How Many Should Be Saying Kaddish?

Question: Is it better that each mourner recite only one kaddish, or that all the mourners recite all the kaddeishim?

Answer: Most people are under the impression that whether the “mourner’s kaddish” (kaddish yasom) is recited by only one person or whether many recite it simultaneously is a dispute between the practices of Germany and those of Eastern Europe. However, we will soon see that this simplification is inaccurate. There were many communities in Eastern Europe where kaddish was said by only one person at a time, and this was the universal Ashkenazic practice until about 250 years ago.

The custom that many people recite the mourner’s kaddish simultaneously was accepted and standard Sefardic practice (meaning the Jews of North Africa and the Middle East), going back at least to the early 18th century (see Siddur Yaavetz, comments after Aleinu), although when this custom was instituted is uncertain. But before we explore the issue of whether more than one person may say kaddish simultaneously, let us first examine the origins of reciting the mourner’s kaddish altogether.

Origins of kaddish

Although the Gemara refers to kaddish in numerous places (Brachos 3a, 57a; Shabbos 119b; Sukkah 39a; Sotah 49a), it never mentions what we call kaddish yasom,the kaddish recited by mourners, nor does it recommend or even suggest, anywhere, that a mourner lead the services. The Gemara, also, makes no mention of when kaddish is recited, with the exception of a very cryptic reference to kaddish recited after studying aggadah (see Sotah 49a). A different early source, Masechta Sofrim, mentions recital of kaddish before borchu (10:7) and after musaf (19:12). The fact that the Gemara says nothing about a mourner reciting kaddish or leading services is especially unusual, since the most common source for these practices is an event that predates the Gemara. The Or Zarua, a rishon, records the following story:

Rabbi Akiva once saw a man covered head to toe with soot, carrying on his head the load that one would expect ten men to carry, and running like a horse. Rabbi Akiva stopped the man, and asked him: “Why are you working so hard? If you are a slave and your master works you this hard, I’ll redeem you. If you are so poor that you need to work this hard to support your family, I’ll find you better employment.”

The man replied, “Please do not detain me, lest those appointed over me get angry at me.”

Rabbi Akiva asked him: “Who are you, and what is your story?”

The man answered: “I died, and every day they send me like this to chop and carry these amounts of wood. When I am finished, they burn me with the wood that I have gathered.”

Rabbi Akiva asked him what his profession was when he was alive, to which he answered that he had been a tax collector (which, in their day, meant someone who purchased from the government the contract to collect taxes) who favored the rich by overtaxing the poor, which the Or Zarua calls “killing the poor.”

Rabbi Akiva: “Have you heard from your overseers whether there is any way to release you from your judgment?”

The man responded: “Please do not detain me, lest my overseers become angry with me. I have heard that there is no solution for me, except for one thing that I cannot do. I was told that if I have a son who would lead the tzibur in the recital of borchu or would recite kaddish so that the tzibur would answer yehei shemei rabba mevorach…, they would release me immediately from this suffering. However, I did not leave any sons, but a pregnant wife, and I have no idea if she gave birth to a male child, and if she did, whether anyone is concerned about teaching him, since I have not a friend left in the world.”

At that moment, Rabbi Akiva accepted upon himself to find whether a son existed and, if indeed he did, to teach him Torah until he could fulfill what was required to save his father. Rabbi Akiva asked the man for his name, his wife’s name, and the name of the town where he had lived. “My name is Akiva, my wife’s name is Shoshniva and I come from Ludkia.”

Rabbi Akiva traveled to Ludkia and asked people if they knew of a former resident, Akiva, the husband of Shoshniva, to which he received the following answer: “Let the bones of that scoundrel be ground to pulp.” When Rabbi Akiva asked about Shoshniva, he was answered: “May any memory of her be erased from the world.” He then inquired about their child, and was answered: “He is uncircumcised — for we were not interested in involving ourselves even to provide him with a bris milah!” Rabbi Akiva immediately began his search for the son, whom he located — it turned out that he was already a young adult. Rabbi Akiva performed a bris milah on him and attempted to teach him Torah, but was unable to do so. For forty days, Rabbi Akiva fasted, praying that the child be able to study Torah, at which time a heavenly voice announced: “Rabbi Akiva, now go and teach him Torah!”

Rabbi Akiva taught him Torah, shema, shemoneh esrei, birchas hamazon, and then brought him to shul in order for him to lead the tzibur by reciting kaddish and borchu, to which the tzibur responded, Yehei shemei rabba mevorach le’olam ule’olmei olemaya and “Baruch Hashem hamevorach le’olam va’ed.

At that moment, Akiva, the husband of Shoshniva, was released from his punishment. This Akiva immediately came to Rabbi Akiva in a dream and told him: “May it be Hashem’s will that you eventually reach your eternal rest in Gan Eden — for you have saved me from Gehennom.” (This story is also found, with some variation, in the second chapter of Masechta Kallah Rabasi.)

Other versions

When a different rishon, the Rivash, was asked about this story, he reported that it is not found in the Gemara, but perhaps its origin is in Midrash Rabbah or Midrash Tanchuma. He then quotes a story from the Orchos Chayim similar to that quoted by the Or Zarua. In conclusion, the Orchos Chayim emphasizes that, for the twelve months of mourning, a mourner should recite the last kaddish of the davening, maftir on Shabbos and Yom Tov, and lead the services for ma’ariv every motza’ei Shabbos (Shu’t Harivash #115).

A similar story is recorded in an earlier midrashic source, the Tanna Devei Eliyahu, where the protagonist is not Rabbi Akiva but his rebbe’s rebbe, Rabbi Yochanan ben Zakai (see Rambam, Peirush Hamishnayos, end of the fifth chapter of Sotah). In this version, the man was punished until his son turned five and was educated to the point that he could answer borchu in shul (Eliyahu Zuta,Chapter 17). No mention is made of the son reciting kaddish. However, the halachic sources all quote the version of the Or Zarua, in which the protagonist of the story is Rabbi Akiva.

Merits for the deceased

This story serves as the basis for the practice that a mourner leads the services and recite kaddish. Relatively little of this topic is discussed until the time of the Maharil, who was asked the following question:

“Should someone who is uncertain whether his father or mother is still alive recite kaddish?”

To this question, frequent in earlier times when cell phones were not so commonplace, the Maharil replied that he is not required to recite kaddish and he should assume that his parent is still alive (see Mishnah, Gittin 3:3). Once the parent reaches the age of eighty, one should view it as uncertain whether the parent is still alive. Upon this basis, I am aware of a gadol be’Yisrael who had escaped Hitler’s Europe before the war, who began to recite kaddish for his parents once the Nazis invaded the part of Russia where his parents were living.

The Maharil continues that if there are two people in shul, one reciting kaddish for a deceased parent and one who is uncertain whether his parents are still alive, the second person should not recite kaddish. This is because of the halachic principle of ein safek motzi midei vadai, someone who has a questionable claim does not preempt someone who has a definite claim or right — the person whose parents might still be alive should not recite kaddish, rather than someone whose parents are known to be deceased. This ruling of the Maharil assumes that kaddish is recited by only one person at a time.

The Maharil explains that, for this reason, he himself did not say kaddish when he was uncertain whether his parents were still alive. He then explains that someone who is not sure whether his parents are still alive and is capable to lead the services properly should lead the services in honor of his parents (Teshuvos Maharil #36).

Conclusions based on the Maharil

We see from the Maharil’s discussion that:

–          Only one person recites kaddish at a time.

–          Someone with living parents should not recite mourner’s kaddish because he is pre-empting mourners from reciting kaddish.

–          When no mourner will be leading the services, someone uncertain if he is a mourner should do so, provided he can do the job properly.

Obligatory versus voluntary kaddish

The Maharil (Shu’t Maharil Hachadoshos #28) was also asked how may a minor recite kaddish if it is a required part of davening, as only one obligated to fulfill a mitzvah may fulfill a mitzvah on behalf of others. The Maharil answered that the kaddeishim that are recited by the shaliach tzibur as part of davening cannot be recited by minors. These kaddeishim are obligatory and must be recited by an adult, who fulfills the mitzvah on behalf of the community. However, non-obligatory kaddeishim, such as kaddish derabbanan and the kaddeishim recited at the end of davening, may be recited by minors. As a curious aside, the Mesechta Sofrim (10:7) explains that these kaddeishim were established primarily as make-up for people who arrived late and missed the kaddeishim that are required.

It is curious that, already in the time of the Maharil, people assumed that the mourner’s kaddeishim are more important than those of the chazzan. The Maharil points out that this is incorrect, since the kaddeishim recited by the chazzan are required, and it is greater to perform a mitzvah that is required than something non-obligatory (gadol ha’metzuveh ve’oseh mimi she’eino metzuveh ve’oseh). There is greater merit to recite the kaddeishim of the chazzan that are part of davening.

Since minors cannot be chazzan, the Maharil rules that they should be called up for maftir, which a minor may receive, since they thereby recite borchu in front of the tzibur.

Mourner’s kaddish on weekdays

It appears from the Maharil’s responsum that, prior to his era, kaddish yasom was recited only on Shabbos and Yom Tov. In his day, a new custom had just begun in some communities to recite mourner’s kaddish on weekdays. The new custom enabled minors to recite kaddish daily and accommodated adults whom the tzibur did not want leading services.

Which kaddeishim should be said?

The Maharil writes that although the following kaddeishim are not required but customary, they should still be recited: after a shiur is completed, after bameh madlikin on Friday evening, and after pesukim are recited, such as when we recite kaddish after aleinu and the shir shel yom. He rules that someone whose parents are still alive may recite these kaddeishim. However, if his parents do not want him to recite these kaddeishim, he should not.

One at a time

At this point, let us address our opening question: Is it better that each mourner recite only one kaddish, or that all the mourners recite all the kaddeishim?

It appears that, initially, whoever wanted to recite what we call today the mourner’s kaddeishim would do so. Knowing the story of Rabbi Akiva, it became an element of competition, with different people trying to chap the mitzvah. This situation sometimes engendered machlokes and chillul Hashem. To resolve this problem, two approaches developed for dealing with the issue. Sefardim followed the approach that all who wanted to say kaddish recited it in unison. This practice is praised by Rav Yaakov Emden in his commentary on the siddur (at the end of Aleinu). Among Ashkenazim, the approach used was to establish rules of prioritization, whereby one person at a time recited kaddish.

These prioritization rules are discussed and amplified by many later Ashkenazi authorities, implying that the early Ashkenazi world had only one person reciting kaddish at a time. We do not know exactly when the custom began to change, but by the late eighteenth/early nineteenth century, several major Ashkenazi authorities, among them the Chayei Odom (30:7) and the Chasam Sofer (Shu’t Orach Chayim #159; Yoreh Deah #345), discuss a practice whereby kaddish was recited by more than one person simultaneously. About this time, we find another custom in some communities, in which the mourner’s kaddish was said by only one person, but where everyone who chose could join in the recital of a kaddish derabbanan that was recited at the end of the daily morning prayer (see Shu’t Binyan Tziyon #1:122), presumably after the rav taught a shiur in halachah.

Merged community

With this background, we can understand the following mid-nineteenth century responsum. An Ashkenazi community had two shullen and several shteiblach. The main shul was in serious disrepair, so an agreement was made to close all the smaller shullen in order to pool resources and invest in one large, beautiful new shul and have no other minyanim. Part of the plan was that the new shul would permit all mourners to recite all the kaddeishim in unison. Subsequently, some individuals claimed that the community should follow the practice of the Rema and the Magen Avraham of prioritizing the recital of kaddish and having one person say it at a time. The community leaders retorted that this would create machlokes, since there would be only one shul and many people would like to say more kaddeishim than they can under the proposed system. Apparently, the dispute even involved some fisticuffs. The community sent the shaylah to Rav Ber Oppenheim, the rav and av beis din of Eibenschutz. He felt that the community practice of having all the mourners recite kaddish together should be maintained, but first wrote an extensive letter clarifying his position, which he sent to Rav Yaakov Ettlinger, the premier halachic authority of central Europe at the time. I will refer to Rav Ettlinger by the name he is usually called in yeshiva circles, the Aruch Laneir, the name of his most famous work, the multi-volumed Aruch Laneir commentary on much of Shas. The Aruch Laneir’s reply was subsequently published in his work of responsa called Shu’t Binyan Tziyon.

The Aruch Laneir contended that one should not change the established minhag of Germany and Poland, in practice for more than three hundred years, in which only one person recites kaddish at a time. He further notes that, although the Yaavetz had praised the practice that several people recite kaddish in unison, the Yaavetz himself had lived in Altoona, Germany, where the accepted practice was that only one person said kaddish at a time. (The Aruch Laneir notes that he himself was the current rav of Altoona and had been so already for several decades.)

Furthermore, the Aruch Laneir contends that one cannot compare Ashkenazic to Sefardic observance for a practical reason. The Sefardim are accustomed to praying in unison, and therefore, when they say kaddish, everyone exhibits great care to synchronize its recital. When Ashkenazim attempt to recite kaddish in unison, no one hears the kaddeishim. The Aruch Laneir notes that when the kaddish derabbanan is recited by all mourners, the result is a cacophony. He writes that he wishes he could abolish this custom, since, as a result, no one hears or responds appropriately to kaddish.

In conclusion, the Aruch Laneir is adamant that where the custom is that one person at a time recite kaddish, one may not change the practice. On the other hand, we have seen that other authorities cite a custom whereby all the mourners recite kaddish in unison.

Conclusion: How does kaddish work?

The Gemara (Yoma 86a) records that any sin that a person commits in this world, no matter how grievous, will be atoned if the person does teshuvah. This does not mean that the teshuvah accomplishes atonement without any suffering. Some sins are so serious that a person must undergo suffering in this world, in addition to performing teshuvah, before he is forgiven.

The greatest sin a person can be guilty of is chillul Hashem. Only teshuvah, suffering, and the individual’s eventual demise will be sufficient to atone for this transgression. Thus, a person’s death may result from his having caused a chillul Hashem.

The Maharal of Prague had a brother, Rav Chayim, who authored a work entitled Sefer Hachayim, in which he writes that most people die because they made a chillul Hashem at some point in their life. The reason a mourner recites kaddish is to use the parent’s death as a reason to create kiddush Hashem – by reciting kaddish – thus, atoning for the original chillul Hashem (Sefer Hachayim, end of chapter 8). May we all merit creating kiddush Hashem in our lives.

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A Kosher Bakery

Question #1: Sodium stearyl lactylate

Is sodium stearyl lactylate kosher?

Question #2: Vegan treif!

How can you create a non-kosher product by mixing two perfectly kosher ingredients, where both raw materials are completely vegan?

Question #3: Distinguished bourekas?

How distinguished can a boureka be?

Introduction:

As educated Jews, we should know what is involved in maintaining proper kashrus in a twenty-first century commercial bakery. There are many different areas that need to be addressed to ascertain that a bakery is properly kosher. This article will provide an overview of some of those aspects.

Are all the raw materials kosher?

Of course, the ingredients in the bakery must be kosher. There are many ingredients that potentially can create serious kashrus issues in a bakery, including oils, shortenings, dough conditioners and release agents. (Release agents are used to prevent baked goods from sticking to the pans on which they are baked.)

Oils and shortenings can be manufactured from non-kosher animal sources. In addition, even when oils and shortenings are made from vegetable sources, edible-oil refineries often process products made from beef tallow, lard or non-kosher fish on the same equipment that they refine vegetable oil products. This creates a kashrus problem for two reasons:

(1) The manufacturer has no incentive to clean the equipment between productions of animal and vegetable fat products, and, therefore, a run of a non-kosher product usually leaves a considerable amount of fat on the equipment. These leftovers subsequently become mixed into whatever is manufactured next.

(2) Since the refining of these products is done at high temperatures, the vegetable oil absorbs non-kosher flavor.

Dough conditioners

Calcium stearyl lactylate and sodium stearyl lactylate are common dough conditioners used by most commercial bakeries. Among the many benefits these ingredients provide is that they improve the texture and appearance of the finished product and also help it remain fresh for a longer period of time.

How do you make calcium stearyl lactylate and sodium stearyl lactylate? Well, the “stearyl” part of these products is stearic acid, which is usually made from non-kosher animal fat, but can be produced from kosher vegetable sources. Although lactic acid, the source of the “lactylate,” is usually made from kosher and pareve sources, it can be derived from dairy ingredients, or even from non-kosher whey. Thus, both calcium stearyl lactylate and sodium stearyl lactylate must be from reliable, kosher-supervised sources.

Raisin juice

Raisins can create a halachic problem that may go unnoticed by the inexperienced. In addition to being careful that there are no concerns about insects in the raisins, raisins are often mixed or cooked with water to create raisin juice, which functions both as a sweetener and as a natural, healthful preservative. However, this raisin juice has a halachic status of wine, and, when handled by a non-Jew, becomes prohibited because of stam yeinam. Thus, there can be a very unusual situation where mixing two kosher ingredients, raisins and water, creates a non-kosher product. Since all bakeries have non-Jewish workers, it could create a kashrus issue without anyone realizing that there is a potential problem.

Dairy bread

Because of concern that someone might eat fleishig bread with dairy, or milchig bread with meat, Chazal prohibited adding dairy ingredients to bread or greasing a tray with fleishig fat prior to baking bread. Certain exceptions were allowed, such as when making a very small amount of bread that will be consumed at one meal without any left over, or baking bread with an unusual shape that would cause someone to ask why this bread looks different.

Dairy pastry

The halachic authorities discuss whether we need to have the above concern when preparing a product that is usually not eaten together with the main course. The consensus is that one may add dairy ingredients to pastry items that are ordinarily not eaten with meat, but are usually eaten either as dessert or as a snack. However, one may not add dairy or meat ingredients to crackers, zwieback or similar items that are sometimes eaten with meat or cheese (Shu”t Maharit 2:18; Chachmas Adam 50:3). Other authorities are lenient even regarding crackers and zwieback, contending that Chazal prohibited mixing dairy or meat ingredients only into regular bread (She’eilas Yaavetz #62; see Pri Chodosh, Yoreh Deah 97:1).

There is a later opinion that disagrees with the above and contends that one may not make dairy products that one may mistakenly eat for dessert after a meat meal (Yad Yehudah, Peirush Ha’katzar 97:3).According to the first approach I mentioned, it is permitted to make milchig cake, cookies or doughnuts. The second approach requires that dairy cakes and cookies must be made in a way that it is obvious that they are milchig, or they must be marked in a way that calls attention to their dairy status.

Distinguished bourekas

Based on this latter approach, bakeries in Eretz Yisrael today usually make cheese bourekas in a triangular shape and pareve bourekas in rectangular shapes.

Notwithstanding this practice, common custom is to assume that the prohibition against making dairy dough products applies only to bread.

What if it happened by mistake?

What is the law if someone is making dough, and some milk spills into it unintentionally? Is there a basis to be lenient, since the person was not trying to violate Chazal’s rule not to make dairy bread?

The logic to be lenient here would be true, if the prohibition against eating dairy or meat bread was a penalty that Chazal imposed on someone who violated their instruction not to add dairy or meat product to dough. However, this is not the reason for the prohibition. The rule was established to guarantee that no one mistakenly violate the laws of eating meat and milk together. Thus, the prohibition exists, whether the milk (or meat) was added intentionally or in error.

Nevertheless, when there was an unintended spill of meat or dairy and a major loss would result, the Chachmas Adam (50:5) permits giving each family only one loaf of dairy bread for immediate consumption (see also Aruch Hashulchan, Yoreh Deah 97:8; Yad Yehudah, Peirush Hakatzar 97:4). This is permitted, because each receives an amount that he will finish in one day, and you do not need to be concerned that someone will forget and eat the leftover bread with dairy or meat.

Commercial bakery

There are authorities who permit a commercial bakery to manufacture a large quantity of dairy bread, as long as it is careful to sell to each individual or household only a small amount that he will eat at one time, without any leftovers (Shu”t Kesav Sofer, Yoreh Deah #61). This logic might permit a kashrus agency to certify a company that makes dairy bread, provided it sells its products in very small units. The Yad Yehudah (Peirush Hakatzar 97:7) raises a similar issue regarding whether a Jew may purchase a very small quantity of dairy bread from a non-Jewish owned bakery, just as he is permitted to make a very small quantity of dairy bread for himself. The Yad Yehudah prohibits this for an unrelated reason, because of the problem of chalav akum, that milk and milk products may not be purchased from a non-Jew, unless the dairy product was supervised from the time of its being milked. In today’s world, where many authorities permit non-chalav Yisroel milk because we can assume that a dairy or producer would use only cow’s milk, it would seem that one might be permitted to purchase dairy bread for a meal at a time and consume it in its entirety. However, the Maharit rejects this heter, raising concern that the baker may forget to tell his customers that the bread is dairy (Shu”t Maharit 2:18).

Pareve bread on dairy equipment

Is it permitted to make pareve bread on dairy or meat equipment, or is this included in the prohibition of making milchig or fleishig bread? In halacha, this is referred to as whether nat bar nat (literally a taste that is son of a taste) of dairy or meat, is still considered milchig or fleishig. There is a leniency about this mentioned in the Gemara.

Some authorities contend that the leniency of nat bar nat applies only to pareve food placed in a kli sheni, that is,in a bowl in which hot meat had been placed after being removed from the fire. However, pareve food placed in a fleishig or milchig kli rishon, i.e., a bowl or pot that had previously been on the fire and now has been removed, may not be treated as pareve. In other words, if a tray used to bake chicken was removed from the oven and fully cleaned, bread now placed on the tray may not be eaten with milchig (Rivan quoted by Tosafos, Chullin 111b).

However, most rishonim disagree and permit food cooked in a kli rishon meat pot to be eaten with dairy, provided the equipment is clean from significant meat residue. Following their approach, there is no problem eating bread that was baked on a milchig or fleishig tray, even if the tray was used to cook dairy or meat immediately before thebread. The Shulchan Aruch (Yoreh Deah 95:1) follows this position and this is the accepted practice among Sefardim.

However, the Rema (ad loc.) rules that one should not eat pareve food prepared this way with the opposite (i.e., eating food heated on a meat tray with dairy, or eating food heated on a dairy tray together with meat). This is the approach followed by Ashkenazim. Thus, according to the Rema, not only must the hechsher be careful that the bakery’s bread contain no dairy ingredients, it also must ascertain that it is not baked on dairy trays.

Pas Yisroel

Another issue that needs to be resolved is whether the bakery is certified to sell pas Yisroel or not. Pas Yisroel means bread baked by a Jew, or where a Jew participated in its baking. Pas paltur means bread baked by a gentile for sale, which one is permitted to eat, at least when certain conditions exist, as I will explain.

According to the Shulchan Aruch and the Shach, it is permitted to eat pas paltur only when no comparable pas Yisroel is available. However, if the pas paltur tastes better, or someone wants a variety of bread that is not available locally as pas Yisroel, he may use pas paltur. Nevertheless, according to this opinion, he should constantly assess whether pas Yisroel is available before using pas paltur.

Some authorities permit purchasing pas paltur even when pas Yisroel is available, in a situation where there is not enough pas Yisroel for everyone (Kaf Hachayim, Yoreh Deah 112:30). They also permit pas paltur when purchasing exclusively pas Yisroel would drive up its price (Kaf Hachayim, Yoreh Deah 112:30).

Other authorities are more lenient, ruling that pas paltur is always permitted (Rema). This heter was so widespread that the Rema, in Toras Chatas, his detailed work on the laws of kashrus, wrote: “Since the custom in most places (regarding the consumption of pas paltur) is to be lenient, I will not expound on the topic at length, because the widespread practice is to permit this bread and eat it, even when pas Yisroel is available. Therefore, one who is careful about pas Yisroel may choose to be machmir to the extent that he wants.”

In this context, I would be remiss not to mention a dispute among acharonim whether there is any reason not to use pas paltur bread that is baked in a large commercial bakery, since the customer never meets the employees (see Shu”t Maharit Tzahlon #161, quoted by Birkei Yosef, Yoreh Deah 112:9).

Making it pas Yisroel

Notwithstanding that the Rema concludes that pas paltur is permitted, all agree that there is a preference to eat pas Yisroel. Among the rishonim, we find a dispute whether the Jew’s participation in the baking of the bread must have some significance to it to make it pas Yisroel, or whether a symbolic involvement is sufficient. The conclusion of most authorities is that a symbolic act, such as tossing a splint into the oven, is sufficient (Rambam; Tosafos; Ran; Shulchan Aruch, Yoreh Deah 112:9).

The Shulchan Aruch (112:10) also concludes, based on a statement of the Mordechai, that if the gentile baked a few times in one day, and the Jew did not throw a splinter into the fire on one of those occasions, the bread is still considered pas Yisroel, on the basis of an earlier throwing. The Rema follows an even more lenient interpretation and rules that if a Jew added to the flame once, all the bakings made in that oven are pas Yisroel, until the oven is down for 24 consecutive hours. The rationale behind this last approach is that the heat from the previous bakings, which had a halacha of pas Yisroel, is as significant to the future bakings as having a Jew add a splinter to the flames.

Today’s pas Yisroel

Contemporary gas or electric ovens do not accommodate adding a splinter of wood to the oven’s fuel. Nonetheless, it is very easy to make the bread pas Yisroel even in a large commercial bakery that operates seven days a week,. Simply have a Jew adjust the thermostat downward for a second, until he sees that this has stopped or decreased the flow of fuel, and then set the thermostat back to its original setting. The product quality is not affected at all, and this renders all baked goods at this bakery pas Yisroel for the foreseeable future.

When the above method is not an option, such as in a bakery that is not in operation seven days a week, another contemporary solution is often suggested. The hechsher places a glowbar, an electrical unit inside the oven that participates in all the baking. Since the glowbar is turned on only by someone Jewish, such as the visiting mashgiach, all breads baked in that oven are now pas Yisroel. (We should note that there are some rabbonim who do not approve of a glowbar for pas Yisroel, for reasons beyond the scope of this article.)

Gluten-free bread

In today’s world, gluten-free bread and pastry have become very popular items. Since they are usually made without the five grains (wheat, barley, spelt, rye and oats), they may not require pas Yisroel, but may involve a more serious prohibition, bishul akum. Gluten-free products are made without wheat, rye, barley or spelt, and use, instead, gluten-free starches such as manioc, arrowroot, tapioca, plantain or oats, the last of which can be made gluten free relatively easily. (Please note that there are many different types of gluten intolerance; a small percentage of people are sensitive to oat starch.)Bread baked from most of these grains (with the exception of oats) is not considered bread according to halacha, and therefore has no issue of pas akum. However, they may be categorized as cooked items, and potentially prohibited as bishul akum. Whereas I noted above that pas akum produced for commercial sale is permitted according to many authorities in all circumstances, and, according to all authorities in some circumstances, the prohibition against bishul akum, foods cooked by a non-Jew do not carry these lenient rulings.

We find discussion among earlier authorities regarding baked products produced from rice flour, without any of the five grains included. Some authorities contend that where bread from rice or similar grains is commonly eaten, there is a concern of bishul akum (Pri Chadash, Yoreh Deah 112:5). This approach is implied by the Rosh and by the Rema (Toras Chatas, 75:11). Others contend that there is no bishul akum concern, because rice bread is not oleh al shulchan melachim (Bach; Shach; Shu”t Avnei Neizer, Yoreh Deah 92:7). I leave it to each individual to ask his rav or posek whether he should be concerned about bishul akum regarding these products.

Separating challah

In previous articles, I have discussed the issues about separating challah. The question of separating challah is contingent only on whether the dough is owned by someone Jewish, but not on who actually mixes the dough. In other words, if a Jew owns the bakery, there is a requirement to separate challah, even if the workers making the dough are non-Jewish. If the owner is not Jewish, there is no requirement to separate challah, even if the worker mixing the dough is Jewish. The halacha is the exact opposite of the rules that govern pas Yisroel and bishul Yisroel where the status is contingent on the person who makes the product, not on who owns it.

Tola’im

Of course, the hechsher also needs to make certain that the raw materials and the production facility itself are maintained in a way to resolve all kashrus concerns about insect contamination.

Conclusion

Based on the above information, we can gain a greater appreciation of how hard it is to maintain a high kashrus standard. We certainly have a greater incentive to become better- educated kosher consumers who understand many aspects of the preparation of kosher food, and why it is important to ascertain that everything one consumes has a proper hechsher. We should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

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Geneivas Da’as

Question #1: “Stealing” Minds

How do you “steal someone’s mind”? Is that like borrowing his brains?

Question #2: Potential Guests

May I invite someone for a meal, knowing that he always declines invitations?

Question #3: Mistaken Identity

Someone donated money to our organization, but it is clear that she did not realize what we do. Must I bring this to her attention?

Question #4: Permission to Deceive

Am I ever permitted to be deceptive?

Introduction

When someone deceives his fellowman, he may violate two different prohibitions of the Torah. The first is called ona’ah, cheating or taking unfair advantage. Selling something that is definitely worth less than the money received qualifies as ona’ah that the Torah forbids. This includes selling merchandise that is defective in a non-obvious way, or engaging in a transaction on the basis of insider information. It also includes over-presenting a product or disguising its blemishes.

In most circumstances, if ona’ah was violated, the cheated party has a halachic right to get his money back or to be compensated the difference in value. There are many more details concerning the prohibition of ona’ah, which I discussed in a previous article, How Much May I Charge.

Geneivas da’as

This article will deal with a different form of deception called geneivas da’as, literally “stealing a mind.” This means that a person misleads someone else concerning a matter or item. This is prohibited, even when the deceived party does not lose money or value as a result. It applies even in non-financial matters; intentionally misleading someone is prohibited as geneivas da’as.

There are several halachic differences between ona’ah and geneivas da’as. As I mentioned above, if a situation violates ona’ah, the cheated party may be entitled to invalidate the entire sale, or to receive back the amount of the deception. (In some instances when the amount of deception is small relative to the value of the sale, halacha does not require restitution. I refer you to the above-referenced article.) On the other hand, geneivas da’as does not require restitution, since there was no direct financial benefit as a result of the deception that occurred.

Here are a few examples of geneivas da’as:

Deception without cheating

1. The deceiver convinces his customer that the item has a benefit that it does not have. This is forbidden, even though the feature does not increase the item’s sale value.

2. Misleading a customer to think that he is getting a bargain, when he is buying something at its correct price, is geneivas da’as. In other words, it is prohibited to tell someone that the item is being sold at a discount, when the purchaser is paying the actual worth of the merchandise. There is deception going on, even though there is no cheating. Notwithstanding that the buyer is not losing any money, he is still being deceived, and this is a violation of geneivas da’as.

A purchaser may also violate geneivas da’as, if he attempts to convince the seller that the item is worth less than it really is. Also, note that there might be a prohibition of ona’ah if your customer assumes the product to be higher quality than it is, and therefore, agrees to a price that is inappropriately high.

Donations

3. Here is another instance that involves geneivas da’as: someone donated money to tzedakah, specifically requesting that the money be used for a particular cause, but the money is instead diverted to a different purpose. For example, taking funds earmarked to help destitute Torah scholars and using the money for people who are not scholars or not even observant of mitzvos involves geneivas da’as (Orach Meisharim 24:7). Since this is a violation of geneivas da’as, it applies equally if the donor is non-Jewish.

However, if the use is included in the term the donor expressed when he made his donation, it is not geneivas da’as. For this reason, we can explain the famous, although possibly apocryphal, anecdote attributed to the Ponevitzer Rav. A person who was not observant made a large donation to theRav, specifying that the money be used for Torah study by students who would not be wearing yarmulkas. The Ravused the money to fund a Beis Yaakov, which certainly met the requirements as expressed by the donor, although it may not have been what he intended.

Similarly, it is said that the Klausenberger Rav, who did not accept donations for his Torah mosados from individuals who were not Shomrei Shabbos, accepted donations from non-observant individuals for his “institutions,” and used the funds for Laniado Hospital.

Mezuzah for a gentile

Rav Moshe Feinstein rules that the following case is an example of geneivas da’as: A gentile asked his Jewish landlord to place a mezuzah on the gentile’s door. Rav Moshe prohibits placing an invalid mezuzah on the door, because of geneivas da’as (Shu”t Igros Moshe, Yoreh Deah 1:184).

Giddin and gentiles

In parshas Vayishlach, the Torah teaches us the mitzvah of gid hanasheh, the prohibition of eating the sciatic nerve, which runs along and over the thigh bone. The Mishnah (Chullin 93b) states that it is permitted to send the leg portion of a shechted animal to a non-Jew with the gid hanasheh intact, because it is obvious that it is there. The Gemara is highly curious as to what the Mishnah is trying to teach. There is nothing wrong with a non-Jew eating gid hanasheh, since this is not one of the mitzvos which he is commanded. If the concern is that the non-Jew may sell the meat to a Jew who does not realize that the gid hanasheh is still there, why would a Jew be purchasing unmarked meat from a non-Jew?

After the Gemara presents several attempts to explain the Mishnah, the Gemara concludes that the Mishnah is teaching us about geneivas da’as. It is prohibited to mislead the non-Jew into thinking that you are selling him a portion of meat in which the gid hanasheh has already been removed, notwithstanding that this piece of information is basically irrelevant to him. Although the removal of the gid does not create any greater value to the non-Jew, he should not be given the impression that you sold him a product that had greater value to the Jewish seller than it really did.

Although this level of deception is not considered ona’ah (because it makes no financial difference to the purchaser), it is still prohibited as geneivas da’as, because the purchaser feels a small level of obligation, thinking that he received a product that had more value to the seller than to him, when indeed this was not true. In some future matter, he might decide to give you something to which you are not entitled, because he feels an unjustified sense of obligation to you.

Shemuel’s crossing

Once, the great amora, Shemuel, while traveling, crossed a river on a ferryboat. He asked his attendant to pay the ferry master for their fares. The attendant bartered with the ferry master, and gave him a slaughtered chicken as payment, implying that this chicken was kosher, when it was not. This act on the part of his attendant irked Shemuel, since this was an act of geneivas da’as. Notwithstanding that, to the non-Jewish ferry master, kosher and non-kosher chicken have the identical value, leading him to think that the chicken was properly kosher when it was not implies that you are giving the non-Jew something more valuable (from your perspective) than it was.

Thus, we see that giving someone an impression that you are doing him a bigger favor than you actually are violates geneivas da’as. However, we should note that most authorities contend that you violate geneivas da’as only when you say or do something that misleads the other person, but if you acted as you typically would, and there is no reason for him to think that you are misleading him, you are not in any violation.

Therefore, if the other person deceives himself, there is no violation of geneivas da’as. An example of this is when a person assumes that you attended an event specifically in his honor, but you work in that neighborhood where the event took place. Since younever said or implied that you made the trip especially for him, this is not geneivas da’as. Geneivas da’as is only if you say or do something that might lead him to such a self-deception. Therefore, it is forbidden to imply to someone that you made a special trip to attend his simcha, when, in fact, you had to be in that area anyway.

Two concerns

Geneivas da’as involves two concerns, one for the deceived party and the other for the deceiver.

It is also damaging to the individual who does the deceiving because he habituates himself to live with untruth. Of course, this affects his neshamah, and a person must train himself to live with truth.

This might be a reason why the Rambam discusses the laws of geneivas da’as in two different places: in Hilchos Dei’os (2:6), where he usually discusses how we are to develop our personalities in a Torah way, and in Hilchos Mechirah (18:1), where he discusses the laws of business honesty and ona’ah.

Non-business

The Gemara mentions several instances of geneivas da’as that have nothing to do with financial matters. An example of this is begging someone repeatedly to join you for a meal, when you do not really want him to come, and you are inviting him because you know that he will turn down the invitation (Chullin 94a). This is prohibited because the invited party feels some level of obligation to reciprocate this false invitation, and it also trains the inviter to act falsely, pretending that he wants to have this guest when he does not. Similarly, it is forbidden to send someone gifts repeatedly knowing that he does not accept them. The giver wants the intended recipient to feel indebted to him, without it costing the giver anything.

At this point, let us discuss the second of our opening questions: “May I invite someone for a meal, knowing that he always declines invitations?”

If I truly want him to visit me, there is no violation of geneivas da’as. If I don’t necessarily want him to visit, I may invite him a few times to show my respect for him. However, once he has made it clear that he does not want to accept the invitation, I should invite him only if I truly want him to come. We will also see, shortly, that if I feel that people are not showing him proper respect, I may continue to invite him (even if I don’t really want him to come), if I feel that this may influence others to respect him.

The charlatan

Here are a few more examples of geneivas da’as:

Someone who acts as a big tzadik in front of people, but is, in private, not halachically meticulous (Tosafos, Bechoros 31a s.v. vechulan and s.v. ika). This display of righteousness is a form of deception (see Sotah 21b; 22b).

Implying to someone that you did something special for him when you didn’t.

Acting as if you are someone’s best buddy, but your intention is for something else. You are misleading him to think that you are his friend. In other words, where someone is אחד בפה ואחד בלב, his actions or verbal statements imply one goal, but his heart has a different goal, he is in violation of geneivas da’as (Orach Meisharim).

Why is it called geneivas da’as?

Geneivas da’as, literally, “stealing a mind,” means creating a false impression – that is, deluding a person, i.e., giving him a false perception of reality. The Gemara (Chullin 94a) rules asur lignov da’as ha’beriyos, “it is prohibited to steal someone’s mind.”

At this point, we can address the opening question: How do you ‘steal someone’s mind?’ Is that like borrowing his brains?

No, it is not. Geneivas da’as, which can literally be translated as “stealing his mind,” means to mislead or deceive him, even when the misled party is not losing anything material as a result. Simply leaving him with a wrong impression violates the prohibition.

Mistaken identity

At this point, we can begin discussing the third of our opening questions: “Someone donated money to our organization, but it is clear that she did not realize what we do. Must I bring this to her attention?”

I was once faced with this type of situation. Let me present what happened: A school that I taught in asked me to visit a gentleman who had, a few years before, made a very generous donation. After a bit of work locating him and being able to schedule an appointment with him, it was quite clear to me that he was confusing me with someone else, and that he might have been confusing the school’s program with that of another institution. In other words, there seemed to be a case of mistaken identity. Was I required to call this to his attention?

Anyone who has this question should address it to his own rav or posek. I can tell you what I did under the circumstances, which was a split-second decision without any opportunity either to research the shaylah or to discuss it with anyone.

First of all, I had not tried to deceive the potential donor. I had been supplied with accurate information that he had made a few very large donations, and that the school had tried to be in touch with him several times, unsuccessfully, in recent years. None of this involved any deception.

I presented to him many of the special, and perhaps unique, features of our institution and emphasized aspects that I thought would attract him to make another substantive donation to our cause. None of this involved any deception.

At some point in the conversation, it became clear to me that he was confusing me with someone else whom he had met previously. To this day, I do not know with whom he was confusing me, but I certainly made no attempt to create any deception.

I neither denied nor sustained his assumption that we had met before. I simply noted that he had made very significant donations in the past, and that we were hoping he would be interested in continuing the relationship.

In short, I think I handled the situation in a way that was completely honorable from a halachic perspective.

I am sure that our readers want to know if the organization actually did receive the hoped-for donation. Unfortunately, it did not.

Permission to deceive

At this point, let us discuss the last of our opening questions: “Am I ever permitted to be deceptive?”

Notwithstanding that geneivas da’as is forbidden, and it appears that most rishonim prohibit it min haTorah, there are a few instances that may appear as if they are geneivas da’as, but are permitted halachically. In other words, although they appear to be geneivas da’as, they are not.

One situation is when you do something that otherwise would be geneivas da’as, such as, you tell people that a person is a greater Torah scholar than he really is, because your goal is that others will treat him with the respect that he deserves.

Dealing in kind

There is another instance in which halacha permits someone to overlook the geneivas da’as that will result. When dealing with someone dishonest, it is permitted to act deceitfully, if it is necessary to protect yourself. For this reason, it was permitted for Shimon and Levi to deal deceitfully with Shechem.

Conclusion

The Gemara tells us that the great tanna, Rabbi Yehoshua, the rebbe of Rabbi Akiva, was asked: “What is the best means to become wealthy?” Rabbi Yehoshua advised that, aside from being very careful in one’s business dealings, the most important factor is to daven to He Who owns all wealth (Niddah 70b). A Jew must realize that Hashem’s Torah and His awareness and supervision of our fate is all-encompassing. Making this realization an integral part of our thinking is the true benchmark of how His kedusha influences our lives.

The true believer in Hashem and His Torah understands that every aspect of his life is directed by Hashem, and that the only procedures we follow in any part of our lives are those that the Torah sanctions.

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Chol HaMoed – Weekday or Yom Tov?

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

Question #2: The supermarket has something on sale on Chol HaMoed that I need right after Yom Tov. May I purchase it?

Question #3: I am visiting my parents in Chutz La’aretz for Yom Tov. I know that I must keep two days of Yom Tov while visiting them, but does that permit me to cook on Chol HaMoed for their Acharon shel Pesach?

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

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

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

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

DEFINING WORK ON CHOL HAMOED

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

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

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

There are three basic interpretations of this Gemara:

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

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

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

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

This last reason is a theme that lies behind the complex details of hilchos Chol HaMoed; we desist from activity that detracts from the purpose of Yom Tov. For this reason, Chazal prohibited some activities on Chol HaMoed that are not necessarily melacha but nonetheless detract from the Yom Tov experience.

These prohibited activities include:

1. Commerce that is not necessary for the festival.

2. Moving to a new residence.

COMMERCIAL ACTIVITY

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

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

Thus, according to the Gemara and the Shulchan Aruch, a Jew may not open his store for business as usual on Chol HaMoed (see Shu”t Chasam Sofer #1). In the modern world, this is a hardship for business owners who may lose regular customers to their competitors who do not observe Chol HaMoed. The poskim consider loss of regular customers as a davar ha’avud (see below) that allows the business to make some accommodations (see Biur Halacha 539:5).

MOVING

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

EASY WORK

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

FOOD PREPARATION

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

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

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

MA’ASEH HEDYOT, UNSKILLED WORK

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

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

In general, one may not do skilled work on Chol HaMoed. Therefore, one may not develop film (should you still have such film), even for a festival purpose, since this is skilled work. However, one may use a digital camera or print out pictures on Chol HaMoed, since no skill is involved. Similarly, one may not repair shoes on Chol HaMoed since this is skilled work. Theoretically, one may repair them in an unskilled way or with a shinui, meaning in an unusual way; however, neither of these methods is usually a practical way to repair shoes. As we will see later, one may not have a gentile shoemaker repair them either.

MAY I REPAIR A GARMENT FOR YOM TOV WEAR?

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

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

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

“A WORKER WHO DOES NOT HAVE FOOD TO EAT”

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

DAVAR HA’AVUD, FINANCIAL LOSS

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

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

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

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

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

LAUNDRY

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

Chazal permitted laundering handkerchiefs and children’s clothes, since even if they are washed before Yom Tov they get soiled very quickly (Mishnah Moed Katan 14a; Shulchan Aruch, Orach Chayim534:1).

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

WORK THROUGH A GENTILE

May a gentile do on my behalf on Chol HaMoed the kind of work that Chazal prohibited me to do myself?

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

WHY IS THIS CASE DIFFERENT?

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

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

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

2. I do not instruct him to work on Chol HaMoed, and I hire him before Yom Tov.

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

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

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

HOW CAN CHOL HAMOED BE STRICTER THAN SHABBOS?

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

However, on Chol HaMoed a frum Jew might be traveling and see Tim mowing Friedman’s lawn and think that a Jew hired Tim to work on Chol HaMoed. Therefore, Tim may not mow the lawn or trim the hedges on Chol HaMoed (Moed Katan 12a; Shulchan Aruch, Orach Chayim 543:2).

Chol HaMoed provides many unique mitzvah opportunities. By observing it properly, we demonstrate the tremendous Os between Hashem and us. May we always merit demonstrating Hashem’s presence amongst us and in His world!!

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Medical Procedures on a Parent

The beginning of Parshas Tazria includes references to parent-child relationships…

Question #1: My Daughter, the Surgeon

“I specifically want my daughter to perform my upcoming operation. Is this permitted?”

Question #2: My Son, the Medic

“May my son, a trained medic, give me my daily shot?”

Foreword

One of the many mitzvos mentioned in parshas Mishpatim is capital punishment for someone, male or female, who strikes his or her parent. As we all know, the aseres hadibros include a mitzvah of kibud av ve’eim, honoring parents, and the Torah also has another mitzvah of yiras av ve’eim, treating parents with awe (Vayikra 19:3). Obviously, the opposite extreme is someone who curses or strikes his parent. Yet, there are situations in which the parent wants the child to “wound” him because of the resultant benefit. For example, if the parent needs open heart surgery, and the child is the most qualified thoracic surgeon available, he would probably want him or her to perform the operation. (We are assuming, of course, that the “child surgeon” in this instance feels that he can make objective medical decisions.) Another situation is that the parent requires an injection and it is more convenient or less expensive to have the child, who is a nurse, physician or medic, administer the injection. Yet a third, common situation is when the child is a dentist and will provide free dental care to the parent, but this involves either a painkilling shot or causing the gums to bleed.

Introduction

Although the Torah states that someone who strikes his parent shall be put to death, we know that capital punishment is meted out only when:

(a) a beis din of 23,specially-ordained dayanim rule this way,

(b) the crime is witnessed by two halachically valid witnesses,

(c)  the defendant receives a clear warning prior to performing his criminal act,

(d) he acknowledges to have understood the warning, including the ramifications of its punishment, and

(e) he commits the crime immediately (Rambam, Hilchos Mamrim 5:5).

The potential capital punishment meted out by the Torah for striking a parent establishes this as a major sin, a significant factor relating to our opening questions (see Sanhedrin 84b).

Our first discussion will be about the passages in the Mishnah and in the Gemara, located in Sanhedrin 84-85, that discuss the halachic details of this prohibition. The Mishnah (Sanhedrin 85b) states that someone who strikes his father or mother is deemed punishable by the death penalty only when he draws blood. The poskim provide three instances to explain what this means:

(1) We see blood from the injury (Bava Kama 86a). Bear in mind that bleeding can be tiny, painless and insignificant; yet, that would be included in the Torah’s prohibition. Examples of causing bleeding would include injecting something directly into a vein or pressing against sensitive gums.

(2) An injury in which it is noticeable that there is bleeding under the skin, called colloquially a “black and blue mark.”

(3) An ear injury that causes deafness, which is an indication that the blow caused internal bleeding (Bava Kama 86a, 98a).

The Gemara (84b) states that the punishment for striking a parent does not exist if the wound was for a medical purpose, such as using a needle to remove a thorn, lancing a boil, or bloodletting.

Having ruled that it is permitted to cause therapeutic bleeding on a parent, the Gemara tells us that Rav did not allow his son to remove a thorn from him, nor did Mar berei de Ravina allow his son to drain a boil. The Gemara questions: why should a son performing this procedure on his father be any different from anyone else performing this procedure on his fellowman? There is a lo sa’aseh min haTorah to injure another Jew, but this action is permitted when it is beneficial. Upon this basis, we have blood tests, perform surgery and donate blood. What difference does it make whether the practitioner performs this service for his parent or for anyone else?

The Gemara answers that the concern is that if the person performing the procedure cuts more than is necessary, this is a negligent (shogeig) violation of the prohibition. We are more concerned about a child performing this act on his parent, since this involves a more serious violation than injuring a fellow Jew. Thus, we view with greater concern something for which the Torah prescribes a high level of punishment – and there is a difference in practical halacha that results from the greater degree of culpability.

Prohibited or suggested?

The rishonim note that Rav and Mar brei deRavina seem to disagree with the previous passage of the Gemara, which permits a child to perform a medical treatment on a parent, even when it causes bleeding. Are these amora’im, Rav and Mar berei deRavina, disputing the previous conclusion of the Gemara, or, perhaps, is there another way to explain the differences between the rulings? In fact, there are numerous approaches to answer this question, two of which figure prominently among the (see Beis Yosef and Bach, Yoreh Deah 241):

(A) Rav and Mar berei deRavina conclude that, although a child may carry out these medical acts when no alternative exists, he may not do so when someone else is available to perform them (Rambam, Hilchos Mamrim 5:7). However, when no one who can perform the treatment is available, the child may do so, and we are not concerned about a potential mishap. This approach is followed as definitive halacha by the Rema and others (Bach, Gra).

(B) Others conclude that, indeed, Rav and Mar brei deRavina disagree with the position of the Gemara, cited earlier, and rule that a child may not perform therapeutic activity that will cause bleeding on a parent. Since this is the last opinion mentioned in the passage of Gemara, it is accepted by these rishonim (Beis Yosef,in his understanding of the position of the Rif and Rosh). The Shulchan Aruch (Yoreh Deah 241:3) rules that this is the halachic conclusion.

So, at this point, we see that the Shulchan Aruch, usually followed by Sefardim, rules that a therapeutic treatment that causes bleeding cannot be performed by a child, even when no one else is available. The Rema and other early Ashkenazic authorities permit a child to perform these treatments when no one else is available.

When is it considered that someone else is available? What is the halacha if the procedure can be performed by someone else, but the parent prefers that the child does it. For example, the child is a well-known heart surgeon, but the surgery is considered routine and any competent thoracic surgeon should be able to perform it successfully.

Similarly, if the child will charge his parent less than someone else will, is this permitted? Notwithstanding that cost is not usually a factor when we deal with violating Torah prohibitions, here, it may be a factor, because the parent, who wants the child to perform the activity, is not violating any prohibition of the Torah. Thus, if the parent wants the child to perform the procedure because it will now be gratis, many authorities consider this as if there is no one available other than the child (Aruch Hashulchan, Yoreh Deah 241:6; Gesher Hachayim 2:1; Minchas Shelomoh 1:32)

My daughter, the surgeon

At this point, we can answer the first of our opening questions: “I specifically want my daughter to perform my upcoming operation. Is this permitted?”

The answer is that if your daughter is Ashkenazi, it is permitted, but if she is a Sefardiyah, it probably is not.

Mechilah

Does it make any halachic difference if the parent is mocheil the child in advance for any unintended injury? The Minchas Chinuch contends that had Rav and Mar berei deRavina stated that they were completely mocheil their sons, even if the result was an unintended injury, there would be no problem for the sons to perform the procedure. In the opinion of the Minchas Chinuch, the case of the Gemara is when Rav and Mar berei deRavina never declared that they were completely mocheil their sons, regardless of the result. Rav Shelomoh Zalman Auerbach rules that this approach of the Minchas Chinuch should be given credence, at least as a tziruf, which means that we may use this as a heter, combined with other reasons to be lenient.

The Minchas Chinuch proposes a further novel suggestion germane to this prohibition. He contends that if a father asks a son to injure him, there is no prohibition on the son to do so. He understands this to be included in the rule that a parent is permitted to be mocheil on his honor. However, as is noted in Minchas Shelomoh (page 184 note 2), this last opinion of the Minchas Chinuch runs contrary to a ruling of the She’iltos of Rav Achai Gaon (She’ilta #60) wherein it states that, whereas a parent may be mocheil on kavod, as is done whenever a mother prepares meals for adult children, this does not permit striking, cursing or treating a parent with disdain, which is prohibited even if the parents grant permission.

Injection

At this point, let us discuss the second of our opening questions: “May my son, a trained medic, give me my daily shot?”

Most people would not be that concerned whom they entrust with giving them a shot, provided the individual is a medical professional with proper training. According to what we have explained until this point, it would seem that, according to all poskim, this should not be performed by a child for a parent.

However, there are some differences between this case and the situations discussed by the Gemara. Inoculations and most other shots are injected into a muscle, and should not cause any bleeding. Does this permit this action, even when another professional is available, or is it no different from therapeutic bloodletting or boil lancing that is permitted, even according to the Rema, only when no one else is available? Furthermoroe, if a medical professional will charge to give the shot, but the child will do it gratis, does this permit the child to perform it?

These two questions were discussed by Rav Yechiel Michel Tukachinsky, a highly respected posek of old yishuv Yerushalayim, in his magnum opus, Gesher Hachayim (Volume II, Chapter 1). There, he mentions that he was asked a shaylah by an emergency medical technician whose mother required regular injections whether he could do them for her, something which would save both of them an appreciable amount of money. Since the Rema paskins that a physician should not perform bloodletting on his parent whenever there is another physician available who can, does that preclude a son from injecting his mother?

The Gesher Hachayim presents three reasons why he believes that it might be permitted:

(1) All the situations we have so far described involve causing bleeding for a therapeutic reason. The concern is the child might cause more bleeding than necessary. However, intramuscular shots do not usually cause any bleeding at all. Although they could cause bleeding, since, in most instances no bleeding occurs, we do not need to be concerned.

(2) To understand his second approach, I note the following: In the case of surgery, a surgeon decides where and how to make the incision. If the child surgeon uses a technique that causes more bleeding than is necessary, this might be considered a negligent violation of the Torah law.

Similarly, in the instances of bloodletting, the practitioner decides how much blood he needs to remove and, in the case of boil lancing, how he will lance the boil. There is ample room for a judgment error that will cause a greater amount of bleeding than the situation requires. On the other hand, the medic in our case of an injection is not deciding how much bleeding or cutting is necessary. Therefore, there are grounds to allow the son to provide this injection for his mother.

(3) The son’s willingness to work without charge is considered as if no one else is available. The logic is that Mom is not required to hire someone to give her the injection, when her son is willing to do so for free. After all, it is not her prohibition. Once she decides that she does not want to hire someone, no one is providing her with the necessary service, and the son is not required to hire someone to take his place.

Rav Tukachinsky then reports that after he thought of these three reasons to permit the son to inject his mom, he sent the shaylah to many rabbonim of Yerushalayim to see if they agreed with his conclusion. The three rabbonim who, indeed, answered him and agreed with him all dated their responsa, from which we see that this shaylah came up in the spring of 1944. The three rabbonim were:

(1)  Rav Yitzchak Halevi Herzog, a close, personal friend of Rav Tukachinsky, who was the Ashkenazi Chief Rabbi of Eretz Yisroel at the time.

(2) Rav Tzvi Pesach Frank, who was the rav of Yerushalayim.

(3) Rav Shelomoh Zalman Auerbach, at the time a very young, up-and-coming superstar in psak halacha. In addition to his reply published in Gesher Hachayim, a longer form of his reply is supplied in Minchas Shelomoh (#32).

Applying leaches

Rav Tukachinsky then discusses a similar, related question whether a child may apply leaches to a parent’s wound. Is this considered that the child is injuring the parent in a way that causes bleeding? Rav Tukachinsky was not convinced that this is permitted, but

Rav Shelomoh Zalman Auerbach permitted it for two reasons: When applying leaches, the leaches do not begin to draw blood immediately, and therefore this is not equivalent to striking and drawing blood from a parent. Instead, it is an indirect action that would be exonerated from capital punishment. Once this action is no longer included under the Torah’s punishment, the prohibition to perform it on one’s parent is the same as on anyone else, and is permitted when done for therapeutic reasons.

Secondly, since the parent has the ability to pull off the leaches before they begin to suck blood, the child has not inflicted any injury (Minchas Shelomoh #32:4).

Conclusion

In conclusion to this article on the concepts of kibud horim, I would like to share a comment that I once responded to in an advice column: “My mother-in-law and I have an excellent, warm relationship. However, one area of conflict causes her anxiety and me irritation. The issue is attending the weddings of extended family members, which is very large (sic.) and there are many weddings. She claims that not attending the weddings of these family members, whom I hardly know, rebels against the family norm. I attend about two or three of these weddings every year, when it works out for my schedule, and I forgo the others so that I have more time for professional work, housework, family time and much-needed sleep. On the rare occasions that I attend, I don’t know most of the people there, and I don’t feel my presence appreciated enough for me to have killed a night. My mother-in-law agreed that I present this issue to the rav. Please advise.”

I answered her: You seem to be asking whether you are obligated to acquiesce to your mother-in-law’s request. In response, I’d like to start by briefly reviewing the halachos of kibud av va’em. You do have an obligation of kibud av va’em towards your husband’s parents, although not on the same level as your obligation towards your own parents or your husband. However, the mitzvah includes only two components – kibud and morahKibud encompasses ensuring that your in-laws have their physical needs met. This involves providing them with food if needed, bringing them a drink if requested, taking care of their medical needs if relevant, and so on. Morah requires you to show them respect by not contradicting them, not sitting in their set places etc.

In the situation you describe, I do not see how either kibud or morah come into play.   One can claim that, since your mother-in-law is insisting so strongly on this, there is an element of morah. However, that is only a result of her insisting so strongly that your refusal is rude.

If you are like most frum women today, between caring for a large household, supplementing the family income, and taking care of all your other responsibilities, you are juggling the equivalent of at least two full-time jobs.  It seems unfair for your mother-in-law to pile even more on your already overburdened shoulders. Women today are already far too stressed and need to spend more, not less, time with their nuclear families. Encroaching on that time for the sake of fairly distant relatives is not a wise move.

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Passing the Taste Test

Question #1: Gentile Goulash

Can a non-Jew determine if the cholent or the goulash is kosher?

Question #2: Expert Witness

Does halacha recognize the concept of an “expert witness?”

Question #3: It Tastes Bad!

Does whether something tastes good or bad affect halacha?

Foreword:

This article will discuss what happens if a small amount of something non-kosher falls into kosher food. Because of the limitations inherent in writing articles, at times I will need to omit significant details. As a result, please do not use this as a source for any halachic ruling. Refer a personal question to a rav.

When non-kosher and kosher foods become mixed together, it is forbidden to eat the mixture. However, when the amount of the non-kosher item is so small that it cannot be tasted, the mixture is usually permitted, since the offending substance is considered nullified, bateil.

Note that I wrote “usually,” because there are exceptions to this rule, most of which will wait patiently for future articles. One instance in which the offending ingredient is not bateil is when someone deliberately attempted to nullify a forbidden product or mixture. In this instance, the resultant mixture is prohibited because of the principle of ein mevatlin issur lechatchila (Beitzah 4b), one may not deliberately nullify a prohibited substance.

Ta’am ke’ikur

Why is the ability to taste a prohibited substance the criterion to determine whether the mixture is permitted? This is because of a halachic principle called ta’am ke’ikur, the taste is like the actual substance.

Nosein ta’am lifgam

Even when the non-kosher ingredient can be tasted, at times the mixture is still permitted. This is when the non-kosher substance does not add positive taste into the food, but adds an unpleasant taste, even if it is only mildly unpleasant. The Gemara (Avodah Zarah 67b) quotes a dispute between tanna’im whether nosein ta’am lifgam, literally, that which provides a bad taste, is prohibited or permitted. According to the opinion that nosein ta’am lifgam is permitted, should a non-kosher substance provide an unpleasant taste when added to food, the food remains kosher. The halacha follows the opinion that nosein ta’am lifgam is permitted.

We can then reach this conclusion regarding a mixture of non-kosher and kosher food:

(1) When the non-kosher food is the minority of the mixture, and

(2) the non-kosher food can no longer be identified, and

(3) the non-kosher food does not improve the taste,

then the mixture may be eaten. And, as mentioned above, this is true only when the bitul, the nullifying, was not performed intentionally.

24 hours

The halachic assumption is that residual taste that is present in a vessel or utensil from a previous cooking usually spoils after 24 hours have elapsed. This means that the flavor imparted from such equipment is no longer beneficial and therefore food cooked in it is permitted. In addition, because of a more complicated halachic principle and reasoning, even when we do not know for certain whether equipment was used in the previous 24 hours, we are permitted to assume that the product cooked in non-kosher equipment is kosher (see Tosafos, Avodah Zarah 35b s.v. Miklal). On this basis, although it is prohibited to use a non-kosher pot, food cooked in it with kosher ingredients usually remains kosher.

How do we know?

When a small amount of issur (prohibited food) got mixed with heter (permitted food), we need to know whether the issur is bateil and the food is therefore permitted, or whether it is not bateil and the food is prohibited. In general, there are two methods to ascertain that the food is bateil.

The taste test

A non-Jew tastes the mixture to ascertain whether he can detect taste of the non-kosher food (or the tiny percentage of milk in meat, or vice versa). He may also tell us that, although he can detect the non-kosher substance, what it adds to the mixture is distasteful. In this instance, the food is permitted, as explained above.

Must the non-Jew swallow the food that he is tasting? There is a dispute among later halachic authorities whether a taste test requires that the taster actually swallow the food, or whether it is sufficient that he chew the food thoroughly. The Pri Megadim (Mishbetzos Zahav, Yoreh Deah 98:2) rules that when tasting to check for an issur, the person must chew the food and swallow some of it, whereas the Yad Yehudah (98:2) is satisfied that chewing well is enough and even that is necessary only if it is a solid food. If it is a liquid, even tasting the food in his mouth and spitting it out afterward suffices.

Most poskim contend that the non-Jew should not know that his answer is deciding whether a product is kosher or not. Why? Some explain that the non-Jew may want to help the Jew and tell him that he cannot taste any prohibited substance, even when he is uncertain (Badei Hashulchan 98:8).

Another possibility is that someone who does not understand that it is a violation of what Hashem wants may bias what he says because of other motivations. Thus, we cannot rely on information provided unless (a) the person is halachically concerned about the prohibition involved, or (b) there is a compelling reason why the person would tell the truth, such as an expert chef who would not want to jeopardize his professional reputation.

Ratio

If we know how much of a non-kosher substance fell in, we can try to determine (by measuring) whether the percentage is large enough to be discerned. That is, if what fell in is less than one sixtieth of the permitted substance, the mixture is permitted.

Some rishonim require that, when possible, we must use both methods. In other words, the prohibited substance must be one part in sixty or less, and even then, if a non-Jew is available, we should have him taste the mixture to determine that the prohibited food cannot be tasted (Rashi, Chullin 98a s.v. Beshishim). Others rule that it is better to have a non-Jew taste the food and tell us that he cannot taste the non-kosher substance. If no non-Jew is available, we may permit the food if we know that the kosher food is at least sixty times the volume of the non-kosher (Rambam).

The Shulchan Aruch concludes, like the Rambam, that we use one part in sixty as a determinant only when there is no non-Jew present to taste the meat. In such a case, we calculate if the heter is sixty times the issur, in which case it is mutar.

There are instances in which we cannot use the taste test and will only be able to use the ratio method. For example, what do we do if a small amount of non-kosher meat fell into a cholent or goulash in which there is more kosher meat than the non-kosher that fell in? What are we going to ask the non-Jew to taste? Of course, he is going to taste meat, because there is plenty of kosher meat in the mixture, and there is no way to know by taste whether the non-kosher meat can be tasted. In such situations, we will be forced to use the ratio method to determine whether the food is kosher (see Yorah Deah 98:2).

Chaticha na’asah neveilah

Here is another instance in which we will not be able to rely on taste to rule that something is permitted. A small amount of meat fell into a pot containing dairy. Afterward, another ingredient, that is neither meat nor dairy, was added to the pot. The problem in this instance is that, when the meat fell into the dairy, if the pot did not contain enough to make the meat bateil, all the milk and meat in that pot became prohibited as basar bechalav. Adding more to the pot will not help, nor will tasting the food afterward to discern that the meat cannot be tasted, since the dairy already became prohibited min haTorah. To permit the food (and the pot) we will need to determine how much was in the pot when the meat fell in originally; tasting it now will not help make that determination.

This concept is called chaticha na’asah neveilah, which means that once something absorbed a prohibited substance, we must treat the entirety as prohibited. This concept has ramifications for many other halachos, but space considerations will require us to leave the topic for a future article.

Why sixty to one?

Why is a prohibited substance usually bateil when there is sixty times its volume of heter in the mixture? The reason is because Chazal calculated that most prohibited foods will not be tasted when they are in the food at this small percentage. However, this calculation is not absolute. There are several prohibitions in which Chazal required a larger percentage, because they wanted us to be more stringent regarding these, more serious issurim. There is also the instance of a food that is avida leta’ama, meaning that it is a spice or other flavoring agent. Since these foods can be tasted even when in very tiny amounts, they remain prohibited even when there ar only very small amounts in the food.

Returning to the taste test

Exactly whose opinion do we need that the non-kosher cannot be tasted? Can we use any non-Jew to perform the taste test, or does it require an expert chef? Some contend that an expert chef is needed because we do not assume that the average person is so discerning (see Rashba). Others require an expert chef for a different reason: since he has his well-earned professional reputation at stake, he can be trusted to tell us the truth and not what he thinks we want to hear.

The Rambam and those who follow his approach do not require that the “taste tester” be an expert. They contend that we may rely on any non-Jew who tastes the food and tells us that he cannot discern the non-kosher ingredient in themixture. Among those who accept any non-Jewish taster, some contend that we can rely on him only when he does not know why we are asking him, whereas others are not concerned about this.

In general, halacha accepts that only someone affected by a situation pays attention to its details. For this reason, someone who witnessed something and did not realize the significance of what he was seeing cannot be relied upon for his opinion as to what happened. Thus, in general, it would seem that we should not rely on a non-Jew telling us whether he discerned the non-kosher product or not, if he is unaware of the reason we are asking.

There are some possible exceptions to this rule. One is when the individual has a professional reputation to protect. Someone in this situation is very concerned not to ruin his well-earned reputation, and will always be careful to render a correct answer to the best of his ability. Therefore, we accept his opinion to be true.

Others explain that we may ask a non-Jew whether he tastes the non-kosher when he knows that we are immediately going to see if he is right. Although it may not be his uppermost concern to provide us with accurate information, knowing that we will check immediately on his reliability will cause him to be more concerned to provide accurate information (Shach, Yorah Deah 98:2; Pri Chadash; based on Shu”t Harivash #433).

This approach is recommended by the Gemara and this is the approach followed by Sefardim as ruled in the Shulchan Aruch (Yorah Deah 98:1), who accepts any non-Jew’s opinion if he does not know that we are relying on him.

However, the custom developed among Ashkenazim not to rely on a non-Jew tasting the food. Why would Ashkenazim ignore the approach recommended by the Gemara? Did we decide to become frummer than the authors of the Gemara?

G-d forbid! There is much discussion among the later authorities why Ashkenazim follow this approach. One reason suggested is that, if we study the various explanations provided by the rishonim, we will realize that they are mutually exclusive. In other words, some hold that we can accept the non-Jew’s opinion only when he knows why we want the information, whereas others assume the exact opposite – that he is trusted only when he has no idea why we want the information. Since it is impossible to accommodate all the opinions, the custom is to be stringent and not use this approach. (This answer is provided by Rabbi Akiva Eiger in his glosses to Yorah Deah 98:1, but the Gra and Rav Shelomoh of Vilna, in their respective glosses, disagree.)

Avida leta’ama

Above, we noted that a non-kosher spice or seasoning is not usually bateil because it can still be tasted in the finished product. Thus, the ratio of sixty parts heter to one part issur will not permit this product. However, can you have a non-Jew try it to see if he can taste the issur? Certainly according to Sefardic practice, this is permitted. But can an Ashkenazi use a non-Jew to taste whether the avida leta’ama ingredient can still be tasted?

The Shach (Yorah Deah 98:29), an Ashkenazi who follows the Rema, rules that, when the question is whether you can taste an avida leta’ama, you may rely on a non-Jew. This ruling is accepted by Rav Shelomoh Eiger (in his notes on Rema, Yorah Deah 98:1); but there are those who disagree.

A Jewish taster

The Rema writes that “nowadays we do not rely on the tasting of a non-Jew” (Yorah Deah 98:1). This implies that if a Jew tastes a mixture and tells you that the “prohibited substance” cannot be discerned, you may rely on him (Shach). Most, but not all, authorities accept that we can rely on a Jewish taster (cf. Levush, who disagrees and concludes that Ashkenazim never rely on tasting).

Obviously, in the cases that we have been discussing, no halachically abiding Jew could taste the food, and a Jew who is not halachically abiding cannot be relied upon. Thus, when does this ruling apply?

There are numerous cases in which it might be relevant to have a Jewish person taste the mixture:

(1) If some terumah of one type of fruit or vegetable falls into a different species of non-terumah that is cooking, we may have a kohen taste it, since he is permitted to eat terumah. If he tells us that he cannot taste the species that is terumah, then a non-kohen may eat it. The same halacha is relevant to a case where the dough separated as challah became mixed into a product. (These cases are assuming that we are in a time and place when kohanim eat terumah and challah.)

(2) An individual made an oath or a vow prohibiting himself from eating a certain food. Subsequently, that food gets mixed into other food. Another Jew, who is not included in the oath or vow, may taste the mixture and ascertain that the prohibited food is not discernible.

(3) An onion was cut with a meat knife, and someone tasted the onion and contends that it has no fleishig taste. May someone now eat this onion with dairy? This application can be applied to any similar case where we want to verify if pareve food has a meat or dairy taste.

(4) A non-kosher substance fell into a kosher food and we do not know whether the kosher substance was sixty times the non-kosher. A non-Jew, who does not know why we are asking his opinion, tastes the food and tells us that the non-kosher substance cannot be discerned. At this point, a fully halachically observant Sefardi who heard the non-Jew’s ruling is permitted to rely on his pesak and taste the food. Upon tasting the food, the Sefardi notifies an Ashkenazi that indeed there is no taste of non-kosher in the food. According to the ruling of the Rema and the Shach, the Ashkenazi may now eat the food, relying on the tasting of a Jew.

All four of these cases are seemingly dependent on the dispute quoted above between the Levush and the Shach whether we rely on the tasting done by a Jew.

Conclusion

A well-known, non-Jewish criticism of Judaism is: “Does G-d care more about what goes into our mouths than He does about what comes out?” The criticism is, of course, both mistaken and conceited. Our development as avdei Hashem involves both what goes in and what comes out, and the height of vanity is to decide which is “more” important in His eyes. Being careful about what we eat and about what we say are vital steps in our growth as human beings.

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The Confused Image of Glass

In common years, Parshas Tzav falls on Shabbos Hagadol, and the piyutim (and perhaps the drosha) of the day teach about kashering for Pesach. Although this year is a leap year and Shabbos Hagadol is a month from now…

Question #1: Tevilas keilim

Why is glass the only material other than metal for which Chazal required immersion?

Question #2: Non-Kosher

May I use a non-kosher drinking glass for a hot cup of tea?

Question #3: Chicken soup and milk

After serving chicken soup in a glass, may I pour hot milk into the same glass?

Question #4: Kashering for Pesach

How do I kasher my chometz-dik glasses for Pesach?

Introduction

Moshe Rabbeinu hid the Egyptian that he killed in the sand; for this reason, striking the earth to bring the makeh of kinnim needed to be performed by Aharon (Rashi, Shemos 8:12). Since the world has huge deposits of sand, mankind attempted to use it for useful items, eventually discovering that, by heating sand to a very high temperature, it can be made into glassware, which is the topic of this article.

There is no mention of glassware in the Torah, although there is one reference to glassware in Tanach, in the book of Iyov (28:17). Iyov declares, regarding wisdom, lo ya’archena zahav uzechuchis, “Gold and glass do not equal it,” meaning that the value of gold or glass comes nowhere near that of wisdom. From this passage we see that, at the time of Tanach, glass was considered an extremely expensive material. As we will see shortly, that glass became less costly with time has halachic ramifications.

Before discussing the halachos of glass, let us note some of its unique chemical and physical properties that affect its halachic status.

Recyclable

Glassware has many uses and can be very beautiful, but at the same time it is fragile and breakable. However, as opposed to pottery, which, when broken, is irreparable and virtually useless, broken glassware can be easily recycled. Glass can be melted down and reused over and over. In this respect, glass shares an important characteristic with metals, which are also recyclable by being melted down. For this reason, Chazal sometimes gave glassware the halachos of metals. For example, germane to the mitzvah of tevilas keilim, the Gemara rules that glass vessels must be toiveled before use, as indicated in the Gemara (Avodah Zarah 75b): Rav Ashi said, Glass utensils, since when broken they can be repaired, are like metal utensils.

Rav Ashi lived at the very end of the period of the Gemara. A much earlier statement of Chazal, in Avos deRabbi Nosson (Chapter 41), provides the following terse statement:

“Three things were said regarding glassware:

(1) It does not absorb; it does not impart.

(2) It shows whatever is inside.

(3) If you place it in a hot place, it becomes hot. If you place it in a cold place, it becomes cold.”

Avos deRabbi Nosson is not intended to be a scientific work, nor is it a handbook for manufacturers. It is similar to Pirkei Avos, although it contains much more aggaddic material, and so it would probably be best classified as an early midrash, similar to Midrash Tanchuma or Pirkei deRabbi Eliezer, or to the much later midrashic collections like Midrash Rabbah or Yalkut Shimoni. So, why is it concerned with categorizing the qualities of glassware?

The answer to this question is that, although Avos deRabbi Nosson is not usually treated as a halachic midrash, in this instance, that is exactly what it is — providing halachic categorization with which to define the unique qualities of glass. By so doing, it provides a background with which to explain the halachos of glassware.

Does not absorb

Laboratory experiments use glass equipment because it does not absorb, nor does it impart or leach into what is heated or stored inside it. Therefore, it should not affect whatever chemical reaction or research for which it is being used. We will soon discuss the kashrus ramifications of this quality of glass, about which the Avos deRabbi Nosson was presumably concerned.

May be clear or opaque

We are accustomed to most glass being clear, but this is really a function of what other chemicals are in the sand from which the glass is made when it is fired. Even glass that is colored is usually transparent, which is one of the common qualities of glass and is highly uncommon in other materials.

This observation about glassware has much halachic ramification, although this distinction does not affect any “kitchen kashrus” issues. It does, however, have ramifications for the laws of tumah and taharah, which we will not disuss in this article because of space considerations.

It is a conductor

The third statement of the Avos deRabbi Nosson is that if you place glass in a hot place, it becomes hot, and if you place it in a cold place, it becomes cold. In other words, glass is a conductor and not a good insulator. The best insulator used today in the kitchen and in carryout shops is Styrofoam. But on the relative scale of things, glass is closer to metal in its ability to conduct heat.

Having used the Avos deRabbi Nosson as a means of explaining the unique properties of glass, we can now discuss the halachic questions that I raised at the beginning of our article.

Tevilas keilim

Our first question was: Why is glass the only material other than metal for which Chazal required immersion?

Allow me to explain. The laws of tumah and taharah germane to tools, equipment and vessels include many different types of materials. Items manufactured from metal, wood, cloth, horn, glass, and plants are all susceptible to tumah, as is food, pottery and boneware. Nonetheless, germane to the mitzvah of immersing utensils prior to food use, the requirement min haTorah  applies only to metal utensils, and not to utensils, pots or pans made of pottery, wood, cloth, bone, horn or any other materials. Therefore, there is no requirement to toivel a wooden spoon, a ceramic dish, cheesecloth used for food (after all, it is called cheesecloth, and not laundry cloth, for a good reason), or flatware chiseled out of horn or bone. However, why is there a requirement to toivel glass bowls and cups?

Based on the Gemara that we quoted above, we can answer this question: Broken glass utensils can be recycled for new manufacture, just as you can recycle broken metal utensils. Since glass shares this quality with metal, Chazal instituted that glass be treated like metalware, germane to the mitzvah of toiveling food-preparatory vessels prior to using them.

Glass and kashrus

At this point, I am going to combine the next three of our opening questions into one discussion:

May I use a non-kosher drinking glass for a hot cup of tea?

After serving chicken soup in a glass, may I pour hot milk into the same glass?

How do I kasher my chometz-dik glasses for Pesach?

There is a tremendous diversity of opinion among the rishonim concerning the kashrus status of glassware. Do we assume, halachically, as does the chemist, that glass never imparts anything that it absorbs? If this is true, it should never require kashering and it may be used interchangeably from treif to kosher, from milchig to fleishig, and from chometz to Pesach without any kashering procedure at all. On the other hand, we have no Talmudic source that expressly permits using any utensil in any of these ways without a kashering procedure in between.

The different opinions that we find among the rishonim on this issue can be categorized loosely as three basic approaches:

1. No need to kasher

Several authorities contend that the nature of glass is that it does not absorb or impart any taste and that, therefore, it does not require any kashering at all (Rabbeinu Tam, quoted by Tosafos, Avodah Zarah 33b s.v. Kunya and Kesubos 107b s.v. Hani,and Rosh, Pesachim 2:8; Rashba, both in Shu”t Harashba 1:233 and in Toras Habayis 5:6; Ran, Pesachim 9a [in the Rif’s pages]; Ravyah,quoted by Mordechai, Pesachim #574). Many of these authorities quote the above mentioned Avos deRabbi Nosson as a proof for this ruling.

2. Does not help to kasher

Halacha treats glassware like pottery. Once pottery was used to cook chometz or non-kosher food, the flavor absorbed into its walls can never be fully removed. Rather than becoming completely extracted when one attempts to kasher pottery, some of the absorbed taste remains and leaches out afterwards with each use, potentially spreading prohibited flavor into all subsequent cooking (Tosafos, Chullin 8a s.v. Shelivna). In other words, once pottery becomes treif, it may be impossible to make kosher again. (There are some circumstances in which it can be kashered, but these unusual situations are beyond the scope of this article.)

Some early authorities contend that, since glassware is made from sand, it should be treated like sand, or, more accurately, like pottery and cannot be kashered (Mordechai, Pesachim #574, and Avodah Zarah #826; Terumas Hadeshen 1:132, 2:151). Most of these authorities quote the source for this approach as Rabbeinu Yechiel of Paris, one of the baalei Tosafos.

3. Glass is like metal

Some rishonim rule that just as Chazal gave glassware the same halachic status as metal regarding the mitzvah of tevilas keilim, it has the same halacha regarding the laws of kashrus (Bedek Habayis of the Re’ah, 5:6; Shibbolei Haleket #207).

However, once we rule that glassware is like metal, in practice, it might become stricter than metal. This is because of a rule that, when a particular method of kashering may break an appliance, Chazal prohibited using that method, out of concern that someone will be afraid to kasher it properly (Pesachim 30b). Thus, although metal can be kashered by boiling the appliance (hag’alah), it may not be allowed to kasher glassware this way, because the owner may be afraid that it will crack (Mor Uketzi’ah end of 451). On the other hand, other authorities permit kashering glassware by hag’alah for Pesach and are not concerned that someone might be afraid to kasher it properly (Shu”t Maharsham 1:53 at end).

A major halachic ramification results from the above. Glassware that is meant to be used in the oven, such as Pyrex, should, therefore, be kasherable for Pesach, since presumably the owner will not be afraid to kasher it properly. Although this is not common custom, there are prominent halachic authorities who permit this (She’arim Hametzuyanim Bahalacha 116:11).

Difference between treif and Pesach

There is a dispute among rishonim whether glass that was used for hot chometz may be used for Pesach. Some authorities are more stringent regarding using chometz-dik glassware for Pesach than using it interchangeably between milchig and fleishig. For example, the Hagahos Semaq, a late baal Tosafos, writes: “Universal custom is not to use for Pesach any used pottery vessels (even those coated with metal or glass). Rabbeinu Yechiel prohibited using even used drinking glasses, since the Gemara compares glass to pottery, and sometimes people place bread into drinking glasses, in which instance they absorb the way pottery does.” The way this statement is quoted, it implies that Rabbeinu Yechiel did not permit any form of glassware kashering for Pesach (Hagahos Semaq 222:5).

Similarly, the Issur Vaheter (58:50), an early Ashkenazic posek, quotes the Semaq as ruling that it is prohibited to kasher glass for Pesach and it should be treated lechumra as questionable whether it is considered metal or pottery.

How do we rule?

Among earlier halachic authorities, it appears that there was a big difference between Sefardic and Ashkenazic practice regarding the use of glassware. The Beis Yosef cites most of the halachic sources we quoted above, and concludes, both in Beis Yosef and in Shulchan Aruch, that glassware does not absorb and therefore may be used for Pesach without any kashering procedure at all (Shulchan Aruch, Orach Chayim 451:26). Following his approach, it would appear that someone could purchase or rent used glass equipment from a treif source, without any need to kasher it.

On the other hand, early Ashkenazic custom appears to have been closer to the approach of Rabbeinu Yechiel cited above. For example, the Rema rules that chometz-dik glassware should not be used for Pesach and that it is not kasherable for Pesach use, even when it was used only for serving cold beverages and not used ever to store them.

Although most Ashkenazic authorities subsequent to the Rema follow his approach, some rule that Ashkenazim could follow the Sefardic practice and use glassware for Pesach without kashering it first (Mor Uketzi’ah,end of 451).

Other authorities raise a different question regarding the Rema’s ruling that glassware may not be used for Pesach. The Rema prohibits using glassware for cold drinks on Pesach, even when the glass is used only for cold beverages the entire year. The reason the Rema is stringent is because of concern that chometz may have fallen into the glass and became kavush, which means that chometz flavor absorbed into the glass.

The difficulty with this ruling is that the Rema himself rules that a vessel, even made of pottery, that stored chometz for a lengthy period of time may be used on Pesach, even when this long-term storage would create kavush (Orach Chayim 451:21; see Mishnah Berurah 451:122). How could the Rema treat glassware more stringently than pottery? The only reason to be stringent regarding glassware is according to the minority opinion that treats glassware as pottery!

This question is raised by the commentary Beis Meir (Orach Chayim 451:26), who answers that the Ashkenazic minhag to be stringent not to kasher glass was only regarding drinking glasses, since buying new ones for Pesach is not a major expense. However, the Rema ruled leniently regarding large storage vessels that are expensive, even when they are made from pottery, and certainly when they were manufactured from glass. In other words, even the Rema holds that glassware is inherently kasherable; there is only a custom not to kasher drinking glasses for Pesach since this does not incur a great expense.

There are several ramifications of the Beis Meir’s ruling:

An individual who cannot afford to purchase glassware for Pesach may use his regular, chometz-dik glassware. In this situation, he should kasher his drinking glasses. This approach is followed by the Chayei Odom and the Mishnah Berurah (451:156) who rule that, in a place where glassware is relatively unavailable, glass items should be cleaned well and then kashered for Pesach, by a method called miluy ve’iruy. In this kashering method, glasses are submerged completely in a basin or tub full of cold water for at least 24 hours, the water is changed and glasses are submerged again for at least another 24 hours, and then a third time for at least another 24 hours.

The Mishnah Berurah rules that, if someone does not ordinarily use his glassware for hot chometz or to store chometz, and they used their glasses for Pesach without any kashering at all, the food or beverage placed in them remains kosher for Pesach. More so, in a case of major loss, the Mishnah Berurah permits Pesach-dik food, even when it was placed hot into glassware that was previously used for hot chometz. He permits this only if the glassware was not used for chometz within the previous 24 hours. There are other authorities who are even more lenient (Taz; Pri Chodosh; cf. Shaar Hatziyun 451:196).

According to the Beis Meir’s conclusion, it is permitted to drink a kosher beverage, even a hot tea or coffee, in a “non-kosher” drinking glass. This opinion is mentioned by many halachic authorities (Keneses Hagedolah, Yoreh Deah 121:25 in Hagahos Tur 25; Darkei Teshuvah 121:2; Aruch Hashulchan, Yoreh Deah 121:2). Thus, if you are in a non-kosher house or hotel, the hot tea or coffee you are served in a glass is still kosher. And, if we refer to one of our opening questions: “After serving chicken soup in a glass, may I pour hot milk into the same glass?” — the answer, according to these authorities, is that one may. I suggest that, prior to putting this into practice, our readers should ask this question from their own rav or posek.

Conclusion

The Chiddushei Harim notes that pottery vessels become tamei only from their inside and not when something touches their outside. He explains that this is because a pottery vessel, itself, is considered without inherent value – its value is determined by what it contains, whereas vessels made from other materials have inherent value. On this basis, the Sfas Emes, the grandson and successor of the Chiddushei Harim, notes that man’s value is also determined by what he contains on the inside, not on his outer projected image.

Image above by iprole on Freeimages.com

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Second Zachor Readings

Question #1: Birchos haTorah min haTorah

Is birchos haTorah min haTorah?

Question #2: Parshas Zachor

Should a second parshas Zachor reading have a minyan?

Question #3: America, America

Is there an American angle to this halachic discussion?

Foreword

The halachic authorities dispute whether women are obligated to hear parshas Zachor, the Sefer Hachinuch (Mitzvah #603) ruling that they are exempt, whereas Rav Yaakov Ettlinger (author of Aruch Laneir and posek hador of western and central Europe during his lifetime), obligates them (Shu”t Binyan Tzion 2:8). A third opinion is that, although women are definitely required to observe the mitzvah of remembering what Amalek did to us, they are not required to hear parshas Zachor because it is a time-bound mitzvah miderabbanan (Shu”t Toras Chayim, Orach Chayim #37; Kaf Hachayim 685:30).

There is a second dispute, whether an individual is required min haTorah to hear the reading of parshas Zachor with a minyan, annually, which some rishonim require (Rosh, Berachos 7:20; Terumas Hadeshen 1:108) and others exempt (Sefer Hachinuch). If we combine the strictest interpretation of both rulings, we would conclude that women are obligated min haTorah to hear parshas Zachor annually with a minyan, although I am unaware of any early halachic authorities who rule this way.

In contemporary practice, women strive to hear parshas Zachor. To enable those taking care of children during the morning reading, many shullen schedule an additional reading some time later that day, to facilitate the hearing of parshas Zachor.

Some contemporary authorities have questioned this practice because of the following observation: There are poskim who forbid reading from a sefer Torah in public without reciting a berocha before and after the reading (Toras Raphael, Hilchos Keri’as HaTorah #2). This is based on the ruling of earlier prominent authorities who contend that such readings require the recital of a berocha min haTorah (Be’er Sheva, Sotah 41a; Shu”t Mishkenos Yaakov, Orach Chayim #63). Several early authorities attribute this position to the Talmud Yerushalmi (Shu”t Meishiv Davar 1:16; cf., however, Toras Raphael who disagrees) or other very early sources.

On the other hand, when there is no obligation to read from the Torah, many authorities forbid reciting a berocha when reading from a sefer Torah, considering it a berocha levatalah, one recited in vain (Elyah Rabbah 566:3; Pri Megadim, Mishbetzos Zahav Orach Chayim 566:7; Chayei Adam 31:11; Meishiv Davar 1:16; Shu”t Har Tzvi, Orach Chayim #52, #69, #70). This may potentially create a conundrum: It would be forbidden to recite berochos for an extra reading of parshas Zachor because of concerns about berocha levatalah. Yet, some authorities prohibit reading from the Torah in public without a berocha. Thus, we have a predicament whose obvious solution is to avoid extra public reading from a sefer Torah. On the other hand, we want to have an extra reading to facilitate fulfilling the mitzvah for those who cannot be in shul for the regular reading.

Other readings

A similar, but not identical, shaylah occurs on several other occasions, depending on various local customs. Many have the minhag to read sefer Devarim, or sections thereof, from a sefer Torah on the night of Hoshana Rabba. Similarly, many Chassidic kehillos read, on the first twelve days of Nisan, the passage in parshas Naso describing the dedication of the Mishkan, called parshas hanesi’im. There was also a custom that, upon completing the writing of a new sefer Torah, the sofer read from the brand new sefer Torah in front of the assembled (Toras Raphael). Other customs of reading from a sefer Torah on various occasions are recorded in different halachic sources (e.g., Shu”t Tashbeitz 2:39; Levush; Shu”t Minchas Yitzchak 8:84). Explaining the sources for this discussion and suggesting resolutions is the topic of this article.

Introduction

After the Rambam wrote his Sefer Hamitzvos, in which he listed his opinion of the count of the 613 mitzvos, the Ramban wrote an extensive commentary disputing dozens of points made by the Rambam. The Ramban also listed 34 mitzvos, 17 mitzvos aseih and 17 mitzvos lo saaseh, which he felt should be included in the count of the mitzvos according to the Rambam’s rules, but were omitted. In the Ramban’s listing of the “missing” mitzvos aseih, he includes the mitzvah (#15) to recite a berocha prior to reading the Torah.

Although it is unclear whether the Ramban here is counting a mitzvah to recite birkas haTorah prior to studying Torah, or a mitzvah to recite it prior to reading from a sefer Torah, several authorities assume that he meant the latter. In other words, although reading the Torah in public is not required min haTorah, when doing so, the requirement to recite a berocha is. All halachic authorities agree that the berocha after an aliyah is only a mitzvah miderabbanan.

Berocha before leining

The major discussion on this topic stems from the writings of three prominent acharonim, the Be’er Sheva (commentary to Sotah 41a), the Mishkenos Yaakov (Shu”t Mishkenos Yaakov, Orach Chayim #63) and the Toras Raphael (Hilchos Birchos haTorah #2).

These acharonim base themselves on a careful analysis of a passage of Gemara:

Rav Yehudah said, “What is the source from which we know that there is a requirement min haTorah to recite birkas hamazon after eating: ‘When you have eaten and been satisfied, you shall bless Hashem, your G-d, for the wonderful land that He gave you’ (Devarim 8:10). What is the source from which we know that there is a requirement min haTorah to recite birkas haTorah before Torah: ki sheim Hashem ekra, havu godel lei’lokeinu (Berachos 21a, based on Devarim 32:3), in which Moshe told the Jewish people, ‘I am about to sing praise to Hashem. Prior to my doing so, I will recite a berocha (ki sheim Hashem ekra) to which you should answer amen’” (havu godel lei’lokeinu) [Rashi, Berachos 21a s.v. Ki].

(1) What did Rav Yehudah mean when he required a “berocha before Torah?” Was he referring to:

            (a) What we usually call talmud Torah or limud Torah,or

            (b) Before reading from a sefer Torah, what we usually call keri’as haTorah?

(2) If he meant what we usually call limud Torah, what type of limud Torah is included?

The Gemara (Berachos 11b) cites a four-way dispute among amora’im what type of limud Torah requires birkas haTorah:

            (a) Only the written Torah.

            (b) The written Torah and the halachic midrashim on the written Torah.

            (c) In addition to the above, also before studying Mishnah.

            (d) In addition to everything mentioned above, also before studying Gemara.

The Gemara concludes that we recite birkas haTorah prior to any type of Torah learning. However, this does not teach us whether this is required min haTorah or only miderabbanan.

Let us return to the passage of Gemara quoting Rav Yehudah’s ruling that birkas haTorah is min haTorah and is derived from the pasuk in parshas Ha’azinu.

Rabbi Yochanan then adds to, and somewhat disagrees with, Rav Yehudah’s statement by claiming that, with the use of two applications of the principle of kal vechomer, we can derive that reciting a berocha before eating is min haTorah, as well as a berocha recited after learning. The Gemara ultimately refutes the applications of kal vechomer and, therefore, Rabbi Yochanan’s two rulings. Thus, recital of a berocha before eating and after learning are not required min haTorah.

The question that concerns the Be’er Sheva and the Mishkenos Ya’akov is:

To which berocha after Torah is Rabbi Yochanan referring? The only time we ever recite a berocha after Torah is the berocha recited after keri’as haTorah. This implies that the “berocha before Torah,” which both Rav Yehudah and Rabbi Yochanan agree is min haTorah, means the berocha recited before reading the Torah in public. The Be’er Sheva and the Mishkenos Ya’akov, therefore, conclude that the requirement min haTorah of birkas haTorah applies when reading the Torah in public. This includes:

(A) What we call keri’as haTorah on Shabbos, Mondays, Thursdays and holidays.

(B) The mitzvah of hakheil, when the Jewish king reads selections of sefer Devarim to the entire Jewish people on chol hamo’ed Sukkos in the year following shemittah (Mishnah Sotah 40b).

(C) When the Yisraelim who were on ma’amados, “Temple Duty,” read the Torah daily, during their rotation at the Beis Hamikdash (Mishnah Ta’anis 26a).

These acharonim conclude that the mitzvah of reciting birkas haTorah before we begin studying Torah every day is only miderabbanan.

Because the Be’er Sheva and the Mishkenos Yaakov conclude that both Rav Yehudah and Rabbi Yochanan agree that there is a requirement min haTorah to recite a berocha prior to any public reading of the Torah, this applies even if someone already recited birkas haTorah earlier in the day. The earlier recitation fulfilled only a mitzvah miderabbana, while the subsequent reading of the Torah in public requires recital of a berocha min haTorah.

However, as mentioned above, many authorities prohibit reciting birkas haTorah on a reading of the Torah that was not instituted either by the Torah or by Chazal. An interesting historical example is when the Netziv was asked, in the 1880’s, by a rav in Cincinnati the following shaylah: The community was dedicating a new sefer Torah, and the convenient day to schedule the dedication was Sunday, when people were off from work. In honor of the auspicious occasion, one of the organizers included a reading of the Torah, complete with berachos. The rav in Cincinnati strongly opposed this, contending that the berachos would constitute berachos levatalah, since Chazal never established reading the Torah on a Sunday that is not a Jewish holiday. The Netziv agreed with the rav’s ruling, commenting that it is permitted to read from the Torah, providing that no berachos were recited. However, according to the Be’er Sheva and the Mishkenos Yaakov, it is prohibited min haTorah to read from the Torah in public without reciting birkas haTorah.

Family feud

On the other hand, in response to a similar shaylah, Rav Raphael Shapiro, the Netziv’s son-in-law, author of Toras Raphael, ruled that it is prohibited to read from the Torah altogether. This is because some authorities prohibit reciting a berocha on this reading, and others, the Be’er Sheva and the Mishkenos Yaakov, rule that it is prohibited min haTorah to read the Torah without first reciting a berocha. The Toras Raphael concludes that the only solution is not to read from the Torah in public when it is not required.

Birchos haTorah min haTorah

At this point, we can address our opening question: Is birchos haTorah min haTorah?

The answer is somewhat complicated. According to the Ramban, there is definitely a requirement min haTorah, at times, to recite birchos haTorah. However, it is uncertain whether this means before studying Torah every day, or before reading the Torah in public. Among the rishonim,we find a dispute whether birchos haTorah before studying Torah every day is required min haTorah, a dispute that the Toras Raphael analyzes at great length. And we have two very prominent acharonim, the Be’er Sheva and the Mishkenos Yaakov, who contend that the requirement to recite birchos haTorah is min haTorah only before reading the Torah in public, but not when studying the Torah, in which case the requirement is only miderabbanan.

Later authorities

The question concerning whether we may read from the Torah in public to fulfill a custom without reciting birchos haTorah is discussed in some more recent teshuvos and articles. For example, Shu”t Minchas Yitzchak (8:84) discusses the custom, particularly but not exclusively, among Chassidim, of reading from a sefer Torah on the first twelve days of Nisan the portion of parshas Naso that describes the offerings that the nesi’im brought when the Mishkan was dedicated. Those who observe this custom do not recite a berocha before reading the Torah, nor should they, since most authorities rule that such a berocha would be levatalah, since no takkanas chachamim is observed. However, according to the Toras Raphael, it would seem that this should not be read with a minyan present, in order not to violate (according to the Be’er Sheva and the Mishkenos Yaakov) the mitzvas aseih of reading from a sefer Torah without a berocha.

Disputing the analysis of the Toras Raphael, the Minchas Yitzchak explains that, although these early poskim ruled that the requirement to recite birkas haTorah before keri’as haTorah is min haTorah, they never stated that it is required to recite a berocha prior to a reading that is optional. The Minchas Yitzchak concludes that since many great talmidei chachamim read from the Torah parshas nesi’im in the month of Nisan without reciting a berocha, this is the accepted halacha, not the ruling of the Toras Raphael.

Another, similar reason why these practices do not conflict with the ruling of the early acharonim is that, in these instances, each individual would like to read the Torah by himself, and the public reading is simply because of efficiency. Therefore, this is not considered a public reading of the Torah and there is no requirement to recite birchos haTorah (Shu”t Teshuvos Vehanhagos 1:380). Rav Moishe Shternbuch, who suggested this last approach, was referring to the custom of reading the book of Devarim on the night of Hoshanah Rabbah, which is also performed without a berocha.

Parshas Zachor

At this point, we can address the second of our opening questions: Should a second parshas Zachor reading have a minyan?

Now we can understand our conundrum: If a second parshas Zachor reading is scheduled and there is a minyan in attendance, the Toras Raphael would certainly require the recital of a berocha. According to the Be’er Sheva and the Mishkenos Ya’akov, it would seem that it is prohibited to read the additional reading of parshas Zachor without first reciting a berocha, because this violates the mitzvas aseih of the Torah. On the other hand, if no one is required to still hear the reading of parshas Zachor, many authorities would rule that reciting a berocha is a berocha levatalah. According to the Netziv, there would be nothing wrong with reading from the Torah when Chazal did not require it, as long as no berocha is recited. Thus, in his opinion, the second reading may take place as long as no berocha is recited. However, according to the Toras Raphael, we should, perhaps, not read the Torah in public at all, to avoid getting involved in the dispute. A simple solution might be not to have a minyan when the second reading takes place.

America, America

Is there an American angle to this halachic discussion?

Surprising as this might be, there are several angles to this discussion that involve American Jewish individuals and communities. I mentioned above that the responsum of the Netziv was addressed to a rav in Cincinnati, although I have no idea as to the identity of the rav. By doing some research, I was able to determine that the responsum of his son-in-law, the Toras Raphael, was addressed to Rav Yehudah Eliezer Anixter, a talmid of the Volozhin yeshivah who immigrated to the United States in 1871, eventually becoming a prominent rav in Rochester and Chicago, and the author of a sefer titled Chiddushei Avi. The Toras Raphael read one of the responsa in Chiddushei Avi and wrote the author his own responsum, in partial disagreement with Rav Anixter’s conclusion. And the above quoted Minchas Yitzchak was penned in reference to Chassidim from America visiting Eretz Yisroel who noted that the method of reading the parshas ha’nesi’im was done differently in Eretz Yisroel from the way it is done in chutz la’aretz, and asked the Minchas Yitzchak which approach is preferred.

Conclusion

In the introduction to Sefer HaChinuch, the author writes that the main mitzvah upon which all the other mitzvos rest is that of Talmud Torah. Through Torah learning, a person will know how to fulfill all of the other mitzvos. That is why Chazal instituted a public reading of a portion of the Torah every Shabbos, twice, and on Mondays and Thursdays. Knowing that the proper observance of all the mitzvos is contingent on Torah learning, our attention to keri’as haTorah will be increased, as well as our sensitivity to the recital of its berachos and our kavanah when reciting and listening to those berachos. This should lead to greater respect and attentiveness to the observance of all the mitzvos.

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Wanted Dead or Alive

Question #1: Getting Rid of those Bugs!

“May I trap or kill mosquitoes, bees, or wasps on Shabbos?”

Question #2: Hanging from the Lowest Tree

“I forgot to hang the flypaper before Shabbos. May I do it on Shabbos?”

Question #3: A Charming Shabbos

“May a snake charmer work on Shabbos?”

Answer: Catching or dispatching

We have all been in the following uncomfortable situation: Sometime during Shabbos, a mosquito appears in our vicinity seeking to earn its living. Although we realize that this creature requires its sustenance, we are not eager that we, our children or our guests should become mosquito fodder, even just as a minor donor. Are we permitted to trap or kill the mosquito?

Trapping living things, tzad, was an action necessary for acquiring some of the materials used to build the Mishkan, and is one of the 39 melachos, categories of prohibited activity on Shabbos (Mishnah Shabbos 73a and Rashi ad loc.). Killing living things also violates the melachos of Shabbos, a topic that we discussed last week. Here, we discuss many pertinent principles of Shabbos and some details of the melachah of tzad.

Shabbos nomenclature

When discussing what one may or may not do on Shabbos, the Mishnah and Gemara use three terms: (1) chayov, punishable, when a particular act constitutes melachah, meaning that it desecrates Shabbos by violating a Torah law; (2) patur, exempt, meaning it does not violate a Torah law, and (3) mutar, permitted, when an act may be performed on Shabbos. We will discuss the middle term, patur, which states that a particular forbidden act does not violate Torah law. This term usually indicates that the act is prohibited due to rabbinic sanction, but  sometimes the Sages permitted such acts. But first we will explain what makes performing a forbidden activity patur?

Meleches machsheves

The Gemara (Chagigah 10b; Bava Kama 26b; Kerisus 19b) teaches that the Torah prohibited only something that can be categorized as meleches machsheves, which can perhaps be translated as premeditated melachah. An obvious example of meleches machsheves would be trapping an animal to obtain its hide or meat. Similarly, someone who digs a hole to plant the base of a tree violates the meleches machsheves of choreish, plowing, and one who picks a fruit performs a meleches machsheves of kotzeir, harvesting.

Meleches machsheves is often explained by what it is not. Following that approach, I will provide three categories of labor that are exempt from being defined as desecrating Shabbos min haTorah, because they do not qualify as meleches machsheves, at least according to some opinions.

Mekalkeil

In general, an act constitutes meleches machsheves only when its direct result is beneficial. This means that an action that is inherently destructive does not violate Shabbos min haTorah, even when one needs the result. For example, digging a hole in the ground when one needs the earth but not the hole is defined as a destructive activity and prohibited only miderabbanan. The dug hole itself is a negative development, rendering the burrowing to be mekalkeil, not prohibited min haTorah, but only because of rabbinic injunction. However, digging a hole to plant or to create a posthole results in a positive benefit and is indeed prohibited min haTorah, since one wants the hole in the ground.

Bemino nitzad

Here is a second example of meleches machsheves that is particular to the melachah that we are discussing, tzad. The tanna’im (Shabbos 107b) dispute whether it is prohibited min haTorah to ensnare a creature that mankind does not typically use, such as a scorpion or a flea, which is called ein bemino nitzad, literally, a species that is not trapped. The halachic conclusion follows the lenient opinion, ruling that tzad applies only to a species that is bemino nitzad, commonly trapped, so that mankind can benefit from it. For example, a species that is eaten, from whose body a medicine is extracted, or whose hide is used as leather qualifies as bemino nitzad. The halachic authorities discuss whether trapping an animal for scientific research or so that one can have it as a pet makes the animal bemino nitzad (Rambam, Hilchos Shabbos 10:21; Chazon Ish, Orach Chayim 50:4 at end).

However, a species that is caught only because it is an annoyance has the status of ein bemino nitzad.

Why is this true? The purpose of trapping is to harness a living creature so that mankind can use it. Thus, tzad is a type of acquisition (see Shu”t Avnei Neizer, Orach Chayim 189:7; Biur Halachah, 316:2 s.v. Oh Choleh). However, trapping a creature that mankind does not generally use is not acquiring these creatures, but distancing them from potential victims. Therefore, most opinions conclude that trapping a species that is ein bemino nitzad does not violate the melachah of tzad, and is prohibited only because of rabbinic injunction. Thus, since flies are ein bemino nitzad, catching them would not violate a Torah prohibition. Hanging flypaper on Shabbos would still involve a rabbinic prohibition and it is similarly prohibited to set up a mousetrap on Shabbos (Magen Avraham 316:9; see Piskei Tosafos, Shabbos 17b #62).

By the way, many authorities consider mice to be bemino nitzad, since there are places in the world where their hide is used (Chayei Odom 30:7). There is also a dispute whether a non-kosher species harvested only as food is considered bemino nitzad (Ritva, Shabbos 106b; Nimla Tal, Meleches Tzad #37).

Melachah she’einah tzerichah legufah

Many authorities rule that another category of activity — Melachah she’einah tzerichah legufah, literally, an act not needed for its purpose — is not prohibited min haTorah because it is not considered meleches machsheves. In fact, there is a dispute among tanna’im whether a Melachah she’einah tzerichah legufah is prohibited min haTorah or only miderabbanan. Whereas Rabbi Yehudah contends that Melachah she’einah tzerichah legufah is prohibited min haTorah, according to Rabbi Shimon, these acts are prohibited only by virtue of rabbinic injunction.

What is a Melachah she’einah tzerichah legufah? Among the rishonim, we find differing opinions as to exactly how to define this term, and there are many instances where a dispute in halachah results. Since this complicated question is a bit tangential to our topic, I am going to present only one approach. According to Tosafos (Shabbos 94a s.v. Rabbi Shimon) and the Rivash (Shu”t Harivash #394), Rabbi Shimon contends that the 39 melachos are prohibited min haTorah only when performed for a goal or purpose similar to the reason why this melachah was done when constructing the Mishkan. However, performing a melachah to accomplish a purpose other than that for which this melachah was performed in the Mishkan qualifies as a Melachah she’einah tzerichah legufah. This means that it is prohibited only miderabbanan, according to Rabbi Shimon and those who rule like him.

Here is an example: Removing an item that has a bad odor from a reshus hayachid, an enclosed area, into a reshus harabim, an open area meant for public use, is a classic case of Melachah she’einah tzerichah legufah. Although moving something from a reshus hayachid into a reshus harabim constitutes the melachah of carrying, moving the foul-smelling item from a house to a reshus harabim does not constitute a melachah min haTorah, according to Rabbi Shimon, because the purpose of the carrying when building the Mishkan was to relocate the item to a new place. However, when removing a foul-smelling item, there is no significance attached to the place to which the item is moved; one’s goal is only to distance it from its current location. The public area does not constitute the goal of one’s act; rather, it is merely a convenient place to deposit unwanted material. For this reason, Rabbi Shimon contends that this act was not prohibited by the Torah, but only by the Sages. On the other hand, Rabbi Yehudah considers Melachah she’einah tzerichah legufah as conforming to the definition of meleches machsheves and prohibited min haTorah.

Although most rishonim conclude that the halachah follows Rabbi Shimon that Melachah she’einah tzerichah legufah is prohibited only because of rabbinic injunction, the Rambam and others rule, according to Rabbi Yehudah, that Melachah she’einah tzerichah legufah is prohibited min haTorah.

When exempt is permitted

There is a passage of Gemara that reflects both on our opening question and on a different aspect of the melachah of tzad. “Shemuel said: Whenever the Mishnah states that something is patur when performed on Shabbos, the activity is prohibited [because of a rabbinic injunction], with the exception of the following three instances, when patur means that the activity is permitted. The first case discusses catching a deer, the second is catching a snake and the third is lancing a boil” (Shabbos 3a; 107a, as explained by Tosafos, Shabbos 3a s.v. Bar). Shemuel proves from Mishnayos that, in these three instances, the acts are permitted (Shabbos 107a). The first two of these cases educate us to understand what constitutes the melachah of trapping. (The case of lancing a boil involves a different topic that we will leave for a different article.)

What are the first two cases presented by Shemuel? The first situation is when a deer entered a building, and someone sat in the doorway of the building, thereby preventing the deer’s escape. When that person sat down, he trapped the deer and therefore performed the melachah of tzad. This is true, even if he was not involved in coaxing the deer into the building. The Mishnah (Shabbos 106b) then states that if a second person sits alongside the first in a way that the deer’s escape is still blocked, even when the first person gets up, the second person has not desecrated Shabbos. This is because the second person did not trap the deer but merely guaranteed that a captured animal remains in captivity. Although the Mishnah says that the second person is patur, Shemuel explains that one may lechatchilah sit down alongside the first person, even if one’s intention is to keep the deer trapped when the first person gets up. This explains a different aspect of tzad — the melachah is making the animal available for human use, but once it is already trapped, there is no further violation in keeping it under human control.

The second case is based on two different mishnayos. One Mishnah (Shabbos 107a) permits catching a scorpion, so that it doesn’t bite, and another states that catching a snake to prevent it from biting does not violate Shabbos min haTorah, whereas catching it for medicinal uses does (Eduyos 2:5). Tosafos proves that both Mishnayos that permit tzad to protect someone are discussing creatures whose bite is painful, but not life-threatening, pikuach nefesh (Tosafos, Shabbos 3a s.v. Bar). Were the Mishnah discussing a creature whose bite is life-threatening, it would be obvious that one may kill it, because of the general rule that actions necessary to protect life supersede Shabbos and almost all other mitzvos.

Shemuel ruled that although catching non-dangerous creatures is ordinarily prohibited on Shabbos, since this involves only a rabbinic injunction the Sages permitted it under extenuating circumstances.

Why is the act of trapping non-dangerous creatures considered only a rabbinic injunction? We have already presented two possible reasons. The first is because of the principle of Melachah she’einah tzerichah legufah, since one has no interest in capturing a snake or a scorpion (Tosafos op. cit.). The second reason is that one is not catching these species to make them available for human use, which is an essential component of the melachah of tzad (Avnei Neizer, Orach Chayim 189:7; Biur Halachah, 316:2 s.v. Oh Choleh).

Mosquitoes versus snakes

Although we have discovered that one may catch snakes and scorpions that are not life-threatening, this does not tell us whether one may trap mosquitoes, bees or wasps. Although the sting or bite of these species is indeed painful, it is not usually as painful as a snake or scorpion bite. Thus, it might be that Chazal did not permit catching mosquitoes, bees or wasps.

We can presumably derive the answer from the following passage of Gemara:

“Someone who trapped a flea on Shabbos, Rabbi Eliezer rules him liable for desecrating Shabbos min haTorah, whereas Rabbi Yehoshua rules that his desecration of Shabbos was only of a rabbinic ordinance” (Shabbos 107b). The Gemara explains that this dispute is dependent on an issue that we discussed earlier. Does one desecrate Shabbos min haTorah if he traps a species that is not usually trapped? Rabbi Eliezer rules that he does, whereas Rabbi Yehoshua rules that he does not. Thus, it appears from this Gemara that although Shemuel proved that it is permitted to trap a scorpion, even of the non-deadly variety, one cannot trap a flea, which is considered only as causing discomfort.

Three types of varmints

We can, therefore, divide the different types of unpleasant biters and stingers into three categories:

1. Those that are potentially life-threatening to people. In this instance, if there is even the slightest possibility of danger, one may kill or catch them on Shabbos.

2. Those whose bite will be very painful, but there is no life-threatening danger. These may be trapped on Shabbos, provided that one’s intent is only to save people from harm (Rambam, Hilchos Shabbos 10:25). However, it is forbidden to trap if one intends to use the insect, reptile or arachnid. (Modern biology categorizes spiders and scorpions as arachnids, because they have eight legs, are carnivorous and are wingless. If we want to categorize insects and arachnids together, we should use the word arthropods, but that still excludes snakes and other reptiles. So, for most of this article, I have simply used the word creatures. My apologies to the scientists who are reading this.)

3. Those whose bite will be unpleasant, but not highly painful. In this instance, there is a dispute among the rishonim. Tosafos and the Rosh quote from an earlier baal Tosafos named Rav Poras that, if one sees that an insect may bite him, he is permitted to remove the insect. When the insect is not so close to him, he may brush the insect off, but he may not trap it.

Not all authorities accepted Rav Poras’ approach. The Mordechai (#402) quotes Rav Yehudah Gaon that he noticed that the “elder rabbis” did not trap fleas, even when they were on their skin. The Beis Yosef, however, contends that even Rav Yehudah Gaon accepts the ruling of Rav Poras, but that he himself practiced this as a personal chumrah, not as the required halachah that he would rule for others. There are other rishonim, however, who certainly disagree with Rav Poras and prohibit trapping mosquitoes, even when they are on your skin, since they are only a discomfort (Meiri, Shabbos 107b).

Consensus

The consensus of halachic authorities follows Rav Poras, although there is a dispute among them whether it is permitted to catch the insect only when it is actually biting (Shulchan Aruch, Orach Chayim 316:9; Bach) or whether one may remove the insects even when they are in close proximity (Taz 316:8; Magen Avraham 316:18; Elyah Rabbah). The Mishnah Berurah (316:37) concludes that when one can brush off the insect, he should not rely on the heter of trapping it, but he implies that one may trap the insect if brushing it off will not suffice.

Answers

At this point, let us take a fresh look at our original questions:

“May I trap mosquitoes, bees, or wasps on Shabbos?”

The answer is that if the insect is about to attack someone, one may trap it. One may also trap it if its sting or bite is very painful, and certainly if it is potentially dangerous.

May one hang flypaper on Shabbos? The answer is that one may not.

“May a snake charmer work on Shabbos?” If one is not intending to use the snake, it is permitted. This is all the more so if the snake is dangerous.

In conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos, to ensure that Shabbos is a day of rest. He points out that the Torah does not prohibit doing avodah, which connotes hard work, but melachah, which implies purpose and accomplishment. We certainly see this idea borne out by the ideas of meleches machsheves, which denote the purpose of the action, and have no correlation at all to the amount of energy expended. The goal of Shabbos is to allow Hashem’s rule to be the focus of creation by our refraining from our own creative acts (Rav Samson Raphael Hirsch Commentary to Shemos 20:11).

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May I Take Lives?

Introduction

One of the 39 melachos on Shabbos is netilas neshamah, literally, taking a life. Although we may not want to consider this to be a constructive activity, we recognize that the animal world was placed under our control to use it responsibly and respectfully. This article will discuss some of the details of the halachos of Shabbos that are included in this melacha.

When listing the melachos, the Mishnah, refers to it as hashocheit, meaning he who slaughters. (Later in the article, I will discuss why the Mishnah refers to it in this manner, rather than the more technically accurate hanoteil neshama.) To quote the Mishnah, “One who traps a deer, one who slaughters it, one who skins it, one who salts the hide, one who tans the hide, one who scrapes off the hair, and one who cuts it to size” (Shabbos 73a). Performing any of these activities on Shabbos violates one of the 39 main categories of desecrating Shabbos, what we call an av melacha. As we will see shortly, there are also tolados melacha, subcategories of these 39, which also involve a Torah violation of Shabbos.

An obvious question is that the Mishnah lists “salting the hide” and “tanning the hide” as two different melachos, which is strange, since salting is one of the stages in tanning, and, therefore, does not comprise a separate av melacha. The Gemara notes that this is indeed true, and that “salting” should therefore be deleted from the Mishnah. Since this would result in the Mishnah listing only 38 melachos and not 39, the Gemara explains that a different melacha, called mesarteit, should be included. Mesarteit means “marking,” which, according to Rashi, refers to scoring or marking leather in order to know where to cut it (Shabbos 75b). According to the Rambam (Hilchos Shabbos 11:17), mesarteit is scoring paper or parchment in order to be able to write on it neatly. The Rambam explains that a toladah of this melacha would be to mark lumber prior to sawing it. Marking a precious stone in order to decide how to cut it is another application of mesarteit (Minchas Chinuch). An interesting contemporary example might be when a surgeon marks a patient’s skin where he intends to make his incision.

Purpose of shocheit

Returning to shocheit, this melacha was necessary to prepare materials for the construction of the Mishkan, such as the hides of the rams and the techashim, the unusual species that appeared on earth so that its hide could be used in the construction of the Mishkan and then became extinct (Shabbos 28b).

Chilazon catching

There is halachic discussion regarding whether the melacha of shocheit was necessary to create the dyes prepared from the chilazon, the fish from which the techeiles was made. Allow me to explain. The Gemara (Shabbos 75a) quotes a beraysa, a teaching dating to the era of the Mishnah, that there is a machlokes tanna’im regarding someone who catches a chilazon and squeezes out its liquid used for dyeing. Does he violate only the melacha of trapping or is he also liable for extracting the dye, which would violate the melacha of dosh, threshing. The Gemara then asks why this process does not also violate the melacha of netilas neshamah. The Gemara quotes two answers to this question:

Rabbi Yochanan explains that processing dyes from a live chilazon indeed violates netilas neshamah, but the beraysa omits this fact, because it is discussing a case where the chilazon is already dead.

Rava answers that the beraysa may indeed be discussing someone extracting dye from a live chilazon, yet he does not violate netilas neshamah because the dyer is trying to keep the chilazon alive while he extracts its dye, since it produces better color when it is alive (Shabbos 75a). Notwithstanding the fact that the extraction will kill the chilazon, since the dyer is trying to keep it alive, he does not violate a melacha for killing it, according to this opinion.

Bleeding

Causing a person or animal to bleed on Shabbos is a Torah violation of shocheit. Which of the 39 melachos does this violate? This is the subject of a major dispute among the rishonim, many of whom conclude that one violates the melacha of netilas neshamah. A question already raised by the rishonim is that if netilas neshamah is the taking of life, why does one violate it when all he did was cause a loss of blood?

The answer is that since the posuk states, ki hadam hu hanefesh, that blood is life, causing bleeding is considered, for the purposes of this melacha, the same as taking life (Tosafos, Kesubos 5b s.v. Dam and Shabbos 75a s.v. Ki).

Causing what we call a black-and-blue mark, which means that there is some form of bruising or superficial bleeding beneath the skin, also violates shocheit min haTorah (Shabbos 107b and Rashi).

As we have learned, the concept of meleches shocheit is taking the life of an animal. It refers to the instances in which it was necessary to take an animal’s life (netilas neshamah) in order to prepare materials for the construction of the Mishkan. However, this netilas neshamah did not require ritual slaughter. To quote the Rambam (Hilchos Shabbos 11:1): “One who slaughters is obligated for desecrating Shabbos, and not only one who slaughters, but anyone who takes the life of any living creature, be it a mammal, a bird, a fish or a creeping creature; whether he took its life through shechitah, nechirah, or by beating it.” I will explain shortly what the word nechirah means.

Drowning

Several later authorities conclude that drowning an animal on Shabbos similarly violates netilas neshamah min haTorah (Shu”t Chavos Yair #164; Nishmas Odom 31:3).

Fish out of water

Removing a fish from water violates netilas neshamah (Rashi, Shabbos 107b; Rambam, Hilchos Shabbos 11:1). To quote the Gemara, “Shmuel said, one who removes a fish from water is guilty of desecrating Shabbos once a coin-sized part of its skin has dried out” (Shabbos 107b). The Gemara then adds that this is true when the dried-out area is between its fins, since, once the fish has dried out this much, it will die, even should one return it to water.

One who catches a fish and hauls it out of the water violates both trapping, tzad, and taking its life. If it was caught from before Shabbos, but left in the water until Shabbos, one who removes it from the water is in violation only for killing it. Someone who trapped the fish on Shabbos and placed it into a bucket of water violated tzad, but not killing it.

Wrong name

At this point, I will discuss a question alluded to earlier. Although when we use the word shechitah, we ordinarily mean the halachically accepted method of preparing an animal for the Jewish table, the word can be used as a translation for any instance in which one would use the word slaughter in English. (See, for example, Yirmiyohu 52:10.) Why, then, does the Mishnah call the melachahashocheit,” rather than the broader and more accurate term hanoteil neshamah, “one who takes the life of an animal?”

The answer is that, in truth, the melacha is killing an animal and not necessarily shechting it. However, the Mishnah (Shabbos 73a) uses the term “hashocheit” because it chooses, for its own educational reasons, the example of a deer (“one who traps a deer, one who slaughters it, etc.”), and prefers expressing the name of the melacha in the context of processing it for kosher food.

Baking or cooking?

This is similar to another case in the same Mishnah, regarding the melacha that we usually call bishul, cooking, which the Mishnah calls “ofeh,” baking. The “cooking” performed in the construction of the Mishkan was the heating of dyes in vats, in which cloth was placed for dyeing. Nevertheless, the Mishnah calls the melacha ofeh, baking, since it fits the Mishnah’s pedagogic style better to refer to the baking of bread, notwithstanding that no baking was involved in the construction of the Mishkan (Shabbos 74b).

Nechirah

We quoted, above, the Rambam’s statement that someone who kills an animal by means of nechirah has violated the av melacha of netilas neshamah. What is nechirah?

In Modern Hebrew, the word nechirah means stabbing an animal to death, a common method of non-kosher slaughter. However, there is no evidence in traditional sources that this is what the word means. From the Mishnah (Bava Kama 7:5; Chullin 5:3; 6:2), we see that the word nechirah refers to a means of killing an animal, but it is unclear exactly which method is intended. Further complicating matters is that Rashi, in two different places, presents two contrary approaches. In Chullin (85b) he explains nechirah to mean choking an animal to death, whereas in Bava Kama (78b), he understands it differently, relating the word nechirah to the Hebrew word for nostril, nechir, which has the same root.

The Rambam could not have understood nocheir to mean choking, because he explains (Hilchos Shabbos 11:1) that choking an animal is a toladah of netilas neshamah, whereas he explains that nechirah is the av melacha itself. Since he wrote no other description, we cannot ascertain what he understood nechirah to mean. Thus, we are left with no definitive conclusion regarding what constitutes nechirah.

Av versus toladah

The statement of the Rambam that I just quoted raises a different question: Indeed, why is choking an animal only a toladah of netilas neshama and not the av melacha itself? Perhaps this is because choking withholds something vital from the animal (air) rather than directly killing it (Nimla Tal, Meleches Shocheit #32).

Dyeing or dying?

In this context, we cannot ignore a seemingly very strange passage of Gemara (Shabbos 75a-b, as explained by Tosafos). “Why is slaughtering on Shabbos a punishable offense for desecrating Shabbos? Rav said because of dyeing, and Shmuel said because of taking a life.” The Gemara then asked of Rav, is slaughtering only a violation of dyeing and not of taking a life? To this, the Gemara replies that Rav meant that slaughtering violates two prohibitions on Shabbos, one for taking a life and the other for dyeing. The Gemara then explains why Rav contends that the shocheit also violates dyeing: The butcher wants part of the hide of a freshly slaughtered animal to look bright red, because it attracts customers interested in purchasing fresh meat. This is an adequate reason to consider the slaughtering a melacha of dyeing.

Dies after Shabbos?

What is the halacha if someone removed a fish from water towards the very end of Shabbos, but the fish did not die until Shabbos was over? Has the person violated Shabbos min haTorah, since his action was performed on Shabbos, or has he not, since the fish did not die until motza’ei Shabbos? This subject is debated by several late authorities (see, for example, Rashash, Shabbos 73a; Minchas Chinuch 298:8; Tzafnas Paneiach, Hilchos Shabbos 9:1; Eglei Tal, Meleches Zorei’a 8:8).

Positive purpose

A general principle regarding the melachos of Shabbos is that they are prohibited min haTorah only when they provide a positive benefit, what we call a tikun (Mishnah Shabbos 105b). Performing a melacha activity whose direct result is negative is called mekalkeil and does not violate Shabbos min haTorah. For example, digging a hole on Shabbos only because one needs some earth with which to cover a spill is not a violation of the melacha min haTorah, but only miderabbanan. The reason is that the hole is itself not an advantage. One violates the melacha of choreish, plowing, only when one creates a furrow or something similar, such that the digging itself results in something beneficial.

A consequence of this principle is that violating netilas neshamah min haTorah requires that the result is positive – it creates or is a stage in the creation of meat, leather, dye or something similar. (Although there is a tanna, Rabbi Shimon, who rules that netilas neshamah is an exception to the general rule of mekalkeil [Shabbos 106a], the halacha does not follow his approach [Rambam, Hilchos Shabbos 8:8, 12:1; Rashi, Chullin 40a s.v. Shalosh; Tosafos, Chullin 29b s.v. Kegon].)

Killing insects

The halacha that a melacha activity is prohibited min haTorah only when its results are positive affects the following common question: Is killing annoying insects on Shabbos prohibited min haTorah? If it is prohibited min haTorah, the only reason to permit eliminating these insects is when they pose a threat to life. However, if the prohibition is only miderabbanan, there may be other grounds upon which to permit this, under extenuating circumstances. Although we will leave details of this for a different time, we now realize that a Torah prohibition is involved only when someone intends to put the insect remains to good use.

I will now present a more detailed discussion about this idea, which requires an introduction germane to a different, seemingly unrelated topic.

Value added

It is prohibited min haTorah to have any benefit from something that was used to worship idols. The Gemara (Chullin 8a) rules that, notwithstanding this law, one is permitted to perform the act of shechitah with a knife that was designated for idol worship. How can this be permitted?

The Gemara assumes that an animal is worth more in the marketplace when alive than after shechitah. This was certainly true in the time of the Gemara, when a living animal could be used for hauling or other employment, something difficult to get it to do after shechitah. The Gemara explains that since an animal is worth more alive than dead, no value was added when the prohibited appliance changed the animal from employee to food. Thus, shechitah did not add any value, and the shechitah knife’s contribution is considered negative. In other words, this act is considered mekalkeil. And this is halachically true, even if you are a butcher with a long line of customers waiting to purchase fresh meat.

The Gemara then states that, although we have established that the avodah zarah knife may be used to shecht the animal, it is forbidden to use that knife to slice up the meat after shechitah has been completed. This is because, at this point, cutting up and slicing the meat add financial value.

The animal is sick

There is an old Yiddish proverb: When a poor man eats chicken, one of them is sick. This proverb can be used to explain the next passage of the Gemara that we have been studying: Rava explained that sometimes it is prohibited to shecht with this avodah zarah knife. When? In the case of a sick animal whose life is in danger, but it is not a tereifah, meaning that its illness does not affect its kashrus status. In this instance, slaughtering the animal, thus permitting its meat for Jewish consumption, increases the value of the animal, since a sick animal cannot work and may die without the benefit of shechitah, which would severely decrease its value. Thus, this shechitah adds financial value, and, as a result, may not be performed with an avodah zarah knife.

Honored guest

The next point in the Gemara is that although we have just established that one may not slice up meat with an avodah zarah knife, there is a situation in which this is permitted. When is this? If it is a nice cut of meat that would be suitable to serve to an honored guest, but one chooses to cut it up. Although this may make it more serviceable for your family, on an objective level it has decreased the value of the meat, since upper echelon people would no longer purchase it. Since the slicing in this instance reduces the commercial value of the meat, it is considered mekalkeil, and therefore permitted to be done with an avodah zarah knife.

Isn’t all shechitah mekalkeil?

On the basis of this Talmudic discussion, Tosafos (Shabbos 106a) asks: Should not every act of shechitah qualify as mekalkeil, whenever the animal is worth more as a work animal? If that is true, then most acts of shechitah will be exempt from desecrating Shabbos, something that the Gemara, in the above-quoted dispute between Rav and Shmuel, should have noted, but did not.

There are several answers to this question. Some assume that the two mitzvos, Shabbos and avodah zarah, follow different rules. Regarding avodah zarah, there must be a financial net gain for it to be considered that one “benefited” from the prohibition. Regarding the laws of Shabbos, a person’s subjective interest that this animal becomes meat is enough reason to render the melacha a tikun (Sefer Yerei’im).

Conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melacha, which implies work with purpose and accomplishment. On Shabbos, we refrain from altering the world with our own creative acts and instead emphasize Hashem’s role (Shemos 20:11). We thereby acknowledge the true Builder and Creator of the world and all that it contains.

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