Question #1:

Avrumie, who studies in a local yeshiva, asks me: “I will be eating my Yom Tov meals as a guest in different homes. Do I need to make my own eruv tavshillin?”

Question #2:

Michal and Muttie are spending Rosh Hashanah near his Yeshiva and are invited out for all the meals. They have found an available apartment for Yom Tov, but do not intend to use the kitchen there at all. Someone told Muttie that, although he should make an eruv tavshillin, he should not recite a bracha when doing so. Is this the correct procedure?

Answer:

In order to reply accurately to the above inquiries we need to investigate several aspects of this mitzvah that the Sages implemented – particularly, the whys, hows, and whats of eruv tavshillin.

WHY DO WE MAKE AN ERUV TAVSHILLIN?

Although one may cook on Yom Tov, one may only prepare food for consumption on that Yom Tov. There is, however, one exceptional situation — one may cook on a Friday Yom Tov for Shabbos, but only if one makes an eruv tavshillin the day before Yom Tov.

WHAT IS THE RECIPE FOR PRODUCING AN ERUV TAVSHILLIN?

It is fairly easy to make an eruv tavshillin:

1. INGREDIENTS

On Erev Yom Tov, set aside two prepared foods, one cooked and one baked, that one is not planning to eat on Yom Tov. Many people use a hard-boiled egg for the cooked item, but it is actually preferable to use something more significant (Mishnah Berurah 527:8).

(2. Someone who includes people outside his family in his eruv, such as the rav of a community, adds an additional step at this point: He has someone who does not usually eat with him, whom we will call the zo’che, lift the food used for the eruv tavshillin four inches or more. By lifting the food, the zo’che acquires ownership in the eruv for those who will forget to make an eruv tavshillin. The zo’che then returns the food to the rav [Shulchan Aruch, Orach Chayim 527:10- 12 and commentaries]. I will soon explain what the zo’che’s involvement accomplishes.)

3. PROCEDURE

One then holds the eruv tavshillin, recites a bracha, Baruch Atta Hashem Elokeinu Melech haolam asher ki’deshanu bemitzvosav vetzivanu al mitzvas eruv, and declares:

This eruv permits us to bake, cook, wrap food to keep it hot, to kindle lights, and make all other food preparations on Yom Tov for Shabbos (Shulchan Aruch Orach Chayim 527:12).

(4. Those who include other people in their eruv, add the following clause to this declaration:

For ourselves and for all others who dwell in this city.)

5. INSTRUCTIONS

The foods that have now become the eruv tavshillin should not be consumed until one has completed all the Shabbos preparations.

6. YIELD

The eruv tavshillin allows the members of this household to prepare food for Shabbos. The rav’s eruv tavshillin will allow others who forgot to prepare food, subject to the details we will soon learn.

WHAT DO I DO WITH THE ERUV?

After one has completed preparing everything for Shabbos, there is no requirement to do anything with the eruv, although it is preferable to use the challah as the second loaf for the first two meals of Shabbos and to eat the entire eruv tavshillin as part of the third meal of Shabbos (seudah shelishis) in order to use the mitzvah item (that is, the eruv tavshillin) for other mitzvos, in this case the three Shabbos meals (see Mishnah Berurah 527:48). (For the same reason, many set aside the lulav and hoshanas after Sukkos to use as fuel for baking matzos or burning the chometz.)

If someone mistakenly ate the eruv tavshillin before Shabbos, one may continue the Shabbos preparations as long as at least an olive-sized piece of the cooked item remains, even if the entire baked item was consumed. However, if less than an olive-sized piece of the cooked item remains, one may no longer continue cooking especially for Shabbos, and should ask a shaylah how to proceed (Shulchan Aruch 527:15).

FORGOT TO MAKE AN ERUV

Someone who fails to make an eruv tavshillin may not cook or bake on Yom Tov for Shabbos, and needs to ask a shaylah how to prepare his Shabbos meals (see Shulchan Aruch 527:20- 22). The Rishonim dispute whether he may kindle lights on Yom Tov for Shabbos when he has no eruv tavshillin (Shulchan Aruch 527:19). This dispute will soon become significant to our discussion.

WHY DOES THE RAV INCLUDE OTHER PEOPLE IN HIS ERUV?

As mentioned above, someone who did not make an eruv tavshillin may not cook on Yom Tov for Shabbos. The Gemara narrates the following story:

Shmuel saw that someone was very sad on Yom Tov and asked him why. The man responded, “Because I neglected to make an eruv tavshillin, and therefore I will be unable to cook for Shabbos.” Shmuel explained that the man could rely on Shmuel’s eruv tavshillin.

The next year Yom Tov once more fell on Friday. Shmuel again noticed that the man was sad, and again the man mentioned that he had forgotten to make an eruv tavshillin. However, this time Shmuel advised him that since he had repeated the negligence, he may not rely upon Shmuel’s eruv (Beitzah 16b).

We see that the rav should include everyone in his city in his eruv tavshillin, lest someone forget to make an eruv, although everyone is required to create his/her own (Shulchan Aruch 527:7).

WHY DOES THE RAV HAND HIS ERUV TO SOMEONE ELSE?

A person must own or be a partner in the eruv tavshillin with which he fulfills this mitzvah. An eruv tavshillin automatically includes all regular members of this household, but how does it include other people? Having someone pick up the eruv tavshillin on their behalf makes them partial owners in this eruv tavshillin.

MUST I MAKE AN ERUV?

At this point, we can begin to analyze the two questions I mentioned at the beginning of the article. Let us begin by rephrasing Avrumie’s question: “I will be eating my Yom Tov meals as a guest. Do I make an eruv tavshillin?”

Avrumie, Michal, and Muttie will not be cooking on Yom Tov; does that exempt them from eruv tavshillin, or must they make one anyway? Is eruv tavshillin merely a license to cook for Shabbos on Yom Tov and therefore someone not preparing food has no need for one, or is there a rabbinic requirement to make an eruv tavshillin even when one will not be cooking? Avrumie will not be preparing food for Shabbos, whereas Michal will only be kindling the Shabbos lights. I will discuss soon whether this distinction affects our question. In the interim, I will discuss Avrumie’s situation by presenting two differing ways of understanding the function of eruv tavshillin, that I will describe as (A) matir, license or (B) chovah, obligation.

A. Matir

According to this approach, eruv tavshillin functions solely to permit one to cook on Yom Tov for Shabbos, so that one who is not planning to cook on Yom Tov for Shabbos has no requirement to make an eruv tavshillin. This opinion compares eruv tavshillin to the mitzvah of shechitah. One is not required to shecht an animal; however, someone interested in converting a bird or animal into food must perform shechitah to make it kosher. Thus, shechitah is a matir; it permits one to eat the meat, but one is not required to shecht an animal if one does not want to eat it. Similarly, eruv tavshillin permits one to cook for Shabbos, but one who does not intend to cook does not need to make an eruv.

Those following this approach will note that the other types of eruv (eruvei chatzeiros and eruvei techumim) are both types of matir that permit either carrying or traveling that is otherwise prohibited, and may question why eruv tavshillin should be any different.

According to this approach, Avrumie has no need for an eruv tavshillin since he has no intention to cook for Shabbos. We will discuss shortly whether Michal’s kindling requires her to make an eruv tavshillin.

B. Chovah

On the other hand, one could argue that eruv tavshillin is different from the other two types of eruv, and is an obligatory act. This approach understands that Chazal created a rabbinic mitzvah requiring each individual or family to make an eruv tavshillin even if there is no intention to cook or bake on Yom Tov for Shabbos.

Why should eruv tavshillin be different from the other types of eruv? To answer this question we need to explain the reason for the rabbinic mitzvah called eruv tavshillin.

WHAT IS THE REASON FOR ERUV TAVSHILLIN?

Why did Chazal establish this mitzvah? The Gemara records a dispute why Chazal introduced eruv tavshillin: Was it for the sake of honoring Shabbos, or for the sake of honoring Yom Tov (Beitzah 15b)?

A. For Shabbos

According to the first opinion, that of Rava, Chazal instituted eruv tavshillin to guarantee that one not become so involved in the Yom Tov feasting that one forgets to prepare proper meals for Shabbos. The eruv tavshillin therefore serves as a red “flag”: “Don’t forget to also produce delicious repasts for Shabbos!”

B. For Yom Tov

The other approach, that of Rav Ashi, contends that eruv tavshillin reinforces the sanctity of Yom Tov by emphasizing that without the eruv tavshillin one may not cook on Yom Tov, even for Shabbos. A person thereby realizes: if cooking for Shabbos (on Yom Tov) is forbidden without an eruv tavshillin, certainly one may not prepare food on Yom Tov for a subsequent weekday!

How does this dispute affect Avrumie, Michal and Muttie?

The basis for treating eruv tavshillin as a chovah, an obligation, and not merely a matir, is Rava’s opinion that eruv tavshillin’s purpose is to guarantee that one celebrates Shabbos properly. In other words, eruv tavshillin is to remind us to cook for Shabbos. Clearly, this is not a matir, but a chovah. In Rava’s opinion, eruv tavshillin is similar to the rabbinic requirement of kindling lights before Shabbos to ensure that one does not sit in the dark. Even someone who enjoys sitting in the dark is required to kindle lights before Shabbos since this is not a matir but a chovah. Thus, according to Rava, Avrumie must make an eruv tavshillin (or be included in someone else’s), even though he has no intention to cook, because eruv tavshillin is a requirement that Chazal placed on every individual to remind him to prepare appropriate meals for Shabbos.

DO WE FOLLOW RAVA’S APPROACH?

However, the halacha does not follow Rava’s opinion, but Rav Ashi’s position that the purpose of eruv tavshillin is for Yom Tov’s honor. As noted above, Rav Ashi contended that the reason for eruv tavshillin is to guarantee that people realize that Yom Tov is so holy that one may not cook on it for afterwards. According to this approach, one could argue that eruv tavshillin is simply a matir but that one who does not intend to cook for Shabbos need not make an eruv tavshillin, since if one is not cooking for Shabbos, it is unlikely that he will cook for the weekdays after Shabbos.

On the other hand, the usual halachic assumption is that when the Gemara quotes two disputing opinions, the disagreement only concerns the one point mentioned and no other issues. Thus, once we have demonstrated that Rava contends that eruv tavshillin is mandatory, we should conclude either one of the following two points:

1. That the issue of whether eruv tavshillin is a matir or a chovah is itself the focal point of the dispute between Rav Ashi and Rava.

2. That Rav Ashi and Rava agree that eruv tavshillin is mandatory and not merely a matir.

The difficulty with the first approach is that we see no evidence that Rav Ashi considers eruv tavshillin to be only a matir. On the contrary, the Gemara maintains that the dispute between Rav Ashi and Rava is whether eruv tavshillin is for the honor of Yom Tov or of Shabbos. Since Rava must maintain that eruv tavshillin is a chovah, and the dispute between them concerns only whether eruv tavshillin is for the honor of Yom Tov or of Shabbos, we should infer that Rav Ashi agrees that eruv tavshillin is a chovah. This analysis would conclude that Avrumie, Michal and Muttie are all required to make an eruv tavshillin. However, notwithstanding this analysis, I have found no early source who states that eruv tavshillin is obligatory for someone who has no need to cook for Shabbos.

LITERATURE

Having discussed whether eruv tavshillin is a matir or a chovah we can now research whether the halachic literature produces any evidence supporting either side of this question. Analysis of the position of one recognized halachic authority demonstrates that he felt that eruv tavshillin is a matir, not a chovah.

A respected commentary on the Shulchan Aruch, the Maamar Mordechai (527:18), discusses the exact issue that I posed as Michal’s shaylah:

Someone will not be cooking or baking on Yom Tov for Shabbos, but will need to kindle lights immediately before the entry of Shabbos. Does this person recite a bracha prior to making his/her eruv tavshillin?

The background to his question is the dispute of the Rishonim whether a person may kindle lights for Shabbos even if he did not make an eruv tavshillin. In other words, some Rishonim hold that an eruv tavshillin is not only necessary to permit cooking on Yom Tov, but it is also necessary to permit any preparations for Shabbos.

The Maamar Mordechai rules that since many authorities contend that kindling lights for Shabbos does not require an eruv tavshillin, someone not intending to cook for Shabbos should make an eruv tavshillin without reciting a bracha.

Implicit in the Maamar Mordechai’s conclusion is that the purpose of eruv tavshillin is exclusively to permit cooking and baking on Yom Tov, and there is no independent requirement to make an eruv tavshillin. If the Maamar Mordechai felt that eruv tavshillin is a chovah and not merely a matir, the dispute whether one can kindle lights without an eruv tavshillin is irrelevant to whether one recites a bracha or not. Whether one needs the eruv tavshillin or not, one would recite a bracha for performing the mitzvah that Chazal instituted! Thus, the Maamar Mordechai clearly holds that eruv tavshillin is only a matir, and that one recites the bracha only if the matir is required.

However, the Maamar Mordechai’s ruling is not obvious, even assuming that eruv tavshillin is only a matir and not a chovah. It is possible that one should recite a bracha on making the eruv tavshillin even if he has no intention to cook on Yom Tov, since the eruv permits him to cook should he choose to. Thus, the eruv tavshillin fulfilled its role as a matir in permitting him to cook, and for that alone he should be able to recite a bracha even if he has no intention to cook. Yet the Maamar Mordechai values the eruv tavshillin only if one intends to use it, whereas if one does not intend to use it, it is considered purposeless and warrants no bracha. Thus, according to the Maamar Mordechai, Michal and Muttie should make an eruv tavshillin without a bracha.

I was asked this exact shaylah once when the first day of Pesach occurred on Thursday. Those of us who live in Eretz Yisrael had no mitzvah of eruv tavshillin since, for us, Friday was not Yom Tov. However, we (my family) had several guests for Yom Tov who live in chutz la’aretz and observe two days of Yom Tov even while visiting Eretz Yisroel. For them, it was prohibited to cook on Yom Tov without an eruv tavshillin. I suggested that they make an eruv tavshillin with a bracha, but out of deference to the opinion of the Maamar Mordechai, instructed that those reciting a bracha should participate in the cooking for Shabbos that will transpire on Yom Tov at least in a small way. Of course, I suggest that those of you faced with the same shaylah as Avrumie, Michal or Muttie ask your own rav for direction. I would be curious to know whether he agreed with me and, if not, for what reason?

THE HASHKAFAH OF PREPARING FOOD ON YOM TOV

The Torah refers to the Yomim Tovim as Moed. Just as the word ohel moed refers to the tent in the desert which served as a meeting place between Hashem and the Jewish people, so too, a moed is a meeting time between Hashem and the Jewish people (Hirsch, Vayikra 23:3 and Horeb). Unlike Shabbos, when we refrain from all melacha activity, on Yom Tov the Torah permitted melacha activity that enhances the celebration of the Yom Tov as a Moed. Permitting the preparations of delicious, freshly prepared meals allows an even greater celebration of this unique meeting time with Hashem.

To understand the question properly, we need to study some background material. The Gemara (Makkos 23b) teaches that Hashem commanded 613 mitzvos, 365 negative mitzvos (lo saaseh) and 248 positive (mitzvos aseh) ones, although it does not list them. Yet we know that the Torah commands us what to do thousands of times. Obviously, most of these commands are not counted, but which ones? Furthermore, by mentioning that there are 613 specific mitzvos, the Gemara implies the importance of identifying them. This last factor led many early authorities to pinpoint the exact identity of these 613 mitzvos. In fact, the Geonim and Rishonim authored a vast literature debating and categorizing what exactly comprises these 613 mitzvos.

Two Early Counts

Rav Saadiah Gaon authored one of the earliest lists. He wrote an alphabetic poem that mentions all the mitzvos, without any explanation why he counted the commandments he did and did not count others. Rav Yeruchem Fishel Perla, a talmid chacham of note who lived in Warsaw during the time of the First World War, analyzed Rav Saadiah’s mitzvah list and compared it with the other opinions found among the Geonim and Rishonim. This three-volume magnum opus remains a classic, if underutilized, resource.

Baal Halachos Gedolos

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

Will the Real Mitzvah Please Stand Up?

The Rambam disagreed sharply with the Behag’s list, and devoted much of his work, the Sefer Hamitzvos, to clarifying what the 613 mitzvos really are. The Rambam even mentions that the many piyutim based on the Behag’s list are in error; however, he does not fault the authors involved, noting that they were poets and not rabbis (Introduction to Sefer Hamitzvos).

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

Although many authors discuss what to include in the count of the 613 mitzvos, it is noteworthy that few of them discuss why it is important to know what are the 613 mitzvos — other than to understand the Gemara’s statement quoted above.

On the other hand, the Rambam does explain why he listed the mitzvos. In his introduction to Sefer Hamitzvos, he describes how he has decided to write a work that includes all of the halachos of the Torah, but without any sources and debate. The work he indeed eventually wrote and called it the Mishneh Torah. The Rambam describes how he decided to structure the Mishneh Torah according to related mitzvah topics, rather than follow the order of the Mishnah. The Rambam then mentions that he decided to precede each section of the Mishneh Torah with an introduction in which he would list the mitzvos included in that section.

Why the Sefer Hamitzvos?

At this point, the Rambam notes a concern. Prior to this time, the standard work listing the 613 mitzvos was the Behag, a list with which the Rambam disagreed. This meant that if the Rambam listed the mitzvos before each section of his Mishneh Torah according to this own list, he would be disputing an accepted approach to Judaism. Thus, he was in quandary. On the one hand, his Mishneh Torah would be incomplete without listing the mitzvos involved in each of its sections; while on the other hand, people might reject this list unless he explained its rules and why he disputed what was heretofore accepted. For this reason, the Rambam explains, he wrote the entire Sefer Hamitzvos as an introduction to his Mishneh Torah in order to explain the rules that determine what counts as a mitzvah and what does not. In a way, writing the the Sefer Hamitzvos was bolder and more innovative than writing either the Moreh Nevuchim or even the Mishneh Torah itself, since the Sefer Hamitzvos disputed a theretofore completely accepted system.

Although some authors subsequently disputed parts of the Rambam’s system, in general, the Jewish people have more-or-less accepted his list of mitzvos and his rules determining what counts as a mitzvah. For example, a later work, the Sefer Hamitzvos HaGadol, usually called by its Hebrew acronym, the Smag, compiled his own list of the 613 mitzvos. Although he disputes with the Rambam’s conclusions on a number of occasions, he still accepts most of the Rambam’s basic definitions as to what comprises a mitzvah and what does not. His disagreements with the Rambam generally involve specific interpretations and applications, not the basic rules.

The Sefer Hachinuch

The most familiar list of the 613 mitzvos is that of the Sefer Hachinuch. Actually, this author did not develop his own count of 613 mitzvos, as he mentions himself several times in his work. Rather, he followed the Rambam. However, whereas the previous mitzvah counters, Rav Saadiah, the Behag, the Rambam and the Smag, all listed the mitzvos in a logical pattern, the Sefer Hachinuch rearranged the Rambam’s list, numbering each mitzvah according to its appearance in the Torah. He further introduced each parshah with its list of mitzvos. The Sefer Hachinuch’s reorganized list is the most commonly used today to count the 613 mitzvos. By the way, although it is important to know and understand the 613 mitzvos, there is no halachic significance in knowing the chronological number associated with a particular mitzvah. For this reason, there is no reason to memorize the mitzvos according to the number assigned them by the Sefer Hachinuch.

This Week’s Mitzvos

Now I can finally explain what I meant about “dropping” a mitzvah. In this week’s parshah, the Sefer Hachinuch counts sixteen mitzvos, eleven positive and five negative ones. The problem is that, according to most authorities, both he and the Rambam should have counted one more negative mitzvah.

Which mitzvah are they accused of omiting?

The Torah mentions many types of korbanos in the course of the parshah, some of animals, some of birds, and some of flour. When the olah offering is placed on the mizbei’ach, the altar, the Torah requires that it first be cut up into large pieces, similar in size to the large pieces of meat that a butcher may receive. It is forbidden to cut the meat into smaller pieces in order to place them on the mizbei’ach, nor may one place the entire carcass on the mizbei’ach without first cutting it up.

However, when the Torah discusses offering a bird as an olah, usually called the olas ha’of, the halachah is different and one may place the entire bird on the mizbei’ach at once, just as people commonly barbecue an entire bird. But what happens if the kohen chose to separate the bird in half before placing it on the mizbei’ach? According to the Rambam, one may separate the bird into parts if one chooses (Hilchos Maasei Hakorbanos 6:22). However, most authorities prohibit this, contending that severing the bird violates one of the 365 negative commandments of the Torah (Behag; Yerei’im). Thus, in their opinion, one who severs the bird commits a punishable offence similar to wearing shatnez or eating non-kosher!

Lo Yavdil

The above dispute stems from two differing approaches how to interpret two words in this week’s parshah: “lo yavdil,” (Vayikra 1:17). Does the Torah mean, he (the kohen processing the olas ha’of) is not required to separate it, or does the Torah mean, he shall not separate it.

Since the Rambam interprets the words according to the first explanation, and therefore rules that one may separate the bird, he does not count this as a mitzvah, and the Sefer Hachinuch follows this approach. As a result, the Sefer Hachinuch does not count this mitzvah among those of this week’s parshah.Hee counts sixteen mitzvos, eleven positive and five negative ones, whereas if this mitzvah was counted, there should be seventeen mitzvos, eleven positive and six negative ones.

Explaining our Question

Now I can explain what I meant in the title to this article. Although we generally follow the Rambam’s count of mitzvos, in this instance the Rambam is a minority opinion. Based on substantive proofs, the later authorities contend that we should not follow his approach, but consider this a lo saaseh (Malbim; Sfas Emes, Zevachim 64a; To’afos Re’im; Hirsch; Rav Yeruchem Fishel Perla’s commentary of Rav Saadiah, Lo Saaseh 194). That means that we have a total of 614 mitzvos, the Rambam’s 613 plus this mitzvah, or, even more specifically, we will have 366 negative mitzvos, rather than the 365 that the Gemara mentions. Obviously, we have counted something as a mitzvah that we should not have! We need to determine which negative mitzvah counted by the Rambam must be removed from the list in order to make room for this one.

Since none of the mitzvos that the Rambam selected have volunteered to resign, we are left with the unenviable responsibility of deciding which one to remove.

Assuming this awesome responsibility brings to my mind the epigram originally written by the Eighteenth Century English poet, Alexander Pope: Fools rush in where angels fear to tread.

Of course, I am not advocating the rewrite of any part of Sefer Hachinuch. I am merely suggesting that there is much to gain by exploring some candidates for de-mitzvah-ication. This certainly provides an opportunity to examine and appreciate what is involved in “counting mitzvos.”

Watch that Mikdash!

One possible candidate could be the lo saaseh requiring the kohanim and the levi’im to guard the Mishkan/Beis Hamikdash by posting watchmen in various places. Just as Buckingham Palace has a military detail guarding the monarch’s residence, so too, the “palace” that we erect in Hashem’s honor must have an honor guard (Rambam, Hilchos Beis Habechirah 8:1). The Mishkan and the Beis Hamikdash certainly deserve as much pomp and honor as a mortal king receives!

This requirement would appear to be a positive mitzvah: Safewatching the holy place. Yet, in observing this requirement, the Rambam and the Sefer Hachinuch (Mitzvah 391) count both a positive mitzvah, to maintain the watch (Sefer Hamitzvos aseh 22; Sefer Hachinuch, Mitzvah 388), and a negative one, not to abandon the guard (Rambam, Hilchos Beis Habechirah 8:3; Sefer Hamitzvos, lo saaseh 67; Sefer Hachinuch, Mitzvah 391). Even more interesting is that their source for the negative mitzvah in Parshas Korach sounds like a positive mitzvah: And you shall safeguard the charge of the holy area (Bamidbar 18:5). Furthermore, this verse is an almost verbatim repeat of the previous verse, which is quoted as the source for the positive mitzvah, And they shall safeguard the charge of the holy area (Bamidbar 18:4). Indeed, this is presumably the reason why other Rishonim count this only as a positive command and not as a negative one (Smag).

To explain the Rambam’s position, the Sefer Hachinuch and the Mahari Korkos note the Gemara that states that the word hishameir, Guard, always introduces lo saaseh mitzvos, and both the Sefer Hachinuch and the Rambam quote a Medrash Halachah that explains that the repeated verse is to teach that this mitzvah is both a positive mitzvah and a negative one. Many later authorities debate whether to accept this conclusion of the Rambam, and offer other interpretations of this Medrash (Birkei Yosef, Orach Chayim 30:1).

A Tamei Entering the Mikdash

We will now explore a different approach to resolving our original question. The Torah prohibits a tamei person from entering the Beis Hamikdash area. This mitzvah is of course very dear to us in a discussion taking place in the season when our thoughts are drawn to our desire to bring the korban Pesach soon.

People usually become tamei by contacting tumah from a tamei source, such as a corpse or animal carcass. Such people are prohibited min haTorah only from entering the courtyard (chatzeir) of the Mishkan, or its corresponding area of the Beis Hamikdash, the Azarah, but not the rest of the Mishkan or the Beis Hamikdash (Pesachim 67a). The Rambam counts this prohibition as lo saaseh 77, deriving it from the verse: They shall not contaminate their encampments (Bamidbar 5:3).

There is another, more severe, category of tumah called tumah yotzei migufo, tumah that originates in the body, which includes such types of tumah as zav. These types of tumah are listed in Parshas Tazria, which we will read shortly after Pesach. People afflicted with these types of tumah may not enter the entire area called machaneh leviyah, which includes the entire Har Habayis, called in English, “The Temple Mount.”

One Mitzvah or Two?

Although everyone agrees that the Torah created two different levels of prohibition, the question is whether we count them as two separate mitzvos within the count of 365 negative mitzvos, or as one. The Rambam counts them as two separate lo saaseh mitzvos, numbers 77 and 78, deriving the second prohibition from the verse, He shall not enter the middle of the camp (Devarim 23:11), whereas others count these as one mitzvah (Smag, Lo saaseh 304). Thus, by following the Smag’s decision to count these two laws as one mitzvah, we would now have only 364 mitzvos lo saaseh and be able to add our parshah’s extra mitzvah, not to sever the olas-ha’of, in order to bring our numbers back up to 365.

Kosher Choices

Having discussed several mitzvos germane to the Beis Hamikdash where we might be able to “delete” a mitzvah, let us see if there are any other candidates. In the world of kashrus we can nominate not one, but two candidates:

The Rambam counts a total of five different negative commandments connected with eating insects and other small creatures (Lo saaseh numbers 175- 179) that fall under five different categories. These mitzvos are not mutually exclusive; quite the contrary, a particular creature may be included under several, or perhaps even all, of these prohibitions. The five prohibitions are:

1. Not to eat small flying creatures.

2. Not to eat small crawling creatures.

3. Not to eat creatures that appear to generate from rotting material (Hilchos Maachalos Asuros 2:13).

4. Not to eat creatures that develop within fruits and seeds (Hilchos Maachalos Asuros 2:14).

5. Not to eat any small creatures. The fifth category includes any of the others, as I will explain (Hilchos Maachalos Asuros 2:12).

One who consumes a creature that has several of these features violates a separate lo saaseh for each category that includes it. Thus, eating a small swimming creature will violate only one of these prohibitions (the fifth one); consuming a creature that both flies and crawls will involve three prohibitions (1, 2 and 5); if it also appears to develop from rotting material, one will violate four prohibitions (1, 2, 3, and 5), and if it develops within fruit or seeds, one will violate all five.

Where is the dispute?

Although the Rambam counts all five of these prohibitions as different mitzvos, each with its own rules, many of the other Rishonim do not count the third and fourth mitzvos that the Rambam counts as separate mitzvos (Smag; Ramban, Notes to Sefer Hamitzvos, Shoresh 9:9). Thus, according to the latter approach, someone who ate a small creature that flies, crawls and appears to develop from rotting material, will violate three prohibitions, not four. Consequently, they could count our original candidate, not to sever the olah-bird, without exceeding the limit of 365 negatives mitzvos. In fact, by excluding two mitzvos and adding only one, we would end up one mitzvah short and need to find one more to add to the list. We will leave that question for a different time.

Conclusion

Should one count the mitzvah of lo yavdil in this week’s parshah as one of the 613 mitzvos? According to most authorities, one should. Regarding the follow-up question, “But then we have 366 lo saaseh mitzvos, and the Gemara says that there are only 365,” I would answer that although it is not our place to determine definitely which the 613 mitzvos are, we should study the topic thoroughly to see which mitzvos are disputed. We have now seen some possible choices and deepened our understanding of what it means to count something as a “mitzvah.”

Why the Bird?

Rav Samson Raphael Hirsch (Vayikra 1:17) notes that the many laws involved in the processing of an olas ha’of are considerably different from those of other korbanos. To explain this korban’s many anomalous rules, he notes that Tanach often uses a bird as a metaphor for an imperiled, defenseless person in flight from his pursuer, and that an olas ha’of is symbolic of how a forlorn, suffering individual relates to Hashem because of his fate. The imperiled person can use the anguish itself as a springboard for ascent and advancement by clinging to the heights of Torah ideals even in his predicament. This korban teaches that even when the going gets tough, one must never let go the yearning to draw closer to Hashem.

Question #1: MYSTERY IN THE COATROOM

Our shul has coats, umbrellas and other items that have been sitting in the coatroom for months. We have hung notices asking people to check if they have any clothing there, but many items remain. The shul is now undergoing renovation which will ruin whatever remains. What can we do with the accumulated clothing?

Question #2: ON THE STREETS OF NEW YORK

Walking down a New York street, Suzie’s attention is attracted by a bag, bearing the logo of a seforim store, that is lying on a street corner. Opening the bag, she discovers a sefer that appears to have been purchased from that store and a handmade sweater. What should she do?

Shaylos like these happen to each of us almost daily. What rules govern what to do with found property?

In this week’s parsha the Torah teaches: You shall not see the lost ox or lamb of your brother and ignore them; you shall certainly return them to your brother. If your brother is not nearby or you do not know him, gather the animal into your house and it should stay with you until your brother inquires about it and you shall return it to him. So shall you do to his donkey and to his garment and any other lost item of his that you find; you may not ignore it (Devorim 22:1-3). The Torah here amplifies the mitzvah taught in Parshas Mishpatim where it states: If you will encounter the lost ox or donkey of your enemy, you shall certainly return it to him (Shemos 23:4).

Although the Torah discusses oxen, lambs and donkeys, the rules of lost objects apply equally to our modern shaylos. Assuming that you might be able to identify the owner of an item, you are usually required to pick up a lost item and return it to the owner. However, there are many details about these halachos that affect the shaylos mentioned above.

THE BASIC RULES

When must a finder pick up a lost item in order to return it, and when is retrieving it optional? When must he leave it untouched? When must he attempt to locate the one who lost it and when not? When may he keep a lost item and when not? The first step in understanding these complex rules is to understand the legal concept called ye’ush. Ye’ush is when a person despairs of retrieving his property. Here is an example:

Someone lost something in a place where whoever finds it will probably not return it — for example, in a city where most people do not return lost objects. Since the owner does not expect to recover his property, ye’ush transpires even though the owner could readily identify what was once his possession. In this case, the finder is permitted to keep the found object (Bava Metzia 24a). Why?

Ye’ush is halachically equivalent to relinquishing ownership. Since the owner already accepted the loss, the Torah does not require the finder to return the lost item. However, this applies only if the finder picked up the lost object after ye’ush took place. If the finder picks up the lost item after ye’ush, he is not required to return it, nevertheless, it is still preferable (lifnim mishuras hadin) to return the lost item to the owner (Bava Metzia 24b).

AN IMPORTANT EXCEPTION

Although a finder may keep an item after ye’ush, as I explained above, there is a very important caveat. He may only keep the lost item if he can assume that the owner has already found out about his loss and therefore was me’ya’eish, despaired from recovering it (Bava Metzia 21b-22b). However, if the finder picked up the lost object before ye’ush, he became obligated in the mitzvah of hashavas aveidah, and may not keep the item even after the owner despairs of recovery (Bava Metzia 26b). This is true even if the owner will be me’ya’eish as soon as he becomes aware of his loss. Since the owner is as yet unaware of his loss, he cannot consciously despair and create ye’ush. This situation is called ye’ush shelo midaas, a case where the despair is inevitable, but has not yet transpired.

YE’USH SHELO MIDAAS – “UNKNOWING” YE’USH

One of the debates that initiates many into Gemara study is the dispute between Abaye and Rava regarding ye’ush shelo midaas, a situation in which we know that the owner will be me’ya’eish as soon as he realizes his loss, yet as of this moment, he is probably still unaware of his loss. Abaye contends that ye’ush shelo midaas does not constitute ye’ush, because ye’ush does not make a lost object effectively ownerless until the owner becomes aware of his loss and despairs. Until this happens, the lost property still belongs to the first owner and the finder cannot take possession. Rava argues that ye’ush shelo midaas constitutes ye’ush: since the owner will certainly despair of recovering the property as soon as he realizes his loss, we assume that ye’ush has already transpired and a finder may keep the lost item (Bava Metzia 21b-22b).

How do we rule?

Although in the dozens of disputes between Abaye and Rava, Rava’s opinion usually wins, this is one of the six exceptions where the Gemara rules according to Abaye; ye’ush shelo midaas does not constitute ye’ush. Therefore, one cannot take possession of a lost item unless one can assume that the owner has already discovered his loss and despaired of its recovery.

Here is a practical case:

On the subway you see a frum but unfamiliar person rush off the car, forgetting her umbrella. Clearly, she will be me’ya’eish as soon as she realizes that she is missing her umbrella; nevertheless, according to Abaye you may not keep the umbrella unless you are certain that she has realized her loss before you picked it up. Before that time, the umbrella is still the property of the person who lost it and someone picking it up becomes responsible to try to return it.

How long must you wait to be certain that she discovers her loss? This depends on the circumstances. If the owner left the subway this moment and it is raining, you may assume she realized her loss as soon as she reached the street. However, if it is not raining, or she was transferring to another train, you must wait until it rains to assume that she has realized her loss.

May you leave the umbrella in its place? After all, the Torah states that you may not ignore a lost object.

The answer it that there is no requirement to pick up a lost item if there is no reasonable possibility that you will be able to locate the owner.

Must one abandon the umbrella? Halachically, one may not take possession of the umbrella, but can pick it up for the loser. However, once one picked it up, some poskim contend that one is responsible to hold on to it indefinitely. (In my opinion, one may take the umbrella and use it after following certain procedures which I discussed in the different article.)

We are almost ready to analyze what to do in the case-studies I presented at the beginning of the article. But first we need to explain one more principle.

SIMAN – AN IDENTIFYING MARK

When the Torah required returning a lost object, the Torah was primarily referring to an item bearing an identifying mark (a siman) since the owner may still hope to recover it (Mishnah Bava Metzia 24b). One who finds an object with a siman in a place with a substantial population of observant Jews should assume that the owner was not me’ya’eish. The finder must retrieve the item and return it to its owner. If the finder cannot readily identify the owner, one is required to announce it (Mishnah Bava Metzia 27b).

A siman is something that positively identifies an object as belonging to its owner (Shulchan Aruch Choshen Mishpat 267:4). It must be a feature by which the owner could clearly identify the object as his own, such as a nametag, or an unusual marking or blemish. Color or style of manufacture is not a valid siman (Sma 267:9) since knowing these characteristics do not demonstrate that one is its rightful owner. A siman must be a characteristic that only the owner would know (see Shulchan Aruch Choshen Mishpat 267:12). Therefore, the fact that something is obviously homemade, such as a hand knit sweater or scarf, is in itself regarded as having a siman (see Mishnah Bava Metzia 25a).

When one announces that he has found a lost item, he should not reveal the siman, nor return the item to the person claiming to be its owner unless the claimant reveals knowledge of a valid siman (Bava Metzia 27b).

If a lost item has no siman, the finder is not required to retrieve it since he cannot return it to the owner. Nevertheless, in several instances the finder may not keep the item even though the lost item has no siman, and in some circumstances he should not pick up the lost item. One situation is where the owner does not yet know that he lost it (ye’ush shelo midaas). Since we rule like Abaye that ye’ush shelo midaas is not valid ye’ush, one cannot acquire an item until ye’ush transpires. On the other hand, returning this item to its rightful owner is impossible since the person claiming to be the rightful owner must identify the object with a siman (Bava Metzia 27b). Therefore, it may be better not to pick up an item where the law of ye’ush shelo midaas applies.

DERECH HINUACH

The second instance where the finder may not pick up an item is when the owner intentionally placed the item in a particular place (makom hinuach) and subsequently forgot about it. For example, one finds a coat or umbrella abandoned in a coatroom, or a talis hanging outside the men’s room. In these cases, by removing the item from its place one jeopardizes the owner’s ability to retrieve it since the owner might later remember where he left it and return for it. However, once the finder removed the item, the owner can no longer retrieve it and will thereby suffer a loss. Therefore, the finder should leave the item unhindered (see Bava Metzia 25b).

I once left a sefer, one volume of a multi-volume set, in the coatroom of a wedding hall. Later that day I realized that I had left the sefer behind and I returned for it. Alas, the sefer had disappeared already!! Had the finder of this sefer followed the halacha, I would still possess a complete set of these Mishnayos; instead I need to borrow this volume whenever I need it.

The major exception to this latter case is when the forgotten item will disappear. The Gemara provides an example of this situation: someone found an item that had been placed in a garbage heap that is usually abandoned, but is being cleared away (Bava Metzia 24a). Obviously, the owner is better off if the finder takes the item and announces it, than if he abandons it and it disappears.

But, wait a minute — How will the owner be able to claim the item if it has no siman? Didn’t I mention earlier that one may not return an item unless the owner proves his ownership with an identifying siman?

KNOWLEDGE PROVES OWNERSHIP

The answer is that in this instance the location of the lost item serves as its siman. Since no one but the owner knows where the item was hidden, this information validates his claim (Bava Metzia 22b). Therefore one should take the item and announce it as a lost object.

At this point, we can now analyze the first question raised at the beginning of this article:

Our shul has coats, umbrellas and other items that have been sitting in the coatroom for months. We have hung notices asking people to check if they have any clothing there, but many coats still remain. The shul is now undergoing renovation which will ruin any remaining clothing. What can we do with them?

This case has an obvious solution. Since the renovations will ruin anything remaining in the coatroom, one may certainly remove them and treat them as one would treat any other lost objects. Although under these specific circumstances some poskim permit disposing or keeping these items, most authorities require these items be kept in a secure place in case the owners returning for them. One should place a notice on the bulletin board advising people whom to contact.

At this point, we can discuss our second question at the start of the article:

Walking down a New York street, Suzie notices a bag bearing the logo of a seforim store that contains a handmade sweater and a brand new sefer. What should she do?

As I mentioned above, there is no requirement to return a lost item unless (a) the item has a siman and (b) one found it in a place where the loser thinks people will return it.

Regarding the sefer, if it is brand new, it will probably have no identifying siman. On the other hand, if the sefer is used, it may have a siman. However in this particular case, even a brand new sefer will have a siman, since it was located together with the sweater, which has a siman.

However, in this particular case, Suzie is not required to return the items or attempt to locate the owner since she found them on the streets of New York. As I mentioned above, someone losing an item in a place where most of the population does not return lost objects is me’ya’aish as soon as he realizes his loss. After ye’ush has transpired, there is no requirement to return an item, although it is meritorious to. Thus, Suzie is not required to locate the owner, although it is preferable to do so.

By the way, returning the sefer to the store accomplishes nothing, since the store no longer owns it. However, contacting the store and notifying them that she found the bag is certainly meritorious since the loser may thereby be able to contact her.

May Suzie keep the lost items?

This will depend on whether we can assume that the owner already realized he had lost them. If he has not yet realized, Suzie may not keep them since ye’ush shelo midaas is not valid ye’ush. Even if we were to assume that the owner will eventually give up hope of seeing his property again, Suzie cannot take possession since ye’ush took place only after she picked up the items. Thus, Suzie cannot keep the sefer and sweater unless she is reasonably certain that the owner realized his loss before she picked up the bag.

A REVIEW OF THE BASIC RULES:

We have learned the following basic rules of returning lost items:

I. Someone who finds a lost item that bears a siman, that is, some way that the owner can prove his ownership, must return the item if it was found in a place where most people return lost objects (see Shulchan Aruch Choshen Mishpat 259:3).

II. Someone may ignore a lost item if there is no way that it will be returned to its owner anyway.

III. After the owner of a lost object despairs of recovering the object, we treat it as ownerless.

IV. Something found in a place where most of the population does not return lost objects may be treated as ownerless even if it has a siman.

V. In the last three situations, if the item has a siman, it is preferred, but not required, to return the item.

VI. Someone who picks up an item before the owner was me’ya’eish may not keep it, even if he kept it until we are certain that the owner was me’ya’eish.

VII. One should not touch an item that an owner placed down intentionally unless the item will disappear.

Since many have the custom of studying the 613 mitzvos on Shavuos, I will address this topic:

We all know that the Torah contains 613 Mitzvos. However, most of us are unaware of the vast literature that debates, disputes and categorizes what exactly comprises these 613 Mitzvos, and the halachic ramifications resulting from these discussions. I will simply note that counting every time the Torah says to do or not to do something, will result in thousands of Mitzvos. Aren’t we shortchanging ourselves by limiting our mitzvah count to 613? Since the Mishnah (at the end of Makkos) states: Hashem wanted to provide Israel with much merit and therefore, provided them with much Torah and many Mitzvos, why do we limit the count to 613?

Why 613?

What is the source for the count of 613 Mitzvos?

The Gemara teaches: Rav Simla’i explained: “Moshe Rabbeinu was taught 613 Mitzvos, 365 negative Mitzvos equal to the number of days of the solar year, and 248 positive Mitzvos, corresponding to a man’s number of ‘limbs.’ ” Rav Hamnuna said: “What verse teaches this to us: ‘Torah tzivah lanu Moshe morashah kehilas Yaakov’ Moshe taught us the Torah, which is an inheritance of the community descended from Yaakov. The Gematriya (numerical value) of the word Torah equals 611, and two Mitzvos of Anochi Hashem and Lo Yihyeh Lecha were taught to us directly by Hashem” (Makkos 23b).

Thus we now know that we have 613 counted Mitzvos, and yet there are thousands of places that the Torah commands us what to do. Obviously, some of the Torah’s commandments are not counted, but which ones? And why should the Gemara not want to count them? This question led many early authorities to calculate exactly what is exactly included in the 613 Mitzvos and thereby understand what the Gemara means. Several Geonim and Rishonim authored works that list the 613 Mitzvos of the Torah, and no two lists are the same. As a matte of fact, there are major disputes among the early authorities what are the rules that govern what we include in the count of the 613 mitzvos.

The Sefer Hachinuch

Most of us are familiar with the listing of the 613 Mitzvos of the Sefer Hachinuch. Actually, this author did not develop his own list of 613 Mitzvos, as he mentions himself several times in his work. He followed the calculation of the Rambam, who wrote a large work on the subject called Sefer HaMitzvos, which includes both the rules of when to count something as a mitzvah, and a list of the 248 Mitzvos aseh and the 365 Mitzvos lo saaseh, organized in a logical pattern.

Chronology versus Logic

The Sefer Hachinuch reorganized the Rambam’s list, numbering each mitzvah according to its first appearance in the Torah. Thus, the first mitzvah of the Torah, Pru Urvu, producing children, which is mentioned in Parshas Bereishis, is the first mitzvah; Bris Milah, mentioned in parshas Lech Lecha is counted as the second mitzvah, and Gid Hanasheh, taught in Parshas Vayishlach, completes the three Mitzvos mentioned in Sefer Bereishis. Parshas Bo contains a total of twenty Mitzvos, reflecting its significance as the first parsha in which Hashem directly commanded Mitzvos to the Jewish people, as Rabbi Yitzchak noted in the Midrash Rashi quotes in his opening words of his commentary to Chumash.

What Counts as a Mitzvah?

In the first section of the Sefer HaMitzvos, the Rambam details the rules that he used to determine what qualifies as a “mitzvah” in the count of 613. He establishes 14 rules, which include:

No Rabbinics

I. Any mitzvah that is only miderabbanan is not counted among the 613 Mitzvos. This rule may seem obvious since the Gemara is calculating the 613 Mitzvos that Hashem commanded us, and not those later added by the Sages. However, one of the greatest of the Geonim, the author of the Baal Halachos Gedolos, counts many Mitzvos derabbanan in his list of the 613, including kindling Ner Chanukah, reading Megillah on Purim, and Reciting Hallel. How could the Baal Halachos Gedolos include these in his list of Mitzvos that Hashem commanded us?

The Ramban, in his exhaustive commentary to the Rambam’s Sefer HaMitzvos, provides two answers:

A. There is an alternative text to the Gemara in Makkos, which reads, “The Jewish people are commanded 613 Mitzvos.” According to this wording, the Gemara there cites a Biblical verse not to imply that we derive these 613 Mitzvos from the Torah, but merely as a mnemonic device (based on the Gematriya of the word Torah) to remind us that there are a total of 613 Mitzvos of both Torah and rabbinical sources.

B. The Ramban contends that even the text of the Gemara that I quoted earlier, which states that Moshe Rabbeinu was commanded 611 Mitzvos, does not present an obstacle to the Behag’s approach, and could include Mitzvos introduced by Chazal. The Ramban cites many places where even though the Gemara states that “The Torah required…” or “Hashem said…” the statement refers to a rabbinic command, not a Torah requirement. In his opinion, Chazal used this terminology even in the context of Rabbinic requirements, since the Torah requires us to observe the Mitzvos that Chazal commanded.

Thus, although the Rambam insists that there are 613 Mitzvos that Hashem commanded the Jewish people, and his opinion is accepted by most authorities, there are substantive Torah leaders who understand that this list also includes Mitzvos introduced by the Sages.

Dispute the Rules

In addition to the above dispute, there are other authorities who disagree with almost all of the other thirteen rules that the Rambam used to define the Mitzvos. Nevertheless, since the Jewish people have come to accept the Rambam’s and Chinuch’s count of the Mitzvos, it is important for us to know and understand these rules.

II. Only What the Torah Says

The Rambam’s second rule is to not count any mitzvah that is derived hermeneutically, through a drasha, but only mitzvos that are mentioned outright in the Torah. Therefore, says the Rambam, we do not list the requirements to treat one’s stepfather or stepmother with appropriate respect as separate mitzvos, since these requirements are derived from the extra word es. Instead, these are included under the mitzvah of respecting one’s parents. Indeed, if we begin including these requirements as separate mitzvos, the list would be far greater than 613. Similarly, the Rambam rules not to count Visiting the Sick (Bikkur Cholim) or Comforting Mourners (Nichum Aveilim), as separate mitzvos, but includes them under the Torah’s mitzvah of emulating Hashem by acting in ways that imitate His acts of kindness.

III. Mitzvos are Forever!

One only counts a mitzvah that is everlasting, and not a mitzvah that is inherently temporary. For example, we do not count that a Levi may not serve in the Mishkan past his fiftieth birthday as one of the 613 commandments since this rule applied only in the Desert and not afterwards.

The reason for not counting these commandments is that the 613 Mitzvos bond an eternal relationship between Hashem and the Jewish people, and as such apply only to mitzvos that apply forever. However, many mitzvos unapplicable today due to the absence of the Beis Hamikdash still count in the list of 613. This is because these mitzvos are eternal commandments that are temporarily beyond our ability to observe.

IV. Torah, but Not the Whole Torah!

One should not count as part of the 613 any command that includes observing the entire Torah. For example, the Torah states: Be careful concerning all that I am telling you (Shemos 23:13) and Guard my decrees and observe my judgments (Vayikra 18:4). These and other similar statements are not counted among the 613 mitzvos. The Rambam explains that each of the 613 Mitzvos involves a different mode of developing our relationship with Hashem, while a pasuk that instructs to keep all the mitzvos is not indicating any specific way to grow.

V. No Reasons!

In the instances when the Torah provided a reason to observe a mitzvah, we do not count the reason as a separate mitzvah. Although these reasons are significant in understanding both our relationship with Hashem and why we observe His mitzvos, they do not obligate any additional actions with which to deepen our relationship with Hashem.

VI. Yes and No

When there are two commands pursuant to an activity, one a positive command (mitzvas aseh) and the other a negative mitzvah (mitzvas lo saaseh), we count the mitzvah twice, once among the 248 Mitzvos aseh and once among the 365 Mitzvos lo saaseh. There are numerous examples of this: For example, there is a positive mitzvah, “to keep Shabbos,” and a negative mitzvah, “not to perform melachah on Shabbos.” The situation is repeated concerning the observance of all the Yomim Tovim (seven times, or 14 more mitzvos), afflicting ourselves on Yom Kippur (which has both a positive and a negative commandment), and regarding all korbanos being salted before placing them on the mizbeiach (which also has a lo saaseh, Do not place unsalted korbanos on the mizbeiach).

VII. Details, Details

Details about when a mitzvah applies and how to fulfill it do not count as separate mitzvos. For example, for certain sins the Torah requires an atoning korban that has a sliding scale: a wealthy person offers an animal, a pauper offers only a grain offering, and someone in-between offers a dove or pigeon. All this counts as only one mitzvah, although there are many different ways of accomplishing it. Here again, there is one mitzvah that develops our relationship with Hashem, although depending on one’s financial circumstances, there are different ways to perform it. Dividing this into several mitzvos would send an erroneous message.

VIII. Not Every “No,” means “No!

There are instances where even though a verse might seem to be forbidding something, a careful reading of the verse indicates that the Torah is merely stating that something will not happen or does not need to be performed. Obviously, these instances do not qualify as mitzvos. For example, the Torah says that no prophet will arise who will be like Moshe. Although the wording of the Torah, Lo kam od navi kemoshe, might be read to mean, “No prophet should arise like Moshe,” which implies that we are commanded to make sure this does not happen, the translation of the verse is actually a prophetic Divine statement: “No prophet will arise like Moshe.” Thus, this verse is not a directive and does not count as a commandment.

IX. Five times One equals One.

When the Torah repeats a mitzvah many times, one does not count each time as a separate mitzvah, but we count it as one mitzvah. Therefore, although the Torah prohibits eating blood on several occasions, it counts as only one of the 613 mitzvos. As a result, in the Rambam’s opinion, someone who violates this prohibition is punished only as if he violated one lo saaseh, and not many.

According to this approach, when two similar mitzvos lo saaseh or two similar mitzvos aseh are both counted as mitzvos, this must be because one mitzvah is more comprehensive than the other is. Otherwise, this mitzvah would not be counted more than once.

Here is an example:

The Rambam counts two different mitzvos against owning chometz on Pesach, bal yera’eh, that chometz should not be seen, and bal yematzei, that chometz should not be found. Why does he count both of these mitzvos, whereas he counts only one mitzvah not to eat blood?

The answer is that these two mitzvos are not identical: bal yematzei includes cases that are not included under bal ye’ra’eh. Specifically, someone who buried chometz on his property does not violate bal ye’ra’eh, since the chometz cannot be seen. However, he does violate bal yematzei since the chometz can be found.

This distinction not only affects whether this mitzvah is counted once or twice among the 613, but also has other halachic ramifications. Someone who purchased chometz or mixed dough and allowed it to rise on Pesach thereby violates two different prohibitions. Since these prohibitions count as two separate mitzvos, the violater is punished for two different violations.

X. Prelimary Steps do not a Mitzvah Make

Preliminary steps involved in the performance of a mitzvah are not counted as a mitzvah on their own. For example, one does not count the statement that one should take flour to bring a korban mincha, a grain offering, as a mitzvah on its own. It is simply one stage in the performance of the mitzvah.

XI. Part of a Mitzvah is Equal to None

There are mitzvos in which several items are involved in successfully performing one mitzvah, such as taking the four species on Sukkos. The Rambam points out that one counts the taking of the four species as one mitzvah, not as four separate mitzvos, since taking each of them without the others, or even three without the fourth, does not execute any mitzvah.

XII. Completing one Part of a Mitzvah

Some mitzvos involve the successful completion of several other commandments, such as, the mitzvah to build the Mishkan/Beis Hamikdash, which involves the completion of many of the vessels, including the Menorah, the Shulchan, and the Altar. Each of these independent mitzvos is not counted separately: Since the purpose of all of them is the creation of the Mishkan/Beis Hamikdash, they are all included under the one mitzvah of building Hashem’s “house.”

XIII. Many Days are not Many Mitzvos

If a mitzvah persists for several days, one counts the mitzvah only once. It is interesting that the Rambam counts offering the Korban Musaf on Sukkos as only one mitzvah, even though the number of its bulls changes daily.

Included in this rule is that a mitzvah observed more than once a day is counted only once. Therefore, reciting Keriyas Shma every morning and evening is counted as only one mitzvah (Kinas Sofrim).

XIV. Punishments are not Mitzvos

When the Torah describes the punishment for violating a specific mitzvah, we do not count that punishment as a separate mitzvah in its own right.

Although almost every one of the Rambam’s rules has its disputants, this last rule is interesting because it entails a major dispute between the Geonim’s approach to counting mitzvos and the list of the Rambam. Several of the Geonim listed the 613 Mitzvos, and they counted everytime the Torah mentions a punishment for violating a certain command as a separate mitzvah. This is because the individual’s command not to violate this prohibition of the Torah counts as a mitzvah, and the Beis Din’s instruction to mete out a specific punishment to those who violate this prohibition is counted as a separate mitzvah. This understanding of the Mitzvos creates a list of 71 Mitzvos of the Torah that apply to the Beis Din.

As mentioned above, the Rambam disputes this approach and counts simply five Mitzvos for the Beis Din to fulfill, one for each of the four types of capital punishment Beis Din carries out, and one for malkus, lashes.

Other Lists

Among those who did not follow the Rambam fully, the one closest to the Rambam’s count of the 613 Mitzvos was Rav Moshe of Coucy, one of the Baalei Tosafos, whose magnum opus, the Sefer HaMitzvos HaGadol (often abbreviated to Smag) is a compendium of all the halachic conclusions of the Gemara, with a full analysis of the author’s decision, organized according to the list of the 613 Mitzvos. Although the book is not commonly studied today, and it is never used as the final halachic decision, at one time it was the major decisor of halachah for Ashkenazic Jewry.

What is interesting is that although he also organized the mitzvos in a logical fashion, similar to the approach of the Rambam, his list is in a very different order from that of the Rambam. Nevertheless, his count is so similar to the Rambam that in his list of 248 positive mitzvos, he agrees with the Rambam on 245 of them.

His extra three, which the Rambam does not count, include:

To accept Hashem’s judgment on anything that happens. Whereas the Smag counts this as one of the 613 Mitzvos, deriving it from a pasuk, the Rambam does not count this as one of the 613 Mitzvos.

The Smag counts one of the 613 mitzvos — calculating seasons and the heavenly bodies to know how to determine the Jewish calendar. The Rambam mentions in his second rule that one should not count this as a separate mitzvah, because it is derived from a drasha. The Smag does not accept this rule.

The Third Smag Addition:

The Smag counts as a mitzvah: To distance oneself from falsehood. I admit to having no idea why the Rambam does not count this as a mitzvah. He includes all the laws of the mitzvah under the mitzvas lo saaseh of “Do not bear a false story,” a lo saaseh that includes the laws of saying loshon hora. However, as we mentioned earlier, the Rambam contends that one counts overlapping mitzvos aseh and lo saaseh separately, so why does he omit the count of this mitzvah?

In conclusion, we have seen that much halachic literature is devoted to counting and understanding the various counts of the the 613 Mitzvos. Some people have the practice of reviewing the mitzvos that are included in the week’s Torah reading at the Shabbos table, a minhag that is not only praiseworthy, but also familiarizes us with all the 613 Mitzvos.

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: This week’s haftarah foretells how, soon in the period of Moshiach, the nations of the earth will follow the Divine light shining on the Jewish people and bring their finest flocks to His altar. No doubt, the sheer quantity of all this livestock available in Yerushalayim will afford the Jewish people the finest choices of meat available for their tables.

Also today it is certainly ideal to have a steady supply of kosher meat with all possible hiddurim. However, in some circumstances this is not always feasible. 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 around Rosh Hashanah and on occasion it was still snowing in May. On many occasions, 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 call this weather “whiteout” — referring not to mistake correction fluid, but to the zero visibility created by 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, even 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 precipitously 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, we rinse the meat thoroughly in order 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 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. Accepted practice is that we sprinkle a small amount of salt on the liver immediately prior to broiling it (Rama, Yoreh Deah 73:5).

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

Although this explains why one must salt 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 felt 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 tastes.

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 permitted this only under extenuating circumstances (Toras Chatos, quoted by Shach 69:53). On the other hand, some authorities ruled that 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 only helps 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.

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 the seventy-two hours have elapsed, and consider this washing as a renewal of the seventy-two hours. Thus, this meat is only permitted if it was washed within seventy-two hours of its shechitah or previous washing. If the meat was washed thoroughly, it is now ‘good’ for another 72 hours. If one is unable to kasher it by then, one can rewash it again to further extend its 72 hours. However, most authorities require that the meat be thoroughly wetted with a high-power hose so that the meat becomes moist even inside. This is unlike cases I have seen where someone sprays a light mist over the meat and assumes that the meat is ‘washed,’ or often simply takes a wet rag and wipes 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 wood of 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 answer her question. “The sign in the butcher stating that they sell washed meat means that they sell meat that was not kashered until 72 hours after its 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 my anecdote.

MOTZA’EI SHABBOS

By Motza’ei Shabbos the entire region was in the grips 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 had.

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

“Well, Rabbi,” he exclaimed with the exhilaration Columbus’ 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 22^nd of January, at exactly 9:25 pm, I personally oversaw the successful washing of 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 Town of 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 lechatchila, but ruled that kashering this meat (by salting) 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. If one’s plans go awry, he should be aware that in extenuating circumstances, a rav may permit products that he would never allow in a normal situation.

Dei Machsoro: the requirement to provide all the needs of a poor person, including luxury items that he became accustomed to when he was in a better financial situation.

Takanas Usha: a rabbinic injunction that prohibits spending more than one-fifth of one’s property on tzedakah or on any other mitzvah, lest one become destitute as a result. According to some opinions, this takanah does not apply to someone who will not become destitute as a result.

Ani Bifanav: when I am aware of a poor person whose needs are not attended.

Ayn Ani Bifanav: when I am not currently aware of a poor person whose needs are not being attended to.

Maaser Kesafim: giving ten percent of one’s moneys to tzedakah. The poskim dispute whether one subtracts household expenses from one’s income before calculating maaser.

The concept of maaser is primarily in the case of ayn ani bifanav, when I fulfill it by putting aside this much money for tzedakah. In a case of ani bifanav I do not fulfill my mitzvah by giving him only ten percent.

A person who distributes maaser kesafim to the poor is blessed with a special guarantee of wealth. This bracha occurs only if one is meticulous at calculating exactly a tenth of one’s income for tzedakah (Shu’t Avkas Rocheil #3). Furthermore, this bracha is fulfilled only if one gives this maaser money to the poor, but if one gives part of it to other causes, there is no guarantee that wealth will follow (see Shu’t Radbaz 3:441). Therefore, although one may use maaser kesafim to buy an aliyah, pay for a “mi’shebeirach,” purchase sefarim that will be used by the tzibur (Taz 249:1) or similar communal needs, it is preferred to earmark maaser kesafim for the needs of the poor (Rama 249:1). Donations to Torah institutions are considered distributions to the poor (Ahavas Chesed 2:19:2), as are hachnasas kallah expenses (to pay wedding and related expenses for a poor groom or bride).

The Chofetz Chayim recommends dividing one’s maaser as follows: two-thirds for distribution to the poor (including local chinuch and tzedakah institutions) and one-third for gemach loan funds that also benefit the poor (Ahavas Chesed 2:18). One should check with one’s local Rav whether this formula should be followed in light of local tzedakah needs.

Chomesh: giving twenty percent of one’s moneys to Tzedakah. This is the optimal level of fulfilling mitzvas tzedakah, whereas setting aside ten percent is considered only “midah beinonis,” an average person’s conduct. Someone who gives a chomesh to tzedakah should first calculate and set aside one tenth, and then a second tenth. This will guarantee that he receives the bracha of wealth mentioned above as well as a lot of extra reward. Furthermore, whereas the first maaser should preferably be given to the poor as mentioned above, the second maaser may be donated to other charitable causes. If possible, the first ten percent should be given to poor talmidei chachamim and Torah institutions (Ahavas Chesed 2:19:3).

Yissachar-Zevulun partnership: An arrangement whereby one person (Zevulun) assumes responsibility to support someone else (Yissachar) so that Yissachar can immerse himself completely in Torah without concern about making a living. In a true Yissachar-Zevulun partnership, Yissachar and Zevulun are complete partners, Yissachar receiving half of the profits of Zevulun’s business while Zevulun receives half of the reward of Yissachar’s learning.

Traveling Ani: One does not have to give a poor person who is traveling from place to place more than a minimum donation (Mishnah Peah 8:7; Shulchan Aruch, Yoreh Deah 250:3,4). However if he is a respected person, one should provide for him appropriately.

HOW MUCH TZEDAKAH SHOULD I BE GIVING?

Based on the above information, we are now ready to determine how much tzedakah I should be giving and to which causes.

Before starting to give regular amounts of tzedakah on an ongoing basis, one should declare that he is following this procedure bli neder, without accepting it as a vow. Also one should say that if one donates more than a chomesh of one’s income to tzedakah in one year, that the extra can be counted as part of the next year’s tzedakah calculation (Ahavas Chesed 2:18:2). The reason for the last condition is because some poskim otherwise require one to begin a new maaser calculation each year even if one gave more than his share the year before.

Preferably, a person should begin by calculating twenty percent of his net moneys for tzedakah purposes (Yerushalmi quoted by Tosafos Kesubos 50a). First, one calculates twenty percent or at least ten percent of one’s cash or cash-equivalent inventory. A newlywed couple should begin with their wedding presents; other people should begin with their accrued savings (assuming that they have not yet given tzedakah). If the couple intends to be in kollel, they should ask a rav whether they should distribute this money to tzedakah or whether they may keep it for their own kollel needs (see Rama, Yoreh Deah 251:3; Shu’t Igros Moshe, Yoreh Deah 2:112).

The Chofetz Chayim suggests that someone who finds it difficult to give away ten percent of his principle should instead set it up as a loan fund (gmach) from which he himself is permitted to borrow if necessary (Ahavas Chesed 2:18).

As mentioned above, the poskim dispute whether one subtracts family living expenses from one’s income before making these tzedakah calculations. Ask your rav for his opinion.

This, in short, is how maaser is calculated. Whenever giving tzedakah, one should do so with a happy countenance and make the poor person feel good (Shulchan Aruch 249:3).

As mentioned last week, someone who has a secure and adequate income may give more than a tenth or a fifth to tzedakah. One is also permitted to give more than twenty percent of one’s income to support Torah study (yeshivos, kollelim, chadorim and talmidei chachamim).
HOW DO I PRIORITIZE MY TZEDAKAH DISTRIBUTION?

FAMILY FIRST

Family comes first. Someone who has destitute relatives or family members studying in yeshiva or kollel, should give them top priority. This includes supporting one’s sons in yeshiva and kollel (Shulchan Aruch, Yoreh Deah 251:3; see also Pischei Tshuvah 249:2).

Someone who cannot meet the financial needs of his own family should spend all his tzedakah funds on their needs (Rama, Yoreh Deah 251:3 and Gra ad loc.).

Community tzedakah funds should not be used to support someone as long as there are family members who can be leaned on for support (Shulchan Aruch, Yoreh Deah 251:4).

CAN I PAY TUITION FROM MAASER FUNDS?

Rav Moshe Feinstein ruled that one should not pay tuition for sons and daughters in elementary school and high school from maaser funds. However, someone who refrains from taking a tuition reduction for which he is eligible may pay the difference from maaser (Shu’t Igros Moshe, Yoreh Deah 2:113; also see Ahavas Chesed 2:19:2). If paying tuition without resorting to maaser funds creates hardship, one should ask a shaylah. Yeshiva gedolah tuition and expenses may be paid from maaser.

HOMETOWN ADVANTAGE

Tzedakah moneys should be distributed locally rather than sent out-of-town (Gemara Bava Metzia 71a). Thus, after meeting one’s family obligations, one should distribute the majority of one’s remaining tzedakah to local community needs. One should make sure to set aside enough money to give a small contribution to each person who comes to the door for a legitimate cause.

When there are limited resources, support of talmidei chachamim precedes non-talmidei chachamim (Shulchan Aruch, Yoreh Deah 251:9). However, supporting local poor people precedes giving to out-of-town talmidei chachamim (Pischei Tshuvah 251:3).

Many poskim contend that out-of-town yeshivos that teach students from one’s city should not be treated as an out-of-town institution since they are educating local children.

I once heard an insightful story about the Chofetz Chayim from my Rosh Yeshivah, Rav Yaakov Ruderman, zt”l. When the Chofetz Chayim was in Vilna, he noticed many poor people from Brisk who had traveled to Vilna for financial help, and when he was in Brisk he noticed poor people there from Vilna. Surprised that the poor were traveling out-of-town for tzedakah, the Chofetz Chayim explained, “The Yetzer Hara tries very hard to stop Jews from keeping mitzvos. However, when it comes to giving tzedakah he has no success, since Jews are such merciful people that they always give. Instead the yetzer hara gets them to fulfill the mitzvah incorrectly. In this case, each city did not fulfill the mitzvah correctly since it did not provide sufficiently for its own poor, thus forcing them to travel for support.”

ERETZ YISROEL VERSUS CHUTZ LA’ARETZ

When distributing tzedakah funds to out-of-town people, those who live in Eretz Yisroel should be given more than those from Chutz La’Aretz (Shulchan Aruch, Yoreh Deah 251:3; see Shach).

LIMITED RESOURCES

One should always give precedence to people who need food over people who need clothing (Gemara Bava Basra 9a; Shulchan Aruch, Yoreh Deah 251:7). Life-threatening emergency situations should be prioritized. In most instances, one should prioritize to provide tzedakah to a needy woman ahead of a man.

IF I HAVE USED UP MY CHOMESH FUNDS…

One should never turn away a poor person empty-handed. If one has no more tzedakah to distribute, give the poor person a token donation “borrowed” from future maaser calculations (see Aruch HaShulchan 249:7) and make extra effort to boost the spirits of the poor person After all, it is very embarrassing to ask for financial help, and more uncomfortable to receive only a token gift in response.

If someone has already distributed his tzedakah requirements, he is not required to answer mail solicitations. (Nevertheless, I personally try to make a token contribution in order to participate, at least minimally, with people involved in a mitzvah [see Mishnah Makos 5b].)

TURNED DOWN

Question: I tell a solicitor at my door that I cannot give more than ten dollars to his worthy cause, and he refuses to accept it. Did I fulfill the mitzvah of tzedakah? Am I required to give him more?

Answer: Assuming that one has faithfully fulfilled the guidelines presented above, he is not required to give more if the solicitor refuses the donation. However, one has not fulfilled the mitzvah of tzedakah since the donation was not accepted (Shu’t Rashba #18; see also Derech Emunah, Hilchos Matanos Aniyim 7:1 in Biyur Halacha; cf. Beis Hillel, Yoreh Deah 248).

THE NEGLIGENT POOR

Question: Am I responsible to help someone who became poor by squandering all his money?

Answer: Rav Moshe Feinstein rules that I am, since he cannot afford essentials at this juncture (Shu’t Igros Moshe, Yoreh Deah 4:37:3).

However, the mitzvah of tzedakah does not require us to make someone wealthy (Gemara Kesubos 67b) by providing him with a lifestyle greater than what he is accustomed to. This reminds me of a family I knew who consistently spent beyond their means and always accumulated debts that they could not repay. I asked a shaylah whether there was a mitzvah of tzedakah to help them. I received a psak that although it would be a chesed to help them, it would not be considered tzedakah. (Incidentally, it is absolutely forbidden to borrow money if one cannot repay it.)

LAST WEEK’S SHAYLOS

I now return to the three shaylos that I raised in the previous article.

Question: There is a knock on my door, and I find myself face-to-face with a stranger holding a letter from the local Vaad HaTzedakah. The letter testifies that he needs surgery but has no medical insurance to pay for it. How much should I give him?

Answer: Although this person desperately needs surgery and medical attention is a high priority, I am not required to make a major contribution to assist him since he is collecting door-to-door for his needs. Of course, if one wishes one can give him a major contribution.

Question: The mailman’s daily delivery includes a solicitation from an internationally renowned yeshivah. How big a check should I place in the return envelope?

Answer: Based on the opinion that out-of-town yeshivos that educate local students have a right to claim that they are servicing a local tzedakah need, this yeshivah should have a right to collect ahead of an out-of-town institution. Thus, one should treat this as an important tzedakah, although the local Torah and tzedakah institutions come first.

Question: My neighbor has been out of work for a while. The family is embarrassed to ask for help, but I know that they are hurting terribly. I can help them discreetly without their discovering the source of the money. How much should I give them?

Answer: Assuming that there is no local tzedakah that can assist him, one should consider this person’s needs high priority. If there is a local tzedakah that will help him, alert the gabbayei tzedakah and figure out a method of helping the needy neighbor without jeopardizing his self-dignity.

The neighbor’s attempt to avoid receiving tzedakah funds is highly meritorious. Chazal say, “Someone who needs to receive tzedakah funds and refrains from accepting will not depart this world without having sufficient means to support others,” (Mishnah Peah 8:9). I know someone who strived to fulfill this concept. After losing his job, he lived very frugally and worked whatever he could find to keep his family from receiving tzedakah. He attests that Hashem supported his family by totally supernatural means. For example, one of his “gifts” from Heaven was a sizeable inheritance from a great-aunt whom he hardly knew!

TESTING HASHEM

It is generally prohibited to “test” Hashem as the Torah states, “Lo senasu es Hashem,” “Do not test Hashem,” (Devarim 6:16). One may not say, “I am performing this mitzvah so that Hashem will reward me by providing me with such-and-such (Sefer Yerayim #361; Chinuch Mitzvah 395, 424; Shu’t Radbaz #882).

However, there is one exception to this rule – one may give maaser kesafim expecting to be blessed with wealth as a reward (Gemara Taanis 9a, as explained by Shu’t Avkas Rocheil #3; Rama, Yoreh Deah 247:4; Sefer Hassidim #144; Ahavas Chesed 2:18. Cf. Shl”a and Yaavetz #3, quoted in Pischei Tshuvah 247:2).

The Gemara relates that after Reish Lakeish’s passing, Rabbi Yochanan encountered his nephew (who was Reish Lakeish’s son). Rabbi Yochanan asked his nephew what he had learned in cheder that day. The nephew replied, “Te’aser kedei shetisasher,” “Give maaser so that you get rich.”

“How do you know?” asked Rabbi Yochanan.

“Go test it,” answered the nephew, who then asked, “but one is not permitted to test Hashem?”

Rabbi Yochanan replied, “I heard from my rebbe, Rabbi Hoshiyah, that this is an exception because of the pasuk in Malachi (3:10), where Hashem begs us to test Him when giving maaser and see for oneself that He opens the windows of heaven and grants blessings until our lips weary of saying ‘Enough!’”

We see from this that it is permitted to declare that I am giving the correct amount of tzedakah and expect that Hashem will reward me with wealth. I know several people who personally attest that this bracha was fulfilled!

One situation involved a man I knew by the name of Michael. Michael was in very difficult financial and personal circumstances and came to ask me advice about giving tzedakah. I suggested that he set aside maaser and use the amount for his family’s own unmet needs. He asked me, “Isn’t this just a game? I am not distributing tzedakah moneys elsewhere anyway!”

I explained to him about the bracha of wealth for someone who sets aside maaser, and that he is following the Torah’s instructions for distributing tzedakah under his circumstances since his family comes first. Then I suggested that he accept, bli neder, to set aside chomesh (as explained above) from any new, unexpected income he receives. I asked him to keep me posted.

A few months later Michael returned. He indeed had put my suggestion into practice and reported that he had paid off all his extensive outstanding debt. Furthermore, his marriage, which had been suffering from the financial strain, was also much improved. “I have only one thing to attribute this success to — making sure that I pay my two maasers to tzedakah accurately. It works like a charm!”

May we all always be showered with brachos for contributing generously to tzedakah!

There is a knock on my door, and I am face-to-face with someone holding a letter from the local Vaad HaTzedakah. The letter introduces him as an individual in need of surgery but without medical insurance to pay for it. How much should I give him?

The mailman’s daily delivery brings a solicitation letter from an internationally reknown yeshivah. How large a check should I place in the return envelope?

My neighbor has been out of work for a while. The family is embarrassed to ask for help, but I know that they are hurting terribly. There is a discreet way of helping them whereby they will never find out the source of the money. How much should I give them?

These are shaylos we face daily. Do we know the halacha guidelines how much to give?

Before we begin to discuss the details of these halachos, we should reflect for a moment on the importance of the mitzvah of giving tzedakah. When we give tzedakah we emulate Hashem’s deeds, since He is constantly giving tzedakah. It is for this reason that “whoever has mercy on the poor, Hashem will have mercy on him” (Shulchan Aruch, Yoreh Deah 247:3; see Gemara Shabbos 151b). When a person listens to the supplication of the poor and gives him tzedakah, Hashem listens to him and provides him with parnasah (Rama Yoreh Deah 247:3). A person should always realize that as much rachmonus as he has on others, Hashem has on him. For this reason, tzedakah tears up any evil decree (Gemara Rosh Hashanah 16b).

In addition, giving tzedakah is rewarded monetarily, so one does not lose by giving tzedakah. As the Rambam teaches us, “No one ever became poor from giving tzedakah nor did anything bad or any harm come from it” (Rambam, Matanos Aniyim 10:2; Shulchan Aruch, Yoreh Deah 247:2). Someone who gives ten percent of his income to tzedakah will be rewarded with wealth. Yitzchak Avinu distributed ten percent of his profits to the poor and was rewarded that he received back one hundred times what he gave (Pirkei D’Rabbi Eliezer #33). How many investments do you know that pay back a 10,000 % return, which is what Yitzchok received!

Before we deal with specific halachic cases, we need to explain some of the concepts of the laws of tzedakah. Because of the complexities and importance of the issues involved, this week’s article will deal primarily with the principles of hilchos tzedakah, whereas next week’s article will focus on practical applications.

HOW MUCH ARE WE REQUIRED TO PROVIDE A NEEDY PERSON?

Once a person qualifies to receive tzedakah (the criteria by which this is determined will be explained IY”H next week), the Torah required us to provide him with his entire needs. What is included in his needs? It certainly includes his basic living necessities of food, adequate clothing, and a proper place to live. It also includes enabling him to get married, including setting up a household with all its necessities (hachnasas kallah). It also includes providing him with whatever he was used to when he was in a better financial situation.

DEI MACHSORO

People find surprising that we are required to provide someone needy with items that other people consider luxuries. This halacha is derived from the following pasuk: “When one of your brethren will be needy … do not harden your heart and do not close your hand from your needy brother. However, open your hand and give him as much as he lacks, whatever he is lacking” (Devarim 15:7,8). The pasuk closes with a very obvious redundancy (“as much as he lacks, whatever he is lacking”). This teaches that we are required to provide him with “as much as he lacks,” in Hebrew “dei machsoro,” even if other people would not be considered “lacking” if they were without this item. This is the source for the famous story where Hillel provided a pauper who came from a wealthy family with a servant to run before him since this was the accepted lifestyle he grew up with (Gemara Kesubos 76b). On the other hand, we are not required to make his wealthy.

What is the difference? If he was once a man of legitimate means and became used to a certain lifestyle, then to him it is poverty to manage on a lower financial level. But I have no responsibility to provide him with a lavish lifestyle that he was never accustomed to.

THE COMMUNITY TZEDAKAH FUND

In earlier generations, every Jewish community had a system of providing for the poor. The community appointed “gabbayei tzedakah” who were empowered to make weekly collections for the local tzedakah needs. These gabbayim evaluated how much each member of the community should give (according to his means), assessed him appropriately, and collected the moneys (Rambam, Matanos Aniyim 9:1; Shulchan Aruch, Yoreh Deah 156:1). Someone who felt the gabbayim had assessed him for more than he could afford could challenge the assessment in a beis din.

One can imagine that the gabbay’s job was not a pleasant one, yet it was absolutely necessary. For this reason, only the finest people were chosen for this job (see Gemara Pesachim 49b; Bava Basra 8b), and also for this reason Chazal say, “Gadol hame’aseh yosair min ha’oseh,” “the one causing others to give tzedakah is greater than the person giving the tzedakah” (Bava Basra 9a).

One of the unfortunate results of being in our galus is that we no longer can enforce the authority of the gabbayei tzedakah. For this reason, tzedakah organizations are dependent on voluntary contributions. The unfortunate result of this situation is that the community’s tzedakah’s needs are never met adequately, and the needy are almost never provided with “dei machsoro.” Thus, those in charge of distributing tzedakah funds are often placed in the unenviable position of having to decide how much to give each individual. Deciding tzedakah priorities with limited resources is a lengthy halacha discussion.

It should be noted that the gabbayei tzedakah were primarily responsible to provide for local tzedakah needs. If someone came from out-of-town requesting tzedakah help, he was provided with only a small contribution (Mishnah Peah 8:7; Shulchan Aruch Yoreh Deah 250:4 and Shach).

IS DEI MACHSORO A COMMUNITY RESPONSIBILITY OR AN INDIVIDUAL’S?

Many poskim contend that dei machsoro is primarily the responsibility of the community’s tzedakah fund (Rama 250:1). Others disagree, contending that the individual still has a responsibility to take care of dei machsoro of the needy (Rambam; Bach). However, when the community is not providing dei machsoro, all agree that the individual is responsible for all the poor person’s needs if he can (Rama). Therefore, if a needy person requests financial help, and I have the financial means to provide whatever he needs, I am required to. (However, if the poor person is soliciting door-to-door, I do not have to give more than a minimal donation, as will be explained later.) Some poskim rule that if providing dei machsoro is more than twenty percent of my net earnings, I am not obligated to provide all his needs, but only twenty percent of my earnings (Rambam, Peirush Hamishnayos Peah 1:1). I will explain shortly how one calculates “earnings.”

“ANI BIFANAV”

Most of the above discussion is describing a case referred to by the poskim as “ani bifanav,” literally, “a poor person is before him.” This means that I am aware that there are poor people whose needs are not fully provided. In our day, we are always in a situation of “ani bifanav,” since we always know of tzedakah organizations that try to provide for the needy but do not have sufficient funding to provide all their needs. However in earlier generations, people did not always have contact with someone who was not provided for. This is referred to as “ayn ani bifanav,” there is no poor person before him. In such a situation, one should still set aside money for distribution to tzedakah.

HOW MUCH SHOULD ONE SET ASIDE IN A CASE OF AYN ANI BIFANAV?

Rambam and Shulchan Aruch rule that one should preferably set aside twenty percent for tzedakah, and that a person who is “midah beinonis,” neither miserly nor overly generous, sets aside ten percent.

SETTING UP A SYSTEM TO GIVE MAASER

The Chofetz Chayim (Ahavas Chesed 2:18) suggests setting up the following system to guarantee that one gives ten or twenty percent of one’s income to tzedakah. Although it involves a bit of bookkeeping, it is definitely worthwhile.

Because of reasons beyond the scope of this article, it is a good idea to state that one is following this practice bli neder. Chofetz Chayim also suggests making a condition that he is entitled to estimate expenses. We will soon see why he makes the second condition.

Whenever one receives income, he calculates what expenses were incurred in earning this money and writes down the amount in his income ledger. In a separate column in his ledger, he subtracts his household expenses.

There is a dispute among poskim whether household expenses can be deducted from income before one calculates maaser. Some poskim rule that one may deduct household expenses from income and only needs to calculate maaser on the net amount that is left (Shu’t Avkas Rocheil #3; Ahavas Chesed 2:18). Others disagree (Aruch HaShulchan 249:7).

In a separate place in the ledger, he calculates all tzedakahs donated, even small amounts placed in a pushkah or at the door. He should certainly include ongoing tzedakah responsibilities, donations to local institutions and tzedakahs.

Periodically make a cheshbon to see whether you gave more or less than maaser. At that time, if one has given less than maaser, put aside the extra money for maaser purposes. In the interim, he may borrow the money for his own needs (Ahavas Chesed 2:18:1).

A BRACHA

Chazal tell us that someone who sets aside a tenth of his income for tzedakah is rewarded with a bracha of wealth. The Gemara even states that one is permitted to test Hashem to see that this bracha is fulfilled, something that is otherwise strictly forbidden (Gemara Taanis 9a). We will discuss next week IY”H how one “tests” Hashem.

IS IT TRUE THAT ONE MAY NOT GIVE OVER A CERTAIN AMOUNT TO TZEDAKAH?

After the destruction of the Second Beis HaMikdash, the Sanhedrin relocated several times and was once situated in a town name Usha. While in Usha, the Sanhedrin made several important takanos (permanent rulings). One of these takanos forbade a person from distributing more than twenty percent of his property to tzedakah lest he himself become needy (Gemara Kesubos 50a). This ruling is referred to as the “Takanas Usha.”

[The Chofetz Chayim (Ahavas Chesed 2:20:5) points out this takanah implies that one should never spend more that twenty percent of one’s savings on any item. (Presumably, one’s residence is an exception.) If Chazal ruled that one may not spend more than twenty percent of one’s property for tzedakah, one certainly should not spend this much for any other purpose. Furthermore, one should be careful to avoid purchasing luxury items, since it is very to become accustomed to an expensive lifestyle. Unfortunately, this sometimes results in having difficulty purchasing the necessities of life, as we often see happen.]

A superficial understanding of the Takanas Usha would lead one to strange (and inaccurate) conclusions. Reading the Takanah literally, it would seem that even a wealthy individual may not give more than one-fifth of his property to tzedakah because he may become a tzedakah case himself. Why should this be so? If he has considerable savings, perhaps so much that he could not figure out how to spend all this money in a lifetime, yet is he not permitted to give away more than twenty percent of what he owns? Surely, this could not be what was intended by the Takanas Usha.

The Chofetz Chayim (Ahavas Chesed 2:20:1,3) explains that this is a misunderstanding of the Takanas Usha. Since the reason for the Takanah was to make sure that someone does not become destitute, it applies only to someone whose income does not provide generously for his family. Someone who has a job or business that provides adequately for his family is permitted to give everything above his needs to tzedakah even if it is more than twenty percent of his income or his holdings.

The following story bears out this ruling. In the days of King Munbaz (one of the Chashmonayim kings) there was a drought, and he distributed the entire royal treasury, accumulated over several generations, to the poor. His family members protested, saying that his predecessors had all increased the wealth of the monarchy, and King Munbaz was disbursing it. Munbaz responded, “My ancestors stored below, and I stored above. They stored their wealth in a place where it could be stolen and I stored in a place from where it cannot be stolen. They stored items that do not reproduce and I stored items that produce profits. They stored money and I stored lives. They stored for others, and I stored for myself” (Gemara Bava Basra 11a). Thus we see that it is permitted for someone wealthy to give away more than twenty percent of his income for tzedakah needs.

There are a few other instances when it is permitted to give more than twenty percent to tzedakah. As mentioned above, one case is where someone’s dei machsoro is greater than twenty percent of my income (Rambam, Matanos Aniyim 7:5; Shulchan Aruch, Yoreh Deah 250:4; Ahavas Chesed 2:19). This is assuming that I can provide dei machsoro without being hard-pressed to take care of my family’s needs. If paying the poor person’s needs will make me hard-pressed to provide for my family, I am not required to pay “dei machsoro.”

YISSACHAR-ZEVULUN PARTNERSHIP

Another case where I am permitted to give away more than twenty percent of my income is if I commit myself to a Yissachar-Zevulun partnership. This means that I commit myself to support someone so that he can learn Torah.

The Tribe of Zevulun provided for all of Yissachar’s financial needs and they become partners. Zevulun provided half his income to Yissachar, and Zevulun received half the reward. In a true Yissachar-Zevulun partnership, the person learning Torah is provided half the profits of the business, and the businessman is provided with half the reward in Olam Haba for the learning (Midrash Rabbah Bamidbar 13:17; Shach Yoreh Deah 246:2). This can be done whether or not one has a business. Thus, the Zevulun partner commits himself to provide far more than twenty percent of his disposable income to support the learning of Yissachar.

The Midrash declares, “Why did Zevulun merit to be the third tribe to offer korbanos at the dedication the mishkan? Because they treated the Torah dearly and spent money lavishly on Yissachar, thus enabling Yissachar to be totally devoted to learning.” As a result, in the course of time, Yissachar produced two hundred heads of the Sanhedrin, and Zevulun was given the credit (Midrash Rabbah, Bamidbar 13:17).

Anytime someone provides money to enable others to learn Torah he receives tremendous reward for the support of Torah learning. The unique feature of a Yissachar-Zevulun relationship is that the profits for the business are also divided equally. However, even if someone is not involved in a formal Yissachar-Zevulun relationship, he may donate over twenty percent of his income to Yeshivos, Chadarim, Kollelim, or talmidei chachamim (Ahavas Chesed 2:20:4).

PIKUACH NEFASHOS

If someone is collecting money for a pikuach nefashos situation, the Takanas Usha does not apply and one may contribute over twenty percent (Aruch HaShulchan 249:5).

OTHER EXCEPTIONS

A person who is terminally ill is permitted to give away tzedakah money without being limited by the Takanas Usha. The Gemara tells us that Mar Ukva, who was known as a big baal tzedakah, knew that he was terminally ill. He asked that he be brought his tzedakah calculations, which amounted to the fantastic sum of 7000 dinarim. His response was “such a small amount prepared for such a long way” and gave away half of what he had left. The Gemara asks, how was he permitted to give away so much to tzedakah, one is not permitted to give away more than a fifth of one’s property to tzedakah? The Gemara answers that the Takanas Usha was established so that one not become needy later in life. However, to give away large sums of money immediately prior to one’s demise is permitted (Gemara Kesubos 67b; Rama, Yoreh Deah 249:1). For this reason, a person is permitted to give away in his will a large percentage of his property to tzedakah. In a previous article we discussed how one does this in a way that is halachically effective.

I HAVE EXCEEDED MY LIMIT

What should I do if my family’s responsibilities are great, and I simply cannot afford to give someone soliciting me significant moneys. I should never turn someone away empty handed. Even if I am not obligated to give him more because I have already exceeded my limit, I should still give him a token contribution. If I have absolutely nothing to give him, then I should make certain to leave him with a positive feeling.

If I am solicited for a donation that is beyond my means, I should tell the solicitor how badly I feel that I cannot give him an appropriate amount, but try to make him feel good and then give him a very small contribution (Yoreh Deah 249:4).

I will continue with the practical applications of tzedakah based on these principles.

Question #1: A CANDID QUESTION!

Chayim calls me on the phone:

“Prior to our marriage, I was taught that one may open cans on Shabbos, provided one does not reuse the can, whereas my wife was taught that this is strictly forbidden. Since I was taught by someone very knowledgeable and observant, there is something inconsistent here that I would like to understand.”

Question #2: DON’T PULL THE RING!

“I was eating at someone’s house for Shabbos where they served soda in cans and opened them. I thought that this desecrates Shabbos, and was uncertain whether I could trust their kashrus. Could I?”

Answer:

Analyzing the laws of Shabbos properly is a very enriching experience. In this article, I will touch on some aspects of the following melachos germane to the issues involved:

(1) Boneh, Construction

(2) Soseir, Destruction

(3) Makeh Bepatish, literally, striking with a hammer

You just Ruined my Shabbos!

We also need to explain an important principle of the Shabbos laws called mekalkeil – literally, ruining. In general, a melachah activity is prohibited min haTorah only when the direct results are beneficial. An act whose direct result is destructive is not prohibited min haTorah but only miderabbanan. For example, digging a hole in the ground when one needs the earth but is not interested in the hole is a destructive activity and therefore prohibited only miderabbanan. Notwithstanding the need to acquire dirt, the dug hole that results is not a positive development but a negative one. This renders the burrowing mekalkeil and relegates it to a rabbinically prohibited activity. However, digging a hole to plant or to create a posthole is a positive benefit and therefore prohibited min haTorah.

In a similar vein, smashing a barrel to obtain its contents is prohibited only miderabbanan notwithstanding the need to obtain the food inside, since the smashed barrel is a negative result.

Boneh

The Torah violation of Boneh includes performing any type of home repair or enhancement, even only a minor repair (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. Halachah). Similarly, one may not smooth the dirt floor of a house because this enhances the “structure” (Shabbos 73b).

Constructing Movable Items

Does the melachah of Boneh apply only to items connected to the ground or does it also apply to the construction of implements and other movable items?

My desktop dictionary defines “construct” as “to build or form by putting together parts.” Clearly, in English “construct” includes manufacturing implements just as it includes building on the ground. Do the laws of Shabbos similarly recognize that assembling implements violates this melachah?

The Gemara (Beitzah 10a) cites a debate regarding this question. In halachic conclusion, we find the following basic approaches:

(1) The melachah of Boneh includes only building on the ground and does not include movable items (Rashi, Shabbos 47a s.v. Chayov; Beitzah 11b s.v. De’ein).

(2) Major construction of small movable items is prohibited min haTorah, but minor improvement is not (Tosafos, Shabbos 74b and 102b). What is considered “major construction”? Assembling it in a way that involves strength and skill constitutes Boneh. Therefore, manufacturing implements is prohibited min haTorah since this involves both strength and skill to do the job properly, whereas making a minor repair to an implement is not included under Boneh.

Large = Connected

According to many authorities, there is another factor to consider: the size of the movable item (Rashi, Eruvin 35a s.v. Umasnisin). In their opinion, one may not perform even a minor repair or enhancement to a utensil so large that one does not usually move it when it is full to capacity. Thus, even a small repair to a refrigerator or a bookcase is prohibited min haTorah according to this opinion, since an item this large is halachically equivalent to something attached to the ground. For the balance of this article, I will refer to this sort of an appliance as a large utensil and to other items as a small utensil or implement.

Soseir

Soseir, demolishing or razing is also one of the 39 melachos, since the Jewish people disassembled the Mishkan whenever they moved it from place to place (Shabbos 31b).

Thus, removing something from a structure, such as removing a nail from a wall, or lifting a window or door off its hinges, is prohibited on Shabbos.

Destructive is Constructive?

Many acts of Soseir ruin something, and according to the rule of mekalkeil mentioned above, are prohibited only miderabbanan. Of course, this leads us to ask:

How can Soseir be prohibited min haTorah as one of the 39 melachos; is not demolishing always a destructive act? The answer is that Soseir is prohibited min haTorah when the destruction is constructive, despite the apparent contradiction in terms. The disassembly of the Mishkan was an act of demolition, yet it was constructive, since Hashem wanted the Mishkan (and the Jewish people) to move to a new location. Similarly, demolition of a building is prohibited min haTorah if the ultimate results are beneficial, such as razing part of a building in order to renovate it, or razing a building in order to build anew on the site. In such cases, the demolition provides an immediate benefit, since it clears the site for the new construction.

In cases where there are no immediate benefits to the demolition, it is still prohibited miderabbanan. Thus, wrecking a house to save someone trapped inside does not involve a Torah prohibition of Soseir since the act is itself destructive. (The activity is, of course, permitted in any case because of the life-threatening situation involved.)

The authorities dispute whether someone who destroys something out of anger violates Shabbos min haTorah or only miderabbanan. According to most Rishonim, this incurs only a rabbinic desecration of Shabbos since there is no positive benefit from the destruction (Pri Megadim 314:11 in Eishel Avraham). Of course, this act is prohibited for a variety of reasons, including bal tashchis (unnecessary destruction) and damaging one’s character development (Shabbos 105b). There is a minority opinion of the Rambam, who holds that wrecking something because you are angry incurs a Shabbos violation min haTorah. He rules that performing an act that makes its perpetrator feel better incurs a Torah violation and is not considered mekalkeil, notwithstanding that the act is extremely damaging both to the object of his wrath and to himself.

Does Soseir apply to Portable Implements?

Having established that Soseir is prohibited min haTorah only when it creates a direct positive result, we now want to understand whether destroying a vessel is included altogether under the melachah of Soseir. Note that I earlier discussed whether the melachah of Boneh applies only to items connected to the ground or whether it also applies to the construction of movable items. I noted that the Gemara debates this issue and that the Rishonim provide the following conclusions:

1. Some contend that the melachah of Boneh includes only building on the ground.

2. Others contend that major construction of small movable items is prohibited min haTorah, but a minor improvement is not.

3. Many authorities contend that this previous dispute refers only to small, easy to move implements, but that a large implement is definitely included min haTorah within the melachah of Boneh even to perform a minor repair or enhancement.

May I Destroy Movable Things?

How does this dispute affect the melachah of Soseir?

Soseir is the opposite of Boneh, meaning that if constructing an item constitutes Boneh, destroying it is Soseir. As a result, Soseir applies when one destroys an item whose construction would involve Boneh.

Makeh Bepatish

Before we analyze the Gemara texts that impact on our original questions, we still need to discuss one other prohibition: The melachah of Makeh Bepatish, which includes a general prohibition of completing items, such as smoothing a surface to finish an item. One aspect of this melachah is that it prohibits making a nice opening in a vessel, such as boring an outlet hole in a storage drum (Shabbos 146a; Rambam, Hilchos Shabbos 10:16). The Gemara teaches that it is prohibited min haTorah to make an opening that is to be used in both directions, whereas making an opening to be used only in one direction is prohibited miderabbanan. As an example of the first type of opening, the Gemara mentions an opening made in a chicken coop, which allows ventilation of its fumes and also allows light and\or air into the coop. Boring an outlet hole in a storage drum, the case I just mentioned above, is a classic example of something prohibited only miderabbanan, since the opening is intended only to remove the product but not to return it to the vessel. However, creating a new opening that is meant both to remove and return product incurs a Torah prohibition.

The Can Opener

With the principles we have learned, we can now examine the Talmudic sources that directly affect our original questions: May one open a can or other package on Shabbos to obtain its contents?

The Mishnah (Shabbos 146a) permits smashing open a barrel of figs on Shabbos to reach the food inside, provided one does not try to make a proper opening. As I noted earlier, attempting to make a proper opening certainly desecrates Shabbos. The question is whether one can simply break the barrel to reach its figs without attempting to make a nice opening. This Mishnah states that this is permitted.

However, in another discussion (Eruvin 34b) the Gemara rules that one cannot break open a container to obtain the food inside. How do we resolve this discrepancy between the two passages?

There are two major approaches to answer this question. Tosafos explains that the Mishnah that permits smashing to obtain food is not referring to a proper vessel. Since manufacturing a proper vessel, even a small one, is prohibited min haTorah, smashing it remains prohibited even when one is smashing the vessel to obtain food. Although I explained above that this act is mekalkeil and therefore not prohibited min haTorah, it is still prohibited miderabbanan. So how can the Mishnah permit smashing a barrel to obtain its contents?

Mustakis and Figs

Tosafos explains that the Mishnah is not referring to a regular barrel but one that was previously smashed and then feebly repaired by use of resin as glue. Reconstructing this type of container, known in Aramaic as a mustaki, would not violate a Torah violation of Boneh since it is not considered a proper vessel. As a result, smashing this barrel does not really violate Soseir and therefore one may do so in order to obtain the figs. However, the Gemara in Eruvin is dealing with a regular vessel and therefore forbids smashing the vessel to obtain the food inside. This approach of Tosafos is followed by the Shulchan Aruch (Orach Chayim 314:1), who concludes that one may smash open a mustaki to obtain food on Shabbos, but not a proper vessel.

Other authorities made a different differentiation between the two cases and reach a different halachic conclusion. In their opinion, the Mishnah in Shabbos is describing a small vessel (as defined above) and the Gemara in Eruvin a large one. They conclude that in order to enhance the pleasures of Shabbos, Chazal permitted smashing a small vessel to obtain food, but they prohibited smashing a large vessel. According to this approach, one may smash open any “small” container on Shabbos in order to obtain its contents.

How do we Rule?

The Mishnah Berurah concludes that it is prohibited to smash open even a small vessel to obtain food on Shabbos, following the conclusion of the Shulchan Aruch (Biyur Halachah 314:1). However, other authorities rule that one should not admonish those who smash vessels to obtain their contents since this common practice is based on a bona fide opinion (Aruch Hashulchan 314:8). All agree that one may not open the container in a way that creates a nice opening.

However, this approach does not satisfactorily explain those who permit opening cans on Shabbos, since neither of these opinions permits being mekalkeil to obtain food on Shabbos. They only dispute whether one should correct those who do smash small vessels. Is there any basis for those who allow the opening of cans on Shabbos?

Enter Chosalos

There is another basis to permit opening packaging on Shabbos. The Gemara mentions a halachah of chosalos, which are a type of basket made of palm branches (also known as lulavim) in which one places unripe dates to ripen or where one stores dried figs. The Gemara rules that one may rip these chosalos open on Shabbos. The question is why this is not considered destroying a vessel, which we concluded before is prohibited at least lechatchilah.

The Kolbo explains that chosalos are considered an artificial peel or shell around the dates or figs. The rationale is that the chosal is tafeil, secondary, to the food it contains and therefore it is not considered to be a vessel. Just as one may remove the natural peel or shell of a fruit on Shabbos and it is certainly not making or destroying a vessel, so one may remove an artificial “peel” or “shell” on Shabbos. Thus, anything included under the heading of chosalos may be opened on Shabbos. Can our contemporary packaging be compared to the law of chosalos? To answer this we need to ask another question: What is included in the definition of chosalos?

The Magen Avraham states that the permission to open chosalos does not permit the breaking of a regular vessel. Of course, we still have no clear definition of what defines a regular vessel and what defines chosalos.

Opening Cans

In a lengthy teshuvah on the subject, Rav Moshe Feinstein defines a chosal as any item that is not reused for any other product; everyone disposes of the chosal once its product is used up. A “regular” vessel is one that people reuse for another product. According to this definition of a chosal, even a tin can is a chosal if everyone disposes of the can after one finishing the original contents, and certainly if everyone disposes of the can immediately after opening it. Following this analysis, opening cans on Shabbos does not violate the melachos of Shabbos, since tin cans are not reused. (In Rav Moshe’s teshuvah on the subject, he implies that this halachah is true even if one returns the original product to the chosal.) Rav Moshe himself concludes at the end of his teshuvah that one should open these packages before Shabbos, explaining that people might misunderstand the laws and mistakenly open packaging that is prohibited. However, in the case of someone who made a sheva berachos or who invited guests and finds, to his embarrassment, that he does not have enough food to serve, he permits having a gentile open the cans and other containers on Shabbos (Shu”t Igros Moshe 1:122; for a similar approach, see Shu”t Chelkas Yaakov 3:8).

On the other hand, other authorities contend that any strong vessel is not considered a chosal.

We must note, that in another responsum, Rav Moshe rules that one may not open a milk or juice carton on Shabbos since this creates a spout (Shu’t Igros Moshe, Orach Chayim 4:78). Why is this not similar to opening a chosal, which Rav Moshe permits? It seems that although he permits opening a chosal on Shabbos, he does not permit opening it in a way that forms a nice opening. (By the way, we should note that according to what I have just explained, Rav Moshe would prohibit opening cans with pull up rings, which are now very common, since pulling the lid off now forms a nice opening.)

On the other hand…

However, the approach of other poskim to opening cans is totally different than Rav Moshe’s opinion. The Chazon Ish, for example, contends that opening a can is not considered smashing a vessel, but creating a vessel, and therefore violates a Torah prohibition of creating vessels (Orach Chayim 51:13).

Soda Cans

Rav Shelomoh Zalman Auerbach permits opening soda cans on Shabbos, applying the same basic logic as Rav Moshe (Shulchan Shelomoh 314:7:4). He makes no mention of the concerns voiced in Rav Moshe’s closing paragraphs (that people might err and exceed the perimeters of his leniency) and therefore concludes that even Jews may open them on Shabbos.

On the other hand, the Chazon Ish contends that opening any cans violates the Torah prohibition of making an opening. He explains two different reasons why opening cans is prohibited min haTorah:

1. The opening is meant to be used both ways: it allows air inside the can to break the vacuum and it allows the product out.

2. Opening a can is like creating a new vessel, since the closed can is useless, and opening it creates a serviceable vessel. Although he acknowledges that few people reuse cans, they can be reused, particularly by resourceful people (Orach Chayim 51:11).

Rav Shelomoh Zalman disputes the rationale that a soda can opening is considered “two-way”, since the entire purpose of allowing the air in is to enable the product to exit. He also does not consider the resultant opening a “nice opening” since it is simply a means of removing the product from the container.

In conclusion, the intent of this article is not to provide a definitive pesak regarding these issues – every person should ask their posek. Our goal is to give people a better understanding of the issues involved and an appreciation oftheir rav’s ruling, whatever it may be.

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

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

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

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

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

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

This verse teaches three different mitzvos:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WHAT IS A HETER ISKA?

“A heter iska is a halachically approved way of restructuring a loan or debt so that it becomes an investment instead of a loan. This presumes that the investor assumes some element of risk should the business fail, which is one basic difference between an investment and a loan. An investor could potentially lose money, whereas a borrower always remains responsible to pay.

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

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

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

THE EARLIEST HETER ISKA

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

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

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

“Actually, all the attempts at creating heter iska are attempts to find a balance whereby the investor is fairly secure that his assets are safe, and yet can generate profit.

PIKADON – INVESTING

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

GUARANTEEING THE INVESTMENT

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

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

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

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

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

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

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

“Could you explain why this is important?”

STANDARD ISKA – A SILENT PARTNERSHIP

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

RECEIVING PROFIT FROM THE LOAN

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

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

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

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

“Precisely,” I replied. “However, there is another way to structure the heter iska so that this is not a problem. This is by having the profit and loss percentages vary. This means that if the business profits, the managing partner makes a larger part of the profit than he loses if there is a loss. For example, in the original deal, let us assume that our silent and managing partners will divide the profits, but in case of loss, our manager is responsible to pay only $30,000. This means that Sweat borrowed only $30,000 and therefore owns only 30% of the business, which should entitle him to only 30% of the profits. The extra 20% of the profits he receives is his salary for managing the business. He is therefore being paid a percentage of Bucks’ profits for his efforts, similar to the way a money manager or financial consultant is often compensated by receiving a percentage of the profits on the funds he manages.

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

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

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

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

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

Question: I know the Torah teaches that we are to treat a kohen with honor, yet I always see people asking kohanim to do favors. Am I permitted to ask a kohen to do me a favor?

Answer:

You are asking a very excellent and interesting question. It is correct that a look at the early poskim implies that one should not ask a kohen to do him a favor, yet the prevalent custom is to be lenient. Let us explore the subject to see whether this practice is correct.

In Parshas Emor, after listing many specific mitzvohs that apply uniquely to the Kohen, the Torah states: “And you shall make him (the kohen) holy, because he offers the bread of your G-d. He shall be holy to you because I Hashem, who makes you holy, am Holy” (VaYikra 21:8). We are commanded by the Torah to treat a kohen differently since he is charged with bringing the offerings in the Beis HaMikdash (Gittin 59b; Rambam, Hilchos Klei HaMikdash 4:2).

There are both positive and negative aspects to this mitzvah. A kohen who violates his kedushah by marrying a divorcee or other woman prohibited to him should be separated from his prohibited wife. The Gemara states that “you shall make him holy,” even against the kohen’s will. Thus, when the Jewish community and its besdin have control over Jewish affairs, they bear the responsibility to force a kohen to divorce his wife under these circumstances (Yevamos 82b).

There is also the positive aspect of this mitzvah, which is to treat the kohen with honor. According to the Rambam, this responsibility is considered a mitzvah min hatorah (Sefer HaMitzvos Aseh 32; Hilchos Klei HaMikdash 4:2), whereas other rishonim contend that this aspect of the mitzvah is only midarabanan (Tosafos, Chullin 87a end of s.v. vichiyivu; Tur, Yoreh Deah 28; Bach ad loc.). Later poskim rule that the mitzvah to treat a kohen with respect is indeed min hatorah (see Magen Avraham 201:4 and Mishnah Berurah op. cit.).

How Should the Kohen be Honored?

The Gemara explains that this respect manifests itself in several ways: “The kohen should open first (liftoach rishon), he should bless first, and he should take a nice portion first” (Gittin 59b, Moed Katan 28b). Similarly, the Talmud Yerushalmi (Berachos 5:4) teaches that when a yisrael walks alongside a kohen, the kohen should be given the more honorary place, which is on the right.

What is intended by the Gemara when it states that “the kohen should open first”? Some commentaries explain that this means that the kohen should be the first speaker, whether in divrei torah or at a meeting (Rashi, Gittin 59b). Others explain it to mean that the kohen should receive the first aliyah when the Torah is read (Rambam, Hilchos Klei HaMikdash 4:2 and Rashi in Moed Katan 28b).

The kohen should make the brocha on the meal first (Rashi, Gittin 59b), make kiddush for everyone (Mishnah Berurah 201:12), and lead the benching (Rashi, Moed Katan 28b; Ran and other Rishonim, Nedarim 62b). If he is poor, he is entitled to choose the best portion of tzedokoh available or of the maaser given to the poor (Tosafos, Gittin 59b). According to some opinions, when dissolving a partnership, after dividing the item into two similar portions, the kohen should be offered the choice between the two portions (Rashi, Gittin 59b). However, the accepted approach is that this is not included in the mitzvah, and it is also not in the kohen’s best interest (Tosafos ad loc.). However, when a group of friends are together, they should offer the kohen to take the best portion.

Similarly, poskim rule that a kohen should be chosen ahead of a levi or a yisrael to be chazan (Pri Megadim, Eishel Avraham 53:14). Presumably, he should also be given preference for a position to be a Rav, Rosh Yeshiva, or Magid Shiur in a yeshiva if he is qualified for the position.

It should be noted that the kohen deserves special respect only when he is at least a peer of the yisrael in learning. However, if the yisrael is a Torah scholar and the kohen is not, the Torah scholar receives the greater honor.

There is one exception to this ruling. In order to establish peace and harmony in the Jewish community, the first aliyah to the Torah is always given to a kohen, even when there is a Torah scholar in attendance (Shulchan Aruch Orach Chayim 135:4). As far as other honors go, the Torah scholar should always be given honor ahead of the kohen. (It is interesting to note that, at the time of the Gemara, the gadol hador was given the first aliyah even if he was not a kohen.)

If the yisrael is a greater talmid chochom than the kohen, but the kohen is also a talmid chochom, some rule that one is required to give the kohen the greater honor (Shach, Yoreh Deah 246:14). Others rule that it is preferred to give the kohen the greater honor but it is not required (Rema, Orach Chayim 167:14 and Mishnah Berurah 201:12).

According to the Gemara, the kohen should be seated in a place of honor at the head of the table. The Gemara that teaches us this halacha is very instructive. “Rav Chama bar Chanina said: ‘How do we know that a choson sits at the head of the table, because the verse states: ‘kichoson yechahen pe’er, like a choson receives the glory of a kohen (Yeshaya 61:10)’. Just like the kohen sits at the head of the table, so to the choson sits at the head of the table” (Moed Katan 28b). Contemporary poskim contemplate why we do not follow this halacha in contemporary practice (Rav Sholom Shvadron in his footnotes to Daas Torah of Maharsham 201:2). Although our custom is to seat the choson in the most important place at the wedding and sheva berachos, we do not place the kohanim in seats that demonstrate their importance!

From the above discussion we see that one is required to treat a kohen with honor and respect, yet we have not discussed whether I can ask a kohen to do me a favor. Perhaps I can treat the kohen with honor and respect, and yet ask him to do things for me. However, the Talmud Yerushalmi states that it is forbidden to receive personal benefit from a kohen, just as it is forbidden to have personal benefit from the vessels of the Beis HaMikdash (Berachos 8:5). This Yerushalmi is quoted as halacha (Rema, Orach Chayim 128:44). Thus, it would seem that one may not use a kohen for any personal benefit just as one may not use the vessels of the Beis HaMikdash.

Nevertheless, this conclusion is not obvious. Many commentaries point out that there appears to be conflicting evidence to this Yerushalmi. Specifically, the Gemara Bavli refers to a Hebrew slave (eved ivri) who is a kohen. How could a kohen become a Hebrew slave if one is not permitted to have personal benefit from a kohen (Hagahos Maimonis, Hilchos Avadim 3:8)?

Several approaches are presented to resolve this difficulty. Some early poskim contend that there is no prohibition in having personal benefit from a kohen if he does not mind. In their opinion, a kohen may be mocheil on his honor (Mordechai, Gittin #461). However, many authorities rule explicitly that it is forbidden to use a kohen even if he is mocheil (Rambam, Sefer HaMitzvos Aseh #32; Smag, Mitzvas Aseh #83).

Other poskim explain that although it is forbidden to use a kohen without paying him, one is permitted to hire a kohen to work for you (Smag, Mitzvas Aseh # 83). According to this approach, it is prohibited to use a kohen only when the kohen receives no benefit from his work. In a situation where the kohen gains from his work, one may benefit from a kohen. Thus, the kohen is even permitted to sell himself as a slave since he gains material benefit from the arrangement.

This dispute, whether a kohen has the ability to be mocheil on his kovod, is further discussed by later poskim. Rema (128:44), Magen Avraham (ad loc.), and Pri Chodosh (in his commentary Mayim Chayim on Gemara Gittin 59b) rule that a kohen can be mocheil on his honor, whereas Taz (Orach Chayim 128:39) disagrees. However, Taz also accepts that the kohen can be mocheil when he has benefit from the arrangement, as in the case of the Hebrew servant.

Thus, as a practical halacha, according to the majority opinion, I am permitted to have a kohen do me a favor provided he is mocheil on his honor. According to the minority opinion it is permitted only if I pay him for his work.

There is another line of reasoning that can be used to permit using a kohen for a favor today. The reason why the Torah required giving a kohen honor is because he does the service in the Beis HaMikdash. Thus, he is considered like the vessels of the Beis HaMikdash, which also have sanctity. However, only a kohen who can prove the pedigree of his lineage may perform the service in the Beis HaMikdash. Such kohanim are called kohanim meyuchasim. Kohanim who cannot prove their lineage are called kohanei chazakah, kohanim because of traditional practice. These kohanim fulfill the roles of kohanim because they have a tradition and family practice to act and perform mitzvohs like a kohen does. However, they cannot prove that they are kohanim.

Since today’s kohanim are not meyuchasim, they would not be permitted to perform the service in the Beis HaMikdash. Thus, they do not have sanctity similar to the vessels of the Beis HaMikdash. Therefore, some poskim contend that one may have personal benefit from today’s kohanim (Mishneh LaMelech, Hilchos Avadim 3:8, quoting Yafeh Mareh).

Based on our discussion, we should raise the question why don’t we honor the kohen all the time? This question is raised by the Magen Avraham (201:4) who explains that the custom to be lenient is because our kohanim are not meyuchasim. However, he is clearly not comfortable with relying on this heter. Similarly, Mishneh Berurah (201:13) rules that one should not rely on this heter. On the contrary, one should go out of one’s way to show honor to a kohen.

In this context, the Mordechai records an interesting story (Gittin #461). Once a kohen washed Rabbeinu Tam’s hands.  A student of Rabbeinu Tam asked him how could he benefit from the kohen, when the Yerushalmi states that it is prohibited? Rabbeinu Tam responded that a kohen has kedushah only when he is wearing the vestments that the kohen wears in the Beis HaMikdash. The students present then asked Rabbeinu Tam, if his answer is accurate, why do we give the kohen the first aliyah even when he is not wearing the kohen’s vestments? Unfortunately, the Mordechai does not report what Rabbeinu Tam himself answered. The Mordechai does cite R’ Peter as explaining that a kohen can be moichel on his kovod.

A kohen who is blemished (A Baal Mum)

Does the mitzvah of treating a kohen with kedushah apply to a kohen who is blemished (a baal mum) and thus cannot perform the avodah in the Beis HaMikdash? One would think that only a kohen who can offer the “bread of Hashem” has this status. Nonetheless, we derive that the laws do apply to a kohen who is blemished (Toras Kohanim to VaYikra 21:8). Apparently, the other unique halachos of being a kohen are sufficient reason that he should be accorded honor.

Is There any Mitzvah to Give Honor to a kohen who is a Minor?

This matter is disputed by early poskim. Some poskim feel that since a child is not obligated to observe mitzvos and furthermore cannot perform the service in the Beis HaMikdash, that there is no requirement to give him honor. On the other hand, there are poskim who contend that the Torah wanted all of Aaron’s descendents to be treated with special honor, even a minor.

This dispute has very interesting and common ramifications. What happens if there is no adult kohen in shul, but there is a kohen who is a minor? If the mitzvah of vikidashto applies to a minor, then the kohen who is under bar mitzvah should be called to the Torah for the first aliyah! This is indeed the opinion of an early posek (Shu”t Maharit #145). However, the prevalent practice is that there is no mitzvah of vikidashto on a kohen who is under bar mitzvah since he cannot bring the korbanos in the Beis HaMikdash (Magen Avraham 282:6)

A Very Interesting Minhag and a Machlokes

A fascinating discussion about the mitzvah of calling the kohen for the first aliyah is found in the responsa of the Maharik  (#9). Apparently, there was a custom in his day (the fifteenth century) in many shullen in France and Germany that on Shabbos Breishis they would auction off the first aliyah in order to pay for certain community needs. This was considered a major demonstration of  kovod hatorah to demonstrate that people value the first aliyah of the year by paying a large sum of money for it. Maharik compares this practice to a custom we are more familiar with: The selling of Choson Torah on Simchas Torah for a large sum of money.

If a non-kohen bought the first aliyah of the year, the custom was that the kohanim would either daven in a different shul or they would walk outside the shul so that the donor could be called to the Torah for the aliyah.

In one congregation with this custom, one kohen refused to leave the shul and also refused to bid on the donation. Instead, he insisted that he be given the aliyah gratis. The members of the shul called upon the city government authorities to remove the

recalcitrant kohen from the premises so that they could call up the donor for the aliyah.

The issue was referred to the Maharik, as one of the greatest poskim of his generation. The Maharik ruled that the congregation is permitted to continue their practice of auctioning off this aliyah and calling the donor to the Torah, and they may ignore the presence of the recalcitrant kohen. Since this is their well-established minhag, and it was established to demonstrate kovod hatorah, in a case like this we rule that a minhag can override the halacha, specifically the requirement to call the kohen to the Torah as the first aliyah.

In the same tshuvah, Maharik mentions another related minhag that was well-accepted in his day. Apparently, during this period and place, most people fasted on bahav, the three days of fasting and saying selichos that take place during the months of MarCheshvan and Iyar. In addition, the custom on these fast days was to call up for an aliyah only people who were fasting, similar to the practice we have on our fast days. Maharik reports that if all the kohanim who were in shul were not fasting, the kohanim would exit the shul to allow them to call a non-kohen to the Torah who was fasting. He rules that this custom is halachically acceptable since it is a kovod hatorah that on a community-accepted fast to call to the Torah only people who are fasting.

Thus, we see from the Maharik’s responsum that although it is a mitzvah to honor the kohen, there is a greater mitzvah to safeguard the community’s minhag. In regard to the honor of the kohen, the conclusion of the Mishneh Berurah and other late poskim is that one should try to honor the kohen, following the literal interpretation of the statement of chazal.