The Crisis of Unwashed Meat

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

Photo by Ove Tøpfer from FreeImages

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

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

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

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

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

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

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

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

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

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

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

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

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

EXORCISING THE BLOOD

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

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

BROILING MEAT

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

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

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

SEVENTY-TWO HOURS OR BUST

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

Is there any way to extend the 72 hours?

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

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

WASHING OR SOAKING?

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

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

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

“Why would anyone do that?” inquired Devorah.

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

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

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

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

MOTZA’EI SHABBOS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WHERE’S THE BEEF?

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

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

FROZEN MEAT

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

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

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

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




Assembling Portable Cribs and Adjusting Shtenders on Shabbos

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

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

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

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

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

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

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

CONSTRUCTION ON SHABBOS

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

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

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

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

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

CONSTRUCTION OF MOVABLE ITEMS

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

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

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

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

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

WHEN DOES BONEH APPLY TO KEILIM?

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

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

To review:

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

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

FIXING A BROKEN APPLIANCE

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

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

TWO EXCEPTIONS

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

Example:

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

ANOTHER EXCEPTION

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

Example:

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

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

TABLE LEAVES

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

THE SCREW – AN INTERESTING INVENTION

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

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

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

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

BINOCULARS

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

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

SHTENDER

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

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

SALTSHAKER

Question:

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

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

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

EYEGLASSES

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

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

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

CONSTRUCTIVE WORK

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

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




A Hard Nachal – But What Is a Nachal?

Question #1: Valley Stream, Israel

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

Question #2: Celebrating birthdays!

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

Question #3: Why now?

Why are we discussing these questions this week?

Introduction

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

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

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

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

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

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

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

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

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

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

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

The locals take over

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

Age of calf

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

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

What is a nachal eisan?

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

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

Nachal that is not eisan?

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

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

No local nachal

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

Washing and declaring

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

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

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

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

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

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

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

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

Never be used

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

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

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

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

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

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

Past use?

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

Conclusion

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

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

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




Eglah Arufah

Photo by Alexander Wallnöfer from FreeImages

Question #1: Which Cities?

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

Question #2: Where?

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

Question #3: Why Now?

Why are we discussing this mitzvah this week?

Background

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

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

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

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

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

Details, details

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

Three groups of elders

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

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

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

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

The arrival of the members of the Sanhedrin

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

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

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

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

Three, five or more?

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

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

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

Where is the Sanhedrin?

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

Next mitzvah: Measuring

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

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

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

Must they measure it themselves?

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

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

Is beis din a liability?

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

The measure of a man

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

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

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

Conclusion

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




What Could be Wrong with the Steak?

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

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

Question #1:

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

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

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

The five rules are:

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

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

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

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

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

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

But maybe it’s treif!

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

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

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

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

How do I check?

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

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

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

No brisket for me!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“What would you tell our neighbor?”

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

CONCLUSION

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




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

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

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

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

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

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

WHAT TYPE OF WORK IS INCLUDED IN THIS MITZVAH?

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

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

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

EXAMPLE:

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

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

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

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

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

RENTALS

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

EXAMPLE:

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

SMALL WAGES AND SMALL EMPLOYEES

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

EXAMPLE:

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

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

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

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

EXAMPLE:   

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

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

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

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

WHAT IS THE HALACHA IF AN AGENT HIRED THE WORKERS?

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

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

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

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

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

EXAMPLE:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MAY THE OWNER OFFER
COMPENSATION FOR DELAYED PAYMENT?

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

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

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

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

SUGGESTION:

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

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

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




A Special Bar Mitzvah Brocha

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

Question
#1: When?

When
does a father recite the brochashe’petorani”?

Question
#2: What?

What
does this brocha mean?

Question
#3: Why?

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

Question
#4: Whether?

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

Introduction

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

What
does it mean?

Is
it a brocha or a prayer?

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

Background:
With Sheim and Malchus

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

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

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

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

Rosh

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

Bereishis
Rabbah

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

Commentaries
on Shulchan Aruch

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

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

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

With
sheim umalchus

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

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

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

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

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

Early
disputants

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

What
does the brocha mean?

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

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

Challenges
to the Levush

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

When
should the brocha be recited?

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

Under
which category of brochos does this fit?

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

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

Why
no malchus?

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

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

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

Why
an impersonal brocha?

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

Daughters?

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

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

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

Adoptive
father

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

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

Conclusion

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




Take a Bow

Question #1: Davening in Public

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

Question #2: Bowing or Genuflecting?

Have you ever genuflected?

Question #3: Bow and Arrow!

Does bowing have anything to do with bows and arrows?

Introduction:

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

Thirteen components of tefillah

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

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

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

These five times are:

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

At the beginning and end of the brocha of modim

At the very end of the shemoneh esrei

Most people?

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

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

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

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

Term limits?

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

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

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

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

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

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

When the bow breaks

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

Don’t bow to idols!

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

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

Take a bow

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

How can you bow?

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

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

Hishtachavayah

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

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

Kidah

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

Korei’a al birkav

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

Shocheh

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

Kor’im

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

How do we bow?

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

Modim

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

Bow like a bow

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

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

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

Bowing or genuflecting?

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

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

Genuflect, kneel, korei’a

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

Conclusion

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

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




Bishul Akum for the Ill

Photo by rea einskisson from FreeImages

Question
#1: Cooked on Shabbos

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

Question
#2: Bishul akum equipment

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

Background:

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

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

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

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

Bishul
akum
for the ill

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

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

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

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

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

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

Does
bishul akum affect pots?

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

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

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

Debate
in Barcelona

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

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

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

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

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

The
mystery is discovered

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

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

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

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

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

Opinion
of the Re’ah

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

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

2. Bishul
akum
does not affect equipment.

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

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

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

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

TheRashba’s
response

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

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

How do we
rule?

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

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

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

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

Three
times lucky

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

What
about for the ill?

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

Conclusion

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

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




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

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

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

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

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

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

THE BASICS

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

1. AVODAH ZARAH

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

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

2. GILUY ARAYOS, which prohibits many illicit
relationships.

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

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

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

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

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

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

ANIMAL BLOOD

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

5. BLASPHEMY.

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

6. STEALING.

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

7. DINIM, literally, laws.

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

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

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

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

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

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

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

AN INTERESTING SHAYLAH – BRIBING A DISHONEST JUDGE

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

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

OTHER PROHIBITIONS

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

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

MAY A NON-JEW OBSERVE MITZVOS?

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

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

POSITIVE MITZVOS

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

STUDYING TORAH

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

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

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

OLAM HABA FOR A NON-JEW

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

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

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

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

CONCLUSION

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