Using a Thermos on Shabbos

Since most of the laws of Shabbos are derived from the construction of the Mishkan, it is an appropriate week to discuss:

Question #1: Using a Thermos

“May I pour hot water from an urn or a kettle that is on the blech into a thermos on Shabbos?”

Question #2: Wrapping a Thermos

“May I wrap a thermos bottle, containing hot water, with towels on Shabbos to keep the water hot?”

Introduction:

Explaining the background behind both of these questions involves an in-depth analysis of the rabbinic injunctions instituted by our Sages to safeguard the Shabbos. The laws of Shabbos include many Torah prohibitions, such as not to cook or stir a fire, and also many rabbinic prohibitions to guarantee that people not violate Torah laws. We will begin our explanation of this topic with an extensive glossary, but bear in mind that this is a brief overview of these concepts and not to be used for practical halacha.

Shehiyah – leaving food on the fire

Chazal prohibited shehiyah, which is leaving food on a fire or in an oven when Shabbos begins, because of concern that someone might mistakenly stir the coals. However, they permitted leaving food this way when one fulfills any one of the following three requirements:

1. Covering the fire

One may leave food cooking or warming as Shabbos begins, if he covers the fire in a way that lessens its heat and also reminds one not to stir the fire on Shabbos (see Shabbos 36b with Rashi and Ran). The most common method used today to accomplish this is to place a blech on top of the stove. It is preferable that the blech also cover the dials, to avoid inadvertently adjusting the flame (Shu”t Igros Moshe, Orach Chayim 1:93).

2. Adding raw meat

A second method to permit cooking or warming food when Shabbos begins is to place raw meat into the pot immediately before Shabbos (Shabbos 18b). By doing so, one knows that the food will certainly not be ready to eat for the Friday night meal, and it will be ready for the Shabbos day meal, so there is no need to be concerned about turning up the fire (Rashi ad locum).

Several late poskim are reluctant to rely on this heter today, for reasons beyond the scope of this article (Chazon Ish, Orach Chayim 37:22; Teshuvos Ivra in Kisvei Hagaon Rav Yosef Eliyahu Henkin, Volume 2, page 19).

3. Cooked before Shabbos

A third approach is to have the food cooked before Shabbos begins. According to Ashkenazic practice, one may leave the food even on an open fire, as long as it is considered edible when Shabbos begins. Sefardim follow a more stringent approach, allowing this heter only if the food is fully cooked and only for heating water and similar foods that do not improve by remaining longer on the fire. To prepare chamin shel Shabbat, what Ashkenazim call cholent, a Sefardi must rely on one of the other two heterim mentioned above, whereas an Ashkenazi may leave his food even on an open flame, if it is edible when Shabbos begins.

Chazarah – warming food on Shabbos

A second prohibition that Chazal instituted is called chazarah, which includes placing food, even if fully cooked, on a heat source on Shabbos to warm it up. The details of this prohibition are complicated, but for our purposes we will mention that it is permitted to return a pot or food to the fire on Shabbos, even if the food is fully cooked, only in two general ways:

A. The food is still hot, one removed it from the blech intending to return it to remain hot or warm, provided he kept his hand on the handle of  the pot the entire time that it was off the fire. Many Sefardim are lenient, maintaining that one does not need to observe the last two requirements, provided the pot of food was not placed on the ground; Ashkenazim can be lenient about returning the food to the fire, if someone mistakenly forgot these two requirements. Concerning how hot the food must be, Sefardim are stricter than Ashkenazim, contending that the food must be too hot to hold directly in one’s hand in order to permit returning. Ashkenazim rule that one may return the food as long as it is still warm enough to eat.

B. Under certain circumstances, Chazal permitted warming dry food on Shabbos in a way that is different from the way one normally cooks food. For example: One may place a fully-baked kugel on top of a pot that is on the fire.

Hatmanah – insulating

A third prohibition that Chazal instituted, one very relevant to our topic, is called hatmanah, wrapping or insulating food to keep it hot. This includes two different sets of rules – one for someone who wraps the food before Shabbos and one for someone who wants to wrap his food on Shabbos.

Before Shabbos

Chazal prohibited hatmanah before Shabbos in a way that increases the heat, such as with hot ash, fertilizer, or the remaining crushed-out pulp of olives or sesame seeds. These materials are called davar hamosif hevel, items that increase heat. This is prohibited because of a concern that someone might mistakenly stir coals on Shabbos (Shabbos 34b). However, it is permitted to insulate foods before Shabbos with materials that do not increase heat, called davar she’eino mosif hevel, such as clothing, blankets, towels, or sawdust. (In the case of sawdust, one may also have to deal with the laws of muktzah, but that is not today’s subject.)

Partial hatmanah before Shabbos

The Rishonim dispute what constitutes hatmanah. Does leaving food on a fire to continue warming when Shabbos arrives constitute hatmanah? Although this does not fulfill our usual definition of insulating, it warms the food on Shabbos by maintaining physical contact with a source of heat. According to many Rishonim, placing food so that it touches the fire is included in the prohibition of hatmanah (Ba’al Hamaor and Ran, beginning of Shabbos, Chapter 3). In their opinion, if one heats food on a wood fire and intends to leave the food that way into Shabbos, one must place the food atop a tripod or other device that raises it above the burning wood and coals. Placing the pot of food on the tripod avoids the prohibition of hatmanah (but may still involve the prohibition of shehiyah), since the food is no longer touching any heat source. Failing to distance the food from direct contact to the source of heat violates the prohibition of hatmanah, and the food may not be eaten on Shabbos.

According to other Rishonim, hatmanah is prohibited only when the pot of food is covered completely or mostly (see Tosafos, Shabbos 36b s.v. Lo; Sefer Hayashar, Cheilek Hachiddushim Chapter 235). The Shulchan Aruch (Orach Chayim 253:1) follows the first opinion that one may not have food lying directly on a flame or hot coals when Shabbos begins. Thus, Sefardim, who follow the Shulchan Aruch’s decisions, may not leave food for Shabbos touching the heat directly, even if it is otherwise exposed to the air. The Rema permits partial hatmanah on Shabbos, allowing placing a pot into warm coals before Shabbos, as long as the lid is not covered by the coals.

Thus, people on a camping trip over Shabbos who choose to keep their Friday night dinner warm by leaving it on their campfire need to know if they are Ashkenazim or Sefardim. If they are Ashkenazim, they may leave their food on the fire when Shabbos starts, as long as it is already cooked to the extent that it is edible. If they are Sefardim, they must have the food elevated above the fire when Shabbos begins, and, in addition, they can do this only with food that is fully cooked and does not improve when it stews longer.

Lid is not covered

If one is an Ashkenazi, how much of the pot may be covered without violating the laws of hatmanah? The Shulchan Aruch Harav (Kuntrus Acharon 257:3) contends that as long as the pot lid remains uncovered, one may cover all the sides of the pot. He permits placing a bottle into a pot of hot water before Shabbos, provided that the cover of the bottle is above the water level.

The Pri Megadim (Mishbetzos Zahav, Orach Chayim 259:3) discusses whether it is sufficient that the top of the pot be exposed, or whether a larger area of the pot must be exposed. Based on a ruling of the Taz (Orach Chayim 258:1), the Pri Megadim contends that one must leave most of the pot exposed to avoid violating hatmanah. (We should note that the Taz in Orach Chayim 253:14 appears to hold like the Shulchan Aruch Harav.)

This dispute would affect to what extent one may drape towels over an urn either before or on Shabbos. According to the Pri Megadim, one may do this only if the sides of the urn are predominantly exposed. According to the Shulchan Aruch Harav, it is sufficient if the sides are partially exposed.

Shabbos sleeve

I once saw a woman prepare her electric hot water urn by draping a cloth sleeve made especially for the urn and embroidered with the words “Lichvod Shabbos.” I asked her why she did that and she said, “It keeps it hotter.” When I told her she can’t use it because of hatmanah, she was incredulous, and responded, “but it says ‘lichvod Shabbos!’” I have no idea who produced this sleeve, but there was no hechsher embossed on it. Unfortunately, the label on the cloth does not permit its use.

By the way, there is a simple solution for this problem. If some space is left between the side of the urn and the towels or sleeve, this is not considered hatmanah and is permitted (Chayei Odom, Hilchos Shabbos 2:5). One may place a board or other item on top of the urn that is wider that the urn and drape the towel over the item. In this instance, one may leave the towel there all of Shabbos, and one may even place the towel there on Shabbos itself. Since the towel is not resting flush against the urn, this is not included in the prohibition of hatmanah.

On Shabbos

On Shabbos itself, Chazal prohibited covering the food, even with something that does not increase heat (Shabbos 34a). Therefore, one may not take a cholent pot or kettle and wrap it in towels on Shabbos to keep it hot. The reason for this prohibition is concern that someone insulating his food will discover that it is colder than he wants and will mistakenly heat it (Shabbos 34a).

Kli rishon and sheini

The next part of our glossary involves explaining the terms kli rishon, kli sheini and yad soledes bo.

A kli rishon is a pot, pan or other vessel containing food that was heated on top of a stove, inside an oven or any other way directly from a source of heat. A kli sheini is the platter or bowl into which food was poured from a kli rishon.

Here is a halachic example of the distinction between kli rishon and kli sheini. The Mishnah (Shabbos 42a) teaches that if a pan or pot of food was removed from the fire on Shabbos, one may not add spices into that pot, because this constitutes bishul. However, one may add spices to a platter which contains the food after it has been poured out of the original pot or pan. The second case is a kli sheini, meaning that the platter itself was never on the fire.

Why is there a halachic difference between a kli rishon and a kli sheini? Tosafos (Shabbos 40b s.v. Ushma) explains that when the vessel itself is on the fire or inside the oven, the heat of the food is sustained by the hot walls of the vessel, and that is why bishul occurs. However, when the container itself was never directly warmed, the walls of the vessel diminish the heat of the food placed therein. As a result, the food will not cook from the heat of the kli sheini walls. In other words, cooking requires not only sufficient heat, but also that the walls of the pot or vessel maintain that heat. Therefore, cooking occurs in a kli rishon even after it was removed from the fire, but, under most circumstances, not in a kli sheini.

Yad soledes bo

Whenever halacha discusses that something is hot, it means that it is at least yad soledes bo, a term meaning that it is hot enough that a person pulls his hand back instinctively when he touches it. There is much dispute among the halachic authorities as to how we measure this in degrees, which is a subtopic that we will leave for a different time.

Using a thermos

Now that we have completed our very extensive introduction, we can address the questions that began this article:

“May I pour hot water from an urn or a kettle that is on the blech into a thermos on Shabbos?”

“May I wrap a thermos bottle, containing hot water, with towels on Shabbos to keep the water hot?”

The Gemara (Shabbos 51a) quotes a Tosefta (see Shabbos 4:12) that provides the prologue to our question: “Rabban Shimon ben Gamliel says that they prohibited (insulating on Shabbos) only if the food is in the pot in which it was originally heated up, but if it was moved to a different pot, one may insulate it on Shabbos.” The Gemara explains that the prohibition to insulate food on Shabbos is out of concern that someone might increase the heat by stirring coals (see Shabbos 34a). Rashi explains that the reason Rabban Shimon ben Gamliel permitted wrapping up the pot of food in this case is because the person is actively trying to cool off the water by pouring it into a cooler vessel. However a thermos bottle that is being used to keep things hot may be different.

On the other hand, the Rambam (Hilchos Shabbos 4:5) cites this law as follows: “If you moved the cooked food or the hot water from one vessel to another, one is permitted to insulate the second vessel on Shabbos, provided one uses material that does not increase heat… because they forbade insulating food on Shabbos only in a kli rishon, in which the food was originally cooked, but once it was moved from that vessel, it is permitted.” Clearly, the Rambam understands that there was no decree prohibiting hatmanah in a kli sheini on Shabbos with devorim she’einam mosifim hevel. Following this logic, it would appear that one may pour hot water into a thermos bottle on Shabbos, even though one’s intent is to keep the water hot,since a thermos is only a kli sheini. Thus, whether one may pour hot water into a thermos on Shabbos may depend on this dispute between Rashi and the Rambam.

In general, halachic authorities rule according to the Rambam when he disputes with Rashi, both lechumrah and lekulah. The Birkei Yosef (Choshen Mishpat 25:31) explains the reason is because Rashi wrote his comments to explain the text of the Gemara, and it is possible that he might have reconsidered had he issued a final ruling.  Indeed, in this instance, several major authorities appear to rule according to the Rambam (Ran; Tur; Taz, Orach Chayim 257:5; see also Magen Avraham 252:13).

Notwithstanding the opinions of these authorities, Rav Moshe Feinstein writes that it is preferable to be machmir like Rashi (Shu”t Igros Moshe, Orach Chayim 1:95). Rav Moshe concludes, however, that, even according to Rashi, it is permitted to pour water into a thermos bottle on Shabbos, because of a different reason. The closing of a thermos bottle is not an act of hatmanah, but an act of closing the bottle. However, according to Rashi, it is certainly forbidden to wrap the thermos bottle with towels to keep it hot. According to Rambam, this should be permitted, because there is no hatmanah in a kli sheini.

In conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order that it be a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. Shabbos is a day on which we refrain from altering the world for our own purposes, and the goal of Shabbos is to allow Hashem’s rule to be the focus of creation, by refraining from our own creative acts (Shemos 20:11).

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 these prohibitions, created by Chazal to protect the Jewish people from major sins. Seeing how much attention the poskim apply to understanding the laws of Shabbos thoroughly should encourage us to make sure we know these laws well, in all their details.

Tidbits of Interest

Some Aspects of the Halachos of Ribbis

Question #1: Small Thanks

“May I give a small present of thanks to someone who helped me out with a loan?”

Question #2: Doing a chesed

“Can I violate ribbis by doing a chesed?”

Question #3: Lending my Credit Card

“How can you violate ribbis by letting someone use your credit card?”

There are a total of six different prohibitions that can be violated when creating and paying a loan in which there is interest. Someone who loans money for interest is in violation of the Torah’s prohibition, even before any interest is, indeed, charged or collected (see Bava Metzia 62a; Shu”t Mahar”a Sasson #162).

According to the Mishnah, not only do the borrower and the lender violate the prohibition against ribbis, but the witnesses to the loan, the co-signer on the loan and the scribe who writes up the loan document are also in violation of the prohibition (Bava Metzia 75b). Thus, anyone causing the loan to be finalized is in violation of this mitzvah. This would include someone who notarizes a loan document that includes a ribbis provision, and might even include a lawyer who draws up a document that includes provisions for ribbis (Bris Yehudah 1:6).

The halachos of ribbis are quite complex, and a review of some of the halachos is always in order. From my experience, even seasoned Torah scholars make mistakes about these halachos and may even have business activities that violate the prohibition of ribbis. What makes these matters even more regrettable is that virtually every one of these situations can be alleviated easily by usage of a heter iska, which will be explained later in this article.

Chazal were so concerned that someone would violate the prohibition of ribbis that they wanted the lender to gain no perceived advantages from the loan, even when the gains are completely of a non-monetary nature. Thus, the lender may not ask the borrower to do him a favor that he would not have asked had he not loaned him money (Tosafos, Bava Metzia 64b s.v. Avol). Similarly, the borrower may not invite the lender to his simcha, if he would not have invited him otherwise.  It is even prohibited for the borrower to thank the lender for the loan (Graz, Hilchos Ribbis #9).

Chazal also prohibited ribbis that occurs before or after the loan exists. For example, it is prohibited for the borrower to bring a small gift to the lender, as a token of thanks for the loan (Mishnah Bava Metzia 75b). This is prohibited, even after the loan has been paid off, and even many years later.

Ribbis Without a Loan

The halacha prohibits charging for the use of one’s money, even when a loan did not actually take place. Thus, a merchant may not add interest charges to a bill (sent to a Jew), because it is past due. He is permitted to bill for the actual expenses accrued due to his having had to send an additional bill, as well as any other collection costs he incurs. However, the merchant may not add service charges because he was forced to borrow money off his credit line to cover the shortfall.

The prohibition against charging for delay of payment also applies to acquisitions. Thus, a store may not charge one price for cash and a different price for credit or delayed payment.

The borrower may pay a co-signer to guarantee a gemach loan. In a situation where the borrower defaults and the co-signer has to pay off the loan, the co-signer may collect what he paid from the borrower (Taz to Yoreh Deah 170:3).

Neighborly Loans

When neighbors borrow small items such as flour, sugar, or eggs, a loan has taken place. They may not intentionally return more than was borrowed, which would be considered ribbis. However, if they are uncertain exactly how much flour or sugar they borrowed, they are permitted to return enough to be certain that they have definitely returned as much as they borrowed (see Bava Metzia 75a). One may return an item that is similar, but not identical, to what was borrowed, if the buyer and seller are not concerned about the difference. Thus, one who borrowed a loaf of bread of one brand need not be concerned whether the loaf of bread that he returns is the same brand or the identical size (Rema, Yoreh Deah 162:1). Similarly, one need not be concerned that the price may have fluctuated in the interim (Shaar HaTziyun 450:4). .

Ribbis Without any Benefit to the Lender

The Torah prohibits ribbis if the borrower pays more than he borrowed, even when no benefit is gained by the lender.

An actual case will show us how people can be guilty of this violation without realizing it. Reuvain is involved in many chesed projects, including raising money for tzedakah. Yankel had an excellent business opportunity and asked Reuvain to help him finance his new endeavor, of course in a permitted fashion. Reuvain decided that he would rather utilize this opportunity for a different mitzvah. He tells Yankel, “Instead of becoming a partner in your business, I will lend you the money interest free, but I’d like to make a condition that some of the maaser from the profits goes to support a yeshiva.”

Reuvain assumes that by making the arrangements this way, he fulfills the mitzvah of lending someone money, which, indeed, is a big mitzvah of chesed, and, in addition, he will be causing someone else to give tzedakah, which is also a tremendous mitzvah. Unfortunately for both Reuvain and Yaakov, since giving the tzedakah was a condition of the loan, this arrangement incurs a Biblical prohibition of ribbis. Although the lender, Reuvain, does not gain from the loan, since a condition of the loan was that Yankel pay more money than he borrowed, this is considered a Torah violation of ribbis (Rema, Yoreh Deah 160:14). (In this instance, there would be no violation of ribbis if he asked Yankel as a favor to donate to the tzedakah cause. Alternatively, they could arrange some form of heter iska, as will be explained later.)

Borrowing Credit or Credit Cards

Here is another instance that occurs frequently, in which people wish to do a tremendous chesed but in reality they are involved in a serious infraction of ribbis. Mrs. Friedman and Mrs. Goldstein meet at a closeout sale where top quality mattresses are available at an unbelievable price. Members of Mrs. Friedman’s family need new mattresses, and she realizes that by purchasing them at the closeout prices she will be saving hundreds of dollars.

Unfortunately, Mrs. Friedman does not have the money to purchase the mattresses, nor does she have any credit cards at her disposal. As she is bemoaning the fact that she will have to forgo this opportunity to save so much money, Mrs. Goldstein, always eager to do a chesed, offers Mrs. Friedman to charge the mattresses on her credit card. A very grateful Mrs. Friedman gladly takes up the opportunity and purchases the mattresses. Her intention is to make the credit card payments accrued to Mrs. Goldstein’s card until she can pay off the balance and interest for the mattresses.

Without either lady realizing it, they have now created a major halachic problem. The credit card company did not lend the money to Mrs. Friedman, but to Mrs. Goldstein, whose name is on the card. For this reason, what has transpired here is that two loans have taken place, both with interest: one from the credit card company to Mrs. Goldstein, and a second from Mrs. Goldstein to Mrs. Friedman. If Mrs. Friedman makes payments directly to the credit card company, she will be repaying Mrs. Goldstein’s loan to the credit company and her own loan to Mrs. Goldstein simultaneously. Thus, she is now paying her loan to Mrs.Goldstein with interest and  both well-meaning ladies will have violated the laws against ribbis (Shulchan Aruch Yoreh Deah 168:17). The parties involved should immediately consult a halachic authority who understands the halachos of ribbis well, since there are several ways that the situation described above can be rectified. (The different ways to alleviate the problem might depend on the individual’s circumstances, and are beyond the scope and length of this article.)

A similar problem often happens in a business partnership, in which one partner has access to a credit line and borrows money from the credit line for the benefit of the business. Since the credit line is in his name and not that of the business, without realizing it, he has borrowed money from the bank and then loaned it to the business, in which he is only one partner. Thus, he is now considered to be charging his partners for interest on a loan he has made to them. Again, this problem can be alleviated with a heter iska.

What is a heter iska?

A heter iska is a halachically approved way of restructuring a loan or debt so that it is some form of business deal that is not a loan. There are numerous ways of making a heter iska, and, indeed, different situations call for different types of heter iska. It is important for everyone who is involved in any type of business dealings to understand the fundamental principle of every heter iska: That a heter iska restructures the loan so that it is an investment or acquisition, rather than a loan.

Borrowing from Jewish-owned banks

Many people borrow money from banks, mortgage companies, credit card companies (including stores), brokerages, and credit unions, without verifying whether they are owned by a Jewish controlling interest. Without using a heter iska, it is forbidden to borrow money with interest from any Jewish-owned business, even if it is incorporated. Although there are some poskim who permit lending money to a corporation without a heter iska, as will be explained later in this article, this author is unaware of any posek who permits borrowing from a Jewish-owned corporation, without a heter iska.

Corporations

Rav Moshe Feinstein ruled that it is permitted to lend money to a Jewish-owned corporation, without incurring a problem of ribbis. In Rav Moshe’s opinion, a loan must have an individual who is responsible to pay for it. When a corporation borrows, no individual is responsible to pay for the loan. Therefore, Rav Moshe contends that a loan to a corporation does not incur the prohibition of ribbis, provided that no individual personally guarantees the loan (Shu”t Igros Moshe, Yoreh Deah 2:63). It should be noted that many other poskim do not agree with this lenience of Rav Moshe, contending that there can be ribbis even when a corporation borrows money (see extensive discussion in Bris Yehudah pg. 138). One practical difference is that, according to Rav Moshe, it is permitted to have a savings account in a Jewish-owned bank without having a heter iska, whereas, according to the other opinions, it is forbidden. However, according to all opinions it is forbidden to borrow from a Jewish-owned bank, credit union or brokerage without a heter iska. Thus, one may not buy stocks on margin from a Jewish-owned brokerage without a heter iska.

Hashkafah of Ribbis

The mitzvah of Ribbis poses an interesting hashkafah question. Why does the Torah forbid making a profit from my money? The Torah encourages earning a livelihood, so what is wrong with earning a profit from lending out money?

Many answers are offered to this question. Kli Yakar presents the following approach: When a farmer plows and plants his field, he knows well that if it does not rain sufficiently or if a blight attacks his crop, he will have nothing to show for his efforts. Thus, even with all his hishtadlus, he knows that he must daven for Hashem to help his efforts. Similarly, a person who opens a business knows well that even with all his planning, his business may not be successful. Thus, he also knows that he must daven for Hashem to help his efforts. However, someone who makes his parnasah from lending out money seems to have his entire livelihood totally secure. He has no daily reminder forcing him to pray for his daily livelihood. For this reason, explains the Kli Yakar, Hashem did not want a person to make his livelihood this way. By banning this method of parnasah, the Torah forced a person to make parnasah in a way that he must be reminded daily of his need for Hashem’s help.

Carrying in Public and the Use of an Eruv

Question #1:

“Is it a mitzvah to build an eruv?”

Question #2: Public or private ownership?

“Can I own a reshus harabim?”

Question #3:

“How does a little bit of wire enclose an area? Isn’t this a legal fiction?”

Answer:

In this week’s parsha, the Torah recounts the story of the mann, including the unbecoming episode where some people attempted to gather it on Shabbos. In the words of the Torah:

And Moshe said, “Eat it [the mann that remained from Friday] today, for today is Shabbos to Hashem. Today you will not find it [the mann] in the field. Six days you shall gather it, and the Seventh Day is Shabbos – There will be none.”

And it was on the Seventh Day. Some of the people went out to gather, and they did not find any.

And Hashem said to Moshe: “For how long will you refuse to observe My commandments and My teachings? See, Hashem gave you the Shabbos. For this reason, He provides you with two-day supply of bread on the sixth day. On the Seventh Day, each person should remain where he is and not leave his place” (Shemos 16:25- 29).

Although the Torah’s words “each person should remain where he is and not leave his place” might be understood to mean that even leaving one’s home is forbidden, the context implies that one may not leave one’s home while carrying the tools needed to gather the mann (Tosafos, Eruvin 17b). The main prohibition taught here is to refrain from carrying an object from one’s house or any other enclosed area (halachically called reshus hayachid) to an area available to the general public, a reshus harabim. Chazal further explain that moving an item in any way from a reshus hayachid to a reshus harabim violates the Torah law, whether one throws it, places it, hands it to someone else, or transports it in any other way (Shabbos 2a, 96). Furthermore, we derive from other sources that one may also not transport an item from a reshus harabim to a reshus hayachid, nor may one transport it four amos (about seven feet) or more within a reshus harabim (Shabbos 96b; Tosafos, Shabbos 2a s.v. pashat). Thus, carrying into, out of, or within a reshus harabim violates a severe Torah prohibition. For the sake of convenience, I will refer to the transport of an item from one reshus to another or within a reshus harabim as “carrying,” regardless of the method of conveyance.

One should note that with reference to the melacha of carrying on Shabbos, the terms reshus hayachid and reshus harabim do not relate to the ownership of the respective areas, but are determined by the extent that the areas are enclosed and how they are used. A reshus hayachid could certainly be public property, and there are ways whereby an individual could own a reshus harabim.

Notwithstanding the Torah’s clear prohibition against carrying into, from or within a reshus harabim, we are all familiar with the concept of an eruv that permits carrying in areas that are otherwise prohibited. You might ask, how can poles and wires permit that which is otherwise prohibited min haTorah? As we will soon see, it cannot – and the basis for permitting the use of an eruv is far more complicated.

We are also aware of controversies in which one respected authority certifies a particular eruv, while others contend that it is invalid. This is by no means a recent development. We find extensive disputes among early authorities regarding whether one may construct an eruv in certain areas. Some consider it a mitzvah to construct an eruv there, whereas others contend that the very same “eruv” is causing people to sin.

An Old Machlokes

Here is one instance. In the thirteenth century, Rav Yaakov ben Rav Moshe of Alinsiya wrote a letter to the Rosh explaining why he forbade constructing an eruv in his town. In his response, the Rosh contended that Rav Yaakov’s concerns were groundless, and that he should immediately construct an eruv. Subsequent correspondence reveals that Rav Yaakov did not change his mind and still refused to erect an eruv in his town.

The Rosh severely rebuked Rav Yaakov for this recalcitrance, insisting that if Rav Yaakov persisted, he, the Rosh, would place Rav Yaakov in cherem! The Rosh further contended that Rav Yaakov had the status of a zakein mamrei, a Torah scholar who rules against the decision of the Sanhedrin, which in the time of the Beis HaMikdash constitutes a capital offense (Shu”t HaRosh 21:8). This episode demonstrates that heated disputes over eruvin are by no means recent phenomena.

Is It a Mitzvah?

Before I present the arguments for and against eruv manufacture in the modern world, we should note that all accept that it is a mitzvah to erect a kosher eruv when this is halachically and practically possible, as the following anecdote indicates.

Rabbah the son of Rav Chanan asked Abayei: “How can it be that an area in which reside two such great scholars [Abayei and Abayei’s Rebbe] is without an eruv?” Abayei answered: “What should we do? It is not respectful for my Master to be involved, I am too busy with my studies, and the rest of the people are not concerned” (Eruvin 68a).

The commentaries note that Abayei accepted the position presented by Rabbah that one should build an eruv. Abayei merely deflected the inquiry by pointing out that no one was readily available to attend to the eruv, and that its construction did not preempt other activities: Abayei’s commitment to Torah study and the kovod haTorah of his Rebbe. Indeed, halachic authorities derive from this Talmudic passage that it is a mitzvah to erect an eruv whenever it is halachically permitted (Tashbeitz 2:37, quoted verbatim by the Birkei Yosef, Orach Chayim 363:2). These rulings are echoed by such luminaries as the Chasam Sofer (Shu”t Orach Chayim #99), the Avnei Neizer (Shu”t Avnei Neizer, Orach Chayim #266:4), the Levush Mordechai (Shu”t Levush Mordechai, Orach Chayim #4) and Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 1:139:5 s.v. Velichora).

I mentioned before that the construction of an eruv of poles and wire cannot permit carrying that is prohibited min haTorah. If this is true, upon what basis do we permit the construction of an eruv? To answer this question, we need to understand that not every open area is a reshus harabim – quite the contrary, a reshus harabim must meet very specific and complex requirements, including:

(A) It must be unroofed (Shabbos 5a).

(B) It must be meant for public use or thoroughfare (Shabbos 6a).

(C) It must be at least sixteen amos (about twenty-eight feet) wide (Shabbos 99a).

(D) According to most authorities, it cannot be inside an enclosed area (cf., however, Be’er Heiteiv 345:7, quoting Rashba; and Baal HaMaor, Eruvin 22a,quoting Rabbeinu Efrayim). The exact definition of an “enclosed area” is the subject of a major dispute that I will discuss.

(E) According to many authorities, it must be used by at least 600,000 people daily (Rashi, Eruvin 59a, but see Rashi ad loc. 6a where he requires only that the city have this many residents). This is derived from the Torah’s description of carrying into the encampment in the Desert, which we know was populated by 600,000 people.

(F) Many authorities require that it be a through street, or a gathering area that connects to a through street (Rashi, Eruvin 6a).

Some authorities add additional requirements.

Any area that does not meet the Torah’s definition of a reshus harabim yet is not enclosed is called a karmelis. One may not carry into, from or within a karmelis, following the same basic rules that prohibit carrying into a reshus harabim. However, since the prohibition not to carry in a karmelis is only rabbinic in origin, Chazal allowed a more lenient method of “enclosing” it.

Can One “Enclose” a Reshus Harabim?

As I mentioned earlier, carrying within a true reshus harabim is prohibited min haTorah – for this reason, a standard eruv does not permit carrying in such an area (Eruvin 6b). Nevertheless, large doors that restrict public traffic transform the reshus harabim into an area that one can enclose with an eruv. According to some authorities, the existence of these doors and occasionally closing them is sufficient for the area to lose its reshus harabim status. (Rashi, Eruvin 6b; however, cf. Rabbeinu Efrayim, quoted by Baal HaMaor, Eruvin 22a).

Please Close the Door!

There are some frum neighborhoods in Eretz Yisroel where a thoroughfare to a neighborhood or town is closed on Shabbos with doors, in order to allow an eruv to be constructed around the area. However, this approach is not practical in most places where people desire to construct an eruv.

So what does one do if one cannot close the area with doors?

This depends on the following issue: Does the area that one wants to enclose meet the requirements of a reshus harabim min haTorah, or is it only a karmelis? If the area is a reshus harabim min haTorah and one cannot occasionally close the area with doors, then there is no way to permit carrying in this area. One should abandon the idea of constructing an eruv around this city or neighborhood (see Eruvin 6a; Shulchan Aruch Orach Chayim 364:2). Depending on the circumstances, one may still be able to enclose smaller areas within the city.

Tzuras Hapesach

However, if the area one wants to enclose does not qualify as a reshus harabim, then most authorities rule that one may enclose the area by using a tzuras hapesach (plural, tzuros hapesach) – literally, “the form of a doorway.”(However, note that Shu”t Mishkenos Yaakov #120 s.v. Amnom and Shu”t Mishnas Rav Aharon #6 s.v. Kuntrus Be’Inyanei Eruvin paragraph #2 both forbid using a tzuras hapesach in many places that other poskim permit.)

A tzuras hapesach consists of two vertical side posts and a horizontal “lintel” that passes directly over them, thus vaguely resembling a doorway. According to halacha, a tzuras hapesach successfully encloses a karmelis area, but it cannot permit carrying in a true reshus harabim (Eruvin 6a). Using tzuros hapesach is the least expensive and most discreet way to construct an eruv. In a future article, I hope to explain some common problems that can occur while constructing tzuros hapesach and how to avoid them, and some important disputes relating to their construction.

Let us review. Carrying can be permitted in a karmelis, but not a reshus harabim, by enclosing the area with tzuros hapesach. Therefore, a decisive factor as to whether one can construct an eruv is whether the area is halachically a karmelis or a reshus harabim. If the area qualifies as a karmelis, then an eruv consisting of tzuros hapesach permits one to carry; if it is a reshus harabim, then tzuros hapesach do not. The issues concerning the definition of a reshus harabim form the basis of most controversies as to whether a specific eruv is kosher or not.

I will continue this article next week, bli neder.

Of Frogs and Sanctification

Most people find it fascinating to discover that the great tzadikim,Chananyah, Mishael and Azaryah, learned from the frogs in this week’s parsha that there is a mitzvah to die al kiddush Hashem. Stay tuned to find out…

Question: Amphibious actions!

Where do we find that the deeds of amphibians affect a halachic decision?

Introduction:

The book of Daniel tells us the story of the great tzadikim, Chananyah, Mishael and Azaryah, who were thrown into a fiery furnace for refusing to prostrate themselves before the statue that Nevuchadnetzar had erected (see Daniel 3:1-30). The Gemara (Pesachim 53b) explains that their decision was based on the actions of the frogs in Mitzrayim. How and what Chananyah, Mishael and Azaryah derived from the frogs will be discussed shortly, but we first need to understand some halachic background on this topic.

In general, the observance of mitzvos is superseded when life is threatened. We are well familiar with the law that, in the case of a medical, fire or other emergency, Shabbos observance is suspended to the extent necessary to protect life. The Gemara (Yoma 85a-b) quotes several halachic sources that demonstrate this concept. The conclusion is that we derive the rule that Shabbos observance is suspended to protect life from the pasuk, Vechai bahem (Vayikra 18:5),that the purpose of the mitzvos is to cherish life.

Kiddush Hashem

On the other hand, there is a mitzvah of the Torah, Venikdashti besoch B’nei Yisroel, in which Hashem commanded us to sanctify His presence within the Jewish people. This law teaches that, when an evil malefactor wants Jews to desecrate the Torah, we are sometimes required to sacrifice our lives. When ten Jews are aware that, under these circumstances, a Jew is being coerced to break any commandment, Kiddush Hashem requires that he surrender his life (Sanhedrin 74b). In this situation, someone who did not surrender his life violated not only the positive mitzvah (mitzvas aseh) of Venikdashti besoch B’nei Yisroel, but he also violated a negative command (mitzvas lo sa’aseh) of Velo sechalelu es shem kodshi.

However, when an evil malefactor is coercing a Jew to violate the Torah, but ten Jews are unaware that this is happening, the Jew is not obligated to give up his life, and, according to many authorities, he is not permitted to. There are other exceptions when one is not required or permitted to give up one’s life, which we will learn about shortly.

The ruling requiring surrendering one’s life is only when the goal of the oppressor is exclusively to get Jews to violate the mitzvos. However, if his goal is to get some benefit or pleasure for himself, there is no obligation to surrender one’s life. The Gemara (Sanhedrin 74b) presents the following theoretical example to define the difference.

Rava said, “An idol worshipper who tells a Jew, ‘Cut that hay on Shabbos and feed it to the animals, or I will kill you,’ the Jew should cut the hay and not allow himself to be killed. On the other hand, if the idol worshipper demands of him, ‘Cut that hay on Shabbos and throw it into the fire,’ the Jew should allow himself to be killed and not cut the hay. What is the difference? In the latter case, the goal of the malevolent command is to have the Jew violate the mitzvah.”

Rashi notes that Rava was discussing a situation that took place in the presence of ten Jews or, as we will soon explain, during a time of persecution. Otherwise, a Jew is not required, and, according to some opinions, not permitted to give up his life.

What about idols?

Aside from the law of Kiddush Hashem that I just discussed, there are other situations in which one is required to surrender one’s life, rather than breach the Torah. The Gemara (Sanhedrin 74a) cites a dispute among tana’im concerning what is the halacha when someone’s life is threatened should he refuse to worship an idol. Rabbi Yishmael rules that, if the situation is in private, Vechai bahem applies, even regarding the prohibition of avodah zarah. In his opinion, one may perform the external motions that appear to be idolatrous to save one’s life. However, when the situation is in public, meaning that ten Jews know about it, Rabbi Yishmael agrees that the pasuk of Velo sechalelu es shem kodshi requires surrendering one’s life, rather than violating the Torah.

Rabbi Eliezer disagrees, ruling that the sin of avodah zarah requires yeihareig ve’al yaavor, meaning that one is always required to surrender one’s life rather than violate the prohibition against idolatry, even if the sin will be performed in private. Rabbi Eliezer derives this ruling from the pasuk we say several times daily, Ve’ohavto es Hashem Elokecha bechol levavcho uvechol nafshecho uvechol me’odecho, that we are required to love Hashem with our entire heart, soul and resources, which includes that we not renounce our belief in Him; we are required to demonstrate our love for Hashem, even in the event that it would require the ultimate sacrifice (Sanhedrin 74a).

Talmudic conclusion

Quoting the tana Rabbi Shimon ben Yehotzadok, the Gemara says that the Beis Din Hagadol, the final authority of halacha for the Jewish people, concluded that for three cardinal sins — idol worship, giluy arayos (incest, adultery and similar offenses), and murder — we always say yeihareig ve’al yaavor. The requirement to sacrifice one’s life rather than violate giluy arayos or murder is derived from other sources (Sanhedrin 74a).

In this context, the Gemara cites the following anecdote. A man approached the amora Rava, asking him the following she’eilah: The warlord of his town had told this man, “Go kill so-and-so; if not, I will kill you!” The man wanted to know whether he was permitted to follow the dictate of the warlord to save his life. Rava answered that the Torah does not permit murder, even to save your own life, because of the following point, “who tells you that your blood is redder. Perhaps the other person’s blood is redder than yours!” In other words, who tells you that Hashem prefers that you survive, when you have to kill someone else in order to do so (Nimukei Yosef ad locum)?

Thus, we see that there are two situations in which we rule yeihareig ve’al yaavor: When saving my life will require that I violate one of the three cardinal sins, or when the intent of the one posing the threat is only to get Jews to violate the mitzvos, and ten Jews are aware that this is happening.

During times of persecution

The Gemara (Sanhedrin 74a) adds a third situation in which the rule is yeihareig ve’al yaavor: When the government is intent on destroying Yiddishkeit, which the Gemara calls sha’as gezeiras malchus, literally, at the time of government decrees, one is required to give up one’s life rather than violate the Torah, even for a “light mitzvah.” What is defined as a “light” or small mitzvah? The Gemara explains that this includes even the difference between the color of the shoelaces that Jews and gentiles use. Rashi explains that the case is when there is a Jewish custom that is more modest. Since the Jews have accepted this practice, if the gentile is trying to get a Jew to violate accepted Jewish practice, he is required to give up his life. It is a Chillul Hashem to allow a gentile to force a Jew to violate accepted Jewish practice, and a Kiddush Hashem to follow Jewish practice. However, this halacha applies only when it is a time of religious persecution.

Rashi’s older contemporary, the Rif, explains that the gentiles wore red shoelaces. Although there is no halachic prohibition to wear a specific color of shoelace, since this was the defining difference in garb between Jew and non-Jew in that time and place, if a gentile insisted that he wants a Jew to dress like a gentile does, one is required to sacrifice his life and not do so.

Sum up

Although when life is threatened, the observance of a mitzvah is generally suspended, in three situations one is required to sacrifice one’s life rather than violate the Torah. The three situations are:

1. Being forced to commit one of the three cardinal sins.

2. At a time of persecution.

3. When someone is forcing a Jew to violate accepted Jewish law or practice in the presence of or with the knowledge of ten Jews.

The latter cases are true only when the perpetrator’s motive is to force Jews to forsake G-d’s law, but not when he is interested in benefiting from the transgression.

Based on the above, let us quote the Rambam:

“All members of the Jewish people are commanded to sanctify His great Name, as the Torah states, Venikdashti besoch B’nei Yisroel, and they are admonished not to desecrate it, as the Torah states, Velo sechalelu es sheim kodshi. How does this law manifest itself? If an idol worshipper will stand up and force a Jew to violate one of the mitzvos of the Torah in a situation that, if the Jew refuses, the idol worshipper will kill him, the Jew should transgress the mitzvah and not allow himself to be killed, since the Torah states, Vechai bahem — You shall live with them, and not die because of them. If he chooses to die and not violate the mitzvah, he is held responsible for the loss of his own life. When is this true? — regarding mitzvos other than idolatry, gilui arayos and shedding blood. However, regarding these three sins, if the idol worshipper tells him, “Violate one of these sins or be killed,” the Jew should allow himself to be killed and not violate the mitzvah.

“When is this true? When the idol worshipper’s intention is for his own pleasure, such as, he is forcing the Jew to build a house or to cook for the idol worshipper on Shabbos… . However, if the idol worshipper’s only goal is that the Jew violate the mitzvah, if… ten Jews are not present, the Jew should violate the mitzvah and not be killed. But if the idol worshipper forces the Jew in the presence of ten Jews, the Jew is required to give up his life rather than violate the mitzvah, even if it is one of the other mitzvos. Furthermore, these rules apply only when it is not a time when the gentiles are making decrees against the Jews. However, in an era that they are, such as when an evil king, like Nevuchadnetzar, makes decrees against the Jews to violate their religion or one of their mitzvos, a Jew is required to give up his life, regardless of which mitzvah he is being coerced to transgress and regardless as to whether this coercion is in the presence of ten Jews or in private” (Hilchos Yesodei HaTorah 5:1-3).

The Rambam continues: In every instance when it says that he should violate the mitzvah and not be killed, and the Jew chose instead to be killed rather than violate the mitzvah, he is guilty of giving up his life. And in every instance when it says that the Jew should give up his life rather than violate the mitzvah, and he surrendered his life and did not violate the mitzvah, he has sanctified Hashem’s Name. If this happened in the presence of ten Jews, he sanctified Hashem’s Name in public, as was done by Daniel, Chananyah, Mishael, Azaryah, Rabbi Akiva and others like them. These are the holy ones whose greatness is above all others… . However, one who was required to surrender his life, but chose instead to violate the mitzvah and did not surrender his life has desecrated Hashem’s Name, and, if ten Jews were present, he has desecrated Hashem’s Namein public, abrogated the positive mitzvah of the Torah, Kiddush Hashem, and violated a negative mitzvah of the Torah, Chillul Hashem. Nevertheless, since his violation was coerced, he is not culpable of transgressing of his own will and, therefore, not subject to punishment for the prohibition violated, since a person is not punished for a sin performed under coercion (Hilchos Yesodei HaTorah 5:4).

Elisha, owner of wings

In this context, the Gemara (Shabbos 130a) shares with us the following story about a tzadik named Elisha, who lived during the time of the Roman persecution:

“Why was he called Elisha, owner of wings?” It once happened that the evil kingdom (a Talmudic reference to the Roman Empire) decreed that any Jew who wears tefillin will have his brain smashed. Elisha went through the streets, proudly wearing his tefillin. A Roman soldier saw him and gave chase. Elisha whipped off his tefillin and hid them in his hands. The soldier caught him and demanded that Elisha tell him what he was holding. Elisha answered him that he was holding “dove’s wings.” Elisha then opened his hands and, indeed, he was holding the wings of doves! (We will soon explain why he used this example.)

How could he?

The rishonim ask why Elisha was permitted to remove the tefillin from his head. This was clearly an era of gezeirah, and, as we noted above, in such an era, one is required to give up one’s life even for a custom of the Jews, and certainly for a mitzvah of the Torah!

The rishonim answer that there is a difference between positive mitzvos and prohibitions. Since the evildoers could physically stop the Jews from keeping mitzvos requiring actions, e.g., by locking them up without access to tefillin, there is no requirement to sacrifice one’s life to fulfill them (Ran, Pesachim 6a in Rif’s dapim). However, in the case of participating in a forbidden activity in an era of gezeirah, there the Torah declared yeihoreig ve’al yaavor, that I am required to give up my life. This ruling is accepted by the poskim as the normative halacha (Shulchan Aruch, Yoreh Deah 157).

Return of the frogs

As mentioned in our introduction, the Gemara (Pesachim 53b) teaches that Chananyah, Mishael and Azaryah derived from the frogs that they could give up their lives, rather than bow to the statue. Chananyah, Mishael and Azaryah noted that the frogs jumped into the Egyptian ovens when the ovens were hot, thus cremating themselves. Thus, the frogs, who had no mitzvah of sanctifying Hashem’s Name, still did so. Chananyah, Mishael and Azaryah reasoned a fortiori (kal vechomer): if the frogs, who were not required to sanctify Hashem’s Name, burned themselves for the sake of demonstrating Hashem’s greatness, we certainly should.

Tosafos (ad locum) questions: Why did Chananyah, Mishael and Azaryah require a kal vechomer from the frogs to conclude that they should sacrifice themselves? The event with the statue of Nevuchadnetzar happened in public, and when an incident occurs in public and the evil person’s goal is to demonstrate that he can force a Jew to violate mitzvos, the Gemara requires that one give up one’s life. In such a case, it is a requirement to do so, even for a small mitzvah or even for a Jewish custom.

Rabbeinu Tam explained that, technically speaking, Chananyah, Mishael and Azaryah were not required to sacrifice themselves, because the statue that Nevuchadnetzar erected was not an idol – it was similar to the statues that we find in our cities whose purpose is to honor someone. Nevuchadnetzar instructed people to bow to the statue to demonstrate their subservience to him. Thus, there was no requirement for Chananyah, Mishael and Azaryah to give up their lives, but they derived from the frogs that it was permitted for them to do so.

In another approach, Rabbeinu Tam’s nephew, Rabbeinu Yitzchak (usually called simply the Ri) disagreed that this is what happened in the story of Chananyah, Mishael and Azaryah. Although he clearly accepts Rabbeinu Tam’s halachic analysis, he feels that the statue placed there by Nevuchadnetzar was, indeed, an idol. To answer the question why Chananyah, Mishael and Azaryah were not required to give up their lives because of the mitzvah of Kiddush Hashem, and needed reassurance from the frogs that they were permitted to sacrifice themselves, the Ri answers that Chananyah, Mishael and Azaryah could have fled. Their question was whether they were required to flee to save their lives or whether they were permitted to remain, knowing that by staying they would be required to give up their lives for Kiddush Hashem. They derived from the frogs that they were permitted to give up their lives for Kiddush Hashem, even though they had the opportunity to avoid the situation.

We see from this discussion two additional points:

1. Although there is a mitzvah of Kiddush Hashem, there is no requirement to make sure that one remains in his location to have the opportunity to perform the mitzvah. However, according to the Ri, it is permitted, and perhaps even meritorious, to do so.

2. We should note that the Rambam quoted above stated that, as a rule of thumb, when the Torah does not require yeihareig ve’al yaavor, one is prohibited from giving up one’s life to do so. This implies that the Rambam disagrees with Rabbeinu Tam, who ruled that Chananyah, Mishael and Azaryah were not required to sacrifice themselves in their situation, but were permitted to do so.

However, the Nimukei Yosef concludes that even the Rambam might agree here. When a person whom the Nimukei Yosef describes as a great tzadik sees that the generation is lax, he is permitted to sacrifice himself in order to teach his generation. He rallies evidence for this principle from the story of Chananyah, Mishael and Azaryah.

Conclusion

I quoted above the story of the great tzadik called Elisha, “the owner of wings,” and how he earned his moniker. The Gemara continues its sharing of the anecdote by asking why Elisha said that his tefillin were dove’s wings. The Gemara concludes that the Jewish people are compared to doves, as the pasuk in Tehillim (68:14) compares the Jewish people to the wings of a dove that are coated with silver, and her wing-feathers are like fine gold. Just as the dove is protected by its wings, Klal Yisroel is protected by its mitzvos (Shabbos 130a)! May we always be protected by our mitzvos and never have to live through times when our mitzvos or lives are challenged.

When May I Remove a Tree? Part II

The Midrash teaches that Yaakov brought with him to Egypt the shittim trees that would be planted so that the Bnei Yisroel would later be able to leave Egypt with wood to build the Mishkan. There is no halachic problem with uprooting non-fruit-bearing trees for lumber, but there is at times a halachic problem with uprooting fruit trees for lumber or other use. So, this provides an opportunity to discuss…

Question #1: Darkening Peaches

“A peach tree is now blocking sunlight from reaching our house. May we cut down the tree?”

Question #2: Building Expansion

The Goldbergs purchased a house hoping to expand it onto its lot that contains several fruit trees. May they remove the trees to expand their house?

Question #3: For a Shul

Congregation Ohavei Torah purchased a plot of land for their new shul building, but the property contains some fruit trees. May they chop down the trees for the mitzvah of building a new Beis Hakenesses?

Question #4: For a Sukkah

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

In a previous article, we discussed several issues concerning when it is permitted to remove or destroy a fruit tree. The Torah teaches that when going to war one may not destroy fruit trees unless doing so serves a strategic purpose, and that in general it is forbidden to destroy fruit trees randomly. In that article, I mentioned that there is a dispute among authorities whether one may raze trees in order to build a house in their place. We also learned that the Gemara considers it dangerous to destroy fruit trees, and, according to some authorities, this is true even when there is no prohibition involved in razing the tree.

A Shady Deal

At this point, let us refer to our opening question: “A peach tree is now blocking sunlight from reaching our house. May we cut down the tree?”

This actual question was addressed to the Chavos Yair, a great seventeenth-century, central-European posek.

Based on the opinion of the Rosh (Bava Kamma 8:15),who permitted cutting down a tree in order to construct a house, the Chavos Yair allowed chopping down the offending peach tree (Shu”t Chavos Yair #195). However, the Chavos Yair rules that this is permitted only when one cannot simply remove some branches to allow the light into his house. When one can remove some branches and spare the tree, the Chavos Yair prohibits chopping down the tree since it is unnecessary to destroy the entire tree. Even though the branches will eventually grow and again block his light, the Chavos Yair does not permit chopping down the entire tree, but requires one to repeatedly trim it. Thus, although he accepts the Rosh’s ruling permitting removing a tree for the sake of a dwelling, the Chavos Yair notes that this is permitted only when one cannot have the house and eat the fruits, too.

Expanding Living Space

The Chavos Yair further rules that the Rosh,who permitted chopping down a tree to allow construction on its place, only permitted this for an essential need of the house, and not merely to make the house nicer, such as to widen his yard or to provide a place to relax.

At this point, we can probably answer another of our opening questions. The Goldbergs purchased a house hoping to expand it onto its lot that contains several fruit trees. May they remove the trees to expand their house?

Even according to the Rosh, they may remove the trees only to provide something essential for the house. Thus, if the need is essential, this heter will apply. (However, we will soon share a different possible solution.)

Some Are Stricter

The Chavos Yair follows the Rosh’s approach and permits removing a fruit tree if there is no other way to build a house.However, not all later authorities are this lenient. When asked this exact question — “May one cut down a tree to construct a house?” — the Netziv,one of the leading authorities of nineteenth-century Lithuania, was not comfortable with relying on the opinion of the Rosh. Rather, he concluded that there are early authorities who disagree with the Rosh and permit razing a fruit tree only in the three situations that the Gemara mentions: When the tree is more valuable as lumber, when it is producing almost no fruit, or when it is affecting the growth of other fruit trees. In the first two instances, it is no longer considered a fruit tree. The Netziv (Shu”t Meisheiv Davar 2:56) provides two different reasons why, if it is still considered a fruit tree, one cannot remove it.

(1) One may chop down a fruit tree only when it is damaging other fruit trees.

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

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

At this point, I refer back to the next of our original questions: 

“Congregation Ohavei Torah purchased a plot of land for their new shul building, but the property contains some fruit trees. May they chop down the trees for the mitzvah of building a new Beis Hakenesses?”

What About for Temporary Use?

This case is fairly similar to an actual shaylah that is discussed by the Yaavetz (She’eilas Yaavetz 1:76), a prominent18th century posek in Germany. A community is renting a house from a non-Jew for their shul. The number of congregants is now, thank G-d, exceeding the size of the shul building, and the gentile owner has allowed them to expand the building on which they still have nine more years on their lease. However, there is only one direction in which they can expand their building, and do to so would require uprooting a grape vine. The gentile owner has permitted them to rip out the vine for this purpose. The community’s question is whether expanding the shul is a valid reason to permit ripping out a grape vine, which is halachically considered a fruit tree. The question is more significant in light of the fact that the community’s benefit may be only temporary — the gentile landlord may not renew their lease when it comes up for renewal, and they may then need to look for new quarters.

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

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

Saving the Goldbergs!

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

According to the Yaavetz, they may remove the trees and plant them elsewhere, and then expand their house onto the extended lot.Again, I suggest that the Goldbergs check whether this relocation of the tree can realistically be done.

There are a few concerns about relying on this ruling of the Yaavetz. First, I have been told that although the Yaavetz may have known that this can be done, the assumption among today’s experts is that a transplanted mature fruit tree will not survive. Thus, this will be considered destroying the tree,

Furthermore, even assuming that the tree can be successfully replanted, the ruling of the Yaavetz is not without its detractors. The Chasam Sofer (Yoreh Deah #102) the posek hador of early nineteenth-century central Europe, concludes that one should not rely on this idea of the Yaavetz to remove a tree when other lenient reasons do not apply. However, he does rule that even when halacha accepts that one may uproot a fruit tree, if one can replant it one may not destroy it, since the demolition of the tree is unnecessary. Thus, if a fruit tree is damaging other trees, one may destroy it only when replanting it is not an option.

Shady Mitzvah

At this point, I would like to discuss our fourth opening question:

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

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

Conclusion

Thus we see that there are different conclusions as to when one may destroy a fruit tree for a valid reason, and each person should ask his own rav what to do.

The Ramban explains that the reason for the mitzvah is that one should have trust in Hashem that He will assist us in vanquishing our enemies and then we will be able to use the fruit from this tree. Destroying the tree when this serves no strategic benefit means that we think we will never use it. Rather, one should feel that one will gain from this tree as soon as the enemy is vanquished. We should assume that the area and all it contains will become our property, so why destroy the tree growing there innocently? One should take care of this tree just as one would take care of a tree that is already my personal property.

High in the Thigh: The Mitzvah of Gid Hano’she

In the process of vanquishing his opponent wrestler, Yaakov Avinu was left with an injured thigh. To commemorate this event, the Torah teaches al kein lo yochelu benei Yisroel es gid hano’she asher al kaf hayarech ad hayom hazeh ki naga bechaf yerech Yaakov begid hano’she, “Therefore, the children of Israel may not consume the sinew that was displaced, which lies upon the ‘spoon’ of the thigh, since he struck the ‘spoon’ of Yaakov’s thigh on the displaced sinew (Bereishis 32:33 with Rashi).” As we will see shortly, this pasuk is written with precision, and we derive most of the halachos of this mitzvah from its words.

We see from the pasuk that Yaakov’s injury was that his “sinew” was “displaced.” The word “sinew” is not a scientific term, but a household or butcher’s term. Its Hebrew equivalent, gid, describes stringy body parts whose texture is too tough to chew comfortably, and may refer to nerves, tendons, ligaments, or even blood vessels (see Rambam, Peirush Hamishnayos, Zevachim 3:4).

In Yaakov’s case, the sinew involved is what is known in anatomy as the sciatic nerve, which runs through the pelvis and upper leg, from the lower back over the top of the hip and down the leg, at which point it divides into other nerves. The Torah describes this as the sinew that lies across the kaf hayarech, which literally means the “spoon of the thigh.” This refers to a piece of muscle that lies atop the femur and that has a spoon-like shape. Part of the sciatic nerve lies on top of this muscle, wedged against the bone socket on the other side. The Torah prohibits the consumption of this nerve, notwithstanding that it is not tasty, nor really edible. (It is not technically accurate to translate kaf hayarech as the socket, since the socket is above or in front of the femur [depending on whether we are describing a two-legged or a four-legged animal] and above or in front of the sciatic nerve. I will note that this is not the only mistranslation of this verse I have found in works that are reputed to be authoritative.)

This mitzvah is not mentioned anywhere else in the Torah. According to the Sefer Hachinuch, which lists the mitzvos in the order of their appearance in the Torah, this is the third mitzvah and the first lo saaseh of the 613 mitzvos. An entire chapter of Mishnayos, the seventh chapter of Chullin, is devoted to this mitzvah. Let us understand its details.

Not for the birds

The Mishnah states that the prohibition of gid hano’she does not apply to birds, because they do not have a “kaf,” which I have translated as the “spoon” of the thigh. Although birds have both a femur and a sciatic nerve, they are excluded from the prohibition of gid hano’she because the shape of their bones and muscles is different and does not fit the Torah’s description of the mitzvah (Rambam, Hilchos Ma’achalos Asurus 8:4). The Rambam (Commentary to the Mishnah) explains that the reason for this law is because the structure of the bird’s leg is very different from that of a man, and therefore not reminiscent of the miracle that occurred to Yaakov. (Those who would like to see an explanation of the Talmudic passage involved should look at the encyclopedic work Sichas Chullin and other contemporary works.)

The Gemara (Chullin 92b) discusses whether the halacha exempting birds from the prohibition of gid hano’she is true if a particular individual bird has an unusually shaped leg that resembles the “socket” of an animal, or, conversely, if the prohibition of gid hano’she still applies if an animal’s leg is misshapen, such that the muscle on its upper femur is not shaped like a spoon. The Gemara does not reach a conclusion on this question. Since it is an unresolved halachic issue germane to a Torah prohibition, a safek de’oraysa, the Rambam (Hilchos Ma’achalos Asurus 8:4) and the Shulchan Aruch (Yoreh Deah 65:5) conclude that both of these instances are prohibited.

Non-kosher species

Is the prohibition of gid hano’she limited to kosher species, or does it apply also to non-kosher species? This is actually a dispute among tanna’im. Rabbi Shimon contends that the prohibition of gid hano’she is limited to kosher species, whereas the tanna’im who disagree with him contend that the prohibition of gid hano’she applies equally to non-kosher species. In their opinion, the sciatic nerve of a horse, camel, pig or donkey is included in the prohibition of gid hano’she. The Rambam (Hilchos Ma’achalos Asurus 8:5) rules like Rabbi Shimon.

What difference does it make whether this sinew is prohibited as a gid hano’she, when it will be prohibited anyway as non-kosher? The answer is that since sinews have no flavor on their own, according to the opinion we will soon explain that ein begiddin benosein taam, sinews from a non-kosher species are not prohibited min haTorah. However, the gid hano’she would be prohibited min haTorah, according to the tanna’im who disagree with Rabbi Shimon.

Which thigh?

A person has two sciatic nerves, one on each leg. The verse implies that Yaakov was wounded on only one side. Which of his sciatic nerves was injured? Nothing overt in the story tells us. However, we can prove what happened from a passage of the Gemara, although we may be left to wonder how the Gemara knew this. There is a dispute among the tanna’im (Chullin 91a) whether the prohibition of gid hano’she applies to the sinews of both the right and left sides, or only to that of the right side. Both opinions understand that Yaakov was injured only in his right thigh. The question is whether Hashem prohibited the sciatic nerves of both sides so that we remember what happened, or only the one on the right thigh. We follow the opinion that it applies to both sides (Rambam, Hilchos Ma’achalos Asurus 8:1).

Inner and outer

On each thigh, there are actually two sinews that can be called the gid hano’she and are near one another. The inner gid, thus called because it runs alongside the bone on the interior of the animal, is the true gid hano’she, whose consumption is prohibited by the Torah. The outer gid does not lie on top of the thigh and is therefore not prohibited min haTorah. Nevertheless, Chazal prohibited eating the outer gid, also (Chullin 91a).

The tanna’im dispute how much of the inner gid is prohibited min haTorah. Rabbi Meir contends that the entire nerve is prohibited min haTorah (Chullin 92b), whereas the chachamim contend that, min haTorah, only the part of the gid lying atop the thigh bone is prohibited. In their opinion, the rest of the gid is prohibited only miderabbanan. A third opinion, that of Rabbi Yehudah, contends that the rest of the nerve is not prohibited even miderabbanan, and, therefore, he did not require its removal (Chullin 92b, 96a).

The dispute among the tanna’im appears to be how one translates the words of the Torah, the children of Israel may not consume the sinew that was displaced, which lies upon the “spoon” of the thigh. According to Rabbi Meir, the Torah is merely explaining the location of this sinew, but it is prohibited in its entirety. According to the other tanna’im, the prohibition is limited to the part of the sinew that “lies atop” the thigh, but not its continuation.

“Fat of the gid

The sciatic nerve lies protected in a layer of fat. This fat is called shumano shel gid and is permitted min haTorah. However, already in the time of the Gemara it was established practice not to eat it (Chullin 91a). It is therefore treated halachically as an issur derabbanan, a rabbinically established prohibition, and it must be removed together with both the inner and the outer giddin.

How early?

The tanna’im also dispute whether the prohibition of gid hano’she began already in the days of Yaakov Avinu, or whether it was first prohibited when the Jews received the Torah at Har Sinai (Mishnah, Chullin 100b).

Chayos

The Mishnah teaches that the mitzvah of gid hano’she applies to all kosher mammals. This includes the species of beheimah and of chayah. In other words, although there are mitzvos that apply to beheimah but not to chayah, and vice versa, the mitzvah of gid hano’she applies to both.

It is difficult to define the differences between beheimah and chayah.  Although we know that beheimah includes cattle and sheep, whereas chayah includes deer and antelope, the common definition of beheimah as domesticated species, and chayah as wild or non-domesticated species, is not halachically accurate. For example, reindeer, which qualify as chayah, are domesticated, whereas wisents and Cape buffalo, which are not domesticated, are probably varieties of beheimah. A more complicated, but far more accurate, definition of beheimah is a halachically recognized genus or category in which most common species qualify as livestock, and chayah is a halachically recognized genus or category in which most common species are not usually livestock.

The Gemara explains that it is dependent on the type of horn that the animal displays, but the terminology the Gemara uses to explain this is unclear and subject to disputes among the rishonim. Since we are uncertain which species are considered beheimah and which are considered chayah, we are stringent. This means any species of which we are uncertain is treated lechumra as both beheimah and chayah — unless we have a mesorah, an oral tradition, about the halachic status of this species (see Shach, Yoreh Deah 80:1, as explained by the Pri Megadim).

Cheilev

The Torah forbade consumption of certain internal fats, called cheilev — these are attached predominantly to the stomachs and the kidneys. Since the Torah prohibits consuming both cheilev and the gid hano’she, these forbidden parts must be removed from an animal before its meat can be eaten. This process is called “traberen,” a Yiddish word that derives from tarba, the Aramaic word for cheilev. The Hebrew word for the process is “nikur,” excising, and the artisan who possesses the skill to properly remove it is called a menakeir. It is interesting to note that the Rema (Yoreh Deah 64:7 and 65:8) points out in two different places that nikur cannot be learned from a text, only through apprenticeship.

Cheilev versus gid hano’she

There is a major difference between gid hano’she and the prohibition of cheilev. The prohibition of cheilev applies to species of beheimah, but not to chayah (Mishnah Chullin 89b). Thus, we have a difference in halacha between gid hano’she and cheilev, in that gid hano’she is prohibited in a chayah, whereas its cheilev is permitted.

This is germane in practical halacha. Because of the difficulty in removing all the cheilev correctly, many communities have the halachic custom not to traber the hindquarters, but, instead, to sell them to gentiles as non-kosher. However, many contemporary authorities have ruled that even those who have accepted this practice may still traber the hindquarters of a deer, which is definitely a chayah, to remove the gid hano’she, since the cheilev of a chayah is permitted. This is because the gid hano’she that is prohibited min haTorah is relatively easy to remove and does not involve as serious halachic issues as does the cheilev. Notwithstanding this heter, there is still a requirement that one who trabers the gid hano’she of a deer may do so only if he has been trained in performing this nikur.

The Mishnah

Having established the basic rules from the pasuk itself, we can now analyze more of the halachos of this mitzvah. An entire chapter of Mishnayos, the seventh chapter of Chullin, is devoted to understanding it. The opening Mishnah of this chapter begins as follows: (The prohibition of) gid hano’she applies both in Eretz Yisroel and in chutz la’aretz, both during the times of the Beis Hamikdash and when there is no Beis Hamikdash, regarding both chullin and sanctified offerings. It applies both to beheimos and to chayos, to both the right thigh and the left thigh. But it does not apply to birds, because they do not have a kaf.

The Gemara asks why the Mishnah needed to report that the prohibition of gid hano’she applies to kodoshim. Since animals are born as chullin, at the time of birth the animal’s sciatic nerve becomes prohibited as gid hano’she. Why would we think that the prohibition of gid hano’she might disappear when the animal is declared to be holy?

To resolve this difficulty, the Gemara proposes the following solution: There is a dispute among tanna’im referred to as yesh begiddin benosein taam, sinews have flavor, or ein begiddin benosein taam, sinews do not have flavor. “Sinews” refer to the parts of an animal that are not tasty, but are eaten incidentally while consuming the tasty meat. The dispute is as follows: Since sinews are eaten only as part of a piece of meat, are they considered food? If they are not considered food, then other prohibitions, such as the mixing of meat and milk, or the prohibition of non-kosher species, do not apply to them min haTorah, since these prohibitions apply only to edible parts of an animal.

Thus, regarding the giddin of a kodoshim animal, if giddin are not considered food (ein begiddin benosein taam), then the prohibition of kodoshim does not apply.  However, the sciatic nerve of a kodoshim animal is prohibited because of the prohibition of gid hano’she. The Shulchan Aruch concludes that ein begiddin benosein taam (Yoreh Deah 65:9).

Jewish identification

It is very interesting to note that, at times in Jewish history, the mitzvah of gid hano’she became the identifying characteristic of the Jew. Kaifeng, China, is a city of 4.5 million people on the southern bank of the Yellow River that attracts much tourism for its rich history. In the tenth and eleventh centuries, Kaifeng was the capital of China, and, for this reason, the city is known as one of the Seven Ancient Capitals of China. As history notes, when there are a lot of people, there is money to be earned, and when there is money to earn, one will usually find Jews.

At one point, over a thousand years ago, Jewish merchants from Persia and India settled in the area, created for themselves a Jewish community, and built shullen. Their shullen faced west toward Yerushalayim. Unfortunately, with the passing centuries, their descendants became completely intermarried and assimilated into the Chinese population. To this day, about 1,000 Kaifeng residents claim Jewish ancestry.

What does this have to do with the mitzvah of gid hano’she? The answer is that the Chinese identified the Jews with the practice of removing the gid hano’she, referring to Jews as the sinew-plucking people. Until recently, there was even a street in Kaifeng called “The Lane of the Sinew-Plucking Religion,” a reference to the Jews who once lived there.

Jewish American identification

Not only the Chinese identified the Jews because of the mitzvah of gid hano’she. Many years ago, when I was a rav in a small community in the United States, a non-observant Jew was interested in making a strictly kosher wedding for his daughter, because he had frum friends whom he wanted to accommodate. His daughter was willing to have a kosher wedding, as long as it did not look “too kosher.” I asked her what she meant that it should not look “too kosher,” to which she answered: “No ribs and no briskets.” I had been unaware that, to someone who did not keep kosher, forequarters meat, such as rib and brisket, is associated with “kosher-looking,” whereas hindquarters meat, not consumed in many places because of the difficulties in removing the gid hano’she and the cheilev, is viewed as “non-kosher looking.” Thus, the prohibition of gid hano’she defined a Jewish menu. (Fortunately, the executive chef of the hotel doing the kosher catering provided ideas for a perfectly kosher and very delicious meal that would, by the bride’s definition, not look too kosher.)

Conclusion

Although above I translated the word noshe as “displaced,” which is the approach of Rashi and therefore the most common rendering, Rav Hirsch understands that the root of the word noshe, similar to no’she, a creditor, means submission and powerlessness. Yaakov’s gid had been dislodged by his adversary; he was unable to control the muscle that moves the bone. The nerve, muscle and bone all existed, but their use was temporarily hampered. Thus, the gid hano’she denotes temporary relinquishment, but not permanent loss. Ya’akov is a no’she, a creditor, who has quite a large account to settle with Eisav and his angel.

To quote the Sefer Hachinuch: The underlying understanding of this mitzvah is to hint to the Jewish people that, while in the exile, although we will undergo many difficulties from the other nations, and particularly the descendants of Eisav, we should remain secure that we will not be lost as a people. At some point in the future, our offspring will rise and a redeemer will arrive to free us from our oppressor. By always remembering this concept through the observance of this mitzvah, we will remain strong in our faith and our righteousness will remain forever!

Certainly some very powerful food for thought the next time we sit down to a fleishig meal and note that we are eating only “kosher cuts!”

 

Follow the Ladder

Question #1: Ladders

“May I use a ladder on Yom Tov?”

Question #2: Maris ayin

“What is the ‘maris ayin conundrum’?”

Question #3 Chutes

“Is there a traditional source for the modern Hebrew word magleisha, which means a sliding board or a chute, or the word miglashayim, which means skis?”

Introduction

Since Yaakov Avinu witnessed the angels going up and down a ladder, it seems an appropriate week to discuss halachos germane to ladders. To begin, let us analyze a passage of Gemara that discusses ladders.

The ladder carrier

In our day of refrigeration and freezers, it is unusual for someone to shecht meat on Yom Tov. However, since the halacha is that one may prepare food on Yom Tov, this law permits not only kneading dough, chopping up vegetables, turning up a fire and cooking, but permits also shechting on Yom Tov. After all, freezing meat is only the second best way of keeping it fresh from spoilage. The best method is to keep the bird or animal alive, and this was common practice in the time of the Mishnah and Gemara. It was also the reason that, until the modern era, ships at sea kept a herd of livestock on board, to make sure that the crew did not starve on the high seas. (The British were also noted for keeping a supply of limes on board, but that was for a reason beyond the discussion of our current article.)

In this context, we find the following Mishnah (Beitzah 9a) regarding someone who is interested in preparing doves for his Yom Tov seudah: “Beis Shammai says that you may not move a ladder from one dovecote to another, but it is permitted to lean it from one window to another, and Beis Hillel permits (moving the ladder).”

What is wrong with moving a ladder on Yom Tov? After all, one is permitted to carry on Yom Tov, and one is permitted to shecht the birds for a Yom Tov seudah. So, why can’t I carry the ladder to get the birds down?

The Gemara cites several approaches to explain the dispute between Beis Shammai and Beis Hillel. Two of these approaches, which we will call “approach #1” and “approach #2,” understand that the dispute involves the principle called maris ayin, the requirement to avoid raising suspicion that one is doing wrong. Beis Shammai is concerned that a person observing someone carrying a ladder on Yom Tov may think that the latter is taking his ladder to repair his roof, which is, of course, forbidden on Yom Tov.

The Gemara explains that everyone agrees that one may not carry a large ladder which would ordinarily be used for roof repair. Carrying such a ladder would entail maris ayin.  The dispute between Beis Shammai and Beis Hillel concerns whether one may carry a small ladder, more likely used for getting doves than for roof work.  Approach #1 contends that Beis Hillel permits carrying a small ladder in a private place, but not in public, whereas Beis Shammai prohibits carrying the small ladder even in private. This opinion understands that Beis Shammai and Beis Hillel disagree about the following principle: Is maris ayin prohibited only in a public place, where there is a greater likelihood that someone will misinterpret the action, or even in a private place, notwithstanding that it is unlikely that someone will see this action and will think that the carrier is planning to violate halacha (see Ran, Shabbos 146b; note that the Mishnah Berurah 301:165 appears to have understood this dispute in a different way)? Beis Shammai contends that maris ayin is prohibited, even when the act is performed in a private area, completely out of view. The Gemara calls such a private area, bechadrei chadarim, in the innermost room.

Some rishonim draw a distinction between a situation in which an observer might think that someone is violating a Torah law, as opposed to one in which the action being done in private would violate only a rabbinic injunction, in which case one does not need to be concerned (Tosafos, Kesubos 60a s.v. Mema’achan; Tosafos, Moed Katan 8b s.v. Umenasran). However, other rishonim do not draw this distinction (Rashba, Ran, Beitzah ad loc.). The accepted halachic authorities appear to follow the lenient approach, meaning that if the violation is only rabbinic one does not need to be concerned (Shulchan Aruch, Orach Chayim 336:9; Taz, Orach Chayim 243:3, 301:28, 336:9; Magen Avraham 301:56; Mishnah Berurah 301:165; Biur Halacha ad locum s.v. Bechadrei. See also Rema, Yoreh Deah 87:3,4; Pri Chodosh ad locum; cf. Rambam, Hilchos Shemittah veYoveil 2:1; Shach, Yoreh Deah 87:6,8).

Maris ayin conundrum

I want to call attention to the fact that the concept of maris ayin is a fascinating curiosity, because it contradicts another important Torah mitzvah – to judge people favorably. This mitzvah requires us to judge a Torah Jew favorably when we see him act in a questionable way. (For further information on the mitzvah of judging people favorably, see Shaarei Teshuvah of Rabbeinu Yonah, 3:218.) If everyone judges others favorably at all times, there should be no reason for the law of maris ayin. Yet, we see that the Torah is concerned that someone may judge a person unfavorably and suspect him of violating a mitzvah. Indeed, a person’s actions must be above suspicion; at the same time, people who observe him act suspiciously are required to judge him favorably.

Tall ladders

At this point, we can now answer our opening question: “May I use a ladder on Yom Tov?” The answer is that I may not use a large ladder that is used primarily for climbing onto a roof, even if I have a reason to use it on Yom Tov that would, otherwise, be acceptable. It is unclear from the Mishnah and Gemara whether or not I may use a smaller ladder.

Chutes and ladders

At this point, let us address a different one of our opening questions:

“Is there a traditional source for the modern Hebrew word magleisha, which means a sliding board or a chute, or the word miglashayim, which means skis?”

The word magleisha in modern Hebrew, which means a chute or slide, is based on a posuk in Shir Hashirim (4:1), where we find the following accolade: “Your hair is like a flock of goats that descend (Hebrew, golshu) from Mount Gilead.” The book of Shir Hashirim is full of allegories that are to be understood on many levels. Often they express, poetically, the bond between Hashem and the Jewish people and also can be explained on a literal level, as depictive of the relationship between a man and a woman.

Har Gilad, or Mount Gilead, is today in northwestern Jordan on the eastern side of the Jordan River, but was part of Eretz Yisroel at the time when Shlomoh Hamelech wrote Shir Hashirim. Of course, the obvious question in understanding this posuk is – why are we complimenting someone for hair that appears like descending goats? According to Rashi, the accolade is as follows: Your hair has a beautiful sheen to it, similar to the white sheen that one sees from a great distance when observing a flock of white goats descend the mountain.

Seforno interprets the idea of the posuk in a way similar to what Rashi wrote, but there is a difference in nuance between their two interpretations. Seforno writes: “Your hair is fine as the cashmere on the back of the heads of the goats of Gilead.” In his opinion, there is no reference in this posuk at all to descent, gliding, or sliding. Similarly, ibn Ezra understands that the word golshu means “as they appear on Har Gilad.

According to Rashi, the word golshu carries the connotation of “descent,” whereas according to ibn Ezra and Seforno, it does not. Thus, according to Seforno, there is no basis to explain the root גלש as having anything to do with descending, sliding or skiing. Even according to Rashi’s interpretation which provides a source that the root golosh גלש means to descend, there is still quite a stretch to get the word to mean slide, glide, ski, or chute. However, as any linguist can attest, Modern Hebrew has taken many Hebrew, Aramaic or even English and Arabic words and given them meanings quite distant from their origins. However, the root גלש has been used for all of these meanings, and we are therefore left with Modern Hebrew terms such as magleisha, sliding board or chute, miglashayim, skis, and various other similar words. Do they have a traditional source? According to Rashi, perhaps; according to ibn Ezra and Seforno, they do not.

Conclusion

The gematria of the word sulam, Hebrew for ladder, is 136, which is the same gematria as that of the words tzom (fast), kol, and mammon. This certainly brings to mind the piyut, Unesaneh Tokef, that we recite on Rosh Hashanah and Yom Kippur, in which these three words are inserted in small letters in the machzor above the words teshuvah, tefillah and tzedakah, when we declare that they protect against harsh decrees. Teshuvah, tefillah and tzedakah demonstrate different steps a person must take to bring himself closer to Hashem. This is symbolized by the ladder, as we ascend one step at a time to bring ourselves closer to serving Hashem.

 

How Much May I Charge?

Question #1: Overcharged esrog

“My esrog dealer charged me $150 for an esrog. My brother-in-law, who knows the business, told me that he overcharged me, and the esrog is not worth more than $35. Can I get my money back?”

Question #2: Just a little bit

“Am I permitted to charge a little bit above the market price for an item?”

Question #3: Damaged coin

“I noticed that someone tried to scrape off some of the metal on a coin that I have. May I use it?”

Question #4: Expert error

“I purchased a rare coin from a dealer, and he clearly undercharged me. Am I required to tell him about it?”

Answer:

Upon graduation from olam hazeh, the first question asked upon entering the beis din shel maalah, the Heavenly Court, is: “Did you deal honestly with your fellowmen?” (Shabbos 31a). The Aruch Hashulchan (Orach Chayim 156:3) explains that this does not mean, “Did you steal?” or “Were your weights honest?” Someone who violated these laws, whether dealing with Jewish or non-Jewish clientele, qualifies as a rosho gamur. Rather, the Heavenly Court’s inquiries are: “Did you make unjustified claims about the quality of the merchandise that you are selling?” “Did you speak to people softly in your business dealings?” “Did you curse, scream, or act angrily with people?” “Did you realize that all livelihood comes only from Hashem and act within that framework?”

Anytime is ideal to discuss the details of this topic; I chose to do so this week, since the parsha involves an obvious question as to whether Rivkah and Yaakov were permitted to deceive Yitzchok about the brochos.

In parshas Behar, the Torah teaches, Lo sonu ish es amiso (Vayikra 25:17). The word sonu has the same root as the word onaah, the name by which we call this mitzvah. The word onaah is difficult to translate into English, but for the purposes of our article, I will use the word overcharging, although, as we will soon see, onaah also includes situations of underpayment or of misrepresentation. The purpose of this article is to present the basic principles; specific questions should be referred to your own rav or dayan. Just as everyone must have an ongoing relationship with a rav for psak and hadracha, one must also have an ongoing relationship with a dayan who can answer the myriad Choshen Mishpat questions that come up daily.

Three types of onaah

There are three types of overcharging that are included in the prohibition of onaah, all of which involve taking unfair advantage:

(1) Fraud – when the item being sold contains a significant flaw that the seller conceals or otherwise misrepresents.

(2) Overpricing – when one party to the transaction is unaware of the market value of the item.

(3) No recourse – when someone is aware that he is being overcharged, but he has no recourse, because of the circumstances.

I will now explain a bit more about each of these types of onaah.

(1) Fraud

It is prohibited to hide a defect or to misrepresent an item. For example, the Mishnah (Bava Metzia 60a) and the Gemara (ibid. 60b) prohibit selling watered-down products, or painting something to hide a flaw or to make it look newer than it is (Shulchan Aruch, Choshen Mishpat 228:9). One may not add inferior material to a quality product when the purchaser will see only the quality product (Bava Metzia 59b-60a; Shulchan Aruch, Choshen Mishpat 228:10, 11).

Onaah is prohibited not only in sales, but also in other transactions, such as hiring people or contracting work (Shulchan Aruch, Choshen Mishpat 227:35, 36, 16).

Shidduchin

Holding back significant medical, emotional or spiritual issues that could affect a shidduch is also prohibited because of onaah. To quote the words of the Sefer Chassidim (#507): “When arranging matches for your children or other family members, do not hide from the other party medical issues that would have been reason for them to reject the shidduch, lest they afterwards choose to annul the marriage. Similarly, you should tell them about deficiencies in halachic observance significant enough that the other party would have rejected the marriage.”

By the way, there is no halachic requirement to reveal detrimental information to a shadchan, and one is not required to inform the other side before the couple meets. However, it must be told sometime before the shidduch is finalized. This particular topic is more detailed than we can discuss in this article. Indeed, I devoted a different article to this topic, entitled “Can I Keep My Skeletons in the Closet.” There are also other articles on the website that touch on this broad topic, which can be found with the search word shidduch.

Insider trading

Insider trading, meaning buying or selling a commodity or security on the basis of information that is not available to the general public, is now a heavily punished felony in the United States, but was once legal there and is still legal in many countries of the world. Halacha prohibits all forms of insider trading because of onaah, since the insider is taking advantage of the other party.

(2) Overpricing

A second type of onaah is when there is no flaw or other problem with the quality of the item being transacted, but the price paid is greater than the item’s market value. Overcharging of this nature is also prohibited because of onaah.

Over a sixth

When the price, or range of price, of an item can be established, if an item was sold at more than one sixth over the market price, the aggrieved party has a right to return the item for a full refund (Shulchan Aruch, Choshen Mishpat 227:4.) For example, the stores that stock this item sell it for up to $600, and the seller charged the purchaser over $700. In this instance, according to halacha, the purchaser can return the item and get his money back. (There are detailed halachos that govern how much time he has to make this claim.)

One can demand return compensation only when the party did not use the item once he realized that he had been overcharged.

Another case where the item cannot be returned: The aggrieved party realized that he was overcharged, but decided to keep the item anyway. In the interim, the price of the item dropped such that he can now get a much better deal. Since his reason to back out on the deal is not because of the original overcharge, he may not invalidate the original sale (Shulchan Aruch, Choshen Mishpat 227:9).

It is interesting to note that there are authorities who rule that even the aggrieving party can withdraw from the deal when the price was so much off mark. This is because they contend that someone does not agree to a transaction if he knows that the price was so disproportionate to the item’s value (Rema, Choshen Mishpat 227:4.)

One sixth

The halacha is that if the overcharge was by exactly one sixth, the deal holds, but the aggrieved party is entitled to be refunded the overcharge sum (one sixth of what he paid). Thus, if the item was worth $600 and it was sold for $700, the purchaser is entitled to receive $100 back.

Less than a sixth

If the overcharge was less than a sixth, which means that the price was clearly too high but less than a sixth over the market value, the deal is valid, and the aggrieved party is not entitled to any compensation. Thus, if the item was worth $600 and it was sold for $690, the deal remains as is.

Is it permitted?

At this stage, we can address one of our opening questions: “Am I permitted to charge a little bit above the market price for an item?” Granted that the deal will be valid if someone did this, is one permitted to do so lechatchilah?

Indeed, this is an issue that is disputed by the halachic authorities (Tur, Choshen Mishpat 227, quoting Rosh). The Tur explains that min haTorah, overcharging is prohibited if one is aware that this is the case, but Chazal were lenient, because it is difficult for anyone to be this accurate. However, many prominent authorities are of the opinion that it is prohibited to overcharge intentionally, even by a very small amount (Aruch Hashulchan, Choshen Mishpat 227:2).

The Tur concludes that a yarei shamayim, a G-d fearing person, should try to act strictly regarding this law.

The Shulchan Aruch rules that it is uncertain whether it is permitted to overcharge by less than a sixth (Shulchan Aruch, Choshen Mishpat 227:6). Some major authorities conclude that a yarei shamayim should return the difference, even in a case where it amounted to less than a sixth (Sma 227:14).

Furthermore, when the price on a specific item is very exact, because of government regulations or market conditions, even those authorities who are lenient about overcharging a small amount will agree in such a case that it is prohibited to charge any more than the accepted market price (Aruch Hashulchan, Choshen Mishpat 227:3).

Cash fast

Here is a situation in which someone cannot demand return compensation, even though he sold the item at way below its value: A seller needed to raise cash quickly and therefore sold items without checking their proper value. He cannot request his money back by claiming that he was underpaid, because it is clear that, at the time he sold them, he was interested in selling for whatever cash he could get (Shulchan Aruch, Choshen Mishpat 227:9).

All items?

The Mishnah (Bava Metzia 56b) quotes a dispute between tana’im whether the laws of overcharging by more than a sixth apply to items such as sifrei Torah, animals and precious stones. The tanna kamma contends that the laws of onaah apply, including the right to have the item returned, whereas Rabbi Yehudah holds that these laws do not apply to such items. In the case of sifrei Torah, this is because the pricing is difficult to determine, and in the cases of animals and precious stones, because the purchaser may have a special need for this specific animal or stone which makes it worth more to him than the usual market price. For example, this animal has the same strength as an animal the purchaser already owns, making it possible to pair them together in work, or the stone matches well to the specific color and size he is using for a piece of jewelry (Bava Metzia 58b).

Wartime

Although most tana’im disagree, the Gemara (Bava Metzia 58b) adds that Rabbi Yehudah ben Beseira ruled that there is no onaah for selling horses, shields or swords during wartime, because your life might depend on it. I presume that this means that during a war, the value of these items far exceeds their normal market price, and that, therefore, even an inflated price is not considered overcharging. The halacha does not follow the opinion of Rabbi Yehuda ben Beseira. Therefore, should someone be overcharged for the purchase of these materials during wartime, he is not required to pay more than the accepted market price.

Overcharged esrog

At this point, we are in a position to examine our opening question: “My esrog dealer charged me $150 for an esrog. My brother-in-law, who knows the business, told me that he overcharged me, and the esrog is not worth more than $35. Can I get my money back?”

This question is discussed in Shu”t Beis Yitzchak (Orach Chayim 108:4). He explains that the laws of invalidating a transaction because of an overcharge do not apply to an esrog purchased for use on Sukkos, unless the esrog was not kosher. His reason is that an individual has all sorts of reasons why he wants to purchase a specific esrog, and that, therefore, high-end esrogim do not have a definitive price. We could compare this to someone who purchases a painting at auction, and an art expert contends that the purchaser overpaid. The opinion of the expert does not allow the buyer to invalidate his acquisition.

Expert error

At this point, let us return to one of our opening questions: “I purchased a rare coin from a dealer, and he clearly undercharged me. Am I required to tell him about it?”

An expert can also be overcharged or underpaid (Mishnah, Bava Metzia 51a; Shulchan Aruch, Choshen Mishpat 227:14). Therefore, the purchaser is required to point this out to the dealer.

Furthermore, if you know that the price of an item has gone up, but the seller is unaware of this, you are required to let him know (Aruch Hashulchan, Choshen Mishpat 227:1).

Mistaken overcharging

A person who overcharged someone in error is required to bring it to his attention. All the halachos mentioned above of overcharging apply, even if it was unintentional (Pischei Choshen 4:10:ftn #1).

Real estate

The Mishnah (Bava Metzia 56a) states that there is no onaah regarding real estate. This means that the concept of a deal being invalidated when the price is more than a sixth overpriced does not relate to land. Nevertheless, it is prohibited to deceive someone in matters germane to property, such as by withholding information that affects the value of the property or its utility (Sma 227:51, quoting Maharshal; Pischei Teshuvah 227:21, quoting Ramban and Sefer Hachinuch).

Title search

If someone sells a property based on his assumption that proper ownership has been established, which is later legally challenged, the purchaser has a claim to get his money back (Shulchan Aruch, Choshen Mishpat 226:5).

Legal tender

At this point, let us examine another of our opening questions: “I noticed that someone tried to scrape off some of the metal on a coin that I have. May I use it?”

In earlier days, a coin’s value was usually determined by its weight and purity. In today’s world, the value of a coin or other currency is determined predominantly by the market forces germane to that country’s currency, but not by the quality of the individual coin, unless it is damaged to the point that it will no longer be accepted in the marketplace. Therefore, today, it is acceptable to use a damaged coin or bill that the average merchant or the bank will accept (Shulchan Aruch, Choshen Mishpat 226:6). One is even lechatchilah permitted to give someone a damaged coin or bill and hoard the nice-looking ones for himself, since it is not harming the other party in any way (Shulchan Aruch, Choshen Mishpat 227:6 and Sma).

Counterfeit money

However, this is true only when the bill or the coin is damaged, but is still legitimate and legal currency. It is forbidden to use counterfeit money, even if you ended up with it in error. Once you know that the currency you are holding is counterfeit, it is not only forbidden to use it, you are required to destroy it (Shulchan Aruch, Choshen Mishpat 227:18). It would seem to me that it is permitted to turn the counterfeit item over to the authorities for investigation and enforcement.

Calculated profit

According to what we have said until now, a person is obligated to know the market value of a product that he is selling and he will violate onaah if he sells it at a price that is clearly significantly above the market price. This means that one must constantly be aware of the fluctuations in market price of all items he is selling. Is there any way one can avoid having to be constantly aware of the market values of the items he is selling?

Yes, there is. It is permitted, halachically, to do the following: A seller may tell the purchaser, “This is the cost at which I acquired this item, and I add this percentage for my profit margin. Therefore, I arrive at the following price” (Bava Metzia 51b as explained by Rambam, Hilchos Mechirah 13:5; Shulchan Aruch, Choshen Mishpat 227:27).

(3) No recourse

Previously, I mentioned that there is a type of onaah in which a person is aware that he is being overcharged, but that circumstances force him to pay more than he should for the item. There are several examples of this. One is when a business or cartel creates a monopoly and then raises prices because they control the market. Since the halachos germane to this situation are somewhat complicated, I will leave this topic for a different time.

A second situation is when someone has a serious need for a product now – and the seller takes unfair advantage, insisting on a price that is well beyond what the item should fetch. For example, someone needs a medicine and can find it only at a certain place, which decides to increase the price tenfold, simply to gain huge, unfair profit. This is forbidden.

Was the seller wrong?

I once purchased a four volume reprint of an old, very hard-to-read edition of a relatively rare sefer. Subsequently, I discovered that the sefer had been reprinted in a beautiful format, a fact which the bookdealer must surely have known. Had I known that the new edition existed, no doubt that I would have purchased it instead. I will leave my readers with the following question: Was the bookdealer permitted to sell me the old edition without telling me that a new one exists? Does this qualify, halachically, as insider trading or deception, and is it therefore prohibited as onaah?

Conclusion

The Gemara tells us that the great tanna Rabbi Yehoshua, the rebbe of Rabbi Akiva, was asked: “What is the best means to become wealthy?” Rabbi Yehoshua advised that, aside from being very careful in one’s business dealings, the most important factor is to daven to He Who owns all wealth (Niddah 70b). A Jew must realize that Hashem’s Torah and His awareness and supervision of our fate is all-encompassing. Making this realization an integral part of our thinking is the true benchmark of how His kedusha influences our lives.

 

 

Over the Rainbow

Question #1: Showing a Rainbow

Should you call someone’s attention to the fact that there is a rainbow?

Are you supposed to look for a rainbow?

Question #2: Niagara Falls

Does one recite a brocha when seeing a rainbow that is not after a storm, such as what one sees at Niagara Falls?

Question #3: How much?

How much of a rainbow must one see to recite a brocha?

Introduction

An entire chapter of Shulchan Aruch is devoted to two short brochos, one recited when one sees a rainbow, and one called birkas hachamah, which we recite only once every 28 years. Both of these brochos are included under the general category called birchos ha’re’iyah, brochos recited upon seeing specific things, whose halachos are spread across nine chapters of Shulchan Aruch (Orach Chayim, from chapter 221-229).

Since the next recital of birkas hachamah will not be for a number of years, and the brocha on the rainbow is based in this week’s parsha, this article will discuss the latter brocha. The common text that we recite for this brocha is, “Boruch Attah Hashem Elokeinu Melech Ha’olam Zocheir habris ve’ne’eman bivriso vekayom bema’amaro,” “Blessed are You, Hashem our G-d, King of the Universe, Who remembers the covenant, is trustworthy in His covenant and fulfills His word.” It should be noted that the version quoted by the Shulchan Aruch (Orach Chayim 229:1) has a slight difference – it is missing a vov before the word “ne’eman,” thus reading: “Boruch… Zocheir habris, Ne’eman bivriso vekayom bema’amaro,” and is translated as two sentences, “Blessed are You, Hashem our G-d, King of the Universe, Who remembers the covenant. He is trustworthy in His covenant and fulfills His word.”

Unusual brocha

Isn’t this a strange text for a brocha referring to Hashem? In what other brocha do we discuss Hashem’s trustworthiness and memory?

The answer is that the world is full of evil people who could be the cause for its destruction. The reason that the world is not destroyed is because Hashem promised Noach that He would not put an end to it. The additional words, that “He… fulfills His word,” are because, as we will soon see, the Torah does not mention that there was any promise or oath — simply Hashem’s declaration to Noach (Avudraham, page 187).

Before analyzing further the brocha and the Gemara that teaches us this mitzvah, let us read the pesukim in this week’s parsha, upon which this brocha is based.

Rainbow way up high

After Noach and his family exited the teivah, Hashem tells them, “I am establishing My covenant with you and the descendants that will follow you… and I will confirm My covenant with you that I will never again destroy all flesh with the waters of the flood, and there never again will be a flood to destroy the earth. And G-d said: This is the sign of My covenant that I am providing between Me and between you and all living creatures that are among you, for all future generations. I have placed My rainbow in the clouds, and it will provide a sign of a covenant between Me and between the earth. And it should be, when I place a cloud over the earth and the rainbow becomes visible in the cloud. I will then remember My covenant that is between Me and you and all living creatures, and the water will never become a flood to destroy all flesh. When the rainbow is in the cloud, I will see it and remember the eternal covenant between G-d and between all living creatures on the earth” (Bereishis, 9:11-16).

The dreams you dare to dream

Seeing a rainbow should evoke mixed feelings in us. On the one hand, it is a beautiful phenomenon of nature that truly demonstrates the nifla’os haBorei, Hashem’s wondrous Creation. The Gemara shares with us an event that bears this out. Once, it was in the middle of the dry season in Eretz Yisroel, when it never rains. Several of the tanna’im were studying intently some deep kabbalistic ideas. Suddenly, the Heavens became covered with clouds and a rainbow appeared in them, and the ministering angels gathered together, the way people gather to see the celebrations of a bride and groom, in order to hear the kabbalistic words emanating from the scholars (Chagigah 14b).

Similarly, we have the following passage of Gemara (Brochos 59a): “Rabbi Yehoshua ben Levi said, ‘one who sees a rainbow in a cloud should fall on his face, as the verse states, Kemar’eih hakeshes asher yihyeh be’anan beyom hageshem kein mar’eih hanogah saviv shehu mar’eih demus kevod Hashem, As the rainbow appears in the cloud on a rainy day, so appeared the brilliant surrounding light; this is the image of the Honor of Hashem (Yechezkel 1:28).”

The Gemara there concludes not in accordance with the opinion of Rabbi Yehoshua ben Levi, and therefore one should not prostrate himself upon seeing a rainbow, for the following reason: In Eretz Yisroel, they criticized the practice of bowing when seeing a rainbow, because it gives the appearance that one is worshiping the rainbow.

On the other hand, the rainbow also demonstrates Hashem’s covenant that He will never again bring a flood to destroy life on earth. Yet, seeing the rainbow implies that the covenant is necessary to avoid that destruction. This is not very reassuring about the state of mankind’s behavior and Hashem’s justified wrath. For this reason, in the era of the Gemara, it was a source of pride for one to have lived in a generation when a rainbow never appeared (Kesubos 77b)!

Indeed, the Shulchan Aruch concludes the laws of reciting the brocha on the rainbow with the following: “And it is prohibited to gaze at it (the rainbow) more than necessary.” The Gemara (Chagigah 16a) reports that gazing at the rainbow is bad for one’s eyes.

As a matter of fact, the rishonim ask this question: How can one look at the rainbow to recite the brocha, if gazing at it is harmful? They answer that it is only harmful to gaze at a rainbow, but not to notice it or glance at it. Thus, when noticing it, one should recite the brocha, but not look at it again afterwards (Rosh, cited by Avudraham).

Really do come true

Let us now examine our opening question: Should you call someone’s attention to the fact that there is a rainbow? Are you supposed to look for a rainbow?

The Chayei Odom (Klal 63:4) mentions, “I saw in a work, whose name I no longer remember, that one should not tell someone else that he saw a rainbow, since this is disparaging information.” The Mishnah Berurah and the Kaf Hachayim both quote this Chayei Odom. The question is that we usually assume that we are allowed to share bad news, for example, so that people know to attend a funeral or to make a shiva visit. Why not tell people about a rainbow, so that they can recite the brocha?

The answer appears to be that although the news of someone’s passing is something not good, it is not disparaging regarding anyone. However, the appearance of the rainbow is understood to demonstrate that Hashem is telling us that He is keeping His deal not to destroy the world with a flood. This statement has highly negative connotations for the entire world’s level of ethics and morality, and we want to avoid implying anything disparaging.

An alternative, similar explanation that I once heard is that one should not call attention to the rainbow, since it might make them dejected to see how wretched and undeserving the world is.

Skies are blue

A question relative to these verses is raised by the rishonim. The pesukim imply that the rainbow was created after the mabul, as a covenant. Indeed, the Ibn Ezra explains the verse this way, disputing an earlier interpretation of the posuk from Rav Saadiya Gaon. However, scientifically, if the correct factors of moisture in the air and sunlight exist, the resultant refraction of light causes a rainbow, which means that the factors causing the rainbow existed from Creation and not only after the mabul. This question was already asked by the Ramban in his commentary, which I will now quote: “‘This is the sign of My covenant that I am providing.’ One is given the impression that the rainbow in the clouds was not existent as part of Creation, but that now Hashem created a rainbow in the Heavens… . However, we are compelled to believe the words of the Greeks, that the light of the sun through moist air creates a rainbow, since taking a vessel of water before the sun will cause something similar in appearance to a rainbow.”

The Ramban continues: “When we examine further the phraseology of the verse, we will also understand (as did the Greeks), for it says ‘I have placed my rainbow in the cloud,’ rather than ‘I am now placing my rainbow in the cloud.’” The Ramban proceeds to explain that the rainbow, indeed, existed since Creation, but now, after the mabul, it became the testimony to the covenant. In other words, an already existing item now assumed a role as a testament and reminder to an agreement or covenant. The Ramban demonstrates that there are many other examples of this in Chumash.

Text of brocha

Germane to the text of the brocha we recite, the Gemara records the following: “One should certainly recite a brocha (upon seeing a rainbow). What brocha does he recite? ‘Blessed is He who remembers the covenant.’ A beraisa teaches a different text: Rabbi Yishmael the son of Rav Yochanan ben Beroka says, ‘He is trustworthy in His covenant and fulfills His word.’ Rav Papa ruled, ‘Therefore we should recite both texts: Blessed is He Who remembers the covenant, is trustworthy in His covenant and fulfills His word” (Brochos 59a). This is the source for the text of the brocha as we recite it, Boruch Attah Hashem Elokeinu Melech Ha’olam zocheir habris vene’eman bevriso vekayom bema’amaro.

Nevertheless, we find that there were other ways of understanding the conclusion of the Gemara and different versions of its concluding text. There was an old custom to recite the following text to this brocha: Ne’eman bevriso vekayom bema’amaro, Boruch Attah Hashem Zocheir habris,” “He is trustworthy in His covenant and fulfills His word, Blessed are You, Hashem, Who remembers the covenant.” This version does not begin with our standard introduction for all brochos, nor does it mention at all that Hashem is King of the world. (The Shelah Hakodesh mentions a slight variation of this text which includes also Elokeinu Melech Ha’olam in its closing.) With the exception of a brocha that is a later one in a sequel, called a brocha hasemucha lachavertah, all brochos begin with our well-known formula Boruch Attah Hashem Elokeinu Melech Ha’olam. (Examples of brocha hasemucha lachaverta are the brochos of shemoneh esrei, bensching, birchos kerias shma and sheva brochos. In these instances, the brochos that do not begin with the word boruch follow other brochos.) This is not the case with the brocha on a rainbow, which is not a sequel to another brocha, and therefore should begin with the words Boruch Attah Hashem Elokeinu Melech Ha’olam.

In addition, brochos that are short and not multi-themed do not have a closing of Boruch Attah Hashem. These endings are restricted to brochos that are lengthier.

Precisely for these reasons, the authorities universally reject the text Ne’eman bevriso vekayom bema’amaro, Boruch Attah Hashem Zocheir habris, since it violates the structural rules for brochos established by Chazal (Bach; Pri Megadim). The poskim contend that this errant version was based on a misunderstanding of the text of the Gemara (Drisha, Orach Chayim 229, quoting his rebbe, the Maharshal).

Different text

Tosafos quotes a slightly different version of the brocha, which might have been based on a variant text of the Gemara passage: Boruch Attah Hashem Elokeinu Melech Ha’olam ne’eman bivriso vekayom beshevuaso vezocheir habris,” “Blessed are You, Hashem our G-d, King of the Universe, Who is trustworthy in His covenant, fulfills His oath and remembers the covenant” (Tosafos, Brochos 59a s.v. Hilchach I).

One of the interesting points about this text is that it mentions that Hashem swore an oath regarding the rainbow. Although this idea is not mentioned in the Torah, it is mentioned by the prophet Yeshayohu (54:9), Ki mei Noach zos li asher nishbati mei’avor mei Noach od al ha’aretz, kein nishbati mi’ketzof alayich umi’ge’or boch, “These shall be for Me like the waters of Noach, which I swore never to bring again onto the earth. So, too, have I sworn not to become angry with you or to rebuke you.” These words are part of the reading for this week’s haftarah, as well as for that of parshas Ki Seitzei.

Somewhere over the rainbow

At this point, let us discuss our third opening question: “How much of a rainbow must one see to recite a brocha?”

Strangely enough, this question is not discussed by any of the standard, early authorities. The Mishnah Berurah, in his Biur Halacha commentary, does raise this question, stating that there are no halachic sources that clarify whether one recites the brocha only when he sees the entire arch of a rainbow, which is a 180 degree arc, or even if one sees only a small section.

Dreams really do come true

Among the things one sees that require a birchas ha’re’iyah, some require a brocha only when one has not seen them in the last thirty days, such as the brochos on magnificent mountains and seas, or the brochos upon seeing destroyed cities of Israel. There are also brochos that are recited more frequently, should the occasion present itself, such as the brocha recited when seeing lightning. The halacha is that, once the storm clears, should one see lightning accompanying a new thunderstorm, one recites the brocha again. What is the halacha regarding a rainbow? In the event that a new rainbow is the result of a different rainstorm, should one recite a new brocha? The halachic conclusion of the authorities is that one does (Shaarei Teshuvah 229:1 and other acharonim.).

A land that I heard of once

At this point, we can address the second of our opening questions: Does one recite the brocha only if one sees a rainbow after a storm? What is the halacha if one saw a rainbow elsewhere, such as at Niagara Falls or at Paterson Falls, right near New York City; does one recite a brocha?

The wording of the posuk, the Gemara and the poskim implies that the brocha is recited only when the rainbow appears in the clouds, related to a storm. Thus, there should be no brocha recited on a rainbow from any other source.

Way up high

A natural phenomenon that occasionally occurs is a double rainbow, in which a reversed-direction rainbow appears in the sky, high above a lower rainbow. There is an opinion among the late poskim that one recites the brocha only when seeing this particular type of rainbow, which means that one would rarely recite the brocha of Zocheir habris ve’ne’eman bivriso vekayom bema’amaro. One can rally an earlier comment as a source for this position, since one finds that the Seforno, in his commentary to the posuk in parshas Noach, understands that this was the type of rainbow that Hashem described to Noach as His covenant.

However, the well-known later authorities who quote this opinion conclude that one may ignore it, since none of the established early halachic authorities mentions this requirement for reciting the brocha (Ben Ish Chai, Parshas Eikev #17; Kaf Hachayim, 229:4). The Ben Ish Chai mentions that if an individual, when seeing a regular rainbow, chooses to omit the mention of Hashem’s name when reciting the brocha out of concern for this opinion, one should not rebuke him for this, notwithstanding that this approach is not the accepted halacha.

Conclusion

One of the understood messages of the rainbow is that it points upward, whereas the archer’s bow, which is a weapon, is always bent in the direction of its target. Thus, one of the symbolisms of the rainbow is that Hashem is pointing the potential weapon in the wrong direction, rendering it useless.

Rav Hirsch, in his beautiful explanation of Tehillim 75, notes that Asaf prophesies the end of warfare, when man’s weapons will become useless. Thus, our major hope is that man lose interest in his ability and his incentive for all warfare, and allow for the teaching of Hashem to permeate the earth. This fulfills the famous words of the prophet Yeshayohu (2:4) and echoed by Michah (4:3), Vechitesu charvosam le’itim vachanisoseihem lemazmeiros. Lo yisa goy el goy cherev velo yilmedu od milchamah, “They shall beat their swords into plowshares and their spears into pruning forks. No nation will raise a sword against another, and they will no longer learn warfare.”

 

Who Drinks the Kiddush Wine in Shul?

In honor of Parshas Bereishis and the first Shabbos

Drinking in shul

Why is the Kiddush wine in shul given to a child?  If an adult is not permitted to drink before he has personally fulfilled Kiddush, can we cause a child to drink?

Background

The underlying question here is the following: The Torah commands us not only to observe the mitzvos of the Torah, but also not to cause someone else to violate the Torah. This law prohibits even causing a child to violate the Torah, notwithstanding that a child himself is not required to observe the mitzvos. Furthermore, it applies even when the child is, unfortunately, not being raised in an observant way. It is therefore forbidden for someone who has a babysitting job to feed a Jewish child non-kosher food, or to serve non-kosher food to a Jewish adult in a nursing facility or to a Jewish child in a school cafeteria.

The source

There are three different places from which we derive that it is prohibited to cause a child to violate commandments of the Torah (Yevamos 114a). These hermeneutic allusions are in the context of the following three mitzvos:

(1) The prohibition against eating sheratzim, tiny creatures.

(2) The prohibition against eating blood.

(3) The prohibition for a kohen to come in contact with a corpse.

We will soon see the significance of the three sources.

What age child?

This law applies even to a child too young to understand what a mitzvah is (Magen Avraham 343:2). Therefore, one may not use a baby blanket or baby clothes made of shatnez (Shu”t HaRashba HaChadoshos #368; Shu”t Beis Yehudah, Yoreh Deah #45; Eishel Avraham [Butchatch], Orach Chayim 343:1). Similarly, one is prohibited to feed a newborn infant non-kosher food, unless it is a life-threatening emergency (Magen Avraham 343:2).

Based on the above sources, we can now appreciate our opening question. “Why is the Kiddush wine in shul given to a child?  If an adult is not permitted to drink before he has personally fulfilled Kiddush, can we cause a child to drink?” To explain this topic better, let us examine its halachic background.

Friday night Kiddush in shul

At the time of the Gemara, Kiddush was recited in shul Friday night because of visitors who would eat their meals in guest rooms that were located adjacent to the shul (see Pesachim 101a and Tosafos s.v. DeAchlu). The fact that the guests ate their meals nearby is significant because of the principle, ein Kiddush ela bimkom seudah — one fulfills the obligation for Kiddush only when it is recited or heard in the same place where one intends to eat one’s Shabbos repast. Someone who hears Kiddush but does not eat a “meal” where he heard it does not fulfill the mitzvah of hearing Kiddush. Discussing the details of ein Kiddush ela bimkom seudah requires a separate, lengthy article; but, for our purposes, we will say that most authorities conclude that eating a significant amount of food on which we recite a mezonos satisfies the requirement of a seudah.

A bit later in history

In the era of the Rishonim, several hundred years after the Gemara, no one ate Friday night meals in the shul building, yet the custom to recite Kiddush at the end of davening was still commonly observed. Although we find many authorities who ruled that one should not recite Kiddush under these circumstances, most communities continued the practice of reciting Kiddush in shul (Tur and Beis Yosef, Orach Chayim 269).

Why do we continue to recite Kiddush?

If no one fulfills the mitzvah with the Kiddush recited in shul, why did the practice continue? This question is discussed by several of the Geonim and the Rishonim, and I will present here some of their approaches.

Rav Naturanai Gaon states that one should recite the Kiddush in shul because of the benefit that hearing Kiddush has for one’s vision. This idea is based on the Gemara’s statement that taking overly-long strides damages one’s vision, and that the Friday evening Kiddush restores the vision that has been lost (see Brachos 43b). Since not every household had wine on which to recite Kiddush, the custom developed to recite Kiddush in shul for this therapeutic purpose. It appears that, according to Rav Naturanai Gaon‘s reason, no one needs to drink the Kiddush wine in shul, since its purpose is not to fulfill the mitzvah.

The Tur objects

However, the Tur, who quotes Rav Naturanai Gaon, sharply disputes the reason. This is because the Gemara explains that the basis for Kiddush in shul is for guests and not the therapeutic reason of Rav Naturanai Gaon.

Another early authority, Rabbeinu Yonah, presents a different explanation for reciting Kiddush in shul, even though the reason mentioned by the Gemara no longer applies. Rabbeinu Yonah contends that the Kiddush was for the benefit of people who did not know how to recite Kiddush and who would simply not fulfill the mitzvah at all. When these people heard Kiddush in shul, they fulfilled the mitzvah min haTorah, notwithstanding the fact that they did not observe the mitzvah as Chazal instructed, since it was not Kiddush bimkom seudah (Rabbeinu Yonah, quoted by Rosh). Thus, Rabbeinu Yonah assumes that the requirement of Kiddush bimkom seudah is a rabbinic ordinance, and that we would recite the Kiddush in shul for the sake of those who would thereby fulfill the Torah mitzvah.

Not all authorities agree with this approach. The Rosh contends that the requirement of Kiddush bimkom seudah is min haTorah. Thus, simply hearing Kiddush without eating then and there does not fulfill any mitzvah and would, therefore, not provide a satisfactory reason to recite Kiddush in shul.

Other authorities explain that reciting Kiddush in shul has a status of a takkanah, a rabbinically-ordained practice that we continue to observe, even though the reason it was established no longer applies (Rashba and Ran, quoted by Beis Yosef). (We should note that although the Tur and the Shulchan Aruch discuss the practice and logistics of reciting Kiddush in shul, they both state that it is preferred not to recite Kiddush in shul. For this reason, many shuls do not recite Kiddush Friday night. However, where the custom is to recite Kiddush in shul, one should continue the practice.)

Kiddush catch-22

Regardless which rationale we use to explain why we recite Kiddush in shul, the Tur raises the following question: The halachah requires that someone drink from the Kiddush wine (Pesachim 105b; Eiruvin 40b), and also prohibits drinking before fulfilling the mitzvah of Kiddush. Since no one is eating in the shul building, no one fulfills the mitzvah with that Kiddush, because of ein Kiddush ela bimkom seudah. Thus, whoever drinks from the Kiddush wine in shul is drinking before he has fulfilled the mitzvah of Kiddush, which is prohibited; yet, someone must drink from the Kiddush wine.

To resolve this predicament, the Tur recommends that the Kiddush wine in shul be given to a child to drink, which, he notes, fulfills the requirement that someone drink from the Kiddush wine (Tur, Orach Chayim 269).

Kiddush conundrum

However, it is not clear how this innovation of the Tur resolves the predicament in a satisfactory way. How can we give a child the Kiddush wine? As we learned above, we are not permitted to cause a child to violate halachah – and he is drinking without fulfilling the mitzvah of Kiddush!

This difficulty is raised by the Beis Yosef, who suggests three solutions to the problem:

  • All three sources of the halacha not to cause a child to violate the Torah — not to eat tiny creatures, not to eat blood, and that a kohein not become tamei from a meis — are lo saaseh prohibitions of the Torah. There are halachic authorities who rule therefore that the proscription to cause a child to violate the Torah applies only to mitzvos of at least the level of a lo saaseh, but not to any prohibition that is considered halachically a lesser offense, such as an issur aseh or a mitzvas aseh, and that it certainly does not apply to a mitzvah miderabbanan (Hagahos Maimoniyos, Shabbos 29:40). Since Kiddush is a mitzvas aseh and not a lo saaseh, it is permitted to cause a child to violate its laws. As a result. some authorities permit causing a child to eat or drink before he has fulfilled the mitzvah of Kiddush.

Although this approach can be used to justify the Tur’s proposal, the Beis Yosef notes that many authorities reject this limitation and contend that one may not cause a child to violate any prohibited action. To justify the practice of giving the wine to a child according to their opinion, we need to find an alternative reason to explain why the shul Kiddush is given to a child. Therefore, the Beis Yosef presents two other approaches to explain the practice.

Not yotzei, but may drink

  • Although, in general, one may not drink before fulfilling the mitzvah of Kiddush, there is an opinion among Rishonim that one who recites Kiddush to benefit others may drink the wine of Kiddush, even when he is not now fulfilling the mitzvah (Rabbeinu Shemuel in the name of the Sar of Coucy [one of the Baalei Tosafos], quoted by Mordechai, Pesachim, Tosefes MeiArvei Pesachim, page 35a). The Beis Yosef explains that, although we do not usually follow this position, we may have the children rely on it, as a means of resolving what to do with the Kiddush

A third approach

  • The Beis Yosef presents a third approach, perhaps the most unusual, to explain why we permit a child to drink the wine of Kiddush. Because we must recite the Kiddush and we do not want the brocha of Kiddush to be recited in vain, we permit a child to drink the wine, even though this is an act that we would otherwise prohibit.

Halachic differences

There are obvious differences in practical halachah between these approaches. The first opinion holds that one may cause a child to do something that an adult may not do, provided that the prohibition is less severe than a lo saaseh (see also Rashba, Shabbos 121a; Ran, Yoma, 1a). (Even according to this approach, because of the laws of chinuch, the child’s father, and possibly the mother, may not have him drink, if the child is old enough to be educated. Thus, this heter may not apply if the father gives his own son the wine of Kiddush in shul.) Based on this opinion, some authorities permit directing a child to carry something on Shabbos in an area where carrying is prohibited only miderabbanan, if the child needs the item (see also, Shu”t Rabbi Akiva Eiger 1:15; Biur Halachah 343). However, the Shulchan Aruch (Orach Chayim 343:1) and the Magen Avraham (343:3) prohibit this.

According to the third approach, only one child should drink the Kiddush wine in order to minimize the amount of violation performed, whereas the other two answers permit serving the Kiddush wine to any child who desires. (I note that I have never seen any place that allows only one child to drink the Kiddush. Customarily, many of the children in shul line up to sip the Kiddush wine. This practice implies that this third approach was not accepted as the reason for the custom.)

Matzoh on Erev Pesach

Here is another case where the above-mentioned approaches may disagree: May I feed a child matzoh on Erev Pesach? The Terumas HaDeshen contends that, according to the answer that the prohibition is only to feed a child something that is prohibited with the stringency of a lo saaseh, one may feed a child matzoh on Erev Pesach, which is not as severe a prohibition (Terumas HaDeshen #125). However, he concludes that if the child is old enough to appreciate the Seder, one may not feed him matzoh on Erev Pesach for a different reason — because this runs counter to the experience of matzoh being special on Seder night. (Further discussion on this topic can be found in Rama, Orach Chayim 471:2 and the commentaries thereon.)

Yet a fourth approach

Some later authorities did not feel that the approaches suggested by the Beis Yosef explain the Tur’s ruling in a satisfactory way. They therefore presented other reasons to explain why it is permitted to give a child the Kiddush wine before he has fulfilled the mitzvah. One approach is that it is forbidden to cause a child to violate a Torah law only when the prohibition applies at all times. However, it is permitted to cause a child to perform an activity that is usually permitted, but that is prohibited at this particular time. Following this reason, one may feed a child on Yom Kippur, since eating and drinking are activities that are usually permitted, even though this is a very severe prohibition for an adult (Sefer HaYashar #52). (There are authorities who rule that, according to the previous answers, one is permitted to feed a child on Yom Kippur only when it is a life-threatening emergency, but a child old enough to feed himself should not be fed by an adult, but instead be told where food can be located [Minchas Chinuch, Mitzvah 313; see also Mikra’ei Kodesh of Rav Pesach Frank, Yamim Nora’im, page 149].) Therefore, there is no problem giving a child wine before he has fulfilled the mitzvah of Kiddush, since drinking wine, in general, is a permitted activity (Magen Avraham 269:1).

Another difference in halacha

This last answer also results in a different halachic practice than that of the previous approaches. According to this last answer, one may feed a child on Yom Kippur, even when the child could feed himself. It is also permitted to feed any child before he has heard Kiddush, as long as the child is below the age of bar or bas mitzvah.

A minor kohen

At this point, I would like to discuss a related question. Rivkah Katz* asks me: “My husband and sons are kohanim. Am I required to be careful where I take my infant son?”

In the first pasuk of parshas Emor, the Torah (Vayikra 21:1) states, Emor el hakohanim benei Aharon, ve’amarta aleihem lanefesh lo yitama be’amav — Say to the kohanim, the sons of Aharon, and you shall say to them, that they shall not contaminate themselves to a dead person among their people. Since the Torah repeats the word say, we derive that there are two levels of responsibility here, and since usually it says the sons of Aharon, the kohanim, and here it reverses the order, the Torah is commanding that an adult must not cause a child kohen to become tamei (Yevamos 114a, as explained by Bach, Yoreh Deah 373). From the wording of the Rambam (Hilchos Aveil 3:12), we see that every adult Jew, even a non-kohen, is commanded not to make a child kohen tamei. This requires everyone to know the halachos of what makes a kohen tamei. One cannot have the attitude that, since I am not a kohen, these laws are not relevant to me.

We can therefore answer Rivkah’s question: She is, indeed, required to find out all the halachos germane to kohanim becoming tamei, so that she knows where she may bring her son, and where she may not.

An adult kohen

Another related question I was once asked:

“My father-in-law, who is not observant, is a kohen, whereas I am a Yisroel. Are we required to be as stringent about where we go on family outings as we would if I myself were a kohen?”

Answer:

The Rambam rules that it is forbidden for a non-kohen to make an adult kohen tamei (Rambam, Hilchos Aveil 3:5). To quote the Rambam: “If the kohen is unaware that what he did is forbidden, and the adult who made him tamei knows that it is forbidden, then the adult violates the lo saaseh. If the adult kohen knows that it is forbidden, then the other person violates only lifnei iveir lo sitein michshol, do not place a stumbling block before a blind person (Vayikra 19:14).” Chazal interpret this pasuk to mean that one may not give someone bad advice, nor cause him to violate a prohibition (Pesachim 22b).

Thus, we see that, indeed, one must be concerned about where one takes grandpa, even if he himself is not concerned. For a reason that is beyond the scope of this article, this is true even if grandpa is already tamei meis.

Conclusion

Chazal say in Pirkei Avos: “Kol she’ruach habrios nocha heimenu ruach hamakom nocha heimenu,” One who is pleasing to his fellowman is pleasing to his Creator. Being concerned that we not harm others halachically is certainly part of both our social responsibility and our halachic responsibility. When we do our mitzvos properly, others will see us and say, “He is a frum Jew — he lives his life on a higher plane of caring for others.”

*Name has been changed to protect privacy.