorities raise this question, providing a variety of approaches to explain why one may blend eggs and onions on Shabbos. Could the reason to allow it apply to contemporary deviled eggs or egg salad?

Some contend that this was permitted only when the pieces of egg and onion were both large enough to prevent the mix from having a dough-like consistency, but rather looked more like large pieces stuck together. However, the prevalent approach was to chop the eggs and onions into a very fine consistency, in which case the above-mentioned leniency was not applicable.

Other authorities permitted mixing and stirring them together only with a shinui, although apparently the prevalent custom was to mix it without any shinui at all.

RAV SHELOMOH KLUGER’S APPROACH

Rav Shelomoh Kluger, a great luminary of nineteenth-century Poland, proposed a highly original reasoning to legitimize the preparing of the eggs and onions on Shabbos. Regarding various halachos of the Torah, predominantly the laws of tumah and taharah, only seven substances are considered liquids — wine, blood, olive oil, milk, dew, honey and water. Rav Kluger contended that the halachos of losh are also dependent on the use of one of these seven liquids to create the “dough” (Shu”t Ha’elef Lecha Shelomoh, Orach Chayim #139). According to this novel approach, no losh prohibition is involved if one uses mayonnaise or any oil other than olive oil, nor if one makes dough on Shabbos using only juice other than grape juice.

We should note that following this line of reasoning, not only may one prepare the famous eggs and onions mixture, but one may also prepare deviled eggs or egg salad on Shabbos, provided one does not use olive oil as the liquid. Although some may prefer use of olive oil for its cholesterol and other medical benefits, this would not justify violating the laws of Shabbos.

However, Rav Kluger’s approach is not without its detractors. For one thing, as he himself points out, his approach disputes the statement of a highly-respected earlier authority, the Pri Megadim (Mishbetzos Zahav 321:12), who contends that losh is violated when one mixes foods together with goose schmaltz (in his era, a common ingredient in European homes). This demonstrates clearly that any substance that causes items to stick together violates losh, at least according to some widely-accepted opinions. For the most part, later authorities have not accepted Rav Kluger’s contention limiting losh to the “seven liquids.”

Rav Shelomoh Kluger applied a second reason to permit the preparation of eggs and onions on Shabbos. He theorized that losh only applies to the earth itself or to items that grow from the ground — thus precluding eggs from the prohibition of losh. Although this approach only resolves the losh consideration germane to the eggs in the mixture but not to the onions, Rav Kluger further contended that the onions are also exempt from losh since the eggs are the main ingredient. He maintained that when mixing several items, of which losh applies only to some, halacha considers only the major ingredient and ignores the rest (Shu”t Ha’elef Lecha Shelomoh, Orach Chayim #139).

This second approach of Rav Shelomoh Kluger is also not without its detractors. Both the contention that losh applies only to items that grow from the ground, and the further supposition that one ignores the lesser item are challenged by later authorities (see Tzitz Eliezer 11:36:3, quoting Yad Yosef).

OTHER APPROACHES

Other reasons are quoted to permit making eggs and onions on Shabbos, including a suggestion that there is no losh prohibition to stir in an ingredient added for taste, even if it indeed causes the food to hold together. (This position is quoted by the Tzitz Eliezer 11:36 in the name of an anonymous great scholar; however, the Tzitz Eliezer rejects this argument.) According to this approach, one might argue that one may make deviled eggs on Shabbos since the mustard is primarily added for flavor. On the other hand, one could argue that one’s intent is to create a consistent filling, which is losh.

Others permit the mixing of eggs and onions because they do not form into a gush, that is, a single unit (Shu”t Be’er Moshe 6:44). According to this reasoning, deviling eggs is forbidden since one is indeed forming units of seasoned mashed egg yolk.

RAV SHELOMOH ZALMAN AUERBACH’S APPROACH

Rav Shelomoh Zalman Auerbach presents a different reason to permit mixing eggs and onions on Shabbos, which requires a small introduction. At the time of the Gemara, neither Post nor General Mills had yet cornered the market on breakfast cereal, and people were forced to prepare their own breakfast. The Cheerios of the day involved mixing a specialty flour called kali, made from toasted kernels, with oil, water and salt. The Gemara quotes an opinion that permits mixing kali on Shabbos, provided one uses a minor shinui while doing so (Shabbos 155b). Several authorities question why the Gemara is so lenient in this instance (Nishmas Adam; Biur Halacha). Allow me to explain the basis of their concern:

Usually, a shinui may be used on Shabbos in only one of two circumstances:

1. To prepare food that, without the shinui, involves only a rabbinic prohibition.

2. To prepare the food in a radically different way from how it is usually prepared. An example of this is crushing foods on Shabbos with the handle of a knife. Although it is prohibited min haTorah to chop items fine on Shabbos, since crushing with a knife handle is a very different method from mashing or grinding with mortar and pestle, Chazal permitted it (Shibbolei Ha’leket #92, based on Shabbos 141a).

Thus, we are faced with the following anomaly: The Gemara permits mixing kali on Shabbos, seemingly permitting a Torah prohibition of losh by means of a minor deviation from the normal method, which is usually not a sufficient reason to be allow it.

The Biur Halacha  (321:14 s.v. Shema) responds to this question with two different novel approaches to explain why this is permitted:

1. Mixing food that is already cooked or toasted, and therefore ready to eat, does not violate the prohibition of losh. Chazal prohibited doing so because it looks like kneading, and therefore it is permitted with a shinui, as are many other food preparations.

2. The Biur Halacha suggests an alternative approach: there is no violation of losh while one is eating. This is similar to a concept found by other melachos, notably selecting and grinding, that permits performing these activities immediately before consuming them. As such, preparing kali at breakfast time would be permitted.

This approach has its detractors, since no early authorities note that this lenience applies to losh, and logically there is a big distinction between selecting and grinding, which are processes that are absolutely essential to normal eating, and kneading, which is not essential (see Magen Avraham 321:24).

RETURNING TO EGGS AND ONIONS

Based on both approaches of the Biur Halacha, Rav Shelomoh Zalman Auerbach notes that preparing eggs and onions should be permitted because this food cannot be prepared before Shabbos, and becomes ruined if not prepared shortly before eating. A similar approach to explain the custom of mixing eggs and onions is presented by the Tehillah Le’David (321:25).

In addition, Rav Shelomoh Zalman Auerbach reasons that losh is a process that one does while eating, since one mixes food together in one’s mouth (Shulchan Shelomoh 321:16). This author does not understand the last statement of Rav Shelomoh Zalman Auerbach, since the processing of food that takes place in one’s mouth, chewing, reduces food to small particles and does not combine small particles into larger ones, which is the essence of losh.

According to Rav Shelomoh Zalman Auerbach’s approach, preparing eggs and onions requires a shinui, meaning that one should add the ingredients to the bowl in an inverted order than one usually does, and should also preferably stir the mix in an unusual fashion, such as not in normal circular strokes but with alternative crisscross motions instead.

However, the approaches mentioned earlier permit mixing eggs and onions without any shinui at all. When reading later halachic works, one finds many poskim who feel that one should avoid preparing eggs and onions on Shabbos, and certainly not without a shinui, whereas others are suspicious of those who question such a time-hallowed practice (Be’er Moshe; Tzitz Eliezer).

We should also note that the first approach presented by the Biur Halacha should permit not only the famous eggs and onions, but also preparing either egg salad or deviled eggs on Shabbos. Furthermore, according to his second approach, it is permitted to prepare them immediately before the meal, even though the egg salad or deviled eggs will not be served until much later in the meal, similar to the rules of boreir. Both of the Biur Halacha’s heterim require using a shinui while mixing the ingredients, i.e., by adding ingredients in a different order than usual and by not using the usual circular motions while stirring.

The Torah commanded us concerning the halachos of Shabbos by giving us the basic categories that are prohibited. Shabbos is a day that we refrain from altering the world for our own purposes. Instead, we allow Hashem’s rule to be the focus of creation by refraining from our own creative acts (Rav Shamshon Raphael Hirsch’s Commentary to Shemos 20:10). By demonstrating Hashem’s rule even over non-exertive activities such as kneading, we demonstrate and acknowledge the true Creator of the world and all it contains.

Between Yishtabach and Borchu

Since Az Yashir, which concludes pesukei dezimra, is in parshas Beshalach, this article about the conclusion of Pesukei Dezimra is most appropriate.

Question #1: Between Yishtabach and Kaddish

Avraham asks: “In the shullen in which I used to daven, during the aseres yemei teshuvah we always recited the chapter of tehillim, ‘Shir hama’alos mima’amakim,’right after Yishtabach. Someone recently told me that the reason why I do not see this custom practiced any more is because it is a hefsek in the davening. Is this true?”

Question #2: Between Kaddish and Borchu

Yitzchak queries: “Because of my work schedule, I must daven at a very early minyan. At times, we begin davening when it is too early to put on talis and tefillin, so we put on talis and tefillin after Yishtabach. Someone told me that when we do this, we are creating a problem with reciting Kaddish after Yishtabach. Is this true? And if it is true, what should we do?”

Question #3: Between Borchu and Yotzeir

Yaakov inquires: “If I need to use the facilities during davening, may I recite the beracha of Asher Yatzar after answering Borchu, provided I have not yet begun to say the beracha of Yotzeir Or?”

Introduction: Pesukei Dezimra, Yishtabach and Borchu

All of the above questions deal with the same general issue: What are the laws about making an interruption, a hefsek, between completing the recital of Yishtabach and prior to reciting Birchos Kerias Shema, the blessings that are recited before and after the shema, which begin with the beracha of Yotzeir Or. Let me begin by explaining the reason why we recite Yishtabach in our davening.

The Mishnah recommends contemplation as an introduction to praying (Berachos 30b). This experience is reflected when we recite or sing the Pesukei Dezimra, literally, Verses of Song¸ prior to Borchu and Birchos Kerias Shema. To show how important this aspect of serving Hashem is, we find that the great tanna, Rabbi Yosi, yearned to receive the special reward granted to those who recite the Pesukei Dezimra daily (Shabbos 118b). Reciting Pesukei Dezimra properly helps elevate one’s entire tefillah to a completely different level. This has the potential to cause our prayer to soar!

Chazal established that we say two berachos, Baruch She’amar and Yishtabach, one before and one after Pesukei Dezimra. Baruch She’amar notes that we use the songs of David to praise Hashem. Since these two berachos are part of the Pesukei Dezimra introduction to our prayer, one may not converse from when he begins Baruch She’amar until after he completes the Shemoneh Esrei (Rif, Berachos 23a). This prohibition includes not interrupting between Yishtabach and the beracha of Yotzeir Or (Rabbeinu Yonah, ad locum, quoting a midrash).

The Tur (Orach Chayim 51), after citing this ruling, quotes the Talmud Yerushalmi that one who talks between Yishtabach and Yotzeir Or commits a sin serious enough that he loses the privilege of joining the Jewish army when it goes to war. According to halachah, prior to the Jewish army going into battle, a specially appointed kohen announces those who are exempt from warfare, which includes, according to this opinion, those who are concerned that their sins may cause them to become war casualties. The Jewish army is meant to be comprised of tzaddikim gemurim, the completely righteous, so that their merits will protect them on the battlefield. Those who are less righteous have no such guarantee, and the Torah therefore exempts them from fighting. Someone whose greatest sin is that he once spoke between Yishtabach and Yotzeir Or, and for which he has not performed full teshuvah, is too sinful a person to be allowed to serve in the Jewish army, out of concern that he might become a casualty.

Interrupting between Yishtabach and Borchu

As I mentioned above, the questions introducing this article all deal with the laws of interrupting between Yishtabach and the beginning of Birchos Kerias Shema. The details of these halachos are not discussed in the Gemara, and, therefore, in order to establish what are the rules related to them, the halachic authorities needed to compare these laws to those of Birchos Kerias Shema, which are discussed in the Gemara.

In general, it is prohibited to interrupt during Birchos Kerias Shema, although the Gemara mentions a few exceptions, including, at times, responding to a person’s greetings, so as not to offend him. The Rishonim dispute whether one may respond to Borchu, Kedusha, and Amen yehei shemei rabbah (in Kaddish) during Birchos Kerias Shema — the Maharam Rotenberg prohibited it, whereas his disciple, the Rosh, permitted it (Rosh, Berachos 2:5). The Maharam Rotenberg contended that these responses are prohibited during Birchos Kerias Shema because it is inappropriate to interrupt praise of Hashem in order to recite a different praise, even something as important as responding to Kaddish or Kedusha. The Rosh permitted this interruption because he held that responding appropriately to Hashem’s praises should not be treated more strictly than responding to the greeting of a person, which is permitted under certain circumstances.

The poskim follow the opinion of the Rosh, concluding that one may answer the following responses while reciting Birchos Kerias Shema:

(1) Kaddish: One may answer “Amen, yehei shemei rabbah mevorach le’olam ule’almei almaya,” and one may also answer “Amen” to the Chazzan’s da’amiran be’alma (at the point that we end what is called chatzi-Kaddish). However, one may not respond to the other places in Kaddish (Chayei Adam 20:4).

(2) Borchu: One may answer “Boruch Hashem hamevorach la’olam va’ed.”This is true whether it is the Borchu that the chazzan recites before Birchos Kerias Shema morning and evening, or whether it is the Borchu that the person receiving an aliyah recites prior to the Torah reading of his aliyah (Magen Avraham 66:6).

(3) Kedusha: One may respond “Kodosh kodosh…”and “Boruch kevod Hashem mimkomo” in Kedusha, but one may not respond to the other parts of Kedusha we traditionally say, even the sentence beginning Yimloch (Ateres Zekeinim).

(4) Amen to berachos: One may respond “Amen” to the berachos of Ha’Keil Hakadosh and Shema Koleinu (Rema 66:3), but not to other berachos.

Thundering applause

The poskim also dispute whether one should recite the berachos on lightning or thunder while in the middle of Birchos Kerias Shema. The Magen Avraham (66:5) rules that one should, whereas the Bechor Shor (Berachos 13a) disagrees, contending that one should not interrupt one praise of Hashem with another. The Chayei Adam reaches a compromise, ruling that one should recite the beracha on lightning or thunder if he is between the berachos of Kerias Shema, but not when he is in the middle of reciting one of the berachos. The dispute between the Magen Avraham and the Bechor Shor remains unresolved (Mishnah Berurah 66:19), and, therefore, someone who hears thunder while in the middle of Birchos Kerias Shema may choose whether to recite the beracha or not.

Between Yishtabach and Borchu

Now that we understand the accepted halachah concerning interrupting Birchos Kerias Shema, we can discuss the laws that apply between Yishtabach and Borchu. We should note that the interval between the completion of Yishtabach and the beginning of Yotzeir Or can be subdivided into three points:

(A) Between Yishtabach and Kaddish.

(B) Between Kaddish and Borchu.

(C) Between Borchu and beginning the beracha of Yotzeir Or.

Although one might think that Birchos Kerias Shema do not start until one begins reciting the words of the beracha, the early authorities rule that once one has said or responded to Borchu it is considered that he is already in Birchos Kerias Shema (Sefer Haminhag, quoted by Beis Yosef, Orach Chayim 57; Rema 54:3). Thus, one may not interrupt once one has recited Borchu, except for the list of four items mentioned above.

What interruptions are permitted?

Notwithstanding the fact that it is prohibited to speak between Yishtabach and Borchu, interrupting at this point is less severe than between Baruch She’amar and Yishtabach or during Birchos Kerias Shema. Therefore, under certain circumstances, some interruptions are permitted. For example, if one needs to recite a beracha, it is better to do so after completing Yishtabach before answering (or saying) Borchu than during the Pesukei Dezimra. For this reason, someone who did not have tzitzis or tefillin available before davening, and they become available during Pesukei Dezimra, should put them on immediately after Yishtabach and recite the berachos on them.

The authorities discuss several other instances of interruptions and whether they are permitted between Yishtabach and Borchu, even though none of these interruptions is permitted during Birchos Kerias Shema. All of the permitted interruptions qualify either as tzorchei mitzvah, mitzvah requirements, or community needs. To quote the Tur (Orach Chayim 54): “One may not interrupt between Yishtabach and Yotzeir if it is not for community needs or for someone who needs to be supported from charity.” Thus, the Tur rules that, even though it is prohibited to talk after Yishtabach, one is permitted to make an appeal for charity at this point. Although, as we will soon see, this position is not universally agreed upon, there were other early authorities who held this way (Rav AmramGaon, quoted by Tur; Beis Yosef quoting Kolbo #4).  The Shulchan Aruch (Orach Chayim 54:3) quotes this opinion, although he considers it to be a minority view (see also Hagahos Maimoniyos 7:70). In many places, it was customary to extend this leniency to include requesting personal assistance for other needs, as we will see shortly.

It is certainly permitted to recite the beracha upon hearing thunder between Yishtabach and Yotzeir, and most authorities permit one to recite Asher Yatzar at this point (Mishnah Berurah 51:8; however, see Chayei Adam [20:3], who prefers that one not recite Asher Yatzar until after Shemoneh Esrei).

At this point, we can answer one of the questions we raised at the beginning of this article: “If I need to use the facilities during davening, may I recite the beracha of Asher Yatzar after answering Borchu, provided I have not begun to say the beracha of Yotzeir Or?”

The answer is that one may recite Asher Yatzar before answering Borchu, but if one has already answered Borchu, he should wait until after Shemoneh Esrei before reciting it.

Before Kaddish or after?

In a situation when one may interrupt after Yishtabach, is it better to interrupt before reciting Kaddish, or after Kaddish and before Borchu? This exact question is discussed at length by the Darchei Moshe, the Rema’s commentary on the Tur (Darchei Moshe, Orach Chayim 54:1):

“The custom is to make a mishebeirach for the ill between Yishtabach and Yotzeir; and occasionally, someone cries out [at this point in the davening to call attention to the need] to bring someone to justice, and these are considered mitzvah needs. (The Rema codifies this last practice in his comments to Shulchan Aruch, Orach Chayim 54:3.) However, I do not understand why the custom is to do so before Kaddish, and then after the interruption to recite Kaddish. Since this Kaddish refers back to Pesukei Dezimra, as I will explain in Chapter 55, we should not interrupt before it. Furthermore, one following this practice no longer has a basis to recite Kaddish afterwards, since it now no longer concludes the Pesukei Dezimra.” The Rema then quotes the Kolbo (6), who says that if one did, indeed, interrupt between Yishtabach and Kaddish, then one should say Borchu without Kaddish. The Kolbo suggests another option for someone who interrupted after Yishtabach — he should recite three or more pesukim of tehillim and then say Kaddish.

On the basis of this Kolbo, the Rema, with the agreement of other talmidei chachamim, changed the practice in his city and made a mishebeirach after Kaddish. However, he subsequently retracted this decision, because he found a more authoritative source that followed the original practice of interrupting before Kaddish rather than afterwards. The Or Zarua quoted a teshuvas ha’geonim that someone who began davening without a talis should stop after Yishtabach, recite the beracha, and put on the talis. However, if the community had already begun Kaddish, he should not recite the beracha. Thus, we see that if one needs to interrupt at this point in the davening, it is better to do so before Kaddish than afterwards. The Rema continues that this position is in line with the kabbalistic works that hold that one should not interrupt between Kaddish and Borchu. (By the way, the Rema himself was heavily steeped in Kabbalah, and authored a work on the topic.)

The Rema then concludes that it is best to avoid any interruption at all, and he cites that, in Prague, they had stopped all interruptions after Yishtabach. In a place where the custom is to interrupt, the Rema concludes that the best procedure is to interrupt after Yishtabach and before Kaddish. However, the chazzan should not interrupt between Yishtabach and Kaddish (Darchei Moshe, Orach Chayim 54:1; Rema, Orach Chayim 54:3).

At this point we can now answer Yitzchak’s question that we mentioned above:

“Because of my work schedule, I must daven at a very early minyan. At times, we begin davening when it is too early to put on talis and tefillin, so we put on talis and tefillin after Yishtabach. Someone told me that when we do this, we are creating a problem with reciting Kaddish. Is this true? And if it is true, what should we do?

The Rema concludes that everyone else should put on talis and tefillin after Yishtabach but the chazzan should put on talis and tefillin before Yishtabach so as not to interrupt between Yishtabach and Kaddish.

Kaddish before Musaf

There is a very interesting side point that results from this above-quoted Rema:

In a place where the rabbi delivers a sermon prior to Musaf, the custom is to do so before Kaddish. Is there any problem with reciting Kaddish before Musaf, although there is now a huge interruption between the recital of Ashrei and the Kaddish?

Whether the chazzan may immediately recite Kaddish should depend on the above-cited dispute between rishonim. Just as the Kolbo ruled that the chazzan may not recite Kaddish once he interrupted, unless he recites a few verses prior to saying Kaddish, here too, he would be required to recite a few verses prior to reciting Kaddish. According to the Or Zarua, an interruption after the recital of the verses of Ashrei does not pose any problem with saying Kaddish afterward.

Az Yashir after Yishtabach?!

Prior to addressing the final remaining question, we need to discuss a curiosity. The last Biblical passage cited as part of Pesukei Dezimra is Az Yashir, the Shiras Hayam that the Jewish people sang as praise to Hashem, after witnessing the miracles at the crossing of the Red Sea, the Yam Suf. The Tur (51) and the Avudraham explain that this passage is included immediately before Yishtabach because it contains fifteen mentions of Hashem’s holy Name, thus corresponding to the fifteen praises of Hashem that are stated in Yishtabach.

Others cite a different, but similar, idea: We complete Pesukei Dezimra with Shiras Hayam because the four-lettered name of Hashem is mentioned eighteen times between the words Vayehi Be’ashmores (that precede Az Yashir in the Torah) until the end of the Shiras Hayam. This adds up to a total of 72 lettersof Hashem’s name and, thereby, represents a very high level of kedusha (Beis Yosef, 51, explaining Orchos Chayim; he also explains why we begin from Az Yashir and not from Vayehi Be’ashmores).

By the way, these two allusions are not conflicting, but complementary. One explains Az Yashir as the introduction to Yishtabach, and the other makes it a representative of the entire Pesukei Dezimra that serves as an introduction to the Shemoneh Esrei.

Notwithstanding the fact that it is now standard practice to include Az Yashir, the earliest versions of Pesukei Dezimra did not include any recital of Az Yashir, and others recited it after Yishtabach. For example, the Rambam’s Seder Hatefillos (located at the end of Sefer Ahavah in his Yad Hachazakah) places Az Yashir after the recital of Yishtabach.

With this introduction, we can now address the question asked above:

“In the shullen in which I used to daven, during the aseres yemei teshuvah we always recited the chapter of tehillim ‘Shir hama’alos mima’amakim’ right after Yishtabach. Someone recently told me that the reason why I do not see this custom practiced any more is because it is a hefsek in the davening. Is this true?”

Here is the background: The Magen Avraham (54:2) quotes the Arizalthat during the aseres yemei teshuvah one should add Shir hama’alos mima’amakim after Yishtabach. The Magen Avraham then asks why this is not considered a hefsek. In response to this concern, the Dagul Meirevavah notes the Rambam’s placement of Az Yashir after Yishtabach; thus, it is curious to understand what was bothering the Magen Avraham. (One could also mention the Tur and others, who noted the custom of making charity and other communal appeals after Yishtabach, as proof that reciting Shir hama’alos should not be considered an interruption.)

Presumably, the Magen Avraham feels that adding Az Yashir is not a hefsek, since this is a praise of Hashem, which is the same theme as the entire Pesukei Dezimra. We may, therefore, add other praises to Pesukei Dezimra. However, Shir hama’alos is being added as a supplication, and the Magen Avraham considers this to be an interruption. And, although the Tur and the Rema mention a custom of interrupting for communal or mitzvah needs, today the prevalent practice is to not interrupt, as the Rema himself preferred. We could then conclude that although one may add quotations and passages from Tanach that praise Hashem both to the Pesukei Dezimra and immediately afterwards, one should not add passages that are being used as supplication, and that this is the reason why some did not observe the practice of reciting Shir hama’alos mima’amakim after Yishtabach. However, those who do maintain this practice are following the custom of the Arizal, and should continue to do so.

Conclusion

The Ramban (Commentary to Shemos 13:16) explains: “All that Hashem desires from this world is that Man should thank Him for creating him, focus on His praise when he prays, and that the community pray together with concentration. Mankind should gather together and thank the Lord who created them, announcing: We are your creations!”

Gluten-Free, Sake, and Vegan

This week’s parsha, Bo, teaches about matzoh, which can be made only from the five types of grain that can become chametz (wheat, barley, spelt, rye, and oats). This gives us the opportunity to discuss kashrus issues related to gluten and non-gluten grains.

Question #1: Rice and Oats

What kashrus issues exist concerning oat-based or rice-based nutritional beverages?

Question #2: Eating Vegan

May I eat in a vegan restaurant?

Question #3: Sake

Is Japanese sake prohibited because of bishul akum or any other kashrus issues?

Question #4: Gluten-free Pastry

Does gluten-free pastry involve pas akum or bishul akum issues?

Introduction:

In parshas Chukas the Torah describes how Bnei Yisrael offered to support the completely non-Jewish local economy by purchasing all their victuals from Sichon and his nation (Bamidbar 21:21-25). Based on an implication in the pasuk, the Gemara suggests that Bnei Yisrael had offered to purchase only food that had not been changed by cooking. Cooked food would have become non-kosher because of bishul akum, the proscription against eating food cooked by a gentile,even when all the ingredients are kosher (Avodah Zarah 37b). Based on this, the Gemara infers that bishul akum was prohibited by the Torah. The Gemara ultimately refutes the suggestion that bishul akum is implied in chumash, concluding that bishul akum is a rabbinic interdiction that does not date all the way back to the time of the Torah. Nevertheless, some early authorities theorize that bishul akum must have been a very early enactment – how else could the Gemara entertain that bishul akum is alluded to already in the Torah (see Tosafos s.v. vehashelakos)?

Chazal instituted this law to guarantee uncompromised kashrus and to discourage inappropriate social interaction (Rashi, Avodah Zarah 38a s.v. miderabbanan and Tosafos ad loc.; Rashi, Avodah Zarah 35b s.v. vehashelakos). The four questions with which I opened our article all involve questions concerning the kashrus of ingredients and also of bishul akum. Since the halachos of bishul akum are indispensable in analyzing all four cases, I will discuss them first.

YUM

When Chazal prohibited bishul akum, they did not prohibit all gentile-cooked foods, but only foods where the cooking of the non-Jew provides significant pleasure to the consumer. Therefore, three major types of gentile-cooked foods are excluded from the prohibition of bishul akum. For pedagogic purposes, we can use the following convenient acronym: YUM, standing for Yisrael, Uncooked, Monarch.

Y. Yisrael – A Jew participates

If a Jew contributes to the cooking in a significant way, the food is permitted because it is now categorized as bishul Yisrael and not bishul akum. How much Jewish participation is necessary to avoid bishul akum? The answer is that this is one of the areas of halacha in which there is a difference in practice between Sefardim and Ashkenazim; Ashkenazim are more lenient in these laws than are Sefardim. Ashkenazim rule that to permit food as bishul Yisrael it is sufficient that a Jew ignite the fire being used to cook, or to add fuel to an already existing flame. Sefardim rule that the Jew must be involved in the actual cooking of the food, preferably by placing the food on the fire.

Another case in which Sefardim and Ashkenazim differ is if a gentile began the cooking and the food became minimally edible, which halacha calls kema’achal ben Derusa’i. Sefardim consider the food already prohibited because of bishul akum. Following this approach, if a gentile cooked the food until it was barely edible and a Jew then completes the cooking and makes it quite tasty, the food is still prohibited, unless there are extenuating circumstances (see Shulchan Aruch, Yoreh Deah 113:9). However, Ashkenazim rule that if a Jew cooked it past this point, it is permitted, since the product’s delicious taste was created by a Yisrael.

U. Uncooked – food edible raw

A food that is commonly eaten raw is exempt from the prohibition of bishul akum even when a non-Jew cooked it completely. This is because cooking such an item is not considered significant (Rashi, Beitzah 16a). For example, baked apples or fruit soup prepared by a non-Jew present no problem of bishul akum since the fruit is edible before cooking. Similarly, a fondue made of cheese, wine and butter would involve no bishul akum concerns, even though it is meant to be eaten with bread, because its ingredients are all edible without this cooking. However, cooked potatoes present a bishul akum concern, because most people do not eat raw potatoes (Chachmas Adam 66:4; cf. Aruch Hashulchan 113:18).

M. Monarch

Bishul akum applies only to food that one would serve on a king’s table alongside bread.  This is described as oleh al shulchan melachim lelafeis es hapas, literally, “would go on a king’s table to enhance the bread with it.” Chazal did not prohibit bishul akum when the food would not be served to a highly respected guest, because they were not concerned that inappropriate social interaction may result (Rambam, Hilchos Ma’achalos Asuros 17:15).

Rice and oats

Now that we have completed our basic introduction, let us analyze our opening questions. Our first question was: What kashrus concerns exist with oat-based or rice-based nutritional beverages?

The most common products I have seen are oat milk and rice milk, which, alongside almond, soy and coconut milk have become popular alternatives to cow’s and goat’s milk. Because all of these products, when available commercially, include ingredients that can be problematic from a kashrus perspective, they should be purchased only with a reliable hechsher. However, I will bring attention to the following question:

“My neighbor, who is not Jewish, brought me some of her homemade rice milk. She knows that we keep kosher, and therefore offered the following information. The equipment she uses for her rice and oat milk is never used for other items, and she provided me with her recipe for producing rice milk:

“Boil or steam the rice in hot water until the rice is soft, but still very raw — you should be able to snap a piece in half with your fingernail without much effort.

Add salt and any other flavoring ingredients you choose (usually dates and/or spices) and then blend.

“The instructions for the oat milk were fairly similar. May I drink her rice or oat milk?”

The raw materials here are very simple and should not present kashrus concerns. There is one possible kashrus issue here related to the rice milk and that is bishul akum. The oat milk should not present a bishul akum problem, since this is not a food that one would serve at a formal banquet. Although Cheerios and gluten-friendly menus have popularized oats as people food, I would be surprised to find oats in the respected kitchens of Buckingham Palace or the White House.

On the other hand, rice is definitely not edible raw, and, unlike oats, is oleh al shulchan melachim. Nevertheless, I call your attention to a critical point. The instructions said that the rice should be “soft but still very raw — you should be able to snap a piece in half.” This rice is inedible, and even the minimal definition of ma’achal ben Derusa’i is not met. Thus, this rice is heated, but not cooked sufficiently for it to be prohibited as bishul akum, whether you are Ashkenazi or Sefardi. Thus, this rice milk should not present a halachic problem.

Whether this factor is true in all factory-produced rice milk is something that should be researched. The hechsher should check out whether the rice is cooked to an extent that it might be prohibited because of bishul akum.

Vegan restaurant

Why can’t I eat in a vegan restaurant that does not have a proper hechsher?

Some people erroneously think that, since a vegan diet includes no meat, fish, eggs or dairy products, there can be no kashrus issues in a product labeled “vegan-friendly.” Unfortunately, this is not true for many reasons.

Vegan cooking may involve many non-kosher ingredients, including vegetables that need to be checked for insects, such as seaweed, which is notorious for containing small sea horses (I guess a vegan does not consider insects as a variety of meat). Also, non-kosher wine and wine vinegars often feature prominently in vegan cuisine. In addition, vegan fare usually includes ingredients that are manufactured on non-kosher equipment. There is, also, the known instance of a vegan restaurant whose chef, a Buddhist, was consecrating food to his gods, potentially prohibiting everything in the restaurant.

Aside from all the other potential problems, a vegan restaurant will probably be cooking food that is prohibited because of bishul akum. Thus, a hechsher on a vegan restaurant will need to supervise not only that all ingredients are kosher, but that its food is prepared in a way that it qualifies as bishul Yisrael.

Japan and sake

At this point, let us discuss our opening question: Is Japanese sake prohibited because of bishul akum or any other kashrus issues?

Sake is the national alcoholic beverage of Japan and is made by fermenting steamed rice. There are probably as many varieties of sake in Japan as there are varieties of whiskey in Scotland, beer in Germany and wine in France. We know that wine without a hechsher is presumably non-kosher, but most observant consumers use whiskeys and beers, even without a hechsher on the label. The question is whether these Jews may safely imbibe sake.

There are three major kashrus areas that require research, which was performed, a few years ago, by one of the major American hechsherim.

A. Are there kashrus concerns with any of the raw materials?

B. Might the equipment be used for non-kosher products?

C. Since rice is not edible raw, and its steamed variety is certainly served to royalty, is there a problem of bishul akum?

Sake production

So, let us explore how sake is produced. Rice is a starch, and will not ferment directly into alcohol. The starch first needs to be converted into sugar, which will ferment into alcohol. Sake production begins with steamed rice and Aspergillus oryzae, a fungus that converts rice starch to sugar. The fungus is mixed with water and freshly steamed rice and left until it forms a sweet, crumbly, dry material. This crumbly mash is then placed in a vat with additional rice and water. A variety of yeast, Saccharomyces cerevisiae, is added to the mixture, which then ferments for several weeks. More Aspergillus oryzae, steamed rice, and water are added to the vat, and fermentation continues for another week or two, at which point the sake is filtered, pasteurized, and bottled. Alcohol may be added if the sake is not as strong as desired. Some high-end sake producers “polish” their product by aging it afterward in used wine casks, but these companies usually advertise this, since this sake is considered a specialty product. There are also varieties of flavored sake, which add additional ingredients.

Now let us examine the three questions that we asked above:

A. Are there kashrus concerns with any of the raw materials?

Rice, on its own, does not present a kashrus issue, nor does the fungus, the yeast or the steam. The added alcohol can present a kashrus problem, since it may be produced from non-kosher wine or whey, or may be chometz she’avar alav hapesach, grain-based chometz alcohol that was owned by a Jew on Pesach. Flavored sake would require further research to determine the sources of the flavors, probably not a practical task unless the sake producer is interested in a hechsher on the product.

B. Might the equipment be used for non-kosher products?

Sake is a very popular product in Japan and is manufactured with specialized equipment. This makes it unlikely that any other products would be made on the same equipment.

Regarding aging or finishing the sake in used wine casks, we can assume that this is not done unless it is advertised as such. Whiskeys finished in wine casks is a lengthy halachic subject that I plan to discuss in the future.

C. Since rice is not edible raw, and its steamed variety is certainly served to royalty, is there a problem of bishul akum? Indeed, since steamed rice is definitely oleh al shulchan melachim, two of the obvious heterim for bishul akum that I mentioned above, Uncooked and Monarch, may not apply. An obvious way to produce kosher sake would be to make it bishul Yisrael by having a Jew steam the rice, but the available pool of mashgichim in Japan is not huge, rendering this solution impractical.

Nevertheless, sake maynot have a bishul akum issue. Many prominent authorities contend that bishul akum does not apply to commercial food production since social interaction between the person working on the factory floor and the consumer will not result (see Birkei Yosef 112:9, quoting Maharit Tzalon). Rav Moshe Feinstein (as reported to me personally by Rav Nota Greenblatt) ruled that there is no bishul akum under these circumstances.

Some authorities (see Darkei Teshuvah 113:16) contend that Chazal never included steamed products under the prohibition of bishul akum, because they categorize steaming as smoking, an atypical form of cooking that Chazal exempted from bishul akum. The Minchas Yitzchak (3:26:6) rules that one may combine these two above reasons and permit the finished product.

Another potential heter here is that rice steamed for sake is not cooked in a way that you would usually serve it, and thus, it is not oleh al shulchan melachim. Certainly, once the rice converts to sugar it is not a product that is consumed. Even at its earlier stage, before it becomes sugar, the rice is not steamed to the point that it is servable. Thus, for an Ashkenazi, sake should not be prohibited as bishul akum. I leave it for our individual readers to discuss this with their own rav or posek.

Gluten-free pastry

At this point, let us examine the last, and perhaps most interesting, of our opening questions:

Does gluten-free pastry involve pas akum or bishul akum issues?

Let me explain the actual question that I was asked. A non-Jewish owned and operated company manufactures a large variety of gluten-free pastries and is seeking a hechsher on its products. Does the hechsher need to be concerned about either pas akum or bishul akum?

Pas akum versus bishul akum

Halachically, the difference between pas akum and bishul akum is not that one item is baked and the other is cooked. Pas akum applies to items whose brocha is hamotzi, or to pas haba’ah bekisnin, items on which the brocha is hamotzi if a large amount is eaten, such as cake or crackers (Rema, Yoreh Deah 112:6; Taz, Pri Chadash, Darchei Teshuvah). Baked items other than bread may be considered bishul akum. Thus, we will need to examine whether gluten-free pastry is prohibited because of bishul akum.

What is gluten?

Gluten is a mixture of hundreds of different proteins found in the five grains on which we recite hamotzi when baked into bread: wheat, barley, spelt, rye and oats. Each of these grains has a different type of gluten. In wheat and spelt, one class of these proteins is called gliadin; in barley, it is called hordein; in rye, secalin, and in oats, avenin.

The gliadin in spelt has a different molecular structure than that of wheat. It is more water soluble, which makes it easier to digest, which is why many people who have difficulty tolerating wheat can comfortably consume spelt products.

The term “gluten” describes proteins that affect people with celiac disease. This is an autoimmune condition characterized by gastrointestinal symptoms. When people with celiac disease consume gluten, their body makes antibodies that attack gluten, causing damage to the small intestine. The inflammation and subsequent damage of the small intestine are responsible for the symptoms.

Non-celiac gluten sensitivity is a different medical condition which also is improved by excluding or limiting gluten from the diet and replacing it with grains whose composition is different.

Research has shown that avenin, the protein found in oats, is tolerable by the majority of people with celiac disease. However, approximately one in five people with celiac disease reacts to avenin. In addition, oats are prone to cross-contamination from gluten of the other cereal grains. For these reasons, New Zealand and Australia prohibit labeling products made with oats as gluten-free, only as gluten-friendly.

What is gluten-free?

Gluten-free recipes involve using starches that contain no gluten. I have seen formulae using the following types of starch to provide the consistency of gluten flours: quinoa, tapioca (cassava), rice, sorghum, amaranth, arrowroot, plantain, millet and buckwheat (kasha). I presume that there are others.

From a kashrus perspective, gluten-free pastry must have hashgacha, just as any other baked goods do, because of various non-kosher ingredients they could contain. But our question was specifically about whether there are pas akum or bishul akum concerns.

Above, I noted that some prominent authorities contend that bishul akum does not apply to commercial food production. In addition, other strong heterim may apply here in that oats, sorghum, amaranth, arrowroot, plantain, millet and buckwheat would, on their own, not qualify as oleh al shulchan melachim. In addition, there is another very important heter here: The non-gluten flours are not the primary taste factors in gluten-free pastry. They are included to provide consistency, but the flavor components are the sugar, oils and fruits, all of which are edible and quite tasty unbaked — the U of YUM (Shu”t Tashbeitz 1:89; 3:11; Pri Chadash). I leave the final decision to the rabbis of the kashrus organization involved.

Conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this context, we can explain the vast halachic literature devoted to understanding a prohibition such as bishul akum, created by Chazal to protect the Jewish people from major sins.

Chalav Yisrael and Powdered Milk

According to the midrash quoted by Rashi, the baby Moshe refused to nurse from non-Jewish women, although this is not the way we use the term Chalav Yisrael in this article.

Question:

Dr. Levy asks me the following: “Friends of ours keep chalav Yisrael, but they will use foods made with non-chalav-Yisrael powdered milk. But I know from my professional work that one can purchase powdered mare’s (female horses) and camel’s milk – they are considered specialty items. So, why is there any difference between using non-chalav- Yisrael powdered milk and non-chalav Yisrael fluid milk?”

The Mishnah (Avodah Zarah 35b, 39b) proscribes consuming milk that a gentile milked unless a Jew supervised the milking, a prohibition called chalav akum, out of concern that the milk may have been adulterated with milk of a non-kosher species. In a different article (The Milky Whey), I noted that there are several opinions as to how to define the prohibition. The most lenient approach is that of the Pri Chodosh (Yoreh Deah 115:15), who understands that one needs to be concerned about chalav akum only when the non-kosher milk is less expensive than the kosher variety, or it is difficult to sell. However, when kosher milk is less expensive, the Pri Chodosh contends that one does not need to be concerned that the gentile would add more expensive specialty non-kosher milk into regular, kosher milk.

On the other side of the spectrum, the Chasam Sofer maintains that the prohibition has a halachic status of davar shebeminyan, a rabbinic injunction that remains binding, until a larger and more authoritative body declares the original sanction invalid, even when the reason the takanah was introduced no longer applies (see Beitzah 5a). Since a more authoritative beis din never rescinded the prohibition on unsupervised gentile milk, consuming this milk involves a serious violation. The Chasam Sofer requires that a Jew must be able to observe the milking, and if not, the produced milk is completely non-kosher because of the rabbinic injunction, even when the non-Jew has no incentive to adulterate the product.

In between these two positions, there is the opinion of Rav Moshe Feinstein and the Chazon Ish (Yoreh Deah 41:4) that in a place where non-kosher milk commands a higher price than kosher milk, it is still prohibited to use non-supervised milk. However, Rav Moshe understands that the takanah did not specifically require that a Jew attend the milking, but that one is convinced that the milk has no admixture of non-kosher. However, whenever it is certain that the kosher milk is unadulterated, halacha considers the milk “supervised” (Igros Moshe, Yoreh Deah 1:47).

How can one be certain? The Mishnah recommended an obvious way: have a Jew nearby who may check at any moment. Of course, this method is not foolproof, but halacha did not require more.

Is there another way that one can be certain? Allow me to use my own example to explain Rav Moshe’s approach. Dr. Levy, our questioner, runs laboratory tests on a sample of unsupervised milk and concludes, with absolute certainty, that it is 100% sheep’s milk. However, no Jew supervised the milking. Is the milk kosher?

According to Rav Moshe’s analysis, this milk is certainly kosher, since we can ascertain its source.

In his earliest published teshuvah on the subject, Rav Moshe explained that when the government levies fines for adulteration of cow’s milk, the fear of this fine is sufficient proof that the milk is kosher. In later teshuvos, he is very clear that other reasons why we can assume that the milk is kosher are sufficient proof, including that normal commercial enterprises assume that standard milk is bovine milk (Igros Moshe, Yoreh Deah 1:48, 49).

Being stringent

Although Rav Moshe concludes that where one can rely that the standardly available milk is kosher there is no prohibition of chalav akum, he still rules in a different teshuvah that a chinuch institution should use only chalav Yisrael products, even if all the children come from homes that do not use chalav Yisrael exclusively. He contends that part of chinuch is to show children that one follows a stricter standard, even when halacha does not necessarily require one.

Powdered milk

We can now address the question mentioned above: “Friends of ours keep chalav Yisrael, but they will use foods made from non-chalav-Yisrael powdered milk. But I know from my professional work that one can purchase powdered mare’s and camel’s milk – they are considered specialty items. So, why is there any difference between using non-chalav- Yisrael powdered milk and non-chalav-Yisrael fluid milk?”

Those who allow use of non-chalav-Yisrael milk powder follow the opinion presented by Rav Tzvi Pesach Frank, Rav of Yerushalayim until his passing a little over sixty years ago and one of the greatest poskim of his era. Rav Frank assumed that the halacha follows the Chasam Sofer, who requires Jewish supervision to permit the non-Jewish milk, and did not accept the heterim of the Pri Chodosh, nor that of the Igros Moshe and the Chazon Ish. Nevertheless, Rav Frank permitted powdered milk from an unsupervised gentile source, for a very interesting reason.

The poskim permit using cheese that is gevinas Yisrael and butter, even when these products are made from unsupervised milk. (I discussed both of these topics in other articles — How Do We Make Kosher Cheese?, and The Great Cottage Cheese Controversy). Why did they permit this? Because non-kosher milk is low in casein, and, therefore, it does not curd, which is the first step in producing cheese. It is also low in milkfat (also called butterfat or cream), which makes it nonprofitable to make butter from non-kosher milk. (Those curious are invited to read the highly entertaining responsum of the Melamed LeHo’il, 2:36:2, on this topic.) For these reasons, even in the days of Chazal, one could assume that a gentile would not add non-kosher milk when he intends to produce either cheese or butter, and therefore, these items were excluded from the prohibition of chalav akum.

May powdered milk be treated like cheese and butter?

Rav Frank notes that there is a qualitative difference between cheese and butter, on the one hand, and powdered milk, on the other, in that there is an inherent difficulty with making cheese and butter from non-kosher milk, whereas one can easily powder any milk. (This is precisely Dr. Levy’s question I mentioned above.) Thus, one could argue that the leniency that applies to cheese and butter should not apply to milk powder.

However, Rav Frank quotes the Ritva (Avodah Zarah 35b) who pointed out that, technically, one could make cheese even from non-kosher species, but the cheese yield from these milks is very poor, and when the milk curds, most of it becomes whey. Thus, although it is theoretically possible to make cheese or butter from non-kosher milk, the halacha does not require one to be concerned about this. Rather, one may assume that a gentile would not adulterate this milk. It is indeed noteworthy that while researching milk and cheese made the world over, I discovered cheeses made from the milk of cows, sheep, goats, water buffalo and yak, all of them kosher species, and milk used from non-kosher mammals such as donkeys, mares, llamas and camels, but I found not a single populace making any variety of cheese from the non-kosher milk. Thus, although the Ritva attests that it could be done, it is simply not worthwhile.

Rav Frank concludes that what permits the unsupervised milk used in cheese and butter is not that it is impossible to use non-kosher milk but that it is unlikely. Thus, he reasons, although one can powder non-kosher milk, the prohibition of chalav akum was limited to fluid milk and other products available in the days of Chazal which could be made easily from non-kosher milk. Since powdered milk did not exist in the days of Chazal, and since we are certain that standardly available powdered milk is of bovine origin, the prohibition against chalav akum does not apply to milk powder, just as it does not apply to butter and cheese.

We should note that the Chazon Ish took strong issue with Rav Frank’s position treating milk powder differently from fluid milk. The Chazon Ish contends that the lenience that applies to cheese and butter applies only because these products, inherently, are not made from non-kosher milk, a logic that does not apply to milk powder.

Thus, Dr. Levy’s friends who keep chalav Yisrael but use foods made with non-chalav Yisrael powdered milk follow the conclusion of Rav Pesach Frank, whereas those who are strict regarding milk powder follow the Chazon Ish’s approach. In Eretz Yisrael, this has become one of the major defining factors for the difference between what is called mehadrin (stricter) kashrus standard, and non-mehadrin hechsherim. The regular hechsherim allow use of non-chalav Yisrael milk powder (imported from the United States), whereas the mehadrin hechsherim use only chalav Yisrael products. (By the way, no Eretz Yisrael hechsher allows the use of unsupervised fluid milk as kosher; all hechsherim, both mehadrin and non-mehadrin, have accepted the position of the Chasam Sofer.)

Flavor and Fragrance – The Bracha on Fragrant Fruits

At the beginning of our parsha, Yosef is still a prisoner in Egypt. But remember, that when he was first sold into slavery to Egypt, it was to a caravan that carried pleasant smelling products….

This article will explain the halachos of the bracha Hanosein rei’ach tov ba’peiros “He who bestows pleasant fragrances in fruits.” Many authorities prefer that one recite the version Asher nasan rei’ach tov ba’peiros, in past tense, “He who bestowed pleasant fragrances in fruits” (Elyah Rabbah 216:5; Mishnah Berurah 216:9).

Here are some curious questions about this bracha that we need to resolve:

1.  Do we recite this bracha on a food that is not a fruit?

2. Assuming that we recite this bracha on any food, do we recite this bracha on a seasoning that is not eaten by itself, such as cinnamon or oregano?

3. If I am eating a fragrant fruit, do I recite a bracha when I smell it while I am eating it?

4. Do I recite this bracha when smelling a delicious cup of coffee or a freshly-baked pastry? After all, the coffee bean is a fruit, and the flour of the pastry is a grain, which is also halachically a fruit. As we will see, the answer to this question is not so obvious.

Origins of the Bracha “Hanosein Rei’ach Tov Ba’peiros”

The Gemara (Berachos 43b) teaches that someone who smells an esrog or a quince should first recite Hanosein rei’ach tov ba’peiros.

Question: Why did Chazal institute a unique bracha for aromatic fruits?

Answer: Whenever one benefits from this world one must recite a bracha. Thus, Chazal instituted brachos that are appropriate for fragrances. However, all the other brachos on fragrance are not appropriate for smelling fragrant foods, since the other brachos praise Hashem for creating fragrances, whereas esrog and quince are not usually described as fragrances, but as foods that are fragrant. Therefore, Chazal established a special bracha for aromatic fruits (see Beis Yosef, Orach Chayim, end of Chapter 297).

It is noteworthy that even though quince is edible only when cooked, it is still considered a fruit for the purpose of this bracha. More on this question later…

Do We Recite This Bracha on Fragrant Foods That Are Not Fruits?

This leads us to a fascinating halachic discussion with a surprising conclusion.

A Bracha on Smelling Bread?

Several early poskim contend that one should recite a bracha before smelling hot fresh bread (Beis Yosef, Orach Chayim Chapter 297, quoting Avudraham and Orchos Chayim). However, when discussing what bracha one should recite, these poskim contend that mentioning besamim (such as Borei isvei or minei besamim) is inappropriate since bread is not a fragrance but a food. It is also inappropriate to recite on it Hanosein rei’ach tov ba’peiros, since it is not a fruit. They therefore conclude that one should recite Hanosein rei’ach tov bapas, “He who bestows pleasant fragrance in bread.” Indeed, one contemporary posek rules that someone who smells fresh cookies should recite Hanosein rei’ach tov ba’ugah, “He who bestows pleasant fragrances in cake.”

However the Beis Yosef and other poskim disagree, contending that one does not recite a bracha before smelling bread or cake, pointing out that the Gemara and the early halachic sources never mention reciting a bracha before smelling bread. These poskim contend that we do not recite a bracha on smelling bread because its fragrance is not significant enough to warrant a bracha (Beis Yosef, Chapter 297).

This question creates a predicament: according to the “early poskim,” one may not smell bread without first reciting a bracha;whereas according to the Beis Yosef, reciting a bracha on its fragrance is a bracha recited in vain! The only way of resolving this predicament is by trying not to smell fresh bread, which is the conclusion reached by the Rama (216:14).

(Incidentally, the Rama’s rulingteaches a significant halacha about the rule of safek brachos le’kula, that we do not recite a bracha when in doubt. Although one may not recite a bracha when in doubt, one also may not smell a fragrance or taste a food without reciting the bracha because that would be benefiting from the world without a bracha. This halacha applies in any case when someone has a doubt about reciting a bracha. Although he may not recite the bracha, he may also not benefit without finding some method of resolving the safek.)

The concept, introduced by the Beis Yosef, that one recites a bracha only on a significant fragrance is hard to define. The following is an example in which poskim dispute whether a fragrance is considered significant.

Wake Up and Smell the Coffee!

The Mishnah Berurah (216:16) rules that someone who smells fresh-roasted ground coffee should recite a bracha of Hanosein rei’ach tov ba’peiros. However, the Kaf Hachayim (216:86), one of the great Sefardic poskim, rules that it is uncertain whether the fragrance of coffee is significant enough to warrant a bracha. Thus, most Sefardim will not recite a bracha prior to smelling fresh-roasted coffee, whereas those who follow the Mishnah Berurah will.

As we have discussed, although some poskim (Avudraham and Orchos Chayim) limit the bracha of Hanosein rei’ach tov ba’peiros to fruits, other poskim contend that this bracha should be recited before smelling any fragrant food. This dispute influences the next discussion.

Do We Recite Hanosein Rei’ach Tov Ba’peiros on a Fragrant Seasoning?

The question here is what defines an edible fruit for the purposes of this bracha. Do we recite Hanosein rei’ach tov ba’peiros only on fruit or do we recite it on any edible item? Furthermore, assuming that we recite Hanosein rei’ach tov ba’peiros on any edible item, is a flavoring or seasoning considered a food for the purposes of this bracha?

Spices that are used to flavor but are themselves never eaten, such as bay leaves, are not considered a food. For this reason, there is no requirement to separate terumos and maasros on bay leaves, even if they grew in Eretz Yisrael (Tosafos, Yoma 81b; Derech Emunah, Terumos 2:3:32). A seasoning that is never eaten by itself, but is eaten when it is used to flavor — such as cinnamon, oregano, or cloves — is questionable whether it is considered a food. Therefore, we separate terumos and maasros on it without a bracha, and, if it is eaten by itself, we do not recite a bracha of borei pri ha’eitz or borei pri ha’adamah (Shulchan Aruch, Orach Chayim 202:16). What bracha do we recite before smelling a seasoning?

Cloves

A clove is the dried flower bud that grows on a tree; the clove is consumed only as a spice, but is not eaten on its own. The poskim dispute what is the correct bracha to recite before smelling cloves, there being a total of four opinions:

Hanosein rei’ach tov ba’peiros:The Shulchan Aruch (216:2) rules that this is the correct bracha to say before smelling cloves, despite the fact that cloves are never eaten alone (Taz 216:4). He contends that we recite Hanosein rei’ach tov ba’peiros on anything that is consumed, even if it is eaten only as a seasoning.

Borei atzei besamim:Many poskim rule that we recite Hanosein rei’ach tov ba’peiros only on items that are eaten on their own, but not if they are eaten solely as a flavoring. Cloves are therefore discounted as a food item and treated exclusively as a fragrance. Since the clove grows on a woody stem, these poskim rule that we should recite Borei atzei besamim before smelling the spice. This approach is followed by some Sefardic poskim (Yalkut Yosef 216:4).

Borei isvei besamim:In a different article, I pointed out that some poskim contend that one recites Borei atzei besamim only on a fragrance that grows on what is considered a tree for all other halachos. The stem of the clove is hollow, which according to some opinions precludes it being considered a tree. (In a different article, I pointed out that some poskim contend that the correct bracha before eating papaya is Borei pri ha’adamah because the papaya plant has a hollow trunk [Shu’t Rav Pe’alim Vol. 2, Orach Chayim #30].) Because of the above considerations, some rule that the clove is not considered a food or a tree, but a herbaceous (non-woody) plant upon which the correct bracha is Borei isvei besamim. This is the common custom among Yemenite Jews(Ohr Zion Vol. 2 pg. 136; Vezos Haberacha, pg. 174). (It should be noted that some varieties of forsythia also have a hollow or semi-hollow stem. According to the Yemenite custom, the bracha recited before smelling these would be Borei isvei besamim rather than Borei atzei besamim. However, non-Yemenites should recite Borei atzei besamim before smelling forsythia since it is a woody, perennial shrub.)

Borei minei besamim:Because of the disputes quoted above, many poskim rule that one should recite Borei minei besamim on cloves (Elyah Rabbah 216:9; Mishnah Berurah 216:16). This is the accepted practice among Ashkenazim and many Sefardic poskim (Birkei Yosef 216:5; Kaf Hachayim 216:34; Ohr Zion Vol. 2 pg. 136).

Is It Wood or Food?

Based on this last opinion, we can derive a different halacha. Assuming that there is a dispute whether the bracha on cloves is Hanosein rei’ach tov ba’peiros or Borei atzei besamim, why do we recite Borei minei besamim when we are in doubt?Shouldn’t the correct bracha be Borei atzei besamim, since it grows on a tree? From this ruling we see that Borei atzei besamim and Hanosein rei’ach tov ba’peiros are mutually exclusive categories. Either an item is a fragrance or it is considered an edible food that is fragrant, but it cannot be both. Thus, if the correct bracha is Hanosein rei’ach tov ba’peiros then it is considered to be a food, not wood, and the bracha Borei atzei besamim is in vain. On the other hand, if the correct bracha is Borei atzei besamim then we have concluded that clove is not food and the bracha Hanosein rei’ach tov ba’peiros would be in vain. For this reason, Ashkenazim and most Sefardic poskim recite the bracha Borei minei besamim whenever there is a question on what bracha to recite (Aruch Hashulchan 216:5; Elyah Rabbah 216:9; Mishnah Berurah 216:16; Birkei Yosef  216:5; Kaf Hachayim 216:39 and Ohr Tzion Vol. 2 pg. 136; compare, however, Yalkut Yosef 216:4).

Cinnamon, Spice and Everything Nice

What bracha does one recite before smelling cinnamon?

The Tur quotes a dispute between the Rosh, who contends that the bracha is Hanosein rei’ach tov ba’peiros, and the Maharam, who contends that one should recite Borei atzei besamim. In the Rosh’s opinion, cinnamon should be treated as a food. Thus, we may assume that he contends that the bracha before smelling all spices is Hanosein rei’ach tov ba’peiros, even though they are not eaten by themselves. We can also draw a conclusion from this Rosh that we recite the bracha Hanosein rei’ach tov ba’peiros even on the bark of a tree that is eaten, such as cinnamon. Thus in his opinion, the word ba’peiros in the bracha should be translated as food rather than as fruit. (In truth, the word pri in the bracha Borei pri ha’adamah should also not be translated as fruit, since we recite it on stems, roots, and leaves when we eat celery, carrots, and lettuce.)

On the other hand, the Maharam contends that Hanosein rei’ach tov ba’peiros  is inappropriate, presumably because cinnamon is usually not eaten by itself. Alternatively, the Maharam may hold that Hanosein rei’ach tov ba’peiros is inappropriate for cinnamon because it is a bark and not a fruit.

Either way, many Ashkenazi poskim rule it is a safek whether the bracha on cinnamon is Hanosein rei’ach tov ba’peiros or Borei atzei besamim and therefore one should recite borei minei besamim (Elyah Rabbah 216:9; Mishnah Berurah 216:16). Many Sefardim recite Borei atzei besamim before smelling cinnamon (Yalkut Yosef 216:4). Everyone agrees that the bracha before smelling cinnamon leaf is Borei atzei besamim.

And the Lemon Smells So Sweet!

But the fruit of the poor lemon is impossible to eat! Is the bracha before smelling a lemon Hanosein rei’ach tov ba’peiros because it is after all a fruit, or do we recite a different bracha since it is too bitter to eat by itself?

Some poskim rule that one should recite Hanosein rei’ach tov ba’peiros before smelling lemons (Ginas Veradim 1:42; Yalkut Yosef 216:7), whereas others contend that one should recited Borei minei besamim before smelling a lemon, treating the lemon as a safek as to whether it is considered a fruit or not (Ketzos Hashulchan 62:9 in Badei Hashulchan).

However, this latter opinion causes one to wonder why the bracha before smelling a lemon is different from the bracha before smelling an esrog? After all, the Gemara teaches that before smelling an esrog we recite Hanosein rei’ach tov ba’peiros, although an esrog is also too bitter to eat. Possibly, the esrogim in the days of Chazal were less bitter and were edible. This is implied by the Gemara (Sukkah 36b), which mentions that Rav Chanina took a bite out of his esrog, something difficult to imagine doing to a contemporary esrog.

An alternative approach is that an esrog is a fruit because it can be made edible by adding sugar. However according to this reason, a lemon should also be considered a fruit, since one can eat candied lemon, which I presume would require the bracha of Borei pri ha’eitz (Vezos Ha’beracha pg. 366). Similarly, some people eat the slice of lemon they used to season their tea, and lemon is also eaten as a pudding or pie filling. I presume that the bracha on these items when eaten alone would be Borei pri ha’eitz. The fact that lemon cannot be eaten unsweetened should not affect what bracha we recite before eating or smelling lemon just as the bracha before smelling fresh quince is Hanosein rei’ach tov ba’peiros even though it is also not edible raw.

Furthermore, we noted above that Chazal instituted the bracha Hanosein rei’ach tov ba’peiros on fragrant fruits and foods because one cannot recite a bracha on them by calling them fragrances. Few people would describe lemon as a fragrance, but as a fruit.

Because of these reasons, I believe the bracha before smelling a lemon should be Hanosein rei’ach tov ba’peiros, but I leave it for the individual to ask their rav.

Incidentally, the correct bracha to recite before smelling citrus blossoms or flowers is Borei atzei besamim, since the flower is not edible.

As a side point, one should be very cautious about eating esrog today. Esrog is not a food crop and it is legal to spray the trees with highly toxic pesticides. Because of the rule of chamira sakanta mi’isurah (the halachos of danger are stricter than that of kashrus), I would paskin that it is prohibited to eat esrogim today unless the owner of the orchard will vouch for their safety. However, this will get me into a controversial debate with many rabbonim who give hechsherim on esrog orchards, so I am not going to discuss this issue anymore. Simply — although Aunt Zelda may have a great recipe for making esrog jam, I suggest substituting lemon or lime instead.

Incidentally, the bracha on eating lemon jam should be Borei pri ha’eitz, which is additional evidence that the bracha before smelling a lemon is Hanosein rei’ach tov ba’peiros.

There is a major shaylah in halacha whether one may smell one’s esrog and hadasim during Sukkos. I have written a separate article on this subject.

Eating and Smelling a Fruit

If I am eating a fragrant fruit, do I recite a bracha before I smell it even though I am not deliberately trying to?

One does not recite the bracha on fragrance if one is picking up the fruit to eat and happens to smell it at the same time (Shulchan Aruch, Orach Chayim 216:2). However, if one intends both to smell the food and also to eat it, then it would seem to be a question of dispute whether one should recites both brachos, Borei pri ha’eitz and Hanosein rei’ach tov ba’peiros. This issue is dependent on a dispute between poskim whether one recites a bracha on a fragrant item that is intended to be used for another purpose. I analyzed this subject in a different article in which I discussed when one should not recite a bracha before smelling a fragrance.

Which Bracha Should I Recite First?

The poskim disagree as to whether one should first recite the bracha on eating the fruit because this is considered a greater benefit (Olas Tamid), or whether one should first recite the bracha on smelling it, since the fragrance reaches your nose before you have a chance to take a bite out of it it (Elyah Rabbah 216:6). The Mishnah Berurah (216:10) rules that one should recite the bracha on smelling the fruit first, although he also cites another suggestion: have in mind not to benefit from the fragrance until after one has recited the bracha on eating it and has tasted the fruit. Then, recite Hanosein rei’ach tov ba’peiros and benefit from the fragrance.

Many poskim state that the custom today is to not make a bracha on smelling a fruit unless it has a pronounced aroma (see Vezos Haberacha pg. 174). For this reason, some hold that one should not make a bracha when smelling an apple since apples are often not that fragrant, but one could recite a bracha when smelling guava which is usually much more aromatic. (However, note that Rambam and Mishnah Berurah [216:8] mention reciting a bracha before smelling an apple, although it is possible that the apples they had were more fragrant than ours.)

The Gemara (Berachos 43b) teaches “How do we know that one must recite a bracha on a fragrance, because the pasuk (Tehillim 150:6) says, ‘Every neshamah praises Hashem,’ – What exists in the world that the soul benefits from, but not the body? Only fragrance.”

Although the sense of smell provides some physical pleasure, it provides no nutritional benefit. Thus, smell represents an interface of the spiritual with the physical. Similarly, we find that we are to offer korbanos as rei’ach nicho’ach, a fragrance demonstrating one’s desire to be close to Hashem. We should always utilize our abilities to smell fragrant items as a stepping stone towards greater mitzvah observance and spirituality.

The author acknowledges the tremendous assistance provided by Rabbi Shmuel Silinsky for the horticultural information used in researching this article.

The Prohibition of Chanufah

According to some opinions, Yaakov may have been guilty of chanufah in his interactions with Eisav in this week’s parsha. What is chanufah and what did Yaakov do?

Question #1: Financial predicament

“Our yeshivah is in desperate financial shape. The father of one of our students is, himself, not observant, but he is extremely well-connected. If we make him Guest of Honor at our banquet, we can probably bring in many hundreds of thousands of dollars through his business and personal connections. Is there any halachic problem with our doing this?”

Question #2: Communal predicament

“There is an individual in our community who has been very helpful to the frum community but who is not observant. Are we permitted to honor him with an aliyah?”

Question #3: Kiruv predicament

Chani asks: “An old classmate of mine has fallen far from Yiddishkeit, unfortunately, and I believe that I am the only frum friend with whom she still keeps contact. Tragically, she recently became engaged to a non-Jew, and she desperately wants me to attend the engagement party. She knows that I do not approve of this relationship. May I attend, because I am concerned that, should I not show up, she will cut off her last contact with anything Jewish?”

Introduction:

All of the above questions require us to study the Torah’s prohibition against chanufah (sometimes pronounced “chanifah“), a word usually, but somewhat inaccurately, translated as “flattery.” Although the word chanufah in Modern Hebrew means “flattery,” and, indeed, is even occasionally used by Chazal in this sense, the prohibition against chanufah has a different meaning. Chanufah is the deception that occurs when someone encourages the performance of misdeeds, aveiros, or when someone fraudulently misrepresents something as Torah or as acceptable behavior when it is not.

The primary case of chanufah is when someone sees or knows that a person sinned and tells the sinner that he did nothing wrong or, worse still, tells the sinner that the sinful act was the correct thing to do. We can refer to this case as “first degree chanufah,” a sin that has very serious ramifications, as we will soon see. The person who violates the prohibition of chanufah is sometimes called a mechaneif, a chanaf, or a chanfan, all of which are different ways of saying the same thing. The Gemara states that chanafim are one of the four groups of people she’einam mekablei penei hashechinah, who will not be allowed to welcome the Shechinah, Hashem’s Divine Presence (Sotah 42a).

Which prohibition does one violate?

According to many Rishonim (Yerei’im; Ramban’s Torah Commentary to Bamidbar 35:33), there is a specific prohibition of the Torah, one of the 613 mitzvos, called chanufah, which is derived from the words of the Torah, velo sachanifu es ha’aretz (Bamidbar 35:33). Those authorities who do not count chanufah as one of the 613 mitzvos still agree with the prohibitions that we will describe, but categorize its violation under one of the other mitzvos of the Torah.

Why is chanufah prohibited?

Chanufah is prohibited for several reasons. Firstly, we are supposed to encourage people to do Hashem’s Will and to discourage them from violating His wishes and instructions. Chanufah does the opposite: it causes the offender to continue his malevolent ways and dissipates his interest and enthusiasm to do teshuvah. Thus, it harms the sinner even more than anyone else. In addition, chanufah encourages other people to respect and emulate the evildoer’s nefarious deeds. Furthermore, by providing inappropriate value to the misdeed, it also causes chillul Hashem, desecrating Hashem’s Holy Name. Someone who flatters an evildoer demonstrates that he is more concerned not to offend the sinner than he is about being disrespectful to Hashem, which is an even bigger chillul Hashem (Tosafos, Sotah 41b s.v. oso).

Distorting the Torah

There is yet another reason why chanufah is prohibited: because it falsifies the Torah (Shu’t Igros Moshe, Orach Chayim 2:51). The mechanef has told the sinner that what is prohibited is permitted, which, in itself, is a very severe transgression. The Maharshal (Yam shel Shelomoh, Bava Kama 4:9) proves that to falsify or distort the Torah is a sin on the level of yeihareig ve’al ya’avor, for which one is required to give up his life rather than violate it – which means that it is more serious than transgressing almost any of the other mitzvos, and it is certainly more serious than desecrating Shabbos or consuming non-kosher food. Falsifying the Torah is equivalent to denying the entire Torah, which is why one is required to sacrifice one’s life, rather than misrepresent a Torah truth. Thus, the most extreme situation of chanufah, in which one tells a wrongdoer that it is permitted to violate the Torah, includes the serious prohibitions of chillul Hashem and denying the authenticity of the entire Torah.

While some authorities rule that one must endanger oneself rather than violate chanufah (Shaarei Teshuvah, 3:188), others contend that this is not required. According to the second approach, chanufah should not be treated more seriously than Shabbos, kashrus and most other Torah laws that are superseded in a situation of risk to one’s life (see Tosafos, Sotah 41b s.v. kol). Those that disagree understand that chanufah, which includes denying the authenticity of the entire Torah, merits this level of serious consideration (see Igros Moshe).

The story of Agrippas

To demonstrate how serious this prohibition is, the Gemara (Sotah 41b) shares with us the following narrative: King Agrippas (who reigned towards the end of the Second Beis Hamikdash) was an excellent ruler, highly respectful of the Gedolei Torah of his era and committed to the observance and spreading of Torah and mitzvos. Notwithstanding his many good qualities, calling himself “King” over the Jewish people violated halachah, since he was descended from gentile slaves, and the Torah states, lo suchal laseis alecha ish nachri asher lo achicha hu, “You may not place over yourselves a gentile who is not your brother” (Devarim 17:15). Agrippas realized that he was not permitted to be king. When Agrippas reached the words of the Torah where it prohibits appointing a king unless he is native Jewish, his eyes began to tear, for he realized that he, himself, was ruling in violation of this law. At that moment, the Sages present told him, “Don’t worry, Agrippas. You are our brother,” thus approving his reign, in violation of the Torah.

The Gemara says that the leaders of the Jews should have been destroyed for violating chanufah, and, at that moment, many catastrophic occurrences befell the Jewish people and many lives were lost. Granted that Agrippas was concerned about Torah and mitzvos, the halachah still forbade him from being king. Although the Sages were in no position to admonish him, it was forbidden to encourage his misdeed. Instead,they should have remained silent (Tosafos, Sotah 41b s.v. oso), which would have been understood as a respectful disapproval.

Levels of chanufah

Although the most obvious instance of chanufah is telling an evildoer that he has done nothing wrong, any action that encourages sinful deeds is included under the general heading of chanufah. Rabbeinu Yonah, in his monumental work Shaarei Teshuvah (3:187-199), explains that there are nine levels of chanufah. The highest level is, of course, telling an evildoer that his performing a sin is acceptable. The other categories are all instances where the mechanef does not praise the sin itself, but lessens the gravity of the sin in an indirect way. Let us see how this manifests itself.

Praising publicly

Honoring a malefactor violates chanufah, even when the mechanef says nothing to justify the wrongdoer’s misdeeds. Although, in this instance, the mechanef did not overtly encourage or condone the misdeed, praising a sinner as a “good person” implies that the sin is acceptable, which is chanufah.

For example, Shimon, president of the yeshivah, decides to make Mr. Wealthy, whose fortune was made in very scandalous ways, the Guest of Honor at its annual dinner, since Mr. Wealthy’s contacts can certainly help the yeshivah.

Some contemporary authors (Lerei’acha Kamocha, Volume 1, Page 102) contend that one violates the prohibition of chanufah even when the person who sinned is unaware that what he is doing is wrong, such as, he is uneducated about Judaism.

Complimenting a sinner

Another category is someone who praises an evildoer in private, although he is careful not to praise the offender in the presence of other people, so that they are not influenced by his wicked ways. For example, Levi knows that it is chanufah to introduce Mr. Scoundrel publicly as a superior individual, and therefore he is careful not to praise Scoundrel in front of others. However, in private, Levi tells Scoundrel what a great guy he is. This is also chanufah, because the sinner, hearing the flattery, feels no motivation to repent; after all, even Levi thinks he is righteous. The wrongdoer fails to comprehend that he needs to reevaluate his priorities and his deeds, and this error was encouraged by the mechanef.

Failure to protest

Rabbeinu Yonah lists several other categories of chanufah, most of which we will touch on briefly. One type of chanufah is when someone refrains from reprimanding evildoers when he has the opportunity to do so. Another, similar example is that someone who is in a position to protest a misdeed and fails to do so violates chanufah. These last examples of chanufah are all passive, rather than active, yet we see clearly why the lack of protest encourages sin.

Example: A group that calls itself Jewish is backing an initiative that is against what Torah stands for. Failing to protest that this is not Judaism constitutes chanufah.

The halachah requires us to rebuke people whom we see doing something wrong, which is the mitzvah called tochachah. This mitzvah applies only as long as it is possible that the wrongdoer may listen.

Rules of tochachah

The halachah is that a person who is reproving someone for sinful actions must do so in a way that shows that he truly cares about the offender. The Rambam (Hilchos Dei’os 6:7) writes that he should explain that he is helping the offender earn a greater share in olam haba. “One who sees his friend sinning or following a lifestyle that is not good has a mitzvah to influence him to return to the proper way and to inform him that he is harming himself… The one who rebukes must do so privately and in a pleasant manner and soft voice.”

Gad’s next-door neighbor is not observant. To bring the neighbor back to Yiddishkeit, Gad must show sincere care about his neighbor. Once the neighbor feels that Gad truly cares, the neighbor sees the beauty of a frum lifestyle. At this point, Gad can explain to his neighbor how beneficial it is to observe mitzvos.

Tochachah that will be ignored

However, the halachah is that when it is clear that a sinner will ignore reproof, one should not attempt to admonish him, as it says in Mishlei (9, 8): Do not rebuke a scoffer lest he come to hate you; rebuke a wise man and he will love you. To quote the Gemara, Just as it is a mitzvah to say something that will be heeded, it is a mitzvah to refrain from saying something that will be disregarded (Yevamos 65b).

Remaining present

Another type of chanufah is someone who remains present while evildoers sin. For example, Asher is sitting with a group of people who are spreading gossip, speaking loshon hora, using foul language; or, the group includes scoffers who deride Torah and mitzvos. Asher knows that this group will not listen to his admonition, so there is no mitzvah of tochachah. Asher wants to know whether he may remain sitting among them. The answer is that it is prohibited to remain in their presence, because this implies that he agrees with and accepts their behavior. Staying with them encourages the sinners to continue their nefarious activities; they rally support for their evil ways from his ongoing presence. Granted that it may be counterproductive to admonish them, Asher may not remain with them and must “express” his disapproval by removing himself.

Honoring when inappropriate

Still another category of chanufah is someone who is careful not to speak in a flattering way about a wrongdoer, but, in order to maintain peace, he treats the wicked person respectfully, the way one treats a wealthy individual because of his financial success. Although there is a halachic source that one should honor the wealthy (Eruvin 86a), one may not honor the wicked.

After mentioning this category of chanufah, Rabbeinu Yonah limits its application. When the wicked person is in a position of authority, one may demonstrate respect to him in the way that people honor powerful people, out of fear. However, although one may act respectfully, one may not praise the wicked person. Treating him with respect is permitted, since everyone realizes that the evildoer is being treated with honor only because circumstances require it. This is the meaning of the statement of the Gemara: it is permitted to flatter evildoers in this world (Sotah 41b).

Other authorities offer a different explanation of this Gemara, contending that one may flatter a malefactor because not doing so could be dangerous (Shu’t Igros Moshe, Orach Chayim 2:51).

Therefore, if Yissachar finds himself in a position where he must lobby a highly influential Jew who has distanced himself from his people, Yissachar must be careful to know exactly what he may say and what he may not.

An inappropriate appointment

One of Rabbeinu Yonah’s categories requires some explanation, since it does not fit the use of the word flattery, but fits well our definition of chanufah as misrepresenting or falsifying Torah. Rabbeinu Yonah explains that, when a highly-respected personality acts out of self-interest and appoints someone to a rabbinic position for which the appointee is not competent, this appointment meets the criteria for chanufah. Rabbeinu Yonah says that this misrepresents a Torah value because the appointment causes people to trust the appointee in a way that is unwarranted or to rely on his ability to rule on halachah. The result is a hindrance to proper Torah observance and the judicial system. Therefore, if Rabbi Dan appoints his son to a rabbinic position for which the son is not qualified, this constitutes chanufah. All of these qualify as chanufah because the result is a misrepresentation of the real essence of Torah.

At this point, I would like to address the last of the questions asked above:

Chani asks: “An old classmate of mine has fallen far from Yiddishkeit, unfortunately, and I believe that I am the only frum friend with whom she still keeps contact. Tragically, she recently became engaged to a non-Jew, and she desperately wants me to attend the engagement party. She knows that I do not approve of this relationship. May I attend, because I am concerned that, should I not show up, she will cut off her last contact with anything Jewish?”

Chani may not attend the party, since this is clearly endorsing the engagement and allowing the classmate to delude herself into thinking that what she is doing is not that bad.

Rav Moshe’s teshuvah

Having explained the rules of chanufah as categorized by Rabbeinu Yonah, I will present a responsum of Rav Moshe Feinstein (Shu’t Igros Moshe, Orach Chayim 2:51) on the topic. The question pertained to a Jewish community that had received much benefit, both communally and individually, from a Jewish physician who was married to a gentile woman. The community had never given the physician an aliyah to the Torah or any other honor, but the rabbi of the community felt that it would be beneficial to honor the physician with opening and closing the aron kodesh. Rav Moshe notes that, although there are halachic issues involved in giving an aliyah to someone who does not observe Torah, there is no inherent halachic problem with having him open or close the aron kodesh. However, there is a potential halachic issue with whether giving a sinner this honor violates the prohibition against chanufah. Since the individual involved is flagrantly and publicly violating a basic aspect of Torah, honoring him in any way might violate the Torah.

Rav Moshe contends that, from the Gemara’s cases of chanufah, we see that the prohibition of chanufah includes only stating that something is permitted when it indeed is forbidden or praising an evildoer excessively. However, to praise an evildoer for the chesed he performs for the community is permitted. Rav Moshe even permits exaggerating a bit what this individual does in order to assure his future help and cooperation.

As a result, he rules that one may honor the intermarried physician with opening the aron kodesh, since this does not imply that we are accepting his objectionable lifestyle.

Conclusion

Many people feel that complimenting someone for what they have done is polite. We now realize that praising people is not always permissible, and that honoring someone may also not be the correct thing to do. Obviously, questions as to specific applications of this halachah should be referred to a posek.

May I Eat before I Daven?

As the Gemara teaches, the source in this week’s parsha teaches that Yaakov introduced the Maariv prayers…

Question #1: Reuven calls me: I have not been well, and I need to eat something shortly after awaking. On weekdays, I go to shul to daven when I wake up and I can wait to eat until after davening, but I do not have this option on Shabbos. What should I do?

Question #2: Ahuva asks: It is difficult for me to wait for Kiddush until my husband returns from shul. May I eat something before he arrives home?

Question #3: Someone told me that a woman may not eat in the morning before she davens, but I remember being taught in Bais Yaakov that we may eat once we say the morning berachos. Is my memory faulty?

Answer:

The Gemara (Berachos 10b) states: “What do we derive from the verse, You may not eat over blood (Vayikra 19:26)? That you may not eat (in the morning) before you have prayed for your ‘blood’… The verse states, in reference to someone who eats and drinks prior to praying: You have thrown me behind your body (Melachim 1 14:9). Do not read your body (in Hebrew gavecha), but your arrogance (gai’echa). The Holy One said: After this person has indulged in his own pride (by eating or drinking), only then does he accept upon himself the dominion of heaven!?”

The halacha that results from this Gemara is codified by all authorities. To quote the Rambam: “It is prohibited to taste anything or to perform work from halachic daybreak until one has prayed shacharis” (Hilchos Tefillah 6:4).

Would you like tea or coffee?

Although all poskim prohibit eating and drinking before morning davening, we find early authorities who permit drinking water before davening, since this is not considered an act of conceit (Rosh, quoting the Avi Ha’ezri; the Beis Yosef cites authorities who disagree, but rules like the Avi HaEzri). Most later authorities permit drinking tea or coffee, contending that this, also, is considered like drinking water, but the poskim dispute whether one may add sugar to the beverage. The Mishnah Berurah and others prohibit this, whereas the Aruch Hashulchan and other later authorities permit it. They are disputing whether adding sugar to the beverage promotes it to a forbidden beverage, or whether it is still considered water that one may imbibe before davening.

Hunger

The Rambam rules that someone who is hungry or thirsty should eat or drink before he davens, so that he can daven properly (Hilchos Tefillah 5:2).

Similarly, some authorities contend that, for medical reasons, anything may be eaten or drunk before davening. They explain that the Gemara prohibited only eating or drinking that demonstrate conceit, whereas whatever is done for medical reasons is, by definition, not considered arrogant (Beis Yosef, quoting Mahari Abohav). The Shulchan Aruch accepts this as normative halacha (Orach Chayim 89:3).

I will be hungry!

What is the halacha if someone is, as yet, not hungry, but he knows that he will be so hungry by the end of davening that it will distract him from davening properly. Is he permitted to eat before davening? This question impacts directly on Reuven’s question.

The answer to this question appears to lie in the following Talmudic discussion (Berachos 28b):

“Rav Avya was weak and, as a result, did not attend Rav Yosef’s lecture that took place before musaf. The next day, when Rav Avya arrived in the Yeshiva, Abayei saw Rav Avya and was concerned that Rav Yosef may have taken offense at Rav Avya’s absence. Therefore, Abayei asked Rav Avya why he had failed to attend the previous day’s lecture. After which the following conversation transpired:

Abayei: Why did the master (addressing Rav Avya) not attend the lecture?

Rav Avya: I was not feeling well and was unable to attend.

Abayei: Why did you not eat something first and then come?

Rav Avya: Does the master (now referring to Abayei) not hold like Rav Huna who prohibits eating before davening musaf?

Abayei: You should have davened musaf privately, eaten something and then come to shul.

We see, from Abayei’s retort, that someone who is weak should daven first and then eat, even if this means that he davens without a minyan. Based on this passage, several noted authorities rule that someone who will not be able to wait until after davening, and cannot find an early minyan with which to daven, should daven privately (beyechidus), eat and then attend shul in order to hear the Torah reading and fulfill the mitzvos of answering Kaddish and Kedusha (Ba’er Heiteiv 89:11; Biur Halacha 289; Da’as Torah 289 quoting Zechor Le’avraham; Shu”t Igros Moshe, Orach Chayim 2:28 at end of teshuvah). Thus, it seems that we can positively answer Reuven’s question: If he cannot wait until davening is over to eat, he should daven be’yechidus, make Kiddush and eat something, and then come to shul to answer Borchu, Kedusha, Kaddish and hear keriyas hatorah.

May a woman eat before Kiddush?

Once someone becomes obligated to recite Kiddush, he cannot eat or drink anything before reciting Kiddush. Let us now discuss Ahuva’s question: It is difficult for me to wait for Kiddush until my husband returns from shul. May I eat something before he arrives home?

Of course, Ahuva could recite Kiddush herself. To fulfill the mitzvah of Kiddush, she needs to eat something that fulfills the requirement of Kiddush bimkom seudah¸ a topic we will discuss a different time. However, Ahuva does not want to recite Kiddush, or does not want to eat something to accompany the Kiddush. Is there a halachic solution to permit her to eat or drink before Kiddush?

There are some authorities who suggest approaches to permit Ahuva to eat or drink before Kiddush. Here is one approach:

Although most authorities obligate a woman to recite the daytime Kiddush and prohibit her from eating before she recites Kiddush (Tosafos Shabbos 286:4, 289:3; Pri Megadim, Mishbetzos Zahav 289:1; Mishnah Berurah 289:6), this is not a universally held position. One early authority (Maharam Halavah, Pesachim 106, quoting Rashba) contends that women are absolved of the requirement to recite daytime Kiddush.  The reason is that the daytime Kiddush is not an extension of the mitzvah of evening Kiddush, but is to demonstrate that the meal is in honor of Shabbos, and this requirement does not devolve upon women.

Although this approach is not halachically accepted, some authorities allow a woman to rely on this opinion, under extenuating circumstances, to eat before reciting morning Kiddush (Shu”t Minchas Yitzchak 4:28:3).

When does a married woman become obligated to make Kiddush?

Rav Moshe Feinstein presents a different reason to permit a married woman to eat before Kiddush. He contends that since a married woman is required to eat the Shabbos meal with her husband, she does not become responsible to make Kiddush until it is time for the two of them to eat the Shabbos meal together, meaning after davening (Shu”t Igros Moshe, Orach Chayim 4:101\2). In Rav Moshe’s opinion, she is not yet obligated to make Kiddush, since the time for her meal has not yet arrived.

The Shemiras Shabbos Kehilchasah (Chapter 52, note 46), in the name of Rav Shelomoh Zalman Auerbach, disagrees with this opinion. Firstly, Rav Shelomoh Zalman Auerbach is unconvinced that she is halachically required to eat her meal with her husband. Furthermore, even assuming that she is, he disagrees that this permits her to eat before Kiddush.

If we do not follow the lenient approaches mentioned, when does a woman become obligated to recite Kiddush and is therefore no longer permitted to drink tea, coffee, and water? The Acharonim debate this issue, but explaining their positions requires explaining a different topic:

What must a woman pray?

All authorities require a woman to daven daily, but there is a dispute whether she is required to recite the full shemoneh esrei (I will call this the “Ramban’s opinion”), or whether she fulfills her requirement by reciting a simple prayer, such as the morning beracha that closes with the words Gomel chasadim tovim le’amo Yisrael (I will refer to this as the “Magen Avraham’s opinion”).

When may she eat?

According to the Ramban’s opinion that a woman is required to recite the full shemoneh esrei, she may not eat in the morning without first davening (see the previous discussion), whereas, according to the Magen Avraham’s opinion that she fulfills her requirement once she has recited a simple prayer or morning berachos, she may eat once she has recited these tefillos.

Some authorities rule that a woman becomes obligated to hear Kiddush as soon as she recites berachos, since she has now fulfilled her requirement to daven, and she may therefore begin eating her meals. According to this opinion, now that she has recited morning berachos, she may not eat or drink without first making Kiddush (Tosafos Shabbos 286:4, 289:3). This approach contends that, before she recites morning berachos, she may drink water, tea or coffee, but after she recites morning berachos she may not drink even these beverages without first reciting Kiddush.

There is another view, that contends that a woman can follow the same approach that men follow, and may drink water, tea or coffee, even after she recited berachos before she has davened (Pri Megadim, Eishel Avraham 289:4 as understood by Halichos Beisah page 204).

At this point we can address the third question I raised above:

“Someone told me that a woman may not eat in the morning before she davens, but I remember being taught in Bais Yaakov that we may eat, once we say the morning berachos. Is my memory faulty?”

Many authorities contend that, although a woman should daven shemoneh esrei every morning, she may rely on the opinion of the Magen Avraham in regard to eating. Therefore, she may eat after reciting morning berachos. In many institutions, this approach was preferred, since it accomplishes that the tefillah that the girls recite is a much better prayer, and they learn how to daven properly. However, this does not necessarily tell us what she should do on Shabbos morning, and I refer you back to the earlier discussion about this issue.

Conclusion

Rav Hirsch, in his commentary to the story of Kayin and Hevel in Parshas Bereishis (4:3), makes the following observation: “Two people can bring identical offerings and recite the same prayers and yet appear unequal in the eyes of G-d. This is made clear in connection with the offerings of these brothers. Scripture does not say: ‘G-d turned to the offering by Hevel, but to the offering by Kayin He did not turn.’ Rather, it says: ‘G-d turned to Hevel and his offering, but to Kayin and his offering He did not turn.’ The difference lay in the personalities of the offerers, not in their offerings. Kayin was unacceptable, hence, his offering was unacceptable. Hevel, on the other hand, was pleasing, hence, his offering was pleasing.”

The same is true regarding prayer: the Shemoneh Esrei itself, the Elokai netzor leshoni addition, and the personal supplications that different people recite may appear identical in words, but they are recited with individual emotion, devotion and commitment. Tefillah should be with total devotion in order to improve ourselves, to enable us to fulfill our role in Hashem’s world.

Conflict of Interest

The Torah teaches that Yitzchak loved Esav because ציד בפיו….

Question #1: Conflict of Interest

Does the Torah discuss a government official having a conflict of interest?

Question #2: Cash or Credit?

Is there any violation of shochad if someone receives a service that does not have a market value?

Question #3: Friend or Enemy?

Are you permitted to judge a case in which a friend of yours is one of the litigants? What about someone who davens in the same shul? Or someone who consistently rubs you the wrong way?

Introduction

There are three places where the Torah mentions the prohibition against accepting a bribe, once in parshas Mishpatim, a second time at the very beginning of parshas Shoftim and again in parshas Ki Savo. In parshas Mishpatim, the Torah states: “Do not accept a bribe, because bribery blinds those who see clearly and corrupts just words” (Shemos 23:8). In parshas Shoftim, the Torah states: “Do not pervert justice… do not accept a bribe, because bribery blinds the eyes of the wise and corrupts just words” (Devorim 16:19). And in parshas Ki Savo, the Torah states: “Cursed is he who accepts a bribe.” Thus, we see that not only is there a lo sa’aseh prohibition, mentioned twice in the Torah, for accepting a bribe, it is also accompanied by a curse, one that was declared by the entire people of Israel.

We all recognize that paying a judge to rule in one’s favor is forbidden and, in the contemporary world, can lead to fines, imprisonment or both, as well as a tarnished reputation. We will soon learn that what halacha prohibits under the category of the taking of shochad, bribery, is much more far-reaching than what anyone would consider bribery in today’s world. Virtually all cases that we would consider “conflict of interest,” which is a lesser crime in today’s world than straightforward bribery, are prohibited by the Torah as shochad. In other words, making a decision on the basis of a “conflict of interest” is just as forbidden in halacha as receiving a direct bribe on the matter. Both are severe Torah prohibitions; violating either invalidates the individual from being permitted to be a judge or even a witness, and both are included in the curse that the Torah metes out in parshas Ki Savo.

A very exclusive club

We see in Chazal that even minor reasons were considered sufficient for a judge to disqualify himself. The Gemara (Kesubos 105b) notes several instances in which great scholars excluded themselves from being judges:

1. Shmuel was crossing a stream, probably on some type of unsteady rope bridge (or, according to the Rambam, he was exiting a ferry), when a passerby extended a hand to steady him. Shmuel, realizing that the passerby was not someone he knew locally, inquired as to what brought the visitor to town. The passerby replied that he had a din Torah with someone.

Shmuel informed the visitor that, since he had assisted Shmuel on the rope bridge, Shmuel was excusing himself from being a judge in the case (Kesubos 105b). Shmuel pointed out that it is inappropriate to be a judge in any situation when the judge has a tendency to look at one side more favorably than the other. Note that there was no conflict of interest or any implied bribery in this case, since there is no indication that the service was rendered in anticipation of better treatment in beis din. Also note that Shmuel would not gain anything if he ruled in favor of the passerby or against him. From this we see how careful a judge must be to avoid a case where he may have a conflict of interest, even as little as a debt of gratitude for a minor favor, which might influence his decision.

According to the Rambam (Hilchos Sanhedrin 23:3), in this case, and the three cases I will be quoting next, the judge is invalid min hadin, whereas, according to Tosafos, these dayanim were permitted to judge the situations, but chose not to.

2. Ameimar was sitting as a judge, probably in some outdoor venue, when a feather landed on his head. A well-doer quickly removed the feather from Ameimar’s head. Ameimar asked him what brought him to beis din, to which he replied that he was waiting his turn for his own litigation. Ameimar then informed him that he, Ameimar, now did not consider himself objective enough to be the judge in the case, since the well-doer had performed a chesed for him. In this case, Tosafos rules that Ameimar was halachically permitted to be the judge, since we do not assume that such a small kindness would render it more difficult for the judge to maintain his objectivity. However, Ameimar withdrew himself from litigating, considering it difficult for him to judge the case objectively, since the well-doer had done him a favor.

3. Some spittle was lying on the floor in front of Mar Ukva, when a passerby saw and covered it. When Mar Ukva asked the passerby what brought him to town, he answered that he had some litigation. Mar Ukva then replied that he (Mar Ukva) could no longer serve as a judge in the passerby’s litigation, since the latter had helped him and he would be inclined to favor him.

At this point, we can address the second of our opening questions: Is there any violation of shochad if someone receives a service that does not have a market value?

The answer is we see that there certainly could be a violation, if it was done intentionally to influence the decision that a dayan will be making.

4. The sharecropper of Rabbi Yishmael the son of Rabbi Yosi paid his rent with a basket of fruit, brought every Friday. One time, he showed up with his fruit on Thursday, instead. When Rabbi Yishmael inquired why the rent was paid a day early, the sharecropper answered that he had some litigation to attend to, and since the beis din was open only on Monday and Thursday, he brought his rent money early, to save himself the trip.

Rabbi Yishmael was a judge in the beis din in this town. Notwithstanding that the sharecropper had paid a day early because of his own convenience and was completely forthcoming that he was not expecting any favors in the litigation as a result, Rabbi Yishmael notified the sharecropper that, because the payment was earlier than required, he was not accepting it. In addition, Rabbi Yishmael disqualified himself from judging the case. Instead, Rabbi Yishmael appointed two other scholars to serve in his place as the judges. (The commentators discuss why he replaced himself with two other judges, but answering that question takes us away from our topic.)

Rabbi Yishmael remained in the courtroom as a spectator. While the two parties were sparring with their claims and counterclaims, Rabbi Yishmael found himself thinking of legal arguments that the sharecropper could use – in other words, he felt himself reacting to the litigation as the sharecropper’s advocate, rather than as a bystander who could judge objectively. This, of course, justified Rabbi Yishmael’s earlier decision to withdraw from judging the case. In summary, he noted: “Those who accept bribes should have their bodies swollen. Look how I lost my objectivity, notwithstanding that I did not accept the early payment, and it was money that was legitimately owed me. How can anyone possibly expect to judge properly any matter in which he has a conflict of interest?”

The Gemara points out that bribery does not necessarily have to be cash, but can be a different form of benefit. It also explains that any time a judge receives benefit from one side in litigation, this creates a conflict of interest that distorts the judge’s objectivity and may disqualify him from rendering objective judgment.

Note that had the sharecropper not brought payment a day earlier, there would be no halachic problem for Rabbi Yishmael to judge the case, even though it involved a person who worked on his field.

Conflict of interest

At this point, let us discuss our opening question: Does the Torah discuss a government official having a conflict of interest?

Several major authorities rule that anyone with communal responsibility must be very careful not to receive any remuneration from an interested party in an issue that he is deciding (Pilpula Charifta, Sanhedrin, 3:17; Shu’t Chasam Sofer; Pischei Teshuvah, Choshen Mishpat 34:27; Aruch Hashulchan, Choshen Mishpat 9:1). This should also affect issues of conflict of interest when fundraising for political purposes.

Friend or enemy?

The Gemara (Kesubos 105b) states that a person should not be a judge for a case involving a close friend or an enemy. The rishonim dispute whether this law is true only when the party to the case is a very close friend or a true enemy (Tosafos ad loc.), or even if he is not his best friend or biggest enemy (Rambam, Hilchos Sanhedrin 23:6). The Rambam adds that the best situation is when the judge does not know either party.

It is permitted to be the judge for a case involving a business associate or a neighbor, provided the judge feels that he can be truly objective. If he feels a bias toward one side or the other, he should refrain from judging the case.

Paying a bribe

It is interesting to note that the violation of bribery applies only to the judge who receives the bribe. Unlike interest, where the Torah prohibits not only the lender from receiving interest, but also the borrower who pays interest with a specific lo saaseh¸ the individual who bribes a judge or official to provide him with a benefit to which he is not entitled violates only the Torah’s general prohibition of causing someone else to sin (lifnei iveir lo sitein michshol) [Tur and Shulchan Aruch, Choshen Mishpat 9:1].

Visual acuity

The Gemara makes a very interesting comparison regarding the foolishness of people. It is not uncommon for a person to expend copious sums of money on the possibility of finding a cure to alleviate some visual issues from which he is suffering. Yet, the same person will allow himself to have a conflict of interest, notwithstanding that he has blinded his ability to see the matter objectively (Kesubos 105a).

Poor judge

There is another situation in which someone should not be a judge because of a subtle conflict of interest. If a person always needs to borrow things and has nothing to lend in return, he is disqualified from being a dayan (Kesubos 105b), even if he has not yet borrowed anything. If the judge has something that he can lend when the lender needs it, then he (the judge) feels no outstanding obligation to that person. However, if he has nothing to lend him, he feels a sense of debt to the person who assisted him that makes it difficult for him to be objective when he is forced to judge him.

“If the judge is comparable to a king who has no need ever to borrow an item from someone else, he will succeed in holding up the world through proper justice” (Kesubos 105b, based on Mishlei 29:4). However, the opposite is true if the judge is poor. As the Gemara expresses it, he can be compared to a kohein who visits the silos of those who have recently brought in their harvest, in the hope that he will receive the gifts coming to the kohein because he is in the right place at the right time. Ultimately, having a dayan who is very poor may easily result in justice being skewed.

Salary?

The Gemara discusses whether the judicial practice of the amora Karna was acceptable according to halacha. Karna was not a salaried judge, but a Talmudic scholar whose livelihood came from smelling wine to determine whether it was beginning to sour. In order to judge a case, Karna would charge each litigant one sela (Kesubos 105a with Rashi). The Gemara, in discussing why Karna could charge this money, rules that payment for judicial services may fall under three categories, two of which are always forbidden, and the third of which is sometimes permitted. They are:

A. Bribery

Someone being paid for a favorable decision involves shochad, even when both litigants pay him. According to the Derisha (Choshen Mishpat 9:1), this means that both litigants paid the judge to be certain to rule correctly, if their argument is justified; yet, this is forbidden min haTorah, because it is still considered a form of shochad.

B. Wages to rule

The Mishnah (Bechoros 4:6) rules that a judge is forbidden to be paid money for the expertise of rendering a judicial decision, even when both litigants pay him equally (Kesubos 105a). This is forbidden because we are required to observe mitzvos without financial remuneration. This is a vast topic germane to many other areas of halacha, which we will leave for a different article.

C. Lost time

It is possible that the dayan is paid what is called sechar batalah, payment for the time he has lost while involved in the case. The Gemara’s conclusion is that if taking time off from his livelihood to judge the case caused him to lose money, the dayan is entitled to sechar batalah.

The Gemara chooses a couple of examples of this ruling. In addition to the above-mentioned case of Karna, another case it mentions was the practice of Rav Huna, who told the litigants that they should hire a workman who would take his (Rav Huna’s) place and water his fields while he was judging their case.

If it is unclear whether he suffered any loss, he should lechatchilah not collect sechar batalah, but if he received payment, the ruling is nevertheless valid. An example would be where it is possible, but uncertain, whether a customer will arrive while he is busy judging. Since it is uncertain that he loses anything by judging, lechatchilah he should not collect sechar batalah, but if he received payment, the ruling is nevertheless valid.

The Rambam emphasizes that he can receive only the amount that he is actually losing, and no more (Hilchos Sanhedrin 23:5).

The Rambam adds another condition to the case of sechar batalah: The dayan must take from both litigants, and when both of them are in front of him. This is to avoid anyone from thinking that the dayan is receiving illegitimate or inappropriate compensation (Kesef Mishneh).

In the contemporary world, the most common application of this principle is when a dayan is paid to be available to serve on a beis din, such that he can no longer seek employment or other income during the time he has reserved for a din Torah. The Gemara rules that whether this is permitted or not lechatchilah depends on whether he will definitely be losing money or not.

Here is an example which is certainly permitted. A dayan I know does well-paying consultancy work. He instructed the beis din that sought his availability that he usually earns a certain amount per hour, and that he would definitely lose this amount of money while preoccupied with a din Torah. In this case, he is entitled to compensation from the two litigants, provided the two sides pay him equally. According to the Rambam, the two litigants should pay him in front of each other.

To avoid any appearance of impropriety, the proper approach is that a Jewish community hire dayanim and provide appropriate salaries. To quote the Shulchan Aruch, “It is a requirement on the Jews to provide their judges with a livelihood” (Choshen Mishpat 9:3). The community is permitted to accept private donations for this purpose, without concern that the dayanim will favor those who made major donations for this cause, which is, after all, their salaries.

It is preferred that all fundraising for these salaries be at the beginning of the year for the coming year, to avoid any conflict of interest (Tur and Rema, Choshen Mishpat 9:3). If the funds are raised at the beginning of the year, then the money is available when dinei Torah occur without the donors having direct influence.

Still, an individual judge who feels a bias in favor of one of the litigants, because of benefits that he has received in the past or because the litigant is a prominent member of the community, should excuse himself from judging the situation. A similar halacha is true if a litigant is a prominent member of his shul – the dayan or rav should withdraw from being the dayan if he feels that he cannot judge the matter objectively.

Conclusion

As we now see, the details of not taking shochad are far more extensive than what we usually call “bribery” or even “conflict of interest.” The Chasam Sofer rules that when the membership of a community or congregation votes to elect a rabbi, the members have the halachic status of dayanim and must be concerned about any issue of shochad. They must be careful that they vote for whom they think will be best for their community and not because of a personal interest.

This mitzvah helps us highlight the importance of being responsible for other people and for their property and rights. We should pray to be successful messengers, whenever we are entrusted with carrying out Hashem’s will for our community.

Performing a Proper Hesped

Question #1: I have heard eulogies where the speaker seemed more interested in demonstrating his ability as a speaker than in commemorating the departed. Is this the proper way to eulogize?

Question #2: Someone told me that sometimes one obeys the request of a person not to be eulogized, and sometimes one may ignore it. How can this be?

Question #3: Is it true that one may not schedule a hesped within thirty days of a Yom Tov?

Our Parsha

“And Sarah died in Kiryas Arba, which is Hebron, in the Land of Canaan. And Avraham came to eulogize Sarah and to cry over her.” This is the earliest of many verses the Gemara cites when discussing the mitzvah of eulogizing. People often avoid writing halachic articles about hespedim in favor of more exciting or popular topics, leaving many unaware that there is much halachah on the subject. Are there rules to follow when organizing or delivering hespedim? Indeed, there are many, as we will soon see.

The Mitzvah

Most authorities do not count performing a eulogy as one of the 613 mitzvos of the Torah. Indeed, most consider it only a rabbinic mitzvah. Nonetheless, the hesped accomplishes the Torah mitzvah of ve’ahavta le’rei’acha komocha, loving one’s fellow as oneself, since a properly delivered hesped is a very great chesed. To quote the Rambam: “It is a positive mitzvah of the Sages to check on the ill, to console mourners… to be involved in all aspects of the burial… to eulogize… Even though all of these mitzvos are rabbinic, they are all included in the mitzvah that one should love one’s fellow as oneself. Anything that you want someone to do for you, you should do to someone else who also keeps Torah and observes mitzvos” (Hilchos Aveil 14:1).

As the following passages demonstrate, our Sages strongly emphasized the importance of performing this mitzvah properly:

“When a Torah scholar passes away, the entire nation is obligated in his eulogy, as it states, ‘and Shmuel died, and all of Israel eulogized him’” (Mesechta Kallah Rabbasi Chapter 6).

“Whoever is idle in carrying out the hesped of a Torah scholar does not live long” (Yalkut Shimoni, Yehoshua 35).

“Whoever is idle in carrying out the hesped of a Torah scholar deserves to be buried alive” (Shabbos 105b)!

“A voice from above declared, ‘Whoever was not idle in participating in Rabbi Yehudah Hanasi’s eulogy is assured of life in the World to Come” (Koheles Rabbah 7).

“If someone cries upon the passing of an adam kasher (a halachically observant person) Hashem counts his tears and then stores them (Shabbos 105b).”

From this we see that the responsibility of hesped applies both to the person saying the eulogy and to those in attendance, and that this obligation sometimes applies to each individual. Furthermore, we see that the reward for fulfilling this mitzvah properly is very significant, both physically and spiritually, and that the eulogy and the crying associated with mourning are both highly important.

A “Kosher” Person

Above, I cited the statement: “If someone cries upon the passing of an adam kasher, Hashem counts his tears and then stores them.” I translated adam kasher as a halachically observant person.

Who qualifies as an adam kasher?

The rishonim discuss this question. Although the Rosh (Moed Katan 3:59) notes that his rebbe¸ the Maharam of Rottenberg, was uncertain what the term means, he himself concluded that it refers to someone who observes mitzvos properly, even if the person is not a talmid chacham and one sees nothing particularly meticulous about his religiosity. The Shulchan Aruch follows this definition.

Others explain that this is not enough to qualify as an adam kasher. Rather, the title applies to someone who, in addition to observing mitzvos properly, also pursues opportunities to perform chesed (Shach, Yoreh Deah 340:11, quoting Rabbeinu Yonah, Ramban and Bach). According to either approach, one should cry at the funeral of an adam kasher.

What is a proper hesped?

“It is a great mitzvah to eulogize the deceased appropriately. The mitzvah is to raise one’s voice, saying about him things that break the heart, in order to increase crying and to commemorate his praise. However, it is prohibited to exaggerate his praise excessively. One mentions his good qualities and adds a little… If the person had no positive qualities, say nothing about him (Shulchan Aruch, Yoreh Deah 444:1).” (I will soon discuss why one may exaggerate “a little bit,” even though, it would seem,a small lie is also a falsehood.) The eulogy should be appropriate to the purpose and extent of the tragedy. For example, one should eulogize more intensely for a young deceased than for an older one, and more for someone who left no surviving descendants than for someone who had children (Meiri, Moed Katan 27b). Also, the crying of any hesped should not be to excess (Meiri, ad loc.).

In summation, we see that the purpose of a hesped is to cause people to cry over the loss of a Jew who observed mitzvos properly. On the other hand, eulogizing inappropriately is sinful.

At this point, we can answer the first question: “I have heard eulogies where the speaker seemed more interested in demonstrating his ability as a speaker than in commemorating the departed. Is this the proper way to eulogize?

Despite its frequency, such behavior is obviously wrong. I discovered that this sin of eulogizing in non-accordance with halachah, such as speaking for one’s own self- aggrandizement or exaggerating excessively, is so serious that in some places there was a custom to never eulogize and to forgo the mitzvah altogether, despite its importance (see Gesher Hachayim 1:13:4).

Why Do We Eulogize?

The Gemara (Sanhedrin 46b) raises a halachic question: Do we eulogize out of respect for the deceased, or in order to honor the surviving family members? In other words, is the chesed of this mitzvah due to the posthumous dignity granted to the departed, or is it due to its inspiring people to realize the extent to which the surviving family members have been bereaved? The Gemara devotes a lengthy discussion in proving which option is correct.

Doany variations in observance result from this question?

The Gemara notes two such differences:

No Hespedim for Me!!

I. What happens if a person requests that no one eulogize him?

If the purpose of a eulogy is to honor the deceased, the deceased has a right to forgo the honor and request that no eulogies be recited. Since the hespedim are in his/her honor, he/she has the right to forgo the honor and we respect this request. However, if the purpose of a eulogy is to honor the surviving relatives, a request of the deceased does not forgo the honor of the survivors, and we will eulogize him/her anyway, if the family so desires.

Paying for a Speaker

II. A second halachic difference resulting from the above question (whether the mitzvah is to respect the deceased or to honor the surviving family members) is whether one may obligate the heirs to pay for the eulogy.

In many circles and/or eras, it is or was a common practice to hire a rabbi or other professional speaker to provide the eulogy. May one hire such a speaker and obligate the heirs to pay his fee? If the mitzvah is to honor the deceased and hiring a professional speaker is standard procedure, then one can obligate the heirs to hire a speaker, just as they are required to pay for the funeral. If eulogizing is for the sake of the bereaved, one cannot obligate them to pay for professional eulogizers if they prefer to forgo the honor.

The Gemara rallies proof from this week’s parsha that the mitzvah is in honor of the deceased. As the pasuk clearly mentions, Avraham Avinu was not present when his wife Sarah died. The Gemara asks why did they wait until Avraham arrived to eulogize her. If the reason for the hesped is indeed to honor the living, Sarah should not have been left unburied until Avraham arrived. On the other hand, if the mitzvah is to honor the deceased, then Sarah was left unburied so that Avraham could honor her with his hesped.

Although the Gemara rejects this proof, it ultimately concludes that the purpose of a hesped is to honor the deceased. Therefore, if the deceased requested no eulogies, we honor his/her request, and heirs are obligated to pay for eulogies, where appropriate.

Pre-Torah

You might ask, how can we derive halachos from events that predate the Torah? Didn’t the mitzvos change when the Torah was given?

The answer is that since this mitzvah fulfills the concept of ve’ahavata le’rei’acha kamocha, love your fellow as yourself, we can derive from its mode of performance whether its purpose is to honor the deceased or, alternatively, the surviving family members.

Exaggerate a little

The hesped should be appropriate to the deceased; one may exaggerate very slightly (Rosh, Moed Katan 3:63). You might ask, how can any exaggerating be permitted? Isn’t the smallest exaggeration an untruth? What difference is there between a small lie and a big one?

The answer is that there is usually a bit more to praise about the person than we necessarily know, so that, on the contrary, adding a bit makes the tribute closer to the truth (based on Taz, Yoreh Deah 344:1).

Ignoring a Request

I mentioned above that the Gemara concludes that if the deceased requested no eulogies, we honor his/her request. However, this ruling is not always followed. When the Penei Yehoshua, one of the greatest Torah scholars of the mid-eighteenth century, passed away, the Noda Biyehudah eulogized him, even though the Penei Yehoshua had expressly instructed that no eulogies be recited. How could the Noda Biyehudah ignore the Penei Yehoshua’s express request?

The answer, as explained by the Noda Biyehudah’s disciple, is that for a gadol hador to be buried without proper eulogy is not simply a lack of the deceased’s honor, which he has a right to forgo, but also a disgrace to the Torah. Even though a talmid chacham may (in general) forgo the honor due him as a Torah scholar (talmid chacham shemachal al kevodo, kevodo machul [Kiddushin 32b]), this applies only to forgoing honor. He cannot allow himself to be disgraced, since this disgraces not only him but also the Torah itself (Shu”t Teshuvah Mei’ahavah, Volume I #174; see also Pischei Teshuvah, Yoreh Deah 444:1).

We now understand why there are times when one obeys the request of a person to omit his hesped, and times when one may ignore it. Usually, we obey his/her request because of the general principle retzono shel adam zehu kevodo, the fulfillment of someone’s desire is his honor. However, if a gadol hador requests omission of eulogies, and major authorities consider this a breach of respect for the Torah itself, they may overrule the gadol’s request out of kavod for the Torah. (Of course, this implies that the departed gadol felt that the absence of hesped would not be a disgrace to the Torah, and that his halachic opinion is being overruled.)

We now address the third question raised above: Is it true that one may not schedule a hesped within thirty days of a Yom Tov?

Hesped before Yom Tov

The Mishnah (Moed Katan 8a) forbids scheduling a hesped within thirty days before Yom Tov for someone who died over thirty days before Yom Tov (as explained by Rosh ad loc. and Shulchan Aruch Yoreh Deah 447:1). What is wrong with scheduling this hesped, particularly since performing a proper hesped is such a big mitzvah?

The Gemara cites two reasons for this ruling, both explaining that some form of Yom Tov desecration may result from such a eulogy. Rav (according to our version of the text) explained the reason with an anecdote:

“A man once saved money in order to fulfill the mitzvah of aliyah la’regel, traveling to the Beis Hamikdash for Yom Tov. A professional eulogizer then showed up at his door and convinced the wife that her recently departed relative deserved another eulogy. She took the money her husband had saved for aliyah la’regel and gave it to the eulogizer. (This indicates that ambulance chasing is a time-hallowed profession.) At that time, Chazal decreed that one should not make a post-funeral hesped during the thirty day period before Yom Tov.”

The Gemara then quotes Shemuel, who cited a different reason for the ban: Usually, thirty days after someone’s death, he or she is sufficiently forgotten for people to not discuss the death during Yom Tov, which would diminish the festival joy. However, performing a eulogy during these thirty days refreshes people’s memories, and as a result, they discuss the passing during Yom Tov and disturb the Yom Tov joy (Moeid Katan 8b).

The Gemara notes that there is a practical difference between the two approaches. According to the first approach, our concern only applies if someone hires a professional speaker, and there is no stricture against conducting voluntary eulogies. However, according to Shemuel, one may not conduct even an unpaid eulogy, since this may revive the loss for the close family and result in a desecration of Yom Tov.

Contemporary Problem or Not?

Some raise the following question: Why doesn’t the Gemara point out yet another difference that results from the dispute? According to the first approach, the prohibition would only exist when the Beis HaMikdash stood and there was a mitzvah of aliyah la’regel. Today, however, when we unfortunately cannot fulfill this mitzvah, one should be permitted to hire a professional speaker to eulogize within a month of Yom Tov even after the funeral (Ritz Gayus, quoted by Ramban and Rosh). Obviously, according to Shemuel’s approach the same concern exists today that existed when the Beis Hamikdash still stood. Yet the Gemara does not mention such a halachic difference between the two opinions.

The Ramban explains that, indeed, even the first opinion agrees that the prohibition exists also today. Since the story mentioned in the Gemara happened during the time of the Beis Hamikdash, the Gemara cites a case of someone saving up for aliyah la’regel. However, the same idea applies to any funds that are to be used for Yom Tov. Thus, even though we have no Beis Hamikdash, the reason for the prohibition still applies, since celebrating Yom Tov in general is an expense people save for in advance. Thus, the concern still exists that in order to pay for the eulogy one might dip into one’s Yom Tov savings.

Does this law apply even within thirty days of Rosh Hashanah, or only before the festivals of Sukkos, Pesach, and Shavuos?

Since the Gemara mentions that the person spent the money set aside for aliyah la’regel, a mitzvah that applies only to Sukkos, Pesach, and Shavuos, this implies that our concern is only about the special Yom Tov expenses associated with the three regalim festivities, and not Rosh Hashanah (Yeshuos Yaakov, Orach Chayim 547:1).

Eulogizing Children

Does one recite eulogies for children?

Theoretically, one could argue that since the purpose of a hesped is to honor the deceased, perhaps children do not require this type of honor. Nevertheless, the Gemara states that one does perform a eulogy for children of a certain age.

For which age does one perform a hesped?

 “Rabbi Meir, quoting Rabbi Yishmael, said that the children of poor people should be eulogized when they are only three years old, whereas the children of wealthy people are eulogized only if they are five. Rabbi Yehudah quoted Rabbi Yishmael differently: the children of poor people at five, and the children of wealthy people at six. The halachah is according to the last opinion quoted (Moed Katan 24b).

Both opinions agree that the age is earlier for the child of a poor family than for the child of a wealthy family. What is the reason for this difference?

Rashi explains that a poor person, who has nothing in the world but his children, suffers the loss of his children more intensely and the need for a hesped is greater. One might challenge that explanation, since the hesped is for the honor of the departed, and therefore what difference does it make if the family suffers more? The hesped is not for their benefit, but to honor the departed. I have not found this question discussed, although one later authority notes that the custom (at least in his time and place) was not to eulogize children at all (Beis Hillel to Yoreh Deah 444:4).

Conclusion

The Torah begins and ends by describing acts of chesed that Hashem performed, the last one entailing His burying of Moshe Rabbeinu. Our purpose in life is to imitate Hashem in all activities, until our personality develops to the point that we instinctively behave like Hashem. Fulfilling the mitzvah of hesped correctly, whether as a speaker or as a listener, develops our personality appropriately,and thus fulfills another highly important role in our Jewish lives.

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