A Layman’s Guide to Marriage ‎

Question #1:

“A friend’s son in Yeshiva in Israel got engaged to a local girl, and my friends were told that there will be a tena’im. I thought only chassidishe families do this.”

Question #2:

“I was told that I should not include quotations from pesukim on my daughter’s wedding invitation. Yet, I see that ‘everyone’ does! Could you please explain the halacha?”

Question #3:

“I wish someone could walk me through all the halachic steps that we need in planning our daughter’s wedding. I am afraid I’ll forget to take care of something.”

From the engagement to the wedding

Mazel tov!! Mazel tov!! Your daughter just became engaged to an amazing yeshivah bachur from a wonderful family. You are in seventh heaven!

Virtually everyone plans some type of formal celebration when his or her child becomes engaged. Some call it a “lechayim,” others a “vort,” still others a “tena’im,” and in Eretz Yisroel today it is usually called an “erusin.” Since these differences are not inherently halachic, I am going to note only one point about this part of the simcha: does one sign a tena’im shortly after announcing the engagement? In chassidishe circles, and, in Eretz Yisrael, even among “Israeli Litvishe” families, it is accepted that one finalizes the engagement by signing tena’im, which is an agreement between the two sets of parents as to what each will provide to their child before the wedding and to conduct the wedding before a certain agreed-upon date. The climax of the engagement celebration is when this document is signed, parts of it are read aloud, and the two mothers break a plate together. The halachic authorities discuss why we break a plate at a tena’im and a glass at the chupah (see Pri Megadim, Mishbetzos Zahav 560: 4; Keser Rosh, #114).

In “American,” non-chassidishe circles, these arrangements are more informal, and the two parties usually do not sign any formal tena’im. Some sign a type of a tena’im at the wedding, prior to the chupah.

Invitations

There are, actually, some halachos germane to invitations. One may not quote any pesukim in invitations and, according to most authorities, the lettering of an invitation should not use kesav ashuris, the Hebrew writing used for Sifrei Torah, Tefillin and Mezuzos (Shu”t Rav Pe’alim, Yoreh Deah 4:32). This is because kesav ashuris has sanctity and should not be used for mundane matters (Shu”t Radbaz 1:45; Rema, Yoreh Deah 284:2; Pischei Teshuvah, Yoreh Deah 283:3). We should note that the Kesav Sofer writes that his father, the Chasam Sofer, permitted using kesav ashuris in wedding invitations and did so himself, contending that, since making a wedding is a mitzvah, the invitation to the seudas mitzvah is not considered a mundane use. Nevertheless, the Kesav Sofer concludes that it is better not to use kesav ashuris for invitations (Shu”t Kesav Sofer, Even Ha’ezer #22 at end).

Shomrim

Why do the choson and kallah require shomrim? From what time do the choson and kallah require shomrim?

The Gemara says that three people require a shomer: an ill person, a choson and a kallah Berachos 54b). Although many people have the custom of providing shomrim from the ufruf Shabbos, technically the choson and kallah require shomrim only from the wedding through the week of sheva berachos. The prevalent practice is that this includes only when they leave their house. This means that during sheva berachos week, the choson may attend minyan only if someone escorts him from his house, although some hold that a choson can go to shul without a shomer (told to me in the name of Rav Moshe Feinstein).

It is common practice to provide them with shomrim on the day of the wedding also.

Things to bring to the wedding

The following can function as a useful checklist of items that should be brought to the wedding:

(1) Kesubah

From personal experience, I suggest bringing not only the kesubah one intends to use, but also several blank extra forms.

(2) Kittel

If the choson will be wearing a kittel under the chupah, remember to bring it.

(3) Candles and matches

Four candles for the shushbinin, who are the two couples that will escort the choson and kallah, and matches with which to light the candles. The matches are also useful in the creation of ashes that will be placed on the choson’s forehead before he walks to the chupah.

(4) Wine

Many deliberately bring a bottle of white wine, a position that I advocate, to avoid concerns of red wine staining a white wedding dress. (I am aware of some poskim who prefer that one use red wine at a chupah. However, I prefer white wine, since it spares the worry of a stained gown.)

(5) Berachos

Cards, or something similar, with all the berachos for the various honorees.

(6) Ring

The wedding ring. This should be a ring without a precious stone (Even Ha’ezer 31:2). Some rabbonim prefer that it have no design at all. It is important that the ring be the property of the choson. In other words, the choson must either purchase it with his own money, or whoever purchased it must give it to the choson as a gift and the choson must pick it up to acquire it. So, if the bride wants to use her late great-grandmother’s wedding ring, they should make sure that the current, rightful owner of that ring gives it to the choson, with no strings attached, prior to the wedding.

(7) Glass

A well-wrapped glass that will be broken. (Note that the Rema [Even Ha’ezer 65:3] states that the choson should break the glass that was used to hold the wine of the wedding beracha. Although I have seen this actually practiced, it is definitely not the common, contemporary custom.)

(8) Key

Make sure that someone has the key to the yichud room!

Wow!! We have actually gotten all the way to the wedding! What happens next?

The choson tish

If the tena’im were not performed earlier, some people make a tena’im now. If the tena’im will take place at the wedding, then one should also have a plate that one intends to break.

The kesubah is filled out and signed at the choson tish. (In Eretz Yisrael, many follow the practice of not signing the kesubah until the choson and kallah are under the chupah.)

At this point, we will introduce the mesader kiddushin, the talmid chacham who is honored with making certain that the halachic aspects of the wedding are performed correctly.

Kabalas kinyan

Following the instructions of the mesader kiddushin, the choson lifts up a pen, handkerchief, or other itemas a means of kinyan in the presence of two witnesses. By doing this, he assumes the financial responsibilities of a husband and future father.

Should we use the same witnesses?

There are two prevalent practices regarding the witnesses, usually dependent on the preference of the mesader kiddushin. The more common American practice is that each part of the ceremony — the signing of the kesubah, the kiddushin itself, and the yichud — are witnessed by different sets of witnesses, in order to honor more people. In Eretz Yisrael, the common practice is to have one set of witnesses for all the stages. The Tashbeitz (2:7) explains that once one honored someone with performing a mitzvah, we encourage that he perform the rest of the mitzvah (hamaschil bemitzvah omrim lo gemor). Other reasons for this custom are provided by the Eizer Mikodesh (end of Even Ha’ezer 42) and Rav Shelomoh Zalman Auerbach.

Signing of kesubah

After the choson makes the kabbalas kinyan, the witnesses carefully read through the kesubah and then sign it (Rema, Even Ha’ezer 66:1 and Choshen Mishpat 45:2). If they are attesting to something by signing, they must know what it is.

Choson signing kesubah

Many have the practice that the choson also signs the kesubah, beneath the witnesses’ signatures. This practice dates back to the times of the rishonim and demonstrates that the choson approves what the witnesses are signing (Rashba, Bava Basra 175; Eizer Mikodesh 66:1 s.v. hayah ta’us).

Bedeken

The choson, escorted by the two fathers and accompanied by the celebrants, now goes to badek the kallah, by pulling the veil over her head. At this point, the kallah’s father and perhaps others bless her. The celebrants then proceed to the chupah.

The Chupah

The chupah itself should, ideally, be open on all four sides (Eizer MiKodesh). This is reminiscent of the tent of Avraham Avinu and Sarah Imeinu, whose tent was accessible from all four directions of the globe, so as not to inconvenience any potential guests. We are conveying blessing upon the bride and groom that the house they build together be as filled with chesed as the house of Avraham and Sarah was.

Immediately prior to walking to the chupah, the mesader kiddushin places some ashes above the choson’s forehead. The ashes are placed where the choson wears his tefillin, and are immediately removed, and serve to remind the choson that even at this moment of tremendous joy, he should remember that our Beis Hamikdash lies in ruins. This, literally, fulfills the verse in Yeshayah (61:3), To place on the mourners of Zion and to give them splendor instead of ashes, where the Navi promises that in the future we will replace the ashes that currently remind us of the churban (Even Ha’ezer 65:3).

Chupah under the Stars

The prevalent Ashkenazic practice is that the chupah is conducted outdoors or under an open skylight, in order to provide a beracha for the marrying couple that their descendants be as numerous as the stars (Rema, Even Ha’ezer 61:1). However, if a couple prefers to hold their chupah under a roof, the mesader kiddushin should still perform the wedding ceremony for them, since there is no violation to perform the chupah this way (Shu”t Igros Moshe, Even Ha’ezer 1:93).

Jewelry at the Chupah

There is a common custom that the kallah removes all her jewelry before she goes to the chupah. Some explain that this custom is based on the Mishnah that after the churban of the Beis Hamikdash, Chazal decreed that the choson and kallah should no longer wear the crowns that they were accustomed to wearing before that time (Sotah 49a). Although removing jewelry may be associated with this idea, most authorities contend that this is only a custom borrowed from this idea, but is not required. If it were required, then wearing jewelry would be prohibited from the night before the wedding, until the end of sheva berachos (see Mishnah Berurah 560:17).

Accepted practice is to prohibit only silver, gold or jewelry of precious stones that are worn on the kallah’s head, and only at the chupah (Mishnah Berurah 560:17, quoting Pri Megadim). However, some authorities prohibit a kallah from wearing any silver or gold jewelry the entire sheva berachos week (Yam shel Shelomoh, Gittin 1:19).

Wearing a Kittel

The common practice among Eastern European Jews is that the choson wears a kittel at the chupah. The reason for wearing the kittel is tied closely to the wedding day as his personal day of atonement, and is to encourage the choson to do teshuvah on this day.

When does he put on the kittel? There are two common practices: some have the choson wear the kittel folded up under his suit jacket, whereas others have the kittel placed on top of his suit as soon as he stands under the chupah, and remove the kittel either immediately after the chupah or in the cheder yichud.

The accepted practice is that the shushbin places the kittel on the choson. His “dressing” the choson reinforces the idea that the wedding day is a day of teshuvah and atonement – it should remind the choson, when he puts on the kittel for the first time, of the day when he will be wearing his kittel for the last time (Kitzur Shulchan Aruch 147:4).

Who walks them down?

The choson and kallah are escorted by two couples, called the shushbinin, who are usually their parents. There was an old custom that the shushbinin should both be couples who are married in their first marriage (cited by Eizer Mikodesh 68:2, who says that he is uncertain of the origin of this custom). Some have a custom that a woman who is visibly pregnant should not serve as a shushbin (Shearim Hametzuyanim Bahalacha 147:12). Since these practices are custom and not halacha, when following them may create a dispute, shalom is more important.

There are two common practices as to who, specifically, escorts the choson and who escorts the kallah. Some have the custom that the choson is escorted by the two male shushbinin, and the kallah by the two female shushbinin, whereas others have each escorted by a couple. To decide what to do, I quote a well-known practice of Rav Yaakov Kamenetski, who at three of his children’s marriages had the shushbinin walk as couples and at the other three had the fathers escorting the choson and the mothers escorting the kallah. His rule: I did whatever the mechutan preferred.

Kallah on the Right

Based on a verse in Tehillim (45:10) that teaches that the place of honor for a princess is to be stationed on the right, the kallah stands to the right and the choson to the left.

Standing at the Chupah

In America, the guests usually sit throughout the chupah ceremony, whereas, in Eretz Yisrael, the standard practice is that everyone stands throughout the chupah. The latter practice, or, more specifically, that everyone stands while the sheva berachos are recited, is quoted in the name of the Zohar (see Shu”t Ha’elef Lecha Shelomoh, Even Ha’ezer #115).

Erusin and Nesuin

There are two stages to a Jewish wedding. The first stage is called kiddushin or erusin (not to be confused with the Modern Hebrew word erusin, which means “engagement”), and is focused on the choson giving the wedding ring to the kallah. The second step is called nesuin. In Talmudic times, these two stages were conducted separately – often as much as a year apart. After kiddushin, the couple is married, but do not yet live together.

Today, the two stages are conducted as one long ceremony.

Is the Kallah’s face covered?

The Rema (31:2) cites an old Ashkenazic custom that the kallah’s face is covered at her chupah. The Rema does not say how thick the veil is, although we find a dispute among later authorities about this. Some authorities object strongly to the kallah wearing a veil that is so thick that the witnesses cannot identify her (Mabit, quoted by Pischei Teshuvah 31:5). Others rule that it is not problematic for the veil to be this thick, and, therefore, in many places the custom is that the kallah wears a very thick veil.

The mesader kiddushin recites the beracha of borei pri hagafen on behalf of the choson and the kallah. They should have in mind to be included in his beracha and not to interrupt before they drink the wine (see Afikei Yam 2:2). According to some opinions Shu”t Noda Beyehuda, Even Ha’ezer #1), the choson should also have in mind to be included in the birchas erusin¸ but most contend that he is not required to recite this beracha (see Shu”t Har Tzvi, Orach Chayim #44, who quotes this from the Tevuos Shor, Rabbi Akiva Eiger, and several other authorities). The choson and kallah then sip from the cup. The most common practice is that the mesader kiddushin gives the choson to drink, and then hands the cup to the kallah’s mother, who gives her to drink. The choson and kallah need to drink only a small sip of the wine (Be’er Heiteiv, Even Ha’ezer 34:6; Amudei Apiryon page 71).

Yichud Eidim

On behalf of the choson, the mesader kiddushin appoints the two witnesses, and then asks the witnesses, within earshot of the kallah, whether the ring is worth a perutah, which is worth only a few cents. The reason for this strange conversation is so that the kallah agrees to be married, even if the ring is worth so little (Rema, Even Ha’ezer 31:2).

According to many authorities, the witnesses must see the choson place the ring on the kallah’s finger (Shu”t Harashba 1:780; Rema, Even Ha’ezer 42:4). Although most authorities rule that this is not essential, the accepted practice is to be certain that the witnesses see the actual placing of the ring on the kallah’s finger (Pischei Teshuva, Even Ha’ezer 42:12).

Reading the kesubah

At this point, the kesubah is read to interrupt between the erusin and the nesuin, and then the sheva berachos are recited. Although some authorities question how one can divide the sheva berachos, the accepted practice is to divide them among six, and in some places seven, honorees (Shu”t Igros Moshe, Even Ha’ezer #94; cf. Har Tzvi).

Out of order

One should be careful to make sure that each person being honored knows which beracha he is supposed to recite. If the berachos are recited out of order, one should not repeat a beracha, but recite the skipped beracha and then proceed to recite the remaining berachos. Similarly, if the honoree began reciting the wrong beracha, including Hashem’s Name, he should complete the beracha he has begun, after which the remaining berachos are recited. If someone began reciting either the beracha of Sos tasis or Samayach tesamach, which do not begin with Hashem’s Name, out of order, he should stop and the correct beracha should be recited (Amudei Apiryon page 76).

Putting his foot down

After the sheva berachos are completed, the choson smashes a glass (Rema, Even Ha’ezer 65:3). (According to an alternative practice, the choson smashes the glass earlier in the ceremony, immediately after the kiddushin are completed.) Many have the custom that prior to breaking the glass, the choson or the audience sings the pasuk,im eshkacheich Yerushalayim… .” This custom has sources in rishonim (Sefer Hachassidim #392).

The choson and kallah are then escorted with music and dancing to the yichud room. Two witnesses, called the eidei yichud, make sure that there is no one else in the yichud room, and then remain posted outside for the amount of time that the mesader kiddushin instructs them.

Conclusion

Having studied the basic customs of our weddings, let us examine an observation of the Noda Biyehudah germane to the priorities people use for checking out shidduchin: “I am astonished that most people have no concern about marrying their daughter to a halachic ignoramus, notwithstanding the words of Chazal about the importance of marrying her to a Talmudic scholar… yet they are concerned about having her marry someone whose name is the same as her father’s, which has no Talmudic basis or source” (Shu”t Noda Biyehudah, Even Ha’ezer 2:79). Thus, we see what factors are significant in a marriage: The choson should be a Torah scholar, and his bride, a ye’rei’ah Shamayim.

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Who Was Eliezer?

Question #1: Who

Who was the greatest talmid chacham in history to have been born in Syria?

Question #2: Was

Was Eliezer a tzadik or a rosha? What difference does it make to us?

Question #3: Eliezer?

What halachos do we derive from Eliezer’s actions?

Introduction:

The Jewish community of Syria has been home to some of the greatest gedolei Yisroel the world has ever known, such as Rav Chayim Vital, the primary disciple of the Arizal and the source of virtually all our knowledge of the Arizal’s kabbalistic teachings. Rav Chayim’s son, Rav Shmuel Vital, the major conduit of kabbalistic teaching in his day, lived most of his life in Damascus. And yet, for most of its Jewish history, Damascus has played less prominence than its northwestern neighbor, Aleppo, famed as Aram Tzovah, home of generations of gedolei Yisroel. And these two Jewish communities, which share a massive diaspora spreading from Argentina, through Panama, Mexico, New Jersey, New York, and Jerusalem, are only two of the major Torah communities that once thrived in the northern part of the Levant. At one time in history, there were literally hundreds of proud Jewish communities scattered throughout what are today Syria, Lebanon, Kurdistan, and southern Turkey; each was justifiably proud of its own minhagim, Jewish traditions and Torah scholars; each had its own Jewish language or dialect.

But this discussion is taking us afield from today’s topic. One of the greatest individuals who hailed from Syria to have walked the face of the earth may have been Eliezer, Avraham’s servant. In its only reference to any personal data about him, the Torah calls him Eliezer the Damascene. (By the way, the chief rabbinate position there, once a highly coveted post, is unfilled at the moment, should you happen to know someone looking for a rabbinical post with a prestigious history.)

The Midrash Rabbah explains that Eliezer was in total control of himself, meaning that he was a highly spiritual individual, a big tzadik, who had mastered his yeitzer hora, his personal inclination to do evil. To quote the midrash, “Eliezer ruled over himself on the same level that Avraham ruled over himself” (Bereishis Rabbah 59:8; see also Yerushalmi Berachos 9:5; Shir Hashirim Rabbah 3:5). The Gemara’s description of Eliezer certainly sustains this impression of his personal greatness. In Yoma (28b), the Gemara describes him as an elder who spent his unoccupied time studying in the yeshivah.

This statement is even more unusual, in that we have a general rule that a gentile is forbidden to study Torah, and, if he does so, he is chayov misah, understood to mean that he will incur the punishment of misah bidei shamayim, a premature death (see Tosafos, Yevamos 2a s.v. Va’achos). Presumably, because Eliezer lived before the Torah was given to the Jewish people, his achieving massive Torah scholarship is viewed favorably by Chazal.

The same passage of Gemara creates a drosha on the reference to him as a Damascene, Damasek. The Gemara explains the word to mean that Eliezer “ladled” liberally from the Torah of Avraham and taught others. In other words, not only was he a regular participant in the yeshivah’s Torah discussions, he was a lecturer and a meishiv in the yeshivah, what we would call a ra’m (rosh mesivta) in the greatest yeshivah of his era, that was established by Avraham Avinu and attended by his disciples. Without question, this Gemara bills him as the greatest Torah scholar in history to have hailed from Syria. Prior to the birth of his sons, who does Avraham consider his worthy heir, as he tells Hashem in parshas Lech Lecha (Bereishis 15:2)? According to Chazal, who accompanies Avraham and Yitzchak on their way to the Akeidah? This is the individual whom Avraham employed to find a shidduch for his cherished son Yitzchak, and for virtually all his endeavors. And whom does Avraham use as his lieutenant commander, when he fields his army to save his nephew Lot?

Germane to this war, the posuk says that Avraham had 318 men in his army when he went to fight the victorious, powerful and world-conquering four armies of Kedorla’omer (Bereishis 14:14). The Gemara (Nedarim 32a) notes that the gematriya of the word Eliezer is 318. Based on this hermeneutical source, the Gemara interprets that Avraham Avinu’s winning battalions contained only two soldiers – Avraham and Eliezer. In other words, Avraham and Eliezer vanquished the Kedorla’omer dragon with the archetypical, traditional Jewish army of only generals and no soldiers. I will continue to explain this midrash later, but, for our purposes now, suffice it to say that this demonstrates Eliezer’s tzidkus and his level of faith and confidence in the Almighty. Who else would attack an army with only one associate, particularly if that associate’s commanding officer is so well-trained and experienced in military tactics as Avraham?

Avraham’s resources

Eliezer is referred to as the “elder of Avraham’s household, who rules over all that he owns.” He was a fully trusted, senior manager of all of Avraham’s property, including all his employees, his servants and slaves. Eliezer was what we would call the CEO or COO of Avraham’s extensive business and personal holdings.

How wealthy was Avraham? Chazal tell us that he owned the entire world (Bereishis Rabbah, 43, 5 and Shemos Rabbah 15, 8). That Avraham entrusts all his worldly possessions to Eliezer reflects one of two things: either that Avraham has little concern for his physical property – he realizes that “you can’t take it with you” — or, alternatively, Avraham has such confidence in Eliezer’s total commitment to fulfill what Avraham asks that he trusts Eliezer completely and has no need to verify what is done. (The likelihood is that both of these factors are true.) History is replete with individuals who were given this amount of trust, and employers and rulers who learned to regret this decision. But not Avraham…

Yitzchak’s shidduch

This incredible tzadik, Eliezer, was then given virtually complete control over the most important matter in Avraham’s life. Avraham has a son, born when his parents are quite aged and, therefore, almost certainly destined for early-orphaned status. Avraham defies all odds and is still alive and alert to direct Yitzchak’s shidduch search.

Yitzchak will clearly continue Avraham’s legacy, that to which he has devoted his entire life. Yitzchak follows in his father’s footsteps perfectly, and even looks exactly like his father, notwithstanding that Avraham is his senior by one hundred years [until Avraham requests that his appearance reflect his age] (Bava Metzia 87a).

For Yitzchak to fulfill his legacy, he needs a wife capable of being his life’s partner, one who can proudly and boldly challenge the entire world. To quote Chazal, Avraham is called “ha’ivri,” not because he descended from the great Torah scholar and Rosh Yeshivah, Eiver, and also not because he was the original “Hebrew,” but because he stood alone opposed to the values of the entire world at his time. As Chazal express it, the entire world stood on one side and Avraham on the other. This mission can be continued only by Yitzchak, who must have descendants devoted to the family business, and for this he needs a wife appropriate to her role.

Who gets entrusted with making sure that this legacy will be perpetuated? Eliezer. Yet, it seems that Eliezer should be the least likely candidate for the position. As Rashi notes, he himself has a daughter for whom he is desperately trying to find an appropriate shidduch – and, to Eliezer, Yitzchak appears as the perfect shidduch! This sounds like the classic case of appointing a fox to guard the chicken coop!

Why is Avraham sending someone to carry out a difficult assignment, when this agent has a vested interest in its collapse? Furthermore, Avraham provides Eliezer with an excuse for failure of the mission – a claim, verified or not, that he located an appropriate girl, but she refused to travel with a group of unknown men, preferring that her suitor come for her. Is this not the accepted approach in all societies until modern times, and, certainly, the seemingly most appropriate and tzeniyus-dik way to do things?!

Tzadik or rosha?

At this point, let us discuss the second of our opening questions: “Was Eliezer a tzadik or a rosha?”

How can we even ask such a question? Did we not already demonstrate that he was one of the greatest tzadikim of all time!

This brings to mind a criticism leveled at Rabbi Akiva, who identified the mekosheish (the person who violated the laws of Shabbos – Bamidbar 15:32) as Tzelofchad, even though the Torah does not mention his name.: “Akiva, either way, you will be punished in the future. If you are correct, the Torah hid this information and you are revealing it. If you are wrong, you are libeling that tzadik” (Shabbos 96b).

Pirkei deRabbi Eliezer

This criticism can be leveled equally at Rabbi Akiva’s great rebbe, the tanna,Rabbi Eliezer ben Harkinus (no relation to Eliezer of Damascus, our protagonist). Although several passages of Gemara and numerous midrashim indicate that Eliezer was an incredible tzadik, we find other midrashim that provide a very different perspective about Eliezer, painting him in a very nasty way. The primary midrash source for this latter approach is Pirkei DeRabbi Eliezer (Chapter 15 ff.), which states that Eliezer was quite evil and was rewarded with much respect and access to wealth as Avraham’s right-hand man in order to receive recompense for his good deeds in this world, leaving his nefariousness deeds to be punished in the next!

Is this not strange? Where else do we find such a major dispute regarding whether a Tanach personality was righteous or evil? Even regarding Noach, about whom we find two disputing approaches in Chazal, all agree that he was a “great tzadik in his generations.” Since Noach performed some questionable acts, Chazal dispute whether to interpret the term, “in his generations” as a compliment, or as a limiting factor: considering the generations in which he lived, he was, indeed, relatively speaking, a great tzadik, but would not have been considered anything unusual had he lived during Avraham Avinu’s(and Eliezer’s) era, when there were such great tzadikim.

Regarding Eliezer, the fact is that no posuk describes him as a tzadik. He is clearly a very devoted servant, and the level of trust placed in him by Avraham implies that Eliezer is a very righteous individual. However, Pirkei deRabbi Eliezer implies that, although trusted by Avraham, Eliezer had major personal faults. We might want to compare him to Do’eig, Achitofel or Elisha ben Avuyah, all of whom were great Torah scholars, but whose shortcomings led them to become major sinners.

What difference?

Let me complete the second of our opening questions. What difference does it make to us whether Eliezer was a tzadik or a rosha? In other words, is there a practical difference whether one or the other of Chazal’s interpretations of Eliezer’s character is accepted?

The answer to this question is halachic. If Eliezer was a great tzadik and talmid chacham, as understood by the Gemara and Rashi, we can derive halacha from his actions. After all, studying the behavior and conversation of great people teaches the proper way to act and speak. To quote Chazal, “the conversation of the servants of our forefathers is more valued than the Torah of their descendants” (Bereishis Rabbah 24, 34).

On the other hand, when we study the behavior of Do’eig, Achitofel and Elisha ben Avuyah, we must proceed with caution. Although Chazal are replete with instances in which we derive insights into proper conduct from resha’im¸ we must be hesitant when we do so. Should we be analyzing Eliezer’s deeds to understand the proper way to act? Thus, whether we can learn from Eliezer’s actions depends on this dispute between the Gemara and Rabbi Eliezer ben Harkinus.

Eliezer’s approach to shidduchim

Upon arriving in the city of Nachor, the Torah describes Eliezer’s prayer to Hashem to send the chosen woman, in the following way: The lass should appear at the well. Eliezer will ask her to provide him with a small amount of water, and she will respond, “I will also provide water for your camels.” This is absolute proof that this girl is to be Yitzchak’s bride, without any other questions or research (Bereishis 24:14). The contemporary equivalent would be that, when looking for a shidduch for your son, obviously the best available bochur in his yeshiva, you appear at the local watering hole and ask one of the available young ladies for a drink. Should she offer refreshment to your thirsty, humped entourage, she is certainly the future mate to make your son happy and build a Torah house together. It is time to arrange the vort and coordinate schedules, so that his rosh yeshivah can be mesadar kiddushin.

This system certainly simplifies arrangements, saves a lot of time and spares discovering sordid details about others. So, perhaps it has much merit. However, halachically this is not the correct approach. It is our responsibility to research potential shidduchin very carefully.

What about nichush?

Furthermore, Chazal question whether Eliezer’s method is indeed permitted, as this might violate the Torah’s prohibition against nichush, sorcery! The Gemara (Chullin 95b), quoting the great amora, Rav, states that what was performed by Eliezer, the slave of Avraham, constituted nichush!

Let me explain:

In parshas Kedoshim (Vayikra 19:26) and parshas Shoftim (Devorim 18:10-11), the Torah forbids any form of nichush, practicing the use of omens. It is prohibited to employ methods that are outside Torah to determine whether to pursue or avoid a particular course of action. According to the Rambam (Moreh Nevuchim 3:37), these practices are forbidden because they are similar to idol worship. Our relationship with Hashem may not be diluted by placing confidence or decision-making in the hands of superstitions, or worse.

Despite the issue of nichush, many commentators discuss Eliezer’s actions, thereby implying that they consider Eliezer a knowledgeable tzadik worthy of emulation, whose actions serve as a basis to learn how one should act. How can this be?

One technical answer is that, perhaps, Eliezer did not feel that the prohibition against nichush applied before the Torah was given, or that it does not apply to non-Jews (see Sanhedrin 56b).

Genealogy

Aside from the problem of nichush, there is another concern about Eliezer’s actions. He had been instructed to choose a wife from Avraham’s kin, but not every resident of Nachor was related to Avraham. So, how could Eliezer make the decision contingent on whether the anticipated young lady happened to be in the right place, at the right time, and generously offered to provide water?

Tosafos suggests that Eliezer did not rely exclusively on Rivkah’s offering the water to propose the marriage, but first verified that she, indeed, held the correct pedigree (Chullin 95b s.v. Ke’eliezer).

Dispute regarding nichush

According to many rishonim (see Ra’avad Hilchos Avodas Kochavim 11:4, 5; Radak (Shmuel I 14:9), only practices founded on superstition, sorcery, idol worship or similar nefarious bases are prohibited because of nichush. Thus, according to the Ra’avad and the Radak, Eliezer’s condition did not violate the prohibition of nichush.

However, the Rambam does not accept this distinction, prohibiting using anything without a logical or halachic basis to make a decision or follow a plan of action (Hilchos Avodas Kochavim 11:5). The Rema (Yoreh Deah 179:4) cites both opinions, without reaching a clear conclusion, and then closes by saying that one who lives his life sincerely and is confident in Hashem’s ways will be surrounded by kindness, implying that it is better not to follow such signs.

Nevertheless, we can justify Eliezer’s actions, even according to the Rambam, based on a beraisa, quoted by the Gemara (Sanhedrin 65b-66a), that allows deciding what to do based on a logical reason for the planned course of action (see Ran ad loc.). In other words, to cancel travel plans today because it appears that it will rain is not a violation of nichush. All opinions agree that nichush does not prohibit undergoing a medical procedure that appears beneficial (Moreh Nevuchim; Meiri, Shabbos 67a), even if no one understands why it helps. Similarly, demonstrating chesed the way Eliezer asked is a good indication that the young lady has the qualities to be Yitzchak’s wife.

Conclusion

I quoted above a passage of Gemara that stated that the entire army that vanquished the four powerful kings led by Kedorla’omer consisted of two soldiers, Avraham and Eliezer. Although this passage is certainly intended to be a midrash and not to be taken literally, the concept the midrash is conveying is that, to Hashem, He Who wages all wars, there is no difference between an army of two (or one, for that matter) and an army of two million. If they have absolute trust in Hashem, He can have them win, even if they are two unequipped and untrained octogenarians, and if He is not interested in their success, two million highly trained Navy SEALS will suffer defeat.

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The Words of the Prophets

Question #1: Just This Once

“Obviously, I never met either the Chofeitz Chayim or Rav Aryeh Levin, but there is a great tzadik in our neighborhood, a big talmid chacham and a mekubal, who is never involved in what is going on. Today, he came to me, quietly, and told me that Hashem appeared to him in a vision and instructed him to tell me that this coming Shabbos, but only this Shabbos, I am supposed to drive him somewhere in my car. Am I supposed to listen to him?”

Question #2: Untruthful Prophets?

The brocha we recite prior to reading the haftarah states ve’rotzeh be’divreihem ha’ne’emarim be’emes, that Hashem “desired the words of the prophets that are said in truth.” This brocha requires explanation: Of course, Hashem desires the words of the prophets – He was the One Who sent them the message in the first place! What does this brocha mean?

Answer:

To answer the above questions thoroughly and correctly, we need to study the entire halachic issue of prophets, beginning from the Chumash, through the Gemara, rishonim and poskim. Even if we do not happen to have a neighbor in shul who meets all the requirements of a navi, we should know these laws:

(1) From a perspective of mitzvas Talmud Torah.

(2) So that we can observe them properly when we again have the opportunity.

(3) So that we can understand the verses that are germane.

(4) A proper understanding of the thirteen ikarei emunah of the Rambam is contingent on comprehending these laws.

How prophetable?

We will start with the Torah’s discussion in parshas Shoftim about the topic:

 “You shall be wholehearted with Hashem, your G-d… A prophet from among you, from your brothers, like me (Moshe), will Hashem, your G-d, establish for you. You shall listen to him…. Then, Hashem said to me… ‘I will establish for you a prophet from among your brothers, like you, and I will put My words in his mouth – everything that I will command him. Whoever will not listen to My words that the prophet will speak in My name – I will exact punishment from him. However, any prophet who will have the audacity to speak in My name that which I did not command him to say, or any prophet who will speak in the name of foreign gods – that prophet shall surely be put to death.’ And should you ask in your heart, ‘How am I to know which statement was not said by Hashem?’ (The answer is): That which the prophet says in the name of Hashem (that it will miraculously happen) and the matter does not transpire, this is, for certain, something that Hashem never said. This prophet has violated the Torah intentionally: Do not be afraid of him.” (Devorim 18: 13, 15, 18-22).

We see in these pesukim the following laws:

A.    If a prophet demonstrates that he is, indeed, a prophet that Hashem sent, we are required to obey whatever he tells us that Hashem commanded. Based on the pesukim and some relevant passages of Gemara and halachic midrash, the Rambam (Sefer Hamitzvos) explains as follows: “Mitzvah #172 is that we were commanded to listen to every prophet and to obey what he commands, even if it contradicts a mitzvah… as long as it is temporary, not a permanent change either to add or subtract… The words of the Sifrei are ‘to him shall you listen’; even if he tells you to violate temporarily one of the mitzvos that are written in the Torah, listen to him.”

B.     Someone who does not follow the commandment of the prophet – Hashem will exact punishment from him. Chazal tell us that the punishment is quite severe.

C.     If the prophet claims to speak in Hashem’s Name and he had received no such commandment – such a “prophet” should be executed.

D.    Someone who meets all the requirements of a true prophet, but relates a prophetic vision in the name of an idol or other foreign god (anything that qualifies as avodah zarah) — this “prophet” should also be executed.

In the Rambam’s opinion, there is also another place in the Torah where this mitzvah is discussed. At the end of parshas Va’eschanan, the Torah writes, “Lo senasu es Hashem Elokeichem, do not test Hashem your G-d” (Devorim 6:16), which the Rambam explains to mean: Do not test the promises or warnings that Hashem sent to us via His prophets, by casting doubt on the veracity of a prophet after he has proven his authenticity. This mitzvah is similarly quoted by the Sefer Hachinuch, who calls this mitzvah (#424 in his count): “Not to test a true prophet more than necessary.”

This leads us to the following question: What are we to do when someone seems to have the right qualifications for a prophet, and he tells us that he received a prophetic vision? The prohibition just described is only after he has demonstrated adequately that he is, indeed, a navi. How does he prove that he is an authentic navi?

Who is prophetable?

First, we need to establish that there are pre-requisite qualifications that must be met by a navi. The Gemara (Nedarim 38a) states: “Hashem places his presence only on someone who is physically powerful, wealthy, wise and humble.” The Gemara proceeds to prove that we know these factors from the fact that Moshe Rabbeinu was physically strong enough to assemble the Mishkan on his own, and that he was extremely wealthy from the trimmings of precious stone that he collected when he chiseled out the second luchos.

The Rambam adds a few other qualities that a prophet must always exhibit: “Among the most basic concepts of religion is to know that Hashem communicates with people. Prophecy happens only to a very wise talmid chacham who is in total control of his personality traits, whose yetzer hora never controls him – rather, he is in control of his yetzer hora, always. He must also be someone with tremendous and correct understanding. Someone filled with all these qualities, who is physically complete and healthy, when he begins studying the deeper aspects of Torah and is drawn into these great topics, develops great understanding, becomes sanctified and continues to grow spiritually, separates himself from the ways of common people who follow the darkness of the time, and instead, he is constantly growing and spurring himself onward. He teaches himself to control his thoughts so as not to think of things that have no value. Rather, his thoughts should always be engaged with the ‘Throne of Hashem’, in his attempts to understand holy and pure ideas.… When the spirit of Hashem rests upon him, his soul becomes mixed with that of the angels… and he becomes a new person who understands that he is no longer the same as he was before, but that he has become elevated beyond the level of other talmidei chachamim” (Hilchos Yesodei HaTorah 7:1).

Net prophets

When the prophet reveals his first prophecy, the posuk that we quoted above teaches: “How am I to know which word was not said by Hashem?” (The answer is): “That which the prophet says in the name of Hashem (that it will miraculously happen) and the matter does not transpire, this is for certain something that Hashem never said.”

This posuk teaches that, in addition to having all the requisite personal qualities, a navi must foretell the future in the Name of Hashem in order to qualify as a navi. There is a dispute between Rav Sa’adiyah Gaon and the Rambam what type of “prophecy” must be demonstrated to prove that he is a prophet. According to Rav Sa’adiyah, the prophet must perform something that is supernatural, such as Moshe did when he turned water into blood, or the stick into a snake. This is because the navi, functioning as a messenger of Hashem, would have been provided by Him with a sign that only Hashem could accomplish, such as preventing water from running downhill, or stopping a heavenly body in its course (Emunos Udei’os 3:4). (This is also the opinion of the Abarbanel in parshas Shoftim.)

On the other hand, the Rambam (Hilchos Yesodei HaTorah 10:2) disagrees, stating:

“Any prophet who arises and says that Hashem sent him does not need to produce a sign on the level of what Moshe Rabbeinu did, or Eliyahu or Elisha, which was completely supernatural. It is sufficient that he prophesy, saying that something will happen in the future, and his words come true.… Therefore, when a man appropriate to being a navi comes… we do not tell him, ‘Let us see you split the sea, or bring the dead back to life, or anything similar, in order that we can believe you’. Rather, we tell him: ‘If you are indeed a prophet, foretell something that will happen.’ When he foretells, we then wait to see if it happens. If it does not happen, even if something small of his prophecy does not happen, we know for certain that he is a false prophet. If his words are entirely fulfilled, you should consider him to be truthful. We then proceed to check him several times; if each time his words are exactly fulfilled, we consider him a true prophet.”

According to some acharonim (Arba’ah Turei Aven), we test him three times, just as Moshe Rabbeinu was given three signs. If he meets all the requirements of a navi and foretells the future, perfectly and accurately, three times, we are required to follow what he tells us to do, and, when we do so, we accomplish the mitzvah of the Torah.

If he predicts that something will happen and it does not, we know that he is a false prophet. In any of these cases where we are not permitted to obey his words, the Sanhedrin would subject him to capital punishment as a false prophet.

Prophets on prophets

There is another way that a navi can be verified as such, without his producing a miracle or foretelling the future. If someone we already know to be a prophet testifies that an individual who meets the personal requirements of a prophet is indeed a navi, the second individual should be accepted immediately as a prophet (Rambam, Hilchos Yesodei HaTorah 10:5). The proof for this is that Yehoshua became accepted as a prophet on Moshe Rabbeinu’s say-so, without producing any miracles or foretelling the future. (The miracles he performed were done later, after he already had been accepted as a navi.)

Gross prophet

What is the halacha if someone who clearly does not meet the personal requirements that we have described tells us that Hashem spoke to him. Let us even assume that he foretells the future successfully, or that he performs miracles. What is the halacha?

The halacha is that he is considered a false prophet. When the batei din had the ability to carry out capital punishment, he would be executed by them. Since our batei din do not have this ability today, we can excommunicate him or banish him, to mitigate the harm he causes. This was done many times in our past, when we were confronted by false prophets. In other words, it is non-prophetable to have him among the Jewish people.

Highly prophetable

The halacha is that once he proved he is a prophet, we are required to obey him, even if he tells us to do something that is counter to a mitzvah or is usually prohibited. The two exceptions are if he tells us that he is changing something of the Torah permanently, or if tells us to violate the prohibition of avodah zarah. In either of these two situations, the Torah tells us that he is a false prophet, even if his tests were true.

Is this a prophetable venture?

At this point, we can analyze our opening question: “Obviously, I never met either the Chofeitz Chayim or Rav Aryeh Levin, but there is a great tzadik in our neighborhood, a big talmid chacham and a mekubal, who is never involved in what is going on. Today, he came to me, quietly, and told me that Hashem appeared to him in a vision and instructed him to tell me that this coming Shabbos, but only this Shabbos, I am supposed to drive him somewhere in my car. Am I supposed to listen to him?”

Let us assume that this talmid chacham/mekubal meets all the requirements that the halacha requires, as quoted above. He now needs to meet the next challenge: According to Rav Sa’adiyah and the Abarbanel, he must perform a miracle that defies nature as we know it. According to the Rambam, he must successfully predict future events several times, without a single detail varying from his description and without any incorrect prediction. If his prophecy is inaccurate even in a slight detail, he is subject to the death penalty, if Sanhedrin can carry out this ruling. Since we have no Sanhedrin today, he would be ruled as a rosho, notwithstanding his other fine qualities.

Personally, I would think that he is probably suffering from some mental illness, and I would recommend that he have a full psychiatric evaluation. I do not think that he is evil; I think that he is ill.

Prophetable brochos

At this point, let us examine our second opening question: The brocha we recite prior to reading the haftarah states that Hashem “desired the words of the prophets that are said in truth.” This brocha requires explanation: Of course, Hashem desires the words of the prophets – He was the One Who sent them the message in the first place! What does this brocha mean?

We can answer this question by realizing the following: With the exception of Moshe Rabbeinu, Hashem communicated to the prophets in a vision, not in words. The prophet, himself, put the ideas he had seen, heard and understood into his own words. It is for this reason that the Midrash teaches that ein shenei nevi’im misnabe’im besignon echad, it will never happen that two prophets recite the exact same words of prophecy (Pesikta and Midrash Seichel Tov, Parshas Va’eira 9:14). Each prophet still maintains some of his own personality and upbringing that will reflect itself in the way he describes what he saw. Yet, the final words, which are the words of the prophet, “their words,” are still “said in truth” – meaning that notwithstanding the personal imprint of the prophet on what he said, the words all convey Hashem’s absolute intent.

Conclusion

In the Sefer Hachinuch, mitzvah #424 is: “Not to test a true prophet too much.” He explains that, if we test the navi after he has adequately proved his veracity, those jealous of him or pained by his success may use excessive testing as an excuse not to listen to his commandments. In other words, they will deny his authenticity unjustifiably, by claiming that he has as yet not been tested sufficiently. Thus, we see that even something so obvious as the ability of a great tzadik to foretell the future can be denied by people, when they don’t want to accept the truth!

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The Talis Exchange and Other Lost Stories

Chazal teach us that in the merit of Avraham saying to the king of Sodom that he would not accept even a thread from him, his descendants received the mitzvah of tzitzis.

Question #1: THE TALIS EXCHANGE

Dovid asked me the following shaylah: “I put down my talis in shul and, upon returning, discovered that it had been replaced with a similar-looking talis. I left the talis undisturbed, and hung up a sign noting the exchange. Unfortunately, no one responded, and, indeed, the owner may not even realize that he has my talis. Should I take his talis home? May I use it, or must I purchase a new one and leave his until he claims it, which may never happen?”

Question #2: THE LAUNDRY EXCHANGE

A laundry returned the correct quantity of items that had been brought originally; however, the customer, Reuvein, later realized that one sheet was not his. A different customer, Shimon, picked up his laundry and was missing some items; however the laundry insisted that it had returned whatever was brought. Shimon subsequently discovered that Reuvein had one of Shimon’s missing sheets and he clearly identified his missing sheet. Reuvein claimed that the sheet was a replacement for his sheet that was lost and that he is therefore not required to return it. Must he return the sheet?

Question #3: THE WEDDING EXCHANGE

Someone went to a wedding wearing one coat and mistakenly returned home with a different one. May he use this coat and assume that the other party is agreeable to the exchange? Does this depend on which coat is more valuable?

Question #4: AN UMBRELLA ON THE SUBWAY

On the subway you see a frum, unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

SHO’EL SHELO MIDAAS

The concern in all these situations is that one is using someone else’s property without permission. This is called sho’el shelo midaas, borrowing without the owner’s knowledge, which is usually halachically equivalent to stealing(Bava Metzia 41a; 43b)! In general, one may not use an item until one receives permission from the owner.

CAN’T I JUST ACCEPT THE TRADE OF THE TWO ITEMS?

Since the loser is wearing my talis, why can’t I simply assume that we have traded taleisim; I’ll keep his talis and allow him to keep mine? (Although the correct Hebrew plural is taliyos or talisos, I will use the colloquial taleisim.)

Although Dovid may grant permission to the other person to use his talis,can he assume that he has permission to use the other person’s talis? Let us examine a relevant discussion:

EXCHANGED ITEMS AT THE TAILOR

Someone whose clothes were replaced with someone else’s at a tailor may use what he received until his garment is returned. However, if the exchange transpired at a shiva house or a simcha, he may not use the garment he received but must hold it until the owner claims his property. What is the difference between the two cases? Rav answered: “I was sitting with my uncle, and he explained to me, ‘Sometimes people tell the tailor to sell the item for them’” (Bava Basra 46a).

We see from this case that if I exchanged a coat with someone else at a simcha or at a shiva, I may not wear the coat,since I am “borrowing” it without permission. The fact that the other person is using my garment, knowingly or unknowingly, does not permit me to use his. I may have to purchase a replacement, even though a perfectly nice garment is sitting unused in my closet, since the garment is not mine.

However, if the exchange happened in a tailor shop, I may use the replacement.

WHAT IS THE DIFFERENCE BETWEEN A TAILOR AND A WEDDING?

Why is the tailor shop different? The Gemara presents a rather cryptic answer to this question: “Sometimes people tell the tailor to sell the item for them.” What does this mean?

The early poskim explain that when the exchange transpired in a repair shop, one may assume that the following situation occurred:

Someone brought a garment to the tailor, asking him to sell it for him. The tailor erred and sold your garment instead and then paid the money received (minus his sales commission) to the original owner of that garment. When you came to claim your garment, the tailor realized his error, and also realized that he must compensate you for your item, since he probably has no way to retrieve it. However, he had no cash available,so he gave you a replacement instead – the garment that he was supposed to sell (Tur and Sma, Choshen Mishpat 136:1). Since the tailor already paid the original owner for his garment, he now owns it and he is fully authorized to give it to you as a replacement for your lost garment. This case is referred to as nischalfu keilim beveis ha’uman (items that were exchanged in a craftsman’s shop).

The next passage in the Gemara’s discussion is now almost self-explanatory:

Rav Chiya the son of Rav Nachman explained that the ruling of nischalfu keilim beveis ha’uman applies only if the repairman himself gave you the different garment, but not if his wife or children gave them to you.

Obviously, if the tailor’s wife or child gave you the wrong garment, you cannot assume that this was because of the tailor’s earlier error. It is more likely that they simply mistakenly gave you the wrong garment, which needs to be returned.

Similarly, the following concluding passage of this discussion is clear.

Rav Chiya the son of Rav Nachman continued: The halacha of nischalfu keilim beveis ha’uman applies only if the repairman told you, “Here is a garment.” However if he said “Here is your garment,” we assume that he erred, since he is not giving you your garment.

If the tailor had sold your garment in error and is now sheepishly providing you with a replacement, he would not tell you, here is your garment. Therefore, if he says here is your garment, we assume he must have mistakenly given you the wrong garment, and you must return it.

We see clearly that the ruling of nischalfu keilim beveis ha’uman applies only when I can assume that a tailor or other repairman inadvertently sold or disposed of my item and can legitimately offer me the replacement. Otherwise the situation is comparable to the case of garments exchanged at a simcha, where one may not use the received garment without permission.

At this point we can analyze Question #2.

A laundry returned to Reuvein the same number of items he had brought originally; however, one sheet is not his. Shimon claims to be missing some items, which the laundry denies. Shimon proves that the sheet is his, yet Reuvein claims that the laundry gave it to him as a replacement for what they lost and that he is therefore not required to return it. Must he return the sheet?

Answer: Shimon did not give the sheet to the laundry to sell. Therefore, the laundry gave Shimon’s sheet to Reuven without authorization and he must return it to its rightful owner, even if Reuven has no other way of being compensated for his loss (Terumas Hadeshen #319; one of the interesting and surprising aspects of this shaylah is that this actual case was asked over 600 years ago!!).

The reason for this is obvious: Laundries do not usually act as agents to sell people’s clothing, and in any case, Shimon clearly denies ever making any such arrangement.

SO, WHAT IS THE STATUS OF THE TALIS?

Let us return to our original question. Someone took Dovid’s talis and left behind a similar-looking one. The owner has not responded to any of his notices, and Dovid suspects that he does not even realize that an exchange transpired.

Based on the above discussion, it would seem that Dovid has no choice but to consider purchasing a new talis. However, there is another Gemara discussion that affects our case, so don’t run to the store just yet. Let us examine the following passage:

Shmuel said, “Someone who finds tefillin in the street should estimate their worth and may wear them himself” (Bava Metzia 29b). If the finder has no need for a pair of tefillin, he may sell them and put the money aside for the owner. The Rosh (Bava Metzia 2:16) rules that the finder may even use the money in the interim.

Shmuel’s statement presents some obvious questions:

His ruling seems to contradict the principle that borrowing an item without permission is tantamount to theft. Why can the finder wear (or sell) these tefillin? As we are all aware, one of the Torah’s mitzvos is to return a lost object to its owner (Devorim 22:1-3; Shemos 23:4). How does the Gemara permit the tefillin finder to wear them and not return them to the owner? And even if we correctly assume that “estimating their worth” means that he is responsible to return the value of the tefillin to its owner if and when he locates him, why is this case different from the normal obligation of returning the actual lost item itself to its owner? Obviously, there must be something about tefillin that permits the finder to keep them and simply repay their estimated value.

Some poskim contend that this ruling applies only to a mitzvah object, where the owner wants someone else to use his tefillin rather than have them sit unused (Shach 267:16, in explanation of the Rambam, Hilchos Gezeilah 13:14). However, most authorities imply that this ruling also applies to non-mitzvah items, in cases where the owner is satisfied with simply receiving back their value (see Tur and Shulchan Aruch, Choshen Mishpat 267:21). The basis for this second opinion is the continuation of the Gemara’s discussion:

TEFILLIN VERSUS SEFORIM

The Gemara asks why someone finding tefillin may wear them, since this ruling appears to contradict a statement that someone who found books may not use them, but must hold them for the owner. Why are tefillin different from seforim? The Gemara answers that a person wants to receive back his own books, whereas he can always purchase new tefillin. This implies that people have no strong attachment to any specific pair of tefillin, whereas they have tremendous interest in seforim that are difficult to replace. From this one could infer that there is a difference between finding an item that the owner does not mind replacing and finding an item that he does not want to replace, and this would seem to have ramifications for someone who finds a talis, an umbrella, or some other easy to replace item.

Although this seems to be the obvious point of this Gemara, elsewhere the Gemara seems to rule otherwise. If someone found coins placed in a deliberate fashion, the finder may not spend this money and replace it with other coins, but must hold these very coins and return them to their owner (Bava Metzia 29b). Obviously, the owner is not concerned about receiving back these specific coins, and would be very satisfied with receiving replacement money. Why is it not sufficient to simply return coins of the same value? We see that returning replacement value is not satisfactory, even when the owner does not care.

The answer is that in the case of lost tefillin, two factors must be met before one may use them. In addition to the point mentioned above, another consideration is that someone who finds tefillin must occasionally air them out and ensure that they are kept dry (Rosh, Bava Metzia 2:18). (When a person wears tefillin daily, he automatically airs them out at the same time, which benefits them.) Thus, the owner of the tefillin actually benefits more if the finder sets aside money, since the tefillin will become ruined if no one takes proper care of them. This is qualitatively different from finding lost coins, which require no care other than storing them in a secure place.

We can therefore derive the following principles:

If taking care of a lost item requires some effort, and the owner does not care whether he receives back the original item, the finder may estimate the value of the lost item and plan to repay the owner this amount. Otherwise, the finder should hold the lost item and await the owner’s return.

Having established the rule, let us see which cases fit the rule and which do not. Clothing does not usually fit this rule, since people are interested in receiving back the same garment. A person is comfortable with his own clothes, and often purchasing something to one’s taste is not a simple matter. Therefore, someone finding a lost garment may not sell it and hold the money for the owner.

ARE UMBRELLAS AND TALEISIM LIKE TEFILLIN?

On the other hand, the average person does not develop a personal attachment to his umbrella and is perfectly satisfied to have a usable replacement umbrella. Similarly, a man is usually not that concerned about his specific talis and is satisfied with a replacement. In addition, both of these items are comparable to tefillin and not to coins, since if they are never used they become musty. (Normal use of an umbrella airs it out.) Therefore, someone who locates a lost umbrella may use it after estimating its value.

We are now prepared to answer Question #1 and also Question #4. I will answer Question #4 first: On the subway you see a frum but unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

Clearly, she will despair of recovering her umbrella as soon as she realizes her loss (yi’ush), and if pick it up after she realizes that she left it on the subway, you are not responsible to return it or its value. Nevertheless, in this subway scenario, you will be picking up the umbrella before she realizes her loss.  In that case,  the umbrella is still the property of the person who lost it and someone picking it up is responsible to return it.

However, a person is usually not concerned about owning a specific umbrella, but is satisfied with money to purchase a replacement. (Indeed, if the umbrella that was lost appears to be a designer umbrella, the halacha will be different.) Therefore, even though the owner still owned the umbrella when you found it, you may claim the umbrella as your own, and simply make a mental note how much it is worth. Should you ever meet its owner and she proves that the umbrella was hers, you must compensate her.

And now our analysis of our opening question, The Talis Exchange

Dovid had put down his talis in shul, and it was replaced by a similar-looking talis. His attempts to alert the owner were unsuccessful, and, indeed, the owner may not even notice the exchange. May Dovid use the other talis or must he purchase a new one?

I believe that most men do not feel attached to their particular taleisim, and this case is therefore comparable to the tefillin case of the Gemara. Assuming this to be true, someone who finds a lost talis may estimate its value and then either wear it or sell it. Either way, he should record the value of the talis and intend to return it to the owner, should the owner ever return for it. When I first published this article, I received several responses disagreeing with me, contending that most people are more possessive of their taleisim than I felt.

PECULIARITIES

The careful reader may have noted that our discussion is heading to an unusual conclusion.Although the Gemara’s rules that the owner is less concerned about retrieving his tefillin than retrieving his seforim, today the opposite is generally true – an owner is usually not concerned about receiving backthe same sefer since one can usually purchase it again in a bookstore. (However, the Gemara’s halacha would remain true if he had written notes in the sefer, or it is a special edition that the owner would not be able to readily replace.)

On the other hand, many people own hand-picked tefillin and want their specific pair back (Minchas Elazar 4:9; see Pischei Choshen, Aveidah 6:ftn23). They may have purchased tefillin whose parshi’os were written by a specific sofer who no longer writes, or made by a specific batim macher who has a long waiting list. After analyzing the principles of the above-mentioned Gemara, the Minchas Elazar decides that the original owner gets his tefillin back. Thus, although the principles of the Gemara are infinite, the specific cases that match them change with society.

Returning lost items is a beautiful and important mitzvah. As we now see, the details of observing this mitzvah are often very complicated – and can vary from item to item.

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May a Non-Jew Own a Nectarine Tree?

Photo by Philipp Pilz from FreeImages

For that matter, may a Jew?

I once received the following query:

“I am not Jewish, but I observe the laws of Noahides as recorded in the writings of Maimonides, which I have read in the Yale University translation. I am aware that a gentile may not graft one species of tree onto another. Does owning a nectarine tree violate this prohibition? I would be greatly appreciative if you could answer this question, since I have just purchased a house with a nectarine tree in the yard.

Sincerely,

Jacqueline Baker

250 Washington Blvd.

Asheville, NC” (name and address have been changed)

Many of us reading the title of this article may have wondered, “If I am permitted to eat nectarines, why shouldn’t I own a nectarine tree?” Although the answer to this question is fairly straightforward, there are many other issues that need clarification, before we can answer Jacqueline’s shaylah.

First, let us explain the halachos of tree-grafting applicable to Jews. Sadly, because many Jews are unfamiliar with these halachos and unaware of the prevalence of grafted trees, they often, unwittingly, violate these laws.

Also, most people misunderstand the prohibition against kelayim, which is often translated as “mixed species.” People often understand this to mean a prohibition against hybridization or cross-breeding. Although it is true that the Torah prohibits crossbreeding different species of animal, virtually all other types of forbidden mixtures have nothing at all to do with hybridization. We list here the six types of prohibited mixtures, called kelayim.

1. Wearing shatnez, which is a mix of wool and linen.

2. Cross-breeding two animal species.

3. Using two animal species to haul or work together. This mitzvah is usually called lo sacharosh, do not plow with an ox and a donkey together.

4. Grafting different tree species. A sub-category of this prohibition is planting one species on top of or inside another species, a process that is virtually non-existent in contemporary agricultural practice.

5. Planting other crop species in a vineyard. For this purpose, “crop” refers to an annual (grows for only one year and then dies) edible plant. Examples are: seeds that are eaten, like beans, wheat, and sesame; root vegetables, like radish; leaves, such as lettuce; or fruit, such as tomatoes or melons.

6. Planting two crop species together or near one another. This prohibition applies only to species that are eaten.

Although we usually assume that the word kelayim means “mixture,” some commentaries explain that this word originates from the same Hebrew root as the word “prison,” beis ke’le. Thus, Rav Hirsch (Vayikra 19:19) explains that the root word כלא means to keep or hold something back, and that the plural form kelayim is similar to yadayim or raglayim and means a pair. Therefore, the word kelayim means to pair together two items that should be kept apart.

In order to explain the prohibition against grafting trees, the subject of our article, I will first provide some scientific background for city dwellers like myself, who know almost nothing about gardening and horticulture. Having been a city slicker almost my whole life, I freely admit that I knew little about this subject until I did some research in order to understand the halacha.

Hybridization (cross-breeding) of plants occurs when one pollinates the flower of one species with pollen from a different species. However, most of the prohibitions of kelayim have nothing to do with cross-breeding species. In the case of “herbaceous plants,” that is, plants other than perennial (live for many years) trees and shrubs, kelayim is a prohibition against planting two crop species close together. Halacha prohibits planting a crop species inside a vineyard, planting one species too close to another already planted species (distances vary according to how many plants are growing together), planting one species on top of or inside another species, and sowing the seeds of two species together. Incidentally, these prohibitions apply only in Eretz Yisrael, with the exception of planting a crop species in a vineyard (Kiddushin 39a) and, possibly, of planting one species inside another (see Gemara and Tosafos, Chullin 60a; Rambam, Hilchos  Kelayim 1:5 and Radbaz). Thus, someone in chutz la’aretz may plant his backyard garden with a wide variety of vegetables and other edibles without any halachic concern, whereas in Eretz Yisrael, someone planting a garden patch must be very careful to keep the different species separate. The complicated question of how far apart to plant them, and what qualifies as a valid separation if one plants them close together, is beyond the scope of this article (see Chazon Ish, Hilchos Kelayim 6:1).

(By the way, the halachic definition of a species often differs from scientific definition. For example, although some scientists consider wolves and dogs to be the same species, halacha does not; therefore, one may not crossbreed them or use them to haul a load together [Mishnah, Kelayim 1:6]. On the other hand, the Chazon Ish [3:7] discusses whether all citrus fruits are the same species regarding the laws of kelayim, which would permit grafting a grapefruit branch onto a lemon rootstock, whereas scientists consider them to be two distinct species.)

HARKAVAS ILAN – CROSS-GRAFTING

The laws of kelayim also prohibit grafting a branch of one species of tree onto the root stock, or lower trunk, of another species. Although a town dweller may feel that this is a rare occurrence, in fact, contemporary plant nurseries and tree farmers usually graft branches of a species that produces delicious fruit onto the hardier stock of a different species.

For example, most modern peach and nectarine trees are produced by grafting a peach or nectarine branch onto the stock of a hardier, botanically-related tree, such as an almond. As I will explain, someone who performs this, either in Eretz Yisrael or in chutz la’aretz, violates a Torah prohibition. According to many authorities, a non-Jew is also commanded regarding this mitzvah. This latter opinion contends that a Jew who causes a non-Jew to graft such a tree, or even to prune or water it after grafting was done, contravenes lifnei iveir, causing someone else to violate a prohibition.

Because so many trees are grafted nowadays, someone who owns a peach tree should have a horticultural expert check whether its rootstock is also a peach tree, or whether it is of a different species. If the stock is peach, even of a different variety, he may keep the tree; if the stock is of a different species, he should chop off the tree below the point of the graft. (Nobody has suggested that George Washington chopped down his father’s cherry tree because it was grafted onto a different species. Since George always strove for truth, however, this was, nonetheless, an additional good deed, at least according to some opinions.) As we will see shortly, there is no violation of bal tashchis in cutting down a grafted tree.

Often, even a non-expert can detect if a tree was grafted onto a different species by simply scrutinizing the tree. If the bark somewhere near the bottom of the tree looks very different from the upper part of the tree, this indicates that the upper part of the tree was grafted, possibly onto a different species. Before purchasing a new tree at a nursery, examine the trunk carefully for signs of grafting. If, indeed, this tree is the product of a graft onto a different species, then watering or pruning it violates a Torah law, as I will explain. Furthermore, one may not use a sprinkler to irrigate the rest of the lawn on which the tree stands, if this tree will benefit.

NECTARINE TREES

Nectarine trees are susceptible to a host of plant diseases, and, as a result, are usually grafted onto the stock of peach, plum, almond or other trees. It is unclear whether peach and nectarine are halachically considered the same species, but the other species are not the same, according to halacha. Therefore, watering a nectarine tree grafted onto a different species stock probably violates halacha.

By the way, according to halacha, one may plant or maintain different species of trees in close proximity, presumably because grown trees do not look mixed together but stand distinct.

DOES THE PROHIBITION AGAINST GRAFTING APPLY IN CHUTZ LA’ARETZ?

Although most agricultural mitzvos (mitzvos hateluyos ba’aretz), such as terumah, maaser, and shmittah apply only in Eretz Yisrael, some of these mitzvos apply also in chutz la’aretz, such as the mitzvah of orlah, which prohibits using fruit that grows on a tree before it is three years old.

Although the laws of orlah differ when the tree grows in chutz la’aretz, the fruit produced before the tree is three years old is nevertheless prohibited.

Where does kelayim fit into this picture? Of course, some kelayim prohibitions, such as shatnez, cross-breeding animals and lo sacharosh are not agricultural and, therefore, apply equally in Eretz Yisrael and in chutz la’aretz. Among the agricultural prohibitions of kelayim, some apply in chutz la’aretz also, whereas others apply only in Eretz Yisrael.

Planting vegetables and other edible crops together applies only in Eretz Yisrael, grafting trees applies equally in chutz la’aretz and in Eretz Yisrael min hatorah, while planting in a vineyard applies in chutz la’aretz, but only miderabbanan (Kiddushin 39a).

MAY I OWN KELAYIM?

The Gemara (Moed Katan 2b) cites a dispute whether maintaining kelayim in a vineyard (in Eretz Yisrael) is prohibited min hatorah. Rabbi Akiva contends that building a fence to assist the growth of the two different species together violates a Torah law, whereas the Sages contend that it does not (Rashi to Avodah Zarah 64a).

Most poskim conclude that one may not own kelayim in a vineyard, but must remove the plant that is causing kelayim (Shulchan Aruch Yoreh Deah 297:2). The Rambam (Hilchos  Kelayim 1:2) paskins that owning kelayim is prohibited only miderabbanan, whereas the Rosh (Hilchos  Kelayim #3) prohibits this min hatorah. (We should note that Shu’t Chasam Sofer [Yoreh Deah #282] contends that Tosafos [to Avodah Zarah 64a s.v. Rabbi Akiva] permits owning kelayim.)

WHAT ABOUT OWNING A GRAFTED TREE?

Most poskim assume that one may not own a kelayim tree, just as one may not own kelayim in a vineyard. Furthermore, they contend that this halacha applies, whether the tree is in Eretz Yisrael or in chutz la’aretz (Rosh, Hilchos  Kelayim Chapters 1& 3; Pischei Teshuvah, Yoreh Deah 295:2, quoting many poskim).

However, in times past, many observant Jews purchased agricultural properties that contained kelayim trees, and they did not cut down those trees. Was there any justification for their actions? Many halachic responsa discuss what was, apparently, a widespread practice in the eighteenth and nineteenth centuries. Whereas most poskim rule that these Jews violated the halacha, some authorities justify the practice of owning grafted trees, at least in chutz la’aretz (Shu’t Chasam Sofer, Yoreh Deah #288; cf. Aruch Hashulchan, Yoreh Deah 295:17-18). Even these opinions agree that it is preferred to follow the stricter approach and cut down the grafted part of the tree.

I THOUGHT THAT ONE MAY NOT CUT DOWN A FRUIT-BEARING TREE?

Although it is usually prohibited to chop down a tree that bears enough fruit to be profitable, this prohibition does not exist when owning the tree involves a prohibition. Furthermore, bal tashchis, generally, does not exist when one is trying to enhance one’s observance of mitzvos.

Nevertheless, it is preferred to have a non-Jew chop down the tree, since he has no mitzvah of bal tashchis.

DOES THE MITZVAH OF KELAYIM APPLY TO NON-JEWS?

In general, a non-Jew is required to observe only seven mitzvos. However, there are many opinions that require non-Jews to observe certain other mitzvos. The Gemara (Sanhedrin 56b) quotes a dispute concerning whether a non-Jew must observe certain of the kelayim mitzvos. According to the Sages, no aspect of the prohibition of kelayim applies to bnei Noach, whereas Rabbi Elazar contends that they are included in some of the kelayim prohibitions, but not others. Specifically, they are prohibited from mating different animal species and from grafting one species of fruit tree onto another, but they may plant different species together or in a vineyard, and they may wear shatnez.

Why are they included in some prohibitions but not others?

Describing the creation of plants, the Torah says: “And G-d said, ‘The earth shall sprout forth vegetation, herbage that produces seed; edible trees that produce fruit of their own species…’ And the earth produced vegetation, herbage that produces seed of its own species and trees that bear seed-bearing fruit of their own species” (Bereishis 1:11-12).

Reading the pasuk carefully, we see that Hashem ordered only the trees, and not the herbaceous plants, to “produce fruit of their own species.”

Even though the herbage did, in the end, produce “seed of its own species,” this was not because it was commanded. The Gemara derives from other sources that, just as the earth was commanded to keep tree species distinct, so, too, Adam harishon and all his descendants were commanded to keep these species distinct. But since the herbaceous world was never commanded to keep its species distinct, Adam was not commanded concerning this halacha. Therefore, although Jews may not plant different species together, bnei Noach may (Yerushalmi Kelayim 1:7, quoted by Gra, Yoreh Deah 295:2).

WHICH OPINION DO WE FOLLOW?

Do we rule like the Sages that a non-Jew is not included in the prohibition of harkavas ilan, or like Rabbi Elazar, that he is? The Rambam (Hilchos Melachim 10:6) rules like Rabbi Elazar, that a non-Jew may not graft one species of tree onto another, whereas the Ritva (Kiddushin 39a s.v. amar Rabbi Yochanan) and the Shach (Yoreh Deah 297:3) are lenient.

Although we usually follow the Rambam’s opinion, some poskim suggest that we might be able to rule leniently, if only a rabbinic prohibition is involved, such as where the grafted tree exists already and one is not watering or pruning it (Chazon Ish, Kelayim 1:1).

MS. BAKER’S SHAYLAH

I mentioned earlier that a Jew who prunes or waters a kelayim tree violates the Torah prohibition, whether in Eretz Yisrael or in chutz la’aretz. According to most authorities, one may not even own this tree, and one is required to cut down the grafted part. However, since this last prohibition is only miderabbanan, according to most poskim, non-Jews may allow a grafted tree to survive and may even build a fence around it, since they are not required to observe rabbinic prohibitions. (Compare, however, Shu’t Mahari Asad, Yoreh Deah #350 and Shu’t Maharsham 1:179.) Ms. Baker may not water or prune a grafted tree, because that is halachically equivalent to planting it, which is prohibited according to most opinions. In my opinion, she may also not operate her sprinkler system to irrigate her lawn, if the kelayim tree will benefit as a result.

May Ms. Baker ask another non-Jew to water her tree? The poskim dispute whether a non-Jew may ask or hire someone else to violate a mitzvah. Most contend that this is permissible, because the mitzvah of lifnei iveir, causing someone else to violate a mitzvah, does not apply to non-Jews (Tosafos, Avodah Zarah 16b s.v. lenachri). Other authorities (Ginas Veradim, Klal 43) prohibit this, basing themselves on earlier sources that prohibit a ben Noach from violating a transgression that logic tells us to avoid (Rabbeinu Nissim, Introduction to Shas).

MAY WE EAT THE FRUITS OF A GRAFTED TREE?

One may eat the fruits of a grafted tree (Rambam, Hilchos  Kelayim 1:7, based on Yerushalmi). One may even take the shoot of a grafted tree and plant it, after it has been severed from the original tree.

SEPARATION OF SPECIES

In all six types of kelayim mentioned above, the general criterion is to avoid the appearance of different species being intermingled.

Concerning this, Rav Hirsch (Vayikra 19:19) writes, “The Great Lawgiver of the world separates the countless numbers of His creations in all their manifold diversity, and assigns to each one of them a separate purpose and a separate form for its purpose.”

In addition, observing the laws of kelayim helps us remember how various species obeyed Hashem’s instructions to remain separate during their creation (the source for some halachos of kelayim, as we saw above). This reminds the contemplative Jew that if the plants heeded Hashem’s word during the Creation, how much more are we obligated to obey all His instructions.

The author thanks Dr. Joshua Klein of the Volcani Institute and Rabbi Shmuel Silinsky for their tremendous assistance in providing horticultural information for this article.

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Food Coloring and Shabbos

Question #1: Mixing drinks

“May I mix red and white wines on Shabbos?”

Question #2: Cake decorating

“May I decorate a cake on Shabbos?”

Answer:

One of the 39 melachos, prohibited activities, of Shabbos is tzovei’a, dyeing. Tzovei’a was performed during the construction of the Mishkan when they dyed the rams’ hides red, as well as when they dyed the woolen threads used in the curtains and the clothing of the kohanim (Yerushalmi, Shabbos 7:2, referring to Shemos 25:5, 26:14, 35:7,23; 36:19, 39:34). Staining furniture, dyeing cloth or painting a rustproof finish on a metal trim (see Minchas Chinuch, Mitzvah 32:15) on Shabbos or Yom Tov all violate this melacha. Someone who paints a house on Shabbos is punishable for two different melachos, tzovei’a and boneh, construction (Tiferes Yisrael, Kalkeles Shabbos #15).

Dyeing food

The opening questions concern the following topic: May one color food on Shabbos or Yom Tov? As we will see shortly, many halachic authorities contend that the melacha of tzovei’a does not apply to edible items. Why should food be treated differently from furniture or clothing?

Egging on your mustard!

To begin, let us note a Talmudic passage that implies that tzovei’a does not apply to food. The Mishnah (Shabbos 139b) rules that one may add egg to mustard seeds on Shabbos, which the Gemara (140a) explains to mean even when the goal is for the yolk to color the mustard more yellow than it is naturally. Why is this not prohibited as dyeing on Shabbos?

An early authority, the Shibbolei Haleket (#86), explains that adding egg to mustard is permitted because of a halachic principle that he calls ein tzovei’a ba’ochlin, the melacha of dyeing does not apply to food. Because of this principle, he permits dipping bread into fruit juice on Shabbos in order to color it. Since the position of the Shibbolei Haleket is the only opinion on the subject quoted by the Beis Yosef (Orach Chayim 320), we are not surprised to find that Rav Yosef Karo, the author of the Beis Yosef, ruled in the Shulchan Aruch (Orach Chayim 320:19) that ein tzovei’a ba’ochlin, without even mentioning that some authorities reject this ruling. Because of ein tzovei’a ba’ochlin, the Shulchan Aruch permits using saffron to color food on Shabbos.

Although we have now established a halachic precedent for ein tzovei’a ba’ochlin, we still do not know a rationale why this principle should be true. Among the later authorities, we find several approaches to explain why ein tzovei’a ba’ochlin.

Dyeing is forever!

The first approach requires a bit of an introduction, because we will be comparing dyeing to other melacha activities that do not apply to food. The Gemara cites a dispute whether salting meat heavily so that it will not spoil, as was done commonly in earlier generations, violates the melacha of tanning (me’abeid) on Shabbos (Shabbos 75b). Rabbah bar Rav Huna contends that salting meat on Shabbos to preserve it for a long trip is prohibited min hatorah, whereas Rava maintains that salting meat or any other food can never violate this melacha min hatorah, a position he explains as ein ibud ba’ochlin, the melacha of tanning does not apply to food.

Both Rabbah bar Rav Huna and Rava agree that the salting of meat to remove its blood, what we call kashering, does not violate the Torah prohibition of tanning (Shabbos 75b). According to Rava, even the heavy salting done to preserve meat for months is not comparable to the salting that preserves hides, which is prohibited min hatorah. The goal of tanning hides is to make leather that will last as long as wood does, which is not the goal when salting food, even for preservation purposes.

The Chasam Sofer explains that the reason for ein tzovei’a ba’ochlin is closely related to the principle of ein ibud ba’ochlinthe melacha of tanning does not apply to food. He contends that the melacha of dyeing applies only to items that one can dye permanently (Chasam Sofer, Shabbos 75a, s.v. Rav). The coloring on food is never meant to be forever, since one’s goal is that the food is eaten.

Following this approach, we find that some authorities understand ein tzovei’a ba’ochlin in a very broad way. The Chacham Tzvi (Shu”t Chacham Tzvi 2:92) implies that the principle of ein tzovei’a ba’ochlin permits using fruit juice or other edible dye to paint one’s hands on Shabbos. Since the source of the dye is edible, as long as one does not use it to color clothing and other items where the color may set in a permanent way, it is permitted to do so. We should note that later authorities reject this broad heter of the Chacham Tzvi (see, for example, Pri Megadim, Eishel Avraham 320:25).

Rabbinic limitations

Others note that the comparison of dyeing to tanning should have us conclude that dyeing food does not constitute a violation min hatorah, because it is not permanent, but it should still be prohibited on Shabbos and Yom Tov because of a rabbinic injunction. The same is true regarding kashering meat on Shabbos. Although it does not violate any Torah prohibition, it is prohibited because of a rabbinic injunction, as noted by Tosafos (Shabbos 75b). Yet, we see that it is permitted lechatchilah to color mustard seeds with yolk on Shabbos. According to what we have just said, this should be prohibited because of a rabbinic injunction.

The Chayei Adam answers that using an item that is commonly viewed as a colorant is prohibited because of rabbinic injunction, but coloring food with an item not usually considered a colorant, such as egg yolk, is permitted lechatchilah (Chayei Adam 24:5, Nishmas Adam 24:3).

A difference in practical halacha results between the two opinions we have quoted: the approach of the Chasam Sofer, that painting food is never considered tzovei’a, and that of his contemporary, the Chayei Adam. According to the Chasam Sofer’s approach, any food coloring may be added on Shabbos, even something commonly used to add color, such as saffron. According to the Chayei Adam’s approach, ein tzovei’a ba’ochlin is limited to items that are not usually considered colorants, such as fruit juice or egg yolk. The Chayei Adam expressly disputes the ruling of the Shulchan Aruch, quoted above, who permitted using saffron on Shabbos as a food color, contending that saffron may not be used, since it is a commonly used colorant (Nishmas Adam).

Color is like flavor

There is yet a third way to understand why ein tzovei’a ba’ochlin. The Kehillas Yaakov (Shabbos #40) explains that the melacha of dyeing is violated only when one intends to create a beautiful item. One adds color to food not so that the item should be more beautiful, but to make it more appetizing to eat. As any caterer or restaurateur will tell you, serving food in a colorful and eye-catching way is an important factor in making a repast a pleasant experience. According to this approach, coloring food on Shabbos is permitted, just as one may flavor food, even if one uses a colorant, such as saffron. Thus, we can explain why the Shulchan Aruch permitted using saffron on Shabbos, either according to the approach of the Chasam Sofer or according to the approach of the Kehillas Yaakov.

On the other hand, the approach of the Kehillas Yaakov permits tzovei’a ba’ochlin only when one’s goal is to make the food more palatablee. However, dyeing food to demonstrate that the colorant creates a permanent hue desecrates Shabbos. It is prohibited, perhaps min hatorah, to use food color when your goal is to create an exhibition, and not simply to encourage people to eat (Pri Megadim; Eishel Avraham 320:25). Similarly, one may not color water when one does not intend to serve it, since the purpose of the dyeing is not to make it more attractive as a food (Chayei Adam 24:4; Tiferes Yisrael, Kalkeles Shabbos #15).

We should note that one major authority rules that the last instance of tzovei’a, mixing food color and water, is not prohibited min hatorah, but for a totally unrelated reason. The Rogatchover Gaon explains that the definition of tzovei’a requires that pigment is placed on the surface of an item, such as is done when painting or dyeing (Commentary to Hilchos Shabbos, 9:14). However, in his opinion, mixing dye with water is not placing a color atop an item, but an act of diluting pigment, and, therefore, does not qualify as tzovei’a.

Cake decorating

May one decorate a celebratory cake with various food colors on Shabbos? On the one hand, this is food that will soon be consumed, so perhaps this should be included under the rubric of ein tzovei’a ba’ochlin. On the other hand, one can argue that, in this instance, the purpose of the coloring is not to attract people to eat the cake. Rather, the decorating is to use the cake as a means of conveying good wishes to the celebrant, and the color, therefore, does not serve a food purpose. Therefore, according to the Kehillos Yaakov, this is similar to coloring food on Shabbos as part of an exhibition, which is prohibited.

Adding red wine to white

Here is another case which might be affected by the dispute why ein tzovei’a ba’ochlin. Based on a pasuk in Mishlei (23:31) that implies that red wine is preferred, the Shulchan Aruch (Orach Chayim 472:11) rules that it is preferred to use red wine for the four cups of wine at the Seder (based on Bava Basra 97b). The question is raised by early authorities: If one has reasons to use a white wine for the seder, but wants to provide a reddish tinge to fulfill this halachic preference, may he mix red and white wines together on Shabbos or Yom Tov? Is this permitted because of ein tzovei’a ba’ochlin?

The Darchei Moshe (end of Orach Chayim 320) quotes a dispute between the Agur and Rav Avraham Mintz. The Agur quotes that he heard from Rav Avraham Mintz that mixing the wines is prohibited because of tzovei’a, whereas the Agur himself permits it, because of ein tzovei’a ba’ochlin, just as one may add egg yolk to mustard seeds.

According to the first two approaches to explain ein tzovei’a ba’ochlin, it should be permitted to mix the wines. The blended wine will soon be consumed, and, therefore, this coloring is certainly not permanent. Furthermore, wine is not usually considered a colorant. So why did Rav Avraham Mintz prohibit it?

We can suggest the following: Perhaps he understood the halacha similar to the way the Kehillas Yaakov did – that the reason we permit coloring food on Shabbos is to make it attractive and this is considered equivalent to flavoring it. This halacha is true only when the coloring is to encourage people to eat the food. However, blending red and white wine because he wants the wine to fulfill those opinions that hold that red wine is halachically preferable is an act of coloring and forbidden. This, reasoned Rav Avraham Mintz, is not included under the heter of ein tzovei’a ba’ochlin (see Mishnah Berurah 320:56). (We should note that the Nishmas Adam 24:3 presents a different approach to explain the position of Rav Avraham Mintz.)

A challenge

Notwithstanding the extensive discussion I have presented of the concept ein tzovei’a ba’ochlin, many authorities challenge the conclusion that ein tzovei’a ba’ochlin, based on the following Talmudic passage:

The Gemara (Shabbos 75a) cites a dispute between Rav and Shmuel germane to the question of how many melachos of Shabbos someone violates if he slaughters (shechts) an animal on Shabbos. Shmuel rules that he has violated only one melacha, that of taking a life. Rav contends that he violates two, one for taking a life and a second for dyeing, since one desires that potential purchasers see that the meat is fresh (see Rashi ad locum). Since Rav contends that coloring the meat red with blood is prohibited min hatorah as an act of dyeing, he presumably disputes the ruling of ein tzovei’a ba’ochlin!

In terms of halacha lema’aseh, the question becomes even stronger, since the majority of authorities rule according to Rav (Semag; Yerei’im; Semak; Or Zarua; Meiri; Rashi, Bava Kama 34b s.v. betzarich). [We should note that several authorities, including the Chasam Sofer, the Nishmas Adam (24:1), and the Avnei Neizer, understand that the Rambam ruled according to Shmuel.] Indeed, we should be aware that, on the basis of this Gemara, one major rishon disputes the entire principle of ein tzovei’a ba’ochlin and rules that it is prohibited to color foods on Shabbos (Tosafos Rid, Shabbos 75b; see also Shu”t Avnei Neizer, Orach Chayim 1:173). It is possible that Rav Avraham of Mintz held this way also, and that this is the reason he prohibited mixing red and white wine on Shabbos. However, most authorities conclude that ein tzovei’a ba’ochlin, which means that we must have some way of explaining why Rav prohibited shechting an animal because it violates tzovei’a.

Meat or hide?

It is possible that Rav does not dispute the principle of ein tzovei’a ba’ochlin, and that he ruled that one violates tzovei’a when slaughtering an animal only when the hide is bloodied, but not for the bloodying of the meat. Hide is not food, and coloring it has the halachic status of dyeing leather, which is certainly forbidden min hatorah. Indeed, there are rishonim who explain that Rav contends that one violates tzovei’a only when he wants the hide to look red (Sefer Yerei’im; Or Zarua).

Although this approach has much merit, there must be another way to explain the difference between Rav’s case and the principle of ein tzovei’a ba’ochlin. This is because Rashi explains that Rav ruled that one violates tzovei’a even when he wanted only the meat to look red. According to Rashi, we must look further to find an answer why Rav ruled that providing fresh meat with a bloody surface violates tzovei’a min hatorah, notwithstanding that ein tzovei’a ba’ochlin.

Meat versus mustard!

Indeed, many authorities contend that there is a qualitative difference between coloring mustard seed with yolk and coloring meat with blood. In the meat case, one is not trying to make a ready-to-eat food more attractive, which is halachically equivalent to flavoring food and therefore permitted. Rather, the slaughterer’s interest is to sell the meat, and reddening the meat is to make it more attractive for purchase. This may be no different from painting a house that one is selling, which is done to make it more aesthetically pleasing and attractive to a potential buyer. Both activities are prohibited min hatorah on Shabbos (Nishmas Adam 24:3).

An alternative approach to explain why Rav considered bloodying meat an act of dyeing min hatorah is because ein tzovei’a ba’ochlin applies only to food that can be eaten immediately. However, the freshly slaughtered meat that Rav describes requires soaking and salting to make it kosher for the Jewish table (Shu”t Chacham Tzvi 2:92; Shu”t Avnei Neizer, Orach Chayim 1:173).

Food color to whiskey

Would adding colorant to hard liquor on Shabbos to make it more salable violate a Torah prohibition of dyeing? According to the last reason we have cited, it would, and, indeed, the Pri Megadim (Eishel Avraham 320:25) prohibits adding colorant on Shabbos to whiskey or mead that is for sale, contending that the heter of ein tzovei’a ba’ochlin does not apply in this instance.

In conclusion

Most, but not all, authorities rule that ein tzovei’a ba’ochlin, at least when one is using something that is usually not considered to be a pigment. For example, Rav Shelomoh Zalman Auerbach (Shulchan Shelomoh to 320:19) rules that one may add syrup (petel) to water on Shabbos, even if the syrup contains food coloring that adds no taste, since the purpose is to make the beverage attractive for people to drink. However, someone desiring a specific variety of petel, because of an affinity for its particular color, should not mix it on Shabbos. It seems that this is not adding color to encourage people to drink the beverage, but it is considered producing a particular shade for aesthetic reasons.

Hashkafah

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly assume 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 melacha, which implies work with purpose and accomplishment. On Shabbos, we refrain from altering the world with our own creative acts and, instead, emphasize Hashem’s all-encompassing role (Rav Hirsch’s Commentary to Shemos 20:11).

Our current discussion provides an excellent example to prove this point. Whether someone violates the Shabbos melacha of dyeing is not at all dependent on how hard he worked, but on abstract principles that determine whether this act is considered a creative act of man or not. Thus, understanding the laws of tzovei’a on Shabbos provides greater insight into how the true Builder and Creator of the world wants us to understand the beauty of Shabbos.

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Chol Hamo’eid – Weekday or Yom Tov?

Question #1: My shoes tore on Yom Tov. May I have them repaired on Chol Hamo’eid?

Question #2: The supermarket has something on sale on Chol Hamo’eid that I need for after Yom Tov. May I purchase it?

Question #3: I am visiting my parents in Chutz La’aretz for Yom Tov. I know that cooking on Chol Hamo’eid is permitted only for Yom Tov and Chol Hamo’eid. Does the fact that I must keep two days of Yom Tov while in Chutz La’aretz permit me to cook on Chol Hamo’eid for their Simchas Torah?

Question #4: Someone told me that Chol Hamo’eid is sometimes stricter than Shabbos. How can that be?

Answering these shaylos provides an opportunity to discuss the important and complicated halachos of Chol Hamo’eid. As the Gemara (Mo’eid Katan 12a) points out, the halachos of Chol Hamo’eid are hard to categorize. Therefore, although a short article cannot possibly explain all the halachos of Chol Hamo’eid, I will present many of the principles and provide a basis for each individual to ask his or her own shaylos.

The Gemara (Chagigah 18a) implies that working on Chol Hamo’eid is forbidden min haTorah. Indeed, observing Chol Hamo’eid is included in the mitzvah of keeping Yom Tov, which is testimony of Hashem’s special relationship with the Jewish people (Pesachim 118a with Rashbam).

The Torah describes four mitzvos as an “Os,” a sign of Hashem’s relationship with us: Bris Milah, Shabbos, Yom Tov (including Chol Hamo’eid) and Tefillin. Because Chol Hamo’eid is included in this very special category, Jews should treat Chol Hamo’eid with great respect. Indeed, the Gemara states that disregarding the kedusha of the Yomim Tovim, including Chol Hamo’eid, is like idolatry (Pesachim 118a with Rashbam). Some commentators explain that this includes even someone who fails to serve special meals in honor of Chol Hamo’eid (Bartenura, Avos 3:11). Observing Chol Hamo’eid appropriately attests to our special relationship with Hashem.

DEFINING WORK ON CHOL HAMO’EID

Chol Hamo’eid is an unusual holiday. On the one hand it is Yom Tov, and we may not engage in many melacha activities. On the other hand, we may do many activities that enhance the celebration of Yom Tov.

The laws determining what is permitted and what is prohibited on Chol Hamo’eid are very detailed and technical. What really governs whether something is permitted on Chol Hamo’eid or not? The Gemara explains that the Torah prohibits doing some melachos on Chol Hamo’eid, yet “passed on to Chazal the rules of what melacha is prohibited and what is permitted” (Chagigah 18a).

What does this mean? Is the foundation of this mitzvah min haTorah, or is it miderabbanan? How could the Torah create a prohibition and “pass on to Chazal” what is prohibited?

Here are three basic interpretations of this Gemara:

1. Some rishonim (Tosafos, Chagigah 18a) explain that melacha on Chol Hamo’eid is an asmachta, meaning something the Torah implies that it does not want us to do, but does not expressly forbid (see Ritva, Rosh Hashanah 16a). According to this approach, the Torah did not want Bnei Yisroel to work on Chol Hamo’eid, but never prohibited it. Thus, when the Gemara implies that melacha on Chol Hamo’eid is prohibited min haTorah, it is presenting the Torah’s sentiment, not a commandment. Working on Chol Hamo’eid violates the spirit of Yom Tov, but does not violate the letter of the law. Chazal then implemented the Torah’s sentiment as law, by forbidding certain melachos on Chol Hamo’eid. Since Chazal created the prohibition, they also created the rules, prohibiting some activities and permitting others.

2. Other rishonim explain that the details of Chol Hamo’eid law are part of Torah Shebe’al Peh that Hashem gave Moshe Rabbeinu at Har Sinai for him to transmit orally (Ritva, Mo’eid Katan 2a). Thus, someone who violates the laws of Chol Hamo’eid is violating a Torah prohibition, just as someone who violated any other interpretation of a Torah law that is transmitted to us through Chazal.

3. A third interpretation is that although the Torah prohibited melacha on Chol Hamo’eid, it delegated to Chazal the power to decide what to prohibit and what to permit. Thus, even though Chazal formulated the rules that govern Chol Hamo’eid, someone who violates them abrogates Torah law (Rashi, Chagigah 18a).

Whether the prohibition of melacha is min haTorah or only miderabbanan, the purpose of Chol Hamo’eid is to devote one’s time to learning Torah (Yerushalmi, Mo’eid Katan 2:3). In addition, ceasing from certain melachos elevates Chol Hamo’eid above ordinary weekdays (Rambam, Hilchos Yom Tov 7:1).

This last reason is a theme that lies behind the complex details of the laws of Chol Hamo’eid: we desist from activity that detracts from the purpose of Yom Tov. For this reason, Chazal prohibited some activities on Chol Hamo’eid that are not necessarily melacha, but nonetheless detract from the Yom Tov experience. These prohibited activities include:

1. Commerce that is not necessary for the festival.

2. Moving to a new residence.

COMMERCIAL ACTIVITY

Chazal prohibited business activity on Chol Hamo’eid, unless it is to enhance the festival or to prevent financial loss (Mo’eid Katan 10b). Even business that is permitted should be conducted in a discreet way that does not disturb kedushas Yom Tov (Mishnah, Mo’eid Katan 13b). Thus, Chazal ruled that a clothing store may sell clothes to be worn on the festival, but that its main door to the street should be closed. If it has two doors to the street, one may be open and the other should be closed, in order to demonstrate that today is Chol Hamo’eid (Gemara ad loc.; Shulchan Aruch, Orach Chayim, 539:11).

A store selling only perishable food items may remain open in the usual manner, since everything purchased there is for Chol Hamo’eid and Yom Tov (Shulchan Aruch, Orach Chayim, 539:10).

Thus, according to the Gemara and Shulchan Aruch, a Jew may not open his store for business as usual on Chol Hamo’eid (see Shu”t Chasam Sofer #1, at end). In the modern world, this is a hardship for business owners who may lose regular customers to their competitors who do not observe Chol Hamo’eid. The poskim consider loss of regular customers as a davar ha’avud that allows the business to make some accommodations. Details of this halacha are discussed by the poskim, and each store owner should ask his rav what to do (see Biur Halacha 539:5).

MOVING

Although one could, theoretically, change dwellings in a way that involves no melacha, the move itself is very strenuous and distracting. Therefore, Chazal forbade moving on Chol Hamo’eid (Mishnah, Mo’eid Katan 13a). Sometimes, moving results in an enhancement of Yom Tov, under which circumstances Chazal permitted it. Again, if someone feels that his particular circumstances may be included, he should ask his rav.

EASY WORK

On the other hand, one is permitted to do melacha that does not detract from the atmosphere of Chol Hamo’eid. Therefore, Chazal permitted moving muktzah items on Chol Hamo’eid (Tosafos, Shabbos 22a s. v. Sukkah), since this does not disturb the purpose of the day. Similarly, many poskim permit performing an actual melacha if it involves little effort, even if it does not fulfill any festival purpose (Terumas Hadeshen #153). According to these opinions, one may strike a match or take a photograph on Chol Hamo’eid, even if no festival need is involved. There are poskim who dispute this and permit such activities only to fulfill a festival need (see Shu”t Radbaz #727).

FOOD PREPARATION

Chazal permitted activities that enhance Chol Hamo’eid and Yom Tov, such as cooking and shopping for Yom Tov and traveling for festival purposes. One may grind, select, knead and perform other standard kitchen activities for Yom Tov or Chol Hamo’eid meals, but should not prepare for after Yom Tov.

This presents us with a problem that many people overlook. Since one may not cook on Chol Hamo’eid for after Yom Tov, someone living in Eretz Yisroel who observes one day of Yom Tov may not cook on Chol Hamo’eid for one’s Chutz La’aretz guests the food for Acharon shel Pesach or Simchas Torah of Chutz La’aretz, because these days are no longer Yom Tov for a resident of Eretz Yisroel. Thus, one is cooking on Chol Hamo’eid for after Yom Tov. This can result in an interesting problem. The visiting guests need to be served a special Yom Tov meal on the evening of Acharon shel Pesach or their Simchas Torah, yet the host/hostess, who lives in Eretz Yisroel, may not cook this meal on Chol Hamo’eid.

This problem has a simple solution, if one plans in advance. One can either wait until after Yom Tov is over to begin cooking for the Chutz La’aretz guests, or one may cook a lot on Chol Hamo’eid for Shemini Atzeres (called Simchas Torah in Eretz Yisroel) or the Seventh day of Pesach, making sure to serve something from each course on the Eretz Yisroel’s Simchas Torah (Shemini Atzeres) or Shvi’i shel Pesach. Then one serves the “leftovers” on the last day.

MAASEH HEDYOT, UNSKILLED WORK

Chazal permitted making and repairing items that are needed on Chol Hamo’eid, provided one does not use a skilled method (meleches uman) to do so. For example, one may tune an instrument, if it requires no special skills (Shu”t Shevus Yaakov #25). Shulchan Aruch (540:5) rules that one may build an animal’s trough in an unskilled way. Similarly, one may perform household repairs that serve a festival purpose in an unskilled manner (Shulchan Aruch, Orach Chayim 540:1). However, they may not be performed in a skilled way, unless a financial loss is involved (Shulchan Aruch, Orach Chayim 537:1).

Many years ago, a talmid chacham visited me on Chol Hamo’eid and noticed that one of our front steps was damaged and somewhat dangerous. Ruling that repairing the step is a meleches hedyot, he proceeded to measure the step, purchased a suitable piece of lumber and nailed it in.

However, one may not do skilled work on Chol Hamo’eid. Therefore, one may not develop film (does anybody still do this?), even for a festival purpose, since this is skilled work. However, one may use a digital camera, even though the picture “develops” on Chol Hamo’eid, since no skill is involved. Similarly, one may not repair shoes on Chol Hamo’eid, since this is skilled work. Theoretically, one may repair them in an unskilled way or with a shinui, meaning in an unusual way; however, neither of these methods is a practical way to repair shoes. As we will see later, one may not have a gentile shoemaker repair them either.

MAY I REPAIR A GARMENT FOR YOM TOV WEAR?

One may repair a torn garment in order to wear it on Yom Tov or Chol Hamo’eid, but only if one sews it in an unusual way or it is sewn by an unskilled person (Mishnah Mo’eid Katan 8b). In this instance, Chazal permitted the use of a shinui (doing something in an unusual way) for the sake of Yom Tov or Chol Hamo’eid. However, a skilled person may not sew in a normal way, even to fulfill a festival need.

Why did Chazal draw a distinction between skilled and unskilled work, and with a shinui and without? Does requiring the use of a shinui to repair a garment enhance the spirit of Yom Tov?

It appears that Chazal felt that regulating how one performs this activity reminds a person that today is Chol Hamo’eid, even while engaged in a melacha activity. This enhances the spirit of Yom Tov that should imbue all the days of Chol Hamo’eid.

“A WORKER WHO DOES NOT HAVE FOOD TO EAT”

Chazal permitted a worker who cannot provide his family with meat and wine for Yom Tov to work on Chol Hamo’eid (Biur Halacha 545:3; cf., however, the Magen Avraham 542:1, who says that only a worker who cannot provide bread for Yom Tov may work.) It is self-understood why permitting this melacha enhances Yom Tov.

DAVAR HA’AVUD, FINANCIAL LOSS

One of the situations where Chazal permitted working on Chol Hamo’eid is when financial loss will result, if the job waits until after Yom Tov. This is allowed, because otherwise a person may worry about his loss and spoil his simchas Yom Tov (Ritva, Mo’eid Katan 13a).

Another application of preventing financial loss is that one may repair a broken lock or a broken alarm system on Chol Hamo’eid (Mishnah Mo’eid Katan 11a). Similarly, someone may remove a stain from a garment that might become ruined. An employee may go to work on Chol Hamo’eid, if taking vacation will jeopardize his job. However, if he can take unpaid vacation on Chol Hamo’eid without jeopardizing his job, he may not work.

Someone may purchase an item that he will definitely need after Yom Tov, if the item is on sale during Chol Hamo’eid. Poskim conclude that this is considered a davar ha’avud (Shulchan Aruch, Orach Chayim 539:9).

Because of davar ha’avud, the Mishnah (Mo’eid Katan 2a) permits watering an irrigated field on Chol Hamo’eid, if a week without water will harm the growing produce. However, one may not irrigate a field that receives adequate rain, even though it benefits considerably from additional water. The latter situation is one of creating profit, for which I may not do melacha on Chol Hamo’eid; one may do melacha only to avoid loss and not to avoid loss of profit (Shulchan Aruch, Orach Chayim 537:1). Thus, although one may not engage in commercial activity in order to generate new business, one may service existing customers.

The rationale for distinguishing between loss and potential profit is that people become upset when they lose something they already own and this then disturbs their Yom Tov, but people are bothered much less when they lose potential profit.

LAUNDRY

Chazal prohibited laundering, shaving and haircutting on Chol Hamo’eid, precisely in order to enhance Yom Tov. In earlier days, people did their laundry and shaved only occasionally and may have postponed doing them before Yom Tov. To enhance Yom Tov observance, Chazal prohibited laundering, shaving and haircutting on Chol Hamo’eid to guarantee that people would make sure to attend to such things before Yom Tov.

Chazal permitted laundering handkerchiefs and children’s clothes, since, even if they are washed before Yom Tov, they get soiled very quickly (Mishnah Mo’eid Katan 14a; Shulchan Aruch, Orach Chayim 534:1).

Many poskim permit removing a spot from a garment on Chol Hamo’eid, contending that this was not included in the gezeirah. However, one may not have this garment dry cleaned, even at a gentile’s shop, since this would, indeed, violate the gezeirah against doing laundry. One may iron, because it is not included in the gezeirah (Shulchan Aruch, Orach Chayim 541:3). However, one may not make a new pleat, because it involves skilled work [meleches uman] (Magen Avraham 541:5).

WORK THROUGH A GENTILE

May a gentile do a type of work on my behalf on Chol Hamo’eid that Chazal prohibited me to do myself?

In general, if I may not do something myself on Chol Hamo’eid, I may not have a gentile do it, either (Mo’eid Katan 12a; Shulchan Aruch, Orach Chayim 543:1). However, if the non-Jew is a contractor paid by the job, there are some situations when I may allow him to work on Chol Hamo’eid.

WHY IS THIS CASE DIFFERENT?

When I pay someone by the job, it is halachically viewed as if he is working for himself and not for me. Therefore, when I hire a non-Jewish contractor and he chooses to work on Shabbos or Chol Hamo’eid, it is not considered that someone is working for me on these holy days. I may, therefore, allow him to work on Chol Hamo’eid, provided no one thinks that he is my employee.

Therefore, if I meet the following conditions, I need not prevent the gentile from working on Chol Hamo’eid:

1. I pay him a flat fee to complete the job, not an hourly or daily wage.

2. I hire him before Yom Tov and I do not instruct him to work on Chol Hamo’eid.

3. The gentile performs the work in a way that other Jews do not know that he is working for me. Thus, the gentile must work on his own premises and in a way and place that no one knows that he is working for a Jew.

I will explain this halacha with an actual case: Friedman’s Department Store, which is located outside a Jewish community, retains Tim McCartney as a contract gardener to maintain the lawn and hedges around the store. Must Mr. Friedman insist that his gentile gardener not work on Shabbos, Yom Tov, Chol Hamo’eid, even when it fits his regular routine?

The halacha is that Mr. Friedman may allow Tim to work on Shabbos or Yom Tov, but must insist that he refrain on Chol Hamo’eid.

HOW CAN CHOL HAMO’EID BE STRICTER THAN SHABBOS?

Since Friedman’s Department Store is not within walking distance to any Jewish community, we may assume that no observant Jew will see Tim trimming the hedges on Shabbos and Yom Tov and think that Mr. Friedman hired him to work on Shabbos or Yom Tov. Therefore, since Tim is a contractor he may do the work (Mo’eid Katan 12a; Shulchan Aruch, Orach Chayim 244:1).

However, on Chol Hamo’eid, since it is permitted to travel, a frum Jew might indeed see Tim mowing Friedman’s lawn and think that a Jew hired Tim to work on Chol Hamo’eid. Therefore, Tim may not mow the lawn or trim the hedges on Chol Hamo’eid (Mo’eid Katan 12a; Shulchan Aruch, Orach Chayim 543:2). (The irony is that he may do so on Shabbos or Yom Tov since we can assume that no frum Jew will be in this neighborhood!)

Chol Hamo’eid provides many unique opportunities to experience our special relationship with Hashem. When we observe it properly, we demonstrate the tremendous os between Hashem and us. May we always merit demonstrating Hashem’s presence amongst us and in His world!!

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Second Day of Rosh Hashanah

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Question #1: Second Day?!

“Is it universally accepted that everyone in Eretz Yisroel is required to observe two days of Rosh Hashanah?”

Question #2: Second Day Haftarah

“Why do we read the specific haftarah that we do on the second day of Rosh Hashanah?”

Question #3: Second Day of Judgment!?

“How can our tefillos refer to the second day of Rosh Hashanah as the ‘Day of Judgment,’ when we were already judged on the first day?”

Introduction:

The Torah describes Rosh Hashanah as a one-day holiday that falls on the first day of the seventh month, the date that is Rosh Chodesh Tishrei. Yet, as we all know, we observe two days of Rosh Hashanah.

Each of the opening three questions notes something anomalous concerning this concept of two days of Rosh Hashanah, although, as we will see, the answers to these questions are not closely related to one another. Before discussing the opening questions, I need to provide some introduction. Let us enter a time machine and bring ourselves back to the era when there was a functioning Sanhedrin.

Among the numerous and multifaceted responsibilities of the Sanhedrin, also called by its proper Hebrew name, the Beis Din Hagadol, was overseeing the Jewish calendar. In that era, the determination of whether Rosh Chodesh would be on the thirtieth or on the thirty-first day (counting from the previous Rosh Chodesh) was uncertain, until the head of the Sanhedrin, called the nasi, declared it such. The Beis Din did not declare the thirtieth day as Rosh Chodesh until two witnesses testified that they had seen the new moon. Only after the witnesses were cross-examined by the Beis Din, and their testimony was analyzed carefully, did the Beis Din declare the thirtieth day to be Rosh Chodesh.

(By the way, the Beis Din was quite certain as to when the new moon occurred, where it could be located in the sky and whether the testimony of the witnesses was accurate. Notwithstanding that the Beis Din had all this information, the Torah requires eyewitness testimony of a sighting of the new moon. The witnesses and the Beis Din are fulfilling a mitzvah min haTorah by using this system to “determine” the new moon, notwithstanding that no new technical information is gleaned from the witnesses’ testimony.)

During this era, anyone not within walking distance of the Sanhedrin would be uncertain whether Elul was 29 or 30 days long, and, therefore, would also be uncertain whether Rosh Hashanah is the 30th or the 31st day after Rosh Chodesh Elul. Because of this uncertainty, everyone observed two days of Rosh Hashanah. The only possible exception was the town in which the Beis Din Hagadol met, where they would be certain during Rosh Hashanah which day had been chosen.

Sometimes, even the town in which the Beis Din Hagadol met was required to observe two days Rosh Hashanah, not because of an uncertainty, but because of a takanas chachamim. The Mishnah (Rosh Hashanah 30b) explains that once, when the Beis Hamikdash still stood, the witnesses attesting to the new moon appeared in Beis Din late in the afternoon of Rosh Hashanah. By the time the Beis Din had declared that day to be Rosh Chodesh and Rosh Hashanah, the afternoon korban tamid had already been offered. Since this korban had been offered before any declaration that the day was Rosh Chodesh, the Levi’im accompanied the korban by singing the shirah of the weekday korban. Result: the shirah specific for Rosh Hashanah was not sung that day as accompaniment to the daily korban.

To make sure that this situation did not recur, Chazal instituted that, should witnesses arrive after the afternoon korban was offered, Beis Din would not accept them, thus automatically postponing Rosh Hashanah to the next day, so that the correct shirah would

 be sung on that day. Although once Beis Din knew that they would not accept witnesses, the first day was no longer Rosh Hashanah, Chazal required that it be kept as such (as a takanah) so that, in the future, people would not be lax in observing the assumed day of Rosh Hashanah.

What is significant about this takanah is that now there could be instances when Chazal declared two days of Rosh Hashanah. Until this time, observing two days of Rosh Hashanah had always been only a result of uncertainty, because of lack of local knowledge about the decision of the Beis Din. Henceforth, observing two days of Rosh Hashanah was sometimes a takanas chachamim.

We realize that all of these reasons made it impossible for local schools to send out annual Jewish calendars as fundraisers. But the schools in this era had a different and much more efficient method to raise necessary funds. This is a topic we will discuss at some time in the future.

Changes because of permanent calendar

Thus far, we have explained the historical background to the observance of two days of Rosh Hashanah. However, today we do not wait for the Sanhedrin to determine which day is Rosh Chodesh. Hillel Hanasi (not to be confused with his better-known and much earlier ancestor, Hillel Hazakein), realizing that the Roman persecutions of his time (the third century C. E.), would soon make it impossible for Sanhedrin to function in Eretz Yisroel, created a predetermined calendar. His incredibly accurate and vastly simplified calendar allowed someone equipped with paper, pencil and a reasonable faculty for numbers to calculate the calendar, until the Sanhedrin again exists. In other words, Hillel set the Jewish calendar on autopilot.

(This is not halachically preferable. Ideally, the decisions germane to the calendar should be based upon witnesses and the monthly input of the Sanhedrin. However, Hillel Hanasi’s system is permitted when using the Sanhedrin is not an option.)

With the implementation of the new calendar not dependent on month-by-month decisions of Beis Din, the following observation was raised: At this point in history, people in chutz la’aretz can calculate definitively which day is Yom Tov. If so, there should be no reason to observe two days of any Yom Tov anymore (Beitzah 4b).

The Gemara explains that a special takanah was instituted at this time in history. The Beis Din in Eretz Yisroel sent a message to those in chutz la’aretz to continue observing a second day of Yom Tov, which is usually called yom tov sheini shel galiyos, following their prior custom, notwithstanding that the reason for the observance no longer applies. Rashi explains that the reason for the new takanah is that persecutions might cause Jews to forget the information necessary to figure out the calendar. The likelihood of a Jew eating chometz on Pesach unwittingly, or violating other serious prohibitions, is reduced when keeping two days of Yom Tov. In other words, although keeping an extra day of Yom Tov was originally for a completely different concern, once the custom had been established, Chazal required the continuation of the observance, for a basically unrelated reason.

Two days of Rosh Hashanah

Now that we have plowed through this extensive introduction, we have yet to analyze why the holiday of Rosh Hashanah has two days even in Eretz Yisroel. When the determination of Rosh Chodesh was in the hands of the Sanhedrin, we understand the need to observe two days of Rosh Hashanah – people were uncertain which day had been established as Rosh Hashanah, and therefore they were required to observe both. However, now that our calendar can be calculated in advance, why should those who live in Eretz Yisroel be observing two days of Rosh Hashanah?

Indeed, the rishonim dispute whether there is a requirement to keep two days of Rosh Hashanah in Eretz Yisroel, once the calendar is on autopilot as a result of Hillel Hanasi’s new takanah.

The Rif rules that, in Eretz Yisroel, two days of Rosh Hashanah should be observed. The Baal Hama’or not only questions why this should be true, but contends that, prior to the Rif’s ruling, the practice in Eretz Yisroel had been to observe only one day of Rosh Hashanah. This was changed, he claims, when disciples of the Rif arrived in Eretz Yisroel in the twelfth century and began promulgating his opinions. They changed the minhag of observing only one day of Rosh Hashanah in Eretz Yisroel, which the Baal Hama’or contends is the correct practice.

Upon what is this dispute dependent? It appears that the Baal Hama’or was of the opinion that while the communities in chutz la’aretz requested — and were denied — permission to drop their observance of the second day of Yom Tov, this discussion did not affect those in Eretz Yisroel, even on the one Yom Tov when they observed two days, Rosh Hashanah.

However, there are allusions in the Gemara that Rosh Hashanah is now a two-day observance. The Rif, and those who followed his approach, concluded that, since at one point there had been a takanah to observe two days of Rosh Hashanah, this takanah remained in place.

Why is Yom Kippur different?

If those who live in chutz la’aretz are required to observe two days of Sukkos because of the uncertainty which day is the proper Yom Tov, should not Yom Kippur, also, be kept for two consecutive days?

The reason why Yom Kippur is treated differently is simple: for most people, fasting two consecutive days constitutes pikuach nefesh, a life-threatening situation. Just as we override Shabbos to provide medical care for someone who might be in a life-threatening situation, and we permit a person for whom fasting for even one day is life-threatening to eat on Yom Kippur, so do we consider two days of Yom Kippur observance as life-threatening for most people. Therefore, no community ever observed two consecutive days of Yom Kippur.

There is another reason to be lenient. Elul was virtually always a 29-day month. It could happen in any given year that Elul would have thirty days, and therefore Rosh Hashanah and Sukkos were observed as two days of Yom Tov. However, because of the obvious difficulty of fasting two consecutive days, the practice regarding Yom Kippur was to assume that Elul was 29 days, and that the day we call the tenth of Tishrei is the correct Yom Kippur.

Second Day Haftarah

At this point, let us examine the second of our opening questions: “Why do we read the specific haftarah that we do on the second day of Rosh Hashanah?”

The haftarah read on the second day of Rosh Hashanah is in the book of Yirmiyahu and begins with the words: Koh amar Hashem. There is no obvious allusion to Rosh Hashanah in this haftarah, yet there appears to have been a takanah of Chazal to read this haftarah on this day.

Before proceeding to discuss this question, we need to explain the history of why we read the haftarah, altogether. The early halachic authorities report two reasons for the establishment of the reading of the haftarah. According to one approach, during the period of the second Beis Hamikdash, at the times of the persecutions prior to the Chanukah story, the Seleucid Greek emperor Antiochos Epiphanes was bent on destroying Judaism. Strongly assisted by assimilated Jewish elements, called the misyavnim, literally, “those who made themselves into Greeks,” or Hellenized Jews, Antiochos banned virtually all shemiras hamitzvos, until the remnant of Torah-true Jews rebelled. Eventually, they drove his empire out of the Holy Land, which had not even been their objective.

During the persecutions that were the run-up to their rebellion, Antiochos had banned the reading of the Torah, kerias haTorah. As a response to his persecutions, Chazal implemented several takanos to retain Jewish practices. One of these takanos was the introduction of the reading of the haftarah, which were selections of Nevi’im. On Shabbos, Yom Tov and fast days, the haftarah was read in shul at the point in the prayers when the Torah should have been read (Avudraham; Levush; Tosafos Yom Tov, Megillah 3:4).

A very different reason for reading haftarah on Shabbos and Yom Tov is that an early practice was for Jews to gather daily after they completed the morning davening and study together Torah, prophets, and other Torah subjects for a considerable amount of time, before they went to work. As generations passed, it became increasingly difficult to devote this amount of time to studying Torah, and the custom was abandoned on weekdays, but still maintained on Shabbos and Yom Tov, when people did not go to work (Teshuvos Hage’onim #55; Sefer Hapardes, page 306; Shibolei Haleket #44).

According to either approach, at the time that the takanah of haftarah was initiated, the individual who was called upon to read the haftarah could choose any reading he preferred. It was recommended to read something that was associated with the Torah reading of the day, either the one that had been missed (according to the first approach) or that actually was read (according to the second).

On certain dates of the year, Chazal instituted that specific haftarah portions be read (Mishnah, Megillah 30b; Maseches Sofrim 17; Gemara Megillah 31a). Among these instructions, the Gemara (Megillah 31a) mentions that on the second day of Rosh Hashanah the haftarah should be Habein yakir li Efrayim, from the 31st chapter of the book of Yirmiyahu. Rashi notes that this posuk quotes the expressions zochor ezkerenu, “I will certainly remember,” and racheim arachamenu,“I will certainly have mercy,” both concepts that are very appropriate to Rosh Hashanah.

Peculiarity about this haftarah

To the best of my knowledge, all of Klal Yisroel includes the posuk Habein yakir li Efrayim in the haftarah of the second day of Rosh Hashanah, as mentioned in the Gemara; however, there are different ways to read this haftarah. Ashkenazic and most other practices begin the haftarah with the words, Koh amar Hashem motzo chein bamidbar, and close it with the posuk, Habein yakir li Efrayim. Virtually all customs — Ashkenazi, Sefardi, Edot Hamizrah, Italian, and Yemenite — follow this basic approach, although some communities begin the haftarah one posuk earlier.

However, all of these customs appear to be strange. Whenever the Mishnah or Gemara identifies a reading by its words, these are the first words that we recite as part of that reading. (On occasion, it is the second posuk, and the Mishnah or Gemara uses the word beginning the second posuk because the first posuk may be Vayedabeir Hashem el Moshe Leimor or a similar wording that does not identify clearly what we are to read.) However, in the instance of this haftarah, virtually all customs end with the reading of Habein yakir li Efrayim, as the last posuk.

The only custom I discovered that seems to follow the Gemara literally and, it would seem, more accurately, is the ancient Greek custom, called Minhag Romaniot (so called because it was the practice of the Jewish communities who lived under the rule of the Eastern Roman Empire, which later came to be known as the Byzantine Empire). Unfortunately, the practices of Minhag Romaniot are virtually extinct. To the best of my knowledge, there are only three congregations anywhere in the world that still follow Romaniot practice, one in Crete, a second in Turkey, and a third in New York, and none has significant observant membership that follows Minhag Romaniot.

We are forced to explain that our common custom assumes that the Gemara is requiring simply to include the posuk of Habein yakir li Efrayim as part of the haftarah for the second day of Rosh Hashanah, and the accepted custom includes several other beautiful themes mentioned by the prophet Yirmiyahu that are appropriate to Rosh Hashanah, including the unique relationship of Hashem and the Jewish people, the promise that Hashem will return us, and the moving account of Rachel’s successful beseeching Hashem on behalf of her children. The last of these themes has a special relationship with Rosh Hashanah because of the statement of the Gemara that Rachel was one of the women remembered by Hashem on Rosh Hashanah, the other two being Sarah and Chana, who are the subjects of the first day’s Torah reading and haftarah, respectively.

Second Day of Judgment!?

At this point, let us address the last of our opening questions: “How can the second day of Rosh Hashanah be called the ‘Day of Judgment,’ when we were judged already on the first day?”

As we can well imagine, we are not the first to ask this question. Allow me to provide an introduction from Tanach that will help to explain the approach presented by the Zohar:

After Shlomoh Hamech’s lengthy prayer dedicating the Beis Hamikdash, he blessed the people by reciting the following: May these words of mine with which I beseech Hashem be close to Hashem day and night, to accomplish the justice of His servant and the justice of His people, each and every day (Melachim I 8:59).

The posuk implies that there are two different types of justice, one of Hashem’s servant, the king, and the other applied to the people, as a whole. The proof that there are two types of judgment is that the word justice is repeated in the posuk. The Zohar (Parshas Pinchas) refers to these types of justice as the “upper judgment” and the “lower judgment,” and that these are performed by two different heavenly courts. The upper judgment, which is the harsher one, is performed on the first day of Rosh Hashanah and the “lower judgment,” which is softer, is performed on the second day. The Zohar states that these two judgments are “correlated” or “combined,” and are both “existent,” whatever these terms mean in Kabbalistic terminology.

Rav Dessler intimates that the difference between these two types of judgment is the extent to which a person makes serving Hashem the central focus in his life. Someone who has diverted the focus of his daily life from serving Hashem must rely on his relationship with those greater than he is. This is the “lower judgment” that this person undergoes on the second day, with a greater chance of success.

Conclusion

The Torah refers to the Yomim Tovim as mo’ed. Just as the term ohel mo’ed refers to the tent in the desert which served as a meeting place between Hashem and the Jewish people, so, too, a mo’ed is a meeting time between Hashem and the Jewish people (Hirsch, Vayikra 23:3 and Horeb).

We understand well why our calendar involves use of the solar year – after all, our seasons, and the appropriate times for our holidays, are based on the sun. But why did the Torah insist that our months follow the moon and that our holidays depend, also, on the moon’s phases and rotation? It seems that we could live fine without months that are dependent on the moon’s rotation around the earth!

An answer to this question is that the waxing and waning of the moon is symbolic of our own relationship with Hashem – which also sometimes waxes and sometimes wanes. Yet, we know that just as the moon, after its waning and almost disappearing, always renews itself, so, too, we have the capacity to grow and improve, in accordance with how much we allow Hashem into our world and into our actions.

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A Shmittah Glossary

This Shabbos is parshas Ki Savo, 10 days before Rosh Hashanah of shmittah year.

We are at the end of the sixth year of the shmittah cycle. Most chutz la’aretz residents are not that familiar with the laws of shmittah that will affect those who live in Eretz Yisroel every day next year. Actually, the laws can and do affect people living in chutz la’aretz also. This article will focus on explaining a basic glossary of shmittah-related terms.

Among the terms that we will learn are the following:

Biur

Havla’ah

Heter mechirah

Heter otzar beis din

Issur sechorah

Kedushas shvi’is

Ne’evad

Otzar beis din

Pach shvi’is

Sefichin

Shamur

Tefisas damim

First, let us discuss the basics:

Basic laws of the land

In Parshah Behar, the Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah. We are prohibited from plowing, planting or working the land of Eretz Yisroel in any way and must leave our land fallow. It is even prohibited to have a gentile work a Jew’s land (Avodah Zarah 15b), just as one may not hire a gentile to do work on Shabbos that a Jew may not do. The owner of a field or orchard must treat whatever grows on his land as ownerless, allowing others to enter his field or orchard to pick, without charge, as much as their families can use. The landowner himself also may pick as much as his family will eat (see Rambam, Hilchos Shmittah 4:1).

The landowner should make sure that others know that they may help themselves to the produce. One may not sell, in a business manner, the produce that grows on its own.

Kedushas shvi’is

The Torah declared vehoysah shabbas ha’aretz lochem le’ochlah, “the produce of the shmittah should be used only for food” (Vayikra 25:6), thereby imbuing the fruits and vegetables that grow in shmittah year with special sanctity, called kedushas shvi’is. There are many ramifications of this status, such as, the produce that grows during shmittah year should be used only for consumption and should be eaten (or drunk) only in the usual way. For example, one may not cook foods that are usually eaten raw, nor may one eat raw produce that is usually cooked (Yerushalmi, Shvi’is 8:2; Rambam, Hilchos Shvi’is 5:3). One may not eat raw shmittah potatoes, nor may one cook shmittah cucumbers or oranges. It would certainly be prohibited to use shmittah corn for gasohol or any other form of biofuel.

Contemporary authorities dispute whether one may add shmittah oranges or apricots to a recipe for roast or cake. Even though the fruit adds taste to the roast or cake, many poskim prohibit this cooking or baking, since these types of fruit are usually eaten raw (Shu”t Mishpat Cohen #85). Others permit this if it is a usual way of eating these fruits (Mishpetei Aretz page 172, footnote 10).

Similarly, juicing vegetables and most kinds of fruit is considered “ruining” the shmittah produce and is prohibited, although one may press grapes, olives and lemons, since the juice and oil of these fruits are considered superior to the fruit itself. Many contemporary authorities permit pressing oranges and grapefruits, provided one treats the remaining pulp with kedushas shvi’is. Even these authorities prohibit juicing most other fruit, such as apples and pears (Minchas Shlomoh, Shvi’is pg. 185).

Food and not feed

One may feed shmittah produce to animals only when it is not fit for human consumption, such as peels and seeds that people do not usually eat (Rambam, Hilchos Shmittah 5:5). Last shmittah, a neighbor of mine, or perhaps his turtle, had a problem: The turtle is fond of lettuce, and won’t eat grass. One may feed animals grass that grew in Eretz Yisroel during shmittah, but one may not feed them lettuce that grew during shmittah.

Jewish consumption

Shmittah produce is meant for Jewish consumption; one may not give or sell kedushas shvi’is produce to a gentile, although one may invite a gentile to join your meal that includes shmittah food (Rambam, Hilchos Shmittah 5:13 as explained by Mahari Korkos).

Although some authorities rule that there is a mitzvah to eat shmittah produce, most contend that there is no obligation to eat shmittah food – rather, the Torah permits us to eat it (Chazon Ish, Hilchos Shvi’is 14:10).

Don’t destroy edibles

One may not actively destroy shmittah produce suitable for human consumption. Therefore, one who has excess shvi’is produce may not trash it in the usual way.

Peels that are commonly eaten, such as apple peels, still have kedushas shvi’is and may not simply be disposed. Instead, we place these peels in a plastic bag and then place the bag in a small bin or box called a pach shvi’is, where it remains until the food is inedible. When it decomposes to this extent, one may dispose of the shmittah produce in the regular garbage.

Why is this true?

Once the shmittah produce can no longer be eaten, it loses its kedushas shvi’is. Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the many mitzvos where this principle applies. There are several other mitzvos where, in theory, this rule applies – meaning that the items have kedushah that governs how they may be consumed, but once they are no longer edible, this kedushah disappears. The mitzvos that this rule applies to are terumah, challah, bikkurim, revai’i and maaser sheini. However, although this rule applies to these mitzvos, in practice we cannot observe it since produce that has kedusha cannot be consumed by someone who is tamei (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11). This explains why most people are unfamiliar with the rules of kedushas shvi’is.

When eating shmittah food, one need not be concerned about the remaining bits stuck to a pot or an adult’s plate that one usually just washes off; one may wash these pots and plates without concern that one is destroying shmittah produce. However, the larger amounts left behind by children, or leftovers that people might save should not be disposed in the garbage. Instead, they can be scraped into the pach shvi’is.

Issur sechorah – commercial use

One may not harvest the produce of one’s field or tree in order to sell it in commercial quantities or in a business manner (Tosefta, Shvi’is 5:7; Rambam, Hilchos Shmittah 6:1). For example, shmittah produce may not be sold by weight or measure (Mishnah, Shvi’is 8:3), nor sold in a regular store (Yerushalmi, Shvi’is 7:1).

Tefisas damim

If one trades or sells shmittah produce, the food or money received in exchange becomes imbued with kedushas shvi’is. This means that the money should be used only to purchase food that will itself now have the laws of shmittah produce. The original produce also maintains its kedushas shvi’is (Sukkah 40b).

Havla’ah

At this point, we must discuss a very misunderstood concept called havla’ah, which means that one includes the price of one item with another. The Gemara (Sukkah 39a) describes using havla’ah to “purchase” an esrog that has shmittah sanctity, without the money received becoming sanctified with kedushas shvi’is. For example, Reuven wants to buy an esrog from Shimon; however, Shimon does not want the money he receives to have kedushas shvi’is. Can he avoid this occurring?

Yes, he may. If Shimon sells Reuven two items at the same time, one that has kedushas shvi’is and the other does not, he should sell him the item that does not have kedushas shvi’is at a high price, and the item that has kedushas shvi’is accompanies it as a gift. This method works, even though everyone realizes that this is a means of avoiding imbuing the sales money with kedushas shvi’is.

Shamur and ne’evad

According to many (and perhaps most) rishonim, if a farmer did not allow people to pick from his fields, the shmittah produce that grew there becomes prohibited (see Ra’avad and Ba’al Ha’maor to Sukkah 39a). This produce is called shamur. Similarly, many authorities prohibit consuming produce that was tended in a way that violated the agricultural laws of shmittah (Ramban, Yevamos 122a). This produce is called ne’evad.

Shmittah exports

The Mishnah (Shvi’is 6:5) prohibits exporting shmittah produce outside Eretz Yisroel. Some recognized authorities specifically permit exporting shmittah wine and esrogim, although the rationales permitting this are beyond the scope of this article (Beis Ridbaz 5:18; Tzitz Hakodesh, Volume 1 #15:4). This approach is the basic halachic reason to permit the export of esrogim that grow during shmittah next year for Sukkos, 5783. (The esrogim for this coming year will all be from the pre-shmittah crop and not involve any shmittah concerns.)

Sefichin

As explained in last week’s article, the prohibition of sefichin does not refer to perennials that do not require planting every year. Although trees and other perennials definitely thrive when pruned and cared for, most will produce even if left unattended for a year and the farmer has less incentive to violate shmittah by tending his trees.

Thus, tree fruits, nuts, strawberries and bananas do not involve the prohibition of sefichin. (If they grew in a field whose owner was not observing shmittah, they might involve the prohibition of shamur.)

Biur shevi’is

At this point in our discussion, we need to explain the concept of biur shvi’is. The word biur literally means elimination, as in biur chometz, which refers to the eradication of chometz performed each year before Pesach. One of the laws that applies to shmittah produce is that once a specific species is no longer available in the field, one can no longer keep shmittah produce from that species in one’s possession. At this point, one must perform a procedure called biur shvi’is. Although there is a dispute among the rishonim as to the exact definition and requirements of biur shvi’is, we rule that it means declaring ownerless (hefker) any shmittah produce in one’s possession (Ramban, Vayikra 25:7; cf. Rashi, Pesachim 52b s.v. mishum and Rambam, Hilchos Shmittah 7:3 for alternative approaches.) For example, let us say that I picked shmittah apricots and canned them as jam. When no more apricots are available in the field, I must take the remaining jam and declare it hefker in the presence of three people (Yerushalmi, Shvi’is 9:5). I may do this in front of three close friends who will probably not take the jam after my declaration; it is sufficient that they have the right to take possession. If someone fails to perform biur, the shmittah produce becomes prohibited.

Otzar beis din

What is an otzar beis din? Literally, the words means “a storehouse operated by beis din.” Why would a beis din be operating a storehouse? Did they need to impound so much merchandise while doing litigation? No, let me explain.

As mentioned above, the owner of an orchard may not harvest his produce for sale, and he must allow individuals to help themselves to what their family may use. But what about people who live far from the orchard? How will they utilize their right to pick shmittah fruit?

Enter the otzar beis din to help! The beis din represents the public interest by hiring people to pick and transport the produce to a distribution center near the consumer. Obviously, no one expects the pickers, sorters, truckers, and other laborers to work as unpaid volunteers; they are also entitled to earn a living. Similarly, the managers who coordinate this project are also entitled to an appropriate wage for their efforts. Furthermore, there is no reason why beis din cannot hire the owner of the orchard to supervise this massive project, paying him a wage appropriate to his significant skills and experience in knowing how to manage this operation. This is all legitimate use of an otzar beis din.

Who pays for otzar beis din services? The otzar beis din divides its costs among the consumers. The charges to the user should reflect the actual expenses incurred in bringing the products to the consumers, and may not include any profit for the finished product (Minchas Shlomoh, Shvi’is 9:8 pg. 250). Thus, otzar beis din products should cost less than regular retail prices for the same items, since there should be no profit margin. (See Yerushalmi, Shvi’is 8:3 that shvi’is produce should be less expensive than regular produce.)

Please note that all the halachos of kedushas shevi’is apply to otzar beis din produce. Also note that acquiring from an otzar beis din is not really “purchasing” since you are not buying the fruit, but receiving a distribution – your payment is exclusively to defray operating costs. Therefore, the money paid for otzar beis din produce does not have kedushas shvi’is, because it is compensation for expenses and not in exchange for the shmittah fruit (Minchas Shlomoh, Shvi’is 9:8 pg. 250).

Produce still in the possession of an otzar beis din at the time of biur is exempt from biur. The reason is that this product is still without an owner – the otzar beis din is a distribution center, not an owner. However, produce originally distributed through an otzar beis din and now in private possession must be declared hefker.

Heter otzar beis din

The modern term “Heter otzar beis din” is used pejoratively. The purpose of an otzar beis din is to service the consumer, not the producer, as I explained above. Unfortunately, unscrupulous individuals sometimes manipulate the rubric of otzar beis din to allow a “business as usual” attitude and violate both the spirit and the halacha of shmittah. If the farmer is operating with a true otzar beis din, he will allow people to enter his field and help themselves to the produce. If he bars people, then he is violating the basic laws of shmittah and his produce distribution is not according to otzar beis din principles. Similarly, if the field owner treats the produce as completely his own and charges accordingly, this contradicts the meaning of otzar beis din. These cases are disparagingly referred to as heter otzar beis din; meaning they reflect abuse of the concept of otzar beis din.

Conclusion

Those living in chutz la’aretz should be aware of the halachos of shvi’is and identify with this demonstration that the Ribbono Shel Olam created His world in six days, thereby making the seventh day and the seventh year holy.

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The Heter Mechirah Controversy

In a few short weeks, we will begin shmittah year. In preparation, I present this article.

Photo by Rodolfo Belloli from FreeImagesOLYMPUS DIGITAL CAMERA

Several shmittah cycles ago, I was working as a mashgiach for a properly run American hechsher. One factory that I supervised manufactured breading and muffin mixes. This company was extremely careful about checking its incoming ingredients: George, the receiving clerk who also managed the warehouse, kept a careful list of what products he was to allow into the plant and what kosher symbols were acceptable.

On one visit to the plant, I noticed a problem, due to no fault of the company. For years, the company had been purchasing Israeli-produced, freeze-dried carrots with a reliable hechsher. The carrots always arrived in bulk boxes, with the Israeli hechsher prominently stamped in Hebrew and the word KOSHER prominently displayed, in English. George, who always supervised incoming raw materials, proudly showed me through “his warehouse” and noted how he carefully marked the arrival date of each new shipment. I saw crates of the newest shipment of Israeli carrots, from the same manufacturer, and the same prominently displayed English word KOSHER on the box. However, the Hebrew stamp on the box was from a different supervisory agency, one without the same sterling reputation. The reason for the sudden change in supervisory agency was rather obvious, when I noted that the Hebrew label stated very clearly “Heter Mechirah.”

Let me explain the halachic issues that this product entails.

The Torah (Vayikra 25:1-7) teaches that every seventh year is shmittah and prohibits working the land of Eretz Yisroel. During that year, one may not plough, plant or work the field in any way. Furthermore, the farmer must treat whatever grows on his land as ownerless, allowing others to pick and keep his fruit. Many laws apply to the produce that grows during shmittah, including, for example, that one may not sell the produce in a business manner, nor may one export it outside Eretz Yisroel.

For the modern farmer, observing shmittah is indeed true mesiras nefesh, since, among the many other concerns that he has, he also risks losing customers who have been purchasing his products for years. For example, a farmer may be selling his citrus or avocado crop to a distributor in Europe who sells his produce throughout the European Community. If he informs his customer that he cannot export his produce during shmittah year, he risks losing the customer in the future.

Of course, a Jew realizes that Hashem provides parnasah and that observing a mitzvah will never hurt anyone. Therefore, a sincerely observant farmer obeys the Torah dictates, knowing that Hashem attends to all his needs. Indeed, recent shmittos have each had numerous miracles by which observant farmers were rewarded in this world for their halachic diligence. Who can possibly imagine what reward awaits them in Olam Haba!

Unfortunately, the carrot farmer here was not committed to this level of bitachon and, instead, explored other options, deciding to rely on heter mechirah. He soon discovered that his regular, top-of-the line hechsher would not allow this, so he found an alternative hechsher that allowed him to be lenient, albeit by clearly forewarning customers who may consider this product non-kosher. Although he realized that sales would suffer without his regular hechsher, he figured that selling some product is better than selling none.

WHAT IS HETER MECHIRAH?

The basic concept of heter mechirah is that the farmer sells his land to a gentile, who is not required to observe shmittah. Since a gentile now owns the land, the gentile may farm the land, sell its produce and make a profit. The poskim dispute whether a Jew may work land owned by a gentile during shmittah (Tosafos, Gittin 62a s.v. ein odrin, prohibits; Rashi, Sanhedrin 26a s.v. agiston, permits).

IS THIS ANY DIFFERENT FROM SELLING ONE’S CHOMETZ FOR PESACH?

Although some poskim make this comparison (Shu’t Yeshuos Malko, Yoreh Deah #53), many point out differences between selling chometz to a gentile and selling him land in Eretz Yisroel. Indeed, although the Mishnah (Pesachim 21a) and other early halachic sources (Tosefta, Pesachim 2:6) mention selling chometz to a non-Jew before Pesach, no early source mentions selling land in Eretz Yisroel to avoid shmittah (Sefer Hashmittah pg. 71). The earliest source I found discussing this possibility was an eighteenth-century responsum penned by Rav Mordechai Rubyou, the Rosh Yeshivah in Hebron at the time, who discusses the tribulations of a Jew owning a vineyard in Eretz Yisroel in that era (Shu’t Shemen Hamor, Yoreh Deah #4; this sefer was published posthumously in 1793).

HISTORY OF MODERN HETER MECHIRAH

Before explaining the halachic background to the heter mechirah question, I think it is important to understand the historical context of the shaylah.

Rav Yechiel Michel Tukachinski, one of the great twentieth-century poskim of Eretz Yisroel, describes the history and development of the use of heter mechirah. (My source for most of the forthcoming historical material is his work, Sefer Hashmittah.)

The first modern shmittah was in the year 5642 (1882), when there was a mere handful of Jewish farmers in Israel, located in Petach Tikvah, Motza and Mikveh Yisroel. The highly observant farmers in these communities were uncompromising in their commitment to keep shmittah in full halachic detail. [Apparently, at the same time, there were some Sefardi farmers in Israel whose rabbonim did allow them to sell their fields to a gentile for the duration of shmittah (see Shu’t Yeshuos Malko, Yoreh Deah #53; Shu’t Yabia Omer 3:Yoreh Deah #19:7).]

By the next shmittah, 5649 (1889), there was already a much larger Jewish agricultural presence in Eretz Yisroel. Prior to that shmittah year, representatives of the developing Israeli agricultural communities approached several prominent Eastern European gedolim, claiming that the new yishuv could not survive financially if shmittah was observed fully, and that mass starvation would result. Could they sell their land to a gentile for the duration of shmittah and then plant the land and sell its produce?

THE BEGINNINGS OF A CONTROVERSY

Rav Naftali Hertz, the rav of Yaffo, who also served as the rav of most of the agricultural communities involved, directed the shaylah to the gedolei haposkim of the time, both in Israel and in Europe. The rabbonim in Europe were divided, with many prominent poskim, including Rav Yehoshua Kutno, Rav Yosef Engel and Rav Shmuel Mahliver, approving the sale of the land to non-Jews as a hora’as sha’ah, a ruling necessitated by the emergency circumstances prevailing, but not necessarily permitted in the future. They permitted the heter mechirah, but only with many provisos, including that only non-Jews perform most agricultural work. On the other hand, many great European poskim prohibited this heter mechirah, including such luminaries as the Netziv (Rav Naftali Tzvi Yehudah Berlin, the Rosh Yeshivah of the preeminent yeshiva of the era in Volozhin, Lithuania), the Beis Halevi (3:1; Rav Yosef Dov Halevi Soloveichek), the Aruch HaShulchan (Rav Yechiel Michel Epstein) and Rav Dovid Karliner.

Rav Yitzchak Elchanan Spector, the rav of Kovno, Lithuania, whom many viewed as the posek hador, ruled that Rav Hertz could perform the sale and instructed him to have the great poskim of Yerushalayim actuate the sale.

This complicated matters, since the Ashkenazi rabbonei Yerushalayim universally opposed the heter mechirah and published a letter decrying it stridently. This letter, signed by the two rabbonim of Yerushalayim, Rav Yehoshua Leib Diskin and Rav Shmuel Salant, and over twenty other gedolim and talmidei chachamim, implored the farmers in the new yishuv to keep shmittah steadfastly and expounded on the Divine blessings guaranteed them for observing shmittah. The letter also noted that Klal Yisroel was punished severely in earlier eras for abrogating shmittah (see Avos Chapter 5). As Rashi (Vayikra 26:35) points out, the seventy years of Jewish exile between the two batei hamikdash correspond to the exact number of shmittos that were not observed from when the Jews entered Eretz Yisroel until the exile. The great leaders of Yerushalayim hoped that if Klal Yisroel observed shmittah correctly, this would constitute a collective teshuvah for the sins of Klal Yisroel and would usher in the geulah.

Rav Hertz, who had originally asked the shaylah, was torn as to what to do. Although he had received letters from some of the greatest poskim of Europe permitting the mechirah, the poskei Yerushalayim adamantly opposed it. He decided not to sell the land himself, but arranged mechirah for those who wanted it through the Sefardi rabbonim in Yerushalayim, who had apparently performed this mechirah in previous years.

What happened? Did the Jewish farmers observe the shmittah as instructed by the rabbonei Yerushalayim, or did they rely on heter mechirah? Although the very committed farmers observed shmittah according to the dictates of the gedolei Yerushalayim, many of the more marginally observant farmers acceded to the pressure and relied on heter mechirah. Apparently, many farmers were subjected to considerable financial and social pressure to evade observance of shmittah.

Prior to shmittah year 5656 (1896), Rav Hertz again considered what to do in the coming shmittah and approached the rabbonei Yerushalayim. This time, both Rav Shmuel Salant and Rav Yehoshua Leib Diskin approved the mechirah and even suggested to Rav Hertz how to arrange this mechirah in a halachically approved fashion.

WHAT CHANGED?

Why were the very same rabbonim who vehemently opposed the mechirah seven years earlier not opposed to it this time? Initially, these rabbonim felt that since we had now merited returning to Eretz Yisroel, we should make sure to observe all the mitzvos of Eretz Yisroel without compromise, and evading shmittah with heter mechirah runs totally counter to this spirit. However, upon realizing that few farmers had observed the previous shmittah properly, the feeling of these great gedolim was that without the option of heter mechirah, most farmers would simply conduct business as usual and ignore shmittah completely. Therefore, it was better to permit heter mechirah, while at the same time encourage farmers not to rely on it.

Prior to the next shmittah, in 5663 (1903), Rav Hertz re-asked his shaylah from the rabbonim of Yerushalayim, Rav Shmuel Salant and the Aderes, Rav Eliyahu Dovid Rabinowitz Teumim (Rav Diskin had passed on in the meantime), since the original approval stipulated only that shmittah. These rabbonim felt that there was still a need for heter mechirah in 5663. Rav Hertz, himself, passed away before the heter mechirah was finalized, and his son-in-law, Rav Yosef Halevi, a talmid chacham of note, finalized the mechirah in his stead, following the instructions of the rabbonei Yerushalayim.

Seven years later (5670/1910), Rav Avraham Yitzchak Kook was the rav of Yaffo and continued the practice of the mechirah, while at the same time encouraging those who would observe shmittah correctly to do so. He continued this practice of performing the heter mechirah for the several subsequent shmittos of his life.

In addition, Rav Kook instituted a new aspect to heter mechirah. Prior to his time, the heter mechirah involved that the owner of the farm appointed a rav as his agent to sell the land, similar to what we usually do to arrange selling the chometz. Rav Kook added that a farmer who was not going to observe shmittah but did not appoint a rav to sell his land was included in the mechirah, since it is in his best interest to have some heter when he works his field, rather than totally desecrating the Holy Land in the holy year. Although there is merit in protecting the farmer from his sin, now, a practical question results that affects a consumer purchasing this farmer’s produce. If the farmer did not authorize the sale, perhaps the produce indeed has the sanctity of shmittah. For this latter reason, many individuals who might otherwise accept heter mechirah produce do not rely on this heter.

By the way, although the original heter mechirah specified that gentiles must perform all plowing, planting and harvesting, this provision is no longer observed by some farmers who rely on heter mechirah. Many farmers who rely on heter mechirah follow a “business as usual” attitude once they have dutifully signed the paperwork authorizing the sale. Indeed, who keeps the profits from the shmittah produce, the Jew or the non-Jew to whom he sold his land? One can ask — is this considered a sale?

Another point raised is that, although Chazal also contended with much laxity in observing the laws of shmittah, they did not mention selling the land to evade the mitzvah. This is underscored by the fact that there are indeed precedents where Chazal mention ways to avoid observing mitzvos. For example, the Gemara mentions methods whereby one could avoid separating maaser, for those who want to evade this mitzvah, although Chazal did not approve doing so. Furthermore, when Hillel realized that people were violating the halachos of shmittas kesafim, he instituted the pruzbul. Yet, no hint of avoiding shmittah by selling land to a gentile is ever mentioned, thus implying that there is halachic or hashkafic difficulty with this approach (Sefer Hashmittah pg. 82).

SELLING ERETZ YISROEL

In addition to the question of whether one should evade performing a mitzvah of the Torah, the issue of heter mechirah involves another tremendous halachic difficulty. How can one sell any land of Eretz Yisroel, when the Torah prohibits selling it to a non-Jew (Avodah Zarah 20a), and Chazal prohibit even renting the land (Mishnah, Avodah Zarah 20b)?

Different poskim have suggested various approaches to avoid this prohibition. Some contend that selling land temporarily, with an expressed condition that it return to the owner, preempts the violation (Shu’t Shemen Hamor, Yoreh Deah #4), while others permit the sale since its purpose is to assist the Jewish presence in Eretz Yisroel (Shu’t Yeshuos Malko, Yoreh Deah #55; Yalkut Yosef pg. 666, quoting Rav Reuven Katz, the late rav of Petach Tikvah). Others contend that the prohibition extends only to selling land to an idol-worshipper, but not to a gentile who does not worship idols (Sefer Hashmittah, pg. 74; Yalkut Yosef pg. 665, quoting Mizbei’ach Adamah), whereas still others maintain that one may sell land to a gentile who already owns land in Israel (Shabbas Ha’aretz, Mavo 12). The original contracts approved by the rabbonei Yerushalayim designed that sale to incorporate many aspects to avoid this concern (Sefer Hashemittah, pg. 75). However, each of these approaches is halachically controversial. In fact, the problem of selling the land to a gentile is so controversial that many poskim consider such a sale invalid because of the principle of ein shaliach lidvar aveirah, that transacting property through agency in a halachically unacceptable manner is invalid (Chazon Ish, Shvi’is 24:4).

Among contemporary poskim there is wide disagreement whether one may eat produce on the basis of heter mechirah. Some contend that one may, whereas others rule that both the produce and the pots used to cook this produce become non-kosher. Others follow a compromise position, accepting that the pots should not be considered non-kosher, although one should carefully avoid eating heter mechirah produce. Because of the halachic controversies involved, none of the major hechsherim in North America approve heter mechirah produce. Someone visiting Eretz Yisroel during shmittah who wants to maintain this standard should clarify his circumstances in advance.

FRUITS VERSUS VEGETABLES

Some rabbonim ruled that the fruits produced under heter mechirah may be treated as kosher, but not the vegetables. The reason for this distinction is as follows:

SEFICHIM

The Torah permitted the use of any produce that grew on its own in a field that was not worked during shmittah. Unfortunately, though, even in the days of Chazal, it was common to find Jews who deceitfully ignored shmittah laws. One practice of unscrupulous farmers was to plant grain or vegetables and market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew on their own, a prohibition called sefichim, or plants that sprouted.

Several exceptions were made, including that produce of a non-Jew’s field is not prohibited as sefichim. Thus, if the heter mechirah is considered a charade and not a valid sale, the grain and vegetables growing in a heter mechirah field are prohibited as sefichim.

WHY NOT FRUIT?

Chazal did not extend the prohibition of sefichim to fruit, because there was less incentive for a cheating farmer. Although trees definitely thrive when pruned and attended to, they will produce even if left unattended for a year. Thus, the farmer has less incentive to tend his trees.

PERENNIALS

Similarly, perennials that do not require planting every year are not included in the prohibition of sefichin. Although perennials benefit when pruned and cared for, most will produce, even if left unattended for a year, and the farmer has less incentive to violate shmittah by caring for such plants.

Thus, tree fruits, nuts, strawberries and bananas do not involve the prohibition of sefichin. If they grew in a field whose owner was not observing shmittah, they might involve the prohibition of shamur, as explained below.)

“GUARDED PRODUCE”

I mentioned above that a farmer must allow others to help themselves to the produce that grows on his trees and fields during shmittah. What is the halacha if a farmer refused to allow others access to his produce during shmittah?

The rishonim dispute whether this fruit is forbidden. Some contemporary poskim prohibit the use of heter mechirah fruit on the basis that since heter mechirah is invalid, this fruit is now considered shamur, “guarded,” and therefore forbidden. Other poskim permit the fruit, because they rule that working an orchard or treating it as private property does not prohibit its fruit (see Shu’t Igros Moshe, Orach Chayim 1:186).

BACK TO OUR CARROT MUFFINS

What about our carrot muffins? If we remember our original story, the company had unwittingly purchased heter mechirah carrots. The hechsher required the company to return all unopened boxes of carrots to the supplier and to find an alternative source. However, by the time I discovered the problem, muffin mix using these carrots had been produced bearing the hechsher’s kashrus symbol and had already been distributed. The hechsher referred the shaylah to its posek, askingwhether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error occurred and allow the customer to ask his individual rav for halachic guidance.

What would you advise?

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