Rav Yitzchak Halevi Herzog

The yahrzeit of Rav Yitzchak Halevi Herzog (1888-1959) is on the 19th of Tamuz. As I have already written articles on aspects of his life, this article will discuss neither his election as Chief Rabbi of Israel nor his research on techeiles.

Rav Herzog was born in Łomza in Russian Poland, the son of Rav Yoel Leib and Liba Herzog. His father was a talmid chacham of note, and very Zionistic. He had intended to attend the first Zionist conference called by Theodore Herzl, but at the last minute, he was unable to attend because of illness in his family. The Herzog family moved to Leeds, in the United Kingdom, where Rav Yoel accepted a rabbinic position. Many decades later, Rav Yoel Herzog was appointed rav of the largest and most prominent Ashkenazi community in France.

The younger Rav Herzog never attended yeshiva. His early Torah learning was with his father, and, from that point on, he was self-taught. After mastering Shas, Shulchan Aruch etc. at a young age, he corresponded with many of the gedolim of his time, including Rav Chayim Soloveichek of Brisk (after whom he named his older son), the Ridbaz (whom he considered his greatest rebbe other than his father, and after whom he named his younger son, Yaakov), Rav Meir Simcha of Dvinsk (the Ohr Somay’ach), Rav Isser Zalman Meltzer (the Even Ha’ezel, Rosh Yeshiva of Slutkz and later Eitz Chayim in Yerushalayim), Rav Chayim Ozer of Vilna, and many others.

When Rav Yoel Herzog moved to Paris to assume his rabbonus, the son accompanied his parents and attended the Sorbonne. He later returned to the United Kingdom to complete his doctorate at the University of London. A brilliant linguist, he was proficient both in many ancient languages and in numerous modern languages. His multi-disciplinary doctoral dissertation, which has since been published, was on the source of techeiles, which he felt was a sea snail.

Upon completing his academic studies in 1916, Rav Yitzchak Herzog assumed the position as rabbi of Belfast, Ireland. During his years in Belfast, he had occasion to travel to London for a rabbinic meeting where he met Rav Avraham Yitzchak Hakohein Kook, Rav Shemuel Hillman (his future father-in-law, then a dayan in London) and his future rebbitzen. In 1919, Rav Yitzchak and Rebbitzen Sarah Herzog moved to Dublin, still part of the United Kingdom, where he had been appointed the Chief Rabbi. Rebbitzen Herzog, a well-respected askan and baalas chesed and tzedakah in her own right, was later honored with the naming of Herzog Hospital, a highly regarded rehab hospital in Yerushalayim.

The Herzogs had two sons, the older of whom, Chaim, became a general, politician, ambassador to the United Nations and president of the State of Israel. Two of Chaim’s four children also became famous in Israeli government: Michael served as ambassador to the United States and Yitzchak (named for his grandfather) headed the Labor party in the Knesset, was leader of the opposition, chairman of the Jewish Agency and is the current president of the State of Israel.

The younger son, Yaakov, was a musmach of Machon Harry Fischel and at one time was offered the position of Chief Rabbi of the United Kingdom. Professionally, he was a member of the Israeli diplomatic corps, where he served with much distinction. He was an advisor on foreign policy to the Prime Minister (chief of the United States division), minister at the Israeli embassy in Washington D. C., and was the Israeli ambassador to Canada and, later, the director-general of the Prime Minister’s Office. He held secret talks with King Hussein of Jordan in a London clinic that opened the way to peace between Jordan and Israel, established secret contacts with Lebanese Christians and became a personal friend to President Kennedy and Secretary of State John Foster Dulles. While ambassador to Canada, he became most famous for his public debate with the highly anti-Semitic but well-respected British historian, Arnold J. Toynbee, who had called the Jewish people a “fossil” and compared Israel’s actions in the 1948 Arab–Israeli War to the actions of the Nazis against the Jews in the Holocaust. After he demolished Toynbee in the debate, Toynbee’s wife, who had witnessed the debate, publicly rebuked Toynbee for having participated in the debate to begin with, so poor was his showing. Unfortunately, Yaakov Herzog passed away prematurely of a stroke at the age of fifty.

Let us return to when the two Herzog brothers, Chaim and Yaakov, were still little boys in Ireland. Rav Herzog supported the Irish republican cause during the Irish War of Independence. He personally befriended and sheltered Eamon de Valera (later to become President of Ireland) when he was a refugee from the British army and police. When the Irish Free State earned its independence, Rav Herzog became the first Chief Rabbi of Ireland, a position he kept until he moved to Eretz Yisrael.

During his twenty years as a rav in Ireland, Rav Herzog was offered numerous prominent positions, including the Chief Rabbi/Chacham Bashi of Saloniki, then the largest Jewish community in the world; the presidency of Yeshiva University; and the Chief Rabbi of France. He turned down all the offers, saying that he wanted to leave Ireland only if he could move to Eretz Yisrael.

When the senior Rav (Yoel) Herzog passed away in 1935, he had left a tzava’ah requesting that he be buried in Eretz Yisrael. Rav Yitzchak Herzog followed his father’s wishes and personally conveyed his father’s remains to Eretz Yisrael. This was the younger Rav Herzog’s first visit to Eretz Yisrael, and it was at this time that the position of Chief Rabbi of Tel Aviv was open. While he was in Eretz Yisrael, Rav Herzog was interested in the position, and his son Chaim, then still observant, advocated strongly on his father’s behalf. Rav Herzog gave many shiurim while visiting Eretz Yisrael and met many of the country’s great talmidei chachamim and gedolei Yisrael, but did not get the position. The position was awarded to Rav Moshe Avigdor Amiel, at the time the rav of Antwerp, Belgium, who was the candidate of the organized Mizrachi party. (By the way, the candidate who placed third in the election was Rav Joseph Ber Soloveichek of Boston and, later, of Yeshiva University.)

Shortly thereafter, Rav Avraham Yitzchak Hakohein Kook, rav of the new yishuv, passed on, and his position was up for election. I have previously written at length on this election and the fact that Rav Herzog won the election (over Rav Yaakov Moshe Charlap, theRosh Yeshivaof Yeshivas Merkaz Harav) by only a few votes. The Herzogs moved to Eretz Yisrael at the first opportunity, although their younger son, Yaakov, remained in England where he completed his secular education.

By 1936, Rav Herzog was well established in Eretz Yisrael. He testified in front of the Peel Commission in London and participated in the London Conference of 1939 between Jews and Arabs from Mandatory Palestine, convened by the British government. During the Arab Revolt, he, together with other rabbonim, called for avoidance of acts of revenge. Rav Herzog also acted to unify the Jewish settlers in Eretz Yisrael. He attempted to mediate between Chaim Weizmann and Zeev Jabotinsky, encouraging them to cooperate, and took measures to establish unity among the religious leaders in Palestine.  He visited Irgun prisoners who were being held by the British in Eritrea (Africa), in order to encourage them.

From 1936 until his death in 1959, he was Ashkenazi Chief Rabbi of the British Mandate of Palestine and of Israel, after its creation in 1948. He was deeply disappointed that the new state did not follow halacha as its basic civil law, something that he had assumed it would. He was the author of the prayer on behalf of the State of Israel currently recited weekly by many congregations the world over, and was also instrumental in many now-assumed aspects of Israel. His responsa have been published as Shu’t Heichal Yitzchak and he authored two books (of a planned five) entitled Main Institutions of Jewish Law.

In May 1939, shortly before the Second World War, the British issued the White Paper of 1939, restricting Jewish immigration to Palestine. After leading a procession through the streets of Jerusalem, on the steps of the Hurva Synagogue he turned and said: “We cannot agree to the White Paper. Just as the prophets did before me, I hereby rip it in two.” Thirty-six years later, on November 10th 1975, Chaim Herzog, then Israeli ambassador to the United Nations, repeated his father’s gesture, physically ripping up the UN resolution that Zionism is racism.

During World War II, Rav Herzog travelled the world in attempts to have the allies do something to save Jewish lives, including meetings with politicians throughout Europe and with U.S. President Franklin Roosevelt. After the war, Rav Herzog set out on a rescue mission to find Jewish children who survived the Holocaust by being placed with Christian families and to return them to the Jewish people. He also entered abandoned Jewish homes throughout Europe, collecting genizah and other items of Judaica that had survived the war. The Central Committee of Polish Jews gave him a Torah scroll found under the ruins of the Warsaw ghetto, to bring to Eretz Yisrael.

Rav Herzog travelled throughout devastated Europe meeting with religious and state leaders, requesting their help with his mission. He even met with the not-so-pious pope (known as Pius XII), who turned a cold shoulder, refusing to return any Jewish child who had been baptized, even if forcibly or by adoptive Christian families. Rabbi Berel Wein often told how moved he was as a teenager when he heard Rav Herzog tell the story and then break down into uncontrollable crying over the neshamos lost to Yiddishkeit forever. Rav Herzog authored a kinah (lament), which he penned after witnessing the ruins of the Warsaw Ghetto. He began his return to Eretz Yisrael from Poland via a Red Cross train traveling to Prague, bringing with him 500 orphaned children whom he had managed to save from both Holocausts, physical and spiritual.

In 1947 and early 1948, Rav Herzog worked diligently to prepare a comprehensive program for the institution of halacha as the civil legal system in Israel. Throughout his lifetime, Rav Herzog wrote many articles and books, in addition to the above-mentioned Main Institutions of Jewish Law, discussing what should be the judicial system in the Jewish state.

Rav Herzog, described by one journalist as no less than a “phenomenon of knowledge,” had a broad range of interests and areas of expertise. “So great was the scope of his activities that to the outside observer it may seem as though they were accomplished by many different people in different fields, not by one.” He attracted an eclectic group of friends and acquaintances — rabbonim such as Rav Yechiel Michel Tukachinski; prominent secular Jewish leaders; politicians, such as Mayor Fiorello La Guardia of New York and Eamon de Valera, leader of the Irish Revolution; and even the catholic Archbishop of Ireland.

Notwithstanding his own prominence as a Torah scholar and his position as Chief Rabbi of the nascent State of Israel, he often suppressed his own halachic position in order to create consensus and avoid machlokes. (This is in noted contrast to some later holders of the august position.) For example, when the Chazon Ish opposed introducing zebu cattle to Eretz Yisrael, Rav Herzog rescinded his psak accepting them, notwithstanding that such prominent chareidi authorities as Rav Vosner agreed with Rav Herzog.

Rav Herzog passed away in 1959 and is buried in the Sanhedria Cemetery. He was succeeded by Rav Issar Yehuda Unterman. Thus, the first three rabbonim of the new yishuv were, in order, Kohein, Levi, Yisrael.

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Halachic Writings of Rav Itzele Peterberger

Question #1: When and where to daven?

If all the minyanim in my town daven shacharis after zman keri’as Shema, is it preferable for me to say all three paragraphs of kerias Shema and then daven with the tzibur, or should I daven shacharis bi’yechidus before zman kerias Shema and join the tzibur to answer borchu, kaddish and kedusha?

Question #2: Lending without proof

May I lend someone money without witnesses or without the borrower signing an IOU note acknowledging the loan?

Question #3: Acceptable resentment (Tar’omes)

At times, the Gemara states that I can be upset at someone for what they did to me. Are there halachic guidelines as to what type of resentmentI may have?

Question #4: Shocheit

My town has a shocheit who may not be up to snuff. Can we get rid of him?

Foreword:

The eleventh of Av is the yahrzeit of one of the greatest of the ba’alei musar, Rav Yitzchak Blaser, commonly called Rav Itzele Peterberger. Aside from being a highly respected talmid chacham, as evidenced from his halachic writings, he is considered the most prominent of the disciples of Rav Yisrael Salanter and is the source of most of the writings attributed to Rav Yisrael. Rav Itzele wrote several works, Ohr Yisrael, Kochavei Ohr and Nesivos Ohr, which he states are completely quotations of what he learned from Rav Yisrael.

Aside from many articles that Rav Itzele published in various rabbinic journals, his primary published work is called Pri Yitzchak. At the time he published the first volume of this work, he had no children, and he was the only surviving descendant of his father. Rav Itzele had two brothers, both of them prominent talmidei chachamim and rabbonim. Unfortunately, both of them passed away as young men and without progeny.

When Rav Itzele turned 50, his rebbitzen insisted that they get divorced so that he might be able to have children from a different wife. He refused her entreaties, until she took him to a din Torah to force him to divorce her. After their divorce and his subsequent remarriage, he continued to support her financially, the true ba’al musar that he was.

From Rav Itzele’s second marriage, he had a son and three daughters.

I have a personal reason to write about Rav Itzele. His first rebbitzen, this unbelievably altruistic woman, was a sister of my great-grandfather, which makes Rav Itzele my great-great-uncle – and makes me the closest his first rebbitzen had to descendants.

Rav Itzele Peterberger was born in Vilna in 1837; he studied under Rav Yisrael Salanter in Kovno. While yet in his 20’s, Rav Itzele reluctantly agreed to become the rav of St. Petersburg (at different times in history also known as Leningrad and Petrograd), then the capital of the Czar’s Russian Empire. Of course, being the rav of the capital city was a position both of great prestige and greater responsibility, and his position enabled him to assist many Jews living under the Czar. At this time, perhaps the majority of world Jewry lived under the thumb of the viciously anti-Semitic Czar’s regime.

Because of this position, he was called Rav Itzele Peterberger.

Rav Itzele held the position for sixteen years, and he then returned to Kovno, where he was the head of the famed Kovno Kollel. He was also involved in the creation of both Slabodka yeshivos, Kenesses Yitzchak and Kenesses Beis Yisrael, and the yeshiva in Kelm, called the “Talmud Torah.” (At this time, Slabodka was a suburb of Kovno, the two cities located on opposite sides of the Neiman River, now called the Nemunas. Slabodka is now incorporated within the city of Kovno, currently called Kaunus.)

In his late 60’s, Rav Itzele left Europe and moved to Eretz Yisrael, where he lived out his last years in Yerushalayim. He passed away in 1907.

Since this is a halachic column and not a presentation of biographies of gedolim, the rest of this article will focus on various points in halacha that Rav Itzele wrote about in his seforim, Pri Yitzchak and Nesivos Ohr. As mentioned, the latter was written by Rav Itzele as the opinions and thoughts of Rav Yisrael Salanter.

When to daven?

The first question with which I opened our article is: “All the minyanim in my town daven shacharis after zman kerias Shema. Is it preferable for me to say all three paragraphs of kerias Shema before davening and then daven with the tzibur, or should I daven shacharis by myself before zman kerias Shema and join the tzibur to answer borchu, kaddish and kedusha?”

The very first responsum that Rav Itzele wrote in Pri Yitzchak is devoted to this topic. In his lengthy teshuvah, he analyzes passages in the Gemara, rishonim and early acharonim on the topic. First, he quotes the various opinions regarding how much of kerias Shema is required for one to fulfill the mitzvah min haTorah. He notes that some authorities require that we say only the first pasuk; others require reciting the first paragraph; still others contend that the mitzvah min haTorah requires that we say all three paragraphs, including parshas tzitzis. However, Rav Itzele contends that this dispute among halachic authorities should not affect what we do. Regardless of how much of Shema must be recited to fulfill the mitzvah min haTorah, the rabbinic mitzvah requires that we recite all three paragraphs of Shema before sof zman kerias Shema.

Based on his analysis, Rav Itzele concludes that if a minyan will daven after zman kerias Shema, the individual should daven bi’yechidus before the tzibur does. He rules that one should recite Shema with its berachos in the correct time rather than reciting Shema earlier and then davening after zman kerias Shema. His reason is that Chazal wanted us to fulfill mitzvas kerias Shema while reciting Shema with its berachos, notwithstanding that the berachos that surround the Shema are not categorizedas birchos hamitzvah, berachos recited immediately before fulfilling a mitzvah. Whether these berachos are categorized as birchos hamitzvah or not is the topic of a dispute among the rishonim, with most rishonim contending that they are not birchos hamitzvah. Many proofs can be rallied to this approach, among them the fact that these berachos are not structured like birchos hamitzvah. If they were, their text would be Baruch Attah Hashem Elokeinu Melech ha’olam asher kideshanu bemitzvosav vetzivanu al kerias Shema.

Notwithstanding his conclusion that birchas kerias Shema are not birchos hamitzvah, Rav Itzele still maintains that Chazal intended that we fulfill mitzvas Shema while we recite the birchos kerias Shema, and that reciting Shema before davening should be done only when one is uncertain whether the tzibur will miss the zman of kerias Shema. He notes that his position appears to disagree with the majority of later halachic authorities on the subject, yet he is absolutely convinced that this is the correct halachic position. (By the way, there is evidence that the Vilna Gaon and his disciples also held this way.)

Lending without proof

At this point, let us analyze the second of our opening questions: “May I lend someone money without witnesses or without the borrower signing an IOU note acknowledging the loan?”

The Gemara (Bava Metzia 75b) teaches that it is forbidden to lend money without proof that can be used afterward to demonstrate that the loan took place. Its actual words are: “Rav Yehudah said in the name of Rav: Whoever has money and lends it out without witnesses violates the prohibition of lifnei iveir lo sitein michshol, ‘you may not place a stumbling block in front of the blind.’ Reish Lakish said: He brings a curse upon himself.”

The Gemara understands that the prohibition of lifnei iveir includes causing someone else to violate a mitzvah of the Torah. In this instance, as Rashi explains, the concern is that, with time, the borrower will realize that the lender has no proof that a loan was ever taken out, and that if he, the borrower, denies having borrowed the money, he can avoid paying it back.

Although the ruling of this Gemara is recorded in all the standard halachic authorities, including the Rif, the Rambam, the Rosh, the Tur, the Shulchan Aruch and all its commentators, widespread practice was that people ignored this passage of Gemara and loaned money without any proof. Examples of appropriate proof that a loan transpired include lending the money with witnesses present or having the borrower sign an IOU note. Another way to avoid the problem of lifnei iveir is to require the borrower to provide collateral such that if the borrower defaults or denies the loan, the lender simply sells the collateral as payment.

When people lend money without proof, although they are performing a great mitzvah of lending money, they are transgressing a dictate of the Gemara while doing so. Several authorities attempt to explain why the Gemara’s prohibition does not apply.

Rav Itzele shares some approaches of the Acharonim that attempt to justify the practice, but demonstrates why he is dissatisfied with their rationales. He then presents his own approach to explain why people’s actions were justified. I have chosen not to explain in this article the finer erudite reasons that he presents in this venue; suffice it to say, his conclusion is that one should not lend money without proof, as the Gemara states. However, he created what is called a limud zechus, a reason to explain why people do what they do, notwithstanding that one should not rely on this heter.

Question #3

The third of our opening questions is different from the previous two, in that its source is from Nesivos Ohr, one of the works that Rav Itzele states are quotations of lessons he learned directly from Rav Yisrael Salanter. Thus, this halachic discussion is not only from Rav Itzele, but from Rav Yisrael himself!

Tar’omes

According to halacha, wronging someone financially does not always mean that the aggrieved party is entitled to financial compensation. There are situations that are categorized as grama, indirect damage, that are ruled chayov bedinei shamayim yet beis din cannot demand payment. In these instances, the damager should pay or the heavenly tribunals will punish him for not having paid. However, should the aggriever refuse to pay, the aggrieved party has no halachic recourse whereby he can force collection.

Complaints, complaints

There are also situations in which Chazal rule that an aggrieved party may have tar’omes, a complaint that someone dealt with him unethically, although he has no claim to compensation for damages. Several examples appear in Chazal where this is the ruling. Here is one:

An employer engaged a foreman to hire daily workers for whom he was willing to pay forty dollars per diem. For whatever reason, the foreman hired the workers for only thirty dollars; they were willing to be hired for the lower amount and did not know that the employer was willing to pay them more. The workers now discover that, had they known, they could have earned more daily bread for their work. Do they have any financial claim against either the employer or the foreman?

The answer is that they do not. Since they agreed to the price quoted by the foreman, who was the party with whom they negotiated, they have no financial claim against either the employer or the foreman. However, the Gemara states that they have a non-financial grievance against the foreman, which is called a tar’omes. This is one instance in which the Gemara refers to someone as having a claim that is not financial but he can be upset at the person who caused him loss. Are there halachic guidelines as to what type of resentmentI am permitted to have?

Rav Itzele quotes Rav Yisrael Salanter as noting that there is a legal claim called tar’omes. This means that the employees cannot sue the foreman for money, but they have a halachic right to be upset at him should he not apologize to them or make amends in a way that satisfies them. If they reach an agreement with him and/or they forgive (mocheil) him, even without his having made any amends, they can no longer have any tar’omes against him. After all, they were mocheil him for any claims they may have.

Problematic shocheit

At this point, let us discuss the fourth of our opening questions: “My town has a shocheit who may not be up to snuff. Can we get rid of him?”

There are several other fascinating halachic issues discussed by Rav Itzele in the second volume of Pri Yitzchak, which was published posthumously by one of his sons-in-law, Rav Chizkiyahu Mishkovski, in 1913. One teshuvah (Pri Yitzchak II #22) involves a shocheit regarding whom concerns have been raised about his knowledge of the laws of shechitah and bedikah, the checking for tereifos. He appears to be an observant Jew, and he has a kabbalah on shechitah, the halachic equivalent of a shocheit’s license.

(The fact that such a shocheit had a kabbalah is astonishing, since it usually requires that a recognized, respected shocheit test him on his skills, oversee him perform shechitah successfully several times and check that his shechitah was kosher. In addition, kabbalah requires that a rav tested him on his knowledge of the laws of shechitah, on his ability to check a shechitah knife properly and to repair a nick on a shechitah knife in a nick of time. The assumption is that if he is not skilled enough to repair his knife quickly under the pressure of having a rav watch his work, he will be unable to sharpen his knife properly and quickly while working as a shocheit, if it will become necessary to do so. To receive kabbalah as a shocheit ubodeik, which is what is required for virtually all such positions, he also needs to pass testing on his abilities both as a bodeik penim,who checks whether the animal is a tereifah while the lungs are still bifnim, “inside” the animal, and as a bodeik chutz, who checks them after they have been removed.)

As a true ba’al musar, Rav Itzele is concerned about destroying the reputation and livelihood of this “shocheit,” but, of course, neither can the kashrus rules be violated one iota.

Rav Itzele rules that he may not work as a shocheit without full supervision; however, Rav Itzele does not exclude him from ever being a shocheit. Rav Itzele rules that this “shocheit” must learn all the laws and skills of a shocheit and undergo testing until he demonstrates that he has mastered the skills and knowledge required. He also insists that the “shocheit” accept that he is not competent to rule on the laws of shechitah, but must refer any question to a competent rav.

Non-kosher fish in your meat!

Here is another responsum from Rav Itzele Peterberger (Pri Yitzchak II #25). A piece of non-kosher fish fell into a pot of kosher meat. Obviously, if the quantity of kosher food is less than sixty times the volume of the non-kosher fish, the pot and its contents are all non-kosher – the food can be sold to a non-Jew or disposed of and the pot requires kashering. But what is the halacha if there is sixty or more times the kosher food relative to the amount of non-kosher fish?

There is a major dispute among halachic authorities regarding whether the practice of not eating fish and meat together applies when the fish is less than one-sixtieth of the food. The Rema (in Darkei Moshe, Yoreh Deah Chapter 116) and the Taz (Yoreh Deah 116:2) prohibit the food, whereas the Mordechai and the Shach (in Nekudos Hakesef ad loc.) permit it. Rav Itzele cites Talmudic sources whereby he demonstrates that non-kosher fish is certainly nullified one part in 60; the dispute among the earlier authorities can only be regarding small amounts of kosher fish that became mixed into meat.

Conclusion

We know most of the details of what Rav Yisrael Salanter bequeathed to us only from the writings of his talmidim, and the foremost writer among his disciples was Rav Itzele Peterberger. Thus, much of the invaluable lessons that have been handed down to us from Rav Yisrael Salanter, the unbelievable gadol, the founder of the musar movement, is known from my great-great-uncle. It certainly behooves us to study the Torah of this great leader, even if we are not his great-great-nephews.

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More on Bechor

Question #1: How Many?

How many gifts does a kohein receive?

Question #2: Petter rechem

Is there a difference between something being firstborn and being a petter rechem?

Question #3: Uncertain Bechor

What is the status of someone (or something) who is uncertain if he meets the halachic qualifications of a bechor?

Foreword

After Korach challenges the rights of the kohanim, the Torah reinforces the rights that Hashem provides them by providing an extensive list of 24 gifts (Bamidbar 18:8-19, 26-28). These can be divided into the following categories (see Bava Kama 110b; Chullin 133b):

1. Those that may be eaten only in the Beis Hamikdash, of which there are ten, including various korbanos (kodashei kodashim), the twelve loaves of the lechem hapanim that were eaten on Shabbos, the korban omer brought on the second day of Pesach, the two loaves brought on Shavuos (shetei halechem), the leftovers of the mincha offerings and the leftovers of the oil brought by the recuperated metzora. All the items on this list may be eaten only by male kohanim.

2. Those that must be consumed within the walls of the halachic city of Yerushalayim: The bikkurim (annual first fruit of the seven species), the firstborn kosher animals (bechor), the designated portions from the various types of korbanos shelamim. Some of these may be eaten only by kohanim and their families, whereas others may be eaten by anyone.

3. Those with sanctity that may be consumed anywhere: Terumah, terumas maaser and challah. These may be eaten only by the kohanim and their families.

4. Those for consumption that have no sanctity: the maw, jaw and paw of non-kodashim animals. These are the property of the kohein but he may give or sell them to anyone to eat. Since the tongue is included, this would provide kohanim with a predominant market in selling pickled tongue, although I know of no sources that say that the kosher deli business was exclusively kohanim’s domain.

5. Non-foods: The money of pidyon haben; the redemption of the firstborn male donkey (pidyon petter chamor), the hides of the kodashei kodashim, the first of the wool shearing (reishis hageiz); certain consecrated properties that the kohanim received at the time that there was yoveil, and a rarely-received gift called gezel hageir.

Since the members of Kelal Yisrael were required to presents these gifts to the kohein, this caused the “common” Jew to interact with kohanim on a regular basis. It seems clear that this was so that the kohein provide regular spiritual instruction and direction, perhaps as the rebbi or admor of the people.

Introduction – More on Bechor

In our previous article on the rites of the firstborn, we studied some of the laws of bechor; this will continue the discussion of those mitzvos.

Parshas Korach teaches that “Every petter rechem (literally, that which opens the womb), among all flesh that is brought close to Hashem, whether human or animal, shall be yours (i.e., to Aharon and his descendants). The firstborn among humans should be redeemed as well as the firstborn of the non-kosher animals. The redemption (of the firstborn child): from when he is a month old, you should redeem his value at five shekalim of silver, using the shekel of holy items – whose value is twenty geirah. However, the firstborn calf, lamb or kid shall not be redeemed because it is holy; you shall throw its blood onto the altar and you shall burn its fat as a fire offering as a pleasant fragrance for Hashem. But its meat will be yours (Bamidbar 18:15-18).” At this point, the Torah teaches that the flesh of the bechor animal has the halachic status of kodashim kalim that belong to the kohein and can be eaten within Yerushalayim, not only by the kohein, but even by his family members.

The pasuk first states that these laws apply to a petter rechem, that which “opens the womb,” and then states that they apply to a bechor, a “firstborn.” Are these two terms identical?

Indeed, they are not. A petter rechem is born through natural delivery, which excludes  birth via caesarian section or its equivalent for an animal. In other words, the mitzvos of pidyon haben, pidyon petter chamor and bechor for korban do not apply to a firstborn who was surgically removed from his mother or born as the result of an unfortunate rupture. There is halachic discussion as to whether or not a bechor removed via vacuum suction or forceps delivery has the status of a petter rechem, but the halachic background for this topic is beyond the scope of this article (see Chullin 70a; Bechoros 9b).

Another difference in halacha between the term petter rechem and the term bechor is that a petter rechem means that he/it was not preceded by a miscarriage. In this instance, the miscarriage is considered the petter rechem. Of course, since the miscarried offspring did not survive, there is no mitzvah to sanctify or redeem it, and therefore the halachic result is that the father or owner is exempt from redeeming the bechor.

Three types of kedusha

The three types of sanctified petter rechem: 1. petter chamor donkeys, 2. beheimah tehorah, kosher animals, and 3. pidyon haben, humans. These three mitzvos have three very different sets of rules. Allow me to explain this very briefly; I will follow the order of meseches Bechoros in doing so.

1. Petter chamor

Petter rechem donkeys have sanctity that must be removed by redemption. This mitzvah is called pidyon petter chamor. As is the rule regarding most of the 24 gifts of the kohein, the owner has the right to decide to which kohein he gives the redemption (see Rambam, Hilchos Bechoros 1:15), just as the father of a firstborn son has the right to decide to which kohein he provides the five sela’im of pidyon haben.

As the Gemara (Bechoros 12b; 51b) derives hermeneutically, there is an interesting halachic difference between pidyon haben and the redemption of a petter chamor. Pidyon haben involves only one step – the father recites a bracha on the mitzvah and then gives the kohein the five silver sela’im or their equivalent value. Until the father gives the money to the kohein, he has not fulfilled any mitzvah by setting aside the money for this purpose.

On the other hand, there are actually two stages in performing the mitzvah of petter chamor, (a) the redeeming and (b) the giving. In the redeeming step, the owner takes a lamb or kid (or other item worth as much as the donkey) and states that he is redeeming the donkey in exchange for the lamb, kid, or other item of value. Prior to making this statement, the owner recites a bracha, Asher ki’deshanu bemitz’vosav vetzivanu al pidyon petter chamor (Tosafos, Bechoros 11a; Shulchan Aruch, Yoreh Deah 321:6). The owner then declares that he is exchanging the seh or the other item for the kedusha of the donkey. As soon as he performs this exchange, the sanctity is removed from the petter chamor and one may use the donkey (Mishnah, Bechoros 12b). The donkey is redeemed at this point, notwithstanding that the kohein has not yet received the gift.

In the giving step, the owner gives the seh (or the item exchanged for the donkey) to the kohein as a gift. No bracha is recited on this step of the mitzvah, and there is much discussion among halachic authorities regarding why not (Taz, Yoreh Deah 321:7).

Although there are two different parts of this mitzvah, redeeming the kedusha from the firstborn, and giving the gift to the kohein, both parts of this mitzvah can be performed simultaneously, by giving the seh (or item of value) to the kohein and telling him that this is redemption for the donkey.

Safek

In the instance that there is an irresolvable question as to whether a donkey was a firstborn male, the owner sets aside a seh, either a sheep or a goat, to redeem the newborn male, but has no obligation to give the seh to a kohein. Since the foal may have sanctity, we redeem him, but since there is no proof that there is an obligation to give it to a kohein, the owner may keep the seh (Mishnah, Bechoros 9a). This is referred to in halacha as hamotzi meichaveiro alav harayah, he who wants to collect has the burden of proof. This principle, which the Gemara (Bava Kama 46a) refers to as “the major rule in adjudicating civil law,” means that one can insist on payment only when proof of the obligation is established without doubt. In our particular instance, the kohein can insist on payment only if he can prove that the animal is a petter rechem.

A practical case where this might happen is when a jenny’s first births are twins, one male and the other female, and the birth was unattended by a human. Assuming that there was no camera focusing on the birth, we have no way of knowing which twin was born first and whether there is a bechor.

2. Bechor beheimah tehorah

Petter rechem kosher animals have the sanctity of korbanos and are the property of the kohein. Should their sanctity be damaged by their becoming permanently blemished, they remain the property of a kohein, who is to have them shechted and eaten. (It may not be used for work, nor may it be shorn.) Unlike other korbanos that are redeemed when they become permanently blemished, a bechor is never redeemed, as stated in the pasuk that I quoted above “However, the firstborn calf, lamb or kid shall not be redeemed because it is holy” (Bamidbar 18:15-18).

Mum oveir

There are two types of blemishes that affect a korban. One is a temporary blemish, a mum oveir, that will eventually heal. An animal with a mum oveir cannot be offered as a korban until its blemish heals. The other type of blemish is a mum kavua, a permanent blemish. Once an animal has such a blemish, it may never be offered as a korban.

How do we know whether a blemish is permanent or temporary?

Some blemishes are obviously permanent and do not require expertise for their determination. However, it is often difficult to ascertain whether a blemish is permanent or temporary and the decision of an expert is required to ascertain that the animal has a permanent mum and may be shechted. As we see from the Gemara (Sanhedrin 5a), this expertise was regarded as the highest level of semicha, called yatir bechoros, and was granted only to rare individuals, even at the time of the Gemara.

There is a fundamental and fascinating passage of Gemara (Sanhedrin 5a-b). regarding the licensing of poskim in general, and specifically to authorizing slaughtering a bechor on the basis that the blemish it possesses is permanent. In this era, most of the Jewish population lived in Bavel, but all the yeshivos were in Eretz Yisrael. The level of Torah knowledge in Bavel was weak, and rabbonim moving to Bavel would be engaged heavily in teaching Torah and kiruv work. Prior to leaving for Bavel, there was a need to establish to what extent they could rule (pasken) on halacha. As the head of the Sanhedrin, only Rabbi Yehudah Hanasi, usually called simply Rebbi, the teacher of all of Kelal Yisrael, could render this decision and licensing.

“Rabbah bar Chonah (who was a nephew of Rav Chiya) was leaving for Bavel. Rav Chiya told Rebbi: ‘My nephew is going to Bavel. Does he have permission to pasken on kashrus matters?’ Rebbi permitted him.” The wording used by Rav Chiya to phrase his question, “Does he (Rabbah bar Chonah) have permission to pasken on kashrus matters?” [was yoreh?], was made with the tone voice of a question and not a statement. Rebbi responded — yoreh!, an affirmative statement. Ever since, this has become the terminology used to license someone who has sufficient halachic knowledge to interpret kashrus laws reliably and correctly, yoreh yoreh. Most people are surprised to discover that the doubling of the words yoreh yoreh was originally a question and answer: yoreh? yoreh! “Is he authorized to rule?” “Yes, he is.”

Continuing the passage of Gemara: Once Rebbi authorized Rabbah bar Chonah to rule on kashrus issues, Rav Chiya asked “yadin?” “Is he authorized to judge financial matters?” and Rebbi answered, “Yadin! Yes, he is.” At this point, Rav Chiya asked “yatir bechoros?,” “Is he authorized to permit the slaughter of a bechor because its blemish is permanent?” and Rebbi authorized this, also.

The Gemara continues: When Rav left for Bavel, Rav Chiya asked Rebbi “Yoreh?” and Rebbi answered affirmatively “Yoreh!” “Yadin?” “Yadin!”

“Yatir bechoros?,” Rebbi surprised everyone by answering “Al yatir bechoros,” “I do not authorize him to permit the slaughter of firstborn animals.” The Gemara inquires why, since Rav was known to be a greater scholar and, furthermore, he had extensive training in checking blemishes. The Gemara concludes that precisely because Rav was such an expert Rebbi did not authorize him. Rebbi was concerned that when Rav would permit blemishes, people would think that they understood why he had done so. In reality, they would not realize that the case in front of them was not similar to the case that Rav had permitted. This would result in people permitting temporary blemishes with the mistaken impression that Rav had permitted those same blemishes.

Today we do not consider anyone expert to rule on these laws. However, when there is a mum that is very obviously permanent, such as a broken leg or a blind eye, three shul attending people may rule together that the blemish is permanent and the animal may be slaughtered.

In this context, we find an interesting dispute in a Mishnah dating back to the era when there was a semicha allowing its recipient to rule whether a bechor had a permanent blemish. An animal fell into a pit, and in order to rule whether it has a blemish or not, we need to raise it from the pit. The tanna’im Rabbi Yehudah and Rabbi Shimon disagree as to whether this is permitted on Yom Tov (Beitzah 25b-26a). The Gemara then devotes a discussion regarding under which circumstances this would be permitted. Since we no longer allow an ordained expert to rule this law on his own, this case is not applicable (Shulchan Aruch, Orach Chayim 498:9).

Non-Jewish ownership

The tanna’im dispute whether partial ownership of a non-Jew of either the mother or the fetus exempts the offspring from the sanctity of bechor, either of a kosher animal or of petter chamor (Bechoros 2b-3a). The anonymous author of the Mishnah (Bechoros 2a, 13a, 16a) exempts these situations from the rule of bechor, whereas Rabbi Yehudah rules that the rule of bechor applies when the non-Jew owns only a small part. The halachic conclusion follows the Mishnah that these animals are exempt (Tosafos, Bechoros 3b).

There is an additional dispute among early amora’im (Bechoros 3a) how much of the mother must be possessed by the non-Jew to create this exemption. Rav Chisda and Rava rule that the non-Jew must own enough that, were his part to be removed, the animal would be unable to live, whereas Rav Huna exempts the animal even if the non-Jew’s portion is as small as the animal’s ear, whenever removing the part owned by the non-Jew would render the animal into a ba’al mum, a blemished animal inappropriate as a korban. The halacha follows the lenient opinion (Tosafos 3b s. v. Deka).

Since a bechor animal has sanctity that cannot be removed, having one around can potentially cause a lot of halachic problems. People might use the animal in ways that violate its sanctity, which is a Torah violation. To avoid these potential sins, the accepted practice is to carry out a sale of the pregnant mother before birthing so that the firstborn is not halachically a bechor. This can be done because the firstborn’s sanctity begins at the moment of its birth.

3. Pidyon haben

As I mentioned above, there are three types of petter chamor, and we have already discussed the firstborn donkey and the firstborn kosher animal. The third type is redeeming the firstborn son.

Safek pidyon haben

In the instance that there is an irresolvable question as to whether a baby boy was firstborn, there is no obligation altogether for the father to perform a pidyon haben because of the rule hamotzi meichaveiro alav harayah. Since no sanctity is being removed through the pidyon, it is simply a gift to the kohein, which Dad is under no obligation to do.

Conclusion

As we see from the stories of Yaakov and Eisav, Reuvein, and Efrayim and Menashe, that even before makas bechoros firstborn males had a special role in serving Hashem. At the time of makkas bechoros, firstborn male animals owned by Jews became sanctified. That moment also elevated the sanctity of the bechorim of Kelal Yisrael, particularly regarding the service to be performed in the Mishkan and the Beis Hamikdash. However, the bechorim lost their special status when they worshipped the eigel hazahav, and the Levi’im replaced them. The pidyon haben is to redeem the bechor from the “even higher level” of holiness that he received as a result of makas bechoros (see Seforno on Bamidbar 3:13). As a result, the bechor must undergo a redemption ceremony to make amends – this is both to compensate the kohein and to serve as a means of “redeeming” the kedusha. We see the everlasting benefits kept by the tribe of Levi for remaining faithful to Hashem at the time of the eigel hazahav.

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The Rites of the Firstborn

Question #1: Firstborn Pachyderm

How does one redeem a firstborn elephant?

Question #2: The ten commandments

How many times does the Torah mention the mitzvos of bechor?

Question #3: Petter Chamor

“What are the laws of petter chamor?”

Question #4: Firstborn of the Levi

Is a levi required to redeem his firstborn donkey?

Foreword:

Parshas Bechukosai teaches that “No one may declare the firstborn among the animals that are to Hashem with a different status of holiness — whether it is a calf or a seh, it belongs to Hashem” (Vayikra 27:26).

The word seh has no accurate translation in English since it means both a lamb (a baby sheep) and a kid (a baby goat) (see Parshas Re’eih, Devarim 14:4). To minimize confusion, I will be using the word seh when referring to both lambs and kids.

To explain the halachic ramifications of the pasuk I just quoted, we need to define the word “firstborn.” In halacha, there are two different sets of laws that result from being firstborn, and the definition of firstborn is not the same for these two sets:

(I) Sanctity of the firstborn

From the time that the male firstborn in Egypt were eliminated in the last of the ten makkos, firstborn people, kosher beheimah animals and donkeys all have sanctity. This sanctity exists only when a mother produces a petter rechem, literally, the opener of the womb; i.e.,she gives birth naturally to a male firstborn, as opposed to a c-section.

(II) Financial rights of the firstborn

The rights of a bechor to a double portion in his father’s estate is only the father’s firstborn son and does not depend on whether he is a petter rechem (Mishnah, Bechoros 46a).

In other words, someone can be a bechor regarding the laws of receiving a double portion in his father’s estate, yet not have the sanctity of a bechor for pidyon haben purposes, and vice versa, one can be a bechor for pidyon haben purposes and not have any claim to a double portion in his father’s estate (Mishnah, Bechoros 46a).

The rest of this article will discuss the first category of firstborn, one who has sanctity — whether human, kosher beheimah or donkey — because he is a petter rechem.

The three types of sanctified petter rechem: humans, kosher animals and donkeys; have different rules. Allow me to explain this briefly.

1. Pidyon haben

Petter rechem boys born from parents, neither of whom is of a kohein or levi family (see Bechoros 4a), are “redeemed” by having the baby’s father pay the value of five silver sela’im to a kohein. In today’s currency, we follow the opinion of the Chazon Ish who considers five silver sela’im to be the equivalent of 100 grams of pure silver. (Silver coins are not pure silver, which can be bent and filed relatively easily, but are usually an alloy of 75% silver and 25% copper, which produces a harder coin.)

There is no prohibition to use the firstborn child even if he is not redeemed, nor does the kohein take the baby home if his father refuses to pay. Notwithstanding that the Torah and the Mishnah refer to this procedure as a “redemption,” it seems more accurate to describe this as a gift to the kohein (see Bamidbar 18:15-16).

2. Bechor beheimah tehorah

Petter rechem kosher animals have the sanctity of korbanos and are the property of the kohein. Should their sanctity be damaged by their becoming blemished, they remain the property of a kohein, and they are shechted and eaten. They may not be used for work, nor may they be sheared (Devarim 15:19). In other words, there is never any redemption of these petter rechem animals, as the Torah expresses in this week’s parsha, in the pasuk that I quoted above.

3. Petter chamor

Petter rechem donkeys have sanctity that must be removed by redemption. This mitzvah is called pidyon petter chamor. Should the owner not want to redeem his donkey, he is required to destroy it in a procedure called arifah, which is a specialized form of decapitation. It is prohibited min haTorah to derive any benefit from the remains of the beheaded donkey.

The redemption can be performed with either a sheep or a goat of any age, gender or value, or by paying the kohein the market value of the donkey at the time of its redemption with virtually anything of marketable value. (There are a few exceptions; for example, the donkey cannot be redeemed by giving the kohein a loan document or real estate.)

I mentioned above that the term seh of the Torah means either baby sheep or baby goat; the halacha is that redeeming the donkey may be performed with any sheep or goat – it is not limited to the young of either species (Mishnah, Bechoros 9a). The option of using a seh is to make the redemption less expensive for the owner of the petter chamor.

Firstborn pachyderm

The firstborn of kosher chayos, such as deer, antelope and giraffe, are not sanctified, nor are the firstborn of non-kosher animals sanctified, with the exception of donkeys (see Bechoros 5b). Therefore, we do not need be concerned about the difficulty or danger in performing arifah on a newborn elephant by decapitating him with a cleaver. This is exceptionally useful information since newborn male African elephants may weigh over 360 pounds and they are protected heavily both by mom and many aunts and cousins. Therefore, the answer to our opening question, “How does one redeem an elephant that is a bechor?” is, very simply, that one doesn’t.

The ten commandments

Now that we understand the basic laws of bechor, we should note how often the Torah mentions the mitzvos of sanctifying the bechor (the second of our opening questions). In all, I enumerate here ten times!!

1. Parshas Bo: “Make every bechor that opens any womb among the Benei Yisrael, whether it is human or animal, holy to Me; it is Mine” (Shemos 13:2). The importance of this pasuk is emphasized in that it is included in our tefillin, both of the arm and of the head. We should also note that this pasuk implies that the petter rechem of any animal, whether kosher or not, has sanctity. It also implies that the petter rechem of any non-kosher animal must be treated with sanctity, not exclusively donkeys. As I mentioned above, this is not the halacha, and we will mention at the end of this article why not.

2. Again in Parshas Bo: “When Hashem brings you to the land of the Canaanites that He swore to you and your forefathers and gives it to you, you shall hand over to Hashem every [human] male opener of the womb and every opener of the womb pushed out by your animal to Hashem. Furthermore, every donkey that opened the womb shall be redeemed with a seh, and, if you do not redeem it, you must decapitate it. Every firstborn human among your sons you shall redeem. In the future, when your child will ask you, ‘What is this (service)?’ you shall tell him that we perform these mitzvos because Hashem extracted us from the Land of Egypt… when Pharaoh stubbornly refused to release us, Hashem killed every firstborn in the land of Egypt, from the firstborn human to the firstborn animal. For this reason, I offer to Hashem every male (kosher animal) who opens the womb and I redeem the firstborn of my sons” (Shemos 13:10-15). This passage is also included in our tefillin. We should note that here it mentions specifically redeeming donkeys and no other non-kosher animals. Bear in mind, that, at the time of the Torah, camels and horses, both of which are non-kosher, were commonly owned by the Benei Yisrael. Therefore, it seems that when donkeys are mentioned in the Torah, it is to the exclusion of camels and horses.

3. Parshas Mishpatim: “The firstborn of your sons you shall give to Me — so shall you do to your ox and to your flock. For seven days it shall be with its mother, and on the eighth day you shall give it to Me” (Shemos 22:28-29).

4. Parshas Ki Sissa: “Every [human] opener of the womb is Mine, and all the males of your livestock, the openers of the bovines and flock. In addition, petter chamor shall be redeemed with a seh, but if you fail to redeem it, you must decapitate it. All the firstborn of your sons you shall redeem” (Shemos 34:19-20). Again, note here that, among the non-kosher animals, only donkeys are mentioned.

5. Parshas Bechukosai: “However, no one may declare the firstborn among the animals that are to Hashem with a different status of holiness — whether it is a calf or a seh, it belongs to Hashem” (Vayikra 27:26).

6. Parshas Bamidbar: “And behold, I have taken the levi’im from among the Benei Yisrael in lieu of each firstborn who opened the womb from the Benei Yisrael; the levi’im will be Mine. For every firstborn is Mine. On the day that I struck every firstborn in the land of Egypt I made holy to Me every firstborn in Israel, from man to animal. They are Mine, for I am Hashem” (Bamidbar 3:12-13).

7. Again in Parshas Bamidbar: “And Hashem spoke to Moshe saying: Take the levi’im in lieu of all the firstborn among the Benei Yisrael, and each animal of the levi’im in lieu of all their animals… and the redemptions of the 273 firstborn that there are more than there are levi’im, each should take five shekalim… and give it to Aharon and his sons as a redemption…” (Bamidbar 3:44-51).

8. Parshas Korach: “Every opener of the womb, among all flesh that is offered to Hashem, whether it is human or animal, shall be yours (i.e., to Aharon and his descendants). The firstborn among the humans should be redeemed, as well as the firstborn of the non-kosher animals. The redemption: from when he is a month old, you should redeem his value at five shekalim of silver, using the shekel of holy items – it is valued at twenty geirah. However, the firstborn calf or the firstborn lamb or the firstborn kid shall not be redeemed because it is holy; you shall throw its blood onto the altar and you shall burn its fat as a fire offering as a pleasant fragrance for Hashem” (Bamidbar 18:15-17). Note that this pasuk states, “firstborn of the non-kosher animals,” implying all non-kosher animals, not just donkeys.

9. Parshas Re’eih: “Every male firstborn that will be born to your cattle and your flock you shall sanctify to Hashem, your G-d. Do not work your firstborn ox and do not shear your firstborn flock. You shall eat it, you and your family, before Hashem, your G-d, each year in its year, in that very place that Hashem will choose. But should it have a blemish, such as it is lame or blind, any bad blemish – you shall not offer it to Hashem, your G-d. Instead, you shall eat it in your cities, whether you are tamei or tahor, just as [you eat] the antelope and the deer (Devarim 15:19-22).

10. Parshas Ki Seitzei: “He cannot provide the son of his beloved wife with the share of the firstborn instead of the firstborn son of the wife he loves less. He must recognize the firstborn son of the less loved wife who is the firstborn” (Devarim 21:16-17).

Other sources

In addition to these halachic sources, the Torah mentions the special status of the firstborn in many other places. For example, it emphasizes that Yishmael placed Yitzchak ahead of himself at Avraham’s funeral, notwithstanding that he, Yishmael, was firstborn (Bereishis 25:9). Chazal explain that this demonstrates that Yishmael had done teshuvah and recognized that Yitzchak was the more spiritually accomplished of the two.

Yaakov purchased from Esav his rights as firstborn (Bereishis 25:31-34); although they were twins born in the same childbirth, Eisav was the petter rechem.

Yosef assumed that his father will convey the greater intensity of his beracha on Menashe, his firstborn (Bereishis 48:13-19).

Petter chamor

At this point, let us examine the third of our opening questions: “What are the laws of pidyon petter chamor?”

There are two stages in performing the mitzvah of pidyon petter chamor, although they can be performed simultaneously. The two steps are (a) the redeeming and (b) the giving. In the redeeming step, the owner takes a lamb or kid (or other item worth as much as the donkey) and states that he is redeeming the donkey in exchange for the lamb, kid, or other item of value. Prior to making this statement, the owner recites a bracha, Asher ki’de’shanu bemitz’vosav vetzivanu al pidyon petter chamor (Tosafos, Bechoros 11a; Shulchan Aruch, Yoreh Deah 321:6). The owner has the right to decide to which kohein he gives the seh (see Rambam, Hilchos Bechoros 1:15). He then states that he is exchanging the seh or the other item for the kedusha of the donkey.

As soon as he performs this exchange, the sanctity is removed from the petter chamor and he may use the donkey (Mishnah, Bechoros 12b).

In the second step, the owner gives the seh (or the item exchanged for the donkey) to the kohein. No bracha is recited on this step of the mitzvah, and there is much discussion among halachic authorities why not (Taz, Yoreh Deah 321:7).

The two parts of this mitzvah are usually performed simultaneously by giving the seh to the kohein and telling him that this is redemption for the donkey.

Firstborn of the Levi

At this point, let us examine the last of our opening questions: Is a levi required to redeem his firstborn donkey?

The Mishnah teaches that the firstborn donkey of a kohein or of a levi is exempt from the mitzvah of pidyon petter chamor (Mishnah, Bechoros 3b). The Gemara (Bechoros 4a) derives this law from a hekeish, one of the hermeneutical rules whereby the laws of the Torah shebe’al peh, the Oral Torah, are included in the Torah shebiksav, the Written Torah. In this instance, the laws of pidyon haben are compared to those of pidyon petter chamor. There is no requirement to redeem a firstborn kohein or levi; similarly, there is no requirement to redeem a firstborn donkey that is owned by a kohein or a levi.

Non-Jewish ownership

The tanna’im dispute whether partial ownership by a non-Jew of the mother or the child of a kosher animal or donkey exempts the offspring from the status of bechor and petter chamor (Bechoros 2b-3a). The anonymous author of the Mishnah (Bechoros 2a, 13a, 16a) exempts these situations from the rule of bechor, whereas Rabbi Yehudah rules that the rule of bechor applies even when the Jew owns only a small part. The halachic conclusion follows the Mishnah that these animals are exempt (Tosafos, Bechoros 3b).

An additional dispute among the early amora’im (Bechoros 3a) concerns how much of the mother must be possessed by the non-Jew to create this exemption. Rav Chisda and Rava rule that the non-Jew must own enough that, were his part to be removed, the animal would be unable to live. Rav Huna disagrees, exempting the animal even if the non-Jew’s portion is as small as the animal’s ear. This is true, in his opinion, whenever removing the part owned by the non-Jew would render the animal into a ba’al mum, a blemished animal inappropriate as a korban. The halacha follows the lenient opinion (Tosafos 3b s. v. Deka). This is perhaps the most important aspect of the laws of bechor in today’s world, particularly for those who own livestock: performing a proper kinyan whereby a non-Jew owns part of the mother of any potential firstborn male lamb, kid or calf.

Why donkeys?

Why is there a special law requiring the redemption of petter rechem donkeys? Why is there no sanctity of firstborn camels, colts or elephant calves and no obligation to redeem them?

As I noted above, the Torah seems to contradict itself, in some places stating only that firstborn donkeys must be redeemed, whereas in others implying that this mitzvah applies to all firstborn non-kosher animals!

One answer provided to this question is that since all the firstborn animals owned by the Egyptians died, hundreds of thousands of firstborn camels, horses, dogs and cats also died. The Torah required redemption only for firstborn donkeys, making them the representative species for all the other non-kosher animals.

The Gemara (Bechoros 5b) states that this is to demonstrate our appreciation to the donkeys for assisting the Benei Yisrael upon our exiting Egypt. We left Egypt with massive amounts of booty, which were all packed on donkeys.

Appreciation of a donkey?

This is a bit strange. Does anyone think that a donkey appreciates that he has sanctity and therefore undergoes a redemption ceremony? He certainly does not appreciate it if someone refuses to redeem a donkey and beheads it instead. So, how does this demonstrate our hakaras hatov?

The answer is that our emphasizing the sanctity of donkeys in reward for the service they performed makes us realize the extent that we are required to have hakaras hatov. We owe this even to donkeys, notwithstanding that the chesed performed for us was so many thousands of years ago and that this particular donkey was certainly not involved! And we should certainly have hakaras hatov to Hashem, to our parents, teachers and all others who have helped us over the years.

For the continuation of our discussion on this topic, see “More on Bechor.”

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Did Dovid Accept Lashon Hora?

A Narrative of Biblical and Halachic Intrigue

The Gemara quotes the great Amora, Rav, as saying: “Because Dovid HaMelech believed lashon hora, the Jewish kingdom was divided, the Jews worshipped idols, and we were exiled from our land” (Shabbos 56b). What does this enigmatic statement mean? Can Rav possibly be blaming Dovid, the author of Tehillim, the founder of the Jewish royal family and the ancestor of Moshiach, for causing the Churban? In connection with the prohibition of lashon hora, found in this week’s parsha (Vayikra 19:16), we should try to understand the sequence of events that led to Rav’s comments.

THE STORY

After successfully vanquishing the enemies of the Jewish people and solidifying his monarchy, Dovid HaMelech wants to find out if there are any surviving descendants of his predecessor and father-in-law Shaul, who was slain in battle with the Pelishtim. Dovid calls Tziva, a slave who has been managing Shaul’s properties, and inquires whether Shaul has any surviving offspring. Tziva informs Dovid that Yonasan, Shaul’s crown prince and Dovid’s closest friend, is survived by a lame and unscholarly son named Mefiboshes (not to be confused with a different Mefiboshes who was Shaul’s son, an outstanding Torah scholar, and a rebbe of Dovid [Berachos 4a]). Dovid meets Mefiboshes ben Yonasan and discovers that he is actually a talmid chacham (Shemuel II 9:1-5; Rashi, Shabbos 56a s.v. bilo davar). Thus, Dovid could already discern that Tziva has a tendency to libel Mefiboshes.

Dovid invites Mefiboshes ben Yonasan to join his royal household and to take all his meals with them. In addition, he awards him with the formal ownership of all of Shaul’s properties, thus making Tziva and all of Shaul’s other slaves into Mefiboshes’ property. In a few moments, Mefiboshes has been returned to the wealth and honor appropriate to the royalty into which he was born.

Shortly thereafter, Dovid’s own fortunes take a dismal turn when his own son Avshalom instigates a rebellion, forcing Dovid and his supporters to flee for their lives from Yerushalayim as Avshalom’s forces seize the capital.

IS MEFIBOSHES A TRAITOR?

As Dovid flees Yerushalayim, Tziva arrives with a team of donkeys laden with provisions for Dovid’s men. In answer to Dovid’s inquiries about Mefiboshes’ whereabouts, Tziva responds: “Behold, he remains in Yerushalayim, saying that now the Bnei Yisroel will coronate me, the scion of the true royal family, as their king.” In other words, according to Tziva, Mefiboshes feels that the Jews would prefer to restore the house of Shaul to the throne and abandon the infighting of Dovid’s fratricidal family (Metzudos David, Shemuel II 16:3). In reaction to Tziva’s report of Mefiboshes’ treachery, Dovid awards Tziva the property of Shaul that he had previously given to Mefiboshes (Shemuel II16:1- 4). If Mefiboshes has indeed rebelled, Dovid has the legal right to confiscate his property (see Rashi, Shabbos 56a s.v. devarim).

Was it correct for Dovid to grant Shaul’s estate to Tziva?

Although Dovid has the right to be concerned that Tziva’s account of Mefiboshes’ actions might have some basis, the Gemara quotes a dispute (soon to be analyzed) whether he was permitted to assume the story to be true. Acting out of concern is permitted and is halachically termed being chosheish (suspecting) that a story may be true (Niddah 61a). One may react defensively to even an unsubstantiated story, in order to protect one’s interests in the event that the story is true. However, accepting the story as definitely true and following up on that assumption violates the laws of lashon hora. One may not take definitive action, such as seizing property, as a result.

Thus, accepting Tziva’s account without sufficient proof seems to violate two serious prohibitions: (1) betzedek tishpot amisecha, judging people favorably,and (2) kabbalas lashon hora, believing lashon hora!

These issues become even more difficult when we recall that Dovid had already experienced Tziva’s maligning of Mefiboshes in a previous conversation. This was when Tziva reported to Dovid that Mefiboshes was unscholarly, and Dovid consequently discovered that Mefiboshes was a talmid chacham of stature. Furthermore, we know that Tziva had ulterior motives to unseat Mefiboshes from his place of honor. So how could Dovid act as if Tziva’s story was certainly true?

Before trying to understand Dovid’s actions, we will return to the chronicle of Avshalom’s revolt.

AVSHALOM’S DEFEAT

For a while, it appears that Avshalom will indeed wrest power from his father and establish himself as king. However, Dovid’s forces decimate Avshalom’s troops in battle and Avshalom himself is ignominiously trapped. While riding a mule, his hair becomes tangled in the branches of a tree and he is left swaying above ground as his mule continues without him. Yoav, Dovid’s commanding general, and his entourage dispatch Avshalom while he is hanging in midair.

MEFIBOSHES APPEARS

Upon Dovid’s triumphant return to Yerushalayim, a very unkempt Mefiboshes welcomes him. He has not trimmed his mustache, washed his legs, nor laundered his clothes since Dovid fled Yerushalayim (Shemuel II 19:25, as explained by Targum).

Dovid asks Mefiboshes why he failed to join Dovid’s men in their flight from Yerushalayim (Shemuel II 19:25- 26). After all, since Mefiboshes had been eating daily at Dovid’s table, remaining behind when Avshalom assumes control could be highly dangerous! (Malbim ad loc.).

Mefiboshes replies: “My lord the king, my slave (Tziva) tricked me by telling me that he would saddle the donkey so that I could join the king – for I am lame; and he (Tziva) slandered me to my lord the king. But My lord the king is as an angel of G-d, and should do as he sees fit. For all the members of my father’s household were guilty of the death penalty (for crimes we performed in Shaul’s service), yet you honored me to dine at your table. What right do I have to ever complain to the king?” (Shemuel II19:27- 29)

MEFIBOSHES’ LEGAL DEFENSE

Dovid is faced with a puzzling dilemma: If Tziva is correct, Mefiboshes is an ungrateful, scheming traitor. If Mefiboshes is correct, Tziva is the worst type of slanderer. One of them certainly deserves punishment; the question is which? Dovid is in the unenviable position of trying to determine which of them is guilty. Is there any way to resolve this dilemma?

Does circumstantial evidence imply who is guilty? Let us examine:

1. Although Mefiboshes’ alibi seems reasonable, certain aspects of it are weak. For one thing, it does not explain his untidy appearance when he came to greet Dovid. How could he appear before the king without first bathing, trimming his mustache and washing his clothes! Although he claimed to still be mourning Dovid’s flight from Yerushalayim, he should have tidied himself in Dovid’s honor. Not doing so implies that he is mourning Dovid’s successful return! (Rashi, Shabbos 56a s.v. devarim).

2. When questioned by Dovid as to why he remained in Yerushalayim under Avshalom, Mefiboshes responds, “My slave tricked me by telling me that he would saddle the donkey so that I could join the king – for I am lame. And he (Tziva) slandered me to my lord the king.” Granted that Tziva tricked Mefiboshes and took the donkeys with him, but how could Mefiboshes know that Tziva has been slandering him? If Mefiboshes was indeed abandoned in Yerushalayim when Tziva took the mounts, he would have no idea what transpired after that point (Binayahu). Unless, of course, he actually had done or said something scandalous in Tziva’s presence…

Although the evidence against Mefiboshes is not ironclad, it does leave a dissatisfying sense that he is not telling the whole story. Later in the article, I will present another piece of evidence against Mefiboshes.

DOVID’S RULING

Who should Dovid believe? Either Tziva is telling the truth, in which case Mefiboshes is a traitor and should certainly not be granted ownership of his late grandfather’s property, or Tziva is lying, in which case he is a lowlife and should certainly not be granted any new properties as reward!

What does Dovid do? He announces that Mefiboshes and Tziva should divide Shaul’s estate!

It is difficult to comprehend why Dovid divided the property between them.

TALMUDIC INSIGHTS

At this point, we will study the Gemara’s comments on this enigmatic story. The Gemara cites a dispute between Rav and Shemuel concerning Dovid’s actions. Rav states that Dovid violated the Torah’s prohibition of believing lashon hora, whereas Shemuel protests that Dovid was innocent (Shabbos 56a).

Why does Shemuel consider Dovid innocent? Does not confiscating the property show that he assumed Mefiboshes guilty without proof, which constitutes believing lashon hora?

Shemuel explains that Dovid had adequate anecdotal verification (devarim hanikarim) indicting Mefiboshes for treason. Although this is not evidence that a beis din could use for a ruling, since Dovid was judging as a king, and not as a beis din, he could base his decision on substantive circumstantial evidence (Be’er Mayim Chayim, Hilchos Lashon Hora 7:22).

There is a difficulty with this approach: If indeed Dovid was justified to consider Mefiboshes guilty, why did he divide the properties between Tziva and Mefiboshes. If Mefiboshes is guilty, Dovid should confiscate all the property, and if Mefiboshes is innocent, he (Mefiboshes) should keep it all. What does Dovid accomplish by depriving him of half and awarding it to Tziva?

The Maharsha offers an original approach to resolve this conundrum. Although Dovid felt his evidence against Mefiboshes was sufficient, he realized that he would never be able to prove absolutely whether Mefiboshes was a treacherous schemer or not. Therefore, Dovid treated the case as an unresolved issue — and divided the property between the two parties, knowing that one of them was receiving a highly undeserved reward.

The Maharsha then continues by explaining the next passage of this Gemara: When Dovid informed Mefiboshes that he was being deprived of half the estate, Mefiboshes reacted with tremendous fury, saying, “I just finished telling you that I was eagerly awaiting your return to the city in peace, and this is how you treat me? My complaints are not against you as much as they are against He who returned you in peace!”

The Maharsha concludes that Mefiboshes’ sacrilegious outburst sealed Dovid’s decision, demonstrating that Mefiboshes was not as faithful as he claimed. If he had been mourning Dovid’s flight, his happiness at seeing Dovid restored to his throne should have been great enough not to criticize Dovid for any wrongdoing. Indeed his outburst demonstrates that Tziva was indeed correct and that Mefiboshes was simply performing lip service.

(This last approach presents us with an unresolved problem. Dovid had already divided the estate between Mefiboshes and Tziva. If he now had further evidence of Mefiboshes’ treachery, why did he not therefore award the entire estate to Tziva? There are several possible ways one can attempt to resolve this difficulty.)

A DISPUTING OPINION

Until now, I have presented Shemuel’s approach that Dovid did not violate the laws of lashon hora. Rav disagrees, contending that Dovid violated halacha by accepting Tziva’s story; Dovid had no right to assume that Mefiboshes had done anything wrong and he therefore should not have confiscated any property.

HALACHIC QUESTION

There are two ways to explain Rav’s position, with a major halachic difference between them.

(1) Rav disagrees with the entire principle of accepting lashon hora when one has adequate circumstantial evidence.

(2) Rav accepts this principle, but disputes its application in this case. He feels that Dovid “convicted” Mefiboshes without sufficient evidence – thus violating the prohibition against accepting lashon hora.

Which of these two approaches is correct? Can we accept circumstantial evidence in halacha, or does this violate the laws of lashon hora?

This question concerns not only a judge or king, but also often affects each one of us. May we assume that someone we see behaving wrongly has indeed sinned, when the evidence indicates this, or do the mitzvos of judging favorably and not accepting lashon hora require positive evaluation even under these circumstances?

Many authorities conclude that if one sees absolutely convincing, circumstantial evidence one may assume that it is true (Sefer Yerayim #192; Smag, Lo Saaseh #10; Hagahos Maimoniyos, Dei’os 7:4; Magen Avraham 156:2). Others contend that we may not judge someone unfavorably unless we know for certain that he sinned, and one may never rely on circumstantial evidence to believe lashon hora (Menoras HaMaor, Lashon hora Chapter 18; Bris Moshe commentary to Smag, Lo Saaseh 10:5, explaining Rambam).

According to either interpretation of Rav’s opinion, Dovid should have rejected Mefiboshes’ guilt, and therefore confiscating his property was unjustified. Consequently, the division of Dovid’s royal legacy, the Jewish monarchy, was a personal punishment for Dovid. As we know, ten of the twelve tribes seceded from Dovid’s grandson, King Rechavam. The king appointed by the break-off tribes, Yeravam, later became concerned that his people might make pilgrimages to the Beis HaMikdash, and therefore established temples in his realm as alternative worship centers (Melachim I 12:28; note that the commentaries there dispute whether these temples were initially avodah zarah or only became avodah zarah later). Although this idolatry initially affected only the ten northern tribes, its nefarious influence ultimately spread to the two southern tribes of Yehudah and Binyomin. Eventually, this idol worship caused the destruction of the Beis HaMikdash, as Rav concludes in his statement:

“At the moment that Dovid said, ‘You and Tziva shall divide the property,’ a heavenly voice told him, ‘Rechavam and Yeravam will divide the monarchy’… Had Dovid not accepted the lashon hora, Dovid’s royal monarchy would never have been divided, the Jews would never have worshipped idols, and we would never have been exiled from our land.”

This quotation reflects Rav’s opinion. As mentioned above, Shemuel contends that Dovid was correct and that Rav’s blaming Dovid’s for the resulting tragedies is unfounded.

What lessons do we learn from this tragedy? On a halachic level, Shemuel derives from this discussion that when there are devarim hanikarim, strong circumstantial evidence, there is no requirement to judge someone favorably. From Rav’s perspective, we derive an almost opposite lesson: although Dovid certainly felt he has sufficient basis to “convict” Mefiboshes, he erred, and his error, albeit only a negligent mistake, caused terrible results.

We all know the enmity that believing lashon hora can cause. If we all emphasize judging one’s fellowman favorably, we will certainly assist the reconstruction of the house of Dovid in Yerushalayim!

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Pesach Sheini II

Question #1: Pesach Sheini or Bahav?

Do we recite the selichos of bahav when it coincides with pesach sheini?”

Question #2: Bar mitzvah

Is someone who turned bar mitzvah after the 14th of Nisan obligated to offer the korban pesach on the 14th of Iyar, notwithstanding that he was included in a korban pesach on the 14th of Nisan?

Question #3: Out of sight

How far from the Beis Hamikdash does one need to be in order to be exempt from offering the korban pesach?

Foreword:

In some years, the 14th of Iyar, Pesach Sheini falls on the day that most Ashkenazim observe as the second Monday of bahav. These are three days of selichos that Ashkenazim traditionally observe during the months of Marcheshvan and Iyar. Originally these were fast days and are still kept as such by many individuals. Bahav (or bahab) is in Hebrew ב, ה, ב, and stands for Monday, Thursday, Monday.

What do communities to when Pesach Sheini falls on bahav? There is a very diverse variety of minhag practices. Some communities observe bahav, reciting selichos, avinu malkeinu and tachanun. Others omit tachanun because it is Pesach Sheini and therefore do not recite selichos or avinu malkeinu. This includes some who observe bahav otherwise — in other words, they observe only 2/3 of bahav because of Pesach Sheini. Still others observe both bahav and Pesach Sheini during the same tefillah by reciting the beginning of the traditional selichos, stopping in the middle and saying half kaddish, thereby omitting both tachanun and avinu malkeinu. (Those who recite the selichos in the middle of the shemoneh esrei of the chazzan follow a slightly different procedure.) The purpose of this article is not to paskin for any individual or community. Each should follow its own custom, and if there is any question what to do, should ask its rav or posek.

Pesach Sheini or Behav?

At this point, we can already answer our opening question: “Do we recite selichos of Behav when it coincides with Pesach Sheini?”

The answer is a definitive “it depends.”

Introduction

This article will explain the Torah’s mitzvah of pesach sheini, offering and eating the korban pesach on the 14th of Iyar. This is the day that the korban pesach is offered by those who missed bringing it a month earlier.

Note: To avoid confusion, throughout the rest of this article the holiday of Pesach will be capitalized, whereas the pesach offerings will be spelled lowercase (except when the word begins a sentence or a heading).

Someone who was ill on Sukkos and could not fulfill the mitzvah of sukkah cannot observe the mitzvah a month later after he recovers, nor does someone who was unable to fast on Yom Kippur have a second chance during the year. But the Torah teaches: “And Hashem spoke to Moshe in the Sinai Desert in the second year of their leaving the land of Egypt, in the first month [Nisan], saying: ‘The Bnei Yisroel shall offer the pesach in its correct time, on the 14th of this month, in the afternoon… They shall prepare it following all its laws and ordnances… (Bamidbar 9, 1-7).’” Further, Hashem instructs that an individual who was tamei or at a distance and unable to offer the korban pesach is commanded to offer it during the second month, Iyar, on the afternoon of the 14th. “It should be eaten together with matzos and bitter herbs. It should not be left over until morning, nor should any bone be broken; they should prepare it like all the laws of the pesach” (ibid. 11-12).

An interesting point is that the Torah appears to compare the details of offering pesach sheini to the korban pesach usually offered on the 14th of Nisan, yet the Torah never teaches how to observe the regular korban pesach. The only other description of the korban pesach in the Torah is when the Jews were still in Egypt, called Pesach Mitzrayim, and not all of the laws of that korban pesach are applicable when offering korban pesach on the 14th of Nisan after the Jews exited Egypt. For example, there was no requirement to observe Yom Tov in Egypt, nor was there any prohibition against owning or eating chometz.

What if you don’t?

The Mishnah states that anyone who missed offering korban pesach on the 14th of Nisan can offer it on Pesach Sheini instead. Then it asks, if this is so, why does the Torah single out those who missed offering the korban pesach because they were tamei or at a distance? Why not simply say that anyone who missed pesach rishon can observe pesach sheini? The Mishnah answers that there is a major difference between those who missed pesach rishon because they were tamei or at a distance and those who missed it because they deliberately didn’t offer it. The first category of people are exempt from the severe punishment of kareis that is received by someone who intentionally does not offer a korban pesach. Those who missed pesach rishon because they were tamei or at a distance, and then failed to offer pesach sheini are exempt from chiyuv kareis, even if they intentionally did not offer pesach sheini, as we will explain shortly. However, according to some tanna’im, someone who forgot about pesach rishon and then intentionally did not offer pesach sheini will be chayov kareis.

This last question is dependent on the following three-way dispute among the tanna’im concerning the relationship between the two mitzvos of pesach rishon and pesach sheini (Tosefta, Pesachim Chapter 8; Pesachim 93a).

1. Rabbi Yehudah Hanasi (also known simply as “Rebbi”) understands that these are two independent mitzvos, each containing its own chiyuv kareis for violation. In other words, someone who intentionally did not offer the korban pesach rishon and then did not offer the pesach sheini because of circumstances beyond his control is chayov kareis for not offering pesach rishon. Similarly, someone who could not offer pesach rishon because of circumstances beyond his control and intentionally did not offer pesach sheini is chayov kareis. This is because although he was anus for not offering pesach rishon, his violation of pesach sheini is a separate responsibility incumbent on those who did not offer pesach rishon that carries its own chiyuv kareis. (For reasons that I will not discuss in this article, there are two exceptions to these rules. The two instances that the Torah describes, someone who was tamei and therefore not allowed to offer pesach rishon and someone who was “at a distance” and therefore unable to make it to the Beis Hamikdash to offer his pesach rishon are not chayov kareis for missing pesach sheini, although they are both obligated to korban pesach on the 14th of Iyar.) The Gemara refers to this opinion as “the two times to offer the korban pesach are each a yom tov by themselves.” In other words, failure to offer the korban pesach intentionally can make one culpable of kareis, whether the intention was to miss the first korban pesach or the second.

2. Rabbi Noson understands that the mitzvah of pesach sheini is considered a repayment for not offering korban pesach when he was supposed to, but does not absolve the sinner of his chiyuv kareis. This has several ramifications:

A. Someone who was negligent and missed the korban pesach on Pesach Rishon because of circumstances beyond his control is exempt from the chiyuv kareis, regardless as to whether he brings or does not bring pesach sheini. He has a mitzvah to bring pesach sheini but failure to do so will not create a chiyuv kareis on him. This approach disagrees with Rebbi, who contends that should he fail to offer pesach sheini intentionally he is chayov kareis for violating pesach sheini, as I explained above.

B. Someone who intentionally did not bring korban pesach on Pesach Rishon is chayov kareis regardless as to whether he offered pesach sheini. He has a mitzvah to bring pesach sheini, but doing so does not release him from his chiyuv kareis – only sincere and complete teshuvah will accomplish that.

C. There is a third case in which Rebbi (the author of the first opinion) and Rabbi Nosson disagree: a geir tzedek who converted to Judaism between the 15th of Nisan and the 14th of Iyar. According to Rebbi, he is obligated to offer pesach sheini since it is an independent requirement incumbent on anyone who has not yet offered korban pesach this year. According to Rabbi Noson, he is exempt from pesach sheini since he was not obligated to offer korban pesach on pesach rishon. The same halacha is true concerning a presumably more common case: a boy who turned bar mitzvah between the 15th of Nisan and the 14th of Iyar. According to Rebbi, he is obligated to offer pesach sheini since it is an independent requirement incumbent on anyone who has not yet offered korban pesach this year, which he could not observe as an adult. According to Rabbi Noson, he is exempt from pesach sheini since he was not yet obligated to offer korban pesach on Pesach Rishon.

3. The third tanna in this dispute, Rabbi Chananya ben Akavyah, contends that pesach sheini rectifies the sin of violating pesach rishon. In practice this means that someone is chayov kareis only if he intentionally violated both pesach rishon and pesach sheini. Even if he did not bring any korban pesach this year, intentionally on either Pesach Rishon orPesach Sheini, but negligently on the other, he is exempt from chiyuv kareis, although he of course violated two mitzvos aseih, one intentionally and one negligently.

Although the Gemara does not mention how Rabbi Chananya ben Akavyah holds regarding a geir tzedek who converted to Judaism or someone who turned bar mitzvah between the 15th of Nisan and the 14th of Iyar, it would seem that he holds like Rabbi Noson — he is exempt from pesach sheini since he was not obligated to offer korban pesach on Pesach Rishon (see Ra’avad and Lechem Mishneh, Hilchos Korban Pesach 5:2).

At this point, we have the answer to our second question: Is someone who turned bar mitzvah after Pesach Rishon obligated to offer pesach sheini, notwithstanding that he was included in a korban pesach on Pesach Rishon? The answer is that the Gemara tells us that this is a dispute among tanna’im.

Out of sight?

We now discuss the third of our opening questions: “How far from the Beis Hamikdash does one need to be in order to be exempt from offering korban pesach?”

When the Torah says that someone was “distant” from the Mishkan or the Beis Hamikdash and therefore could not offer the korban pesach, how far were they from the Beis Hamikdash to be included in this exemption? The Mishnah (Pesachim 93b) notes that the tanna’im dispute what are the parameters of this law. Rabbi Akiva contends that someone is exempt from offering the korban pesach only if he spent the entire Erev Pesach afternoon (see statement of the amora Ulla, Pesachim 93b) in a place that was too distant for him to get to the Beis Hamikdash that day. Since the Mishnah is describing someone who could not use a motorized vehicle to arrive in Yerushalayim, this distance is measured as from the town of Modi’im or the equivalent distance in any other direction. This is far enough away that it would take him more than half a day to walk from where he is to the Beis Hamikdash. Apparently, halacha does not factor in speedier methods of transportation such as horse, camel, donkey or automobile.

On the other hand, Rabbi Eliezer and Rabbi Yosi rule that saying someone was at a distance from the Beis Hamikdash and therefore could not offer the korban pesach is an exaggerated statement. If he never entered the Beis Hamikdash grounds the entire afternoon of Erev Pesach, he is exempt from the punishment of kareis for missing the offering of korban pesach. He has a mitzvas aseih to offer pesach sheini, but he is not chayov kareis if he fails to do so.

But not out of mind…

The Torah states that someone who was “at a distance and unable to offer the korban pesach” could bring a makeup korban on Pesach Sheini. The question is debated in the Gemara whether he could possibly fulfill pesach rishon by having other people include him in their korban pesach. As we know, each individual needed to be counted as a member of a korban pesach, but does that require him to be in the proximity of the mikdash? As the Gemara expresses it, “He was at a distance from the Beis Hamikdash and others had their korban pesach shechted and sprinkled with him in mind, Rav Nachman rules that he fulfilled his responsibility to offer the korban pesach, whereas Rav Sheishes rules that he did not.” The Rambam paskins according to Rav Sheishes that he did not fulfill his obligation and he is obligated to bring pesach sheini (Rambam, Hilchos Korban Pesach 5:3). The Kesef Mishneh and others explain that the halacha follows Rav Sheishes over Rav Nachman when we are dealing with matters of issur ve’heter, rather than financial cases in which we always rule according to Rav Nachman.

Why is this night different?

The Mishnah (Pesachim 95a) states: “What are the halachic differences between pesach rishon [the korban pesach offered on Erev Pesach] and that offered on Pesach Sheini? Bal yeira’eh and bal yimatzei [the prohibitions against owning chometz] apply to pesach rishon, whereas, when observing Pesach Sheini, he can have chometz and matzah together in his house. Pesach rishon requires the recital of Hallel during the time that one is eating the korban pesach, whereas pesach sheini does not. Both pesach rishon and pesach sheini require the recital of Hallel while preparing it, and are eaten roasted and together with matzah and bitter herbs. If the 14th falls on Shabbos, their shechitah and other steps required in offering them supersede Shabbos.”

In explaining the halachic differences between pesach rishon and pesach sheini, the Gemara returns us to the pesukim in Bamidbar 9 that we quoted above. The Torah states that the korban of Pesach Sheini should be brought kechol chukos hapesach, “like all the laws of the pesach.” The Gemara, then, is curious as to why the posuk finds it necessary to mention specifically:

(1) That pesach sheini should be eaten together with matzah and marror

(2) That no bone of the korban pesach sheini may be broken

(3) That the pesach sheini should be consumed during the night and not left uneaten until morning.

Are these not three laws that apply to the first korban pesach?

The Gemara concludes that mentioning of these laws teaches us that certain mitzvos related to the korban pesach itself, such as the requirement to roast it and eat it in one place, apply to pesach sheini, even though they are not mentioned specifically in the Torah. On the other hand, other mitzvos that are not directly part of the korban pesach, such as the requirement to dispose of all of one’s chometz before offering the korban pesach, apply only to a korban pesach offered on the 14th of Nisan and not to pesach sheini.

More on pesach sheini

How else is pesach sheini different from pesach rishon? When the korban pesach is offered on the 14th of Nisan, the Mishnah describes that the first and largest group of people entered to offer their korban and then the gates were closed, prohibiting entry to those who did not arrive on time to be part of this group. When the first group finished offering korban pesach, the gates were opened, allowing a second group to enter and offer their korban. Only when this group completed offering their korban pesach were the gates opened for a third group. The pesach rishon was always offered in three consecutive groups, and only three such groups. This is a requirement that the Gemara derives from the Torah.

Regarding pesach sheini, the Tosefta (Pesachim Chapter 8) notes that there is no requirement to divide those who offer it into three groups.

Similarities

On the other hand, there are other ways, not mentioned in the Torah, in which pesach sheini has similar laws to pesach rishon. Both require that you stay overnight in Yerushalayim until the following morning, the 15th, after offering their korban, a mitzvah called linah (Pesachim 95b). Both korbanos pesach rishon and sheini are offered on the afternoon of the 14th of the month, even when it falls on Shabbos (Pesachim 95b).

As the Rambam and others explain, all the laws regarding when and how the korban pesach is eaten — that it cannot be eaten until night, how it must be roasted directly in fire (which means it must be barbecued whole on a spit that is made from pomegranate wood and not, for example, on a metal spit that would apply the fire’s heat indirectly), and that it should be eaten with a hearty appetite (Rambam, Hilchos Korban Pesach 8:3-4) — apply equally to pesach rishon and sheini.

Conclusion

Observing Pesach Sheini involves many laws of the korban pesach, but not the laws of the Pesach holiday, an interesting combination. On the other hand, in a completely opposite way, we have become accustomed to keeping Pesach without its unique korban; which is perhaps the most central of the observances of Pesach. It is so significant that the men who were tamei and could therefore not be part of the communal korban pesach realized that they were deprived of a basic mitzvah observance. They understood its importance, and, in their honor, we were taught that there is a make-up date a month later, something unique among mitzvos, and this can even supersede Shabbos. We hope and pray to bring korban pesach quickly, bimheira biyameinu.

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Four of Rabbi Yishmael’s Principles

Davar shehayah bichlal veyatza

Question #1: Lelameid al haklal kulo yatza — to teach about the entire category

Aside from being a major mouthful, what does the following statement mean? Davar shehayah bichlal veyatza min haklal lelameid, lo lelameid al atzmo yatza ela lelameid al haklal kulo yatza, “That which was part of a category and was specified to teach, not to teach for itself was it specified but to teach about the entire category.”

Question #2: Melachos of Shabbos

Are the 39 melachos treated like 39 different mitzvos?

Question #3: Davar shehayah bichlal veyatza

In Rabbi Yishmael’s passage, he mentions four middos (numbers 8-11) that begin with: Davar shehaya bichlal veyatza, followed by distinctions that are difficult to understand for most readers. What do these middos mean?

Introduction

Prior to the kaddish derabbanan closing the korbanos section, we enumerate the thirteen middos of Rabbi Yishmael, a listing of methods whereby the laws of the Torah shebe’al peh are derived from the Written Torah (see also Sanhedrin 86a). Without these rules of interpretation, there would be a greater chance that the laws of the Torah shebe’al peh might be forgotten, and it would also be more difficult to apply halacha to new situations and questions that develop. These are some of the advantages of the system of these thirteen rules that we were taught via mesorah from Moshe Rabbeinu at Har Sinai.

Davar shehayah bichlal veyatza

At this point, I will address my opening question: “What does the following statement mean? Davar shehayah bichlal veyatza min haklal lelameid, lo lelameid al atzmo yatza ela lelameid al haklal kulo yatza, ‘That which was part of a category and was specified to teach, not to teach for itself was it specified but to teach about the entire category?’” In other words, a case that was included in a category and is then singled out for a new teaching, it is not singled out to teach the new law only regarding itself. Rather, the new law applies to everything in its original category.

Notwithstanding the rather cumbersome title, this eighth rule of Rabbi Yishmael is actually fairly straightforward. In one place in the Torah, a group of similar mitzvos or items used for a mitzvah are listed. In a different place in the Torah, a new law is taught and only one example from the first list is mentioned. The rule teaches that the halacha applies to all cases in the first list.

The Toras Kohanim itself provides the following example to explain this rule. After teaching us concerning the various offerings brought in the Beis Hamikdash, the Torah concludes by saying: “This is the law for olah (offerings burnt on the altar in their entirety except for the hide), for mincha (grain offerings), for chatas and asham (both offerings brought as atonement for different types of sins), for miluim (offered when the Mishkan was dedicated) and for shelamim offerings (offerings from which the owner and the kohanim eat most of the meat) [Vayikra 7:37].” In a different place (Vayikra 7:20), the Torah teaches that someone who is tamei when he eats meat from the korban shelamim will receive the punishment of kareis. Thus, the Torah mentions only shelamim when it introduces this new law. Because of rule #8, we understand that the punishment of kareis applies to a person who is tamei and eats from any of the other korbanos included in the listing of Vayikra 7:37, but not if he eats something else (see also Yevamos 7a; Kerisus 2b). An example of something excluded from the new law is kodashei bedek habayis, something declared to be property of the Beis Hamikdash, which is sold and its received value is used to pay for repairs and upkeep of the Beis Hamikdash grounds. Although it is prohibited min haTorah to eat from an item that was declared property of the Beis Hamikdash, someone who eats it when he is tamei is not culpable of kareis.

There are numerous applications of this rule in all sorts of types of laws. For example, the halacha that we are not required to eat matzah after the first night of Pesach is derived via this rule (Pesachim 120a). Also, the requirement to bring nesachim (wine offerings) alongside korbanos olah and shelamim, but not alongside asham and chatas, is derived by an application of this rule (Sifrei, Bamidbar 15:3). The fact that the lo saaseh prohibiting making parts of grain korbanos into chometz applies to all stages of the korban’s production is similarly derived from an application of this rule (Menachos 55b).

Here is another example: The Torah states in several places that we are not to perform any melacha on Shabbos. As we derive from several sources, the definition of a melacha is one of the 39 categories of work that were performed in the construction of the Mishkan. Yet, the Torah specifically states independently, lo seva’aru eish bechol moshevoseichem beyom haShabbos, “Do not kindle fire anywhere that you reside on the Shabbos day” (Shemos 35:3). Kindling fire is one of the 39 melachos; therefore, it is included under the general prohibition not to do melacha on Shabbos. If so, why does the Torah need to mention it separately as its own prohibition? This is to teach us that this melacha, on its own, is treated with all the stringencies of melacha. But this answer only begs the question; what is being added to the prohibition of violating Shabbos by having hav’arah, kindling, mentioned specifically?

The halachic conclusion is that this pasuk teaches that hav’arah should be treated as if it was one of the 613 mitzvos and not simply as a category of melachos Shabbos. But since hav’arah is one of the many other melachos that are all included under the heading of melacha, applying rule #8 teaches that each of the 39 melachos is treated as if it is an independent mitzvah of the 613.

What difference does this make? A vast difference. Someone who performs melacha on Shabbos negligently is obligated to offer a korban chatas as atonement for his sin.

Unfortunately, we do not have a Beis Hamikdash today, but when the Beis Hamikdash is iy”H rebuilt, very soon, he will be required to bring a korban chatas. This law is true regarding negligent violation of almost any prohibition for which violating it intentionally brings the punishment of kareis. Whoever violates negligently a potential kareis prohibition must offer a korban chatas.

However, someone who violates the same prohibition many times because he was unaware that what he was doing was against the Torah does not require repeated korbanos chatas, but only one korban chatas.

Now, what is the law concerning someone who violated negligently several different melachos on Shabbos? Since the Torah states, lo seva’aru eish bechol moshevoseichem beyom haShabbos, we derive that all 39 melachos are treated as if they are separate Torah prohibitions. The ramification of this ruling is that someone who violated negligently several different melachos will be obligated to bring a korban chatas for each melacha that he has violated (Shabbos 70a)! We have now explained the second of our opening questions:Are the 39 melachos treated as 39 different mitzvos?

Principles 9-11

At this point, I will explain the next three principles together, since doing so will make it easier. In each of these cases, the interpretation of how the principle is applied depends on how the law that was part of a category and was specified outside that category is different from the laws with which we are already familiar from the category.

Principle #9: Davar shehaya bichlal veyatza lit’on to’an echad shehu che’inyano, yatza lehakeil velo lechachmir. The new case is not noticeably different from an already known case, yet rules that would make this case completely similar to the already known case are omitted.

When nothing new is mentioned, but some halachos are simply omitted, we derive only lenient rulings.

Principle #10: Davar shehaya bichlal veyatza lit’on to’an acheir shelo che’inyano, yatza lehakeil ulehachmir.

The halachic difference in the new case appears to be the opposite of what we would have expected based on the already known case. When the new case includes a ruling that contradicts what we knew previously, we derive both strict and lenient rulings.

Principle #11: Davar shehaya bichlal veyatza bedavar heh’chodosh, iy atah yochol lehachziro lichlalo ad she’yachazeerena hakosuv lichlalo befeirush.

The new case introduces a completely new innovation that was unheard of in any previous application. We do not apply rulings from the original category unless and until the Torah tells us that the new case is still part of that category.

I will now demonstrate applications of each of these three rules:

Principle #9 applied:

All types of tzara’as are divided into two general categories: musgar, a tumah that is temporary, and muchlat, a tumah that remains until the symptoms of tzara’as disappear or the tamei item is destroyed. Usually, musgar can be tamei for up to two weeks (actually thirteen days, because the seventh day of the first week is also the first day of the second week), after which, if no new symptoms develop, the person or garment undergoes immersion in a mikveh or spring and becomes completely tahor at the next nightfall. (In the case of a house, it undergoes a different procedure.) A muchlat could remain tamei forever, and the procedure for becoming tahor after being muchlat is far more expensive, more complicated and is considerably longer to perform than becoming tahor after being musgar. In the case of nega’im on clothing and houses, the status of muchlat will eventually require burning the clothing or razing the house.

For most types of nega’im on a person, there are three symptoms that can make a metzora muchlat:

(1) The tzara’as spreads.

(2) Two dark or other non-white hairs within the nega turn white.

(3) There is a healthy-looking area of skin with a certain minimal size inside of the white nega.

The Torah presents the case of nega’im on healthy skin and its rules and then teaches of nega’im on injured skin, which seem to be the same as the laws of regular nega’im, except:

(A) Whereas regarding other nega’im, the Torah refers to two consecutive weeks of when someone can potentially be a musgar, regarding a nega on injured skin it mentions only being musgar for one week.

(B) There is no mention of healthy skin inside the nega being a sign of muchlat.

Now we can understand how the 9th Principle applies: “Something that became an exception with a detail that fits its general topic teaches lenience but not strictness.” No striking new rules were taught regarding the nega’im on injured skin; simply some details that apply to other nega’im are missing. Therefore, no strict rules that apply to other nega’im apply here unless the Torah specifically mentions them, but lenient rules do apply. As a result of the 9th Principle, a nega on injured skin will never require a second week of musgar;if the signs of the nega are unchanged after seven days, the nega is ruled tahor and requires only immersion. Similarly, healthy-looking skin within a white nega on injured skin is not a sign that it is tamei.

Principle #10 applied:

This is where a case seems to be part of a general rule, but a halachic detail is dissimilar from the laws that apply to the cases of the general rule. In this situation, the new case may have some laws that are stricter and others that are more lenient than the previous known general rule.

As an example, the Toras Kohanim picks another case from the laws of tzara’as. A blond hair has no halachic significance to a regular nega or to any other rules of tzara’as on the body. Yet the Torah gave it much significance regarding a nega on the scalp or face. As mentioned above, a nega that develops two white hairs renders the afflicted person muchlat. Later, when discussing tzara’as found on the scalp or face, the Torah teaches that a blond hair is a sign of tumah (Vayikra 13:30). This example is virtually the opposite from the general rule of negaim on the body, in which white hair, not blond hair, renders it tamei. The Toras Kohanim explains that the 10th principle of Rabbi Yishmael teaches that this case has both lenient and stringent ramifications: a white hair on the scalp or face does not make him muchlat, but a blond hair does.

Principle #11 applied

Something that is part of a general rule but that has a novel detail is no longer considered part of the original category until the Torah explicitly returns it to that category. What does this mean and how is it different from the previous principle (Ra’avad; Halichos Olam; Shlah)? Principle #11 discusses a case which has laws completely dissimilar from the typical experience with these laws.

Here is an example: Every korban, including the asham, must have its blood received into a vessel. However, the law of the korban asham of a metzora includes a ruling that is very different from any other korban. Some of theblood of the korban asham of the metzora is caught by a kohein in his right hand! This striking difference implies that we should not derive any halachos concerning this asham from the laws of other korbanos asham unless the Torah teaches us to do so (see also Zevachim 49a; Sifrei, Bamidbar 6:20, end of piska 37; Malbim #134).

Another example: When teaching what parts of a korban shelamim sheep are burnt on the mizbei’ach, the Torah (Vayikra 3:9) adds the alyah, a fat tail unique to Mid-Eastern sheep. (You won’t find it on American sheep – they have scrawny tails.) Once this detail has been taught regarding this variety of korban shelamim, the Torah needs to teach that the other laws of shelamim are identical, whether it is a sheep, cattle or a goat.

A third example of this rule is that the shelamim offering of the nazir has a special law that its right forearm is cooked before the rest of the korban is offered (Bamidbar 6:19). Once this distinction has been made, we would not apply the other laws of shelamim to this korban until we have a halachic source to do so (Pesikta Zutrasa, Vayikra 3:10).

Conclusion

When the Gemara tells us that the teachings of the rabbonim are dearer to Hashem than the laws of the Torah, it certainly includes the vast halachic literature devoted to understanding the thirteen middos. The Gemara expresses this notion by saying that what is derived from a drasha is more cherished even than the Written Torah (Yevamos 2b; 3a; see also Ritva and Aruch Laneir, Makkos 13a; Maharam Lublin, Bava Kamma 17b). To quote Rav Chaggai in the name of Rav Shmuel bar Nachman: “Torah refers to that which is taught in the Oral Torah and that which is taught in the Written Torah, yet we do not know which is more cherished. When the pasuk states, ‘according to these words I sealed the treaty with you and with Yisrael’ (Yirmiyahu 33:25), this teaches us that the Oral Torah is more dear” (Yerushalmi, Peah 2:4).

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Is Civet Coffee Kosher?

Question #1: Civets?

Is civet coffee kosher?

Question #2: Elephants?

Is Black Ivory coffee kosher?

Question #3: Tza’ar ba’alei chayim

Is it permitted to catch these species in order to use them for coffee production?

Question #4: Birds?

What is the difference between “bird coffee” and “bird friendly coffee?”

Introduction

Among the non-kosher smaller mammals that Noach brought into his teivah was a southeast Asian creature called a civet that has been described as looking like a cross between a cat and a mongoose. Our article will discuss the kashrus issues involved in several new varieties of gourmet coffee that involve civets, elephants and other non-kosher animals.

Foreword

Hailed as “the most exotic beverage on the planet,” civet coffee, also known as kopi luwak, is a delicacy, a unique coffee made from coffee cherries (also called “berries”) that pass through the gut of the civet before being brewed. It is described as smooth and chocolaty, with a subtle taste of caramel. One of the most pronounced characteristics of kopi luwak beans is their natural lack of acid bitterness. They have been discovered to be low in both tannin and acid. Furthermore, it is claimed that they contain a plethora of other health advantages not found in other coffees.

Kopi is the word for “coffee” and luwak is the name for the civet in the local Indonesian language where this “delicacy” was discovered.

The civet loves coffee berries, but cannot digest the beans, which emerge whole. When the civets eat ripe coffee cherries, the beans pass through their digestive system, undergoing a natural fermentation process. The beans are collected, cleaned, dried, and roasted to produce the final coffee. Yes, you are very correct, it sounds gross. And there are several halachic issues that require addressing.

Black Ivory Coffee

Once mankind discovered that predigesting whole coffee beans might tenderize the bitterness in coffee and add flavor profiles, people experimented with using the digestive systems of other animals. “Black Ivory Coffee” was developed by a Canadian businessman in 2012 and involves coffee beans refined by elephants. Perhaps one advantage to this brew over kopi luwak is that elephants are readily available in captivity, both in Africa and in India, which makes it easier to produce and harvest the product “in bulk,” and, as we will soon see, might resolve one of the halachic problems involved in kopi luwak. The founder of the company that produces this specialty brew contends that the fermentation in the elephant’s gut strips the coffee bean of its bitterness and adds notes of chocolate, cacao nibs, light peach, malt, tamarind, spice and black tea, flavored in part by whatever else is in the herbivore’s stomach. The company producing “Black Ivory Coffee” also claims that their product has major health benefits because the coffee is rich in antioxidants and minerals.

Potentially, different varieties of this product can be made by varying the diet of the elephants. At one point, there might be an “Apricot Flavored Black Ivory Coffee,” one with “Natural Vanilla Flavor,” a “cashew infused” selection, “lemon and mint,” perhaps even an “esrog-hadas-date” flavor in honor of Sukkos — as many varieties as at Baskin-Robbins. Can’t you just see the wide selection available in the Pesach aisle of your upscale local kosher supermarket? The choices are endless – but is the coffee kosher?

Bird coffee

Another type of specialty beverage is made from coffee cherries eaten by a variety of wild bird, the jacu. Jacu is the Portuguese name for one variety of birds, usually called guan, that are large tree-dwelling birds predominantly of tropical South American rainforests. It is claimed that this beverage is sweet, full-bodied, and smooth, with unique tasting notes of cinnamon, maple syrup, aniseed, and even hints of brown bread.

The history of kopi luwak

First imported from Indonesia in the 1990s, kopi luwak aficionados contend that acids and enzymes in the civet’s gut alter the protein content of the beans. It is also possible that the flavor is influenced by the civets’ preference for certain types of berries over others. As we will soon see, this factor may vary significantly by the type of kopi luwak drunk. They are roasted very lightly to preserve their complex flavors.

It is important to note that not everyone is convinced that the differences in flavor, if they even exist, are an improvement. It hasn’t fared well in expert tasting tests either. In the words of one coffee industry expert, kopi luwak is “a gimmick, a fairy tale fabricated to sell gullible consumers bad coffee at extraordinarily inflated prices.”

The cost of wild kopi luwak fluctuates between $20 and $100 per cup. To increase availability and bring down the price of this specialty beverage, an industry of farmed kopi luwak has developed in which the civets have been trapped, bred and fed coffee (and, presumably, other nutrients, since man, civets and even students in finals week cannot live on coffee alone). For those who want to buy kopi luwak by the bag (in bulk, no pun intended), wild kopi luwak costs significantly more, since it tastes better and is an ethical alternative to farmed kopi luwak.

Of course, when there is money to be made, there will be scandals. A BBC investigation discovered that “wild” kopi luwak being sold in Britain was in fact produced by civets being held in tiny cages in Sumatra, one of the larger islands of Indonesia. The gentleman who first imported kopi luwak to the West now regrets his involvement in what he describes as a “hideous trade.”

Our article is not a review of coffee variants, even if caffeine is the most common addicting substance in the western world. Our articles are about halacha, and we will discuss several halachic issues to determine whether this delicacy is kosher or not.

Potential halachic issues

What halachic issues must be clarified to determine whether these coffees are kosher? There are several:

1. Yotzei min hatamei

Since civets and elephants have neither split hooves nor chew their cud, they are not kosher. Do the enzymes and other digestive processes that the coffee bean absorbs in their guts render it yotzei min hatamei, something emanating from a non-kosher animal, like the milk or eggs of non-kosher species?

Similarly, we will have the same question regarding the jacu specialty. Since there is no

mesorah that the jacu or guan is a kosher bird, we must assume that it is not. In other words, since elephant and civet milk and jacu eggs are not kosher, must we assume that the coffee beans that they have digested are also not kosher?

2. Bal teshaktsu

Based on a pasuk (Vayikra 20:25), the Gemara prohibits eating something that people find repulsive (Shabbos 90b; Makkos 16b).

3. Tza’ar ba’alei chayim

Is there a halachic concern of tza’ar ba’alei chayim because an animal that naturally roams is being kept in small boxes and fed an artificial diet?

We will discuss these issues one at a time.

Yotzei min hatamei

According to all opinions, honey produced by bees is kosher, notwithstanding that it is very obvious that the bees do something to the nectar that they intake to make it into honey. The tanna’im dispute why is bee honey kosher.

The majority opinion, that of the Chachamim, is that the processing of nectar into honey is not significant enough to be considered yotzei min hatamei. Borrowing terminology of the Gemara, we could describe this as “sugar in, sugar out.” A minority opinion, that of Rabbi Yaakov, rules that honey of bees is kosher because of a gezeiras hakasuv, a halachic derivation from a verse, and this will include only the honey of bees (Bechoros 7b, as explained by Rabbeinu Tam in Sefer Hayashar #529-531, and many others).

The Gemara (Bechoros 7b) teaches that there is a practical halachic difference resulting from the dispute between these tanna’im: What is the kashrus status of honey-like substances that come from insects other than bees? According to the Chachamim, honey manufactured by wasps or the honeydew made by aphids is kosher. Notwithstanding that there are changes because of the input of these insects, the resultant product remains kosher. This is also the opinion of the Mishnah (Machshirim 6:4), which quotes no disputing view.

How do we rule?

The Rambam and Rabbeinu Tam rule according to the Mishnah and the majority opinion among the tanna’im that wasp honey and aphid honeydew are fully kosher. Because of a Talmudic inference (in Bechoros 7b), the Ramban and the Rosh (in their respective halachic compendia in Bechoros) rule like Rabbi Yaakov that these products are non-kosher. The Shulchan Aruch cites both opinions, but considers the lenient opinion to be the primary one (Yoreh Deah 81:9).

Let us now compare the coffee that has passed through the digestive tract of a civet, elephant or bird to wasp honey or aphid honeydew. According to the Chachamim, this coffee should certainly be permitted since the change rendered by the digestion of these creatures is far less noticeable than the change that wasps and aphids (or bees for that matter) do to nectar to make it honey. Honey neither looks nor tastes like nectar, nor does it have the same viscosity, but no visible difference appears in coffee beans after their passing through the digestive tract of these non-kosher animals. The differences in taste are extremely subtle and should be included under the heter of the Chachamim (see also Shu”t Igros Moshe, Yoreh Deah 2:24).

The question is whether Rabbi Yaakov agrees. In his opinion, honey is considered a different substance from the nectar that was ingested, and therefore only bee honey is kosher. However, there is a very strong logic to argue that even Rabbi Yaakov permits kopi luwak, Black Ivory and jacu coffee since the coffee bean appears unchanged after its digestion.

There is another reason to permit these specialty coffees even according to Rabbi Yaakov. The Mishnah (Bechoros 7b) teaches that when a non-kosher fish swallows a kosher fish, the kosher fish remains kosher, and the Gemara (Bechoros 7b) says this is true even after it has passed through the entire digestive tract of the non-kosher fish. Many rishonim contend that something that passes through whole, or that remains hard when it is finished being digested (see Menachos 69b; Rash, Ohalos 11:7; Tosafos, Bechoros 7b), is considered no different halachically from what it was prior to digestion. According to this approach, Rabbi Yaakov would permit these varieties of coffee.

Bal teshaktsu

Based on a pasuk (Vayikra 20:25), the Gemara prohibits eating something that people consider repulsive (Shabbos 90b; Makkos 16b). This prohibition is called bal teshaktsu. Our question is whether I may eat something that I do not consider vile, but other people do. The Pri Chadash (Yoreh Deah 84:3) rallies much proof that individuals who are not revolted by a particular food may eat it, even when most people are. This author is unaware of any other halachic authorities who discuss this question. Although the Be’er Heiteiv refers to this Pri Chadash, he does not discuss or analyze it. According to this Pri Chadash, someone not disgusted by the past history of this expensive brew in front of him may drink it. There is also no reason to mention the background of the beverage to someone who is oblivious to its history.

There is other evidence that these beverages should not be prohibited because of bal teshaktsu. While discussing the rules of food being susceptible to tumah, the Tosefta (Taharos Chapter 9) and the Gemara (Menachos 69a) rule that wheat and barley kernels removed from cattle, donkey or camel manure are considered food if an individual decides that he would eat them. This implies that there is no prohibition of bal teshaktsu.

Tza’ar ba’alei chayim

At this point, I refer to the third of our opening questions: Is it permitted to catch civets in order to use them for coffee production?

The question relates probably only to farmed kopi luwak, since the captured civets are now caged and this is a species that usually lives in the wild.

One may use an animal to service people, even when doing so inflicts pain on the animal (Terumas Hadeshen 2:105; Rema, Even Ha’ezer 5:14; these authorities base their rulings on Talmudic sources — see Shabbos 154b, Avodah Zarah 13b). The rationale provided is that animals and the rest of creation were created in order to service mankind (Terumas Hadeshen, based on Kiddushin 82a).

On the other hand, all authorities prohibit causing animals to suffer unnecessarily, such as to strike an animal out of anger or frustration (Sefer Chassidim #666). If an animal that is normally well-behaved and responsive to its vocation refuses to work one day, one should not beat it to get it to cooperate – rather, one should consider the possibility that it might be ill (Sefer Chassidim #668). Animals do get sick and, as we see from the story of Bilaam, they may have difficulty expressing themselves.

More specifically, it is prohibited to raise livestock in an inhumane way, such as by feeding them an unusual diet or depriving them of proper ventilation or exercise. However, although farmers may violate tza’ar ba’alei chayim when they raise their livestock, I am unaware of any authority who prohibits using a product that resulted from tza’ar ba’alei chayim. The prohibition is on the one who raises the livestock. In practice, many animals that we shecht and eat are raised in less than optimal circumstances, yet poskim have not ruled that we should avoid using such animals, or that we are required to inspect how these animals are handled prior to our purchasing meat that comes from them.

One can ask this question relative to many modern techniques of fur and fish farming and animals used for research. The question is whether the techniques used are indispensable for mankind to gain the benefits. For example, research testing on animals to see whether beneficial drugs are safe for mankind is certainly permitted, provided that no unnecessary pain is inflicted upon the animals. This is far less obvious when we are researching the safety of cosmetic items, particularly when others are readily available. In the case of kopi luwak, does this coffee really taste so much better that there is a necessity to keep civets in cages? And, why can’t those who really want this specific brew purchase wild kopi luwak.

I will also note that civets are farmed already for use as a flavor enhancer in food production. They are one of the reasons why products containing “natural flavors” must have a proper kosher certification. I am unaware of the conditions in which civets are raised for these purposes, but these are not within the parameters of this article.

Bird friendly

At this point, let us examine the last of our opening questions:

What is the difference between “bird coffee” and “bird friendly coffee?”

Bird Friendly® coffee has nothing to do with jacus or the digestion of coffee beans by a mammal. Coffee growing is a massive industry and requires tropical and subtropical areas for production. Unfortunately, coffee farms usually destroy natural habitat that was previously used by birds, either migratory or regional. Bird Friendly® farms provide a shade cover for habitat for both migratory and resident birds in their tropical landscapes. The term Bird Friendly® is a registered trademark of the Smithsonian Institute used to endorse farmers who qualify for its certification and research program.

Conclusion

Shelomoh Hamelech teaches (in Mishlei 12:10) Rachamei re’sha’im achzari,the compassion of the evil is cruelty. What does this mean, particularly since the context of the pasuk implies that it is discussing the care one takes of his animals? The example chosen by the Sefer Chassidim (#669) is of an evil person who feeds his animal well, but then expects it to perform beyond its capabilities – after all, he treated it so nicely. When the owner’s expectations are not realized, he beats the animal mercilessly. It turns out that his initial compassion causes him to be cruel.

To quote the Tosefta (Bava Kama, end of Chapter 9): Rabbi Yehudah said in the name of Rabban Gamliel, “Recognize this: As long as you act with mercy, Hashem will have mercy on you.” Sefer Chassidim #666 notes: If we are merciful to our animals, Hashem and others will be merciful to us. We should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

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Say Cheese!

Question #1: What is the prohibition called gevinas akum, and why did Chazal prohibit it?

Question #2: How is kosher cheese made differently from non-kosher cheese?

Question #3: I was once told by someone knowledgeable that one who is careful about chalav Yisrael is permitted to use a product containing whey, even though the product does not say that it is chalav Yisrael. Is this true?

Before discussing the halachic issues involved in manufacturing cheese, we need to explain the basics of cheesemaking. Hashem made cow’s milk contain all the nutrients necessary for a newborn calf to grow big and strong until it is ready to be self-supportive by mowing the lawn. The major components of milk are lactose, or milk sugar, which provides the carbohydrates a young calf needs; casein and other proteins; cream (which is the fat component); various other nutrients including calcium for healthy bones; and about 90% water, which keeps the other ingredients in suspension or solution.

To make cheese, one causes the casein to precipitate (separate) out of the fluid milk, which causes the casein to coagulate. (The word casein has the same cognate source as the word “cheese” — the Latin word for cheese, caseus.) This precipitation, or setting, can be allowed to happen naturally by allowing milk to curdle (thus producing the “delicacy” that Little Miss Muffet ate as “curds and whey”) or, can be facilitated by adding acid or an enzyme (such as rennet) to the milk. The coagulated part of the milk, called the curd, separates from the rest, which is the whey. In the case of a “hard” cheese, the curd is pressed, molded, flavored and aged to become the variety of cheese desired. The names of most cheeses (Roquefort, Swiss, Muenster, Gouda, Cheddar etc.) reflect the geographic location where these cheeses were developed.

What is the prohibition called gevinas akum, and why did Chazal prohibit it?

The origins of the rabbinic prohibition banning non-Jewish cheese are mentioned by the Mishnah, which records an interesting conversation:

“While the two of them were traveling together, Rabbi Yishmael asked Rabbi Yehoshua: ‘Why is the cheese of gentiles prohibited?’ He answered: ‘Because they set it using the stomach of a calf that had been slaughtered in a non-kosher way.” Rabbi Yishmael noted legal reasons why he felt that this could not be the reason for the prohibition, upon which Rabbi Yehoshua explained that the prohibition is “because the gentiles set the cheese with the stomach of a calf that had been offered for idol worship.” Rabbi Yishmael denied that this could be the reason, because if it was, one should not be permitted even to benefit from gentile cheese. At this point, Rabbi Yehoshua changed the subject, signifying that he would not discuss the matter further (Avodah Zarah 29b).

As we see, Rabbi Yehoshua evaded explaining why the Sages prohibited cheese. This is very curious, particularly when compared to the prohibition of chalav akum¸which the Gemara explicitly states is because of concern that non-kosher milk might be added.

In addition to the two explanations that Rabbi Yehoshua cited, the Gemara (Avodah Zarah 35) mentions five additional reasons why Chazal prohibited consumption of gevinas akum:

(1) Rabbi Yehoshua ben Levi: The milk may have been left in a place that snakes could poison it with their venom.

(2) Rabbi Chanina: The milk may have been adulterated with milk of a non-kosher species. Although most non-kosher species do not allow themselves to be milked, camels, donkeys, and mares (female horses) can all be milked and produce a palatable product. It is because of concern that these milks may have been added to milk from a kosher species that Chazal created a different prohibition, consuming milk when a Jew did not observe the milking (chalav akum). Although milk from non-kosher species contains very little casein and thus cannot be made into cheese, if such milk was mixed with kosher milk before it was processed into cheese, some fluid remains in the cheese that could contain non-kosher milk.

(3) Rav Ada bar Ahavah: The surface of the cheese may be coated with lard.

(4) Rav Chisda: Non-kosher wine vinegar may have been used to set the cheese.

(5) Rav Nachman bar Yitzchak: Sap of an orlah fruit may have been used to set the cheese. The Torah (Vayikra 19:23) prohibits eating or benefiting from fruit grown on a tree during its first three years. Those fruits are called orlah and the prohibition of the Torah applies whether the tree was planted by a Jew or a gentile, and whether it grew in Eretz Yisroel or in chutz la’Aretz.

The Rambam in his discussion of these laws mentions setting cheese with the sap of figs. Presumably, he is referring to the juice of figs from which today we extract the enzyme known as ficain (or ficin) which is used to make certain varieties of cheese.

As we will soon see, the Rishonim dispute whether these five opinions are in dispute – meaning that each holds his reasons to the exclusion of the others, or that they are each citing a different reason for the prohibition, and that the cheese was prohibited because of any of the reasons.

I want to share with you a curiosity: While researching information for this article, I discovered a sixty-year-old article describing how one manufactures cheddar cheese (also a name of geographic origin since it was originally developed in Cheddar, England). The article reports that the cheese was made by adding calf stomach rennet to the milk to make it curd, heating the curd, going through several processes to carefully remove “every scrap” of whey, pressing the curd, plunging it into hot water briefly to form a thin rind and then greasing the rind with pure lard to thicken the rind. Thus, three of the reasons mentioned by the Gemara to prohibit cheese were used to make this cheese – the use of non-kosher rennet; the use of lard; and the remaining uncurded milk in the cheese which could contain adulterated milk were it not deliberately removed.

Why did Rabbi Yehoshua hide the reason?

Although we now have some background why Chazal prohibited gentile cheese, we have no idea why Rabbi Yehoshua was reticent to explain the origin of the prohibition. However, the Gemara (Avodah Zarah 35a) does explain his concern, in the following passage: “Why did he not reveal the true reason? As Ula explained: When the scholars of Eretz Yisrael decreed a new prohibition, they did not reveal the reason for twelve months — lest someone dispute their reason and be lax in its observance.” Thus, we see that even when the prohibition began, no reason was given out of concern that this would affect whether the takanah would be properly observed.

In the times of the Rishonim, there were areas of Europe, particularly in Italy and parts of southern France, where there was a long-established practice to be lenient regarding the consumption of the local cheese of non-Jews. The lenience was based on the fact that the Jews knew the recipe that the gentile cheesemakers used, and that none of the concerns mentioned by the Gemara were germane. The cheese was set with “flowers,” some variety of plant-based enzyme. I am told that, to this day, there are cheeses in some parts of Europe that are made with an enzyme found naturally in a variety of thistle. Perhaps, this was the type of cheese that these communities used.

In any event, this leniency was common in certain areas and found halachic backing (several Rishonim in the name of the Geonei Narvona). Tosafos quotes Rabbeinu Tam as saying “that we do not find an obvious reason to prohibit gevinas akum.” Rabbeinu Tam felt that the different opinions quoted in the Gemara are in dispute and that the authoritative position for the gezeirah of gevinas akum is that of Rabbi Yehoshua ben Levi — that the cheese may be contaminated with snake venom. Rabbeinu Tam then opines that, according to Rabbi Yehoshua ben Levi, the prohibition of gevinas akum was never instituted in a place where snakes do not flourish.

However, most Rishonim reject this reasoning, some because they feel that the different reasons mentioned by the Gemara do not necessarily disagree, and others contending that the prohibition against gentile cheese exists even when none of the original reasons apply. They maintain that the prohibition has a halachic status of davar she’beminyan, a rabbinic injunction that remains binding until a larger and more authoritative body declares the original injunction invalid, even when the reason the takanah was introduced no longer applies. Since a more authoritative beis din never rescinded the prohibition on gentile cheese, it remains even when none of the reasons apply (Rambam, Maachalos Asuros 3:4; Rashba, Toras HaBayis page 90b; Semag, Mitzvah 223; Tur, Yoreh Deah 115; For an explanation of how the Geonei Narvona resolved this issue, see Chazon Ish, Yoreh Deah 40). Others even argued that Rabbeinu Tam himself never permitted gevinas akum; his comments were meant to be theoretical, not definitive (Semag; Semak).

The Shulchan Aruch rules that there is no halachic basis to allow the practice of those communities that permitted use of the local gentile cheese, even when one has ascertained that they contain no non-kosher ingredients. The Rema follows a moderately more lenient view, permitting use of gentile cheese only in a place where one can ascertain that there was a long established custom to permit it. Thus, today no one would be able to use gentile cheese, with the possible exception of an Italian community that can prove that they have such a tradition going back several hundred years.

How is kosher cheese made differently from non-kosher cheese?

Having established that almost universal opinion contends that the prohibition against gentile cheese is alive and well even when none of the concerns apply, we need to clarify: Is any cheese produced by a gentile halachically non-kosher? Can a Jewish cheesemaker hire non-Jewish workers? Is there a way to have a gentile manufacture cheese and it is still kosher?

Regarding these issues, we find a dispute between two major halachic authorities, the Rema (Yoreh Deah 215:2) and the Shach. The Rema contends that when a Jew observes the production the cheese is gevinas Yisrael and fully kosher, even though the milk and curding agents are all owned by a gentile, and gentiles perform every step and process. Thus, the Rema understands the prohibition of gevinas akum to be structured similarly to chalav akum – if a Jew supervised the production, it is kosher.

The Shach takes issue with this approach, contending that if a gentile owns the milk, the acid, and the enzyme, and places the acid or enzyme into the milk; the resultant cheese is prohibited as gevinas akum, even if an observant Jew supervised the entire production! The Shach rallies support for his position from the wording of the Mishnah, which, when describing the prohibition against chalav akum, prohibits milk “milked by a gentile without a Jew watching,” whereas in discussing gevinas akum, the Mishnah simply prohibits “the cheese of gentiles,” omitting the proviso that a supervising Jew is sufficient to remove the prohibition. According to the Shach, the only “whey” to avoid gevinas akum is to have a Jew place the curding agent into the milk, or to have a Jew own the milk or the cheese. In these instances, the cheese is now considered “Jewish” cheese, because it was either owned or manufactured by a Jew.

The Shabbos problem

Those who followed the Shach’s approach, occasionally ran into the following practical problem. In order to have kosher cheese, they needed to have a gentile make it for them, and they could easily arrange that a Jew add the enzyme or acid to the milk. The gentiles were willing to accommodate Jewish needs if the price was right; the gentile ordinarily used non-kosher rennet, the Jew used his own kosher rennet. However, what was one to do when the gentile decided that the best day to set the cheese was on Shabbos? A Jew may not put rennet into milk on Shabbos – and, according to the Shach, if he does not, there is a problem of gevinas akum.

This entire problem does not exist according to the Rema. In his opinion, there is no gevinas akum problem here. The Jew can simply oversee the work that the non-Jew is performing, even on Shabbos. The Jew himself is performing no melacha, and the non-Jew does not have to keep Shabbos.

The Pri Chadash, who agrees with the Shach’s analysis as to what makes a cheese “Jewish,” discusses this issue and concludes the following:

If the Jew orders a certain quantity of cheese, that is sufficient to permit the cheese as gevinas Yisrael. Since this cheese is being specifically made for the Jew, the Jew is considered the owner of this cheese as soon as it is manufactured, thus eliminating the prohibition of gevinas akum, even if the Jew did not participate in the manufacture.

Hard and soft cheese; butter

Halachically, there is much discussion among authorities whether the prohibition of gevinas akum applies to butter and to certain soft cheeses like cottage cheese and cream cheese. This topic is explained in a different article, “The Great Cottage Cheese Controversy.” Searching for the word “cottage cheese” on the website should be sufficient.

The milky whey

Whey is a byproduct of the cheese industry. When milk curds, the leftover is the whey, which, although a byproduct, may have much commercial use if made from certain cheeses.

The first question we need to resolve: Is whey prohibited because of gevinas akum? Many halachic authorities accept that the prohibition of gevinas akum applies only to the cheese, but not to the whey. However, many varieties of whey may still be non-kosher for an interesting reason: Some types of cheese are produced by heating the milk to temperatures hot enough that the whey absorbs from the non-kosher cheese. Other cheeses, although produced at lower temperatures, have hot water added to the finished cheese that becomes part to the whey. The result is that this whey is non-kosher because it contains admixture of non-kosher cheese (Darkei Teshuvah 115:30).

However,we should note that Rav Moshe Feinstein contends that the whey that results from cheesemaking remains kosher since the cheese at the time of production is still owned by the gentile. Only when a Jew purchases the cheese does it become non-kosher, and therefore the whey is not considered to contain any taste from non-kosher cheese (Shu”t Igros Moshe, Yoreh Deah 3:17). In addition, he argues that Chazal did not prohibit whey from cheese production under any circumstances.

According to all opinions, whey is exempt from the prohibition of chalav akum. This is a topic to which we will need to return when we discuss butter and soft cheeses.

“Kosher Cheese?!?”

Before we close our discussion, I want to share with you a personal anecdote that demonstrates not only concerns about gevinas akum but also shows why one should not use a product when one does not know who stands behind its kashrus supervision. I was once driving through a small town in Western New York when I noticed a small cheese factory on the opposite side of the street. Being the curious type, I decided to drop in on the facility to learn more about the production processes. Since I am not shy, I asked the receptionist whether the owner or manager was in, and that I was a rabbi involved in kosher certification and interested in increasing my knowledge of food production. I was pleasantly surprised at the friendly reception I received from the owner, Vince, who indeed showed me through the facility and answered all my questions very cordially, as if he had all the time in the world. Obviously, the cheese was not kosher because of gevinas akum, and I therefore made no attempt to ascertain what type of rennet the company used.

After the tour, I was very surprised by the conversation that ensued, considering that this was a completely spontaneous visit and Vince did not even know me. He asked me whether I was an Orthodox rabbi, and whether I would be interested to provide his plant with a letter that it is a kosher facility. I was quite surprised by the question, and asked him whether he had ever entertained kosher certification before.

“Oh, we have been kosher for many years, but we have been unable to contact our rabbi to renew his letter.”

Further inquiry revealed that for many years the company had been paying an annual fee to a “rabbi” who in exchange provided them with a letter that the cheese was kosher. I was never able to ascertain whether this individual was a completely unlearned “rabbi” who was oblivious to the prohibition of gevinas akum, or someone not observant or concerned of the halacha. But it really makes no difference. As we have learned, obtaining a “kosher” letter is not a sufficient procedure with which to kosherize cheese.

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Proper Prayer Rejoinders

or To Berich or not to Berich

Yaakov, a relative newcomer to Yiddishkeit, visited a new community and davened each prayer at a different shul. He noticed that in each shul, the responses to Kaddish were different, which he found surprising. His rabbi explained to him the background.

When hearing Kaddish, we say “Amen” at several places, in addition to saying the very important “Amen, ye’hei shemei rabba mevorach le’olam ul’almei almaya.” (The poskim dispute whether one should also add “yisbarach”to this sentence, the Shulchan Aruch [Orach Chayim 56:3] ruling that one should, and the Gr”a ruling that one should not.) In addition, Ashkenazim respond to the words, shemei dekudsha berich hu, His holy name, blessed is He, by repeating the Chazan’s words berich hu. (Nusach Sefard and Sefardim say Amen at this point.) However, most people do not realize how late this response of berich hu came into practice. People are also not familiar with the halachos regarding this response; depending on where one is up to in davening it may be forbidden to recite this response as it constitutes an interruption. The goal of this article is to explain both the historical background of berich hu, and when we should and should not recite it. We will also discuss when one is allowed to recite other responses of the Kaddish.

The Gemara (Berachos 3a; Sotah 49a) mentions Kaddish and lays special emphasis on responding Amen, ye’hei shmei rabba mevorach le’olam ule’almei almaya with fervent feeling. The poskim accentuate the importance of not talking while Kaddish is recited. One should pay careful attention to the recital of the Kaddish and know to which praise of Hashem one is responding (Shulchan Aruch, Orach Chayim 56:1).

CHRONICLE OF A RESPONSE

What exactly is berich hu?

The words berich hu, are Aramaic for “blessed be He,” and are a repetition of two of the words of the Kaddish just said by the chazzan at that point: veyis’halal shemei dekudsha berich hu le’eila min kal birchasa ve’shirasa…, exalted be the name of the Holy One, blessed be He Who shall be praised beyond all blessing and song.

When did responding berich hu become a standard part of davening? Surprising as this may seem, no early poskim mention a custom of responding with just these two words. The custom started about four hundred years ago when it was not unusual to find people responding at this point of Kaddish with a refrain similar to the one we recite. The Taz (Orach Chayim 56:3) reports a practice to accentuate the praise of Hashem by joining the chazzan at the point when he reaches the words shmei dekudsha, His holy name, by accompanying him when he recites the three words berich hu le’eila, which means that the congregation recited words that translate as Blessed is He above. The Taz condemns this practice harshly since these three words may imply an unintended blasphemous statement — that Hashem is blessed only above, but not below. Therefore, the Taz rules that one should continue by reciting the subsequent three words, thus resulting in the following praise, berich hu le’eila min kal birchasa, which translates as Blessed is He above all blessing. This clarifies one’s intent and removes any concern about blasphemy. However, contemporary Ashkenazic practice does not recite this elongated response, but instead reduces the response to the two words, berich hu, blessed be He, which also accomplishes praising Hashem with no hint of blasphemy. Some Hassidic circles indeed follow the advice of the Taz and recite berich hu le’eila min kal birchasa.

This explains the origin of the custom to recite berich hu to Kaddish. What we still do not know is when we may not recite it. Explaining these halachos requires some introduction.

BARUCH HU UVARUCH SHEMO

The response berich hu is similar to our response Baruch Hu uvaruch shemo, blessed is He and blessed is His name, which we recite upon hearing Hashem’s name articulated as part of a beracha. The first halachic authority to mention this practice is the Rosh, about 800 years ago. The Tur (Orach Chayim 124) states, “I heard from my father [the Rosh] that every time he heard a beracha he would say Baruch Hu uvaruch shemo. He based this practice on the pasuk that states, “When I call Hashem’s name, bring forth greatness to our G-d” (Devorim 32:3); thus, upon hearing Hashem’s name, one should add a praise of one’s own. The Rosh added another halachic source for this practice based on the following translation of the pasuk, “Remember a tzadik for blessing” (Mishlei 10:7). This verse teaches that even when mentioning the name of a righteous human being one should bless him; if so, one should certainly bless Hashem when mentioning His name.

Shulchan Aruch Orach Chayim 124:5) rules that one should respond Baruch Hu uvaruch shemo whenever one hears a beracha. Nevertheless, one may not answer this refrain during birchos keri’as shema or during Pesukei Dezimra (Magen Avraham 124:9; Mishnah Berurah 124:21). Why not?

WHAT RESPONSES ARE PERMITTED WHILE RECITING THE BIRCHOS KERI’AS SHEMA?

The part of davening following Borchu until the Shemoneh esrei is called the birchos keri’as shema, because it consists of the berachos established by the Anshei Keneses HaGedolah (the leaders of the Jewish people in the era of Ezra, Mordechai and Esther, during the period prior to and the beginning of the second Beis HaMikdash) before and after reciting Shema. The Mishnah (Berachos 13a) teaches that although usually one may not interrupt these berachos, there are some exceptional circumstances.

However, there is one place during this part of the davening that is so important that one should not interrupt unless it is a life-threatening emergency. This is while saying the pesukim of Shema Yisroel and Baruch shem kovod malchuso le’olam va’ed (Shulchan Aruch 66:1).

It is not clear cut what the halacha is regarding communal responses while one is davening. The Rishonim dispute whether one may respond to Borchu, to Kedusha, and Amen yehei shemei rabba during birchos keri’as shema. Those who prohibited this practice contended that one may not interrupt the berachos of keri’as shema for the sake of a different praise, such as responding to Kaddish or Kedusha. The Rosh (Berachos 2:5) disputes the opinion of his rebbe, the Maharam Rotenberg, who prohibited this practice. The Rosh holds that responding appropriately to Hashem’s praises is no worse than responding to the greeting of a person, which is permitted under certain circumstances, as mentioned above.

The poskim conclude that one may answer the following responses while reciting the birchos keri’as shema:

A. “Amen, ye’hei shmei rabba mevorach le’olam ule’almei almaya” in Kaddish.

B. “Amen” to the chazzan’s da’amiran be’alma in Kaddish, but not to other places in Kaddish (Chayei Odom 20:4).

C. “Boruch Hashem hamevorach la’olam va’ed” to Borchu, whether the Borchu before birchos keri’as shema or the one that precedes an aliyah (Magen Avraham 66:6).

D. “Kodosh kodosh…” and “Boruch kevod Hashem mimkomo” in Kedusha. However one should not respond to the other parts of Kedusha we traditionally say, even the sentence beginning Yimloch (Ateres Zekeinim).

E. “Amen” to the berachos of Ha’Keil Hakadosh and to Shema Koleinu (Rama 66:3).

F. The words “Modim anachnu Loch” recited in response to the chazzan’s saying Modim in the repetition of Shemoneh Esrei (Rabbeinu Yonah, Berachos 7b; Mishnah Berurah 66:20).

HALLEL AND MEGILLAH

The Gemara (Berachos 14a) discusses whether the same rules that apply to interrupting the birchos keri’as shema also apply to the full Hallel and to the recital of the Megillah. The Gemara questions why the rules governing the birchos keri’as shema should be stricter than those for Hallel and Megillah, since the requirement to recite keri’as shema is min haTorah, whereas the mitzvos of Hallel and Megillah are only rabbinic in origin. Alternatively, the Gemara suggests that since both Hallel and Megillah publicize miraculous events, perhaps the rules of interrupting them should be stricter. The Gemara concludes that we should treat the rules of birchos keri’as shema, Hallel and Megillah the same. Thus, all the responses listed above are recited when one is in the middle of birchos keri’as shema, Hallel, or hearing the Megillah.

AN ALIYAH

The poskim debate whether someone in the middle of the birchos keri’as shema may respond Amen when he hears someone recite the berachos before or after an aliyah. The Magen Avraham (66:6) rules that one should recite Amen to these berachos, whereas the Pri Megadim questions this practice. The Mishnah Berurah (66:18) concludes that he may recite Amen if he is between two of the berachos, such as he has just completed “Yotzeir HaMeoros” or “HaMaariv Aravim.”

This dispute is based on an interesting story. Someone was once delayed in davening, and was in the middle of the birchos keri’as shema when he was called up to the Torah for an aliyah. May he recite the berachos on the Torah even though it is an interruption in the middle of birchos keri’as shema?

The Sefer HaManhig ruled that he should accept the aliyah and recite the berachos (Tur 66). Not accepting an aliyah when one is called to the Torah is an insult to Hashem’s honor, and certainly Hashem deserves at least as much honor as the individual discussed earlier. Therefore reciting the berachos has the same status as greeting a person and may be recited during the birchos keri’as shema. The Magen Avraham apparently holds that answering Amen to the berachos of an aliyah has the same halachic status as the Sefer HaManhig’s aliyah case and therefore one should recite this Amen even in the middle of birchos keri’as shema. The Pri Megadim disputes the Magen Avraham’s view, suggestingh that this Amen is no different from Amen to any other beracha.

However, the Rashba (Shu”t HaRashba 1:185) disagrees with the Sefer HaManhig’s conclusion, ruling that someone in the middle of this part of davening who is called to the Torah should not go up, but someone else should take his aliyah instead (Beis Yosef, Orach Chayim 66). The Shulchan Aruch (66:4) follows the latter opinion, whereas most other opinions rule that he should take the aliyah and recite the berachos, but be careful not to interrupt in any other way (Magen Avraham 66:8).

The poskim dispute whether one may recite Amen to a any other beracha that one hears when he is between two berachos of birchos keri’as shema. Some contend that he may recite Amen after hearing any beracha, since he is currently between berachos (Pri Megadim, Eishel Avraham 66:7). Others contend that he may recite Amen only to the beracha that he just recited, such as he heard the end of the beracha from the chazzan or from a different individual (Chayei Odom 20:4).

A THUNDERING BERACHA

The poskim also dispute whether one may recite the beracha on thunder while in the middle of birchos keri’as shema. Magen Avraham 66:5 rules that he should, whereas the Bechor Shor (Berachos 13a) disagrees, contending that one should not interrupt one praise of Hashem, the Shema, with another, the beracha on thunder. The Chayei Odom reaches a compromise, ruling that one should recite the beracha if he is between the berachos of keri’as shema, but not in the middle of a beracha. This last dispute remains unresolved (Mishnah Berurah 66:19). Thus, if someone hears thunder while reciting Hallel or the birchos keri’as shema, or reading or hearing the Megillah, it is his choice whether to recite the beracha or not.

ASHER YATZAR

Although usually one should recite the beracha Asher Yatzar immediately after washing one’s hands when leaving the lavatory (see Shulchan Aruch 165:1), one should not recite it during birchos keri’as shema but should postpone its recital until after Shemoneh Esrei (Mishnah Berurah 66:23). The same policy should be followed during Hallel or Megillah: he should wait to recite Asher Yatzar until after Hallel and Megillah and their concluding berachos are completed.

TALIS AND TEFILLIN

What if someone did not have talis and tefillin available before davening, and they became available during birchos keri’as shema? May he recite a beracha prior to donning them or does the beracha constitute a hefsek during the berachos?

The Rishonim debate this issue. Rashi’s rebbi, Rabbi Yitzchak the son of Rabbi Yehudah, indeed recited the beracha before donning both his talis and his tefillin, and brought proof to his actions from the Gemara (Berachos 14b):

The great Amora Rav once began reciting keri’as shema and its berachos without having tefillin. Right after he completed Shema, his messenger brought him tefillin, so Rav immediately donned the tefillin prior to reciting Shemoneh Esrei,. Rabbi Yitzchak, Rashi’s rebbi, presumes that Rav recited the beracha before putting on the tefillin even though he was in the middle of the birchos keri’as shema.

Similarly, Rabbi Yitzchak the son of Rabbi Yehudah reasoned that in a similar situation when one first receives his talis immediately before Shemoneh Esrei, he should recite the beracha before donning either one. Tosafos (ad loc.), however, disagrees with Rabbi Yitzchak the son of Rabbi Yehudah, reasoning that one is required to wear tefillin while davening and therefore donning them is a requirement of the tefillah. As such the beracha on the tefillin also is not an interruption. However, one is not required to wear a talis during davening, and therefore the beracha before donning it should not preempt the laws of hefsek.

How do we conclude?

The Shulchan Aruch (66:2) rules like Rabbi Yitzchak the son of Rabbi Yehudah that he should recite both the beracha on the talis and the beracha on the tefillin; this is the practice of the Sefardim. The Rema rules like Tosafos that he should only recite the beracha on the tefillin but not on the talis.

WHAT RESPONSES ARE PERMITTED DURING PESUKEI DEZIMRA?

The Anshei Keneses HaGedolah established that one should recite daily, at the beginning of davening, praises written by Dovid HaMelech (Zohar, Parshas Terumah). We introduce these passages of praise, Pesukei Dezimra, with the beracha of Baruch She’amar and conclude them with the beracha of Yishtabach. The beracha of Yishtabach does not begin with a beracha because it is linked directly to the beracha of Baruch She’amar. Since these two berachos are linked, one may not interrupt between them for anything that is not part of the davening. For this reason, it is strictly forbidden to talk during Pesukei Dezimra (Tosafos, Berachos 46a s.v. kol; Shulchan Aruch Orach Chayim 51:4). Similarly, it is forbidden to answer Baruch Hu uvaruch shemo during this part of davening (Magen Avraham 124:9; Mishnah Berurah 124:21). Although it is appropriate to praise Hashem this way when His name is mentioned, one does not interrupt when one is praising Him already in order to do so.

Some poskim contend that interrupting Pesukei Dezimra is halachically equivalent to interrupting the birchos keri’as shema. According to this opinion, one may not answer Amen to a beracha that one hears during Pesukei Dezimra (Shu”t Mishkenos Yaakov, Orach Chayim #68). Other poskim contend that one may answer Amen to any beracha while in the middle of Pesukei Dezimra, and even while in the middle of the beracha of Baruch She’amar (Magen Avraham 51:3). The consensus is that, although it is clearly forbidden to talk during the Pesukei Dezimra, answering Amen to any beracha is permitted. Furthermore, someone who needs to recite Asher Yatzar, or to recite the beracha on thunder or lightning, may do so during Pesukei Dezimra. One may certainly answer during this part of davening the responses listed above of Kaddish, Borchu and Kedusha (Mishnah Berurah 51:8. The Chayei Odom [20:3] rules that one should not recite Asher Yatzar until after Shemoneh Esrei.) However, reciting berich hu during Pesukei Dezimra is similar to reciting Baruch Hu uvaruch shemo and constitutes an interruption during Pesukei Dezimra.

Thus, although many people are unaware of this halacha, someone in the middle of Pesukei Dezimra when the chazzan begins reciting the Kaddish before Borchu may not answer berich hu to the Kaddish. On the other hand, he should answer Amen, ye’hei shmei rabba mevorach le’olam ule’almei almaya and the Amen at da’amiran be’alma. He may also answer Amen to the beracha of Yishtabach. However, since the Amen after “Yisgadal veyiskadash shmei rabba” (and in Nusach Sfard after “meshichei”) is only custom, he should not recite these either while in the middle of Pesukei Dezimra and certainly not while in the middle of birchos keri’as shema.

AFTER YISHTABACH

One may not interrupt between completing Yishtabach and beginning the next part of the tefillah (Shulchan Aruch Orach Chayim 51:4), although if one needs to recite a beracha it is better to do so after completing Yishtabach before answering (or saying) Borchu than during the Pesukei Dezimra. For this reason, if someone did not have tzitzis or tefillin available before davening, and they become available during davening (or if he must begin davening when it is too early to recite a beracha on them) he should put them on immediately after Yishtabach and then recite the berachos on them. Better to recite these berachos between Yishtabach and Borchu than to do so afterwards.

APPRECIATING KADDISH

For the many years Reb Zalman Estolin spent as a slave laborer in Soviet Siberia, he obviously had no minyan, nor any opportunity to answer Amen, ye’hei shmei rabba. Upon his redemption from the Soviet Union, he moved to Eretz Yisroel as an old, ill man. The very first morning in Eretz Yisroel, he arose early to walk to shul on his crutches, full with the excitement that he would be davening with a minyan for the first time in decades!

Two hours after davening should have been over, Reb Zalman had not yet returned to his host’s home. The concerned family sent someone to look for the old man, and discovered him sitting in the shul. When asked why he was still there, Reb Zalman answered, “When my minyan ended, another began. And then another. I just could not bear to miss the opportunity to recite Amen, ye’hei shmei rabba one more time” (Just One Word by Esther Stern).

We should always be zocheh to recite Amen, ye’hei shmei rabba with this type of enthusiasm!

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