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Question:

Personally, I find the different terms used in reference to matzoh very confusing: On the one hand, I have been told that if one is working on the dough constantly, one need not be concerned if more than eighteen minutes elapses before the matzoh is baked. On the other hand, I have been told that if eighteen minutes elapses, the dough becomes chometz. And then I see a product advertised as “Eighteen minute matzoh.” I thought that if it is more than eighteen-minute matzoh, it is chometz. Also, could you explain to me the advantages of hand matzoh over machine matzoh, and if there is a valid reason why some people use only shmura hand matzoh for the entire Pesach.

Answer:

In order to answer your question, it is necessary to explain the process of making matzoh. Although matzoh is the simplest of products, just flour and water, a tremendous amount of detail is involved in preparing it in a halachically correct way. We will divide our discussion into three headings: the flour, the water, and the manufacture.

The flour requirements

To fulfill the mitzvah of eating matzoh on seder night, one must be certain that the flour was “guarded” to guarantee that it did not become chometz.

It is important to clarify that there are two different halachic issues. The first factor is that one must be careful that the matzoh is baked in a way that it does not become chometz, so that one does not, G-d forbid, violate the prohibition of eating chometz on Pesach. This concern exists for all matzoh that one may consume any time during Pesach.

However, even if one is guaranteed that the matzoh is 100% free of any concerns that it has become chometz, there is an additional requirement so that the matzoh eaten at the seder fulfills the mitzvah of eating matzoh. This matzoh must be made lishmah – meaning, that one must supervise the process and be sure that the matzoh not become chometz, specifically for the sake of fulfilling the mitzvah.

The concept of lishmah

There are several mitzvos that can be performed only with an item that is made lishmah: this means that it is manufactured with the specific intention to be used for the mitzvah. These include the mitzvos of tzitzis, tefilin, mezuzah, and matzoh. Thus, for example, the leather used in the manufacture of tefilin must be tanned specifically for the kedusha of the mitzvah of wearing tefilin. For this reason, when placing the hide into the chemical solution that makes the hide into usable parchment or leather, one must state that it is being manufactured lishmah. Even a small job such as blackening the tefilin straps should be performed specifically for the sake of the mitzvah of tefilin. For this reason, prior to repainting one’s tefillin, one should state that he is doing this for the sake of the mitzvah of tefilin.

In a similar way, the manufacture of matzoh is required to be lishmah. For this reason, before beginning work in a matzoh bakery, the workers say: Kol mah she’ani oseh hayom hareini oseh lesheim matzos mitzvah, “Everything that I am doing today, I am doing for the sake of producing matzohs that will be used for the mitzvah.”

Although the Gemara (Pesachim 40a) discusses the fact that the flour used for the mitzvah of matzoh must be prepared lesheim matzos mitzvah, it does not state clearly at what stage this is necessary. Among the early poskim, there are three opinions as to the stage from which one is required to guard the flour from becoming chometz and from which one must prepare the flour lesheim matzos mitzvah: from the time of harvesting, from the time of grinding, or from the time of kneading. Shulchan Aruch rules that it is preferable to "guard" the wheat from the time of the harvest, but it is satisfactory to use wheat that was guarded only from the time of grinding. Other poskim require lishmah from the time of the harvest. In normal usage, "shmura matzoh" refers to matzoh guarded from the time of the harvest.

Harvesting lishmah

There is a dispute among Rishonim whether any act that must be performed lishmah can be performed only by a Jew, or whether it can be performed by a non-Jew who is instructed by a Jew standing over him to perform this act lishmah. This dispute has major ramifications for many mitzvos, such as preparing hides to be made into parchment for writing tefilin, mezuzos and sifrei torah, and preparing hides for manufacture into tefilin “batim” and tefilin straps, or preparing threads for manufacture into tzitzis. According to the first opinion, hide that was tanned by a non-Jew for the sake of the mitzvah is not kosher for use. According to the second opinion, if a Jew stands and instructs the non-Jew to tan the hide lishmah and remains near him, the resulting hide or parchment can be used for the mitzvah.

Based on the above dispute, some contend that a Jew should operate the controls that cause a combine to harvest the wheat to be used for shmurah matzoh.

At times, it seems that matters were simpler when wheat was harvested by hand. A friend of mine, who was born in the Communist Soviet Union, described to me how his father harvested wheat for matzoh baking with a hand-held sickle. However, even harvesting the wheat by hand under these circumstances creates its own interesting shaylah. Poskim rule that when cutting grain for matzoh in a non-Jew’s field, one should preferably not cut the grain that he himself intends to use for mitzvas matzoh (see Sdei Chemed vol. 7 pg. 377). This is because of concern that the field might have been originally stolen, and thus the matzoh baked with wheat from this field might be considered stolen matzoh, which is invalid for matzos mitzvah. There is a complicated halachic reason why this concern does not exist when harvesting wheat for someone else to use.

The water requirements: Mayim shelanu, water that remained overnight

The Gemara states that all matzoh used on Pesach must be baked exclusively with water that remained overnight, called mayim shelanu (Pesachim 42a). One should draw this water from a spring, well, or river during twilight (or immediately before) and leave it in a cool place for a minimum of one complete night to allow it to cool down (Shulchan Aruch 455:1 and commentaries). Maharil contends that it is preferred to draw the water the day before the baking, rather than draw water several days in advance (quoted by Be’er Heiteiv 455:7). The water should not be drawn or stored in a metal vessel, since metal conducts heat and thus causes the water to become warm (Magen Avraham 455:9). In addition, the water should not be drawn or stored in a vessel that has been used previously to hold other liquids (Magen Avraham ibid.). The latter vessel is not to be used out of concern that some liquid may mix with the water, and this may cause the dough to rise faster than it would otherwise. Many contemporary poskim frown on the use of tap water for matzoh baking out of of concern that the fluoride and other chemicals introduced into the water may cause the dough to rise faster (see Piskei Tshuvos 455:7).

It goes without saying that one may not use warm water for making matzohs, nor may one work in a warm area (Pesachim 42a; Shulchan Aruch 455:2). It is important to note that the requirement for mayim shelanu is not only for the matzohs eaten at the seder; all matzohs eaten the entire Pesach must be baked exclusively with mayim shelanu.

The manufacture of the matzoh

There are many halachos implemented by Chazal to guarantee that the dough does not become chometz prematurely. For example, one must wait a day or two from when the wheat is ground until it is mixed with the water (Shulchan Aruch 453:9). This is because of concern that the flour may still be warm from the friction of the grinding, and will therefore leaven too quickly. One may not knead the matzoh dough in a place exposed to the sun or in a warm area. One must be very careful that the heat from the matzoh oven does not spread to the area where the dough is kneaded or where the dough remains until it is ready to be placed inside the oven (Shulchan Aruch 459). Thus, a matzoh factory must be set up in a way that the kneading area is close enough to the oven to allow for speedy baking of the matzoh and yet be positioned in a way that the kneading area is not heated up by the oven.

Eighteen minutes

Our original question was: I have been told that, technically speaking, if one is working on the dough constantly, one need be concerned if more than eighteen minutes elapses before it goes into the oven. On the other hand, I have also been told that one may not pause once one begins to work the dough out of concern that the dough will become chometz immediately. And I have also been told that the Gemara and Shulchan Aruch state that one cannot wait more than eighteen minutes after the water is added to the flour. Which of these statements is correct?

We now have enough background information to address this question.

As strange as this answer may seem, all the above statements are correct, as we will explain. Shulchan Aruch rules that one should not leave the dough for even a moment without working it, and that if one leaves dough for eighteen minutes without working on it, the dough becomes chometz. Furthermore, Shulchan Aruch states that once the dough has become warm from working with it, it will become chometz immediately if it is left without being worked (Orach Chayim 459:2). This implies that once the dough is warm from the kneading, it becomes chometz immediately if one stops working on it. Although there are more lenient opinions regarding whether the dough becomes chometz immediately, all opinions are in agreement that one must not allow any unnecessary waiting without working on the dough (see Mishnah Berurah 459:18; Biyur Halacha ad loc.; Chazon Ish, Orach Chayim 121:16). Thus, in practical halacha, it is really a much bigger concern that the dough is kneaded constantly than whether it actually took eighteen minutes from start to finish.

Machine Matzoh

Although the use of machine matzoh for Pesach has now become almost universally accepted, it is educational to understand the dispute that existed among nineteenth-century poskim concerning eating machine-made matzohs for Pesach. When the first factories began producing machine made matzoh for Pesach use, many great poskim, including Rav Yosef Shaul Natanson, author of the multi-volume work Shaylos u’Teshuvos Sho’el u’Meishiv, were vehemently opposed to their use on Pesach. Their opposition centered primarily over the following three major issues:

1. The economic factor: There was a major concern that the introduction of the machine matzoh would seriously affect many Jewish poor, who were gainfully employed in kneading and baking matzohs. Although the problem of Jewish poor is unfortunately still with us, it is doubtful that the increased use of hand matzohs would have significant impact on their plight.

2. The chometz factor: There were major concerns whether the factories were producing matzoh that met all the above-mentioned halachic requirements. Among the concerns raised were: Is the machinery thoroughly cleaned after each run, or does there remain dough in place, stuck to it for more than eighteen minutes? Is the dough being worked constantly, or is it left to sit after it has begun to be worked?

In the contemporary world, a factory for baking matzohs can be planned and constructed in a way that a very minimal amount of dough adheres to equipment, and mashgichim can supervise that whatever dough remains can be removed swiftly. One who purchases machine-made matzoh is relying on the supervising agency or rabbi to guarantee that the operation is run in a proper fashion.

3. The lishmah factor: There is another issue involved in the manufacture of machine matzohs – Is it considered lishmah? Is the intent of the person operating an electrically-powered machine for the sake of manufacturing matzoh considered making matzohs lishmah? The same issue affects many other halachic questions, such as the spinning of tzitzis threads by machine, and the manufacture of leather for tefilin straps and batim (or parchment). There is much discussion and dispute about this issue raised in the poskim, and it is still disputed by contemporary poskim. (See Sdei Chemed, Vol. 7, pgs. 396-398; Shu”t Maharsham 2:16; Chazon Ish, Orach Chayim 6:10 s.v. vinireh d’ein tzorech; Mikra’ei Kodesh, Pesach II pgs. 11-17.) It is primarily for this reason that most halachically-concerned people today who use machine-made matzoh on Pesach still use hand-made matzoh for the seder.

Problems that emerge during the baking:

There are two very common problems that can occur while the matzoh is being baked: A matzoh that is kefula (folded) and one that is nefucha (swollen). A matzoh kefula is a matzoh folded in such a way that the area between the folds is not exposed directly to the flame or heat of the oven. This area between the folds does not bake properly, and thus, that section of the matzoh becomes chometz-dik and must be discarded (Rema 461:5). A matzoh nefucha is a matzoh that swells up, usually because it was not perforated properly (Rema 461:5 and Taz). Thus, while baking, air is trapped inside the matzoh. The matzoh looks as if it has a large bubble in it. If the swollen area is the size of a hazelnut, the matzoh should not be used (Mishnah Berurah ad loc. #34).

To avoid discovering these problems on Yom Tov, it is a good idea to check one’s matzohs before Yom Tov to be certain that none of the matzohs are kefula or nefucha. I can personally attest to having found both among the matzohs that I had intended to use for the seder. One should also verify that the bakery separated challah from the matzohs, or else be certain to separate challah before Yom Tov.

Is there an advantage in eating only shmura matzoh the entire Pesach?

There are poskim who recommend eating only shmura matzoh the entire Yom Tov. There are two reasons cited for this practice. Some are concerned that when the grain ripens, it can become chometz even while still on the stalk. By eating no matzoh other than shmura, one guarantees that this problem not occur, since shmura wheat is harvested before it is fully ripe (Biur Halacha to 453:4 s.v. Tov). A second reason for the practice of eating only shmura is to fulfill the mitzvah of eating matzoh the entire Pesach. Although there is no requirement to eat matzoh except for the seder night, one fulfills a mitzvah each time one eats matzoh during Pesach (see Baal HaMaor, end of Pesachim). Some contend that one should strive to fulfill this mitzvah with matzoh that is made lishmah from the time of harvesting. According to both approaches, this practice is a chumra only and not halachically required.

Your very own Matzoh

The halachah is that one can fulfill the mitzvah of matzoh only by eating matzoh that is your property. Thus, one cannot fulfill the mitzvah with stolen matzah. Some have the practice of being certain that they have paid for their matzoh before Pesach, in order to demonstrate that the matzoh is definitely theirs (based on Mishnah Berurah 454:15).

There is an interesting dispute between poskim whether a guest at someone else’s seder fulfills the mitzvah with matzoh that is the property of the host. Sfas Emes (commentary to Sukkah 35a s.v. bigemara asya) contends that one does not fulfill the mitzvah, unless one owns the matzoh enough that one would be able to sell it. Since a guest cannot sell the matzoh that the host is serving, Sfas Emes contends that a host must give each of his guests their matzoh as a present before they fulfill the mitzvah. However, the universally accepted practice is to follow the opinion of the Mishnah Berurah (454:15), who states that one fulfills the mitzvah with borrowed matzoh.

We should all be zocheh to eat our matzoh this year together with Korban Pesach in Yerushalayim.

Megillas Esther teaches that one of the mitzvos established by Mordechai and Esther was “matanos la’evyonim,” giving gifts to the poor. Since the megillah states one should give gifts “La’evyonim,” which is plural, we derive that one must give gifts to at least two poor people (Gemara Megillah 7b).

WHAT IS THE MINIMUM GIFT TO FULFILL THE MITZVAH?

There are several opinions regarding the minimum gift needed to fulfill the mitzvah. The Maharasha contends that one must give each person an amount significant enough to be respectable (Chiddushei Agados, Megillah 7a s.v. shadar). Some contemporary poskim rule this way.

Zera Yaakov (Shu”t #11) contends that it is sufficient if the poor person could purchase a minimum meal with the gift, which he defines as bread the size of three eggs (quoted in Pischei Teshuvah 694:1). Thus according to this opinion, one fulfills matanos la’evyonim if one gives three slices of bread to each of two poor people (or enough money for each to purchase three slices of bread).

Ritva contends that one is required to give only the value of a prutah, a copper coin worth only a few cents (Ritva, Megillah 7b; Menoras HaMaor; Shu”t Maharil #56). Mishnah Berurah (694:2) rules this way and one can certainly follow this approach.

HOW MUCH SHOULD ONE STRIVE TO GIVE?

The above amounts are indeed extremely paltry matanos la’evyonim and only define the minimum amount to fulfill the mitzvah. There are two other rules that are important:

Firstly, one should give money to every person who asks for a tzedakah donation on Purim without verifying whether he has a legitimate tzedakah need (see Yerushalmi Megillah 1:4). We will explain the details of this halacha later. (It is obvious that one should not make a major donation without verifying that the need is legitimate.)

Secondly, one should calculate how much one intends to spend for shalach manos and the Purim seudah and then designate a greater amount of money for matanos la’evyonim (Rambam, Hilchos Megillah 2:17).

MATANOS LA’EVYONIM VERSUS SHALACH MANOS

Question: Assuming that one has limited resources, which is more important to give, many gifts to the poor or many shalach manos?

One should give a greater amount of matanos la’evyonim and limit how much shalach manos he sends (Rambam, Hilchos Megillah 2:17).

IS IT BETTER TO GIVE A LOT TO A FEW POOR, OR A LITTLE TO EACH?

The Bach rules that someone with 100 gold coins to distribute for matanos la’evyonim should distribute one coin to each of 100 poor people rather than give it all to one individual because this makes more people happy (Bach 695 s.v. v’tzarich lishloach). According to Rav Elyashiv, it is better to give two large gifts that will make two aniyim happy than to give many small gifts that are insufficient to make the recipients happy (quoted in Shevus Yitzchok on Purim, pg. 98).

These two Piskei halacha are not in conflict — quite the contrary, they complement one another. The mitzvah of matanos la’evyonim is to make as many poor people happy as possible. Receiving a very small gift does not place a smile on a poor man’s face, although it fulfills the minimal requirements of the mitzvah as noted above. However, both the Bach’s gold coin and Rav Elyashiv’s large gift accomplish that the poor person becomes happy. Therefore, giving each person enough of a gift to bring a smile to his face is a bigger mitzvah than giving a very large gift to one person and being unable to bring a smile to the others. Thus, the optimal way to perform the mitzvah is to make as many people happy as possible.

MAY MATANOS LA’EVYONIM COME FROM MAASER FUNDS?

The minimal amount that I am required to give may not be from maaser funds just as one may not spend maaser money on other mitzvos (Shu”t Maharil #56; Magen Avraham 694:1). The additional money that I give may be from maaser (Magen Avraham 694:1). However, since I concluded that one is not required to give more than one perutah to each of two poor people, two perutos are worth only a few cents. Therefore, once can assume that virtually all one’s matanos la’evyonim may come from maaser money.

DO I FULFILL THE MITZVAH WITH MONEY GIVEN BEFORE PURIM?

If the poor person receives the money on Purim, one is yotzei (Be’er Heiteiv 695:7; Aruch HaShulchan 694:2). Therefore, one can fulfill the mitzvah by mailing a contribution if one is certain that the poor person will receive it on Purim. If the poor person receives the money before Purim, one is not yotzei (Magen Avraham 694:1).

Similarly, one does not fulfill the mitzvah of matanos la’evyonim if the ani does not receive the money until after Purim.

DO I FULFILL MATANOS LA’EVYONIM BY DONATING MONEY TO AN ORGANIZATION?

If the organization distributes the money to the poor on Purim, I can perform my mitzvah this way.

DOES GETTING A TAX DEDUCTION PRECLUDE ME FROM FULFILLING MATANOS LA’EVYONIM?

If I donate the money through an institution that will distribute the money on Purim, I can fulfill the mitzvah and also deduct the donation from my tax liability.

CAN I FULFILL THE MITZVAH BY CHECK?

If the poor person can convert the check into cash or food on Purim, then I fulfill the mitzvah (Shvus Yitzchok pg. 99, quoting Rav Elyashiv).

DOES MY WIFE NEED TO GIVE HER OWN MATANOS LA’EVYONIM?

A woman is obligated in matanos la’evyonim (Shulchan Aruch 695:4). Magen Avraham states “I did not see that people are careful about this, possibly because this rule applies only to a widow or other woman who does not have a husband but that a married woman fulfills her obligation by having her husband distribute for her. However, one should be more machmir.” Thus according to the Magen Avraham, a woman should distribute her own money to the poor. It would be acceptable for a husband to tell his wife, “I am giving matanos la’evyonim specifically on your behalf,” but it is better if he gives her the money for her to distribute or gives the money to a shaliach to be zocheh for her, and then gives the money to the ani. Although most poskim follow the Magen Avraham’s ruling, some rule that a married woman fulfills the mitzvah when her husband gives, even without making any special arrangements (Aruch HaShulchan 694:2), and others contend that a married woman has no responsibility to give matanos la’evyonim (Pri Chodosh, quoting Maharikash).

MUST I GIVE MONEY?

No. One fulfills the mitzvah by giving the poor either food or money (Rambam). However, one should give the poor person something that he can use to enhance his celebration of Purim (see Pri Megadim, Mishbetzos Zahav 694:1).

MUST THE POOR PERSON USE THE MONEY FOR PURIM?

No. The poor person may do whatever he wants with the money (see Gemara Bava Metzia 78b).

MAY ONE FULFILL THE MITZVAH AT NIGHT?

One does not fulfill the mitzvos of matanos la’evyonim, shalach manos, or the Purim meal if they are performed at night (see Machatzis HaShekel 694:1).

HOW POOR MUST A PERSON BE TO QUALIFY FOR MATANOS LA’EVYONIM?

The Mishnah (Peah 8:8) states that someone who owns less than 200 zuz qualifies to collect most of the Torah’s gifts to the poor, including maaser ani, the second tithe reserved for the poor, and peah, the corner of the field left for them. What is the modern equivalent of owning 200 zuz? Contemporary poskim rule that someone whose income is insufficient to pay for his family’s expenses qualifies as a poor person for all halachos including matanos la’evyonim. This is assuming that he does not have enough income or savings to support his family without selling basic essentials (Piskei Teshuvos 694:2).

DOES A POOR PERSON HAVE A MITZVAH OF GIVING TO THE POOR?

Does the mitzvah of matanos la’evyonim apply to the poor? Is there an easy way for him to perform it?

The Tur (694) states that “Chayov kol adam litein matanos la’aniyim,” “Every person is obligated to give matanos la’evyonim.” What is added by emphasizing “kol,” everyone? The Bach explains that this emphasizes that even a poor person, who is himself a tzedakah recipient, must also give.

Is there an inexpensive way for a poor person to give matanos la’evyonim?

Yes, he can give part of his seudas Purim to another poor person and the other poor person reciprocates. Thereby, they both fulfill matanos la’evyonim (Mishnah Berurah 694:2). Also, note that according to what I concluded above, a poor person can give a quarter to each of two other paupers and thereby fulfill the mitzvah.

MAY ONE USE MONEY COLLECTED FOR MATANOS LA’EVYONIM FOR A DIFFERENT PURPOSE?

One may not use money collected for matanos la’evyonim for a different tzedakah (Gemara Bava Metzia 78b). This is because the people who donated the money expect to fulfill two mitzvos with their donation: tzedakah and the special mitzvah of matanos la’evyonim. Thus, if one uses the money for a different tzedakah purpose, they fulfilled the mitzvah of tzedakah, but not the mitzvah of matanos la’evyonim.

If someone decided to give money for matanos la’evyonim, he is required to give it for this purpose even if he did not say so (Mishnah Berurah 694:6, quoting Hagahos Ashri).

PURIM VERSUS SHUSHAN PURIM

Do residents of Yerushalayim and other ancient walled cities who observe Purim on the fifteenth of Adar (often referred to as “Shushan Purim”) fulfill the mitzvah of matanos la’evyonim by giving to the poor who observed Purim the day before? Do people who observe Purim on the Fourteenth fulfill the mitzvah by giving to the poor of Yerushalayim when it is not yet Purim for them? These are good questions that are debated by contemporary poskim.

In the words of the Rambam (Hilchos Megillah 2:17), “It is more important to provide more gifts to the poor than to have a more lavish Purim seudah or send more shalach manos. This is because there is no greater and honored joy than bringing happiness to orphans, widows and the needy. Someone who makes the unfortunate happy is likened to Hashem’s Divine Presence, as the pasuk says: ‘He who revives the spirit of the lowly and brings to life the heart of the crushed,’” (Yeshayah 57:15).

In the year 5017 (1257), several hundred Baalei Tosafos, led by Rav Yechiel of Paris, left Northern France on a journey to Eretz Yisrael. Rav Eshtori HaParchi, who lived two generations later, records a fascinating story he heard when he went to Yerushalayim to have his sefer, the Kaftor VaFarech, reviewed by a talmid chacham, named Rav Baruch. Rav Baruch told him that Rav Yechiel had planned to offer korbanos upon arriving in Yerushalayim! Rav Eshtori writes that he was too preoccupied with his sefer at the time to realize that there were several halachic problems with Rav Yechiel’s plan.^[1] In Kaftor VaFarech, he mentions some of his own concerns; in addition, later poskim discuss many other potential difficulties. Among the concerns raised is identifying several of the materials necessary for the kohanim’s vestments.

Vestments of the kohen

The Torah describes the garments worn by the kohanim in the Beis HaMikdash as follows: “Aharon and his sons shall don their belt and their hat, and they (the garments) shall be for them as kehunah, as a statute forever."^[2] The Gemara^[3] deduces, “When they wear their special vestments, they have the status of kehunah. When they are not wearing these vestments, they do not have this status.” This means that korbanos are valid only if the kohen offering them attires himself correctly.

The regular kohen (kohen hedyot) wears four garments when performing service in the Beis HaMikdash; three of them, his undergarment, his robe, and his turban are woven exclusively from white linen. The Torah never describes how one makes the fourth garment of the regular kohen, the avneit, or belt, but it does mention the material of the belts worn by the kohen gadol – on Yom Kippur he wears a pure linen belt, whereas his regular belt also contains techeiles, argaman, and tola’as shani, different colored materials that I will describe shortly. The Gemara cites a dispute whether the kohen hedyot’s belt also includes these special threads, or whether he wears one of pure linen.^[4] The Rambam concludes that the regular kohen’s avneit includes threads of techeiles, argaman, and tola’as shani.^[5]

Assuming that Rav Yechiel concluded that the regular kohen’s avneit also includes techeiles, argaman, and tola’as shani, his proposal to offer korbanos required proper identification of these materials, a necessary prerequisite to offering korbanos. This article will be devoted to the fascinating questions that we must resolve to accomplish this task.

What is argaman?

The Midrash Rabbah reports that argaman is the most valuable of these four threads and is the color of royal garments.^[6] The Rishonim dispute its color, the Rambam ruling that it is red, whereas the Raavad understands that it is multicolored cloth, woven either from different species or of different colored threads.^[7] The Raavad explains that the word argaman is a composite of arug min, meaning woven of different types. This approach appears to be supported by a pasuk in Divrei HaYamim^[8] that lists argavan, rather than argaman, as the material used in building the Beis HaMikdash.^[9] The word argavan seems to be a composite of two words, arug gavna, meaning woven from several colors, an approach that fits the Raavad’s description much better than it fits the Rambam’s.^[10]

The Raavad’s approach that argaman is multicolored is further supported by a comment in the Zohar^[11] that describes argaman as multicolored. However, the Radak^[12] understands the word argavan according to Rambam’s approach, and Kesef Mishneh, similarly, states that the primary commentaries followed Rambam’s interpretation. The Rekanti^[13] quotes both approaches, but implies that he considers the Raavad’s approach to be primary.

By the way, the Ibn Ezra^[14] implies that argaman might have been dyed silk rather than wool, whereas most opinions assume that it is wool.^[15] Rabbeinu Bachyei^[16] contends that silk could not have been used for the mishkan or the Beis HaMikdash, since it is manufactured from non-kosher species. This is based on the Gemara’s^[17] statement that non-kosher items may not be used for mitzvos. I will discuss this point further below.

Is argaman a color or a source?

It is unclear if the requirement to use argaman thread means that the thread used for the Kohen’s belt must be a certain shade of color, or whether it must be dyed with a specific dye. Rambam implies that the source for the argaman color is irrelevant. These are his words:

“Argaman is wool dyed red, and tola’as shani is wool dyed with a worm.”^[18] (The Rambam explains elsewhere what he means when he says “dyed with a worm.” It should also be noted that the Hebrew word tola’as, which is usually translated worm, may include insects and other small invertebrates.) The Rambam’s wording implies that the source of the argaman dye is immaterial, as long as the thread is red. Thus, there may be no halachically required source for the dye, provided one knows the correct appearance of its shade.

Tola’as shani

One of the dye colors mentioned above is tola’as shani. In addition to its use for dyeing the kohen’s belt and some of the kohen gadol’s vestments, tola’as shani was also used for some of the curtains in the mishkan and in the Beis HaMikdash, in the manufacture of the purifying ashes of the parah adumah^[19] and for the purifying procedure both of a metzora and of a house that became tamei because of tzaraas.^[20]

Tola’as shani is a red color.^[21] This presents us with a question: According to the Rambam that argaman is red, the source of which is irrelevant, what is the difference between the shade of argaman and that of tola’as shani? The Radak explains that they are different shades of red, although he provides us with no details of this difference.^[22]

Must tola’as shani be derived from a specific source, or is it sufficient for it to be a distinctive shade of red, just as I suggested above that argaman is a color and not necessarily of a specific dye source?

The words of the Rambam that I quoted above answer this question: “Argaman is wool dyed red, and tola’as shani is wool dyed with a worm.” These words imply that although argaman can be used from any source that produces this particular color, tola’as shani must be from a very specific source.

A worm-based dye

Can the pesukim help us identify what is tola’as shani? The description of tola’as, which means worm, implies that the source of this dye is an invertebrate of some type. For this reason, some authorities seem to identify tola’as shani as “kermes,” a shade of scarlet derived from scale insects or some similar animal-derived red color.^[23] Support for this approach could be rallied from a pasuk in Divrei HaYamim,^[24] which describes the paroches (curtain) that served as the entrance to the kodoshei hakodoshim, the Holy of Holies of the Beis HaMikdash, as woven from the following four types of thread: techeiles, argaman, karmil, and butz, which is linen. The Torah, in describing the same paroches, refers to it as made of techeiles, argaman, tolaas shani, and linen. Obviously, karmil is another way of describing tola’as shani.^[25] Similarly, in Divrei HaYamim II,^[26] when describing the artisans sent by the Tyrian King, Hiram, to help his friend King Shelomoh, the pasuk mentions karmil as one of the materials in place of tola’as shani. Thus, karmil, a word cognate to kermes, seems to be a synonym for tola’as shani.^[27]

However, as I mentioned above, Rabbeinu Bachyei takes issue with this approach, insisting that only kosher species may be used for building the mishkan and the garments of the kohanim. He bases his opinion on the Gemara^[28] that states that “only items that one may eat may be used for the work of heaven,” which teaches that only kosher items may be used in the manufacture of tefillin. How does this fit with the description of tola’as shani as a worm derivative?

The Rambam states that the dye called tola’as shani does not originate from the worm itself, but from a berry that the worm consumes.^[29] Thus, according to the opinion of Rambam, Rabbeinu Bachyei and others, although tola’as shani and karmil are the same, they are not from non-kosher sources, but from kosher vegetable sources.

Although this is probably the primary approach we would follow in a halachic decision, we cannot summarily dismiss those who identify tola’as shani as kermes or a different invertebrate-based dye. Although Rabbeinu Bachyei objects to a non-kosher source for tola’as shani, those who accept that its source is kermes have several ways to resolve this issue. One possibility is that this halacha applies only to a substance used as the primary item to fulfill the mitzvah, but not if it serves only as a dye.^[30]

Others resolve the objection raised by Rabbeinu Bachyei by contending that the color derived from these non-kosher creatures may indeed be kosher. Several different reasons have been advanced to explain this approach. Some contend that this coloring is kosher, since the creatures are first dried until they are inedible, or, because a dead insect dried for twelve months is considered an innocuous powder and no longer non-kosher.^[31] (The halachic debate on this issue actually concerns a colorant called carmine red that is derived from a South American insect called cochineal. This color, which is derived from the powdered bodies of this insect, is used extensively as a “natural red coloring” in food production. To the best of my knowledge, all major contemporary kashrus organizations and hechsherim treat carmine as non-kosher, although I have read teshuvos contending that it is kosher and know that some rabbonim of the previous generation considered it to be kosher.)

A similar approach asserts that kermes dye is kosher, since it is no longer recognizable as coming from its original source.^[32] This approach is based on a dispute among early poskim as to whether a prohibited substance remains non-kosher after its appearance has been completely transformed. The Rosh^[33] cites Rabbeinu Yonah, who permitted using musk, a fragrance derived from the glands of several different animals, as a flavor, because it has been transformed into a new substance that is permitted. The Rosh disputes Rabbeinu Yonah’s conclusion, although in a responsum^[34] he quotes Rabbeinu Yonah’s approach approvingly.^[35]

It is noteworthy that this dispute between the Rosh and Rabbeinu Yonah appears to be identical to a disagreement between the Rambam and the Raavad^[36] in determining the source of the mor, one of the ingredients burnt as part of the fragrant ketores offering in the Beis HaMikdash.^[37] The Rambam rules that mor is musk, which he describes as "the blood of a well-known undomesticated (in Hebrew, chayah)^[38] Indian species of animal." (Although the Rambam calls it blood, he probably means a body fluid.) The Raavad disagrees, objecting that the blood of a chayah would not be used in the construction of the Beis HaMikdash, even if it were to be derived from a kosher species, certainly from a non-kosher one. In explaining the Rambam’s position, Kesef Mishneh contends that once musk is reduced to a powder that bears no resemblance to its origin, it is kosher. Thus, the disagreement between the Rambam and the Raavad as to whether a major change of physical appearance changes the halachos of a substance may be identical to the dispute between Rabbeinu Yonah and the Rosh. It turns out that the Radak, who implies that tola’as shani derives from non-kosher invertebrates, may also accept the approach of Rabbeinu Yonah.

Some authorities have a different approach that would explain how tola’as shani may be acceptable for Beis HaMikdash use, even if it derives from a non-kosher source. They contend that the rule prohibiting the use of non-kosher items applies only to tefillin and other mitzvos that utilize kisvei hakodesh, holy writings, but does not apply to most mitzvos or to items used in the Beis HaMikdash.^[39] This approach requires some explanation.

The Gemara states that tefillin may be manufactured only from kosher substances, deriving this halacha from the following verse: Lemaan tihyeh toras Hashem b’ficha, in order that the law of Hashem should always be in your mouth;^[40] i.e., whatever is used for the Torah of Hashem must be from kosher items that one may place into one’s mouth. In order to resolve a certain question that results from the Gemara’s discussion, some authorities explain that this halacha refers only to items that have words of the Torah or Hashem’s name in them, such as tefillin, mezuzos or a sefer torah, but does not include the garments worn by the kohen hedyot in the Beis HaMikdash, which do not contain Hashem’s name.^[41] (The halacha requiring kosher substances would still apply to the tzitz and the choshen, garments of the kohen gadol, both of which carry Hashem’s name.)

Techeiles

The next material or shade we need to identify, the techeiles, is also a factor in the wearing of our daily tzitzis. Indeed, the Torah requires us to wear techeiles threads as part of this mitzvah. Nevertheless, Jews stopped wearing techeiles about 1300 to 1500 years ago, and with time, its source has been forgotten. Although the Gemara^[42] mentions a creature called chilazon, whose blood is the source of techeiles, and even discusses how to manufacture the dye, the use of techeiles ended some time after the period of the Gemara. The Midrash states that “now we have only white tzitzis, since the techeiles was concealed,”^[43] which implies that Hashem hid the source for the techeiles. Indeed some poskim interpret the writings of the Arizal as saying that techeiles should not be worn until moshiach comes.^[44]

Attempts to identify the techeiles

In 5647 (1887), the Radziner Rebbe, Rav Gershon Henoch Leiner, zt”l, published a small sefer, Sefunei Temunei Chol, which concluded that the mitzvah of wearing techeiles applies even today. In his opinion, the Midrash quoted above means that techeiles will become unavailable, but we are both permitted and required to wear it. Based on his analysis of every place the Gemara mentions the word chilazon, the Radziner drew up a list of eleven requirements whereby one could identify the chilazon, and concluded that if one locates a marine animal that meets all these requirements, one may assume that it is the chilazon. He then traveled to Naples, Italy, to study marine animals that might fit all the descriptions of techeiles, and concluded that a squid-like creature called the cuttlefish, which in many languages is called the inkfish, is indeed the chilazon from which one produces techeiles. The Radziner then published his second volume on the subject, Pesil Techeiles, in which he announced his discovery of the chilazon and his proofs as to how the cuttlefish can be identified as the chilazon. Subsequently, the Radziner published a third volume, Ayn HaTecheiles, to refute those who disagreed with him.

The Radziner attempted to convince the great poskim of his generation to accept his thesis, particularly Rav Yitzchok Elchonon Spector (the Rav of Kovno and the posek hador at the time), the Beis HaLevi (then the Rav of Brisk), Rav Yehoshua Kutno (author of Yeshuos Malko, the Rav of Kutno), the Maharil Diskin (who had been Rav of Brisk and was living in Yerushalayim), and Rav Shmuel Salant (the Rav of Yerushalayim). None of these rabbonim accepted the Radziner’s proposal, although the Maharsham, the posek hador of the time in Galicia, felt that the Radziner’s approach had merit and wore a talis with the Radziner’s techeiles, although apparently only in private. Nowadays, only Radziner Hasidim and some Breslever Hasidim wear the techeiles that the Radziner introduced.

Some later authorities have attempted to identify the techeiles as being one of several varieties of sea snail, although the objections raised by the generation of poskim of the Radziner’s own time apply to these species as well. Many today feel that Murex trunculus is the source of the techeiles. Several years ago, I discussed their position and the position of their opponents.^[45] We should also note that Rashi’s understanding of the chilazon that is the source of the techeiles cannot possibly describe any variety of sea snail since Rashi describes the process of extracting the techeiles as involving squeezing out its blood by hand.^[46] One cannot squeeze the shell of a sea snail to extract its dye component – one must smash or drill through the shell to reach it.

Among the many objections to both of these identifications of the chilazon is the contention that neither the cuttlefish nor a snail could possibly be the source of the techeiles, since they are not kosher. In addition to the reasons I mentioned above, the Radziner presents a novel approach to explain why techeiles may derive from a non-kosher source. He contends that although the flesh of a non-kosher fish is forbidden min haTorah, the blood of non-kosher fish is forbidden only miderabbanan. Since min haTorah one may eat this blood, it is permitted as a source for a kosher dye.

It is noteworthy that a prominent nineteenth century posek, Rav Tzvi Hirsch Kalisher, contended that the garments of the kohen do not require chilazon as the dye source, only the color of techeiles. In his opinion, chilazon dye is only necessary for tzitzis.^[47] In Rav Kalisher’s opinion, it is sufficient to dye the threads of the avneit the correct techeiles color in order to perform the service in the Beis HaMikdash. However, not all poskim accept this interpretation, but require the specific dye source of chilazon to dye the vestments.^[48]

In review, what we know for certain is that the regular kohen (kohen hedyot) wears four garments when performing service in the Beis HaMikdash, including the avneit, or belt, which the Rambam rules includes threads of techeiles, argaman, and tola’as shani. In identifying these materials, however, we have several disputes: the first, as to whether the techeiles must be derived from chilazon for offering korbanos, or if merely dyeing clothes the appropriate color is sufficient; a second dispute, whether the chilazon has been hidden until moshiach comes, and a third dispute whether the chilazon must be kosher or not. In identifying the argaman, we are faced with a dispute between rishonim whether its color is red or a mix of different colors. And in identifying the tola’as shani, we face a dispute as to whether its source is a berry that "worms" eat or a worm of some type. All these questions will need to be resolved before we can again manufacture kosher bigdei kehunah, either by having Eliyahu Hanavi teach us how the bigdei kehunah were made, or by having the poskim of klal Yisrael determine what the halacha is.

Several earlier poskim devoted much time and energy to clarifying the correct procedures for offering korbanos, because of their intense desire to bring sacrificial offerings. Do we, too, have such a burning desire to see the Beis HaMikdash rebuilt speedily in our days? May we soon merit seeing the kohanim offering the korbanos in the Beis HaMikdash in purity and sanctity. Amen.

^[1] Vol. 1, page 101 in the 5757 edition

^[2] Shemos 29:9

^[3] Zevachim 17b

^[4] Yoma 6a, 12a, 69a

^[5] Hilchos Klei HaMikdash 8:2; cf. Rashi, Pesachim 26a s.v. Kesheirim

^[6] Naso 12:4

^[7] Hilchos Klei HaMikdash 8:13

^[8] II, 2:6

^[9] See also Daniel 5:7; Rashi on Divrei HaYamim II, 2:6

^[10] See Ibn Ezra on Shemos 25:4

^[11] Parshas Naso

^[12] Divrei HaYamim II, 2:6

^[13] Shemos 25:3

^[14] Shemos 25:4

^[15] Rambam, Hilchos Klei HaMikdash 8:13; Rashi, Shemos 25:4; 26:1; Rashbam, Shemos 25:4

^[16] Shemos 25:3

^[17] Shabbos 28a

^[18] Hilchos Klei HaMikdash 8:13

^[19] Bamidbar 19:6

^[20] Vayikra 14:4, 49

^[21] See Yeshaya 1:18

^[22] Divrei HaYamim II 2:6

^[23] See Radak on Divrei HaYamim II 2:6

^[24] II 3:14

^[25] Rashi ad loc.

^[26] 2:13

^[27] See Radak on Divrei HaYamim II 2:6

^[28] Shabbos 28a

^[29] Hilchos Parah Adumah 3:2; see Rashi on Yeshaya 1:18 who explains it in a similar way.

^[30] Shu’t Noda Bi’Yehudah II, Orach Chayim #3

^[31] See Shu’t Minchas Yitzchak 3:96:2

^[32] Pesil Techeiles, pg. 48 in the 1990 edition

^[33] Berachos 6:35

^[34] Shu’t HaRosh 24:6

^[35] We should note that the Rosh’s descendents contend that their father wrote the Halachos after he wrote his Teshuvos, and that therefore the Halachos should be considered most authoritative. See Tur, Choshen Mishpat, at the end of Chapter 72, and the Beis Yosef, Yoreh Deah Chapter 341, quoting Rabbeinu Yehudah, the son of the Tur. However, the Perisha, Choshen Mishpat 72:35, notes that this rule is not absolute, and that some of the Rosh’s responsa were written after he wrote the Halachos.

^[36] Hilchos Klei HaMikdash 1:3

^[37] See Shemos 30:23

^[38] As I explained in a different article, on identifying what is a beheimah and what is a chayah, translating the word chayah as an "undomesticated species" is not really accurate. The halachic difference between chayah and beheimah is highly complicated and also obscure, and is certainly not dependent on whether the species can be domesticated. For example, the reindeer qualifies as a chayah notwithstanding its ability to be domesticated. In the above quoted article, I discussed whether the American bison is halachically a chayah or a beheimah. For simplicity’s sake, I used the more common and inaccurate translation here.

^[39] Shu’t Noda Bi’Yehudah 2, Orach Chayim #3; cf. Magen Avraham 586:13

^[40] Shemos 13:9

^[41] Shu’t Noda Bi’Yehudah II, Orach Chayim #3

^[42] See Menachos 42b

^[43] Midrash Tanchuma, Shelach 15; Midrash Rabbah, Shelach 17:5

^[44] Shu’t Yeshuos Malko #1-3

^[45] This article can be read at RabbiKaganoff.com

^[46] Rashi, Shabbos 75a s.v. HaPotzo

^[47] He based this approach on the wording of the Rambam in Hilchos Tzitzis 2:1-2.

^[48] Likutei Halachos, Zevachim Chapter 13, pg. 67a in the original edition

Question #1: TREMENDOUSLY APPEALING!

Yehudah presents the following dilemma: “I often feel pressured to pledge to the tzedakah appeals in shul; however, I am afraid that I will forget to pay afterwards. Is there a simple way to avoid creating a problem?”

Question #2: BORROWERS ANONYMOUS

Susan asks: “I often borrow small change from the pushkas that I keep on my window sill, but I am meticulous to return what I borrowed. Am I indeed permitted to borrow from the pushka?”

Question #3: DIVERTING ACTIVITIES

Tamar calls: I have a pushka in the house from an organization with which I have no contact. Instead, I would like to donate the money to my son’s yeshiva, to demonstrate my hakaras hatov.  May I give the money from the pushka to the yeshiva?

Answer:

In order to answer these questions, I first need to explain how a few general concepts affect the laws of tzedakah:

1. NEDER – A VOW

The Torah requires us to fulfill our vows (Bamidbar 30:3), and the consequences of neglecting this obligation are very serious (see Kesubos 72a). To avoid violating this prohibition, it is better to simply do the mitzvah involved without making a vow to commit oneself to its fulfillment (Nedarim 9a). For this reason, concerned people say “bli neder”, whenever stating something that may imply a commitment to perform a good deed. The words bli neder prevent the commitment from becoming a vow, although one is still obligated to fulfill one’s promise; simply, it does not have the stringency of a "vow" (Shu”t Shevet HaLevi 10:156:1; see also Shla’h, Torah SheBe’kesav, Parshas Matos, Derech Chayim). (In this article, I am not going to distinguish between the technical differences that exist between a neder, a vow, and a shavua, an oath; but I will refer, always, to neder.)

TZEDAKAH PLEDGES

Pledging money to tzedakah is a vow that one must fulfill. To quote the Torah:

Motza sifasecha tishmor ve’asisa ka’asher nadarta LaHashem Elokecha nedava asher dibarta bificha. Guard the utterances of your tongue and fulfill that which you vowed to Hashem, your G-d – the vow which you spoke with your mouth. (Devarim 23:24). 

The Gemara rules explicitly that tzedakah is included in the requirements of this verse (Rosh HaShanah 6a). Therefore, one is required min haTorah to redeem a pledge that one made to tzedakah. Because of this law, it is strongly advisable to make charitable commitments bli neder, so that the pledge does not assume the severity of a vow (Shulchan Aruch Yoreh Deah 203:4 and 257:4).

2. BAL TE’ACHEIR – Do not delay paying

This mitzvah prohibits delaying the redemption of a pledge, such as a commitment to offer a korban in the Beis HaMikdash. Expressing a charitable pledge requires one to fulfill it as soon as possible; failure to do so violates the prohibition of bal te’acheir (Devarim 23:22; Rosh HaShanah 6a). The Gemara notes that the requirements of bal te’acheir for a tzedakah pledge are even more exacting than they are concerning other mitzvos, such as korbanos. One who (at the time of the Beis HaMikdash) pledges a korban may wait until the Festivals (Pesach, Shavuos, and Sukkos) to offer them, since he will then be traveling to Yerushalayim anyway. (Technically, he is required to offer the korban the first Yom Tov in order to fulfill his vow, but he does not violate the lo saaseh of bal te’acheir until all three Yomim Tovim have passed.) However, since a pledge to tzedakah can easily be fulfilled as soon as one locates a poor person, one must disburse the funds at the first possible opportunity.

Thus, the mitzvah of bal te’acheir provides another reason why one’s pledges to tzedakah should be made bli neder. If someone pledged tzedakah without specifying bli neder, he/she is obligated to redeem the pledge immediately. However, if one specified that the obligation is bli neder, failing to redeem it immediately does not violate bal te’acheir.

We can now address Yehudah’s concern about responding to tzedakah appeals. His question was that he felt pressured to pledge donations and was concerned that he might forget to pay them. Ideally, he should donate without pledging, or alternatively, he can say that he is pledging with the understanding that he is not making any commitment whatsoever. (Essentially, this is disallowing his pledge.) A less preferable choice is to pledge bli neder, which assures that, should he forget to redeem his pledge, he will not have violated either the prohibition of vows or of bal te’acheir.

BORROWING FROM TZEDAKAH FUNDS

At this point, we will address Susan’s concerns about borrowing from the pushka. Her first question was: May one borrow tzedakah funds for one’s personal use? The following passage of Gemara discusses this issue:

Rabbah bar Avahu stated, “Someone who declares, ‘This sela coin shall go to tzedakah,’ may use it for his own purposes, and then later pay tzedakah a different coin” (Arachin 6a, as explained by Rashi).

Rabbah bar Avahu is teaching that, although pledging a coin to tzedakah creates a charitable vow that one must redeem, one may still use that coin and then replace it. This is true because the tzedakah coin or currency itself does not become invested with sanctity, as a result of the pledge, which would prohibit its use (Rambam, Hilchos Matanos Aniyim 8:5). In essence, declaring “this coin shall go to tzedakah” is equivalent to saying, “I hereby commit myself to donate to tzedakah an amount of money equal to the value of this coin.” The coin remains the donor’s, and he may borrow it and later replace it (see Shulchan Aruch Yoreh Deah 259:1).

The Gemara subsequently teaches that one may borrow the pledged coin only if it was not yet given to the gabbai, the tzedakah treasurer. Once the gabbai receives the money, it is tzedakah property, and one may not borrow it. Under normal circumstances, a treasurer is not authorized to lend or exchange tzedakah funds (Bava Basra 8a; Rambam, Hilchos Matanos Aniyim 8:4). One exception is when the lending or exchanging benefits the recipient of the funds (Arachin 6b; see Pischei Teshuvah, Yoreh Deah 259:4 for another exception).

LIMITED LIABILITY

By the way, the sanction to borrow pledged money is also a liability, since it sometimes makes the person responsible to replace the money if it is stolen (see Choshen Mishpat 301:6). On the other hand, in a case when one may not use tzedakah money, he is not liable in the event of its loss unless he was negligent, for example, forgetting where he put it.

WHO OWNS THE MONEY IN THE PUSHKA?

May Susan borrow from the pushka? According to what we have just learned, this depends on whether the money in the pushka already belongs to the organization or is still Susan’s property. Many authorities debated this question extensively about 150 years ago. The shaylah that spawned this literature is interesting.

HISTORICAL BACKGROUND

For the last few hundred years, many Jewish Diaspora households owned a pushka dedicated to Rabbi Meir Baal HaNes, a fund whose purpose was to provide succor for indigent Jews living in Eretz Yisrael. In a responsum dated Marcheshvan 18, 5626 (1865), Rav Mordechai Eitinga, then rav of Lvov (currently located in western Ukraine), was asked about someone who had accumulated a large sum of money in his Rabbi Meir Baal HaNes pushka and now felt that the local poor had a much greater need for these funds. Could he divert the money to local needs instead of sending it to Eretz Yisrael? Rav Eitinga discusses two issues:

(1) May money pledged to one charitable cause be diverted to a different one?

(2) Do the poor of Eretz Yisrael already own the money in the pushka?

If the answer to the first question is “yes,” and to the second question is “no,” then the money may be diverted to the local indigent. Otherwise, it must be sent to Eretz Yisrael, because each of the terms of the pledge must be absolutely fulfilled, or one is “stealing” money that already belongs to the poor of Eretz Yisroel (Shu”t Maamar Mordechai #15).

Let us follow his analysis.

DIVERTING OR A DIVERSION

Whether one may divert tzedakah money from one individual or organization to another is, indeed, a dispute among early poskim. Why should one be permitted to divert the funds? Explaining this requires that we note a new factor that the Gemara did not discuss. In Rabbah bar Avahu’s case, the donor simply declared, “This coin goes to tzedakah,” without specifying a specific individual or organization. However, what happens if someone holding a wad of hundred dollar bills declares, “I dedicate this money to the Asher Richman Hebrew Academy”? Must he contribute this amount of money to the Richman Academy, or may he afterwards decide to send it to the Pauper Yeshiva? Does halachah require him to honor a pledge to a specific organization or individual, or is he simply required to donate this amount of money to any tzedakah? If indeed the pledge is simply a generic requirement to donate this amount to tzedakah, then it should follow that one may actually contribute the funds to a different charity from what he had originally intended.

13^TH CENTURY CHUTZPAH

Early authorities discuss this question. A major posek of 13^th century Germany, the Mordechai, reports a very unusual din Torah. A pauper claimed that a wealthy individual had promised him a specific amount of money and had not paid it, whereas the rich man denied having ever pledged any money. The poor man contended that the pledge obligated the donor to pay him, and that the case was therefore no different from that of any plaintiff claiming money from a defendant who denies that he owes any. The halachah in such instances is that the defendant is required to swear an oath (shevuas heses) denying the claim. Similarly, the Mordechai (Bava Kamma #172) ruled that the affluent man was required to swear that he had never pledged any money to the pauper! (He does not report whether or not this pauper was subsequently offered a position as Public Relations Director for any major Torah institution.)

The poskim prove from this Mordechai that when one pledges money to an individual tzedakah, the particular tzedakah can demand payment. Otherwise, what claim does the pauper have on the rich man? Even assuming that the rich man pledged him money, this is merely an obligation to give tzedakah, which the affluent man may donate anywhere. If the pauper indeed has a claim, it must follow that a pledge automatically includes a debt to the individual (or cause) specified. Following this line of reasoning, money pledged to one tzedakah cannot be subsequently rerouted to a different one, however legitimate the need (Shach, Choshen Mishpat 87:51; Machanei Efrayim, Hilchos Tzedakah #7).

LOCAL OR ISRAEL?

Although not all authorities accept this position of the Mordechai (cf. Shu”t Maharit #22 and #39), many later authorities do follow his ruling (Ketzos HaChoshen, 87:21). Based on this analysis, most later authorities contend that money placed in a Rabbi Meir Baal HaNes pushka may not be given, instead, to the local poor (Shu”t Maharya HaLevi #49; Shu”t Beis Yitzchak, Orach Chayim #21).

This allows us to answer our third question asked above: “I have a pushka in the house from an organization with which I have no contact. I would like to donate the money instead to my son’s yeshiva, to demonstrate my hakaras hatov.” The answer is that, although supporting the Torah institutions that educate our children is vital, since this money has already been designated for a specific organization, one may not transfer it to a different one.

PUSHKA BORROWERS ANONYMOUS

All of this does not answer Susan’s question as to whether she may borrow money from the pushka. Even if money pledged to one institution cannot be transferred to another, until the money becomes the property of the institution, one may borrow it, as we learned before. Thus, we need to determine whether money in the pushka is already the property of the institution. Do I still have some control over it, and I may therefore borrow it, subject to the above conditions? Or, is it now the property of the tzedakah, and I may not?

This halachah depends on the following: Who owns the pushka? If I own the pushka, then placing money in the pushka requires me to donate it to tzedakah, but it is not yet their property, and I may borrow it. As I mentioned above, this situation may create liability for the funds, should they be stolen.

On the other hand, if the organization assumes that money placed in the pushka belongs to them, then I may not borrow any of that money. The reason for this is that since the pushka is their vessel, money placed inside is equivalent to being given to the gabbai, the tzedakah treasurer (based on Shulchan Aruch Choshen Mishpat 200:3). Most authorities follow this latter interpretation of the halachah.

HABITUAL BORROWERS

Some people are in the habit of borrowing money from the pushkas on a regular basis. Now, after reading my words, they may realize that this practice might be forbidden, depending on the above-mentioned circumstances. Nevertheless, there is a method whereby a person may put money into any pushka and still be able to borrow it afterwards: he should make a condition, in advance, that when he puts money into the pushka, he is not donating it to the institution, but simply pledging it to them. This way, the money is not yet the property of the institution, and one may borrow it. Although this solution will not help for the money already in the pushka, it can be used to avoid this problem in the future.

Some contemporary authorities suggest that someone who usually borrows from the pushka might be considered to have made this condition from the beginning, i.e., that he is not giving the money yet to the tzedakah cause, but only pledging it (Derech Emunah, Matanos Aniyim 7:note 121).

To answer Susan’s question, I would suggest that she make a condition that, henceforth, when she places money in the pushka, she is not donating it to that particular organization at this time. In so doing, she reserves the right to borrow from the pushka, although she also creates for herself responsibility for the money, should it be stolen. She may decide that she is better off curbing her habit of borrowing from the pushka, and make an appointment to join Borrowers Anonymous.

Making change from the pushka that benefits the tzedakah is permitted in any case, such as converting the small change in the pushka to large bills (Tzedakah Umishpat Chapter 8, footnote 25, page 148).

Unfortunately, most people do not realize the complex shaylos that arise from shul appeals and pushkas – hopefully, this article will help repair this breach. May we all always be showered with berachos for contributing generously to tzedakah!

Question #1: THE TALIS EXCHANGE

Dovid asked me the following shaylah: “I placed my talis in shul and, upon returning, discovered that it had been replaced by 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 in originally; however, the customer, Reuvein, later realized that one sheet was not his. A different customer, Shimon, picked up his items and noticed some things were missing however, the laundry insisted that they had returned whatever he 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 attended a wedding with one coat and, mistakenly, returned 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. Even if the result is that I must purchase a replacement, I may have to do so, 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 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 particular 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, 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.

Thus, referring back to question #3 above: Someone attended a wedding with one coat and, mistakenly, returned with a different one. May he use this coat and assume that the other party is agreeable to the exchange?

The answer is that we have no basis with which to permit you to use the other person’s coat.

At this point we can analyze Question #2.

A laundry returned to Reuvein the same number of items he had brought them; 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?

One of the interesting and surprising aspects of this shaylah is that this actual case was asked over 600 years ago!!

Answer: Shimon did not give the sheet to the laundry for them to sell. Therefore, the laundry gave Shimon’s garment to Reuvein without authorization, and he must return it to its rightful owner, even if Reuvein has no other way of being compensated for his loss (Terumas HaDeshen #319). 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 first 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 treat the talis as unusable and to consider purchasing a new one. 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 an obvious question:

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 their owner, if and when he locates him, why is this case different from the normal obligation to return 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, such as tefillin, where the owner wants someone else to use them, 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 applies also to non-mitzvah items, in cases where the owner is satisfied with simply receiving compensation equal to 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 finds 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 get his own books back, whereas he can always purchase new tefillin. This implies that people have no strong attachment to any specific pair of tefillin, whereas they have developed a bond with their own seforim, since they 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 any other easily replaced item.

Although this seems to be the obvious point of this Gemara, elsewhere the Gemara appears 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 specific coins and return them to their owner (Bava Metzia 29b). Obviously, the owner is not concerned about receiving 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 it makes no difference to the owner if the particular coins are returned to him, or if he is given others of equal value in their stead.

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, a second factor is that a finder who chooses not to use the tefillin but give them back becomes a guardian, who is responsible to care for them. He must then 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 there is now no risk of damage to the tefillin. This is qualitatively different from finding lost coins, which require no care other than storing them in a secure place.

We can therefore extract the following principles:

If taking care of a lost item requires some effort, and also, the owner does not care whether or not the original item is returned to him, the finder may estimate the value of the lost item in order to, eventually, repay this amount. Otherwise, the finder should hold the lost item and await the owner’s return. (There is another case mentioned when the finder sells the lost item for a similar reason, but that case is beyond the scope of this article.)

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 getting back the same garment that they lost. 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.

First, Question #4: 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. However, one may not pick up the umbrella until after she has realized her loss, and this may happen only some time after she leaves the subway. If you pick it up soon after its having been left, the umbrella is still the property of the person who lost it, and the one picking it up is responsible to return it.

However, a person is usually not concerned about owning his specific umbrella, but is satisfied with money to purchase a replacement. (If indeed, 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 should she prove that the umbrella was hers, you would have to compensate her for it.

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

Dovid had placed 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 he 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 he ever come back 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 they were.)

PECULIARITIES

The careful reader may have noted that our discussion is heading to an unusual conclusion. Although the Gemara 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 getting back the 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 for any reason that would give this particular sefer special meaning.)

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 parshiyos were written by a specific sofer who no longer writes, or made by a specific batim macher who has a long waiting list. Thus, after analyzing the principles of the above-mentioned Gemara, the Minchas Elazar decides the opposite of its conclusion and rules that the original owner gets his tefillin back.

However, an average person is usually satisfied with a replacement pair of tefillin, provided that they are absolutely kosher and of equal halachic quality. Thus, although the principles of the Gemara are infinite, the specific cases that match them change with the specific society in which they occur.

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.

Question #1: A CANDID QUESTION!

Chayim calls me on the phone:

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

Question #2: DON’T PULL THE RING!

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

Answer:

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

(1) Boneh, Construction

(2) Soseir, Destruction

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

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

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

Boneh

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

Constructing Movable Items

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

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

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

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

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

Large = Connected

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

Soseir

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

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

Destructive is Constructive?

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

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

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

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

Does Soseir apply to Portable Implements?

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

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

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

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

Since Soseir is the opposite of Boneh, if constructing an item constitutes Boneh, according to the opinions above, then destroying it is Soseir.

Makeh Bepatish

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

The Can Opener

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

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

However, in another discussion (Eruvin 34b) the Gemara rules that one cannot break open a container to obtain the food inside. Since manufacturing a proper vessel, even a small one, is prohibited min haTorah, smashing it remains prohibited even when one is smashing the vessel to obtain food. Although I explained above that this act is mekalkeil and therefore not prohibited min haTorah, it is still prohibited miderabbanan.

If so, how can the Mishnah permit smashing a barrel to obtain its contents?

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

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

How do we Rule?

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

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

Enter Chosalos

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

The Kolbo explains that chosalos are considered an artificial peel or shell around the dates or figs. The rationale is that the chosal is tafeil, secondary, to the food it contains and therefore it is not considered to be a vessel. Just as one may remove the natural peel or shell of a fruit on Shabbos and it is certainly not making or destroying a vessel, so one may remove an artificial “peel” or “shell” on Shabbos. Thus, anything included under the heading of chosalos may be opened on Shabbos. The Magen Avraham states that the permission to open chosalos does not permit the breaking of a regular vessel.

Can our contemporary packaging be compared to the law of chosalos? To answer this we need to have a clear definition of what defines a regular vessel and what defines chosalos.

Opening Cans

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

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

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

Soda Cans

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

On the other hand, the Chazon Ish (Orach Chayim 51:13) contends that opening any cans violates the Torah prohibition of making an opening. He explains two different reasons why opening cans is prohibited min haTorah:

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

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

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

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

The Torah’s concern for the protection of life and health is axiomatic. In virtually all instances, Torah restrictions are superseded when a life-threatening emergency exists. If the situation is extenuating, but not life-threatening, then the rule of thumb is that the Torah restriction remains in force. Sometimes, however, mitigating factors allow the overriding of a rabbinic injunction because of extenuating circumstances.

A contemporary halachic question which relates to this issue is as follows: Can a person suffering from angina or other heart disease carry his medication on Shabbos through a public thoroughfare? In case of a sudden attack, there would indeed be a life threatening need that permits procurement of such medication through any necessary means. However, there is no medical reason that compels the patient to leave his home where his medicine is kept. Is there halachic basis to allow him to carry his medication, since the possible medical emergency can be completely avoided? Granted that this would result in a great hardship by making the patient housebound on Shabbos, yet this deprivation would not constitute a life-threatening emergency and would not be grounds for overriding a Torah-proscribed Shabbos prohibition.

The halachic question is two-fold: Can carrying the medicine be considered a rabbinic violation, as opposed to a Torah violation, thus making it more acceptable? Does there exist a halachic basis for permitting the overriding of a rabbinic prohibition because of hardships?

The same principles can be applied to other medical situations. For example, the diabetic who receives insulin injections is usually medically advised to carry with him some food items containing sugar, as a precaution against insulin shock; and certain asthmatics and other allergy sufferers are advised never to go anywhere without their medication available. Would these patients be allowed to carry their sugar or medicine on Shabbos in a way that involves violating only a rabbinic decree?

Most contemporary authorities who address this issue base their discussion on a responsum of Rav Shmuel Engel, dated 9 Tammuz 5679 (July 7, 1919).[1] At the time of this question, there was a government regulation in force, requiring the carrying of identification papers whenever one walked outside, with serious consequences for those apprehended in violation. Rav Engel was asked whether one could place his identification papers under one’s hat on Shabbos while walking to shul. Rav Engel’s analysis of the halachic issues involved will clarify many of the aspects of our question.

Shabbos violations fall under two broad headings: those activities that are forbidden min hatorah (Torah-mandated), and those that are forbidden by rabbinic injunction, but do not qualify as melacha (forbidden work) according to the Torah’s requirements.

Torah law is not violated unless the melacha is performed in a manner in which that activity is usually done. If the act is done in a peculiar way, such as an item being carried in a way that things are not normally carried, it constitutes a rabbinic violation, but is permitted under Torah law. This deviation is called a shinui.[2]

Rav Engel points out that carrying identification papers in one’s hat would constitute a shinui, thus allowing a possibility of leniency. He quotes two Talmudic sources that permit melacha with a shinui on Shabbos because of extenuating — but not life-threatening – circumstances.

Rabbi Marinus said, "One who is suffering is allowed to suck milk directly from a goat on Shabbos. Why? [Is not milking an animal on Shabbos a violation of a Torah prohibition?] Sucking is considered milking in an unusual way, and the rabbis permitted it because of the discomfort of the patient." [3]

Tosafos notes that the leniency is allowed only if the suffering is caused by illness and not simply by thirst. The Talmudic text and commentary of Tosafos are quoted as halachic decision by the Shulchan Aruch.[4]

There is another Talmudic text with a similar conclusion:

Nachum of Gaul said, "One is allowed on Shabbos to clean a spout that has become clogged by crushing [the clogged matter] with one’s foot. Why? [Is it not forbidden to perform repair work on Shabbos?]Since the repair work is done in an unusual manner, the Rabbis permitted it in a case of potential damage."

Based on these Talmudic sources, Rav Engel concludes that the rabbis permitted the performance of melacha with a shinui under extenuating circumstances, even though rabbinic prohibitions are not usually waived for these situations. Furthermore, he points out two other mitigating factors: according to most opinions, the prohibition of carrying on Shabbos in our cities (even in the usual fashion) is rabbinic because "our public areas do not constitute a public domain according to Torah law." And carrying identification papers would constitute a melacha done without any need for the result, which would also provide a reason to be lenient, as will be explained.

Melacha She’einah tzricha legufah

In several places, the Gemara[5] records a dispute between Rabbi Yehudah and Rabbi Shimon as to whether a melacha she’einah tzricha legufah, an action done intentionally and in the normal fashion, but without a need for the result of the action, is forbidden by the Torah or only rabbinically. For example, carrying a corpse from a private domain into a public domain would not constitute a Torah desecration of Shabbos according to Rabbi Shimon, since one’s purpose is to remove the corpse from the private domain, and not because he has a need for it in the public domain. Similarly, snaring or killing a predator insect or reptile would be a melacha she’einah tzricha legufah, since one has no need for the caught reptile, and therefore constitutes only a rabbinic violation, according to Rabbi Shimon. Both of these cases violate Torah prohibition according to Rabbi Yehudah, who opines that a melacha she’einah tzricha legufah is a Torah-mandated prohibition.

Although the Rambam[6] follows the opinion of Rabbi Yehudah, the majority of halachic authorities concur with Rabbi Shimon.[7]

Rav Engel considers carrying identification papers in one’s hat as a melacha she’einah tzricha legufah, because the carrier has no personal use for the papers and is carrying them merely to avoid injury or loss. He compares this to the killing of the snake, where the intent is to avoid injury. Although his point is arguable, as evidenced by a later responsum,[8] Rav Engel reiterates his position that this situation qualifies as a melacha she’einah tzricha legufah.

Placing identification papers in one’s hat and carrying them that way is permitted by Rav Engel because of the following mitigating reasons.

1. The Gemara permits performing a melacha she’einah tzricha legufah under extenuating circumstances (illness or financial loss).

2. In any case, the prohibition involved, even if performed in a regular manner, would involve only rabbinic prohibition, not a Torah law. This conclusion is justified, either because of the principle of melacha she’einah tzricha legufah, or because no Torah-mandated public domain exists today.

3. Carrying the identification papers is to be allowed only to attend the synagogue or to perform a different mitzvah.

This responsum provides us with strong halachic precedent, although certain aspects of our case differ from those of Rav Engel’s. Firstly, whereas in Rav Engel’s case, the identification papers had no intrinsic worth to the carrier, the nitroglycerin tablets do have intrinsic value to the patient. This would render them a melacha hatzricha legufah, a melacha performed with interest in the results being done, which constitutes a Torah- forbidden melacha. Thus, one of the reasons for being lenient is nullified.

Secondly, Rav Engel permitted the carrying of identification papers only for the performance of a mitzvah. Would he have allowed a greater leniency for someone who is ill? Bearing in mind the case of Rabbi Marinus, where permission is based on medical needs, could leniency be extended to allow carrying with a shinui, even for social or other reasons?

Several later halachic works discuss the question of a patient carrying medication with a shinui, as a precaution against sudden attack. Rav Yekutiel Y. Greenwald[9] suggests that a sugar cube be sewn into the pocket of a diabetic’s coat before Shabbos, so that he would not be carrying in the usual manner. Rav Greenwald bases his opinion on the Gemara[10] which allows the carrying of an amulet on Shabbos as a medicinal item, and the responsum of Rav Shmuel Engel quoted above. Unfortunately, the comparison to the law of kamayah (amulet) seems strained. The halacha clearly states that the kamayah must be worn in the way that it is normally worn, and that it can be worn only if it is a proven remedy; under these circumstances, the kamayah is considered to be like a garment. There does not seem to be a basis in these considerations to allow carrying for non-life threatening medical need. However, Rav Greenwald allows the diabetic to go outside even for non-mitzvah-related activities.

Rav Eliezer Yehuda Waldenberg[11] cites the responsum of Rav Greenwald, but disputes his conclusions sharply. In addition to the difficulty we have noted, he also disputes two assumptions of Rav Greenwald.

1. Whereas Rav Greenwald says that one could allow the sugar cube (or medicine tablet) to be sewn into the garment in order to carry it on Shabbos, Rav Waldenberg finds no halachic source to permit carrying an item in this fashion.

2. Rav Waldenberg writes that the only situation in which Rav Engel permitted the carrying with a shinui was when the activity would have constituted a melacha she’einah tzricha legufah. This applies to carrying identification papers, where the carrier has no personal need for the papers and is carrying them only to avoid being apprehended. It does not apply to the case of medication, where the patient wants the medicine available for his own use.

Rav Waldenberg concludes that the leniency proposed by Rav Engel is not applicable to our situation, and that this patient would not be allowed to carry his medication outside, even when using a shinui. A mediating position is taken by Rav Yehoshua Neuwirth.[12] Although he equates the situation of the person carrying identification papers to the one carrying medication, and does permit the carrying of medication with a shinui for the propose of performing a mitzvah, Rav Neuwirth recommends other specific guidelines, a discussion of which is beyond the scope of this article.

In a responsum on this topic by Rav Menashe Klein,[13] he concludes that a patient is allowed to carry nitroglycerin tablets with a shinui for the purpose of going to shul or for performing another mitzvah. Rav Klein also includes two other reasons to be lenient:

1. There is currently no public domain according to Torah definitions.

2. He considers this carrying to be a melacha she’einah tzricha legufah, a point which is certainly disputed by the other authorities quoted.

An interesting comment quoted in the name of the Chasam Sofer by the Levushei Mordechai[14] should also shed light on this issue. Levushei Mordechai reports that the Chasam Sofer was in the habit of carrying a handkerchief tied around his wrist outside of the eruv on Shabbos, because it is considered carrying with a shinui and is permitted, because of the need for the handkerchief. The prohibition of rabbinic origin is overridden by the need for personal dignity (kavod haberiyos). No stipulation is made by Levushei Mordechai that the walking is done exclusively for a mitzvah purpose.

One might think that the discomfort of staying home on Shabbos provides greater reason to be lenient than the concept of personal dignity, and that this responsum could therefore be utilized as a basis to allow carrying of nitroglycerin with a shinui. However, few later poskim refer to the comment of the Levushei Mordechai.[15]

The following conclusions can be reached:

1. There is halachic basis for permitting the performance of rabbinically–prohibited activities with a shinui, in certain extenuating circumstances.

2. Rav Engel allowed the carrying of identification papers in one’s hat to enable one to perform a mitzvah.

3. Several contemporary poskim discuss this question and reach divergent conclusions.

[1] Shu’t Maharash Engel, 3:43

[2] See Shabbos 92a, 104b

[3] Kesubos 60a

[4] Orach Chayim 328:33

[5] Shabbos 12a, 31b, 73b etc.

[6] Hilchos Shabbos 1:7

[7] I refer the reader to read my Hebrew Kuntrus on the topic, published at the end of Nimla Tal Volume I

[8] Shu’t Maharash Engel, 7:20

[9] Kol Bo on the laws of Aveilus, Volume 2, page 20

[10] Shabbos 60a, 67a

[11] Shu’t Tzitz Eliezer 13:34

[12] Shemiras Shabbos KeHilchasah, Chapter 40 #7

[13] Shu’t Meshaneh Halachos 7:56

[14] Shu’t Levushei Mordechai #133

[15] It is quoted by Shearim HaMetzuyanim BaHalacha 84:13 and by Lev Avraham Volume 1, Chapter 6.

Thirty Days has September, April, June, November, Tishrei, Shvat, Nissan, Sivan, Av and sometimes Cheshvan^[1] and Kislev. Yet a reading of Mishnah Rosh Hashanah implies that whether a month has 29 days or 30 depends on when the witnesses saw the new moon and testified in Beis Din early enough to declare the thirtieth day Rosh Chodesh. In addition, the Gemara^[2] notes that Elul could be thirty days long, something that cannot happen in our calendar. How did our empirical calendar become so rigid and predictable in advance? Come with me as we explore the history and foundations of the Jewish calendar!

The Torah (Shemos 12:2) commands the main Beis Din of the Jewish people, or a Beis Din specially appointed by them, to declare Rosh Chodesh upon accepting the testimony of witnesses who observed the new moon (Rambam, Hilchos Kiddush HaChodesh 1:1, 7; 5:1). The purpose of having eyewitnesses was not to notify the Beis Din of its occurrence; the Beis Din had extensive knowledge of astronomy and already knew exactly when and where the new moon would appear and what size and shape it would have (Rambam, Hilchos Kiddush HaChodesh 2:4; Ritva on the Mishnah Rosh Hashanah 18a). The moon’s location and speed is constantly influenced by many factors, but the wise scholars of the tribe of Yissachar calculated where and when it would appear.

The Molad

As the moon orbits earth, we on earth observe it as passing through its various phases, from the very smallest crescent until full moon, and then shrinking until it disappears completely. This monthly cycle occurs because the moon has no light of its own, and only reflects sunlight back to earth. As the moon travels around the earth, the angle at which it reflects light changes. This evidences itself in the moon’s changing phases. When the moon is on the side of the earth away from the sun, we see the full moon, because it is now at an angle whereby the entire side is reflecting light to us. However, when the moon is on the side of earth nearest the sun, we see no reflection of its light at all, and that is the point of every month when the moon disappears from earthly view. The molad is the point at which the moon crosses the plane between the earth and the sun, which means it is the beginning of a new cycle, called in English the new moon and in technical jargon the point of conjunction.

From the time of the actual molad you can calculate when the moon will become visible. Chazal always kept secret how one can predict when the new moon was to appear so as to avoid false witnesses abusing the knowledge of this information (Rambam, Hilchos Kiddush HaChodesh, 11:4).

The purpose of having eyewitnesses was not to notify the Beis Din of its occurrence; rather, the Torah required the Beis Din to wait for witnesses to determine whether the 30^th day (of the previous month) would be the last day of the old month or the first day of a new month. If no witnesses to the new moon testified on the 30^th day, then the new month does not begin until the 31^st day, regardless of the astronomic calculations (Mishnah Rosh Hashanah 24a). Thus, prior to the establishment of our current "permanent" calendar, any month could be either 29 or 30 days, dependent on when the new moon appeared and whether witnesses arrived in Beis Din to testify about this phenomenon.

By the way, we should be aware that the above description follows the opinion of the Rambam, that the preferred and original mitzvah is to declare Rosh Chodesh based on the testimony of witnesses. However, there are several early authorities, including Rav Saadyah Gaon and Rabbeinu Chananel, who hold that the primary mitzvah is to declare Rosh Chodesh on the basis of the calculations, and that use of witnesses was implemented because of certain circumstantial issues.

According to either approach, the calendar printers could not go to press until the Beis Din had declared Rosh Chodesh, which probably explains why calendar manufacture in those times was a difficult business in which to turn a profit. Perhaps this is why organizations mailed out so few fundraising calendars in the days of Chazal!

There is another commandment of the Torah – that Pesach must always occur in the Spring (Devarim 16:1). This seemingly innocuous obligation actually requires considerable manipulation of the calendar, since the months, derived from the word moon, are determined by the length of time from one new moon to the next, which is a bit more than 29 1/2 days. However, the year and its seasons are determined by the relative location of the sun to the earth, which is a bit less than 365 1/4 days. By requiring Pesach to always be in the spring, the Torah required that the calendar could not be exclusively twelve lunar months, since this would result in Pesach wandering its way through the solar year and occurring in all seasons.^[3]

Among contemporary calendars, most make no attempt to accommodate the solar year and the lunar month. What we refer to as the common secular calendar, or the Gregorian calendar, is completely based on the sun. Although the year is broken into months, the use of the word "months" is borrowed from its original meaning and has been significantly changed since the months have no relationship to any cycle of the moon. Most of the secular months have 31 days, while the lunar cycle is only about 29 1/2 days, and even those secular months that have 30 days do not relate to any phase or change in the moon. Similarly, the length of February as a month of either 28 or 29 days has nothing to do with the moon. Thus, although the word month should correspond to the moon, the Western calendar is purely a solar one, with a borrowed unit "month" given a meaning that distorts its origins.

The Moslem calendar is purely a lunar calendar of twelve lunar months, some 29 days and some 30, but has no relationship to the solar year. In truth, a pure lunar calendar has no real "year," since a year is based on the relative locations of the sun and the earth and the resultant seasons, and the Moslem year completely ignores seasons. The word "year" is used in the Moslem sense only as a basis for counting longer periods of time, but has no relationship to the sun. Thus the Moslem "year" is only 354 or 355 days long — almost 11 days shorter than a true solar year. Therefore, a Moslem who tells you that he is 65 years old is really closer to 63 according to a solar year count. He has counted 65 years that are at least ten days shorter. I trust that Guinness takes these factors into account when computing longevity, and insurance companies realize this when calculating actuarial tables.

To review: the Moslem calendar accurately tracks the moon and the months, but has no relationship to a true year, and the Western secular calendar is fairly accurate at tracking the year and its seasons, but has no relationship to the moon and its phases.

It is noteworthy that although the Moslem "year" does not correspond at all to a solar or western year, it closely corresponds to our Jewish year in a "common" year which is only twelve months long, and the Moslem month follows closely the Jewish calendar month. (We will soon explain why there is sometimes a discrepancy of a day or two.) Thus, for three years recently, Ramadan, the Moslem holy month, corresponded to our month of Elul, although this year Ramadan falls in Av. It is accurate to say that the Moslem year "wanders" its way through the seasons as it takes 33 years until a specific month returns to the same corresponding time in the solar year, and in the interim the month has visited each of the other seasons for several consecutive years. Thus, Ramadan will not coincide with Elul again this generation, but falls in Av for three years, with Tamuz for two years, and then with Sivan, etc.

However, when Hashem commanded us to create a calendar, He insisted that we use the moon to define the months, and yet also keep our months in sync with the seasons, which are dependent on the sun; to determine the dates of the Yomim Tovim. The only way to do this is to use the Jewish calendar method of occasionally adding months – thereby creating 13 month years, which we call "leap years," to offset the almost 11 day difference between twelve lunar months and a solar year. The result of this calendar is that although each date does not fall exactly on the same "solar date" every year, it falls within a fairly close range relative to the solar year.

Who determined which year has thirteen months?

The original system was that the main Beis Din (also known as the Sanhedrin) appointed a smaller special Beis Din to determine whether the year should have an extra month added. This special Beis Din took into consideration:

1) Astronomical data, such as: When Pesach will fall out relative to the vernal equinox (the Spring day on which day and night are closest to being equal in length).

2) Agricultural data, such as: How ripe is the barley? How large are the newborn lambs and pigeons?

3) Weather: Is the rainy season drawing to a close? Is it a famine year?

4) Convenience – or more specifically, the halachic inconvenience of creating a leap year: Shemittah was never made into a leap year, and the year before shemittah usually was.

5) Infrastructure, such as: In what condition were the highways and bridges.

All of these points influenced whether the thirteenth month, the extra Adar, would be added.^[4] When this system was in place, which was from the time of Moshe and Yehoshua until almost three hundred years after the destruction of the Beis Hamikdash, the main Beis Din sent written messages notifying outlying communities of the decision to create a leap year and the reasons for their decision.^[5]

By the way, after the destruction of the Beis HaMikdash, the main Beis Din was not located in Yerushalayim, but wherever the Nasi of the Jewish people resided, as long as it was in Eretz Yisrael. This included several other communities at various times of Jewish history, including Teverya, Yavneh, and Shafraam.^[6] Indeed, during this period sometimes the special Beis Din met outside the land of Israel — should the head of the Beis Din be in the Diaspora and there be no one of his stature remaining in Eretz Yisrael.^[7]

This explains how the calendar is intended to be calculated.  I have not yet explained why and how our current calendar came to be. This will be discussed in a future article.

^[1] Although the correct name of the month is Marcheshvan, we will follow the colloquial use of calling it Cheshvan.

^[2] Rosh Hashanah 19b, 20a

^[3] Rambam, Hilchos Kiddush HaChodesh 4:1

^[4] Sanhedrin 11a- 12a

^[5] Sanhedrin 11b; Rambam, Hilchos Kiddush HaChodesh 4:17

^[6] Rosh Hashanah 31b

^[7] Berachos 63a; Rambam, Hilchos Kiddush HaChodesh 1:8

Yonasan, who was originally adopted by non-observant parents, called me with the following shaylah:

“My parents, meaning the couple who adopted me, eventually divorced, and later my father remarried, although there was a halachic problem with his second marriage. My adoptive father was a kohen, and his second wife, Martha, was a divorcee. Recently, my father passed away. My father’s final will, which was drafted when he was ill and very dependent on Martha, was completely different from his previous will, and left virtually all his property to her. Uncle Jack, my adoptive father’s brother, is very upset about the will, believing that this was certainly not my father’s intention, and that it can be overturned in court. This would make me the legal heir to my father’s estate, although halachically, I am not his son. Uncle Jack wants to file a lawsuit over the matter; however, he has no legal recourse to do so, since the civil law does not consider him my father’s heir. May I file a lawsuit to overturn the will?”

This shaylah is indeed as complicated halachically as it sounds, and actually involves three different areas of halacha:

I. Who is the heir?

II. What is the halachic status of a will?

III. May one file the lawsuit in secular court?

In addition, there is a fourth halachic issue that must be addressed, a question of yibum, which I will discuss later.

I will explain each area of halacha mentioned above in order to explain the procedure that I suggested that Yonasan follow.

I. Who is the heir?

Although civil law considers Yonasan the child of his adoptive parents for all matters, including his being their legal heir, the adoption did not make him their biological son. Indeed, the Gemara states that someone who raises a child is considered as if he had given birth to him;^[1] however, the adopted child does not inherit, unless he receives the property as some form of gift, as I will explain.

Thus, although Yonasan is his father’s legal heir (from a civil law perspective, if we ignore the will), halacha does not consider him an heir automatically, unless his father gave him the property in a halachically correct will. Since the existing will made other accommodations, Yonasan receives nothing from his father’s estate halachically, neither as an automatic heir nor as the receiver of gifts through his father’s will. Thus, Yonasan cannot make a financial claim against his stepmother for his father’s estate, since it does not belong to him. If the will is valid, then the property belongs to Martha, his stepmother. If the will is invalid, the property belongs to Uncle Jack.

Why Uncle Jack?

If a man dies without biological children and makes no halachic provisions for his estate, then his closest heir is his father, who, in this case, is already deceased. The next closest relative is any surviving brother. In this case, there is one biological brother of the deceased, Uncle Jack. Thus, he is the halachic heir of Yonasan’s father, and if indeed the will is halachically invalid, the property halachically belongs to him, although he may not be able to take possession of it according to civil law.

Halachically, a woman does not inherit from her husband as next of kin. Instead, the Torah gives her the rights of the kesubah, provides that she may live in her late husband’s house and guarantees her income and support from his property. Martha is entitled to these financial rights if she was halachically married to Yonasan’s father, even if the marriage fell into the category of a halachically prohibited marriage. (One method whereby Martha and Yonasan’s father could have been halachically married in a prohibited marriage would be if they had deceived an Orthodox rabbi, dishonestly getting his agreement to perform their ceremony. There are others.) Thus, if Martha proves that she was halachically married to Yonasan’s father, she will be entitled to this support, even though she was a divorcee and he was a kohen.^[2]

II. Is the will valid?

According to civil law, a person has the right to choose his heirs and thereby to choose to whom he distributes his earthly wealth after passing on. However, according to the Torah, a person does not have the ability to choose his heirs, nor can he arrange to give away property after death. When a man dies, the Torah instructs us how to distribute his assets, through the laws of yerusha.

How can someone leave his property to his adopted child?

There are methods whereby one can transfer his property to his adopted child, or to anyone else, for that matter, who is not a halachic heir. One method is to draw up a will, and then make a kinyan that transfers possession of the bequeathed property to the beneficiary of the will. (I mention this method as a possible illustration, since it does not work in all situations.) This can be done in a way that the person wishing to bequeath his property maintains ownership over it in the meantime and leaves him the right to change his bequest later. Some poskim, albeit a minority, contend that a legally valid will alone constitutes a kinyan. These authorities reason that arranging a legally valid will, knowing that the government will transfer property as a result, is halachically equivalent to making a kinyan.^[3] However, most poskim maintain that a standard civil will is not halachically valid.

Yonasan’s father was not observant and did not have his lawyer make the will halachically valid. (Unfortunately, many observant Jews do not attend to this important matter either. Just as it is important for a person to have a will drawn up, it is important to make sure that it is halachically valid.) Therefore, many poskim would consider Uncle Jack to be the halachic heir of the estate, yet he cannot file a civil suit concerning the property, since he is not an interested party according to civil law. But before we even get to this step in the discussion, we need to discuss whether the Torah permits Yonasan or Uncle Jack to sue in civil court.

III. Arka’os, the prohibition against filing a suit in a secular court.

A Jew may not litigate against a fellow Jew in civil court,^[4] even if both parties agree.^[5] This is known as the prohibition against using arka’os. Someone who uses court systems not sanctioned by the Torah performs a chillul Hashem, a desecration of G-d’s Name, because he demonstrates that he feels that G-d’s Torah cannot resolve his financial matters.^[6] In the words of the Rambam,^[7] “Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rasha. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu.”^[8] Someone who brought litigation to a secular court is invalidated from being a chazzan for Yomim Nora’im.^[9] In addition, he will probably transgress the violation of stealing (gezel), since the property he receives is not his according to halacha.

What if the Other Party Refuses to Go to Beis Din?

This problem is, unfortunately, neither uncommon nor recent, and apparently occurred even at the time of the Gemara.^[10] If this happens, the halachically correct procedure is for the plaintiff to have beis din summon the defendant. If the defendant fails to appear in beis din or indicates that he will not appear, the beis din authorizes the plaintiff to sue in civil court.^[11] Under these circumstances, the plaintiff has not violated the prohibition of going to arka’os, since he acted according to halacha.

(It should be noted that even if someone is authorized to sue in civil court, he is only entitled to receive what halacha entitles him. It could happen that the civil court awards him more money than he is entitled to according to halacha. Therefore, he should ask a posek after winning the litigation how much of the award he may keep. The balance he would be required to return to the other party.)

Applying these rules to our case means that Uncle Jack may file a suit in beis din against Martha. Although Uncle Jack would like Yonasan to sue in civil courts, Yonasan may not sue according to halacha for two different reasons:

(1) One may not sue in civil court without permission from beis din.

(2) Yonasan has no halachic grounds to claim his adopted father’s estate since he is halachically not an heir.

Does this mean that this was the end of the case?

No. Yonasan explained to Uncle Jack the halachic background to the shaylah. Uncle Jack feels strongly that Martha took unfair advantage of his ill brother, which is the reason why he and his attorney feel that the will can be easily overturned in civil court. Uncle Jack then asked Yonasan if there is any way that Yonasan could proceed with the claim.

Harsha’ah

Enter harsha’ah, which is the halachic equivalent of a power of attorney, into the picture. A harsha’ah allows someone who is not an interested party in the litigation to sue as if he is an interested party. In this instance, Uncle Jack, as the halachic heir, can authorize Yonasan by means of a harsha’ah to sue Martha in beis din. If Martha ignores the summons or indicates that she will not respond to it, the beis din authorizes Yonasan and Uncle Jack to pursue the matter in civil court. The court will not accept Uncle Jack as a plaintiff against the will, since they do not recognize him as the heir. Although the court does not recognize Uncle Jack’s claim, Yonasan may now sue in civil court, based on the beis din’s authorization. Halachically, the basis of the civil suit is to save Uncle Jack the money that is his, even though neither the civil court nor Uncle Jack himself accepts that the money is his.

At this point in the discussion, Yonasan e-mailed me a further question:

“Dear Rav Kaganoff,

“In the event that my uncle does choose, with permission from a beis din, to sue my father’s widow in civil court, *should* I or merely *may* I act on his behalf?”

Indeed, this is a difficult question. In general, saving someone’s money is a mitzvah, and therefore, if someone sued in beis din and was ignored, it is a mitzvah to help him save his money in civil court, providing that this approach was properly authorized by beis din. This act of chesed is included under the mitzvah of hashavas aveidah, returning a lost object to its proper owner.

In our instance, I was less certain if this is considered hashavas aveidah, since Uncle Jack does not consider the money his and is only planning to give it to Yonasan. Is Yonasan required to assist in helping Uncle Jack claim the money, knowing that Uncle Jack will probably assume that it is Yonasan’s and give it to him? Furthermore, since there might be poskim who feel that the money is legitimately Martha’s, one could certainly rely on their opinions to rule that it is not a requirement for him to be involved in the litigation. Thus, there are two different considerations as to why he may not be considered “saving someone’s money”:

(1) Can you say that he is saving someone else’s money, when that person intends to give it to him?

(2) According to some opinions, the money may not be Uncle Jack’s, but Martha’s. Although he is permitted to follow the opinion that the money is Uncle Jack’s, is he required to?

Another consideration: Chalitzah

At this point in the discussion, I introduced a new topic to Yonasan, that of the mitzvah of chalitzah. This requires some explanation. If a man dies without having biological children, there is a mitzvah for his brother to perform a procedure called chalitzah, which permits the widow to remarry. In addition, the chalitzah is a tremendous tikun neshamah for the departed. The mitzvah applies even if the widow is no longer of child-bearing age, and even if the couple married after she was beyond child-bearing age.

Many people do not realize that, if a couple has adopted children, but no biological children, the mitzvah of chalitzah still applies. Since Yonasan’s father had no biological children, his widow (assuming that they were halachically married, as she claims) is a yevamah, who requires chalitzah from Yonasan’s uncle to permit her to remarry.

I quote my letter to Yonasan:

“If your father’s marriage to his last wife was halachically valid, then there is a requirement/mitzvah for your uncle to perform chalitzah,^[12] even if your father’s widow has no intention of remarrying and is not observant.”

Yonasan replied:

“I’m surprised it didn’t occur to me.  Question, though — even if they did get married with chuppah and kiddushin, she was a grusha, and he a kohen, so the marriage was forbidden.  He claimed to have asked a rabbi, who permitted the marriage on the basis that since he was disabled, he would not be allowed to perform the avodah, even if the Beis HaMikdash was standing. I did not think this is correct [indeed it is not], but I didn’t see any point in making an issue of it.  Was he right?  Assuming that his marriage was halachically unacceptable. Would that in any way impact on chalitzah?"

To which I replied:

“There is absolutely no halachic basis to any of the reasons he told you to permit this marriage. I presume that he mentioned these reasons to relieve his own conscience, and that he never asked a shaylah; halachically, he was prohibited from marrying a divorcee.

“A halacha-abiding rabbi would not perform such a ceremony, unless he was unaware either that your father was a kohen or that his wife was a grusha. However, even if there had been no proper halachic ceremony, they might have been considered married according to halacha, particularly since they considered themselves married. Thus, although this marriage was forbidden, there may be a requirement to perform chalitzah. The mitzvah of chalitzah applies even in the case of a kohen who marries a divorcee.^[13] Is there anyone where they live knowledgeable enough to arrange this for them?”

Yonasan responded to my inquiry:

“There are some very prominent talmidei chachomim living near where both my uncle and my stepmother live.  However, they live a considerable distance from one another. I doubt that the widow is aware of the need for a chalitzah; I also doubt that she’ll object to it if it’s made easy for her. My uncle is, however, totally irreligious. How would I get him to agree to it and to travel the distance involved? He is unlikely to drop everything and fly to where she is to perform what he would see as an unimportant religious ceremony to help out a woman with whom he is upset.  What if he were to appoint someone else as a shaliach over the phone?  Would that be acceptable?”

To which I responded,

“Unfortunately, chalitzah cannot be performed through shelichus (agency). It sounds as if the most likely way for this to happen is to wait until a time that you know that they will be near one another  and then plan carefully how to present it to them. Alternatively, simply mention to them that chalitzah is a big tikun neshamah for your father, whom they both liked (I presume), and ask if they can keep it in mind in future travel plans.

"By the way, the mitzvah is your uncle’s mitzvah to perform, not hers.”

As of this writing, I do not know if Yonasan decided to proceed with the litigation over the will, and I presume that no action has resulted concerning the chalitzah. However, this situation affords us the opportunity to discuss halachos with which many people are unfamiliar, and it provides a tremendous opportunity to make people aware of a number of different mitzvos.

It is important to realize that legal rights and responsibilities are never governed by secular law. A Torah Jew realizes that Hashem’s Torah is all-encompassing, and that halacha directs every aspect of one’s life. Thus, halacha governs all financial aspects of our lives, and one should be careful to ask shaylos about one’s business dealings.

Indeed, through this entire halachic conversation, I was exceedingly impressed by Yonasan’s ability not to be swayed by financial considerations, but to be certain that what he did would be the perfectly correct approach halachically. In fact, he was shortly thereafter awarded a tremendous financial windfall – no doubt, for his adherence to halacha, despite whatever financial temptation existed.

^[1] Megillah 13a; Sanhedrin 19b

^[2] Mishnah Kesubos 100b

^[3] Shu’t Igros Moshe, Even HaEzer 1:104

^[4] Gittin 88b

^[5] Ramban, beginning of Parshas Mishpatim

^[6] Midrash Tanchuma, Mishpatim #3

^[7] Hilchos Sanhedrin 26:7

^[8] See also Rashi’s comments on Shemos 21:1

^[9] Mishnah Berurah 53:82

^[10] Bava Kama 92b, as explained by Rosh

^[11] Shulchan Aruch, Choshen Mishpat 26:2

^[12] Mishnah Yevamos 20a

^[13] Mishnah Yevamos 20a

When Yaakov’s family reached Egypt, they were now going to live in a country which raised large quantities of camels, horses, and donkeys, all of them non-kosher mammals that can be commercially milked. Since we know that the avos kept the entire Torah before it was given at Har Sinai, they now had to be concerned about the possibility that non-kosher milk might get mixed into the milk from their goats and sheep. Thus, although the halacha of chalav Yisrael was not created by Chazal until later, the concept must have already existed in this week’s parsha.

Question:

Dr. Levy asks me the following: "Friends of ours keep chalav Yisrael, but they will use foods made with non-chalav Yisrael powdered milk. But I know from my professional research that one can purchase powdered mare’s (female horses) and camel’s milk – they are specialty products that command a very high premium. So why is there any difference between using non-chalav Yisrael powdered milk, and non-chalav Yisrael fluid milk?"

The Mishnah (Avodah Zarah 35b, 39b) proscribes consuming milk that a gentile milked, a prohibition called chalav akum, unless a Jew supervised the process. Chalav akum was prohibited because of concern that the milk may have been adulterated with milk of a non-kosher species. As I wrote about extensively in a different article, there are three major approaches to define exactly when the prohibition applies.

The most lenient approach is that of the Pri Chadash (Yoreh Deah 115:15), who understands that one only needs to be concerned about chalav akum when the non-kosher milk is less expensive than the kosher variety, or it is difficult to sell. However, when kosher milk is less expensive, he contends that one does not need to be concerned that the gentile would add more expensive specialty non-kosher milk into regular kosher milk.

On the other extreme is the position of the Chasam Sofer, who maintained that the prohibition has a halachic status of davar shebeminyan, a rabbinic injunction that remains binding even when the reason why the takanah was introduced no longer applies and that the takanah remains in effect until a larger and more authoritative body declares the original sanction invalid (see Beitzah 5a). Since a more authoritative beis din never rescinded the prohibition on unsupervised gentile milk, consuming this milk involves a serious violation. The Chasam Sofer furthermore contends that consuming unsupervised milk violates a Torah prohibition of nedarim since the Jewish people accepted this ruling. All this is true, he contends, even when there is no incentive for the non-Jew to adulterate the product.

And there is an approach in between these two positions, that of Rav Moshe Feinstein and the Chazon Ish (Yoreh Deah 41:4) who contend that, in a place where non-kosher milk commands a higher price than kosher milk, it is still prohibited to use unsupervised milk. However, Rav Moshe understands that the takanah did not specifically require that a Jew attend the milking, but that one is completely certain that the milk has no admixture of non-kosher. However, when one is certain that the kosher milk is unadulterated, halacha considers the milk to be "supervised" and therefore kosher (Shu’t Igros Moshe, Yoreh Deah 1:47).

How can one be certain? The Mishnah recommended the most obvious way: have a Jew nearby who may enter at any moment. Of course, we realize that even this method is not foolproof, but it is as thorough as halacha requires.

Is there another way that one can be certain? Allow me to use my own example to explain Rav Moshe’s approach. Dr. Levy runs laboratory tests on some unsupervised milk and concludes with absolute certainty that in front of him is 100% sheep’s milk. However, no Jew supervised the milking. Is the milk kosher?

According to Rav Moshe’s explanation of the topic, this milk is certainly kosher since we can ascertain its source based on laboratory analysis.

In his earliest published teshuvah on the subject, Rav Moshe explained that when the government issues fines for adulteration of cow’s milk, the fear of this fine is sufficient proof that the milk is kosher. In later teshuvos, he is very clear that other reasons why we can assume that the milk is kosher are sufficient proof, including that normal commercial enterprises assume that standard milk is bovine milk (Shu’t Igros Moshe, Yoreh Deah 1:48, 49).

Being Stringent

Although Rav Moshe concludes that where one can rely that the standardly available milk is kosher there is no prohibition of chalav akum, he still rules in a different teshuvah that a chinuch institution must use only chalav Yisrael products even if all the children come from homes that do not use chalav Yisrael exclusively. He contends that part of chinuch is to show children that one follows a stricter standard even when halacha does not necessarily require one.

Powdered milk

With this introduction, I would now like to discuss the question raised above: Friends of ours keep chalav Yisrael, but will use foods made from non-chalav Yisrael powdered milk. But I know from my professional work that one can purchase powdered mare’s and camel’s milk – they are considered specialty items. So why is there any difference between using non-chalav Yisrael powdered milk, and non-chalav Yisrael fluid milk?

Those who allow use of non-chalav Yisrael milk powder follow the opinion presented by Rav Tzvi Pesach Frank, Rav of Yerushalayim until his passing fifty years ago, and one of the greatest poskim of his era. Rav Frank assumed that the halacha follows the Chasam Sofer who requires Jewish supervision to permit the non-Jewish milk, and did not accept the heterim of the Pri Chadash, nor that of the Igros Moshe and Chazon Ish. Nevertheless, Rav Frank permitted powdered milk from an unsupervised gentile source for a very interesting reason.

The poskim permit using cheese that is gevinas Yisrael and butter (both these topics I explained in other articles) even when these products were made from unsupervised milk. Why did they permit this? Because the milk of non-kosher species is low in casein, it does not curd, which is the first step in producing cheese. In addition, the milk of non-kosher species is also low in milkfat (also called butterfat or cream), which makes it unprofitable to make butter from non-kosher milk. (I invite those curious about this aspect to read the highly entertaining responsum of the Shu’t Melamed LeHo’il, 2:36:2, on this topic.) For these reasons, even in the days of Chazal one could assume that a gentile would not add milk of non-kosher species when he intends to produce either cheese or butter, and therefore these items were excluded from the prohibition of chalav akum.

May powdered milk be treated like cheese and butter?

Rav Frank notes that there is a significant qualitative difference between cheese and butter, on the one hand, and powdered milk, on the other, in that there is an inherent problem with making cheese and butter from non-kosher milk, whereas one can powder any milk. (This is precisely Dr. Levy’s question I mentioned above.) Thus, one could argue that the leniency that applies to cheese and butter should not apply to milk powder.

However, Rav Frank quotes the Ritva (Avodah Zarah 35b) who pointed out that technically one could make cheese even from non-kosher species, but the cheese yield from these milks is very poor, and when the milk curds, most of it becomes whey. Thus, although it is theoretically possible to make cheese or butter from non-kosher milk, the halacha does not require one to be concerned about this. Rather one may assume that a gentile would not adulterate this milk. It is indeed noteworthy that while researching milk and cheese made the world over, I discovered cheeses made from the milk of cows, sheep, goats, water buffalo, and yak, all of them kosher species. I also found places where milk from several non-kosher mammals, such as donkeys, mares, and camels, are consumed. But I did not find a single populace making cheese from the milk of non-kosher species, verifying the Ritva’s observation that it is simply not worthwhile to make cheese from the milk of non-kosher species.

Rav Frank concludes that what permits the unsupervised milk used in cheese and butter is not that it is impossible to use non-kosher milk for this process but that it is unlikely. Thus, he reasons, although one could powder non-kosher milk, the prohibition of chalav akum was limited to fluid milk and other products available in the days of Chazal which could easily be made from non-kosher milk. Since powdered milk did not exist in the days of Chazal, and since we are certain that standardly available powdered milk is of bovine origin, the prohibition against chalav akum does not apply to milk powder just as it does not apply to butter and cheese.

We should note that the Chazon Ish took strong issue with Rav Frank’s position treating milk powder differently from fluid milk, the Chazon Ish contending that the lenience that applies to cheese and butter applies only because these products inherently are not made from non-kosher milk, a logic that does not apply to milk powder.

Thus, Dr. Levy’s friends who keep chalav Yisrael but use foods made with non-chalav Yisrael powdered milk follow the conclusion of Rav Pesach Frank, whereas those who are strict regarding milk powder follow the Chazon Ish’s approach. In Eretz Yisrael this has become one of the major defining factors for the difference between what is called mehadrin (stricter) kashrus standard, and regular non-mehadrin hechsherim. The regular hechsherim allow use of non-chalav Yisrael milk powder (at this point, always imported from the United States) whereas the mehadrin hechsherim use only pure chalav Yisrael products. The non-chalav Yisrael milk powder is usually noted on the label with the statement, in Hebrew א. חלב נכרי, which stands for avak chalav nachri, or gentile milk powder. (By the way, no Eretz Yisrael hechsher allows use of regular unsupervised fluid milk as kosher; all hechsherim, both mehadrin and non-mehadrin, have accepted the position of the Chasam Sofer.)

Now that we are all a bit more educated about the topic, we might want to read up on the topics of chalav Yisrael butter and cheese.