It’s About Time

Quiz Question #1: Whose bris is first?

Mrs. Unger* gave birth to two healthy twin boys, both of whom had their brissin on the first day that halacha mandates, yet the younger Unger had his bris several days earlier than his older brother. How can this happen?

Question #2: Isn’t he too late?

I have often wondered why my chassidishe brother-in-law davens mincha after sunset, when the Mishnah Berurah rules that one should not daven this late!

Question #3: Frum receptionist

“My sister and I live in the same yishuv (community), and the nearest hospital is Laniado, in Netanya. She went into labor on Shabbos and left for the hospital. Immediately after Shabbos, I phoned the hospital to find out how she was and if she had a boy or a girl, and was told by the gentile receptionist that she could not put the call through until after ‘Rabbeinu Tam’ time arrives, which would not be for another half an hour. Why was the non-Jewish receptionist so frum?”

What does our parsha have to do with time?

This week’s parsha includes the mitzvah of establishing the Jewish calendar, providing an excellent opportunity to discuss what to do when there is an uncertainty what day it is.

Bein Hashemashos

As we know, observing bris milah overrides even Shabbos. However, this is so only for a bris bizmanah; that is, a bris that transpires on the eighth day of the child’s life, but not a bris that is delayed. A bris that is delayed should take place at the earliest opportunity that halacha allows, but not on Shabbos or Yom Tov (see Shu’t Dvar Avraham 1:33; 2:1-3). One reason why a bris may be delayed is because of a medical concern, a topic we will leave for a future article. Another common reason why a bris is delayed: The baby was born during bein hashemashos, a halachic “twilight zone,” a time when we are unsure if it is already Shabbos or not, since we are uncertain whether this period of time belongs to the previous day or the next.

The Mishnah (Shabbos 137a) addresses this issue:

A child is circumcised on the eighth, ninth, tenth, eleventh, or twelfth – no earlier and no later. How can this be? The normal circumstance is the bris is on the eighth. If he is born during halachic twilight (bein hashemashos), his bris is on the ninth. If [he is born]on Friday’s twilight, he is circumcised on the tenth [that is, Sunday]. If Yom Tov falls on Sunday, he is circumcised on the eleventh [Monday]. If Rosh Hashanah falls on Sunday and Monday, then he is circumcised on the twelfth [day after birth, which is Tuesday].”

We see that the only time we perform the bris on Shabbos is when we are certain that the baby was born on Shabbos. If a baby was born during bein hashemashos on Friday evening, then he was born at a time that we are uncertain whether it is still considered Friday or it is already Shabbos. As the Gemara (Shabbos 34b) expresses it: We are uncertain whether bein hashemashos is day or night… and we treat it strictly regarding both days. Therefore, when a baby is born during bein hashemashos on Friday evening, we cannot perform the bris on Friday, because maybe the baby was born on Shabbos, and Friday is only the seventh day, too early to perform the bris. We cannot perform the bris on Shabbos, either, because maybe the baby was born on Friday, and Shabbos is the ninth day, not the eighth, and only a bris bizmanah, a bris performed on the eighth day, supersedes Shabbos. Since there is no choice, we are forced to postpone the bris to Sunday, as the first available opportunity. However, if a Yom Tov falls on that Sunday, the bris cannot take place on that day, either, since only a bris bizmanah supersedes Yom Tov, and not a bris that is postponed to a time after the eighth day. As a result, the earliest day to perform this bris is Monday.

Rosh Hashanah Starting on Sunday?!

Continuing the explanation of the Mishnah: If Rosh Hashanah falls on Sunday and Monday, then he is circumcised on the twelfth. If the baby was born during bein hashemashos of the Friday evening ten days before Rosh Hashanah, and the two days of Rosh Hashanah fall on Sunday and Monday, then the bris is postponed until Tuesday the day after Rosh Hashanah, which is the twelfth day from the Friday on which the baby was born.

But one minute: the first day of Rosh Hashanah cannot fall on Sunday! How does the Mishnah say differently?

Although our calendar is set up such that Rosh Hashanah cannot fall on Sunday, so that Hoshanah Rabbah does not fall on Shabbos and thus does not jeopardize observance of Hoshanos, at the time of the Mishnah, Rosh Hashanah could and did sometimes transpire on Sunday. When Rosh Chodesh and Rosh Hashanah were determined by the testimony of witnesses who observed the new moon (Rambam, Hilchos Kiddush HaChodesh 1:1, 7; 5:1), it was halachically more important to have Rosh Hashanah fall on its more correct day than to be concerned about having Hoshana Rabbah fall on Shabbos (Ha’emek She’ailah 67:22; Gri’z, Hilchos Kiddush Hachodesh). Only once it became impossible to declare Rosh Chodesh on the basis of observation, and Hillel Hanasi created a permanent calendar, did he include some innovations, including making certain that Hoshanah Rabbah does not fall on Shabbos, by making sure that the first day of Rosh Hashanah does not fall on Sunday (Rambam, Hilchos Kiddush Hachodesh 5:2). (There is an alternative approach, that of Rav Saadiya Geon and Rabbeinu Chananel, to explain this subject, which will be left for another time.)

Why Did the Younger Baby have an Earlier Bris?

At this point, we already have enough information to answer Quiz Question #1 above: Why would a younger twin have his bris earlier than his healthy, older brother? The answer is that the older twin was born during bein hashemashos on Friday evening — at a time that we are uncertain whether he was born on Friday or on Shabbos. Because of this uncertainty, we cannot perform his bris on either Friday or Shabbos, as explained above, and his bris is postponed to Sunday. However, his younger brother was born at a time that is certainly Shabbos, and therefore his bris takes place on Shabbos.

When is Twilight?

This explains the fundamental principles, but still leaves a basic question: When is bein hashemashos?

Answering this question requires delving into the following issue: We all are aware that the Jewish date begins at the beginning of the night. But at what exact moment does one day end and another begin? Do we know the precise instant when one day marches off into history, and its successor arrives with its banner unfurled?

A verse in the book of Nechemiah might help resolve this question. There, it describes the unenviable circumstances in which the Jews were rebuilding the Second Beis Hamikdash, while protecting themselves from the enemies determined to thwart its erection: And we were continuing the construction work from daybreak until the stars come out [tzeis hakochavim], while half our men were holding spears… and at night we were on guard, while in the day we could proceed with the work (Nechemiah 4:15-16). Nechemiah implies that “night” begins from when the stars emerge. The time of dusk, before the stars are visible, is still considered the previous day (see Berachos 2b; Megillah 20b).

However, we still need more definition. Which stars? Can we pinpoint the moment that the stars come out since the stars of the firmament do not all become visible at the same time?

Additional confusion is caused by a different verse that implies that the day ends when the sun sets, as the Torah (Vayikra 22:7) proclaims: And when the sun sets, he shall become pure, stating that the final stage of purification from some types of tumah is the sunset after immersion in a mikveh. However, at sunset, no stars are yet visible, and the halacha is that this taharah transpires at nightfall, implying that the changing of the day transpires at sunset, not when the stars appear (see Berachos 2b).

What a Phenomenal Dusk!

Is there any discussion in the Gemara that can “shed light” on our question? Indeed, there are several passages, and much literature is devoted to understanding them. One passage (Shabbos 34b) describes certain celestial phenomena that define when bein hashemashos begins and when it ends. The commentaries debate exactly what occurrences are being described, and, unfortunately we derive little usable information from this passage.

When Three Stars Appear

Another passage indicates that the end of the day is determined by the appearance of stars. When one star appears, it is still day. When two appear, it is bein hashemashos, and when three appear, it is night. Not large stars that appear even in the day, and not small stars that appear even at night, but middle-sized stars (Shabbos 35b).

Now the job appears easy. Let us look at the darkening firmament this coming evening and count stars!

I am sure at times you have tried. Ever spent Shabbos on a camping trip and attempted to determine the end of Shabbos by stargazing? How did you decide which stars are considered “small,” “large” and “middle-sized”? And this is assuming that one does not need to deal with light pollution!

Perhaps locating a Gemara discussion that indicates more objective criteria, such as units of time, can be more helpful in our search to determine the end of day. Does such a discussion exist in the Gemara?

Yes, it does — and not only one passage, but two. However, the two passages appear contradictory.

Conflicting Gemara Passages

The Gemara in Pesachim (94a) states that the time between shekiyah, a word usually translated as sunset, and tzeis hakochavim equals four mil, which we will assume is 72 minutes. (This concurs with the more obvious way of explaining the opinion of the Terumas Hadeshen [#123] and the Shulchan Aruch [Orach Chayim 459:2; Yoreh Deah 69:6 with Shach] that a mil, used as a unit of time, equals 18 minutes.) However, a different passage of Gemara (Shabbos 34b) quotes a dispute between Rabbah, who states that nightfall occurs three-quarters of a mil, or 13½ minutes, after shekiyah, and Rabbi Yosef, who rules that it transpires a bit earlier, two-thirds of a mil, or 12 minutes, after shekiyah. Obviously, we need to explain why one Gemara states that nightfall occurs 72 minutes after shekiyah, and another states that it occurs only 12 or 13½ minutes after shekiyah!

Rabbeinu Tam’s Explanation

Among the many resolutions to this conundrum, the two most commonly quoted are those of Rabbeinu Tam and that of the Gra. Rabbeinu Tam contends that these two passages of Gemara are using the word “shekiyah” to refer to two different phenomena which occur about an hour apart. The Gemara in Pesachim uses the term shekiyah to mean sunset — when the sun vanishes beyond the western horizon. Rabbeinu Tam refers to sunset as techilas shekiyah, literally the beginning of shekiyah. However, when the Gemara in Shabbos refers to “shekiyah,” it does not mean sunset, but a point in time about an hour later when virtually all light of the sun’s rays has disappeared from the western horizon. Rabbeinu Tam refers to this later time as sof shekiyah, literally the end of shekiyah, and in his opinion, until sof shekiyah occurs, halachah considers it definitely day, notwithstanding the setting of the sun and the appearance of hundreds of stars in the firmament. All these stars are considered “large stars,” whose appearance does not demonstrate that the day has ended. Only at sof shekiyah does it become bein hashemashos, the time when we are uncertain whether it is day or night. At sof shekiyah, bein hashemashos has begun, meaning that now there are two, but not three, visible “middle-sized” stars, and we await the appearance of the third “middle-sized” star to know that it is now definitely night. (However, cf. Minchas Kohen for a variant understanding of Rabbeinu Tam’s position.)

Since, according to Rabbeinu Tam, it is definitely still day until about an hour after sunset, there is no problem with davening mincha considerably after sunset. Thus, there are communities who base themselves on Rabbeinu Tam’s opinion and daven mincha well after sunset.

Rabbeinu Tam and a Friday Night Birth

According to Rabbeinu Tam, a baby born 58 minutes after sunset on Friday evening, and certainly any time earlier, was born halachically on Friday and not on Shabbos. In Rabbeinu Tam’s opinion, this baby’s bris takes place the following Friday. A baby making his appearance a bit later is considered to be born during bein hashemashos and cannot have his bris on Shabbos, because perhaps bein hashemashos is still Friday — which makes Shabbos his ninth day of life. This bris will be postponed to Sunday. However, if the baby is born a bit later on Friday evening, at a time when it is definitely Shabbos, then the bris is performed on Shabbos the next week.

It goes without saying that according to Rabbeinu Tam, one may not perform any melacha on Saturday night until a considerable time has passed after sunset. There are various opinions as to exactly when Shabbos is definitely over according to Rabbeinu Tam, but most people assume that Shabbos is over by 72 minutes after sunset (Biur Halacha).

By the way, at this point we can answer our third question above: why the telephone lines at Laniado Hospital are not open to non-pikuach nefesh related calls until more than a half hour later than the time Shabbos ends according to most calendars. The founder of the hospital, the Klausenberger Rebbe, insisted that Shabbos be observed at the hospital until the time at which Rabbeinu Tam would concur that Shabbos is over.

The opinion of the Gra

Since we know that many highly observant Jews do not wait this long for Shabbos to end, there must be another way of interpreting the two passages of Gemara that reaches a different halachic conclusion. Indeed, one such approach is that of the Gra, who presents a completely different approach to explain the seeming contradiction between the two passages of Gemara. He contends that both passages use shekiyah to mean sunset, and this is the same sunset to which we customarily refer — however, they are not referring to the same tzeis hakochavim. The Gemara in Pesachim that refers to tzeis hakochavim being 72 minutes after sunset means that all visible stars of the firmament can now be seen, a time that the Gra calls tzeis kol hakochavim, literally, when all the stars have come out, whereas the Gemara in Shabbos refers to the time at which three “middle-sized” stars are visible. The Gra concludes that sunset marks the beginning of bein hashemashos, the time when we are uncertain whether it is day or night, with tzeis hakochavim occurring when three “middle-sized” stars are visible. The Gemara in Pesachim that requires 72 minutes until the stars appear is not discussing when the day ends – the day ended much earlier — but was concerned about other laws that are affected by the appearance of a skyful of stars.

According to the Gra’s opinion, once sunset arrives on Friday, it may already be Shabbos, and we therefore refrain from performing any melacha from this time, and consider this time to be already bein hashemashos. In the Gra’s opinion, a baby born after sunset Friday will have his bris performed on Sunday nine days later unless he is born after three “middle-sized” stars appear, in which case his bris will be performed on Shabbos. (In practice, since we are uncertain exactly which stars are called “middle-sized,” we wait a bit longer, see Biur Halacha to 393) According to Rabbeinu Tam, this same baby would have his bris performed on Friday, unless he is born at least 58½ minutes after sunset. If he is born between 58½ minutes and 72 minutes after sunset Friday evening, according to the Gra, his bris is on Shabbos, whereas according to Rabbeinu Tam, his bris will be on Sunday. Both agree that a baby born later than this on Friday evening will have his bris performed on Shabbos.

Mincha tima!

At this point, let us refer to our other opening question: “I have often wondered why my chassidishe brother-in-law davens mincha after sunset, when the Mishnah Berurah rules that one should not daven this late!”

The Gra rules that one should not daven mincha after sunset, since this is already a time at which the previous day may have already passed. Thus, it is already time to daven maariv. However, according to Rabbeinu Tam, one may daven mincha lechatchilah until 58½ minutes after sunset.

How do we rule?

Although in the past there were Torah communities who did not follow the Gra at all, even regarding the onset of Shabbos, today it is universally accepted to consider it Shabbos from sunset on Friday. Many communities follow the Gra’s opinion fully, and do not wait until 72 minutes after sunset on Saturday to end Shabbos. In a responsum on the subject, Rav Moshe Feinstein took great umbrage to this approach, contending that since a large number of Rishonim followed Rabbeinu Tam’s approach, one should act stringently and not end Shabbos until after Rabbeinu Tam’s time is over (Shu’t Igros Moshe, Yoreh Deah 4:17:26). As in all areas of halacha, the reader is encouraged to discuss the shaylah with his or her mara de’asra for a final ruling.

*all names have been changed to protect privacy

Special Tochacha Situations

Question #1: Talkative Boss

“My boss likes to gossip, and much of it is loshon hora. Am I required to tell him that this is prohibited according to halacha?”

Question #2: Admonishing a talmid chacham

“I saw a highly respected scholar talking during the repetition of the shemoneh esrei. Should I say something to him?”

Question #3: Public Tochacha

“I know of situations where great scholars protested in public what people did, embarrassing them publicly. Is this a proper way to observe the mitzvah of tochacha?”

Answer:

In this week’s parsha, Moshe admonishes a Jew for beating his fellow Jew, thus providing ample reason to continue our discussion on the mitzvah of tochacha, the Torah’s requirement to reprove someone for misbehavior. The two previous articles analyzed the basics of tochacha. We learned that the underlying principle of tochacha is the realization that fulfilling Hashem’s mitzvos is not merely an individual’s pursuit – it is a responsibility that I share with all of Klal Yisroel (see Sefer Hamitzvos #205). We are all members of the same people and share a common, collective mission.

In the previous articles, we also learned that, for tochacha to be successful, it must come from sincere caring about the person who has sinned, and should be conveyed in that tone. Tochacha should be presented in a way that is most likely to persuade the wrongdoer to mend his or her ways. We also learned that there are instances in which one should not admonish a sinner, such as when he/she does not realize that the action violates the Torah and it is clear that any reprimand will be ignored. On the other hand, we should note that the Chovos Halevovos (Shaar Cheshbon Hanefesh #17) quotes early sources (Shemos 2:13; Avodah Zarah 4a) that imply that, at times, one is required to protest, even when he knows that the offending party will not listen.

This article will discuss aspects of the mitzvah of tochacha that were not included in the previous essays, and with this information we will be able to answer our opening questions.

Someone who has wronged me

The mitzvah of tochacha applies when I was aggrieved by another person. If someone mistreated me, I may not resent, in silence, what that person did. This attitude violates the Torah’s prohibition of Lo sisna es achicha bilvavecha, “Do not hate your brother in your heart,” meaning, to bear the grudge in silence. Instead, there are two permitted courses of action from which I may choose:

1. I may tell the person that I am upset because he wronged me. This statement qualifies as a form of tochacha.

2. The other option is to forgive the evildoer for his ill-doing. This latter choice is the preferred course of action (Rambam, Hilchos Dei’os 6:9; see also Tosafos, Arachin 16b s.v. Va’anavah).

What is prohibited is for me to continue bearing a grudge silently against the person who perpetrated wrong against me. This is prohibited unless the person has the status of being a rosho, someone viewed as wicked according to halacha.

Repeat offender

In the previous article, we discussed what the halacha is if you see a person doing something wrong for which you have previously rebuked him. Are you required to rebuke him again? The Gemara rules that one is required to rebuke an evildoer repeatedly (Bava Metzia 23a). However, we find a dispute among rishonim whether or not this law applies in all situations when one is required to rebuke an evildoer (see Magen Avraham 608:3; Orach Meisharim, page 159), or whether it applies only to someone with whom you have a very close relationship, such as a sibling or parent (Sefer Chassidim #413).

In a situation when the Torah requires one to reproach the sinner repeatedly, is there no limit at all to how many times one must rebuke him? What if the sinner gets so angry that he curses, or even strikes, the person censuring him? Is the mochiach required to continue reproaching, even though he may be subjecting himself to physical or emotional abuse?

The Gemara cites a dispute among the three great, early amora’im, Rav, Shmuel, and Rabbi Yochanan, concerning the point at which one may refrain from rebuking the sinner. All three amora’im concur that there is a point at which the mochiach should refrain from admonishing. According to Rabbi Yochanan, once the evildoer becomes so upset that he responds with a nasty retort, the mochiach may refrain from further reprimand. Shmuel contends that angering the sinner to this extent is not sufficient reason to stop the censure, but one should continue until the sinner curses the mochiach. Presumably, Shmuel feels that, at this point, nothing is gained by the tochacha, since it is now causing the wrongdoer to sin even more by cursing a fellow Jew. Rav disagrees, contending that even if one is cursed by the sinner, one should continue to rebuke him, until one is concerned that the sinner may become violent (Arachin 16b).

I mentioned above that some authorities contend that one should not repeatedly rebuke anyone with whom one does not have a close relationship. According to this opinion, the dispute of Rav, Shmuel, and Rabbi Yochanan concerns only a close relative or friend who is rebuking, where the halacha is that he should reproach the sinner repeatedly – until the sinner responds either by shouting nastily, by cursing, or by striking, depending upon which opinion one follows. However, according to those who dispute this conclusion and contend that one must repeatedly admonish any sinner, the amora’im are discussing anyone who reproaches a sinner.

Becoming harsh

In the previous article, we learned that one should admonish in a gentle, soft way that conveys the message, “I care for you deeply; this behavior is not in your best interest.” One should never initiate reproach in a harsh manner. However, this halacha applies only in the initial stages of reproaching someone. When the repeated offender’s sin is bein adam lamakom, between himself and Hashem, and positive approaches have been unsuccessful, the authorities rule that one is required to become harsh with the evildoer, even to the point of embarrassing him in public to get him to do teshuvah (Rambam, Hilchos Dei’os 6:8; Sefer Hachinuch #239).

Other limitations

The Rema (Yoreh Deah 334:48) and the Mahari Weill (#157) rule that the Torah does not require one to spend money to fulfill the mitzvah of tochacha. They extend this idea to include that one does not need to be mochiach someone who might hurt you physically or financially. Someone who is being mochiach is not required to endanger himself or lose money to fulfill the mitzvah. (This appears to follow the approach of the Sefer Chassidim that the dispute among amora’im concerning to what extent one is required to be mochiach applies only when one is being mochiach close relatives, but not to others.) An extension of this law is that you are not required to be mochiach someone who might hurt you physically or financially (Rema, Yoreh Deah 334:48; Levush, Yoreh Deah 157:1; see Pischei Teshuvah, Yoreh Deah 157:5; cf., however, Teivas Gomeh, quoted by the above-mentioned Pischei Teshuvah, who disagrees.)

In the same context, the Darchei Teshuvah (157:20) quotes the following question in the name of the Tzemach Tzedek of Lubavitch: In a certain city, the local physician was a non-observant Jew. The question was whether there was a mitzvah to admonish him for his sins, knowing that such admonishment might cause him to relocate. This would endanger the populace, since they would now be without a physician to treat them. The Tzemach Tzedek ruled that they are not required to admonish him, since the result might imperil the community.

Admonishing the boss

At this point, we can address the first question we asked above:

“My boss likes to gossip, and much of it is loshon hora. Am I required to tell him that this is prohibited according to halacha?”

If the only concern here is the mitzvah of tochacha, it seems that there is no requirement to admonish one’s employer, if you are concerned that, as a result, he may fire you. However, there is probably a more serious question here: that of hearing loshon hora, since this boss probably enjoys sharing his gossip with you. There is discussion about such a shaylah in the sefer Chofeitz Chayim (Hilchos Loshon Hora 6:5). I refer the reader who has a specific question on this topic to his or her own rav or posek for a decision.

Tacit approval

Even though one is not required to admonish the evildoer, one should be careful not to imply that his actions are acceptable. This would violate the prohibition of chanufah, usually translated as flattery, which is a very serious Torah violation.

The story of Agrippas

The following story demonstrates how serious this prohibition is. King Agrippas, who reigned towards the end of the Second Beis Hamikdash, was an excellent ruler, highly respectful of the Gedolei Torah of his era and committed to the observance and spreading of Torah and mitzvos. Notwithstanding his many good qualities, calling himself “King” over the Jewish People violated halacha, since he was descended from gentile slaves, and the Torah states, lo suchal laseis alecha ish nachri asher lo achicha hu, “You may not place over yourselves a gentile who is not your brother” (Devarim 17:15). Agrippas, himself, realized that he was not permitted to be king, for when he observed the hakheil ceremony in the Beis Hamikdash on Chol Hamoed Sukkos (see Devarim 31:10-13 and Mishnah, Sotah 41a), he stood up while reading the Torah rather than read it while sitting, since sitting in the Azarah section of the Beis Hamikdash is a special privilege permitted only to kings who are descendants of David Hamelech. When Agrippas reached the words of the Torah that prohibit appointing a king who is not a Jewish native, his eyes began to tear, for he realized that he, himself, was violating this law. At that moment, the Sages present told him, “Don’t worry, Agrippas. You are our brother,” thus approving his reign, in violation of the Torah.

The Gemara (Sotah 41b) teaches that the leaders of the Jews should have been destroyed for violating chanufah, and that, at that moment, many catastrophic occurrences befell the Jewish people, resulting in extensive loss of life. Although, under the circumstances, the Sages were not required to admonish Agrippas for being king, they were forbidden to give the impression that they approved of his being a monarch. They were required to remain silent (Tosafos, Sotah 41b s.v. oso), which would constitute a respectful disapproval.

The Chovos Halevovos (Shaar Cheshbon Hanefesh #17) expands this concept. Although we have enumerated many instances where one is not obligated to be mochiach, in each of these situations one is required to internalize strong disapproval of the violations that one observes. The Chovos Halevovos bases this idea on the words of David Hamelech: I hated the gathering of evildoers (Tehillim 26:5).

Admonishing a talmid chacham

If someone who is not scholarly sees a talmid chacham do something that appears to be halachically incorrect, what is the proper thing for him to do? Does the non-scholarly person have a mitzvah to admonish the Torah scholar for his lapse?

The halacha is that one is required to rebuke the talmid chacham, and that even a disciple has a responsibility to be mochiach his own rebbe (Bava Metzia 31a). There are halachic details for giving such tochacha. The easiest approach is for the student to ask his rebbe respectfully what is the halacha in the situation (that was ostensibly violated). In this way, the disciple neither acts nor speaks disrespectfully since he did not tell his rebbe that he had committed a violation. If, indeed, the rebbe was in violation of a halacha, it has now been brought to his attention in an appropriate way. It also may be true that the rebbe is aware of opinions who permit the action under the specific circumstances involved.

The Gemara (Shabbos 55a) provides an example of this: Rav Yehudah was listening to the Torah lecture of his rebbe, the great amora Shmuel, when a woman entered and began screaming at Shmuel. Shmuel ignored the woman and continued his teaching. Rav Yehudah turned to his master, asking him: Does the master not accept the teaching of Mishlei (21:13): “One who closes his ears from the outcry of the poor will not be answered when he calls out (in prayer).” If Shmuel felt that the verse in Mishlei did not apply in his circumstance, he could have explained to his disciple why this is so.

There is an interesting sequel to this story, based on the following Talmudic passage. The amora, Rav Yosef the son of Rav Yehoshua, had an out-of-body experience in which he saw elyonim lematah vetachtonim lemaaleh, meaning that he had a vision of olam haba and saw that things there are often the reverse of how they appear in this world. Rabbeinu Chananel records that there was an oral tradition from the ge’onim, passed from one generation to the next, that what Rav Yosef saw was that in olam haba Shmuel was studying and imbibing Torah from Rav Yehudah, notwithstanding the fact that, in this world, Rav Yehudah was Shmuel’s disciple. In the world to come, the great amora Shmuel is treated as Rav Yehudah’s disciple, because of this one instance in which Rav Yehudah taught Shmuel the proper way to act (Tosafos, Bava Basra 10b s.v. Elyonim).

Here is another example:

A talmid sees his rebbe speak during the repetition of the shemoneh esrei. It is correct for the talmid to ask his rebbe: “Didn’t we learn that one may not talk during the chazaras hashatz?” Framing the rebuke as a question is milder than saying to his rebbe directly: “It is forbidden to talk during chazaras hashatz.”

As we noted above, someone who sees a person talking during chazaras hashatz is required to feel tremendous love for this person, so much so that it pains him to realize that the talker will be punished for his misdeed. Then, the mochiach tries to figure out what will be the most effective way of communicating both these feelings and the message to the wrongdoer.

Did the talmid chacham do teshuvah?

The Gemara shares with us an interesting insight: One who observes that a talmid chacham did something wrong should assume, by the next day, that the talmid chacham has already done teshuvah for his sin (Brachos 19a). Although it is possible that, in the passion of the moment, the talmid chacham may have sinned, he will certainly regret his failure afterwards and will do teshuvah for it.

The halachic authorities ask the following question: Does this insight, that a day after witnessing his misdeed one should assume that the talmid chacham has already done teshuvah, have ramifications as to whether one should admonish the talmid chacham when one next sees him? Should one assume that the talmid chacham has already performed a complete teshuvah and that admonishing him at this point is no longer necessary or correct?

We find a dispute among the acharonim concerning this question. Some rule that one should assume that the talmid chacham did teshuvah already, and that there is no more reason to be mochiach him (Yad Ha’ketenah, as explained by Zeh Hashaar and Shevilei Chayim 4:20). Others contend that one should be mochiach, unless one knows that the talmid chacham has already done teshuvah (Be’er Mayim Chayim, Hilchos Loshon Hora 4:18).

Conclusion

The Gemara tells us the following pithy statement: A talmid chacham is beloved by the other residents of his city not because he is so wonderful, but because he fails to admonish them on heavenly matters (Kesubos 105b). As we mentioned above, when admonishing people for not being careful about matters between man and fellowman, one rebukes only in private. However, when one needs to reproach people for violating their responsibilities to Hashem, one may be required to rebuke them even in public.

An Eruv Primer

This week’s parsha includes one of the major sources for prohibiting carrying on Shabbos, which provides a good opportunity to study some of the complicated halachos of carrying on Shabbos and the halachos of Eruvin. We cannot do justice to this vast and complicated topic in one short article. However, I will attempt to provide an introduction to some of the issues involved.

The Torah prohibits carrying from an enclosed area, called a “reshus hayachid,” to a public, non-enclosed area, a “reshus harabim,” or vice versa. It also prohibits carrying something for a distance of four amos (about seven feet) or more inside a reshus harabim. For our purposes, we will loosely define reshus hayachid as an area completely enclosed by walls, doors, or a combination of both, and a reshus harabim as an unenclosed area at least sixteen amos wide (about twenty-eight feet) meant for public use or thoroughfare. Many additional technical details define a reshus hayachid and a reshus harabim, some of which will be discussed later in this article.

A non-enclosed area that does not qualify as a reshus harabim is categorized as a “karmelis.” According to Torah law, one may carry inside, into and from a karmelis. However, Chazal ruled that a karmelis must be treated with the stringencies of both a reshus hayachid and a reshus harabim. This means that under most circumstances it is forbidden to carry inside, into, or from any area that is not completely enclosed. This is the way we are familiar with observing Shabbos – one does not carry in any unenclosed area. (I will later point out a significant halachic difference between a reshus harabim and a karmelis.)

Chazal also forbade carrying from one reshus hayachid to another when they are not owned by the same person. Thus, I may not carry on Shabbos from my house to my neighbor’s, even if both properties are completely enclosed. If both areas are owned by the same person, I may carry from one house to the other, as long as I don’t pass through an unenclosed area or an area owned by someone else. I may carry from my house to my neighbor’s if we make an “eruv” which allows the two areas to be treated as if they have common ownership.

BUT I THOUGHT “ERUV” REFERS TO A PHYSICAL STRUCTURE?

The word eruv refers to several different conventions instituted by Chazal. We just mentioned the “eruv chatzeiros” that permits carrying between different areas that are enclosed but have separate ownerships. We create this eruv by making the property owners partners in a loaf of bread or a box of matzohs, which for these purposes is sufficient to consider the properties jointly owned. Once this eruv chatzeiros is made, one may carry from one residence within the eruv to another, since the eruv gives them common ownership. Common practice is to make the eruv with matzohs since they last a long time. Custom is to renew the eruv every Erev Pesach so that it is not forgotten.

One must make sure that the matzohs remain edible. I know of instances where the eruv was forgotten about and long afterwards it was discovered that the matzohs were no longer edible. Who knows how long people were carrying in a prohibited way because no one had bothered to check the matzohs!

WHAT IF THE AREA IS NOT ENCLOSED?

Our discussion until now has been dealing with an area that is already fully enclosed. However, someone interested in carrying in an area that is not fully enclosed must close in the area before making an eruv chatzeiros. The most common usage of the word eruv is in reference to this enclosure.

HOW DOES ONE ENCLOSE AN AREA?

The area must be completely enclosed by halachically acceptable “walls” and “doors.” Walls, buildings, fences, hills, and cliffs can all be used to enclose an area. However, when using structures and land features that already exist, invariably there will still be gaps between the structures that must be filled in to complete the enclosure.

The most common method to bridge the gaps is to make a “tzuras hapesach.” A tzuras hapesach vaguely resembles a doorway, consisting of two sideposts and a lintel that passes over them, which are the basic components of a doorway. According to halacha, a tzuras hapesach is considered a bona fide enclosure. Thus, if all gaps between the existing “walls” are “closed” with tzuros hapesach, the area is regarded as fully enclosed.

Some opinions allow small gaps to remain within the eruv’s perimeter without a tzuras hapesach. Many eruvin in North America rely upon this leniency, whereas in Eretz Yisrael the accepted practice is not to.

A COMMON PROBLEM

The halacha is that a planted field the size of 5000 square amos (approximately 14,000 square feet) within an enclosed area invalidates the ability to carry within the eruv. Similarly, an area of this size that is so overgrown that one would not walk through it will invalidate an eruv. This is a very common problem that is often overlooked. Although every responsible eruv has mashgichim to check the perimeters of the eruv, there is also a need to check periodically within the eruv to see that no large areas are being planted or have become this overgrown. I know of numerous instances where, unfortunately, this problem existed for a while before it was detected.

OTHER DETAILS OF TZURAS HAPESACH

There are myriad details of how to make a tzuras hapesach, far more than can be detailed here. For example, most authorities accept the use of a wire for the lintel of a tzuras hapesach, although many opinions require it to be extremely taut (see Mishnah Berurah 362:66 and Shaar Hatziyun). Most eruvin use telephone wires as the “lintel” of the tzuras hapesach, although there are poskim who prohibit them (see Shu’t Yeshuos Malko, Orach Chaim #20). When telephone wires are used, posts or boards are placed directly below existing telephone wires, with care taken that the wire passes directly over the post. The lintel must pass directly above the sideposts, although the posts are not required to be tall enough to reach the “lintel” (Eruvin 11b). For example, if the wire used as lintel is twenty feet high and the side posts are only four feet tall, this is perfectly legitimate as long as the wire passes directly above the sideposts and that nothing intervenes between them. To guarantee that the wire remains above the posts, it is a good idea to use fairly wide “posts” and to periodically check that the wire is still directly above the posts. From personal experience I can tell you that as the posts or the telephone polls settle it is not unusual that they shift so that the post is no longer under the wire. This is also something that eruv mashgichim must periodically check but, unfortunately, often do not.

The tzuras hapesach is invalid if something intervenes in the gap between the top post and the side post. Thus, it is invalid to rest a side post against the side of a house and attach the top post to its roof, if any overhang of the roof extends below the lintel and above the side post. Similarly, the eruv is invalid if a sign intervenes between the sidepost and the wire being used as lintel.

I mentioned above that there is a major difference in halacha between a reshus harabim and a karmelis. A tzuras hapesach can only be used to enclose an area that is a karmelis where the prohibition against carrying is only rabbinic. It cannot be used to permit carrying in a reshus harabim where it is forbidden to carry min haTorah (Shulchan Aruch, Orach Chayim 364:2).

This leads us into our next discussion.

CONTROVERSIAL ERUVIN

A strange phenomenon of hilchos eruvin is that although Chazal created the concept of eruv to facilitate peace among the Jewish people, probably no other mitzvah has been involved in so much controversy. Why is this?

The details of hilchos eruvin are extremely complicated and often subject to dispute. It is not unusual to find a situation where one rav forbids a certain eruv min HaTorah, while another rav rules that it is perfectly kosher. Although both decisions are based on the same Gemara and halacha, one posek condemns as chilul Shabbos what the other considers a mere chumrah or less.

This is not a new phenomenon. Let us share a halachic discussion that is over a thousand years old.

600,000 PEOPLE

There is a very old dispute whether a reshus harabim (min haTorah) only exists if the area is used by at least 600,000 people, just as the reshus harabim of Klal Yisrael in the desert was used by 600,000 people, the members of the Jewish nation. (Indeed, the question is raised that a reshus harabim should require several million people because the 600,000 count only men over twenty and did not include the women and children.)

Rashi (Eruvin 59a) writes that only an area with this number of people constitutes a reshus harabim that cannot be enclosed with a tzuras hapesach. This excludes all the towns and cities inhabited by Jews from the Middle Ages until fairly modern times. They did not have 600,000 people and could therefore be enclosed by a tzuras hapesach. However, many rishonim disagree with Rashi and rule that any street or marketplace sixteen amos wide is a reshus harabim and cannot be enclosed with a tzuras hapesach. This issue is made more confusing since the Shulchan Aruch in Orach Chayim 345:7 rules strictly, whereas in 303:18 he appears to rule leniently. Many major authorities follow the lenient interpretation (Magen Avraham; Taz in 345), and it was upon this basis that most Eastern European communities constructed eruvin. However, according to most authorities this lenience cannot be used as the basis to permit an eruv today since most large Jewish communities are in places with more than 600,000 people.

A FIGHT OVER AN ERUV

In the thirteenth century, Rav Yaakov ben Rav Moshe of Alinsiya wrote a letter to the Rosh explaining why he forbade a tzuras hapesach eruv in his town. In his response, the Rosh replied that Rav Yaakov’s concerns were groundless and that he should immediately construct an eruv. Subsequent correspondence reveals that Rav Yaakov did not change his mind and still refused to erect an eruv in his town. The Rosh severely rebuked him for this recalcitrance, insisting that if he (Rav Yaakov) persisted he would be placed in cherem. The Rosh also ruled that Rav Yaakov had the status of a zakein mamrei, a Torah scholar who rules against the decision of the Sanhedrin, which is a capital offense (Shu’t HaRosh 21:8)! All this demonstrates that heated disputes over eruvin are by no means a recent phenomenon.

OVER-RELYING ON AN ERUV

Although there are many obvious advantages to having a kosher eruv, we should always be aware that there are also drawbacks. One major drawback is that people become unprepared if the eruv goes down one week. Suddenly, they cannot take their reading glasses to shul and their plans of pushing the stroller so they can eat the Shabbos meals at someone else’s house are disrupted.

Another disadvantage is that people become so used to having a eruv that they no longer pay serious attention to the prohibition against carrying. Children raised in such communities, and even adults who always lived in cities with an eruv, sometimes hardly realize that there is any prohibition against carrying.

In Israel, where virtually every town has an eruv, the assumption that there is always an eruv can be a tremendous disadvantage as the following story illustrates:

A moderately-learned frum Israeli moved to an American city with no eruv. He was hired by a yeshiva as cook and was responsible for the everyday kashrus of the yeshiva’s kitchen. The first Shabbos on his job, the new cook went for an afternoon stroll with his family, baby carriage and all. This raised a whirlwind in the yeshiva — people were shocked that they had entrusted the yeshiva’s kashrus to someone who openly desecrated Shabbos! Only later was it clarified that the cook was unaware that a city might not have an eruv. Living his entire life in cities with an eruv, he had automatically assumed that every city with a Jewish community had such a fixture!

In conclusion, we see that disputes among poskim over eruvin are not recent phenomena. In practice, what should an individual do? The solution proposed by Chazal for any such shaylah is “Aseh lecha rav, vehistalek min hasafek,” “Choose someone to be your rav, and remove yourself from doubt.” The rav can guide you to decide whether it is appropriate for you to carry within a certain eruv, after weighing factors including what heterim were used in the eruv’s construction, care of eruv maintenance and family factors. The psak and advice of one’s rav can never be underestimated!

More on Tochachah

Question #1: Un-coifed Colleague

“A colleague at work who does not cover her hair asked me what I think of her new hairstyle.  How should I answer?”

Question #2: Wayward Classmate

“I met my former classmate, and I see that she is no longer observing the level of tzeniyus that we did when we were together in seminary. Must I say something to her about this?”

Question #3: The Davening Talker

“I find it disturbing to see people talking or whispering during chazaras hashatz, the repetition of the tefillah, but I must admit that sometimes I’ll answer someone who asks me something during that part of the davening. Do I have a responsibility to tell people that they should not talk during chazaras hashatz?”

Answer:

In this week’s parsha, Yaakov avinu admonishes his sons prior to his passing. Last week, we noted that when Yosef said ani Yosef, ha’od avi chai? “I am Yosef. Is my father still alive,” he was admonishing his brothers for their inconsistent behavior. This provided an to discuss the laws of tochachah, which continues in the present article.

As I mentioned last week, the underlying principle of tochachah is the realization that fulfilling Hashem’s mitzvos is not merely an individual pursuit – it is a responsibility that one shares with all of Klal Yisroel (see Sefer Hamitzvos #205). We also learned that the mitzvah of tochachah applies whether the sin perpetrated is between man and his fellowman or whether it is between man and Hashem (Sefer Hachinuch #239). In addition, we noted that the most basic rule of tochachah is that the mochiach, the person who is reproving, must truly care for the offender.

On the other hand, the halachah is that when it is clear that a sinner will ignore any reprimand, one should not attempt to admonish him. In these instances, censure will cause the evildoer to sin more, rather than to do teshuvah, and, therefore, it must be avoided. However, only when it is absolutely certain that the sinner will not listen, is there no mitzvah either to rebuke or to protest. As long as the possibility exists that the sinner might listen, one is required to rebuke him.

Someone who rejects Torah

There is no mitzvah to admonish an evil person who hates those who observe Torah (Tanna debei Eliyahu Rabbah, Chapter 18). When the Torah presents this mitzvah, it states, hochei’ach tochiach es amisecha, “surely, rebuke your ‘fellowman,’” but the word used, amisecha, refers to someone who observes Torah and mitzvos. The Mishnah Berurah rules that there is no mitzvah to reproach someone who desecrates Shabbos in public or who eats non-kosher when he has kosher food readily available – such a person is beyond the pale of being called amisecha. The Mishnah Berurah is uncertain whether there is a mitzvah to admonish someone who observes Shabbos, but keeps kosher only when it is convenient to do so, or someone who observes Shabbos in public, but desecrates it in private (Biur Halachah, 608:2 s.v aval; however, see Shu’t Avnei Neizer, Yoreh Deah #461, who understands that, in all these instances, there is still a mitzvah of tochachah).

 

Rebuking a Torah scholar

There is a dispute among acharonim whether admonishing a talmid chacham applies after he did the aveirah. Perhaps one should assume that he did teshuvah already and that, therefore, there is no more reason to be mochiach him. This latter approach is that of the Yad Haketenah as explained by the Zeh Hashaar and the Shevilei Chayim 4:20. The Be’er Mayim Chayim ((Hilchos Loshon Hora 4:18) does not agree and contends that one should be mochiach, unless one knows that the talmid chacham did teshuvah.

Mutav sheyihyu shogagin

Last week, we learned that one should not reprimand someone who commits a violation that he is unaware is forbidden, when one is certain that he will continue after the prohibition is called to his attention. This is usually the proper approach to follow when a sizable population does something that is clearly forbidden (Biur Halachah, 608:2 s.v. Vedavka, quoting Shu’t Me’il Tzedakah #19 and Machatzis Hashekel).

What if he asks?

Many years ago, I was among a group of married women who, although observant, did not cover their hair. Because of the halachah of mutav, I was not permitted to discuss this question with the group. However, when a woman from this group asked me to explain the halachah, I was required to answer the halachah accurately and in full detail (Shu’t Igros Moshe, Orach Chayim 2:36). The halachah of mutav applies only in a situation of tochachah. Furthermore, the Maharshal demonstrates that one may never distort a detail of the Torah, since this is considered falsifying the Torah. He rules that this is considered a severe enough prohibition of the Torah that it is yaharog ve’al yaavor – one is required to give up one’s life rather than to distort even one law of the Torah (Yam shel Shlomoh, Bava Kama 4:9). Falsifying the Torah is equivalent to denying the entire Torah, which is why one is required to sacrifice one’s life, rather than misrepresenting a Torah truth.

Probably won’t listen

Should one reproach an ill-doer when one knows that he probably will not listen? The halachah of mutav applies only when one is certain that the offending party will not listen. When one thinks that he will probably not listen, but it is not certain, one is required to admonish the offender (Tosafos, Bava Basra 60b s.v. Mutav).

Clearly in the Torah

Are there any instances when tochachah should be given and the rule of mutav does not apply, even when the person doing something forbidden will not listen to tochachah? Yes, there are.

The rishonim dispute whether the law of mutav applies even when the prohibition is written unmistakably in the Torah. Many rishonim contend that when the Torah overtly prohibits the activity, there is an exception to the law of mutav. In this instance, these authorities contend that one is required to rebuke those who violate this prohibition, even when the lack of concern about the prohibition is quite common. Others contend that when you are certain that the wrongdoer will ignore the admonition, you are not required to rebuke, even when the prohibition is distinctly delineated in the Torah. (Both opinions are quoted in Biur Halachah 608:2 s.v. Aval.) The Rema (Orach Chayim 608:2) concludes that one is required to admonish, in accordance with the first opinion.

Some authorities contend that this law applies only when we are in a position to stop the evildoers from their errors, but that there is no requirement to protest when we cannot prevent sinners, even when the prohibition is written overtly in the Torah (Birkei Yosef, Orach Chayim 608:4). Others contend that, under these circumstances, one will not be punished for not having protested, but there is still a mitzvah to protest the misdeed (Magen Avraham 608::3, quoting Semaq).

Maybe it is clear

Assuming that we follow the Rema and rule that one is always required to rebuke someone violating a prohibition that is explicitly expressed in the Torah, there is a further dispute among authorities whether the rule of mutav applies when it is questionable if the sinner will be violating a Torah law, such as someone who violates Shabbos during the bein hashemashos period when it is questionable if Shabbos has already begun. The Yam shel Shlomoh (Beitzah 4:2) rules that the rules of mutav apply, whereas the Machatzis Hashekel (on Magen Avraham 608:2) is uncertain whether mutav applies in this situation.

Ruled in error

Similarly, there is no mitzvah to admonish someone who received a clearly erroneous ruling permitting a particular activity, since he will not listen. However, once the person who issued the decision recanted it, Rav Moshe Feinstein rules that there is now a mitzvah of tochachah, since the possibility exists that the errant party may now listen to reason or re-ask the question (Shu’t Igros Moshe, Even Ha’ezer 4:61:2 s.v.Ulefi zeh).

Repeat offender

What is the halachah if you see someone do something wrong for which you have previously rebuked him in a soft, kind way, as described above. Are you required to rebuke him again?

The Gemara rules that one is required to rebuke an evildoer repeatedly (Bava Metzia 23a). Nevertheless, we find a dispute among rishonim whether or not this law applies in all situations where one is required to be mochiach. The Sefer Chasidim explains that this Gemara is discussing someone with whom you have a very close relationship, such as your brother or parent. Such a person will not begin to hate you if you admonish him repeatedly for his sinful behavior, and, therefore, there is no limit to the number of times that you must rebuke him. However, in the opinion of the Sefer Chasidim, one should not admonish repeatedly someone with whom there is not such a close relationship — out of concern that repeating the rebuke may cause him to hate you (Sefer Chasidim #413, quoted by Magen Avraham 608:3).

It appears that most authorities do not accept this distinction of the Sefer Chasidim, but rather rule that whenever I have a mitzvah to rebuke someone, I must do so repeatedly (see Magen Avraham 608:3; Orach Meisharim, page 159).

Who is a true friend?

At this point, we can address one of the questions we asked above: “I met my former classmate, and I see that she is no longer observing the level of tzeniyus that we did when we were together in seminary. Must I say something to her about this?”

Under most circumstances, one is required to think of the most effective way that would get the classmate to realize that she is harming herself, and to figure out how to present this to her in an effective and loving fashion. Even if one is unsuccessful, the mitzvah of tochachah is fulfilled.

Upon this basis, we can appreciate the following statement of Chazal:

If you have two groups of friends, one which praises you and the other which admonishes you, love the admonishers and despise those who praise you, because the admonishers will bring you to eternal life (Avos derabbi Nosson 29:1, quoted in Shaarei Teshuvah 3:292).

Straighten yourself first

What is the halachah if I see someone do something wrong, but I know that I myself sometimes slip and violate this law? Does my somewhat lackadaisical attitude towards this halachah exempt me from the requirement of reproaching someone else for its violation?

The halachah here is very straightforward: I cannot effectively rebuke someone for something that I myself violate, but, at the same time, this does not exempt me from the requirement of reproaching him. As we are all aware, one cannot influence someone else to be careful about behavior that one does not, himself, observe. Therefore, one has no choice but to stop his own incorrect behavior, and then, after one has done teshuvah for it, one should be mochiach the person who is still violating it. The Gemara records this ruling in the following pithy way: Straighten out yourself, and then proceed to straighten out others (Sanhedrin 18a). Actually, this idea predates the Gemara: The prophet Tzefaniah 2:1 had already pointed out that one has a responsibility to straighten out his own actions, so as to be able to reproach others for their shortcomings.

At this point, we can address the third question raised at the beginning of our article:

“I find it disturbing to see people talking or whispering during chazaras hashatz, the repetition of the tefillah, but I must admit that, sometimes I’ll answer someone who asks me something during that part of the davening. Do I have a responsibility to tell people that they should not talk during chazaras hashatz?”

The halachah is very clear: The individual asking must work on himself not to talk during the chazaras hashatz, both because of the halachah that requires this and because of the mitzvah of tochachah that he violates when he is unable to reproach people for this transgression.

Tochachah for gentiles?

We now understand why the mitzvah of the Torah does not include a commandment to rebuke gentiles. That some prophets were instructed to admonish the gentiles for their ill behavior was not part of the Torah’s regular mitzvah of tochacha, but a special commandment that these prophets received as part of their prophecy.

Conclusion

As I mentioned above, the basis of the mitzvah of tochachah is that my role in observing mitzvos is as a member of Klal Yisroel –and that I carry responsibility for my brethren at all times. It is insufficient for me to feel that I am minding my own garden when there are other Jews who are distant from our Father. I should always think of ways to help them return to the protective guidance of Hakadosh Baruch Hu.

Essentials of Tochachah

Question #1: Cross-gender Tochachah

“The Mishnah states that a man should not converse unnecessarily with a woman. At my workplace, there is a girl who is ostensibly observant, but I see inconsistencies in her observance level. Am I supposed to try to help her become more committed?”

Question #2: Ignored Admonition

“Is there a mitzvah to admonish someone when I know that he will ignore me?”

Question #3: Admonisher or Enemy?

“I know that there is a mitzvah to be mochiach, but I am always concerned that I will make these people into my enemies. Should I be concerned?”

Answer:

In this week’s parshah, Yosef reveals himself to his brothers, by saying the immortal words, ani Yosef, ha’od avi chai? “I am Yosef. Is my father still alive?” According to many commentaries (Ha’amek Davar, based on Chagigah 4b), Yosef intended these words as admonition, tochachah, to his brothers: Why are you suddenly concerned about how your father will react to Binyomin’s disappearance, when you were not concerned how he would react to my disappearance?[1] This provides an excellent opportunity to discuss the laws of tochachah, the requirement to reprove someone for misbehavior, a frequently misunderstood mitzvah.

The underlying principle of tochachah is the realization that fulfilling Hashem’s mitzvos is not merely an individual pursuit – it is a responsibility that I share with all of Klal Yisroel (see Sefer Hamitzvos #205). In explaining the reason for the mitzvah of tochachah, the Shaarei Teshuvah (3:19) notes that a devoted servant or employee performs his own work diligently and also tries to see that his co-workers do their jobs conscientiously. We are all members of the same people and share a common, collective mission.

The mitzvah of tochachah applies whether the sin perpetrated is between man and his fellowman or whether it is between man and Hashem (Sefer Hachinuch #239). Furthermore, the mitzvah applies equally to men and women – both have a requirement to be mochiach, and both should be admonished when they violate the Torah (Sefer Hachinuch #239). In addition, tochachah is a mitzvah that one should fulfill cross-gender; that is, a man is required to be mochiach a woman, and a woman is required to be mochichah a man. We can demonstrate this principle through the following passage:

Eili and Channah

The pasuk describes how Channah went to Shiloh, the location of the Mishkan, at the time the primary religious headquarters of the Jewish people, and prayed to Hashem that she merit conceiving and bearing a child. She prayed at great length to Hashem, and Eili was watching her mouth. Channah spoke in an undertone, with only her lips moving but her voice inaudible, and Eili thought that she was intoxicated. So, Eili told her, “For how long will you continue to be intoxicated? Remove your wine from yourself!” Channah responded, saying, “No, my lord, I am a woman who is greatly distressed. Wine and other intoxicating beverages I have not imbibed. I am pouring out my soul before Hashem (Shmuel I, 1:12-15).

Based on Eili’s reproof of Channah, the Gemara derives that the mitzvah of tochachah includes not only admonishing someone for sinning, but even for inappropriate behavior that is not sinful (Brachos 31b, as explained by Tosafos ad loc.) After all, Eili was admonishing her not for doing something specifically sinful, but for behaving in an inappropriate manner.

The cardinal rule of tochachah

The most basic rule of tochachah is that the mochiach, the person who is reproving, must truly care for the offender. Being sincerely concerned about the other person’s welfare is a condition which must be met, if the reproof is to be successful. Thus, tochachah is an extension of Ahavas Yisroel, loving our fellow Jew. The Rambam (Hilchos Dei’os 6:7) writes that the mochiach should explain that he is helping the offender earn a greater share in olam haba. To quote him: “One who sees his friend sinning or following a lifestyle that is not good has a mitzvah to influence him to return to the proper way and to inform him that he is harming himself… The one who rebukes must do so privately, with a pleasant manner and a soft voice.”

So, how do I influence someone if I do not love him? The answer is that I am required to teach myself to love him, both to observe the mitzvah of Ahavas Yisroel and in order to fulfill the mitzvah of tochachah.

That tochachah must be performed in a pleasant manner is again borne out in the following Talmudic passage: the Mishnah (Shabbos 34a) rules that shortly before Shabbos begins, a man is required to ask his family members whether all maasros and challah portions have been separated and whether the eruv has been set up. He then instructs them to kindle the lights in honor of Shabbos. The Gemara makes a point of noting that one should say all these things in a soft voice. These instructions are, in a way, very similar to admonishing one’s family members.

One size does not fit all

Prior to admonishing someone, the mochiach should analyze carefully what will be the most effective way to influence the offender. The tochachah should be tailor-made to the person receiving it and presented in a way that it is most likely to influence him or her to change. One should use stories, parables, and/or logical proofs, depending on what will speak most convincingly to the heart of the person one seeks to persuade (Sefer Chassidim #5).

Example:

Yitzchak is aware that he is required to influence his next-door neighbor, Benny, to be more observant. Yitzchak realizes that, to draw Benny closer to mitzvos, Yitzchak must sincerely care about him. Thus, Yitzchak’s first step is to truly care for Benny and to use every opportunity to develop a friendship. Once Benny feels that Yitzchak truly cares, he will be open to listening to what his friend has to say. At this point, Yitzchak can begin to explain the benefits Benny reaps by observing mitzvos carefully.

We can now understand the following, somewhat rhetorical, declaration of the Gemara: Rabbi Elazar ben Azaryah said: I would be astounded to learn that there is anyone in our generation who knows how to admonish” (Arachin 16b).

Notwithstanding this observation, the halachic authorities rule that there is still a mitzvah of tochachah, and that one is required to strive to observe it (see Le’reiacha Kamocha pg. 286, quoting numerous authorities).

It is axiomatic that admonishing someone should not embarrass him (Arachin 16b; Toras Kohanim to Parshas Kedoshim). The recipient of the tochachah must be taught that it is in his best interest to improve, something that cannot usually be accomplished in an antagonistic interaction.

On the other hand…

Whoever has the ability to protest the misdeeds of members of his household and fails to do so is accountable for what they have done. The same is true for someone who could protest the misdeeds of the residents of his city and even the entire world and fails to do so. Therefore, the household of the Exilarch (Reish Galusa) is accountable for the misdeeds of the entire world (Shabbos 54b). Similarly, the entire Jewish people were punished in the days of Yehoshua for the crime of one individual, Achan (Yehoshua 22:20). Again, we find that the Kohen Gadol was responsible for the entire Jewish people. If one man sins, the entire nation will be punished, because of their failure to reproach him (Shaarei Teshuvah 3:72).

However, someone who admonished the evildoer appropriately has fulfilled the mitzvah of tochachah and will not be punished for the sinner’s evil deeds (Shaarei Teshuvah 3:72; Sefer Chasidim #5). To quote the Navi, Yechezkel: Because you warned the evildoer to repent from his way, even though he did not repent – he will die for his sin, but you have saved your own life (Yechezkel 33:9).

Tochachah that will be ignored

However, the halachah is that when it is clear that a sinner will ignore any reprimand, one should not attempt to admonish him, as it says in Mishlei (9, 8): Do not rebuke a scoffer, lest he come to hate you; rebuke a wise man, and he will love you. As the Gemara expresses this idea: Just as it is a mitzvah to say something that will be heeded, so it is a mitzvah to refrain from saying that which will be disregarded (Yevamos 65b). In these instances, censure will cause the evildoer to sin more, rather than to do teshuvah, and, therefore, it must be avoided.

Who qualifies as a scoffer?

This question is discussed in a different passage of Gemara (Shabbos 55a), where we find the following conversation:

Rabbi Zeira said to Rabbi Simon: “The master should chastise the members of the Reish Galusa’s household.”

Rabbi Simon responded: “They will not listen to me.”

To this, Rabbi Zeira retorted: “Even if they will not listen, admonish them.”

Rabbi Zeira then quoted an Aggadic passage, in which a conversation transpired between Midas Hadin, the attribute of justice, and Hashem. At one point in this “conversation,” Midas Hadin challenged Hashem to punish the righteous for not protesting the evildoings of the wicked. Hashem answered: “I know for certain that even had the righteous protested, the wicked would not have listened.” To this, Midas Hadin retorted: “You knew that the wicked would not have listened. But how did the righteous people know?” And since the righteous had no way of knowing that the evil would not listen, they should be punished for not having attempted to influence them.

We can therefore conclude that only when it is absolutely certain that the sinner will not listen is there no mitzvah either to rebuke or to protest. However, as long as the possibility exists that the sinner might listen, one is required to rebuke him.

Mutav sheyihyu shogagin

There are other instances when one should not rebuke someone who is sinning. This is when one is certain that the sinner will not change after being admonished and, also, he may not know that the activity is forbidden (Sefer Chasidim #413). This halachic status is called Mutav sheyihyu shogagin ve’al yihyu meizidin, “Better that they sin out of ignorance than that they become intentional sinners” (Beitzah 30a; Bava Basra 60b). For brevity’s sake I will refer to this status as “mutav.”

In this situation, the tochachah will probably accomplish only that the person will now be sinning intentionally, instead of out of a lack of knowledge. Since the result of the reproach is not constructive, it should be avoided.

The law of mutav, better that they sin unintentionally than intentionally, is true even when the prohibition is quite clear and could easily be discovered by the sinner. In other words, the sinner is considered shogeig, uninformed that what he is doing is forbidden, only because he does not want to know the truth. For example, even when all halachic authorities discuss the matter and prohibit the activity, the sinner is still considered one who acted out of ignorance rather than with intent. One should avoid telling him of his error when one assesses that knowledge of the sin will not affect his behavior.

This background allows us to understand a passage of Gemara that otherwise seems extremely strange:

A person should always live in the place where his rebbe does, for as long as Shimi ben Geira [Shlomoh Hamelech’s rebbe] was alive, Shlomoh did not marry the daughter of Pharoah. [Rashi notes that the verse mentions Shlomoh marrying Pharoah’s daughter immediately after it mentions Shimi’s death, see Melachim I, 2:46 – 3:1.] However, there is a beraysa that says that one should not live in the place of his rebbe. [Thus, we have two halachic statements that seem to say diametrically opposite ideas.] These two statements do not disagree. One is discussing someone who listens to the rebuke of his rebbe and therefore being proximate to his rebbe will prevent him from sinning. The Beraysa is discussing someone who does not listen to his rebbe (Brachos 8a).

As Rashi explains, someone who does not listen to his rebbe is better living distant from his rebbe, so that he is considered negligent when he does not hear his rebbe’s admonition. This is less severe than someone who ignores the admonitions. The latter person will become an intentional sinner when he ignores his rebbe’s admonition. The rule of mutav applies notwithstanding his having moved a distance from his rebbe so as not to be reproached for this misdeed!

Probably won’t listen

Should one reproach an ill-doer when you know that he probably will not listen? The halachah of mutav applies only when one is certain that the offending party will not listen. When one thinks that he will probably not listen, but it is not certain, one is required to admonish the offender (Tosafos, Bava Basra 60b s.v. Mutav).

We will continue our discussion about the mitzvah of tochachah next week.


[1] For a halachic explanation of the sale of Yosef, see the chapter on this topic in my book From Buffalo Burgers to Monetary Mysteries.

Some Light Chanukah Questions

Question #1: My sister invited our family for Shabbos Chanukah, and we will be sleeping at her neighbor’s house. Where do we set up the menorahs, particularly since I do not even know the neighbor?

Question #2: My husband has a late meeting at work tonight and will not be home until very late. What should we do about kindling Chanukah lights?

Question #3: I will be attending a wedding during Chanukah that requires me to leave my house well before lighting time, and I will not return until very late. Can I kindle at the wedding, just like the lighting that takes place in shul?

Question #4: I will be spending part of Chanukah in a hotel. Where should I kindle my menorah?

SOME BASICS

Each individual has a requirement to light Chanukah lights, or to have an agent kindle the lights for him (see Rambam, Hilchos Chanukah 3:4). In places where the custom is that the entire household lights only one menorah, which is the predominant practice among Sefardim, the person who kindles functions as an agent for the rest of the family and the guests. (However, cf. Minchas Shelomoh 2:58:41 and 42, who understands this halacha differently.) Even in places where the custom is that each individual kindles his own menorah, as is common Ashkenazic practice,  married women do not usually light, and most people have the custom that single girls do not, either (see Chasam Sofer, Shabbos 21b s.v. vehamehadrin, Elyah Rabbah 671:3, and Mikra’ei Kodesh #14 who explain reasons for this practice). In these instances, the male head of household kindles on behalf of his wife and daughters. A guest visiting a family for Chanukah can fulfill his or her obligation by contributing a token amount to purchase part of the candles or oil. By doing this, the guest becomes a partner in the Chanukah lights and now fulfills his mitzvah when the host kindles them. An alternative way to become a partial owner of the Chanukah lights is for the host to direct the guest to pick up some of the oil or candles and thereby become a partial owner.

GUEST WHO IS EATING IN ONE HOUSE AND SLEEPING IN ANOTHER

If someone is a guest and is eating at one house during Chanukah, but sleeping in a different house, where should he light the menorah?

One should kindle where he is eating (Rema 677:1). Therefore, in this situation, the place where one eats his meals is his primary “home.”

Many poskim contend that in Eretz Yisroel, the answer to this question depends on additional factors, including whether anyone else is staying in the house where the guest is sleeping. In their opinion, if no one else is kindling a menorah where the guest is sleeping, he should kindle the menorah there. Otherwise, he should kindle where he is eating.

The reason for this difference is that, in Eretz Yisroel, where the custom is to light outdoors when practical, someone walking through the street expects to find a menorah lit at every house. Thus, there is a responsibility to be certain that a menorah is kindled in every house that is occupied. In chutz la’aretz, since the menorah does not need to be visible outdoors to fulfill the mitzvah, someone walking outside the house and not seeing a lit menorah will simply assume that someone kindled indoors. Therefore, one does not need to make sure that every house has a lit menorah.

Similarly, if one is using two houses, in Eretz Yisroel he should light a menorah in each of them, although he should recite only one bracha; in chutz la’aretz he does not need to kindle a menorah in each house.

I can now answer the first question I asked above: If someone will be eating at one house and sleeping in another, where should he kindle the menorah? The answer is that in chutz la’aretz, he should kindle where he will be eating. In Eretz Yisroel, other factors may be involved, and one should ask a shaylah.

If a person spends Shabbos at someone else’s home, many poskim contend that one may kindle the menorah there on Motza’ei Shabbos before leaving (Teshuvos Vehanhagos 1:391). Some poskim suggest that if one does this, he should not leave immediately after lighting, but should spend some time, preferably a half-hour, appreciating the lights before leaving (see Teshuvos Vehanhagos 1:394).

Question #2: My husband has a late meeting at work tonight and will not be home until very late. What should we do about kindling Chanukah lights?

To answer this question, we need to discuss two issues. The first is:

WHEN IS THE OPTIMAL TIME TO KINDLE THE MENORAH?

Early poskim have a dispute concerning when is the optimal time to kindle the Chanukah lights. According to the Gra, the best time is immediately after sunset, whereas most Rishonim rule that it is preferable to kindle at nightfall, or shortly before.

The usually accepted approaches are to kindle sometime after sunset but before it is fully dark. Thus, Rav Moshe Feinstein kindled the menorah ten minutes after sunset, the Chazon Ish lit his menorah twenty minutes after sunset, while others contend that the optimal time to light the menorah is twenty-five minutes after sunset.

UNTIL WHAT TIME CAN ONE KINDLE THE MENORAH?

At the time of the Gemara, one fulfilled the mitzvah of lighting menorah only if one lit within a half-hour of the earliest time for lighting (Shabbos 21b; Shulchan Aruch 672:2). This was because the focus of lighting the menorah was to publicize the miracle to people in the street. Since, in the days of Chazal, the streets were empty shortly after dark, there was no longer any mitzvah of kindling Chanukah lights half an hour later.

Today, the pirsumei nisa (publicizing the miracle) is primarily for the members of the household, and therefore many poskim hold that it is not essential to kindle the menorah immediately when it begins to get dark, and one may kindle later (see Tosafos, Shabbos 21b s.v. de’ei). Nevertheless, because this halacha is disputed, one should strive to kindle at the optimal time, which is close to twilight, as we mentioned above. In addition, there is also a halachic problem with working before one performs the mitzvah, similar to other mitzvos, such as bedikas chometz or hearing megillah, where it is prohibited to work or eat before fulfilling the mitzvah (Shu’t Maharshal #85; Mishnah Berurah 672:10; Teshuvos Vehanhagos 1:395:4). Someone who missed lighting menorah at the proper time because of extenuating circumstances should kindle his menorah as soon as his family is assembled at home (Rema 672:2 and Mishnah Berurah ad loc.).

An alternative method can be followed when a husband is delayed. The husband can arrange to have a member of the household, such as his wife, light at the optimal time as his agent (Mishnah Berurah 675:9; Teshuvos Vehanhagos 4:170). If he follows this approach, he does not need to light when he arrives home later, and if he does light, he should not recite the bracha of lehadlik ner shel Chanuka. Alternatively, the wife can light at the proper time without the husband being present, and the husband can light when he gets home. If one follows the latter approach, the husband and wife are no longer functioning as agents for one another, as they usually do germane to mitzvos such as ner Chanukah and ner Shabbos. Rather, each is fulfilling the mitzvah of ner Chanukah separately.

Whether to follow this approach depends on the sensitivities of the people involved. My Rosh Yeshivah, Rav Y. Ruderman zt”l, often lectured us on the importance of being concerned about others’ feelings. He often repeated the story of the Chofetz Chayim’s rebbe, Rav Nachumke, who waited several hours until his rebbetzin returned home before lighting the Chanukah lights. Therefore, if kindling the menorah early via an agent will create friction between family members, one should wait and kindle at a time that creates more shalom bayis (see Shabbos 23b). It is important to discuss the matter in advance and decide on an approach that keeps everyone happy.

Question #3: I will be attending a wedding during Chanukah that requires me to leave my house well before lighting time, and I will not return until very late. Can I kindle at the wedding, just like the lighting that takes place in shul?

Answer: Let us ask this question about the baalei simcha themselves! If a wedding takes place during Chanukah, where should the baalei simcha light the menorah?

I have attended weddings during Chanukah where the baalei simcha brought their menorahs to the hall and kindled them there. However, this seems incorrect, because the baalei simcha are required to kindle Chanukah lights at their own homes (Teshuvos Vehanhagos 1:398). Therefore, they should light the menorah at their homes sometime during the evening. If this is not convenient, they should arrange for someone to kindle their menorah for them at their house, as their agent (see Mishnah Berurah 677:12). Guests attending the wedding who cannot kindle their menorah at home should also arrange for someone to light their menorah at their house. If they are concerned about leaving unattended lights burning, they should have someone remain with the lights for half an hour, and then the “menorah sitter” may extinguish the lights if he chooses. If someone wishes to light an additional menorah at the hall without a bracha to make pirsumei nisa, he may do so. However, this lighting does not fulfill the mitzvah (Teshuvos Vehanhagos 1:398).

WHY IS THIS DIFFERENT FROM LIGHTING IN SHUL?

Since one fulfills the mitzvah only by kindling the menorah in or near one’s residence, why do we kindle a menorah in shul?

Lighting the Chanukah menorah in shul does not fulfill the mitzvah of kindling Chanukah lights, but is a centuries-old minhag that we perform to make pirsumei nisa.

This practice prompts an interesting question. If lighting a menorah in shul is only a minhag, why do we recite a bracha on it? Do we ever recite brachos on minhagim?

The poskim explain that we recite a bracha because it is an accepted minhag, just as we recite a bracha on Hallel on Rosh Chodesh even though Chazal did not obligate this recital of Hallel and it, too, is technically a minhag (Shu’t Rivash #111; for other reasons see Beis Yosef, Orach Chayim 671, s.v. uma shekasav shemeinichin). Actually, even those opinions who contend that one does not recite a bracha on Hallel on Rosh Chodesh agree that one does recite brachos when lighting a menorah in shul (Shulchan Aruch, Orach Chayim 671:7; Shu’t Yabia Omer 7:Orach Chayim:57; cf. Shu’t Chacham Tzvi #88).

THERE IS A CONCERT IN SCHOOL ON CHANUKAH. SHOULD WE LIGHT THE MENORAH WITH A BRACHA TO PERFORM PIRSUMEI NISA?

Although lighting a menorah at the assembly will also be an act of pirsumei nisa, one fulfills no mitzvah or minhag by doing so. Therefore, one should not recite a bracha on this lighting (Teshuvos Vehanhagos 1:398).

WHY IS THE CONCERT DIFFERENT FROM LIGHTING IN SHUL?

Lighting in shul is a specific, established minhag. We cannot randomly extend this minhag to other situations and permit making a bracha (Teshuvos Vehanhagos 1:398).

LIGHTING IN A HOTEL

Question #4: I will be spending part of Chanukah in a hotel. Where should I kindle my menorah?

Answer: One should light the menorah in one’s room (Chovas Ha’dar, Ner Chanukah 2:9; see Shu’t Maharsham 4:146, who requires one to kindle Chanukah lights while riding the train). If there is concern about a fire hazard, one should remain with the menorah until a half-hour after nightfall, or at least for a half-hour after kindling, and then extinguish the lights. On Shabbos, place only enough oil to burn the required amount of time, which is until a half-hour after nightfall.

SHOULD ONE PLACE THE MENORAH IN THE WINDOW OF HIS HOTEL ROOM?

If someone will be able to see the lit menorah from outside, then it is preferable to light in a window. If no one will be able to see the menorah from outside, he should simply kindle the menorah on a table in his room.

If the hotel forbids lighting flames in its bedrooms, and one is eating regularly in the hotel’s dining room, one may light in the hotel dining room. Although we decided earlier that it is preferable to light where one is eating rather than where one is sleeping, in this instance, the hotel room is a better choice, since it is more one’s living area than is the dining room.

Although frum hotels often set up menorahs in the hotel lobby, many poskim contend that one does not fulfill the mitzvah by placing a menorah there, since one is required to kindle Chanukah lights at one’s “home,” which is where one regularly eats or sleeps, and not in a lobby. Other poskim are lenient, and contend that the entire hotel lobby is considered one’s living area — just as one’s entire house is considered one’s living area. Therefore, according to these authorities, one may fulfill the mitzvah by lighting in the hotel lobby.

VISITING DURING CHANUKAH

Where do I light menorah if I visit a friend for Chanukah dinner, but I am not staying overnight?

Many people err and think that one may fulfill the mitzvah by kindling the menorah at someone else’s house while visiting. I know of people who invite guests to their house for menorah kindling and dinner. The problem with this is that one is required to kindle Chanukah lights at one’s own house. Therefore, the guest must kindle the Chanukah lights at his own house and then go to his friend’s house for the festive meal (Taz 677:2; Mishnah Berurah 677:12).

WHERE DOES A YESHIVAH BACHUR LIGHT HIS MENORAH?

This is a dispute among contemporary poskim. Some contend that he should light in the yeshivah dining room, since it is preferable to kindle where one eats, as we mentioned above. Others contend that his dormitory room is considered more his “dwelling” than the dining room, and that he should light there (Shu’t Igros Moshe Yoreh Deah III 14:5; Shu’t Minchas Yitzchok 7:48; Chovas Hador pg. 106). To resolve this issue, some bachurim have the practice of eating one meal each day of Chanukah in their dormitory room and kindling the menorah there.

What about a yeshivah bachur who spends his entire day in yeshivah, but sleeps at home?

It is unclear whether his main obligation to light is at home or in yeshivah. Some poskim suggest he can fulfill the mitzvah by relying on the people kindling at each place — his family lighting at his home and his fellow students lighting in the yeshivah. Alternatively, he can have in mind not to fulfill the mitzvah in either place and light wherever it is more convenient (Shu’t Minchas Yitzchok 7:48; Chovas Hador pg. 106).

REWARD FOR LIGHTING NER CHANUKAH

The Gemara teaches that someone who kindles Ner Chanukah will merit having sons who are talmidei chachomim (Shabbos 23b, see Rashi). This is puzzling; since all observant Jews kindle Ner Chanukah, why aren’t all our sons talmidei chachomim? The Rishonim explain that this bracha applies only to someone who observes the mitzvah carefully, in all its details (Sod Hadlakas Ner Chanukah, authored by Rabbi Yitzchok, the son of the Raavad). It is, therefore, in our best interest to be thoroughly familiar with all the halachos of kindling the Chanukah lights. May we all be blessed with a happy and healthy Chanukah!!

Explaining the Mitzvah of Pidyon Shevuyim

Question #1:

“Recently I saw an advertisement saying that it was pidyon shevuyim to save a child from being raised non-Jewish. But I thought pidyon shevuyim is to free a captive, and these children are with their non-Jewish father.”

Question #2:

“Is there a mitzvah of pidyon shevuyim when someone was captured because he was doing something irresponsible or illegal?”

Question #3:

“I know that the Mishnah states that one should not redeem captives at greater than their market value, but how does one establish market value for a person?”

Answer:

Many news items have revolved around the issue of pidyon shevuyim, the mitzvah to redeem captives or hostages, which Chazal call a mitzvah rabbah — a great mitzvah. And yet, notwithstanding how important a mitzvah it is, at times Chazal placed limitations on pidyon shevuyim. The goal of this article is to understand the importance of this mitzvah and its basic halachic rules and concepts.

Introduction:

The magnitude of the mitzvah of pidyon shevuyim is reflected in the following passage of Gemara, which is, at the same time, a commentary to a very heartbreaking passage of Navi:

Rava asked Rabbah bar Mari: What is the source for the Sages’ statement that redeeming captives is called a “great mitzvah”?

In response, Rabbah bar Mari cited the following verse in Yirmiyahu, which contains tremendously harsh rebuke of the Jewish people:

“Vayomer Hashem eilai, im yaamod Moshe UShmuel lefanai, ein nafshi el ha’am hazeh; shalach mei’al panai veyeitzei’u. Vehayah ki yomru eilecha ana neitzei? Ve’amarta aleihem, ko amar Hashem, asher lamaves, lamaves; va’asher lacherev, lacherev; va’asher lara’av, lara’av; va’asher lashevi, lashevi.

“Hashem said to me, even were Moshe and Shmuel to stand before me and plead on behalf of the Jews, I have no interest in this people – send them away from before me, and they shall go.

“And if they [the Jews] ask you [Yirmiyahu], ‘Where are we going?’ Tell them, ‘So said Hashem: he that is destined for natural death will meet natural death; he that is destined for the sword will meet the sword; he that is destined for hunger will perish through hunger; and he who is destined for captivity will be captured’ [Yirmiyahu 15:1-2].

Rabbah bar Mari then added the commentary of Rabbi Yochanan: “This pasuk is organized according to progressively harsh travail. Violent death is more severe than natural death. Death from starvation causes far greater suffering than violent death. Being captured is a greater calamity than death itself — because it includes all the others.” (Bava Basra 8b)

The Rambam (Hilchos Matanos Evyonim 8:10) codifies the conclusion of Rabbah bar Mari ‘s statement:

Redeeming captives receives priority over providing the poor with food and clothing. There is no mitzvah greater than redeeming captives, because a captive is included among those who are starving, those who are thirsty, those who are without clothing, and he is in life-threatening danger. Someone who hides from redeeming him violates the following Torah prohibitions:

(1) Lo se’ameitz es levavecha — do not harden your heart from helping the poor (Devarim 15:7)

(2) Lo sikpotz es yadcha — do not close your hand (ibid.)

(3) Lo saamod al dam rei’echa — do not stand by when someone’s life is in danger (Vayikra 19:16)

(4) Lo yirdenu befarech le’einecha — do not subjugate him with hard work (Vayikra 25:53).

He also violates the positive mitzvos of:

(1) Ki paso’ach tiftach es yadcha lo — you shall surely open your hand to him (Devarim 15:8),

(2) Vechei achicha imach  allow your brother to live with you (Vayikra 25:36)

(3) Ve’ahavta le’reiacha kamocha love your fellowman as yourself (Vayikra 19:18).

The halacha is that, if necessary, one may sell a sefer Torah to raise the money for redeeming captives (Tosafos, Bava Basra 8b s.v. Pidyon; Shach and Taz to Yoreh Deah 252:1) Although one should not sell a shul to be able to redeem captives, this is only because we want people to dip into their pockets deeply enough to produce the resources. However, when one knows that this will not provide sufficient funding, one may even sell a shul for pidyon shevuyim money (Shach and Taz ibid. Mishnah Berurah 153:24; cf., however, Derishah to Yoreh Deah 252 who disagrees).

Why don’t we redeem captives?

Thus, we find it very surprising that, under certain circumstances, Chazal prohibited redeeming captives. The Mishnah (Gittin 45a) rules one may not redeem captives for more than their market value, because of tikun olam. What does this Mishnah mean that there is a tikun olam, which literally translates as an improvement of the world, not to redeem captives? And what does the Mishnah mean when it says for greater than their market value?

The Gemara presents two disputing reasons how tikun olam is accomplished by limiting the redemption outlay for captives.

(1) The financial pressure will be greater than the community can bear.

(2) The captors will strive to capture other Jews as a result.

Let me explain. In earlier generations, the main cause for someone being captured was not for ransom and not as a hostage for political or prisoner exchange, but because pirates or a marauding armed gang would seize whatever they could of value, and human captives had commercial value as slaves. Thus, any person capable of working had an estimated market price at a slave auction (see Rashi, Kesubos 52b s.v. Trei; however, cf. Shu’t Radbaz 1:40). Notwithstanding the tremendous mitzvah of redeeming captives, Chazal limited how much one should pay to free captives, out of concern that pirates and other criminals would discover that capturing members of the Jewish people is particularly lucrative, and, as a result, they would deliberately target Jews. Thus, the Mishnah‘s takanah established a law that avoids saving one Jew at the expense of creating a menace to others; which explains why it is a tikun olam — it improves world safety.

Why is financial pressure greater than pidyon shevuyim?

This explains the Mishnah‘s takanah according to the second reason cited by the Gemara. However, the Gemara had previously cited a different reason for the tikun olam, which was that redeeming captives at a high price might cause undue financial pressure on the community. This appears to be a strange reason to prevent redeeming captives, particularly when we consider every captive to be in a circumstance of life-threatening emergency. Why would Chazal establish that financial pressure should override pikuach nefashos?

The Chasam Sofer (Shu’t Choshen Mishpat #177 at end) explains that when unlimited redemption funds are paid by the Jewish community coffers, the population itself will become impoverished, which will result in numerous life-threatening emergencies. (The current European financial and political crises are reflective of this.) Therefore, both reasons of the Gemara prevent the threat to one individual from endangering many others.

To sum up. The Mishnah cites a takanah not to redeem captives at greater than their market value because of a tikun olam, and the Gemara cites two reasons to explain the tikun olam, both of which are meant to avoid an inevitable situation that will endanger more people.

A difference in practical halacha

Is there any difference in halacha between the two reasons? Indeed, there is.

According to the first reason — that we are concerned about impoverishing the community – the takanah includes only a situation in which public funds are being used, but not when the redemption money is raised privately. However, according to the second reason, that we are concerned that criminals will now target Jews, the takanah is applicable even when we are raising private funds to redeem the captive, since this establishes a precedent that endangers other people. Thus, the two explanations of tikun olam disagree whether the takanah was specifically that the official community coffers may not be used to redeem captives at greater than market value, or whether this was an absolute takanah binding on all individuals.

To explain this consequence, the Gemara cites the story of a man named Levi bar Darga, who redeemed his captured daughter for a huge sum. The Gemara notes that whether Levi bar Darga was permitted to do this or not depends on which of the two answers of the Gemara we accept. If the tikun olam was to protect future captives, Levi bar Darga was not permitted to redeem his daughter at above her value in the slave market, since this would encourage the targeting of Jews. However, if the tikun olam is to avoid undue pressure on the community chest, Levi bar Darga and any other individual who is paying a ransom out of his personal pocket are permitted to pay whatever they choose, since they are making no requests of the community.

An interesting exception

There is one interesting exception to this rule. The poskim rule that the takanah not to redeem a captive for greater than his market value applies only to a third party redeeming someone, but does not apply to the captive himself, who may redeem himself at whatever price the captors demand (Tosafos, Kesubos 52a s.v.Vehayu; Shulchan Aruch, Yoreh Deah 252:4).

If the captors threaten bloodshed

Now that we understand why we may not redeem captives for more than “market value,” we will explore whether there are any other exceptions to the tikun olam rule.

Is there any exception when the peril to life is more direct, such as when the captors threaten to execute the captives if their ransom demands are not met? Granted that the Rambam states that every instance of redeeming captives is pikuach nefesh, there are instances in which the level of pikuach nefesh is much greater, such as when the bloodthirsty captors may execute their hostage rather than sell him or her into slavery. Under these circumstances, does the rule of not redeeming captives above their market price still exist?

Indeed, many authorities consider this case to be an exception to the rule (Tosafos, Gittin 58a s.v. Kol and 45a s.v. Delo). They rally support to this position from the following story recorded by the Gemara (Gittin 58a). The great Tanna, Rabbi Yehoshua ben Chananya, was in Rome shortly after the churban of the Beis Hamikdash when he heard of an unusually gifted lad who had been captured. Rabbi Yehoshua succeeded in communicating with the child and was tremendously impressed by the child’s acumen, realizing that this child would become a valuable asset for the Jewish people if he would be allowed the opportunity to develop into a Torah scholar. Rabbi Yehoshua decided to buy the child’s freedom at whatever this would cost, which he succeeded in doing at a very high premium. The child grew to become the Tanna Rabbi Yishmael.

Tosafos raises the question: how was Rabbi Yehoshua permitted to collect such a high ransom, when Chazal prohibited redeeming captives at above market price? Tosafos presents three reasons why Rabbi Yehoshua was permitted to do so.

(1) When there is a clear danger, the takanah does not apply.

(2) The Jewish people’s need for Torah scholars is very great, and therefore, one may redeem talmidei chachamim and potential talmidei chachamim at a higher price.

(3) At the time of the churban, how much ransom one paid to release a particular prisoner would not affect how many captives the Romans seized. Thus, the reason for the takanah did not apply in this instance.

Targeting talmidei chachamim

Many of us know of the famous story of the Maharam of Rottenberg (Germany), the famous thirteenth century “Captive Rabbi,” who refused to allow himself to be redeemed for an excessive price, out of concern that this would become a common practice of gentile kings and marauders. There is no reason to assume that the Maharam disagreed with Tosafos‘ conclusion that one may redeem Torah scholars at above market price. It is more likely that the Maharam realized that in his day, were he to have be redeemed for an exorbitant ransom, it would have endangered other talmidei chachamim and caused a great loss of talmidei chachamim to klal Yisrael.

Redeeming from imminent danger

Later poskim debate whether the first answer of Tosafos, that the takanah does not apply when the captive is in grave danger, is considered the final say in halacha (see Pischei Teshuvah, Yoreh Deah 252:4). For example, the following responsum disputes Tosafos’ conclusion:

In the early sixteenth century, the Maharam of Lublin, Poland, was asked the following question by the Jewish community of Apta. (We should be careful not to confuse him with the Maharam of Rottenberg whom I mentioned above, who lived in Germany some 300 years earlier.) A young man of their community had been seized by gentiles, who contended that they had caught him engaged in unsavory activities, and that they were going to either execute him or forcibly convert him to their religion, in this instance, Islam. The community questioned whether it was required to redeem the young hostage, since he was accused of violating halacha and, in addition, had caused his own imprisonment by acting foolishly. In addition, assuming that they were responsible for redeeming him, they asked whether they were required to do so if the ransom demanded was excessive. (It appears from the responsum that the redemption funds would come from the general community funds or, perhaps, a special tax collection for this purpose.)

The Maharam responded that even were we certain that the young man had sinned, this fact would not exempt the community from redeeming him, even with use of public funds. Nevertheless, the Maharam contends that although they are required to redeem him, they are not required to pay more than his market value, even though his life is in serious danger. The Maharam contended that every captive is in life-threatening danger, yet Chazal ruled that we do not redeem captives at greater than “market value” because the potential life-threatening menace to the larger community endangers more people (Shu’t Maharam Lublin #15).

(The responsum of the Maharam has a surprising ending. After discussing all the halachic ramifications of the question asked, he reports that he consulted with a wise scholar familiar with the political scene near Apta, a certain Rav Moshe ben Rav Yehoshua, who advised that the accusation against the young man was merely an excuse of the jealous and greedy gentiles to demand funds from the Jewish community, and that the particular crime of which the young man was accused did not warrant the punishment they were threatening. Furthermore, the Maharam notes, it was uncertain whether the young man had indeed performed the act of which he was accused.)

Kidnapping for ransom

Does the takanah apply today, when the potential captors are not looking for prisoners that they can sell as slaves, but rather hostages that they can hold for ransom?

In an early responsum, the Radbaz (Shu’t #40) notes that the custom is to redeem captives at above the value that they would fetch in the slave market. He contends that even though the price is often ten or more times the captive’s slave value, the fact that the captors are not looking specifically for Jews means one can pay the higher price that a ransom would fetch. However, he notes that one should not pay more than gentiles would pay as ransom, since this could lead the captors to single out Jews in the future. The Radbaz notes, however, that common custom was to redeem at even higher prices. The Radbaz then proceeds to explain that this practice, which appears to run counter to the takanah of the Mishnah, is based on the following four heterim.

  1. Since there are wealthy gentiles who pay high ransoms for family members, potential kidnappers will target wealthy people, not necessarily Jews.
  1. Sometimes, the captive qualifies as a talmid chacham, who may be redeemed at above market price.
  1. When there are minors involved who will be lost to Judaism, we may redeem them at any price.
  1. We are not providing public funds, but seeking donations for these redemptions, which is not included in the takanah according to the first approach of the Gemara. (This last reason of the Radbaz is surprising, since the Rif, Rambam, and other major halachic authorities all rule according to the second reason the Gemara cited.)

Saving children from shmad

The third justification of the Radbaz touches on a different question, which unfortunately has become common, and leads us to a discussion about a different type of pidyon shevuyim. This is where we are not endeavoring to save someone’s physical life, which may not be at risk, but to save their spiritual life. It is accepted halacha that, in such a situation, there is no limit to how much money one is required to spend to save them, and the acts undertaken to save them supersede all the mitzvos of the Torah. This means that if one needs to travel on Shabbos or violate Shabbos in some other way to save a child from falling under non-Jewish influences, one is required to do so, just as saving physical lives supersedes Shabbos (Shulchan Aruch, Orach Chayim 306:14). Therefore, someone who needs to fight a legal custody battle to save a minor from being raised in a non-Jewish environment is required to spend as much money as it takes to save the minor, even when the chances of winning are slim and communities are required to contribute significant sums to help.

In conclusion

The circumstances surrounding any situation of pidyon shevuyim are extremely painful; yet, precisely for this reason, it is the greatest mitzvah of chesed we can perform on behalf of another Jew, whether we are involved in redeeming him physically or spiritually. We should be certain to respond generously whenever we are approached to help in this mitzvah, and see it as a huge opportunity to do Hashem‘s will.

The Unfair Fare

It had already been a really tough day. Now, on top of that, Mrs. Gartenhaus (all names in this story have been changed) was very unhappy with the cab driver she had hailed. Aside from his discourteous behavior, she sensed a certain shadiness to his personality. She just couldn’t wait to get home and get out of his vehicle.

To complicate everything, on her way home Mrs. Gartenhaus realized that she had no more money in her wallet — and she also realized that Mr. Gartenhaus would not be home from his chavrusa for a while. She really did not want to disturb his learning just because she had forgotten to bring enough money for the cab home. But what was she to do?

She wondered whether one of the neighbors might be home, and whether she could remember their phone numbers. Sure enough, Mrs. Horowitz’s phone number popped into her head — if only she were home. Mrs. G. dialed the number on her cell phone, and Baruch Hashem, Mrs. Horowitz answered! Mrs. G. quickly explained her predicament, and Mrs. Horowitz answered, “No problem. I have a 100 shekel bill in my wallet. That will be more than enough for your fare.”

Mrs. G. breathed an audible sigh of relief. “The fare should actually not be more than 40 shekalim, so I don’t need to borrow that much,” she told Mrs. Horowitz.

“I happened to check my wallet this morning and noticed that I have only one single 100 shekel bill,” Mrs. H. replied. “But feel free to borrow it. I have to go to the bank later today, anyway, to withdraw some money. I’ll send my daughter Channie outside to meet your cab.”

Mrs. Horowitz asked 13-year-old Channie to fetch the bill from her wallet and meet Mrs. Gartenhaus’s cab. Mrs. G., who was very relieved to escape the sleazy driver’s vehicle, paid little attention to the bill that she transferred from Channie’s hand to the cabby’s outstretched paw. Before receiving her change, she gratefully began to exit the cab.

“One minute,” the driver shouted gruffly, brandishing a 20 shekel bill in his hand, “You owe me another 20 shekalim!”

Mrs. Gartenhaus was at a loss. She assumed that Channie had given her the 100 shekel note her mother promised, but maybe there was some mistake. In the meantime, Channie had returned home, the driver was hissing, and Mrs. G. just wanted to get home and climb into bed.

Noticing one of her neighbors on the curb, she embarrassingly called out the window, “Do you, perhaps, have 20 shekels I can borrow?” Having successfully borrowed the additional 20 shekels, she paid the cabbie, and struggled into her house. Meanwhile, she was trying to figure out what went wrong in her communication with her wonderful neighbor, Mrs. Horowitz. And, only later, did she realize that she should have taken down the cabby’s license number and the name of his company.

After resting a while, she called Mrs. Horowitz to ask her if she could send one of her children over in order to repay her loan. “By the way, how much money did you send with Channie?” She inquired.

“I sent 100 shekel,” came the swift reply. “Why? Was there some problem?”

Mrs. G. told Mrs. Horowitz what had happened. “I’ll check with Channie, but I am pretty certain that I had only one 100 shekel bill in my wallet.”

Channie confirmed that she had found only one 100 shekel bill in the wallet.

How much must Mrs. Gartenhaus pay back to Mrs. Horowitz?

Does Channie have any legal responsibilities in this case?

Mrs. Horowitz called Rav Cohen to ask how much Mrs. Gartenhaus owes her. Although it might seem like an open-and-shut case, the halacha is anything but obvious, as we will see.

Rav Cohen mulled over the case, thinking over the complicated halachic topics this event encompasses. Clearly, both women want to do what is correct. Is it clear that Mrs. Gartenhaus owes 100 shekalim?

Legally, in this case, the claimant, usually called the plaintiff, is Mrs. Horowitz. She is placing a claim that Mrs. Gartenhaus borrowed 100 shekalim that Channie delivered. Mrs. Gartenhaus’ response is that she does not know how much money she borrowed. It might seem that Mrs. G. has a very weak defense: After all, Mrs. Horowitz is making a definite claim that Mrs. Gartenhaus owes her 100 shekalim, while Mrs. Gartenhaus’ only response is that she did not pay attention.

Halachically, Mrs. Horowitz’s position is called a bari, a person with a definite claim. Mrs. Gartenhaus’ response that she is unaware how much she owes makes her a shema, a defendant stating that she is uncertain. This case is the subject of a Talmudic dispute. Here is one case where this question is discussed:

Reuven borrowed a cow from Shimon and also rented a different cow. One of the cows died in a way that would make Reuven liable if he had borrowed it, but he would not have to pay if it was rented. Unfortunately, Reuven does not remember which cow was borrowed and which was rented, but Shimon is certain that the dead cow is the one that was borrowed and that Reuven is obligated to pay. Must Reuven compensate Shimon for the dead cow?

The halacha is that bari ve’shema lav bari adif, the certain claim of the bari is insufficient on its own to win the case. This rule is true even in a case where the shema should have known for certain whether the claim against him is valid, as in the situation of the dead cow (Bava Metzia 97b). Therefore, Reuven does not have to pay for the dead cow.

Applying the principal to our case, it could be that Mrs. Horowitz would have to prove that she loaned 100 shekalim in order to require Mrs. Gartenhaus to pay the full amount. But this is true only when the claim is challenged.

Ah, but you’ll tell me, Mrs. Horowitz has a witness on her side which Shimon did not have. Channie can testify that the loan was indeed 100 shekalim!

By now, the yeshiva minds among us are racing with valid reasons why Channie’s testimony is insufficient to prove her mother’s case. Firstly, a single witness is not enough. Secondly, Channie is related to one of the interested parties. Furthermore, Channie herself is an interested party, nogei’ah be’eidus, in the litigation. If she denies that she received a 100 shekel bill from her mother, she exposes herself to a lawsuit from her mother claiming that she received money as an agent for which she cannot account. Although the likelihood of Mrs. Horowitz suing her own daughter for 100 shekalim is slim, it is still sufficient reason for Channie to be considered a nogei’ah be’eidus, making her testimony inadmissible.

Mrs. Horowitz has not yet exhausted her legal approaches. She may still stake a claim against Mrs. Gartenhaus, based on either of the following reasons:

1. Modeh bemiktzas. Mrs. Gartenhaus agrees that she borrowed money, but is challenging the amount of the loan. The Gemara calls this modeh bemiktzas, acknowledging part of a claim. The Torah requires someone who acknowledges part of a claim, and denies part, to swear an oath he does not owe the balance (Bava Metzia 3a et al.). If he does not want to swear, he must pay the balance of the claim.

2. Shevuas hesses. Based on Mrs. Horowitz’s definite claim that Mrs. Gartenhaus owes her 100 shekalim, Mrs. H. can insist that Mrs. G. swear an oath denying that she owes money. The Gemara calls this shevuas hesses, an oath to discourage defendants from denying claims that lack sufficient evidence (Shevuos 40b; Shulchan Aruch, Choshen Mishpat 87:1).

We will examine each of these legal arguments. In the first argument, modeh bemiktzas, Mrs. Horowitz is claiming 100 shekalim. Mrs. Gartenhaus acknowledges that she owes 20 shekalim, but is uncertain about the remaining 80 shekalim. Thus, to fulfill the Torah’s requirement to swear an oath, Mrs. Gartenhaus would have to swear that she definitely does not owe more than 20 shekalim, something she cannot do. What is the halacha in this situation?

The Gemara discusses this exact case: Reuven claimed that Shimon owed him 100 dinarim. Shimon responds, “I know that I owe you fifty, but I do not know about the other fifty.” Is Shimon obligated to swear on the remaining balance? And if so, what does he swear?

The Gemara rules that since Shimon cannot swear that he does not owe the balance, he is obligated to pay the full 100 dinarim (Bava Metzia 98a).

Thus, Mrs. Horowitz seems to have her case wrapped up. Mrs. Gartenhaus cannot swear that she definitely does not owe 80 shekalim. Consequently, she should be required to pay the full 100 shekalim.

Except for one detail: Has Mrs. Gartenhaus paid back the 20 shekalim? If she already paid back 20 shekalim, the case is halachically different. Now, Mrs. Horowitz is claiming 80 shekalim and Mrs. Gartenhaus is denying the entire claim. Thus, Mrs. G. is no longer modeh bemiktzas, someone who acknowledges part of the claim, but kofeir hakol, someone denying the entire claim. Although it may seem that there is not much difference between the two scenarios, halachically someone who acknowledges part of a claim must swear an oath min haTorah, whereas someone who denies the entire claim does not. The rationale for this distinction is beyond the scope of this article (Bava Metzia 3a).

This is where the other type of oath, shevuas hesses, comes into play. Since Mrs. Horowitz claims that Mrs. Gartenhaus definitely owes her 80 shekalim, she can insist that Mrs. G. swear an oath about the claim.

But one minute! Either way, there would be a technical responsibility to swear an oath. What is the difference whether Mrs. Gartenhaus is being asked to swear a oath because of modeh bemiktzas or as a shevuas hesses? Either way, there is an oath that she cannot swear!

However, there is a significant difference in halacha between the two oaths, which makes a big practical halachic difference in our case. If the oath is min hatorah, the fact that Mrs. G. cannot swear for certain to deny the claim works against her, as we explained above. However, if the oath is of the hesses variety, it is sufficient for Mrs. Gartenhaus to swear that she is unaware how much she owes (Shulchan Aruch, Choshen Mishpat 87:1). Thus, Mrs. Horowitz cannot insist that Mrs. Gartenhaus pay her the full sum. She must be satisfied with 20 shekalim and an oath from Mrs. Gartenhaus that she truthfully does not know how much she borrowed.

Rav Cohen reflected over the fact that batei din do not usually insist on oaths, but instead will suggest some form of compromise. Not that these two well-meaning ladies were about to pursue this matter in a beis din setting — they are two fine ladies who want to do what is halachically correct.

Then he realized that since Mrs. Gartenhaus should have checked how much money Channie gave her and she did not, that this factor is probably sufficient to make her obligated to pay.

The Rav asked Mrs. Horowitz to have Mrs. Gartenhaus give him a phone call.

The phone rings. Mrs. G. is on the phone. Rav Cohen asks her what happened, to see if the versions substantiate one another. They do. And it is also clear that Mrs. Gartenhaus wants to do what is correct.

Mrs. Gartenhaus paid the money in full, and as you can imagine, she never heard from the cabby again. Besides the halacha principles gleaned from her story, an added lesson is to check before handing over a bill, especially to an unscrupulous cab driver!

Is Seeing Red Kosher?

Eisav is often associated with the color red, which provides an opportunity for the following halacha question: Is a red food color that is manufactured from animal material kosher? Indeed, the master artisans building the Mishkan used a dye, tola’as shani, which is often assumed to be the “blood” of an insect, in the manufacture of the Kohen Gadol’s vestments. Was this color kosher? This color was also used to dye the curtains and coverings of the Mishkan. In addition, processing the ashes of the parah adumah (Bamidbar 19:6), purifying a metzora and decontaminating a house that became tamei all use tola’as shani (Vayikra 14:4, 49). As we will discover, correctly identifying the tola’as shani not only affects these halachos and those of the Beis Hamikdash, but also concerns a wide assortment of foods and beverages that we eat and drink.

Color is an important part of any food, and, in many cases, is one of the main considerations of consumers when choosing food. Companies increase sales by tinkering with the color of foods. For this reason, food technologists consider a number of factors when deciding how to color a particular food.

SEEING RED

As is evident from the verse, if your sins will be like shanim, they will become as white as snow; though they be red as the tola, they will become white, like wool (Yeshayah 1:18), tola’as shani is a red color. Upon this basis, some authorities identify tola’as shani as kermes, a shade of scarlet derived from scale insects (see Radak to Divrei Hayamim II 2:6). The ancients derived a red dye from the dried bodies of a species called Kermes ilices, which served as one of the most important pigments for thousands of years. As a matter of fact, the English word crimson derives from this ancient dye.

Are tola’as shani and kermes indeed identical? We should note that the Hebrew word tola’as, which is usually translated worm, may include insects and other small invertebrates. Thus, it may indeed be that the tola’as of the verse is a scale insect that produces a red dye. One can rally support for this approach from the verse in Divrei Hayamim (II 3:14), which describes the paroches curtain as woven from techeiles, argaman, karmil, and butz (linen), whereas the Torah describes the paroches as made of techeiles, argaman, tola’as shani, and shaish (linen) (Shemos 26:31). Obviously, karmil, which is fairly close to the word kermes, is another way of describing tola’as shani. Similarly, when describing the artisans sent by King Hiram of Tyre to help Shelomoh Hamelech build the Beis Hamikdash, Divrei Hayamim (II 2:13) mentions karmil as one of the materials used in construction of the Mishkan, and omits tola’as shani. Thus, karmil, a word cognate to kermes, is the same as tola’as shani, which the Radak assumes originates from the worm itself (Radak to Divrei Hayamim II 2:6). Similarly, the Rambam explains tola’as shani to mean “wool dyed with an insect” (Hilchos Klei Hamikdash 8:13).

However, Rabbeinu Bachyei (Shemos 25:3) takes issue with this approach, insisting that only kosher species may be used for manufacturing the Mishkan and the garments of the kohanim. He bases this position on the Gemara’s statement that “only items that one is permitted to eat may be used for the work of heaven,” which teaches that one may use only kosher items in the manufacture of tefillin (Shabbos 28a). Rabbeinu Bachyei assumes that the Mishkan, itself, whose entire purpose is to serve Hashem, certainly requires all its materials to be kosher.

Which presents us with the question: How does this fit with the description of tola’as shani as a worm derivative?

Rabbeinu Bachyei, himself, explains that the dye called tola’as shani does not originate from the insect itself, but from a fruit or berry that contains an insect. Both Rambam (Hilchos Parah Adumah 3:2) and Rashi (to Yeshayah 1:18) also seem to explain tola’as shani this way. Thus, we might be able to modify our explanation of the Rambam’s words “wool dyed with a worm” to mean “wool dyed with a fruit that contains a worm.” (However, see the contemporary work Be’ikvus Tola’as Hashani, who explains Rashi and the Rambam differently.)

Thus, Rabbeinu Bachyei, and possibly the Rambam and Rashi, identify the tola’as shani as a fruit that has a worm in it, whereas the Radak understands tola’as shani to be the derivative of the kermes insect itself. How does the Radak resolve the issue raised by Rabbeinu Bachyei that only kosher items may be used to fulfill mitzvos?

I know of several ways to resolve this concern:

(1) Some maintain that only the basic substance used to fulfill the mitzvah must be kosher, but not a dye that merely coats the surface (cf. Shu’t Noda Bi’yehudah II Orach Chayim #3). Therefore, tola’as shani may indeed be of a non-kosher source, since it is not the material used for the mitzvah, but only colors the materials used.

(2) Others contend that the prohibition to use non-kosher items for mitzvos applies only to tefillin, mezuzos and other mitzvos requiring use of Hashem’s name or of verses of Tanach, but that one may use non-kosher items for other mitzvos or for items used in the Beis Hamikdash (see Ran, Rosh Hashanah 26b s.v. umihu af al gav; Shu’t Noda Bi’yehudah II, Orach Chayim # 3). According to this analysis, tola’as shani is acceptable for the Beis Hamikdash, even if it is considered non-kosher.

(3) A third approach asserts that kermes dye is kosher, since its original source can no longer be identified. This approach is based on early poskim, who held that a prohibited food becomes kosher when it transforms completely into a new substance. The Rosh (Berachos 6:35; Shu’t 24:6) cites Rabbeinu Yonah, who permitted using musk, a fragrance derived from the gland of several different animals, many of them non-kosher, as a food flavoring, because it had already been transformed into a new substance no longer identifiable with its source. Similarly, the Rambam identifies musk as one of the ingredients in the incense burned in the Beis Hamikdash. Based on these authorities, one can theorize that although the source of the kermes is non-kosher, the dye itself is kosher. In an article I wrote once titled Some Kitniyos Curiosities, I noted that there is much dispute about this chiddush, and that virtually no late halachic authorities permit use of an originally non-kosher item that has become transformed, at least in regard to Torah prohibitions.

(4) Others contend that the kermes coloring is kosher, since the creatures are first dried — and powder derived from an insect dried for twelve months (or the equivalent) is considered to be innocuous and, therefore, kosher (see Pischei Teshuvah, Yoreh Deah 87:20 and Darkei Teshuvah ad loc. and 102:30 — the latter anthology contains a lengthy discussion on this topic; Shu’t Minchas Yitzchak 3:96:2).

Thus, we have several different ways of explaining how the tola’as shani may indeed have been identical with the Egyptian kermes and yet still be an acceptable dye for mitzvah objects, such as the garments of the kohanim and the curtains and coverings of the Mishkan. Analyzing the different opinions about tola’as shani leads into a practical discussion as to whether kermes is a kosher food coloring.

THE FOOD COLORING INDUSTRY

Whether we like it or not, many of our foods are colored with a host of coloring agents. Some are derived from food items, such as beets, berries, sugar (caramel coloring), turmeric and annatto, whereas others are derived from inedible materials, such as coal, petroleum and other sources most consumers would prefer to ignore. Although the processing of colorants can involve use of non-kosher ingredients or processing methods that compromise the kashrus of the finished product, only a few food colors are themselves obtained from non-kosher materials. Among those that originate from non-kosher substances is carmine red, also called cochineal, which is often used to color canned fruits, yogurts, juice drinks, maraschino cherries, etc.

THE ORIGIN OF CARMINE

When the Spaniards colonized the New World, they discovered a scale insect, called the cochineal bug, which yields a red color eight times brighter than kermes. The Spaniards valued this insect, developing and marketing its carmine red pigment. The word carmine, used specifically for this color, is derived from the similarity of cochineal to kermes, which it eventually replaced as the most common color. One of the common uses of this dye is in bright red punch, which, for this reason, became commonly called in camps “bug juice.”

KOSHER CARMINE?

Are kermes and carmine kosher for food coloring?

Whether kermes and carmine pigments are kosher or not depends on why some contend that kermes could be used to dye the garments of the kohanim. Let us review the four answers that I quoted above and see how each one impacts our shaylah.

Approach (1) above permitted dyeing a mitzvah item using non-kosher material, since the latter is not the primary item, but only a coloring. This approach would prohibit use of color from a non-kosher source in a product that one intends to eat.

Approach (2) ruled that mitzvah items that do not contain Hashem’s name or a holy verse may be produced from non-kosher substances. This reason would also forbid use of kermes or carmine colors for food.

Nevertheless, both the third and fourth approaches mentioned would permit using cochineal coloring in a kosher product.

Approach (3) held that the color is now transformed into a completely different substance and has therefore lost its non-kosher status.

Approach (4) maintained that the kermes scales are dried out to the point where they are no longer non-kosher. Indeed, for this reason, some authorities maintain that carmine is kosher (Pischei Teshuvah, Yoreh Deah 87:20; see Minchas Yitzchak 3:96:2). Many years ago, I remember seeing carmine color certified kosher by responsible talmidei chachamim. However, today, every respected kashrus agency I know treats carmine color as non-kosher.

Although approach #3 held that the color is now transformed and has therefore lost its non-kosher status, the Shulchan Aruch (Yoreh Deah 114:2) and other authorities (see Rema, Orach Chayim 467:8 and Magen Avraham 216:3) rule as the Rishonim, who prohibited a transformed food item whose original source was prohibited min hatorah. Many authorities permit a transformed food item whose source is prohibited because of rabbinic injunction (Pri Megadim, Mishbetzos Zahav 216:2; Shu’t Chasam Sofer, Yoreh Deah #117; Shu’t Imrei Yosher 2:140; Mishnah Berurah 216:7).

The relationship we have with food is not limited to taste and smell. We learn this from the laws requiring lighting candles for Shabbos, which enables one to see what he eats and thus leads to greater enjoyment of the Shabbos repast. Similarly, the Gemara teaches that a blind person is never satiated by what he eats (Yoma 74b). Much of the skill involved in the food service business is unrelated to cuisine, but intimately connected to the appearance and presentation of the food, in which the choice of colors figures prominently. As we see from the above article, we should keep in mind the kashrus ramifications of the color of the food we eat.

Is a Will the Halachic Way?

Would Yitzchak (and ultimately klal Yisroel) have been better off had he written up, in advance, a will, clearly determining how he wanted his spiritual and temporal properties to be divided?

Should one write a will?

May one distribute one’s estate differently from the way the Torah instructs?

SHOULD A JEW WRITE A WILL?

Before answering this question, we should clarify what would happen if one left no legally binding will. For example, who becomes the legal guardian of one’s minor children? The law may prescribe a very different solution than what one would want to happen, with potentially catastrophic results. After discovering this possibility, the need to have a will usually becomes obvious.

Another question to resolve is what happens to one’s property if one leaves no will. Each state and country has different laws determining who takes possession of the property of a person who dies without having left a will. One thing is virtually certain: The division followed by a court will not follow halacha. Probate court will almost certainly award part of or the entire estate to someone who is not halachically entitled to it. Since there is no reason to assume that the halachic heirs should want to forgo their rightful ownership, someone will receive property that is not rightfully his or hers.

SOME YERUSHA BASICS

In order to understand why the wrong person ends up with the property, we must first understand who should be the halachic heir. Many people are surprised to discover that halacha distributes inheritance very differently from modern legal procedure.

According to Torah Law, property is bequeathed as follows: Sons or heirs of sons inherit everything, even if there are daughters (Bava Basra 115a). (Yes, this means that a granddaughter who is the daughter of an already deceased son inherits Grandpa’s estate ahead of Grandpa’s own daughter, an anomaly that the Gemara itself notes [Bava Basra 115b].)

If there is more than one son, the father’s bechor, firstborn son, receives a double portion in much of his father’s properties, but not his mother’s. This means that if there are three sons, including the firstborn, the property is divided into four portions, and the firstborn receives two. (Who qualifies as a bechor for these laws, and in which properties he does or does not receive an extra portion, are topics to be dealt with a different time.) If there are no sons or heirs of sons, then the daughters inherit, and if there are no surviving daughters, then their heirs do (Bava Basra 115a). If the deceased left no surviving descendants, the father of the deceased is the beneficiary of the entire estate (Bava Basra 108b). If the father has already passed on, then the paternal brothers inherit; if there are no brothers, their progeny are next in line. If no brothers or offspring survive, then paternal sisters and their children are the heirs. If the deceased’s father has no surviving progeny, then the deceased’s paternal grandfather and his descendants become the beneficiaries, again following the same pattern.

HUSBAND INHERITING

There is one major exception to these rules of yerusha – a husband inherits most assets left by his deceased wife. (Again, I will leave the exceptions for a different time.) This is true even if she has children, and even if her children are from a previous marriage. There are many ramifications of this rule, which can be the subject of a full-length halachic/legal treatise, and certainly reflect a very different hashkafah, perspective, on fiscal decision making than what is politically correct in today’s world.

DAUGHTERS

Although daughters are not heirs when there are sons, minor daughters receive support from their father’s estate. In addition, the estate provides for the wedding and related expenses of all unmarried daughters. Beis Din estimates the amount of these gifts based on the father’s means and how much he provided, while still alive, for the older sisters’ weddings (Kesubos 68a; cf., however, Tosafos, Kesubos 50b).

A widow does not inherit from her husband; instead, her late husband’s assets provide for her, until she shows interest in remarriage. At that time, she may collect her kesubah.

PATRILINEAL RELATIVES

Note that all halachic heirs follow the father’s line and not the mother’s (Bava Basra 108a; Shulchan Aruch Choshen Mishpat 276:4). Thus, if an only child, whose father is also an only child, died, his heir will be a cousin on his paternal side, and not his closer relatives on his mother’s side.

Yankel (not his real name) once asked me the following shaylah: “My half-sister, who is my mother’s daughter, passed on, leaving all her property to her caretaker. The family members are contesting the will, and would like me to join their lawsuit. May I?”

I noted that there is no halachic point in his participating in this litigation, even if Beis Din authorized the suit. Even assuming that the will is indeed worthless, Yankel has no halachic claim to the money, since only relatives on the paternal side have halachic claim to the estate, and he is related on her mother’s side. Therefore, any properties he receives would actually belong to someone else. In this instance, bitachon must teach one that although civil law may consider the property to be yours, the ratzon Hashem is that to keep it is tantamount to stealing!

CHOOSING ONE’S HEIRS

According to civil law, a person may choose his heirs and thereby distribute his earthly wealth after he passes on. However, according to the Torah, a person cannot technically choose his heirs, nor distribute property after his demise. When a man dies, the Torah instructs who owns his assets according to the laws of yerusha presented previously.

If a person cannot create his own heir, does this mean that it is impossible to influence who eventually receives his assets? No, since there are several halachically acceptable methods of transferring property to someone who is not a halachic heir. Most of the methods take affect by creating some form of gift while the benefactor is still alive. Exactly how each method works, and the relative advantages and disadvantages of each approach, is a complex topic, beyond the range of this article. Certainly prior to finalizing a will drafted by an attorney, one should ask one’s rav whether there are any halachic concerns with the will’s goals, and what needs to be added (or changed) to validate it halachically. It is even better to speak to one’s rav before drafting the will for direction on some of the halachic issues involved.

Let us now examine the second question I raised above:

MAY ONE DISTRIBUTE ONE’S ESTATE DIFFERENTLY FROM WHAT THE TORAH INSTRUCTS?

Granted that one can change how one’s estate is to be divided, is it halachically correct to do so? Does the Torah require us to follow its yerusha laws, or are these merely default procedures if someone made no other provisions?

We can answer this question by analyzing the following incident:

Rav Papa was negotiating a shidduch for one of his sons (he had ten) with the daughter of Abba Soraah. When Rav Papa traveled to discuss the dowry Abba Soraah would provide, he was accompanied by Yehudah bar Mareimar, who declined to enter Abba Soraah’s house. Rav Papa invited Yehudah bar Mareimar to join him, but Yehudah bar Mareimar declined the invitation.

Rav Papa then asked Yehudah bar Mareimar, “Why do you not want to join me? Is it because you feel that my negotiating violates Shmuel’s ruling, ‘Do not be among those who transfer inheritance, even from a sinful son to a good one, since one never knows – perhaps the bad son will raise fine children?’” Following Shmuel’s ruling, one should certainly not transfer property to the daughter that rightfully belongs to the son. “However,” continued Rav Papa, “this is not a correct application of Shmuel’s rule, since there is another rabbinic ruling of Rabbi Yochanan quoting Rabbi Shimon ben Yochai that encourages people to provide substantial dowries for their daughters.”

Yehudah bar Mareimar responded, “Indeed Rabbi Yochanan ruled that we encourage men to provide their daughters with dowries — but we do not pressure them to do so” (Kesubos 52b- 53a).

We can derive several principles from this passage:

1. One should provide for one’s daughter in order to encourage her marriage, even when this reduces the amount available for inheritance.

2. One should not pressure someone to provide a substantive dowry for his daughter’s shidduch.

3. Although one can disinherit an heir, Chazal discourage this practice, even if the heir is an evil person, since he may have righteous children who should not be deprived of their just portion. One is certainly discouraged from transferring the inheritance to someone who is not a halachic heir at all.

The Shulchan Aruch codifies this last rule: “The Sages are displeased with someone who gives away his property to others and abandons his heirs, even if they do not treat him properly” (Choshen Mishpat 282:1; note comments of Sm’a, and Shu’t Chasam Sofer, Choshen Mishpat #153).

The authorities dispute whether this prohibition applies only to the testator or includes even others who assist him in transferring the inheritance. According to the Chasam Sofer, a rav who teaches how to transfer inheritance violates this rabbinic prohibition! (Shu’t Chasam Sofer, Choshen Mishpat #153; cf. Shevet HaLevi 4:116, who quotes authorities who disagree.)

 

SHTAR CHATZI ZACHOR

An old custom, dating back hundreds of years, was to draft a shtar chatzi zachor, which provided daughters with half of what their brothers inherit. (The words shtar chatzi zachor mean a document providing half that of a male child.) Several early authorities approve this practice, even though it transfers property from the male heirs, because providing for one’s daughters enhances their chance of finding suitable shidduchin (Shu’t Maharam Mintz #47, quoted by Nachalas Shivah 21:4:2). Although Rabbi Shimon ben Yochai, quoted in the above Gemara, encouraged providing only a dowry for one’s daughter and made no mention of inheritance, these poskim contend that knowing that she will eventually inherit also entices a potential groom. (However, note that Shu’t Maharam Rottenberg #998 disagrees with this approach, implying that he would object to the practice of shtar chatzi zachor.)

CONTEMPORARY PRACTICE

It is now common for wills to provide equally for all children, both sons and daughters, and to ignore the bechor’s double portion. Contemporary poskim suggest that one should follow whatever practice is necessary to avoid a machlokes caused by unrealized expectations, and advise asking a rav for direction (Gesher HaChayim, 1:8; MiDor LeDor pg. 36). Many authorities recommend that one set aside a small amount of property to be divided according to the laws of yerusha (based on Tashbeitz end of 3:147, quoted by Ketzos HaChoshen 282:2).

The Gesher HaChayim records a story of a talmid chacham who wanted his estate divided exactly as the Torah instructs, legally arranging that his bechor should receive a double portion and that only his sons, and not his daughters, receive inheritance. Unfortunately, the result of this distribution was a legacy of machlokes that created a tremendous chillul Hashem. For this reason, the Gesher HaChayim recommends that a person divide his estate among his children in a way that maintains shalom.

ABANDONING HEIRS

Other than the two reasons mentioned above, (1) encouraging daughters’ shidduchin (2) maintaining harmonious relationship among family members, halacha frowns strongly on disinheriting the rightful heirs in favor of those who are not, and disapproves of providing more for one heir at the expense of another (Rashbam, Bava Basra 133b). In order to explain this better, let us examine the following case:

Mr. Rubinstein, who has no children, would like to divide his estate equally among all his nephews and nieces. However, only some of his nephews are his halachic heirs, those who are sons of his brothers. The nephews who are sons of his sisters are not halachic heirs, nor are any of his nieces. If Mr. Rubinstein divides all his property among all his nephews and nieces evenly, he has violated Chazal’s concept of not transferring inheritance, since he has given away his halachic heirs’ portion to those who are not his heirs.

Note that in this case, the two reasons that permit transferring inheritance do not apply. Mr. Rubinstein is not obligated to provide for his nieces’ marriages nor is it likely that limiting his will to his halachic heirs will create a family dispute.

May Mr. Rubinstein give most of his estate to his nieces and sisters’ sons, as long as he bequeaths some according to the laws of yerusha? The halachic authorities debate this question, some maintaining that one may give a large part of one’s estate to those who are not halachic heirs, provided that each heir receives some inheritance. According to this opinion, Mr. Rubinstein may dispose of his property any way he chooses, provided he leaves part of the estate according to the laws of yerusha.

Other authorities prohibit any action that deprives the halachic heirs of their rightful portion (Shu’t Chasam Sofer, Choshen Mishpat #151). Furthermore, it should be noted that the prohibition against transferring inheritance applies even when the heirs are not his sons (see Shu’t Chasam Sofer Choshen Mishpat #151; Aruch HaShulchan, Choshen Mishpat 282:3; Shu’t Shevet HaLevi 4:116).

TZEDAKAH

Is it considered abandoning one’s heirs if one bequeaths sizable amounts of one’s estate to tzedakah?

Some authorities contend that it is not, and one may leave even one’s entire fortune to tzedakah. The reason for this approach is very interesting.

A person has no obligation to acquire assets in order to fulfill the mitzvah of yerusha. Furthermore, one has the right to use up all one’s financial resources, while alive, in any way one chooses and leave nothing to his heirs. After all, as owner of the property he is free to do with it as he sees fit.

Donating tzedakah, reasons the Chasam Sofer, is using money for oneself, since all the merits accrue to the donor. Just as one may use his resources for himself however one chooses, so may one donate all the resources that he will no longer need to tzedakah, without violating the prohibition of transferring inheritance. The Chasam Sofer reasons that this is equivalent to the testator keeping the property for himself, since he receives all the reward for the tzedakah he gives (Shu’t Chasam Sofer, Choshen Mishpat #151). (From this perspective, you can take it with you!!)

However, although some earlier authorities (Rama, Yoreh Deah 249:1) concur with the Chasam Sofer’s conclusions, others contend that one should limit his tzedakah bequests to one third or one half of one’s assets (Rabbi Akiva Eiger ad loc., quoting Sheiltos; Chachmas Odom 144:12). Still others feel that one should not give substantial amounts of tzedakah at the expense of the heirs, unless the heirs are acting inappropriately (Shu’t Maharam Rottenberg #998).

CONCLUSION

It is important to realize that one’s legal rights and responsibilities are not governed by secular law. A Torah Jew understands that Hashem’s Torah is all-encompassing, and that it directs every aspect of one’s life. Thus, one should discuss with one’s rav all aspects of the important shaylah — how to draw one’s will.

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