Some Applications of the Laws of Loshon Hora

This article consists of two original shaylos that I wrote in Hebrew. These teshuvos are in the process of being edited for the next volume of Shu”t Nimla Tal. Both teshuvos are germane to atypical questions I have been asked about the laws of loshon hora. The two questions were:

  1. A therapist requesting guidance concerning what she should or should not say about a couple that she had counseled through a divorce.
  2. Is it loshon hora to tell over something that the person himself is not embarrassed about and does in public? For example, when these is no reason for the other person to know (no to’eles), is it loshon hora to say that someone has extreme political positions that he himself espouses in public? Or, is it loshon hora to say that a woman does not dress according to halacha, when she appears in public this way?

The first responsum is to a question asked by a psychiatric social worker. A couple had become divorced from a marriage in which both parties were unstable. The social worker asking the shaylah, who I happen to know is an excellent therapist, was their marriage therapist. She feels that, although the husband and wife were both at fault for the dissolution of the marriage, the ex-wife is not currently a candidate for future marriage, whereas the ex-husband could handle a future marriage, but only with professional involvement (that is, marital therapy) from the very beginning of the marriage and perhaps even earlier. What may the therapist answer someone who asks her about these individuals for a future marriage? Both members of the former couple have given her authorization to speak freely.

What follows is an approximate rendition of the teshuvah.

Firstly, I want to clarify the ex-husband’s obligations to tell about his marital history to a future prospective mate or to a shadchan.

Until he is dating someone very seriously, he is not obligated to forewarn any woman whom he is dating about his previous difficulties and his need for pre-marital therapy. I advise that he tell a prospective bride after a certain number of dates, say three or four, at a point when the woman can evaluate fairly whether she wants to proceed. However, technically speaking, as long as he notifies her at a time that she can back out without creating a publicly embarrassing situation, he has not violated any halacha. In other words, he is not required to tell her until they are ready to become engaged.

Furthermore, he is under no obligation to tell a shadchan about any shortcomings.

In general, I would not recommend setting him up for a shidduch when it is fairly certain that the other party will back out of the shidduch upon hearing about his shortcomings and the necessity for marriage therapy. However, this is only if the shadchan happens to know about the background; as mentioned above, he is not obligated to tell a shadchan.

If the therapist is asked about his first marriage, she should say that what happened does not concern a different, new marriage. Regarding her assessment that, in a future marriage, the ex-husband should have counseling in advance, it is the ex-husband’s obligation to tell the other party, not the counselor’s. If the counselor is confident that he will follow instructions, both in terms of having therapy early in the relationship and in terms of his notifying the other party that this is necessary, she need not say anything. She is obligated to reveal this information only if she is concerned that the man will not tell.

Regarding the ex-wife, in the situation that happened, she was not emotionally prepared to consider dating for marriage, and therefore there was no issue for the therapist. Had the question been asked, I would have told the therapist that if the young woman is not suitable for marriage, yet is pursuing shidduchin anyway, the therapist is responsible to tell those who call her what she professionally feels. It might be better if she can couch the information in a way that is potentially less damaging for the woman. For example, if she is asked about someone specific, she could say that, from her knowing the woman so intimately through therapy, she does not think that this shidduch should be pursued – that the woman needs a different type of man.

She is not required to reveal any information if she could lose her license or get into legal trouble as a result. Instead, she should say that she cannot discuss the matter for professional reasons or any other answer that is legally acceptable. She should not say something that is not true.

I want to share that the answer to this shaylah may vary significantly depending on the circumstances. There are certainly situations in which I would rule differently. This teshuvah is being discussed here only for general direction, and each particular case must be asked specifically.

The second question:

Is it forbidden to tell someone that a person does not observe certain halachos when the person about whom one is talking is not embarrassed or concerned about others finding out their level of observance? For example, may someone who is from an irreligious background tell someone else how far his family is from observing mitzvos when the person being told has no reason to know? Similarly, is it permitted to mention that a woman dresses immodestly in public when obviously she has no concerns that people know?

There is some interesting background to this question. I know a prominent posek who considers these conversations to be prohibited. I have challenged him on the subject, and believe that they are permitted — subject to certain conditions, such as when revealing the information is not harmful to a third party. An example where this would not be permitted might be a case where revealing the information could be harmful to a grandchild, such as if acceptance to a school or a shidduch might be pre-empted because of the now-public knowledge of a grandparent’s lack of observance. This would be prohibited because the Rambam (Hilchos Dei’os 7:5) states that it is loshon hora to say something that may cause harm to a third party, even when it does not reflect badly on him. (I am not judging whether the school or the potential shidduch policy is correct, or even whether it is halachically acceptable. Indeed, such school policy may be highly reprehensible. I am simply presenting the reality that an innocent party could be harmed because certain information is revealed.)

I have observed prominent poskim following the approach that it is permitted to say this without concerns for the prohibition of loshon hora. Furthermore, I contend that, according to the approach of the rav who rules that this is prohibited and considered loshon hora, someone who is opposed to Chassidim may not say that a person is chassidish; someone opposed to any form of Zionism is prohibited to refer to someone as Zionistic, notwithstanding that the person about whom he is talking is quite proud to be chassidish or Zionistic. The rav who disagrees with me indeed contends that these conversations constitute loshon hora if either the speaker or the listener considers this to be negative. I respectfully disagree and do not consider any of these conversations to be loshon hora.

I want to point out that the dispute here may be getting to a basic definition of what is the nature of the prohibition of loshon hora. It is quite clear from the Rambam’s ruling that the prohibition includes sharing information that may harm someone, even if it is inherently not negative about them. Thus, it is fair to say that the prohibition of loshon hora is the harm it brings upon the person about whom it is said.

In the classic situations of loshon hora, when one shares negative information about a third party that the person being told has no need to know, the loshon hora is the negative feeling about this third party that the listening party now knows. Prior to hearing the loshon hora, he was unaware of this damaging information.

Thus, the dispute between myself and the other rav concerns the following: When the person himself is not at all concerned about people knowing that they have unusual beliefs, or that they believe in something that other people disdain, or that they do not consider certain activities to be within the framework of what they are required to do, can there still be loshon hora to inform someone about this activity or belief. The other rav holds that the person’s being unaware that his approach is mistaken does not change the fact that saying over the information constitutes loshon hora. I believe that I can demonstrate that, should the information not be harmful to a third party, it is not loshon hora when the person himself acts this way in public.

Here is the edited responsum that I sent him:

The Gemara (Arachin 16) states, “Rabbah bar Rav Huna said: Anything stated in the presence of three people is not a violation of loshon hora. This is because your friend has a friend, and his friend has a friend.” Rashi explains the Gemara to mean that, once someone revealed information about himself in the presence of three people, it is not loshon hora to repeat this information to others because the revealer assumes that it will become common knowledge. By revealing it before three people, he has demonstrated that he is not concerned that others will find out. The listeners can assume that they have permission to share this information with others, which, had he not told it in the presence of three people, they would not be able to assume.

From this discussion we see that, once someone declares information about himself in public, he assumes that people will find out, and there is no longer any prohibition of loshon hora. Certainly, it follows that telling what someone does in public cannot involve any loshon hora.

However, a superficial reading of a passage of Gemara (Bava Metzia 58b) might lead one to the opposite conclusion. There the Gemara states that everyone whose misdeeds land him in Gehenna will ultimately be released, with the exception of three categories of sinners. One is someone who embarrasses his fellowman in public; another is someone who calls his fellowman by a derogatory nickname. The Gemara asks why we need two such similar categories – isn’t someone who calls his fellowman by a derogatory nickname simply a subcategory of one who embarrasses his fellowman in public? The Gemara answers that the second category includes a situation in which the person is commonly called in public by the derogatory nickname. Rashi explains that, notwithstanding the fact that he is accustomed to the nickname and is no longer embarrassed by it, someone who intends to embarrass him by calling him by this nickname will not be released from Gehenna.

From this we see that, if one intends to embarrass someone, it is prohibited to say something even when it is well known. However, the Gemara passage implies that it is prohibited only when you speak in his presence and your intention is to embarrass him. In the instance of a woman who does not dress according to halachic standard, or someone who holds unconventional positions, when the person is not present, we have no evidence that informing a third party is prohibited. Furthermore, the discussion in Bava Metzia is not concerned about loshon hora, but of embarrassing someone. Therefore, calling someone by a derogatory nickname is forbidden because the person may be embarrassed. However, when someone is proud of what he is doing, even when the action is wrong according to halacha, there is no violation of loshon hora and presumably no violation of embarrassing them. This is even more so true when it is unclear whether the action is wrong.

Thus, we can reach the following conclusion: If one is trying to embarrass a woman who dresses improperly, it is forbidden to reprove her in public for her inappropriate attire. However, there is no prohibition in mentioning to a third party, when the woman is not present, that she dresses inappropriately, provided one does not exaggerate what she does wrong. Exaggerating would certainly be prohibited because one is spreading untruth about what she does.

Can we demonstrate from the story of Miriam that it is prohibited to say something truthful about a third party, regardless of their concern? After all, Miriam was punished for saying loshon hora about Moshe despite the fact that he was not concerned. She thought she was doing the correct thing, since she was convinced that Moshe was in error. The answer appears to be that what she did was loshon hora precisely because she was wrong. In other words, she thought she was planning an appropriate admonition of Moshe for his wrong activity, but since his actions were correct and she was wrong, this constituted loshon hora, even though her violation was beshogeig, inadvertent.

Thus, when the information qualifies as loshon hora, the prohibition is violated even if one did not realize that it is loshon hora. However, if the party himself acts or speaks in a way that the derogatory information is public knowledge, it is permitted to say it, provided one is not intending to embarrass anyone.

The rav who disputed with me feels that, if indeed the information is negative, even if the person himself does not consider it to be so, this may constitute loshon hora.

We are both in agreement that if the speaker said negative things about himself that might harm relatives or others, it is prohibited to repeat these negative things, as per the above-quoted Rambam.

 

 

Eat Kosher!

In chutz la’aretz, this week parshas Shemini is read, which includes much of the Torah’s discussion regarding which species are kosher. Although in Eretz Yisroel this reading was last week, none of the material in this article is outdated.

Eat Kosher!

Question #1: What’s gnu?

Zoe Oligist asked me: “If the wildebeest chews its cud and has split hooves, which of the ten kosher animals is it?”

Question #2: Food for thought

“Am I required to eat each of the kosher species?”

Question #3:

“Is a tzvi a deer or an antelope? For that matter, what is the difference between a deer and an antelope?”

Question #4:

“Must I check a fish for scales each time I purchase one?”

Introduction:

The Torah discusses which species are kosher and which are not in two places, in parshas Shemini and in parshas Re’eih. In parshas Shemini, the Torah introduces the topic as follows: “Hashem spoke to Moshe and to Aharon, saying to them, ‘Speak to the children of Israel, saying, these are the living things from which you may eat. From the animals that are upon the ground: whichever has a split hoof that is separated completely and ruminates among the animals, those you may eat'” (Vayikra 11:1-3). The Torah then explains that species that possess only one of the two kosher signs are not to be eaten, such as the camel, which chews its cud and has a partially split hoof, but is not kosher, since its hoof is not fully separated (Vayikra 11:4). The Torah then provides the rules governing which sea creatures may be eaten. Following this, it lists which birds we may not eat, and then provides the rules regarding which grasshoppers are kosher and which are not.

Parshas Re’eih includes a review of most of the basic laws of kashrus, including a reiteration of which species of animal, fish and bird are kosher for the Jewish palate. The instructions regarding kosher grasshoppers do not appear in parshas Re’eih, but only in parshas Shemini. In parshas Re’eih, the Torah begins its discussion by listing the ten types of beheimah that are kosher, without mention of their kosher signs until later. To quote the Chumash (Devorim 14:4-5): Zos habeheimah asher tocheilu: shor, seh kesavim, veseh izim, ayil, utzvi, veyachmur, ve’ako, vedishon, use’o, vazamer, “these are the animals that you may eat.” The ten that are listed are the only species of mammal that ruminate and have totally split hooves, indicating that they are kosher.

What are these species? We can readily identify some of them: shor is cattle, kesavim are sheep, and izim are goats. However, from that point, the going gets more confusing, since it is unclear whether ayil is an antelope and tzvi is a deer, or vice versa (see Tosafos, Chullin 59b s.v. Veharei Tzvi). (The difference between antelope and deer is that antelope have permanent horns, whereas deer have antlers, which shed and regrow every year.)

What’s gnu?

At this point, let us address one of our original questions. “Zoe Oligist asked me: ‘If the wildebeest chews its cud and has split hooves, which of the ten kosher animals is it?’”

Although I have invented the name of the questioner, this exact query is, indeed, genuine, and was asked of Rav Yehoseif  Schwartz, a unique gadol and poseik of the early nineteenth century (Responsa Rosh Hashoni #18). Most modern Torah authorities would refrain from providing positive identification of the species mentioned in the Torah, other than the five mentioned above. (See, for example, the translation of Rav Hirsch to our verse.) However, Rav Schwartz concluded that yachmur is the wildebeest, also called a gnu, a variety of large antelope native to central and southern Africa. (Whether you refer to this antelope as wildebeest or gnu depends on whether you prefer to use a name whose linguistic origin is Afrikaans, a language that began as a dialect of seventeenth-century Dutch, or Bantu, a family of languages of the native peoples of south and central Africa. From what I understand, the gnu does not mind being called a wildebeest.) Rav Schwartz based his determination on the following: He writes that he had positively identified the other nine species mentioned by the Torah, and he also knew that the wildebeest, being a ruminant with split hooves, is kosher and not one of those nine. Since he did not know what a yachmur is, and he knew that the wildebeest is kosher, simple deductive logic proved that the wildebeest and the yachmur must be the same creature. (By the way, he cites there, authoritatively, Rav Saadiyah Gaon’s identifying the zamer as the giraffe. Although I have read articles claiming otherwise, giraffes chew their cud and have fully split hooves; thus, they are kosher.)

Personally, I have difficulty with Rabbi Schwartz’s method of identifying the yachmur. According to my primitive research, there are 91 species of antelope known to man, all of which are ruminants and have split hooves. There are also many species of deer, all of which are split-hooved ruminants, and a wide variety of species of sheep and goats. In addition, the entire bovine family, including Western domesticated cattle, Indian zebu cattle, musk oxen, Asian water buffalo, African cape buffalo, European bison (also called the wisent), American bison (colloquially, but somewhat inaccurately, referred to as buffalo), and Himalayan yaks are all ruminants and have split hooves. Clearly, since we have enumerated here many, many times the ten species listed by the Torah as kosher, the Torah must be providing us with categories of kosher animals, not specific species. Or, in more accurate words, the Torah’s categorization of species probably varies considerably from that of the zoologist. Therefore, those venturing on an African safari may consider the gnu to be kosher, without necessarily knowing under which of the seven chayos it is classed.

Food for thought

Let us return to the second of our opening questions: “Am I required to eat each of the kosher species?”

To analyze this question, we need two introductions. The first is to try to understand how to translate the Torah’s word tocheilu. This word can be translated into English as You should eat or as You are to eat or as You may eat. If we translate it You should eat or You are to eat, does this mean that there is a requirement to eat each of the kosher species? The midrash halacha on this pasuk, the Sifra, provides one way of understanding these words. There it states, “This teaches that Moshe held each living creature and showed it to the Bnei Yisroel, instructing them: ‘This tocheilu, and this you may not eat’ (Vayikra 11:2, #62 in the Malbim’s numbering).” I deliberately did not translate the word tocheilu here, so as not to bias our understanding of a later passage of Sifra, which I will mention shortly.

The Ramban, in his commentary to the Sefer Hamitzvos of the Rambam, writes that it cannot mean that the Torah requires that we eat these species. And he is not alone. All halachic authorities dating back more than a thousand years assume that the Torah is not commanding that we eat kosher species. The Ramban notes that it is a machlokes between the Behag, who does not count these four mitzvos, and the Rambam, who does. The Ramban explains that the Rambam understood that one who violates the lo sa’aseh by eating a non-kosher species also violates the aseih. On the other hand, the Behag does not count them because there is no positive mitzvah. The Ramban explains that just as a repeated mitzvah does not get counted twice, repeating it as an aseih does not add to the mitzvah count.

Is it a mitzvah?

There is a dispute among the rishonim whether the mitzvah of tocheilu is counted among the 613 mitzvos. The Rambam, both in his Sefer Hamitzvos (positive mitzvos 149), his work on the listing of the 613 mitzvos, and in the Mishneh Torah, counts tocheilu as one of the mitzvos (Hilchos Ma’achalos Asuros, introduction and 1:1). He counts not only this mitzvah, but also three other mitzvos aseih, one to identify kosher fish, another to identify kosher grasshoppers and a third to identify kosher birds (Rambam positive mitzvos 150-152). According to the Sefer Hachinuch, three of these mitzvos are first mentioned in parshas Shemini and therefore counted there, and the last, identifying kosher birds, is mentioned only in parshas Re’eih.

Actually, the Rambam has strong sources in Chazal for his position, since both the Sifra  (Vayikra 11:4, #69 in the Malbim’s numbering) and the Sifrei (Devorim 14:4, #96 in the Malbim’s numbering) state the following: “‘Osah tocheilu, this you may eat, but you may not eat non-kosher animals.’ This teaches me that this is prohibited because of a mitzvas aseih; how do I know that there is a lo sa’aseh? The Torah teaches, ‘The camel, the rabbit, the hyrax, and the pig – from their flesh you shall not eat.’ This includes only these four species; how do I know that I may not eat other non-kosher species? I derive it logically: If there is a lo sa’aseh prohibiting the consumption of the varieties that possess one indication that they are kosher, certainly those that do not possess either indication… are definitely not kosher.” In conclusion, all non-kosher varieties are prohibited directly from the Torah with a mitzvas aseih, and a lo sa’aseh, by virtue of a kal vachomer.

Notwithstanding the above quotation from the Sifra, most other early authorities who count the 613 mitzvos, including the Baal Halachos Gedolos, Rav Saadiya Gaon, and the Ramban, omit these four mitzvos, apparently because they feel that their inclusion as a positive mitzvah does not add any halachic factors.

In order to understand this dispute better, we need to explain some background to the counting of the 613 mitzvos.

The Sefer Hamitzvos includes the Rambam’s listing and explanation of the 613 mitzvos, but also includes an extensive explanation regarding the rules that govern what is included in their listing. The Rambam explains in his introduction to the Sefer Hamitzvos, that he was planning to write a halachic work that would include all the laws of the entire Torah, but realized that before he began writing this sefer halacha, he first needed to explain extensively what is included in the 613 mitzvos and why. (Indeed, the Rambam did write this work, which is the Mishneh Torah.)

Baal Halachos Gedolos

The Rambam mentions that the accepted counting of the 613 mitzvos, prior to his own Sefer Hamitzvos, was that of the Baal Halachos Gedolos, a halachic work authored by Rav Shimon Kaira in the era of the Geonim. (Although the Behag is often cited as the work of an earlier gaon, Rav Yehudai Gaon, since the Halachos Gedolos quotes Rav Yehudai Gaon many times, he obviously cannot be the author.) Subsequent to the Behag’s list, many other authors followed this list, while others amended it in minor ways. In addition, it spawned many liturgical poems. However, it appears that until the Rambam penned his Sefer Hamitzvos, no one disputed the basic approach that the Behag used to determine what counts as a mitzvah.

Why the Sefer Hamitzvos?

The Rambam writes that he realized that if he listed the mitzvos before each section of his Mishneh Torah according to his own list, he would be disputing an accepted approach to Judaism. Thus, he was in a quandary. On the one hand, his Mishneh Torah would be incomplete without listing the mitzvos involved in each of its sections; on the other hand, people might reject his list of mitzvos, unless he explained its rules and why he disputed what had been, heretofore, accepted. For this reason, the Rambam explains, he wrote the entire Sefer Hamitzvos as an introduction to his Mishneh Torah, in order to explain the rules that determine what counts as a mitzvah and what does not.

What difference does it make whether something is a mitzvah or not?

Although many authors discuss what to include in the count of the 613 mitzvos, it is interesting to note that few of them discuss why it is important to know what are the 613 mitzvos.

On the other hand, the Rambam contends that it is essential to a proper perception of Torah to understand the relationship between the halachos of the Torah and the 613 mitzvos. As part of this understanding, the Rambam describes that he decided to structure the Mishneh Torah according to related mitzvah topics, rather than follow the order of the Mishnah. The Rambam then mentions that he decided to precede each section of the Mishneh Torah with an introduction, in which he would list the mitzvos included in that section.

But does it count?

How does this debate affect kashrus? What we have quoted, until now, appears to be a rather theoretical discussion. How does this affect what I eat? To explain this, we need to examine one of the points that the Rambam makes in his Sefer Hamitzvos.

We will continue this article in two weeks.

 

 

 

The Halachos of Borrowing

 

Question: Shattered Shield

“A friend left for a few weeks, leaving me the keys for his car and permission to use it whenever I wanted. The first morning, when I went to get the car, I discovered that the windshield had been shattered by a stone or brick. Am I obligated to replace the windshield?”

Introduction:

Answering this question requires that we understand the legal responsibilities of someone who borrows an item. As always, the purpose of our article is not to offer a definitive halachic ruling, but to present background and knowledge. In this instance, as in all cases, a person should address any particular question to his rav or posek. And, since there are probably two parties involved, to resolve a matter amicably, I suggest that the two of you agree on a specific rav or dayan whose expertise you both recognize.

The Basics:

In parshas Mishpatim, the Torah presents three types of shomrim, people who assume responsibility for other people’s property. The Torah shebe’al peh, our Oral Torah, explains that these are the three categories:

  1. A shomer chinam takes care of someone else’s property without any compensation and has no right to use the item. He is responsible to pay if the item was damaged due to his negligence, or if he used it without permission. If there are factual issues that are unresolved, such as determining whether the shomer was negligent, the owner may insist that the shomer swear a shevuah, an oath, to exonerate himself from liability. This last rule, that the owner is not required to accept the shomer’s version of what happened without corroborating evidence, is true also in regard to the other shomrim that we will soon discuss.

In recent history, batei din have been reticent about requiring someone to swear an oath, and therefore a beis din might effect a financial compromise in lieu of an oath.

  1. A shomer sachar is one who takes care of an item and receives financial benefit. He is liable if the item is lost or stolen, but he is not obligated if it became lost or damaged for some reason beyond his control, which includes, for example, armed robbery.
  2. A sho’eil borrows an item, receiving benefit without providing the owner with any compensation. As stated in the Mishnah (Bava Metzia 93a), a sho’eil is obligated to pay for any damage that happens to the item, even if it is completely beyond his control. The obvious reason why this is so is that since the sho’eil received benefit from the item gratis, he must make sure that he returns what he received, paying its full value, if need be.

Notwithstanding this obligation on the part of the borrower, there are two exceptional situations where the item is damaged, stolen or destroyed and the sho’eil is not obligated to make compensation. These are:

  1. Meisah machmas melacha, literally, the item or animal “died” or became damaged in some way as a result of the work for which it was borrowed. We will soon explain the rationale for this. In addition, the borrower is exempt only when he used the item without abusing it.
  2. Be’alav imo, the owner of the borrowed item was in the employ of the borrower at the time of the loan (Mishnah, Bava Metzia 94a).

Verification

As noted above, should there be a question about verifying the facts, whether the circumstances were indeed a case of meisah machmas melacha, the lender may demand that the borrower swear an oath to verify them. Also, if the event occurred in a time and place that there should have been eyewitnesses, the lender may insist that the borrower produce witnesses to verify what happened, rather than be satisfied with an oath.

In this context, the Gemara records the following din Torah (Bava Metzia 97a): A man borrowed a bucket that broke while he was using it. The two parties appeared before Rav Papa to adjudicate whether the borrower was obligated to pay. Rav Papa ruled that this is considered meisah machmas melacha. However, he first asked the borrower to produce witnesses that he did not use the bucket in an unusual fashion, for if he used it in an unusual way, the exemption of meisah machmas melacha would not apply.

Kinyan

There is a basic dispute among the rishonim concerning whether a shomer becomes liable as soon as he agrees to the arrangement (Rosh, Bava Metzia 8:15), or only when he makes a kinyan on the borrowed item (Raavad, quoted by Shitah Mekubetzes, Bava Metzia 98b). Kinyan refers to the act that effects loans, rentals, transfers of ownership of property and other legal agreements. In our situation, this question arises in the event that the borrowed item was left in the shomer’s care, but he never lifted, moved or did anything else that would legally make the item “his.” Some rishonim hold that the shomer becomes responsible only when he performs a kinyan, whereas others hold that he becomes responsible even when no kinyan is performed.

Among the halachic authorities, this matter is disputed by the Shulchan Aruch and the Rema, the latter ruling that a shomer becomes legally responsible as soon as he agrees to the arrangement (Choshen Mishpat 340:4).

In the case of an automobile, driving the car off when someone borrowed it constitutes a kinyan. According to some rishonim, taking possession of the keys is also a kinyan, but this is a minority opinion (see Rashi, Pesachim 4a, as explained by Korban Nesanel).

With this background, let us now examine our opening question:

Shattered Shield

“A friend left for a few weeks, leaving me the keys for his car and permission to use it whenever I wanted. The first morning, when I went to get the car, I discovered that the windshield had been shattered by a stone or brick. Am I obligated to replace the windshield?”

The damage caused here had nothing to do with the sho’eil, but, as we explained before, he is obligated to make compensation even then. However, according to the opinion that a shomer is not obligated until he makes a kinyan on the item, if the borrower did not drive the car, he has not yet become obligated. Thus, he would be exempt from paying for the damages, according to that opinion, which is the way many halachic authorities rule.

Establishing a condition

It is important to note that the system explained above regarding the responsibility of shomrim applies only when the two parties did not establish their own policy. However, if a sho’eil tells the owner that he is not assuming responsibility and the owner agrees, or if a shomer chinam assumes total responsibility, or if any other arrangement is made that both parties accept, that agreement will govern what liability exists (Mishnah, Bava Metzia 94a). Similarly, an agreement may also be made to eliminate any obligation on the shomer to swear an oath to verify the facts (ibid.).

Therefore, if a shomer chinam wants to avoid any potential liability, either to pay or to swear an oath, he should tell the owner that he will gladly watch the item, but that he is assuming no responsibility for the item, even should he be negligent, and that the owner must relinquish his right to have the shomer swear to prove his innocence. A sho’eil may make a similar condition before he borrows the item. However, bear in mind that if the sho’eil does make such a precondition, the owner may refuse to lend him the item. Since the sho’eil is aware of this, he is usually reluctant to make such a precondition. Our article is discussing the halacha that applies when they do not make their own arrangements.

Be’alav imo and Meisah machmas melacha

We mentioned above that a sho’eil is obligated to pay for all damages that happen to the item he borrowed, with the exception of two cases: meisah machmas melacha and be’alav imo. It is interesting to note that these two exemptions are, in one way, complete opposites. The exemption of be’alav imo is expressly mentioned in the Torah and thus fits the halachic category that we call gezeiras hakasuv. In this case, this means that attempts to explain the reason for this law will not affect the halacha. (Although the commentaries present many reasons for be’alav imo, these reasons will not change the halacha – they may qualify under the general heading of lo darshinan ta’ama dikra, we do not derive halachic conclusions based on reasons for mitzvos. Because of space considerations, we will not discuss in this article the topic of darshinan ta’ama dikra and how it relates to be’alav imo.)

On the other hand, since the exemption of meisah machmas melacha is never mentioned in the Torah shebiksav, we assume that the basis for this law is logic. Chazal understood that the sho’eil is not obligated to pay for an item that was damaged as a result of expected use.

The question is why this rule is true when the Torah obligates the borrower to replace the item, even should it be destroyed by a complete accident over which he had no control. The Gemara, when explaining this idea, states very succinctly that the animal was not borrowed for it to have a vacation. There are several ways to understand this statement of the Gemara. I will now present four of them.

Lender’s negligence

Among the halachic authorities, we find several approaches to explain the phenomenon of meisah machmas melacha, and there are differences in practical halacha that result. The Ramban explains that the reason for meisah machmas melacha is because the lender is considered negligent. He should have realized that his object or animal could not withstand the work for which he was lending it! Since he did not check this out, he has no claim on the borrower to replace it (Ramban, Bava Metzia 96b, quoted by Beis Yosef, Choshen Mishpat 340). For ease of presentation, we will refer to this approach as lender’s negligence.

Wear and tear

A second approach is that the person lending an item knows that there will be a certain amount of wear and tear, and he does not expect to be reimbursed for this (Nimukei Yosef, Rosh as explained by Machaneh Efrayim, Hilchos She’eilah Upikadon #4). If the animal or item could not withstand normal use, this is an extension of the wear-and-tear principle.

Mechilas hamash’il

A third reason is that when lending an item, one knows that the item can become damaged while it is being used, and this is included in the mechilah implied by the loan. This approach contends that a sho’eil is exempt when damage occurs as a result of the loan, even when it cannot be attributed to wear and tear. For example, the borrower told the owner that his intent is to take a trip to a certain place, which he did, and while there the animal was stolen (see Ramah, quoted by Tur, Choshen Mishpat #340). Since the owner knew the animal was being borrowed to take it to a specific place, any damage that happens because of that place is included as meisah machmas melacha, according to this third opinion. I will henceforth refer to this approach as mechilas hamash’il, meaning that, in advance, the lender forgives damage that occurs while the item is being used.

Of the three opinions cited so far, only the third exempts the sho’eil from paying when an animal is stolen. The previous two opinions both contend that meisah machmas melacha can include only damage that was a result of normal, expected work. According to the reason of lender’s negligence, the owner was not negligent if the animal was stolen, and, according to the wear and tear reason, the loss from theft was not a result of use.

Mekach ta’us

A fourth approach, mentioned in acharonim, is that when someone borrows an item or animal, he accepts responsibility only because he assumes that it can withstand the work for which he borrowed it. If it is incapable of performing that task, then we assume the borrower never assumed responsibility (Machaneh Efrayim, Hilchos She’eilah Upikadon #4). I will call this approach mekach ta’us, that the implied “contract” of responsibility was never agreed to by both parties.

To simplify our four approaches, they are:

  1. Lender’s negligence: The lender was negligent in not checking the item’s condition before lending it.
  2. Wear and tear: Lending includes the assumption that a borrower is not responsible for normal use.
  3. Mechilas hamash’il: The lender assumes responsibility for damage that resulted from the loan.
  4. Mekach ta’us: The borrower never assumed this responsibility.

Practical differences

Are there practical differences that result from this dispute? Indeed, there are many. Here is an early example: The Tur (Choshen Mishpat 340) quotes a dispute between the early rishonim, the Ramah (Rabbi Meir Abulafia, an early rishon living in Spain, not to be confused with Rabbi Moshe Isserlis, the Rema, who lived in Poland over three hundred years later, whose notes to the Shulchan Aruch we will be quoting shortly) and the Rosh, concerning the following case: Someone borrowed an animal for a specific trip, and the animal was stolen on the trip by armed robbers. The Ramah rules that this is considered meisah machmas melacha and the borrower is not obligated to pay, whereas the Rosh rules that it is not meisah machmas melacha and he is obligated to pay.

A careful study of the way the Tur presents the dispute implies that the Ramah assumes that the lender was mocheil any damages expected to happen as part of the lending (approach #3 above, mechilas hamash’il), whereas the Rosh assumes that the lender is mocheil only on expected wear and tear (approach #2 above, wear and tear). The Ramah appears to understand that any damage that results from the loan is included under meisah machmas melacha. (The approach to explain this dispute is presented by the Machaneh Efrayim.)

How do we rule?

The Shulchan Aruch (Choshen Mishpat 340:3) rules according to the Ramah: When the animal was stolen by armed robbers during the time that it was borrowed, the borrower is exempt from making compensation, because it is considered a case of meisah machmas melacha.

On the other hand, the Rema cites the Rosh’s opinion. The Shach agrees with the halachic conclusion of the Rema in this case, because he feels that the Ramban’s approach (#1 above, which I called lender’s negligence) should be followed, and this approach is in agreement with the Rema’s position in this case.

Playing cat and mouse

The following interesting case is mentioned in the Gemara (Bava Metzia 97a): Someone’s house was infested with mice, and the owner wanted to use an inexpensive, safe and environmentally-friendly way to eliminate the problem. He borrowed a neighbor’s cat to “exterminate” the mice.

Strength in numbers

The Gemara tells us that a very unusual thing happened. The mice gathered together and launched a counterattack on the cat, killing it! The question now was whether the borrower was required to compensate the lender for the deceased cat, and the matter became the subject of one of the most famous dinei Torah in history, presided over by Rav Ashi. The conclusion was that the borrower was exempt from paying, because this is a case of meisah machmas melacha.

Contemporary case

In a contemporary work, I found discussion about the following case: Reuven borrowed a car for a day. While he was driving the car, a child darted into the street in front of the car. Reuven braked, fortunately succeeding in avoiding striking the child. However, a truck behind him was following too closely. The truck hit the car, severely damaging it, and then escaped without providing any identifying information (hit and run) – leaving Reuven with a damaged, borrowed car. To complicate matters, the owner was not carrying collision insurance that would cover the damage. Is Reuven obligated to pay the owner for the damage?

According to the Ramban, approach #1, that meisah machmas melacha is exempt because the lender was negligent, Reuven is certainly obligated to pay. Although the damage was completely accidental, a sho’eil is obligated to compensate for accidental damage that happened while the item is in his care. Meisah machmas melacha does not apply, according to this approach, because the automobile was not deficient in any way.

The same halacha is true according to the Rosh (approach #2), who contends that the law of meisah machmas melacha exempts only wear and tear, which was not the cause for the damage. Furthermore, according to the fourth approach  (mekach ta’us) Reuven is obligated, again, because the automobile was in fine condition when he borrowed it.

However, what is the law according to the third approach, that I called mechilas hamash’il? This approach contends that an owner is mocheil any damage that might result from the loan. A contemporary author that I saw ruled that, according to this opinion, the sho’eil would be exempt from paying in this instance, since the damage happened as a result of the loan (Mishpetei HaTorah 1:35).

Conclusion

As we can see, the laws regarding responsibility for items are very complex and sometimes lead to surprising conclusions. In general, we should be vigilant when we assume responsibility for items belonging to others. A Torah Jew observes his contractual commitments with trust and faith. He certainly realizes that Hashem’s Torah is all-encompassing and directs every aspect of his life, certainly the details of his financial dealings.

 

No Leg to Stand On

Question #1: Placing my feet

“If the wheel of a stroller falls off on Shabbos, may I slide it back?”

Question #2: A benched bench

“If one leg fell off a bench, may I place the bench on top of another so that people can sit on it on Shabbos?”

Question #3: Pulling my leg

While in shul the first day of Sukkos, I noticed that one of the legs of the shulchan on which the sefer Torah is read was loose and fell off. I then noticed that the gabbai used his foot to push the leg underneath the shulchan to keep it balanced, apparently something he has been doing fairly frequently. As I will explain, I was concerned that the entire shulchan and the leg might be muktzah because of a special decree of Chazal. But first we need an introduction.

Answer

The manufacture of the mishkan and the vestments of the kohanim, discussed in parshas Tetzaveh, provides the source for the 39 melachos, categories of prohibited activities, of Shabbos. One of the activities prohibited min haTorah on Shabbos is repairing an appliance in a permanent, professional way. The early authorities dispute under which melacha heading this activity is included, some considering it to be a type of boneh, constructing, whereas others incorporate it under makeh bepatish, the melachah involved when completing construction of an item. According to both opinions, repairing an appliance in a permanent, professional way is prohibited min haTorah.

Since repairing an appliance in a permanent way is prohibited d’Oraisa, Chazal prohibited other activities that might lead one to violate the Torah law. Here is an example: In the days of Chazal, a kirah was a type of low, earthenware stovetop that rested on short legs that kept it balanced on the ground. A fire was constructed either inside the kirah or beneath it in a small trough dug into the ground. The Gemara (Shabbos 138b) teaches that if the legs of the kirah became detached, the entire stovetop is muktzah, out of concern that one might forget and insert the legs in a permanent way, an act that is prohibited min haTorah.

At this point, we can already understand the question that was raised above regarding the shulchan with a broken leg. Just as the stovetop is muktzah because of its missing leg, perhaps the same is true regarding the shul’s shulchan. Answering this question will require that we delve into this and other related passages of Gemara, and then study what the early commentators write about this topic – so let us roll up our sleeves. As in all our articles, it is not our purpose to render a final halachic decision – that is the role for an individual’s rav or posek. Our goal is to elucidate the topics in order to enable our readers to be able to ask an intelligent shaylah and understand the answer well.

Rav versus the beraisa

Let us begin by examining the Gemara more carefully (Shabbos 138b):

Rami, the son of Yechezkel, asked Rav Huna to review for him three rulings that Rav Huna had heard directly from the great amora Rav, whose name refers to his role as the teacher of all of Klal Yisroel. One of these rulings was: A beraisa (an ancient teaching dating from the era of the tanna’im that was not included in the Mishnah) ruled that a kirah of which two legs became detached is muktzah and may not be used on Shabbos, whereas if only one leg slipped out of place, the kirah may still be used. According to our text of the Gemara, Rav disagreed with the beraisa, contending that if even one leg slipped out of place, the stovetop cannot be moved because of concern that one might reinsert the leg on Shabbos in a permanent way. This text does not reveal why the beraisa contended that one may move a kirah if it is missing only one leg but not if it is missing two.

Among the early rishonim, we find three ways to explain this passage of Gemara:

According to the Ran, the dispute between the beraisa and Rav relates to whether we need to be concerned that someone might insert the leg in a permanent way when only one leg is missing (Ran’s commentary on Rif ad loc.). Presumably, when two legs are missing, the stovetop is difficult to use, and, therefore, the beraisa was concerned that someone might mistakenly insert the two legs in a permanent way, thus desecrating Shabbos. However, when only one leg is missing, since one can use the stovetop by balancing it on its remaining legs, Chazal did not ban using it. Rav disagreed, concerned that even one missing leg might cause someone to repair it in a way that desecrates Shabbos.

A second approach to understanding the beraisa is that of the Aruch, who holds that the beraisa itself was not concerned that someone might repair the stovetop in a way that desecrates Shabbos. The beraisa held that a stovetop missing two legs is muktzah for a completely different reason: It is considered useless with two missing legs, and a useless item is muktzah on Shabbos. Rav is concerned that someone might forget and repair the stovetop in a permanent way, and this concern exists even if only one leg is missing (quoted in the margin of the Gemara in the glosses added by Rav Yeshaya Pik).

A third approach is that of Rashi, who apparently had in front of him a text of the Gemara that varies from what is printed in our editions. His text omits three words that we have in our Gemara, including the words that Rav disagreed with the beraisa. According to his version, there is no dispute in the Gemara and no one prohibits using a stovetop that is missing only one leg. The beraisa ruled that one may not use a stovetop missing two legs, and Rav explained the reason: We are concerned that someone may insert the legs in a permanent way (see Maharshal and Maharam, Shabbos 138b).

According to Rashi, a stovetop missing one leg is not a cause for concern that someone may repair it on Shabbos and, therefore, Chazal did not rule it to be muktzah. Following this approach, there should similarly be no problem with the shulchan that I found to be missing a leg. However, based on the text that we have in our Gemara, all other halachic authorities conclude that if even one leg is missing, the stovetop is muktzah. This ruling is codified by the Rif, Rambam (Hilchos Shabbos 26:6), Rosh, Tur and Shulchan Aruch (Orach Chayim 308:16). Thus, it would seem that our shulchan may indeed be muktzah. We will return to this dispute among the rishonim shortly.

A benched bench

Based on the above quoted passage of Gemara, we find that an early authority, the Terumas Hadeshen, prohibited using on Shabbos a bench missing one of its legs – even by resting the bench on top of another bench or chair. This is because of concern that one might forget and repair the bench (Terumas Hadeshen 1:71). And, according to late authorities, the rulings that we have seen applied to stovetops and benches apply to other tools and furniture with similar issues. For example, although it is permitted to use a hammer on Shabbos to open a coconut, if the head of the hammer fell off before Shabbos, the entire hammer is now muktzah and thus forbidden even for what would otherwise be a permitted purpose. This is because of a concern that someone may re-attach the head in a permanent way, which would desecrate Shabbos (Ketzos Hashulchan 109, Badei Hashulchan #10, at end).

To sum up: We see that Chazal were concerned about someone using a broken appliance because he might forget and, without thinking, repair it in a way that is prohibited min haTorah. To avoid this problem, they prohibited moving the appliance.

We can now explain the concern that I had about the shul’s shulchan. Since the shulchan had a leg that fell off, is the shulchan now muktzah?

Complicating the question

Circumstances complicated the question that I had raised regarding the loose shulchan leg. I discovered the problem on the first day of Sukkos, which means that the coming days are chol hamoed, Shemini Atzeres and Simchas Torah. Since repairing the shulchan in a professional manner is prohibited on chol hamoed, the repair would have to be postponed until after Yom Tov. However, on Simchas Torah the shulchan will be moved in order to accommodate the dancing. How are we going to do this if the shulchan is muktzah?

Conflicting passage

Although the above-quoted discussion would lead us to conclude that a damaged appliance that might accidentally be repaired is muktzah, other rulings of Chazal indicate that this is not always the case. A different passage of Gemara quotes a beraisa that one may remove the door of a cabinet, footlocker or bookcase on Shabbos, but one may not reaffix the door afterward, because of concern that one might hang it in a permanent way, which would desecrate Shabbos min haTorah (Shabbos 122b). However, there is no mention that these appliances or their doors may not be moved because of concern that someone will reaffix the door in a permanent way. In other words, although the Gemara prohibits reaffixing the door, it permits use of the cabinet, footlocker and bookcase and of their doors. Thus, although a broken kirah is muktzah, these appliances are not, despite the fact that we are concerned that someone might reaffix their doors in a permanent way. What is the difference between the two cases?

Similarly, we find a passage in Gemara Eiruvin (102b) that demonstrates the same point. There the Gemara records that if a hinge of the door of a cabinet, footlocker or bookcase is slipping out of place, one may push it back into place, but if it has completely slipped out of place one may not put it back, because of a concern that someone will mistakenly repair it in a permanent way, which, as we noted above, is prohibited min haTorah. Again here, although the Gemara prohibits reaffixing the hinge, the appliance itself does not become muktzah. Thus, we see again that the appliance may be moved as long as no one attempts to reaffix the door or the hinge. This contrasts with the cases of the stovetop leg where the Gemara ruled that the entire stove becomes muktzah.

Stoves versus footlockers

How is a stove different from a footlocker?

One might explain the difference between the case of the stove and that of the footlocker as being that it is difficult to use the stove at all without its leg, whereas the cabinet, footlocker or bookcase can be used without its door or hinge operating properly. We can explain this phenomenon as meaning that when someone has an appliance that is functional, he is less likely to forget and repair it on Shabbos. Although Chazal prohibited reaffixing the hinge or door in a temporary fashion, they saw no reason to prohibit using the appliance. On the other hand, since the stove could be used only with difficulty, Chazal prohibited its use altogether, concerned that even using the appliance might cause someone to repair it in a permanent way. Based on this analysis, we can understand why the Terumas Hadeshen banned the use of the bench, since, as it is now, it cannot be used without being repaired.

Return to the shulchan

According to this analysis, it would appear that the shulchan missing a leg should not be muktzah, since the shulchan can be used while missing a leg, notwithstanding the fact that it will obviously be somewhat wobbly. Thus, we can assume that Chazal would not have been concerned that someone might mistakenly repair it in a permanent way.

In addition to the reasoning we have just presented, there are several other reasons why this shulchan should probably not be muktzah. The first reason is based on the fact that the shulchan has already been used without having its leg repaired. This approach is based on the following ruling of the Rema. When he quotes the Terumas Hadeshen’s case (of the bench missing a leg) as definitive halachah, the Rema adds, however, that if the bench had been used before Shabbos by placing one end on top of another bench, one may use the bench and move it on Shabbos. Thus we see that when the appliance has already been used in its compromised status before Shabbos, we are not concerned that someone may mistakenly repair it on Shabbos. Since the shulchan was apparently being used with the broken leg propped up, one could argue that the Gemara’s concern does not apply.

Major repair

I believe that there is yet another reason why we do not need to be concerned about the damaged shulchan leg. The Taz (Orach Chayim 308:14) explains that, notwithstanding that a kirah whose leg or legs have fallen out may not be used, this is not true if the entire leg of the stovetop was lost, or the leg broke in the middle, rather than having fallen out. The reasoning here is as follows. Reaffixing a leg into an appliance in a permanent way is something that can be done relatively easily. This is why Chazal were concerned that someone might repair this item without realizing that it is prohibited to do so on Shabbos. However, repairing a leg that has broken is more complicated. We are confident that someone who considers making this repair will remember that it is Shabbos before he attempts it. The same is true if the leg is missing completely, since this requires fashioning a whole new leg that is the right size, appearance, and strength. Since this is a more complicated repair, we are not concerned that someone will forget it is Shabbos and do it. The Mishnah Berurah (308:69) rules in accordance with this Taz¸ that in these two situations one may use the stovetop.

In our case of the shul’s shulchan leg, it appears that reinserting it is a complicated task requiring specialized skills and would require the skills of a repairman. If that is so, it would seem that we could be lenient to assume that Chazal did not make the broken shulchan muktzah unless someone could easily make the repair on his own.

Why are we moving it?

Until now, we have not discussed whether the reason that one wants to move the broken shulchan, bench or stovetop affects whether one may move them. In point of fact, some authorities maintain that the prohibition of moving the broken stovetop is only when one wants to use it. Chazal prohibited not only using the stovetop but also moving it. However, there are late authorities who contend that it is permitted to move a kirah whose leg fell out if one is not interested in using the kirah, but its location is needed for another item or because it is in the way of something one needs to do (Ketzos Hashulchan 109:10 in Badei Hashulchan, at end; see also Tehillah Ledavid 308:22). They rally proofs to show that when Chazal prohibited moving a broken stovetop, the prohibition was only when one wants to use it, but that one may move it if one needs its place. In halachic terminology, it is prohibited to move the broken kirah or bench letzorech gufah (literally, for its own sake), but it may be moved letzorech mekomah (literally, for the purpose of its place). Thus, if the broken stovetop was being moved in order to make room for the Simchas Torah dancing, these authorities would permit moving it.

We should note that this question may be dependent on a dispute we quoted at the very beginning of our article between the Aruch and the Ran, whether a kirah with two detached legs is muktzah because one may come to repair it, or because it is no longer functional. If the reason not to move it is because of concern someone will repair it, it stands to reason that this concern exists only when one wants to use it. However, when one moves it to get it out of the way, why should moving it cause someone to mistakenly repair it? On the other hand, if it is muktzah because it is useless, then it makes no difference why one chooses to move it – it is prohibited to do so because the item is muktzah (Tehillah Ledavid 308:22).

In conclusion

Although I initially thought that the shulchan with a broken leg presented a serious problem, my personal conclusion was that the shulchan could be used and moved as is. I am very glad to have noticed the shaylah, because it provided me with the opportunity to research the question thoroughly and to provide our readers with the extensive background that this question entailed. Again, I note that if our readers are faced with a similar, actual question, they should pose it to their own rav or posek.

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. On Shabbos, we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Shemos 20:11). By refraining from building for one day a week, we acknowledge the true Builder of the world and all that it contains.

 

 

Carrying Him Home

According to some commentaries, the source for some of the laws regarding the prohibition of carrying on Shabbos is in this week’s parsha. This certainly provides an excellent reason to discuss:

Carrying Him Home

Question #1: My son

“We were returning home in an area without an eruv, when my two-year old decided that he was walking no farther. Is there a halachically acceptable way for me to carry him home?”

Question #2: Public safety

“There is something dangerous lying in the street. May we remove it on Shabbos before anyone gets hurt?”

Question #3: Tefillin

“While taking a Shabbos stroll through the woods outside my town, I discovered some pairs of tefillin lying on the ground! Presumably, these were taken by thieves who broke into a shul, but subsequently abandoned them. Is there any way that I can bring these tefillin back to town?”

Answer:

All of the above questions involve carrying something on Shabbos in a place where there is no eruv. Our topic will be whether there is a halachic basis to permit carrying under these circumstances. As always, the purpose of this article is not to render decisions for our readers, but to introduce background and have the reader refer any related questions to his or her rav or posek. But first, some basic background.

What is “carrying”?

As we know, one of the 39 melachos of Shabbos is hotza’ah, which is violated by transporting an item from a reshus harabim, a public thoroughfare or open marketplace, into a reshus hayachid, an enclosed area, or, vice versa, by transporting from a reshus hayachid to a reshus harabim. The melacha also includes carrying or otherwise transporting items four amos (about seven feet) or more within a reshus harabim (Shabbos 96b; Tosafos, Shabbos 2a s.v. pashat). With reference to the laws of Shabbos, the terms reshus hayachid and reshus harabim are not determined by ownership, but by the extent to which the area is enclosed and how it is used. An area could be either publicly-owned or ownerless and still qualify as a reshus hayachid; an area owned by an individual might still qualify as a reshus harabim.

Akirah and hanacha

Violating this melacha min haTorah is defined by three steps.

(1) The first step is called akirah, literally, uprooting, which means removing the item from a place where it is at rest. The item must be at rest before the melacha is performed. “At rest” does not have to mean that it is on the ground – it could be resting on an item or piece of furniture, and, sometimes could even be “resting” in someone’s hand. Removing it from its “place of rest” qualifies as an akirah.

(2) The second step is the actual movement of the item, as described above.

(3) The final step is called hanacha, placing, which means that when the melacha activity is completed, the item is again “at rest.”

Let me use the first Mishnah of Maseches Shabbos for examples that explain these rules: One person, whom we will call “the outsider,” is standing in a reshus harabim, picks up an item that is located in the reshus harabim and passes it to someone in a reshus hayachid, “the insider.” If the outsider places the item into the hand of the insider, then the outsider has violated Shabbos – he (1) performed the akirah, (2) transported the item from a reshus harabim into a reshus hayachid and (3) performed the hanacha. Placing the item into the insider’s hand is considered hanacha, since the item is now “at rest,” and, when it reaches its resting point, it is in the reshus hayachid.

However, if the outsider merely extends his hand containing the item into the reshus hayachid, and the insider takes the item from the outsider’s hand, neither of them has performed a Torah violation of Shabbos. Although the outsider performed akirah and moved the item into the reshus hayachid (thereby performing steps 1 and 2), he did not complete the hanacha (step 3). Since the item was still in the suspended hand of the outsider, who himself was standing in a different area, it is not considered to be at rest in a reshus hayachid.

In this situation, the Mishnah explains that neither the outsider nor the insider has violated a melacha min haTorah. Nevertheless, both have violated rabbinic prohibitions, because Chazal prohibited performing akirah without hanacha and also prohibited performing hanacha without akirah. In addition, Chazal prohibited carrying something in the reshus harabim without either akirah or hanacha, and transporting something from a reshus hayachid to a reshus harabim, or vice versa, without akirah or hanacha.

Akirah and hanacha both within a reshus harabim

Similarly, the Torah’s prohibition to carry something or otherwise transport it four amos or more within a reshus harabim is only when there is both an akirah and a hanacha. If one transports it more than four amos, but did not perform both an akirah and a hanacha, the prohibition is only miderabbanan. Thus, if someone picks up an item in a reshus harabim, carries it four amos, but did not stop, and a different person removes it from his hand, neither of them has desecrated Shabbos min haTorah, although both violated rabbinic prohibitions for performing part of the melacha act.

What is a hanacha?

Here is another example of a case where no hanacha was performed. Someone picks up a bundle in a reshus harabim, places it on his shoulder, and walks with it more than four amos. At this point, he stops to adjust the bundle. The Gemara (Shabbos 5b) teaches that this is not considered a hanacha, and therefore the person has not desecrated Shabbos min haTorah.

However, if the person carrying the bundle stopped to rest, it is considered hanacha. (We will explain shortly what we mean that he “stopped to rest.”) Therefore, if he performed an akirah, carried a bundle more than four amos in a reshus harabim and then stopped to rest, he has performed a melacha, whereas if he stopped simply to rearrange his bundle and then continued on his way, he did not yet perform a melacha.

Less than four amos

In addition to the requirements of akirah and hanacha, one violates the melacha of carrying within a reshus harabim only when one transports the item at least four amos. Carrying an item less than four amos, called pachos mei’arba amos, in a reshus harabim does not violate Torah law. Whether this is prohibited by the Sages is the subject of a dispute among tana’im. According to the Rambam, it is permitted even miderabbanan to move an item less than four amos in a reshus harabim, whereas according to the Raavad, this is prohibited miderabbanan, except in extenuating situations.

A lenient hanacha

Until now, both akirah and hanacha have been sources of stringency, meaning that they have created a Torah prohibition, and without both of them, one does not violate the melacha of carrying min haTorah. However, there is actually a leniency that can be created by performing a hanacha. Here is the case: Someone transported an item less than four amos through a reshus harabim and then performed a hanacha, thereby completing this act of carrying. He then performs a new akirah and carries the item an additional short distance, but again less than four amos. Although, as we will soon see, it is prohibited to do this on Shabbos, there is no violation min haTorah; each time he carried the item, it was for less than four amos, since the two acts were separated by a hanacha.

Pachos pachos

What is the halacha regarding the following scenario: Reuven notices an item in a reshus harabim that he would like to move to a different location, more than four amos from where it currently is. He knows that it is prohibited min haTorah for him to pick it up, move it there, and put it down in its new location, since this constitutes akirah, moving it more than four amos, and hanacha. Instead, Reuven decides to do the following: he will pick up the item, move it less than four amos and put it down. Although he did both an akirah and a hanacha, since he moved the item less than four amos, this does not constitute a Torah violation, and, according to many rishonim, it is permitted lechatchilah. However, moving the item less than four amos does not accomplish what Reuven wants. In order to get the item to where he would like it to be, Reuven performs this process again – that is, he picks it up, moves it less than four amos, and puts it down again. This type of carrying is called pachos pachos mei’arba amos, meaning that although each time he carries the item he transports it less than four amos, he carries it this way more than one time. Reuven would like to repeat this process until he gets the item where he wants it. Is this permitted?

Indeed, Reuven’s plan will avoid desecrating a Torah prohibition of Shabbos, since he has successfully avoided performing melacha. However, Chazal prohibited someone from transporting an item this way out of concern that he may err, even once, and carry the item four amos or more and then perform the hanacha, thereby violating Shabbos min haTorah (Shabbos 153b).

However, the Gemara mentions that, under certain extraordinary circumstances, someone is permitted to transport an item in this manner. For example, someone walking through a reshus harabim discovers a pair of tefillin! He is concerned that, should he leave the tefillin where they are, they will be desecrated. The Gemara rules that, should the finder have no other option, he may transport the tefillin to a secure place via pachos pachos (Eruvin 97b). In other words, in order to avoid the desecration of the tefillin, Chazal relaxed the prohibition of carrying pachos pachos.

Babies and thorns

Similarly, the Gemara discusses this in the context of a baby who is outside of an eruv, and permits use of the heter of pachos pachos to transport him to an appropriate place.

In yet another example, the Gemara permits removing a thorn from a reshus harabim so that no one gets hurt (Shabbos 42a). Again, in an extenuating situation, Chazal permitted one to carry this way, even though it is usually not permitted.

At this point, we can address a different one of our above questions: “There is something dangerous lying in the street. May we remove it before anyone gets hurt?”

The answer is that one may remove it by carrying it less than four amos, stopping, and then repeating, as described above.

Must he sit down?

As I explained above, transporting something pachos pachos can be accomplished only when there is a proper hanacha to divide the two carrying acts into two separate halachic activities. What constitutes a proper hanacha in this instance?

There is a dispute between rishonim whether, in this instance, the person transporting the tefillin must sit down, or whether it is sufficient that he stop to rest while remaining standing.  Rashi (Avodah Zarah 70a) rules that it is sufficient for someone to stop to rest within four amos of his last stop. He does not explain how long he must rest for it to be considered a hanacha.

There are those who disagree with Rashi, contending that stopping to rest qualifies as a hanacha only when one truly wants to rest. However, when one’s goal is not to rest, but simply to avoid desecrating Shabbos, stopping of this nature while still standing does not constitute hanacha. According to this opinion, to avoid the prohibition of carrying on Shabbos, the tefillin transporter must actually sit down to qualify as having performed hanacha (Rabbeinu Yerucham, quoted by Beis Yosef, Orach Chayim 266 and 349, as explained by Magen Avraham 266:9).

How do we rule?

There is a dispute among early acharonim whether we follow Rashi or Rabbeinu Yerucham in this matter, but the majority follow Rashi’s approach that stopping to rest is adequate as a hanacha, even in this situation (Darchei Moshe, Orach Chayim 266:1; Magen Avraham 266:9; cf. Taz, Orach Chayim 266:4 who rules like Rabbeinu Yerucham).

Found tefillin

At this point, we can address one of our opening questions: “While taking a Shabbos stroll through the woods outside my town, I discovered some pairs of tefillin lying on the ground! Presumably, these were taken by thieves who broke into a shul, but subsequently abandoned them. Is there any way that I can bring these tefillin back to town?”

In this context, the Gemara rules that if one cannot safely remain with the tefillin until Shabbos ends, one may bring them back via the method of pachos pachos, meaning that one carries the tefillin for less than four amos, stops to rest, and then continues. According to Rabbeinu Yerucham, one should actually sit down when one stops to rest, whereas according to Rashi, this is unnecessary.

Karmelis

Until this point, we have been discussing the halachic rules that exist min haTorah, and we have dealt with areas that are either reshus harabim or reshus hayachid. However, there are many areas that do not qualify as either reshus harabim or reshus hayachid. A reshus harabim must be meant for public use or thoroughfare (Shabbos 6a) and must also meet other specific requirements, which I discussed in a different article. Any area that does not meet the Torah’s definition of a reshus harabim, and yet is not enclosed, is called a karmelis. Min haTorah, one may carry inside, into and from a karmelis. However, Chazal ruled that a karmelis must be treated with the stringencies of both a reshus hayachid and a reshus harabim. This means that it is forbidden to carry inside, into, or from any area that is not completely enclosed. This is the way we are familiar with observing Shabbos – one does not carry in any unenclosed area.

Nevertheless, the Gemara rules that there are exceptional situations when Chazal permitted one to carry in a karmelis. The Gemara mentions explicitly that should one find a thorn in a karmelis that might hurt someone, one can simply pick it up and remove it, since the prohibition of carrying within and out of a karmelis is only miderabbanan.

Pachos pachos in a karmelis

Is it permitted to carry pachos pachos in a karmelis? In other words, since carrying in a karmelis is, itself, prohibited only miderabbanan, and carrying pachos pachos in a reshus harabim is prohibited only miderabbanan, if we combine both of these aspects in one case, is it permitted to carry?

This question is discussed neither in the Gemara nor by most of the rishonim. Although there are several attempts to demonstrate proof one way or the other from the Gemara and the early authorities, none of the proofs is conclusive. There is a dispute among the later authorities, many contending that pachos pachos is prohibited in a karmelis (Tashbeitz 2:281; Shulchan Aruch, Orach Chayim 349:5; Gra), whereas others feel that there should be no halachic problem at all with carrying pachos pachos in a karmelis (Even Ha’ozer and Maamar Mordechai, Orach Chayim 349; Shu”t Avodas Hagershuni #104). Common practice is to prohibit carrying pachos pachos in a karmelis, following the ruling of the Shulchan Aruch.

Conclusion

Let us now examine our opening question: “We were returning home in an area without an eruv when my two-year old decided that he was walking no farther. Is there a halachically acceptable way for me to carry him home?”

According to what we have now learned, even if the area in question qualifies as a reshus harabim, if one were to pick up the child, carry him less than four amos, and then stop, this would be permitted under the circumstances. Assuming that there are two people to carry the child, there is even a better solution, one that space-constraints does not allow us to explain fully, and that is to have the two people hand the child from one to the other and back without either walking four amos at any given time. There is also another reason to be lenient in the case of a child old enough to walk, in that carrying him in a reshus harabim is not prohibited min haTorah, because of a principle called chai nosei es atzmo, which we will have to leave for a future article.

Difference of carrying

The melacha of hotza’ah, carrying, is qualitatively different from the other 38 melachos. Every other melacha results in some type of change, either physical or chemical, to the item on which the melacha is performed. In the case of carrying, the only thing being changed is the item’s location. Furthermore, the rules governing what is permitted min haTorah and what violates Torah law seem strange and arbitrary. Yet, we understand that these rules are part of our Torah shebe’al peh, and we have to study to learn how to apply them. The Navi Yirmiyohu (17:19-27) was concerned about carrying on Shabbos; it is a melacha like any other, yet people mistakenly think that it is not important. Indeed, we would not usually define transporting something as changing it functionally, which is what most melachos accomplish. Yet, this does not make the melacha of hotza’ah any less important than any other melacha.

Rav Hirsch (Shemos 35:2) explains that whereas other melachos demonstrate man’s mastery over the physical world, carrying demonstrates his mastery over the social sphere. The actions that show the responsibility of the individual to the community and vice versa are often acts of hotza’ah. Thus, the prohibition to carry on Shabbos is to demonstrate man’s subordination to Hashem, in regard to his role and position in his social and national life.

 

Observing a Colorful Lifestyle

With the several references in the parsha to wine and grapes, I thought an article dealing with some practical grape skin problems might be in order.

Observing a Colorful Lifestyle

Question #1:

Are there any non-kosher food colorings?

Question #2:

Why would a hechsher insist on a recall of a product?

Quiz Question #1, or Question #3:

How can a non-kosher ingredient be noticeable, and yet the finished product is kosher?

At one point in my life, when I worked as a kashrus supervisor, I made a surprise inspection of a company that produced juice drinks – let’s call it Generic Juices, Incorporated. I was surprised to discover that the plant was not following the instructions it had received from its hechsher and was bottling beverages containing enocianina, a coloring derived from grape skins. This product was not on the list of approved ingredients, and for good reason, as I will explain shortly. The kashrus concerns involved now created a serious problem for the hechsher, the company, and most of all, the unsuspecting consumer. Before discussing what happened, I must present the halachic issues involved.

THE FOOD COLORING INDUSTRY

Whether we like it or not, many of our foods are colored with a host of coloring agents. Some are derived from food items, such as beets, berries, sugar (caramel coloring), turmeric and annatto, whereas others are derived from inedible materials whose sources most consumers would prefer to ignore. Although processing colorants can compromise the kashrus of the finished product, few food colors are themselves obtained from non-kosher materials. However, there are two common food pigments that originate from non-kosher substances: One is carmine red, also called cochineal, which is a very common color used to color fruits, yogurts, juice drinks, maraschino cherries and more. Cochineal is extracted from an insect that is native to South America. A closely related dye color, kermes, is a shade of scarlet derived from scale insects, which may have been the source of the tolaas shani dye used in the Mishkan and Beis Hamikdash. We should note that the Hebrew word tola’as, which is usually translated worm, may include insects and other small invertebrates. Thus, it may indeed be that the tola’as of the verse is a scale insect that produces a red dye.

The verse (Yeshayah 1:18), “if your sins will be like shanim, they will become as white as snow; though they be red as the tola, they will become white like wool,” clearly indicates that tola’as shani is a red color. On this basis, some authorities identify tola’as shani as kermes (see Radak to Divrei HaYamim II 2:6). One can rally support for this approach from the verse in Divrei HaYamim (II 3:14), which describes the paroches curtain as woven from techeiles, argaman, karmil, and butz, which is linen; whereas the Torah describes the paroches as made of techeiles, argaman, tola’as shani, and sheish, which is linen (Shemos 26:31). The words karmil and kermes certainly seem to be cognate. Similarly, the Rambam explains tola’as shani to mean “wool dyed with an insect” (Hilchos Klei HaMikdash 8:13). Thus, karmil appears to be another word for tola’as shani. The ancients derived a red dye from the dried bodies of the species called Kermes ilices, which served as one of the most important pigments for thousands of years. As a matter of fact, the English word crimson derives from this ancient dye.

(Without going into the subject in detail, it is appropriate to mention that some responsible rabbinic authorities rule that cochineal is kosher, since it comes from an inedible part of the insect. However, I am unaware of any major kashrus organization today that treats cochineal as kosher.)

GRAPE SKIN EXTRACT

The other common non-kosher source is called enocianina, colloquially often called simply eno, a red or purple natural food color derived from grape skin extract, and commonly used in beverages, fruit fillings and confections. After the juice has been squeezed out of the grapes, the remaining pulp is processed into a commercial coloring agent. Although one could produce kosher eno from kosher-processed grape skins, grape skin color available today is produced in non-kosher facilities. After the grapes have been squeezed and the juice has been separated from the pulp, at which time they become subject to the halachos of stam yeinam, which means that they have probably become non-kosher. Thus, we assume that eno is not kosher.

GENERIC JUICE DRINKS

Unfortunately, when I discovered the problem, Generic Juices had already produced and shipped tons of product using either carmine or eno – and all of it bearing the kosher certification symbol on the label! Is the kashrus agency halachically required to insist on a recall of the product from the supermarket shelves?

RECALL

Companies hate having their products recalled, for technical reasons, because of the major expense involved, and because it is a public relations nightmare. On the other hand, if the product now in the marketplace is prohibited according to halacha, we must be concerned that a consumer may use the product, because he assumes that it is kosher! Although a recall is never a foolproof method, it is the best we can do to avoid people unwittingly consuming a non-kosher product.

The policy of this particular hechsher was not to require a recall, unless the product could not be used even after the fact, bedei’evid. It was now the responsibility of the hechsher’s poskim to decide whether the product is prohibited after the fact, and, therefore, to require a recall, or whether bedei’evid the product is permitted. Although we would insist that all labels bearing the hechsher on this product be destroyed, or at least the kashrus symbol be obliterated, the hechsher would not require the product that had already been shipped to be recalled. (There would also need to be further clarification as to whether the hechsher would allow distribution of the product that had been labeled but was still in the company’s control.)

Why should the finished product be kosher, if the colorant was not?

The basis for this question follows:

Coloring agents are used in very minute amounts. Indeed, when the Spaniards discovered carmine red, they sold the concentrated powdered pigment at a higher price per ounce than gold! Thus, the amount of coloring used to color a juice drink, maraschino cherry or strawberry-flavored yogurt is significantly less than the amount that we usually say is bateil (nullified) in a finished product. Although one may never add treif product to a food and rely on its becoming bateil, if a non-kosher product was added inadvertently in minute quantities, the finished product is usually permitted.

The primary criterion to determine whether the treif ingredient is bateil is:

Can the non-kosher product be tasted, either because of its quantity or because it is a flavoring agent?

In our instance, this test is passed with flying colors! None of these colors can be tasted in the finished product.

However, there is, or might be, another criterion:

Is the treif product noticeable?

If one can see a treif ingredient floating inside a food, one may not consume the food without first removing the treif item.

COLORS ARE NOTICEABLE

The boldness of a color announces its existence. Can we say that a color is bateil when we see clear evidence of its existence?

On the other hand, the Vilna Gaon argues that determining whether the food is kosher depends on whether one can taste the treif ingredient (Yoreh Deah 102:6). In our instance, although the color is noticeable, no one tastes the colorant, and, therefore, the finished product is permitted, assuming that the admixture was made in error. An earlier authority, the Minchas Yaakov (74:5), also espouses this position.

According to this approach, we have answered our opening Quiz Question #3, which was: How can a non-kosher ingredient be noticeable, and yet the finished product is kosher?

A COMPROMISE POSITION – IN WHOLE CLOTH

Some authorities compromise between these two positions, comparing our question to a Gemara that discusses whether someone who stole dye and cloth and now returns the dyed fabric fulfills his mitzvah of returning what he stole. The Gemara rules that this depends on whether the dye is considered to still exist after it has been used, because its color is still noticeable (Bava Kamma 101a). Is the color on the cloth treated as if the dye itself still exists, or did the dye become bateil and no longer exists? If the dye no longer exists, then it was not returned, whereas if the dye still exists, then it was returned.

CONCLUSION

By this time, I presume most readers want to know what the hechsher did. The deciding posek ruled in accordance with the last position mentioned, and contended that the carmine coloring might be prohibited min haTorah, and therefore the company must recall the beverages containing carmine. Since eno, the grape skin extract, involves only a rabbinic prohibition, he did not require the company to recall the items containing this ingredient, contending that, according to most authorities, the eno is considered nullified in the final mix.

We should always pray that the food we eat fulfills all the halachos that the Torah commands with no controversial shaylos.

 

Raisin Juice and Wine

While traveling to Egypt, what could Yaakov and his family have used for kiddush and havdalah…

Raisin Juice and Wine

Question: Traveling Kiddush

“Is there a simple way to make wine for kiddush when I travel in the Orient, where there is no kosher wine to be had?”

Answer

Every special event – kiddush, havdalah, weddings, sheva brochos, brisin, pidyon haben, the seder – includes wine. And halachah mentions the special role of wine in celebrating Yom Tov. Our question is whether there is a simple way to produce wine for kiddush and havdalah when you are traveling in a place that has no readily-available kosher wine. I believe I have found a simple solution, other than carrying along small bottles of wine in your luggage.

One option that a friend of mine uses when traveling is to go to a local fruit market or grocery, purchase a couple of pounds of grapes, squeeze them into juice, filter the finished product through a freshly laundered handkerchief, and use some of the juice for kiddush Friday night, some for Shabbos morning and the remainder for havdalah. For reasons beyond the scope of this article, this juice is preferable even to commercially-produced grape juice.

For those of us who do not see ourselves squeezing our own grape juice, halachah presents other options when grape wine is not available. One of the preferred choices is to use a product called yein tzemukim, which literally translates as “raisin wine.” Extensive literature on the subject indicates that raisin wine was often substituted as a practical alternative to grape wine.

Commercial use of raisin juice and wine

While researching this topic, I discovered that the non-Jewish world uses both raisin juice and raisin wine as specialty products. I also discovered that non-alcoholic raisin juice and alcoholic raisin wine are used in very different ways.

Raisin juice is rarely sold retail, although one might find it in a health food or other specialty store. It is used predominantly in the bakery and condiment industries as a sweetener, but since raisins contain significant levels of propionic acid, their juice functions also as a natural, mild preservative. Raisin juice can serve also as both a colorant and a humectant, which means that it helps keep the product moist. Thus, there are many different reasons why raisin juice might be added to a product, particularly since the manufacturer is not required to list on the label that humectants, preservatives, colors or flavors were added.

Raisin wine has an ancient history as an alcoholic beverage. Indeed, raisins contain all the ingredients to make wine that grapes have, except for water, which one can usually supply easily. Since the skins contain the yeasts that naturally convert sugar into alcohol, and approximately 2/3 of the weight of raisins is natural sugar, raisin juice can be fermented easily into alcohol. Production of raisin wine involves soaking the raisins in water with a few other winemaking ingredients and then allowing the product to age. Specialty and boutique raisin wine producers, like grape winemakers, prefer to kill off the natural yeasts and then inoculate with their own yeast to produce a more predictable product, but the other basic ingredients for producing wine are all in the raisins. Quality raisin wines are usually aged for years before they are drunk.

Both raisin wine and raisin juice can be made either by steeping the raisins in water until it absorbs the raisins’ flavor or by cooking the raisins. By the way, both raisin juice and raisin wine produced by non-Jews will involve the prohibition of stam yeinam, a topic I have discussed in other articles.

Is it grapy enough?

Both raisin juice and raisin wine are specialty – almost boutique – products, and therefore quality is usually the main consideration, not price. In contrast, the halachic authorities discussed a situation where, for the most part, people were more concerned with finding an inexpensive way to fulfill the mitzvah of kiddush than they were with product quality. From the extensive literature on the subject, it appears that yein tzemukim was often used as an economical alternative to costly wine. One of the main issues was whether there is enough grape in the final product for it to be considered wine. This means that much of the halachic literature about yein tzemukim discusses a product that is qualitatively different from what is sold today as raisin juice or raisin wine. Nevertheless, there is much germane halachah to be learned here, and its application arises in surprising circumstances, as we will soon see.

Halachic ramifications of yein tzemukim

The halachic authorities discuss yein tzemukim in the following specific contexts:

  1. Which brocha does one recite before and after drinking it?
  2. Can one use it for the mitzvah of kiddush?
  3. May one use it to manufacture non-seder matzoh (matzoh ashirah) for Pesach? (Ashkenazim follow the practice of using matzoh ashirah only for the elderly, ill and children, so it would be germane for them in these matters. Space considerations do not allow us to discuss this particular topic in this article.)
  4. Is it non-kosher if a gentile handles it? I examined this topic in a different article, entitled The Kashrus of Raisin Juice and Wine.
  5. Does pouring it on the mizbeiach fulfill the mitzvah of nisuch hayayin, pouring wine on the altar?

The last question is mentioned briefly in the Gemara, where it states that, lechatchilah, one should not use yein tzemukim for nisuch hayayin, but one who did so has fulfilled the mitzvah. We will soon discuss the first two issues in more detail. But first, let us trace the background of these questions from their initial sources.

Juice from marc

The earliest halachic reference to a raisin juice product is in the Mishnah (Maasros 5:6), which discusses whether one who creates a form of raisin juice, called temed, by soaking the residue of the grape crush (called marc in English) is required to separate maasros from the resultant product. Halachah requires separating maasros (of produce grown in or near Eretz Yisroel) only when the fruit is ready for consumption, which, in the case of wine grapes, means that they have been crushed, aged and filtered. Thus, maasros on wine grapes are usually separated from the completed juice or wine and not taken from the marc, which is a byproduct. The Mishnah’s question is whether the product created by soaking the marc in water and stirring the mixture until it becomes drinkable is considered wine, requiring the separating of maasros.

Wine from sediment

A passage of Gemara (Bava Basra 96b) quotes a dispute concerning when and whether one recites hagafen prior to drinking a different type of temed, in this case made by steeping wine sediment in water. When the yield is no greater than the amount of water initially used to soak the sediment, the brocha is shehakol, because there is insufficient grape product in the beverage. When the yield is four units for every three units of water used initially, then the temed is considered a grape product, and its brocha is hagafen. The Gemara states that when the resultant beverage contained less than four but more than three units per every three units of water used originally, there is a dispute among the tana’im as to which brocha one should recite. The first opinion rules that the percentage of grape product soaked out of the sediment is insignificant and considered nullified in the water. Therefore, the brocha is shehakol. The second opinion considers the grape presence significant in this instance; therefore, the brocha is hagafen. The halachic conclusion follows the first opinion – the brocha on this product is shehakol (Tosafos ad loc. s.v. Ein; Shulchan Aruch, Orach Chayim 204:5, 6).

Remember that this passage of Gemara was discussing temed made from soaking wine sediment. Tosafos (ad locum) discusses what is the proper brocha on wine produced by fermenting marc (the residue of the grape crush) and concludes that no distinction should be made between marc temed and sediment temed – unless the finished product contains four units for every three units of water supplied at the beginning, the brocha is shehakol.

Marc brandy

As a curious aside, it appears that Jews were not the only people interested in producing spirits from marc. According to my desktop dictionary, one of the definitions of “marc” is the brandy produced by distilling the residue of grape skins and seeds after the juice has been expressed. If the dictionary has a word for this beverage, we know that a number of people were producing it, and it does not appear that their interest was to produce a beverage serviceable for kiddush. Interestingly, since this product is distilled and not simply fermented, most authorities rule that its brocha is shehakol, even if the resultant product is four units for every original three units of water.

Types of marc

When the Shulchan Aruch (Orach Chayim 204:6) discusses the correct brocha to recite prior to drinking temed, it notes that there is a difference between marc produced in a press and marc produced the old fashioned way – by stepping on the grapes to crush them. It notes that the marc obtained from this latter method retains a high percentage of original grape product. Therefore, the correct brocha for the temed produced by soaking this marc in water is hagafen, even when the yield is no greater than the amount of water originally used.

What about kiddush?

Is temed produced from either marc or wine sediment acceptable for kiddush? The Shulchan Aruch (Orach Chayim 272:7) rules that when the correct brocha on the temed is hagafen, it may be used for kiddush, and when the correct brocha is shehakol, it cannot.

What constitutes yein tzemukim?

Yein tzemukim is not the same product as marc wine, since raisins contain more grape flavor than marc does (Shu’t Tashbeitz 1:57). For this reason, most authorities rule that one may recite kiddush on yein tzemukim even when there is no increase in volume (Shu’t Tashbeitz 1:57; Beis Yosef, Orach Chayim 462; Shulchan Aruch, Orach Chayim 272:6). One major authority, the Mishkenos Yaakov (Shu’t Orach Chayim #106), disagrees, contending that one recites hagafen only on juice squeezed out of raisins, but not on the wine or juice created by steeping or cooking them. According to this opinion, raisin wine may be used for kiddush only when the liquid that leaves the raisins is at least one quarter of the final product.

How many raisins?

What is the minimum ratio of raisins to water for the finished product to be considered yein tzemukim? I found four opinions on this question. I am listing them from the most lenient to the most stringent.

  1. The most lenient position I found contends that as long as the product has a grapy taste, the brocha is hagafen and it can be used for kiddush (Tashbeitz, mentioned by Rabbi Akiva Eiger in his comments to Shulchan Aruch, Orach Chayim 272:6).
  2. Most opinions hold that the mix must be at least 1/7 raisins by volume – but we then find two widely divergent ways of understanding how we calculate 1/7. The Bechor Shor (comments to Bava Basra 96b) contends that we calculate based on how much the raisins would swell after sitting in the water, which means that the actual ratio is much smaller.
  3. The Yad Efrayim and the Derech Chayim (quoted by Mishnah Berurah 272:16) both contend that the ratio is 1/7 raisins by volume but calculated using the original, dried raisins.
  4. The above-mentioned opinion of the Mishkenos Yaakov that there must be significant juice squeezed out of the raisins. According to this opinion, raisin wine may be used for kiddush only when the liquid that leaves the raisins is at least one quarter of the final product.

How long?

Let us now consider another question: How long must raisins soak for the product to be considered wine?

The Mishnah Berurah (272:15) rules that if you crush the raisins, add water and stir, then after three days you may use the product for kiddush.

If one cooks the mixture of raisin and water, the blending takes place much more quickly, and can produce a halachically acceptable raisin wine immediately (see Chayei Odom 6:7).

Microwave kiddush

Based on the last ruling, I’ll share with you an interesting anecdote. Someone traveling for business who did not want to use challah for kiddush asked me for a suggestion as to what to do. Since he had access to a microwave, we came up with the following solution: He purchased raisins, placed them in a pitcher with water, and microwaved the mixture until it produced a very drinkable juice.

In the locale that he was visiting, insect infestation is a big problem in raisins. To resolve this problem for his raisin juice, he packed along cheesecloth and placed the raisins inside this prior to boiling them. Thus, the flavor of the raisins cooked into the water, but the infestation did not. The use of the cheesecloth had the added advantage of making it very easy to remove the raisins after he had produced the juice. The entire procedure took this very busy businessman only a few seconds to prepare.

Flavored raisin juice

Is there any problem with reciting kiddush on flavored raisin juice or wine? Although this product sounds like a modern creation – the brainchild of some research and development lab – the question was apparently common two hundred years ago. I found the issue discussed by the Tzemach Tzedek, the third rebbe of Lubavitch, in his responsa (Shu’t Orach Chayim #27). After explaining that raisin wine may be used for kiddush, he notes that the standard product available where he lived was seasoned with honey and other spices. He is concerned that this particular flavored product does not qualify as wine, since the flavor may come from the seasonings and not from the grapes. Thus, although raisin wine and yein tzemukim may be used for Kiddush, this is true only as long as its flavor is made by grapes and not some other additive. Even a product labeled “natural grape flavor” may not meet this requirement halachically since “natural grape flavor” does not mean that the flavor comes from grapes, but that the flavor comes from a natural source. If the contribution of the grapes is insufficient, an added boost from a non-grape source does not make this into a beverage on which one can recite hagafen.

Obviously, situations vary and it is not an absolute rule that one cannot use flavored raisin wine for kiddush. However, should kosher, flavored raisin-wine become available, one would be required to ascertain whether the flavor comes from the grapes in the product (in which case the brocha is hagafen and it may be used for kiddush) or from other sources, in which case the brocha is shehakol.

Conclusion

Although many people would prefer to either pack along their wine, locate the nearest Chabad house or make kiddush over bread, I believe the solution, for those who have access to a microwave oven, of packing cheesecloth and purchasing raisins is indeed a solution that some people might find more palatable and convenient.

 

 

The Stuff of Dreams

Question #1: Which approach is best?

“I had a bad dream. Should I fast, go to the nearest Sefardi shul and pray while the kohanim are duchening, or perform the hatovas chalom ceremony?”

Question #2: Fast again?

“I was told that if someone fasts for a bad dream, he is supposed to fast again. Why?”

Question #3: Strange dreamer

“I often have strange dreams. Should I be concerned?”

Answer

This week’s parsha begins with the famous story of Pharaoh’s dreams, certainly providing an opportunity to discuss the many passages of Gemara relating to dreams.

Before we discuss these Talmudic passages, let me explain some of the ideas mentioned in the opening questions. The Gemara mentions three different solutions to guarantee that disturbing dreams have pleasant results. The first is to daven while the kohanim bless the people, the second is a procedure called hatovas chalom – literally, rectifying the dream, and the third is to fast on the day that the person wakes up with the disturbing dream.We will cite these three approaches in the course of this article.

The first question we need to address is whether one should place any weight at all on dreams. In the following passage, the Gemara itself implies that one should not:

Rav Shmuel bar Nachmeini said, quoting Rav Yonasan, “You dream at night what you think about during the daytime” (Brachos 55b). As proof, the Gemara notes that people do not dream of palm trees made of gold or of elephants climbing through the eyes of needles. Since no one thinks about these things during the day, one does not dream about them at night.

In this context, the Gemara shares the following anecdote: The emperor of Rome, in the midst of one of his wars with the Persians, asked Rabbi Yehoshua what he would dream about the coming night. Undaunted, Rabbi Yehoshua answered him, “You will dream that the Persians will be serving you as their king” (Brachos 55b). We can all guess what the emperor dreamed the following night. We call this the power of suggestion.

Thus, the Gemara’s view is that dreams should not be relied upon. A corollary of this idea is that one need not take action when one wakes with a disturbing dream. Following this approach, the Gemara quotes the prophet Zecharyah (10:2), who stated, “Dreamers speak falsehood.”

Prophetic dreams

On the other hand, both Tanach and the writings of Chazal contain numerous instances wherein dreams are taken very seriously. Let us begin with Chumash. Aside from the dreams of the officers of Pharaoh discussed in last week’s parsha, and those of Pharaoh himself this week, we have Yaakov’s dream at the beginning of parshas Vayeitzei, and those of Yosef at the beginning of parshas Vayeishev. Furthermore, in Bamidbar (12:6), Hashem tells Miriam and Aharon, regarding most prophets, “In a dream, I speak to him.” Obviously, these dreams are prophetic.

Also in Nach, we have numerous examples of prophecy occurring through dreams. In the second perek of Daniel, we are told about Nevuchadnetzar’s terrifying and forgotten dream; he tests Daniel by demanding that the latter discover and reveal it – and the dream is fulfilled. Again, we have the pasuk (Shmuel I, 28:6) which says, “And Shaul asked of Hashem, and Hashem did not answer him, not with dreams, nor with the Urim, nor with prophets.” Thus, we see that Shaul’s dreams included communication from Hashem.

In this context, the Gemara reports that dreams are one-sixtieth of prophecy (Brachos 57b). This expression means that although many aspects of a dream are fictitious or represent one’s imagination, there is a kernel of prophecy in the dream.

Moreover, an extensive discussion in the Gemara (Brachos 55b-57b) mentions numerous lessons and messages, both positive and negative, that can be derived from dreams.

The Gemara even tells us how to guarantee a good result from a dream. It states that the spoken interpretation of a dream determines its outcome (Brachos 55b), and implies that one can even pay the interpreter of the dream in order to gain a favorable consequence (Brachos 55b). This means that if someone has a dream, he can hire someone to provide a favorable interpretation, which will indeed come true as fulfillment of the dream.

In this context, Rav Binah said that in his day, there were 24 dream interpreters in Yerushalayim. “Once I had a dream, and I went to all of them and received 24 different interpretations – and all 24 interpretations happened!” According to the Maharsha, this means that all 24 approaches lay within the dream, and therefore they were all true.

The Gemara also states that one could wait up to 22 years for a good dream to be fulfilled (Brachos 55b). The proof is from Yosef, since what he dreamed when he was 17 was not fulfilled until his brothers came down to Egypt, 22 years later.

Meaningless parts

Although the main part of the dream might be prophetic, the Gemara concludes that just as all grain includes chaff, every dream includes meaningless parts (Nedorim 8a and Brachos 55a).

Dreams to motivate teshuvah

Rav Huna said that a good man never has a good dream, and a bad man never has a bad one (Brachos 55b). Rashi explains that the good person is motivated by a bad dream to do teshuvah, whereas with a good dream the bad person receives his reward in this world for the mitzvos he performed. The specific examples cited are Dovid Hamelech, who never had a good dream, and Achitofel, who never had a bad one.

Worrisome dreams

In a deep medical-psychological evaluation, the Gemara notes that a bad dream is worse for the body than receiving a brutal physical beating, because the worry about what the bad dream means harms a person in a much greater way than being beaten (Brachos 55a). This helps us understand our previous comment about dreams being used to encourage a person to do teshuvah.

Selective interpretation

A different passage of Gemara (Sanhedrin 30a) relates an event and the resultant halachic ruling. A person knew that his father had hidden money but didn’t know where his now-deceased father had placed it. A “baal hachalom” – apparently someone who either could have a prophetic dream or had the ability to interpret one – told him where the money was located, how much was there, and also that the money had the sanctity of maaser sheini, which may be used only to purchase food that must be eaten in Yerushalayim. The Gemara concludes that the heir is permitted to ignore the statement that the money is maaser sheini, notwithstanding the fact that the very same interpreter successfully located the money and named the sum! This Gemara is quoted as the final halacha by the authorities (Rif and Rosh, ad locum; Rambam, Hilchos Ma’aser Sheini 6:6). The words of the Gemara are “divrei chalomos einan ma’alin v’einan moridin – dreams are meaningless and neither help nor hinder” (Sanhedrin 30a).

The Gemara reports that when the amora Shmuel had a bad dream, he would quote the above-referenced verse of Zecharyah that dreams lie; yet, when he had a good dream, he would refer to Chumash as proof that this was a good indication. The Gemara notes that these two statements of Shmuel appear contradictory, to which the Gemara responds that it depends whether the dream was conveyed by an angel or by a demon (sheid). A dream conveyed by an angel is considered a form of prophecy, whereas one from a demon or other questionable source should be ignored. Many halachic authorities explain that when one cannot attribute the dream to an angel, this is the same as blaming it on a demon, and one may ignore the dream (see, for example, Shu”t Tashbeitz, vol. II, #128; Aruch Hashulchan, Orach Chayim 220:1).

Later dream interpretation

The Jewish literature and history involved in dream interpretation did not end with the closure of the Gemara. Some rishonim discuss other specific events that were governed by dreams, as in the following story: Some people were building a wooden coffin for a meis, and someone wanted to take a piece of leftover wood and make a harp out of it. This individual was warned by the others not to do so, but he disregarded them. The meis for whom the coffin was made came in a dream and warned him that if he persisted in making the harp, he would be punished. He ignored this admonition and made the harp. He then had another dream, in which the meis told him that if he does not break the harp, he will be in danger. This was also ignored, and the man got sick. When he became very ill, his son took the harp and broke it on the grave of that particular meis, leaving the pieces on top of the grave. After this, his father recovered (Sefer Chassidim #727).

Which dreams?

So far, we see that dreams can foretell the truth, at least in part, and can also be used to encourage someone to do teshuvah. On the other hand, we have statements in the Gemara implying that dreams can be ignored. Is there a dispute in the Gemara as to whether dreams should be interpreted or not? The Gemara’s presentation does not imply this.

Rather, the Gemara and its commentaries suggest that there are different types of dreams, some of which are simply a reflection of what one experienced during the previous day, and others that are, indeed, prophetic or potentially prophetic.

I had a dream

As I mentioned above, the Gemara has many discussions about dreams, and also provides advice on how to counteract the harm foretold by disturbing ones. The Gemara teaches that if someone had a dream that disturbed him in a major way, he should perform the procedure called hatovas chalom in the presence of three people. The hatovah is performed by asking three friends to recite together a series of statements and pesukim. The Mishnah Berurah (220:3) comments that it is a mitzvah to be one of these three people, as they give confidence to the discouraged person to move on in life. The Gemara presents the structure of hatovas chalom: It should include three verses of Tanach that mention “reversal” (meaning that they will “reverse,” or annul, the message of the dream), three that mention redemption, and three that mention peace. The Gemara proceeds to enumerate which pesukim to use (Brachos 55b). (The text of hatovas chalom is printed in many siddurim.)

The Pri Megadim and the Mishnah Berurah (220:1) comment that the criterion for hatovas chalom is not the nature of the dream but the extent to which the dreamer finds it disturbing. By the way, hatovas chalom may be performed even on Shabbos (Elyah Rabbah; Mishnah Berurah).

We should note that if the dreamer had been fasting the previous day, heard bad news or anything similar, and then had a troubling dream, he should not be concerned about the dream and no hatovas chalom is necessary (Shaar Hatziyun ad locum).

Duchening and Dreams

A second suggestion mentioned in the Gemara regarding dreams is that someone who had a dream that requires interpretation and does not know whether the dream bodes well should recite a prayer at the time of duchening (Brachos 55b; Shulchan Aruch, Orach Chayim 130:1). Some authorities prefer that one not recite this prayer while the kohanim are actually reciting the words of the duchening (see Rema, Orach Chayim 128:45; Mishnah Berurah 130:3). For this reason, Ashkenazic practice is that when the kohanim duchen on Yom Tov, they chant a tune prior to the completion of the brocha to give people the opportunity to recite the prayer. This prayer can be recited not only when one is uncertain of the interpretation of the dream, but even when one knows that the dream bodes ill (Mishnah Berurah 130:4).

In chutz la’aretz, where the practice among Ashkenazim is that bircas kohanim is recited only on Yom Tov, the minhag is that everyone recites this tefilah during the duchening on Yom Tov, as it is likely that every person had such a dream since the previous Yom Tov (Mishnah Berurah 130:1).

But since Ashkenazim in chutz la’aretz duchen only on Yomim Tovim, this suggestion does not provide an immediate solution for someone whose bad dream did not schedule itself on the night of Yom Tov. At this point, let us examine one of our opening questions: “I had a bad dream. Should I fast, go to the nearest Sefardi shul and pray while the kohanim are duchening, or perform the hatovas chalom ceremony?”

The basis of the question is that the person is an Ashkenazi in chutz la’aretz, and he does not want to wait until Yom Tov to ameliorate his dream. Thus, he is asking whether he should find a Sefardic shul where the kohanim duchen daily (even in chutz la’aretz) and say his tefillah there. I refer our reader who has this question to his rav or posek for halachic guidance.

Fasting

A third suggestion to blunt the potential damage of a disturbing dream is to fast on the day that one wakes up with the dream (Shabbos 11a). This procedure is called taanis chalom. This fast is effective in nullifying any negative outcome foretold by the dream, but only when one fasts the day immediately following the dream. Note that there is no obligation to observe this fast – it is simply a suggestion to countermand whatever bad consequence was warned about in the dream (Mishnah Berurah 220:7).

The Gemara reports that this fast may be observed even on Shabbos, although an individual who does so is then required to fast another day (sometime in the future) for having compromised the sanctity of Shabbos by fasting. Thus, although the taanis chalom, itself, is effective to protect against harm, it is still considered a violation of the sanctity of Shabbos.

We can now address the second of our opening questions: “I was told that if someone fasts for a bad dream, he is supposed to fast again. Why?”

Someone here misunderstood the law. The halacha of fasting a second time is only for someone who fasted a taanis chalom on Shabbos, and now we know the reason for the second fast.

In our day

In our day, one should not be overly concerned about dreams, both with regard to fasting and with regard to reciting hatovas chalom. This is because, as we mentioned earlier, most dreams are either a product of things that a person thinks about during the day or are due to overeating or another experience (Aruch Hashulchan, Orach Chayim 220:1, 4). Additionally, one who suffered from some pain or anguish and then had a bad dream need not be concerned, as the dream resulted from his anguish (Sha’ar Hatziyun 220:1).

One of the talmidim of the great mekubal, Rav Yaakov Hillel, told me the following: “Rav Yaakov Hillel told us many times not to pay attention to dreams. He explained that the statements of Chazal explaining the messages of dreams are significant only when they are messages from Above. Our thoughts are polluted by the media, technology, and extremely unnatural stimuli that bombard us all day. Our dreams reflect what we saw or heard during our waking hours. They might even be triggered by an ad or a newspaper headline we saw in passing. Rav Hillel tells people who come to him with disturbing dreams not to pay attention to or be bothered by them.”

One might ask: If this is so, why do we still recite the prayer while the kohanim duchen? There are several ways to resolve this question, but explaining them properly is beyond the scope of this article.

Conclusion

A dream is the first step of any new venture. We see a vision for our lives, our families, our community and the world we live in. We dream about how the world can be improved, and of the contribution that we can make.

In this context, I want to share an anecdote told about the Ponevizher Rov standing over the vacant hill and fields that today are the center of the city of Bnei Brak. Upon hearing the Rov’s visions of the future that would be there, someone turned to him and said, “The Rov is dreaming.” The Rov responded, “I may be dreaming, but I am certainly not sleeping!”

 

 

What Makes Bread Jewish?

Since the end of our parsha discusses Pharaoh’s non-Jewish baker, I thought it appropriate to discuss some of the laws of pas akum, pas Yisroel and pas paltar.

What Makes Bread Jewish?

Question #1: No Bagels

“Where I live, the local frum bakery does not make bagels. Am I permitted to purchase brand name bagels that are not pas Yisroel?”

Question #2: Commercial versus bakery

“On Shabbos, am I required to use exclusively pas Yisroel, which is hard to get in my town?”

Question #3: Who is a Jew?

“What defines my bread as being Jewish?”

Basic background

In the days of the disciples of Hillel and Shammai, Chazal forbade eating bread made by non-Jews, called pas akum – even when there are no other kashrus concerns, neither about the ingredients nor about the equipment used to prepare the bread (Avodah Zarah 36a). To quote the Mishnah: “The following items of a non-Jew are forbidden to be eaten, but are permitted for benefit: milk milked by a non-Jew without a Jew supervising; their bread and their oil — although Rebbe and his beis din permitted the oil — and their cooked items” (Avodah Zarah 35b). This article is concerned primarily with pas akum, but also touches on another takanah mentioned in this Mishnah: the prohibition against eating food cooked by a gentile. The Mishnah refers to this food as shelakos – literally, cooked items – but the prohibition is usually called bishul akum.

Pas akum glossary:

To facilitate our understanding of the prohibition of pas akum, I will now define some of the terms germane to the subject.

Pas Yisroel – bread baked by a Jew, or where a Jew participated in its baking.

Pas baalei batim – bread baked by a non-Jew for his personal use, which is almost always forbidden.

Pas paltar – bread baked by a non-Jew for sale. Notwithstanding the above quote from the Mishnah, the halachah is that pas paltar may be eaten, at least when certain conditions exist.

Bishul akum glossary

Although bishul akum has its own glossary of terms, the only term we need for our article is oleh al shulchan melachim, which means “something that would be served on a king’s table.” The halachah is that the prohibition of bishul akum applies only when the food is something that would be served on a king’s table.

Dispute about pas paltar

As our title and opening questions indicate, most of our article will discuss the laws of pas Yisroel and the extent to which pas paltar is permitted. As I explained in another article, the Rishonim understand that pas paltar is permitted under some circumstances. There is a basic dispute among halachic authorities as to what those conditions are. According to the Shulchan Aruch and the Shach, it is permitted to use pas paltar only when there is no comparable pas Yisroel available. However, if the pas paltar tastes better, or one wants to eat a variety of bread that is not available in his locale as pas Yisroel, one may use pas paltar. Nevertheless, according to this opinion, one must constantly assess whether pas Yisroel is available before using pas paltar.

Some authorities permit purchasing pas paltar even when pas Yisroel is available, in a situation where there would not be enough pas Yisroel for everyone if there were no pas paltar available (Kaf Hachayim 112:30). They also permit pas paltar when purchasing exclusively pas Yisroel would drive up its price (Kaf Hachayim 112:30).

On the other hand, other authorities are more lenient, ruling that pas paltar is always permitted (Rema). This heter was so widespread that the Rema, in Toras Chatas, his detailed work on the laws of kashrus, wrote: “Since the custom in most places is to be lenient, I will therefore not expound on it at length, because the widespread practice is to permit this bread and eat it, even when there is pas Yisroel available. Therefore, one who is careful about pas Yisroel may choose to be machmir to the extent that he wants.”

Brand-named bagel

At this point, we can answer the first of our opening questions: “Where I live, the local frum bakery does not make bagels. Am I permitted to purchase bagels manufactured by a large company that are not pas Yisroel?”

The answer is that, according to all accepted opinions, one may use these bagels when no pas Yisroel bagels are available locally.

Hechsherim and pas Yisroel

Based on the opinion of the Rema, most hechsherim in North America do not require that the bread products that they supervise are pas Yisroel. Of course, this does not resolve the matter for Sefardim, who should use pas paltar only when no comparable pas Yisroel is available. Mehadrin hechsherim in Eretz Yisroel are, in general, stringent and require their products to be pas Yisroel.

It should be noted that the primary commentary on the Toras Chatas, the Minchas Yaakov, written by seventeenth-century posek and Gadol Rav Yaakov Breisch, points out that someone who has been machmir to follow the approach of the Shulchan Aruch, and then decides that he wants to be lenient and follow the Rema, is required to perform hataras nedorim before he may use pas paltar.

Aseres Yemei Teshuvah

The Rema in the Toras Chatas writes further: “However, during the days between Rosh Hashanah and Yom Kippur, the Rosh and the Mordechai wrote that one should be stringent.” This ruling is accepted by the Shulchan Aruch (Orach Chayim 603) and all later halachic authorities.

Pas akum on Shabbos

The authorities dispute whether the heter of using pas paltar applies on Shabbos. The Darchei Moshe (Orach Chayim 603:1) and the Magen Avraham (242:4) rule that one should not use pas paltar on Shabbos, whereas the Elyah Rabbah (242:10) rules that one may use pas paltar on Shabbos, just as one may on weekdays. Most later opinions follow the approach of the Darchei Moshe and the Magen Avraham that on Shabbos one should use only pas Yisroel, when available (see, for example, Chayei Adam, 1, 4; Aruch Hashulchan, Orach Chayim 242, 45; Mishnah Berurah 242:6). This is considered an aspect of kavod Shabbos, honoring the sanctity of Shabbos (Shulchan Aruch Hagraz, 242:13; Mishnah Berurah 242:6). However, when no pas Yisroel is available, or it is not comparable to the pas paltar, one may use pas paltar, even on Shabbos.

At this point, we can examine the second of our opening questions: “On Shabbos, am I required to use exclusively pas Yisroel, which is hard to get in my town?”

According to accepted halachic approach, one should use pas Yisroel on Shabbos when available, unless the pas paltar tastes better.

Breading for Shabbos

Many people do not realize that although they bake all their Shabbos bread at home, or purchase it only from Jewish bakeries, that when they bread their chicken or use croutons for Shabbos, they may be using pas paltar. Although this breading is certainly kosher and carries reliable hechsherim, according to most halachic authorities, one should use only pas Yisroel breading for Shabbos foods.

To justify those who are lenient, I can share two heterim. One heter was mentioned above: If all Jews would begin using pas Yisroel, there would not be enough for everyone, and this would cause prices to rise. A second heter is that there are authorities who permit pas paltar in a large commercial bakery, where the customer will never meet the employees (Birkei Yosef, Yoreh Deah 112:9, quoting Maharit Tzalon. Note that the Birkei Yosef, himself, rejects this heter.) Disciples of Rav Moshe Feinstein relate that Rav Moshe held this latter reason to be a legitimate basis to be lenient. I leave to each reader to discuss with his or her own Rav or posek whether he personally should be stringent in this matter, particularly since there are simple solutions to the question, as we will soon see.

We should be aware that an earlier authority, the Tashbeitz (1:89), states that, even when technically speaking, the halachah is that one may find reasons to be lenient and use pas paltar, it is appropriate for a person to be machmir in these halachos. He continues that one certainly should be machmir not to use pas paltar for pleasure items – such as pastry. The Tashbeitz advises that a rav should pasken for others that they are permitted to use pas paltar, but he, himself, should refrain from relying on the heterim.

True Jewish rye

At this point, we will examine the third of our opening questions: “What defines my bread as being Jewish?”

The entire issue of whether, and under which circumstances, a Jew may eat bread baked by a non-Jew is problematic only when the entire baking procedure is done without any participation of a Jew. However, if a Jew participated in the baking, the resultant bread is considered pas Yisroel.

What does it mean that a Jew “participated” in the baking? To answer this question, let us begin by quoting the following Talmudic passage:

Ravina said: “Bread made by having the oven lit by a gentile and baked by a Jew, or the oven was lit by a Jew and the bread was baked by a gentile, or even if it was lit by a gentile and baked by a gentile and a Jew stirred the coals, the bread is fine” (Avodah Zarah 38b). Rashi explains that the stirring of the coals increases the heat. The Ran explains Rashi to mean that this is considered that the Jew participated in the baking in a noticeable way. He notes that, according to Rashi, tossing a splinter of wood would not be sufficient to make the bread pas Yisroel, since the Jew’s participation does not make a noticeable difference. The Ran quotes this position, also, as that of the Ramban, and this approach was held also by the Rosh.

The Ran then suggests another possibility: If a Jew brings a hot coal or other source of fire, and the fire of the oven is kindled from this flame, the baked goods thereby produced are considered pas Yisroel. Although the Ran, himself, ultimately rejects this approach, others consider it acceptable to make the bread pas Yisroel, considering this to be that the Jew made a noticeable change, since without the original coal or flame, no bread would be produced.

The Ran concludes, as do Tosafos and the Rambam, that if a Jew simply tosses a splinter of wood into the fire, this is sufficient to consider the bread pas Yisroel, since the Jew symbolically participated in the baking of the bread.

Thus, we have a dispute among the early authorities as to whether the Jew’s participation in the baking of the bread must have some significance to make it pas Yisroel or whether a symbolic involvement is sufficient. The conclusion of most authorities is that a symbolic act, such as tossing a splinter into the oven, is sufficient (Shulchan Aruch, Yoreh Deah 112:9).

How many rabbis does it take to change a light bulb?

Some contemporary rabbis have suggested an innovative way to accomplish having commercial bread be considered pas Yisroel. The method is having a light bulb installed inside the oven that is turned on by a mashgiach. They reason that this adds more heat to the oven than does a splinter tossed into the fire. Other rabbonim disagree, contending that the splinter becomes part of the fire, and, therefore, the entire fire is influenced by the Jew, which then renders the bread pas Yisroel. A light bulb, on the other hand, provides insignificant heat and does not become part of the fire that bakes the bread. According to the latter approach, this bread remains pas akum.

Other heterim

The halachic authorities are lenient, ruling that even if the bread was already edible when a Jew added some fuel to the flame, it is still considered pas Yisroel, despite the fact that all the Jew added was some heat that made the bread a bit more tasty (Shaarei Dura; Shulchan Aruch, Yoreh Deah 112:12; Toras Chatas 75:3).

The Shulchan Aruch (112:10) also concludes, based on a statement of the Mordechai, that if the non-Jew baked a few times in one day, and the Jew did not throw a splinter into the fire on one of the occasions, the bread is still considered pas Yisroel, on the basis of his earlier participation. The Rema follows an even more lenient interpretation, in that he rules that if a Jew added to the flame once, all the bakings made in that oven are pas Yisroel, until the oven is off for 24 consecutive hours. The rationale behind this last approach is that the heat from the previous bakings, which had a halachah of pas Yisroel, is still considered as having been added by the Jew.

Contemporary ovens

In most contemporary ovens, there is no way to add a splinter to the flame. However, it is still very easy to make baked goods into pas Yisroel. All that is necessary is that, once in a great while, a Jew adjusts the flame downward for a second, until he sees that this has stopped or decreased the flow of fuel, and then he resets the thermostat to its original setting. The product quality is not affected at all, and this accomplishes that all the baked goods produced by this bakery are pas Yisroel. This is a very easy way to make all bread baked in large kosher bakeries in the United States into pas Yisroel. The mashgiach can simply adjust the flames of the ovens in the bakeries when he makes his regular inspections.

When is it bread?

The Mishnah quoted above discusses two different prohibitions: one that the Mishnah called bread, which has heretofore been our topic of discussion, and one that the Mishnah called shelakos, to which we usually refer as bishul akum, meaning food that was cooked by a non-Jew. There are several major halachic distinctions between these two prohibitions. The most obvious is that whereas pas paltar is permitted when pas Yisroel is unavailable (and according to the Rema, even when pas Yisroel is available), no such heter exists in the case of bishul akum. In other words, if the only food available is bishul akum prepared for commercial sale, it remains prohibited. (According to some authorities, there is one exception: A non-Jew cooked food on Shabbos for someone who is ill. According to the Rema [Yoreh Deah 113:16], there is no prohibition of bishul akum on this food, which means that after Shabbos even a healthy person may eat it. However, the later authorities rule that this food is prohibited, and that after Shabbos one should cook fresh food even for the ill person [Taz, Gra].)

Rice bread

The Rishonim explain that the law of pas akum applies exclusively to breads made of one of the five crops that we consider grains: wheat, barley, spelt, rye and oats (Tur, quoting Rosh; Shulchan Aruch). Some authorities contend that in a place where these grains are not available and, therefore, it is common to make bread from rice or similar grains, there would be a potential bishul akum issue (Pri Chodosh 112:5). This approach is implied by the Rosh and by the Toras Chatas (75:11). Others contend that there is no bishul akum concern, because rice bread is not oleh al shulchan melachim (Bach; Shach; Shu”t Avnei Neizer, Yoreh Deah 92:7).

What types of bread?

Although our article is about pas and not about bishul, we need to determine whether certain food items are considered bread or whether they are considered cooked foods. If they are bread, then the heter of pas paltar applies. On the other hand, if they qualify as shelakos, this heter does not apply.

One of the earliest responsa on this topic dates back to the days of the Rishonim. The Rivash was asked whether certain dough foods prepared on a stovetop may be purchased from non-Jews because they are considered pas paltar, or whether they are prohibited as shelakos. He concludes as follows: If the product is made from dough, called belilah avah in Hebrew, as opposed to a batter, and it is baked on a stovetop, it is considered bread and the heter to use pas paltar applies. However, if it is considered a batter (a belilah rakah), and it is fried or baked on a stovetop, then it depends on the following: If it is cooked on a stovetop or griddle using a liquid (such as oil), then it is considered a cooked item; the laws of bishul akum apply, and there would be no heter of pas paltar. However, if the liquid is used only to prevent it from burning, or so that it can be removed easily from the pan or griddle (called a “release agent”), it is considered bread, and not shelakos, and is permitted as pas paltar (Shu”t Harivash #28).

Thus, the heter of pas paltar would not apply to blintzes, pancakes or crepes, all of which involve frying a batter on a griddle or stovetop, but it would apply to waffles, which, according to the definition just given, would be considered baked.

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 this particular prohibition, created by Chazal to protect the Jewish people from major sins.

 

Slowly Positioned

Since our parsha shares with us Yaakov’s Avinu’s prayer prior to his confrontation with Eisav, I thought it appropriate to discuss some laws of tefillah.

Slowly Positioned

Question #1: Why windows?

Why does a shul have windows? Does this not create a distraction that one should avoid?

Question #2: A ruined davening!

When traveling, is it better to daven inside the ruins of a building or to pray outdoors?

Question #3: Strange title!

What does the title of this article have to do with its topic?

Answer:

At the beginning of parshas Vayishlach, the Torah teaches that one of the ways that Yaakov prepared for his encounter with Eisav was through prayer. This provides ample reason to discuss some of the laws regarding tefillah.

In Chapter 5 of Hilchos Tefillah, the Rambam discusses many important aspects of prayer that he terms “non-essential components,” meaning that if they were not done, one has still fulfilled his mitzvah to pray. Furthermore, someone unable to fulfill these laws is required to daven without observing them.

Correct location

The Rambam groups many of these rules under a heading he calls “the proper location in which to pray” (Rambam, Hilchos Tefillah 5:6). We can organize these laws into the following mnemonic heading:

Set place

One should have a set place where he davens.

Low

When standing to daven shemoneh esrei, one should stand in a low place. Certainly, one should not pray while standing on top of something.

Outdoors

One should not daven outdoors.

Wall

When praying, one should face a wall.

Lodging

One should not pray in a destroyed building, called, in Hebrew, a churvah.

Yerushalayim

In the room where one is davening, some windows or doors should face Yerushalayim and should be open.

As I mentioned above, these are all categorized as non-essential components of prayer. This means that although meeting these requirements is important, circumstances may dictate that one daven without observing them. We will now discuss the details of these six categories.

Set place

A person should daven regularly in the same place, as the Gemara states: Whoever establishes a place for his prayer, the G-d of Avraham will assist him. Furthermore, upon his passing, they will say about him that he was exceedingly humble and exceedingly righteous and a disciple of Avraham Avinu (Brachos 6b). This passage of Gemara is subsequently quoted verbatim by the Rif and the Rosh, and its conclusion is quoted by all the halachic authorities.

What does the Gemara mean when it says one should pray in an “established place”? This is disputed by the rishonim. Rabbeinu Yonah explains that the main thrust here is that one should pray in a place that is specially set aside for prayer, such as a shul. On the occasions when one cannot daven in shul and one must pray at home, he should have a set place at home where he prays. This should be a place where he will not be disturbed (see Magen Avraham 90:33). However, Rabbeinu Yonah rules that there is no requirement to daven in the same place in shul, which is usually referred to as a makom kavua, since the entire shul is established for prayer. Furthermore, according to Rabbeinu Yonah, it does not seem to make any difference which shul one attends, since one is, in any event, davening in a place that has been established for prayer. According to this approach, the reason why one who establishes a place for his prayer is promised such special rewards is because he was always careful to daven in a shul. On this basis, many rishonim note that someone who is unable to join the tzibur should still opt to daven in a shul, rather than at home (Rabbeinu Manoach, Hilchos Tefillah 5:6, based on Rambam, Hilchos Tefillah 8:1).

However, other rishonim have a different interpretation of “a set place” to pray. For example, the Rosh contends that even in a shul, one should have a set place where he prays. Rabbeinu Manoach explains that someone who has several shullen in his neighborhood from which to choose should not randomly daven at different ones. He implies that one should always daven in the same shul, and that this is included in the Gemara’s recommendation that one “establish a place for one’s prayer.” If we combine these two approaches, to be rewarded with the special brocha, it is insufficient for one always to be careful to daven in shul – one also must be careful to daven in the same place, in the same shul, at all times. The Shulchan Aruch (Orach Chayim 90:19) concludes that one should always have a set place to daven, whether at home or in shul. By the way, this law applies equally to women – a woman should have a set place in the house, out of the way of household traffic, where she can daven undisturbed.

Low

Daven from a low place

From the well-known words of Tehillim (130:1) Mima’amakim kerasicha Hashem, “from the depths I call out to You, Hashem,” the Gemara (Brachos 10b) derives that whenever one prays, one should endeavor to do so from a low place. For this reason, in many old shullen, the place from which the chazzan davened was somewhat sunk into the floor. This is also hinted at in the words of the Gemara (Brachos 34a) when it says that the chazzan is yoreid lifnei hateivah, descends when he leads the services.

There are two reasons why one should not stand on something while praying (Mahari Abohav, quoted by Beis Yosef, Orach Chayim 90):

  1. Acting this way shows a degree of haughtiness.
  2. It is distracting to do so, because the person is afraid he may fall.

Because of the second reason, the Mahari Abohav prohibits davening while standing atop furniture, even when it is less than three tefachim high, which is a subject of dispute. The Rema and the Elyah Rabbah (90:1), follow the approach of the Mahari Abohav and prohibit praying even while standing atop something lower than three tefachim. On the other hand, the Bach, the Taz and the Pri Chodosh permit this, although the Pri Chodosh qualifies that this is permitted only if the person himself will not be distracted because he is standing on something.

Under extenuating circumstances, or if the chazzan wants to daven from an elevated surface so that people can hear him, one may daven from atop a piece of furniture, as long as one is in a secure position (Beis Yosef, Orach Chayim 90, quoting several authorities).

Outdoors

One of the scholars of the Gemara, Rav Kahana, declared that praying in an exposed agricultural area is viewed as being an act of chutzpah (Brachos 34b). Based on this Gemara, the Tur and the Shulchan Aruch rule that one should not pray in an open area, such as a field (Orach Chayim 90:5).

Why is praying in a field considered arrogant? Rashi explains because praying in a secluded place is more conducive to humility and being in awe of G-d. This is explained by the Mahari Abohav (quoted by Beis Yosef, Orach Chayim 90) as meaning that, inherently, man should be inhibited about talking to G-d, and this should manifest itself in wanting to pray in a place where one has privacy. One who davens where there is nowhere to hide implies that his relationship with G-d is chummy.

An alternative explanation why it is considered chutzpah-dik to pray outdoors is that one who does so implies that, although there are distractions outdoors, he is confident that his concentration will not be affected. This attitude implies arrogance (Magen Avraham 90:6, in his explanation of Tosafos, Brachos 34b s.v. Chatzif).

The dispute how to explain this law has halachic ramifications. For example, may one, lechatchilah, daven outdoors in a place where he will not be disturbed?

According to the Magen Avraham’s reason, this is permitted, whereas according to the Mahari Abohav, it is prohibited when he has somewhere else to daven.

According to both approaches, one may pray under the heavens, provided that he is in an area surrounded by walls, even if there is no roof (Shaarei Teshuvah 90:1, quoting Batei Kehunah, Birkei Yosef, and Mizbach Adamah).

Yitzchak in a field

The commentaries (Tosafos, Levush, Bach) ask: If the Gemara rules that it is arrogant to daven outdoors, why did Yitzchak daven in an open field (Bereishis 24:63, see Rashi)? There are many different answers to this question. According to the Bach (Orach Chayim 90), Yitzchak davened between the trees, and this is considered similar to praying in an enclosed, unroofed area. Others explain that since he was praying on Har Hamoriah, the same holy place where the Beis Hamikdash would ultimately be built, this is not considered the same as davening in an open field (Tosafos, Brachos 34b s.v. Chatzif). A third approach is that Yitzchak davened in a place where no one would disturb him (Tosafos, second answer). This last answer implies that it is permitted to daven outdoors in a place where one will not be disturbed, which, as I mentioned above, corresponds only to the second opinion in the dispute as to why one should not daven outdoors. Some later authorities prohibit praying outdoors even in an area where one will not be disturbed, because they rule according to the other reason, that of the Mahari Abohav (Mishnah Berurah, 90:11).

The Magen Avraham (90:6) rules that the halachic assumption is that travelers may daven outdoors. The Mishnah Berurah (90:11) writes that if they have an option to daven under trees, that is preferable.

Wall

The verse in Melachim II 20:2 emphasizes that Chizkiyahu, the king of Yehudah, turned to the wall to pray. Based on this, the Gemara (Brachos 5b) derives that one should not pray with something intervening between himself and a wall. The Gemara’s example is that one should not pray facing a bed. Tosafos (s.v. Shelo) explains that this law does not apply to davening facing a piece of furniture that is not regularly moved, such as a bookcase (Shulchan Aruch, Orach Chayim 90:21; cf., however, Taz 90:5, who explains this idea in a different way).

Why did Chazal advise that one not pray with something intervening between himself and the wall? The Rambam explains that this is so that one not daven facing something that will distract him (quoted by Beis Yosef, Orach Chayim 90). For this reason, it does not apply to something being used to help one daven, such as a shtender, table or desk (Taz, Orach Chayim 90:5). It is also permitted to daven facing something lower than 10 tefachim or less wide than four tefachim (Rabbeinu Manoach, Hilchos Tefillah 5:6; Rema 90:21, quoting Avudraham), although there are authorities who disagree with this (Pri Chodosh; Maamar Mordechai 90:25). It is also permitted to pray facing people (Shulchan Aruch, Orach Chayim 90:21 and 98:4).

Since the Rambam rules that this law is in the category of things that are preferred but not vital, one who davened facing a bed has fulfilled his mitzvah. Furthermore, one who has nowhere to daven other than facing a bed or some other piece of furniture may do so. The Taz (90:5) rules that if the only convenient place to create a minyan requires davening with something intervening before the wall, one may do so. He contends that since the reason not to have something intervening is only to avoid distraction, one may disregard this problem when it is the best option. The Mishnah Berurah (90:63) rules according to this Taz.

Lodging

One should not pray in a churvah, a partially destroyed building. In the context of this halachah, the Gemara (Brachos 3a) presents the following anecdote. Rabbi Yosi said: Once, when I was traveling, I entered one of the wrecked hovels of Yerushalayim to pray. Eliyahu, may he be remembered for good, arrived and remained at the door of the hovel to protect me, until I completed my prayer. When I completed my prayer, I greeted him as one greets one’s teacher…

Eliyahu proceeded to ask Rabbi Yosi why he had entered a destroyed remnant of a building. Rabbi Yosi replied that he had entered in order to pray in a place that he would not be distracted by other travelers. Eliyahu answered him that he should have recited an abbreviated prayer, rather than enter a churvah to pray!

The Gemara proceeds to explain that there are three reasons why one should not enter a churvah.

Someone might suspect him of using the ruins for sinful activity.

The building might collapse.

Evil spirits might be there.

The Gemara (Brachos 3a-3b) explains that all three reasons are valid, and then elaborates on when some of the reasons apply, but not others. The halachic conclusion is that when there are at least two people and the structure looks stable, none of the three reasons apply, and they may enter the churvah. Therefore, a married couple may enter ruins that look stable, since none of the reasons apply (Pri Megadim, Eishel Avraham 90: 8). Also, one may enter a churvah in a case of life-threatening emergency, such as when it is the only place available to provide necessary shelter from the elements.

We should note that all three reasons mentioned for not entering a churvah have nothing to do with praying. A person alone may not enter ruins unless there is a life-threatening emergency, such as the need to rescue people from an imminent building collapse.

Outdoors or in a churvah?

If someone has two options for davening, outdoors or in a churvah, where should he daven? We see from the conversation between Eliyahu and Rabbi Yosi that it is better to daven outdoors than in a ruin (Magen Avraham 90:7).

Yerushalayim

When praying in a room, some windows or doors should face Yerushalayim and should be open, as implied by the verse in Daniel (6:11): “He had windows open, facing Jerusalem, in the upper story of his house and, three times a day… he prayed to Hashem.” From this verse, the Gemara (Brachos 31a) and the Rambam derive that one should pray in a building that contains windows. It is interesting to note that the Kesef Mishneh quotes a responsum of the Rambam that the requirement that there be windows applies only to someone davening at home, but not to a shul. However, the custom is to have windows in a shul. The later authorities note that this is implied by the Zohar, and contend that the Shulchan Aruch, the author of the Kesef Mishneh, himself, followed this approach (Pri Megadim, Eishel Avraham 90:4; Kaf Hachayim 90:19).

We should note that there appears to be a dispute among early authorities as to whether the primary reason that one should pray in a room with windows is so that one can see the heavens, or whether it is so that one look in the direction of Yerushalayim (see Pri Megadim, Eishel Avraham 90:4). This question will be discussed shortly.

Windows or outdoors?

What should a person do if he has two places in which he could daven, one outdoors and the other indoors in a room without windows. Since the Gemara states that it is a chutzpah to daven outdoors, the Pri Megadim rules that someone with this choice should pray indoors, in the building without windows (Eishel Avraham 90:4). This ruling is subsequently followed by the Mishnah Berurah (90:10).

Twelve windows

There is a practice that a shul has twelve windows. This is based on a Zohar (parshas Pekudei), which is quoted by the Beis Yosef (90) and the Shulchan Aruch (90:4), who says that “it is good” to have 12 windows. As long as at least one of these windows faces Yerushalayim, it does not matter in what the direction the other windows face (Pri Megadim, Eishel Avraham 90:4; Mishnah Berurah 90:9). Some windows or doors that face Yerushalayim should be open (Shulchan Aruch, Orach Chayim 90:4).

This ruling prompts the following question of the Magen Avraham (90:4): Why should a shul have windows? After all, one is supposed to daven by looking downward, to avoid distraction. The Magen Avraham answers that the windows are there so that if one is having difficulty concentrating while praying, he can look heavenward for inspiration. The Machatzis Hashekel explains, differently, that one is not supposed to look out the windows. He explains that the reason for the windows is so that one realizes that, wherever he is, the tefillah travels first to Yerushalayim and then to heaven.

Conclusion

Having studied many of the laws about proper positioning in davening, let us also use the above mnemonic to realize that we should always daven slowly and meaningfully. Understanding how much concern Chazal placed in the relatively minor aspects of davening should make us more aware of the fact that davening is our attempt at building a relationship with Hashem. As the Kuzari notes, every day should have three very high points: the three times that we daven. We should gain our strength and inspiration for the rest of the day from these three prayers.