Rabbi Avraham ibn Ezra, part II

A few weeks ago, we began reading about Rabbi Avraham ibn Ezra. This is a continuation of that article.

Rabbi Avraham ibn Ezra, part II

Question #1: The Right Bensch

“What is the correct text of our bensching?”

Question #2: Contract Law

“I signed a five-year employment contract, and now, three years later, I have an offer that is much better for me. Am I halachically required to turn down the new offer?”

Question #3: Pidyon Haben

“When should I schedule the pidyon haben of my son?”

Question #4: Touching Kuf

“If a sefer Torah was written in which the two parts of the letter kuf touch, is the sefer Torah invalid?”

Question #5: What is going on?

What do the previous questions have to do with one another, and with the title of this article?

Introduction:

Rav Avraham ibn Ezra, one of the early rishonim, is known as a commentator on Tanach, for his massive knowledge of Hebrew grammar (dikduk), philosophy, mathematics and astronomy, and for his skills as a paytan, a poet. In the first installment of this article, we discussed what we know of his personal history and his scholarship. At this point, we will discuss other aspects of ibn Ezra’s many contributions to Torah knowledge and observance.

Ibn Ezra and Kalir

One of ibn Ezra’s controversial positions was his strong opposition to the piyutim of Rav Elazar Kalir, the preeminent, prolific and perhaps earliest of the paytanim. In an essay incorporated in his commentary to Koheles (5:1), ibn Ezra levels harsh criticism against the piyutim authored by Rav Kalir. He divides his arguments into four categories.

Simplicity of language

Ibn Ezra notes that prayers should be recited in simple language. After all, a person should understand the prayers he utters. Since piyutim are usually intended as a form of prayer, one should not recite piyutim whose intent is not clear. Because of this, ibn Ezra advises reciting the piyutim written by Rav Saadyah Gaon, which can be understood literally.

Mixed language

Ibn Ezra’s second criticism of Kalir is that he mixed the Hebrew of his piyutim with vocabulary whose basis is in the Gemara, treating Talmudic language as if it were on the same level as the Hebrew of Tanach. As ibn Ezra notes, the Gemara (Avodah Zarah 58b) says “loshon Torah le’atzmah, loshon chachamim le’atzmo” which he understands to mean that the Hebrew used by the Gemara should be treated as a different language from that of Tanach. Therefore, one should not mix these two “languages” when reciting prayers.

Grammatical creativity

The third criticism of ibn Ezra is that he is unhappy with Kalir’s creative approach to Hebrew grammar and structure, allowing poetic style to influence the Hebrew that he used. Ibn Ezra also criticized Kalir’s creation of new words by changing masculine words to feminine, and vice versa, for poetic effect or to accomplish his allusions.

Use of midrashim

Ibn Ezra’s fourth criticism of Kalir is that his piyutim are filled with midrashim, which ibn Ezra contends should not be included in prayers.

Ibn Ezra notes that when Rav Saadyah wrote piyutim, he steered clear of these four problems. In fact, Sefardim do not recite piyutim of Rav Kalir, whereas among Ashkenazim he is the most commonly used paytan.

Ibn Ezra notes that there were those who took issue with him for criticizing Kalir, since the latter had passed on many years before and was unable to respond.

Response to ibn Ezra

We should note that Shibbolei Haleket quoted very selectively from this essay of ibn Ezra, omitting any mention of ibn Ezra’s criticism of Rav Kalir’s writings.

Furthermore, none of ibn Ezra’s criticisms should be taken as casting aspersion on Rav Elazar Hakalir’s greatness. Shibbolei Haleket records that when Rabbi Elazar Hakalir wrote his poem Vechayos Asher Heinah Meruba’os (recited in the kedusha of musaf of Rosh Hashanah), the angels surrounded him with fire (quoted by the Magen Avraham at the beginning of Siman 68). Similarly, Rav Chaim Vital writes that his teacher, the Arizal, recited only the piyutim written by the early paytanim, such as Rav Elazar Hakalir, since they are based on Kabbalah.

Mules, Megillas Esther and ibn Ezra

The Book of Esther uses a few words that appear to be transliterated terms of Persian origin. In some instances, the commentaries grapple with understanding the meaning of these words. For example, the Megillah describes how the “achashteranim benei haramachim” were sent to deliver an urgent message. But what do these words mean? The Gemara (Megillah 18a) mentions that the amora’im were unaware of the exact translation of these words. One of the halachic rishonim, the Rivash, concludes that the word achashteranim is a composite word meaning “mules whose mothers are mares,” citing ibn Ezra as his source (Shu”t HaRivash #390).

Ibn Ezra and halachah

Although ibn Ezra is noted primarily for his abilities in language, commentary, mathematics and astronomy, there are many places where he is cited by later authorities as a halachic source. For example, he is quoted authoritatively by the Avudraham, the Beis Yosef (Orach Chayim 188) and later authorities regarding a controversy surrounding the correct text of our bensching. He is also quoted by authorities in regard to the correct pronunciation of the name of Hashem (Beis Yosef, Orach Chayim 124).

Here are some other areas of halachah in which the ibn Ezra is quoted:

Contract law

“I signed a five-year employment contract, and now, three years later, I have an offer that is much better for me. Am I halachically required to turn down the new offer?”

There is discussion among halachic authorities about this topic, including several rishonim, the Rema (Choshen Mishpat 333:3) and the Shach (ad locum 333:17). In this context, ibn Ezra’s comments on Chumash are quoted as halachic authority. He understands that an eved Ivri, a Jewish slave, who is purchased for a maximum of six years, has worked mishneh s’char sachir, twice the amount of time usually allowed for a worker to commit himself. This means that the Torah does not recognize an employment contract that is longer than three years. His exact words are: “We find written ‘three years as the duration of a hired hand’ (Yeshayahu 16:14), and this is proof that a person does not have authority to hire himself out for more than three years. Furthermore, the one paying the wages cannot hire him [for more than three years]. And this is the reason [in the pasuk regarding the eved Ivri] for the word ‘mishneh – double’” (commentary to Devorim 15:18), since a Hebrew slave can be purchased for up to six years, or twice as long as an employment contract normally allows.

Inheritance of positions

In an interesting discussion germane to the laws of inheriting positions, ibn Ezra is quoted as supporting the right of a son-in-law to his late father-in-law’s rabbinic position, where no direct descendants are appropriate for the post (Shu’t Doveiv Meisharim Vol. 4). This is based on ibn Ezra’s comment that, at times, a son-in-law is referred to as a son (Bereishis 19:12).

When to redeem?

There is a discussion among halachic authorities as to whether the proper time to perform the mitzvah of pidyon haben is on the 31st day after birth, or after a lunar month equivalent (29 days, 12 hours, 44 minutes and 3.3 seconds) has passed since birth. In this context, some authorities quote ibn Ezra in support of the second approach (Shu’t Shevus Yaakov 2:87).

When is nightfall?

Ibn Ezra is perhaps the earliest authority to determine when nightfall occurs on the basis of astronomical calculation. He notes that the length of time between sunset and nightfall varies from place to place and is dependent on how long it takes the sun to reach a certain point beyond the horizon – what is called today the solar depression angle.

Matzoh and Hagadah

Ibn Ezra is quoted among the list of authorities who contend that eating matzoh on Pesach after the first night fulfills some level of mitzvah. Another halachah quoted in his name is the mitzvah of reciting the Hagadah the entire night of Pesach. Ibn Ezra cites an approach that the words leil shimurim, describing the Seder night, mean that we are supposed to be shimurim, not that we are the ones being protected. He explains this to mean that one should be alert and “on guard” throughout the night, using the night exclusively to thank Hashem and to retell the wondrous deeds He performed leading to and including our exodus from Egypt. This interpretation is also quoted in his name by poskim (Shu’t Seridei Eish 1:47).

Ibn Ezra and the physician

Another interesting halachic insight is quoted in his name. The Avnei Neizer, one of the greatest poskim of the late nineteenth century, was asked the following: A person is seriously ill, and the physicians have recommended that he take a medication that is non-kosher. Granted that this is pikuach nefesh, a life-threatening emergency, and therefore supersedes the requirement to keep kosher, is the patient permitted to be stringent and not take the medicine, or does this violate the Torah’s laws?

Ibn Ezra contends that the Torah’s instructions to heed medical opinion apply only to external injuries, but not to an internal medical condition. He states that in the era of prophecy, a prophet’s opinion about what was happening inside the body was more accurate than a physician’s. A result of this idea is that one is not required – and perhaps, according to ibn Ezra, not permitted – to violate a mitzvah for an internal remedy advised by a physician.

Together with other halachic reasons and bases, the Avnei Neizer rules that the individual does have the right to rely on these opinions and not consume non-kosher (Shu’t Avnei Neizer, Choshen Mishpat #193).

It should be noted that the late Klausenberger Rebbe ruled that today, since we now have various methods for checking what is going on inside our bodies, what would have been considered an internal matter in earlier days is now under the heading of something that doctors should treat, even according to ibn Ezra – and that, therefore, a person should definitely follow doctor’s orders (Shu’t Divrei Yetziv, Likutim #114).

Aliyah la’regel

In an interesting responsum of Rav Moshe Feinstein to the late Lubavitcher Rebbe, Rav Moshe rules that the mitzvah of being oleh regel, to visit the Beis Hamikdash grounds on the Yomim Tovim and offer korbanos, does not require that one walk to the har habayis, but that one may travel there in a different way (Shu’t Igros Moshe, Kodoshim #21. This responsum is located at the end of the first volume of Igros Moshe, Orach Chayim I). Rav Moshe brings support for this approach from the commentary of ibn Ezra.

Ibn Ezra and the kuf

One of the rishonim quotes ibn Ezra as the halachic authority to resolve the following question: If a sefer Torah was written in which the two parts of the letter kuf touch, is the sefer Torah invalid? The Tashbeitz, who was asked this question (Shu”t Tashbeitz 1:51), brings evidence from ibn Ezra that he held that it is perfectly fine, and even preferable, to write a sefer Torah this way. Although we do not follow this ruling, the Tashbeitz, based on ibn Ezra, did.

Conclusion

In conclusion, we see that ibn Ezra made many contributions to the halachic knowledge of Klal Yisroel. The main lesson to be learned from his life is that one should strive to grow in prayer and in studying and teaching Torah to the extent of one’s ability, notwithstanding the adversity of personal circumstances.

 

Bensching in the Dark on Rosh Chodesh

In honor of Rosh Chodesh later this week, and Purim in two more weeks, I present:

Bensching in the Dark on Rosh Chodesh

sunsetQuestion #1: Rosh Chodesh arrival

“I began eating dinner before Rosh Chodesh, but when I finished, it was dark. Do I recite Yaaleh Veyavo?”

Question #2: Rosh Chodesh departure

“I began eating dinner on Rosh Chodesh, but when I finished, it was dark. Do I recite Yaaleh Veyavo?”

Introduction

When we recite birchas hamazon on Shabbos, Yom Tov, Chol Hamoed, Rosh Chodesh, Chanukah and Purim, we include special prayers to commemorate the holiday: On Shabbos, a passage beginning with the word Retzei; on Yom Tov, Chol Hamoed, and Rosh Chodesh, the prayer Yaaleh Veyavo; and on Chanukah and Purim, Al Hanissim. However, it is inappropriate to recite these prayers on an ordinary weekday. What does one do when the date changes between the beginning of the eating of the meal and the bensching? Do we recite the bensching appropriate to the day on which the meal began or appropriate to when the meal ended?

Weekly seudah shelishis

Let us start this discussion with a very common application. Many people eat the last meal of Shabbos, colloquially but not accurately called shalosh seudos, late in the afternoon, finish after dark, and then recite Retzei in bensching. (The correct way to refer to this meal is seudah shelishis or seudah shelishit.) Most of us are unaware that this practice is disputed by early authorities. The Rosh (Shu’t HaRosh 22:6; Pesachim 10:7) asserts that once Shabbos is over, one cannot say Retzei. He compares this to davening a Shabbos prayer after the conclusion of Shabbos, which is certainly inappropriate. Just as the fitting prayer is determined by when one is praying, so, too, the correct text of bensching is determined by when one is reciting it. Similarly, in the Rosh’s opinion, a meal begun on Rosh Chodesh, Chanukah or Purim that continues into the night following the holiday should not include mention of the special day on which the meal began. This position is followed by the Rosh’s son in the Tur (Orach Chayim 695). According to this approach, the common practice of completing the Purim seudah after the day is over and including Al Hanissim in the bensching is incorrect.

A disputing opinion is quoted in the name of the Maharam (see Hagahos Maimaniyos, Megillah 2:14:1), which states that a meal begun on a holiday maintains its special mention, even when one bensches after the day is over. Thus, when one bensches on seudah shelishis after it is dark, one still recites Retzei. Similarly, if one’s Purim seudah extends into the night, one still recites Al Hanissim in the bensching. These laws apply, as well, on Yom Tov, Rosh Chodesh and Chanukah (Shulchan Aruch, Orach Chayim 188:10). The practice, already cited in earlier authorities, of completing the Purim seudah after the day is over and then reciting Al Hanissim is based on this position of the Maharam (Rema, Orach Chayim 695:3).

What is the Maharam’s rationale? According to one approach, his position is based on the concept that one can extend the sanctity of Shabbos, even after the day is technically over (Dagul Mei’revavah, end of Orach Chayim 188).

Of course, the question is how this affects Purim. The Maharam is quoted as ruling that one who began his meal on Purim, and completed it after the holiday is over, should still recite Al Hanissim in bensching. However, there is no Talmudic source to say that Purim has a concept of tosefes kedusha. According to the Dagul Mei’revavah’s approach to understanding the Maharam, one must assume that there is tosefes kedusha on Purim, Chanukah and Rosh Chodesh to the extent that one then recites the appropriate addition to the bensching.

Ending Shabbos before bensching

As we just explained, the Maharam rules that one recites Retzei on motza’ei Shabbos for a meal that began on Shabbos. However, if someone recited havdalah and has not yet bensched for seudah shelishis, he must omit Retzei, since recital of havdalah ends Shabbos. The same is true not only regarding havdalah, which clearly ends Shabbos, but even when one does anything implying that Shabbos is over – such as davening maariv or even simply answering Borchu, since these activities occur only after the conclusion of Shabbos (Shu’t Maharil #56). The Magen Avraham (188:17) notes that someone who davened maariv before Shabbos is over (which is halachically permitted under extenuating circumstances) does not say Retzei when he subsequently bensches, even though he is still required to observe Shabbos (since it is before nightfall). This ruling is followed by the Mishnah Berurah (188:32) and other authorities. The Magen Avraham (263:33) and other authorities are uncertain whether one who said hamavdil bein kodesh lechol after Shabbos is over, but has as yet not bensched after seudah shelishis, may still say retzei.

Halachic deciders

How do the halachic authorities decide regarding the dispute between the Maharam and the Rosh?

The Rema consistently follows the position of the Maharam (Orach Chayim 271:6; 695:3). However, it is a bit unclear how the Shulchan Aruch rules. He discusses these laws in three different places in Orach Chayim. In the laws of bensching (188:10), he concludes according to the Maharam that the structure of the bensching follows the beginning of the meal, whether it is Shabbos, Rosh Chodesh, Purim or Chanukah. When discussing a Purim seudah that continues into the night, the Shulchan Aruch (695:3) cites as the main opinion the position of the Maharam that one recites Al Hanissim in bensching, yet he quotes the Rosh as an alternative opinion that one omits Al Hanissim once Purim is over. However, regarding someone who concludes a meal on Friday afternoon immediately before Shabbos and who will be bensching on Shabbos, the Shulchan Aruch requires the person to include Retzei (271:6), even if he did not eat anything on Shabbos.

The Bach (188 and 695) views the Shulchan Aruch as being inconsistent, arguing that this last decision contradicts the position of the Maharam, which the Shulchan Aruch himself follows in 188 and 695. The Bach understands, as do other authorities (e.g., the Aruch Hashulchan 188:23), that, according, to the Maharam, the essential factor is when the meal began, whereas, according to the Rosh, the determining factor is what day it is at the moment of bensching. According to the Bach’s understanding of the Maharam, someone who began a meal before Shabbos and continued it into Shabbos should omit Retzei, which contradicts the conclusion of the Shulchan Aruch. The Bach’s approach is consistent with the ruling of the Rema.

There are other approaches how to resolve the conflicting rulings of the Shulchan Aruch. The Magen Avraham (271:14) explains that when a ruling is contingent on the dispute between the Maharam and the Rosh, one should say Retzei. That is, someone who eats Friday afternoon and is bensching on Shabbos should say Retzei, following the approach of the Rosh, whereas someone who eats on Shabbos and is bensching after Shabbos should recite Retzei, in accordance with the opinion of the Maharam.

However, other authorities contend that the Shulchan Aruch is following the Maharam consistently, but they understand the Maharam’s position differently from the way the Bach did. Whereas the Bach understood the Maharam to be saying that the sole determinant is when the meal began, they understand that either the beginning of the meal or the time of bensching determines whether we recite the special holiday prayer. In their opinion, if one began a meal on a holiday but bensched only after the holiday was over, one recites the appropriate holiday passage (Taz 188:7; Elyah Rabbah 188:20).

Tosefta

A compromise position

Until now, we have cited two early authorities, the Rosh and the Maharam, as the basic positions on this topic. There are later authorities who present a middle ground that clearly disagrees with both the Maharam and the Rosh (Magen Avraham 188:18, quoting Maharash, quoted by the Shelah and the Eimek Beracha; see also Shu’t Rema 132:5). This approach draws a distinction between a Shabbos meal extending after Shabbos and those of Rosh Chodesh and Chanukah extending after the respective holiday. Since there is a concept of tosefes Shabbos, i.e., the mitzvah to extend the day of Shabbos, the extension of the day retains sanctity, and therefore the meal is still considered a Shabbos meal warranting the recital of Retzei. However, since neither Rosh Chodesh nor Chanukah have a concept of tosefes kedusha, and, in addition, they have no requirement to eat special meals, the special prayer associated with them should not be recited once the day has passed.

Rosh Chodesh arrival

At this point, we can discuss our opening question:

“I began eating dinner before Rosh Chodesh, but when I finished, it was dark. Do I recite Yaaleh Veyavo?”

We need to ask a few questions: Did he eat on Rosh Chodesh? If he did, then according to Magen Avraham, Taz, Elyah Rabbah and Mishnah Berurah he should recite Yaaleh Veyavo, whereas according to the Aruch Hashulchan, and probably several other authorities, he should not. I would personally rule that he should follow the majority opinion and recite Yaaleh Veyavo in this situation.

If he did not eat on Rosh Chodesh, according to the Rosh and Magen Avraham, he should recite Yaaleh Veyavo. I refer our reader to his own posek for an answer what to do under these circumstances.

Rosh Chodesh departure

As far as our second question is concerned: “I began eating dinner on Rosh Chodesh, but when I finished, it was dark. Do I recite Yaaleh Veyavo?”

Assuming that he did not yet daven maariv, according to the Magen Avraham, Taz, Elyah Rabbah, Aruch Hashulchan and Mishnah Berurah, he should say Yaaleh Veyavo, whereas according to the Rosh, Tur, Maharash and Shelah he does not. It would seem to me that, in this instance, the halachah should not be affected by whether he ate after it became dark.

Conclusion

When we show how careful we are to honor Hashem with the appropriate wording of our bensching, we demonstrate our concern and our priorities. Whatever conclusion we reach regarding whether we recite these special inserts, we should certainly pay careful attention to the meaning of the words of one’s bensching at all times.

 

Nine and a Child

torah-1427213-639x479Since the beginning of parshas Tolados discusses the education of Yaakov and Esav, it is appropriate for us to discuss the topic of:

Nine and a Child

Question #1: Nine and a Chumash?

“A friend of mine once moved to a community where the local daily minyan was not that reliable. On a regular basis, services were conducted by having a ten-year old hold a chumash as the tenth man. Is there a basis for this practice?”

Question #2: Studying Chumash

“When the rishonim referred to a chumash, what did they mean? After all, they lived before the invention of the printing press.”

Answer:

When Avraham prayed for the people of Sodom and its four sister cities, he asked Hashem to save them if forty-five righteous people lived among them, which Rashi (18:28) explains would be the equivalent of a minyan of righteous people per city: nine plus Hashem counting as the Tenth. Can one consider that there is a minyan present with a quorum of less than ten?

The basis of this topic is the Gemara (Brachos 47b-48a), which discusses whether one may conduct services requiring a minyan or a mezuman when one appears to be short of the requisite quorum. Rabbi Yehoshua ben Levi ruled that if one has nine adults and a baby, one can bensch as if one has a minyan. Rav Huna stated that if one has nine adults present one can count the aron hakodesh to form a minyan. To this, Rav Nachman retorted, “Is the aron a person?” Rav Huna explained that he meant that there are situations in which a group of nine people can act as if they are a minyan. Rav Ami ruled that two great talmidei chachamim who sharpen one another in their halachic discussions can be considered the equivalent of three for a zimun. Rabbi Yochanan stated that a child who is almost bar mitzvah can be included as the third for a zimun. Some rishonim (Rabbeinu Yonah) quote a text that concludes that, on Shabbos, one can make a mezuman with two adults – with the day of Shabbos counting as the third “person.”

However, the Gemara concludes that we do not permit a mezuman with less than three adults or a minyan with less than ten — the only exception being that we can count a child for a zimun, if he is old enough to know to Whom we are reciting a brocha. Nevertheless, Rabbeinu Tam rules that one may rely on the above-quoted opinion of Rabbi Yehoshua ben Levi that nine adults and a baby qualify as a minyan even for prayer (Tosafos, Brachos 48a). The Rivash feels that one should not follow the lenient approach, but rules that those who do rely on it can do so only when the child is at least nine years old (Shu’t Harivash #451). Others understand that a minor can be counted as the tenth man, but only if he is twelve years old, which halachah recognizes as an age of majority regarding oaths and vows (Rabbeinu Yonah). We should note that none of these authorities permit counting more than one child to complete a minyan.

Nine and a chumash

Tosafos (Brachos 48a s.v. Veleis) reports that some people counted a child holding a chumash as the tenth “man.” He then notes that Rabbeinu Tam criticized this approach, explaining that if we follow Rabbi Yehoshua ben Levi’s opinion, a child qualifies as the tenth man even if he is not holding a chumash, and if we do not follow that opinion, counting a child holding a chumash is without halachic basis. Rabbeinu Tam explained further that even should one locate a statement of Chazal that a child holding a chumash completes a minyan, the ruling would mean a chumash as was commonly used in the days of Chazal, which comprised one of the five chumashim (Bereishis, Shemos, Vayikra, Bamidbar, or Devorim) of the Torah written as a scroll, similar in style and appearance to a small sefer Torah or a navi scroll used for reading the haftarah. However, in the time of Rabbeinu Tam, although chumashim were still handwritten, they were no longer written as scrolls, but were bound into books. Thus, there would be no basis to permit counting a child holding the type of chumash used in his era.

What is the source?

What is the source for this custom of counting a child with a chumash for a minyan? Rabbeinu Tam was unaware of any such source in the halachic literature that he knew. However, since the practice was widespread, the possibility existed that there was a halachic source somewhere. Bear in mind that in the days of the rishonim, all halachic material was handwritten, almost always on parchment, and that it was therefore very expensive and difficult to have access to seforim. (Rabbeinu Tam lived approximately 300 years before the invention of the printing press.) Rabbeinu Tam had such profound respect for this custom of Klal Yisroel that he assumed that there probably was a statement of Chazal somewhere, one that he had never seen, with a source for the custom. This is what the Gemara refers to as hanach lahem leyisroel, im ein nevi’im hein, bnei nevi’im hein (see Pesachim 66a), “allow Jews [to continue their practice], if they are no longer prophets, they are descended from prophets,” and their customs are based on solid foundations.

However, Rabbeinu Tam understood that should such a statement of Chazal exist permitting a child holding a chumash to be counted as the tenth, it would include only a chumash written as a scroll and would not apply to what existed in his day.

Later authorities note that having a child hold a sefer Torah would count as the tenth man, according to this custom. Furthermore, Rav Moshe Feinstein (Shu’t Igros Moshe, Orach Chayim 2:18) notes that the requirement of having the child hold a sefer Torah scroll would not require that it be a kosher sefer Torah. Even a sefer Torah that is invalid because some words are no longer legible would qualify as a holy scroll for the purpose of counting towards a minyan.

Do we permit a child+Torah?

Most rishonim rule that one cannot count a child as the tenth man even when he is holding a chumash or a Torah. For example, the Rambam (Hilchos Tefillah 8:4) rules that a minyan for prayer must be a minimum of ten men, although for bensching he allows that the tenth “man” be a child who is seven years old or more (Hilchos Brachos 5:7). This is based on his understanding of the conclusion of the Gemara (Brachos 48a) we quoted above that allows counting a child for a mezuman or minyan for bensching, and this forms the basis of Sefardic practice. However, regarding prayer the Rambam does not allow counting a child who is holding a chumash or a sefer Torah. Praying with a minyan requires ten adult men, no exceptions.

Nevertheless, the Tur mentions that “some permit the inclusion of one child with nine adults if they place a chumash in his hand.” The Tur then notes that his father, the Rosh, wrote that one should never count a child as part of a minyan or a mezuman. This Rosh is the main approach followed by Ashkenazim.

Kerias Hatorah

Some early authorities conclude that a minor cannot be counted as the tenth “man” of a minyan for bensching or for prayer, but can be counted to allow the reading of the Torah (Tashbeitz Katan #201). The reason for this distinction is that a minor can sometimes be given an aliyah to the Torah (see Shulchan Aruch, Orach Chayim 282:3 and commentaries). Some authorities permit giving a child even one of the seven aliyos, and all authorities permit giving a child maftir and having him read the haftarah. Thus, for this mitzvah he is indeed considered a man.

The Magen Avraham (55:4; 690:24) cites this position of the Tashbeitz, but does not accept it, demonstrating that both the Shulchan Aruch (Orach Chayim 143:1) and the Rema (Orach Chayim 690:18) do not accept the line of reasoning proposed by the Tashbeitz (see also Pri Megadim, Eishel Avraham 55:4).

Shulchan Aruch and Rema

In regard to prayer, the Shulchan Aruch (Orach Chayim 55:4) concludes: “Some permit the recital of devarim she’be’kedusha [meaning kaddish, borchu, kedusha, reading of the Torah, etc.] when there are nine adults and one minor who is older than six years and understands to Whom we pray. However, this opinion is not accepted by the greatest of the authorities.” With these words, the Shulchan Aruch provides honorable mention to Rabbeinu Tam’s opinion that a child can count, on his own, as the tenth man, but he follows the majority of rishonim who reject it. The Rema comments that although one should not count a child as part of the minyan even if he is holding a chumash, there are those who permit it under extenuating circumstances.

Difference between bensching and davening

Some authorities note a curious reversal in the positions of the Shulchan Aruch and the Rema. The Shulchan Aruch rejects counting a child as the tenth man for tefillah (Orach Chayim 55:4), but accepts counting him as the tenth or third man for bensching purposes (Orach Chayim 199:10). This, of course, reflects the position of the Rambam and most Sefardic Rishonim.

On the other hand, although the Rema mentions the practice of counting a child as the tenth man under extenuating circumstances, he absolutely rejects counting him as the third or tenth for bensching (Orach Chayim 199:10). Thus, he accepts the Rosh’s ruling not to count a child as the third or tenth man for bensching, and cites a leniency only with regard to davening. This is strange, since the halachic sources imply that there is more basis to be lenient regarding bensching than there is regarding davening.

The Maharsham explains that the Rema rules that a minor can count as part of the minyan only if he holds a scroll, which to us would mean that he must hold a sefer Torah. In shul, one may take a sefer Torah out of the aron hakodesh and place it in a child’s arms in order to have a minyan. However, one would not be permitted to bring a sefer Torah to the dining room, and for this reason the Rema rules that one can never include a child in the count of a minyan or mezuman for bensching.

Later authorities

The Magen Avraham (55:5), whose opinion is highly respected by the later authorities, concludes that one may include one minor holding a chumash, but not more than one, to enable the recital of borchu, kedusha or a kaddish that is a required part of davening. However, when relying on a child to complete the minyan, one should not recite any of the kaddeishim at the end of davening (other than the full kaddish recited by the chazzan), since they are not obligatory. This means that when having a minyan of nine plus a child holding a sefer Torah, one may not recite kaddish after Aleinu, or after the shir shel yom.

After quoting this statement of the Magen Avraham, the Mishnah Berurah writes that many later authorities rule that one should not count a child as part of a minyan even under the limited circumstances established by the Magen Avraham. However, the Graz (Rav Shulchan Aruch 55:5) rules that one should not correct someone who completes a minyan under extenuating circumstances by counting a child at least six years old who understands to Whom we are davening, even if the child is not holding a chumash.

We should note that, although the Magen Avraham ruled that even those who are lenient permit the inclusion of only one child, a much earlier authority (Shu’t Min Hashamayim #53) ruled that one may include even two children, provided they are old enough to daven. He explains that since the mitzvah of davening with a community is rabbinic in origin, a child old enough to daven can be included in the count since he is also required to daven as part of his training in the performance of mitzvos (Mishnah, Brachos 20). (The obvious question is that this reasoning should permit counting more than two children, yet Shu’t Min Hashamayim permits only two, but we will leave this question for the moment.)

The shul in which I don’t daven!

In this context, it is highly educational to study two relatively recent cases recorded in the responsa literature. In the late nineteenth century, the Bruzhaner Rav, known also as the Maharsham, Rav Shalom Mordechai Hakohen Shvadron (the grandfather of Rav Shalom Shvadron, the famed maggid of Yerushalayim), was asked the following (Shu’t Maharsham 3:162): The only minyan in a small community in Hungary has been meeting for the past 25 years on Shabbos and Yom Tov in the house of a local wealthy individual. Recently, this individual has been insisting that they incorporate certain innovations in the davening, including changing the nusach of the “shul,” and requiring that the audience recite the entire davening extremely quietly and that not even amen should be answered aloud. The individual who owns the house where the minyan has been davening has now agreed to allow some members of the community to form their own separate minyan whereby they will be able to daven as they are accustomed. However, the group desiring to form their own shul has only nine adult men. Their question: May they lechatchilah begin their own shul, knowing that, according to most authorities, they will not have a minyan?

After listing many of the authorities who rule that they are forbidden to conduct services because they do not have a proper minyan, the Maharsham concludes that he is highly wary of the baal habayis of the original shul and therefore feels that they should rely on the lenient opinions and form their own minyan. He further concludes that they could rely on the opinion that, if necessary, upon occasion, they could have two children holding sifrei Torah to complete the minyan, thus ruling according to the above-quoted Tashbeitz and against the Magen Avraham. The Maharsham is the only late authority, of whom I am aware, who permits eight men plus two children to be considered a minyan.

Another responsum

Rav Moshe Feinstein was asked a similar question in which an established shul’s membership had dwindled to the point where there were only nine adults at its daily minyan. If the shul cannot count a child for the daily minyan, it will be forced to disband. Rav Moshe discusses whether they may continue their minyan notwithstanding the fact that there is another shul in the neighborhood, although it is a bit distant. Rav Moshe notes that although a majority of poskim contend that one should not allow the recital of kaddish, kedusha, etc. when there are less than ten adult men present, maintaining the existence of this shul is considered extenuating circumstance. Since the prohibition of reciting a davar she’be’kedusha without a minyan is only rabbinic, this extenuating circumstance would allow one to follow the minority opinion against the majority. He concludes that since the members of this shul may not make the trek to the other shul, and will also stop attending the shiurim provided in their current shul, the minyan should be continued.

Rav Moshe then raises a few practical questions. The Magen Avraham, upon whom Rav Moshe is relying, permits counting a child for the tenth man only if he is holding a sefer Torah. However, this creates two interesting halachic questions.

  1. One is not permitted to hold something while reciting shma and the shemoneh esrei, so how can the child be holding the sefer Torah then?
  2. While the sefer Torah is being held by someone who is standing, everyone is required to be standing, which means that the entire membership of this shul will be required to stand for the entire davening. (It appears that Rav Moshe understands that one may count the child for a minyan only when he is standing. I am unaware of the source for this ruling.) Therefore, Rav Moshe suggests that the sefer Torah be placed on a table, and that the child stand next to the sefer Torah with his hands holding the atzei chayim, the “handles” of the sefer Torah, which Rav Moshe considers equivalent to holding the sefer Torah.

Rav Moshe writes that it is preferable to have a 12-year-old child hold the sefer Torah, citing the authorities we quoted above who permit a 12-year old to be the tenth man of a minyan.

Rav Moshe recommends that the shul relying on these heterim not have a repetition of shemoneh esrei (chazaras hashatz). This is because reciting chazaras hashatz without a minyan present involves a brocha levatalah, a brocha in vain, which, according to some authorities is prohibited min hatorah. Rav Moshe rules that the chazzan should not recite the quiet the shemoneh esrei, but, instead, should wait until everyone has finished their shemoneh esrei and then he should recite his own shemoneh esrei aloud.

Conclusion

At this point, let us return to our opening question: “A friend of mine once moved to a community where the local daily minyan was not that reliable. On a regular basis, services were conducted by having a ten-year old hold a chumash as the tenth man. Is there a basis for this practice?”

If we follow Rav Moshe’s psak and consider it applicable to their situation, then a child should hold the atzei chayim of a sefer Torah that is placed on the table. Only the kaddeishim required according to halachah should be recited, and no mourner’s kaddish or kaddish derabbanan. The chazzan should preferably not recite his own quiet shemoneh esrei.

The Gemara teaches that Ein Hakadosh Baruch Hu mo’eis bitefillasan shel rabim, Hashem never despises the prayers of the community. Certainly, this should inspire all of us to daven with the tzibur whenever we can.